WEBVTT - Weekend Law: Ghost Guns, SBF & Special Counsel 0:00:03.200 --> 0:00:08.000 This is Bloomberg Law with June Grosso from Bloomberg Radio. 0:00:09.600 --> 0:00:13.119 Welcome to Bloomberg Law. I'm June Grosso. Ahead. In this hour, 0:00:13.440 --> 0:00:17.240 the prosecution is wrapping up its case against Sam Bankman Freed, 0:00:17.520 --> 0:00:20.759 leaving him with a critical decision to make. Inside the 0:00:20.800 --> 0:00:25.880 Supreme Court's second decision allowing Biden's ghost gun regulations, Jack 0:00:25.920 --> 0:00:29.200 Smith tells Trump to put up or shut up, and 0:00:29.480 --> 0:00:35.800 another judge imposes a gag order on Trump res to 0:00:35.880 --> 0:00:39.600 Suard that this committee will not stop until we uncover 0:00:39.680 --> 0:00:44.040 the full truth behind the collapse of FTX. Last December, 0:00:44.080 --> 0:00:47.320 at the House Financial Services Committee hearing on the collapse 0:00:47.320 --> 0:00:52.080 of cryptocurrency firm FTX, John Ray, who was appointed to 0:00:52.159 --> 0:00:56.160 pick up the pieces, testified about what was uncovered during 0:00:56.160 --> 0:00:57.560 an internal investigation. 0:00:58.040 --> 0:01:01.440 The FTX groups collapse appears the time from absolute concentration 0:01:01.520 --> 0:01:04.240 of control in the hands of a small group of 0:01:04.319 --> 0:01:10.080 grossly inexperienced, unsophisticated individuals who failed to implement virtually any 0:01:10.200 --> 0:01:13.240 of the systems or controls that are necessary for a 0:01:13.280 --> 0:01:16.320 company entrusted with other people's money or assets. 0:01:16.640 --> 0:01:21.600 And it's with three of those inexperienced and unsophisticated individuals 0:01:21.720 --> 0:01:25.280 that the prosecution has built its criminal fraud case against 0:01:25.280 --> 0:01:29.040 Sam Bankman Freed, accusing him of using billions of customer 0:01:29.120 --> 0:01:33.680 funds from FTX to spend lavishly and engage in speculative 0:01:33.720 --> 0:01:38.000 trading through its sister hedge fund. The prosecution is expected 0:01:38.040 --> 0:01:41.160 to wrap up its case next week, leaving the defense 0:01:41.240 --> 0:01:44.720 with the critical question of whether Bankment Freed will take 0:01:44.760 --> 0:01:48.240 the stand in his own defense, and any answer is 0:01:48.320 --> 0:01:52.240 fraught with uncertainty. Joining me is former federal prosecutor Michael 0:01:52.280 --> 0:01:56.440 Weinstein of Coal Shots. Michael. In week three, it seems 0:01:56.480 --> 0:02:01.120 like the prosecution has built an almost insurmountable case against 0:02:01.200 --> 0:02:02.040 Bankman Freed. 0:02:02.360 --> 0:02:05.120 It's an extremely strong case for three reasons. Number one, 0:02:05.160 --> 0:02:08.600 because they have first hand individuals who were in the 0:02:08.680 --> 0:02:13.000 room at the table discussing certain acts those being criminal, 0:02:13.120 --> 0:02:16.640 which present a problem for Sam Bacon Freed. They also 0:02:16.760 --> 0:02:21.639 have documents and slack messages and text messages which are 0:02:21.720 --> 0:02:25.240 problematic as well, which supports the improper discussions that were 0:02:25.280 --> 0:02:29.040 being held. And then number three, they have the industry 0:02:29.080 --> 0:02:33.680 itself is fraught with problems and the representations that were 0:02:33.720 --> 0:02:37.040 made to investors and things of that nature, which he 0:02:37.160 --> 0:02:41.040 has said publicly prior to the criminal charges being brought. 0:02:41.200 --> 0:02:44.040 So that's a trifecta of problems for mister Freed, and 0:02:44.120 --> 0:02:46.960 I think his defense lawyers are having a difficult time 0:02:47.280 --> 0:02:49.679 chipping away at some of the things that are being 0:02:49.720 --> 0:02:53.440 said through testimony, notwithstanding the great efforts that they are 0:02:53.520 --> 0:02:54.240 trying to make. 0:02:54.600 --> 0:02:57.280 And I've raised this before that even pre trial, the 0:02:57.280 --> 0:03:00.919 most important rulings seem to go again against the defense, 0:03:01.320 --> 0:03:05.680 and during the trial on cross examination, Judge Caplan seems 0:03:05.720 --> 0:03:09.040 to be keeping the defense lawyers very much in check. 