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SCOTUS Gives Trump Another Win & Hasan Piker Sues Scott Jennings for Defamation · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.
0:08
Speaker 2: The Trump administration has a nearly perfect record at the
0:12
Speaker 2: Supreme Court in immigration cases. And this week, the court
0:16
Speaker 2: handed the administration yet another win. The justices left in
0:21
Speaker 2: force what opponents call a collusive settlement struck between the
0:25
Speaker 2: administration and Texas. to cut off an avenue that allowed
0:29
Speaker 2: judges to pause some deportations. On Tuesday, the justices turned
0:35
Speaker 2: away an emergency request from three cities and a legal
0:39
Speaker 2: services provider that argued the settlement was a ploy to
0:43
Speaker 2: eliminate a federal regulation without going through the proper procedures.
0:48
Speaker 2: Joining me is immigration law expert Leon Fresco, a partner
0:51
Speaker 2: at Holland & Knight. Leon, start by telling us about
0:54
Speaker 2: this agreement between the administration and Texas.
0:58
Speaker 1: So here's basically what happened just generally. There was a
1:02
Speaker 1: memo or a regulation, actually. There used to be a memo,
1:05
Speaker 1: and then the Biden administration codified it more concretely in
1:09
Speaker 1: a regulation that said that something called administrative closure is
1:15
Speaker 1: a part of immigration proceedings. And what administrative closure is,
1:20
Speaker 1: is essentially that if the government's trying to deport someone...
1:24
Speaker 1: The government doesn't cancel their deportation case. It just basically
1:29
Speaker 1: puts it to the side into a separate drawer where
1:33
Speaker 1: nothing happens in that drawer. But if the person, let's say,
1:36
Speaker 1: gets arrested doing something or does something that they shouldn't
1:39
Speaker 1: be doing, then you would take it out of the
1:41
Speaker 1: drawer rather than having to restart the whole thing so
1:44
Speaker 1: that you have that efficiency available. that you could just
1:47
Speaker 1: take it out of the drawer and continue with the
1:49
Speaker 1: case and finish the deportation. So basically, you'd have to
1:52
Speaker 1: be asking for your own deportation by doing something contrary
1:57
Speaker 1: to the law, you know, stealing something, beating somebody up,
2:01
Speaker 1: whatever it may be. And so the state of Texas
2:04
Speaker 1: sued in Texas and said, this is not legal, this
2:09
Speaker 1: regulation about administrative closure. There should be no such thing
2:13
Speaker 1: in immigration court. You should either finish a case or
2:16
Speaker 1: dismiss a case if a case doesn't meet the standard
2:19
Speaker 1: for deportation. But there should be no such thing called
2:22
Speaker 1: administrative closure. And they filed the lawsuit in a court
2:27
Speaker 1: in Texas where usually the state of Texas wins because
2:32
Speaker 1: there's only one judge there and the state of Texas says,
2:35
Speaker 1: that they think that this is their best chance, so
2:38
Speaker 1: they file it in that specific district that's called the
2:40
Speaker 1: Wichita Falls Division. of the Northern District of Texas.
2:44
Speaker 2: Judge Rita Conner.
2:46
Speaker 1: So they filed the lawsuit there, and they actually enter
2:50
Speaker 1: into a settlement with the Department of Justice where both
2:53
Speaker 1: sides agree, because now it's the Trump Department of Justice.
2:57
Speaker 1: Both sides agree, yes, this rule is illegal. So as
3:01
Speaker 1: a part of the settlement, not only are we not
3:03
Speaker 1: going to follow this rule, we agree as the federal
3:06
Speaker 1: government to permanently never have a rule like this. And so...
3:11
Speaker 1: What happens is there's a bunch of cities who then say, well,
3:15
Speaker 1: I understand that the state of Texas sued, but we
3:18
Speaker 1: should have a right to intervene in this lawsuit and say,
3:21
Speaker 1: nobody asked for this. This is just one state. Since
3:24
Speaker 1: there isn't an opposing view in this case, we should
3:27
Speaker 1: be allowed to intervene. So cities like Baltimore, Columbus, New Haven,
3:32
Speaker 1: Connecticut with the Yale Law School, Clinic, Centro Legal de
3:36
Speaker 1: la Raza, and others, they say, we want to join
3:39
Speaker 1: in as interveners. And actually, the Fifth Circuit and the
3:41
Speaker 1: districts within the Fifth Circuit usually have very expansive intervener law.
3:45
Speaker 1: They usually let pretty much anybody intervene, as we've seen
3:49
Speaker 1: over the last 10 years in immigration cases. But here
3:52
Speaker 1: they said that the cities had no standing because they
3:56
Speaker 1: couldn't show any concrete injuries from this rule being taken away,
4:02
Speaker 1: that they can show how a specific city suffered from
4:05
Speaker 1: this rule being taken away. And so that was the
4:09
Speaker 1: end of it. The settlement stood in place. These cities
4:12
Speaker 1: then tried to appeal. And the Fifth Circuit said, go away.
4:16
Speaker 1: We are not interested in any argument you're making. And
4:19
Speaker 1: the Supreme Court now declined to move forward and similarly
4:22
Speaker 1: agreed that these cities have no standing.
4:26
Speaker 2: Beyond this case and immigration issues... There's a broader issue here,
4:30
Speaker 2: isn't there?
