Judge on Trial for Aiding Migrant & School Strip Searches for Minor Offenses

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2:14Learn more at thehartford.com slash risk mitigation. Policies provided by Hartford Fire Insurance Company and its property and casualty affiliates, Hartford, Connecticut. This is Bloomberg Law with June Grosso from Bloomberg Radio. Hands off, Dugan! Hands off, Dugan! Hands off, Dugan! A crowd outside the Milwaukee courthouse protested the trial of County Circuit Court Judge Hannah Dugan on two federal charges for allegedly obstructing an official Department of Homeland Security removal proceeding by helping a migrant evade arrest. It's a first-of-its-kind case, testing the limits for a judge interfering in the Trump administration's efforts to deport migrants.

3:04Here's Nick Ramos, executive director of Wisconsin Democracy Campaign. We are optimistic because we believe in the Constitution. We believe in the power of solidarity through working people, but we are deeply concerned. We see the chilling effect that occurs when a federal administration attempts to consolidate power and move with impunity. It's unusual, to say the least, for the Department of Justice to prosecute a sitting state judge. But then this same Department of Justice sued the entire bench of federal judges in Maryland. My guest is Leon Fresco, a partner at Holland and Knight. He was the former head of the Office of Immigration Litigation during the Obama administration.

3:49Leon, tell us about the prosecution's case against Judge Dugan. Well, the judge is on trial for basically impeding and obstructing ICE in ICE's ability to arrest a person that they were looking for at that time who was going through criminal proceedings in the Milwaukee County Court. So this whole trial so far has been trying to determine that what the judge did in terms of letting this individual out through the back door, the jury door, that all of that was irregular, that none of it had ever been done before. And that because of that, the judge's intent was clearly to impede ICE from arresting people in the court.

4:31Now, the problem is, because there's a trial, it's unclear if the judge will be able to take advantage of a lot of the legal defenses about control over their courtroom and ability to manage their proceedings and ICE interfering with all that. This seems to just now be a trial about whether the judge actually had the intent to block ICE from arresting this individual. And so we'll have to see if basically what the judge is going to try to do is a juror nullification play. Because the facts and the law are pretty clear here where the facts show that the judge acted in a way the judge had never acted before.

5:10and that the judge's intent was to have the individual Flores Ruiz not arrested by ICE. So this may just end up being a pure journalification claim. Yeah, so the prosecution presented evidence that the judge had told a court reporter, I'll do it, I'll get the heat, and also audio tapes of what happened in the courtroom that day. And you could hear the judge talking to the court staff, suggesting the defendant could, quote, go down the stairs away from the agents. Yeah, absolutely. If the facts of this case are really what's at trial here, and you have sort of what I would call robot jurors who are not trying to look at the whole issue from a 360 degree perspective, they would probably find that the judge would be guilty here because the evidence appears to be overwhelming that the judge knew what she was doing was illegal and did it anyway to not have this individual Eduardo Flores Ruiz arrested by ICE.

6:11He's subsequently been deported already. But the question is, is the judge, like I said, trying to rely on juror nullification? And we've seen this in other contexts, in other prosecutions with the sandwich guy here in D.C. and with, you know, potentially Jim Comey or Letitia James. You know, you're seeing juries not wanting to make these convictions. And so maybe this is what the judge is hoping for here. The fact pattern becomes a little better for the judge because the defense attorney, instead of taking his client out by the stairs, went into the hallway, which was less than 12 feet from the main door to the judge's courtroom.

6:50And so the judge's lawyer said in the opening statements, quote, 11 feet, 10 inches. That's what she's on trial for. So is that sort of a way to give the jury an out? Correct. That's what they're trying to do is they're trying to give the jury an ability to say look this is all so insignificant why are you going to throw someone in prison over this and you know the subtext which obviously they're not going to be allowed to say in a court is prison is a place where you keep criminals who are going to endanger you and so do you really want to send this person to prison because there's not any danger to the community from having this judge outside of prison and so that's what they're leaning for they're definitely leaning for the journalification angle, and we're just going to have to wait and see if that's what happens.

7:36So these ICE agents are stationed outside the courtroom, sometimes in the courtrooms. I mean, what's wrong with the judge saying, go out this way? I don't think these ICE agents should be here. Well, I think the question is this. If the ICE agents are in a place where a warrant is required and they don't have a warrant, then there's absolutely no problem with the judge directing ICE not to arrest people or saying that ICE is in the wrong location or ICE needs to leave or helping someone to maintain their rights in a situation where ICE is acting against their rights because ICE doesn't have a warrant.

