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Trump Wins at SCOTUS & With Law Firm Deals · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 2: In a high profile clash over presidential power, a sharply
0:13
Speaker 2: divided Supreme Court allowed President Donald Trump to resume deporting
0:18
Speaker 2: alleged Venezuelan gang members under an eighteenth century wartime law
0:23
Speaker 2: by a five to four vote. The justices tossed out
0:27
Speaker 2: a lower court order that had paused deportations under the
0:30
Speaker 2: Alien Enemies Act, but ruled that detainees must have noticed
0:35
Speaker 2: and a chance to make their case to a judge
0:38
Speaker 2: before being deported. The Court was bitterly divided, with the
0:42
Speaker 2: majority downplaying the significance of the decision and the minority,
0:47
Speaker 2: the three liberal justices and conservative Justice Amy Coney Barrett,
0:51
Speaker 2: complaining that the Court was rewarding the government for conduct
0:55
Speaker 2: that posed an extraordinary threat to the rule of law.
1:00
Speaker 2: Guest is Leon Fresco, a partner to Holland and Knight
1:03
Speaker 2: and the former head of the Office of Immigration Litigation
1:06
Speaker 2: in the Obama administration. Leon, let's get straight what the
1:10
Speaker 2: Court did and didn't rule. So the justices cleared the
1:14
Speaker 2: way for the government to continue using the Alien Enemies
1:18
Speaker 2: Act to deport alleged Venezuelan gang members, but they didn't
1:23
Speaker 2: rule on the core question of whether it was lawful
1:26
Speaker 2: for Trump to use the Act in this way.
1:29
Speaker 3: In the end, this was a very narrow ruling that
1:32
Speaker 3: really came down to whether the district court in the
1:36
Speaker 3: District of Columbia was the correct forum for challenges of
1:41
Speaker 3: the use of the Alien Enemies Act. And what the
1:44
Speaker 3: Supreme Court said in a five to four decision was
1:47
Speaker 3: that if someone wanted to challenge their detention and or
1:51
Speaker 3: removal under the Alien Enemies Act, they had to do
1:55
Speaker 3: it in a habeas corpus claim, not an administrative procedures claim,
2:01
Speaker 3: and that the habeas corpus claim needed to be filed
2:04
Speaker 3: in the location of the detention facility where they were held.
2:08
Speaker 3: So what had happened was when the President had signed
2:12
Speaker 3: the order invoking the Alien Enemies Act, these individuals were
2:17
Speaker 3: in the middle of being transferred, and it wasn't clear
2:20
Speaker 3: what kind of law applied in this situation. There was
2:23
Speaker 3: some bad case law from twenty twenty where just as
2:27
Speaker 3: Alito had written that you couldn't use habeas the challenge
2:30
Speaker 3: removal orders, and so it wasn't clear who could do what,
2:34
Speaker 3: And so the lawyers for the individuals that were detained
2:39
Speaker 3: under this Alien Enemies Act proclamation filed a lawsuit under
2:43
Speaker 3: the Administrative Procedures Act challenging what was a proclamation. So
2:48
Speaker 3: that was an administrative procedure in the District Court of Columbia,
2:52
Speaker 3: and that is where there was this oral injunction not
2:55
Speaker 3: to deport people. And then that oral order turned into
3:00
Speaker 3: written order. But by the time it was the planes
3:02
Speaker 3: that already landed in El Salvador, and the case continue
3:06
Speaker 3: up to the Supreme Court. But now the Supreme Court
3:08
Speaker 3: said that lawsuit in DC under the Administrative Procedures Act
3:13
Speaker 3: was incorrect and instead what needed to happen was there
3:16
Speaker 3: needed to be a habeas corpus claim. So the good
3:21
Speaker 3: news in terms of where we're at in this decision
3:26
Speaker 3: is there isn't really yet any interpretation one way or
3:31
Speaker 3: the other about anything substantive related to this Act. There's
3:36
Speaker 3: just a decision that that lawsuit needs to take place
3:40
Speaker 3: at the moment where they're held, which is the Southern
3:42
Speaker 3: District of Texas, which is in South Texas. Now, the
3:46
Speaker 3: other thing that's very interesting is all nine justices, even
3:50
Speaker 3: though it was a five to four decision agreed that
3:54
Speaker 3: the Alien Enemies Act was something that could be challenged
3:59
Speaker 3: in meaning that a person who is detained and that
4:04
Speaker 3: the government wants to deport under the Alien Enemies Act
4:07
Speaker 3: can ask for review on all of the following issues.
4:12
Speaker 3: Number one, was the act properly invoked? Second? Was the
4:17
Speaker 3: Act properly invoked as to this individual? And third does
4:22
Speaker 3: this individual have other defenses even if it was properly
4:25
Speaker 3: invoked in order to avoid deportation? All of those things
4:30
Speaker 3: can be challenged, according to the Supreme Court under a
4:34
Speaker 3: writ of habeas corpus, which was the original way people
4:37
Speaker 3: used to challenge their deportation for over one hundred years,
4:41
Speaker 3: but that had been foreclosed. In twenty twenty two, the
4:44
Speaker 3: Court had reopened it as a venue for challenging a
4:48
Speaker 3: deportation in this context of the Alien Enemies Act. So
4:53
Speaker 3: now at least there is some comfort, I guess. I
4:57
Speaker 3: would say that there aren't people in the United States
5:02
Speaker 3: who can be just detained and deported without any due process,
5:07
Speaker 3: which was an argument that was being made, and now
5:11
Speaker 3: that is not the case. All nine justices in the
5:14
Speaker 3: Supreme Court have said otherwise.