0:03:09.280 --> 0:03:12.320 Yeah, so that's correct. So not only is the defense 0:03:12.680 --> 0:03:16.600 up against testimony and documents, they're up against the judge 0:03:16.880 --> 0:03:19.960 and the structure of the proceeding, and the judge prior 0:03:20.000 --> 0:03:23.280 to trial, for example, you know, prohibited certain of the 0:03:23.320 --> 0:03:26.119 defense witnesses that they wanted to bring in. Example number 0:03:26.160 --> 0:03:28.160 one is the expert from Britain that they wanted to 0:03:28.160 --> 0:03:30.240 bring in to talk about the terms and conditions. So 0:03:30.639 --> 0:03:33.080 their hands were tied from the start of this case, 0:03:33.240 --> 0:03:36.080 and that's really playing out now. In reality, those. 0:03:35.920 --> 0:03:39.920 Will be appealed. But how much are issues like that 0:03:40.400 --> 0:03:42.680 left to the discretion of the judge. I mean, we 0:03:42.720 --> 0:03:45.200 all know it's very difficult to get a conviction, assuming 0:03:45.240 --> 0:03:48.240 he's convicted overturned. How much is that in the discretion 0:03:48.400 --> 0:03:49.680 of the judge. 0:03:49.280 --> 0:03:52.200 A tremendous amount. The judge is the referee essentially, and 0:03:52.240 --> 0:03:55.200 he is able to call balls and strike when necessary. 0:03:55.640 --> 0:03:58.120 And there is guidance through the appellate courts, through the 0:03:58.120 --> 0:04:01.360 Second Circuit, for example, or through other rulings that the 0:04:01.400 --> 0:04:04.040 courts have made, or for instance, the Federal rules of 0:04:04.080 --> 0:04:07.560 criminal procedure guide the court in making those decisions. But 0:04:07.640 --> 0:04:10.800 the judge has given great latitude in determining the type 0:04:10.800 --> 0:04:13.680 of evidence, the relevance of that evidence, how it comes in, 0:04:14.000 --> 0:04:17.080 whether it comes in, whether it can be challenged, things 0:04:17.120 --> 0:04:17.800 of that nature. 0:04:18.160 --> 0:04:22.159 So you had these three witnesses who decided to cooperate 0:04:22.200 --> 0:04:25.760 with the state to our longtime friends of his ones 0:04:25.760 --> 0:04:30.640 a former girlfriend. Does that make their testimony more believable? 0:04:31.240 --> 0:04:35.040 I think it does. And the reason is because they're 0:04:35.080 --> 0:04:38.880 not nuanceto the scene. It's not as though for six months, 0:04:38.920 --> 0:04:41.200 you know, they dropped in out of the sky, and 0:04:41.240 --> 0:04:44.760 then in that six month period there were some criminal acts. 0:04:44.920 --> 0:04:48.080 They gave a little bit of the longer history that 0:04:48.120 --> 0:04:51.080 they had with Sam Bank and Free both the run 0:04:51.240 --> 0:04:54.800 up to him starting the business, their involvement, their role 0:04:54.880 --> 0:04:58.080 in the company, and then ultimately it's spiraling out of control. 0:04:58.200 --> 0:05:00.000 And I think that gives them a little bit of 0:05:00.080 --> 0:05:03.400 credibility in the jury's eyes, because you know, they can 0:05:03.440 --> 0:05:05.880 give a little bit more context, and when they speak 0:05:05.920 --> 0:05:09.120 to things like what Sam bank Unfried was saying at 0:05:09.160 --> 0:05:11.240 some of those meetings and some of the decisions he 0:05:11.400 --> 0:05:13.960 was making, they can give some context to that because 0:05:13.960 --> 0:05:17.040 they've known him so long and so from my perspective, 0:05:17.040 --> 0:05:21.320 when you've got that longtime relationship, that favors the government. 