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Can Rene Good's Family Sue the Ice Officer Who Shot Her? · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grosseo from Bloomberg Radio.
0:08
Speaker 2: The president here is very simple. You have a federal
0:10
Speaker 2: law enforcement official engaging in federal law enforcement action. That's
0:14
Speaker 2: a federal issue. That guy's protected by absolute immunity. He
0:17
Speaker 2: was doing his job.
0:18
Speaker 3: The rhetoric started on the very day that Renee Good
0:22
Speaker 3: was shot to death by an ICE officer. Vice President JD.
0:26
Speaker 3: Vance held a news conference and declared that the ICE
0:29
Speaker 3: officer couldn't be touched for his actions. That message has
0:33
Speaker 3: been reinforced by others in the Trump administration. In fact,
0:38
Speaker 3: on Tuesday, the Department of Homeland Security posted a clip
0:42
Speaker 3: of White House Deputy Chief Stephen Miller amplifying that message.
0:47
Speaker 4: To all ICE officers. You have federal immunity in the
0:50
Speaker 4: conduct of your duties, and anybody who lays a hand
0:53
Speaker 4: on you, or tries to stop you, or tries to
0:55
Speaker 4: obstruct you is committing a felony. You have immunity to
1:00
Speaker 4: perform your duties, and no one, no city official, no
1:03
Speaker 4: state official, no illegal alien, no leftist agitator, or domestic
1:08
Speaker 4: insurrectionists can prevent you from fulfilling your legal obligations and duties.
1:13
Speaker 3: So are they right. Will that ICE officer face any
1:17
Speaker 3: consequences for killing the mother of three? Joining me to
1:21
Speaker 3: answer that question is Anya Bidwell, a senior attorney at
1:25
Speaker 3: the Institute for Justice. Anya, are these Trump administration officials right?
1:31
Speaker 3: Do these ICE officers have absolute immunity?
1:34
Speaker 5: I hate to say that they are right, but unfortunately
1:40
Speaker 5: they are very close to being right, and there are
1:45
Speaker 5: exceedingly fewer routes to sue federal officials. It's been happening
1:49
Speaker 5: for a long time. It's not just a Trump administration invention.
1:54
Speaker 5: But what they're doing now is really exposing this gap
1:58
Speaker 5: in accountability between state and local officials, for example, Derek
2:03
Speaker 5: Chauvin who murdered George Floyd, and federal officials like those
2:08
Speaker 5: ICE agents who killed Renee Good. So they are very
2:13
Speaker 5: close to being right. And the reason they're out there
2:16
Speaker 5: talking about this is because, you know, before the Biden administration,
2:19
Speaker 5: the first Trump administration, the Bush administration, the Obama administration,
2:23
Speaker 5: they weren't going around and talking about absolute community. The
2:26
Speaker 5: reason they're talking about it here now is because they
2:29
Speaker 5: want those ICE agents to go out there and do
2:33
Speaker 5: their worst and instead of de escalating, instead of trying
2:36
Speaker 5: to keep the peace. They want them to be out
2:39
Speaker 5: there marching on the streets and scaring people, and so
2:42
Speaker 5: they're telling them just so you guys know, there is
2:46
Speaker 5: nothing that can be done to you. There are, of course,
2:49
Speaker 5: some routes.
2:50
Speaker 3: And we should mention that Renee Goods family has already
2:54
Speaker 3: hired some civil rights lawyers.
2:56
Speaker 5: So said that he will file under the Federal Third
2:59
Speaker 5: Claims Act.
3:00
Speaker 3: Probably okay, Yeah, So first of all, what about a
3:02
Speaker 3: lawsuit against the federal government, the family filing against ICE
3:08
Speaker 3: or DHS.
3:10
Speaker 5: Yes, that is the best route, even though it is
3:15
Speaker 5: riddled with complexity, as the lawyer who is representing really
3:18
Speaker 5: a Goods family explained, it is riddled with complexity. It
3:22
Speaker 5: is not a really full vindication of anyone's rights, but
3:28
Speaker 5: it is the best route to accountability. The way the
3:31
Speaker 5: law works now, you file a claim under the Federal
3:34
Speaker 5: Thought Claims Act, not against the officer who killed you
3:39
Speaker 5: or who hurt you, but against the United States government
3:43
Speaker 5: in that officer's stead. The statute originally was really intended
3:48
Speaker 5: for things like, you know, a USPS driver running over somebody,
3:54
Speaker 5: like a negligent step of an act, and then somebody
3:57
Speaker 5: would file a claim with the agency and agency would
4:00
Speaker 5: compensate for that negligent action. The statute is not a
4:05
Speaker 5: great fit for constitutional violations like these. And the problem
4:11
Speaker 5: with the statute too, is that the government invariably invokes
4:16
Speaker 5: the so called discretionary function immunity. So they basically say
4:20
Speaker 5: the officer was acting within the scope of his duty
4:24
Speaker 5: and he was exercising discretion in that he was making
4:27
Speaker 5: a choice between whether to turn right or left, and
4:31
Speaker 5: therefore discretion immunity applies, and even the federal government cannot
4:35
Speaker 5: be held accountable. So those suits are very hard, but
4:39
Speaker 5: it's still the best option, the FTCA route against the
4:42
Speaker 5: government itself.
4:43
Speaker 3: Can you think of a big case recently or you
4:47
Speaker 3: know the last case where plaintiffs won using that route.
