1 00:00:03,200 --> 00:00:07,960 Speaker 1: This is bloombird law with June Brusso from bloombird radio. 2 00:00:10,880 --> 00:00:12,880 Speaker 1: If you're the president of the United States, you can 3 00:00:12,920 --> 00:00:16,160 Speaker 1: declass if I just by saying stick class even by 4 00:00:16,200 --> 00:00:19,880 Speaker 1: thinking about it. Despite what former President Donald Trump said 5 00:00:19,880 --> 00:00:22,919 Speaker 1: on Fox News this week, it's clear that not even 6 00:00:22,960 --> 00:00:27,640 Speaker 1: a president can declassify documents just by saying it, certainly 7 00:00:27,680 --> 00:00:30,400 Speaker 1: not by thinking it, and the Eleventh Circuit Court of 8 00:00:30,440 --> 00:00:34,880 Speaker 1: Appeals definitively shot down most of trump's other arguments about 9 00:00:34,920 --> 00:00:38,960 Speaker 1: the classified documents seized by the FBI from Maral Lago. 10 00:00:39,440 --> 00:00:43,120 Speaker 1: My guest is national security expert Bradley Moss, a partner 11 00:00:43,280 --> 00:00:47,240 Speaker 1: Mark Z Brad. Let's start with the basic question. What 12 00:00:47,240 --> 00:00:51,200 Speaker 1: would trump have to have done to declassify a document? 13 00:00:51,920 --> 00:00:54,560 Speaker 1: So this is this is a bit of a philosophical 14 00:00:54,600 --> 00:00:57,320 Speaker 1: question at some part. In theory, up to the moment 15 00:00:57,560 --> 00:01:00,440 Speaker 1: Joe Biden took the oath of office, Donald Trump could 16 00:01:00,440 --> 00:01:04,240 Speaker 1: at any time have literally just stated that document in 17 00:01:04,280 --> 00:01:07,000 Speaker 1: front of me that says we plan to attack Iran, 18 00:01:07,440 --> 00:01:12,160 Speaker 1: I'm declassifying it and the document would be considered, quote unquote, declassified. 19 00:01:12,360 --> 00:01:15,559 Speaker 1: But there are two problems here. One all the case 20 00:01:15,640 --> 00:01:18,720 Speaker 1: law from the trump era. said that that declassification doesn't 21 00:01:18,720 --> 00:01:22,800 Speaker 1: take effect as a subsequent follow up bureacratic steps. Specifically, 22 00:01:22,959 --> 00:01:25,240 Speaker 1: it has to be notification to the agency that provided it, 23 00:01:25,560 --> 00:01:30,080 Speaker 1: the documents have to be the marked, etcetera, etcetera. More importantly, 24 00:01:30,120 --> 00:01:33,360 Speaker 1: for purposes of a criminal inquiry here, even if he 25 00:01:33,480 --> 00:01:37,880 Speaker 1: declassified the document, the markings are still there and until 26 00:01:37,959 --> 00:01:42,240 Speaker 1: the markings have been properly removed, the document has to 27 00:01:42,280 --> 00:01:45,880 Speaker 1: be treated by any individual who sees it as if 28 00:01:45,880 --> 00:01:49,560 Speaker 1: it is still classified. That's where Donald Trump's problem comes 29 00:01:49,560 --> 00:01:52,840 Speaker 1: into play here. That's why the search warrant didn't ask 30 00:01:52,880 --> 00:01:56,040 Speaker 1: for classified records. It asked for documents with classification marketing, 31 00:01:56,320 --> 00:01:58,760 Speaker 1: because that becomes became the problem that if he took 32 00:01:58,840 --> 00:02:02,320 Speaker 1: them without having proper early had them de marked, there 33 00:02:02,400 --> 00:02:05,960 Speaker 1: still have to be treated as if they're classified. Trump 34 00:02:06,000 --> 00:02:10,720 Speaker 1: many times, including this week on Fox, said he declassified 35 00:02:10,800 --> 00:02:14,360 Speaker 1: these documents. There can be a process, but that doesn't 36 00:02:14,400 --> 00:02:16,720 Speaker 1: have to be you know, the president, you make that decision. 37 00:02:17,160 --> 00:02:20,519 Speaker 1: So when you send it it's the Classif we I 38 00:02:20,720 --> 00:02:25,440 Speaker 1: declassified everything. But his lawyers have never made that claim 39 00:02:25,639 --> 00:02:29,320 Speaker 1: in court or in court papers, have they? No, they 40 00:02:29,320 --> 00:02:31,640 Speaker 1: have come right up to the line, but they've never 41 00:02:31,760 --> 00:02:35,200 Speaker 1: actually come out and said he be classified these documents, 42 00:02:35,280 --> 00:02:38,120 Speaker 1: and the reason they haven't done that is twofold one. 43 00:02:38,320 --> 00:02:41,480 Speaker 1: That would require a sworn after dated from Donald Trump 44 00:02:41,520 --> 00:02:44,240 Speaker 1: and or various staffers who were around who can attest 45 00:02:44,280 --> 00:02:47,000 Speaker 1: to what happened. No one wants to put their name 46 00:02:47,080 --> 00:02:50,640 Speaker 1: on that and potentially subject themselves the perjury charges. But 47 00:02:50,800 --> 00:02:55,080 Speaker 1: too even if they did, all it does is address 48 00:02:55,160 --> 00:02:58,840 Speaker 1: the idea that there were vague, you know, broad verbal orders, 49 00:02:59,440 --> 00:03:01,600 Speaker 1: none of we are gonna most likely have anything to 50 00:03:01,600 --> 00:03:05,280 Speaker 1: do specific to these particular one hundred documents and none 51 00:03:05,280 --> 00:03:09,320 Speaker 1: of which has anything to do ultimately with the three 52 00:03:09,320 --> 00:03:12,520 Speaker 1: criminal statutes in play that were the subject of the search. 53 00:03:12,560 --> 00:03:15,600 Speaker 1: Warm they don't care if the documents were declassified. The 54 00:03:15,680 --> 00:03:18,239 Speaker 1: markings are still there, they're still have to be treated 55 00:03:18,320 --> 00:03:22,000 Speaker 1: as valid unless they were demarked, and it doesn't change 56 00:03:22,040 --> 00:03:25,080 Speaker 1: the obstruction issue. That's the problem. That's why they're dancing 57 00:03:25,080 --> 00:03:28,240 Speaker 1: around this. What I don't understand through all this is 58 00:03:28,320 --> 00:03:33,160 Speaker 1: even if he had declassified these documents, it doesn't change 59 00:03:33,200 --> 00:03:36,920 Speaker 1: the fact that they don't belong to him. Correct. So 60 00:03:37,280 --> 00:03:42,000 Speaker 1: the only way he could theoretically have any possessory interest 61 00:03:42,200 --> 00:03:46,640 Speaker 1: in these documents is if he had designated them under 62 00:03:46,640 --> 00:03:50,480 Speaker 1: the Presidential Records Act as personal records and had done 63 00:03:50,560 --> 00:03:55,080 Speaker 1: so prior to leaving office. There is zero evidence that's 64 00:03:55,120 --> 00:03:58,960 Speaker 1: been produced that he ever did any such thing and 65 00:03:59,040 --> 00:04:01,840 Speaker 1: if he had, he was supposed to have notified the 66 00:04:01,960 --> 00:04:04,800 Speaker 1: archivists of the United States, and the artivists could have 67 00:04:04,840 --> 00:04:09,200 Speaker 1: taken action under the Presidential Records Act to challenge that, 68 00:04:09,640 --> 00:04:14,280 Speaker 1: because personal records are supposed to be non official, you know, 69 00:04:14,560 --> 00:04:17,920 Speaker 1: not relevant to the ordinary business of government. These were 70 00:04:18,040 --> 00:04:22,719 Speaker 1: top secret documents relating to foreign intelligence. That's not supposed 71 00:04:22,760 --> 00:04:25,919 Speaker 1: to be a personal record, that's official government records. That 72 00:04:26,000 --> 00:04:30,120 Speaker 1: would then the only circumstance in which he could theoretically 73 00:04:30,160 --> 00:04:32,520 Speaker 1: have had any type of right to those documents. There's 74 00:04:32,560 --> 00:04:34,799 Speaker 1: no indication you did any of that. If the judge 75 00:04:34,839 --> 00:04:36,960 Speaker 1: did say to the government, you have to prove these 76 00:04:37,000 --> 00:04:40,400 Speaker 1: are classified documents, would that be difficult for the government 77 00:04:40,440 --> 00:04:44,680 Speaker 1: to do? NOPE, all they would have to do, besides 78 00:04:44,839 --> 00:04:47,400 Speaker 1: literally showing the judge the documents with the markings on them, 79 00:04:47,720 --> 00:04:50,960 Speaker 1: they would submit a declaration from a relevant security official 80 00:04:51,360 --> 00:04:54,440 Speaker 1: saying I've reviewed the documents, I've cross checked against where 81 00:04:54,480 --> 00:04:58,040 Speaker 1: those documents came from and the relevant security classification guides. 