May 21, 2025 • 38 mins
Elliot Stein, Bloomberg Intelligence senior litigation analyst, discusses whether President Trump can fire Fed Chair Jerome Powell. Bloomberg Law senior correspondent Alex Ebert discusses geofence warrants. Immigration law expert Leon Fresco discusses the Trump administration charging a New Jersey Congresswoman for a scuffle outside a detention facility. June Grasso hosts.
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Episode Transcript
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Speaker 1 (00:02):
This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2 (00:08):
President Trump has taken unprecedented steps to fire board members
at agencies created by Congress to be independent of the
White House. He's fired members of the Federal Trade Commission,
the Equal Employment Opportunity Commission, the National Labor Relations Board,
and the Merit Systems Protection Board, all without cause as
(00:31):
required by relevant statutes. All these firings are being challenged
in DC federal courts. Some are at the trial court level,
others are at the appellate level, and still others at
the Supreme Court. Joining me is Bloomberg Intelligence senior litigation
analyst Elliott Stein. Elliott, isn't the same issue that's coming
(00:51):
up over and over again in these cases involving firings.
Speaker 3 (00:56):
Yeah, exactly. You know, basically whether Humphy's Executor, which is
the Supreme Court decision from nineteen thirty five which upheld
four cause removal restrictions, still applies, because all these government
statutes for all these agencies where the commissioners are being
fired have the same or similar four cause removal restrictions.
(01:16):
And so the question is whether you know the Trump
administration is arguing that those restrictions are unconstitutional because they
impinge on the president's authority to run the executive branch.
Speaker 2 (01:26):
And these cases are all in the DC.
Speaker 3 (01:29):
Circuit, right exactly. Some of them are still at the
trial court level, so d DC, but yes, they're all
under the umbrella of the DC Circuit, and some have
already started reaching the Supreme Court.
Speaker 2 (01:39):
So tell us about the hearing yesterday over the firing
of the FTC commissioners.
Speaker 3 (01:45):
Yesterday's hearing was at the trial court level. It was
before Judge Ali Khan, and you know, it was similar
to what we've seen in other cases involving commissioners from
other agencies for example ANLRB, the National Labor Relations Board
and the MSPB, the Merit Systems Protection Board. And essentially,
(02:07):
the Trump administration is arguing that the four cause removal
restrictions that are in the governing statutes are unconstitutional and
the president should be able to fire these commissioners at
will because they're part of the executive branch and under
Article to the president has authority to control the executive branch.
(02:28):
The commissioners obviously take the opposite view and say, well,
you know, we have a Supreme Court decision from nineteen
thirty five Humphrey's Executor, which upheld four cause removal restrictions,
and that decision is still good law. The Supreme Court
hasn't overruled it, even though it revisited and interpreted that
decision in recent cases involving single director agencies like the
(02:51):
CFPB and the FAHFA.
Speaker 2 (02:53):
One of these cases actually reached an on bank panel
of the DC Circuit, which means the three judge panel
ruled in the case and then it was appealed to
the full DC Circuit.
Speaker 3 (03:07):
Essentially two of the cases, but they've sort of been consolidated.
Those are the cases involving the NRB and the MSPB,
the Merit Systems Protection Board. In that case, the trial
court Judge Howell said that the four cause removal restrictions
are fined their constitutional under Humphrey's Executor and as a result,
the termination of the commissioners from those agencies was improper,
(03:30):
and so she directed the agencies to reinstate the commissioners
their trump administration then went to the DC Circuit, which
in the first instance went to a three judge panel,
and the panel, which was comprised of two judges appointed
by Republicans and won by a Democrat, essentially said that
the trial court's ruling was unlikely to succeed on the merits,
(03:53):
and as a result, they put a hold on the
trial court's injunction that would have reinstated the commissioners. Commit
missioners then went to the full DC Circuit and requested
an ND bound review of that panel decision, and and
Bank Court essentially came out the other way from the
panel and said that the child Court's injunction to reinstate
(04:15):
the commissioners was fine because the commissioners were likely to
succeed on the merits. What's interesting is that you know,
these rulings are coming out completely along ideological lines. So
you know, I mentioned the three judge panel where you
had two judges appointed by Republicans ruling in favor of
the Trump administration and one judge appointed by a Democrat
(04:37):
ruling in favor of the commissioners. You had a similar
alignment at the en Bank level where you had seven
judges appointed by Democrats ruling in favor of the commissioners
and four judges appointed by Republicans ruling in favor of
the Trump administration.
Speaker 2 (04:51):
How are the judges appointed by Republicans get over Humphrey's executor,
which is still good law.
Speaker 3 (04:59):
Right, So they say the more recent Supreme Court decisions
concerning four cause removal restrictions sale a law which concerned
the CFPV director and Collins, which concerned the FHFA director,
really narrowed the holding of Humphrey's executor, and that the
more recent decisions essentially held that four cause removal restrictions
(05:23):
are improper for agencies that wield executive power, and that
in Humphreys, the FTC at that time didn't really wield
executive power because there was more like a quasi legislative
or quasi judicial agency. It basically acted as a legislative
aid and didn't quite have the full gamut of powers
(05:45):
that it has now. And as a result, you know,
these agencies where commissioners are being fired, wield executive power.
And you know two of the hallmarks of executive power
or rule making authority and enforcement authority, and most of
these agencies have authority, and as a result, they wield
executive power and they fall under the President's authority.
Speaker 2 (06:05):
So that was the only one that went up to
the full DC circuit.
Speaker 3 (06:09):
Yes, that's right. Most of these other ones are still
at the trial court level, including the FDC one that
was heard yesterday.
Speaker 2 (06:16):
There was a May sixteenth appellate court.
Speaker 3 (06:18):
Argument, right, So on May sixteenth, the NLRB and MSPB
cases were argued before the DC Circuit panel on the merits. Right.
We already discussed how the preliminary issue or sort of
the emergency issue regarding the injunction to reinstate them went up,
but those were just emergency issues here, and on May
(06:40):
sixteenth concerned the full merits of the trial court's ruling
to reinstate the commissioners. And how did that go, you know,
similar to how all these cases are going where you know,
you do see this alignment where that panel had again
two judges, Judge Walker and Judge Katsas, who were appointed
by President Trump, and then Judge Pan who was appointed
(07:01):
by President Biden. And you know, Judge Pan was very
critical or skeptical of the Trump administration's position. So I
expect her to rule in favor of the commissioners, but
you know, so likely be in the dissent. There are
two other judges. Judge Walker has taken a very expansive
view of executive authority. He wrote one of the opinions
(07:23):
when this case reached the DC Circuit panel previously, and
he took a very expansive view of executive authority. So
he's very likely to rule for President Trump, and then
the other judge, Katsis, I think will also rule for
President Trump. He was sort of trying to figure out
just how far the Trump administration's argument could go. You know,
(07:44):
he's trying to figure out sort of like what the
outer bounds would be. But at the end of the day,
I do expect that the Trump administration will win reversal
at the panel level, after which, of course the Commissioners
will then ask her and Bank review again. I expect
they'll win there, and then we'll probably be onto the
Supreme Court for ruling on the merits eventually.
Speaker 2 (08:02):
Do you need a scorecard? It's you're here to figure
out which cases are aware and which judges heard them.
So now tell us about the case that reached the
Supreme Court and Chief Justice Roberts handed down an order.
Speaker 3 (08:16):
So in the NRB and MSCB cases, you know, we
already talked about how it went to the on the
emergency issue of whether the commissioners could be reinstated and
went to the DC Circuit panel and bank. The Trump
administration lost at the end bank level, so they asked
the Supreme Court to put a stay on the ruling
that would have reinstated the commissioners, and the Supreme Court
(08:38):
put an administrative stay on the injunction that would have
reinstated the commissioners, you know, to give them more time
to actually rule on the issue. But they haven't done
anything subsequent to that, so, you know, I think it
seems like they're leaning. The Supreme Court is leaning towards
letting the case play out at the lower court level,
because in addition to requesting a stay of the injunction,
(09:00):
the Trump administration also asked the Supreme Court to actually
grant cert sort of you know, at a very early
stage in the litigation, before it even went all the
way through the DC Circuit on the merits. And the
Supreme Court hasn't ruled on that request either.
