WEBVTT - Weekend Law: Tariffs, Comey's Defense, Michael Jordan & NASCAR 0:00:02.759 --> 0:00:07.000 This is Bloomberg Law with June Grossel from Bloomberg Radio. 0:00:08.680 --> 0:00:13.920 Why do you think Presidents Clinton, Bush Obama have not. 0:00:15.280 --> 0:00:18.079 Used i EPA to impose tariffs? 0:00:18.560 --> 0:00:21.560 It's one of the most important cases of the term, 0:00:21.800 --> 0:00:26.800 a test of presidential power where President Trump's signature economic 0:00:26.920 --> 0:00:30.720 policy is at stake and a decision against him could 0:00:30.840 --> 0:00:34.600 mean refunding of more than one hundred billion dollars. And 0:00:34.720 --> 0:00:38.960 after nearly three hours of oral arguments on Wednesday, it 0:00:39.000 --> 0:00:44.599 appears that Supreme Court justices across the ideological spectrum are 0:00:44.760 --> 0:00:49.120 skeptical that Trump has the legal authority to impose billions 0:00:49.200 --> 0:00:53.360 of dollars in tariffs. Chief Justice John Roberts and Justice 0:00:53.400 --> 0:00:58.240 Sonya Sotomayor said, the tariffs are taxes, and the Constitution 0:00:58.520 --> 0:01:00.840 gives taxing power to Congress. 0:01:01.520 --> 0:01:05.160 It's a congressional power, not a presidential power to tax. 0:01:05.760 --> 0:01:08.200 And you want to say tariffs are not taxes, but 0:01:08.319 --> 0:01:13.320 that's exactly what they are, degenerating money from American citizens revenue. 0:01:14.080 --> 0:01:18.399 The vehicle is in position of taxes on Americans and 0:01:18.760 --> 0:01:20.880 that has always been the core power of Congress. 0:01:21.040 --> 0:01:25.679 Trump is arguing that the International Emergency Economic Powers Act, 0:01:25.800 --> 0:01:30.800 or AIPA gives him virtually unlimited powers to impose tariffs 0:01:30.800 --> 0:01:35.320 by executive order. But as several justices pointed out, the 0:01:35.360 --> 0:01:38.960 word tariffs is nowhere to be found in that law. 0:01:39.280 --> 0:01:43.880 Here are the Chief Justice and Justice Katanji Brown Jackson, Well, but. 0:01:43.840 --> 0:01:47.319 The exercise of the power is to impose tariffs, right, 0:01:47.960 --> 0:01:50.080 and the statute doesn't use the word tariffs. 0:01:50.480 --> 0:01:54.280 Your argument suggests that we should see the word imposed, 0:01:54.520 --> 0:01:58.560 the phrase impose tariffs in that same series of things 0:01:58.560 --> 0:02:01.240 that the president could do. We don't see that word, 0:02:01.320 --> 0:02:05.240 And instead you take regulate and say that must mean that. 0:02:06.000 --> 0:02:09.959 No other president has tried to impose tariffs under AJEPA, 0:02:10.320 --> 0:02:15.120 and Justice Neil Gorsuch, a Trump appointdee, expressed alarm at 0:02:15.160 --> 0:02:20.120 the idea that Congress could delegate such seemingly unlimited power 0:02:20.320 --> 0:02:21.240 to the president. 0:02:22.320 --> 0:02:25.320 Congress, as a practical matter, can't get this power back 0:02:25.440 --> 0:02:27.639 once it's handed it over to the President's a one 0:02:27.680 --> 0:02:32.600 way ratchet toward the gradual but continual accretion of power 0:02:33.240 --> 0:02:36.400 in the executive branch and away from the people's elected representative. 0:02:36.880 --> 0:02:40.079 All three lower courts that ruled on the issue found 0:02:40.080 --> 0:02:44.079 the tariffs to be unlawful. My guest is Timothy Bright Bell, 0:02:44.440 --> 0:02:47.720 partner and co chair of the International Trade practice at 0:02:47.760 --> 0:02:51.919 Wiley Rhin. Tim tell us what's at stake in this case. 0:02:52.720 --> 0:02:58.800 This case involves the centerpiece of President Trump's economic agenda. 0:02:59.120 --> 0:03:01.640 Is the biggest trade case the Supreme Court has ever heard, 0:03:01.960 --> 0:03:06.320 and it goes straight to the key constitutional issue of 0:03:06.400 --> 0:03:10.040 who has the power to impose tariffs, the US Congress 0:03:10.440 --> 0:03:13.920 or the president. President Trump says the law that he used, 0:03:14.200 --> 0:03:18.400 the International Emergency Economic Powers Act, gives him the power 0:03:18.639 --> 0:03:22.280 to regulate imports, and that that includes the power to 0:03:22.400 --> 0:03:28.240 impose tariffs, including ventanyl tariffs on China, Canada, and Mexico, 0:03:28.639 --> 0:03:32.200 and reciprocal economic tariffs on almost all countries. Whereas the 0:03:32.200 --> 0:03:34.840 plaintiffs in this case say that Congress has that power 0:03:35.000 --> 0:03:38.680 and cannot delegate that power, and that AEPA, which has 0:03:38.760 --> 0:03:42.360 never before been used to impose tariffs, does not include 0:03:42.360 --> 0:03:45.560 that power and afford So that is what is at stake. 