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Why is Jeanine Pirro Convening A Special Grand Jury in DC? · Bloomberg Law

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Speaker 1: This is Bloomberg Law with June Grosseol from Bloomberg Radio.
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Speaker 2: About two weeks ago, President Trump made it clear that
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Speaker 2: he wasn't happy with DCUs attorney Jeanine Piro. I was
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Speaker 2: disappointed with Janine Piro, really disappointed with Janie Peiro.
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Speaker 1: She folded like an umbrella.
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Speaker 2: That disappointment was the result of Piero dropping charges against
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Speaker 2: a former olympian for vandalizing the reflecting pool. But the
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Speaker 2: DCUs attorney's office has had other high profile failures. A
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Speaker 2: grand jury refusing to indict six Democratic lawmakers who released
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Speaker 2: a video advising service members they should reject illegal orders,
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Speaker 2: a federal judge quashing a grand jury subpoena for former
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Speaker 2: Federal Reserve Chair Jerome Powell, And, of course, a trial
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Speaker 2: jury refusing to convict the man accused of throwing a
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Speaker 2: subway sandwich at an ice officer of even a misdemeanor.
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Speaker 2: So reporting from The Washington Post that Piero has convened
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Speaker 2: a rare special grand jury has raised eyebrows over her intentions.
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Speaker 2: Joining me is Barbara McQuaid, a professor at the University
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Speaker 2: of Michigan Law School and the former US attorney for
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Speaker 2: the Eastern District of Michigan BARB. How unusual is it
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Speaker 2: for a US Attorney's office to convene a special grand jury.
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Speaker 3: In many districts, it's not unusual at all. In fact,
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Speaker 3: in districts with a population of more than four million people,
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Speaker 3: it's mandatory that there be a special grand jury. The
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Speaker 3: District of Columbia has a population below four million, and
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Speaker 3: although it conducts long term investigations, which is the purpose
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Speaker 3: of a special grand jury, it's rarely done in DC.
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Speaker 3: So this is unusual, which is why I think it
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Speaker 3: has caught the attention of many observers.
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Speaker 2: Tell us about some former special grand juries and what
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Speaker 2: they are used for.
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Speaker 3: In my former district, for example, the Eastern District of Michigan,
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Speaker 3: we always had a special grand jury that was ongoing.
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Speaker 3: So a regular grand jury sits for six months, so
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Speaker 3: they hear short cases a one count bank robbery, a
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Speaker 3: one count felon in possession case, where the evidence can
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Speaker 3: be presented all in one sitting or maybe over just
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Speaker 3: a couple of weeks, and the grand jury sort of
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Speaker 3: hurt all they need to hear and is ready to
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Speaker 3: make a decision to either return or decline to return.
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Speaker 4: An indictment.
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Speaker 3: A special grandjury sits for eighteen months, and so that
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Speaker 3: allows them to participate in longer term investigations. They were
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Speaker 3: originally created for organized crime investigations, So if you're investigating
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Speaker 3: a mob case, it might be that you need to
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Speaker 3: first use the grand jury to obtain lots of documents.
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Speaker 3: Once you get those, maybe you need to bring in
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Speaker 3: a witness or a cooperating witness and compel them to testify.
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Speaker 3: And based on the information you get there, one step
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Speaker 3: leads to another, and it can take many, many months
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Speaker 3: to put together one of those cases. It can also
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Speaker 3: be extended to up to thirty six months for longer cases.
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Speaker 3: Since the began in the late nineteen sixties, they've now
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Speaker 3: been expanded to public corruption cases, national security cases, any
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Speaker 3: case that might take longer than six months to complete.
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Speaker 4: That's the purpose of them in other districts.
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Speaker 2: Suppose that they wanted to investigate Jerome Powell again, would
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Speaker 2: that be enough to convene a special grand jury or
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Speaker 2: does it have to be more than that. Let's say
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Speaker 2: a series of cases that fall along similar lines, something
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Speaker 2: bigger than just the investigation of one person.
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Speaker 3: It usually is, So I don't know I think one
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Speaker 3: of the reasons people have pointed to Jerome Powell is
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Speaker 3: because the attorney assigned to the case is Stephen Vandervelden,
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Speaker 3: and he is someone who was assigned to the Jerome
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Speaker 3: Powell investigation. He is also the lawyer assigned to the
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Speaker 3: case that attempted to indict the six members of Congress
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Speaker 3: for participating in a video where they simply restated accurately
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Speaker 3: the law of the duty of military members to refuse
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Speaker 3: an illegal order. And so I think because of his role.
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Speaker 3: He also spent thirty four years in the Westchester County
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Speaker 3: District Attorney's office, working for in part, Janine Piro, so
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Speaker 3: she brought him on board. She has spoken very highly
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Speaker 3: of his skills as a prosecutor an investigator, and seems
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Speaker 3: to be a real Puro loyalist. And so I think
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Speaker 3: that's another reason that people are concerned about this. And
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Speaker 3: so it seems like what you would use this for
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Speaker 3: convene this for would be a larger, longer term investigation.
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Speaker 3: They're sometimes referred to by prosecutors as enterprise investigations because
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Speaker 3: you might be looking at organized criminal activity with more
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Speaker 3: than just one participant. If you thought you could indict
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Speaker 3: a case in six months on just a single individual
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Speaker 3: with a single counter one scheme, it probably would be
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Speaker 3: unnecessary to convene a special grand jury. So this strikes
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Speaker 3: me as a larger enterprise investigation most likely. You know,
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Speaker 3: we've been reading about what do they call it, the
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Speaker 3: Grand Conspiracy investigation.
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Speaker 4: It's occurring in Florida.
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Speaker 3: It would seem this be the kind of thing you
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Speaker 3: might expect a special grand jury to be convened for.
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Speaker 2: Can you tell us about the Florida investigation?
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Speaker 3: Yeah, we don't know all the details, of course, because
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Speaker 3: grandury investigations are by nature secret, But the reporting by
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Speaker 3: some of the witnesses who have received grand jury subpoenas
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Speaker 3: has indicated that there is an investigation into the origins
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Speaker 3: of the twenty sixteen investigation into connections between Russia and
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Speaker 3: the Trump campaign that was sometimes referred to as Crossfire
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Speaker 3: Hurricane investigation. And by the way, those names that the
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Speaker 3: FBI generates as the names just come from a computer
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Speaker 3: because they don't want anybody to be tipped off onto
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Speaker 3: what they're really looking at, and so they generate two
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Speaker 3: random words, and so Crossfire Hurricane was the one that
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Speaker 3: was investigating ties between Russia and the Trump campaign and
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Speaker 3: the grand conspiracy I suppose is that this was all
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Speaker 3: just some cooked up effort by the so called deep state.
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Speaker 3: John Brennan seems to be at the center of it.
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Speaker 3: He was the Director of National Intelligence. Jim Comey, who
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Speaker 3: was the head of the FBI at the time. There
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Speaker 3: seems to be some theory that there was a grand
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Speaker 3: conspiracy among them to take down Donald Trump. Of course
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Speaker 3: that wasn't publicly announced during the election. It strikes me
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Speaker 3: as something that is baseless in light of the fact
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Speaker 3: that we have seen two Inspector General investigations, the John
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Speaker 3: Durham Special Council Investigation congressional investigations that have turned up
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Speaker 3: no wrongdoing in those cases, but that based on reporting
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Speaker 3: has been occurring in Florida. You could imagine something similar
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Speaker 3: or maybe akin to that investigation occurring as part of
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Speaker 3: the special investigation, but of course we don't know, could
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Speaker 3: be something perfectly legitimate.
