Is There Enough Evidence Yet to Indict Trump?

of indicting a former president. If there's the ability to move forward on prosecuting and you don't, you've basically set the floor for future behavior of any president. And I don't think a democracy can survive that. So I certainly hope they're moving forward. Joining me as former federal prosecutor Kevin O'Brien, a partner with Ford O'Brien Landy, Kevin, I want to look at this in two ways. Before the riot and during the riot, it's pretty clear he did

nothing to stop the riot. He sat in a dining room near the Oval office and watched Fox News. He called senators to tell them they should object to the election results. He fended off please from various White House people to stop the violence. Is that enough not doing anything? Well, it's not a crime to do nothing except in very

very unusual circumstances that I don't think apply here. In some places, in some situations there are good Samaritan rules that require actors to take action, and if they don't, they can be charged or sued. We're not talking about that situation here, But I think the significance of the I think it was a hundred and eighty seven minutes, wasn't it. They counted them up, in which he did nothing. The significance is it shows what his state of mind was.

That's a chestnut. We hear a lot about state of mind, and I think this makes even clearer than before that Trump's state of mind was he was in favor of what was going on, if he didn't want the violence, which is a stretch. He wanted something to happen to prevent the counting of the votes so he could continue his term in office. He wanted Pence to be scared out of his mind and have to leave the capital

before he could discharge his duties. He wanted the senators and the congressman to disperse so they couldn't do their jobs. He wanted something to happen to delay or prevent that constitutional function from being fulfilled. And the eight seven minutes kind of goes to that issue is seven minutes is a long time. When you're watching the proceedings on television. It's pretty eloquent testimony. And I think that's the legal

significance and probably also the moral and general significance. Representative Adam Kinzinger said, the panel has proven a criminal case against Trump, but it seems to me that the evidence is less clear about whether he incided the attack on the Capitol. I mean, there are the tweets and the speech, but we also call for com at different points. It doesn't seem very strong to me. I think there's some softness there. I agree. I think this this would be

a difficult aspect in any criminal case. You can keep in mind that the evidence gets pared down. A lot of the stuff we hear and read about probably isn't admissible, you know. For example, one of the commentator's favorite examples is all the demonstrators and rioters who said we went in because Trump told us to and wanted us to

go in. Now, unless there's evidence of a conspiracy between Trump and the rioters and so far, we haven't seen at it's pretty clear in the absence of a conspiracy, none of those statements are admissible against Trump and a

criminal trial, they just wouldn't come into evidence. So just taking that one example, you can see that the way a trial would proceed under the rules of criminal procedure and federal or even state court because there's the Georgia case going on, which is in state court, the way a trial would proceed is not the way you see it unfolding on television with the benefit of everyone's commentary.

And there are a lot of examples of that stuff that wouldn't come into evidence and jury wouldn't hear about or see in a criminal trial. And that's one of the drawbacks that people have to take in mind when they consider what the Justice Department is doing and Merrick Garland is doing in weighing these potential charges. It's very difficult. There was evidence time and time again that he especially with the takes, that he didn't accept the fact that

the election was over. That was no surprise because it's still going on to this day. Apparently a week and a half before the hearing, he called the speaker of the Wisconsin legislature to demand he retroactively take the states electors away from Joe Biden. Right. I think again, it's used to show a motive for doing wrong on January six, and immediately before and immediately after. But you're right, in a way, it proves too much because he's still of

that state of mind. It's hard to argue that the criminal scheme is continuing to the president and not. Of course, he's not in a position to influence anything now once he stood down from office, which he had to do finally, and he lost that ability. And that's why January six was so important to him, because that was really the last opportunity to try to throw a wrench in the gears and prevent the succession that put O Biden in the White House. But you're right, his state of mind,

