March 17, 2025 • 37 mins
Immigration law expert Leon Fresco, a partner at Holland & Knight, discusses the questions surrounding the ICE arrest of a Palestinian activist because of his role in the student protests at Columbia. First Amendment law expert Caroline Mala Corbin, a professor at the University of Miami Law School, discusses the Supreme Court deciding to review a challenge to Colorado’s ban on conversion therapy. Former federal prosecutor Robert Mintz, a partner at McCarter & English, discusses the likelihood that the case against New York City Mayor Eric Adams, will be dropped permanently. June Grasso hosts.
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Speaker 1 (00:02):
This is Bloomberg Law with June Grosseol from Bloomberg Radio.
Speaker 2 (00:15):
Several protests in New York City over the arrest by
ICE agents of Mahmoud Khalil, a former Columbia grad student
who was the lead negotiator and spokesman during protests against
Israel on campus last spring.
Speaker 3 (00:30):
This is a.
Speaker 1 (00:30):
Movement, an anti war movement.
Speaker 3 (00:33):
We have sparked similar Gazza solidarity encampments across the nation
and even across the globe.
Speaker 2 (00:39):
Secretary of State Marco Rubio revoked Khalil's green card under
a rarely used provision of the immigration law that allows
for revocation when a foreigner's presence is detrimental to US
foreign policy.
Speaker 4 (00:54):
This is not about free speech. This is about people
that don't have a right to be in the United States.
To begin with, No one has a right to a student.
Speaker 1 (01:00):
No one has a right to a green card.
Speaker 2 (01:01):
By the way, New York federal Judge Jesse Furman has
blocked Khalil's deportation while he considers the case. Joining me
is immigration law expert Leon Fresco, a partner at Holland
and Knight. He was the head of the Office of
Immigration litigation in the Obama administration. Leon tell us about
the provision of the immigration law that the Trump administration
(01:23):
is using to try to deport Khalil.
Speaker 1 (01:26):
So, there is a statute, which is Title eight USC.
Twelve twenty seven, which lays out an entire list. It's
basically a menu of choices that the government can use
to say why they're deporting someone. And so if you
meet any of those grounds, you could be deported based
on one of those grounds. And so the ground that
the government has chosen is the one called foreign policies.
(01:49):
The exact word, say, an alien whose presence or activities
in the United States the Secretary of State has reasonable
ground to believe would have potentially serious adverse foreign policy
consequences for the United States is deportable. So what Secretary
Rubio is saying is that he has the sole, unreviewable
(02:11):
discretion to decide that any person who is not a
citizen of the United States can be deported if he
believes that their presence in the United States would have
potentially serious adverse foreign policy consequences, and he has decided
that this Mahmoud Khalil beats that criteria because of the
(02:32):
conduct that he committed in the university.
Speaker 2 (02:37):
So is it true that it's solely up to the
Secretary of State that there's no court review.
Speaker 1 (02:44):
Well, so this is where there's a debate right now.
There's a famous case that actually the sister who's now deceased,
the sister of President Trump, Mary and Trump Berry, when
she was a district court judge in nineteen ninety six,
said that that statute was not constitutional because it was
too vague, because it did not allow for an opportunity
(03:07):
for the non citizen to actually be heard and be
able to make any discussion about this. But then the
Third Circuit, which at that time had Judge Alito who's
now Justice Alito on it, actually vacated the judgment because
they had to go through the ordinary immigration process, meaning
a federal judge couldn't hijack that process, which is one
(03:29):
of the issues that Judge Furman is going to have
to deal with. This Can he hijack this and make
this analysis now or does it have to go through
the whole immigration process first, and then you can make
the challenge at the end if you still been't ordered deported.
So the point is we don't know yet if this
law will be ruled unconstitutional or not. The problem is
(03:54):
there was a similar law in the nineteen sixty two
case of Heiresiatis versus Sean, which talks about this concept
of you could deport lawful permanent residents aka Green card
holders if they were not just communists, they could have
been past communists, meaning if at any time in their
(04:14):
life they had ever espoused communism, you could deport them.
Even if they had ten US citizen children and a
US citizen spouse, et cetera. Didn't matter. And the Court
in Heresiata said, yep, if Congress makes a ground of
deportation and it's in a statue and it's law, we're
not going to declare that unconstitutional. You change it if
(04:35):
you don't like it, makes the Congress change the law.
And so the question will be whether this Supreme Court
in twenty twenty five, seventy five years later, thinks that
that's true, that there's no constraints around this ground of deportations.
Speaker 2 (04:49):
Before you get anywhere near the constitutional question, there's an
issue of jurisdiction that New York Judge Jesse furmanh has
to decide in this habeas corpus petition that Khalil's lawyers
have filed habeas, basically being a request that the judge
require the government to bring a person in custody before
(05:11):
the court. Because right now Khalil is being held in Louisiana,
more than one thousand miles away from where he was arrested.
Speaker 1 (05:19):
Obviously, there's going to be a larger discussion about whether
a habeas is even the appropriate mechanism for challenging these
kinds of decisions. But first we have to figure out
what's the right court to even make any of those
decisions in that's what we're fighting about now. And so
the question is would New York ever be the right
forum given that the detention facility for the people who
(05:42):
are detained in New York for immigration purposes is in
New Jersey. Number one, and then also number two that
at the moment that the person filed the habeas, which
was at four in the morning or whenever they filed it,
they were already detained in New Jersey. So the human
body had actually left New York and was detained in
New Jersey. Then after that the person is transferred to Louisiana.
(06:07):
And so the government is saying, well, since they're in Louisiana.
That's now where the habeas has to be filed. And
so now what the court has to debate is whether
that transfer to Louisiana was done for nefarious purposes to
evade jurisdiction in New York or New Jersey, or whether
it was done for a legitimate reason like that there
(06:30):
was no detention space in New Jersey. And so the
court is going to have I think a tough time
saying that the case should be in the Southern District
of New York because mister Macmoud Khalil was not in
New York when the habeas was filed, and there was
nothing irregular about having him in New Jersey because that's
where the immigration detention facility is for New York City.
(06:53):
So I do think it's possible that he will at
least be reassigned to New Jersey.
Speaker 2 (06:58):
You mentioned the issue of whether the transfer was done
for nefarious purposes. Khalil's lawyers called shipping him to Louisiana
a shell game by ice designed to take him out
of the New York Court's jurisdiction and isolate him far
from his lawyers and his family. I'll just mention that
Louisiana is in the Fifth Circuit, which is the most
(07:19):
conservative circuit court in the country.
Speaker 1 (07:22):
Certainly, there are some strong arguments that they're making that
the court is going to have to grapple with with
regard to whether the transfer to Louisiana serve some purpose
other than evasion of jurisdiction. And that is in a
twenty ten opinion in the Supreme Court about Guantanamo and
about transfers and habeas jurisdiction. So there is pretty good
(07:46):
case law that discusses what courts are supposed to look
at with regard to these transfers. There's a difference certainly
between Louisiana and New Jersey with regards to access to
the detayee and closest to the family, and even the
Third Circuit versus the Fifth Circuit. So those things all matter.
But the point is it may not end up mattering
with regard to this particular judge in New York City
(08:08):
because it seems difficult to figure out how he has
jurisdiction in New York City when the habeas was filed
when the person was in New Jersey.
Speaker 2 (08:17):
The Trump administration has said that Khalil is a threat
to national security. His lawyers say, he's just a protest
exercising his free speech rights. When does that issue get litigated.
