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

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Speaker 2: The classified document's case against former President Donald Trump came

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Speaker 2: to a stunning and abrupt conclusion this week as federal

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Speaker 2: Judge Eileen Cannon dismissed the case outright. Cannon's dismissal had

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Speaker 2: nothing to do with the evidence, but was based on

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Speaker 2: a procedural point, with the Trump appointee finding against the

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Speaker 2: weight of prior decisions that the appointment of special counsel

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Speaker 2: Jack Smith was unconstitutional. The case charging Trump with illegally

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Speaker 2: hoarding classified documents was widely considered to be the strongest

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Speaker 2: and most straightforward case against him, involving conduct after Trump

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Speaker 2: left the White House and with the breadth of evidence,

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Speaker 2: including surveillance footage from his own security cameras at mar

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Speaker 2: A Lago and the testimony of close aids and former lawyers.

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Speaker 2: Plus remember Trump's bizarre explanation for the declassification of the documents.

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Speaker 3: If you're the president of the United States, you can

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Speaker 3: declassify just by saying it's de classified, even by thinking

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Speaker 3: about it, because you're sending it tomorrow, Lago or to

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Speaker 3: wherever you're sending it, and there doesn't have to be

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Speaker 3: a process. There can be a process, but there doesn't

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Speaker 3: have to be. You're the president. You make that decision,

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Speaker 3: so when you send it, it's the classifate. I declassified everything.

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Speaker 2: The Special Council has already filed a notice of appeal

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Speaker 2: of Canon's decision with the Eleventh Circuit joining me is

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Speaker 2: former Federal Prosecutor Robert Mintz, a partner maccarter and English Bob.

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Speaker 2: Even though Judge Cannon has issued a lot of mystifying

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Speaker 2: and unorthodox decisions, this decision dismissing the entire classified documents

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Speaker 2: case still caught most legal experts by surprise.

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Speaker 4: This is really a stunning decision by the federal judge

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Speaker 4: of Florida to throw out entirely the classified documents case

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Speaker 4: against former President Trump. It's something that I would suspect

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Speaker 4: that not even the Trump legal team was expecting based

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Speaker 4: upon the hearing that they had on this issue.

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Speaker 5: Before the judge.

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Speaker 4: But what the judge did here is basically find that

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Speaker 4: the appointment of the Special Council Jack Smith violated the Constitution.

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Speaker 4: It does not address the merits of the case, it

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Speaker 4: doesn't address the evidence, It doesn't address a defense that

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Speaker 4: was raised by the Trump legal team. It's all about

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Speaker 4: the appointment of the Special Council, and the judge found,

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Speaker 4: because that was done improperly, the only remedy is to

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Speaker 4: dismiss the case.

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Speaker 2: Why did she say it was done improperly? How did

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Speaker 2: she find that?

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Speaker 3: Well?

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Speaker 4: The judge wrote a ninety three page, very detailed opinion

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Speaker 4: which focused entirely on the Constitution's appointments clause and said

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Speaker 4: that the appointment of the Special Council was done inappropriately

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Speaker 4: because it was a violation of that quause. In other words,

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Speaker 4: the judge found that the appointment had to be approved

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Speaker 4: by the Senate, had to be confirmed by the Senate,

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Speaker 4: given the level of independence that Jack Smith was given

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Speaker 4: by Attorney General Merrick Garland. The judge also found that

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Speaker 4: the appointment violated another clause in the Constitution, having to

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Speaker 4: do with the expenditure of money. That was not ultimately

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Speaker 4: the basis for the dismissal of the indictment, but she

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Speaker 4: found that the appropriations clause also was violated here because

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Speaker 4: money was being spent improperly. Again, because it was done

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Speaker 4: without congressional oversight.

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Speaker 2: Canon wrote that the issue of a special Council was

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Speaker 2: a novel one but it's not a novel one. This

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Speaker 2: has been decided by other courts before.

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Speaker 4: That's exactly right. This issue of an appointment of a

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Speaker 4: special council is something that has been done by different

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Speaker 4: administrations over the years, dating back many years. Both Republicans

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Speaker 4: and Democrats have used the special Council as a way

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Speaker 4: to investigate politically sensitive case and it has been challenged

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Speaker 4: before and every time in every court this type of

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Speaker 4: appointment has been upheld, not only by district courts, but

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Speaker 4: also by the Court of Appeal.

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Speaker 2: It seems like she took a recent concurrence by Justice

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Speaker 2: Clarence Thomas to heart. In the presidential immunity case, Thomas

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Speaker 2: raised concerns about the constitutionality of the appointment of the

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Speaker 2: special Council, which wasn't part of the immunity case, and

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Speaker 2: Canon cited that opinion, which no other justice had joined

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Speaker 2: in three times in her opinion.

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Speaker 4: Yeah, that was unusual because he did have a situation

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Speaker 4: in connected with the presidential immunities case where Justice Thomas

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Speaker 4: made a comment about the appointment of a special council.

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Speaker 4: It really was outside the scope of the opinions. And

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Speaker 4: as you say, none of the other justices commented on it.

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Speaker 6: But it does.

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Speaker 4: Seem to perhaps have affected the judge's decision here because

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Speaker 4: if you look at the way she reacted to the

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Speaker 4: arguments during the hearing, he seemed to suggest that she

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Speaker 4: would go along with the other courts in the way

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Speaker 4: that special counsels had been appointed over the years, because

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Speaker 4: there was a long standing president over many years and

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Speaker 4: many different administrations to appoint special counsels in this way.

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Speaker 4: And yet we now have this decision which really has

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Speaker 4: done the legal community because it has thrown out of

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Speaker 4: precedent that has been in existence for at least twenty

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Speaker 4: or twenty five years with regard to the appointment of

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Speaker 4: special counsel.

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Speaker 2: Explain how Judge Cannon has not only slow walked this case,

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Speaker 2: but her decisions have subjected her to a lot of

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Speaker 2: criticism for being outside the norm.