4:51
Speaker 5: That's a great question. There are no immediate cases that
4:57
Speaker 5: come to mind. What comes to my mind is actually
4:59
Speaker 5: the case we argued in front of the Supreme Court
5:02
Speaker 5: just last year where there was a wrong house raid
5:06
Speaker 5: on an innocent family's home pre dawn, even though there
5:11
Speaker 5: was an address on the mailbox right there in front
5:16
Speaker 5: of the house telling the officers that this was a
5:19
Speaker 5: wrong house to raid, and so the family sued the
5:23
Speaker 5: government for this wrong house raid. It was in Atlanta, Georgia,
5:28
Speaker 5: and the government basically argued, you can't sue us because
5:32
Speaker 5: the officer exercised judgment and there is supremacy clause immunity
5:37
Speaker 5: and discretionary function immunity. And the case went all the
5:41
Speaker 5: way to the Supreme Court, and Justice Gorsuch even said,
5:44
Speaker 5: you'd think there would be a remedy, wouldn't you for
5:48
Speaker 5: that kind of a raid, But he said, the answer
5:50
Speaker 5: is not that simple, and the Supreme Court did not
5:54
Speaker 5: rule for the family. They remained the case back for reconsideration.
5:59
Speaker 5: So well, this is pretty much like the most positive
6:02
Speaker 5: outcome is that we get to reargue this case again
6:07
Speaker 5: years and years after this actual wrong house raid, and
6:11
Speaker 5: the family still has seen no justice. The problem then,
6:16
Speaker 5: is that not too many lawyers even want to argue
6:18
Speaker 5: these cases because it takes years and years to get anywhere,
6:22
Speaker 5: as this example demonstrates.
6:24
Speaker 3: Yeah, I remember that case. So now let's talk about
6:28
Speaker 3: the route that is difficult, impossible, and that's suing the
6:32
Speaker 3: individual officers. Suing the ICE agent here, Yes, that.
6:37
Speaker 5: Is impossible because they are ICE agents, and even in general,
6:41
Speaker 5: with any federal official, it's extremely difficult. So at the
6:46
Speaker 5: root of The problem is really congressional admission. After the
6:51
Speaker 5: Civil War, Congress passed a statue it called Section nineteen
6:55
Speaker 5: eighty three to allow suits for the violation of the
6:59
Speaker 5: United States Constitution against state and local officials who we
7:03
Speaker 5: essentially weren't complying with reconstruction and violating people's constitutional rights.
7:08
Speaker 5: At the time, you could sue federal government in state courts,
7:12
Speaker 5: and there was no fear that state courts would be
7:16
Speaker 5: easy on federal officials. If anything, state courts at the
7:18
Speaker 5: time were hostile to federal officials. So Congress wasn't worried
7:22
Speaker 5: about federal officials not getting proper treatment in state courts,
7:27
Speaker 5: so they didn't include them in this statute. They only
7:30
Speaker 5: included state and local officials, and that admission is now
7:35
Speaker 5: used by the Supreme Court as an excuse to deny
7:40
Speaker 5: any access to courts to plaintiffs whose violations happened to
7:45
Speaker 5: be conducted by federal officials. They're saying Section nineteen eighty
7:50
Speaker 5: three does not have federal officials in there. There isn't
7:54
Speaker 5: an analog like that for federal officials, and they say
7:58
Speaker 5: Congress should amend that statute include federal officials in there,
8:03
Speaker 5: and then we will have no problem with people opening
8:06
Speaker 5: court house doors, but as long as federal officials are
8:09
Speaker 5: not part of that type of a statute, we're not
8:12
Speaker 5: going to open the court house doors.
8:14
Speaker 6: Now. On the other.
8:15
Speaker 5: Hand, there is a problem that circuit courts are interpreting
8:21
Speaker 5: another statute that Congress passed as prohibiting suits against federal
8:27
Speaker 5: officials in state courts too, so that traditional remedy I
8:31
Speaker 5: told you about is also unavailable. So the way that
8:35
Speaker 5: the law stands today is that you turn to federal
8:39
Speaker 5: courts and the Supreme Court is telling you, you, guys,
8:42
Speaker 5: are not part of Section nineteen eighty three, we can't
8:44
Speaker 5: do anything about it. And you go to state courts
8:48
Speaker 5: and they're basically saying, well, circuit courts so far have
8:52
Speaker 5: said that cases in state courts are unavailable. Though we
8:57
Speaker 5: do think that by far the best option right now
9:02
Speaker 5: is actually for states to pass their own statutes like
9:06
Speaker 5: that section nineteen eighty three that Congress passed back in
9:09
Speaker 5: the day, and we as public interest lawyers, we have
9:13
Speaker 5: a really good argument to explain to the Supreme Court
9:16
Speaker 5: why that kind of route actually should be available.
9:19
Speaker 6: But this is something that's very new.
9:21
Speaker 5: We are encouraging states to pass these laws, and we
9:25
Speaker 5: feel very good about arguing that that's a proper route.
9:30
Speaker 5: If Congress is not going to do its job and
9:32
Speaker 5: it's not going to amend Section nineteen eighty three to
9:34
Speaker 5: include federal officials, then its responsibility of every state to
9:38
Speaker 5: do so instead.
9:40
Speaker 3: Now, once since nineteen eighty has the Supreme Court allowed
9:44
Speaker 3: a bivens action which allows people to sue federal officers
9:48
Speaker 3: directly to go forward. Do you know why the Court
9:52
Speaker 3: took that turn.
9:53
Speaker 5: Yes, that's exactly what I was talking about in terms
9:56
Speaker 5: of Section nineteen eighty three in excluding federal officials. So
9:59
Speaker 5: in in the seventies when this case Bevins was decided,
10:03
Speaker 5: the Court didn't really think that, as statuted by Congress,
10:08
Speaker 5: authorizing a right to sue was necessary. The Court at
10:12
Speaker 5: the time thought, you know what, you could just sue
10:15
Speaker 5: directly under the Constitution, just say my Fourth Amendment rights
10:19
Speaker 5: were violated, here's my proof, and I demand a day
10:23
Speaker 5: in court. That was the attitude in the seventies, and
10:26
Speaker 5: then as we're going into the eighties, the Court, really
10:31
Speaker 5: led by Justice Scalia, is championing this idea that federal
10:37
Speaker 5: courts are court of limited jurisdiction, they should be very
10:40
Speaker 5: humble about the kind of cases that they can hear,
10:44
Speaker 5: and that without authorization from Congress, they cannot really do anything.
