Latest / Bloomberg Law / Weekend Law: Trump's $1.8B Fund, Luigi Mangione Evidence & ICE Barred

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Weekend Law: Trump's $1.8B Fund, Luigi Mangione Evidence & ICE Barred · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 2: Has it ever happened that a sitting president sued his
0:13
Speaker 2: own government for ten billion dollars and then directed the
0:16
Speaker 2: settlement of the case and the establishment of a payout fund?
0:20
Speaker 3: Not that I'm aware, But there's a lot of things
0:22
Speaker 3: that President Trump's the first of.
0:23
Speaker 4: Under questioning by Democratic Senator Chris Coons, this week, acting
0:28
Speaker 4: Attorney General Todd Blanche had to admit it was another
0:32
Speaker 4: unprecedented action by President Trump and the Justice Department, the
0:37
Speaker 4: creation of a one point eight billion dollar fund to
0:40
Speaker 4: pay victims of so called government weaponization as part of
0:45
Speaker 4: a settlement to en Trump's thirty billion dollar lawsuit against
0:48
Speaker 4: the IRS, a settlement that was not approved by a judge,
0:53
Speaker 4: And in response to questions from Democratic Senator Chris Van Holland,
0:58
Speaker 4: Blanche wouldn't rule out that rioters who attacked police at
1:02
Speaker 4: the Capitol on January sixth of twenty twenty one could
1:06
Speaker 4: receive payouts from the fund.
1:08
Speaker 3: Well, individuals who assaulted Capitol Hill police officers be eligible
1:12
Speaker 3: for this.
1:12
Speaker 1: Fund well, as it makes plain. Just let me know
1:17
Speaker 1: if they're eligible for the funds. As was made plained yesterday.
1:21
Speaker 1: Anybody in this country is eligible to apply.
1:25
Speaker 4: That was the piece of the deal that seemed to
1:27
Speaker 4: ignite resistance from several Senate Republicans like Tom Tillis.
1:31
Speaker 2: And I think it's irresponsible since the signal, hey, go
1:35
Speaker 2: breach the capital, destroy the building, assault police officers.
1:38
Speaker 1: You may even get compensated for someday.
1:40
Speaker 4: That's absurd, and so Senate Republicans abandoned plans to pass
1:45
Speaker 4: a partisan seventy two billion dollar immigration enforcement package before
1:50
Speaker 4: leaving Washington for a week long Memorial Day break. My
1:54
Speaker 4: guest is constitutional law professor David Souper of Georgetown Law.
1:58
Speaker 5: David, starting with the lawsuit, let alone the settlement.
2:01
Speaker 4: Have you ever seen a lawsuit like this, a sitting
2:04
Speaker 4: president suing part of his government for monetary damages.
2:09
Speaker 6: No, there hasn't, and there have been some pretty compelling
2:13
Speaker 6: cases where you might imagine that happening. You can imagine
2:16
Speaker 6: President Reagan suing for the Secret Service failure to protect
2:20
Speaker 6: him from John Hinckley. You could imagine some president suing
2:24
Speaker 6: for terrible medical care that they receive the estate of
2:27
Speaker 6: President Garfield. Perhaps, but this is an example of norms collapsing.
2:34
Speaker 6: Every president previously, even ones who allowed much more independence
2:39
Speaker 6: of the Justice Department than President Trump does, understood that
2:44
Speaker 6: it would be grossly inappropriate for them to sue a
2:48
Speaker 6: Justice department that reported to them.
2:50
Speaker 4: So basically, the same person is controlling both sides of
2:54
Speaker 4: the lawsuit. The plaintiff and the defendant are Donald Trump.
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Speaker 6: Yes, this is textbook example of collusive litigation, when there's
3:03
Speaker 6: no adversity, when no claims a fact or law are
3:08
Speaker 6: checked by anybody with a contrary interest, where they're all
3:13
Speaker 6: agreeing together. It's a settlement agreement between Donald Trump's private
3:18
Speaker 6: lawyers and Donald Trump's Justice Department lawyers. And the Supreme
3:22
Speaker 6: Court has said that you cannot invoke the power of
3:25
Speaker 6: the federal courts on a collusive case. The federal courts
3:28
Speaker 6: are only there to resolve genuinely adverse controversies, which this
3:33
Speaker 6: is not.
3:34
Speaker 4: And this was settled before they were scheduled to go
3:37
Speaker 4: to court to explain to a judge how their lawsuit
3:41
Speaker 4: presented a case or controversy.
3:44
Speaker 6: Yeah, they're really trying to have it both ways. They
3:47
Speaker 6: settled it in a big hurry to avoid having to
3:51
Speaker 6: explain to the courts why this could be a case
3:55
Speaker 6: because they can't, so they make the case go away
3:58
Speaker 6: before the judge can dismiss it for lack of jurisdiction.
4:02
Speaker 6: But they use the fact that this case was here
4:05
Speaker 6: as a justification for this settlement, which provides a slush
4:10
Speaker 6: fund for whomever President Trump wants to serve.
4:14
Speaker 4: The Justice Department has already been approving seven figure payouts
4:19
Speaker 4: from the judgment fund for some Trump allies who claim
4:23
Speaker 4: they were wrongfully investigated or prosecuted during the Biden administration.
4:28
Speaker 4: For example, one point two five million to former Trump
4:32
Speaker 4: National security advisor Michael Flynn. So that's already going on.
4:36
Speaker 4: How is this fund different?
