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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

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Speaker 1: and on Bloomberg dot com Slash podcasts. Couldn't unsolve sixty

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Speaker 1: two year old murder case? Stop Special Counsel Robert Muller

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Speaker 1: from publishing his much anticipated report of his findings in

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Speaker 1: the Russia investigation. Joining me to answer that question, is

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Speaker 1: Brad moss a partner? Mark said, So, Brad, this case

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Speaker 1: is now getting attention because the DC Federal Court of

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Speaker 1: Appeals is going to be ruling on the request of

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Speaker 1: attorney and author Stuart McKeever to releak secret testimony given

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Speaker 1: to a grand jury that investigated the disappearance of a

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Speaker 1: Columbia University professor back in nineteen fifty six. Tell us

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Speaker 1: a little more about this. Yes, so, this is an

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Speaker 1: interesting case in terms of something that had no intention

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Speaker 1: probably of ever implicating anything out of the historical context

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Speaker 1: of the circumstances of this one professor's death many decades ago,

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Speaker 1: but it obviously has some potential policy implications for what's

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Speaker 1: going on right now with the Russia pro because it

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Speaker 1: ultimately revolves around the ability of the judiciary to authorize

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Speaker 1: the release of information that is otherwise considered secret. It's

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Speaker 1: grand jury information. And the problem here for the Muller

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Speaker 1: team is in the past, when he had something like

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Speaker 1: the Independent Council Statute, there was a statutory basis for

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Speaker 1: UH the Independent Council to release and or to incorporate

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Speaker 1: grand jury information into report. That's why you saw it

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Speaker 1: in the ken Star report back in the nineties with

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Speaker 1: Bill Clinton. But that statute lapsed, and so there's no

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Speaker 1: statutory exception or loophole here, and so we're relying now

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Speaker 1: on different interpretations of existing DJ regulations, and no one

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Speaker 1: quite knows for sure how Mueller's team would view their

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Speaker 1: authority and how d o J leadership, particularly the Turn

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Speaker 1: of General, would view the proper policy here um in

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Speaker 1: the absence of a ruling by the Circuit UH in

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Speaker 1: this ongoing case to decide to what extent Mr Muller

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Speaker 1: could bring in various grand jury information and whatever report

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Speaker 1: he writes about the President's involvement in collusion or obstruction,

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Speaker 1: would this DC Circuit opinion necessarily rule in the in

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Speaker 1: the Muller case, No, so this so it's it's the

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Speaker 1: I mean, it might get mentioned in the periphery, but

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Speaker 1: the this DC Circuit panel is only addressing the context

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Speaker 1: of the specific case before, which is trying to get

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Speaker 1: the court to authorize the release of this various grand

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Speaker 1: jury testimony from decades ago when the case was presented

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Speaker 1: as the grand jury but ultimately no prosecution was pursued. Uh.

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Speaker 1: And so the d o J position in that case,

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Speaker 1: because in any case, in the kind of situation that

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Speaker 1: just Department represents the US government, d o J is

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Speaker 1: taking the position the judiciary doesn't have the authority absent

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Speaker 1: specific statutory authorization from Congress, to authorize that release. And

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Speaker 1: we don't know how the the three court panel will rule.

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Speaker 1: If this panel rules that the courts don't have that

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Speaker 1: kind of authority absent congressional statute, it undermines some parts

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Speaker 1: of what Muller's team would otherwise want to put into

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Speaker 1: a report. Now, if Democrats win control of the House

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Speaker 1: in November, is there a problem solved? Essentially, because they

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Speaker 1: can in any kind of subpoena, they can request this

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Speaker 1: if they're having impeachment hearings, Craig, and this is this

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Speaker 1: is only a problem in the context of uh, they're

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Speaker 1: not being a congressional impetus. So if the Democrats take

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Speaker 1: the House and the Senate and they choose to run

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Speaker 1: various investigations or issue subpoenas that they've been dying to

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Speaker 1: do this whole time, but they've been facing um some

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Speaker 1: pushback from the Republicans, then yeah, they can do that.

