1 00:00:03,160 --> 00:00:08,000 Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio. 2 00:00:10,520 --> 00:00:13,640 Speaker 1: Last Friday, there was a stunning reversal of the announced 3 00:00:13,680 --> 00:00:17,000 Speaker 1: plea deal for the alleged mastermind of nine to eleven 4 00:00:17,079 --> 00:00:19,960 Speaker 1: and two of his co conspirators. It came in a 5 00:00:20,040 --> 00:00:23,720 Speaker 1: letter from Secretary of Defense Lloyd Austin to the head 6 00:00:23,720 --> 00:00:27,760 Speaker 1: of the US Military Commission in Guantanamo, saying he was 7 00:00:27,800 --> 00:00:31,560 Speaker 1: withdrawing from the three pre trial agreements that she'd signed 8 00:00:31,800 --> 00:00:35,280 Speaker 1: just two days before. That deal would have seen Khalid 9 00:00:35,360 --> 00:00:38,920 Speaker 1: Sheik mohammedan two others plead guilty to the murder of 10 00:00:39,040 --> 00:00:43,040 Speaker 1: two thy nine hundred and seventy six people in exchange 11 00:00:43,080 --> 00:00:46,920 Speaker 1: for a life sentence. Austin has said that's not the 12 00:00:47,040 --> 00:00:47,640 Speaker 1: right move. 13 00:00:48,479 --> 00:00:52,639 Speaker 2: I long believed that the families of the victims are 14 00:00:52,680 --> 00:00:58,400 Speaker 2: service members and the American public deserved the opportunity to 15 00:00:58,480 --> 00:01:04,320 Speaker 2: see military commissions commission trials carry out in this case. 16 00:01:04,720 --> 00:01:07,640 Speaker 1: And many of the nine to eleven families agree with 17 00:01:07,800 --> 00:01:11,640 Speaker 1: Austin and had reacted with anger to the deal. So 18 00:01:11,720 --> 00:01:15,199 Speaker 1: the death penalty is now back on the table. Joining 19 00:01:15,240 --> 00:01:19,360 Speaker 1: me is Palm Beach County State Attorney Dave Arenberg, the 20 00:01:19,400 --> 00:01:23,639 Speaker 1: head of the Military Commission, a retired brigadier general, signed 21 00:01:23,640 --> 00:01:27,960 Speaker 1: a pre trial agreement last Wednesday with three of the 22 00:01:28,080 --> 00:01:31,240 Speaker 1: nine to eleven terrorists. There was an outcry by a 23 00:01:31,240 --> 00:01:35,920 Speaker 1: lot of the family members. Then Secretary of Defense Lloyd 24 00:01:35,959 --> 00:01:39,720 Speaker 1: Austin comes along and says, no, I'm not authorizing it. 25 00:01:40,160 --> 00:01:43,480 Speaker 1: How unusual is it for a deal to be announced 26 00:01:44,200 --> 00:01:47,640 Speaker 1: and then retracted? Right now? I can't think of another 27 00:01:47,760 --> 00:01:48,880 Speaker 1: instance like it. 28 00:01:49,360 --> 00:01:53,160 Speaker 3: This case is unusual because of its magnitude, talking about 29 00:01:53,800 --> 00:01:56,160 Speaker 3: people who are responsible for the death of three thousand 30 00:01:56,200 --> 00:01:58,480 Speaker 3: Americans on nine to eleven, And so when you make 31 00:01:58,480 --> 00:02:00,440 Speaker 3: a deal like this, you have to assume that everyone 32 00:02:00,480 --> 00:02:03,919 Speaker 3: has signed off on it. And I have to believe 33 00:02:04,000 --> 00:02:08,280 Speaker 3: that if Secretary Austin didn't know about it, then he 34 00:02:08,400 --> 00:02:10,280 Speaker 3: should have at the time. And the fact that he 35 00:02:10,680 --> 00:02:12,760 Speaker 3: put the kebash on the deal so quickly after the 36 00:02:12,800 --> 00:02:15,760 Speaker 3: outcry to me makes me think it's a little bit 37 00:02:15,800 --> 00:02:18,240 Speaker 3: about politics. There's an election coming up, and you don't 38 00:02:18,240 --> 00:02:20,600 Speaker 3: want the image of all these families who have endured 39 00:02:20,639 --> 00:02:23,959 Speaker 3: so much to be complaining about the United States government 40 00:02:24,040 --> 00:02:27,120 Speaker 3: selling them out. And in reality, if you want to 41 00:02:27,120 --> 00:02:30,600 Speaker 3: blame an administration for this, though, that's fair, but don't 42 00:02:30,639 --> 00:02:33,120 Speaker 3: blame the Biden administration. You should blame the George W. 43 00:02:33,200 --> 00:02:36,000 Speaker 3: Bush administration who sanctioned torture, and that's what led us 44 00:02:36,000 --> 00:02:36,800 Speaker 3: to where we are today. 45 00:02:37,200 --> 00:02:41,560 Speaker 1: Explain why this case or these cases have been languishing 46 00:02:41,840 --> 00:02:43,680 Speaker 1: for so many years. 47 00:02:44,240 --> 00:02:48,080 Speaker 3: Yeah, KSM was first caught and rested about twenty one 48 00:02:48,160 --> 00:02:51,079 Speaker 3: years ago. I mean, this is outrageous that it's taken 49 00:02:51,120 --> 00:02:55,000 Speaker 3: this long. But when you have confessions elicited by improper means, 50 00:02:55,080 --> 00:02:58,000 Speaker 3: such as torture, that's going to slow down the process, 51 00:02:58,120 --> 00:03:00,600 Speaker 3: and the judge is considering whether or not to throw 52 00:03:00,639 --> 00:03:03,240 Speaker 3: out the confessions. And if you lose the confessions, it 53 00:03:03,280 --> 00:03:04,840 Speaker 3: makes the case that much harder. And I think the 54 00:03:04,880 --> 00:03:08,920 Speaker 3: prosecutors saw that and realized that we could lose this 55 00:03:09,080 --> 00:03:13,080 Speaker 3: case and let's just get what we can and convict 56 00:03:13,120 --> 00:03:15,600 Speaker 3: them and sentence them to life forever. The victms' families 57 00:03:15,600 --> 00:03:17,320 Speaker 3: were not just on one side. It was a mix 58 00:03:17,560 --> 00:03:20,600 Speaker 3: of opinions. Some supported the deal, some opposed it. And 59 00:03:20,680 --> 00:03:23,480 Speaker 3: prosecutors just saw this and they're not politicians, and that's 60 00:03:23,520 --> 00:03:26,400 Speaker 3: why they did this so close to the election, where 61 00:03:26,560 --> 00:03:29,320 Speaker 3: I got to believe the political leader said hey, hey, hey, 62 00:03:29,840 --> 00:03:32,880 Speaker 3: this may be the end result that is necessary if 63 00:03:32,919 --> 00:03:35,920 Speaker 3: the judge throws out the confessions. But until that happens, 64 00:03:36,120 --> 00:03:38,120 Speaker 3: we're not going to enter into the settlement agreement this 65 00:03:38,160 --> 00:03:38,840 Speaker 3: close to an election. 66 00:03:39,400 --> 00:03:44,400 Speaker 1: Well, also, they had rejected the White House or Secretary 67 00:03:44,520 --> 00:03:48,560 Speaker 1: of Defense Austin had rejected a plea deal that was 68 00:03:48,600 --> 00:03:51,440 Speaker 1: talked about in September less September. 69 00:03:51,760 --> 00:03:54,640 Speaker 3: Yeah, it's not clear whether or not the terms of 70 00:03:54,680 --> 00:03:57,360 Speaker 3: that plea deal were accepted by the government in this 71 00:03:57,920 --> 00:04:00,120 Speaker 3: version of it. We don't know whether the garment and 72 00:04:00,160 --> 00:04:04,000 Speaker 3: accepted their demands of no solitary confinement and all these 73 00:04:04,040 --> 00:04:06,360 Speaker 3: other requirements, which I find it hard to believe that 74 00:04:06,400 --> 00:04:08,320 Speaker 3: you would agree to these things if you're going to 75 00:04:08,360 --> 00:04:11,320 Speaker 3: agree to make a deal with the devil, which unfortunately 76 00:04:11,360 --> 00:04:14,120 Speaker 3: happens in the prosecutorial profession. I mean, it's one of 77 00:04:14,120 --> 00:04:16,360 Speaker 3: the toughest things we have to do sometimes to attain 78 00:04:16,640 --> 00:04:18,280 Speaker 3: a measure of justice. But if you're going to agree 79 00:04:18,320 --> 00:04:20,320 Speaker 3: to that, the only thing you're going to give up 80 00:04:20,400 --> 00:04:22,600 Speaker 3: is giving up the death penalty, and you're going to 81 00:04:22,720 --> 00:04:24,719 Speaker 3: want to lock them up in a prison or a 82 00:04:24,800 --> 00:04:28,080 Speaker 3: military prison forever, and you don't want to give many 83 00:04:28,080 --> 00:04:32,640 Speaker 3: special privileges or benefits or make concessions. You've got the 84 00:04:32,760 --> 00:04:35,240 Speaker 3: ace in the whole, which is you've got evidence, and 85 00:04:35,279 --> 00:04:38,360 Speaker 3: you've got the power of the government dealing with enemy combatants. 