June 24, 2025 • 39 mins
Immigration law expert Leon Fresco, a partner at Holland & Knight, discusses the latest immigration cases from widespread arrests at courthouses to sanctuary cities fighting the Trump administration. Judiciary expert Carl Tobias, a professor at the University of Richmond Law School, discusses Trump’s judicial picks. June Grasso hosts.
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Episode Transcript
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Speaker 1 (00:02):
This is Bloomberg Law with June Grosseo from Bloomberg Radio.
After more than three months in federal custody, Columbia University
graduate and activist Mahmoud Khalil was released from an iced
attention facility in Louisiana on Friday. He vowed to continue
the protests against Israel and the war in Gaza that
(00:24):
got him arrested in the Trump administration's crackdown on foreign
students who joined campus protests.
Speaker 2 (00:31):
The US government is funding this genocide and Columbia University
is investing in this genocide. This is what I was protesting.
This is what I would continue to protest with every
one of you.
Speaker 1 (00:48):
A federal judge had ordered Khalil to be released, saying
it would be highly unusual for the government to continue
to detain a legal US resident who's unlikely to flee
and had hasn't been accused of violence. Joining me is
Immigration law expert Leon Fresco, a partner at Honda Knight,
Leon Khalil is out of detention. But is he out
(01:10):
of the woods.
Speaker 3 (01:11):
No, He's absolutely not out of the woods, because there
are so many different ways in which he can be
placed back in detention. The first would be for an
appellate court to place him back in detention under the
guys that his entire habeas proceeding. There's no jurisdiction for
the lower court judge to actually issue any of the
(01:32):
orders he's issuing. This is a big undecided issue in
the immigration system, which is do these types of habeas
claims have to be decided actually in the context of
the removal preceding itself, and not in a habeas claim,
but rather just what happens is you go to an
immigration judge, you say that the law is unconstitutional that
(01:55):
says that you can be banned from the country because
of foreign policy reasons. The immigrant just says they don't
have jurisdiction. Then the Board of Immigration Appeal says they
don't have jurisdiction, and only then you can make this
constitutional claim to a court of appeals as part of
a petition for review. So that's the argument the government's making,
(02:15):
and they actually have pretty strong statutory authority for this.
The problem is that could take years, and so the
question is will the Supreme Court say, look, you actually
can be detained for years while you make these kinds
of claims or does the court allow this kind of
habeas for this exact type of situation. So there's that,
(02:37):
But then there's a whole second issue, which is that
they're actually trying to deport in not just for this
calm to foreign policy reason, but they're also saying that
he lied on his green card application, and that in
and of itself justifies his detention and removal if they
can show that the lies on the green card application
(02:58):
or material and the lies were all about various associations
that he's had in the past that he did not
report when there was this question that says, please tell
me about any organizations that you've been a member of,
and he didn't put any of these organizations on his application,
and the question is are those omissions materials? And so
the lower court judge said that because there wasn't any
(03:20):
evidence that the government provided, they did not think that
detention and removal was based on that issue. That is
never used to justify detention and removal. But if an
appellate court used that either of those two issues are
sufficient to place him back in detention and ultimately removal,
(03:40):
then Khalil will be either redetained and ultimately removed and
so he's definitely not out of the woods.
Speaker 1 (03:47):
Yet can't the government bring up at any point that
you lied on your green court application?
Speaker 3 (03:53):
They absolutely can, and that's why it was kind of
remarkable what the district judge said. The district judge basically
said that this was a pretextual claim, and because he
viewed it as a pretextual claim, he wasn't going to
allow the government to keep Khalil in detention. There's a
lot of precarious parts about the lower court's order, but
that's the most precarious part, because there wasn't even a
(04:15):
dispute that the government has this authority to detain and
remove on the basis of these omissions. But the district said, look,
there wasn't any strong evidence that you've done this in
the past in this context, and so I'm going to
view this as pretextual and say that you are doing
this because of Mahmud Khalil's complaints about the war, you know,
(04:37):
between the Israelis and the Palestinians. And so that's kind
of a remarkable decision in terms of its far reaching authority.
And we're going to see if an appellate court tries
to rein that in he.
Speaker 1 (04:49):
Says he's going to continue his protests, and since his
release he's been doing just that. Is he hurting his
case in any way by continuing the pro chest.
Speaker 3 (05:00):
I definitely think now we're at the point where he's
gonna get all the negative presumptions in terms of his activity,
whether his activity is viewed in a way that's helpful
or harmful. It's just a matter now of the sort
of legal arguments in this case, which are Number one,
is the statute under which he's being detained so vague
(05:23):
that putting aside anything you think Mamood Khalil is doing,
it's just so vague. We just don't know what if
what you're leading is a protest in favor of the
Red Cross and you're saying give more money to the
Red Cross, if somebody just doesn't like that and detains you,
And so that's the real question here is is that
statute so vague that it can't be used for any purpose?
(05:45):
Or will that statute actually not be viewed as vague?
And then the second question, of course, is what is
the context in which you can challenge this? And so
it's possible that his entire habeas salad was completely unlawful
because you have to only challenge it as part of
the removal process. And then third the specific questions about
(06:06):
his green card application and whether he lied on it.
So there's just so many complications in this case that
for him to pull out the perfect straight flush here
would be an incredible legal accomplishment. But I definitely don't
think that he's doing himself and he favors fact wise
by doing all of the things he's doing.
Speaker 1 (06:28):
I want to turn to jilmoar Abrigo Garcia for a moment,
because a judge rule that he should be released as well,
explain why she said that he shouldn't be kept in
pre trial detention.
Speaker 3 (06:41):
Well, at the end of the day, the issue there is,
when you're doing a pre trial criminal detention, you're trying
to decide whether the person is going to be dangerous
and are they going to abscond from their proceedings, And
the issue there is, at least vis a v the
criminal proceedings, what the judge is basically saying is there
(07:05):
isn't enough evidence here that he's going to be violent enough. Member.
When you ask for bond from a criminal case, many
people get bond when they're in trial. It doesn't. So
there are people who are on murder cases who are
on bond during trial, and so it's very actually rare
that there's no bond at all that's issued. And so
(07:26):
they're saying, this guy doesn't have a history of actually
committing violent crimes. Number one and number two in terms
of being a flight risk. This guy's pretty famous and
notorious now, and so he doesn't actually want to flee
the country. His whole point is he's wanted to stay
in the country, and so he would be someone that
(07:48):
would be absconding. There wouldn't be a risk there, because
the whole point is this guy's just trying to remain
in the country. But in any case, the fact that
he's gotten this bond doesn't really change anything, because now
what happens is the immigration proceedings will continue because there's
sort of these two parallel things. There's a deportation process
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and there's a criminal process, and the government can always
elect to do the criminal process first and then do
the deportation process, but it doesn't have to do it
that way. And so if this judge says he can
go free on bond, then what the immigration folks will
do is say, well, we'll just then continue the immigration
process of trying to get him deported, and that part
(08:33):
of the process has to do with showing that conditions
in El Salvador have changed such that he would be
able to be sent there without being tortured, which is
itself going to be quite a tricky case because if
he's just going to be sent back to that same
Sea Coot facility, this might not be the easiest case
as opposed to he was going to be sent to
(08:54):
El Salvador and be freed, then okay, you can make
a better argument that the game related torture he was
worried about in the past isn't going to happen now.