0:03:45.720 --> 0:03:49.800 And of course the tariffs under AEPA have led to 0:03:50.040 --> 0:03:53.440 collection of hundreds of billions of dollars of tariffs already, 0:03:53.880 --> 0:03:57.240 so it's very high economic stakes for the companies and 0:03:57.320 --> 0:03:59.240 industries that it paid those tariffs as well. 0:04:00.000 --> 0:04:04.120 There's always a textual analysis these days, and many of 0:04:04.160 --> 0:04:08.160 the justices were concerned that the text of the statute 0:04:08.600 --> 0:04:12.600 doesn't mention the word tariffs at all exactly. 0:04:12.760 --> 0:04:16.680 The argument focused quite heavily on this law used by 0:04:16.680 --> 0:04:20.560 President Trump AIPA and whether that law, which gives the 0:04:20.560 --> 0:04:25.240 president the power to regulate imports, also includes the power 0:04:25.279 --> 0:04:28.560 to impose tariffs. That really dominated most of the hearing, 0:04:28.920 --> 0:04:32.960 and the justices asked very difficult questions on both sides. 0:04:33.160 --> 0:04:37.560 The administration said that the ability to impose tariffs is 0:04:37.600 --> 0:04:41.719 a core application of the ability to regulate imports in 0:04:41.760 --> 0:04:45.960 a historical context, said that, of course, the power to 0:04:46.040 --> 0:04:50.359 regulate imports would be read to include tariffs because tariffs 0:04:50.360 --> 0:04:53.239 have been used throughout our country's history. On the other hand, 0:04:53.640 --> 0:04:56.719 several justices were skeptical of that, and the plaintiffs in 0:04:56.760 --> 0:05:01.919 this case said that when the delegation and includes tariff authority, 0:05:02.320 --> 0:05:05.920 there is always specific language to that effect, and that 0:05:06.320 --> 0:05:10.960 there are always conditions and tests and agency decisions that 0:05:11.040 --> 0:05:14.000 have to go into that tariff power. So there was 0:05:14.040 --> 0:05:16.640 a good amount of the argument focused on those issues, 0:05:16.800 --> 0:05:20.279 and again, whether power to regulate imports includes the power 0:05:20.320 --> 0:05:21.880 to impose tariffs, and. 0:05:21.800 --> 0:05:24.960 What did you think about the Solicitor General's argument that 0:05:25.000 --> 0:05:29.360 the Trading with the Enemy Act of nineteen seventeen gives 0:05:29.360 --> 0:05:32.480 the president authority to impose these tariffs. 0:05:33.200 --> 0:05:36.560 The Solicitor General argued, yes, that the Trading with the 0:05:36.680 --> 0:05:41.040 Enemy Act was used to impose tariffs in a prior 0:05:41.080 --> 0:05:44.760 situation by President Nixon, and that there's no reason to 0:05:44.800 --> 0:05:48.520 think that anything had changed when AIPA had passed. On 0:05:48.560 --> 0:05:51.680 the other hand, the plaintiffs had a response to that 0:05:51.960 --> 0:05:56.719 in terms of the fact again that when tariffs are involved, 0:05:57.080 --> 0:05:59.599 there are always conditions on their use, there are always 0:05:59.600 --> 0:06:03.560 specific procedures, and also the fact that the reality is 0:06:03.600 --> 0:06:08.120 that no other president in fifty years has used AIPA 0:06:08.160 --> 0:06:09.240 to impose tariffs. 0:06:09.520 --> 0:06:14.000 The Major Questions doctrine came up several times during the arguments. 