This is Bloomberg Law with June Brusso from Bloomberg Radio. I'm ready to solve the problem. I really am massive changes, and I mean it's sincerely.
The migration crisis at the border has become one of President Joe Biden's biggest political liabilities, and he appears ready to deal. Biden says he's opened to massive changes in US border policy, including to asylum laws, in order to
secure a deal that would unlock Ukraine Aid. Biden expressed confidence the Senate could work out an emerging Bipartistan border compromise as soon as this week, and Republican senators like Lindsey Graham point to the Biden administration's concessions and say it's the best deal the GOP can get.
To those who think that if President Trump wins, which I hope he does, that we can get a better deal you want, you've got to get sixty votes to the United States Senate, So to my Republican friends, to get this kind of border security without granting a pathway to citizenship is really unheard of yet.
Even if the measure passes the Senate, it faces a rougher time in the House, where House Speaker Mike Johnson is facing intense pressure from ultra conservative Republicans, some who've threatened to oust him if he makes a deal with Biden.
I told the President what I have been saying for many months, and that is that we must have change at the border, substantive policy change.
And there's also been intervention by former President Donald Trump to quash any deal, leaving Biden questioning whether House Republicans would actually support immigration reform. That have to choose whether they want to solve a problem or keep weaponizing issue to square political points against the President. Joining me is Leon Fresco, the former head of the Office of Immigration Litigation at the Justice Department and a partner at hollanden Knight.
So let's start with the negotiations. Okay, So okay, No, I was going to say, Biden said he is seeking massive changes to US immigration rules.
So, but it's correct, the negotiations are proceeding and they're actually supposed to yield fruit. This week, Senator Schubert kept the Senate in session even though the House went away for recess, under the guys that this would be the legislation that would actually be brought to the floor for a vote. This week now. Having said that, no legislation has actually been introduced or distributed to other senators for reviews,
but we do know certain things. We do know that asylum as we currently know it, where people can go across the border and ask for asylum, would be banned. They would be prohibited from here on.
Now.
What would happen is that would be replaced with a system where if you don't get specific appointments at the ports of entry, and the negotiators are currently talking about five thousand appointments being available per day, then you're just banned. There's no ability to actually cross the border and get asylum. You get immediately removed back into Mexico if you try
to do that. But plus, even for those five thousand people who would have appointments at the ports of entry, they would have a much higher standard to be in order to actually be admitted into the country from these port of entry interviews, they would actually have to show that they have a reasonable fear of being persecuted on the basis of their race, religion, national origin, social group,
or political opinion. And right now there's an easier standard called credible fear, which is just a reasonable possibility of
a meritorious claim. Here, you're going to have to show a significant likelihood that you have a meritorious claim, and so that's going to raise the threshold, and usually at their higher threshold like that, you're talking about moving from about an eighty percent success rate to about a twenty to thirty percent success rate for people who will even make those claims along the ports of entry, So it
would be a significant change. The final question that still hasn't been decided is what will happen to the parole authority that President Biden currently has on their laws. And there's two kinds of parole authority, and this is what's kind of holding things up. There's the first kind, where President Biden has actually asked people from around the world to actually apply to enter legally here, so they have one right now for Ukraine, they have one for Venezuela, Cuba, Vicaragua, Haiti.
So the Republicans want to get rid of that kind of parole. But there's also the parole that happens when you ask for asylum at the port of entry, which is if you ask for asylum and you actually show that you now have this significant likelihood, what's going to be your status while you're waiting here to actually have your final trial. And so the Biden administration says, well, that has to be a parole. There's the only way
you can let someone legally in. And I think this is where they're getting caught up as the Republicans don't really have a good answer for what's that is somebody who cloes legally through the board and asked for asylum and meets the standard, how would they be allowed to remain here? I think the Republicans want those people to be in detention the whole time. And I think that's the current logjam.
Is the Biden administration really opposed to closing that because that's a significant number of people that are coming in.
Addition to everyone else.
Republican centators Lindsay Grahm and John Thune held a press conference last week complaining that the number of immigrants paroled into the United States has gone up dramatically under President Biden.