4:38
Speaker 6: This is different because it isn't paying damages. I would
4:44
Speaker 6: be terribly offended if President Trump ordered the fund to
4:47
Speaker 6: pay him some large sum of money. That would be
4:51
Speaker 6: another example of abuse of the fund inclusive litigation. But
4:55
Speaker 6: this goes much farther. This is basically taking away the
4:59
Speaker 6: power the purse from Congress. It is creating a whole
5:03
Speaker 6: new program that Congress never authorized, that Congress never appropriated
5:08
Speaker 6: a dime for, and creating it entirely within the executive
5:13
Speaker 6: branch to spend tax dollars.
5:16
Speaker 4: They're saying that there is going to be a committee,
5:18
Speaker 4: but the president can fire anyone he wants on the committee.
5:22
Speaker 4: I mean, are there any safeguards in place?
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Speaker 6: Absolutely none. This is at one hundred percent slush fund.
5:28
Speaker 6: The President or the Attorney General will appoint, without Senate confirmation,
5:33
Speaker 6: all five members of this committee. If any of them
5:36
Speaker 6: do anything the President doesn't like, he can fire them
5:39
Speaker 6: and replace them with whomever he wants. So the committee
5:43
Speaker 6: is completely subservient to the president on both a macrell
5:47
Speaker 6: and a micro level. So this is allowing the president
5:52
Speaker 6: to distribute one point seven seven six billion dollars to
5:57
Speaker 6: whomever he wants based on whatever they want. These are
6:01
Speaker 6: people who have no evidence that they were innocent, have
6:06
Speaker 6: no evidence of prosecutorial misconduct. None of that's required here.
6:10
Speaker 6: We're simply paying them because they are on Team Trump.
6:13
Speaker 4: Tell us the reasons why you think this settlement is unlawful.
6:18
Speaker 6: Article one of our Constitutions says that no money shall
6:21
Speaker 6: be drawn from the Treasury except where Congress has enacted
6:26
Speaker 6: and appropriation, and the Anti Deficiency Act, which goes back
6:30
Speaker 6: over one hundred years, gives teeth to that and makes
6:34
Speaker 6: it a federal crime with two years in prison if
6:37
Speaker 6: you distribute federal funds without a valid appropriation. This is
6:44
Speaker 6: an attempt to circumvent that. They're claiming they can use
6:47
Speaker 6: the Judgment Fund, which is an appropriation, but it's four
6:52
Speaker 6: settlements arrived at in accordance with law, and one provision
6:57
Speaker 6: of federal law says you cannot obtain the juri station
7:00
Speaker 6: of the federal courts collusively. Another provision of federal law
7:04
Speaker 6: says that federal lawyers have to follow the same ethical
7:07
Speaker 6: rules that apply in their states, and those rules prohibit
7:13
Speaker 6: collusive litigation. So the very fact that this case is
7:16
Speaker 6: Donald Trump versus Donald Trump means that it is not
7:20
Speaker 6: eligible to be settled under the Judgment Fund.
7:23
Speaker 4: On Wednesday, two Capital Police officers, Harry Dunn and Daniel Hodges,
7:29
Speaker 4: who responded to the riots on January sixth, suit to
7:33
Speaker 4: block the creation of this fund. Although Doune admits that
7:36
Speaker 4: it will be challenging.
7:38
Speaker 7: They are potentially going to be paying insurrectionists or people
7:41
Speaker 7: who have participated in insurrection, which is clearly a violation
7:46
Speaker 7: to the Constitution. So we do understand that it might
7:50
Speaker 7: be an uphill fight, but we do believe there's validity
7:52
Speaker 7: in it.
7:53
Speaker 4: Their first challenge will be proving that they have standing
7:56
Speaker 4: to bring the lawsuit explain the standing issues.
8:00
Speaker 6: I don't think there's a serious question that the fund
8:04
Speaker 6: is illegal, but the Supreme Court has said just because
8:08
Speaker 6: something is illegal or even unconstitutional, you don't get to
8:11
Speaker 6: go into court to challenge it. The Supreme Court requires
8:15
Speaker 6: what they call injury. In fact, you have to show
8:19
Speaker 6: that you are harmed in a way other than a
8:22
Speaker 6: person who cares about the Constitution. And the police officers
8:27
Speaker 6: are saying that this money is being made available to
8:31
Speaker 6: the people who assaulted them before and who are actively
8:36
Speaker 6: threatening them, and who could well assault them again in
8:42
Speaker 6: the same way, and so that this is encouraging and
8:46
Speaker 6: arguably even subsidizing violent behavior against them, which gives them
8:51
Speaker 6: standing to challenge it.
8:53
Speaker 4: That sounds really speculative. Do you think the suit will
8:57
Speaker 4: get past a motion to dismiss I.
8:59
Speaker 6: Think the Supreme Court has been cutting way back on
9:03
Speaker 6: standing and it's hard for me to see them deviating
9:08
Speaker 6: from that course in a case that would embarrass the president.
9:12
Speaker 6: But I think this is better than a lot of
9:16
Speaker 6: far fetched standing cases because they're not saying something bad
9:22
Speaker 6: happened to us in the past, and so we want
9:25
Speaker 6: to litigate the future. They're saying that both the beneficiaries
9:30
Speaker 6: of these funds and the administration that's handing them out
9:33
Speaker 6: are saying that the assault on the police officers was okay.
9:38
Speaker 6: These people have been pardon The President has repeatedly said
9:41
Speaker 6: they were treated very badly for being prosecuted in this manner.
9:45
Speaker 6: And so I think the police officers can make an
9:49
Speaker 6: argument of an ongoing abuse better than most people do.
