Latest / Bloomberg Law / Backlash Over ICE Tactics in Minnesota

Transcript

Backlash Over ICE Tactics in Minnesota · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grosseo from Bloomberg Radio.
0:08
Speaker 2: I don't think it's a pullback. It's a little bit
0:10
Speaker 2: of a change.
0:11
Speaker 3: Everybody in this room that has a business, you know,
0:13
Speaker 3: you make little changes. You know.
0:14
Speaker 2: Bavino is very good, but he's a pretty.
0:17
Speaker 3: Out there kind of a guy.
0:18
Speaker 2: And in some cases that's good.
0:19
Speaker 3: Maybe it wasn't good here.
0:21
Speaker 1: That was President Trump on Fox saying they're de escalating
0:25
Speaker 1: in Minnesota rather than enforcing a pullback. Trump is shuffling
0:29
Speaker 1: the lieutenants in charge of his immigration crackdown in Minneapolis
0:34
Speaker 1: after a second person was killed by a federal officer
0:38
Speaker 1: in a matter of weeks. He's dispatched Borderzar Tom Homan
0:42
Speaker 1: to the state to replace Border Patrol Chief Greg Bavino,
0:46
Speaker 1: who'd been the face of the aggressive, almost militarized operation.
0:51
Speaker 1: My guest is Christy Lopez, a professor at Georgetown Law.
0:55
Speaker 1: She served as the Deputy chief in the Special Litigation
0:58
Speaker 1: Section of the Civil Rights Division at the Justice Department
1:02
Speaker 1: and led the pattern or practice investigations of police departments.
1:06
Speaker 1: I want to get your general impression of what's been
1:09
Speaker 1: happening in Minnesota. The tactics that have been used by
1:13
Speaker 1: immigration agents. You have the shooting deaths of two people
1:17
Speaker 1: by ICE officers within weeks of each other. And we've
1:22
Speaker 1: seen all these videos showing aggressive tactics by officers ice agents,
1:29
Speaker 1: throwing chemical agents at not even a crowd, at a
1:32
Speaker 1: few people, shoving people who are trying to film them.
1:36
Speaker 1: I saw one video where a man was already on
1:39
Speaker 1: the ground, subdued and an ICE officer still sprayed a
1:44
Speaker 1: yellow chemical into his face.
1:47
Speaker 3: This is a law enforcement agency that is completely out
1:51
Speaker 3: of control. I don't say that lightly. I have just
1:54
Speaker 3: seen this happen in other places. You know, when I
1:57
Speaker 3: was at the Department of Justice Civil Rights Division, we
1:59
Speaker 3: would invest gate law enforcement agencies. There were local agencies
2:02
Speaker 3: that were sometimes out of control, and they acted just
2:06
Speaker 3: like this one for all the same reasons. It's just
2:08
Speaker 3: that what's so disturbing about this. I mean, part of
2:11
Speaker 3: what is disturbing about this to many peoples, and it's
2:13
Speaker 3: the federal government. Part of what's disturbing about it is
2:16
Speaker 3: that this is a nationwide you know, they have nationwide
2:19
Speaker 3: enforcement of authority, and so it's been most pronounced in Minneapolis.
2:23
Speaker 3: That's certainly not the only place where they had been
2:26
Speaker 3: shooting people and using excessive force, lying about what they're doing.
2:29
Speaker 3: And so when you have a law enforcement agency that's
2:32
Speaker 3: out of control, that's frightening on a couple of levels.
2:36
Speaker 3: One is just people our right to be concerned about
2:38
Speaker 3: their personal safety, but it's also a real threat to democracy.
2:42
Speaker 3: So I think it's hard to overstate how problematic this is.
2:46
Speaker 3: Problematic is two weak a word, right, It's really hard
2:49
Speaker 3: to overstate how dangerous what is happening is.
2:54
Speaker 1: Along those lines, Alex Pretty was the fifth person to
2:58
Speaker 1: be shot and killed by federal immigration officers since Trump
3:02
Speaker 1: launched his immigration crackdown in Los Angeles last June, and
3:07
Speaker 1: at least nineteen times federal immigration agents have opened fire
3:12
Speaker 1: on civilians. Most of those incidents involve agents firing at
3:17
Speaker 1: drivers during enforcement stops. None of the officers has faced
3:22
Speaker 1: criminal charges, and the administration hasn't announced any internal disciplinary
3:28
Speaker 1: measures against them. Is this very unusual? What would normally happen?
3:33
Speaker 3: So I'm hesitating about usual and normal for two reasons.
