1 00:00:03,200 --> 00:00:08,000 Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio. 2 00:00:09,600 --> 00:00:13,119 Speaker 2: Welcome to Bloomberg Law. I'm June Grosso. Ahead. In this hour, 3 00:00:13,440 --> 00:00:17,240 Speaker 2: the prosecution is wrapping up its case against Sam Bankman Freed, 4 00:00:17,520 --> 00:00:20,759 Speaker 2: leaving him with a critical decision to make. Inside the 5 00:00:20,800 --> 00:00:25,880 Speaker 2: Supreme Court's second decision allowing Biden's ghost gun regulations, Jack 6 00:00:25,920 --> 00:00:29,200 Speaker 2: Smith tells Trump to put up or shut up, and 7 00:00:29,480 --> 00:00:35,800 Speaker 2: another judge imposes a gag order on Trump res to 8 00:00:35,880 --> 00:00:39,600 Speaker 2: Suard that this committee will not stop until we uncover 9 00:00:39,680 --> 00:00:44,040 Speaker 2: the full truth behind the collapse of FTX. Last December, 10 00:00:44,080 --> 00:00:47,320 Speaker 2: at the House Financial Services Committee hearing on the collapse 11 00:00:47,320 --> 00:00:52,080 Speaker 2: of cryptocurrency firm FTX, John Ray, who was appointed to 12 00:00:52,159 --> 00:00:56,160 Speaker 2: pick up the pieces, testified about what was uncovered during 13 00:00:56,160 --> 00:00:57,560 Speaker 2: an internal investigation. 14 00:00:58,040 --> 00:01:01,440 Speaker 3: The FTX groups collapse appears the time from absolute concentration 15 00:01:01,520 --> 00:01:04,240 Speaker 3: of control in the hands of a small group of 16 00:01:04,319 --> 00:01:10,080 Speaker 3: grossly inexperienced, unsophisticated individuals who failed to implement virtually any 17 00:01:10,200 --> 00:01:13,240 Speaker 3: of the systems or controls that are necessary for a 18 00:01:13,280 --> 00:01:16,320 Speaker 3: company entrusted with other people's money or assets. 19 00:01:16,640 --> 00:01:21,600 Speaker 2: And it's with three of those inexperienced and unsophisticated individuals 20 00:01:21,720 --> 00:01:25,280 Speaker 2: that the prosecution has built its criminal fraud case against 21 00:01:25,280 --> 00:01:29,040 Speaker 2: Sam Bankman Freed, accusing him of using billions of customer 22 00:01:29,120 --> 00:01:33,680 Speaker 2: funds from FTX to spend lavishly and engage in speculative 23 00:01:33,720 --> 00:01:38,000 Speaker 2: trading through its sister hedge fund. The prosecution is expected 24 00:01:38,040 --> 00:01:41,160 Speaker 2: to wrap up its case next week, leaving the defense 25 00:01:41,240 --> 00:01:44,720 Speaker 2: with the critical question of whether Bankment Freed will take 26 00:01:44,760 --> 00:01:48,240 Speaker 2: the stand in his own defense, and any answer is 27 00:01:48,320 --> 00:01:52,240 Speaker 2: fraught with uncertainty. Joining me is former federal prosecutor Michael 28 00:01:52,280 --> 00:01:56,440 Speaker 2: Weinstein of Coal Shots. Michael. In week three, it seems 29 00:01:56,480 --> 00:02:01,120 Speaker 2: like the prosecution has built an almost insurmountable case against 30 00:02:01,200 --> 00:02:02,040 Speaker 2: Bankman Freed. 31 00:02:02,360 --> 00:02:05,120 Speaker 4: It's an extremely strong case for three reasons. Number one, 32 00:02:05,160 --> 00:02:08,600 Speaker 4: because they have first hand individuals who were in the 33 00:02:08,680 --> 00:02:13,000 Speaker 4: room at the table discussing certain acts those being criminal, 34 00:02:13,120 --> 00:02:16,640 Speaker 4: which present a problem for Sam Bacon Freed. They also 35 00:02:16,760 --> 00:02:21,639 Speaker 4: have documents and slack messages and text messages which are 36 00:02:21,720 --> 00:02:25,240 Speaker 4: problematic as well, which supports the improper discussions that were 37 00:02:25,280 --> 00:02:29,040 Speaker 4: being held. And then number three, they have the industry 38 00:02:29,080 --> 00:02:33,680 Speaker 4: itself is fraught with problems and the representations that were 39 00:02:33,720 --> 00:02:37,040 Speaker 4: made to investors and things of that nature, which he 40 00:02:37,160 --> 00:02:41,040 Speaker 4: has said publicly prior to the criminal charges being brought. 41 00:02:41,200 --> 00:02:44,040 Speaker 4: So that's a trifecta of problems for mister Freed, and 42 00:02:44,120 --> 00:02:46,960 Speaker 4: I think his defense lawyers are having a difficult time 43 00:02:47,280 --> 00:02:49,679 Speaker 4: chipping away at some of the things that are being 44 00:02:49,720 --> 00:02:53,440 Speaker 4: said through testimony, notwithstanding the great efforts that they are 45 00:02:53,520 --> 00:02:54,240 Speaker 4: trying to make. 46 00:02:54,600 --> 00:02:57,280 Speaker 2: And I've raised this before that even pre trial, the 47 00:02:57,280 --> 00:03:00,919 Speaker 2: most important rulings seem to go again against the defense, 48 00:03:01,320 --> 00:03:05,680 Speaker 2: and during the trial on cross examination, Judge Caplan seems 49 00:03:05,720 --> 00:03:09,040 Speaker 2: to be keeping the defense lawyers very much in check. 50 00:03:09,280 --> 00:03:12,320 Speaker 4: Yeah, so that's correct. So not only is the defense 51 00:03:12,680 --> 00:03:16,600 Speaker 4: up against testimony and documents, they're up against the judge 52 00:03:16,880 --> 00:03:19,960 Speaker 4: and the structure of the proceeding, and the judge prior 53 00:03:20,000 --> 00:03:23,280 Speaker 4: to trial, for example, you know, prohibited certain of the 54 00:03:23,320 --> 00:03:26,119 Speaker 4: defense witnesses that they wanted to bring in. Example number 55 00:03:26,160 --> 00:03:28,160 Speaker 4: one is the expert from Britain that they wanted to 56 00:03:28,160 --> 00:03:30,240 Speaker 4: bring in to talk about the terms and conditions. So 57 00:03:30,639 --> 00:03:33,080 Speaker 4: their hands were tied from the start of this case, 58 00:03:33,240 --> 00:03:36,080 Speaker 4: and that's really playing out now. In reality, those. 59 00:03:35,920 --> 00:03:39,920 Speaker 2: Will be appealed. But how much are issues like that 60 00:03:40,400 --> 00:03:42,680 Speaker 2: left to the discretion of the judge. I mean, we 61 00:03:42,720 --> 00:03:45,200 Speaker 2: all know it's very difficult to get a conviction, assuming 62 00:03:45,240 --> 00:03:48,240 Speaker 2: he's convicted overturned. How much is that in the discretion 63 00:03:48,400 --> 00:03:49,680 Speaker 2: of the judge. 64 00:03:49,280 --> 00:03:52,200 Speaker 4: A tremendous amount. The judge is the referee essentially, and 65 00:03:52,240 --> 00:03:55,200 Speaker 4: he is able to call balls and strike when necessary. 66 00:03:55,640 --> 00:03:58,120 Speaker 4: And there is guidance through the appellate courts, through the 67 00:03:58,120 --> 00:04:01,360 Speaker 4: Second Circuit, for example, or through other rulings that the 68 00:04:01,400 --> 00:04:04,040 Speaker 4: courts have made, or for instance, the Federal rules of 69 00:04:04,080 --> 00:04:07,560 Speaker 4: criminal procedure guide the court in making those decisions. But 70 00:04:07,640 --> 00:04:10,800 Speaker 4: the judge has given great latitude in determining the type 71 00:04:10,800 --> 00:04:13,680 Speaker 4: of evidence, the relevance of that evidence, how it comes in, 72 00:04:14,000 --> 00:04:17,080 Speaker 4: whether it comes in, whether it can be challenged, things 73 00:04:17,120 --> 00:04:17,800 Speaker 4: of that nature. 74 00:04:18,160 --> 00:04:22,159 Speaker 2: So you had these three witnesses who decided to cooperate 75 00:04:22,200 --> 00:04:25,760 Speaker 2: with the state to our longtime friends of his ones 76 00:04:25,760 --> 00:04:30,640 Speaker 2: a former girlfriend. Does that make their testimony more believable? 