4:31
Speaker 1: The sort of larger term question, is this going to
4:35
Speaker 1: be a new thing where rather than going through the
4:37
Speaker 1: whole administrative law process, you just take a state that
4:43
Speaker 1: is partial to the view of whatever new administration is
4:46
Speaker 1: there and just sue about any regulation that the new
4:50
Speaker 1: administration didn't want and just enter into settlement and basically
4:54
Speaker 1: circumvent the entire meaning of the Administrative Procedure Act. Now,
4:58
Speaker 1: I will say this, sort of as conspiratorially and dastardly
5:04
Speaker 1: as a lot of people on, you know, not on
5:06
Speaker 1: the side of the Trump administration have said this is.
5:10
Speaker 1: I will note that during the Biden administration, this exact
5:13
Speaker 1: same thing happened where the state of Illinois and the
5:16
Speaker 1: Biden administration entered into some sort of similar collusive arrangement
5:21
Speaker 1: to get rid of the public charge regulation that the
5:24
Speaker 1: Trump administration had put in. And at that time, the
5:27
Speaker 1: Supreme Court was very wary, but just said, we're not
5:30
Speaker 1: going to get into this right now, but we don't
5:32
Speaker 1: like this. We may have to get into this some
5:34
Speaker 1: other day. And so... At some point, they're going to
5:38
Speaker 1: have to get into this question. There's no doubt about it.
5:41
Speaker 1: And what's going to basically have to happen is somebody's
5:44
Speaker 1: going to have to sue who's an actual foreign national
5:48
Speaker 1: in deportation proceedings, who, for instance, I'll give you an example.
5:52
Speaker 1: There's something called the U visa, which is a visa
5:55
Speaker 1: for victims of violent crime that says if you're a
5:58
Speaker 1: victim of violent crime. then you shouldn't be placed in
6:02
Speaker 1: the untenable position of either having to go to the
6:04
Speaker 1: police and report the violent crime or being worried about
6:08
Speaker 1: your immigration status. So we will shield you from deportation
6:14
Speaker 1: if you actually were a victim of violent crime and
6:16
Speaker 1: you reported it to the police and the police thought
6:19
Speaker 1: this was helpful and, you know, it helped them in
6:21
Speaker 1: the investigation, etc. And so from that standpoint, what usually
6:26
Speaker 1: happens in immigration court is they say, we will pause
6:29
Speaker 1: your deportation and put it in administrative closure while you're
6:32
Speaker 1: figuring out this U visa situation with USCIS. So now
6:37
Speaker 1: a court would say, we can't pause it anymore. They're
6:40
Speaker 1: going to have to deport you, even though you have
6:42
Speaker 1: this U visa eligibility. And that person's going to have
6:46
Speaker 1: to sue and work their way up. And this collusive
6:49
Speaker 1: settlement argument will have to be decided in the context
6:52
Speaker 1: of a person like that's case.
6:55
Speaker 2: I mean, what was surprising to me is that there
6:57
Speaker 2: were no dissents.
6:59
Speaker 1: I think the problem is that the standing issue wasn't
7:01
Speaker 1: the cleanest way of going after it. And so I
7:04
Speaker 1: think both sides understand the stakes and they understand that
7:08
Speaker 1: each side has done this now. So sort of Everybody
7:12
Speaker 1: knows that they can be harmed by this. We have
7:14
Speaker 1: nuclear deterrents on each side. And so I just think
7:18
Speaker 1: they want to do this cleanly without the standing issue
7:21
Speaker 1: involved and take this case not in the emergency shadow docket,
7:27
Speaker 1: but in a real docket in a situation like someone
7:30
Speaker 1: who has a U visa. I think this was strategic.
7:34
Speaker 1: And I think everybody knows that it may take a
7:36
Speaker 1: year or two, but it's definitely coming.
7:39
Speaker 2: I mean, for one administration to agree that for the
7:42
Speaker 2: rest of time the next administration can't change what they've done,
7:46
Speaker 2: that doesn't seem right.
7:48
Speaker 1: It certainly is unconventional. It's certainly an end run around
7:52
Speaker 1: the Administrative Procedure Act and how the regulatory process is
7:55
Speaker 1: supposed to go. I don't think anyone thought that collusive settlements...
8:00
Speaker 1: with states that agree with you is the new legislation
8:03
Speaker 1: in America. I don't think anyone thought that or the
8:06
Speaker 1: new regulatory thing in America, but this is what happens
8:10
Speaker 1: when you don't have a Congress that passes laws. And
8:13
Speaker 1: when you have courts that block regulatory actions, then your
8:18
Speaker 1: next move is settlements because you have to figure out
8:21
Speaker 1: some way to govern. And so the more governing tactics
8:25
Speaker 1: that used to work that no longer work, the more
8:28
Speaker 1: you get things like this, and now it's going to
8:30
Speaker 1: be up to the court to decide, are we going
8:32
Speaker 1: to have this kind of future where we just have
8:36
Speaker 1: back and forth judicial settlements that do strange things, or
8:41
Speaker 1: are we going to not allow this practice, or at
8:43
Speaker 1: least allow interveners to come in and not force settlements,
8:48
Speaker 1: because then the settlements can't happen without the interveners agreeing.
8:52
Speaker 1: So we're going to have to see how that works,
8:54
Speaker 1: but this is quite a challenging time area. We've now
8:58
Speaker 1: seen both sides use it. So now it's going to
9:01
Speaker 1: be an issue that the courts are going to have
9:02
Speaker 1: to address because it's now no longer a one-sided issue.
9:05
Speaker 1: It's a two-sided issue.
9:08
Speaker 2: So now I thought, I haven't thought about the wall
9:11
Speaker 2: or talked about the wall in so long, but the
9:15
Speaker 2: Trump administration is asking the Supreme Court to intervene to
9:19
Speaker 2: let border wall construction resume in Big Bend National Park
9:24
Speaker 2: in West Texas.
