1 00:00:03,160 --> 00:00:07,960 Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio. 2 00:00:09,400 --> 00:00:12,840 Speaker 1: The January six Committee continues to build its case that 3 00:00:12,960 --> 00:00:17,080 Speaker 1: former President Donald Trump instigated the violence at the Capitol. 4 00:00:17,680 --> 00:00:21,040 Speaker 1: This week, we heard from Trump insiders like former Attorney 5 00:00:21,079 --> 00:00:24,800 Speaker 1: General William Barr that Trump was not interested in hearing 6 00:00:24,840 --> 00:00:28,240 Speaker 1: the facts about his false claims of election fraud. And 7 00:00:28,360 --> 00:00:32,760 Speaker 1: I went into this and would you know, tell them 8 00:00:32,760 --> 00:00:35,760 Speaker 1: how crazy some of these allegations were. There was never 9 00:00:36,400 --> 00:00:42,559 Speaker 1: there was never an indication of interest and what the 10 00:00:42,600 --> 00:00:46,519 Speaker 1: actual facts were. Attorney General Merrick Garland says he and 11 00:00:46,560 --> 00:00:49,960 Speaker 1: the Justice Department are listening to the hearings, but the 12 00:00:50,080 --> 00:00:53,279 Speaker 1: question is whether they'll act on them. Joining me as 13 00:00:53,320 --> 00:00:57,960 Speaker 1: former federal prosecutor Eli Hoenig, the Committee is obviously laying 14 00:00:57,960 --> 00:01:02,160 Speaker 1: out a roadmap for prosecuting former President Trump. Do you 15 00:01:02,200 --> 00:01:06,679 Speaker 1: think the evidence presented so far provides the basis for 16 00:01:06,760 --> 00:01:10,039 Speaker 1: potential criminal charges? So, jan let me say, first of all, 17 00:01:10,160 --> 00:01:13,080 Speaker 1: there's been a notable change in tone from the committee members. 18 00:01:13,120 --> 00:01:15,080 Speaker 1: If you think back a few weeks and months ago, 19 00:01:15,120 --> 00:01:17,880 Speaker 1: whenever they were asked about are you trying to encourage 20 00:01:17,920 --> 00:01:20,319 Speaker 1: or pressure prosecutors to bring charges, they would always sort 21 00:01:20,319 --> 00:01:22,520 Speaker 1: of demur. They would say, well, it's not up to us. 22 00:01:22,560 --> 00:01:26,120 Speaker 1: Now they are openly talking about illegality and conspiracy, so 23 00:01:26,120 --> 00:01:28,600 Speaker 1: there's no question to me that they're trying to send 24 00:01:28,600 --> 00:01:31,400 Speaker 1: a message here to prosecutors. Is there enough to prosecute, 25 00:01:31,600 --> 00:01:33,960 Speaker 1: that's a complicated question. I think that there is a 26 00:01:34,000 --> 00:01:38,160 Speaker 1: compelling foundation being laid that Donald Trump and others had 27 00:01:38,280 --> 00:01:42,080 Speaker 1: potentially criminal intent, and that the intent was to obstruct 28 00:01:42,080 --> 00:01:44,520 Speaker 1: Congress and potentially to defraud the United States. Not I 29 00:01:44,520 --> 00:01:47,400 Speaker 1: don't usually like to use so many hedge words potential, potential, 30 00:01:47,640 --> 00:01:50,000 Speaker 1: but let me tell you why I'm doing that. We 31 00:01:50,040 --> 00:01:52,960 Speaker 1: should not look at these committee hearings and assume that 32 00:01:53,040 --> 00:01:56,000 Speaker 1: everything we're seeing would translate over one to one to 33 00:01:56,120 --> 00:01:59,360 Speaker 1: a criminal prosecution, because there are two very different ball games, 34 00:01:59,480 --> 00:02:01,600 Speaker 1: and some of the evidence of the committee is playing 35 00:02:01,640 --> 00:02:04,080 Speaker 1: would not be admissible in a trial, and there's no 36 00:02:04,160 --> 00:02:07,320 Speaker 1: defense lawyers, there's no cross examination at the committee. So 37 00:02:07,360 --> 00:02:10,240 Speaker 1: I think we need to keep that in mind, that 38 00:02:10,440 --> 00:02:12,600 Speaker 1: this is sort of the committee having the floor all 39 00:02:12,600 --> 00:02:14,880 Speaker 1: to itself. But a criminal trial is very different. A 40 00:02:14,919 --> 00:02:17,160 Speaker 1: prosecutor has to prove the case beyond a reasonable doubt, 41 00:02:17,200 --> 00:02:19,720 Speaker 1: and of course the accused the defendant would have a 42 00:02:19,880 --> 00:02:23,680 Speaker 1: zealous defect. So I'm reluctant to draw a straight yes, 43 00:02:23,800 --> 00:02:26,120 Speaker 1: this can be prosecuted and convicted, just based on what 44 00:02:26,200 --> 00:02:28,320 Speaker 1: the committee has done so far. What are some of 45 00:02:28,360 --> 00:02:32,120 Speaker 1: the possible crimes that could be charged? Not saying that 46 00:02:32,120 --> 00:02:33,760 Speaker 1: they will be charged, but what are some of the 47 00:02:33,760 --> 00:02:36,480 Speaker 1: possible crimes you see? Well, I see three big ones 48 00:02:36,520 --> 00:02:38,799 Speaker 1: if we're talking about with respected Donald Trump or other 49 00:02:38,840 --> 00:02:42,760 Speaker 1: powerful people. The first one is conspiracy to defraud the 50 00:02:42,840 --> 00:02:45,880 Speaker 1: United States. Though normally that means to steal money from 51 00:02:45,919 --> 00:02:48,400 Speaker 1: the United States, but legally it does not have to 52 00:02:48,440 --> 00:02:50,640 Speaker 1: be a financial loss. It can be to deprive the 53 00:02:50,720 --> 00:02:54,360 Speaker 1: United States of a fair election. In fact, Robertmuller charged 54 00:02:54,400 --> 00:02:57,679 Speaker 1: some of the Russian nationals who interfered with the elections 55 00:02:57,840 --> 00:03:00,720 Speaker 1: under that theory. The second big one I see is 56 00:03:00,919 --> 00:03:04,120 Speaker 1: an attempt to obstruct an official