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Trump Sued Over Media Ban & Another ICE Shooting · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.
0:09
Speaker 1: It's sick.
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Speaker 2: I mean, there's something wrong with a country that can
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Speaker 2: allow people to write purposely negative stories.
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Speaker 1: Now, if they want to write them, that's fine.
0:21
Speaker 2: But I don't have to let them into my into
0:23
Speaker 2: the people's house.
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Speaker 3: President Trump is banning CNN, MSNOW and Politico from the
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Speaker 3: White House. because he doesn't like their coverage of him.
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Speaker 3: It's really just cumulative stories over the last few years.
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Speaker 4: You get sick of it.
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Speaker 3: The news outlets sued Trump today, saying that the ban
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Speaker 3: is a direct assault on the First Amendment. The ban
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Speaker 3: marks a significant escalation in the administration's efforts to curb
0:52
Speaker 3: press access to events and spaces that are in the
0:55
Speaker 3: public interest, a move no president before Trump has ever taken.
1:01
Speaker 3: even seeming to take former President Barack Obama by surprise.
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Speaker 4: You just can't come to the White House press briefings
1:11
Speaker 4: anymore because you're giving the current president unfavorable coverage. I'm
1:17
Speaker 4: trying to think what would have happened if I had said,
1:20
Speaker 4: you know what, Fox News, you're out of here.
1:23
Speaker 1: It's unimaginable.
1:25
Speaker 3: President Trump is banning CNN, MSNOW, and Politico from the
1:30
Speaker 3: White House because because he doesn't like their coverage of him.
1:35
Speaker 3: Trump said that he was going to ban these outlets,
1:39
Speaker 3: citing what he said was unfavorable coverage of his administration.
1:44
Speaker 3: A very simple ban. I don't want them in my office.
1:47
Speaker 3: I don't want them here. I would say the ban
1:49
Speaker 3: would go as far as you can. What's your first
1:52
Speaker 3: reaction to this ban?
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Speaker 2: Well, my first reaction is this is more of the
1:57
Speaker 2: same with regard to the sort of longstanding war on
1:59
Speaker 2: the press, right? So ever since Trump entered politics, he's
2:03
Speaker 2: been railing against the press and journalists and particularly outlets
2:08
Speaker 2: that report critically on the administration or him. And when
2:13
Speaker 2: they report things he doesn't like, he denigrates them. He
2:16
Speaker 2: calls it fake news. And now in the second term,
2:20
Speaker 2: he's taking more concrete actions than he was in the
2:23
Speaker 2: first term. So this is an escalation. It's blatantly unconstitutional
2:29
Speaker 2: to exclude the press or particular journalists or particular media
2:34
Speaker 2: based on the point of view that they publish or
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Speaker 2: the content of what they publish, whether he likes it
2:39
Speaker 2: or not. That is the definition of a free press,
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Speaker 2: that the president can't just pick and choose the coverage
2:46
Speaker 2: he wants. Every president would like to do that, of course,
2:50
Speaker 2: but only in authoritarian countries can you actually You can
2:54
Speaker 2: pick and choose which news gets reported and punish reporters
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Speaker 2: that don't sort of toe the party line.
3:00
Speaker 3: What Trump calls fake news is coverage of him and
3:04
Speaker 3: his administration that's negative. But let's just say that one
3:08
Speaker 3: outlet repeatedly made mistakes in their coverage. Let's take that
3:13
Speaker 3: as a hypothetical. Would that affect the analysis here at all?
3:17
Speaker 1: Right.
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Speaker 2: Which hasn't been demonstrated, but hypothetically, you know, look, fake
3:22
Speaker 2: news used to have a real meaning. in the sense that,
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Speaker 2: you know, it was made up stories, things that didn't
3:27
Speaker 2: actually happen, but that the press reported as true. That's
3:31
Speaker 2: all now coming from the White House. The made up stuff,
3:34
Speaker 2: the facts that don't exist, or the sort of alternative facts,
3:38
Speaker 2: as they were once called in the first Trump presidency.
3:41
Speaker 2: You can't punish the press because it makes mistakes either.
3:45
Speaker 2: I mean, you can sue them, and Trump has. He
3:48
Speaker 2: sued plenty of media outlets, as you know, for defamation
3:52
Speaker 2: and election fraud and other types of claims, he typically
3:56
Speaker 2: loses those cases because he doesn't have evidence that the
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Speaker 2: media is actually making up stories or knows what it's
4:04
Speaker 2: reporting is false or is reckless with regard to its truth.
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Speaker 2: So it really is a case of when you open
4:10
Speaker 2: up a place like the White House and you invite
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Speaker 2: journalists in, you are constrained with respect to how and
4:18
Speaker 2: whether you can exclude them. And one thing you can't
4:20
Speaker 2: do is just sort of enact or impose a ban
4:25
Speaker 2: on news media that you don't like. And in addition
4:28
Speaker 2: to sort of the First Amendment problems with that, there's
4:31
Speaker 2: something called the Due Process Clause, which means when you
4:34
Speaker 2: credential reporters, they have some entitlement to notice and an
4:37
Speaker 2: opportunity to contest, in your hypothetical non-factual reporting or whatever
4:42
Speaker 2: it may be, the basis for their ban. And he
4:44
Speaker 2: hasn't given that either. He just sort of issued an
4:47
Speaker 2: edict on Truth Social and in the press briefing. And
4:51
Speaker 2: so there are due process problems or First Amendment problems.
