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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 1: Replacing George this week is my chief financial Officer, Alan Weiselberg.

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Speaker 1: And you think Georgia when you see Alex. Alan Weislberg

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Speaker 1: played a bit role on The Apprentice, but he'll be

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Speaker 1: the star of the criminal trial of the Trump organization,

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Speaker 1: albeit a reluctant one. Weiselberg was the company CFO, the

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Speaker 1: money man for decades, and now he'll testify for the

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Speaker 1: prosecution against the company he's still employed by as prosecutors

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Speaker 1: try to prove the Trump organization routinely lowballed its tax

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Speaker 1: exposure by paying senior executives with perks like company cars,

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Speaker 1: unreported cash and rent free apartments. Joining me as Greg Ferrell,

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Speaker 1: Bloomberg Senior Legal reporter. Trump has not been charged personally

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Speaker 1: in the case, but it seems like his presence is

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Speaker 1: looming over the jury selection where all the jurors asked

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Speaker 1: questions about their feelings about Trump. Yes, June absolutely. In fact,

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Speaker 1: the questionnaire that all the potential jurors had to fill

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Speaker 1: out had a number of questions that tried to elicit

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Speaker 1: their feelings about Trump as a person as a politician.

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Speaker 1: Then there's another set of questions that's interesting about whether

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Speaker 1: or not you feel that corporations have an obligation to

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Speaker 1: pay their fair share of taxes. So you can usually

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Speaker 1: reverse engineer these questionnaires into what interests each set of

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Speaker 1: lawyers had, And obviously the lawyers for the Trump corporation

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Speaker 1: wanted to see how deep the biases, and I saw

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Speaker 1: a clear example of it. All the jurors say to

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Speaker 1: the question, can you render a fair and impartial verdict

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Speaker 1: based on the evidence, And they all say yes to

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Speaker 1: varying degrees of certainty. But one guy, it was clear

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Speaker 1: that he was not a Trump fan. One of the

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Speaker 1: lawyers for the Trump organization asked him, well, why do

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Speaker 1: you think you can be fair then, and he said, listen,

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Speaker 1: the guy has no morals. He's a criminal, he's a fraud,

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Speaker 1: but he's caused so much damage in such a art

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Speaker 1: scale that something like this kind of a small potatoes case,

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Speaker 1: I could be fair in that. So obviously he did

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Speaker 1: not make the cut. He was struck from the panel.

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Speaker 1: But some jurors who are not fans of Trump were

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Speaker 1: put on the jury, so they're not looking for a

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Speaker 1: juror who has no feelings about Trump, because I don't

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Speaker 1: think they could find that. No, I don't think there's

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Speaker 1: like find five people in the United States of America,

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Speaker 1: you know, above the age of eighteen who have no

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Speaker 1: opinion of Trump. That would be impossible. But there's a

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Speaker 1: certain amount of strategy that goes on with selecting the

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Speaker 1: jury as well, and that is one Trump lawyers to

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Speaker 1: know that on the island of Manhattan it's a fairly

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Speaker 1: severe eight twenty or even split between you know, the

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Speaker 1: anti Trump, deep blue liberal state feelings and Trump supporters.

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Speaker 1: And they've got a limited number of peremptory challenges. So

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Speaker 1: I think they realized they're gonna have to settle some

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Speaker 1: people who are not Trump fans but strike them as

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Speaker 1: reasonably reliable that they can follow the evidence. So that

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Speaker 1: I think is their game right now. I thought this

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Speaker 1: was odd. The prosecutors told prospective jurors that the government

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Speaker 1: star witness may be reluctant to answer questions, so they're

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Speaker 1: taken on the Weiselberg factor right away. Yes, And in

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Speaker 1: the voar deer process, there's first of all, just the

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Speaker 1: answering of the questions on the jury questionnaires. You find

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Speaker 1: out what the potential jurors political views might be, or

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Speaker 1: just other things like basic facts about married, single native

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Speaker 1: New Yorker blah blah blah. But then going to the

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Speaker 1: next level, this is interesting. At state court you have

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Speaker 1: a representative of the d AS office speak for about

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Speaker 1: thirty minutes, and it's kind of like a was like

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Speaker 1: a game show. He now knows a lot about the

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Speaker 1: eighteen jurors who was sitting in the box, and he

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Speaker 1: can call him my name and say, like, you mentioned

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Speaker 1: something yesterday, sir about you ran a business. Can you

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Speaker 1: tell me more about that? And do you think it's

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Speaker 1: fair for a business like you can actually engage with that.

