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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

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Speaker 1: and on Bloomberg dot com slash podcasts. It's a very

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Speaker 1: unusual move for a defendant, and just the latest in

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Speaker 1: a string of attacks challenging the authority of Special Counsel

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Speaker 1: Robert Mueller's Russia investigation. Paul Manafort, the former Trump campaign chairman,

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Speaker 1: was indicted by the Special Council in October on criminal

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Speaker 1: charges of fraud, conspiracy, and money laundering related to his

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Speaker 1: lobbying on behalf of a Russian friendly political party in Ukraine. Now,

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Speaker 1: Manafort has filed a civil lawsuit claiming that Mueller overstepped

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Speaker 1: his authority and charging him with crimes related to business

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Speaker 1: conducted long before he became Trump's campaign chairman involving events

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Speaker 1: unrelated to Russian election meddling. My guest is Jeffrey Kramer,

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Speaker 1: managing director at Berkeley Research Group and a former federal prosecutor. Jeff,

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Speaker 1: we might expect a motion to dismiss the charges, but

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Speaker 1: have you ever seen a civil suit like this in

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Speaker 1: response to criminal charges. Uh. No, this is uh throwing unique.

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Speaker 1: I mean in a normal context where you have justice

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Speaker 1: or a former federal prosecutor uh writing a defendant, and

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Speaker 1: I've never seen a suit arguing that the prosecutor didn't

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Speaker 1: have jurisdiction. Now, this is unique because it's a special counsel,

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Speaker 1: but I don't think it's I don't think it's a

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Speaker 1: winning argument in any events. Explain maniforts claims briefly, you know,

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Speaker 1: just briefly, and I'll give you his argument, and I'll

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Speaker 1: tell you where I think it goes awry. He's basically

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Speaker 1: saying that in there's a couple of counts in one

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Speaker 1: county saying the w Attorney General did not have an

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Speaker 1: authority to appoint Muller to pursue uh these uh financial doings.

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Speaker 1: And this is uh that Mueller himself uh needed short

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Speaker 1: and didn't have the jurisdiction to pursue anything beyond the

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Speaker 1: election and Russian interference. That's the argument. Um, where I

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Speaker 1: think it goes awry, as that it confuses U. I'm

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Speaker 1: sure purposely so. The special council law with a special

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Speaker 1: prosecutor legislation and that's where the difference is. What are

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Speaker 1: the chances of a judge setting aside the Special Counsel's

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Speaker 1: appointment as one of the things that Manafort asked for,

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Speaker 1: or the charges against Manifort, or doing anything else with

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Speaker 1: a case that's going on in another court. I think

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Speaker 1: it's a slim to none is probably generous. Um. There

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Speaker 1: will certainly be a response, but I can't see a

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Speaker 1: judge entertaining are certainly granting this motion. The Special Council

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Speaker 1: law is clear, it gives pretty wide birth as long

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Speaker 1: as the Deputy Attorney General reviews what's going on, and

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Speaker 1: there's touch points, and if we look at what the

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Speaker 1: Deputy Attorney General said in his recent testimony has been

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Speaker 1: on top of Robert Mueller. There's a constant community and

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Speaker 1: he's abiding what needs to happen under the Special Council.

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Speaker 1: There's a lot of latitude there. The argument is akin

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Speaker 1: to it a defendant saying not that I didn't do it,

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Speaker 1: but basically this should have been kept concealed. You shouldn't

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Speaker 1: have looked here. It's an absurd argument. Well, we should

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Speaker 1: mention that Mantaford is not only only suing Mueller, but

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Speaker 1: he is also suing Rod rosen Stein, who is the

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Speaker 1: acting Attorney General who's in charge of the Russian investigation

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Speaker 1: and the U. S Department of Justice. I'm looking at

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Speaker 1: the order appointing the Special Council that Rosenstein signed, and

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Speaker 1: it says that included in the authority to conduct the

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Speaker 1: investigations any matters that arose or may arise directly from

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Speaker 1: the investigation. So does that clearly cover events even if

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Speaker 1: they're unrelated to the Russian election meddling. I think exactly right,

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Speaker 1: And that's the what I was alluding to before. It's

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Speaker 1: a pretty broad discretion for Muller. And if he was

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Speaker 1: looking for monies overseas may have been Russian and Ukrainian

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Speaker 1: moneys that could have impacted influence on the Trump administration.

