In short
The episode focuses on why D.C. U.S. Attorney Jeanine Pirro convened a rare special grand jury, what that suggests about potential investigations, and related DOJ/ICE policy issues.
Guest backgrounds
Barbara McQuaid, professor at the University of Michigan Law School and former U.S. attorney for the Eastern District of Michigan.
Key claims
Special grand juries are common in large-population districts but rare in D.C.; they can support long “enterprise” investigations. McQuaid says Pirro’s timing and past failures raise concerns about political motives and the risk of a grand jury report “name-and-shame” effect even without indictments. She also argues that special grand jury reports can be issued with only a preponderance-of-evidence standard, which is lower than what prosecutors need to prove guilt beyond a reasonable doubt. She discusses that the reflecting pool case against David Hearn was legally weak because the pool was already damaged, and criticizes Pirro’s public statements.
Notable examples
Jerome Powell subpoena controversy; the grand jury declining to indict six Democratic lawmakers over a video about refusing illegal orders; a jury refusing to convict a man accused of throwing a Subway sandwich at an ICE officer; Florida reporting about investigations into origins of the 2016 Russia-Trump probe (“Crossfire Hurricane”); ICE “stun glove” plans ($10–$20M) after fatal shootings; mandatory detention bond litigation (circuit split).
Written by AI. May contain mistakes. Listen to the episode to check what was said.
Chapters
Tap a time to open that second in VOTrump's Discontent with Jeanine Pirro
0:00 to 1:00
Discussion of President Trump's disappointment with Jeanine Pirro's actions.
“So there's a lot of noise about AI, but time's too tight for more promises.”
Trump's Discontent with Jeanine Pirro
1:50 to 2:30
Discussion of President Trump's disappointment with Jeanine Pirro's actions.
“I was disappointed with Jeanine Pirro, really disappointed with Jeanine Pirro.”
Special Grand Jury Unusual in D.C.
2:30 to 3:37
Barbara McQuaid explains the rarity of convening a special grand jury in D.C.
“A federal judge quashing a grand jury subpoena for former Federal Reserve Chair Jerome Powell.”
Purpose and Function of Special Grand Juries
3:37 to 6:34
Understanding the functions and history of special grand juries in investigations.
“In my former district, for example, the Eastern District of Michigan, we always had a special grand jury that was ongoing.”
Concerns About Potential Abuse of Grand Jury Process
6:34 to 10:36
Discussion on concerns over politicization and potential abuse of the grand jury process.
“You know, we've been reading about, what do they call it, the grand conspiracy investigation that's occurring in Florida.”
The Role of Evidence in Grand Jury Reports
10:36 to 14:01
Exploring how evidence is evaluated in the context of grand jury reports.
“Yes, and I think that is concerning as well.”
Understanding the Grand Jury Process
14:01 to 16:30
Learn about the standards and implications of convening a special grand jury.
“But the principles of criminal prosecution say that a prosecutor should only seek an indictment if they believe they can prove the case beyond a reasonable doubt, that very highest standard.”
Understanding the Grand Jury Process
17:48 to 19:09
Learn about the standards and implications of convening a special grand jury.
“Everyone's talking about how AI is transforming work, especially in sales.”
Legal Implications of Indicting Fauci
19:17 to 28:01
Discuss the likelihood and implications of potential charges against Dr. Fauci.
“On July 29th, we had the Homeland Security Committee making a referral to the Justice Department to prosecute him for invoking his Fifth Amendment rights.”
Exploring Non-Lethal Force in Law Enforcement
28:01 to 29:27
Discussing the implications of using non-lethal force by ICE officers.
“Or do they actually end up getting used in lieu of deadly force.”
Show all 17 chapters
Concerns Over Aggressive Tactics by ICE Officers
29:28 to 31:39
Examining recent incidents and the need for better training for ICE agents.
“Because we're at a point now where we've had the two recent fatal shootings by ICE officers in Texas and Maine, and there are videos surfacing showing their aggressive tactics.”
Mandatory Detention Policy and Its Legal Challenges
31:40 to 35:34
Analyzing the implications of the mandatory detention policy and the legal battles surrounding it.
“New York Attorney General Letitia James said the state was reviewing the purchase agreement for possible avenues for a lawsuit.”
Textual Interpretations in Immigration Law
35:35 to 39:20
Discussing the judicial interpretations of immigration statutes regarding detention.
“That means anybody who's trying to get legal status.”
ICE's Use of Non-Lethal Force Devices
42:20 to 48:08
Exploration of ICE's controversial use of shock gloves and their implications.
“ICE plans to spend between$10 and$20 million to outfit officers and agents with, quote, conductive distraction and de-escalation devices.”
Mandatory Detention Policy in Immigration
48:08 to 54:06
Discussion on the legal implications of the mandatory detention policy for immigrants.
“a taser, there's really not much difference between the glove and a taser at the end of the day.”
Mandatory Detention Policy in Immigration
55:02 to 55:28
Discussion on the legal implications of the mandatory detention policy for immigrants.
“If you've ever waited on a refill or couldn't schedule an appointment, you get it.”
Mandatory Detention Policy in Immigration
55:32 to 56:00
Discussion on the legal implications of the mandatory detention policy for immigrants.
“While the landscape shifts, one thing remains the same, the thrill of closing a deal.”
