WEBVTT - Mueller Steps Towards Red Line with New Subpoenas

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<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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<v Speaker 1>day we bring you insight and analysis into the most

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<v Speaker 1>important legal news of the day. You can find more

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<v Speaker 1>episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud,

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<v Speaker 1>and on Bloomberg dot com. Slash Podcasts has special counsel

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<v Speaker 1>Robert Mueller across the line President Trump set out early

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<v Speaker 1>in the Russia investigation with his latest move a reported

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<v Speaker 1>subpoena of the Trump Organization. The New York Times is

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<v Speaker 1>reporting that Mueller subpoena the Trump Organization for documents in

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<v Speaker 1>the first known instance of the Special Council demanding records

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<v Speaker 1>directly related to President Trump's businesses. Joining me as William Banks,

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<v Speaker 1>professor at Syracuse University Law School, Bill, how does the

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<v Speaker 1>subpoena fit in with the news that Mueller began examining

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<v Speaker 1>a broad range of transactions involving Trump's businesses as well

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<v Speaker 1>as those of his associates back in July. Well, I

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<v Speaker 1>think that you know, this is is an expansion of

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<v Speaker 1>the investigation, but it really shouldn't be regarded as a

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<v Speaker 1>as a surprise. I think because the the extent to

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<v Speaker 1>which the financial world from the Russian side has influenced

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<v Speaker 1>the activities of those who are trying to affect the

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<v Speaker 1>election has long been a subject of Mueller's staff's concerns,

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<v Speaker 1>and now going after these records will provide more details

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<v Speaker 1>about the relationship of any Russian financial interest in any

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<v Speaker 1>Trump business ties. Mueller's mandate is pretty broad as the

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<v Speaker 1>Russia question in any matters that arose or may arise

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<v Speaker 1>directly from the investigation. Isn't that pretty broad? It's incredibly broad,

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<v Speaker 1>and I think, you know, there was written that way

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<v Speaker 1>on purpose. You can't tell that the outset where an

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<v Speaker 1>investigation like this may lead. This is not unusual, I think.

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<v Speaker 1>And now we're seeing that financial crimes could potentially be

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<v Speaker 1>beyond you know, in addition to those that we've already

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<v Speaker 1>been focusing on, obstruction, uh aligned to members of the

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<v Speaker 1>of the prosecutorial team, failure to comply with the requirements

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<v Speaker 1>of foreign agent registration, and like this is just another chapter.

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<v Speaker 1>Could it also be possible charge of conspiracy now that

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<v Speaker 1>there is the indictment of the Russians and there's evidence

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<v Speaker 1>of a push in to build a Trump tower in Moscow,

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<v Speaker 1>Trump's involvement in controversial SOHO develop in New York with

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<v Speaker 1>Russian associates and more. What are the possibilities of conspiracy charges? Yeah,

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<v Speaker 1>the conspiracy is is a better legal descriptor of what

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<v Speaker 1>we've euphemistically referred to as collusion. And the conspiracy laws

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<v Speaker 1>are complex and they're not all the same aim, but

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<v Speaker 1>in general, there has to be some sort of an

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<v Speaker 1>overt agreement understanding on the part of the conspiring officials

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<v Speaker 1>that they were up to something, that it was in

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<v Speaker 1>violation of the law. Some mere tolerance or awareness that, say,

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<v Speaker 1>a Russian was going to use their financial resources to

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<v Speaker 1>try to affect the election outcome may not be sufficient,

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<v Speaker 1>but you know, awareness of it, and then sort of

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<v Speaker 1>a tacit agreement or steering of those activities, as may

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<v Speaker 1>have been the case with with Donald Trump Jr. At

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<v Speaker 1>that July sixteen meeting that we've talked about so many times,

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<v Speaker 1>the Trump organization says it's been cooperating with Mueller's investigation,

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<v Speaker 1>and it's unclear what prompted Muller to actually issue with subpoena.