0:05:21.520 --> 0:05:25.960 Insofar as the testimony coming out and really hurting the defendant, by. 0:05:25.839 --> 0:05:28.560 All accounts, the defense didn't make much headway in the 0:05:28.600 --> 0:05:33.800 cross examination of those three Inner Circle witnesses. They did 0:05:33.839 --> 0:05:36.760 poke some holes in the testimony here and there. Does 0:05:36.800 --> 0:05:37.800 that really help. 0:05:37.600 --> 0:05:40.360 In the end? I think the answers probably know it's 0:05:40.360 --> 0:05:42.240 like chopping down an oak tree. You can take a 0:05:42.240 --> 0:05:44.200 couple of swings with an ax, but that's not going 0:05:44.279 --> 0:05:45.280 to take down the tree. 0:05:45.360 --> 0:05:47.239 What about the fact that all three of the Inner 0:05:47.240 --> 0:05:51.760 Circle witnesses, the cooperating witnesses, testified, Yeah, I took part 0:05:51.800 --> 0:05:54.280 in this, but he directed me to do it, and 0:05:54.320 --> 0:05:57.359 when things fell apart, it was mea culpa, maya culpa. 0:05:57.640 --> 0:06:00.920 And now they're testifying to get a better deal, maybe 0:06:00.960 --> 0:06:02.520 even to avoid jail time. 0:06:02.800 --> 0:06:06.280 Well, that certainly is how the defense wants to frame it. 0:06:06.360 --> 0:06:09.080 I think the difficulty with that is they're not getting off. 0:06:09.120 --> 0:06:13.200 They've pled guilty to very significant and very material criminal 0:06:13.279 --> 0:06:16.400 charges which will carry with its significant penalties. And that's 0:06:16.440 --> 0:06:19.040 the response to when the defense says to them during 0:06:19.040 --> 0:06:21.440 a cross examination and did say to them, well, aren't 0:06:21.440 --> 0:06:23.760 you getting a sweetheart deal now? And that's always the 0:06:23.880 --> 0:06:26.240 push and pull when you have a cooperating witness on 0:06:26.240 --> 0:06:28.640 the witness stand, is you know, are they getting really 0:06:28.640 --> 0:06:31.120 a sweetheart deal? And that's where the jury to assess 0:06:31.160 --> 0:06:34.120 their credibility to a jury to assess are they testifying 0:06:34.200 --> 0:06:36.960 only to get a better deal here? It doesn't look 0:06:37.000 --> 0:06:39.000 like they got a great deal here. They knew that 0:06:39.080 --> 0:06:41.599 they were kind of dead in their tracks and wanted 0:06:41.600 --> 0:06:44.440 to save some semblance of the remainder of their life 0:06:44.640 --> 0:06:47.000 by fleading guilty and then moving on with their life. 0:06:47.000 --> 0:06:49.520 But as a consequence to that, they had to testify 0:06:49.560 --> 0:06:50.640 against their former friend. 0:06:50.839 --> 0:06:52.599 Do you think they'll actually serve jail time. 0:06:53.040 --> 0:06:55.520 I think they have real exposure. Yes, there's a lot 0:06:55.560 --> 0:06:57.200 of money here. I think a lot of eyes are 0:06:57.200 --> 0:06:59.400 going to be looking at all of these pleas and 0:06:59.440 --> 0:07:01.080 I think they have some real problems here. 0:07:01.400 --> 0:07:04.560 What do you think of the prosecution's portrayal of bankman 0:07:04.680 --> 0:07:08.880 Freed as this evil puppet master pulling everyone's strings. 0:07:09.279 --> 0:07:11.640 Look, I mean, I think that's somewhat of the narrative 0:07:11.680 --> 0:07:14.800 that the government has to tell. They don't want to 0:07:14.880 --> 0:07:18.679 suggest that he was this ninety twenty year old kid 0:07:19.040 --> 0:07:21.600 just you know, playing with house money. I think they 0:07:21.640 --> 0:07:23.360 have to make him out to be a little bit 0:07:23.360 --> 0:07:26.400 more sinister, a little more systematic. I'm a little bit 0:07:26.400 --> 0:07:29.080 more conniving. That is just part of their narrative. I mean, 0:07:29.120 --> 0:07:31.520 when I look at all of these guys, the three 0:07:31.520 --> 0:07:34.640 cooperating witnesses who played guilty and standbank and free, it 0:07:34.760 --> 0:07:36.160 just reminds me of when I sit in the room 0:07:36.200 --> 0:07:37.840 and I look at my nieces and nephews who were 0:07:37.840 --> 0:07:40.000 in their twenties, and I look and I think to myself, 0:07:40.080 --> 0:07:43.280 could they be entrusted with ten twenty thirty billion dollars? 0:07:43.360 --> 0:07:46.000 And the answer is no, you know, And it's remarkable 0:07:46.080 --> 0:07:50.360 to me that very sophisticated investors gave so much money 0:07:50.400 --> 0:07:53.080 repeatedly to a group of people that were in their 0:07:53.080 --> 0:07:55.640 mid twenties, and we're, you know, waving a shiny object, 0:07:55.680 --> 0:07:59.600 which was cryptocurrency. So that's a larger takeaway from this situation. 