77 00:04:31,240 --> 00:04:35,040 Speaker 4: I think it does. And the reason is because they're 78 00:04:35,080 --> 00:04:38,880 Speaker 4: not nuanceto the scene. It's not as though for six months, 79 00:04:38,920 --> 00:04:41,200 Speaker 4: you know, they dropped in out of the sky, and 80 00:04:41,240 --> 00:04:44,760 Speaker 4: then in that six month period there were some criminal acts. 81 00:04:44,920 --> 00:04:48,080 Speaker 4: They gave a little bit of the longer history that 82 00:04:48,120 --> 00:04:51,080 Speaker 4: they had with Sam Bank and Free both the run 83 00:04:51,240 --> 00:04:54,800 Speaker 4: up to him starting the business, their involvement, their role 84 00:04:54,880 --> 00:04:58,080 Speaker 4: in the company, and then ultimately it's spiraling out of control. 85 00:04:58,200 --> 00:05:00,000 Speaker 4: And I think that gives them a little bit of 86 00:05:00,080 --> 00:05:03,400 Speaker 4: credibility in the jury's eyes, because you know, they can 87 00:05:03,440 --> 00:05:05,880 Speaker 4: give a little bit more context, and when they speak 88 00:05:05,920 --> 00:05:09,120 Speaker 4: to things like what Sam bank Unfried was saying at 89 00:05:09,160 --> 00:05:11,240 Speaker 4: some of those meetings and some of the decisions he 90 00:05:11,400 --> 00:05:13,960 Speaker 4: was making, they can give some context to that because 91 00:05:13,960 --> 00:05:17,040 Speaker 4: they've known him so long and so from my perspective, 92 00:05:17,040 --> 00:05:21,320 Speaker 4: when you've got that longtime relationship, that favors the government. 93 00:05:21,520 --> 00:05:25,960 Speaker 4: Insofar as the testimony coming out and really hurting the defendant, by. 94 00:05:25,839 --> 00:05:28,560 Speaker 2: All accounts, the defense didn't make much headway in the 95 00:05:28,600 --> 00:05:33,800 Speaker 2: cross examination of those three Inner Circle witnesses. They did 96 00:05:33,839 --> 00:05:36,760 Speaker 2: poke some holes in the testimony here and there. Does 97 00:05:36,800 --> 00:05:37,800 Speaker 2: that really help. 98 00:05:37,600 --> 00:05:40,360 Speaker 4: In the end? I think the answers probably know it's 99 00:05:40,360 --> 00:05:42,240 Speaker 4: like chopping down an oak tree. You can take a 100 00:05:42,240 --> 00:05:44,200 Speaker 4: couple of swings with an ax, but that's not going 101 00:05:44,279 --> 00:05:45,280 Speaker 4: to take down the tree. 102 00:05:45,360 --> 00:05:47,239 Speaker 2: What about the fact that all three of the Inner 103 00:05:47,240 --> 00:05:51,760 Speaker 2: Circle witnesses, the cooperating witnesses, testified, Yeah, I took part 104 00:05:51,800 --> 00:05:54,280 Speaker 2: in this, but he directed me to do it, and 105 00:05:54,320 --> 00:05:57,359 Speaker 2: when things fell apart, it was mea culpa, maya culpa. 106 00:05:57,640 --> 00:06:00,920 Speaker 2: And now they're testifying to get a better deal, maybe 107 00:06:00,960 --> 00:06:02,520 Speaker 2: even to avoid jail time. 108 00:06:02,800 --> 00:06:06,280 Speaker 4: Well, that certainly is how the defense wants to frame it. 109 00:06:06,360 --> 00:06:09,080 Speaker 4: I think the difficulty with that is they're not getting off. 110 00:06:09,120 --> 00:06:13,200 Speaker 4: They've pled guilty to very significant and very material criminal 111 00:06:13,279 --> 00:06:16,400 Speaker 4: charges which will carry with its significant penalties. And that's 112 00:06:16,440 --> 00:06:19,040 Speaker 4: the response to when the defense says to them during 113 00:06:19,040 --> 00:06:21,440 Speaker 4: a cross examination and did say to them, well, aren't 114 00:06:21,440 --> 00:06:23,760 Speaker 4: you getting a sweetheart deal now? And that's always the 115 00:06:23,880 --> 00:06:26,240 Speaker 4: push and pull when you have a cooperating witness on 116 00:06:26,240 --> 00:06:28,640 Speaker 4: the witness stand, is you know, are they getting really 117 00:06:28,640 --> 00:06:31,120 Speaker 4: a sweetheart deal? And that's where the jury to assess 118 00:06:31,160 --> 00:06:34,120 Speaker 4: their credibility to a jury to assess are they testifying 119 00:06:34,200 --> 00:06:36,960 Speaker 4: only to get a better deal here? It doesn't look 120 00:06:37,000 --> 00:06:39,000 Speaker 4: like they got a great deal here. They knew that 121 00:06:39,080 --> 00:06:41,599 Speaker 4: they were kind of dead in their tracks and wanted 122 00:06:41,600 --> 00:06:44,440 Speaker 4: to save some semblance of the remainder of their life 123 00:06:44,640 --> 00:06:47,000 Speaker 4: by fleading guilty and then moving on with their life. 124 00:06:47,000 --> 00:06:49,520 Speaker 4: But as a consequence to that, they had to testify 125 00:06:49,560 --> 00:06:50,640 Speaker 4: against their former friend. 126 00:06:50,839 --> 00:06:52,599 Speaker 2: Do you think they'll actually serve jail time. 127 00:06:53,040 --> 00:06:55,520 Speaker 4: I think they have real exposure. Yes, there's a lot 128 00:06:55,560 --> 00:06:57,200 Speaker 4: of money here. I think a lot of eyes are 129 00:06:57,200 --> 00:06:59,400 Speaker 4: going to be looking at all of these pleas and 130 00:06:59,440 --> 00:07:01,080 Speaker 4: I think they have some real problems here. 131 00:07:01,400 --> 00:07:04,560 Speaker 2: What do you think of the prosecution's portrayal of bankman 132 00:07:04,680 --> 00:07:08,880 Speaker 2: Freed as this evil puppet master pulling everyone's strings. 133 00:07:09,279 --> 00:07:11,640 Speaker 4: Look, I mean, I think that's somewhat of the narrative 134 00:07:11,680 --> 00:07:14,800 Speaker 4: that the government has to tell. They don't want to 135 00:07:14,880 --> 00:07:18,679 Speaker 4: suggest that he was this ninety twenty year old kid 136 00:07:19,040 --> 00:07:21,600 Speaker 4: just you know, playing with house money. I think they 137 00:07:21,640 --> 00:07:23,360 Speaker 4: have to make him out to be a little bit 138 00:07:23,360 --> 00:07:26,400 Speaker 4: more sinister, a little more systematic. I'm a little bit 139 00:07:26,400 --> 00:07:29,080 Speaker 4: more conniving. That is just part of their narrative. I mean, 140 00:07:29,120 --> 00:07:31,520 Speaker 4: when I look at all of these guys, the three 141 00:07:31,520 --> 00:07:34,640 Speaker 4: cooperating witnesses who played guilty and standbank and free, it 142 00:07:34,760 --> 00:07:36,160 Speaker 4: just reminds me of when I sit in the room 143 00:07:36,200 --> 00:07:37,840 Speaker 4: and I look at my nieces and nephews who were 144 00:07:37,840 --> 00:07:40,000 Speaker 4: in their twenties, and I look and I think to myself, 145 00:07:40,080 --> 00:07:43,280 Speaker 4: could they be entrusted with ten twenty thirty billion dollars? 146 00:07:43,360 --> 00:07:46,000 Speaker 4: And the answer is no, you know, And it's remarkable 147 00:07:46,080 --> 00:07:50,360 Speaker 4: to me that very sophisticated investors gave so much money 148 00:07:50,400 --> 00:07:53,080 Speaker 4: repeatedly to a group of people that were in their 149 00:07:53,080 --> 00:07:55,640 Speaker 4: mid twenties, and we're, you know, waving a shiny object, 150 00:07:55,680 --> 00:07:59,600 Speaker 4: which was cryptocurrency. So that's a larger takeaway from this situation. 151 00:08:00,160 --> 00:08:02,480 Speaker 4: I think all four of them have some real exposure here. 152 00:08:02,640 --> 00:08:05,960 Speaker 2: The big question is at every criminal trial is whether 153 00:08:06,160 --> 00:08:09,720 Speaker 2: the defendant will take the stand in his own defense. 