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<v Speaker 1>Are there reasons he might do that besides the Trump

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<v Speaker 1>organization refusing to cooperate, I mean, might he want to

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<v Speaker 1>sure that he has everything. Yes, I mean it's that's

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<v Speaker 1>a good point. And indeed, up till now anyway, that

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<v Speaker 1>Trump organization has been very cooperative and responsive by all

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<v Speaker 1>accounts in producing records that are sought for. But the

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<v Speaker 1>subpoena does, as you say, provide some insurance that that

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<v Speaker 1>everything is coming as forthcoming. That might be relevant to

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<v Speaker 1>the question that's asked in the subpoena. Obviously, as subpoena

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<v Speaker 1>is enforceable, and if for some reason things are not

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<v Speaker 1>fully uh sought are not fully provided, then the then

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<v Speaker 1>the prosecutors can try to enforce it. Bill. Let's let's

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<v Speaker 1>talk about Trump and the possibility of his trying to

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<v Speaker 1>fire Muller. He's never said explicitly that he would fire

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<v Speaker 1>Mueller if the prosecutor went after his finances, but he

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<v Speaker 1>did suggest to The New York Times last July that

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<v Speaker 1>his finances would be a red line where Mueller's investigation

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<v Speaker 1>shouldn't go beyond um. Trump is in the middle of

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<v Speaker 1>this high level staff shake up, which could include a G.

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<v Speaker 1>Jeff Sessions. What would happen if Trump tried to have

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<v Speaker 1>Moller fired. Well, we you know, we've talked about this before,

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<v Speaker 1>and it's hard to know for sure, But if he

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<v Speaker 1>did replace Sessions, uh say, with Mike Pompeo or someone

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<v Speaker 1>who's closely uh aligned with Trump and Trump's use, we

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<v Speaker 1>could have to revisit the firing questions all over again. Certainly,

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<v Speaker 1>the Attorney General could do it on the on the

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<v Speaker 1>order of the president, but in then indeed we have

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<v Speaker 1>I think a lot of fuel for the fire. That

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<v Speaker 1>Congress would need to restart an investigation on its own,

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<v Speaker 1>appoint an independent council of its own, or even begin

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<v Speaker 1>impeachment proceedings. If Nolan gets so far as to indicting

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<v Speaker 1>members of the Trump family and would begin to see pardons,

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<v Speaker 1>I think we'll have a similar kind of impasse. It

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<v Speaker 1>could get very ugly, even uglier than we've been witnessed too.

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<v Speaker 1>So far. The Republican Congress has so far seemed unwilling

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<v Speaker 1>to make any moves in that area. In fact, we

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<v Speaker 1>know that the House committee investigating the Russia connection came

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<v Speaker 1>out with the Republicans on it, came out with a

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<v Speaker 1>whitewash without finishing really the investigation, without having you know,

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<v Speaker 1>subpoenaed a lot of people that they that are that

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<v Speaker 1>Mueller is is subpoena ng or getting a lot of documents.

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<v Speaker 1>So I mean, is there any indication that that if

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<v Speaker 1>the House remains and Republicans hands that that it would

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<v Speaker 1>actually go towards hiring a special counsel and impeachment well

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<v Speaker 1>these you know, it would take the developments that we

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<v Speaker 1>just speculated about, I think, attempting either to fire Mueller

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<v Speaker 1>or the President beginning to issue pardons that would push

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<v Speaker 1>us in that way. I think by now the Republican

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<v Speaker 1>committee that released that white as you call it, a whitewash,

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<v Speaker 1>should be embarrassed by what they've released, imply on the

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<v Speaker 1>basis of the Mueller revelations in the last couple of

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<v Speaker 1>weeks or so far from there being nothing to uh

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<v Speaker 1>to complain about in terms of Russian interference and Trump

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<v Speaker 1>associates involvement, the Mueller team has already issued of what

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<v Speaker 1>nineteen indictments all count in, and there's no indication that

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<v Speaker 1>the end is anywhere near. I called it a whitewash.