But there's this whole separate claim about, well, the president
of Olsavador has called him a terrorist, and if he
puts him back in seacocks, are the conditions in the
seacot facility tends about the torture. So this case is
(09:18):
even messier than the Khalil case, and we'll just have
to wait and see. But the upshot is he's not
going to be free from detension one way or another. Again,
he's another one that will need the straight plush of
having both the criminal court free him from bond, and
an immigration court judge who will free him in a
bond proceeding as well.
Speaker 1 (09:40):
Yes, these cases are so complicated. I guess they're showing
the public how complicated the immigration laws are. Let's talk
about sanctuary cities and sanctuary states. Attorneys general in twenty states,
mostly Democratic led states, have sued the administration. Their claims
are sort of similar to other lawsuits that have sued
(10:01):
the administration for different things.
Speaker 3 (10:04):
Yes, what happened in the particular case that just got
decided earlier last week was that the Secretary of Transportation,
Sean Duffy, had tried to block transportation funds, which are
funds that the Congress sets for the purpose of giving
them to the states and to the cities for roads
and bridges and tunnels and that kind of thing. And
(10:25):
Secretary Duffi's claim was, why should sanctuary cities get this money.
They're just ruining everything, They're causing all these problems. I'm
going to give it to cities that actually will try
to improve their communities and not be sanctuary cities. Those
are his words, not mine. And so he said these
conditions that said you will have to make a certification
(10:48):
that you're not a sanctuary city in order to get
these funds. And so again, as you said, the states
and the city sued, and the federal court judge in
Rhode Island actually blocked this ability to say that you
can't get funding unless you say you're not a sanctuary
city because he said that the Congress didn't actually when
they issued these grants contemplate anything related to sanctuary cities
(11:12):
at all. And so the point is, maybe if the
Congress had said something about that, you could have an argument,
But the Congress just said, hey, based these grant allocations
on the transportation means of the states of the cities,
and the story. That's it. So there isn't any authority
for the Secretary of Transportation to add new requirements, especially
(11:34):
not ones that are related to immigrations.
Speaker 1 (11:37):
Leon are there any sanctuary cities or states because of this,
you know, pushed by the Trump administration that are retreating
from their positions.
Speaker 3 (11:48):
So there's a couple of problems. So in some states,
like for instance, if you say California, California actually has
a state law that requires all of the city in
California to be sanctuary cities as a state. They say
the states and the cities cannot cooperate with ICE vis
(12:09):
a ve giving either access to the jails or with
regard to detaining people and reporting them to ICE, and
so in those situations, there are plenty of cities in
California that are voicing a desire to cooperate with ICE,
but they're not able to because of state law. And
in a lot of big cities there's that problem. But
(12:30):
in other cities where the states are not constraining them,
you are seeing some efforts. It's sort of the same
thing you're seeing with the law firms and a little
bit with the universities, except that no university has yet
reached an agreement with the Trump administration. Where there are
some cities that are trying to broker deals with the
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Trump administration to get themselves off of the naughty list,
so to speak, but again none have been a But
there are some cities that are sort of lower profile
cities that are trying to broker those deals to get
themselves off this list, but again none have been finalized
and none have been announced.
Speaker 1 (13:12):
Coming up next, Trump gets an immigration win at the
Supreme Court. This is Bloomberg. There's been a lot of
publicity over federal immigration officials conducting large scale arrests outside
immigration courtrooms across the country. In many cases, immigrants are
arrested after a judge grants a government request to dismiss
(13:32):
their case, making them eligible for expedited removal. I've been
talking to immigration law expertly on Fresco of Holland and
Knight Leon is what the government is doing in these cases,
dismissing the case and then arresting them. Is it legal?
Speaker 3 (13:49):
Yes, it is legal. ICE can and the reason it
actually does choose the immigration court is because the individuals
have gone through security so they don't have any weapons.
They're not home, they're not in a school, they're not
in a place where it will be a major scene,
sort of a place where you wouldn't expect to be caught. Now,
(14:11):
the problem is if you go to immigration courts and
you apprehend people, people will stop going to immigration court,
which is not what you want. You want them to
go to court and then you want them to see
what happens after that. But now people are not going
to go to court. But that's the reason why ICE
is doing it. Now. The second thing that they're doing
as you said, is they're not just waiting to see
(14:31):
who loses and then apprehend them, which theoretically people would
understand that. They would say, look, if you get a
deportation order, why not actually place the person in deportation
custody at that point and deport them. Why let them
just go home and have to go get them some
other day and deport them. So I think people understand
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that point. But what's happening now is this second thing
where they're saying, we're going to actually cut your deportation
proceedings off. We're going to dismiss them, which in a
theory is a benefit to the foreign nationals. But what
they're doing is they're asking them to be dismissed because
they don't want to go through the two year process
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that these hearings sake. They want to put them in
something called expedited removal. The difference is is once you're
in expedited removal, you can be placed in mandatory detention.
There is no bond from that. And what expedited removal
is is if you've been in the country less than
two years, you actually don't need to go through the
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whole formal removal process. So long as you haven't articulated
a credible fear of being persecuted on the basis of
your race, religion, national origin, social group, or political opinions.
And so what happens is there's a been about five
six hundred thousand people who have been parolled under that
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Biden Cuban, Haitian, Nicaraguans Whalen parole, and also hundreds of
other thousands of people that have gotten temporary protected status,
and so some of those people actually don't have any
such claims for persecution. So what Ice is trying to
do is say, let's take some of those people just
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because they're very low hanging fruit, and when we terminate
their status, place them in expedite and removal and cut
off their two or three year immigration proceeding so that
we can place them in mandatory detention. And so it's
really just about that. And also remember that they've been
getting a lot of political pressure to have three thousand
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arrests per day, and so this is just again the
lowest hanging fruit way of getting those three thousand arrests
per day.
Speaker 1 (16:47):
So, speaking about immigration court and people not wanting to
show up for fear of arrest, let's talk about the
Alien Registration Act, which has not been used in seventy
five years. You know, it's still on the books.
Speaker 3 (17:01):
Though, correct, there's laws that require that if you haven't
registered with the federal government when you've entered the country,
you're actually committing a misdemean And so what happens is
the way it's being interpreted right now, and say they
tried to get it and enjoined and they failed. Meaning
the courts have actually recently and meaning this year, have
said that the Trump administration can enforce this registration requirement.
(17:25):
The Trump administration has said, look, if you entered with
a visa, then you've registered, that's fine. But if you
cross the border and nobody knows you're here, you just
crossed illegally. If we find you and you didn't register,
we can put you in jail. We can prosecute you
for failure to register. And what you're seeing now is
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because there's not enough space in immigration detention facilities to
place all of these people in the deportation process in
an immigration detention facility. The other way that these three
thousand arrests are being executed is that some of these
people are actually being placed in federal criminal prosecutions and
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proceedings to say, look, you just didn't register as someone
who's here undocumented, so they're actually going to prosecute you
for this crime. And the added benefit of that to
the Trump administration is by doing that, that sort of
creates another deterrent factor, another tactic that will make people
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who cross the border illegally hear very, very nervous about
remaining in the country, because in addition to just being deported,
now there's this other possibility that they can be criminally
prosecuted and criminally detained for failure to report their statistie.
But then one might argue, well, why don't they just
report their status, and certainly they should, but then the
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fear as well if they do that, does that make
them low hanging fruit for ice to come pick them
up anyway? And so that's the forty two situation that
those individuals are in. But the point is, if there's
any interaction at all that any person who crossed the
border has with police, it's very likely now that they're
going to be charged with this failure to register and
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be criminally prosecuted for it.