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Speaker 2: Janine Piro's office hasn't come close to delivering on what
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Speaker 2: the president wants. She came close to being fired for
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Speaker 2: dropping the charges against the Olympian for allegedly vandalizing the
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Speaker 2: reflecting pool. But also you mentioned in the case with
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Speaker 2: the six lawmakers and Jerome Powell. Could it be that
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Speaker 2: she's just reinvestigating those cases.
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Speaker 3: It's quite possible, you know, we really don't know what
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Speaker 3: this is. By their nature, grandjuries are secret, and for
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Speaker 3: good reason. The idea is you don't want to compromise
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Speaker 3: an investigation by announcing to the world that you're investigating.
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Speaker 3: It could cause people to destroy documents or tamper with witnesses,
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Speaker 3: or flee or otherwise compromise an investigation. So and even
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Speaker 3: harm the reputation of the person under investigation if it
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Speaker 3: should turn out that no charges are ever filed. So
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Speaker 3: we may not know, but oftentimes hints spill out because
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Speaker 3: witnesses and their lawyers start talking to the press. They
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Speaker 3: want to be able to sort of tell their side
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Speaker 3: of the story in the court of public opinion, and
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Speaker 3: so for that reason sometimes we see these leaks. Sometimes
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Speaker 3: people suspect that it's members of the grand jury or
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Speaker 3: the court or the prosecutors who are leaking. In my experience,
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Speaker 3: it's usually the lawyer for someone who's been called before
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Speaker 3: the grand jury, because they want to make it clear
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Speaker 3: that they're a witness and not a target of the
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Speaker 3: grand jury and be the first to kind of tell
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Speaker 3: their story.
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Speaker 4: So we don't know.
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Speaker 3: It is possible that they're reviewing some of these prior cases,
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Speaker 3: could be something completely different, could be preparing for some
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Speaker 3: criminal investigation relating to the upcoming elections.
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Speaker 4: I don't know.
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Speaker 3: The timing of it though, also concerns people because it
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Speaker 3: comes right after Todd Blanche is confirmed and right after
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Speaker 3: Jennine puro falls into disfavor for dismissing the case against
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Speaker 3: David Hearn.
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Speaker 4: In the Reflecting Pool case.
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Speaker 3: So I think some see it as an effort to
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Speaker 3: make good and please the president, but of course we
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Speaker 3: really don't know exactly what's going on there.
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Speaker 2: Another concern some people have is because the special grand
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Speaker 2: Jury can issue a report at the end of the investigation,
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Speaker 2: even if the prosecutors don't bring charges against anyone in particular,
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Speaker 2: So you could have a report out.
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Speaker 3: There, yes, and I think that is concerning as well,
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Speaker 3: you know, if you're in good faith. Most often grand
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Speaker 3: juries do not issue a report, but they could. They
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Speaker 3: could issue something similar to what Robert Muller did at
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Speaker 3: the conclusion of his investigation. Usually it's written by the
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Speaker 3: prosecutor who is leading it. In this case Stephen van
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Speaker 3: der Velden to discuss what they found, even if it
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Speaker 3: doesn't result in charges. So one could imagine this would be,
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Speaker 3: in my opinion, and abuse of the process. But one
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Speaker 3: could imagine an effort to bring some witnesses to testify
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Speaker 3: based on some conspiracy theory. The grand jury ultimately declines
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Speaker 3: to issue any charges, but a report gets issued that
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Speaker 3: does dirty up somebody politically, So that would be another
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Speaker 3: concern about an abuse here.
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Speaker 4: But there's this long standing.
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Speaker 3: Presumption of regularity when it comes to the Justice Department,
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Speaker 3: that we assume good faith, we assume they are using
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Speaker 3: their tools appropriately.
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Speaker 4: But of course many judges have found just the opposite
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Speaker 4: in this administration. So I think that's why people are concerned.
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Speaker 2: And prosecutors only have to show that there's a preponderance
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Speaker 2: of evidence of wrongdoing, a really low standard to bring
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Speaker 2: out one of these grand jury reports.
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Speaker 3: Yes, a report would really just be you know, they were,
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Speaker 3: as I said, they were formed for the purpose of
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Speaker 3: organized crime. And I think the idea was that even
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Speaker 3: if you couldn't get an indictment against everybody, or maybe
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Speaker 3: you did, you could give the district sort of a
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Speaker 3: state of the district where you stand on organized crime,
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Speaker 3: so that the public could be educated about something that
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Speaker 3: was happening in the shadows. And as I said, I'm
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Speaker 3: not sure I've ever seen one of these things, but
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Speaker 3: they are authorized to do it, and so I suppose
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Speaker 3: some of the concern is that even if there is
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Speaker 3: insufficient evidence to bring a case, there could be this
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Speaker 3: effort to dirty people up. Remember Ed Martin, he was
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Speaker 3: somebody who was at one time the interim US Attorney
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Speaker 3: in the District of Columbia. He then got appointed to
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Speaker 3: be the head of the Weaponization Task Force and the
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Speaker 3: head of the.
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Speaker 4: Office of the Pardon Attorney.
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Speaker 3: I think he's still there as the Pardon Attorney, but
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Speaker 3: he's become very quiet in recent days after his efforts
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Speaker 3: to indict Letitia James that seemed to fall apart. He
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Speaker 3: said something really interesting when he first took on those roles,
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Speaker 3: which was, we're going to name and shame people even
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Speaker 3: if we don't have the evidence to convict them, because
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Speaker 3: that's what the public cares about. That is a distortion
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Speaker 3: of the Justice Department's mission, which is to bring cases
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Speaker 3: only if you believe the evidence is sufficient to obtain
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Speaker 3: and support a conviction on appeal, and so the idea
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Speaker 3: that you would just use it for the purpose of
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Speaker 3: naming and shaming seems like a violation of DOJ's policy guidelines,
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Speaker 3: the principles of federal prosecution to avoid engaging in partisan politics.
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Speaker 3: So I worry a little bit about that aspect of this,
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Speaker 3: this ability to issue a report.
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Speaker 2: Is there any protection in the fact that a judge
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Speaker 2: has to decide that there is a preponderance of evidence
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Speaker 2: of wrongdoing before signing off on the issuance of a
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Speaker 2: report from the grand jury.
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Speaker 4: Yes, I think that is a check.
