Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight and analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud
Speaker 1: and on Bloomberg dot com Slash podcasts. The defense and
Speaker 1: the Paul Manafort trial rested its case without calling any
Speaker 1: witnesses yesterday. Manafort's attorney, Kevin Downing, explained why while walking
Speaker 1: out of the Alexandria Federal Courthouse yesterday, Mr Manafort just
Speaker 1: rested his case, and he did so because he and
Speaker 1: his legal team believe that the government has not met
Speaker 1: its burden approved joining me as former federal prosecutor Ellie Honick,
Speaker 1: special counsel at Loewenstein Sandler Ellie as a federal prosecutor.
Speaker 1: How many times do you think you heard the defense
Speaker 1: say the government has not met its burden as an
Speaker 1: explanation for White didn't present its case all the time,
Speaker 1: whatever the number of trials I did, times a hundred um.
Speaker 1: This is this is the the constant refrain from defense lawyers,
Speaker 1: and it should be you know, that's how our constitution
Speaker 1: is set up. It is the burden of the prosecution
Speaker 1: to prove every count beyond a reasonable doubt. And so
Speaker 1: it's not at all on common to see the kind
Speaker 1: of defense that we're seeing from Manapar here, which is
Speaker 1: no defense really. Um. But I don't mean that in
Speaker 1: a derogatory way. I mean they don't have to put
Speaker 1: on in any kind of defense, and so it's what
Speaker 1: we just call a reasonable about defense. Um. You don't
Speaker 1: put on any affirmative evidence of your own as a defendant.
Speaker 1: You just claim the government has not carried its burden.
Speaker 1: That's obviously true that you don't have to put on
Speaker 1: a case, and many defendants don't. But would you expect
Speaker 1: with this the high caliber and high price of this
Speaker 1: defense team, you have three defense lawyers basically in the courtroom,
Speaker 1: that you would expect at least some character witnesses or
Speaker 1: is that too dangerous? Uh No, I wouldn't equate, you know,
Speaker 1: the quality with with quantity um and character witnesses. I've
Speaker 1: I've been on trials where people have hall character witnesses.
Speaker 1: They really don't do much because all they come out
Speaker 1: and say is this is a good person and he
Speaker 1: gives the charity. And you know, the jury usually understands
Speaker 1: that has nothing to do with whether he committed the
Speaker 1: charge crimes. A person can be a good person and
Speaker 1: take care of his family and donate to charity, but
Speaker 1: still commit bank fraud and tax fraud. So um, sometimes
Speaker 1: I think jury see that as as just a dog
Speaker 1: and pony show. Is sort of superficial. So if I
Speaker 1: was in the shoes of the defense or I think
Speaker 1: I do the same thing he did, I think I'd
Speaker 1: either mount a very robust defense or just go with
Speaker 1: reasonable belt. So now closings today, Gates, Rick Gates, the
Speaker 1: star of witness, appeared to have suffered some credibility problems
Speaker 1: during a tough cross examination he which exposed some lies.
Speaker 1: Is the defense likely to stick with that blame the
Speaker 1: star witness strategy and it's closing. They absolutely will. It's
Speaker 1: really the only place they have to go. You know,
Speaker 1: you can't attack the documents. He can't really attack the
Speaker 1: bank witnesses that the vendors that came in. So they
Speaker 1: made clear in their opening they're gonna attack with Gates,
Speaker 1: and and I would expect that's what they're gonna do.
Speaker 1: And you can already see, you know, the prosecution is
Speaker 1: actually just within the last few minutes concluded, it's closing,
Speaker 1: and you can see the prosecutors are already bracing for that.
Speaker 1: And and the line out of the prosecution's closing is
Speaker 1: the documents of the star witness in this case. Which
Speaker 1: when I saw that, I thought that's a smart line.
Speaker 1: It's it's not dazzling, it's not catchy or anything, but
Speaker 1: I think it's a really good way for the prosecutors
Speaker 1: to to sort of take the focus off of Rick
Speaker 1: Gates as the criminal. Of course, that's why he's up
Speaker 1: on the stand, you know, that's that's why Manafort liked him.
Speaker 1: But ultimately, look at the documents. So the prosecution has
Speaker 1: to prove that Manafort had criminal intent. How do they
Speaker 1: get inside his mind when there are witnesses between Manafort
Speaker 1: and the transactions. Yeah, that's a circumstantial you know. So
Speaker 1: people people use the phrase circumstantial evidence like it's a
Speaker 1: bad thing, but it's not necessarily and judges will instructures.
Speaker 1: You may use your common sense inferences to to draw
Speaker 1: to draw inferences about what the circumstances say. So if
Speaker 1: these if these accounts are controlled by manaphor, which it
Speaker 1: seems clear that they are, and if he's ordering documents
Speaker 1: to be falsified, as it seems clearly that he was.