9:54
Speaker 4: And it looks like the lawsuits will keep coming. On
9:57
Speaker 4: Friday at January sixth, prosecutor who was fired by former
10:02
Speaker 4: Attorney General Pam Bondi and a law professor who was
10:05
Speaker 4: acquitted in a federal criminal case brought by this Justice
10:09
Speaker 4: Department also sued to block the fund. How about a
10:13
Speaker 4: suit by taxpayers?
10:15
Speaker 6: The Supreme Court could entertain a lawsuit that this is unconstitutional.
10:20
Speaker 6: The Supreme Court held many years ago that the only
10:23
Speaker 6: way to enforce the establishment clause that prohibits government from
10:27
Speaker 6: funding religion is to allow individual taxpayers to sue that
10:32
Speaker 6: their moneys are being inappropriately spent. They could say absolutely
10:36
Speaker 6: the same thing about the appropriation's clause. But given how
10:39
Speaker 6: cooperative this Supreme Court has been with the President, I
10:43
Speaker 6: don't see that very likely.
10:44
Speaker 4: Many say that Todd blanche is trying his best to
10:48
Speaker 4: be the attorney general that Trump wants. He indicted former
10:52
Speaker 4: FBI director James Comy and the Southern Poverty Law Center
10:56
Speaker 4: on flimsy charges. This week alone. He indicted former Cuban
11:00
Speaker 4: President Raoul Castro in what appears to be a show indictment.
11:04
Speaker 4: And then you have this unprecedented fund.
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Speaker 6: They have been for some time taking advantage of the
11:12
Speaker 6: Supreme Court's restrictions on access to federal court to do
11:16
Speaker 6: things that are not legally defensible, but where they won't
11:19
Speaker 6: be forced to defend themselves in court because the Supreme
11:22
Speaker 6: Court disallows the challenges. So the notion of doing something
11:27
Speaker 6: that's unlawful but unlitigable is actually old news for these people.
11:33
Speaker 6: They didn't put together something that's legal here. They actually
11:37
Speaker 6: misdrafted the papers. So this isn't really eligible for payment
11:41
Speaker 6: from the judgment fund because the amount that is specified
11:45
Speaker 6: in the press release is not in the settlement papers.
11:49
Speaker 6: So you can't say that they have to draw one
11:52
Speaker 6: point seven seven to six billion from the judgment fund
11:56
Speaker 6: to settle the case, because on the terms they settle
11:59
Speaker 6: it for or one dollar would suffice everything above. That
12:03
Speaker 6: is Todd Blanche giving a gift to his boss, probably
12:07
Speaker 6: in the hopes of getting the word acting knocked off
12:09
Speaker 6: of his title.
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Speaker 4: Oh, he's a pleasure, Thanks David. That's Professor David super
12:14
Speaker 4: of Georgetown Law. You're listening to Bloomberg. It was a
12:18
Speaker 4: critical motion on the evidence that the prosecution will be
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Speaker 4: able to use at Luigi Mangioni's trial for the killing
12:25
Speaker 4: of United Healthcare CEO Brian Thompson.
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Speaker 8: So as to the map issues, I find that the
12:32
Speaker 8: search of the backpack at the McDonald's was improper warrantless search,
12:38
Speaker 8: that the backpack was not within the mediate control or
12:42
Speaker 8: gravable area of the defendant, and further, the people failed
12:46
Speaker 8: to demonstrate exeggen circumstances. Therefore, those items found in the
12:51
Speaker 8: backpack during the search at the McDonald's will be suppressed.
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Speaker 4: The defense one in part when Judge Gregory Caro excluded
13:00
Speaker 4: from evidence the items police found when they were searching
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Speaker 4: Mangioni's backpack before arresting him at a McDonald's in Altoona, Pennsylvania.
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Speaker 4: A loaded handgun, magazine, a cell phone, a passport, a wallet,
13:13
Speaker 4: and a computer. Chip, but there was a big However, however.
13:18
Speaker 8: The people have established that the subsequent search of the
13:21
Speaker 8: backpack at the station was a valid inventory search, and
13:25
Speaker 8: therefore the items recovered at the station.
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Speaker 4: Will not be suppressed, and those items that can be
13:33
Speaker 4: introduced into evidence are crucial to the prosecution's case, including
13:38
Speaker 4: the alleged murder weapon, a nine millimeter handgun, and a
13:42
Speaker 4: notebook that describes wanting to quote whack. A health insurance executive.
13:48
Speaker 4: Joining me is former federal prosecutor Robert Mintz, a PARTNERM Carter.
13:52
Speaker 4: In English, Bob, give us the background for this motion. Bob,
13:56
Speaker 4: give us the background here.
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Speaker 3: To set the stage here, Police police responded to a
14:01
Speaker 3: McDonald's in Altuna, Pennsylvania, after receiving a call about a
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Speaker 3: suspicious person who looked like the alleged shooter of United
14:12
Speaker 3: Healthcare CEO Brian Thompson. Local police showed up and began
14:17
Speaker 3: questioning mister Mangioni and later searched his backpack.
14:21
Speaker 1: The focus of.
14:22
Speaker 3: The hearing was whether or not the evidence discovered by
14:27
Speaker 3: local police in the search of the backpack would be
14:30
Speaker 3: admissible at trial.
14:32
Speaker 4: And the defense claimed that the police needed a warrant
14:36
Speaker 4: before they could search.
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Speaker 3: Yeah, So this is really interesting because it was a
14:40
Speaker 3: critical hearing for the defense. Should the defense succeed here
14:45
Speaker 3: and should the court have ruled that the evidence that
14:48
Speaker 3: was later found in Luigi Mangiono's backpack would be excluded
14:52
Speaker 3: a trial, it would have been a huge setback for prosecutors.
