December 4, 2025 • 39 mins
Joshua Kastenberg, a professor at the University of New Mexico Law School and a former judge and lawyer in the US Air Force, discusses the second strike on an alleged Venezuelan drug boat. Then Judge Paul Michel, who served on the US Court of Appeals for the Federal Circuit, discusses the use of threats of impeachment against judges. And Leon Fresco, a partner at Holland & Knight and the head of the Office of Immigration Litigation during the Obama administration, discusses the firing of immigration judges. June Grasso hosts.
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Speaker 1 (00:02):
This is Bloomberg Law with June Grosseo from Bloomberg Radio.
Speaker 2 (00:08):
What I saw in that room was one of the
most troubling things I've seen in my time in public service.
You have two individuals in clear distress, without any means
of locomotion, with a destroyed vessel, who were killed by
the United States.
Speaker 3 (00:27):
Congressman Jim Hines, the top Democrat on the House Intelligence Committee,
described his reaction to video footage of the second attack
that killed two survivors after an initial strike on an
alleged drug boat in international waters near Venezuela on September two.
Admiral Frank Bradley, who oversaw the attack, and General Dan Caine,
(00:52):
chairman of the Joint Chiefs of Staff, briefed lawmakers today
in a closed door session. Lawmakers and legal experts have
questioned whether a war crime was committed, and two Congressional
panels have opened inquiries to determine whether Bradley or Secretary
of Defense Pete Hegsith might be culpable for orders they
(01:13):
issued during the operation. After the briefing, Hind said, the
admiral confirmed that there had not been a kill them
all order as reported, and that there was not an
order to grant no quarter.
Speaker 2 (01:27):
Admiral Bradley and the Chairman of the Joint Chiefs of
Staff did the right thing, and Admiral Bradley defended the
decisions taken. And Admiral Bradley has a storied career and
he has my respect.
Speaker 3 (01:43):
Joining me is Professor Joshua Castenberg of the University of
New Mexico Law School. He was a military judge and
lawyer in the US Air Force. Josh Democratic Senator Chris
Van Holland said the second strike was an extra judicial killing,
amounting to murder or a war crime. What's your analysis
(02:05):
of the second strike?
Speaker 1 (02:07):
So my take on the second strike is partly colored
by the fact that the administration has this changing narrative constantly,
and the latest narrative that they come up with is
implausible that somehow these men were going to climb back
on the vessel and continue on in their cocaine run.
So having said that, look, you know, the United States
(02:28):
has convened grand juries for murder on the high seas
going back to the War of eighteen twelve, and there's
a federal statute prohibiting precisely what occurred, you know, murder
on the High Seas. Now, of course, Trump himself is
immune from any criminal liability thanks to the Supreme Court's
(02:49):
decision over a summer ago, and you know, Trump versus
United States. But it seems to mean that nobody else
is immune from that kind of a charge and the
other and who's going to pursue it. I don't think
the Attorney General of the United States is going to
differ from the White House's version of events or their
(03:09):
own legal reasoning.
Speaker 3 (03:11):
One of the things that heg Seth said yesterday was
that he left the room, he had other meetings before
the second strike. Let's just say that's true. Who's responsible
the commander Navy Vice Admiral Frank Bradley, who ordered it,
or the Defense secretary who reportedly approved the overall operation.
Speaker 1 (03:35):
Well they all are. And I'm chuckling in a sad
kind of way about that claim of Secretary of Defense
or Secretary of War. Heg Seth's answer and claim, because
at the end of the day, it really doesn't matter
in this regard. You know, coming out of World War One,
if not the Civil War, the United States embraced the
(03:58):
doctrine of command responseility, and we particularly saw that play
out in World War Two at the Nuremberg and International
Tribunal for or crimes in Tokyo. Those trials, and even
in US law when the Army under General MacArthur prosecuted
generally Yamashta, nobody ever alleged that he was the trigger
(04:18):
puller or gave an order for his troops to massacre
thousands of innocent Filipinos. Is the United States liberated the
island they prosecuted, and for failing to control as troops
and for creating the environment where it would be made possible.
The only thing in a real rule of law setting
that would save Hegsath is if he preferred uc him
(04:42):
j charges against the individual who gave the order. But
I don't think that's going to happen. I think they're
all banking on protection from Republican allies in the House
and Senate, in their favorite go to media sources, and
then ultimately presidential pardons, which have now been given to
Honduran drug dealers.
Speaker 3 (05:01):
With the news of this second strike, it seems like
at tension has been diverted a little from the Trump
administration's main campaign against suspected drug smugglers, where the military
has killed eighty three people. What do you think about
the legality of the whole campaign.
Speaker 1 (05:21):
So we are not at war with Venezuela, and the
idea that United States domestic law can reach into Venezuelan
waters has no basis. However, and this is a big caveat.
Under international maritime law, any nation can stop actions such
(05:43):
as piracy or other high crimes that occur on the sea.
In order to do that, you have to have absolute
correct intelligence that a crime such as international drug trafficking
is a occurring, and there has to be some sort
of agreement among nations that that is occurring. And on
(06:06):
top of that, you have to be able to show
that what you're doing is consistent proportionality wise to the
crime involved. And the problem with that second aspect of it,
the proportionality aspect, is that the United States Coast Guard,
which most often does not use that kind of lethal force,
(06:28):
does an excellent job of stopping kilo upon keilo upon
kilo of cocaine coming into the United States. They don't
catch at all. So you know, the argument that this
is lawful is sort of stretching the realism of law
into the alice in Wonderland of law.
Speaker 3 (06:48):
Also yesterday, a Pentagon inspector Jennal's report delivered to lawmakers
found that hag Seth's actions in what's been called sig
Gate posed a risk to personnel and missions. But again,
is this going anywhere? Even if it did well.
Speaker 1 (07:08):
First of all, you'd have to have a member of
the House file an article of impeachment. The article of
impeachment would have to be taken up by a committee,
then by the House. I don't see an appetite for
forcing heg Seth out through the legislative branch by the
Republican Party. Now he of course could resign. The President
(07:29):
could fire him, but I don't see an appetite right
now for that in the White House either, or that
that's possible in terms of the criminal law of the
United States. I don't see any action going against him
on that one. At the end of the day, Unfortunately,
all it is likely to do is to create a
historic legacy on the character of Hegseth himself. But it
(07:53):
also erodes trust within the department, because if you're a
uniform warfighter, you need to have trust in your chain
of command, and this certainly erodes it.
Speaker 3 (08:04):
Let's turn now to the video released last month by
six Democratic members of Congress directly addressing active duty military
and intelligence personnel.
Speaker 1 (08:17):
Right now, the threats to our constitution aren't just coming
from a miroad, but from right here at home.
Speaker 4 (08:21):
Our laws are clear.
Speaker 1 (08:23):
You can refuse illegal orders.
Speaker 4 (08:25):
You can refuse illegal orders.
Speaker 3 (08:27):
You must refuse illegal orders. No one has to carry
out orders that violate the law or our constitution. All
six who have military or intelligence backgrounds were just telling
service members and intelligence officers what the law is. Yet
President Trump has called them traders and said they were
(08:49):
engaging in seditious behavior punishable by death.