Speaker 1: And if he's the one receiving all the benefit, all
Speaker 1: the millions of dollars, which seems pretty clear as well,
Speaker 1: then then a jury as well when it's right to
Speaker 1: infer that he had the intent. Now we've talked about
Speaker 1: the judge before moving the trial along, but we haven't
Speaker 1: talked about all the comments that the judge made during
Speaker 1: the trial, some on the prosecution's evidence and one that
Speaker 1: was flatly contradicted by a transcript which he brought out,
Speaker 1: But he never really said he was wrong. Could his
Speaker 1: statements have an impact on the jury? They could. Juries,
Speaker 1: of course listened to judges, and you know the judge
Speaker 1: is the most powerful figure in the court room, and
Speaker 1: juries literally look up at the judge. So yes, juries
Speaker 1: are swayed by things judges say. I think the judge
Speaker 1: got a few things wrong here, as you pointed out, um,
Speaker 1: and I think he even sort of misstated the law
Speaker 1: when he when he snapped at one of the witnesses.
Speaker 1: Can you tell us about bank loan that actually happened.
Speaker 1: It's a climate if they tried to get a bank
Speaker 1: loan illegally, even if that loan didn't happen, So that
Speaker 1: could have an impact. I will say, though, on the
Speaker 1: other hand, I've seen situations where judges have bullied one
Speaker 1: party or another, maybe the prosecutors, maybe the defense. But
Speaker 1: sometimes if the judge is really uh over, you know,
Speaker 1: comes on too strong or abusive to a party, it
Speaker 1: has the effect of actually rallying the jury to that
Speaker 1: party side. You know that the party will sort of
Speaker 1: start to empathize or sympathize with that side, and that
Speaker 1: can actually sort of work the opposite way as well.
Speaker 1: Let's turn to the Muller investigation for a moment. Trump's
Speaker 1: lawyer Rudy Giuliani has been stating deadlines from Muller to
Speaker 1: end the investigation just about since he got on the team.
Speaker 1: Now he's claiming that if the investigation isn't over by September, quote,
Speaker 1: then we have a very very serious violation of the
Speaker 1: Justice Department rules. Explain that murky policy at the Justice Department,
Speaker 1: and whether where Trump isn't even on the ballot, there's
Speaker 1: any problem here If Rudy is off base and he
Speaker 1: knows he's he's been at this long he worked for
Speaker 1: the Department Justice for decades um. This is first of all,
Speaker 1: the idea that that you don't do things within sixty
Speaker 1: days of an election is a custom and a practice.
Speaker 1: It is not a rule. It is not a regulation,
Speaker 1: It is not a statute. Second of all, Rudy seems
Speaker 1: to be suggesting that the rule says either you absolutely
Speaker 1: stop everything you're doing, you pause it until after the election,
Speaker 1: or it sounds like what Rudy's really saying is they
Speaker 1: have to finish by then and I have to just
Speaker 1: end the investigation. And neither of those are true. What
Speaker 1: the custom is is you don't take over steps, You
Speaker 1: don't get behind a podium and announce a new set
Speaker 1: of charges. You you know, typically don't go out and
Speaker 1: do and arrest in that period. But can you continue
Speaker 1: doing your work? Of course, and and uh Mulla has
Speaker 1: made clear that he intends to keep doing his work.
Speaker 1: There's already there's a known grand jury day for Kristin
Speaker 1: Davis for September seven, So he has no intention on
Speaker 1: stopping what he's doing on September one, nor should he. Now.
Speaker 1: Giuliani has gotten the facts wrong at times, he's gotten
Speaker 1: the law wrong at times, But has he succeeded in
Speaker 1: confusing the public, murking the waters. It could be and
Speaker 1: that may be the goal. Um. You know, he's certainly
Speaker 1: been out there in visible and loud, and I guess
Speaker 1: if he says something enough times, it sort of tends
Speaker 1: to stick in people's heads. And you know, there is
Speaker 1: pulling out there that shows that a good number of
Speaker 1: people across parties Democrats are Republicans would like to see
Speaker 1: Mueller finish up by September one. But everybody wants every
Speaker 1: criminal investigation to finish up, whether you're being investigated or
Speaker 1: you're just a member of the public. It's not pleasant,
Speaker 1: but it's necessary that it go on until it's done
Speaker 1: right and concluded. And certainly the length of the Mueller
Speaker 1: investigation is far less so far than some of the
Speaker 1: other Special Counsel investigations. Thanks so much, Ellie, always a pleasure.
Speaker 1: That's Ellie Honick, Special Counsel A Lowenstein Sandler. It's unprecedented.
