Speaker 1: This is Bloomberg Law with June Brussel from Bloomberg Radio.
Speaker 1: It's a totally false accusation. I have absolutely no idea,
Speaker 1: which is there's some picture where we're shaking hands. It
Speaker 1: looks like at some kind of it. That was former
Speaker 1: President Donald Trump in June of denying advice columnist E
Speaker 1: Jean Carol's claims that he raped her in a dressing
Speaker 1: room in a New York department store in the nineteen nineties.
Speaker 1: Carol has sued Trump for defamation, and that suit is
Speaker 1: scheduled for trial in April. In the meantime, Trump sworn
Speaker 1: testimony was taken on October nineteenth that Mara Lago and
Speaker 1: parts of that deposition have been unsealed, joining me as
Speaker 1: Bloomberg Legal reporter Eric Larson. So, Eric, why did the
Speaker 1: judge unseal the deposition? Well, this was just an excerpt
Speaker 1: of the deposition that was actually on steel and there
Speaker 1: was it was unstealed by the judge because it was included.
Speaker 1: This portion of it was included in one of A.
Speaker 1: Gene Carroll's filings and the defamation and battery case that
Speaker 1: she filed against him. She was trying to argue that
Speaker 1: you know, they didn't really need more discovery in this
Speaker 1: case because Trump had already been questioned extensively about the
Speaker 1: alleged rapes that occurred and the defamation. So they're arguing
Speaker 1: that they need to wrap up discovery move on. And
Speaker 1: their their evidence for this was to say, hey, look
Speaker 1: at all this, all these questions that Trump already answered,
Speaker 1: and they argued that that needed to be made public
Speaker 1: under New York's rules. What struck me most about the
Speaker 1: excerpt is that Trump didn't hold back at all in
Speaker 1: the deposition. It seemed like he did everything that a
Speaker 1: lawyer would tell a client not to do. Yeah, it
Speaker 1: was definitely classic, you know Trump. It was kind of
Speaker 1: what you might expect him to sound like under oath
Speaker 1: in a case like this. You know, she didn't hold
Speaker 1: back and saying, for example, that he was not attracted
Speaker 1: to ee Gene Carol and and sort of trying to
Speaker 1: defend his statement as a usedly defamatory statement by the way,
Speaker 1: that she was not his type. And that's an argument
Speaker 1: that he made early on in two thousand nineteen, when
Speaker 1: he was trying to explain that he did not rape
Speaker 1: her um and claimed that he had never even met her,
Speaker 1: in no contact with her whatsoever, um, And he thought
Speaker 1: that it would be a good idea to say that
Speaker 1: she wasn't his type, to sort of bolster that argument. Um.
Speaker 1: And that has been one of several statements that Trump
Speaker 1: made that has been in the sort of the center
Speaker 1: of this defamation case. And he was asked about that
Speaker 1: sort of extensively in this deposition and explained in every
Speaker 1: which way he could that he was not in any
Speaker 1: way possibly attracted her and never could be. He called
Speaker 1: the suit itself a big fat hoax. And that's a
Speaker 1: word we've been hearing from him for many, many years.
Speaker 1: And Carol's lawyer called him on that. Yes, you know,
Speaker 1: she wanted to, I think make the points that Mr
Speaker 1: Trump sort of calls a lot of things hoaxes that
Speaker 1: in fact are real. So, for example, she asked him
Speaker 1: to explain, you know, why why he used the word
Speaker 1: hopes so often, and he sort of went into a
Speaker 1: long answer saying Russia, Russia, Russia, Ukraine, Ukraine, Ukraine, saying
Speaker 1: it was all a hope, um, the impeachment hoax, you know,
Speaker 1: Obama spying on his campaign hopes, all these hoaxes and
Speaker 1: eating Carroll's lawyer said, you know what about climate change,
Speaker 1: You said, that's a hoax, And he said, yes, that
Speaker 1: is a hoax for the most part, and went on
Speaker 1: to say how the environmental movement was a hoax, and
Speaker 1: so you know, made made a lot a lot of
Speaker 1: comments like that that she sort of wanted to illustrate. Well,
Speaker 1: maybe when you say hoax, maybe it's not actually a hope.
Speaker 1: But you know, his transcripts or speaks for itself. There
Speaker 1: was his lawyer there to caution him or give him advice.
