Latest / Bloomberg Law / Asylum, ICE in Charlotte & Michael Flynn $50 Million Claim

Transcript

Asylum, ICE in Charlotte & Michael Flynn $50 Million Claim · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:13
Speaker 2: Protests after masked ICE agents descended on Charlotte, North Carolina
0:18
Speaker 2: over the weekend in the latest federal immigration crackdown in
0:23
Speaker 2: a democratic city, Governor Josh Stein encouraged residents to stay
0:28
Speaker 2: peaceful and to record any unusual interactions with ICE.
0:33
Speaker 3: Everyone wants to be safe in their communities, but the
0:37
Speaker 3: actions of too many federal agents are doing the exact opposite.
0:41
Speaker 3: In Charlotte, We've seen masked, heavily armed agents and paramilitary
0:45
Speaker 3: garb driving unmarked cars, targeting American citizens based on their
0:50
Speaker 3: skin color, racially profiling and picking up random people in
0:54
Speaker 3: parking lots and off of our sidewalks, going after landscapers,
0:59
Speaker 3: simply decorating a Christmas tree in someone's front yard, and
1:03
Speaker 3: entering churches and stores to grab people. This is not
1:07
Speaker 3: making us safer. It's stoking fear and dividing our community.
1:12
Speaker 2: My guest is immigration law expert Leon Fresco, a partner
1:16
Speaker 2: at Hollanden Knight. Leon why the federal immigration cracked down
1:21
Speaker 2: in Charlotte.
1:22
Speaker 4: Well, basically, what's happened is that the administration has decided
1:27
Speaker 4: that the pace of immigration enforcement is moving way too
1:31
Speaker 4: slowly for its liking, and so it's going to try
1:34
Speaker 4: to move its operations to cities where it can still
1:37
Speaker 4: yield large numbers of people without status, but nevertheless does
1:42
Speaker 4: not get the kind of friction that it has been
1:45
Speaker 4: getting in cities where there is both United State government
1:50
Speaker 4: and local government that is against the ICE immigration operations.
1:55
Speaker 4: So what are the places that ICE has decided to
1:59
Speaker 4: move operation to Is Charlotte, North Carolina, because again, even
2:03
Speaker 4: though there is a lot of democratic local government they
2:08
Speaker 4: are in the city, nevertheless it's still a more conservative
2:11
Speaker 4: area of the country. The courts are in a more
2:14
Speaker 4: conservative circuit, the fourth circuit, And so the idea is
2:19
Speaker 4: that ICE would move its operation there to try to
2:22
Speaker 4: again begin trying to establish precedent that it can use
2:26
Speaker 4: reasonable suspicion to apprehend people and if necessary, plays people
2:32
Speaker 4: into deportation proceedings. Meanwhile actually having large numbers of people
2:37
Speaker 4: going in and doing fugitive operations as well. And so
2:42
Speaker 4: you have that, but then you do have a democratic
2:45
Speaker 4: governor there in North Carolina, and you have a democratic mayor,
2:50
Speaker 4: and so from that standpoint, it's going to be very
2:53
Speaker 4: interesting to see how this plays out of it'll play
2:56
Speaker 4: out where they try to operate with the same script Chicago,
3:01
Speaker 4: or will it play out because the courts in Charlotte
3:03
Speaker 4: are not as progressive as the courts in Chicago were,
3:09
Speaker 4: that this would be a great place to establish president
3:12
Speaker 4: for the Trump administration that they can use their reasonable
3:16
Speaker 4: suspicion and start apprehending people just who are generally walking
3:21
Speaker 4: or at suspicious locations around Charlotte.
3:26
Speaker 2: In a case that went to the Supreme Court on
3:28
Speaker 2: the Emergency docket, the contention was that ICE was making
3:34
Speaker 2: stops based on racial profiling, and the Supreme Court didn't
3:39
Speaker 2: stop them from doing that, So what are they trying
3:41
Speaker 2: to prove here?
3:43
Speaker 4: Well, the difference is that in Chicago, there was an
3:48
Speaker 4: order of operations that had been established by the District
3:51
Speaker 4: Court that basically was still having ICE reporting to the
3:55
Speaker 4: District Court with regard to having the use of body
3:58
Speaker 4: cameras and and having transparency with regard to each of
4:02
Speaker 4: its interactions with people and trying to figure out if
4:07
Speaker 4: there really was reasonable suspicion for stops or was it
4:11
Speaker 4: really all just racial profiling. And from that perspective, I
4:17
Speaker 4: believe that even though the daily check ins with the
4:20
Speaker 4: district judge were were not allowed any Further, I do
4:23
Speaker 4: believe that perhaps there was this feeling that there had
4:27
Speaker 4: been too much resistance in Chicago that it wasn't worth it.
4:30
Speaker 5: To continue there.
4:32
Speaker 4: And so I think the idea is try to go
4:35
Speaker 4: to a jurisdiction that has similar yields of population in
4:39
Speaker 4: order to be able to apprehend people, get the numbers
4:41
Speaker 4: of deportation up, but that if that gets challenged, you
4:45
Speaker 4: would be in the fourth Circuit, and the Fourth Circuit
4:47
Speaker 4: is just demonstrably more conservative than the Seventh Circuit, and
4:52
Speaker 4: then also the district judges in Chicago, and so the
4:55
Speaker 4: idea would be that potentially good president for the t
5:00
Speaker 4: administration could be established there with regard to how the
5:04
Speaker 4: apprehensions are to be done, how people are to be
5:06
Speaker 4: detained once they are apprehended, and the deportation of these
5:11
Speaker 4: people once they are both apprehended and detained. And so
5:16
Speaker 4: I believe that's what they're trying to accomplish here in Charlotte.