9:26
Speaker 1: Yes. So what happens is this. Normally, whenever you're trying
9:29
Speaker 1: to build anything, there's an environmental, it's called the NEPA process.
9:35
Speaker 1: It's an environmental requirement that you have to check the
9:38
Speaker 1: environmental impact on a particular project. Is it going to
9:42
Speaker 1: hurt the wildlife and the endangered species and all of this?
9:46
Speaker 1: But the immigration code, the law that specifically passed in 1996, IRA, IRA,
9:49
Speaker 1: the Illegal Immigration Responsibility Act says that in this specific
9:57
Speaker 1: situation where there is high illegal entry in a part
10:01
Speaker 1: of the border, back then it was the attorney general,
10:03
Speaker 1: but now it's the secretary of Homeland security can issue
10:07
Speaker 1: a waiver from all of this environmental and other regulatory
10:11
Speaker 1: requirements to just expedite wall construction. So here you had
10:16
Speaker 1: the secretary of Homeland security issue a waiver and for
10:19
Speaker 1: the construction of the border wall in the Big Bend
10:24
Speaker 1: area of Texas. And you have a lawsuit by an
10:27
Speaker 1: environmental group that's called the Friends of Ruidosa Church. And
10:32
Speaker 1: at that point, you actually get a very rare decision
10:34
Speaker 1: by a district court that for the first time ever
10:37
Speaker 1: says the waiver is not valid here, even though the
10:40
Speaker 1: statute is very broad about the waiver authority. Nevertheless, the
10:45
Speaker 1: court says it's not valid. And the reason is that
10:48
Speaker 1: the waiver is only permitted in areas of high illegal entry.
10:53
Speaker 1: And so what she found, the district court judge, is
10:56
Speaker 1: that the Big Bend area, whether you think it's high
10:59
Speaker 1: or not on some objective standard, that's not what high means.
11:04
Speaker 1: High means relative to other parts of the border. And
11:07
Speaker 1: so that the Big Bend area, when you look at
11:10
Speaker 1: it relative to other parts of the border, is the
11:13
Speaker 1: lowest area where people cross in the southern border. So
11:18
Speaker 1: that can't be a high illegal entry area if relative
11:22
Speaker 1: to other parts of the border, it's the lowest area.
11:25
Speaker 1: So not based on an objective criteria of if you
11:29
Speaker 1: have more than, let's say, 100 crossings a day. She
11:32
Speaker 1: didn't look at it that way. She looked at it
11:34
Speaker 1: as high in comparison to other parts of the border.
11:38
Speaker 1: And she said, because it's not high in comparison to
11:40
Speaker 1: other parts of the border, the waiver is invalid. You
11:45
Speaker 1: can't get a waiver. And so now the government is saying,
11:47
Speaker 1: come on, that's insanity. And so they have the ability
11:51
Speaker 1: to skip the Fifth Circuit and go directly to the
11:53
Speaker 1: Supreme Court with this kind of waiver case. And so
11:57
Speaker 1: now they're going to the Supreme Court and they're asking
12:00
Speaker 1: for certiorari saying, you can't block us on that basis.
12:04
Speaker 1: That's not something that a district judge gets to review
12:08
Speaker 1: as to how high the border crossings need to be
12:11
Speaker 1: in order to issue a waiver like this. And so
12:14
Speaker 1: we'll see what the Supreme Court says, if they will
12:16
Speaker 1: agree with this or not.
12:18
Speaker 2: Coming up next, I'll continue this conversation with Leon Fresco,
12:22
Speaker 2: splitting the circuits on the Trump administration's mandatory detention policy
12:27
Speaker 2: for non-citizens. This is Bloomberg. The Trump administration has asked
12:32
Speaker 2: the Supreme Court to allow border wall construction to resume
12:37
Speaker 2: over a 300-mile stretch in Big Bend National Park in
12:41
Speaker 2: West Texas. This after a judge blocked construction, saying the
12:46
Speaker 2: Department of Homeland Security was probably violating the law by
12:50
Speaker 2: trying to skirt environmental requirements. I've been talking to immigration
12:55
Speaker 2: law attorney Leon Fresco of Holland & Knight. Leon, I
12:59
Speaker 2: realize that the Trump administration goes to the Supreme Court
13:03
Speaker 2: on just about every issue they lose on in the
13:06
Speaker 2: lower courts. But these days, is border wall construction really
13:11
Speaker 2: serious enough of an issue to take it to the
13:13
Speaker 2: Supreme Court?
13:15
Speaker 1: I think the problem is it's not ordinarily serious in
13:19
Speaker 1: the sense that we've gone– 250 years we're in the
13:24
Speaker 1: 250th anniversary of the republic without a border wall in
13:27
Speaker 1: the big bend and we somehow managed to survive so
13:30
Speaker 1: if you want to look at it from that perspective
13:32
Speaker 1: it's not serious but if you want to look at
13:34
Speaker 1: it from the perspective of hey we may one day
13:38
Speaker 1: need to build border wall very quickly and we can't
13:41
Speaker 1: have district judges doing this kind of thing the Supreme
13:44
Speaker 1: Court may find it to be a serious thing that
13:47
Speaker 1: needs to be acted upon in an emergency basis. So
13:50
Speaker 1: it all depends on what perspective you want to look at.
13:52
Speaker 2: Have you kept track? Is it just one case that
13:55
Speaker 2: the Trump administration has lost at the Supreme Court on immigration?
13:59
Speaker 1: Well, yeah, the only one so far has been birthright citizenship.
