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Speaker 1: This is Bloomberg Law, with June Brusso from Bloomberg Radio.

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Speaker 1: The House has voted to hold former White House Chief

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Speaker 1: of Staff Mark Meadows in criminal contempt of Congress for

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Speaker 1: defying a subpoena issued by the committee investigating the January

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Speaker 1: sixth Capital riot. Meadows had been cooperating with the committee,

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Speaker 1: turning over more than nine thousand pages of records, including

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Speaker 1: texts and emails, but in an about phase, he refused

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Speaker 1: to appear for a scheduled deposition or to turn over

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Speaker 1: any more documents. Republican Representative Liz Cheney read aloud some

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Speaker 1: of the tech sent to Meadows from his son and

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Speaker 1: Fox News host during the riot. He's got to condemn

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Speaker 1: this asap. The Capitol Police tweet is not enough. Donald

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Speaker 1: Trump Junior texted. Meadows responded, quote, I'm pushing it hard.

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Speaker 1: I agree. President needs to tell people in the Capital

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Speaker 1: to go home. This is hurting all of us. He

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Speaker 1: is destroying his legacy. Laura Ingram wrote, please get him

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Speaker 1: on TV, destroying everything you have accomplished. Brian Kilmead texted,

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Speaker 1: joining me as former federal prosecutor Robert Mintz, a partner,

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Speaker 1: McCarter and English Bob. How significant is the vote to

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Speaker 1: home Meadows in criminal contempt? It was a near party

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Speaker 1: line vote. Well, it is a big deal because what

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Speaker 1: we have here is a majority of the House of Representatives,

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Speaker 1: albeit a democratically controlled House, found that one of their

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Speaker 1: own needs to be indicted for lack of cooperation. What

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Speaker 1: we have here is Mark Meadows, who is a former

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Speaker 1: congressman from North Carolina, and who is, by the way,

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Speaker 1: familiar with congressional oversight and who himself had argued for

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Speaker 1: congressional oversight when he was a member of Congress during

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Speaker 1: the Obama administration, but is refusing to testify before the

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Speaker 1: House in connection with the January six committee. So the

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Speaker 1: fact that the House Committee voted to hold him in

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Speaker 1: contempt on the full House later approved that really speaks

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Speaker 1: to how central they believe Meadows is to their understanding

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Speaker 1: of what happened on January six. Is the Justice Department

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Speaker 1: likely to charge Meadows, Well, that's really the great question here.

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Speaker 1: What we do know is that this is a giant headache,

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Speaker 1: both politically and legally for Attorney General Merrick Garland. This

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Speaker 1: is not a decision that he is likely happy to

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Speaker 1: be faced with, but ultimately this will rest at his feet.

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Speaker 1: It will be handled initially by the U. S. Attorney's

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Speaker 1: Office in the District of Columbia. But these decisions, certainly

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Speaker 1: something as significant as holding a former presidential chief of

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Speaker 1: staff in contempt of Congress, that's a decision that's going

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Speaker 1: to be made by Merrick Garland himself. So it's a

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Speaker 1: difficult decision here because, on the one hand, if you

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Speaker 1: charge him for failing to comply with the subpoena, he

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Speaker 1: does risk creating a president in which future House of Representatives,

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Speaker 1: which could be controlled by the Republicans as early as

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Speaker 1: next year, are in a situation where they could then

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Speaker 1: seek to get testimony from current or former aids to

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Speaker 1: the president, and that's something that Congress has on the

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Speaker 1: Department of Justice has historically been fairly deferential to. They

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Speaker 1: have allowed sitting on former chiefs of staff to invoke

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Speaker 1: executive privilege with regard to the communications they had with

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Speaker 1: the president. On the other hand, if he declines to

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Speaker 1: pursue this case criminally, he is in some sense hamstringing

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Speaker 1: the committee's ability to investigate fully the attack on January six.

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Speaker 1: So it's a difficult decision for Merrick Garland since the

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Speaker 1: Department of Justice is prosecuting Steve Bannon, does it follow

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Speaker 1: that it should prosecute Meadows. I think this is a

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Speaker 1: very different analysis from the analysis that the Department of

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Speaker 1: Justice engaged in when it made a decision to indicte

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Speaker 1: Steve Bannon for contempt of Congress. For starters, Bannon was

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Speaker 1: not a White House official during the events surrounding the

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Speaker 1: January six insurrection. So that's a significant fact. You have

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Speaker 1: Mark Meadows, who not only was employed by the White House,

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Speaker 1: but he was President Trump's chief of staff during the insurrection.