5:19
Speaker 5: But we're gonna have.
5:20
Speaker 4: To wait to see how this actually operates in practice.
5:23
Speaker 2: The Border Protection Commander Gregory Bevino, who is the face
5:27
Speaker 2: of Border patrol and has led the operations in La
5:30
Speaker 2: Chicago and now Charlotte. Well, he admitted in a deposition
5:35
Speaker 2: that he'd lied when he said he was hit by
5:37
Speaker 2: a rock before he threw a canister of tear gas.
5:41
Speaker 2: Did it seem like he sort of left Chicago because
5:44
Speaker 2: a district judge was onto him.
5:47
Speaker 4: Again, This is all part of they're going to try
5:50
Speaker 4: to yield success in operations where they feel they can
5:53
Speaker 4: yield success. And I do think it looks like the
5:57
Speaker 4: operational crew that had started the operation in Chicago has
6:01
Speaker 4: moved indeed to Charlotte for this operation that they're calling
6:04
Speaker 4: Charlotte's Web, And they're trying to basically operate with these
6:11
Speaker 4: reasonable suspicion based stops where they can say we're using
6:15
Speaker 4: the criteria given by Supreme Court Justice Kavanov. You know
6:20
Speaker 4: that as long as they are brief and they are contextual,
6:23
Speaker 4: and they're not one hundred percent race based, but that
6:27
Speaker 4: they have other factors in them, such as potentially known
6:32
Speaker 4: presence in certain locations and known types of jobs that
6:38
Speaker 4: people are congregating in where large yields of population of
6:42
Speaker 4: people without status might be done, that those might be
6:45
Speaker 4: considered reasonable suspicion, and so as long as they follow
6:49
Speaker 4: that guidance, it appears that they'll be able to engage
6:53
Speaker 4: in these operations. And then the question will be would
6:56
Speaker 4: the Attorney General in North Carolina file any thing that
7:01
Speaker 4: would actually challenge this? Would they end up getting similar
7:03
Speaker 4: results from Chicago, where these operations ended up being very
7:08
Speaker 4: closely scrutinized by the courts basically every single apprehension.
7:13
Speaker 5: Or are they going to be allowed to.
7:15
Speaker 4: Establish a president in Charlotte which they can then take
7:17
Speaker 4: to other locations along the South, such as Memphis and
7:22
Speaker 4: New Orleans and other places Atlanta where they might be
7:26
Speaker 4: able to try to get different results than what had
7:29
Speaker 4: been yielded in Chicago and Los Angeles.
7:31
Speaker 2: Let me ask you this, are there any Republican cities
7:35
Speaker 2: with large numbers of immigrants who are possibly there illegally?
7:41
Speaker 2: Are there any Republican cities that the Trump administration can
7:44
Speaker 2: go into or is it only democratic cities?
7:47
Speaker 4: Well, I mean this is the issue is many of
7:49
Speaker 4: the largest cities in America do not have Republican mayors.
7:54
Speaker 5: So that's one of the problems.
7:56
Speaker 4: They may have Republican governors, they may have Republican attorney general.
8:00
Speaker 5: So you're thinking of, for.
8:02
Speaker 4: Instance, in Texas, there's a lot of cities where you know,
8:06
Speaker 4: you have democratic mayors, but you have the Republican governor
8:09
Speaker 4: of Texas, you have the Republican attorney general. But in
8:13
Speaker 4: terms of big cities, I mean maybe you have Dallas
8:16
Speaker 4: might be one, or Fort Worth might be another. Oklahoma
8:19
Speaker 4: City might be another, but it's not really a large
8:23
Speaker 4: group of big cities that have Republican mayors. And so
8:27
Speaker 4: I think there's some stat that says maybe eight out
8:29
Speaker 4: of the largest fifty cities have Republican mayors, and the
8:33
Speaker 4: three biggest ones are Fort Worth, Dallas in Oklahoma City.
8:37
Speaker 4: So maybe they will go there, But the truth is
8:39
Speaker 4: ICE is already operating pretty heavily in Texas, and so
8:44
Speaker 4: there's not really much more that ICE can be doing
8:46
Speaker 4: in Texas. With regard to Oklahoma City, I don't know.
8:48
Speaker 4: Maybe they will try to go there, but that hasn't
8:51
Speaker 4: been on the list of places there to go to
8:54
Speaker 4: at the moment.
8:55
Speaker 2: There was a story that you know, they're looking into
8:58
Speaker 2: having an ICE facility on Staten Island. That's led to
9:02
Speaker 2: speculation that after Zorimandami takes office as mayor of New
9:08
Speaker 2: York that the administration is going to send ICE agents
9:13
Speaker 2: into New York City the way it has in Chicago
9:17
Speaker 2: and LA and Charlotte.
9:20
Speaker 5: I'm not thinking this as part of any insight knowledge.
9:22
Speaker 4: I'm just saying this is part of just knowledge generally
9:24
Speaker 4: of how this system works. Is you would never try
9:27
Speaker 4: to use the Coastguard facility on Staten Island to hold
9:31
Speaker 4: detainees unless they one hundred percent happened to be from
9:34
Speaker 4: New York City. And the reason for that is because
9:38
Speaker 4: previously the detainees from New York used to get sent
9:42
Speaker 4: to New Jersey. And the reason they would get sent
9:45
Speaker 4: to New Jersey one it was obviously cheaper too logistically
9:49
Speaker 4: there was.
9:50
Speaker 5: More capacity at three.