10:51
Speaker 5: Their hands are tied, right, And that's when they start
10:54
Speaker 5: pointing to that statute section nineteen eighty three and saying
10:57
Speaker 5: federal officials are not part of that statute. We can't
11:00
Speaker 5: just imply an authorization. We must see it in a text,
11:06
Speaker 5: and we don't see it in the text, so there
11:09
Speaker 5: is nothing we can do.
11:10
Speaker 6: That really is.
11:11
Speaker 5: Starting to take shape in the nineteen eighties. That's why
11:16
Speaker 5: earlier I said that it's not of Trump's administration's making, right,
11:20
Speaker 5: that really starts to take shape in the nineteen eighties
11:23
Speaker 5: and kind of reaches into the two thousands where we're
11:27
Speaker 5: suing FBI officials for torture. That's when the Court is
11:31
Speaker 5: really starting to say, you guys, we mean what we say.
11:34
Speaker 5: We need a statute to authorization. And then it really
11:37
Speaker 5: culminates in twenty twenty two with the decision Eggbird versus
11:42
Speaker 5: bull At, where they basically say the door is all
11:46
Speaker 5: but shut, and frankly, Justice Gorsage and I kind of
11:49
Speaker 5: sympathize with that. He writes a concurrence, and he says,
11:52
Speaker 5: we should just overturn Vivens so we don't give any
11:55
Speaker 5: false hope to anybody. And so everybody understands that you
11:59
Speaker 5: cannot sue officials in state court for as long as
12:02
Speaker 5: we have Vivns on the books. Some people are under
12:05
Speaker 5: the misapprehension that there is any kind of accountability, which
12:09
Speaker 5: actually there isn't.
12:10
Speaker 6: That's why the.
12:11
Speaker 5: Simplest thing to do is to a man section nineteen
12:14
Speaker 5: eighty three. Then the Supreme Court will say, fine, this
12:16
Speaker 5: is great. Now you can open the courthouse door. And
12:19
Speaker 5: short of that, it's states who should take action.
12:22
Speaker 3: Coming up next, how some states are fighting back. This
12:26
Speaker 3: is Bloomberg. On the day that thirty seven year old
12:29
Speaker 3: Renee Good was shot to death by an Ice officer,
12:33
Speaker 3: Vice President JD. Vance declared with certainty that there would
12:37
Speaker 3: be no consequences for the officer.
12:40
Speaker 2: That guy is protected by absolute immunity. He was doing
12:42
Speaker 2: his job. The idea that Tim Walls and a bunch
12:45
Speaker 2: of radicals in Minneapolis are going to go after and
12:48
Speaker 2: make this guy's life miserable because he was doing the
12:51
Speaker 2: job that he was asked to do is preposterous. The
12:54
Speaker 2: unprecedented thing is the idea that a local official can
12:58
Speaker 2: actually prosecute a federal official with absolute immunity. I've never
13:01
Speaker 2: seen anything like that. It would get tossed out by
13:04
Speaker 2: a judge.
13:05
Speaker 3: I've been talking to Anna Bidwell, a senior attorney at
13:08
Speaker 3: the Institute for Justice. So then Anya, realistically, Vice President JD.
13:14
Speaker 3: Vance and Trump aid Steven Miller are correct in saying
13:18
Speaker 3: to the ICE officers, don't worry about what you do.
13:22
Speaker 3: You're protected exactly.
13:24
Speaker 5: It pains me to say this, but they are correct.
13:28
Speaker 5: And again, like I said, previous administrations didn't like to
13:31
Speaker 5: advertise that right because it's kind of appalling that you
13:35
Speaker 5: can't see federal officials, so they didn't talk about it.
13:37
Speaker 5: Then we would go and litigate in court, and they
13:39
Speaker 5: would make those arguments in court. This administration is happy
13:43
Speaker 5: to talk about it because they want to encourage ICE
13:47
Speaker 5: to go out there and do their worst, to not
13:50
Speaker 5: care about repercussions, to not de escalate, to basically go
13:54
Speaker 5: out there and break all the constitutional guarantees because fundamentally,
13:59
Speaker 5: there rea ison't a way to hold too account. Now,
14:01
Speaker 5: the federal government, if it wanted to, could prosecute those officers,
14:06
Speaker 5: but does anybody here really believe that the federal government
14:10
Speaker 5: is actually going to do that. Instead of investigating Jonathan Ross,
14:14
Speaker 5: they are investigating the wife of Renee Good. Right, So
14:19
Speaker 5: we are not counting on the federal government to step
14:21
Speaker 5: in here the one meaningful mechanism, And when it comes
14:25
Speaker 5: to state prosecutions, there's another complication and another immunity that
14:31
Speaker 5: comes in. So states generally speaking, cannot prosecute federal officials
14:36
Speaker 5: when federal officials are exercising their federal duties. So again,
14:41
Speaker 5: the federal government doesn't even feel compelled to cooperate with
14:45
Speaker 5: the state government in the situation, doesn't even feel compelled
14:48
Speaker 5: to share the evidence because they also know that the
14:51
Speaker 5: state itself is really fundamentally unable to prosecute a federal officer.
14:56
Speaker 6: So that's where we are right now.
14:58
Speaker 5: And Jdvans and Steven Miller are very comfortable going out
15:02
Speaker 5: there and telling Ice, you guys are good. There is
15:05
Speaker 5: nothing really that plaintiffs can do right now.
15:08
Speaker 3: So Minnesota, you know they're going to try to do
15:10
Speaker 3: an investigation, right, I mean, is there a way, even
15:14
Speaker 3: if it's a loser way, is there a way for
15:16
Speaker 3: Minnesota to prosecute that Ice officer criminally.
15:20
Speaker 6: Try I would try.