proceeding. Here, the official 57 00:03:04,120 --> 00:03:07,000 Speaker 1: proceeding is the counting of the electoral votes by Congress, 58 00:03:07,320 --> 00:03:09,520 Speaker 1: and the argument would be that Trump or potentially this 59 00:03:09,639 --> 00:03:12,680 Speaker 1: lawyer John Eastman, had corrupt intent. They knew what they 60 00:03:12,720 --> 00:03:15,239 Speaker 1: were doing was wrong, and they still tried to block 61 00:03:15,400 --> 00:03:18,240 Speaker 1: essentially Mike Pencil counting the votes and then the third one, 62 00:03:18,280 --> 00:03:21,400 Speaker 1: the most dramatic charge, would be seditious conspiracy, which is 63 00:03:21,480 --> 00:03:24,480 Speaker 1: essentially the same thing as trying to obstruct a proceeding, 64 00:03:24,560 --> 00:03:27,320 Speaker 1: only with an element of use of force. So you 65 00:03:27,320 --> 00:03:30,520 Speaker 1: would need to tie the person to the physical force 66 00:03:30,560 --> 00:03:32,359 Speaker 1: that we've used to break into the Capitol. I don't 67 00:03:32,360 --> 00:03:35,120 Speaker 1: see any evidence establishing that link to Donald Trump at 68 00:03:35,120 --> 00:03:37,880 Speaker 1: the moment, but d o J has charged various members 69 00:03:37,880 --> 00:03:40,280 Speaker 1: and leaders of the Oath Keepers and Proud Boys with that, 70 00:03:40,680 --> 00:03:43,760 Speaker 1: and if you can show that anybody else was involved 71 00:03:43,760 --> 00:03:46,000 Speaker 1: with that use of force, then you can charge that 72 00:03:46,160 --> 00:03:49,560 Speaker 1: crime as well. Prosecutors, of course, have to believe that 73 00:03:49,640 --> 00:03:52,360 Speaker 1: they can prove their case to a jury beyond a 74 00:03:52,440 --> 00:03:57,160 Speaker 1: reasonable doubt. What else goes into a charging decision? That's 75 00:03:57,400 --> 00:03:59,400 Speaker 1: issue number one. You have to believe that you can 76 00:03:59,440 --> 00:04:01,560 Speaker 1: prove your case of a journy beyond a reasonable doubt. 77 00:04:01,840 --> 00:04:03,720 Speaker 1: You want to look at the equities of it. You 78 00:04:03,760 --> 00:04:07,400 Speaker 1: want to look at is this a fair and righteous prosecution? 79 00:04:07,560 --> 00:04:09,320 Speaker 1: And I think the big question here is how do 80 00:04:09,360 --> 00:04:11,000 Speaker 1: you take into account the fact that this is a 81 00:04:11,040 --> 00:04:14,240 Speaker 1: former president and an indictment of him will cause all 82 00:04:14,360 --> 00:04:17,920 Speaker 1: manner of protests and perhaps worse than that we've heard 83 00:04:18,000 --> 00:04:20,680 Speaker 1: Trump sort of rally his followers. If they indict me, 84 00:04:20,800 --> 00:04:23,400 Speaker 1: we're going to have some civil unrest. Um paraphrasing what 85 00:04:23,440 --> 00:04:26,560 Speaker 1: he said, you know, d O J internal guidance and 86 00:04:26,680 --> 00:04:29,480 Speaker 1: this is public tells prosecutors you're not to consider that 87 00:04:29,560 --> 00:04:31,320 Speaker 1: kind of thing. You're not to consider whether a person 88 00:04:31,400 --> 00:04:35,040 Speaker 1: is politically popular or unpopular in whether to charge them. 89 00:04:35,040 --> 00:04:36,919 Speaker 1: But I do think as a practical matter, June, I 90 00:04:37,000 --> 00:04:40,080 Speaker 1: assure you prosecutors are cognizant of the fact that if 91 00:04:40,080 --> 00:04:42,840 Speaker 1: they do charge Donald Trump, it will be unlike any 92 00:04:42,880 --> 00:04:45,640 Speaker 1: prosecution in prior the United States history, and it will 93 00:04:45,680 --> 00:04:49,200 Speaker 1: be uniquely fraught and uniquely difficult. Yeah, because we hear 94 00:04:49,400 --> 00:04:53,520 Speaker 1: Attorney General Merrick Garland say over and over that you know, 95 00:04:53,720 --> 00:04:57,479 Speaker 1: will go wherever the evidence leads us. But if the 96 00:04:57,560 --> 00:05:01,840 Speaker 1: evidence does lead to Donald Trump, one wonders if they'll be, 97 00:05:02,160 --> 00:05:05,920 Speaker 1: you know, worry of breaking the norm against indicting former 98 00:05:06,000 --> 00:05:09,279 Speaker 1: presidents and also of the division that it will likely 99 00:05:09,360 --> 00:05:12,560 Speaker 1: cause in the country. Here's my response to what we've 100 00:05:12,560 --> 00:05:15,039 Speaker 1: seen from Marrick Arland. Two things I can say for sure. 101 00:05:15,320 --> 00:05:17,640 Speaker 1: Number One, this idea we're going to start at the 102 00:05:17,680 --> 00:05:20,240 Speaker 1: ground level and build up which he says over and over, 103 00:05:20,600 --> 00:05:23,960 Speaker 1: that's not really true. That's not really how good prosecutors 104 00:05:24,000 --> 00:05:25,880 Speaker 1: build their cases. I can't tell you how many times 105 00:05:25,920 --> 00:05:28,280 Speaker 1: I had evidence that led me write to a powerful person. 