Weekend Law: Trump's $1.8B Fund, Luigi Mangione Evidence & ICE Barred

22:36Leon Fresco:Yeah, that's a good question. The federal judge allowed everything in, as you said. There was nothing that was suppressed by the federal judge in the second trial. But the state court judge here, I think, was somewhat troubled by what went on at the McDonald's. And I think here, when you look at the decision by the state court judge, he put great weight on the fact that the police officers began to search through the backpack. And when they found the gun magazine, they immediately stopped. They also found the notebook, but allegedly did not look in to see what the writings were. But they stopped searching at that point.

23:10Leon Fresco:And the court seemed to give certain weight to the fact that they held off searching at that point and then did not continue to search until Mr. Mangione was in custody back at the police station. And then the search was done in an inventory search, not at a search incident to arrest at the McDonald's. So defense attorneys companies often, I don't know, always, but very often make motions to have evidence suppressed. Have you ever seen a case where the judge was, I don't know, gutsy enough to throw out all the evidence from a tainted search? I mean, it seems like these are just uphill battles, no matter what the facts are.

23:48Leon Fresco:Well, they are uphill battles. And you're absolutely right that this is the type of motion that is made in every criminal case. Whenever there is a search, whether it's done by search warrant or a search innocent to arrest and evidence is obtained as a result of that search that's critical to the prosecution, the first thing defense lawyers are going to do is to try to suppress that evidence because if that evidence doesn't come in at trial, in certain cases it can be very difficult for prosecutors to make their case. This case, given all the notoriety and the publicity surrounding it, put enormous weight on the court in making a decision because a judge would be put in a difficult circumstance if they ruled to suppress key evidence in a case like this where there's so much publicity.

24:34Leon Fresco:But in this case, the state court judge certainly spent a long time. There was an extensive hearing. There were days of testimony. The judge sat through hours and hours of body cam video footage and heard testimony from many law enforcement officers on the scene at the time of the arrest. So the judge spent a considerable amount of time considering this, And then it took him months to finally render a decision on this. But at the end of the day, while he gave some small victory to the defense, he did largely rule in favor of the prosecution. And if you're the prosecutor and you have the alleged murder weapon and you have the notebook containing the alleged manifesto, you're feeling pretty good about your chances of conviction at the end of a trial.

25:14Let's talk about the statements Mangione made to police at the McDonald's that the defense wanted suppressed. And Judge Carroll also parsed those down to the minute using the officer's body cam footage. As Miranda warnings were not given until some seconds after 9.48 in the morning, those statements made shortly before that in response to improper custodial questions

25:41Leon Fresco:that were not merely a request for pedigree information will be suppressed. Explain his decision, Bob. After hearing extensive testimony from law enforcement about the circumstances surrounding the arrest and the context in which those statements were made, in other words, were they made before or after the witness was given his Miranda warnings, before or after the witness was in custody? And the court ultimately decided that statements made by Mr. Mangione at the McDonald's before he was actually in custody were going to be allowed. But he did find that once he decided to no longer talk with law enforcement, that law enforcement should have stopped questioning him.

26:24Leon Fresco:And statements he made in response to that questioning after he was in custody will not be permitted at the trial. Some of the statements that will be suppressed include an officer asking Mangione why he had lied about his name and whether he had a fake ID. The defense so far has focused, at least in court, on the suppression of evidence. We don't know what kind of defense they'll mount at trial, but do you think that jury nullification will be part of it? Well, there's a huge difference between being a prosecutor and being a defense lawyer. Prosecutors have the burden of proof. It's beyond a reasonable doubt.

27:00Leon Fresco:It's the highest standard in our legal system. And so their job is to present overwhelming evidence that the defendant is guilty. The defense, on the other hand, doesn't have to present anything. They don't have to present any witnesses. They have no burden of proof whatsoever. And so what they will typically do is not necessarily present a counter narrative. In other words, a different version of events. but they will try to poke holes in the government's case. And so what they'll do is they'll see the way the case goes in a trial. They'll cross-examine the government's witnesses. And if they can find any area where the government may have a weakness, they try to exploit that and ultimately argue to the jury that there's reasonable doubt here, that the government has not met its burden.

27:45Leon Fresco:So I suspect what will happen here is that the defense will be largely based on the government's not meeting its burden of proof. But at the same time, I think we can certainly expect the undercurrents of a jury nullification argument. And that is basically arguing to jurors that even if the defendant committed the crime, you shouldn't convict him for some other reason. It's not a legal defense. It's more of an emotional reaction by jurors. And this case has already generated a ground spoil of support for Luigi Mangione, which is surprising. because of the position he allegedly took with regard to health care in this country and specifically with regard to health insurers.

