# Weekend Law: Music Piracy, Drug Boats, Asylum & Texas Maps

An episode of [Bloomberg Law](https://invisiblenetwork.ai/podcast/277975394), 6 Dec 2025, 42 min.

Audio: https://podtrac.com/pts/redirect.mp3/traffic.omny.fm/d/clips/e73c998e-6e60-432f-8610-ae210140c5b1/7c892d84-801f-4c0b-b0e9-ae2b0012ff5f/556dcdc0-5127-4eb6-8653-b3ab001d4fc3/audio.mp3?utm_source=Podcast&in_playlist=91224201-26a6-429d-ac3c-ae2b0012ff6d

Intellectual property litigator Terence Ross, a partner at Katten Muchin Rosenman, discusses Supreme Court oral arguments in a $1 billion music piracy case. Then immigration law expert Leon Fresco, a partner at Holland & Knight, discusses Supreme Court arguments in an asylum case. And Bloomberg Supreme Court reporter Greg Stohr, discusses the Supreme Court allowing Texas to use maps that favor Republicans in the midterms. Plus, Joshua Kastenberg, a professor at the University of New Mexico Law School and a former judge and lawyer in the US Air Force, discusses the second strike on an alleged Venezuelan drug boat. June Grasso hosts. See omnystudio.com/listener for privacy information.

## Transcript

[0:03] Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.
[0:08] Speaker 2: The music industry faced off against internet providers at the
[0:13] Speaker 2: Supreme Court this week over a one billion dollar jury
[0:17] Speaker 2: verdict against Cox Communications for not shutting down the accounts
[0:21] Speaker 2: of customers who'd pirated more than ten thousand copyrighted songs
[0:26] Speaker 2: by artists like Beyonce and Justin Timberlake. The lawyers painted
[0:30] Speaker 2: very different bleak pictures of the consequences of a decision
[0:35] Speaker 2: against their clients. Joshua Rosenkrantz represents the internet provider Cox,
[0:40] Speaker 2: and Paul Clement represents the record companies.
[0:44] Speaker 3: There is no short fireway for an ISP to avoid liability,
[0:50] Speaker 3: and the only way it can is to cut off
[0:53] Speaker 3: the Internet, not just for the accused infringer, but for
[0:57] Speaker 3: anyone else who happens to use the same connection. That
[1:02] Speaker 3: could be entire towns, universities, or hospitals.
[1:06] Speaker 4: If Cox is right on the law, then Cox could
[1:09] Speaker 4: take tens of thousands of copyright notices and throw them
[1:12] Speaker 4: in the trash, and they could have its employees, say
[1:15] Speaker 4: f the DMCA.
[1:16] Speaker 2: The issue is whether internet providers should be held responsible
[1:20] Speaker 2: for contributing to copyright infringement when they know their customers
[1:24] Speaker 2: are pirating music but don't terminate their Internet access. Several
[1:30] Speaker 2: justices appeared skeptical that Cox had done enough to stop piracy,
[1:35] Speaker 2: and questioned whether a favorable ruling would allow Internet service
[1:39] Speaker 2: providers to ignore clear copyright infringement by their users. Here
[1:44] Speaker 2: are Justices Sonya Sotomayor and Amy Cony Barrett.
[1:48] Speaker 5: You did nothing and in fact, counselor your clients sort
[1:54] Speaker 5: of lais a fair attitude towards the respondents's probably what
[2:00] Speaker 5: got the jury upset?
[2:02] Speaker 6: What incentive would you have to do anything? If you
[2:05] Speaker 6: wont if you if you win and mayre knowledge isn't enough,
[2:09] Speaker 6: Why would you bother to send out any notices in
[2:11] Speaker 6: the future.
[2:12] Speaker 2: But Justice Samuel Alito expressed concerns about the effect on
[2:17] Speaker 2: large institutions like universities or hospitals. If an Internet service
[2:22] Speaker 2: provider is forced to cut off infringers.
[2:25] Speaker 7: What is an ISP supposed to do with a university
[2:29] Speaker 7: account that has let's say, seventy thousand users? What is
[2:33] Speaker 7: the university supposed to do?
[2:35] Speaker 2: My guest is intellectual property litigator Terrence Ross, a partner
[2:39] Speaker 2: at Catan Euchin Rosenmuan Terry. Will you explain the issue
[2:43] Speaker 2: here and the process of policing music piracy.
[2:48] Speaker 8: The issue in the case involved process by which recording
[2:52] Speaker 8: companies track online sharing of musical compositions that they own.
[2:59] Speaker 8: The cop write in the process allows them to identify
[3:04] Speaker 8: the IP address and the ISP that is providing the
[3:09] Speaker 8: service to that IP address, and so the music company's
[3:13] Speaker 8: recording companies regularly on a daily basis, in fact, send
[3:18] Speaker 8: notices of infringement to the ISPs that are providing the
[3:24] Speaker 8: Internet service to these infringers. And there are days in
[3:27] Speaker 8: which they're sending out ten thousand notices to each individual
[3:31] Speaker 8: ISP service, and the recording companies finally became fed up
[3:36] Speaker 8: that the ISPs were not doing something. They wanted the
[3:39] Speaker 8: ISPs to cut off service to these identified infringers, and
[3:44] Speaker 8: the ISPs dragged their heels doing anything taking any real
[3:49] Speaker 8: concrete action to stop it. And so the recording companies
[3:53] Speaker 8: finally sued cos Cable Company, which is one of the
[3:58] Speaker 8: largest ISPs in the nation, alleging that they had engaged
[4:03] Speaker 8: in contributory copyright infringement.
[4:06] Speaker 2: In its papers, COX had argued that Grandma will be
[4:09] Speaker 2: thrown off the Internet because Junior visited and illegally downloaded songs.
[4:15] Speaker 2: Did some of the justices seem to pick up on
[4:18] Speaker 2: that concern.
