1 00:00:03,200 --> 00:00:08,000 Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio. 2 00:00:09,640 --> 00:00:14,880 Speaker 2: Today, an indictment was unsealed, charging Donald J. Trump with 3 00:00:15,040 --> 00:00:20,840 Speaker 2: conspiring to defraud the United States, conspiring to disenfranchised voters, 4 00:00:21,880 --> 00:00:26,239 Speaker 2: and conspiring and attempting to obstruct an official proceeding. The 5 00:00:26,280 --> 00:00:29,200 Speaker 2: indictment was issued by a grandeury of citizens here in 6 00:00:29,240 --> 00:00:32,280 Speaker 2: the District of Columbia, and it sets forth the crimes 7 00:00:32,360 --> 00:00:33,440 Speaker 2: charged in detail. 8 00:00:34,240 --> 00:00:37,920 Speaker 3: Remember about a year ago when Special Council Jack Smith 9 00:00:37,920 --> 00:00:42,559 Speaker 3: announced the criminal charges against former President Donald Trump, accusing 10 00:00:42,640 --> 00:00:46,040 Speaker 3: him of plotting to overturn the twenty twenty election. That 11 00:00:46,280 --> 00:00:50,479 Speaker 3: case has been frozen for almost eight months as Trump's 12 00:00:50,520 --> 00:00:53,800 Speaker 3: claims of presidential immunity went all the way up to 13 00:00:53,840 --> 00:00:58,240 Speaker 3: the Supreme Court. But on Tuesday, the Special Council basically 14 00:00:58,320 --> 00:01:02,840 Speaker 3: announced it's game on by filing a superseding indictment with 15 00:01:02,920 --> 00:01:06,959 Speaker 3: the exact same four charges, but recalibrated to fit the 16 00:01:06,959 --> 00:01:13,640 Speaker 3: Supreme Court's controversial decision giving presidents sweeping protections against criminal prosecution. 17 00:01:14,200 --> 00:01:18,000 Speaker 3: That followed Smith's action on Monday urging the Eleventh Circuit 18 00:01:18,040 --> 00:01:22,760 Speaker 3: Court of Appeals to reinstate the classified documents case against Trump. 19 00:01:22,920 --> 00:01:26,040 Speaker 3: A case that was thrown out entirely last month by 20 00:01:26,120 --> 00:01:31,080 Speaker 3: Judge Eileen Cannon in a stunning, unprecedented decision. Joining me 21 00:01:31,120 --> 00:01:35,039 Speaker 3: is Dave Ahrenberg, Palm Beach County State Attorney. What do 22 00:01:35,120 --> 00:01:39,480 Speaker 3: you make of the special Council filing to restart basically 23 00:01:39,600 --> 00:01:43,720 Speaker 3: both cases this week Monday and Tuesday one two punch. 24 00:01:44,319 --> 00:01:45,880 Speaker 1: Jack Smith had to do what he had to do 25 00:01:46,000 --> 00:01:49,240 Speaker 1: because the Supreme Court pushed him into this situation, and 26 00:01:49,360 --> 00:01:52,160 Speaker 1: Judge Cannon in South Florida pushed him into this situation. 27 00:01:52,320 --> 00:01:56,200 Speaker 1: So he's just reacting to outside forces. This wasn't something 28 00:01:56,240 --> 00:01:59,600 Speaker 1: that he wanted to do before the election to try 29 00:01:59,640 --> 00:02:02,160 Speaker 1: to make it an election issue. He was just being 30 00:02:02,160 --> 00:02:04,279 Speaker 1: a lawyer, following the evidence of the law and doing 31 00:02:04,400 --> 00:02:07,160 Speaker 1: what the law required. And so I'm glad he did 32 00:02:07,200 --> 00:02:09,840 Speaker 1: this because I've always thought that, at least in the 33 00:02:09,880 --> 00:02:13,360 Speaker 1: DC election interference case, that the Supreme Court's immunity ruling 34 00:02:13,440 --> 00:02:15,440 Speaker 1: really does not got the case at all. I mean, 35 00:02:15,560 --> 00:02:17,519 Speaker 1: he had got to shave around the edges, but other 36 00:02:17,600 --> 00:02:19,720 Speaker 1: than that, the heart of the case still remain. 37 00:02:20,280 --> 00:02:24,560 Speaker 3: So you weren't surprised that the four charges are the same. 38 00:02:25,080 --> 00:02:26,880 Speaker 1: No, No, I would be surprised. I ever, weren't the 39 00:02:26,919 --> 00:02:29,959 Speaker 1: same because the only part of the DC election interference 40 00:02:30,040 --> 00:02:33,640 Speaker 1: case that needed to be excised was any reference to 41 00:02:34,000 --> 00:02:38,080 Speaker 1: Trump's alleged influence on the Department of Justice to try 42 00:02:38,080 --> 00:02:43,200 Speaker 1: to pressure the States to redo the election, to accuse 43 00:02:43,560 --> 00:02:47,880 Speaker 1: the election of being fraudulent, to threaten to remove the 44 00:02:48,200 --> 00:02:51,519 Speaker 1: acting Attorney general unless he did Trump's bidding. That stuff, 45 00:02:51,560 --> 00:02:55,960 Speaker 1: according to the Supreme Court's immunity decision, is all covered 46 00:02:56,080 --> 00:02:59,760 Speaker 1: by presidential immunity because it's within his core duties to 47 00:03:00,040 --> 00:03:02,920 Speaker 1: aim and attorney general to have an executive brand that 48 00:03:03,000 --> 00:03:05,640 Speaker 1: works with and for him, so he's able to get 49 00:03:05,639 --> 00:03:06,040 Speaker 1: away with that. 50 00:03:06,560 --> 00:03:10,200 Speaker 3: Chief Justice John Roberts in the immunity decision wrote that 51 00:03:10,560 --> 00:03:14,680 Speaker 3: a president is at least presumptively immune from prosecution for 52 00:03:14,760 --> 00:03:20,160 Speaker 3: his interactions with his vice president about constitutional duties, including 53 00:03:20,200 --> 00:03:23,640 Speaker 3: the vice president's conduct and overseeing the Senate. Is that 54 00:03:23,720 --> 00:03:26,520 Speaker 3: going to be the most, perhaps problematic part of the 55 00:03:26,560 --> 00:03:30,480 Speaker 3: superseding indictment in that it keeps in evidence about Trump 56 00:03:30,600 --> 00:03:35,400 Speaker 3: trying to pressure Pence into disrupting the electoral count I don't. 57 00:03:35,200 --> 00:03:38,680 Speaker 1: Think so, June, because all of that can be overcome. 58 00:03:38,760 --> 00:03:41,400 Speaker 1: It's a presumption of community. You just have to show 59 00:03:41,560 --> 00:03:45,560 Speaker 1: that by prosecuting the president, it does not impinge upon 60 00:03:45,760 --> 00:03:49,280 Speaker 1: the powers the official acts of a president. You don't 61 00:03:49,280 --> 00:03:52,360 Speaker 1: want to diminish the powers of a president by going 62 00:03:52,440 --> 00:03:56,320 Speaker 1: after a president for talking to his vice president. And 63 00:03:56,640 --> 00:03:59,320 Speaker 1: the reason why he does not impinge upon the core 64 00:03:59,520 --> 00:04:02,240 Speaker 1: powers of or president is because he was not talking 65 00:04:02,280 --> 00:04:06,720 Speaker 1: to Vice President Pence as a member of his team. 66 00:04:06,960 --> 00:04:09,720 Speaker 1: From a White House perspective, it was as a candidate 67 00:04:09,760 --> 00:04:11,880 Speaker 1: for office. He was talking to Pence to help fix 68 00:04:11,920 --> 00:04:14,880 Speaker 1: the election. He was talking to Pence as an office seeker, 69 00:04:14,960 --> 00:04:18,320 Speaker 1: not an office holder. And also, in any event, Pence 70 00:04:18,680 --> 00:04:21,599 Speaker 1: was acting as the president of the Senate, not as 71 00:04:21,800 --> 00:04:23,920 Speaker 1: Vice president per se. And so that's another way you 72 00:04:23,960 --> 00:04:26,719 Speaker 1: get around it, was that this has not hurt the 73 00:04:26,760 --> 00:04:28,920 Speaker 1: powers of a president to say you're going to be 74 00:04:28,960 --> 00:04:32,560 Speaker 1: held responsible for your improper communications with Mike Pence as 75 00:04:32,640 --> 00:04:34,320 Speaker 1: the president of the Senate. Now, if you were talking 76 00:04:34,360 --> 00:04:36,560 Speaker 1: to Mike Pence about foreign policy in his role as 77 00:04:36,640 --> 00:04:39,160 Speaker 1: vice president, yes that would be protected, but not when 78 00:04:39,160 --> 00:04:41,200 Speaker 1: it comes to Trump trying to overturn an election, which 79 00:04:41,240 --> 00:04:43,719 Speaker 1: is non official act as a candidate for president, not 80 00:04:43,839 --> 00:04:46,560 Speaker 1: as the president. As a candidate and in so doing 81 00:04:46,640 --> 00:04:49,120 Speaker 1: going after Mike Pence as the President of the Senate, 82 00:04:49,200 --> 00:04:50,200 Speaker 1: not as Vice president. 