Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio.
Speaker 1: Oregon is now locked in a battle with the federal government,
Speaker 1: suing the Department of Homeland Security and the US Marshall Service,
Speaker 1: alleging they've overstepped their powers and threatening injuring or arresting
Speaker 1: protesters with militarized units on the streets of Portland. Mayor
Speaker 1: Ted Wheeler said the actions of the federal troops are
Speaker 1: unconstitutional and he wants them to leave unmarked vehicles driving
Speaker 1: in the crowds, pulling people off the streets without any
Speaker 1: probable cause as far as I can tell, and the
Speaker 1: people who are engaging in those activities aren't even willing
Speaker 1: to identify who they are, and they don't wear insignia
Speaker 1: on their uniforms. That's a real threat to democracy because
Speaker 1: ultimately there's no accountability for that. But Acting Deputy Secretary
Speaker 1: for the Department of Homeland Security Ken Cucinelli defended the
Speaker 1: actions of federal troops and explained a video circulating of
Speaker 1: a men being apprehended by federal troops and put into
Speaker 1: an unmarked vehicle, Well, they determined that was not the
Speaker 1: person who did the assault and released him, joining me
Speaker 1: as former federal prosecutor Eli Hoenig of Lowenstein Sandler. Do
Speaker 1: you remember another time in our history where there were
Speaker 1: cases of unidentified federal officers in camouflage throwing people into
Speaker 1: unmarked vans, taking them into custody, putting them in a
Speaker 1: jail cell, questioning them, and then releasing them without any
Speaker 1: record of their arrest. Absolutely not. And there's so much
Speaker 1: about this that sticks out as being not just unusual,
Speaker 1: but extraordinary and potentially extraordinarily dangerous. So let's start with this.
Speaker 1: First of all, we don't have secret police here in
Speaker 1: the United States. I think that's one of the core
Speaker 1: theories that are democracy or a criminal justice system is
Speaker 1: built on um. I think what this really is a
Speaker 1: sort of performative law and order for some reason. There's
Speaker 1: obviously a political mode of behind this whole song and dance,
Speaker 1: but it's really dangerous, and I can sort of tick
Speaker 1: through the ways. First of all, there's no such thing
Speaker 1: as federal police in the way that people normally think
Speaker 1: of police doing patrols. There are certainly are federal law
Speaker 1: enforcement agents at the I being the most widely known,
Speaker 1: but D E. A and A T S and on
Speaker 1: down the line. US marshals who are involved in this
Speaker 1: case DHS Homeland Security, but they do not ordinarily do
Speaker 1: what we would think of as street patrol, crowd control,
Speaker 1: that kind of thing, particularly if you're not dealing with
Speaker 1: federal property. The streets of Portland are not federal property,
Speaker 1: so let's start with that. Second, of all, most law
Speaker 1: enforcement agencies require that unless you're talking about an officer
Speaker 1: who's working in an undercover setting, which these guys are not.
Speaker 1: At a minimum, the agency is identified on the uniforms,
Speaker 1: and frequently the name of the person is identified on
Speaker 1: the uniform. Same thing with our military, look at and
Speaker 1: even generals have their names on their breast pockets. So
Speaker 1: the fact that there's this level of secrecy about this
Speaker 1: is extraordinarily alarming and I think also potentially dangerous to
Speaker 1: citizenry and to law enforcement officers. To put this in context,
Speaker 1: for example, early Monday, dozens of people were gathered at
Speaker 1: the Federal building with shields and helmets and bats and
Speaker 1: hockey sticks, and the Feds used tear gas and apparently
Speaker 1: shut projectiles at them. Are they within their rights to
Speaker 1: be defending the federal building in the abstract sense, Yes,
Speaker 1: a federal building is federal property, not necessarily everything around it,
Speaker 1: but sure, But the question is is the level of
Speaker 1: force being used here justified by the situation. I mean,
Speaker 1: there's been videos that have gone viral that show these
Speaker 1: sort of mystery federal troopers using vastly excessive force on
Speaker 1: people who pose no threat whatsoever. And when you get
Speaker 1: into things like shooting tear gas and concussion grenades and
Speaker 1: flares and things like that, that is on the very
Speaker 1: aggressive side of enforcement. I mean, that is far more
Speaker 1: than just defending and for texting a property. The other
Speaker 1: thing that alarms me from a sort of criminal justice
Speaker 1: and former prosecutorial standpoint is process or lack of process here.
