In short
Supreme Court oral arguments and immigration policy on whether asylum seekers stopped on the Mexican side of the U.S.-Mexico border have “arrived in the United States” for asylum eligibility (Nome v. Al Otrolado). The episode also covers DHS leadership (Mark Wayne Mullen sworn in), ICE use at airports during a shutdown, immigration judge removals, and a separate New Jersey U.S. attorney appointment dispute.
Guests/backgrounds
Leon Fresco, partner at Holland & Knight; former head of the Office of Immigration Litigation in the Obama administration. David Voriakis, Bloomberg legal reporter.
Key claims
Government argues asylum requires the asylum seeker’s body to be inside the U.S.; asylum seekers argue “arriving” includes reaching a port of entry/being presented for asylum even if physically on the Mexican side. Fresco predicts conservative justices may favor a bright-line physical-presence rule. He also discusses DHS implementation, ICE-at-airports operational consistency, and Article 2 removal of immigration judges.
Notable examples
hypotheticals about reaching the border wall, being halfway along the Rio Grande, crossing the Rio Grande, and being first/second in line at a port of entry; references to Haitian interdiction-at-sea cases. New Jersey example: Robert Fraser selected as U.S. attorney after illegal appointment rulings involving Alina Habba and a three-lawyer delegation.
Written by AI. May contain mistakes. Listen to the episode to check what was said.
Chapters
Tap a time to open that second in VOThe Asylum Seeker's Legal Dilemma
2:00 to 4:40
Understanding the legal framework surrounding asylum seekers at the U.S.-Mexico border.
“revolved around the interpretation of those words.”
Interpretation of 'Arriving in the U.S.'
4:40 to 7:10
Explore the debate on what constitutes arrival in the U.S. for asylum seekers.
“Leon, tell us about the issue in this case about asylum.”
The Role of the Supreme Court
7:10 to 9:30
Analyzing how the Supreme Court's decision could affect asylum policies.
“So the asylum statute uses the quotes arrives in or is, quote, physically present in the United States.”
Current Asylum Processing Challenges
9:30 to 12:20
Discussing the current challenges asylum seekers face at U.S. borders.
“Now, they may say, look, this is very cruel that the administration can just keep people out from the ports of entry when they're saying, go to the ports of entry, this has to be your solution.”
Future of Asylum Law and Policy
12:20 to 14:09
Speculating on the future implications of the Supreme Court's ruling for asylum seekers.
“There's still going to be a second case that comes to the Supreme Court.”
The Asylum Debate: Presidential Authority and Legal Limits
14:09 to 15:18
Explore the complexities of presidential power in asylum cases and its implications.
“Because where do we draw the line on where your body could be outside the U.S.?”
Mark Wayne Mullen's Appointment and DHS Direction
17:57 to 24:28
Discuss the implications of Mullen's leadership on DHS policies and operations.
“See website for full terms and conditions.”
ICE at Airports During Shutdown: Implications and Operations
24:28 to 28:00
Analyze the controversial deployment of ICE at airports amid the government shutdown.
“get-through security have been growing and growing, hours-long waits at some airports.”
Understanding the Role of Immigration Judges
28:00 to 29:59
Learn about the complexities of immigration judges and their authority under federal law.
“immigration judges and the judges are appealing.”
The Retirement of Gregory Bovino
30:00 to 32:46
Explore the implications of Gregory Bovino's retirement and his approach to immigration enforcement.
“where they're constantly in the court, you know, you go to immigration court, they say, I don't have authority to do anything.”
Show all 13 chapters
New Jersey's U.S. Attorney Situation
32:47 to 35:35
Discover the legal challenges and changes surrounding New Jersey's U.S. Attorney's Office.
“Leon, thank you for a tour de force tonight.”
Appointment of Robert Fraser
35:36 to 42:06
Learn about the appointment process of Robert Fraser as U.S. Attorney and its significance.