Speaker 1 (08:29):
Here's what's interesting about this. Once you take this ground
of deportability, which simply asks the question as to whether
the Secretary of State has reasonable grounds to believe that
this human being's presence in the United States can cause
serious adverse foreign policy consequences. Once that's the issue, what
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the human being did is irrelevant in that sense, that
is not part of the determination. The determination if there
is going to be quote unquote a trial, which is
going to need to be a decision, by the way,
is there even a trial. The trial will just be
about whether the Secretary of State has reasonable ground to
(09:13):
believe that this would have foreign policy consequences. So you
would be an interesting thought experiment. Why couldn't Secretary Rubio
just get picked any country in the world, just pick
one and have them issue an affi. David say, yeah,
we would be very upset if the US kept this
person into the United States, and in that scenario, you've
(09:34):
met your burden significant adverse foreign policy consequences. If this
person remains in the United States, the court will have
to decide whether that's a constitutional statute, but it certainly
would have meant the factual threshold, which has nothing to
do with terrorism. In the end, the threshold in this
statute is just whether this human being's presence in the
(09:55):
United States would cause serious adverse foreign policy consequences for
the United State.
Speaker 2 (10:00):
Faith wouldn't a court be reluctant to substitute its opinion
for the Secretary of States in a matter of foreign policy.
Speaker 1 (10:09):
It seems very likely that that will be true, but
we will have to wait and see. And so I
think what the student is going to say is, Look,
the Secretary of State doesn't have any reasonable ground to
believe that my individual presence, as just one person is
going to affect US foreign policy? Why would they think that?
So that's going to be their argument, and maybe a
(10:31):
court is receptive to that argument.
Speaker 2 (10:34):
So Rubio said, this is not about free speech? Is
he right?
Speaker 1 (10:39):
The question is does the First Amendment provide a defense
to this deportation ground? So this is where the heresiatis
versus Shaughnessy case says that the First Amendment basically doesn't
apply to any deportation ground. At the end of the day,
it's not a defense to any of them, because these
(10:59):
issues involving non citizens are given such deference that when
the Congress actually passes the law and the President signs it,
the courts aren't going to overturn a ground of deportation.
They're just going to allow it to remain. But is
that even relevant to this ground of deportation? Because maybe
Rubio's doing it to placate that other countries so that
(11:21):
there aren't serious adverse foreign policy consequences, then why isn't
he within his grounds to do that? And so you
do that? Plus the jurisdictional issues, whether it's avieas and
whether it's challengeable at the beginning or whether you have
to wait till the end. Those are the players. That's
the real complication here.
Speaker 2 (11:41):
So many complications in this case. Thanks so much for
explaining them to us. Leon. That's Leon Fresco of Holland
and Knight. Coming up next, the Supreme Court is taking
up a case involving a ban on conversion therapy, and
that's causing some concern. I'm June Grosso. When you're listening
to Bloomberg, your parents.
Speaker 1 (12:01):
Sends you up for a program to fix you. Welcome
to the refuge. Program.
Speaker 5 (12:06):
You cannot be born a home sexual This is a lie.
Speaker 4 (12:09):
It's a choice.
Speaker 1 (12:10):
Come fake it till you make it. A come to man.
Speaker 6 (12:13):
You are not save yourself, Jared.
Speaker 1 (12:16):
God will not love you the way that you are.
Speaker 4 (12:19):
Is this what you love?
Speaker 6 (12:21):
Who's going to strike this demon down?
Speaker 2 (12:22):
The movie boy Erased is about the gay son of
ultra religious parents who sent a conversion therapy to change
his sexual identity. It's based on the memoir by Garret
Conley chronicling the abuses of that therapy. About half the
states now bar conversion therapy for minors, and all major
(12:43):
medical and mental health organizations have condemned the therapy as
unscientific and potentially dangerous for young people, increasing the risk
of depression, substance abuse, and suicide. And now the Supreme
Court has decided to take up a First Amendment check
challenge to Colorado's ban on conversion therapy from minors. A
(13:05):
licensed counselor who says she views her work as an
outgrowth of her Christian faith, claims the ban violates her
free speech rights. My guest is First Amendment law expert
Caroline Mallet Corbin, a professor at the University of Miami,
law school Caroline tell us about this case.
Speaker 3 (13:23):
The Supreme Court has granted THR meaning it will hear
a case involving a law that bans what is known
as conversion therapy. It's more official designation is sexual orientation
change efforts, and this is basically an attempt to make
(13:44):
gay kids straight, that's their historical origins. More specifically, the
law says that licensed counselors cannot practice conversion therapy on minors.
So if you want to undergo this so called counseling
as an adult, you are allowed to, but licensed practitioners
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of mental health cannot practice conversion therapy on minors. I
also note that there is an exemption for therapists engaged
in the practice of religious ministry. So the reason why
the law has banned conversion therapy is that it is unscientific, harmful,
(14:30):
and futile. So all the reputable medical associations have come
out against it for two reasons. One, you can't change
someone's sexual orientation, and second, studies show that it actually
hurts kids. So, for example, one study found that even
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holding constant other valuables, the children who have been subjected
to this therapy or twice as likely to think about
suicide and at least twice as likely to try suicide.
So states who have a long history of regulating the
medical profession and ensuring that practices conform with standard care
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decided this is not a practice we should allow in
our states, and Colorado is one of about twenty states
that therefore have forbidden this practice four licensed medical professions
as applied to kids children under eighteen.
Speaker 2 (15:38):
So what does the counselor's speech claim turn on?
Speaker 3 (15:42):
The legal question turns on whether you think of counseling
as conduct the practice of medicine, or you think of
counseling as pure speech. And this matters because the government
has a lot more viewway to regulate the practice of medicine,
(16:04):
even if it incidentally affects speech, then it does regulating speech. Generally,
the presumption is that if the government is regulating speech
because of its content or viewpoint, if it's trying to
tell people what they are allowed or not allowed to say,
that kind of content regulation is presumptively unconstitutional. Generally, we
(16:29):
don't want the government deciding what we're allowed to say
or what we're allowed to hear. So if this is
considered a regulation of speech, then it is problematic under
the free speech clause. It's not automatically unconstitutional, it's presumptively unconstitutional.
On the other hand, if it is viewed as the
(16:52):
regulation of medical practice the regulation of conduct, then the
state is going to have a much easier time showing
this is just ensuring that people who are licensed by
the state are meeting standards of care in the medical practice.
And this is something the states have always done regulate
(17:13):
what doctors can and can't do, and including folding into
that what they can and can't say as part of
their practice of medicine.
Speaker 2 (17:22):
The tense Circuit Court of Appeals, in a divided opinion
sided with Colorado, explain what their reasoning was.
Speaker 3 (17:30):
Okay, here's the thing. This is not the first time
court has ever encountered the question of how should we
think about regulation of medicine even if it involves speech.
And the backdrop to this case is the Supreme Court's
ruling about abortion counseling. So this case is about mental
(17:53):
health counseling. There is precedence on abortion counseling. By abortion counseling,
I mean the laws in many states that require doctors
before they provide an abortion to a woman requires the
doctors to read, often a state dictated script about the
(18:15):
dangers and perils of abortion and about the alternatives to abortion.
