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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud

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Speaker 1: and on Bloomberg dot com slash podcast. It's a first.

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Speaker 1: A president's former personal attorney will testify before Congress before

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Speaker 1: he goes to prison about his work for the president

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Speaker 1: as millions of Americans watch on TV. Michael Cohen is

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Speaker 1: appearing voluntarily before the House Oversight Committee on February seven,

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Speaker 1: and from his statements to ABC last month, he's prepared

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Speaker 1: to tell all I will be remembered in history as

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Speaker 1: helping to bring this country back together. Joining me is

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Speaker 1: former federal prosecutor Elie Hone, special counsel at Lowenstein Sandler Ellie.

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Speaker 1: That's a high bar that Cohen has set for himself.

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Speaker 1: Can his testimony match up to the hype that's already generated.

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Speaker 1: I don't know if Michael Cohen. He clearly wants to

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Speaker 1: become this generation's John Dene and I'm not sure if

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Speaker 1: he's up to it. I'm not sure if his testimony

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Speaker 1: is capable of uniting the country In fact, I think

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Speaker 1: what we could see as people driven further apart based

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Speaker 1: on where they already stand. People who believe Trump has

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Speaker 1: committed criminal acts or acts deserving impeachment are going to

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Speaker 1: want to hear everything Michael Cohen says. They're going to

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Speaker 1: want to credit him, and people who do not believe

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Speaker 1: that are going to say he's a liar and he

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Speaker 1: has bad motives. Looking at it from a prosecutor's point

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Speaker 1: of view, the proof in the pudding really is going

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Speaker 1: to be to what extent is he corroborated? To what

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Speaker 1: extent is there other evidence that backs him up? And

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Speaker 1: I think ultimately Mueller and the Southern District of New

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Speaker 1: York are going to have those answers. John Dene had

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Speaker 1: the Watergate tapes that were released later. Also, is there

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Speaker 1: a problem in that Cohen is a convicted liar already?

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Speaker 1: So does that put a sort of a damper on

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Speaker 1: his testimony? Sure? And that's what the defenders of Trump

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Speaker 1: will no doubt point out. They'll say he's a liar.

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Speaker 1: He is an admitted liar. He's been convicted of nine

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Speaker 1: different federal crimes now. And this is the kind of

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Speaker 1: dilemma that you work with all the time as a

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Speaker 1: federal prosecutor. A huge number of federal trials, I think,

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Speaker 1: more than people typically realize, come down to the testimony

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Speaker 1: of cooperating witnesses, people who used to commit crimes with

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Speaker 1: the people they're testifying against now and have struck a

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Speaker 1: deal trying to get a lower sentence, and cases in

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Speaker 1: federal court often turn on them. And what a good

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Speaker 1: prosecutor would do is explain to the jury. Look, first

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Speaker 1: of all, this person is a cooperating witness for a reason.

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Speaker 1: If they weren't involved in crimes before, they wouldn't be here.

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Speaker 1: And second of all, we the prosecutor, did not choose

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Speaker 1: this person. The person who's on trial chosen when they

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Speaker 1: were committing crimes together. And third, it doesn't matter if

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Speaker 1: you like this person, maybe you don't, maybe you shouldn't.

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Speaker 1: The question, really, though, is do you believe him? And ultimately,

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Speaker 1: I don't think Michael Cohen's testimony in February is going

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Speaker 1: to change a lot of minds from from where they

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Speaker 1: stand now. But we will learn a lot of new

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Speaker 1: information and ultimate we will be able to measure up

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Speaker 1: if whether what he says sort of comports with common

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Speaker 1: sense and with the other evidence that we know. The

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Speaker 1: chairman of the committee, Elijah Cummings, said they'll be careful

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Speaker 1: not to undermine Mueller's Russia investigation. Does that mean that

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Speaker 1: we'll miss out on some important parts of Cohen's knowledge.

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Speaker 1: I don't know exactly how that's supposed to work. First

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Speaker 1: of all, I don't know how Elijah Cummings, Representative Commings,

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Speaker 1: thinks he's going to be able to control the Republicans

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Speaker 1: on the committee, who would have every reason to want

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Speaker 1: to blow up Mueller's investigation and reveal things that perhaps

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Speaker 1: aren't ready to come out. So I'm not sure how

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Speaker 1: he's going to do that. I'm also not not sure

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Speaker 1: how either the House members on that committee, regardless of party,

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Speaker 1: or Michael Cohen himself, are going to know what's in

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Speaker 1: bounds are out of bounds with respect to Mueller. So

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Speaker 1: if I'm looking at this from Mueller's point of view,

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Speaker 1: I'd be concerned that Cohen may say something that may

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Speaker 1: out something that I'm doing. And so the question then is, well,

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Speaker 1: why would Mueller be okay with this? Because Representative Coming

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Speaker 1: said that Mueller signed off to which I can of

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Speaker 1: a couple of responses. Number One, it's possible Mueller intends

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Speaker 1: to be done and have issued his report by then.