Speaker 1: His lawyer was there. Lenahaba was there. She objected, you
Speaker 1: know here there too, some of the questions that were
Speaker 1: asked with a way they were asked, But there wasn't
Speaker 1: any indication on the transcript that she was interrupting her
Speaker 1: client to get him to say or not saying anything.
Speaker 1: So um, he was definitely very very un filtered. You know,
Speaker 1: that's whether or not a jury would make anything of this.
Speaker 1: You know, who knows. I mean, just because Trump has
Speaker 1: called a lot of things hoaxes doesn't automatically mean that
Speaker 1: eg and kills cases. It's true, and it's just something
Speaker 1: that the jury will take into accounts when they're weighing
Speaker 1: these allegations in the defense, so as far as the
Speaker 1: alleged attack, which he denies. He was also asked, have
Speaker 1: you ever kissed a woman without her consent? And he
Speaker 1: got aggravated with the attorney at that point. Yeah. It's
Speaker 1: hard to tell exactly what his tone was, but he did.
Speaker 1: He said that he, uh, you know, he kind of
Speaker 1: thought about it for a Minute's like, I don't think
Speaker 1: I've had any complaints about that, except maybe from your
Speaker 1: client who is a liar or something to that effect.
Speaker 1: You know. Then Kills lawyer asked him as well, you know,
Speaker 1: do you know what sexual harassment means? Um, And his
Speaker 1: response was yeah, pretty much. That's actually where that particular
Speaker 1: excerpt of the transcript cut off. But yeah, he he
Speaker 1: was asked a lot of details about his behavior with women. Um.
Speaker 1: He denied it, except to say that anyone who claims
Speaker 1: otherwise is lying. And it's worth noting that in this case,
Speaker 1: Kills lawyers have already deposed two women who previously accused
Speaker 1: Trump of sexual assault to sort of bolster their argument
Speaker 1: that Mr Trump has this pattern of behavior. So we
Speaker 1: haven't seen those depositions yet, but I'm sure that they
Speaker 1: will be used if the case goes to trial. Even
Speaker 1: when he seems to get caught in apparent inconsistency, he
Speaker 1: tries to go around it, which is something we've seen before.
Speaker 1: He ended up calling Carol's publisher radical left leaning. Yeah,
Speaker 1: he did. You know, Kill's lawyer as him about some
Speaker 1: of his remarks that he had made publicly that were
Speaker 1: in the case, you know, accusing Carroll of making these
Speaker 1: false allegations to try to sell a book that she
Speaker 1: had written into that of the nineteen and he had
Speaker 1: made some comments about her publisher being radical and left leaning.
Speaker 1: He was asked about that, and it was pointed out
Speaker 1: to him that the publisher, HarperCollins Um, actually published his
Speaker 1: son in law, Jared Kushner's book Um, and Trump's response was, well,
Speaker 1: it could be that they published from very bad ones too,
Speaker 1: So he was sort of called out on an inconsistency
Speaker 1: there and just sort of brushed it off. I know
Speaker 1: that Eegene, Carol said she saved the dress from the
Speaker 1: alleged encounter, and they want to do a DNA test
Speaker 1: on it. Has that test been done well? Actually, I
Speaker 1: think that they were doing a DNA test and had
Speaker 1: found some some samples of human DNA, whether it's hair
Speaker 1: or things like that, and just wanted to try to
Speaker 1: get actually a swab of Trump's you know, cheek or
Speaker 1: something like that inside of his cheek to get a
Speaker 1: DNA test to compare it to. My understanding is that
Speaker 1: has not happened, and that it may not happen. I
Speaker 1: believe at one point Ms Carroll's lawyer had said that
Speaker 1: she was sort of willing to drop that just to
Speaker 1: get things moving along. And frankly, I do think that
Speaker 1: she has said she she believes she has such a
Speaker 1: strong case without it that she does not, um, you know,
Speaker 1: need it. But I do not believe that that test
Speaker 1: has ever been done. Wow, that that is a surprise.
