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Police Reform Intersects With Surge In Crime; DOJ Leak Probe Seized Data From Trump's Political Enemies; Should COVID Survivors And The Vaccinated Be Treated The Same?; When Free Speech Conflicts With Progressive Causes; Millions Seized In Raid On Safe Deposit Boxes. Aired 9-10a ET

Aired June 12, 2021 - 09:00   ET




MICHAEL SMERCONISH, CNN HOST: Temperatures are rising and so is the crime. I'm Michael Smerconish in Philadelphia. We haven't even yet reached the traditional summer spike in crime and yet last night alone, 13 were injured in a shooting in downtown Austin. In Savannah, Georgia, one person was killed, at least eight others were wounded in another shooting. Major U.S. cities already experiencing historic murder rates after 2020 saw a 33 percent increase in homicides.

In the first three months of this year, the homicide rate in more than 30 U.S. cities increased by 24 percent and gun assaults increased by 22 percent compared to the same time period in 2020. Just look at Atlanta where homicides are up nearly 60 percent in 2021. Los Angeles, homicides increased nearly 27 percent since 2020. Here in Philadelphia, as of May 21, homicides year-to-date are up 38 percent.

This unprecedented increase in violence coincides with a push for police accountability in the wake of George Floyd's murder and one example of a policing policy overhaul can be found right here in Philadelphia in a three-month pilot program aimed at overcoming racial bias. Police officers in Northwest Philadelphia will no longer be allowed to stop or detain people for certain quality of life violations which account for about 40 percent of all stops, according to "The Philadelphia Inquirer."

The violations included in this pilot program are still being finalized, but they may include panhandling, smoking marijuana, urinating in public, boom cars or holding open liquor containers. As part of the new protocol that begins on August 1st, police must first tell the offender to quit the behavior or move along and police can only conduct a stop if the person doesn't comply.

The program is part of other measures that were ordered by a federal judge who's overseeing decade-old civil rights litigation regarding the city's stop and frisk practices. A lawyer for the Plaintiffs told "The Inquirer" that they'll ask the court to expand the pilot program citywide unless the city shows major problems. In a statement to CNN, the city of Philadelphia said, "We look forward to working further with Plaintiff's counsel to implement, but more importantly, analyze the results of the program. We certainly hope that the pilot leads to better outcomes for the community and if not, we are committed to talking through changes to the program or other options."

However, in an April court filing, the city had stated that barring these stops would, quote, "Deprive PPD of a valuable crime-fighting tool at a time when Philadelphian's homicide rate have never been higher and could have grave consequences for policing in Philadelphia and for the safety of Philadelphia citizens."

At that time, the Plaintiff's attorneys responded by saying there's no causative relationship between quality of life stops and shootings in the city, but this intersection of police reform and an unrelenting surge in gun violence is leaving law enforcement officials across the country scrambling for solutions.

Chuck Wexler, the executive director of the Police Executive Research Forum, told CNN, "The whole nature of proactive policing is being questioned at the same time you're seeing increases in murders and shootings."

Well, here to discuss is somebody who knows policing in this city like the back of his hand, CNN senior law enforcement analyst Charles Ramsey. He's the former commissioner of the Philadelphia Police Department, former Washington D.C. chief of police as well. Chief, great to see you again. Here's, I think, the key question. What, if anything, is the relationship between the quality of life offenses and the more serious crime?

CHARLES RAMSEY, CNN SENIOR LAW ENFORCEMENT ANALYST: Well, there is some relationship. How much, I mean, is always subject to debate, but certainly I think it goes back to the old broken windows theory that if you start dealing with disorder type issues, you can lessen future crime in terms of violent crime and other types of behavior like that.

You know, I don't know how much of an impact this is going to have here in Philadelphia. It's going to -- as far as the police are concerned, but it will have an impact on community. The reason police even enforce quality of life is usually from 911 calls. I mean, our more challenged communities are the very ones that have to deal with a lot of this stuff, you know, smoking marijuana in public, dice games was one of the things listed, public urination, all those kinds of things.