3:36
Speaker 3: One is, with eighteen thousand law enforcement agencies, it's hard
3:40
Speaker 3: to say what's normal or usual in any given agency
3:42
Speaker 3: because there's a wide spectrum of what happens. And even
3:45
Speaker 3: when you talk about the federal law enforcement agencies, even
3:49
Speaker 3: when you focus on immigration enforcement, CBPHSI, ICE, it's hard
3:53
Speaker 3: to know how abnormal this is. I will say it
3:56
Speaker 3: is completely unacceptable, and it is the reason that we
4:01
Speaker 3: see this law enforcement agency being out of control is
4:03
Speaker 3: because there is not any accountability either external right, There's
4:07
Speaker 3: no investigation that's being done so that there can be
4:09
Speaker 3: criminal prosecutions. There's very little accountability through civil litigation because
4:14
Speaker 3: of how difficult the Supreme Court has made the law
4:16
Speaker 3: in this area and the internal accountability mechanisms, which are
4:20
Speaker 3: the most effective, generally speaking, in the most real time,
4:23
Speaker 3: you just say that people don't do this, You give
4:26
Speaker 3: them a day off if they start to do something wrong,
4:28
Speaker 3: and you fire them if they keep doing it. That
4:30
Speaker 3: sort of accountability is not happening. Now. That's long been
4:34
Speaker 3: a problem with immigration enforcement, in part because of the line,
4:38
Speaker 3: and we've been drawing it and discussing these cases between
4:41
Speaker 3: what implicitly what people think is okay for law enforcement
4:44
Speaker 3: to do to non citizens versus citizens, and a lot
4:47
Speaker 3: of what immigration enforcement has been doing in this country
4:50
Speaker 3: has been done to non citizens, oftentimes at the border
4:54
Speaker 3: and they've essentially been given a pass, and so it's
4:56
Speaker 3: really important for a number of reasons to stop making
4:58
Speaker 3: a distinction between how between non citizens and citizens. And
5:02
Speaker 3: one of the reasons is that that distinction is why
5:05
Speaker 3: they've been allowed to grow into an agency that uses
5:08
Speaker 3: excessive force with impunity and lies about it with impunity.
5:11
Speaker 3: So I think it's important for people to recognize that
5:14
Speaker 3: the way that these federal immigration enforcement agencies are working
5:18
Speaker 3: now did not come out of nowhere. It has a
5:20
Speaker 3: long history and being allowed to behave this way in
5:24
Speaker 3: places that were not as open to the public and
5:27
Speaker 3: against people that did not have as much sympathy as
5:31
Speaker 3: protesters do now.
5:32
Speaker 1: As far as investigations, it seems as if the federal
5:37
Speaker 1: government is doing an investigation on the latest killing of
5:41
Speaker 1: Alex Pretty. I'm not sure about the Renee Good shooting.
5:45
Speaker 1: Whether they're actually doing an investigation on the federal level, it's.
5:49
Speaker 3: A little unclear, and I think it's probably changing. It's
5:52
Speaker 3: robe fairly fluid, given that they're getting much more pushback
5:55
Speaker 3: than they expected. But from what I have read, it
5:58
Speaker 3: appears that they're doing what is called the use of
6:00
Speaker 3: force review, which is what you should do anytime there's
6:04
Speaker 3: a serious use of force, and what historically DHS law
6:08
Speaker 3: enforcement agencies have done, right any use of force, not
6:11
Speaker 3: just shootings, but you know, strikes to the head for example,
6:14
Speaker 3: anything that's a serious use of force. You would do
6:16
Speaker 3: a review to determine whether there are any policy violations
6:20
Speaker 3: or whether there were any maybe training problems or even
6:23
Speaker 3: equipment problems that were revealed by the incident. And that's
6:26
Speaker 3: something that should happen regardless of whether there's a complaint,
6:28
Speaker 3: regardless of whether there's you know, any media about it.
6:31
Speaker 3: It's an internal often called an administrative investigation. It sounds
6:35
Speaker 3: like they're maybe doing that now. I think people would
6:38
Speaker 3: be correct to be concerned about the robustness of that
6:42
Speaker 3: investigation and the credibility of that investigation, given the demonstrably
6:47
Speaker 3: false prejudicial statements that leaders of that organization have already made.
6:53
Speaker 3: And so what often happens when law enforcement agencies have
6:56
Speaker 3: those problems with credibility or just competency, is you will
6:59
Speaker 3: have an outside agency conduct that administrative investigation. So that's
7:03
Speaker 3: what I think we should all be asking for as
7:05
Speaker 3: an independent agency for the federal la enforcement agencies to
7:08
Speaker 3: open up provide all the evidence to an independent entity
7:13
Speaker 3: to be able to conduct that administrative investigation. In the past,
7:16
Speaker 3: the Offices of Inspector General, Federal Offices of Inspector General
7:20
Speaker 3: would have been a good candidate for that. They're rather
7:23
Speaker 3: compromised because of the way that their independence has been
7:27
Speaker 3: threatened by President Trump, and so I'm not sure that's
7:30
Speaker 3: an adequate stand in here. In addition to that administrative investigation,
7:34
Speaker 3: there should be a federal criminal investigation, and specifically, there
7:39
Speaker 3: should be an investigation to determine whether there were criminal
7:41
Speaker 3: violations of these individuals' federal civil rights. We know from
7:45
Speaker 3: the Good killing they decided not to do that, and
7:48
Speaker 3: my understanding is that attorneys left the Civil Rights Division
7:51
Speaker 3: because of that decision. I don't know whether they're rethinking
7:54
Speaker 3: that they could. People should be pushing them to rethink that.