15:22
Speaker 5: You know, again, if I'm a state, what I'm going
15:25
Speaker 5: to try to do at this point is a I'm
15:28
Speaker 5: going to work to pass a statute to allow suits
15:31
Speaker 5: for violations of federal Constitution in my courts. And also
15:35
Speaker 5: I'm going to try to prosecute the officer. Now immediately
15:40
Speaker 5: there will be a motion to dismiss filed, there will
15:43
Speaker 5: be arguments against it, but at least you are trying
15:45
Speaker 5: to get out there and try to do something. I
15:48
Speaker 5: would also try to just publicly even say here's what
15:52
Speaker 5: we want to see, right, some of it is public engagement.
15:55
Speaker 5: When you are a state, if we were to investigate,
15:58
Speaker 5: this is what we would want to see. These are
16:00
Speaker 5: the kind of things that would allow us to evaluate
16:04
Speaker 5: what took place here. Federal government, are you doing this
16:06
Speaker 5: or are you not doing this? States certainly can't just
16:09
Speaker 5: sit there and do nothing. But it's an uphill battle
16:13
Speaker 5: all the way.
16:14
Speaker 3: What is Illinois doing?
16:16
Speaker 5: Yes, Illinois is not the only state, but Illinois is
16:19
Speaker 5: the one that actually passed the law, and so DOJ
16:23
Speaker 5: is suing it over it right now.
16:25
Speaker 6: So there are several states.
16:27
Speaker 5: Illinois is the first one in the line of states
16:30
Speaker 5: closely behind our California, New York. We also have Colorado, Oregon,
16:37
Speaker 5: and Maryland who are looking to pass those statutes that
16:43
Speaker 5: allow people to sue for violations of the Federal Constitution.
16:47
Speaker 6: In state courts.
16:48
Speaker 5: So Illinois was the first to get past the finish line.
16:53
Speaker 5: California just got its bill out of the Judiciary Committee
16:58
Speaker 5: this Tuesday, and many other states are working on that too,
17:02
Speaker 5: so they all kind of differ in the approaches that
17:05
Speaker 5: they're taking. Illinois took a bit more of a targeted
17:09
Speaker 5: approach with specifically talking about immigration enforcement. States like California
17:16
Speaker 5: and New York taking a more general approach and talking
17:19
Speaker 5: about just anybody who violates the United States Constitution should
17:25
Speaker 5: be held accountable, and that broader approach is actually less
17:30
Speaker 5: vulnerable to suits by the DOJ. So we are encouraging
17:34
Speaker 5: states to take that broader approach instead of singling out
17:36
Speaker 5: a particular agency or a particular conduct.
17:39
Speaker 6: But we are very.
17:40
Speaker 5: Encouraged to see that states are starting to do this
17:43
Speaker 5: at least some states.
17:44
Speaker 3: And Congress has introduced an act whereas that.
17:48
Speaker 6: Yes, Yes, Congress.
17:50
Speaker 5: This is the third time that Representative Hank Johnson introduced
17:54
Speaker 5: this bill. It's called the Bivens Act, referring back to
17:59
Speaker 5: that case, trying to codify that right in section nineteen
18:03
Speaker 5: eighty three instead of just an implied right under the
18:05
Speaker 5: Fourth Amendment or other constitutional amendments. It's called the Bivens Act.
18:10
Speaker 5: Your listeners can just google Hank Johnson the Bivens Act
18:13
Speaker 5: and it will come up, and you'll see how simple
18:15
Speaker 5: the amendment is. It basically says agents who act under
18:19
Speaker 5: federal law should also be held accountable just like those
18:22
Speaker 5: who act under state law.
18:25
Speaker 6: That's it. It's the simplest amendment.
18:27
Speaker 5: It would take Congress two minutes to pass it if
18:30
Speaker 5: they actually had the will to do it.
18:32
Speaker 6: And again, it's not just ice officers.
18:35
Speaker 5: Right. I had somebody come to me last year where
18:38
Speaker 5: a gentleman was killed in an atf raid. They were
18:42
Speaker 5: executing a warrant because he violated a gun show loophole.
18:45
Speaker 5: And again, it was a pre dawn raid. The gentleman
18:48
Speaker 5: didn't know that anybody was coming. He's got a gun
18:51
Speaker 5: and he thinks somebody is about to come in and
18:54
Speaker 5: rob him and hurt his wife. So he's there with
18:57
Speaker 5: the gun and they shoot him and they kill him dead. Right,
19:00
Speaker 5: And Jim Jordan was outraged by this, and I call
19:04
Speaker 5: on Jim Jordan to say, let's pass this Bivens Act
19:08
Speaker 5: so the family who was hurt by the ATF could
19:11
Speaker 5: also have a day in court like the family here
19:14
Speaker 5: who was hurt by ice.
19:16
Speaker 6: So it's not.
19:17
Speaker 5: A partisan issue, but right now it is being treated
19:20
Speaker 5: as one, and we don't really see much movement on
19:24
Speaker 5: the Bivens Act in Congress.
19:25
Speaker 3: Let's just say you could too a federal officer. I mean,
19:28
Speaker 3: the federal officer would probably be indemnified right by the government.
19:32
Speaker 3: I mean they wouldn't have to pay out of their
19:34
Speaker 3: own pocket anyway.
19:35
Speaker 5: Yes, that's what invariably happens, and it happens with state
19:39
Speaker 5: and local officials as well, and they have indemnification provisions
19:43
Speaker 5: and the governments invariably indemnify them. But at least then
19:47
Speaker 5: the officer is called out, his actions are analyzed, the
19:52
Speaker 5: family gets some answers about what happens, because these days
19:56
Speaker 5: they don't even feel like they need to explain themselves.
19:59
Speaker 5: And then that officer is unnoticed because he did cost
20:03
Speaker 5: money to the agency, right, so there is some sort
20:05
Speaker 5: of accountability going forward too, and the agencies are much
20:09
Speaker 5: more careful about how they hire because they know that
20:13
Speaker 5: problematic officers are going to cause them a lot of money.
20:15
Speaker 5: And in some situations when the violations are outrageous, then
20:19
Speaker 5: the government basically says, you're on your own.