Speaker 1: I mean, people have a right to know who is
Speaker 1: arresting them and what they are being charged for. And
Speaker 1: that's for a couple of reasons. One, anyone who's charged
Speaker 1: with a crime has the right to challenge the arrest,
Speaker 1: and you need to know who you're being arrested by.
Speaker 1: And two is, in order to make a federal arrest,
Speaker 1: you need probable cause. And there are a couple of
Speaker 1: ways to establish probable cause. You can go to a judge,
Speaker 1: you can go to a grand jury, or if an
Speaker 1: officer sees a crime committed right in front of his eyes.
Speaker 1: Those are the three ways. But just randomly picking up
Speaker 1: protesters and throwing them into cars and then releasing them
Speaker 1: without charges is completely against the way our system works.
Speaker 1: The New Year of Times got ahold of uh memo
Speaker 1: of the Department of Homeland Security that said that these
Speaker 1: people have not been trained in this crowd control. That
Speaker 1: lack of training is a serious concern because crowd control
Speaker 1: is not just something that an officer can into it
Speaker 1: that that you just sort of automatically. No, it's not
Speaker 1: common sense. You need specialized training to learn how to
Speaker 1: manage a crowd without escalating that crowd. Right that the
Speaker 1: real job of a good police officer is de escalation,
Speaker 1: taking the temperature down, not rilling things up. And if
Speaker 1: you watch what's happening, I think you can see that
Speaker 1: lack of training. I also want to point out another
Speaker 1: potential danger here, which is people need to know which
Speaker 1: officers are real. I mean, there is a federal crime
Speaker 1: of impersonating a law enforcement officer. I'm not suggesting these
Speaker 1: people are, but if someone wanted to go down to
Speaker 1: the Army Navy store buy some surplus and slap a
Speaker 1: police badge on there. Who's going to know the difference.
Speaker 1: And the last thing that I want to say that
Speaker 1: goes to an issue of danger is what law enforcement
Speaker 1: officers called deconfliction. Whatever you have law enforcement officials who
Speaker 1: may cross path, then it happens all the time. Maybe
Speaker 1: there's local police in an area where the federal FBI,
Speaker 1: let's say, is going to be doing a search for it.
Speaker 1: You need to give everyone a heads up say hey,
Speaker 1: we're gonna be in your area where cops don't shoot.
Speaker 1: We're not breaking into a house. It's not a robbery.
Speaker 1: And so if you have law enforce from officers who
Speaker 1: are off the record and unidentifiable, that poses a risk
Speaker 1: to those officers and to other law enforcement officers in
Speaker 1: are coming up next Oregon's lawsuit. I've been talking to
Speaker 1: former federal prosecutor Ali Hoenig about Oregon suing the US
Speaker 1: over the attention of residents during anti racism protests in Portland,
Speaker 1: shortly after a judge rule that journalist alleging local police
Speaker 1: had assaulted them could add federal agents to their own lawsuits.
Speaker 1: In the States, lawsuit against the Department of Homeland Security
Speaker 1: in the U. S. Marshal Service. The Attorney General alleges
Speaker 1: they've overstepped their powers in threatening, injuring, or arresting protesters.
