1 00:00:02,759 --> 00:00:07,480 Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio. 2 00:00:08,720 --> 00:00:11,480 Speaker 2: It took less than two weeks for the Trump Justice 3 00:00:11,480 --> 00:00:16,200 Speaker 2: Department to file its first antitrust lawsuit. The Department sued 4 00:00:16,239 --> 00:00:20,720 Speaker 2: to block Hewlett Packard Enterprise is fourteen billion dollar acquisition 5 00:00:20,840 --> 00:00:24,960 Speaker 2: of Juniper Networks, arguing that tie up with harm competition 6 00:00:25,079 --> 00:00:30,240 Speaker 2: in the market for enterprise wireless equipment used by large companies, universities, 7 00:00:30,240 --> 00:00:33,840 Speaker 2: and hospitals. In a complaint file Thursday in federal court 8 00:00:33,880 --> 00:00:37,640 Speaker 2: in California, the US said the deal would consolidate the 9 00:00:37,680 --> 00:00:42,280 Speaker 2: sector down from three major players HPE, Juniper, and Cisco 10 00:00:42,400 --> 00:00:46,159 Speaker 2: Systems down to two that would control seventy percent of 11 00:00:46,200 --> 00:00:51,120 Speaker 2: the market. But HPE CEO Antonio Neery told Bloomberg that 12 00:00:51,200 --> 00:00:53,440 Speaker 2: the DOJ's reasoning is flawed. 13 00:00:54,040 --> 00:00:56,800 Speaker 3: We believe there is no case here. This is pro competitive. 14 00:00:57,200 --> 00:01:01,640 Speaker 3: We'll bring it two complementary technologies together, which also will 15 00:01:01,760 --> 00:01:04,600 Speaker 3: enable us to compete outside the United States in the 16 00:01:04,640 --> 00:01:07,880 Speaker 3: context of the previous competition we have with josh against 17 00:01:07,959 --> 00:01:11,520 Speaker 3: the Chinese vendors. In the context of national security, particularly 18 00:01:11,520 --> 00:01:14,160 Speaker 3: in cloud and the service provider space. 19 00:01:14,600 --> 00:01:17,600 Speaker 2: Joining me is anti trust expert Harry First, a professor 20 00:01:17,600 --> 00:01:22,640 Speaker 2: at NYU Law School, Harry Many expected the Trump administration 21 00:01:22,880 --> 00:01:26,200 Speaker 2: to sort of ease up on the aggressive anti trust 22 00:01:26,360 --> 00:01:30,399 Speaker 2: enforcement by the Biden administration. Is it a surprise that 23 00:01:30,480 --> 00:01:32,920 Speaker 2: they brought an anti trust lawsuit so soon? 24 00:01:33,600 --> 00:01:37,200 Speaker 4: Oh, it's a surprise, yes, that they didn't wait for 25 00:01:37,240 --> 00:01:40,200 Speaker 4: the new team really to be in place. And the 26 00:01:40,280 --> 00:01:45,119 Speaker 4: complaint is very much a Biden administration type complaint. It's 27 00:01:45,160 --> 00:01:49,760 Speaker 4: written like and refers to the merger guidelines that were 28 00:01:49,800 --> 00:01:54,440 Speaker 4: adopted during the Biden administration. So it's curious. I don't know. 29 00:01:54,480 --> 00:01:58,360 Speaker 4: Maybe they're acting Assistant Attorney General just never got the memo, 30 00:01:58,480 --> 00:02:03,720 Speaker 4: doesn't read his emails. I can't quite explain why they 31 00:02:03,800 --> 00:02:06,840 Speaker 4: decided to go ahead with this unless there was some 32 00:02:07,040 --> 00:02:10,320 Speaker 4: time pressure on the deal, I'm not certain about that. 33 00:02:10,639 --> 00:02:15,280 Speaker 2: And they're also doing this big action before they actually 34 00:02:15,320 --> 00:02:19,680 Speaker 2: have someone in place as the top of the antitrust. 35 00:02:19,040 --> 00:02:24,280 Speaker 4: Division, right, So the complaint is signed by the acting 36 00:02:24,320 --> 00:02:28,840 Speaker 4: Assistant Attorney General who was put in place over the 37 00:02:28,880 --> 00:02:31,680 Speaker 4: person who would normally have been put in place for 38 00:02:31,960 --> 00:02:36,560 Speaker 4: this position. So the way it's gone, particularly in recent times, 39 00:02:36,680 --> 00:02:42,120 Speaker 4: is the most apolitical person in the division is appointed 40 00:02:42,160 --> 00:02:46,560 Speaker 4: as acting Usually it's the head of criminal Enforcement, which 41 00:02:46,600 --> 00:02:49,920 Speaker 4: is really a political is no one who says, oh, no, 42 00:02:50,000 --> 00:02:53,720 Speaker 4: we like cartels and we think they should flourish, so 43 00:02:54,480 --> 00:02:57,640 Speaker 4: enforcement against cartels. No one objects to that that I 44 00:02:57,760 --> 00:03:01,760 Speaker 4: know of. So the person who was head of Criminal 45 00:03:01,840 --> 00:03:07,480 Speaker 4: Enforcement was instead reassigned to I guess it's a homeland 46 00:03:07,919 --> 00:03:09,840 Speaker 4: security position, right. 47 00:03:10,160 --> 00:03:12,440 Speaker 2: Yeah, they're putting a lot of people in immigration. 48 00:03:12,400 --> 00:03:17,600 Speaker 4: An immigration unit, which of course is presumably something they 49 00:03:17,680 --> 00:03:20,560 Speaker 4: reassigned him to so that he would then leave the 50 00:03:20,639 --> 00:03:24,400 Speaker 4: same as Manish Kumar. Fine guy, I mean you know, 51 00:03:25,000 --> 00:03:27,640 Speaker 4: he couldn't have been on anybody's enemies list that I 52 00:03:27,680 --> 00:03:31,359 Speaker 4: can imagine, So they reassigned him to it's a sanctuary 53 00:03:31,440 --> 00:03:36,680 Speaker 4: city's task force. It's ridiculous to a waste of his talent. 54 00:03:36,880 --> 00:03:40,800 Speaker 4: And then they brought in this person who has just 55 00:03:40,840 --> 00:03:43,720 Speaker 4: been in the any Trust Division, just joined last year. 56 00:03:43,720 --> 00:03:46,240 Speaker 4: He'd been in the White House Counsel's Office in the 57 00:03:46,280 --> 00:03:50,240 Speaker 4: prior Trump administration, so they appointed him as acting head. 58 00:03:50,760 --> 00:03:54,240 Speaker 4: But why he decided to go ahead and sign this complaint, 59 00:03:54,280 --> 00:03:58,520 Speaker 4: I honestly do not know. And why he couldn't wait 60 00:03:58,600 --> 00:04:02,080 Speaker 4: for Gail Slater to be confirmed, which I assume she 61 00:04:02,160 --> 00:04:04,560 Speaker 4: will be to review it. So I don't know the 62 00:04:04,600 --> 00:04:05,280 Speaker 4: answer to that. 63 00:04:05,720 --> 00:04:10,160 Speaker 2: So, I mean, they're assigning environmental lawyers to that Sanctuary 64 00:04:10,320 --> 00:04:13,960 Speaker 2: Cities unit, whatever it is. But these people have expertise, 65 00:04:14,400 --> 00:04:17,039 Speaker 2: this guy, for example, in anti trust or environment and 66 00:04:17,080 --> 00:04:19,400 Speaker 2: they're setting them to a totally different. 67 00:04:19,560 --> 00:04:22,520 Speaker 4: Well, it's a political I mean, just the name of it. 68 00:04:22,720 --> 00:04:25,119 Speaker 4: I don't know for sure, but just the name of it. 69 00:04:25,120 --> 00:04:28,120 Speaker 4: It's something designed to I don't know, rub their noses 70 00:04:28,120 --> 00:04:30,840 Speaker 4: in it. It's a perversion of any good use of 71 00:04:30,920 --> 00:04:34,800 Speaker 4: talent and designed to humiliate them. I don't know, but 72 00:04:35,560 --> 00:04:38,640 Speaker 4: I was sort of shocked that they did that to Kumar. 73 00:04:39,080 --> 00:04:42,800 Speaker 4: It doesn't make sense, you know, in anybody's world. And 74 00:04:43,000 --> 00:04:45,479 Speaker 4: for all I know, he might have been more moderate 75 00:04:45,480 --> 00:04:47,159 Speaker 4: and said, you know, we should hold up and wait 76 00:04:47,240 --> 00:04:50,599 Speaker 4: for the new head of the division to be approved 77 00:04:50,640 --> 00:04:53,799 Speaker 4: by the Senate. So it's sort of a curious turn 78 00:04:54,080 --> 00:04:58,200 Speaker 4: of events that, you know, this complaint is the result. 