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Speaker 1: As part of his presentation also is to prepare the jury,

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Speaker 1: the potential whole jury for what the case will be,

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Speaker 1: which is not like a sexy thing with lots of videos,

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Speaker 1: but it's gonna be very dry, account and driven, lots

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Speaker 1: of spreadsheets and receipts and things like that, and tax

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Speaker 1: forms are going to be up on the board. So

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Speaker 1: to that end, he also wanted to prepare the potential

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Speaker 1: jury for the fact that, yes, we have someone who

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Speaker 1: played guilty to these crimes and he might not be

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Speaker 1: a fourth right with you as he should because you know,

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Speaker 1: internal pressure. A guy who's worked for the organization for

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Speaker 1: his career, you know, might have difficulty, having marinated in

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Speaker 1: that culture for decades, have difficulties stepping out of it

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Speaker 1: and giving you a full answer. And he says you

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Speaker 1: can credit that. Use your common sense, you know, as

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Speaker 1: to whether not believe someone is telling the truth, or

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Speaker 1: if they've been pressured, or if they're just trying to

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Speaker 1: avoid answering something. What is Weisselberg's position. He's not cooperating

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Speaker 1: with the prosecution, but he's testifying for them in their

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Speaker 1: case against the Trump organization. I mean, where is good question?

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Speaker 1: He is not necessarily cooperating with the d a's investigation

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Speaker 1: of Donald Trump the person. However, once a last minute

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Speaker 1: attempt to get this case grown out in early August

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Speaker 1: failed and it was going to go to trial, you know,

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Speaker 1: he did the math and made a very rational decision,

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Speaker 1: and he and his lawyers reached to deal with the

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Speaker 1: d a's office. If I plead guilty to the charges

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Speaker 1: you've been filed, can you cap my jail time at

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Speaker 1: five months? And the prosecutors agreed to it, and as

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Speaker 1: part of that agreement, he has to testify truthfully at trial.

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Speaker 1: So there's a bit of risk here for the d

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Speaker 1: a's office. However, if Weislberg abides by that and testifies

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Speaker 1: truthfully and he's asked about whether or not any of

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Speaker 1: these perks went to Trump family members, you know, A,

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Speaker 1: I think they'll be able to prove that because they

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Speaker 1: have the documentation. But B who knew about it and

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Speaker 1: did the recipients know that this is something that probably

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Speaker 1: would cause problems on taxes? That is probably going to

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Speaker 1: be the most interesting part of the trial, his testimony

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Speaker 1: and that fine line that he's trying to straddle between

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Speaker 1: not cooperating against Donald Trump because he's not been cast

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Speaker 1: out of Trump Land yet and because he's on leave

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Speaker 1: abbs that I think Trump is paying his legal bills.

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Speaker 1: So it's a very delicate dance. It's not some bowl

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Speaker 1: plea deal with cooperation. For those who are not aware

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Speaker 1: of his Trump family connection. To tell us a little

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Speaker 1: bit about Weisselberg, well, it goes back to Trump's father,

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Speaker 1: Fred Trump. Fred Trump is the founder of the Trump

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Speaker 1: real estate dynasty or success story. Starting in nineteen seventy three,

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Speaker 1: he was working for Fred Trump's organization in accounting and

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Speaker 1: eventually through the eighties, moved up in as Donald Trump

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Speaker 1: game to take over the business. In the ninety nineties,

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Speaker 1: you know, became Trump's guy controller and eventually CFO of

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Speaker 1: the Trump Organization and a number of its subsidiaries. So

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Speaker 1: he's been a the CFO of the Trump Organization for