Speaker 1: In its lawsuit, Oregon sided two incidents it says took
Speaker 1: place in the past week. A peaceful protester was allegedly
Speaker 1: struck in the head with an impact weapon and sustained
Speaker 1: severe injuries, and an unmarked minivan with undercover federal agents
Speaker 1: wearing generic green military fatigues allegedly forcibly detained a second
Speaker 1: protester who was later released. Elly tell us about the
Speaker 1: grounds of the lawsuit by the Oregon A G. Yeah,
Speaker 1: so there's several lawsuits here, but essentially the essence of
Speaker 1: the the Oregan Ages lawsuit is that these secret police
Speaker 1: are unlawfully arresting and detaining people, meaning without probable cause,
Speaker 1: without proper due process and documentation. And again that I mean,
Speaker 1: this is core Bill of rights constitutional stuff that you
Speaker 1: are entitled to be advised of the charges against you,
Speaker 1: you are entitled to have council appointed, you are entitled
Speaker 1: to defend yourself. You're entitled to enter a plea of
Speaker 1: or not guilty. I mean, all of that is being violated.
Speaker 1: So that's the essence of the AGES lawsuits. There's also
Speaker 1: a separate lawsuit that's been filed by the a c
Speaker 1: l U complaining about restraints and limits, um and intimidation
Speaker 1: tactics being directed at the media and at other official
Speaker 1: observers from law enforcement or from other sort of governmental
Speaker 1: entities that are trying to figure out what's happening there.
Speaker 1: So I and the U. S Attorney, who is the
Speaker 1: chief federal prosecutor for the district, also has requested an
Speaker 1: investigation and assistance. So I think it's a good thing
Speaker 1: that a lot of different people, coming from a lot
Speaker 1: of different levels of government and from outside government are
Speaker 1: raising flags here. Suppose the judge, in let's take the
Speaker 1: AGES lawsuits, suppose the judge issues a preliminary injunction against
Speaker 1: the FEDS. Who's going to enforce that right? Well, I
Speaker 1: think the answer is it would It would fall to
Speaker 1: either the a G or the individual whose rights were violated.
Speaker 1: But violating an injunction from the federal judges is very
Speaker 1: serious business. I mean that could be to contempt findings,
Speaker 1: which can be there is a criminal form of contempt.
Speaker 1: So if it gets to that point, then we're talking
Speaker 1: real lawlessness. But but there there could be real consequences
Speaker 1: for people who violate such an order. The President has
Speaker 1: said that he sent troops in because it was obvious
Speaker 1: that the Oregon couldn't take care of its its own problems.
Speaker 1: When it comes to the president's power versus the power
Speaker 1: of city and state officials who have said we don't
Speaker 1: want you here. In fact, the mayor said please leave.
Speaker 1: Does the president have the authority to send troops in.
Speaker 1: The president does have fairly broad not fairly very broad
Speaker 1: authority to deploy federal troops. Now, look, there's an important
Speaker 1: distinction here. The president cannot deploy the military, and it
Speaker 1: doesn't appear these people are military, even though their dressed
Speaker 1: military style. Cannot deploy the military to perform law enforcement functions,
Speaker 1: that's against the law. But that the president can deploy
Speaker 1: the military to keep order, and he can deploy federal
Speaker 1: law enforcement to perform law enforcement functions really um very
Speaker 1: very broadly. Any and while one way to do that
Speaker 1: is upon request from a governor, he doesn't need a
Speaker 1: request from a duffer. I mean think back the Little
Speaker 1: Rock for example, with the civil rights movement, president sent
Speaker 1: in the National Guard against the wishes of segregation governors. UM, So, look,
Speaker 1: there's a legitimate question to hear about whether the president
Speaker 1: should be doing this and whether it's necessary. I think
Speaker 1: it's clearly not necessary. I think it's largely for show.
Speaker 1: And like you said, the leaders of the area have
Speaker 1: asked the President not to send people in. But but
Speaker 1: legally he does have fairly broad discretion to deploy federal
Speaker 1: agents in this case. The federal response has been that
Speaker 1: we're protecting federal buildings and federal officers. So as long
Speaker 1: as they're you know, within the building parameters, are they
Speaker 1: properly there? But once I go into the streets, does
Speaker 1: that then start to raise questions. I have no problem
Speaker 1: with defending and protecting federal buildings, federal property, federal assets,
Speaker 1: and there's an argument that a certain area of the
Speaker 1: sort of vicinage around the building is included in that.