9:53
Speaker 4: The Second Circuit is considered normally more liberal than the
9:58
Speaker 4: Third Circuit, even though Third tart that had been liberal
10:01
Speaker 4: in some instances. Normally, the Third Circuit is considered a
10:05
Speaker 4: more conservative court than the Second Circuit, so that once
10:08
Speaker 4: you detain people in New York City and you move
10:11
Speaker 4: them over to the Third Circuit, you're much more likely
10:14
Speaker 4: to get a conservative opinion in whether it's a detention case,
10:17
Speaker 4: a removal case, or anything else. Putting them in Staten
10:21
Speaker 4: Island then subjects you not just to the Second Circuit,
10:26
Speaker 4: but also to the Southern District of New York. And
10:29
Speaker 4: the Southern District of New York is a very, very
10:32
Speaker 4: progressive court. It's not at all like almost any other
10:36
Speaker 4: court in America because you've had two Democratic senators in
10:39
Speaker 4: New York for decades and they have had great influence
10:43
Speaker 4: over the judges that have been appointed in New York.
10:46
Speaker 4: And so it's very, very unlikely that any good case
10:52
Speaker 4: law would come out of detaining people in Staten Island.
10:55
Speaker 4: And so the only reason you would do it is
10:58
Speaker 4: to say, we are going to have a major crackdown
11:01
Speaker 4: in New York City, and this is space that we
11:04
Speaker 4: want in order to engage in that correctown.
11:07
Speaker 2: Well, I hope you're right about that. Leon. Coming up
11:09
Speaker 2: next on the Bloomberg Lanne Show, the Supreme Court agreed
11:13
Speaker 2: today to review an immigrant's right to seek asylum at
11:17
Speaker 2: the border. I'm June Grosso and you're listening to Boomberg.
11:21
Speaker 2: The Supreme Court has agreed to review the policy of
11:25
Speaker 2: denying migrants the chance to apply for asylum if they
11:29
Speaker 2: haven't set foot on American soil, in the practice known
11:33
Speaker 2: as metering border agents turn back potential asylum seekers before
11:39
Speaker 2: they cross into the US to limit the numbers seeking asylum.
11:43
Speaker 2: The Ninth Circuit ruled that The Ninth Circuit ruled that
11:47
Speaker 2: metering violates the migrants' constitutional rights and a federal law
11:52
Speaker 2: requiring officials to screen anyone who shows up at ports
11:56
Speaker 2: of entry seeking asylum. The Trump administration and appeal that
12:01
Speaker 2: decision to the Supreme Court. I've been talking to immigration
12:04
Speaker 2: attorney Leon Fresco of Holland and Knight.
12:08
Speaker 4: Leon.
12:08
Speaker 2: There are a couple of legal fights going on over asylum.
12:13
Speaker 4: There's a lot of different parts of the asylum system
12:16
Speaker 4: that are all eventually going to work their way up
12:19
Speaker 4: to the Supreme Court. The most important one not being
12:22
Speaker 4: this case, but just being generally the case that will
12:26
Speaker 4: discuss whether by executive fiat, the president has the authority
12:31
Speaker 4: to basically end asylum in the United States for people
12:35
Speaker 4: who cross the border illegally. That case is working its
12:41
Speaker 4: way up, and there's DC case law talking about that
12:46
Speaker 4: the Trump administration may not have the authority to unilaterally
12:50
Speaker 4: do that To just say if you cross the border illegally,
12:53
Speaker 4: you can't get asylum.
12:54
Speaker 5: This is slightly different.
12:55
Speaker 4: This then would say, because when you have that discuss
13:00
Speaker 4: that we just talked about, can you get asylum if
13:02
Speaker 4: you cross the border illegally. There's a talking point that
13:05
Speaker 4: then gets offered by the people who don't want individuals
13:10
Speaker 4: crossing the border illegally to get asylum. They say, why
13:15
Speaker 4: don't you do it the right way and go to
13:17
Speaker 4: a port of jury. So everybody says, well, gee, that
13:21
Speaker 4: certainly makes a lot of sense. Do it the right way,
13:23
Speaker 4: go to a port of entry. Don't just run across
13:25
Speaker 4: the border and cause chaos, you know, present yourself to
13:28
Speaker 4: someone who's there, who's prepared, ready to examine the case,
13:32
Speaker 4: et cetera.
13:33
Speaker 5: So far, so good.
13:34
Speaker 4: But there have been policies in both the Trump administration
13:38
Speaker 4: and the Biden administration that say, hold on, we're not
13:41
Speaker 4: going to let you go in through the port of
13:43
Speaker 4: entry either because whether it was COVID or just they
13:46
Speaker 4: don't want people going through the port of entry. We
13:49
Speaker 4: don't want that either. We don't want anybody coming in
13:51
Speaker 4: from the southern border asking for asylum. So here then
13:55
Speaker 4: comes the question if that human being had come across
14:01
Speaker 4: the port of entry and entered in the US side
14:04
Speaker 4: of the port of entry, we'd be in the same
14:07
Speaker 4: situation we were in when we're talking about the person
14:09
Speaker 4: who illegally crosses. Then we're just in that Supreme Court
14:14
Speaker 4: land that we don't know where it's gonna end up,
14:16
Speaker 4: which can be executive by FIAT ban people from coming
14:20
Speaker 4: in for asylum. Okay, there's that one, but this is different.
14:25
Speaker 4: This is what if the US gets to you physically
14:28
Speaker 4: while you're on the Mexican side of the port of entry,
14:31
Speaker 4: so your body never makes it to the US. Are
14:34
Speaker 4: you still eligible to apply for asylum or has the
14:38
Speaker 4: US basically made it impossible for you to go into court?