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Speaker 1: at least twenty five years. If you remember the TV

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Speaker 1: show The Apprentice, he would show up sometimes as in

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Speaker 1: the serious demeanors the Trump put the family out to

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Speaker 1: present the serious business that America was introduced to through

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Speaker 1: that show. So, um, he's been basically his entire career,

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Speaker 1: his adult life, and his wealth and he's become wealthy

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Speaker 1: because he's been paid well, comes through Trump and the

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Speaker 1: Trump Organization and Donald Trump. So that's another factor. About

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Speaker 1: a year ago I worked on a story about what

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Speaker 1: were the odds with the weisl word would flip and cooperate,

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Speaker 1: you know, his choice was facing X number of years

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Speaker 1: you know in prison. But on the other side, it

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Speaker 1: would be like not only turning on his boss, you know,

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Speaker 1: who had treated him well and paid him well over

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Speaker 1: so many years, but also it would be repudiating his

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Speaker 1: entire life and career. That would be very difficult to psychologically,

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Speaker 1: like his entire career, not just he had this job

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Speaker 1: for two years and decided that, you know, the hell

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Speaker 1: of h I'm gonna I'm gonna wrap him out. But no,

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Speaker 1: since nineteen seventy three, we're coming up in a fifty

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Speaker 1: years that he's been employed by the family. It's not

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Speaker 1: something you can just look in the mirror and say, well,

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Speaker 1: I guess I was a fraud. No one could do that. Yeah, So,

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Speaker 1: is this trial just going to be about the perks

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Speaker 1: that were not reported to the I R S or

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Speaker 1: New York state authorities? Is that all it's about? The perks,

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Speaker 1: the cars, you know, the apartment, the hiding of conferensation

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Speaker 1: as you know, bonuses and some stuff like that, and

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Speaker 1: also the tax implications. So part of this case is

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Speaker 1: a tax case. It's surprisingly small dollar It's done sort

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Speaker 1: of like in pennies and dimes and quarters, so that

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Speaker 1: in the case of Weislberg, he had to pay back,

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Speaker 1: you know, back taxes and stuff one point seven six

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Speaker 1: million dollars, Like that's a lot to you and me,

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Speaker 1: but you know, over the course of time, over twenty years,

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Speaker 1: except it's not too large, and the SAME's truth of

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Speaker 1: the Trump organization. If the Trump corporation is convicted by

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Speaker 1: the jury, then the estimate of the total financial penalty

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Speaker 1: because no one's going to jail. Uh, there's no defendant left.

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Speaker 1: No human being would be sent to jail. But for

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Speaker 1: corporations found guilty, the total fines would be less than

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Speaker 1: two million dollars. So I mean, in some ways it

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Speaker 1: would have caused Trump a lot less to just pay

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Speaker 1: the fines of one point five million, admit to some

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Speaker 1: limited misconduct, and save all the money spending on his lawyers. Now.

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Speaker 1: But but he's you know, congenitally, you know, unable, I think,

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Speaker 1: to strike that kind of deal. And he loves having

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Speaker 1: his lawyers fight firm and they're going to fight well.

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Speaker 1: So that's another dynamic here. So do you think that

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Speaker 1: there'll be a glimpse into how this Trump organization? You know,

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Speaker 1: they own these marquee properties, but they ran it like

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Speaker 1: a mom and pop store, you know, like the bodega

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Speaker 1: down the corner. One of the like Brian things about

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Speaker 1: Trump was his ability to convince lots of people he

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Speaker 1: was headed this huge global corporation. The Trump organization is

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Speaker 1: essentially a small mom and pop operation. As I think

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Speaker 1: the prosecutor said, or actually even maybe one of the

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Speaker 1: defense lawyers as well. But what this promises is like

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Speaker 1: a glimpse into the inner workings of the most famous

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Speaker 1: American right now is Donald Trump, and the inner workings

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Speaker 1: of his real estate business which launched him. I spoke

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Speaker 1: to a branding expert a couple of weeks ago and

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Speaker 1: asked him, like, what the damage would be if the

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Speaker 1: Trump Corporation is found and convicted, Like, this could be