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Speaker 1: And he started uncovering what Paul Manafort was doing overseas,

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Speaker 1: he doesn't have to then turn away um and uh

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Speaker 1: and go elsewhere. He can follow the evidence where it leads.

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Speaker 1: And I think that's exactly what we want from any prosecutor.

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Speaker 1: So as long as he did anything illegal or improper,

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Speaker 1: the defendant got caught, and he's saying you shouldn't have

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Speaker 1: caught me. That's that's argument, this seems more like a

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Speaker 1: political move than a legal move. But is it likely

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Speaker 1: to cause any problems or distractions from Muller and his team? No,

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Speaker 1: you've seen anything, And obviously we we don't even know

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Speaker 1: a small percentage of what's going on behind closed doors.

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Speaker 1: But we can tell h that Bob Muller and his

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Speaker 1: team have been pretty straightforward as in pursuing this. There's

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Speaker 1: been no leaks, there's been no press conferences or news

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Speaker 1: releases or anything that like Billy conversation we've heard from

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Speaker 1: Bob Mueller has been in the form of criminal cases.

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Speaker 1: So I think they're putting their heads down. This is

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Speaker 1: a distraction, although they'll have to respond, as I said,

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Speaker 1: in in federal court because it is is a valid

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Speaker 1: complaint um. But then they'll just keep doing what they're

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Speaker 1: doing and this will be brushed aside um. And then

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Speaker 1: Paul Manaford is going to have to face the fact

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Speaker 1: that he's looking at a decade or more in jail,

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Speaker 1: and then the question is does he want to cooperate

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Speaker 1: or not. But this attempt to dismiss the charges um,

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Speaker 1: I don't think it's gonna it's gonna go very were

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Speaker 1: just about a minute here, Jeff, there's it's also seems

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Speaker 1: to be a phishing expedition in some respects where they're

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Speaker 1: asking for certain documents. Is there any possibility that a

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Speaker 1: judge might require mulitor turn anything over like that? You know,

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Speaker 1: I don't think we're gonna get to that part of discovery. Um.

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Speaker 1: I think this gets dismissed right after a complaint, after

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Speaker 1: a response gets filed. I'd be surprised if it got

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Speaker 1: to the point where it is discovery. Um, you're right,

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Speaker 1: that would certainly benefit the defendants. The problem isn't somewhat ironic. Um,

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Speaker 1: It's not that Paul Manafort is gonna sum off to

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Speaker 1: being deposed in this civil lawsuit. He's got fish and

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Speaker 1: bigger problems. So usually when a civil suit goes on

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Speaker 1: contemporaneous with a criminal case, the civil suits just stayed

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Speaker 1: because there are certain protections we have in the criminal

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Speaker 1: realm that we don't have in civil. Here, it's the

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Speaker 1: flip of it. You have the defendant actually filing a

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Speaker 1: civil case. So Paul Manaford maybe looking for documents from Mueller,

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Speaker 1: but the last thing he wants to do is subject

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Speaker 1: himself to Mueller's questioning a Deposition. Thanks for insights as always.

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Speaker 1: That's Jeffrey Kramer, Managing director, Berkeley Research Group. California began

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Speaker 1: selling recreational marijuana on Monday, the seventh state to approve

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Speaker 1: the sale of recreational marijuana. However, marijuana is still illegal

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Speaker 1: under federal law, but the Obama administration announced it would

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Speaker 1: not stand in the way of states that legalized Mary Juanna.