154 00:08:09,920 --> 00:08:12,640 Speaker 4: What do you think? I think that's a great question, 155 00:08:12,720 --> 00:08:15,720 Speaker 4: and someone in Vegas is probably betting on that. I 156 00:08:15,720 --> 00:08:18,560 Speaker 4: think he may want to do something. His lawyers may 157 00:08:18,600 --> 00:08:21,600 Speaker 4: want to do something very different, although I think they're 158 00:08:21,680 --> 00:08:24,400 Speaker 4: setting it up with the recent argument that he's not 159 00:08:24,400 --> 00:08:27,080 Speaker 4: getting his medication, he's not able to assist in his 160 00:08:27,120 --> 00:08:30,480 Speaker 4: own defense. So you can kind of see the ground 161 00:08:30,640 --> 00:08:34,000 Speaker 4: work being laid where they may not call him because 162 00:08:34,040 --> 00:08:36,880 Speaker 4: he's not getting his medication, and maybe they're setting up 163 00:08:36,880 --> 00:08:40,160 Speaker 4: an appeal issue that he maybe would have testified. But look, 164 00:08:40,200 --> 00:08:43,959 Speaker 4: the reason defendants testify is because they believe that they 165 00:08:44,000 --> 00:08:46,959 Speaker 4: can tell their story better and they can provide an 166 00:08:46,960 --> 00:08:50,160 Speaker 4: explanation and they can justify what they did and how 167 00:08:50,160 --> 00:08:53,640 Speaker 4: they did it. Here, that's very, very difficult because he's 168 00:08:53,679 --> 00:08:56,640 Speaker 4: going to have to counter three people who were in 169 00:08:56,760 --> 00:09:01,680 Speaker 4: the room during these discussions, who all gave pretty consistent testimony. 170 00:09:02,000 --> 00:09:05,680 Speaker 4: And for him to testify, of course, he's opening himself 171 00:09:05,760 --> 00:09:09,040 Speaker 4: up and risking a pretty ferocious cross examination, and that 172 00:09:09,280 --> 00:09:11,520 Speaker 4: is a real problem for him in all. 173 00:09:11,360 --> 00:09:14,319 Speaker 2: The prior statements he's made. But well, I want to 174 00:09:14,320 --> 00:09:16,920 Speaker 2: say it's his only hope, his only chance to convince 175 00:09:16,960 --> 00:09:18,520 Speaker 2: perhaps one or two jurors. 176 00:09:19,000 --> 00:09:21,800 Speaker 4: Correct. I mean, he may feel, and his defense lawyers 177 00:09:21,800 --> 00:09:24,160 Speaker 4: may feel, what have I got to lose? We're deep 178 00:09:24,200 --> 00:09:26,400 Speaker 4: in the hole here, and this may be the only 179 00:09:26,480 --> 00:09:30,040 Speaker 4: ladder out is to have him testify and to humanize 180 00:09:30,080 --> 00:09:33,080 Speaker 4: the situation and to talk about how he really tried 181 00:09:33,080 --> 00:09:35,680 Speaker 4: to do all the right things, and he wasn't misleading anyone, 182 00:09:35,720 --> 00:09:37,839 Speaker 4: and he really tried to make, you know, good decisions, 183 00:09:37,880 --> 00:09:40,840 Speaker 4: and he relied upon other people. He relied upon Miss Ellison, 184 00:09:41,000 --> 00:09:44,040 Speaker 4: he relied upon mister Gary Wong, things of that nature. 185 00:09:44,160 --> 00:09:47,160 Speaker 4: But again, as good as he thinks his testimony is 186 00:09:47,160 --> 00:09:50,480 Speaker 4: going to come off, the prosecution is salivating, waiting in 187 00:09:50,520 --> 00:09:53,360 Speaker 4: the wings to cross examine him and to use a 188 00:09:53,480 --> 00:09:57,320 Speaker 4: multitude of statements he's made previously in their examination and 189 00:09:57,320 --> 00:09:58,679 Speaker 4: that's going to be quite fascinating. 190 00:09:58,880 --> 00:10:01,080 Speaker 2: Well, if he does take this, and there's one thing 191 00:10:01,120 --> 00:10:04,719 Speaker 2: that's certain, the courtroom will be packed, and we may 192 00:10:04,760 --> 00:10:08,440 Speaker 2: find out as early as next Thursday. Thanks so much, Michael. 193 00:10:08,640 --> 00:10:13,080 Speaker 2: That's former federal prosecutor Michael Weinstein of Cole Shots. Coming 194 00:10:13,160 --> 00:10:15,920 Speaker 2: up next on the Bloomberg Law Show. It's a Supreme 195 00:10:16,000 --> 00:10:19,920 Speaker 2: Court decision about regulations on ghost guns. But the justices 196 00:10:20,000 --> 00:10:23,080 Speaker 2: seem to be sending a strong message to the Fifth 197 00:10:23,120 --> 00:10:26,520 Speaker 2: Circuit and a Texas judge. I'm June Grosso and you're 198 00:10:26,600 --> 00:10:30,280 Speaker 2: listening to Bloomberg. Last month, New York City Mayor Eric 199 00:10:30,360 --> 00:10:33,640 Speaker 2: Adams announced that in a search of a private daycare 200 00:10:33,800 --> 00:10:38,320 Speaker 2: in Harlem, police recovered drugs, ghost guns, and the three 201 00:10:38,400 --> 00:10:41,400 Speaker 2: D printer used to make them. Who would have thought 202 00:10:41,679 --> 00:10:47,880 Speaker 2: that we must add to our list of inspections of 203 00:10:47,920 --> 00:10:49,920 Speaker 2: do we have three D printers that. 204 00:10:49,840 --> 00:10:50,760 Speaker 4: Can print guns? 205 00:10:51,600 --> 00:10:55,600 Speaker 2: The Biden administration has issued regulations on these ghost guns, 206 00:10:55,920 --> 00:11:00,000 Speaker 2: which are assembled from kits without the usual serial numbers 207 00:10:59,640 --> 00:11:04,360 Speaker 2: and background checks on purchasers, making them attractive to teenagers 208 00:11:04,440 --> 00:11:07,520 Speaker 2: and those with criminal records. And this week, for the 209 00:11:07,559 --> 00:11:11,559 Speaker 2: second time in three months, the Supreme Court has reinstated 210 00:11:11,600 --> 00:11:17,120 Speaker 2: those regulations, blocking a second nationwide injunction issued by Texas 211 00:11:17,120 --> 00:11:21,160 Speaker 2: Federal Judge Rite O'Connor and okayed by the Fifth Circuit. 212 00:11:21,480 --> 00:11:24,080 Speaker 2: Does this mean the Supreme Court is telling the judge 213 00:11:24,080 --> 00:11:27,160 Speaker 2: and the Fifth Circuit no, means no? Or does it 214 00:11:27,240 --> 00:11:32,000 Speaker 2: mean something more substantive about ghost gun regulations joining me 215 00:11:32,040 --> 00:11:35,800 Speaker 2: is Heidi Lee Feldman, a professor at Georgetown Law. So 216 00:11:36,040 --> 00:11:39,480 Speaker 2: let's go back to the August decision where the Supreme 217 00:11:39,559 --> 00:11:44,360 Speaker 2: Court blocked a nationwide injunction by Judge rite O'Connor and 218 00:11:44,480 --> 00:11:48,679 Speaker 2: allowed the government to keep enforcing the regulations on ghost guns. 219 00:11:49,040 --> 00:11:51,560 Speaker 2: Should that have been the end of this until the 220 00:11:51,600 --> 00:11:54,000 Speaker 2: case was fully litigated. 221 00:11:53,600 --> 00:11:56,600 Speaker 1: One would have thought so. And that's certainly ultimately the 222 00:11:56,640 --> 00:12:00,920 Speaker 1: position the government took. It was very peculiar that they 223 00:12:01,040 --> 00:12:04,920 Speaker 1: sought an injunction pending appeal. That is, an alteration in 224 00:12:05,000 --> 00:12:08,959 Speaker 1: the procedural posture of the case. They didn't give any 225 00:12:09,080 --> 00:12:13,960 Speaker 1: new reason for seeking an injunction while the case was pending, 226 00:12:14,160 --> 00:12:17,640 Speaker 1: and that was I think the really controversial thing. Nothing 227 00:12:17,760 --> 00:12:21,040 Speaker 1: had changed in the facts or the law that would 228 00:12:21,040 --> 00:12:24,920 Speaker 1: be relevant to granting an injunction. So ordinarily, if a 229 00:12:24,960 --> 00:12:28,559 Speaker 1: party did that the judge would just deny it because 230 00:12:28,600 --> 00:12:33,079 Speaker 1: they had just had an injunction overturned by the Supreme Court. 231 00:12:33,559 --> 00:12:37,760 Speaker 1: Of course, in this case, Judge O'Connor granted the injunction 232 00:12:38,200 --> 00:12:41,560 Speaker 1: and didn't give any new reasons, and the Court really 233 00:12:41,760 --> 00:12:45,079 Speaker 1: just put the kebash on that and said no, no. 234 00:12:45,600 --> 00:12:48,440 Speaker 2: Also, the Fifth Circuit upheld his order. 