French Friday: The Nazi Rot on the Right  ## Metadata - Author: [[The Holy Post]] - Full Title: French Friday: The Nazi Rot on the Right - Category: #podcasts - URL: https://share.snipd.com/episode/773462cd-fbac-42c3-8794-6757a93e0595 ## Document Notes ## Highlights - **What 'Kavanaugh Stops' Mean** - Kavanaugh stops refer to ICE using a multi-factor test as reasonable suspicion to stop people about immigration status. - The Supreme Court allowed those standards to be applied pending litigation, creating current enforcement leeway. Transcript: Skye Jethani These things are. What is a Kavanaugh stop that the DHS officials, federal officials are using? David French So when they're saying Kavanaugh stop, it's not intended as a compliment, Scott. Right. Yeah. Because it's referring to a concurring opinion by Justice Kavanaugh in a case, in an opinion in September, where they vacated an injunction, a lower court injunction that was blocking ICE officers from using a series of factors, factor or series of factors, as reasonable suspicion to stop someone and, you know on their immigration status. Okay. Skye Jethani I know you're very used to talking about this issue on advisory opinions in other places, but there's jargon here that I'm guessing a lot of our listeners are not going to get. David French We'll go through it. Okay. Skye Jethani So my understanding is ICE officials, border patrol officials were stopping people in many cases based on their ethnic appearance. They appear to be racially profiling some of these folks and stopping them. A lower court said, you can't do that. Right. This then went to the Supreme Court, and the Supreme Court said to the lower court, yeah, they can do that at least for now. So it's a convoluted legal structure here. ([Time 0:01:26](https://share.snipd.com/snip/a559e8c6-06ff-424d-92b1-1d4bf5452987)) - **Reasonable Suspicion Versus Probable Cause** - Reasonable suspicion is a low legal standard used to briefly stop and question someone, below probable cause. - It permits brief investigative stops but not automatic arrests without further evidence. Transcript: David French So let's even go back a little further. So the way things work is that the government in the United States of America is not supposed to be able to just stop somebody. A law enforcement officer is not just supposed to be able to just stop somebody and detain them even for a brief amount of time against their will unless certain legal standards are met. And one of the lowest legal standards is something called reasonable suspicion. Probable cause is a higher standard. Probable cause is what you have to have to say to arrest somebody. An actual arrest. Reasonable suspicion is different. It's that, you know, stopping somebody, making inquiries of somebody. And so that's a very low level. There's not a lot historically you have to do to show a reasonable suspicion standard. Skye Jethani So let's just get that out there right now. So let me give you a hypothetical unrelated to this. If a signal goes out to the Wheaton Police Department here where I live that says, we have reason to believe that a robbery suspect is driving a white Honda, a white Honda Civic, right? And I'm driving a white Honda Civic and they pull me over. They're doing that because they have reasonable suspicion that I might be that robber, even if I'm not the robber. Right. They wouldn't be in trouble for stopping me. David French Exactly. They don't have probable cause to arrest because as soon as they stop you, they realize it's not that Honda. Right. Maybe you don't match the description of the robber, et cetera. They move you along. I have been stopped on reasonable suspicion by drug task forces on interstates, for example, before. The kind of car I was driving fit a profile perfectly, exactly what you're saying, Sky. I'll never forget that stop because I'm pulled over. I was maybe speeding, but I wasn't pulled over for speeding. As soon as I pull over, the police officer comes up, asks for my license and registration, takes a look at it, sees that everything is in order. And then off I go. It was this was not a traffic stop. This was more like reasonable suspicion, drug interdiction stop it. So reasonable suspicion is a lower standard than probable cause. So I think that's one thing that's important for people to realize. ([Time 0:02:51](https://share.snipd.com/snip/3abdee3e-120e-45f0-a7e5-1ffa23769c1a)) - **A Personal Stop Illustrates The Rule** - David French described being stopped by a drug task force because his car fit a profile and then released after ID checks. - He used this to illustrate how reasonable-suspicion stops can feel intrusive but resolve quickly. Transcript: Skye Jethani So let's just get that out there right now. So let me give you a hypothetical unrelated to this. If a signal goes out to the Wheaton Police Department here where I live that says, we have