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Speaker 2: As I said, it's just blatantly unconstitutional.
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Speaker 3: So the outlets are suing, obviously. Is there anything that
5:00
Speaker 3: stands out to you in their lawsuit, or is it
5:02
Speaker 3: basically what you just talked about?
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Speaker 2: I mean, it's essentially the same thing. It's a bit
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Speaker 2: of a replay of the lawsuit the Associated Press filed
5:12
Speaker 2: when it was excluded from in that case, Air Force
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Speaker 2: One and the Oval Office, because it refused to use
5:19
Speaker 2: Gulf of America instead of Gulf of Mexico. That case
5:22
Speaker 2: is still being litigated. This is different because it's a
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Speaker 2: broader ban. It's not just the Oval Office or Air
5:29
Speaker 2: Force One, where the president may have greater control over
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Speaker 2: who he communicates with in terms of press and others.
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Speaker 2: It just bans them from the White House grounds. And
5:38
Speaker 2: you had reporters stopped at the gates, as you know,
5:41
Speaker 2: their credentials confiscated, in some cases by the Secret Service.
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Speaker 2: So the lawsuit does say this is viewpoint-based discrimination in
5:50
Speaker 2: what is called a public forum. sort of a First
5:53
Speaker 2: Amendment term for government property that's been open to some
5:56
Speaker 2: extent to, in this case, press activity, that it's also
6:00
Speaker 2: retaliation for reporting that the president doesn't like. And retaliation
6:05
Speaker 2: claims have just mushroomed all over the place during the
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Speaker 2: second Trump presidency because he's vindictive and he goes after
6:12
Speaker 2: not just media outlets, but as you know, reporters in
6:15
Speaker 2: very personal ways, right? So Again, this is an escalation.
6:19
Speaker 2: It's a broader ban than the thing that happened to
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Speaker 2: the AP. It's good that they're suing to assert their
6:25
Speaker 2: rights because the press has been pretty, I don't know,
6:30
Speaker 2: welcoming of this sort of abuse, but sort of putting
6:33
Speaker 2: up with it to some degree. And so it's good
6:35
Speaker 2: to see some pushback.
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Speaker 3: As far as the AP, did they get a preliminary
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Speaker 3: injunction or anything to allow them to cover what he
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Speaker 3: excluded them from?
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Speaker 2: Yeah, they got a preliminary injunction from the district court,
6:48
Speaker 2: and then the government appealed, and they got a stay
6:52
Speaker 2: from a divided panel of the D.C.
6:54
Speaker 1: Circuit.
6:56
Speaker 2: And that litigation is ongoing. So there's a stay that
7:00
Speaker 2: the government got or obtained from the D.C. Circuit, and
7:04
Speaker 2: now it is up on the merits. So in that lawsuit, right,
7:07
Speaker 2: as I said, the spaces at issue were Air Force One,
7:10
Speaker 2: the Oval Office, That's a tougher case to make, not
7:13
Speaker 2: an impossible one. But the panel that granted the stay
7:17
Speaker 2: was of the view that those spaces are not, in fact,
7:20
Speaker 2: a kind of public forum. The president can decide who
7:23
Speaker 2: he meets with in the Oval Office or on Air
7:26
Speaker 2: Force One. At some point in the opinion in the D.C. Circuit,
7:29
Speaker 2: they said, well, you know, if Trump grants an interview
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Speaker 2: to Laura Ingraham, he doesn't have to then grant one
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Speaker 2: to Rachel Maddow. So he can he can pick and
7:38
Speaker 2: choose who he wants to give an interview to. But
7:41
Speaker 2: it distinguished specifically the D.C. Circuit, places like press briefing
7:45
Speaker 2: rooms in the White House, which are clearly open for
7:49
Speaker 2: a particular purpose. And there the viewpoint neutrality rules do
7:53
Speaker 2: apply quite clearly.
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Speaker 3: Actually, Trump loves press coverage. He hardly ever passes a
7:59
Speaker 3: microphone without answering questions. And he has almost daily Q &
8:06
Speaker 3: As in the Oval Office. But now the major news
8:11
Speaker 3: outlets are stopping pool coverage of the president. So just
8:16
Speaker 3: to explain for those that may not know, so there's
8:19
Speaker 3: a pool that covers White House events so that you
8:22
Speaker 3: have one camera there covering it for all the outlets
8:25
Speaker 3: and then, you know, individual reporters. So CNN was supposed
8:29
Speaker 3: to be the pool that covered him on the New
8:31
Speaker 3: York trip. The email said that effective today, the TV
8:34
Speaker 3: pool will not be covering events designated as pool coverage
8:38
Speaker 3: of the president. And ABC News, CBS News, CNN, Fox
8:43
Speaker 3: News and NBC signed that. So is this going to
8:47
Speaker 3: hurt him at all because he's not going to get
8:49
Speaker 3: the same kind of coverage he would have?