235 00:12:48,800 --> 00:12:53,160 Speaker 1: Yeah, look, there's several very contested matters that are driving 236 00:12:53,160 --> 00:12:57,040 Speaker 1: this litigation. Ghost gun manufacturers come in and say, we 237 00:12:57,160 --> 00:13:02,280 Speaker 1: object to this ATF rule making, which seems to require 238 00:13:02,400 --> 00:13:05,920 Speaker 1: us to take all sorts of steps that people who 239 00:13:06,000 --> 00:13:11,080 Speaker 1: make firearms have to take. We're arguing we're not firearms manufacturers, 240 00:13:11,080 --> 00:13:15,959 Speaker 1: we're parts suppliers. So that whole dynamic introduces guns into 241 00:13:16,000 --> 00:13:20,000 Speaker 1: the mix. Then we have a federal agency ATF, which 242 00:13:20,040 --> 00:13:24,319 Speaker 1: has its own long complicated history. Then we have a judiciary, 243 00:13:24,840 --> 00:13:29,520 Speaker 1: certainly O'Connor and the Fifth Circuit, that's very keen to 244 00:13:29,640 --> 00:13:34,719 Speaker 1: invalidate agency rulemaking. So I think the Fifth Circuit as 245 00:13:34,720 --> 00:13:39,000 Speaker 1: a whole was very moved by that agenda, and so 246 00:13:39,040 --> 00:13:42,760 Speaker 1: they do uphold O'Connor's order, And so ultimately, of course, 247 00:13:42,760 --> 00:13:46,240 Speaker 1: the Supreme Court is rejecting the Fifth Circuits position as 248 00:13:46,240 --> 00:13:49,559 Speaker 1: well as O'Connor's position on the injunction. But the fact 249 00:13:49,559 --> 00:13:52,679 Speaker 1: that the Supreme Court took that position isn't an indication 250 00:13:52,760 --> 00:13:55,319 Speaker 1: of how they would ultimately rule on the merits as 251 00:13:55,400 --> 00:13:58,000 Speaker 1: much as I think it was a rejection of the 252 00:13:58,120 --> 00:14:01,080 Speaker 1: challenge to the authority of their earlier ruling. 253 00:14:01,720 --> 00:14:04,520 Speaker 2: So the Court's August order was a five to four 254 00:14:04,600 --> 00:14:08,240 Speaker 2: decision where Chief Justice John Roberts and Justice Amy Cony 255 00:14:08,280 --> 00:14:11,800 Speaker 2: Barrett joined the Court's three liberals. So there were four 256 00:14:11,880 --> 00:14:17,400 Speaker 2: descents in August, but no justice publicly dissented from this 257 00:14:17,559 --> 00:14:20,600 Speaker 2: order that was handed down on Monday. Does that mean 258 00:14:20,680 --> 00:14:23,360 Speaker 2: the justices are telling the judge in the Fifth Circuit 259 00:14:23,440 --> 00:14:27,240 Speaker 2: no means no? Or does it mean something more substantive 260 00:14:27,560 --> 00:14:29,200 Speaker 2: about ghost gun regulations. 261 00:14:29,680 --> 00:14:33,840 Speaker 1: It's very hard to read tea leaves from these orders 262 00:14:33,840 --> 00:14:38,160 Speaker 1: that are issued without opinions, and these are orders that 263 00:14:38,280 --> 00:14:42,080 Speaker 1: relate to not the final merits on the case. So 264 00:14:42,480 --> 00:14:45,120 Speaker 1: I want to sound a note of caution. I think 265 00:14:45,160 --> 00:14:48,480 Speaker 1: that there are justices on the Court who may be 266 00:14:48,880 --> 00:14:53,640 Speaker 1: very unsympathetic to the ATF rulemaking related to ghost guns, 267 00:14:53,960 --> 00:14:59,040 Speaker 1: who realize that you simply cannot operate our system of 268 00:14:59,160 --> 00:15:04,040 Speaker 1: litigating ca case by case and letting different courts reach 269 00:15:04,080 --> 00:15:08,600 Speaker 1: different conclusions if they disagree, and seeing what emerges up 270 00:15:08,640 --> 00:15:11,280 Speaker 1: through the process and what rit O'Connor and the Fifth 271 00:15:11,280 --> 00:15:15,440 Speaker 1: Circuit wanted to do absolutely disrupts that process. It also 272 00:15:15,520 --> 00:15:18,840 Speaker 1: wastes the Supreme Court's time. I mean, they do not 273 00:15:19,120 --> 00:15:24,720 Speaker 1: want to have to keep issuing redundant interlocutory orders. That's 274 00:15:24,840 --> 00:15:28,960 Speaker 1: just completely inefficient for them. So I think you could 275 00:15:29,000 --> 00:15:33,400 Speaker 1: have justices who may be less sympathetic to the idea 276 00:15:33,440 --> 00:15:37,120 Speaker 1: of letting the ATF rule making stand or more sympathetic 277 00:15:37,240 --> 00:15:43,760 Speaker 1: to relatively unfettered sales of ghost guns, who nevertheless see 278 00:15:44,040 --> 00:15:49,080 Speaker 1: procedural chaos from what the Fifth Circuit and Judge O'Connor did. 279 00:15:49,560 --> 00:15:53,160 Speaker 2: The Fifth Circuit last term lost I think seven out 280 00:15:53,160 --> 00:15:55,640 Speaker 2: of a cases at the Supreme Court, and they have 281 00:15:56,360 --> 00:15:59,200 Speaker 2: a lot of cases before the court this year, and 282 00:15:59,440 --> 00:16:03,600 Speaker 2: many of them are from judges in Texas like rit 283 00:16:03,640 --> 00:16:07,680 Speaker 2: O'Connor that seem to have novel shall we say, novel 284 00:16:08,000 --> 00:16:09,800 Speaker 2: legal reasoning and their decisions. 285 00:16:10,120 --> 00:16:11,440 Speaker 1: I mean, do you think we have to I think 286 00:16:11,440 --> 00:16:13,480 Speaker 1: we have to be as a stronger word than novel. 287 00:16:13,720 --> 00:16:19,360 Speaker 1: Look in sophisticated litigation in federal courts, advocates, and courts 288 00:16:19,640 --> 00:16:24,200 Speaker 1: are advancing the law, So there's often something novel in 289 00:16:24,400 --> 00:16:29,120 Speaker 1: what they argue, in what courts hold. That's neither unexpected 290 00:16:29,160 --> 00:16:32,960 Speaker 1: nor unusual. What is problematic is when you have a 291 00:16:33,200 --> 00:16:37,480 Speaker 1: court and the federal judiciary in Texas, the district court 292 00:16:37,600 --> 00:16:40,520 Speaker 1: level is like this, and the Fifth Circuit is like this, 293 00:16:41,120 --> 00:16:48,200 Speaker 1: that is receptive to extreme arguments. They're not just creative novel, 294 00:16:48,640 --> 00:16:53,160 Speaker 1: they are highly contentious. Now, if you have a court 295 00:16:53,200 --> 00:16:56,560 Speaker 1: that is receptive to that, maybe some of those highly 296 00:16:56,560 --> 00:17:01,800 Speaker 1: contentious and highly extreme arguments well ultimately be vindicated. But 297 00:17:02,360 --> 00:17:05,800 Speaker 1: the more extreme the substance is of a position that's 298 00:17:05,840 --> 00:17:10,439 Speaker 1: being taken, the more cautious general courts are in composing 299 00:17:10,560 --> 00:17:16,560 Speaker 1: big procedural consequences until those big arguments and positions go 300 00:17:16,760 --> 00:17:21,199 Speaker 1: through the appellate process of review. So I think that 301 00:17:21,400 --> 00:17:25,240 Speaker 1: the Fifth Circuit and the Texas district courts in general 302 00:17:25,720 --> 00:17:30,439 Speaker 1: generate a lot of extreme positions. What we saw here 303 00:17:30,760 --> 00:17:36,720 Speaker 1: was this intersection of extreme positions and willingness first to 304 00:17:36,800 --> 00:17:40,240 Speaker 1: issue a very sweeping injunction on the basis of the 305 00:17:40,320 --> 00:17:45,040 Speaker 1: extreme position nationwide injunction, and then to sort of double 306 00:17:45,119 --> 00:17:48,119 Speaker 1: down on that after the Supreme Court said it wasn't appropriate. 