WEBVTT - Trump Wants Absolute Immunity 0:00:03.200 --> 0:00:08.000 This is Bloomberg Law with June Brusso from Bloomberg Radio, 0:00:10.480 --> 0:00:14.319 And did you see today that deranged Jack Smith. He's 0:00:14.360 --> 0:00:15.080 the prosecutor. 0:00:15.120 --> 0:00:16.320 He's a deranged person. 0:00:16.840 --> 0:00:19.960 Wants to take away my rights under the First Amendment, 0:00:20.040 --> 0:00:24.480 wants to take away my right of speaking freely and openly. 0:00:25.680 --> 0:00:29.280 Donald Trump never seems to miss an opportunity to ridicule 0:00:29.400 --> 0:00:33.199 Jack Smith, the Special Council who's bringing charges against the 0:00:33.240 --> 0:00:37.840 former president in two cases into jurisdictions. The trial date 0:00:37.920 --> 0:00:41.080 in DC on charges of trying to overturn the twenty 0:00:41.159 --> 0:00:45.000 twenty election is just five months away, but Trump is 0:00:45.000 --> 0:00:49.520 looking for a pass by arguing he has absolute presidential immunity, 0:00:49.720 --> 0:00:53.239 and his attorneys have asked federal Judge Tanya Chuckkin to 0:00:53.360 --> 0:00:57.000 toss out the indictment. Joining me is former federal prosecutor 0:00:57.080 --> 0:01:01.279 Jessica Romp, a professor at Cardozo Law School. Jessica tell 0:01:01.320 --> 0:01:04.720 us about Trump's claim of presidential immunity. 0:01:05.319 --> 0:01:11.160 So their argument is that Trump enjoys absolute presidential immunity 0:01:11.600 --> 0:01:16.040 from prosecution because he claims that the indictment brought by 0:01:16.080 --> 0:01:19.560 the Special Council related to January sixth is based on 0:01:19.880 --> 0:01:23.440 what they contend are his official acts while president. I 0:01:23.520 --> 0:01:26.240 would submit this is the most significant motion that Trump 0:01:26.280 --> 0:01:28.240 has filed to date in all of the cases that 0:01:28.280 --> 0:01:31.640 are pending against him, and that the court's decisions on 0:01:31.720 --> 0:01:35.200 this motion could establish new law regarding whether a president 0:01:35.280 --> 0:01:37.840 is beyond the reach of the criminal law for acts 0:01:37.840 --> 0:01:41.280 taken while president, even after he leaves office. 0:01:41.760 --> 0:01:44.200 What do you make of his attorney's arguments? They make 0:01:44.280 --> 0:01:48.320 several levels of arguments. Are they convincing well? 0:01:48.440 --> 0:01:51.520 The motion is well written, and unlike some arguments we've 0:01:51.560 --> 0:01:53.680 seen from Trump's counsel and some of the cases brought 0:01:53.680 --> 0:01:56.880 against him, this one is well written, it's well presented, 0:01:57.200 --> 0:02:00.760 and it does present a very important issue of law, 0:02:01.240 --> 0:02:04.040 one that the courts will have to take seriously. No 0:02:04.200 --> 0:02:06.960 court has ever squarely decided the question of whether a 0:02:07.160 --> 0:02:12.519 president enjoys absolute immunity from prosecution at all, because there's 0:02:12.600 --> 0:02:15.600 never been a precedent for criminal charges being filed against 0:02:15.680 --> 0:02:18.680 a former president. But there are two issues that the 0:02:18.720 --> 0:02:22.000 courts will have to address in ruling on the motion. 0:02:22.160 --> 0:02:26.080 The first is whether, in fact presidents do enjoy absolute 0:02:26.080 --> 0:02:30.399 immunity from criminal prosecution for acts taken during the presidency, 0:02:30.840 --> 0:02:33.760 and if they find that there is such a thing 0:02:33.840 --> 0:02:37.680 as absolute immunity for president from criminal prosecution, then they 0:02:37.720 --> 0:02:41.040 would have to apply that doctrine of immunity to the 0:02:41.080 --> 0:02:44.320 facts presented in this case. If the court told that 0:02:44.360 --> 0:02:48.400 there is no absolute immunity for a president from prosecution 0:02:48.600 --> 0:02:51.800 even after they leave office, then they don't necessarily have 0:02:51.880 --> 0:02:55.399 to address this second question of whether or not Trump's 0:02:55.440 --> 0:02:58.600 actions fall within the scope of such immunity if they 0:02:58.639 --> 0:03:00.360 find that there isn't such an unity. 