for what it's worth, has not changed. Still there and seems to be almost a permanent feature of his mental makeup, probably will be forever. He's never going, I would hazard to predict, he's never going to admit that there was no fraud, the election was legitimate. I've heard conflicting opinions from former federal prosecutors. One is that it's taking the Justice Department too long to indict Trump or to decide

whether or not to indict him. That the January six committee is obviously out in front of the Justice Department. The other is that it takes time to build a case, a precedent setting case against a former president. Which side do you want? I think both those things can be true. That's not fair, even if they started from day one whenever, that is I guess when they started building cases against

these lesser pete. Building a case against the president does take a lot of time, and they have to take into account this enormous range of actors in the Justice Department, in the White House, in the demonstrators, the people that attended the speech, in Trump's inner circle. All these people have roles to play in the scheme as it's apparently unfolded. And we're not talking about people who are unsophisticated. These

people know how to find good lawyers. There are funds being created by various right wing groups that would enable them to hire good ones, approaching these people, negotiating with them, getting them to see the light and to tell the truth. And we're talking about dozens of people. Again, it takes time, and the theory of the case also is subtle, because as you said, you know, he wasn't out there with a Confederate flag bang down the door of the Capitol

Building as usual. He's so good at this. He he works by indirection. He makes little hints, he drops little lines, little nuggets that his followers take, you know, as a signal to go forward and storm the Capitol building. But he doesn't say that outright. Many people have said, beginning with Michael Cohen, he's like a mafia dot. He doesn't

have to say it. He knows his followers would do just about anything, the famous line about standing in Fifth Avenue, and so he just he just does the minimum necessary to motivate them. And then later when the stuff hits the fan, he has plausible deniability. Oh I never meant dot dot dot, And that's what he's doing now. So that to take into account all these subtle e's, and there are, as we've been discussing, weaknesses in the case

that need to be addressed, if not overcome. There is no core conspiracy involving the riot itself, as far as I can see, clearly fomented it. He clearly wanted it to happen. But there's no evidence that he conspired with any of the planners or leaders of the riot to go into the Capitol building that day. Of course, you can argue he didn't have to. He had other means at his disposal. And that's where the the subtlety of

the guy comes into play makes it very difficult. People keep pointing to conspiracy to obstruct an official proceeding as being the easiest to charge, were the most likely. You think there isn't any evidence of conspiracy. No, I think there is. I think you know, you've got to define what conspiracy you're talking about. I think it's pretty clear there was a conspiracy within the White House with Eastman and all these so called legal intellectuals that he surrounded

himself with, Clark in the Justice Department. All these people came up with these crazy theory areas that are blatantly illegal and unconstitutional to satisfy and serve him, and then they tried to enact them. That's a conspiracy. That was a plan that was hatched and steps were taken towards it, and that's the definition of a conspiracy. Conspiracy doesn't have to succeed legally to be charged with conspiracy. You just have to agree to an unlawful end and then take

some steps towards that end. But that's not the conspiracy that excites people. I mean, it's a conspiracy on paper. It may technically be a crime, and as I think I've said before, it it's not one that has a great deal of jury appealed because it's it's a bunch of half cocked intellectuals sitting around, Gee, what can we do to keep this guy in power? Not that exciting. It maybe a crime technically. The bigger conspiracy is the

one that involves against storming the capital. When you reach the point where you're taking steps under a conspiracy theory, under an agreement. Again, if Trump had taken steps based on an agreement with Proud Boys and those folks to get together, get all excited and worked up over the speech, get their troops in formation, and then storm the Capitol and and go to routs, abc D, Nancy Pelosi's office, and so on and so forth. Now that's a conspiracy

worth getting excited about. Also patently illegal, and more importantly, is dangerous to the country and the constitution, a very very serious crime that would be a great centerpiece for a criminal case. But unfortunately, again there is no evidence so far that Trump ever agreed with the leaders of Proud Boys, or Roger Stone or any of those intermediaries he had working for him, never agree ead with any of those folks to do that. Again, he stood back,

He made oblique references. He incited them with phrases it's going to be wild, you know, stand back and stand by. Those are signaled to the cognizanti in these groups which are hanging on his every word. But there's no agreement based on those kinds of statements that you could prove to actually lead an insurrection and take over the Capitol building.