Transcript
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1:43This is Bloomberg Law with June Grosso from Bloomberg Radio. About two weeks ago, President Trump made it clear that he wasn't happy with D.C. U.S. attorney Jeanine Pirro. I was disappointed with Jeanine Pirro, really disappointed with Jeanine Pirro. She folded like an umbrella. That disappointment was the result of Pirro dropping charges against a former Olympian for vandalizing the reflecting pool. But the D.C. U.S. attorney's office has had other high-profile failures. A grand jury refusing to indict six Democratic lawmakers who released a video advising service members they should reject illegal orders.
2:30A federal judge quashing a grand jury subpoena for former Federal Reserve Chair Jerome Powell. And of course, a trial jury refusing to convict the man accused of throwing a Subway sandwich at an ICE officer of even a misdemeanor. So reporting from the Washington Post that Pirro has convened a rare special grand jury has raised eyebrows over her intentions. Joining me is Barbara McQuaid, a professor at the University of Michigan Law School and the former U.S. attorney for the Eastern District of Michigan. Barb, how unusual is it for a U.S. attorney's office to convene a special grand jury? In many districts, it's not unusual at all.
3:15In fact, in districts with a population of more than 4 million people, it's mandatory that there be a special grand jury. The District of Columbia has a population below 4 million. And although it conducts long-term investigations, which is the purpose of a special grand jury, it's rarely done in D.C. So this is unusual, which is why I think it has caught the attention of many observers. Tell us about some former special grand juries and what they were used for. In my former district, for example, the Eastern District of Michigan, we always had a special grand jury that was ongoing. So a regular grand jury sits for six months.
3:51So they hear short cases, a one-count bank robbery, a one-count felon in possession case, where the evidence can be presented all in one sitting or maybe over just a couple of weeks. and the grand jury sort of heard all they need to hear and is ready to make a decision to either return or decline to return an indictment. A special grand jury sits for 18 months. And so that allows them to participate in longer term investigations. They were originally created for organized crime investigations. So if you're investigating a mob case, it might be that you need to first use the grand jury to obtain lots of documents.
4:24Once you get those, maybe you need to bring in a witness or a cooperating witness and compel them to testify. And based on the information you get there, one step leads to another. And it can take many, many months to put together one of those cases. It can also be extended to up to 36 months for longer cases. And since they began in the late 1960s, they've now been expanded to public corruption cases, national security cases, any case that might take longer than six months to complete. That's the purpose of them in other districts. Suppose that they wanted to investigate Jerome Powell again. Would that be enough to convene a special grand jury or does it have to be more than that?
5:04Let's say a series of cases that fall along similar lines, something bigger than just the investigation of one person. It usually is. So I don't know. I think one of the reasons people have pointed to Jerome Powell is because the attorney assigned to the case is Stephen Vander Veldin. And he is someone who was assigned to the Jerome Powell investigation. He is also the lawyer assigned to the case that attempted to indict the six members of Congress for participating in a video where they simply restated accurately the law of the duty of military members to refuse an illegal order. And so I think because of his role, he also spent 34 years in the Westchester County District Attorney's Office working for, in part, Janine Pirro.
5:51So she brought him on board. She has spoken very highly of his skills as a prosecutor and investigator and seems to be a real Pirro loyalist. And so I think that's another reason that people are concerned about this. And so it seems like what you would use this for, convene this for, would be a larger, longer term investigation. They're sometimes referred to by prosecutors as enterprise investigations because you might be looking at organized criminal activity with more than just one participant. If you thought you could indict a case in six months on just a single individual with a single count or one scheme, it probably would be unnecessary to convene a special grand jury.
6:30So this strikes me as a larger enterprise investigation, most likely. You know, we've been reading about, what do they call it, the grand conspiracy investigation that's occurring in Florida. It would seem this would be the kind of thing you might expect a special grand jury to be convened for. Can you tell us about the Florida investigation? Yeah, we don't know all the details, of course, because grand jury investigations are by nature secret. secret, but the reporting by some of the witnesses who have received grand jury subpoenas has indicated that there is an investigation into the origins of the 2016 investigation into connections between Russia and the Trump campaign.
7:09That was sometimes referred to as crossfire hurricane investigation. And by the way, those names that the FBI generates as the names just come from a computer because they don't want anybody to be tipped off onto what they're really looking at. And so they generate two random words. And so Crossfire Hurricane was the one that was investigating ties between Russia and the Trump campaign. And the grand conspiracy, I suppose, is that this was all just some cooked up effort by the so-called deep state. John Brennan seems to be at the center of it. He was the director of national intelligence. Jim Comey, who was the head of the FBI at the time, there seems to be some theory that there was a grand conspiracy among them to take down Donald Trump.
7:53Of course, that wasn't publicly announced during the election. It strikes me as something that is baseless in light of the fact that we have seen two inspector general investigations, the John Durham special counsel investigation, congressional investigations that have turned up no wrongdoing in those cases. But that, based on reporting, has been occurring in Florida. You could imagine something similar or maybe akin to that investigation occurring as part of the special investigation. But of course, we don't know. Could be something perfectly legitimate. Janine Pirro's office hasn't come close to delivering on what the president wants.
8:32She came close to being fired for dropping the charges against the Olympian for allegedly vandalizing the reflecting pool. But also you mentioned the case with the six lawmakers and Jerome Powell. Could it be that she's just reinvestigating those cases? It's quite possible. You know, we really don't know what this is. By their nature, grand juries are secret. And for good reason. The idea is you don't want to compromise an investigation by announcing to the world that you're investigating. It could cause people to destroy documents or tamper with witnesses or flee or otherwise compromise an investigation.