[4:19] Speaker 8: There was only one justice who seemed to give some
[4:22] Speaker 8: credence that, and that was Justice the Lead of He
[4:25] Speaker 8: was the only justice who really seemed to buy into
[4:29] Speaker 8: the position by Cox that it was hesitant to kick
[4:33] Speaker 8: people off because of and then you can fill in
[4:36] Speaker 8: the blank as to what the reason is their grandmother,
[4:38] Speaker 8: their university, their hospital. In fact, the hypothetically posed at
[4:42] Speaker 8: oral argument in the Supreme Court was what happens when
[4:45] Speaker 8: all you can do is identify that the IP address
[4:49] Speaker 8: belongs to university? Or you going to shut down the
[4:51] Speaker 8: entire university? One of those odd hypotheticals that takes the
[4:55] Speaker 8: case the extreme. The facts are actually contrast to that,
[5:00] Speaker 8: and indeed none of the other justices seemed to buy
[5:02] Speaker 8: into that argument. The reality is that over the period
[5:06] Speaker 8: of time and issue, Cox had received one hundred and
[5:09] Speaker 8: sixty three thousand notices of infringement and had kicked off
[5:15] Speaker 8: of its service only thirty two customers. The policy of
[5:21] Speaker 8: compliance used by Cox was described in some detail, and
[5:26] Speaker 8: it was sub law. They fare to use the word
[5:30] Speaker 8: that one of the justices used to describe it they
[5:33] Speaker 8: had originally started off to say, well, if we get
[5:35] Speaker 8: three notices about a particular user, we're going to tell
[5:39] Speaker 8: them we're cutting off their service. That rose gradually over
[5:42] Speaker 8: time from being a three strikes you're out policy to
[5:45] Speaker 8: being a thirteen strikes and you're aut policy. And the
[5:48] Speaker 8: thirteen strikes reset every six months, so if you didn't
[5:52] Speaker 8: get to thirteen within a six month period, you went
[5:55] Speaker 8: back to zero, or if you got kicked off after
[5:57] Speaker 8: six months off, you got put back on. Also cap
[6:00] Speaker 8: the number notices that they were accepting from recording companies
[6:05] Speaker 8: at three hundred a day. And then probably the worst
[6:08] Speaker 8: fact of all in which got brought up at the
[6:11] Speaker 8: Supreme Court, if you could believe it, was the head
[6:14] Speaker 8: of Copyright Compliance at Cox sent out an email to
[6:18] Speaker 8: the people in charge of enforcing copyright policy in which
[6:23] Speaker 8: he said, f the DMCA. Now, the DMCA refers to
[6:28] Speaker 8: the Digital Millennium Copyright Act, which is one of the
[6:32] Speaker 8: key statutes that shoe here and which requires ISPs to
[6:37] Speaker 8: set up a policing mechanism against copyright infringement if they
[6:42] Speaker 8: want to claim the safe harbor that is embedded in
[6:46] Speaker 8: the Digital Millennium Copyright Act In response to that, one
[6:49] Speaker 8: of the minions for the head of compliance wrote back saying, well,
[6:52] Speaker 8: we're helping law breaking customers. And there were dozens of
[6:56] Speaker 8: emails like this amongst the compliance group of cocks that
[6:59] Speaker 8: just manifested a complete disdain for copyright laws, which obviously
[7:05] Speaker 8: impacted the jury because the jury below had awarded a
[7:08] Speaker 8: billion dollars in damages against cop and in the Supreme
[7:11] Speaker 8: Court argument, it was clear that outside of Justice Alito,
[7:15] Speaker 8: none of the eight other justices were buying what Cox
[7:19] Speaker 8: was trying to claim was their reason for not cutting
[7:22] Speaker 8: off people that you'd kick Grandma's off of the Internet.
[7:26] Speaker 8: The other eight justices just didn't buy it, and it
[7:28] Speaker 8: was a loser argument for Cox.
[7:30] Speaker 2: So then, can you tell where most of the justices
[7:33] Speaker 2: do stand?
[7:35] Speaker 8: That's always a tough question. In this case. I think
[7:37] Speaker 8: it's tover the most. I think outside of Justice Alito,
[7:40] Speaker 8: the other eight were just incredibly skeptical of Cox's excuses
[7:44] Speaker 8: for allowing this widespread infringement to go on. In the
[7:48] Speaker 8: record below, there's apparently one period of time at which
[7:52] Speaker 8: twenty one percent of all traffic on the Cox's Internet
[7:55] Speaker 8: connections twenty one percent involved copyright infringement, and the law
[8:00] Speaker 8: super low didn't go after you know, every single mom
[8:04] Speaker 8: and pop business or every single college student. It was
[8:08] Speaker 8: targeted only at distributors, not people who were downloading the
[8:13] Speaker 8: occasional song, but people who were copying music digitally and
[8:17] Speaker 8: distributing it on a mass scale. So there was this
[8:22] Speaker 8: enormous skepticism expressed by the justice except for Justice Alita,
[8:27] Speaker 8: that Cox really wasn't fulfilling it its obligation and needed
[8:33] Speaker 8: to do something differently now. On the other hand, there
[8:35] Speaker 8: also seemed to be some concern about the size of
[8:39] Speaker 8: the jury verdict and whether or not the actions of
[8:45] Speaker 8: Cocks were sufficient to constitute willful contributory infringement, which is
[8:51] Speaker 8: what set them up for much larger scale of damages
[8:55] Speaker 8: than if this had been found to be just ordinary
[8:57] Speaker 8: copyright infringement.
[8:59] Speaker 2: So what's the and that the justices would use here?
[9:03] Speaker 2: Cox contends that under a two thousand and five Supreme
[9:07] Speaker 2: Court ruling, it can't be held liable for contributory infringement
[9:12] Speaker 2: unless it affirmatively fostered piracy or clearly intended to promote it.
[9:18] Speaker 2: The music companies say it's enough that Cox's new subscribers
[9:22] Speaker 2: were using its service to download songs illegally.
[9:26] Speaker 8: The case on appeal to the Supreme Court present it
[9:29] Speaker 8: to pretty crisp issues for decision. The first issue, which
[9:34] Speaker 8: I think is where the real fight is going to be,
[9:36] Speaker 8: is whether or not contributory copyright infringement required some sort
[9:41] Speaker 8: of affirmative action by the tenant. The second question presented
[9:45] Speaker 8: for review was whether or not wilfulness required some sort
[9:51] Speaker 8: of knowledge of customer infringement. Now, a problem with that
[9:55] Speaker 8: second question, the wolfleness standard, is that Cox had failed
[10:00] Speaker 8: to object in the trial court to the instruction that
[10:05] Speaker 8: the judge gave to the jury about how to find wilfulness.