Speaker 1 (19:17):
DHS estimates that up to three point two million immigrants
are currently unregistered and would be affected by this. But
there are several cases, like five cases or so, and
a federal magistrate judge dismissed the criminal cases right.
Speaker 3 (19:34):
Well, some federal magistrate judges are saying that people are
not intentionally refusing to register, and so they're interpreting the
statute as saying that the only way you can actually
be prosecuted is if you knew you had this requirement
and intentionally refused to register. And so from that perspective,
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there's going to be some debate about, well, does ICE
need to sort of do a double cat, which is
catch the person, tell them to register, and only if
they don't register then you can prosecute them. And that's
going to be another of these issues that's going to
have to work their way up to the Supreme Court.
Is do you have some duty to know already that
(20:15):
you have to register or does the government have to
tell you you have to register and only then do
you have to register?
Speaker 1 (20:22):
And how much is the possible sentence?
Speaker 3 (20:24):
The maximum is six months in prison, but I don't
think anybody would actually get six months in prison. And
I think the larger issue is just that it's just
another way to when they arrest you. They can arrest you,
they can put you in the tension, separate you from
your family, and just that trauma that that whole process
creates is basically the reason for doing it.
Speaker 1 (20:45):
A lot of these tactics by the Trump administration are
to encourage illegal immigrants to self deport.
Speaker 3 (20:53):
Correct, that's the whole point of this. By creating the
various touch points in which one can be apprehended and
can eventually either be detained or prosecuted or deported or
otherwise inconvenience. There's now, by the way, new regulation that's
going to come out soon for the people that overstayed.
So those are not people that registered, but the people
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oversay that will find them each day and we'll see
if the courts allow that to happen. But that'll be
yet another checkpoint is if you get this gigantic bill
for hundreds of thousands of dollars for you know, every
day that you've been in the country and lawfully you
got to fined fifty dollars or something like that. And
so all of these are various touch points that they're
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trying to create to basically force people to self support
from the United States And let's.
Speaker 1 (21:39):
Turn to Harvard for a minute, because it's a little
confusing to me. What has the Trump administration tried to
do with regard to Harvard and its foreign students.
Speaker 3 (21:52):
From multiple things. The first attempt was just to say,
every school in America that wants to bring a fore
students into their school has to get an approval from
something called SEVP, the Student Exchange Visitor Program, which is
part of ICE Immigration and Customs Enforcement. And so once
you have that approval, you basically have the ability to
(22:14):
give these permission flips out. They're called I twenty forms
that gives a student that you've admitted to your school
the right to go to an embassy and ask for
a student visa. And so what Harvard did is Harvard,
like everyone else, gave out these I twenties and students
had visas and they were at Harvard. And so what
the Trump administration said is we wanted to terminate your
(22:38):
SEVP status, meaning put Harvard back into the position as
if it had never been given disapproval at all, like
if it was just a brand new university that can't
bring foreign students in. And this would have had two effects. One,
don't do students could have come in and gotten visas.
But number two, the students who are at Harvard would
(23:00):
immediately lose their ability to continue studying at Harvard because
every student who's here on a student visa has to
have what's called that quote unquote active status in the
Student Exchange Visitor Program in order to have lawful status.
And so what the Trump administration had said to those
students was, you have to transfer. You have to leave
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Harvard as student as possible and go to some other
school if you want to maintain your status. So Harvard
asks for an injunction, and they get an injunction or
they get a temporary restraining order, and now they have
an injunction that prevents the government from at the moment
revoking their status from the SEVP Student and Exchange Visitor Program.
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But that doesn't make them out of the woods quite yet,
because there's a separate issue, which is what about visas
for new students. And here the Trump administration actually did
something very powerful. If you remember the old travel ban,
and potentially people have talked about, you know, the Muslim
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ban or whatever else, and the COVID bans. That statue
I NA two twelve f that allows the president to
ban people. The President actually issued a ban for Harvard
and said that nobody who was applying for a visa
abroad from Harvard could actually get a visa. So he
issued a ban under that, and that's in this separate litigation.
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And the judge has that currently blocked for a couple
more days, but didn't want to extend that block quite
yet fully. And so Harvard's got two separate problems, which is,
they have this system, which at the moment, the district
court judges said they have to be allowed to remain
in the system, but they have this separate ban that
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may still be allowed to go into effect that actually
allows the federal government to ban anybody associated with Harvard
from getting visa time re enter or enter in the
first place the United States.
Speaker 1 (25:04):
And Harvard's got a lot more problems from the Trump
administration than these cases. Thanks so much, Leon, as always,
that's Leon Fresco of Honda Knight And in Supreme Court
news late this afternoon, a divided court lifted a Massachusetts
judges order that required the administration to give people ten
(25:26):
days notice and a chance to object before they're deported
to countries other than their home countries. The Trump administration
had made an emergency request, saying this order usurp presidential
authority and interfered with diplomatic efforts, and the court's six
conservative justices granted the administration's request without issuing an opinion
(25:49):
explaining their reasoning, but the decision to a scathing descent
from liberal Justice Sonya so to Mayor, who wrote that
the court's action exposes thousands to the risk of torture
or death. The court's two other liberal justices joined in
her descent, coming up Trump's judiciary picks this is Bloomberg.
(26:11):
Republican efforts to restrict the power of the courts ran
headlong into the power of the Senate Parliamentarian. In the
wake of the many federal court rulings that have stymied
the Trump agenda, Senate Republicans added a provision restricting the
power of judges to block federal government policies with injunctions
(26:32):
or restraining orders. It would require anyone seeking an injunction
to pay a fee that would be equal to the
costs and damages sustained by the federal government if it
were to ultimately win the case. But the Senate Parliamentarian
ruled that that provision does not comply with the Chamber's
Bird Rule, which essentially bars policy matters from being addressed
(26:54):
in the budget reconciliation process. Joining me is an expert
in the federal judiciary, Mary Carl Tobias, a professor at
the University of Richmond Law School. Carl, is it the
role of Congress to tell the judges how to run
their courtrooms?
Speaker 4 (27:09):
Well, it probably is, because there's a lot of possibilities
for the Congress to do that as opposed to the
courts doing it, And they can make rules that govern,
but by and large they defer to the Judicial Conference,
(27:32):
you know, the policy making body and its rules committees
to do that type of work. But if you look
at Title twenty eight USC, there are lots of provisions
they make for the fields courts, the district courts, their
procedures and their members and whether they have to live
in the district or the appeals court, all of that.
(27:54):
So there's a long tradition of that. At the same time,
as I think it's a sort of cooperative arrangement. And
so if the Judicial Conference or judges would be uncomfortable
with certain kinds of procedural requirements, they may be able
to convince Congress not to adopt those, and so I
think there is a pretty good relationship there. And I
(28:17):
know lots of judges are amenable to, you know, testifying
and that type of thing and working on the committees
that the Chief Justice appoints. So on this one, I
think the reason when people can differ as to who
really should should be doing this, and I think Congress
could do it if it wanted to, but it ought
to be consulting with the judges too, in their best
(28:40):
sense of that.
Speaker 1 (28:41):
The Parliamentarian said that the provision would be subject to
the Bird rule, so subject to a sixty vote threshold,
so that probably is going nowhere, yes.