9:10So and even harm the reputation of the person under investigation if it should turn out that no charges are ever filed. So we may not know, but oftentimes hints spill out because witnesses and their lawyers start talking to the press. They want to be able to sort of tell their side of the story in the court of public opinion. And so for that reason, sometimes we see these leaks. Sometimes people suspect that it's members of the grand jury or the court or the prosecutors who are leaking. In my experience, it's usually the lawyer for someone who's been called before the grand jury because they want to make it clear that they're a witness and not a target of the grand jury and be the first to kind of tell their story.
9:49So we don't know. It is possible that they're reviewing some of these prior cases. Could be something completely different. Could be preparing for some criminal investigation relating to the upcoming elections. I don't know. The timing of it, though, also concerns people because it comes right after Todd Blanche is confirmed and right after Jeanine Pirro falls into disfavor for dismissing the case against David Hearn in the reflecting pool case. So I think, you know, some see it as an effort to make good and please the president. But, of course, we really don't know exactly what's going on. Another concern some people have is because the special grand jury can issue a report at the end of the investigation, even if the prosecutors don't bring charges against anyone in particular.
10:34So you could have a report out there. Yes, and I think that is concerning as well. If you're acting in good faith, most often grand juries do not issue a report, but they could. They could issue something similar to what Robert Mueller did at the conclusion of his investigation. Usually it's written by the prosecutor who is leading it, in this case, Stephen van der Velden, to discuss what they found, even if it doesn't result in charges. So one could imagine, this would be, in my opinion, an abuse of the process, But one could imagine an effort to bring some witnesses to testify based on some conspiracy theory.
11:10The grand jury ultimately declines to issue any charges, but a report gets issued that does dirty up somebody politically. So that would be another concern about an abuse here. But there's this longstanding presumption of regularity when it comes to the Justice Department that we assume good faith. We assume they are using their tools appropriately. But, of course, many judges have found just the opposite in this administration. So I think that's why people are concerned. And prosecutors only have to show that there is a preponderance of evidence of wrongdoing. So it's a really low standard to bring out one of these grand jury reports.
11:46Yes, a report would really just be, you know, they were, as I said, they were formed for the purpose of organized crime. And I think the idea was that even if you couldn't get an indictment against everybody, or maybe you did, you could give the district sort of a state of the district where you stand on organized crime, so that the public could be educated about something that was happening in the shadows. And as I said, I'm not sure I've ever seen one of these things, but they are authorized to do it. And so I suppose some of the concern is that even if there is insufficient evidence to bring a case, there could be this effort to dirty people up.
12:22Remember Ed Martin? He was somebody who was at one time the interim U.S. attorney in the District of Columbia. He then got appointed to be the head of the weaponization task force and the head of the office of the pardon attorney. I think he's still there as the pardon attorney, but he's become very quiet in recent days after his efforts to indict Letitia James that seemed to fall apart. He said something really interesting when he first took on those roles, which was, we're going to name and shame people, even if we don't have the evidence to convict them, because that's what the public cares about.
12:56That is a distortion of the Justice Department's mission, which is to bring cases only if you believe the evidence is sufficient to obtain and support a conviction on appeal. And so the idea that you would just use it for the purpose of naming and shaming seems like a violation of DOJ's policy guidelines, the principles of federal prosecution to avoid engaging in partisan politics. So I worry a little bit about that aspect of this, this ability to issue a report. Is there any protection in the fact that a judge has to decide that there is a preponderance of evidence of wrongdoing before signing off on the issuance of a report from the grand jury?
13:37Yes, I think that is a check. But of course, a preponderance of the evidence is much less than the standard that prosecutors would use to bring an indictment, even though the grand jury may bring an indictment based only on probable cause, which is a level actually below preponderance of the evidence. Preponderance of the evidence is kind of 51 percent. Probable cause doesn't have a number attached to it, but it just means reasonable grounds to believe that a crime has been committed by this person. And so it's a lowish standard. But the principles of criminal prosecution say that a prosecutor should only seek an indictment if they believe they can prove the case beyond a reasonable doubt, that very highest standard.
14:17And so the judge will apply the law. They're not applying their opinion about whether they think this is a good thing or a bad thing. But if there's a preponderance of the evidence, 51 percent, even if it could never be proved beyond a reasonable doubt, means that that could become public information. And so as a former prosecutor, I worry about that a little bit. Prosecutors are trained to be very circumspect with filing charges and to bring them only if they believe that the case can be proved beyond a reasonable doubt because of the recognition of the awesome power of a prosecutor to ruin someone's life, not only to take away their liberty, but to take away their reputation.
14:52And I think a report could do just that without the other part of having evidence beyond a reasonable doubt. As I understand it, the D.C. District Chief Judge, Judge James Boesberg, has to approve the convening of a special grand jury. I mean, is there any standard that he uses or is that just a pro forma? Yeah, I think it's pretty pro forma. You know, I suppose it's there to avoid any abuse. So imagine a U.S. attorney wanted to convene 30 special grand juries. That would be very burdensome on the court personnel and also on the grand jurors themselves. And so I think you have to make the request and the judge has to approve it because the court's going to utilize a lot of its own resources to support a grand jury.
15:36But I think other than that, it's fairly pro forma. I think if the U.S. attorney requests one and only one, I can't imagine Judge Bosberg will decline it. Unlike regular grand juries, the target of a special grand jury can request to testify and present witnesses? Yes. You know, in fact, any any target can do that. It's very rare that that happens because usually a target wants to exercise their right against self-incrimination, doesn't want to be locked into any story. But there is that right. They can even be subpoenaed to testify, even though they might invoke their Fifth Amendment rights, if that is the only place where you can get the information.