0:03:00.600 --> 0:03:04.440 This motion was just filed last Thursday, so prosecutors haven't 0:03:04.480 --> 0:03:07.399 had time to respond. But what do you envision their 0:03:07.600 --> 0:03:11.880 argument will be against the claims of presidential immunity. 0:03:11.960 --> 0:03:14.680 I imagine what they're going to argue is first that 0:03:14.720 --> 0:03:17.560 the courts should not extend the doctrine it's a judge 0:03:17.560 --> 0:03:21.400 made doctrine of immunity for presidents to the criminal context, 0:03:21.480 --> 0:03:24.080 and we can talk about why. I think they have 0:03:24.280 --> 0:03:27.519 very good arguments that the court should not recognize immunity 0:03:27.520 --> 0:03:31.320 from criminal prosecution for former presidents. But secondarily, they will 0:03:31.440 --> 0:03:33.720 argue that even if the court were to find that 0:03:33.840 --> 0:03:37.360 in some cases a president could enjoy immunity from criminal 0:03:37.400 --> 0:03:40.880 prosecution for actions taken while president, that it would not 0:03:41.000 --> 0:03:44.120 apply to the conduct that is alleged in this case, 0:03:44.520 --> 0:03:47.960 because if the courts were to follow the doctrine they 0:03:47.960 --> 0:03:51.320 have applied in the context of civil suits for damages 0:03:51.400 --> 0:03:54.840 brought against a former president, which asks whether or not 0:03:54.920 --> 0:03:58.560 the conduct in question falls within the outer perimeter of 0:03:58.600 --> 0:04:02.400 the president's official response stability, the Special Council would argue 0:04:02.680 --> 0:04:05.680 that these actions do not fall within that outer perimeter. 0:04:06.240 --> 0:04:10.400 Trump's attorneys say the judge should look at Trump's actions 0:04:10.520 --> 0:04:13.720 on their face to determine if they're official, and also 0:04:13.760 --> 0:04:16.359 that even if they were a mix of official and 0:04:16.480 --> 0:04:19.839 campaign related, they should still be covered by the legal 0:04:19.880 --> 0:04:22.520 shield the immunity. Do you agree with that? 0:04:22.880 --> 0:04:25.760 So, in asking whether or not the actions fall within 0:04:25.960 --> 0:04:31.080 the outer perimeter of the president's official responsibility, one has 0:04:31.120 --> 0:04:34.080 to ask at what level of generality do we look 0:04:34.120 --> 0:04:36.840 at the acts. Trump's attorneys invite the court to look 0:04:36.880 --> 0:04:40.160 at them at a very high level of generality and say, 0:04:40.200 --> 0:04:43.800 these are statements on matters of public concern. In his 0:04:43.920 --> 0:04:46.800 tweets and his public statements, for example, at the rally 0:04:46.880 --> 0:04:52.440 on January sixth, he is communicating with state officials about 0:04:52.640 --> 0:04:56.040 elections and communicating with members of the Department of Justice 0:04:56.279 --> 0:05:00.720 about whether or not the presidential election was conducted consistent 0:05:00.839 --> 0:05:04.080 with law. At that level of generality, it's easy to 0:05:04.160 --> 0:05:07.800 characterize his actions as within the outer perimeter of the 0:05:07.839 --> 0:05:10.880 president functions to take care that the laws of the 0:05:10.960 --> 0:05:14.760 United States are faithfully executed. But when you look at 0:05:14.800 --> 0:05:19.600 a more granular level, and also in context of all 0:05:19.680 --> 0:05:22.279 the actions that are alleged in the indictment taken together, 0:05:22.920 --> 0:05:25.760 it's much easier to characterize them not as being within 0:05:25.800 --> 0:05:29.839 the outer perimeter of Trump's official duties as president, but 0:05:30.000 --> 0:05:33.480 instead as crimes or part of a course of conduct 0:05:33.600 --> 0:05:37.360 that was a conspiracy to overturn the election and obstruct 0:05:37.440 --> 0:05:41.200 the official proceedings of Congress and defraud the United States, 0:05:41.200 --> 0:05:44.320 as alleged in the indictment. And so the case law 0:05:44.440 --> 0:05:47.640 does hold that the court should not look into the 0:05:47.760 --> 0:05:51.560 motives behind a particular action and instead look at the 0:05:51.640 --> 0:05:56.200 acts objectively and whether or not they further a presidential function. 0:05:56.720 --> 0:05:59.280 But saying that the court should not look at motives 0:05:59.360 --> 0:06:01.400 does not mean that the court can't look at the 0:06:01.440 --> 0:06:03.360 statements and the actions in context. 