8:52
Speaker 2: Well, he always gets coverage, right? So I think the
8:54
Speaker 2: president knows there's a way that he can go above
8:58
Speaker 2: the press, which is why his social media account is
9:01
Speaker 2: so active, right? So he doesn't need the press in
9:05
Speaker 2: the way that, say, past presidents did to sort of
9:07
Speaker 2: mediate between him and audiences. I will say it's baffling
9:12
Speaker 2: the extent to which he gets credit for being, quote, transparent,
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Speaker 2: just to appear before the media and then say things
9:20
Speaker 2: that are blatantly false. And then when you're checked on
9:23
Speaker 2: the falsity of them to sort of personally in an
9:25
Speaker 2: ad hominem way to attack reporters, I don't think a
9:29
Speaker 2: president should get credit for that. I think, you know,
9:32
Speaker 2: if you if you want to play the yardstick game,
9:34
Speaker 2: which president has lied more than this one to the
9:37
Speaker 2: assembled press? And, you know, when I mentioned pushback or
9:42
Speaker 2: backboning earlier with regard to the press, A lot of
9:45
Speaker 2: people think, you know, why do they just sit there
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Speaker 2: and take it? Especially the female journalists who are routinely
9:50
Speaker 2: subject to the sort of personal abuse, the piggy comment
9:53
Speaker 2: and the rest. And of course, you know, they have
9:55
Speaker 2: professional standards and they're trying to uphold decorum. So a
10:00
Speaker 2: shouting match with the president's no good and they don't
10:02
Speaker 2: want to be denied access. But I just don't think
10:06
Speaker 2: that assembling a bunch of people from the press and
10:08
Speaker 2: then berating and lying to them is actually what transparency means.
10:13
Speaker 2: So you could count the number of pressers the president holds.
10:17
Speaker 2: That's fine. But the content of those pressers, I think,
10:19
Speaker 2: should be looked at, too.
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Speaker 3: You mentioned the escalation with AP, but also the Treasury
10:24
Speaker 3: Department excluded journalists from several outlets, including Bloomberg News, The
10:29
Speaker 3: New York Times and The Wall Street Journal from covering
10:32
Speaker 3: the group of 20 finance ministers summit.
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Speaker 2: I don't think there's been a lawsuit over that. There
10:38
Speaker 2: have been lawsuits filed by the New York Times, in
10:42
Speaker 2: particular over new Pentagon press policies, and those have been
10:45
Speaker 2: successful so far in the court. So this is sort
10:48
Speaker 2: of an extensive, all of executive branch campaign against the press. So,
10:53
Speaker 2: you know, the FTC, the FCC, which has been at
10:57
Speaker 2: war with Disney and ABC, you and I have talked
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Speaker 2: about that. It's not just the one thing. To sort
11:03
Speaker 2: of take a wider lens here, And sometimes those restrictions
11:07
Speaker 2: result in lawsuits, and I'm suspecting sometimes they result in,
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Speaker 2: I don't know if you'd call it negotiations or behind
11:14
Speaker 2: the scenes rather than litigation, but they're all troubling from
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Speaker 2: a First Amendment perspective. Putting aside the sort of technicalities
11:22
Speaker 2: of First Amendment doctrine or due process rights, it is
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Speaker 2: not committing yourself to a free press to conduct yourself
11:30
Speaker 2: the way this administration is, quite the opposite.
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Speaker 3: Tim, President Trump acknowledged that the ban could be struck
11:37
Speaker 3: down by a judge, but he said, I think it's
11:40
Speaker 3: good to point it out whether it survives or doesn't,
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Speaker 3: which is, you know, his, let the courts decide, but
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Speaker 3: it doesn't matter because it's the litigation that counts.
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Speaker 2: Yes, I've made this point before, but I think this
11:51
Speaker 2: administration is exceptional in lots of different ways. But one
11:55
Speaker 2: of the ways they're exceptional is they don't seem to
11:57
Speaker 2: care about winning in court or even impressing judges with,
12:02
Speaker 2: you know, their work, their ethical standards and so forth.
12:05
Speaker 2: The point is the fight. And when he sues the press,
12:09
Speaker 2: the point is to make them defend themselves and put
12:11
Speaker 2: up money to do it. And it's good politics for
12:14
Speaker 2: him to be a plaintiff and the New York Times
12:16
Speaker 2: and the Wall Street Journal to be defendants and so forth.
12:19
Speaker 2: So I think this is more of the same. And
12:21
Speaker 2: when a judge ultimately strikes this down and will strike
12:24
Speaker 2: it down, I predict, they'll call the judge a rogue
12:27
Speaker 2: judge or a liberal judge, no matter which president appointed
12:30
Speaker 2: the judge. And so it's all part of the fight.
12:33
Speaker 2: And the point of it is to pick the fight
12:36
Speaker 2: and to keep this sort of war against journalists and
12:40
Speaker 2: the free press in the news. And it's just part
12:43
Speaker 2: of their political playbook at this point. And when he
12:46
Speaker 2: says things like I'm banning the free press, you're just
12:49
Speaker 2: saying the quiet part really, really out loud in front
12:52
Speaker 2: of a bunch of journalists, no less. So I think
12:55
Speaker 2: that is the sort of thinking, if you want to
12:58
Speaker 2: call it that, that's going on with regard to, you know,
13:02
Speaker 2: Something so blatantly unconstitutional, and you know it is, hasn't
13:06
Speaker 2: clearly been passed through any lawyer's.