“A federal trial court has come to terms with the Justice Department on appointing a career prosecutor as New Jersey's U.S.”
Discussion on Robert Frazier's Selection
42:06 to 42:27
Learn about the implications of Robert Frazier's selection in the legal context.
“So one can infer that the White House and Pam Bondi are comfortable with this pick.”
Transcript
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1:32This is Bloomberg Law with June Grosso from Bloomberg Radio.
1:39David Voreacos:Can the Trump administration turn away asylum seekers at the U.S.-Mexico border? Federal law says that any non-citizen who, quote, arrives in the United States can apply for asylum. So the answer turns on what it means to arrive in the United States. And most of the oral arguments at the Supreme Court today revolved around the interpretation of those words. The government's attorney, Vivek Suri, said a person has to have crossed the border in order to arrive in the United States. You can't arrive in the United States while you're still standing in Mexico. That should be the end of this case. But Liberal Justice Ketanji Brown-Jackson challenged that interpretation.
2:26David Voreacos:Imagine a person who has a placard on their body as they approach the border that says, you know, I would like entry. I'm being persecuted in Mexico. Your suggestion that the United States would say, unless you can figure out a way to illegally cross, we're not going to entertain that claim, seems very peculiar. And the attorney arguing on behalf of asylum seekers, Kelsey Cochran, said arriving in the United States simply meant making it to a port of entry until a change in policy 10 years ago. From 1917 to 2016, 99 years, there was not a single example of a turn back. So what was happening is people would come through the port.
3:11At that point when they were in the port, they would be inspected and processing would happen. So it's an unusual scenario we have here where we have the officers standing there and turning people back.
3:19David Voreacos:The justices pressed her with questions about whether an asylum seeker had arrived in the United States if they reached the border wall or made it almost halfway through the Rio Grande or crossed the Rio Grande or were first in the line waiting to enter a port of entry or second in the line. Here are Justices Amy Coney Barrett and Neil Gorsuch. How do you know under your theory when the person is close enough that we could say they've, they have arrives in or arrived in the destination? I mean, what if there's a queue and they're far back? Or what if they arrive not at a port of entry? How close do you have to be to the border?
3:57David Voreacos:Could you say that someone arrives in the United States if they're at a portion of the border that does not have a port of entry? Like, what is it if it's not crossing the physical border? What is the magic thing or the dispositive thing that we're looking for where we say, ah, now that person, we can say, arrives in the United States. How come somebody who's in the line isn't in? I mean, if the whole point is to make sure that people who are attempting to get into the country have the opportunity to file asylum claims and they've made it all the way, why does it matter he's second in line? The high court's answers could reshape the government's asylum policy.
4:37David Voreacos:Joining me is an expert in immigration law, Leon Fresco, a partner at Holland & Knight. Leon, tell us about the issue in this case about asylum. So in this case, which is called Nome v. Al Otrolado, the issue is whether a non-citizen who is stopped on the Mexican side of the U.S.-Mexican border, are they considered someone under the statute who arrived in the United States for the purposes of being allowed to get asylum processing under the immigration laws. So here's how this works. So there's two kinds of people who tried to apply for asylum. There's the people who tried to sneak across the border.
5:17And so for those people, traditionally for the last 30, 40 years or so, there was this understanding that yes, once you got across the border, you could make a claim for asylum. Now, Now, there's a separate case and a separate issue involved with President Trump basically using the travel ban authority to say, no, if you cross the border, you can't get asylum. But that's not an issue in this case. This case is about whenever you ask people what you're supposed to do when you really want asylum. The issue is they say, well, go to a port of entry and present yourself as a proper person. and don't create chaos and all kinds of confusion by running across the border, go to a port of entry.