14:55
Speaker 3: There was an enormous amount at stake here for both sides.
14:59
Speaker 3: The defense argued in a days long hearing last December
15:03
Speaker 3: that the evidence in the backpack should be thrown out
15:06
Speaker 3: because police searched the backpack without a warrant. They said
15:10
Speaker 3: that basically police did not follow proper protocol, that he
15:14
Speaker 3: posed no threat to them at the time, and that
15:16
Speaker 3: there was no basis to search the backpack. And the
15:19
Speaker 3: fact is that a warrant was not obtained for the
15:22
Speaker 3: search of that backpack until seven hours after mister Mangioni was.
15:26
Speaker 5: In custody and tell us about the judge's ruling.
15:29
Speaker 3: So the judge ultimately issued a mixed ruling which was
15:33
Speaker 3: largely a victory for prosecutors but also gave some small
15:38
Speaker 3: victory to the defense. The judge ruled that prosecutors could
15:42
Speaker 3: use certain evidence that was seized at an.
15:45
Speaker 1: Inventory search later at.
15:47
Speaker 3: The police station, but could not allow evidence that they
15:51
Speaker 3: seized during a search at the McDonald's. Basically, the judge
15:55
Speaker 3: decided that the search at the McDonald's that was conducted
15:59
Speaker 3: while they were sing mister Mangoni was an illegal, improper
16:03
Speaker 3: warrantless search. The prosecution tried to argue that local police
16:08
Speaker 3: searched the backpack at the McDonald's for public safety reasons,
16:12
Speaker 3: but the judge did not accept that, saying that the
16:14
Speaker 3: backpack had been moved out of mister Mangoni's reach and
16:18
Speaker 3: no longer posed any public health or safety issue.
16:22
Speaker 1: And therefore that search was not permitted.
16:25
Speaker 3: There was a subsequent search after mister Mangoni was arrested
16:29
Speaker 3: and brought to the police station. That was an inventory search,
16:32
Speaker 3: in other words, a search that was done in connection
16:35
Speaker 3: with going through the belongings of somebody who was then
16:39
Speaker 3: under arrest. An items seized during that inventory search, the
16:43
Speaker 3: judge said, would be permitted to be used by prosecutors
16:47
Speaker 3: at the trial.
16:48
Speaker 4: Why did it take police seven hours to get a
16:51
Speaker 4: search warrant? They'd arrested him and concluded that he was
16:54
Speaker 4: the suspect wanted in the shooting at the McDonald's well.
16:59
Speaker 3: Once they arrested him, and they certainly could have obtained
17:02
Speaker 3: a warrant based upon evidence that they had. Mister Mangoni
17:06
Speaker 3: had presented a false identification and there was other evidence
17:09
Speaker 3: that tied him to the crime, and prosecutors could have
17:12
Speaker 3: gotten a warrant, but waited and instead local police searched
17:18
Speaker 3: the backpack in connection with his inventory and the judge
17:21
Speaker 3: allowed it in. That would have been a major blow
17:24
Speaker 3: to the prosecution if that evidence was excluded, but in
17:28
Speaker 3: this case, the judge excluded, for example, a loaded magazine,
17:32
Speaker 3: a passport, a wallet, a cell phone, and a computer chip.
17:36
Speaker 3: All of those items were taken from mister Mangoni's backpack
17:40
Speaker 3: at the McDonald's. But the big victory here for prosecutors
17:44
Speaker 3: was at the subsequent search back at the police station.
17:47
Speaker 3: They found a gun allegedly the weapon used to shoot
17:52
Speaker 3: the victim here, and also a notebook that contained, according
17:56
Speaker 3: to prosecutors, mister Mangon's manifesto. This is where he has
18:00
Speaker 3: writings where he goes on about national health care and
18:04
Speaker 3: about how insurance companies are doing damage to people by
18:08
Speaker 3: delaying and denying them coverage. This is really the critical
18:12
Speaker 3: piece of evidence because it goes to his intent, it
18:15
Speaker 3: goes to a state of mind. And there's no question
18:17
Speaker 3: the prosecutors will be relying largely on that notebook and
18:22
Speaker 3: on what they will allege is the murder weapon itself
18:25
Speaker 3: when this case goes to trial.
18:26
Speaker 4: Why do you think the federal judge, who look at
18:29
Speaker 4: the same circumstances, decide to let everything in.
18:32
Speaker 1: Yeah, that's a good question.
18:33
Speaker 3: The federal judge allowed everything in. As you said, there
18:36
Speaker 3: was nothing that was suppressed by the federal judge in
18:38
Speaker 3: the second trial. But the State Cork judge here, I
18:41
Speaker 3: think was somewhat troubled by what went on at the McDonald's,
18:46
Speaker 3: and I think here, when you look at the decision
18:48
Speaker 3: by the State Cork judge, he put great weight on
18:51
Speaker 3: the fact that the police officers began to search through
18:55
Speaker 3: the backpack and when they found the gun magazine, they
18:58
Speaker 3: immediately stopped. We also found the notebook, but allegedly did
19:02
Speaker 3: not look in to see what the writings were. But
19:04
Speaker 3: they stopped searching at that point, and the court seemed
19:07
Speaker 3: to give certain way to the fact that they held
19:10
Speaker 3: off searching at that point and then did not continue
19:12
Speaker 3: to search until mister Mangoni was in custody back at
19:16
Speaker 3: the police station, and then the search was done in
19:18
Speaker 3: an inventory search, not at a search incident to arrest
19:22
Speaker 3: at the McDonald's.