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Speaker 1: a real blemish on the Trump brand because it's built

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Speaker 1: on real estate success or perceived success and Allan Adamson,

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Speaker 1: the brand expert, said, twenty years ago, yes, Trump was

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Speaker 1: all about New York real estate mogul, making money in

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Speaker 1: New York. But you know, given the events of the

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Speaker 1: last seven years, his success on the political side, he

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Speaker 1: was the president. Like now he's got a completely different

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Speaker 1: base of support and audience. His audience is far more rural,

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Speaker 1: it's much more distributed across the country. And he said,

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Speaker 1: it's actually the opposite. Any conviction of Trump property would

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Speaker 1: be viewed to the lens of everybody's out to get Trump,

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Speaker 1: because he's like sticking it to the man, or he's

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Speaker 1: standing up for He's successfully transformed himself. In fact, this

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Speaker 1: guy told me that a conviction of Trump would be

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Speaker 1: like rocket fuel in terms of fundraising. Think of that,

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Speaker 1: it's sort of upside down. Thanks so much, Greg. That's

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Speaker 1: Bloomberg's Greg Ferrell. Republican Senator Lindsey Graham has been fighting

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Speaker 1: a subpoena to testify before a special grand jury in

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Speaker 1: Georgia since July. Now. He's asking the Supreme Court to intervene,

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Speaker 1: and Justice Clarence Thomas has done that, at least temporarily.

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Speaker 1: Graham is arguing that the Constitution Speech or debate clause

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Speaker 1: shields him from having to testify, but a federal court

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Speaker 1: rejected his arguments and ordered Graham to testify before the

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Speaker 1: grand jury investigating whether then President Donald Trump and others

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Speaker 1: illegally tried to influence the election in the state. That

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Speaker 1: question Graham about two phone calls he made to Georgia's

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Speaker 1: Rathinsburger told CNN he took Graham's question about absentee ballots

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Speaker 1: just an implication that look hard and see how many

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Speaker 1: bouts you could throw out. Graham has dismissed that interpretation

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Speaker 1: how you verify signatures. Why is a senator from South

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Speaker 1: Carolina calling the Secretary of State in Georgia anyway? Because

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Speaker 1: the future of the country hangs into balance. Justice Thomas

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Speaker 1: us about the speech or debate clause. So, the speech

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Speaker 1: or debate clauses in article into the Constitution. It came

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Speaker 1: to us from English history, and specifically it is found

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Speaker 1: in the English Bill of Rights, and it basically is

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Speaker 1: designed to protect legislators in performing their job against intimidation

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Speaker 1: or harassment by the King in England or by officials

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Speaker 1: or courts in this country who might interfere with the

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Speaker 1: legislator's performance of those duties. At least I hear about

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Speaker 1: it very rarely. Is it something that's invoked frequently. It's

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Speaker 1: invoked frequently when legislators get sued, but of course that's

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Speaker 1: not a common event. How broadly has it been interpreted

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Speaker 1: by the Supreme Court? So the Supreme Court has interpreted

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Speaker 1: it more broadly than just the literal language would suggest.

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Speaker 1: The clause said that a legislator can't be questioned in

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Speaker 1: any other place concerning any speech or debate, which sounds

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Speaker 1: like it's just a privilege about what you say when

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Speaker 1: you're participating in legislative deliberations. They have a case where

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Speaker 1: they decided that it covered an investigative act by a

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Speaker 1: Committee of Congress where they issued subpoenas for some bank records.

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Speaker 1: So it goes beyond the literal language to some extent.

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Speaker 1: But they've also limited it to kind of legitimate legislative activities,

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Speaker 1: and they've made clear that there are lots of things

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Speaker 1: that legislators might do that aren't directly tied to performing

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Speaker 1: in their legislative duties, that are not protected by the clause.