5:17
Speaker 2: So the justices might have agreed on the fact that
5:21
Speaker 2: the detainees should get notice and a review before being deported,
5:26
Speaker 2: But there was a sharply worded and fervent descent. Justice
5:31
Speaker 2: Sodo Mayor said the court's decision to rule now is
5:34
Speaker 2: as inexplicable as it's dangerous. She warned of life and
5:38
Speaker 2: death consequences. Complain that the court was creating new law
5:42
Speaker 2: on the emergency docket. So while the majority tried to
5:47
Speaker 2: make it, oh, this isn't about much, we all agreed
5:49
Speaker 2: on this, the descent is furious.
5:52
Speaker 3: Well, the concern, I think is of the following nature.
5:56
Speaker 3: Even after this decision was issued by the Supreme Court
6:00
Speaker 3: that basically said, this is just about whether it's about
6:04
Speaker 3: a habeas case or about an administrative procedure at case,
6:07
Speaker 3: and whether it should be filed in DC or whether
6:10
Speaker 3: it should be filed in the district where people are
6:12
Speaker 3: being detained. So that was it. That was the only
6:15
Speaker 3: thing that was decided in this case, because theoretically or technically,
6:20
Speaker 3: the order from the District Court judge in DC was
6:23
Speaker 3: vacated because the DC Court no longer was the right forum.
6:27
Speaker 3: The forum needs to be in South Texas. You already
6:31
Speaker 3: had tweets coming from the administration saying that the judge
6:36
Speaker 3: has been overruled and deportations will immediately begin again to
6:41
Speaker 3: El Salvador of Venezuelan people. And so that was the
6:45
Speaker 3: concern Justice sort Of Mayor was voicing, was, how is
6:49
Speaker 3: this court to guarantee that more people won't now be
6:53
Speaker 3: deported during this very short interim process where people are
6:59
Speaker 3: supposed to now challenge their deportation in the Southern District
7:04
Speaker 3: of Texas, because now those people have to file another
7:08
Speaker 3: complaint and they need to go through it. And yes,
7:12
Speaker 3: it's true the Supreme Court says they have to have
7:13
Speaker 3: an opportunity to do it, but they don't say how
7:16
Speaker 3: many days, what is the opportunity, et cetera. And so
7:21
Speaker 3: maybe the United States government takes the position that, well,
7:25
Speaker 3: if you didn't file it within fifteen minutes of the
7:28
Speaker 3: Supreme Court decision, then you've lost the opportunity in the
7:31
Speaker 3: notice to do this and we can start deporting people again.
7:34
Speaker 3: I don't know how much leeway the administration is going
7:38
Speaker 3: to take with regard to what is an adequate amount
7:42
Speaker 3: of notice, But in any case, that was the concern
7:45
Speaker 3: that Justice Soto Mayor was voicing there, and she did
7:49
Speaker 3: try to say in order to try to prevent such
7:53
Speaker 3: a scenario. And this was a sentence that even just
7:57
Speaker 3: as Tony Barrett actually signed on to, she signed on
8:00
Speaker 3: the parts of the decision and not others. She said
8:03
Speaker 3: that this is a very notable sentence. To the extent
8:06
Speaker 3: the government removes even one individual without affording him notice
8:11
Speaker 3: and a meaningful opportunity to file and pursue habeas relief,
8:15
Speaker 3: it does so indirect contravention of an edict by the
8:18
Speaker 3: United States Supreme Court. So she's trying to say, don't
8:21
Speaker 3: dare do this. But in the end, there was no
8:24
Speaker 3: time frame given about what is adequate notice and a
8:27
Speaker 3: meaningful opportunity here, and so this is why she used
8:31
Speaker 3: such scathing language. And then finally she was saying, why
8:35
Speaker 3: have we decided in a matter of hours that you
8:40
Speaker 3: don't have administrative PROCEDURECT relief in a case like this,
8:43
Speaker 3: and that habeas is the only thing that's necessary when
8:47
Speaker 3: this is such a complicated legal question. Normally, we would
8:51
Speaker 3: let the lower courtway in and then let other appellate
8:54
Speaker 3: courtsway in, and then we'd have the benefit of all
8:57
Speaker 3: of this analysis to make such a decision. Here we're
9:00
Speaker 3: just making this up on the fly in one of
9:03
Speaker 3: the most important constitutional contexts possible. So that was her
9:07
Speaker 3: other criticism of what the majority did there.
9:11
Speaker 2: I mean, the reason that Trump administration used the ailing
9:14
Speaker 2: enemy sector is because they wanted to deport people quickly
9:17
Speaker 2: without any process. So in that sense, if they follow
9:21
Speaker 2: what the Supreme Court says, it's a loss for them
9:24
Speaker 2: because now you have process involved.