Speaker 2 (09:14):
The Trump administration seems to be doing that a lot,
pushing the envelope for it.
Speaker 3 (09:19):
Yeah, you know what we call the shadow dock here, right,
you know, they're entitled to do it. Other parties do it.
Speaker 2 (09:24):
Too, although no other president has gone to the Supreme
Court on an emergency basis. This often in this short
period of time, I think so far there are nineteen
emergency petitions from the Trump administration at the Supreme Court,
and that includes one file just today the administration asked
(09:45):
the court to stop a judge's order that would force
it to answer questions from a watchdog group and turnover
documents about Elon Musk's Department of Government efficiency. So they're
not slowing down with the petitions.
Speaker 3 (10:00):
Well, I mean, part of that is because a lot
of these cases do go through the DC's circuit, which
leans towards judges who have been appointed by Democrats, so
as a result of Trump administration and loses more cases there,
and then they go to the Supreme Court hoping for
a win.
Speaker 2 (10:14):
I mean, let's talk about how this affects perhaps the
Federal Reserve Board, right and your own power. So, first
of all, the Federal Reserve Act, is it the same
kind of language as in these other.
Speaker 3 (10:27):
Yes, it's similar. I mean, all these statutes sort of
have variations of the same theme, which is some sort
of four cause removal restriction. And sometimes it's defined, sometimes
it's not defined what four causes. When it's not defined.
It's generally assumed to mean some sort of neglect, inefficiency,
or malfeasance. The Federal Reserve Act does have four cause
(10:48):
removal restriction language in order to remove you know, Federal
Reserve Board governors. It doesn't have any such language to
sort of demote the or any of the vice chairs,
but to completely remove them from the board. It does
have that language.
Speaker 2 (11:05):
There have been, you know, arguments at the Supreme Court
where during the oral argument some of the justices singled
out the Feds being different. But what's your take on
whether the cases that we've been talking about indicate that
the court will rule that the president can fire the
Federal Reserve chair.
Speaker 3 (11:24):
Yeah. It's interesting because the issue does come up in
all these cases that we've already discussed, and you know
that the commissioners who were fired, and some of the
judges who are skeptical to the Trump administration's view say well,
you know, if you can fire these commissioners, there's nothing
to stop you from firing Federal Reserve Board governors. And
(11:45):
then it's interesting because then the Trump administration comes back
and says, well, you know, we haven't taken a position
on the Federal Reserve Board that's not before this court.
There may be arguments that Federal Reserve Board governors could
raise that are different than the ones before these other cases.
So it's sort of interesting to see how the Trump
administration tries to sidestep that argument. But at the end
(12:07):
of the day, I think the commissioners are right and
the judges that are skeptical to the Trump administration are
right because the Fed, you know, it has rule making authority,
it can bring enforcement actions. It does a lot of
things on the regulatory side of its responsibilities that would
fall under executive authority. Right. It also obviously has monetary
(12:31):
policy responsibilities, and those are even the Trump administration has
carved those out from falling under the president's authority. But
given its other powers, including rulemaking and enforcement action authority,
I think, in order to be consistent with trumpet administration's arguments,
which I do believe will prevail in these other cases,
(12:53):
that the President would be able under the law to
fire Federal Reserve Board governors. But I also say, you know,
the markets are more likely to dissuade the president from
doing that than the courts.
Speaker 2 (13:03):
Are, and the Supreme Court justices. Is it just the
to Clarence Thomas and Neil Gorsich who said that they
would overrule Humphrey's executor.
Speaker 3 (13:14):
Yeah, they are the only two that has explicitly said that.
And they did say that. I forget if it was
in Sale a Law or in Collins. I think it
was in Sale They said they would explicitly overrule Humphries.
But you know the rest of the Conservative justices, they've
interpreted Humphries to be a very narrow exception to the
general rule that the president can fire anyone in the
(13:35):
exec dipperience.
Speaker 2 (13:36):
And are we still waiting to see if the Supreme
Court rules on reinstatement of the NLRB and MSBT.
Speaker 3 (13:44):
Yeah, technically those requests are still pending. But you know,
given that the DC Circuit panel just last Friday on
the sixteenth, heard those cases on the merits, it would
be odd I think for the Supreme Court to take
up the case now. I think they'll wait for the
(14:05):
DC Circuit to rule.
Speaker 2 (14:06):
Well, the Supreme Court has lots of other emergency applications
to consider. Thanks so much, Elliott. That's Bloomberg Intelligence senior
litigation analyst Elliott Stein. Geofence warrants are relatively New Google
received its first in twenty sixteen, but the use of
such warrants has proliferated, as have court cases challenging them.
(14:28):
Unlike a warrant authorizing surveillance of a known suspect, geo
fencing is used to identify would be suspects. Google has
been the primary recipient of these warrants due to its
extensive location history database. Federal courts have split on whether
these geofence warrants are constitutional, but now New Jersey State
(14:50):
Court has ruled that police use of geofence warrants does
not violate constitutional privacy protections and is not an impermissible
general warrant. Joining me is Alex Ebert Bloomberg Law correspondent,
So Alex tell us what a geofence warrant is.
Speaker 1 (15:09):
A geofence warrant is a broad warrant that allows police
to find out who may have been in a certain
location at a given time. So imagine you're the police
and you're looking for people, let's say at the Capitol
riot on January sixth, and you want to find out, hey,
whose cell phones might have been present around the Capitol
(15:31):
when things started going down. Or let's say there was
another event where we have a ride after there's a
police shooting. Hypothetically police officers could find out who was
in the vicinity of building when it got broken into.
That's the sort of information that police officers can be
looking for.
Speaker 2 (15:48):
So what is the question when using a geofence warrant?
Is it privacy concerns? What are the constitutional concerns?
Speaker 1 (15:56):
That's right? So this all boils down to privacy, And
there's two sort of big questions that courts are grappling with.
One is this a general warrant that would violate the
Fourth Amendment protections we have against the police invading our privacy?
And two would this be considered the stuff that we
don't really have an entitlement to protect because it's held
(16:18):
by third parties. This is an issue that courts have
grappled with for decades and it gets only more complex
as more of our data is being given to third parties.
Speaker 2 (16:27):
Tell us what happened in this case? What you know
the facts of the case.
Speaker 1 (16:30):
Sure, So this case involves a Milltown robbery. Basically, what
happens is someone came into a convenience store gas station
late at night and the clerk who got assaulted hurt
someone talking on the phone. That was really all the
police had to go off of in this case. And
so because they knew there was a phone conversation going on,
(16:53):
they went to Google and said, hey, was there anyone
in this particular area. Usually it's a couple of blocks
that is making a phone call or accessing their phone
at this given time period. They went to Google and
Google found only one identifiable person that was there, and
from there the police officers were able to request from
(17:13):
Google demand that they provide the identification of that Googled
user and.
Speaker 2 (17:19):
So explain what the court found here.
Speaker 1 (17:22):
Sure, So the New Jersey Court of Appeals was extremely divided,
as other courts have been in recent times on this issue.
The majority found that this is okay. That there's a
process through which the police here are requesting information from Google,
and they're narrowing it down based on the location and
(17:43):
the time period that they're seeking pings on people's cell phones.
And from there it's fine, it's articulable suspicion. We've got
the probable cause necessary to get this information in a warrant.
But the descent here is saying, no way, what we're
asking for here is to hoover up all this information,
(18:03):
and you're able to tap into whomever might be in
this location at a given time, whether or not they
might be related to this crime or not.