Speaker 1 (08:53):
Well, first of all, all the members of the House
and Senate who made that VIDI said was you have
a duty to obey the law, and that includes a
duty to disobey on lawful orders. That's a correct statement
of the law. And I don't think that any investigation
(09:13):
into those members should ever come up as a result
of them making a correct statement of the law. I
think that you know that that concern is real based
on this belicosity that's come out of the White House,
and that belicosity includes the use of the federalized National
Guard in our cities.
Speaker 3 (09:35):
Apparently the FBI headquarters is pressuring. This is, according to
Bloomberg reporting, the bureau's domestic terrorism agents to open a
seditious conspiracy investigation into those six Democratic lawmakers.
Speaker 1 (09:50):
Yeah. You know. I was asked the other day in
the local news if there is precedent for this, or
precedent for a military investigation, and to Senator Mark Kelly,
and I said no that there is not, not in
the United States. There is precedent for it elsewhere. One
(10:12):
of the things that the framers of our constitution and
all their genius wanted to do was to create a
government that was responsible to the people through the legislative branch.
And the last time something like this happened wasn't in
the United States. It was before the United States was created.
(10:33):
It was Oliver Cromwell using his new Model Army to
pressure Parliament to take votes the way that he wanted
them to take votes, including the execution of Charles the First.
We built a constitution to prevent the very thing that
apparently the FBI's leadership seems to now think is plausible
(10:55):
seditious conspiracy. Look to me, if it was a high
crime or misdemeanor, it's the attempt to cower members of
Congress from exercising their free speech rights. It's not the
exercise of those free speech rights themselves.
Speaker 3 (11:14):
Is it sort of absurd to claim that you know
under that statute that this was seditious conspiracy?
Speaker 1 (11:21):
Again, I go back to my Alice in Wonderland quote. Yes,
in the rule of law, it certainly is that you
need to go back to the Civil War, and you
can look at members of Congress slaveholder like Benjamin Gwynn
Harris from Maryland, or a pacifist like Alexander Long, who
gave anti war speeches and in Harris's case, who actually
(11:44):
gave a prayer on the floor of Congress for a
Southern victory. And at no time were those two sitting
members of Congress investigated or prosecuted by the Lincoln Admiration.
I know there are people who say, well, what about
Van Lane, but the Landingham was no longer in Congress,
and even that episode has been condemned today. So no,
(12:07):
I mean this. You know, every time you and I
speak about the administration, I say, look, they're pushed the envelope.
But on this particular case, this truly is it's beyond absurd,
It's truly an affront to the Constitution, the separation of powers,
and the ability of members of Congress to represent their
(12:28):
constituents on the very fundamental positions that a majority of
their constituents elected them to do. Again, it goes back
to the pre revolutionary days, the mentality of Cromwell and
the rule of the major generals and the dictatorship of
the mid sixteen hundreds in Britain, the very thing we
had a revolution against.
Speaker 3 (12:48):
Thanks so much, josh that's Professor Joshua Castenberg of the
University of New Mexico Law School. Coming up next. Why
do Republicans keep filing articles of impeachment against judge they
disagree with? This is Bloomberg.
Speaker 1 (13:03):
I am right now calling on the House of Representatives
to impeach Judge bosor.
Speaker 3 (13:07):
Republican Senator Ted Cruz has been on something of a
crusade to impeach judges who issue decisions he doesn't agree with,
not only calling for the impeachment of Judge James Boseberg,
the chief judge of the District Court for the DC's Circuit,
but also Marilyn Judge Deborah Boardman. Cruise even scheduled a
Senate Judiciary subcommittee hearing entitled Impeachment Holding Rogue Judges Accountable,
(13:34):
although that hearings schedule for Wednesday was abruptly canceled on
Wednesday morning. Cruise isn't alone. Republicans have filed a wave
of impeachment resolutions this year against judges they disagree with,
despite the fact that only fifteen judges have faced impeachment
since eighteen oh five and none since twenty ten. More
(13:58):
than fifty retired federal judges appointed by presidents of both
parties are warning that using impeachment as a tool for
political retaliation against judges is a dangerous violation of constitutional
norms and judicial independence. My guest is retired federal appellate
Judge Paul Michelle, who is on the DC Federal Circuit
(14:20):
Court of Appeals. Judge Michelle, why do you think Republicans
are continuing to call for the impeachment of federal judges
when it's so highly highly unlikely that a judge would
be impeached, So why go through this effort?
Speaker 5 (14:37):
Well, June, I think that there is a campaign underway
that seems intended to intimidate judges, to try to shatter
their independence and their ability to rule. Impartially under the law.
It's an attempt to influence their decisions, which is completely improper.
(14:59):
Under our constitutional system, judges are intended to be impartial,
independent of both the Congress and the executive branch. It's
worked well for nearly two hundred and fifty years, and
there's no basis that makes any sense for departing from
that tradition and those precedents. Now. I think the Republican
(15:21):
members who are participating in this kind of a campaign
are just reacting to pressure from the administration and worries
about reelection and contributions and the like. But that's not
a good excuse because they know full well that disagreement
with a ruling by a judge is not a proper
(15:43):
ground for impeachment or removal from office. It's not even
close to a proper ground, because the Constitution itself spells
out explicitly what the proper grounds are, and as you know,
the phrase is treason, bribery, or other high crimes and misdemeanors,
(16:04):
and clearly a judicial ruling applying the law as best
the judge can is none of those things, and therefore
not even close to being a candidate for impeachment, much
less trial in the US Senate. So I think it's
basically an exercise and intimidation, a publicity stunt, and not
(16:26):
a serious effort, and it's not responsible. And worse than that,
it's harmful to the country because it shakes the confidence
of all American citizens in the independence and rectitude of
the courts. And everybody in the end depends on the
courts to protect their rights. So everybody has a stake
(16:48):
in this, not just rich people or big corporations. Every
individual citizen is threatened if the court's rule under political
coercion rather than the steady precedents of statutes and higher
court rulings. So this is really a very big deal,
a very big turning point for the country. And for
(17:10):
two centuries and more we haven't had this. We've only
had a total of thirteen judges impeached and about seven
were convicted at Senate trial, and in every case it
was for plainly serious crimes like outright money bribery. Sorry
to say that a judge was guilty of such conduct,
(17:31):
but a few have been over the two hundred years.
But this is totally different. This has nothing to do
with high crimes. This is high politics.
Speaker 3 (17:40):
So judges are human. Do you think that any of them,
perhaps concerned for their safety the safety of their families,
are being intimidated in some way.
Speaker 5 (17:51):
Well, there's certainly efforts to try to intimidate them and
coerce them and affect their rulings. And you're quite correct
to put not only on the judges but on their families.
Judges have had various forms of harassment, over one hundred
cases of unordered pizzas being delivered, often late at night.
(18:12):
In many cases, the pizza deliveries have cited the name
of the murdered son of a judge in New Jersey,
Esther Sallas. Her son answered the door. She was obviously
the target of the assassin, but the son happen to
answer the door and was shot and killed. Judge Sallas's
husband was critically wounded. Fortunately the judge herself was not.
(18:33):
But the whole thing was a horror show. And so
when today's judges get pizzas in the name of Daniel Anderley,
it's a message they know Daniel Anderley was the murdered
son of a fellow judge, And judges tell us that
they knew when they took the job and of course
all judges are volunteers. No one has to be a judge.
