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Ilhan Omar Raid & Public Execution · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.
0:07
Speaker 2: By doing it, maybe other people won't be doing what
0:11
Speaker 2: he did.
0:12
Speaker 3: So I'll make a decision ultimately.
0:14
Speaker 2: I know what the military would like to do, but
0:17
Speaker 2: we'll make a decision.
0:18
Speaker 4: President Donald Trump says he hasn't made a decision on
0:22
Speaker 4: Defense Secretary Pete Hegseth's plan to live stream the December
0:27
Speaker 4: 3rd execution of Nidal Hassan. the former U.S. Army physician
0:32
Speaker 4: who's been sentenced to death over the 2009 Fort Hood
0:36
Speaker 4: mass shooting that killed 13 people and wounded 32 others.
0:42
Speaker 4: The last public execution in our country took place almost
0:46
Speaker 4: 100 years ago in the 1930s, and Hassan's execution would
0:51
Speaker 4: be the first by the U.S. military since 1961. Vice
0:56
Speaker 4: President J.D. Vance says he won't be watching.
1:00
Speaker 5: I hope that people don't forget that this is a
1:02
Speaker 5: guy who brutally murdered a lot of innocent people. Now,
1:05
Speaker 5: that said, I mean, look, if it's ultimately live streamed,
1:08
Speaker 5: I'm not going to be watching it.
1:09
Speaker 4: My guest is Richard Garnett, a professor at Notre Dame
1:12
Speaker 4: Law School and director of the school's program on church,
1:16
Speaker 4: state and society. Rick, first, give us your reaction to
1:20
Speaker 4: this plan to live stream this execution by firing squad.
1:26
Speaker 5: Well, as you know, certainly there's a long history of
1:30
Speaker 5: public executions. We can think back to high school when
1:34
Speaker 5: we were reading Tale of Two Cities and the gleeful
1:37
Speaker 5: people knitting, watching people go to the guillotine. But that's
1:40
Speaker 5: something that we've moved away from pretty decisively in the
1:44
Speaker 5: last century or so. I think the international law consensus
1:47
Speaker 5: is against public executions. Every state that has the death
1:51
Speaker 5: penalty has pretty elaborate protocols that limit access to these executions. procedures.
1:58
Speaker 5: I think there are good reasons for that. There are
2:01
Speaker 5: broadcasting rules that would limit the depiction of any execution
2:05
Speaker 5: over broadcast media. And I think there's a general sense,
2:08
Speaker 5: it's a sense that I would share that to make
2:11
Speaker 5: something like this a public spectacle is not only demeaning
2:15
Speaker 5: to the person being punished, but it's coarsening of the culture.
2:19
Speaker 5: It's not good for the viewers, in my view. Now,
2:23
Speaker 5: some people would say, and there's something to this, that
2:25
Speaker 5: the modern regime of capital punishment has, in a sense,
2:28
Speaker 5: been dishonest. We've hidden it away and we've given it
2:33
Speaker 5: this kind of illusory form. coding of doctors and medicine
2:38
Speaker 5: and protocols and so on.
2:40
Speaker 1: And that tends to obscure what's actually happening, of course.
2:43
Speaker 5: But even with that said, I think the policy and
2:46
Speaker 5: the moral arguments against any proposal to televise or live
2:51
Speaker 5: stream the execution are by far the stronger ones. And
2:54
Speaker 5: if you want to add one more thing to the mix,
2:57
Speaker 5: it strikes me that it's just a very bad.
2:59
Speaker 1: Idea, given the.
3:03
Speaker 5: Publicly depict this person's execution, which would only have the effect,
3:08
Speaker 5: I think, of inflaming people around the world who might
3:11
Speaker 5: share his ideological hostility to America. So I see a
3:15
Speaker 5: lot of arguments against it and no good arguments for it.
3:18
Speaker 5: And then just because I'm a lawyer, let me add
3:19
Speaker 5: one more thing.
3:20
Speaker 1: I think it's probably illegal. Well, that's important.
3:23
Speaker 4: So explain why you think it's illegal.
3:25
Speaker 5: Probably. Well, we have state governments, we have the federal government,
3:28
Speaker 5: and this is a special case because, you know, it's
3:30
Speaker 5: coming out of the military context. Obviously, the The military
3:34
Speaker 5: context is one that courts defer to a fair bit.
3:37
Speaker 5: I think it's really clear that state law and federal
3:40
Speaker 5: law do not permit live streaming. There's a question about
3:44
Speaker 5: whether the relevant military regulations permit it. My understanding is
3:49
Speaker 5: that Secretary Hegseth is of the view that because it's
3:53
Speaker 5: not explicitly prohibited, that means that it's permitted. But I
3:57
Speaker 5: think it's pretty clear in the regulations, which set out
4:01
Speaker 5: a very limited definition list of people who are going
4:04
Speaker 5: to be permitted to observe, that that list is clearly
4:08
Speaker 5: intended to be exclusive, and it was intended to keep
4:11
Speaker 5: the proceedings private. So if this matter were to be litigated, again,
4:16
Speaker 5: there often is going to be deference to the military,
4:19
Speaker 5: but I would expect courts to say that this isn't authorized.
4:24
Speaker 4: In other words, if this were in a So basically,
4:28
Speaker 4: you couldn't live stream an execution in one of the states,
4:32
Speaker 4: but because it's the military, there's a different set of rules?
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Speaker 5: Yeah, there's some regulations in place that are different from
4:40
Speaker 5: the ones that particular states that have the death penalty.
4:42
Speaker 5: So we're not going to be looking to, you know,
4:44
Speaker 5: Texas's protocols. We're going to be looking to the military ones.
4:48
Speaker 5: And like I said, Secretary Hegseth has suggested that there
4:52
Speaker 5: might be a loophole available in those regulations, but I'm
4:56
Speaker 5: not convinced that that's correct. And, you know, one could
5:00
Speaker 5: imagine from the president's perspective, and he is ultimately the
5:04
Speaker 5: one who gets to make the call about these things
5:06
Speaker 5: going forward, he might not want to add a wrinkle
5:09
Speaker 5: that could potentially delay this and draw it out in litigation.