0:06:14.400 --> 0:06:18.360 It basically says that when the executive branch takes an 0:06:18.440 --> 0:06:23.880 action with major political or economic significance, Congress has to 0:06:24.040 --> 0:06:28.560 have expressly authorized it, and the Chief Justice made it 0:06:28.720 --> 0:06:33.640 fairly clear that he thought the Major Questions doctrine applies here. 0:06:34.279 --> 0:06:37.600 Yes, So the question here is, does the Major Questions 0:06:37.600 --> 0:06:41.920 doctrine require a clear statement in AIPA that it includes 0:06:42.000 --> 0:06:46.680 the power to impose tariffs, and this Court has not 0:06:46.839 --> 0:06:52.039 hesitated to start using that doctrine more broadly. But I 0:06:52.080 --> 0:06:56.520 think you're right that the justices had some concerns about 0:06:56.600 --> 0:07:00.360 pursuing it in this venue. And again, the question comes 0:07:00.400 --> 0:07:04.719 to is the power to tariff implied in the power 0:07:04.760 --> 0:07:08.640 to regulate imports or if it's not. Was this a 0:07:08.760 --> 0:07:13.440 question that Congress was required to state clearly that tariffs 0:07:13.440 --> 0:07:17.240 were a part of what was envisioned by the new law. 0:07:17.760 --> 0:07:22.000 The Conservatives us the Major Questions doctrine to block several 0:07:22.040 --> 0:07:27.200 of President Biden's initiatives, like his student loan forgiveness program. 0:07:27.760 --> 0:07:31.440 If they allow Trump to impose these tariffs, do you 0:07:31.480 --> 0:07:34.960 think they'll have to explain why the Major Questions doctrine 0:07:34.960 --> 0:07:37.840 applied to Biden but not Trump. 0:07:38.160 --> 0:07:40.680 I think it's an interesting question whether they'll go there 0:07:40.760 --> 0:07:43.080 or whether they will just focus on the language of 0:07:43.120 --> 0:07:46.160 AIBA and this issue of whether the power to regulate 0:07:46.200 --> 0:07:50.240 imports includes the power to tariff, and I think several 0:07:50.640 --> 0:07:53.840 justices went down that road. I don't think just because 0:07:54.240 --> 0:07:56.880 these doctrines have been used in other cases, such as 0:07:56.880 --> 0:08:00.600 the Biden student bond forgiveness case doesn't necessary mean that 0:08:00.640 --> 0:08:03.520 they will have to address it in this opinion if 0:08:03.520 --> 0:08:06.800 they have other bases for finding that the tariffs were 0:08:07.080 --> 0:08:09.600 legal or improper in any way. 0:08:10.320 --> 0:08:16.360 And Justice Gorsuch in particular expressed alarm about the seeming 0:08:16.480 --> 0:08:20.480 lack of limitations on the powers the President was claiming here. 0:08:21.600 --> 0:08:25.600 Justice of course the hypothetical of if Congress can delegate 0:08:25.640 --> 0:08:30.080 the tariff authority, what would prohibit Congress from delegating everything, 0:08:30.240 --> 0:08:33.480 including the power to declare war, which is clearly given 0:08:33.520 --> 0:08:37.319 in the Constitution to Congress. And so that was a 0:08:37.440 --> 0:08:42.720 very interesting discussion. I'm certainly raising some concerns about the limits, 0:08:43.000 --> 0:08:47.120 if any, on the authority that the government was claiming. 0:08:47.200 --> 0:08:49.360 So where do you think the justices are going to 0:08:49.360 --> 0:08:50.079 come out here? 0:08:50.760 --> 0:08:54.040 Well, I'm not in the business of making predictions. Generally. 0:08:54.280 --> 0:08:57.040 My own personal view is that the Court's three Democratic 0:08:57.200 --> 0:09:00.680 justices probably vote against these tariffs. And the question is 0:09:00.679 --> 0:09:04.000 whether some of the majority of the Court have similar 0:09:04.040 --> 0:09:07.160 concerns about the president's use of this law. And I 0:09:07.280 --> 0:09:10.560 do think that it's still a very close decision. It 0:09:10.600 --> 0:09:13.839 could go either way. I thought Chief Justice Roberts and 0:09:14.000 --> 0:09:18.600 Justice Barrett and Justice Gorsich were perhaps more skeptical of 0:09:18.640 --> 0:09:23.200 the president's tariff authority under a than the other justices. Yues. 0:09:23.320 --> 0:09:26.400 The only other point I would make is, although it 0:09:26.559 --> 0:09:29.679 was discussed in the oral argument, I have a hard 0:09:29.760 --> 0:09:33.439 time seeing this court making a split decision that some 0:09:33.520 --> 0:09:36.240 of President Trump's tariffs are acceptable but others are not. 0:09:37.280 --> 0:09:40.960 So if the Court does rule against Trump, what happens 0:09:41.000 --> 0:09:44.120 next as far as his tariffs are concerned. 