This is Bloomberg Law with June Brusso from Bloomberg Radio.
The argument went an hour longer than scheduled as a DC Federal Appellate court weighed whether to put back in place a gag order that barred Donald Trump from comments that target prosecutors, potential witnesses, and courts staff in the federal election subversion case. Trump's lawyer John Sower argued that the former president has an absolute First Amendment right to talk about the case, especially because he's running again for president.
The order is unprecedented and it says a terrible president for future restrictions on corpor political speech. This is a radical departure from the only cases that have considered this particular form of restriction and restriction on a criminal defenderical campaign for public office, and it does so in the context of a hotly contested campaign for the high office in the United States and America.
But the three judges seemed skeptical of the absolutist arguments he was making. Judge Patricia Millett made a distinction between campaign speech and speech aimed at derailing or corrupting the criminal justice process.
I'm not tunning out everyone who speaks for only. This does only effect no one's shutting down and everyone's. It is only affecting the speech temporarily during a criminal frile process by someone who has indicted as a felon. No one here is threatening the First Amendment.
Broadly, there's limited legal precedent for restricting speech of political candidates, and the stakes are high given the volume and intensity of Trump's public comments about the case and the massive public platform he holds. Joining me is Joshua Castenberg, a professor at the University of New Mexico Law School and a former judge in the US Air Force. Trump's lawyer pushed an absolutist argument that Trump's speech can't be restrict did at all.
Well, so a person does not have the right to try to affect or alter the outcome of a trial by intimidating witnesses, intimidating judges, intimidating jurors. But they do have a right to defend themselves in the court of public opinions. And there's an old case on point called Bridges versus California, where a labor leader named Harry Bridges was accused of trying to chill a jury chill a
prosecution against him, and Bridges was held in contempt. You know, Harry Bridges was not the most popular of individuals among the powers that be because he was the president of the Longshoreman's Union and in the midst of the depression had engaged in some strike activity. He did, to a certain degree, do what Trump is doing now, which is
take his case to the public. The difference, though, is that Bridges was conveying to the public that the longshoreman would go on strike again if the prosecution didn't back off on him. That's fundamentally different, though, than these hints of direct threats to jurors, to the judge, to the prosecutor. So it's not a slam dunk case for the former president.
On the other hand, he does have First Amendment rights, and he has the rights to make political speech, and so the gag order has to be crafted very narrowly because his right to make political speech includes his right to object to being prosecuted for a case that he believes and some of his followers believe, is being done to affect the presidential election against him.
Trump's attorney said the test was whether there was a clear and present danger resulting from his speech. But the judges said that Supreme Court President requires there be a balancing test that weighs First Amendment rights against protecting the entire tegrity of a trial by restricting some of the defendant speech. Are the judges writer, or is the defense right right?
Oh?
The judges are right. Here's the thing. You can have an absolutist view of the First Amendment, but when you become a defendant or a witness in a criminal case, your First Amendment rights do not include putting fear into the judicial process. And that's where the balancing test comes up. Trump's attorneys are citing to Oliver Wendell Holmes Junior's a clear and present change er test that he created in a dissent after World War One. That test has nothing
to do specifically with a defendant on trial. That test has to do with general life speech that's made an opposition to some government program, and in that case it was the draft in World War One. That test has nothing to do specifically with a defendant on trial. That test has to do with general life speech that's made an opposition into some government program, and in that case it was the draft in World War one.
Judge Millett also posed some questions about the potential that Trump would try to intimidate witnesses, and she used the example of former Vice president Mike Pence.
Let's assume former Vice President Mike Pence is going to testify and it's the night before his testimony. Couldn't the defendant tweet out, Mike Pence can still fix this. Mike Pence can still do the right thing if he says the right stuff tomorrow. First of all, is that communicating with the witness?
Okay, it's just broadcasting a statement of core political social media likely.
Not trying to protect a witness from intimidation seems like perhaps the most important reason for a gag order before a trial.
Yeah, so try to intimidate a witness from testifying to the truth. What I would say on that is, if there's evidence that he's trying to affect pensive testimony from not testifying truthfully, then you've got an obstruction of justice. In order to prevent a perversion of the judicial process, the judge would be in her right or his right to issue a ruling a gag order on the individuals. So I think the question from the judges and the
right in that particular case. But you know, Trump is very good at saying one thing and then just saying, well, you misinterpreted me. And I have a right to speak my mind and I have a right to campaign for office. Well, both of those are true. He certainly has a right to speak his mind, and he certainly has a right to campaign for office. But he doesn't have a right to pervert the judicial process. And that's where the balancing test comes in.