7:57
Speaker 3: And the same here with Predi's killing. They could be
8:01
Speaker 3: doing a criminal investigation to see whether his civil rights
8:04
Speaker 3: were violated, and there's been no indications that I know
8:06
Speaker 3: of that they are, but that could change.
8:08
Speaker 1: So let me ask you this, because there's been a
8:10
Speaker 1: lot of talk about, you know, immunity with the Vice
8:13
Speaker 1: President coming out last week about Renee goods shooting and
8:16
Speaker 1: saying absolute immunity, then backing off a little bit, what
8:19
Speaker 1: kind of criminal charges could be brought against a federal officer.
8:24
Speaker 3: So there's not a large body of federal criminal law actually,
8:28
Speaker 3: so oftentimes the charge, the only charges that are available
8:32
Speaker 3: at the federal level are charges for violating individuals civil rights.
8:38
Speaker 3: So that is definitely something that the federal government could do.
8:41
Speaker 3: There are also oftentimes when law enforcement agents behave in
8:46
Speaker 3: this way, they are violating state criminal law. So for example,
8:49
Speaker 3: in the Derek Chauvin case where Derek Chauvin killed George Floyd,
8:53
Speaker 3: he was found under state law to have murdered George Floyd,
8:56
Speaker 3: the state crime of murder. That is much more complicated
9:00
Speaker 3: when the state is trying to prosecute not a state
9:03
Speaker 3: or local law enforcement officer, but a federal law enforcement officer.
9:07
Speaker 3: There is a large body of law that makes it
9:10
Speaker 3: more complicated and more difficult to prosecute federal law enforcement
9:15
Speaker 3: officers criminally. For state prosecutors to prosecute federal law enforcement
9:20
Speaker 3: officers criminally, that said, it's not impossible, and it is
9:25
Speaker 3: something that the state appears to be pursuing here, and
9:28
Speaker 3: they have legal grounds to do so.
9:30
Speaker 1: The state is sort of in an uphill battle here because,
9:34
Speaker 1: you know, the federal government has the initial evidence from
9:37
Speaker 1: the both scenes and apparently the local officials have said
9:42
Speaker 1: that federal officials are refusing to honor a search warrant
9:45
Speaker 1: that they had to get signed by a judge. So
9:49
Speaker 1: the federal government is withholding the information here.
9:53
Speaker 3: Yes, the federal government is essentially obstructing a criminal investigation,
9:58
Speaker 3: and that is highly unusual. Normally, federal and state governments
10:02
Speaker 3: will work together and try to gather evidence, even in deciding,
10:06
Speaker 3: like you know, quote unquot who will go first in
10:08
Speaker 3: terms of prosecuting the individual. But that's not happening here.
10:12
Speaker 3: And that's why people are right to be concerned that
10:14
Speaker 3: what the federal government is doing here is trying to
10:16
Speaker 3: cover up what actually happened. This is not, you know,
10:19
Speaker 3: sort of normal protocol. This is them behaving very differently
10:23
Speaker 3: for reasons that appear to be they don't want anybody
10:25
Speaker 3: else looking at what actually happened. The good news is
10:27
Speaker 3: that there is a lot of evidence you can gather
10:30
Speaker 3: outside of what the federal government is refusing to turn over.
10:34
Speaker 3: We should be so grateful to the individuals who are
10:36
Speaker 3: out there filming and providing that ragging the evidence. Who
10:39
Speaker 3: are willing to testify and talk about what they saw
10:42
Speaker 3: before and after the cameras were on. That is really
10:47
Speaker 3: important information that can become evidence right once it's properly
10:51
Speaker 3: you know, vetted and confirmed. And with these facts, it
10:54
Speaker 3: seems like you could make a prosecution on that information alone.
10:57
Speaker 1: Coming up next on the Bloomberg Law Show, you this
11:00
Speaker 1: conversation with Georgetown law professor Christy Lopez. The Eighth Circuit
11:05
Speaker 1: Court of Appeals was persuaded to freeze a judge's ruling
11:09
Speaker 1: that barred retaliation against the public in Minnesota. I'm June Grosso,
11:14
Speaker 1: and you're listening to Bloomberg. I've been talking to Georgetown
11:18
Speaker 1: law professor Christy Lopez. She was the Deputy Chief in
11:21
Speaker 1: the Special Litigation Section of the Civil Rights Division at
11:25
Speaker 1: the US Department of Justice and led the pattern or
11:28
Speaker 1: practice investigations of police departments. Christy, let's turn to the
11:33
Speaker 1: courts for a moment, because not just in this case,
11:36
Speaker 1: but in many cases across the country, there have been
11:39
Speaker 1: complaints by federal judges that the Trump administration is ignoring orders,
11:46
Speaker 1: or skirting orders, or you obeying them around the edges,
11:49
Speaker 1: however you want to describe it. And so the Chief
11:52
Speaker 1: Federal Judge has demanded the acting head of Ice personally
11:57
Speaker 1: appear in court on Friday to explain repeated failures to
12:02
Speaker 1: comply with court orders. This might be a situation where
12:07
Speaker 1: the federal government might try to fight this.