0:08:00.160 --> 0:08:02.480 I think all four of them have some real exposure here. 0:08:02.640 --> 0:08:05.960 The big question is at every criminal trial is whether 0:08:06.160 --> 0:08:09.720 the defendant will take the stand in his own defense. 0:08:09.920 --> 0:08:12.640 What do you think? I think that's a great question, 0:08:12.720 --> 0:08:15.720 and someone in Vegas is probably betting on that. I 0:08:15.720 --> 0:08:18.560 think he may want to do something. His lawyers may 0:08:18.600 --> 0:08:21.600 want to do something very different, although I think they're 0:08:21.680 --> 0:08:24.400 setting it up with the recent argument that he's not 0:08:24.400 --> 0:08:27.080 getting his medication, he's not able to assist in his 0:08:27.120 --> 0:08:30.480 own defense. So you can kind of see the ground 0:08:30.640 --> 0:08:34.000 work being laid where they may not call him because 0:08:34.040 --> 0:08:36.880 he's not getting his medication, and maybe they're setting up 0:08:36.880 --> 0:08:40.160 an appeal issue that he maybe would have testified. But look, 0:08:40.200 --> 0:08:43.959 the reason defendants testify is because they believe that they 0:08:44.000 --> 0:08:46.959 can tell their story better and they can provide an 0:08:46.960 --> 0:08:50.160 explanation and they can justify what they did and how 0:08:50.160 --> 0:08:53.640 they did it. Here, that's very, very difficult because he's 0:08:53.679 --> 0:08:56.640 going to have to counter three people who were in 0:08:56.760 --> 0:09:01.680 the room during these discussions, who all gave pretty consistent testimony. 0:09:02.000 --> 0:09:05.680 And for him to testify, of course, he's opening himself 0:09:05.760 --> 0:09:09.040 up and risking a pretty ferocious cross examination, and that 0:09:09.280 --> 0:09:11.520 is a real problem for him in all. 0:09:11.360 --> 0:09:14.319 The prior statements he's made. But well, I want to 0:09:14.320 --> 0:09:16.920 say it's his only hope, his only chance to convince 0:09:16.960 --> 0:09:18.520 perhaps one or two jurors. 0:09:19.000 --> 0:09:21.800 Correct. I mean, he may feel, and his defense lawyers 0:09:21.800 --> 0:09:24.160 may feel, what have I got to lose? We're deep 0:09:24.200 --> 0:09:26.400 in the hole here, and this may be the only 0:09:26.480 --> 0:09:30.040 ladder out is to have him testify and to humanize 0:09:30.080 --> 0:09:33.080 the situation and to talk about how he really tried 0:09:33.080 --> 0:09:35.680 to do all the right things, and he wasn't misleading anyone, 0:09:35.720 --> 0:09:37.839 and he really tried to make, you know, good decisions, 0:09:37.880 --> 0:09:40.840 and he relied upon other people. He relied upon Miss Ellison, 0:09:41.000 --> 0:09:44.040 he relied upon mister Gary Wong, things of that nature. 0:09:44.160 --> 0:09:47.160 But again, as good as he thinks his testimony is 0:09:47.160 --> 0:09:50.480 going to come off, the prosecution is salivating, waiting in 0:09:50.520 --> 0:09:53.360 the wings to cross examine him and to use a 0:09:53.480 --> 0:09:57.320 multitude of statements he's made previously in their examination and 0:09:57.320 --> 0:09:58.679 that's going to be quite fascinating. 0:09:58.880 --> 0:10:01.080 Well, if he does take this, and there's one thing 0:10:01.120 --> 0:10:04.719 that's certain, the courtroom will be packed, and we may 0:10:04.760 --> 0:10:08.440 find out as early as next Thursday. Thanks so much, Michael. 0:10:08.640 --> 0:10:13.080 That's former federal prosecutor Michael Weinstein of Cole Shots. Coming 0:10:13.160 --> 0:10:15.920 up next on the Bloomberg Law Show. It's a Supreme 0:10:16.000 --> 0:10:19.920 Court decision about regulations on ghost guns. But the justices 0:10:20.000 --> 0:10:23.080 seem to be sending a strong message to the Fifth 0:10:23.120 --> 0:10:26.520 Circuit and a Texas judge. I'm June Grosso and you're 0:10:26.600 --> 0:10:30.280 listening to Bloomberg. Last month, New York City Mayor Eric 0:10:30.360 --> 0:10:33.640 Adams announced that in a search of a private daycare 0:10:33.800 --> 0:10:38.320 in Harlem, police recovered drugs, ghost guns, and the three 