13:08
Speaker 1: Desk, right?
13:09
Speaker 2: No lawyers put eyes on that. I think he took
13:12
Speaker 2: some people in his administration by surprise. And of course,
13:15
Speaker 2: then they'll go out and defend it. Because, you know,
13:18
Speaker 2: you shouldn't be allowed in a free country to report
13:22
Speaker 2: the news as you see it based on your reporting.
13:25
Speaker 2: It's just such an astoundingly backwards statement. and it's indefensible,
13:31
Speaker 2: but they will defend it.
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Speaker 3: No other administration has done this, but has any other
13:36
Speaker 3: administration come close or, you know, tried to restrain the
13:41
Speaker 3: press as much as Trump has?
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Speaker 2: I mean, it's a broad historical question, right? So as
13:47
Speaker 2: people will point out when they write about these things,
13:50
Speaker 2: no president loves the press. All presidents chafe at negative coverage.
13:54
Speaker 2: They all complain about the press. But I think That's
13:58
Speaker 2: where the separation begins, right? Complaining about the press is
14:02
Speaker 2: something Trump has every right to do. And he does
14:05
Speaker 2: it all the time. Using the levers of government to
14:08
Speaker 2: punish press because specifically you don't like their coverage. So
14:13
Speaker 2: this is not like a national security case. This is
14:16
Speaker 2: not a wartime dissent is hurting America type situation. This
14:21
Speaker 2: is just a blatant viewpoint-based discrimination. And I'm not aware
14:25
Speaker 2: of any president in the history of the United States
14:29
Speaker 2: that's taken that sort of measure. Surely there were presidents
14:32
Speaker 2: who wanted to. Richard Nixon comes to mind. But he
14:35
Speaker 2: was constrained in ways that Trump isn't, both internally by
14:39
Speaker 2: his own White House counsel and, of course, externally by
14:43
Speaker 2: members of Congress who didn't support everything he wanted to do.
14:47
Speaker 2: So he had his enemies list and clearly was engaged in,
14:50
Speaker 2: you know, some... surveillance of the press and harassment of
14:53
Speaker 2: the press. But as with other things, Trump just takes it,
14:56
Speaker 2: you know, four steps further. And there really isn't, I think,
15:00
Speaker 2: a historical analog in this country, I should note.
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Speaker 3: I'm also curious why he picked those particular outlets and
15:09
Speaker 3: didn't also ban the, you know, the New York Times.
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Speaker 2: Well, he said more to come. So it's not clear.
15:15
Speaker 2: There won't be more on the list by the time
15:17
Speaker 2: the list is compiled. But of course, he's simultaneously appalled
15:22
Speaker 2: at the New York Times coverage, but happy to pick
15:24
Speaker 2: up the phone and try to manipulate that coverage. So, yeah,
15:29
Speaker 2: I'm not convinced those are the only outlets that will
15:32
Speaker 2: come in for this sort of treatment or some other petty,
15:36
Speaker 2: vindictive limitation on their coverage. And, you know, he's sort
15:40
Speaker 2: of at war with the New York Times and the
15:41
Speaker 2: Pentagon case. They're the ones who stepped up, I think, solely.
15:45
Speaker 2: The Pentagon Press Corps walked out. But in terms of
15:48
Speaker 2: filing a lawsuit, I think it's the New York Times
15:51
Speaker 2: that stood alone with support, but as a plaintiff in
15:54
Speaker 2: the lawsuit. So, yeah, there are plenty of outlets that
15:57
Speaker 2: he doesn't like. I'm sure he would prefer to have
16:00
Speaker 2: a press briefing room full of Laura Loomers and other
16:03
Speaker 2: people who are just, you know, lob sycophantic softballs up
16:08
Speaker 2: to him and he knocks them out of the park
16:09
Speaker 2: or he thinks he does. That's not a functioning free press.
16:14
Speaker 2: That's not democracy. I think they know better, but for
16:18
Speaker 2: reasons we've discussed, they're doing this anyway.
16:21
Speaker 3: This is also reminiscent of what happened during the first
16:25
Speaker 3: administration with then-CNN reporter Jim Acosta.
16:29
Speaker 2: He won his case, too, when they decredentialed him because
16:33
Speaker 2: the president didn't like the way he asked questions and
16:35
Speaker 2: the questions he asked in terms of their content. He
16:37
Speaker 2: won his case not on First Amendment grounds, but due
16:40
Speaker 2: process grounds.
16:41
Speaker 3: The D.C.
16:42
Speaker 2: Circuit has very strong free press law on these sorts
16:46
Speaker 2: of decredentialing and exclusionary policies. So it's true that in
16:52
Speaker 2: the AP case, a divided panel granted a stay to
16:56
Speaker 2: the government. I don't know that that's going to survive
16:59
Speaker 2: on appeal. As I said, it's a little bit nuanced.
