03-13-25 *INTERVIEW* Law Professor Eugene Volokh On Trying to Deport Mahmoud Khalil

Episode Transcript

Speaker 1 (00:00):
I am so pleased to welcome back to the show
a gentleman whom I've only spoken to one time before,
and that was quite a few years ago when I
was on the other station. Eugene Voloch is a senior
fellow at the Hoover Institution at Stanford. He was for
many years a professor of law at UCLA and is
now a Distinguished Professor of Law Emeritus at the UCLA

(00:21):
School of Law. He's also the proprietor of a well known,
or at least well known by legal scholars and nerds
like me, a blog called a Voloch Conspiracy that is
now part of the Fantastic Reason magazine.

Speaker 2 (00:36):
So Professor, welcome back. It's so good to talk.

Speaker 1 (00:38):
To you again. Thanks for making time. I know you're
a very busy guy.

Speaker 2 (00:42):
Always good to be talking with you.

Speaker 1 (00:44):
So I would like to talk with you about this
man named Mahmoud Khalil, Columbia University graduate student who was
arrested and moved to Louisiana and threatened with deportation based
on and I guess what we're going to talk about
is based on speech or conduct. This is maybe part

(01:05):
of the part of the discussion. And I just want
to really stick with areas of law with you. So
why don't you just start with your overview of you know,
how you frame the conversation, and then we'll dig into details.

Speaker 3 (01:19):
Sure, So there are two questions that arise in these
kinds of cases, and the problem is we don't know
all the facts in the khalidl case. Yet. One question
is the worston can someone be deported for criminal activity
let's say, conspiracy to commit trespass, let's say, or a
conspiracy to commit vandalism or something like that. The answer

(01:44):
to that is the constitution perfectly permits that for somebody
who is a non citizen, including for a lawful permanent resident.
Then there's a question of what do the federal statutes say,
And they're very complicated, and they distinguish certain crimes from
other crimes, and there require certain procedures. But there's a
whole statutory scheme there. But as a constitutional matter, the

(02:07):
government can say, if you come to America, at least
until you're a citizen, you'd better keep your nose completely clean.
No crimes, any crimes, We're going to deport you. But
there's a second question. What if the government says we
don't intually think you've committed a crime, but we just
don't like the viewpoints you're expressing. And then maybe communist
viewpoints or not see viewpoints, or viewpoints that promote or

(02:30):
espouse terrorism. We just don't want you here spreading these
views entirely independent of any crimes. They are views that
they that citizens are free to communicate. But if you're
a guest, if you're a visitor in our country, even
a long term guest, we're just going to tell you
can't do this. You can't say these things, and if

(02:51):
you do, we're going to deport you. And as to
the second category, the constitutional question is surprisingly unsettled. The
Supreme Court has not spoken to this in seventy years.
The one time it spoke to it in the early
nineteen fifties, the answer it gave with somewhat ambiguous. Lower
courts are split on this, some saying, hey, once someone

(03:15):
is lawfully in the US, their First Amendment rights are
the same as as citizens' rights, so they can't be
deported for their speech, while others say no, just as
the government can exclude people at the border based on
their political views, and the Supreme Court has said that
that's permissible. Once given that, the government can say, well,

(03:38):
we changed the mind. We let you in, but we
realize now it's a mistake because of things who've said
since then, so we're going to throw you out. So
it turns out that that constitutional question is not a
well resolved question. Finally, let me say, Congress has spoken,
and it has said that people who espouse or promote terrorism,
even just through speech and a very broad definition of

(04:00):
terrorism basically including a wide range of foreign violence, those
people should can be excluded from the country and can
be deported. So in this respect, the Trump administration, again
I can't speak to the details of the Career case,
but at least in its public statements, is quite consistent
with the congressional judgment on this question. The question that

(04:22):
remains is does the First Amendment preempt to that judgment
by the administration and by Congress. But this is one
area where the administration is going along with what Congress said,
rather than as to some other things, it's been trying
to assert its own authority independently of Congress.