19:24
Speaker 4: So defense attorneys often, I don't know always, but very
19:29
Speaker 4: often make motions to have evidence suppressed. Have you ever
19:32
Speaker 4: seen a case where the judge was, I don't know,
19:35
Speaker 4: gutsy enough to throw out all the evidence from a
19:38
Speaker 4: tainted search.
19:39
Speaker 5: I mean, it.
19:40
Speaker 4: Seems like these are just uphill battles, no matter what
19:43
Speaker 4: the facts are.
19:44
Speaker 1: Well, they are uphill battles.
19:45
Speaker 3: And you're absolutely right that this is the type of
19:48
Speaker 3: motion that is made.
19:50
Speaker 1: In every criminal case.
19:51
Speaker 3: Whenever there is a search, whether it's done by search
19:54
Speaker 3: warrant or a search incident to arrest, and evidence is
19:57
Speaker 3: obtained as.
19:58
Speaker 1: A result of that search that critical to.
20:00
Speaker 3: The prosecution, the first thing defense lawyers are going to
20:03
Speaker 3: do is to try to suppress that evidence, because if
20:06
Speaker 3: that evidence doesn't come in at trial in certain cases,
20:10
Speaker 3: it can be very difficult for prosecutors to make their case.
20:14
Speaker 3: This case, given all the notoriety and the publicity surrounding it,
20:18
Speaker 3: put enormous weight on the court in making a decision,
20:21
Speaker 3: because a judge would he put in a difficult circumstance
20:25
Speaker 3: if they rule to suppress key evidence in a case
20:28
Speaker 3: like this where there's so much publicity. But in this
20:30
Speaker 3: case the stake where judge certainly spent a long time.
20:33
Speaker 3: There was extensive hearing, there were days of testimony. They
20:36
Speaker 3: judged that through hours and hours of bodycam video footage
20:40
Speaker 3: and her testimony from many law enforcement officers on the
20:44
Speaker 3: scene at the time of the arrest. So they judge
20:46
Speaker 3: spent a considerable amount of time considering this, and then
20:48
Speaker 3: it took him months to finally render a decision on this.
20:52
Speaker 1: But at the end of the day, while he gave.
20:54
Speaker 3: Some small victory to the defense, he did largely rule
20:58
Speaker 3: in favor of the prosecution.
20:59
Speaker 1: And if you're the prosecutor.
21:01
Speaker 3: And you have the alleged murder weapon and you have
21:03
Speaker 3: the NOPA containing the alleged manifesto, you're feeling pretty good
21:07
Speaker 3: about your chances of conviction at the end of a trial.
21:10
Speaker 4: Let's talk about the statements Mangioni made to police at
21:13
Speaker 4: the McDonald's that the defense wanted suppressed, and Judge Carol
21:18
Speaker 4: also pars those down to the minute, using the officer's
21:22
Speaker 4: bodycam footage.
21:23
Speaker 8: As Miranda warnings were not given until some seconds after.
21:28
Speaker 9: Nine forty eight in the morning.
21:30
Speaker 8: Those statements made shortly before that in response to improper
21:35
Speaker 8: custodial questions that were not merely a request for pedigree
21:40
Speaker 8: information will be suppressed.
21:43
Speaker 5: Explain his decision, Bob.
21:45
Speaker 3: After hearing extensive testimony from law enforcement about the circumstances
21:50
Speaker 3: surrounding the arrest and the context in which those statements
21:54
Speaker 3: were made. In other words, were they made before or
21:56
Speaker 3: after the witness was given as Miranda warnings before after
22:00
Speaker 3: the witness was in custody, and the court ultimately decided
22:03
Speaker 3: that statements made by mister Mangioni at the McDonald's before
22:07
Speaker 3: he was actually in custody were going to be allowed.
22:11
Speaker 3: But he did find that once he decided to no
22:14
Speaker 3: longer talk with law enforcement, that law enforcement should have
22:18
Speaker 3: stopped questioning him, and statements he made in response to
22:21
Speaker 3: that questioning.
22:22
Speaker 1: After he was in custody will not be primitted at
22:24
Speaker 1: the trial.
22:25
Speaker 4: Some of the statements that will be suppressed include an
22:28
Speaker 4: officer asking Mangioni why he had lied about his name
22:32
Speaker 4: and whether he had a fake ID. The defense so
22:35
Speaker 4: far has focused, at least in court on the suppression
22:39
Speaker 4: of evidence. We don't know what kind of defense they'll
22:42
Speaker 4: mount at trial, but do you think that dury nullification
22:46
Speaker 4: will be part of it.
22:48
Speaker 3: Well, there's a huge difference between being a prosecutor and
22:51
Speaker 3: being a defense lawyer. Prosecutors have the burden of proof.
22:55
Speaker 3: It's beyond a reasonable doubt. It's the highest standard in
22:57
Speaker 3: our legal system, and so there our job is to
23:01
Speaker 3: present overwhelming evidence that the defendant is guilty. The defense,
23:05
Speaker 3: on the other hand, doesn't have to present anything. They
23:08
Speaker 3: don't have to present any witnesses. They have no burden
23:10
Speaker 3: of proof whatsoever. And so what they will typically do
23:14
Speaker 3: is not necessarily present a counter narrative, in other words,
23:18
Speaker 3: a different version of events, but they will try to
23:22
Speaker 3: poke holes in the government's case. And so what they'll
23:24
Speaker 3: do is they'll see the way the case goes into trial,
23:27
Speaker 3: They'll cross examine the government's witnesses, and if they can
23:30
Speaker 3: find any area where the government may have a weakness,
23:33
Speaker 3: they try to exploit that and ultimately argue to the
23:37
Speaker 3: jury that there's reasonable doubt here that the government has
23:40
Speaker 3: not met its burden. So I suspect what will happen
23:43
Speaker 3: here is that the defense will be largely based on
23:47
Speaker 3: the government's not meeting its burden of proof. But at
23:50
Speaker 3: the same time, I think we can certainly expect the
23:53
Speaker 3: undercurrents of a jury nullification argument, and that is basically
23:57
Speaker 3: arguing to jurors that even if the defendant committed the crime,
24:02
Speaker 3: you shouldn't convict him for some other reason. It's not
24:06
Speaker 3: a legal defense, it's more of an emotional reaction by jurors.