106 00:05:28,320 --> 00:05:30,360 Speaker 1: I used to do mob cases. I had evidence where 107 00:05:30,360 --> 00:05:32,000 Speaker 1: I would go, Wow, okay, great, I have a shot 108 00:05:32,040 --> 00:05:33,240 Speaker 1: at the boss here, I have a shot at a 109 00:05:33,279 --> 00:05:35,840 Speaker 1: capo here. I wouldn't stop and go okay, hold on, 110 00:05:36,080 --> 00:05:37,919 Speaker 1: let me go start with the low level guys on 111 00:05:37,960 --> 00:05:40,039 Speaker 1: the street and see if I can put them, and 112 00:05:40,040 --> 00:05:41,760 Speaker 1: see if then I can flip those guys and get 113 00:05:41,760 --> 00:05:44,000 Speaker 1: back up to the top. So that, to me is 114 00:05:44,080 --> 00:05:47,360 Speaker 1: not really an accurate view of what good prosecutors do 115 00:05:47,880 --> 00:05:49,480 Speaker 1: or ought to do. The other thing that I think 116 00:05:49,560 --> 00:05:52,080 Speaker 1: is sort of indisputable about Merrick Arland. You know, there's 117 00:05:52,080 --> 00:05:54,120 Speaker 1: a lot of will here, won't he What I think 118 00:05:54,200 --> 00:05:56,880 Speaker 1: is beyond dispute is this is taking too long. I mean, 119 00:05:56,920 --> 00:05:59,160 Speaker 1: we are a year and a half out from January 120 00:05:59,200 --> 00:06:01,520 Speaker 1: six at this point. Arland came in March, so he's 121 00:06:01,520 --> 00:06:04,200 Speaker 1: been there sixteen months at this point. But if this 122 00:06:04,279 --> 00:06:06,719 Speaker 1: is a crime by Donald Trump and others, it is 123 00:06:06,760 --> 00:06:10,400 Speaker 1: the greatest crime ever committed against our democracy and to 124 00:06:10,480 --> 00:06:13,680 Speaker 1: take this long and counting to charge it, I think 125 00:06:13,760 --> 00:06:16,760 Speaker 1: is not at all commensurate with the seriousness of the 126 00:06:16,800 --> 00:06:19,920 Speaker 1: crime that we're talking about, or of the ongoing threat. 127 00:06:20,040 --> 00:06:22,920 Speaker 1: And the thing is, if Garland doesn't charge this by 128 00:06:22,920 --> 00:06:25,440 Speaker 1: the end of the summer, d o J policy says 129 00:06:25,440 --> 00:06:27,880 Speaker 1: you don't charge a big political case within sixty days 130 00:06:27,960 --> 00:06:29,800 Speaker 1: or ninety days. People sort of vary on what the 131 00:06:29,880 --> 00:06:32,840 Speaker 1: number is before an election. So if we don't see 132 00:06:32,880 --> 00:06:36,200 Speaker 1: Merrick Garland charging Donald Trump or anyone around him by August, 133 00:06:36,400 --> 00:06:38,839 Speaker 1: and I don't think anyone realistically thinks that's going to happen. 134 00:06:39,040 --> 00:06:43,279 Speaker 1: Now we're talking end of early three. We're talking two 135 00:06:43,320 --> 00:06:46,120 Speaker 1: full years out, by which time Donald Trump they well 136 00:06:46,120 --> 00:06:49,320 Speaker 1: have declared his candidacy for four and if he does that, 137 00:06:49,400 --> 00:06:52,839 Speaker 1: he will be called immediately the prohibitive Republican front runner, 138 00:06:52,839 --> 00:06:54,760 Speaker 1: which I think makes it even more difficult as a 139 00:06:54,760 --> 00:06:58,080 Speaker 1: practical measure to charge it. Thanks Ellie. That's from our 140 00:06:58,120 --> 00:07:03,800 Speaker 1: federal prosecutor, Ellie Honing. The January six Committee explored former 141 00:07:03,880 --> 00:07:08,280 Speaker 1: Vice President Mike Pence's decision not to violate the Constitution 142 00:07:08,400 --> 00:07:12,520 Speaker 1: by ignoring the votes of states offering fake or alternate 143 00:07:12,560 --> 00:07:17,560 Speaker 1: boards of electors. Pence's former general counsel, Greg Jacob, testified 144 00:07:17,600 --> 00:07:20,600 Speaker 1: that the Vice president was clear from the outset that 145 00:07:20,680 --> 00:07:24,880 Speaker 1: obeying Trump's wishes would have been unconstitutional the vice president's 146 00:07:24,920 --> 00:07:29,440 Speaker 1: first instinct on that point, there is no uh justifiable 147 00:07:29,440 --> 00:07:32,480 Speaker 1: basis to conclude that the vice president has that kind 148 00:07:32,520 --> 00:07:36,160 Speaker 1: of authority. Joining me is Bloomberg Law team leader Christopher 149 00:07:36,200 --> 00:07:40,600 Speaker 1: opfor Chris tell us about what happened to Greg Jacob 150 00:07:40,760 --> 00:07:44,960 Speaker 1: on January six. Sure, so, at the time, Jacob was 151 00:07:45,000 --> 00:07:47,559 Speaker 1: serving as chief council to Mike Pence, and of course 152 00:07:47,920 --> 00:07:51,480 Speaker 1: Pence and his top staffers were there at the Capitol 153 00:07:52,000 --> 00:07:55,800 Speaker 1: preparing to go through the imaginations of certifying the vote. 154 00:07:56,480 --> 00:08:00,440 Speaker 1: And at this point, certainly Pence and his staff, including Jacob, 155 00:08:00,480 --> 00:08:05,760 Speaker 1: were aware of the crowd gathering outside and were aware 156 00:08:06,400 --> 00:08:09,960 Speaker 1: of the back and forth, particularly from various Trump supporters 157 00:08:10,000 --> 00:08:13,960 Speaker 1: are urging Pence to do something to overturn the election results. 158 00:08:14,120 --> 00:08:18,440 Speaker 1: But it wasn't until Jacob went downstairs into the battles 159 00:08:18,480 --> 00:08:20,280 Speaker 1: of the Capitol with a couple of the staffiss to 160 00:08:20,320 --> 00:08:23,520 Speaker 1: actually get a cup of coffee that he heard, you know, 161 00:08:23,600 --> 00:08:29,280 Speaker 1: the mob outside storming the Capitol. He literally heard glass 162 00:08:29,320 --> 00:08:32,720 Speaker 1: breaking and people filing in, and that's when he and 163 00:08:32,760 --> 00:08:35,760 Speaker 1: the others hustled back upstairs. They were ushered by Capitol 164 00:08:35,760 --> 00:08:38,320 Speaker 1: police and secret Service to the Senate floor at first, 165 00:08:38,360 --> 00:08:41,520 Speaker 1: and then they were taken to a secure location with Pence, 166 00:08:41,720 --> 00:08:46,080 Speaker 1: his wife, pence brother who's a Republican congressman, and others, 167 00:08:46,160 --> 00:08:49,280 Speaker 1: and they really hunkered down there for the next six 168 00:08:49,320 --> 00:08:53,160 Speaker 1: hours or so as the mob wineled in. So as 169 00:08:53,240 --> 00:08:56,479 Speaker 1: he was being shuffled from the Senate floor to the 170 00:08:56,880 --> 00:09:01,080 Speaker 1: secure location, Jacob fired off an email Eastman. And the 171 00:09:01,120 --> 00:09:04,160 Speaker 1: backstory there is that over the last two days leading 172 00:09:04,240 --> 00:09:07,360 Speaker 1: up to the Capitol, right on January six, he and 173 00:09:07,480 --> 00:09:11,120 Speaker 1: Eastman had been having this ongoing back and forth debating 174 00:09:11,120 --> 00:09:14,600 Speaker 1: the merits of Eastman's argument, in which Eastman was trying 175 00:09:14,640 --> 00:09:18,880 Speaker 1: to convince Pence to step in and overturn the election. 