WEBVTT - Giuliani Says Trump `Immune' From Muller Subpoena

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<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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<v Speaker 1>day we bring you insight and analysis into the most

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<v Speaker 1>important legal news of the day. You can find more

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<v Speaker 1>episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud,

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<v Speaker 1>and on Bloomberg dot com Slash podcasts. More changes in

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<v Speaker 1>President Trump's legal team, and more changes in his story

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<v Speaker 1>about not knowing about one thirty thousand dollar payment made

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<v Speaker 1>to adult film actress Stormy Daniels during the campaign. In

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<v Speaker 1>tweets this morning, Trump confirmed what his new lead attorney,

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<v Speaker 1>Rudy Giuliani said on Fox last night that he repaid

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<v Speaker 1>his lawyer Michael Cohen for the one dollar payment Cohen

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<v Speaker 1>made to Daniels just days before the election. This morning,

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<v Speaker 1>on Fox and Friends, Giuliani also discussed the changes the

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<v Speaker 1>chances of the Special Council interviewing Trump before they rated

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<v Speaker 1>a lawyer's office, which will turn out to be an

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<v Speaker 1>outrageous uh violation the attorney client privilege, before they put

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<v Speaker 1>out the questions and completely soil the atmosphere. The chances

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<v Speaker 1>were pretty good. Now we're gonna have some convintion to do.

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<v Speaker 1>My guest is former federal prosecutor Reno Mariotti, a partner

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<v Speaker 1>at Thompson Coburn, were not This new version of the

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<v Speaker 1>facts is a hundred and eighty degree change from what

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<v Speaker 1>Trump and Cohen had been saying previously. It's obviously a

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<v Speaker 1>legal strategy. But what's your assessment of it? Wow, Well,

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<v Speaker 1>it is a strategy, I'd say, if if I had

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<v Speaker 1>to make sense of the strategy, which is a little

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<v Speaker 1>hard to make sense of. I think originally, what what

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<v Speaker 1>Giuliani was trying to do last night on the Hannity

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<v Speaker 1>Show before the comments this morning, was to try to

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<v Speaker 1>help Michael Cohen. You know, we know that Michael Cohen

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<v Speaker 1>is under investigation for campaign finance violations related to the

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<v Speaker 1>payments to Sturmy Daniels. Uh. And I think, you know,

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<v Speaker 1>although the President had been trying to distance himself from

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<v Speaker 1>Michael Cohen recently, you know, Um, the President did an

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<v Speaker 1>interview recently and Fox and Friends where he said that

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<v Speaker 1>Cohen didn't do much of his legal work and he

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<v Speaker 1>was an independent businessman and so on. Um, it looks like,

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<v Speaker 1>you know, they were It seemed to me like they

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<v Speaker 1>were trying to help Michael Cohen here and try to

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<v Speaker 1>convince him not to flip um. But I think that,

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<v Speaker 1>you know, and then the consequence of that, of course,

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<v Speaker 1>is creating legal liability for the president Unlike Michael Cohen.

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<v Speaker 1>You know, as president of the United States, Uh, Donald

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<v Speaker 1>Trump can't get indicted while in office, or at least

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<v Speaker 1>that's the current position of the Justice Department. Uh. And

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<v Speaker 1>the Republicans and Congress can protect him from impeachment. Uh.

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<v Speaker 1>And so um, you know, that's a way of transferring

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<v Speaker 1>liability from Cohen to Trump. But I think Giuliani's statements

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<v Speaker 1>were so in artful that he may have actually harmed

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<v Speaker 1>both Cohen and the president. One of the things I

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<v Speaker 1>found odd in one of the interviews that Giuliani did

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<v Speaker 1>on Foxes, he said, when I heard Cohen's retainer of

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<v Speaker 1>thirty five thousand when he was doing no work for

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<v Speaker 1>the president, I said, that's how he is repaying with

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<v Speaker 1>a will profit in a little margin for paying taxes.