14:42
Speaker 4: Because it would be the same thing as if you
14:45
Speaker 4: were saying, why can't I apply for asylum from New
14:48
Speaker 4: Zealand or from Australia.
14:50
Speaker 5: I don't get it.
14:50
Speaker 4: I should just be allowed to just announce that I
14:53
Speaker 4: have an asylum claim to some American at an embassy
14:56
Speaker 4: and in Australia or in New Zealand. Should be allowed
15:00
Speaker 4: to do that. And if I'm not allowed to do that,
15:02
Speaker 4: I should be able to sue in court that's not allowed.
15:05
Speaker 4: You can't if you live in New Zealand just go
15:07
Speaker 4: to a US embassy and ask for an asylum or
15:10
Speaker 4: you can't if you live in Australia, go to a
15:12
Speaker 4: US embassy and ask for asylum, and if they say no,
15:15
Speaker 4: go to a federal court. But the Ninth Circuit said
15:18
Speaker 4: that if you get stopped on the Mexican side of
15:21
Speaker 4: the US port of entry, if you're trying to arrive
15:25
Speaker 4: in the United States and the only reason you don't
15:28
Speaker 4: arrive is because the US stops you from arriving, that
15:33
Speaker 4: that would still be considered an arrival in the United
15:37
Speaker 4: States for the purpose of triggering all of these asylum
15:40
Speaker 4: questions about whether you're eligible to apply for asylum, whether
15:44
Speaker 4: the US can't let you stay in Mexico, they have
15:47
Speaker 4: to bring you in if you have a credible fear,
15:49
Speaker 4: they have to let you make your case in the
15:51
Speaker 4: United States.
15:53
Speaker 5: And so that's really the issue. Now.
15:56
Speaker 2: They're not using this metering process. So why is the
15:59
Speaker 2: Trump ad minntest bothering to appeal it to the Supreme Court?
16:03
Speaker 4: The Trump administration decided because I think what happens is
16:08
Speaker 4: they're concerned that the current administrative ban that they have
16:13
Speaker 4: on asylum might be taken away, and if that happens,
16:19
Speaker 4: then they're going to try to say, well, you know,
16:21
Speaker 4: go in through the port of entry, but again limiting
16:26
Speaker 4: who can come in through the port of entry. So
16:28
Speaker 4: they're going to want the discretion to be able to say, look,
16:31
Speaker 4: we're letting in some people through the port of entry
16:34
Speaker 4: to apply for asylum each day, but if you're not
16:37
Speaker 4: one of the fifty people, let's say, because they're going
16:40
Speaker 4: to try to make the number low, if you're not
16:42
Speaker 4: one of the fifty people that's letting him in, just
16:44
Speaker 4: because we apprehend you on the Mexican side of the
16:47
Speaker 4: border doesn't mean you've now succeeded in being able to
16:50
Speaker 4: make an asylum claim.
16:52
Speaker 5: And so the.
16:54
Speaker 4: Ninth Circuit had said, yes, that person should be given
16:56
Speaker 4: the right.
16:57
Speaker 5: To apply for asylum.
16:59
Speaker 4: But what subsequently happened is the Biden administration took away
17:03
Speaker 4: that policy, and so the immigrants' rights advocates are saying,
17:07
Speaker 4: this is mood, this is not a thing anymore, because
17:09
Speaker 4: the Trump administration really isn't relying on this.
17:12
Speaker 5: They're relying on the.
17:13
Speaker 4: Nobody gets asylum in the Southern Border period executive fiat.
17:18
Speaker 4: They're not relying on this argument anymore about we've apprehended
17:21
Speaker 4: you at the port of entry, so it's mood, you
17:24
Speaker 4: shouldn't decide this. But the Trump administration is trying to
17:27
Speaker 4: say it's not moot, and it looks like the Supreme
17:30
Speaker 4: Court has agreed that it's not mood that they want
17:33
Speaker 4: to actually come to a decision, which I believe if
17:36
Speaker 4: they've taken cert means they're very likely to overturn the
17:40
Speaker 4: Ninth Circuit's decision that says that if you are in
17:44
Speaker 4: Mexico and trying to arrive in the US, you have
17:47
Speaker 4: basically succeeded in presenting yourself for an asylum claim. I
17:51
Speaker 4: think they will overturn that, it seems like, and they
17:54
Speaker 4: will say no, no, no, your body actually has to
17:56
Speaker 4: make it into the US in order to trigger your
18:00
Speaker 4: rights to apply for asylum. Otherwise, where do we draw
18:04
Speaker 4: the line again? Can you do this in Australia, Can
18:07
Speaker 4: you do this in New Zealand, etc.
18:08
Speaker 5: Etc.
18:09
Speaker 2: I don't think there are too many people in Australia
18:12
Speaker 2: or New Zealand right now trying to get asylum in
18:16
Speaker 2: the United States.
18:18
Speaker 5: Or the Ocean period.
18:19
Speaker 4: You know, if you're coming in and you're two miles
18:21
Speaker 4: out from the US and we interdict you, does that
18:24
Speaker 4: mean you've succeeded and now you can apply for asylum.
18:26
Speaker 4: And so those are the tough questions here.
18:29
Speaker 2: So let's turn to this on Bank ruling from the
18:33
Speaker 2: DC Circuit Court of Appeals. It's a little confusing. So
18:36
Speaker 2: this goes back to the situation where Judge Boseburg was
18:41
Speaker 2: trying to figure out whether or not the Trump administration
18:45
Speaker 2: was sending Venezuelans to El Salvador, to that prison in
18:49
Speaker 2: l Salvador, and he asked them to turn around whatever
18:53
Speaker 2: flights are on their way, and the question is whether
18:57
Speaker 2: they lied to him correct.