So just about every state requires that abortion providers say
this script or provide this information to women before they
are allowed to have an abortion. And doctors challenge those
(18:35):
regulations as violating their free speech. They said, you are
compelling us to say things that aren't necessarily accurate and
certainly not what we would normally say under our normal
practice of medicine. And the Supreme Court upheld the abortion
counseling on the grounds that it was not a direct
(18:56):
regulation of speech, but a regulation of the medical profession
that happened to affect speech. So basically, the precedent that
the Tenth Circuit relied on was precedent the Supreme Court
had created when ruling about abortion counseling. And so the
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Tenth Circuit to just said, listen, if the state telling
the doctors what they must say to women before they
have an abortion, if abortion counseling is merely the regulation
of the medical profession, then surely the regulation of a
kind of therapy in mental health counseling is also the
(19:41):
regulation of medicine that incidentally affects speech. That was the
argument that the Tenth Circuit made to support their claim
that this is not a direct attack on speech, it's
a regulation of medicine.
Speaker 2 (19:57):
In twenty twenty three, the Court with you used to
take a challenge to a similar ban in Washington State.
That was over the dessense of three justices, Conservatives Clarence Thomas,
Samuel Alito, and Brett Cavanaugh. So that means that they've
gotten at least one other justice on their side, because
they need four votes to take a case.
Speaker 3 (20:20):
Exactly right. So generally one of the major reasons that
the Supreme Court will decide to hear a case is
if there's a circuit split, and there is a circuit
split on this issue. So the Eleventh Circuit has held
that these bands violate free speech clause, and the Ninth
and tenth have held no, they are perfectly constitutional. And
(20:43):
there was a split even a couple of years ago.
But as you explain, the Supreme Court doesn't hear every
appeal that goes before it. They only hear an appeal
that at least four justices want to hear, And in
twenty twenty three they were not four, but this year
there are four, so that's enough to hear the case.
(21:05):
We don't know who the fourth is because they don't
announce who they are. I mean, we can guess that
the dissenters are three of them, but we don't know
who the fourth is. Now.
Speaker 2 (21:16):
I can't give one hundred percent guarantee on this, but
it's most likely that the fourth vote is one of
the other Conservative justices. Does the fact that it's the
Conservatives that want to take this case up tell you
that they're looking to reverse the Tenth Circuit, in other words,
strike down the ban on conversion therapy.
Speaker 3 (21:35):
Personally, I am always nervous when the Supreme Court grants
circ in a case involving a Conservative Christian who wants
to inflict some kind of harm on a vulnerable community
like the LGBT community, because I think the Supreme Court
is exceptionally receptive to the claims of conservative Christians, and
(21:59):
I think they real they don't show much care about
the consequences of the religious practices of conservative Christians and
how they harm those in the LGBT community. So I'm worried.
On the other hand, at this point, we know there
are four votes but we don't yet know if there
are five votes though that is not all that reassuring,
(22:24):
but at least it's not a completely foregone conclusion.
Speaker 2 (22:28):
Caroline, the licensed counselor, is being represented by the Alliance
Defending Freedom, which is a conservative Christian law firm and
advocacy group that has one case is at the Supreme
Court before in Colorado involving the baker who didn't want
to bake cakes for gay weddings and the web designer
who didn't want to design websites for gay couples, even
(22:51):
though no one had actually asked her to design a
website for a gay couple.
Speaker 3 (22:56):
Yeah, the group that's bringing this is a group that
regularly brings challenges to anti discrimination laws on behalf of
conservative Christians, and this is yet another one, and they've
had incredible success before the Supreme Court. They were also
the group that challenged California's attempt to require crisis pregnancy centers,
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which often pretend to be comprehensive medical centers when they're not.
They're just anti abortion places that try and lure women
into their doors to try and prevent them from having
an abortion. Anyhow, California tried to deal with this practice
by requiring crisis pregnancy centers to let people know that
(23:43):
they were not, in fact a licensed medical provider, even
though they often pretended to be one, and the Supreme
Court held that violated the crisis pregnancy center's pre speech
rights as well. So there is definitely a pattern of
cases brought claiming free speech violations of regulations that are
(24:05):
designed to protect from harm and to protect from discrimination,
and these are getting struck down in the name of
pre speech.
Speaker 2 (24:15):
The oral argument should be interesting, but we won't hear
them until the Supreme Court's next term, which starts in October.
Thanks Caroline. That's Professor Caroline Malik Corbin of the University
of Miami Law School. Coming up next on the Bloomberg
Law Show. It looks like New York City Mayor Eric
Adams is going to score a get out of jail
(24:35):
free card. I'm June Grosso and you're listening to Bloomberg.
New York City Mayor Eric Adams was one of four
Democratic mayors of sanctuary cities to testify before the House
Oversight Committee last week, but the criminal corruption case against
Adams took center stage as the mayor was grilled by
(24:56):
several Democratic lawmakers about the allegations that the Justice Department
agreed to dismiss the charges against Adams in return for
his helping the Trump administration with its efforts to deport immigrants.
California Representative Robert Garcia quized Adams.
Speaker 4 (25:15):
And Mayor Adams. I also want to be very clear,
are you selling out New Yorkers to save yourself from prosecution.
Speaker 6 (25:23):
There's no deal, no quick pro qual and I did
nothing wrong, and anything dealing with this case had a
deference to Judge Hoe, who's now addressing it. I'm going
to refer to his actions.
Speaker 4 (25:37):
Well, mister Mayor, it appears to me at least that
you are selling New Yorkers out. It appears that you
are working with Tom Homan, who is clearly clearly focused
on family separation and deportations.
Speaker 2 (25:49):
And now it appears that Adams will almost certainly score
a get out of jail free card. Paul Clement, the
former US Solicitor General appointed by Judge Dale as a
friend of the Court, has recommended the case against Adams
be dismissed permanently. Joining me is former federal prosecutor Robert Mintz,
(26:09):
a partner maccarter and English Bob explain why Judge Hoe
appointed Clement.
Speaker 5 (26:16):
Judge Dalejo took the very unusual step of appointing Paul Clement,
who had been the US Solicitor General during the George W.
Bush administration and has argued more than one hundred cases
before the Supreme Court, to give him advice with regard
to how to handle this dismissal motion, essentially based upon
(26:36):
his view that he was getting a one sided argument.
In other words, both the defense lawyer and the government
in this case were seeking to have the indictment dismissed,
and the judge wanted to hear the other side of
the argument. That's why he appointed Paul Clement to give
him advice as to what issues he should be considering,
(26:56):
really what his options were here with regard to this motion.
Speaker 2 (27:00):
Clement wrote a thirty three page brief. One important point
was that the executive branch is the one that chooses
when to prosecute and when not to prosecute.
Speaker 5 (27:12):
You're exactly right that Paul Clement did not really get
into the merits of these arguments from both sides. If
you recall, the acting Deputy Attorney General had ordered this
Southern District to dismiss the case, and there were a
series of prosecutors, including the acting US Attorney at the time,
who resigned rather than follow that order, saying that the
(27:33):
reasons for the dismissal were improper, that it was about
politics and not about the merits of the case. But ultimately,
mister Clement concluded that the judge here doesn't really have
much in the way of options. That essentially, if the
executive branch, meaning the prosecution and the Department of Justice,
choose to dismiss the case, there's not much the judge
(27:53):
can do about it. He pointed out that ultimately, even
if the court were to order the case to go forward,
could simply run out the clock, in other words, do
nothing with the case until there was what's called a
speedy trial violation, and then the defense would move to
dismiss the case. So short of appointing a special prosecutor,
which is rarely done, and it's possible that it's not
(28:15):
even constitutional to do it in this circumstance, mister Clement
recommended to the judge that there's really nothing for him
to do here but to grant the dismissal, and that's
why he didn't get into the back and forth between
the former Southern District prosecutors and the Department of Justice
as to the motivations behind this motion to dismiss the
(28:36):
indictment against Mayor Adam.