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<v Speaker 1>Does that sound like Juliani came up with this new

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<v Speaker 1>explanation in a Eureka moment. I've seen this, and that's

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<v Speaker 1>how I'll do it. And he even talked about funneling money,

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<v Speaker 1>which is an odd term to use. It is a

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<v Speaker 1>really term to use. And I have to say, UM,

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<v Speaker 1>it's it's very odd and irregular. Why would somebody who

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<v Speaker 1>purports to be a billionaire need to pay one hundred

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<v Speaker 1>and thirty thousand dollars to their attorney over time and installments, UM,

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<v Speaker 1>through a retainer. Um, it's very unusual. Um, it does

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<v Speaker 1>not really make a lot of sense. Uh. It seems

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<v Speaker 1>to me more of a um after the fact explanation

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<v Speaker 1>for this, rather than what was happening at the time.

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<v Speaker 1>I mean, I think, um, you know, you know, it

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<v Speaker 1>appears from what we know that at the time, you know,

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<v Speaker 1>this was an arrangement that you know, perhaps not a

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<v Speaker 1>lot of thought was given to the legality of this,

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<v Speaker 1>and uh, you know now they're trying to scramble. I mean,

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<v Speaker 1>the good news for Trump that still remains is, as

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<v Speaker 1>I said, he's president of the United States. UM, it

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<v Speaker 1>can be hard to go at him personally legally, But

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<v Speaker 1>Cohen knows a lot about the president. He was his

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<v Speaker 1>attorney for a long period of time. There's a lot

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<v Speaker 1>of issues related to what Cohen could tell prosecutors about Trump,

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<v Speaker 1>because obviously there might be attorney client privilege. But you know,

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<v Speaker 1>what we've seen thus far indicates that Cohen hasn't been

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<v Speaker 1>acting much as an attorney, So, um, you know, it's

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<v Speaker 1>possible that this could really have very significant impact for

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<v Speaker 1>the president. You wrote an editorial in The New York

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<v Speaker 1>Times about those forty nine questions that Mueller could ask

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<v Speaker 1>Trump filtered through Trump's legal team. You said, they leave

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<v Speaker 1>little doubt that Trump is in serious jeopardy, and the

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<v Speaker 1>questions showed that Mueller has already thought about how he

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<v Speaker 1>would prove his case on obstruction. Tell us how sure? So, Um,

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<v Speaker 1>there's no doubt that the President did a number of

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<v Speaker 1>things that you could construe his acts that might be

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<v Speaker 1>influencing the investigation, like firing James Comey. The question is

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<v Speaker 1>all about his intent. You know, if the president fired

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<v Speaker 1>James Comy because he thought he was a bad FBI director,

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<v Speaker 1>that's one thing. He certainly is entitled to do that.

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<v Speaker 1>But if he was firing James Comey because he was

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<v Speaker 1>was upset that Comy was not going to stop the

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<v Speaker 1>investigation of Michael Flynn and he wanted an FBI director

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<v Speaker 1>who would be more amenable to um, you know, uh,

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<v Speaker 1>interfering with the investigation, that would be a crime. And

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<v Speaker 1>so the question all comes down to what was the

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<v Speaker 1>president's intent at the time, and to prove that. Really,

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<v Speaker 1>what Mueller is doing is looking at the president's words

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<v Speaker 1>and actions over a long period of time, not just

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<v Speaker 1>what he said in the Lester whole interview, which a

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<v Speaker 1>lot of people focus on, but you know the fact that,

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<v Speaker 1>for example, he got very angry and erupted at the

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<v Speaker 1>Attorney General Jeff Sessions, when Jeff Sessions told him that

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<v Speaker 1>he recused himself. Reportedly, the president said, um that he wanted, uh,

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<v Speaker 1>the attorney general to protect him and to shield him. Um.