0:10:38.400 --> 0:10:41.400 D printer used to make them. Who would have thought 0:10:41.679 --> 0:10:47.880 that we must add to our list of inspections of 0:10:47.920 --> 0:10:49.920 do we have three D printers that. 0:10:49.840 --> 0:10:50.760 Can print guns? 0:10:51.600 --> 0:10:55.600 The Biden administration has issued regulations on these ghost guns, 0:10:55.920 --> 0:11:00.000 which are assembled from kits without the usual serial numbers 0:10:59.640 --> 0:11:04.360 and background checks on purchasers, making them attractive to teenagers 0:11:04.440 --> 0:11:07.520 and those with criminal records. And this week, for the 0:11:07.559 --> 0:11:11.559 second time in three months, the Supreme Court has reinstated 0:11:11.600 --> 0:11:17.120 those regulations, blocking a second nationwide injunction issued by Texas 0:11:17.120 --> 0:11:21.160 Federal Judge Rite O'Connor and okayed by the Fifth Circuit. 0:11:21.480 --> 0:11:24.080 Does this mean the Supreme Court is telling the judge 0:11:24.080 --> 0:11:27.160 and the Fifth Circuit no, means no? Or does it 0:11:27.240 --> 0:11:32.000 mean something more substantive about ghost gun regulations joining me 0:11:32.040 --> 0:11:35.800 is Heidi Lee Feldman, a professor at Georgetown Law. So 0:11:36.040 --> 0:11:39.480 let's go back to the August decision where the Supreme 0:11:39.559 --> 0:11:44.360 Court blocked a nationwide injunction by Judge rite O'Connor and 0:11:44.480 --> 0:11:48.679 allowed the government to keep enforcing the regulations on ghost guns. 0:11:49.040 --> 0:11:51.560 Should that have been the end of this until the 0:11:51.600 --> 0:11:54.000 case was fully litigated. 0:11:53.600 --> 0:11:56.600 One would have thought so. And that's certainly ultimately the 0:11:56.640 --> 0:12:00.920 position the government took. It was very peculiar that they 0:12:01.040 --> 0:12:04.920 sought an injunction pending appeal. That is, an alteration in 0:12:05.000 --> 0:12:08.959 the procedural posture of the case. They didn't give any 0:12:09.080 --> 0:12:13.960 new reason for seeking an injunction while the case was pending, 0:12:14.160 --> 0:12:17.640 and that was I think the really controversial thing. Nothing 0:12:17.760 --> 0:12:21.040 had changed in the facts or the law that would 0:12:21.040 --> 0:12:24.920 be relevant to granting an injunction. So ordinarily, if a 0:12:24.960 --> 0:12:28.559 party did that the judge would just deny it because 0:12:28.600 --> 0:12:33.079 they had just had an injunction overturned by the Supreme Court. 0:12:33.559 --> 0:12:37.760 Of course, in this case, Judge O'Connor granted the injunction 0:12:38.200 --> 0:12:41.560 and didn't give any new reasons, and the Court really 0:12:41.760 --> 0:12:45.079 just put the kebash on that and said no, no. 0:12:45.600 --> 0:12:48.440 Also, the Fifth Circuit upheld his order. 0:12:48.800 --> 0:12:53.160 Yeah, look, there's several very contested matters that are driving 0:12:53.160 --> 0:12:57.040 this litigation. Ghost gun manufacturers come in and say, we 0:12:57.160 --> 0:13:02.280 object to this ATF rule making, which seems to require 0:13:02.400 --> 0:13:05.920 us to take all sorts of steps that people who 0:13:06.000 --> 0:13:11.080 make firearms have to take. We're arguing we're not firearms manufacturers, 0:13:11.080 --> 0:13:15.959 we're parts suppliers. So that whole dynamic introduces guns into 0:13:16.000 --> 0:13:20.000 the mix. Then we have a federal agency ATF, which 0:13:20.040 --> 0:13:24.319 has its own long complicated history. Then we have a judiciary, 0:13:24.840 --> 0:13:29.520 certainly O'Connor and the Fifth Circuit, that's very keen to 0:13:29.640 --> 0:13:34.719 invalidate agency rulemaking. So I think the Fifth Circuit as 0:13:34.720 --> 0:13:39.000 a whole was very moved by that agenda, and so 0:13:39.040 --> 0:13:42.760 they do uphold O'Connor's order, And so ultimately, of course, 0:13:42.760 --> 0:13:46.240 the Supreme Court is rejecting the Fifth Circuits position as 0:13:46.240 --> 0:13:49.559 well as O'Connor's position on the injunction. But the fact 0:13:49.559 --> 0:13:52.679 that the Supreme Court took that position isn't an indication 0:13:52.760 --> 0:13:55.319 of how they would ultimately rule on the merits as 0:13:55.400 --> 0:13:58.000 much as I think it was a rejection of the 0:13:58.120 --> 0:14:01.080 challenge to the authority of their earlier ruling. 