Speaker 2 (28:39):
Clement didn't discuss the evidence against Adams, the strength of
the charges against him, he wrote, private citizens and courts
can't force a prosecution, no matter how clearly someone has
violated a federal criminal statute. Of course, the Justice Department
didn't discuss the evidence when it first ordered the missile.
Speaker 5 (29:01):
If you remember, it was made explicit by the acting
Deputy US Attorney Emo Beauvat that this directive to dismiss
the case was not done on the merits. He expressly
said that he was not looking at either the evidence
or the legal theory behind the case. Now, in a
more recent filing by the Department of Justice, they did
(29:22):
mention the merits of the case. So they have shifted
slightly to argue in papers they filed before the court
that the legal arguments underpinning the bribery charges against Mayor Adams,
they said, was weak. That is something that is within
the scope of the Department of Justice certainly to consider
in deciding whether or not to continue to pursue the case,
(29:43):
but it really wasn't the driving force, and they again
reiterated the earlier statements that the prosecution of Mayor Adams
would interfere with his ability to cooperate with this administration
moved to crack down on illegal immigration, and that really,
as the basis to see, could dismiss the indictment at
this time. There is I.
Speaker 2 (30:04):
Believe, just one line in the thirty three pages where
Clement says there's evidence that suggests the decision to dismiss
the indictment was undertaken in bad faith. So that's one
line dropped there, referring to, you know, Emil Beauvey's order
to dismiss the indictment being in bad faith. Where does
(30:26):
the judge weigh that?
Speaker 5 (30:28):
Mister Clement did make mention that the evidence quoting here
suggests the decision to dismiss the indictment was undertaken in
bad face. The Department of Justice has made the argument
that the prosecution was politically motivated. Ultimately, Paul Clement decides
that the judge does not have to weigh in, and
it's unnecessary for him to determine whether or not the
(30:50):
case was politically motivated from the start, or whether or
not this dismissal was motivated by some kind of improper
political means. Meant said ultimately it was unnecessary for Judge
Hoe to settle that dispute under either view. He wrote,
there was little justification for allowing a potential reindictment of
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the mayor, and that's why he recommended to the judge
that he grant the motion to dismiss. But unlike what
was requested by the Department of Justice, he said that
that dismissal should be with prejudice, in other words, to
be dismissed in a way that the prosecution could never
bring the case down the road, and that would eliminate
(31:31):
the potential for critics of this decision to be able
to argue that the Department of Justice was trying to
have it both ways, was trying to have the case
dismissed now but leave the prospect of bringing that indictment
down the road in order to try to continue to
influence the mayor to cooperate with the Trump administration's immigration policies.
Speaker 2 (31:52):
Bob Clement wrote that if the charges weren't dismissed with prejudice,
meaning they couldn't be brought aga again, they would hang
like the proverbial sort of damocles over Adams. But if
you have a public official who's been charged with corruption
and the chargers are being dropped for political reasons, why
(32:13):
should he be given a free pass.
Speaker 5 (32:15):
I think what mister comment was getting at is that
one of the reasons that the Southern District Prosecutors objected
so strenuously to this dismissal is that they argue that
in meetings with the Defense Council there was discussions that
amounted to essentially a quid pro quo. In other words,
there were discussions about the mayor's ability to continue to
(32:36):
cooperate with the Trump administration in its immigration enforcement policies,
and whether or not the indictment and the trial that
would be upcoming would interfere in the ability to do that,
and in acknowledging that it would that obviously, any criminal
trial of an elected official is going to take away
their attention and their time from carrying out their public duties,
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that that was a reason to dismiss them at this time.
The Southern District prosecutor said that was essentially a quid
pro quot In agreement on the part of the mayor
to support the Trump administration in exchange for a dismissal
of the criminal charges, and the Department of Justice, I
think was responding to that by saying, we're not asking
for a dismissal that is permanent. We're not asking to
(33:20):
bar the prosecution forever. We're just saying it should be
dismissed at this time until after the election. And that's
why the Department of Justice was asking for the dismissal
without prejudice. But mister Clement said that the quid pro
quot that was hanging over this whole dismissal was something
that could only be eliminated if the dismissal was with prejudice,
(33:42):
and that way, the argument that the mayor would be
taking any actions in order to curry favor with the
Trump administration would be removed because there would be no
possibility that the Department of Justice could indict him down
the road if you failed to cooperate with the Trump
administration immigration policies.
Speaker 2 (33:59):
Mean talk about a get out of jail free card
for Adams because he was accused of agreeing to a
quid pro quote. Now the whole case is going to
be dropped against him. It doesn't seem like equal justice
under the law.
Speaker 5 (34:11):
Now. I think a lot of people are very troubled
by this whole scenario. Ultimately, mister Clement concluded that the
judge's hands were tied, that he really had no ability
to fight the dismissal. If the Department of Justice had decided,
almost for whatever reason, to dismiss the case, the judge
had no choice but to do that, but to follow
(34:33):
through and to dismiss the case. And he even advised
against an extensive judicial investigation into the Department of Justices actions.
In other words, he didn't even think it was necessary
for the judge to delve into the motivations behind the
Department of Justice to seek the dismissal, or likewise, the
motivation for the former Southern District prosecutors for refusing to
(34:57):
follow that directive. Mister Clement wrote into his submission to
the judge, when the publicly available information is sufficient to
inform judicial decision making, there are sound reasons to avoid
further inquiries. So he basically concluded that nothing good could
come of digging into this further, and that the judge
(35:18):
did not have discretion here to refuse to dismiss the case,
and there was really no reason to get into this
dispute between the former Southern District prosecutors and the Department
of Justice about who was right, who was wrong, who
was insubordinate, and who was acting properly with an ethical
guidelines and who was acting based upon political motivation.
Speaker 2 (35:40):
Judge Hoo doesn't have to accept Clement's recommendation, but does
it seem likely that he will.
Speaker 5 (35:46):
Absolutely. Judge ho is not legally bound to accept mister
Clement's recommendation, but he did independently seek out his guidance,
and it seems likely that he's going to follow the
recommendation of mister Clement, certainly to the extent that he
ultimately dismisses the case with prejudice. And I think again
that resolves the question of the Trump administration or the
(36:08):
Department of Justice using this dismissal as sort of a
cudgel hanging over the mayor's head to stay to the mayor,
in so many words, if you don't follow our directive
and if you don't cooperate with the immigration policies of
his administration, there's always the possibility that this indictment comes
back again that it gets reinstated and that you're once
(36:28):
again facing criminal charges. By dismissing the case with prejudice,
that threat is essentially eliminated.
Speaker 2 (36:35):
And it seems that Judge Hooe's decision is imminent because
he canceled a hearing that was scheduled for Friday, saying
he does not at this time believe that oral argument
is necessary. So most likely they'll be good news soon
for the mayor. Always a pleasure, Bob, thanks so much.