12:10
Speaker 3: They could. The federal government has been very disrespectful to
12:14
Speaker 3: and defining of the federal courts. They're really relying on
12:18
Speaker 3: the federal courts a sort of deference and a sense
12:23
Speaker 3: of propriety and hoping that that will keep the federal
12:26
Speaker 3: courts from really pushing All courts, but especially federal courts
12:29
Speaker 3: have long given great difference to federal officials and you know,
12:32
Speaker 3: given them chance after chance after chance before actually coming
12:35
Speaker 3: down them holding it in contempt. They could hold people
12:37
Speaker 3: in criminal contempt, but they generally don't do this, and
12:40
Speaker 3: I think that's largely what the administration is relying on.
12:43
Speaker 3: I think they also see it as part of their
12:45
Speaker 3: brand to be sort of, you know, to be bullying
12:47
Speaker 3: the courts and to be you know, to show the
12:49
Speaker 3: powers is more effective than the rule of law. So
12:52
Speaker 3: there's that as well. But I think that what will
12:55
Speaker 3: make the difference here. I think we are all beginning
12:57
Speaker 3: to understand this, and if we didn't already, but what
12:59
Speaker 3: is going to make the difference here as public pressure.
13:02
Speaker 3: That is what's going to determine whether tod Lions shows
13:05
Speaker 3: up in court, whether the administration backs off in this
13:08
Speaker 3: area of really egregious immigration enforcement as in many other areas.
13:13
Speaker 1: In the midst of all this turmoil, the Eighth Circuit
13:16
Speaker 1: Court of Appeals was persuaded by the government to freeze
13:21
Speaker 1: a judge's ruling that barred immigration officers from retaliating against
13:26
Speaker 1: the public in Minneapolis, including detaining people who follow agents
13:31
Speaker 1: in cars. I thought it was surprising that the Eighth
13:34
Speaker 1: Circuit froze that judge's order that was intended to maintain
13:39
Speaker 1: the peace.
13:40
Speaker 3: Basically, I agree. I want to be clear, I haven't
13:43
Speaker 3: read that opinion yet, so I'm happy to check back
13:45
Speaker 3: in once I have. I agree there doesn't appear to
13:48
Speaker 3: be a strong basis, or really any basis to not
13:51
Speaker 3: allow the district Court's order to take effect. It was
13:55
Speaker 3: a very mild order. It was not anywhere near what
14:00
Speaker 3: the plaintiffs had asked for, and it does little more
14:04
Speaker 3: than say, no, you really do have to abide by
14:08
Speaker 3: the Constitution when you are policing these protests and when
14:11
Speaker 3: you are enforcing the immigration law. It's really hard to
14:14
Speaker 3: see why the eight Circuit wouldn't have allowed that order
14:18
Speaker 3: to stand.
14:19
Speaker 1: Is there another event in our history that resembles what's
14:23
Speaker 1: happening here in Minnesota?
14:25
Speaker 3: Yes, I think we've gone through a number of eras
14:27
Speaker 3: of our history that resemble what's happening here. I think
14:30
Speaker 3: in some respects. The one that comes to mind for
14:33
Speaker 3: a lot of people, and I think is an accurate comparison,
14:36
Speaker 3: is the Civil rights movement. The difference there was that
14:39
Speaker 3: in that context, in many ways, the federal government worthy
14:42
Speaker 3: protectors rather than the primary instigance of violence. It's broadly
14:47
Speaker 3: understood that the federal government could have done more to
14:50
Speaker 3: protect civil rights protesters and activists than it did, but
14:54
Speaker 3: certainly they weren't seen generally speaking, as the primary antagonists
14:58
Speaker 3: and violators of right, and here that's oddly flipped. You
15:03
Speaker 3: see the Minnesota governor sending out the National Guard. You
15:06
Speaker 3: see the local police, you know, trying to protect individuals
15:10
Speaker 3: and trying to investigate federal law enforcement who's violating people's rights.
15:14
Speaker 3: That I think is fairly unprecedented. So you've seen this
15:18
Speaker 3: dynamic before of just you know, people trying to speak
15:21
Speaker 3: out against injustice, some of the labor strikes from the
15:24
Speaker 3: late nineteenth century, early twentieth century. You've seen things like that,
15:28
Speaker 3: but I don't think we've ever seen anything like this
15:31
Speaker 3: where you have the federal government, historically the better protectors
15:36
Speaker 3: of individuals constitutional rights, being the primary violator of those rights,
15:41
Speaker 3: and state in local governments having to step in and
15:44
Speaker 3: find a way to try to protect people's rights.
15:47
Speaker 1: Yeah, I'm just wondering what the federal government is thinking
15:50
Speaker 1: when apparently the officers involved in the latest shooting were
15:55
Speaker 1: allowed to continue working, but now they've been placed on
15:59
Speaker 1: administrative life.