0:14:01.720 --> 0:14:04.520 So the Court's August order was a five to four 0:14:04.600 --> 0:14:08.240 decision where Chief Justice John Roberts and Justice Amy Cony 0:14:08.280 --> 0:14:11.800 Barrett joined the Court's three liberals. So there were four 0:14:11.880 --> 0:14:17.400 descents in August, but no justice publicly dissented from this 0:14:17.559 --> 0:14:20.600 order that was handed down on Monday. Does that mean 0:14:20.680 --> 0:14:23.360 the justices are telling the judge in the Fifth Circuit 0:14:23.440 --> 0:14:27.240 no means no? Or does it mean something more substantive 0:14:27.560 --> 0:14:29.200 about ghost gun regulations. 0:14:29.680 --> 0:14:33.840 It's very hard to read tea leaves from these orders 0:14:33.840 --> 0:14:38.160 that are issued without opinions, and these are orders that 0:14:38.280 --> 0:14:42.080 relate to not the final merits on the case. So 0:14:42.480 --> 0:14:45.120 I want to sound a note of caution. I think 0:14:45.160 --> 0:14:48.480 that there are justices on the Court who may be 0:14:48.880 --> 0:14:53.640 very unsympathetic to the ATF rulemaking related to ghost guns, 0:14:53.960 --> 0:14:59.040 who realize that you simply cannot operate our system of 0:14:59.160 --> 0:15:04.040 litigating ca case by case and letting different courts reach 0:15:04.080 --> 0:15:08.600 different conclusions if they disagree, and seeing what emerges up 0:15:08.640 --> 0:15:11.280 through the process and what rit O'Connor and the Fifth 0:15:11.280 --> 0:15:15.440 Circuit wanted to do absolutely disrupts that process. It also 0:15:15.520 --> 0:15:18.840 wastes the Supreme Court's time. I mean, they do not 0:15:19.120 --> 0:15:24.720 want to have to keep issuing redundant interlocutory orders. That's 0:15:24.840 --> 0:15:28.960 just completely inefficient for them. So I think you could 0:15:29.000 --> 0:15:33.400 have justices who may be less sympathetic to the idea 0:15:33.440 --> 0:15:37.120 of letting the ATF rule making stand or more sympathetic 0:15:37.240 --> 0:15:43.760 to relatively unfettered sales of ghost guns, who nevertheless see 0:15:44.040 --> 0:15:49.080 procedural chaos from what the Fifth Circuit and Judge O'Connor did. 0:15:49.560 --> 0:15:53.160 The Fifth Circuit last term lost I think seven out 0:15:53.160 --> 0:15:55.640 of a cases at the Supreme Court, and they have 0:15:56.360 --> 0:15:59.200 a lot of cases before the court this year, and 0:15:59.440 --> 0:16:03.600 many of them are from judges in Texas like rit 0:16:03.640 --> 0:16:07.680 O'Connor that seem to have novel shall we say, novel 0:16:08.000 --> 0:16:09.800 legal reasoning and their decisions. 0:16:10.120 --> 0:16:11.440 I mean, do you think we have to I think 0:16:11.440 --> 0:16:13.480 we have to be as a stronger word than novel. 0:16:13.720 --> 0:16:19.360 Look in sophisticated litigation in federal courts, advocates, and courts 0:16:19.640 --> 0:16:24.200 are advancing the law, So there's often something novel in 0:16:24.400 --> 0:16:29.120 what they argue, in what courts hold. That's neither unexpected 0:16:29.160 --> 0:16:32.960 nor unusual. What is problematic is when you have a 0:16:33.200 --> 0:16:37.480 court and the federal judiciary in Texas, the district court 0:16:37.600 --> 0:16:40.520 level is like this, and the Fifth Circuit is like this, 0:16:41.120 --> 0:16:48.200 that is receptive to extreme arguments. They're not just creative novel, 0:16:48.640 --> 0:16:53.160 they are highly contentious. Now, if you have a court 0:16:53.200 --> 0:16:56.560 that is receptive to that, maybe some of those highly 0:16:56.560 --> 0:17:01.800 contentious and highly extreme arguments well ultimately be vindicated. But 0:17:02.360 --> 0:17:05.800 the more extreme the substance is of a position that's 0:17:05.840 --> 0:17:10.439 being taken, the more cautious general courts are in composing 0:17:10.560 --> 0:17:16.560 big procedural