Speaker 2 (18:12):
This New Jersey case is a case in state court,
but the federal courts are split on this. The Fourth Circuit,
sitting on Bank couldn't produce a majority opinion explaining why
they allowed the geofence warrant, so it issued eight separate concurrences.
Speaker 1 (18:31):
It is such a mess, Joon. So we have that
court going that direction, and then we have the Fifth Circuit,
what we would consider to be extremely conservative, going to
complete other routes. So we have this circuit split where
we have a court that says this isn't the search
at all, this is information held by third parties. The
defendants aren't entitled to protection over right. Then we've got
(18:53):
the Fifth Circuit saying this isn't just a search, this
is an unconstitutional general warrant. You know the thing that
you know we created the Fourth Amendment to stop. We
don't want the British officers coming in and ransacking our
houses just generally looking for stuff, and that's what you're
trying to do here with these general warrants of disinformation
at Google users and just pulling it back. We're talking
(19:16):
about hundreds of millions of devices in the United States.
You know, hundreds of millions of people have access to
just Google's accounts. And so if you're looking at the
split here, it's the difference between can we get at
that private information that's held by these service providers, by
these apps, or is that just too much data? Do
(19:38):
we have an updated sense of privacy that is being
invaded here?
Speaker 2 (19:43):
Do you have any idea how many of these GEO
warrants are issued in a year.
Speaker 1 (19:48):
I haven't been able to find information how mean it is. However,
when I've spoken with attorneys off the record, they've told
me that it's increasing again and again and again because
it's becoming more valuable in for We also have other
courts considering this issue right now. Just last month, the
Texas Criminal Court of Appeals, which is their highest level
(20:09):
of criminal courts, they allowed the geofense warrants, and the
Minnesota Supreme Court is considering right now a case on
the constitutionality of geofense warrants. So this is bubbling up
across the country.
Speaker 2 (20:21):
Could this be appealed to the New Jersey Supreme Court.
Speaker 1 (20:25):
Indeed, so because this is a divided decision in the
Court of Appeals, New Jersey Supreme Court will automatically grant
review if the loser wants it. That is a certainty here.
This is going to be a huge case and you're
going to see you know, amakis briefs from all over
the country pour in on this thing because there's so
(20:46):
few of these decisions that are either bubbling up or
at that highest court level. And in particular, New Jersey
is extremely strong in Fourth Amendment terms, and it has
interpreted both the national the federal Fourth amend and its
own privacy protections broadly for criminal defendants.
Speaker 2 (21:04):
Google is implementing changes to encryption. Explain what they're trying
to do, that's right.
Speaker 1 (21:10):
Yeah, So it's been over a year now since Google
has announced that it's going to be implementing changes to
encryption that would prevent somewhat you know, some of these
broader geofense warrants we're talking about. Instead of Google storing
this information, it will be stored on a local device,
or it will be you know, encrypted in such a
way that giving Google can't read it, and so it
(21:32):
can't turn over account information to police officers. But that's
not necessarily going to stop, either for Google or for
other apps. If you think about it, there's other warrants
that you know, could function well beyond this. Right, So,
if you're taking an Uber somewhere, why can't the police say, hey, Uber,
give me all of the rides that you know came
(21:53):
into this block, right or this series of blocks within
the you know, three hours the night April twenty fives,
or Facebook or Apple you know, were there any location
tags or people that bought things, you know, using Apple
Pay or whatever within certain radius around here. It's not
just Google that you know, defendants might have to worry about.
(22:14):
And beyond that, you could even think of ways where
you can get at this sort of information without really
looking at you know, pinging from someone's location through geolocation.
What if you could go to Google and say, hey,
give me anyone that's searched for, you know, the victim's
house or areas around there in a certain time period.
(22:35):
So you can think of creative ways where the police
could really use an expansive access to these geofence warrants
to look for information, you know, even outside of what
Google is trying to prohibit.
Speaker 2 (22:47):
Has the Supreme Court taken up any case that's similar
to these geo warrants?
Speaker 1 (22:52):
Not exactly on point tune. So over the course of
my lifetime, the Supreme Court has gone from a more
favorable access to third party data to a less favorable
access to third party data framework and stamp. And in
twenty eighteen, we had a Carpenter case, which is about
the pinging of cell phone towers, right and there the
(23:13):
Supreme Court made sort of a great ruling for defendants that, hey,
police have to get a warrant to get access to this.
You can't just hoover in this information. But there's nothing
that's on this level that involves this kind of technology
and this kind of.
Speaker 2 (23:29):
Warrant, And how's the privacy bar taking this case?
Speaker 1 (23:34):
Privacy rights attorneys are really up in arms about this
because of the huge implications here, and you know, for
the creative ways that it could be used. You know,
oftentimes these sort of maneuvers aren't really discovered until you know,
months or years after. You know, police are looking for
this information, but at the same time police officers say, hey,
we didn't have anything on this guy. You know that
(23:57):
committed this robbery. You know, there's no CCTV. There's nothing
really that would have given us this lead. And so
on one hand you have this extremely powerful tool for
police officers, and then the other you have this really scary,
sort of invasive ability to look into what we're doing
on our phones.
Speaker 2 (24:16):
I'm sure we're going to hear more about these warrants.
Thanks so much, Alex. That's Bloomberg Law correspondent Alex Ebert
coming up. A Democratic member of Congress charged with felony assault.
This is Bloomberg. New Jersey Congresswoman la Monica McIver appeared
in court today to face felony charges accusing her of
(24:37):
assaulting US immigration officers as she tried to prevent Newark's
mayor from being arrested outside a detention facility on May ninth.
Macgiver said the charges against her are purely political. They
mischaracterize and distort her actions, and are meant to criminalize
and deter legislative oversight. It is rare for the Department
(24:59):
of Justice to charge a sitting member of Congress criminally
for things other than campaign finance violations or corruption. House
Minority Leader Hakim Jeffries said it crosses the line.
Speaker 4 (25:12):
We're not going to be intimidated by their tactics to
try to force principled opposition from not standing up to
their extremism.
Speaker 2 (25:23):
My guest is immigration law expert Leon Fresco, a partner
at Holland and Knight. Leon. This arrest relates to that
scrum outside the private detention facility, and both sides are
pointing to video to illustrate their cases.
Speaker 5 (25:40):
The federal government's position is interestingly enough that the original
person that they had arrested, the Newark mayor Ros Barakai,
it turns out in the end, was not amenable to
addrespassing prosecution, so those charges were actually dropped, but that
this representative McIver is liable for the impeding of an
(26:03):
arrest which would have been an arrest that theoretically was
not prosecutable, which was the arrest of ros Baraka. So
that actually adds a little bit of a complication to
this case because if they're saying that she was impeding
the arrest of someone that theoretically shouldn't have been arrested
because this person is not actually being prosecuted, now hard
(26:23):
to say what was being impeded there, but there's that argument,
and then there's the second one about whether this representative
was actually pushing and shoving and grabbing Homeland Security Investigation agents.
I've seen the video. Look, if you take this unwanted
touching language broadly, you know, all of us commit battery
(26:45):
and assault every day, you know, if you're in a
sub way or if you're at a football game or something,
who knows. So that's the problem with these statues of
unwanted touching is the government has great discretion over who
it can prosecutor who it cannot. And what the Representative
McIver is going to say is that at the end
(27:07):
of the day, that this is a person trying to
have congressional oversight. There's a statute that literally says this
person is able to go into a facility without meaning
to get prior clear in that access is being blockaded.
And so this person is trying to do what they
can to get access to the facility and is being
(27:28):
impeded by the government, and so it will be up
for the courts to decide. I do think if this
is a criminal case happening in New Jersey that if
it doesn't get dismissed by a judge, it's very unlikely
that a jury will vote to convict the representative in
this set of facts. I don't see how it's possible
(27:48):
you could get jurors to unanimously agree to convict in
this scenario. I don't see basically any chance of that.