0:09:43.880 --> 0:09:46.360 Well, two things would happen. First of all, there would 0:09:46.400 --> 0:09:49.920 likely be some sort of a refund process for importers 0:09:49.960 --> 0:09:52.680 that paid the tariffs during this time, and there is 0:09:52.720 --> 0:09:55.560 some precedent for that before That was discussed during the 0:09:55.720 --> 0:09:58.680 oral argument a situation where the court struck down a 0:09:58.760 --> 0:10:02.200 harbor maintenance tax and there was basically a process where 0:10:02.400 --> 0:10:05.640 companies could file claims for the amount of the tax 0:10:05.679 --> 0:10:08.720 that they paid. So Justice Barrettz was concerned that this 0:10:08.720 --> 0:10:11.320 could be a mess and could be very unwieldy. I 0:10:11.320 --> 0:10:13.920 guess the more important point is what will the president 0:10:13.960 --> 0:10:17.280 do going forward? And I think it's clear that tariffs 0:10:17.320 --> 0:10:21.640 are still a cornerstone of this administration's economic policy. And 0:10:21.760 --> 0:10:26.280 if the Court says that the President cannot use AIPA, 0:10:26.440 --> 0:10:30.360 the President will likely pivot to one of several other 0:10:30.520 --> 0:10:34.040 trade tools that are available, and the Court mentioned many 0:10:34.080 --> 0:10:38.280 of these, including Section one twenty two, the section two 0:10:38.320 --> 0:10:41.719 thirty two, the National Security Law, which the administration has 0:10:41.760 --> 0:10:44.520 already made quite a bit of use of in this administration, 0:10:45.040 --> 0:10:48.000 Section three zero one, and so forth. The limit on 0:10:48.160 --> 0:10:51.960 those laws is that they do require studies or actions 0:10:52.000 --> 0:10:55.480 by other agencies. So Section two thirty two requires a 0:10:55.520 --> 0:10:59.000 study and a report by the Commerce Department and consultation 0:10:59.120 --> 0:11:03.479 with the Defense Department in order to decide that imports 0:11:03.520 --> 0:11:08.920 of a certain product like semiconductors or pharmaceuticals are a 0:11:09.040 --> 0:11:13.400 threat to national security. Similarly, Section three oh one, which 0:11:13.559 --> 0:11:17.360 was the law used to impose tariffs on China during 0:11:17.360 --> 0:11:22.079 the first Trump administration, also requires a detailed study by 0:11:22.080 --> 0:11:26.439 the US Trade Representative with public inputs. So those tools, 0:11:26.600 --> 0:11:29.480 for the most part, cannot be used as quickly as 0:11:29.600 --> 0:11:31.520 AIPA was used by President Trump. 0:11:32.000 --> 0:11:35.160 This case was fast tracked by the court so a 0:11:35.240 --> 0:11:38.520 ruling could come as quickly as the end of the year. 0:11:38.880 --> 0:11:41.800 Thanks so much for joining me, tim that's Timothy Bright, 0:11:41.880 --> 0:11:45.040 Bill of Willie Rhin Coming up next to the Bloomberg 0:11:45.120 --> 0:11:49.080 Law show. Prosecutors get us scolding from the judge in 0:11:49.120 --> 0:11:53.240 the case against former FBI director James Comey. I'm June 0:11:53.280 --> 0:11:55.439 Grosso and you're listening to Bloomberg. 0:11:55.760 --> 0:11:59.400 My heart is broken for the Department of Justice, but 0:11:59.480 --> 0:12:02.280 I have great confidence in the federal judicial system. 0:12:02.720 --> 0:12:05.200 I'm innocent, so let's have a trial. 0:12:06.040 --> 0:12:10.120 But will the criminal case against former FBI director James 0:12:10.160 --> 0:12:14.760 Comy even get to trial. Comy is pleaded not guilty 0:12:14.840 --> 0:12:18.040 to the charges of lying to Congress in twenty twenty, 0:12:18.520 --> 0:12:21.880 and his defense has filed several motions to get the 0:12:21.920 --> 0:12:26.760 case dismissed before trial. They include emotion to dismiss because 0:12:26.800 --> 0:12:30.720 the government is engaged in a vindictive and selective prosecution, 0:12:31.280 --> 0:12:36.280 emotion to dismiss because the interim us attorney was appointed illegally, 0:12:36.760 --> 0:12:41.840 and emotion to dismiss because Comy's testimony was literally true. 0:12:42.400 --> 0:12:47.960 And on Wednesday, a clearly exasperated judge scolded the prosecutors 0:12:48.120 --> 0:12:53.199 for the Justice Department's indict first and investigate second approach 0:12:53.280 --> 0:12:58.000 to the case. Magistrate Judge William Fitzpatrick then ordered the 0:12:58.080 --> 0:13:01.880 prosecutors to turn over to the defense a raft of 0:13:01.960 --> 0:13:07.439 potential evidence, including full transcripts of the grand jury proceedings. 