14:02
Speaker 1: That's it. And that one was surprisingly close if you
14:05
Speaker 1: really look at it from the perspective of it probably
14:08
Speaker 1: should have been 9-0. So it wasn't 9-0. And so
14:12
Speaker 1: from that standpoint, they have a very friendly Supreme Court
14:16
Speaker 1: at this point. I mean, they've lost a little bit
14:18
Speaker 1: in the margins. So, for instance, in the Alien Enemies Act,
14:21
Speaker 1: they said you have to give some due process. They
14:24
Speaker 1: didn't make it clear what it was. But, you know,
14:27
Speaker 1: let's say they said, like they did in the Alien
14:29
Speaker 1: Enemies Act, any Venezuelan, Trenda, Aragua person, we don't have
14:33
Speaker 1: to give any due process to. We can just take them,
14:36
Speaker 1: immediately put them in handcuffs and send them to El
14:39
Speaker 1: Salvador immediately. no court, no stops, nothing, four minutes later.
14:43
Speaker 1: They said, no, no, no, you have to let some
14:45
Speaker 1: people say, hey, wait a second, I'm Irish. Why are
14:47
Speaker 1: you sending me to El Salvador? What is this about?
14:50
Speaker 1: So they did also stop the Trump administration there, but
14:55
Speaker 1: those are the only two areas. And even there, the
14:58
Speaker 1: Trump administration stopped using the Alien Enemies Act. So we
15:02
Speaker 1: don't actually know what due process exactly you're entitled to.
15:06
Speaker 1: We just know that they can't directly handcuff you and
15:09
Speaker 1: send you to El Salvador. You have to have some
15:12
Speaker 1: right to be able to say, wait a second, I'm
15:14
Speaker 1: a U.S. citizen and I was born in Kansas. What
15:16
Speaker 1: are you doing to me? You know, that kind of thing.
15:19
Speaker 2: I bet the wall is going up there. So speaking
15:21
Speaker 2: of due process, we had the full Fifth Circuit rule
15:26
Speaker 2: that this policy of mandatory detention for non-citizens... is okay.
15:32
Speaker 2: I mean, are they basically saying that non-citizens aren't entitled
15:36
Speaker 2: to constitutional due process?
15:38
Speaker 1: Well, so there's two parts of this case. So the
15:41
Speaker 1: issue is a specific subset of foreign nationals. Who are they?
15:45
Speaker 1: They are people who illegally crossed the border, not people
15:49
Speaker 1: who came in on a visa and overstayed, but people
15:51
Speaker 1: who illegally crossed the border. So no federal government official
15:55
Speaker 1: was ever involved with how they got to America. So
15:58
Speaker 1: the question is, once the federal government catches one of
16:01
Speaker 1: these people and puts them into deportation proceedings, are they
16:05
Speaker 1: entitled to a bond hearing or not? And what nine
16:10
Speaker 1: of the 11 appellate courts have said is, Yes, they are,
16:14
Speaker 1: so long as they're not caught immediately there at the border.
16:18
Speaker 1: If they made their way into the country and you
16:20
Speaker 1: catch them later, they're entitled to a bond hearing because
16:24
Speaker 1: they're not at the moment trying to get into the
16:27
Speaker 1: country when you catch them. There are two circuits, the
16:30
Speaker 1: Fifth Circuit is one of them, who said that on
16:33
Speaker 1: the statutory argument, and the Eighth Circuit is the other one,
16:36
Speaker 1: that no, whenever you catch these people, they're not entitled
16:42
Speaker 1: to a bond hearing because these people are, quote unquote,
16:45
Speaker 1: still seeking admission to the country because the very nature
16:49
Speaker 1: of fighting your deportation case means you're trying to seek admission.
16:54
Speaker 1: So you're always, even if it's 20 years later, like
16:58
Speaker 1: the person who's trying to cross the border at that moment.
17:01
Speaker 1: So the other nine courts said seeking admission meant right now,
17:06
Speaker 1: that minute, trying to get into the country. And the
17:09
Speaker 1: two courts said, no, no, no, that means ever trying
17:12
Speaker 1: to get into the country, not just at that first
17:15
Speaker 1: minute you're actually physically trying to enter, but it's if
17:18
Speaker 1: you're ever trying to remain in America, you're seeking that
17:23
Speaker 1: ultimate ability to win your admission into America, it goes
17:27
Speaker 1: on forever. So that's the statutory argument. That claim is
17:31
Speaker 1: going to the Supreme Court right now. But here's what happened.
17:34
Speaker 1: The people in Ninth Circuit are okay. They get bond hearings.
17:38
Speaker 1: But if you live still in Texas, Louisiana, Mississippi, or
17:42
Speaker 1: in the Eighth Circuit, Minnesota, et cetera, in those areas,
17:47
Speaker 1: you can't get a bond hearing. So what did those
17:49
Speaker 1: people start doing? They said, fine, if I don't have
17:52
Speaker 1: a statutory right to bond, I should still be able
17:55
Speaker 1: to file a habeas petition against in a federal court
17:59
Speaker 1: saying that I have a constitutional right to bond because
18:03
Speaker 1: you can't just keep me in detention for God knows
18:07
Speaker 1: how many months without giving me a bond hearing when
18:10
Speaker 1: even criminals get bond hearing. The whole point of immigration
18:15
Speaker 1: is that it's a civil hearing. It's not a criminal hearing.