0:06:04.160 --> 0:06:08.239 Trump's attorneys also point to his acquittal in the Senate 0:06:08.240 --> 0:06:11.560 impeachment trial in the days after the January sixth attack 0:06:11.680 --> 0:06:14.800 and argue that he can't be tried again after the 0:06:14.839 --> 0:06:17.919 Senate failed to convict and remove him from office. 0:06:18.480 --> 0:06:21.880 I do not think the court will agree with that analysis. 0:06:22.200 --> 0:06:25.599 The language that they point to has to do with 0:06:26.240 --> 0:06:29.239 I think the court would find whether a president could 0:06:29.320 --> 0:06:34.560 be indicted and prosecuted while in office, and if one 0:06:34.600 --> 0:06:38.240 goes back and considers, for example, the analysis in the 0:06:38.279 --> 0:06:41.640 Office of Legal Council memo that was prepared initially in 0:06:41.720 --> 0:06:45.760 nineteen seventy three during the Watergate era, which looked into 0:06:45.839 --> 0:06:48.560 whether or not a sitting president could be subject to 0:06:48.640 --> 0:06:53.400 prosecution while in office. That memo, which was then reaffirmed 0:06:53.520 --> 0:06:56.320 in two thousand by the Office of Legal Council, essentially 0:06:56.400 --> 0:07:00.200 held that because of separation of powers concerned primarily, a 0:07:00.240 --> 0:07:05.039 sitting president could not be prosecuted, but instead would have 0:07:05.120 --> 0:07:09.000 to be subject to impeachment first and removed from office 0:07:09.120 --> 0:07:12.960 before the president would be amenable to criminal prosecution. What 0:07:13.040 --> 0:07:15.840 Trump's lawyers are doing, in effect, is taking that same 0:07:16.000 --> 0:07:19.760 language that provides for the impeachment of a president and 0:07:19.800 --> 0:07:23.880 then contemplates that a president could be criminally prosecuted after 0:07:24.120 --> 0:07:27.480 being removed from office to say that the exclusive remedy 0:07:27.800 --> 0:07:30.600 for a president who commits crimes while in office is 0:07:30.640 --> 0:07:34.640 to be impeached, and that a criminal prosecution could only 0:07:34.680 --> 0:07:38.040 follow as an additional consequence if the president had been 0:07:38.080 --> 0:07:40.800 in fact convicted in the Senate. I think that's not 0:07:40.920 --> 0:07:42.800 a fair reading of that language, and I don't think 0:07:42.800 --> 0:07:43.720 a court would agree with it. 0:07:44.160 --> 0:07:49.560 Has Judge Chuckkin ruled on an issue involving presidential immunity before. 0:07:50.280 --> 0:07:52.960 She has in a different context. It was a case, 0:07:53.000 --> 0:07:57.760 I believe, involving former President Obama who had been sued 0:07:58.120 --> 0:08:02.560 by individuals. She held that he enjoyed absolute immunity from 0:08:02.600 --> 0:08:06.040 that civil action against him in his individual capacity. She 0:08:06.120 --> 0:08:10.480 has not ruled on a question of immunity from criminal prosecution. 0:08:10.840 --> 0:08:14.080 In a case that presents many of the same facts 0:08:14.400 --> 0:08:18.440 in the civil context. Judge Meta from the DC District 0:08:18.440 --> 0:08:22.720 Court ruled that former President Trump did not enjoy absolute 0:08:22.720 --> 0:08:26.120 immunity from civil prosecution with respect to many of the 0:08:26.160 --> 0:08:28.440 claims in a case that was brought by members of 0:08:28.480 --> 0:08:31.440 Congress and members of the Capitol Police who were injured 0:08:31.520 --> 0:08:35.000 in the January sixth ryot. That case is pending before 0:08:35.080 --> 0:08:38.880 the DC Circuit Court of Appeals. It's been pending since December, 0:08:39.240 --> 0:08:42.000 and that case I think will be very instructive to 0:08:42.520 --> 0:08:45.880 Judge Chutkin in ruling on whether or not if she 0:08:45.960 --> 0:08:48.320 gets to the question of whether much of the conduct 0:08:48.320 --> 0:08:51.440 alleged in the Special Council of January sixth indictment falls 0:08:51.440 --> 0:08:55.520 within the outer perimeter of his official responsibilities. If the 0:08:55.600 --> 0:08:58.959 DC Circuit renders an opinion holding that it does not 0:08:59.200 --> 0:09:01.840 fall within the outer perimeter, that would be very instructive 0:09:01.880 --> 0:09:04.360 to her if she gets to that problem. Obviously, in 0:09:04.400 --> 0:09:07.600 the meantime, she may also find persuasive the ruling of 0:09:07.640 --> 0:09:10.600 her fellow judge on her court Dutch Meta that these 0:09:10.600 --> 0:09:13.200 actions largely did not fall within that outer perimeter. 