So the way I would summarize it, there is a legal case which is rather dry and rather I wouldn't say it's not worthy of consideration because it's plainly contemplates the illegal action. But it was an idea that was you know, tried on for size and ultimately not carried out. And that that's criminal because again, a conspiracy doesn't require

many more than a few steps. But not a very interesting case for a jury, and one that you can genuinely doubt should be the subject of a prosecution involving a former president. I think that's troubling Garland. On the other hand, you've got this outrageous riot which caused loss of life and very nearly shut down the government and overthrew our constitutional processes. But there you don't have a link to Trump. You don't have Trump as a member

of that conspiracy. It involves other people so far, so you know, pick your poison. So I think these are the kinds of questions that may be troubling the attorney channel. He's got a lot on his plate and these are very, very difficult questions. Do you think that in order to pursue a case, in order to prosecute the a G would want a witness from the inner circle to flip a witness from the inner circle. And then the question

is is their attorney client privilege? Is their executive privilege? No, I don't think any of those privilege claims hold water. And right now these claims have some traction because the January six Committee really doesn't have the power to force people to testify in the face of an assertion of privileges. They do, but it takes forever and their time is limited. They've got to move forward. Have these hearings right, or report they don't have time to dawdle with these individual

assertions of privilege. The Justice Department, though, could you know, there's something called the crime fraud exception, which states, and it's well established that even attorney client communications in furtherance of a crime or a fraud are not protected because essentially you're trying to cloak criminal statements and criminal conversations and furtherance of a crime, and that shouldn't be allowed.

But that requires a showing. You have to go into court, someone asserts the privilege, you move to compel comply ends with the subpoena, and you try to tell the judge the reason why the subpoena should be enforced notwithstanding the claims of privilege, is we believe these communications were in further into a crime. See the following. You've got to cite transcripts and documents. You have to have evidence, and they have the manpower and the expertise and the powers

under the law to enforce decisions of that kind. So far, by the way, I'm not aware of any case in which they've done that, which sort of tells you that they're probably not as far along as one would like. I mean, these are These are again high level decisions. They require a good deal of legal sophistication. You've got

to pick your battles carefully. I mean, someone like Roger Stone, for example, or General Flynn or Mark Meadows could be vulnerable in these terms under the crime of fraud exception, and undoubtedly these people Meadows. It's pretty obvious from the hearing so far. These people obviously have important evidence against Trump and could provide that link that we've been talking about with the violent conspirators trying to attack the capital.

But you'd have to go into court with a careful plan and write the briefs and persuaded judge, and then there's an appeal. You get the idea. So far, that work hasn't been done, and that's a little troubling to people who think the Justice Department should be on the verge of indicting after all this period of time. It

doesn't look that way, but it would. It would have to be done to have the kind of case that you're talking about June, where you have inside testimony linking the president to some of these outrageous actions at the Capitol that day. Trump is obviously going to run for president again. He's the current front runner for the Republican nomination, Will that in any way insulate him from prosecution if he runs for office. No, it shouldn't. It has no,

it has no legal bearing. You know, there is a sort of policy of the Justice Department that you've probably read about in prior contexts that says you shouldn't conduct a political prosecution close to election season. But this has been brewing since the last election, Right, it's time to bring this to ahead. Those policies are really just rules of thumb there for internal guidance. They don't have the

force of law. Someone marked Meadows, for example, couldn't go to court and say, hey, you can't indict me because it's too close to an election season. It's not how it works. It's just a policy he meant to guide practice within the Justice Department, and and in certain cases that policy can be um overturned or not followed, and that would probably be the case is here. No, there's no legal impediment at all to proceeding with a case against a former and would be press in the United States.