18:18
Speaker 1: This is something that the government uses to their advantage
18:21
Speaker 1: because they say it's a civil hearing, so you don't
18:23
Speaker 1: have a right to an attorney. You don't have a
18:25
Speaker 1: right to a jury. It's an expedited process, etc. You
18:29
Speaker 1: don't have any of the constitutional criminal rights. But the
18:33
Speaker 1: flip side is the reason the government can detain you
18:36
Speaker 1: without bond in a criminal proceeding is because it's criminal
18:41
Speaker 1: and you have all of these other protections. So to
18:44
Speaker 1: detain someone for a civil proceeding is a very extraordinary
18:49
Speaker 1: departure from the norm constitutionally. You're not really supposed to
18:53
Speaker 1: detain people when they're in civil proceedings. So that's what
18:57
Speaker 1: these people say. They say, I have a constitutional right
19:00
Speaker 1: to a bond hearing because you're keeping me detained for
19:02
Speaker 1: months and months and months and months, and I'm not
19:05
Speaker 1: getting a bond hearing to show that I'm not dangerous
19:08
Speaker 1: and I'm not a flight risk. If I'm dangerous or
19:11
Speaker 1: a flight risk, just deny me bond. but give me
19:13
Speaker 1: a hearing. That's what they're saying. And the 10-7 decision
19:18
Speaker 1: of the Fifth Circuit said, absolutely not. There is no
19:21
Speaker 1: constitutional right, no matter how long we hold you to
19:25
Speaker 1: a bond hearing, because in the end, you're conflating a
19:29
Speaker 1: false choice, which is that the criminal has only a
19:32
Speaker 1: choice of bond or freedom, but the foreign national doesn't
19:36
Speaker 1: only have a choice of detention or freedom, meaning in
19:39
Speaker 1: a criminal case, you're either in jail or out of jail.
19:41
Speaker 1: Those are your only Two choices. In a foreign national context,
19:46
Speaker 1: you have the keys. You go home. If you don't
19:49
Speaker 1: like what's going on, here, go home. And that's basically
19:53
Speaker 1: what the Fifth Circuit said. And they said it's unfathomable
19:56
Speaker 1: that you would give constitutional rights to foreign nationals who
20:00
Speaker 1: should just go home if they don't like that they're
20:02
Speaker 1: being detained.
20:03
Speaker 2: Especially with the split in the circuits, is this going
20:06
Speaker 2: up to the Supreme Court?
20:07
Speaker 1: That will only happen... if the Supreme Court agrees with
20:11
Speaker 1: Texas on the statutory part first. So if they don't,
20:15
Speaker 1: then the constitutional case won't matter, because if you have
20:19
Speaker 1: a statutory right to bond, then you don't need to
20:22
Speaker 1: resort to a constitutional right to bond. But if the
20:25
Speaker 1: Supreme Court, in the case that's coming up right now,
20:28
Speaker 1: rules that you don't have a statutory right to bond,
20:32
Speaker 1: then they're going to have to decide if you have
20:34
Speaker 1: a constitutional right to a bond hearing.
20:37
Speaker 2: So nine circuits have ruled against the policy. Two have
20:41
Speaker 2: blessed it. The Supreme Court, with its record on immigration cases,
20:46
Speaker 2: you know, immigration records.
20:48
Speaker 1: I'm absolutely certain this will be a 5-4 case.
20:51
Speaker 2: Really? 5-4 in which direction?
20:53
Speaker 1: And I have no idea in which direction it will be.
20:55
Speaker 1: It will be very interesting to see what will be
20:59
Speaker 1: done with these individuals who've been in the country for
21:03
Speaker 1: 10 years, 20 years, etc. Will the court resort to
21:06
Speaker 1: its favorite trick in the book, saying at the end,
21:09
Speaker 1: if there's an as-applied challenge somebody wants to bring, bring it,
21:13
Speaker 1: but at the end of the day, we're not going
21:14
Speaker 1: to do this as a matter of categorical thing? Or
21:18
Speaker 1: will they actually say, no, all these people do have
21:20
Speaker 1: an opportunity for a bond hearing? We're just going to
21:23
Speaker 1: have to wait and see.
21:24
Speaker 2: Okay. So now let's talk about immigration judges. So just explain,
21:29
Speaker 2: immigration judges work for the executive branch, but they're still
21:34
Speaker 2: supposed to be independent and impartial, right, in their rulings?
21:38
Speaker 1: The theory of the case prior to, let's say, January
21:43
Speaker 1: of 2025, and so I'm talking about the last 40,
21:46
Speaker 1: 50 years, was you applied to be an immigration judge. Yes,
21:51
Speaker 1: you are an employee of the Department of Justice, so
21:53
Speaker 1: you're not confirmed by the Senate You're not given some
21:56
Speaker 1: special ceremony or anything. Yes, you are still an employee
22:00
Speaker 1: of the Department of Justice. But during the interview process,
22:03
Speaker 1: I've been involved with interviewing people who ended up becoming
22:06
Speaker 1: immigration judges. I was part of selection panels and everything.
22:10
Speaker 1: And you would ask, are you willing to apply the
22:12
Speaker 1: law regardless of which administration? And whatever the precedent is,
22:17
Speaker 1: even if you don't like the decision, et cetera, et cetera.
22:19
Speaker 1: And it was supposed to be that. It was just
22:21
Speaker 1: supposed to be you're vetting the person for their willingness
22:24
Speaker 1: to apply whatever precedent was supposed to be applied, regardless
22:28
Speaker 1: of whatever agency. And that was supposed to be the
22:30
Speaker 1: end of it. But what turns out, at least in
22:34
Speaker 1: this new Washington Post story they're saying is happening now,
22:38
Speaker 1: is that there are immigration judges like this immigration judge,
22:42
Speaker 1: Karen Donoso-Stevens, who are having their decisions scrutinized in real
22:47
Speaker 1: time and being told to change their decisions. And theoretically,
22:52
Speaker 1: that's not how that's supposed to happen. What's supposed to
22:55
Speaker 1: happen is if somebody doesn't like the decision of an
22:58
Speaker 1: immigration judge, then either the foreign national can file a
23:02
Speaker 1: motion to reconsider or the Department of Homeland Security can
23:05
Speaker 1: file a motion to reconsider. But here, this judge was
23:09
Speaker 1: being told by the judge's supervisors, just change your decisions.