[10:09] Speaker 8: So after the case has finished, all the evidence has submitted,
[10:12] Speaker 8: and the attorneys have made their closing argument, and then
[10:14] Speaker 8: just before the jury goes into the jury room to
[10:16] Speaker 8: make a decision, the judge reads to them a series
[10:19] Speaker 8: of instructions as to what the law is. And one
[10:21] Speaker 8: of those instructions will go something like Sony Music Corporation.
[10:25] Speaker 8: Here is alleged that the contributor copyright infringement was wilful
[10:29] Speaker 8: on the part of costs. In order for you to
[10:32] Speaker 8: find wilfulness, you must consider the following factors. And typically
[10:37] Speaker 8: if a party doesn't believe the judge has stayed at
[10:40] Speaker 8: the law correctly to the jury, they get up and
[10:43] Speaker 8: they object, and indeed they don't even have to do
[10:45] Speaker 8: it at the time of trial. These jury instructions are
[10:47] Speaker 8: spent out to the lawyers while advance, and you file
[10:50] Speaker 8: the objection with courts saying we objected this, and give
[10:52] Speaker 8: the court a chance to refine it, improve it so
[10:56] Speaker 8: that there's no objection here. The Cox folks for whatever
[10:59] Speaker 8: reason to object to the wilfulness instruction, and that means
[11:02] Speaker 8: they waived any objection to wilfulness and had really no excuse.
[11:08] Speaker 8: So I just don't see question number two as being
[11:12] Speaker 8: resolved in any way in favor of Cox, and indeed
[11:16] Speaker 8: I suspect the court won't reach it so that we
[11:19] Speaker 8: will get no further instruction from the Supreme Court on
[11:22] Speaker 8: what constitutes wilfulness. I think the Court is focused really
[11:26] Speaker 8: on the position that Cox is arguing that contributory infringement
[11:31] Speaker 8: requires some sort of affirmative act, and that, as they
[11:34] Speaker 8: phrased it, they can't be a contributory infringer by providing
[11:39] Speaker 8: internet service to one of their customers.
[11:42] Speaker 2: So then do you think that they'll send it back
[11:45] Speaker 2: to the lower court with an instruction.
[11:49] Speaker 8: I just don't know what they're going to do here.
[11:53] Speaker 8: I have to be frank, this is one of the
[11:54] Speaker 8: more opaque oral arguments I've have listened to. Other commentators
[11:59] Speaker 8: have argued that the Court might be looking for some
[12:05] Speaker 8: sort of middle ground. Indeed, I think it was Justice
[12:07] Speaker 8: sodom Or commented at one point during the argument that
[12:11] Speaker 8: the Court was being forced to choose between two extreme positions,
[12:16] Speaker 8: and in particular Justice so Myior, who was very skeptical
[12:19] Speaker 8: of Cox's position but also didn't quite like the extreme
[12:25] Speaker 8: argument being made by Sony Music Corp. In the recording company,
[12:28] Speaker 8: seems really perplexed as to what to do. Genuinely perplexed.
[12:31] Speaker 8: The problem the Supreme Court faces here is that the
[12:35] Speaker 8: standard for contributory copyright infringement has been pretty well settled
[12:41] Speaker 8: in this court for more than a century. As early
[12:45] Speaker 8: as nineteen twelve, there was a case that involved miniograph machines.
[12:50] Speaker 8: If you remember those, they were a pre Xerox machines
[12:54] Speaker 8: way of doing sort of a mass production, mass production
[12:58] Speaker 8: being a couple hundred There was a case in which
[13:01] Speaker 8: a publisher sued a mimeograph company for knowingly selling mimiograph
[13:07] Speaker 8: materials to a company that it knew was engaged in
[13:11] Speaker 8: infringing copyright works by using the mimiograph machine. And the
[13:16] Speaker 8: standard was set out there and has been repeated over
[13:20] Speaker 8: and over since that time nineteen twelve. And the standard
[13:24] Speaker 8: is pretty simple. If you provide something that you know
[13:27] Speaker 8: is going to be used by a person to commit
[13:30] Speaker 8: copyright infringement, you've engaged in contributory infringement. And the past
[13:35] Speaker 8: cases haven't spoken in terms of needing an affirmative act,
[13:38] Speaker 8: although one could argue this did not come up with
[13:40] Speaker 8: the Supreme Court hearing that providing the Internet service is
[13:43] Speaker 8: an affirmative act. The Cox Company argued court that that's
[13:49] Speaker 8: not an affirmative act, but that's sort of a stretch
[13:52] Speaker 8: in order to try to get around that line cases,
[13:54] Speaker 8: the Cox Company argued that contributory infringement is really a
[13:59] Speaker 8: key into aiding and embedding liability in the context of
[14:04] Speaker 8: torts and criminal law, and that's a real stretch that
[14:07] Speaker 8: I think is just dead wrong. It would give the
[14:10] Speaker 8: court a way to get out of this dilemma, but
[14:13] Speaker 8: it would mean the court would have to overturn half
[14:15] Speaker 8: a dozen cases going back to nineteen twelve for over
[14:18] Speaker 8: a century and say now they're not good law anymore.
[14:21] Speaker 8: I don't see the Court doing that here.
[14:23] Speaker 2: Do you think we'll see that Justice is coming up
[14:25] Speaker 2: with some sort of middle ground.
[14:28] Speaker 8: So it's a shame that Justice Ginsburg is no longer
[14:31] Speaker 8: on the Court. And we've had many conversations about our
[14:34] Speaker 8: knowledge of copyright law and her ability to copy together
[14:38] Speaker 8: coalition for positions under the Copyright Act that we're actually
[14:42] Speaker 8: quite pragmatic and useful. And I just don't see anybody
[14:46] Speaker 8: either with that depth of knowledge to copyright law or
[14:49] Speaker 8: the ability to do that sort of log rolling on
[14:51] Speaker 8: this Court. And so I think it's going to be
[14:53] Speaker 8: a real struggle for this Court to come up with
[14:55] Speaker 8: some sort of middle ground, particularly in light of the
[14:58] Speaker 8: fact that the law here is just so set for
[15:01] Speaker 8: such a long period time and the sort of odd
[15:03] Speaker 8: cases that Cock sited to the Supreme Court, including this
[15:06] Speaker 8: recent gun distribution case sprin court to site recently where
[15:10] Speaker 8: the gun companies were being sued for deaths in Mexico,
[15:14] Speaker 8: and the argument was they were aiding embedding this criminal activity,
[15:18] Speaker 8: and the gun company said, well, we sold the guns
[15:21] Speaker 8: to dealers in Texas, not knowing what they were going
[15:24] Speaker 8: to do with them, and if anybody's contributed to them,
[15:27] Speaker 8: but it's not us. We had no knowledge of it,
[15:29] Speaker 8: and that case just doesn't fit here, either legally or factually.