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Speaker 1: Actions that are political in nature are not covered. It's

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Speaker 1: legislative actions. Where's the line between those two? Is there

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Speaker 1: a clear line? So? I think there is some ambiguity

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Speaker 1: in certain areas, and then there are other places where

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Speaker 1: the doctrine is fairly clear. So, for instance, if you

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Speaker 1: say something as part of a speech in Congress and

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Speaker 1: somebody thinks that's defamatory, they can't sue you because of

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Speaker 1: the speech your debate clause. But then if you kind

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Speaker 1: of republish those remarks in them out in a newsletter

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Speaker 1: or something like that, then that's no longer protected by

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Speaker 1: the SPEECHI debate clause, and that kind of communication could

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Speaker 1: be the basis for aliabel action in this case, Lindsay Graham,

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Speaker 1: as I understand it, the Fulton County District Attorney wants

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Speaker 1: to question him about a phone call he had with

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Speaker 1: Secretary of State Brad Rathinsburger in which he talked about

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Speaker 1: the counting of the ballots. What is his argument as

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Speaker 1: to why he can't be questioned about that. So he

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Speaker 1: points out that there is at least some Supreme Court

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Speaker 1: case law indicating that investigative activities that are done to

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Speaker 1: support legislative conduct are protected by the speechiy debate clause.

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Speaker 1: And so I mentioned a case in which the Supreme

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Speaker 1: Court said that a committee subpoena from a committee of

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Speaker 1: Congress could not be the basis for a lawsuit because

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Speaker 1: of the clause. Other courts have divided over how broadly

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Speaker 1: that investigatory function expands. And so Lindsey Graham is saying, basically,

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Speaker 1: I was conducting an informal investigation. I was trying to

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Speaker 1: gather information that would support my decision about how to

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Speaker 1: vote on certificate is the electoral result, and that might

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Speaker 1: result in new legislation about the electoral accounting process. And

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Speaker 1: so that's kind of the basis for his argument. I

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Speaker 1: was investigating matters that were going to inform my later

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Speaker 1: activities as a legislator. If Graham is not questioned by

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Speaker 1: the district attorney, how does she or how does anyone

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Speaker 1: know that that's in fact what he was doing and

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Speaker 1: that it wasn't something else. So it's interesting that the

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Speaker 1: district court in the Northern District of Georgia that reviewed

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Speaker 1: this actually said that he is protected by the speech

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Speaker 1: er debate clause to the extent that he was performing

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Speaker 1: investigatory functions. And so the order said that the district

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Speaker 1: Attorney could not ask questions to the extent he was

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Speaker 1: investigating legislative matters. But the order suggested that there were

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Speaker 1: lots of other things he could be questioned about that

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Speaker 1: wouldn't go into that um. And so, you know, you

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Speaker 1: talked about the phone hall with the Georgia Secretary of State.

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Speaker 1: One characterization has been that he was trying to pressure

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Speaker 1: the Secretary of State with regard to what he did

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Speaker 1: on the electoral account. That would not be a legislative activity, presumably,

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Speaker 1: and so questions that went to that rather than investigative

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Speaker 1: matters might be within the permissible scope of the inquiry.

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Speaker 1: The Eleventh Circuit heard this case. The Eleventh Circuit being

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Speaker 1: one of the more conservative circuits in the country, perhaps

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Speaker 1: the second most conservative circuit in the country, and in

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Speaker 1: a panel with two Trump appointees on the panel, said

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Speaker 1: that this could go forward. Can you explain what their

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Speaker 1: reasoning was? So the Court of Appeals panel said that

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Speaker 1: the speech or debate clause only protects legislative activities, that

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Speaker 1: there is some doubt or ambiguity about to what extent

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Speaker 1: it protects informal investigative activities. But even if you assume

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Speaker 1: that those are protected, the District Court gave Lindsey Graham

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Speaker 1: protection against those kinds of questions, and so from their perspective,

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Speaker 1: even if he has a legitimate argument or of the

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Speaker 1: speech or debate clause, the District Court did plenty to

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Speaker 1: offer him protection. Are you surprised then that Justice Thomas

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Speaker 1: issued this day. I'm not surprised by that. I think

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Speaker 1: Senator Graham has a couple of things going for him

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Speaker 1: and then some things that work against him. One of

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Speaker 1: the things going for him is that there is some