5:12
Speaker 4: Hassan told a panel of military experts in 2010 that
5:16
Speaker 4: he wished he'd been killed during the attack. And he
5:19
Speaker 4: hasn't exhausted all his legal options.
5:21
Speaker 1: So.
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Speaker 4: One wonders if he'll even oppose this.
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Speaker 5: He did say that, and it's possible that he wouldn't
5:27
Speaker 5: oppose it. But if he did want to oppose it,
5:30
Speaker 5: there would be avenues still available because this decision would
5:33
Speaker 5: create new.
5:34
Speaker 1: Issues that haven't been litigated yet.
5:36
Speaker 5: And even though it's the military context, I believe that
5:39
Speaker 5: there would be avenues available to Hassan.
5:41
Speaker 1: If he chose.
5:42
Speaker 5: If he doesn't choose, you might have some third parties
5:45
Speaker 5: trying to intervene. That's often pretty difficult to do. You know,
5:48
Speaker 5: third party standing is pretty rare. But the potential for delay...
5:52
Speaker 5: If the secretary were to really try to push forward
5:55
Speaker 5: with this idea, I think it's pretty high.
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Speaker 4: President Trump said on Saturday, there are two thoughts. Don't
6:01
Speaker 4: show it and show it because, you know, by showing it,
6:04
Speaker 4: maybe other people won't be doing what he did. So
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Speaker 4: I'll make a decision. Ultimately, I know what the military
6:09
Speaker 4: would like to do, but I'll make a decision.
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Speaker 5: I'm no expert on this, but I suspect that what
6:14
Speaker 5: a lot of our men and women in uniform would
6:17
Speaker 5: prefer is maybe different from what the Secretary is talking about. Because, again,
6:20
Speaker 5: if this were to go forward publicly, I could imagine
6:23
Speaker 5: it putting a lot of our service members at risk
6:26
Speaker 5: in various places.
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Speaker 4: Under international law, the UN has said that this violates
6:33
Speaker 4: an international human rights treaty, the Convention Against Torture.
6:37
Speaker 5: Yeah, that is the view. And of course, it's not
6:41
Speaker 5: the case that all countries observe that. I mean, we
6:43
Speaker 5: know that there are countries that carry out public executions.
6:46
Speaker 5: I suspect that the international law rule wouldn't be the
6:50
Speaker 5: one that would carry the day for the secretary. But
6:53
Speaker 5: if they ended up in the same place, that would
6:55
Speaker 5: probably be, from my perspective, a good thing.
6:57
Speaker 4: It's kind of odd that you have, you know, two
7:00
Speaker 4: high-profile executions here. within such a short period of time
7:04
Speaker 4: in the news, because you had that botched execution in
7:07
Speaker 4: Tennessee of Krista Pike, who is back in prison. She's
7:12
Speaker 4: recovered from that botched execution.
7:15
Speaker 5: Yeah. Now, I don't know whether we know that she's recovered.
7:18
Speaker 5: I think we know that she's survived.
7:20
Speaker 2: You're right.
7:20
Speaker 1: This raises really interesting questions.
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Speaker 5: You know, we have, there's a lot of constitutional law
7:24
Speaker 5: on this point, which might sound a little morbid, but
7:27
Speaker 5: it's still the law that a person cannot be executed
7:30
Speaker 5: without unless they are in a condition where they can
7:34
Speaker 5: understand what's happening to them and its significance. So sometimes
7:38
Speaker 5: we use the term competent to be executed, which, again,
7:41
Speaker 5: I realize has a strange ring to it. I don't
7:43
Speaker 5: know enough to know whether there might well be reasons
7:46
Speaker 5: to think that, in this case, the damage that was
7:49
Speaker 5: done by virtue of the failed execution attempt would make
7:53
Speaker 5: it impermissible to go forward. Another issue is that the
7:57
Speaker 5: fact that this failed so badly might well provide the
8:02
Speaker 5: basis for a challenge to this method of execution in Tennessee.
8:06
Speaker 5: That is, you can imagine arguing that even though lethal
8:10
Speaker 5: injection has been a permissible method for a while now,
8:13
Speaker 5: that Tennessee has shown that it can't carry out that
8:16
Speaker 5: execution consistent with the Constitution's ban on cruel and unusual punishment. Now,
8:22
Speaker 5: my understanding is that at one point, she requested execution
8:26
Speaker 5: by firing squad and that did not go forward. I
8:29
Speaker 5: suppose it's possible that Tennessee would permit that method this
8:32
Speaker 5: time rather than avoid trying yet again with the lethal injection,
8:36
Speaker 5: which they haven't been able to carry out.
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Speaker 4: I mean, this is the second time this year that
8:41
Speaker 4: they had a botched But it's also brought to light
8:45
Speaker 4: things that I didn't realize, which is the ways that
8:48
Speaker 4: states are obtaining these drugs. I mean, sometimes paying in
8:52
Speaker 4: cash because they can't get them and the people who
8:55
Speaker 4: are administering them are not necessarily trained to do what
9:01
Speaker 4: they're doing.
9:01
Speaker 5: Right.
9:02
Speaker 1: Yeah, you're totally right.
9:03
Speaker 5: I mean, for a number of reasons, some of it
9:04
Speaker 5: is the pharmaceutical companies, you know, won't permit their products
9:08
Speaker 5: to be used. You know, the professional associations of various
9:12
Speaker 5: medical personnel won't permit their people to participate.
9:15
Speaker 1: So you do end.
9:16
Speaker 5: Up with weaknesses, both in terms of the training of
9:18
Speaker 5: the people who are carrying it out and in terms
9:21
Speaker 5: of the kind of reliability of what's being used in
9:23
Speaker 5: these so-called cocktails that are put together to try to
9:26
Speaker 5: bring about the execution. And sometimes people will complain, well,
9:30
Speaker 5: this is the fault of the drug companies or the
9:32
Speaker 5: American Medical Association or what have you.
9:34
Speaker 1: But in a sense, that doesn't really matter.