82 00:04:58,560 --> 00:05:02,120 Speaker 1: They remain classified, the markings remain valid. There is no 83 00:05:02,240 --> 00:05:06,560 Speaker 1: declassification order I've found anywhere. U S District Judge Raymond 84 00:05:06,600 --> 00:05:10,160 Speaker 1: Deary said it's a matter of need to know. In 85 00:05:10,200 --> 00:05:12,400 Speaker 1: other words, is he even going to be able to 86 00:05:12,400 --> 00:05:17,159 Speaker 1: look at these documents explain that? Sure so, and this 87 00:05:17,240 --> 00:05:19,240 Speaker 1: is very common for those of us who deal with 88 00:05:19,279 --> 00:05:23,600 Speaker 1: classified information in civil litigation. This is a common problem 89 00:05:23,680 --> 00:05:26,320 Speaker 1: under the existing case law and I'm not saying I 90 00:05:26,360 --> 00:05:28,039 Speaker 1: agree with it. I'm saying this is what the case 91 00:05:28,120 --> 00:05:29,960 Speaker 1: law says that my name is on a bunch of 92 00:05:29,960 --> 00:05:34,440 Speaker 1: the cases that lost. But under the case law the government, 93 00:05:34,560 --> 00:05:38,279 Speaker 1: the executive branch, makes the ultimate decision on whether or 94 00:05:38,279 --> 00:05:41,400 Speaker 1: not a person has the relevant, quote unquote, need to 95 00:05:41,440 --> 00:05:45,080 Speaker 1: know the information. So it's not just that you have 96 00:05:45,160 --> 00:05:47,440 Speaker 1: the requisite clearance, because I have the clearance, my boss 97 00:05:47,480 --> 00:05:49,359 Speaker 1: is a clearance. We get told we don't have the 98 00:05:49,400 --> 00:05:52,160 Speaker 1: need to know all the time. If the government decides 99 00:05:52,279 --> 00:05:54,520 Speaker 1: that you don't have a need to know this particular information, 100 00:05:54,800 --> 00:05:58,040 Speaker 1: they can still refuse to provide you the access. So 101 00:05:58,480 --> 00:06:00,919 Speaker 1: what trump's team is trying to do here? They're saying 102 00:06:01,480 --> 00:06:05,880 Speaker 1: you see these records. We're challenging it as a civil matter. 103 00:06:07,080 --> 00:06:10,599 Speaker 1: We want access to the documents to review it and 104 00:06:10,640 --> 00:06:12,880 Speaker 1: decide how we're going to present our evidence that these 105 00:06:12,880 --> 00:06:15,760 Speaker 1: were not classified. Of the markets aren't valid. The government 106 00:06:15,839 --> 00:06:20,400 Speaker 1: saying Burns on you. You brought this action, present your evidence. 107 00:06:20,720 --> 00:06:23,120 Speaker 1: You have no need to know in terms of seeing 108 00:06:23,120 --> 00:06:27,400 Speaker 1: these particular documents with classification marketing, that's not our job 109 00:06:27,480 --> 00:06:29,760 Speaker 1: to give it to you. It's not in our view, 110 00:06:30,160 --> 00:06:33,040 Speaker 1: it's not in the interest of national security to provide 111 00:06:33,080 --> 00:06:36,600 Speaker 1: you with that access. In every single case that has 112 00:06:36,640 --> 00:06:39,040 Speaker 1: ever come up about this in a civil action has 113 00:06:39,040 --> 00:06:42,479 Speaker 1: set over and over again the executive branch alone makes 114 00:06:42,520 --> 00:06:47,080 Speaker 1: that decision. Judge Jalen cannon had barred the Justice Department 115 00:06:47,279 --> 00:06:51,919 Speaker 1: from using some one hundred documents with classification markings, but 116 00:06:52,080 --> 00:06:55,320 Speaker 1: on Wednesday a three judge panel of the Eleventh Circuit, 117 00:06:55,560 --> 00:07:00,599 Speaker 1: including two judges appointed by trump, intervened and said the 118 00:07:00,720 --> 00:07:04,640 Speaker 1: Justice Department can use those documents. Why did they intervene? 119 00:07:05,120 --> 00:07:09,080 Speaker 1: This was the eleventh circuit bringing everyone back to reality 120 00:07:09,120 --> 00:07:11,560 Speaker 1: on what the case law actually says and how this 121 00:07:11,720 --> 00:07:17,480 Speaker 1: is actually supposed to work. Namely this was a civil litigant. 122 00:07:17,640 --> 00:07:20,680 Speaker 1: Mr Trump who is now a private citizen, suing to 123 00:07:20,840 --> 00:07:24,480 Speaker 1: try to regain access to, in control over, records that 124 00:07:24,560 --> 00:07:27,800 Speaker 1: had been seized from him by the FBI. Pursue it 125 00:07:27,840 --> 00:07:31,200 Speaker 1: to a search warrant and in the particular context of 126 00:07:31,240 --> 00:07:37,080 Speaker 1: this appealed it concerned one documents with classification markets. At 127 00:07:37,120 --> 00:07:41,160 Speaker 1: no point in the lower court litigation had he ever 128 00:07:41,240 --> 00:07:45,880 Speaker 1: provided any evidence that the documents were not classified, that 129 00:07:45,920 --> 00:07:49,840 Speaker 1: he had declassified him or that the markings were not valid. 130 00:07:49,920 --> 00:07:53,160 Speaker 1: The burden was on him, and all of the case 131 00:07:53,240 --> 00:07:56,520 Speaker 1: law that applies in this context, most of which has 132 00:07:56,560 --> 00:07:59,680 Speaker 1: been dealt with in the context of either bring information 133 00:08:00,280 --> 00:08:04,640 Speaker 1: or First Amendment Litigation for manuscripts the former employees, always 134 00:08:04,720 --> 00:08:09,160 Speaker 1: makes clear that the burden to gain access to documentation 135 00:08:09,160 --> 00:08:11,280 Speaker 1: that the government still thinks it is classified, that burden 136 00:08:11,320 --> 00:08:14,320 Speaker 1: is going to be on the plaintiff to disprove essentially 137 00:08:14,520 --> 00:08:17,720 Speaker 1: that the classification is valid, and Mr Trump had never 138 00:08:17,800 --> 00:08:22,200 Speaker 1: done anything to create a genuine issue of material dispute 139 00:08:22,320 --> 00:08:25,440 Speaker 1: on that front. That's why the circuit intervened. Did you 140 00:08:25,480 --> 00:08:28,640 Speaker 1: see a rebuke to trump here? The panel said quote. 