It's not just crime that they have to deal with, they have to deal with disorder, but the more you take police out of the mix in terms of being able to interact with people, to make stops, constitutional stops obviously, the more likely you are to have some problems down the road, but we'll see.


SMERCONISH: From a recent federal court order, and I'll put this up on the screen as I read, this is the way that it's supposed to flow.

"In this pilot project, officers who observe or respond to reports of quality of life offenses shall first conduct mere encounters, advising the individuals involved to refrain from the prohibited conduct and/or to move from the area in which the alleged offense has occurred. If the individuals do not comply with the directive to cease the offending conduct or to move from the area, the officer may conduct an investigative detention consistent with the current directives that require reasonable suspicion or probable cause of criminal conduct."

Chief, is this good or bad news for the beat cop? In other words, how do you think they will receive this change in responsibility?

RAMSEY: I think it's going to be very important that the commissioner explain fully exactly what this means. This is not something that says don't enforce at all. It's saying first tell people to move along if they're congregating or smoking marijuana or what have you before you take any kind of enforcement action. I think some policemen will look at that and say, well, why should I bother at all? There are others that already tell people to move on before they take any kind of enforcement action.

So we'll have to monitor this very, very carefully, but, again, I think the biggest impact is going to be on the public that call police, see police pull up, they don't see any results from having called police and I think that's going to erode trust even more than it is right now, but, again, we'll have to wait and see, but I have some concerns about it, but it may not be as bad as people think.

SMERCONISH: Listen, it's going to be a very interesting lab experiment in the aftermath of the George Floyd murder. This is not directly tied to that case. I think I made clear this is the result of a 10-year-old civil rights litigation, but it will be very interesting for the whole country to watch what's about to play out here. Thank you, Chief, as always. I love having you.

Up ahead, trying to pursue leaks, President Trump's Justice Department secretly subpoenaed Apple for data from 73 phone numbers, including those of House Intel Committee Democrats. Was this an unprecedented abuse of power?

And as America reopens, proof of vaccinations being mandated by cruise ships, college campuses, rock concerts and more, but as "The Wall Street Journal" illustrated with this recent cartoon, that shuts out people who've achieved immunity from having already had COVID-19 and recovered. I'll talk to a doctor who says that isn't right.

That's why I want to know what you think at the website this week. Answer the survey question. Should those who've had COVID be given the same access to venues as those who've been vaccinated? Go vote.




SMERCONISH: The Justice Department's inspector general has announced that it will investigate the Department's handling of a leak investigation into former President Donald Trump's political enemies. This follows the bombshell revelation that prosecutors in the Trump Justice Department subpoenaed Apple for data from the accounts of House Intel Committee Democrats along with their staff and family members as part of a leak investigation.

Apple says the DOJ sent a broad request in February of 2018 demanding metadata on 73 phone numbers and 36 e-mail addresses. Now Microsoft says it received a subpoena in 2017 related to a congressional staffer's personal e-mail account and it's all coming to light because of the gag orders having recently expired, so the companies notified their customers.

Here now to help make sense of it all, CNN senior legal analyst Elie Honig. He is the former assistant U.S. attorney for the Southern District of New York and author of the forthcoming book called "Hatchet Man: How Bill Barr Broke the Prosecutor's Code and Corrupted the Justice Department." Elie, may I play Devil's advocate with regard to this evolving narrative of the big, bad Bill Barr? Is that all right with you?

ELIE HONIG, CNN SENIOR LEGAL ANALYST: You can always play Devil's advocate, Michael. You are very good at it. Go right ahead.

SMERCONISH: OK. So the reporting that I'm seeing suggests that the subpoenas relative to Schiff and Swalwell, which are deriving most of the attention, actually originated on the watch of Jeff Sessions and Sessions himself had recused himself from all matters pertaining to Russia. So how much of this really is all about Bill Barr?