17:02
Speaker 2: When you talk about spaces like the Oval and Air
17:06
Speaker 2: Force One, You know, one can imagine saying, well, presidents
17:10
Speaker 2: certainly have more authority to sort of screen who gets
17:13
Speaker 2: in there. But, you know, some of what the D.C.
17:16
Speaker 2: Circuit wrote, I thought was a little bit weird. So
17:18
Speaker 2: they said, for example, just being in the Oval and
17:21
Speaker 2: photographing or recording is not news creation. It's not an
17:26
Speaker 2: exercise of the press rights. And I'm like, well, but
17:30
Speaker 2: without that, because they're not commenting on it in real time,
17:35
Speaker 2: but they're informing people of what's going on. So that's
17:39
Speaker 2: a tougher case. That made it into my book.
17:41
Speaker 3: Well, that was also a split decision with two Trump
17:45
Speaker 3: appointees in the majority.
17:48
Speaker 2: But as I said, you could dress that up in
17:50
Speaker 2: a public forum, you know, nuanced First Amendment argument, which
17:54
Speaker 2: they did. And public forum doctrine is its own sort
17:58
Speaker 2: of manipulable doctrine. And you could make a plausible case
18:02
Speaker 2: on some level. But just to ban specific media institutions...
18:08
Speaker 2: and then say, well, because they don't write things I like,
18:11
Speaker 2: essentially it's just giving away the whole thing.
18:14
Speaker 3: The judge is moving fast because a hearing has been
18:18
Speaker 3: scheduled for Wednesday, so we'll learn more at that time.
18:21
Speaker 3: Thanks so much, Tim. That's Professor Timothy Zick of William &
18:25
Speaker 3: Mary Law School. Turning now to an ICE shooting in
18:29
Speaker 3: Texas this weekend.
18:32
Speaker 1: No more traffic stops by ICE. No more.
18:37
Speaker 3: No more. No more. Not one more. ICE does not
18:42
Speaker 3: know how to conduct traffic stops safely. An attorney for
18:45
Speaker 3: the Venezuelan man shot in Austin, Texas on Sunday during
18:50
Speaker 3: an ICE operation spoke out today saying the DoorDash driver's
18:55
Speaker 3: vehicle was sideswiped by an unmarked vehicle. before he was
19:00
Speaker 3: shot and pulled out of his car. The Department of
19:03
Speaker 3: Homeland Security has released very little information about the case,
19:08
Speaker 3: saying only that it was investigating the shooting of a
19:11
Speaker 3: Venezuelan man in the U.S. illegally who had a final
19:15
Speaker 3: order of removal. At least four people have been fatally
19:19
Speaker 3: shot by ICE agents during immigration enforcement operations this year alone.
19:26
Speaker 3: Joining me is immigration attorney Leon Fresco, a partner at
19:30
Speaker 3: Holland & Knight. Leon, Austin officials say they don't want
19:35
Speaker 3: ICE investigating ICE. But is that what always happens with
19:39
Speaker 3: these ICE shootings?
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Speaker 1: Well, here's the issue. When there is an allegation that
19:45
Speaker 1: a federal officer broke the law in administering federal law,
19:51
Speaker 1: typically if everyone trusted the mechanisms and the infrastructure of
19:57
Speaker 1: the law in place, typically you would have the FBI
20:01
Speaker 1: be the one that investigate this along with the U.S.
20:03
Speaker 1: Attorney's Office and perhaps the Inspector General's Office at that
20:08
Speaker 1: particular agency. And that's always been the way. The problem
20:12
Speaker 1: is that the local officials in a lot of these jurisdictions,
20:16
Speaker 1: and now Austin is a new one, do not trust
20:19
Speaker 1: that that traditional infrastructure of federal officers investigating other federal
20:26
Speaker 1: officers administering federal law will actually lead to an outcome
20:31
Speaker 1: that is a non-biased outcome that is the correct outcome if,
20:36
Speaker 1: let's say, an AI were doing the investigation. And so
20:40
Speaker 1: from that standpoint, they want to engage in their own investigation.
20:44
Speaker 1: The problem is that their jurisdiction is very limited. They
20:48
Speaker 1: can only prosecute a federal officer if essentially he committed
20:53
Speaker 1: cold-blooded murder. So for instance, he went into a 7-Eleven
20:57
Speaker 1: and just decided to just randomly shoot the store clerk
21:01
Speaker 1: and steal a Slurpee. And that had nothing to do
21:03
Speaker 1: with his performance of ICE duties. But if he was
21:06
Speaker 1: in the middle of performance of his ICE duties, the
21:09
Speaker 1: level of immunity is so high that it's very, very
21:13
Speaker 1: difficult for these local officials to actually prosecute a federal
21:18
Speaker 1: official for the crime, which is why in Minnesota you
21:21
Speaker 1: had that issue where the prosecution ended up being a
21:24
Speaker 1: federal prosecution for a lie because that was the easiest
21:27
Speaker 1: thing to actually prosecute the person for rather than for
21:31
Speaker 1: the shooting. that took place in the call of duty.
21:35
Speaker 1: And so from that standpoint, I understand a lot of
21:37
Speaker 1: the political posturing that takes place here. But ideally, the
21:42
Speaker 1: way you would want this to work is for the
21:44
Speaker 1: Office of Inspector General of the Department of Homeland Security
21:47
Speaker 1: to team up with the U.S. Attorney's Office and the
21:50
Speaker 1: FBI to conduct a good faith investigation of the facts
21:54
Speaker 1: of this case.