141 00:08:29,000 --> 00:08:32,120 Speaker 1: For our part, we cannot discern why the plaintiff would 142 00:08:32,160 --> 00:08:35,360 Speaker 1: have an individual interest in or need for any of 143 00:08:35,400 --> 00:08:40,360 Speaker 1: the documents with classification markings. I thought it as more 144 00:08:40,400 --> 00:08:43,559 Speaker 1: of a very polite and professional rebute to judge cannon 145 00:08:43,679 --> 00:08:46,559 Speaker 1: more so than to Mr Trump. Mr Trump is trying 146 00:08:46,600 --> 00:08:49,160 Speaker 1: to put forth whatever arguments he can, which is why 147 00:08:49,200 --> 00:08:52,600 Speaker 1: he civil Litigan does in this context, trying to create 148 00:08:52,720 --> 00:08:56,040 Speaker 1: a material controversy in order to try to delay in 149 00:08:56,160 --> 00:08:59,960 Speaker 1: gain access to the records. The judge, Judge Cannon, should 150 00:09:00,080 --> 00:09:02,719 Speaker 1: have known better, and that's what the Eleventh Circuit, I think, 151 00:09:02,760 --> 00:09:05,079 Speaker 1: was really focusing on. It was more of a response 152 00:09:05,120 --> 00:09:08,880 Speaker 1: of what were you thinking here? There's no possible basis 153 00:09:08,880 --> 00:09:11,400 Speaker 1: in law for him to have a possessory interest in 154 00:09:11,440 --> 00:09:16,679 Speaker 1: these documents. They also called trump's declassification argument a red herring. 155 00:09:16,880 --> 00:09:21,120 Speaker 1: Explained that, sure so, the search warrant in the criminal 156 00:09:21,160 --> 00:09:24,360 Speaker 1: provisions that are an issue do not rise and fall 157 00:09:24,720 --> 00:09:27,920 Speaker 1: on whether or not the documents were declassified. It's certainly 158 00:09:28,080 --> 00:09:32,160 Speaker 1: relevant in the context of the espionage espionage act claim, 159 00:09:32,480 --> 00:09:34,960 Speaker 1: because there's only one case in which the government has 160 00:09:35,000 --> 00:09:40,640 Speaker 1: ever pursued that type of charge for unclassified information relating 161 00:09:40,640 --> 00:09:43,720 Speaker 1: to the national defense. But ultimately, as a matter of law, 162 00:09:44,040 --> 00:09:48,079 Speaker 1: it doesn't matter if the documents were declassified, they were 163 00:09:48,080 --> 00:09:51,280 Speaker 1: still contained information relating to the national defense. That's the 164 00:09:51,400 --> 00:09:54,920 Speaker 1: espionage act charge and he obstructed the efforts by the 165 00:09:55,120 --> 00:09:59,080 Speaker 1: FBI and Nara to recover them. The document and the 166 00:09:59,080 --> 00:10:03,560 Speaker 1: search warrant only concerned documents with classification markings. It didn't 167 00:10:03,600 --> 00:10:08,240 Speaker 1: hinge on the documents classified. Regular general impression of what's 168 00:10:08,280 --> 00:10:11,440 Speaker 1: going on here. So what the trump team has tried 169 00:10:11,440 --> 00:10:14,760 Speaker 1: to do here essentially is to drag out or delay 170 00:10:15,200 --> 00:10:18,640 Speaker 1: this entire process. They're trying to throw, you know, a 171 00:10:18,720 --> 00:10:21,920 Speaker 1: wrench into the criminal inquiry, to slow it all down, 172 00:10:22,000 --> 00:10:26,640 Speaker 1: to drag out at whatever point Donald Trump may possibly, hypothetically, 173 00:10:26,720 --> 00:10:31,679 Speaker 1: theoretically be indicted. The hope for them is that if 174 00:10:31,679 --> 00:10:34,880 Speaker 1: they can slow down that part of the process and 175 00:10:35,080 --> 00:10:37,760 Speaker 1: keep that delayed as long as possible, that even if 176 00:10:37,800 --> 00:10:41,520 Speaker 1: there ultimately is an indictment, it will come late enough 177 00:10:41,559 --> 00:10:44,880 Speaker 1: in the process that there won't be a trial before 178 00:10:44,960 --> 00:10:49,480 Speaker 1: November and that either Donald trump or someone favorable to 179 00:10:49,640 --> 00:10:52,440 Speaker 1: him will win the presidency and shut it all down. 180 00:10:52,760 --> 00:10:55,599 Speaker 1: That's all this is. If this gets the trial and 181 00:10:55,720 --> 00:10:58,440 Speaker 1: this gets to a jury verdict, it is almost certain, 182 00:10:58,440 --> 00:11:01,160 Speaker 1: in my view, that donal trump will lose. That's why 183 00:11:01,200 --> 00:11:04,880 Speaker 1: he's doing everything with the special master, with these various emotions. 184 00:11:04,920 --> 00:11:08,079 Speaker 1: He's just trying to muck up the process. Thanks, Prad. 185 00:11:08,400 --> 00:11:14,080 Speaker 1: That's Brad Moss of Mark said. Yeshiva University has decided 186 00:11:14,120 --> 00:11:19,080 Speaker 1: to temporarily suspend all undergraduate club activities after the U 187 00:11:19,200 --> 00:11:22,320 Speaker 1: S Supreme Court refused to step into a legal fight 188 00:11:22,720 --> 00:11:27,360 Speaker 1: over recognition of a campus lgbt q student group. In 189 00:11:27,400 --> 00:11:31,040 Speaker 1: an unsigned opinion, the Supreme Court said the New York 190 00:11:31,080 --> 00:11:34,960 Speaker 1: School has other avenues for repeal it can pursue before 191 00:11:34,960 --> 00:11:38,160 Speaker 1: the justices have to get involved. But in a descent 192 00:11:38,360 --> 00:11:43,000 Speaker 1: joined by three other conservatives, Justice Samuel Alito predicted the 193 00:11:43,080 --> 00:11:46,800 Speaker 1: university will ultimately prevail on the question of whether it's 194 00:11:46,840 --> 00:11:50,520 Speaker 1: religious rights are being violated by having to recognize the 195 00:11:50,760 --> 00:11:54,280 Speaker 1: Y you pride alliance joining me as Professor Richard Garnett 196 00:11:54,320 --> 00:11:57,480 Speaker 1: of Notre Dame law school. So Rick, start by telling 197 00:11:57,559 --> 00:12:00,079 Speaker 1: us about the supreme courts five to four decision. And 198 00:12:00,559 --> 00:12:04,640 Speaker 1: it's a ruling not on the merits of the disagreement 199 00:12:04,720 --> 00:12:07,520 Speaker 1: that yeshiva has with the regulators here. It was. It 200 00:12:07,600 --> 00:12:10,760 Speaker 1: was about whether or not a New York state trial 201 00:12:10,840 --> 00:12:14,160 Speaker 1: courts decision should be stayed. That is kind of put 202 00:12:14,200 --> 00:12:16,920 Speaker 1: on hold in order for Yeshiva to be able to 203 00:12:17,000 --> 00:12:20,120 Speaker 1: take its constitutional and other arguments to a higher court. 204 00:12:20,200 --> 00:12:23,120 Speaker 1: So what the Supreme Court did is not say, you know, 205 00:12:23,480 --> 00:12:26,839 Speaker 1: who's right about this disagreement with respect to the application 206 00:12:26,880 --> 00:12:29,280 Speaker 1: of New York's law or what the First Amendment means. 207 00:12:29,400 --> 00:12:31,800 Speaker 1: It just said that we're not going to block this 208 00:12:31,920 --> 00:12:35,360 Speaker 1: lower state court. We're gonna tell yeshiva instead to pursue 209 00:12:35,960 --> 00:12:39,199 Speaker 1: its available procedures in the New York system and then 210 00:12:39,480 --> 00:12:41,679 Speaker 1: once they're done with the New York system, they can 211 00:12:41,720 --> 00:12:46,000 Speaker 1: come back to us. I saw a lot of commentators 212 00:12:46,000 --> 00:12:49,160 Speaker 1: say how unusual it was for the Supreme Court to basically, 213 00:12:49,800 --> 00:12:52,360 Speaker 1: you know, lay out a roadmap for what yeshiva has 214 00:12:52,400 --> 00:12:55,920 Speaker 1: to do. Did you find it unusual? It is unusual, 215 00:12:56,400 --> 00:12:59,240 Speaker 1: not not unprecedented, but unusual. I mean it was pretty 216 00:12:59,240 --> 00:13:02,280 Speaker 1: clear that only the dissenters, but you know, the court 217 00:13:02,320 --> 00:13:06,440 Speaker 1: itself was pretty explicit about what they thought was still 218 00:13:06,480 --> 00:13:09,600 Speaker 1: open and pretty explicit that they were ready and willing 219 00:13:09,640 --> 00:13:12,559 Speaker 1: to look at the case again