6:04So what happens is you go to a port of entry. If the government refuses to ever see you, it just keeps you on the Mexican side, which is what's currently happening. Then you never get to apply for asylum either. So the question that this case tries to deal with is what happens to those individuals who've clearly presented themselves and said, I want asylum, but their human body is on the Mexican side of the border. Does the U.S. government have an obligation to still process these individuals for asylum? That's the question. And the Trump administration says, no, if your body's on the Mexican side of the border, you don't get to apply for asylum.
6:45And the litigants who were from this organization called Al Ultralado said, no, that's not correct. and the Ninth Circuit said the same thing, that once you've presented yourself for asylum, you've done what's needed. It's not really mattering if your body is a few feet away from the U.S. territorial border.
7:05David Voreacos:Explain the questions over the interpretation of the phrase arrives in the United States. So the asylum statute uses the quotes arrives in or is, quote, physically present in the United States. So if you were just to do, again, an artificial intelligence or a dictionary or something like that, then that would be the end of this because then that would mean if you arrived in, your body would have to be inside the United States. Or if you were physically present in the United States, that would mean your body would have to be inside the United States. But then there's a separate concept in the immigration law called an arriving alien.
7:47And the idea is if you are an arriving alien and you're apprehended or somehow in the custody of the government or even the situational awareness of the government, that you are an arriving alien. You're someone who can apply for asylum. Yes, you're kept in detention during this time, but you can apply for asylum. The law actually uses this word arriving alien. So the question is, why would the law use the term arriving alien if that didn't mean anything? If the sort of process of arriving didn't shield you in some way from being able to get asylum if the government knew about you and apprehended you in some way, whether the apprehension was inside the United States or to prevent you from coming inside of the United States.
8:36And so that's the sort of debate or dispute here is once the government knows about you and is doing something to stop you, then that should be the end of it in terms of what the plaintiffs, the immigrants rights groups think. They think, hey, that's the answer here. You are an arriving alien. You've been apprehended. You should now get to apply for asylum. And the government says, yeah, but that's not how that works. The arriving alien is sort of for the apprehension of the person and then the deportation of the person and the detention. But the actual act of applying for asylum requires an actual arrival and requires physical presence in the United States.
9:16And so I do think that because much of this court is textualist, so you have three very strong textualists on the court, but then you also have people who are asking practical questions amongst the conservative justices, that I think out of the six conservative justices, you're probably likely to find at least five votes, probably for the government's argument that in order to be eligible for asylum, your human body actually has to be inside the United States. Now, they may say, look, this is very cruel that the administration can just keep people out from the ports of entry when they're saying, go to the ports of entry, this has to be your solution.
10:00But they may say that's something for the Congress to have to adjudicate in terms of passing a bill that lets a certain amount of people get screened each day or does something else, but it's not an issue for the courts to decide. I think that's where this is likely going, but we'll have to wait and see.
10:20David Voreacos:The justices posed all these hypotheticals to determine what point an asylum seeker had to have reached in order to be considered to have arrived in the United States. So was it enough if they reached the border wall or made it almost halfway through the Rio Grande or cross the Rio Grande. Or suppose they were first in line waiting to enter a port of entry. Or suppose they were last in line. So is the court going to come down with a decision that says, okay, here's the point where you arrive and can ask for asylum? That's correct. I mean, the problem is it's very hard to draw a bright line rule.
10:59The easiest bright line rule to draw, which is why I think this is going to be appealing to the conservative justices, is that your body is inside the United States. Once you draw the line at something else, then the question is, where do you draw that line? And this is why they talked a lot about the Haitian interdiction cases where Haitians were interdicted at sea. And the question was, did those cases require asylum? And they did not. Those were considered extraterritorial cases and that the asylum laws didn't apply to the Haitians that were interdicted at sea. And so the idea is, where do you draw this line?