20:22
Speaker 6: We're not going to cover it.
20:24
Speaker 5: It all depends, but fundamentally, the important thing is that
20:28
Speaker 5: if you allow families to sue, then they don't carry
20:32
Speaker 5: the burden of the constitutional violation right that they are
20:35
Speaker 5: actually able to take control of the situation and get
20:40
Speaker 5: to discovery, figure out what happened, and have the jury
20:44
Speaker 5: determine what it is that happened and who owns what.
20:49
Speaker 5: That's a very important thing to have that simply there
20:53
Speaker 5: isn't anything even close to that right now.
20:55
Speaker 3: And I want to mention that you've written a legal
20:57
Speaker 3: insight column for Bloomberg Law entitled Renee Goods family can't
21:02
Speaker 3: sue under federal law just like in the op ed.
21:06
Speaker 5: I just can't stop thinking about this, right where what
21:09
Speaker 5: happened to George Floyd was absolutely horrific and at least
21:14
Speaker 5: there was some sort of a mechanism right for the
21:17
Speaker 5: state to look into the actions of the officer and
21:21
Speaker 5: prosecute him, and for the family to sue the municipality
21:26
Speaker 5: and say you guys did wrong by us by hiring
21:30
Speaker 5: this guy and improperly training him. None of those options
21:34
Speaker 5: are available when it comes to federal officials, and that's
21:38
Speaker 5: something that really is not right. And you can see
21:42
Speaker 5: that kind of manifest itself in the way Ice acts.
21:47
Speaker 5: Right when Jonathan Ross shoots Renee Good and then he
21:51
Speaker 5: calls her that's the kind of thing that I think
21:53
Speaker 5: wouldn't happen if he knew that there would.
21:56
Speaker 6: Be some sort of repercussions to his actions.
21:59
Speaker 3: It's been great to looking to you. Thanks so much.
22:01
Speaker 3: That's Anya Bidwell, a senior attorney at the Institute for Justice.
22:06
Speaker 3: President Trump has been insistent that the US needs to
22:10
Speaker 3: acquire Greenland for national security.
22:14
Speaker 6: If we don't go in, Russia is going to go in,
22:16
Speaker 6: and China is going to go in.
22:18
Speaker 7: And there's not a thing that Denmark can do about it,
22:21
Speaker 7: but we can do everything about it.
22:23
Speaker 3: Trump has been ratcheting up the rhetoric, but officials in
22:26
Speaker 3: Denmark have made it clear that Greenland is not for sale.
22:30
Speaker 3: Secretary of State Marco Rubio and Vice President JD Vance
22:34
Speaker 3: met with Danish and Greenland officials at the White House
22:37
Speaker 3: on Wednesday. Afterwards, Danish Foreign Minister Lars Luga Rasmussen said
22:43
Speaker 3: their perspectives continue to differ from.
22:46
Speaker 7: Trump's foss ideas that would not respect territorial integrity of
22:53
Speaker 7: the Kingdom of Denmark and the riot of such dissemination
22:57
Speaker 7: of the Greenlandic people, of course totally unacceptable.
23:02
Speaker 3: Joining me is Jessica Peek. She's the director of the
23:04
Speaker 3: International and Comparative Law Program at UCLA Law School. Jess So,
23:10
Speaker 3: after that meeting, it doesn't seem like diplomatic negotiations are
23:15
Speaker 3: going so well.
23:17
Speaker 8: Yeah, I mean, as you said, the Foreign minister has
23:20
Speaker 8: said there's a fundamental disagreement and that Trump's threats, repeated
23:24
Speaker 8: threats to take over Greenland were totally unacceptable. I think
23:28
Speaker 8: they also said that the conversation was frank but constructive,
23:31
Speaker 8: and so then the question is what does that actually
23:33
Speaker 8: practically mean. I know that there has been an agreement
23:36
Speaker 8: to create a high level working group to discuss the
23:39
Speaker 8: ways to try and determine a path forward from here,
23:43
Speaker 8: But at the same time we have President Trump still
23:46
Speaker 8: maintaining that his intention is to take over Greenland, and
23:49
Speaker 8: so for as long as he maintains that position. It's
23:51
Speaker 8: very difficult to see what the path through is because
23:56
Speaker 8: Denmark very understandably has been, you know, full throated in
24:01
Speaker 8: their condemnation of Trump's attacks as threats to international law
24:04
Speaker 8: and the sovereignty of Denmark and the self determination of
24:07
Speaker 8: the people of Greenland. So those two positions are just
24:10
Speaker 8: fundamentally opposed to one another.
24:12
Speaker 3: So just explain the international law here.
24:16
Speaker 8: Yeah, So any threat or use of force against Greenland
24:20
Speaker 8: such that we have right now is a violation of
24:22
Speaker 8: Article two four of the UN Charters. So threats alone
24:26
Speaker 8: are enough to be a violation there. It's worth noting
24:29
Speaker 8: that there are a couple of lawful basis for a
24:32
Speaker 8: use of force, neither of them are present here. One
24:34
Speaker 8: would be a Security Council resolution authorizing force, and the
24:38
Speaker 8: second would be a action of self defense in response
24:41
Speaker 8: to an armed attack under Article fifty one of the
24:44
Speaker 8: UN Charter, and we don't have either of those here.