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Speaker 3: But of course a preponderance of the evidence is much
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Speaker 3: less than the standard that prosecutors would use to bring
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Speaker 3: an indictment, even though the grand jury may bring an
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Speaker 3: indictment based only on probable cause, which is a level
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Speaker 3: actually below preponderance of the evidence. Preponderence of the evidence
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Speaker 3: is kind of fifty one percent. Probable cause doesn't have
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Speaker 3: a number attached to it, but it just means reasonable
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Speaker 3: grounds to believe that a crime has been committed by
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Speaker 3: this person, and so it's a lowish standard. But the
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Speaker 3: principles of criminal prosecution say that a prosecutor should only
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Speaker 3: seek an indictment if they believe they can prove the
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Speaker 3: case beyond a reasonable doubt. That very highest standard, and
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Speaker 3: so the a judgment will apply the law. They're not
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Speaker 3: applying their opinion about whether they think this is a
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Speaker 3: good thing or a bad thing. But if there's a
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Speaker 3: preponderance of the evidence fifty one percent, even if it
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Speaker 3: could never be proved beyond a reasonable doubt, means that
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Speaker 3: that could become public information. And so as a former prosecutor,
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Speaker 3: I worry about that a little bit. Prosecutors are trained
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Speaker 3: to be very circumspect with filing charges and to bring
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Speaker 3: them only if they believe that the case can be
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Speaker 3: proved beyond a reasonable doubt, because of the recognition of
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Speaker 3: the awesome power of a prosecutor to ruin someone's life,
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Speaker 3: not only to take away their liberty, but to take
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Speaker 3: away their reputation. And I think a report could do
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Speaker 3: just that without the other part of having evidence beyond
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Speaker 3: a reasonable doubt.
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Speaker 2: As I understand it, the DC District Chief Judge, whose
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Speaker 2: Judge James Boseburg, has to approve the convening of a
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Speaker 2: special grand jury. I mean, is there any standard that
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Speaker 2: he uses or is that just a pro.
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Speaker 3: Forma yeah, I think it's pretty pro forma. You know,
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Speaker 3: I suppose it's there to avoid any abuse. So imagine
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Speaker 3: a US attorney wanted to convene.
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Speaker 4: Thirty special grand juries.
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Speaker 3: That would be very burdensome on the court personnel and
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Speaker 3: also on the grand jurors themselves. And so I think
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Speaker 3: you have to make the request and the judge has
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Speaker 3: to approve it, because the court's going to utilize a
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Speaker 3: lot of its own resources to support a grand jury.
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Speaker 4: But I think other than that, it's fairly pro forma.
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Speaker 3: I think if the US Attorney requests one in a way,
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Speaker 3: I can't imagine Judge Bozburg will decline it.
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Speaker 2: Unlike regular grand juries, the target of a special grand
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Speaker 2: jury can request to testify and present witnesses.
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Speaker 4: Yes, you know, in fact, any any target can do that.
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Speaker 3: It's very rare that that happens, because usually a target
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Speaker 3: wants to exercise their right against self incrimination, doesn't want
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Speaker 3: to be locked into any story.
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Speaker 4: But there is that right.
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Speaker 3: They can even be subpoena to testify, even though they
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Speaker 3: might invoke their Fifth Amendment rights if that is the
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Speaker 3: only place where you can get the information.
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Speaker 4: But it's pretty rare.
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Speaker 3: I'd be surprised if any target testifies in this or
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Speaker 3: any other investigation coming up.
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Speaker 2: Next, i'll continue this conversation with Barbara McQuaid. Is doctor
14:44
Speaker 2: Anthony Fauci likely to be indicted? This is Bloomberg. On
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Speaker 2: July twenty ninth, we had the Homeland Security Committee making
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Speaker 2: a referral to the Justice Department to prosecute him for
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Speaker 2: invoking his Fifth Amendment rights. Do you think that Piro's
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Speaker 2: office will actually indict Fauci for that.
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Speaker 3: I'd be very surprised to see charges against doctor Fauci
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Speaker 3: for invoking the Fifth Amendment during those congressional hearings. He
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Speaker 3: had absolutely every right to do that. You know, Jinny
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Speaker 3: and Pierro, I think is very much a Trump loyalist,
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Speaker 3: but I think she understands the law and the consequences
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Speaker 3: of bringing a case that is unsupported.
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Speaker 4: The basis for.
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Speaker 3: The contempt referral is that he was granted a pardon
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Speaker 3: by Joe Biden, but of course that pardon is only
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Speaker 3: retroactive for anything he may have done leading up to
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Speaker 3: the date.
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Speaker 4: I think it was January nineteenth of twenty twenty five.
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Speaker 3: What he's concerned about now is that he is testifying
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Speaker 3: and that there will be some perjury trap, you know,
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Speaker 3: where they ask him a question based on the changed
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Speaker 3: understanding of something he testified about several years ago, and
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Speaker 3: they charged him with a new crime. And so as
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Speaker 3: long as he has any reasonable fear of prosecution title
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Speaker 3: to invoke that right, he also has the right to
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Speaker 3: invoke it for any state prosecution, because a pardon, of
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Speaker 3: course by a president can only cover federal offenses.
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Speaker 4: And already there are.
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Speaker 3: Attorneys general around the country who announced investigations against him.
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Speaker 3: South Carolina and Florida are two of several. So he's
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Speaker 3: absolutely on solid ground invoking his right. I think Jenine
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Speaker 3: Piro knows that, and I'd be very surprised to see
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Speaker 3: her bring a case. It's really considered unethical to bring
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Speaker 3: a case where you don't believe.
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Speaker 4: You have the evidence or the law on your side.
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Speaker 2: So talking about not having the evidence to support charges
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Speaker 2: in the Reflecting Pool case, there have been stories about
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Speaker 2: the White House still wanting the Justice Department to bring charges,
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Speaker 2: and I'm wondering why the Justice Department is fighting over
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Speaker 2: whether to have the charges dismissed with or without prejudice.
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Speaker 2: I mean, why if they don't intend to bring them again.
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Speaker 2: Why wouldn't they just agree to dismiss them with prejudice
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Speaker 2: instead of arguing before the judge.
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Speaker 3: I don't know, because there seems no world in which
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Speaker 3: you could bring these charges. The crime requires proof that
17:09
Speaker 3: the person caused more than one thousand dollars worth of
17:13
Speaker 3: damage maliciously, and there's just no way to do that
17:17
Speaker 3: in this case, as that report indicates the pool was
17:21
Speaker 3: already damaged. You know, the classic law school example is
17:25
Speaker 3: you can't be charged with murder for shooting a dead body.
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Speaker 4: You didn't cause the death. You could fire one hundred
17:32
Speaker 4: bullets into a dead body.
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Speaker 3: You might be charged with a different crime of mutilating
17:35
Speaker 3: a corpse or something like that, but you can't cause
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Speaker 3: their murder because they're already dead. I think the same
17:39
Speaker 3: is true with regard to the reflecting pool. It was
17:41
Speaker 3: already damaged, and so the idea that Davy Hearn pulled
17:44
Speaker 3: or tugged on a piece of floating paint just did
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Speaker 3: not cause one thousand dollars worth of damage to that
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Speaker 3: reflecting pool. So I don't know why anyone would want
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Speaker 3: to consider dismissing that case without prejudice because they can't
17:57
Speaker 3: bring it again based on the dismissal motion that Jeanine
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Speaker 3: Piro brought and that Department of Interior report that she produced,
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Speaker 3: I just don't see how they ever prove these charges.
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Speaker 4: So I don't know.
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Speaker 3: I imagine this is at some level of the White House,
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Speaker 3: whether it's Donald Trump himself or Stephen Miller or someone
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Speaker 3: else who just can't admit they were wrong, wants to
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Speaker 3: preserve the possibility that they bring charges again against David Hearn.
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Speaker 4: And let me also add this.
