The Legalities Behind ICE, The Constitution, Minnesota, & the Impact on the Rule of Law

Episode Notes

Transcript

David D. Cole:

When you’re being held down on the street, your arms pinned, you’ve been disarmed, you don’t pose a threat to anybody, much less a threat of death or imminent grievous, bodily harm that would justify shooting someone much less shooting them 10 times on the ground. So those are blatant violated to the Fourth Amendment.

Announcer:

Welcome to the award-winning podcast, Lawyer 2 Lawyer with J. Craig Williams, bringing you the latest legal news and observations with the leading experts in the legal profession. You are listening to Legal Talk Network.

J. Craig Williams:

Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I’m Craig Williams, coming to you from Southern California, a very sunny southern California. I have three books out titled How To Get Sued the Sled and My newest book. How Would You Decide 10 Famous Trials That Changed History? You can find All three on Amazon. In addition, our new podcast miniseries in Dispute, 10 famous trials that changed history is currently featured here on the Legal Talk Network and on your favorite podcasting app. Please listen and subscribe. Well, the recent Patal shootings of Renee Goode and Alex Preti in Minneapolis, Minnesota shook the nation and the world. In recent months, the actions of the US immigrations and customs enforcement that are known as ICE have reached a boiling point in communities and have come under scrutiny for the treatment of civilians. In response, many have taken to the streets to protest with the Trump administration’s mission to deport dangerous criminals.

A recent internal ice policy allowed agents to go door to door without a judicial warrant, a violation of the Fourth Amendment, which protects unreasonable searches and seizures by the government as protestors lined the streets and individuals First Amendment rights, freedom of speech and assembly in particular are also under attack. So are we currently witnessing the shredding of the US Constitution and the rule of law? Will there be investigations into the actions of ICE with a legislative branch? Step in today on Lawyer 2 Lawyer, we will discuss the legalities behind the actions of ice. We will take a look at ICE’s door to door policy, the constitutional rights of individuals who encounter ICE agents, the recent tragedies in Minnesota surrounding ice agents and civilians, and the overall impact these actions are having on the rule of law and the United States Constitution. And without further ado, we’re joined by Professor David D. Cole. David is the Honorable George J. Mitchell, professor in Law and Public Policy at Georgetown Law. He’s also the former national legal Director of the American Civil Liberties Union. He writes about and teaches constitutional law, freedom of speech and constitutional criminal procedure. He’s a regular contributor to the New York Review of Books and is a legal affairs correspondent for the nation. Welcome to the show, David.

David D. Cole:

Thanks for having me, Craig.

J. Craig Williams:

David, how did you get interested in constitutional law?

David D. Cole:

Oh my gosh, who isn’t interested in constitutional law? I went to law school and that was the subject that most engaged me, and so that’s what I ended up focusing on. And I started my career at a fantastic organization in New York called The Center for Constitutional Rights, which did constitutional litigation on behalf of progressive movements across the country and maybe the best job I ever had. So I’ve been doing constitutional law ever since, both as a lawyer, as a professor, as a writer, a speaker, but I think it is what constitutes us as a society, and it is also the document that allows any of us to call our government to account for what it has done to us. So I feel like I’ve represented over the course of my career, many people who were they to go to the executive branch directly? They’d never get in the door were they? To knock on the door of their Congress person. They wouldn’t get an appointment, but they could file a lawsuit in federal court. And the federal courts had an obligation to hear and rule on that case. So I’m thinking particularly of immigrants who are being charged with being associated with organizations that the government doesn’t like. No politician is going to come to the aid of a Palestinian activist, but the courts often did.

J. Craig Williams:

Right. Well, you’ve been in the right place at the right time at the Supreme Court for years and years. You were involved with the case that involved First Amendment protection for flag burning, the sexual orientation and gender identity under Title VII and School Discipline, school Speech, and the nras. So you’ve got a long, long history of cases. Tell us about your involvement with the ACL U.

David D. Cole:

Well, so as I said, I started my career with the Center for Constitutional Rights. I then became a law professor, but I continued to do a lot of constitutional litigation, often with the Center for Constitutional Rights and the ACL U. So I had done a lot of pro bono work with them over the years, but in 2016, the legal director, the A CLU stepped down. And so the executive director of the A CLU came to me and said, would you be willing to put your name in the hat for this position? And he said, how could you, this was sort of the spring of 2016. He said, how could you not want to take on this role? You’ve been litigating and teaching about constitutional law under a conservative majority Supreme Court for your entire career, but you come to us and with the upcoming election of Hillary Clinton and her appointment of Justice Scalia’s successor, you will have a, for the first time a Democratic majority Supreme Court, what better place to be than the A CLU to build on that opportunity? And those are the conditions under which I applied for the job, got the job. Obviously things changed in November 8th, 2016, and I started 11 days before Trump started in his first term.