Speaker 1 (04:39):
Okay, so I'm not a lawyer, but I think about
this stuff a lot, and I love reading and thinking
about constitutional law.

Speaker 2 (04:46):
So let me let me throw something at you. Here.

Speaker 1 (04:49):
You you describe two categories, one being criminal acts and
one being speech. I would propose to you that maybe
there's a maybe there's an intermediate category that is conduct
that may or may not be criminal, but it is,
but it is conduct that could be categorized as something

(05:13):
that goes beyond beyond speech. Could could there be a
thing like that, because I think that's probably where the
government is going to go when they claim that this
guy is somehow supporting terrorism.

Speaker 3 (05:27):
Well so, so there is of course this third category.
I don't think it's really implicated in the Callute case,
but imagine the government says, you know, we'll deport you
if you drink alcohol. There's no constitutional right to drink alcohol.
It's legal, Americans do it all the time, but we
just don't. We just don't want to you here. Or
to give another example, which is quite common, we let

(05:49):
you in a visitor visa. You're not allowed to work here,
so we're going to deport you if you work. So
there there's no constitutional problem, it's just by just Then
the question is what by statute Congress is allowed and
didn't allow In the Calide cases, I understand it. The
allegations are that he was involved with in various ways

(06:13):
with the people who are engaged in the encampments and
the like the anti Israel speakers at Columbia and there.
I do think that the allegations against him might fall
into the first two categories. One is that it's possible
and they say, look, he conspired with them to commit
various crimes such as trespass, for example, continuing with the

(06:37):
encampment after the property owners Columbia said no. Or maybe
he conspired with them to break into the buildings, which
is a more serious crime. Indeed, needn't have done it
himself so long as he was working closely with him,
and he was working with them, as I understand, at
least according to press A constants some measure. The second
category is they may say, look, we don't even need
to prove that it's enough that they were promoting or

(07:00):
spousing terrorism, and HAMAS is a designated foreign terrorist organization
that engages in foreign violence. That may be sufficient under
the statute, and he conspired with them to help them
promote or a spouse terrorism. That might just be speech,
but it might be punishable or excuse me, it might
be speech that is a basis for deprecation under the statute,

(07:21):
and then the question is does the First Amendment tolerate that?

Speaker 1 (07:23):
Interesting, So there's just more for listeners than for the professor.
But there's a tweet going around that purports to show
a prior social media post by this guy Khalil, and
the very first sentence.

Speaker 2 (07:36):
I'm not going to read the whole thing. I'm just
gonna read the first sentence.

Speaker 1 (07:39):
We are Westerners fighting for the total eradication of Western civilization.
So clearly, Professor, that by itself is speech, although I
imagine a lawyer might use that as an example or
a basis to say that these other things that he
did that are not just speech are motivated by support

(08:00):
or terrorism or or something like that. So so going
going back to what you just said then, and I
take your point on those two categories.

Speaker 2 (08:08):
If the can, can the.

Speaker 1 (08:11):
Government deport somebody for criminal conduct that was never charged,
much less convicted, Yes.

Speaker 3 (08:19):
Absolutely, And this is in fact, as I understand, it's
something that's pretty common because the government sometimes says, look,
we just want you out of here. We don't want
to have to go through this through this process. The
criminal process. It's just like you can be fired from
your job, even a government job, if the uh, if
the employer concludes, sometimes with some necessary process, that you

(08:43):
are that you're guilty of, say stealing from from them.
You know, they don't have to actually have a conviction
in hand in order to fire you. Obviously, deporting someone
is is a much more serious burden on them than
just losing a particular job. Uh. But depretation is a
civil civil treated as a civil remedy. It is independent

(09:04):
of the criminal justice system, at least as a constitutional matter,
and so people can be can be deported for illegal
conduct even even if there's no criminal conviction. No, as
a statutory matter, in certain situations, there might be some
such requirement. It's a very complicated statue. But then there's

(09:26):
nothing inherent in immigration law that precludes someone from being
or essentially that requires a criminal conviction before someone's supported.