consequences until those big arguments and positions go 0:17:16.760 --> 0:17:21.199 through the appellate process of review. So I think that 0:17:21.400 --> 0:17:25.240 the Fifth Circuit and the Texas district courts in general 0:17:25.720 --> 0:17:30.439 generate a lot of extreme positions. What we saw here 0:17:30.760 --> 0:17:36.720 was this intersection of extreme positions and willingness first to 0:17:36.800 --> 0:17:40.240 issue a very sweeping injunction on the basis of the 0:17:40.320 --> 0:17:45.040 extreme position nationwide injunction, and then to sort of double 0:17:45.119 --> 0:17:48.119 down on that after the Supreme Court said it wasn't appropriate. 0:17:48.440 --> 0:17:55.000 The combination of extreme positions and aggressiveness about imposing consequences 0:17:55.480 --> 0:17:59.399 before the appellate process has played out thoroughly is a 0:17:59.440 --> 0:18:03.960 way of really throwing a spanner in the gears of adjudication, 0:18:04.200 --> 0:18:07.119 as the Federal Court understands it, and they're just not 0:18:07.160 --> 0:18:08.000 going to tolerate that. 0:18:08.600 --> 0:18:11.719 So frame for us the message the Supreme Court is 0:18:11.760 --> 0:18:15.200 sending to the Fifth Circuit and Judge O'Connor. 0:18:15.359 --> 0:18:19.320 They're saying, don't play games with us about procedure. If 0:18:19.359 --> 0:18:23.159 you have very good reason to believe that we've taken 0:18:23.320 --> 0:18:27.000 a given position, don't pretend we haven't taken that position 0:18:27.440 --> 0:18:31.040 and act contrary to what we already said. I mean, 0:18:31.080 --> 0:18:35.000 in some ways, what they're saying is you cannot pretend 0:18:35.359 --> 0:18:37.760 that we haven't spoken. I mean, in some sense, it 0:18:37.800 --> 0:18:41.440 sounds so simple. When you have a judicial system that's 0:18:41.480 --> 0:18:45.520 founded on the idea of appellate review, lower courts are 0:18:45.640 --> 0:18:49.920 answerable to higher courts in that system. So in some sense, 0:18:50.000 --> 0:18:53.119 it's very bizarre for the High Court to have to 0:18:53.160 --> 0:18:56.280 issue an order that I think is basically saying you're 0:18:56.640 --> 0:18:59.720 totally acting way outside of your job. 0:19:00.119 --> 0:19:02.560 You are flouting your role. 0:19:02.880 --> 0:19:04.119 That's what I think they were saying. 0:19:04.359 --> 0:19:06.800 And we'll see if the Fifth Circuit and Judge O'Connor 0:19:07.160 --> 0:19:10.680 have gotten that message. Thanks so much. That's Professor Heidi 0:19:10.800 --> 0:19:14.720 Lee Feldman of Georgetown Law. A note. Michael Bloomberg, the 0:19:14.720 --> 0:19:18.000 founder and majority owner of Bloomberg LP, the parent company 0:19:18.000 --> 0:19:21.280 of Bloomberg Radio, is a donor to groups that support 0:19:21.359 --> 0:19:25.399 gun control, including every Town for Gun Safety. Coming up 0:19:25.440 --> 0:19:28.919 next on the Bloomberg Law Show, special counsel Jack Smith 0:19:29.000 --> 0:19:32.280 tells Donald Trump to put up or shut up. I'm 0:19:32.320 --> 0:19:34.240 June Grosso and you're listening to Bloomberg. 0:19:35.680 --> 0:19:38.720 I made it clear I did not agree with the 0:19:38.760 --> 0:19:41.400 idea of saying the election was stolen and putting out 0:19:41.400 --> 0:19:44.680 this stuff, which I told the President was both, and 0:19:46.320 --> 0:19:48.359 you know, I didn't want to be a part of it, 0:19:48.440 --> 0:19:50.359 and that's one of the reasons that went into me 0:19:50.400 --> 0:19:51.800 deciding to leave when I did. 0:19:52.000 --> 0:19:55.359 Former Attorney General William Barr is just one of a 0:19:55.440 --> 0:19:58.600 number of lawyers from the Justice Department, the White House, 0:19:58.880 --> 0:20:02.439 and his own campaign who advised Donald Trump that the 0:20:02.480 --> 0:20:07.040 twenty twenty election was not fraudulent. But the former president 0:20:07.280 --> 0:20:10.800 rejected that advice and looked for outside lawyers who would 0:20:10.800 --> 0:20:13.600 tell him what he wanted to hear, like John Eastman, 0:20:13.760 --> 0:20:17.640 Sidney Powell, and Rudy Giuliani. Trump and his attorney John 0:20:17.720 --> 0:20:21.440 Laurrow have repeatedly said publicly that they're going to use 0:20:21.480 --> 0:20:24.920 the advice of those outside lawyers as a defense at 0:20:24.920 --> 0:20:27.960 his trial on charges of attempting to overthrow the election. 