[15:35] Speaker 8: And yet Cock sort of beed a lot on that.
[15:38] Speaker 8: I mean, it was almost as if there's a hey,
[15:40] Speaker 8: we cite to some case in which the second circuit,
[15:44] Speaker 8: which everybody beleeves in on the Supreme Court, that'll get
[15:47] Speaker 8: us over the humpire. It's just such a stretch that,
[15:49] Speaker 8: in fact backfires. One starts to think, well, what's wrong
[15:53] Speaker 8: with their case? That that's the best they've got.
[15:55] Speaker 2: Yeah, gun distribution and pirated music don't seem to equate.
[16:00] Speaker 2: Thanks so much, Terry, as always, that's Terrence Fross of
[16:03] Speaker 2: Catnuchen Rosenman. Immigration courts decide about two hundred thousand asylum
[16:10] Speaker 2: applications every year, and Douglas Urgus Urlana, his wife and
[16:15] Speaker 2: child joined that pool of applicants after fleeing Il Salvador
[16:19] Speaker 2: in twenty twenty one. They claimed they were repeatedly threatened
[16:23] Speaker 2: by a cartel hit man in a year's long violent
[16:27] Speaker 2: vendetta against their extended family, but an immigration judge rejected
[16:32] Speaker 2: their bid for asylum, as did the Board of Immigration Appeals,
[16:36] Speaker 2: and a federal appeals court deferred to the board's decision,
[16:40] Speaker 2: and it appeared during oral arguments this week that the
[16:44] Speaker 2: family would not fare much better at the Supreme Court.
[16:48] Speaker 2: Several justices from across the ideological spectrum appeared to agree
[16:53] Speaker 2: that the Board's decision on whether an immigrant faces persecution
[16:58] Speaker 2: serious enough to qualify for asylum is a factual inquiry,
[17:03] Speaker 2: not a legal one, and so the Court of Appeal
[17:05] Speaker 2: should defer to the Immigration Board's decision. Here are liberal
[17:10] Speaker 2: Justice Elaina Kagan and conservative Justice Samuel Alito.
[17:14] Speaker 6: And that's the legal rule. A threat can be persecution,
[17:17] Speaker 6: but only if it's menacing enough to cause actual harm. Now,
[17:21] Speaker 6: what's going to happen in this case is we're going
[17:24] Speaker 6: to have to look at all this evidence, all these facts,
[17:27] Speaker 6: and decide whether these threats were indeed that level of menacing.
[17:33] Speaker 6: And that sounds like really weighing evidence to me. That
[17:36] Speaker 6: sounds really factual.
[17:39] Speaker 7: It must add up to more than ordinary harassment, mistreatment,
[17:43] Speaker 7: or suffering. You may have a set of historical facts
[17:49] Speaker 7: that are undisputed, but determining whether they add up whether
[17:53] Speaker 7: the totality of those facts satisfies that standard. Sure looks
[17:57] Speaker 7: to me like primarily a factual question.
[18:01] Speaker 2: Joining me is immigration law expert Leon Fresco, a partner
[18:05] Speaker 2: at Hollnden Knight. Leon tell us a little about the
[18:08] Speaker 2: asylum process.
[18:10] Speaker 4: What a person asks for asylum, they have to prove
[18:14] Speaker 4: at the end of the day, that they have what's
[18:17] Speaker 4: called a well founded fear of future persecution on the
[18:22] Speaker 4: basis of their race, religion, political origin, social group. There's
[18:26] Speaker 4: a presumption that if you have experienced what's called past persecution,
[18:31] Speaker 4: there's a presumption that you will then have a well
[18:35] Speaker 4: founded fear a future persecution. So what does that mean.
[18:40] Speaker 4: That means that people go into immigration court and they
[18:43] Speaker 4: explain what happened in their country that caused them to leave,
[18:46] Speaker 4: and there's cross examination and the judge can ask questions.
[18:50] Speaker 4: At the end of all of this, there's two determinations.
[18:52] Speaker 4: One did the person experience past persecution? And number two,
[18:58] Speaker 4: was it on the basis of one of the protected grounds.
[19:01] Speaker 4: So in this Supreme Court case, what happened was there
[19:06] Speaker 4: literally was no dispute about the credibility of the facts
[19:11] Speaker 4: raised by the foreign national. In this case, Douglas Umberto
[19:15] Speaker 4: Orias Oriana, who said that he fled El Salvador after
[19:20] Speaker 4: repeated threats and violence from a hitman linked to a
[19:23] Speaker 4: drug lord, and he said that the drug lord shot
[19:26] Speaker 4: his hot brothers and tracked and thread in his family.
[19:28] Speaker 4: And so since there was no dispute about the facts,
[19:32] Speaker 4: there was not a factual issue that was being raised
[19:36] Speaker 4: on appeal. Instead, the court said, I'm going to take
[19:39] Speaker 4: all of the facts that you've presented today as true,
[19:42] Speaker 4: and I'm going to say that they still do not
[19:45] Speaker 4: rise to the high level of this word persecution such
[19:49] Speaker 4: that we can say that you experienced past persecution such
[19:54] Speaker 4: that you would get the presumption of future persecution. So
[19:58] Speaker 4: now Missed Oris Oriana then says, well, how is that possible?