83 00:04:50,480 --> 00:04:53,800 Speaker 3: The Supreme Court's opinion basically changing what people thought the 84 00:04:53,880 --> 00:04:57,880 Speaker 3: law was, and yet there's very little guidance in that 85 00:04:58,000 --> 00:05:00,839 Speaker 3: opinion for prosecutors going forward. 86 00:05:01,320 --> 00:05:05,039 Speaker 1: Yeah, this Supreme Court decision is broad and it is confusing, 87 00:05:05,400 --> 00:05:08,600 Speaker 1: and Jack Smith went up and down the chain at 88 00:05:08,640 --> 00:05:11,400 Speaker 1: DJ talking to this solictener General and others to come 89 00:05:11,480 --> 00:05:14,320 Speaker 1: up with wording that they thought could pass muster. I 90 00:05:14,400 --> 00:05:16,360 Speaker 1: do think at some point, and maybe when there's changes 91 00:05:16,360 --> 00:05:18,720 Speaker 1: in the Supreme Court, that this decision will be reversed, 92 00:05:18,760 --> 00:05:22,120 Speaker 1: just like others in the dustbin of history have been reversed, 93 00:05:22,120 --> 00:05:25,520 Speaker 1: like Plasy versus Ferguson Kramatsu. There are a line of 94 00:05:25,560 --> 00:05:28,120 Speaker 1: dispad decisions that have been reversed over the years, and 95 00:05:28,120 --> 00:05:29,800 Speaker 1: I think this will be one of them because they 96 00:05:29,839 --> 00:05:32,680 Speaker 1: took something that doesn't exist, presidential unity. I mean, before 97 00:05:32,680 --> 00:05:35,839 Speaker 1: this opinion, presidential community existed in the civil context, but 98 00:05:35,839 --> 00:05:38,600 Speaker 1: not the criminal context. And the way they broad it 99 00:05:38,680 --> 00:05:42,520 Speaker 1: gave the executive branch unprecedented powers, powers that never existed before. 100 00:05:42,600 --> 00:05:44,960 Speaker 1: And it is set forth all this confusion that not 101 00:05:45,040 --> 00:05:48,240 Speaker 1: only can you not prosecute a president for his official duties, 102 00:05:48,240 --> 00:05:51,000 Speaker 1: and they've defined that very broadly. But you can't even 103 00:05:51,160 --> 00:05:55,760 Speaker 1: get evidence of unofficial acts criminal unofficial acts by way 104 00:05:55,960 --> 00:05:59,000 Speaker 1: of his official duties, meaning that you can't go and 105 00:05:59,120 --> 00:06:03,320 Speaker 1: interview the Derment of Justice officials to find out that 106 00:06:03,640 --> 00:06:06,599 Speaker 1: the president may have sold pardons for bribes. Right, So 107 00:06:06,839 --> 00:06:09,760 Speaker 1: the way they've done is not just hurt prosecutors when 108 00:06:09,800 --> 00:06:12,560 Speaker 1: they can't prosecute a president for official acts, but they 109 00:06:12,600 --> 00:06:15,240 Speaker 1: have kneecap prosecutors in their investigations. 110 00:06:15,680 --> 00:06:18,839 Speaker 3: Let's talk about what happens next. There's a hearing before 111 00:06:18,960 --> 00:06:22,640 Speaker 3: Judge chuckk In next week. Do you anticipate the defense 112 00:06:22,800 --> 00:06:27,840 Speaker 3: objecting to the superseding indictment? And then we'll have more motions, 113 00:06:28,080 --> 00:06:30,479 Speaker 3: more hearings, more appeals. 114 00:06:30,760 --> 00:06:33,680 Speaker 1: Delay is their middle name. They're going to keep pursuing delays. 115 00:06:33,680 --> 00:06:36,920 Speaker 1: They're going to say that this superseding indictment was meant 116 00:06:36,960 --> 00:06:40,360 Speaker 1: to influence the election and it should be delayed. This 117 00:06:40,440 --> 00:06:43,120 Speaker 1: is election interference, which is ironic because Trump is being 118 00:06:43,160 --> 00:06:46,320 Speaker 1: accused of election interference. And they'll find creative ways to 119 00:06:46,360 --> 00:06:50,760 Speaker 1: say that the indictment still violates the Supreme Courts mandates 120 00:06:50,800 --> 00:06:53,560 Speaker 1: in the immunity decision, and then once they get a 121 00:06:53,600 --> 00:06:56,160 Speaker 1: negative ruling from Judge chuck In, they're going to appeal it. 122 00:06:56,240 --> 00:06:57,880 Speaker 1: And yeah, they just want to force all this as 123 00:06:57,920 --> 00:07:00,480 Speaker 1: much as possible. Ideally for them, they want this trial 124 00:07:00,839 --> 00:07:03,880 Speaker 1: to take place half past never and they'll get what 125 00:07:03,880 --> 00:07:05,800 Speaker 1: they want. If Trump gets elected, Trump will just tell 126 00:07:05,880 --> 00:07:08,760 Speaker 1: his new attorney general to dismiss everything. But if Trump 127 00:07:08,800 --> 00:07:10,960 Speaker 1: loses in November, then this will be the first trial 128 00:07:11,080 --> 00:07:12,680 Speaker 1: that he faces after the election. 129 00:07:13,040 --> 00:07:17,760 Speaker 3: The Supreme Court directed Judge Chuckkin to determine which allegations 130 00:07:17,800 --> 00:07:21,760 Speaker 3: in the indictment involved official acts by Trump. Do you 131 00:07:21,760 --> 00:07:26,160 Speaker 3: think she can decide whether this superseding indictment comports with 132 00:07:26,200 --> 00:07:29,600 Speaker 3: the Supreme Court's decision without calling any witnesses. 133 00:07:30,040 --> 00:07:32,600 Speaker 1: That's a really good question, because a lot of us 134 00:07:32,680 --> 00:07:35,920 Speaker 1: expected her to have a mini trial, which would be 135 00:07:36,040 --> 00:07:38,320 Speaker 1: an airing of the evidence. Mike Pence would get on 136 00:07:38,400 --> 00:07:40,280 Speaker 1: the stand and it would be really compelling, and it 137 00:07:40,320 --> 00:07:42,560 Speaker 1: would happen before the election, and the public would learn 138 00:07:42,600 --> 00:07:45,920 Speaker 1: about Trump's involvement before, during, and after January sixth, even 139 00:07:45,920 --> 00:07:48,320 Speaker 1: though there would be no trial until after the election. 140 00:07:48,400 --> 00:07:50,880 Speaker 1: But according to recent reports, Jack Smith and his team 141 00:07:51,000 --> 00:07:53,520 Speaker 1: are not going to push forward for a mini trial. Ultimately, 142 00:07:53,520 --> 00:07:56,360 Speaker 1: it's up to Judge Chuckin to decide. Judge Chuckkin could 143 00:07:56,400 --> 00:07:59,000 Speaker 1: decide that she can make these decisions based on the 144 00:07:59,000 --> 00:08:02,600 Speaker 1: paperwork completing. You don't need verbal testimony, but it will 145 00:08:02,600 --> 00:08:04,000 Speaker 1: be up to the judge to the side. And then 146 00:08:04,040 --> 00:08:05,880 Speaker 1: the question is when would it happen. When it happen 147 00:08:05,920 --> 00:08:08,320 Speaker 1: before the election or after? These are the questions. I 148 00:08:08,360 --> 00:08:11,320 Speaker 1: think that you can do a mini trial before the election. Ultimately, 149 00:08:11,440 --> 00:08:13,640 Speaker 1: the decision on whether to have a mini trial should 150 00:08:13,640 --> 00:08:15,400 Speaker 1: be based on the evidence of the law and should 151 00:08:15,400 --> 00:08:17,560 Speaker 1: have nothing to do with politics. You shouldn't be concerned 152 00:08:17,600 --> 00:08:19,640 Speaker 1: that there's an election around the corner, and you shouldn't 153 00:08:19,680 --> 00:08:21,600 Speaker 1: be concerned that people are going to interpret it as 154 00:08:21,640 --> 00:08:24,120 Speaker 1: being political, because whether you do or you don't, you're 155 00:08:24,160 --> 00:08:26,520 Speaker 1: going to be accused of weaponizing the Department of Justice, 156 00:08:26,560 --> 00:08:29,080 Speaker 1: even though you're not. So you just follow the evidence 157 00:08:29,080 --> 00:08:30,600 Speaker 1: of the law and tune out the noise. 158 00:08:30,760 --> 00:08:33,680 Speaker 3: But there is so much noise. Dave, Let's turn out 159 00:08:33,679 --> 00:08:37,240 Speaker 3: to Florida. The Special councils ask in the Eleventh Circuit 160 00:08:37,360 --> 00:08:41,800 Speaker 3: to reinstate the classified documents case, saying that Trump appoint 161 00:08:41,880 --> 00:08:45,959 Speaker 3: d Judge Aileen Cannon's decision to throw the case out 162 00:08:46,280 --> 00:08:50,280 Speaker 3: runs counter to precedent rulings by judges across the country. 