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Speaker 3: I know Jeanine Piro is getting a lot of credit
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Speaker 3: from doing this dismissal and quote doing the right thing,
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Speaker 3: and I guess she should, but she never should have
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Speaker 3: charged this case to begin with. The idea that she
18:35
Speaker 3: only just now discovered that he couldn't have caused a
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Speaker 3: thousand dollars worth of damage is absolute nonsense. Everybody said
18:41
Speaker 3: it at the time. Everybody knew it at the time.
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Speaker 3: The reason David Herton went to the pool was to
18:45
Speaker 3: see what the fuss was all about. That's why he
18:49
Speaker 3: said he grabbed the paint. So you know, the report
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Speaker 3: gives her a basis, but I think the real reason
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Speaker 3: is the timing. We know that just the day before
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Speaker 3: the lawyer for David Hearn Norm Eisen had filed a
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Speaker 3: motion to request all of the grand jury colloquy transcripts
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Speaker 3: because of some irregularities in the testimony of one witness,
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Speaker 3: who first testified he did not know the value of
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Speaker 3: the damage, leaves the room, comes back twenty minutes later
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Speaker 3: and says, oh, the damage was one thousand dollars. That
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Speaker 3: was so irregular that he asked, I want to see
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Speaker 3: all of the transcripts. And it was the next day
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Speaker 3: that Jeanine Pierro moved to dismiss the indictment. So I
19:27
Speaker 3: think she realized the jig was up and she was
19:29
Speaker 3: going to be humiliated unless she dismissed it on her own.
19:33
Speaker 3: So she was very proactive and suddenly sharing this new
19:36
Speaker 3: report that we just got. We had no idea that
19:38
Speaker 3: it was already damaged and that he could not possibly
19:41
Speaker 3: have damaged it to the tune of one thousand dollars.
19:43
Speaker 3: I think that was nonsense, and I don't think she
19:45
Speaker 3: deserves any credit at all. I think a good prosecutor
19:48
Speaker 3: never would have charged that case at all.
19:50
Speaker 2: I mean, during her press conference about bringing the charges,
19:53
Speaker 2: Piero said that they had the evidence to prove the
19:56
Speaker 2: case beyond a reasonable doubt that they had witnesses, and
20:01
Speaker 2: even said that there were witnesses to Hearn's being nasty
20:05
Speaker 2: with the park officers, which there appears to be no
20:09
Speaker 2: evidence of.
20:10
Speaker 3: Her remarks that the press conference were inappropriate. Under DOJ policy,
20:14
Speaker 3: a US attorney may give public remarks to inform the
20:16
Speaker 3: public about what's happening in a case, but they're not
20:19
Speaker 3: supposed to go beyond the four corners of the indictment.
20:22
Speaker 3: Sometimes there are what is called a speaking indictment that
20:24
Speaker 3: has a great deal of detail. There were times when
20:27
Speaker 3: I did press conferences with a speaking indictment and I
20:30
Speaker 3: made reference to allegations in the indictment, you know, the
20:32
Speaker 3: indictment alleges.
20:34
Speaker 4: That X, Y and Z happened. This indictment was one sentence.
20:37
Speaker 3: It just said that David Hearn maliciously caused more than
20:40
Speaker 3: a thousand dollars worth of damage to the reflecting pool.
20:43
Speaker 3: So for her to make all those out of court
20:45
Speaker 3: statements was really inappropriate. And I don't know what she
20:48
Speaker 3: was thinking. Then maybe she was misinformed by her assistance.
20:51
Speaker 3: That's a possibility, but shame on her. If that's the case,
20:54
Speaker 3: she should have been educated and read those things before
20:57
Speaker 3: she made those statements. But it really goes back to
20:59
Speaker 3: that end idea of Ed Martin with the name in Shane.
21:02
Speaker 3: They can really ruin someone's life just by charging them,
21:06
Speaker 3: and that is unethical and violation of dj policies.
21:11
Speaker 4: But think about what.
21:12
Speaker 3: Was done here, the willingness to ruin an innocent man's life,
21:15
Speaker 3: an Olympian, you know, I mean, he's no better or
21:18
Speaker 3: no worse than anyone else.
21:19
Speaker 4: But they were willing to accuse him of a crime.
21:23
Speaker 3: Just to escapegoat him because President Trump could not accept
21:27
Speaker 3: the humiliation of damaging the reflecting pool and the falsely
21:33
Speaker 3: claiming baselessly claiming that it was committed by vandals, and
21:38
Speaker 3: so to indulge him in his story, they were willing
21:42
Speaker 3: to throw an innocent man under the bus.
21:45
Speaker 2: It's disgusting and there are many other DC residents who've
21:49
Speaker 2: experienced being overcharged by the DCUs Attorney's Office. Thanks so
21:55
Speaker 2: much for joining me today, Barbara. That's Professor Barbara McQuaid
21:58
Speaker 2: of the University of Michigan Law School. Her new book
22:02
Speaker 2: is called The Fix, Saving America from the Corruption of
22:06
Speaker 2: a Mob style Government. Coming up next on the Bloomberg
22:09
Speaker 2: Law show ICE is looking at spending twenty million dollars
22:14
Speaker 2: to equip agents with stun gloves that send an electrical
22:18
Speaker 2: shock to someone simply by touching them. I'm June Grosso
22:22
Speaker 2: and you're listening to Bloomberg.
22:27
Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.
22:33
Speaker 2: ICE plans to spend between ten and twenty million dollars
22:37
Speaker 2: to outfit officers and agents with quote conductive distraction and
22:43
Speaker 2: de escalation devices gloves that deliver painful electric shocks their
22:49
Speaker 2: normal patrol gloves until an officer presses a button to
22:53
Speaker 2: activate its electrical mode. They must be applied directly to
22:57
Speaker 2: someone's skin to produce a voltage that causes pain, which
23:01
Speaker 2: is intended to gain compliance from people who are resisting.
23:06
Speaker 2: This disclosure comes in the wake of two recent fatal
23:10
Speaker 2: shootings carried out by ICE officers in Texas and Maine.
23:15
Speaker 2: Leon Ice has been accused of using excessive force time
23:19
Speaker 2: and time again and several fatal shootings. Why put another
23:24
Speaker 2: weapon in their hands.
23:25
Speaker 1: Well, it depends how you look at it.
23:27
Speaker 5: So what they're trying to do is they're trying to
23:29
Speaker 5: find ways to not use lethal force in situations. Where
23:34
Speaker 5: they're having escalations because either the person that they're trying
23:38
Speaker 5: to apprehend is trying to resist arrest, or there are
23:42
Speaker 5: individuals trying to obstruct the line of sight of ICE
23:47
Speaker 5: so that they can't get to the person they're trying
23:49
Speaker 5: to arrest. And so you have contractors like this glove
23:52
Speaker 5: company who are saying, look, here's a non lethal way
23:56
Speaker 5: that you can immediately touch someone with a glove that
24:00
Speaker 5: your ICE agent is wearing and give them a shock
24:02
Speaker 5: so that you can then disable that person temporarily and
24:06
Speaker 5: either arrest them if you need to, or just move
24:09
Speaker 5: to the person that you're trying to arrest. And so
24:12
Speaker 5: the question is with these non lethal uses of force,
24:15
Speaker 5: this has been a thing forever, whether it's been pepper
24:17
Speaker 5: spray or a taser or maze or whatever. Does it
24:21
Speaker 5: end up happening that the officers end up using these
24:24
Speaker 5: non lethal uses of force more than they would have
24:28
Speaker 5: used force otherwise, or do they actually end up getting
24:31
Speaker 5: used in lieu of deadly force. So that's always the question,
24:37
Speaker 5: and that could have come down to training, It's going
24:39
Speaker 5: to come down to officer discipline and all of these things.