11:42It's hard to sort of say if the government is aware of you, because the government can be aware of you in many different ways, through satellite, through drones, through some other thing. If you're in Mexico and you're being stopped from coming in, that doesn't mean you're in custody. You're free to leave. You could go anywhere else. And so I don't know how you would draw this line. But what's going to be interesting is I do think, assuming that the immigrants rights groups lose here on that basis, that it's sort of hard to draw a line. And so we might as well read the statute the way it says, which is arrives and that your body has to be in the U.S.
12:20There's still going to be a second case that comes to the Supreme Court. well when you do arrive and you do apply for asylum can the Trump administration still ban you anyway and I think it's going to be hard for the court if they rule against the immigrants here to rule against them yet again a second time and say there's just literally no way to apply for asylum ever in America so we'll see but I do think the difficulty they're having with this case foreshadows a potential triumph for the immigrants rights groups in this second case about what happens when people do actually arrive. But again, we'll just have to wait and see.
12:59David Voreacos:What's happening now? Because during the oral arguments, they said that the administration wasn't using this policy of, they call it metering, wasn't using this policy right now. Correct. They're banning everybody from asylum. So that's what they're doing right now, is they're saying you're just completely banned from seeking asylum at the southern border of the United States. But the point is that that argument rests on the fact that the reason you're banned is because you're crossing illegally. So if you're crossing illegally, that's what triggers the ban. So the idea is go to a port of entry, but when you go to a port of entry, you're not being allowed into the United States.
13:43So that's the problem. There's no place to currently apply. And so what this case would remedy is they would remedy this issue that you couldn't go to a port of entry to apply for asylum. Now, again, I don't think it's actually going to remedy anything because I don't think the Supreme Court is going to rule that there's a way to define this statute that makes any sense other than that your body has to be in the U.S. in order to have a right for asylum. Because where do we draw the line on where your body could be outside the U.S.? But what I do think is when they then get to the second case about, well, what about when your body is in the United States?
14:21Can the president still unilaterally ban you? then they're going to have to look at that within the context of what they decided here and see that this really would mean that a president could ignore all of these statutes that talk about asylum and it's pages and pages and pages of statutes and regulation could just ignore all of them and say this whole thing doesn't exist anymore. And I do think that will probably give the court some pause, although who knows because I do think it's also natural to say under the previous scenario we had a million people crossing the border each year. Now we don't have any, so one certainly produces a more manageable result than the other, and the Supreme Court, by changing the way that the ban works, could potentially spark another million people at the border, which they probably wouldn't want to do.
15:11The question is, do they also want to just allow a 100 percent ban on asylum cases? So we'll have to wait and see.
15:18David Voreacos:Stay with me, Leon. Coming up next, Mark Wayne Mullen was sworn in today as the new Secretary of Homeland Security. Our change is ahead. This is Bloomberg. Innovation is what gets your business to market, and Wasabi is designed to give every business a shot at competition. How? Break free from skyrocketing storage costs and unpredictable egress fees from old and top-heavy legacy providers, You know, the big guys. Wasabi is the world's hottest cloud storage company and the go-to provider for professional and collegiate sports teams and leagues around the world. And here's why. Innovation. From Wasabi's AI-enabled intelligent media storage, Wasabi Air, to the industry's only cloud storage service with triple protection against cyber criminals, data deletion, and ransomware, the world's top companies trust Wasabi.
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17:59David Voreacos:Mark Wayne Mullen was sworn in today at the White House as the new Secretary of Homeland Security. President Trump said he has a lot of confidence in his new DHS secretary. With Secretary Mullen at DHS, we will continue our record-setting efforts to deport these illegal alien criminals from our country, and we are doing it at record levels, despite a very unfair court system. I've been talking to Leon Fresco, a partner at Holland & Knight. He was the former head of the Office of Immigration Litigation in the Obama administration. Leon, I've been wondering whether it would be helpful if the person who leads the Department of Homeland Security actually has some background or experience in immigration.