24:46
Speaker 8: So already, even these threats are enough to constitute a
24:49
Speaker 8: violation of Article two four of the UN Charter. And
24:53
Speaker 8: even without any direct use of force, the US is
24:56
Speaker 8: also violating the customary international law prohibition on interval, and
25:01
Speaker 8: this is a prohibition that prevents states from intervening in
25:04
Speaker 8: the domain reservey of another state, and so the domain
25:07
Speaker 8: reserve is areas of state activity that are really the
25:12
Speaker 8: internal or domestic affairs of a state and therefore within
25:15
Speaker 8: its domestic jurisdiction. This customary prohibition has been recognized by
25:19
Speaker 8: the International Court of Justice in numerous occasions, including in
25:24
Speaker 8: the military and paramilitary activities in and against Nicaragua case
25:28
Speaker 8: in nineteen eighty six that involved the United States, and
25:31
Speaker 8: also the armed activities on the territory of the Congove
25:34
Speaker 8: case in two thousand and two. Trump's language around his
25:37
Speaker 8: threats towards Greenland, things like they can take the easy
25:40
Speaker 8: way or the hard way, can be interpreted as a
25:43
Speaker 8: form of coercion and therefore a violation on this prohibition
25:47
Speaker 8: of intervention.
25:48
Speaker 3: And if the US military was used, would that be
25:51
Speaker 3: comparable to the situation with Russia and Ukraine.
25:55
Speaker 8: Yes, it would be a violation of Article two for
25:58
Speaker 8: the UN Charter and an active aggression similar to what
26:01
Speaker 8: we just saw a week and a half ago with
26:03
Speaker 8: the Trump invasion of Venezuela, which was also a violation
26:06
Speaker 8: of Article two for the UN Charter and an active aggression.
26:09
Speaker 3: If he strikes in Iran, will that also be a
26:12
Speaker 3: similar violation?
26:15
Speaker 8: Yes, you know, the only use of force is permissible
26:18
Speaker 8: is either in response to an armed attack as an
26:21
Speaker 8: exercise of Article fifty one of the UN Charter, which
26:24
Speaker 8: we don't have an armed attack against the United States
26:27
Speaker 8: from Iran, or under a Security Council authorization, which we
26:31
Speaker 8: also do not currently have in relation to Iran. So yes,
26:34
Speaker 8: we would be talking about very similar, potentially very similar
26:38
Speaker 8: violations of international law.
26:40
Speaker 3: I mean, the reason that Trump keeps giving for going
26:44
Speaker 3: into Greenland is that it's needed for the national security
26:47
Speaker 3: of the United States. But Greenland also has you know,
26:51
Speaker 3: amazing raw materials, and as far as security, has Greenland
26:56
Speaker 3: ever refused to allow the US to establish more security
27:01
Speaker 3: there bases or whatever.
27:03
Speaker 8: So, you know, experts seem to agree on the strategic
27:06
Speaker 8: importance of Greenland for the United States national security, but
27:10
Speaker 8: there's no reason that that requires the United States to
27:15
Speaker 8: control or own Greenland. And in fact, trying to control
27:19
Speaker 8: our own Greenland really seems counterproductive to US national security
27:23
Speaker 8: as it's going to damage this vital relationship between Greenland
27:26
Speaker 8: and Denmark and other NATO members and the United States.
27:30
Speaker 8: And you know, as you alluded to, the Greenland and
27:33
Speaker 8: Denmark have been very cooperative and permissive of the US
27:38
Speaker 8: maintaining or having access to the territory of Greenland for
27:42
Speaker 8: national security measures and for military presences. You know, if
27:47
Speaker 8: we think as far back as nineteen forty, the US
27:49
Speaker 8: military forces occupied Greenland when Denmark was invaded by Germany,
27:54
Speaker 8: and vital Air Force installations was stationed there for US
27:57
Speaker 8: troops to get to Europe. Similarly, that was very strong
28:00
Speaker 8: cooperation during the Cold War between the US and Denmark
28:03
Speaker 8: to defend Greenland from threats against the Soviet Union. And
28:06
Speaker 8: so it's very unclear to me why we're treating this
28:09
Speaker 8: situation where presumably the national security threat is one coming
28:13
Speaker 8: from Russia. We have a model of cooperation there that
28:17
Speaker 8: existed previously, and I don't think Denmark or Greenland have
28:21
Speaker 8: indicated that they're not willing to maintain that level of cooperation.
28:26
Speaker 8: But these repeated threats against Greenland by the Trump administration
28:31
Speaker 8: are undoubtedly going to damage the relationship between these two
28:36
Speaker 8: countries and Denmark.
28:38
Speaker 3: The Danish Defense Ministry announced that it's increasing its military
28:43
Speaker 3: presence in Greenland, along with some NATO allies. France, Germany,
28:48
Speaker 3: Norway and Sweden announced that they were sending very small
28:51
Speaker 3: numbers of troops. So this seems to be more symbolic
28:56
Speaker 3: than anything else.
28:58
Speaker 8: Yeah, I think at the moment this is just a
28:59
Speaker 8: show of political support, right, it's NATO allies going to
29:03
Speaker 8: indicate their support to Denmark in this situation. It also
29:08
Speaker 8: might be and I have no insider knowledge, but it
29:10
Speaker 8: might be also to scope out how a ground deployment
29:13
Speaker 8: could be carried out if one were required. Further down
29:16
Speaker 8: the line, you know, if Trump actually conducted military force
29:20
Speaker 8: in Greenland, and this really brings us to you know,
29:23
Speaker 8: how this might play out with NATO.
29:26
Speaker 6: Right.
29:26
Speaker 8: So, NATO is a military and political alliance that was
29:30
Speaker 8: formed by America and European countries in nineteen forty nine
29:34
Speaker 8: to provide collective security and to defend its members from threats.