HONIG: Yes. So first of all, Michael, one of the key questions that we need to figure out is where did the impetus come from? Where did this start from? Did it come from the White House? Did it come from inside DOJ? Now, here's where Bill Barr bears responsibility. This investigation of members of Congress started before Bill Barr when Jeff Sessions was AG. He was recused. We don't know exactly who was leading this up as DOJ.

However, one of the things that prosecutors did here was get a gag order. They went to a judge and said this is very secretive and we need to tell Apple you can't tell anybody about this. You can't tell Eric Swalwell, you can't tell Adam Schiff that we're looking for their phone records and then that gag order lasted a year and another year.

And eventually Bill Barr said, yes, we need to re-up that gag order. We need to keep it in place and the reporting is that even once the investigative trail had gone totally cold, Bill Barr still said let's keep at it, let's keep digging. If he didn't have a basis for that, that's an abuse of power.

SMERCONISH: OK. This brings me now to pushback item number two which is that these things don't happen in a vacuum and not only would that gag order have necessitated some level of judicial approval, but so, too, the initial subpoenas.

[09:15:09] So there had to be some kind of a showing which led to all of this.

HONIG: There should have been, Michael, and one thing that's really important to understand, prosecutors have enormous power over subpoenas. I used to literally keep a stack of subpoenas on my desk and give them out to FBI agents, but you don't pass them out like candy. You need a couple things. One, you need what we call predication. you need facts showing that you're going to -- you're likely to find evidence with this subpoena.

One of the big questions is did they have predication or were they just firing off subpoenas because they knew Donald Trump was angry because Donald Trump was publicly calling for retribution against Adam Schiff?

The other thing you need is specificity. Seventy-three subpoenas to 73 phone accounts, 36 e-mails, over 100 subpoenas? People talk about a fishing expedition, Michael. That is like dragging the entire bay and seeing what you dredge up. So these are the questions that we need answered.

SMERCONISH: Quick final pushback. Doesn't the government have a responsibility to protect classified information?

HONIG: Yes, they do. It is a crime to disclose classified information without authorization. The question here is not did the government commit a crime in the way they did this investigation, but was there an abuse of power, an abuse of discretion, an abuse of prosecutorial judgment. All the indicators I've seen are that there was a very serious abuse of that prosecutorial discretion.

This is why the inspector general has a job to do, this is why Congress has a job to do, this is why Merrick Garland has questions to answer.

SMERCONISH: Let's do this again when that book comes out, OK?

HONIG: Gladly. Thank you, Michael.

SMERCONISH: Thanks, Elie. Let's see what you're saying via my Smerconish Twitter and Facebook pages. I think this comes from the world of Twitter, "Hmmm Apple doesn't/won't give up info to solve murder cases, but yet turn loosey-goosey for the crooked AG Barr and President 45," meaning Donald Trump.

Hey, look, I'm not -- I'm not coming to Barr's defense necessarily, but watching this story unfold for the last 24 or 48 hours, the points that I raised with Elie, I think, are meritorious. Some judge, apparently a magistrate judge in this case, had to approve the utilization of subpoena power here.

The government does need to protect classified information and much of what I've been reading about originated on Jeff Sessions' watch, not on Bill Barr's watch and Sessions himself had recused himself. So more unknown than known at this age. Is it troublesome? Yes, it's troublesome, but I want to know everything, as usual.

Still ahead, proof of vaccination is the new hot ticket to everything from sporting events, rock shows, even sections of restaurants, but those who already achieved immunity from having contracted the coronavirus and survived, so-called natural immunity, are being denied access. Is that fair?

Is that medically sound? I want to know what you think. Go to and answer this week's survey question. Should those who have had COVID be given the same access to venues as those who've been vaccinated?