307 00:17:48,440 --> 00:17:55,000 Speaker 1: The combination of extreme positions and aggressiveness about imposing consequences 308 00:17:55,480 --> 00:17:59,399 Speaker 1: before the appellate process has played out thoroughly is a 309 00:17:59,440 --> 00:18:03,960 Speaker 1: way of really throwing a spanner in the gears of adjudication, 310 00:18:04,200 --> 00:18:07,119 Speaker 1: as the Federal Court understands it, and they're just not 311 00:18:07,160 --> 00:18:08,000 Speaker 1: going to tolerate that. 312 00:18:08,600 --> 00:18:11,719 Speaker 2: So frame for us the message the Supreme Court is 313 00:18:11,760 --> 00:18:15,200 Speaker 2: sending to the Fifth Circuit and Judge O'Connor. 314 00:18:15,359 --> 00:18:19,320 Speaker 1: They're saying, don't play games with us about procedure. If 315 00:18:19,359 --> 00:18:23,159 Speaker 1: you have very good reason to believe that we've taken 316 00:18:23,320 --> 00:18:27,000 Speaker 1: a given position, don't pretend we haven't taken that position 317 00:18:27,440 --> 00:18:31,040 Speaker 1: and act contrary to what we already said. I mean, 318 00:18:31,080 --> 00:18:35,000 Speaker 1: in some ways, what they're saying is you cannot pretend 319 00:18:35,359 --> 00:18:37,760 Speaker 1: that we haven't spoken. I mean, in some sense, it 320 00:18:37,800 --> 00:18:41,440 Speaker 1: sounds so simple. When you have a judicial system that's 321 00:18:41,480 --> 00:18:45,520 Speaker 1: founded on the idea of appellate review, lower courts are 322 00:18:45,640 --> 00:18:49,920 Speaker 1: answerable to higher courts in that system. So in some sense, 323 00:18:50,000 --> 00:18:53,119 Speaker 1: it's very bizarre for the High Court to have to 324 00:18:53,160 --> 00:18:56,280 Speaker 1: issue an order that I think is basically saying you're 325 00:18:56,640 --> 00:18:59,720 Speaker 1: totally acting way outside of your job. 326 00:19:00,119 --> 00:19:02,560 Speaker 5: You are flouting your role. 327 00:19:02,880 --> 00:19:04,119 Speaker 1: That's what I think they were saying. 328 00:19:04,359 --> 00:19:06,800 Speaker 2: And we'll see if the Fifth Circuit and Judge O'Connor 329 00:19:07,160 --> 00:19:10,680 Speaker 2: have gotten that message. Thanks so much. That's Professor Heidi 330 00:19:10,800 --> 00:19:14,720 Speaker 2: Lee Feldman of Georgetown Law. A note. Michael Bloomberg, the 331 00:19:14,720 --> 00:19:18,000 Speaker 2: founder and majority owner of Bloomberg LP, the parent company 332 00:19:18,000 --> 00:19:21,280 Speaker 2: of Bloomberg Radio, is a donor to groups that support 333 00:19:21,359 --> 00:19:25,399 Speaker 2: gun control, including every Town for Gun Safety. Coming up 334 00:19:25,440 --> 00:19:28,919 Speaker 2: next on the Bloomberg Law Show, special counsel Jack Smith 335 00:19:29,000 --> 00:19:32,280 Speaker 2: tells Donald Trump to put up or shut up. I'm 336 00:19:32,320 --> 00:19:34,240 Speaker 2: June Grosso and you're listening to Bloomberg. 337 00:19:35,680 --> 00:19:38,720 Speaker 6: I made it clear I did not agree with the 338 00:19:38,760 --> 00:19:41,400 Speaker 6: idea of saying the election was stolen and putting out 339 00:19:41,400 --> 00:19:44,680 Speaker 6: this stuff, which I told the President was both, and 340 00:19:46,320 --> 00:19:48,359 Speaker 6: you know, I didn't want to be a part of it, 341 00:19:48,440 --> 00:19:50,359 Speaker 6: and that's one of the reasons that went into me 342 00:19:50,400 --> 00:19:51,800 Speaker 6: deciding to leave when I did. 343 00:19:52,000 --> 00:19:55,359 Speaker 2: Former Attorney General William Barr is just one of a 344 00:19:55,440 --> 00:19:58,600 Speaker 2: number of lawyers from the Justice Department, the White House, 345 00:19:58,880 --> 00:20:02,439 Speaker 2: and his own campaign who advised Donald Trump that the 346 00:20:02,480 --> 00:20:07,040 Speaker 2: twenty twenty election was not fraudulent. But the former president 347 00:20:07,280 --> 00:20:10,800 Speaker 2: rejected that advice and looked for outside lawyers who would 348 00:20:10,800 --> 00:20:13,600 Speaker 2: tell him what he wanted to hear, like John Eastman, 349 00:20:13,760 --> 00:20:17,640 Speaker 2: Sidney Powell, and Rudy Giuliani. Trump and his attorney John 350 00:20:17,720 --> 00:20:21,440 Speaker 2: Laurrow have repeatedly said publicly that they're going to use 351 00:20:21,480 --> 00:20:24,920 Speaker 2: the advice of those outside lawyers as a defense at 352 00:20:24,920 --> 00:20:27,960 Speaker 2: his trial on charges of attempting to overthrow the election. 353 00:20:28,760 --> 00:20:32,560 Speaker 7: Mister Trump had the advice of counsel mister Eastman, who 354 00:20:32,640 --> 00:20:35,840 Speaker 7: was one of the most respected constitutional scholars in the 355 00:20:35,920 --> 00:20:39,400 Speaker 7: United States, giving him advice and guidance. 356 00:20:39,119 --> 00:20:42,480 Speaker 2: But the Trump defense team hasn't told the trial judge 357 00:20:42,520 --> 00:20:45,879 Speaker 2: whether they're going to use that blame the lawyer's strategy. 358 00:20:46,240 --> 00:20:49,919 Speaker 2: So now special counsel Jack Smith is telling Trump in 359 00:20:50,000 --> 00:20:53,320 Speaker 2: non legal terms to put up or shut up. Joining 360 00:20:53,320 --> 00:20:55,840 Speaker 2: me is Barbara McQuaid, a professor at the University of 361 00:20:55,840 --> 00:20:58,800 Speaker 2: Michigan Law School and the former US Attorney for the 362 00:20:58,840 --> 00:21:01,600 Speaker 2: Eastern District of Mission Again. She's written a column for 363 00:21:01,760 --> 00:21:06,639 Speaker 2: MSNBC on the consequences of Trump using this defense. Jack Smith, 364 00:21:06,920 --> 00:21:09,760 Speaker 2: as you write in your column, is asking former President 365 00:21:09,800 --> 00:21:12,120 Speaker 2: Donald Trump to put his money where his mouth is, 366 00:21:12,440 --> 00:21:14,719 Speaker 2: or at least of what his documents there tell us. 367 00:21:14,720 --> 00:21:16,000 Speaker 2: What it's about well. 368 00:21:16,040 --> 00:21:20,000 Speaker 5: Donald Trump has very publicly hinted that his defense in 369 00:21:20,480 --> 00:21:23,280 Speaker 5: the case is going to be advice of counsel, that 370 00:21:23,359 --> 00:21:26,119 Speaker 5: he relied on lawyers like John Eastman and others to 371 00:21:26,200 --> 00:21:29,320 Speaker 5: tell him what he could do to challenge the election results, 372 00:21:29,359 --> 00:21:31,840 Speaker 5: and therefore he acted me faith and that makes it 373 00:21:31,880 --> 00:21:35,399 Speaker 5: impossible for the prosecution to prove his guilt. That's fine 374 00:21:35,400 --> 00:21:37,800 Speaker 5: if he wants to rely on that, but first he 375 00:21:37,840 --> 00:21:40,560 Speaker 5: has to show he had a legitimate attorney client privilege 376 00:21:40,600 --> 00:21:43,320 Speaker 5: with the people he's talking with. So far, twenty five 377 00:21:43,359 --> 00:21:45,920 Speaker 5: different people have asserted attorney client privilege in the case, 378 00:21:46,040 --> 00:21:48,080 Speaker 5: So that is not a foregone conclusion that he will 379 00:21:48,119 --> 00:21:50,359 Speaker 5: be able to establish that he had that relationship with 380 00:21:50,400 --> 00:21:52,679 Speaker 5: all twenty five of them, that he relied on their 381 00:21:52,680 --> 00:21:55,240 Speaker 5: advice and good faith. And if he wants to use 382 00:21:55,280 --> 00:21:58,560 Speaker 5: this defense, he must waive the attorney client privilege and 383 00:21:58,680 --> 00:22:03,240 Speaker 5: turn over all the documents memorializing any conversation he had 384 00:22:03,240 --> 00:22:06,440 Speaker 5: then he relied on, as well as anything that might 385 00:22:06,600 --> 00:22:09,879 Speaker 5: tend to negate that defense. And so he gets to 386 00:22:09,920 --> 00:22:13,119 Speaker 5: make a choice. Does he want to preserve his attorney 387 00:22:13,160 --> 00:22:15,879 Speaker 5: client privilege, that's fine, But if he does, and he 388 00:22:16,000 --> 00:22:19,560 Speaker 5: can't use this advice of council defense. And on the contrary, 389 00:22:19,600 --> 00:22:22,400 Speaker 5: if he wants to use the advice of council defense, 390 00:22:22,680 --> 00:22:25,520 Speaker 5: then he can't continue to safeguard the attorney client privilege 391 00:22:25,600 --> 00:22:28,399 Speaker 5: of these documents. And so the court has given a 392 00:22:28,840 --> 00:22:32,720 Speaker 5: discovery cut off date of December, and Special Counsel Jacksmith 393 00:22:32,760 --> 00:22:34,000 Speaker 5: is said, that's the time. 394 00:22:34,080 --> 00:22:34,600 Speaker 4: Which is it. 395 00:22:34,680 --> 00:22:36,560 Speaker 5: Are you going to use this defense or are you 396 00:22:36,640 --> 00:22:39,960 Speaker 5: going to turn over all of the material you previously 397 00:22:40,000 --> 00:22:41,480 Speaker 5: has said is privilege. 