79 00:04:58,680 --> 00:05:02,159 Speaker 4: Just explain what the deal is, okay, So roughly, so, 80 00:05:02,240 --> 00:05:05,160 Speaker 4: this is a deal that was announced in January of 81 00:05:05,200 --> 00:05:08,960 Speaker 4: twenty twenty four, so it's been sitting there for a 82 00:05:09,000 --> 00:05:14,960 Speaker 4: little while under investigation, and it involves the w land industry, 83 00:05:15,000 --> 00:05:20,720 Speaker 4: wireless local area network industry, but on the commercial scale, 84 00:05:20,440 --> 00:05:22,960 Speaker 4: not the routers that you and I have in our 85 00:05:23,040 --> 00:05:26,680 Speaker 4: houses that create this little local area network that we 86 00:05:26,760 --> 00:05:29,800 Speaker 4: can connect to wherever we are in the house. But 87 00:05:30,440 --> 00:05:37,679 Speaker 4: you know, for enterprises, universities, offices, big companies that need 88 00:05:37,720 --> 00:05:42,279 Speaker 4: to connect all their employees wirelessly wherever they're working to 89 00:05:42,560 --> 00:05:46,760 Speaker 4: some access point. So it's all the equipment necessary for 90 00:05:46,960 --> 00:05:52,240 Speaker 4: putting those wireless local area networks together. And Cisco is 91 00:05:52,360 --> 00:05:57,480 Speaker 4: the leader worldwide and in the United States apparently, and 92 00:05:57,839 --> 00:06:01,680 Speaker 4: according to the complaint, it's marked share is more than 93 00:06:01,760 --> 00:06:07,040 Speaker 4: twice what HPE Hewlett Packard Enterprises market share is. Hp 94 00:06:07,320 --> 00:06:11,760 Speaker 4: is second in the US market. And Juniper, the company 95 00:06:11,800 --> 00:06:15,800 Speaker 4: being acquired by HPE, it's not clear where they sit 96 00:06:15,880 --> 00:06:19,160 Speaker 4: in the market. The complaint doesn't say they're third, so 97 00:06:19,240 --> 00:06:22,240 Speaker 4: maybe they're not quite third in the market. Maybe they're 98 00:06:22,320 --> 00:06:25,279 Speaker 4: fourth or fifth, but I don't know. Their market shares 99 00:06:25,360 --> 00:06:28,520 Speaker 4: vary around the world in different markets, but they're smaller 100 00:06:28,560 --> 00:06:32,760 Speaker 4: than HPE, So Cisco's market shares more than twice what 101 00:06:33,040 --> 00:06:36,640 Speaker 4: HPEES is, so they really dominate the market and the 102 00:06:36,680 --> 00:06:40,239 Speaker 4: combined market share of the three firms. Now, the Justice 103 00:06:40,279 --> 00:06:45,839 Speaker 4: Department complaints says Will be more than seventy percent, so 104 00:06:45,920 --> 00:06:50,960 Speaker 4: a very concentrated market, and the increase in concentration, which 105 00:06:51,000 --> 00:06:57,280 Speaker 4: is a key figure for merger enforcement, is over the thresholds. 106 00:06:57,760 --> 00:07:03,640 Speaker 4: For highly concentrated market, there's a presumption that competition may 107 00:07:03,680 --> 00:07:08,640 Speaker 4: be substantially lessened in the future, So the market's highly concentrated, 108 00:07:08,680 --> 00:07:12,760 Speaker 4: it's over the thresholds. The increases over the thresholds, and again, 109 00:07:12,800 --> 00:07:17,000 Speaker 4: according to the twenty twenty three guidelines which the complaint sites, 110 00:07:17,200 --> 00:07:20,640 Speaker 4: that's presumed to violate the law. And that's sort of 111 00:07:20,680 --> 00:07:22,440 Speaker 4: the core of the case. 112 00:07:22,760 --> 00:07:25,560 Speaker 2: Will there be questions about market definition or anything like that, 113 00:07:25,720 --> 00:07:26,600 Speaker 2: or is it pretty. 114 00:07:26,360 --> 00:07:29,920 Speaker 4: Clear there are always questions about our definition because as 115 00:07:30,000 --> 00:07:33,440 Speaker 4: we know, this is what any trust lawyers love. And yes, 116 00:07:33,520 --> 00:07:37,320 Speaker 4: there will probably be some, but I'm not sure in 117 00:07:37,360 --> 00:07:40,120 Speaker 4: the end that that's going to be the thing that matters, 118 00:07:40,160 --> 00:07:43,080 Speaker 4: even though the parties will fight over it. What makes 119 00:07:43,080 --> 00:07:46,360 Speaker 4: the case more interesting is that this merger was cleared 120 00:07:46,720 --> 00:07:53,360 Speaker 4: by the European Commission and by the UK Competition Markets Authority, 121 00:07:53,400 --> 00:07:56,560 Speaker 4: the CMA, So both of them cleared this merger in 122 00:07:56,640 --> 00:08:01,080 Speaker 4: August finding really no problems, and had been the pattern 123 00:08:01,480 --> 00:08:06,000 Speaker 4: during the Biden administration, had generally been. All three of 124 00:08:06,040 --> 00:08:11,440 Speaker 4: those agencies were in agreement on most of the controversial mergers. 125 00:08:11,640 --> 00:08:14,600 Speaker 4: They were not out of step. They all agreed, even 126 00:08:14,840 --> 00:08:19,320 Speaker 4: ones that were controversial that they violated European law or 127 00:08:20,040 --> 00:08:22,520 Speaker 4: law in the United Kingdom or the United States. So 128 00:08:22,960 --> 00:08:26,680 Speaker 4: this is unusual in the sense that the US is 129 00:08:26,760 --> 00:08:29,720 Speaker 4: trying to block a merger that the other two just 130 00:08:29,720 --> 00:08:33,200 Speaker 4: didn't go any further with. They both issued reports saying, hey, 131 00:08:33,280 --> 00:08:33,760 Speaker 4: no problem. 132 00:08:34,320 --> 00:08:37,360 Speaker 2: What's gotten a lot of attention is a memo in 133 00:08:37,480 --> 00:08:42,720 Speaker 2: twenty twenty one from an HPE sales leader encouraging his 134 00:08:42,840 --> 00:08:48,800 Speaker 2: team to quote kill, missed, exclamation point, exclamation point, exclamation point, 135 00:08:48,880 --> 00:08:51,640 Speaker 2: and on and on. There were like forty exclamation points, 136 00:08:52,040 --> 00:08:55,360 Speaker 2: and missed was the name of Juniper's competing product. 137 00:08:55,960 --> 00:08:59,280 Speaker 4: We love those memos. Yeah, that's the kind of thing 138 00:08:59,320 --> 00:09:02,280 Speaker 4: when NHS obviously that they go, oh my god, we 139 00:09:02,400 --> 00:09:06,520 Speaker 4: cannot suppress those helse people. You know, they keep using 140 00:09:06,640 --> 00:09:10,760 Speaker 4: language that get us into trouble. And yes, that's featured 141 00:09:10,800 --> 00:09:14,280 Speaker 4: prominently in the complaint. Who wouldn't feature that prominently in 142 00:09:14,320 --> 00:09:17,720 Speaker 4: the complaint? But in a number of these cases, those 143 00:09:17,720 --> 00:09:22,360 Speaker 4: sorts of kill memos are often used where the conduct 144 00:09:22,600 --> 00:09:26,400 Speaker 4: is exclusionary. In other words, the idea it was, you know, 145 00:09:26,720 --> 00:09:29,160 Speaker 4: will cut off their air supply. This is back in 146 00:09:29,200 --> 00:09:32,840 Speaker 4: the old Microsoft case. They were in a browser war, 147 00:09:33,240 --> 00:09:35,880 Speaker 4: and that was the colorful language, but it was to 148 00:09:36,000 --> 00:09:38,760 Speaker 4: exclude them from the market. These memos are a little 149 00:09:38,800 --> 00:09:42,720 Speaker 4: different in the sense that he's telling his group to 150 00:09:42,840 --> 00:09:47,440 