WEBVTT - Kalanick Takes the Stand at Uber-Waymo Trial

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

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

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

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

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<v Speaker 1>and on Bloomberg dot com slash podcasts. The stakes are high,

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<v Speaker 1>and so is the drama at the San Francisco trial,

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<v Speaker 1>where Uber is fighting claims by rival Weimo that it

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<v Speaker 1>stole critical technology for driverless cars. The most highly anticipated

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<v Speaker 1>witness took the stand yesterday and had a lot of

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<v Speaker 1>explaining to do. Billionaire Travis Kalenik, Uber's ousted co founder,

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<v Speaker 1>is accused of conspiring with one of Weimo's lead engineers

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<v Speaker 1>to take thousands of proprietary files before he June joined Uber.

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<v Speaker 1>Joining me is Bloomberg News Legal editor Peter Bloomberg. Peter

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<v Speaker 1>tell us the basic questions the jury will have to decide, well,

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<v Speaker 1>the jury is going to have to decide whether Uber

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<v Speaker 1>uh improperly took proprietary information that belonged to Alphabet's self

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<v Speaker 1>driving unit weymo, and specifically Uh. The question is whether

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<v Speaker 1>Uber used trade secrets intellectual property that belonged to weymo,

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<v Speaker 1>So Kalinic took the stand yesterday. What was his demeanor

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<v Speaker 1>as he was being questioned by Weymo's lawyers. Well, yesterday Uh,

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<v Speaker 1>klink was was was cooperative and uh and held himself

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<v Speaker 1>up well, but he tended towards short, sometimes clipped answers.

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<v Speaker 1>And Uh. Today when he was questioned by Uber's attorney, Uh,

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<v Speaker 1>he gave more expansive, lengthier answers. Obviously it's more friendly questions.

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<v Speaker 1>So he feels more comfortable letting loose a bit. Yeah,

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<v Speaker 1>might be a tactic to to keep your answers short. Um.

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<v Speaker 1>In the notes of an in house meeting with the

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<v Speaker 1>head of Uber's driverless car program in December of Klinik

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<v Speaker 1>outlined a list of things he wanted quote source all

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<v Speaker 1>of their data, tagging roadmap, pound of flesh i P.

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<v Speaker 1>How did he explain that, especially all of their data?

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<v Speaker 1>Well yesterday Uh. Again when he was being questioned by

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<v Speaker 1>his adversary's attorneys. Uh, he was on the defensive, and

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<v Speaker 1>he had to explain that sometimes pound of flesh is

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<v Speaker 1>a term he uses. And then when he was asked

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<v Speaker 1>specifically about i P, which is stands for intellectual property. Uh,

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<v Speaker 1>he said that he did not remember using that specific word,

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<v Speaker 1>but he didn't deny it. Then today, when he was

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<v Speaker 1>being questioned by Uber's attorney, he made clear that when

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<v Speaker 1>he said he wanted intellectual property, he wanted the intellectual

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<v Speaker 1>property belonging to Anthony Lewandowski's own startup called Auto. So

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<v Speaker 1>he wasn't, in other words, he wasn't lusting for Weymo's

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<v Speaker 1>intellectual property. Tell us about Anthon Lewandowski, Well, Lewandowski is

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<v Speaker 1>the engineer who's at the center of this dispute. He

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<v Speaker 1>was the rock Star robot car project leader for the

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<v Speaker 1>Weymo unit until January two thousand and sixteen, when he

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<v Speaker 1>left Weymo, and at that very moment, he was already

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<v Speaker 1>forming his own self driving startup called Auto, which was

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<v Speaker 1>then acquired by Uber in August of two thousand and

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<v Speaker 1>sixteen in a six eighty million dollar stock deal. So

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<v Speaker 1>it's the overlap where Lewandowski is transitioning out of Weymo

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<v Speaker 1>and into forming his own company that's ultimately acquired by Uber,

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<v Speaker 1>that is the source of tension that's at the center

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<v Speaker 1>of this case. Stand by one moment, there's some breaking news.

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<v Speaker 1>Senator Lindsey Graham has said that a budget deal has

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<v Speaker 1>been reached and he's all in. We are going to

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<v Speaker 1>have more on that story coming up. So is uh

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<v Speaker 1>Lewandowski going to be testifying at this trial? Well, Lewandowski

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<v Speaker 1>is required to uh go to the witness stand when

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<v Speaker 1>he has called as a witness by Weymo. But um

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<v Speaker 1>he has consistently uh stayed uh quiet, uh silent even

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<v Speaker 1>throughout the year of litigation, asserting his constitutional right against

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<v Speaker 1>self incrimination. Uh and so um he is expected not

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<v Speaker 1>to uh say much on the witness stand, but he

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<v Speaker 1>will be required to tell the jury that he's asserting

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<v Speaker 1>his Fifth Amendment right. So Peter on the whole, how

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<v Speaker 1>has Klinik's testimony been, Well, it's been mixed. Uh certainly