reason to believe that a robbery suspect is driving a white Honda, a white Honda Civic, right? And I'm driving a white Honda Civic and they pull me over. They're doing that because they have reasonable suspicion that I might be that robber, even if I'm not the robber. Right. They wouldn't be in trouble for stopping me. David French Exactly. They don't have probable cause to arrest because as soon as they stop you, they realize it's not that Honda. Right. Maybe you don't match the description of the robber, et cetera. They move you along. I have been stopped on reasonable suspicion by drug task forces on interstates, for example, before. The kind of car I was driving fit a profile perfectly, exactly what you're saying, Sky. I'll never forget that stop because I'm pulled over. I was maybe speeding, but I wasn't pulled over for speeding. ([Time 0:03:40](https://share.snipd.com/snip/154f8ec6-edc1-4e29-8e14-a590a4b312c4)) - **ICE's Multi-Factor Standard** - ICE's stated multi-factor approach includes location, type of work, language, and apparent ethnicity. - Officials claim a totality-of-circumstances test rather than single-factor racial profiling. Transcript: David French Also, I think it's important for people to realize is that ICE was not telling the Supreme Court that what we want to do is stop every person who's Hispanic and just because they look Hispanic. So what ICE was telling the Supreme Court was that they stop under these circumstances. And the circumstances are that the following factors or combination of factors are present. A particular location, such as a bus stop, car wash, day labor, labor, pickup site, agricultural site, and the like. Two, the type of work that one does. Three, speaking Spanish or speaking English with an accent. And four, apparent race or ethnicity. So looking at holistically, what you're supposed to be doing is sort of a totality of the circumstances analysis. ([Time 0:05:09](https://share.snipd.com/snip/ad2a37de-dc73-4089-b29d-5cab09254158)) - **Court Claims Versus Field Practice** - The administration's court arguments about limited checks often differ from on-the-ground conduct. - In practice, ICE sometimes uses reasonable-suspicion criteria to make arrests, exceeding legal limits. Transcript: David French And those two things are not always the same thing, Sky. So they're walking into court, into the Supreme Court saying, hey, look, this is our reasonable suspicion standard. It has all of those factors that I just ran through. And the Supreme Court's saying, we're not going to enjoin you from applying those standards for reasonable suspicion. Okay. Well, then what's happening in the real world though, is that these standards are not necessarily being applied. Um, remember this is a reasonable suspicion standard, not a probable cause standard. So they're using a reasonable suspicion standard. They're using these factors to actually arrest people. Right. That's not what it's supposed to be. So this is a very consistent pattern right now with the Trump administration is they're walking into court and they're making an argument in court that sounds reasonable, that sounds Rational. They're providing evidence, what appears sometimes appears to be strong evidence to back up their claims. But then when you see the real world happenings, a lot of this just starts to fall apart completely. ([Time 0:07:02](https://share.snipd.com/snip/1d514915-ed6d-4986-9299-5a9d0fa052a4)) - **Valid IDs Still Contested In Sweeps** - French noted detainees sometimes present valid federal IDs yet agents still contest authenticity and detain them. - He argued current remedies like exclusionary rules and damages are inadequate for large-scale abuses. Transcript: David French Well, this is a real problems guy, because if you're listening, if you're seeing or listening to some of the testimony you're going to see, there are people who are producing actual Real IDs. Yeah. The ID that allows you to fly, the ID where you're establishing your legal residency without equivocation. And some of these ICE guys are saying, ah, looks fake to me. Exactly. Or people are pretty. And so the problem you have is that the system as we have right now, the way things are set up right now is inadequate to deal with this abuse. OK, the way this we deal with this kind of abuse and criminal law is pretty simple. So, for example, in a criminal law context, you are being detained for prosecution criminally, if you're being arrested for prosecution criminally, and they do so in violation of Probable cause standards or they detain you in violation of reasonable suspicion standards, you have a remedy. And the remedy is the exclusionary rule. In other words, you can have that evidence obtained through the unlawful stop excluded. In some circumstances, if it's a state agency that is detaining you, if it's a state police officer or local police officer, you may even