Speaker 4: really compete hard and win these contracts. So the more 151 00:09:47,480 --> 00:09:51,800 Speaker 4: specific parts, beyond the concentration in the market, is that 152 00:09:51,840 --> 00:09:55,640 Speaker 4: these are head to head competitors that often competed for 153 00:09:56,240 --> 00:10:00,319 Speaker 4: contracts with the same parties, the same buyers, and this 154 00:10:00,720 --> 00:10:04,040 Speaker 4: merger will eliminate that head to head competition that had 155 00:10:04,080 --> 00:10:07,679 Speaker 4: produced lower prices. So it's kill was not so much exclusionary, 156 00:10:08,000 --> 00:10:11,840 Speaker 4: you know, as in kill, but you know, fight hard. 157 00:10:11,880 --> 00:10:13,360 Speaker 4: However you want to look at it, and that's what 158 00:10:13,440 --> 00:10:16,280 Speaker 4: I think the defense will say. So what you're witnessing 159 00:10:16,480 --> 00:10:20,400 Speaker 4: is competition. So every time we have competition, you can't say, 160 00:10:20,440 --> 00:10:23,199 Speaker 4: oh my god, let's cry foul. This is what we want. 161 00:10:23,840 --> 00:10:27,160 Speaker 2: I mean, is there any doubt that consumers benefit from 162 00:10:27,200 --> 00:10:30,240 Speaker 2: having three players in the in the market rather. 163 00:10:30,080 --> 00:10:33,880 Speaker 4: Than two, Well, I'd be a little cautious about three 164 00:10:34,000 --> 00:10:38,319 Speaker 4: rather than two. The complaint doesn't say there aren't others, 165 00:10:38,559 --> 00:10:40,800 Speaker 4: and in fact, at one point the complaint says, there 166 00:10:40,840 --> 00:10:43,800 Speaker 4: are many suppliers, and if you look at the markets 167 00:10:43,840 --> 00:10:46,840 Speaker 4: described both in the UK and in Europe, they are 168 00:10:46,840 --> 00:10:52,439 Speaker 4: obviously more players, and so there are other sources of supply, 169 00:10:53,160 --> 00:10:56,640 Speaker 4: and so presumably they will argue, well, we are head 170 00:10:56,640 --> 00:10:59,160 Speaker 4: to head competitors, but we're also head to head competitors 171 00:10:59,160 --> 00:11:03,440 Speaker 4: with other supplies. And if now after the merger, the 172 00:11:03,559 --> 00:11:07,720 Speaker 4: new Hpe Juniper decides to try to raise its price, 173 00:11:08,080 --> 00:11:12,760 Speaker 4: customers will just switch to the other suppliers like Hey, Cisco, 174 00:11:13,040 --> 00:11:16,960 Speaker 4: which has defenty percent of the market, or other small suppliers. 175 00:11:17,000 --> 00:11:20,520 Speaker 4: Now one difference with and it's an interesting difference. The 176 00:11:20,840 --> 00:11:25,559 Speaker 4: complaint excludes Huawei, the Chinese supplier, on sort of obvious 177 00:11:25,600 --> 00:11:28,280 Speaker 4: grounds that the US has been trying to keep them 178 00:11:28,360 --> 00:11:32,280 Speaker 4: out of US markets and that will likely continue. That's 179 00:11:32,480 --> 00:11:35,200 Speaker 4: not the case in Europe, where they are you know, 180 00:11:35,280 --> 00:11:38,760 Speaker 4: they're not a big player, but they are a significant 181 00:11:38,880 --> 00:11:42,560 Speaker 4: enough player that they could constrain any effort to raise 182 00:11:42,600 --> 00:11:46,520 Speaker 4: price in Europe, but you know, not a competitive constraint 183 00:11:46,559 --> 00:11:48,600 Speaker 4: so much in the US. So in that sense, the 184 00:11:48,679 --> 00:11:52,040 Speaker 4: geographic market may be more in contention but it will 185 00:11:52,080 --> 00:11:55,720 Speaker 4: be hard to say that Huawei is an effective competitor today. 186 00:11:56,960 --> 00:12:01,800 Speaker 2: How are there any accommodations that HPE could reach with 187 00:12:01,880 --> 00:12:04,800 Speaker 2: the Justice Department to forward the merger? 188 00:12:05,840 --> 00:12:10,920 Speaker 4: Yeah, it would be some settlements that would restore competition, 189 00:12:11,080 --> 00:12:14,600 Speaker 4: or however it's put in horizontal mergers like this. I mean, 190 00:12:14,640 --> 00:12:18,360 Speaker 4: I don't know the business that well, but it's hard 191 00:12:18,360 --> 00:12:22,760 Speaker 4: to see exactly what the parties might agree to divest 192 00:12:23,080 --> 00:12:26,440 Speaker 4: that would affect the analysis of the merger. You know, 193 00:12:26,520 --> 00:12:31,959 Speaker 4: when there are retail outlets, like the Albertson's Kroger deal, 194 00:12:32,320 --> 00:12:36,760 Speaker 4: you could offer to divest the number of supermarkets, and 195 00:12:37,040 --> 00:12:40,000 Speaker 4: you know that becomes a point of contention. But this 196 00:12:40,040 --> 00:12:42,440 Speaker 4: doesn't seem to be that sort of market. So I 197 00:12:42,440 --> 00:12:45,839 Speaker 4: would be surprised if there's a deal here to be had. 198 00:12:46,679 --> 00:12:50,760 Speaker 4: So my senses there, they'll probably even after the new 199 00:12:51,000 --> 00:12:54,400 Speaker 4: head of any trust division is appointed that they'll probably 200 00:12:54,480 --> 00:12:57,640 Speaker 4: go ahead and litigate this merger. It'd be hard to 201 00:12:57,679 --> 00:13:01,439 Speaker 4: settle it, I mean, unless they decide to dismissed the complaint, 202 00:13:01,440 --> 00:13:03,560 Speaker 4: but that would look sort of weird since it was 203 00:13:03,600 --> 00:13:07,360 Speaker 4: this administration in a sense that filed it. 204 00:13:07,440 --> 00:13:09,439 Speaker 2: Does the government have a strong case. 205 00:13:09,160 --> 00:13:11,720 Speaker 4: Here, you think so in one sense, yes, if they 206 00:13:11,760 --> 00:13:14,520 Speaker 4: get a court that's willing to stick with the twenty 207 00:13:14,600 --> 00:13:19,840 Speaker 4: twenty three guidelines that emphasizes the highly concentrated market, increase 208 00:13:19,920 --> 00:13:24,240 Speaker 4: in concentration, creating a presumption and says, okay, it's up 209 00:13:24,240 --> 00:13:29,560 Speaker 4: to you, Hpe and Juniper to justify this merger, to 210 00:13:29,640 --> 00:13:33,400 Speaker 4: show why it will increase competition, what the pro competitive 211 00:13:33,400 --> 00:13:36,800 Speaker 4: effects are. So if they can convince a judge to 212 00:13:36,880 --> 00:13:41,199 Speaker 4: shift the burden over to the defendants to justify the deal, 213 00:13:41,640 --> 00:13:43,720 Speaker 4: then I think that's you know, they have a shot 214 00:13:43,760 --> 00:13:47,600 Speaker 4: at it. They obviously have some business documents that show 215 00:13:47,760 --> 00:13:51,760 Speaker 4: this head to head competition. I don't know whether they 216 00:13:51,880 --> 00:13:56,440 Speaker 4: have testimony from buyers of this equipment saying, oh my god, 217 00:13:56,480 --> 00:13:59,040 Speaker 4: we're afraid that prices are going to go up if 218 00:13:59,040 --> 00:14:02,040 Speaker 4: the deal goes through. So it would be helpful to 219 00:14:02,080 --> 00:14:05,760 Speaker 4: them if they have testimony like this. But it's possible 220 00:14:05,880 --> 00:14:08,840 Speaker 4: that they'll be able to convince a district court judge 221 00:14:09,080 --> 00:14:11,680 Speaker 4: to go ahead and stop the merger. But the reason 222 00:14:11,720 --> 00:14:15,680 Speaker 4: why I'm hesitant is that fictions and you know, the 223 00:14:15,679 --> 00:14:19,440 Speaker 4: theory that's being advanced, the head to head competition theory, 224 00:14:19,880 --> 00:14:23,280 Speaker 4: was pretty much sloughed off in both of those jurisdictions. 