SMERCONISH: Now that America is reopening for business, news is exploding with the scheduling of live events, but there's a caveat for many of them. To enter, you need not just a ticket, but also proof of full vaccination. However, there's a large segment of the population that this policy shuts out, those who have immunity from having had COVID, so-called natural immunity, but not having been vaccinated. Should they be afforded the same benefits?

June 20th, just eight days from now, the Foo Fighters are reopening Madison Square Garden at full capacity. June 26, Bruce Springsteen rebooting his one-man Broadway show. Dead & Company will hit the road in August. All three acts requiring proof of full vaccination. For Dead & Company, it's required just for those who want to stand in the pit. Springsteen and the Foo Fighters are making exceptions for those under 16, but are requiring proof of negative COVID tests.

Several of the big cruise lines have instituted a vaccination requirement for some or all of their cruises. Some restaurants across the country instituting vaccinated and unvaccinated seating sections, kind of like the old days of having a smoking section. And hundreds of colleges have already made vaccines mandatory for their campuses this fall, but isn't all this unfair to those who've survived COVID and have natural immunity?

Here are some interesting numbers as of today. The adult population with at least one shot, 64.1 percent, fully vaccinated adults, 53.6 percent. In a recent "Wall Street Journal" piece called "The Power of Natural Immunity," Johns Hopkins professor Dr. Martin Makary says we should be including survivors among the immune, writing, "Some 80 to 85 percent of American adults are immune to the virus: More than 64 percent have received at least one vaccine dose and of those who haven't, roughly half have natural immunity from prior infection." Makary cites a recent study by the Cleveland Clinic of 1,359 people previously infected with COVID who were unvaccinated. Quote, "None of the subjects subsequently became infected, leading the researchers to conclude that individuals who've had SARS-COVID2 infection are unlikely to benefit from COVID-19 vaccination."

Makary's point being that the people who've had COVID should be counted among those who have immunity, but these recent restrictions suggest otherwise. It's impossible to know how many people who have had COVID have also gotten vaccinated because the CDC doesn't track those numbers.


The closest thing that we could find to an estimate comes from the Kaiser Family Foundation. Its survey from May of 2021 found 59 percent of those who say they have tested positive for COVID-19 at some point have also received at least one dose. This is similar to the share who have not tested positive who said they've gotten at least one dose, 63 percent. Shouldn't those millions who didn't get vaccinated, but have immunity as COVID survivors get to see the Foo Fighters?

Joining me now is Dr. Jay Bhattacharya, Professor of Medicine at Stanford University, a research associate at the National Bureau of Economic Research. He co-authored a piece on this subject for titled "The Beauty of Vaccine and Natural Immunity." Dr. Bhattacharya, make the case. Why should someone who's had COVID, but not vaccinated get to see the Foo Fighters at Madison Square Garden?

JAY BHATTACHARYA, PROFESSOR OF MEDICINE, STANFORD UNIVERSITY: The key thing is that if you've had COVID, you have very, very complete protection against severe disease and bad outcomes just like the same way with the vaccine. You're protected in exactly a similar way. So why discriminate against people who have had COVID and recovered? They're protected just like the vaccine in many ways.

The other thing that's important to remember, Michael, COVID hasn't hit randomly in the population. It's had this sort of almost discriminatory effect. It's minorities and poorer populations that hit harder by COVID in some ways and they're also the more vaccine hesitant parts of the population in some cases.

So in a sense, we're like discriminating against people who are sort of on the -- on the margins, but with absolutely no public health reason behind it.

SMERCONISH: You wrote that for my website, as a matter of fact. You said, "Businesses that exclude the unvaccinated are, in effect, discriminating against the working class and the poor who have already suffered through the disease." OK. How would this work in practical terms?

BHATTACHARYA: I mean -- I mean, I can tell you on one side. Like I think a lot of these venues, they could ask for antibody or sort of if you had an antibody level, for instance. Also if you have had COVID, presumably you saw a doctor and learned about it or had a positive PCR test before. That should actually be enough because if you've had COVID and recovered, then you're -- then you're immune, again, in the same way the vaccine.