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Speaker 1: They are then killing in that gap that otherwise required

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Speaker 1: that congressional authorization. But if they fail, if the Republicans

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Speaker 1: hold the House and the Senate, you don't know how

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Speaker 1: this will play out. You don't know how Mr Mueller

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Speaker 1: would view, you know, any particular ruling. If the if

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Speaker 1: the DC Circuit comes down in favor of the Justice

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Speaker 1: Department's view that the judy starts said, the judiciary doesn't

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Speaker 1: have this inherent authority, will he have to curtail or

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Speaker 1: restrict the comprehensive nature of his report? Will Mr Rosenstein

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Speaker 1: determined that their aspects of the report that can never

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Speaker 1: be sent to Congress. No one truly knows how this

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Speaker 1: would play out in reality. It's certainly not something we

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Speaker 1: were expecting. But It's going to be an interesting case

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Speaker 1: to see how the Circuit panel UH considers it and

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Speaker 1: rules ultimately, so Brad turning to other aspects of the

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Speaker 1: Mueller probe, turning to Paul Manaforts next case of the

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Speaker 1: judge has put it off for a little while, or

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Speaker 1: at least has put off the presentation of the defense

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Speaker 1: case in or to give them more time, although jury

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Speaker 1: selection will begin. The Wall Street Journal reported that last week,

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Speaker 1: as the Virginia jury was deliberating that the defense Manaforts

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Speaker 1: getting my ams mixed up, Manaforts defense team was talking

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Speaker 1: to Muller's prosecutors about a possible plea deal which did

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Speaker 1: not work out. What does that indicate to you, if anything? Oh, look,

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Speaker 1: I think could be a number of things. One most

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Speaker 1: obvious is this is very expensive to run this high

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Speaker 1: profile UH and very lawyer laid in defense to Mr

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Speaker 1: Manaford is running it costs hundreds of thousand dollars. He

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Speaker 1: already just went through that with one trial, and he's

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Speaker 1: got a deal now with the second one. He has

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Speaker 1: financial problems of his own, as we heard all about

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Speaker 1: during the trial in the Eastern District of Virginia, and

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Speaker 1: he has to wonder how much longer he can afford this,

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Speaker 1: since he's already been convicted on eight counts and is

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Speaker 1: most likely going to jail for the rest of his

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Speaker 1: nat real life. So there certainly is a reason and

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Speaker 1: incentive for him to try to minimize the financial burden

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Speaker 1: that's going to be imposed on his family when this

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Speaker 1: is all done. He's got to see if there's any

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Speaker 1: kind of deal he can make in the end to

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Speaker 1: try to save his skin and possibly still see the

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Speaker 1: outside world while he's still alive. Now, what was the problem?

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Speaker 1: What was the reason the negotiations broke down? The Wall

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Speaker 1: Street Journal didn't quite say. My assumption, it's pure speculation,

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Speaker 1: of course, is that it had to deal with the

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Speaker 1: extent to which Mueller sent to which Manafort was willing

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Speaker 1: to cooperate, was willing to provide relevant and material information

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Speaker 1: to the Mueller team on the issue of collusion. And

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Speaker 1: it could be that Manafort doesn't have anything, or could

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Speaker 1: be that Manafort didn't want to strike that kind of deal,

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Speaker 1: in which case Muller's team sayesn't forget it, We'll just

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Speaker 1: go to trial. We've already got you nailed. I tell

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Speaker 1: you that I wish we had more time because I

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Speaker 1: also wanted to ask you about the other implications of this,

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Speaker 1: and it seemed like Mueller seems to be just rejecting

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Speaker 1: a lot of information that is coming his way. Perhaps

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Speaker 1: he has anough who knows. Thanks so much, Brad. That's

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Speaker 1: Brad Moss, a partner at Mark Say. On Monday, a

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Speaker 1: federal judge in Seattle extended a ban on publishing glueprints

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Speaker 1: for untraceable three D printed guns online, another victory for

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Speaker 1: gun control groups and nineteen states trying to stop the

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Speaker 1: plans from being made public after the band first went

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Speaker 1: into effect last month. Washington Attorney General Robert Ferguson celebrated

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Speaker 1: the decision and explained the suit. The idea here is

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Speaker 1: to limit the harm, and by placing this temporary storing

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Speaker 1: and temporary straining order place that'll make a dramatic difference

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Speaker 1: for public safety. That could be ludicrous for anyone to

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Speaker 1: suggest somehow that it does not make a see joining

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Speaker 1: us as Barry McDonald, professor at pepper Dune University Law School,

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Speaker 1: Barry the Trump administration reversed the position of the Obama administration.