9:28
Speaker 3: Correct, This will now make it longer. Although it's not
9:31
Speaker 3: as long as an actual immigration court proceeding where you
9:36
Speaker 3: have to go to the immigration courts and the Board
9:38
Speaker 3: of Immigration Appeals and then potentially a petition for review
9:42
Speaker 3: in the Circuit Court of Appeals. It won't be that long.
9:46
Speaker 3: It nevertheless will have some procedure involved in it. Unclear
9:52
Speaker 3: how many days a person will be given to file
9:56
Speaker 3: a habeas who's detained under this proclamation, but it is
10:00
Speaker 3: clear they have to be given some amount of time.
10:03
Speaker 3: And then the question is when they file this habeas, Well,
10:06
Speaker 3: how long is a district court going to take in
10:10
Speaker 3: order to make a decision in a particular case? Is
10:13
Speaker 3: this a trial? What actually happens here? So, how does
10:16
Speaker 3: someone prove they're in this gang or not in this gang?
10:20
Speaker 3: All of that will need to be worked out, and
10:22
Speaker 3: so depending this could still be a very short process,
10:26
Speaker 3: or this could be a process just like any other
10:28
Speaker 3: federal litigation that could take over a year or two
10:31
Speaker 3: years to resolve. And I think that all still needs
10:35
Speaker 3: to be fleshed out and work through in these various
10:38
Speaker 3: lawsuits that are now going to happen in the southern
10:41
Speaker 3: District of Texas or maybe another location.
10:44
Speaker 2: Let's look in the future. So a Venezuelan is given
10:47
Speaker 2: notice by the government we're going to deport you to
10:50
Speaker 2: l Salvador, that person has to get a lawyer right
10:53
Speaker 2: away to file a habeas corpus petition.
10:56
Speaker 1: Correct.
10:57
Speaker 3: Presumably, the way that this would work much every context
11:01
Speaker 3: is you would get this notice after you've been detained
11:04
Speaker 3: by Ice. It seems very unlikely that if you were
11:07
Speaker 3: quote unquote an alien enemy, they would just let you
11:10
Speaker 3: walk around in public. So what would happen is Ice
11:13
Speaker 3: would come get you, pick you up somewhere, put you
11:16
Speaker 3: in detention, give you this notice, and then once you
11:19
Speaker 3: got this notice, you'd have whatever amount of days that's
11:23
Speaker 3: in that notice to find yourself an attorney and file
11:26
Speaker 3: a haviast because if you don't then you could theoretically
11:29
Speaker 3: be deported to El Salvador under this proclamation. Now, perhaps
11:35
Speaker 3: one day there will be a writ large injunction that
11:39
Speaker 3: prevents the use of the Alien Enemies Act in this context,
11:43
Speaker 3: but until that kind of injunction is imposed yes on
11:47
Speaker 3: an individual by individual basis, people will have to file
11:50
Speaker 3: these habeas lawsuits in federal court, either by themselves or
11:55
Speaker 3: with an attorney before the removal can be accomplished. And
11:58
Speaker 3: then the question is, well, okay, what does filing that
12:03
Speaker 3: claim mean. Does that mean there's an automatic stay or
12:06
Speaker 3: do you actually have to get a say of removal
12:09
Speaker 3: issued by the court as part of this abeas. And
12:12
Speaker 3: if you actually have to get a say, that's a
12:15
Speaker 3: much more difficult burden because there you have to show
12:17
Speaker 3: you have a likelihood of success than just filing the
12:20
Speaker 3: complaint and that that becomes an automatic stay. And so
12:24
Speaker 3: all of these things are going to have to be
12:25
Speaker 3: worked out, and so it can easily be foreseen that
12:29
Speaker 3: the government might take the position, well, if a court
12:31
Speaker 3: hasn't stayed your removal, it doesn't matter that you filed it.
12:36
Speaker 3: You actually have to get a say in order to
12:38
Speaker 3: get it removed. And so the question is going to be.
12:41
Speaker 3: How aggressive is the government going to be and trying
12:44
Speaker 3: to find ambiguities and loopholes in order to keep supporting
12:48
Speaker 3: people into Osalvador, or are they going to play this
12:51
Speaker 3: more conservatively and just wait until they actually have an
12:55
Speaker 3: order that permits a removal under the alien enemy side.
12:59
Speaker 2: And this also means that the government can basically choose
13:04
Speaker 2: the jurisdiction that the habeas corpus proceedings want to be
13:09
Speaker 2: heard in because they decide where to hold the detainees.
13:13
Speaker 2: And for example, the courts in Texas are not usually
13:16
Speaker 2: as friendly to these kind of immigration claims then the
13:21
Speaker 2: courts perhaps in DC or Manhattan.