Speaker 4 (28:53):
And I think that was an appropriate judgment that she
made in that context, because as I understand, it supposed
to be restricted to budgetary items, and it doesn't seem
like that's a budgetary item. So I think her call
on that was correct.
Speaker 1 (29:09):
Let's talk about in general about Trump's nominees to the
federal courts. Is he looking for young lawyers with experience
on issues that are important to the conservative movement, like abortion,
transgender rights, people who've worked in that area.
Speaker 4 (29:29):
Well to some extent. Yes, we don't have much to
go on so far. He started a little slowly, as
Carl Holt said in the New York Times when the
first group came out. But what we have is, I
think now two for the appeals courts nominees, you know,
this week, actually one of them will have a hearing,
(29:50):
the other one will be voted out of committee or
at least discussed. And then they're nine for the district courts,
and five of them, I believe for Florida have a
hearing on Wednesday. Already the four for the Missouri district
vacancies have had their hearing and they will be up
for a committee discussion and vote on Thursday. So there's
(30:13):
a lot of activity this week about Trump's nominees, and
I think it's fair to say that they are only
six of palet vacancies right now. Those first two are
clearly conservative, and one of them, Whitney Hermanndorff for the
sixth Circuit Tennessee vacancy clerk for three of the justices
(30:35):
and is right now in the Attorney General's office in Tennessee.
She had a strong hearing, I thought, and answered questions
pretty directly, and so she may get a committee vote
on Thursday. Then, as I understand it, Emil Bauvay for
the third Circuit New Jersey vacancy will be up on
(30:57):
the pan on Wednesday, So that'll be interesting to see.
Speaker 1 (31:01):
Are the nominees avoiding directly answering whether Biden won the
election to some extent?
Speaker 4 (31:09):
Yes, I mean especially I think there's been a lot
of writing about the Missouri nominees. Apparently almost all of
them were not as forthcoming as people might like about
January sixth, and so that was an interesting dynamic about
whether Biden had actually won the election, and that's about
(31:31):
all they would say is he was the president and
people were critical of them. Certainly the legal press was
that may be thrashed out then on Thursday when they're
up for discussion and vote.
Speaker 1 (31:43):
Some progressive advocacy groups have complained about the Senate Democrats
and the way they're not questioning these nominees aggressively enough,
not like the Republicans did when there were Democratic nominees,
and apparently only six of the panels ten Democrats posed
any questions of the first nominee. Are Democrats not taking
(32:07):
this seriously enough because they don't have the votes.
Speaker 4 (32:11):
Well, I did see some of that in the legal press.
And part of the problem, of course is they're in
a minority, and the committee line up is twelve Republicans
and ten Democrats, and people are spread fairly thin on
the committees, and so they may have had other commitments.
But I think it's a fair criticism to say it's
(32:34):
important to ask difficult questions in committee meetings and in hearing,
and I think they'll do better going forward. Certainly the
ranking members. Senator Durbin has been very straightforward and I
think asking lots of questions, as have a number of others.
(32:55):
But you're right there was I think one hearing where
a number of the Democrats either weren't there or didn't
ask questions.
Speaker 1 (33:03):
We've talked before about Republican Senator Kennedy, who often asked
questions basic legal questions of the nominees, and not only
does that question get a lot of hits on YouTube,
but at times he's caught judicial nominees not knowing some
basic concepts, and I'm wondering if Democrats should start doing that.
Speaker 4 (33:25):
Yes, I think that is a fair question, and I
think they've Democrats opposed some of them and Kennedy, to
his credit, I think, did with Trump one point zero nominees,
and I think was actually responsible for a couple of
them deciding not to go forward. We'll see if he's
(33:45):
going to do the same thing with these nominees this
time around, though, I would say in watching the Missouri nominees,
they all I think were people who had substantial experience
in the attorney General's off in that state, and I
think for the district court they would know their way
(34:06):
around those procedures, and we're familiar with them. I think
on that score they were pretty good. We'll see about
the Florida ones, but most of them are state sitting
state judges or want to magistrate judge in the federal system,
and that's what you want. I mean, the basis for nominating,
(34:27):
confirming somebody for the district bench is familiarity, right, and
competence the ability to move cases. So far, I think
people may disagree with the political views of some of
the district nominees, but they do have experience in litigating cases,
and so I think on the competence front, they probably
(34:50):
are relatively strong, and maybe stronger than one point zero
district nominees so far. But we haven't seen them all.
They're you know, thirty nine or so current vacancies that
need to be filled in the district level.
Speaker 1 (35:07):
Trump has put all his personal lawyers, the top personal
lawyers that defended him, in different positions in the administration.
And Emil Bovey has gotten a lot of criticism for
his handling of the Eric Adams case. And now he's
up for a seat on the Third Circuit.
Speaker 4 (35:26):
Yes, and I think Democrats have been and the legal
press have been pretty much opposed to his nomination because
of what happened with the Eric Adams case, and also
what happened at the Justice Department with the Eric Adams case.
(35:47):
Of course, the whole number of Southern District of New
York nominees, including Danielle Sessoon, who was the acting US
Attorney for the Southern District, they resigned rather than follow
the orders from Bouve, and he forced all of that.
And then in headquarters back in DC, he was instrumental
(36:09):
in dismantling the Public Integrity Unit basically which checks on
all of the prosecutions to be pursued around the country
to be sure that they're solid cases. And so his
involvement on those front has troubled certainly Democrats and probably
some Republicans.
Speaker 1 (36:29):
But does it seem like any Trump judicial nominee is
going to get through this committee and the Senate.
Speaker 4 (36:35):
Well, we'll see. We'll see how he does in the hearing,
and I would expect this also would be a test
for Democrats to rigorously question him because there are issues
that trouble them and I think may trouble some Republicans.
So we could see how he answers those questions. That
(36:57):
could tell us a lot weeks after that or so
maybe late July there would be discussion and vote in committee.
But you're right, as I said earlier, the twelve to
ten majority that the Republicans have make it difficult for
Democrats to do much about Trump's nominees. But this particular case,
(37:19):
they may well be able to make a strong case
based on very recent history that has been widely reported.
Indj at the highest level.
Speaker 1 (37:29):
Are any circuits going to be flipped because of these Trump.
Speaker 4 (37:35):
Nominees, Well, I think the third circuit would be I
don't know if flip is the right word, because I
think they're pretty evenly divided right now. But if they
were to fill the New Jersey seat and the Delaware
seat there would be a majority of members in active
service appointed by Republican presidents. They would have either one
(37:58):
or I think maybe two vote majority on that court.
But that's I think the only place as a first
circuit vacancy. There's the sixth circuit vacancy, where the Republican
appointees already have a majority. There's a California one. It
won't change that because it's a Republican appointee who's stepping
down or taking senior status, and so there are not
(38:20):
many opportunities right now. And it's interesting because I think
this is one of the longest periods that I think
I can remember where no judges assume senior status over
like the last two or three months. Very few.
Speaker 1 (38:34):
Well, we know why the judges appointed by Democrats are
holding out, but I'm not sure why the judges appointed
by Republicans are. Thanks so much, Carl. That's Professor Carl
Tobias of the University of Richmond Law School. And that's
it for this edition of the Bloomberg Law Show. Remember
you can always get the latest legal news on our
Bloomberg Law Podcast. You can find them on Apple Podcasts.
(38:55):
Spotify and at www dot bloomberg dot com, podcast Slash Law,
and remember to tune into The Bloomberg Law Show every
weeknight at ten pm Wall Street Time. I'm Jim Grosso
and you're listening to Bloomberg
This is Bloomberg Law with June Grosseo from Bloomberg Radio.