Speaker 1: But if you're going to do that, do it right,
Speaker 1: do it lawfully, do it transparently. Do it the way
Speaker 1: that virtually all law enforcement functions in this country, which
Speaker 1: is a identify yourself, what agency you're representing, and preferably
Speaker 1: your name, uh be only make a rest if you
Speaker 1: have established probable cause through a judge through a grand
Speaker 1: jury or through directly observing an obvious crime rate in
Speaker 1: front of you, and then see give people who you
Speaker 1: arrest their due process. They are entitled legally to be
Speaker 1: advised of the charges against them, to make appearance in court,
Speaker 1: to have counsel appointed, etcetera. So saying that well, we're
Speaker 1: just here defending federal assets is fine, but it doesn't
Speaker 1: excuse anything in the world being done in order to
Speaker 1: achieve that. You still have to play by the rules
Speaker 1: in defending those federal properties and assets. This might end
Speaker 1: before these lawsuits actually find their way through the courts.
Speaker 1: Is the Oregon a G also asking for damages. I
Speaker 1: don't see a request for monetary damages. I think that
Speaker 1: would be hard to prove on a statewide level that
Speaker 1: the a G represents. But I look, I think individuals
Speaker 1: who have been wrongly detained, if they can show that,
Speaker 1: absolutely would have a potential lawsuit for damages against the
Speaker 1: federal government. I mean, if somebody can show their rights
Speaker 1: were violated, they were wrongly taken into custody, they were
Speaker 1: wrongly arrested, apprehended, their absolutely could be a civil suit
Speaker 1: for monetary damages there and we should also point out
Speaker 1: that local authorities are also doing criminal investigations into some
Speaker 1: of these incidents. For example, there was a lot of
Speaker 1: video of former Navy civil engineer who was beaten with
Speaker 1: a baton and pepper sprays, so those are also going
Speaker 1: on at the same time. Yeah, yeah, what criminal law
Speaker 1: needs to prevail here, I would say, um, in a
Speaker 1: couple of respects. First of all, if protesters are genuinely
Speaker 1: committing crimes assaults, uh, destruy action of property, then those
Speaker 1: crimes need to be investigated and prosecuted in accordance with
Speaker 1: the law and do process. But certainly if these camouflaged
Speaker 1: federal troops or agents are committing crimes, are using unjustified
Speaker 1: levels of force, then they can be charged with assaults
Speaker 1: as well. I mean, there's no immunity from criminal charges
Speaker 1: for police officers or law enforcement aidens who use excessive force.
Speaker 1: There is this thing called qualified immunity which is now
Speaker 1: become a controversial notion, which says that a federal law
Speaker 1: enforcement officer cannot be sued civilly for money damages in
Speaker 1: his personal capacity. But you absolutely are subject to potential
Speaker 1: criminal charges if you use excessive force or assault somebody. Um,
Speaker 1: without justification. Thanks Eli. That's former federal prosecutor Elie Honig
Speaker 1: of Lowenstein Sandler. Coming up next on the Bloomberg Law Show.
Speaker 1: The legal battle over the subtoinas for President Trump's financial
Speaker 1: records goes on. I'm June Grosso and this is Bloomberg.