225 00:14:23,680 --> 00:14:28,680 Speaker 2: Business leaders thought that this administration would be more amenable 226 00:14:28,840 --> 00:14:32,720 Speaker 2: to deals involving tech companies, just more amenable to M 227 00:14:32,720 --> 00:14:34,920 Speaker 2: and A. Is it too soon to tell whether it 228 00:14:35,000 --> 00:14:38,200 Speaker 2: will be or whether it won't be with this one lawsuit. 229 00:14:38,400 --> 00:14:40,160 Speaker 4: You know, if I were advising any then I would 230 00:14:40,160 --> 00:14:44,680 Speaker 4: be hesitant to draw much, if anything, from this one case, 231 00:14:44,800 --> 00:14:47,640 Speaker 4: because the person who's going to make these decisions is 232 00:14:47,680 --> 00:14:51,400 Speaker 4: just not in place. And unless I had some intelligence 233 00:14:52,000 --> 00:14:56,160 Speaker 4: indicating that the acting head really was acting in a 234 00:14:56,200 --> 00:14:59,920 Speaker 4: way that he knew was consistent with what the income 235 00:15:00,200 --> 00:15:02,760 Speaker 4: had wanted, I would view this as a one off 236 00:15:02,840 --> 00:15:06,400 Speaker 4: and not make predictions of what the future might hold 237 00:15:06,520 --> 00:15:11,480 Speaker 4: either way. Actually, until we really see what the new 238 00:15:11,520 --> 00:15:15,080 Speaker 4: heads of the two agencies do with the twenty twenty 239 00:15:15,120 --> 00:15:18,600 Speaker 4: three merger guidelines, whether they pull them or not. 240 00:15:19,040 --> 00:15:22,240 Speaker 2: Do you know about the people who are nominated, what 241 00:15:22,320 --> 00:15:23,680 Speaker 2: their track record is. 242 00:15:24,080 --> 00:15:27,800 Speaker 4: I don't know them personally other than what I've read. 243 00:15:28,480 --> 00:15:32,800 Speaker 4: Cale Slater seems like an anti trust person. She doesn't 244 00:15:33,040 --> 00:15:37,080 Speaker 4: seem to be coming from some other weird spot with 245 00:15:37,160 --> 00:15:39,240 Speaker 4: a list of you know who I hate in the 246 00:15:39,280 --> 00:15:42,720 Speaker 4: anti trust world. So she seems like a normal anti 247 00:15:42,720 --> 00:15:45,720 Speaker 4: trust person, but it's hard to know how that's going 248 00:15:45,800 --> 00:15:48,800 Speaker 4: to work out in the specifics. Well, I'm a little 249 00:15:48,800 --> 00:15:51,760 Speaker 4: more concerned at the Federal Trade Commission because the new 250 00:15:51,840 --> 00:15:54,560 Speaker 4: chair of the Federal Trade Commission has seemed to have 251 00:15:54,600 --> 00:15:58,760 Speaker 4: gone all in on the Trump agenda in ways that 252 00:15:59,080 --> 00:16:02,000 Speaker 4: I haven't seen yet from the nominee at the Any 253 00:16:02,040 --> 00:16:05,320 Speaker 4: Trust Division. But then if I were the nominee there, 254 00:16:05,400 --> 00:16:08,760 Speaker 4: I would not say anything right now and wait to 255 00:16:08,800 --> 00:16:09,600 Speaker 4: be confirmed. 256 00:16:09,920 --> 00:16:12,480 Speaker 2: A lot to watch, Thanks so much, Harry. As always, 257 00:16:12,880 --> 00:16:16,800 Speaker 2: that's Professor Harry First of NYU Law School. As part 258 00:16:16,840 --> 00:16:20,800 Speaker 2: of President Trump's efforts to reshape the federal government at 259 00:16:20,840 --> 00:16:25,760 Speaker 2: breakneck speed, most federal employees got an email offering them 260 00:16:25,800 --> 00:16:29,560 Speaker 2: the chance to resign by February sixth and be paid 261 00:16:29,600 --> 00:16:35,160 Speaker 2: through September. Some lawmakers, like Democratic Senator Tim Kaine of Virginia, 262 00:16:35,360 --> 00:16:38,760 Speaker 2: warned workers that Trump does not have the authority to 263 00:16:38,840 --> 00:16:39,680 Speaker 2: make that offer. 264 00:16:40,640 --> 00:16:41,760 Speaker 5: Don't be fooled. 265 00:16:43,240 --> 00:16:47,120 Speaker 4: He's tricked hundreds of people with that offer. If you 266 00:16:47,240 --> 00:16:50,000 Speaker 4: accept that offer and resign, he'll stiff you, just like 267 00:16:50,040 --> 00:16:51,640 Speaker 4: he stiffed the contractors. 268 00:16:52,320 --> 00:16:55,840 Speaker 1: He doesn't have any authority to do this. Do not 269 00:16:56,120 --> 00:16:57,440 Speaker 1: be fooled by this guy. 270 00:16:58,080 --> 00:17:00,560 Speaker 2: My guest is Bernie Cone, editor of Lodge of the 271 00:17:00,600 --> 00:17:04,280 Speaker 2: Bloomberg Industry Group. Bernie tell us about these emails. 272 00:17:04,880 --> 00:17:10,120 Speaker 5: So, on Tuesday, January thirty first, there was an email 273 00:17:10,200 --> 00:17:14,080 Speaker 5: that went out from a brand new email address at 274 00:17:14,080 --> 00:17:17,720 Speaker 5: the Office of Personnel Management to more than two million 275 00:17:17,880 --> 00:17:21,440 Speaker 5: federal workers with the subject line fork in the Road. 276 00:17:22,000 --> 00:17:26,000 Speaker 5: Now that's key because that is, word for word, the 277 00:17:26,160 --> 00:17:30,160 Speaker 5: same subject line in the email that Elon Musk sent 278 00:17:30,240 --> 00:17:33,600 Speaker 5: out after taking over Twitter, right before he got rid 279 00:17:33,640 --> 00:17:36,320 Speaker 5: of eighty percent of the workforce there. So what this 280 00:17:36,640 --> 00:17:41,280 Speaker 5: was was an offer to resign with pay from your position, 281 00:17:41,720 --> 00:17:46,200 Speaker 5: with pay and benefits allegedly continuing through September thirty first. 282 00:17:46,320 --> 00:17:48,160 Speaker 5: And the deal was is that if you were going 283 00:17:48,200 --> 00:17:51,440 Speaker 5: to accept it, all you did was type the word 284 00:17:51,560 --> 00:17:54,679 Speaker 5: resign in the subject line in your reply email. 285 00:17:55,080 --> 00:17:57,800 Speaker 2: Tell us a little bit more about how it seems 286 00:17:57,840 --> 00:18:00,399 Speaker 2: to be similar to what happened at Twitter. 287 00:18:00,840 --> 00:18:04,600 Speaker 5: Well, it goes beyond the subject line. Of course. What 288 00:18:05,000 --> 00:18:08,399 Speaker 5: we did was we really took a look at the 289 00:18:08,600 --> 00:18:11,840 Speaker 5: promises that were in this email. And it is only 290 00:18:11,840 --> 00:18:15,280 Speaker 5: an email. There was no legal documentation with it. There 291 00:18:15,560 --> 00:18:19,400 Speaker 5: was nothing in fact for say you to sign or review, 292 00:18:19,840 --> 00:18:23,560 Speaker 5: and how that synced up with some of the promises 293 00:18:23,560 --> 00:18:27,760 Speaker 5: and the things that happened after Twitter sought to cut jobs. 294 00:18:28,440 --> 00:18:31,200 Speaker 5: And there are quite a number of lawsuits still going 295 00:18:31,240 --> 00:18:36,000 Speaker 5: on against Twitter over severance and related issues. And where 296 00:18:36,040 --> 00:18:39,800 Speaker 5: you get some interesting parallels is that people at Twitter 297 00:18:39,880 --> 00:18:43,600 Speaker 5: were promised severance if they resigned, and then over time 298 00:18:43,840 --> 00:18:46,640 Speaker 5: there were reasons concocted to fire a lot of them 299 00:18:46,680 --> 00:18:49,439 Speaker 5: for cause and make them ineligible for severance. And as 300 00:18:49,480 --> 00:18:52,840 Speaker 5: I said, those are lawsuits that are still going on. 301 00:18:53,320 --> 00:18:57,200 Speaker 5: There was another senior level person who was fired for 302 00:18:57,280 --> 00:19:00,560 Speaker 5: allegedly doing something with Trump's Twitter feed. We don't quite 303 00:19:00,560 --> 00:19:03,720 Speaker 5: know what that was. So what this tells you is 304 00:19:03,800 --> 00:19:07,280 Speaker 5: that there are certainly reasons to doubt that the deal 305 00:19:07,680 --> 00:19:09,280 Speaker 5: is what it's being presented to be. 306 00:19:10,040 --> 00:19:14,240 Speaker 2: Employment lawyers that you talked to, what did they suggest 307 00:19:14,480 --> 00:19:15,960 Speaker 2: for these workers. 