That's Robert Mints of McCarter and English. And that's it
(36:57):
for this edition of The Bloomberg Law Show. Remember you
can own always get the latest legal news on our
Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify,
and at www dot bloomberg dot com, slash podcast slash Law,
and remember to tune into The Bloomberg Law Show every
weeknight at ten pm Wall Street Time. I'm June Grosso
(37:18):
and you're listening to Bloomberg
This is Bloomberg Law with June Grosseol from Bloomberg Radio.
Speaker 2 (00:15):
Several protests in New York City over the arrest by
ICE agents of Mahmoud Khalil, a former Columbia grad student
who was the lead negotiator and spokesman during protests against
Israel on campus last spring.
Speaker 3 (00:30):
This is a.
Speaker 1 (00:30):
Movement, an anti war movement.
Speaker 3 (00:33):
We have sparked similar Gazza solidarity encampments across the nation
and even across the globe.
Speaker 2 (00:39):
Secretary of State Marco Rubio revoked Khalil's green card under
a rarely used provision of the immigration law that allows
for revocation when a foreigner's presence is detrimental to US
foreign policy.
Speaker 4 (00:54):
This is not about free speech. This is about people
that don't have a right to be in the United States.
To begin with, No one has a right to a student.
Speaker 1 (01:00):
No one has a right to a green card.
Speaker 2 (01:01):
By the way, New York federal Judge Jesse Furman has
blocked Khalil's deportation while he considers the case. Joining me
is immigration law expert Leon Fresco, a partner at Holland
and Knight. He was the head of the Office of
Immigration litigation in the Obama administration. Leon tell us about
the provision of the immigration law that the Trump administration
(01:23):
is using to try to deport Khalil.
Speaker 1 (01:26):
So, there is a statute, which is Title eight USC.
Twelve twenty seven, which lays out an entire list. It's
basically a menu of choices that the government can use
to say why they're deporting someone. And so if you
meet any of those grounds, you could be deported based
on one of those grounds. And so the ground that
the government has chosen is the one called foreign policies.
(01:49):
The exact word, say, an alien whose presence or activities
in the United States the Secretary of State has reasonable
ground to believe would have potentially serious adverse foreign policy
consequences for the United States is deportable. So what Secretary
Rubio is saying is that he has the sole, unreviewable
(02:11):
discretion to decide that any person who is not a
citizen of the United States can be deported if he
believes that their presence in the United States would have
potentially serious adverse foreign policy consequences, and he has decided
that this Mahmoud Khalil beats that criteria because of the
(02:32):
conduct that he committed in the university.
Speaker 2 (02:37):
So is it true that it's solely up to the
Secretary of State that there's no court review.
Speaker 1 (02:44):
Well, so this is where there's a debate right now.
There's a famous case that actually the sister who's now deceased,
the sister of President Trump, Mary and Trump Berry, when
she was a district court judge in nineteen ninety six,
said that that statute was not constitutional because it was
too vague, because it did not allow for an opportunity
(03:07):
for the non citizen to actually be heard and be
able to make any discussion about this. But then the
Third Circuit, which at that time had Judge Alito who's
now Justice Alito on it, actually vacated the judgment because
they had to go through the ordinary immigration process, meaning
a federal judge couldn't hijack that process, which is one
(03:29):
of the issues that Judge Furman is going to have
to deal with. This Can he hijack this and make
this analysis now or does it have to go through
the whole immigration process first, and then you can make
the challenge at the end if you still been't ordered deported.
So the point is we don't know yet if this
law will be ruled unconstitutional or not. The problem is
(03:54):
there was a similar law in the nineteen sixty two
case of Heiresiatis versus Sean, which talks about this concept
of you could deport lawful permanent residents aka Green card
holders if they were not just communists, they could have
been past communists, meaning if at any time in their
(04:14):
life they had ever espoused communism, you could deport them.
Even if they had ten US citizen children and a
US citizen spouse, et cetera. Didn't matter. And the Court
in Heresiata said, yep, if Congress makes a ground of
deportation and it's in a statue and it's law, we're
not going to declare that unconstitutional. You change it if
(04:35):
you don't like it, makes the Congress change the law.
And so the question will be whether this Supreme Court
in twenty twenty five, seventy five years later, thinks that
that's true, that there's no constraints around this ground of deportations.
Speaker 2 (04:49):
Before you get anywhere near the constitutional question, there's an
issue of jurisdiction that New York Judge Jesse furmanh has
to decide in this habeas corpus petition that Khalil's lawyers
have filed habeas, basically being a request that the judge
require the government to bring a person in custody before
(05:11):
the court. Because right now Khalil is being held in Louisiana,
more than one thousand miles away from where he was arrested.
Speaker 1 (05:19):
Obviously, there's going to be a larger discussion about whether
a habeas is even the appropriate mechanism for challenging these
kinds of decisions. But first we have to figure out
what's the right court to even make any of those
decisions in that's what we're fighting about now. And so
the question is would New York ever be the right
forum given that the detention facility for the people who
(05:42):
are detained in New York for immigration purposes is in
New Jersey. Number one, and then also number two that
at the moment that the person filed the habeas, which
was at four in the morning or whenever they filed it,
they were already detained in New Jersey. So the human
body had actually left New York and was detained in
New Jersey. Then after that the person is transferred to Louisiana.
(06:07):
And so the government is saying, well, since they're in Louisiana.
That's now where the habeas has to be filed. And
so now what the court has to debate is whether
that transfer to Louisiana was done for nefarious purposes to
evade jurisdiction in New York or New Jersey, or whether
it was done for a legitimate reason like that there
(06:30):
was no detention space in New Jersey. And so the
court is going to have I think a tough time
saying that the case should be in the Southern District
of New York because mister Macmoud Khalil was not in
New York when the habeas was filed, and there was
nothing irregular about having him in New Jersey because that's
where the immigration detention facility is for New York City.
(06:53):
So I do think it's possible that he will at
least be reassigned to New Jersey.
Speaker 2 (06:58):
You mentioned the issue of whether the transfer was done
for nefarious purposes. Khalil's lawyers called shipping him to Louisiana
a shell game by ice designed to take him out
of the New York Court's jurisdiction and isolate him far
from his lawyers and his family. I'll just mention that
Louisiana is in the Fifth Circuit, which is the most
(07:19):
conservative circuit court in the country.
Speaker 1 (07:22):
Certainly, there are some strong arguments that they're making that
the court is going to have to grapple with with
regard to whether the transfer to Louisiana serve some purpose
other than evasion of jurisdiction. And that is in a
twenty ten opinion in the Supreme Court about Guantanamo and
about transfers and habeas jurisdiction. So there is pretty good
(07:46):
case law that discusses what courts are supposed to look
at with regard to these transfers. There's a difference certainly
between Louisiana and New Jersey with regards to access to
the detayee and closest to the family, and even the
Third Circuit versus the Fifth Circuit. So those things all matter.
But the point is it may not end up mattering
with regard to this particular judge in New York City
(08:08):
because it seems difficult to figure out how he has
jurisdiction in New York City when the habeas was filed
when the person was in New Jersey.
Speaker 2 (08:17):
The Trump administration has said that Khalil is a threat
to national security. His lawyers say, he's just a protest
exercising his free speech rights. When does that issue get litigated.