0:09:13.800 --> 0:09:17.760 Tump is the first former president to face a federal indictment. 0:09:17.960 --> 0:09:21.920 So this is uncharted territory. What has the Supreme Court 0:09:22.000 --> 0:09:25.679 ruled in the past in the area of presidential immunity? 0:09:26.240 --> 0:09:29.960 So the Supreme Court has ruled on presidential immunity in 0:09:30.000 --> 0:09:33.640 the context of damages, actions and civil suits. In the 0:09:33.640 --> 0:09:37.680 most important cases a case called Nixon versus Fitzgerald, in 0:09:37.720 --> 0:09:40.520 which the Court said there is a doctrine of absolute 0:09:40.559 --> 0:09:45.640 presidential immunity that shields the president even after he leaves office, 0:09:45.920 --> 0:09:50.839 from damage's actions brought by individuals for actions taken within 0:09:51.040 --> 0:09:56.400 the outer perimeter of the president's official responsibilities. The court 0:09:56.559 --> 0:10:00.320 in that case drew on precedents from the con text 0:10:00.559 --> 0:10:04.720 of other executive officials, such as prosecutors, but it also 0:10:04.800 --> 0:10:07.840 looked to immunity doctrine that court had developed in the 0:10:07.840 --> 0:10:12.040 context of judges, other officials whom the court said would 0:10:12.160 --> 0:10:15.480 if they were not provided immunity, would be potentially subject 0:10:15.559 --> 0:10:20.600 to damages suits brought by aggrieved individuals who would contend 0:10:20.800 --> 0:10:24.120 that these officials had, in the course of their duties 0:10:24.200 --> 0:10:26.680 injured them and that they were entitled to damages. And 0:10:26.960 --> 0:10:31.000 those cases that recognized absolute immunity for prosecutors and judges 0:10:31.040 --> 0:10:35.400 that essentially, if we don't adopt this doctrine, these individuals 0:10:35.400 --> 0:10:38.680 who perform these very public and important duties will be 0:10:38.760 --> 0:10:42.520 distracted and concerned as they perform their duties about the 0:10:42.559 --> 0:10:46.840 potential of being subject to innumerable suits. And so essentially 0:10:46.880 --> 0:10:51.280 we have to balance the potential interest that some civil 0:10:51.280 --> 0:10:55.439 litigants would have in collecting damages against such individuals rightfully 0:10:55.840 --> 0:10:59.839 against the public interest in preserving the ability of these 0:11:00.000 --> 0:11:03.480 officials to do their jobs in the public interest without 0:11:03.520 --> 0:11:08.280 being overly concerned about being subject to suit in the future. 0:11:08.400 --> 0:11:10.880 And the Court recognized that there's obviously a loss in 0:11:10.880 --> 0:11:13.920 some cases for people who would have meritorious claims, but 0:11:14.000 --> 0:11:17.240 that it was counterbalanced by the public interest in having 0:11:17.320 --> 0:11:21.000 these officials be able to perform their duties without such 0:11:21.080 --> 0:11:25.840 concerns and distractions, And so in Nixon versus Fitzgerald, the 0:11:25.880 --> 0:11:28.760 Court said, essentially, we're going to adopt that reasoning which 0:11:28.760 --> 0:11:33.120 applies with great force to the president of the United States, who, 0:11:33.120 --> 0:11:35.679 in addition, as to whom there's real separation of powers 0:11:35.720 --> 0:11:39.720 concerns if the courts were to intrude upon the executive's 0:11:39.720 --> 0:11:43.640 ability to perform his functions as president. But the Court 0:11:43.840 --> 0:11:47.600 again in Nixon versus Fitzgerald, talked about how those cases 0:11:48.280 --> 0:11:52.600 did not opine on the availability of criminal prosecution, and 0:11:52.720 --> 0:11:55.320 in fact, in Nixon versus Fitzgerald, the Court was very 0:11:55.400 --> 0:11:58.360 clear to say, and it has said in subsequent cases 0:11:58.360 --> 0:12:01.480 on the question of absolute presidential immunity, that those cases 0:12:01.480 --> 0:12:05.320 are limited to the question of civil damages in civil 0:12:05.360 --> 0:12:08.320 suits brought by private parties. So I think there's a 0:12:08.440 --> 0:12:11.440 very strong argument to be made that the Court would 0:12:11.520 --> 0:12:15.440 not extend that doctrine of immunity to criminal prosecution. 