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Speaker 4: Well, people who have been watching this case from the

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Speaker 4: beginning have been a little bit mystified by the way

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Speaker 4: Judge Cannon has handled this case, in that she has

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Speaker 4: given a lot of time and devoted a lot of

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Speaker 4: energy to arguments that most judges, based upon past president,

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Speaker 4: would have dismissed summarily. In other words, it's not surprising

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Speaker 4: at all for a defense team to make all kinds

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Speaker 4: of arguments, including some that are very far effect That's

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Speaker 4: something defense lawyers will try to do because you never

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Speaker 4: know what might actually pique a judge's interest. But most

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Speaker 4: of the time judges very quickly dismiss arguments that are

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Speaker 4: out of the mainstream to try to keep the case moving,

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Speaker 4: to try to keep the case focused. In this case,

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Speaker 4: it seemed that Judge Canon was giving an exceeding amount

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Speaker 4: of deference to arguments that most judges would have dismissed

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Speaker 4: out of hand, and this has slowed down the trial considerably.

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Speaker 4: And now we have sort of the culmination of all

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Speaker 4: of that, an argument that seemed like a farfexed argument,

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Speaker 4: an argument that was really kind of a hail Mary

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Speaker 4: argument in the eyes of most people, given the lengthy

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Speaker 4: legal precedent supporting the appointment of the Special Council, And

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Speaker 4: yet she has now found out as a basis to

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Speaker 4: dismiss the case altogether.

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Speaker 2: I just want to point out that Canon's decision has

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Speaker 2: no effect on the DC case, which is in a

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Speaker 2: different circuit. Now, the Special Council certainly has strong legal

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Speaker 2: arguments for his appeal. It's not clear if he's going

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Speaker 2: to ask to have Canon remove from the case, there

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Speaker 2: is precedent for that in the Eleventh Circuit.

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Speaker 4: Well, that's the question now as to whether or not

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Speaker 4: this is an appropriate time to do that. She already

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Speaker 4: does have a bit of a shaky history with the

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Speaker 4: Eleventh Circuit. If you remember, during the beginning of this case,

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Speaker 4: when the search warrant was executed, she asked that an

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Speaker 4: independent monitor come in to review the documents that were

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Speaker 4: seized by the government, something that was highly unusual and

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Speaker 4: really there was no basis in law to do it.

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Speaker 4: She more or less found that because the subject of

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Speaker 4: the search was a former president, that there was a

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Speaker 4: certain level of due process that had to be accorded

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Speaker 4: that was different than anybody else. That was immediately overturned

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Speaker 4: by the Eleventh Circuit, and she was really rebuked by

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Speaker 4: the courts for going way outside of the mainstream and

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Speaker 4: trying to create a basically two tier system where somebody,

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Speaker 4: because there were a former president, at a certain level

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Speaker 4: of deference on a certain level of due process that

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Speaker 4: every other state in this country would not get. This

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Speaker 4: is now going back up to that same Eleventh Circuit

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Speaker 4: Court of Appeals and will be interesting to see what

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Speaker 4: they do with his decision and whether or not they

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Speaker 4: overturn her ruling.

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Speaker 2: It has long seem like this case wouldn't be tried

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Speaker 2: before the election. This decision just about ensures that either way.

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Speaker 4: This seems to be a tremendous win for the Trump

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Speaker 4: defense team because in the first instance, the case has

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Speaker 4: been completely thrown out, and even if the Court of

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Speaker 4: Appeals does reverse it, it's going to slow the case

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Speaker 4: down to make it nearly impossible to have this case

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Speaker 4: tried before the election. And this is really troubling for

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Speaker 4: the government because let's remember, this was viewed by many

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Speaker 4: people as the strongest case brought by the Department of

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Speaker 4: Justice and in fact even by state prosecutors against former

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Speaker 4: President Trump, because it did not involve a novel legal

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Speaker 4: theory as some of the other cases did, and because

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Speaker 4: it was focused almost exclusively on actions after he left office,

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Speaker 4: which removed it from some of the immunity issues that

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Speaker 4: ultimately is going to be a problem for Special Counsel

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Speaker 4: of Jack Smith and connecting with the January sixth case. So,

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Speaker 4: while this case was perhaps not the most exciting, it

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Speaker 4: involved in properly removing classified documents according to the government,

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Speaker 4: and then the government alleged that former President Trump obstructed

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Speaker 4: the government in terms of their ability to retrieve those documents.

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Speaker 4: While it's not the most exciting case out there, it

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Speaker 4: was really on the most solid legal footing, and prosecutors,

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Speaker 4: I think, thought that this might be the best chance

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Speaker 4: they had out there to gain a conviction in one

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Speaker 4: of the federal cases.

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Speaker 2: This is another in a string of recent legal wins

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Speaker 2: for Trump. That controversial Supreme Court decision this month on

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Speaker 2: presidential immunity has put the DC election interference case on

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Speaker 2: hold and even delayed the sentencing in the New York

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Speaker 2: hush money case. The Georgia racketeering case is also on hold,

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Speaker 2: pending an appeal. What does it say about the legal

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Speaker 2: system that only one case out of four went to

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Speaker 2: trial because of the never ending motions filed by Trump's attorneys.

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Speaker 4: I think people who have been watching these cases closely,

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Speaker 4: if they're not lawyers, are probably scratching their heads at

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Speaker 4: the legal system. They're seeing a system that seems to

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Speaker 4: be falling down of its own weight in the sense

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Speaker 4: that the arguments are delaying the cases over and over again.

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Speaker 4: And even lawyers who've been watching I think, for the

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Speaker 4: most part, are somewhat surprised at what has happened in

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Speaker 4: many of these cases. Lots of these arguments that were

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Speaker 4: made were real long shot arguments. Even the presidential immunity argument.

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Speaker 4: I think most expected that the Supreme Court might not

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Speaker 4: take that case, or if they did, they certainly would

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Speaker 4: not carve out the type of presidential immunity that they did.

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Speaker 4: So I think this is a case that has really

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Speaker 4: shocked the public and its shocked the legal community. It's

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Speaker 4: not gone the way that one would have expected, and

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Speaker 4: it certainly is a huge win for the Trump defense

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Speaker 4: team because if the ultimate goal was to delay these cases,

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Speaker 4: they have certainly succeeded in doing that. And it's now

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Speaker 4: likely that the only case that will have gone to

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Speaker 4: trial before the election is the case brought by the

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Speaker 4: Manhattan DA And now even that case, as you mentioned,

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Speaker 4: is being held up presenting purposes because of the presidential

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Speaker 4: immunity decision. I don't think it's likely that the judge

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Speaker 4: in that case will throw that case out, or that

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Speaker 4: he'll decide that the presidential immunity decision has any real

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Speaker 4: bearing on that case. I think the defense will points

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Speaker 4: to a certain testimony in that case and argue that

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Speaker 4: the presidential immunity case requires that case to be overturned.