398 00:22:41,720 --> 00:22:46,000 Speaker 2: Is the special counsel contending that Trump can't use this defense, 399 00:22:46,200 --> 00:22:48,600 Speaker 2: doesn't meet the qualifications to use it. 400 00:22:48,920 --> 00:22:51,080 Speaker 5: He says, we are not making that argument yet, but 401 00:22:51,080 --> 00:22:53,080 Speaker 5: I will. I'm not waving that argument. I can test 402 00:22:53,080 --> 00:22:55,360 Speaker 5: his ability to use it. But if he uses it 403 00:22:55,480 --> 00:22:57,600 Speaker 5: in the court says he can use it, then he 404 00:22:57,720 --> 00:23:02,080 Speaker 5: must turn over all of those privileged materials materials to 405 00:23:02,119 --> 00:23:05,280 Speaker 5: Achu's claiming privilege. You can't have it both ways, and 406 00:23:05,320 --> 00:23:07,760 Speaker 5: so he's got to at some point make a decision. 407 00:23:08,160 --> 00:23:11,400 Speaker 2: Is the Special Council estimating that this is you know, 408 00:23:11,480 --> 00:23:14,840 Speaker 2: ten documents, twenty hundreds, I mean, is it a vast 409 00:23:15,000 --> 00:23:16,040 Speaker 2: volume of documents? 410 00:23:16,040 --> 00:23:18,919 Speaker 5: Perhaps no one really knows. It could be zero and 411 00:23:18,960 --> 00:23:22,040 Speaker 5: maybe that there's nothing. But there're twenty five people who 412 00:23:22,160 --> 00:23:25,639 Speaker 5: declined to testify or produce documents when subpoena to do 413 00:23:25,760 --> 00:23:29,160 Speaker 5: so by asserting attorney client privilege. And so I think 414 00:23:29,200 --> 00:23:31,640 Speaker 5: the time has come to litigate that to find out 415 00:23:31,640 --> 00:23:34,040 Speaker 5: whether any of them really has an attorney client privilege. 416 00:23:34,080 --> 00:23:36,720 Speaker 5: And if he's going to say I relied on the 417 00:23:36,760 --> 00:23:38,080 Speaker 5: advice of my attorneys, well. 418 00:23:38,000 --> 00:23:38,439 Speaker 4: Let's see it. 419 00:23:38,480 --> 00:23:40,199 Speaker 5: What was the advice. We need to see it, We 420 00:23:40,240 --> 00:23:43,640 Speaker 5: need to hear it so that prosecutors can rebut that defense. 421 00:23:44,000 --> 00:23:47,120 Speaker 2: I know in the Sam Bankman Freed trial, the judge 422 00:23:47,119 --> 00:23:50,480 Speaker 2: there ruled that the defense couldn't refer to advice of 423 00:23:50,640 --> 00:23:53,359 Speaker 2: counsel in the opening statements, that it would cause too 424 00:23:53,440 --> 00:23:56,800 Speaker 2: much confusion for the jury, and that if they wanted 425 00:23:56,840 --> 00:23:59,639 Speaker 2: to raise it later on and introduce evidence about it, 426 00:23:59,640 --> 00:24:02,720 Speaker 2: they would have to consult him. So does the judge 427 00:24:02,760 --> 00:24:05,960 Speaker 2: make the decision as to whether or not Trump can 428 00:24:06,359 --> 00:24:09,080 Speaker 2: use the affirmative defense of adviceive counsel. 429 00:24:09,480 --> 00:24:12,280 Speaker 5: Yes, it's sort of a threshold affirmative defense, and so 430 00:24:12,880 --> 00:24:15,160 Speaker 5: if he can show that he's got a basis for it, 431 00:24:15,320 --> 00:24:19,359 Speaker 5: he'd have to reveal this privileged material and then the 432 00:24:19,400 --> 00:24:21,520 Speaker 5: parties would argue it and litigate it, and the judge 433 00:24:21,520 --> 00:24:24,920 Speaker 5: would decide whether he gets to tell the jury about this. Now, 434 00:24:24,920 --> 00:24:27,159 Speaker 5: the jury might still say, I don't think it was 435 00:24:27,200 --> 00:24:29,280 Speaker 5: reasonable when you got this advice. No one would have 436 00:24:29,280 --> 00:24:32,880 Speaker 5: relied on this advice as any legitimate thing. But before 437 00:24:32,920 --> 00:24:35,239 Speaker 5: it even gets to the jury, the judge has to 438 00:24:35,240 --> 00:24:38,359 Speaker 5: make that heat keeper decision about whether it's going to 439 00:24:38,400 --> 00:24:40,840 Speaker 5: come in, and that is based on whether it meets 440 00:24:40,920 --> 00:24:44,200 Speaker 5: kind of the legal definition that it was privileged, that 441 00:24:44,240 --> 00:24:48,520 Speaker 5: a privileged relationship was developed, and that Donald Trump relied 442 00:24:48,560 --> 00:24:50,840 Speaker 5: on it in good faith. You have to make a 443 00:24:51,000 --> 00:24:54,080 Speaker 5: prima facie showing you know some evidence to suggest that 444 00:24:54,119 --> 00:24:57,040 Speaker 5: this is true before it'll go to the jury. And 445 00:24:57,080 --> 00:25:00,840 Speaker 5: the concern is if it is not a legitimate, then 446 00:25:00,880 --> 00:25:03,040 Speaker 5: you don't want to confuse the jury by letting them 447 00:25:03,080 --> 00:25:06,480 Speaker 5: hear about it without the judge first making that gatekeeper's call. 448 00:25:06,920 --> 00:25:10,400 Speaker 2: As you mentioned in your column, Trump rejected the advice 449 00:25:10,520 --> 00:25:14,399 Speaker 2: of White House lawyers, Justice Department lawyers, campaign lawyers in 450 00:25:14,480 --> 00:25:18,040 Speaker 2: favor of these outside council and three of them have 451 00:25:18,119 --> 00:25:21,920 Speaker 2: been indicted with him. In Georgia and Justice Week two, 452 00:25:22,160 --> 00:25:26,200 Speaker 2: Sidney Powell and Kenneth Cheeseborough have pleaded guilty to charges 453 00:25:26,200 --> 00:25:29,840 Speaker 2: in that case. Can Trump just pick and choose which 454 00:25:29,880 --> 00:25:31,960 Speaker 2: attorney's advice he wants to follow? 455 00:25:32,320 --> 00:25:34,400 Speaker 5: Well, the question for a jury if he gets past 456 00:25:34,440 --> 00:25:37,720 Speaker 5: that threshold stage would be to decide whether his reliance 457 00:25:37,800 --> 00:25:40,640 Speaker 5: on the Advisive Council was reasonable, And so I think 458 00:25:40,680 --> 00:25:43,480 Speaker 5: this would be evidence that cuts against a finding that 459 00:25:43,520 --> 00:25:46,240 Speaker 5: it was reasonable. I think William Barr has said this, 460 00:25:46,320 --> 00:25:49,560 Speaker 5: as has Mark Short, who was counseled to Mike Pence 461 00:25:49,720 --> 00:25:53,120 Speaker 5: to say, the Justice Department, the White House, his campaign 462 00:25:53,200 --> 00:25:55,960 Speaker 5: lawyers all said you cannot do this, and he went 463 00:25:56,040 --> 00:25:59,359 Speaker 5: looking for another opinion that would satisfy him that he 464 00:25:59,440 --> 00:26:02,320 Speaker 5: still had a route to victory. And it was sort 465 00:26:02,359 --> 00:26:05,879 Speaker 5: of a Kakameimi wild theory that he looked for until 466 00:26:05,880 --> 00:26:07,879 Speaker 5: he found the one that he liked. And so I 467 00:26:07,880 --> 00:26:11,000 Speaker 5: think the prosecutors would argue that to the extent he 468 00:26:11,040 --> 00:26:13,000 Speaker 5: relied on that advice who was not in good faith. 