J. Craig Williams:

Well, you’ve been riding this train for a while, but where are we today with ICE and who are they and how do they come into being? And let’s kind of establish a little bit of a foundation about them. How do they fit into the scheme of things? What are their training? What are their qualifications?

David D. Cole:

Well, we are first and foremost a nation of immigrants, but we are also a nation that has always had a kind of ambivalent attitude towards immigrants. And at times we have been very welcoming, at least of some immigrants, of some nationalities and of some colors. And at other times we’ve been very unwelcoming and I think we are living now through a time when we are extraordinarily unwelcoming, when there’s a tremendous amount of animosity that has been exploited and fostered and fueled by President Trump. And ICE is at the forefront of that immigrations and custom enforcement. They are the folks who are dealing with the enforcement of immigration law in this country. We used to have the Immigration and naturalization service, now we have the Department of Homeland Security and ice, but at the end of the day, they are federal agents whose job it is to enforce our immigration laws.

J. Craig Williams:

As we’ve seen, they seem to be going a bit further. But before we get really into that, what kind of historic parallels do you see? Is this anything like Manzanar, like the Japanese internment camps in World War ii? Are we seeing repeats of that type of nationalism?

David D. Cole:

Well, we are seeing an incredible amount of nationalism and anti-immigrant fervor, and we’ve seen it in the past directed against Chinese immigrants directed against the Japanese during World War ii. Absolutely there it extended beyond immigrants to Japanese citizens. And many of those who were interned during the World War II internment were actually US citizens who just were of Japanese descent. We’ve seen it directed at South Americans, at African immigrants, Haitian immigrants. So again, anti-immigrant kind of fervor is not new. But President Trump has sort of raised it to fever pitch. He has decided to exploit it to first to get elected, and now to sort of deliver on his promise A xenophobic promise and ICE is the arm of the government that is doing it. And so what you have seen is a law enforcement agency that is really out of control. I think in large part because the president and Christie Nome, the Secretary of Homeland Security, have shown zero interest in constraining ice.

They’re interested in results and by results they mean getting immigrants out of this country whether they are a threat to anybody or not, whether they are someone who works in your fields or your restaurant or your industry or a criminal, it doesn’t really matter to the Trump administration. They want to get as many immigrants out of this country as possible. And they’ve sent the message to ice that regardless of what training you received, what we care about is results. What we care about is who you get, how many people you get, and you’re seeing the results of that in videos on our social media every day.

J. Craig Williams:

There’s a big distinction between what we’re seeing now and what we’ve seen in the past. And from what I’ve heard and what I’ve read, there seems to be some kind of rumor out there that prior presidents have deported more immigrants with substantially less violence. How does that fall?

David D. Cole:

Well, it is true that President Obama deported more immigrants than any other president in recent history, including President Trump the last time around President Trump may well exceed President Obama’s deportation numbers, but President Obama did it without sending troops out, wearing masks and fully armed and killing Americans and violating Fourth Amendment rights and the like. He did it through traditional means of immigration enforcement, which is you focus on the bad actors. The bad actors are the folks who have serious criminal convictions. Those people, you don’t need troops to find those people. They’re in jail. They’re in jail and get them when they finish their sentence and deport them. And that was the priority of the Obama administration. I think their thinking was that if they could succeed in that, they could also gain credibility to reform our immigration laws, which is what we really need to do to try to kind of rationalize our immigration policy. They never got there, but they certainly showed that you do not need to do what President Trump is doing to deport the immigrants among us who actually pose some kind of a threat. He is now picking up 5-year-old kids, 80-year-old grandfathers. These are not people who pose any threat whatsoever. They’re just looking for numbers

J. Craig Williams:

At this time. Let’s take a quick break to hear a word from our sponsors. We’ll be right back and welcome back to Lawyer 2 Lawyer. I’m joined by David Cole, professor in law and public policy at Georgetown Law and former national legal director of the American Civil Liberties Union. What is the rationalization for the violence that we are seeing? How does that fit into why are they masked? Why is it such a presence and why is it seemingly directed at major democratic cities?