But nevertheless, if this prosecution continues, that's probably where we
would end up as a try and I'm sure either
a mistrial or even potentially an acquittal, because I don't
think the jury's going to take too kindly to this
kind of prosecution.
Speaker 2 (28:09):
You have armed ICE agents and they're claiming that this
woman jostled them, and she's screaming he just assaulted me.
It just seems like the facts are, to put it kindly,
the facts are not clear. So why make a federal
case out of this?
Speaker 5 (28:25):
I think the argument would be that they want the
congress people in the future to call ICE and arrange
these tours and have a more orderly process than just
showing up with cameras saying you know, we're against what's
going on in this facility, and then dramatically ordering one's
way into the facility. So they're trying to deter that.
(28:48):
But I don't think it's very likely that if this
case ends up going to trial. Look, it's possible to
end up going to trial because, as I said, this
assault and battery elements to this are very very broad,
and any of us could be convicted for them at
basically any time in terms of just an unwonted touching.
So then the question is what do you do after that?
(29:11):
And I think that's the question is are you actually
doing something that's a criminal act that allows you to
actually go to jail. Just in the history of New
Jersey and a lot of the trials they've had, it
seems unlikely that there would be able to be a
conviction in this case.
Speaker 2 (29:29):
She likened the charges to the indictment of the Wisconsin
judge who was accused of helping an undocumented immigrant elude
federal agencies. Is this more about the Trump administration proving
a point?
Speaker 5 (29:42):
I don't know if it's about them proving a point.
I'm just saying I think the desired effect is to
get people to coordinate their visits with ICE. But you know,
I leave it for your listeners to decide whether this
is the method that's the most productive for that purpose.
Speaker 2 (30:00):
Turned to another immigration issue, A Massachusetts judge has found
that the Trump administration violated an order he issued last
month that barred officials from deporting people to countries other
than their own home country without first giving them enough
time to object. Why is the administration even sending migrants
(30:23):
to South Sudan?
Speaker 5 (30:25):
Well, I think there was previously a dispute with South
Sudan about work for the US government to take back
people to be deported to South Sudan. And it looks
like this dispute has been resolved in a way where
South Sudan is now agreeing to take other people rather
than South Sudanese people back for deportations. And so to
(30:49):
the extent that the Trump administration has people that it
can't afford to other nations, it appears that it's going
to be trying to do that. And what did your
thing with regard to that? Is also that the Trump administration,
unlike many other countries whose temporary protective status it has
taken away, it actually renewed for six more months the
(31:11):
temporary protective status for South Sudan. So it does seem
like there's some coalescing of some arrangement there. But now,
of course we have an injunction and a tumultuous federal
court situation with regard to sending these individuals from other
countries to South Sudan.
Speaker 2 (31:30):
I have a practical question. If we're talking about eight
to twelve migrants, rather than possibly flouting a court order,
why not just keep them in detention. It's not a
station number.
Speaker 5 (31:43):
I mean, this is a very interesting question. And the
pattern in practice previously was to make sure that if
there was any litigation around a specific issue, that you
would not have that deportation until all the litigation was done.
But I think that the Trump administration is feeling very
frustrated with the amount of litigation, the amount of timing,
(32:07):
and they're just trying to take any window that's conceivably
possible that they can argue that a deportation was proper
so that they could then execute that deportation and then
go back to the courts and say, sorry, we don't
know what to do now that that deportation has happened.
Speaker 2 (32:23):
Why are they struggling with these cases that are distinct
in different ways. If there are so many migrants that
they say have to be deported, I.
Speaker 5 (32:33):
Think the issue is they're trying to create solutions to
a lot of different problems that have been long running
in the immigration system. So there's always been this large
group of people that just can't be deported because their
countries won't accept them. And so they're trying to send
these messages even if they can't accomplish a deportation. They're
(32:55):
trying to send the message to people who would otherwise
not be fearful of remains here because they don't think
they can be deported, to say, the last thing you
want is for us to come get you and then
send you to South Sudan or to El Salvador, or
to Rwanda or someplace like that. And I think so
a lot of this is to create an effect of
(33:17):
deterrent rather than just accomplish the twelve removal. So I
think that's what's really going on here, Lee.
Speaker 2 (33:23):
And as you know, the Supreme Court has said that
the government has to give undocumented migrants due process and
the ability to file habeas corpus petitions. And yesterday on
Capitol Hill, Homeland Security Secretary Christy Nome was asked to
explain what habeas corpus was by Democratic Senator Maggie Hassen
(33:46):
of New Hampshire.
Speaker 6 (33:48):
So Secretary Nome, what is habeas corpus? Well, habeas corpus
is a constitutional right that the president has to be
able to remove people from this country to.
Speaker 3 (33:58):
Spend their right.
Speaker 6 (33:59):
Let me stop man, spend the hebeas corpus. Excuse me,
that's that's incorrect. President, excuse me. Habeas corpus is the
legal principle that requires that the government provide a public
reason for detaining and imprisoning people.
Speaker 2 (34:15):
So how will the Department be able to follow the
Supreme Court's orders if its top official thinks habeas corpus
is the right of the president rather than the right
of those imprisoned or detained.
Speaker 5 (34:27):
I mean, it is a complicated situation. But for your listeners,
because we've certainly talked about habeas corpus in the past,
and so I do think it's useful for everybody to
be clear that corpus means body in Latin. And so
the point is, whenever you feel that your body is
being unnecessarily restrained or detained and formed by the government,
(34:50):
the traditional remedy for that is to file a habeas corpus,
saying take custody over this body and tell the government
to not unlawfully either detain or restrain it in some manner.
And that's what an abeas corpus is. So when you
hear that term, that's what it is. It's the ability
of any person in the United States who feels that
(35:12):
the government is unjustly doing something with detainment or restrainment
of their body to be able to go to a
court and say, you the government are acting unlawfully in
doing this. And so people are doing that now for
the purposes of trying to avoid removal under these various
new ways that the government is trying to accomplish removal,
(35:34):
such as the Alien Enemies Act or the Foreign Policy Act,
where the government is saying that people are here in
violation of US foreign policy interests. And so if the
Supreme Court has said, look, we know that there's normal
immigration laws, but you can't use that for these. You
got to go use a abeas corpus in order to
challenge this. That's what the Supreme Court has said. And
(35:57):
so now people are doing that, and so we're this
debate is is will the Trump administration actually do what's
called suspension of habeas corpus, which is the only way
it can do that under the laws that claims that
the United States is under an invasion, which is the
same reason it's citing the Alien Enemies Act. And so
(36:17):
those cases are currently not going well for the government,
and so will it be able to suspend habeas corpus
at this time? And so that's what the debate is about.
Speaker 2 (36:28):
And the federal judge in Massachusetts has said that the
Trump administration unquestionably violated the court order with this possible
deportation flight to South Sudan. So we'll see where that goes.
Speaker 5 (36:42):
That's where it gets complicated because the courts have so
far not said you have to bring someone back. Now,
it's a little bit different when someone's not in detention
like they are in El Salvador. So if the people
sent to South Sudan are not going to be placed
in a detention facility, well, and there's no theoretical problem
(37:02):
for the United States to quote unquote facilitate their entrance back,
because now it's just a matter of being given a
document that allows you to re enter the United States
and perhaps a playing ride, though that would be potentially
a subject of litigation. But the Al Savador cases troubled
because of the fact that they're in detention, so that
(37:23):
you would need al Savador to actually agree to levels
individuals out of detention. But in South today, and it's
not clear that these individuals will be in detention there,
and so in past cases people have been allowed to
re enter. The government has actually flown the people back
into the country, and we'll see if that's what happens here.
Speaker 2 (37:45):
I'm sure everyone will understand habeas corpus by the time
we're through with all these cases. Thanks so much, Leon.