163 00:08:50,760 --> 00:08:54,679 Speaker 3: History and the long standing practices of the Justice Department 164 00:08:54,960 --> 00:08:58,040 Speaker 3: remind us about Canon's decision dismissing the case. 165 00:08:58,440 --> 00:09:01,800 Speaker 1: Judge Cannon made such a bizarre decision that it went 166 00:09:01,840 --> 00:09:05,440 Speaker 1: against all precedents, and I think will almost certainly be 167 00:09:05,520 --> 00:09:08,480 Speaker 1: overruled by the Eleventh Circuit. Cannon's best chance to keep 168 00:09:08,520 --> 00:09:10,440 Speaker 1: this on the books would be if the Supreme Court 169 00:09:10,480 --> 00:09:13,640 Speaker 1: decides to weigh in and then does something radical like 170 00:09:13,640 --> 00:09:16,040 Speaker 1: they did in the immunity case. Clarence Thomas has already 171 00:09:16,040 --> 00:09:19,240 Speaker 1: issued a concurring opinion that provided a roadmap for Judge 172 00:09:19,240 --> 00:09:21,280 Speaker 1: Cannon to rule the way she did, But no other 173 00:09:21,440 --> 00:09:24,240 Speaker 1: justice signed on his concurring opinion, So I suspect the 174 00:09:24,240 --> 00:09:27,520 Speaker 1: Supreme Court would not even go along with her approach. 175 00:09:28,000 --> 00:09:29,640 Speaker 1: I mean, I'm old enough to remember a guy named 176 00:09:29,720 --> 00:09:33,200 Speaker 1: Robert Mueller, and Robert her and David Weiss. These are 177 00:09:33,240 --> 00:09:36,120 Speaker 1: all special counsels in recent years, and there was no 178 00:09:36,480 --> 00:09:39,640 Speaker 1: issue whether they could remain because of the constitutionality of 179 00:09:39,679 --> 00:09:42,360 Speaker 1: their appointment. Judge Cannon applied a different set of rules 180 00:09:42,400 --> 00:09:45,559 Speaker 1: to Jack Smith and she'll be overruled for it. Then 181 00:09:45,600 --> 00:09:48,079 Speaker 1: the big question is will the Eleventh Circuit remove her 182 00:09:48,120 --> 00:09:50,559 Speaker 1: from the case. I know Jack Smith would want that, 183 00:09:50,800 --> 00:09:52,960 Speaker 1: he did not ask for it specifically, but the Eleventh 184 00:09:52,960 --> 00:09:55,520 Speaker 1: Circuit has the power to do it on its own. 185 00:09:55,679 --> 00:09:57,200 Speaker 1: Don't know if they're going to do it yet, but 186 00:09:57,320 --> 00:09:59,320 Speaker 1: maybe that day will come well, I think is one. 187 00:09:59,200 --> 00:10:03,040 Speaker 3: Of the best lines from Smith's brief is quote from 188 00:10:03,080 --> 00:10:05,760 Speaker 3: before the creation of the Department of Justice until the 189 00:10:05,760 --> 00:10:10,320 Speaker 3: modern day, attorneys general have repeatedly appointed special and independent 190 00:10:10,360 --> 00:10:15,800 Speaker 3: counsels to handle federal investigations, including the prosecution of Jefferson Davis, 191 00:10:15,880 --> 00:10:20,880 Speaker 3: alleged corruption in federal agencies, including the Department of Justice itself, Watergate, 192 00:10:21,000 --> 00:10:24,520 Speaker 3: and beyond. His argument covers the legal landscape. 193 00:10:24,760 --> 00:10:29,120 Speaker 1: The president is a special councils are legit, they're legal 194 00:10:29,200 --> 00:10:33,120 Speaker 1: under the law, their inferior officer, and an Attorney General 195 00:10:33,120 --> 00:10:36,959 Speaker 1: can appoint them, whether it's Archibald Cox or Robert Mueller. 196 00:10:37,000 --> 00:10:39,600 Speaker 1: And over the years have been different statutes in place, 197 00:10:39,679 --> 00:10:43,200 Speaker 1: and the statutes may have not been re enacted or repealed, 198 00:10:43,240 --> 00:10:46,319 Speaker 1: but special councils remain. And there's never been any court 199 00:10:46,440 --> 00:10:48,800 Speaker 1: that has looked at this issue because courts have. There's 200 00:10:48,800 --> 00:10:51,120 Speaker 1: never been a court that is said, yeah, it's an 201 00:10:51,200 --> 00:10:53,439 Speaker 1: unconstitutional appointment. You have to be confirmed by the Senate. 202 00:10:53,520 --> 00:10:56,600 Speaker 1: It's never happened. It didn't happen with Clinton and Kenneth Starr, 203 00:10:56,679 --> 00:10:59,719 Speaker 1: it didn't happen with Nixon and Archibald Coxino. In fact, 204 00:10:59,760 --> 00:11:01,960 Speaker 1: in the cases, Supreme Court did weigh in on this 205 00:11:02,280 --> 00:11:05,600 Speaker 1: and indicta meaning and just extra language in the opinion 206 00:11:05,600 --> 00:11:08,240 Speaker 1: that they did say that the stuffal Council was legit. 207 00:11:08,360 --> 00:11:11,439 Speaker 1: The way that he was appointed was okay. And so 208 00:11:11,559 --> 00:11:15,400 Speaker 1: this goes against president for years put a Supreme Court president. 209 00:11:15,559 --> 00:11:17,880 Speaker 1: And so that's why I'm very confident that Judge Cannon 210 00:11:18,200 --> 00:11:19,360 Speaker 1: is going to be overturned. 211 00:11:19,679 --> 00:11:22,440 Speaker 3: Of course, it's unlikely that we'll even get through the 212 00:11:22,440 --> 00:11:26,760 Speaker 3: Eleventh Circuits process before the election. So whether or not 213 00:11:26,800 --> 00:11:31,680 Speaker 3: these cases go forward depends on who's elected president. Thanks 214 00:11:31,720 --> 00:11:35,920 Speaker 3: so much, Dave. That's Palm Beach County State Attorney Dave Arenberg. 215 00:11:36,160 --> 00:11:39,640 Speaker 3: Coming up next on The Bloomberg Law Show. Republican state 216 00:11:39,800 --> 00:11:44,280 Speaker 3: sue over a Biden program that would give undocumented immigrants 217 00:11:44,440 --> 00:11:48,360 Speaker 3: married to US citizens a pathway to citizenship. I'm June 218 00:11:48,360 --> 00:11:53,040 Speaker 3: Grosso and you're listening to Bloomberg. Texas and fifteen other 219 00:11:53,120 --> 00:11:56,920 Speaker 3: Republican led states are suing to end a federal program 220 00:11:57,200 --> 00:12:00,760 Speaker 3: that could give half a million undocumented immigrant and married 221 00:12:00,760 --> 00:12:05,000 Speaker 3: to US citizens a pathway to citizenship. Getting legal status 222 00:12:05,040 --> 00:12:08,600 Speaker 3: after marrying a US citizen is actually a long and 223 00:12:08,720 --> 00:12:12,679 Speaker 3: tricky process for people who enter the country illegally. They 224 00:12:12,720 --> 00:12:15,880 Speaker 3: have to first return to their home country before they 225 00:12:15,880 --> 00:12:19,600 Speaker 3: can legally reside in the US, risking years long or 226 00:12:19,679 --> 00:12:24,160 Speaker 3: even permanent separation from their families. President Joe Biden had 227 00:12:24,160 --> 00:12:28,880 Speaker 3: announced the program, called Keeping Families Together in June for. 228 00:12:28,920 --> 00:12:31,600 Speaker 4: Those wives, their husbands, and their children who have lived 229 00:12:31,600 --> 00:12:34,320 Speaker 4: in America for a decade or more but are undocumented. 230 00:12:34,600 --> 00:12:37,240 Speaker 4: This act will allow them to file a paperwork for 231 00:12:37,400 --> 00:12:40,560 Speaker 4: legal status in the United States allow them to work 232 00:12:40,600 --> 00:12:43,120 Speaker 4: while they remain with their families in the United States. 233 00:12:43,520 --> 00:12:46,200 Speaker 3: The states suing to stop the program say that the 234 00:12:46,240 --> 00:12:50,920 Speaker 3: administration bypassed Congress to create a pathway to citizenship for 235 00:12:51,040 --> 00:12:55,960 Speaker 3: quote blatant political purposes. On Monday, a Texas federal judge 236 00:12:56,000 --> 00:12:59,360 Speaker 3: put a fourteen day hold on the program, Although the 237 00:12:59,360 --> 00:13:04,080 Speaker 3: government can continue accepting applications. Joining me is Leon Fresco, 238 00:13:04,280 --> 00:13:06,280 Speaker 3: a partner at Holland and Knight and the head of 239 00:13:06,280 --> 00:13:10,880 Speaker 3: the Justice Department's Office of Immigration Litigation in the Obama administration. 240 00:13:11,280 --> 00:13:12,960 Speaker 3: Leon tell us about the program. 