Epstein Files Distraction & ICE Racial Profiling

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2:12This is Bloomberg Law with June Grosso from Bloomberg Radio. A growing number of lawmakers on both sides of the aisle are calling for the Justice Department to release all the files related to Jeffrey Epstein. This despite President Trump's efforts to downplay them, calling it a hoax and a scam. It's all been a big hoax. It's perpetrated by the Democrats. And some stupid Republicans and foolish Republicans fall into the net. And so they try and do the Democrats' work. Last Thursday, Trump authorized the Justice Department to seek the release of grand jury testimony from the Epstein prosecution.

2:55After the Wall Street Journal published a story alleging that he once sent a suggestive birthday letter to Epstein. But some Republicans, like Tennessee Congressman Tim Burchett, are still saying it's not enough. I think it's a start. I don't think we're ever going to get to the bottom of anything, all of it. This town doesn't give up its secrets very easy. Joining me is former federal prosecutor Robert Mintz, a partner in McCarter and English. Bob, so the Trump administration asked a federal judge to unseal the transcripts in the Epstein case. This is an unusual motion. Why go through the bother of making it?

3:34What information would you really be able to get from those transcripts? Well, there's no question that the release of grand jury transcripts raises real privacy concerns about not only the victims, but even individuals whose names may have come up in connection with an investigation, but were never charged and would not have any opportunities to defend themselves if those names were released. The other thing about the grand jury testimony that's interesting is that typically the grand jury is used for the limited purpose of obtaining an indictment. Now, there are circumstances where prosecutors will use a grand jury as more of an investigative tool.

4:15And in that instance, you might have more witness testimony in front of a grand jury. But for the most part, when you're the prosecutor, the last thing you want to do is put a key witness in front of the grand jury because that testimony would then have to be turned over to the defense counsel at some point. So most of the time, all of the critical witness interviews take place outside of the grand jury, assuming those witnesses are cooperating, and they're done in front of an FBI agent or another investigative agent, and a report is prepared. But that's not grand jury material, and that's not the kind of information that will be released if a judge indeed decides to release these grand jury transcripts.

4:53Even if they release transcripts of, let's say, an FBI agent's testimony to the grand jury, you wouldn't see, for example, the notes of witness interviews or photos, anything that's attached to that? No, in fact, it's quite the opposite. When the FBI interviews a witness outside of the grand jury, they create a report commonly known as an FBI 302. And that is a detailed report of what a witness says during the course of an interview. But when a prosecutor presents his or her case to the grand jury, if they put an FBI agent on the stand, that testimony will be very focused and will be very summary in the sense that all the prosecutor is looking for is enough evidence to show a grand jury that there's probable cause that the crime has been committed and that there's enough evidence to move forward with the charges.

5:47So the reality is, as a prosecutor, you want to present as little information as you need in front of the grand jury in order to obtain that indictment. The other thing about grand jury testimony is that hearsay is admissible so that agents routinely will go in to the grand jury in order to obtain an indictment and provide a summary of witness interviews. They don't have to provide all the details and the witnesses themselves do not have to appear to present their testimony in order for the grand jury to rely on that testimony in deciding whether or not to return an indictment. And Bob, talk a little bit about the importance of protecting grand jury secrecy.

6:27So grand juries are covered by something called the Federal Rule of Criminal Procedure 6E. It's a rule that every federal prosecutor is extremely familiar with, and it prohibits an attorney from the government or anybody really who is aware of matters occurring before a grand jury from disclosing any of that information. In fact, when you represent a witness who goes to testify before the grand jury as the lawyer, even you are not permitted to go inside the grand jury, only the witnesses. And you can debrief your client after they come out because the witnesses themselves can talk about what their testimony was.

7:04But nobody else can talk about what goes on in the grand jury, not any of the grand jurors and not any of the federal prosecutors. And there's good reason for that. The grand jury is an investigative tool. Information is presented to a grand jury that may not ever result in an indictment. Charges may never be brought. And the concept behind Rule 6E is that all those proceedings are secret unless and until an indictment is returned by that grand jury. And it's done in order to preserve the privacy of victims and even the privacy of individuals who prosecutors may suspect have committed a crime.

