July 21, 2025 • 41 mins
Former federal prosecutor Robert Mintz, a partner at McCarter & English, discusses the Trump administration’s request to open the grand jury transcripts in the Jeffrey Epstein case. Immigration law expert Leon Fresco, a partner at Holland & Knight, discusses the latest immigration law issues. June Grasso hosts.
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Speaker 1 (00:02):
This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2 (00:08):
A growing number of lawmakers on both sides of the
isle are calling for the Justice Department to release all
the files related to Jeffrey Epstein. This despite President Trump's
efforts to downplay them, calling it a hoax and a scam.
Speaker 1 (00:25):
It's all been a big hoax.
Speaker 3 (00:26):
It's perpetrated by the Democrats, and some stupid Republicans and
foolish Republicans fall.
Speaker 2 (00:31):
Into the net, and so they try and do the
Democrats work. Last Thursday, Trump authorized the Justice Department to
seek the release of grand jury testimony from the Epstein
prosecution after The Wall Street Journal published a story alleging
that he once sent a suggestive birthday letter to Epstein.
(00:52):
But some Republicans, like Tennessee Congressman Tim Burchett, are still
saying it's not enough.
Speaker 1 (00:58):
I think it's a start. I don't think we're ever
going to get to the bottom of anything, all of it.
This town doesn't give up its Sacred's very easy.
Speaker 2 (01:05):
Joining me is former federal prosecutor Robert Mintz, a partner
McCarter in English, Bob So. The Trump administration asked a
federal judge to unseal the transcripts in the Epstein case,
this is an unusual motion. Why go through the bother
of making it? What information would you really be able
to get from those transcripts?
Speaker 4 (01:28):
Well, there's no question that the release of grand jury
transcripts raises real privacy concerns about not only the victims,
but even individuals whose names may have come up in
connection with an investigation but were never charged, that would
not have any opportunities to defend themselves if those names
were released. The other thing about the grand jury testimony
(01:51):
that's interesting is that typically the grand jury is used
for the limited purpose of obtaining an indictment. Now, there
are certain ccumstances where prosecutors will use a grand jury
as more of an investigative tool, and in that instance
you might have more witness testimony in front of a
grand jury. But for the most part, when you're the prosecutor,
(02:13):
the last thing you want to do is put a
key witness in front of the grand jury, because that
testimony would then have to be turned over to the
defense council at some point.
Speaker 1 (02:21):
So most of the time.
Speaker 4 (02:23):
All of the critical witness interviews take place outside of
the grand jury, assuming those witnesses are cooperating and they're
done in front of an FBI agent or another investigative agent,
and a report is prepared. But that's not grand jury material,
and that's not the kind of information that will be
released if a judge indeed decides to release these grand
jury transcripts.
Speaker 2 (02:43):
Even if they release transcripts of let's say an FBI
agent's testimony to the grand jury, you wouldn't see, for example,
the notes of witness interviews or photos anything that's attached
to that.
Speaker 4 (02:58):
No, in fact, it's quite the opposite. When the FBI
interview is a witness outside of the grand jury, they
create a report commonly down as an FBI three to
zero two, and that is a detailed report of what
a witness says during the course of an interview. But
when a prosecutor presents is or her case to the
grand jury, if they put an FBI agent on the stand,
(03:20):
that testimony will be very focused and will be very summary,
in the sense that all the prosecutor is looking for
is enough evidence to show a grand jury that there's
probable cause that the crime has been committed, and that
there's enough evidence to move forward with the charges. So
the reality is, as a prosecutor, you want to present
(03:40):
as little information as you need in front of the
grand jury in order to obtain that indictment.
Speaker 1 (03:46):
The other thing.
Speaker 4 (03:46):
About grand jury testimony is that hearstay is admissible, so
that agents routinely will go in to the grand jury
in order to paint an indictment and provide a summary
of witness interviews. They don't have to provide all the
d tails, and the witnesses themselves do not have to
appear to present their testimony in order for the grand
jury or rely on that testimony in deciding whether or
(04:08):
not to return an indictment.
Speaker 2 (04:10):
And Bob talk a little bit about the importance of
protecting grand jury secrecy.
Speaker 4 (04:16):
So grand juries are covered by something called the Federal
Rule of Criminal Procedure sixty. It's a rule that every
federal prosecutor is extremely familiar with, and it prohibits an
attorney from the government or anybody really who is aware
of matters occurring before a grand jury from disclosing any
of that information. In fact, when you represent a witness
(04:37):
who goes to testify before the grand jury, as the lawyer,
even you are not permitted to go inside the grand
jury only the witnesses, and you can debrief your client
after they come out, because the witnesses themselves can talk
about what their testimony was, but nobody else can talk
about what goes on in the grand jury, not any
of the grand jurors and not any of the federal prosecutors.
(05:00):
And there's good reason for that. The grand jury is
an investigative tool. Information is presented to a grand jury
that may not ever result in an indictment. Charges may
never be brought. And the concept behind Rule six e
is that all of those proceedings are secret unless and
until an indictment is returned by that grand jury. And
(05:20):
it's done in order to preserve the privacy of victims
and even the privacy of individuals who prosecutors may suspect
have committed a crime, but ultimately if they're never charged.
The idea that would be unfair to release damaging information
about an individual who then never gets their day in
court if they're never charged with a crime.
Speaker 2 (05:41):
What are the reasons that the Attorney General is giving
for unsealing the grand jury testimony?
Speaker 4 (05:48):
Well, the Department of Justice filed in motion before Judge
Richard Berman, who was the judge that was handling the
Epstein case at the time that mister Epstein committed suicide,
and the motion essentially said that disclosure of this grandjury
testimony is necessary given the long standing and legitimate public
interests in the Jeffrey Epstein case. It's going to be
(06:08):
interesting to see how the judge handles that request because
there are many cases that are very high profile of
which there is long standing and legitimate public interests, and
typically a judge will.
Speaker 1 (06:18):
Not release that information. Now in the.
Speaker 4 (06:21):
Second circuit, which is the Court of Appeal, where any
decision made by the Trialey judge will ultimately end up,
the law says judges have inherent authority to release grandeury
materials in what's called special or exceptional circumstances. And what
that really means is that it is up to the
discretion of the judge whether or not to release this information.
(06:42):
But it certainly suggests that it is done only in
the most unusual of circumstances. And then even if information
is released, it would have to be heavily redacted. And
by that I mean that the names of victims and
perhaps even the names of some individuals would be blacked
out and not released to the public. So the reality
(07:03):
is that this motion may take some time for the
judge to decide, and then even if the judge decides
to release that information, there may be parts of it
that are blacked out and never released to the public.
So we really don't know how critical this information ultimately
will be even if the judge decides to grant the
government's motion.
Speaker 2 (07:22):
There's also the fact that his co defendant, Glaine Maxwell,
is appealing her conviction to the Supreme Court, and the
Government acknowledged that in their papers, saying, while the Government
recognizes that Maxwell's case is currently pending before the Supreme Court,
it nonetheless moves this court for relief due to the
intense public scrutiny into this matter. So will the judge
(07:45):
have to weigh, you know, the possible impact on her
case with the public interest.
Speaker 4 (07:52):
Yes, they're absolutely right, as you said, Ghlaine Maxwell, who
was the former girlfriend of Jeffrey Epstein, was convicted in
twenty twenty one on second craftking charges. As she's currently
serving a twenty years sentence, But as you say, that
conviction is going up on appeal and the court will
be mindful of her rights and will try to make
sure that nothing that is released here ultimately could be
(08:15):
prejudicial to her. So there's an awful lot for the
court to weigh in the balancing act of trying to
figure out what, if any, information should be released. And
then I think the real interesting question is, even if
the judge does grant this motion and release some of
this grand jury information, just how critical will it be
(08:36):
in terms of answering the questions that seem to be
motivating the Department of Justice to file this motion for
the release of grand jury testimony.
Speaker 2 (08:44):
Some are suggesting a special counsel. Trump initially said I
have nothing to do with that, but then the Press
secretary said that Trump wouldn't recommend a special counsel. Could
a special counsel get to the truth here?
