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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. Joining me is

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Speaker 1: Greg Brower, former FBI Assistant director and former U S

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Speaker 1: attorney Fort Nevada. Thanks for joining us, Greg, Thank you. First,

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Speaker 1: let me get your reaction to Lindsay Graham wanting to

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Speaker 1: start an investigation into the Clinton campaign and a g

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Speaker 1: Loretta Lynch and more well. As the relatively new chairman

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Speaker 1: of the Senate Judiciary Committee, Senator Gram is in a

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Speaker 1: position to initiate UH investigations of that type if he

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Speaker 1: if he decides that should be a committee priority. But

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Speaker 1: I would point out that the d o J Office

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Speaker 1: of Inspector General did a very comprehensive in action investigation

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Speaker 1: of the Department's activities and the FBI's activities relative to

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Speaker 1: the Clinton investigation and is currently conducting hasn't completed yet,

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Speaker 1: an investigation of certain UH the the FAISO warrants that

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Speaker 1: related to the background on the so called Russia investigation.

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Speaker 1: So there is quite a bit of investigative activity already,

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Speaker 1: and so we'll just have to see if Senator Graham

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Speaker 1: decides that, on top of all of that, that a

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Speaker 1: Senate Committee investigation is also warranted. Now let's turn to

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Speaker 1: the summary done by the Attorney General William Barr. He

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Speaker 1: did a four paid summary over forty eight hours after

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Speaker 1: a two year investigation, with not even a full sentence,

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Speaker 1: quoting from the special counsel's report itself. What are you

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Speaker 1: confident that Special Counsel Muller himself determined. Well, it appears

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Speaker 1: from the summary, and of course the at least the

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Speaker 1: Democrats on Capital have been and will continue to demand

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Speaker 1: production of the entire report. But it's clear from the

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Speaker 1: four page summary that the Special Counsel did not find

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Speaker 1: sufficient evidence of any criminal wrongdoing to seek further indictments,

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Speaker 1: including potential charges against the president. UH. And so that's

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Speaker 1: the good news for the president. What is is not clear, um,

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Speaker 1: But but what the letter suggests uh and needs clarification

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Speaker 1: or two things. One is that the letter quotes from

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Speaker 1: in part the Mueller report in saying that the report

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Speaker 1: UH or the investigation did not exonerate the president everyone

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Speaker 1: of course is wondering what what that means exactly, and

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Speaker 1: that deserves some explanation. And then secondly, the letter also

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Speaker 1: appears to suggest that the Special Counsel deferred to the

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Speaker 1: Attorney General with respect to making a final call on

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Speaker 1: whether the president engaged an obstruction of justice. That has

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Speaker 1: raised a lot of questions in Washington, because, of course,

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Speaker 1: the Special Counsel's mandate was to conduct this investigation so

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Speaker 1: that and make decisions relating to the investigation, including the outcome,

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Speaker 1: so that Trump appointees at d o J would not

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Speaker 1: be making those decisions. And so to the extent that

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Speaker 1: the Special Conswer deferred to the a G on the

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Speaker 1: obstruction issue, that that is raising a lot of red flags.

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Speaker 1: Greg let's explore that a little further, because Mueller didn't

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Speaker 1: subpoena the president, and the written questions that Trump and

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Speaker 1: his lawyers provided related only to the time before he

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Speaker 1: became president. Add to that that bar and Mueller seemed

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Speaker 1: to have a different idea of what constitutes obstruction of justice.

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Speaker 1: Could either of those factors have weighed into why Mueller

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Speaker 1: didn't come to a conclusion about obstruction. They could, They

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Speaker 1: certainly could, and we're just not going to to know

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Speaker 1: the answers to these questions and tell Mr Barr and

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Speaker 1: Mr Mueller explain themselves. And I suspect that that will

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Speaker 1: probably happen in the form of a of a congressional

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Speaker 1: hearing at some point. I just don't think that the

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Speaker 1: Congressional Democrats will rest until they have received a full

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Speaker 1: and most likely public explanation of all of these decisions

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Speaker 1: by those two. Now, everyone right now is saying we

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Speaker 1: want everything to be released that can be released. It

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Speaker 1: should all be out there, Republicans and Democrats. The President

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Speaker 1: has said it, and the Press secretary reiterated that. But

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Speaker 1: when it comes down to it, we don't know who

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Speaker 1: will object if they if the President does object on

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Speaker 1: executive privileged grounds in any respect, Is that a hard

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Speaker 1: battle for those who want the report to be revealed.

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Speaker 1: Is that a hard battle for them or for the president? Well,

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Speaker 1: I think it's it's tougher for the president. The you know,

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Speaker 1: exact of privilege, like all privileges, is not absolute. It

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Speaker 1: can be overcome upon the showing of a compelling need.