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<v Speaker 1>I should have said that it was more like an

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<v Speaker 1>incomplete investigation and in uh seemingly incomplete conclusion, at least

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<v Speaker 1>according to the Democrats on that committee, where there was

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<v Speaker 1>certainly no cooperation towards the end between the Democrats and

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<v Speaker 1>the Republicans on that House committee. Well, Bill, well, we'll

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<v Speaker 1>keep talking about this, and because the same question seemed

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<v Speaker 1>to keep coming up over and over again. Though obviously

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<v Speaker 1>President Trump knows that Mueller has been investigating his finances

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<v Speaker 1>because he knows the Trump organization has been cooperating with him.

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<v Speaker 1>So we'll see what happens, Bill, and we will call

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<v Speaker 1>on you again. Thank you so much for being with

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<v Speaker 1>us here. That's William Banks. He's a professor at Syracuse

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<v Speaker 1>University Law School. Buyer's plan to win anti trust approval

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<v Speaker 1>for its takeover of Monsanto has hit some serious bumps.

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<v Speaker 1>The company has not satisfied US officials, who are worried

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<v Speaker 1>this sixty six billion dollar merger could heart competition. According

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<v Speaker 1>to two people familiar with the matter, joining me as

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<v Speaker 1>Jennifer Reese and your litigation and Liss for Bloomberg Intelligence, Jen,

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<v Speaker 1>this is part of a wave of consolidation of seed

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<v Speaker 1>and crop chemical firms, and Buyer did win anti trust

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<v Speaker 1>approval for two prior deals. What are anti trust officials

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<v Speaker 1>concerned about with this deal? Well, it's apparent that they

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<v Speaker 1>have what we call both horizontal concerns and vertical concerns.

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<v Speaker 1>So they have concerns about areas seeds, for instance, and

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<v Speaker 1>pesticides where the companies directly compete selling the same product

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<v Speaker 1>to buyers, and they're also concerned with where they operate

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<v Speaker 1>in two different levels of a chain of distribution, like

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<v Speaker 1>maybe they have I P or technology that they licensed

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<v Speaker 1>to a competitor. Um. We think here, given the news

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<v Speaker 1>that the dj might not be happy with what's been

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<v Speaker 1>offered so far, that the issues that they're concerned about

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<v Speaker 1>might be vertical. And the reason is because Buyer has

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<v Speaker 1>already committed to selling almost all their seeds as well

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<v Speaker 1>as that overlap with Monsanto, as well as a pesticide

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<v Speaker 1>that competes with them mon Santo Pesticide, And it seems

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<v Speaker 1>like most of the horizontal overlaps are sort of taken

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<v Speaker 1>care of by what they've offered. But what we understand

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<v Speaker 1>from Bloomberg News is that they've had talks with the

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<v Speaker 1>Department of Justice who have said we need more. So

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<v Speaker 1>it seems like perhaps with the Department of Justice is

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<v Speaker 1>worried about are are these vertical overlaps, What kind of

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<v Speaker 1>companies or what kind of assets are we talking about?

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<v Speaker 1>Buyer having to divest. Well, it's really hard to say

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<v Speaker 1>because these these industries are so complex, and I think

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<v Speaker 1>a lot of people are a little bit baffled. But

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<v Speaker 1>you know, I've talked a lot to the v I

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<v Speaker 1>industry analysts in this area, Chris Perella specifically about what

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<v Speaker 1>could be going on here and what else it could be.

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<v Speaker 1>And so one suggestion he made is that it could

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<v Speaker 1>be now this would be a horizontal overlap, but it

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<v Speaker 1>could be an overlap in research and development that they're

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<v Speaker 1>both doing to get into digital farming. So we're providing

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<v Speaker 1>collections of data tailored to farmers to give them information

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<v Speaker 1>that would help them with their farming. That would be horizontal,

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<v Speaker 1>and perhaps it might take divestiture of R and D.