86 00:04:38,400 --> 00:04:40,360 Speaker 3: And so the only thing I think they would ever 87 00:04:40,360 --> 00:04:42,400 Speaker 3: give up or should give up, would perhaps be the 88 00:04:42,440 --> 00:04:46,000 Speaker 3: death penalty, only because of the fact that if there 89 00:04:46,080 --> 00:04:48,960 Speaker 3: was torture to alicited confession, that does complicate things. 90 00:04:49,480 --> 00:04:52,960 Speaker 1: The defense attorneys called the move corrupt. The defense attorneys 91 00:04:52,960 --> 00:04:55,920 Speaker 1: for the nine to eleven terrorists, we had an unprecedented 92 00:04:55,960 --> 00:04:58,320 Speaker 1: act by a government official to pull back what was 93 00:04:58,360 --> 00:05:02,200 Speaker 1: a valid agreement, and one of the defensive journeys argued 94 00:05:02,279 --> 00:05:05,800 Speaker 1: at a hearing that Austin lacked the authority under the 95 00:05:05,839 --> 00:05:09,680 Speaker 1: military's Manual for Military Commission to scrap the plead deals 96 00:05:09,680 --> 00:05:14,640 Speaker 1: because the alleged chairrists had quote begun very important, substantive, 97 00:05:14,720 --> 00:05:17,240 Speaker 1: specific performance to hold up their end of the deal. 98 00:05:17,600 --> 00:05:19,560 Speaker 1: I have no idea what that possibly could be. 99 00:05:19,640 --> 00:05:23,400 Speaker 3: That means cooperation, that means giving up other people. Remember 100 00:05:23,720 --> 00:05:26,800 Speaker 3: KSM who's the head of this. He was unrepentant, he 101 00:05:26,839 --> 00:05:29,479 Speaker 3: was defiant from the beginning. Well now here he is 102 00:05:29,839 --> 00:05:33,080 Speaker 3: accepting guilt and pleading for mercy and pleading for his life. 103 00:05:33,240 --> 00:05:35,720 Speaker 3: So even if this deal went through, it is a 104 00:05:35,800 --> 00:05:38,440 Speaker 3: victory for the families of the nine to eleven victims 105 00:05:38,480 --> 00:05:42,200 Speaker 3: because they broke this guy finally. But when I hear 106 00:05:42,320 --> 00:05:45,240 Speaker 3: his lawyers saying, hey, we had a deal, we want 107 00:05:45,240 --> 00:05:47,159 Speaker 3: the deal, that makes me, as a prosecutor, think maybe 108 00:05:47,160 --> 00:05:50,360 Speaker 3: the deal wasn't so good. Maybe Secretary Austin did the 109 00:05:50,440 --> 00:05:53,040 Speaker 3: right thing in stopping the deal. My only concern is 110 00:05:53,560 --> 00:05:57,240 Speaker 3: if you lose the confessions because of the torture that 111 00:05:57,360 --> 00:06:00,240 Speaker 3: occurred at secrets AA facilities around the world or a 112 00:06:00,320 --> 00:06:03,880 Speaker 3: camp X ray at GIMO, then it makes this job 113 00:06:03,960 --> 00:06:06,640 Speaker 3: so much harder for prosecutors. And perhaps at that point 114 00:06:06,680 --> 00:06:09,039 Speaker 3: you would have wanted the deal that had been entered into. 115 00:06:09,600 --> 00:06:13,320 Speaker 1: And the prosecutors can't be too happy that a judge 116 00:06:13,320 --> 00:06:17,000 Speaker 1: in the Guantanamo case involving the bombing of the USS 117 00:06:17,200 --> 00:06:20,239 Speaker 1: coal throughout a confession that he said was the product 118 00:06:20,279 --> 00:06:20,920 Speaker 1: of torture. 119 00:06:21,360 --> 00:06:23,400 Speaker 3: That's the problem. See, that's the problem. Like, oh, some 120 00:06:23,520 --> 00:06:26,360 Speaker 3: of the law deserved the death penalty. Khaleauch Sheik Muhammad 121 00:06:26,360 --> 00:06:30,760 Speaker 3: deserves the death penalty, But because the Bush administration had 122 00:06:31,080 --> 00:06:34,440 Speaker 3: allowed torture to occur, it just makes it that much 123 00:06:34,440 --> 00:06:37,440 Speaker 3: more difficult. For prosecutors who cannot elicit confessions based on 124 00:06:37,480 --> 00:06:40,160 Speaker 3: improper means. And not only that, it also hurt the 125 00:06:40,240 --> 00:06:42,920 Speaker 3: United States reputation around the world because it became a 126 00:06:42,960 --> 00:06:47,200 Speaker 3: recruiting tool for jihadis. So for those who support the 127 00:06:47,279 --> 00:06:51,760 Speaker 3: use of torture, it doesn't provide solid confessions. I mean, sadly, 128 00:06:51,800 --> 00:06:53,920 Speaker 3: John McCain's not here anymore. But John McCain was opposed 129 00:06:53,920 --> 00:06:57,679 Speaker 3: to torture because you elicit confessions that are not necessarily truthful, 130 00:06:57,760 --> 00:06:59,799 Speaker 3: just whatever people will say at the time, and also 131 00:07:00,080 --> 00:07:03,080 Speaker 3: damages our reputation around the world, and it really is 132 00:07:03,120 --> 00:07:05,200 Speaker 3: not in line with American values. You don't have to 133 00:07:05,240 --> 00:07:08,800 Speaker 3: use torture to gain evidence to prosecute these people and 134 00:07:08,839 --> 00:07:11,360 Speaker 3: give them the death penalty. And perhaps if the torture 135 00:07:11,440 --> 00:07:14,440 Speaker 3: was not used, these people would have met the ultimate 136 00:07:14,480 --> 00:07:15,239 Speaker 3: penalty already. 137 00:07:15,480 --> 00:07:17,800 Speaker 1: So this was a signed plea deal. The head of 138 00:07:17,800 --> 00:07:21,760 Speaker 1: the US Military Commission signed this plea agreement. Is there 139 00:07:21,800 --> 00:07:27,440 Speaker 1: any legal challenge to Secretary Austin coming in and saying no, 140 00:07:27,680 --> 00:07:28,800 Speaker 1: we're not going to do it. 141 00:07:29,360 --> 00:07:32,960 Speaker 3: I mean, they can try, but Secretary of Defense does 142 00:07:33,040 --> 00:07:35,840 Speaker 3: have the authority to say no to a deal. Now, 143 00:07:35,840 --> 00:07:38,080 Speaker 3: their best argument is that we've already started to perform 144 00:07:38,120 --> 00:07:40,000 Speaker 3: our end of the deal. It's too late to turn back. 145 00:07:40,400 --> 00:07:42,360 Speaker 3: But the deal had just been announced, so I don't 146 00:07:42,400 --> 00:07:44,160 Speaker 3: know what kind of performance they had already done. Did 147 00:07:44,200 --> 00:07:46,239 Speaker 3: he all of a sudden give up every name, and 148 00:07:46,360 --> 00:07:48,760 Speaker 3: so that's going to be I think the decision for 149 00:07:48,800 --> 00:07:50,800 Speaker 3: the court if the court says, yeah, look, he already 150 00:07:50,800 --> 00:07:52,320 Speaker 3: gave us. He gave us all the stuff that we've 151 00:07:52,320 --> 00:07:55,400 Speaker 3: already acted on. But that's impossible. So I think that 152 00:07:56,000 --> 00:07:58,800 Speaker 3: in the end, this is sour grapes by the defense 153 00:07:58,880 --> 00:08:03,400 Speaker 3: lawyers who are just upset that the political blowback caused 154 00:08:03,400 --> 00:08:05,800 Speaker 3: Secretary of Austin to step in and say no, but 155 00:08:05,880 --> 00:08:09,000 Speaker 3: you know what, that's our system, and they're lucky that 156 00:08:09,040 --> 00:08:13,440 Speaker 3: they're not getting justice in some other countries courts overseas, 157 00:08:13,480 --> 00:08:15,920 Speaker 3: where there would be no justice, they'd be their heads 158 00:08:16,080 --> 00:08:17,960 Speaker 3: be taken off immediately. So you know, we have a 159 00:08:18,000 --> 00:08:21,120 Speaker 3: system of the United States, even in military courts, military tribunals, 160 00:08:21,360 --> 00:08:24,600 Speaker 3: that's a lot more fair than what they would get elsewhere. 161 00:08:25,160 --> 00:08:28,480 Speaker 1: It wasn't disclosed where they would serve their sentence, but 162 00:08:28,560 --> 00:08:31,120 Speaker 1: some of the family members were upset if their sentence 163 00:08:31,120 --> 00:08:34,200 Speaker 1: would be served in Guantanamo. They wanted them to serve 164 00:08:34,240 --> 00:08:36,040 Speaker 1: their sentence in a supermax prison. 