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Speaker 1: And I just think that the because of the importance

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Speaker 1: of these issues and the high profile nature of them,

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Speaker 1: there's really no way to avoid a full airing of

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Speaker 1: the Special Counsel's work and his findings um indefinitely at

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Speaker 1: some point, I think Congress, because most of the public

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Speaker 1: demands to know the details, will demand a full airing,

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Speaker 1: and that will likely include I think, hearings and a

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Speaker 1: full explanation and look like with any other investigation, if

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Speaker 1: the investigator is confident I'm sure that Mr Mueller is,

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Speaker 1: he will he should have no problem explaining his findings

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Speaker 1: with respect to what he did and did not find,

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Speaker 1: and that is likely to be the case sooner or

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Speaker 1: rather than later. So you think that big reveal, if

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Speaker 1: I can call it, that will happen before elections? Oh,

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Speaker 1: I think so. I think this is going to come

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Speaker 1: to a head relatively quickly. I think, you know, everything

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Speaker 1: in Washington is political, and everything that is political is

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Speaker 1: subject negotiation, and so I just don't think it's tenable

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Speaker 1: for the details of this investigation, you know, with the

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Speaker 1: exception of certain classified information and potentially grant your information

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Speaker 1: and information with respect to a still ongoing investigations the Gravernman,

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Speaker 1: the basic details of what the Special Council found and

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Speaker 1: did not find will have to be aired publicly at

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Speaker 1: some point. I also want to get your take on

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Speaker 1: what standard did bar use in determining that there was

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Speaker 1: no obstruction? Did he use a reasonable doubt standard? Did

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Speaker 1: he use the standard that he doesn't think a president

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Speaker 1: can be prosecuted? Can you tell from his letter? It

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Speaker 1: would appear from the letter that the issue of whether

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Speaker 1: or not as sitting president can be charged with federal

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Speaker 1: crimes was not the determining factor, uh, which begs the

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Speaker 1: question what exactly was? And I just don't think we

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Speaker 1: we can tell from the letter, and that that is

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Speaker 1: at least one of the reasons why there will be

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Speaker 1: a demand by at least half of the Congress for

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Speaker 1: the Attorney General to testify and explain his decision making.

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Speaker 1: That's simply not clear at this point. Let's turn out

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Speaker 1: to the Southern District of New York and its investigation

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Speaker 1: of Trump and his businesses, sometimes referred to as the

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Speaker 1: Sovereign District, and we're hearing that a lot lately. But

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Speaker 1: how much is the Southern District and the prosecutors allowed

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Speaker 1: to go out on their own in investigating and how

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Speaker 1: much in coming to conclusions of who to prosecute? Well,

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Speaker 1: the Southern District Act of New York US Attorney's Office,

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Speaker 1: just like every other one of the nine the other

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Speaker 1: ninety two u Astorney's offices around the country, has quite

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Speaker 1: a bit of leeway in determining its priorities and how

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Speaker 1: to conduct its investigations, and whom to charge and whom

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Speaker 1: not to charge. There are certain d o J guidelines

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Speaker 1: that govern every office, even the so called Software District

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Speaker 1: of New York office, but those guidelines and rules apply

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Speaker 1: to a very narrow set of types of cases and defendants.

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Speaker 1: So for the most part, the Southern District is on

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Speaker 1: its own to pursue the cases it wants to pursue

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Speaker 1: and charge of the defendants it wants to charge. It is, however,

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Speaker 1: subject to some overall department policies, such as the prevailing

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Speaker 1: opinion within d o J that a sitting sitting president

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Speaker 1: can't be charged. That's not something that's simply applied to

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Speaker 1: the mother investigation. That would also apply to the Southern

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Speaker 1: District and every other U S Attorney's office. I would add, though,

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Speaker 1: that that is simply a prevailing opinion within d o J,

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Speaker 1: not a policy, certainly not a statute. I have no

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Speaker 1: doubt that that the Attorney General intends to follow that

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Speaker 1: guidance and unless something unexpected would change, but that guidance

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Speaker 1: would be binding on the Southern district. So what do

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Speaker 1: you expect besides hearing more about the Millory Bart what

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Speaker 1: do you expect to hear of the different investigations? Do

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Speaker 1: you expect one to pop up and have more prominence

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Speaker 1: than the others? Well, the the new one out there is,

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Speaker 1: of course, the Manhattan District Attorney's investigation. We we just

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Speaker 1: uh saw a report of an indictment just a couple

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Speaker 1: of weeks ago, so that one will will be interesting

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Speaker 1: to watch, as well as the New York State Attorney

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Speaker 1: general investigations on a range of conduct related to the

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Speaker 1: Trump organization. Uh. Those I think are the two key

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Speaker 1: ones to watch because those investigations and those prosecutors are

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Speaker 1: not in any way back owned by d o J

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Speaker 1: policies or guidance, and so it's going to be interesting

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Speaker 1: because it will be harder to predict exactly how they

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Speaker 1: will turn out. Thank you so much, it's a pleasure.

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Speaker 1: That's Gregg Browery is a former FBI Assistant director and

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Speaker 1: former US attorney. Thanks so much, Greg for joining us,

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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 Grosso.

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Speaker 1: This is Bloomberg