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<v Speaker 1>Another option is that it is about one of these

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<v Speaker 1>situations where there's I p that their concern might be

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<v Speaker 1>withheld from competitors, and in that case, it might be

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<v Speaker 1>that they have to provide a license outlicensed the product

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<v Speaker 1>so that there's another competitor that that is able to

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<v Speaker 1>market that product. Jury selection starts on Monday in the

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<v Speaker 1>Justice Department suit to stop the A T and T

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<v Speaker 1>time Warner merger, which we've talked about many times. Do

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<v Speaker 1>you see similarities in the remedies the antitrust of arment

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<v Speaker 1>wants there and in the buyer Monsanto merger. You know,

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<v Speaker 1>it's it's possible in a broad sense. And now, first

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<v Speaker 1>I should say there's no jury selection because that's just

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<v Speaker 1>a judge trial. So that's all right, How could I

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<v Speaker 1>forget that? But has a lot of personality. Yes, right,

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<v Speaker 1>they are starting on Monday. Um, I think opening arguments

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<v Speaker 1>aren't til Wednesday, but they'll they'll start with some preliminary

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<v Speaker 1>matters on Monday. The what I see here as similar

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<v Speaker 1>is that in the past, the Department of Justice has

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<v Speaker 1>been willing to accept conduct commitments from companies to fix

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<v Speaker 1>vertical problems, and we'll promise to license our technology, will

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<v Speaker 1>promise not to discriminate post merger things like that. That's

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<v Speaker 1>been pretty typical for a lot of vertical deals that

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<v Speaker 1>raise issues. But in a T and T, which is

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<v Speaker 1>purely a vertical deal, the Department of Justice said, no,

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<v Speaker 1>we don't like that kind of a commitment. We need structural,

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<v Speaker 1>we need assets divested. We have a number of reasons

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<v Speaker 1>we don't like a behavioral commitment. And it could be

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<v Speaker 1>that the same thing is happening with Buyer, that they

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<v Speaker 1>had vertical issues they thought they could resolve with the

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<v Speaker 1>behavioral commitment, and the Department of Justice is saying, no,

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<v Speaker 1>we needed a Let's just talk for just a little

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<v Speaker 1>bit about why the antitrust chief doesn't like the behavioral commitments,

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<v Speaker 1>why he doesn't like having to have someone monitor what's

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<v Speaker 1>going on. I think he has a couple of reasons.

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<v Speaker 1>That's one of them. He thinks the Department of Justice

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<v Speaker 1>then has to have oversight for many years over this

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<v Speaker 1>merged company, and that that isn't their role, that they're not,

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<v Speaker 1>that it doesn't work, that they aren't it's not their role,

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<v Speaker 1>and it's not the right thing for them to be doing,

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<v Speaker 1>and they shouldn't be regulating companies. So I think that's

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<v Speaker 1>one thing he sees there an enforcer rather than a regulator.

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<v Speaker 1>And I think the other thing he has said, although

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<v Speaker 1>I'm not sure if if the evidence bears this out,

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<v Speaker 1>is that they don't work that in the past, if

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<v Speaker 1>you look at behavioral commitments that have been made, that

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<v Speaker 1>they have hampered competition in some of these markets. Now

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<v Speaker 1>the deal has been the Now let's go back to

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<v Speaker 1>BUYERMN Santo merger has been before regulators for eighteen months.

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<v Speaker 1>How far is it from closing or is there a

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<v Speaker 1>possibility the Justice Department may file lawsuit to block this deal?

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<v Speaker 1>They certainly could, you know, if the companies cannot agree

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<v Speaker 1>to commitments, if what's being demanded is just too much

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<v Speaker 1>for them, it kills the economics of the deal, or

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<v Speaker 1>just unacceptable, then certainly they could abandon or they could

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<v Speaker 1>face the suit if they want to pursue it. Um.

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<v Speaker 1>It seems to me there still is a place for

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<v Speaker 1>an agreement to be reached, because the DJ is asking

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<v Speaker 1>for more and buyer has said it's willing to divest more.

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<v Speaker 1>So I feel like they may still be able to

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<v Speaker 1>reach an agreement here and it won't come to that.

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<v Speaker 1>They do have an end date in their agreement of

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<v Speaker 1>June four, and it looks like they're going to push

0:13:31.800 --> 0:13:34.280
<v Speaker 1>right up against that. But however, it's an agreement, so

0:13:34.360 --> 0:13:36.640
<v Speaker 1>the parties can agree to extend that if they need to.