241 00:13:13,240 --> 00:13:17,600 Speaker 5: It's called the Keeping Families Together Program, or it's also 242 00:13:17,640 --> 00:13:21,079 Speaker 5: known as the PIP the Parole in Place program. It's 243 00:13:21,120 --> 00:13:24,160 Speaker 5: a program that the Biden administration put in at the 244 00:13:24,160 --> 00:13:27,040 Speaker 5: same time that it put in its executive order closing 245 00:13:27,080 --> 00:13:30,920 Speaker 5: the border, to balance that out by saying that in 246 00:13:30,920 --> 00:13:33,760 Speaker 5: addition to that provision, there would be a provision that 247 00:13:33,800 --> 00:13:37,360 Speaker 5: would be more compassionate. I would say that people who 248 00:13:37,400 --> 00:13:41,320 Speaker 5: are married to United States citizens but who cannot obtain 249 00:13:41,440 --> 00:13:45,560 Speaker 5: legal status because they crossed the border of the United 250 00:13:45,559 --> 00:13:49,760 Speaker 5: States unlawfully, those individuals will now be able to get 251 00:13:49,840 --> 00:13:52,720 Speaker 5: legal status because the thing that was banning them, which 252 00:13:52,800 --> 00:13:56,240 Speaker 5: was that their admission was not done legally, will be 253 00:13:56,400 --> 00:13:59,600 Speaker 5: cured by this Parole in Place, which will basically say, 254 00:13:59,760 --> 00:14:01,920 Speaker 5: we will now admit you, but we won't make you 255 00:14:01,960 --> 00:14:05,600 Speaker 5: actually come to the border and re enter legally. We'll 256 00:14:05,640 --> 00:14:07,800 Speaker 5: just give you a parole, which is sort of a 257 00:14:07,840 --> 00:14:11,559 Speaker 5: permission slip that says, as of this moment, you've entered 258 00:14:11,559 --> 00:14:14,440 Speaker 5: the United States legally. So now you can go ahead 259 00:14:14,480 --> 00:14:18,280 Speaker 5: and petition for a green card or lawful permanent residence 260 00:14:18,320 --> 00:14:20,640 Speaker 5: as it is known because of your marriage to a 261 00:14:20,720 --> 00:14:21,400 Speaker 5: US A visit. 262 00:14:21,640 --> 00:14:26,840 Speaker 3: So Texas and sixteen Republican led states are suing to 263 00:14:26,960 --> 00:14:29,480 Speaker 3: end the program. What's their main legal attack. 264 00:14:29,760 --> 00:14:32,600 Speaker 5: Well, they have a lot of different theories about why 265 00:14:32,680 --> 00:14:36,960 Speaker 5: this is not a legal program, but basically it comes 266 00:14:37,000 --> 00:14:40,960 Speaker 5: down to that. They say that the parole program that 267 00:14:41,040 --> 00:14:43,800 Speaker 5: the Biden administration has put in is suffering from two 268 00:14:43,920 --> 00:14:48,520 Speaker 5: main legal defects. The first is that the very concepts 269 00:14:48,520 --> 00:14:51,480 Speaker 5: of parole in place. Although it's been used in the past, 270 00:14:51,480 --> 00:14:55,000 Speaker 5: and it was used mostly for the undocumented spousands of 271 00:14:55,000 --> 00:14:58,240 Speaker 5: people in the military, so nobody cared because people didn't 272 00:14:58,360 --> 00:15:00,720 Speaker 5: like the idea that a person in a military could 273 00:15:00,760 --> 00:15:04,280 Speaker 5: have their spouse supportive. So people generally thought that was 274 00:15:04,320 --> 00:15:07,400 Speaker 5: fine and then sue at the time. But now they're 275 00:15:07,440 --> 00:15:10,760 Speaker 5: sort of saying, look, we should revisit this concept of 276 00:15:10,880 --> 00:15:13,880 Speaker 5: can you actually be given a parole if you're already 277 00:15:13,920 --> 00:15:17,400 Speaker 5: inside the United States. So that's their first argument is 278 00:15:17,400 --> 00:15:19,920 Speaker 5: that that concept in and of itself is illegal. Now, 279 00:15:19,920 --> 00:15:23,360 Speaker 5: what a parole is is it a permission for someone 280 00:15:23,400 --> 00:15:26,760 Speaker 5: who's at the border, who's outside of the country, who's 281 00:15:26,760 --> 00:15:29,680 Speaker 5: trying to enter, it's a permission to allow them to enter. 282 00:15:30,200 --> 00:15:33,920 Speaker 5: But it's not a document that you can get once 283 00:15:33,960 --> 00:15:37,560 Speaker 5: you're inside the United States. So that's their first argument. 284 00:15:37,880 --> 00:15:41,560 Speaker 5: Their second argument is that in nineteen ninety six, Congress 285 00:15:41,680 --> 00:15:45,800 Speaker 5: dramatically limited the parole authority to a case by case 286 00:15:45,920 --> 00:15:50,640 Speaker 5: basis and upon an urgent humanitarian circumstance. And they're saying 287 00:15:50,680 --> 00:15:53,560 Speaker 5: that neither of those two things applies here because this 288 00:15:53,600 --> 00:15:56,720 Speaker 5: isn't a case by case basis. This is a programmatic 289 00:15:56,880 --> 00:16:00,160 Speaker 5: change where even though the administration is saying, look, look 290 00:16:00,320 --> 00:16:03,360 Speaker 5: there's discretion to deny this on a case by case basis, 291 00:16:03,440 --> 00:16:05,640 Speaker 5: at all decisions shall be made on a case by 292 00:16:05,680 --> 00:16:09,240 Speaker 5: case basis, they're saying there's sort of this wink wink understanding. 293 00:16:09,280 --> 00:16:13,000 Speaker 5: If you meet the criteria for the program, you are 294 00:16:13,320 --> 00:16:15,600 Speaker 5: going to get it. And so they say that violates 295 00:16:15,640 --> 00:16:18,880 Speaker 5: the case by case requirement. And they're saying that, look, 296 00:16:19,040 --> 00:16:21,440 Speaker 5: even if this was case by case, you can only 297 00:16:21,480 --> 00:16:25,880 Speaker 5: grant parole for urgent humanitarian reasons or for a significant 298 00:16:25,920 --> 00:16:28,840 Speaker 5: public benefit. That's the two words that are in the statue. 299 00:16:28,920 --> 00:16:32,440 Speaker 5: One is urgent humanitarian reason, second is significant public benefit, 300 00:16:32,800 --> 00:16:36,520 Speaker 5: and they're saying that neither actually exists here, because all 301 00:16:36,560 --> 00:16:39,440 Speaker 5: this is is an end run around what Congress wanted. 302 00:16:39,600 --> 00:16:43,440 Speaker 5: Congress didn't want people who crossed the border without authorization 303 00:16:43,640 --> 00:16:46,320 Speaker 5: to be able to gain legal status in any way. 304 00:16:46,360 --> 00:16:48,400 Speaker 5: They wanted them to have to leave and have to 305 00:16:48,480 --> 00:16:51,120 Speaker 5: redo it from the outside. And so they're saying it 306 00:16:51,120 --> 00:16:54,479 Speaker 5: could never be an urgent humanitarian reason or a significant 307 00:16:54,480 --> 00:16:57,520 Speaker 5: public benefit to have a parole program whose goal is 308 00:16:57,560 --> 00:16:59,680 Speaker 5: to circumvent the Congress's statue. 309 00:17:00,160 --> 00:17:03,360 Speaker 3: The Republicans who are attacking it say it's essentially a 310 00:17:03,400 --> 00:17:06,920 Speaker 3: form of amnesty for people who broke the law. I mean, 311 00:17:07,080 --> 00:17:10,440 Speaker 3: Biden is giving special privileges to people because they happen 312 00:17:10,480 --> 00:17:13,320 Speaker 3: to be married to US citizens, whereas other people who 313 00:17:13,359 --> 00:17:16,239 Speaker 3: are here who crossed illegally as well, and who've been 314 00:17:16,280 --> 00:17:18,240 Speaker 3: here for the same amount of time and who haven't 315 00:17:18,280 --> 00:17:21,760 Speaker 3: violated the laws, et cetera, et cetera, aren't given this. 316 00:17:21,840 --> 00:17:23,600 Speaker 3: So it does seem a little bit unfaired. 317 00:17:24,040 --> 00:17:26,920 Speaker 5: Whatever word you want to use, amnesty or some other word, 318 00:17:27,440 --> 00:17:30,119 Speaker 5: it is correct to say that people who are currently 319 00:17:30,240 --> 00:17:34,200 Speaker 5: in an unlawful status will if this program survive these 320 00:17:34,320 --> 00:17:37,560 Speaker 5: court cases be allowed to enter not only into just 321 00:17:37,600 --> 00:17:42,280 Speaker 5: the lawful status, but ultimately to lawful permanent residency, and ultimately, 322 00:17:42,680 --> 00:17:46,680 Speaker 5: even after that, potentially US citizenship if this program is 323 00:17:46,720 --> 00:17:49,199 Speaker 5: allowed to continue so long as they were married to 324 00:17:49,400 --> 00:17:51,720 Speaker 5: US citizens. And it is true that all of this 325 00:17:52,040 --> 00:17:53,840 Speaker 5: is sort of being made up on the fly in 326 00:17:53,880 --> 00:17:56,240 Speaker 5: the sense that this requirement that you had to have 327 00:17:56,240 --> 00:17:58,879 Speaker 5: been in the country for ten years, none of this 328 00:17:59,000 --> 00:18:01,240 Speaker 5: is based on anything, just the way they wanted to 329 00:18:01,280 --> 00:18:03,000 Speaker 5: define the program, which is that you have to have 330 00:18:03,040 --> 00:18:05,000 Speaker 5: been here for ten years and you have to be 331 00:18:05,040 --> 00:18:07,480 Speaker 5: married to a US citizen. And you're correct, there's other 332 00:18:07,560 --> 00:18:10,600 Speaker 5: things you could be that could be more compelling or 333 00:18:10,680 --> 00:18:13,760 Speaker 5: less compelling, but this is the concept that they chose. 