16:01
Speaker 3: It is common practice to put officers who are involved
16:05
Speaker 3: in shootings, you know, formally on administratively out of any
16:08
Speaker 3: public interaction during the course of the investigation, especially where
16:12
Speaker 3: there's some indication that force might have been unlawful or
16:16
Speaker 3: a violation of policy. I think the thing to understand here,
16:20
Speaker 3: and this is really important for people to understand this
16:23
Speaker 3: administration doesn't actually have a problem with how much their
16:28
Speaker 3: immigration law enforcement officers are violating people's rights, how much
16:31
Speaker 3: violence they're using the way that they are, you know,
16:35
Speaker 3: violing people's rights, you know, taking splitting apart families and
16:39
Speaker 3: sending them far away and leaving them to find their
16:41
Speaker 3: own way home, knowingly taking people who are here lawfully,
16:46
Speaker 3: sometimes who are even citizens, and just you know, we
16:49
Speaker 3: don't care. Will sometimes say the cruelty is the point,
16:52
Speaker 3: and I think that holds here as well. I think
16:54
Speaker 3: the cruelty and the violence is the point of how
16:57
Speaker 3: this enforcement is happening. A year ago, if I'd heard
17:01
Speaker 3: someone say that, I might have thought that it was
17:02
Speaker 3: hyperbolic and overly dramatic. But I think that's exactly what
17:06
Speaker 3: we're seeing. And the only reason that they are starting
17:11
Speaker 3: to hesitate a bit after this most recent killing is
17:15
Speaker 3: not because they've had a change of heart. It's because
17:18
Speaker 3: the country is demonstrating more broadly that they don't like
17:22
Speaker 3: what's going on. That is the only thing that's going
17:25
Speaker 3: to change the way they're acting, because they do not
17:27
Speaker 3: think that there's anything wrong with how they're behaving. In fact,
17:30
Speaker 3: they are intentionally allowing their agents to behave in this
17:35
Speaker 3: way because they want to instill here in people, because
17:38
Speaker 3: they want to demonstrate how powerful they are, because they
17:40
Speaker 3: want to demonstrate how they can violate the law and
17:42
Speaker 3: get away with it.
17:43
Speaker 1: Another surprising thing to me was the statements by Christinome,
17:48
Speaker 1: the DHS secretary, and Baveno that word contradicted by the
17:54
Speaker 1: video that everyone was seeing. Why say something that's demonstrably false?
18:00
Speaker 3: Yes, I think there's two schools of thought on that,
18:02
Speaker 3: and I think they could both be true in different
18:04
Speaker 3: ways and perhaps with different people. One school of thought
18:07
Speaker 3: is that they're saying things that are false about things
18:10
Speaker 3: that are on video in the hopes that the people
18:13
Speaker 3: who support them or won't ever go watch those videos, right,
18:17
Speaker 3: and so they'll never find out what actually happened. The
18:20
Speaker 3: other school of thought is that they are saying things
18:23
Speaker 3: that are false knowing that they will be shown to
18:25
Speaker 3: be false, and then able to demonstrate that they're allowed
18:29
Speaker 3: to say things that aren't true, that are demonstrably not
18:32
Speaker 3: true and get away with it anyway. It's part of
18:35
Speaker 3: their trying to make people lose hope. Right. Wow, they
18:39
Speaker 3: can do something so awful and then lie about it completely,
18:42
Speaker 3: even though we all can see that's not what happened,
18:45
Speaker 3: and nothing happens to them, nothing happens to this officer,
18:48
Speaker 3: They keep going forward and so if they're able to
18:51
Speaker 3: get away with that, then they will in fact have
18:53
Speaker 3: become more powerful. And so that's why it's so important
18:57
Speaker 3: that people are now actually pushing back, and why the
19:00
Speaker 3: only thing that's going to change this is more people
19:02
Speaker 3: pushing back.
19:02
Speaker 1: More they are demoting, or however you want to call it.
19:06
Speaker 1: They're taking Bavino off the scene and sending him back
19:09
Speaker 1: to the border, and Tom Holman is coming in. Homan
19:13
Speaker 1: supposedly has a more targeted approach than Bavino, So might
19:19
Speaker 1: we expect that we'll see less of these aggressive tactics.
19:23
Speaker 3: I wouldn't rely on that. I think Homan has if
19:27
Speaker 3: he just based on the things that he's said and
19:28
Speaker 3: done in the past, he has the exact same violent
19:31
Speaker 3: and authoritarian tendencies that Bobino did, and so they're just
19:35
Speaker 3: switching people around. Bobino is a target right now. You know,
19:39
Speaker 3: maybe that means something for the long term. It could
19:41
Speaker 3: just be a short term, you know, until things quiet down.
19:43
Speaker 3: I don't think people should feel good at all about
19:46
Speaker 3: Homan coming in. I think they should feel good that
19:48
Speaker 3: they've had some they've moved the need a little bit
19:50
Speaker 3: on making the administration do something. But the administration is
19:54
Speaker 3: going to be waiting to see whether sort of moving
19:57
Speaker 3: people around will quiet people down. And what again, People
20:01
Speaker 3: need to keep the pressure on until the actual behavior changes.