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Speaker 4: But I think ultimately the trialgy judge there will call

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Speaker 4: that tumulative evidence or harmless error, and that that case

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Speaker 4: will stand. But in terms of all these federal cases,

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Speaker 4: they are very much up in the air now, both

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Speaker 4: legally and in terms of whether or not any of

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Speaker 4: them will ever be tried before the election, or will

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Speaker 4: ever be tried at all, of.

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Speaker 2: Course, because if Trump wins the election, the federal cases

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Speaker 2: will sort of evaporate in one way or another. Thanks

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Speaker 2: so much, Bob. That's Robert Mins of maccarter and English.

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Speaker 2: Coming up next, the Landmark Youth Climate lawsuit reaches the

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Speaker 2: end of the road. I'm June Grosso and you're listening

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Speaker 2: to Bloomberg. After nearly a decade, the Landmark Youth Climate

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Speaker 2: lawsuit is nearing its end, buckling under adverse court decisions

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Speaker 2: and fierce opposition from three presidential administrations. It was back

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Speaker 2: in twenty fifteen that twenty one young people took on

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Speaker 2: the US government with a novel argument that the government

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Speaker 2: was violating their constitutional rights by allowing decades worth of

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Speaker 2: greenhouse gas emissions to spew into the atmosphere. The lead

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Speaker 2: plaintiff in the lawsuit, Kelsey Juliana nineteen at the time,

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Speaker 2: said the EPA had failed to implement a plan to

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Speaker 2: reduce toxic air emissions as required by the nineteen ninety

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Speaker 2: amendments to the Clean Air Act.

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Speaker 7: They failed to act on creating that plan that would

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Speaker 7: ensure the survivability and the thrivability of my generation and

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Speaker 7: those to come.

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Speaker 4: And so here we.

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Speaker 7: Are, twenty six years later, asking for the most fundamental question,

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Speaker 7: do you recognize me as someone who has rights as

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Speaker 7: someone who has the same rights to live and to

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Speaker 7: live healthy.

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Speaker 2: But now, after nine years of litigation and hopes that

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Speaker 2: the case might finally make it to trial, the Biden

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Speaker 2: administration was successful in having the case dismissed on a

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Speaker 2: procedural point. My guest is environmental law expert Pat Parento,

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Speaker 2: a professor at the Vermont Law and Graduate School. Pat,

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Speaker 2: before we go into its tortured legal history, tell us

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Speaker 2: about the novel claims in the Juliana case.

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Speaker 5: So, this case was brought to try to establish a

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Speaker 5: constitutional right under the federal US Constitution under Article fourteen,

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Speaker 5: sort of fundamental right to a stable climate, where as

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Speaker 5: Judge Aiken, who was the District court judge and Juliana

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Speaker 5: said a client system capable of supporting human life on Earth. Now,

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Speaker 5: some of us might like to think there should be

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Speaker 5: such a constitutional right, but the case was brought to

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Speaker 5: try to establish that in federal court. That's had almost

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Speaker 5: a decade run in the federal courts, which now seems

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Speaker 5: to have come to an end.

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Speaker 2: And there were two different panels of the Ninth Circuit

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Speaker 2: that heard this case.

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Speaker 5: Yeah, it does have a tortured procedural history. So the

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Speaker 5: original complaint really shot for the moon. It asked for

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Speaker 5: a plan to reduce carbon emissions basically down to zero

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Speaker 5: or net zero by a date certain, with milestones all

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Speaker 5: along the way. Very very aggressive demand that federal courts

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Speaker 5: order the federal government, both the President and the Congress,

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Speaker 5: order them to come up with a plan to achieve

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Speaker 5: net zero carbon emissions for the US economy. Very aggressive.

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Speaker 5: That complaint went to the first panel of the Ninth

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Speaker 5: Circuit and by a two to one decision, that panel

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Speaker 5: decided that kind of broad, comprehensive relief was not available

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Speaker 5: under our jurisprudence, and so they dismissed the case on stand.

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Speaker 5: They agreed that these youth plaintiffs had shown injury. Some

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Speaker 5: of the injuries were physical. One of the kids had asthma,

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Speaker 5: and we know climate change by heating up the air

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Speaker 5: we breathe triggers asthma attacks. Another one of the youth

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Speaker 5: planeffs said they were in a multi generation ranching family

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Speaker 5: and they were watching their ranch dry up. And so

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Speaker 5: right down the list, the court said, yes, these individual

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Speaker 5: young people have shown particularized injury, which is the first

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Speaker 5: step establishing standing, and this was a really important finding.

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Speaker 5: The court agreed that the actions of the federal government,

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Speaker 5: not just in action, but the actions going back five

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Speaker 5: administrations Democrat and Republicans, had been making the situation worse

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Speaker 5: by continuing to promote and develop fossil fuels, et cetera.

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Speaker 5: And so therefore the plaintiffs had shown that their injuries

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Speaker 5: were being caused or contributed to by the actions that

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Speaker 5: the federal government was persist in taking. So that was

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Speaker 5: two steps towards proving standing. It was the third step

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Speaker 5: that tripped them up what we call redressibility, which means

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Speaker 5: assuming this injury, assuming the actions of the government are

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Speaker 5: making the injury worse, what can the courts do about it?

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Speaker 5: And that's where the first panel of the Ninth Circuit

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Speaker 5: tripped their hands. They said, we simply don't have the

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Speaker 5: authority under our constitutional system of government. That's the matter

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Speaker 5: for the legislature and the executive branch to work out.

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Speaker 5: The courts can't simply order it.

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Speaker 2: Then the trial judge allowed the youth plaintiffs to amend

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Speaker 2: the complaint to only seek declaratory relief, basically, tell us

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Speaker 2: if we have a constitutional right to a safe climate

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Speaker 2: or not. And it went back to the Ninth Circuit.

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Speaker 2: The first panel was three judges appointed by President Obama.

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Speaker 2: The second panel was a different story.