It looked to me like this was a narrowly tailored order, but they did suggest it was broad and that there was a distinction between threats and harassment of prosecutors versus threats to witnesses or jurors.
Yeah, they were commenting on Jack Smith's tough skin, and the general public would know who Jack Smith is right now. And he's in a different role because he's a prosecutor than being a juror or a witness. And you know, what there is is a mindset, and it's a mindset that has come in regarding prosecutors that prosecutors.
Have to have thick skins.
They're going to get accused of things, including in court sometimes by defense counsel, and they can't fire back, and I think that's what's going on here. I mean, Jack Smith, I don't think has presented any real evidence yet, and maybe there is evidence there that Trump's statements have resulted in, you know, a real chill to the ability of the
prosecutors to do their job as ethical prosecutors. I suppose what you could make the argument on is that today, when someone liked Donald Trump or someone of public importance makes an allegation against someone else, in the world of artificial intelligence, in the world of people being able to mask who they are as people in terms of their real identity, you get all kinds of nasty emails and
phone calls and bots thrown your way. I've experienced that I gave a very neutral comment to the New York Times in twenty and seventeen or twenty and sixteen about boie Bergdal and all I did was give a history of the charge that he was charged with, which was desertion also in the face of the enemy and the like.
And I got a.
Dozen or more kind of hate emails that my way. And it was hard to tell whether they were real people in the United States or bots doing it, but they seem to know enough about me based on a public bio to do that. And I've talked to prosecutors, and I've talked to a couple of judges who've said on cases that involve people of real important significance, and
they say it's become routine that they get harassed. And so I think Jack Smith's side has a point that when Trump argues that you know, he's being prosecuted as a political vendetta and he's going to go after Jacksmith, he encourages his people to do that, that there really is a threat to the judicial process, and that means there's a threat to democracy. But the judges are supposed to maintain and protect the integrity of the judicial process.
And I think out of this some of the gag order will survive, but some of it will be narrowed.
Yeah.
Do you think the narrowing will be basically taking the prosecutors out of the equation.
Yes, I think that's where the narrowing will be, and they'll go back to the traditional model of the prosecutor to have a tough skin and is in a different position altogether.
Although we do know that all the prosecutors involved in these criminal and civil cases have said that they've been threatened and their staffs have been threatened. So now the defense says, if they lose this, they're going to go to the Supreme Court. The Supreme Court has the option of taking the case or not taking the case. Do you think the Supreme Court will take a gag order case like this?
I don't think the Supreme Court will take a gag order case. Normally, we are talking about the former president who is campaigning to be president, and that does make it somewhat different. I would say it's a fifty to fifty chance they will on the one, and the Supreme Court doesn't want to set a precedent in terms of gag orders. They would set a president in terms of a contempt finding. But you know, you've got a former president running once more for president, and this has an
unusual constitutional aspect to it. Beyond the power of the judiciary. It has the unusual aspect of how does a candidate who's running for office the nation's highest office, have to be confined in his speech while facing criminal trials. It's almost like it invites the separation of powers analysis to it.
It's once again unprecedented, which we've said so many times with respect to Trump.
You know, it reminds me in a way of a case involving judicial power and the presidency, but it's not quite it's not really on point. But it's a nineteen
twenty four case called ex Parte Grossman. Grossman was a bootlegger in Chicago and found guilty of contempt in front of Judge Kennesaw Mountain Landis, who you know, is sort of famous for later becoming the first commissioner of Major League Baseball, and the contempt or was simply because Landis ordered him to stop making and selling booze and he
wouldn't do it. On the very first day of Calvin Coolidge's presidency, after Harding dies and Coolidge gets born in Coolidge pardons Grossman, and Grossman was a contributor to the Illinois Republican Party, So you can kind of understand how this happened. It was one of the very first things
Calvin Coolidge did. Landis made the decision that because a contempt finding wasn't a conviction in the classic sense, but rather was to uphold the power of the judiciary over miscreants who violate judicial orders, that Coolidge didn't have the authority to issue a pardon. It goes up to the Supreme Court. The Supreme Court decides that a president has
really unique authorities that are broad. And when I think about that case, and I think about Trump running for the office of the presidency, I would say, normally the Supreme Court wouldn't take up even come close to taking up a gag order, but in this case they might because it does involve the power of the presidency.
Donald Trump has presented more issues over the power of the presidency, probably than any other president in history. Thanks so much, josh That's Professor Joshua Castenberg of the University of New Mexico Law School.
We need a president who's going to restore law and order in the United States of America.