20:05
Speaker 3: And there's nothing about home and the way he thinks
20:08
Speaker 3: about these issues, the what he has done about these issues,
20:10
Speaker 3: what he has said about these issues, that said that
20:12
Speaker 3: he has a demonstrably different approach to immigration enforcement.
20:15
Speaker 1: Well, thanks so much for joining me today, Christy. That's
20:18
Speaker 1: Professor Christy Lopez of Georgetown Law. The Trump administration and
20:26
Speaker 1: the California Republican Party are asking the Supreme Court to
20:30
Speaker 1: block the state from using its new congressional map that
20:34
Speaker 1: favors Democrats during this year's midterm elections. A lower court
20:39
Speaker 1: said the new map is lawful and can be used
20:42
Speaker 1: in twenty twenty six, rejecting a bid by the administration
20:46
Speaker 1: and the California GOP to block the map on the
20:49
Speaker 1: grounds that it was racially gerrymandered. The request seeks an
20:53
Speaker 1: emergency order to block the map while the court considers
20:56
Speaker 1: a full appeal of the decision. The state of californ
21:00
Speaker 1: Ffornia has until January twenty ninth to respond. Joining me
21:04
Speaker 1: is Bloomberg Legal reporter Madelen Mecklberg Madline tell us about
21:09
Speaker 1: the California map and what happened in the lower court.
21:13
Speaker 2: So California decided to redraw its congressional maps after Texas
21:18
Speaker 2: undertook a similar effort at the request of President Trump.
21:22
Speaker 2: And the idea behind California's maps is that they are
21:26
Speaker 2: creating five new districts that will favor Democrats in an
21:30
Speaker 2: attempt to counteract the five new districts that have been
21:33
Speaker 2: added in Texas as a result of their redistricting effort. Now,
21:38
Speaker 2: the maps in California were challenged by the state's Republican
21:41
Speaker 2: Party and also by the Department of Justice. The Trump
21:44
Speaker 2: administration and a lower court said that the maps were
21:48
Speaker 2: allowed to stand for the election. They said that there's
21:51
Speaker 2: no evidence that they were racially gerrymandered, and that the
21:54
Speaker 2: effort was a purely political one and therefore the maps
21:57
Speaker 2: are valid and should be used this year.
22:00
Speaker 1: It sort of makes me laugh that the Department of
22:02
Speaker 1: Justice is challenging this when it was President Trump and
22:05
Speaker 1: the Trump administration that's been urging Republican states to redraw
22:10
Speaker 1: their maps.
22:11
Speaker 2: I think a lot of spectators who've been following this
22:14
Speaker 2: feel Similarly, it's certainly we wouldn't be here in the
22:18
Speaker 2: California case if Texas hadn't decided to redraw its maps
22:22
Speaker 2: at Trump's request. And a lot of the same issues
22:25
Speaker 2: have been presented in these cases. There's really not a
22:28
Speaker 2: lot of daylight between them, and so the arguments are
22:31
Speaker 2: really similar, and it's yes, definitely interesting to see the
22:35
Speaker 2: administration on different sides of each of these cases.
22:38
Speaker 1: What are the California Republicans saying, because I mean, I
22:42
Speaker 1: can remember California Governor Gavin Newsom having press conferences where
22:47
Speaker 1: he was urging them to, you know, we have to
22:50
Speaker 1: do this in California because they did it in Texas.
22:53
Speaker 1: What are they pointing to as evidence that it was
22:57
Speaker 1: not done for political purposes?
23:00
Speaker 2: Right? I think one of the main arguments that we've
23:02
Speaker 2: seen from them in filings is that race has a
23:06
Speaker 2: proxy here and that they're using this political argument in
23:11
Speaker 2: order to actually do racial gerrymandering. They cited testimony from
23:17
Speaker 2: one of the consultant map makers that the state used
23:20
Speaker 2: when they were redrawing this redrawing these congressional districts, and
23:25
Speaker 2: that individual said made reference to ensuring that there were
23:28
Speaker 2: certain Latino districts that were bolstered in order to make
23:31
Speaker 2: them more effective. And so what the GOP party in
23:35
Speaker 2: California and the DOJ are arguing is that they are
23:39
Speaker 2: using this guise of political retribution to redraw the maps
23:44
Speaker 2: in order to actually racially gerrymander.
23:47
Speaker 1: The Supreme Court cleared the way for Texas to use
23:50
Speaker 1: those Republican drawn maps, and actually there was some mention
23:54
Speaker 1: of California in that decision.
23:57
Speaker 2: Right, So the way that redistricting came work is that
24:01
Speaker 2: they're decided by a three judge panel at the lower
24:04
Speaker 2: court level, and then there's no the appellate process just
24:07
Speaker 2: skips over the circuit court and goes right to the
24:10
Speaker 2: Supreme Court. And so unlike traditional cases that come before
24:14
Speaker 2: the High Court, there's no cert petition here. The Supreme
24:17
Speaker 2: Court really has to answer to request for emergency action.