Speaker 1: There's a question of whether this suit can even go
Speaker 1: forward because he claims he made the remarks in the
Speaker 1: course of his duty as president. So tell us about
Speaker 1: DC's highest court hearing that, right, Yeah, So we're waiting
Speaker 1: for a decision from the highest local court in DC,
Speaker 1: the District of Columbia Court of Appeals, which is basically
Speaker 1: looking at this a narrow sort of employment law question, um,
Speaker 1: before this case can move forward in federal court in
Speaker 1: New York. So there's a federal law called the west
Speaker 1: Ball Act that protects all government employees from civil suits
Speaker 1: related to their jobs. So Trump is arguing, and in fact,
Speaker 1: the d o J backs his argument here that his
Speaker 1: denial of miss Kell's claims in two thousand nineteen qualified
Speaker 1: as a president Joel duty that he was actually just
Speaker 1: responding to reporter's questions about her allegations, and that was
Speaker 1: it that he needed to maintain Americans faith in the
Speaker 1: White House, and that denying these allegations was just part
Speaker 1: of doing that. Ms Carroll argued that Mr Trump was
Speaker 1: just looking out for himself, that the things that he
Speaker 1: accused her of fabricating the attack, trying to sell a book,
Speaker 1: sort of conspiring with Democrats to politically hurt him, and
Speaker 1: claiming falsely that she had accused the other men of
Speaker 1: similar things. All these claims, she said, that goes too far.
Speaker 1: You were defaming me. That's not part of your job.
Speaker 1: But the DC Local Court, the DC Court of Appeals,
Speaker 1: will decide on this narrow issue of whether those statements
Speaker 1: that Trump made qualified as part of his job under
Speaker 1: local employment law, and if they rule against him, then
Speaker 1: the case will be allowed to move forward to trial
Speaker 1: in April and federal court in Manhattan. If they rule
Speaker 1: in favor of Trump, then the case essentially ends here
Speaker 1: because of that federal law. But surprise, surprise, Trump has
Speaker 1: heated his claims on truth social after he left the presidency. Yes,
Speaker 1: now that's definitely a bit more problematic here for the
Speaker 1: president because Miss Carroll is, I think a lot of
Speaker 1: people have heard, just a few months ago, filed a
Speaker 1: new lawsuit against Mr Trump accusing him of battery essentially
Speaker 1: the rape allegation under a new New York law that
Speaker 1: has temporarily lifted the statutes of limitations on these historical
Speaker 1: assault claims for one year. So she's one of many
Speaker 1: women who are filing battery or rape or sexual assault
Speaker 1: lawsuits against people. Trump was one of the first people
Speaker 1: sued under that law. So we still have that civil
Speaker 1: lawsuit accusing him a battery, and that lawsuit includes a
Speaker 1: new claim of defamation over that truth social statement. So
Speaker 1: even if he's able to avoid this earlier lawsuit because
Speaker 1: he was president at the time, he'll still have this
Speaker 1: other lawsuit moving forward. And if in fact both cases
Speaker 1: moved forward, Miss Carroll is trying to combine them for
Speaker 1: a joint trial, so that will all be her together.
Speaker 1: Trump tried to have that suit under the New York
Speaker 1: Sexual Assault Law dismissed. What were his claims? What was
Speaker 1: his reasoning? So? Mr Trump argued that the battery lawsuit
Speaker 1: filed under the New York Adult Survivor's Act violated his
Speaker 1: constitutional rights under the New York State Constitution by depriving
Speaker 1: him of his due process right, essentially making it. You know,
Speaker 1: he's being accused of claims that are too difficult to
Speaker 1: refute because of their old claims, the witnesses, the evidence,
Speaker 1: everything is so outdated, Um, according to him, And you know,
Speaker 1: this is an argument we can probably expect to see
Speaker 1: a lot in a lot of these cases that have
Speaker 1: been filed under the Adult Survivor's Act. Just so happens
Speaker 1: that his is one of the first. But in this case,
Speaker 1: the judge denied the motion to dismiss um and has
Speaker 1: allowed the case to move forward. The judge said that
Speaker 1: he Mr Trump could not question, um, you know what
Speaker 1: the legislature's and tensions were when they passed this law.
Speaker 1: Umpuld argued that they hadn't pointed to a specific injustice
Speaker 1: to justify lifting the statute of limitations and the and
Speaker 1: the judge disagreed that that was not true, and he
Speaker 1: used pretty harsh words actually, um to get an indication
Speaker 1: of what the justice system or the judicial system might
Speaker 1: think of of lawsuits challenging or claims challenging this law.