0:13:08.040 --> 0:13:11.720 My guest is former federal prosecutor Robert Mintz, a partner 0:13:11.840 --> 0:13:15.240 maccarter and English Bob. How unusual is it for a 0:13:15.360 --> 0:13:19.040 judge to make these kinds of remarks that the Justice 0:13:19.080 --> 0:13:23.760 Department here indicted first, an investigated second, and that the 0:13:23.800 --> 0:13:26.360 prosecutors may have mishandled some evidence. 0:13:27.280 --> 0:13:30.280 Well, it's very unusual for the judge to comment on 0:13:30.400 --> 0:13:34.000 the prosecutor's conduct and to comment on the evidence of 0:13:34.040 --> 0:13:37.480 the case this early in the process. And it suggests 0:13:37.480 --> 0:13:40.120 that the court, at least this judge, of the magistrate 0:13:40.200 --> 0:13:44.120 judge who was handling this argument, has some serious questions 0:13:44.200 --> 0:13:47.960 about the procedures used by prosecutors and whether or not 0:13:48.280 --> 0:13:51.880 they had really put together the evidence necessary to pursue 0:13:51.920 --> 0:13:54.880 this case. And the warning that he gave prosecutors with 0:13:54.920 --> 0:13:59.400 regard to mishandling evidence turns on this whole question of 0:13:59.559 --> 0:14:03.080 evidence seized from sirch warrants way back in twenty nineteen 0:14:03.520 --> 0:14:07.880 and twenty twenty in an unrelated investigation, And there's going 0:14:07.920 --> 0:14:10.360 to be an inquiry now into whether or not the 0:14:10.400 --> 0:14:15.000 information that prosecutor seesed many years ago is being properly 0:14:15.200 --> 0:14:17.240 utilized in this prosecution. 0:14:17.040 --> 0:14:20.560 And that evidence was seized from Comy's friend and former 0:14:20.720 --> 0:14:25.640 attorney Daniel Richmond as part of an internal investigation of 0:14:25.760 --> 0:14:29.280 leaks in the Russia case during the first Trump administration. 0:14:29.920 --> 0:14:33.520 Let's talk about the judge ordering the full grand jury 0:14:33.640 --> 0:14:37.200 transcripts to be handed over. That could be a treasure 0:14:37.280 --> 0:14:40.960 trove for the defense, which claims that there were severe 0:14:41.120 --> 0:14:45.880 and pervasive irregularities in the presentation to the grand jury 0:14:46.400 --> 0:14:51.720 by the newly installed interim US Attorney Lindsey Halligan, who 0:14:51.800 --> 0:14:54.200 had no experience as a prosecutor. 0:14:54.960 --> 0:14:59.240 It's not unusual for transcripts of witnesses who might appear 0:14:59.280 --> 0:15:01.200 before the grand jury to be turned over. 0:15:01.080 --> 0:15:03.160 To the defense. In fact, it's required. 0:15:03.520 --> 0:15:08.280 Prosecutors generally prefer not to have witnesses who are favorable 0:15:08.320 --> 0:15:12.240 to the government testify in the grand jury because then 0:15:12.360 --> 0:15:15.120 those statements and that testimony has to be turned over 0:15:15.160 --> 0:15:18.520 to the defense, and it provides defense lawyers fodder for 0:15:18.640 --> 0:15:22.600 cross examination if the witness testifies at trial in any 0:15:22.640 --> 0:15:26.320 way differently or inconsistently with the testimony they gave before 0:15:26.360 --> 0:15:27.240 the grand jury. 0:15:27.520 --> 0:15:29.800 But what's going to be interesting here for the. 0:15:29.760 --> 0:15:33.160 Defense team is not so much what was said from 0:15:33.200 --> 0:15:35.960 the witness, who in this case was an FBI agent 0:15:36.080 --> 0:15:39.640 who is simply summarizing the case, but the questions that 0:15:39.720 --> 0:15:42.920 were posed by the prosecutor in this case, the interim 0:15:43.000 --> 0:15:46.240 US attorney Lindsay Halligan, how she presented the case to 0:15:46.280 --> 0:15:49.560 the grand jurors, how she presented the law to the 0:15:49.600 --> 0:15:53.440 grand jurors, how she may have answered any questions that 0:15:53.520 --> 0:15:56.960 grand jurors raised. Because what happens during the grand jury 0:15:57.000 --> 0:15:59.920 process is that there's a grand jury foreman and the 0:16:00.000 --> 0:16:03.680 grand jury formant has a conversation, often when the prosecutor 0:16:03.880 --> 0:16:06.280 is outside of the grand jury room, and then the 0:16:06.320 --> 0:16:09.080 foreman will ask questions on behalf of all the grand jurors. 