That's Leon Fresco, a partner at Holland and Knight. 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 podcasts. You can find them on Apple Podcasts, Spotify,
(38:06):
and at www dot Bloomberg dot com, slash podcast Slash Law,
and remember to tune into The Bloomberg Law Show every
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):
President Trump has taken unprecedented steps to fire board members
at agencies created by Congress to be independent of the
White House. He's fired members of the Federal Trade Commission,
the Equal Employment Opportunity Commission, the National Labor Relations Board,
and the Merit Systems Protection Board, all without cause as
(00:31):
required by relevant statutes. All these firings are being challenged
in DC federal courts. Some are at the trial court level,
others are at the appellate level, and still others at
the Supreme Court. Joining me is Bloomberg Intelligence senior litigation
analyst Elliott Stein. Elliott, isn't the same issue that's coming
(00:51):
up over and over again in these cases involving firings.
Speaker 3 (00:56):
Yeah, exactly. You know, basically whether Humphy's Executor, which is
the Supreme Court decision from nineteen thirty five which upheld
four cause removal restrictions, still applies, because all these government
statutes for all these agencies where the commissioners are being
fired have the same or similar four cause removal restrictions.
(01:16):
And so the question is whether you know the Trump
administration is arguing that those restrictions are unconstitutional because they
impinge on the president's authority to run the executive branch.
Speaker 2 (01:26):
And these cases are all in the DC.
Speaker 3 (01:29):
Circuit, right exactly. Some of them are still at the
trial court level, so d DC, but yes, they're all
under the umbrella of the DC Circuit, and some have
already started reaching the Supreme Court.
Speaker 2 (01:39):
So tell us about the hearing yesterday over the firing
of the FTC commissioners.
Speaker 3 (01:45):
Yesterday's hearing was at the trial court level. It was
before Judge Ali Khan, and you know, it was similar
to what we've seen in other cases involving commissioners from
other agencies for example ANLRB, the National Labor Relations Board
and the MSPB, the Merit Systems Protection Board. And essentially,
(02:07):
the Trump administration is arguing that the four cause removal
restrictions that are in the governing statutes are unconstitutional and
the president should be able to fire these commissioners at
will because they're part of the executive branch and under
Article to the president has authority to control the executive branch.
(02:28):
The commissioners obviously take the opposite view and say, well,
you know, we have a Supreme Court decision from nineteen
thirty five Humphrey's Executor, which upheld four cause removal restrictions,
and that decision is still good law. The Supreme Court
hasn't overruled it, even though it revisited and interpreted that
decision in recent cases involving single director agencies like the
(02:51):
CFPB and the FAHFA.
Speaker 2 (02:53):
One of these cases actually reached an on bank panel
of the DC Circuit, which means the three judge panel
ruled in the case and then it was appealed to
the full DC Circuit.
Speaker 3 (03:07):
Essentially two of the cases, but they've sort of been consolidated.
Those are the cases involving the NRB and the MSPB,
the Merit Systems Protection Board. In that case, the trial
court Judge Howell said that the four cause removal restrictions
are fined their constitutional under Humphrey's Executor and as a result,
the termination of the commissioners from those agencies was improper,
(03:30):
and so she directed the agencies to reinstate the commissioners
their trump administration then went to the DC Circuit, which
in the first instance went to a three judge panel,
and the panel, which was comprised of two judges appointed
by Republicans and won by a Democrat, essentially said that
the trial court's ruling was unlikely to succeed on the merits,
(03:53):
and as a result, they put a hold on the
trial court's injunction that would have reinstated the commissioners. Commit
missioners then went to the full DC Circuit and requested
an ND bound review of that panel decision, and and
Bank Court essentially came out the other way from the
panel and said that the child Court's injunction to reinstate
(04:15):
the commissioners was fine because the commissioners were likely to
succeed on the merits. What's interesting is that you know,
these rulings are coming out completely along ideological lines. So
you know, I mentioned the three judge panel where you
had two judges appointed by Republicans ruling in favor of
the Trump administration and one judge appointed by a Democrat
(04:37):
ruling in favor of the commissioners. You had a similar
alignment at the en Bank level where you had seven
judges appointed by Democrats ruling in favor of the commissioners
and four judges appointed by Republicans ruling in favor of
the Trump administration.
Speaker 2 (04:51):
How are the judges appointed by Republicans get over Humphrey's executor,
which is still good law.
Speaker 3 (04:59):
Right, So they say the more recent Supreme Court decisions
concerning four cause removal restrictions sale a law which concerned
the CFPV director and Collins, which concerned the FHFA director,
really narrowed the holding of Humphrey's executor, and that the
more recent decisions essentially held that four cause removal restrictions
(05:23):
are improper for agencies that wield executive power, and that
in Humphreys, the FTC at that time didn't really wield
executive power because there was more like a quasi legislative
or quasi judicial agency. It basically acted as a legislative
aid and didn't quite have the full gamut of powers
(05:45):
that it has now. And as a result, you know,
these agencies where commissioners are being fired, wield executive power.
And you know two of the hallmarks of executive power
or rule making authority and enforcement authority, and most of
these agencies have authority, and as a result, they wield
executive power and they fall under the President's authority.
Speaker 2 (06:05):
So that was the only one that went up to
the full DC circuit.
Speaker 3 (06:09):
Yes, that's right. Most of these other ones are still
at the trial court level, including the FDC one that
was heard yesterday.
Speaker 2 (06:16):
There was a May sixteenth appellate court.
Speaker 3 (06:18):
Argument, right, So on May sixteenth, the NLRB and MSPB
cases were argued before the DC Circuit panel on the merits. Right.
We already discussed how the preliminary issue or sort of
the emergency issue regarding the injunction to reinstate them went up,
but those were just emergency issues here, and on May
(06:40):
sixteenth concerned the full merits of the trial court's ruling
to reinstate the commissioners. And how did that go, you know,
similar to how all these cases are going where you know,
you do see this alignment where that panel had again
two judges, Judge Walker and Judge Katsas, who were appointed
by President Trump, and then Judge Pan who was appointed
(07:01):
by President Biden. And you know, Judge Pan was very
critical or skeptical of the Trump administration's position. So I
expect her to rule in favor of the commissioners, but
you know, so likely be in the dissent. There are
two other judges. Judge Walker has taken a very expansive
view of executive authority. He wrote one of the opinions
(07:23):
when this case reached the DC Circuit panel previously, and
he took a very expansive view of executive authority. So
he's very likely to rule for President Trump, and then
the other judge, Katsis, I think will also rule for
President Trump. He was sort of trying to figure out
just how far the Trump administration's argument could go. You know,
(07:44):
he's trying to figure out sort of like what the
outer bounds would be. But at the end of the day,
I do expect that the Trump administration will win reversal
at the panel level, after which, of course the Commissioners
will then ask her and Bank review again. I expect
they'll win there, and then we'll probably be onto the
Supreme Court for ruling on the merits eventually.
Speaker 2 (08:02):
Do you need a scorecard? It's you're here to figure
out which cases are aware and which judges heard them.
So now tell us about the case that reached the
Supreme Court and Chief Justice Roberts handed down an order.
Speaker 3 (08:16):
So in the NRB and MSCB cases, you know, we
already talked about how it went to the on the
emergency issue of whether the commissioners could be reinstated and
went to the DC Circuit panel and bank. The Trump
administration lost at the end bank level, so they asked
the Supreme Court to put a stay on the ruling
that would have reinstated the commissioners, and the Supreme Court
(08:38):
put an administrative stay on the injunction that would have
reinstated the commissioners, you know, to give them more time
to actually rule on the issue. But they haven't done
anything subsequent to that, so, you know, I think it
seems like they're leaning. The Supreme Court is leaning towards
letting the case play out at the lower court level,
because in addition to requesting a stay of the injunction,
(09:00):
the Trump administration also asked the Supreme Court to actually
grant cert sort of you know, at a very early
stage in the litigation, before it even went all the
way through the DC Circuit on the merits. And the
Supreme Court hasn't ruled on that request either.