9:36
Speaker 5: I mean, if you can't get the drugs, then a
9:38
Speaker 5: state has to come up with another method rather than
9:42
Speaker 5: using these cocktails that are unreliable and have the serious
9:45
Speaker 5: potential for causing excessive suffering.
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Speaker 4: I mean, I take it the Supreme Court has never
9:50
Speaker 4: considered having someone basically executed twice.
9:54
Speaker 5: There have been executions where, you know, it sort of
9:57
Speaker 5: didn't work and the person's executed again later.
9:59
Speaker 1: That has... happened. I think the way to think.
10:01
Speaker 5: About it is not so much like, is there a
10:03
Speaker 5: constitutional barrier to the state trying twice? I mean, you know,
10:09
Speaker 5: there were these traditions centuries ago where if you survived
10:12
Speaker 5: a hanging, you might be set free because the thinking
10:15
Speaker 5: was that God had spoken, which might well be true.
10:18
Speaker 5: But in American law, I think the way to think
10:21
Speaker 5: about it is not so much is there some kind
10:23
Speaker 5: of a prohibition on a second try, but rather, does
10:27
Speaker 5: the failed first try tell us anything about the ability
10:31
Speaker 5: of the state to competently do the second try?
10:35
Speaker 1: And if we think the state can't competently do the.
10:37
Speaker 5: Second try, then it seems to me that you might
10:39
Speaker 5: well have a basis for saying, well, then this method
10:41
Speaker 5: can't be used constitutionally.
10:43
Speaker 4: And I believe her lawyers are trying to get the
10:45
Speaker 4: governor to commute her sentence to life in prison.
10:49
Speaker 5: That's completely available. That's always available to a governor. And again,
10:53
Speaker 5: you can imagine the governor invoking traditions, again, going back
10:56
Speaker 5: centuries of saying that someone who has been through this,
10:59
Speaker 5: you know, in a sense has suffered enough.
11:01
Speaker 1: The governor is not required to do that.
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Speaker 5: Clemency is very much something that we've given to the
11:05
Speaker 5: discretion of the executive branch.
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Speaker 1: But I suspect, given all the media.
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Speaker 5: Attention on this, there might well be, maybe pressure is
11:12
Speaker 5: the wrong word, but there might well be persuasion that's
11:14
Speaker 5: brought to bear on the governor to do that.
11:17
Speaker 4: And in the meantime, the governor has ordered a state
11:21
Speaker 4: investigation into the botched execution. Thanks so much, Rick. That's
11:25
Speaker 4: Professor Richard Garnett of Notre Dame Law School. I'm June Grosso,
11:30
Speaker 4: and you're listening to Bloomberg. Congresswoman Ilhan Omar is an
11:35
Speaker 4: outspoken critic of President Trump and has been the target
11:39
Speaker 4: of his attacks for years. Trump has even accused the
11:43
Speaker 4: Somalia-born congresswoman of crimes.
11:47
Speaker 2: When you look at the Minnesota scam, a lot of
11:51
Speaker 2: it has to do with Somalia. Nobody's calling out anybody,
11:54
Speaker 2: but a lot of it has to do, but it's
11:55
Speaker 2: Somalia and plenty of others. And I believe the governor
12:00
Speaker 2: is I believe Ilhan Omar is complicit.
12:06
Speaker 4: Trump has called her crooked and repeatedly suggested she should
12:10
Speaker 4: leave the U.S. But today there was a startling escalation
12:14
Speaker 4: in those attacks as federal agents searched her home in
12:18
Speaker 4: the final weeks of her re-election bid. The congresswoman has
12:22
Speaker 4: repeatedly denied allegations of wrongdoing, calling them false and politically motivated.
12:29
Speaker 4: Joining me is immigration law expert Leon Fresco, a partner
12:33
Speaker 4: at Holland & Knight and the former head of the
12:35
Speaker 4: Office of Immigration Litigation during the Obama administration. So, Leon,
12:40
Speaker 4: the DHS secretary cited an ongoing investigation last month that
12:46
Speaker 4: he suggested was examining potential fraud on her family's immigration paperwork.
12:52
Speaker 4: But this is a real escalation to execute a search
12:56
Speaker 4: warrant on her house just 22 days before the election.
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Speaker 3: Yeah, it is certainly unconventional in many, many ways. First,
13:04
Speaker 3: you have the election issue, not the immigration issue, which
13:07
Speaker 3: is can you actually do something like this within 60
13:10
Speaker 3: days of an election? That used to be DOJ's longstanding,
13:14
Speaker 3: although non-binding practice, which was to avoid overt investigative steps
13:19
Speaker 3: that could affect an election. Now, having said that, it
13:22
Speaker 3: wasn't that Ilhan Omar necessarily was in a competitive election,
13:26
Speaker 3: and maybe they have some really compelling reason that they
13:29
Speaker 3: need to do this immediately, but that is certainly odd.
13:33
Speaker 3: Then the next question becomes, what are they looking for?
13:36
Speaker 3: Because if they're looking for claims related to the supposed
13:42
Speaker 3: sham marriage that she might have had with someone that
13:45
Speaker 3: may or may not have been her brother, that wouldn't
13:47
Speaker 3: actually affect her citizenship because that happened after she became
13:51
Speaker 3: a citizen. She became a citizen at age 17. And
13:54
Speaker 3: if they're looking for, instead of that, information that her
13:58
Speaker 3: father lied on his citizenship application, which meant that he
14:02
Speaker 3: couldn't get citizenship and that she couldn't derivatively become a
14:07
Speaker 3: citizen as a result of her father's citizenship application. Well,
14:11
Speaker 3: the problem there is the father is dead now and
14:15
Speaker 3: There's going to be massive constitutional litigation about whether the
14:19
Speaker 3: mens rea is there for a child who became a
14:23
Speaker 3: citizen when there's a deceased father. And whether, A, was
14:27
Speaker 3: there any mens rea that you can punish the daughter with?