Speaker 1 (08:29):
Here's what's interesting about this. Once you take this ground
of deportability, which simply asks the question as to whether
the Secretary of State has reasonable grounds to believe that
this human being's presence in the United States can cause
serious adverse foreign policy consequences. Once that's the issue, what
(08:52):
the human being did is irrelevant in that sense, that
is not part of the determination. The determination if there
is going to be quote unquote a trial, which is
going to need to be a decision, by the way,
is there even a trial. The trial will just be
about whether the Secretary of State has reasonable ground to
(09:13):
believe that this would have foreign policy consequences. So you
would be an interesting thought experiment. Why couldn't Secretary Rubio
just get picked any country in the world, just pick
one and have them issue an affi. David say, yeah,
we would be very upset if the US kept this
person into the United States, and in that scenario, you've
(09:34):
met your burden significant adverse foreign policy consequences. If this
person remains in the United States, the court will have
to decide whether that's a constitutional statute, but it certainly
would have meant the factual threshold, which has nothing to
do with terrorism. In the end, the threshold in this
statute is just whether this human being's presence in the
(09:55):
United States would cause serious adverse foreign policy consequences for
the United State.
Speaker 2 (10:00):
Faith wouldn't a court be reluctant to substitute its opinion
for the Secretary of States in a matter of foreign policy.
Speaker 1 (10:09):
It seems very likely that that will be true, but
we will have to wait and see. And so I
think what the student is going to say is, Look,
the Secretary of State doesn't have any reasonable ground to
believe that my individual presence, as just one person is
going to affect US foreign policy? Why would they think that?
So that's going to be their argument, and maybe a
(10:31):
court is receptive to that argument.
Speaker 2 (10:34):
So Rubio said, this is not about free speech? Is
he right?
Speaker 1 (10:39):
The question is does the First Amendment provide a defense
to this deportation ground? So this is where the heresiatis
versus Shaughnessy case says that the First Amendment basically doesn't
apply to any deportation ground. At the end of the day,
it's not a defense to any of them, because these
(10:59):
issues involving non citizens are given such deference that when
the Congress actually passes the law and the President signs it,
the courts aren't going to overturn a ground of deportation.
They're just going to allow it to remain. But is
that even relevant to this ground of deportation? Because maybe
Rubio's doing it to placate that other countries so that
(11:21):
there aren't serious adverse foreign policy consequences, then why isn't
he within his grounds to do that? And so you
do that? Plus the jurisdictional issues, whether it's avieas and
whether it's challengeable at the beginning or whether you have
to wait till the end. Those are the players. That's
the real complication here.
Speaker 2 (11:41):
So many complications in this case. Thanks so much for
explaining them to us. Leon. That's Leon Fresco of Holland
and Knight. Coming up next, the Supreme Court is taking
up a case involving a ban on conversion therapy, and
that's causing some concern. I'm June Grosso. When you're listening
to Bloomberg, your parents.
Speaker 1 (12:01):
Sends you up for a program to fix you. Welcome
to the refuge. Program.
Speaker 5 (12:06):
You cannot be born a home sexual This is a lie.
Speaker 4 (12:09):
It's a choice.
Speaker 1 (12:10):
Come fake it till you make it. A come to man.
Speaker 6 (12:13):
You are not save yourself, Jared.
Speaker 1 (12:16):
God will not love you the way that you are.
Speaker 4 (12:19):
Is this what you love?
Speaker 6 (12:21):
Who's going to strike this demon down?
Speaker 2 (12:22):
The movie boy Erased is about the gay son of
ultra religious parents who sent a conversion therapy to change
his sexual identity. It's based on the memoir by Garret
Conley chronicling the abuses of that therapy. About half the
states now bar conversion therapy for minors, and all major
(12:43):
medical and mental health organizations have condemned the therapy as
unscientific and potentially dangerous for young people, increasing the risk
of depression, substance abuse, and suicide. And now the Supreme
Court has decided to take up a First Amendment check
challenge to Colorado's ban on conversion therapy from minors. A
(13:05):
licensed counselor who says she views her work as an
outgrowth of her Christian faith, claims the ban violates her
free speech rights. My guest is First Amendment law expert
Caroline Mallet Corbin, a professor at the University of Miami,
law school Caroline tell us about this case.
Speaker 3 (13:23):
The Supreme Court has granted THR meaning it will hear
a case involving a law that bans what is known
as conversion therapy. It's more official designation is sexual orientation
change efforts, and this is basically an attempt to make
(13:44):
gay kids straight, that's their historical origins. More specifically, the
law says that licensed counselors cannot practice conversion therapy on minors.
So if you want to undergo this so called counseling
as an adult, you are allowed to, but licensed practitioners
(14:08):
of mental health cannot practice conversion therapy on minors. I
also note that there is an exemption for therapists engaged
in the practice of religious ministry. So the reason why
the law has banned conversion therapy is that it is unscientific, harmful,
(14:30):
and futile. So all the reputable medical associations have come
out against it for two reasons. One, you can't change
someone's sexual orientation, and second, studies show that it actually
hurts kids. So, for example, one study found that even
(14:55):
holding constant other valuables, the children who have been subjected
to this therapy or twice as likely to think about
suicide and at least twice as likely to try suicide.
So states who have a long history of regulating the
medical profession and ensuring that practices conform with standard care
(15:21):
decided this is not a practice we should allow in
our states, and Colorado is one of about twenty states
that therefore have forbidden this practice four licensed medical professions
as applied to kids children under eighteen.
Speaker 2 (15:38):
So what does the counselor's speech claim turn on?
Speaker 3 (15:42):
The legal question turns on whether you think of counseling
as conduct the practice of medicine, or you think of
counseling as pure speech. And this matters because the government
has a lot more viewway to regulate the practice of medicine,
(16:04):
even if it incidentally affects speech, then it does regulating speech. Generally,
the presumption is that if the government is regulating speech
because of its content or viewpoint, if it's trying to
tell people what they are allowed or not allowed to say,
that kind of content regulation is presumptively unconstitutional. Generally, we
(16:29):
don't want the government deciding what we're allowed to say
or what we're allowed to hear. So if this is
considered a regulation of speech, then it is problematic under
the free speech clause. It's not automatically unconstitutional, it's presumptively unconstitutional.
On the other hand, if it is viewed as the
(16:52):
regulation of medical practice the regulation of conduct, then the
state is going to have a much easier time showing
this is just ensuring that people who are licensed by
the state are meeting standards of care in the medical practice.
And this is something the states have always done regulate
(17:13):
what doctors can and can't do, and including folding into
that what they can and can't say as part of
their practice of medicine.
Speaker 2 (17:22):
The tense Circuit Court of Appeals, in a divided opinion
sided with Colorado, explain what their reasoning was.
Speaker 3 (17:30):
Okay, here's the thing. This is not the first time
court has ever encountered the question of how should we
think about regulation of medicine even if it involves speech.
And the backdrop to this case is the Supreme Court's
ruling about abortion counseling. So this case is about mental
(17:53):
health counseling. There is precedence on abortion counseling. By abortion counseling,
I mean the laws in many states that require doctors
before they provide an abortion to a woman requires the
doctors to read, often a state dictated script about the
(18:15):
dangers and perils of abortion and about the alternatives to abortion.