165 00:08:36,400 --> 00:08:39,680 Speaker 3: There was a lot of political pushback in bringing these 166 00:08:39,760 --> 00:08:43,679 Speaker 3: hardened terrrists to American soil, to our country. When there 167 00:08:43,720 --> 00:08:46,520 Speaker 3: was an attempt by then Attorney General Eric Holder to 168 00:08:46,559 --> 00:08:49,280 Speaker 3: have the trials in the Southern District of New York 169 00:08:49,480 --> 00:08:53,800 Speaker 3: in Manhattan, politicians like Senator Schumer opposed it. They did 170 00:08:53,880 --> 00:08:58,560 Speaker 3: not want these terrorists here in our community. And had 171 00:08:58,559 --> 00:09:01,319 Speaker 3: that happened, had they been tried, you know, they could 172 00:09:01,360 --> 00:09:03,520 Speaker 3: have already been found guilty and been given the death penalty. 173 00:09:03,559 --> 00:09:06,360 Speaker 3: So Eric Holder is saying, you see, this is the 174 00:09:06,400 --> 00:09:08,679 Speaker 3: alternative is you put them in Gitmo, and now you 175 00:09:08,720 --> 00:09:11,520 Speaker 3: don't have true justice. It's been twenty one plus years. 176 00:09:12,200 --> 00:09:15,000 Speaker 3: So as far as where they serve their sentence, I 177 00:09:15,080 --> 00:09:17,400 Speaker 3: think that they will serve it at Gitmo or at 178 00:09:17,440 --> 00:09:21,160 Speaker 3: some military facility, not in the United States, because the 179 00:09:21,200 --> 00:09:24,040 Speaker 3: President has been there that the politicians, the elected officials 180 00:09:24,120 --> 00:09:28,080 Speaker 3: do not want these monsters living amongst us, even in 181 00:09:28,120 --> 00:09:29,040 Speaker 3: a supermax prison. 182 00:09:29,480 --> 00:09:32,400 Speaker 1: Some think that this never will go to trial because 183 00:09:32,440 --> 00:09:34,560 Speaker 1: of all the problems. Do you think it can go 184 00:09:34,600 --> 00:09:35,040 Speaker 1: to trial? 185 00:09:35,200 --> 00:09:38,720 Speaker 3: I think it can, but just incessant delays, and justice 186 00:09:38,720 --> 00:09:41,120 Speaker 3: delayed is justice denied. And tell you this, I know 187 00:09:41,280 --> 00:09:42,760 Speaker 3: a lot of people when they think of Gitmo, they 188 00:09:42,760 --> 00:09:46,240 Speaker 3: think of Camp x Ray where they did torture, miserable facilities. 189 00:09:46,440 --> 00:09:49,080 Speaker 3: About seven years ago, I went to Gimo as an 190 00:09:49,080 --> 00:09:53,480 Speaker 3: observer for some of these hearings of these terrorists, and 191 00:09:53,640 --> 00:09:57,040 Speaker 3: the hearing that I just randomly was watching was one 192 00:09:57,080 --> 00:10:00,800 Speaker 3: where you had someone who was locked up up at 193 00:10:00,800 --> 00:10:04,280 Speaker 3: Gitmo whose lawyer was saying that he deserves to have 194 00:10:04,360 --> 00:10:07,360 Speaker 3: his laptop with Netflix on it. We are a far 195 00:10:07,480 --> 00:10:10,040 Speaker 3: cry from the days of Camp x Ray, when now 196 00:10:10,280 --> 00:10:12,400 Speaker 3: it's a question of whether or not they can have 197 00:10:12,480 --> 00:10:15,040 Speaker 3: Netflix in their cells. And when I saw some of 198 00:10:15,080 --> 00:10:19,120 Speaker 3: the cells, they were I would say even more upscale 199 00:10:19,160 --> 00:10:21,160 Speaker 3: than the ones you see in some of our prisons 200 00:10:21,160 --> 00:10:23,840 Speaker 3: in the United States. In the one facility I saw, 201 00:10:23,960 --> 00:10:26,920 Speaker 3: there was a big arrow on the ground, and the 202 00:10:27,040 --> 00:10:31,200 Speaker 3: arrow is to tell the inmates which way is Mecca, 203 00:10:31,280 --> 00:10:33,800 Speaker 3: so they know where to pray during the day. And 204 00:10:33,880 --> 00:10:36,600 Speaker 3: so that's how far we've come from the days where 205 00:10:36,640 --> 00:10:38,319 Speaker 3: there was waterboarding at Gitmo. 206 00:10:39,240 --> 00:10:43,160 Speaker 1: So jury selection in the trial, which is expected to 207 00:10:43,240 --> 00:10:47,520 Speaker 1: last twelve to eighteen months, wasn't envisioned to start before 208 00:10:47,800 --> 00:10:51,520 Speaker 1: twenty twenty six, and the judge in the case had 209 00:10:51,559 --> 00:10:55,400 Speaker 1: been working toward deciding a series of challenges brought by 210 00:10:55,440 --> 00:10:59,760 Speaker 1: defense lawyers, including whether to exclude the confessions that are 211 00:11:00,040 --> 00:11:02,560 Speaker 1: key to the government's case. So I suppose the next 212 00:11:02,559 --> 00:11:05,400 Speaker 1: thing we'll hear about is whether those confessions will be 213 00:11:05,440 --> 00:11:08,680 Speaker 1: excluded or not. Stay with me, Dave. Coming up next 214 00:11:08,679 --> 00:11:11,320 Speaker 1: on the Bloomberg Lan Show, we'll take a look at 215 00:11:11,320 --> 00:11:14,760 Speaker 1: where the criminal case is against former President Donald Trump. 216 00:11:14,960 --> 00:11:21,560 Speaker 1: Stand you're listening to Bloomberg. Former President Donald Trump was 217 00:11:21,679 --> 00:11:25,360 Speaker 1: charged in four criminal cases to in federal court and 218 00:11:25,360 --> 00:11:28,320 Speaker 1: to in state court. One of those indictments, in the 219 00:11:28,320 --> 00:11:31,760 Speaker 1: New York hush money case, led to the first criminal 220 00:11:31,800 --> 00:11:35,240 Speaker 1: conviction of a former president, but the other cases have 221 00:11:35,360 --> 00:11:39,880 Speaker 1: been stalled, one even dismissed due to successful pre trial 222 00:11:39,960 --> 00:11:43,600 Speaker 1: legal maneuvering by Trump and a controversial decision by the 223 00:11:43,640 --> 00:11:47,920 Speaker 1: Supreme Court unpresidential immunity. And the judge in the hush 224 00:11:47,960 --> 00:11:52,720 Speaker 1: money case has set some new timetables for rulings after 225 00:11:52,760 --> 00:11:56,280 Speaker 1: Trump once again asked him to recuse himself because the 226 00:11:56,360 --> 00:12:00,120 Speaker 1: judge's daughter had worked for Vice President Kamala Harris. Yes, 227 00:12:00,600 --> 00:12:04,240 Speaker 1: I've been talking to Palm Beach County State Attorney Dave Arenberg, 228 00:12:04,760 --> 00:12:08,480 Speaker 1: Dave Judge Juan Mrshan pushed back the date for his 229 00:12:08,679 --> 00:12:16,280 Speaker 1: ruling on presidential immunity until two days before Trump's scheduled sentencing. So, naturally, 230 00:12:16,360 --> 00:12:20,079 Speaker 1: the district attorney has urged the judge to reject Trump's 231 00:12:20,200 --> 00:12:24,320 Speaker 1: argument that his felony conviction should be tossed due to 232 00:12:24,360 --> 00:12:29,080 Speaker 1: presidential immunity. Tell us about the district attorney's arguments, and it. 233 00:12:29,080 --> 00:12:32,480 Speaker 3: Said, no, this immunity decision doesn't apply here because the 234 00:12:32,520 --> 00:12:37,280 Speaker 3: actions you were convicted of took place before you were president, 235 00:12:37,320 --> 00:12:40,160 Speaker 3: and to the extent that there was evidence used from 236 00:12:40,240 --> 00:12:44,199 Speaker 3: aids like Hopepix and Madeline Westerhout while you were president, 237 00:12:44,240 --> 00:12:47,280 Speaker 3: they had nothing to do with official duties. They were 238 00:12:47,280 --> 00:12:52,640 Speaker 3: a continuation of their roles before they became your employees. 239 00:12:53,280 --> 00:12:57,480 Speaker 3: And in any event, even if those witnesses testimony were 240 00:12:57,520 --> 00:13:01,160 Speaker 3: admitted improperly, it was what's called harmless or so even 241 00:13:01,200 --> 00:13:03,120 Speaker 3: if you had Hope Picks testifying and is she shouldn't 242 00:13:03,120 --> 00:13:05,559 Speaker 3: have because of this broad immunity ruling by the Supreme Court, 243 00:13:06,080 --> 00:13:08,160 Speaker 3: it didn't make a difference in the jury's decision. You 244 00:13:08,160 --> 00:13:10,760 Speaker 3: know how we know that. It's because the jury came 245 00:13:10,800 --> 00:13:13,520 Speaker 3: back and asked questions before they came up with a verdict. 