0:16:09.240 --> 0:16:12.840 That happens fairly frequently, and in this case, we know 0:16:13.080 --> 0:16:16.640 that the grand jurors decided not to return an indictment 0:16:16.720 --> 0:16:19.760 on one of the three counts, So there's no question 0:16:19.840 --> 0:16:23.240 that there was some significant conversation and debate going on 0:16:23.640 --> 0:16:26.920 among the grand jurors and probably a number of questions 0:16:26.920 --> 0:16:29.760 that were posed to the prosecutor. The defense team is 0:16:29.800 --> 0:16:33.560 going to be very interested in seeing how Lindsey Halligan 0:16:33.720 --> 0:16:36.680 answered those questions, and they're going to be looking to 0:16:36.760 --> 0:16:40.000 see whether there's anything she did that they will argue 0:16:40.240 --> 0:16:43.080 was improper in front of that grand jury that could 0:16:43.120 --> 0:16:46.640 possibly taint the entire indictment. And if they can ultimately 0:16:46.680 --> 0:16:49.920 convince the judge that the irregularities are serious enough so 0:16:50.040 --> 0:16:52.840 that it taints the entire grand jury process and that 0:16:52.960 --> 0:16:55.920 indictment is thrown out, they may well have won their 0:16:56.000 --> 0:16:59.440 case because the station of limitations, I'm sure they will argue, 0:16:59.640 --> 0:17:00.720 has now expired. 0:17:01.400 --> 0:17:04.760 Apparently the government is concerned about turning over the grand 0:17:04.800 --> 0:17:08.280 jury transcripts because they agreed to turn over the evidence 0:17:08.320 --> 0:17:12.440 ceased from Richmond, but they're appealing the magistrate judges ordered 0:17:12.480 --> 0:17:15.280 to turn over the grand jury transcripts. 0:17:15.640 --> 0:17:19.160 Well, that's not surprising that they are appealing that, because again, 0:17:19.200 --> 0:17:24.160 it's so unusual for defense lawyers to get the actual presentation, 0:17:24.720 --> 0:17:27.479 and it's quite possible that there were some statements that 0:17:27.520 --> 0:17:31.040 were made that could be problematic for prosecutors. So they 0:17:31.040 --> 0:17:35.120 have now appealed the magistrate judge's decision that's requiring them 0:17:35.160 --> 0:17:38.080 to turn over the grand jury material to the district 0:17:38.119 --> 0:17:42.240 court judge, and they're basically arguing that the magistrate judge 0:17:42.280 --> 0:17:46.399 exceeded his authority in ordering the grand jury transcripts to 0:17:46.480 --> 0:17:49.480 be turned over. They are arguing that the defense team 0:17:49.520 --> 0:17:52.760 had already fought in motion to seek to get access 0:17:52.800 --> 0:17:56.240 to the grand jury presentation, and that that was pending 0:17:56.280 --> 0:17:59.880 before the District Court judge, and that the magistrate judge 0:18:00.240 --> 0:18:03.920 was at that point only appointed to deal with a 0:18:04.000 --> 0:18:07.919 question of potential privileged materials, and in requiring that the 0:18:07.960 --> 0:18:11.560 grand jury material be turned over, he went beyond the 0:18:11.680 --> 0:18:15.040 scope of the authority that was delegated to him by 0:18:15.080 --> 0:18:17.000 the District Court Judge. 0:18:16.600 --> 0:18:19.480 Bob in terms of the motion to dismiss the indictment 0:18:19.800 --> 0:18:23.199 because Lindsay Halligan was illegally serving when she brought the 0:18:23.359 --> 0:18:28.399 charges against Comy. US Attorney General Pam Bondy filed a 0:18:28.480 --> 0:18:34.399 court document on Monday saying that she had retroactively given 0:18:34.440 --> 0:18:39.239 Halligan the additional title of Special Attorney. I mean, I 0:18:39.280 --> 0:18:41.600 too would like to go back in time and correct 0:18:41.600 --> 0:18:44.400 some of my mistakes. But will a court allow her 0:18:44.440 --> 0:18:48.399 to go back to September and basically say, oh, I 0:18:48.480 --> 0:18:49.920 meant to give her this title too. 0:18:50.520 --> 0:18:53.520 I think the argument by the Attorney General that she 0:18:53.640 --> 0:18:58.520 can retroactively give Eastern Virginia's top prosecutors an extra title 0:18:58.760 --> 0:19:01.760 in order to try to defend against the claims that 0:19:01.800 --> 0:19:05.920 Halligan was improperly appointed is probably not going to gain 0:19:05.960 --> 0:19:07.440 a lot of traction with the courts. 