0:13:37.000 --> 0:13:38.880
<v Speaker 1>If they're having constructive talks with the d o J,

0:13:39.040 --> 0:13:41.000
<v Speaker 1>they think they're going to resolve this, but it's gonna

0:13:41.000 --> 0:13:43.040
<v Speaker 1>go a little bit past that. I think they probably

0:13:43.080 --> 0:13:47.600
<v Speaker 1>extend it does the fact that buyer is based in Germany,

0:13:47.640 --> 0:13:51.800
<v Speaker 1>have any impact on this at this stage, I would

0:13:51.800 --> 0:13:54.760
<v Speaker 1>say not. Now. They did have to get through um

0:13:55.400 --> 0:13:58.440
<v Speaker 1>uh investigation by Syphius, the Committee for Foreign Investment in

0:13:58.440 --> 0:14:00.480
<v Speaker 1>the US that we've heard quite a lot of lately

0:14:00.559 --> 0:14:03.920
<v Speaker 1>in context of broad coming qualcom um. They also were

0:14:03.960 --> 0:14:06.480
<v Speaker 1>investigated by Syphia's actually for quite a long time, that

0:14:06.559 --> 0:14:08.640
<v Speaker 1>might have even been over a year, and I think

0:14:08.679 --> 0:14:11.200
<v Speaker 1>there was some pressure from some senators for Sifias to

0:14:11.280 --> 0:14:14.200
<v Speaker 1>put the you put some mitigation measures or stop this deal.

0:14:14.240 --> 0:14:16.360
<v Speaker 1>But they did clear Syphias, so the fact that it's

0:14:16.360 --> 0:14:19.440
<v Speaker 1>a foreign buyer doesn't plan anymore. Whoever thought we would

0:14:19.440 --> 0:14:23.560
<v Speaker 1>all know what Ciffius stands for about a minute here?

0:14:23.760 --> 0:14:26.480
<v Speaker 1>How long do you expect the time Warner trial to

0:14:26.520 --> 0:14:29.320
<v Speaker 1>go on? You know, it's funny because the judge had

0:14:29.360 --> 0:14:31.960
<v Speaker 1>anticipated three weeks, but he's now saying six to eight weeks.

0:14:32.000 --> 0:14:34.640
<v Speaker 1>And I'm not really sure what happened to double his

0:14:34.760 --> 0:14:37.360
<v Speaker 1>prediction on timing, But I think there are a lot

0:14:37.400 --> 0:14:40.280
<v Speaker 1>of witnesses and a lot of exhibits that are expected,

0:14:40.320 --> 0:14:43.440
<v Speaker 1>and it's complex, and there are a lot of star

0:14:43.600 --> 0:14:47.800
<v Speaker 1>lawyers on that case. So well, we'll look forward to

0:14:47.840 --> 0:14:50.680
<v Speaker 1>hearing more about that case, because it certainly is going

0:14:50.720 --> 0:14:54.520
<v Speaker 1>to be probably a standard for things to come. We'll

0:14:54.520 --> 0:14:57.440
<v Speaker 1>get an inkling of what the Antitrust Department is really

0:14:57.480 --> 0:15:00.560
<v Speaker 1>looking into, as you always help us to jin. That's

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<v Speaker 1>Jennifer Reachey's senior litigation analyst for Bloomberg Intelligence, and for

0:15:05.000 --> 0:15:07.440
<v Speaker 1>more of her analysis, you can go to be I

0:15:07.600 --> 0:15:10.640
<v Speaker 1>go on the Bloomberg Terminal. Thanks for listening to the

0:15:10.680 --> 0:15:14.040
<v Speaker 1>Bloomberg Law Podcast. You can subscribe and listen to the

0:15:14.080 --> 0:15:18.000
<v Speaker 1>show on Apple Podcasts, SoundCloud, and on Bloomberg dot com

0:15:18.040 --> 0:15:22.240
<v Speaker 1>slash podcast. I'm June Brasso. This is Bloomberg