246 00:13:13,559 --> 00:13:16,240 Speaker 3: They wanted to hear the testimony back of Michael Cohen 247 00:13:16,520 --> 00:13:19,560 Speaker 3: and of David Pecker. They didn't care about hopepicks what 248 00:13:19,679 --> 00:13:23,680 Speaker 3: she said. Madam Westerhott just gave some basic technical stuff 249 00:13:23,720 --> 00:13:27,880 Speaker 3: like ministerial information. Now, the sentence will happen on the 250 00:13:28,000 --> 00:13:30,040 Speaker 3: day it's supposed to. I think it's September eighteenth, and 251 00:13:30,080 --> 00:13:32,040 Speaker 3: then it will be appealed by Trump and there will 252 00:13:32,040 --> 00:13:35,400 Speaker 3: be delays. He will not serve a day before the election, 253 00:13:35,840 --> 00:13:38,800 Speaker 3: and if he does become president again, he'll find a way, 254 00:13:38,840 --> 00:13:41,400 Speaker 3: I think, to avoid serving any time at all. 255 00:13:41,559 --> 00:13:45,560 Speaker 1: Let's talk about the DC election interference case, because it 256 00:13:45,720 --> 00:13:49,280 Speaker 1: was returned to the trial Judge Tanya Chuckkin last Friday, 257 00:13:49,320 --> 00:13:52,720 Speaker 1: August second, that was one month after the Supreme Court 258 00:13:52,760 --> 00:13:57,480 Speaker 1: issue that game changing ruling on presidential immunity, and then 259 00:13:57,520 --> 00:14:01,320 Speaker 1: on August third, the next day, which was she issued 260 00:14:01,360 --> 00:14:05,640 Speaker 1: her first ruling, refusing Trump's efforts to dismiss the case 261 00:14:05,760 --> 00:14:10,440 Speaker 1: based on accusations that Joe Biden pushed prosecutors to target him. 262 00:14:10,520 --> 00:14:13,319 Speaker 1: Do you think the judge has been working during this 263 00:14:13,480 --> 00:14:15,120 Speaker 1: delay due to the Supreme Court. 264 00:14:16,120 --> 00:14:19,200 Speaker 3: Yeah, she, Jude Shuck is a really good judge, and 265 00:14:19,240 --> 00:14:21,560 Speaker 3: she wanted this case to go, and she was told 266 00:14:21,640 --> 00:14:25,200 Speaker 3: to stand back and stand by by the US Supreme Court. 267 00:14:25,720 --> 00:14:28,200 Speaker 3: And once she was allowed to get the case again, 268 00:14:28,280 --> 00:14:30,640 Speaker 3: she's moving ahead. But it doesn't mean that while there 269 00:14:30,680 --> 00:14:33,080 Speaker 3: was a stay, she wasn't reading up on stuff and 270 00:14:33,240 --> 00:14:36,520 Speaker 3: just preparing. She even said previously she would cancel her 271 00:14:36,560 --> 00:14:39,320 Speaker 3: summer international vacation if that's what it took to try 272 00:14:39,320 --> 00:14:41,160 Speaker 3: the case. Well, she's not going to be able to 273 00:14:41,200 --> 00:14:43,800 Speaker 3: try the case before the election, but she could have 274 00:14:43,840 --> 00:14:48,040 Speaker 3: an evident share hearing to determine whether Trump's actions fall 275 00:14:48,120 --> 00:14:51,680 Speaker 3: under official duties or unofficial duties, and that could embarrass 276 00:14:51,880 --> 00:14:53,840 Speaker 3: Trump because that would be open to the public and 277 00:14:54,120 --> 00:14:56,280 Speaker 3: they would see some of the stuff he did before, during, 278 00:14:56,320 --> 00:14:58,720 Speaker 3: and after January sixth. So it's going to be up 279 00:14:58,760 --> 00:15:01,040 Speaker 3: to her. There's a scheduling order to that's coming out 280 00:15:01,040 --> 00:15:04,880 Speaker 3: of joint scheduling order between trump slawyer's and Jack Smith's team, 281 00:15:05,040 --> 00:15:06,800 Speaker 3: and I think that will give us some indication of 282 00:15:06,800 --> 00:15:08,920 Speaker 3: where this is headed. I do think there will be 283 00:15:08,960 --> 00:15:11,960 Speaker 3: action in this case before the election, whether it's a 284 00:15:12,000 --> 00:15:14,320 Speaker 3: full evidence you're hearing like a mini trial as some 285 00:15:14,360 --> 00:15:16,520 Speaker 3: of us wanted. Not sure yet. We'll know a lot 286 00:15:16,520 --> 00:15:17,080 Speaker 3: more tomorrow. 287 00:15:17,320 --> 00:15:20,520 Speaker 1: She's also scheduled in August sixteenth status conference. 288 00:15:20,920 --> 00:15:23,440 Speaker 3: Yeah, so she's moving forward. See Trump would just like 289 00:15:23,480 --> 00:15:25,440 Speaker 3: the throws under the rugs. They postponed this till after 290 00:15:25,480 --> 00:15:29,040 Speaker 3: the election, or postponed it until half past never. But 291 00:15:29,480 --> 00:15:32,440 Speaker 3: she's moving ahead. And she had to be a little 292 00:15:32,480 --> 00:15:34,760 Speaker 3: perturbed because she was all set to go with this 293 00:15:34,840 --> 00:15:37,320 Speaker 3: case and then saw how the Supreme Court not only 294 00:15:37,360 --> 00:15:39,960 Speaker 3: did they bigfoot her and step in and put the 295 00:15:40,000 --> 00:15:42,120 Speaker 3: cabash on it, but they had a chance back in 296 00:15:42,160 --> 00:15:45,320 Speaker 3: December to intervene and they refuse to do so. So 297 00:15:45,360 --> 00:15:48,400 Speaker 3: they let the DC Circuit Court of Appeals rule, which 298 00:15:48,560 --> 00:15:50,720 Speaker 3: they did a very thorough job in ruling, and then 299 00:15:50,720 --> 00:15:52,520 Speaker 3: they came back. So, yeah, now we're gonna undo it. 300 00:15:52,760 --> 00:15:54,640 Speaker 3: And I gotta believe, like the rest of us, she's 301 00:15:54,640 --> 00:15:57,320 Speaker 3: probably thinking, why didn't you just tell us this in advance, 302 00:15:57,560 --> 00:16:00,000 Speaker 3: because through their actions they do look like they're putting 303 00:16:00,040 --> 00:16:02,640 Speaker 3: their thumb on the scale for Donald Trump. And that's 304 00:16:02,680 --> 00:16:05,160 Speaker 3: why people have such a dim view of the Supreme Court. 305 00:16:05,200 --> 00:16:07,960 Speaker 3: These days, they look like a political institution. They're not 306 00:16:07,960 --> 00:16:10,840 Speaker 3: supposed to. They're supposed to be above politics. Chief Justice 307 00:16:10,920 --> 00:16:13,440 Speaker 3: Roberts wants us to buy into the Supreme Court as 308 00:16:13,480 --> 00:16:16,760 Speaker 3: an a political institution. But he's part of the problem. 309 00:16:16,760 --> 00:16:19,040 Speaker 3: He's the one who wrote the opinion in the immunity case. 310 00:16:19,320 --> 00:16:21,360 Speaker 3: He's the one to offer such broad immunity that even 311 00:16:21,480 --> 00:16:24,640 Speaker 3: Justice amy Cony Barrett, a Trump appointee, could not go 312 00:16:24,720 --> 00:16:27,080 Speaker 3: along with part of it. So that's why I think, 313 00:16:27,280 --> 00:16:29,080 Speaker 3: you know, he's hoist by his own patard. This is 314 00:16:29,120 --> 00:16:30,280 Speaker 3: a problem of his own making. 315 00:16:31,000 --> 00:16:34,000 Speaker 1: We should mention that if the Chief Justice is in 316 00:16:34,120 --> 00:16:38,120 Speaker 1: the majority in a case, he decides who's going to 317 00:16:38,120 --> 00:16:41,640 Speaker 1: write the opinion. And this term he wrote the majority 318 00:16:41,880 --> 00:16:46,960 Speaker 1: opinion in two very important cases, the presidential immunity case 319 00:16:47,280 --> 00:16:51,000 Speaker 1: and the decision to throw away the Chevron doctrine. 320 00:16:51,280 --> 00:16:53,560 Speaker 3: He went farther than any of us thought he would go, 321 00:16:53,640 --> 00:16:56,520 Speaker 3: because not only did he offer this broad immunity and 322 00:16:56,560 --> 00:17:00,680 Speaker 3: a presumption of immunity for any semi outer band of 323 00:17:00,720 --> 00:17:04,040 Speaker 3: an official act, but he also refused to even say 324 00:17:04,119 --> 00:17:07,399 Speaker 3: what is an unofficial act. According to the indictment, he 325 00:17:07,560 --> 00:17:09,600 Speaker 3: refused to say, like, hey, maybe the fake elector scheme 326 00:17:09,640 --> 00:17:12,000 Speaker 3: is an unofficial act? Now you wouldn't say that. Maybe 327 00:17:12,040 --> 00:17:15,359 Speaker 3: speaking at the ellipse and you know, antagonizing people, is 328 00:17:15,359 --> 00:17:16,199 Speaker 3: that an unofficial like? 329 00:17:16,280 --> 00:17:16,359 Speaker 2: No? 330 00:17:16,840 --> 00:17:20,359 Speaker 3: Calling Brad Rathsenberger saying you're gonna you know, five eleven thousand, 331 00:17:20,400 --> 00:17:22,199 Speaker 3: seven hundred and eighty votes, is that an unofficial like? 332 00:17:22,320 --> 00:17:22,480 Speaker 1: Nah? 333 00:17:22,560 --> 00:17:22,919 Speaker 4: Maybe not. 334 00:17:23,560 --> 00:17:26,760 Speaker 