7:40But ultimately, if they're never charged, the idea that would be unfair to release damaging information about an individual who then never gets their day in court if they're never charged with a crime. What are the reasons that the attorney general is giving for unsealing the grand jury testimony? Well, the Department of Justice filed a motion before Judge Richard Berman, who was the judge that was handling the Epstein case at the time that Mr. Epstein committed suicide. And the motion essentially said that disclosure of this grand jury testimony is necessary given the longstanding and legitimate public interest in the Jeffrey Epstein case.

8:18It's going to be interesting to see how the judge handles that request because there are many cases that are very high profile of which there is longstanding and legitimate public interest. And typically a judge will not release that information. Now, in the Second Circuit, which is the Court of Appeals where any decision made by the trial judge will ultimately end up, the law says judges have inherent authority to release grand jury materials in what's called special or exceptional circumstances. And what that really means is that it is up to the discretion of the judge whether or not to release this information, but it certainly suggests that it is done only in the most unusual of circumstances.

8:58And then, even if information is released, it would have to be heavily redacted. And by that, I mean that the names of victims and perhaps even the names of some individuals would be blacked out and not released to the public. So the reality is that this motion may take some time for the judge to decide. And then even if the judge decides to release that information, there may be parts of it that are blacked out and never released to the public. So we really don't know how critical this information ultimately will be, even if a judge decides to grant the government's motion. There's also the fact that his co-defendant, Ghislaine Maxwell, is appealing her conviction to the Supreme Court.

9:40And the government acknowledged that in their papers, saying, while the government recognizes that Maxwell's case is currently pending before the Supreme Court, it nonetheless moves this court for relief due to the intense public scrutiny into this matter. So will the judge have to weigh, you know, the possible impact on her case with the public interest? Yes, you're absolutely right. As you said, Ghislaine Maxwell, who was the former girlfriend of Jeffrey Epstein, was convicted in 2021 on sex trafficking charges, and she's currently serving a 20-year sentence. But as you say, that conviction is going up on appeal, and the court will be mindful of her rights and will try to make sure that nothing that is released here ultimately could be prejudicial to her.

10:26So there's an awful lot for the court to weigh in the balancing act of trying to figure out what, if any, information should be released. And then I think the real interesting question is even if the judge does grant this motion and release some of this grand jury information, just how critical will it be in terms of answering the questions that seem to be motivating the Department of Justice to file this motion for the release of grand jury testimony? Some are suggesting a special counsel. Trump initially said, I have nothing to do with that. But then the press secretary said that Trump wouldn't recommend a special counsel.

11:05Could a special counsel get to the truth here? Well, there could be another type of investigation into exactly what the Department of Justice did, because there's lots of evidence that was gathered during that investigation that is not going to be part of grand jury testimony. For example, there's videos, there's photographs, other recordings, there's text, there's emails. There's an enormous amount of information that was no doubt gathered by federal prosecutors during the course of this investigation. None of that information will be released based upon the government's motion. So there's lots of information that's still going to be out there.

11:40And I think the pressure is going to continue to mount to release more information. It is, I should say, a highly unusual circumstance here. It's highly unusual for the Attorney General of the United States to be asking a court to unseal grand jury testimony. But it's even more unusual for the President of the United States to be weighing in on that question. So we're in a circumstance here where there is not a lot of precedent to see how the courts may look at this information. Generally, the courts are reluctant to release this type of information, given the privacy concerns that are at stake here and the concept that it's simply unfair to release the names of individuals who may have been caught up in an investigation, but who are never ultimately charged with a crime.

12:26Is filing to get the grand jury transcripts more of a distraction? because the information that people seem to be looking for is not going to be found in grand jury transcripts, but rather in the files the Justice Department has. Given the mounting public pressure to release information in connection with this investigation, the decision by the Department of Justice to seek the unsealing of the grand jury testimony is somewhat unusual because that testimony is going to be focused on building the case against Jeffrey Epstein and the case against Ghislaine Maxwell, and specifically on the conduct that formed the basis of the criminal charges against them, which means it's a narrowly focused investigation, and the grand jury testimony is likewise going to be narrowly focused on the evidence that they had to present to the grand jury in order to obtain those criminal charges.