Speaker 4 (08:57):
Well, there could be another type of investigator into exactly
what the Department of Justice did, because there's lots of
evidence that was gathered during that investigation that is not
going to be part of grand jury testimony. For example,
there's videos, there's photographs, other recordings, there's texts, there's emails.
There's an enormous amount of information that was no doubt
(09:18):
gathered by federal prosecutors during the course of this investigation.
None of that information will be released based upon the
government's motion. So there's lots of information that's still going
to be out there, and I think the pressure is
going to continue to mount to release more information. It is,
I should say, a highly unusual circumstance here. It's highly
(09:40):
unusual for the Attorney General of the United States to
be asking a court to unseal grand jury testimony. That's
even more unusual for the President of the United States
to be weighing in on that question. So we're in
a circumstance here where there is not a lot of
precedence to see how the courts may look at this information. Generally,
the worts are reluctant to release this type of information
(10:02):
given the privacy concerns that are at stake here, and
the concept that is simply unfair to release the names
of individuals who may have been caught up an investigation
but who are never ultimately charged with a crime.
Speaker 2 (10:15):
Is filing to get the grand jury transcripts more of
a distraction because the information that people seem to be
looking for is not going to be found in grand
jury transcripts, but rather in the files. The Justice Department has.
Speaker 4 (10:31):
Given the mounting public pressure to release information and connect
you with this investigation. The decision by the Department of
Justice to seek the unsealing of the grand jury testimony
is somewhat unusual because that testimony is going to be
focused on building the case against Jeffrey Epstein, on the
case against Glaine Maxwell, and specifically on the conduct that
(10:54):
form the basis of the criminal charges against them, which
means it's a narrowly foot focused investigation, and the grand
jury testimony is likewise going to be narrowly focused on
the evidence that they had to present to the grand
jury in order to obtain those criminal charges. The remainder
of the files are going to be much more far reaching.
(11:16):
They're likely to involve other individuals and perhaps other activity
that never made its way into either of those indictments.
But then you raise the question of bringing in the
names of victims and other individuals who were never charged
with a crime, and balancing that against the groundswell of
public interest to release this information.
Speaker 2 (11:38):
How long could this process take?
Speaker 4 (11:40):
At the end of the day, the government's motion to
release this grand jury testimony is likely to take some
time I think who can expect Judge Berman to take
his time to go through the grand jury testimony and
to consider what portions, if any, he is going to release.
And then even if he does release information, it's likely
(12:01):
it will not satisfy the public's desire to get more
information about this case because so much of that information
is likely not information that was ever presented to a
grand jury. It remains in the investigatory files of the DODA,
and the real question is will that information ever be released?
Speaker 2 (12:20):
I guess all you can say is we shall see.
Thanks so much, Bob. That's former federal prosecutor Robert Mintz
of Macarter and English. Coming up next on the Bloomberg
Law Show, we'll take a look at the top immigration issues,
including the question of whether the Trump administration will be
able to deny bond to all migrants who entered the
(12:41):
country illegally. That means they could be in detention for
months or even years as they fight their deportations, and
a federal judge says ICE can't use racial profiling in
carrying out arrests. I'm June Grosso and you're listening to Bloomberg.
The City of laws Autels has been a focus of
(13:01):
the Trump administration's immigration crackdown, with complaints that ICE is
roaming around car washes, home depots, and libraries and targeting
Spanish speaking day laborers for arrest. Here's La Mayor Karen
Bass And when.
Speaker 3 (13:18):
The administration came in, they said that they were going
to go after violent gang members, drug dealers, human traffickers.
I don't think that's what's happening at a day labor center.
Speaker 4 (13:29):
And home depot.
Speaker 3 (13:31):
You know, how do you go from a drug den
to a home depot parking lot that terrifies people and
then they run out, chasing them throughout the parking lot.
Speaker 2 (13:40):
Well, a federal judge has temporarily blocked ICE agents from
using racial profiling to carry out indiscriminate immigration arrests. Joining
me is an expert in immigration law, Leon Fresco, a
partner at Hollnda Knight Leam. Before we even get to
the legal question these ICE raids that the La Times
(14:01):
reported that ICE agents have been sort of roaming around
home depots and car washes, stopping brown skins, Spanish speaking
day labors and others to arrest on immigration charges. Is
this the way ICE has normally operated or is this
something new.
Speaker 1 (14:17):
Well, there have been times in the last twenty five
years that ICE has operated in this way. But if
one is looking at the time arc of the last
twenty five years and said group them into two buckets,
times that ICE has not operated this way, and times
that ICE has operated this way over the last twenty
(14:39):
five years. More often than not, ICE has not operated
this way. ICE has tried to go after people with
final orders of removal, or people with criminal convictions, or
people in targeted operations where there's something known about the operations,
such as that it's a business that exploits their workers
(15:00):
or is involved in some sort of trafficking, et cetera. Now,
there have been times, most notably in two thousand and seven,
two thousand and eight, in the last part of the
Bush administration, and then beginning points in the Trump administration
of the first term, where ICE had started to act
in this manner, going around essentially trying to find people
(15:23):
it can actually apprehend and place into removal proceedings. And
this is the new norm. I would say, It's not
something that is very common over the last twenty five years,
but it is something that is within their mandate. They're
permitted to go and try to find people who are
not here with status and place them under arrest and
(15:45):
place them into deportation proceedings and then actually deport them. Now,
the problem is going to be the methods of how
ICE operates. And this litigation is very fascinating in that
this has been a debate between the pro immigration enforcement
people and the pro what I would call, you know,
(16:08):
relaxation on immigration enforcement people, where they've had this debate
about what is it permissible for ICE to do in
these operations? Are their limits to what it can do?
And that's what was being debated in this case. And
I think it's ultimately going to have to take the
Supreme Court to adjudicate these issues.
Speaker 2 (16:30):
So Tom Holman, the Borders Are has said and echoing
what the government attorney said in this case, that agents
in deciding whether to stop a person can consider their location,
their workplace, the particular work they're doing, clothing, et cetera.
But the judge said that she found a sufficient amount
(16:51):
of evidence that agents were using just that race language,
a person's vocation, or the location they're at, such as
a car wash, to form reasonable suspicion, and she ruled
that ICE agents can't rely on those factors. Who do
you think is right here?
Speaker 1 (17:06):
This is the most complicated area of the immigration law
that one can imagine, because in every other area of
the law, we don't allow our law enforcement to conduct
a law enforcement based on quote unquote immutable factors because
we don't like these sort of status crimes. We don't say,
(17:29):
you know, go after only this race when it comes
to this crime, or go after that gender, or go
after people with a certain characteristic. We don't do it. It's illegal.
It's not necessary. You can go after whatever the actual
violation of the law is. So did you file your taxes?
Did you steal from the store, whatever it may be,
(17:52):
So you don't have to do this profiling. And so
it's easy to say, if you're profiling, it's illegal, and
that's the end of it, because the profiling has nothing
to do with the underlying offense. Is the car stole
and did somebody steal, did somebody not file some document,
whatever it may be. The problem in immigration is this
(18:13):
is a status offense. You're either here legally or you're
not here legally. So what are the ndisha of a
person who's not here legally? It is some of these things.
You know, are you speaking in certain languages versus other languages.
Are you engaging in behavior that looks like you're smuggling
(18:33):
someone at that moment, that kind of thing. Now, obviously
these things can be taken too far, and for sure
that's the problem is if you're engaging in this profiling
in a way where it's aggressive and it's all over
the community, and it's everywhere, and anybody who speaks a
non English language to their grandmother who happens to be
here legally, but she never learned English for whatever reason,
(18:56):
but she's here legally, And now everybody's being arrested because
the ICE agent hears somebody speaking to their grandmother in
a different language or something, or ICE arrest a bunch
of tourists here to see some soccer game or something
because they don't speak the language. Just like if I
travel to Europe, I don't speak whatever language I'm in
in my European country. If I'm suddenly being confronted by
(19:18):
an immigration officer, you know, those are all tough issues.