24:42
Speaker 5: And so unfortunately we're going to have to wait and
24:45
Speaker 5: see to determine whether at the end of the day,
24:48
Speaker 5: this is actually going to be a solution for not
24:51
Speaker 5: using lethal force or whether it's going to actually be
24:53
Speaker 5: an aggravator in terms of total uses of force increasing
24:57
Speaker 5: when they otherwise wouldn't have increased.
25:00
Speaker 2: Because we're at a point now where we've had the
25:03
Speaker 2: two recent fatal shootings by ice officers in Texas and Maine,
25:09
Speaker 2: and there are video surfacing showing their aggressive tactics. There's
25:14
Speaker 2: one where an ice officer is pointing a gun at
25:18
Speaker 2: a woman, claiming she tried to hit them with her car.
25:21
Speaker 2: This after how many times ice officers have been caught
25:24
Speaker 2: on camera on video shooting people who are in their cars,
25:29
Speaker 2: starting with Renee Good in Minneapolis.
25:32
Speaker 1: Yeah.
25:33
Speaker 5: Correct, there's no reason to be pointing your weapon at
25:36
Speaker 5: any point that anyone who's not in the process of
25:40
Speaker 5: using force against you or even as a threat to
25:42
Speaker 5: use force against you.
25:44
Speaker 1: And so exactly, this is.
25:46
Speaker 5: The kind of thing where you hope that other types
25:49
Speaker 5: of non lethal force would be used in that situation.
25:53
Speaker 5: But again, maybe you don't need to use force at all.
25:56
Speaker 5: And so that's the debate. Is the glove going to
25:58
Speaker 5: replace not using at all, meaning more people are going
26:02
Speaker 5: to get shocked. And people have a special concerns for
26:05
Speaker 5: things like children or pregnant ladies, or elderly people with
26:09
Speaker 5: hard issues or people with mental defects. You know, that's
26:13
Speaker 5: the concern here, as are those people going to start
26:15
Speaker 5: being subject to this force or is this really going
26:18
Speaker 5: to be used in a way that actually diminishes the
26:21
Speaker 5: total use of lethal force. So obviously we would hope
26:24
Speaker 5: it gets used in that second manner where it's diminishing
26:27
Speaker 5: lethal force, but we'll just have to wait and see.
26:29
Speaker 2: I have to say, I mean, I was shocked at
26:31
Speaker 2: with all the shootings we've had over months and months
26:35
Speaker 2: and months and the killings, that an ICE officer would
26:38
Speaker 2: still point a gun at someone like that. It appears
26:41
Speaker 2: that they haven't gotten the message about their aggressive tactics.
26:45
Speaker 5: Well, I think the problem is again that these ICE
26:48
Speaker 5: agents are really there to do detensions and removals, and
26:52
Speaker 5: this is why you're seeing them try to move to
26:55
Speaker 5: things like airport arrests and courthouse arrests and other kinds
26:59
Speaker 5: of arrests where people are in sanitized environments rather than
27:03
Speaker 5: they're on the street or at home. Because every time
27:06
Speaker 5: they're arresting people on the street or at home. This
27:09
Speaker 5: is the problem is there are so many of those
27:11
Speaker 5: interactions that they're not trained to be in the type
27:15
Speaker 5: of local police environment where the local police are trained
27:19
Speaker 5: to avoid these types of confrontations, and so you keep
27:22
Speaker 5: seeing them and until they get this kind of lengthy
27:25
Speaker 5: police training, unfortunately, you're going to see that, or they're
27:29
Speaker 5: going to have to change to the kinds of other
27:31
Speaker 5: arrests that also are making people nervous, like the ones
27:34
Speaker 5: at the airport and at the courthouses than at other places.
27:38
Speaker 2: New York Attorney General Letitia James said the state was
27:40
Speaker 2: reviewing the purchase agreement for possible avenues for a lawsuit.
27:45
Speaker 2: But I don't know what kind of a laws that
27:47
Speaker 2: you could have gets.
27:48
Speaker 4: Injured, right.
27:49
Speaker 5: The only way you could do is either under the
27:51
Speaker 5: excessive force context.
27:53
Speaker 1: If you start seeing a pattern of.
27:54
Speaker 5: Practice of excessive force where they're using these gloves and
27:58
Speaker 5: instead of so they could just be escalate using training,
28:02
Speaker 5: that would be one Or they're seeing some sort of
28:04
Speaker 5: racial profiling in the way that the force is being used.
28:08
Speaker 1: That might be another way. But short of that, I
28:11
Speaker 1: don't think you're going.
28:12
Speaker 5: To see the ability to actually sue on the uses
28:16
Speaker 5: of these gloves because these kinds of non lethal uses
28:18
Speaker 5: of force are quite common and are used even if
28:21
Speaker 5: it's just a taser. There's really not much difference between
28:23
Speaker 5: the glove and a taser at.
28:25
Speaker 1: The end of the day.
28:26
Speaker 2: Yeah, So let's turn down to the mandatory detention policy,
28:29
Speaker 2: which we've talked about before, because it's been going through
28:32
Speaker 2: the courts, many courts. There's a circuit split on it,
28:36
Speaker 2: but the first circuit now add to the six other
28:39
Speaker 2: circuits who ruled against the administration. So tell us what
28:44
Speaker 2: this is about again.
28:46
Speaker 5: So basically what this is about is when the government
28:49
Speaker 5: apprehends you to place you in deportation proceedings. The government
28:53
Speaker 5: now wants to be able to say that if you
28:56
Speaker 5: entered here illegally, meaning you didn't come here on a
28:59
Speaker 5: visa and you over but instead what you did was
29:02
Speaker 5: you entered here by crossing the border illegally. What they
29:05
Speaker 5: want to say is that the congressional statutory law that
29:09
Speaker 5: was passed in nineteen ninety six that said that if
29:12
Speaker 5: you were apprehended while trying to enter the country, you
29:15
Speaker 5: would be subject to mandatory removal, that that applies even
29:19
Speaker 5: if you've entered the country that the second the government
29:22
Speaker 5: grabbed you. Even if it's ten years after you tried
29:24
Speaker 5: to enter, or twenty years after you tried to enter,
29:27
Speaker 5: the government can still detain you mandatorily, meaning there's no bond.
29:32
Speaker 5: And remember, bond is something that if you were charged
29:35
Speaker 5: for a crime, you could ask for bond. So they're
29:38
Speaker 5: saying that here, even though there's no crime, this is
29:40
Speaker 5: just an immigration offense. And then the courts are very
29:43
Speaker 5: clear that immigration deportation cases are civil cases, they're not
29:47
Speaker 5: criminal cases. What they're saying is that here there's no
29:52
Speaker 5: bond because Congress passed this. So you've only had two courts.
29:56
Speaker 5: You've had the Eighth Circuit and the Fifth Circuit who've
29:59
Speaker 5: said that in this situation you can actually avoid having
30:05
Speaker 5: to give bond. But then you've had the ninth to tenth,
30:08
Speaker 5: the eleventh, the second, the sixth, and the seventh who
30:10
Speaker 5: said you do have to give bond, meaning you have
30:12
Speaker 5: to release the person if they're not a flight risk
30:16
Speaker 5: or if they're not dangerous to society. And what's at
30:19
Speaker 5: stake here is if you're free while your detention case
30:23
Speaker 5: is going on, then you can actually talk to a lawyer,
30:26
Speaker 5: you can do your strategy, you can get resources, et cetera.