13:25
Speaker 3: Two points there. One. This is theoretically true unless basically
13:31
Speaker 3: every Venezuelan decides to have a pre written habeas petition
13:36
Speaker 3: ready to go that could be filed within seconds of
13:39
Speaker 3: their apprehension in the jurisdiction they live in. Then theoretically
13:43
Speaker 3: that would have that place would have jurisdiction over the
13:48
Speaker 3: over the havieas petition because they would have been apprehended
13:51
Speaker 3: in that location when the habeast was filed. So if
13:54
Speaker 3: you theoretically did that so sort of in the same way,
13:57
Speaker 3: one would have a will that was ready, God forbid
14:00
Speaker 3: if they died, if a Venezuelan decided. Look, I'm a Venezuelan,
14:05
Speaker 3: so I am theoretically subject, no matter how nice of
14:08
Speaker 3: a person I am, to being apprehended as a gang
14:11
Speaker 3: member and being deported to El Salvador. I'm going to
14:15
Speaker 3: prehmptively have this complaint ready and have a lawyer on
14:19
Speaker 3: call so that my family can file this right now
14:22
Speaker 3: in New York or Maryland or California or wherever. Then
14:27
Speaker 3: theoretically that court would have jurisdiction. But if you don't
14:30
Speaker 3: file the avieas until you get to your location, which
14:34
Speaker 3: is the location the government wants you to file your
14:37
Speaker 3: habeas in, then that's where you're going to be stuck
14:40
Speaker 3: filing your habeas. So that's one aspect in terms of
14:43
Speaker 3: who has jurisdiction. The jurisdiction is the place you're at
14:47
Speaker 3: at the time the case is filed. That's where the
14:50
Speaker 3: jurisdiction lies. So that's the first part of this. The
14:55
Speaker 3: second part of this is that just as sort of
14:58
Speaker 3: mayor actually say something which I don't recall any other
15:02
Speaker 3: Supreme Court justice saying, but they may have, But I
15:05
Speaker 3: just noticed that in her this sense talking about forum
15:09
Speaker 3: shopping by the government and that some judges were more
15:13
Speaker 3: disposed to these claims than others. And that's usually something
15:17
Speaker 3: very taboo that the courts don't want to admit actutely exists.
15:22
Speaker 3: But here she sort of blatantly says that there's this
15:25
Speaker 3: forum shopping and these judges that are more favorable than others,
15:29
Speaker 3: which is sort of a thing court shouldn't want to
15:31
Speaker 3: do because it sort of delegitimizes the court writ large.
15:36
Speaker 3: But she goes ahead and says it, which I also
15:38
Speaker 3: found interesting in her descent.
15:41
Speaker 2: Coming up next, what about the Venezuelans already imprisoned in
15:44
Speaker 2: El Salvador. This is Bloomberg. I've been talking to immigration
15:49
Speaker 2: law expert Leon Fresco of Holliday Knight about a sharply
15:54
Speaker 2: divided Supreme Court allowing President Trump to resume deporting alleged
15:59
Speaker 2: Venezuelan gang members under an eighteenth century wartime law. It
16:05
Speaker 2: seems like the Chief Justice and Justice Barrett are sort
16:08
Speaker 2: of switching sides in some of these emergency Trump applications.
16:14
Speaker 2: Barrett sided with the liberals. In this case, the Chief
16:18
Speaker 2: sided with the liberals over notwithholding money for teacher training programs.
16:23
Speaker 2: With the liberals always being in dissent, do you see
16:26
Speaker 2: any reason why the sort of middle of the court
16:29
Speaker 2: justices ended up where they did in these cases.
16:32
Speaker 3: I think it's not a line in that case. There's
16:36
Speaker 3: a line in a different case, which is the Fourth
16:40
Speaker 3: Circuit Review Judge Wilkinson. It's a really powerful line where
16:45
Speaker 3: he talks about there's two different concerns here and he
16:49
Speaker 3: calls them both legitimate. Which is one, people are very concerned.
16:54
Speaker 3: They now believe that this government is inclined to detain
16:59
Speaker 3: and the poor individuals without any opportunity for error correction
17:03
Speaker 3: of any kind, and that that is a very scary proposition,
17:07
Speaker 3: no matter who is involved. And then the second is
17:11
Speaker 3: that the courts themselves, because of this fear, may be
17:16
Speaker 3: forced to take such extraordinary actions that the courts are
17:20
Speaker 3: also overstepping very long held norms of constitutional law. And
17:26
Speaker 3: so the question is who's right and who's wrong in
17:29
Speaker 3: these situations. And that's why you have these middle of
17:31
Speaker 3: the road justices caught betwixt them between because they are
17:36
Speaker 3: rightfully concerned about what president are we setting if we
17:40
Speaker 3: say there's no role for courts in a world where
17:43
Speaker 3: the government chooses to literally detain any individuals and say
17:48
Speaker 3: there's no due process if we make a mistake here. So, Okay,
17:52
Speaker 3: this person was a US citizen, but now they're in Nolsalvador,
17:55
Speaker 3: there's nothing we can do about it. Is that really
17:58
Speaker 3: something that the court wants to to and trine as
18:02
Speaker 3: a decision. But at the same token, it becomes very
18:05
Speaker 3: complicated if the courts are then forced the issue injunction
18:10
Speaker 3: saying you have to force El Salvador to bring back
18:13
Speaker 3: even this US citizen, Because the point is courts don't
18:17
Speaker 3: do that. Courts don't force foreign countries to have these
18:21
Speaker 3: injunctions that they have to listen to. And so this
18:24
Speaker 3: is quite the very difficult conundrum of constitutional laws, and
18:30
Speaker 3: I get why the middle of the road justice is
18:33
Speaker 3: start feeling that they are in a very stressful ensignus
18:36
Speaker 3: a moment.