13:22The remainder of the files are going to be much more far-reaching. They're likely to involve other individuals and perhaps other activity that never made its way into either of those indictments. But then you raise the question of bringing in the names of victims and other individuals who were never charged with a crime and balancing that against the groundswell of public interest to release this information. How long could this process take? At the end of the day, the government's motion to release this grand jury testimony is likely to take some time. I think we can expect Judge Berman to take his time to go through the grand jury testimony and to consider what portions, if any, he is going to release.

14:07And then even if he does release information, it's likely it will not satisfy the public's desire to get more information about this case, because so much of that information is likely not information that was ever presented to a grand jury. It remains in the investigatory files of the DOJ. And the real question is, will that information ever be released? I guess all you can say is we shall see. Thanks so much, Bob. That's former federal prosecutor Robert Mintz of McCarter and English. Coming up next on the Bloomberg Law Show, we'll take a look at the top immigration issues, including the question of whether the Trump administration will be able to deny bond to all migrants who entered the country illegally.

14:53That means they could be in detention for months or even years as they fight their deportations. And a federal judge says ICE can't use racial profiling in carrying out arrests. I'm June Grosso, and you're listening to Bloomberg. This is the Bloomberg Tech Minute brought to you by ChatGPT. Now with ChatGPT work. I'm Carol Masser. Bill Gates Breakthrough Energy Ventures is betting on a cheaper way to produce clean jet fuel and made its first investment from a fund that is backed by Alaska Air, American, and several other carriers. The investment is aimed at accelerating the commercialization of clean aviation fuel.

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18:13The city of Los Angeles has been a focus of the Trump administration's immigration crackdown, with complaints that ICE is roaming around car washes, home depots and libraries, and targeting Spanish-speaking day laborers for arrest. Here's L.A. Mayor Karen Bass. When the administration came in, they said that they were going to go after violent gang members, drug dealers, human traffickers. I don't think that's what's happening at a day labor center in Home Depot. You know, how do you go from a drug den to a Home Depot parking lot that terrifies people and then they run out chasing them throughout the parking lot?

18:54Well, a federal judge has temporarily blocked ICE agents from using racial profiling to carry out indiscriminate immigration arrests. Joining me is an expert in immigration law, Leon Fresco, a partner at Holland & Knight. Leon, before we even get to the legal question, these ICE raids that the L.A. Times reported, that ICE agents have been sort of roaming around Home Depots and car washes, stopping brown-skinned Spanish-speaking day laborers and others to arrest on immigration charges. Is this the way ICE has normally operated, or is this something new? Well, there have been times in the last 25 years that ICE has operated in this way, but if one is looking at the time arc of the last 25 years and said, group them into two buckets, times that ICE has not operated this way and times that ICE has operated this way.

19:53Over the last 25 years, more often than not, ICE has not operated this way. ICE has tried to go after people with final orders of removal or people with criminal convictions or people in targeted operations where there is something known about the operation, such as that it's a business that exploits their workers or is involved in some sort of trafficking, etc. Now, there have been times, most notably in 2007, 2008, in the last part of the Bush administration, and then beginning points in the Trump administration of the first term, where ICE had started to act in this manner, going around essentially trying to find people it can actually apprehend and place to removal proceedings.

20:42And this is the new norm, I would say. It's not something that is very common over the last 25 years, but it is something that is within their mandate. They're permitted to go and try to find people who are not here with status and place them under arrest and place them into deportation proceedings and then actually deport them. Now, the problem is going to be the methods of how ICE operates. And this litigation is very fascinating in that this has been a debate between the pro-immigration enforcement people and the pro-what I would call relaxation on immigration enforcement people, where they've had this debate about what is it permissible for ICE to do in these operations?

21:32Are there limits to what it can do? And that's what was being debated in this case. And I think it's ultimately going to have to take the Supreme Court to adjudicate these issues. So Tom Holman, the border czar, has said, and echoing what the government attorney said in this case, that agents in deciding whether to stop a person can consider their location, their workplace, the particular work they're doing, clothing, etc. But the judge said that she found a sufficient amount of evidence that agents were using just that race, language, a person's vocation or the location they're at, such as a car wash, to form reasonable suspicion.