30:31
Speaker 5: Whereas if you're in detention, you could be placed anywhere
30:34
Speaker 5: in the country. Many times there's not a lawyer within
30:36
Speaker 5: hundreds of miles of you, and it's going to be
30:39
Speaker 5: much much harder for you to win your case. You're
30:41
Speaker 5: not going to be able to visit your family because
30:43
Speaker 5: your family is going to be hundreds of miles from you,
30:45
Speaker 5: and you're also not going to likely to have access
30:48
Speaker 5: to counsel, which means you're very likely going to lose
30:51
Speaker 5: your deportation case. So it really makes all the difference
30:53
Speaker 5: in the world whether you're detained or not during these
30:56
Speaker 5: removal proceedings. And what the First Circuit said is, look,
31:01
Speaker 5: the statute says that the people who are subject to
31:05
Speaker 5: this mandatory detention are people who are both applicants for admission.
31:11
Speaker 5: That means anybody who's trying to get legal status. And
31:14
Speaker 5: so of course if you're fighting your deportation, then you
31:17
Speaker 5: are an applicant for admission because you're trying to get
31:19
Speaker 5: legal status, so that part check. But then the statute
31:23
Speaker 5: also says seeking admission, and so the government says seeking
31:27
Speaker 5: admission means the same thing as an applicant for amission.
31:29
Speaker 5: They just have to use different words. But there's this
31:33
Speaker 5: presumption in the law that that's not how it works.
31:35
Speaker 5: When there's different words than the same statute, they have
31:38
Speaker 5: to mean different things. Otherwise you would not use these
31:42
Speaker 5: different words. You would use the same words over and
31:44
Speaker 5: over again. And so what the foreign nationals who sue
31:48
Speaker 5: in these cases say is that that word seeking.
31:51
Speaker 1: Admission means that you have to be caught in the.
31:53
Speaker 5: Act of trying to cross the border, not ten years later,
31:56
Speaker 5: after you've already crossed the border many years later. And
32:00
Speaker 5: so that's why these courts, many of them are agreeing,
32:04
Speaker 5: is they're saying that both of these things. You have
32:06
Speaker 5: to be an applicant for admission, meaning you have to
32:08
Speaker 5: want to be here legally, and you have to be
32:11
Speaker 5: seeking admission when you're apprehended.
32:14
Speaker 1: Then that has to mean two different things.
32:15
Speaker 5: And that means we have to be catching you in
32:17
Speaker 5: the act of crossing the border, not many years later.
32:21
Speaker 5: And so from that standpoint, only two courts have said
32:24
Speaker 5: those mean the same thing. Now you have seven courts
32:27
Speaker 5: who say they need something different, and obviously the Supreme
32:30
Speaker 5: Court's going to look at this, and they're going to
32:32
Speaker 5: make the final determination.
32:34
Speaker 2: Do you think if the Supreme Court goes with a
32:36
Speaker 2: textualist reading that they'll agree with the seven circuits who've
32:42
Speaker 2: ruled against the administration.
32:45
Speaker 1: Well, here's the problem.
32:46
Speaker 5: I've now given up and trying to see where things
32:50
Speaker 5: are going in this sense, because I never thought, for
32:54
Speaker 5: the life of me that there would be three votes
32:56
Speaker 5: under the clearest constitutional words of all time to say
33:01
Speaker 5: that birthright citizenship is not a thing, because I mean,
33:05
Speaker 5: if you ask any Ai Claude Harvey, whoever the co pilot,
33:11
Speaker 5: what do these words mean? They would mean that if
33:14
Speaker 5: you're born here, you're a citizen. No one would dispute that.
33:17
Speaker 5: And yet there were three votes out of dying in
33:20
Speaker 5: the Supreme Court to say that, no, being born here
33:22
Speaker 5: doesn't mean anything.
33:23
Speaker 1: You're still not a citizen.
33:25
Speaker 5: They added all these things that are nowhere in the
33:27
Speaker 5: words of the thing. You have to have at least
33:29
Speaker 5: one parent who's a US citizen or a lawful permanent resident.
33:33
Speaker 5: Even the lawful permanent resident didn't even exist. That's a
33:36
Speaker 5: content that was invented in the nineteen fifties, and they're
33:39
Speaker 5: saying that that has some relevance to anything that was
33:42
Speaker 5: written in the eighteen sixties. And I never would have
33:45
Speaker 5: guessed in a million years that there'd be three votes
33:47
Speaker 5: for that. So the point is, there's at least three
33:49
Speaker 5: votes on this cord for this interpretation that seeking admission
33:55
Speaker 5: means the same thing as applicant for.
33:57
Speaker 1: Admission, meaning no bond.
33:59
Speaker 5: And so the question are there at least two additional
34:02
Speaker 5: votes for that? And how do I know really at
34:05
Speaker 5: the at the end of the day, because at this point,
34:08
Speaker 5: the only immigration case that Trump has lost in these
34:12
Speaker 5: last two years has been the birthright citizenship case. He
34:16
Speaker 5: hasn't lost any other cases. And so again, if it was.
34:20
Speaker 1: Claude AI or co Pilot AI.
34:22
Speaker 5: Or whatever, I think it would be a slam dug
34:25
Speaker 5: case that you have to say, these two things mean
34:27
Speaker 5: different things, so you have to assign meaning to those
34:29
Speaker 5: two things.
34:30
Speaker 1: And that's the textualist reading.
34:33
Speaker 5: But in this new world that we live in, you'd
34:35
Speaker 5: have to say it's fifty to fifty because there's no
34:38
Speaker 5: way to know how this will go.
34:40
Speaker 2: Welcome to my world, Leon, thanks so much. That's Leon
34:44
Speaker 2: Fresco of Honda Night. I'm June Grosso. Stay with us.
34:48
Speaker 2: Today's top stories and global business headlines are coming up
34:52
Speaker 2: right now. Nice plans to spend between ten and twenty
34:57
Speaker 2: million dollars to outfit officers and agents with quote conductive
35:03
Speaker 2: distraction and de escalation devices gloves that deliver painful electric
35:09
Speaker 2: shocks their normal patrol gloves until an officer presses a
35:13
Speaker 2: button to activate its electrical mode. They must be applied
35:17
Speaker 2: directly to someone's skin to produce a voltage that causes pain,
35:22
Speaker 2: which is intended to gain compliance from people who are resisting.
35:27
Speaker 2: This disclosure comes in the wake of two recent fatal
35:31
Speaker 2: shootings carried out by Ice officers in Texas and Maine.
35:35
Speaker 2: Leon Ice has been accused of using excessive force time
35:40
Speaker 2: and time again and several fatal shootings. Why put another
35:44
Speaker 2: weapon in their hands.
35:46
Speaker 1: Well, it depends on you look at it.