Thanks so much for being on the show, Kevin. That's former federal prosecutor Kevin O'Brien. Partner with Ford O'Brien Landy. Immigrants are increasingly turning to the courts for solutions because of protracted weight times for benefits like work permits and travel authorization. The number of immigration related lawsuits over administrative delays filed as rits of men dames has spiked in

the past two years. Plaintiffs are projected to file more than six thousand, two hundred such cases by the end of this year, according to the Transactional Records Access Clearinghouse. Joining me is immigration law expert Leon Fresco, a partner at Hollanden Night Leon what are some of the complaints being raised in these lawsuits? The lasses that are being

filed are based on a number of factors. Yes, they are being filed mostly because of delays in the agency, and mostly because of the delays and the issue with the green card applications. But really they're being filed because there's delays all over the system. There's delays and the issuances of work permits, there's delays in the issuances of travel permits, there's delays in the issuances emotions to reopen,

there's delays in the issuances of green cards. There's delays in the issuances of visas abroad by the state's department, and so all of this is leading to a record amount of litigation. Plus there's also people doing for review of denials of cases because the adjudicatory framework is still pretty much the one put in place by the Trump administration, where the scrutiny being requested in any given case is much much higher than it has previously been under the

Obama administration. That scrutiny hasn't changed under the Biden administration, and so there are still many cases that are being denied that shouldn't have been denied, and so all of that is leading to this record number of litigation that you're seeing in the federal court. I don't ever remember a time when people weren't complaining about the delay is in processing, you know, immigration related requests. Is this much

worse than it was? And if so, why I would say that the answer to that question is yes, it is materially worse than it was. And it's basically a case of you don't know what you have until you don't have it. So people, it is correct j to say, have always complained that the immigration system is too slow but they were complaining back then on a state of affairs where for a work permit it took three months

and for a green card it took a year. Now we have for a work permit it takes nine months and for a green card it takes up to three years. And so because of that delay, that is materially worse. And the problem is we're now a year and a half into the Biden administration, so it's hard to say, oh, well,

we've been felt this terrible hands. Yes, that may be true, but a year and a half end at this point, one would have hoped that the delays we're starting to peek on a downward scale, and we're not really seeing that. The American Immigration Lawyers Association has encouraged members to bring man dam as actions when their clients encounter excessive delays. Doesn't that cause more delays by having another action and

having to have government attorneys fight that. Well. The problem is if every single person who has an application files also a man Damous application, then you're just recreating the same line again. So there's no doubt about that. But the idea is that by filing the man Damous litigation, what you're essentially doing is you are saying, hey, remember me, I exist, And when that happens, then the immigration authorities get around the deciding your case because otherwise they didn't

remember necessarily that you existed. So if the delay is truly long, it is not a bad strategy to file a mandamus kate. But if everybody files a man davious case, then you do have the same problem of sort of a tragedy of the common situation where everybody recreates the same backlog, and now you have even worse backlog because the agency is not only dealing with the backlog but

all of the lawsuits. But we're not seeing it at that level obviously, because we're seeing something along the order of six or seven thousand man Damous cases as opposed to millions of applications that are in the backlog. So it's not really a problem that would actually exist that everybody in the backlog would be filing a man Damous case. Do you get a more favorable outcome if you file

a mandamus case? So this is an interesting question. A lot of people, when you discussed this, are very afraid to sue the government because they think that the government will retaliate against them and say, well, if you suit me, I'm going to just deny your case because I'm upset.