18:45Well, that's complicated because actually the first Homeland Security secretary was Tom Ridge, who was the governor of Pennsylvania. And then the second one was Michael Chertoff, who had been a judge. Yes, he had some law enforcement background. You had Janet Napolitano, who was the governor of Arizona. You had Jay Johnson, who was an attorney at the Defense Department. The only one who worked in immigration was, quite frankly, Ali Mayorkas. And, you know, that, depending on who you talked to, was either good or terrible. So I don't know necessarily that experience is the issue. But what really matters is the judgment, the intellectual curiosity, the getting of good people to advise you.
19:27And I do think in terms of this, there's a couple of things that you can look toward that might be helpful. I don't think the policies are substantively going to change. I'm almost certain of that. But I do think to the extent that there's an ability to exercise the policies without being gratuitously inflammatory, I do think that will be helpful. And we'll see if a Secretary Mullen does that. I mean, he claimed that he would be doing that, but we'll have to see, you know, and to the extent that that can happen on an agency-wide basis, that the social media be dialed down a little bit, that the rhetoric be dialed down a little bit, all of that helps in terms of not creating the sort of markers of inflammation that you see around the country.
20:15So that will be one. The other thing he said that was interesting is he would require judicial warrants to enter homes or businesses, which was something that the previous secretary didn't want to say, that he would work with the Congress when they were concerned about specific cases. so we'll see if that ends up happening and you know he may end up getting involved in this DHS shutdown negotiation to try to see if there's a way forward to try to see if this can finally be ended so that you know TSA and everything else can come back so we'll see this will be his first test if he's able to come up with an interesting response to the DHS shutdown if he's part of the negotiations, then I think you could expect some interesting, helpful changes.
21:03But if he's sort of divorced from this round of negotiations and he doesn't take a role in solving it, then I do think you'll pretty much then end up seeing more of the same as we move forward.
21:14David Voreacos:Because the policy itself comes from the administration, right? And in this case, Stephen Miller? Correct. Most of the immigration policy comes from Stephen Miller and comes from the White House and people who work for Stephen Miller. And so the idea was that there would be sort of an operational person implementing this, but they wouldn't be the ones formulating the policy. But look, at the end of the day, once you're the Secretary of Homeland Security, you get a lot of say in what gets implemented and how. It can't be done without you. So the only thing they can do is fire you, which is quite inconvenient to have to keep firing secretaries of Homeland Security.
21:53So Secretary Mullen will have the ability to implement policies that he wants and to not implement policies that he doesn't want. But the question is, will he be willing to take on some of those battles? Does he have the acumen to end up doing that in a way that doesn't get him fired? Those are all very important questions and I think there's nothing to do but watch because no one can really know how that's going to play out. But one thing he can do for sure is to insist that everything that comes out of the department take more of a tone that's not designed in its purpose to be inflammatory. And I do think that would be a tremendous already benefit as opposed to trying, you know, you have social media posts that talk in a way that's very aggressive or you have rhetoric that talks in a way that's very aggressive.
22:46None of those words or none of that rhetoric changes the actual number of people you remove. And in fact, they could actually shrink the number of people you remove. And so why say it if it doesn't actually help the operational mission?
23:00David Voreacos:Have they actually stopped with the very aggressive tactics that we saw, you know, in Minneapolis and Chicago? And have they sort of dialed that back as the border czar said? they would? At the moment, they're focused on the cities where they have cooperation for the rest of 2026, because they don't sort of want this to insert itself as an election issue. They're trying to just focus on creating their numbers of removals through these jurisdictions where they have cooperation and trying to develop cooperation in more serious cases. They're trying to do that in New York and in Los Angeles and in Minnesota, where they say, look, with some of these very serious criminals.
23:44Would you please cooperate with us in helping them to get removed by notifying us where they are and helping us apprehend them? And I do think they're making inroads there. And the question is, do they just want to stay with that for the rest of the year or not? But I do think their plan is, once 2027 rolls around, or even late 2026 after the midterm election, to come back and sort of ramp this up again. And that's where we're going to have to see where Secretary Mullen goes, if he actually will allow that, or will he just keep what will have been going on for nine months previous to that by then?