0:19:07.600 --> 0:19:09.240 Typically, the courts will look. 0:19:09.080 --> 0:19:11.720 At the facts at the time and whether or not 0:19:11.880 --> 0:19:15.480 the appointment was proper under the rules, under the regulations, 0:19:15.520 --> 0:19:16.919 under the statues. 0:19:16.400 --> 0:19:17.919 At the time of the appointment. 0:19:18.280 --> 0:19:20.560 And I think it's an uphill battle to argue that 0:19:20.640 --> 0:19:23.199 even if there was a deficiency, then that can be 0:19:23.320 --> 0:19:25.760 remedied retroactively by an appointment. 0:19:26.320 --> 0:19:29.199 In one of the motions to dismiss, the defense claims 0:19:29.240 --> 0:19:33.360 the indictment is hopelessly vague and defective on its face, 0:19:33.840 --> 0:19:39.119 that Senator ted Cruz's questions to Comy were fundamentally ambiguous 0:19:39.400 --> 0:19:43.879 and that Comy's response was literally true. Let's listen to 0:19:43.920 --> 0:19:46.280 the exchange between Cruz and Komy. 0:19:46.680 --> 0:19:50.119 What mister McKay is saying and what you testify to 0:19:50.160 --> 0:19:52.920 this committee cannot both be true. One or the other 0:19:53.080 --> 0:19:55.480 is false. Who's telling the truth? 0:19:56.680 --> 0:19:58.440 I just can only speak to my testimony. 0:19:58.440 --> 0:20:01.040 I stand by what the test money you summarized that 0:20:01.080 --> 0:20:02.840 I gave in May of twenty seventeen. 0:20:03.080 --> 0:20:06.600 So the defense wants the prosecution to tell them which 0:20:06.640 --> 0:20:10.320 of Komy's statements are you claiming were false? 0:20:11.280 --> 0:20:16.320 Yeah, And that's exactly why false statement prosecutions are extremely difficult, 0:20:16.359 --> 0:20:19.439 because you have to parse through exactly what was the 0:20:19.560 --> 0:20:23.760 question and what was the answer and demonstrate that at 0:20:23.760 --> 0:20:26.359 the time the answer was given, it was not only false, 0:20:26.359 --> 0:20:29.320 but it was intentionally false, and that it was false 0:20:29.400 --> 0:20:33.560 about something that was material. So in this case, the 0:20:33.600 --> 0:20:36.880 prosecution is based on hearing before the Senate Judiciary Committee 0:20:36.920 --> 0:20:40.040 on September thirtieth, twenty twenty, and at that hearing, Senator 0:20:40.080 --> 0:20:43.879 Ted Cruz asked mister Comy whether he had authorized someone 0:20:43.880 --> 0:20:47.080 at the FBI to be an anonymous. 0:20:46.400 --> 0:20:47.840 Source in news reports. 0:20:48.240 --> 0:20:50.800 The indictment says that mister Comy misled the committee by 0:20:50.840 --> 0:20:53.600 saying that he had not done so. Now, Comy's lawyers 0:20:53.600 --> 0:20:56.560 have attacked that indictment by saying that the questioning by 0:20:56.560 --> 0:21:01.040 mister Cruz was vague and imprecise, and point out that 0:21:01.080 --> 0:21:04.320 at the time that Senator Cruz was questioning mister Comy 0:21:04.320 --> 0:21:07.880 about whether he had authorized anybody to leak information, that 0:21:07.920 --> 0:21:11.440 Senator Cruz was referring to Andrew McCabe, who once served 0:21:11.680 --> 0:21:14.480 as mister Comy's deputy at the FBI, and was not 0:21:14.600 --> 0:21:18.320 referring to Daniel Richman, who had been a former FBI 0:21:18.400 --> 0:21:21.840 employee and later became the attorney for James Comy. So 0:21:21.920 --> 0:21:25.320 they're arguing that the indictment is defective on its face, 0:21:25.800 --> 0:21:28.359 because in order to prove that mister Comy lied, you 0:21:28.440 --> 0:21:31.040 have to show that there was a clear question and 0:21:31.040 --> 0:21:34.200 that he gave a clearly false, a knowingly false answer 0:21:34.240 --> 0:21:37.040 to it, and that he had an intention to mislead 0:21:37.080 --> 0:21:40.040 the committee, and that the information he provided that was 0:21:40.119 --> 0:21:43.840 false was material, and that this somehow obstructed the relevant 0:21:43.880 --> 0:21:47.640 congressional proceeding. They say that that information is not contained 0:21:47.640 --> 0:21:50.000 in the indictment, and one of their emotions is the 0:21:50.119 --> 0:21:53.119 requirement that the government provide that information. 