After more than three months in federal custody, Columbia University
graduate and activist Mahmoud Khalil was released from an iced
attention facility in Louisiana on Friday. He vowed to continue
the protests against Israel and the war in Gaza that
(00:24):
got him arrested in the Trump administration's crackdown on foreign
students who joined campus protests.
Speaker 2 (00:31):
The US government is funding this genocide and Columbia University
is investing in this genocide. This is what I was protesting.
This is what I would continue to protest with every
one of you.
Speaker 1 (00:48):
A federal judge had ordered Khalil to be released, saying
it would be highly unusual for the government to continue
to detain a legal US resident who's unlikely to flee
and had hasn't been accused of violence. Joining me is
Immigration law expert Leon Fresco, a partner at Honda Knight,
Leon Khalil is out of detention. But is he out
(01:10):
of the woods.
Speaker 3 (01:11):
No, He's absolutely not out of the woods, because there
are so many different ways in which he can be
placed back in detention. The first would be for an
appellate court to place him back in detention under the
guys that his entire habeas proceeding. There's no jurisdiction for
the lower court judge to actually issue any of the
(01:32):
orders he's issuing. This is a big undecided issue in
the immigration system, which is do these types of habeas
claims have to be decided actually in the context of
the removal preceding itself, and not in a habeas claim,
but rather just what happens is you go to an
immigration judge, you say that the law is unconstitutional that
(01:55):
says that you can be banned from the country because
of foreign policy reasons. The immigrant just says they don't
have jurisdiction. Then the Board of Immigration Appeal says they
don't have jurisdiction, and only then you can make this
constitutional claim to a court of appeals as part of
a petition for review. So that's the argument the government's making,
(02:15):
and they actually have pretty strong statutory authority for this.
The problem is that could take years, and so the
question is will the Supreme Court say, look, you actually
can be detained for years while you make these kinds
of claims or does the court allow this kind of
habeas for this exact type of situation. So there's that,
(02:37):
But then there's a whole second issue, which is that
they're actually trying to deport in not just for this
calm to foreign policy reason, but they're also saying that
he lied on his green card application, and that in
and of itself justifies his detention and removal if they
can show that the lies on the green card application
(02:58):
or material and the lies were all about various associations
that he's had in the past that he did not
report when there was this question that says, please tell
me about any organizations that you've been a member of,
and he didn't put any of these organizations on his application,
and the question is are those omissions materials? And so
the lower court judge said that because there wasn't any
(03:20):
evidence that the government provided, they did not think that
detention and removal was based on that issue. That is
never used to justify detention and removal. But if an
appellate court used that either of those two issues are
sufficient to place him back in detention and ultimately removal,
(03:40):
then Khalil will be either redetained and ultimately removed and
so he's definitely not out of the woods.
Speaker 1 (03:47):
Yet can't the government bring up at any point that
you lied on your green court application?
Speaker 3 (03:53):
They absolutely can, and that's why it was kind of
remarkable what the district judge said. The district judge basically
said that this was a pretextual claim, and because he
viewed it as a pretextual claim, he wasn't going to
allow the government to keep Khalil in detention. There's a
lot of precarious parts about the lower court's order, but
that's the most precarious part, because there wasn't even a
(04:15):
dispute that the government has this authority to detain and
remove on the basis of these omissions. But the district said, look,
there wasn't any strong evidence that you've done this in
the past in this context, and so I'm going to
view this as pretextual and say that you are doing
this because of Mahmud Khalil's complaints about the war, you know,
(04:37):
between the Israelis and the Palestinians. And so that's kind
of a remarkable decision in terms of its far reaching authority.
And we're going to see if an appellate court tries
to rein that in he.
Speaker 1 (04:49):
Says he's going to continue his protests, and since his
release he's been doing just that. Is he hurting his
case in any way by continuing the pro chest.
Speaker 3 (05:00):
I definitely think now we're at the point where he's
gonna get all the negative presumptions in terms of his activity,
whether his activity is viewed in a way that's helpful
or harmful. It's just a matter now of the sort
of legal arguments in this case, which are Number one,
is the statute under which he's being detained so vague
(05:23):
that putting aside anything you think Mamood Khalil is doing,
it's just so vague. We just don't know what if
what you're leading is a protest in favor of the
Red Cross and you're saying give more money to the
Red Cross, if somebody just doesn't like that and detains you,
And so that's the real question here is is that
statute so vague that it can't be used for any purpose?
(05:45):
Or will that statute actually not be viewed as vague?
And then the second question, of course, is what is
the context in which you can challenge this? And so
it's possible that his entire habeas salad was completely unlawful
because you have to only challenge it as part of
the removal process. And then third the specific questions about
(06:06):
his green card application and whether he lied on it.
So there's just so many complications in this case that
for him to pull out the perfect straight flush here
would be an incredible legal accomplishment. But I definitely don't
think that he's doing himself and he favors fact wise
by doing all of the things he's doing.
Speaker 1 (06:28):
I want to turn to jilmoar Abrigo Garcia for a moment,
because a judge rule that he should be released as well,
explain why she said that he shouldn't be kept in
pre trial detention.
Speaker 3 (06:41):
Well, at the end of the day, the issue there is,
when you're doing a pre trial criminal detention, you're trying
to decide whether the person is going to be dangerous
and are they going to abscond from their proceedings, And
the issue there is, at least vis a v the
criminal proceedings, what the judge is basically saying is there
(07:05):
isn't enough evidence here that he's going to be violent enough. Member.
When you ask for bond from a criminal case, many
people get bond when they're in trial. It doesn't. So
there are people who are on murder cases who are
on bond during trial, and so it's very actually rare
that there's no bond at all that's issued. And so
(07:26):
they're saying, this guy doesn't have a history of actually
committing violent crimes. Number one and number two in terms
of being a flight risk. This guy's pretty famous and
notorious now, and so he doesn't actually want to flee
the country. His whole point is he's wanted to stay
in the country, and so he would be someone that
(07:48):
would be absconding. There wouldn't be a risk there, because
the whole point is this guy's just trying to remain
in the country. But in any case, the fact that
he's gotten this bond doesn't really change anything, because now
what happens is the immigration proceedings will continue because there's
sort of these two parallel things. There's a deportation process
(08:10):
and there's a criminal process, and the government can always
elect to do the criminal process first and then do
the deportation process, but it doesn't have to do it
that way. And so if this judge says he can
go free on bond, then what the immigration folks will
do is say, well, we'll just then continue the immigration
process of trying to get him deported, and that part
(08:33):
of the process has to do with showing that conditions
in El Salvador have changed such that he would be
able to be sent there without being tortured, which is
itself going to be quite a tricky case because if
he's just going to be sent back to that same
Sea Coot facility, this might not be the easiest case
as opposed to he was going to be sent to
(08:54):
El Salvador and be freed, then okay, you can make
a better argument that the game related torture he was
worried about in the past isn't going to happen now.
But there's this whole separate claim about, well, the president
of Olsavador has called him a terrorist, and if he
puts him back in seacocks, are the conditions in the
seacot facility tends about the torture. So this case is
(09:18):
even messier than the Khalil case, and we'll just have
to wait and see. But the upshot is he's not
going to be free from detension one way or another. Again,
he's another one that will need the straight plush of
having both the criminal court free him from bond, and
an immigration court judge who will free him in a
bond proceeding as well.