19:00
Speaker 4: This is sort of two separate cases. The first case
19:04
Speaker 4: is about the substance of whether a habeas petition could
19:08
Speaker 4: be used to challenge the fact that a law from
19:12
Speaker 4: seventeen ninety eight called the Alien Enemies Act allowed the
19:15
Speaker 4: government to basically identify anyone had thought was a foreign
19:18
Speaker 4: national and send them to El Salvador so long as
19:22
Speaker 4: they thought that person was an enumerated gang member from
19:26
Speaker 4: trend to Ragua, Venezuela because they said that that was
19:29
Speaker 4: an alien enemy. So there was a lot of things
19:31
Speaker 4: to review. Conceivably, are you an American or not? Are
19:35
Speaker 4: you trend to Aragua or not? Does this allow you
19:38
Speaker 4: to get sent to El Salvador all of these things,
19:40
Speaker 4: and that's still working its way through the courts about
19:43
Speaker 4: the constitutionality of all of this. But what the Supreme
19:46
Speaker 4: Court ultimately said is a habeas in DC is the
19:50
Speaker 4: wrong place to do this, or an administrative procedure at
19:53
Speaker 4: case in DC is also the wrong place to do this.
19:56
Speaker 4: You've got to do it in the district in which
19:59
Speaker 4: the person was detained. And so they sent those cases
20:03
Speaker 4: to Texas and other places where the people who were
20:06
Speaker 4: going to be sent to Venezuela were actually detained. And
20:10
Speaker 4: you know, there's a lot of debate about how much
20:11
Speaker 4: time you have to file one.
20:13
Speaker 5: Of these cases, et cetera.
20:14
Speaker 4: So that's case number one, the substance, but case number two,
20:18
Speaker 4: the sort of what I would call the anciliary part
20:22
Speaker 4: of the case, would be that the judge was upset
20:27
Speaker 4: with how the substance was argued, even though the judge
20:30
Speaker 4: apparently doesn't have jurisdiction to view any of the substance anymore.
20:34
Speaker 4: Of this case, the judge said, when I thought I did,
20:37
Speaker 4: and when everybody thought I did, you the government engage
20:42
Speaker 4: in actions that I'm worried violated content of court. And
20:46
Speaker 4: so then there was an appeal about, well, can the
20:49
Speaker 4: court continue along these lines of trying to hold the
20:53
Speaker 4: government in criminal content and to identify the officials who
20:58
Speaker 4: the court is concerned may or may not have made
21:01
Speaker 4: misrepresentations to the court about flights to El Salvador that
21:05
Speaker 4: were or weren't happening, or should or shouldn't have been happening.
21:09
Speaker 4: And then they were potentially stonewalling the court about not
21:12
Speaker 4: wanting to give information about who did what, who said what,
21:16
Speaker 4: et cetera.
21:18
Speaker 5: And so what happened.
21:20
Speaker 4: Was was there was a appeal where the government said, look,
21:24
Speaker 4: we're done with the District Court Judge just Boseburg here
21:28
Speaker 4: and we're trying to get what's called the rid of
21:30
Speaker 4: man damis saying we don't want to be part of
21:33
Speaker 4: this anymore. We don't want to have to talk to
21:35
Speaker 4: Judge Bosburg about identifying responsible officials, naming them, saying what
21:41
Speaker 4: they did, et cetera. What happened was there was a
21:44
Speaker 4: two to one decision from the Court of Appeals in
21:47
Speaker 4: BC saying that okay, fine, Judge Boseburg, We're gonna grant
21:53
Speaker 4: what's called a writ of mandamus, which is very very
21:56
Speaker 4: rare where the court basically stops another judge from doing something,
22:01
Speaker 4: And what the DC Circuit said two to one is
22:04
Speaker 4: we're going to just stop the judge from trying to
22:06
Speaker 4: identify responsible officials in order to maybe hold them in
22:10
Speaker 4: criminal content. So then the plaintiffs in the case, who
22:14
Speaker 4: are the people representing the El Salvador and deportees who
22:19
Speaker 4: are Venezuelan, they petitioned for rehearing and bank saying that's
22:24
Speaker 4: not fair that the court should be able.
22:25
Speaker 5: To hold the government in content.
22:28
Speaker 4: And so the issue again in this case was well,
22:31
Speaker 4: was the panel correct to issue this rid ofm man
22:33
Speaker 4: damus against the judge, And the en banc panel did
22:37
Speaker 4: say yes, the panel was correct in issuing mandamus against
22:42
Speaker 4: the judge. But there were several judges in the DC
22:47
Speaker 4: Circuit who expressed serious concerns about what they felt was
22:50
Speaker 4: government misconduct, and so they said, look, let Judge Bozburg
22:57
Speaker 4: continue on with his content in and yes, he can't
23:02
Speaker 4: go and start trying to go through every single part
23:06
Speaker 4: of who knows what and.
23:07
Speaker 5: Who did what. But at the end of the day,
23:10
Speaker 5: if specific lawyers that.
23:11
Speaker 4: Were in front of him did lie to him, he
23:14
Speaker 4: can and should be able to move forward with a
23:17
Speaker 4: contemp proceeding, and so we're gonna have to wait and
23:20
Speaker 4: see if that actually ends up being the case or not.
23:23
Speaker 4: But he's gonna have a hearing and they're gonna go
23:25
Speaker 4: back and look at that specific issue. So maybe not
23:28
Speaker 4: go through and start sanctioning all of the government officials
23:32
Speaker 4: that may have been involved in the deportation itself, but
23:36
Speaker 4: at least the lawyers who went in, if there were
23:39
Speaker 4: any that actually made this representation to Judge Bozburg, those
23:43
Speaker 4: might actually still end up being in contempt unless a
23:46
Speaker 4: future order comes from either the DC Circuit or the
23:51
Speaker 4: Supreme Court that says no, no, no, We're.
