The former judge who helped block Trump's allies fund

0:00Alexandra Goncalves-Peña:Support for this podcast and the following message come from Allianz Travel Insurance. Ready to turn last year's travel dreams into this year's jet-setting reality? An AllTrips annual plan is ready when you are, all year long.

0:13Nancy Gertner:Learn more at AllianzTravelInsurance.com. WBUR Podcasts. Boston. They're not doing this fund. Who knows what else they would do? At this point, they seem to have paused it. They have not walked away from it. Who knows what else they would do?

0:34Alexandra Goncalves-Peña:The Justice Department says it will abide by a federal judge's ruling against the pot of money many in Congress called Trump's slush fund. It's Tuesday, June 2nd, and this is Here and Now Anytime. From NPR and WBUR Boston, I'm Chris Bentley.

0:58Alexandra Goncalves-Peña:A little later on the show, we'll hear about a man in immigration detention who has joined a hunger strike over what he says are deplorable conditions.

1:06Nancy Gertner:I believe that he had been not eating for approximately a week and a half, like so many others that are currently there.

1:15Alexandra Goncalves-Peña:That story coming up in about five minutes. But first, the Trump administration is backing off a bit on its plan to give nearly$1.8 billion of taxpayer money to people it says were victims of political prosecution by the Biden and Obama administrations. That is after a federal judge put a hold on the so-called anti-weaponization fund on Friday. A group of 35 former judges is going even further, seeking to reopen the case that led to the settlement creating this fund. That was a settlement between President Trump and his own government over the release of his tax returns. We spoke with one of the judges calling that deal a, quote, fraud on the court.

1:58Alexandra Goncalves-Peña:Nancy Gertner is a retired federal judge who was appointed by former President Bill Clinton. She's now at Harvard. And she told Scott Tong the fund was illegal from the start.

2:09Nancy Gertner:There's a statute that says that you can call on the Treasury for a settlement so that you don't, And every time you settle a claim against the government, you don't have to rush to Congress. And that's what they were trying to get the money under. And they felt that they needed to go into court to put it sort of imprimatur, that this was a legitimate claim. Trump and Trump's family were making a legitimate claim on the Treasury. And they wanted to go to court to have the court essentially going through the court to bless it as a legitimate claim on this fund. The problem was, as we said, it may well not have been a legitimate claim.

2:48Nancy Gertner:It is Trump essentially suing himself. The kinds of defenses that the IRS would raise with respect to claims like this, that it was filed too late, that the damages didn't match what they were claiming, all those kinds of defenses the IRS didn't raise. All that happened here was once it was clear that the judge candidly smelled a rat and thought that this was collusive, they just moved to dismiss the case, hoping there would be no judicial inquiry. And there will be.

3:18Alexandra Goncalves-Peña:Now the fund is under legal scrutiny, as you're describing. It's under political scrutiny from Democrats and Republicans in Congress. Last Friday, a federal judge temporarily halted its creation. Can you explain for the rest of us the judge's reasoning?

3:31Nancy Gertner:Well, there is a rule that allows you to reopen a settlement if the court was the victim of a fraud, if the settlement was the product of collusion. So you can reopen the settlement. And we were claiming as federal judges, former federal judges, retired judges, that we had an interest in the fair administration of justice and that these were the kinds of – and we were concerned about a fraud on the court. And so we were in a position to raise these kinds of claims. We also said that the judge could raise it on her own, be concerned when a settlement was the product of fraud. She, by the way, did something in addition, which we had not even raised.

4:17Nancy Gertner:There is a rule that says that you can sanction attorneys when they are filing baseless pleadings and baseless claims. It's called Rule 11. And she said she's going to consider reopening the case to consider whether or not the entire thing was the product of fraud and also whether the lawyers were subject to sanction under Rule 11, which is really quite extraordinary. We had not raised that. She began to understand that, you know, something was rotten in the state of Denmark here. here.

4:51Alexandra Goncalves-Peña:And now the settlement, the quote settlement that created this fund also gives immunity to the president, his family, and businesses from investigations and audits by the government. What happens to that piece of the settlement?

5:06Nancy Gertner:I think that that's part of the same issue. In other words, there's a claim against the government. You did me wrong. You settled it. There were two parts. One is roughly$1.8 billion. And the other is immunity, essentially a pardon for any existing claims. It's part and parcel of the settlement. If the settlement is illegitimate, then that should go as well.

5:29Alexandra Goncalves-Peña:We have seen this administration often dig in its heels legally and try to keep fighting, say, on deportations. Could we see this administration try to find other ways to keep this fund alive?