14:30
Speaker 3: But also, does it violate the due process clause? Because
14:33
Speaker 3: here's a person who didn't make any misrepresentation. And 30
14:37
Speaker 3: years later, you're trying to denaturalize them. Will there be
14:41
Speaker 3: some constitutional limits about what you can do there? to
14:45
Speaker 3: strip someone of citizenship once their parent is dead and
14:49
Speaker 3: when the misrepresentation was only made by the parent and
14:52
Speaker 3: not them. So all of that will need to be tested.
14:55
Speaker 3: There are no precedents on any of that. So we
14:57
Speaker 3: will have to see. But I don't know if there's
14:59
Speaker 3: an actual crime. Any crime would seem to me... to
15:03
Speaker 3: be something where it would probably be barred by the
15:07
Speaker 3: statute of limitations because all of these things happened far
15:10
Speaker 3: more than five years ago and all of these crimes
15:13
Speaker 3: are longer than five years ago, unless they say she
15:16
Speaker 3: gave some false statement recently to somebody. But other than that,
15:20
Speaker 3: I don't know. So it will be very, very interesting
15:23
Speaker 3: to see once there's an actual piece of paper, what
15:27
Speaker 3: is the actual piece of paper say about what she
15:30
Speaker 3: actually did wrong?
15:32
Speaker 4: The search warrant, lists of potential immigration crimes, including false
15:36
Speaker 4: statements and fraud and immigration paperwork, as well as a
15:41
Speaker 4: general conspiracy charge, according to the New York Times. It
15:45
Speaker 4: seems like the potential immigration paperwork that they're talking about
15:49
Speaker 4: is the paperwork that her father submitted when she was 17.
15:55
Speaker 6: Right.
15:55
Speaker 3: And that's the question that's not litigated that we're going
15:57
Speaker 3: to need to figure out is if the father, one
16:00
Speaker 3: of the versions of the story of the father lied
16:02
Speaker 3: about his name is, And another is that the father
16:04
Speaker 3: lied about being a refugee. But in either case, the
16:07
Speaker 3: father is dead now, and he's been dead for a
16:09
Speaker 3: long time. And she became a citizen in 2000, so
16:12
Speaker 3: that was 26 years ago, at age 17. And so
16:17
Speaker 3: the question is going to be whether there are some
16:20
Speaker 3: constitutional constraints upon denaturalizing someone who didn't make any misrepresentations
16:26
Speaker 3: on their own, who didn't have any mens rea to
16:28
Speaker 3: make any misrepresentations. but you're still doing it on the
16:32
Speaker 3: basis of what their father did. And so all of
16:36
Speaker 3: that's going to be very interesting to litigate. And I
16:40
Speaker 3: think they will have to litigate it unless they have
16:43
Speaker 3: something completely different that we just don't know about.
16:46
Speaker 4: Leon, can you have an immigration crime without intent?
16:49
Speaker 3: I mean, the problem is on these naturalization forms, you
16:52
Speaker 3: have to make a knowing fraudulent misstatement. And so they're
16:56
Speaker 3: going to have to say that the father did that
16:58
Speaker 3: and the father is dead and So they're going to
17:01
Speaker 3: have to have some very sound documentary proof about what
17:04
Speaker 3: the father's intent was because her intent is irrelevant. She
17:08
Speaker 3: was just a derivative applicant, meaning she was riding on
17:11
Speaker 3: the coattails of her father. And so I don't know
17:15
Speaker 3: if it's going to be that or are they going
17:17
Speaker 3: to have something completely different that we're just not aware
17:20
Speaker 3: about at this time.
17:21
Speaker 4: Have you ever seen someone's U.S. citizenship taken away because
17:25
Speaker 4: of lies by another person?
17:27
Speaker 3: I've never seen it in a case. where the actual
17:31
Speaker 3: primary person is dead. I've never seen a naturalization go
17:36
Speaker 3: after the derivative of the primary person as the main
17:40
Speaker 3: person that the denaturalization is going after. I have seen
17:44
Speaker 3: cases where you want to denaturalize some very evil person,
17:48
Speaker 3: and yes, they have relatives that then unfortunately get swept
17:52
Speaker 3: into the denaturalization, so they have to leave too. But
17:56
Speaker 3: they're not the target of this. They're just the derivatives
17:59
Speaker 3: of this. But this is completely different because the applicant
18:03
Speaker 3: themselves is dead now. And so they're not the subject
18:07
Speaker 3: of denaturalization. You'd be saying only Ilhan Omar is the subject,
18:11
Speaker 3: but you're trying to prove a case against her dead father.
18:14
Speaker 3: And that I've never seen before. And there's going to
18:16
Speaker 3: be a lot of due law that's established there about
18:20
Speaker 3: whether there are any constitutional constraints preventing the government from
18:24
Speaker 3: doing this.
18:25
Speaker 4: Trump has been talking about going after her for so long.
18:28
Speaker 4: So can you raise in an immigration case, a case
18:32
Speaker 4: about immigration crimes? that this is a targeted prosecution.
18:37
Speaker 2: Sure.
18:38
Speaker 3: You can always raise that in any context and ask
18:41
Speaker 3: for a dismissal, and that's always at the discretion of
18:45
Speaker 3: the district court judge, although the appellate court can say
18:48
Speaker 3: that the district court judge abused their discretion by finding
18:51
Speaker 3: that to be a politically motivated charge. But at the
18:54
Speaker 3: end of the day, what's really going to matter is,
18:57
Speaker 3: I think if you were a judge and you were
18:59
Speaker 3: predisposed to grant a case like that, it'd be easier
19:02
Speaker 3: to just say, that the misrepresentation was not material, whichever
19:06
Speaker 3: one that the father did in that situation. But I
19:10
Speaker 3: don't know. In the end, we're going to have to
19:12
Speaker 3: wait and see the paperwork and see what is the
19:14
Speaker 3: material misrepresentation that they claim existed at the time of
19:19
Speaker 3: the father's citizenship application because she wouldn't have made any
19:23
Speaker 3: representations of any kind because she was just riding along
19:26
Speaker 3: as a minor who was a derivative applicant on her
19:29
Speaker 3: father's citizenship.