(18:55):
It's a high honor. And you know you're going to
be unpopular with a lot of peace. That's in the
nature of the job. You know you'll be criticized in
the media. You know that there will be parties who
will be very unhappy with your rulings. Sometimes both parties
are unhappy, always one party, the losing party, is extremely unhappy,
(19:16):
and often there is criticism from many other people. Judges
all know that they accept that what they can't accept
is serious threats. So, for example, when the swat team
shows up at a judge's house at midnight based on
a malicious false report of a shooting in progress, it
scares the devil out of the whole family and upsets
(19:37):
the judge. So it's not just pizza deliveries, it's also
swat teams. It's also vicious death threats, phone calls, text messages,
and even that children of some judges have been harassed
on their way to school by fanatical individuals who've been
inflamed by extreme rhetoric on social media, including some of
(19:59):
it coming from high government officials and members of the Congress,
which is just despicable and very unfortunate. We've never had
that before in this country and we shouldn't tolerate it.
Speaker 3 (20:12):
Now, speaking of members of Congress, Senator Ted Cruz, who
leads the sub committee, has called for the impeachment of
Judge James Boseberg, a judge whom the Attorney General has
called out by name. Why do you think Boseburg has
been repeatedly targeted.
Speaker 5 (20:29):
Well, he's one of a number of judges who's ruled
in cases involving challenges to the lawfulness of administration actions,
and like some of the other judges, not in every case,
but in some cases they've ruled that the law was
violated by the administration. And in Judge Boseburg's case, Chief
(20:50):
Judge Boseburg, I should say it was more than one
case that upset the administration. Now, as to Senator Cruz,
Senator Cruz is an exceptionally smart individual, a very well
qualified lawyer of great experience. He's an absolutely superb advocate
and was the leading solicitor for the state of Texas
(21:14):
before he became a senator. He was a White House
lawyer before that, and you know the rest of his biography.
He knows better. He knows these are not impeachable offenses.
He knows it clearly, So I can only guess that
he's acting for other motives not to apply the law
of impeachment. Again, whether it's the hearings threatened by Chairman
(21:38):
Cruise of the Judiciary Subcommittee on the Courts, or whether
it's somebody in the White House or the Justice Department,
these threatening verbal attacks cause real danger to judges that
the Marshal Service has bedded and declared that there are
hundreds of serious threats, just crank threats. We're used to
(22:01):
crank threats, that's not so serious, but serious threats and dangers.
As you know, Justice Kavanaugh had a would be assassin
armed on his block prowling around looking for Justice Kavanaugh
and that individuals recently convicted and sentenced. So the dangers
are really quite real.
Speaker 1 (22:21):
Now.
Speaker 5 (22:21):
You asked a very good question earlier. Are the judges
actually being intimidated in the sense that they're changing their
ruling from what they would normally rule. I don't know
of any instance of that so far, but the pressure
campaign has been going on. It started years ago. This
is not only under the present administration. But it has
(22:42):
ramped up dramatically in the last ten months. And ultimately, judges,
however courageous and committed they are, and I think they
are both to a man to a woman, who were
not perfect. But we are devoted to the country. That's
why instead of making a lot of money a big
fancy law firm or corporation, we became judges at far
(23:04):
far lower salaries. It's an honor to serve the people.
I did it for twenty two years. I loved every
day of it, and all the judges talk about it
that way. But ultimately, judges too are human, and if
they feel like their family members are terrified and their
children are being harassed, and there are death threats coming
(23:24):
in that the Marshall Service evaluates as serious, at some
point humans are going to have a stress point of failure,
just like a wing on an airplane. You know, enough
stress and you can break anything, particularly when it's elongated
over time. And that's what we're seeing here. So, yeah,
they're holding up fine now, but can we be assured
(23:45):
they'll continue to hold up fine if this pressure campaign,
which keeps escalating, goes on and on and on, and
the Article three coalition of which I'm a part. As
you know, it's an arm of Keep our Republic of
pre Existing Check charitable Civics education organization that's been in
operation for about five years. The coalition is new just
(24:07):
this year. It has fifty two retired judges, both trial
and impellate as members, and incidentally, about half of them
were appointed by Republican administrations and the other half by
Democratic administration, so it's totally balanced, and it's really non
political because it's a group of people devoted to the
rule of law, not the rule of any one man
(24:28):
or woman. So this is a very dramatic moment for
the country to come to grips with, and I'm very
hopeful that the unbroken tradition and precedent of two hundred
and fifty years will will carry forward and be honored
by everybody in power now and hopefully the really vicious rhetoric,
(24:49):
really inflammatory rhetoric, people being called leftist lunatics and people
who hate America and rogue judges or activist judges. If
a judge is ruling on the basis of personal politics,
that would be fair to say that's an activist judge.
You could also say it's a completely improper judge, betraying
(25:09):
their oath. But if a judge rules against an administration
because of a statute, it's the job of the judge
to interpret the statute and apply it. And if the
judge finds that the administration's action is contrary to law,
the judge is obligated to so rule and to impose remedies,
including injunctions. That's not being activists, that's not being rogue.
(25:35):
It's actually just a judge doing the normal thing that
judges do every single day. That's actually their job. So
instead of being castigated, they should be respected. You don't
have to agree with them, you don't have to like them,
you don't have to like their ruling. You can criticize them,
including in strong terms in public, and that's a constitutional
(25:55):
right of everybody. But to foment violence against is just
beyond any reasonable line.
Speaker 3 (26:04):
Thanks so much for joining me today, judge. That's retired
Judge Paul Michelle of the DC Federal Circuit Court of Appeals.
Coming up next. Why the Trump administration is firing so
many immigration judges? This is bloomberg. The Trump administration has
(26:24):
fired dozens of immigration judges since January. Their employees of
the Justice Department and not housed within an independent court system.
The administration has targeted judges during or at the end
of their two year probationary periods, as well as some
who had sat on the bench for years. The administration
(26:45):
is also installing military lawyers and immigration courts after eliminating
certain requirements for temporary immigration judges. Former immigration judges have
said the firings are aggravating existing case backs that have
clogged the immigration court system and created years long wait
times for foreign citizens to get decisions in their cases.
(27:09):
Some of those let go, like other terminated employees across
the federal government, learned of their dismissals in brief notices
stating the Attorney General had determined under Article two authority
that their continued employment wasn't in the nation's interest. Joining
me is immigration expert Leon Fresco, a partner at Holland
(27:30):
and Knight. He was the head of the Office of
Civil Immigration Litigation in the Obama administration. Leon, why are
they firing immigration judges? Doesn't that slow down the process?
Speaker 4 (27:43):
So this is one of the very challenging issues that
is involved with regard to their building up of the
infrastructure to try to create this larger enforcement or deportation framework.
Is is they think that they can't build that structure
out if there are too many sympathetic immigration judges in
(28:06):
the structure, because then too many immigration judges will grant
asylum or grant some other form of relief like cancelation
of removal, or they'll allow people to refer their claims
to USCIS because they'll have a qualifying family member who
can save them from deportation. And they don't want any
(28:28):
of that discretion that immigration judges have to save people
in particular cases from deportation to be exercised in favor
of the foreign national. And so you'll actually see this
if you go on Twitter. Is that the way the
administration currently describes what used to be known as an
immigration judge, they call them a deportation judge. And they say,
(28:52):
sign up to become a deportation judge. Apply to become
a deportation judge. And so that is quite a new
because you wouldn't have you know, suppose you see this
every now and then in states and localities where people
run for elected judge positions and they can't run and say, hey,
(29:13):
I'm going to be a hanging judge, vote for me.