Speaker 1: This particular judge said that it was lawfully passed and
Speaker 1: that the arguments against it were pretty weak. I'm wondering
Speaker 1: if Trump is going to argue that this it will
Speaker 1: interfere with his campaign and should be done after the election.
Speaker 1: I don't think that that is probably going to work out,
Speaker 1: just based on what some of these these judges have
Speaker 1: been saying. The first defamation case on nineteen that is
Speaker 1: already set to go to trial in April, I think
Speaker 1: April eleventh, and that has already been set and is
Speaker 1: sort of written in stone. Whether or not there later
Speaker 1: the battery cases combined with it, that might mean that
Speaker 1: it needs to be delay eight or maybe it'll happen
Speaker 1: in April. But you know, he's already Trump and his
Speaker 1: grievous adult children and his company are also going to
Speaker 1: trial in October, and the New York Attorney General's fraud
Speaker 1: case against the company, and then in early there's another
Speaker 1: trial some investors who sued Trump and his his kids
Speaker 1: and his company for fraud over a multilevel marketing company
Speaker 1: that they've promoted on The Celebrity Apprentice. That's another sort
Speaker 1: of big trial that's going to happen in early So
Speaker 1: these judges are setting these these trials knowing that Trump
Speaker 1: is running for president again and with the idea that
Speaker 1: they can be wrapped up before he really has the campaign.
Speaker 1: But of course that's just sort of a tip of
Speaker 1: the iceberg for some of his legal troubles as that happens. Yeah,
Speaker 1: I'm so curious. I'd love to know how many lawyers
Speaker 1: he's employing at once to fight all these civil lawsuits
Speaker 1: and the possible criminal cases. It must be quite a few. Okay,
Speaker 1: I want to change topics now to another case. You've
Speaker 1: and writing about Huncle con Win and come Real Farms,
Speaker 1: but don't know where on Hennon. That's former tech entrepreneur
Speaker 1: Heather Morgan, a rapper who dubbed herself on social media
Speaker 1: and in music videos as the Crocodile of Wall Street.
Speaker 1: She's also an accused cryptocurrency thief facing trial with her husband.
Speaker 1: They're accused of trying to launder four point five billion
Speaker 1: dollars of bitcoin stolen from the bitf Next currency exchange,
Speaker 1: and despite being under house arrest, she's got a new
Speaker 1: job at a tech company and a dispensation from the
Speaker 1: judge and the government to commute to it. Eric tell
Speaker 1: us a little about Morgan. Heather Morgan and her husband
Speaker 1: Sein were arrested last February and charged with money laundering
Speaker 1: scheme involving four and a half billion dollars of bitcoin
Speaker 1: at least that was the value of it then stolen
Speaker 1: from the bits and Next currency exchange. So they've denied wrongdoing.
Speaker 1: You've been under house arrest and miss Morgan, you know,
Speaker 1: as you mentioned, she filed herself as a rapper. She's
Speaker 1: a former tech entrepreneur, but she used the rapper name Razzlecan,
Speaker 1: and you know, went a little bit viral on social media,
Speaker 1: that's sort of thing, and with some of the videos
Speaker 1: that she would make and what she called herself the
Speaker 1: crocodile of Wall streets. So she has been under twenty
Speaker 1: fur home confinement for quite a while now, and some
Speaker 1: of their hearings are frequently delayed because they seem to
Speaker 1: be in some sort of potential plea deals. The government
Speaker 1: has said they're trying to resolve the case without a trial.
Speaker 1: She and her husband are facing something like twenty years
Speaker 1: in prison. So what happened? Her lawyer filed a letter
Speaker 1: with the magistrate judge in Federal Court in Washington asking
Speaker 1: to have the terms of her confinement modified so that
Speaker 1: she can leave on Monday's, Wednesdays and Fridays to go
Speaker 1: to New York City and work at the offices of
Speaker 1: her new employer, which was not named in the document,
Speaker 1: but she said that she would be a working in
Speaker 1: a role as a growth marketing and business development specialists,
Speaker 1: and they asked to keep the name of the employer's
Speaker 1: secret because of harassment that she had received on social
Speaker 1: media as a result of intense media coverage of the case.