19:31
Speaker 4: Are there allegations that she wasn't really 17 at the time?
19:35
Speaker 3: Well, that may be also. And if that's true, then
19:38
Speaker 3: that's a whole different ball of wax. But we're going
19:41
Speaker 3: to have to wait and see on that.
19:43
Speaker 4: So many unanswered questions. Congresswoman Ilhan Omar is an outspoken.
19:50
Speaker 4: critic of president trump and has been the target of
19:53
Speaker 4: his attacks for years trump has even accused the somalia-born
19:58
Speaker 4: congresswoman of.
19:59
Speaker 2: Crimes when you look at the minnesota scan uh A
20:04
Speaker 2: lot of it has to do with Somalia. Nobody's calling
20:07
Speaker 2: out anybody, but a lot of it has to do,
20:08
Speaker 2: but it's Somalia and plenty of others. And I believe
20:12
Speaker 2: the governor is complicit. I believe Ilhan Omar is complicit.
20:20
Speaker 4: Trump has called her crooked and repeatedly suggested she should
20:24
Speaker 4: leave the U.S. But today, there was a startling escalation
20:28
Speaker 4: in those attacks as federal agents searched her home in
20:32
Speaker 4: the final weeks of her re-election bid. The congresswoman has
20:36
Speaker 4: repeatedly denied allegations of wrongdoing, calling them false and politically motivated.
20:42
Speaker 4: I've been talking to immigration law expert Leon Fresco of
20:46
Speaker 4: Holland & Knight. So Leon, the DHS secretary cited an
20:50
Speaker 4: ongoing investigation last month that he suggested was examining potential
20:56
Speaker 4: fraud on her family's immigration paperwork. But this is a
21:01
Speaker 4: real escalation to execute a search warrant on her house
21:05
Speaker 4: just 22 days before the election.
21:08
Speaker 3: Yeah, it is certainly unconventional in many, many ways. First,
21:12
Speaker 3: you have the election issue, not the immigration issue, which
21:15
Speaker 3: is can you actually do something like this within 60
21:18
Speaker 3: days of an election? That used to be DOJ's longstanding,
21:22
Speaker 3: although non-binding practice, which was to avoid overt investigative steps
21:27
Speaker 3: that could affect an election. Now, having said that, it
21:30
Speaker 3: wasn't that Ilhan Omar necessarily was in a competitive election,
21:34
Speaker 3: and maybe they have some really compelling reason that they
21:37
Speaker 3: need to do this immediately, but that is certainly odd.
21:41
Speaker 3: Then the next question becomes, what are they looking for?
21:44
Speaker 3: Because if they're looking for claims related to the supposed
21:50
Speaker 3: sham marriage that she might have had with someone that
21:53
Speaker 3: may or may not have been her brother, that wouldn't
21:55
Speaker 3: actually affect her citizenship because that happened after she became
21:59
Speaker 3: a citizen. She became a citizen at age 17. And
22:02
Speaker 3: if they're looking for, instead of that, information that her
22:06
Speaker 3: father lied on his citizenship application, which meant that he
22:11
Speaker 3: couldn't get citizenship and that she couldn't derivatively become a
22:15
Speaker 3: citizen as a result of her father's citizenship application. Well,
22:19
Speaker 3: the problem there is the father is dead now, and
22:23
Speaker 3: there's going to be massive constitutional litigation about whether the
22:27
Speaker 3: mens rea is there for a child who became a
22:31
Speaker 3: citizen when there's a deceased father, and whether, A, was
22:35
Speaker 3: there any mens rea that you can punish the daughter with,
22:38
Speaker 3: but also, does it violate the due process clause because
22:41
Speaker 3: Here's a person who didn't make any misrepresentation and 30
22:45
Speaker 3: years later you're trying to denaturalize them. Will there be
22:49
Speaker 3: some constitutional limits about what you can do there to
22:53
Speaker 3: strip someone of citizenship once their parent is dead and
22:57
Speaker 3: when the misrepresentation was only made by the parent and
23:00
Speaker 3: not them? So all of that will need to be tested.
23:03
Speaker 3: There are no precedents on any of that. So we
23:05
Speaker 3: will have to see. But I don't know if there's
23:08
Speaker 3: an actual crime. Any crime would seem to me to
23:11
Speaker 3: be something where it would probably be barred by the
23:15
Speaker 3: statute of limitations because all of these things happened far
23:18
Speaker 3: more than five years ago and all of these crimes
23:21
Speaker 3: are longer than five years ago, unless they say she
23:24
Speaker 3: gave some false statement recently to somebody. But other than that,
23:28
Speaker 3: I don't know. So it will be very, very interesting
23:31
Speaker 3: to see once there's an actual piece of paper, what
23:35
Speaker 3: is the actual piece of paper say about what she
23:38
Speaker 3: actually did wrong?
23:40
Speaker 4: The search warrant lists of potential immigration crimes, including false
23:45
Speaker 4: statements and fraud in immigration paperwork, as well as a
23:49
Speaker 4: general conspiracy charge, according to the New York Times. It
23:53
Speaker 4: seems like the potential immigration paperwork that they're talking about
23:58
Speaker 4: is the paperwork that her father submitted when she was 17.
24:02
Speaker 3: Right. Right, and that's the question that's not litigated that
24:06
Speaker 3: we're going to need to figure out is if the father,
24:09
Speaker 3: one of the versions of this story is the father
24:10
Speaker 3: lied about his name, and another is that the father
24:13
Speaker 3: lied about being a refugee. But in either case, the
24:17
Speaker 3: father is dead now, and he's been dead for a
24:18
Speaker 3: long time, and she became a citizen in 2000, so
24:21
Speaker 3: that was 26 years ago at age 17. And so
24:26
Speaker 3: the question is going to be whether there are some
24:29
Speaker 3: constitutional constraints that upon denaturalizing someone who didn't make any
24:34
Speaker 3: misrepresentations on their own, who didn't have any mens rea
24:37
Speaker 3: to make any misrepresentations, but you're still doing it on
24:41
Speaker 3: the basis of what their father did. And so all
24:45
Speaker 3: of that's going to be very interesting to litigate, and
24:50
Speaker 3: I think they will have to litigate it unless they
24:52
Speaker 3: have something completely different that we just.