16:15But it's pretty rare. I'd be surprised if any target testifies in this or any other investigation. Coming up next, I'll continue this conversation with Barbara McQuaid. Is Dr. Anthony Fauci likely to be indicted? This is Bloomberg. This is the Bloomberg Tech Minute brought to you by ChatGPT. Now with ChatGPT Work, I'm Carol Masser. Walmart has become a major player in the burgeoning business of quickly fueling electric vehicles, speeding past Costco as well as more established charging companies. Bloomberg's Kyle Stock writes, as of June, Walmart has opened about 46 high-speed public charging stations with 380 cords.
16:55There are now EV chargers at about 326 of its U.S. stores, including adding this year four high-speed charging stations in Bentonville, Arkansas, even though the state has been a laggard in transitioning to electric vehicles. Walmart has hosted chargers from other companies since 2018. The big difference now? Walmart is building its own network, and quickly. As of March of last year, every EV station at a Walmart is under the company brand. Now, Walmart is still a blip on the U.S. charging map, and yet it was second only to Tesla among charging networks expanding in the second quarter. That's the Bloomberg Tech Minute brought to you by ChachiPT.
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18:50There's none of the stiff-baked goods you expect from Better For You brands. There's just the soft, fluffy bread you crave. Plus, small batch drops of indulgent favorites like the popular 2-gram net carb Hero Croissant and the 3-gram net carb Hero Pano Chocolat. And right now, Hero Bread is offering 10 % off your order. Go to hero.co and use code IHEART at checkout. That's code IHEART at H-E-R-O dot C-O. All figures per serving of Hero Bread see nutrition facts on Hero.co. On July 29th, we had the Homeland Security Committee making a referral to the Justice Department to prosecute him for invoking his Fifth Amendment rights.
19:34Do you think that Pirro's office will actually indict Fauci for that? I'd be very surprised to see charges against Dr. Fauci for invoking the Fifth Amendment during those congressional hearings. He had absolutely every right to do that. You know, Jeanine Pirro, I think, is very much a Trump loyalist, but I think she understands the law and the consequences of bringing a case that is unsupported. The basis for the contempt referral is that he was granted a pardon by Joe Biden. But of course, that pardon is only retroactive for anything he may have done leading up to the date. I think it was January 19th of 2025.
20:13What he's concerned about now is that he is testifying and that there will be some perjury trap, you know, where they ask him a question based on a changed understanding of something he testified about several years ago, and they charge him with a new crime. And so, as long as he has any reasonable fear of prosecution, he's entitled to invoke that right. He also has the right to invoke it for any state prosecution, because a pardon, of course, by a president can only cover federal offenses. And already there are attorneys general around the country who've announced investigations against him. South Carolina and Florida are two of several.
20:50So he's absolutely on solid ground invoking his right. I think Jeanine Pirro knows that and I'd be very surprised to see her bring a case. It's really considered unethical to bring a case where you don't believe you have the evidence or the law on your side. So talking about not having the evidence to support charges. In the Reflecting Pool case, there have been stories about the White House still wanting the Justice Department to bring charges. And I'm wondering why the Justice Department is fighting over whether to have the charges dismissed with or without prejudice. I mean, why, if they don't intend to bring them again, why wouldn't they just agree to dismiss them with prejudice instead of arguing before the judge?
21:35I don't know, because there seems no world in which you could bring these charges. The crime requires proof that the person caused more than$1 ,000 worth of damage maliciously. And there's just no way to do that in this case. As that report indicates, the pool was already damaged. You know, the classic law school example is you can't be charged with murder for shooting a dead body. You didn't cause the death. You could fire 100 bullets into a dead body. You might be charged with a different crime of mutilating a corpse or something like that, but you can't cause their murder because they're already dead.
22:12I think the same is true with regard to the reflecting pool. It was already damaged. And so the idea that Davy Hearn pulled or tugged on a piece of floating paint just did not cause$1 ,000 worth of damage to that reflecting pool. So I don't know why anyone would want to consider dismissing that case without prejudice because they can't bring it again based on the dismissal motion that Janine Pirro brought and that Department of Interior report that she produced, I just don't see how they ever prove these charges. So I don't know. I imagine this is at some level of the White House, whether it's Donald Trump himself or Stephen Miller or someone else who just can't admit they were wrong, wants to preserve the possibility that they bring charges again against David Hearn.
22:58And let me also add this. I know Janine Pirro is getting a lot of credit for doing this dismissal and quote doing the right thing and i guess she should but she never should have charged this case to begin with the idea that she only just now discovered that he couldn't have caused a thousand dollars worth of damage is absolute nonsense everybody said it at the time everybody knew it at the time the reason david heard went to the pool was to see what the fuss was all about that's why he uh said he grabbed the paint so you know the report gives her a basis. But I think the real reason is the timing.
23:29We know that just the day before, the lawyers for David Hearn, Norm Eisen, had filed a motion to request all of the grand jury colloquy transcripts because of some irregularities in the testimony of one witness who first testified he did not know the value of the damage, leaves the room, comes back 20 minutes later and says, oh, the damage was$1 ,000. That was so irregular that he asked, I want to see all of the transcripts. And it was the next day that Jeanine Pierre moved to dismiss the indictment. So I think she realized the jig was up and she was going to be humiliated unless she dismissed it on her own.