And so the question starts to become how that enforcement
comes into play. What are the constraints, what are not
the constraints and so I think what the group who
is suing would say is ICE, you have to be
operating from a list of people you're looking for and
(19:41):
go look for them, and then that's how you can
enforce immigration law in America. That's basically what the group
who is suing is saying. And what ICE is saying
is that constrains us way too much because that takes time.
And in addition, every time we try to make lists
like this, we're being thwarted in various different ways. You know,
(20:04):
whether we try to make a list of criminals, the
counties and the cities and the states who are quote
unquote sanctuary jurisdiction don't allow us to make a list
of criminals. They don't give us the names of people,
so they make it harder for us to find those people.
So we can't make a list of criminals in these places.
If we try to get a list of people who
are not using public benefits appropriately, we get thwarted by
(20:28):
lawsuits that say you can't do that either. And so
this is the problem. Is ISA is saying, we need
to be able to arrest somebody, and if people are
making our lives difficult in terms of the effort and
the resources and the constraints to make these lists to
go find people. Then what we'd like to do is
to be able to question people essentially when we have
(20:51):
a reasonable suspicion that they're not here legally, and ask
them to produce identification that says they're here legally. This
becomes super complicated, especially sometimes if you're just a US citizen,
let's say, going for a jog. You don't have any
legal duty when you're a US citizen going for a
job to have any identification on you. But what if
(21:12):
that means that you get arrested and you're put in
detention for days or weeks until somebody figures out that
you're in detention and can find the right document for you.
So all of that becomes very complicated and messy, and
the courts, I do not envy what they're gonna have
to try to do to ultimately come to a solution
(21:34):
that's reasonable. I don't think the kind of injunction that
was issued here will be allowed to ultimately remain in
its full form, which is essentially that I mean, it
doesn't exactly say this, but what it is essentially saying
is I has to know who they're going after before
they go after that, meaning they have to say, here's
a piece of paper called John Smith. I'm looking for
(21:55):
John Smith. I'm going to apprehend John Smith, and I'm
going to bring John Smith into detention. I don't think
the ICE is going to be limited to just that,
But the question is what is ICE going to be
limited to, if anything, and if it's not limited to anything,
that will also create its own set of complexities. But
I will say this, just if anybody's been paying attention
(22:18):
to the Supreme Court over the last ten or twenty years,
they don't like cases where they sort of have to
guess something up front and issue an injunction. They like
what's called the as applied challenges, where you can actually
go to them and say a certain behavior and then
say is this behavior unconstitutional or not.
Speaker 2 (22:39):
The Trump administration says it's going to appeal that judge's ruling,
so we'll see what happens there. You mentioned being in detention,
and the Trump administration has declared that immigrants who arrived
in the US illegally are no longer eligible for a
bond hearing while they're fighting deportation proceedings in court. So
(23:03):
that means mandatory indefinite detention for months or even years
while the cases play out.
Speaker 1 (23:12):
Well, a lot of this is going to depend on
the constraints of the space and the funding and everything
that's available to detain people for removal proceedings. That's been
the reason historically why many more people have gotten bond
than have been released and have not been in detention
than theoretically could have been placed in detention. But let's
(23:34):
start with a more fundamental issue, because this is critically important,
which is that immigration detention is not criminal detention. And
that matters because the courts have held that in immigration,
the people going through this system have far fewer rights
than people going through the criminal courts because it's not
(23:56):
a criminal issue. So you don't have a right to
a jury trial, don't have a right to counsel, or
any of these things. But why does that matter. That
matters because since immigration is in the civil context and
not in the criminal context, the government's ability to constitutionally
detain someone, meaning you know, keep them locked up their
(24:18):
freedom is gone, is much more limited. And the courts
have recognized this that in the civil context, there's very
few reasons to have people in civil detention, and so
what the courts have held is that if there's a
statute that Congress has said makes the detention mandatory, which
(24:39):
is what happens in cases where people have criminal convictions,
the only reason that's currently constitutional is if the detention
is brief and targeted enough to get you through the
proceeding quickly enough. And they have said, come to us
with as applied challenges if the detention is too lengthy
in this situation, you know, if you're taking it in
(25:00):
a context where it's not a mandatory, statutory thing, and
we know it's not because for decades administrations have said
this is not mandatory. This is just now something that
the administration is deciding to do. They're saying, we're not
going to have bond hearings anymore. We're just going to
put people in detention. We are taking an optional policy
(25:22):
and making it mandatory that people have to be in
detention while they're in removal proceedings, at least in the
initial hearings. I think courts are going to say that
that's illegal, and you have to give people a chance
to have bond. Just like if you're going through the
criminal process, you can have a bond hearing. So you know,
there's plenty of people in criminal proceeding for murder who
(25:45):
are out on bond while the murder proceeding is happening.
Because what you're looking for is is the person likely
to commit another crime? Are they likely to abscond, etc.
Is the bond amount sufficient to make sure they'll come?
All of those indisha are required also in the immigration context,
and even more because it's a civil detention, which really
(26:08):
is not something that the law is very fond of
as opposed to a criminal detention, and so at least
in the lower courts, I think this is going to
be very tough for the administration to put this policy
in place once the lawsuits get filed and rolling. But
then again it's going to go up to the Supreme Court,
(26:28):
and the Supreme Court is going to have to decide
does the administration have the ability to just change from
the Again, the previous twenty five years, the norm was
people who didn't commit crimes could get bond hearings where
a judge would decide, hey, can you be constrained by
a high bond and other things such that you're not dangerous,
(26:52):
you're not a risk of absconding or do you have
to be placed in detention as opposed to just taking
away this ability to who give people bond hearings whatsoever,
which is what this policy does. We will see what
the Supreme Court does. But in this context, the Supreme
Court has only allowed it because it was congressionally mandated,
(27:13):
it involved criminals, and it was for a short period
of time. If this is going to be many, many
more people and non criminals, and it will be much
lengthier because you're putting more and more people into a
system that still, at the least at the moment, has
the same amount of immigration judges, which means that that
just makes every case longer because you have more people
(27:35):
going to the same number of immigration judges. I don't
know if the Supreme Court is going to allow it,
but again we'll have to see if they put any
constraints on it in advance or do they make it
again and as applied challenge where people have to come
in let's say after six months or after a year,
or after eighteen months and say, hey, I've been detained
(27:57):
too long when my removal proceedings are pending, let me out.
That's why we're gonna have to wait and see coming.
Speaker 2 (28:02):
Up a lawsuit over ICE agents arresting people outside immigration court.
This is Bloomberg. I've been talking to immigration attorney Leon
Fresco of Honda Knight about the Trump administration declaring that
immigrants who arrived in the US illegally are no longer
eligible for a bond hearing as they fight deportation proceedings
(28:24):
in court. Leon, the Department of Homeland Security said that
they revisited their legal position on detention by reinterpreting an
immigration law from the nineteen nineties. So they're saying that
under section two thirty five, which says shall be detained,
they're saying that the interpretation before was inaccurate and it
(28:46):
means must be detained right.
Speaker 1 (28:49):
And shall be detained means for the purposes of putting
that into removal proceeding. Meaning what the statue says is
ICE or Department of Homeland Insecurity, if you find someone
who's undocumented, detain them, place them in removal proceedings. But
it doesn't then say what you do with them after
(29:10):
you've detained them and placed them in removal forceeedings. Can
they get out on bond or can they not get
out on bond, and for the last twenty five years,
that answer has been they can get out on bond.
And the reason it has been that they can get
out on bond is for the reasons I'm saying, which
is that because the Congress didn't specifically say, like it
(29:32):
did in the criminal context, you can't release them. So
here there is no such statute that says you can't
release them. So you have to say that if Congress
has a statute in one context that says you can't
release them, that means that in this other context you
probably can release them. This is going to be the
question for the court is can the government constitutionally, in
(29:55):
the civil context decide to not let people have the
right to a bond hearing while their immigration proceedings are pending.
And that's why the policy has been what it's been
the last twenty five years. Is nobody thought that the
government could get away with this. But we're going to see.