24:54
Speaker 1: Don't know about.
24:55
Speaker 4: Leon, can you have an immigration crime without intent?
24:59
Speaker 3: I mean, the problem is on these naturalization forms, you
25:02
Speaker 3: have to make a knowing fraudulent misstatement. And so they're
25:06
Speaker 3: going to have to say that the father did that
25:08
Speaker 3: and the father is dead. So they're going to have
25:10
Speaker 3: to have some very sound documentary proof about what the
25:14
Speaker 3: father's intent was, because her intent is irrelevant. And she
25:17
Speaker 3: was just a derivative applicant, meaning she was riding on
25:21
Speaker 3: the coattails of her father. And so I don't know
25:24
Speaker 3: if it's going to be that or they're going to
25:26
Speaker 3: have something completely different that we're just not aware about
25:29
Speaker 3: at this time.
25:30
Speaker 4: Have you ever seen someone's U.S. citizenship taken away because
25:34
Speaker 4: of lies? by another person?
25:37
Speaker 3: I've never seen it in a case where the actual
25:42
Speaker 3: primary person is dead. I've never seen a naturalization go
25:47
Speaker 3: after the derivative of the primary person as the main
25:51
Speaker 3: person that the denaturalization is going after. I have seen
25:55
Speaker 3: cases where you want to denaturalize some very evil person,
26:00
Speaker 3: and yes, they have relatives that then unfortunately get swept
26:04
Speaker 3: into the denaturalization, so they have to leave too. But
26:08
Speaker 3: they're not the target of this. They're just the derivatives
26:13
Speaker 3: of this. But this is completely different because the applicant
26:16
Speaker 3: themselves is dead now. And so they're not the subject
26:22
Speaker 3: of denaturalization. You'd be saying only Omar, Ilhan Omar, is
26:26
Speaker 3: the subject, but you're trying to prove a case against
26:28
Speaker 3: her dead father. And that I've never seen before. And
26:31
Speaker 3: there's going to be a lot of due law that's
26:37
Speaker 3: established there about whether there are any constitutional constraints preventing
26:41
Speaker 3: the government from doing this.
26:43
Speaker 4: They've been deliberately going after her, obviously. Trump has been
26:46
Speaker 4: talking about going after her for so long. So can
26:50
Speaker 4: you raise in an immigration case, a case about immigration crimes,
26:54
Speaker 4: that this is a targeted prosecution.
26:58
Speaker 2: Sure.
26:58
Speaker 3: You can always raise that in any context and ask
27:01
Speaker 3: for a dismissal, and that's always at the discretion of
27:05
Speaker 3: the district court judge, although the appellate court can say
27:08
Speaker 3: that the district court judge abused their discretion by finding
27:11
Speaker 3: that to be a politically motivated charge. But at the
27:15
Speaker 3: end of the day, what's really going to matter is,
27:18
Speaker 3: I think if you were a judge and you were
27:20
Speaker 3: predisposed to grant a case like that, it'd be easier
27:23
Speaker 3: to just say, that the misrepresentation was not material, whichever
27:27
Speaker 3: one that the father did in that situation. But I
27:31
Speaker 3: don't know. In the end, we're going to have to
27:33
Speaker 3: wait and see the paperwork and see what is the
27:35
Speaker 3: material misrepresentation that they claim existed at the time of
27:39
Speaker 3: the father's citizenship application because she wouldn't have made any
27:43
Speaker 3: representations of any kind because she was just riding along
27:47
Speaker 3: as a minor who was a derivative applicant on her
27:50
Speaker 3: father's citizenship.
27:52
Speaker 4: Are there allegations that she wasn't really 17 at the time?
27:56
Speaker 3: Well, that may be also. And if that's true, then
27:59
Speaker 3: that's a whole different ball of wax. But we're going
28:01
Speaker 3: to have to wait and see on that.
28:04
Speaker 4: So many unanswered questions. Last Friday, an impassioned New York
28:09
Speaker 4: City mayor, Zoram Amdani, called for ICE to leave the
28:14
Speaker 4: city after a man was shot seven times by ICE
28:18
Speaker 4: agents dressed in construction vests. while he was in his
28:21
Speaker 4: car with his five-year-old son in the back seat.
28:25
Speaker 6: We know that ICE is rotten to its core. Today's
28:29
Speaker 6: shooting is only further devastating confirmation of what we have
28:33
Speaker 6: long known, which is that ICE operates with impunity, that
28:36
Speaker 6: they sow chaos and terror across our country, that they
28:40
Speaker 6: have killed far more of our neighbors than they could
28:43
Speaker 6: ever have claimed to save.
28:44
Speaker 4: Once again, ICE claimed, as it has on previous occasions,
28:49
Speaker 4: that its officers felt in danger. And DHS Secretary Mark
28:54
Speaker 4: Wayne Mullen criticized the mayor.
28:56
Speaker 1: He said he wants to abolish ICE.
29:00
Speaker 5: Well, Mayor, if you abolish ICE, who's going to take
29:02
Speaker 5: the criminals off the streets of your own town?
29:05
Speaker 3: Who's going to take the murderers and thieves and the gangbangers?
29:08
Speaker 4: The officers were wearing body cameras, but DHS has not
29:12
Speaker 4: released that video. The shooting was the latest violent encounter
29:16
Speaker 4: with ICE officers during President Trump's nationwide immigration crackdown. I've
29:22
Speaker 4: been talking to immigration law expert Leon Fresco of Holland & Knight.
29:26
Speaker 4: Leon Mamdani said the city's going to investigate the shooting,
29:31
Speaker 4: reviewing the entire 24-hour period, including the ICE shooting, the
29:35
Speaker 4: police response, the protests, and ICE's use of a privately
29:41
Speaker 4: owned parking lot as a staging area. Can the city
29:44
Speaker 4: really investigate this without the information from ICE?
29:48
Speaker 3: Well, that's the problem is this is going to be
29:51
Speaker 3: really more of an administrative investigation, not a prosecutorial investigation.