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Speaker 1: Why is the federal government fighting in court to allow

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Speaker 1: the distribut usition of three D printed gun files. Well,

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Speaker 1: I think there sort of back on their heels. They're

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Speaker 1: not so much fighting to allow it to happen, but

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Speaker 1: they're justifying a settlement agreement that they entered into with

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Speaker 1: this defense distributed company to allow them to do that.

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Speaker 1: And you know, they put forth a couple of different

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Speaker 1: rationales for that. Originally in a memo by the State Department,

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Speaker 1: they said that we don't think the First Amendment would

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Speaker 1: allow us to keep them from making these uh digital

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Speaker 1: blueprints or these software files available on the internet. And

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Speaker 1: then in court they're really justifying on the ground that

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Speaker 1: what we did a long study and we've concluded that

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Speaker 1: allowing these blueprints to be distributed won't threaten our national

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Speaker 1: security interests. So tell us the judge issued a strongly

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Speaker 1: worded decision. Tell us what he said. Well, the judge

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Speaker 1: basically said that the Trump administration didn't follow proper procedures

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Speaker 1: when uh it removed this particular item from the export restriction.

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Speaker 1: So the law at issue here is a is a

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Speaker 1: ban on making available information to foreigners that might, you know,

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Speaker 1: allow them to create weapons and munitions that could be

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Speaker 1: used against the United States and So the judge that

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Speaker 1: that when the Trump administration agreed to remove these particular

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Speaker 1: items from the sort of category it might have felt

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Speaker 1: fallen into on the export with that, they didn't, you know,

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Speaker 1: properly give Congress thirty days prior day notice of doing that. Uh,

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Speaker 1: and they didn't notify the Defense Department. So it's really

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Speaker 1: just you know, you didn't do it the right way.

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Speaker 1: Go back and you know, restart the thirty day clock,

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Speaker 1: do it the right way and then and then see

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Speaker 1: then we'll litigate the case perhaps on other grounds. So

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Speaker 1: it's a procedural victory. Then what let's talk about the

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Speaker 1: underlying case is the First Amendment claim of Cody Wilson,

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Speaker 1: who's the owner of Defense Distributed, who wants to post

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Speaker 1: the plans online. Is that First Amendment claim solid or

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Speaker 1: is that questionable? I think it's very solid um And

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Speaker 1: it's solid because of rules the Supreme Court has developed

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Speaker 1: over time to create very broad protections for free speech.

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Speaker 1: So the first question is, you know, our computer software

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Speaker 1: files or computer programs are are they speech? And I

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Speaker 1: and you know, some argue they aren't. Some argue this

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Speaker 1: is just conduct. But I think those arguments are weak.

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Speaker 1: I mean you know, computer programs consisted of source code,

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Speaker 1: object code, you know, human written language as well as

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Speaker 1: sort of mathematic qual formulas that are designed to be

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Speaker 1: instructor computer hardware as well as computer users what to do.

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Speaker 1: So I think it's very difficult to make the argument that,

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Speaker 1: you know, even digital uh you know one gerals that

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Speaker 1: make up bits and bytes aren't speech, because then you'd

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Speaker 1: have to say, well, you know, music notation that is

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Speaker 1: designed to be a symbol to communicate how to play

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Speaker 1: an instrument, isn't human expression protected by the First Amendment,

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Speaker 1: Or that, for example, a mathematical formula like E equals

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Speaker 1: mc squared isn't human expression protected by the First Amendment.