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<v Speaker 1>You know. Similarly, the president has talked about firing the

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<v Speaker 1>special counsel, Robert Mueller. So there's a whole series of

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<v Speaker 1>events in which the president is shown is an intense

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<v Speaker 1>interest in the Russia investigation and a desire to try to,

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<v Speaker 1>you know, shut it down or cut it off or

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<v Speaker 1>stop it. And so uh, Mueller was asking very pointed questions, uh,

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<v Speaker 1>you know in that list that we saw about what

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<v Speaker 1>the President really intended and meant when he said and

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<v Speaker 1>did all these various things. And really what that tells

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<v Speaker 1>you is that the president is the one who's under

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<v Speaker 1>investigation here. It is the president's intent that's an issue,

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<v Speaker 1>and Giuliani was developing Excuse me, Giuliani, Mueller is developing

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<v Speaker 1>that evidence, uh, in order to um, uh you know,

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<v Speaker 1>potentially prove that the President obstructed Justice Renaldo. The Trumps

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<v Speaker 1>team seems to be putting out many reasons now why

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<v Speaker 1>the interview won't take place in about a minute. Should

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<v Speaker 1>Muller just issue the subpoena already before Trump has a

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<v Speaker 1>chance to fire Rod Rosenstein something else? Well? Um, I think, um,

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<v Speaker 1>you know, that's more of a political question. You know,

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<v Speaker 1>if he let's say he issued the subpoena, now, I

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<v Speaker 1>mean Trump could still fire Rod Rosenstein. Uh. Realistically, Um,

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<v Speaker 1>you know, if if if Trump appointed a new deputy

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<v Speaker 1>Attorney general, or for example Mr Francisco stepped into the

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<v Speaker 1>shoes who's the solicitor general, and next in line stepped

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<v Speaker 1>into the shoes of Rod Rosenstein, he certainly could try

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<v Speaker 1>to prevent Muller from issuing a subpoena. But I think

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<v Speaker 1>that that would, you know, create additional problems for the

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<v Speaker 1>Trump team. I suspect that at some point that would

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<v Speaker 1>become public and you know, would generate a lot of outrage. Um.

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<v Speaker 1>I really think for for Trump and his team, at

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<v Speaker 1>this point there there's there's savvast move and that's not

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<v Speaker 1>that does not I do not mean to suggest that

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<v Speaker 1>they will do this, but the Savvys move would be,

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<v Speaker 1>I think, to keep Muller in place and then do

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<v Speaker 1>continue doing whatever they can to discredit him and to

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<v Speaker 1>attack him. Because if they do get Muller out of there,

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<v Speaker 1>rob Mula and rosen Stan out of there, they replace

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<v Speaker 1>them with new people, and then they have to you

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<v Speaker 1>have to cut you off there, thanks so much. That's

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<v Speaker 1>when we're federal prosecutor. We're not on Mariotti. Justice Anthony

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<v Speaker 1>Kennedy has been the swing vote on the Supreme Court

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<v Speaker 1>for more than ten years. For the second year, the

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<v Speaker 1>one year old justice is the focus of retirement speculation,

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<v Speaker 1>something that sends anxiety into the hearts of many liberals

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<v Speaker 1>joining me to either put the speculation to rest or

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<v Speaker 1>not is Bloomberg New Supreme Court reporter Greg's Store. Greg

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<v Speaker 1>explain just how important Justice Kennedy is to the decisions

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<v Speaker 1>in controversial issues that come before the Court June It

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<v Speaker 1>it's hard to overstate how important he is. Um he

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<v Speaker 1>is usually the swing vote when you have a five

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<v Speaker 1>to four Supreme Court decision. He's with the conservatives on

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<v Speaker 1>things like campaign finance and the decision from a few

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<v Speaker 1>years ago that that cut out up core part of

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<v Speaker 1>the Voting Rights Act. He's with the liberals on gay

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<v Speaker 1>rights and generally on abortion access. One Professor Michael Clarman

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<v Speaker 1>of Harvard Law School said he is the most important

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<v Speaker 1>Supreme Court justice in history, and it's not close. You

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<v Speaker 1>write that Kennedy's retirement quote would drop a political bomb

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<v Speaker 1>into what's already one of the country's most divisive eras

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<v Speaker 1>since the Civil War. What's likely to happen? Tell us

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<v Speaker 1>how it would unfold? Well if he were to retire

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<v Speaker 1>this term. Uh. And with Republicans having fifty one seats

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<v Speaker 1>in the Senate out of the one, they don't need

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<v Speaker 1>democratic control. Uh So, as long as they can hold together,

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<v Speaker 1>and that includes a couple of Republican senators Susan Collins