176 00:09:19,160 --> 00:09:23,560 Speaker 1: Those arguments had been rejected roundly. And once the mob 177 00:09:23,600 --> 00:09:26,800 Speaker 1: had had forced its way into the Capitol and Jacob 178 00:09:26,920 --> 00:09:30,880 Speaker 1: is being shuffled off first, he's fielding frantic text messages 179 00:09:30,960 --> 00:09:33,880 Speaker 1: from family members and his pastor about are you all right? 180 00:09:33,920 --> 00:09:36,640 Speaker 1: Are you say? He takes this moment to fire off 181 00:09:36,640 --> 00:09:40,720 Speaker 1: an email the Eastman which says something to the effect 182 00:09:40,720 --> 00:09:43,480 Speaker 1: that we are now under siege and this is all 183 00:09:43,520 --> 00:09:48,439 Speaker 1: thanks to your BIA. So how did he become Pence's 184 00:09:48,640 --> 00:09:54,160 Speaker 1: top lawyer? Since his background is employment benefits law. It's 185 00:09:54,200 --> 00:09:58,400 Speaker 1: a really unlikely story. It's not something that Jacob had 186 00:09:58,440 --> 00:10:02,520 Speaker 1: in mind for sure. Uh, certainly not when Trump and 187 00:10:02,600 --> 00:10:06,280 Speaker 1: Pence were elected, and not even you know, probably midway 188 00:10:06,320 --> 00:10:09,680 Speaker 1: into the four years of the Trump administration. He is 189 00:10:09,800 --> 00:10:13,880 Speaker 1: an employment lawyer by trade. He is an expert in RISSA, 190 00:10:13,960 --> 00:10:17,599 Speaker 1: which is this very wonky but also complicated and and 191 00:10:17,840 --> 00:10:24,239 Speaker 1: incredibly important federal law that governs employee pensioned plans, retirement benefits, etcetera. 192 00:10:24,559 --> 00:10:28,040 Speaker 1: He's been in and out of government in Republican administration. 193 00:10:28,679 --> 00:10:31,880 Speaker 1: He's had some top roles at the Labor Department. Earlier 194 00:10:31,880 --> 00:10:34,440 Speaker 1: in his career he had worked at the d J 195 00:10:34,840 --> 00:10:37,720 Speaker 1: in the Office of Legal Counsel, so he did have 196 00:10:37,840 --> 00:10:41,480 Speaker 1: some experience and expertise outside of the labor and employment world, 197 00:10:41,760 --> 00:10:44,760 Speaker 1: but that was certainly his bread and butter. And in fact, Jacob, 198 00:10:45,040 --> 00:10:47,560 Speaker 1: you know, once Trump was elected, had his eyes on 199 00:10:47,880 --> 00:10:50,559 Speaker 1: a return to the Labor Department and was really focused 200 00:10:50,600 --> 00:10:53,360 Speaker 1: there and for a number of reasons that fell through. 201 00:10:54,080 --> 00:10:57,480 Speaker 1: He had made some connections with the Pence folks, because 202 00:10:57,679 --> 00:11:00,520 Speaker 1: Jacob had been recruited by a b called the House, 203 00:11:00,559 --> 00:11:03,280 Speaker 1: who's a long time GOP lawyer to work on this 204 00:11:03,320 --> 00:11:07,240 Speaker 1: team that was actually vetting VP candidates for Trump, And 205 00:11:07,320 --> 00:11:09,199 Speaker 1: so that's how he had come into Pence his orbits 206 00:11:09,200 --> 00:11:12,440 Speaker 1: in the first place. Pence's long time chief council, a 207 00:11:12,440 --> 00:11:15,120 Speaker 1: guy named Matt Morgan, had decided he needed to go 208 00:11:15,160 --> 00:11:19,280 Speaker 1: back to Indiana for family reasons, and when they went 209 00:11:19,360 --> 00:11:22,000 Speaker 1: looking for somebody, it was suggested that they take a 210 00:11:22,040 --> 00:11:24,600 Speaker 1: look at Jacob. I mean so that although there was 211 00:11:24,679 --> 00:11:27,320 Speaker 1: some familiarity of this was not a guy who was 212 00:11:27,400 --> 00:11:30,559 Speaker 1: like a long time Pence guy, Pence supporter or anything 213 00:11:30,640 --> 00:11:32,880 Speaker 1: like that. But on the other hand, they really did 214 00:11:33,000 --> 00:11:36,280 Speaker 1: jibe pretty well. It sounds like, from from everyone involved, 215 00:11:36,520 --> 00:11:40,160 Speaker 1: sort of a similar worldview, very conservative, also a very 216 00:11:40,880 --> 00:11:44,480 Speaker 1: devout Christian, which of course Mike Pence in his family 217 00:11:44,480 --> 00:11:48,840 Speaker 1: are as well. Now what is his connection to eat. 218 00:11:49,679 --> 00:11:52,000 Speaker 1: It's interesting these are two guys that are sort of 219 00:11:52,040 --> 00:11:54,199 Speaker 1: cut from the same cloth in many ways. They went 220 00:11:54,240 --> 00:11:57,360 Speaker 1: to the same law school at different times. They've been 221 00:11:57,679 --> 00:12:02,880 Speaker 1: running in GOP lawyer circles for decades, but they had 222 00:12:02,920 --> 00:12:06,120 Speaker 1: never actually met until two days before the riot, and 223 00:12:06,160 --> 00:12:09,040 Speaker 1: that was when Eastman came in. He had been hired 224 00:12:09,040 --> 00:12:11,440 Speaker 1: by Trump to come in and work on some of 225 00:12:11,480 --> 00:12:15,320 Speaker 1: the election issues, and it was on January fourth