But that actually it doesn't happen in practice and practice, what will happen is if you truly have a case that's delayed and you file a mandamus case, the government will usually try to work with you to each of you a decision, and that decision, I would say, undred times is the exact decisions that would have been issued anyway. I'm not personally known of a case of retaliation that's happened because of amenda damous case, and so I wouldn't

fear filing it because of a fear of retaliation. So has the agency taken some actions to resolve these backlogs, Well, they have done as many things as they can figure out to do at the moment. And so what they've done is for work permit renewals, they've tried to make those longer so that people have to do less renewals than the future. And that's a good thing, but that

sort of needs to cycle through the system. So they have to grant all of these applications with longer renewal before they can reach the benefit of having that at so that's the first problem. They fan it in some of these green card marriage cases that are take up a lot of their ties to extend the period of time whereby someone has a green card while they're waiting for their final permanent green cards to be issued. So they're doing things on the margins to lessen their case.

But the problem is as an agency, they're also dealing with record numbers of asylum cases and record numbers of cases where people are trying to fill gaps in the fact that they can't find American workers. And so really what's happening is they're not getting anywhere because even if they can trim down a number of cases, they're still having to get excess cases from all kinds of other sources, and so they're not really making a dent in their

overall workload. That was interesting. So why do green card marriage cases take up so much time? Well, because in the marriage context, it's not like a normal green card application. When you marry a US citizen, there's a two year conditional green card you get first, and then you have to come back after two years and prove you see,

this wasn't a fraudulent marriage. We're still in a real marriage and only then you get your permanent green card, and so you've got to basically recreate the process why and typically that green card was only good when you filed that recreation process for a year extensive and so that created work because if the agency didn't grant the new green card within a year, then you'd have to

file for another one, etcetera. So now they've extended the period that they have to decide that by extending how good, how valid the green card is while they're waiting, but they actually haven't gotten to the next step of adjudicating the second stepani past Or. In fact, it's the slowest it's ever been. But this is an example there trying to build in these cases where they don't there will

be renewals necessary. They're trying to build it so that they don't need to do renewals because they said the validity of the first benefits that you get, whatever that is, whether it's a Greek Card or a work permit. So I want to turn to a couple of other immigration related issues. The DOCTA case before the Federal Appeals Court

in New Orleans. What is the issue there? It's in a very strange posture right now, because the real debate that was sucking up sort of all of the energy and the oral argument had to do with standing, and that is that originally the State of Texas, when it was challenging all of these DOCTA and DAPPA laws, had said that the problem was that they had to give drivers licenses to people who had deferred action and that that ended up costing the money. But they didn't end

up pursuing this argument. This is not the argument they used are standing now now they use arguments related to sort of economic population analysis, but basically just saying that literally, the more human beings they have in Texas, the more it caused Texas. And because of the sort of debulous economic analysis, it leads it up some more of a debate about whether that's true, whether that actually is a concrete and specific harm that gives state effectives standing to sue.

And so there were debates between the State of Texas and the Department of Justice and the intervening parties who were the states who are kind of the more liberal states and also mild that the Immigrants Rights Organization. All of these folks got to speak in the oral argument, and we're all making arguments regarding this issue of whether

Texas had actually shown concrete heart. There was also another discussion in the argument about whether even if the government could differ someone's deportation, well, could they do the next step and give them a work permit? And here the Department of Justice was actually not so strongly willing to defend the second concept that a work permit was permissible to give the people who previously didn't have any immigration status. And so I wonder where that's going to lead in

terms of a future argument in the Supreme Court. But for now, what everybody's just looking at is whether the case will be remanded great trial on the issue of standing, or whether the case will be allowed to proceed to the Supreme Court. So it's going to the Supreme Court any which way. Eventually it will, but there may need to be a trial about whether the jury actually thinks

to stay. The Texas is armed by having sort of an increased population of Baku people in the state, because one could say, hey, you know, depending on how you do this economic analysis, more people has always led some

more d DP. That's just a a rule. People equals higher GDP, it may not equal higher per capitative DDP, But the question is, okay, so the government's going to get certain revenue increases by having more DDP, but it's not going to be offset by certain expenses that they have, and it's unclear whether Texas actually met its burden here. The next immigration issue is in Texas, where there seems