We're going to see what the courts say. I don't
(30:17):
think the lower courts will be friendly towards this position,
especially in the jurisdictions where it's likely to be challenged,
but it's possible the Supreme Court will say as they've
been giving difference in some context to the Trump administration
and immigration recently, that they are permitted to hold everybody
in detention that's in the removal process, and then it
(30:37):
will just be up to the constraints and the number
of facilities that the Trump administration has. So that's what
we're going to have to wait and see. But whether
this detention is constitutional or not will depend on a
number of factors, which also include how lengthy is the
detention going to be, and are these people really demonstrated
to be flight risks, et cetera. And all of this
(31:00):
is going to be litigated in the court.
Speaker 2 (31:03):
Speaking of litigation, so, as we've discussed before, ICE agents,
and this has gotten a lot of publicity, ICE agents
have been arresting migrants who appear at immigration courts for
previously scheduled hearings. The government will dismiss the deportation proceedings,
and then when the migrants leave, there are ICE officers
(31:24):
waiting in the hallway to take them into custody. So
a group of immigrants and legal advocates filed a class
action lawsuit last week to stop this. What do you
think about their chances they're saying they're stripping them of
rights afforded to them under immigration law and the Fifth Amendment.
Speaker 1 (31:42):
This is another of these very complicated cases, both policy
wise and legally policy wise, because again, this is a
place where Ice would say, fine, you don't want us
racial profiling going to the home depot grabbing people in
the middle of the three. Here's one of the easiest
places for us to apprehend people and place them into detention,
(32:03):
which is in the immigration course. They've already cleared the security,
they don't have any weapons, et cetera. And you don't
even want us to do this. That's what they would say.
From their perspective. The people representing the foreign nationals would say,
wait a second. These are the people who are following
everything correctly. They're actually showing up to their court hearing.
They're not absconding. They have a process. You just don't
(32:25):
like how long the process is going to take with
these individuals, so you want to place them into an
expedited process. And by the way, the end result of
placing them in this expedited process is that maybe seventy
or eighty percent of them, after three or four weeks
of detention, will go right back to the exact scenario
(32:47):
they were in previously, and only maybe a fifth or
a quarter of them will be able to be detained
and deported on an expedited basis because they won't be
able to meet the initial threshold of even having a
credible asylum claims. But yeah, some number will. And then
the question is is the juice worth the squeeze there,
(33:08):
And that just will depend on where you're looking at
it from. From the perspective of Ice, if that's an
extra fifty thousand people they can deport in a year,
they might say, that's very worth it to us, especially
since we didn't have to go into the community and
have guns blazing and have armor and all of this.
But from the perspective of the immigrant Trice community, they
(33:30):
would say, yeah, But now no one is showing up
the court. And the whole point is you wanted people
to show up that the court. They had a case,
they were making their case. Now they have to make
a different case. You're violating their due process because you're
making them change the case that they had for no
good reason. This is I think another case where I
(33:51):
think there's likely to be success in the lower court.
But I think the Supreme Court likely at the end
of this probably stays any injunction, and behind the scenes,
what I think they would be debating and contemplating would
be some sort of context where they say ICE has
to be able to arrest somebody for something, and for us,
(34:11):
this is better than the whole depot scenario. And so
this is where I think these practical realities start colliding
with the laws. And certainly you wouldn't want to design
a framework where people were terrified to go to immigration
court because something bad was going to happen to them,
even mid process. So the point is, yes, they may
(34:32):
know that at the final hearing they will either win
or be deported, fine, so that there's always that, But
mid process, when you don't even think you have any
fear of being deported, the fact that you would go
to court for a check in hearing and be placed
in detention that same day, I think that's alarming to people.
And if the result is that people stop going to
(34:54):
court because of that, then there can be perhaps a
claim made that says encouraging people to basically end up
having in absentia removal orders, because that's what happens when
you don't go to court is you automatically forfeit your
case and you can be removed because you were in absentia,
you didn't show off the court, and so that's gonna
(35:16):
has to be the argument that's made, and we'll have
to see where the court come out on this.
Speaker 2 (35:22):
Lyne, it seems pretty clear at this point that they
had said they're going to arrest criminals first. They're arresting
the worst of the worst. They're not arresting the worst
of the worst, or even those with criminal records. The
latest ICE statistics show that June twenty ninth, there were
fifty seven and sixty one people detained by ICE. Seventy
(35:42):
one point seven percent had no criminal convictions. Why are
they not going after the criminals first as they said
they would.
Speaker 1 (35:52):
It's very hard, it's very time consuming, it's very resource intensive.
They don't if they go to somebody's houns with a
criminal case conviction, they don't show up with just one
ICE agent as you've been seeing. They show up with
multiple agents, they show up with a warrant. All of
that takes time and effort and energy to do. And
when they have one of these huge operations that they publicize,
(36:16):
it maybe captures two hundred and fifty people, and it
took many, many agents over many many days, and so
it doesn't yield the kind of numbers they're looking for.
They're looking to try to arrest thirty five hundred people
a day. And if you are trying to arrest thirty
five hundred people a day and get, you know, into
(36:39):
a scenario where you're over a million people you're deporting
in a year, then the only way to accomplish that
is to try to arrest people without criminal convictions that
you can find in other locations such as ice check
in court, or people who you know were here legally
but their status expired because they came in under one
(37:01):
of the statuses that the Biden administration created, which were
again you know, these are debates about whether those statuses
were proper to create or not. But the point is
these people are well known, they're out in the open,
they were here legally, they're the easiest to apprehend. And
so you do have some segment of the restrictionists individuals
(37:23):
who say that's the people you should be going after.
You need to get deported. Every single person who came
in under the Biden administration, whether they came in illegally
through the border or through one of these programs, and
I think ICE has taken that rhetoric seriously, and that
appears to be the large segment of who they're looking
(37:43):
for are the people who enter, be it illegally or
legally during the Biden administration, in addition to criminals, but again,
as you pointed out, not the majority of criminals because
of how resource intensive that process is.
Speaker 2 (37:58):
At this rate, they're not going to reach there are
one million deportations in a year.
Speaker 1 (38:04):
Well at this rate, that's true. But they've just over
the last month been given forty billion dollars, which is
going to take a while to ramp up because they're
first trying to bring back agents that had retired, So
that's the first thing they're trying to do that they're
gonna have to hire new agents. When they did this
with the Border Patrol under the Bush administration, they had
(38:25):
a lot of problems hiring people who didn't have criminal
convictions and weren't otherwise employed in the marketplace. It's not
this is not the easiest job to recruit people for it.
Because people understand what they sign up to become ICE agents.
It has a certain wear and tear to it. So
it's not really the easiest job that the recruit for.
(38:49):
And so from that standpoint, all of this is going
to have to be brought up. But as these agents
and resources start getting brought up, you will see the
numbers get higher. But then the question is going to
be fine, as the numbers get higher, now what And
that's where the society starts pushing back. And you're starting
to see this on that front too. So there's the
(39:11):
resource constraints on why the numbers are low. Those are
going to be taken away soon and the resources will
permit higher numbers of removals. And then the question is
when that's actually being implemented, what's that going to look
like and feel like in your average big city And
is there going to be the level of pushback where
the president himself is getting contacted by numbers of people saying, hey,
(39:37):
I know you're deporting XYZ, but don't support my person
and he keeps hearing that over and over again, and
everybody has a person that they care about, and now
suddenly you know, it becomes a process where the exception
swallow up the rule, and that's where we're going to
have to wait and see what happens there.
Speaker 2 (39:56):
Yeah, and more Americans are souring on Trump's immigration crackdown.
According to a new CBS news you gov survey, only
forty four percent of Americans approve of Trump's handling of immigration.
Fifty six percent disapprove. That approval rate is down ten
(40:17):
points since March.
Speaker 1 (40:19):
Obviously, everybody debates who's pulling what and who's getting pulled
and everything, but just in general, it's fair to say
that the ramifications of large scale immigration enforcement to the
level of being contemplated by the administration because people haven't
actually lived through it and seen it there, are going
(40:40):
to be just because it is inevitable things about that
process that makes people uncomfortable, and we're going to have
to see where the societal alarm bells are.
Speaker 2 (40:51):
Thanks so much, Leon. That's Leon Fresco of Honda Night
and that's it for this edition of The Bloomberg Law Show.