35:48
Speaker 5: So what they're trying to do is they're trying to
35:50
Speaker 5: find ways to not use lethal force in situations where
35:54
Speaker 5: they're having escalations because either the person that they're trying
35:59
Speaker 5: to apprehend is trying to resist arrest, or there are
36:03
Speaker 5: individuals trying to obstruct the line of sight of Ice
36:08
Speaker 5: so that they can't get to the person they're trying
36:10
Speaker 5: to arrest, and so you have contractors like this glove
36:13
Speaker 5: company who are saying, look, here's a non lethal way
36:17
Speaker 5: that you can immediately touch someone with a glove that
36:20
Speaker 5: your ice agent is wearing and give them a shock
36:23
Speaker 5: so that you can then disable that person temporarily and
36:27
Speaker 5: either arrest them if you need to, or just move
36:30
Speaker 5: to the person that you're trying to arrest. And so
36:33
Speaker 5: the question is with these non lethal uses of force,
36:36
Speaker 5: this has been a thing forever, whether it's been pepper
36:38
Speaker 5: spray or a taser or mace or whatever. Does it
36:42
Speaker 5: end up happening that the officers end up using these
36:45
Speaker 5: non lethal uses of force more than they would have
36:49
Speaker 5: used force otherwise, or do they actually end up getting
36:52
Speaker 5: used in lieu of deadly force. So that's always the question,
36:57
Speaker 5: and that could have come down to training, It's going
37:00
Speaker 5: to come down to officer discipline and all of these things.
37:03
Speaker 5: And so unfortunately we're going to have to wait and
37:06
Speaker 5: see to determine whether at the end of the day,
37:09
Speaker 5: this is actually going to be a solution for not
37:12
Speaker 5: using lethal force, or whether it's going to actually be
37:14
Speaker 5: an aggravator in terms of total uses of force increasing
37:18
Speaker 5: when they otherwise wouldn't have increased.
37:20
Speaker 2: Because we're at a point now where we've had the
37:24
Speaker 2: two recent fatal shootings by ice officers in Texas and Maine,
37:29
Speaker 2: and there are video servicing showing their aggressive tactics. There's
37:35
Speaker 2: one where an ice officer is pointing a gun at
37:38
Speaker 2: a woman, claiming she tried to hit them with her car.
37:42
Speaker 2: This after how many times ice officers have been caught
37:45
Speaker 2: on camera on video shooting people who are in their cars,
37:50
Speaker 2: starting with Renee Good in Minneapolis.
37:53
Speaker 1: Yeah.
37:53
Speaker 5: Correct, there's no reason to be pointing your weapon at
37:56
Speaker 5: any point that anyone who's not in the process of
38:00
Speaker 5: using force against you or even as a threat to
38:03
Speaker 5: use force against you.
38:05
Speaker 1: And so exactly, this is the.
38:07
Speaker 5: Kind of thing where you hope that other types of
38:10
Speaker 5: non lethal force would be used in that situation. But again,
38:14
Speaker 5: maybe you don't need to use force at all. And
38:17
Speaker 5: so that's the debate. Is the glove going to replace
38:20
Speaker 5: not using force at all? Meaning more people are going
38:23
Speaker 5: to get shocked. And people have a special concerns for
38:26
Speaker 5: things like children or pregnant ladies or elderly people with
38:30
Speaker 5: hard issues or people with mental defects.
38:33
Speaker 1: You know, that's the concern here.
38:35
Speaker 5: As are those people going to start being subject to
38:37
Speaker 5: this force or is this really going to be used
38:39
Speaker 5: in a way that actually diminishes the total use of
38:43
Speaker 5: lethal force.
38:44
Speaker 1: So obviously we would hope it gets used.
38:46
Speaker 5: In that second manner where it's diminishing lethal force, but
38:49
Speaker 5: we'll just have to wait and see.
38:50
Speaker 2: I have to say, I mean, I was shocked that
38:52
Speaker 2: with all the shootings we've had over months and months
38:55
Speaker 2: and months and the killings, that a nice officer would
38:59
Speaker 2: still point to gun at someone like that. It appears
39:02
Speaker 2: that they haven't gotten the message about their aggressive tactics.
39:06
Speaker 5: Well, I think the problem is again that these ice
39:09
Speaker 5: agents are really there to do detentions and removals, and
39:13
Speaker 5: this is why you're seeing them try to move to
39:15
Speaker 5: things like airport arrests and courthouse arrests and other kinds
39:19
Speaker 5: of arrests where people are in sanitized environments rather than
39:24
Speaker 5: they're on the street or at home, because every time
39:27
Speaker 5: they're arresting people on the street or at home, this
39:30
Speaker 5: is the problem, is there are so many of those
39:32
Speaker 5: interactions that they're not trained to be in the type
39:36
Speaker 5: of local police environment where the local police are trained
39:40
Speaker 5: to avoid these types of confrontations, and so you keep
39:43
Speaker 5: seeing them and until they get this kind of lengthy
39:46
Speaker 5: police training. Unfortunately you're going to see that, or they're
39:50
Speaker 5: going to have to change to the kinds of other
39:52
Speaker 5: arrests that also are making people nervous, like the ones
39:55
Speaker 5: at the airport and at the courthouses than at other places.
39:58
Speaker 2: New York Attorney General Tisha James said the state was
40:01
Speaker 2: reviewing the purchase agreement for possible avenues for a lawsuit.
40:06
Speaker 2: But I don't know what kind of a laws that
40:08
Speaker 2: you could have gets injured right.
40:10
Speaker 5: The only way you could see is either under the
40:12
Speaker 5: excessive force context, if you start seeing a pattern of
40:15
Speaker 5: practice of excessive force where they're using these gloves and
40:19
Speaker 5: instead of so they could just de escalate using training,
40:23
Speaker 5: that would be one. Or they're seeing some sort of
40:25
Speaker 5: racial profiling in the way that the force is being used.
40:29
Speaker 5: That might be another way. But short of that, I
40:32
Speaker 5: don't think you're going to see the ability to actually
40:36
Speaker 5: sue on the uses of these gloves because these kinds
40:38
Speaker 5: of non lethal uses of force are quite common and
40:41
Speaker 5: are used even.
40:41
Speaker 1: If it's just a taser.
40:42
Speaker 5: There's really not much difference between the glove and a
40:45
Speaker 5: taser at the.
40:46
Speaker 1: End of the day.
40:46
Speaker 2: Yeah, So let's turn down to the mandatory detention policy,
40:49
Speaker 2: which we've talked about before, because it's been going through
40:53
Speaker 2: the courts, many courts. There's a circuit split on it.
40:57
Speaker 2: But the first circuit now add to the six other
41:00
Speaker 2: circuits who ruled against the administration. So tell us what
41:05
Speaker 2: this is about again.
41:06
Speaker 5: So basically what this is about is when the government
41:10
Speaker 5: apprehends you to place you in deportation proceedings. The government
41:14
Speaker 5: now wants to be able to say that if you
41:16
Speaker 5: entered here illegally, meaning you didn't come here on a
41:20
Speaker 5: visa and you overstayed, but instead what you did was
41:23
Speaker 5: you entered here by crossing the border illegally. What they
41:26
Speaker 5: want to say is that the congressional statutory law that
41:29
Speaker 5: was passed in nineteen ninety six that said that if
41:33
Speaker 5: you were apprehended while trying to enter the country, you
41:36
Speaker 5: would be subject to mandatory removal. That that applies even
41:40
Speaker 5: if you've entered the country, that the second the government
41:43
Speaker 5: grabbed you, Even if it's ten years after you tried
41:45
Speaker 5: to enter or twenty years after you tried the enter,
41:48
Speaker 5: the government can still detain you mandatorily.