18:37
Speaker 2: The court didn't address the fact that you have hundreds
18:42
Speaker 2: of people who have already been sent to El Salvador
18:46
Speaker 2: without notice, without a hearing what happens to them That
18:50
Speaker 2: is going to.
18:51
Speaker 3: Be part of this other case that's working its way
18:54
Speaker 3: up through the Supreme Court. There was one individual within
18:58
Speaker 3: this cohort of people that was deported into El Savador
19:03
Speaker 3: who was actually not a Venezuelan under the Alien Enemies Act,
19:06
Speaker 3: but was from El Salvador itself. UH and this individual
19:11
Speaker 3: was detained despite an order saying they couldn't be deported
19:14
Speaker 3: specifically to El Salvador. And in that case it was
19:19
Speaker 3: a district court judge in Maryland who held that the
19:23
Speaker 3: United States government has to try to bring this individual
19:26
Speaker 3: back to the United States. Then the Fourth Circuit, in
19:30
Speaker 3: a two to one decision or three to zero but
19:34
Speaker 3: two to one with a concurrence, said that they agreed
19:38
Speaker 3: that the United States government has to bring this person
19:40
Speaker 3: back from El Salvador, although the one concurrent judge said
19:45
Speaker 3: they can't require Al Savador to do it. They basically
19:48
Speaker 3: have to use their best efforts if they can do it.
19:51
Speaker 3: And that case is now up in the Supreme Court,
19:53
Speaker 3: where that decision has been administratively stayed until later this week,
19:59
Speaker 3: where there is going to be a decision that's going
20:02
Speaker 3: to be made as to whether that decision will be
20:04
Speaker 3: allowed to go into effect and the United States Government
20:07
Speaker 3: will have to use its best efforts to bring this
20:10
Speaker 3: individual back from El Savador or whether it is true
20:14
Speaker 3: that once a mistake gets made like this, the United
20:18
Speaker 3: States has no jurisdiction and no ability to do anything
20:21
Speaker 3: about it. And so that's going to be a very
20:24
Speaker 3: interesting decision that will then come back to this other
20:28
Speaker 3: case that we've been discussing about the Venezuelans who have
20:32
Speaker 3: already been said to Elsavador as well, because that's going
20:36
Speaker 3: to be the question. Can a court actually order the
20:38
Speaker 3: United States to quote unquote, either order El Savador to
20:43
Speaker 3: give them the people back or maybe this arrangement already
20:47
Speaker 3: contemplated that meaning they don't have to order El Savador
20:50
Speaker 3: to do anything. Whatever the case may be, that's going
20:54
Speaker 3: to be decided as part of this other case.
20:57
Speaker 2: You worked in immigration litigation in the government. It seems
21:02
Speaker 2: to me inconceivable that the Trump administration can't ask the
21:06
Speaker 2: president of l Salvador to send the man who was
21:10
Speaker 2: incorrectly sent there back to the United States. I mean,
21:14
Speaker 2: the President of l Salvador is coming to the White
21:16
Speaker 2: House for a visit next week.
21:18
Speaker 3: Let's talk about this in multiple contexts. So first of all,
21:23
Speaker 3: in terms of just other cases forgetting about this context.
21:26
Speaker 3: In a second, in a case where someone is deported
21:30
Speaker 3: to another country and that person is just walking around
21:35
Speaker 3: that other countries. So let's say it's Mexico or Chile
21:39
Speaker 3: or South Korea or wherever. The Supreme Court has already
21:42
Speaker 3: said in a case called the ten Nken that if
21:46
Speaker 3: the government is wrong, it can actually and must do
21:51
Speaker 3: what it takes to bring that person back. Give them,
21:54
Speaker 3: let's say, a parole, pay perwork, apply whatever is needed
21:58
Speaker 3: to bring this person back into the United States than
22:01
Speaker 3: to bring this person back to whatever status was the
22:05
Speaker 3: status that they had when the case was moving forward.
22:09
Speaker 3: So that was that situation. Now this context in al
22:15
Speaker 3: Savador is a little bit more complicated because here the
22:19
Speaker 3: person is in detention in a Salvador in prison. And
22:23
Speaker 3: so now the question that the courts are trying to
22:25
Speaker 3: grapple with is whose custody are these people under. And
22:30
Speaker 3: so the Trump administration is saying they are in the
22:34
Speaker 3: custody of al Savador. They're in the Nolsalvador in prison.
22:37
Speaker 3: End of story. We can no longer order al Salvador
22:40
Speaker 3: to do this. But the real question then becomes is
22:43
Speaker 3: that true or not? Because why would al Savador want
22:46
Speaker 3: to hold anybody in these prisons. They're doing it at
22:50
Speaker 3: the request of the United States government, and the United
22:53
Speaker 3: States Government is paying them to do this, So does
22:56
Speaker 3: this not confer the power to bring this person back
23:01
Speaker 3: still back to the US government in this situation? And
23:06
Speaker 3: that's really the issue that the Supreme Court is going
23:09
Speaker 3: to have to grapple with once the administrative stay is lifted,
23:12
Speaker 3: is really whose custody are these people in? And what
23:17
Speaker 3: makes it super complicated in the case of the Salvadoran
23:20
Speaker 3: person as opposed to the Venezuelan person is that this
23:24
Speaker 3: is an actual Salvadoran person in a Salvadoran prison as
23:28
Speaker 3: opposed to a Venezuelan person. Because at least with the
23:31
Speaker 3: Venezuelan people, it's a little bit more clear cut that
23:35
Speaker 3: why in the world would El Salvador want to hold
23:38
Speaker 3: Venezuelan is at El Salvador prison. That belies any sort
23:42
Speaker 3: of explanation. It would have to be because they're being
23:45
Speaker 3: asked to do so by the United States government. But
23:48
Speaker 3: is this El Salvador case, it becomes more complicated. You know,
23:53
Speaker 3: maybe El Salvador has some interest in having this person
23:56
Speaker 3: in their detention facility, and so what can the court
23:59
Speaker 3: act the ordered there?