that 226 00:12:15,440 --> 00:12:18,600 Speaker 1: he started reaching out to the Pence folks, including Greg Jacob, 227 00:12:18,720 --> 00:12:22,559 Speaker 1: pitching this argument, which was basically that Pence could de 228 00:12:22,720 --> 00:12:26,760 Speaker 1: certify the vote or send the vote back to certain 229 00:12:26,800 --> 00:12:30,520 Speaker 1: states and UH six states, states including places like Michigan 230 00:12:30,559 --> 00:12:34,680 Speaker 1: and Arizona where Trump supporters had been arguing that there was, 231 00:12:35,120 --> 00:12:38,040 Speaker 1: you know, reason to take another look at those states 232 00:12:38,040 --> 00:12:41,120 Speaker 1: on the one hand, or that he could simply effectively 233 00:12:41,200 --> 00:12:44,240 Speaker 1: wave a magic wand and say that Trump is going 234 00:12:44,320 --> 00:12:46,960 Speaker 1: to remain president. And he laid this out in detail 235 00:12:47,080 --> 00:12:50,079 Speaker 1: in a memo that has become public as part of 236 00:12:50,120 --> 00:12:53,400 Speaker 1: the hearing proceedings. He also laid it out in a 237 00:12:53,480 --> 00:12:56,520 Speaker 1: series of emails that have become public since then, and 238 00:12:56,720 --> 00:13:00,600 Speaker 1: now this chain of emails on January six between Jacob 239 00:13:00,600 --> 00:13:04,600 Speaker 1: and Eastman have also become public. You're right that friends 240 00:13:04,640 --> 00:13:09,520 Speaker 1: and colleagues call him humble, careful under the radar, not exactly, 241 00:13:09,880 --> 00:13:13,080 Speaker 1: Mr Social. This is a guy, by all accounts, who 242 00:13:13,160 --> 00:13:16,840 Speaker 1: has not thought the spotlight and somebody who is just 243 00:13:17,320 --> 00:13:21,360 Speaker 1: super smart, super well respected in d C. And could 244 00:13:21,400 --> 00:13:24,720 Speaker 1: have gone for a more public facing position had he 245 00:13:24,840 --> 00:13:28,040 Speaker 1: thought that. And it's just not something that he personally 246 00:13:28,080 --> 00:13:30,920 Speaker 1: has gone after. And I get the sense that, you know, 247 00:13:30,960 --> 00:13:33,200 Speaker 1: if you left it up to Greg Jacob, he would 248 00:13:33,320 --> 00:13:37,360 Speaker 1: rather not be going before the House Committee in a 249 00:13:37,400 --> 00:13:41,520 Speaker 1: televised event before the world. He's a low key guy, 250 00:13:41,880 --> 00:13:44,600 Speaker 1: you know. I think from his position, he's already sat 251 00:13:44,760 --> 00:13:47,679 Speaker 1: for closed door testimony with the committee there. But on 252 00:13:47,720 --> 00:13:50,400 Speaker 1: the other hand, here's someone who people close to him 253 00:13:50,640 --> 00:13:54,200 Speaker 1: they believed in the rule of law. And certainly, by 254 00:13:54,200 --> 00:13:57,760 Speaker 1: the time the mob was storming the Capitol, it became 255 00:13:57,800 --> 00:14:02,440 Speaker 1: clear to Jacob that this of Trump's own doing and 256 00:14:02,520 --> 00:14:06,520 Speaker 1: of trump supporters own doing, and and that Eastman in particular, 257 00:14:06,640 --> 00:14:09,640 Speaker 1: according to Jacob, should shoulder some of the blame for 258 00:14:09,920 --> 00:14:12,800 Speaker 1: spewing this narrative that somehow Trump was going to be 259 00:14:12,800 --> 00:14:15,560 Speaker 1: able to remain in office. And I think for him 260 00:14:15,600 --> 00:14:19,160 Speaker 1: it's more of a rule of law patriotism type of 261 00:14:19,160 --> 00:14:21,600 Speaker 1: thing here where he feels like, you know, this is 262 00:14:21,640 --> 00:14:23,640 Speaker 1: something where he has to step up and you know, 263 00:14:23,680 --> 00:14:27,680 Speaker 1: explain what happened. Thanks Chris, that's Christopher up for a 264 00:14:27,800 --> 00:14:33,040 Speaker 1: Bloomberg law. The Supreme Court sided with the Southwest Airlines 265 00:14:33,120 --> 00:14:36,640 Speaker 1: baggage handling supervisor, who was trying to avoid having to 266 00:14:36,640 --> 00:14:39,920 Speaker 1: go to arbitration with her claims for overtime pay. In 267 00:14:39,960 --> 00:14:43,640 Speaker 1: a unanimous opinion, the Justice has said the supervisor isn't 268 00:14:43,680 --> 00:14:47,600 Speaker 1: covered by the Federal Arbitration Act, which requires the enforcement 269 00:14:47,600 --> 00:14:51,480 Speaker 1: of agreements to take claims to arbitration rather than to trial. 270 00:14:52,080 --> 00:14:55,800 Speaker 1: In the majority opinion, Justice Clarence Thomas said the supervisor 271 00:14:56,000 --> 00:14:59,640 Speaker 1: qualified for an exception in the law for workers engaged 272 00:14:59,680 --> 00:15:03,560 Speaker 1: in foreign or interstate commerce. Joining me is Mark Rifkin, 273 00:15:03,720 --> 00:15:07,240 Speaker 1: a partner Wolf Haldenstein. This is the second time in 274 00:15:07,360 --> 00:15:10,760 Speaker 1: two weeks that the Court has shot down a company's 275 00:15:10,800 --> 00:15:15,600 Speaker 1: attempt to force an employee into arbitration rather than going 276 00:15:15,640 --> 00:15:21,000 Speaker 1: to trial and a unanimous decision. Is that surprising to you, No, 277 00:15:21,240 --> 00:15:24,360 Speaker 1: I don't think so. I think that the first decision 278 00:15:24,600 --> 00:15:28,560 Speaker 1: in the case involving the worker who was trying to 279 00:15:28,760 --> 00:15:33,440 Speaker 1: invoke waiver as a defense to arbitration, was a straightforward 280 00:15:33,440 --> 00:15:36,800 Speaker 1: application of the principle that arbitration should be put on 281 00:15:36,840 --> 00:15:40,520 Speaker 1: the same