0:12:16.240 --> 0:12:19.600 What about the case of Trump the Vance where the 0:12:19.640 --> 0:12:24.040 Supreme Court ruled on the Manhattan DA's grand jury subpoena 0:12:24.280 --> 0:12:27.360 to Mazar's Trump's accounting firm. 0:12:28.000 --> 0:12:30.920 I think that's instructive as well, and that builds on 0:12:31.000 --> 0:12:34.520 this idea that the Court sees a distinction between criminal cases, 0:12:34.840 --> 0:12:39.800 including investigations and prosecutions, and civil lawsuits. In the Trump 0:12:39.920 --> 0:12:42.400 Vivance case, I mean that involved the subpoena from a 0:12:42.400 --> 0:12:46.640 state grand jury seeking documents from Trump while he was president, 0:12:47.120 --> 0:12:49.880 and he asserted absolute immunity and that he shouldn't have 0:12:49.960 --> 0:12:53.640 to respond to that state grand jury subpoena, and the 0:12:53.640 --> 0:12:59.840 Court said, the public interest in criminal investigations is really paramount. 0:13:00.200 --> 0:13:02.920 It's a similar interest that the Court talked about in 0:13:02.960 --> 0:13:06.640 the United States versus Nixon when President Nixon as president 0:13:06.720 --> 0:13:09.000 was ordered to comply with a subpoena from the grand 0:13:09.080 --> 0:13:14.000 jury working with the Special prosecutor Archibald Cox, seeking evidence 0:13:14.080 --> 0:13:17.800 in the grand jury's investigation related to Watergate. So in 0:13:17.840 --> 0:13:21.319 both cases, the Court has talked about, essentially the paramount 0:13:21.480 --> 0:13:25.680 public interest in criminal prosecutions and investigations, and how that 0:13:25.800 --> 0:13:29.440 is really quite distinct from the private interests involved in 0:13:29.600 --> 0:13:33.040 civil lawsuits against the former president or president. 0:13:33.520 --> 0:13:37.360 So Trump is all about delay with these cases, and 0:13:37.520 --> 0:13:39.640 his lawyer said they'll try to take this to the 0:13:39.640 --> 0:13:44.160 Supreme Court if they lose at the DC's Circuit rulings 0:13:44.200 --> 0:13:49.000 denying motions to dismiss an indictment normally wouldn't be appealable 0:13:49.280 --> 0:13:52.040 until after a verdict, right, But is this different? 0:13:52.679 --> 0:13:54.800 This is different. And that's one of the reasons why 0:13:54.840 --> 0:13:57.320 I think this motion is so significant, not just on 0:13:57.440 --> 0:13:59.600 the merits and for the new law that it could 0:13:59.640 --> 0:14:02.440 estound Bush once it's decided, but for the fact that 0:14:02.520 --> 0:14:04.840 the motion, because of its nature, and the fact that 0:14:04.880 --> 0:14:07.400 I think it is going to be deemed immediately appealable 0:14:07.600 --> 0:14:11.520 because of the so called collateral order doctrine, could derail 0:14:11.640 --> 0:14:15.760 the trial simply by going through the appellate process, and 0:14:15.800 --> 0:14:18.559 the time it will take for the matter to be decided, 0:14:18.920 --> 0:14:21.640 and how that may well go beyond the March twenty 0:14:21.720 --> 0:14:24.960 twenty four trial date that's been established under the collateral 0:14:25.120 --> 0:14:29.320 ordered doctrine, a decision by a court that can't be 0:14:29.360 --> 0:14:33.120 effectively reviewed on appeal from a final judgment that involves 0:14:33.160 --> 0:14:35.920 an important issue that separate from the merits of the action, 0:14:36.400 --> 0:14:41.240 can be appealed before the action is fully resolved. And 0:14:41.320 --> 0:14:44.000 I think that the claim that the former president is 0:14:44.040 --> 0:14:47.680 advancing that he's entitled to absolute presidential immunity from prosecution 0:14:48.120 --> 0:14:51.360 would meet that standard. It's independent from the merits of 0:14:51.400 --> 0:14:54.160 the case and whether or not he's guilty of the charges. 