29:38
Speaker 8: An Article five of the NATO Treaty contains a collective
29:42
Speaker 8: defense provision, and so that basically states that an attack
29:46
Speaker 8: on one NATO ally is attack on all NATO allies,
29:50
Speaker 8: and in response to any attack, each of the NATO allies,
29:54
Speaker 8: in the exercise of the right to individual or collective
29:58
Speaker 8: self defense recognized by other Article fifty one of the
30:01
Speaker 8: UN Charter will assist the party that is attacked. This
30:04
Speaker 8: is a legal obligation. There are some things to consider
30:08
Speaker 8: around this right. So one is does Greenland fall under
30:12
Speaker 8: the auspices of NATO, And undoubtedly it does. Article six
30:16
Speaker 8: of the NATO Treaty basically provides that an armed attack
30:20
Speaker 8: must be committed against the territory of any parties in
30:23
Speaker 8: Europe or North America. Geographically, Greenland is part of North
30:27
Speaker 8: America as it sits on a North American tectonic plate,
30:30
Speaker 8: but geopolitically it is tied to Europe and it's a
30:32
Speaker 8: politically autonomous territory within Denmark. And so it's very clear
30:37
Speaker 8: under international law that Denmark has sovereignty over Greenland, and
30:41
Speaker 8: Greenland is part of Denmark. This was confirmed by a
30:45
Speaker 8: case of the Permanent Court of International Justice back in
30:48
Speaker 8: nineteen thirty three. Greenland has been incorporated in Denmark through
30:52
Speaker 8: domestic legislation in the fifties that was recognized by the
30:56
Speaker 8: UN General Assembly, and really over the past seventy five,
31:00
Speaker 8: the United States has repeatedly acknowledged that Denmark has sovereignty
31:04
Speaker 8: over Greenland, and so there's really no question that Greenland
31:06
Speaker 8: falls within the auspices of the NATO Treaty. So the
31:09
Speaker 8: question is what happens next. Article five of NATO requires
31:14
Speaker 8: that there be an attack against a NATO territory, and
31:18
Speaker 8: we don't have that attack yet. So if an armed
31:21
Speaker 8: attach were to occur, Article five could be triggered at
31:24
Speaker 8: the request of Denmark, and if Denmark made that request,
31:27
Speaker 8: then all of the allies would be obligated under I
31:31
Speaker 8: legal obligation to respond. They do not need to respond
31:34
Speaker 8: with a use of force, though, so there are other
31:36
Speaker 8: things that they could do. So the only other situation
31:38
Speaker 8: in which Article five has been in voked was after
31:40
Speaker 8: nine to eleven, and the collective security response is under
31:44
Speaker 8: Article five. There really range from intelligence sharing to military action,
31:49
Speaker 8: and so there's a whole host of things that could
31:52
Speaker 8: happen that would be, you know, not a full military
31:57
Speaker 8: action within the territory of Greenland. Denmark could also request
32:02
Speaker 8: assistance from other NATO allies under Article four that would
32:07
Speaker 8: allow NATO allies to consult where there's been a threat
32:12
Speaker 8: to the territorial integrity or political independence or security of
32:15
Speaker 8: any of the states, And that's what we have here.
32:17
Speaker 8: That would not allow the NATO allies to exercise any
32:21
Speaker 8: force though, and so I think what we're seeing with
32:24
Speaker 8: these military troops from NATO allied countries going to Greenland
32:29
Speaker 8: and from Denmark as well, is really just a show
32:32
Speaker 8: of political support. At this point, there has not been
32:36
Speaker 8: any official requests that I'm aware of made by Denmark
32:39
Speaker 8: under either Article four or Article five. But the NATO
32:43
Speaker 8: agreement is there and is to be activated for these
32:46
Speaker 8: very kinds of reasons, right, Like that was the whole
32:50
Speaker 8: rationale behind the creation of NATO, and so the potential
32:55
Speaker 8: for it to be activated definitely exists.
32:57
Speaker 3: So I guess it's just wait and see, right now,
33:00
Speaker 3: see how serious Trump is about acquiring Greenland.
33:04
Speaker 8: Yeah, we do have to wait and see. I mean,
33:05
Speaker 8: I think we're seeing some pretty strong rebukes from Congress
33:09
Speaker 8: on this, right. So on Monday, there was a bipartisan
33:14
Speaker 8: bill introduced, the NATO Unity Protection Act, that would prohibit
33:19
Speaker 8: the use of US Department of Defense or US Department
33:22
Speaker 8: of State funds to blockade, occupy annex or a certain
33:26
Speaker 8: control over the sovereign territory of a NATO member state
33:29
Speaker 8: without that allies consent. So that's potentially something there. I
33:33
Speaker 8: think overall, the introduction of that bill is very welcome development.
33:37
Speaker 8: If it receives very robust bipartisan support, it would signal
33:41
Speaker 8: to our NATO allies that Congress intends for the US
33:44
Speaker 8: to abide by its commitments under the NATO Treaty. If
33:46
Speaker 8: such a bill were to pass, it would place restraints
33:49
Speaker 8: on the president, or it should place restraints on the
33:51
Speaker 8: President acting unilaterally and continuing to threaten our NATO relationship. However,
33:56
Speaker 8: we have seen that President Trump has made repeated threats
33:59
Speaker 8: again NATO in this term and the last, and we've
34:02
Speaker 8: seen in other instances that the President is willing to
34:05
Speaker 8: flo out congressional authority when it suits his broader agenda.
34:09
Speaker 8: I also saw reporting this morning that there is a
34:11
Speaker 8: bipartisan resolution being introduced today again repudiating President Trump's threats
34:17
Speaker 8: against Greenland and affirming the US respect for the sovereignty
34:21
Speaker 8: of Denmark and of Greenland. And it also warns that
34:24
Speaker 8: any US military action against Danish territory would require Congress's approval.
34:29
Speaker 8: So again, that should put limits on the ability of
34:33
Speaker 8: the President to act unilaterally. Whether or not it does,
34:37
Speaker 8: I think is an open question at the moment.
34:39
Speaker 3: We'll see if Congress actually moves forward on any of those.
34:43
Speaker 3: Thanks so much, jess That's Jessica Peak, director of the
34:47
Speaker 3: International and Comparative Law Program at UCLA Law School. Let's
34:52
Speaker 3: turn out to the FBI searching the home of a
34:55
Speaker 3: Washington Post reporter who allegedly obtained and reported on clous
35:00
Speaker 3: classified information from a Pentagon contractor who's currently in jail.