Speaker 1 (09:40):
Yes, these cases are so complicated. I guess they're showing
the public how complicated the immigration laws are. Let's talk
about sanctuary cities and sanctuary states. Attorneys general in twenty states,
mostly Democratic led states, have sued the administration. Their claims
are sort of similar to other lawsuits that have sued
(10:01):
the administration for different things.
Speaker 3 (10:04):
Yes, what happened in the particular case that just got
decided earlier last week was that the Secretary of Transportation,
Sean Duffy, had tried to block transportation funds, which are
funds that the Congress sets for the purpose of giving
them to the states and to the cities for roads
and bridges and tunnels and that kind of thing. And
(10:25):
Secretary Duffi's claim was, why should sanctuary cities get this money.
They're just ruining everything, They're causing all these problems. I'm
going to give it to cities that actually will try
to improve their communities and not be sanctuary cities. Those
are his words, not mine. And so he said these
conditions that said you will have to make a certification
(10:48):
that you're not a sanctuary city in order to get
these funds. And so again, as you said, the states
and the city sued, and the federal court judge in
Rhode Island actually blocked this ability to say that you
can't get funding unless you say you're not a sanctuary
city because he said that the Congress didn't actually when
they issued these grants contemplate anything related to sanctuary cities
(11:12):
at all. And so the point is, maybe if the
Congress had said something about that, you could have an argument,
But the Congress just said, hey, based these grant allocations
on the transportation means of the states of the cities,
and the story. That's it. So there isn't any authority
for the Secretary of Transportation to add new requirements, especially
(11:34):
not ones that are related to immigrations.
Speaker 1 (11:37):
Leon are there any sanctuary cities or states because of this,
you know, pushed by the Trump administration that are retreating
from their positions.
Speaker 3 (11:48):
So there's a couple of problems. So in some states,
like for instance, if you say California, California actually has
a state law that requires all of the city in
California to be sanctuary cities as a state. They say
the states and the cities cannot cooperate with ICE vis
(12:09):
a ve giving either access to the jails or with
regard to detaining people and reporting them to ICE, and
so in those situations, there are plenty of cities in
California that are voicing a desire to cooperate with ICE,
but they're not able to because of state law. And
in a lot of big cities there's that problem. But
(12:30):
in other cities where the states are not constraining them,
you are seeing some efforts. It's sort of the same
thing you're seeing with the law firms and a little
bit with the universities, except that no university has yet
reached an agreement with the Trump administration. Where there are
some cities that are trying to broker deals with the
(12:54):
Trump administration to get themselves off of the naughty list,
so to speak, but again none have been a But
there are some cities that are sort of lower profile
cities that are trying to broker those deals to get
themselves off this list, but again none have been finalized
and none have been announced.
Speaker 1 (13:12):
Coming up next, Trump gets an immigration win at the
Supreme Court. This is Bloomberg. There's been a lot of
publicity over federal immigration officials conducting large scale arrests outside
immigration courtrooms across the country. In many cases, immigrants are
arrested after a judge grants a government request to dismiss
(13:32):
their case, making them eligible for expedited removal. I've been
talking to immigration law expertly on Fresco of Holland and
Knight Leon is what the government is doing in these cases,
dismissing the case and then arresting them. Is it legal?
Speaker 3 (13:49):
Yes, it is legal. ICE can and the reason it
actually does choose the immigration court is because the individuals
have gone through security so they don't have any weapons.
They're not home, they're not in a school, they're not
in a place where it will be a major scene,
sort of a place where you wouldn't expect to be caught. Now,
(14:11):
the problem is if you go to immigration courts and
you apprehend people, people will stop going to immigration court,
which is not what you want. You want them to
go to court and then you want them to see
what happens after that. But now people are not going
to go to court. But that's the reason why ICE
is doing it. Now. The second thing that they're doing
as you said, is they're not just waiting to see
(14:31):
who loses and then apprehend them, which theoretically people would
understand that. They would say, look, if you get a
deportation order, why not actually place the person in deportation
custody at that point and deport them. Why let them
just go home and have to go get them some
other day and deport them. So I think people understand
(14:54):
that point. But what's happening now is this second thing
where they're saying, we're going to actually cut your deportation
proceedings off. We're going to dismiss them, which in a
theory is a benefit to the foreign nationals. But what
they're doing is they're asking them to be dismissed because
they don't want to go through the two year process
(15:15):
that these hearings sake. They want to put them in
something called expedited removal. The difference is is once you're
in expedited removal, you can be placed in mandatory detention.
There is no bond from that. And what expedited removal
is is if you've been in the country less than
two years, you actually don't need to go through the
(15:36):
whole formal removal process. So long as you haven't articulated
a credible fear of being persecuted on the basis of
your race, religion, national origin, social group, or political opinions.
And so what happens is there's a been about five
six hundred thousand people who have been parolled under that
(15:56):
Biden Cuban, Haitian, Nicaraguans Whalen parole, and also hundreds of
other thousands of people that have gotten temporary protected status,
and so some of those people actually don't have any
such claims for persecution. So what Ice is trying to
do is say, let's take some of those people just
(16:17):
because they're very low hanging fruit, and when we terminate
their status, place them in expedite and removal and cut
off their two or three year immigration proceeding so that
we can place them in mandatory detention. And so it's
really just about that. And also remember that they've been
getting a lot of political pressure to have three thousand
(16:39):
arrests per day, and so this is just again the
lowest hanging fruit way of getting those three thousand arrests
per day.
Speaker 1 (16:47):
So, speaking about immigration court and people not wanting to
show up for fear of arrest, let's talk about the
Alien Registration Act, which has not been used in seventy
five years. You know, it's still on the books.
Speaker 3 (17:01):
Though, correct, there's laws that require that if you haven't
registered with the federal government when you've entered the country,
you're actually committing a misdemean And so what happens is
the way it's being interpreted right now, and say they
tried to get it and enjoined and they failed. Meaning
the courts have actually recently and meaning this year, have
said that the Trump administration can enforce this registration requirement.
(17:25):
The Trump administration has said, look, if you entered with
a visa, then you've registered, that's fine. But if you
cross the border and nobody knows you're here, you just
crossed illegally. If we find you and you didn't register,
we can put you in jail. We can prosecute you
for failure to register. And what you're seeing now is
(17:48):
because there's not enough space in immigration detention facilities to
place all of these people in the deportation process in
an immigration detention facility. The other way that these three
thousand arrests are being executed is that some of these
people are actually being placed in federal criminal prosecutions and
(18:08):
proceedings to say, look, you just didn't register as someone
who's here undocumented, so they're actually going to prosecute you
for this crime. And the added benefit of that to
the Trump administration is by doing that, that sort of
creates another deterrent factor, another tactic that will make people
(18:29):
who cross the border illegally hear very, very nervous about
remaining in the country, because in addition to just being deported,
now there's this other possibility that they can be criminally
prosecuted and criminally detained for failure to report their statistie.
But then one might argue, well, why don't they just
report their status, and certainly they should, but then the
(18:52):
fear as well if they do that, does that make
them low hanging fruit for ice to come pick them
up anyway? And so that's the forty two situation that
those individuals are in. But the point is, if there's
any interaction at all that any person who crossed the
border has with police, it's very likely now that they're
going to be charged with this failure to register and
(19:15):
be criminally prosecuted for it.