23:13
Speaker 1: Nobody's going to file a motion. Nobody's going to do anything.
23:16
Speaker 1: We just don't like the decisions that you're issuing. Change
23:20
Speaker 1: them or you'll be fired. And the judge was ultimately fired. Now,
23:24
Speaker 1: the Department of Justice is saying, no, that's not what
23:26
Speaker 1: they did. They just asked the judge to follow precedent.
23:29
Speaker 1: But this judge is saying, no, that's not what happened.
23:31
Speaker 1: The judge was being told to change decisions. that they
23:35
Speaker 1: were making in real time on specific cases.
23:38
Speaker 2: Well, so since Trump retook office, his administration has dismissed
23:43
Speaker 2: more than 100 of the about 700 immigration judges and
23:47
Speaker 2: replaced them with what many call deportation judges.
23:51
Speaker 1: Well, they are the ones who, in their official language
23:54
Speaker 1: of tweets and other statements, have said, we want to
23:58
Speaker 1: hire new judges and refers to those judges in their
24:01
Speaker 1: announcements as deportation judges. Again, I'm trying to really raise
24:06
Speaker 1: this issue of civility as much as possible. And again,
24:10
Speaker 1: you would never run for county court judge in your
24:12
Speaker 1: county and say, I'm not running, you would not say,
24:16
Speaker 1: I'm running for county court judge. I'm running for non-eviction judge,
24:20
Speaker 1: or I'm running for hanging murderer judge or whatever. You
24:25
Speaker 1: wouldn't change the name of the judge to the outcome
24:29
Speaker 1: you want in a specific matter. But that's been done here.
24:33
Speaker 1: And so I find that fascinating.
24:36
Speaker 2: It's certainly interesting and a departure from other administrations. Thanks
24:41
Speaker 2: so much, Leon, for this immigration law tutorial. That's Leon
24:45
Speaker 2: Fresco of Honda Night. Coming up next on the Bloomberg
24:49
Speaker 2: Law Show. Live streamer Hassan Piker sues commentator Scott Jennings
24:55
Speaker 2: for $ 72 million in a defamation lawsuit. I'm June Grosso
25:00
Speaker 2: and this is Bloomberg. Live streamer Hassan Piker has filed
25:06
Speaker 2: a defamation lawsuit against commentator Scott Jennings seeking more than
25:10
Speaker 2: $ 72 million in damages. According to the complaint, Jennings played
25:16
Speaker 2: a heavily edited video of Piker from 2024 and invented
25:21
Speaker 2: a quotation to falsely accuse him of calling for black
25:24
Speaker 2: Americans to be lynched on the Scott Jennings Show podcast
25:28
Speaker 2: in August. Piker is pursuing claims for defamation per se,
25:33
Speaker 2: defamation by implication, and false light in federal court in D.C.
25:39
Speaker 2: Joining me is an expert in the First Amendment, Larissa Litsky,
25:43
Speaker 2: a professor at the University of Florida Levin College of Law.
25:46
Speaker 1: Right.
25:47
Speaker 2: Larissa, explain what Piker is alleging in this defamation lawsuit.
25:52
Speaker 3: So Jennings had a little segment on his show about Piker,
25:57
Speaker 3: criticizing Piker, specifically saying that Black Americans should be worried about.
26:04
Speaker 4: Piker and his influence on El-Said.
26:07
Speaker 3: And then he aired video taken from a few years
26:11
Speaker 3: back from Mr.
26:12
Speaker 4: Piker's Twitch stream.
26:14
Speaker 3: And that video had been edited in such a way
26:18
Speaker 3: that it eliminated important context that showed Mr. Piker's statements
26:23
Speaker 3: were sarcastic. And so it made it sound as if
26:28
Speaker 3: he were calling for violence against Black Americans when really
26:32
Speaker 3: he was making fun of an argument made by a
26:34
Speaker 3: commenter that he thought the consequences of that argument were
26:39
Speaker 3: a return to a white supremacist past. So those pieces
26:43
Speaker 3: of context were eliminated and the different clips were rearranged
26:47
Speaker 3: to create an impression that Mr. Piker was calling for violence.
26:52
Speaker 3: And if that weren't enough... After the video, and with
26:56
Speaker 3: a little label under the video, Mr. Jennings said that Mr.
27:00
Speaker 3: Piker had called for a return to lynching of Black
27:02
Speaker 3: Americans and that he had a plan for lynching of
27:04
Speaker 3: Black Americans.
27:06
Speaker 2: And exactly what is he suing for?
27:08
Speaker 3: He's suing for defamation and defamation by implication. So the
27:13
Speaker 3: subtext of the comments. And then he's suing for a
27:18
Speaker 3: tort called false light.
27:20
Speaker 2: Let's start with the defamation claim. What would Piker have
27:23
Speaker 2: to show to make out a case for defamation, especially
27:27
Speaker 2: since he's a public figure?
27:29
Speaker 3: Okay, so the most important claims are the defamation claims.
27:32
Speaker 3: And in order to establish defamation, he would normally have
27:37
Speaker 3: to show that the statement was defamatory, meaning that it
27:40
Speaker 3: would be damaging to his reputation. And this, of course,
27:43
Speaker 3: is the kind of statement that would tend to damage
27:46
Speaker 3: someone's reputation if they were truly factually calling for lynchings
27:50
Speaker 3: of Black Americans.