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Speaker 1: Attorney General Jeff Sessions is about to rescind that policy.

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Speaker 1: According to the Associated Press, Sessions has long considered marijuana

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Speaker 1: as comparable to heroin and has blamed it for spikes

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Speaker 1: in violence. Joining me is Alex Crete, professor at Thompson

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Speaker 1: Thomas Jefferson School of Law. Alex Session will let federal

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Speaker 1: prosecutors where pot is legal decide how aggressively to enforce

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Speaker 1: federal marijuana law. According to a p how does that

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Speaker 1: fit in with the idea of federal law being enforced

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Speaker 1: uniformly across the country. Yeah, it is I think hard

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Speaker 1: to make sense of this announcement um from that perspective.

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Speaker 1: If the idea is that marijuana is illegal federally, and

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Speaker 1: that Sessions believe that that federal law needs to be enforced,

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Speaker 1: it would make I think a lot more sense for

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Speaker 1: UH Sessions to say we're going to just enforce this uniformly. UM.

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Speaker 1: And also from a policy perspective, I think the prospect

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Speaker 1: of having uneven enforced and depending district by district across

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Speaker 1: the United States where marijuana is legal, I think could

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Speaker 1: be very, very disruptive. I mean, you could have a

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Speaker 1: situation where in one part of the state, the federal

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Speaker 1: prosecutor is cracking down and sending people operating businesses to prison,

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Speaker 1: and in the other part of the state, the federal

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Speaker 1: prosecutor is allowing the businesses to move forward just as

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Speaker 1: they have been for the past few years. Right, because

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Speaker 1: we should point out that many states like New York

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Speaker 1: have a couple of federal prosecutors or more. A recent

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Speaker 1: gallipole shows of Americans believe marijuana should be legal. It's

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Speaker 1: become a multibillion dollar industry. A bipartisan group of centators

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Speaker 1: in March urged Sessions to uphold existing marijuana policy. Is

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Speaker 1: there likely to be a backlash and even an effort

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Speaker 1: in Congress if U S attorneys actually begin in forcing

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Speaker 1: federal law. Yeah, I think it is quite possible. UM.

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Speaker 1: And it's telling that a core Gardener, Republican senator from

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Speaker 1: Colorado has already tweet doubt today a very strong response

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Speaker 1: to this, saying that this is in conflict with what

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Speaker 1: Senator Sessions had told him, and that you know, he's

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Speaker 1: very upset about this announcement, and so it's possible that

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Speaker 1: this announcement from Sessions will sort of backfire on him

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Speaker 1: and might spur Congress to finally take action to change

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Speaker 1: federal law to accommodate state marijuana laws. It also appears

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Speaker 1: to break a promise made on the campaign trail by

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Speaker 1: President Trump to respect state decisions on marijuana law. And

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Speaker 1: for people who support states rights, isn't it also a problem? Yeah?

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Speaker 1: I mean I think that this is, you know, in

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Speaker 1: conflict with uh, you know, sort of Republican or traditional

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Speaker 1: sort of Republican position on allowing states to have leeway

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Speaker 1: to make these kinds of policy decisions. That's certainly with

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Speaker 1: the odds with what Trump said on the campaign trailer,

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Speaker 1: as you noted, and it's with odds with what polling shows.

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Speaker 1: Polling shows that stantial majority of Americans, even if they

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Speaker 1: don't support marijuana legalization, a lot of people who oppose

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Speaker 1: legalizations still believe it should be up to states to

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Speaker 1: make that decision. Last poll I saw, I think it

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Speaker 1: was somewhere around seventy five percent or so, uh, somewhere

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Speaker 1: in that range said that they thought this should be

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Speaker 1: left to the states, even if they personally didn't support legalization.