469 00:26:13,359 --> 00:26:16,560 Speaker 2: This is a really tough decision for the defense, isn't it, 470 00:26:16,600 --> 00:26:19,040 Speaker 2: Because you have all this material that they have to 471 00:26:19,080 --> 00:26:21,720 Speaker 2: turn over or we assume all this material. But then 472 00:26:21,760 --> 00:26:24,680 Speaker 2: on the other side, you have a defense that might 473 00:26:24,760 --> 00:26:28,040 Speaker 2: not work, and the judge might not even allow yes. 474 00:26:28,160 --> 00:26:29,480 Speaker 5: And I think, you know, this is some of the 475 00:26:29,520 --> 00:26:32,639 Speaker 5: strategy that occurs pre trial in cases that are usually 476 00:26:32,760 --> 00:26:35,440 Speaker 5: kind of outside of public view but are really interesting 477 00:26:35,520 --> 00:26:38,879 Speaker 5: questions that lawyers have to decide tactically. I imagine one of 478 00:26:38,920 --> 00:26:40,760 Speaker 5: the things you'd want to look at is what is 479 00:26:40,800 --> 00:26:43,200 Speaker 5: the material, how much is there and how damaging is 480 00:26:43,240 --> 00:26:45,919 Speaker 5: it to the defense. But this really has been, at 481 00:26:46,000 --> 00:26:48,760 Speaker 5: least in the court of public opinion, the defense raised 482 00:26:48,760 --> 00:26:51,760 Speaker 5: most frequently. That Donald Trump genuinely believed he could do 483 00:26:51,800 --> 00:26:54,439 Speaker 5: this because he has lawyers telling him he could, and 484 00:26:54,480 --> 00:26:57,080 Speaker 5: so it seems that he almost has to go with 485 00:26:57,119 --> 00:26:58,920 Speaker 5: that defense. And if he's going to, he needs to 486 00:26:58,960 --> 00:27:01,359 Speaker 5: turn over these documents. Now, I suppose he could change 487 00:27:01,359 --> 00:27:04,280 Speaker 5: his tech and decide that's not his strategy. After all, 488 00:27:04,480 --> 00:27:07,000 Speaker 5: he's got some other defense he's going to use, or 489 00:27:07,160 --> 00:27:09,000 Speaker 5: you know, he's not going to raise an affirmative defense 490 00:27:09,040 --> 00:27:10,919 Speaker 5: at all and put the government to its proofs. But 491 00:27:11,040 --> 00:27:12,359 Speaker 5: he can't have it both ways. 492 00:27:12,400 --> 00:27:14,960 Speaker 8: And that's the point that jacksm is making it his please. 493 00:27:15,080 --> 00:27:20,200 Speaker 2: Sometimes he changes strategies in mid sentence. I don't know so, Barbara, 494 00:27:20,280 --> 00:27:24,520 Speaker 2: from reading the papers, it seems the prosecution is admitting 495 00:27:24,640 --> 00:27:28,080 Speaker 2: that there's nothing in the federal Rules of Criminal Procedure 496 00:27:28,560 --> 00:27:32,040 Speaker 2: that says a judge can require a defendant to reveal 497 00:27:32,080 --> 00:27:36,119 Speaker 2: this advice of council defense before trial, which is what 498 00:27:36,160 --> 00:27:39,000 Speaker 2: the Special Council is asking here. So where do the 499 00:27:39,000 --> 00:27:41,200 Speaker 2: courts stand on that? Will it be up to the 500 00:27:41,320 --> 00:27:42,760 Speaker 2: judge to decide yes. 501 00:27:42,880 --> 00:27:46,040 Speaker 5: So there's nothing that really answers this question either way. 502 00:27:46,240 --> 00:27:49,520 Speaker 5: This is not a defense that gets raised with enough regularity. 503 00:27:49,560 --> 00:27:51,840 Speaker 5: I imagine that there's a specific rule on it. So, 504 00:27:51,960 --> 00:27:54,879 Speaker 5: for example, the Rules of Criminal Procedure do say you 505 00:27:54,960 --> 00:27:58,120 Speaker 5: must give advanced notice for an alibi defense or an 506 00:27:58,119 --> 00:28:03,040 Speaker 5: insanity defense or public authority defense, And that's because it 507 00:28:03,160 --> 00:28:06,040 Speaker 5: takes some time for the prosecution to sort of run 508 00:28:06,080 --> 00:28:08,760 Speaker 5: down those defenses to make sure they've got evidence to 509 00:28:08,920 --> 00:28:12,280 Speaker 5: rebut them. If you just allow the defendant to assert 510 00:28:12,320 --> 00:28:15,200 Speaker 5: it in the middle of a trial, it could encourage 511 00:28:15,320 --> 00:28:17,800 Speaker 5: people to raise it without any real basis, and the 512 00:28:17,800 --> 00:28:21,480 Speaker 5: government would lack the ability to investigate to try to 513 00:28:21,520 --> 00:28:25,560 Speaker 5: disprove those defenses. For adviceive counsel. The rules are really 514 00:28:25,600 --> 00:28:28,320 Speaker 5: silent on whether there needs to be advanced notice or not. 515 00:28:28,680 --> 00:28:31,280 Speaker 5: But what Jacksmith is arguing is this is very much 516 00:28:31,600 --> 00:28:34,560 Speaker 5: like those kinds of defenses, like an alibi defense or 517 00:28:34,600 --> 00:28:36,960 Speaker 5: an insanity defense, where if you spring it in the 518 00:28:37,000 --> 00:28:39,000 Speaker 5: middle of trial, it's going to be very difficult for 519 00:28:39,120 --> 00:28:42,640 Speaker 5: us to investigate this in a way that is thorough 520 00:28:42,760 --> 00:28:46,040 Speaker 5: and accurate, and so he should be forced to show 521 00:28:46,120 --> 00:28:49,520 Speaker 5: his hand before trial. They suggest December on this discovery 522 00:28:49,520 --> 00:28:52,120 Speaker 5: cutoff date, so that if he's going to use this defense, 523 00:28:52,280 --> 00:28:56,120 Speaker 5: they are going to get all of that allegedly privileged material, 524 00:28:56,360 --> 00:28:57,960 Speaker 5: and if it gets dumped on them in the middle 525 00:28:57,960 --> 00:29:01,800 Speaker 5: of trial, it would either causeous delay or an inability 526 00:29:01,840 --> 00:29:03,760 Speaker 5: to review it all at that stage. 527 00:29:03,800 --> 00:29:08,360 Speaker 2: When the defense responds to the Special Counsel's motion, it'll 528 00:29:08,400 --> 00:29:11,960 Speaker 2: be interesting to see whether there are any hints about 529 00:29:12,200 --> 00:29:16,320 Speaker 2: Trump's intention to use that advice of council defense. Thanks 530 00:29:16,360 --> 00:29:19,960 Speaker 2: so much, Barbara. That's Professor Barbara McQuaid of the University 531 00:29:20,000 --> 00:29:22,680 Speaker 2: of Michigan Law School. Coming up next on the Bloomberg 532 00:29:22,760 --> 00:29:25,600 Speaker 2: Law Show, we'll tell you about the partial gag or 533 00:29:25,800 --> 00:29:29,040 Speaker 2: the judge in the case issued against Donald Trump. I'm 534 00:29:29,120 --> 00:29:33,200 Speaker 2: June Grosso and you're listening to Bloomberg. My speech has. 535 00:29:33,120 --> 00:29:34,240 Speaker 4: Been taken away from me. 536 00:29:34,320 --> 00:29:37,080 Speaker 2: I'm a candidate that's running for office, and I'm not 537 00:29:37,120 --> 00:29:40,800 Speaker 2: allowed to stay. This is a real road. It's all 538 00:29:40,840 --> 00:29:43,040 Speaker 2: coming out of the Deparment of Justice. 539 00:29:43,200 --> 00:29:46,080 Speaker 4: Is all set up by bike and his thuffs that. 540 00:29:46,080 --> 00:29:47,000 Speaker 1: He's surrounded with. 541 00:29:47,600 --> 00:29:52,040 Speaker 2: Of course, contrary to his assertions, Donald Trump was in 542 00:29:52,080 --> 00:29:55,600 Speaker 2: fact still speaking to the media about his trial even 543 00:29:55,680 --> 00:30:00,280 Speaker 2: after federal Judge Tanya Chutkin imposed a partial gagg order 544 00:30:00,320 --> 00:30:04,040 Speaker 2: on him. The order bars the former president from publicly 545 00:30:04,120 --> 00:30:08,640 Speaker 2: criticizing witnesses, prosecutors, and court staff involved in the Special 546 00:30:08,680 --> 00:30:12,480 Speaker 2: Council's case charging him with plotting to overturn the twenty 547 00:30:12,560 --> 00:30:16,520 Speaker 2: twenty presidential election. Remarks like this, and. 548 00:30:16,440 --> 00:30:20,880 Speaker 6: Did you see today that deranged Jack Smith. He's the prosecutor. 