27:51
Speaker 4: It has to identify Mr. Packer, and here it did
27:54
Speaker 4: by name.
27:55
Speaker 3: It has to be published to at least one third party,
27:58
Speaker 3: but this was published to a mass audience and evidently
28:01
Speaker 3: is still available to a mass audience.
28:03
Speaker 4: And then given Mr.
28:04
Speaker 3: Piker's prominence in public debate, he would have to show
28:08
Speaker 3: that Mr. Jennings made the comments with knowledge that they
28:12
Speaker 3: were false or created this false impression or that he
28:16
Speaker 3: recklessly disregarded the falsity or false impression created by the statements.
28:22
Speaker 3: And then he would also have to prove they were false.
28:24
Speaker 2: That's normally a very high bar. But in this situation,
28:28
Speaker 2: just from seeing it, do you think that Piker can
28:31
Speaker 2: make out a case?
28:33
Speaker 3: I think there's at least enough in the complaint to
28:37
Speaker 3: suggest that this lawsuit gets to the next you know,
28:40
Speaker 3: gets into factual discovery about what Mr. Jennings knew before
28:44
Speaker 3: he aired the video, you know, the back and forth
28:47
Speaker 3: between his team, why they chose to air this video.
28:50
Speaker 3: Did they know it was manipulated? I think that at
28:53
Speaker 3: least there's enough there in this case to likely keep
28:56
Speaker 3: it going through factual discovery. Because it looks like, you
29:01
Speaker 3: can't quite tell, but it looks like from the facts
29:03
Speaker 3: alleged in the face of the complaint, that this was
29:06
Speaker 3: kind of circulating around on the internet. This manipulated video
29:09
Speaker 3: of Mr. Piker was circulating. And Jennings seems to have
29:12
Speaker 3: picked it up from there. And so the question is,
29:15
Speaker 3: did he think it was real when he picked it up? Now,
29:19
Speaker 3: I think it would be a much better case for Mr.
29:21
Speaker 3: Jennings if he had just said, hey, check out this
29:25
Speaker 3: video of Mr.
29:26
Speaker 4: Piker. But unfortunately for Mr.
29:28
Speaker 3: Jennings, in terms of defending him in this defamation action,
29:32
Speaker 3: he not only said, hey, check out this video, But
29:35
Speaker 3: he told viewers how you should interpret the video and
29:39
Speaker 3: even explain it into, you know, almost making worse statements
29:44
Speaker 3: about Mr. Piker than even the manipulated video showed.
29:48
Speaker 2: Also, when you look at the video clip, you can
29:50
Speaker 2: see that Piker is wearing different clothes, I think three
29:53
Speaker 2: different outfits. So anyone can tell that it was cobbled
29:57
Speaker 2: together from different sources, even if Jennings did pull it
30:02
Speaker 2: from the Internet.
30:03
Speaker 3: So that should have put a reasonable journalist on notice
30:06
Speaker 3: that before I re-air this, I better check the veracity
30:11
Speaker 3: of it. And that was something that probably, like with
30:14
Speaker 3: a little digging, you could have found out, as you say,
30:18
Speaker 3: just from watching it, that it was manipulated or spliced.
30:21
Speaker 3: I watched it several times, and it is very obvious that,
30:24
Speaker 3: you know, it's kind of a Frankenstein.
30:26
Speaker 2: Could this be considered commentary? I mean, is that exempted
30:30
Speaker 2: in any way?
30:32
Speaker 4: So that's an important question. If I were arguing for Mr.
30:35
Speaker 3: Jennings, I would try to argue that this is just
30:38
Speaker 3: a statement of his opinion. It We expect heated political rhetoric,
30:43
Speaker 3: especially in the context of a campaign and especially as
30:45
Speaker 3: it's coming down to the final day.
30:47
Speaker 4: So we expect a lot of rhetoric.
30:49
Speaker 3: The problem is in his statements, he's suggesting that it's
30:53
Speaker 3: meant to be taken as fact. Like he's not encouraging
30:57
Speaker 3: to say, it's my opinion that Piker's a commie and
30:59
Speaker 3: Piker's a racist. If he just called him a racist,
31:03
Speaker 3: for example, there's a split in cases. Some cases say
31:07
Speaker 3: it's not defamatory to call somebody a racist. because it's
31:10
Speaker 3: either so subjective or it's mere name calling. But if
31:15
Speaker 3: there's an allegation of racist conduct, then that is defamatory.
31:21
Speaker 3: So I think this one probably crosses the line in
31:23
Speaker 3: saying it's not just that he's calling Mr.
31:26
Speaker 4: Piker a racist.
31:27
Speaker 3: He's saying you're arguing for racist conduct of restarting lynchings
31:32
Speaker 3: and you have a plan for that.
31:33
Speaker 2: And what about the false light claim?
31:35
Speaker 3: So False light doesn't really add anything here because false
31:39
Speaker 3: light is subject to the same restrictions as defamation. A
31:43
Speaker 3: false light claim occurs When you portray somebody in a
31:48
Speaker 3: misleading and false light, and this would be that, and
31:52
Speaker 3: it's highly offensive to a reasonable person, and you do
31:55
Speaker 3: it with actual malice, but the problem is it doesn't
31:58
Speaker 3: add anything to the defamation claim. It doesn't do anything
32:00
Speaker 3: for you that the defamation claim. You notice that it's
32:03
Speaker 3: pleaded in the complaint in the alternative. It's like, if
32:06
Speaker 3: our defamation claim doesn't work, here's our false light claim.
