WEBVTT - Manafort’s Washington Trial Pushed Back

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<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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<v Speaker 1>day we bring you insight and analysis into the most

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<v Speaker 1>important legal news of the day. You can find more

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<v Speaker 1>episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

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<v Speaker 1>and on Bloomberg dot com Slash podcasts. Couldn't unsolve sixty

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<v Speaker 1>two year old murder case? Stop Special Counsel Robert Muller

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<v Speaker 1>from publishing his much anticipated report of his findings in

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<v Speaker 1>the Russia investigation. Joining me to answer that question, is

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<v Speaker 1>Brad moss a partner? Mark said, So, Brad, this case

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<v Speaker 1>is now getting attention because the DC Federal Court of

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<v Speaker 1>Appeals is going to be ruling on the request of

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<v Speaker 1>attorney and author Stuart McKeever to releak secret testimony given

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<v Speaker 1>to a grand jury that investigated the disappearance of a

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<v Speaker 1>Columbia University professor back in nineteen fifty six. Tell us

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<v Speaker 1>a little more about this. Yes, so, this is an

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<v Speaker 1>interesting case in terms of something that had no intention

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<v Speaker 1>probably of ever implicating anything out of the historical context

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<v Speaker 1>of the circumstances of this one professor's death many decades ago,

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<v Speaker 1>but it obviously has some potential policy implications for what's

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<v Speaker 1>going on right now with the Russia pro because it

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<v Speaker 1>ultimately revolves around the ability of the judiciary to authorize

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<v Speaker 1>the release of information that is otherwise considered secret. It's

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<v Speaker 1>grand jury information. And the problem here for the Muller

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<v Speaker 1>team is in the past, when he had something like

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<v Speaker 1>the Independent Council Statute, there was a statutory basis for

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<v Speaker 1>UH the Independent Council to release and or to incorporate

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<v Speaker 1>grand jury information into report. That's why you saw it

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<v Speaker 1>in the ken Star report back in the nineties with

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

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<v Speaker 1>statutory exception or loophole here, and so we're relying now

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<v Speaker 1>on different interpretations of existing DJ regulations, and no one

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<v Speaker 1>quite knows for sure how Mueller's team would view their

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<v Speaker 1>authority and how d o J leadership, particularly the Turn

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<v Speaker 1>of General, would view the proper policy here um in

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<v Speaker 1>the absence of a ruling by the Circuit UH in

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<v Speaker 1>this ongoing case to decide to what extent Mr Muller

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<v Speaker 1>could bring in various grand jury information and whatever report

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<v Speaker 1>he writes about the President's involvement in collusion or obstruction,

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<v Speaker 1>would this DC Circuit opinion necessarily rule in the in

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<v Speaker 1>the Muller case, No, so this so it's it's the

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<v Speaker 1>I mean, it might get mentioned in the periphery, but

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<v Speaker 1>the this DC Circuit panel is only addressing the context

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<v Speaker 1>of the specific case before, which is trying to get

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<v Speaker 1>the court to authorize the release of this various grand

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<v Speaker 1>jury testimony from decades ago when the case was presented

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<v Speaker 1>as the grand jury but ultimately no prosecution was pursued. Uh.

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<v Speaker 1>And so the d o J position in that case,

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<v Speaker 1>because in any case, in the kind of situation that

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<v Speaker 1>just Department represents the US government, d o J is

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<v Speaker 1>taking the position the judiciary doesn't have the authority absent

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<v Speaker 1>specific statutory authorization from Congress, to authorize that release. And

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<v Speaker 1>we don't know how the the three court panel will rule.

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<v Speaker 1>If this panel rules that the courts don't have that

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<v Speaker 1>kind of authority absent congressional statute, it undermines some parts

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<v Speaker 1>of what Muller's team would otherwise want to put into

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<v Speaker 1>a report. Now, if Democrats win control of the House

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<v Speaker 1>in November, is there a problem solved? Essentially, because they

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<v Speaker 1>can in any kind of subpoena, they can request this

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<v Speaker 1>if they're having impeachment hearings, Craig, and this is this

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<v Speaker 1>is only a problem in the context of uh, they're

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<v Speaker 1>not being a congressional impetus. So if the Democrats take

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<v Speaker 1>the House and the Senate and they choose to run

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<v Speaker 1>various investigations or issue subpoenas that they've been dying to

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<v Speaker 1>do this whole time, but they've been facing um some

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<v Speaker 1>pushback from the Republicans, then yeah, they can do that.