3: So he could have, you know, put forward. It wheels 335 00:17:26,760 --> 00:17:29,119 Speaker 3: a motion at least a smaller trial for Jacksonith, but 336 00:17:29,200 --> 00:17:31,200 Speaker 3: he refused to do even that. And that's where Justice 337 00:17:31,200 --> 00:17:34,080 Speaker 3: amy Cony Barrett said, Hey, you know, there are some 338 00:17:34,160 --> 00:17:36,119 Speaker 3: easy parts of this indictment you could have allowed to 339 00:17:36,160 --> 00:17:38,480 Speaker 3: go forward, and you didn't. And then he said, you 340 00:17:38,520 --> 00:17:43,000 Speaker 3: can't even inquire into the executive branch to ask questions 341 00:17:43,000 --> 00:17:46,119 Speaker 3: and interview witnesses and gain evidence, even if it relates 342 00:17:46,160 --> 00:17:49,520 Speaker 3: to unofficial acts, because it could hurt the powers of 343 00:17:49,560 --> 00:17:52,520 Speaker 3: the presidency. That's the worst part of the ruling. So 344 00:17:52,800 --> 00:17:54,879 Speaker 3: he has made it very hard for prosecutors. And I 345 00:17:54,920 --> 00:17:58,400 Speaker 3: think the ruling in itself is so confusing that at 346 00:17:58,400 --> 00:18:00,640 Speaker 3: some point they're gonna have to revisit well, just. 347 00:18:00,600 --> 00:18:03,639 Speaker 1: Like they're revisiting the decision taking away the constitutional right 348 00:18:03,680 --> 00:18:06,240 Speaker 1: to abortion. They're going to be revisiting the decision, taking 349 00:18:06,280 --> 00:18:10,119 Speaker 1: away Chevron a lot more work for themselves. So let's 350 00:18:10,240 --> 00:18:15,000 Speaker 1: talk about the Florida case, which is completely off track. 351 00:18:15,560 --> 00:18:18,560 Speaker 1: So Jack Smith is appealing. Do we know when he's 352 00:18:18,600 --> 00:18:19,879 Speaker 1: going to file his papers? 353 00:18:20,040 --> 00:18:21,840 Speaker 3: Well, he's going to the eleventh Circuit. He could have 354 00:18:21,960 --> 00:18:24,000 Speaker 3: just said, all right, I'm not going to appeal. Let's 355 00:18:24,040 --> 00:18:26,360 Speaker 3: refile the case through the US Attorney's office, not through 356 00:18:26,440 --> 00:18:29,720 Speaker 3: Jack Smith, and then it would go faster and maybe 357 00:18:29,720 --> 00:18:31,919 Speaker 3: even get a better excuse me for it, and slept 358 00:18:32,000 --> 00:18:37,400 Speaker 3: a different judge better won can't be worser Jack Smith. Yeah, yeah, 359 00:18:37,440 --> 00:18:41,760 Speaker 3: I mean Judge Canada is inexperienced. She has been delaying 360 00:18:42,080 --> 00:18:44,359 Speaker 3: so many hearings and then has come up with such 361 00:18:44,520 --> 00:18:47,879 Speaker 3: radical rulings that many observers like me are shaking their heads. 362 00:18:48,920 --> 00:18:52,840 Speaker 1: As you mentioned, he could have refiled this. Wouldn't that 363 00:18:52,880 --> 00:18:56,600 Speaker 1: have been an easier and quicker way to deal with this? 364 00:18:56,840 --> 00:18:58,919 Speaker 3: Yes, but I think the Department of Justice did not 365 00:18:59,000 --> 00:19:01,600 Speaker 3: want such an errant ruling to sit there. They want 366 00:19:01,680 --> 00:19:04,280 Speaker 3: to appeal it to get that overturned. They believe, as 367 00:19:04,320 --> 00:19:06,920 Speaker 3: I do, is probably you and most other people do that. 368 00:19:07,160 --> 00:19:10,720 Speaker 3: Judge Cannon's ruling was wrongfully decided. It goes against all 369 00:19:10,800 --> 00:19:13,560 Speaker 3: the president out there. Every other case is ruled the 370 00:19:13,560 --> 00:19:17,000 Speaker 3: other way. So now you have a case that is 371 00:19:17,280 --> 00:19:19,439 Speaker 3: in opposition to precedent. So what do you do? You 372 00:19:19,880 --> 00:19:22,520 Speaker 3: try to overturn it. The problem is, even though I 373 00:19:22,520 --> 00:19:24,200 Speaker 3: do think he's going to get it overturned by the 374 00:19:24,240 --> 00:19:27,000 Speaker 3: Eleventh Circuit, what happens when the Supreme Court picks it up. 375 00:19:27,000 --> 00:19:29,879 Speaker 3: We thought that the immunity decision was a no brainer. 376 00:19:29,960 --> 00:19:31,600 Speaker 3: Are they going to come up with some new radical 377 00:19:31,880 --> 00:19:34,919 Speaker 3: opinion that puts a hold on the special Council? And 378 00:19:35,200 --> 00:19:37,159 Speaker 3: even if they just take it up and rule for 379 00:19:37,280 --> 00:19:40,240 Speaker 3: Jack Smith, look all those delays you have. I say, 380 00:19:40,359 --> 00:19:43,320 Speaker 3: just go ahead and let that opinion sit as an outlier, 381 00:19:44,040 --> 00:19:48,280 Speaker 3: ignore it, and then have the US Attorney's Office file 382 00:19:48,359 --> 00:19:52,040 Speaker 3: it again in the Southern District of Florida and move 383 00:19:52,080 --> 00:19:54,720 Speaker 3: forward there. Now I know another objection is that, well 384 00:19:54,840 --> 00:19:57,040 Speaker 3: that'll look more political. That's why there needs to be 385 00:19:57,080 --> 00:19:59,880 Speaker 3: a special council. Come on, you can't persuade the unpersuadable. 386 00:20:00,080 --> 00:20:01,919 Speaker 3: You're always going to look political whether you do or 387 00:20:01,920 --> 00:20:04,640 Speaker 3: you don't. Just do what's right for the cause of justice. 388 00:20:04,880 --> 00:20:08,440 Speaker 1: So it goes to the Eleventh Circuit, which is predominantly 389 00:20:08,960 --> 00:20:09,960 Speaker 1: Republican appointed. 390 00:20:11,240 --> 00:20:12,640 Speaker 3: Yeah, majority, it's conservative. 391 00:20:12,720 --> 00:20:15,439 Speaker 1: It's conservative, And so in the first instance, it'll go 392 00:20:15,440 --> 00:20:18,280 Speaker 1: to a panel three judge panel. Does it matter who's 393 00:20:18,320 --> 00:20:20,399 Speaker 1: on that panel? Do you think in this case? 394 00:20:20,840 --> 00:20:24,199 Speaker 3: Well, if you look at the panel that had the 395 00:20:24,320 --> 00:20:27,600 Speaker 3: last appeal of a Judge Cannon order, the one involving 396 00:20:27,600 --> 00:20:32,359 Speaker 3: the Special Master, that panel had three judges appointed by Republicans. 397 00:20:32,400 --> 00:20:35,720 Speaker 3: Judge Pryor, who's the chief judge there, who was on 398 00:20:35,760 --> 00:20:38,400 Speaker 3: the shortlist for the US Supreme Court for President Bush. 399 00:20:38,720 --> 00:20:40,119 Speaker 3: He was one of the judges, and the other two 400 00:20:40,200 --> 00:20:42,960 Speaker 3: judges were appointed by Donald Trump himself, and all three 401 00:20:43,080 --> 00:20:47,440 Speaker 3: judges ruled against Judge Cannon and humiliated her, repudiated her 402 00:20:47,720 --> 00:20:49,720 Speaker 3: in no uncertain term. So I don't think it matters 403 00:20:49,840 --> 00:20:51,800 Speaker 3: who's on the panel. I think they're going to repudiate 404 00:20:51,800 --> 00:20:54,280 Speaker 3: her again, but they will not take her off this case. 405 00:20:54,320 --> 00:20:57,200 Speaker 3: For this I think the reason why Judge Cannon felt 406 00:20:57,240 --> 00:21:00,000 Speaker 3: empowered to do what she did, to do something so radical, 407 00:21:00,520 --> 00:21:03,919 Speaker 3: was because Justice Clarence Thomas, in the immunity decision, he 408 00:21:03,960 --> 00:21:07,399 Speaker 3: did a concurring opinion that set forth a roadmap for 409 00:21:07,480 --> 00:21:09,919 Speaker 3: Judge Cannon, even though this wasn't even an issue in 410 00:21:09,920 --> 00:21:14,719 Speaker 3: front of Judge Justice Thomas. He gave her some maps 411 00:21:14,760 --> 00:21:17,680 Speaker 3: of how to undo the special counsel, like a wink 412 00:21:17,680 --> 00:21:19,640 Speaker 3: and a nod to her, and she took the bait, 413 00:21:19,720 --> 00:21:21,320 Speaker 3: she ran with it. And that's why I don't think 414 00:21:21,359 --> 00:21:23,679 Speaker 3: she can be taken off the case by the Eleventh 415 00:21:23,720 --> 00:21:27,000 Speaker 3: Circuit when you're following the ruling even though it's just 416 00:21:27,000 --> 00:21:29,359 Speaker 3: a concurring ruling that no one else signed off on 417 00:21:29,760 --> 00:21:31,280 Speaker 3: of Justice Clarence Thomas. 