29:57
Speaker 3: And so, as you said, they're going to be looking
30:00
Speaker 3: at ICE's conduct in the operation, ICE's use of a
30:03
Speaker 3: privately owned parking lot as a staging area. And by
30:07
Speaker 3: the way, just for some of your listeners who aren't
30:10
Speaker 3: familiar with this, this is a shooting that happened on Thursday,
30:14
Speaker 3: October 8th in New York City, where a Dominican national, again,
30:18
Speaker 3: in a car. A lot of these ICE incidents happen
30:21
Speaker 3: in cars. where people are in a car and ICE
30:24
Speaker 3: tried to block the individual so they could arrest the individual.
30:28
Speaker 3: And unclear exactly, but the individual basically freaks out when
30:33
Speaker 3: they see that ICE is there and it leads to
30:36
Speaker 3: ICE shooting into the car. And so there was a
30:39
Speaker 3: five-year-old child in the car and the five-year-old was not injured,
30:43
Speaker 3: although their whereabouts were not known for a little while.
30:47
Speaker 3: And the adult was injured, the person who ICE was
30:51
Speaker 3: trying to apprehend. And so there's lots of questions about
30:53
Speaker 3: whether ICE needed to do that. Was there a warrant,
30:57
Speaker 3: et cetera? And so this is the investigation that Mamdani
31:00
Speaker 3: would be looking into is all of those areas. You know,
31:04
Speaker 3: should there be larger sanctuary laws in staging areas and
31:09
Speaker 3: in hospital access and in the New York Police Department
31:12
Speaker 3: and ICE contact? And so all of those things are
31:15
Speaker 3: being investigated. At the same time, the Bronx District Attorney
31:18
Speaker 3: has actually opened A criminal investigation into the agents, which
31:23
Speaker 3: the attorney general of New York, Letitia James, says she
31:27
Speaker 3: supports it. And so the way that would work is
31:31
Speaker 3: let's say they get prosecuted under assault in the first
31:35
Speaker 3: or second degree or reckless endangerment or something like that. Well,
31:40
Speaker 3: what happened is the agent would then have the chance
31:42
Speaker 3: to remove the case to federal court and under the
31:46
Speaker 3: Supremacy Clause, say, and we've seen this in other times
31:49
Speaker 3: we've talked about ICE, that what they were performing was
31:52
Speaker 3: necessary and proper as part of their duty. And unless
31:56
Speaker 3: basically the prosecutors could show that this was an out
32:00
Speaker 3: and about cold blooded murder, nothing is going to happen
32:03
Speaker 3: to the agent in that situation.
32:05
Speaker 4: We've talked so many times about ICE agents shooting into cars,
32:10
Speaker 4: and almost all the deaths we see are because they're
32:13
Speaker 4: shooting into cars. And once again, they said that the
32:16
Speaker 4: officers feared for their safety because that's the only time
32:20
Speaker 4: that ICE or police or agents can fire into a car.
32:26
Speaker 4: They're supposed to step aside if they're not in danger,
32:29
Speaker 4: and they're obviously not doing that. If ICE wanted to
32:33
Speaker 4: stop these shootings by its officers, couldn't they just say
32:37
Speaker 4: no more arrests of people while they're in a car?
32:41
Speaker 5: Right.
32:41
Speaker 3: I mean, the problem is it's exactly what we've talked
32:44
Speaker 3: about in the past, which is there's an actuarial component
32:47
Speaker 3: to this. Not every arrest that's happening in a car
32:50
Speaker 3: is leading to a shooting, but it is certain to
32:52
Speaker 3: be the case that some number of people that you
32:55
Speaker 3: apprehend when they're in their car are going to take
32:58
Speaker 3: the prospect of being sent to Eritrea or Somaliland or
33:04
Speaker 3: who knows where else to such a nervous extent that
33:08
Speaker 3: they will not know what to do in their car,
33:10
Speaker 3: and the ICE agents who are not trained police officers
33:13
Speaker 3: will also not know what to do. And so that's
33:16
Speaker 3: why you see this percentage, whether it, let's say, be 1%,
33:19
Speaker 3: or even less than 1% of these interactions, it's still
33:24
Speaker 3: often enough that you see them on a weekly or
33:28
Speaker 3: monthly basis in the news, because that's what's going to
33:31
Speaker 3: keep happening if they keep doing these apprehensions in cars. Now,
33:35
Speaker 3: People may say, well, where else are you supposed to
33:37
Speaker 3: apprehend people? The house is also dangerous. The work site
33:41
Speaker 3: then creates a drama level for people in the work site.
33:45
Speaker 3: All of these points are true, which is that immigration
33:47
Speaker 3: enforcement is very messy and very difficult. There's no doubt
33:51
Speaker 3: about it. But it just seems that this car situation
33:53
Speaker 3: has a unique problem in that the person is literally
33:57
Speaker 3: inside the conveyance that allows them to become a fugitive.
34:01
Speaker 3: And so that's why you're going to see that in
34:03
Speaker 3: a much larger way than in any other type of apprehension.
34:07
Speaker 4: New York City Mayor Mamdani said there's no active warrant
34:12
Speaker 4: for this man's arrest. DHS has said he had an
34:15
Speaker 4: immigration detainer. What does that do?
34:18
Speaker 3: Here's the problem. An immigration detainer is nothing. What that
34:20
Speaker 3: means is that is a signal or a piece of
34:24
Speaker 3: paper that ICE sends to states and local prisons and
34:28
Speaker 3: jails where they say, if you come into contact with
34:32
Speaker 3: Joe Smith, make sure that you detain them. But that's
34:35
Speaker 3: not a warrant. A warrant has to be issued by
34:38
Speaker 3: a judge and has to be on a piece of
34:40
Speaker 3: paper that says you're allowed to go and find this person,
34:44
Speaker 3: whether it's in their house or their car. And theoretically,
34:47
Speaker 3: you're not supposed to arrest people in their car unless
34:52
Speaker 3: the person is likely to escape before a warrant can
34:55
Speaker 3: be obtained. You need a warrant to do this. And
34:58
Speaker 3: so this is why there's this investigation about why ICE
35:01
Speaker 3: would have done this in this situation when they did
35:04
Speaker 3: not have a warrant.