21:56
Speaker 3: Leon, we've talked about this before. Police are told they
21:59
Speaker 3: can't shoot into cars because of the dangers that can
22:03
Speaker 3: pose to the public unless their own lives are at risk.
22:07
Speaker 3: Why doesn't ICE have a rule like that? This man
22:10
Speaker 3: reportedly didn't have a criminal record.
22:13
Speaker 1: Yeah, well, I mean, there's a couple of steps here.
22:15
Speaker 1: So the first step is absolutely you are correct that
22:19
Speaker 1: unless an officer's life is in imminent danger, the ICE
22:23
Speaker 1: officer should not be shooting into the car of the
22:25
Speaker 1: person that they're trying to apprehend to place them into
22:29
Speaker 1: detention and removal. That's 100% true. So the first threshold
22:33
Speaker 1: question is, does the officer have some basis to believe
22:37
Speaker 1: that they are in imminent danger? Maybe the car is
22:41
Speaker 1: running right into them or something. Who knows? And that
22:44
Speaker 1: the shooting is the only way to prevent this imminent
22:46
Speaker 1: danger from inflicting bodily injury to them. So we don't
22:49
Speaker 1: know that. We'd have to check the video. We'd have
22:52
Speaker 1: to check any witness accounts. The one thing that is
22:55
Speaker 1: different in this case is that I think is fascinating
22:58
Speaker 1: for your listeners is, unlike a lot of the other
23:03
Speaker 1: basically random events where I sort of, you know, have
23:07
Speaker 1: suspicion that someone is here illegally and is pulling them
23:11
Speaker 1: over and people are being scared, etc., Here, apparently, now
23:14
Speaker 1: they are employing license plate identification technology where the license
23:20
Speaker 1: plate actually is triggered and linked already with the AI
23:24
Speaker 1: to an order, final order of removal, such that ICE
23:27
Speaker 1: knows that the individual with this license plate has a
23:31
Speaker 1: final order of removal. And hence, ICE is saying, once
23:34
Speaker 1: you have that final order of removal, that final order
23:37
Speaker 1: of removal is essentially the judicial warrant that allows them
23:41
Speaker 1: to enter either the house or the person's car in
23:44
Speaker 1: order to get them arrested and place them in detention.
23:47
Speaker 1: And so that is new to the extent that ICE
23:50
Speaker 1: can say. We actually knew that this individual, Wilbur Rafael
23:53
Speaker 1: Garces Perez, had a final order of removal. But nevertheless,
23:58
Speaker 1: that does not justify a shooting in any scenario unless
24:02
Speaker 1: the agent thought that they were in imminent threat of
24:04
Speaker 1: bodily harm.
24:05
Speaker 3: Coming up next, what happens at the airport When a
24:09
Speaker 3: border agent wants to look at your phone, this is Bloomberg.
24:15
Speaker 3: The Second Circuit Court of Appeals has ruled that U.S.
24:19
Speaker 3: border agents can search travelers' belongings like electronic devices without
24:25
Speaker 3: having any suspicion of criminal activity. Circuit Judge Stephen Menascia,
24:31
Speaker 3: Trump appointee, wrote, quote, routine searches at the border are
24:35
Speaker 3: reasonable and simply because those searches occur at the border.
24:40
Speaker 3: I've been talking to immigration law expert Leon Fresco of
24:43
Speaker 3: Holland & Knight. Leon, does this decision make any new findings,
24:48
Speaker 3: or is this what was held before?
24:52
Speaker 1: So there's a couple of types of cases. So for
24:55
Speaker 1: this type of case, where the border patrol officer is
24:59
Speaker 1: only looking with their own eyes at the phone, the
25:03
Speaker 1: government is undefeated there. There's no court that's held that
25:07
Speaker 1: when anybody crosses the border, whether it be a foreign national,
25:10
Speaker 1: a U.S. citizen, in this case, it was a lawful
25:12
Speaker 1: permanent resident suspected of fraud. In any of these cases,
25:17
Speaker 1: the government is allowed to take your phone and just
25:21
Speaker 1: look at it with their own eyes, meaning just like
25:24
Speaker 1: they would look at your suitcase. And the idea is
25:27
Speaker 1: in both scenarios, whether they're looking at your phone or
25:30
Speaker 1: at your suitcase, they are allowed to look for drugs,
25:33
Speaker 1: Stolen artifacts, let's say, you know, you maybe stole something
25:36
Speaker 1: from a museum abroad or something, or food customs, you know,
25:40
Speaker 1: where they say, did you declare any livestock or things
25:43
Speaker 1: like that? So they're allowed to look for those things.
25:45
Speaker 1: And the idea is you could have similar types of
25:47
Speaker 1: contraband on your phone, digital theft or pirating or whatever else.