Speaker 2 (09:14):
The Trump administration seems to be doing that a lot,
pushing the envelope for it.
Speaker 3 (09:19):
Yeah, you know what we call the shadow dock here, right,
you know, they're entitled to do it. Other parties do it.
Speaker 2 (09:24):
Too, although no other president has gone to the Supreme
Court on an emergency basis. This often in this short
period of time, I think so far there are nineteen
emergency petitions from the Trump administration at the Supreme Court,
and that includes one file just today the administration asked
(09:45):
the court to stop a judge's order that would force
it to answer questions from a watchdog group and turnover
documents about Elon Musk's Department of Government efficiency. So they're
not slowing down with the petitions.
Speaker 3 (10:00):
Well, I mean, part of that is because a lot
of these cases do go through the DC's circuit, which
leans towards judges who have been appointed by Democrats, so
as a result of Trump administration and loses more cases there,
and then they go to the Supreme Court hoping for
a win.
Speaker 2 (10:14):
I mean, let's talk about how this affects perhaps the
Federal Reserve Board, right and your own power. So, first
of all, the Federal Reserve Act, is it the same
kind of language as in these other.
Speaker 3 (10:27):
Yes, it's similar. I mean, all these statutes sort of
have variations of the same theme, which is some sort
of four cause removal restriction. And sometimes it's defined, sometimes
it's not defined what four causes. When it's not defined.
It's generally assumed to mean some sort of neglect, inefficiency,
or malfeasance. The Federal Reserve Act does have four cause
(10:48):
removal restriction language in order to remove you know, Federal
Reserve Board governors. It doesn't have any such language to
sort of demote the or any of the vice chairs,
but to completely remove them from the board. It does
have that language.
Speaker 2 (11:05):
There have been, you know, arguments at the Supreme Court
where during the oral argument some of the justices singled
out the Feds being different. But what's your take on
whether the cases that we've been talking about indicate that
the court will rule that the president can fire the
Federal Reserve chair.
Speaker 3 (11:24):
Yeah. It's interesting because the issue does come up in
all these cases that we've already discussed, and you know
that the commissioners who were fired, and some of the
judges who are skeptical to the Trump administration's view say well,
you know, if you can fire these commissioners, there's nothing
to stop you from firing Federal Reserve Board governors. And
(11:45):
then it's interesting because then the Trump administration comes back
and says, well, you know, we haven't taken a position
on the Federal Reserve Board that's not before this court.
There may be arguments that Federal Reserve Board governors could
raise that are different than the ones before these other cases.
So it's sort of interesting to see how the Trump
administration tries to sidestep that argument. But at the end
(12:07):
of the day, I think the commissioners are right and
the judges that are skeptical to the Trump administration are
right because the Fed, you know, it has rule making authority,
it can bring enforcement actions. It does a lot of
things on the regulatory side of its responsibilities that would
fall under executive authority. Right. It also obviously has monetary
(12:31):
policy responsibilities, and those are even the Trump administration has
carved those out from falling under the president's authority. But
given its other powers, including rulemaking and enforcement action authority,
I think, in order to be consistent with trumpet administration's arguments,
which I do believe will prevail in these other cases,
(12:53):
that the President would be able under the law to
fire Federal Reserve Board governors. But I also say, you know,
the markets are more likely to dissuade the president from
doing that than the courts.
Speaker 2 (13:03):
Are, and the Supreme Court justices. Is it just the
to Clarence Thomas and Neil Gorsich who said that they
would overrule Humphrey's executor.
Speaker 3 (13:14):
Yeah, they are the only two that has explicitly said that.
And they did say that. I forget if it was
in Sale a Law or in Collins. I think it
was in Sale They said they would explicitly overrule Humphries.
But you know the rest of the Conservative justices, they've
interpreted Humphries to be a very narrow exception to the
general rule that the president can fire anyone in the
(13:35):
exec dipperience.
Speaker 2 (13:36):
And are we still waiting to see if the Supreme
Court rules on reinstatement of the NLRB and MSBT.
Speaker 3 (13:44):
Yeah, technically those requests are still pending. But you know,
given that the DC Circuit panel just last Friday on
the sixteenth, heard those cases on the merits, it would
be odd I think for the Supreme Court to take
up the case now. I think they'll wait for the
(14:05):
DC Circuit to rule.
Speaker 2 (14:06):
Well, the Supreme Court has lots of other emergency applications
to consider. Thanks so much, Elliott. That's Bloomberg Intelligence senior
litigation analyst Elliott Stein. Geofence warrants are relatively New Google
received its first in twenty sixteen, but the use of
such warrants has proliferated, as have court cases challenging them.
(14:28):
Unlike a warrant authorizing surveillance of a known suspect, geo
fencing is used to identify would be suspects. Google has
been the primary recipient of these warrants due to its
extensive location history database. Federal courts have split on whether
these geofence warrants are constitutional, but now New Jersey State
(14:50):
Court has ruled that police use of geofence warrants does
not violate constitutional privacy protections and is not an impermissible
general warrant. Joining me is Alex Ebert Bloomberg Law correspondent,
So Alex tell us what a geofence warrant is.
Speaker 1 (15:09):
A geofence warrant is a broad warrant that allows police
to find out who may have been in a certain
location at a given time. So imagine you're the police
and you're looking for people, let's say at the Capitol
riot on January sixth, and you want to find out, hey,
whose cell phones might have been present around the Capitol
(15:31):
when things started going down. Or let's say there was
another event where we have a ride after there's a
police shooting. Hypothetically police officers could find out who was
in the vicinity of building when it got broken into.
That's the sort of information that police officers can be
looking for.
Speaker 2 (15:48):
So what is the question when using a geofence warrant?
Is it privacy concerns? What are the constitutional concerns?
Speaker 1 (15:56):
That's right? So this all boils down to privacy, And
there's two sort of big questions that courts are grappling with.
One is this a general warrant that would violate the
Fourth Amendment protections we have against the police invading our privacy?
And two would this be considered the stuff that we
don't really have an entitlement to protect because it's held
(16:18):
by third parties. This is an issue that courts have
grappled with for decades and it gets only more complex
as more of our data is being given to third parties.
Speaker 2 (16:27):
Tell us what happened in this case? What you know
the facts of the case.
Speaker 1 (16:30):
Sure, So this case involves a Milltown robbery. Basically, what
happens is someone came into a convenience store gas station
late at night and the clerk who got assaulted hurt
someone talking on the phone. That was really all the
police had to go off of in this case. And
so because they knew there was a phone conversation going on,
(16:53):
they went to Google and said, hey, was there anyone
in this particular area. Usually it's a couple of blocks
that is making a phone call or accessing their phone
at this given time period. They went to Google and
Google found only one identifiable person that was there, and
from there the police officers were able to request from
(17:13):
Google demand that they provide the identification of that Googled
user and.
Speaker 2 (17:19):
So explain what the court found here.
Speaker 1 (17:22):
Sure, So the New Jersey Court of Appeals was extremely divided,
as other courts have been in recent times on this issue.
The majority found that this is okay. That there's a
process through which the police here are requesting information from Google,
and they're narrowing it down based on the location and
(17:43):
the time period that they're seeking pings on people's cell phones.
And from there it's fine, it's articulable suspicion. We've got
the probable cause necessary to get this information in a warrant.
But the descent here is saying, no way, what we're
asking for here is to hoover up all this information,
(18:03):
and you're able to tap into whomever might be in
this location at a given time, whether or not they
might be related to this crime or not.
Speaker 2 (18:12):
This New Jersey case is a case in state court,
but the federal courts are split on this. The Fourth Circuit,
sitting on Bank couldn't produce a majority opinion explaining why
they allowed the geofence warrant, so it issued eight separate concurrences.