footing as every other contract. And then the 282 00:15:40,560 --> 00:15:43,800 Speaker 1: Southwest Airlines case, the second case is again just a 283 00:15:43,880 --> 00:15:48,840 Speaker 1: straightforward application of simple definitions and principles that you can 284 00:15:48,880 --> 00:15:51,520 Speaker 1: find in Black Law Dictionary. And so I think in 285 00:15:51,560 --> 00:15:56,000 Speaker 1: the in that vein, they're both simple, straightforward applications of 286 00:15:56,560 --> 00:16:01,880 Speaker 1: basic fundamental principles to arbitration agreements. So tell us about 287 00:16:01,920 --> 00:16:05,200 Speaker 1: the facts here. So, the plaintiff in the Southwest Airlines 288 00:16:05,280 --> 00:16:10,400 Speaker 1: case was ramp supervisor and part of her job included 289 00:16:10,520 --> 00:16:15,640 Speaker 1: helping the ramp workers load baggage and airmail and cargo 290 00:16:15,880 --> 00:16:19,240 Speaker 1: on and off airplanes that obviously travel across the country 291 00:16:19,280 --> 00:16:23,160 Speaker 1: and presumably internationally as well. And the question is whether 292 00:16:23,200 --> 00:16:27,200 Speaker 1: those workers who are involved in that kind of work 293 00:16:27,640 --> 00:16:30,880 Speaker 1: belonged to a class of workers engaged in foreign or 294 00:16:30,920 --> 00:16:36,320 Speaker 1: interstate commerce. Because the Federal Arbitration Act exempts those workers 295 00:16:36,880 --> 00:16:40,520 Speaker 1: from the protection of the f a A, they can't 296 00:16:40,560 --> 00:16:43,800 Speaker 1: be compelled to arbitrate, And so the question is do 297 00:16:43,920 --> 00:16:48,360 Speaker 1: those baggage handlers fall within that class of workers. It 298 00:16:48,440 --> 00:16:51,440 Speaker 1: seems obvious what her argument would be. What was the 299 00:16:51,560 --> 00:16:55,520 Speaker 1: argument of Southwest as to why she shouldn't fall under 300 00:16:55,560 --> 00:17:01,760 Speaker 1: this exemption. So Southwest Airlines said that the airline is 301 00:17:01,800 --> 00:17:05,920 Speaker 1: engaged in interstate commerce, but the workers at the airport 302 00:17:06,119 --> 00:17:12,280 Speaker 1: who don't themselves travel across state lines or across international lines. 303 00:17:12,840 --> 00:17:17,359 Speaker 1: That the workers are not engaged in interstate commerce, even 304 00:17:17,359 --> 00:17:19,760 Speaker 1: though they work for a company that is. And and 305 00:17:19,800 --> 00:17:24,720 Speaker 1: the question that the Supreme Court addressed is whether those 306 00:17:24,760 --> 00:17:30,840 Speaker 1: workers who are part of that effort of commerce are 307 00:17:30,880 --> 00:17:35,920 Speaker 1: themselves engaged in foreign or interstate commerce even though they 308 00:17:35,960 --> 00:17:40,320 Speaker 1: work within one state rather than traveling interstate or internationally. 309 00:17:41,240 --> 00:17:47,120 Speaker 1: Justice Clarence Thomas wrote the majority opinion, explain his reasoning, Well, 310 00:17:47,160 --> 00:17:50,920 Speaker 1: it's a unanimous decision, so so all the judges who 311 00:17:50,960 --> 00:17:56,720 Speaker 1: participated in the decision agreed, and Justice Barrett did not participate, 312 00:17:56,840 --> 00:18:01,399 Speaker 1: but everybody who participated agreed. And Justice Thomas, writing for 313 00:18:01,560 --> 00:18:05,639 Speaker 1: the court, said that, um, if we look at how 314 00:18:06,000 --> 00:18:11,960 Speaker 1: black slaw a dictionary defines the words engaged and commerce, 315 00:18:12,480 --> 00:18:18,080 Speaker 1: then we conclude that anyone is engaged in commerce who 316 00:18:18,200 --> 00:18:21,600 Speaker 1: is occupied in it, employed in it, or involved in it. 317 00:18:22,160 --> 00:18:25,320 Speaker 1: And the Court took a very broad approach to applying 318 00:18:25,800 --> 00:18:31,359 Speaker 1: that definition. And since the ramp supervisors who actually handle 319 00:18:31,640 --> 00:18:37,840 Speaker 1: the cargo are certainly involved in interstate commerce, the Court said, well, 320 00:18:37,880 --> 00:18:41,080 Speaker 1: they fall within that class of workers who are exempt 321 00:18:41,200 --> 00:18:45,160 Speaker 1: under Section one of the Federal arbitration. I love when 322 00:18:45,160 --> 00:18:49,960 Speaker 1: they go to the dictionary to decide a case of 323 00:18:50,119 --> 00:18:53,560 Speaker 1: national importance. Well, you would think if a case was 324 00:18:53,880 --> 00:18:57,560 Speaker 1: complicated enough and important enough to be adjudicated by the 325 00:18:57,600 --> 00:19:02,520 Speaker 1: Supreme Court, it should require some more sophisticated analysis than 326 00:19:02,720 --> 00:19:06,960 Speaker 1: looking in the dictionary. But here the dictionary help. And 327 00:19:07,280 --> 00:19:10,119 Speaker 1: so Justice Thomas looked in the dictionary and saw the 328 00:19:10,480 --> 00:19:15,119 Speaker 1: how those terms were interpreted, and uh said, works for 329 00:19:15,240 --> 00:19:20,600 Speaker 1: US Uber Lift and Amazon all file briefs backing Southwest. 