0:21:53.520 --> 0:21:55.560 So what you have here basically. 0:21:55.320 --> 0:21:59.040 Is an argument that the indictment is defective on its face. So, 0:21:59.080 --> 0:22:01.240 in other words, it's not had an argument that the 0:22:01.280 --> 0:22:04.320 government has its facts throng, because a factual dispute is 0:22:04.320 --> 0:22:05.120 something that has to. 0:22:05.080 --> 0:22:07.199 Be resolved by a jury at trial. 0:22:07.600 --> 0:22:10.280 They are arguing that this is a decision that really 0:22:10.320 --> 0:22:13.359 needs to be made by the judge because on its face, 0:22:13.960 --> 0:22:17.840 the government is unable to prove the charges. The allegations 0:22:17.840 --> 0:22:21.320 in the indictment simply are not enough to sustain a 0:22:21.440 --> 0:22:24.760 valid conviction, and that's why they're filing this whole slew 0:22:24.800 --> 0:22:28.040 of arguments to try to get this case dismissed before 0:22:28.040 --> 0:22:29.080 it ever goes to trial. 0:22:29.760 --> 0:22:33.120 And prosecutors would not be able to bring the charges 0:22:33.200 --> 0:22:37.760 again because the statute of limitations has run out, and 0:22:37.840 --> 0:22:42.880 supposedly that's why the indictment was rushed through. Comy's indictment 0:22:42.960 --> 0:22:47.320 came just five days after President Trump had demanded on 0:22:47.440 --> 0:22:53.000 truth Social that Attorney General Pam Bondi bring charges against Komy, 0:22:53.440 --> 0:22:57.280 New York Attorney General Letitia James, and Senator Adam Schiff. 0:22:57.800 --> 0:23:01.399 So legal experts were talking about as selective and vindictive 0:23:01.520 --> 0:23:06.040 prosecution motion even before the defense made that motion in 0:23:06.080 --> 0:23:11.560 the case. Comy's motion papers include a sixty page long 0:23:11.720 --> 0:23:16.920 list of links that detail Trump's negative comments about him 0:23:16.960 --> 0:23:21.240 over the years. How strong is their vindictive prosecution motion? 0:23:21.840 --> 0:23:24.360 I know it's very hard to get a case dismissed 0:23:24.560 --> 0:23:27.400 on those grounds, That's exactly right. 0:23:27.440 --> 0:23:29.920 I mean, motions for vindictive prosecution. 0:23:29.560 --> 0:23:31.080 Are exceedingly hard to win. 0:23:31.480 --> 0:23:35.520 They require defendants to prove the prosecutors have displayed animus 0:23:35.520 --> 0:23:38.840 towards them while they were seeking to exercise their rights, 0:23:39.119 --> 0:23:42.120 and that the charges never would have been brought except 0:23:42.119 --> 0:23:45.600 for that animus. Now, prosecutors have argued in response that 0:23:45.640 --> 0:23:50.360 the comments made by President Trump to prosecute mister Komy 0:23:50.640 --> 0:23:54.280 were only suggesting that if mister Komy committed a crime, 0:23:54.400 --> 0:23:56.440 that they ought to prosecute him, and that he was 0:23:56.480 --> 0:23:59.960 not directing the Department of Justice to prosecute mister Komey 0:24:00.359 --> 0:24:02.720 regardless of whether or not a crime was committed. We'll 0:24:02.760 --> 0:24:04.560 have to see how the judge handles that at the 0:24:04.640 --> 0:24:07.840 end of the day. But the vindictive prosecution standard is 0:24:07.920 --> 0:24:11.040 fairly high and that may be a difficult argument for 0:24:11.080 --> 0:24:12.159 the defense to prevail on. 0:24:12.800 --> 0:24:15.280 We'll see how it goes at the hearings next week. 0:24:15.720 --> 0:24:19.840 Thanks for a great conversation, Bob. That's former federal prosecutor 0:24:19.960 --> 0:24:23.680 Robert Mintz of McCarter and English. Coming up next on 0:24:23.720 --> 0:24:28.000 the Bloomberg Law Show, Michael Jordan's racing team scores a 0:24:28.080 --> 0:24:32.680 key victory in court in its antitrust lawsuit against NASCAR. 0:24:33.280 --> 0:24:36.040