24:06So she was very proactive in suddenly sharing this new report that we just got. We had no idea that it was already damaged and that he could not possibly have damaged it to the tune of a thousand dollars. I think that was nonsense. And I don't think she deserves any credit at all. I think a good prosecutor never would have charged that case at all. I mean, during her press conference about bringing the charges, Pirro said that they had the evidence to prove the case beyond a reasonable doubt, that they had witnesses, and even said that there were witnesses to Hearns being nasty with the park officers, which there appears to be no evidence of.
24:43Her remarks at the press conference were inappropriate under DOJ policy. A U.S. attorney may give public remarks to inform the public about what's happening in a case, but they're not supposed to go beyond the four corners of the indictment. Sometimes there are what is called a speaking indictment that has a great deal of detail. There were times when I did press conferences with a speaking indictment and I made reference to allegations in the indictment. The indictment alleges that X, Y, and Z happened. This indictment was one sentence. It just said that David Hearn maliciously caused more than$1 ,000 worth of damage to the reflecting pool.
25:16So for her to make all those out-of-court statements was really inappropriate. And I don't know what she was thinking then. Maybe she was misinformed by her assistance. That's a possibility. But shame on her if that's the case. She should have been educated and read those things before she made those statements. But it really goes back to that idea of Ed Martin with the name and shame. They can really ruin someone's life just by charging them. And that is unethical and a violation of DOJ policies. But think about what was done here, the willingness to ruin an innocent man's life, an Olympian, you know, I mean, he's no better or worse than anyone else.
Read the full transcript
25:53But they were willing to accuse him of a crime just to scapegoat him because President Trump could not accept the humiliation of damaging the reflecting pool and then falsely claiming, baselessly claiming, that it was committed by vandals. And so to indulge him in his story, they were willing to throw an innocent man under the bus. It's disgusting. And there are many other D.C. residents who've experienced being overcharged by the D.C. U.S. Attorney's Office. Thanks so much for joining me today, Barbara. That's Professor Barbara McQuaid of the University of Michigan Law School. Her new book is called The Fix, Saving America from the Corruption of a Mob-Style Government.
26:41Coming up next on the Bloomberg Law Show, ICE is looking at spending$20 million to equip agents with stun gloves that send an electrical shock to someone simply by touching them. I'm June Grosso and you're listening to Bloomberg.
27:00This is Bloomberg Law with June Grosso from Bloomberg Radio. ICE plans to spend between 10 and 20 million dollars to outfit officers and agents with, quote, conductive distraction and de-escalation devices, gloves that deliver painful electric shocks. They're normal patrol gloves until an officer presses a button to activate its electrical mode. They must be applied directly to someone's skin to produce a voltage that causes pain, which is intended to gain compliance from people who are resisting. This disclosure comes in the wake of two recent fatal shootings carried out by ICE officers in Texas and Maine.
27:48Leon Ice has been accused of using excessive force time and time again and several fatal shootings. Why put another weapon in their hands? Well, it depends how you look at it. So what they're trying to do is they're trying to find ways to not use lethal force in situations where they're having escalations because either the person that they're trying to apprehend is trying to resist arrest, or there are individuals trying to obstruct, you know, the line of sight of ICE so that they can't get to the person they're trying to arrest. And so you have contractors like this glove company who are saying, look, here's a non-lethal way that you can immediately touch someone with a glove that your ICE agent is wearing and give them a shock so that you can then disable that person temporarily and either arrest them if you need to or just move to the person that you're trying to arrest.
28:45And so the question is, with these non-lethal uses of force, this has been a thing forever, whether it's been pepper spray or a taser or mace or whatever, does it end up happening that the officers end up using these non-lethal uses of force more than they would have used force otherwise? Or do they actually end up getting used in lieu of deadly force. So that's always the question. And that's going to come down to training. It's going to come down to officer discipline and all of these things. And so unfortunately, we're going to have to wait and see to determine whether at the end of the day, this is actually going to be a solution for not using lethal force or whether it's going to actually be an aggravator in terms of total uses of force increasing when they otherwise wouldn't have increased.
29:33Because we're at a point now where we've had the two recent fatal shootings by ICE officers in Texas and Maine, and there are videos surfacing showing their aggressive tactics. There's one where an ICE officer is pointing a gun at a woman, claiming she tried to hit them with her car. This after how many times ICE officers have been caught on camera, on video, shooting people who are in their cars, starting with Renee Good in Minneapolis. Yeah, correct. There's no reason to be pointing your weapon at any point that anyone who's not in the process of using force against you or even is a threat to use force against you.
30:18And so exactly, this is the kind of thing where you hope that other types of non-lethal force would be used in that situation. But again, maybe you don't need to use force at all. And so that's the debate is, is the glove going to replace not using force at all, meaning more people are going to get shocked and people have a special concerns for things like children or pregnant ladies or elderly people with heart issues or people with mental defects. You know, that's the concern here is, is, are those people going to start being subject to this force? Or is this really going to be used in a way that actually diminishes the total use of lethal force.
30:57So obviously, we would hope it gets used in that second manner where it's diminishing lethal force, but we'll just have to wait and see. I have to say, I mean, I was shocked that with all the shootings we've had over months and months and months and the killings, that an ICE officer would still point a gun at someone like that. It appears that they haven't gotten the message about their aggressive tactics. Well, I think the problem is, again, that these ICE agents are really there to do detentions and removals. And this is why you're seeing them try to move to things like airport arrests and courthouse arrests and other kinds of arrests where people are in sanitized environments rather than on the street or at home.