Speaker 1 (09:36):
There was some initial reporting that may or may not
be true, but I'm just going to assume it's true,
just so I can ask you the question. There was
some initial reporting that when this guy was arrested, the
arresting officers said to him, your student visa has been
has been revoked. And he said, I'm not on a
student visa anymore. I'm a Green card holder now. And

(09:58):
then they said, well that's revoked. To is there any
important difference under the law about the authority the government
has to deport or the ease with which the government
can deport based on a student visa versus lawful permanent
resident status.

Speaker 3 (10:14):
Well, yes, under the law, under the statutes, indeed, lawful
permanent resident status gives you considerably more serious protections. And
the statute calls for various procedures which presumably are being
followed now to determine whether, in fact this person can

(10:35):
be deported consistently with the immigration statutes. So lawfal permanent
resident status is an important thing. It gives you important protections,
just doesn't give you categorical protections can be taken away. Citizenship.
You know, you're I'm a citizen, I was born in
the USSR, I'm a naturalized citizen. But now at this point,

(10:59):
if I commit a crime, now that I would, but
if I do, you'd be thrown in jail. But at
that point in Congress, whatever the congressional statutes might say,
I can't be can't be thrown out. But until I
got that citizenship. When one is still a lawful, permanent resident,
one doesn't have the constitutional right to remain in the
US anymore. One that whatever rights one has are set

(11:21):
forth by the statutes, they are substantial, and it provided
for substantial procedural protections. But if the right, if the
right conditions are shown, then the person can indeed be deported.

Speaker 1 (11:32):
We're talking with Eugene Wollock, one of the uh one
of the truly great attorneys in the United States. He's
a senior fellow at the Hoover Institution at Stanford. One
more on this, and then I'll switch gears with you
for a second. Let's I'm I'm going to set up
a hypothetical debate and the and I'm going to give
you the two the two arguments that each side has
to argue. One side has to argue in a case

(11:54):
where in a case where it's a gray situation whether
the offense committed was speech or criminal conduct, whether or
not charged. Person A needs to argue we need as
the United States of America to default to the side
of it being protected speech because that's the most important value.

(12:18):
And person B needs to argue we need to default
to it being illegal conduct because we are protecting the
United States of America, not just our culture, but also
our physical safety. Now, I'm gonna guess that if you
could choose which side to argue or which side you believe,
I'm guessing it's the first one. But can you tell
me how you think about that question?

Speaker 3 (12:40):
Sure? So, I think as a policy matter, as a
general matter, people should not be deportable just based on
what would be for a citizen a constitutionally protected speech,
because we as American citizens, I think, have a lot
to gain from hearing out things that are said by foreigners.

(13:01):
Foreigners the world is more than ninety five percent non Americans.
Some of them come here and they tell us their
perspectives that come from a very different, different background That
may be very useful for us for understanding the world.
It doesn't mean we need to be persuaded by them.

(13:23):
We might even say, oh, their views are awful, but
it's actually really important for us to know that those
views are held and to understand why they're held figure
out how to find them. So, I think as Americans,
we are benefited by having people in America, even ones
who say, yeah, Hamas is a wonderful organization.

Speaker 2 (13:40):
But let's go beyond what they say.

Speaker 1 (13:42):
Right, Let's say they've done something like this guy and
it's unclear you know, whether it's criminal, and it hasn't
been charged, but it could be criminal.

Speaker 2 (13:54):
How do you balance that?

Speaker 3 (13:56):
But wait, you say they've done something.

Speaker 2 (13:59):
Yeah, so that.

Speaker 3 (13:59):
Sounds like we know what they've done, and yeah.

Speaker 1 (14:02):
Block heeded a building, block heeded a building and prevented
kids from going to school.