Remember you can always get the latest legal news is
honor 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
(41:12):
weeknight at ten pm Wall Street Time, I'm June Grosso
and you're listening to Bloomberg
This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2 (00:08):
A growing number of lawmakers on both sides of the
isle are calling for the Justice Department to release all
the files related to Jeffrey Epstein. This despite President Trump's
efforts to downplay them, calling it a hoax and a scam.
Speaker 1 (00:25):
It's all been a big hoax.
Speaker 3 (00:26):
It's perpetrated by the Democrats, and some stupid Republicans and
foolish Republicans fall.
Speaker 2 (00:31):
Into the net, and so they try and do the
Democrats work. Last Thursday, Trump authorized the Justice Department to
seek the release of grand jury testimony from the Epstein
prosecution after The Wall Street Journal published a story alleging
that he once sent a suggestive birthday letter to Epstein.
(00:52):
But some Republicans, like Tennessee Congressman Tim Burchett, are still
saying it's not enough.
Speaker 1 (00:58):
I think it's a start. I don't think we're ever
going to get to the bottom of anything, all of it.
This town doesn't give up its Sacred's very easy.
Speaker 2 (01:05):
Joining me is former federal prosecutor Robert Mintz, a partner
McCarter in English, Bob So. The Trump administration asked a
federal judge to unseal the transcripts in the Epstein case,
this is an unusual motion. Why go through the bother
of making it? What information would you really be able
to get from those transcripts?
Speaker 4 (01:28):
Well, there's no question that the release of grand jury
transcripts raises real privacy concerns about not only the victims,
but even individuals whose names may have come up in
connection with an investigation but were never charged, that would
not have any opportunities to defend themselves if those names
were released. The other thing about the grand jury testimony
(01:51):
that's interesting is that typically the grand jury is used
for the limited purpose of obtaining an indictment. Now, there
are certain ccumstances where prosecutors will use a grand jury
as more of an investigative tool, and in that instance
you might have more witness testimony in front of a
grand jury. But for the most part, when you're the prosecutor,
(02:13):
the last thing you want to do is put a
key witness in front of the grand jury, because that
testimony would then have to be turned over to the
defense council at some point.
Speaker 1 (02:21):
So most of the time.
Speaker 4 (02:23):
All of the critical witness interviews take place outside of
the grand jury, assuming those witnesses are cooperating and they're
done in front of an FBI agent or another investigative agent,
and a report is prepared. But that's not grand jury material,
and that's not the kind of information that will be
released if a judge indeed decides to release these grand
jury transcripts.
Speaker 2 (02:43):
Even if they release transcripts of let's say an FBI
agent's testimony to the grand jury, you wouldn't see, for example,
the notes of witness interviews or photos anything that's attached
to that.
Speaker 4 (02:58):
No, in fact, it's quite the opposite. When the FBI
interview is a witness outside of the grand jury, they
create a report commonly down as an FBI three to
zero two, and that is a detailed report of what
a witness says during the course of an interview. But
when a prosecutor presents is or her case to the
grand jury, if they put an FBI agent on the stand,
(03:20):
that testimony will be very focused and will be very summary,
in the sense that all the prosecutor is looking for
is enough evidence to show a grand jury that there's
probable cause that the crime has been committed, and that
there's enough evidence to move forward with the charges. So
the reality is, as a prosecutor, you want to present
(03:40):
as little information as you need in front of the
grand jury in order to obtain that indictment.
Speaker 1 (03:46):
The other thing.
Speaker 4 (03:46):
About grand jury testimony is that hearstay is admissible, so
that agents routinely will go in to the grand jury
in order to paint an indictment and provide a summary
of witness interviews. They don't have to provide all the
d tails, and the witnesses themselves do not have to
appear to present their testimony in order for the grand
jury or rely on that testimony in deciding whether or
(04:08):
not to return an indictment.
Speaker 2 (04:10):
And Bob talk a little bit about the importance of
protecting grand jury secrecy.
Speaker 4 (04:16):
So grand juries are covered by something called the Federal
Rule of Criminal Procedure sixty. It's a rule that every
federal prosecutor is extremely familiar with, and it prohibits an
attorney from the government or anybody really who is aware
of matters occurring before a grand jury from disclosing any
of that information. In fact, when you represent a witness
(04:37):
who goes to testify before the grand jury, as the lawyer,
even you are not permitted to go inside the grand
jury only the witnesses, and you can debrief your client
after they come out, because the witnesses themselves can talk
about what their testimony was, but nobody else can talk
about what goes on in the grand jury, not any
of the grand jurors and not any of the federal prosecutors.
(05:00):
And there's good reason for that. The grand jury is
an investigative tool. Information is presented to a grand jury
that may not ever result in an indictment. Charges may
never be brought. And the concept behind Rule six e
is that all of those proceedings are secret unless and
until an indictment is returned by that grand jury. And
(05:20):
it's done in order to preserve the privacy of victims
and even the privacy of individuals who prosecutors may suspect
have committed a crime, but ultimately if they're never charged.
The idea that would be unfair to release damaging information
about an individual who then never gets their day in
court if they're never charged with a crime.
Speaker 2 (05:41):
What are the reasons that the Attorney General is giving
for unsealing the grand jury testimony?
Speaker 4 (05:48):
Well, the Department of Justice filed in motion before Judge
Richard Berman, who was the judge that was handling the
Epstein case at the time that mister Epstein committed suicide,
and the motion essentially said that disclosure of this grandjury
testimony is necessary given the long standing and legitimate public
interests in the Jeffrey Epstein case. It's going to be
(06:08):
interesting to see how the judge handles that request because
there are many cases that are very high profile of
which there is long standing and legitimate public interests, and
typically a judge will.
Speaker 1 (06:18):
Not release that information. Now in the.
Speaker 4 (06:21):
Second circuit, which is the Court of Appeal, where any
decision made by the Trialey judge will ultimately end up,
the law says judges have inherent authority to release grandeury
materials in what's called special or exceptional circumstances. And what
that really means is that it is up to the
discretion of the judge whether or not to release this information.
(06:42):
But it certainly suggests that it is done only in
the most unusual of circumstances. And then even if information
is released, it would have to be heavily redacted. And
by that I mean that the names of victims and
perhaps even the names of some individuals would be blacked
out and not released to the public. So the reality
(07:03):
is that this motion may take some time for the
judge to decide, and then even if the judge decides
to release that information, there may be parts of it
that are blacked out and never released to the public.
So we really don't know how critical this information ultimately
will be even if the judge decides to grant the
government's motion.
Speaker 2 (07:22):
There's also the fact that his co defendant, Glaine Maxwell,
is appealing her conviction to the Supreme Court, and the
Government acknowledged that in their papers, saying, while the Government
recognizes that Maxwell's case is currently pending before the Supreme Court,
it nonetheless moves this court for relief due to the
intense public scrutiny into this matter. So will the judge
(07:45):
have to weigh, you know, the possible impact on her
case with the public interest.
Speaker 4 (07:52):
Yes, they're absolutely right, as you said, Ghlaine Maxwell, who
was the former girlfriend of Jeffrey Epstein, was convicted in
twenty twenty one on second craftking charges. As she's currently
serving a twenty years sentence, But as you say, that
conviction is going up on appeal and the court will
be mindful of her rights and will try to make
sure that nothing that is released here ultimately could be
(08:15):
prejudicial to her. So there's an awful lot for the
court to weigh in the balancing act of trying to
figure out what, if any, information should be released. And
then I think the real interesting question is, even if
the judge does grant this motion and release some of
this grand jury information, just how critical will it be
(08:36):
in terms of answering the questions that seem to be
motivating the Department of Justice to file this motion for
the release of grand jury testimony.
Speaker 2 (08:44):
Some are suggesting a special counsel. Trump initially said I
have nothing to do with that, but then the Press
secretary said that Trump wouldn't recommend a special counsel. Could
a special counsel get to the truth here?
Speaker 4 (08:57):
Well, there could be another type of investigator into exactly
what the Department of Justice did, because there's lots of
evidence that was gathered during that investigation that is not
going to be part of grand jury testimony. For example,
there's videos, there's photographs, other recordings, there's texts, there's emails.