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<v Speaker 1>Weymo has um has scored uh some zingers with uh

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<v Speaker 1>the hill even mountain of circumstantial evidence it has that

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<v Speaker 1>he was conspiring with Levin Daoisi, with Lewandowski even before

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<v Speaker 1>Lewandowski left Weimo. But on the other hand, uh Kalinnik

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<v Speaker 1>has had it has had an opportunity to put uh

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<v Speaker 1>put some of these things into context and put his

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<v Speaker 1>own um less sinister spin on these events. And just

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<v Speaker 1>at about forty five seconds here Uh. The judge is

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<v Speaker 1>well known for being strict. It tell us a little

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<v Speaker 1>bit about what's been happening in the courtroom. Well, the

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<v Speaker 1>judge has has already had to deal with some showdown

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<v Speaker 1>between the attorneys over what evidence will be allowed UH

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<v Speaker 1>into the trial. And these um these conferences usually take

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<v Speaker 1>place out out of the jury's earshot, and the judge

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<v Speaker 1>has to referee uh disputes over what evidence will be

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<v Speaker 1>allowed in. And he has, for instance, ruled that UBER

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<v Speaker 1>cannot block its former ex board member Bill Gurley from

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<v Speaker 1>being questioned about his own criticism of how Travis Kalanak

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<v Speaker 1>handled the acquisition of Lewandowski's auto. And we will have

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<v Speaker 1>to pick this discussion up again because there's a lot

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<v Speaker 1>more of this trial to come. Thanks for your insights, Peter.

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<v Speaker 1>That's Bloomberg News Legal editor, Peter Bloomberg. Will he or

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<v Speaker 1>won't he? Will the President sit down for an interview

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<v Speaker 1>with Special Counsel Robert Muller, as he said he's eager

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<v Speaker 1>to do, or won't he? The range of people saying

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<v Speaker 1>he should not agree to an interview is wide, from

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<v Speaker 1>former Vice President Joe Biden to some of the president's

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<v Speaker 1>own lawyers. That's according to The New York Times, if

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<v Speaker 1>the President refuses, it could set the stage for a

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<v Speaker 1>constitutional showdown at the Supreme Court. Joining me is Jennifer Daskell,

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<v Speaker 1>professor at American University Washington College of Law and founding

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<v Speaker 1>editor of the Just Security blog. Jennifer First, Let's deal

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<v Speaker 1>with the concerns the president's allies and even his own

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<v Speaker 1>lawyer have raised that the Special Council could be setting

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<v Speaker 1>what they call a perjury trap. Explain what that is

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<v Speaker 1>and how likely it is that Muller's team would abuse

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<v Speaker 1>the legal process in that way. So perjury is is

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<v Speaker 1>simply a charge based on lying under oath um. And

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<v Speaker 1>so the you know, as to whether or not there

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<v Speaker 1>is a Trump I mean, it's it's an it's an

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<v Speaker 1>obligation not to lie under oath um, and so, um,

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<v Speaker 1>you know it certainly that can be a charge if

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<v Speaker 1>in fact that happens. But um, you know, I expect

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<v Speaker 1>and hope that the Muler investigation is proceeding um with

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<v Speaker 1>good faith, as it should. Now I want to go

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<v Speaker 1>down the line and deal with all the possibilities if

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<v Speaker 1>Trump declines the interview. The New York Times has reported

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<v Speaker 1>that some members of Trump's legal team believe that Mueller

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<v Speaker 1>would be reluctant to subpoena him. Mueller has a team

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<v Speaker 1>of aggressive prosecutors and he seems to be conducting a

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<v Speaker 1>rigorous investigation. Do you think it likely that he will

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<v Speaker 1>subpoena Trump? So unclear, It's hard to I mean again,

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<v Speaker 1>it's it's hard to predict, especially in the midst of

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<v Speaker 1>a fast moving investigation like this. And it's obviously huge

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<v Speaker 1>risks to having a showdown with the President at this point.

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<v Speaker 1>So if the President refuses UM and he issues a subpoena,

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<v Speaker 1>then UM, as as um you stated in the lead

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<v Speaker 1>up to this, that could that could be something that

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<v Speaker 1>goes all the way up to the Supreme Court, just

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<v Speaker 1>as the subpoena o uhum tapes and and Watergate. Good. So,

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<v Speaker 1>you know, I, my guests, you know, if is that, um,

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<v Speaker 1>Mieler will do everything possible to avoid that because it's

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<v Speaker 1>obviously controversial, it causes delay, UM, it politicizes even more

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<v Speaker 1>the investigation beyond what's been politicized already. UM. But then again,

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<v Speaker 1>if the investigators decide that the testimony that getting getting

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<v Speaker 1>Trump's statements is essential to the case, then we may

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<v Speaker 1>see a subpoena be issued. Hard to say there's precedent

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<v Speaker 1>for a president being subpoena to testify um in a

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<v Speaker 1>criminal investigation with Bill Clinton. But so if there is

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<v Speaker 1>a show down at the Supreme Court, UM are their

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<v Speaker 1>grounds to distinguish this from the Clinton and Nixon cases

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<v Speaker 1>and the dictum that the court issued there. So in

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<v Speaker 1>the in the Nixon case, the the Nixon was was

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<v Speaker 1>ordered to run over the tapes and he ultimately did UM.