334 00:18:14,160 --> 00:18:17,280 Speaker 5: And one would say, well, why did they choose this? Well, 335 00:18:17,320 --> 00:18:20,480 Speaker 5: one is because there's an actual US citizen who sort 336 00:18:20,480 --> 00:18:22,840 Speaker 5: of has skin in the game here and that there 337 00:18:22,880 --> 00:18:25,200 Speaker 5: would be harm to that US citizen if they lose 338 00:18:25,240 --> 00:18:29,119 Speaker 5: their spouse due to deportation. But secondly, there is this 339 00:18:29,280 --> 00:18:32,600 Speaker 5: concept that was already in play in its entirety, but 340 00:18:32,680 --> 00:18:34,800 Speaker 5: the only difference was the only people who could take 341 00:18:34,840 --> 00:18:38,000 Speaker 5: advantage of it were spouses of people in the military. 342 00:18:38,240 --> 00:18:40,640 Speaker 5: So now it will be spouses of all US citizens. 343 00:18:40,960 --> 00:18:43,399 Speaker 3: And the Republicans also say that, you know this is 344 00:18:43,720 --> 00:18:47,520 Speaker 3: close to the election, it's blatant the Biden administration is 345 00:18:47,560 --> 00:18:51,080 Speaker 3: playing politics here. I mean, has this idea ever come 346 00:18:51,160 --> 00:18:51,720 Speaker 3: up before? 347 00:18:52,240 --> 00:18:56,280 Speaker 5: Sure, when the military parole program was announced, this was 348 00:18:56,359 --> 00:18:58,960 Speaker 5: the fear of a lot of Republicans. They said, one day, 349 00:18:59,480 --> 00:19:01,920 Speaker 5: somebody going to try to expand this to all US 350 00:19:01,960 --> 00:19:05,320 Speaker 5: citizens spouses, And they will say, because we didn't object 351 00:19:05,359 --> 00:19:06,840 Speaker 5: to it at the time when we did it for 352 00:19:06,920 --> 00:19:10,679 Speaker 5: the military, that we lost our right to object to this, 353 00:19:10,880 --> 00:19:13,440 Speaker 5: and low and behold, some of those people who did 354 00:19:13,440 --> 00:19:16,400 Speaker 5: criticize the program at the time have been proven right 355 00:19:16,480 --> 00:19:19,359 Speaker 5: that that ended up happening, that this program did get expanded. 356 00:19:19,480 --> 00:19:21,879 Speaker 5: But it is also true that no one filed a 357 00:19:21,960 --> 00:19:25,919 Speaker 5: lawsuit or objected to the military parole program at the 358 00:19:25,960 --> 00:19:28,480 Speaker 5: time other than some of the people who do this 359 00:19:28,560 --> 00:19:31,800 Speaker 5: professionally for a living who don't want any programs of 360 00:19:31,880 --> 00:19:34,960 Speaker 5: any kind done. They did say this would happen, and 361 00:19:35,080 --> 00:19:37,600 Speaker 5: so now it has happened. So from the extent of 362 00:19:37,720 --> 00:19:40,919 Speaker 5: has this been considered the idea was, yes, it was 363 00:19:41,000 --> 00:19:43,960 Speaker 5: considered from the day that the military program was announced 364 00:19:43,960 --> 00:19:47,240 Speaker 5: over a decade ago that that would be the potential 365 00:19:47,280 --> 00:19:49,200 Speaker 5: outcome of this, as they would try to do all 366 00:19:49,320 --> 00:19:52,280 Speaker 5: spouses at some point. But was this done as an 367 00:19:52,280 --> 00:19:55,679 Speaker 5: election item? Well, certainly it was done very close to 368 00:19:55,720 --> 00:19:57,399 Speaker 5: the election. It was done at the same time that 369 00:19:57,440 --> 00:20:01,080 Speaker 5: the border was closed to appease people who are criticizing 370 00:20:01,119 --> 00:20:04,000 Speaker 5: that the border was closed. And so there's not an 371 00:20:04,040 --> 00:20:08,080 Speaker 5: immunity to those criticisms because one could point to those 372 00:20:08,119 --> 00:20:11,159 Speaker 5: facts and say this was done for political reasons. In 373 00:20:11,200 --> 00:20:14,840 Speaker 5: any case, the question is what happens now. And the 374 00:20:14,880 --> 00:20:19,560 Speaker 5: administration is taking these applications, and I think both immigration 375 00:20:19,760 --> 00:20:22,320 Speaker 5: lawyers and the clients going through this needs to be 376 00:20:22,400 --> 00:20:25,520 Speaker 5: very careful and needs to decide is this something that 377 00:20:25,720 --> 00:20:29,159 Speaker 5: I want to do? Where if this gets enjoined or 378 00:20:29,200 --> 00:20:32,680 Speaker 5: if the administration changes. And now I've put my name 379 00:20:32,800 --> 00:20:36,679 Speaker 5: forward and I've exposed myself as someone who's here illegally, 380 00:20:36,760 --> 00:20:38,760 Speaker 5: and I've given my address, and I've given all my 381 00:20:38,840 --> 00:20:43,119 Speaker 5: biographical information I could be found immediately. Is that something 382 00:20:43,160 --> 00:20:45,720 Speaker 5: people think is wise to do? So I don't know 383 00:20:45,760 --> 00:20:48,440 Speaker 5: how many people you're going to see applying for this, 384 00:20:48,760 --> 00:20:52,840 Speaker 5: So to that extent, it is potentially a useful political move, 385 00:20:53,119 --> 00:20:54,960 Speaker 5: but a political move done the less. 386 00:20:55,080 --> 00:20:58,240 Speaker 3: To estimate that about half a million people could be eligible. 387 00:20:58,520 --> 00:21:01,840 Speaker 3: Factor that in, so, what do you think how strong 388 00:21:02,160 --> 00:21:05,560 Speaker 3: are the Republican States arguments against this program? 389 00:21:05,840 --> 00:21:10,280 Speaker 5: The arguments about the way you read the statute are 390 00:21:10,280 --> 00:21:12,479 Speaker 5: now going to be viewed along the lines of no 391 00:21:12,680 --> 00:21:16,080 Speaker 5: deference to the administration any longer as we now know. 392 00:21:16,720 --> 00:21:19,719 Speaker 5: And so the question is does the statute, when you 393 00:21:19,720 --> 00:21:22,359 Speaker 5: have a plane reading of it, permit this type of 394 00:21:22,440 --> 00:21:26,120 Speaker 5: parole in place? And that's ultimately going to come down 395 00:21:26,160 --> 00:21:28,760 Speaker 5: to one judge in Texas well. First there will be 396 00:21:28,800 --> 00:21:31,360 Speaker 5: the standing question, and the standing question will be very 397 00:21:31,400 --> 00:21:35,040 Speaker 5: interesting because the most likely way that the States will 398 00:21:35,080 --> 00:21:38,280 Speaker 5: lose here is in the standing question, which they've lost 399 00:21:38,520 --> 00:21:42,600 Speaker 5: recently in other lawsuits, because the argument would be why 400 00:21:42,640 --> 00:21:45,159 Speaker 5: would it be a problem to take people who are 401 00:21:45,200 --> 00:21:48,000 Speaker 5: here unlawfully and make them legal? What harm does the 402 00:21:48,040 --> 00:21:50,640 Speaker 5: suits of the states, and the state is saying, well, 403 00:21:50,720 --> 00:21:53,200 Speaker 5: five years from now, we may need to give benefits 404 00:21:53,240 --> 00:21:56,680 Speaker 5: to these people when they're eligible for benefits. But interestingly, 405 00:21:57,280 --> 00:22:00,680 Speaker 5: there's a thing in the law called an affiday of support, 406 00:22:01,119 --> 00:22:03,920 Speaker 5: which says that if you're sponsoring someone for a marriage 407 00:22:03,920 --> 00:22:06,960 Speaker 5: based screen card, you actually have to prevent them from 408 00:22:07,040 --> 00:22:10,240 Speaker 5: getting benefits, meaning you have to pay for whatever it 409 00:22:10,320 --> 00:22:13,000 Speaker 5: is they need under the law. So it actually will 410 00:22:13,040 --> 00:22:17,440 Speaker 5: be very interesting to see on standing. If the state loses, 411 00:22:17,520 --> 00:22:20,520 Speaker 5: that's the most likely way the state will lose. But 412 00:22:20,840 --> 00:22:24,320 Speaker 5: if they can survive the standing issue, then the question 413 00:22:24,480 --> 00:22:28,080 Speaker 5: is going to be will a judge first in Texas 414 00:22:28,119 --> 00:22:31,320 Speaker 5: and the Fifth Circuit then the Supreme Court decides by 415 00:22:31,400 --> 00:22:34,560 Speaker 5: looking at this statue just the plane language without any difference. 