32:10
Speaker 3: And so it's not really doing anything independently of the
32:12
Speaker 3: defamation claim. And you can't get double recovery because you
32:15
Speaker 3: have several claims. You get one recovery for the same conduct.
32:19
Speaker 2: Speaking about recovery, and he's asking for compensatory damages not
32:23
Speaker 2: less than $ 27, 500, 000, punitive damages $ 45 million. Piker is a
32:30
Speaker 2: very controversial, some might say divisive figure. Does he have
32:34
Speaker 2: to show that the Jennings podcast actually harmed him?
32:38
Speaker 3: So this is one of the strange features of defamation
32:41
Speaker 3: law is defamation law allows something called presumed damages. And
32:47
Speaker 3: it's damages that flow from the very nature of the
32:50
Speaker 3: defamatory statement itself, the audience reach and all the surrounding context.
32:54
Speaker 3: And usually lawyers, they can plead a lot. But when
32:58
Speaker 3: it comes time to go to trial, they usually need
33:01
Speaker 3: to put more on the table to convince the jury. However, recently,
33:05
Speaker 3: you know, defamation complaints have gotten out of control in
33:09
Speaker 3: the amounts of damages they're asking for because the complaints
33:12
Speaker 3: don't have to be benchmarked to actual harm.
33:15
Speaker 4: I find this.
33:15
Speaker 3: Claim for $ 27 million to be incredibly implausible. And yet
33:20
Speaker 3: I can point to defamation verdicts in the multiple millions
33:24
Speaker 3: of dollars in recovery claims. And so although I find
33:29
Speaker 3: this implausible, and I think a jury would certainly expect
33:32
Speaker 3: you to produce some evidence, particularly in this case, it's
33:35
Speaker 3: not crazy.
33:38
Speaker 4: It's implausible, but it's not crazy.
33:40
Speaker 2: Maybe we're used to President Trump always sues on defamation
33:43
Speaker 2: for billions. It's usually 10 billion.
33:46
Speaker 3: Yes, and that's a strategic choice that Trump makes in
33:49
Speaker 3: part because When he's suing some of these publicly held corporations,
33:53
Speaker 3: it creates reporting obligations to their shareholders based on how
33:57
Speaker 3: much he sues for.
33:58
Speaker 4: So there's a strategic reason that he's doing that. Also,
34:01
Speaker 4: the more.
34:02
Speaker 3: Damages you ask for, the more terror it strikes in
34:06
Speaker 3: the defendant's heart. And so when it's not constrained by
34:11
Speaker 3: some backing at the complaint stage, you really can ask
34:14
Speaker 3: for a lot.
34:15
Speaker 2: Also, according to the complaint, Jennings got a written demand
34:19
Speaker 2: for a retraction from Piker's attorneys on August 31st and
34:25
Speaker 2: still left the content up there. In fact, I mean,
34:28
Speaker 2: you can see it even today.
34:30
Speaker 4: Yes.
34:30
Speaker 2: Is that surprising considering what we've been talking about? And
34:34
Speaker 2: is it damaging to him?
34:36
Speaker 3: It is. So it depends on where the litigation is
34:40
Speaker 3: being conducted. But oftentimes, if the speaker retracts, it reduces
34:46
Speaker 3: the amount of damages they can ultimately be liable for.
34:49
Speaker 3: The other issue is, does failure to retract help support
34:54
Speaker 3: the claim that you know or recklessly disregard the falsity
34:58
Speaker 3: in that you've been notified that there's a problem? Instead
35:02
Speaker 3: of investigating, you continue to keep putting forth the false information.
35:07
Speaker 4: So yes, if I had been Mr. Jennings' lawyer, I
35:09
Speaker 4: would have considered very much retracting this.
35:13
Speaker 2: We're talking about Trump's many defamation lawsuits before, and some
35:17
Speaker 2: of his lawsuits seem unwinnable because he's a public figure
35:22
Speaker 2: and the bar is so high, but he may be
35:24
Speaker 2: bringing them for a lot of different reasons. Could that
35:27
Speaker 2: be the case with this lawsuit as well?
35:30
Speaker 3: What I think you need to think about in this
35:32
Speaker 3: case is the uses of defamation law.
35:36
Speaker 4: So there's a question of whether this.
35:40
Speaker 3: Defamation case is really about seriously pursuing this to jury
35:45
Speaker 3: trial and recovery and all of that, or whether this
35:48
Speaker 3: is really a kind of press release to dispute assertions
35:54
Speaker 3: that are politically harmful to not only Mr. Piker, but
35:58
Speaker 3: candidates that Mr. Piker has been associated with. And so
36:02
Speaker 3: this defamation action, part of the is it's not just
36:08
Speaker 3: about defamation. It's about refuting, you know, a false allegation
36:13
Speaker 3: in the political sphere.
36:14
Speaker 2: It'll be fascinating to see how Jennings responds to this
36:17
Speaker 2: in court. Fascinating conversation. Thanks so much, Larissa. That's Professor
36:22
Speaker 2: Larissa Litsky of the University of Florida Levin College of Law.
36:27
Speaker 2: And that's it for this edition of the Bloomberg Law Show. Remember,
36:30
Speaker 2: you can always get the latest legal news on our
36:32
Speaker 2: Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,
36:36
Speaker 2: and at www.bloomberg.com slash podcast slash law. And remember to
36:42
Speaker 2: tune into the Bloomberg Law Show every weeknight at 10 p.m.
36:46
Speaker 2: Wall Street time. I'm June Grosso, and you're listening to Bloomberg.