[20:03] Speaker 4: I would like to get review of that. And so
[20:06] Speaker 4: when it gets to the First Circuit Court of Appeals,
[20:10] Speaker 4: the First Circuit says, We're going to defer to the
[20:13] Speaker 4: Board of Immigration Appeals, which is the administrative court that
[20:17] Speaker 4: decides this issue at the end of the day. We're
[20:19] Speaker 4: going to defer to them and say that even though
[20:23] Speaker 4: the facts are not in dispute, we still have to
[20:27] Speaker 4: give some difference to their decision. In terms of let's
[20:31] Speaker 4: say there's a scale and you're weighing it, how many
[20:34] Speaker 4: pebbles go on one scale, how many pebbles go on
[20:37] Speaker 4: the other scale, that even that determination gets some difference,
[20:42] Speaker 4: that the federal courts can't just reweigh the evidence on
[20:48] Speaker 4: their ends and decide whether the facts that were undisputed
[20:52] Speaker 4: in a particular case constituted persecution such that the person
[20:57] Speaker 4: should win their asylum case.
[21:00] Speaker 2: Courts of appeals have been split on whether federal courts
[21:03] Speaker 2: can review the Immigration Board's decision from scratch or have
[21:07] Speaker 2: to defer the board.
[21:09] Speaker 4: The Supreme Court then has to decide, okay, what happens
[21:13] Speaker 4: in a case like this where there's not a dispute
[21:16] Speaker 4: about the actual facts, but there's a dispute about whether
[21:20] Speaker 4: the facts when you weigh them, there's quote unquote significant
[21:24] Speaker 4: enough pebbles on the scale. Does the foreign national win
[21:29] Speaker 4: or do they lose? Can we reweigh that on our
[21:31] Speaker 4: own or do we have to give some difference under
[21:35] Speaker 4: some standard of deferential review. And so the foreign nationals
[21:40] Speaker 4: obviously claiming there should be the Novo review, the court
[21:43] Speaker 4: should look at this and say, okay, we're the threats
[21:45] Speaker 4: here that were undisputed sufficient to say that that was
[21:49] Speaker 4: past persecution. And the government says no, no, no, the
[21:53] Speaker 4: standard is actually much different and that this is a
[21:57] Speaker 4: mixed question of law and fact, and so you have
[22:01] Speaker 4: to treat that with some type of deferential review. And
[22:06] Speaker 4: so you had justices like Justice Court Sis saying a
[22:10] Speaker 4: reasonable fact finder standard as opposed to the Novo review,
[22:15] Speaker 4: and others wanted to weigh it even more deferentially potentially
[22:20] Speaker 4: than even that, and say that basically, if there's substantial
[22:25] Speaker 4: evidence to support the determination of the lower administrative court,
[22:30] Speaker 4: that's enough. So that would be even a broader deferential standard.
[22:34] Speaker 4: And it appears as if really there's not a lot
[22:37] Speaker 4: of excitement in the Supreme Court for having a complete
[22:40] Speaker 4: the Novo review of this process. So the issue is
[22:43] Speaker 4: really going to be how much difference is given in
[22:46] Speaker 4: these types of cases moving forward.
[22:48] Speaker 2: So Leon, just to clarify, everyone accepts that the facts
[22:52] Speaker 2: of the asylum claim are determined by the court below,
[22:56] Speaker 2: the Immigration Court. So the only question is how the
[23:00] Speaker 2: federal appellate court is going to weigh those facts.
[23:04] Speaker 4: Correct So what the lower court said in this case
[23:08] Speaker 4: was yes, all these very bad and serious things happened
[23:12] Speaker 4: to you. But when we put all those pebbles on
[23:14] Speaker 4: the scale, they're not sufficiently weighty enough to actually constitute
[23:19] Speaker 4: persecution for the purposes of winning your case. And then
[23:23] Speaker 4: the question is, okay, when this gets to the federal court,
[23:26] Speaker 4: can they literally reweigh all of that exact evidence and say, no, no, no,
[23:30] Speaker 4: those stones do weigh enough to tip the scales in
[23:33] Speaker 4: favor of the foreign national or are they stuck with Hey,
[23:39] Speaker 4: if this is in any way defensible, we have to
[23:41] Speaker 4: keep this decision the way it is. And it seemed
[23:45] Speaker 4: like the Supreme Court did want to give more difference
[23:47] Speaker 4: than rather re weighing all of the facts in the case,
[23:52] Speaker 4: even if they're undisputed, to decide if they need the
[23:55] Speaker 4: legal standard of past persecution.
[23:58] Speaker 2: If the appeals court can't reweigh what the lower court decided,
[24:04] Speaker 2: it's not much of a review, is it correct.
[24:06] Speaker 4: I mean, it would only be a review if essentially
[24:10] Speaker 4: what happened was somebody goes into immigration court and they
[24:15] Speaker 4: say the government came in and shot me one time
[24:19] Speaker 4: in the left arm because I'm a dissident, and then
[24:22] Speaker 4: they left, and then two weeks later they shot me
[24:25] Speaker 4: in the right arm. And then three weeks later they
[24:27] Speaker 4: shot me in the left leg and they said, you
[24:30] Speaker 4: want this to keep going or are you going to
[24:32] Speaker 4: stop being a dissident? And then the immigration judge says, well,
[24:36] Speaker 4: that doesn't seem like sufficient persecution. You only got shot
[24:39] Speaker 4: three times. Maybe in a case like that, then the
[24:43] Speaker 4: court would say, well, there's no way a reasonable fact
[24:46] Speaker 4: finder could come to that determination that that wasn't persecution,
[24:50] Speaker 4: because then you'd have this sort of reasonable fact finder
[24:53] Speaker 4: deference or some other standard like that. It's not never
[24:58] Speaker 4: will we review it. So they're not saying ever, But
[25:00] Speaker 4: as opposed to a case like this, where they're saying, okay, threats,
[25:05] Speaker 4: how serious are the threats or the threats very serious?
[25:08] Speaker 4: They might say, look, this is the kind of case
[25:10] Speaker 4: that falls in the gray zone. And when you're in
[25:12] Speaker 4: the gray zone, the government wins.
[25:15] Speaker 2: I'm curious, what do you think about the threats in
[25:17] Speaker 2: this case? Do you think they were serious enough for
[25:20] Speaker 2: an asylum claim?
[25:22] Speaker 4: I think it's really in the gray zone. I think
[25:24] Speaker 4: this is the problem when they talk about sort of
[25:26] Speaker 4: bad facts make bad law, is this is the exact
[25:30] Speaker 4: type of case where one judge would definitely grant asylum
[25:34] Speaker 4: one hundred out of one hundred times, and another judge
[25:37] Speaker 4: would never grant the asylum zero out of one hundred times.