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Speaker 5: So now we're talking about free Trump appointees to the

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Speaker 5: Ninth Circuit. And they excoriated Judge Aiken. They said it

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Speaker 5: was basically arbitrary, almost outrageous, perhaps for her to not

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Speaker 5: read the original decision of the first panel as a

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Speaker 5: requirement that the whole case be thrown out, lock stock,

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Speaker 5: and barrel. So that's what the second panel said, and

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Speaker 5: that was a three zero decision. And then we come

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Speaker 5: to the very last gasp, which is after this second

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Speaker 5: panel throws the case out, the youth plaintiffs lawyers asked

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Speaker 5: for the full Ninth Circuit to review the case in

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Speaker 5: what we call en banc, but it takes at least

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Speaker 5: one judge of the Ninth Circuit to request a vote

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Speaker 5: on whether to take the case up before an on

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Speaker 5: bank panel, and they didn't even get one vote. So

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Speaker 5: that's where we are today. The case has been dismissed.

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Speaker 5: There's no further appeal to the Ninth Circuit. The only

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Speaker 5: remaining avenue for appeal would be to file a petition

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Speaker 5: for cusharari or review to the US Supreme Court, something

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Speaker 5: that terrifies a lot of us.

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Speaker 2: I mean, it's been at the Supreme Court twice already

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Speaker 2: on other issues.

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Speaker 5: It went up twice on what's called a rid of mandamus,

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Speaker 5: which is an extraordinary remedy. The Supreme Court never granted

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Speaker 5: the petition for mandamus, but they in two different orders,

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Speaker 5: and particularly the last one written by Chief Justice Roberts,

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Speaker 5: they made it crystal clear that this case should be dismissed.

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Speaker 5: Roberts basically was speaking directly to Judge Aiken, and he

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Speaker 5: was saying to her, you need to take another look

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Speaker 5: at whether this case should be certified for reviews. By

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Speaker 5: the Ninth Circuit, And the Ninth Circuit should look very

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Speaker 5: hard at whether a case of this magnitude in scope

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Speaker 5: belongs in federal court. So not too subtle message to

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Speaker 5: the lower courts get rid of it, and.

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Speaker 2: I guess the Ninth Circuit got that message. As you say,

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Speaker 2: the only legal path left for the plaintiffs is to

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Speaker 2: appeal to the Supreme Court, a court that has not

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Speaker 2: been friendly to environmental concerns. Is it wiser to just

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Speaker 2: let the case end?

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Speaker 5: There's no way the Supreme Court is going to take

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Speaker 5: this case for any reason than then to do further

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Speaker 5: damage to cases being brought to try to seek remedies

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Speaker 5: for climate They could even revisit the Massachusetts versus CPA case,

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Speaker 5: which turned on a five to four vote on whether

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Speaker 5: there was standing to challenge EPA's failure to regulate greenhouse

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Speaker 5: gas emissions, and the majority in that case are now

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Speaker 5: gone basically, so it's a totally different court. So the

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Speaker 5: only reason this Supreme Court would take the case would

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Speaker 5: be perhaps to review Massachusetts versus CPA and almost certainly

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Speaker 5: issue a decision that would slam the courthouse doors shut

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Speaker 5: once and for all on plaintiffs seeking remedies for climate change.

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Speaker 2: Every administration, the Obama administration, the Trump administration, the Biden administration,

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Speaker 2: some which we consider friendly to environmental causes, has been aggressive,

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Speaker 2: so aggressive in preventing this case from going to trial.

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Speaker 5: Why yeah, I've said from the beginning, why not have

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Speaker 5: the trial? My goodness, if they hadn't fought so hard

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Speaker 5: all the way back to Obama, they could have had

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Speaker 5: a trial over with. And jedde Jakin was not saying

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Speaker 5: she was going to find in favor of the planets.

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Speaker 5: She was saying, you take litigation one step at a time.

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Speaker 5: The first question is their standing. The second question is

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Speaker 5: is their liability. And what she was saying is we'll

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Speaker 5: have a trial and I'll make a decision based on

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Speaker 5: the trial. So at a minimum, I thought, why not

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Speaker 5: let them have a trial? You know, the Department of

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Speaker 5: Justice is hired and paid for by us the taxpayers,

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Speaker 5: to defend the government in court. Courts are supposed to

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Speaker 5: say what the law is, so do it. So, I mean,

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Speaker 5: this all could have been avoided in my view if

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Speaker 5: they just had the trial long before now. Either Judge

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Speaker 5: Aiken would have ruled against the planeffs in one form

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Speaker 5: or another, or the case could have gone up on

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Speaker 5: appeal on the basis of a trial record including all

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Speaker 5: the evidence in support of what the youth planets were

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Speaker 5: arguing and in support of what the government was doing

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Speaker 5: to make the climate crisis worse. And wouldn't that have

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Speaker 5: served some public purpose to have a record like that

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Speaker 5: based on a trial tested by the evidence. I think

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Speaker 5: the answer to that is yes, it would have benefited

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Speaker 5: from that, even if an end result was probably going

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Speaker 5: to be no determination of a constitutional right. I think

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Speaker 5: that's fair to say, even with the Supreme Court we

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Speaker 5: had before the Trump appointees, but certainly now there's no

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Speaker 5: chance that this court would ever recognize such a constitutional right. Hell,

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Speaker 5: they're busy revoking constitutional rights like Row versus Wade. So

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Speaker 5: we weren't going to get a favorable decision out of

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Speaker 5: this Supreme Court no matter what. But at least having

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Speaker 5: a trial for no less than at least historic purposes

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Speaker 5: would have made the case what the dangers were so.

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Speaker 2: Pat is the Juliana case, Dad, Then.

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Speaker 5: I think it's dead. I think it's time to move on.

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Speaker 5: Our children's trust are very reluctant to give up on it,

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Speaker 5: but they've got other avenues. This isn't the end of

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Speaker 5: the story on young plays of asserting constitutional rights. I

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Speaker 5: think it is the end of the road doing so

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Speaker 5: in federal court.

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Speaker 2: And our Children's Trust, which filed the Juliana case, has

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Speaker 2: had more success with similar cases by young environmentalists suing

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Speaker 2: in state court. One of those Held v. Montana, was

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Speaker 2: the first such case to go to trial, and they won.

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Speaker 5: That's right, and it's the first ruling this by a

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Speaker 5: lower court in Montana, Judge Seeley issuing the first declaratory

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Speaker 5: judgment in that case. Unlike Juliana, the court said, all

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Speaker 5: I'm going to consider is a request for declaratory judgment.