25:54
Speaker 1: So from that standpoint, the courts do not view that
25:57
Speaker 1: as different. Where there is a circuit split, can the
26:00
Speaker 1: government take your phone and now conduct a digital scan
26:05
Speaker 1: of your phone? They do that. Many times in the
26:07
Speaker 1: Border Patrol, they do digital imaging of phones, and then
26:11
Speaker 1: they have every single micro-byte of every piece of data
26:16
Speaker 1: that your phone has ever had. Every person you've ever called,
26:19
Speaker 1: every person you've ever texted, everything you've said in those texts,
26:23
Speaker 1: every email you've sent, etc., And in those, there's a
26:27
Speaker 1: circuit split between whether the government needs a reasonable suspicion
26:30
Speaker 1: that you're committing a crime in order to do that,
26:34
Speaker 1: or whether they can even do that too without a warrant.
26:37
Speaker 1: And that's the one I think is going to go
26:38
Speaker 1: up to the Supreme Court. But I also think there's
26:41
Speaker 1: going to be a second one that will eventually make
26:44
Speaker 1: its way up to the Supreme Court, because I've been
26:46
Speaker 1: seeing this in many, many Twitter messages and LinkedIn messages.
26:51
Speaker 1: is that lawyers are getting searched and they're saying that
26:55
Speaker 1: those devices are privileged because they contain attorney-client privilege information
27:01
Speaker 1: and that the CBP is not respecting the boundaries of
27:04
Speaker 1: the data that's privileged. And the CBP is saying that
27:08
Speaker 1: they can inspect all of it. And so I do
27:11
Speaker 1: think that is also going to be a very interesting
27:14
Speaker 1: area too, are the rights of lawyers and what is
27:17
Speaker 1: allowed to be searched there.
27:19
Speaker 3: The circuit judge said routine searches at the border are
27:23
Speaker 3: reasonable simply because those searches occur at the border. So
27:27
Speaker 3: the border is a unique situation, different from other places.
27:31
Speaker 1: Correct. The point is, again, there's a lot of things
27:34
Speaker 1: you're not allowed to bring into America. You're not allowed
27:37
Speaker 1: to bring in certain types of livestock or drugs or
27:41
Speaker 1: food of different kinds. etc. And so the idea is
27:46
Speaker 1: there's not contraband that you're allowed to bring in on
27:48
Speaker 1: your phone either. And so it's technically a search for contraband.
27:52
Speaker 1: That's how they justify it. And they say that just
27:55
Speaker 1: like they can search your bag, your phone is essentially
27:58
Speaker 1: your bag if all that the agent is doing is
28:01
Speaker 1: looking at it with his eyes or her eyes. The
28:04
Speaker 1: difference is once they use machinery to search, is that
28:07
Speaker 1: a different matter? And that's where the courts are split.
28:11
Speaker 1: And we're going to have to see what happens there.
28:13
Speaker 3: Next stop, Supreme Court. So you were talking about people
28:17
Speaker 3: being afraid that they're going to be removed to third countries.
28:20
Speaker 3: How often has that been happening in the Trump administration?
28:23
Speaker 1: It's actually happening probably in the couple of hundreds. But
28:28
Speaker 1: the point is they're so publicized and the administration is
28:33
Speaker 1: really trying to publicize them to a very high extent.
28:37
Speaker 1: And what they do is they couple this. They say,
28:39
Speaker 1: take the $ 3, 500 and self-deport yourself. Or we're going to
28:44
Speaker 1: send you to Eritrea, the Congo, Rwanda, Eswatini, wherever else.
28:51
Speaker 1: And so they have all these deals. Ghana, they've had
28:54
Speaker 1: all these deals they've made with various countries in Africa
28:57
Speaker 1: for third country removals. And Cuban foreign nationals and Venezuelan
29:03
Speaker 1: foreign nationals have been sent there. And also people from
29:07
Speaker 1: Asian countries where we can't deport them, like China or Cambodia.
29:12
Speaker 1: And so from that perspective, the case here involves, it's
29:18
Speaker 1: a First Circuit challenge to that. What if you say, hey,
29:21
Speaker 1: I'm also going to be persecuted in this other country,
29:25
Speaker 1: such as wherever it may be, Congo, Eswatini, Rwanda, et cetera.
29:30
Speaker 1: And so the First Circuit just issued an order because
29:34
Speaker 1: the Supreme Court had stayed a preliminary injunction. So in
29:38
Speaker 1: that world, that meant that the preliminary injunction was gone.
29:41
Speaker 1: So now we're doing the final case. And in the
29:44
Speaker 1: final case, what the court said was, even though procedurally
29:50
Speaker 1: these plaintiffs didn't show that they were denied a specific
29:54
Speaker 1: country that they wanted to be deported to, they did
29:57
Speaker 1: have a right, if there was going to be a
29:59
Speaker 1: third country that they were going to be deported to,
30:02
Speaker 1: to be able to have a hearing as to whether
30:04
Speaker 1: they would face danger or persecution in that third country.