22:15And she ruled that ICE agents can't rely on those factors. Who do you think is right here? This is the most complicated area of the immigration law that one can imagine, because in every other area of the law, we don't allow our law enforcement to conduct law enforcement based on quote-unquote immutable factors because we don't like these sort of status crimes. We don't say, you know, go after only this race when it comes to this crime or go after that gender or go after people with a certain characteristic. We don't do it. It's illegal. It's not necessary. You can go after whatever the actual violation of the law is.

23:02So did you file your taxes? Did you steal from the store? Whatever it may be. So you don't have to do this profiling. And so it's easy to say, if you're profiling, it's illegal, and that's the end of it, because the profiling has nothing to do with the underlying offense. Is the car stolen? Did somebody steal? Did somebody not file some document? Whatever it may be. The problem in immigration is, this is a status offense. You're either here legally, or you're not here legally. So what are the indicia of a person who's not here legally? It is some of these things. Are you speaking in certain languages versus other languages?

23:43Are you engaging in behavior that looks like you're smuggling someone at that moment? That kind of thing. Now, obviously, these things can be taken too far. And for sure, that's the problem is if you're engaging in this profiling in a way where it's aggressive and it's all over the community and it's everywhere, and anybody who speaks a non-English language to their grandmother, who happens to be here legally, but she never learned English for whatever reason, but she's here legally, and now everybody's being arrested because an ICE agent hears somebody speaking to their grandmother in a different language or something, or ICE arrests a bunch of tourists here to see some soccer game or something because they don't speak the language, just like if I travel to Europe, I don't speak whatever language I'm in in my European country if I'm suddenly being confronted by an immigration officer.

24:35Those are all tough issues. And so the question starts to become how that enforcement comes into play. What are the constraints? What are not the constraints? And so I think what the group who is suing would say is, you have to be operating from a list of people you're looking for and go look for them. And then that's how you can enforce immigration law in America. That's basically what the group who is suing is saying. And what ICE is saying is that constrains us way too much because that takes time. And in addition, every time we try to make lists like this, we're being thwarted in various different ways.

25:18You You know, whether we try to make a list of criminals, the counties and the cities and the states who are, quote unquote, sanctuary jurisdictions don't allow us to make a list of criminals. They don't give us the names of people, so they make it harder for us to find those people. So we can't make a list of criminals in these places. If we try to get a list of people who are not using public benefits appropriately, we get thwarted by lawsuits that say you can't do that either. And so this is the problem is ICE is saying we need to be able to arrest somebody. And if people are making our life difficult in terms of the effort and the resources and the constraints to make these lists to go find people, then what we'd like to do is to be able to question people, essentially, when we have a reasonable suspicion that they're not here legally, and ask them to produce identification that says they're here legally.

26:14I mean, this becomes super complicated, especially sometimes if you're just a U.S. citizen, let's say, going for a jog. You don't have any legal duty when you're a U.S. citizen going for a jog to have any identification on you. But what if that means that you get arrested and you're put in detention for days or weeks until somebody figures out that you're in detention and can find the right document for you? So all of that becomes very complicated and messy, and the courts, I do not envy what they're going to have to try to do to ultimately come to a solution that's reasonable. I don't think the kind of injunction that was issued here will be allowed to ultimately remain in its full form, which is essentially that, I mean, it doesn't exactly say this, but what it is essentially saying is ICE has to know who they're going after before they go after them, meaning they have to say, here's a piece of paper called John Smith.

27:09I'm looking for John Smith. I'm going to apprehend John Smith, and I'm going to bring John Smith into detention. I don't think that ICE is going to be limited to just that. But the question is, what is ICE going to be limited to, if anything? And if it's not limited to anything, that will also create its own set of complexities. But I will say this, just if anybody's been paying attention to the Supreme Court over the last 10 or 20 years, they don't like cases where they sort of have to guess something up front and issue an injunction. They like what's called the as-applied challenges, where you can actually go to them and say a certain behavior and then say, is this behavior unconstitutional or not?