once the proper procedures 220 00:13:12,559 --> 00:13:14,839 Speaker 1: have been followed, or what they think the proper procedures are. 221 00:13:14,880 --> 00:13:18,040 Speaker 1: So I guess it's pretty reasonable to think that the 222 00:13:18,040 --> 00:13:21,439 Speaker 1: the justices were signaling their views about the ultimate merits 223 00:13:21,480 --> 00:13:24,599 Speaker 1: of the dispute. But you know it is pretty standard 224 00:13:24,720 --> 00:13:27,559 Speaker 1: for the Supreme Court to sit back and let State 225 00:13:27,559 --> 00:13:31,520 Speaker 1: Court proceedings work out in a chord with state law 226 00:13:31,640 --> 00:13:35,880 Speaker 1: and state process before coming in. So the descent written 227 00:13:35,920 --> 00:13:39,400 Speaker 1: by Justice Samuel Alito, at least four of us are 228 00:13:39,400 --> 00:13:42,800 Speaker 1: likely to vote to grant Sir Sharrari if Shashiva's first 229 00:13:42,840 --> 00:13:46,720 Speaker 1: amendment arguments are rejected on appeal and yeshiva would likely 230 00:13:46,800 --> 00:13:50,480 Speaker 1: win if its case came before us. Isn't he deciding 231 00:13:50,520 --> 00:13:53,440 Speaker 1: the case before it's even been argued? Well, you only 232 00:13:53,480 --> 00:13:56,640 Speaker 1: need four justices to grant sert you know, and there 233 00:13:56,640 --> 00:13:59,600 Speaker 1: were four justices on the descent there. So those four 234 00:13:59,679 --> 00:14:02,679 Speaker 1: don't decide anything. They're just communicating that. You know, given 235 00:14:02,679 --> 00:14:06,400 Speaker 1: our understanding of the case at present, if yeshiva asks 236 00:14:06,440 --> 00:14:07,959 Speaker 1: us to take this case, we're going to vote to 237 00:14:07,960 --> 00:14:10,240 Speaker 1: take it and you know for that to take it. 238 00:14:10,320 --> 00:14:13,400 Speaker 1: But it was interesting that extra bit where justice leader 239 00:14:13,440 --> 00:14:16,400 Speaker 1: does pretty clearly suggest to the parties below that he 240 00:14:16,520 --> 00:14:19,000 Speaker 1: thinks it wouldn't just be the four on yeshiva side, 241 00:14:19,000 --> 00:14:20,920 Speaker 1: and I think he's probably right about that. I mean 242 00:14:20,960 --> 00:14:23,640 Speaker 1: I suspect that it wouldn't even be just five or 243 00:14:23,680 --> 00:14:26,600 Speaker 1: even six, but that if the case were to actually 244 00:14:26,640 --> 00:14:30,640 Speaker 1: get to the Supreme Court, that Yeshiva would win. But for, 245 00:14:31,600 --> 00:14:33,600 Speaker 1: you know, whatever reasons, I'm not I'm not privy to them. 246 00:14:33,640 --> 00:14:36,800 Speaker 1: Obviously a majority of the justices wanted to have this 247 00:14:36,920 --> 00:14:41,400 Speaker 1: thing sort of play out more slowly and to play 248 00:14:41,440 --> 00:14:43,840 Speaker 1: out fully in the State Court system before the Supreme 249 00:14:43,880 --> 00:14:47,160 Speaker 1: Court comes in on the ultimate merits questions. Why do 250 00:14:47,200 --> 00:14:50,840 Speaker 1: you think that it's such a clear cut case on 251 00:14:50,920 --> 00:14:53,880 Speaker 1: the merits so that the doctrine that the supreme courts 252 00:14:54,000 --> 00:14:56,720 Speaker 1: settled on in recent years is that a law that 253 00:14:56,840 --> 00:15:00,520 Speaker 1: is not generally applicable but that burden's religion is subject 254 00:15:00,560 --> 00:15:03,160 Speaker 1: to what's called strict scrutiny, and that's a very demanding standard. 255 00:15:03,280 --> 00:15:06,040 Speaker 1: And it seems pretty clear that the New York anti 256 00:15:06,040 --> 00:15:10,320 Speaker 1: discrimination regulation that's being applied here has lots of exceptions. 257 00:15:10,320 --> 00:15:13,440 Speaker 1: There's all kinds of civic groups and clubs and other 258 00:15:13,560 --> 00:15:17,880 Speaker 1: organizations that are not subject to this particular anti discrimination 259 00:15:17,920 --> 00:15:20,760 Speaker 1: norm but yeshiva is, and so yeshiva is going to 260 00:15:20,800 --> 00:15:23,160 Speaker 1: be able to say the application of this law is 261 00:15:23,160 --> 00:15:27,440 Speaker 1: a burden on our religious freedom rights and because it's 262 00:15:27,480 --> 00:15:30,760 Speaker 1: a burden that's being imposed by a law that's not general, 263 00:15:31,040 --> 00:15:33,920 Speaker 1: then that burden has to be evaluated under this very 264 00:15:33,920 --> 00:15:37,280 Speaker 1: demanding standard and generally speaking, when strict scrutiny is applied 265 00:15:37,280 --> 00:15:40,520 Speaker 1: to a law, the law loses. And I think it'd 266 00:15:40,520 --> 00:15:42,720 Speaker 1: be again more than just bob or even six justices 267 00:15:42,760 --> 00:15:44,800 Speaker 1: who would think that that was true. Because if New 268 00:15:44,880 --> 00:15:50,080 Speaker 1: York is willing to allow various other nonprofits to have 269 00:15:50,840 --> 00:15:54,640 Speaker 1: internal rules that reflect their their values and their missions on, 270 00:15:55,320 --> 00:15:57,280 Speaker 1: I think the court is going to say that they 271 00:15:57,320 --> 00:16:00,600 Speaker 1: can't deny that to yeshiva. There's also a state law 272 00:16:00,600 --> 00:16:03,880 Speaker 1: issue about whether yeshiva is even covered by this law, 273 00:16:04,240 --> 00:16:06,560 Speaker 1: because the question is whether or not accounts as a 274 00:16:06,600 --> 00:16:09,240 Speaker 1: religious institution, and the State Trial Court has said that 275 00:16:09,320 --> 00:16:12,000 Speaker 1: yeshiva wasn't, and obviously yeshiva thinks that it is a 276 00:16:12,040 --> 00:16:16,040 Speaker 1: religious institution. The Supreme Court wouldn't get involved probably in 277 00:16:16,280 --> 00:16:18,400 Speaker 1: resolving with the State Court question, but that's going to 278 00:16:18,480 --> 00:16:20,840 Speaker 1: be something to put the appellate courts in the state 279 00:16:21,440 --> 00:16:26,359 Speaker 1: hash out. So the Lower Court judge ruled that yeshiva 280 00:16:26,840 --> 00:16:31,120 Speaker 1: was incorporated as an educational institution, not a religious one. 281 00:16:31,720 --> 00:16:36,240 Speaker 1: So so as a secular institution, it's bound by New 282 00:16:36,320 --> 00:16:40,320 Speaker 1: York state human rights laws. If the Appellate Court affirms 283 00:16:40,360 --> 00:16:43,200 Speaker 1: that as an interpretation of New York law, will the 284 00:16:43,240 --> 00:16:48,400 Speaker 1: Supreme Court accept that? Yeah, because so if the appellate 285 00:16:48,400 --> 00:16:51,760 Speaker 1: court in New York were to agree that that yeshiva 286 00:16:51,880 --> 00:16:54,560 Speaker 1: is covered, then you sort of pivot to the First 287 00:16:54,600 --> 00:16:59,040 Speaker 1: Amendment question. So in a sense the case has two layers. Right, UM, 288 00:16:59,160 --> 00:17:02,560 Speaker 1: under New York law, should this anti discrimination rule even 289 00:17:02,600 --> 00:17:05,920 Speaker 1: be applied to yeshiva? And the second question is, if 290 00:17:05,960 --> 00:17:08,760 Speaker 1: the New York law does apply, well, does the First 291 00:17:08,800 --> 00:17:12,679 Speaker 1: Amendment permit that application? And I think the question that 292 00:17:13,160 --> 00:17:17,479 Speaker 1: Justice Alito and his colleagues, I think we're signaling their 293 00:17:17,600 --> 00:17:21,720 Speaker 