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Speaker 1: He was intimately involved in providing information to the president,

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Speaker 1: providing him advice on receiving communications from the president. It

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Speaker 1: puts him in the eye of the storm, so to speak.

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Speaker 1: But it also puts him in a position to claim

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Speaker 1: executive privilege in a much stronger way than Steve Bannon can.

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Speaker 1: So how does it cut Because Meadows could say, well,

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Speaker 1: I turned over as much as I could turn over.

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Speaker 1: I cooperated with the committee. But now we've reached a

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Speaker 1: point where I can't turn it over anymore and I

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Speaker 1: can't discuss any of this. I mean, is it in

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Speaker 1: his favor that he turned over nine thousand pages or

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Speaker 1: does it cut against him. Well, it does show some

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Speaker 1: effort to cooperate with the committee, but he has not

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Speaker 1: yet testified and answered questions about these issues before the committee.

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Speaker 1: He's claiming that executive privilege prevents him from answering these questions,

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Speaker 1: and he's refusing to appear to answer even based the

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Speaker 1: questions that the Committee says still involve a claim of

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Speaker 1: executive privilege. And the Committee does point to a series

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Speaker 1: of examples of areas of inquiry which they say even

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Speaker 1: if executive privilege were to apply, which they dispute, it

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Speaker 1: would certainly not come into play if Meadows were asked

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Speaker 1: to talk about certain topics. For example, the Committee is

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Speaker 1: going to ask Meadows to talk about conversations he had

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Speaker 1: with the chief of staff to the acting Defense Secretary

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Speaker 1: during the January six insurrection. They want to ask him

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Speaker 1: about text messages he exchanged allegedly with the organizer of

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Speaker 1: the January six rally on the Ellipse that day that

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Speaker 1: preceded the attack. They want to ask him about apparent

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Speaker 1: efforts to encourage Republican lawmakers in certain states to send

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Speaker 1: alternate slates of electors to Congress in an attempt to

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Speaker 1: undo President Biden's win, and they also want to talk

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Speaker 1: about claims of election fraud that Meadows allegedly forwarded to

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Speaker 1: the Department of Justice for further investigations. The Committee's position is,

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Speaker 1: even if there is an executive privilege that attaches here

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Speaker 1: to some of the areas of inquiry, they certainly don't

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Speaker 1: apply to these topics, and therefore he needs to appear

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Speaker 1: before the committee to answer these questions. The committee claims

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Speaker 1: that Meadows waived executive privilege by turning over all the

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Speaker 1: documents and by writing a book, and are in his

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Speaker 1: claims of privilege further weakened by the DC Court of

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Speaker 1: Appeals ruling rejecting former President Trump's claim of executive privilege

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Speaker 1: with regard to White House documents held at the National Archives.

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Speaker 1: And that's basically resting on the fact that President Biden,

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Speaker 1: who currently is the chief executive and has the right

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Speaker 1: to invoke the privilege, has decided not to assert executive

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Speaker 1: privilege over these records in communications and testimonies sought from

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Speaker 1: former Trump administration officials in connection with the Select Committee's probe.

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Speaker 1: So that question has been answered to some extent, But

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Speaker 1: at the same time, there are some issues related to

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Speaker 1: executive privilege, which remain unresolved, and Mr Meadows lawyer in

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Speaker 1: a lastic effort to try to convince the Committee not

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Speaker 1: to refer Mr Meadows over to the Department of Justice

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Speaker 1: for criminal contempt charges. He has argued that Meadows is

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Speaker 1: invoking the executive privilege argument in good faith, and in

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Speaker 1: order to convict somebody of a criminal charge, they have

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Speaker 1: to be acting in bad faith. It's not Mark meadows role,

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Speaker 1: or frankly, his attorney's role. He argues to determine whether

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Speaker 1: or not that assertion of executive privilege is going to

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Speaker 1: be upheld or not. As long as he is arguing

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Speaker 1: in good faith that executive privilege is being invoked by

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Speaker 1: former President Trump, that is his defense, and that is

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Speaker 1: why the Committee is focusing on lots of areas where