And so the answer is, there's discussions about allowing those things to exist, but capping them. And I think they're trying to determine what is an appropriate cap is at one hundred thous and paroles like that a year. Is it fifty thousand, is it two hundred thousand, and so they continue to debate that number. But I do think they're probably going to end up with some sort of cap there, or if not a cap, then something where the Congress has to vote on exceeding the cap something
like that. So those are the areas where they're going to have that discussion. So I think the answer is it's not where it's dead and they're not negotiating, but it's just a matter of trying to reach the correct answer there.
Tell me if this is correct.
I read that the Venezuelan migrants, unlike other migrant groups, they don't have ties to friends or family here, so they're arriving without resources or a sponsor.
Well, that's correct. The newest problem for almost everybody arriving at the border now is that people arriving at the border used to have some sort of plan for what to do when they arrived in America, and now those individuals, many of them arriving at the border, don't have a plan, which is why cities are having to spend a lot of resources on shelters and other things that it's needs
for these individuals. The deal with these paroles is those are for people who have some sponsor or ties, and the question is is that actually replacing illegal immigration, which would be a good thing, or is it just extra people that wouldn't have come, And so it's not doing anything, it's just adding extra people. And so the Democrats believe that those legal parole programs are actually causing illegal immigration to go down because it's having people who would otherwise
have come illegally come legally. But the Republicans are saying, no, no, no, The people who are coming are people without ties, and so these extra people coming with ties are just people who wouldn't have come but are now coming because there's a legal pathway for this. And so that's why we're seeing this debate.
Oklahoma Senator James Langford, who is the lead GOP negotiator, said it will be by far the most conservative border security bill in four decades, and Lindsey Graham said something similar like this is as good as we're ever gonna get.
Do you agree with that?
Correct? I think if there is a desire to actually get Democrats to actually vote for a bill that dramatically changes the way people can have paid asylum in the United States, this is the last and only chance for Republicans to get it, because you have the right atmospherics in play, where it's always that expression only Nixon can go to China, and so you want the other side. So you know, just like Clinton did welfare reform, or just like President Bush, did you know, no Child Left Behind?
Sort of always it's the opposite. And here you would want to buy an administration to actually be the one who would curtail asylum because of its Trump. Then all the Democrats will just oppose whatever Trump was gonna do. And so this is your best chance to actually get a sylum reform. And so that's why you hear Senator like for Senator Graham saying.
However, let's say this does pass the Senate, then it goes to the House. And already we're hearing Trump pressuring the House Speaker not to reach a bipartisan deal. He sat on social media last week, I do not think we should do a border deal at all unless we get everything needed to shut down the invasion of millions and millions of people.
And he's been talking to the House Speaker.
Yes, I think there's a different calculation in place for President Trump than there is with regard to the people at the border, which is for President Trump, he's sort of got these big votives, which is one, yes, obviously there's a desire to secure the border, but there's also a desire to put oneself in the best position possible to win election. And so if the border is not fake, President Trump would have that calculation, then it would be
the best possible situation for him to win. And so this is the problem, and this is where you're going to have a lot of dispute. And what I think is very interesting is you have Governor Greg Abbit of Texas and Senator John Cornyan, who are usually not people who come to the final deal on immigration. They're saying, look, as much as we'd like to give an advantage to President Trump an election in twenty twenty four, the problem is, how are we going to keep it so that another
three million people cross the border this year. Why wouldn't we actually take the effort to actually close that down. And so this is going to be quite the skirmish. And so if it passes the Senate, I think it's going to be very very difficult for the House to just ignore this, because then the House and the Republicans will start getting blamed for everything that's happening on the
border rather than President Biden. So if the Republicans really wanted President Biden to be the ones that would be blamed, that they would just shut this all down. But if something passes in the Senate, no doubt, the Republicans are going to be blamed in the House that they don't actually at least even give a vote for what the Senate produced.
Coming up next on the Bloomberg Law Show, I'll continue this conversation with immigration law expert Leon Fresco, and we'll talk about the escalating battle between Texas and the Biden administration over the border. The Biden administration won one fight today, as the Supreme Court said it can remove parts of a fence along the southern border built by Texas. The vote was five to four, with the Chief Justice John Roberts and Justice Amy Coney Barrett voting with the liberals.
In the case, I'm.
June Grosso and you're listening to Bloomberg. A divided Supreme Court has sided with the Biden administration, allowing US Border Patrol agents to remove razor wire fencing put up by Texas. Along the southern border, Texas officials installed twenty nine miles of barriers using barbed wire in the escalating fight between the state and the administration over illegal immigration at the border.