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Speaker 5: So this judge was smart enough to limit the case

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Speaker 5: right from the get go. But her ruling backed up

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Speaker 5: by a two hundred separate factual findings, the most detailed

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Speaker 5: findings of fact we've ever seen in a climate case

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Speaker 5: on science on technology, on the physical and mental emotional

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Speaker 5: effects on these young people from climate change, particularly in Montana,

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Speaker 5: and also so challenging Montana's really, how can I put

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Speaker 5: this delicately arbitrary which prohibited state agencies from even considering

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Speaker 5: the climate change effects of licensing, permitting fossil fuel development,

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Speaker 5: from pipelines, from coal mines, from coal burning power plants,

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Speaker 5: et cetera. So that's what the youth plants in the

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Speaker 5: Held versus Montana case, we're arguing, your energy policies are

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Speaker 5: making the situation worse, and you have a law on

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Speaker 5: the books that's blinding the agencies to the consequences of

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Speaker 5: what they're doing, not only to Montana's environment, but to

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Speaker 5: us as the future generation that has to live with

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Speaker 5: all of this. So her decision was historic and that

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Speaker 5: was then taken up on appeal. The Montana Supreme Court

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Speaker 5: has now heard oral arguments on appeal. We're waiting for

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Speaker 5: a decision from the Montana Supreme Court.

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Speaker 2: And young people suing in Hawaii reached a settlement with

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Speaker 2: the state to low remissions and that was a first.

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Speaker 5: So that's the first settlement agreement where a state has

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Speaker 5: agreed to make changes not only to their transportation policy,

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Speaker 5: but actually start ramping up significant investments where they can

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Speaker 5: in mass transit on the Big Island and Oahu. Air

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Speaker 5: travel is the biggest problem. So trying to figure out

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Speaker 5: how are you going to deal with island hopping through

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Speaker 5: airline travel is going to be a real challenge. But

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Speaker 5: the point is they reached an agreement. They've got at

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Speaker 5: least an initial plan for how to begin to reduce

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Speaker 5: emissions from the transportation sector, and then they'll go from there.

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Speaker 2: It's great to finally see these cases actually moving through

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Speaker 2: the courts. Thanks so much, Pat. That's Professor Pat Parento

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Speaker 2: of the Remont Law and Graduate School. Coming up next,

441
00:24:42,600 --> 00:24:45,919
Speaker 2: the conviction of Senator Bob Menendez. I'm June Grosso and

442
00:24:45,920 --> 00:24:47,159
Speaker 2: you're listening to Bloomberg.

443
00:24:48,119 --> 00:24:50,920
Speaker 8: This case has always been about shocking levels of corruption,

444
00:24:51,840 --> 00:24:54,680
Speaker 8: hundreds of thousands of dollars in bribes in the form

445
00:24:54,720 --> 00:24:59,520
Speaker 8: of cash, goal bars a Mercedes Benz. This wasn't politics

446
00:24:59,560 --> 00:25:02,440
Speaker 8: as usually well, this was politics for profit. And now

447
00:25:02,440 --> 00:25:05,600
Speaker 8: that the jury has convicted Bob Menendez, his years of

448
00:25:05,640 --> 00:25:08,120
Speaker 8: selling his office of the highest bidder have finally come

449
00:25:08,160 --> 00:25:08,640
Speaker 8: to an end.

450
00:25:08,880 --> 00:25:13,520
Speaker 2: Manhattan US Attorney Damian Williams basically summed up the prosecution

451
00:25:13,880 --> 00:25:18,760
Speaker 2: sweeping corruption case against Senator Bob Menendez. After the jury

452
00:25:18,840 --> 00:25:23,879
Speaker 2: found the once powerful New Jersey Democrat guilty of bribery, extortion,

453
00:25:24,359 --> 00:25:28,520
Speaker 2: and acting as a foreign agent of Egypt. Menendez continues

454
00:25:28,560 --> 00:25:32,040
Speaker 2: to maintain his innocence and says he expects to succeed

455
00:25:32,200 --> 00:25:32,840
Speaker 2: on appeal.

456
00:25:33,200 --> 00:25:36,760
Speaker 6: I have never violated my public oath. I have never

457
00:25:36,800 --> 00:25:39,560
Speaker 6: been anything but a patriot of my country and for

458
00:25:39,800 --> 00:25:43,399
Speaker 6: my country. I have never ever been a foreign agent.

459
00:25:43,960 --> 00:25:47,399
Speaker 6: And the decision right edo by the jury today would

460
00:25:47,400 --> 00:25:50,439
Speaker 6: put at risk every member of the United States Senate

461
00:25:50,800 --> 00:25:53,680
Speaker 6: in terms of what they think a foreign agent would

462
00:25:53,680 --> 00:25:54,440
Speaker 6: be joining me.

463
00:25:54,480 --> 00:25:58,159
Speaker 2: He's Bloomberg Legal reporter David Voriakiz, who covered the trial.

464
00:25:58,520 --> 00:26:00,720
Speaker 2: David tell us about the prosecution case.

465
00:26:01,320 --> 00:26:05,720
Speaker 1: The case centered around some explosive evidence that the FBI

466
00:26:05,920 --> 00:26:09,640
Speaker 1: sees two years ago at his home in suburban New Jersey,

467
00:26:09,960 --> 00:26:13,880
Speaker 1: and that was thirteen gold bars, nearly five hundred thousand

468
00:26:13,920 --> 00:26:17,879
Speaker 1: dollars in cash, and a black Mercedes Benz convertible that

469
00:26:18,040 --> 00:26:22,400
Speaker 1: prosecutors said was the product of a bribe scheme that

470
00:26:22,560 --> 00:26:28,240
Speaker 1: Menendez and his wife, Nadine received over the previous five years.

471
00:26:28,440 --> 00:26:31,720
Speaker 2: The prosecution had a lot of different kinds of evidence

472
00:26:32,080 --> 00:26:35,080
Speaker 2: against him. You mentioned the gold bars and the five

473
00:26:35,160 --> 00:26:38,280
Speaker 2: hundred thousand dollars in cash stashed around his house, an

474
00:26:38,359 --> 00:26:43,400
Speaker 2: undercover FBI videotape, a witness who flipped and testified against him.

475
00:26:43,640 --> 00:26:46,560
Speaker 2: What was the strongest evidence against him.

476
00:26:47,000 --> 00:26:50,120
Speaker 1: I think the strongest evidence would have to be the

477
00:26:50,440 --> 00:26:54,119
Speaker 1: cash in the gold bars, both of which prosecutors presented

478
00:26:54,240 --> 00:26:57,920
Speaker 1: in court so that the jurors could see what they

479
00:26:57,920 --> 00:27:01,920
Speaker 1: are talking about. There was also three different summary charts

480
00:27:01,920 --> 00:27:08,440
Speaker 1: that included thousands of lines of texts, emails, calls, meetings.