418 00:21:31,560 --> 00:21:35,399 Speaker 1: But what about all her decisions slowing down the case. 419 00:21:35,840 --> 00:21:38,320 Speaker 3: Well, you have a lot of discretion as a judge 420 00:21:38,480 --> 00:21:42,600 Speaker 3: on your scheduling, So her decisions to delay and ponder 421 00:21:42,760 --> 00:21:45,560 Speaker 3: things not going to get her bounce from the case. 422 00:21:45,920 --> 00:21:47,879 Speaker 3: What we'll get her balance is when she makes a 423 00:21:48,000 --> 00:21:53,080 Speaker 3: radical ruling that goes against precedent and shows bias. And 424 00:21:53,280 --> 00:21:55,199 Speaker 3: this I think would have gotten or taken off the 425 00:21:55,200 --> 00:22:00,159 Speaker 3: case but for Justice Clarence Thomas's concurring opinion which no 426 00:22:00,160 --> 00:22:02,760 Speaker 3: one else signed off on. So that makes me believe 427 00:22:02,800 --> 00:22:04,840 Speaker 3: perhaps if this goes back to the US Supreme Court, 428 00:22:04,880 --> 00:22:08,080 Speaker 3: which I think it inevitably will, that Jacksmith will win 429 00:22:08,080 --> 00:22:09,200 Speaker 3: it's just more delays. 430 00:22:09,880 --> 00:22:12,560 Speaker 1: Well, we thought he would win on presidential community too, 431 00:22:12,640 --> 00:22:14,639 Speaker 1: So I think like all bets are off at this 432 00:22:14,760 --> 00:22:17,439 Speaker 1: point as to what the Supreme Court will do. What 433 00:22:17,560 --> 00:22:21,560 Speaker 1: about bringing the case in New Jersey or in DC. 434 00:22:22,200 --> 00:22:25,960 Speaker 3: Yeah, it's tougher Bedminster, New Jersey where he waved around 435 00:22:26,000 --> 00:22:29,560 Speaker 3: that document. You could try to do it based on 436 00:22:29,560 --> 00:22:31,919 Speaker 3: that one document, But the documents are all of mar 437 00:22:31,960 --> 00:22:34,520 Speaker 3: A Lago that you took from the White House, and 438 00:22:34,560 --> 00:22:37,360 Speaker 3: so it's really not DC or Bedminster. You could try 439 00:22:37,400 --> 00:22:39,480 Speaker 3: to do a little bit, maybe that one document ben Minster 440 00:22:39,480 --> 00:22:41,440 Speaker 3: that we apparently know that he had that he's waving around. 441 00:22:41,480 --> 00:22:45,720 Speaker 3: That's unlawful retention. Perhaps that's dissemination. But as far as 442 00:22:45,800 --> 00:22:50,119 Speaker 3: where the case really needs to be, the obstruction the 443 00:22:50,200 --> 00:22:55,880 Speaker 3: violation of the espionajack that allegedly occurred in South Florida 444 00:22:56,000 --> 00:22:58,080 Speaker 3: in mar A Lago once he was a former president. 445 00:22:58,480 --> 00:23:01,040 Speaker 3: You don't want to get into a game of venue 446 00:23:01,080 --> 00:23:03,520 Speaker 3: wars where it's going to go up to appellate courts 447 00:23:03,560 --> 00:23:06,520 Speaker 3: and then you get repudiated for trying to play the 448 00:23:06,520 --> 00:23:09,440 Speaker 3: game of form shopping. It belongs to South Florida to 449 00:23:09,480 --> 00:23:12,080 Speaker 3: do it there. He just got unlucky in getting Judge Cannon, 450 00:23:12,080 --> 00:23:13,720 Speaker 3: which is why he should. I think, refile it and 451 00:23:13,760 --> 00:23:16,119 Speaker 3: see if the chief judge will sign a different judge. 452 00:23:16,160 --> 00:23:17,840 Speaker 1: But isn't it a random assignment. 453 00:23:18,240 --> 00:23:20,960 Speaker 3: It is, and since Judge Cannon has this case, it's 454 00:23:21,160 --> 00:23:24,320 Speaker 3: likely that she would get a refiled case again. But 455 00:23:24,920 --> 00:23:27,560 Speaker 3: the chief judge down there, remember said that, hey, I 456 00:23:27,560 --> 00:23:30,480 Speaker 3: think you should not be on this case. Remember, and 457 00:23:30,560 --> 00:23:32,600 Speaker 3: yet she said no, I can handle it. So I 458 00:23:32,640 --> 00:23:34,800 Speaker 3: think since the chief judge is the one who has 459 00:23:34,840 --> 00:23:37,240 Speaker 3: some saying here, she may direct this case as a 460 00:23:37,320 --> 00:23:40,280 Speaker 3: different judge if it's refiled down there properly from the 461 00:23:40,359 --> 00:23:41,320 Speaker 3: US Attorney's office. 462 00:23:41,440 --> 00:23:45,080 Speaker 1: That's unlikely, though. All indications are that Jack Smith is 463 00:23:45,119 --> 00:23:48,840 Speaker 1: going to file an appeal with the Eleventh Circuit. Thanks 464 00:23:48,880 --> 00:23:51,520 Speaker 1: so much for coming on the show, Dave. That's Palm 465 00:23:51,600 --> 00:23:56,160 Speaker 1: Beach County State Attorney Dave Arenberg coming up next. Half 466 00:23:56,200 --> 00:24:00,159 Speaker 1: of the NBA teams are sued for copyright infringement. This 467 00:24:00,240 --> 00:24:05,720 Speaker 1: is Bloomberg. You know those catchy TikTok videos your favorite 468 00:24:05,840 --> 00:24:09,480 Speaker 1: NBA team puts out. Well, nearly half the teams in 469 00:24:09,560 --> 00:24:13,960 Speaker 1: the NBA are being sued for using copyrighted music by 470 00:24:14,200 --> 00:24:18,480 Speaker 1: artists like Pitbull, Dua Lipa, Miley Cyrus, and Cardi B 471 00:24:19,080 --> 00:24:24,399 Speaker 1: in promotional videos on TikTok, Facebook, Instagram, YouTube, and x 472 00:24:24,640 --> 00:24:29,440 Speaker 1: formerly Twitter. The New York Knicks, the Philadelphia seventy six Ers, 473 00:24:29,440 --> 00:24:33,399 Speaker 1: the Atlanta Hawks, and the Minnesota Timberwolves are among the 474 00:24:33,440 --> 00:24:38,040 Speaker 1: teams being sued for syncing songs to video without permission, 475 00:24:38,600 --> 00:24:41,520 Speaker 1: and the complaint alleges that the teams knew they are 476 00:24:41,600 --> 00:24:46,199 Speaker 1: willfully infringing on the intellectual property rights. Joining me is 477 00:24:46,240 --> 00:24:50,920 Speaker 1: intellectual property litigator Terren Swass a partner Katin Euchen Rosenman. 478 00:24:51,760 --> 00:24:57,960 Speaker 1: But there are three different kinds of copyright infringement, alleged 479 00:24:58,440 --> 00:25:04,879 Speaker 1: direct copyright infringement, contributory copyright infringement, and vicarious copyright infringement. 480 00:25:05,240 --> 00:25:06,359 Speaker 1: What's the difference there? 481 00:25:06,720 --> 00:25:09,800 Speaker 4: So the difference is essentially and who did want? Each 482 00:25:09,800 --> 00:25:15,120 Speaker 4: of these fourteen complaints is against a different NBA basketball team, 483 00:25:15,160 --> 00:25:20,240 Speaker 4: But in addition to naming the basketball team, it names 484 00:25:20,480 --> 00:25:25,560 Speaker 4: multiple John or Jane does who have yet to be discovered. 485 00:25:26,040 --> 00:25:29,240 Speaker 4: And that's what really counts two and three of mees 486 00:25:29,240 --> 00:25:33,080 Speaker 4: just account one is for direct copyright infringement, probably directed 487 00:25:33,359 --> 00:25:36,440 Speaker 4: against the team. I'm saying, hey, look you used our 488 00:25:36,480 --> 00:25:40,600 Speaker 4: songs without authorization, without taking a license. Therefore you've committed 489 00:25:40,600 --> 00:25:47,359 Speaker 4: direct copyright infringement. There probably are individual who affected that 490 00:25:48,119 --> 00:25:54,040 Speaker 4: the person who actually loaded the video onto the social 491 00:25:54,080 --> 00:25:58,760 Speaker 4: media platform, or if there was a third party business 492 00:25:59,240 --> 00:26:03,000 Speaker 4: that was responsible for the social media account for a team, 493 00:26:03,119 --> 00:26:07,960 Speaker 4: they might be liable for contributing to the copyright infringement 494 00:26:07,960 --> 00:26:10,760 Speaker 4: committed by the team. And so those are really more 495 00:26:11,280 --> 00:26:16,000 Speaker 4: sort of belt and suspender causes of action that are 496 00:26:16,040 --> 00:26:19,000 Speaker 4: designed to just make sure that somebody doesn't slip out 497 00:26:19,040 --> 00:26:21,760 Speaker 4: from under the ambit of the lawsuit by saying, well, 498 00:26:21,840 --> 00:26:25,840 Speaker 4: I didn't directly do it, I simply helped them to 499 00:26:25,880 --> 00:26:30,119 Speaker 4: do it. So, in a real sense, the cause of 500 00:26:30,160 --> 00:26:32,960 Speaker 4: action here is for copyright infringement, and I think you 501 00:26:33,000 --> 00:26:37,600 Speaker 4: can largely ignore the difference between contributor or indirect infringement. 