Speaker 1: So we don't know what company this is. We really
Speaker 1: don't know anything other than that. But the government notably
Speaker 1: did not object to this, and the judge granted the
Speaker 1: requests the same day, and really surprised the government didn't
Speaker 1: object to this because they previously said that the couple
Speaker 1: had highly troubling overseas ties and fraudulent identities, as well
Speaker 1: as access to hundreds of millions of dollars in cryptocurrency.
Speaker 1: And when they were arrested, the government initially asked the
Speaker 1: judge not to allow them to be released on bail
Speaker 1: because they were a flight risk. Correct. And also the
Speaker 1: government has said as recently as November, I believe that
Speaker 1: the case, as they continue to prepare for trial, regardless
Speaker 1: of whatever PLA talks may be happening, that the case
Speaker 1: is going to involve potentially very sent It is national
Speaker 1: security evidence, so they had to get a special order
Speaker 1: to only show the defense, you know, a summary of
Speaker 1: some of their evidence because it was too sensitive and
Speaker 1: classified to show to someone who didn't have that clearance.
Speaker 1: So there's a national security angle to this case too,
Speaker 1: which makes it even more interesting. But I feel like
Speaker 1: one way or another, we're eventually going to get some
Speaker 1: more information that maybe makes some of this makes sense.
Speaker 1: But yeah, the government does not seem to have a
Speaker 1: problem with this particular defendant charged in a serious crime
Speaker 1: going to work for a technology company and going into
Speaker 1: the city to be there in person. Maybe we'll learn
Speaker 1: more at the status conference set for next Friday, unless
Speaker 1: they delay that as well. Thanks so much, Eric, that's
Speaker 1: Bloomberg Legal reporter Eric Larson. It's a case with a
Speaker 1: legal economic and political ramifications, and it will be up
Speaker 1: to the Supreme Court to decide whether the United States
Speaker 1: can bring criminal charges against Turk state owned halk Bank
Speaker 1: over allegations that helped Ran to evade economic sanctions by
Speaker 1: laundering billions in oil and gas revenues. I think it's
Speaker 1: pretty bizarre for this court to tell the President of
Speaker 1: the United States, as a matter of his national security exercise,
Speaker 1: that even though the Constitution doesn't prohibit what you're doing,
Speaker 1: even though a statute doesn't prohibit what you're doing, this
Speaker 1: Court is going to prohibit your exercise of national security authority.
Speaker 1: That talk about big steps, it is that's huge. Other
Speaker 1: justices were concerned about whether allowing the federal prosecution to
Speaker 1: proceed might open the door to US states targeting foreign
Speaker 1: nations as well. Here are Justices Neil Gorsch and Sonya
Speaker 1: So to mayor, then states would be free to try
Speaker 1: to bring lawsuits against Mexico for this or that, or
Speaker 1: perhaps China because of COVID or Who knows what a
Speaker 1: creative state prosecutor might come up with. I don't know
Speaker 1: how um I would want to leave to the vagrancies
Speaker 1: of individual prosecutors. Whether it's federal or state the right
Speaker 1: to insult another nation by giving them this unbridled power
Speaker 1: to initiate suits joining me is constitutional law expert Harold Crant,
Speaker 1: a professor at the Chicago Kent College of Law. I'll
Speaker 1: explain the main issue here these two is whether they're
Speaker 1: either state or federal courts. In this case, of federal
Speaker 1: court can try a instrumentality of a foreign government for
Speaker 1: criminal offense. And on the First Crimes Act that we
Speaker 1: enacted after our nation was instituted, we had the courtet
Speaker 1: cognizance of all offenses against the United States, and so
Speaker 1: that would seem to suggest that foreign powers foreign corporations
Speaker 1: were included within that jurisdiction prevision. But at international common law,
Speaker 1: federal instrumentalities and federal states were rarely included in those
Speaker 1: kinds of criminal cases. So the question is whether that
Speaker 1: original granted jurisdiction or subsequently under the Foreign severn the
Speaker 1: Immunity Act, has Congress decided either yes or no to
Speaker 1: allow criminal prosecutions against foreign entities or foreign states. All
Speaker 1: Banks attorneys said, the world has been around for like
Speaker 1: seven thousand years and no country has ever tried another country.