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Speaker 1: they're arguing executive privilege would never apply, even if it

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Speaker 1: would ultimately be upheld by the court. But as you say,

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Speaker 1: so far, the courts have viewed it unfavorably and narrowly

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Speaker 1: construed executive privilege to say that it really belongs to

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Speaker 1: the current occupant of the White House, and a former

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Speaker 1: president cannot invoke a sweeping exercise of executive privilege as

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Speaker 1: former President Trump is attempting to do here. It's less

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Speaker 1: than two weeks now that Trump hass to appeal that

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Speaker 1: DC Circuit decision to the Supreme Court. So if the

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Speaker 1: Supreme Court takes the case, we'll have to wait for

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Speaker 1: that decision. If it doesn't take the case, then the

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Speaker 1: d C Circuits decision is the final word. Yeah, that's right,

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Speaker 1: and then I think, as you say, to invoke executive

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Speaker 1: privilege when that decision has essentially been final by the

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Speaker 1: d C Circuit will be a much tougher hill to climb.

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Speaker 1: Right now, it's still undecided because the Supreme Court may

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Speaker 1: take the case, and the Supreme Court may decide something

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Speaker 1: different than the d C Circuit. So that's why Mark

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Speaker 1: Meadows and a lawyers can continue to try to assert

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Speaker 1: that privilege. And that's why the Committee is trying to

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Speaker 1: circumvent that argument by focusing on all the text messages

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Speaker 1: and all the emails that they already have from Mr

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Speaker 1: Meadows and argue that these are issues, and these are conversations,

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Speaker 1: and these are meetings that don't involve the president, and

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Speaker 1: therefore any claim of executive privilege here would not be appropriate.

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Speaker 1: The Committee is also pointing to a new book by

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Speaker 1: Meadows called The Chiefs Chief about his role in the

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Speaker 1: White House, and the Committee says that's evidence that his

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Speaker 1: refusal to testify was untenable. How do you refuse to

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Speaker 1: testify when you have a book out? Well, that does

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Speaker 1: raise an interesting question, and it goes directly to that

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Speaker 1: good face defense that Mark Meadows is trying to raise.

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Speaker 1: He's trying to claim that he is relying in good

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Speaker 1: space on the assertion of executive privilege by former President Trump,

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Speaker 1: and if it is a good face assertion, it is

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Speaker 1: appropriate because just remember that privileges do exist that you try.

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Speaker 1: Any client privilege is something that people are most familiar

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Speaker 1: with conversations between a client and an attorney, and an

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Speaker 1: attorney and a client, and connect you with seeking legal

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Speaker 1: advices and valid reason not to answer questions in a

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Speaker 1: courtroom or during a deposition. So so privileges are frequently

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Speaker 1: raised in the course of committee hearings and in the

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Speaker 1: course of litigation. It's not unusual nor is it inappropriate.

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Speaker 1: But in this case, the committee suggesting that the executive

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Speaker 1: privilege assertion rings hollow because Mr Meadows is going out

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Speaker 1: and speaking to other media outlets he's promoting his book

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Speaker 1: and he's talking. They say about the very same topics

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Speaker 1: that he is now refusing to appear before the committee

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Speaker 1: and testify about. Is it a good faith effort even

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Speaker 1: though he didn't appear before the committee and did not

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Speaker 1: assert privilege on a question by question basis, As you know,

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Speaker 1: you've said, is the way this is normally done? Yeah, no,

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Speaker 1: that is is exactly right. You don't get to send,

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Speaker 1: least say that because there's an executive privilege looming out there,

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Speaker 1: or any privilege frankly out there, whether it's attorney client

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Speaker 1: privilege or any other potentially valid privilege, you simply can't

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Speaker 1: use that as a blanket refusal to appear for testimony,

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Speaker 1: whether it's in a deposition or before a committee or

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Speaker 1: during a trial. You have to exercise that privilege on

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Speaker 1: a question by question basis, because certain questions would not

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Speaker 1: fall within the privilege and others might, and in order

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Speaker 1: for some court to ultimately determine whether or not the

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Speaker 1: privilege the privilege is being asserted appropriately, it has to

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Speaker 1: be done on a question by question basis, and simply

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Speaker 1: refusing to appear altogether on the basis that executive privilege

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Speaker 1: may be implicated in some of the questioning is inappropriate,