23:54
Speaker 5: Done with all of this.
23:56
Speaker 4: But they did an issue We're done with all of
23:58
Speaker 4: this order, so the issue still continues, oddly enough, in
24:03
Speaker 4: this bizarre context.
24:05
Speaker 2: It is a long and winding case. Thanks as always, Leon.
24:09
Speaker 2: That's Leon Fresco of Holland and Knight. Coming up next,
24:13
Speaker 2: the Justice Department's sudden settlement talks with former Trump officials.
24:17
Speaker 2: This is Bloomberg. The Justice Department has been discussing settlements
24:24
Speaker 2: with two former officials from Donald Trump's first term, who,
24:28
Speaker 2: like the President, claim their owed multimillion dollar payouts from
24:32
Speaker 2: the US government as victims of politically motivated actions. Trump's
24:38
Speaker 2: first national security advisor, Michael Flynn and former senior White
24:42
Speaker 2: House lawyer Stefan Pasantino have been in talks with the
24:46
Speaker 2: Trump administration since at least late summer. The negotiations mark
24:51
Speaker 2: a shift from the Justice Department's position during the Biden administration,
24:56
Speaker 2: where government lawyers successfully fought both cases. Joining me is
25:01
Speaker 2: Bloomberg News reporter Zoe Tillman, Who's been looking into these negotiations. So, Zoe,
25:07
Speaker 2: why are Flynn and Pasentinos suing the government?
25:11
Speaker 1: So they have two very different lawsuits stemming from two
25:15
Speaker 1: sort of very different big investigations surrounding Trump and Trump World.
25:21
Speaker 1: Michael Flynn is the older case. He was Trump's first
25:25
Speaker 1: national security advisor for a very brief moment in time,
25:29
Speaker 1: and then faced prosecution by the Special Counsel Robert Muller
25:34
Speaker 1: in connection with the Russia probe, where he was charged
25:37
Speaker 1: with lying to investigators pretty early on in that investigation,
25:42
Speaker 1: sort of pre Muller's appointment about his contacts during the
25:47
Speaker 1: twenty sixteen twenty seventeen transition period with a Russian official,
25:51
Speaker 1: and at first Michael Flynn pleaded guilty, entered a plea deal,
25:56
Speaker 1: admitted lying, but then changed course dramatically hard one eighty.
26:01
Speaker 1: He brought on new lawyers, Sidney Powell, who would go
26:04
Speaker 1: on to become sort of a very bold face name,
26:07
Speaker 1: but was not really in the spotlight at the time,
26:10
Speaker 1: and you know, backtracked on that and fought the prosecution
26:14
Speaker 1: tooth and nail and wound up having his case dismissed
26:18
Speaker 1: by then A G. Bill Barr. He was subsequently full
26:23
Speaker 1: out pardoned by Trump near the end of his first term.
26:26
Speaker 1: So Michael Flynn sued and said this was a malicious prosecution,
26:30
Speaker 1: this was an unlawful targeting of me, and he was
26:35
Speaker 1: seeking fifty million dollars for the harms that he suffered
26:38
Speaker 1: for that. So Trump loses the election. January sixth happened.
26:43
Speaker 1: There's then a congressional investigation into January sixth, and Stefan
26:47
Speaker 1: Pasentino is a lawyer for a number of witnesses who
26:51
Speaker 1: are called as part of that investigation. At least some
26:54
Speaker 1: of them are being paid by a Trump affiliated pack
26:57
Speaker 1: and his clients include Cassidy Hutchinson, who was a former
27:01
Speaker 1: White House aide to Mark Meadows, and he represented her,
27:06
Speaker 1: and then he didn't represent her. She gets new lawyers
27:09
Speaker 1: and goes on to testify in front of a nationwide
27:12
Speaker 1: televised audience. You know that, among other things, she heard
27:16
Speaker 1: Trump lunged at someone in a car on January sixth.
27:20
Speaker 1: It was sort of this very dramatic, explosive moment. And
27:24
Speaker 1: Pasentino subsequently was accused of sort of urging Cassidy Hutchinson
27:31
Speaker 1: to mislead, if not be untruthful to the committee, a
27:34
Speaker 1: claim that he has flat out denied. So he files
27:37
Speaker 1: suit later saying that the committee and its staff leaked
27:42
Speaker 1: information about his work with Cassidy to promote this false
27:47
Speaker 1: narrative about him that he committed misconduct ethical breach. So
27:51
Speaker 1: we have sort of two lawsuits that you know, on paper,
27:54
Speaker 1: are very unconnected, but of a same feather.
27:58
Speaker 2: The Biden administration fought both these cases, and one.
28:03
Speaker 1: That's right, you know, part of why we this is
28:05
Speaker 1: something we were looking at was they both started by
28:09
Speaker 1: filing administrative claims with the agencies before going to court.
28:14
Speaker 1: And it's a process that's sort of gotten rash attention
28:17
Speaker 1: right now because it's the same process that Donald Trump
28:19
Speaker 1: is pursuing at the administrative level trying to get according
28:23
Speaker 1: to the New York Times, two hundred and thirty million dollars,
28:27
Speaker 1: also because he says he was wronged by government actors. So,
28:31
Speaker 1: you know, Flynn and Pasentinoes start with that process. They
28:34
Speaker 1: say they don't hear back within the six month or
28:37
Speaker 1: so period, so they sue, and the Justice Department under
28:41
Speaker 1: President Biden fights both of these cases and says these are,
28:45
Speaker 1: you know, not merit cases. They're legally deficient, they're procedurally deficient.