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24:20Will he say, look, this is working, we're getting pretty good numbers, we're not inflaming people, why not just keep doing this?
24:27David Voreacos:ICE agents have been deployed to 14 airports today to help during the shutdown, as lines to get-through security have been growing and growing, hours-long waits at some airports. Minority Leader Chuck Schumer came out against it during a speech on the Senate floor today. ICE needs to leave the airports now. Trump needs to pay TSA workers now and push Republicans to reach a deal. No intimidation forces at our airports. No more chaos at checkpoints. Enough is enough. What's your take on using ICE at the airports during the shutdown? Well, there's a lot to say about this ICE at the airports thing.
25:15And so let's just go through it step by step. So first, the question is, will they be performing ICE functions or TSA functions? So if you start with that question, let's say they're actually performing ICE functions, which is if they're there to actually apprehend and then lead to the eventual removal of people without immigration status at the airport well theoretically that is consistent with the real id requirements you're not supposed to be able to fly if you don't have a real id and so if you are there without a real id and you're trying to fly then theoretically you are exposing yourself to removal so in that area that would just be a debate about whether you should have ice doing that or not but that seems to be not an operationally inconsistent thing people may not like that ice is there But as long as they're not in masks or creating all kinds of havoc, it would be theoretically consistent, like I said, with the Real ID Act.
26:12There's a different question if ICE is scanning your luggage and checking your pockets and your keys and all of this. The issue there is, one, there's a TSA training issue, which is you'd have to get that training to know how to use that machine and what to say to people, what to do with disabled people, what to do with elderly people, etc. So I don't know that you could just implement that in a day or two, but I don't think they're doing that anyway. But the third point is, yes, it's true the TSA agents aren't getting paid, but even when the TSA agents were getting paid, that was considered one of the lowest morale jobs in the government.
26:51If you pay any attention when you go through the TSA screening process, many times the TSA are talking about the concept of when is my next break? Is it in five minutes? Is it in eight minutes? You know, they're very attuned to not being there at that because the job is just, you know, it's this job of just repetition and stress and repetition. And so the job is a low morale job. So the point is, if you're trying to ramp up ICE numbers and you're moving them into a job that is a low morale job, I don't know how that's consistent with your desire to increase ICE numbers. So I don't think that would be a in a long term thing.
27:39If ICE was actually going to do TSA work, they would end up with a lot of dissatisfied, low morale ICE employees. So we'll just have to see how that plays out.
27:50David Voreacos:Let's talk for a minute about immigration judges, because the Trump administration fired nearly 100 immigration judges last year. And over the weekend, the Merit Systems Protection Board, which is composed of all Republicans, endorsed the Trump administration's argument that Article 2 permits the president to remove these immigration judges and the judges are appealing. This sounds like some of the arguments that we've heard before. Right. This is the whole doctrine of inferior officers, which has been used in many different contexts in the administration where President Trump has tried to use his authority under the Constitution, under Article 2, to fire inferior officers.
28:34And the question is just whether an immigration judge who is an employee, here's just to lay this out for your audience, the immigration judge is not a normal judge. They're not picked by the president and confirmed by the Senate. An immigration judge answers an online ad, and they put their resume in the online ad system, and they go through a hiring process and a six-week training, and then they're an immigration judge. And so the question is, is that person considered an inferior officer who exercises significant authority and can actually set some precedence in immigration law? Or are they considered someone who's so inferior that they actually have civil services protections?
29:19and the Merit System Protection Board says, no, these people do exercise significant authority under federal law, so they can be removed by the president. And I do think it's interesting because there's two kinds of immigration judges. There's ones that are called normal immigration judges and there's a second one called appellate immigration judges. And so I think this argument is much stronger for the appellate immigration judges because they do set precedents that then have to be followed by the lower immigration judges. So I do think in their situation, it's probably much easier to argue that they exercise significant authority under federal law.