Speaker 1: The Supreme Court has already ruled on the grand jury
Speaker 1: subpoena and congressional subpoenas for President Trump's financial records, but
Speaker 1: the legal battle is far from over its return to
Speaker 1: the lower courts. The Supreme Court has cleared the way
Speaker 1: for the lower courts to move ahead in the clash
Speaker 1: over the grand jury subpoena. Manhattan District Attorney Cyrus Vans
Speaker 1: had asked the justices not to wait twenty five plus days,
Speaker 1: as they normally do after issuing an opinion. The court
Speaker 1: had rejected Trump's claim of sweeping immunity, while leaving open
Speaker 1: the possibility he could raise more specific objections in the
Speaker 1: lower courts, and Trump is doing just that. Joining me
Speaker 1: is Harold crant, A, professor of the Chicago Kent College
Speaker 1: of Law. This seems to be moving fast, how fast
Speaker 1: compared to other cases Courts typically waits the twenty five
Speaker 1: days or so to issue a mandate or issue in
Speaker 1: order to lower court to resume jurisdiction over a case
Speaker 1: once it's been decided by the Supreme Court. Here, uh,
Speaker 1: the District Attorney of New York advance decided to ask
Speaker 1: for the case to be returned to New York more
Speaker 1: quickly than that in order to get the whole controversy
Speaker 1: of Trump's taxes before the court again to move with
Speaker 1: their case along. And the Supreme Court agreed, largely because
Speaker 1: Trump's attorneys evidently acquiesced. But still we're going to have
Speaker 1: at least one more round of litigation, at least in
Speaker 1: the New York Federal Court, because Trump's attorney has said
Speaker 1: that he's goes claimed probably that this is a phishing expedition,
Speaker 1: it's the intent to harass um the president um and
Speaker 1: that indeed the subpoena for taxes is too broad. So
Speaker 1: they will have to be a hearing on those queens
Speaker 1: probably at some point in August. It was surprising to
Speaker 1: me that Trump's lawyers didn't fight the speeding up of
Speaker 1: the case. They agreed to it, and that was a
Speaker 1: big part of why Justice Roberts let it go forward.
Speaker 1: If they're fighting this too, then, noww why would they
Speaker 1: agree to move it along quicker? The question crossed my
Speaker 1: mind as well, and my only speculation is that the
Speaker 1: attorney did not want to take off the Supreme Court
Speaker 1: anymore because it's a chance at this case, in some
Speaker 1: form or other, whether a contempt or direct appeal may
Speaker 1: find its way back to the the Supreme Court a second time.
Speaker 1: This is the case involving the subpoena from the New
Speaker 1: York Grand Jury Prosecutor Cyrus Vance's office. Remind us what
Speaker 1: the Supreme Court said about President Trump being in nearly
Speaker 1: the same situation as any other person with regard to
Speaker 1: the subpoena. So the Court first held, and most importantly,
Speaker 1: that the president is not above the law, that the
Speaker 1: president does not have a complete immunity from civil process
Speaker 1: or from criminal process for that matter, while he's in office,
Speaker 1: and that that's true with respect to a subpoena from
Speaker 1: a state investigatory agency, as it would be from a
Speaker 1: federal investigatory agency. But and so holding, the Court did
Speaker 1: say that the president should have the opportunity to contest
Speaker 1: the subpoena on grounds, first of all, available to anybody else,
Speaker 1: such as sects too broad, but also on the grounds
Speaker 1: that somehow the subpoena will interfere with the president's conduct
Speaker 1: us his constitutional office of presidency um. In this case,
Speaker 1: uh the Trump's attorney Secolo has suggested that there may
Speaker 1: be some valid reasons for challenging subpoena. I mean, I
Speaker 1: think most of us think that they're frivoleates um. But
Speaker 1: there may be one claim that has a bit of mirror,
Speaker 1: which is the fact that they've looked for I believe,
Speaker 1: eight years of tax returns and if the grand jury
Speaker 1: is really focusing merely on the hush money paid to
Speaker 1: Stormy Daniels by Michael Cone, which was the thesis, that's
Speaker 1: a one or two year process of looking at the taxes,
Speaker 1: if not an eight year But these are the kinds
Speaker 1: of issues that will be resolved relatively expeditiously by the
Speaker 1: cord upon reman from the Supreme Court. That was the
Speaker 1: argument that I thought carried the most weight, that the
Speaker 1: scope of the subpoena was overbroad, and President Trump's attorney
Speaker 1: said that the d A just copied the congressional subpoenas.