There's an enormous amount of information that was no doubt
(09:18):
gathered by federal prosecutors during the course of this investigation.
None of that information will be released based upon the
government's motion. So there's lots of information that's still going
to be out there, and I think the pressure is
going to continue to mount to release more information. It is,
I should say, a highly unusual circumstance here. It's highly
(09:40):
unusual for the Attorney General of the United States to
be asking a court to unseal grand jury testimony. That's
even more unusual for the President of the United States
to be weighing in on that question. So we're in
a circumstance here where there is not a lot of
precedence to see how the courts may look at this information. Generally,
the worts are reluctant to release this type of information
(10:02):
given the privacy concerns that are at stake here, and
the concept that is simply unfair to release the names
of individuals who may have been caught up an investigation
but who are never ultimately charged with a crime.
Speaker 2 (10:15):
Is filing to get the grand jury transcripts more of
a distraction because the information that people seem to be
looking for is not going to be found in grand
jury transcripts, but rather in the files. The Justice Department has.
Speaker 4 (10:31):
Given the mounting public pressure to release information and connect
you with this investigation. The decision by the Department of
Justice to seek the unsealing of the grand jury testimony
is somewhat unusual because that testimony is going to be
focused on building the case against Jeffrey Epstein, on the
case against Glaine Maxwell, and specifically on the conduct that
(10:54):
form the basis of the criminal charges against them, which
means it's a narrowly foot focused investigation, and the grand
jury testimony is likewise going to be narrowly focused on
the evidence that they had to present to the grand
jury in order to obtain those criminal charges. The remainder
of the files are going to be much more far reaching.
(11:16):
They're likely to involve other individuals and perhaps other activity
that never made its way into either of those indictments.
But then you raise the question of bringing in the
names of victims and other individuals who were never charged
with a crime, and balancing that against the groundswell of
public interest to release this information.
Speaker 2 (11:38):
How long could this process take?
Speaker 4 (11:40):
At the end of the day, the government's motion to
release this grand jury testimony is likely to take some
time I think who can expect Judge Berman to take
his time to go through the grand jury testimony and
to consider what portions, if any, he is going to release.
And then even if he does release information, it's likely
(12:01):
it will not satisfy the public's desire to get more
information about this case because so much of that information
is likely not information that was ever presented to a
grand jury. It remains in the investigatory files of the DODA,
and the real question is will that information ever be released?
Speaker 2 (12:20):
I guess all you can say is we shall see.
Thanks so much, Bob. That's former federal prosecutor Robert Mintz
of Macarter and English. Coming up next on the Bloomberg
Law Show, we'll take a look at the top immigration issues,
including the question of whether the Trump administration will be
able to deny bond to all migrants who entered the
(12:41):
country illegally. That means they could be in detention for
months or even years as they fight their deportations, and
a federal judge says ICE can't use racial profiling in
carrying out arrests. I'm June Grosso and you're listening to Bloomberg.
The City of laws Autels has been a focus of
(13:01):
the Trump administration's immigration crackdown, with complaints that ICE is
roaming around car washes, home depots, and libraries and targeting
Spanish speaking day laborers for arrest. Here's La Mayor Karen
Bass And when.
Speaker 3 (13:18):
The administration came in, they said that they were going
to go after violent gang members, drug dealers, human traffickers.
I don't think that's what's happening at a day labor center.
Speaker 4 (13:29):
And home depot.
Speaker 3 (13:31):
You know, how do you go from a drug den
to a home depot parking lot that terrifies people and
then they run out, chasing them throughout the parking lot.
Speaker 2 (13:40):
Well, a federal judge has temporarily blocked ICE agents from
using racial profiling to carry out indiscriminate immigration arrests. Joining
me is an expert in immigration law, Leon Fresco, a
partner at Hollnda Knight Leam. Before we even get to
the legal question these ICE raids that the La Times
(14:01):
reported that ICE agents have been sort of roaming around
home depots and car washes, stopping brown skins, Spanish speaking
day labors and others to arrest on immigration charges. Is
this the way ICE has normally operated or is this
something new.
Speaker 1 (14:17):
Well, there have been times in the last twenty five
years that ICE has operated in this way. But if
one is looking at the time arc of the last
twenty five years and said group them into two buckets,
times that ICE has not operated this way, and times
that ICE has operated this way over the last twenty
(14:39):
five years. More often than not, ICE has not operated
this way. ICE has tried to go after people with
final orders of removal, or people with criminal convictions, or
people in targeted operations where there's something known about the operations,
such as that it's a business that exploits their workers
(15:00):
or is involved in some sort of trafficking, et cetera. Now,
there have been times, most notably in two thousand and seven,
two thousand and eight, in the last part of the
Bush administration, and then beginning points in the Trump administration
of the first term, where ICE had started to act
in this manner, going around essentially trying to find people
(15:23):
it can actually apprehend and place into removal proceedings. And
this is the new norm. I would say, It's not
something that is very common over the last twenty five years,
but it is something that is within their mandate. They're
permitted to go and try to find people who are
not here with status and place them under arrest and
(15:45):
place them into deportation proceedings and then actually deport them. Now,
the problem is going to be the methods of how
ICE operates. And this litigation is very fascinating in that
this has been a debate between the pro immigration enforcement
people and the pro what I would call, you know,
(16:08):
relaxation on immigration enforcement people, where they've had this debate
about what is it permissible for ICE to do in
these operations? Are their limits to what it can do?
And that's what was being debated in this case. And
I think it's ultimately going to have to take the
Supreme Court to adjudicate these issues.
Speaker 2 (16:30):
So Tom Holman, the Borders Are has said and echoing
what the government attorney said in this case, that agents
in deciding whether to stop a person can consider their location,
their workplace, the particular work they're doing, clothing, et cetera.
But the judge said that she found a sufficient amount
(16:51):
of evidence that agents were using just that race language,
a person's vocation, or the location they're at, such as
a car wash, to form reasonable suspicion, and she ruled
that ICE agents can't rely on those factors. Who do
you think is right here?
Speaker 1 (17:06):
This is the most complicated area of the immigration law
that one can imagine, because in every other area of
the law, we don't allow our law enforcement to conduct
a law enforcement based on quote unquote immutable factors because
we don't like these sort of status crimes. We don't say,
(17:29):
you know, go after only this race when it comes
to this crime, or go after that gender, or go
after people with a certain characteristic. We don't do it. It's illegal.
It's not necessary. You can go after whatever the actual
violation of the law is. So did you file your taxes?
Did you steal from the store, whatever it may be,
(17:52):
So you don't have to do this profiling. And so
it's easy to say, if you're profiling, it's illegal, and
that's the end of it, because the profiling has nothing
to do with the underlying offense. Is the car stole
and did somebody steal, did somebody not file some document,
whatever it may be. The problem in immigration is this
(18:13):
is a status offense. You're either here legally or you're
not here legally. So what are the ndisha of a
person who's not here legally? It is some of these things.
You know, are you speaking in certain languages versus other languages.
Are you engaging in behavior that looks like you're smuggling
(18:33):
someone at that moment, that kind of thing. Now, obviously
these things can be taken too far, and for sure
that's the problem is if you're engaging in this profiling
in a way where it's aggressive and it's all over
the community, and it's everywhere, and anybody who speaks a
non English language to their grandmother who happens to be
here legally, but she never learned English for whatever reason,
(18:56):
but she's here legally, And now everybody's being arrested because
the ICE agent hears somebody speaking to their grandmother in
a different language or something, or ICE arrest a bunch
of tourists here to see some soccer game or something
because they don't speak the language. Just like if I
travel to Europe, I don't speak whatever language I'm in
in my European country. If I'm suddenly being confronted by
(19:18):
an immigration officer, you know, those are all tough issues.
And so the question starts to become how that enforcement
comes into play. What are the constraints, what are not
the constraints and so I think what the group who
is suing would say is ICE, you have to be
operating from a list of people you're looking for and
(19:41):
go look for them, and then that's how you can
enforce immigration law in America. That's basically what the group
who is suing is saying. And what ICE is saying
is that constrains us way too much because that takes time.
