Latest / Bloomberg Law / Boat Strikes, Impeachment Threats & Immigration Judges

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Boat Strikes, Impeachment Threats & Immigration Judges · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grosseo from Bloomberg Radio.
0:08
Speaker 2: What I saw in that room was one of the
0:10
Speaker 2: most troubling things I've seen in my time in public service.
0:14
Speaker 2: You have two individuals in clear distress, without any means
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Speaker 2: of locomotion, with a destroyed vessel, who were killed by
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Speaker 2: the United States.
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Speaker 3: Congressman Jim Hines, the top Democrat on the House Intelligence Committee,
0:32
Speaker 3: described his reaction to video footage of the second attack
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Speaker 3: that killed two survivors after an initial strike on an
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Speaker 3: alleged drug boat in international waters near Venezuela on September two.
0:47
Speaker 3: Admiral Frank Bradley, who oversaw the attack, and General Dan Caine,
0:52
Speaker 3: chairman of the Joint Chiefs of Staff, briefed lawmakers today
0:56
Speaker 3: in a closed door session. Lawmakers and legal experts have
1:00
Speaker 3: questioned whether a war crime was committed, and two Congressional
1:04
Speaker 3: panels have opened inquiries to determine whether Bradley or Secretary
1:09
Speaker 3: of Defense Pete Hegsith might be culpable for orders they
1:13
Speaker 3: issued during the operation. After the briefing, Hind said, the
1:18
Speaker 3: admiral confirmed that there had not been a kill them
1:21
Speaker 3: all order as reported, and that there was not an
1:24
Speaker 3: order to grant no quarter.
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Speaker 2: Admiral Bradley and the Chairman of the Joint Chiefs of
1:30
Speaker 2: Staff did the right thing, and Admiral Bradley defended the
1:37
Speaker 2: decisions taken. And Admiral Bradley has a storied career and
1:42
Speaker 2: he has my respect.
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Speaker 3: Joining me is Professor Joshua Castenberg of the University of
1:47
Speaker 3: New Mexico Law School. He was a military judge and
1:51
Speaker 3: lawyer in the US Air Force. Josh Democratic Senator Chris
1:56
Speaker 3: Van Holland said the second strike was an extra judicial killing,
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Speaker 3: amounting to murder or a war crime. What's your analysis
2:05
Speaker 3: of the second strike?
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Speaker 1: So my take on the second strike is partly colored
2:10
Speaker 1: by the fact that the administration has this changing narrative constantly,
2:16
Speaker 1: and the latest narrative that they come up with is
2:18
Speaker 1: implausible that somehow these men were going to climb back
2:22
Speaker 1: on the vessel and continue on in their cocaine run.
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Speaker 1: So having said that, look, you know, the United States
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Speaker 1: has convened grand juries for murder on the high seas
2:32
Speaker 1: going back to the War of eighteen twelve, and there's
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Speaker 1: a federal statute prohibiting precisely what occurred, you know, murder
2:40
Speaker 1: on the High Seas. Now, of course, Trump himself is
2:45
Speaker 1: immune from any criminal liability thanks to the Supreme Court's
2:49
Speaker 1: decision over a summer ago, and you know, Trump versus
2:52
Speaker 1: United States. But it seems to mean that nobody else
2:56
Speaker 1: is immune from that kind of a charge and the
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Speaker 1: other and who's going to pursue it. I don't think
3:02
Speaker 1: the Attorney General of the United States is going to
3:06
Speaker 1: differ from the White House's version of events or their
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Speaker 1: own legal reasoning.
3:11
Speaker 3: One of the things that heg Seth said yesterday was
3:14
Speaker 3: that he left the room, he had other meetings before
3:19
Speaker 3: the second strike. Let's just say that's true. Who's responsible
3:24
Speaker 3: the commander Navy Vice Admiral Frank Bradley, who ordered it,
3:30
Speaker 3: or the Defense secretary who reportedly approved the overall operation.
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Speaker 1: Well they all are. And I'm chuckling in a sad
3:38
Speaker 1: kind of way about that claim of Secretary of Defense
3:43
Speaker 1: or Secretary of War. Heg Seth's answer and claim, because
3:47
Speaker 1: at the end of the day, it really doesn't matter
3:50
Speaker 1: in this regard. You know, coming out of World War One,
3:54
Speaker 1: if not the Civil War, the United States embraced the
3:58
Speaker 1: doctrine of command responseility, and we particularly saw that play
4:02
Speaker 1: out in World War Two at the Nuremberg and International
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Speaker 1: Tribunal for or crimes in Tokyo. Those trials, and even
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Speaker 1: in US law when the Army under General MacArthur prosecuted
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Speaker 1: generally Yamashta, nobody ever alleged that he was the trigger
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Speaker 1: puller or gave an order for his troops to massacre
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Speaker 1: thousands of innocent Filipinos. Is the United States liberated the
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Speaker 1: island they prosecuted, and for failing to control as troops
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Speaker 1: and for creating the environment where it would be made possible.
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Speaker 1: The only thing in a real rule of law setting
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Speaker 1: that would save Hegsath is if he preferred uc him
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Speaker 1: j charges against the individual who gave the order. But
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Speaker 1: I don't think that's going to happen. I think they're
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Speaker 1: all banking on protection from Republican allies in the House
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Speaker 1: and Senate, in their favorite go to media sources, and
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Speaker 1: then ultimately presidential pardons, which have now been given to
4:59
Speaker 1: Honduran drug dealers.