31:38Because every time they're arresting people on the street or at home, this is the problem is there are so many of those interactions that they're not trained to be in the type of local police environment where the local police are trained to avoid these types of confrontations. And so you keep seeing them. And until they get this kind of lengthy police training, unfortunately, you're going to see that or they're going to have to change to the kinds of other arrests that also are making people nervous, like the ones at the airport and at the courthouses and at other places. New York Attorney General Letitia James said the state was reviewing the purchase agreement for possible avenues for a lawsuit.
32:19But I don't know what kind of a lawsuit you could have until someone gets injured. Right. The only way you could sue is either under the excessive force context. If you start seeing a pattern and practice of excessive force where they're using these gloves instead of so they could just deescalate using training, that would be one. Or if they're seeing some sort of racial profiling in the way that the force is being used, that might be another way. But short of that, I don't think you're going to see the ability to actually sue on the uses of these gloves. because these kinds of non-lethal uses of force are quite common and are used, even if it's just a taser, there's really not much difference between the glove and a taser at the end of the day.
32:59Yeah. So let's turn down to the mandatory detention policy, which we've talked about before, because it's been going through the courts, many courts. There's a circuit split on it, but the first circuit now add to the six other circuits who ruled against the administration. So tell us what this is about again. So basically what this is about is when the government apprehends you to place you in deportation proceedings, the government now wants to be able to say that if you entered here illegally, meaning you didn't come here on a visa and you overstayed. But instead, what you did was you entered here by crossing the border illegally.
33:38What they want to say is that the congressional statutory law that was passed in 1996 that said that if you were apprehended while trying to enter the country, you would be subject to mandatory removal. that that applies even if you've entered the country, that the second the government grabs you, even if it's 10 years after you tried to enter or 20 years after you tried to enter, the government can still detain you mandatorily, meaning there's no bond. And remember, bond is something that if you were charged for a crime, you could ask for bond. So they're saying that here, even though there's no crime, this is just an immigration offense.
34:15And the courts are very clear that immigration deportation cases are civil cases. They're not criminal cases. What they're saying is that here there's no bond because Congress passed this. So you've only had two courts. You've had the Eighth Circuit and the Fifth Circuit who've said that in this situation, you can actually avoid having to give bond. But then you've had the 9th, the 10th, the 11th, the 2nd, the 6th, and the 7th who said you do have to get bond, meaning you have to release the person if they're not a flight risk or if they're not dangerous to society. And what's at stake here is if you're free while your detention case is going on, then you can actually talk to a lawyer.
34:59You can do your strategy. You can get resources, et cetera. Whereas if you're in detention, you could be placed anywhere in the country. Many times there's not a lawyer within hundreds of miles of you, and it's going to be much, much harder for you to win your case. You're not going to be able to visit your family because your family is going to be hundreds of miles from you. And you're also not going to likely have access to counsel, which means you're very likely going to lose your deportation case. So it really makes all the difference in the world, whether you're detained or not, during these removal proceedings.
35:31And what the First Circuit said is, look, the statute says that the people who are subject to this mandatory detention are people who are both applicants for admission. That means anybody who's trying to get legal status. And so, of course, if you're fighting your deportation, then you are an applicant for admission because you're trying to get legal status. So that part, check. But then the statute also says seeking admission. And so the government says seeking admission means the same thing as an applicant for admission. They just happen to use different words. But there's this presumption in the law that that's not how it works.
36:09When there's different words in the same statute, they have to mean different things. Otherwise, you would not use these different words. You would use the same words over and over again. And so what the foreign nationals who sue in these cases say is that that word seeking admission means that you have to be caught in the act of trying to cross the border, not 10 years later after you've already crossed the border many years later. And so that's why these courts, many of them are agreeing, is they're saying you have to have both of these things. You have to be an applicant for admission, meaning you have to want to be here legally, and you have to be seeking admission when you're apprehended.
36:47Then that has to mean two different things. And that means we have to be catching you in the act of crossing the border, not many years later. And so from that standpoint, only two courts have said those mean the same thing. Now you have seven courts who say they mean something different. And obviously, the Supreme Court's going to look at this and they're going to make the final determination. Do you think if the Supreme Court goes with a textualist reading that they'll agree with the seven circuits who've ruled against the administration? Well, here's the problem. I've now given up and trying to see where things are going in this sense because I never thought in for the life of me that there would be three votes under the clearest constitutional words of all time to say that birthright citizenship is not a thing.
37:38Because, I mean, if you ask any AI, Claude, Harvey, whoever, co-pilot, what do these words mean? They would mean that if you're born here, you're a citizen. No one would dispute that. And yet there were three votes out of Dine in the Supreme Court to say that, no, being born here doesn't mean anything. You're still not a citizen. They added all these things that are nowhere in the words of the thing. You have to have at least one parent who's a U.S. citizen or a lawful permanent resident, even though lawful permanent resident didn't even exist. That's a concept that was invented in the 1950s. And they're saying that that has some relevance to anything that was written in the 1860s.
38:18And I never would have guessed in a million years that there'd be three votes for that. So the point is there's at least three votes on this court for this interpretation that seeking admission means the same thing as applicant for admission, meaning no bond. And so the question is, are there at least two additional votes for that? And how do I know really at the end of the day? Because at this point, the only immigration case that Trump has lost in these last two years has been the birthright citizenship case. He hasn't lost any other cases. And so, again, if it was Claude AI or Co-Pilot AI or whatever, I think it would be a slam-dug case that you have to say these two things mean different things.