Speaker 1: Do you think that's their strongest argument. I do think
Speaker 1: that the strongest argument is the question of scope of
Speaker 1: the subpoena. But we don't know exactly what the grand
Speaker 1: jury is investigating. If the grand jury is only investigating
Speaker 1: hush money, obviously that would be triggered with respect to
Speaker 1: the Camp Hayne because that's when evidently President Trump paid
Speaker 1: this money and then tried to claim the deduction for
Speaker 1: it as a legitimate expense. But on the other hand,
Speaker 1: maybe the grand jury has investigated a pattern of these payments.
Speaker 1: Maybe the grand jury has investigated some other kind of
Speaker 1: financial impropriety with respect to the campaign, and so needs
Speaker 1: to look at a couple more years of cash returns.
Speaker 1: But I do think it's questionable of where this eight
Speaker 1: year of cash returns came up. They came up with,
Speaker 1: and that may not be directly linked to the investigation
Speaker 1: that they're undertaking. You're listening to Bloomberg Law with June
Speaker 1: Grazzo from Bloomberg Radio. I've been talking to Harold Branch,
Speaker 1: professor at the Chicago Camp College of Law, about the
Speaker 1: Supreme Court clearing the lower courts to move ahead in
Speaker 1: a clash over a grand jury subpinia for President Trump's
Speaker 1: financial records. From the Manhattan District Attorney Trump's attorneys want
Speaker 1: more information about the injury investigation. Grand Jury investigations are
Speaker 1: supposed to be secret. Would the judge allow them to
Speaker 1: get more information? I doubt it. I mean, I think
Speaker 1: the argument by Trump's attorney is that how do we
Speaker 1: know if this is a legitimate investigation and not for
Speaker 1: harassment unless we know what the focus of the investigation is. Now,
Speaker 1: there are some alternatives here, and for instance, the Advance
Speaker 1: could give a overview of the investigation in camera, meaning
Speaker 1: in secret, to the presiding judge and in that way
Speaker 1: satisfy the judge that this is not a frivolous or
Speaker 1: vexatious attempt to get information about the president. That's a possibility,
Speaker 1: So there is. It is extremely rare that someone would
Speaker 1: have the right to know what the grand jury is
Speaker 1: looking into. But there is a kind of kernel here
Speaker 1: formed by uh by President fromp lawyers that suggest that
Speaker 1: if you know, we need to have some baseline to
Speaker 1: hold that this investigation is not purely for harassment. And
Speaker 1: if that's true, then the question is what will Vance
Speaker 1: be willing to say public or will he be willing
Speaker 1: to tell the judge again in private? Um what the
Speaker 1: injury generally is looking into now that remains to be seen.
Speaker 1: Trump's attorneys also indicated that they are going to raise
Speaker 1: the claim that there is a political motivation behind the subpoena,
Speaker 1: is a desire to harass the president. But this judge
Speaker 1: previously found the subpoena to be proper, and he asked
Speaker 1: them whether there were any new facts or different facts
Speaker 1: to suggest the investigation was in bad faith. Does it
Speaker 1: seem likely that the judge is just going to affirm
Speaker 1: his prior ruling. Yeah. The argument that this is purely
Speaker 1: a frivolous investigation on the on behalf of the New
Speaker 1: York authorities is already been raised. It's already been rejected. Um.
Speaker 1: And I think from what we know, just in terms
Speaker 1: of the payment to the hushmoney to Stormy Daniels, that
Speaker 1: itself suggests that there is a good faith basis for
Speaker 1: this investigation, and again it might be proper. We simply
Speaker 1: don't know. I think the only claim really that that
Speaker 1: the Trump's attorney has that may have a little some
Speaker 1: merrita is narrowing down the subpoena to show that there's
Speaker 1: at least some relevance or some connection between the years
Speaker 1: of tax material sought and the scope of the investigation.