0:14:54.640 --> 0:14:58.120 And if he were right that he enjoys absolute immunity 0:14:58.120 --> 0:15:03.360 from prosecution, that interest wouldn't be vindicated by being resolved 0:15:03.680 --> 0:15:06.800 after a conviction. If there were a conviction, he's effectively 0:15:06.880 --> 0:15:09.600 arguing I shouldn't even have to stand trial. And so 0:15:09.720 --> 0:15:11.520 I think that there is a very good chance that 0:15:11.560 --> 0:15:15.040 the appellate courts will here that issue before any trial. 0:15:15.600 --> 0:15:17.960 Jessica, if you look at this and we don't have 0:15:18.040 --> 0:15:21.520 the prosecutions brief yet, would you say that it's an 0:15:21.600 --> 0:15:23.080 uphill battle for Trump. 0:15:23.640 --> 0:15:26.680 I expect that the trial court and the DC Circuit 0:15:26.720 --> 0:15:29.600 will rule against Trump. But when it gets to the 0:15:29.720 --> 0:15:32.600 US Supreme Court, and I do anticipate the Supreme Court 0:15:32.640 --> 0:15:36.520 would take this case, then it's a much harder outcome 0:15:36.560 --> 0:15:39.600 to predict. I think on the merits that the Supreme 0:15:39.640 --> 0:15:43.320 Court should rule against him, including on this threshold issue 0:15:43.320 --> 0:15:46.560 of whether or not the doctrine of absolute presidential immunity 0:15:47.080 --> 0:15:52.000 extends to criminal prosecutions. But it's hard to predict how 0:15:52.040 --> 0:15:54.800 this Supreme Court will rule. And if they get to 0:15:54.880 --> 0:15:57.440 the second question, which is whether or not these acts 0:15:57.480 --> 0:16:02.200 fall within the outer perimeter of the presidential functions and duties, 0:16:02.640 --> 0:16:05.120 then again it's going to turn on how the Court 0:16:05.200 --> 0:16:09.200 chooses to characterize the acts at what level of generality, 0:16:09.520 --> 0:16:12.360 and whether they look at them collectively and in context 0:16:12.600 --> 0:16:17.120 or essentially separate them out individually the way the former 0:16:17.160 --> 0:16:21.120 president has invited them to. I also think that there's 0:16:21.160 --> 0:16:24.840 a sort of a larger context here that may influence 0:16:24.880 --> 0:16:28.840 how the Court perceives the consequences of its ruling decisions 0:16:28.880 --> 0:16:33.560 about recognizing immunity, and to what extent do require courts 0:16:33.560 --> 0:16:36.600 to consider the consequences of ruling one way or the 0:16:36.760 --> 0:16:39.640 other explicitly in terms of thinking about the impact on 0:16:39.680 --> 0:16:42.400 the public interest and seeing certain kinds of cases proceed, 0:16:42.680 --> 0:16:46.480 and also the impact on the president's ability to carry 0:16:46.480 --> 0:16:49.920 out their functions without being overly concerned about the consequences 0:16:49.960 --> 0:16:53.640 down the road. In terms of lawsuits or prosecutions. Here 0:16:53.720 --> 0:16:56.880 we have an individual, the former president who's the charge 0:16:56.920 --> 0:17:00.120 defendant in this case, who says that he should not 0:17:00.240 --> 0:17:04.520 be subject to prosecution in part because of the impact 0:17:04.600 --> 0:17:07.960 on future presidents and thinking about their ability to carry 0:17:08.000 --> 0:17:10.800 out their duties without being distracted by worries that they 0:17:10.880 --> 0:17:14.679 themselves would be hauled into court subsequently and charge. And 0:17:14.960 --> 0:17:17.920 he is running for president and saying on the campaign 0:17:17.960 --> 0:17:20.840 trail that if re elected, he would direct his attorney 0:17:20.880 --> 0:17:26.040 general to prosecute his political enemies, including now President Biden. 0:17:26.440 --> 0:17:28.359 And so I do think that the part of the 0:17:28.440 --> 0:17:31.399 mix and the court evaluating the consequences of its ruling 0:17:31.440 --> 0:17:34.240 would be if they do rule that a former president 0:17:34.320 --> 0:17:38.320 can be subject to criminal prosecution while acts while president, 0:17:38.920 --> 0:17:43.159 will that mean that we would subsequently see future prosecutions 0:17:43.160 --> 0:17:45.560 of former presidents sort of ramp up in the way 0:17:45.560 --> 0:17:48.160 that we are seeing essentially an escalation in the threat 0:17:48.200 --> 0:17:50.240 of impeachment for presidents while in office. 