24:11
Speaker 3: And this case has already generated a ground spoil of
24:14
Speaker 3: support for Luigi Mangioni, which is surprising because of the
24:18
Speaker 3: position he allegedly took with regard to healthcare in this country,
24:23
Speaker 3: and specifically with regard to health insurers. So I think
24:26
Speaker 3: you can expect to see the defense play that card
24:29
Speaker 3: and play that up at trial in the hopes that
24:32
Speaker 3: at least one member of the jury may be sympathetic
24:36
Speaker 3: to him and to his cause and to be willing
24:39
Speaker 3: to overlook some of the evidence that prosecutors have at trial,
24:43
Speaker 3: and if they can get even one juror to agree
24:45
Speaker 3: with them, lay will at least get a mistrial and
24:48
Speaker 3: prosecutors will have to try the case all over again.
24:51
Speaker 4: His trial is set to begin on September eighth, thanks
24:54
Speaker 4: so much, Bob, that's Robert Mens of McCarter and English.
25:00
Speaker 4: For decades, ICE refrained from making civil arrests at immigration courthouses,
25:06
Speaker 4: but that changed in May of twenty twenty five, when
25:09
Speaker 4: ICE issued a new policy that allowed agents to arrest
25:12
Speaker 4: non citizens as they were appearing for scheduled hearings. The
25:16
Speaker 4: policy led to protests and some ugly scenes at immigration
25:21
Speaker 4: courts in Manhattan, like the handcuffing and arrest of New
25:24
Speaker 4: York City comptroll Or Brad Lander in the hallway outside
25:28
Speaker 4: a courtroom as he was trying to escort a migrant
25:31
Speaker 4: whose case had just been dismissed last November.
25:40
Speaker 10: Arrest citizens, Sir, you don't have the authority to arrest
25:44
Speaker 10: whos citizens.
25:47
Speaker 9: You don't have standing right here in the hallway. I
25:50
Speaker 9: asked to see that. You never learn.
25:52
Speaker 4: Lander was later released and all charges against him were dropped.
25:56
Speaker 4: That scene will not be revisited in New York City
26:00
Speaker 4: now that a federal judge has ruled that the three
26:02
Speaker 4: immigration courthouses in Manhattan are off limits to ICE officers
26:07
Speaker 4: making arrests. My guest is Leon Fresco, a partner at
26:11
Speaker 4: Holland and Knight and the former head of the Office
26:13
Speaker 4: of Immigration Litigation in the Obama administration, Leon tell Us
26:17
Speaker 4: about Judge Costell's order temporary order pending the outcome of
26:22
Speaker 4: litigation that challenges ICE's policy of making arrests at immigration courts.
26:28
Speaker 10: So, the current state of affairs in New York City is,
26:31
Speaker 10: if you go to one of the immigration court houses
26:34
Speaker 10: in New York City, ICE is not allowed to arrest
26:38
Speaker 10: you unless you either have serious offenses in terms of
26:42
Speaker 10: a criminal history, or you have a final order of removal,
26:46
Speaker 10: or you're a national security or public safety risk.
26:50
Speaker 9: And so this all comes from.
26:52
Speaker 10: The idea that people were being deterred from going into
26:56
Speaker 10: Immigration court to have their immigration hearings because they were
27:00
Speaker 10: worried that ICE was going to arrest them when they
27:03
Speaker 10: were to show up at.
27:04
Speaker 9: The immigration court.
27:06
Speaker 10: Because that was actually happening during the time period where
27:10
Speaker 10: there was the arrest quota three thousand people a day.
27:14
Speaker 10: Arresting three thousand people a day is not so easy,
27:17
Speaker 10: and so a lot of the places where people were
27:19
Speaker 10: getting arrested were the places where they were most likely
27:23
Speaker 10: to be, which were at ICE check ins and immigration court.
27:27
Speaker 9: So you knew people were going there.
27:29
Speaker 10: But the point was you didn't want to deter people
27:31
Speaker 10: from going there because those were the key points of
27:35
Speaker 10: the throughput of the immigration system.
27:38
Speaker 4: But previously, in September, Judge Castell had refused to stop
27:43
Speaker 4: ICE arrests at courthouses.
27:45
Speaker 10: So this judge had originally not wanted to enjoin ICE
27:51
Speaker 10: from arresting people in immigration court because the government had
27:56
Speaker 10: made the argument previously that there was an ICE guidance
28:00
Speaker 10: that was issued on May twenty seven, twenty twenty five,
28:04
Speaker 10: that actually allowed them to do this, so that they
28:07
Speaker 10: had considered the matter, they had reviewed it, they investigated it,
28:11
Speaker 10: and they said yes, so according to this memo, we can.
28:14
Speaker 9: Arrest people at immigration court.