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Speaker 1: and that's I think the weakness in the position that

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Speaker 1: Mark Meadows is taking. He really does have to show up,

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Speaker 1: appear before that committee and answer some questions that don't

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Speaker 1: invoke executive privilege in order for him to argue that

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Speaker 1: he is making a good faith effort to cooperate with

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Speaker 1: this committee, while at the same time honoring the invocation

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Speaker 1: of executive privilege by former President Trump. What does recent

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Speaker 1: history tell us about this? There was also a recent

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Speaker 1: history where criminal contempt charges were referred over by the

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Speaker 1: Department of Justice and the Department of Justice declined to

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Speaker 1: pursue them. So it's certainly not automatic because this has

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Speaker 1: been referred to the d o J, that there will

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Speaker 1: be a criminal contempt charge brought against Mark Meadows. For example,

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Speaker 1: in two thousand and eight, the Department declined to bring

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Speaker 1: charges against President George W. Bush's chief of staff Joshua

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Speaker 1: Bolton and former White House counsel Harriet Myers, who resisted

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Speaker 1: subpoenas concerning the controversial forced resignation of U S attorneys.

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Speaker 1: In two thousand and twelve, the Department likewise declined to

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Speaker 1: pursue a criminal contempt prosecution against Attorney General Eric Holder

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Speaker 1: who refused to turn over some documents that were related

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Speaker 1: to the Fast and Furious scandal, which was a gun

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Speaker 1: running staging that had gone badly wrong. So there is

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Speaker 1: precedent here where the executive branch takes an expansive view

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Speaker 1: Justice has to be thinking about here, because it's not

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Speaker 1: just the case of Mark Meadows that's an issue here.

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Speaker 1: It's also a question of what kind of precedent they

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Speaker 1: to future House of Representatives when they pursue subpoenas and

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Speaker 1: perhaps criminal contempt charges against other current or former close

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Speaker 1: force by the committee that's not going to get them

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Speaker 1: the information they're looking for. Even if Mark Meadows is

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Speaker 1: not get Congress the information as seeking to accomplish that,

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Speaker 1: Congress would have to sue Meadows and have a judge

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Speaker 1: hold him in civil contempt rather than criminal, then throw

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Speaker 1: And then the judge might order him to provide testimony.

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Speaker 1: A criminal execution is only going to serve as punishment

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Speaker 1: if he is charged, and if he's ultimately convicted, he

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Speaker 1: may spend some time in jail, but part of that

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Speaker 1: process will not be to order him to testify before Congress.

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Speaker 1: Thanks Bob. That's Robert Mints of McCarter and English. It's

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Speaker 1: the first effort by a government agency to hold individuals

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Speaker 1: and organizations civilly responsible for the violence at the capital.

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Speaker 1: On January six, Washington d C is suing the far

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Speaker 1: Ride groups, the Proud Boys, and the Oath Keepers over

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Speaker 1: their role in the rioting to try to recover the

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Speaker 1: millions of dollars DC spent in defending the capital. The

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Speaker 1: d C Attorney General, Karl Rassin says they're trying to

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Speaker 1: cause the groups as much financial pain as possible using

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Speaker 1: the ku Klux Klan Act. History will show that when

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Speaker 1: these acts like the klu Klux Klan Act and other

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Speaker 1: laws were used against hate groups, what did they do?

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Speaker 1: What did cowards do? They go running, they go hiding,

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Speaker 1: they get decentralized, and frankly, they're less dangerous. Joining me

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Speaker 1: as former federal prosecutor Jimmy Grule, a professor at Notre

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Speaker 1: Dame Law School. Jimmy, is this lawsuit for real or

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Speaker 1: more for show? In this sense? Does DC think it's

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Speaker 1: actually going to be able to recover damages or is

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Speaker 1: this just d C wanting to send a message. I

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Speaker 1: think it's it's certainly more for show. There's a serious

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Speaker 1: question or issue with respect to the defendants in the

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Speaker 1: civil lawsuit and any money and property and resources that

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Speaker 1: they maintained that could be attached to satisfy a judgment

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Speaker 1: against them. But I do think that there are likely

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Speaker 1: some resources collectively that could make a difference. I mean,

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Speaker 1: keep in mind that we have two organizations, the Proud