28:51
Speaker 1: And in both instances the Justice Department wins. They get
28:54
Speaker 1: an order dismissing Flynn's case, they get an order dismissing
28:57
Speaker 1: Pasentino's case. In Lynn's case, the judge dismisses it but says,
29:03
Speaker 1: I give you leave to file an invented complaint. You know,
29:06
Speaker 1: you can come back and try again. So this happens
29:08
Speaker 1: at the very end of twenty twenty four. Obviously there's
29:11
Speaker 1: an election. Trump comes back to office, so Flynn's case
29:15
Speaker 1: is not dead in the water, and his lawyers asked
29:18
Speaker 1: for extensions, saying, you know, Trump is releasing new information
29:21
Speaker 1: about them all er probe, we want to have more
29:24
Speaker 1: time to update our complaint and the judge says it's fine.
29:27
Speaker 1: DJ doesn't oppose this, and at the same time Pasentino
29:31
Speaker 1: he appeals, he appeals his loss to the Eleventh Circuit.
29:34
Speaker 1: You know, sort of interesting about this timeline is up
29:37
Speaker 1: until this summer, DJ under Trump continues to fight his case.
29:43
Speaker 1: So they file their brief in the Eleventh Circuit saying
29:46
Speaker 1: the lower court judges order should be upheld. This was
29:49
Speaker 1: not a meritorious case. The judge didn't make any errors.
29:53
Speaker 1: So you know, both cases are sort of either in
29:56
Speaker 1: limbo or continually, you know, being opposed by the Justice
29:59
Speaker 1: departm And what we found then was by September there
30:04
Speaker 1: are filings in both dockets saying one point eighty DJ
30:09
Speaker 1: is now in settlement talks with both of them, and
30:12
Speaker 1: this is the first time in either case that we've
30:15
Speaker 1: seen that type of disclosure, and you know, there's very
30:20
Speaker 1: little information on what's happening, what's being discussed. In both cases,
30:26
Speaker 1: there are notices saying we need to pause because we
30:28
Speaker 1: are now newly in settlement talks. And this is the
30:32
Speaker 1: moment when I also sort of share that there is
30:35
Speaker 1: a common feature of these cases, which is that Flynn
30:37
Speaker 1: and Pasentino have the same lawyer. His name is Jesse Banal,
30:41
Speaker 1: and he's represented Trump individually, He's represented his past campaign organizations.
30:47
Speaker 1: He had been part of Sidney Powell's team representing Michael
30:50
Speaker 1: Flynn back in the day. You know, it does work
30:53
Speaker 1: for a number of conservative, Republican right leaning clients. So
30:59
Speaker 1: you know, there is this common feature in both cases,
31:02
Speaker 1: which is the same lawyer has a relationship with the
31:05
Speaker 1: president and this administration, you know, by the end of
31:08
Speaker 1: the summer is in settlement talks with the government.
31:12
Speaker 2: Did anything happen to change things or that's not known.
31:16
Speaker 1: You know, there's nothing in the public filings to indicate that,
31:19
Speaker 1: and so far in our reporting that hasn't been confirmed.
31:23
Speaker 1: You we just know that this is sort of an
31:27
Speaker 1: ongoing effort dialogue issue that the president and his administration
31:35
Speaker 1: have been very concerned about consistently since he took office,
31:38
Speaker 1: which is working backwards and trying to undo decisions by
31:45
Speaker 1: high level to mid level government actors across the federal
31:49
Speaker 1: government that they see as wrong, illegal, evidence of political bias, weaponization.
31:56
Speaker 1: It's a lot of different terms. It was a new
31:59
Speaker 1: development in the cases, but a continuation of something that
32:03
Speaker 1: has been a priority for this administration.
32:06
Speaker 2: So the Justice Department is negotiating the deal. Is there
32:10
Speaker 2: any oversight over the Justice Department's decision. Let's say the
32:14
Speaker 2: Justice Department tomorrow says fifty million dollars to Michael Flynn,
32:19
Speaker 2: any oversight at all?
32:21
Speaker 1: You know, like most settlements in court, there is you know,
32:24
Speaker 1: a final act of discretion by a judge when they
32:28
Speaker 1: move to dismiss a case when there's a settlement. That's
32:30
Speaker 1: not something that they can do unilaterally. But there is
32:34
Speaker 1: very little room for judges to really probe that process
32:38
Speaker 1: unless they feel like, you know, something happened on their
32:43
Speaker 1: watch on the docket that requires intervention. But just the
32:46
Speaker 1: fact of a settlement to resolve civil litigation, no matter
32:50
Speaker 1: how far along things are. It's this is certainly not
32:52
Speaker 1: the first administration to reverse the position, the litigating position
32:57
Speaker 1: of the US government. When administration's change presidents of every party,
33:01
Speaker 1: that happens, you know, it's not as if there's some
33:04
Speaker 1: indication that that's something nefarious or illegal or wrong has happened.
33:10
Speaker 1: You know, I think it was just a development that
33:13
Speaker 1: you know, offered more evidence of sort of a broader
33:18
Speaker 1: policy approach by the administration, which is, you know, are
33:21
Speaker 1: there leavers of government that can be used to right
33:24
Speaker 1: what the president sees as these major wrongs of his
33:29
Speaker 1: sort of perceived political enemies. Whether we're talking about pardons, settlements,
33:33
Speaker 1: declassifying information to make it public, Justice Department investigations, prosecutions,
33:40
Speaker 1: there's sort of been this constant drumbeat of how does
33:44
Speaker 1: the administration use the tools of government and in some cases,
33:49
Speaker 1: taxpayer dollar to write what Trump sees as these wrongs.