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Speaker 3: With the news of this second strike, it seems like
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Speaker 3: at tension has been diverted a little from the Trump
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Speaker 3: administration's main campaign against suspected drug smugglers, where the military
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Speaker 3: has killed eighty three people. What do you think about
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Speaker 3: the legality of the whole campaign.
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Speaker 1: So we are not at war with Venezuela, and the
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Speaker 1: idea that United States domestic law can reach into Venezuelan
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Speaker 1: waters has no basis. However, and this is a big caveat.
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Speaker 1: Under international maritime law, any nation can stop actions such
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Speaker 1: as piracy or other high crimes that occur on the sea.
5:48
Speaker 1: In order to do that, you have to have absolute
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Speaker 1: correct intelligence that a crime such as international drug trafficking
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Speaker 1: is a occurring, and there has to be some sort
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Speaker 1: of agreement among nations that that is occurring. And on
6:06
Speaker 1: top of that, you have to be able to show
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Speaker 1: that what you're doing is consistent proportionality wise to the
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Speaker 1: crime involved. And the problem with that second aspect of it,
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Speaker 1: the proportionality aspect, is that the United States Coast Guard,
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Speaker 1: which most often does not use that kind of lethal force,
6:28
Speaker 1: does an excellent job of stopping kilo upon keilo upon
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Speaker 1: kilo of cocaine coming into the United States. They don't
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Speaker 1: catch at all. So you know, the argument that this
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Speaker 1: is lawful is sort of stretching the realism of law
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Speaker 1: into the alice in Wonderland of law.
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Speaker 3: Also yesterday, a Pentagon inspector Jennal's report delivered to lawmakers
6:55
Speaker 3: found that hag Seth's actions in what's been called sig
7:00
Speaker 3: Gate posed a risk to personnel and missions. But again,
7:05
Speaker 3: is this going anywhere? Even if it did well.
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Speaker 1: First of all, you'd have to have a member of
7:11
Speaker 1: the House file an article of impeachment. The article of
7:15
Speaker 1: impeachment would have to be taken up by a committee,
7:18
Speaker 1: then by the House. I don't see an appetite for
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Speaker 1: forcing heg Seth out through the legislative branch by the
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Speaker 1: Republican Party. Now he of course could resign. The President
7:29
Speaker 1: could fire him, but I don't see an appetite right
7:33
Speaker 1: now for that in the White House either, or that
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Speaker 1: that's possible in terms of the criminal law of the
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Speaker 1: United States. I don't see any action going against him
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Speaker 1: on that one. At the end of the day, Unfortunately,
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Speaker 1: all it is likely to do is to create a
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Speaker 1: historic legacy on the character of Hegseth himself. But it
7:53
Speaker 1: also erodes trust within the department, because if you're a
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Speaker 1: uniform warfighter, you need to have trust in your chain
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Speaker 1: of command, and this certainly erodes it.
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Speaker 3: Let's turn now to the video released last month by
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Speaker 3: six Democratic members of Congress directly addressing active duty military
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Speaker 3: and intelligence personnel.
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Speaker 1: Right now, the threats to our constitution aren't just coming
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Speaker 1: from a miroad, but from right here at home.
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Speaker 4: Our laws are clear.
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Speaker 1: You can refuse illegal orders.
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Speaker 4: You can refuse illegal orders.
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Speaker 3: You must refuse illegal orders. No one has to carry
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Speaker 3: out orders that violate the law or our constitution. All
8:35
Speaker 3: six who have military or intelligence backgrounds were just telling
8:40
Speaker 3: service members and intelligence officers what the law is. Yet
8:46
Speaker 3: President Trump has called them traders and said they were
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Speaker 3: engaging in seditious behavior punishable by death.
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Speaker 1: Well, first of all, all the members of the House
8:57
Speaker 1: and Senate who made that VIDI said was you have
9:02
Speaker 1: a duty to obey the law, and that includes a
9:04
Speaker 1: duty to disobey on lawful orders. That's a correct statement
9:09
Speaker 1: of the law. And I don't think that any investigation
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Speaker 1: into those members should ever come up as a result
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Speaker 1: of them making a correct statement of the law. I
9:20
Speaker 1: think that you know that that concern is real based
9:23
Speaker 1: on this belicosity that's come out of the White House,
9:28
Speaker 1: and that belicosity includes the use of the federalized National
9:33
Speaker 1: Guard in our cities.
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Speaker 3: Apparently the FBI headquarters is pressuring. This is, according to
9:39
Speaker 3: Bloomberg reporting, the bureau's domestic terrorism agents to open a
9:44
Speaker 3: seditious conspiracy investigation into those six Democratic lawmakers.
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Speaker 1: Yeah. You know. I was asked the other day in
9:54
Speaker 1: the local news if there is precedent for this, or
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Speaker 1: precedent for a military investigation, and to Senator Mark Kelly,
10:04
Speaker 1: and I said no that there is not, not in
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Speaker 1: the United States. There is precedent for it elsewhere. One
10:12
Speaker 1: of the things that the framers of our constitution and
10:15
Speaker 1: all their genius wanted to do was to create a
10:19
Speaker 1: government that was responsible to the people through the legislative branch.