You can't say that that's the kind of thing that
will get you disqualified in every case moving forward. If
you said you were running as a hanging judge. But
here they're saying, sign up to be a deportation judge.
And I don't know, sort of strategically, if that is
going to be helpful if there's a future challenge to
(29:36):
the manner in which people who applied to become deportation
judges ended up making rulings in cases. So I just
find that very fascinating.
Speaker 3 (29:46):
Is that why they're installing military lawyers at immigration courts?
Speaker 4 (29:51):
So they're trying to figure out ways to strain people
who don't necessarily have a lot of immigration experience and
on the background of immigration law, so that they can
sort of say, here is a way to look at
the law as opposed to people who had experienced immigration
law and have come to it from the backbone of
(30:14):
their experiences. They're trying to find people with less experience
so they can train them and give sort of a
patterned this is how you decide everything, and because they
haven't seen it, they will say, okay, so this is
the pattern. The issue is quite Interestingly, I've worked with
a lot of members of the military who have come
from the Judge Advocate General's office and other places, who
(30:36):
go either to the Department of Justice or the immigration court,
and it turns out a lot of them end up
being just as sympathetic as any as anyone else, because
people are human beings that they're super complicated and you
can't just stereotype anybody or put them into any sort
of bucket, and so all of these efforts, yes, you
(30:58):
might be able to weigh it in oneicular way or another,
but all of these efforts surprisingly will still yield sympathetic
decisions in some cases because people are still human beings,
and this is all an enterprise about humanity. At the
end of the day. It's not about numbers, it's not
about money, it's not about anything else. There's human beings
(31:18):
in a court standing in front of you telling you
their story. And it's just very hard, no matter who
you are. Every day, if you're just going to just
say the port, the port to port, the port, that
just weighs on you if you know in your mind
you're doing it in a way that's not fair to
the law or consistent to the facts, and so I
just think a lot of these efforts I understand where
(31:40):
if you're doing it from the standpoint of the administration,
you want to at least get people who aren't inclined
to say yes every single time, because you're trying to
create a more rigorous enforcement regime. So you don't want
to have people who start with yes and begrudgingly go
to know. You might want people who start with no
(32:01):
and begrudgingly get the yes, But that's the best that
anybody's going to be able to do in a situation
like this. There's not going to be one hundred judges
who are hired that all deport every single person in
front of them, because that's just not the way these
things tend to work.
Speaker 3 (32:18):
I want to ask you about denaturalization. So the Trump
administration has made threats to revoke the citizenship of political
foes who are naturalized citizens, and before that very friendly
meeting in the Oval Office, there were threats to denaturalize
and deport New York City may elect Zoran Mandami. Mandami
(32:42):
is one of nearly twenty five million naturalized citizens currently
living in the country. Is the Trump administration actively trying
to denaturalize citizens.
Speaker 4 (32:54):
Well, they have people in the Justice Department, because the
way the naturalization works is it's a very complicated thing.
It's not something that is simple at all. You have
to build a case. So just like the FBI has
to build a criminal case, the Department of Homeland Security
has to build a case as to why there was
(33:14):
a misrepresentation made either in the green card process or
the citizenship process. That then is material enough that if
you go and you were to present you have to
present a complaint in the federal court. That would work
very similarly to an indictment in the sense that you've
got to file it, you've got to have down then
(33:34):
a trial, you've got to have that whole process, and
you have to basically say, had we known this fact,
we would have refused the case. That's basically what you
have to show in that and so that's very intensive.
You're talking about on any particular denaturalization case, hundreds of
hours of total government work in terms of manpower in
(33:56):
order to get that done. And so they do want
to do that, but when we're talking about tens of
thousands of people, they don't have the infrastructure in place
to do that. So what they have to do is
try to find cases that are sort of powerful cases
where bold messages are sent about people who made misrepresentations
(34:18):
in the process, because then that will yield the response
perhaps that they might want of people then taking matters
in their own hands and leaving because they're worried that
they will get denaturalized. But in terms of having tens
of thousands of denaturalizations, the problem is with that. You
need lawyers from the Department of Justice who do those cases.
(34:39):
You need obviously the federal courts to schedule those cases,
you need the Department of Homeland Security to have people
to investigate those cases, and so that infrastructure is there
at most for twenty five hundred to five thousand cases
a year, which would be, by the way, an exponential
(35:00):
the higher record than has ever been done before. Usually
we're talking about several hundred cases a year. So if
you did five thousand the naturalization cases, that would be
leaps and bounds above the highest that's ever been done.
But the point being that's what you would maybe try
to accomplish if you were in the Trump administration.
Speaker 3 (35:21):
Leon I read that there were a lot of denaturalizations
during the Obama administration, but you never heard about it.
Speaker 4 (35:28):
Well, so here's what happened, because I was literally there.
I was I know, I was in charge of the department.
Is there was something called Operation Janice, which was a
you know, Janus being the person with two phases. There
was a discovery of a large number of people who
had been deported from the United States at some point
(35:50):
in their life. We're talking about when there was no
serious technology in the eighties, in the seventies, you know,
that kind of thing. And so what do they do
if you're deported, You can't just come back into the
United States. So they make up a new person that
they are. And so they say, you know, yes, I
may have been John Smith when I was deported, but
(36:11):
now I'm Jerry Jones. And so you know, they don't
tell you that they were John Smith. They just return
as Jerry Jones in that situation. So there was about
three hundred of those cases that were done during the
Obama administration, which was considered it a lot, but still
is it the kind of thing I'm talking about, which
is that if they did five thousand, let's say, it
(36:32):
would be a massive improvement over three hundred.
Speaker 3 (36:35):
Very interesting because I don't think many people know much
about denaturalization. Thanks so much, Leon. That's Leon Fresco, a
partner at hollanden Knight. In other legal news today, in
a big win for Republicans, the conservative justices on the
Supreme Court have cleared Texas to use a new Republican
(36:56):
drawn congressional map for next year's election, bolstering GOP hopes
of picking up as many as five new house seats
in the state. Here's Bloomberg New Supreme Court reporter Greg
Store with more on that decision.
Speaker 6 (37:10):
So, the Supreme Court said several things. Kind of the
first half of it is we think the lower court
got it wrong, and the second half of it is
this decision came too close to the election to take effect.
With the first half of it, the court said that
the district court did not honor what it called the
presumption of legislative good faith. In other words, the lower
(37:32):
court was too quick to assume that the or to
decide that the state was doing something it shouldn't do
by using race too much. And then the second thing
the Supreme Court said is that normally, in these racial
gerrymandering cases, courts require somebody who's challenging a map to
produce an alternative map that would have accomplished the state's
(37:56):
goals in this case, drawing more Republican friendly seat without
using race so much so, the lower court did not
require that in this case, and the Supreme Court said
that was a problem. So those were preliminary decisions by
the Supreme Court, but they strongly suggest that they think
the lower court got it wrong. And then the second
half of it is that the Supreme Court in the
(38:18):
past has said that federal courts need to be really
careful about issuing rulings that change the election rules for
states on the eve of an election. And because the
candidate filing deadline is next week in Texas, we for
the sake of Texas, are pretty much on the eve
of the election.