Speaker 1 (18:31):
It is such a mess, Joon. So we have that
court going that direction, and then we have the Fifth Circuit,
what we would consider to be extremely conservative, going to
complete other routes. So we have this circuit split where
we have a court that says this isn't the search
at all, this is information held by third parties. The
defendants aren't entitled to protection over right. Then we've got
(18:53):
the Fifth Circuit saying this isn't just a search, this
is an unconstitutional general warrant. You know the thing that
you know we created the Fourth Amendment to stop. We
don't want the British officers coming in and ransacking our
houses just generally looking for stuff, and that's what you're
trying to do here with these general warrants of disinformation
at Google users and just pulling it back. We're talking
(19:16):
about hundreds of millions of devices in the United States.
You know, hundreds of millions of people have access to
just Google's accounts. And so if you're looking at the
split here, it's the difference between can we get at
that private information that's held by these service providers, by
these apps, or is that just too much data? Do
(19:38):
we have an updated sense of privacy that is being
invaded here?
Speaker 2 (19:43):
Do you have any idea how many of these GEO
warrants are issued in a year.
Speaker 1 (19:48):
I haven't been able to find information how mean it is. However,
when I've spoken with attorneys off the record, they've told
me that it's increasing again and again and again because
it's becoming more valuable in for We also have other
courts considering this issue right now. Just last month, the
Texas Criminal Court of Appeals, which is their highest level
(20:09):
of criminal courts, they allowed the geofense warrants, and the
Minnesota Supreme Court is considering right now a case on
the constitutionality of geofense warrants. So this is bubbling up
across the country.
Speaker 2 (20:21):
Could this be appealed to the New Jersey Supreme Court.
Speaker 1 (20:25):
Indeed, so because this is a divided decision in the
Court of Appeals, New Jersey Supreme Court will automatically grant
review if the loser wants it. That is a certainty here.
This is going to be a huge case and you're
going to see you know, amakis briefs from all over
the country pour in on this thing because there's so
(20:46):
few of these decisions that are either bubbling up or
at that highest court level. And in particular, New Jersey
is extremely strong in Fourth Amendment terms, and it has
interpreted both the national the federal Fourth amend and its
own privacy protections broadly for criminal defendants.
Speaker 2 (21:04):
Google is implementing changes to encryption. Explain what they're trying
to do, that's right.
Speaker 1 (21:10):
Yeah, So it's been over a year now since Google
has announced that it's going to be implementing changes to
encryption that would prevent somewhat you know, some of these
broader geofense warrants we're talking about. Instead of Google storing
this information, it will be stored on a local device,
or it will be you know, encrypted in such a
way that giving Google can't read it, and so it
(21:32):
can't turn over account information to police officers. But that's
not necessarily going to stop, either for Google or for
other apps. If you think about it, there's other warrants
that you know, could function well beyond this. Right, So,
if you're taking an Uber somewhere, why can't the police say, hey, Uber,
give me all of the rides that you know came
(21:53):
into this block, right or this series of blocks within
the you know, three hours the night April twenty fives,
or Facebook or Apple you know, were there any location
tags or people that bought things, you know, using Apple
Pay or whatever within certain radius around here. It's not
just Google that you know, defendants might have to worry about.
(22:14):
And beyond that, you could even think of ways where
you can get at this sort of information without really
looking at you know, pinging from someone's location through geolocation.
What if you could go to Google and say, hey,
give me anyone that's searched for, you know, the victim's
house or areas around there in a certain time period.
(22:35):
So you can think of creative ways where the police
could really use an expansive access to these geofence warrants
to look for information, you know, even outside of what
Google is trying to prohibit.
Speaker 2 (22:47):
Has the Supreme Court taken up any case that's similar
to these geo warrants?
Speaker 1 (22:52):
Not exactly on point tune. So over the course of
my lifetime, the Supreme Court has gone from a more
favorable access to third party data to a less favorable
access to third party data framework and stamp. And in
twenty eighteen, we had a Carpenter case, which is about
the pinging of cell phone towers, right and there the
(23:13):
Supreme Court made sort of a great ruling for defendants that, hey,
police have to get a warrant to get access to this.
You can't just hoover in this information. But there's nothing
that's on this level that involves this kind of technology
and this kind of.
Speaker 2 (23:29):
Warrant, And how's the privacy bar taking this case?
Speaker 1 (23:34):
Privacy rights attorneys are really up in arms about this
because of the huge implications here, and you know, for
the creative ways that it could be used. You know,
oftentimes these sort of maneuvers aren't really discovered until you know,
months or years after. You know, police are looking for
this information, but at the same time police officers say, hey,
we didn't have anything on this guy. You know that
(23:57):
committed this robbery. You know, there's no CCTV. There's nothing
really that would have given us this lead. And so
on one hand you have this extremely powerful tool for
police officers, and then the other you have this really scary,
sort of invasive ability to look into what we're doing
on our phones.
Speaker 2 (24:16):
I'm sure we're going to hear more about these warrants.
Thanks so much, Alex. That's Bloomberg Law correspondent Alex Ebert
coming up. A Democratic member of Congress charged with felony assault.
This is Bloomberg. New Jersey Congresswoman la Monica McIver appeared
in court today to face felony charges accusing her of
(24:37):
assaulting US immigration officers as she tried to prevent Newark's
mayor from being arrested outside a detention facility on May ninth.
Macgiver said the charges against her are purely political. They
mischaracterize and distort her actions, and are meant to criminalize
and deter legislative oversight. It is rare for the Department
(24:59):
of Justice to charge a sitting member of Congress criminally
for things other than campaign finance violations or corruption. House
Minority Leader Hakim Jeffries said it crosses the line.
Speaker 4 (25:12):
We're not going to be intimidated by their tactics to
try to force principled opposition from not standing up to
their extremism.
Speaker 2 (25:23):
My guest is immigration law expert Leon Fresco, a partner
at Holland and Knight. Leon. This arrest relates to that
scrum outside the private detention facility, and both sides are
pointing to video to illustrate their cases.
Speaker 5 (25:40):
The federal government's position is interestingly enough that the original
person that they had arrested, the Newark mayor Ros Barakai,
it turns out in the end, was not amenable to
addrespassing prosecution, so those charges were actually dropped, but that
this representative McIver is liable for the impeding of an
(26:03):
arrest which would have been an arrest that theoretically was
not prosecutable, which was the arrest of ros Baraka. So
that actually adds a little bit of a complication to
this case because if they're saying that she was impeding
the arrest of someone that theoretically shouldn't have been arrested
because this person is not actually being prosecuted, now hard
(26:23):
to say what was being impeded there, but there's that argument,
and then there's the second one about whether this representative
was actually pushing and shoving and grabbing Homeland Security Investigation agents.
I've seen the video. Look, if you take this unwanted
touching language broadly, you know, all of us commit battery
(26:45):
and assault every day, you know, if you're in a
sub way or if you're at a football game or something,
who knows. So that's the problem with these statues of
unwanted touching is the government has great discretion over who
it can prosecutor who it cannot. And what the Representative
McIver is going to say is that at the end
(27:07):
of the day, that this is a person trying to
have congressional oversight. There's a statute that literally says this
person is able to go into a facility without meaning
to get prior clear in that access is being blockaded.
And so this person is trying to do what they
can to get access to the facility and is being
(27:28):
impeded by the government, and so it will be up
for the courts to decide. I do think if this
is a criminal case happening in New Jersey that if
it doesn't get dismissed by a judge, it's very unlikely
that a jury will vote to convict the representative in
this set of facts. I don't see how it's possible
(27:48):
you could get jurors to unanimously agree to convict in
this scenario. I don't see basically any chance of that.
But nevertheless, if this prosecution continues, that's probably where we
would end up as a try and I'm sure either
a mistrial or even potentially an acquittal, because I don't
think the jury's going to take too kindly to this
kind of prosecution.