Speaker 1 (19:17):
DHS estimates that up to three point two million immigrants
are currently unregistered and would be affected by this. But
there are several cases, like five cases or so, and
a federal magistrate judge dismissed the criminal cases right.
Speaker 3 (19:34):
Well, some federal magistrate judges are saying that people are
not intentionally refusing to register, and so they're interpreting the
statute as saying that the only way you can actually
be prosecuted is if you knew you had this requirement
and intentionally refused to register. And so from that perspective,
(19:55):
there's going to be some debate about, well, does ICE
need to sort of do a double cat, which is
catch the person, tell them to register, and only if
they don't register then you can prosecute them. And that's
going to be another of these issues that's going to
have to work their way up to the Supreme Court.
Is do you have some duty to know already that
(20:15):
you have to register or does the government have to
tell you you have to register and only then do
you have to register?
Speaker 1 (20:22):
And how much is the possible sentence?
Speaker 3 (20:24):
The maximum is six months in prison, but I don't
think anybody would actually get six months in prison. And
I think the larger issue is just that it's just
another way to when they arrest you. They can arrest you,
they can put you in the tension, separate you from
your family, and just that trauma that that whole process
creates is basically the reason for doing it.
Speaker 1 (20:45):
A lot of these tactics by the Trump administration are
to encourage illegal immigrants to self deport.
Speaker 3 (20:53):
Correct, that's the whole point of this. By creating the
various touch points in which one can be apprehended and
can eventually either be detained or prosecuted or deported or
otherwise inconvenience. There's now, by the way, new regulation that's
going to come out soon for the people that overstayed.
So those are not people that registered, but the people
(21:14):
oversay that will find them each day and we'll see
if the courts allow that to happen. But that'll be
yet another checkpoint is if you get this gigantic bill
for hundreds of thousands of dollars for you know, every
day that you've been in the country and lawfully you
got to fined fifty dollars or something like that. And
so all of these are various touch points that they're
(21:34):
trying to create to basically force people to self support
from the United States And let's.
Speaker 1 (21:39):
Turn to Harvard for a minute, because it's a little
confusing to me. What has the Trump administration tried to
do with regard to Harvard and its foreign students.
Speaker 3 (21:52):
From multiple things. The first attempt was just to say,
every school in America that wants to bring a fore
students into their school has to get an approval from
something called SEVP, the Student Exchange Visitor Program, which is
part of ICE Immigration and Customs Enforcement. And so once
you have that approval, you basically have the ability to
(22:14):
give these permission flips out. They're called I twenty forms
that gives a student that you've admitted to your school
the right to go to an embassy and ask for
a student visa. And so what Harvard did is Harvard,
like everyone else, gave out these I twenties and students
had visas and they were at Harvard. And so what
the Trump administration said is we wanted to terminate your
(22:38):
SEVP status, meaning put Harvard back into the position as
if it had never been given disapproval at all, like
if it was just a brand new university that can't
bring foreign students in. And this would have had two effects. One,
don't do students could have come in and gotten visas.
But number two, the students who are at Harvard would
(23:00):
immediately lose their ability to continue studying at Harvard because
every student who's here on a student visa has to
have what's called that quote unquote active status in the
Student Exchange Visitor Program in order to have lawful status.
And so what the Trump administration had said to those
students was, you have to transfer. You have to leave
(23:21):
Harvard as student as possible and go to some other
school if you want to maintain your status. So Harvard
asks for an injunction, and they get an injunction or
they get a temporary restraining order, and now they have
an injunction that prevents the government from at the moment
revoking their status from the SEVP Student and Exchange Visitor Program.
(23:45):
But that doesn't make them out of the woods quite yet,
because there's a separate issue, which is what about visas
for new students. And here the Trump administration actually did
something very powerful. If you remember the old travel ban,
and potentially people have talked about, you know, the Muslim
(24:06):
ban or whatever else, and the COVID bans. That statue
I NA two twelve f that allows the president to
ban people. The President actually issued a ban for Harvard
and said that nobody who was applying for a visa
abroad from Harvard could actually get a visa. So he
issued a ban under that, and that's in this separate litigation.
(24:28):
And the judge has that currently blocked for a couple
more days, but didn't want to extend that block quite
yet fully. And so Harvard's got two separate problems, which is,
they have this system, which at the moment, the district
court judges said they have to be allowed to remain
in the system, but they have this separate ban that
(24:51):
may still be allowed to go into effect that actually
allows the federal government to ban anybody associated with Harvard
from getting visa time re enter or enter in the
first place the United States.
Speaker 1 (25:04):
And Harvard's got a lot more problems from the Trump
administration than these cases. Thanks so much, Leon, as always,
that's Leon Fresco of Honda Knight And in Supreme Court
news late this afternoon, a divided court lifted a Massachusetts
judges order that required the administration to give people ten
(25:26):
days notice and a chance to object before they're deported
to countries other than their home countries. The Trump administration
had made an emergency request, saying this order usurp presidential
authority and interfered with diplomatic efforts, and the court's six
conservative justices granted the administration's request without issuing an opinion
(25:49):
explaining their reasoning, but the decision to a scathing descent
from liberal Justice Sonya so to Mayor, who wrote that
the court's action exposes thousands to the risk of torture
or death. The court's two other liberal justices joined in
her descent, coming up Trump's judiciary picks this is Bloomberg.
(26:11):
Republican efforts to restrict the power of the courts ran
headlong into the power of the Senate Parliamentarian. In the
wake of the many federal court rulings that have stymied
the Trump agenda, Senate Republicans added a provision restricting the
power of judges to block federal government policies with injunctions
(26:32):
or restraining orders. It would require anyone seeking an injunction
to pay a fee that would be equal to the
costs and damages sustained by the federal government if it
were to ultimately win the case. But the Senate Parliamentarian
ruled that that provision does not comply with the Chamber's
Bird Rule, which essentially bars policy matters from being addressed
(26:54):
in the budget reconciliation process. Joining me is an expert
in the federal judiciary, Mary Carl Tobias, a professor at
the University of Richmond Law School. Carl, is it the
role of Congress to tell the judges how to run
their courtrooms?
Speaker 4 (27:09):
Well, it probably is, because there's a lot of possibilities
for the Congress to do that as opposed to the
courts doing it, And they can make rules that govern,
but by and large they defer to the Judicial Conference,
(27:32):
you know, the policy making body and its rules committees
to do that type of work. But if you look
at Title twenty eight USC, there are lots of provisions
they make for the fields courts, the district courts, their
procedures and their members and whether they have to live
in the district or the appeals court, all of that.
(27:54):
So there's a long tradition of that. At the same time,
as I think it's a sort of cooperative arrangement. And
so if the Judicial Conference or judges would be uncomfortable
with certain kinds of procedural requirements, they may be able
to convince Congress not to adopt those, and so I
think there is a pretty good relationship there. And I
(28:17):
know lots of judges are amenable to, you know, testifying
and that type of thing and working on the committees
that the Chief Justice appoints. So on this one, I
think the reason when people can differ as to who
really should should be doing this, and I think Congress
could do it if it wanted to, but it ought
to be consulting with the judges too, in their best
(28:40):
sense of that.
Speaker 1 (28:41):
The Parliamentarian said that the provision would be subject to
the Bird rule, so subject to a sixty vote threshold,
so that probably is going nowhere, yes.
Speaker 4 (28:53):
And I think that was an appropriate judgment that she
made in that context, because as I understand, it supposed
to be restricted to budgetary items, and it doesn't seem
like that's a budgetary item. So I think her call
on that was correct.