416 00:22:34,800 --> 00:22:38,240 Speaker 5: Two things, is parole something you can actually do is 417 00:22:38,320 --> 00:22:41,440 Speaker 5: inside the United States? It'll be hard to make that argument. 418 00:22:41,560 --> 00:22:46,399 Speaker 5: I don't know a very clear statutory reference that says 419 00:22:46,440 --> 00:22:49,560 Speaker 5: you can grant parole already inside the United States, as 420 00:22:49,560 --> 00:22:52,640 Speaker 5: opposed to that something that's happening at the border. Now, 421 00:22:52,680 --> 00:22:55,439 Speaker 5: that problem theoretically can be fixed by making everyone in 422 00:22:55,520 --> 00:22:58,520 Speaker 5: this program just check in at the border and come back. 423 00:22:58,760 --> 00:23:01,040 Speaker 5: So that would sort of be a victory for the 424 00:23:01,080 --> 00:23:04,920 Speaker 5: States if they ended up winning that, but fair enough. 425 00:23:05,359 --> 00:23:07,520 Speaker 5: But then the second one that I think they more 426 00:23:07,600 --> 00:23:10,439 Speaker 5: want to win on is that there isn't a significant 427 00:23:10,480 --> 00:23:14,119 Speaker 5: public benefit or an urgent humanitarian reason for doing this, 428 00:23:14,720 --> 00:23:16,720 Speaker 5: And I think that's where the rubber is going to meet. 429 00:23:16,720 --> 00:23:19,280 Speaker 5: The road, and that's literally just going to be the 430 00:23:19,359 --> 00:23:22,520 Speaker 5: opinion of the judges, because if there's no difference, then 431 00:23:22,560 --> 00:23:25,720 Speaker 5: the judges have to decide is this an urgent humanitarian 432 00:23:25,760 --> 00:23:29,240 Speaker 5: reason or a significant public benefit or isn't it? And 433 00:23:29,520 --> 00:23:32,119 Speaker 5: I think that's going to be a very interesting question 434 00:23:32,320 --> 00:23:34,639 Speaker 5: which will just be in the eye of the beholders, 435 00:23:35,000 --> 00:23:36,160 Speaker 5: and the beholder. 436 00:23:35,720 --> 00:23:38,879 Speaker 3: Will be a Texas judge. And then the very conservative 437 00:23:38,960 --> 00:23:42,840 Speaker 3: Fifth Circuit now Judge Campbell Barker, who issued the fourteen 438 00:23:42,960 --> 00:23:47,200 Speaker 3: day stay, said he decided on it after undertaking a 439 00:23:47,240 --> 00:23:51,600 Speaker 3: first blush review of the merits of the state's arguments. Quote, 440 00:23:51,680 --> 00:23:55,520 Speaker 3: the claims are substantial and warrant closer consideration than the 441 00:23:55,520 --> 00:23:58,200 Speaker 3: court has been able to afford to date. So we'll 442 00:23:58,200 --> 00:24:01,520 Speaker 3: see what the judge does after the fourteen days. Thanks 443 00:24:01,520 --> 00:24:04,840 Speaker 3: so much. Leon. That's Leon Fresco of Holland and Knight, 444 00:24:05,000 --> 00:24:07,439 Speaker 3: coming up next on the Bloomberg Law Show. He was 445 00:24:07,480 --> 00:24:11,640 Speaker 3: a famous rich La lawyer, made even more famous by 446 00:24:11,640 --> 00:24:14,600 Speaker 3: the movie Erin Brockovich and as the husband of one 447 00:24:14,640 --> 00:24:18,240 Speaker 3: of the real housewives of Beverly Hills. But Tom Girardi, 448 00:24:18,560 --> 00:24:22,920 Speaker 3: now eighty five, broke and suffering from dementia, is facing 449 00:24:23,000 --> 00:24:27,280 Speaker 3: prison time after being convicted of stealing millions from his clients. 450 00:24:27,600 --> 00:24:30,919 Speaker 3: That's next. I'm June Grosso and you're listening to Bloomberg. 451 00:24:31,560 --> 00:24:36,199 Speaker 6: Mister Girardi was no champion of justice. In fact, he 452 00:24:36,280 --> 00:24:41,120 Speaker 6: was a perpetrator of injustice, victimizing his own clients when 453 00:24:41,119 --> 00:24:43,560 Speaker 6: they were most vulnerable and most in need. 454 00:24:43,920 --> 00:24:48,359 Speaker 3: Tom Girardi has gone from famous legal heavyweight to disgrace 455 00:24:48,640 --> 00:24:53,439 Speaker 3: disbarred lawyer to convicted felon. Girardi was catapulted into the 456 00:24:53,520 --> 00:24:57,399 Speaker 3: national limelight after the two thousand Oscar winning movie Aaron 457 00:24:57,440 --> 00:25:00,800 Speaker 3: Brockovich showcased his role in getting a more than three 458 00:25:00,880 --> 00:25:04,639 Speaker 3: hundred million dollars settlement from PG and E for poisoning 459 00:25:04,640 --> 00:25:06,560 Speaker 3: a California town's drinking water. 460 00:25:07,000 --> 00:25:08,919 Speaker 7: In the interest of putting this whole thing to rest, 461 00:25:09,359 --> 00:25:11,680 Speaker 7: PG and he is willing to offer the Jensens two 462 00:25:11,800 --> 00:25:13,360 Speaker 7: hundred and fifty thousand dollars for. 463 00:25:13,320 --> 00:25:16,320 Speaker 4: Their own two hundred and fifty thousand. 464 00:25:17,480 --> 00:25:21,400 Speaker 7: In terms of land value out in Hinckley. Mister Masori Leaffield, 465 00:25:21,400 --> 00:25:22,560 Speaker 7: that's a more than fair price. 466 00:25:23,320 --> 00:25:26,359 Speaker 4: How about in terms of medical expenses, two hundred and 467 00:25:26,400 --> 00:25:28,520 Speaker 4: fifty thousand isn't going to come close to what this 468 00:25:28,600 --> 00:25:30,320 Speaker 4: family is going to have to spend on doctors. 469 00:25:30,400 --> 00:25:33,800 Speaker 3: He was hailed as a pioneer of toxic tort litigation, 470 00:25:34,320 --> 00:25:39,200 Speaker 3: known for getting massive settlements for his clients. This season 471 00:25:39,280 --> 00:25:42,960 Speaker 3: on the Real Housewives of Beverly Hills, and his fame 472 00:25:43,080 --> 00:25:47,200 Speaker 3: was enhanced as the husband bank rolling the extravagant lifestyle 473 00:25:47,440 --> 00:25:51,080 Speaker 3: of one of the Real Housewives of Beverly Hills. His wife, 474 00:25:51,200 --> 00:25:52,040 Speaker 3: Erica Girardi. 475 00:25:52,359 --> 00:25:55,879 Speaker 5: I'm an enigma wrapped in a riddle and cash. 476 00:25:56,119 --> 00:26:00,359 Speaker 3: But US attorney Martina Strada says Girardi fun did that 477 00:26:00,440 --> 00:26:04,359 Speaker 3: extravagance by embezzling tens of millions of dollars from his 478 00:26:04,480 --> 00:26:07,240 Speaker 3: clients in a ten year Ponzi scheme. 479 00:26:07,280 --> 00:26:11,320 Speaker 6: That mister Giardi chose to take advantage those very same clients, 480 00:26:11,760 --> 00:26:15,800 Speaker 6: those vulnerable people, the ones who'd gone through traumatic incidents 481 00:26:15,840 --> 00:26:17,800 Speaker 6: in order to enrich himself. 482 00:26:17,800 --> 00:26:22,120 Speaker 3: A Los Angeles jury agreed and convicted Girardi of four 483 00:26:22,240 --> 00:26:25,760 Speaker 3: counts of wire fraud. So now at age eighty five 484 00:26:25,920 --> 00:26:29,679 Speaker 3: and suffering from dementia, the ones high powered lawyer is 485 00:26:29,760 --> 00:26:34,440 Speaker 3: facing jail time. Joining me is Bloomberg Law correspondent Maya Spodo, 486 00:26:34,680 --> 00:26:38,440 Speaker 3: who covered the trial. Maya how did the prosecution present 487 00:26:38,480 --> 00:26:40,080 Speaker 3: its case against Girardi. 488 00:26:40,320 --> 00:26:44,440 Speaker 8: So the prosecution's case started rooted in the testimonies of 489 00:26:45,000 --> 00:26:49,240 Speaker 8: these clients who's missing funds made up the backbone of 490 00:26:49,320 --> 00:26:52,840 Speaker 8: the charges against Girardi. And so the first witness we 491 00:26:52,880 --> 00:26:58,320 Speaker 8: heard from was Joseph Rugomez. His home exploded and his 492 00:26:58,480 --> 00:27:02,560 Speaker 8: body was covered in and his girlfriend died in the explosion, 493 00:27:02,720 --> 00:27:05,360 Speaker 8: and so we saw him limp up to the witness 494 00:27:05,400 --> 00:27:10,359 Speaker 8: stand and explain how Girardi used these excuses such as 495 00:27:10,400 --> 00:27:14,840 Speaker 8: a fake six point five percent interest accruing savings accounts 496 00:27:15,080 --> 00:27:17,760 Speaker 8: and the sake excuse that he needed approval from a 497 00:27:17,840 --> 00:27:22,239 Speaker 8: judge to justify stalling these payments to Rugoma. And we 498 00:27:22,320 --> 00:27:27,600 Speaker 8: heard these excuses get echoed throughout the remaining clients who testified. 