24:21
Speaker 2: And so that's what we saw in the Texas case.
24:24
Speaker 2: They said in their ruling, as you mentioned, they said
24:27
Speaker 2: that it's clear that the Texas maps were drawn, they
24:30
Speaker 2: were politically motivated, there was no evidence that there was
24:33
Speaker 2: racial gerrymandering, and they made mention to California as a
24:37
Speaker 2: comparable effort. They said, just like in California, where the
24:40
Speaker 2: districts have been redrawn with politics in mind, and so
24:45
Speaker 2: we've heard the Supreme Court weigh in on this before.
24:47
Speaker 2: I think I don't think that we're expecting a lot
24:51
Speaker 2: of surprise when we get a ruling from them. Of course,
24:53
Speaker 2: you never know. I don't want to be in the
24:55
Speaker 2: business of predicting what the Supreme Court is going to do,
24:58
Speaker 2: but basically the case is are very similar. They have
25:01
Speaker 2: acknowledged in this separate ruling that California is like Texas
25:05
Speaker 2: in that they were drawn with politics as the motivating factor.
25:09
Speaker 1: Redistricting efforts were being done with the mid term election
25:14
Speaker 1: in mind. Let's start with Texas. I've been reading that
25:18
Speaker 1: it's not a guarantee that Republican candidates would win all
25:21
Speaker 1: five of the new Texas districts, right.
25:24
Speaker 2: I think it's very early to try to say how
25:28
Speaker 2: any of these races are going to shake out in
25:30
Speaker 2: the midterms. But you're correct that the Texas maps, the
25:34
Speaker 2: idea is that they've created five congressional districts in Texas
25:38
Speaker 2: that are likely to go for Republicans. But I think
25:42
Speaker 2: kind of given the current state of play, it's very
25:45
Speaker 2: difficult to make any kind of predictions, and Texas is
25:48
Speaker 2: a very unique place. I know it's easy to put
25:51
Speaker 2: it in this red state bucket, but there's a ton
25:53
Speaker 2: of diversity, and especially when we're talking about counties that
25:56
Speaker 2: are around the border, it's not a garantee how they're
26:00
Speaker 2: going to go in the race. And so I think
26:03
Speaker 2: the bid there was that we're going to create five
26:06
Speaker 2: additional safe Republican seats in the House, which is incredibly
26:10
Speaker 2: important because at this point, Democrats need to gain just
26:14
Speaker 2: three seats in order to have control of the House,
26:17
Speaker 2: and so by having these five new Republican districts, they
26:21
Speaker 2: would really be a roadblock to Democrats' efforts to take
26:25
Speaker 2: control of the House. And that's where California comes into play,
26:29
Speaker 2: where they drafted their maps as an attempt to neutralize
26:33
Speaker 2: this effort in Texas, and they've created five Democratic seats
26:37
Speaker 2: that they expect to go safely to their party. I
26:39
Speaker 2: think it's a little more clear in California that those
26:42
Speaker 2: seats will be safely Democratic. So this could have been
26:45
Speaker 2: a miscalculation on the Republican's parts because California is set
26:50
Speaker 2: to give five more Democrats seats in Congress if the
26:53
Speaker 2: Supreme Court upholds these districts, but the same is not
26:56
Speaker 2: necessarily a guarantee in Texas for the five seats that
26:59
Speaker 2: they're seeking to create.
27:01
Speaker 1: But there are other Republican states in play now or
27:05
Speaker 1: trying to be in play. Tell us what other states
27:07
Speaker 1: are doing.
27:08
Speaker 2: That's right. There was just news earlier this month in
27:12
Speaker 2: New York, a state court judge said that the state's
27:15
Speaker 2: only Republican held congressional district needed to be redrawn because
27:19
Speaker 2: it diluted black and Latino voters, and so Democrats are
27:23
Speaker 2: now expected to pick up an additional House seat in
27:26
Speaker 2: New York. And there's also the potential for Republicans to
27:30
Speaker 2: pick up seats in Missouri and North Carolina and potentially
27:34
Speaker 2: in Ohio in Florida as well as a result of redistricting,
27:39
Speaker 2: but some of those are still up in the air.
27:40
Speaker 2: That's an issue that we're going to get to a
27:42
Speaker 2: little later this year. And then the Supreme Court is
27:45
Speaker 2: also weighing this Voting Rights Act case relating to Louisiana's
27:50
Speaker 2: congressional map, and a ruling that we get there could
27:54
Speaker 2: potentially eliminate one of the state's majority black, heavily Democratic
27:58
Speaker 2: congressional districts and could also prompt other states to take action. So,
28:03
Speaker 2: although we're in the year of the midterm election and
28:05
Speaker 2: it feels close but also very far, a lot is
28:09
Speaker 2: still on the table and in play as we're talking
28:12
Speaker 2: about how these races are going to shake out.