Speaker 1: But hasn't the US sued foreign owned corporations. They have,
Speaker 1: There have been several proceedings, but there haven't been many
Speaker 1: and or all argument. It was clear that there was
Speaker 1: only a handful that could be counted really two or
Speaker 1: forty years of our nation's history. There was a discussion
Speaker 1: of several examples where the US had brought criminal prosecution
Speaker 1: against foreignown entities, principally of Chinese and state owned enterprises.
Speaker 1: There are many places in the world where such prosecutions
Speaker 1: are not from the IT and there is sort of
Speaker 1: a common law notion that foreign entities and closely held
Speaker 1: foreign corporations should not be subject to criminal suits. Now,
Speaker 1: foreign officers of those corporations can be subject to criminal suits,
Speaker 1: but not the corporations themselves. Back the common law the rule.
Speaker 1: In this case, both President Trump and President Biden decided
Speaker 1: not to go against individual officers of Health Bank the
Speaker 1: Turkish Bank, instead to go after the bank itself, because
Speaker 1: it was important to set a standard and to prosecute
Speaker 1: the Turkish Bank itself for its efforts to help circumvent
Speaker 1: the stations against Iran. One of the concerns, probably an
Speaker 1: obvious concern of the justices was usurping the power of
Speaker 1: the president to make national security decisions. It there was
Speaker 1: an anomaly that was discussed at or larguments. On the
Speaker 1: one hand, shouldn't be administrations of Trump and Biden, no best,
Speaker 1: what's in the foreign diplomatic interests of the United States?
Speaker 1: And why should it be to the course to decide
Speaker 1: that such prosecutions are not contemplated by Congress. On the
Speaker 1: other hand, if the position of the its government is
Speaker 1: to be followed, that would allow prosecutions of foreign owned
Speaker 1: entities in state court, and that would be a cummersome
Speaker 1: embarrassment that state prosecutors could initiate charges and that the
Speaker 1: federal government could not easily intervene to stop those prosecutions
Speaker 1: and wouldn't get disrupt diplomatic relations. Justice Elena Kagan asked
Speaker 1: about news reports that came out about the Trump administration
Speaker 1: at one point allegedly pressuring the Southern District to drop
Speaker 1: the case. Is there a question here about the power
Speaker 1: of the executive branch to quash cases that affect international
Speaker 1: relations or was that just one point she made? There
Speaker 1: was a lot of discussions or oral argument about what
Speaker 1: steps president could take if a U S Attorney in
Speaker 1: some district went ahead with a prosecution that would embarrass
Speaker 1: the diplomatic efforts of the government and the Representative Social
Speaker 1: General's office with a little kg in history answer those
Speaker 1: questions saying that there was informal mechanisms, there's discussion, there's
Speaker 1: always good faith, but he could point to no concrete
Speaker 1: way that the President could stop a U. S. Attorney
Speaker 1: from bringing such a suit other than possibly a public
Speaker 1: threat to fire the U. S. Attorney for taking steps
Speaker 1: against the interests of the United States. And which way
Speaker 1: do you think the statutory interpretation leads. There's a very
Speaker 1: complicated satutory interpretations questions, because at the first point, the
Speaker 1: seventeen Statutes seems to have no limitation all in terms
Speaker 1: of prosecutions of foreign loan entities, and the Foreign stron
Speaker 1: Communities Act seems to talk only about civil actions and
Speaker 1: not really about criminal actions at all. So much of
Speaker 1: the time the oral argument was just trying to figure
Speaker 1: out what to do about these open ended satutory terms
Speaker 1: that didn't seem quite to fit together. But in terms
Speaker 1: of the policy concerns, the twin acts I think of
Speaker 1: concern were one is why should the courts be stepping
Speaker 1: in and saying this is a bad idea to allow
Speaker 1: prosecutions of foreign own entities when it's really in the
Speaker 1: control of the executive branch, which is the expert in diplomacy.