The sharp barriers have been a particular source of tension, with federal agents saying they have maimed and bloodied migrants and pose a hazard to US agents. Here's Texas Democratic Congressman Joaquim Castro back in July.
As far as the razor wire goes, not only is it in umade on the face of it, but it's also placed along the water in such a way that at times it's invisible to the people who are trying to cross.
The Supreme Court's emergency order vacates a ruling from the Fifth Circuit that said border patrol could only cut down the razor wire in an emergency. It was a five to four decision, with the Chief Justice and Justice Amy Coney Barrett siding with the Court's liberals. I've been speaking with immigration law expert Leon Fresco of Hollanda Knight. Are you surprised that the Supreme Court sided with the Biden administration here?
Well, it's not surprising from a purely legal personective, which is that at the end of the day, it would have been very tough to say that a stake can actually erect a razor wire fencing barrier along the Mexico border that the border patrol wouldn't be able to access only in the highest of emergencies. So from that standpoint,
that is not surprising. But it's interesting that it was a five to four decision and that if simply Justice amy Cony Barrett had switched to the other side, then this injunction would have remained in place, and Texas basically could have walled off a twenty nine mile wire square there along the Rio Grande River that the federal government wouldn't have been able to go in. And the idea was that Texas wanted to wire that off to deter foreign nationals from crossing the border.
So that means that four justices thought that Texas should have the authority to do this, or could it be that four justices thought the government didn't make out a strong enough case.
I mean, we don't know, because it's just an order, right.
The decision is just an order which says that the injunction that Texas had sought in the fifth circuit to prevent the federal government from coming in and cutting down the wire. That injunction was vacated, and we know that justice is Thomas, Alito, Gorsich, and Kavanaugh would have kept that injunction in place. Now, if you're going to keep an injunction in place, you're technically saying that you believe that that injunction was rightfully issued. Otherwise you have some
duty to vacate that injunction. And so from that standpoint, I do think it's fair to say that those four justices thought that because the fence was built on private land, that the federal government wouldn't have any authority to be able to cut down that fire fencing. But at the end of the day, that's very hard argument to make
when it's really controlling. I mean, if the intentive defence is to control the border, then you have to say, Okay, if that's the incentive defense, then that's the jurisdiction of
the Border patrol. You can't have it both ways. And it had been a fence to deal with livestock or something, then you could have that debate, well, can the Border Patrol arbitrarily say they need it for the border, But if the whole point of defense is to control the border, then you start having this problem of well, why is it the ultimate arbiter of that, the border patrol and.
Leon is the case continuing below.
Yes, this is the injunction phase of the case. Now we have to have sort of the merit part of this case, and so you got to go through it. It's always the case gets decided before it gets decided, and so in the first round, which is the turbo round, the government wins. But now we have the longer briefing where the district court has to decide who's right is it the state of Texas or is it the federal government. The Fifth Circuit has to decide who's right is it
the State of Texas or the federal government. And if the federal government wins in the Fifth Circuit, I don't think you'd see this case get to the Supreme Court. But if the State of Texas wins in the Fifth Circuit, then you would see this case come back to the Supreme Court for a final decision.
And LeAnn remind me, how did the Chief Justice rule in the Arizona case where was decided that states can't implement their own immigration laws.
The Chief Justice ruled in favor of the federal government, so he's been remarkably consistent there that states cannot take immigration laws into their own hands. So there's four votes for that. The question is who's the fifth vote in any of these given cases, And at least for this particular case, Justice Cony Barrett was the one who came along with Chief Justice Roberts and said, the State of Texas can't do this.
Does this cover the buoys too, or is it separate?
No, this does not cover the movie. So this is a specific case where the State of tech Texas actually sued. In this case, the State of Texas actually sued to get an injunction to prevent the Border Patrol from cutting the wire that the State of Texas was putting in. In the Booiz case, the federal government sued under the
Maritime and Rivers Act to get the Booies out. So that's a separate case which the Fifth Circuit actually just decided to rehear on Bank also where the Fifth Circuit panel had said that the water barriers were illegal, and that one is now going on Bank to the Fifth Circuit to decide whether the buoys can remain on the Rio Grande River or whether they have to be taken out.