1: views on, was that latter constitutional question, that that even 294 00:17:21,760 --> 00:17:26,479 Speaker 1: if the New York law does apply Um, under current 295 00:17:27,280 --> 00:17:33,120 Speaker 1: free exercise doctrine, current First Amendment Doctrine Um, that application 296 00:17:33,400 --> 00:17:39,760 Speaker 1: would probably be uh invalidated. So I'm wondering if the 297 00:17:39,880 --> 00:17:43,720 Speaker 1: university has sort of tried to tread this line between 298 00:17:43,880 --> 00:17:49,919 Speaker 1: welcoming lgbt Q students but refusing to recognize this club 299 00:17:50,119 --> 00:17:56,640 Speaker 1: on religious grounds. Does that cut against yeshiva in any sense? Well, 300 00:17:56,680 --> 00:17:59,720 Speaker 1: in order to get protection for religious freedom rights courts 301 00:17:59,720 --> 00:18:03,840 Speaker 1: will ask whether the belief in question is sincere. So 302 00:18:04,080 --> 00:18:06,600 Speaker 1: in some cases not, not very often, but in some 303 00:18:06,640 --> 00:18:11,040 Speaker 1: cases a court might say that a party's inconsistent practices 304 00:18:11,119 --> 00:18:13,440 Speaker 1: suggest that its objections are not really since here. I 305 00:18:13,480 --> 00:18:17,119 Speaker 1: don't think that would happen here. You know, religious institutions 306 00:18:17,119 --> 00:18:21,320 Speaker 1: are allowed to decide for themselves, Um, what their religious 307 00:18:21,320 --> 00:18:25,400 Speaker 1: commitments are and Um Yeshiva's position could well be. Look, 308 00:18:26,160 --> 00:18:29,879 Speaker 1: we have no we have no religious problem with welcoming people. 309 00:18:29,920 --> 00:18:32,919 Speaker 1: The problem, the concern that we have is with officially 310 00:18:33,040 --> 00:18:36,920 Speaker 1: recognizing a group, because that might be Um, that might 311 00:18:36,960 --> 00:18:40,520 Speaker 1: count as kind of an institutional endorsement of the group's 312 00:18:40,520 --> 00:18:45,760 Speaker 1: particular positions, which they might think Um, is different from simply, 313 00:18:46,280 --> 00:18:49,280 Speaker 1: you know, welcoming people to come if they so chose. 314 00:18:49,720 --> 00:18:51,920 Speaker 1: And of court is not gonna and we wouldn't want 315 00:18:51,920 --> 00:18:53,399 Speaker 1: courts to do this. I don't think of court is 316 00:18:53,440 --> 00:18:55,760 Speaker 1: not going to get into the question whether, you know, 317 00:18:56,200 --> 00:19:00,800 Speaker 1: are yeshiva's religious liberty, religious positions it makes sense to us. 318 00:19:00,840 --> 00:19:03,840 Speaker 1: Do they seem consistent to us to be line up 319 00:19:03,840 --> 00:19:06,200 Speaker 1: with what you know, how we think their religion should 320 00:19:06,200 --> 00:19:08,639 Speaker 1: be interpreted? Courts aren't going to get into that. So 321 00:19:08,680 --> 00:19:13,000 Speaker 1: the school's taking this rather aggressive step of just suspending 322 00:19:13,160 --> 00:19:17,280 Speaker 1: all the groups at school, while it follows the roadmap 323 00:19:17,400 --> 00:19:20,400 Speaker 1: left by the Supreme Court, and a lawyer for the students, 324 00:19:20,440 --> 00:19:24,760 Speaker 1: the gay students, said the university's action was divisive and 325 00:19:24,840 --> 00:19:29,080 Speaker 1: shameful rather than accept one lgbt q peer support group 326 00:19:29,160 --> 00:19:32,520 Speaker 1: on campus. It's a throwback to fifty years ago when 327 00:19:32,520 --> 00:19:36,160 Speaker 1: the city of Jackson, Mississippi, closed all public swimming pools 328 00:19:36,600 --> 00:19:41,240 Speaker 1: rather than comply with court orders to desegregate. Well, I 329 00:19:41,280 --> 00:19:44,520 Speaker 1: guess we can talk about Um, who's being more aggressive. 330 00:19:44,720 --> 00:19:48,560 Speaker 1: That's a pretty aggressive rhetorical stance to take with respect 331 00:19:48,560 --> 00:19:52,040 Speaker 1: to ESCHIVA's actions. But but yeah, I mean they clearly 332 00:19:52,040 --> 00:19:57,320 Speaker 1: decided that Um, and this, I suppose, confirms the sincerity 333 00:19:57,320 --> 00:20:02,560 Speaker 1: of their position that Um, they genuinely do think that 334 00:20:03,160 --> 00:20:06,600 Speaker 1: Um official recognition of this group, which again they believe 335 00:20:06,640 --> 00:20:10,760 Speaker 1: is different from welcoming particular students, that official recognition would 336 00:20:11,440 --> 00:20:16,920 Speaker 1: constitute an endorsement that's inconsistent with their religious character. and Um, 337 00:20:17,119 --> 00:20:19,480 Speaker 1: you know they they're not going to violate court orders, 338 00:20:19,520 --> 00:20:23,800 Speaker 1: but the way to Um be in compliance with that 339 00:20:23,960 --> 00:20:28,600 Speaker 1: order is to not have groups officially recognized. Groups operating 340 00:20:28,720 --> 00:20:34,560 Speaker 1: at all. I'm sure that's not the university's preference and Um, 341 00:20:34,600 --> 00:20:36,520 Speaker 1: you know, once the litigation plays out, I suppose they 342 00:20:36,520 --> 00:20:39,439 Speaker 1: can go back, you know, whether it's analogous to the 343 00:20:39,520 --> 00:20:43,160 Speaker 1: kind of discrimination that the lawyer mentioned with respect to disaggregation. 344 00:20:44,119 --> 00:20:46,399 Speaker 1: I guess people would disagree with that. I'm inclined to 345 00:20:46,400 --> 00:20:48,080 Speaker 1: say that yeshiva would have a very different take on that. 346 00:20:48,840 --> 00:20:53,080 Speaker 1: Does this Dispute Mirror the kinds of, you know, legal 347 00:20:53,119 --> 00:20:58,080 Speaker 1: disputes we've seen that pit religious beliefs against local or 348 00:20:58,160 --> 00:21:03,480 Speaker 1: state anti discrimination law? Yeah, sure, we were. When we're seeing, 349 00:21:03,600 --> 00:21:06,960 Speaker 1: as you know, we're seeing more of these. You can 350 00:21:07,000 --> 00:21:11,399 Speaker 1: think of the masterpiece cake shop decision, or there's a 351 00:21:11,520 --> 00:21:13,960 Speaker 1: free speech decision that the Supreme Court has this year 352 00:21:13,960 --> 00:21:18,240 Speaker 1: called three or three creative another wedding vendor case. Um, 353 00:21:18,280 --> 00:21:20,919 Speaker 1: the fault in case from two years ago having to 354 00:21:20,920 --> 00:21:25,239 Speaker 1: do with foster care certification in Philadelphia. This, this is 355 00:21:25,280 --> 00:21:28,919 Speaker 1: the this is the arena in our current time. It 356 00:21:29,000 --> 00:21:32,560 Speaker 1: wasn't always true where some of the more high profile 357 00:21:33,200 --> 00:21:38,400 Speaker 1: classes between government regulations on the one hand and religious 358 00:21:38,400 --> 00:21:42,440 Speaker 1: liberty interests on the other are are being seen. Now, 359 00:21:42,480 --> 00:21:44,320 Speaker 1: you know, there's a there is a danger. I think 360 00:21:44,359 --> 00:21:47,480 Speaker 1: that we focus on these classes more than many, many 361 00:21:47,520 --> 00:21:49,880 Speaker 1: religious liberty cases that are out there that don't involve 362 00:21:50,400 --> 00:21:54,680 Speaker 1: antidiscrimination law at all. But these are the ones that 363 00:21:54,720 --> 00:21:57,280 Speaker 1: do seem to be the highest profile right now because 364 00:21:57,280 --> 00:21:59,800 Speaker 1: it's it's just a fact that