[25:40] Speaker 4: Because people just approach these cases with different levels of
[25:44] Speaker 4: sympathy and different levels of concern and different standards in
[25:49] Speaker 4: their mind of what constitutes persecution. It really does become
[25:54] Speaker 4: problematic in terms of the subjectiveness of the process. But
[25:59] Speaker 4: what the Supreme we are trying to figure out is
[26:01] Speaker 4: where does the subjectiveness stop. Does it stop at the
[26:04] Speaker 4: Court of Appeals or does it stop at the administrative level.
[26:08] Speaker 4: And it seems like they're going to stop it at
[26:10] Speaker 4: the administrative level for the most part, and not bring
[26:14] Speaker 4: in sort of a new antiseptic Court of Appeals who's
[26:18] Speaker 4: just reading a transcript without any other context than deciding
[26:22] Speaker 4: is this sufficient persecution. It didn't really seem like any
[26:26] Speaker 4: of the Supreme Court justices wanted to do that. The
[26:28] Speaker 4: novo I.
[26:29] Speaker 2: Agree in these arguments. It seemed like the justices were
[26:33] Speaker 2: mostly on the same page. Thanks as always, Leon, that's
[26:38] Speaker 2: Leon Fresco of Holland and Knight and in other Supreme
[26:41] Speaker 2: Court news. On Thursday, in a six to three decision,
[26:45] Speaker 2: the Court came to the rescue of Texas Republicans allowing
[26:50] Speaker 2: next year's elections to be held under their newly drawn
[26:53] Speaker 2: congressional map, despite a lower court ruling that the map
[26:57] Speaker 2: likely discriminates on the basis of race. Joining me Is Bloomberg,
[27:01] Speaker 2: Supreme Court reporter Greg Store Greg what was the reasoning
[27:04] Speaker 2: of the six Conservatives for allowing Texas to use this map?
[27:08] Speaker 9: Well, the Court gave us a little bit of its reasoning,
[27:11] Speaker 9: a little bit less than two pages on it. First
[27:13] Speaker 9: of all, they said that the district court that ruled
[27:15] Speaker 9: against Texas that said these districts are probably a racial jerymnader,
[27:19] Speaker 9: that that lower court did not quote honor the presumption
[27:22] Speaker 9: of legislative good faith. In other words, they should have
[27:24] Speaker 9: given Texas the benefit of the doubt that it was
[27:26] Speaker 9: acting constitutionally. Secondly, the Supreme Court said that normally, in
[27:31] Speaker 9: cases where you're challenging a racial jerymander, you have to
[27:34] Speaker 9: produce an alternative map that would accomplish whatever the state's
[27:37] Speaker 9: trying to accomplish without using race so much. And they
[27:41] Speaker 9: faulted the challengers for not doing that. And then finally,
[27:44] Speaker 9: the Court said this decision came too close to the election.
[27:48] Speaker 9: In the past, the Supreme Court has said that federal
[27:52] Speaker 9: courts should not change the state's election rules on the
[27:55] Speaker 9: eve of the election. And you might say, well, the
[27:57] Speaker 9: election is not for another eleven months or so, but
[28:00] Speaker 9: in this case, Texas's filing deadlines were coming up, and
[28:04] Speaker 9: the Supreme Court said, that's close enough, and that's a problem.
[28:07] Speaker 9: So the federal court shouldn't act, even if it found
[28:10] Speaker 9: the districts as it did, to be probably unconstitutional.
[28:14] Speaker 2: All three liberals dissented, No surprise there. What was the
[28:18] Speaker 2: focus of Justice Kagan's seventeen page descent.
[28:23] Speaker 9: She mostly focused on the process that this district court
[28:26] Speaker 9: went through to gather evidence about what was going on,
[28:29] Speaker 9: why the state drew this map, and in particular looking
[28:32] Speaker 9: at things like this letter from the Justice Department that
[28:36] Speaker 9: said that the state should eliminate these so called coalition
[28:39] Speaker 9: districts that are made up of heavily Hispanic, heavily black voters,
[28:43] Speaker 9: you know, with the two of them combining to be
[28:45] Speaker 9: more than fifty percent of the district. And Kagan said
[28:48] Speaker 9: the Supreme Court should have deferred to those factual findings
[28:52] Speaker 9: of the district court who spent nine days hearing evidence
[28:54] Speaker 9: about this case, and she blasted them for essentially deciding
[28:58] Speaker 9: this thing over a holiday weekend.
[29:00] Speaker 2: And then on Friday, the Justice has announced that they'll
[29:03] Speaker 2: take up President Trump's planned rollback of automatic birthright citizenship.
[29:09] Speaker 2: Are you surprised that they took this case since it's
[29:13] Speaker 2: basically universally been accepted that the Fourteenth Amendment confers citizenship
[29:19] Speaker 2: on virtually everyone born on US soil.
[29:23] Speaker 9: Not at all surprised because this is the kind of
[29:26] Speaker 9: thing that the Supreme Court wants to do itself and
[29:28] Speaker 9: not lead to the lower courts. So lower courts have
[29:31] Speaker 9: across the board ruled against Trump on this and said
[29:34] Speaker 9: that what he's trying to do through his executive order
[29:38] Speaker 9: is unconstitutional and also in violation of federal immigration law.
[29:42] Speaker 9: But given that these are decisions that block the federal
[29:45] Speaker 9: government from doing something, that's almost always something the Supreme
[29:48] Speaker 9: Court wants to do itself.
[29:50] Speaker 2: A lot of big decisions that are going to be
[29:52] Speaker 2: coming out of the Supreme Court this term. Thanks Greg,
[29:56] Speaker 2: that's Bloomberg Supreme Court reporter Greg store.
[29:59] Speaker 10: I saw that room was one of the most troubling
[30:01] Speaker 10: things I've seen in my time in public service. You
[30:05] Speaker 10: have two individuals in clear distress without any means of
[30:11] Speaker 10: locomotion with a destroyed vessel who were killed by the
[30:16] Speaker 10: United States.