330 00:19:21,160 --> 00:19:24,720 Speaker 1: What are the implications for those workers? Well, I think 331 00:19:24,720 --> 00:19:28,040 Speaker 1: the principle is fairly well established. Now, if you work 332 00:19:28,280 --> 00:19:33,120 Speaker 1: in an industry that participates in either interstate or international commerce, 333 00:19:33,320 --> 00:19:37,119 Speaker 1: and so for example, Amazon plainly participates in interstate and 334 00:19:37,359 --> 00:19:41,400 Speaker 1: international commerce, if you work for a company that does that, 335 00:19:41,680 --> 00:19:46,560 Speaker 1: and your job is closely enough tied to that commerce, 336 00:19:47,000 --> 00:19:51,320 Speaker 1: then the same rationale would apply to that worker as 337 00:19:51,480 --> 00:19:54,600 Speaker 1: as applied to Saxon in the Southwest Airlines case. Now, 338 00:19:54,720 --> 00:19:58,920 Speaker 1: not everybody who works for Southwest Airlines would fall within 339 00:19:59,280 --> 00:20:03,680 Speaker 1: the courts rational So I could imagine an accountant who 340 00:20:03,800 --> 00:20:06,960 Speaker 1: works for Southwest Airlines. I could imagine that a court 341 00:20:07,000 --> 00:20:10,720 Speaker 1: would say, well, that person is not engaged in interstate 342 00:20:10,880 --> 00:20:15,080 Speaker 1: or international commerce. But you know, obviously, if a baggage 343 00:20:15,080 --> 00:20:19,720 Speaker 1: handler is engaged in interstate or international commerce, a flight 344 00:20:19,760 --> 00:20:24,160 Speaker 1: attendant is engaged in interstate or international commerce, and presumably 345 00:20:24,200 --> 00:20:28,359 Speaker 1: others as well, even though their jobs don't cross state 346 00:20:28,440 --> 00:20:33,400 Speaker 1: lines or international lines, still could be engaged in interstate 347 00:20:33,400 --> 00:20:37,280 Speaker 1: commerce within the meaning of Supreme Court's decision here, I 348 00:20:37,280 --> 00:20:39,639 Speaker 1: want you to tell me what you think Southwest is 349 00:20:39,680 --> 00:20:44,240 Speaker 1: saying here. They said, because non union employees rarely handle 350 00:20:44,400 --> 00:20:48,280 Speaker 1: cargo on a regular basis, Southwest will continue to rely 351 00:20:48,359 --> 00:20:52,159 Speaker 1: on the Federal Arbitration Act to enforce its arbitration program 352 00:20:52,240 --> 00:20:54,240 Speaker 1: in the future. Are they saying they're not going to 353 00:20:54,240 --> 00:20:57,000 Speaker 1: pay attention to the Supreme Court? Well, I think they're 354 00:20:57,040 --> 00:20:59,720 Speaker 1: trying to look for a move all around through this 355 00:21:00,040 --> 00:21:04,360 Speaker 1: free Courts decisions. They conceded in the case that at 356 00:21:04,440 --> 00:21:09,080 Speaker 1: least Saxon, this ramp supervisor, that a significant part of 357 00:21:09,119 --> 00:21:13,240 Speaker 1: her job was to transport cargo, that she helped the 358 00:21:13,359 --> 00:21:18,359 Speaker 1: ramp workers by frequently loading and unloading cargo. So because 359 00:21:18,440 --> 00:21:22,480 Speaker 1: Southwest conceded the issue there, they're now looking for a 360 00:21:22,520 --> 00:21:27,440 Speaker 1: way to distinguish some other kinds of workers from Saxon 361 00:21:27,720 --> 00:21:30,320 Speaker 1: and I guess the way they're trying to do that 362 00:21:30,520 --> 00:21:36,080 Speaker 1: is the extent to which any particular worker actually handles 363 00:21:36,800 --> 00:21:39,640 Speaker 1: baggage or cargo or whatever it may be that gets 364 00:21:39,680 --> 00:21:43,840 Speaker 1: loaded and unloaded from from airplanes. Um. You know, these 365 00:21:43,880 --> 00:21:46,919 Speaker 1: are the kinds of grain lines that courts often have 366 00:21:47,119 --> 00:21:51,040 Speaker 1: to draw. And I guess in the next case brought 367 00:21:51,080 --> 00:21:54,240 Speaker 1: by a Southwest Airlines employee who doesn't handle as much 368 00:21:54,240 --> 00:21:57,560 Speaker 1: baggage as Saxon did, maybe the court would find that 369 00:21:57,560 --> 00:22:01,960 Speaker 1: that person falls outside the exemption. But that's another case 370 00:22:02,000 --> 00:22:05,159 Speaker 1: for another day. We've talked about the Supreme Court and 371 00:22:05,240 --> 00:22:09,840 Speaker 1: arbitration before. Before these two cases, has the Supreme Court 372 00:22:09,840 --> 00:22:15,640 Speaker 1: been interpreting arbitration in ways that are favorable to businesses 373 00:22:15,880 --> 00:22:19,199 Speaker 1: for the most part, well, I think the Supreme Court's 374 00:22:19,520 --> 00:22:23,120 Speaker 1: approach to arbitration has been favorable to business. The f 375 00:22:23,119 --> 00:22:27,879 Speaker 1: a A says you can't disfavor arbitration, and that was 376 00:22:28,200 --> 00:22:32,399 Speaker 1: the rationale for the Morgan Versus Sundance opinion that Justice 377 00:22:32,440 --> 00:22:35,879 Speaker 1: Kagan wrote is that arbitration agreements have to be on 378 00:22:36,119 --> 00:22:39,800 Speaker 1: exactly the same footing as all other contracts, and so 379 00:22:40,160 --> 00:22:44,000 Speaker 1: in that case in Morgan Versus Sundance, the Supreme Court said, 380 00:22:44,200 --> 00:22:50,439 Speaker 1: you can't favor arbitration by creating an artificial barrier to 381 00:22:50,560 --> 00:22:53,560 Speaker 1: a waiver defense that doesn't exist to the defense of 382 00:22:53,600 --> 00:22:58,199 Speaker 1: any other contractual right. And so when the Sixth Circuit 383 00:22:58,320 --> 00:23:04,600 Speaker 1: imposed this additional requirement of prejudice to the defendant who 384 00:23:04,720 --> 00:23:10,520 Speaker 1: was trying to enforce arbitration after litigating a case or 385 00:23:10,720 --> 00:23:14,080 Speaker 1: some prolonged period of time, the Supreme Court said, you've 386 00:23:14,160 --> 00:23:19,040 Speaker 1: weighed that right, whether you're prejudiced by by the inability 387 00:23:19,080 --> 00:23:24,440 Speaker 1: to arbitrate or not. And so the Court now says, 388 00:23:24,480 --> 00:23:27,760 Speaker 1: you know, equal footing means equal footing both ways. But 389 00:23:28,160 --> 00:23:33,480 Speaker 1: the reason that the approach to arbitration favors business is 390 00:23:33,520 --> 00:23:36,840 Speaker 1: because it's an expansion of what the f a A 391 00:23:37,160 --> 00:23:42,600 Speaker 1: really was created to do. You know, decades ago, federal 392 00:23:42,640 --> 00:23:49,080 Speaker 1: courts were very unwilling to enforce arbitration agreements between sophisticated 393 00:23:49,080 --> 00:23:53,359 Speaker 1: commercial parties, which is primarily where arbitration agreements were found. 