39:01So you have to assign meaning to those two things. And that's the textualist reading. But in this new world that we live in, you'd have to say it's 50-50 because there's no way to know how this will go. Welcome to my world, Leon. Thanks so much. That's Leon Fresco of Holland and Knight. I'm June Grosso. Stay with us. Today's top stories and global business headlines are coming up right now. This is the Bloomberg Tech Minute brought to you by ChatGPT. Now with ChatGPT Work. I'm Carol Masser. Walmart has become a major player in the burgeoning business of quickly fueling electric vehicles, speeding past Costco as well as more established charging companies.
39:44Bloomberg's Kyle Stock writes, as of June, Walmart has opened about 46 high-speed public charging stations with 380 cords. There are now EV chargers at about 326 of its U.S. stores, including adding, this year, four high-speed charging stations in Bentonville, Arkansas, even though the state has been a laggard in transitioning to electric vehicles. Walmart has hosted chargers from other companies since 2018. The big difference now? Walmart is building its own network and quickly. As of March of last year, every EV station at a Walmart is under the company brand. Now Walmart is still a blip on the U.S.
40:24charging map, and yet it was second only to Tesla among charging networks expanding in the second quarter. That's the Bloomberg Tech Minute brought to you by ChachiPT. Put ChachiPT to work on your most ambitious ideas and projects. Get started at ChachiPT.com today by selecting Work Mode. Available on Plus and Pro Plans. Everyone's talking about how AI is transforming work, especially in sales. While the landscape shifts, one thing remains the same. The thrill of closing a deal. Whether it's a gong or a confetti machine, every team has its celebration rituals. Adio is designed for that moment.
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42:32gloves that deliver painful electric shocks. They're normal patrol gloves until an officer presses a button to activate its electrical mode. They must be applied directly to someone's skin to produce a voltage that causes pain, which is intended to gain compliance from people who are resisting. This disclosure comes in the wake of two recent fatal shootings carried out by ICE officers in Texas and Maine. Leon, ICE has been accused of using excessive force time and time again and several fatal shootings. Why put another weapon in their hands? Well, it depends how you look at it. So what they're trying to do is they're trying to find ways to not use lethal force in situations where they're having escalations because either the person that they're trying to apprehend is trying to resist arrest, or there are individuals trying to obstruct, you know, the line of sight of ICE so that they can't get to the person they're trying to arrest.
43:36And so you have contractors like this glove company who are saying, look, here's a non-lethal way that you can immediately touch someone with a glove that your ICE agent is wearing and give them a shock so that you can then disable that person temporarily and either arrest them if you need to or just move to the person that you're trying to arrest. And so the question is, with these non-lethal uses of force, this has been a thing forever, whether it's been pepper spray or a taser or mace or whatever, does it end up happening that the officers end up using these non-lethal uses of force more than they would have used force otherwise?
44:16Or do they actually end up getting used in lieu of deadly force? So that's always the question. And that's going to come down to training. It's going to come down to officer discipline and all of these things. And so, unfortunately, we're going to have to wait and see to determine whether at the end of the day, this is actually going to be a solution for not using lethal force or whether it's going to actually be an aggravator in terms of total uses of force increasing when they otherwise wouldn't have increased. Because we're at a point now where we've had the two recent fatal shootings by ICE officers in Texas and Maine, and there are video surfacing showing their aggressive tactics.
45:00There's one where an ICE officer is pointing a gun at a woman claiming she tried to hit them with her car. This after how many times ICE officers have been caught on camera on video shooting people who are in their cars, starting with Renee Good in Minneapolis. Yeah, correct. There's no reason to be pointing your weapon at any point that anyone who's not in the process of using force against you or even is a threat to use force against you. And so exactly, this is the kind of thing where you hope that other types of non-lethal force would be used in that situation. But again, maybe you don't need to use force at all.
45:42And so that's the debate. Is the glove going to replace not using force at all, meaning more people are going to get shocked and people have a special concern for things like children or pregnant ladies or elderly people with heart issues or people with mental defects? You know, that's the concern here is are those people going to start being subject to this force? Or is this really going to be used in a way that actually diminishes the total use of lethal force? So obviously we would hope it gets used in that second manner where it's diminishing lethal force. But we'll just have to wait and see.
46:16I have to say, I mean, I was shocked that with all the shootings we've had over months and months and months and the killings, that an ICE officer would still point a gun at someone like that. It appears that they haven't gotten the message about their aggressive tactics. Well, I think the problem is, again, that these ICE agents are really there to do detentions and removals. And this is why you're seeing them try to move to things like airport arrests and courthouse arrests and other kinds of arrests where people are in sanitized environments rather than on the street or at home. Because every time they're arresting people on the street or at home, this is the problem is there are so many of those interactions that they're not trained to be in the type of local police environment where the local police are trained to avoid these types of confrontations.
47:08And so you keep seeing them. And until they get this kind of lengthy police training, unfortunately, you're going to see that or they're going to have to change to the kinds of other arrests that also are making people nervous, like the ones at the airport and at the courthouses and at other places. New York Attorney General Letitia James said the state was reviewing the purchase agreement for possible avenues for a lawsuit. But I don't know what kind of a lawsuit you could have until someone gets injured. Right. The only way you could sue is either under the excessive force context. If you start seeing a pattern and practice of excessive force where they're using these gloves instead of so they could just deescalate using training, that would be one.