308 00:19:16,040 --> 00:19:19,119 Speaker 5: Other than obviously it's an individual decision for you know, 309 00:19:19,160 --> 00:19:22,159 Speaker 5: more than more than two million people. But in terms 310 00:19:22,359 --> 00:19:25,679 Speaker 5: of trying to challenge this whole thing, the lawyers we 311 00:19:25,840 --> 00:19:28,679 Speaker 5: talked to said that people will have a better case 312 00:19:29,000 --> 00:19:32,280 Speaker 5: if they essentially don't respond and then wait to be 313 00:19:32,359 --> 00:19:36,880 Speaker 5: laid off. That sort of challenging this offer such as 314 00:19:36,880 --> 00:19:40,840 Speaker 5: it is, is not likely to get you anywhere, even 315 00:19:40,840 --> 00:19:43,520 Speaker 5: though there are some real questions as to whether it's 316 00:19:43,840 --> 00:19:48,520 Speaker 5: even legal to offer seven eight months of administrative leave, which 317 00:19:48,560 --> 00:19:50,520 Speaker 5: is what this offer pretends to be. 318 00:19:50,840 --> 00:19:52,560 Speaker 2: So why would that be a problem. 319 00:19:52,800 --> 00:19:55,639 Speaker 5: It's a problem because there was actually a federal rule 320 00:19:55,760 --> 00:19:59,600 Speaker 5: that became final only two weeks ago that makes very 321 00:19:59,640 --> 00:20:02,400 Speaker 5: clear that administrative leave can only be used for ten 322 00:20:02,520 --> 00:20:06,680 Speaker 5: working days per calendar year, and the offer that went 323 00:20:06,760 --> 00:20:10,800 Speaker 5: out via OPM last week says that people will be 324 00:20:10,960 --> 00:20:13,680 Speaker 5: on administrative leave through September thirtieth. 325 00:20:14,640 --> 00:20:18,919 Speaker 2: In Elon Musk's case, the Twitter case, there was a 326 00:20:18,960 --> 00:20:20,640 Speaker 2: proposed class action that. 327 00:20:20,680 --> 00:20:25,960 Speaker 6: Was dismissed right Essentially, what Musk was able to do 328 00:20:26,560 --> 00:20:28,720 Speaker 6: was to claim there was no such thing as a 329 00:20:28,760 --> 00:20:32,840 Speaker 6: Twitter severance plan, and he won, even though there was 330 00:20:32,880 --> 00:20:36,240 Speaker 6: a fair amount of documentation produced in which severance plans 331 00:20:36,280 --> 00:20:37,800 Speaker 6: were outlined and mentioned. 332 00:20:37,840 --> 00:20:40,359 Speaker 5: Now that case is on appeal at the Ninth Circuit 333 00:20:40,440 --> 00:20:44,240 Speaker 5: right now, but the district court decision right now prevails, 334 00:20:44,520 --> 00:20:45,040 Speaker 5: and there are. 335 00:20:44,960 --> 00:20:47,879 Speaker 2: Other suits by high level employees. 336 00:20:49,040 --> 00:20:52,240 Speaker 5: Correct. There are several different cases, really at least four 337 00:20:52,400 --> 00:20:55,320 Speaker 5: that sort of mattered to some of the issues at hand. 338 00:20:55,600 --> 00:20:59,520 Speaker 5: You have people that claim that essentially they were forced 339 00:20:59,520 --> 00:21:02,840 Speaker 5: to resign after deciding to stick around because they were 340 00:21:03,000 --> 00:21:06,919 Speaker 5: ordered to do illegal things. You have another group that 341 00:21:07,040 --> 00:21:11,040 Speaker 5: talks about having reasons concocted to terminate them for cause 342 00:21:11,320 --> 00:21:14,399 Speaker 5: because which they were never told what that cause was, 343 00:21:14,960 --> 00:21:17,719 Speaker 5: to deny them severance payments. At the very very end 344 00:21:17,720 --> 00:21:20,000 Speaker 5: of the period, you had this class action which you 345 00:21:20,160 --> 00:21:24,440 Speaker 5: just mentioned, which was for six thousand employees, which they 346 00:21:24,480 --> 00:21:28,680 Speaker 5: claim outlined a severance plan and that Twitter essentially renigged 347 00:21:28,680 --> 00:21:31,560 Speaker 5: on it gave them a fraction of what they say 348 00:21:31,600 --> 00:21:34,320 Speaker 5: they were owed. And then you have a separate one 349 00:21:34,320 --> 00:21:38,120 Speaker 5: which is personal to a Twitter senior official who claimed 350 00:21:38,160 --> 00:21:41,120 Speaker 5: that she was stripped of her severance because of something 351 00:21:41,200 --> 00:21:42,880 Speaker 5: involving Trump's Twitter account. 352 00:21:43,080 --> 00:21:45,040 Speaker 2: This is not a buyout. This is not what a 353 00:21:45,040 --> 00:21:46,000 Speaker 2: buyout looks. 354 00:21:45,800 --> 00:21:49,480 Speaker 5: Like exactly, And that's a really important distinction, especially since 355 00:21:49,520 --> 00:21:52,480 Speaker 5: that term has been used pretty liberally. This is not 356 00:21:52,720 --> 00:21:57,359 Speaker 5: a buyout offer. A buyout offer, you would get legal 357 00:21:57,440 --> 00:22:01,399 Speaker 5: paperwork which you would have a pretty decent amount of 358 00:22:01,440 --> 00:22:03,800 Speaker 5: time to assess. It might be thirty days, it might 359 00:22:03,840 --> 00:22:07,919 Speaker 5: be forty five days. It would very carefully outline the 360 00:22:08,080 --> 00:22:12,600 Speaker 5: terms in a binding way. It would have opt out clauses, 361 00:22:12,840 --> 00:22:15,639 Speaker 5: all of those kinds of things. And certainly, when I 362 00:22:15,680 --> 00:22:18,600 Speaker 5: was in the newspaper business, I saw multiple rounds of buyouts, 363 00:22:18,640 --> 00:22:21,520 Speaker 5: so I know what the paperwork looks like. Yes, this 364 00:22:21,560 --> 00:22:24,560 Speaker 5: is a deferred resignation. That was the term they used. 365 00:22:24,640 --> 00:22:28,120 Speaker 5: That's what this is. So then employees are being put 366 00:22:28,160 --> 00:22:31,600 Speaker 5: in the position of trying to figure out with really 367 00:22:31,640 --> 00:22:35,760 Speaker 5: no particularly legal backup, and with a very short time 368 00:22:35,880 --> 00:22:40,160 Speaker 5: for decision to decide, well, what is this really? Am 369 00:22:40,160 --> 00:22:43,040 Speaker 5: I really resigning right now on the spot? Are they 370 00:22:43,080 --> 00:22:45,480 Speaker 5: really going to pay me through September thirty gain? What 371 00:22:45,640 --> 00:22:49,320 Speaker 5: is there that finds them to actually pay me aside 372 00:22:49,440 --> 00:22:52,800 Speaker 5: some promise email? Those are pretty tough decisions to have 373 00:22:52,960 --> 00:22:54,879 Speaker 5: to day this kind of notice. 374 00:22:55,000 --> 00:22:57,240 Speaker 2: I don't think you even need a lawyer to tell 375 00:22:57,320 --> 00:23:01,960 Speaker 2: you that something's pfishient here. Thanks much, Bernie. That's Bernie Cone, 376 00:23:02,080 --> 00:23:06,040 Speaker 2: editor at large of the Bloomberg Industry Group. The Trump 377 00:23:06,080 --> 00:23:10,719 Speaker 2: administration fired a group of prosecutors involved in the January 378 00:23:10,840 --> 00:23:16,480 Speaker 2: sixth criminal cases on Friday. Now, thousands of FBI employees 379 00:23:16,760 --> 00:23:21,600 Speaker 2: who participated in investigations related to the January sixth riot 380 00:23:21,760 --> 00:23:26,040 Speaker 2: are being asked to complete in depth questionnaires about their involvement. 