Speaker 1: But that being said, we simply don't know how broad
Speaker 1: the investigation is right now, and there may be other
Speaker 1: things that are being swept within the sites of the
Speaker 1: prosecutors in New York. Trump's attorneys mentioned an argument that
Speaker 1: it would interfere with his constitutional duties. But didn't the
Speaker 1: Supreme Court take that argument away from the president by
Speaker 1: saying he should be treated as any other person would be.
Speaker 1: I think that the Supreme Court let a small, a
Speaker 1: very narrow outlet show that if there's something not in general,
Speaker 1: that in general that an investigation would interfere with the
Speaker 1: president's conduct of its constitutional responsibilities, but there was something
Speaker 1: particular or unique about an investigation which would undermine or
Speaker 1: frustrate president's ability to lead. There has been nothing suggested
Speaker 1: here whatsoever, and it's impossible to understand how it could
Speaker 1: given that these it's not this tax information is being
Speaker 1: held by the accountant. It causes no duties on Trump
Speaker 1: at all. And indeed, Trump previously promised he would reveal
Speaker 1: the text um information to the public. He was nicked
Speaker 1: on that um. But but it's unbelievable to think that
Speaker 1: there could be a valid claim here that the release
Speaker 1: of the tax materials would frustrate the president's ability to
Speaker 1: lead the country. During a court hearing, the d A
Speaker 1: said that the longer Trump fights, the higher the chance
Speaker 1: that the statute of limitations will expire. Let's not let
Speaker 1: delay kill this case. Yeah, there is a statue limitations here.
Speaker 1: It's a little bit unclear for which crimes because there
Speaker 1: are different setual limitations. Um. And what that leads to.
Speaker 1: The interesting question though, is whether one a sitting president
Speaker 1: can be indicted. We've never had a sitting president be
Speaker 1: indicted before. The Department of Justice has come out on
Speaker 1: several prior occasions and the wake of the Nixon investigation
Speaker 1: and the Clinton investigation and said that one can a
Speaker 1: sitting president cannot be indicted. Um. And it makes sense
Speaker 1: that if you're worried about a statue of limitation, you
Speaker 1: at least see in at least indict the president under seal.
Speaker 1: So we may be in stage because of this New
Speaker 1: York case into another constitutional moment, that is the question
Speaker 1: of whether a sitting president can at fact be indicted. Now,
Speaker 1: historically we did see that a think vice president can
Speaker 1: be and anyone's bureau agne was subject to the criminal
Speaker 1: investigation um before he had to leave the White House.
Speaker 1: But in terms of the president, we've never seen that,
Speaker 1: and we may be that may be coming up well
Speaker 1: right before the election. Let me take you through a series.
Speaker 1: Suppose that the judge, Judge Marrero, says this subpoena is good.
Speaker 1: You can enforce the subpoena. You can comply with the
Speaker 1: subpoena to the accountants. Then President Trump appeals to the
Speaker 1: Second Circuit. But suppose the judge does not enjoin the
Speaker 1: execution of the subpoena while the Second Circus case is
Speaker 1: played out. But then what will happen as President Trump's
Speaker 1: attorney would make an emergency motion in the Second Circuit
Speaker 1: to stay enforcement the subpoena pending resolution of the appeal.
Speaker 1: And my guess is that is exactly what the attorney
Speaker 1: would do. Uh the Second would hold an emergency hearing
Speaker 1: on that motion and make a decision um. But I
Speaker 1: think that this is something that given the context, both
Speaker 1: the Second Circuit as well as the lower court would
Speaker 1: decide expeditiously. But it may end up going back to
Speaker 1: the U. S. Supreme Court, and the U. S. Supreme
Speaker 1: Court then would have to decide whether to decide this
Speaker 1: on emotion or decide this on a another hearing. Um.
Speaker 1: My guess is there will be distaste in the Supreme
Speaker 1: Court to have a full hearing on this for a
Speaker 1: second time because there won't be that many unique issues raised. Um.