5:43Nancy Gertner:They're not doing this fund. Who knows what else they would do? At this point, they seem to have paused it. They have not walked away from it. Who knows what else they would do? Yeah.

5:54Alexandra Goncalves-Peña:We've been talking to Nancy Gertner, retired federal judge appointed by President Clinton. She's a senior lecturer at Harvard and is one of 35 retired judges who filed a lawsuit last week to reopen President Trump's case against the IRS. Nancy, thank you again.

6:09Nancy Gertner:Thank you.

6:18Alexandra Goncalves-Peña:Coming up next, an update from the detention center in New Jersey, where immigrants are on a hunger strike. Stick around.

6:44Alexandra Goncalves-Peña:their agents are doing, if they're doing it right, or that they even exist at all. Dataiku gives companies one place to see, control, and measure every agent across the entire business. Visit dataiku.com slash NPR. That's D-A-T-A-I-K-U dot com slash NPR. The mayor of Newark, New Jersey, says he'll lift the curfew around the Delaney Hall Detention Center after intense standoffs between protesters and police over claims of terrible conditions inside. Detainees say they're leading a hunger and labor strike over poor medical care and food. The Trump administration denies those claims. Alexandra Goncaves-Pena is a lawyer with the American Friends Service Committee, the Quaker social justice group.

7:34Alexandra Goncalves-Peña:She has a client inside Delaney Hall, and she told Robin Young, that client, whose name she's not using for fear of retribution, ended up in immigration detention after a traffic stop.

7:46Nancy Gertner:And as a result of that traffic stop, he was turned over into ICE custody and where he has been for approximately one month. And is he undocumented? He does not have legal status. He is in immigration proceedings before the immigration court. He is scheduled for a hearing and was, you know, doing everything necessary in order to prepare for that hearing and hoping to secure immigration relief before the immigration court. So in other words, he was taking the legal steps that he was told to take to stay in the country. Is he not eating and so for how long? Correct. So he had been participating with the protesters in solidarity.

8:30And I believe that he had been not eating for approximately a week and a half.

8:37Nancy Gertner:And yeah, like many, like so many others that are currently there. Well, as we said, the Department of Homeland Security is denying that there is a hunger strike or that there is any kind of, as the open letter from some of the detainees said when this all started, any kind of physical or psychological torture. And in fact, they released, the government did, facility menus to prove detainees are provided three daily meals with options like chicken fajitas and Salisbury steak. According to what your client says, you say what? Well, providing menus is not an actual evidence of actually providing adequate food.

9:18Nancy Gertner:Individuals that are in prisons, that are in ICE detention, are not going to take the actions that they're taking because there is no basis, right? Their actions come with consequences. So if they are being provided fantastic food, receiving fantastic medical treatment, living in sanitary conditions, they wouldn't be doing this. So them providing a menu means absolutely nothing. And, you know, it's basically they're using it as a distraction. And quite frankly, I think it's something that everybody should just simply ignore. Well, do you know if people involved in this hunger strike have been punished?

9:58Nancy Gertner:Yes, we have heard of retaliatory responses to individuals that are participating in the labor and hunger strike. We have heard of people being sent to solitary confinement. We have heard of people being transferred into different units. We have heard of threats issued to individuals to be moved out of state. We do know of certain people that have been moved into other facilities. So, yes, that is absolutely happening. Well, talk about the protests that are happening outside. The Democratic governor, Mikey Sherrill, ordered the New Jersey State Police to take over security. She claimed the move was necessary to protect the demonstrators from an ice surge.

10:41Nancy Gertner:State Attorney General Jennifer Davenport confirmed what a lot of people were saying. These were outside agitators. She said five of the six so far arrested by state police this week were not from New Jersey. Fox News is reporting the protesters are far left communist socialist activists who've assaulted federal agents. Now, there's a whiff of, you know, the Jan 6 attacks in claims of many on the right. You know, why isn't there more criticism of these of these protesters because they have assaulted federal agents? I just my question to you is, do you think what's happening outside the hall? And we also had members of the far right Proud Boys show up and things got pretty violent.

11:21Nancy Gertner:Do you think what's happening outside is helping or hurting your clients? I believe that the well-intentioned individuals that are out there lending their voices to support the detainees is helping. It's helping bring attention to the deplorable conditions that humans, you know, that individuals face at the hand of our federal government and federal immigration agencies currently and for years now. You know, and I think that that is absolutely helpful to, you know, our clients. You know, unfortunately, I do know that there has been some violence, but this is coming from both sides. I don't necessarily believe that bringing in, you know, state law enforcement, you know, when individuals were peacefully protesting is maybe the best response by the governor.