502 00:26:37,920 --> 00:26:41,879 Speaker 1: The complaint says defendants are acutely aware of the protections 503 00:26:41,880 --> 00:26:46,040 Speaker 1: that the copyright laws afford, so they utilize the full 504 00:26:46,080 --> 00:26:50,119 Speaker 1: extent of legal protections for their own intellectual property while 505 00:26:50,240 --> 00:26:54,080 Speaker 1: willingly infringing on the intellectual property rights of the plaintiffs. So, 506 00:26:54,320 --> 00:26:57,600 Speaker 1: I mean, fourteen teams, they must have known, didn't they 507 00:26:57,640 --> 00:27:01,480 Speaker 1: get legal advice that this was not allowed without a license. 508 00:27:01,840 --> 00:27:07,000 Speaker 4: Well, certainly, each of these teams owns copyrights and trademarks 509 00:27:07,000 --> 00:27:11,960 Speaker 4: in types of intellectual property means, fundamentally, the NBA is 510 00:27:12,160 --> 00:27:18,400 Speaker 4: an entertainment business, right entertaining all of us through competitive sports, 511 00:27:18,680 --> 00:27:21,479 Speaker 4: and as with any entertainment business, they have to have 512 00:27:21,520 --> 00:27:26,000 Speaker 4: copyrights on their broadcast, trademarks, on their logos, on the 513 00:27:26,040 --> 00:27:30,040 Speaker 4: team names, et cetera. So they are aware of intellectual 514 00:27:30,080 --> 00:27:34,240 Speaker 4: property laws. There's no question about that. And that paragraph 515 00:27:34,280 --> 00:27:36,879 Speaker 4: and the complaint is sort of a gotcha. You know, 516 00:27:36,960 --> 00:27:39,280 Speaker 4: you guys knew about the copyright laws, but you want 517 00:27:39,280 --> 00:27:42,399 Speaker 4: to violate them anyway. The bigger question that you pose 518 00:27:42,520 --> 00:27:46,040 Speaker 4: is how did this happen? Each of these NBA teams 519 00:27:46,520 --> 00:27:50,479 Speaker 4: have in house legal staff. The league has a fairly 520 00:27:50,600 --> 00:27:53,920 Speaker 4: large in house legal staff that can be accessed by 521 00:27:53,960 --> 00:27:57,040 Speaker 4: the teams as necessary. I mean, most of the trademark 522 00:27:57,119 --> 00:28:01,440 Speaker 4: registration process goes through the league, through the individual teams. 523 00:28:01,600 --> 00:28:03,119 Speaker 4: And so the question is a very good one that 524 00:28:03,160 --> 00:28:05,760 Speaker 4: you asked you and how could this happen? And the 525 00:28:05,840 --> 00:28:09,720 Speaker 4: simple answer is that, as with many corporations, the mere 526 00:28:09,840 --> 00:28:12,679 Speaker 4: fact that you're big and that you have knowledge of 527 00:28:12,800 --> 00:28:15,040 Speaker 4: the intellectual property was doesn't mean that you have a 528 00:28:15,119 --> 00:28:19,040 Speaker 4: large enough legal staff or legal staff that is experienced 529 00:28:19,119 --> 00:28:22,399 Speaker 4: in intellectual property to be able to deal with every 530 00:28:22,480 --> 00:28:26,560 Speaker 4: problem that comes up. The biggest problems that NBA teams 531 00:28:26,600 --> 00:28:31,000 Speaker 4: face are labor and employment issue, so they obviously have 532 00:28:31,040 --> 00:28:34,080 Speaker 4: people who are very familiar with employment issues and with 533 00:28:34,160 --> 00:28:38,280 Speaker 4: the collective bargaining agreement. They also have basic contract problems, 534 00:28:38,680 --> 00:28:42,880 Speaker 4: contracts with the venue that they play in, contracts with sponsors, 535 00:28:43,040 --> 00:28:45,160 Speaker 4: and so they obviously have people on their legal staff 536 00:28:45,160 --> 00:28:48,080 Speaker 4: who are very familiar contracts. That doesn't mean that they're 537 00:28:48,080 --> 00:28:50,920 Speaker 4: going to have a copyright specialist because that doesn't come 538 00:28:51,040 --> 00:28:54,320 Speaker 4: up as often, and they probably when they have a problem, 539 00:28:54,520 --> 00:28:57,400 Speaker 4: refer to outside counsel in that field. And so the 540 00:28:57,400 --> 00:29:00,840 Speaker 4: simple answer is you have their big corporation, but when 541 00:29:00,880 --> 00:29:04,320 Speaker 4: it comes to social media platforms, they're often no more 542 00:29:04,400 --> 00:29:08,400 Speaker 4: cognizant of what the rules are than any layperson like 543 00:29:08,520 --> 00:29:09,360 Speaker 4: your kid or my kid. 544 00:29:10,040 --> 00:29:13,840 Speaker 1: As far as possible defenses, might they claim fair use 545 00:29:13,920 --> 00:29:16,920 Speaker 1: it was a pretty quick sampling of the music. 546 00:29:17,240 --> 00:29:20,280 Speaker 4: I'm sure that they will claim that, and it would 547 00:29:20,320 --> 00:29:23,400 Speaker 4: be a colorable defense. Let's just say I'm not sure 548 00:29:23,400 --> 00:29:25,520 Speaker 4: that it would succeed in the long run, but it 549 00:29:25,520 --> 00:29:28,120 Speaker 4: would certainly be a colorable defense. Here's the problem that 550 00:29:28,160 --> 00:29:31,800 Speaker 4: they face. Each of these social media sites has a 551 00:29:31,920 --> 00:29:36,080 Speaker 4: license with the major music publishing houses and recording studios, 552 00:29:36,360 --> 00:29:40,600 Speaker 4: and they have available to their users hundreds of thousands 553 00:29:41,040 --> 00:29:45,600 Speaker 4: pieces of music. The problem is that that license is 554 00:29:45,840 --> 00:29:51,080 Speaker 4: limited to non commercial use. And this is where companies 555 00:29:51,240 --> 00:29:54,800 Speaker 4: make mistakes all the time on social media platforms. And 556 00:29:54,840 --> 00:29:57,920 Speaker 4: this is truly these lawsuits are truly a cautionary tale 557 00:29:58,280 --> 00:30:00,880 Speaker 4: for every business that should wake up pay attention here. 558 00:30:01,360 --> 00:30:04,520 Speaker 4: When a business goes on as a social media platform, it 559 00:30:04,600 --> 00:30:08,160 Speaker 4: simply assumed that you're doing that for commercial purposes your business. 560 00:30:08,440 --> 00:30:11,479 Speaker 4: What other purpose could there be other than for commercial purpose? 561 00:30:11,640 --> 00:30:16,840 Speaker 4: And therefore that license that individual users teenagers for example, 562 00:30:17,120 --> 00:30:20,240 Speaker 4: can take advantage of cannot be taken advantage of by 563 00:30:20,320 --> 00:30:25,920 Speaker 4: a business because it expressly excludes commercial use on these websites, 564 00:30:25,960 --> 00:30:29,120 Speaker 4: whether it be TikTok or Instagram or And that's the 565 00:30:29,240 --> 00:30:32,680 Speaker 4: problem here is that these NBA teams did not seem 566 00:30:32,680 --> 00:30:37,040 Speaker 4: to be cognizant of that limitation on the general available 567 00:30:37,080 --> 00:30:39,920 Speaker 4: license and simply assumed that they could do this. And 568 00:30:39,960 --> 00:30:41,520 Speaker 4: nobody really thought twice. 569 00:30:41,520 --> 00:30:44,880 Speaker 1: And I assumed isn't a defense. 