Speaker 1: But on the other hand, because of the absence of
Speaker 1: a congressional admonition to states not to bring prosecutions against
Speaker 1: foreign own entities or whether it's suit to be done
Speaker 1: about that, and I think at the end of the day,
Speaker 1: there's no good answer to those problems. Congress hasn't done
Speaker 1: a great job here. Cons clearly did not focus on
Speaker 1: the issue, and so the court is going to come
Speaker 1: up with some kind of coalition. I think that might
Speaker 1: send this case back to the Second Circuit to try
Speaker 1: one more time to figure out what to do with
Speaker 1: this bank, or at least to make a more clear
Speaker 1: definition of what kind of state owned enterprises could be
Speaker 1: prosecuted and what kind cannot, and what nexus of their
Speaker 1: activities to the jurisdiction United States is required before the
Speaker 1: prosecution can perceive. One possibility for a reman would be
Speaker 1: for the Second circu It to determine whether any kind
Speaker 1: of international common law norm against criminal prosecutions of foreign
Speaker 1: entities can be led into the seventeen statute. Isn't that
Speaker 1: just kicking the can down the road, because after the
Speaker 1: second circuit makes another determination, it's going to come right
Speaker 1: back to the Supreme Court. It might this case might
Speaker 1: not be done. But the difficulty concertain which way. Various
Speaker 1: members of the courts were leading stuff that they were
Speaker 1: all troubled and they were not particularly satisfied with responses
Speaker 1: from either of the advocates today, and it's a difficult
Speaker 1: issue because Congress has not been clear, so I'm not
Speaker 1: sure that there's going to be an easy resolution. The
Speaker 1: easiest revolution would be for the Court to say either
Speaker 1: falt prosecutions are permitted under the SEV Statute, or they
Speaker 1: might say that the Foreign Sovereignties Immunity Act in the
Speaker 1: seventies has more clearly limited those kinds of cases and
Speaker 1: only will allow civil cases to be brought against for enterprises,
Speaker 1: which would leave the administration with the only possible response
Speaker 1: would be to go after members of the bank individually
Speaker 1: and press criminal charges against them. Answering this requires a
Speaker 1: complex analysis tell us about it. So the first step
Speaker 1: is whether the statute applies to foreign states as well
Speaker 1: as to foreign owned entities, or whether it's sort of
Speaker 1: a common law immunity principles should be read into it.
Speaker 1: That's the first step, and the second step is, no
Speaker 1: matter how you come out on the first step, did
Speaker 1: the Foreign Sovereigners Immunity Act change that at all? Because
Speaker 1: did it address the criminal context? And again the parties disagree.
Speaker 1: Then the third step is, even if you think that
Speaker 1: the Foreign sobealn Immunity Act applies, then did it still
Speaker 1: allow for this criminal exception with respect to with the
Speaker 1: commercial activities? And therefore you can continue with the criminal
Speaker 1: prosecution as long as you can show that the foreign
Speaker 1: actor was engaged in commercial activities that had a sufficient
Speaker 1: nexus to United States. The corporate court manufacture on those
Speaker 1: issues because some may think that the SEV Statute controls US,
Speaker 1: Others may think that the Foreign sovereignt Immuniact change what
Speaker 1: the import of the statute was, and others may think
Speaker 1: that even if the SEV Statute has been changed by
Speaker 1: the Foreign Sovereignty the Act, that the commercial exception in
Speaker 1: the Foreign Sovereignties Comuni Act may control as a second
Speaker 1: circuit in fact held, which would then lead to the
Speaker 1: possibility of the prostitution going forward. As the Roberts courts
Speaker 1: been careful about intervening in cases involving foreign affairs. The
Speaker 1: probign Courts has decided a number of cases with respect
Speaker 1: to foreign affairs that really shy about that kind of involvement.
Speaker 1: This case is a little different because the court comes
Speaker 1: at it only after the question has been decided by
Speaker 1: two administrations. And everybody says, look, this Congress itself to
Speaker 1: set the parameters for what prisons should do it and
Speaker 1: what kind of discretions they should exercise, and risks was
Speaker 1: open ended in the nine Statute under the Foreign sovereigns
Speaker 1: Muni Act. You can interpret it either way that Congress
Speaker 1: only wanted to allow civil actions to go forward and
Speaker 1: only then under particular exceptions, or whether Congress simply just
Speaker 1: didn't think about criminal prosecutions at all, because there's nothing
Speaker 1: specific about criminal prosecutions under the Floorn seven Meaniac. So
Speaker 1: both sides I think would be happy if Congress would
Speaker 1: get involved and set the stage. Thanks so much. How
Speaker 1: that's Professor Harold Crent of the Chicago Kent College of Law.
Speaker 1: And that's it for this edition of the Bloomberg Law Show.
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Speaker 1: Grosso and you're listening to Bloomberg