0:20:28.760 --> 0:20:32.560 Mister Trump had the advice of counsel mister Eastman, who 0:20:32.640 --> 0:20:35.840 was one of the most respected constitutional scholars in the 0:20:35.920 --> 0:20:39.400 United States, giving him advice and guidance. 0:20:39.119 --> 0:20:42.480 But the Trump defense team hasn't told the trial judge 0:20:42.520 --> 0:20:45.879 whether they're going to use that blame the lawyer's strategy. 0:20:46.240 --> 0:20:49.919 So now special counsel Jack Smith is telling Trump in 0:20:50.000 --> 0:20:53.320 non legal terms to put up or shut up. Joining 0:20:53.320 --> 0:20:55.840 me is Barbara McQuaid, a professor at the University of 0:20:55.840 --> 0:20:58.800 Michigan Law School and the former US Attorney for the 0:20:58.840 --> 0:21:01.600 Eastern District of Mission Again. She's written a column for 0:21:01.760 --> 0:21:06.639 MSNBC on the consequences of Trump using this defense. Jack Smith, 0:21:06.920 --> 0:21:09.760 as you write in your column, is asking former President 0:21:09.800 --> 0:21:12.120 Donald Trump to put his money where his mouth is, 0:21:12.440 --> 0:21:14.719 or at least of what his documents there tell us. 0:21:14.720 --> 0:21:16.000 What it's about well. 0:21:16.040 --> 0:21:20.000 Donald Trump has very publicly hinted that his defense in 0:21:20.480 --> 0:21:23.280 the case is going to be advice of counsel, that 0:21:23.359 --> 0:21:26.119 he relied on lawyers like John Eastman and others to 0:21:26.200 --> 0:21:29.320 tell him what he could do to challenge the election results, 0:21:29.359 --> 0:21:31.840 and therefore he acted me faith and that makes it 0:21:31.880 --> 0:21:35.399 impossible for the prosecution to prove his guilt. That's fine 0:21:35.400 --> 0:21:37.800 if he wants to rely on that, but first he 0:21:37.840 --> 0:21:40.560 has to show he had a legitimate attorney client privilege 0:21:40.600 --> 0:21:43.320 with the people he's talking with. So far, twenty five 0:21:43.359 --> 0:21:45.920 different people have asserted attorney client privilege in the case, 0:21:46.040 --> 0:21:48.080 So that is not a foregone conclusion that he will 0:21:48.119 --> 0:21:50.359 be able to establish that he had that relationship with 0:21:50.400 --> 0:21:52.679 all twenty five of them, that he relied on their 0:21:52.680 --> 0:21:55.240 advice and good faith. And if he wants to use 0:21:55.280 --> 0:21:58.560 this defense, he must waive the attorney client privilege and 0:21:58.680 --> 0:22:03.240 turn over all the documents memorializing any conversation he had 0:22:03.240 --> 0:22:06.440 then he relied on, as well as anything that might 0:22:06.600 --> 0:22:09.879 tend to negate that defense. And so he gets to 0:22:09.920 --> 0:22:13.119 make a choice. Does he want to preserve his attorney 0:22:13.160 --> 0:22:15.879 client privilege, that's fine, But if he does, and he 0:22:16.000 --> 0:22:19.560 can't use this advice of council defense. And on the contrary, 0:22:19.600 --> 0:22:22.400 if he wants to use the advice of council defense, 0:22:22.680 --> 0:22:25.520 then he can't continue to safeguard the attorney client privilege 0:22:25.600 --> 0:22:28.399 of these documents. And so the court has given a 0:22:28.840 --> 0:22:32.720 discovery cut off date of December, and Special Counsel Jacksmith 0:22:32.760 --> 0:22:34.000 is said, that's the time. 0:22:34.080 --> 0:22:34.600 Which is it. 0:22:34.680 --> 0:22:36.560 Are you going to use this defense or are you 0:22:36.640 --> 0:22:39.960 going to turn over all of the material you previously 0:22:40.000 --> 0:22:41.480 has said is privilege. 0:22:41.720 --> 0:22:46.000 Is the special counsel contending that Trump can't use this defense, 0:22:46.200 --> 0:22:48.600 doesn't meet the qualifications to use it. 0:22:48.920 --> 0:22:51.080 He says, we are not making that argument yet, but 0:22:51.080 --> 0:22:53.080