Speaker 1: And so it's possible that on the eve of the election,
Speaker 1: the release will be released of the taxes, but that
Speaker 1: doesn't mean anything because the information will be secretly before
Speaker 1: the grand jury, and it's then it's up to the
Speaker 1: grand jury to side whether to indict President Trump, indict
Speaker 1: his son, indict here is accountants or whomever else allegedly
Speaker 1: was part of this conspiracy to commit tax fraud. Because
Speaker 1: if you're looking at the odds, it does seem like
Speaker 1: the judge who previously ruled the subpoena was proper in
Speaker 1: a seventy eight page opinion and the second Circuit which
Speaker 1: previously ruled the subpoena was proper. That both those courts
Speaker 1: are going to affirm what they said before. It's very
Speaker 1: clear to me that the subpoena will be upheld, perhaps
Speaker 1: in shorten their truncated form, but it will be upheld
Speaker 1: by both the lower Court and the Court of appeals,
Speaker 1: and I think it will actually be affirmed by the
Speaker 1: Supreme Court if it goes up there as well as
Speaker 1: Supreme Court may even refuse to hear it. But the
Speaker 1: key question for those interested in the election is whether
Speaker 1: once those claims are resolved, and it will take a
Speaker 1: couple of months do that, does the grand jury have
Speaker 1: any time too then the way the information with other
Speaker 1: information that's received to decide whether to issue and tittenment
Speaker 1: again against Trump, against his family, against his accountants, who
Speaker 1: or whomever else was engaged in this alleged tech fraud.
Speaker 1: Suppose that the grand jury has received the subpoena, they
Speaker 1: make an indictment of President Trump and perhaps some others.
Speaker 1: In a press conference, can the district attorney reveal some
Speaker 1: of the underpinnings of that indictment and say, after we
Speaker 1: got the tax returns, this is what we found. So
Speaker 1: the the first of all, the information may be leaked,
Speaker 1: and I think that President Trump's supporters are you know,
Speaker 1: have a have legitimacy in terms of being concerned that
Speaker 1: the taxes will be be leaked. But as sidon being leaked, uh,
Speaker 1: the prosecutor at a press conference could give a general
Speaker 1: information about what information backed at the grand jury's decision
Speaker 1: to indict, if indeed they are allowed to indict a
Speaker 1: sitting president, uh, but they cannot give the details. And again, um,
Speaker 1: I think that's really don't know about this idea of
Speaker 1: indicting a sitting president. There is all this research by
Speaker 1: the Justice Department saying we understand there's a problem because
Speaker 1: of the statute of limitations, um, but we just think
Speaker 1: it's somehow unseemingly uh to do that. So it's gonna
Speaker 1: be not a simple issue at all. Well, my own view,
Speaker 1: I don't think you can prosecute. I totally think you
Speaker 1: have to put off the prosecution until after the president
Speaker 1: nice office. I mean, in my view, obviously they they've
Speaker 1: tried it, like in Israel and some of the countries, um,
Speaker 1: which has been a mess. But I do think you
Speaker 1: can indict, and that's the line I would draw. But
Speaker 1: you know, you can argue both ways, because there's very
Speaker 1: little evidence in the constitution, uh, you know, one way
Speaker 1: or the other. I mean, we know about impeachment, but
Speaker 1: we don't know about indictment. So you know, the argument
Speaker 1: is pretty much up for grabs. Thanks Harold. That's Harold
Speaker 1: Grant professor at the Chicago Kent College of Law. The
Speaker 1: Supreme Court refused to fast track the subpoenas from the
Speaker 1: House for President Trump's financial records, rejecting their request to
Speaker 1: return two cases to the appeals court level ahead of schedule.
Speaker 1: The Court gave no explanation for its refusal, even though,
Speaker 1: as we've been discussing in Chief Justice John Roberts last
Speaker 1: week granted a similar request from Manhattan District Attorney Cyrus Vans.
Speaker 1: And that's it for this edition of the Bloomberg Law Show.
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