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Speaker 1: So I just think it's very difficult to make the

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Speaker 1: argument that, you know, these computer programs aren't speech, and

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Speaker 1: then once you um, you know, determine that their speech. Now,

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Speaker 1: the Supreme Court is said two things. One, if you

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Speaker 1: try to restrain the publication of speech before it happened, uh,

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Speaker 1: then the government is going to face a very severe

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Speaker 1: burden in terms of preventing that dissemination. Think of the

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Speaker 1: Pentagon papers case that was recently uh displayed in the

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Speaker 1: Post movie where you know, the Supreme Court basically said

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Speaker 1: the government could not restrain the publication of you know,

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Speaker 1: top secret information about the Vietnam War because the government

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Speaker 1: had demonstrated a severe enough national security threat. And so

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Speaker 1: you have that rule that kicked in here where the

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Speaker 1: government would have to demonstrate a severe national security threat

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Speaker 1: or other harm. Well when the government before we go

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Speaker 1: to the other rule, would the government be able to

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Speaker 1: prove harm with the States be able to prove harm

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Speaker 1: in this case where you likely could have access to

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Speaker 1: guns from you know, to terrorists and all kinds of

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Speaker 1: other people. Well, of course, the States are arguing, and

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Speaker 1: I think understandably so they're very concerned that you know,

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Speaker 1: this could put untraced and undetectable plastic guns, uh in

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Speaker 1: the hands of a lot more users, you know, and

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Speaker 1: given the mass shootings that occur regularly throughout the United

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Speaker 1: States these days. You know, I don't I don't. I

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Speaker 1: don't doubt their sincerity. Uh. The question is the question is, though,

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Speaker 1: what is the best way to go about addressing the harm?

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Speaker 1: Is it too Is it to prevent the speech and

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Speaker 1: this is sort of what we call instructional speech. Is

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Speaker 1: it for the government to be able to ban or

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Speaker 1: sensor instructional speech or is it to go after the

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Speaker 1: underlying conduct? And you know, uh, enforce the laws more

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Speaker 1: aggressively because there are laws on the books about having

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Speaker 1: untraceable weapons, and New York is proposing in the light

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Speaker 1: of this whole controversy, New York is proposing legislation that

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Speaker 1: would make people that want to print these sort of

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Speaker 1: guns be licensed and register them. Uh So the only

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Speaker 1: question is is, you know, is that going to be

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Speaker 1: Are they going to have enough of an enforcement effort

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Speaker 1: to mitigate the potential harm? But in past cases, the

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Speaker 1: Supreme Court has pretty much always come down on the

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Speaker 1: side of, well, go after the bad conduct, regulate the

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Speaker 1: bad conduct, don't go after the speech. That's what's protected

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Speaker 1: by the First Amendment. And another good example of that is, uh,

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Speaker 1: you know, there was an older case where a magazine

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Speaker 1: wanted to publish how to make a nuclear bomb, the

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Speaker 1: instructions from making the nuclear bomb, and the very we

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Speaker 1: only have a we only have a minute here left,

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Speaker 1: and I want to just read this headline to you

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Speaker 1: that's crossing the Bloomberg. The owner of the company that

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Speaker 1: makes those untraceable three D printed guns said he's begun

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Speaker 1: selling the plans online despite the court order. In forty

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Speaker 1: five seconds, can you tell me what might be next

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Speaker 1: in light of this? Well, so he was always claiming

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Speaker 1: that he had uh legally posted certain files on the

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Speaker 1: internet before this order. So I'm not sure if he's

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Speaker 1: talked about that or he's actually talking about defying the

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Speaker 1: court order now that it's been played, if he's defying

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Speaker 1: the cord or you know, of course the court can

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Speaker 1: hold him in contempt and then his his defense would be, no,

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Speaker 1: you can't do that because you know I have a

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Speaker 1: First Amendment right to do that. We have to leave

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Speaker 1: it there. More about this, uh in the coming days.

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Speaker 1: That's Barry McDonald McDonald, professor, pepper Down University Law School.

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Speaker 1: Thanks for listening to the Bloomberg Law Podcast. You can

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Speaker 1: subscribe and listen to the show on Apple Podcasts, SoundCloud,

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Speaker 1: and on Bloomberg dot com slash podcast. I'm June Brasso.

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Speaker 1: This is Bloomberg. Yea