have a claim for damages if they have violated Your constitutional rights in a way that's clearly established, where there's no qualified immunity. It's a little tougher to get in the federal government context. ([Time 0:09:24](https://share.snipd.com/snip/57173720-3f86-4de0-8d96-dfac8c75e795)) - **Limited Remedies For Mass Detentions** - Federal remedies for unlawful stops are limited, making mass detentions hard to redress. - Large-scale sweeps leave many detained without practical avenues for timely relief or compensation. Transcript: David French In other words, that if I individually have my rights violated. The problem you have here, though, Sky, is what's happening is often at large scale. Often what's ending up happening is that people are being detained maybe for hours or sometimes days at a time before they're vindicated, before they're released. And there isn't really a mechanism for them to get any real redress. It's very, very difficult for them to get any damages from the federal government. Skye Jethani What are they going to do? Hire an attorney and file a suit and go through all the expense and the hassle. In the meantime, they may have lost their job because they've been gone for a couple of days because they were detained by ICE unfairly. I mean, there's all kinds of practical impediments to this. And beyond all that, I mean, most people listening to this probably aren't worried about being stopped by ICE on the street and having to prove their citizenship. But do we want to live in a society where a significant amount of the population has to constantly be worried about being detained if they don't have proof of citizenship that is sufficiently Valid that someone couldn't question whether it's a... I mean, this isn't Eastern Europe in the Cold War, right? This is not a Soviet block reality. This is America. David French An incredibly high percentage of our country, both citizens and legal residents, non-citizen legal residents, fit some of these ([Time 0:11:13](https://share.snipd.com/snip/1ede9b7f-72a8-4328-82fe-265035a707c5)) - **Burden Shifted Onto Civilians** - A significant share of citizens and legal residents fit ICE's stop factors, creating broad fear and uncertainty. - That shifts burdens onto individuals to prove status while agents retain anonymity and power. Transcript: David French I mean, this is creating a situation where a significant portion of the American population now has to sit there and worry if I've got to be able to produce papers sufficient to satisfy Some random ICE agent who is under strict quotas and being told and browbeaten into them that they have to deport more, more, more, more. And then they're also being turned against these communities to such an extent that they're extremely hostile and extremely aggressive. And then also they're wearing masks. I mean, this is incredibly intimidating. This is a masked law enforcement agency that is conducting sweeps through American communities. And look, I think, honestly, Sky, that what Kavanaugh thought he was approving is very different from what is happening. And this is something that is an emerging issue in courts with the Trump administration. Courts are now wise to the fact that this administration is not telling the truth. It is not giving them the true story here. So I suspect, Sky, this is my own assessment, that over time, what you're going to be dealing with is less and less and less judicial patience with the administration, less and less willingness To give the administration the benefit of the doubt. ([Time 0:12:52](https://share.snipd.com/snip/88f87bb2-5e6c-4ed6-96a2-1d677f60dd79)) - **Transparency For Government, Privacy For Citizens** - French argued transparency belongs to government while citizens deserve privacy and accountability. - Masked ICE agents with anonymity reverse that principle and increase intimidation. Transcript: David French One million percent backwards, Sky. And to tell you how much this is a reversal for the conservative movement, I once did a PragerU video on transparency. This is Prager University. So this is 10 plus ago on that transparency is for the government, not for the citizen. The citizen has privacy. The government has transparency. Law enforcement agency in context. We weren't masked in Iraq when we were taking on Al-Qaeda. Al-Qaeda. We had name tapes. It's not just that we weren't masked. We had name tapes identifying us. We had rank identifying us. So if an Al- terrorist, and I met many who spoke English well, who could read English, they would know if they, once they were released from detention, if they wanted to reach out after Somebody, they could remember a Captain French, right? They could remember that. And it's not hard to figure out who I am in that circumstance, right? And so we're talking, and your cops who walk the beat every day, your FBI agents who are out there, they're often dealing with