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<v Speaker 1>They are then killing in that gap that otherwise required

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<v Speaker 1>that congressional authorization. But if they fail, if the Republicans

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<v Speaker 1>hold the House and the Senate, you don't know how

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<v Speaker 1>this will play out. You don't know how Mr Mueller

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<v Speaker 1>would view, you know, any particular ruling. If the if

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<v Speaker 1>the DC Circuit comes down in favor of the Justice

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<v Speaker 1>Department's view that the judy starts said, the judiciary doesn't

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<v Speaker 1>have this inherent authority, will he have to curtail or

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<v Speaker 1>restrict the comprehensive nature of his report? Will Mr Rosenstein

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<v Speaker 1>determined that their aspects of the report that can never

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<v Speaker 1>be sent to Congress. No one truly knows how this

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<v Speaker 1>would play out in reality. It's certainly not something we

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<v Speaker 1>were expecting. But It's going to be an interesting case

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<v Speaker 1>to see how the Circuit panel UH considers it and

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<v Speaker 1>rules ultimately, so Brad turning to other aspects of the

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<v Speaker 1>Mueller probe, turning to Paul Manaforts next case of the

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<v Speaker 1>judge has put it off for a little while, or

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<v Speaker 1>at least has put off the presentation of the defense

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<v Speaker 1>case in or to give them more time, although jury

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<v Speaker 1>selection will begin. The Wall Street Journal reported that last week,

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<v Speaker 1>as the Virginia jury was deliberating that the defense Manaforts

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<v Speaker 1>getting my ams mixed up, Manaforts defense team was talking

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<v Speaker 1>to Muller's prosecutors about a possible plea deal which did

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

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<v Speaker 1>I think could be a number of things. One most

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<v Speaker 1>obvious is this is very expensive to run this high

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<v Speaker 1>profile UH and very lawyer laid in defense to Mr

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<v Speaker 1>Manaford is running it costs hundreds of thousand dollars. He

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<v Speaker 1>already just went through that with one trial, and he's

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<v Speaker 1>got a deal now with the second one. He has

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<v Speaker 1>financial problems of his own, as we heard all about

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<v Speaker 1>during the trial in the Eastern District of Virginia, and

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<v Speaker 1>he has to wonder how much longer he can afford this,

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<v Speaker 1>since he's already been convicted on eight counts and is

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<v Speaker 1>most likely going to jail for the rest of his

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<v Speaker 1>nat real life. So there certainly is a reason and

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<v Speaker 1>incentive for him to try to minimize the financial burden

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<v Speaker 1>that's going to be imposed on his family when this

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<v Speaker 1>is all done. He's got to see if there's any

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<v Speaker 1>kind of deal he can make in the end to

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<v Speaker 1>try to save his skin and possibly still see the

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

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<v Speaker 1>What was the reason the negotiations broke down? The Wall

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

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<v Speaker 1>of course, is that it had to deal with the

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<v Speaker 1>extent to which Mueller sent to which Manafort was willing

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<v Speaker 1>to cooperate, was willing to provide relevant and material information

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<v Speaker 1>to the Mueller team on the issue of collusion. And

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<v Speaker 1>it could be that Manafort doesn't have anything, or could

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<v Speaker 1>be that Manafort didn't want to strike that kind of deal,

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

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<v Speaker 1>go to trial. We've already got you nailed. I tell

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<v Speaker 1>you that I wish we had more time because I

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<v Speaker 1>also wanted to ask you about the other implications of this,

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<v Speaker 1>and it seemed like Mueller seems to be just rejecting

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<v Speaker 1>a lot of information that is coming his way. Perhaps

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

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<v Speaker 1>Brad Moss, a partner at Mark Say. On Monday, a

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<v Speaker 1>federal judge in Seattle extended a ban on publishing glueprints

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<v Speaker 1>for untraceable three D printed guns online, another victory for

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<v Speaker 1>gun control groups and nineteen states trying to stop the

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<v Speaker 1>plans from being made public after the band first went

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<v Speaker 1>into effect last month. Washington Attorney General Robert Ferguson celebrated

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<v Speaker 1>the decision and explained the suit. The idea here is

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<v Speaker 1>to limit the harm, and by placing this temporary storing

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<v Speaker 1>and temporary straining order place that'll make a dramatic difference

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<v Speaker 1>for public safety. That could be ludicrous for anyone to

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<v Speaker 1>suggest somehow that it does not make a see joining

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<v Speaker 1>us as Barry McDonald, professor at pepper Dune University Law School,

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<v Speaker 1>Barry the Trump administration reversed the position of the Obama administration.