481
00:27:08,880 --> 00:27:13,800
Speaker 1: They had very meticulous and detailed chronologies, because this was

482
00:27:14,040 --> 00:27:20,280
Speaker 1: a subtle and discreete set of interlocking schemes that really

483
00:27:20,320 --> 00:27:25,119
Speaker 1: could only be understood in their totality, in which jurors

484
00:27:25,160 --> 00:27:29,880
Speaker 1: saw the timeline of a number of interactions and how

485
00:27:29,920 --> 00:27:33,040
Speaker 1: they fit together. And so it took time to spell

486
00:27:33,119 --> 00:27:36,760
Speaker 1: that out and for the picture to come into focus.

487
00:27:36,800 --> 00:27:39,320
Speaker 1: And that picture, by the end of the trial, the

488
00:27:39,359 --> 00:27:43,679
Speaker 1: prosecutor said, was an overwhelming case against Menendez and the

489
00:27:43,720 --> 00:27:48,640
Speaker 1: two businessmen tried with him, Will Hannah and Fred Davies, and.

490
00:27:48,600 --> 00:27:50,320
Speaker 2: They were both convicted as well.

491
00:27:50,600 --> 00:27:51,000
Speaker 3: And David.

492
00:27:51,160 --> 00:27:55,040
Speaker 2: Was there any evidence of a quid pro quo of

493
00:27:55,119 --> 00:27:59,040
Speaker 2: him saying I'll do this for you in return for that, I.

494
00:27:59,040 --> 00:28:03,640
Speaker 1: Would say there was no specific admission, say on tape

495
00:28:04,160 --> 00:28:09,200
Speaker 1: or to another witness. Essentially, prosecutors built their case through

496
00:28:09,400 --> 00:28:14,440
Speaker 1: inference in which they showed that right after Menendez, say,

497
00:28:14,560 --> 00:28:17,920
Speaker 1: met with the Attorney General of New Jersey on behalf

498
00:28:17,920 --> 00:28:21,600
Speaker 1: of a businessman. He then called that businessman, who then

499
00:28:21,840 --> 00:28:25,760
Speaker 1: texted someone else who said, I finally found peace. It's

500
00:28:25,840 --> 00:28:30,640
Speaker 1: that sort of stringing together of a collection of different

501
00:28:30,720 --> 00:28:35,320
Speaker 1: discrete pieces of evidence that lead to the clear inference

502
00:28:35,680 --> 00:28:41,200
Speaker 1: that Menendez was engaged in bribery schemes with his wife, Nadine.

503
00:28:41,240 --> 00:28:44,760
Speaker 2: Menendez blamed his wife, and he had the benefit of

504
00:28:44,880 --> 00:28:48,520
Speaker 2: being tried separately. She's going to be tried later, so

505
00:28:48,680 --> 00:28:52,920
Speaker 2: Menandez wasn't put in the uncomfortable situation of pointing to

506
00:28:53,240 --> 00:28:56,800
Speaker 2: his co defendant and wife sitting at the defense table

507
00:28:56,840 --> 00:28:59,920
Speaker 2: with him as the real culprit here. How much evidence

508
00:28:59,920 --> 00:29:02,480
Speaker 2: was there against his wife.

509
00:29:03,000 --> 00:29:06,560
Speaker 1: There was a lot of evidence pointing to Nadine as

510
00:29:06,880 --> 00:29:12,200
Speaker 1: a crucial go between who connected Menendez with the businessmen

511
00:29:12,480 --> 00:29:15,840
Speaker 1: who were on trial with him and with other people

512
00:29:16,400 --> 00:29:20,200
Speaker 1: less directly involved in the case. She also set up

513
00:29:20,240 --> 00:29:26,040
Speaker 1: meetings with Egyptian military people and intelligence officials, and according

514
00:29:26,040 --> 00:29:30,800
Speaker 1: to the government, collected gold bars and cash from Fred Davies,

515
00:29:30,960 --> 00:29:34,720
Speaker 1: one of the co defendants, and also had a crucial

516
00:29:35,000 --> 00:29:38,680
Speaker 1: connection and relationship with will Hanna who was the other

517
00:29:38,840 --> 00:29:42,720
Speaker 1: co defendant, and prosecutors said they were like brother and sister.

518
00:29:42,800 --> 00:29:46,080
Speaker 1: They were very close. And some of the most damning

519
00:29:46,120 --> 00:29:51,840
Speaker 1: evidence involved the Mercedes Benz that another businessman, Jose Uribe,

520
00:29:52,080 --> 00:29:55,840
Speaker 1: gave to her, essentially by handing her a fifteen thousand

521
00:29:55,880 --> 00:29:59,760
Speaker 1: dollars cash down payment in a diner parking lot in

522
00:30:00,160 --> 00:30:04,000
Speaker 1: Jersey and then making monthly payments on the car for

523
00:30:04,040 --> 00:30:06,880
Speaker 1: two and a half years. There was also evidence that

524
00:30:07,560 --> 00:30:12,360
Speaker 1: will Hanna, the other defendant in this case, gave her

525
00:30:12,400 --> 00:30:16,280
Speaker 1: a no show job in which he paid her ten

526
00:30:16,360 --> 00:30:19,840
Speaker 1: thousand dollars a month for three months, and he paid

527
00:30:20,000 --> 00:30:24,000
Speaker 1: off her mortgage on her home in New Jersey when

528
00:30:24,280 --> 00:30:26,800
Speaker 1: she was in a great deal of financial distress.

529
00:30:27,200 --> 00:30:27,720
Speaker 7: You have to.

530
00:30:27,680 --> 00:30:32,640
Speaker 2: Tell the story about the bill that prosecutors used to

531
00:30:32,760 --> 00:30:37,280
Speaker 2: show that Menendez was the one in charge, not his wife.