24:01
Speaker 2: In that situation, It just seems to me, if you
24:03
Speaker 2: strip away all the legalities, some of which seem concocted
24:07
Speaker 2: to me, and look at it practically, does anyone doubt
24:12
Speaker 2: that El Salvador's president would comply with a request by
24:16
Speaker 2: Trump to send the man back tells the what's his name?
24:20
Speaker 2: The president.
24:21
Speaker 3: Seems to me that if this entire framework was implemented
24:26
Speaker 3: at the request of the United States, that a release
24:29
Speaker 3: could occur at the request of the United States. That
24:31
Speaker 3: seems to me to be a logical proposition. But the
24:34
Speaker 3: question is what does the law do visa the suspension
24:38
Speaker 3: of disbelief? Does the law say, no, we're going to
24:42
Speaker 3: look at the actual foughts here and say that that
24:46
Speaker 3: really at the end, the only reason any of this
24:48
Speaker 3: is happening is because the US is asking Al Salvador
24:51
Speaker 3: to do it, and so yes, they continue to maintain jurisdiction.
24:55
Speaker 3: Or does the law create the suspension of this belief
24:58
Speaker 3: where it says, look, we can't get into all of that.
25:01
Speaker 3: In the end, this person is now in Salvador in custody,
25:04
Speaker 3: end of story. What can we do? And so I
25:07
Speaker 3: don't know where they're going to go with this, but
25:10
Speaker 3: practically it seems to me I don't know what the
25:14
Speaker 3: reason would be pornl Salvador to say no to the
25:17
Speaker 3: United States in a particular case, I don't know. We
25:20
Speaker 3: would have to wave the sea a lot to wait.
25:22
Speaker 2: And see about. Thanks so much, Leon. That's Leon Fresco,
25:25
Speaker 2: a partner at Honda Night. Coming up next on the
25:28
Speaker 2: Bloomberg Law Show, Trump's War on Big Law exposes the
25:33
Speaker 2: vulnerabilities of Wall Street law firms. I'm June Gross. When
25:37
Speaker 2: you're listening to Bloomberg, President Trump's war on big law
25:42
Speaker 2: sees firms caving in, sometimes before the executive order against
25:47
Speaker 2: them is even issued. Millbank tweet is the latest firm
25:51
Speaker 2: to settle in exchange for one hundred million dollars in
25:54
Speaker 2: pro bono work. So what kind of firms have the
25:57
Speaker 2: incentive to settle and avoid illegal battle with the president
26:01
Speaker 2: and what firms would rather fight it out? Joining me?
26:05
Speaker 2: Is Bloomberg Law reporter Justin Henry Justin? How would you
26:10
Speaker 2: describe the firms that are settling?
26:12
Speaker 1: So the firms that we're seeing settle are primarily concentrated
26:16
Speaker 1: in New York. I think all of them are headquartered
26:19
Speaker 1: or at least originating from New York and have real
26:22
Speaker 1: Wall Street pedigree. They're also much more wealthy, and a
26:27
Speaker 1: lot of that wealth has come from their rainmaker transactional practices,
26:32
Speaker 1: so corporate deals involving mergers and acquisitions and private equity.
26:37
Speaker 2: So what would be the reason why those firms would
26:41
Speaker 2: want to settle more the ones that do transactional work.
26:45
Speaker 1: So my understanding is that they have really sensitive client relationships,
26:50
Speaker 1: clients who are very averse being in kind of the
26:53
Speaker 1: political limelight. Some of those firms have client relationships that
26:58
Speaker 1: are worth one hundred million dollars a year in revenue
27:01
Speaker 1: or more, and those are client relationships that could vanish
27:06
Speaker 1: literally overnight if their lawyers can't represent them in front
27:10
Speaker 1: of government agencies or get the same kind of attention
27:12
Speaker 1: from regulatory agencies to put the deals through. And then
27:17
Speaker 1: that literally within a matter of days, could decrease the
27:21
Speaker 1: overall profitability of the firm, which would have a cascading
27:25
Speaker 1: effect on other partners at the firm making lesson profits
27:28
Speaker 1: and then also being vulnerable approaching by other firms. So
27:32
Speaker 1: you could have a phenomenon that resembles the kind of
27:35
Speaker 1: run on the bank.
27:36
Speaker 2: So they're even afraid that their partners will abandon them exactly.