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Speaker 1: Boys and the Oath Keepers, that are defendants in this lawsuit,

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Speaker 1: in addition to already one members individuals that are members

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Speaker 1: of these organizations, and so collectively, I think there could

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Speaker 1: be some significant, substantial funds and property that could be

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Speaker 1: attached to enforce a judgment. But I think equally important

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Speaker 1: is the message that is being sent here by the

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Speaker 1: DC Attorney General, and that is that if you engage

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Speaker 1: in this type of conduct, then you face a risk,

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Speaker 1: in fact, a serious risk of bankruptcy. Because ultimately that

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Speaker 1: could be the end result of these organizations and individuals

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Speaker 1: could be brought to their knees financially, and that's that's

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Speaker 1: not an insignificant action or message descent. It seems as

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Speaker 1: if this lawsuit is taking information that the Justice Department

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Speaker 1: has unearthed in its January six investigations and sort of

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Speaker 1: repurposing it. So what would a defense be. It's going

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Speaker 1: to be difficult because a couple of things with respect

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Speaker 1: to the individual defendants, I think all of them but

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Speaker 1: perhaps one, have actually been criminally charged for their individual

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Speaker 1: roles that they assumed that they engaged in with respect

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Speaker 1: to the insurrection that occurred on January six, and so

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Speaker 1: they've been indicted, they've been criminal charges. That means that

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Speaker 1: there's a basis, there's probable cause to believe that these

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Speaker 1: individuals have committed a crime. And so the civil lawsuit

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Speaker 1: is really piggybacking on top of that and using that

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Speaker 1: information to support the civil action. And of course, as

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Speaker 1: you know, the civil lawsuits, the standard of proof of

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Speaker 1: substantially less. It's only by a preponderance of the evidence.

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Speaker 1: So they're taking information that's been generated collected in the

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Speaker 1: criminal lawsuit and they're going to be using that to

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Speaker 1: satisfy a civil cause of action based on a much

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Speaker 1: lower standard of proof. So I think it's gonna make

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Speaker 1: it much easier for the plaintiffs to prevail in the

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Speaker 1: civil lawsuit. And if you look at the civil complaint,

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Speaker 1: and it's about an eighty four page document, it is

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Speaker 1: really loaded with photographs of the individual defendants named in

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Speaker 1: the civil lawsuit, showing them engaged in violent combat with

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Speaker 1: the DC Police and the U. S. Capitol Police, showing

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Speaker 1: them destroying property, specifically by forceful entry destruction of the U. S. Capital.

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Speaker 1: And so it's the old adage. I think that actions

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Speaker 1: speak louder than words, and these individuals are actually caught

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Speaker 1: on tape engaging in this conduct, and I think it's

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Speaker 1: going to be difficult to talk that away through mere words.

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Speaker 1: This lawsuit follows a jury verdict against white nationalists in

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Speaker 1: Virginia just last month, and I don't think that the

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Speaker 1: timing of this is just coincidental. The civil suit against

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Speaker 1: the Proud Boys and the Oathkeepers follows twenty six million

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Speaker 1: dollar verdict where the jury found against the white supremacists

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Speaker 1: and other hate groups that were possible for the two

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Speaker 1: thousand and seventeen Unite the Right rally in Charlottesville, and

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Speaker 1: so now there's a very compelling precedent here for this

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Speaker 1: type of lawsuit. The New York Times has reported that

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Speaker 1: members of the Proud Boys have been increasingly appearing at

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Speaker 1: local events in small communities, town council and school board meetings,

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Speaker 1: for example, to bring their brand of politics. Is this

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Speaker 1: a change in strategy that might work? Well? It certainly could.

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Speaker 1: And there's no question that these groups, the Proud Boys

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Speaker 1: and the Oath Keepers, have received a lot of support

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Speaker 1: from foreign President Trump's base and kind of running to

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Speaker 1: their defense. And so I think what's happening is there

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Speaker 1: just changing their strategy. I mean, this confrontation, combative strategy

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Speaker 1: is what caught them in trouble with the Department of

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Speaker 1: Justice and now the d C Attorney General. And so

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Speaker 1: now the strategy is, well, let's try to infiltrate school

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Speaker 1: boards and city councils and have an influence at that level.