8:15But the problem is here, ICE was trying to detain this individual in a public area where it didn't need a warrant. And because of that, the judge knew this is the problem with the recordings here the judge certainly knew that the judge was impeding and that the judge didn't actually have a great legal argument for why the judge was gonna act in the manner to allow this individual to essentially escape the courthouse without ice it would have been one thing for the judge to confront ice and say you're acting illegally and I'm using my authority as the judge to order you to leave the courthouse, etc.

8:58But the judge didn't do it that way. Perhaps the judge, had she thought it through, might have done it that way to issue an order and order ICE to go leave and say they're acting illegally. And then it would have been a fight about who had jurisdiction over that courthouse. But that's not what happened here. The judge basically indicates through her speech that she knows she's acting unlawfully and does it anyway. Of course, the defendant does not have to testify. She has a Fifth Amendment right not to. But is this a case where the jury might say, she's a judge? Shouldn't we hear from her? Well, I think absolutely.

9:33This is the kind of case where if she doesn't testify, the jury will say, what the heck? I mean, she must have had some explanation for doing what she did. We'd want to hear it. But of course, they are not allowed to draw that inference. It's just something that human beings do, again, because they're not AI robots. But they're not allowed to say it anywhere. They're not allowed to actually base a jury decision on the fact that she didn't testify. But sure, I'm sure they'll want to say this is a judge. the judge should be able to explain why she did what she did and why her intent wasn't to evade the ICE agents.

10:06So all of that will accrue against her if she doesn't end up testifying. But she just may really be banking on the fact that, look, at the end of the day, I'm in a big city and there's enough people in a big city who will not want to prosecute a judge and put a judge in prison over something like this that I can get one or two holdouts and that'll be the end of the story. And I think if I was a gambling man, that that's actually pretty likely. Even if the facts of the law may not necessarily be on her side, I do think it seems pretty likely to me that you'll get one or two holdouts that just won't want to put this judge in jail.

10:43Do you think it makes a difference that the migrant here, Eduardo Flores Ruiz, was facing domestic battery charges? I think it doesn't help her. There's no doubt about it. And the other thing that doesn't help is there's nothing that they can sort of put in there that mitigates this individual or says why this individual was sympathetic in any way, shape or form, because none of that evidence would be deemed relevant to the criminal trial issue. So it's definitely not helpful. But to the extent that, unfortunately, you see this. I mean, the best example I've ever seen of this was the Johnny Depp trial, where the lawyers after lunch would respond to whatever was being made on social media because they would think that the jurors were looking at social media and they wanted to confront whatever was being made.

11:33Jurors are these days tending to take matters into their own hands, even if they're not supposed to. And so we'll have to see what they end up finding about this judge and everything else. So let's also talk about immigration judges. Eight immigration judges in New York were recently terminated in one day. A San Francisco judge was fired in the middle of a complicated asylum hearing. Overall, about 100 judges out of 700 have been let go. And many of the cases involve judges with high rates of asylum approvals or even backgrounds representing migrants. Is this legal for them to fire the judges based on that?

12:13Well, the courts so far have been very deferential to the Department of Justice in terms of their ability to fire these immigration judges. And in fact, there's been this case law about if the president and the attorney general can't fire someone who's an inferior judge like this, then that judge isn't constitutionally appointed in the first place. So it appears in terms of if you were to take that case law along its logical conclusion, it appears that the firing of these judges is permitted for pretty much any reason, unless it's some discriminatory reason or something else like that. But if it's an ideological thing that that would be permitted, the problem that it's creating is it's taking a lot of experience away from the immigration bench.

13:02None of these judges had a 100 percent approval rate. Many of them had, let's say, 50 percent approval rating, 40 percent, 60 percent, which may have been higher than their other colleagues on the court, but weren't 100 percent. And the reason why I bring that up is, well, those other 40 % that they were deporting on a particular day now aren't being deported. There's no hearings for these people, and those people will have hearings scheduled one year or two years from now. And sure, they may be in front of a new judge that may have a 90 % refusal rate or a 95 % refusal rate, but it may still be a year or two from now.

13:41So those are tough sort of choices that the Trump administration is trying to make about short term versus long term. But I mean, you look at their social media advertising and they're saying, please come join the immigration court and be a quote unquote deportation judge, which is not their job. Their job is to look for the law and the facts and decide if deportation is the correct remedy or if giving asylum or cancellation of removal or something else is the correct remedy. And so the fact that they're advertising those positions as deportation judges, I don't know if there's going to be a long-term negative connotation or inference that comes from that where those decisions that are issued by those judges may not have any force of law.