Texas Governor Greg Abbott endorsed Donald Trump on Sunday, focusing on the hardline immigration policies that have played a role
in both their political careers. The border is a centerpiece of Abbot's agenda in an escalating fight with the Biden administration over immigration, The three term governor has approved billions of dollars in new border wall construction, authorized razor wire on the banks of the Rio Grande, and bust thousands of migrants to democratic led cities, and Abbot is expected to sow on what would be one of Texas's most aggressive measures to date, a law that allows police officers
to arrest migrants suspected of entering the country illegally and empowers judges to effectively deport them. Joining me is immigration law expert Leon Fresco, a partner at Holland and Knight. He's expected to sign Greg Abbott one of the harshest anti immigration laws. It makes it a state crime to cross into Texas from another country without papers. Is that basically what it is or is there more to tell about what it is?
Actually? That's basically the law. The law is intended to give the state of Texas the ability to basically stop a legal immigration into Texas by allowing state and local police officers the ability to arrest someone that they've witnessed crossing the border and telling them you have two options. Go back, which would be their preferred option. They don't actually want to put people in jail because of what
a huge resource constraint that's going to be. But the second option is to say, if you don't go back, we're going to put you in jail for this misdemeanor that we've created, which is called crossing the border illegally
and during the State of Texas. Now having said that, the state of Arizona tried this same thing in twenty eleven twenty twelve, and that's what led to the famous Supreme Court case called Arizona versus the United States, where the Supreme Court decided that that was preempted by federal law. So you couldn't pass a law like that because only the federal government had the ability to punish this kind
of unauthorized immigration. And the theory at the time was that the conflicts between what states might do and the federal government could lead to all of these unforeseen public policy outcomes and foreign policy outcomes, that it was very important that the United States speak with one voice and one comprehensive strategy visa the immigration It may be that now that the Justice have changed in composition because the only guaranteed vote you would have for the Arizona case,
Justice Roberts did vote on the side of the federal government in the Arizona case. So you know, Justice Roberts will not probably decide to overturn Arizona but then you probably also have Justice Brown Jackson and Justice Soda Bayor and Justice Kagan. Justice Kagan at the time had been recute because he's been working on this matter as Solicitor General. But you'd assume those four would vote to uphold Arizona.
And then the question is going to be, well, we know Thomas and Alito already voted to allow states to have this immigration authority, so nono. The question is, well, what about Kavanagh Borsa, said Cony Barrett, And that's where it's gonna matter. Will vote three vote to overturn the Arizona law, And the question is how will they do it, because there's a broadway and a narrow way to do it. The narrow way would be to say, look, this is
completely consistent with federal immigration laws. So just like a state can punish drugs, so does the federal government. We don't tell states you can't punish illegal drugs in your state because the federal government punishes illegal drugs. No, we allow them to work in fandom to do this, and so that might happen as if they say, look, these
are not inconsistent. These are completely consistent. So only in that scenario that permitted, or they may actually do something very broad and say that the Constitution doesn't in any way prevent state from having immigration laws, and that would sort of take us back to the beginning of immigration laws, to the eighteen eighties where that issue was litigated and the court said, well, even though there's nothing in the Constitution that explains this, we still must assume because there's
no way you can have a federal government if it can't control immigration. So maybe this will not be the case, and they will go back to the pre eighteen eighty view that if the sting is not written in the Constitution, that means that the states have the ability to regulate it in addition, and so that may happen here and there may be an ability for the states to actually enforce them a grace law. So we'll see how broadly
or narrowly, or perhaps not at all. The Arizona case from twenty twelve is changed.
The last term, though, wasn't there a surprising ruling against Texas? And I think it was Missouri.
So there was two cases and they had split views. There was one case involving the Texas prosecutorial discretion standards, where the Supreme Court said, look, Ice is allowed to have a prosecutorial discretion memo, and the federal government can't be sued for not prosecuting people within this prosecutorial discretion memo that states won prosecuted. It's not up to the states to determine who the federal government should prosecute. So that's different than they can the states take matters into
their own hands. So what we know based on last year that the states cannot dictate who the federal government needs to prosecute. But now we would have a second issue, well, can the states take matters into their own hands and
prosecute if the federal government doesn't. And so there was a case called Kansas versus Garcia that was a little bit of a deviation from Arizona for the purposes of employment verification, where they said the state of Kansas could prosecute people who had used fake identities to get jobs because of the reason of immigration. And there had been an argument in that case that it was prehisted, and
the court said, no, it's not pre emptant. The state of Kansas could prosecute people who use faith forms to get jobs, even if it was an immigration reason for using the faith form. And so it will be very interesting to see whether they continue to go down that route of the Kansas case to allow states to take manners of to their own hands, or whether they just uphold Arizona and not allow this to happen.