29:58But under the normal immigration judge, where they're constantly in the court, you know, you go to immigration court, they say, I don't have authority to do anything. I have to just follow what I'm being told. And now they have a lot of AI that's sort of guiding them through what they're supposed to do in a hearing, because a lot of them are new and a lot of them don't even have experience in immigration law. The question is, if you're basically almost an AI judge at this point, what do you do vis-a-vis, are you really someone exercising any kind of significant authority? So I think there, that's going to be a harder one.
30:31And I think the federal circuit may be more amenable to saying those people do have merit systems protection board protection.
30:39David Voreacos:Finally, Leon, this week, Gregory Bovino is retiring. I'm sure to applause from advocates for migrants. He was the face of the administration's harsh crackdown on immigration that led to the deaths of two U.S. citizens by federal agents. Do you think he was forced out, forced to retire? Well, what happens is when you reach a certain age, you can retire and have all of your benefits. And so the role he wanted to play was essentially the Tom Holman role where you know Tom Holman had been the borders are and then he sort of was a little bit downgraded both by Secretary Noem and by circumstances in the news related to him but then when these things happened in Minnesota people brought back Tom Holman and and even Secretary Mullen has said he wants to bring back Tom Holman and work with him and so Tom Holman's thing has always been, look, the mission of I should be go and find people who we know are undocumented and deport them.
31:46Don't just start sweeping the streets, grabbing everybody you can and asking whether they're here legally or not. He's always been uncomfortable with that. Now, that doesn't mean he doesn't want the ultimate same outcome of every undocumented person being deported. He does, but he wants to do that within a context that you go after people at their home or at their address or wherever that you know already are undocumented. And so you're fulfilling that mission. And so Bovino didn't want that. He wanted to just get more efficient, so to speak, and just grab people wherever they were. And that would, in his view, lead to much quicker either both removals or self-removals because people wouldn't want to be living in an environment where they could be apprehended at any minute.
32:31So when that policy was taken away and his leadership of that policy was taken away, then it was no longer, in his view, sort of desirable to keep working in the administration. And so that happened to a lot of people. They retire in that situation.
32:47David Voreacos:Leon, thank you for a tour de force tonight. We covered so many immigration topics. I really appreciate your insights. That's Leon Fresco of Holland and Knight. Coming up next, a New Jersey court reaches a deal with the Department of Justice on New Jersey's next U.S. attorney. This is Bloomberg. Innovation is what gets your business to market. And Wasabi is designed to give every business a shot at competition. How? Break free from skyrocketing storage costs and unpredictable egress fees from old and top-heavy legacy providers. You know, the big guys. Wasabi is the world's hottest cloud storage company and the go-to provider for professional and collegiate sports teams and leagues around the world.
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35:37David Voreacos:A federal trial court has come to terms with the Justice Department on appointing a career prosecutor as New Jersey's U.S. attorney, substituting him for the Trump administration's three-person leadership structure that's been ruled illegal. Robert Fraser, a senior trial counsel working organized crime cases out of Newark, has been picked as the office's new U.S. attorney, and unlike in prior recent instances, when judicially appointed U.S. attorneys were rapidly fired by the White House, Fraser's selection was approved by DOJ. Joining me is David Voriakis, Bloomberg legal reporter. David, remind us about the saga that started with the appointment of Alina Habba, President Trump's former personal attorney, as U.S.
36:30David Voreacos:attorney for New Jersey. Haba was appointed on a 120-day basis and some criminal defendants in New Jersey challenged the legal authority of her to prosecute them after that 120 days expired. A judge came in from Pennsylvania and sitting by special designation decided that she was illegally appointed. And he put that on hold until an appeals panel ruled. Then an appeals panel in December agreed that her appointment was illegal and she stepped down. So then in December, Attorney General Pam Bondi decides to delegate the duties of running the U.S. Attorney's Office to three lawyers. I mean, I've never heard of that before.