499 00:27:27,920 --> 00:27:32,320 Speaker 8: These excuses became ridiculous. There was one excuse that Girardi 500 00:27:32,520 --> 00:27:35,760 Speaker 8: used where he said he was having the funds held 501 00:27:35,840 --> 00:27:38,680 Speaker 8: up because he was working on a tax issue which 502 00:27:38,680 --> 00:27:41,800 Speaker 8: would tax women more than men on certain personal injury 503 00:27:41,840 --> 00:27:44,480 Speaker 8: settlements and he needed to work that out with the irs. 504 00:27:44,520 --> 00:27:46,800 Speaker 8: And even a lawyer at the firm who was freshly 505 00:27:46,840 --> 00:27:49,000 Speaker 8: out of law school and had just passed the bar 506 00:27:49,160 --> 00:27:52,000 Speaker 8: spotted that excuse and said that makes no sense. And 507 00:27:52,080 --> 00:27:55,240 Speaker 8: so we started the case hearing about these excuses and 508 00:27:55,280 --> 00:27:57,840 Speaker 8: the pain that they caused for clients. And then the 509 00:27:57,920 --> 00:28:02,840 Speaker 8: prosecutors presented their detailed paths where they followed the money, 510 00:28:03,119 --> 00:28:06,480 Speaker 8: and we heard from the federal government on what these 511 00:28:06,520 --> 00:28:09,399 Speaker 8: client trust bake accounts really looked like and where the 512 00:28:09,440 --> 00:28:11,920 Speaker 8: funds were going. So that's how we got into more 513 00:28:11,920 --> 00:28:14,040 Speaker 8: of the lavish lifestyle part of the case. 514 00:28:14,240 --> 00:28:18,360 Speaker 3: Fans of the Real Housewives know about that extravagant lifestyle. 515 00:28:18,520 --> 00:28:20,239 Speaker 3: How much did the jury learn about it? 516 00:28:20,760 --> 00:28:25,560 Speaker 8: Sure saw so much money being used to purchase different 517 00:28:25,600 --> 00:28:29,920 Speaker 8: categories of luxury items, such as two private jets. Girardi 518 00:28:29,960 --> 00:28:34,000 Speaker 8: purchased expensive jewelry. We saw a check written directly out 519 00:28:34,000 --> 00:28:36,520 Speaker 8: of one of the client trust accounts for seven hundred 520 00:28:36,520 --> 00:28:40,760 Speaker 8: and fifty thousand dollars to pay for diamond earrings for 521 00:28:41,120 --> 00:28:44,920 Speaker 8: his now estranged wife, who is Erica Jane. We also 522 00:28:45,080 --> 00:28:50,000 Speaker 8: saw how funds were taken from Gerardi Keith to pay 523 00:28:50,120 --> 00:28:54,440 Speaker 8: for Girardi's memberships and country clubs. One of the lawyers 524 00:28:54,480 --> 00:28:59,360 Speaker 8: at the firm charged property taxes to his Girardi Keith 525 00:28:59,480 --> 00:29:04,640 Speaker 8: American Express card, and we also heard details about the 526 00:29:04,760 --> 00:29:09,520 Speaker 8: lavish parties that were hosted on the company's dime, which 527 00:29:09,600 --> 00:29:13,360 Speaker 8: had six figure entertainment budgets. There was a Super Bowl 528 00:29:13,400 --> 00:29:17,560 Speaker 8: party where lawyers were given as goodie bags their own 529 00:29:17,800 --> 00:29:21,920 Speaker 8: personal jerseys, and all of these parties were being hosted 530 00:29:21,960 --> 00:29:24,960 Speaker 8: while some clients who were in immense pain still were 531 00:29:25,000 --> 00:29:28,000 Speaker 8: not receiving all of the settlement funds that they were doe. 532 00:29:28,120 --> 00:29:33,280 Speaker 3: The testimony of the client victims was very emotional at times. 533 00:29:33,600 --> 00:29:35,920 Speaker 3: Tell us about the most compelling testimony. 534 00:29:36,200 --> 00:29:38,760 Speaker 8: So the one that I found most compelling, and also 535 00:29:38,920 --> 00:29:42,040 Speaker 8: the first client witness that one of the jurors named 536 00:29:42,040 --> 00:29:46,560 Speaker 8: when he spoke to reporters after the decision was Erica Saldana's. 537 00:29:47,000 --> 00:29:51,080 Speaker 8: She showed up to court actually with COVID and had 538 00:29:51,080 --> 00:29:54,800 Speaker 8: to testify remotely, but she was sobbing for much of 539 00:29:54,840 --> 00:29:57,680 Speaker 8: her testimony. Had to push up her glasses towarde away 540 00:29:57,720 --> 00:30:01,000 Speaker 8: her tears because she was crying so hard. Her very 541 00:30:01,040 --> 00:30:05,840 Speaker 8: young son was immobilized after a drunk driver crashed into 542 00:30:06,280 --> 00:30:10,280 Speaker 8: Saldana's car, and she turned to Gerardi Keis for representation, 543 00:30:10,880 --> 00:30:14,160 Speaker 8: but she never received from the firm the entire amount 544 00:30:14,160 --> 00:30:16,760 Speaker 8: of her settlement, which she needed to purchase an accessible 545 00:30:16,760 --> 00:30:19,720 Speaker 8: home for her son, and so Saldana spoke of how 546 00:30:19,760 --> 00:30:22,480 Speaker 8: she spent the last year of her son's life chasing 547 00:30:22,520 --> 00:30:25,160 Speaker 8: down Girardi to ask for the money she needed, and 548 00:30:25,240 --> 00:30:28,400 Speaker 8: at one point Girardi even called her while she was 549 00:30:28,440 --> 00:30:30,920 Speaker 8: in the hospital with her son and accused her of 550 00:30:31,040 --> 00:30:35,240 Speaker 8: not being sympathetic to Girardi's own health issues he was having. 551 00:30:35,440 --> 00:30:39,760 Speaker 8: He said, I cancer surgery, and she said, how can 552 00:30:39,800 --> 00:30:42,320 Speaker 8: you accuse me of not being sympathetic to health issues? 553 00:30:42,360 --> 00:30:43,200 Speaker 8: My son is dying. 554 00:30:43,840 --> 00:30:48,760 Speaker 3: And the jury heard Girardi's own voice in voicemail messages 555 00:30:49,000 --> 00:30:51,160 Speaker 3: giving his clients these excuses. 556 00:30:51,680 --> 00:30:54,200 Speaker 8: Yes, one of the common refrains that he would say 557 00:30:54,240 --> 00:30:56,760 Speaker 8: to clients was don't be bad to me. Don't be 558 00:30:56,920 --> 00:31:00,480 Speaker 8: mad at me. I'm a good guy. He would tell clients, 559 00:31:00,600 --> 00:31:04,920 Speaker 8: including Joe Rogomez, that he loved their family. This was 560 00:31:05,160 --> 00:31:08,840 Speaker 8: one of the most important cases to him. He would, 561 00:31:09,080 --> 00:31:11,720 Speaker 8: even into the late years of the firm, send these 562 00:31:11,720 --> 00:31:14,760 Speaker 8: detailed messages where he got the facts of the case right. 563 00:31:14,800 --> 00:31:16,880 Speaker 8: He knew who he was talking to, and he was 564 00:31:16,960 --> 00:31:19,480 Speaker 8: just saying, please, you know, don't be mad at me. 565 00:31:19,600 --> 00:31:22,080 Speaker 8: The payments are coming later. Here are the reasons why 566 00:31:22,080 --> 00:31:22,880 Speaker 8: they're being held up. 567 00:31:23,240 --> 00:31:26,320 Speaker 3: So the prosecutors say it was a Ponzi scheme, how 568 00:31:26,360 --> 00:31:27,280 Speaker 3: did they show that? 569 00:31:27,640 --> 00:31:32,680 Speaker 8: They basically showed how they said clients three settlement funds 570 00:31:33,000 --> 00:31:36,440 Speaker 8: were used to pay off client two settlement funds which 571 00:31:36,480 --> 00:31:39,920 Speaker 8: were used to pay off client one settlement funds, And 572 00:31:40,360 --> 00:31:44,440 Speaker 8: they had an IRS agent present an analysis of bank 573 00:31:44,560 --> 00:31:48,200 Speaker 8: records from the firm's client trust accounts which showed how 574 00:31:48,360 --> 00:31:51,920 Speaker 8: the settlements from later in the twenty tens were used 575 00:31:52,080 --> 00:31:56,000 Speaker 8: to pay a client whose settlement was made in twenty thirteen. 576 00:31:56,600 --> 00:31:59,719 Speaker 8: And the firms client trust accounts are subject to these 577 00:31:59,840 --> 00:32:03,800 Speaker 8: rules that are very strict, where you can't commingle funds 578 00:32:03,840 --> 00:32:05,840 Speaker 8: and you can't have a negative balance in the account, 579 00:32:05,960 --> 00:32:09,040 Speaker 8: otherwise it would alert the state bar. But these transfers 580 00:32:09,080 --> 00:32:09,880 Speaker 8: happened anyway. 