David D. Cole:

Well, president Trump, this campaign has served a lot of President Trump’s interests. One is to make himself look like he’s tough. So he likes the fact that they’re out there fully armed with masks and carrying large weapons and the like, even though again, that’s not necessary to do the job that ice officials generally do. He likes that. He wants that, that image, and he wants to and has used it for partisan ends, targeted democratic cities because they are in democratic states, because they are democratic cities in Democratic states, and he wants to sort of paint the Democrats as in favor of illegal immigration in favor of criminals opposed to law enforcement. That’s the political image he wants and he thought he could create by going into la, going into Portland, going into Minneapolis. I think in Minneapolis, it has rebounded against him and he, he’s being hurt by what’s coming out of Minneapolis more than helped. And you see that they’re now pulling back from Minneapolis precisely because they recognize that this is no longer serving their political partisan purposes, but actually hurting their image.

J. Craig Williams:

Public pressure.

David D. Cole:

Yeah. I mean, one of the things that Minneapolis has been a disaster from day one, but what it does illustrate is the power of resistance, the power of truth, the power of demonstrators, the power of recording. Because if it weren’t for the demonstrators out there, if it weren’t for the recordings, we would have two deaths and we’d only have the government’s account of what happened in those deaths. And the government claimed, as we saw that they were facing, people were brandishing a weapon out to assassinate people, to inflict massive death and the like. And all of that was just obviously, obviously false and the videos showed it. And so now, in many ways, to me it reminds me of the role that cameras played in the South during the civil rights movement when the southern police officers were turning dogs and hoses on protestors, black protestors, civil rights protestors, and cameras caught those images and Americans were horrified by what they saw.

And I think we’re seeing the same thing today. The video images of what ICE is doing, of how ice is carrying out its activities is not what most Americans want to see from their law enforcement officers. And it’s captured, it’s undeniable. They can’t cover it over with fake news. They can try to get on television and lie, but the truth has come out. And so you’re now seeing finally only after many people’s rights were violated, two innocent people have been killed. You’re seeing them begin to pull back, but they need a much more radical pullback than what we are likely to see

J. Craig Williams:

In Wales. They passed a law that makes politicians liable for lying. Obviously we know that Christie Nome was lying. We know that Steven Miller’s been lying. We know that Bovino and Bondi have been lying on this point. What are the consequences?

David D. Cole:

Well, in this country, lying is unfortunately not. It’s a common practice. It’s an all too common practice of this administration in particular. I mean, I think in general, I would say that while all politicians sort of color the truth in ways that will sort present their side as positively as possible, that Democrats are guilty of that as much as Republicans. But I think generally speaking, there’s been a culture in this country that law enforcement should tell it like it is that law enforcement should not be used for partisan ends, that law enforcement should not be telling lies. It’s one thing for a politician, but for the Attorney General of the United States, for the head of Homeland Security to be engaging in, out and out blatant lies, not admitting when they have lied, that corrodes the very foundation of the legal system. And I think prior administrations, democratic and Republican have abided largely by an ethic of law enforcement, should not get involved in partisan politics, should tell it like it is, should investigate, should be careful about the words they use, should not come out of the box with prejudgments.

But we’re seeing exactly the opposite. We’re seeing the Trump administration, prejudge, assert, make clearly false assertions block the efforts of state and local officials to investigate what are state and local crimes to cover up their own actions. And that corrodes our trust in law enforcement in ways that are very, very deleterious to our safety to law and order to trust in government generally. So it’s a very, very disturbing time. And the only silver lining is that we have shown, at least thus far, that resistance can work, resistance can change things. It has changed the narrative. The Trump administration, I think is very much on its back feet here, very, very defensive now because people came out and said, this is not the America I want to live in. I want to live in an America where the government respects rights, not violates them in cold blood.

J. Craig Williams:

How do we fix this?

David D. Cole:

Well, I think we’re starting to fix it by the political action that you’re seeing in Minnesota and you’re seeing across the country with people coming out and protesting. You’re seeing it in Congress with they’re now using the budget process to put pressure on the kind of ridiculous outlays to ICE and DHS that the Trump administration has made. We will see it at the midterms, and I think ordinary folks can get involved and should get involved with the organizations that advance their interests, their values, where those values are under attack. So there are many immigrants rights groups across this country. There are many civil liberties groups across this country. There are many good government groups across this country. There are many grassroots political activism groups across this country. And to me that is where our salvation lies. It lies in the robust civil society that we have.