549 00:30:20,920 --> 00:30:24,720 Speaker 6: He's a deranged person, wants to take away my rights. 550 00:30:25,000 --> 00:30:28,120 Speaker 2: The judge found that Trump's barrage of verbal attacks on 551 00:30:28,200 --> 00:30:31,760 Speaker 2: those involved in the case posed a significant and immediate 552 00:30:31,880 --> 00:30:35,680 Speaker 2: risk of intimidating witnesses and jeopardizing the safety of the 553 00:30:35,720 --> 00:30:39,880 Speaker 2: public servants involved. Joining me is former prosecutor Rebecca Royfie, 554 00:30:39,920 --> 00:30:42,840 Speaker 2: a professor at New York Law School. Rebecca tell us 555 00:30:42,880 --> 00:30:45,800 Speaker 2: about the competing interests the judge had to weigh in 556 00:30:45,920 --> 00:30:47,560 Speaker 2: making this decision on Monday. 557 00:30:48,200 --> 00:30:50,920 Speaker 8: So judges are in a difficult position because they're weighing 558 00:30:51,160 --> 00:30:57,600 Speaker 8: the importance of the integrity of their proceedings and concern 559 00:30:57,960 --> 00:31:03,720 Speaker 8: for manipulation of witnesses, potential jurors, and any other kind 560 00:31:03,800 --> 00:31:08,280 Speaker 8: of undermining of the fairness of the process, along with 561 00:31:08,560 --> 00:31:13,480 Speaker 8: a extremely important First Amendment right that anyone has to 562 00:31:13,600 --> 00:31:17,160 Speaker 8: speak out, but particularly somebody who's running for president of 563 00:31:17,200 --> 00:31:20,440 Speaker 8: the United States. She has to assert herself as control 564 00:31:20,520 --> 00:31:22,760 Speaker 8: in her courtroom in some manner. I mean, she can't 565 00:31:22,800 --> 00:31:25,000 Speaker 8: just let this go by. And so you know, I 566 00:31:25,000 --> 00:31:27,160 Speaker 8: think this is as good a solution as any. There's 567 00:31:27,200 --> 00:31:30,880 Speaker 8: certain restrictions, and my guess is she's not going to 568 00:31:31,840 --> 00:31:34,160 Speaker 8: police things when he runs right up to the line. 569 00:31:34,280 --> 00:31:37,520 Speaker 8: But you know, there's an outer limit and he can't 570 00:31:37,560 --> 00:31:39,600 Speaker 8: go too far beyond it. And I think, you know, 571 00:31:39,680 --> 00:31:43,160 Speaker 8: threatening particular witnesses, calling people out by name, the kind 572 00:31:43,200 --> 00:31:45,000 Speaker 8: of thing he did in the New York civil case 573 00:31:45,000 --> 00:31:47,800 Speaker 8: where he's posted a picture of a core clip, I mean, 574 00:31:47,800 --> 00:31:49,800 Speaker 8: and that's just making a mockery of the court room. 575 00:31:50,200 --> 00:31:53,120 Speaker 2: She mentioned some options if he violates the gag order, 576 00:31:53,160 --> 00:31:56,480 Speaker 2: including admonishing Trump in court, which I believe has been 577 00:31:56,520 --> 00:32:00,320 Speaker 2: done before by a couple of crimes, imposing financial panel's 578 00:32:00,600 --> 00:32:03,680 Speaker 2: home detention or evoking his pre trial Least, we know 579 00:32:03,800 --> 00:32:07,320 Speaker 2: that Trump has defied these kinds of court orders before. 580 00:32:07,680 --> 00:32:09,120 Speaker 2: What do you think it will take to make her 581 00:32:09,160 --> 00:32:09,800 Speaker 2: act on it. 582 00:32:10,320 --> 00:32:13,120 Speaker 8: I think what she's trying to do is emphasize the 583 00:32:13,160 --> 00:32:15,640 Speaker 8: power of a court order that once it's in place, 584 00:32:15,800 --> 00:32:19,440 Speaker 8: it's easier to enforce than these vague conditions of release 585 00:32:19,560 --> 00:32:21,840 Speaker 8: that may or may not have been violated, and that 586 00:32:22,000 --> 00:32:24,920 Speaker 8: requires some kind of adversary process that she's saying this 587 00:32:24,960 --> 00:32:28,160 Speaker 8: could be very quick and very swift and severe, and 588 00:32:28,200 --> 00:32:30,120 Speaker 8: that is just a way of trying to get him 589 00:32:30,160 --> 00:32:32,280 Speaker 8: not to do it. Whether that's successful, I don't know, 590 00:32:32,400 --> 00:32:36,720 Speaker 8: because he also understands that her hands are tied in 591 00:32:36,840 --> 00:32:39,520 Speaker 8: part by his role. That to put him on home 592 00:32:39,640 --> 00:32:42,200 Speaker 8: arrest or to put him in prison while he's running 593 00:32:42,240 --> 00:32:45,600 Speaker 8: for president, I mean, that would be so extreme and 594 00:32:45,680 --> 00:32:47,640 Speaker 8: there's no chance that she's going to do that, So 595 00:32:47,840 --> 00:32:49,640 Speaker 8: she puts it on the table. Of course, legally she's 596 00:32:49,680 --> 00:32:51,400 Speaker 8: allowed to do it, but she's never going to do it. 597 00:32:51,440 --> 00:32:54,840 Speaker 8: And to what extent is he here to push that? 598 00:32:55,120 --> 00:32:58,560 Speaker 8: And if she does it. It's this great political windfall 599 00:32:58,600 --> 00:33:01,200 Speaker 8: for him because he could say that the Biden administration 600 00:33:01,320 --> 00:33:03,480 Speaker 8: locking me up so I won't win, or he gets 601 00:33:03,520 --> 00:33:05,720 Speaker 8: away with it. And so in a way, it's sort 602 00:33:05,760 --> 00:33:06,600 Speaker 8: of a genius move. 603 00:33:06,680 --> 00:33:07,600 Speaker 4: I mean, this is. 604 00:33:07,520 --> 00:33:10,240 Speaker 8: Trump's particular genius, his ability to do this and his 605 00:33:10,320 --> 00:33:11,120 Speaker 8: willingness to do this. 606 00:33:11,440 --> 00:33:15,080 Speaker 2: A day after the judge issued this order, Trump filed 607 00:33:15,160 --> 00:33:17,640 Speaker 2: notice that he's going to appeal it. Do you think 608 00:33:17,680 --> 00:33:20,280 Speaker 2: that this order will withstand and appeal? 609 00:33:20,880 --> 00:33:23,600 Speaker 8: My guess is it will. It was narrowly drawn, and 610 00:33:23,640 --> 00:33:27,280 Speaker 8: it isn't too far away from what judges do in 611 00:33:27,360 --> 00:33:32,040 Speaker 8: situations like this. I think the untested territory is just 612 00:33:32,160 --> 00:33:35,200 Speaker 8: the stature and the nature of the defendant here, and 613 00:33:35,240 --> 00:33:38,960 Speaker 8: he is running for president, and so the core political 614 00:33:39,000 --> 00:33:41,160 Speaker 8: speech is like at the very core of the very core, 615 00:33:41,720 --> 00:33:45,000 Speaker 8: and so you know, it is possible that an appellate 616 00:33:45,040 --> 00:33:47,200 Speaker 8: court could disagree with her, but there's a lot of 617 00:33:47,200 --> 00:33:51,080 Speaker 8: deference here, and she hasn't done anything wild or extremely 618 00:33:51,200 --> 00:33:54,400 Speaker 8: unusual here. So my guess is that there won't be 619 00:33:54,440 --> 00:33:57,280 Speaker 8: a reversal of the gag order. And he runs right 620 00:33:57,320 --> 00:33:59,120 Speaker 8: up to the line and kind of pushes it, and 621 00:33:59,160 --> 00:34:01,280 Speaker 8: she admonishes, and this is kind of a game that 622 00:34:01,320 --> 00:34:02,640 Speaker 8: goes all the way up until March. 623 00:34:02,920 --> 00:34:05,760 Speaker 2: We'll see what the DC Circuit says. Thanks so much, Rebecca. 624 00:34:05,920 --> 00:34:09,200 Speaker 2: That's Professor Rebecca Royfe of New York Law School. This 625 00:34:09,280 --> 00:34:12,640 Speaker 2: is Bloomberg Law on Bloomberg Radio. I'm June Grosso. Stay 626 00:34:12,640 --> 00:34:16,040 Speaker 2: with us. Today's top stories and global business headlines are 627 00:34:16,080 --> 00:34:17,320 Speaker 2: coming up right now.