28:30Leon Fresco:So I think you can expect to see the defense play that card and play that up at trial in the hopes that at least one member of the jury may be sympathetic to him and to his cause and to be willing to overlook some of the evidence the prosecutors have at trial. And if they can get even one juror to agree with them, they will at least get a mistrial and prosecutors will have to try the case all over again. His trial is set to begin on September 8th. Thanks so much, Bob. That's Robert Mintz of McCarter in English. Running a small business takes everything you've got. But with Chase for Business, you're not alone.

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31:07you prepare for volatility. But even the best strategies can't prevent every bad day. For more than 75 years, Cincinnati Insurance has helped individuals and businesses navigate tough moments with expertise, personal attention, and independent agents who focus on relationships, not transactions. The Cincinnati Insurance Companies. Let them make your bad day better. Find an agent at c-i-n-f-i-n dot com. For decades, ICE refrained from making civil arrests at immigration courthouses. But that changed in May of 2025 when ICE issued a new policy that allowed agents to arrest non-citizens as they were appearing for scheduled hearings.

31:54The policy led to protests and some ugly scenes at immigration courts in Manhattan, like the handcuffing and arrest of New York City Comptroller Brad Lander in the hallway outside a courtroom as he was trying to escort a migrant whose case had just been dismissed last November. Take him in. Take him in. Take him in. You don't have the authority to arrest U.S. citizens. You don't have the authority to arrest U.S. citizens. Can you say that? You're obstructing.

32:25Leon Fresco:You don't have that. I'm not obstructing. I'm standing right here in the hallway. I have to see the judicial warrant. Lander was later released and all charges against him were dropped. That scene will not be revisited in New York City now that a federal judge has ruled that the three immigration courthouses in Manhattan are off limits to ICE officers making arrests. My guest is Leon Fresco, a partner at Holland & Knight and the former head of the Office of immigration litigation in the Obama administration. Leon, tell us about Judge Castell's order, temporary order pending the outcome of litigation that challenges ICE's policy of making arrests at immigration courts.

33:06So the current state of affairs in New York City is if you go to one of the immigration courthouses in New York City, ICE is not allowed to arrest you unless you either have serious offenses in terms of a criminal history, or you have a final order of removal, or you're a national security or public safety risk. And so this all comes from the idea that people were being deterred from going into immigration court to have their immigration hearings because they were worried that ICE was going to arrest them when they would to show up at the immigration court because that was actually happening during the time period where there was the arrest quota, 3 ,000 people a day.

33:52Arresting 3 ,000 people a day is not so easy. And so a lot of the places where people were getting arrested were the places where they were most likely to be, which were at ICE check-ins and immigration court. So you knew people were going there, but the point was you didn't want to deter people from going there because those were the key points of the throughput of the immigration system. But previously, in September, Judge Castell had refused to stop ICE arrests at courthouses. So this judge had originally not wanted to enjoin ICE from arresting people in immigration court because the government had made the argument previously that there was an ICE guidance that was issued on May 27, 2025 that actually allowed them to do this so that they had considered the matter, they had reviewed it, they investigated it, and they said, yes, so according to this memo, we can arrest people at immigration court.

34:55And so the judge said, well, look, you had a policy basis for conducting these arrests. I'm not going to enjoin them. But then just recently, the Department of Justice actually went back to the court and said to the court, sorry about that. You remember when we told you that we had a memo that considered the need to go to immigration courts and have arrests? Just kidding. We didn't actually have a memo like that. It didn't actually apply to immigration courts, and so we're sorry. And so because there was no memo that actually considered this issue, then the judge said, well, then you clearly didn't use your obligations under the Administrative Procedure Act to actually consider this.

35:37So I'm not going to let you do this while the case is pending. I think the judge probably more frustrated about how this was done rather than the state of actual law. But because of the sort of, I don't know whether you want to call it omission or whatever you want to call it, the judge said no more arrests in immigration courts in New York while this case is pending. Yeah, I mean, that was a startling admission by the U.S. Attorney's Office. And basically, they blamed it on ICE. So the judge said that a revision in his order was needed to correct a clear error and prevent a manifest injustice.

36:14Was it a legal error by ICE that caused that to happen? I don't know exactly, but I actually have a theory, June, because I was involved in this for many years at the Department of Justice. And so here's what happens. ICE coordinates extremely well with the Department of Justice when the cases are pretty much in any district outside of New York City, because those are all handled by the Department of Justice, Civil Division, Office of Immigration Litigation, where I was the head. And so everything can be coordinated. But in New York, there's a joke called the Sovereign District of New York that you don't tell the U.S.

36:53attorneys there what to do. They don't listen to anything going on in Washington. They do their own thing. So as a result of that, they have to correspond with ICE, and it's not clear who at ICE they're corresponding with, a New York person, some random person in D.C. who's not in the know. And so many times you would see, I would call this one of the Achilles heels or weaknesses of the entire litigation platform of the Department of Justice is if you sued in New York, you'd have a completely different strategy case approach. Whatever you're doing in New York doesn't apply anywhere else. And so you almost have these two random, completely different things going on.