So I think just asking for like a doctor's note I think could be enough. I mean, that would -- just like the same way you ask for a vaccine card is essentially a doctor's note.

SMERCONISH: Dr. Bhattacharya, maybe a naive question from me lacking your expertise, but what if I've had COVID and don't necessarily show antibodies?

BHATTACHARYA: I mean, that doesn't mean that you aren't protected. In fact, quite the opposite. Antibody levels do fade, but there's other mechanisms of immune protection, T cells and other mechanisms of immune protection, that last much longer than antibodies. So even though the antibody levels maybe turn negative after a few months, still you're protected, again, in the same way as antibodies against COVID from the vaccine.

The mechanisms of immunity are the -- are actually quite similar from the vaccine and natural infection. So why are we discriminating between the two?

SMERCONISH: Do we have enough data? Do we have enough science that allows a comparison between the length of your protection by virtue of vaccination versus natural immunity, meaning you've already had COVID?

BHATTACHARYA: I mean, in some sense we know -- since we've had the disease longer than we've had the vaccine, we know that the natural immunity lasts at least longer than the -- than the vaccine. We don't know of course -- we haven't had more than just a year and a half experience of the disease at all, but all the other mechanisms of immunity, T cells, B cells and whatnot, those look like they respond for quite a long time from both natural immunity and the vaccine.

SMERCONISH: Quick final question. If it's as straightforward as you've presented it, then why are policy makers, why are private entrepreneurs responsible for the type of business that we're discussing? Why haven't they adopted this position?

BHATTACHARYA: I'm not really sure actually. I think partly we think about the vaccine as something we can control. You can't control if you got or didn't get the disease, but I don't think that's the right thing to do. I think we really should rethink this because it doesn't make public health sense and as I said, it discriminates against the poor and others who got the disease before and, for whatever reason, are vaccine hesitant.

SMERCONISH: Dr. Bhattacharya, thank you as always.

BHATTACHARYA: Thank you, Michael.

SMERCONISH: Checking in on social media. I think this comes from the Twitterverse. What do we have? "Yes. My son had COVID, tested positive for antibodies. His college is making," him, I guess that should be, "take the vaccine anyway. It's like performing unnecessary medical treatment."


I'm no expert. Don't even play one here on television. I think by all accounts you're better long term having been vaccinated even in comparison to having had the virus itself. But Dr. Bhattacharya and others -- Dr. Makary who wrote for the "Journal." They really asked an interesting question, what about those who've already had it, survived, have antibodies should they be treated like those who received the vaccination? And that's why it's today's provocative survey question.

So, go vote at "Should those who have had COVID be given the same access to venues as those who have been vaccinated?"

Still to come, the ACLU has always defended the First Amendment's right to free speech even if it's the Nazis who are speaking. But now many in the organization are saying it's not right for them to defend right wing extremist rhetoric. Isn't that the very point of free speech?

And the FBI wants to keep a fortune in gold, cash, and jewels from a unique raid in Beverly Hills. Was it an abuse of power?



SMERCONISH: The American Civil Liberties Union is having a bit of an identity crisis. Founded a century ago, the ACLU defended First Amendment rights and advocated for free speech no matter what was said or who is saying it. And though the non-profit calls itself non- partisan the ACLU has taken increasingly progressive stances over the last few years serving the Trump administration with hundreds of lawsuits and even pouring money into a 2018 ad for Georgia's then gubernatorial candidate Stacey Abrams despite saying they don't oppose or endorse political candidates.


UNIDENTIFIED FEMALE: Stacey Abrams joins Nathan Deal on bipartisan reforms to reduce costs. And Stacey Abrams will end dependence on private prisons savings millions that could instead be used for treatment.

UNIDENTIFIED FEMALE: We were so destroyed as a family.

UNIDENTIFIED FEMALE: ACLU does not endorse or oppose candidates.