10:24
Speaker 1: And the last time something like this happened wasn't in
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Speaker 1: the United States. It was before the United States was created.
10:33
Speaker 1: It was Oliver Cromwell using his new Model Army to
10:37
Speaker 1: pressure Parliament to take votes the way that he wanted
10:41
Speaker 1: them to take votes, including the execution of Charles the First.
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Speaker 1: We built a constitution to prevent the very thing that
10:50
Speaker 1: apparently the FBI's leadership seems to now think is plausible
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Speaker 1: seditious conspiracy. Look to me, if it was a high
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Speaker 1: crime or misdemeanor, it's the attempt to cower members of
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Speaker 1: Congress from exercising their free speech rights. It's not the
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Speaker 1: exercise of those free speech rights themselves.
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Speaker 3: Is it sort of absurd to claim that you know
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Speaker 3: under that statute that this was seditious conspiracy?
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Speaker 1: Again, I go back to my Alice in Wonderland quote. Yes,
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Speaker 1: in the rule of law, it certainly is that you
11:28
Speaker 1: need to go back to the Civil War, and you
11:30
Speaker 1: can look at members of Congress slaveholder like Benjamin Gwynn
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Speaker 1: Harris from Maryland, or a pacifist like Alexander Long, who
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Speaker 1: gave anti war speeches and in Harris's case, who actually
11:44
Speaker 1: gave a prayer on the floor of Congress for a
11:47
Speaker 1: Southern victory. And at no time were those two sitting
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Speaker 1: members of Congress investigated or prosecuted by the Lincoln Admiration.
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Speaker 1: I know there are people who say, well, what about
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Speaker 1: Van Lane, but the Landingham was no longer in Congress,
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Speaker 1: and even that episode has been condemned today. So no,
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Speaker 1: I mean this. You know, every time you and I
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Speaker 1: speak about the administration, I say, look, they're pushed the envelope.
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Speaker 1: But on this particular case, this truly is it's beyond absurd,
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Speaker 1: It's truly an affront to the Constitution, the separation of powers,
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Speaker 1: and the ability of members of Congress to represent their
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Speaker 1: constituents on the very fundamental positions that a majority of
12:32
Speaker 1: their constituents elected them to do. Again, it goes back
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Speaker 1: to the pre revolutionary days, the mentality of Cromwell and
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Speaker 1: the rule of the major generals and the dictatorship of
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Speaker 1: the mid sixteen hundreds in Britain, the very thing we
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Speaker 1: had a revolution against.
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Speaker 3: Thanks so much, josh that's Professor Joshua Castenberg of the
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Speaker 3: University of New Mexico Law School. Coming up next. Why
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Speaker 3: do Republicans keep filing articles of impeachment against judge they
13:00
Speaker 3: disagree with? This is Bloomberg.
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Speaker 1: I am right now calling on the House of Representatives
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Speaker 1: to impeach Judge bosor.
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Speaker 3: Republican Senator Ted Cruz has been on something of a
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Speaker 3: crusade to impeach judges who issue decisions he doesn't agree with,
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Speaker 3: not only calling for the impeachment of Judge James Boseberg,
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Speaker 3: the chief judge of the District Court for the DC's Circuit,
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Speaker 3: but also Marilyn Judge Deborah Boardman. Cruise even scheduled a
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Speaker 3: Senate Judiciary subcommittee hearing entitled Impeachment Holding Rogue Judges Accountable,
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Speaker 3: although that hearings schedule for Wednesday was abruptly canceled on
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Speaker 3: Wednesday morning. Cruise isn't alone. Republicans have filed a wave
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Speaker 3: of impeachment resolutions this year against judges they disagree with,
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Speaker 3: despite the fact that only fifteen judges have faced impeachment
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Speaker 3: since eighteen oh five and none since twenty ten. More
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Speaker 3: than fifty retired federal judges appointed by presidents of both
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Speaker 3: parties are warning that using impeachment as a tool for
14:06
Speaker 3: political retaliation against judges is a dangerous violation of constitutional
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Speaker 3: norms and judicial independence. My guest is retired federal appellate
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Speaker 3: Judge Paul Michelle, who is on the DC Federal Circuit
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Speaker 3: Court of Appeals. Judge Michelle, why do you think Republicans
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Speaker 3: are continuing to call for the impeachment of federal judges
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Speaker 3: when it's so highly highly unlikely that a judge would
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Speaker 3: be impeached, So why go through this effort?
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Speaker 5: Well, June, I think that there is a campaign underway
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Speaker 5: that seems intended to intimidate judges, to try to shatter
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Speaker 5: their independence and their ability to rule. Impartially under the law.
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Speaker 5: It's an attempt to influence their decisions, which is completely improper.