Is it the same principle, so we'd see the same majority.
I think at the end of the day you probably will, because the buoys quite frankly, more than the fencing one, they're actually closer to the border because they're on the border, they're in the Rio grand River, so they're actually affecting our relations with Mexico, which is a very important fact.
But secondly, they are governed by this very clear Rivers and Maritime Act, which actually really places the jurisdiction there on the federal government to decide what kinds of barriers you can create in these areas, so states really can't take matters into their own hands. So I would expect at some point you would see these moooies be able to be eliminated from the Rio Grande River.
And lee on.
The Biden administration asked for this emergency order earlier in the month, so we've been waiting for it and waiting for it. I'm wondering what was going on behind the scenes.
I definitely think that perhaps the events that happened recently with the drowning in the river played some role here in getting Justice Cony Barrett to come across the finish line and join the liberal group to lift this injunction because the Border Patrol says that they couldn't get to the individuals, and the debate about whether the individuals whatever wouldn't have drowned had the Border Patrol been able to get to them. I definitely think those events really played
a role here. I can't imagine that wasn't the case, because otherwise we might have had a decision earlier.
Yeah, and the Solicitor General did tell the Justices in a filing that the limited exception that the Fifth Circuit gave to Border Patrol that it could only cut down the razor wire fencing in an emergency, posed a serious threat to human life because it didn't give border agents enough time to respond to medical emergencies such as the one where a woman and her two children had drowned on January twelfth.
So that was part of the argument.
And this is just one of several legal fights the administration is having with Texas. The federal government is suing Texas over a criminal law on immigration that the state has passed. It hasn't gone into effect yet. Tell us about that.
So then there's another law, which was called Senate Bill foro in Texas, which is trying to overturn what was the decision in twenty twelve in Arizona versus the United States which said that states couldn't take immigration enforcement into their own hands, but that was preended by federal law. Well, Texas is saying, well, maybe that could change it. I'll
give it the new composition of the Supreme Court. And so they passed the law that said that if they uncover some undocumented foreign nationals crossing into Texas or recently arrived in Texas, they could basically take that foreign national to the border and they would then be able to say, if you don't cross back into Mexico, we're going to prosecute you for a misdemeanor. And if the person refused to do that, it either re entered or something, they
could be prosecuted for a felony. And so that is basically prosecuting people for undocumented immigration, which is currently illegal under Arizona versus United States. And so the question is will this Supreme Court allow Texas to do that?
As a federal judge even ruled in that case yet.
Correct, there's been no decision on any request for an injunction yet on this.
Case, but we can sort of guess what's going to happen there. It's in Texas, so a Texas judge and then the Fifth Circuit.
I mean, we're going to end up with the Supreme Court deciding one way or another on this injunction. But until we get there with it's going to be quite a rollercoaster.
So leon we've talked over the years about the drastic measures that Governor Greg Abbott has taken, and he proudly announced on January ninth that the state had sent over one hundred thousand migrants to sanctuary cities across the United States.
And while that.
Action seems wrong on so many levels, he sort of made his point by forcing Northern City Ease to deal with an overwhelming number of migrants, because now we're dealing with the problems that that Texas border communities have dealt with for many, many years.
It was a very effective technique, especially once the people that were being sent were people who did not have a plan for what they were going to do in the United States. It was one thing to send people to other cities if they had a plan because then the cities could simply get a boss or an uber or something else and take them to their relatives. So
that really would have just been a mild inconvenience. But now that there's this new group of foreign nationals that has no plan of any kind of what they're going to do when they arrive in the United States, it is that group that when they get put on these buses by the State of Texas, it really makes a
huge impact on whatever city they're arriving to. Is that those individuals are either going to be homeless or they're going to need somebody in the city to take care of them, and that creates a huge use of gistical problem for those cities.
There's been a lot of talk about how long it takes for the migrants to get work authorizations.
Have they been speeding up that process any So there.