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<v Speaker 1>Why is the federal government fighting in court to allow

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<v Speaker 1>the distribut usition of three D printed gun files. Well,

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<v Speaker 1>I think there sort of back on their heels. They're

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<v Speaker 1>not so much fighting to allow it to happen, but

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<v Speaker 1>they're justifying a settlement agreement that they entered into with

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<v Speaker 1>this defense distributed company to allow them to do that.

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<v Speaker 1>And you know, they put forth a couple of different

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<v Speaker 1>rationales for that. Originally in a memo by the State Department,

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<v Speaker 1>they said that we don't think the First Amendment would

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<v Speaker 1>allow us to keep them from making these uh digital

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<v Speaker 1>blueprints or these software files available on the internet. And

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<v Speaker 1>then in court they're really justifying on the ground that

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<v Speaker 1>what we did a long study and we've concluded that

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<v Speaker 1>allowing these blueprints to be distributed won't threaten our national

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<v Speaker 1>security interests. So tell us the judge issued a strongly

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<v Speaker 1>worded decision. Tell us what he said. Well, the judge

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<v Speaker 1>basically said that the Trump administration didn't follow proper procedures

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<v Speaker 1>when uh it removed this particular item from the export restriction.

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<v Speaker 1>So the law at issue here is a is a

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<v Speaker 1>ban on making available information to foreigners that might, you know,

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<v Speaker 1>allow them to create weapons and munitions that could be

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<v Speaker 1>used against the United States and So the judge that

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<v Speaker 1>that when the Trump administration agreed to remove these particular

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<v Speaker 1>items from the sort of category it might have felt

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

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

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

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<v Speaker 1>just you know, you didn't do it the right way.

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<v Speaker 1>Go back and you know, restart the thirty day clock,

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<v Speaker 1>do it the right way and then and then see

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<v Speaker 1>then we'll litigate the case perhaps on other grounds. So

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<v Speaker 1>it's a procedural victory. Then what let's talk about the

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<v Speaker 1>underlying case is the First Amendment claim of Cody Wilson,

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<v Speaker 1>who's the owner of Defense Distributed, who wants to post

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<v Speaker 1>the plans online. Is that First Amendment claim solid or

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<v Speaker 1>is that questionable? I think it's very solid um And

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<v Speaker 1>it's solid because of rules the Supreme Court has developed

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<v Speaker 1>over time to create very broad protections for free speech.

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<v Speaker 1>So the first question is, you know, our computer software

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<v Speaker 1>files or computer programs are are they speech? And I

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<v Speaker 1>and you know, some argue they aren't. Some argue this

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<v Speaker 1>is just conduct. But I think those arguments are weak.

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<v Speaker 1>I mean you know, computer programs consisted of source code,

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<v Speaker 1>object code, you know, human written language as well as

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<v Speaker 1>sort of mathematic qual formulas that are designed to be

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<v Speaker 1>instructor computer hardware as well as computer users what to do.

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

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<v Speaker 1>you know, even digital uh you know one gerals that

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

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<v Speaker 1>have to say, well, you know, music notation that is

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<v Speaker 1>designed to be a symbol to communicate how to play

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<v Speaker 1>an instrument, isn't human expression protected by the First Amendment,

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<v Speaker 1>Or that, for example, a mathematical formula like E equals

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<v Speaker 1>mc squared isn't human expression protected by the First Amendment.

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<v Speaker 1>So I just think it's very difficult to make the

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<v Speaker 1>argument that, you know, these computer programs aren't speech, and

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<v Speaker 1>then once you um, you know, determine that their speech. Now,

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<v Speaker 1>the Supreme Court is said two things. One, if you

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<v Speaker 1>try to restrain the publication of speech before it happened, uh,

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<v Speaker 1>then the government is going to face a very severe

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<v Speaker 1>burden in terms of preventing that dissemination. Think of the

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<v Speaker 1>Pentagon papers case that was recently uh displayed in the

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<v Speaker 1>Post movie where you know, the Supreme Court basically said

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<v Speaker 1>the government could not restrain the publication of you know,

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<v Speaker 1>top secret information about the Vietnam War because the government

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<v Speaker 1>had demonstrated a severe enough national security threat. And so

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<v Speaker 1>you have that rule that kicked in here where the

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<v Speaker 1>government would have to demonstrate a severe national security threat

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<v Speaker 1>or other harm. Well when the government before we go

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<v Speaker 1>to the other rule, would the government be able to

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<v Speaker 1>prove harm with the States be able to prove harm

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<v Speaker 1>in this case where you likely could have access to

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<v Speaker 1>guns from you know, to terrorists and all kinds of

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<v Speaker 1>other people. Well, of course, the States are arguing, and

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<v Speaker 1>I think understandably so they're very concerned that you know,

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<v Speaker 1>this could put untraced and undetectable plastic guns, uh in

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<v Speaker 1>the hands of a lot more users, you know, and

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<v Speaker 1>given the mass shootings that occur regularly throughout the United

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<v Speaker 1>States these days. You know, I don't I don't. I

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

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<v Speaker 1>what is the best way to go about addressing the harm?