37:23David Voreacos:So tell us what the federal judge, Matthew Brann, ruled about that. Judge Brann, who also handled the earlier Habba case, ruled that this was a similarly flawed appointment and that their appointment was also illegal. and he also put that ruling on hold. Since then, there's been a lot of controversy and confusion over who was running the U.S. Attorney's Office in New Jersey. So there was a routine sentencing in a child pornography case in which the defense lawyers challenged the legal authority of the arrangement in New Jersey, and the judge expressed a great deal of impatience and sharply criticized the line prosecutor who appeared in court and wanted an explanation on what were the plans for running the U.S.
38:25Attorney's Office because there had been no real explanation out of the office about who was going to lead the office going forward after Judge Brand ruled that the arrangement was illegal.
38:37David Voreacos:Before we get into what happened here, explain why federal judges are making decisions about U.S. attorneys. There's a federal law that if there's a vacancy in a U.S. Attorney's Office, that the judges in a district, in this case, the state of New Jersey, would get together and appoint someone to run the office as the U.S. Attorney until the Senate confirms a presidential nominee. It's happened a number of times in U.S. history around the country. And they did that in New Jersey to replace Alina Habba. And the choice by the judges, Desiree Grace, who had been the number two in the office, was immediately fired by Attorney General Pam Bondi.
39:31David Voreacos:So did the federal judges then negotiate with the Justice Department to come to an agreement this time? It appears that the judges must have reached an agreement with the Justice Department on the latest pick because the Justice Department and Alina Habba, who now works as a special assistant, if you will, for Pam Bondi, embraced the pick. And, you know, that pick, Robert Frazier, was not immediately fired as Desiree Grace had been and as two other judicially appointed U.S. attorneys in other districts also experienced. The Justice Department said the Department of Justice thanks the district court for working with the department to appoint Robert Fraser to serve as U.S.
40:23David Voreacos:attorney so that once again, criminal prosecutions can resume without needless challenge or delay on behalf of the people of New Jersey. So tell us a little about Robert Fraser. Robert Fraser is a 35-year veteran of prosecutor's office. He worked in a local prosecutor's office as well as the U.S. attorney's office. He has a lot of experience in gang cases and in organized crime cases. He has a reputation as being very well regarded by his peers and by the judges, that he's quite meticulous in his preparation, his investigations, and his trial work, and that he's someone who's expected to unite the office and return them to the days when it was a high-functioning place.
41:23David Voreacos:Now, court-selected U.S. attorneys in eastern Virginia and northern New York were terminated by the White House on the same day that they'd been chosen. So is the White House sort of saying, we want to be consulted on the U.S. attorneys? It would appear that the White House has made peace with the judges in New Jersey on this choice. In the previous instances in which the judges ruled against Alina Habba and in which the judges district-wide chose Desiree Grace, the Justice Department sharply criticized those judges as activists who were working against the Trump agenda. That did not happen with the selection of Robert Frazier.
42:10So one can infer that the White House and Pam Bondi are comfortable with this pick.
42:16David Voreacos:Well, we'll see if this kind of negotiation works in the case of other U.S. attorneys. Thanks so much, David. That's Bloomberg Legal Reporter David Voriakis. 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.bloomberg.com slash podcast slash law. And remember to tune into the Bloomberg Law Show every weeknight at 10 p.m. Wall Street time. I'm June Grosso, and you're listening to Bloomberg.
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From the publisher
Immigration law expert Leon Fresco, a partner at Holland & Knight, discusses the Supreme Court oral arguments over whether the Trump administration can turn away asylum seekers at the border. Then David Voreacos, Bloomberg legal reporter, discusses a federal trial court’s agreement with the Justice Department for the new US Attorney in New Jersey. June Grasso hosts.
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