0:17:50.440 --> 0:17:52.920 Yeah, that's an interesting point. I want to ask you 0:17:53.000 --> 0:17:56.439 about it hearing next week on the prosecution's motion for 0:17:56.720 --> 0:17:59.680 a gag order on Trump. What are the things that 0:18:00.280 --> 0:18:02.840 hast away when considering a gag order. 0:18:03.520 --> 0:18:08.800 The judge is going to be mindful of the prohibition 0:18:09.000 --> 0:18:14.160 essentially on imposing a prior restraint on an individual from 0:18:14.160 --> 0:18:17.680 exercising their First Amendment rights of freedom of speech. In 0:18:17.720 --> 0:18:21.159 this case, the individual involved also is running for presidents, 0:18:21.200 --> 0:18:25.399 so he has contended that his speech about the case 0:18:25.840 --> 0:18:30.119 overlaps with his political speech and furtherance of his candidacy. 0:18:30.520 --> 0:18:32.919 So on the one hand, the judge is going to 0:18:32.960 --> 0:18:36.119 be very careful not to run a foul of the 0:18:36.119 --> 0:18:40.800 former president's First Amendment rights, and courts have generally been 0:18:41.119 --> 0:18:45.679 very hesitant about any order that in advance restrains an 0:18:45.680 --> 0:18:49.560 individual from exercising their First Amendment rights. On the other hand, 0:18:49.720 --> 0:18:52.720 the judge has a duty and is authorized by law 0:18:52.800 --> 0:18:58.679 to take appropriate action to preserve the fair administration of justice. 0:18:58.800 --> 0:19:02.760 And there are local court rules that effectively mirror the 0:19:02.840 --> 0:19:07.399 rules of professional conduct that tell lawyers that they shall 0:19:07.440 --> 0:19:11.600 not make statements extra judicially outside of court that pose 0:19:11.840 --> 0:19:16.119 a material risk of materially prejudicing a preceding. And so 0:19:16.240 --> 0:19:19.000 the question before the judge with respect to the former 0:19:19.040 --> 0:19:21.920 president is to what extent can she impose an order 0:19:22.280 --> 0:19:25.160 on him as a party as opposed to a lawyer 0:19:25.760 --> 0:19:29.480 to try to ensure that he does not materially prejudice 0:19:29.680 --> 0:19:33.000 that proceeding that is unfolding before her and will eventually 0:19:33.600 --> 0:19:37.119 lead to a trial. So she has to balance those concerns, 0:19:37.359 --> 0:19:39.520 and one of the things she'll be taking into account 0:19:39.640 --> 0:19:42.320 is the record of his statements up until this point 0:19:42.600 --> 0:19:46.840 that pose the risk of materially prejudicing the preceding, including 0:19:46.880 --> 0:19:50.000 by intimidating witnesses. And so she's going to be looking, 0:19:50.040 --> 0:19:52.600 I think, very carefully at the record of his statements 0:19:52.640 --> 0:19:55.240 up until this point, whether they appear to have crossed 0:19:55.240 --> 0:19:57.480 that line or not, which and if they have, then 0:19:57.480 --> 0:20:00.240 she's on a much firmer footing and restraining him. Oh, 0:20:00.280 --> 0:20:03.480 whether they don't come close to that line, in which 0:20:03.520 --> 0:20:05.879 case perhaps it would not be warranted for hitting her 0:20:06.040 --> 0:20:07.560 pose restraint on it. 0:20:07.560 --> 0:20:10.000 It'll be interesting to see if she follows in the 0:20:10.000 --> 0:20:13.479 footsteps of the New York judge who issued a limited 0:20:13.520 --> 0:20:16.960 gag order last week. Thanks so much for your insights, Jessica. 0:20:17.160 --> 0:20:21.480 That's Professor Jessica Roth of Cardozo Law School. Coming up next, 0:20:21.720 --> 0:20:25.760 the star witness testifies against Sam Bankman Freed. This is Bloomberg. 0:20:26.080 --> 0:20:29.480 Caroline Ellison took the witness stand this afternoon and within 0:20:29.600 --> 0:20:33.440 minutes pointed to her former boss and boyfriend, Sam Bankman 0:20:33.520 --> 0:20:37.080 Freed as the man responsible for the loss of billions 0:20:37.080 --> 0:20:42.560 in customer funds and the collapse of the cryptocurrency platform FTX. Ellison, 0:20:42.600 --> 0:20:45.720 who made a deal with prosecutors in exchange for her testimony, 0:20:45.920 --> 0:20:49.760 portrayed Bankman Freed as the brains behind the company operation, 0:20:50.080 --> 0:20:54.280 who knowingly transferred more than fourteen billion dollars of FTX 0:20:54.400 --> 0:20:57.960 customer funds to the sister Hedge fund, directed her to 0:20:58.040 --> 0:21:02.440 ignore concerns about auditors, and inflated Alameda's balance sheet to 0:21:02.520 --> 0:21:06.400 secure loans. Joining me is Bloomberg Legal reporter Ava. Benny Morrison, 0:21:06.440 --> 0:21:09.240 who's covering the trial, set the scene for us. Ava. 0:21:09.359 --> 0:21:12.119 What was it like when Ellison walked into the courtroom? 