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Speaker 5: Under our constitutional system, judges are intended to be impartial,
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Speaker 5: independent of both the Congress and the executive branch. It's
15:10
Speaker 5: worked well for nearly two hundred and fifty years, and
15:13
Speaker 5: there's no basis that makes any sense for departing from
15:17
Speaker 5: that tradition and those precedents. Now. I think the Republican
15:21
Speaker 5: members who are participating in this kind of a campaign
15:25
Speaker 5: are just reacting to pressure from the administration and worries
15:30
Speaker 5: about reelection and contributions and the like. But that's not
15:35
Speaker 5: a good excuse because they know full well that disagreement
15:40
Speaker 5: with a ruling by a judge is not a proper
15:43
Speaker 5: ground for impeachment or removal from office. It's not even
15:48
Speaker 5: close to a proper ground, because the Constitution itself spells
15:52
Speaker 5: out explicitly what the proper grounds are, and as you know,
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Speaker 5: the phrase is treason, bribery, or other high crimes and misdemeanors,
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Speaker 5: and clearly a judicial ruling applying the law as best
16:08
Speaker 5: the judge can is none of those things, and therefore
16:12
Speaker 5: not even close to being a candidate for impeachment, much
16:17
Speaker 5: less trial in the US Senate. So I think it's
16:21
Speaker 5: basically an exercise and intimidation, a publicity stunt, and not
16:26
Speaker 5: a serious effort, and it's not responsible. And worse than that,
16:30
Speaker 5: it's harmful to the country because it shakes the confidence
16:34
Speaker 5: of all American citizens in the independence and rectitude of
16:40
Speaker 5: the courts. And everybody in the end depends on the
16:44
Speaker 5: courts to protect their rights. So everybody has a stake
16:48
Speaker 5: in this, not just rich people or big corporations. Every
16:52
Speaker 5: individual citizen is threatened if the court's rule under political
16:57
Speaker 5: coercion rather than the steady precedents of statutes and higher
17:03
Speaker 5: court rulings. So this is really a very big deal,
17:07
Speaker 5: a very big turning point for the country. And for
17:10
Speaker 5: two centuries and more we haven't had this. We've only
17:14
Speaker 5: had a total of thirteen judges impeached and about seven
17:18
Speaker 5: were convicted at Senate trial, and in every case it
17:22
Speaker 5: was for plainly serious crimes like outright money bribery. Sorry
17:28
Speaker 5: to say that a judge was guilty of such conduct,
17:31
Speaker 5: but a few have been over the two hundred years.
17:34
Speaker 5: But this is totally different. This has nothing to do
17:37
Speaker 5: with high crimes. This is high politics.
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Speaker 3: So judges are human. Do you think that any of them,
17:43
Speaker 3: perhaps concerned for their safety the safety of their families,
17:47
Speaker 3: are being intimidated in some way.
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Speaker 5: Well, there's certainly efforts to try to intimidate them and
17:55
Speaker 5: coerce them and affect their rulings. And you're quite correct
17:59
Speaker 5: to put not only on the judges but on their families.
18:03
Speaker 5: Judges have had various forms of harassment, over one hundred
18:07
Speaker 5: cases of unordered pizzas being delivered, often late at night.
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Speaker 5: In many cases, the pizza deliveries have cited the name
18:15
Speaker 5: of the murdered son of a judge in New Jersey,
18:18
Speaker 5: Esther Sallas. Her son answered the door. She was obviously
18:22
Speaker 5: the target of the assassin, but the son happen to
18:25
Speaker 5: answer the door and was shot and killed. Judge Sallas's
18:29
Speaker 5: husband was critically wounded. Fortunately the judge herself was not.
18:33
Speaker 5: But the whole thing was a horror show. And so
18:36
Speaker 5: when today's judges get pizzas in the name of Daniel Anderley,
18:42
Speaker 5: it's a message they know Daniel Anderley was the murdered
18:45
Speaker 5: son of a fellow judge, And judges tell us that
18:50
Speaker 5: they knew when they took the job and of course
18:52
Speaker 5: all judges are volunteers. No one has to be a judge.
18:55
Speaker 5: It's a high honor. And you know you're going to
18:58
Speaker 5: be unpopular with a lot of peace. That's in the
19:01
Speaker 5: nature of the job. You know you'll be criticized in
19:05
Speaker 5: the media. You know that there will be parties who
19:08
Speaker 5: will be very unhappy with your rulings. Sometimes both parties
19:11
Speaker 5: are unhappy, always one party, the losing party, is extremely unhappy,
19:16
Speaker 5: and often there is criticism from many other people. Judges
19:20
Speaker 5: all know that they accept that what they can't accept
19:23
Speaker 5: is serious threats. So, for example, when the swat team
19:27
Speaker 5: shows up at a judge's house at midnight based on
19:30
Speaker 5: a malicious false report of a shooting in progress, it
19:34
Speaker 5: scares the devil out of the whole family and upsets
19:37
Speaker 5: the judge. So it's not just pizza deliveries, it's also
19:41
Speaker 5: swat teams. It's also vicious death threats, phone calls, text messages,
19:47
Speaker 5: and even that children of some judges have been harassed
19:51
Speaker 5: on their way to school by fanatical individuals who've been
19:55
Speaker 5: inflamed by extreme rhetoric on social media, including some of
19:59
Speaker 5: it coming from high government officials and members of the Congress,
20:03
Speaker 5: which is just despicable and very unfortunate. We've never had
20:08
Speaker 5: that before in this country and we shouldn't tolerate it.