And in addition, every time we try to make lists
like this, we're being thwarted in various different ways. You know,
(20:04):
whether we try to make a list of criminals, the
counties and the cities and the states who are quote
unquote sanctuary jurisdiction don't allow us to make a list
of criminals. They don't give us the names of people,
so they make it harder for us to find those people.
So we can't make a list of criminals in these places.
If we try to get a list of people who
are not using public benefits appropriately, we get thwarted by
(20:28):
lawsuits that say you can't do that either. And so
this is the problem. Is ISA is saying, we need
to be able to arrest somebody, and if people are
making our lives difficult in terms of the effort and
the resources and the constraints to make these lists to
go find people. Then what we'd like to do is
to be able to question people essentially when we have
(20:51):
a reasonable suspicion that they're not here legally, and ask
them to produce identification that says they're here legally. This
becomes super complicated, especially sometimes if you're just a US citizen,
let's say, going for a jog. You don't have any
legal duty when you're a US citizen going for a
job to have any identification on you. But what if
(21:12):
that means that you get arrested and you're put in
detention for days or weeks until somebody figures out that
you're in detention and can find the right document for you.
So all of that becomes very complicated and messy, and
the courts, I do not envy what they're gonna have
to try to do to ultimately come to a solution
(21:34):
that's reasonable. I don't think the kind of injunction that
was issued here will be allowed to ultimately remain in
its full form, which is essentially that I mean, it
doesn't exactly say this, but what it is essentially saying
is I has to know who they're going after before
they go after that, meaning they have to say, here's
a piece of paper called John Smith. I'm looking for
(21:55):
John Smith. I'm going to apprehend John Smith, and I'm
going to bring John Smith into detention. I don't think
the ICE is going to be limited to just that,
But the question is what is ICE going to be
limited to, if anything, and if it's not limited to anything,
that will also create its own set of complexities. But
I will say this, just if anybody's been paying attention
(22:18):
to the Supreme Court over the last ten or twenty years,
they don't like cases where they sort of have to
guess something up front and issue an injunction. They like
what's called the as applied challenges, where you can actually
go to them and say a certain behavior and then
say is this behavior unconstitutional or not.
Speaker 2 (22:39):
The Trump administration says it's going to appeal that judge's ruling,
so we'll see what happens there. You mentioned being in detention,
and the Trump administration has declared that immigrants who arrived
in the US illegally are no longer eligible for a
bond hearing while they're fighting deportation proceedings in court. So
(23:03):
that means mandatory indefinite detention for months or even years
while the cases play out.
Speaker 1 (23:12):
Well, a lot of this is going to depend on
the constraints of the space and the funding and everything
that's available to detain people for removal proceedings. That's been
the reason historically why many more people have gotten bond
than have been released and have not been in detention
than theoretically could have been placed in detention. But let's
(23:34):
start with a more fundamental issue, because this is critically important,
which is that immigration detention is not criminal detention. And
that matters because the courts have held that in immigration,
the people going through this system have far fewer rights
than people going through the criminal courts because it's not
(23:56):
a criminal issue. So you don't have a right to
a jury trial, don't have a right to counsel, or
any of these things. But why does that matter. That
matters because since immigration is in the civil context and
not in the criminal context, the government's ability to constitutionally
detain someone, meaning you know, keep them locked up their
(24:18):
freedom is gone, is much more limited. And the courts
have recognized this that in the civil context, there's very
few reasons to have people in civil detention, and so
what the courts have held is that if there's a
statute that Congress has said makes the detention mandatory, which
(24:39):
is what happens in cases where people have criminal convictions,
the only reason that's currently constitutional is if the detention
is brief and targeted enough to get you through the
proceeding quickly enough. And they have said, come to us
with as applied challenges if the detention is too lengthy
in this situation, you know, if you're taking it in
(25:00):
a context where it's not a mandatory, statutory thing, and
we know it's not because for decades administrations have said
this is not mandatory. This is just now something that
the administration is deciding to do. They're saying, we're not
going to have bond hearings anymore. We're just going to
put people in detention. We are taking an optional policy
(25:22):
and making it mandatory that people have to be in
detention while they're in removal proceedings, at least in the
initial hearings. I think courts are going to say that
that's illegal, and you have to give people a chance
to have bond. Just like if you're going through the
criminal process, you can have a bond hearing. So you know,
there's plenty of people in criminal proceeding for murder who
(25:45):
are out on bond while the murder proceeding is happening.
Because what you're looking for is is the person likely
to commit another crime? Are they likely to abscond, etc.
Is the bond amount sufficient to make sure they'll come?
All of those indisha are required also in the immigration context,
and even more because it's a civil detention, which really
(26:08):
is not something that the law is very fond of
as opposed to a criminal detention, and so at least
in the lower courts, I think this is going to
be very tough for the administration to put this policy
in place once the lawsuits get filed and rolling. But
then again it's going to go up to the Supreme Court,
(26:28):
and the Supreme Court is going to have to decide
does the administration have the ability to just change from
the Again, the previous twenty five years, the norm was
people who didn't commit crimes could get bond hearings where
a judge would decide, hey, can you be constrained by
a high bond and other things such that you're not dangerous,
(26:52):
you're not a risk of absconding or do you have
to be placed in detention as opposed to just taking
away this ability to who give people bond hearings whatsoever,
which is what this policy does. We will see what
the Supreme Court does. But in this context, the Supreme
Court has only allowed it because it was congressionally mandated,
(27:13):
it involved criminals, and it was for a short period
of time. If this is going to be many, many
more people and non criminals, and it will be much
lengthier because you're putting more and more people into a
system that still, at the least at the moment, has
the same amount of immigration judges, which means that that
just makes every case longer because you have more people
(27:35):
going to the same number of immigration judges. I don't
know if the Supreme Court is going to allow it,
but again we'll have to see if they put any
constraints on it in advance or do they make it
again and as applied challenge where people have to come
in let's say after six months or after a year,
or after eighteen months and say, hey, I've been detained
(27:57):
too long when my removal proceedings are pending, let me out.
That's why we're gonna have to wait and see coming.
Speaker 2 (28:02):
Up a lawsuit over ICE agents arresting people outside immigration court.
This is Bloomberg. I've been talking to immigration attorney Leon
Fresco of Honda Knight about the Trump administration declaring that
immigrants who arrived in the US illegally are no longer
eligible for a bond hearing as they fight deportation proceedings
(28:24):
in court. Leon, the Department of Homeland Security said that
they revisited their legal position on detention by reinterpreting an
immigration law from the nineteen nineties. So they're saying that
under section two thirty five, which says shall be detained,
they're saying that the interpretation before was inaccurate and it
(28:46):
means must be detained right.
Speaker 1 (28:49):
And shall be detained means for the purposes of putting
that into removal proceeding. Meaning what the statue says is
ICE or Department of Homeland Insecurity, if you find someone
who's undocumented, detain them, place them in removal proceedings. But
it doesn't then say what you do with them after
(29:10):
you've detained them and placed them in removal forceeedings. Can
they get out on bond or can they not get
out on bond, and for the last twenty five years,
that answer has been they can get out on bond.
And the reason it has been that they can get
out on bond is for the reasons I'm saying, which
is that because the Congress didn't specifically say, like it
(29:32):
did in the criminal context, you can't release them. So
here there is no such statute that says you can't
release them. So you have to say that if Congress
has a statute in one context that says you can't
release them, that means that in this other context you
probably can release them. This is going to be the
question for the court is can the government constitutionally, in
(29:55):
the civil context decide to not let people have the
right to a bond hearing while their immigration proceedings are pending.
And that's why the policy has been what it's been
the last twenty five years. Is nobody thought that the
government could get away with this. But we're going to see.
We're going to see what the courts say. I don't
(30:17):
think the lower courts will be friendly towards this position,
especially in the jurisdictions where it's likely to be challenged,
but it's possible the Supreme Court will say as they've
been giving difference in some context to the Trump administration
and immigration recently, that they are permitted to hold everybody
in detention that's in the removal process, and then it
(30:37):
will just be up to the constraints and the number
of facilities that the Trump administration has. So that's what
we're going to have to wait and see. But whether
this detention is constitutional or not will depend on a
number of factors, which also include how lengthy is the
detention going to be, and are these people really demonstrated
to be flight risks, et cetera. And all of this
(31:00):
is going to be litigated in the court.