0:21:12.480 --> 0:21:16.560 Caroline Ellison walked in this afternoon. She was with a 0:21:16.600 --> 0:21:19.680 couple of FBI agents. She was wearing a gray suit 0:21:19.800 --> 0:21:21.920 jacket in a pink dress. She didn't look at Sam 0:21:21.960 --> 0:21:24.600 when she walked past him and took a seat in 0:21:24.680 --> 0:21:28.000 the witness box. Sam just briefly glanced at her as 0:21:28.040 --> 0:21:30.480 she walked past. There was a moment where she was 0:21:30.520 --> 0:21:32.680 asked to point out Sam, and she took quite a 0:21:32.720 --> 0:21:34.960 long time to figure out where he was sitting in 0:21:35.000 --> 0:21:37.879 the courtroom and then acknowledged that he's sitting there. He 0:21:37.960 --> 0:21:41.520 was wearing a suit before getting into her testimony. 0:21:41.400 --> 0:21:44.159 And right off the bat, she admitted to crimes just 0:21:44.200 --> 0:21:45.600 as the prior witness. 0:21:45.240 --> 0:21:47.919 Had done exactly, and I think the prosecutors do that 0:21:48.119 --> 0:21:52.040 to be open and upfront with the jewelry that these 0:21:52.040 --> 0:21:55.600 corporating witnesses have pled guilty to crimes. They've admitted to 0:21:56.160 --> 0:21:59.320 being involved with some of the allegations that Sam Bacon 0:21:59.359 --> 0:22:02.400 Freed is used of as well. So she said, yes, 0:22:02.560 --> 0:22:05.359 he directed me to commit crimes. She said that she 0:22:05.440 --> 0:22:09.720 committed fraud and she was involved in using STX customer 0:22:09.760 --> 0:22:13.399 funds through a hedge fund which was CEO of before 0:22:13.400 --> 0:22:16.359 it collapsed, Almeter Research, and she knew that some of 0:22:16.359 --> 0:22:19.879 those funds were being used to repay creditors. She also 0:22:19.960 --> 0:22:25.080 spoke about how some financial statements were manipulated, essentially given 0:22:25.119 --> 0:22:28.960 to investors, which helped Bankment Free raise more money as 0:22:29.160 --> 0:22:31.200 FTX was in real financial trouble. 0:22:31.640 --> 0:22:35.360 Did she blame bankman Freed for everything? Did she take 0:22:35.400 --> 0:22:36.560 any responsibility? 0:22:37.240 --> 0:22:40.320 She did? She spoke about how she came to know 0:22:40.600 --> 0:22:45.439 Alameda had these special privileges on FTX, and she spoke 0:22:45.560 --> 0:22:50.600 about outlining the probability of Alameter being unable to pay 0:22:51.000 --> 0:22:54.119 some of its loans back to creditors and returning some 0:22:54.200 --> 0:22:57.360 of those customer funds to FGX a couple of years 0:22:58.000 --> 0:23:01.680 or at least a year before FtF collapsed. So, while 0:23:01.720 --> 0:23:05.119 she was alleging that Sam was fully aware that Alameda 0:23:05.240 --> 0:23:08.560 had this relationship with FTX, and that she had conversations 0:23:08.560 --> 0:23:11.680 with him about it and they discussed figures and went 0:23:11.720 --> 0:23:15.040 through spreadsheets together, she seemed to be pretty open and 0:23:15.160 --> 0:23:18.119 detailed about her own involvement in all of this as well. 0:23:18.440 --> 0:23:21.520 She spoke quite confidently, She was very matter of fact. 0:23:22.080 --> 0:23:25.880 She answered each question in a very detailed way. 0:23:26.480 --> 0:23:29.439 Was Sam Bagmunfreed the person who was directing her at 0:23:29.480 --> 0:23:31.960 all times? According to her testimony. 0:23:31.840 --> 0:23:34.320 Yes, she said a number of times that Sam told 0:23:34.359 --> 0:23:37.240 her to do X or Sam directed her to do Y. 0:23:37.880 --> 0:23:40.640 Was very clear from her testimony that she was alleging 0:23:40.720 --> 0:23:44.960 he was the brains of the operation and called the 0:23:45.000 --> 0:23:47.760 shots on what she should be doing. She also said 0:23:47.800 --> 0:23:51.359 that you know, Sam wasn't CEO when she's CEO of 0:23:51.440 --> 0:23:54.919 Elament Research. She often turned to him for advice and 0:23:55.000 --> 0:23:57.240