Speaker 1 (29:09):
Let's talk about in general about Trump's nominees to the
federal courts. Is he looking for young lawyers with experience
on issues that are important to the conservative movement, like abortion,
transgender rights, people who've worked in that area.
Speaker 4 (29:29):
Well to some extent. Yes, we don't have much to
go on so far. He started a little slowly, as
Carl Holt said in the New York Times when the
first group came out. But what we have is, I
think now two for the appeals courts nominees, you know,
this week, actually one of them will have a hearing,
(29:50):
the other one will be voted out of committee or
at least discussed. And then they're nine for the district courts,
and five of them, I believe for Florida have a
hearing on Wednesday. Already the four for the Missouri district
vacancies have had their hearing and they will be up
for a committee discussion and vote on Thursday. So there's
(30:13):
a lot of activity this week about Trump's nominees, and
I think it's fair to say that they are only
six of palet vacancies right now. Those first two are
clearly conservative, and one of them, Whitney Hermanndorff for the
sixth Circuit Tennessee vacancy clerk for three of the justices
(30:35):
and is right now in the Attorney General's office in Tennessee.
She had a strong hearing, I thought, and answered questions
pretty directly, and so she may get a committee vote
on Thursday. Then, as I understand it, Emil Bauvay for
the third Circuit New Jersey vacancy will be up on
(30:57):
the pan on Wednesday, So that'll be interesting to see.
Speaker 1 (31:01):
Are the nominees avoiding directly answering whether Biden won the
election to some extent?
Speaker 4 (31:09):
Yes, I mean especially I think there's been a lot
of writing about the Missouri nominees. Apparently almost all of
them were not as forthcoming as people might like about
January sixth, and so that was an interesting dynamic about
whether Biden had actually won the election, and that's about
(31:31):
all they would say is he was the president and
people were critical of them. Certainly the legal press was
that may be thrashed out then on Thursday when they're
up for discussion and vote.
Speaker 1 (31:43):
Some progressive advocacy groups have complained about the Senate Democrats
and the way they're not questioning these nominees aggressively enough,
not like the Republicans did when there were Democratic nominees,
and apparently only six of the panels ten Democrats posed
any questions of the first nominee. Are Democrats not taking
(32:07):
this seriously enough because they don't have the votes.
Speaker 4 (32:11):
Well, I did see some of that in the legal press.
And part of the problem, of course is they're in
a minority, and the committee line up is twelve Republicans
and ten Democrats, and people are spread fairly thin on
the committees, and so they may have had other commitments.
But I think it's a fair criticism to say it's
(32:34):
important to ask difficult questions in committee meetings and in hearing,
and I think they'll do better going forward. Certainly the
ranking members. Senator Durbin has been very straightforward and I
think asking lots of questions, as have a number of others.
(32:55):
But you're right there was I think one hearing where
a number of the Democrats either weren't there or didn't
ask questions.
Speaker 1 (33:03):
We've talked before about Republican Senator Kennedy, who often asked
questions basic legal questions of the nominees, and not only
does that question get a lot of hits on YouTube,
but at times he's caught judicial nominees not knowing some
basic concepts, and I'm wondering if Democrats should start doing that.
Speaker 4 (33:25):
Yes, I think that is a fair question, and I
think they've Democrats opposed some of them and Kennedy, to
his credit, I think, did with Trump one point zero nominees,
and I think was actually responsible for a couple of
them deciding not to go forward. We'll see if he's
(33:45):
going to do the same thing with these nominees this
time around, though, I would say in watching the Missouri nominees,
they all I think were people who had substantial experience
in the attorney General's off in that state, and I
think for the district court they would know their way
(34:06):
around those procedures, and we're familiar with them. I think
on that score they were pretty good. We'll see about
the Florida ones, but most of them are state sitting
state judges or want to magistrate judge in the federal system,
and that's what you want. I mean, the basis for nominating,
(34:27):
confirming somebody for the district bench is familiarity, right, and
competence the ability to move cases. So far, I think
people may disagree with the political views of some of
the district nominees, but they do have experience in litigating cases,
and so I think on the competence front, they probably
(34:50):
are relatively strong, and maybe stronger than one point zero
district nominees so far. But we haven't seen them all.
They're you know, thirty nine or so current vacancies that
need to be filled in the district level.
Speaker 1 (35:07):
Trump has put all his personal lawyers, the top personal
lawyers that defended him, in different positions in the administration.
And Emil Bovey has gotten a lot of criticism for
his handling of the Eric Adams case. And now he's
up for a seat on the Third Circuit.
Speaker 4 (35:26):
Yes, and I think Democrats have been and the legal
press have been pretty much opposed to his nomination because
of what happened with the Eric Adams case, and also
what happened at the Justice Department with the Eric Adams case.
(35:47):
Of course, the whole number of Southern District of New
York nominees, including Danielle Sessoon, who was the acting US
Attorney for the Southern District, they resigned rather than follow
the orders from Bouve, and he forced all of that.
And then in headquarters back in DC, he was instrumental
(36:09):
in dismantling the Public Integrity Unit basically which checks on
all of the prosecutions to be pursued around the country
to be sure that they're solid cases. And so his
involvement on those front has troubled certainly Democrats and probably
some Republicans.
Speaker 1 (36:29):
But does it seem like any Trump judicial nominee is
going to get through this committee and the Senate.
Speaker 4 (36:35):
Well, we'll see. We'll see how he does in the hearing,
and I would expect this also would be a test
for Democrats to rigorously question him because there are issues
that trouble them and I think may trouble some Republicans.
So we could see how he answers those questions. That
(36:57):
could tell us a lot weeks after that or so
maybe late July there would be discussion and vote in committee.
But you're right, as I said earlier, the twelve to
ten majority that the Republicans have make it difficult for
Democrats to do much about Trump's nominees. But this particular case,
(37:19):
they may well be able to make a strong case
based on very recent history that has been widely reported.
Indj at the highest level.
Speaker 1 (37:29):
Are any circuits going to be flipped because of these Trump.
Speaker 4 (37:35):
Nominees, Well, I think the third circuit would be I
don't know if flip is the right word, because I
think they're pretty evenly divided right now. But if they
were to fill the New Jersey seat and the Delaware
seat there would be a majority of members in active
service appointed by Republican presidents. They would have either one
(37:58):
or I think maybe two vote majority on that court.
But that's I think the only place as a first
circuit vacancy. There's the sixth circuit vacancy, where the Republican
appointees already have a majority. There's a California one. It
won't change that because it's a Republican appointee who's stepping
down or taking senior status, and so there are not
(38:20):
many opportunities right now. And it's interesting because I think
this is one of the longest periods that I think
I can remember where no judges assume senior status over
like the last two or three months. Very few.
Speaker 1 (38:34):
Well, we know why the judges appointed by Democrats are
holding out, but I'm not sure why the judges appointed
by Republicans are. Thanks so much, Carl. That's Professor Carl
Tobias of the University of Richmond Law School. And that's
it for this edition of the Bloomberg Law Show. Remember
you can always get the latest legal news on our
Bloomberg Law Podcast. You can find them on Apple Podcasts.
(38:55):
Spotify and at www dot bloomberg dot com, podcast Slash Law,
and remember to tune into The Bloomberg Law Show every
weeknight at ten pm Wall Street Time. I'm Jim Grosso
and you're listening to Bloomberg
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