Immigrants groups are said that they're going to oppose this, that it's unconstitutional, they say it's discriminatory and it will victimize people of Latino descent.
Well, I think the question will be a matter of implementation, and the Supreme Court has not been too kind to these facial challenges where we assume upfront that the brunt of the enforcement is going to be toward Latino immigrants and not talking about who's coming, because obviously people if they're coming from Mexico into the United States and from the Western Hemisphere, are more likely than not going to be from a Western Hemisphere country, which might be deaned
the Latino Hispanic country. Sure, but that's not what they mean by racial profiling here. They mean what about if they didn't actually see the person crossing, but they just assume minutes later by based on how someone looks that
they were someone who just crossed the statue. Doesn't prevent this kind of arrest and so this should be the kind of statues that should be enjoined because it is too prone to this kind of racial abuse, where people who look a certain way are more likely or less likely to be viewed as someone who just crossed the border than somebody who looks a different way. The Supreme Court, even in the Arizona case, but in many other cases since then, has basically taken the tact of saying, don't
come to me with these theoretical claims. If this is happening, who wants it starts happening, and then will address it then and will decide whether this is too much of a radical law because of the way its being implemented. It's to continue to be allowed to be implemented, but preemptively. We're no longer going to sort of start facially striking down these laws when we have no idea how they're going to be implemented.
Lenn is part of this just messaging that Texas is trying every way it can to message don't come to Texas because this will take years to get through the system.
Right. I think if the courts are being faithful to the President, then yes, they have to enjoin the law, and then let it work its way up to the Supreme Court. Now having said that, the Supreme Court may somehow lift a say and say, hey, there's a likelihood of success here. I don't know if they do that on a rapid basis, or if they'd wait all the way through before they would do something like overturn a
prior president. I would assume they'd wait all the way through, and they'd keep to say all the way through, and so the actual briefing on the merits, which as you say, will take years. But I do think it's fair to say that if this law were to actually go into effect, and you were to actually put the choice to people, hey do you want to spend time in jail or do you want to just go back to the port of entry where you could try again in a different state.
I don't know how many people might think that second choice would be a benefit to the state of sixes. And so it does lead you to think that, yes, Texas is doing it partly for politics, partly to show they're doing everything they can, partly to make set the message. All of that. They're still doubts. But I do also think that if this were ever to be implemented. It certainly might change the calculus that somebody has when they're crossing the post of crossing in a different location.
Coming up next, we'll look at how US Customs and Border Protection is paying a data broker for powerful surveillance tools to monitor immigrants and others in the country. This is Bloomberg. I've been talking to immigration law expert Leon Fresco of Holland and Knight about some of the unique ways Texas is fighting immigration. I mean, Texas seems to come up with idea after idea. Remember the boys in the Rio Grande y did they just remove those voluntarily? What happened there?
That's still in litigation right now. The buoys were first ordered to be removed, but then the Pellet course, the Fifth Circuit did say then that they can keep the buoys while the challenges continue. And so, yeah, some have been removed, but some are still there, and those I don't think that are still there are going to be removed until there's an actual order requiring those to be removed. Now, are they effective?
Not?
Because there's other parts of the river that are not very wide where the buoys are not cannot be used. And also there's ways to get around these booys, et cetera. But having said that, all of these things are being done to create symbols and barriers both figurative and literal, to drive to send these messages that a lawful migration
into Texas is not welcome. But I do agree in terms of the bang for your buck or the impacts of what you're getting, that these buoys are certainly not the best use of Texas's resources.
Unlike New York City's mayor who went down for a visit and really didn't send out a message don't come sure.
I mean, look, at the end of the day, all of these folks really have come together, and if they all were to rally sort of around two topics. Number one is, if you do pass whatever screaming we're going to end up giving you, you still have to have some sponsor who's going to take care of you, who's proven and is vetted before you can be released from custody.
I think that will make a huge difference in terms of where all of these folks are going and why they're all coming, because right now people aren't coming expecting to be taken care of by local government, which is a sea change from where it was number one, but
number two. I do think you have to raise the standard to give people some higher standard that they have to be rather than just articulating a formulaic asylum claim, there has to be the idiosyncratic claim that you make has to have some reasonableness to it, where it seems like at least you have given clear and convincing evidence that if your account is correct, that you will win. I think is a better standard than just saying that your account, if we get more information later, is an
account that allows you to stay in the country. Meaning you could just say I was politically persecuted in my country and leave it at That should not be enough. You should have to lay out your entire story, and then the point is, well, okay, if this story is corroborated, sort of the way a complaint works in a federal lawsuit. If this is corroborated and that means you'd win, then
you can say. But if you can't lay out a claim that, if corroborated, would not win, you probably shouldn't be allowed to say.