there is kind of 365 00:21:59,840 --> 00:22:05,400 Speaker 1: a cultural or social or, I guess, the religious Um 366 00:22:05,880 --> 00:22:09,520 Speaker 1: divide the country on some of these questions and they're 367 00:22:10,280 --> 00:22:13,480 Speaker 1: they're going to continue. Yes, you know, all those cases 368 00:22:13,520 --> 00:22:16,320 Speaker 1: you mentioned show why it's pretty clear which way the 369 00:22:16,359 --> 00:22:19,040 Speaker 1: Supreme Court is going to rule on this, if it 370 00:22:19,119 --> 00:22:21,879 Speaker 1: gets to the Supreme Court. Yes, I think that's true. 371 00:22:21,880 --> 00:22:24,159 Speaker 1: And yet these cases are not contrary to with some 372 00:22:24,200 --> 00:22:27,120 Speaker 1: people think. They're not always sort of liberals versus conservatives 373 00:22:27,160 --> 00:22:28,479 Speaker 1: and so on. I mean, I think there has been 374 00:22:28,520 --> 00:22:32,120 Speaker 1: an interest in trying to find kind of compromise positions 375 00:22:32,119 --> 00:22:37,200 Speaker 1: where anti discrimination norms can be closely enforced in public 376 00:22:37,240 --> 00:22:40,800 Speaker 1: contexts and certainly by government agencies and so on, while 377 00:22:40,880 --> 00:22:44,679 Speaker 1: still giving religious institutions space to act in accord with 378 00:22:44,720 --> 00:22:47,760 Speaker 1: their own religious beliefs. And you know, whether we're able 379 00:22:47,800 --> 00:22:50,800 Speaker 1: to find, in kind of a consistent across the board way, 380 00:22:50,840 --> 00:22:53,679 Speaker 1: those sort of compromised I guess that does remain, but 381 00:22:53,800 --> 00:22:57,320 Speaker 1: I suspect that the justices will actually have a consensus 382 00:22:57,400 --> 00:23:00,520 Speaker 1: on this one. Thanks Rick. That's Richard Gardner of Notre 383 00:23:00,600 --> 00:23:06,000 Speaker 1: Dame law school. The Justice Department is laying out policy 384 00:23:06,160 --> 00:23:09,960 Speaker 1: changes to crack down on corporate crime. It's centers on 385 00:23:10,080 --> 00:23:14,879 Speaker 1: allowing more companies to voluntarily report misconduct and cooperate on 386 00:23:14,960 --> 00:23:19,120 Speaker 1: remedial actions to avoid pleading guilty. Joining me is Chris Strom, 387 00:23:19,119 --> 00:23:24,199 Speaker 1: Bloomberg legal reporter covering the Justice Department. So tell us 388 00:23:24,280 --> 00:23:28,879 Speaker 1: about this new push by the Justice Department, where it 389 00:23:28,960 --> 00:23:32,280 Speaker 1: comes from and how long it's been in the making. Well, 390 00:23:32,480 --> 00:23:37,160 Speaker 1: the deputy attorney general, Lisa Monico, had made corporate enforcement 391 00:23:37,200 --> 00:23:41,479 Speaker 1: a priority when she first came into her position. She 392 00:23:41,680 --> 00:23:45,080 Speaker 1: has been in out of government and for a while 393 00:23:45,240 --> 00:23:48,760 Speaker 1: she was working in the private sector and she knew 394 00:23:48,800 --> 00:23:52,480 Speaker 1: what government priorities were, she understood what private sector concerns were, 395 00:23:52,920 --> 00:23:55,760 Speaker 1: and so she came in and made an announcement that 396 00:23:55,840 --> 00:23:58,639 Speaker 1: she was going to take a review of the department's 397 00:23:58,680 --> 00:24:02,480 Speaker 1: Corporate Enforcement Priority these and Um she formed an advisory 398 00:24:02,480 --> 00:24:04,400 Speaker 1: group and over to that, over the last year they've 399 00:24:04,440 --> 00:24:08,200 Speaker 1: been looking at what it is that the department could do. Um, 400 00:24:08,280 --> 00:24:11,840 Speaker 1: that would have more teeth in terms of getting companies 401 00:24:12,280 --> 00:24:16,520 Speaker 1: to address misconduct but also be sensitive to a company concern. 402 00:24:16,960 --> 00:24:21,840 Speaker 1: And so she has now announced that the department is 403 00:24:21,880 --> 00:24:26,480 Speaker 1: implementing new policies and the primary push of the new 404 00:24:26,520 --> 00:24:30,919 Speaker 1: policy will allow companies to avoid prosecution or having to 405 00:24:31,000 --> 00:24:36,040 Speaker 1: plead guilty for misconduct as long as they come forward 406 00:24:36,119 --> 00:24:42,399 Speaker 1: early and fully disclosed the misconduct that they've discovered to 407 00:24:42,640 --> 00:24:44,399 Speaker 1: d o j and work with d o j to 408 00:24:44,520 --> 00:24:48,320 Speaker 1: remediate the problem. So basically, they want companies to turn 409 00:24:48,359 --> 00:24:51,800 Speaker 1: themselves in when they find there some wrongdoing. That's right. 410 00:24:51,840 --> 00:24:56,040 Speaker 1: They want companies to police themselves. D O J for 411 00:24:56,160 --> 00:25:01,480 Speaker 1: a while has focused on ending out that companies were 412 00:25:01,960 --> 00:25:09,080 Speaker 1: committing crimes or participating in wrongdoing and going to them 413 00:25:09,080 --> 00:25:14,679 Speaker 1: with more of a hammer and a prosecution approach, and 414 00:25:15,320 --> 00:25:19,320 Speaker 1: what the department is trying to do now is encourage 415 00:25:19,359 --> 00:25:23,440 Speaker 1: companies to police themselves and then work with the department 416 00:25:23,960 --> 00:25:26,960 Speaker 1: so it doesn't have to be such an adversarial relationship. 417 00:25:27,359 --> 00:25:30,840 Speaker 1: Now there's a lot of questions, a lot of concerns 418 00:25:31,320 --> 00:25:34,840 Speaker 1: about how this is going to work in practice and 419 00:25:34,920 --> 00:25:39,040 Speaker 1: will companies really be willing to come forward and disclose 420 00:25:39,520 --> 00:25:45,280 Speaker 1: information and will the department really gives them leniency depending 421 00:25:45,320 --> 00:25:49,800 Speaker 1: on what they admit to being misconduct. In your story 422 00:25:49,840 --> 00:25:53,800 Speaker 1: you say they're going to shift the focus to prosecuting executives. 423 00:25:54,320 --> 00:25:57,040 Speaker 1: In other words, no longer those you know. You'd hear 424 00:25:57,080 --> 00:25:59,840 Speaker 1: the company pleads guilty to such and such. It's going 425 00:25:59,880 --> 00:26:05,000 Speaker 1: to the individuals. Now the Justice Department is definitely interested 426 00:26:05,520 --> 00:26:11,240 Speaker 1: in prosecuting individuals, whether their executives or company employees, who 427 00:26:11,240 --> 00:26:15,320 Speaker 1: have committed wrongdoing, rather than trying to reach some kind 428 00:26:15,359 --> 00:26:19,240 Speaker 1: of an agreement with a company and punish the company 429 00:26:19,280 --> 00:26:23,640 Speaker 1: overall with some kind of a fine, because that can 430 00:26:23,680 --> 00:26:26,080 Speaker 1: be seen as just being a slap on the wrist 431 00:26:26,080 --> 00:26:28,880 Speaker 1: when you look at the amount of a fine compared 432 00:26:28,920 --> 00:26:31,280 Speaker 1: to how much a company is worth, what kind of 433 00:26:31,320 --> 00:26:35,560 Speaker 1: revenue and profits they have. And so the department wants 434 00:26:35,600 --> 00:26:41,520 Speaker 1: to focus on holding individuals accountable more than just doing 435 00:26:41,880 --> 00:26:47,120 Speaker 1: a broad prosecution of a company. And so the department 436 00:26:47,200 --> 00:26:52,880 Speaker 1: also wants to get away from having to punish shareholders 437 00:26:52,960 --> 