30:08
Speaker 1: The federal government's position was, we already got diplomatic assurances
30:14
Speaker 1: from these countries that these people would be unharmed, and
30:17
Speaker 1: so the court has to credit those diplomatic assurances. It's
30:20
Speaker 1: not allowed to litigate behind those diplomatic assurances and say,
30:25
Speaker 1: we don't believe them. We have to look at what's
30:28
Speaker 1: actually going on in the country. So that's actually going
30:31
Speaker 1: to be a very interesting issue. It's not really the
30:34
Speaker 1: issue of is due process required before we send you
30:39
Speaker 1: to Eswatini or to Eritrea. The real issue is what
30:45
Speaker 1: happens if Eritrea gives a diplomatic assurance that Is the
30:49
Speaker 1: Supreme Court going to say that the courts, under some
30:51
Speaker 1: sort of political question doctrine or foreign policy doctrine, are
30:56
Speaker 1: not allowed to basically disrespect those diplomatic assurances and say
31:02
Speaker 1: we don't believe them? That, I think, is the fascinating
31:06
Speaker 1: judicial question, and the Supreme Court is going to have
31:08
Speaker 1: to decide that.
31:09
Speaker 3: Has any other circuit ruled on this?
31:12
Speaker 4: No.
31:12
Speaker 1: I mean, all we have is the First Circuit right
31:14
Speaker 1: now saying that at the moment you get that due
31:18
Speaker 1: process right to say in your individual case, are you
31:22
Speaker 1: going to be persecuted or are you going to be
31:25
Speaker 1: tortured or otherwise severely harmed by going to that third country?
31:29
Speaker 1: And only if an adjudicator says that that won't happen,
31:33
Speaker 1: do you get to be removed there? That's not what
31:37
Speaker 1: the Department of Homeland Security wants. They want that ended
31:40
Speaker 1: the second that the diplomatic assurances are given and so
31:44
Speaker 1: at the moment the DHS general counsel says that because
31:48
Speaker 1: the mandate has an issue the mandate is sort of
31:50
Speaker 1: the official official ruling there's a ruling but that ruling
31:54
Speaker 1: can always be reheard and so because that mandate has
31:57
Speaker 1: an issue they're still at the moment removing people to
32:01
Speaker 1: third countries but we're going to see what happens if
32:04
Speaker 1: uh if that will continue much longer I want to talk.
32:08
Speaker 3: To you about a case that we're waiting for an
32:11
Speaker 3: answer from the Supreme Court on. The Justice Department asked
32:15
Speaker 3: about two weeks ago for the Supreme Court to allow
32:19
Speaker 3: the Trump administration to resume expansion of this internal government
32:24
Speaker 3: database that we've talked about before, the SAVE database. And
32:28
Speaker 3: a judge has put a hold on it. So what
32:31
Speaker 3: does the federal government want here?
32:33
Speaker 1: Well, what the federal government wants is an order that
32:36
Speaker 1: basically says that there's a very slow system that can
32:42
Speaker 1: identify what states need, which is the information that says
32:46
Speaker 1: whether people are actually U.S. citizens or not. And so
32:49
Speaker 1: they need to be able to use this SAVE database,
32:53
Speaker 1: which is the only database that can confirm citizenship. And
32:56
Speaker 1: so they want an order allowing them to be able
33:00
Speaker 1: to use that for this upcoming election. And there's a
33:04
Speaker 1: bunch of now... Forgetting about the merits of whether this
33:07
Speaker 1: violates the Privacy Act and the Social Security Act and
33:10
Speaker 1: the Administrative Procedure Act and all of that. Now, there's
33:14
Speaker 1: an issue about the timing and the overlap of things
33:17
Speaker 1: like the quiet period, which is this 90-day period under
33:21
Speaker 1: the Voting Rights Act, which says that you can't be
33:23
Speaker 1: doing these changes and purging people out of the election,
33:27
Speaker 1: these systematic purges within 90 days of an election.
33:30
Speaker 3: And so.
33:32
Speaker 1: You have that and the linkage with the mailing case
33:36
Speaker 1: where just as Kavanaugh was concerned about putting in the U.S.
33:40
Speaker 1: mail and the voting so close to the election, the
33:43
Speaker 1: same logic would tend to apply here. You're already September 21st.
33:47
Speaker 1: Voting is either happening in some places, early voting, or
33:52
Speaker 1: it will be starting very soon. And if you're going
33:54
Speaker 1: to start having significant purges from the voter rolls, you know,
33:59
Speaker 1: where people might actually be mistakenly purged. It's not really
34:02
Speaker 1: a problem, obviously, if you're purging a non-citizen from the
34:05
Speaker 1: voting roll. But the concern is that you would purge
34:08
Speaker 1: a naturalized citizen from the voting roll because they didn't
34:12
Speaker 1: get updated into the Said database. which there is evidence
34:17
Speaker 1: that does happen. So to the extent that any decent-sized
34:21
Speaker 1: number of people would be purged from the voting roll
34:24
Speaker 1: because they were naturalized and didn't get this database update,
34:29
Speaker 1: that's the concern here.
34:31
Speaker 3: We'll see how long it takes the Supreme Court to
34:32
Speaker 3: make a decision on this. We keep waiting for it.
34:36
Speaker 3: Thanks so much, Leon. That's Leon Fresco, a partner at
34:39
Speaker 3: Holland & Knight. And that's it for this edition of
34:42
Speaker 3: the Bloomberg Law Show. Remember, you can always get the
34:45
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34:48
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34:57
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35:02
Speaker 3: I'm June Grosso, and you're listening to Bloomberg.