570 00:30:45,000 --> 00:30:48,480 Speaker 4: I assumed it's not a defense like that famous Steve 571 00:30:48,520 --> 00:30:52,240 Speaker 4: Martin witt. Sorry, you're hunter. I didn't know that armed 572 00:30:52,280 --> 00:30:54,800 Speaker 4: robbery was against the law. You just can't. That doesn't 573 00:30:54,840 --> 00:30:57,200 Speaker 4: work in a court of law. Fair use is a 574 00:30:57,280 --> 00:31:00,400 Speaker 4: legitimate defense, but I just in light of the fact 575 00:31:00,480 --> 00:31:03,920 Speaker 4: that they were trying to take advantage of a license 576 00:31:04,480 --> 00:31:07,880 Speaker 4: to the site for music and simply didn't comply the 577 00:31:07,960 --> 00:31:11,200 Speaker 4: right way, it makes it really hard to then succeed 578 00:31:11,280 --> 00:31:14,080 Speaker 4: with the fair use defense. In my opinion, the. 579 00:31:14,160 --> 00:31:18,480 Speaker 1: Music owners have been cracking down on these social media uses, 580 00:31:18,640 --> 00:31:23,360 Speaker 1: and all three major labels sued drink maker Bang Energy 581 00:31:23,920 --> 00:31:27,520 Speaker 1: for using hundreds of copyrighted songs in TikTok videos. A 582 00:31:27,640 --> 00:31:30,920 Speaker 1: judge did rule in that case. He said, it doesn't 583 00:31:30,920 --> 00:31:33,600 Speaker 1: really matter what Bang thought, which goes to the Steve 584 00:31:33,640 --> 00:31:36,960 Speaker 1: Martin clip. Have these cases gone to judges or appellate 585 00:31:37,040 --> 00:31:38,000 Speaker 1: courts yet. 586 00:31:38,520 --> 00:31:41,200 Speaker 4: So there's a large number of these that have been 587 00:31:41,240 --> 00:31:46,240 Speaker 4: percolating over the last year. The Beastie Boys sued Chili's, 588 00:31:46,280 --> 00:31:50,600 Speaker 4: the restaurant chain, for using their song sabotage in social 589 00:31:50,640 --> 00:31:56,000 Speaker 4: media clips. Sony sued Marriott just this last may for 590 00:31:56,200 --> 00:31:59,480 Speaker 4: using some of its songs. Sony has a very large 591 00:31:59,560 --> 00:32:03,400 Speaker 4: music and for Mary apparently use some of those in 592 00:32:03,480 --> 00:32:07,640 Speaker 4: its social media platform campaigns. So you're seeing this happen 593 00:32:07,680 --> 00:32:10,320 Speaker 4: all the time. It's part of a broader trend within 594 00:32:10,360 --> 00:32:14,480 Speaker 4: the music business. The music industry and performers in general 595 00:32:14,560 --> 00:32:19,040 Speaker 4: believe that they're being undercompensated, and so they have become 596 00:32:19,600 --> 00:32:23,760 Speaker 4: very aggressive on the litigation front. There have been a 597 00:32:23,920 --> 00:32:29,240 Speaker 4: number of lawsuits against streaming platforms, mostly recently Verizon utsuit 598 00:32:29,840 --> 00:32:34,200 Speaker 4: alleging that they are willfully allowing this to happen, that 599 00:32:34,280 --> 00:32:39,680 Speaker 4: people share songs notwithstanding getting copious numbers of copyright takedown 600 00:32:39,760 --> 00:32:42,440 Speaker 4: notices from the music companies. And so this is just 601 00:32:42,560 --> 00:32:48,600 Speaker 4: part of a larger trend of pushing back by music companies, 602 00:32:49,000 --> 00:32:54,680 Speaker 4: recording studios, performers to try to capture more monetary compensation 603 00:32:55,160 --> 00:32:55,800 Speaker 4: for their work. 604 00:32:56,320 --> 00:32:59,400 Speaker 1: Because to me, this seems like an open and shutcase. 605 00:33:00,400 --> 00:33:03,120 Speaker 4: Look, if I got hired to represent one of the teams, 606 00:33:03,120 --> 00:33:06,480 Speaker 4: I'd be calling and trying to answer real quick what 607 00:33:06,600 --> 00:33:09,200 Speaker 4: they want. You know, litigating a lawsuit like this can 608 00:33:09,320 --> 00:33:14,320 Speaker 4: only be embarrassing at best, and at worst can really 609 00:33:14,320 --> 00:33:18,000 Speaker 4: be a black eye for a team, particularly since the 610 00:33:18,120 --> 00:33:20,920 Speaker 4: music ledged to be used here is by some of 611 00:33:20,920 --> 00:33:25,280 Speaker 4: the most popular performers on the contemporary music scene. The 612 00:33:25,360 --> 00:33:30,479 Speaker 4: allegations are that the songs used came from a Pitbull, Doja, 613 00:33:30,560 --> 00:33:34,920 Speaker 4: Kat Dualipa, Miley, Cyrus, jay Z, Cardi B just to 614 00:33:35,000 --> 00:33:39,280 Speaker 4: name a few. I mean, these are really popular performers 615 00:33:39,600 --> 00:33:43,080 Speaker 4: and their fans tend to resent it when their music 616 00:33:43,280 --> 00:33:46,920 Speaker 4: is being used improperly like this, and so this can 617 00:33:47,000 --> 00:33:50,440 Speaker 4: only be a black eye for these NBA teams. There's 618 00:33:50,480 --> 00:33:53,120 Speaker 4: that old thing, you know, the first rule of holes, 619 00:33:53,640 --> 00:33:55,960 Speaker 4: h O l Ees is when you're in a hole, 620 00:33:56,080 --> 00:33:59,720 Speaker 4: stop thinking. And so my view is, you know, I 621 00:33:59,720 --> 00:34:03,040 Speaker 4: didn't book maya copa, Meicopa man Maxima culpa and do 622 00:34:03,200 --> 00:34:06,680 Speaker 4: my five hail Mary's and pennants and and and move on. 623 00:34:06,960 --> 00:34:09,000 Speaker 4: You know, just what is it that you want to 624 00:34:09,040 --> 00:34:11,640 Speaker 4: make this go away? And do it and we'll promise 625 00:34:11,719 --> 00:34:13,520 Speaker 4: never to do it again. And then I put in 626 00:34:13,560 --> 00:34:16,560 Speaker 4: place some sort of training for the people who are 627 00:34:16,600 --> 00:34:20,680 Speaker 4: actually doing my social media platform so that this never 628 00:34:20,719 --> 00:34:24,040 Speaker 4: happens again. Now, part of the problem here is that sometimes 629 00:34:24,120 --> 00:34:28,200 Speaker 4: corporations farm that workout to third parties. I mean, there 630 00:34:28,239 --> 00:34:31,160 Speaker 4: are lots of companies who for a price, will do 631 00:34:31,360 --> 00:34:37,680 Speaker 4: your social media postings for you. That's what most celebrities have. 632 00:34:38,360 --> 00:34:41,280 Speaker 4: You know, you don't see people like Kevin Durant sitting 633 00:34:41,320 --> 00:34:45,440 Speaker 4: down and doing his own posting on TikTok. What you 634 00:34:45,480 --> 00:34:49,480 Speaker 4: see is, you know, wealthy people and big corporation uh 635 00:34:49,760 --> 00:34:52,319 Speaker 4: pushing that out, outsourcing it to a third party. You 636 00:34:52,360 --> 00:34:55,360 Speaker 4: will do it for them, and that's a different problem 637 00:34:56,080 --> 00:34:58,440 Speaker 4: to accept. The NBD NBA teams are doing that, not 638 00:34:58,520 --> 00:35:01,640 Speaker 4: doing it in house. They've got to crack down on 639 00:35:01,680 --> 00:35:05,279 Speaker 4: that and make sure that their third party vendors who 640 00:35:05,280 --> 00:35:09,359 Speaker 4: are providing these services are doing it in a lawful way. 641 00:35:10,160 --> 00:35:13,000 Speaker 1: Maybe the Knicks thought that since jay Z is such 642 00:35:13,000 --> 00:35:16,280 Speaker 1: a fan, and since scortside all the time, he wouldn't 643 00:35:16,320 --> 00:35:18,040 Speaker 1: mind if they used his song. 644 00:35:18,680 --> 00:35:21,799 Speaker 4: That could well be the case. I don't know. I 645 00:35:21,840 --> 00:35:24,680 Speaker 4: suspect me honestly. I mean, we can laugh about this 646 00:35:24,800 --> 00:35:27,440 Speaker 4: and it is comical in some ways, but I suspect 647 00:35:27,480 --> 00:35:30,359 Speaker 4: that none of these teams realized what was going on. 648 00:35:31,120 --> 00:35:35,320 Speaker 4: None of these teams would have willfully set out to 649 00:35:35,360 --> 00:35:38,760 Speaker 4: break the copyright laws because they have their own copyrights 650 00:35:38,400 --> 00:35:42,279 Speaker 4: and don't want them infringe. This is a mistake that 651 00:35:42,719 --> 00:35:46,080 Speaker 4: the team's made, and it's what we would call in 652 00:35:46,120 --> 00:35:50,360 Speaker 4: the business innocent infringement, and they should just do their penance, 653 00:35:50,440 --> 00:35:52,400 Speaker 4: figure out what it needs to make this go away, 654 00:35:52,480 --> 00:35:53,799 Speaker 4: and make sure it doesn't happen yet. 655 00:35:53,960 --> 00:35:56,520 Speaker 1: It'll probably take more than a few hell Mary's, though, 656 00:35:57,040 --> 00:36:01,520 Speaker 1: Thanks so much, Terry. That's intellectual property. Terence Ross a 657 00:36:01,600 --> 00:36:05,080 Speaker 1: partner at Caton Euchen Rosenman. And that's it for this 658 00:36:05,200 --> 00:36:08,320 Speaker 1: edition of the Bloomberg Law Podcast. Remember you can always 659 00:36:08,360 --> 00:36:11,080 Speaker 1: get the latest legal news by subscribing and listening to 660 00:36:11,120 --> 00:36:15,280 Speaker 1: the show on Apple Podcasts, Spotify, and at Bloomberg dot com, 661 00:36:15,320 --> 00:36:19,560 Speaker 1: slash podcast, slash Law. I'm June Grosso and this is 662 00:36:19,600 --> 00:36:20,200 Speaker 1: Bloomberg