00:26:55,439 Speaker 1: and people who didn't have anything to do with the 438 00:26:55,480 --> 00:27:00,679 Speaker 1: misconduct and identify those who, in particular, will sponsible for 439 00:27:00,680 --> 00:27:04,960 Speaker 1: the misconduct. So Monica. Monica described it as a combination 440 00:27:05,000 --> 00:27:09,159 Speaker 1: of carrots and sticks. What are the carrots? So the 441 00:27:09,240 --> 00:27:13,159 Speaker 1: carrots that the department is willing to offer is to 442 00:27:13,760 --> 00:27:18,600 Speaker 1: allow companies to avoid pleading guilty, allow companies to avoid 443 00:27:18,920 --> 00:27:22,199 Speaker 1: prosecution in exchange for coming forward and working with the 444 00:27:22,240 --> 00:27:27,080 Speaker 1: department on a more cooperative basis. This assumes that the 445 00:27:27,119 --> 00:27:32,520 Speaker 1: companies are investigating themselves, you know, during the average work 446 00:27:32,640 --> 00:27:35,840 Speaker 1: day or or work week. I mean to find the 447 00:27:35,920 --> 00:27:41,480 Speaker 1: misconduct within the company before d o j does correct 448 00:27:41,720 --> 00:27:44,760 Speaker 1: what the department wants companies to do is to come 449 00:27:44,840 --> 00:27:49,760 Speaker 1: up with monitoring and compliance programs on their own and 450 00:27:50,119 --> 00:27:56,840 Speaker 1: to consistently monitor whether there's any misconduct taking place and 451 00:27:56,920 --> 00:27:59,720 Speaker 1: to be able to catch it on their own and 452 00:27:59,760 --> 00:28:04,399 Speaker 1: then come forward and disclose it too regulators. The department 453 00:28:04,840 --> 00:28:07,480 Speaker 1: is willing to work with companies in order to help 454 00:28:07,520 --> 00:28:10,600 Speaker 1: them develop a compliance program if that's what they want 455 00:28:10,640 --> 00:28:13,200 Speaker 1: to do, but a lot of what the department is 456 00:28:13,240 --> 00:28:16,760 Speaker 1: asking right now is for companies to police themselves. Chris, 457 00:28:16,840 --> 00:28:22,240 Speaker 1: don't big companies now have compliance programs? Yes, there are 458 00:28:22,320 --> 00:28:27,080 Speaker 1: many companies that have compliance programs. The department is arguing 459 00:28:27,200 --> 00:28:29,880 Speaker 1: that some of these compliance programs are out of date 460 00:28:30,359 --> 00:28:33,440 Speaker 1: or they sound good on paper but they're not really 461 00:28:33,440 --> 00:28:38,120 Speaker 1: being used in practice, and so what will happen is 462 00:28:38,160 --> 00:28:41,720 Speaker 1: that a company will be able to talk about all 463 00:28:41,760 --> 00:28:45,920 Speaker 1: the compliance and in good business practices that they have 464 00:28:46,560 --> 00:28:50,440 Speaker 1: and if there's a problem that is discovered, then they 465 00:28:50,440 --> 00:28:54,040 Speaker 1: can point to that and say that they shouldn't suffer 466 00:28:54,160 --> 00:28:57,960 Speaker 1: any penalties because they have these compliance programs. What Lisa 467 00:28:58,000 --> 00:29:01,200 Speaker 1: Monica and the Justice Department are saying is that they 468 00:29:01,280 --> 00:29:04,320 Speaker 1: need to be able to review the compliance program when 469 00:29:04,360 --> 00:29:07,280 Speaker 1: making decisions about whether companies are going to be able 470 00:29:07,320 --> 00:29:11,320 Speaker 1: to avoid pleading guilty or avoid prosecution, and they want 471 00:29:11,360 --> 00:29:16,320 Speaker 1: to see a demonstrated commitment by companies over time that 472 00:29:16,400 --> 00:29:20,800 Speaker 1: these companies are actually taking their compliance programs very seriously. 473 00:29:21,280 --> 00:29:23,960 Speaker 1: And one thing in particular that the department wants to 474 00:29:24,000 --> 00:29:31,000 Speaker 1: see is that companies clawback compensation or remove financial incentives 475 00:29:31,120 --> 00:29:36,080 Speaker 1: for executives or employees who are found to have committed misconduct. 476 00:29:36,400 --> 00:29:39,040 Speaker 1: And so if a company can show that over time 477 00:29:39,360 --> 00:29:45,320 Speaker 1: they were taking action internally against individuals who had been 478 00:29:45,320 --> 00:29:48,880 Speaker 1: in breach of certain practices, that will go a long 479 00:29:48,960 --> 00:29:53,400 Speaker 1: way towards convincing the Justice Department that they've been actively 480 00:29:53,480 --> 00:29:59,120 Speaker 1: trying to monitor compliance and enforce best business practices. And 481 00:29:59,160 --> 00:30:03,880 Speaker 1: the department will a that into consideration. Have you talked 482 00:30:03,920 --> 00:30:07,920 Speaker 1: to any corporate compliance officers to find out what their 483 00:30:07,960 --> 00:30:11,000 Speaker 1: take is on this? Yes, we've reached out to corporate 484 00:30:11,000 --> 00:30:13,840 Speaker 1: compliance officers. We've heard from them. In the process of 485 00:30:13,880 --> 00:30:17,880 Speaker 1: the department putting together these new policies, there are a 486 00:30:17,920 --> 00:30:20,840 Speaker 1: lot of concerns about exactly how this is going to work. 487 00:30:21,240 --> 00:30:25,120 Speaker 1: The Department still needs to finalize some of its rules. 488 00:30:25,160 --> 00:30:27,480 Speaker 1: Part of what the department is saying right now is 489 00:30:27,520 --> 00:30:32,080 Speaker 1: that it is going to be coming forward with additional 490 00:30:32,160 --> 00:30:37,320 Speaker 1: guidelines and additional rules for different components of the department. 491 00:30:37,960 --> 00:30:42,200 Speaker 1: And so there's the overarching goal that the department has articulated, 492 00:30:42,640 --> 00:30:45,200 Speaker 1: but then there's the issue of where the rubber meets 493 00:30:45,240 --> 00:30:49,080 Speaker 1: the road for these companies and there are things that 494 00:30:49,200 --> 00:30:53,120 Speaker 1: the companies want to see the department put forward in 495 00:30:53,160 --> 00:30:57,480 Speaker 1: a more concrete fashion, especially with regard to the issue 496 00:30:57,480 --> 00:31:03,840 Speaker 1: of compensation and are there certain thresholds that companies should 497 00:31:03,840 --> 00:31:09,800 Speaker 1: be looking at when they are clawing back compensations? Are 498 00:31:09,800 --> 00:31:13,440 Speaker 1: there certain monetary thresholds that the department is going to 499 00:31:13,560 --> 00:31:16,800 Speaker 1: want to see companies meet? And B O J hasn't 500 00:31:16,840 --> 00:31:20,360 Speaker 1: defined uh those kind of issues yet. It sounds like. 501 00:31:20,480 --> 00:31:23,640 Speaker 1: This is a program that's going to take many years 502 00:31:23,720 --> 00:31:29,280 Speaker 1: to get, you know, ingrained in corporations workings and also 503 00:31:29,360 --> 00:31:33,600 Speaker 1: in the Justice Department, and by that time you may 504 00:31:33,640 --> 00:31:38,000 Speaker 1: have a new justice department with new priorities. That's correct. 