Speaker 3 (14:07):
We know that they blockaded a building. We know that
they've committed a crime. Then the only question is is
it a serious enough crime that we should deport them
for it? Obviously, you know, somebody drives too fast in
a jurisdiction where that street is a criminal offense, we
probably don't want to deport them just for that. Someone's
a drunk driver. Maybe we do. If someone engages in trespass,

(14:31):
it's an interesting question. But if we know that they've
engaged in trespass, then in that case the question is
not just a matter of speech anymore. The question is,
you know, is this something that we should say? Look,
you know people, people sometimes make mistakes. Not that big
a deal, or yes it is a big deal. We
don't want them making these kinds of mistakes here. So

(14:52):
that's why I think the more interesting and important question is,
let's say that what they've done isn't a crime, but
it is each that we think is bad speech, dangerous speech,
evil speech. Should we take the same view as we
take with Americans, which is we're better off allowing that
than forbidding it. Should we say they're not Americans? Just

(15:12):
because we have to tolerate these kinds of awful ideas
among our fellow citizens doesn't mean we need to import them.
So that's the question. I'm inclined is a policy matter
to say we should protect a non citizens speech in
this kind of situation, But as a constitutional matter, there
certainly is a good argument that one attribute of sovereign

(15:34):
and he is to decide who gets to stay in
America and who doesn't. At least I mean, when we're
talking about non citizens.

Speaker 2 (15:41):
I looked that. I think I'm basically on the same
page with you.

Speaker 1 (15:45):
I do think that some of the most interesting legal
cases are made by the least sympathetic defendants. Right, this
guy says he's fighting for the total eradication of West
and civilization, and he says that he is part of
an internationalist into FADA. This guy for me not just

(16:09):
because I'm Jewish, but also because I'm American and I
don't like death and terrorism.

Speaker 2 (16:13):
This guy is a really bad guy.

Speaker 1 (16:15):
If I thought he didn't commit any crimes and he
only said that stuff, even I would have a hard
time deciding. I tend to be close to a free
speech absolutist, but man, it does sure feel like in
inviting a cancer into our country. I'll give you the
last thirty one seconds because I like prime numbers.

Speaker 3 (16:32):
Prime numbers are wonderful, and there are so many of them,
So I totally appreciate your point, and I think that's
a very plausible argument. Let me just say the way
the Statute defines espousing or promoting terrorism, terrorism includes advocacy,
for example, of any kind of foreign assassination or attack

(16:53):
on a foreign head of government. So under the statute,
if somebody says, you know, I think some Russian should
go and kill Putin because that's the only way to
bring peace to both Russia and Ukraine, that would be
a deportable offense under the statute. So we have to
ask kind of how would it apply not just to
the people who engage in advocacy of some sort of

(17:15):
foreign violence, but also other foreign violence that we might
think they're actually at least a plausible idea. That as
always a very the kind of question that free speech
to law.

Speaker 2 (17:24):
Poses for us. Yeah, fantastic.

Speaker 1 (17:26):
I said, I'd give you the last word, but I'm
going to give myself the last word just to just
to agree with what you said and add one thing,
and maybe I'll give you the last last word. One
of the reasons I would lean toward letting them stay
is that the more aggressive you get in deporting people

(17:46):
based on whether you think things they say violate that
particular law, the more it's going to politicize that process.
And you're going to have one administrations trying to deport
a bunch of people who say one kind of thing,
and then an other administration trying to deport a bunch
of people say another kind of thing. And I think
that's bad for bad for the country. What do you think,

(18:07):
real quick?

Speaker 3 (18:07):
Yeah, always a very serious concern.

Speaker 1 (18:10):
Eugene Wolock is a Senior Fellow at the Hoover Institution
at Stanford and a Distinguished Professor of Law Emeritus at
the UCLA School of Law. Check out the Voloch Volokh
if you didn't know how to spell it, the Volock
conspiracy blog, which you can find over at reason dot com.
It's been great for many, many years, Professor. I'm really

(18:30):
grateful for your time. I know you get a lot
of interview requests, and I'm just very happy you made
time for us.

Speaker 3 (18:36):
Always a great pleasure anytime.

Speaker 2 (18:37):
Thanks so much, Thank you,