Leon. Let's turn now to US Customs and Border Protection paying a data broker Lexis Nexus Special Services nearly sixteen million dollars for a five year contract for access to a suite of surveills tools including social media monitoring, web data such as email address and IP address locations, real time jail booking data, facial recognition services, and cell phone geolocation data analysis tools.
So for the last few years, the Department of Homeland Security, both ICE, Immigration of Customs Enforcement and CBP UF put some Border Protection have been purchasing as much privately available data as possible. And the reason is threefold. Basically, the first thing that they're trying to do is they're just trying to figure out where people are because there are so many people that are being released into the United States.
And then at con big it's for various reasons they don't show up the court, or they rip off their ankle, bracelet or whatever. And when I really need to find these people or CBP through its investigative arms, then they
can find them. And this can be through all kinds of things such as your license play was read on a red line, or you ordered a pizza, or you bought some movie or whatever it is that you ended up doing that ended up getting attracted by a private vendor and all of that private information is being bought and purchased by the government, which is perfectly legal be private industries get your consent theoretically whenever you're checking those
boxes that you don't want to check, but they're forcing you to check to order a pizza or to buy something out a sore online or whatever it is you're doing. And they're collecting all of this data and they're doing it to a try to find people b The other thing they're trying to do is to determine if people are violating the terms and conditions of their non immigrant visa.
So that might be, for instance, if you're a student and you're supposed to be studying, let's say at the University of Texas at Austin, and everything about you shows that you are purchasing everything and then traveling and doing everything is in Los Angeles, then the idea is, well, maybe you're not actually studying at the University of Texas.
Maybe you're in Los Angeles and you're working, and we have that event of this, and so that's the second thing it's being used for, is to determine visa compliance. And then the third thing it's being used for is to determine this sort of web of associates to try
to link up different people in different cases. But the government is suspicious about one person, to try to find as many webs of where you're intersecting, and the more a person intersects with sort of other bad people at five or six degrees a level that you say, oh boy, this person has associates XYZ, and then XYZ have associates YZW and they're all intersecting. Then that's alerting the government that it needs to either revoke a visa or de i of visa or come get you because you're a
dangerous person. So that's what this evidence is being used for.
So why is just Future's Law, a legal nonprofit serving marginalized communities suing Lexis Nexis Risk Solutions. Is that over individual state privacy laws?
Well, the problem is there's all these different privacy laws and all the different states and privacy advocates politically, so let's start with that, just the political aspect first. There, Please tell any of people who say, look, the government shouldn't be doing this, shouldn't be accumulating all of this information. Who knows how it's being used? Is it being safeguarded? So there's all of those complaints which are understood. Those
are generally good government sort of complaints. And you know, it just depends what year you want to live in, and you want to live in a year where all of that cat isn't out of the bag already, I understand, and you know, the people who are always pushing back on that are understood. But sort of now here at the end of twenty twenty three, you start thinking to yourself, boy, that cat not only is out of the bag, that cat is in a different state than the bag at
this point. So I wonder what the complaces now, And then yeah, these are these state laws. You have different states that require different levels of consent before people's data can be purchased, and so people will too if they can determine that a state law was violated for the purpose of privacy, because CBP may have bought data or used data that wasn't consented to for a specific purpose, and so that is a reason that you can see
and so people are always monitoring that. But that's a very sort of detailed data oriented thing, because different data can be used for different purposes and has to have different level of disclosure, and so all of this is on a very state by state and data by data basis.
When you come into this country, you're immigrating here, and let's say you go through the system, do you sign anything that consents to monitoring.
Well, it's not that you sign anything, because there's a lot of foreign nationals who are told don't sign anything, and so many of them don't even sign anything. But it's not actually in the law. It's in the statute and in the regulation that if you get relief from detention, you can be released under any terms and conditions that
the Department of Homeland Security beings appropriate. And so it's just the act of releasing someone from immigration detention that automatically creates the legal duty to comply with any terms and conditions that I want.
Once again, Leon, I have to say, I don't know how you keep up with all of this. Thanks so much for being on the show. That's Immigration Law expertly on Fresco, a partner at Honda Night. And that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law podcast. You can find them on Apple Podcasts, 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 and you're listening to Bloomberg