505 00:31:38,240 --> 00:31:42,120 Speaker 1: This could be a situation where you find some companies, 506 00:31:42,360 --> 00:31:46,680 Speaker 1: some corporate executives to simply wait out the Biden Justice 507 00:31:46,680 --> 00:31:50,280 Speaker 1: Department to see what comes next. Certainly if, Um, you know, 508 00:31:50,320 --> 00:31:53,760 Speaker 1: if President Biden is reelected or another Democrat comes in, 509 00:31:53,920 --> 00:31:56,960 Speaker 1: you could see a lot of continuity between you know, 510 00:31:57,040 --> 00:32:01,160 Speaker 1: democratic administration. That would then, you know, go against any 511 00:32:01,200 --> 00:32:03,280 Speaker 1: companies that are trying to wait, wait this kind of 512 00:32:03,320 --> 00:32:08,600 Speaker 1: a policy out. But UH, the department is making clear 513 00:32:08,840 --> 00:32:13,480 Speaker 1: that there will be near term benefits for companies if 514 00:32:13,520 --> 00:32:17,040 Speaker 1: they have good compliance programs and they show that that 515 00:32:17,400 --> 00:32:20,880 Speaker 1: they're implementing them on a regular basis, and so they're 516 00:32:20,880 --> 00:32:24,640 Speaker 1: trying to give companies incentives. This is always a, you know, 517 00:32:25,000 --> 00:32:28,480 Speaker 1: it's a chicken and egg kind of conundrum that the 518 00:32:28,520 --> 00:32:33,560 Speaker 1: department faces, where they always want to get companies to 519 00:32:33,760 --> 00:32:37,240 Speaker 1: do better, and this is one way. This is this 520 00:32:37,320 --> 00:32:41,000 Speaker 1: is the way that the Biden Justice Department has decided 521 00:32:41,040 --> 00:32:44,680 Speaker 1: to approach the issue and yes, we will see if 522 00:32:44,720 --> 00:32:47,520 Speaker 1: it works and if it can laughs over the long term. 523 00:32:47,640 --> 00:32:52,440 Speaker 1: Marshall Miller, principal associate deputy attorney general, has amplified on 524 00:32:52,520 --> 00:32:56,000 Speaker 1: these remarks this week and it said companies should find 525 00:32:56,000 --> 00:33:00,400 Speaker 1: ways to reward employees for engaging in ethical behavior, not 526 00:33:00,560 --> 00:33:04,200 Speaker 1: just for pushing profits higher. It's part of the same push. 527 00:33:04,440 --> 00:33:08,520 Speaker 1: The Department still has to define more of what they 528 00:33:08,560 --> 00:33:11,320 Speaker 1: want companies to do and how this is going to 529 00:33:11,400 --> 00:33:15,840 Speaker 1: work in practice. And Marshall Miller, who is the principal 530 00:33:15,840 --> 00:33:19,640 Speaker 1: associate deputy attorney general, spoke to a conference of business 531 00:33:19,640 --> 00:33:25,040 Speaker 1: executives and said that it's not just about taking away 532 00:33:25,080 --> 00:33:29,440 Speaker 1: compensation and financial incentives from people who are doing wrongdoing. 533 00:33:30,080 --> 00:33:33,680 Speaker 1: It also matters if you reward people who are doing 534 00:33:33,720 --> 00:33:37,800 Speaker 1: the right thing. And so what Mr Miller has made 535 00:33:37,800 --> 00:33:39,880 Speaker 1: clear is that the department is also going to be 536 00:33:39,960 --> 00:33:46,600 Speaker 1: looking at when companies reward employees and executives with additional compensation, 537 00:33:46,760 --> 00:33:51,240 Speaker 1: additional financial incentives to do the right thing. So this 538 00:33:51,320 --> 00:33:55,520 Speaker 1: is another example of something that you know, is not 539 00:33:55,720 --> 00:33:59,560 Speaker 1: fully defined in terms of how the department is going 540 00:33:59,600 --> 00:34:03,480 Speaker 1: to a approach these issues, so much as the department 541 00:34:03,800 --> 00:34:07,840 Speaker 1: is going to continue to explain as it goes what 542 00:34:08,080 --> 00:34:12,640 Speaker 1: the standards are that should be met and to that end, 543 00:34:13,280 --> 00:34:18,239 Speaker 1: there are also department components that have not even defined 544 00:34:18,760 --> 00:34:26,200 Speaker 1: certain policies that will govern non prosecution agreements with companies, 545 00:34:26,960 --> 00:34:32,680 Speaker 1: and part of Lisa Monico's directive is for the components 546 00:34:32,760 --> 00:34:36,880 Speaker 1: all across the department to write down these rules, and 547 00:34:36,920 --> 00:34:38,840 Speaker 1: so it's going to take a little bit more time 548 00:34:39,480 --> 00:34:44,239 Speaker 1: for individual components to come up with their own rules 549 00:34:44,360 --> 00:34:46,719 Speaker 1: and those will be subject to review as well. So 550 00:34:46,760 --> 00:34:50,440 Speaker 1: I found this very interesting. Miller warrant companies to have 551 00:34:50,520 --> 00:34:55,520 Speaker 1: active policies to prevent employees from using personal mobile devices 552 00:34:55,560 --> 00:34:59,640 Speaker 1: to circumvent corporate accountability. What does he want them to do? 553 00:34:59,680 --> 00:35:03,920 Speaker 1: This stop people from using their iphones, ipads of computers 554 00:35:03,960 --> 00:35:06,880 Speaker 1: at work. Yeah, this is a really fascinating aspect of 555 00:35:07,320 --> 00:35:10,279 Speaker 1: where the department finds itself right now. We live in 556 00:35:10,280 --> 00:35:14,719 Speaker 1: a world with ubiquitous technology and so people working at 557 00:35:14,760 --> 00:35:18,840 Speaker 1: companies are going to have their corporate issue devices and 558 00:35:18,880 --> 00:35:22,120 Speaker 1: they're going to have their personal devices. What Mr Miller 559 00:35:22,200 --> 00:35:26,200 Speaker 1: is saying is that companies should be aware that when 560 00:35:27,000 --> 00:35:31,319 Speaker 1: executives and employees are using their own personal devices, they 561 00:35:31,400 --> 00:35:35,480 Speaker 1: might be doing things that are outside of the corporate 562 00:35:35,520 --> 00:35:40,040 Speaker 1: compliance programs, outside of the corporate rules, they might be 563 00:35:40,120 --> 00:35:43,920 Speaker 1: doing things that are actually violating some of the rules 564 00:35:44,120 --> 00:35:50,000 Speaker 1: and Um procedures for a company. and Mr Miller is 565 00:35:50,040 --> 00:35:55,879 Speaker 1: indicating that companies can be held responsible for activities that 566 00:35:56,440 --> 00:36:01,080 Speaker 1: employees take on their own using their own personal devices, 567 00:36:01,680 --> 00:36:05,440 Speaker 1: and it puts companies in a really difficult position because 568 00:36:05,480 --> 00:36:09,399 Speaker 1: they need to figure out how to juggle not just 569 00:36:10,080 --> 00:36:15,160 Speaker 1: compliance with their corporate issue devices and technology, but also 570 00:36:15,880 --> 00:36:18,840 Speaker 1: making sure that they have some, you know, some rules 571 00:36:19,000 --> 00:36:23,319 Speaker 1: and some compliance procedures in place for employees when they're 572 00:36:23,360 --> 00:36:27,120 Speaker 1: using their own personal devices. Thanks, Chris. That's Bloomberg legal 573 00:36:27,160 --> 00:36:29,920 Speaker 1: reporter Chris Strom, and that's it for this edition of 574 00:36:29,960 --> 00:36:32,640 Speaker 1: the Bloomberg Law show. Remember you can always get the 575 00:36:32,680 --> 00:36:35,920 Speaker 1: latest legal news on our Bloomberg Law podcast. You can 576 00:36:35,960 --> 00:36:40,200 Speaker 1: find them on apple podcasts, spotify and at www dot 577 00:36:40,200 --> 00:36:44,320 Speaker 1: bloomberg dot com, slash podcast, slash law, and remember to 578 00:36:44,400 --> 00:36:47,239 Speaker 1: tune into the Bloomberg law show every week night at 579 00:36:47,280 --> 00:36:50,520 Speaker 1: ten B M Wall Street time. I'm June Grosso and 580 00:36:50,600 --> 00:36:52,040 Speaker 1: you're listening to Bloomberg