That is institutions that are non-governmental institutions that reflect people coming together to stand up for the values they believe in, whether it’s the A CLU or the Center for Reproductive Rights or the National Rifle Association. They’re on the right end on the left, but they are civil institutions of citizens who have come together to defend the rights that they believe in. And those organizations are absolutely critical to checking government abuse, to organizing people, to stand up to that abuse, to making sure that we elect politicians who won’t stand for that abuse. And that is a never ending process. But if we engage, we can change things. And Lord knows we need a change right now that what we are seeing on the streets today. I mean, I have not seen it since the images during the civil rights era in the South. We haven’t seen this kind of hard militaristic rights rejecting government action in this country in decades. And we’re seeing it every day now.

J. Craig Williams:

Let’s take another quick break to hear a word from our sponsors. We’ll be right back and welcome back to Lawyer 2 Lawyer. I’m back with David Cole, he’s professor in law and public policy at Georgetown Law and the former national legal director of the American Civil Liberties Union. Talk about the armchair Americans. I mean, all of this and everything that we see on TV and being labeled as a domestic terrorist just for showing up to protest has a chilling effect. How can we deal with that and what do the armchair Americans do?

David D. Cole:

So it’s certainly designed to have a chilling effect. Absolutely. And the throwing around this term, domestic terrorist, which is not even a legal term, there is no crime of domestic terrorism. There’s no legal label of domestic terrorism, but the administration is throwing it around, applying it to essentially citizens and organizations that they disagree with. Well, that is not terrorism, that is democracy. In a democracy there are going to be organizations that the government disagrees with. That’s a feature, not a bug of democracy. That’s what ensures that we have liberty and not totalitarianism. But those institutions, those groups are only as strong as the people who support them, who work with them. Many of these groups are membership organizations. They provide opportunities for people to get engaged, to do outreach, to get out the vote during the midterms, to get out in the street during demonstrations, to volunteer at the offices.

So whether it’s, again, whether it’s the A CLU or protect democracy or public citizen, there are just a wealth of organizations out there that people can work with on the ground to defend the rights and values that they believe in. And if they do so, then we will have a robust democracy. If they sit back and think, oh my God, there’s nothing I can do, then that’s also a self-fulfilling prophecy, and that makes it much easier for the government to continue abusing people’s rights. We’re not all targeted by this. I’m not targeted by this. I’m a US white male decently well off in Washington dc. No one’s targeting my rights. The people whose rights are getting targeted look different from me. They live in different areas. But I believe that my identity as an American is tied up with the kinds of rights that we have made famous. And when those rights are being violated by government officials, whether they’re state officials, local officials, or federal officials, I think it’s incumbent on all of us to do everything we can to stand up against that, not to accept it as inevitable or something that we can’t do anything about, but to do something about it.

J. Craig Williams:

Just so that we’re all clear on it, can you give us a laundry list of what constitution, what portions of the Constitution and its amendments have been shredded by ice and what we’ve seen?

David D. Cole:

So I think the two biggest principles are the Fourth Amendment and the first Amendment. The first amendment, the right of citizens to protest, protects the right of citizens to record what the police are doing in public to hold them accountable. And yet what you are seeing are people getting killed for doing nothing more than that for recording ice officials, abusing protestors, essentially, that’s a clear violation of the First Amendment because it’s government officials targeting people for engaging in constitutional protected activity. But you’re also seeing widespread violations of the Fourth Amendment. The Fourth Amendment protects us from unreasonable searches and seizures that includes the use of lethal force, the Fourth Amendment, any use of lethal force against someone is treated as a seizure. And the Supreme Court has said, you cannot use lethal force against somebody unless he poses an imminent threat of death or serious bodily harm to the agent or to some other human being.

That was not the case in either of the killings that we have seen on video in recent weeks in Minneapolis. Neither of those individuals posed any imminent threat to anybody. When you’re being held down on the street, your arms pinned, you’ve been disarmed, you don’t pose a threat to anybody, much less a threat of death or imminent grievous bodily harm that would justify shooting someone much less shooting them 10 times on the ground. So those are blatant violations of the Fourth Amendment, but it, it’s not limited to that. The Fourth Amendment also precludes government officials from entering people’s homes without a warrant issued by a judge. And ICE has been routinely violating that rule. They have been going in on what they call administrative warrants. Those are basically slips of paper that the immigration officials gave themselves without having to go to a judge, a neutral trier of fact who looks at what you have and assesses whether you’ve got sufficient probable cause to go into somebody’s house.