Speaker 2 (28:09):
You have armed ICE agents and they're claiming that this
woman jostled them, and she's screaming he just assaulted me.
It just seems like the facts are, to put it kindly,
the facts are not clear. So why make a federal
case out of this?
Speaker 5 (28:25):
I think the argument would be that they want the
congress people in the future to call ICE and arrange
these tours and have a more orderly process than just
showing up with cameras saying you know, we're against what's
going on in this facility, and then dramatically ordering one's
way into the facility. So they're trying to deter that.
(28:48):
But I don't think it's very likely that if this
case ends up going to trial. Look, it's possible to
end up going to trial because, as I said, this
assault and battery elements to this are very very broad,
and any of us could be convicted for them at
basically any time in terms of just an unwonted touching.
So then the question is what do you do after that?
(29:11):
And I think that's the question is are you actually
doing something that's a criminal act that allows you to
actually go to jail. Just in the history of New
Jersey and a lot of the trials they've had, it
seems unlikely that there would be able to be a
conviction in this case.
Speaker 2 (29:29):
She likened the charges to the indictment of the Wisconsin
judge who was accused of helping an undocumented immigrant elude
federal agencies. Is this more about the Trump administration proving
a point?
Speaker 5 (29:42):
I don't know if it's about them proving a point.
I'm just saying I think the desired effect is to
get people to coordinate their visits with ICE. But you know,
I leave it for your listeners to decide whether this
is the method that's the most productive for that purpose.
Speaker 2 (30:00):
Turned to another immigration issue, A Massachusetts judge has found
that the Trump administration violated an order he issued last
month that barred officials from deporting people to countries other
than their own home country without first giving them enough
time to object. Why is the administration even sending migrants
(30:23):
to South Sudan?
Speaker 5 (30:25):
Well, I think there was previously a dispute with South
Sudan about work for the US government to take back
people to be deported to South Sudan. And it looks
like this dispute has been resolved in a way where
South Sudan is now agreeing to take other people rather
than South Sudanese people back for deportations. And so to
(30:49):
the extent that the Trump administration has people that it
can't afford to other nations, it appears that it's going
to be trying to do that. And what did your
thing with regard to that? Is also that the Trump administration,
unlike many other countries whose temporary protective status it has
taken away, it actually renewed for six more months the
(31:11):
temporary protective status for South Sudan. So it does seem
like there's some coalescing of some arrangement there. But now,
of course we have an injunction and a tumultuous federal
court situation with regard to sending these individuals from other
countries to South Sudan.
Speaker 2 (31:30):
I have a practical question. If we're talking about eight
to twelve migrants, rather than possibly flouting a court order,
why not just keep them in detention. It's not a
station number.
Speaker 5 (31:43):
I mean, this is a very interesting question. And the
pattern in practice previously was to make sure that if
there was any litigation around a specific issue, that you
would not have that deportation until all the litigation was done.
But I think that the Trump administration is feeling very
frustrated with the amount of litigation, the amount of timing,
(32:07):
and they're just trying to take any window that's conceivably
possible that they can argue that a deportation was proper
so that they could then execute that deportation and then
go back to the courts and say, sorry, we don't
know what to do now that that deportation has happened.
Speaker 2 (32:23):
Why are they struggling with these cases that are distinct
in different ways. If there are so many migrants that
they say have to be deported, I.
Speaker 5 (32:33):
Think the issue is they're trying to create solutions to
a lot of different problems that have been long running
in the immigration system. So there's always been this large
group of people that just can't be deported because their
countries won't accept them. And so they're trying to send
these messages even if they can't accomplish a deportation. They're
(32:55):
trying to send the message to people who would otherwise
not be fearful of remains here because they don't think
they can be deported, to say, the last thing you
want is for us to come get you and then
send you to South Sudan or to El Salvador, or
to Rwanda or someplace like that. And I think so
a lot of this is to create an effect of
(33:17):
deterrent rather than just accomplish the twelve removal. So I
think that's what's really going on here, Lee.
Speaker 2 (33:23):
And as you know, the Supreme Court has said that
the government has to give undocumented migrants due process and
the ability to file habeas corpus petitions. And yesterday on
Capitol Hill, Homeland Security Secretary Christy Nome was asked to
explain what habeas corpus was by Democratic Senator Maggie Hassen
(33:46):
of New Hampshire.
Speaker 6 (33:48):
So Secretary Nome, what is habeas corpus? Well, habeas corpus
is a constitutional right that the president has to be
able to remove people from this country to.
Speaker 3 (33:58):
Spend their right.
Speaker 6 (33:59):
Let me stop man, spend the hebeas corpus. Excuse me,
that's that's incorrect. President, excuse me. Habeas corpus is the
legal principle that requires that the government provide a public
reason for detaining and imprisoning people.
Speaker 2 (34:15):
So how will the Department be able to follow the
Supreme Court's orders if its top official thinks habeas corpus
is the right of the president rather than the right
of those imprisoned or detained.
Speaker 5 (34:27):
I mean, it is a complicated situation. But for your listeners,
because we've certainly talked about habeas corpus in the past,
and so I do think it's useful for everybody to
be clear that corpus means body in Latin. And so
the point is, whenever you feel that your body is
being unnecessarily restrained or detained and formed by the government,
(34:50):
the traditional remedy for that is to file a habeas corpus,
saying take custody over this body and tell the government
to not unlawfully either detain or restrain it in some manner.
And that's what an abeas corpus is. So when you
hear that term, that's what it is. It's the ability
of any person in the United States who feels that
(35:12):
the government is unjustly doing something with detainment or restrainment
of their body to be able to go to a
court and say, you the government are acting unlawfully in
doing this. And so people are doing that now for
the purposes of trying to avoid removal under these various
new ways that the government is trying to accomplish removal,
(35:34):
such as the Alien Enemies Act or the Foreign Policy Act,
where the government is saying that people are here in
violation of US foreign policy interests. And so if the
Supreme Court has said, look, we know that there's normal
immigration laws, but you can't use that for these. You
got to go use a abeas corpus in order to
challenge this. That's what the Supreme Court has said. And
(35:57):
so now people are doing that, and so we're this
debate is is will the Trump administration actually do what's
called suspension of habeas corpus, which is the only way
it can do that under the laws that claims that
the United States is under an invasion, which is the
same reason it's citing the Alien Enemies Act. And so
(36:17):
those cases are currently not going well for the government,
and so will it be able to suspend habeas corpus
at this time? And so that's what the debate is about.
Speaker 2 (36:28):
And the federal judge in Massachusetts has said that the
Trump administration unquestionably violated the court order with this possible
deportation flight to South Sudan. So we'll see where that goes.
Speaker 5 (36:42):
That's where it gets complicated because the courts have so
far not said you have to bring someone back. Now,
it's a little bit different when someone's not in detention
like they are in El Salvador. So if the people
sent to South Sudan are not going to be placed
in a detention facility, well, and there's no theoretical problem
(37:02):
for the United States to quote unquote facilitate their entrance back,
because now it's just a matter of being given a
document that allows you to re enter the United States
and perhaps a playing ride, though that would be potentially
a subject of litigation. But the Al Savador cases troubled
because of the fact that they're in detention, so that
(37:23):
you would need al Savador to actually agree to levels
individuals out of detention. But in South today, and it's
not clear that these individuals will be in detention there,
and so in past cases people have been allowed to
re enter. The government has actually flown the people back
into the country, and we'll see if that's what happens here.
Speaker 2 (37:45):
I'm sure everyone will understand habeas corpus by the time
we're through with all these cases. Thanks so much, Leon.
That's Leon Fresco, a partner at Holland and Knight. 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 podcasts. You can find them on Apple Podcasts, Spotify,
(38:06):
and at www dot Bloomberg dot com, slash podcast Slash Law,
and remember to tune into The Bloomberg Law Show every
weeknight at ten pm Wall Street Time. I'm June Grosso
and you're listening to Bloomberg
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