27:41
Speaker 1: Yeah, and not for any individual lawyers sort of decision
27:46
Speaker 1: making on the process. It's really a coordination issue where
27:52
Speaker 1: you know, they might want to stay with the firm,
27:53
Speaker 1: the clients might want to stay with the firm, but
27:57
Speaker 1: just because of business reasons, not because of reasons. There's
28:01
Speaker 1: no shortage of other firms looking to scoop up that business,
28:04
Speaker 1: and they can come to them and say, hey, listen,
28:05
Speaker 1: we're not in the negative limelight of the president. Come
28:08
Speaker 1: to us, or we still have a good relationship with
28:11
Speaker 1: the administration, or at least we're not in the crosshairs
28:14
Speaker 1: of the Trump administration.
28:15
Speaker 2: Right And with these transactional firms that have to deal
28:19
Speaker 2: with the regulatory agencies, it could be a problem if
28:23
Speaker 2: they're in the bad graces of the Trump administration.
28:27
Speaker 1: Yeah, exactly. I mean a protracted dispute with the Trump administration,
28:30
Speaker 1: which three of the firms that have been targeted are
28:33
Speaker 1: currently in can make them seem like kind of a
28:36
Speaker 1: para politically speaking. That makes clients look at them and say, well,
28:40
Speaker 1: we're worried about not getting good treatment from the regulatory
28:44
Speaker 1: agencies that have to approve are massive that the company
28:48
Speaker 1: deals those very expensive, very lucrative deals require the good
28:53
Speaker 1: will of the executive branch agencies, and that is something
28:56
Speaker 1: that is at risk when you're in a protracted dispute
28:59
Speaker 1: with the Trump administry.
29:00
Speaker 2: I thought it was interesting you spoke to Bruce McEwan,
29:03
Speaker 2: who was a former in house lawyer at Morgan Stanley,
29:06
Speaker 2: and he said, law firms, for all their seeming solidity,
29:09
Speaker 2: are very fragile economically.
29:12
Speaker 1: So law firms really aren't organized like any other type
29:16
Speaker 1: of business except for other professional services businesses like accounting.
29:20
Speaker 1: What makes law firms different is that their shareholders are
29:24
Speaker 1: internal to the company, and those shareholders who are the partners,
29:28
Speaker 1: have the ability to go to any firm they want
29:32
Speaker 1: at the drop of a hat. There are no non
29:35
Speaker 1: compete agreements in the legal field like there are an
29:38
Speaker 1: other professions, so the law firm can't impose any restrictions
29:42
Speaker 1: on one of their lawyers moving to another firm, a
29:46
Speaker 1: competitor firm that's willing to pay them more. And so
29:50
Speaker 1: that's a huge reason why law firms are much more
29:54
Speaker 1: a precarious type of business than other types of businesses.
29:58
Speaker 2: The three firms that sued Trump, what are they best
30:01
Speaker 2: known for? The obviously they're not transactional.
30:04
Speaker 1: Yeah, so these are firms that are very famous for
30:09
Speaker 1: their work in the areas of litigation, and litigation is
30:13
Speaker 1: just a practice area that, you know, it's still very
30:17
Speaker 1: sensitive to politics, but already kind of has an adversarial
30:21
Speaker 1: stance by definition, just a breed of lawyers who are
30:24
Speaker 1: much more willing to take an adversarial stance, whether it's
30:27
Speaker 1: with the government or whether it's with another private sector party.
30:31
Speaker 1: And according to the lawyers I've talked to you, that
30:34
Speaker 1: kind of has bread a willingness in these firms too,
30:37
Speaker 1: in their case take an adversarial stance against the Trump administration. Now,
30:41
Speaker 1: that doesn't mean it doesn't come with any risk. There
30:44
Speaker 1: are risks involved. However, when you're litigating in a courthouse
30:48
Speaker 1: as opposed to seeking merger clearance in an executive branch agency.
30:53
Speaker 1: The courthouses are not subject to the Trump administration's executive
30:57
Speaker 1: order like the executive branch agencies are.
31:00
Speaker 2: I didn't realize is the litigation firms have less revenue
31:04
Speaker 2: than the transactional firms.
31:06
Speaker 1: Yes, they're on average about half as much in revenue
31:11
Speaker 1: every year on average than the more transactional focused firms.
31:15
Speaker 1: And that really just goes to show you how much
31:17
Speaker 1: private equity in m and A has turbocharged the profits
31:21
Speaker 1: of the wealthiest firms right now. But I think what
31:23
Speaker 1: we're seeing right now is that it also shows you
31:24
Speaker 1: how precarious that wealth is.
31:27
Speaker 2: You say that the same pattern applies to firms that
31:32
Speaker 2: have been publicly speaking out against the Trump administration, how
31:35
Speaker 2: many firms have been publicly speaking out?
31:38
Speaker 1: So the number of firms that have been speaking out
31:40
Speaker 1: against the Trump administration recently skyrocketed, actually because of an
31:45
Speaker 1: amicus brief in the lawsuit that Perkins Cooey filed against
31:50
Speaker 1: the Trump administration. However, only eight of the firms that
31:54
Speaker 1: sign on to that brief are in the am law
31:57
Speaker 1: one hundred. So when I say that the firms that
32:00
Speaker 1: are speaking out against the Trump administration are litigation firms,
32:04
Speaker 1: I mean the other big law firms. So that would
32:07
Speaker 1: be Williams and Connolly, which is representing Perkins Koohey and
32:11
Speaker 1: its lawsuits against the Trump administration, and the munger Tolden
32:14
Speaker 1: Olsen is primarily a litigation firm that organize the brief
32:19
Speaker 1: in the Perkins Cooohy lawsuits. And so those are kind
32:23
Speaker 1: of the high profile examples of firms that are willing
32:25
Speaker 1: to oppose the Trump administration, and how they are pretty
32:28
Speaker 1: hard nosed, litigation focused firms.