35:05
Speaker 3: That's according to Attorney General Pambondy. The Washington Post identified
35:10
Speaker 3: the reporter as Hannah Nathanson. She was at her home
35:13
Speaker 3: in Virginia at the time of the search and was
35:16
Speaker 3: told she was not a target of the probe. Joining
35:19
Speaker 3: me is First Amendment attorney Jeff Lewis of jeff Lewis Law. Jeff,
35:23
Speaker 3: how unusual is it to execute a search warrant at
35:26
Speaker 3: a reporter's home.
35:28
Speaker 1: It's very unusual. I'm surprised the judge signed off on
35:31
Speaker 1: such a warrant given the facts of this case. That
35:34
Speaker 1: apparently the leaker has been detained or arrested already, so
35:38
Speaker 1: it's not like there's this hot threat, a time sensitive
35:42
Speaker 1: threat going on that. Rather, they have the leaker, they
35:45
Speaker 1: know who he is, so I'm surprised.
35:47
Speaker 3: According to reports, the government said that she was engaged
35:51
Speaker 3: in a conversation with the leaker involving classified information. Does
35:56
Speaker 3: that make any difference?
35:58
Speaker 1: Well, the standards of the court, you is is there
36:00
Speaker 1: an immediate arm to national security? Is the reporter in
36:06
Speaker 1: possession of documents that would violate like the Espionage Act?
36:11
Speaker 1: Those are the kinds of the questions that the court
36:13
Speaker 1: looks at. Not is a reporter speaking to a confidential source,
36:17
Speaker 1: but is there immediacy? Is there an immediate threat and
36:20
Speaker 1: a grave threat to national security?
36:23
Speaker 3: There is no law that makes it a crime for
36:26
Speaker 3: a journalist to obtain or publish classified information. But are
36:31
Speaker 3: there any repercussions from the Assange case?
36:34
Speaker 1: Well, think that the president was criticized as heavily then
36:38
Speaker 1: as the president's being criticized now in terms of the
36:41
Speaker 1: Trump administration in their use of warrants, Because in the
36:44
Speaker 1: Assage case, there's always this assumption, there's always these norms
36:48
Speaker 1: that these materials would be safeguarded, that they'd be only
36:52
Speaker 1: used for purposes of the as prosecution and not used
36:56
Speaker 1: for political or purposes to deter reporting. In this case
37:01
Speaker 1: and this day and age, with concerns about the Trump
37:04
Speaker 1: government's violation of freedom of the press and freedom of speech,
37:08
Speaker 1: people are concerned about the deterrent effect here and that
37:12
Speaker 1: this seizure was more than just investigating this leaker, but
37:16
Speaker 1: instead was meant to send a signal to anyone who's
37:19
Speaker 1: critical of the Trump administration or communicates with leakers.
37:24
Speaker 3: Now, the Justice Department has their own regulations about this,
37:28
Speaker 3: and they've been changed under this ag Pam Bondi, can
37:33
Speaker 3: you explain what the regulations were before and what they
37:36
Speaker 3: are now?
37:38
Speaker 1: Well, yeah, Normally, it's the process, especially when you have
37:40
Speaker 1: a search warrant as opposed to an exigent search, that
37:43
Speaker 1: materials sees like this are escrowed, if you will, or bargoed,
37:47
Speaker 1: and they're placed in a secure setting and they can
37:51
Speaker 1: only be used. The seized materials can only be accessed
37:55
Speaker 1: for a very specific purpose related to the criminal proceeding
37:59
Speaker 1: that the search warrant was in. She did after Bondi
38:03
Speaker 1: took over, I believe those regulations were relaxed such that
38:07
Speaker 1: there are fewer safeguards on what that information can be
38:11
Speaker 1: used for, what the seised devices can be searched for,
38:14
Speaker 1: and there's no s growing or embargoing of these materials.
38:18
Speaker 3: What can the reporter do at this point to get
38:21
Speaker 3: her materials back.
38:24
Speaker 1: Yeah, after the fact. It's hard because the government could
38:27
Speaker 1: have made copies of the image devices, right, the phones
38:31
Speaker 1: and the watch and the laptop. So it's hard for
38:34
Speaker 1: this reporter to have a remedy. She can certainly get
38:37
Speaker 1: her gadgets back, but the invasion, the theft of her information.
38:44
Speaker 1: You'll never ondo that. This underscores the needs for reporters
38:47
Speaker 1: to use end to end encryption to turn off face
38:51
Speaker 1: recognition on their phones, to make it as hard as
38:53
Speaker 1: possible for gadgets to be accessed by the government if
38:56
Speaker 1: they're physically seized.
38:58
Speaker 3: This might be about more than just the classified information.
39:01
Speaker 3: In her reporting, she noted that she had amassed like
39:06
Speaker 3: more than a thousand sources of federal workers who were
39:10
Speaker 3: frequently communicating with her, and one wonders if you know
39:15
Speaker 3: they're looking for more than just classified information related to
39:20
Speaker 3: this one government.
39:22
Speaker 1: Worker absolutely both looking for additional leakers within the government
39:28
Speaker 1: and a deterrent to leakers and a deterrent to reporters
39:31
Speaker 1: for communicating with leakers. There are bigger implications than just
39:35
Speaker 1: one government contractor here.
39:38
Speaker 3: Is there any way to you know, impede the government's
39:41
Speaker 3: coming after reporters?
39:43
Speaker 1: Well, Congress could pass further legislation to restrict the power
39:49
Speaker 1: of judges to issue search warrants. That's one option. Reporters
39:54
Speaker 1: and newsrooms can protect themselves by having policies regarding security
39:57
Speaker 1: for their electronic gadgets, using only to end encryption, you know,
40:03
Speaker 1: software like signal, to communicate with confidential sources and to
40:07
Speaker 1: only use specific devices when sensitive confidential source information is
40:12
Speaker 1: gathered by news reporters.
40:14
Speaker 3: Thanks Jeff. That's first Amendment Attorney Jeff Lewis, and that's
40:18
Speaker 3: it for this edition of the Bloomberg Law Show. Remember
40:21
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40:23
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