to be an escalation with Texas Governor Greg Abbott. He's authorizing state officials and National guardsmen to arrest migrants who enter the US unlawfully and transport them to federal ports of entry along the border with Mexico. Is he allowed to do that? Well, the first step is what's the actually doing, So that's the first step that needs to be determined. He's obviously not allowed to pay a human

body and move it into the country of Mexico. And I don't think the State of Texas is claiming that

they're doing that. They're just claiming that they're basically pushing the person back to the point A of entry so that it makes them harder for them to get the point B of wherever they were trying to go when they entered into America visa v. Point a. So the goal is just the sort of sifle the ability for people to make it to wherever they're trying to make it suit to sort of adds to the costs an inconvenient um doing this so that people might be deterred

from coming into the United States, I don't know how

effective that's going to be. But then the second issue that gets analyzed is when any government entity, federal, state, or local, is taking custody of a human body against that person's will and doing something to it, whether it's putting it on a bus or whether it's detaining that person or whatever it's doing, the question is what authority is that acting under in order to do that, And so you'd have to show that the person is breaking some laws that allowing the State of Texas to do this,

And I don't know what law the State of Texas is going to say is being broken, especially in cases where the person has already been processed by the border patrols, as opposed to a case where maybe Texas caught the person but they never made it to the attention of

the border patrol. So along those lines, I don't see how there's a case that Texas can make that they have lawful authority to detain a human being and put them on a bus against their will and take them to a location they don't want to be taken to. I mean, you have to have do process to challenge some detention like that, and so there I just see that failing for that preason. Would it be the Biden

administration who Susana? Would it be you know, the A C l U or something, right, it could be anybody. It could be the Biden administration doing it as a matter of preempsion that what Texas is doing is pre

empted by federal immigration law. Or it could be any organizations doing on behalf of the people who are the immigrants going through this process, or it could be a group of immigrants who have had the sunt of them potentially suing for injunctive relief or for money damages, even depending on if they were armed in some way by

the tension and relocations of the board of Entry. So US officials on the southern border have processed migrants over one and a half million times so far this year, and they're on track to surpass the record one point seven million migrants. When they say they've processed them, does that mean that they're processed into the country or you know some of them are deported. What does that mean? What that number from one point seven millions is apprehending?

What that means a person has tried set for the United States in one way or another. Our border patrol has encountered that human being, and it's made a decision after that human being. It doesn't mean that the decision that's been made has been to allow that human being

to proceed into the United States. In fact, a large number of these individuals were expelled back into Mexico under Title forty two, and then they tried again, and then they weren't spelled again, and then they tried the third side, and then they were spelled again. So those numbers may not represent or in fact do not represent unique numbers. They're not exactly one point seven million different individuals who

have had encounters with the border patrol. But it's in fact one point seven millions total encounters of which some number has been allowed to enter, especially in cases like Venezuelans at Cubans, where Mexico has not accepted those people back into Mexico, and those people can't be the poor it back into Venezuela or Cuba because those countries are simply not accepting American deport datas, and so it's a lot of those cases, those individuals have been able to

enter the United States, but in a lot of other cases, people have been pushed back into Mexico of their Title forty two and Title forty two. What's the status of Title forty two right now? I mean, there wasn't an order that the Biden administration had to keep using Title

forty two. Where does that stand, right? I mean that Title forty two cases moving its way very slowly through the court, and the administration is still using Title forty two, but it's basically using it to expel almost exclusively Mexican nationals back into Mexico, which still are the largest percentage, you know, of any specific country. They're not a majority, but they're the largest percentage of any specific country coming in. And then they're about expelling about half of the sent

American migrants who are being encountered in the border. But if if people from any country other than Mexico or the Central American country, we're seeing about twelve percent of those individuals being expelled un their Title forty two. Thanks Leon, that's Leon Fresco of Hollandon Knight. I'm June Grasso and you're listening to Bloomberg