37:36And so it's very easy in that scenario for the U.S. Attorney's Office in New York to not actually know anything about what's going on at ICE and just be told by some nice New York person, oh yeah, this memo covers immigration courts. That's not a surprising scenario when I hear it. The judge was surprised though. Yeah, well, the judge, your viewers are getting inside knowledge here in terms of very few people understand this disconnect that goes on between New York and the rest of the country. So the judge is not going to understand why the Department of Justice writ large, because that's all the judge knows is this is the Department of Justice, doesn't have the correct information since this is the government.

38:16So the government, quote unquote, should have the correct information. But as we all know, there's not one government. There's a lot of people in the government. And depending on who you talk to in the government, you might hear something that's not correct. And so while this shouldn't happen, and it's not something trivial, it's something I'm not surprised to hear has occurred, because that's the kind of thing that unless and until one day the U.S. Attorney's Office in New York actually wants to let their immigration cases get handled by the National Civil Division so that all the immigration cases are handled harmoniously, you're going to get potential situations like this.

38:56So the judge handed down the decision on Monday. On Tuesday, ICE violated the order. They arrested a 21-year-old Honduran at 26 Federal Plaza, which is one of the three immigration courthouses in Manhattan that the judge had ruled were off limits for arrests. And according to the New York Times, a man who worked with the immigration assistance program tried to hand the ICE officers a copy of the decision and they refused to take it. And one told him that the agency didn't care. Is that just a blatant violation of a court order? Again, I don't want to give excuses. I just want to say sort of how these things work.

39:38So a judge issues an order on a Monday, and on a Tuesday, there's an arrest. It's not like ICE is some integrated artificial intelligence system where every human being is plugged in and suddenly knows all of America's case law instantaneously when that case law is introduced. So what happens is ICE clearly isn't implementing this memo with sufficient rapidity, and you had an officer who probably on Monday already knew, I'm going to arrest this individual because, you know, they say that they're a dangerous gang member. Who knows if this is true or not? I don't know. But if they really think they have a dangerous gang member in their sights, all the better for them to arrest this person, to make sure that they're not walking around.

40:27But it turns out that they don't know the court order, then people tell them the court order. The problem from the perspective of the government is just people randomly handing an ICE agent a court order. That ICE agent isn't an attorney. What they know about the law is sort of what's in their training materials. And so it's very complicated because they're not just going to read a court order and know the significance of what that court order is, what it's telling them to do. So you ended up with this very unfortunate situation and probably there will be contempt hearings about it. But just another set of facts of I get how it led to this.

41:06It shouldn't have led to this. There's no excuse for it. It's a violation of the court order. But you can understand how these ICE agents who are not attorneys are given very specific guidance. You can only do X, Y, Z. They continue to operate as they've been operating. And nothing will deter them from their orders until the same person who gave them their prior order gives them a new order. And I should note that in their petition, the lawyers for the man who was arrested said he'd never been convicted of a crime. Let's turn now to the underlying case before Judge Castell, which is a lawsuit by two New York-based nonprofits challenging the Trump administration guidance that broadens the circumstances in which civil immigration arrests can be made in or near a courthouse and rolls back Biden-error guidance restricting courthouse arrests.

42:02and the judge has found that there's a substantial likelihood of showing that the arrest policy is arbitrary and capricious. What's your take on how successful this challenge will be? Well, I think it's going to be tough. These lawsuits have been filed all around the country and nobody's been able to get an injunction that is of any significant oomph to it that has really stopped this. Now, I do think in this case in New York, it may be that given where this administration is right now, where it's not trying to ruffle any more feathers between now and the election, and then it's sort of gearing up for a post-election immigration enforcement roundup, that it may not do anything for now.

42:46I could see them just litigating this kind of in a slow track, low profile for now. But I don't think that the statutory scheme dissuades the Department of Homeland Security legally from conducting these arrests. The problem is if people stop showing up to immigration court, at some point, the immigration enforcement personnel have to make a decision. Do they want to start having to enforce all of these what are called in absentia removal orders, which is if you don't show up to court, you're like ordered by default to be removed. And then people will litigate these on an individual basis. And all of that takes more time than just getting the actual removal order in the first place.

43:34So you almost want to try to figure out is the juice worth the squeeze of these arrests? And I don't know what they're going to decide there, because if they're really focused on an arrest quota, removals be damned, then they'll keep doing the arrests because this is the way to raise the arrest quota. But if they're really looking at what is the way to get the highest number of completely enforceable, unappealable removal orders, then you wouldn't start arresting people in court because you leave yourself vulnerable to these due process claims. I guess we'll see what ICE and DHS decide to do after the midterms.

44:10Thanks for joining me, Leon. That's Leon Fresco of Holland and Knight. 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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