35:05
Speaker 4: And apparently the officers were wearing body cams, but they
35:11
Speaker 4: haven't released the body cam footage. And the DHS secretary
35:15
Speaker 4: said they'll do that probably after FBI and Homeland Security
35:21
Speaker 4: investigations conclude. I mean, that to me is suspicious. If
35:25
Speaker 4: it shows what they say, why not release it?
35:28
Speaker 2: Right.
35:29
Speaker 3: The problem, well, two things. One, it's a very recent,
35:32
Speaker 3: so one or two months ago, that the ICE agents
35:35
Speaker 3: have been fully mandated to wear these body cameras because
35:39
Speaker 3: that was something that Secretary Mullen really said, okay, we're
35:43
Speaker 3: going to do this. We're going to make everybody wear
35:44
Speaker 3: body cameras. But the point is, obviously, if you're going
35:47
Speaker 3: to have them wear the body cameras, then the point
35:50
Speaker 3: of this is to use that to de-escalate the situation.
35:54
Speaker 3: And so if you're saying we're not going to release
35:56
Speaker 3: something for a year, let's say... while the investigation is happening,
36:01
Speaker 3: then what you're really saying is that the body camera
36:03
Speaker 3: is not going to serve that purpose. It's only essentially
36:06
Speaker 3: going to serve the purpose of aiding in an investigation,
36:10
Speaker 3: but it's not going to serve the purpose of reducing
36:14
Speaker 3: public fervor about specific event that happened. That would only
36:17
Speaker 3: happen if you had a routine policy of saying, fine,
36:20
Speaker 3: we'll release all body camera footage that we have within
36:24
Speaker 3: 24 hours or 48 hours. Now, I do think it
36:26
Speaker 3: is critical that that body camera footage be released in
36:32
Speaker 3: a way where people can understand because obviously they're going
36:35
Speaker 3: to be different officers and they're going to be facing
36:38
Speaker 3: in different locations. And so however you release that video,
36:41
Speaker 3: it's not always objective. There's ways to release video that
36:45
Speaker 3: can tell one story or another. So you have to
36:47
Speaker 3: come up with protocols to release it in a way
36:50
Speaker 3: where it's as neutral as possible. But other than that,
36:54
Speaker 3: I agree that if you're not releasing it, it doesn't
36:56
Speaker 3: serve the purpose that you're hoping it would serve.
36:59
Speaker 4: So now let's turn to the denaturalization efforts by the
37:04
Speaker 4: Justice Department. This month, it announced what it called the
37:08
Speaker 4: largest denaturalization effort in modern history. So this is where
37:13
Speaker 4: the Justice Department is trying to revoke the citizenship of
37:17
Speaker 4: people who came here from abroad and but became U.S.
37:21
Speaker 6: Citizens.
37:22
Speaker 4: So they've announced that they've filed denaturalization petitions against 40
37:27
Speaker 4: individuals for a range of offenses. More than half the
37:32
Speaker 4: cases involved immigration or identity fraud. Several others involve sexual offenses.
37:39
Speaker 4: So how long does this denaturalization process take?
37:43
Speaker 3: Well, it depends if you mean how long does it
37:46
Speaker 3: take to make a case or how long does one
37:49
Speaker 3: case take once filed to actually come to fruition. So
37:54
Speaker 3: to investigate one of these cases requires about six months
37:58
Speaker 3: of time where you have cooperation between the Department of
38:02
Speaker 3: Homeland Security and the Department of Justice to go through
38:05
Speaker 3: the paperwork to try to determine whether a specific representation
38:10
Speaker 3: is was affirmatively false and was material to the decision
38:15
Speaker 3: in that process. Once that's done, the Department of Justice
38:18
Speaker 3: has to draft a complaint. They have to find a
38:21
Speaker 3: local counsel in whichever local federal court is there and
38:27
Speaker 3: then get them to team up to file the denaturalization.
38:30
Speaker 3: So all of that takes time. And then once you
38:33
Speaker 3: file the case, then it takes about a year to
38:36
Speaker 3: go from beginning to end by the time you file
38:39
Speaker 3: the complaint. You have the foreign national can file an answer.
38:43
Speaker 3: Then you do motions. You have a trial if the
38:45
Speaker 3: foreign national wants to contest it. And so all of
38:49
Speaker 3: that takes time. And sometimes the Department of Justice even
38:53
Speaker 3: will send a letter to the foreign national saying, do
38:55
Speaker 3: you really want to do all of this? Or are
38:57
Speaker 3: you willing to just give up your citizenship? And sometimes
39:00
Speaker 3: they even come up with settlements where they will strip
39:03
Speaker 3: the person of citizenship, but say, well, if you consent
39:06
Speaker 3: to this, we won't actually deport you. And so there's
39:09
Speaker 3: all kinds of discussions there. But the 40 that they
39:13
Speaker 3: announced aren't 40 at one time, and they're not linked together.
39:16
Speaker 3: There just happened to be 40 cases that got filed
39:19
Speaker 3: between August 10th and October 2nd. But that's still a
39:23
Speaker 3: lot larger than in an average year. You might have
39:26
Speaker 3: had 25 people who were denaturalized the entire year, and
39:29
Speaker 3: here you're... have 40 in less than two months.
39:33
Speaker 4: A great conversation as always, Leon. Thanks so much. That's
39:36
Speaker 4: Leon Fresco of Holland and Knight. And that's it for
39:40
Speaker 4: this edition of the Bloomberg Law Show. Remember, you can
39:42
Speaker 4: always get the latest legal news on our Bloomberg Law Podcast.
39:46
Speaker 4: You can find them on Apple Podcasts, Spotify, and at
39:49
Speaker 4: www.bloomberg.com slash podcast slash law. And remember to tune into
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Speaker 4: the Bloomberg Law Show every weeknight at 10 p.m. Wall
39:58
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