28:17
Speaker 10: And so the judge said, well, look, you had a
28:19
Speaker 10: policy basis for conducting these arrests. I'm not going to
28:22
Speaker 10: enjoin them. But then just recently the Department of Justice
28:26
Speaker 10: actually went back to the court and said to the court,
28:31
Speaker 10: sorry about that. You remember when we told you that
28:33
Speaker 10: we had a memo that considered the need to go
28:37
Speaker 10: to immigration courts and have arrest just kidding, We didn't
28:40
Speaker 10: actually have a memo like that. It didn't actually apply
28:44
Speaker 10: to immigration courts until We're sorry. And so because there
28:48
Speaker 10: was no memo that actually considered this issue.
28:51
Speaker 9: Then the judge said, well, then.
28:52
Speaker 10: You clearly didn't use your obligations under the Administrative Procedure
28:57
Speaker 10: Act to actually consider this.
28:59
Speaker 9: I'm not I'll let you do this while the case
29:02
Speaker 9: is pending.
29:02
Speaker 10: I think the judge probably more frustrated about how this
29:06
Speaker 10: was done rather than the state of actual law. But
29:10
Speaker 10: because of the sort of I don't know whether you
29:12
Speaker 10: want to call it omission or whatever you want to
29:14
Speaker 10: call it, the judge said, no more arrest and immigration
29:18
Speaker 10: courts in New York while this case is pending.
29:21
Speaker 4: Yeah, I mean that was a startling admission by the
29:24
Speaker 4: US Attorney's office, and basically they blamed it on Ice.
29:28
Speaker 4: So the judge said that a revision in his order
29:31
Speaker 4: was needed to correct a clear error and prevent a
29:34
Speaker 4: manifest injustice. Was it a legal error by Ice that
29:39
Speaker 4: caused that to happen?
29:41
Speaker 10: I don't know exactly, but I actually have a theory, June,
29:44
Speaker 10: because I was involved in this for many years at
29:47
Speaker 10: the Department of Justice, and so.
29:48
Speaker 9: Here's what happens.
29:49
Speaker 10: Ice coordinates extremely well with the Department of Justice. When
29:54
Speaker 10: the cases are pretty much in any district outside of
29:58
Speaker 10: New York City, because those are all handled by the
30:02
Speaker 10: Department of Justice Civil Division, opposite of immigration litigation where
30:06
Speaker 10: I was dead, and so everything could be coordinated. But
30:09
Speaker 10: in New York, it's a joke called the Sovereign District
30:12
Speaker 10: of New York that you don't tell the US attorneys
30:15
Speaker 10: there what to do. They don't listen to anything going
30:18
Speaker 10: on in Washington. They do their own thing. So as
30:22
Speaker 10: a result of that, they have to correspond with ICE.
30:26
Speaker 10: And it's not clear who if I start corresponding with
30:29
Speaker 10: a New York person, some random person in DC who's
30:33
Speaker 10: not in the know, And so many times you would
30:35
Speaker 10: see I would call this one of the achilles heels
30:38
Speaker 10: or weaknesses of the entire litigation platform of the Department
30:44
Speaker 10: of Justice is if you suit in New York, you'd
30:47
Speaker 10: have a completely different strategy, case approach. Whatever you're doing
30:51
Speaker 10: in New York doesn't apply anywhere else, And so you
30:53
Speaker 10: almost have these two random, completely different things going on.
30:58
Speaker 10: And so it's very easy, and that's any for the
31:01
Speaker 10: US Attorney's Office in New York to not actually know
31:04
Speaker 10: anything about what's going on in ICE and just be
31:06
Speaker 10: told by some ICE New York person. Oh yeah, this
31:09
Speaker 10: memo covers Immigration Court. That's not a surprising scenario.
31:13
Speaker 4: When I hear it, the judge was surprised.
31:16
Speaker 10: Yes, well, the judge, your viewers are getting inside knowledge
31:20
Speaker 10: here in terms of very few people understand this disconnect
31:24
Speaker 10: that goes on.
31:24
Speaker 9: Between New York and the rest of the country.
31:26
Speaker 10: So the judge is not going to understand why the
31:29
Speaker 10: Department of Justice written large, because that's all the judge
31:32
Speaker 10: knows is this is the Department of Justice doesn't have
31:35
Speaker 10: the correct information. Since this is the government, so the
31:39
Speaker 10: government quote unquote should have the correct information. But as
31:43
Speaker 10: we all know, there's not one government. There's a lot
31:45
Speaker 10: of people in the government, and depending on who you
31:48
Speaker 10: talk to in the government, you might hear something that's
31:50
Speaker 10: not correct. And so while this shouldn't happen and it's
31:55
Speaker 10: not something trivial, it's something I'm not surprised to hear
31:59
Speaker 10: has occurred, because that's the kind of thing that unless
32:02
Speaker 10: and until one day the US Attorney's Office in New
32:05
Speaker 10: York actually wants to let their immigration cases get handled
32:09
Speaker 10: by the National Civil Division so that all the immigration
32:13
Speaker 10: cases are handled harmoniously, you're going to get potential situations
32:17
Speaker 10: like this.
32:18
Speaker 4: So the judge handed down the decision on Monday. On Tuesday,
32:22
Speaker 4: ICE violated the order. They arrested a twenty one year
32:26
Speaker 4: old Honduran at twenty six Federal Plaza, which is one
32:29
Speaker 4: of the three immigration courthouses in Manhattan that the judge
32:33
Speaker 4: had ruled were off limits for arrests, and according to
32:37
Speaker 4: The New York Times, a man who worked with the
32:39
Speaker 4: Immigration Assistance Program tried to hand the ICE officers a
32:43
Speaker 4: copy of the decision and they refused to take it,
32:47
Speaker 4: and one told him that the agency didn't care. Is
32:51
Speaker 4: that just a blatant violation of a court order?