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Speaker 3: Now, speaking of members of Congress, Senator Ted Cruz, who
20:16
Speaker 3: leads the sub committee, has called for the impeachment of
20:20
Speaker 3: Judge James Boseberg, a judge whom the Attorney General has
20:24
Speaker 3: called out by name. Why do you think Boseburg has
20:27
Speaker 3: been repeatedly targeted.
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Speaker 5: Well, he's one of a number of judges who's ruled
20:33
Speaker 5: in cases involving challenges to the lawfulness of administration actions,
20:39
Speaker 5: and like some of the other judges, not in every case,
20:43
Speaker 5: but in some cases they've ruled that the law was
20:46
Speaker 5: violated by the administration. And in Judge Boseburg's case, Chief
20:50
Speaker 5: Judge Boseburg, I should say it was more than one
20:54
Speaker 5: case that upset the administration. Now, as to Senator Cruz,
20:59
Speaker 5: Senator Cruz is an exceptionally smart individual, a very well
21:04
Speaker 5: qualified lawyer of great experience. He's an absolutely superb advocate
21:10
Speaker 5: and was the leading solicitor for the state of Texas
21:14
Speaker 5: before he became a senator. He was a White House
21:16
Speaker 5: lawyer before that, and you know the rest of his biography.
21:20
Speaker 5: He knows better. He knows these are not impeachable offenses.
21:25
Speaker 5: He knows it clearly, So I can only guess that
21:28
Speaker 5: he's acting for other motives not to apply the law
21:33
Speaker 5: of impeachment. Again, whether it's the hearings threatened by Chairman
21:38
Speaker 5: Cruise of the Judiciary Subcommittee on the Courts, or whether
21:44
Speaker 5: it's somebody in the White House or the Justice Department,
21:47
Speaker 5: these threatening verbal attacks cause real danger to judges that
21:52
Speaker 5: the Marshal Service has bedded and declared that there are
21:58
Speaker 5: hundreds of serious threats, just crank threats. We're used to
22:01
Speaker 5: crank threats, that's not so serious, but serious threats and dangers.
22:05
Speaker 5: As you know, Justice Kavanaugh had a would be assassin
22:09
Speaker 5: armed on his block prowling around looking for Justice Kavanaugh
22:14
Speaker 5: and that individuals recently convicted and sentenced. So the dangers
22:19
Speaker 5: are really quite real.
22:21
Speaker 1: Now.
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Speaker 5: You asked a very good question earlier. Are the judges
22:24
Speaker 5: actually being intimidated in the sense that they're changing their
22:28
Speaker 5: ruling from what they would normally rule. I don't know
22:32
Speaker 5: of any instance of that so far, but the pressure
22:36
Speaker 5: campaign has been going on. It started years ago. This
22:39
Speaker 5: is not only under the present administration. But it has
22:42
Speaker 5: ramped up dramatically in the last ten months. And ultimately, judges,
22:48
Speaker 5: however courageous and committed they are, and I think they
22:51
Speaker 5: are both to a man to a woman, who were
22:54
Speaker 5: not perfect. But we are devoted to the country. That's
22:58
Speaker 5: why instead of making a lot of money a big
23:00
Speaker 5: fancy law firm or corporation, we became judges at far
23:04
Speaker 5: far lower salaries. It's an honor to serve the people.
23:08
Speaker 5: I did it for twenty two years. I loved every
23:10
Speaker 5: day of it, and all the judges talk about it
23:13
Speaker 5: that way. But ultimately, judges too are human, and if
23:17
Speaker 5: they feel like their family members are terrified and their
23:21
Speaker 5: children are being harassed, and there are death threats coming
23:24
Speaker 5: in that the Marshall Service evaluates as serious, at some
23:28
Speaker 5: point humans are going to have a stress point of failure,
23:32
Speaker 5: just like a wing on an airplane. You know, enough
23:34
Speaker 5: stress and you can break anything, particularly when it's elongated
23:38
Speaker 5: over time. And that's what we're seeing here. So, yeah,
23:41
Speaker 5: they're holding up fine now, but can we be assured
23:45
Speaker 5: they'll continue to hold up fine if this pressure campaign,
23:48
Speaker 5: which keeps escalating, goes on and on and on, and
23:52
Speaker 5: the Article three coalition of which I'm a part. As
23:55
Speaker 5: you know, it's an arm of Keep our Republic of
23:58
Speaker 5: pre Existing Check charitable Civics education organization that's been in
24:03
Speaker 5: operation for about five years. The coalition is new just
24:07
Speaker 5: this year. It has fifty two retired judges, both trial
24:11
Speaker 5: and impellate as members, and incidentally, about half of them
24:15
Speaker 5: were appointed by Republican administrations and the other half by
24:18
Speaker 5: Democratic administration, so it's totally balanced, and it's really non
24:22
Speaker 5: political because it's a group of people devoted to the
24:25
Speaker 5: rule of law, not the rule of any one man
24:28
Speaker 5: or woman. So this is a very dramatic moment for
24:32
Speaker 5: the country to come to grips with, and I'm very
24:35
Speaker 5: hopeful that the unbroken tradition and precedent of two hundred
24:40
Speaker 5: and fifty years will will carry forward and be honored
24:44
Speaker 5: by everybody in power now and hopefully the really vicious rhetoric,
24:49
Speaker 5: really inflammatory rhetoric, people being called leftist lunatics and people
24:54
Speaker 5: who hate America and rogue judges or activist judges. If
24:59
Speaker 5: a judge is ruling on the basis of personal politics,
25:03
Speaker 5: that would be fair to say that's an activist judge.