381 00:23:26,680 --> 00:23:31,480 Speaker 2: This as the Trump administration Justice Department weighs disciplinary actions 382 00:23:31,520 --> 00:23:35,280 Speaker 2: that could result in firings. Joining me is former Palm 383 00:23:35,320 --> 00:23:40,000 Speaker 2: Beach County State Attorney Dave Ehrenberg. The acting FBI Director 384 00:23:40,080 --> 00:23:43,800 Speaker 2: Brian Driscoll, in an email to all FBI employees, and 385 00:23:43,840 --> 00:23:46,160 Speaker 2: he said that the FBI was told to turnover by 386 00:23:46,200 --> 00:23:49,919 Speaker 2: Tuesday all current and former FBI staff who worked on 387 00:23:50,040 --> 00:23:54,080 Speaker 2: investigations or prosecutions related to the Capitol riot. He said 388 00:23:54,119 --> 00:23:57,880 Speaker 2: the request covered thousands of FBI employees around the country, 389 00:23:58,200 --> 00:23:59,040 Speaker 2: including him. 390 00:24:00,080 --> 00:24:02,359 Speaker 1: Knew it was going to get bad, and he said 391 00:24:02,440 --> 00:24:04,600 Speaker 1: that I will be your retribution. So we can't be 392 00:24:04,640 --> 00:24:07,680 Speaker 1: too surprised that he's going after the people who went 393 00:24:07,720 --> 00:24:11,399 Speaker 1: after him. But when it gets real like this, it 394 00:24:11,600 --> 00:24:16,000 Speaker 1: is quite a moment because we've never seen this before. 395 00:24:16,440 --> 00:24:20,280 Speaker 1: This is the weaponization of government. This is what the 396 00:24:20,320 --> 00:24:23,920 Speaker 1: other side keeps claiming that Joe Biden and Mary Garland 397 00:24:23,920 --> 00:24:26,720 Speaker 1: did weaponizing the Department of Justice. No, no, no, that 398 00:24:26,840 --> 00:24:32,320 Speaker 1: was projection. What they're doing is creating the DOJ as 399 00:24:32,600 --> 00:24:36,080 Speaker 1: the Donald Trump defense team, like his own law firm 400 00:24:36,480 --> 00:24:38,400 Speaker 1: and as part of his own law firm. He needs 401 00:24:38,440 --> 00:24:41,240 Speaker 1: investigators who are loyal to him. So that's what this 402 00:24:41,359 --> 00:24:44,679 Speaker 1: is about. And if you, especially if you worked against 403 00:24:44,800 --> 00:24:47,280 Speaker 1: him even though there was evidence, and they're just doing 404 00:24:47,359 --> 00:24:50,280 Speaker 1: their jobs and their career prosecutors and FBI agents who 405 00:24:50,320 --> 00:24:53,960 Speaker 1: have worked in multiple administrations, including Donald Trump's administration itself, 406 00:24:54,440 --> 00:24:55,879 Speaker 1: then you're the enemy. 407 00:24:56,720 --> 00:24:59,040 Speaker 2: I think that most of these top level people are 408 00:24:59,080 --> 00:25:01,000 Speaker 2: going to have an easy time I'm finding a job 409 00:25:01,000 --> 00:25:04,280 Speaker 2: in the private sector right with their experience, right. 410 00:25:04,320 --> 00:25:07,240 Speaker 1: But you know, as a former prospert myself and I 411 00:25:07,320 --> 00:25:10,960 Speaker 1: was a state attorney for twelve years, this is their passion. 412 00:25:11,000 --> 00:25:12,359 Speaker 1: This is what they want to do. They could have 413 00:25:12,359 --> 00:25:14,280 Speaker 1: always made more money in the private sector, but they 414 00:25:14,480 --> 00:25:17,760 Speaker 1: have a passion for justice and for just waking up 415 00:25:17,760 --> 00:25:19,679 Speaker 1: every day to try to do the right thing, to 416 00:25:19,720 --> 00:25:23,199 Speaker 1: stand up for victims of crime, and to hold wrongdoers accountable. 417 00:25:23,200 --> 00:25:27,879 Speaker 1: And now one of the wrongdoers is now the head guy, 418 00:25:28,040 --> 00:25:31,360 Speaker 1: and he is going after them for doing their jobs. 419 00:25:31,880 --> 00:25:35,879 Speaker 1: And so it is to them probably just like the 420 00:25:35,880 --> 00:25:39,800 Speaker 1: bizarre world where they get punished for doing the right thing, 421 00:25:40,040 --> 00:25:42,840 Speaker 1: for doing their jobs, and you got to believe in 422 00:25:43,200 --> 00:25:47,639 Speaker 1: They just think that at some point that this will 423 00:25:48,560 --> 00:25:51,560 Speaker 1: will be over that the bad guys don't win in 424 00:25:51,600 --> 00:25:53,960 Speaker 1: the end, at least not according to the to the 425 00:25:54,000 --> 00:25:57,160 Speaker 1: books that we read, the nursery rhymes and pro wrestling 426 00:25:57,240 --> 00:25:58,160 Speaker 1: and for wrestling. 427 00:25:58,400 --> 00:26:02,119 Speaker 2: What's happening is they're transferring a lot of these people, 428 00:26:02,119 --> 00:26:07,240 Speaker 2: for example, attorneys, attorneys that are handling environmental matters for years, 429 00:26:07,640 --> 00:26:11,080 Speaker 2: attorneys that are handling cartel matters, for example, in the 430 00:26:11,080 --> 00:26:15,760 Speaker 2: antitrust department, and they're sending them all to this Sanctuary's 431 00:26:15,880 --> 00:26:19,440 Speaker 2: City team. But what's happening is a lot of them 432 00:26:19,640 --> 00:26:23,560 Speaker 2: are resigning rather than go into the Sanctuary Cities team. 433 00:26:23,640 --> 00:26:25,919 Speaker 2: So it's a way to get them to resign without 434 00:26:26,440 --> 00:26:27,639 Speaker 2: any legal hassles. 435 00:26:27,760 --> 00:26:30,160 Speaker 1: Right See, these are career service people. They've got career 436 00:26:30,200 --> 00:26:32,840 Speaker 1: service protection under the law, so if they get fired, 437 00:26:32,840 --> 00:26:35,439 Speaker 1: they can sue and get their job back. But for 438 00:26:35,480 --> 00:26:38,960 Speaker 1: all practical purposes, their days are numbered in this administration, 439 00:26:39,080 --> 00:26:42,399 Speaker 1: because even if they get their jobs back, even if 440 00:26:42,400 --> 00:26:46,000 Speaker 1: they successfully bring an action against the Trump administration, they'll 441 00:26:46,040 --> 00:26:48,800 Speaker 1: be stuck counting paper clips in the basement. They're going 442 00:26:48,840 --> 00:26:50,800 Speaker 1: to be stuck at a department in an area that 443 00:26:50,840 --> 00:26:53,720 Speaker 1: they don't want to be in. And so they realize 444 00:26:53,760 --> 00:26:56,240 Speaker 1: that they're going to have to find something else now 445 00:26:56,240 --> 00:26:58,719 Speaker 1: if they want to stay around they really believe, Like 446 00:26:58,800 --> 00:27:01,400 Speaker 1: the head of the FBI said that I dug a foxhole, 447 00:27:01,760 --> 00:27:04,560 Speaker 1: I was staying in it. It sucked, but what had 448 00:27:04,600 --> 00:27:07,679 Speaker 1: to be done during wartime. Well yeah, but this is 449 00:27:07,720 --> 00:27:11,240 Speaker 1: four years as opposed to four days or four weeks. 