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<v Speaker 1>You know, I you know it's again these are fact

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<v Speaker 1>specific inquiries. But you know, if there's a basis for subpoena, UM,

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<v Speaker 1>you know, we'd have to wait and see what happens. UM.

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<v Speaker 1>But I expect that hopefully the president would comply rather

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<v Speaker 1>than um drag this all the way up to the

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<v Speaker 1>Supreme Court. So now if the Supreme Court, let's say

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<v Speaker 1>it is taken to the Supreme Court, If the Supreme

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<v Speaker 1>Court rules that Trump has to appear before the grand jury,

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<v Speaker 1>he could take the Fifth Amendment. How would that affect

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<v Speaker 1>the legal case against him? If at all? So if

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<v Speaker 1>he claimed the Fifth Amendment, UM, he would basically UM.

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<v Speaker 1>Then there would be a choice um the if if

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<v Speaker 1>in fact, the Miler investigation. If the Miller team decided

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<v Speaker 1>to UM insist on his testimony, they could not prosecute

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<v Speaker 1>him based on the statements that he made. UM. So again,

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<v Speaker 1>it depends UM who is the target of the investigation.

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<v Speaker 1>There is an ongoing and active legal debate about whether

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<v Speaker 1>UM it's even possible to criminally charge a sitting president UM.

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<v Speaker 1>A lot of scholars say it's not so. UM. President

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<v Speaker 1>Trump is arguably potentially protected from criminal prosecution UM already UM,

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<v Speaker 1>but aspis study in the fifth UM that would be

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<v Speaker 1>an additional protection. So as far as obstruction of justice charges,

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<v Speaker 1>Mueller would have to establish that Trump acted with corrupt intent?

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<v Speaker 1>Can you do that without interviewing the president? UM? You

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<v Speaker 1>know it's it can be difficult, but it's also possible.

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<v Speaker 1>You know, you don't have to get the statements of

0:11:43.360 --> 0:11:46.319
<v Speaker 1>the individual in order to prove that. So UM there

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<v Speaker 1>could be a whole host of circumstantial evidence of it.

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<v Speaker 1>Not more than circumstantial evidence, but direct evidence, including documents,

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<v Speaker 1>including statements of others. UM. So it's it's possible to

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<v Speaker 1>prove that without UM, without actually getting UM the statements

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<v Speaker 1>from from President Trump himself. Again, as I said, there's

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<v Speaker 1>you know, an ongoing and active debate about whether it's

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<v Speaker 1>sitting president can be criminally charged, so obstruction of justice

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<v Speaker 1>charges to the extent that they are brought or more

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<v Speaker 1>likely to be brought in the course of an impiquement

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<v Speaker 1>proceeding rather than a criminal prosecution. Um. But we we

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<v Speaker 1>you know, there's still there's a whole host of hurdles

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<v Speaker 1>before that, whatever happen as well. Let's turn to the

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<v Speaker 1>memo and the Intelligence Committee, which voted unanimously to release

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<v Speaker 1>the memo. It's now in the president's hands. What is

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<v Speaker 1>he likely to do so unclear. Some statements today suggested that, um,

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<v Speaker 1>they are not likely to release the memo, or if

0:12:47.800 --> 0:12:51.479
<v Speaker 1>they are, they would release it with significant reductions. UM.

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<v Speaker 1>You know this, you know, real concerns here that UM,

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<v Speaker 1>the classification process, that the intelligence um, the access to

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<v Speaker 1>information intelligence information has been used in a politicized way

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<v Speaker 1>in ways that are extremely concerning and plate damaging. The

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<v Speaker 1>New York Times is asking the the FISA Court to

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<v Speaker 1>unsealed the secret documents related to the wired tapping of

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<v Speaker 1>Carter Page. I don't believe that's ever been done before.

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<v Speaker 1>We have about thirty seconds. Is that a possibility anything

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<v Speaker 1>is a possibility. Um, you know, a lot of things

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<v Speaker 1>have happened that I would never have predicted in the past,

0:13:30.240 --> 0:13:32.679
<v Speaker 1>but I think it's highly unlikely. All right. Thank you.

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<v Speaker 1>That's Jennifer Daskell, professor at American University Washington College of

0:13:37.400 --> 0:13:40.400
<v Speaker 1>Law and founding editor of the Just Security Block. Thanks

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<v Speaker 1>for listening to the Bloomberg Law Podcast. You can subscribe

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<v Speaker 1>and listen to the show on Apple Podcasts, SoundCloud, and

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<v Speaker 1>on bloomberg dot com slash podcast. I'm June Basso. This

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<v Speaker 1>is Bloomberg