[30:18] Speaker 2: Congressman Jim Hines, the top Democrat on the House Intelligence Committee,
[30:22] Speaker 2: described his reaction to video footage of the second attack
[30:27] Speaker 2: that killed two survivors after an initial strike on an
[30:31] Speaker 2: alleged drug smuggling boat in international waters near Venezuela on
[30:35] Speaker 2: September two. Lawmakers and military legal experts have questioned whether
[30:41] Speaker 2: the attack on survivors was a war crime, because international
[30:46] Speaker 2: law prohibits killing enemy combatants who no longer pose a threat.
[30:51] Speaker 2: Navy Admiral Frank Bradley, who oversaw the strikes, briefed lawmakers
[30:56] Speaker 2: on Thursday in closed door sessions and confirmed that there
[31:01] Speaker 2: had not been a kill them all order as reported.
[31:05] Speaker 2: After the briefing, Republican Senator Tom Cotton, chairman of the
[31:09] Speaker 2: Senate Intelligence Committee, said he believes the men did still
[31:13] Speaker 2: pose a threat after the first strike.
[31:16] Speaker 7: I saw two survivors trying to flip a boat loaded
[31:21] Speaker 7: with drugs down the United States back over so they
[31:24] Speaker 7: could stay in the fight.
[31:26] Speaker 2: Joining me is Professor Joshua Castenberg of the University of
[31:29] Speaker 2: New Mexico Law School. He was a military judge and
[31:33] Speaker 2: lawyer in the US Air Force, Josh Democratic Senator Chris
[31:37] Speaker 2: Van Holland said the second strike was an extra judicial killing,
[31:42] Speaker 2: amounting to murder or a war crime. What's your analysis
[31:46] Speaker 2: of the second strike?
[31:48] Speaker 1: So my take on the second strike is partly colored
[31:51] Speaker 1: by the fact that the administration has this changing narrative constantly,
[31:56] Speaker 1: and the latest narrative that they come up with is
[31:59] Speaker 1: implaus that somehow these men were going to climb back
[32:02] Speaker 1: on the vessel and continue on in their cocaine run.
[32:06] Speaker 1: So having said that, look, you know, the United States
[32:09] Speaker 1: has convened grand juries for murder on the high seas
[32:12] Speaker 1: going back to the War of eighteen twelve, and there's
[32:16] Speaker 1: a federal statute prohibiting precisely what occurred, you know, murder
[32:20] Speaker 1: on the high seas. Now, of course, Trump himself is
[32:25] Speaker 1: immune from any criminal liability thanks to the Supreme Court's decision,
[32:30] Speaker 1: you know, Trump versus United States. But it seems to
[32:34] Speaker 1: mean that nobody else is immune from that kind of
[32:37] Speaker 1: a charge. On the other hand, who's going to pursue it.
[32:40] Speaker 1: I don't think the Attorney General of the United States
[32:43] Speaker 1: is going to differ from the White House's version of
[32:46] Speaker 1: events or their own legal reasoning.
[32:49] Speaker 2: Defense Secretary Pete Hegsith said he left the room after
[32:53] Speaker 2: the first strike. Who's responsible the Navy admiral who ordered
[32:58] Speaker 2: the second strike or the Defense secretary who reportedly approved
[33:03] Speaker 2: the overall operation.
[33:05] Speaker 1: Well they all are. And I'm chuckling in a sad
[33:08] Speaker 1: kind of way about that claim of Secretary of Defense
[33:13] Speaker 1: or secretary of war he seths because at the end
[33:16] Speaker 1: of the day, it really doesn't matter in this regard.
[33:19] Speaker 1: You know, coming out of World War One, if not
[33:22] Speaker 1: the Civil War, the United States embraced the doctrine of
[33:26] Speaker 1: command responsibility, and we particularly saw that play out in
[33:31] Speaker 1: World War Two at the Nuremberg and International Tribunal for
[33:35] Speaker 1: War Crimes in Tokyo. Those trials, and even in US
[33:39] Speaker 1: law when the Army under General MacArthur prosecuted generally Yamashta,
[33:44] Speaker 1: nobody ever alleged that he was the trigger puller or
[33:47] Speaker 1: gave an order for his troops to massacre thousands of
[33:50] Speaker 1: innocent Filipinos. As the United States liberated the island, they
[33:54] Speaker 1: prosecuted and for failing to control as troops and for
[33:57] Speaker 1: creating the environment where it would be made possible. The
[34:01] Speaker 1: only thing in a real rule of law setting that
[34:05] Speaker 1: would save hegsath Is if he preferred uc him J
[34:09] Speaker 1: charges against the individual who gave the order. But I
[34:12] Speaker 1: don't think that's going to happen. I think they're all
[34:14] Speaker 1: banking on protection from Republican allies in the House and
[34:19] Speaker 1: Senate and then ultimately presidential pardons which have now been
[34:22] Speaker 1: given to Honduran drug dealers.
[34:25] Speaker 2: What about the legality of the broader military campaign which
[34:29] Speaker 2: is ongoing. After the briefings on Thursday, the military announced
[34:33] Speaker 2: that he had struck another boat, killing four people. That
[34:37] Speaker 2: brings the death toll to at least eighty seven people.
[34:41] Speaker 1: So we are not at war with Venezuela, and the
[34:46] Speaker 1: idea that United States domestic law can reach into Venezuelan
[34:52] Speaker 1: waters has no basis. However, and this is a big caveat.
[34:57] Speaker 1: Under international maritime law, any nation can stop action such
[35:03] Speaker 1: as piracy or other high crimes that occur on the sea.
[35:08] Speaker 1: In order to do that, you have to have absolute
[35:12] Speaker 1: correct intelligence that a crime such as international drug trafficking
[35:19] Speaker 1: is occurring, and there has to be some sort of
[35:21] Speaker 1: agreement among nations that that is occurring. And on top
[35:25] Speaker 1: of that, you have to be able to show that
[35:29] Speaker 1: what you're doing is consistent proportionality wise to the crime involved.
[35:36] Speaker 1: And the problem with that proportionality aspect is that the
[35:39] Speaker 1: United States Coast Guard, which most often does not use
[35:43] Speaker 1: that kind of lethal force, does an excellent job of
[35:47] Speaker 1: stopping kilo upon kilo upon kilo of cocaine coming into
[35:52] Speaker 1: the United States. They don't catch at all. So you know,
[35:56] Speaker 1: the argument that this is lawful is sort of the
[36:00] Speaker 1: realism of law into the alice in wonderland of law.