some of the worst people in the world. And they've got their face, they've got their badge, they have body cameras, they have, they're known, they're known. ([Time 0:16:50](https://share.snipd.com/snip/d7e4f347-2f56-4234-8156-293b01235ea4)) - **Use 'Unclean Hands' To Rein In Executives** - Apply the legal 'unclean hands' doctrine to trim executive deference when administrations lie. - Deny equitable relief to administrations that misrepresent facts, reducing future abuse of presidential power. Transcript: David French That it's not to create new rules that are negative to the president because Trump is so bad, but it's to strip the benefit of the doubt from the presidency. Okay? And I think that's important not just for Trump purposes, but going forward. And because I do think that one thing that has happened is that we have created a structure that has both over explicitly and implicitly just devolved an enormous amount of discretion Up to the president of the United States and away from. Of congress in particular but that that the presidency has to be trimmed back some some now some of that can only happy happen happen through statutes or or constitutional uh reforms Like constitutional amendments but there are some things that aren't within the law that are applied to normal, everyday people all the time that will really help pull back or rein In the Trump administration. Here's one. We don't need to get too nerdy about this, but let me just give you one example. There's a doctrine under law called unclean hands. And what that means is, is that if you walk into a court and you're asking the court to intervene for you, to enter an injunction for you, injunctions always involve what are called the Balance of the equities. There's always going to be a sense of just subjective fairness related to a decision to grant or deny injunction. Now, that means when I'm going to ask the court to rule for me that a fairness demands that you rule for me, I need to come into the court with clean hands. In other words, I'm not lying to the court. My conduct has been above board. I'm not sending mixed messages. I have not done anything that violates the rules of the court, et cetera, et cetera, et cetera. And so if you walk into a court with unclean hands, sometimes the benefit out disappears. The balance of equities begins to move against you. And one argument that I made in the Times is, it's time to apply this doctrine to the president. When the president is seeking equitable relief, like an injunction, and you're balancing equities, which again are subjective senses of fairness, then the fact that Trump is lying Voluminously, the fact that you cannot trust the assertions of the Department of Justice mean that those balance of equities move against the administration. And you know what? They'll stay that way until you have an administration that plays by the rules. And then they have clean hands and they once again enjoy the benefit of clean hands. You're not changing the rules to undermine the presidency. What you're doing is you're applying the rules, as should happen in a small-R Republican form of government, to the president. And a president who behaves with integrity will enjoy the traditional legal benefits of integrity. ([Time 0:20:10](https://share.snipd.com/snip/6f8860a5-a3e5-4513-8e16-0e6badc3ef84)) - **Institutionalizing Enforcement Creates Long-Term Problems** - Building a large, empowered ICE force creates a durable bureaucracy that outlasts a single administration. - Dismantling or repurposing such forces after misuse will be legally and practically messy. Transcript: David French Monster. This is a huge issue. This is a huge issue. So you recreate ICE as the largest law enforcement agency in the entire United States of America. You grant them impunity with masks, et cetera, to terrorize countless American citizens and lawful residents of the United States of America. And then you, let's say you elect President Josh Shapiro. Well, he's got a 50, 60,000 strong or however much it is. I don't know the exact number. Heavily radicalized, masked law enforcement agency. What do you do with that? Well, you're going to have to. What do you do with all the people, whether rightfully or unrightfully, who've been detained? Do you just go let them out? I don't think. I mean, it's just a huge mess that's been created. It's huge, huge mess, huge mess. I mean, there are certain policy fixes you can make, like get rid of the masks. You can, right. You can change procedures. You can diminish the size of the workforce. I mean, there are things that can be done, but what you are doing and what they're trying to do, I think with ICE almost more than any other part of the government is create a new sort of permanent, Magified part of the bureaucracy is what they're trying to do. ([Time 0:25:40](https://share.snipd.com/snip/238c4882-bf15-4e57-9222-40ab7591edec))