So just about every state requires that abortion providers say
this script or provide this information to women before they
are allowed to have an abortion. And doctors challenge those
(18:35):
regulations as violating their free speech. They said, you are
compelling us to say things that aren't necessarily accurate and
certainly not what we would normally say under our normal
practice of medicine. And the Supreme Court upheld the abortion
counseling on the grounds that it was not a direct
(18:56):
regulation of speech, but a regulation of the medical profession
that happened to affect speech. So basically, the precedent that
the Tenth Circuit relied on was precedent the Supreme Court
had created when ruling about abortion counseling. And so the
(19:18):
Tenth Circuit to just said, listen, if the state telling
the doctors what they must say to women before they
have an abortion, if abortion counseling is merely the regulation
of the medical profession, then surely the regulation of a
kind of therapy in mental health counseling is also the
(19:41):
regulation of medicine that incidentally affects speech. That was the
argument that the Tenth Circuit made to support their claim
that this is not a direct attack on speech, it's
a regulation of medicine.
Speaker 2 (19:57):
In twenty twenty three, the Court with you used to
take a challenge to a similar ban in Washington State.
That was over the dessense of three justices, Conservatives Clarence Thomas,
Samuel Alito, and Brett Cavanaugh. So that means that they've
gotten at least one other justice on their side, because
they need four votes to take a case.
Speaker 3 (20:20):
Exactly right. So generally one of the major reasons that
the Supreme Court will decide to hear a case is
if there's a circuit split, and there is a circuit
split on this issue. So the Eleventh Circuit has held
that these bands violate free speech clause, and the Ninth
and tenth have held no, they are perfectly constitutional. And
(20:43):
there was a split even a couple of years ago.
But as you explain, the Supreme Court doesn't hear every
appeal that goes before it. They only hear an appeal
that at least four justices want to hear, And in
twenty twenty three they were not four, but this year
there are four, so that's enough to hear the case.
(21:05):
We don't know who the fourth is because they don't
announce who they are. I mean, we can guess that
the dissenters are three of them, but we don't know
who the fourth is. Now.
Speaker 2 (21:16):
I can't give one hundred percent guarantee on this, but
it's most likely that the fourth vote is one of
the other Conservative justices. Does the fact that it's the
Conservatives that want to take this case up tell you
that they're looking to reverse the Tenth Circuit, in other words,
strike down the ban on conversion therapy.
Speaker 3 (21:35):
Personally, I am always nervous when the Supreme Court grants
circ in a case involving a Conservative Christian who wants
to inflict some kind of harm on a vulnerable community
like the LGBT community, because I think the Supreme Court
is exceptionally receptive to the claims of conservative Christians, and
(21:59):
I think they real they don't show much care about
the consequences of the religious practices of conservative Christians and
how they harm those in the LGBT community. So I'm worried.
On the other hand, at this point, we know there
are four votes but we don't yet know if there
are five votes though that is not all that reassuring,
(22:24):
but at least it's not a completely foregone conclusion.
Speaker 2 (22:28):
Caroline, the licensed counselor, is being represented by the Alliance
Defending Freedom, which is a conservative Christian law firm and
advocacy group that has one case is at the Supreme
Court before in Colorado involving the baker who didn't want
to bake cakes for gay weddings and the web designer
who didn't want to design websites for gay couples, even
(22:51):
though no one had actually asked her to design a
website for a gay couple.
Speaker 3 (22:56):
Yeah, the group that's bringing this is a group that
regularly brings challenges to anti discrimination laws on behalf of
conservative Christians, and this is yet another one, and they've
had incredible success before the Supreme Court. They were also
the group that challenged California's attempt to require crisis pregnancy centers,
(23:22):
which often pretend to be comprehensive medical centers when they're not.
They're just anti abortion places that try and lure women
into their doors to try and prevent them from having
an abortion. Anyhow, California tried to deal with this practice
by requiring crisis pregnancy centers to let people know that
(23:43):
they were not, in fact a licensed medical provider, even
though they often pretended to be one, and the Supreme
Court held that violated the crisis pregnancy center's pre speech
rights as well. So there is definitely a pattern of
cases brought claiming free speech violations of regulations that are
(24:05):
designed to protect from harm and to protect from discrimination,
and these are getting struck down in the name of
pre speech.
Speaker 2 (24:15):
The oral argument should be interesting, but we won't hear
them until the Supreme Court's next term, which starts in October.
Thanks Caroline. That's Professor Caroline Malik Corbin of the University
of Miami Law School. Coming up next on the Bloomberg
Law Show. It looks like New York City Mayor Eric
Adams is going to score a get out of jail
(24:35):
free card. I'm June Grosso and you're listening to Bloomberg.
New York City Mayor Eric Adams was one of four
Democratic mayors of sanctuary cities to testify before the House
Oversight Committee last week, but the criminal corruption case against
Adams took center stage as the mayor was grilled by
(24:56):
several Democratic lawmakers about the allegations that the Justice Department
agreed to dismiss the charges against Adams in return for
his helping the Trump administration with its efforts to deport immigrants.
California Representative Robert Garcia quized Adams.
Speaker 4 (25:15):
And Mayor Adams. I also want to be very clear,
are you selling out New Yorkers to save yourself from prosecution.
Speaker 6 (25:23):
There's no deal, no quick pro qual and I did
nothing wrong, and anything dealing with this case had a
deference to Judge Hoe, who's now addressing it. I'm going
to refer to his actions.
Speaker 4 (25:37):
Well, mister Mayor, it appears to me at least that
you are selling New Yorkers out. It appears that you
are working with Tom Homan, who is clearly clearly focused
on family separation and deportations.
Speaker 2 (25:49):
And now it appears that Adams will almost certainly score
a get out of jail free card. Paul Clement, the
former US Solicitor General appointed by Judge Dale as a
friend of the Court, has recommended the case against Adams
be dismissed permanently. Joining me is former federal prosecutor Robert Mintz,
(26:09):
a partner maccarter and English Bob explain why Judge Hoe
appointed Clement.
Speaker 5 (26:16):
Judge Dalejo took the very unusual step of appointing Paul Clement,
who had been the US Solicitor General during the George W.
Bush administration and has argued more than one hundred cases
before the Supreme Court, to give him advice with regard
to how to handle this dismissal motion, essentially based upon
(26:36):
his view that he was getting a one sided argument.
In other words, both the defense lawyer and the government
in this case were seeking to have the indictment dismissed,
and the judge wanted to hear the other side of
the argument. That's why he appointed Paul Clement to give
him advice as to what issues he should be considering,
(26:56):
really what his options were here with regard to this motion.
Speaker 2 (27:00):
Clement wrote a thirty three page brief. One important point
was that the executive branch is the one that chooses
when to prosecute and when not to prosecute.
Speaker 5 (27:12):
You're exactly right that Paul Clement did not really get
into the merits of these arguments from both sides. If
you recall, the acting Deputy Attorney General had ordered this
Southern District to dismiss the case, and there were a
series of prosecutors, including the acting US Attorney at the time,
who resigned rather than follow that order, saying that the
(27:33):
reasons for the dismissal were improper, that it was about
politics and not about the merits of the case. But ultimately,
mister Clement concluded that the judge here doesn't really have
much in the way of options. That essentially, if the
executive branch, meaning the prosecution and the Department of Justice,
choose to dismiss the case, there's not much the judge
(27:53):
can do about it. He pointed out that ultimately, even
if the court were to order the case to go forward,
could simply run out the clock, in other words, do
nothing with the case until there was what's called a
speedy trial violation, and then the defense would move to
dismiss the case. So short of appointing a special prosecutor,
which is rarely done, and it's possible that it's not
(28:15):
even constitutional to do it in this circumstance, mister Clement
recommended to the judge that there's really nothing for him
to do here but to grant the dismissal, and that's
why he didn't get into the back and forth between
the former Southern District prosecutors and the Department of Justice
as to the motivations behind this motion to dismiss the
(28:36):
indictment against Mayor Adam.