25:06
Speaker 5: You could also say it's a completely improper judge, betraying
25:09
Speaker 5: their oath. But if a judge rules against an administration
25:13
Speaker 5: because of a statute, it's the job of the judge
25:17
Speaker 5: to interpret the statute and apply it. And if the
25:19
Speaker 5: judge finds that the administration's action is contrary to law,
25:25
Speaker 5: the judge is obligated to so rule and to impose remedies,
25:29
Speaker 5: including injunctions. That's not being activists, that's not being rogue.
25:35
Speaker 5: It's actually just a judge doing the normal thing that
25:38
Speaker 5: judges do every single day. That's actually their job. So
25:42
Speaker 5: instead of being castigated, they should be respected. You don't
25:45
Speaker 5: have to agree with them, you don't have to like them,
25:48
Speaker 5: you don't have to like their ruling. You can criticize them,
25:51
Speaker 5: including in strong terms in public, and that's a constitutional
25:55
Speaker 5: right of everybody. But to foment violence against is just
26:01
Speaker 5: beyond any reasonable line.
26:04
Speaker 3: Thanks so much for joining me today, judge. That's retired
26:07
Speaker 3: Judge Paul Michelle of the DC Federal Circuit Court of Appeals.
26:11
Speaker 3: Coming up next. Why the Trump administration is firing so
26:15
Speaker 3: many immigration judges? This is bloomberg. The Trump administration has
26:24
Speaker 3: fired dozens of immigration judges since January. Their employees of
26:29
Speaker 3: the Justice Department and not housed within an independent court system.
26:34
Speaker 3: The administration has targeted judges during or at the end
26:38
Speaker 3: of their two year probationary periods, as well as some
26:41
Speaker 3: who had sat on the bench for years. The administration
26:45
Speaker 3: is also installing military lawyers and immigration courts after eliminating
26:51
Speaker 3: certain requirements for temporary immigration judges. Former immigration judges have
26:56
Speaker 3: said the firings are aggravating existing case backs that have
27:01
Speaker 3: clogged the immigration court system and created years long wait
27:05
Speaker 3: times for foreign citizens to get decisions in their cases.
27:09
Speaker 3: Some of those let go, like other terminated employees across
27:13
Speaker 3: the federal government, learned of their dismissals in brief notices
27:17
Speaker 3: stating the Attorney General had determined under Article two authority
27:22
Speaker 3: that their continued employment wasn't in the nation's interest. Joining
27:27
Speaker 3: me is immigration expert Leon Fresco, a partner at Holland
27:30
Speaker 3: and Knight. He was the head of the Office of
27:33
Speaker 3: Civil Immigration Litigation in the Obama administration. Leon, why are
27:37
Speaker 3: they firing immigration judges? Doesn't that slow down the process?
27:43
Speaker 4: So this is one of the very challenging issues that
27:47
Speaker 4: is involved with regard to their building up of the
27:52
Speaker 4: infrastructure to try to create this larger enforcement or deportation framework.
27:59
Speaker 4: Is is they think that they can't build that structure
28:03
Speaker 4: out if there are too many sympathetic immigration judges in
28:06
Speaker 4: the structure, because then too many immigration judges will grant
28:11
Speaker 4: asylum or grant some other form of relief like cancelation
28:15
Speaker 4: of removal, or they'll allow people to refer their claims
28:20
Speaker 4: to USCIS because they'll have a qualifying family member who
28:24
Speaker 4: can save them from deportation. And they don't want any
28:28
Speaker 4: of that discretion that immigration judges have to save people
28:33
Speaker 4: in particular cases from deportation to be exercised in favor
28:38
Speaker 4: of the foreign national. And so you'll actually see this
28:41
Speaker 4: if you go on Twitter. Is that the way the
28:45
Speaker 4: administration currently describes what used to be known as an
28:48
Speaker 4: immigration judge, they call them a deportation judge. And they say,
28:52
Speaker 4: sign up to become a deportation judge. Apply to become
28:56
Speaker 4: a deportation judge. And so that is quite a new
29:00
Speaker 4: because you wouldn't have you know, suppose you see this
29:04
Speaker 4: every now and then in states and localities where people
29:08
Speaker 4: run for elected judge positions and they can't run and say, hey,
29:13
Speaker 4: I'm going to be a hanging judge, vote for me.
29:16
Speaker 4: You can't say that that's the kind of thing that
29:17
Speaker 4: will get you disqualified in every case moving forward. If
29:21
Speaker 4: you said you were running as a hanging judge. But
29:24
Speaker 4: here they're saying, sign up to be a deportation judge.
29:28
Speaker 4: And I don't know, sort of strategically, if that is
29:33
Speaker 4: going to be helpful if there's a future challenge to
29:36
Speaker 4: the manner in which people who applied to become deportation
29:40
Speaker 4: judges ended up making rulings in cases. So I just
29:44
Speaker 4: find that very fascinating.
29:46
Speaker 3: Is that why they're installing military lawyers at immigration courts?