Speaker 1: On Monday night, the West Virginia House of Delegates voted
Speaker 1: to impeach another branch of government, the entire state Supreme Court.
Speaker 1: If the Senate also votes to impeach the justices, their
Speaker 1: seats will be filled by the state's Republican governor, except
Speaker 1: for one seat, which the voters will decide because Democratic
Speaker 1: Justice Robin Gene Davis retired from her post effective one
Speaker 1: day before the impeachment. The majority members have ignored, ignored
Speaker 1: the will of the people who elected the justices of
Speaker 1: this court. They have erased the lines of separation between
Speaker 1: the branches of government. Joining me is Patrick McGinley, a
Speaker 1: professor at the West Virginia University College of Law. Patrick,
Speaker 1: is this really about extravagance spending by the justices or
Speaker 1: is there more? Well? Certainly on the surface, uh, it's uh.
Speaker 1: The focus has been on extravagant spending and mismanagement by
Speaker 1: members of the Supreme Court, but critics UH suggests that
Speaker 1: there's more to it. That this is a power play
Speaker 1: by the Republican legislature and the governor to replace all
Speaker 1: of the members of the Supreme Court with um UH
Speaker 1: justices friendly to their perspective by appointment of the governor. UH.
Speaker 1: And so that the specter of political impeachment certainly is
Speaker 1: on the horizon as being discussed here in West Virginia
Speaker 1: and exploring the media around the country, that's that's also
Speaker 1: a topic of concern. The West Virginia's constitution, I understand
Speaker 1: allows the judiciary to sit and control its own budget.
Speaker 1: Are there specific laws or rules that govern the judge's
Speaker 1: expenditures that you know? The West Virginia House of Delegates
Speaker 1: points to, Well, there's there is a civil law. Uh.
Speaker 1: The only one really cited specifically in the articles of
Speaker 1: impeachment is one that uh uh that allows the court
Speaker 1: to appoint retired judges to sit in places where they're needed,
Speaker 1: where there's a heavy caseload, there's illness of a judge,
Speaker 1: and that statute indicates that uh those um special especially
Speaker 1: appointed judges, should not be compensated more than sitting circuit
Speaker 1: court judges in the state. And apparently there have been
Speaker 1: instances where uh the Supreme Court has approved the employment
Speaker 1: of judges in certain uh circuits where they're cumulative income
Speaker 1: during a year um exceeds that of a sitting judge.
Speaker 1: That's it's not a criminal statute, but that's what cited
Speaker 1: in the articles of impeachment. Have is there a separation
Speaker 1: of powers problem here that and this may set a
Speaker 1: precedent in that area. Well, of course, there is uhh
Speaker 1: the ability of one branch of government to displaced the
Speaker 1: entire head of the judicial branches is a matter of concern,
Speaker 1: and of course, UM that is more likely to rise.
Speaker 1: I might say that it's really never these circumstances. Well,
Speaker 1: all the members of the court have been impeached, and impeached,
Speaker 1: by the way, doesn't mean conviction or removed from office.
Speaker 1: It's a quote of an indictment. That's that's never occurred
Speaker 1: in West Virginia or in the United States, so that
Speaker 1: that's unusual and it's unsettling, But it only occurs in
Speaker 1: a situation like this where the both the legislative branch
Speaker 1: and the governor's office is occupied by members of the
Speaker 1: same party. And I think historically you don't see this
Speaker 1: because UH in state legislatures, the members are cognizant of
Speaker 1: the impact of such a UH. Such a move would
Speaker 1: be on the integrity of the entire judicial system, and
Speaker 1: also the removal of all the judges would throw the
Speaker 1: West Virginia court system into disarray, with styusands of pending
Speaker 1: cases in the Supreme Court being the body that not
Speaker 1: only here's UH appeals from lower courts, but also administers
Speaker 1: a lower court system. So, Patrick, we have about a
Speaker 1: minute here. Does it seem as if this is going
Speaker 1: to go to the Senate. Will the republic is in
Speaker 1: the Senate be able to to vote for impeachment? Will
Speaker 1: this actually go through? I'm skeptical. Uh, the members of
Speaker 1: the House have made their point. Uh, there's not going
Speaker 1: to be excessive spending on renovations. Judges will will be um. Uh,
Speaker 1: cognizance of spending tax pay money that's really seen the
Speaker 1: many to be overkill. All right, Thanks so much, Patrick,
Speaker 1: that's Patrick McGinley, professor at the West Riginia University College
Speaker 1: of Law. Thanks for listening to the Bloomberg Law Podcast.
Speaker 1: You can subscribe and listen to the show on Apple Podcasts, SoundCloud,
Speaker 1: and on bloomberg dot com slash podcast. I'm June Brosso.
Speaker 1: This is Bloomberg