Is a speedier process for people once they've actually either been given a parole or if they've been given temporary
protective status. But for the normal people who are thinking asylum, the problem is there's a rule which is that you have to have a pending asylum application for one hundred and eighty days before you're permitted to get a work permit, and so that's a satutory problem, and there is some discussion that that would be changed as part of this Langford Chris Murphy Senate deal, that if you did manage to meet that higher asylum standard, and you did come
legally through the port of entry, that you would get a work permit right there on the spot, rather than having to apply or anything else. That would be a dramatic change. But that's not what we have right now, and so because of that, you have people that are down for at least one hundred and eighty days that are just wards of the faith. I can't do anything.
There are so many problems with the immigration system. Thanks so much for helping us understand them.
Leon.
That's Leon Fresco, a partner at Holland and Knight. Coming up next, allegations against Fulton County DA Fannie Willis take a detour to divorce court. I'm June Gross. When you're listening to Bloomberg for once, the complications in a criminal case against Donald Trump have nothing to do with the
former president misconduct. Allegations against Fulton County District Attorney Fannie Willis, who brought the election conspiracy prosecution against Trump and eighteen others have taken center stage, and things seem to be getting more sensationalized with each new motion and now extend to the divorce proceedings of the special prosecutor in the case,
Nathan Wade. It began when Trump's co defendant, Michael Roman filed a motion to have the District Attorney's office disqualified from the case because of an alleged romantic relationship between Willis and Wade. The latest was a Georgia judge in the Wadees divorce proceedings releasing dozens of formerly sealed documents joining me Is Bloomberg Legal reporter David Voriakiz who's been following it all. David, to put today's hearing in context,
let's discuss the original allegations against Willis. There are a lot of different facets to the motion by Trump's co defendant Michael Roman.
It's not only that she.
Appointed her romantic partner to lead the investigation. So tell us what the allegations are.
The allegations are that Fannie Willis hired Nathan Wade, who's a private attorney in neighboring Cobb County, to oversee her investigation which spread over two and a half years, and that he was not for qualified for the job when she hired him, that he didn't have the relevant experience in investigating complex criminal matters, that Fannie Willis did not go through the county commissioners in Fulton County as she was supposed to do, and that he was wildly overpaid
for the work that he did, and that he then used the money that he earned from the taxpayers to carry on an extramarial affair that included trips, cruises and plane trips as well. I should say that Fannie Willis has not acknowledged that they had an affair. These are only allegations, and she has steadfastly said that she won't respond to this until she files a court motion on February second.
You spoke to some attorneys in Atlanta about the allegations that he's not qualified to be prosecutor in this huge, complex case. One said, Megan Graut, He's not the first person who had come to mind to handle a complex reco case against the former president of the United States. What kind of legal work has he done before? In were Atlanta attorney's surprise that he was appointed to this position.
Nathan Wade had worked for about ten years as a part time municipal judge in Marietta, Georgia. He also had done a lot of divorce cases himself, and he had done sort of small criminal matters, but he had not appeared in federal court doing complex white collar cases. And the attorneys in the Atlanta area, and there's quite a few very talented defense attorneys, didn't really know him well and were surprised that Fannie Willis tapped him for such a complicated investigation.
How much was he paid compared to the two other prosecutors that she hired prosecutors outside her office.
Nathan Wade was hired at a rate of two hundred and fifty dollars an hour, which is the same rate as another private attorney who was hired, Anna Cross. And there was a third private attorney who was hired, John Floyd, who's an expert on the Georgia Rico law, and he received somewhere between one hundred and fifty and two hundred
dollars an hour. But in the aggregate, Nathan Wade was paid more than six hundred and fifty thousand dollars over two years, whereas John Floyd was paid somewhere in the neighborhood of about seventy thousand dollars, and Anna Cross was paid I believe fifty thousand dollars or less. His total compensation was a good deal higher than Fannie Willis herself made. And you know she earns the most in the office
by far. The assistant district attorneys in that office earned somewhere in the neighborhood of one hundred to one hundred and twenty five thousand dollars, I believe.
And is the complaint about a conflict of interest depriving the citizens of honest services? I mean, what exactly is the legal claim here.