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Speaker 1: So this is I think a very unpopular political move

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Speaker 1: to say that the federal government should interfere with what

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Speaker 1: states are doing here. So, Alex, looking at it from

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Speaker 1: the other side, is there any reason why this is

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Speaker 1: a good move? Well, I mean, I think that the

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Speaker 1: you know, argument that one would make in favor of

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Speaker 1: this move, and I personally, you know, I don't think

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Speaker 1: it's a good move, But I'd say the argument that

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Speaker 1: you would, you know, make, uh in favor of this

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Speaker 1: is to say, look, federal law says marijuana is illegal

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Speaker 1: until that changes the that law should be enforced, and Congress,

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Speaker 1: if they want to change law, they should act and

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Speaker 1: do it. And you know, certainly, I think there's something

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Speaker 1: to be said for the idea that Congress has been um,

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Speaker 1: I think turning a little bit of a blind eye

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Speaker 1: to this conflict. The reality is that it's been easy

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Speaker 1: for them to do the past few years because the

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Speaker 1: federal prosecutors have been using their discretion to allow this

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Speaker 1: to go forward, but still federal law says this is illegal,

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Speaker 1: and really it Congress should change that. I mean, Congress

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Speaker 1: needs to face up to this conflict. It's untenable to

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Speaker 1: have so many states with legalization laws and yet federal

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Speaker 1: law says this is all a crime. Alex, the d

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Speaker 1: e A has marijuana listed as a Schedule one drug

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Speaker 1: alongside heroin. If the d e A changes that, will

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Speaker 1: that make a difference. It changes where marijuana is on

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Speaker 1: the schedule of drugs. No, No, not really, So that

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Speaker 1: is certainly an issue that's come up, the rescheduling of marijuana,

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Speaker 1: maybe moving marijuana to a less restrictive schedule. But even

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Speaker 1: if marijuana was rescheduled to say Schedule to or even

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Speaker 1: Schedule three. Uh, the fact is that substances and Rules

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Speaker 1: two and three they can only be distributed for medical purposes.

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Speaker 1: And so even if you were to reschedule marijuana, that

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Speaker 1: would do nothing to solve the conflict between federal prohibition

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Speaker 1: and state legalization laws for recreational use. Let's so, let's

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Speaker 1: say next week, do you expect to see anything happening

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Speaker 1: in states that have legalized marijuana or do you think

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Speaker 1: that U. S. Attorneys are going to wait or perhaps

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Speaker 1: never do anything at all. Yeah, I mean that I

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Speaker 1: think is the big question mark now that's been left

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Speaker 1: by this announcement from Sessions is that this is going

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Speaker 1: to be up to individual U S attorneys to make

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Speaker 1: these decisions. Now, um, what are they going to do?

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Speaker 1: And I don't think at this point in time we

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Speaker 1: have any clear answer about when we'll know that. Uh.

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Speaker 1: And the reality is that in some of these UH districts,

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Speaker 1: Trump hasn't even nominated anyone to fill the U. S

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Speaker 1: attorney position, um. And in others somebody has been nominated

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Speaker 1: but not confirmed. And then other districts there have been

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Speaker 1: Trump nominees confirmed. So that's sort of another question mark

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Speaker 1: as well. UH. In California, at least last I checked,

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Speaker 1: I believe is only one of the four districts had

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Speaker 1: a nominee from Trump, and I don't believe that person

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Speaker 1: has been confirmed yet, in the Eastern district of California,

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Speaker 1: just as an example. So that's another sort of uncertainty

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Speaker 1: that's out there, which is that in some parts of

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Speaker 1: the country where marijuana is legal, you might not even

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Speaker 1: have someone to check in as far as the U

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Speaker 1: S Attorney right now. Thank you, Alex. That's Professor Alex

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Speaker 1: Kright of the Thomas Jefferson School of Law. Thanks for

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Speaker 1: listening to the Bloomberg Law Podcast. You can subscribe and

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Speaker 1: listen to the show on Apple Podcasts, SoundCloud, and on

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Speaker 1: Bloomberg dot com slash podcast. I'm June Bralso this is

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Speaker 1: Bloomberg