The house is sort of the apex of privacy in this country. And generally speaking, the court has held, the fourth Amendment does not allow government officials, whether state police, federal police, local police, ice does not allow them to go into a house without probable cause and a warrant issued by a judge. And they’ve been doing that routinely locking people up who don’t pose a threat of flight, don’t pose a threat or danger to others, and then essentially throwing away the key ice is doing that every day, locking up immigrants where there’s no showing that they pose a risk of flight or a danger to the community. And absent that kind of a showing is unconstitutional under the due process clause to deprive somebody of liberty based on charges, you have to demonstrate that the only way you can hold them before you’ve actually determined that they’ve committed a violation is if you show that they are a risk of flight or a danger to the community.

But in many instances, people are being held for long periods of time without even having an opportunity to make a showing that they are not a risk of flight or a danger to the community. Locking up kids and taking kids in order to try to bait parents or uncles or aunts to come in and turn themselves in, using kids essentially to kind of blackmail adults. Not only is that unconstitutional, it is cruel and inhumane. It recalls the family separation policy that the first Trump administration employed where they were taking families who were coming across the border without papers and taking the kids from the parents and locking the kids up somewhere else, not telling the parents where the kids were on the theory that this would deter people from coming to this country. If you know you’re going to lose your kid into the nether regions of the US detention system, if you come here, you’re not likely to come here. That was their thinking. But it was a cruel, inhumane, and unconstitutional policy. We challenged it at the A CLU and we won, and we eventually were able to reunite thousands of families, but it took years to do that. And many people lost contact with their children and children as young as two years old for months and months and months and sometimes years. So that’s a partial list of the violations that we have seen.

J. Craig Williams:

This kind of uniform outrage that we’ve heard across the country and across the world has been demanding accountability and even retribution when the dust settles, which it ultimately will and seemingly always has in these types of situations, what accountability are we going to see? How far up the line is it going to go?

David D. Cole:

So accountability is absolutely critical. Super important question because we’ve seen blatant violations of our rights of constitutional rights of all kinds of people, including people who are now dead. And the question is, who gets held accountable and how I think there will be some accountability in the courts. I have no doubt that there will be a civil lawsuit against the officers who were involved in the two ice killings in Minneapolis. There could be criminal prosecutions of those officials either by Minneapolis prosecutors or by the federal government, although I’m not holding my breath for the federal government. Obviously there can be lawsuits for damages, for violations of fourth Amendment rights with respect to invasions of people’s homes and the like. But those are harder and don’t offer a lot of remedy. So in my mind, if you’re thinking about accountability in the courts, there will be some, but it will be limited.

The real accountability is political accountability. The real accountability is when Americans stand up and say, this is not the country we want to live in. This is not how we want to see our law enforcement officers act. And when enough people do that, that forces the government to back off to shift tactics, to shift people who are put in charge. And you’re already beginning to see that they sent Mr. Bovino off. They suspended, the officers involved in the most recent killing, they have brought in a different leader, and Trump has indicated that he’s going to pull back to some degree. He will not pull back sufficiently yet. But that’s a form of accountability. They violated people’s rights. We as people stood up and the government had to respond. And if they don’t respond, they’ll be heard at the polls and they should be heard at the polls either way, but they’ll be more heard at the polls if they don’t respond. So accountability, yes, we can rely on it from the courts to a limited degree, but ultimately it’s on us. It’s on all of us.

J. Craig Williams:

Well, it looks like we’ve reached the end of our program at this time. We’d like to invite David to share his final thoughts and provide his contact information.

David D. Cole:

So yeah, I reachable I, I’m teach full-time at Georgetown Law School. You can get my information on the web there. And again, thank you so much for having me. I applaud you for one of the longest running legal podcasts in America and for taking on such critically important issues. So thanks a lot.

J. Craig Williams:

Well, here are a few of my thoughts about today’s topic. This is insane. We have an out of control government lying to us without very many consequences other than political consequences. Honestly, I think we need the law that Wales has adopted that punishes lying politicians. I think we need to stop this division and stop the kind of invasion of our homes and our cities no matter which political side it’s on. But the political side aspect of it all is the most troubling. The government is supposed to treat its citizens equally. And that doesn’t seem to be happening in this administration. In fact, it’s not. What do we need to do about it? Well, what David said in this podcast is probably the best advice you could get if you’re going to be an armed chair American, then at least support the organizations that he’s identified and help us get our country back. That’s it for my rant on today’s topic. Let me know what you think. And if you like what you heard today, please rate us on Apple Podcasts, your favorite podcasting app. You can also visit [email protected], where you can sign up for our newsletter. I’m Craig Williams. Thanks for listening. Please join us next time for another great legal topic. Remember, when you want legal think Lawyer 2 Lawyer.

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