Roman's attorney, Ashley Merchant, is alleging that there's a Georgia law that requires local county commissioners to approve the hiring of outside attorneys, and that Fannie Willis didn't do that in this case. She's also alleging that there was an undisclosed conflict of interest because they were involved in a romantic relationship at the time that he was hired, so
that his judgment was essentially clouded by that relationship. And she's also alleging that there's a possible on a services fraud where rather than analyzing just what he makes in his income and spends it on he's earning taxpayer money and then spending some of that money on her and that that could be a fraud. Now, I should say that all of this still has to be proven, and these are merely allegations. We haven't had fact finding discovery
on that. I should also say that the Georgia Prosecutor's Advisory Council has said that local prosecutors have the discretion to hire who they want. So it's not a slam
dunk case by any means. It's certainly powerful and sensational allegations that have captured a lot of attention, and in a way it's helping Donald Trump in his allies because Fannie Willis is on her backfoot now having to respond to allegations of impropriety financial misconduct that have nothing to do with the racketeering indictment against Donald Trump and his allies.
And there have been even more headlines because of Fannie Willis's involvement in the divorce between Wade and his wife, and she's sort of being dragged into that. Tell us about it.
Joycelyn Wade wants to depose Fannie Willis because she believes that Fannie Willis has unique knowledge of whether Nathan Wade, her husband, engaged in an adulterous relationship. Under Georgia divorce law, that's relevant because it could go to the amount and the nature of the financial settlement. In this case, they have grown children, so the question is not about childcare
or visitation or custody. It's more of financial matter. On Monday, the judge in Cobb County had a hearing on Fannie Willis's motion to quash her subpoena, and basically the question was whether her subpoena was relevant to the divorce proceeding. On January eighteenth, she filed an emergency motion to block that subpoena because she said it wasn't relevant to the question of a marriage that had been irreconcilably broken, that
it didn't matter whatever she had to say. And then she also proceeded to say in that filing that Joycelyn Wade had had an affair herself in twenty seventeen which led to the breaking of this marriage. On January nineteenth, Joycelyn Wade's lawyer responded to say that in fact, Fawnie Willis did have unique knowledge about the details of this marriage that she should testify to, including intimate details about the nature of the relationship between Joycelyn Wade and Nathan Wade,
her husband. So she also adamantly denied that she had an affair in twenty seventeen, and she said that Fawnie Willis should give a deposition in the case. And the judge decided that he would defer a decision on whether Fanni Willis's deposition was necessary to resolve the divorce case.
He said that what mattered here was the size of the marital estate, how much Nathan Wade should pay, and whether there should be any alimony and attorney fees, and that first Nathan Wade should give a deposition in the case because he has unique knowledge about how much money he made, how he spent it, and whether he had an affair with Fannie Willis.
So the judge released dozens of documents in the divorce case, unseal them after a hearing today. But you'd actually seen some of these documents before.
Those papers, which Bloomberg has gotten access to, show that Nathan Wade and his wife, Joycelyn have had a very contentious time in divorce court in the last two years, and that Nathan Wade was cited for contempt by the judge in the same week that Donald Trump was indicted by the way, and the contempt citation was because Nathan Wade was not being forthcoming with financial information that his wife sought as they are trying to reach a financial
settlement to end their marriage. The papers also show that Joycelyne Wade claims that she was in great need of money even as he was traveling widely, and as she claims having an affair with Fannie Willis.
And David Though Willis has not specifically affirmed or denied the relationship, she did address it in comments at a church service.
Fannie Willis appeared at a Black church in Atlanta and gave a special sermon on Martin Luther King Day, and she said that Nathan Wade, without mentioning him by name, is a superstar prosecutor, and she also praised the other
two special prosecutors that she's hired. She did not address the allegations that they had engaged in an affair, but she also said that she was a flawed human being and that she had made mistakes She said that her critics are playing the race card and that they are singling out Nathan Wade for criticism because he's the only
black special prosecutor that she's hired. I should say that Fannie Willis has come under a lot of criticism for those comments, and her critics say that questions about her relationship with Nathan Wade and the money the county taxpayers have spent to pay for his work have nothing to.
Do with race, and the prosecutors on this case actually seemed to have scored several points.
Fannie Willis's office has secured four guilty please of the nineteen defendants, and they've developed a very comprehensive, far reaching indictment that if Trump were re elected, he would not be able to pardon those defendants or pardon himself because it's state charges brought under Georgia election law and other Georgia criminal laws.
It's a long way to go. Thanks so much, David. That's Bloomberg Legal reporter David Voriakis, and that's it for this edition of the Bloomberg Law Podcast.
Remember you've can always get the latest legal.
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I'm June Grosso and this is Bloomberg