SMERCONISH: Now, "The New York Times" reports the organization is torn over internal tensions leaving some wondering whether it has abandoned a founding principle, stark devotion to the First Amendment. As "The Times" reports -- quote -- "Its nation and state staff members debate, often hotly, whether defense of speech conflicts with advocacy for a growing number of progressive causes, including voting rights, reparations, transgender rights and defunding the police.

Those debates mirror those of the larger culture, where a belief in the centrality of free speech to American democracy contends with ever more forceful progressive arguments that hate speech is a form of psychological and even physical violence."

CNN reached out to the ACLU for a response. Their executive director, Anthony Romero, wrote, in part, "Today, the ACLU boasts a staff that is much larger and more diverse in their backgrounds and viewpoints. Still, our core commitment to freedom of speech remains unwavering.

Most recently, the ACLU has defended the rights of anti-Semites to protest in front of a Synagogue, the rights of Trump supporters to post lawn signs, and stood up for the NRA against government overreach from a progressive New York attorney general."

One of the lawyers who helped build the ACLU still thinks the organization may be losing its way. David Goldberger argued one of the ACLU's most famous cases defending the free speech rights of Nazis in the '70s who wanted to march in Skokie, Illinois, the home of many Holocaust survivors. And to someone who is Jewish he finds that Nazis reprehensible yet defended their First Amendment rights anyway. David Goldberger joins me now.

Counsel, thank you so much for being here. Do you think against the backdrop of today's ACLU your representation relative to Skokie in the '70s would have been permitted?

DAVID GOLDBERGER FORMER LEGAL DIRECTOR OF ILLINOIS ACLU: I have my doubts and I've always doubted it because the new guidelines say you have to take into account the feelings and the sensitivities of minority groups that might be offended by or affected by the speech you're defending.

SMERCONISH: Is this a generational divide? Is that what explains sort of the division now that seems apparent in the ACLU?

GOLDBERGER: It's partially a generational divide and it's partially a decision to diversify the staff and be inclusive in terms of the backgrounds of the staff, but without paying enough attention to whether the people that are being hired are committed to the defense of civil liberties as opposed to defending the groups and the organizations that they sympathize with.

SMERCONISH: What do you think the approach should be? How would you frame the mission of the ACLU according to David Goldberger?

GOLDBERGER: Well, I don't think it's according to David Goldberger. I think it's according to basic constitutional principles that the fundamental civil rights that we have are based on neutral principles of law and that is that the law applies equally to everyone no matter who they are or no matter their identities, no matter how offensive they are.

SMERCONISH: How much of this is attributable to the sort of (INAUDIBLE) of the Trump years? GOLDBERGER: The Trump years have been kind of magnet for people to take sides. You know, identity politics has trumped everything, so to speak. But the -- basically the functioning of the ACLU is that it has got to resist those pressures and needs to stay true to principle rather than being buffeted by the pressures of the day.


SMERCONISH: Mr. Goldberger, I can't imagine it was easy for you in the '70s to represent the Nazis who wanted to march in Skokie. How did that change your life on a day-to-day basis?

GOLDBERGER: Well, there was incredible pain and, you know, basically hated the clients, but what it did, in terms of changing my life was making me understand that there are sensitivities on all sides that need to be addressed, that is, including the survivor community and folks in similar positions, but that principles -- neutral principles of the constitution have to surmount all of that.

SMERCONISH: Thank you so much for that representation and for the lesson you've just provided us. We really appreciate it.

GOLDBERGER: Pleasure to do so.

SMERCONISH: Let's check in on your tweets and Facebook comments. From Twitter, I think, what do we have?

No. Don't waste precious ACLU resources defending their hateful speech. Let them hire their own lawyers.