532
00:30:37,520 --> 00:30:41,440
Speaker 1: There was a crucial meeting behind the Menendez house in

533
00:30:41,800 --> 00:30:45,880
Speaker 1: September of twenty nineteen at ten o'clock at night, in

534
00:30:45,880 --> 00:30:51,120
Speaker 1: which Jose Uribe, the cooperating businessman who pleaded guilty, said

535
00:30:51,120 --> 00:30:54,640
Speaker 1: that he came over and spoke to Bob Menendez on

536
00:30:54,720 --> 00:30:58,320
Speaker 1: the patio behind their house. And this was the night

537
00:30:58,400 --> 00:31:01,360
Speaker 1: before Menendez was going to meet with the Attorney General

538
00:31:01,400 --> 00:31:06,280
Speaker 1: of New Jersey and make the case that state prosecutors

539
00:31:06,360 --> 00:31:10,920
Speaker 1: should drop their criminal investigation of someone who was close

540
00:31:10,960 --> 00:31:17,240
Speaker 1: to Eurebe. Jurors heard Eurebe talk about Menendez summoning his wife,

541
00:31:17,440 --> 00:31:21,160
Speaker 1: Nadine with a bell, and that she came out from

542
00:31:21,280 --> 00:31:24,200
Speaker 1: inside the house and delivered a piece of paper where

543
00:31:24,360 --> 00:31:27,280
Speaker 1: Eurebe wrote down the names of the people that he

544
00:31:27,360 --> 00:31:30,560
Speaker 1: was interested in. The bell became sort of a symbol

545
00:31:30,960 --> 00:31:36,960
Speaker 1: of whether Menendez really controlled Nadine or not, because the

546
00:31:37,000 --> 00:31:41,760
Speaker 1: Menendez defense was that Nadine was engaging in a lot

547
00:31:41,760 --> 00:31:46,080
Speaker 1: of corrupt acts behind Menndez's back. The prosecutors tried to

548
00:31:46,080 --> 00:31:50,000
Speaker 1: puncture that defense and say that he knew everything that

549
00:31:50,080 --> 00:31:53,680
Speaker 1: Nadine was doing and that at certain times, as in

550
00:31:53,680 --> 00:31:56,320
Speaker 1: the bell incident, she was sort of under his thumb.

551
00:31:56,920 --> 00:32:00,440
Speaker 2: The prosecutor said, the bell showed that Menendez was not

552
00:32:00,560 --> 00:32:04,360
Speaker 2: a puppet having his strings pull by someone he summoned

553
00:32:04,400 --> 00:32:07,360
Speaker 2: with a bell. Now he's become the first member of

554
00:32:07,480 --> 00:32:11,320
Speaker 2: Congress to be convicted of being a public official acting

555
00:32:11,440 --> 00:32:14,320
Speaker 2: as a foreign agent. Was there any evidence that his

556
00:32:14,440 --> 00:32:16,840
Speaker 2: actions compromised national security?

557
00:32:17,360 --> 00:32:22,120
Speaker 1: There was an incident in which Menendez threw his wife

558
00:32:22,160 --> 00:32:26,200
Speaker 1: and then will Hannah passed along the number of people

559
00:32:26,320 --> 00:32:30,280
Speaker 1: working at the US embassy in Cairo. Prosecutor said that

560
00:32:30,440 --> 00:32:34,280
Speaker 1: was sensitive information at the time and could have compromised

561
00:32:34,320 --> 00:32:37,640
Speaker 1: the people who worked there and exposed them to potential

562
00:32:37,920 --> 00:32:41,880
Speaker 1: terrorist attacks. The defense said that that information had already

563
00:32:41,920 --> 00:32:46,360
Speaker 1: been made public in a government report years earlier, but

564
00:32:46,440 --> 00:32:50,680
Speaker 1: the prosecutors countered by saying that that was old information

565
00:32:50,840 --> 00:32:54,280
Speaker 1: and the current information was not public. So while they

566
00:32:54,280 --> 00:32:59,920
Speaker 1: didn't actually charge him with doing harm to US security interests,

567
00:33:00,080 --> 00:33:03,920
Speaker 1: they certainly suggested that that was a possibility by Menendez

568
00:33:04,040 --> 00:33:06,840
Speaker 1: passing along how many people worked at the US embassy

569
00:33:06,880 --> 00:33:07,400
Speaker 1: in Cairo.

570
00:33:07,920 --> 00:33:11,240
Speaker 2: After the rick, Menendez said the decision would put every

571
00:33:11,320 --> 00:33:14,400
Speaker 2: member of the Senate at risk in terms of what

572
00:33:14,440 --> 00:33:16,640
Speaker 2: it means to be a foreign agent. Do you know

573
00:33:16,680 --> 00:33:17,520
Speaker 2: what he meant by that?

574
00:33:17,960 --> 00:33:22,160
Speaker 1: Yes. Their argument was during the trial that he was

575
00:33:22,240 --> 00:33:25,840
Speaker 1: not engaged in being a foreign agent, that he didn't

576
00:33:25,880 --> 00:33:29,680
Speaker 1: have Egypt's interests at heart, that in fact, he only

577
00:33:29,760 --> 00:33:33,040
Speaker 1: had the United States interest in heart, and that as

578
00:33:33,240 --> 00:33:37,040
Speaker 1: chairman of the Senate Foreign Relations Committee, he was engaged

579
00:33:37,080 --> 00:33:41,080
Speaker 1: in diplomacy, not corruption, so that all of his interactions

580
00:33:41,160 --> 00:33:46,640
Speaker 1: with Egyptian military and intelligence officials were acts of diplomacy

581
00:33:46,960 --> 00:33:50,600
Speaker 1: and him exercising his power as chairman of that Foreign

582
00:33:50,680 --> 00:33:54,600
Speaker 1: Relations Committee. So I think what he's saying is that

583
00:33:54,840 --> 00:33:58,080
Speaker 1: if you find that what I did was corrupt and

584
00:33:58,600 --> 00:34:00,800
Speaker 1: acting as an agent of a four peign country, than

585
00:34:00,960 --> 00:34:02,800
Speaker 1: it's going to be the case for a bunch of

586
00:34:02,840 --> 00:34:04,240
Speaker 1: other senators as well.

587
00:34:04,640 --> 00:34:08,160
Speaker 2: Menandez didn't take the stance. So how did he defend himself,

588
00:34:08,360 --> 00:34:11,680
Speaker 2: particularly with regard to the gold bars and the cash

589
00:34:11,719 --> 00:34:12,600
Speaker 2: and the Mercedes.

590
00:34:13,080 --> 00:34:17,239
Speaker 1: Well, the general defense strategy was to attack the witnesses

591
00:34:17,680 --> 00:34:21,480
Speaker 1: through cross examination, and his lawyers were quite effective at that.