12:14Nancy Gertner:But I think in general, this is something that is beneficial to the overall cause, which is good conditions or actually rather the lack of good conditions at immigration detention centers throughout the United States. Is your client inside aware of what's happening outside? Yes, he is. I'm actually going to go speak with him today to kind of fill him in a little more. but he does know a little bit about what's happening. Well, meanwhile, New Jersey's governor and Newark's mayor are calling for the Senate to be closed. The White House says ICE agents will not be deterred, so we'll follow this story.

12:52Nancy Gertner:Alexandra Goncalves-Pena, New Jersey Legal Director at the American Friends Service Committee, who has a client inside the Delaney Hall in New Jersey. Thank you for speaking with us. Thank you so much, Robin, and thank you for reporting on this.

13:11Alexandra Goncalves-Peña:Well, we've been covering this story in New Jersey for a bit now. And on Friday on our radio show and at hereandnow.org, we spoke to Lauren Herman, legal director for the advocacy group Make the Road New Jersey. She told us she thinks the administration is intentionally making immigration detention unbearable.

13:31Nancy Gertner:You know, we do everything we can to keep people out of immigration detention. Often it can be hard. People are picked up or people are transferred from state custody. And we do our best to try to file habeas petitions to get them out as soon as possible. You know, I was talking to one of the other attorneys on my team who was telling me that we had a client in Delaney a short while ago. And he only lasted about a week there. And, you know, we filed a habeas petition for him. We were scheduled to have a bond hearing. his bond was denied and he decided that it simply wasn't worth it and he requested voluntary departure.

14:14Nancy Gertner:And I think that that's quite representative of what we're seeing and what I understand part of the purpose of the horrendous conditions is, right? I think part of the goal is that ICE wants to make it so unbearable for people that they choose to give up their cases. They don't access, you know, whatever little smidgen of due process is left, and they choose to just leave on their own.

14:40Alexandra Goncalves-Peña:You can listen to that whole conversation with Lauren Herman of Make the Road New Jersey right now at hereandnow.org. We'll be right back.

14:53Alexandra Goncalves-Peña:Immigration reform was once a bipartisan issue. That does not mean Congress solved the problem, of course, and it's certainly no longer an issue where the two major parties have shared objectives. But there is another issue that majorities of voters across the aisle say they want to address that some Democratic and Republican lawmakers are promising to take up. Gerrymandering. Representative Debbie Dingell, a Democrat from Michigan, and Representative Jeff Hurd, Republican from Colorado, are proposing some bipartisan solutions. Here's a few minutes of their conversation with Robin Young.

15:30Nancy Gertner:We're not looking for a perfect map. We're looking for a process that people can trust. What does that look like? What are some of the potential solutions? Well, in addition to banning mid-decade redistricting, there's some discussion of a possible nationwide redraw. Article 1, Section 4 of the Constitution does give Congress the ability to set rules. One option might be the redistricting cycle occurring on a uniform nationwide basis, making sure that all states operate under similar rules and timelines. We're also looking at whether or not states should have competitiveness. There's also something that we're looking at that would require local government boundaries to be considered with respect to commissions so that we're not slicing up cities and counties in places that are geographically contiguous.

16:15Nancy Gertner:And Representative Dingell, just your thoughts on what, you know, one or two solutions might be. Well, I think we all do agree on those broad outlines. And I think by doing an independent commission, which is not drawing a map, we do need to rebuild people's trust. You know, and I will say that our independent commission, which drew our maps for the first time in Michigan after the last census, we are very much a battleground state. We are purple and we have seven Republicans and six Democrats. Many people believe that what was outlined in that independent commission meeting, many of the guidelines just outlined by myself and my colleague, drew fair maps.

17:06Alexandra Goncalves-Peña:There is more to that conversation with Debbie Dingell and Jeff Hurd, two members of Congress, including who's to blame for the partisan arms race over redistricting and how to walk it back. Right now at hereandnow.org.

17:28Alexandra Goncalves-Peña:But that'll do it for the show today. Here and Now Anytime comes from NPR and WBR Boston. Today's stories were produced by Julia Corcoran, Will Walkie, and James Mastromarino. Our editors were Todd Bunt, Michael Scotto, and Kat Welch. Technical direction from Matt Reed and Andre Peralta. Our theme music is by Mike Moschetto, Max Liebman, and me, Chris Bentley. Our digital producers are Alison Hagen and Grace Griffin. And Here and Now's executive producer is Alan Price. Thanks for listening. We'll be back with you tomorrow.