[36:05] Speaker 2: Let's turn now to the video released last month by
[36:09] Speaker 2: six Democratic members of Congress directly addressing active duty military
[36:16] Speaker 2: and intelligence personnel.
[36:18] Speaker 1: Right now, the threats to our constitution aren't just coming
[36:21] Speaker 1: from a miroad, but from right here at home.
[36:23] Speaker 4: Our laws are clear. You can refuse illegal orders. You
[36:27] Speaker 4: can refuse illegal orders.
[36:29] Speaker 3: You must refuse illegal orders.
[36:31] Speaker 2: No one has to carry out orders that violate the
[36:33] Speaker 2: law or our constitution.
[36:35] Speaker 10: We know this is hard and that it's a difficult
[36:37] Speaker 10: time to be a public.
[36:38] Speaker 4: Servant, but whether you're serving in the CIA.
[36:40] Speaker 1: The Army, or Navy Air Force.
[36:43] Speaker 4: Your vigilance is critical and know that we have your back.
[36:47] Speaker 2: All six who have military or intelligence backgrounds, we're just
[36:51] Speaker 2: telling service members and intelligence officers what the law is.
[36:57] Speaker 2: Yet President Trump has called them tray and said they
[37:01] Speaker 2: were engaging in seditious behavior punishable by death.
[37:05] Speaker 1: Well, first of all, all the members of the House
[37:09] Speaker 1: and Senate who made that video said was you have
[37:13] Speaker 1: a duty to obey the law, and that includes a
[37:16] Speaker 1: duty to disobey on lawful orders. That's a correct statement
[37:20] Speaker 1: of the law. And I don't think that any investigation
[37:25] Speaker 1: into those members should ever come up as a result
[37:28] Speaker 1: of them making a correct statement of the law. I
[37:31] Speaker 1: think that that concern is real based on this bellicosity
[37:36] Speaker 1: that's come out of the White House, and that bellicosity
[37:40] Speaker 1: includes the use of the federalized National Guard in our cities.
[37:46] Speaker 2: According to Bloomberg's sources, FBI headquarters is pressuring the bureau's
[37:51] Speaker 2: domestic terrorism agents to open a seditious conspiracy investigation into
[37:58] Speaker 2: those six democratic laws.
[38:01] Speaker 1: Yeah. You know, I was asked the other day if
[38:05] Speaker 1: there is precedent for this, or precedent for a military investigation,
[38:11] Speaker 1: and to Senator Mark Kelly, and I said, no, there
[38:15] Speaker 1: is not, not in the United States. There is precedent
[38:18] Speaker 1: for it elsewhere. One of the things that the framers
[38:21] Speaker 1: of our constitution and all their genius wanted to do
[38:25] Speaker 1: was to create a government that was responsible to the
[38:29] Speaker 1: people through the legislative branch. And the last time something
[38:34] Speaker 1: like this happened wasn't in the United States. It was
[38:37] Speaker 1: before the United States was created. It was Oliver Cromwell
[38:42] Speaker 1: using his new model army to pressure Parliament to take
[38:46] Speaker 1: votes the way that he wanted them to take votes,
[38:49] Speaker 1: including the execution of Charles the First. We built a
[38:53] Speaker 1: constitution to prevent the very thing that apparently the FBI's
[38:59] Speaker 1: leaderships to now think is plausible seditious conspiracy. Look to me,
[39:06] Speaker 1: if there's a high crime or misdemeanor, it's the attempt
[39:10] Speaker 1: to cower members of Congress from exercising their free speech rights.
[39:15] Speaker 1: It's not the exercise of those free speech rights themselves.
[39:19] Speaker 2: The Civil War era seditious conspiracy law requires prosecutors to
[39:25] Speaker 2: prove a defendant conspired to use force to oppose US
[39:29] Speaker 2: government authority or to prevent, hinder, or delay the execution
[39:34] Speaker 2: of any US law. Is it sort of absurd to
[39:38] Speaker 2: claim under that statute that this was in any way
[39:43] Speaker 2: seditious conspiracy?
[39:45] Speaker 1: Again, I go back to my Alice in Wonderland quote. Yes,
[39:48] Speaker 1: in the rule of law. It certainly is that you
[39:52] Speaker 1: need to go back to the Civil War, and you
[39:54] Speaker 1: can look at members of Congress, slaveholder like Benjamin Gwynn
[39:59] Speaker 1: Harris from Maryland, who actually gave a prayer on the
[40:02] Speaker 1: floor of Congress for a Southern victory, or a pacifist
[40:06] Speaker 1: like Alexander Long who gave anti war speeches, and at
[40:10] Speaker 1: no time were those two sitting members of Congress investigated
[40:16] Speaker 1: or prosecuted. You know, every time you and I speak
[40:20] Speaker 1: about the administration, I say they pushed the envelope. But
[40:24] Speaker 1: on this particular case, this truly is. It's beyond absurd.
[40:28] Speaker 1: It's truly an affront to the Constitution, the separation of powers,
[40:33] Speaker 1: and the ability of members of Congress to represent their
[40:37] Speaker 1: constituents on the very fundamental positions that a majority of
[40:41] Speaker 1: their constituents elected them to do. Again, it goes back
[40:45] Speaker 1: to the pre revolutionary days, the mentality of Cromwell and
[40:49] Speaker 1: the rule of the major generals and the dictatorship of
[40:52] Speaker 1: the mid sixteen hundreds in Britain, the very thing we
[40:54] Speaker 1: had a revolution against.
[40:56] Speaker 2: You know, your history. Just that's certain. Thanks for joining me.
[41:01] Speaker 2: That's Professor Joshua Kastenberg of the University of New Mexico
[41:05] Speaker 2: Law School. And that's it for this edition of The
[41:08] Speaker 2: Bloomberg Law Show. Remember you can always get the latest
[41:11] Speaker 2: legal news on our Bloomberg Law podcasts. You can find
[41:14] Speaker 2: them on Apple Podcasts, Spotify, and at www dot Bloomberg
[41:19] Speaker 2: dot com slash podcast Slash Law, And remember to tune
[41:22] Speaker 2: into The Bloomberg Law Show every weeknight at ten pm
[41:26] Speaker 2: Wall Street Time. I'm June Grosso and you're listening to
[41:29] Speaker 2: Bloomberg

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