Speaker 2 (31:03):
Speaking of litigation, so, as we've discussed before, ICE agents,
and this has gotten a lot of publicity, ICE agents
have been arresting migrants who appear at immigration courts for
previously scheduled hearings. The government will dismiss the deportation proceedings,
and then when the migrants leave, there are ICE officers
(31:24):
waiting in the hallway to take them into custody. So
a group of immigrants and legal advocates filed a class
action lawsuit last week to stop this. What do you
think about their chances they're saying they're stripping them of
rights afforded to them under immigration law and the Fifth Amendment.
Speaker 1 (31:42):
This is another of these very complicated cases, both policy
wise and legally policy wise, because again, this is a
place where Ice would say, fine, you don't want us
racial profiling going to the home depot grabbing people in
the middle of the three. Here's one of the easiest
places for us to apprehend people and place them into detention,
(32:03):
which is in the immigration course. They've already cleared the security,
they don't have any weapons, et cetera. And you don't
even want us to do this. That's what they would say.
From their perspective. The people representing the foreign nationals would say,
wait a second. These are the people who are following
everything correctly. They're actually showing up to their court hearing.
They're not absconding. They have a process. You just don't
(32:25):
like how long the process is going to take with
these individuals, so you want to place them into an
expedited process. And by the way, the end result of
placing them in this expedited process is that maybe seventy
or eighty percent of them, after three or four weeks
of detention, will go right back to the exact scenario
(32:47):
they were in previously, and only maybe a fifth or
a quarter of them will be able to be detained
and deported on an expedited basis because they won't be
able to meet the initial threshold of even having a
credible asylum claims. But yeah, some number will. And then
the question is is the juice worth the squeeze there,
(33:08):
And that just will depend on where you're looking at
it from. From the perspective of Ice, if that's an
extra fifty thousand people they can deport in a year,
they might say, that's very worth it to us, especially
since we didn't have to go into the community and
have guns blazing and have armor and all of this.
But from the perspective of the immigrant Trice community, they
(33:30):
would say, yeah, But now no one is showing up
the court. And the whole point is you wanted people
to show up that the court. They had a case,
they were making their case. Now they have to make
a different case. You're violating their due process because you're
making them change the case that they had for no
good reason. This is I think another case where I
(33:51):
think there's likely to be success in the lower court.
But I think the Supreme Court likely at the end
of this probably stays any injunction, and behind the scenes,
what I think they would be debating and contemplating would
be some sort of context where they say ICE has
to be able to arrest somebody for something, and for us,
(34:11):
this is better than the whole depot scenario. And so
this is where I think these practical realities start colliding
with the laws. And certainly you wouldn't want to design
a framework where people were terrified to go to immigration
court because something bad was going to happen to them,
even mid process. So the point is, yes, they may
(34:32):
know that at the final hearing they will either win
or be deported, fine, so that there's always that, But
mid process, when you don't even think you have any
fear of being deported, the fact that you would go
to court for a check in hearing and be placed
in detention that same day, I think that's alarming to people.
And if the result is that people stop going to
(34:54):
court because of that, then there can be perhaps a
claim made that says encouraging people to basically end up
having in absentia removal orders, because that's what happens when
you don't go to court is you automatically forfeit your
case and you can be removed because you were in absentia,
you didn't show off the court, and so that's gonna
(35:16):
has to be the argument that's made, and we'll have
to see where the court come out on this.
Speaker 2 (35:22):
Lyne, it seems pretty clear at this point that they
had said they're going to arrest criminals first. They're arresting
the worst of the worst. They're not arresting the worst
of the worst, or even those with criminal records. The
latest ICE statistics show that June twenty ninth, there were
fifty seven and sixty one people detained by ICE. Seventy
(35:42):
one point seven percent had no criminal convictions. Why are
they not going after the criminals first as they said
they would.
Speaker 1 (35:52):
It's very hard, it's very time consuming, it's very resource intensive.
They don't if they go to somebody's houns with a
criminal case conviction, they don't show up with just one
ICE agent as you've been seeing. They show up with
multiple agents, they show up with a warrant. All of
that takes time and effort and energy to do. And
when they have one of these huge operations that they publicize,
(36:16):
it maybe captures two hundred and fifty people, and it
took many, many agents over many many days, and so
it doesn't yield the kind of numbers they're looking for.
They're looking to try to arrest thirty five hundred people
a day. And if you are trying to arrest thirty
five hundred people a day and get, you know, into
(36:39):
a scenario where you're over a million people you're deporting
in a year, then the only way to accomplish that
is to try to arrest people without criminal convictions that
you can find in other locations such as ice check
in court, or people who you know were here legally
but their status expired because they came in under one
(37:01):
of the statuses that the Biden administration created, which were
again you know, these are debates about whether those statuses
were proper to create or not. But the point is
these people are well known, they're out in the open,
they were here legally, they're the easiest to apprehend. And
so you do have some segment of the restrictionists individuals
(37:23):
who say that's the people you should be going after.
You need to get deported. Every single person who came
in under the Biden administration, whether they came in illegally
through the border or through one of these programs, and
I think ICE has taken that rhetoric seriously, and that
appears to be the large segment of who they're looking
(37:43):
for are the people who enter, be it illegally or
legally during the Biden administration, in addition to criminals, but again,
as you pointed out, not the majority of criminals because
of how resource intensive that process is.
Speaker 2 (37:58):
At this rate, they're not going to reach there are
one million deportations in a year.
Speaker 1 (38:04):
Well at this rate, that's true. But they've just over
the last month been given forty billion dollars, which is
going to take a while to ramp up because they're
first trying to bring back agents that had retired, So
that's the first thing they're trying to do that they're
gonna have to hire new agents. When they did this
with the Border Patrol under the Bush administration, they had
(38:25):
a lot of problems hiring people who didn't have criminal
convictions and weren't otherwise employed in the marketplace. It's not
this is not the easiest job to recruit people for it.
Because people understand what they sign up to become ICE agents.
It has a certain wear and tear to it. So
it's not really the easiest job that the recruit for.
(38:49):
And so from that standpoint, all of this is going
to have to be brought up. But as these agents
and resources start getting brought up, you will see the
numbers get higher. But then the question is going to
be fine, as the numbers get higher, now what And
that's where the society starts pushing back. And you're starting
to see this on that front too. So there's the
(39:11):
resource constraints on why the numbers are low. Those are
going to be taken away soon and the resources will
permit higher numbers of removals. And then the question is
when that's actually being implemented, what's that going to look
like and feel like in your average big city And
is there going to be the level of pushback where
the president himself is getting contacted by numbers of people saying, hey,
(39:37):
I know you're deporting XYZ, but don't support my person
and he keeps hearing that over and over again, and
everybody has a person that they care about, and now
suddenly you know, it becomes a process where the exception
swallow up the rule, and that's where we're going to
have to wait and see what happens there.
Speaker 2 (39:56):
Yeah, and more Americans are souring on Trump's immigration crackdown.
According to a new CBS news you gov survey, only
forty four percent of Americans approve of Trump's handling of immigration.
Fifty six percent disapprove. That approval rate is down ten
(40:17):
points since March.
Speaker 1 (40:19):
Obviously, everybody debates who's pulling what and who's getting pulled
and everything, but just in general, it's fair to say
that the ramifications of large scale immigration enforcement to the
level of being contemplated by the administration because people haven't
actually lived through it and seen it there, are going
(40:40):
to be just because it is inevitable things about that
process that makes people uncomfortable, and we're going to have
to see where the societal alarm bells are.
Speaker 2 (40:51):
Thanks so much, Leon. That's Leon Fresco of Honda Night
and that's it for this edition of The Bloomberg Law Show.
Remember you can always get the latest legal news is
honor 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
(41:12):
weeknight at ten pm Wall Street Time, I'm June Grosso
and you're listening to Bloomberg
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