394 00:23:53,800 --> 00:23:57,120 Speaker 1: And when two big companies decide they want to arbitrate 395 00:23:57,320 --> 00:24:02,120 Speaker 1: their disputes, they're able to make a decision and negotiate 396 00:24:02,280 --> 00:24:05,119 Speaker 1: over whether to include a provision like that or not 397 00:24:05,240 --> 00:24:07,760 Speaker 1: include a provision like that. In a contract, and so 398 00:24:07,960 --> 00:24:11,719 Speaker 1: it really does make sense to say that arbitration is 399 00:24:12,359 --> 00:24:15,560 Speaker 1: a matter of mutual consent between the parties, and we're 400 00:24:15,560 --> 00:24:19,560 Speaker 1: going to treat that the decision to arbitrate and agreement 401 00:24:19,560 --> 00:24:23,840 Speaker 1: to arbitrate like any other agreement that we routinely have 402 00:24:23,920 --> 00:24:29,040 Speaker 1: to enforce. But today businesses imposed these arbitration agreements on 403 00:24:29,240 --> 00:24:32,200 Speaker 1: consumers who don't really have a choice and don't really 404 00:24:32,240 --> 00:24:37,080 Speaker 1: have the opportunity to negotiate, and can't say to a 405 00:24:37,160 --> 00:24:39,680 Speaker 1: company that they want to buy a product from, I'd 406 00:24:39,680 --> 00:24:42,160 Speaker 1: like your product, but I don't want to agree to arbitrate. 407 00:24:42,760 --> 00:24:45,560 Speaker 1: It's to take it or leave it kind of of 408 00:24:45,640 --> 00:24:50,880 Speaker 1: a contract. And it's hard to imagine that there's really 409 00:24:50,920 --> 00:24:56,159 Speaker 1: any voluntary consent to an arbitration clause that's inserted in, 410 00:24:56,680 --> 00:24:59,800 Speaker 1: you know, in a click through page on a website 411 00:24:59,800 --> 00:25:03,480 Speaker 1: where you order goods or services online, for example. But 412 00:25:03,600 --> 00:25:07,560 Speaker 1: the Supreme Court has expressed the view that if there's 413 00:25:07,560 --> 00:25:12,480 Speaker 1: an arbitration agreement anywhere around, whether you can be said 414 00:25:12,520 --> 00:25:15,040 Speaker 1: to consent to it in any meaningful sense or not, 415 00:25:15,680 --> 00:25:18,280 Speaker 1: you're bound by it. And that's why I think the 416 00:25:18,320 --> 00:25:22,600 Speaker 1: way the Court has approached arbitration agreements is very business 417 00:25:22,600 --> 00:25:26,360 Speaker 1: friendly because in the consumer context there really is not 418 00:25:26,560 --> 00:25:29,800 Speaker 1: any meaningful choice. I know I've asked you this many 419 00:25:29,840 --> 00:25:35,080 Speaker 1: many times before, but just explain how arbitration favors the 420 00:25:35,200 --> 00:25:39,720 Speaker 1: large companies. So there's there's two or three principle advantages 421 00:25:39,840 --> 00:25:42,960 Speaker 1: to a big company. One is that you don't have 422 00:25:43,280 --> 00:25:48,240 Speaker 1: the ability to conduct broad discovery, so that prevents a plaintiff, 423 00:25:48,280 --> 00:25:51,359 Speaker 1: any plaintiff, from from finding out enough information to be 424 00:25:51,400 --> 00:25:55,160 Speaker 1: able to bring a claim successfully. Number Two, you'll lose 425 00:25:55,160 --> 00:25:57,600 Speaker 1: the right to a trial by jury, and that's a 426 00:25:57,720 --> 00:26:01,919 Speaker 1: really important right, particularly for a consumer, because stories are 427 00:26:01,960 --> 00:26:05,640 Speaker 1: there to try to even out and any prejudice that's 428 00:26:05,640 --> 00:26:08,120 Speaker 1: built into the system to favor the big guy over 429 00:26:08,160 --> 00:26:10,760 Speaker 1: the little guy. And then the third big advantage is 430 00:26:11,000 --> 00:26:16,480 Speaker 1: it is virtually impossible to appeal an arbitration award against 431 00:26:16,520 --> 00:26:19,960 Speaker 1: you because the standard for appealing an arbitration award is 432 00:26:20,000 --> 00:26:23,600 Speaker 1: so incredibly high it's almost impossible to meet. It can 433 00:26:23,600 --> 00:26:27,200 Speaker 1: almost never be met. And lots of times arbitrators are 434 00:26:27,400 --> 00:26:31,280 Speaker 1: part of the industry in which the big company works. 435 00:26:31,359 --> 00:26:34,880 Speaker 1: Not always, but lots of time. Thanks Mark. That's Mark 436 00:26:34,960 --> 00:26:37,760 Speaker 1: Rifkin of Wolf hollen Stein. And that's it for this 437 00:26:37,880 --> 00:26:40,600 Speaker 1: edition of The Bloomberg Law Show. Remember you can always 438 00:26:40,640 --> 00:26:43,560 Speaker 1: get the latest legal news on our Bloomberg Law Podcast. 439 00:26:43,840 --> 00:26:46,880 Speaker 1: You can find them on Apple Podcasts, Spotify, and at 440 00:26:47,040 --> 00:26:52,080 Speaker 1: www dot bloomberg dot com, slash podcast slash Law, And 441 00:26:52,119 --> 00:26:54,600 Speaker 1: remember to tune in to The Bloomberg Law Show every 442 00:26:54,640 --> 00:26:57,720 Speaker 1: week night at ten b m. Wall Street Time. I'm 443 00:26:57,800 --> 00:27:00,280 Speaker 1: June Grosso and you're listening to bloom Burn