29:51
Speaker 4: So they're trying to figure out ways to strain people
29:57
Speaker 4: who don't necessarily have a lot of immigration experience and
30:00
Speaker 4: on the background of immigration law, so that they can
30:05
Speaker 4: sort of say, here is a way to look at
30:08
Speaker 4: the law as opposed to people who had experienced immigration
30:11
Speaker 4: law and have come to it from the backbone of
30:14
Speaker 4: their experiences. They're trying to find people with less experience
30:18
Speaker 4: so they can train them and give sort of a
30:20
Speaker 4: patterned this is how you decide everything, and because they
30:23
Speaker 4: haven't seen it, they will say, okay, so this is
30:26
Speaker 4: the pattern. The issue is quite Interestingly, I've worked with
30:29
Speaker 4: a lot of members of the military who have come
30:32
Speaker 4: from the Judge Advocate General's office and other places, who
30:36
Speaker 4: go either to the Department of Justice or the immigration court,
30:39
Speaker 4: and it turns out a lot of them end up
30:41
Speaker 4: being just as sympathetic as any as anyone else, because
30:45
Speaker 4: people are human beings that they're super complicated and you
30:48
Speaker 4: can't just stereotype anybody or put them into any sort
30:52
Speaker 4: of bucket, and so all of these efforts, yes, you
30:58
Speaker 4: might be able to weigh it in oneicular way or another,
31:02
Speaker 4: but all of these efforts surprisingly will still yield sympathetic
31:06
Speaker 4: decisions in some cases because people are still human beings,
31:09
Speaker 4: and this is all an enterprise about humanity. At the
31:12
Speaker 4: end of the day. It's not about numbers, it's not
31:14
Speaker 4: about money, it's not about anything else. There's human beings
31:18
Speaker 4: in a court standing in front of you telling you
31:20
Speaker 4: their story. And it's just very hard, no matter who
31:23
Speaker 4: you are. Every day, if you're just going to just
31:25
Speaker 4: say the port, the port to port, the port, that
31:28
Speaker 4: just weighs on you if you know in your mind
31:31
Speaker 4: you're doing it in a way that's not fair to
31:34
Speaker 4: the law or consistent to the facts, and so I
31:37
Speaker 4: just think a lot of these efforts I understand where
31:40
Speaker 4: if you're doing it from the standpoint of the administration,
31:45
Speaker 4: you want to at least get people who aren't inclined
31:47
Speaker 4: to say yes every single time, because you're trying to
31:50
Speaker 4: create a more rigorous enforcement regime. So you don't want
31:54
Speaker 4: to have people who start with yes and begrudgingly go
31:58
Speaker 4: to know. You might want people who start with no
32:01
Speaker 4: and begrudgingly get the yes, But that's the best that
32:04
Speaker 4: anybody's going to be able to do in a situation
32:07
Speaker 4: like this. There's not going to be one hundred judges
32:10
Speaker 4: who are hired that all deport every single person in
32:13
Speaker 4: front of them, because that's just not the way these
32:16
Speaker 4: things tend to work.
32:18
Speaker 3: I want to ask you about denaturalization. So the Trump
32:21
Speaker 3: administration has made threats to revoke the citizenship of political
32:27
Speaker 3: foes who are naturalized citizens, and before that very friendly
32:31
Speaker 3: meeting in the Oval Office, there were threats to denaturalize
32:36
Speaker 3: and deport New York City may elect Zoran Mandami. Mandami
32:42
Speaker 3: is one of nearly twenty five million naturalized citizens currently
32:47
Speaker 3: living in the country. Is the Trump administration actively trying
32:52
Speaker 3: to denaturalize citizens.
32:54
Speaker 4: Well, they have people in the Justice Department, because the
32:57
Speaker 4: way the naturalization works is it's a very complicated thing.
33:01
Speaker 4: It's not something that is simple at all. You have
33:05
Speaker 4: to build a case. So just like the FBI has
33:08
Speaker 4: to build a criminal case, the Department of Homeland Security
33:11
Speaker 4: has to build a case as to why there was
33:14
Speaker 4: a misrepresentation made either in the green card process or
33:18
Speaker 4: the citizenship process. That then is material enough that if
33:23
Speaker 4: you go and you were to present you have to
33:26
Speaker 4: present a complaint in the federal court. That would work
33:29
Speaker 4: very similarly to an indictment in the sense that you've
33:32
Speaker 4: got to file it, you've got to have down then
33:34
Speaker 4: a trial, you've got to have that whole process, and
33:38
Speaker 4: you have to basically say, had we known this fact,
33:41
Speaker 4: we would have refused the case. That's basically what you
33:44
Speaker 4: have to show in that and so that's very intensive.
33:48
Speaker 4: You're talking about on any particular denaturalization case, hundreds of
33:53
Speaker 4: hours of total government work in terms of manpower in
33:56
Speaker 4: order to get that done. And so they do want
34:00
Speaker 4: to do that, but when we're talking about tens of
34:03
Speaker 4: thousands of people, they don't have the infrastructure in place
34:06
Speaker 4: to do that. So what they have to do is
34:09
Speaker 4: try to find cases that are sort of powerful cases
34:13
Speaker 4: where bold messages are sent about people who made misrepresentations
34:18
Speaker 4: in the process, because then that will yield the response
34:22
Speaker 4: perhaps that they might want of people then taking matters
34:24
Speaker 4: in their own hands and leaving because they're worried that
34:27
Speaker 4: they will get denaturalized. But in terms of having tens
34:30
Speaker 4: of thousands of denaturalizations, the problem is with that. You
34:34
Speaker 4: need lawyers from the Department of Justice who do those cases.