450 00:27:11,280 --> 00:27:13,320 Speaker 1: And so that's why I just think it's a no 451 00:27:13,400 --> 00:27:16,640 Speaker 1: win proposition. We should all be appalled at what's going on. 452 00:27:17,240 --> 00:27:19,800 Speaker 1: But after all, Donald Trump told us he would do it. 453 00:27:20,440 --> 00:27:22,600 Speaker 2: We don't know exactly what the extent of it will 454 00:27:22,640 --> 00:27:24,399 Speaker 2: be at this point, but do you think there are 455 00:27:24,480 --> 00:27:28,080 Speaker 2: enough layers in the FBI that it won't affect the 456 00:27:28,119 --> 00:27:29,119 Speaker 2: bottom line? 457 00:27:30,200 --> 00:27:33,360 Speaker 1: I do worry that the FBI's mission of working with 458 00:27:33,520 --> 00:27:36,320 Speaker 1: intelligence agencies, and not just for domestic law enforce but 459 00:27:36,359 --> 00:27:41,320 Speaker 1: on counterintelligence, that that will be curtailed. Cashpttella said the 460 00:27:41,359 --> 00:27:43,480 Speaker 1: FBI should go back to being cops. But remember the 461 00:27:43,520 --> 00:27:47,000 Speaker 1: reason why the FBI has such a broad jurisdiction, a 462 00:27:47,000 --> 00:27:49,600 Speaker 1: broad mission is because of nine to eleven, there were 463 00:27:49,720 --> 00:27:52,600 Speaker 1: forms put in place to make sure we don't miss 464 00:27:52,640 --> 00:27:55,960 Speaker 1: out on intelligence where we could actually save lives and 465 00:27:55,960 --> 00:27:59,280 Speaker 1: prevent a terrorist attack. So that's why the FBI's mission 466 00:27:59,320 --> 00:28:02,959 Speaker 1: was broadened. Now, if you want to circumscribe their mission 467 00:28:03,040 --> 00:28:06,399 Speaker 1: and make them into just a domestic law enforcement operation 468 00:28:06,480 --> 00:28:10,000 Speaker 1: at the behest of the president, that is going to 469 00:28:10,040 --> 00:28:13,479 Speaker 1: jeopardize national security. And so I would hate for a 470 00:28:13,560 --> 00:28:16,560 Speaker 1: tragedy to happen for us to realize the error of 471 00:28:16,600 --> 00:28:17,119 Speaker 1: their ways. 472 00:28:17,760 --> 00:28:22,840 Speaker 2: So cash Ptel testified that all FBI employees will be 473 00:28:22,880 --> 00:28:26,879 Speaker 2: protected from political retribution and no one will be terminating 474 00:28:26,920 --> 00:28:30,200 Speaker 2: because of the specific cases they worked on. But that's 475 00:28:30,400 --> 00:28:34,280 Speaker 2: outright contradicted by what happened after that testimony. 476 00:28:34,480 --> 00:28:38,000 Speaker 1: People will say anything to get confirmed. Ask Supreme Court 477 00:28:38,200 --> 00:28:42,120 Speaker 1: justices who said that roversus Wighed is settled law. When 478 00:28:42,160 --> 00:28:44,360 Speaker 1: you're there trying to get the votes, you say anything, 479 00:28:44,440 --> 00:28:46,600 Speaker 1: and then you get in, and yeah, good luck trying 480 00:28:46,640 --> 00:28:49,920 Speaker 1: to impeach these guys after they're sworn in. So yeah, 481 00:28:50,000 --> 00:28:52,200 Speaker 1: they'll say what they have to say and then they'll 482 00:28:52,200 --> 00:28:54,200 Speaker 1: do something different. But yeah, he may be right that 483 00:28:54,240 --> 00:28:56,800 Speaker 1: we're not going to fire you, but you're going to 484 00:28:56,880 --> 00:29:02,120 Speaker 1: essentially be sent to the office in Fargo to write 485 00:29:02,160 --> 00:29:05,880 Speaker 1: a two hundred page term paper that'll take four years. 486 00:29:06,240 --> 00:29:09,120 Speaker 2: Forget about the conspiracy theories, forget about the red promises 487 00:29:09,160 --> 00:29:12,760 Speaker 2: of retribution? Is he qualified to run an agency as 488 00:29:12,760 --> 00:29:13,840 Speaker 2: big as the FBI? 489 00:29:14,520 --> 00:29:18,200 Speaker 1: Talking about Cashpitel, well, I know Cashpitel. He used to 490 00:29:18,240 --> 00:29:21,160 Speaker 1: be a public defender in Dade County, so I knew him. 491 00:29:21,600 --> 00:29:23,920 Speaker 1: He doesn't come from the bureau, so in that sense 492 00:29:23,920 --> 00:29:28,080 Speaker 1: he would not be But now these days, expertise is disfavored. 493 00:29:28,440 --> 00:29:31,880 Speaker 1: This is the era of hey, I'll do my own research. 494 00:29:32,360 --> 00:29:35,880 Speaker 1: I think that he will get confirmed because he is 495 00:29:36,040 --> 00:29:39,200 Speaker 1: team Trump. I think the other two controversial ones, the 496 00:29:39,240 --> 00:29:44,440 Speaker 1: most controversial ones, RFK Junior and Tulsea Gabbard are not Republicans. 497 00:29:44,480 --> 00:29:47,640 Speaker 1: They're not part of the team. And if you're part 498 00:29:47,640 --> 00:29:49,440 Speaker 1: of the team, yeah, you're going to get through. They'll 499 00:29:49,440 --> 00:29:51,880 Speaker 1: find a way to get you through. Pete Hetseth got through, 500 00:29:52,240 --> 00:29:55,080 Speaker 1: but Gaberd was a Democrat who ran against Trump. RFK 501 00:29:55,240 --> 00:29:57,800 Speaker 1: Junior was a Democrat. So they don't have the loyalties 502 00:29:57,800 --> 00:30:02,280 Speaker 1: amongst the Republicans that a born and bred Republican does. 503 00:30:02,320 --> 00:30:05,680 Speaker 1: There's an old adage Democrats fall in love, Republicans fall 504 00:30:05,720 --> 00:30:07,760 Speaker 1: in line, and the centers will find a way to 505 00:30:07,760 --> 00:30:10,640 Speaker 1: confirm cash Pattel and I love that he walked away 506 00:30:10,640 --> 00:30:12,520 Speaker 1: from words he said in his own book. It reminds 507 00:30:12,520 --> 00:30:16,000 Speaker 1: me of when Charles Barkley was criticized for some of 508 00:30:16,000 --> 00:30:19,560 Speaker 1: the stuff he wrote in his own autobiography, and Barkley 509 00:30:19,600 --> 00:30:20,840 Speaker 1: said out he was misquoted. 510 00:30:21,720 --> 00:30:24,680 Speaker 2: Charles Barkley can get away with that stuff, though, I'm 511 00:30:24,680 --> 00:30:27,400 Speaker 2: not so sure about Cash Patel. Now, one of the 512 00:30:27,440 --> 00:30:31,600 Speaker 2: complaints you hear is that if Patel hads the FBI, 513 00:30:31,680 --> 00:30:35,120 Speaker 2: there'll be no independence from the White House. Is that 514 00:30:35,200 --> 00:30:38,200 Speaker 2: really a big problem? There have been other times when 515 00:30:38,360 --> 00:30:41,200 Speaker 2: the FBI and the White House were aligned. 516 00:30:41,800 --> 00:30:46,520 Speaker 1: Yeah, even though JEdgar Hoover was independent of the White House. 517 00:30:46,560 --> 00:30:49,120 Speaker 1: And so there is a long history of independence. Remember 518 00:30:49,240 --> 00:30:52,120 Speaker 1: the whole kerfuffle with James Comey. I mean, we've seen 519 00:30:52,120 --> 00:30:54,400 Speaker 1: this over and over again that the FBI actually has 520 00:30:54,440 --> 00:30:59,600 Speaker 1: had more independence from the president than the Attorney general has. 521 00:31:00,320 --> 00:31:03,520 Speaker 1: In the DOJ John F. Kennedy appointed his own brother 522 00:31:03,600 --> 00:31:07,440 Speaker 1: to be attorney general. President Obama and Eric Holder were 523 00:31:07,520 --> 00:31:10,560 Speaker 1: very close. Eric Holder referred to President Obama as his wingman. 524 00:31:11,000 --> 00:31:13,760 Speaker 1: So we've seen this before. Jimmy Carter's attorney general was 525 00:31:13,760 --> 00:31:16,360 Speaker 1: a boyhood friend of his from Georgia. So it's not 526 00:31:16,440 --> 00:31:19,680 Speaker 1: unusual for a president to appoint an attorney general who's 527 00:31:19,720 --> 00:31:22,880 Speaker 1: close with and so the whole thing about independence, Yeah, 528 00:31:22,880 --> 00:31:26,400 Speaker 1: and theory, that's great, but not everyone's going to be Jannerino. 