Speaker 3 (38:36):
That's Bloomberg Supreme Court Reporter Greg Store and that's it
for this edition of The Bloomberg Law Show. Remember you
can always get the latest legal news on our Bloomberg
Law Podcast. You can find them on Apple Podcasts, Spotify,
and at www dot Bloomberg dot com, slash podcast Slash Law,
And remember to tune into The Bloomberg Law Show every
(38:58):
weeknight at ten pm. Wall Street time, I'm June Grosso
and you're listening to Bloomberg
Speaker 2 (39:08):
M
This is Bloomberg Law with June Grosseo from Bloomberg Radio.
Speaker 2 (00:08):
What I saw in that room was one of the
most troubling things I've seen in my time in public service.
You have two individuals in clear distress, without any means
of locomotion, with a destroyed vessel, who were killed by
the United States.
Speaker 3 (00:27):
Congressman Jim Hines, the top Democrat on the House Intelligence Committee,
described his reaction to video footage of the second attack
that killed two survivors after an initial strike on an
alleged drug boat in international waters near Venezuela on September two.
Admiral Frank Bradley, who oversaw the attack, and General Dan Caine,
(00:52):
chairman of the Joint Chiefs of Staff, briefed lawmakers today
in a closed door session. Lawmakers and legal experts have
questioned whether a war crime was committed, and two Congressional
panels have opened inquiries to determine whether Bradley or Secretary
of Defense Pete Hegsith might be culpable for orders they
(01:13):
issued during the operation. After the briefing, Hind said, the
admiral confirmed that there had not been a kill them
all order as reported, and that there was not an
order to grant no quarter.
Speaker 2 (01:27):
Admiral Bradley and the Chairman of the Joint Chiefs of
Staff did the right thing, and Admiral Bradley defended the
decisions taken. And Admiral Bradley has a storied career and
he has my respect.
Speaker 3 (01:43):
Joining me is Professor Joshua Castenberg of the University of
New Mexico Law School. He was a military judge and
lawyer in the US Air Force. Josh Democratic Senator Chris
Van Holland said the second strike was an extra judicial killing,
amounting to murder or a war crime. What's your analysis
(02:05):
of the second strike?
Speaker 1 (02:07):
So my take on the second strike is partly colored
by the fact that the administration has this changing narrative constantly,
and the latest narrative that they come up with is
implausible that somehow these men were going to climb back
on the vessel and continue on in their cocaine run.
So having said that, look, you know, the United States
(02:28):
has convened grand juries for murder on the high seas
going back to the War of eighteen twelve, and there's
a federal statute prohibiting precisely what occurred, you know, murder
on the High Seas. Now, of course, Trump himself is
immune from any criminal liability thanks to the Supreme Court's
(02:49):
decision over a summer ago, and you know, Trump versus
United States. But it seems to mean that nobody else
is immune from that kind of a charge and the
other and who's going to pursue it. I don't think
the Attorney General of the United States is going to
differ from the White House's version of events or their
(03:09):
own legal reasoning.
Speaker 3 (03:11):
One of the things that heg Seth said yesterday was
that he left the room, he had other meetings before
the second strike. Let's just say that's true. Who's responsible
the commander Navy Vice Admiral Frank Bradley, who ordered it,
or the Defense secretary who reportedly approved the overall operation.
Speaker 1 (03:35):
Well they all are. And I'm chuckling in a sad
kind of way about that claim of Secretary of Defense
or Secretary of War. Heg Seth's answer and claim, because
at the end of the day, it really doesn't matter
in this regard. You know, coming out of World War One,
if not the Civil War, the United States embraced the
(03:58):
doctrine of command responseility, and we particularly saw that play
out in World War Two at the Nuremberg and International
Tribunal for or crimes in Tokyo. Those trials, and even
in US law when the Army under General MacArthur prosecuted
generally Yamashta, nobody ever alleged that he was the trigger
(04:18):
puller or gave an order for his troops to massacre
thousands of innocent Filipinos. Is the United States liberated the
island they prosecuted, and for failing to control as troops
and for creating the environment where it would be made possible.
The only thing in a real rule of law setting
that would save Hegsath is if he preferred uc him
(04:42):
j charges against the individual who gave the order. But
I don't think that's going to happen. I think they're
all banking on protection from Republican allies in the House
and Senate, in their favorite go to media sources, and
then ultimately presidential pardons, which have now been given to
Honduran drug dealers.
Speaker 3 (05:01):
With the news of this second strike, it seems like
at tension has been diverted a little from the Trump
administration's main campaign against suspected drug smugglers, where the military
has killed eighty three people. What do you think about
the legality of the whole campaign.
Speaker 1 (05:21):
So we are not at war with Venezuela, and the
idea that United States domestic law can reach into Venezuelan
waters has no basis. However, and this is a big caveat.
Under international maritime law, any nation can stop actions such
(05:43):
as piracy or other high crimes that occur on the sea.
In order to do that, you have to have absolute
correct intelligence that a crime such as international drug trafficking
is a occurring, and there has to be some sort
of agreement among nations that that is occurring. And on
(06:06):
top of that, you have to be able to show
that what you're doing is consistent proportionality wise to the
crime involved. And the problem with that second aspect of it,
the proportionality aspect, is that the United States Coast Guard,
which most often does not use that kind of lethal force,
(06:28):
does an excellent job of stopping kilo upon keilo upon
kilo of cocaine coming into the United States. They don't
catch at all. So you know, the argument that this
is lawful is sort of stretching the realism of law
into the alice in Wonderland of law.
Speaker 3 (06:48):
Also yesterday, a Pentagon inspector Jennal's report delivered to lawmakers
found that hag Seth's actions in what's been called sig
Gate posed a risk to personnel and missions. But again,
is this going anywhere? Even if it did well.
Speaker 1 (07:08):
First of all, you'd have to have a member of
the House file an article of impeachment. The article of
impeachment would have to be taken up by a committee,
then by the House. I don't see an appetite for
forcing heg Seth out through the legislative branch by the
Republican Party. Now he of course could resign. The President
(07:29):
could fire him, but I don't see an appetite right
now for that in the White House either, or that
that's possible in terms of the criminal law of the
United States. I don't see any action going against him
on that one. At the end of the day, Unfortunately,
all it is likely to do is to create a
historic legacy on the character of Hegseth himself. But it
(07:53):
also erodes trust within the department, because if you're a
uniform warfighter, you need to have trust in your chain
of command, and this certainly erodes it.
Speaker 3 (08:04):
Let's turn now to the video released last month by
six Democratic members of Congress directly addressing active duty military
and intelligence personnel.
Speaker 1 (08:17):
Right now, the threats to our constitution aren't just coming
from a miroad, but from right here at home.
Speaker 4 (08:21):
Our laws are clear.
Speaker 1 (08:23):
You can refuse illegal orders.
Speaker 4 (08:25):
You can refuse illegal orders.
Speaker 3 (08:27):
You must refuse illegal orders. No one has to carry
out orders that violate the law or our constitution. All
six who have military or intelligence backgrounds were just telling
service members and intelligence officers what the law is. Yet
President Trump has called them traders and said they were
(08:49):
engaging in seditious behavior punishable by death.
Speaker 1 (08:53):
Well, first of all, all the members of the House
and Senate who made that VIDI said was you have
a duty to obey the law, and that includes a
duty to disobey on lawful orders. That's a correct statement
of the law. And I don't think that any investigation
(09:13):
into those members should ever come up as a result
of them making a correct statement of the law. I
think that you know that that concern is real based
on this belicosity that's come out of the White House,
and that belicosity includes the use of the federalized National
Guard in our cities.