592
00:34:21,880 --> 00:34:24,560
Speaker 1: I'm sure they knew that he wasn't going to testify,

593
00:34:24,640 --> 00:34:28,680
Speaker 1: so they put their case on primarily through the prosecution witnesses,

594
00:34:28,680 --> 00:34:31,480
Speaker 1: although they did call a half dozen witnesses. At the end,

595
00:34:31,719 --> 00:34:35,279
Speaker 1: he had a number of defenses. But as you say,

596
00:34:35,400 --> 00:34:37,560
Speaker 1: he had to come up with a story for the

597
00:34:37,600 --> 00:34:40,560
Speaker 1: cash and the gold bars. As far as the cash went,

598
00:34:40,719 --> 00:34:44,920
Speaker 1: he said that he had withdrawn cash in the amount

599
00:34:45,200 --> 00:34:49,200
Speaker 1: of four hundred dollars regularly, say, every two or three weeks,

600
00:34:49,239 --> 00:34:52,880
Speaker 1: for decades, and that would account for all the cash

601
00:34:52,960 --> 00:34:56,400
Speaker 1: that was lying around his house. The gold bars, he said,

602
00:34:56,719 --> 00:35:01,920
Speaker 1: were gifts to Nadine from her wealthy family in Lebanon,

603
00:35:02,400 --> 00:35:06,800
Speaker 1: and the prosecutors countered that by saying that the larger

604
00:35:06,840 --> 00:35:10,719
Speaker 1: gold bars that they seized bore the serial numbers that

605
00:35:10,880 --> 00:35:14,560
Speaker 1: matched a list in the possession of Fred Davies, a

606
00:35:14,760 --> 00:35:17,400
Speaker 1: prominent developer in Edgewater, New Jersey.

607
00:35:17,760 --> 00:35:22,760
Speaker 2: In twenty seventeen, Menandez was tried on unrelated federal bribery

608
00:35:22,800 --> 00:35:26,360
Speaker 2: and corruption charges that ended in a mistrial. Did the

609
00:35:26,360 --> 00:35:30,839
Speaker 2: evidence here show that that mistrial apparently didn't deter him

610
00:35:31,200 --> 00:35:33,840
Speaker 2: These schemes allegedly took place soon after.

611
00:35:34,320 --> 00:35:38,440
Speaker 1: Yes, that trial ended in the fall of twenty seventeen,

612
00:35:38,640 --> 00:35:42,640
Speaker 1: and the evidence showed that the bribery plot in this

613
00:35:42,800 --> 00:35:46,720
Speaker 1: case for which he was convicted began in early twenty eighteen.

614
00:35:47,080 --> 00:35:51,759
Speaker 1: Of course, this was handled by the federal prosecutors in Manhattan,

615
00:35:51,960 --> 00:35:55,400
Speaker 1: the Southern District of New York, presumably because they felt

616
00:35:55,719 --> 00:35:58,800
Speaker 1: there would be a conflict for the prosecutors in New Jersey.

617
00:35:59,160 --> 00:36:03,000
Speaker 2: He's going to be sentenced on October twenty ninth. He

618
00:36:03,040 --> 00:36:05,799
Speaker 2: faces decades in prison on paper. What do you think

619
00:36:05,840 --> 00:36:07,920
Speaker 2: a likely sentence might be.

620
00:36:08,760 --> 00:36:12,640
Speaker 1: On the most serious charges, he faces twenty years in prison.

621
00:36:12,719 --> 00:36:15,399
Speaker 1: It's very rare in a white collar case like this

622
00:36:15,600 --> 00:36:19,400
Speaker 1: for a first time non violent offender with a long

623
00:36:19,560 --> 00:36:23,080
Speaker 1: career of public service to get anything like that kind

624
00:36:23,120 --> 00:36:26,400
Speaker 1: of time. It's hard to know. If I had to guess,

625
00:36:26,480 --> 00:36:28,800
Speaker 1: I would say maybe several years.

626
00:36:29,080 --> 00:36:32,040
Speaker 2: He is seventy years old, so the judge will most

627
00:36:32,160 --> 00:36:35,319
Speaker 2: likely take that into account. Thanks so much, David for

628
00:36:35,360 --> 00:36:39,719
Speaker 2: your reporting throughout the trial. That's Bloomberg Legal reporter David Voriakis.

629
00:36:40,160 --> 00:36:44,080
Speaker 2: Menandez has six months remaining in his term, but Democrats

630
00:36:44,120 --> 00:36:46,520
Speaker 2: have made it clear they don't want him in office

631
00:36:46,600 --> 00:36:50,720
Speaker 2: any longer. Within minutes of the verdict on Tuesday, Senate

632
00:36:50,800 --> 00:36:54,600
Speaker 2: majority leader Chuck Schumer called for his resignation, and New

633
00:36:54,680 --> 00:36:58,080
Speaker 2: Jersey Governor Phil Murphy said the Senate should expel him

634
00:36:58,160 --> 00:37:01,359
Speaker 2: if he refuses to step down. Menandez has taken a

635
00:37:01,400 --> 00:37:04,840
Speaker 2: defiant stance since he was indicted in September of last

636
00:37:04,920 --> 00:37:09,759
Speaker 2: year and hasn't indicated whether he'll voluntarily resign, but expulsion

637
00:37:10,000 --> 00:37:14,239
Speaker 2: requires a two thirds majority and is exceedingly rare. The

638
00:37:14,320 --> 00:37:17,279
Speaker 2: last time it was even considered by the Senate was

639
00:37:17,400 --> 00:37:21,320
Speaker 2: almost thirty years ago, and in our history, only fifteen

640
00:37:21,480 --> 00:37:24,839
Speaker 2: senators have ever been expelled, almost all of them during

641
00:37:24,840 --> 00:37:27,120
Speaker 2: the Civil War. And that's it for this edition of

642
00:37:27,120 --> 00:37:30,160
Speaker 2: the Bloomberg Law Podcast. Remember you can always get the

643
00:37:30,239 --> 00:37:33,160
Speaker 2: latest legal news by subscribing and listening to the show

644
00:37:33,320 --> 00:37:37,880
Speaker 2: on Apple Podcasts, Spotify, and at Bloomberg dot com, slash podcast,

645
00:37:37,920 --> 00:37:41,839
Speaker 2: slash Law. I'm June Grosso and this is Gloomberg