No, Lawyer Jeff. I mean, if that were the case, then as you just heard from David Goldberger, the Nazis would not have been provided representation for their free speech right and you're probably saying, yes, that is a damn good thing. But the point he is making, I think, is you can't pick and choose based on your personal view of what that group may represent generally. Instead, it's a strict constitutional analysis of whether there is a First Amendment right at stake and he argues that needs to be the framework for the modern ACLU much as it was in the past.

I want to remind you to answer the survey question right now at I already explained it with the Dr. Bhattacharya. Should those who have had COVID, meaning some level of natural immunity, be given the same access to venues as those who have been vaccinated?

Still to come, fascinating case. This private safe deposit business in Beverly Hills assured their customers they didn't have to reveal anything about their identities. But as the "L.A. Times" reported the FBI raided the place and seized the contents seeking proof of charges of money laundering and other illegal activities. They're now trying to keep the $86 million in cash that they found. Was this a government overreach? I'm going to talk to one man who is trying to get his money back.


SMERCONISH: Eighty-six million dollars in cash, gold and silver bars, Rolex watches, jewelry, and $1.3 million in Vegas casino chips. According to the "L.A. Times" all these were seized by the FBI during a late March raid of about 800 private safe deposit boxes in Beverly Hills. And the bureau now seems to be calling finders keepers for a lot of it. Was it an abuse of power? Here is an ad touting the boxes to potential customers.


UNIDENTIFIED MALE: Safe deposit boxes just got a lot safer at U.S. Private Vaults with iris scan identity verification, 24/7 monitoring by ADT, and a 50-ton steel vault you can be sure your belongings are secure. And unlike traditional bank deposit boxes U.S. Private Vaults are 100 percent private allowing your identity to remain completely anonymous.


SMERCONISH: Completely anonymous. Well, prosecutors charged U.S. Vaults with conspiring to sell drugs and launder money, and a judge OKed the raid. But since the customers, themselves, were not being charged, U.S. Magistrate Judge Steve Kim put limits on the warrant saying that, while the FBI could seize the boxes themselves -- quote -- "This warrant does not authorize a criminal search or seizure of the contents of the safety deposit boxes.

In a statement to CNN the U.S. attorney's office says, "We have done neither a criminal search nor a criminal seizure of the contents of the boxes. Our actions are in full compliance with the warrant."

The "L.A. Times" also reports that while the bureau has returned or plans to return the contents of some 250 boxes, it's trying to retain the contents of another 369 alleging that they are the proceeds of criminal activity. The government primary uses forfeiture laws to deter crime, the threat that assets tied to criminal activity will be confiscated. And it's often invoked in cases where there isn't enough proof to go to trial.

Several box holders have filed several lawsuits against the government. Plaintiffs in one class action suit are claiming a violation of Fourth Amendment protection against unreasonable searches and seizures. And Fifth Amendment right not to self-incriminate they're now seeking return of their property.

So, did the FBI overreach? We reached out to the FBI who referred us to the U.S. attorney's office who provided a statement about these seizures, which reads, in part, "In some cases we either have returned or are in the process of returning items. If someone makes a claim to the money or other items found in a particular box, that money could be returned or that issue would be litigated in open court."

Joining me now is one such litigant, Joseph Ruiz and his attorney Robert Frommer. Mr. Ruiz, what was in your box and where did it come from?

JOSEPH RUIZ, PLAINTIFF IN LAWSUIT AGAINST FBI: It was $57,000 and it came from two settlements.


SMERCONISH: And has that money been returned to you?

RUIZ: No, sir.

SMERCONISH: My understanding is that this search took place over the span of several days because it was so complicated, that you happened upon the scene. What did you see when you got there?

RUIZ: I saw them stealing our stuff, just taking what they wanted.

SMERCONISH: Did you ask at that moment, hey, can I have my money, that's my $57,000?

RUIZ: I didn't tell them what was in it, but I did ask if I could go in there and they treated me like a criminal. They had five agents asking me questions. And I'm, like, I just showed up. Why am I being interrogated? They started asking if I had cartel connections, which is stupid.