Speaker 3 (09:35):
Apparently the FBI headquarters is pressuring. This is, according to
Bloomberg reporting, the bureau's domestic terrorism agents to open a
seditious conspiracy investigation into those six Democratic lawmakers.
Speaker 1 (09:50):
Yeah. You know. I was asked the other day in
the local news if there is precedent for this, or
precedent for a military investigation, and to Senator Mark Kelly,
and I said no that there is not, not in
the United States. There is precedent for it elsewhere. One
(10:12):
of the things that the framers of our constitution and
all their genius wanted to do was to create a
government that was responsible to the people through the legislative branch.
And the last time something like this happened wasn't in
the United States. It was before the United States was created.
(10:33):
It was Oliver Cromwell using his new Model Army to
pressure Parliament to take votes the way that he wanted
them to take votes, including the execution of Charles the First.
We built a constitution to prevent the very thing that
apparently the FBI's leadership seems to now think is plausible
(10:55):
seditious conspiracy. Look to me, if it was a high
crime or misdemeanor, it's the attempt to cower members of
Congress from exercising their free speech rights. It's not the
exercise of those free speech rights themselves.
Speaker 3 (11:14):
Is it sort of absurd to claim that you know
under that statute that this was seditious conspiracy?
Speaker 1 (11:21):
Again, I go back to my Alice in Wonderland quote. Yes,
in the rule of law, it certainly is that you
need to go back to the Civil War, and you
can look at members of Congress slaveholder like Benjamin Gwynn
Harris from Maryland, or a pacifist like Alexander Long, who
gave anti war speeches and in Harris's case, who actually
(11:44):
gave a prayer on the floor of Congress for a
Southern victory. And at no time were those two sitting
members of Congress investigated or prosecuted by the Lincoln Admiration.
I know there are people who say, well, what about
Van Lane, but the Landingham was no longer in Congress,
and even that episode has been condemned today. So no,
(12:07):
I mean this. You know, every time you and I
speak about the administration, I say, look, they're pushed the envelope.
But on this particular case, this truly is it's beyond absurd,
It's truly an affront to the Constitution, the separation of powers,
and the ability of members of Congress to represent their
(12:28):
constituents on the very fundamental positions that a majority of
their constituents elected them to do. Again, it goes back
to the pre revolutionary days, the mentality of Cromwell and
the rule of the major generals and the dictatorship of
the mid sixteen hundreds in Britain, the very thing we
had a revolution against.
Speaker 3 (12:48):
Thanks so much, josh that's Professor Joshua Castenberg of the
University of New Mexico Law School. Coming up next. Why
do Republicans keep filing articles of impeachment against judge they
disagree with? This is Bloomberg.
Speaker 1 (13:03):
I am right now calling on the House of Representatives
to impeach Judge bosor.
Speaker 3 (13:07):
Republican Senator Ted Cruz has been on something of a
crusade to impeach judges who issue decisions he doesn't agree with,
not only calling for the impeachment of Judge James Boseberg,
the chief judge of the District Court for the DC's Circuit,
but also Marilyn Judge Deborah Boardman. Cruise even scheduled a
Senate Judiciary subcommittee hearing entitled Impeachment Holding Rogue Judges Accountable,
(13:34):
although that hearings schedule for Wednesday was abruptly canceled on
Wednesday morning. Cruise isn't alone. Republicans have filed a wave
of impeachment resolutions this year against judges they disagree with,
despite the fact that only fifteen judges have faced impeachment
since eighteen oh five and none since twenty ten. More
(13:58):
than fifty retired federal judges appointed by presidents of both
parties are warning that using impeachment as a tool for
political retaliation against judges is a dangerous violation of constitutional
norms and judicial independence. My guest is retired federal appellate
Judge Paul Michelle, who is on the DC Federal Circuit
(14:20):
Court of Appeals. Judge Michelle, why do you think Republicans
are continuing to call for the impeachment of federal judges
when it's so highly highly unlikely that a judge would
be impeached, So why go through this effort?
Speaker 5 (14:37):
Well, June, I think that there is a campaign underway
that seems intended to intimidate judges, to try to shatter
their independence and their ability to rule. Impartially under the law.
It's an attempt to influence their decisions, which is completely improper.
(14:59):
Under our constitutional system, judges are intended to be impartial,
independent of both the Congress and the executive branch. It's
worked well for nearly two hundred and fifty years, and
there's no basis that makes any sense for departing from
that tradition and those precedents. Now. I think the Republican
(15:21):
members who are participating in this kind of a campaign
are just reacting to pressure from the administration and worries
about reelection and contributions and the like. But that's not
a good excuse because they know full well that disagreement
with a ruling by a judge is not a proper
(15:43):
ground for impeachment or removal from office. It's not even
close to a proper ground, because the Constitution itself spells
out explicitly what the proper grounds are, and as you know,
the phrase is treason, bribery, or other high crimes and misdemeanors,
(16:04):
and clearly a judicial ruling applying the law as best
the judge can is none of those things, and therefore
not even close to being a candidate for impeachment, much
less trial in the US Senate. So I think it's
basically an exercise and intimidation, a publicity stunt, and not
(16:26):
a serious effort, and it's not responsible. And worse than that,
it's harmful to the country because it shakes the confidence
of all American citizens in the independence and rectitude of
the courts. And everybody in the end depends on the
courts to protect their rights. So everybody has a stake
(16:48):
in this, not just rich people or big corporations. Every
individual citizen is threatened if the court's rule under political
coercion rather than the steady precedents of statutes and higher
court rulings. So this is really a very big deal,
a very big turning point for the country. And for
(17:10):
two centuries and more we haven't had this. We've only
had a total of thirteen judges impeached and about seven
were convicted at Senate trial, and in every case it
was for plainly serious crimes like outright money bribery. Sorry
to say that a judge was guilty of such conduct,
(17:31):
but a few have been over the two hundred years.
But this is totally different. This has nothing to do
with high crimes. This is high politics.
Speaker 3 (17:40):
So judges are human. Do you think that any of them,
perhaps concerned for their safety the safety of their families,
are being intimidated in some way.
Speaker 5 (17:51):
Well, there's certainly efforts to try to intimidate them and
coerce them and affect their rulings. And you're quite correct
to put not only on the judges but on their families.
Judges have had various forms of harassment, over one hundred
cases of unordered pizzas being delivered, often late at night.
(18:12):
In many cases, the pizza deliveries have cited the name
of the murdered son of a judge in New Jersey,
Esther Sallas. Her son answered the door. She was obviously
the target of the assassin, but the son happen to
answer the door and was shot and killed. Judge Sallas's
husband was critically wounded. Fortunately the judge herself was not.
(18:33):
But the whole thing was a horror show. And so
when today's judges get pizzas in the name of Daniel Anderley,
it's a message they know Daniel Anderley was the murdered
son of a fellow judge, And judges tell us that
they knew when they took the job and of course
all judges are volunteers. No one has to be a judge.
(18:55):
It's a high honor. And you know you're going to
be unpopular with a lot of peace. That's in the
nature of the job. You know you'll be criticized in
the media. You know that there will be parties who
will be very unhappy with your rulings. Sometimes both parties
are unhappy, always one party, the losing party, is extremely unhappy,
(19:16):
and often there is criticism from many other people. Judges
all know that they accept that what they can't accept
is serious threats. So, for example, when the swat team
shows up at a judge's house at midnight based on
a malicious false report of a shooting in progress, it
scares the devil out of the whole family and upsets
(19:37):
the judge. So it's not just pizza deliveries, it's also
swat teams. It's also vicious death threats, phone calls, text messages,
and even that children of some judges have been harassed
on their way to school by fanatical individuals who've been
inflamed by extreme rhetoric on social media, including some of
(19:59):
it coming from high government officials and members of the Congress,
which is just despicable and very unfortunate. We've never had
that before in this country and we shouldn't tolerate it.