32:31
Speaker 2: Trump has only targeted the big firm so.
32:35
Speaker 1: Far, Yes, because it seems what he's looking for, at
32:39
Speaker 1: least in part, is hundreds of millions of dollars in
32:43
Speaker 1: pro bono legal services. Now, the bigger firms, the wealthier firms,
32:47
Speaker 1: have more resources to devote to pro bono legal services,
32:52
Speaker 1: and so that's why I think it makes sense that
32:54
Speaker 1: Trump is going after those larger firms, who I believe
32:58
Speaker 1: at this point has committed more than three hundred million
33:01
Speaker 1: in pro bona legal services to causes that Trump is
33:04
Speaker 1: advocating for.
33:06
Speaker 2: Do we know what kind of things he's going to
33:08
Speaker 2: ask them to do?
33:10
Speaker 1: So, just to make it totally clear, what the firms
33:13
Speaker 1: have said that have pledged pro bono legal services is
33:16
Speaker 1: that they aren't letting the Trump administration call the shots
33:21
Speaker 1: down to the individual client relationships. They've just set out
33:24
Speaker 1: categories that they need to provide pro bono legal services
33:28
Speaker 1: in order to comply with the agreement. And those categories
33:33
Speaker 1: include advocating on behalf of veterans' rights. You know, that's
33:38
Speaker 1: a very established conservative legal cause, there's combating anti semitism,
33:44
Speaker 1: and then there's quote unquote fairness in the justice system.
33:48
Speaker 1: There's still a lot of unanswered questions about how they
33:50
Speaker 1: will comply with that. You know, I struggle to imagine
33:55
Speaker 1: that the law firms and the Trump administration have the
33:58
Speaker 1: same definition of those, especially with something as broad as
34:01
Speaker 1: fairness in the justice system. But these are clearly areas
34:05
Speaker 1: that you know, Trump for a while now has felt
34:08
Speaker 1: like big law isn't as fair a conservatives as it
34:11
Speaker 1: is to liberal causes, and so this is his way of,
34:14
Speaker 1: in his mind, evening the playing field.
34:16
Speaker 2: Are these executive orders against law firms going to continue?
34:21
Speaker 1: So I think at this point what I've heard is
34:24
Speaker 1: that there are several law firms that have come to
34:26
Speaker 1: the table with the Trump administration in order to negotiate
34:30
Speaker 1: their way out of an executive order. When you just
34:33
Speaker 1: look at the rationale, the pretext backing these executive orders,
34:38
Speaker 1: it's hard to imagine a law firm, a high profile
34:42
Speaker 1: law firm that Trump might not have a beef with.
34:46
Speaker 1: You know, everybody has some connection to a potential enemy
34:50
Speaker 1: of the president, and so that makes the potential targets
34:55
Speaker 1: of these executive orders pretty far and wide, and that
34:57
Speaker 1: I think is making a lot of law firms to
35:00
Speaker 1: the table and try to negotiate preemptively their way out
35:03
Speaker 1: of an executive order.
35:05
Speaker 2: I think Scadden did that right before they had an
35:07
Speaker 2: executive order against them. They settled.
35:10
Speaker 1: So far, we've seen Scadden do that, Wilkie and Millbank,
35:15
Speaker 1: and it's been reported, including by Bloomberg Law, that Kirkland
35:19
Speaker 1: Analys is in preemptive negotiations, and as late as this
35:23
Speaker 1: morning there's been reporting by The New York Times that
35:26
Speaker 1: suggest that Catwald is in a similar position. And Cadwalder
35:30
Speaker 1: is notable because they are the former firm of Todd
35:33
Speaker 1: Blanche who's in the Justice Department obviously, and who had
35:38
Speaker 1: to leave the firm in order to represent Trump in
35:40
Speaker 1: the Stormy Daniel's case.
35:42
Speaker 2: Has anyone in the Trump administration expressed what the legal
35:45
Speaker 2: basis for these executive orders are? I mean, it seems
35:49
Speaker 2: so clearly retribution.
35:52
Speaker 1: It does, but that what people are calling retribution has
35:56
Speaker 1: been touched by the Trump administration in the language of
36:00
Speaker 1: protecting national security interests, the language that was used in
36:04
Speaker 1: the Perkins Cooey executive order. The other legal pretext that's
36:09
Speaker 1: being cited is anti discrimination laws. Those are being in
36:14
Speaker 1: going after firms for alleged dei quote unquote discrimination.
36:20
Speaker 2: That is a big theme of the Trump administration so far.
36:23
Speaker 2: Thanks so much, Justin. That's Bloomberg Law reporter Justin Henry
36:28
Speaker 2: and that's it for this edition of The Bloomberg Law Show.
36:31
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36:33
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36:38
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36:46
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36:50
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