SMERCONISH: Mr. Frommer, he's not had his $57,000 returned to him. Wherein lies the burden of proof now.

ROBERT FROMMER, ATTORNEY FOR JOSEPH RUIZ/SENIOR ATTORNEY, INSTITUTE FOR JUSTICE: The burden relies on the government. And what the government has done to U.S. Private Vaults' customers, including Joseph Ruiz, it really is the biggest strong-arm robbery in American history.

The government was told that they could not conduct a criminal search and seizure, but that's exactly what they did. Now they're holding Joseph's and hundreds of other people's property hostage and telling them they have to come forward and prove their own innocence just to get their stuff back. That's not just wrong, that's unconstitutional.

SMERCONISH: OK. In other -- in other words, wherein you would expect that the burden would be on the government to prove that Mr. Ruiz or anybody else affected by this has done something wrong, the government is saying, if I understand you correctly, no, you've got to prove to us that Mr. Ruiz's cash was not ill-gotten.

FROMMER: That's what the government is trying to put forward. And the way that they broke into these security boxes violates the constitution, as you pointed out, the Fourth Amendment. Searching -- they might have thought that the U.S. Private Vaults, the company, did something wrong, but that would be like -- what the FBI did here would be like searching every apartment in an apartment building because you found the landlord dealing drugs in the lobby. That's just not how the Fourth Amendment works.

SMERCONISH: But I don't understand how this could have worked. In other words, how could they have searched safety deposit boxes or the operator of a safety deposit box company without looking in the boxes themselves? By definition this thing was never going to work properly, right?

FROMMER: No, there was a very easy way they could have done this. The U.S. Private Vaults' company was indicted. They could have -- the easiest way to have kept everybody's stuff safe would have been just to leave it all in the vault and tell the customers to come on down and get their things.

After all, the government did not accuse or have any evidence that any customer committed any crime, yet they're now trying to take almost $100 million of people's most prized possessions.

SMERCONISH: Mr. Frommer, if tens of millions of dollars go uncollected, that's a bad word choice, if people don't step forward and say, that's my money, like Mr. Ruiz is doing, does that tell us something about what was really going on by a significant number of their customers?

FROMMER: No, I don't believe so. People have the right to financial privacy in the United States. Everyone is entitled under the Fourth Amendment to have a secure place to store their stuff. People -- and it's perfectly legal to have a large amount of cash.

I sometimes myself have to carry a large amount of cash for one reason or another. There's nothing illegal about it. There's nothing suspicious about it, and there's no reason for the government to steal Joseph's life savings.

SMERCONISH: What a remarkable case. Mr. Ruiz, make sure that Mr. Frommer gets the movie rights for this on your behalf, OK?

RUIZ: That's right. He deserves it.

SMERCONISH: Still to come -- thank you, gentlemen. Still to come, more of your best and worst tweets and Facebook comments. And we'll finally give you the results of the survey question. You can still go vote at It's provocative. "Should those who have had COVID be given the same access to venues as those who have been vaccinated?"



SMERCONISH: This should be interesting. Time to see now how you responded to this week's survey question at I was asking, "Should those who have had COVID, meaning some form of natural immunity, be given the same access to venues as those who have been vaccinated?"

Hit me with the result. Let's see what you're saying. Fancy graphics. Oh, wow. Two-thirds say no. How come? Sixteen thousand and change have voted and two-thirds of you are saying, no, they should not.

I presume because you think it would be -- it would be difficult as a practical matter, like how are you going to enforce this? But I would say no more difficult than how are the Foo Fighters going to ensure that everybody in Madison Square Garden in eight days really has been vaccinated or the same for "Springsteen on Broadway" or a cruise ship.

Catherine, what do we have from social media? Real quick. Time for just one.


I dig it. The purple hues are kind of your signature. Thank you so much. Yes, do you like it? And we just unveiled the new skyline today. Kind of Andy Warhol-ish, isn't it? I'll see you next week.