529 00:31:26,760 --> 00:31:30,160 Speaker 1: With Bill Clinton, that was truly independent, Mary Garland, truly 530 00:31:30,160 --> 00:31:33,000 Speaker 1: independent when you go after and prosecute the president's son. 531 00:31:33,440 --> 00:31:35,240 Speaker 1: But we had that choice in the last election. We 532 00:31:35,280 --> 00:31:39,440 Speaker 1: had the choice between independent DOJ and independent FBI, and 533 00:31:39,680 --> 00:31:42,080 Speaker 1: a choice between that and Donald Trump, who said they're 534 00:31:42,080 --> 00:31:43,680 Speaker 1: going to essentially work for me and I will be 535 00:31:43,680 --> 00:31:45,880 Speaker 1: a retribution, and the voters chose the latter. 536 00:31:46,240 --> 00:31:48,719 Speaker 2: So I know, you know Pam Bondy, but it seemed 537 00:31:48,720 --> 00:31:51,040 Speaker 2: like she did benefit from the fact that the person 538 00:31:51,080 --> 00:31:55,880 Speaker 2: who was initially chosen to be the attorney general was 539 00:31:55,960 --> 00:31:59,320 Speaker 2: so out of so out of the mainstream, so out 540 00:31:59,320 --> 00:32:02,840 Speaker 2: of most people comprehension, that she sort of got I 541 00:32:02,840 --> 00:32:05,240 Speaker 2: think a benefit from that because people were like, she's 542 00:32:05,240 --> 00:32:05,760 Speaker 2: not Matt. 543 00:32:05,640 --> 00:32:06,440 Speaker 1: Gates, right right. 544 00:32:06,520 --> 00:32:06,760 Speaker 5: Yeah. 545 00:32:07,120 --> 00:32:09,400 Speaker 1: Reminds me of the person who became mayor of Washington, 546 00:32:09,440 --> 00:32:12,120 Speaker 1: d C. After Marion Barry. When your predecessor is caught 547 00:32:12,160 --> 00:32:14,880 Speaker 1: on camera smoking crack, you know you've got a low 548 00:32:14,920 --> 00:32:18,280 Speaker 1: bar to exceed. So that was Pam Bondi having to 549 00:32:18,280 --> 00:32:20,560 Speaker 1: to exceed that Matt Gates bar that was going to 550 00:32:20,640 --> 00:32:24,480 Speaker 1: be an easier get and Pam A. Bondi is someone 551 00:32:24,560 --> 00:32:26,400 Speaker 1: I know very well. I ran against her than I 552 00:32:26,440 --> 00:32:28,800 Speaker 1: worked for her, so I know that she does believe 553 00:32:28,800 --> 00:32:31,760 Speaker 1: in the rule of law. And people are asking, well 554 00:32:31,920 --> 00:32:35,160 Speaker 1: she should resign now, well, she hasn't even been confirmed yet, 555 00:32:35,280 --> 00:32:40,160 Speaker 1: and if she's not approved, and if she decides to resign, 556 00:32:40,240 --> 00:32:41,680 Speaker 1: out of discuss who do you think he's going to 557 00:32:41,720 --> 00:32:44,280 Speaker 1: a point? He's going to a point like Rudy Giuliani 558 00:32:44,400 --> 00:32:47,320 Speaker 1: or like the MyPillow guy with a degree from Trump 559 00:32:47,440 --> 00:32:50,400 Speaker 1: University or something. Who knows. So it's not going to 560 00:32:50,440 --> 00:32:52,880 Speaker 1: get better. Pam Bondi, I think is the best nominee 561 00:32:52,960 --> 00:32:55,840 Speaker 1: that Democrats could hope for, because she at least as 562 00:32:55,880 --> 00:32:59,640 Speaker 1: someone who is qualified. She's a twenty year prosecutor, she 563 00:32:59,720 --> 00:33:01,720 Speaker 1: believe in the rule of law, and she's hired Democrats 564 00:33:01,800 --> 00:33:04,360 Speaker 1: like me to work with her. So I do think 565 00:33:04,480 --> 00:33:07,120 Speaker 1: she will serve as somewhat of a check on some 566 00:33:07,160 --> 00:33:09,320 Speaker 1: of the real radical abuses. I got to believe she 567 00:33:09,320 --> 00:33:13,520 Speaker 1: would never have supported the full pardons for all these criminals, 568 00:33:13,600 --> 00:33:16,760 Speaker 1: these rioters, these insurrectionists that Donald Trump pardon including those 569 00:33:16,920 --> 00:33:18,360 Speaker 1: who beat up police officers. 570 00:33:19,080 --> 00:33:22,520 Speaker 2: One thing that a lot of people found concerning Democrats, 571 00:33:22,560 --> 00:33:25,680 Speaker 2: I'll say is that she would not say that the 572 00:33:25,680 --> 00:33:27,480 Speaker 2: twenty twenty election was fair. 573 00:33:28,760 --> 00:33:31,800 Speaker 1: Yeah, she went further than most. She said she accepts 574 00:33:31,880 --> 00:33:34,320 Speaker 1: the results. And yeah, but yeah, I mean, if you're 575 00:33:34,320 --> 00:33:37,000 Speaker 1: going to wait for a Republican nominee to say that 576 00:33:37,240 --> 00:33:39,520 Speaker 1: Donald Trump lost a twenty twenty election, you're gonna be 577 00:33:39,720 --> 00:33:42,400 Speaker 1: waiting for a long time because he would never appoint 578 00:33:42,480 --> 00:33:44,800 Speaker 1: someone who's not going to at least give lip service 579 00:33:44,840 --> 00:33:47,160 Speaker 1: to the big lie. This is the reason why he 580 00:33:47,160 --> 00:33:49,200 Speaker 1: appointed them, because they're gonna be loyal to him, and 581 00:33:49,240 --> 00:33:51,040 Speaker 1: you can't be loyal to him and actually say the 582 00:33:51,040 --> 00:33:54,520 Speaker 1: truth about the twenty twenty election. So yeah, you can 583 00:33:54,600 --> 00:33:56,080 Speaker 1: just hope for the best that we can get, which 584 00:33:56,120 --> 00:33:58,480 Speaker 1: is someone like Pam who can say that I accept 585 00:33:58,520 --> 00:34:01,400 Speaker 1: the results of the election. And she never used the 586 00:34:01,480 --> 00:34:04,600 Speaker 1: F word when she testified fraud. She didn't use that word. 587 00:34:04,680 --> 00:34:06,760 Speaker 1: She didn't say she saw fraud in Pennsylvania. She says 588 00:34:06,800 --> 00:34:10,040 Speaker 1: she saw things. Okay, take what you can get. 589 00:34:10,560 --> 00:34:14,240 Speaker 2: She'll have control over the FBI, it's part of the DOJ. 590 00:34:15,120 --> 00:34:18,560 Speaker 1: She'll have some level of control over it. Ultimately, the 591 00:34:18,600 --> 00:34:22,040 Speaker 1: power to prosecute comes from her, not from the FBI. 592 00:34:22,160 --> 00:34:24,600 Speaker 1: But there's an old adage you can beat the rap, 593 00:34:24,760 --> 00:34:27,160 Speaker 1: but you can't beat the ride. And that's where cash 594 00:34:27,160 --> 00:34:30,400 Speaker 1: Btel can be really dangerous. Is that, even if Pamboni 595 00:34:30,440 --> 00:34:33,640 Speaker 1: does not approve of the actual indictment of going to 596 00:34:33,680 --> 00:34:36,120 Speaker 1: a grand jury, cash Motel as the head of the FBI, 597 00:34:36,239 --> 00:34:39,040 Speaker 1: can investigate and make any target's life miserable. 598 00:34:40,160 --> 00:34:44,480 Speaker 2: The investigations and the build up to possible prosecutions can 599 00:34:44,520 --> 00:34:48,719 Speaker 2: not only be nerve wracking, but very expensive as you 600 00:34:48,800 --> 00:34:51,959 Speaker 2: hire lawyers to defend yourself. Thanks so much for coming 601 00:34:51,960 --> 00:34:55,479 Speaker 2: on the show, Dave. That's Dave Ehrenberg, former Palm Beach 602 00:34:55,560 --> 00:34:58,360 Speaker 2: County State Attorney. And that's it for this edition of 603 00:34:58,360 --> 00:35:01,040 Speaker 2: The Bloomberg Law Show. Remember you can always get the 604 00:35:01,120 --> 00:35:04,319 Speaker 2: latest legal news on our Bloomberg Law podcasts. You can 605 00:35:04,360 --> 00:35:08,600 Speaker 2: find them on Apple Podcasts, Spotify, and at www dot 606 00:35:08,600 --> 00:35:12,799 Speaker 2: Bloomberg dot com, slash podcast Slash Law, and remember to 607 00:35:12,840 --> 00:35:15,879 Speaker 2: tune into The Bloomberg Law Show every weeknight at ten 608 00:35:15,960 --> 00:35:19,680 Speaker 2: pm Wall Street Time. I'm June Grosso and you're listening 609 00:35:19,800 --> 00:35:20,480 Speaker 2: to Bloomberg