14:27or if an appellate court ends up saying that that judge was predisposed to grant deportation because that's why they were joining the court. So I don't know why that line of social media advertising is there, but nevertheless, that's clearly what they're trying to do. There are some members of Congress that are trying to put in some basic standards for these future hires of immigration judges, whether it be a number of years of experience practicing immigration law or a number of years of experience on the bench or anything else, but we'll have to wait and see if any of that can actually get into an appropriations bill.

15:06But at the moment, a lot of these hearings, they're basically being done with judges that are not necessarily conversant in immigration law, and that creates its own problems because if they make errors, then you waste years on appeal, and then the case bounces back and you've accomplished nothing anyway. So all of those things have to be weighed and considered together. Coming up next, why the case against Kilmar Abrego-Garcia is starting all over again. This is Bloomberg. So there's a lot of noise about AI, but time's too tight for more promises. So let's talk about results. At IBM, we work with our employees to integrate technology right into the systems they need.

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18:15Brex is the intelligent finance platform that eliminates that work before it starts. AI agents that handle the manual stuff automatically, so your team can spend their time on what actually compounds. It's time to get Brex AF. Learn more at brex.com slash AF. The Homeland Security Department has leaned into a recruiting pitch that calls for candidates to bring down the hammer on criminal illegal aliens and, quote, defend your communities, your culture, your very way of life. I've been talking to immigration law expert Leon Fresco of Holland and Knight. I saw the numbers that only about 36 percent of asylum cases were successful during Biden's last full year in office.

18:59That seems pretty low. Well, the problem is the large majority of people coming into the United States under the Biden administration were just trying to articulate an asylum case in order to get in the country, but they never had the expectation that they would actually ever have to show up in court any day and ask for asylum. A lot of these asylum cases were very weak at the end of the day because they were either in countries, for instance, if you were coming from El Salvador, El Salvador has actually fixed a lot of its gang violence problems, and so it's very hard now to get asylum from a place like El Salvador, or if you were coming from countries such as Venezuela, you know, you would theoretically easy, okay, you have this Maduro, and so you might be a political dissident, but at the end of the day, you had to prove what were you doing in Venezuela that was noteworthy and famous that you would actually be persecuted as opposed to just coming for economic opportunity.

19:59So a lot of Venezuelan cases were being denied. And all across the world, basically, people were getting into the United States with threshold cases. But when they were actually subject to scrutiny and evidence, nobody had actually done anything in these countries that had led them to be persecuted. And so that's why you saw the numbers so low. It's not that the adjudications were low because if there was an emphasis on making these cases denied, it's that a lot of the cases shouldn't have been filed in the first place, but were filed as a means to remain in the United States. So speaking of immigration judges, Kilmar Abrego Garcia, he was willing to go to Costa Rica.

20:43Why wasn't the government willing to send him there? Why they wanted to send him to someplace where he didn't want to go? This is a very complicated issue because this is why Kilmar Abrego Garcia is still in the country, which is there's a lot of machinations going on right now about what stage in his case Kilmar Abrego Garcia is in, because they just recently found out that they had never actually ordered him deported. So he never actually had a deportation order. And so he was deported without a deportation order. So no one knew what the reason was for his detention. And so they had to issue what was called the Nucprotung removal order, which means that it was backdated 11 years and now they're basically starting his whole asylum case again from the beginning from scratch and all of this can be circumvented by the government of the united states sending abrigo garcia to costa rica and they just won't do it because they want to say that if you try to circumvent the united states laws in some manner contrary to what the u.s government wants, then the U.S.

21:50government will make the determination of where you go. And so they don't want Kimar Abrego Garcia going to Costa Rica. And this is one of those cases where I don't really understand it from the standpoint of if your view is that he's a threat to the American public or that he's going to be a drain of taxpayer resources or something, then sending him to Costa Rica solves that problem. But nevertheless, we are where we are. Now, the Trump administration has increased the number of countries whose citizens face a full or partial travel ban on entry to the U.S. from 19 to 39. And of the 20 countries facing new travel restrictions, 16 are in Africa and all 39 have majority non-white populations.

22:40Nearly half are Muslim majority countries. I mean, is there any logical reason? Well, the reasons that they cite in the proclamation, so let's go step by step. The reasons that they cite in the proclamation are ones related to an insufficient vetting that those countries have where they cannot give us enough information that we can decide if someone is safe or not. plus they cite that each of those countries has high visa refusal rate now there are a couple of Caribbean countries in there which is Antigua and Barbuda and Dominica where what they say about those countries is look we've been trying to tell you to knock it off in terms of selling passports from those countries because what would happen is people who were banned from other countries would get a passport from Dominica or from Antigua and they would say, hey, oh, I'm a member now of that country.