Speaker 2 (28:39):
Clement didn't discuss the evidence against Adams, the strength of
the charges against him, he wrote, private citizens and courts
can't force a prosecution, no matter how clearly someone has
violated a federal criminal statute. Of course, the Justice Department
didn't discuss the evidence when it first ordered the missile.
Speaker 5 (29:01):
If you remember, it was made explicit by the acting
Deputy US Attorney Emo Beauvat that this directive to dismiss
the case was not done on the merits. He expressly
said that he was not looking at either the evidence
or the legal theory behind the case. Now, in a
more recent filing by the Department of Justice, they did
(29:22):
mention the merits of the case. So they have shifted
slightly to argue in papers they filed before the court
that the legal arguments underpinning the bribery charges against Mayor Adams,
they said, was weak. That is something that is within
the scope of the Department of Justice certainly to consider
in deciding whether or not to continue to pursue the case,
(29:43):
but it really wasn't the driving force, and they again
reiterated the earlier statements that the prosecution of Mayor Adams
would interfere with his ability to cooperate with this administration
moved to crack down on illegal immigration, and that really,
as the basis to see, could dismiss the indictment at
this time. There is I.
Speaker 2 (30:04):
Believe, just one line in the thirty three pages where
Clement says there's evidence that suggests the decision to dismiss
the indictment was undertaken in bad faith. So that's one
line dropped there, referring to, you know, Emil Beauvey's order
to dismiss the indictment being in bad faith. Where does
(30:26):
the judge weigh that?
Speaker 5 (30:28):
Mister Clement did make mention that the evidence quoting here
suggests the decision to dismiss the indictment was undertaken in
bad face. The Department of Justice has made the argument
that the prosecution was politically motivated. Ultimately, Paul Clement decides
that the judge does not have to weigh in, and
it's unnecessary for him to determine whether or not the
(30:50):
case was politically motivated from the start, or whether or
not this dismissal was motivated by some kind of improper
political means. Meant said ultimately it was unnecessary for Judge
Hoe to settle that dispute under either view. He wrote,
there was little justification for allowing a potential reindictment of
(31:11):
the mayor, and that's why he recommended to the judge
that he grant the motion to dismiss. But unlike what
was requested by the Department of Justice, he said that
that dismissal should be with prejudice, in other words, to
be dismissed in a way that the prosecution could never
bring the case down the road, and that would eliminate
(31:31):
the potential for critics of this decision to be able
to argue that the Department of Justice was trying to
have it both ways, was trying to have the case
dismissed now but leave the prospect of bringing that indictment
down the road in order to try to continue to
influence the mayor to cooperate with the Trump administration's immigration policies.
Speaker 2 (31:52):
Bob Clement wrote that if the charges weren't dismissed with prejudice,
meaning they couldn't be brought aga again, they would hang
like the proverbial sort of damocles over Adams. But if
you have a public official who's been charged with corruption
and the chargers are being dropped for political reasons, why
(32:13):
should he be given a free pass.
Speaker 5 (32:15):
I think what mister comment was getting at is that
one of the reasons that the Southern District Prosecutors objected
so strenuously to this dismissal is that they argue that
in meetings with the Defense Council there was discussions that
amounted to essentially a quid pro quo. In other words,
there were discussions about the mayor's ability to continue to
(32:36):
cooperate with the Trump administration in its immigration enforcement policies,
and whether or not the indictment and the trial that
would be upcoming would interfere in the ability to do that,
and in acknowledging that it would that obviously, any criminal
trial of an elected official is going to take away
their attention and their time from carrying out their public duties,
(32:57):
that that was a reason to dismiss them at this time.
The Southern District prosecutor said that was essentially a quid
pro quot In agreement on the part of the mayor
to support the Trump administration in exchange for a dismissal
of the criminal charges, and the Department of Justice, I
think was responding to that by saying, we're not asking
for a dismissal that is permanent. We're not asking to
(33:20):
bar the prosecution forever. We're just saying it should be
dismissed at this time until after the election. And that's
why the Department of Justice was asking for the dismissal
without prejudice. But mister Clement said that the quid pro
quot that was hanging over this whole dismissal was something
that could only be eliminated if the dismissal was with prejudice,
(33:42):
and that way, the argument that the mayor would be
taking any actions in order to curry favor with the
Trump administration would be removed because there would be no
possibility that the Department of Justice could indict him down
the road if you failed to cooperate with the Trump
administration immigration policies.
Speaker 2 (33:59):
Mean talk about a get out of jail free card
for Adams because he was accused of agreeing to a
quid pro quote. Now the whole case is going to
be dropped against him. It doesn't seem like equal justice
under the law.
Speaker 5 (34:11):
Now. I think a lot of people are very troubled
by this whole scenario. Ultimately, mister Clement concluded that the
judge's hands were tied, that he really had no ability
to fight the dismissal. If the Department of Justice had decided,
almost for whatever reason, to dismiss the case, the judge
had no choice but to do that, but to follow
(34:33):
through and to dismiss the case. And he even advised
against an extensive judicial investigation into the Department of Justices actions.
In other words, he didn't even think it was necessary
for the judge to delve into the motivations behind the
Department of Justice to seek the dismissal, or likewise, the
motivation for the former Southern District prosecutors for refusing to
(34:57):
follow that directive. Mister Clement wrote into his submission to
the judge, when the publicly available information is sufficient to
inform judicial decision making, there are sound reasons to avoid
further inquiries. So he basically concluded that nothing good could
come of digging into this further, and that the judge
(35:18):
did not have discretion here to refuse to dismiss the case,
and there was really no reason to get into this
dispute between the former Southern District prosecutors and the Department
of Justice about who was right, who was wrong, who
was insubordinate, and who was acting properly with an ethical
guidelines and who was acting based upon political motivation.
Speaker 2 (35:40):
Judge Hoo doesn't have to accept Clement's recommendation, but does
it seem likely that he will.
Speaker 5 (35:46):
Absolutely. Judge ho is not legally bound to accept mister
Clement's recommendation, but he did independently seek out his guidance,
and it seems likely that he's going to follow the
recommendation of mister Clement, certainly to the extent that he
ultimately dismisses the case with prejudice. And I think again
that resolves the question of the Trump administration or the
(36:08):
Department of Justice using this dismissal as sort of a
cudgel hanging over the mayor's head to stay to the mayor,
in so many words, if you don't follow our directive
and if you don't cooperate with the immigration policies of
his administration, there's always the possibility that this indictment comes
back again that it gets reinstated and that you're once
(36:28):
again facing criminal charges. By dismissing the case with prejudice,
that threat is essentially eliminated.
Speaker 2 (36:35):
And it seems that Judge Hooe's decision is imminent because
he canceled a hearing that was scheduled for Friday, saying
he does not at this time believe that oral argument
is necessary. So most likely they'll be good news soon
for the mayor. Always a pleasure, Bob, thanks so much.
That's Robert Mints of McCarter and English. And that's it
(36:57):
for this edition of The Bloomberg Law Show. Remember you
can own always get the latest legal news on our
Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify,
and at www dot bloomberg dot com, slash podcast slash Law,
and remember to tune into The Bloomberg Law Show every
weeknight at ten pm Wall Street Time. I'm June Grosso
(37:18):
and you're listening to Bloomberg
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