Speaker 3 (20:12):
Now, speaking of members of Congress, Senator Ted Cruz, who
leads the sub committee, has called for the impeachment of
Judge James Boseberg, a judge whom the Attorney General has
called out by name. Why do you think Boseburg has
been repeatedly targeted.
Speaker 5 (20:29):
Well, he's one of a number of judges who's ruled
in cases involving challenges to the lawfulness of administration actions,
and like some of the other judges, not in every case,
but in some cases they've ruled that the law was
violated by the administration. And in Judge Boseburg's case, Chief
(20:50):
Judge Boseburg, I should say it was more than one
case that upset the administration. Now, as to Senator Cruz,
Senator Cruz is an exceptionally smart individual, a very well
qualified lawyer of great experience. He's an absolutely superb advocate
and was the leading solicitor for the state of Texas
(21:14):
before he became a senator. He was a White House
lawyer before that, and you know the rest of his biography.
He knows better. He knows these are not impeachable offenses.
He knows it clearly, So I can only guess that
he's acting for other motives not to apply the law
of impeachment. Again, whether it's the hearings threatened by Chairman
(21:38):
Cruise of the Judiciary Subcommittee on the Courts, or whether
it's somebody in the White House or the Justice Department,
these threatening verbal attacks cause real danger to judges that
the Marshal Service has bedded and declared that there are
hundreds of serious threats, just crank threats. We're used to
(22:01):
crank threats, that's not so serious, but serious threats and dangers.
As you know, Justice Kavanaugh had a would be assassin
armed on his block prowling around looking for Justice Kavanaugh
and that individuals recently convicted and sentenced. So the dangers
are really quite real.
Speaker 1 (22:21):
Now.
Speaker 5 (22:21):
You asked a very good question earlier. Are the judges
actually being intimidated in the sense that they're changing their
ruling from what they would normally rule. I don't know
of any instance of that so far, but the pressure
campaign has been going on. It started years ago. This
is not only under the present administration. But it has
(22:42):
ramped up dramatically in the last ten months. And ultimately, judges,
however courageous and committed they are, and I think they
are both to a man to a woman, who were
not perfect. But we are devoted to the country. That's
why instead of making a lot of money a big
fancy law firm or corporation, we became judges at far
(23:04):
far lower salaries. It's an honor to serve the people.
I did it for twenty two years. I loved every
day of it, and all the judges talk about it
that way. But ultimately, judges too are human, and if
they feel like their family members are terrified and their
children are being harassed, and there are death threats coming
(23:24):
in that the Marshall Service evaluates as serious, at some
point humans are going to have a stress point of failure,
just like a wing on an airplane. You know, enough
stress and you can break anything, particularly when it's elongated
over time. And that's what we're seeing here. So, yeah,
they're holding up fine now, but can we be assured
(23:45):
they'll continue to hold up fine if this pressure campaign,
which keeps escalating, goes on and on and on, and
the Article three coalition of which I'm a part. As
you know, it's an arm of Keep our Republic of
pre Existing Check charitable Civics education organization that's been in
operation for about five years. The coalition is new just
(24:07):
this year. It has fifty two retired judges, both trial
and impellate as members, and incidentally, about half of them
were appointed by Republican administrations and the other half by
Democratic administration, so it's totally balanced, and it's really non
political because it's a group of people devoted to the
rule of law, not the rule of any one man
(24:28):
or woman. So this is a very dramatic moment for
the country to come to grips with, and I'm very
hopeful that the unbroken tradition and precedent of two hundred
and fifty years will will carry forward and be honored
by everybody in power now and hopefully the really vicious rhetoric,
(24:49):
really inflammatory rhetoric, people being called leftist lunatics and people
who hate America and rogue judges or activist judges. If
a judge is ruling on the basis of personal politics,
that would be fair to say that's an activist judge.
You could also say it's a completely improper judge, betraying
(25:09):
their oath. But if a judge rules against an administration
because of a statute, it's the job of the judge
to interpret the statute and apply it. And if the
judge finds that the administration's action is contrary to law,
the judge is obligated to so rule and to impose remedies,
including injunctions. That's not being activists, that's not being rogue.
(25:35):
It's actually just a judge doing the normal thing that
judges do every single day. That's actually their job. So
instead of being castigated, they should be respected. You don't
have to agree with them, you don't have to like them,
you don't have to like their ruling. You can criticize them,
including in strong terms in public, and that's a constitutional
(25:55):
right of everybody. But to foment violence against is just
beyond any reasonable line.
Speaker 3 (26:04):
Thanks so much for joining me today, judge. That's retired
Judge Paul Michelle of the DC Federal Circuit Court of Appeals.
Coming up next. Why the Trump administration is firing so
many immigration judges? This is bloomberg. The Trump administration has
(26:24):
fired dozens of immigration judges since January. Their employees of
the Justice Department and not housed within an independent court system.
The administration has targeted judges during or at the end
of their two year probationary periods, as well as some
who had sat on the bench for years. The administration
(26:45):
is also installing military lawyers and immigration courts after eliminating
certain requirements for temporary immigration judges. Former immigration judges have
said the firings are aggravating existing case backs that have
clogged the immigration court system and created years long wait
times for foreign citizens to get decisions in their cases.
(27:09):
Some of those let go, like other terminated employees across
the federal government, learned of their dismissals in brief notices
stating the Attorney General had determined under Article two authority
that their continued employment wasn't in the nation's interest. Joining
me is immigration expert Leon Fresco, a partner at Holland
(27:30):
and Knight. He was the head of the Office of
Civil Immigration Litigation in the Obama administration. Leon, why are
they firing immigration judges? Doesn't that slow down the process?
Speaker 4 (27:43):
So this is one of the very challenging issues that
is involved with regard to their building up of the
infrastructure to try to create this larger enforcement or deportation framework.
Is is they think that they can't build that structure
out if there are too many sympathetic immigration judges in
(28:06):
the structure, because then too many immigration judges will grant
asylum or grant some other form of relief like cancelation
of removal, or they'll allow people to refer their claims
to USCIS because they'll have a qualifying family member who
can save them from deportation. And they don't want any
(28:28):
of that discretion that immigration judges have to save people
in particular cases from deportation to be exercised in favor
of the foreign national. And so you'll actually see this
if you go on Twitter. Is that the way the
administration currently describes what used to be known as an
immigration judge, they call them a deportation judge. And they say,
(28:52):
sign up to become a deportation judge. Apply to become
a deportation judge. And so that is quite a new
because you wouldn't have you know, suppose you see this
every now and then in states and localities where people
run for elected judge positions and they can't run and say, hey,
(29:13):
I'm going to be a hanging judge, vote for me.
You can't say that that's the kind of thing that
will get you disqualified in every case moving forward. If
you said you were running as a hanging judge. But
here they're saying, sign up to be a deportation judge.
And I don't know, sort of strategically, if that is
going to be helpful if there's a future challenge to
(29:36):
the manner in which people who applied to become deportation
judges ended up making rulings in cases. So I just
find that very fascinating.