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Speaker 1: ambiguity about the extent to which informal investigative activities are

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Speaker 1: covered by the speech to debate clause. And the other

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Speaker 1: is that it's a privilege against being questioned. And so

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Speaker 1: if the Supreme Court is going to do anything, now

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Speaker 1: is probably the time that they would want to take

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Speaker 1: the case. And so I can understand Justice Thomas not

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Speaker 1: wanting to make this decision on his own, wanting to

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Speaker 1: keep the status quo as it is until the other

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Speaker 1: justices have the chance to think about it and weigh

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Speaker 1: in a vote from the whole court. I guess technically

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Speaker 1: he could make the decision on his own, but I

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Speaker 1: would expect in a matter like this, he would refer

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Speaker 1: the issue to the entire nine justice Supreme Court. Is

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Speaker 1: it likely that the Court would take this in a

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Speaker 1: case where I don't see any you know, conflict in

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Speaker 1: the circuits, and you have the Eleventh Circuit unanimously right

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Speaker 1: affirming the District Court judge, and the District Court judge

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Speaker 1: giving as you said, some you know, leeway for Lindsay

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Speaker 1: Graham to object to certain questions. Yeah, and so I

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Speaker 1: think that there could be an argument made that there

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Speaker 1: is disagreement in the circuits about the scope to which

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Speaker 1: informal investigative activities are protected. I'm not sure though, that

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Speaker 1: that will carry the day for Senator Graham, because, as

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Speaker 1: the Eleventh Circuit pointed out, the District Court protected him

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Speaker 1: against questions about anything that could be characterized as informal investigation.

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Speaker 1: And so I think, you know, even if the Supreme

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Speaker 1: Court was convinced that there is an issue that warrants

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Speaker 1: there considered ration, they may decide this is not the

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Speaker 1: case to do it, because it wouldn't really help Senator

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Speaker 1: Graham any more than the District Court already has. You know,

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Speaker 1: I don't know what the Supreme Court will do, but

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Speaker 1: I think this is not the best case they could

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Speaker 1: take to resolve any open questions about the speech or

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Speaker 1: debate clause. Generally, even if you have an issue on

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Speaker 1: which there is a disagreement in the lower courts, you're

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Speaker 1: looking for a case where that issue is going to

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Speaker 1: matter to the particular parties before you. And so even

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Speaker 1: if the Supreme Court kind of took a broad view

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Speaker 1: of informal investigatory powers, um, you know, it's it's not

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Speaker 1: clear that they would be willing to give Senator Graham

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Speaker 1: more relief than he already got on the district Court.

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Speaker 1: There's been some criticism of Justice Thomas for not recusing

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Speaker 1: himself from cases like this covering the elections because his

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Speaker 1: wife is a conservative activist who played a role in

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Speaker 1: the effort to get the votes recounted or to overturned

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Speaker 1: the election. However you want to phrase it, do you

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Speaker 1: think that he should be recusing himself. I don't think

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Speaker 1: just because one has a spouse who has uh, you know,

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Speaker 1: kind of certain political activities that that necessarily means you

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Speaker 1: need to recuse yourself from any case relating to the election.

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Speaker 1: I think, you know, if there were something that came

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Speaker 1: before the court that his wife was involved in, that

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Speaker 1: would be a much much clearer case for accused, I think.

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Speaker 1: And I just want to note that Graham is represented

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Speaker 1: by former White House Counsel Don McGann, who was himself

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Speaker 1: involved in a long court fight over a Congressional subpoena

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Speaker 1: for his testimony related to Special Counsel Robert Muller's investigation

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Speaker 1: of Russian interference in the election, and that fight went

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Speaker 1: on for years. There it's a small world in DC.

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Speaker 1: So yeah, thanks so much Randy for being on the show.

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Speaker 1: That's Professor Randy Back of the University of Georgia School

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Speaker 1: of Law. And that's it for this edition of The

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Speaker 1: Bloomberg Law Show. Remember you can always get the latest

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Speaker 1: them on Apple Podcasts, Spotify, and at www dot Bloomberg

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