32:53
Speaker 10: Again, I don't want to give excuses. I just want
32:58
Speaker 10: to say sort of how these things work. So a
33:00
Speaker 10: judge issues an order on a Monday, and on a
33:04
Speaker 10: Tuesday there's an arrest. It's not like ICE is some
33:09
Speaker 10: integrated artificial intelligence system where every human being is plugged
33:14
Speaker 10: in and suddenly knows all of America's case law instantaneously
33:19
Speaker 10: when that case law is introduced. So what happens is
33:23
Speaker 10: ICE clearly isn't implementing this memo with sufficient rapidity. And
33:29
Speaker 10: you had an officer who probably on Monday already knew
33:33
Speaker 10: I'm going to arrest this individual because you know, they
33:36
Speaker 10: say that they're a dangerous gang member.
33:38
Speaker 9: Who knows if this is.
33:39
Speaker 10: True or not, I don't know, But if they really
33:42
Speaker 10: think they have a dangerous gang member in their sights,
33:44
Speaker 10: all the better for them to arrest this person to
33:47
Speaker 10: make sure that they're not walking around. But it turns
33:50
Speaker 10: out that they don't know the court order. Then people
33:53
Speaker 10: tell them the court order. The problem from the perspective
33:56
Speaker 10: of the government is just people randomly handing and I
33:59
Speaker 10: say a court order. That ICE agent isn't an attorney.
34:03
Speaker 10: What they know about the law is sort of within
34:05
Speaker 10: their training materials, and so it's very complicated because they're
34:10
Speaker 10: not just going to read a court order and know
34:12
Speaker 10: the significance of what that court order is, what it's
34:15
Speaker 10: telling them to do. So you ended up with this
34:18
Speaker 10: very unfortunate situation, and probably there will be content hearings
34:23
Speaker 10: about it, but just another set of facts of I
34:26
Speaker 10: get how it led to this. It shouldn't have led
34:28
Speaker 10: to this. There's no excuse for it. It's a violation
34:32
Speaker 10: of the court order. But you can understand how these
34:36
Speaker 10: ICE agents who are not attorneys, are given very specific
34:39
Speaker 10: guidance you can only do XYZ. They continue to operate
34:44
Speaker 10: as they've been operating, and nothing will deter them from
34:48
Speaker 10: their orders until the same person who gave them their
34:51
Speaker 10: prior order gives them a new order.
34:53
Speaker 4: And I should note that in their petition the lawyers
34:57
Speaker 4: for the man who was arrested said he'd never been
34:59
Speaker 4: conc of a crime. Let's turn out to the underlying
35:02
Speaker 4: case before Judge Castell, which is a lawsuit by two
35:06
Speaker 4: New York based nonprofits challenging the Trump administration guidance that
35:13
Speaker 4: broadens the circumstances in which civil immigration arrests can be
35:17
Speaker 4: made in or near a courthouse and rolls back Biden
35:21
Speaker 4: error guidance restricting courthouse arrests, and the judge is found
35:25
Speaker 4: that there's a substantial likelihood of showing that the arrest
35:29
Speaker 4: policy is arbitrary and capricious. What's your take on how
35:33
Speaker 4: successful this challenge will be.
35:36
Speaker 9: Well, I think it's going to be tough.
35:38
Speaker 10: These lawsuits have been filed all around the country and
35:41
Speaker 10: nobody's been able to get an injunction that is of
35:44
Speaker 10: any significant ump to it that has really stopped this.
35:48
Speaker 9: Now. I do think in this case in New York.
35:51
Speaker 10: It may be that given where this administration is right
35:55
Speaker 10: now where it's not trying to ruffle any more feathers
35:58
Speaker 10: between now and the election, and then is sort of
36:01
Speaker 10: gearing up for a post election immigration enforcement round up
36:06
Speaker 10: that it may not do anything for now.
36:08
Speaker 9: I could see them just litigating this kind of in a.
36:11
Speaker 10: Slow track, low profile for now, But I don't think
36:16
Speaker 10: that the statutory scheme dissuades the Department of Homeland Security
36:22
Speaker 10: legally from conducting these arrests. The problem is if people
36:26
Speaker 10: stop showing up the immigration court, at some point, the
36:31
Speaker 10: immigration enforcement personnel have to make a decision do they
36:35
Speaker 10: want to start having to enforce all of these what
36:37
Speaker 10: are called in absentia removal orders, which is, if you
36:41
Speaker 10: don't show up the court, you're like ordered by default
36:44
Speaker 10: to be removed, And then people will litigate these on
36:49
Speaker 10: an individual basis, and all of that takes more time
36:52
Speaker 10: than just getting the actual removal order in the first place.
36:56
Speaker 10: So you almost want to try to figure out is
36:58
Speaker 10: the juice worth the squad of these arrests. And I
37:02
Speaker 10: don't know what they're gonna decide there, because if they're
37:04
Speaker 10: really focused on an arrest, quota removals be damned, then
37:08
Speaker 10: they'll keep doing the arrest because this is the way
37:11
Speaker 10: to raise the arrest quota. But if they're really looking
37:14
Speaker 10: at what is the way to get the highest number
37:17
Speaker 10: of completely enforceable, unappealable removal orders, then you wouldn't start
37:22
Speaker 10: arresting people in court because you leave yourself vulnerable to
37:26
Speaker 10: these new process claims.
37:27
Speaker 4: I guess we'll see what ICE and DHS decide to
37:30
Speaker 4: do after the midterms. Thanks for joining me, Leon. That's
37:34
Speaker 4: Leon Fresco of Honden Knight and that's it for this
37:37
Speaker 4: edition of The Bloomberg Law Show. Remember you can always
37:40
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37:43
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37:52
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