23:33I'm not a passport holder of, you know, Syria or Iran or something. And they were circumventing U.S. law through those passports. So now they've had to say, if you're not going to stop selling citizenship by investing in these countries, then we're going to ban you too. So those are the two Caribbean countries that were banned. So they were not banned for visa overstay or for lack of vetting but all the other countries were banned for visa overstay rates and lack of vetting but there are countries in other places in the world that have higher visa overstay rates and have other vetting issues and in the end what you realize is there are some countries on these lists that the united states want something from and they're using this to try to get those specific changes in whether it be that they accept people that the United States is trying to deport or that they become third country places that the United States can deport people or whether there's some other diplomatic agreement that they want to reach with some of these countries.

24:36You do see some of that here. But again, most of this is related to visa overstay rates, lack of vetting, and then again, the idea that the president has that the individuals coming from these places are not, in his view, on balance, helping the United States and its interests, as opposed to what he thinks they're doing, which is harming the United States and their interests. I would note the most fascinating thing of this is that some of the countries that were banned actually are in the World Cup. Senegal is in the World Cup, Cote d 'Ivoire in the World Cup. And I wonder what's going to happen there because all the visitor visas have been banned.

25:17So are those fans not going to be allowed to visit the World Cup, even if they're very wealthy and, you know, prestigious people in those countries? So they do have an exception for the athletes, obviously, and the coaches, but they don't have any exception for the fans. So I do wonder what's going to happen with some of those individuals. And what about the requirement that tourists from 42 countries have to submit social media data? Well, this is going to end up being rolled out universally. And it's part of now what the issue is, is this. We have something called the Visa Waiver Program. It's known as ESTA, but it's really the Visa Waiver Program.

25:55ESTA is the name of the database. It's a travel authorization system that checks people to determine whether they actually need to go in and actually ask for a visa or whether their background is clean enough that they can come in. And so what's happened is the government is trying to basically harmonize the current visa application system, which is if you apply for a visa anywhere around the world, in any country, for any reason, you have to put in your social media background in order to get a visa. So now what I'm trying to say is even for the people who are coming from Norway or Sweden or Denmark or wherever, they're going to have to put in their social media, even though they're not applying for a visa, just for the electronic authorization to enter the United States.

26:44And they're obviously investing a lot of money on a lot of these software vetting programs and AI programs to try to determine if they can find something of note to reject people. but the more onerous that they start making these applications, you know, if it ends up being something that you have to fill out for two hours, which is essentially if all of the things that they're proposing to implement, all of the familial schedule and work schedule and education schedule and social media schedule and everything else you're supposed to write in there, if all of that ends up getting implemented, it might take you an hour or two, depending on if the system is functional or not, to have to fill out those applications, you may decide, you know what, visiting the U.S.

27:27isn't worth it for me anymore. I won't go somewhere else. Why do I need to deal with all of this? Also, in addition, it's, I think, useful to note that it's different to say if somebody's going to come here and live here, well, maybe you want to be careful what kind of person you're bringing in. but at the end of the day I certainly am critical of countries when I visit them around the world I say look this thing doesn't make any sense what you're doing this thing makes sense we all are, we're human beings it would be very strange if someone of wealth or of means or whatever who just wants to take a trip and vacation for a weekend in the US suddenly can't come in because they've said something that is a normal criticism of the United States that you wouldn't care about because in the end they're not actually posing a danger to the United States.

28:17That's the kind of thing that seems very strange. I mean, our government currently has a policy that says we're very angry at Europe for patrolling its social media and saying that people don't have free speech in their social media. And then at the same time, we're potentially doing the same thing here, where if a European criticizes the US, we won't let them in. And so those are things I think we need to balance and we need to do it the right way because travel is a very delicate ecosystem. And if people decide they're not going to travel to the United States, you start seeing things like you're seeing in Las Vegas where nobody's showing up and the unemployment rate is skyrocketing and people don't want to travel there.

28:59It's great to have you as always, Leon. That's Leon Fresco of Holland and Knight. Coming up next, how strip searches in schools traumatize kids over minor offenses. This is Bloomberg. Support for the show comes from Public. Public is an investing platform that offers access to stocks, options, bonds, and crypto. And they've also integrated AI with tools that can assist investors in building customized portfolios. One of these tools is called Generated Assets. It allows you to turn your ideas into investable indexes. So let's say you're interested in something specific like biotech companies with high R &D spend, small cap stocks with improving operating margins, or the S &P 500 minus high debt companies, chances are there isn't an ETF that fits your exact criteria.