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Speaker 1: And that's probably amatic, but it raises legitimate First Amendment issues,

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Speaker 1: and certainly they have a right to advance their ideology,

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Speaker 1: and whether you agree with it or not, it's protective,

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Speaker 1: free speech. We've been learning a lot from the January

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Speaker 1: six Committee, and the conclusion that some of the members

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Speaker 1: have drawn is that the White House played a more

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Speaker 1: substantial role in trying to overturn the election then was

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Speaker 1: previously known. But I haven't heard anything about prosecutions of

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Speaker 1: some of the people. For example, Mark Meadows, is you

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Speaker 1: know that's a criminal contempt of Congress. Yeah, I think

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Speaker 1: we have to we have to step back the the

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Speaker 1: January six Committee, the Bipartisan Committee. I think it's still

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Speaker 1: in the fairly early stages of their investigation, even though

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Speaker 1: I mean they've interviewed and taken depositions of of dozens,

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Speaker 1: perhaps maybe even hundreds of witnesses at this point. But

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Speaker 1: they're still sifting through a lot of information evidence that

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Speaker 1: they have they've accumulated. But I do think it's telling

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Speaker 1: when we start hearing on on national news programs members

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Speaker 1: of the of the Congressional Committee making comments about violations

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Speaker 1: of federal law, that that that's why they that's why

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Speaker 1: it's important that these individuals that they've subpoenaed for deposition

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Speaker 1: appear before the committee because they have evidence, firsthand evidence

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Speaker 1: that could support criminal violations, including obstruction of a congressional proceeding,

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Speaker 1: and so I think that's very telling that they're moving

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Speaker 1: in that direction and collecting evidences could support a criminal

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Speaker 1: prosecution all White House officials. And I want to ask

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Speaker 1: you a question about Mark Meadows. As you know, the

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Speaker 1: House is voted to hold the former White House Chief

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Speaker 1: of Staff Meadows in contempt of car Congress after he

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Speaker 1: stopped cooperating with the January sixth Committee. So this is

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Speaker 1: the second time the Special Committee has sought to punish

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Speaker 1: a witness for defying a subpoena. The last witness who

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Speaker 1: did so, Steve Bannon, was charged by the Justice Department

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Speaker 1: and is facing trial in July. Is it likely that

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Speaker 1: the Justice Department will also prosecute Meadows? Well, I think

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Speaker 1: so again, because the alleged reason for not appearing before

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Speaker 1: the Congressional Committee, the January six Committee, uh Meadows is claiming,

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Speaker 1: is because he has an executive privilege, or he's claiming

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Speaker 1: that's one one argument. The other is that it would

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Speaker 1: violate his right against self incrimination. But but both of

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Speaker 1: those arguments are severely undermined by the fact that Mark

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Speaker 1: Meadows has already disclosed thousands of pages of documents to

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Speaker 1: the to the Committe. And he's also written a book,

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Speaker 1: and in the book he discloses information personal information, what

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Speaker 1: he observed, what happened on January six. So it appears

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Speaker 1: to me that that he's waved certainly his claim of

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Speaker 1: of a Fifth Amendment privilege by the documents that he's

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Speaker 1: disclosed in the book that that he's published. And uh,

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Speaker 1: and so it's kind of hard to it's, on the

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Speaker 1: one hand, disclose, disclose this, but then say, well, I

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Speaker 1: can't talk about it, because again, I would be incriminating

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Speaker 1: myself if I did. It's just a very inconsistent legal

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Speaker 1: theory that they're advancing, and so therefore I don't think

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Speaker 1: it's going to prevail. And I do think that there's

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Speaker 1: a very high likelihood that he is going to be

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Speaker 1: held in criminal content by the Department of Justice. Thanks

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Speaker 1: so much for being in the Boomberg Laws Show. Jimmy.

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Speaker 1: That's former federal prosecutor Jimmy Garula, a professor at Notre

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Speaker 1: Dame Law School. And that's different sedition of the Bloomberg

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Speaker 1: Law Show. Remember you can always get the latest legal

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Speaker 1: news on our Bloomberg Law Podcast. You can find them

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Speaker 1: on Apple Podcasts. Spotify and at www dot bloomberg dot com.

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Speaker 1: Slash podcast Slash Law, and please join us every weeknight

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Speaker 1: at ten pm Wall Street Time for the Bloomberg Law Show.

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Speaker 1: I'm June Grosso and you're listening to Bloomberg