28:14
Speaker 1: Yeah, I'm wondering if suppose the Supreme Court doesn't come
28:18
Speaker 1: down with a decision in that case until June, if
28:22
Speaker 1: there would be enough time for the legislatures to ramp
28:25
Speaker 1: up and do more redistricting. The time seems really tight,
28:29
Speaker 1: but it is.
28:31
Speaker 2: It's tight, and it's hard to say with any certainty
28:33
Speaker 2: because this is a redistricting is the responsibility of state legislatures,
28:40
Speaker 2: and while they tend to follow similar procedures for doing that,
28:46
Speaker 2: every state is different and has slightly different rules and
28:48
Speaker 2: slightly different approaches to how they do this, and so
28:52
Speaker 2: those local rules and regulations could also factor into whether
28:55
Speaker 2: there's enough time to make anything happen by the election.
29:00
Speaker 1: Let's turn to another topic, and that's the social media
29:02
Speaker 1: addiction trial that's starting in Los Angeles, and TikTok on
29:08
Speaker 1: the eve of trial is settling.
29:12
Speaker 2: The last number we got is that there's roughly twenty
29:15
Speaker 2: five hundred people individuals, family members that are part of
29:19
Speaker 2: this bucket of personal injury cases. And so that's either
29:24
Speaker 2: individuals suing or family members of individuals suing saying they
29:29
Speaker 2: personally suffered harms because of the design of these social
29:33
Speaker 2: media platforms. And so this is a settlement with one
29:38
Speaker 2: individual plaintiff. But this plaintiff is the very first to
29:41
Speaker 2: go to trial of these thousands of cases, and she's
29:45
Speaker 2: part of this bell Weather category of cases where the
29:48
Speaker 2: outcome of these trials, whether it's through settlements or verdicts
29:52
Speaker 2: from the jury, is going to inform how the rest
29:54
Speaker 2: of these thousands of cases get resolved.
29:58
Speaker 1: But to be clear, the social media case is starting
30:02
Speaker 1: this week.
30:03
Speaker 2: That's correct. Today was jury selection in that very first trial.
30:08
Speaker 2: The plaintiff there has reached settlement agreements with snap snap
30:12
Speaker 2: first Snapchat, and with TikTok, but her claims against Meta's
30:17
Speaker 2: Facebook and Instagram and Google's YouTube are still alive and
30:21
Speaker 2: still will go before the jury unless there's some kind
30:24
Speaker 2: of a chord reached with those individual defendants as well.
30:27
Speaker 1: And of course we don't know how much was paid
30:29
Speaker 1: in the settlement.
30:30
Speaker 2: I take it no, don't the terms of the specific
30:33
Speaker 2: agreements that have not been made public at this point,
30:36
Speaker 2: but there's been a lot of analysis done. This personal
30:40
Speaker 2: injury bucket of cases is just one. There's also been
30:43
Speaker 2: lawsuits filed by school districts and by state attorneys general.
30:47
Speaker 2: And I know that a Bloomberg intelligence analyst who's been
30:50
Speaker 2: following these cases, he's estimated that there's a multi billion
30:55
Speaker 2: dollar liability here for the social media companies in terms
30:58
Speaker 2: of the potential for or settlements or payouts in trials
31:02
Speaker 2: as all of these cases move forward. But you know,
31:06
Speaker 2: that's very far down the road. We're at the very
31:08
Speaker 2: beginning of a long process here that could see that out.
31:11
Speaker 1: And this is the first time these kinds of claims
31:14
Speaker 1: are going to go before a jury. I mean, we've
31:17
Speaker 1: heard them in congressional investigations. But tell us why that
31:20
Speaker 1: makes a difference.
31:22
Speaker 2: Because so far they've been able to use Section two
31:25
Speaker 2: thirty to argue that they shouldn't be held liable for
31:28
Speaker 2: content on their platforms. But that's what's unique about these
31:32
Speaker 2: cases is the argument is about the fact that these
31:36
Speaker 2: plaintiffs believe that the social media platforms intentionally designed their
31:40
Speaker 2: products to be addictive. So it's about design features and
31:43
Speaker 2: not about content that's being produced on the website. So
31:47
Speaker 2: it's kind of a unique pathway to get them to court.
31:49
Speaker 2: And we are expecting Mark Zuckerberg to testify at some
31:53
Speaker 2: point during the trial.
31:54
Speaker 1: After all the times he's testified, he might qualify as
31:57
Speaker 1: an expert witness soon. Thanks so much, Mad. That's Bloomberg
32:01
Speaker 1: Legal reporter Madelein Mecklberg, and that's it for this edition
32:05
Speaker 1: of The Bloomberg Law Show. Remember you can always get
32:07
Speaker 1: the latest legal news on our Bloomberg Law podcasts. You
32:10
Speaker 1: can find them on Apple Podcasts, Spotify, and at www
32:15
Speaker 1: dot bloomberg dot com, slash podcast Slash Law, and remember
32:19
Speaker 1: to tune into The Bloomberg Law Show every weeknight at
32:22
Speaker 1: ten pm Wall Street Time. I'm June Grosso and you're
32:25
Speaker 1: listening to Bloomberg