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<v Speaker 1>Is it too Is it to prevent the speech and

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<v Speaker 1>this is sort of what we call instructional speech. Is

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<v Speaker 1>it for the government to be able to ban or

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<v Speaker 1>sensor instructional speech or is it to go after the

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<v Speaker 1>underlying conduct? And you know, uh, enforce the laws more

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<v Speaker 1>aggressively because there are laws on the books about having

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<v Speaker 1>untraceable weapons, and New York is proposing in the light

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<v Speaker 1>of this whole controversy, New York is proposing legislation that

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<v Speaker 1>would make people that want to print these sort of

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<v Speaker 1>guns be licensed and register them. Uh So the only

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<v Speaker 1>question is is, you know, is that going to be

0:14:02.679 --> 0:14:04.880
<v Speaker 1>Are they going to have enough of an enforcement effort

0:14:05.320 --> 0:14:09.080
<v Speaker 1>to mitigate the potential harm? But in past cases, the

0:14:09.120 --> 0:14:12.280
<v Speaker 1>Supreme Court has pretty much always come down on the

0:14:12.360 --> 0:14:16.040
<v Speaker 1>side of, well, go after the bad conduct, regulate the

0:14:16.080 --> 0:14:19.040
<v Speaker 1>bad conduct, don't go after the speech. That's what's protected

0:14:19.080 --> 0:14:23.440
<v Speaker 1>by the First Amendment. And another good example of that is, uh,

0:14:23.480 --> 0:14:26.840
<v Speaker 1>you know, there was an older case where a magazine

0:14:26.880 --> 0:14:31.840
<v Speaker 1>wanted to publish how to make a nuclear bomb, the

0:14:31.880 --> 0:14:35.920
<v Speaker 1>instructions from making the nuclear bomb, and the very we

0:14:36.200 --> 0:14:38.440
<v Speaker 1>only have a we only have a minute here left,

0:14:38.440 --> 0:14:40.640
<v Speaker 1>and I want to just read this headline to you

0:14:40.680 --> 0:14:43.640
<v Speaker 1>that's crossing the Bloomberg. The owner of the company that

0:14:43.680 --> 0:14:47.080
<v Speaker 1>makes those untraceable three D printed guns said he's begun

0:14:47.160 --> 0:14:50.840
<v Speaker 1>selling the plans online despite the court order. In forty

0:14:50.880 --> 0:14:53.360
<v Speaker 1>five seconds, can you tell me what might be next

0:14:53.400 --> 0:14:58.880
<v Speaker 1>in light of this? Well, so he was always claiming

0:14:58.960 --> 0:15:04.000
<v Speaker 1>that he had uh legally posted certain files on the

0:15:04.040 --> 0:15:06.440
<v Speaker 1>internet before this order. So I'm not sure if he's

0:15:06.440 --> 0:15:09.080
<v Speaker 1>talked about that or he's actually talking about defying the

0:15:09.160 --> 0:15:12.280
<v Speaker 1>court order now that it's been played, if he's defying

0:15:12.320 --> 0:15:14.280
<v Speaker 1>the cord or you know, of course the court can

0:15:14.320 --> 0:15:17.760
<v Speaker 1>hold him in contempt and then his his defense would be, no,

0:15:17.920 --> 0:15:19.600
<v Speaker 1>you can't do that because you know I have a

0:15:19.640 --> 0:15:21.600
<v Speaker 1>First Amendment right to do that. We have to leave

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<v Speaker 1>it there. More about this, uh in the coming days.

0:15:24.640 --> 0:15:28.600
<v Speaker 1>That's Barry McDonald McDonald, professor, pepper Down University Law School.

0:15:28.720 --> 0:15:31.680
<v Speaker 1>Thanks for listening to the Bloomberg Law Podcast. You can

0:15:31.720 --> 0:15:35.440
<v Speaker 1>subscribe and listen to the show on Apple Podcasts, SoundCloud,

0:15:35.520 --> 0:15:39.440
<v Speaker 1>and on Bloomberg dot com slash podcast. I'm June Brasso.

0:15:39.920 --> 0:15:43.800
<v Speaker 1>This is Bloomberg. Yea