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<v Speaker 1>and Lisa Murkowski, who tend to be on the side

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<v Speaker 1>of abortion rights. But as long as Republicans can can

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<v Speaker 1>hold together, they can get a nominee. Confirmed that said, um,

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<v Speaker 1>the magnitude of the shift on the court would mean

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<v Speaker 1>that um uh no holds will be barred. Uh. Liberals

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<v Speaker 1>Democrats will fight as hard as they possibly can to

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<v Speaker 1>derail a Trump nomination until the mid term when there's

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<v Speaker 1>at least a chance that Democrats could take control of

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<v Speaker 1>the Senate. Now, if let's suppose that Trump does nominate

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<v Speaker 1>someone and that a Conservatives put on the court, would

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<v Speaker 1>it be a lasting change on the court. Yeah, it

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<v Speaker 1>would would in all likelihood be huge. Um. The the

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<v Speaker 1>conservative members of the Court would all generally be uh,

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<v Speaker 1>relatively young. The oldest would be would be Justice Clarence

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<v Speaker 1>Thomas um. And unless one of them were to leave

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<v Speaker 1>during a democratic administration, and and it's hard to imagine

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<v Speaker 1>any of them would do that voluntarily. Uh, it's it's

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<v Speaker 1>a majority, a solid conservative majority. Uh, that that would

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<v Speaker 1>last for decades. Kennedy has seen how Justice Neil Gorstch,

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<v Speaker 1>who replaced the late Justice antonin Scalia, is a pretty

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<v Speaker 1>reliable conservative vote. So is staying on the court the

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<v Speaker 1>only way that Kennedy could really protect some of his

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<v Speaker 1>accomplishments like gay marriage. Yeah, well, well that's certainly what

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<v Speaker 1>what folks on the progressive side are are saying, you know,

0:11:10.400 --> 0:11:14.720
<v Speaker 1>try and encourage him to stay. Um, you know, there's

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<v Speaker 1>there's at least a theory that that the gay rights

0:11:18.000 --> 0:11:22.520
<v Speaker 1>precedents on the Supreme Court are not going anywhere, that

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<v Speaker 1>it is regardless of who who would succeed Kennedy, that

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<v Speaker 1>were unlikely to see the Court try to revisit the

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<v Speaker 1>Albergia Fell Gay marriage ruling, for example, whereas a decision

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<v Speaker 1>like Roevie Wade could be overturned. Um. And on the

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<v Speaker 1>other side, some of the decisions like Citizens United, where

0:11:41.520 --> 0:11:45.080
<v Speaker 1>Kennedy sides with the liberals excusing with the conservatives. Uh,

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<v Speaker 1>those could be more vulnerable if a more liberal justice

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<v Speaker 1>replaced Kennedy. So his legacy may be more secure in

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<v Speaker 1>a sense, Uh, with his more liberal decisions, regardless of

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<v Speaker 1>who who succeeds him. So Greg Supreme Court justices, well,

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<v Speaker 1>we should know by the end of the term. Will

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<v Speaker 1>we be hearing from Justice Kennedy. Yeah, We're definitely in

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<v Speaker 1>the season now when justices do announce their retirement. So

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<v Speaker 1>the last two who have sept the step down who retired, Uh,

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<v Speaker 1>John Paul Stevens and David Suitor both did it around

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<v Speaker 1>this time. Some of the justices, if you go a

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<v Speaker 1>little further back, Sandra Day O'Connor um third good Marshal

0:12:25.040 --> 0:12:28.079
<v Speaker 1>Louis Powell retired at the very end of the term

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<v Speaker 1>after the last decisions. So we're certainly going to be

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<v Speaker 1>watching up until that last week of June when we

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<v Speaker 1>expect the Court to finish its term. And so add

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<v Speaker 1>to the speculation here, what is Justice Kennedy likely to do? Boy? Uh,

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<v Speaker 1>you know, there are no outward signs that he is

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<v Speaker 1>going to retire. He he in the sense that he's

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<v Speaker 1>hired his clerks for next term. He is going to

0:12:52.760 --> 0:12:55.959
<v Speaker 1>teach in Austria like he does every summer. Um. But