Speaker 3 (29:46):
Is that why they're installing military lawyers at immigration courts?
Speaker 4 (29:51):
So they're trying to figure out ways to strain people
who don't necessarily have a lot of immigration experience and
on the background of immigration law, so that they can
sort of say, here is a way to look at
the law as opposed to people who had experienced immigration
law and have come to it from the backbone of
(30:14):
their experiences. They're trying to find people with less experience
so they can train them and give sort of a
patterned this is how you decide everything, and because they
haven't seen it, they will say, okay, so this is
the pattern. The issue is quite Interestingly, I've worked with
a lot of members of the military who have come
from the Judge Advocate General's office and other places, who
(30:36):
go either to the Department of Justice or the immigration court,
and it turns out a lot of them end up
being just as sympathetic as any as anyone else, because
people are human beings that they're super complicated and you
can't just stereotype anybody or put them into any sort
of bucket, and so all of these efforts, yes, you
(30:58):
might be able to weigh it in oneicular way or another,
but all of these efforts surprisingly will still yield sympathetic
decisions in some cases because people are still human beings,
and this is all an enterprise about humanity. At the
end of the day. It's not about numbers, it's not
about money, it's not about anything else. There's human beings
(31:18):
in a court standing in front of you telling you
their story. And it's just very hard, no matter who
you are. Every day, if you're just going to just
say the port, the port to port, the port, that
just weighs on you if you know in your mind
you're doing it in a way that's not fair to
the law or consistent to the facts, and so I
just think a lot of these efforts I understand where
(31:40):
if you're doing it from the standpoint of the administration,
you want to at least get people who aren't inclined
to say yes every single time, because you're trying to
create a more rigorous enforcement regime. So you don't want
to have people who start with yes and begrudgingly go
to know. You might want people who start with no
(32:01):
and begrudgingly get the yes, But that's the best that
anybody's going to be able to do in a situation
like this. There's not going to be one hundred judges
who are hired that all deport every single person in
front of them, because that's just not the way these
things tend to work.
Speaker 3 (32:18):
I want to ask you about denaturalization. So the Trump
administration has made threats to revoke the citizenship of political
foes who are naturalized citizens, and before that very friendly
meeting in the Oval Office, there were threats to denaturalize
and deport New York City may elect Zoran Mandami. Mandami
(32:42):
is one of nearly twenty five million naturalized citizens currently
living in the country. Is the Trump administration actively trying
to denaturalize citizens.
Speaker 4 (32:54):
Well, they have people in the Justice Department, because the
way the naturalization works is it's a very complicated thing.
It's not something that is simple at all. You have
to build a case. So just like the FBI has
to build a criminal case, the Department of Homeland Security
has to build a case as to why there was
(33:14):
a misrepresentation made either in the green card process or
the citizenship process. That then is material enough that if
you go and you were to present you have to
present a complaint in the federal court. That would work
very similarly to an indictment in the sense that you've
got to file it, you've got to have down then
(33:34):
a trial, you've got to have that whole process, and
you have to basically say, had we known this fact,
we would have refused the case. That's basically what you
have to show in that and so that's very intensive.
You're talking about on any particular denaturalization case, hundreds of
hours of total government work in terms of manpower in
(33:56):
order to get that done. And so they do want
to do that, but when we're talking about tens of
thousands of people, they don't have the infrastructure in place
to do that. So what they have to do is
try to find cases that are sort of powerful cases
where bold messages are sent about people who made misrepresentations
(34:18):
in the process, because then that will yield the response
perhaps that they might want of people then taking matters
in their own hands and leaving because they're worried that
they will get denaturalized. But in terms of having tens
of thousands of denaturalizations, the problem is with that. You
need lawyers from the Department of Justice who do those cases.
(34:39):
You need obviously the federal courts to schedule those cases,
you need the Department of Homeland Security to have people
to investigate those cases, and so that infrastructure is there
at most for twenty five hundred to five thousand cases
a year, which would be, by the way, an exponential
(35:00):
the higher record than has ever been done before. Usually
we're talking about several hundred cases a year. So if
you did five thousand the naturalization cases, that would be
leaps and bounds above the highest that's ever been done.
But the point being that's what you would maybe try
to accomplish if you were in the Trump administration.
Speaker 3 (35:21):
Leon I read that there were a lot of denaturalizations
during the Obama administration, but you never heard about it.
Speaker 4 (35:28):
Well, so here's what happened, because I was literally there.
I was I know, I was in charge of the department.
Is there was something called Operation Janice, which was a
you know, Janus being the person with two phases. There
was a discovery of a large number of people who
had been deported from the United States at some point
(35:50):
in their life. We're talking about when there was no
serious technology in the eighties, in the seventies, you know,
that kind of thing. And so what do they do
if you're deported, You can't just come back into the
United States. So they make up a new person that
they are. And so they say, you know, yes, I
may have been John Smith when I was deported, but
(36:11):
now I'm Jerry Jones. And so you know, they don't
tell you that they were John Smith. They just return
as Jerry Jones in that situation. So there was about
three hundred of those cases that were done during the
Obama administration, which was considered it a lot, but still
is it the kind of thing I'm talking about, which
is that if they did five thousand, let's say, it
(36:32):
would be a massive improvement over three hundred.
Speaker 3 (36:35):
Very interesting because I don't think many people know much
about denaturalization. Thanks so much, Leon. That's Leon Fresco, a
partner at hollanden Knight. In other legal news today, in
a big win for Republicans, the conservative justices on the
Supreme Court have cleared Texas to use a new Republican
(36:56):
drawn congressional map for next year's election, bolstering GOP hopes
of picking up as many as five new house seats
in the state. Here's Bloomberg New Supreme Court reporter Greg
Store with more on that decision.
Speaker 6 (37:10):
So, the Supreme Court said several things. Kind of the
first half of it is we think the lower court
got it wrong, and the second half of it is
this decision came too close to the election to take effect.
With the first half of it, the court said that
the district court did not honor what it called the
presumption of legislative good faith. In other words, the lower
(37:32):
court was too quick to assume that the or to
decide that the state was doing something it shouldn't do
by using race too much. And then the second thing
the Supreme Court said is that normally, in these racial
gerrymandering cases, courts require somebody who's challenging a map to
produce an alternative map that would have accomplished the state's
(37:56):
goals in this case, drawing more Republican friendly seat without
using race so much so, the lower court did not
require that in this case, and the Supreme Court said
that was a problem. So those were preliminary decisions by
the Supreme Court, but they strongly suggest that they think
the lower court got it wrong. And then the second
half of it is that the Supreme Court in the
(38:18):
past has said that federal courts need to be really
careful about issuing rulings that change the election rules for
states on the eve of an election. And because the
candidate filing deadline is next week in Texas, we for
the sake of Texas, are pretty much on the eve
of the election.
Speaker 3 (38:36):
That's Bloomberg Supreme Court Reporter Greg Store and that's it
for this edition of The Bloomberg Law Show. Remember you
can always get the latest legal news on our Bloomberg
Law Podcast. You can find them on Apple Podcasts, Spotify,
and at www dot Bloomberg dot com, slash podcast Slash Law,
And remember to tune into The Bloomberg Law Show every
(38:58):
weeknight at ten pm. Wall Street time, I'm June Grosso
and you're listening to Bloomberg
Speaker 2 (39:08):
M
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