34:39
Speaker 4: You need obviously the federal courts to schedule those cases,
34:43
Speaker 4: you need the Department of Homeland Security to have people
34:46
Speaker 4: to investigate those cases, and so that infrastructure is there
34:51
Speaker 4: at most for twenty five hundred to five thousand cases
34:56
Speaker 4: a year, which would be, by the way, an exponential
35:00
Speaker 4: the higher record than has ever been done before. Usually
35:03
Speaker 4: we're talking about several hundred cases a year. So if
35:05
Speaker 4: you did five thousand the naturalization cases, that would be
35:10
Speaker 4: leaps and bounds above the highest that's ever been done.
35:13
Speaker 4: But the point being that's what you would maybe try
35:17
Speaker 4: to accomplish if you were in the Trump administration.
35:21
Speaker 3: Leon I read that there were a lot of denaturalizations
35:24
Speaker 3: during the Obama administration, but you never heard about it.
35:28
Speaker 4: Well, so here's what happened, because I was literally there.
35:31
Speaker 4: I was I know, I was in charge of the department.
35:35
Speaker 4: Is there was something called Operation Janice, which was a
35:39
Speaker 4: you know, Janus being the person with two phases. There
35:42
Speaker 4: was a discovery of a large number of people who
35:46
Speaker 4: had been deported from the United States at some point
35:50
Speaker 4: in their life. We're talking about when there was no
35:52
Speaker 4: serious technology in the eighties, in the seventies, you know,
35:57
Speaker 4: that kind of thing. And so what do they do
36:00
Speaker 4: if you're deported, You can't just come back into the
36:03
Speaker 4: United States. So they make up a new person that
36:05
Speaker 4: they are. And so they say, you know, yes, I
36:08
Speaker 4: may have been John Smith when I was deported, but
36:11
Speaker 4: now I'm Jerry Jones. And so you know, they don't
36:14
Speaker 4: tell you that they were John Smith. They just return
36:17
Speaker 4: as Jerry Jones in that situation. So there was about
36:21
Speaker 4: three hundred of those cases that were done during the
36:24
Speaker 4: Obama administration, which was considered it a lot, but still
36:27
Speaker 4: is it the kind of thing I'm talking about, which
36:30
Speaker 4: is that if they did five thousand, let's say, it
36:32
Speaker 4: would be a massive improvement over three hundred.
36:35
Speaker 3: Very interesting because I don't think many people know much
36:39
Speaker 3: about denaturalization. Thanks so much, Leon. That's Leon Fresco, a
36:44
Speaker 3: partner at hollanden Knight. In other legal news today, in
36:48
Speaker 3: a big win for Republicans, the conservative justices on the
36:52
Speaker 3: Supreme Court have cleared Texas to use a new Republican
36:56
Speaker 3: drawn congressional map for next year's election, bolstering GOP hopes
37:02
Speaker 3: of picking up as many as five new house seats
37:04
Speaker 3: in the state. Here's Bloomberg New Supreme Court reporter Greg
37:08
Speaker 3: Store with more on that decision.
37:10
Speaker 6: So, the Supreme Court said several things. Kind of the
37:14
Speaker 6: first half of it is we think the lower court
37:16
Speaker 6: got it wrong, and the second half of it is
37:18
Speaker 6: this decision came too close to the election to take effect.
37:22
Speaker 6: With the first half of it, the court said that
37:24
Speaker 6: the district court did not honor what it called the
37:29
Speaker 6: presumption of legislative good faith. In other words, the lower
37:32
Speaker 6: court was too quick to assume that the or to
37:36
Speaker 6: decide that the state was doing something it shouldn't do
37:40
Speaker 6: by using race too much. And then the second thing
37:43
Speaker 6: the Supreme Court said is that normally, in these racial
37:46
Speaker 6: gerrymandering cases, courts require somebody who's challenging a map to
37:52
Speaker 6: produce an alternative map that would have accomplished the state's
37:56
Speaker 6: goals in this case, drawing more Republican friendly seat without
38:01
Speaker 6: using race so much so, the lower court did not
38:05
Speaker 6: require that in this case, and the Supreme Court said
38:08
Speaker 6: that was a problem. So those were preliminary decisions by
38:11
Speaker 6: the Supreme Court, but they strongly suggest that they think
38:13
Speaker 6: the lower court got it wrong. And then the second
38:16
Speaker 6: half of it is that the Supreme Court in the
38:18
Speaker 6: past has said that federal courts need to be really
38:21
Speaker 6: careful about issuing rulings that change the election rules for
38:26
Speaker 6: states on the eve of an election. And because the
38:29
Speaker 6: candidate filing deadline is next week in Texas, we for
38:33
Speaker 6: the sake of Texas, are pretty much on the eve
38:35
Speaker 6: of the election.
38:36
Speaker 3: That's Bloomberg Supreme Court Reporter Greg Store and that's it
38:41
Speaker 3: for this edition of The Bloomberg Law Show. Remember you
38:43
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38:46
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38:50
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38:58
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