581 00:32:10,400 --> 00:32:13,960 Speaker 3: The defense tried to shift the blame to Christopher Comone, 582 00:32:14,000 --> 00:32:17,800 Speaker 3: the former chief financial officer of the law firm, saying 583 00:32:17,840 --> 00:32:21,040 Speaker 3: he was the one responsible for the loss of client funds, 584 00:32:21,280 --> 00:32:25,560 Speaker 3: not Girardi. He's going to be tried separately in January. 585 00:32:26,240 --> 00:32:27,680 Speaker 3: Why didn't that defense work? 586 00:32:28,320 --> 00:32:32,960 Speaker 8: It wasn't successful because the prosecutors emphasized in closings that 587 00:32:33,360 --> 00:32:37,320 Speaker 8: they have substantial evidence against Comone and that he is 588 00:32:37,360 --> 00:32:39,440 Speaker 8: a co defendant in the case and he will see 589 00:32:39,440 --> 00:32:42,440 Speaker 8: his day in court. The defense spent a lot of 590 00:32:42,480 --> 00:32:46,560 Speaker 8: time going through records of how Comone used Gerarti Keith's 591 00:32:46,560 --> 00:32:51,320 Speaker 8: funds to pay essentially shell companies that were either companies 592 00:32:51,520 --> 00:32:55,000 Speaker 8: where Comone had a leadership role or he was closely 593 00:32:55,040 --> 00:32:59,200 Speaker 8: affiliated with members of these companies. And they also described 594 00:32:59,280 --> 00:33:02,600 Speaker 8: how he he paid twenty thousand dollars a month from 595 00:33:02,640 --> 00:33:07,120 Speaker 8: the firm to his then fiance she testified, and he 596 00:33:07,200 --> 00:33:10,120 Speaker 8: purchased lavish trips for the two of them. And so 597 00:33:10,440 --> 00:33:13,160 Speaker 8: the picture that the defense was trying to paint was 598 00:33:13,200 --> 00:33:18,320 Speaker 8: that Chris Comone was basically taking advantage of Girardi's declining 599 00:33:18,360 --> 00:33:21,920 Speaker 8: mental state and taking these funds out from under his nose. 600 00:33:22,040 --> 00:33:24,040 Speaker 8: But the jury didn't ultimately. 601 00:33:23,800 --> 00:33:28,240 Speaker 3: Buy that Girardi is suffering from dementia and is currently 602 00:33:28,320 --> 00:33:32,200 Speaker 3: living in the memory ward of a nursing home. So 603 00:33:32,600 --> 00:33:36,239 Speaker 3: I was very surprised that he took the stand, was 604 00:33:36,240 --> 00:33:37,760 Speaker 3: his testimony coherent. 605 00:33:38,360 --> 00:33:41,280 Speaker 8: Everyone in the audience was shocked. It was a surprise 606 00:33:41,440 --> 00:33:45,160 Speaker 8: move he got upon the stand, and at first it 607 00:33:45,280 --> 00:33:49,400 Speaker 8: seemed like this was just something that has been programmed 608 00:33:49,440 --> 00:33:52,840 Speaker 8: into him from years of being this formidable trial lawyer. 609 00:33:53,080 --> 00:33:56,120 Speaker 8: He had all the instincts. He smiled at the jury, 610 00:33:56,400 --> 00:33:59,360 Speaker 8: he addressed them when he spoke, he made jokes, He 611 00:33:59,400 --> 00:34:02,520 Speaker 8: tried to banter with the prosecutor, but it became clear 612 00:34:02,520 --> 00:34:04,960 Speaker 8: as he was speaking that he was getting some pretty 613 00:34:05,000 --> 00:34:08,360 Speaker 8: important facts wrong. He said that he thought that Girardi 614 00:34:08,440 --> 00:34:11,520 Speaker 8: Keith Law firm was still running when it closed down 615 00:34:11,560 --> 00:34:14,880 Speaker 8: and went into bankruptcy several years ago. And he also 616 00:34:14,920 --> 00:34:17,400 Speaker 8: said he didn't know his own lawyer's name and the 617 00:34:17,520 --> 00:34:20,840 Speaker 8: exact quote. This was the last question that his defender 618 00:34:21,000 --> 00:34:24,279 Speaker 8: asked him. Sam Croft said, Tom, what's my name? And 619 00:34:24,320 --> 00:34:28,439 Speaker 8: Girardi said, I have no idea. That mean terrible. It's 620 00:34:28,480 --> 00:34:29,080 Speaker 8: one of those. 621 00:34:29,280 --> 00:34:33,200 Speaker 3: Do you think his cognitive decline his dementia made him 622 00:34:33,200 --> 00:34:34,239 Speaker 3: at all sympathetic. 623 00:34:34,760 --> 00:34:38,160 Speaker 8: It was hard to feel sympathy after all of the 624 00:34:38,239 --> 00:34:44,799 Speaker 8: clients explained exactly how this death had ruined their lives. 625 00:34:45,280 --> 00:34:50,000 Speaker 8: I think that the defenders were leaning hard into the 626 00:34:50,120 --> 00:34:54,520 Speaker 8: appeal to jurors who had family members with dementia, which 627 00:34:54,840 --> 00:34:57,399 Speaker 8: my grandmother has dementia, so I was thinking of her. 628 00:34:57,680 --> 00:35:01,800 Speaker 8: But he talked about how his mother, who was a 629 00:35:01,880 --> 00:35:05,759 Speaker 8: lawyer who had dementia for a couple of years and 630 00:35:05,800 --> 00:35:08,200 Speaker 8: eventually had to hang up to hat and he was 631 00:35:08,280 --> 00:35:11,440 Speaker 8: very emotional as he was saying this during closing arguments. 632 00:35:11,480 --> 00:35:14,920 Speaker 8: But ultimately I don't think that that appeal worked. 633 00:35:14,880 --> 00:35:18,120 Speaker 3: Apparently not with the jury at least. Did the prosecution 634 00:35:18,320 --> 00:35:22,799 Speaker 3: acknowledge that Girardi has cognitive issues and how did they 635 00:35:22,840 --> 00:35:23,399 Speaker 3: deal with it? 636 00:35:23,760 --> 00:35:26,120 Speaker 8: Yes, they said, and now it's pretty clear that he 637 00:35:26,160 --> 00:35:29,680 Speaker 8: has cognitive issues. But it's twenty twenty four now, and 638 00:35:30,239 --> 00:35:32,719 Speaker 8: he didn't conduct the scheme in twenty twenty four. It 639 00:35:32,800 --> 00:35:34,520 Speaker 8: was from twenty ten to twenty twenty. 640 00:35:34,840 --> 00:35:37,719 Speaker 3: It was a twelve day trial, and the jury came 641 00:35:37,800 --> 00:35:42,360 Speaker 3: back with guilty verdicts on all counts after just four 642 00:35:42,400 --> 00:35:46,560 Speaker 3: hours of deliberations. Did Girardi react when the verdict was read. 643 00:35:47,160 --> 00:35:50,680 Speaker 8: He did not react as it was read in any 644 00:35:50,880 --> 00:35:55,840 Speaker 8: significant way. But after he was standing up from the 645 00:35:55,960 --> 00:35:59,560 Speaker 8: table and walking out, he had this kind of smile 646 00:35:59,640 --> 00:36:02,840 Speaker 8: on his face that we had seen throughout the trial, 647 00:36:03,040 --> 00:36:06,840 Speaker 8: which I describe as kind of wax in, and he 648 00:36:07,680 --> 00:36:11,680 Speaker 8: walked out pretty steadily. One of the reporters asked him 649 00:36:11,680 --> 00:36:13,760 Speaker 8: if he had comment on the verdict, and he chuckled 650 00:36:13,800 --> 00:36:15,839 Speaker 8: and he said no, no, And. 651 00:36:15,760 --> 00:36:17,960 Speaker 3: Maya, you spoke to one of the jurors who said 652 00:36:18,239 --> 00:36:19,759 Speaker 3: it wasn't a hard decision. 653 00:36:20,360 --> 00:36:23,760 Speaker 8: He said that the facts were all there. We asked 654 00:36:23,800 --> 00:36:26,440 Speaker 8: him if anyone on the jury needed to be convinced, 655 00:36:26,560 --> 00:36:29,799 Speaker 8: and he said no. He's not perhaps representative of the 656 00:36:29,960 --> 00:36:33,080 Speaker 8: entire group of jurors, but he made it sound like 657 00:36:33,120 --> 00:36:35,399 Speaker 8: there was very little resistance inside the room. 658 00:36:35,960 --> 00:36:40,840 Speaker 3: Girardi faces decades in prison when he's sentenced on December sixth, 659 00:36:40,960 --> 00:36:43,880 Speaker 3: and the US attorney said the fact that he's older 660 00:36:44,120 --> 00:36:47,279 Speaker 3: doesn't mean they won't seek prison time. So we'll have 661 00:36:47,320 --> 00:36:50,040 Speaker 3: to see what prosecutors asked for. Thanks so much for 662 00:36:50,040 --> 00:36:53,480 Speaker 3: coming on the show, Maya. That's Bloomberg Law correspondent Mayas 663 00:36:53,560 --> 00:36:55,960 Speaker 3: Bodo And that's it for this edition of the Bloomberg 664 00:36:56,080 --> 00:36:59,120 Speaker 3: Law Podcast. Remember you can always get the latest legal 665 00:36:59,200 --> 00:37:03,520 Speaker 3: news my subscript and listening to the show on Apple Podcasts, Spotify, 666 00:37:03,800 --> 00:37:07,640 Speaker 3: and at Bloomberg dot com, Slash podcast, Slash Law. I'm 667 00:37:07,719 --> 00:37:10,160 Speaker 3: June Grosso and this is Bloomberg