0:12:56.080 --> 0:12:58.280
<v Speaker 1>it would not be a surprise to anybody if indeed

0:12:58.360 --> 0:13:01.680
<v Speaker 1>he does say that this is the end. He shows

0:13:02.000 --> 0:13:05.040
<v Speaker 1>no signs of slowing down. When you when I listened

0:13:05.040 --> 0:13:07.160
<v Speaker 1>to the oral arguments, you see him there. Do you

0:13:07.240 --> 0:13:10.679
<v Speaker 1>see anything that indicates that he's ready to slow down? No,

0:13:10.840 --> 0:13:14.439
<v Speaker 1>certainly nothing I can point you to in any concrete sense. Um.

0:13:14.960 --> 0:13:17.720
<v Speaker 1>You know, the thinking is really that he was appointed

0:13:17.760 --> 0:13:20.240
<v Speaker 1>by a Republican Uh. Some of his former law clerks

0:13:20.679 --> 0:13:22.920
<v Speaker 1>tell me, uh, you know, he still thinks of himself,

0:13:23.160 --> 0:13:26.400
<v Speaker 1>as you know, coming from that from those roots, and

0:13:26.440 --> 0:13:30.679
<v Speaker 1>would like a Republican president to nominate his successor. If

0:13:30.840 --> 0:13:33.680
<v Speaker 1>if um, and if he waits for another year. There's

0:13:33.720 --> 0:13:38.400
<v Speaker 1>a possibility that Democrats take control of the Senate, and um,

0:13:39.000 --> 0:13:42.120
<v Speaker 1>you know, maybe no nominee from Donald Trump could get

0:13:42.160 --> 0:13:45.360
<v Speaker 1>onto the Court until the next presidential election. You right.

0:13:45.480 --> 0:13:48.079
<v Speaker 1>And I was surprised by this that though I shouldn't be,

0:13:48.200 --> 0:13:52.960
<v Speaker 1>conservative groups are already making plans to back any Trump nominee.

0:13:53.000 --> 0:13:56.160
<v Speaker 1>So in about a minute, tell us about that. Yeah. So, um,

0:13:56.679 --> 0:13:59.920
<v Speaker 1>there's a group called the Judicial Crisis Network that uh,

0:14:00.080 --> 0:14:03.560
<v Speaker 1>um is uh conservatives who have gone to bat went

0:14:03.640 --> 0:14:05.600
<v Speaker 1>to bat for Neil Gorsich. It's sort of the genesis

0:14:05.720 --> 0:14:08.719
<v Speaker 1>of it. Um was back uh in the George W.

0:14:08.880 --> 0:14:12.880
<v Speaker 1>Bush administration supporting John Roberts and Sam Alito on the court. Uh,

0:14:13.120 --> 0:14:17.160
<v Speaker 1>conservatives have they're willing to. They run television advertisements, and

0:14:17.240 --> 0:14:19.960
<v Speaker 1>many of those advertisements are likely to show up in

0:14:20.280 --> 0:14:24.400
<v Speaker 1>states where, say, uh, Trump leaning states where a Democratic

0:14:24.480 --> 0:14:26.400
<v Speaker 1>senator is up for re election, and they could be

0:14:26.560 --> 0:14:30.520
<v Speaker 1>very powerful forces. Well, it's it's a really interesting story.

0:14:30.800 --> 0:14:33.680
<v Speaker 1>And Greg, we will wait to hear from us to

0:14:33.800 --> 0:14:37.320
<v Speaker 1>what Justice Kennedy is doing. Thanks so much. That's Bloomberg

0:14:37.360 --> 0:14:40.400
<v Speaker 1>News Supreme Court reporter Greg Store, Thanks for listening to

0:14:40.400 --> 0:14:43.680
<v Speaker 1>the Bloomberg Law Podcast. You can subscribe and listen to

0:14:43.800 --> 0:14:47.440
<v Speaker 1>the show on Apple Podcasts, SoundCloud, and on bloomberg dot

0:14:47.520 --> 0:14:52.000
<v Speaker 1>com slash podcast. I'm June Brolso this is Bloomberg