41:52
Speaker 1: Meaning there's no bond.
41:53
Speaker 5: And remember, bond is something that if you were charged
41:56
Speaker 5: for a crime, you could ask for bond.
41:58
Speaker 1: So they're saying that.
41:59
Speaker 5: He even though there's no crime, this is just an
42:01
Speaker 5: immigration offense. And then the courts are very clear that
42:04
Speaker 5: immigration deportation cases are civil cases, they're not criminal cases.
42:10
Speaker 5: What they're saying is that here there's no bond because
42:14
Speaker 5: Congress passed this.
42:16
Speaker 1: So you've only had two courts.
42:17
Speaker 5: You've had the Eighth Circuit and the Fifth Circuit who've
42:19
Speaker 5: said that in this situation you can actually avoid.
42:25
Speaker 1: Having to give bond.
42:26
Speaker 5: But then you've had the ninth to tenth, the eleventh,
42:29
Speaker 5: the second, the sixth, and the seventh who said you
42:32
Speaker 5: do have to give bond, meaning you have to release
42:34
Speaker 5: the person if they're not a flight risk or if
42:37
Speaker 5: they're not dangerous to society. And what's at stake here
42:41
Speaker 5: is if you're free while your detention case is going on,
42:45
Speaker 5: then you can actually talk to a lawyer, you can
42:47
Speaker 5: do your strategy, you can get resources, et cetera. Whereas
42:52
Speaker 5: if you're in detention, you could be placed anywhere in
42:55
Speaker 5: the country. Many times there's not a lawyer within hundreds
42:57
Speaker 5: of miles of you, and it's going to be much
43:00
Speaker 5: much harder for you to win your case. You're not
43:02
Speaker 5: going to be able to visit your family because your
43:04
Speaker 5: family is going to be hundreds of miles from you,
43:06
Speaker 5: and you're also not going to likely to have access
43:08
Speaker 5: to council, which means you're very likely going to lose
43:11
Speaker 5: your deportation case. So it really makes all the difference
43:14
Speaker 5: in the world whether you're detained or not during these
43:17
Speaker 5: removal proceedings. And what the first Circuit said is, look,
43:22
Speaker 5: the statute says that the people who are subject to
43:26
Speaker 5: this mandatory detention are people who are both applicants for admission.
43:32
Speaker 5: That means anybody who's trying to get legal status. And
43:35
Speaker 5: so of course if you're fighting your deportation, then you
43:38
Speaker 5: are an applicant for admission because you're trying to.
43:40
Speaker 1: Get legal status. So that part check.
43:43
Speaker 5: But then the statute also says seeking admission, and so
43:46
Speaker 5: the government says seeking admission means the same thing as
43:49
Speaker 5: an applicant for mission.
43:50
Speaker 1: They just happen to use different words.
43:53
Speaker 5: But there's this presumption in the law that that's not
43:56
Speaker 5: how it works when there's different words than the same
43:58
Speaker 5: statute they have to mean different things. Otherwise you would
44:02
Speaker 5: not use these different words, you would use the same
44:04
Speaker 5: words over and over again. And so what the foreign
44:08
Speaker 5: nationals who sue in these cases say is that that
44:11
Speaker 5: word seeking.
44:11
Speaker 1: Admission means that you have to be caught in the act.
44:14
Speaker 5: Of trying to cross the border, not ten years later,
44:17
Speaker 5: after you've already crossed the border many years later. And
44:21
Speaker 5: so that's why these courts, many of them, are agreeing,
44:25
Speaker 5: is they're saying, you have to have both of these things.
44:26
Speaker 5: You have to be an applicant for admission, meaning you
44:29
Speaker 5: have to want to be here legally, and you have
44:32
Speaker 5: to be seeking admission when you're apprehended. Then that has
44:35
Speaker 5: to mean two different things, and that means we have
44:37
Speaker 5: to be catching you in the act of crossing the border,
44:39
Speaker 5: not many years later. And so from that standpoint, only
44:44
Speaker 5: two courts have said those mean the same thing. Now
44:47
Speaker 5: you have seven courts who say they need something different,
44:50
Speaker 5: and obviously the Supreme Court's going to look at this
44:52
Speaker 5: and they're going to make the final determination.
44:55
Speaker 2: Do you think if the Supreme Court goes with a
44:57
Speaker 2: textualist reading that they'll agree with the seven circuits who've
45:03
Speaker 2: ruled against the administration.
45:06
Speaker 1: Well, here's the problem.
45:07
Speaker 5: I've now given up and trying to see where things
45:11
Speaker 5: are going in this sense, because I never thought, for
45:15
Speaker 5: the life of me that there would be three votes
45:17
Speaker 5: under the clearest constitutional words of all time to say
45:22
Speaker 5: that birthright citizenship is not a thing, Because I mean,
45:26
Speaker 5: if you ask any Ai Claude Harvey, whoever the co pilot,
45:32
Speaker 5: what do these words mean? They would mean that if
45:35
Speaker 5: you're born here, you're a citizen. No one would dispute that.
45:38
Speaker 5: And yet there were three votes out of dying in
45:40
Speaker 5: the Supreme Court to say that, no, being born here
45:43
Speaker 5: doesn't mean anything. You're still not a citizen. They added
45:46
Speaker 5: all these things that are nowhere in the words of
45:48
Speaker 5: the thing. You have to have at least one parent
45:51
Speaker 5: who's a US citizen or a lawful permanent resident. Even
45:54
Speaker 5: the lawful permanent resident din't even exist. That's a concept
45:57
Speaker 5: that was invented in the nineteen fifties, and they're saying
46:00
Speaker 5: that that has some relevance to anything that was written
46:03
Speaker 5: in the eighteen sixties. And I never would have guessed
46:06
Speaker 5: in a million years that there'd be three votes for that.
46:08
Speaker 1: So the point is, there's at least.
46:09
Speaker 5: Three votes on this cord for this interpretation that seeking
46:15
Speaker 5: admission means the same thing as applicant for.
46:17
Speaker 1: Admission, meaning no bond.
46:20
Speaker 5: And so the question is are there at least two
46:22
Speaker 5: additional votes for that? And how do I know really
46:26
Speaker 5: at the end of the day, because at this point,
46:29
Speaker 5: the only immigration case that Trump has lost in these
46:33
Speaker 5: last two years has been the birthright citizenship case.
46:37
Speaker 1: He hasn't lost any other cases. And so again, if
46:40
Speaker 1: it was claud.
46:41
Speaker 5: AI or co pilot AI or whatever, I think it
46:44
Speaker 5: would be a slam dug case that you have to say,
46:46
Speaker 5: these two things mean different things, so you have to
46:49
Speaker 5: assign meaning to those two things. And that's the textualist reading.
46:54
Speaker 5: But in this new world that we live in, you'd
46:56
Speaker 5: have to say it's fifty to fifty because there's no
46:59
Speaker 5: way to know how this will go.
47:01
Speaker 2: Welcome to my world, Leon, Thanks so much. That's Leon
47:05
Speaker 2: Fresco of Honda Night, and that's it for this edition
47:08
Speaker 2: of The Bloomberg Law Show. Remember you can always get
47:11
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47:14
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47:18
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