47:50Or if they're seeing some sort of racial profiling in the way that the force is being used, that might be another way. But short of that, I don't think you're going to see the ability to actually sue on the uses of these gloves. because these kinds of non-lethal uses of force are quite common and are used, even if it's just a taser, there's really not much difference between the glove and a taser at the end of the day. Yeah, so let's turn down to the mandatory detention policy, which we've talked about before, because it's been going through the courts, many courts. There's a circuit split on it, but the first circuit now add to the six other circuits who ruled against the administration.
48:29So tell us what this is about again. So basically what this is about is when the government apprehends you to place you in deportation proceedings, the government now wants to be able to say that if you entered here illegally, meaning you didn't come here on a visa and you overstayed, but instead what you did was you entered here by crossing the border illegally. What they want to say is that the congressional statutory law that was passed in 1996 that said that if you were apprehended while trying to enter the country, you would be subject to mandatory removal. But that applies even if you've entered the country, that the second the government grabs you, even if it's 10 years after you try to enter or 20 years after you try to enter, the government can still detain you mandatorily, meaning there's no bond.
49:19And remember, bond is something that if you were charged for a crime, you could ask for bond. So they're saying that here, even though there's no crime, this is just an immigration offense. And the courts are very clear that immigration deportation cases are civil cases. They're not criminal cases. What they're saying is that here there's no bond because Congress passed this. So you've only had two courts. You've had the Eighth Circuit and the Fifth Circuit who've said that in this situation, you can actually avoid having to give bond. But then you've had the Ninth, the Tenth, the Eleventh, the Second, the Sixth, and the Seventh who said you do have to give bond, meaning you have to release the person if they're not a flight risk or if they're not dangerous to society.
50:05and what's at stake here is if you're free while your detention case is going on, then you can actually talk to a lawyer, you can do your strategy, you can get resources, et cetera. Whereas if you're in detention, you could be placed anywhere in the country. Many times there's not a lawyer within hundreds of miles of you, and it's going to be much, much harder for you to win your case. You're not going to be able to visit your family because your family is going to be hundreds of miles from you, And you're also not going to likely have access to counsel, which means you're very likely going to lose your deportation case.
50:39So it really makes all the difference in the world, whether you're detained or not during these removal proceedings. And what the first circuit said is, look, the statute says that the people who are subject to this mandatory detention are people who are both applicants for admission. That means anybody who's trying to get legal status. And so, of course, if you're fighting your deportation, then you are an applicant for admission because you're trying to get legal status. So that part, check. But then the statute also says seeking admission. And so the government says seeking admission means the same thing as an applicant for admission.
51:16They just happen to use different words. But there's this presumption in the law that that's not how it works. When there's different words in the same statute, they have to mean different things. Otherwise, you would not use these different words. You would use the same words over and over again. And so what the foreign nationals who sue in these cases say is that that word seeking admission means that you have to be caught in the act of trying to cross the border, not 10 years later after you've already crossed the border many years later. And so that's why these courts, many of them are agreeing, is they're saying you have to have both of these things.
51:53You have to be an applicant for admission, meaning you have to want to be here legally and you have to be seeking admission when you're apprehended. Then that has to mean two different things. And that means we have to be catching you in the act of crossing the border, not many years later. And so from that standpoint, only two courts have said those mean the same thing. Now you have seven courts who say they mean something different. And obviously the Supreme Court is going to look at this and they're going to make the final determination. Do you think if the Supreme Court goes with a textualist reading that they'll agree with the seven circuits who've ruled against the administration?
52:32Well, here's the problem. I've now given up and trying to see where things are going in this sense, because I never thought for the life of me that there would be three votes under the clearest constitutional words of all time to say that birthright citizenship is not a thing. Because, I mean, if you ask any AI, Claude, Harvey, whoever, co-pilot, what do these words mean? they would mean that if you're born here, you're a citizen. No one would dispute that. And yet there were three votes out of Dine and the Supreme Court to say that, no, being born here doesn't mean anything. You're still not a citizen.
53:12They added all these things that are nowhere in the words of the thing. You have to have at least one parent who's a U.S. citizen or a lawful permanent resident, even though lawful permanent resident didn't even exist. That's a concept that was invented in the 1950s. And they're saying that that has some relevance to anything that was written in the 1860s. And I never would have guessed in a million years that there'd be three votes for that. So the point is, there's at least three votes on this court for this interpretation that seeking admission means the same thing as applicant for admission, meaning no bond.
53:46And so the question is, are there at least two additional votes for that? And how do I know, really, at the end of the day? because at this point, the only immigration case that Trump has lost in these last two years has been the birthright citizenship case. He hasn't lost any other cases. And so, again, if it was Claude AI or Co-Pilot AI or whatever, I think it would be a slam-dug case that you have to say these two things mean different things. So you have to assign meaning to those two things. And that's the textualist reading. but in this new world that we live in, you'd have to say it's 50-50 because there's no way to know how this will go.
54:27Welcome to my world, Leon. Thanks so much. 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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From the publisher
Barbara McQuade, a professor at the University of Michigan Law School and the former US Attorney for the Eastern District of Michigan, discusses Jeanine Pirro, the DC US Attorney, convening a special grand jury. Immigration law expert Leon Fresco, a partner at Holland & Knight, discusses ICE spending $20 million on electric shock gloves. June Grasso hosts.
See omnystudio.com/listener for privacy information.