33:53
Speaker 2: This year, the Trump Justice Department reached a nearly five
33:57
Speaker 2: million dollars settlement with the family of Ashley Babbitt, who
34:02
Speaker 2: was shot during the January sixth riots at the Capitol.
34:06
Speaker 2: Before Trump took office, Had the Biden administration been fighting
34:10
Speaker 2: that lawsuit.
34:11
Speaker 1: Yes, that's another one where under the previous administration, the
34:16
Speaker 1: Justice Department had been seeking dismissal of I believe it
34:19
Speaker 1: was some of the claims in that case. There was
34:21
Speaker 1: a pending motion to dismiss and at a certain point
34:25
Speaker 1: that position changed and the administration, once Trump took office,
34:30
Speaker 1: entered into negotiations with the family and their attorneys to
34:33
Speaker 1: reach a resolution. That process is not public information came
34:37
Speaker 1: out about that only because there was sort of an
34:39
Speaker 1: ancillary dispute related to lawyers who had been involved in
34:43
Speaker 1: the case that landed on the docket ahead of that
34:46
Speaker 1: settlement being announced, So there was sort of an early
34:48
Speaker 1: preview of the fact that it was happening. That there's
34:50
Speaker 1: no obligation by the government to share what it's talking
34:54
Speaker 1: about why it's decided to enter into negotiations, and I
34:58
Speaker 1: think it's also I should say the fact of settlement
35:00
Speaker 1: talks is not a guarantee of a deal. You know,
35:03
Speaker 1: there can be talks that don't yield an agreement in
35:06
Speaker 1: the end. So we don't know how far along the
35:10
Speaker 1: talks are with Flynn and Pasentino. We do know from
35:12
Speaker 1: court filings that the government should put a hold on
35:15
Speaker 1: whatever was happening. So there's been a delay up until
35:18
Speaker 1: now from the past month. So there is just, you know,
35:22
Speaker 1: a lot of secrecy built into this process by design.
35:27
Speaker 2: There are claims with a political connection to Trump in
35:32
Speaker 2: January sixth that the Justice Department is fighting that's right.
35:37
Speaker 1: I mean, it's been a fascinating dynamic to watch on
35:40
Speaker 1: play because throughout the campaign President Trump really took up
35:45
Speaker 1: the cause of January sixth defendants as his own and
35:49
Speaker 1: express support for them, you know, endorsed the thinking on
35:53
Speaker 1: the right that these prosecutions were unwarranted, overblown, and he would,
35:59
Speaker 1: you know, fload the idea of granting them clemency or pardons, commutations.
36:06
Speaker 1: And there were high hopes from those who were involved
36:11
Speaker 1: with these folks as their families, their attorneys, but also
36:14
Speaker 1: activists in the conservative movement. And on day one, Trump
36:18
Speaker 1: signed blanket clemency for those who had been convicted, charged
36:23
Speaker 1: sentences commuted all but I think a handful of people
36:26
Speaker 1: received clemency. But then there's been a bit of a
36:30
Speaker 1: break and a lawyer for a number of these folks
36:35
Speaker 1: named Mark McCloskey, he told us that they've been surprised
36:40
Speaker 1: and frustrated that when they've gone and filed administrative claims
36:44
Speaker 1: seeking damages for everything from you know, malicious prosecution, wrongful prosecution,
36:50
Speaker 1: to the conditions of their prisonment for those who went
36:54
Speaker 1: to jail, if that you know, FBI kicked down their
36:57
Speaker 1: door in arresting them and broke in their house. You know,
37:00
Speaker 1: there's a range of claims that you could make. He
37:03
Speaker 1: says they've been rejected at least the first round or so,
37:07
Speaker 1: and that they are preparing more and you know, encouraged
37:12
Speaker 1: by some other actions by the administration to show support
37:16
Speaker 1: for these folks. But there's been some consternation that it
37:20
Speaker 1: hasn't been full throated. And of course we're going to
37:24
Speaker 1: pay out money damages to the January sixth defendant. It
37:28
Speaker 1: hasn't gone that far after the initial round of clemency,
37:32
Speaker 1: and so there's maybe some uncertainty about whether this will
37:35
Speaker 1: resolve in their favor. It's early to tell. I'm told
37:39
Speaker 1: that hundreds more claims are getting ready to be filed soon.
37:43
Speaker 1: But you know, that's been one area where the government
37:46
Speaker 1: hasn't been sort of fully on their side. And there's
37:49
Speaker 1: a lawsuit brought by some members of the Proud Boys
37:52
Speaker 1: that the Justice Department is fighting under this administration. So
37:57
Speaker 1: it hasn't been just a blanket.
37:59
Speaker 2: Yes, once we find out more, it will be interesting
38:02
Speaker 2: to see where they drew the line, if indeed they
38:06
Speaker 2: do draw the line. Thanks Zoe. That's Bloomberg reporter Zoe Tilman.
38:10
Speaker 2: Headlines are coming up right now, and that's it for
38:14
Speaker 2: this edition of the Bloomberg Law Show. Remember you can
38:16
Speaker 2: always get the latest legal news on our Bloomberg Law podcast.
38:20
Speaker 2: You can find them on Apple Podcasts, Spotify, and at
38:23
Speaker 2: www dot bloomberg dot com slash podcast, Slash Law, and
38:28
Speaker 2: remember to tune into The Bloomberg Law Show every weeknight
38:31
Speaker 2: at ten pm Wall Street Time. I'm June Grosso and
38:35
Speaker 2: you're listening to Bloomberg