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Speaker 1: Number two it could be the Mueller's approaches looking. I

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Speaker 1: haven't revealed anything to Colin and I shouldn't have, and

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Speaker 1: he doesn't know anything that I need to keep confidential.

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Speaker 1: And I think mother probably would have been smart to

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Speaker 1: not reveal anything to Michael Cohen. And number three could

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Speaker 1: be he could just think what Cohen can say, whatever

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Speaker 1: he's gonna say, I have my proof. It's it's in

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Speaker 1: hard documents, it's in tapes, it's in emails and texts,

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Speaker 1: and so it doesn't much matter to me what Cohen says. Now,

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Speaker 1: Cohen's going to begin serving a three year sentence for

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Speaker 1: those nine felonies you mentioned on March six. Could his

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Speaker 1: congressional testimony help to knock the sentence down? It could,

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Speaker 1: and it's his really his last remaining play to do that.

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Speaker 1: There's a rule in the in the Federal books called

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Speaker 1: Rule thirty five, and it basically says that if a

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Speaker 1: prosecutor goes back to a court after sentencing and makes

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Speaker 1: a new motion for a defendant to get a further

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Speaker 1: reduced sentence, then the judge can consider that I've done it.

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Speaker 1: I've done it only in rare cases, but my and

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Speaker 1: my years as a prosecutor, there would be instances where

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Speaker 1: someone would have been sentenced and then later on they

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Speaker 1: gave us additional cooperation and you go back to the

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Speaker 1: court and you move for reduction. So that's a possibility,

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Speaker 1: and I think that maybe what's in Michael Cohen's head.

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Speaker 1: Sure he wants to be John Dene, but he's also

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Speaker 1: probably got more selfish motives as well. The question, just

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Speaker 1: as is which prosecutor is going to do that. You

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Speaker 1: need a prosecutor to go in and make that motion.

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Speaker 1: Southern District. My old office has made clear they're not

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Speaker 1: going to. They wrote Cohen a lukewarm at best sentencing memo.

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Speaker 1: Mueller wrote him a more positive sentencing memo. So it's possible.

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Speaker 1: But then again, Mueller doesn't really benefit by Cohen going

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Speaker 1: into Congress and testifying. So he needs to find a sponsor.

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Speaker 1: He needs to find a prosecutor willing to go into

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Speaker 1: court and say, okay, judge, let's consider a little a

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Speaker 1: little time off for this guy. Let's discuss the Mulla

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Speaker 1: report that everyone is waiting for. There are reports that

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Speaker 1: the President's legal team is getting ready for an argument

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Speaker 1: that a large part of the work is protected by

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Speaker 1: executive the privilege might that work with the current Supreme

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Speaker 1: Court get ready for a lot of executive privilege talk

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Speaker 1: and analysis this year. I think it's going to be

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Speaker 1: a key term that we're going to use a lot,

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Speaker 1: and I think it's going to be a key term

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Speaker 1: that's going to determine how things like like this big

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Speaker 1: question about the Muller Report come out. Executive privilege basically

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Speaker 1: is the idea that certain communications that a president has

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Speaker 1: with his top advisors need to remain secret, should not

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Speaker 1: be revealed to the public. Richard Nixon made this argument

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Speaker 1: in nineteen seventy four when he was trying to prevent

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Speaker 1: disclosure of his tapes that he had made, and the

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Speaker 1: Supreme Court in nineteen seventy four ruled against Nixon eight

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Speaker 1: zero one Justice then Justice William Ranquist recused himself, but

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Speaker 1: the other eight unanimously said, Yes, executive privilege exists. It's

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Speaker 1: a real concept. However, you President Nixon cannot use it

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Speaker 1: here because it's designed to protect our national security. Secrets

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Speaker 1: are military secrets. It's not designed to insulate somebody generally

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Speaker 1: against potential criminal exposure. Now, as you said, of course,

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Speaker 1: our entire Supreme Court has turned over since then, and

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Speaker 1: we have a different ideological Supreme Court. So I don't

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Speaker 1: think it's a foregone conclusion that this Supreme Court would

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Speaker 1: reach the same result as the Court in seventy four.

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Speaker 1: But looking at the nine decision, I don't see any

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Speaker 1: meaningful distinction between then and now. Some people have said, well,

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Speaker 1: that was tapes, this could be testimony, or this could

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Speaker 1: be emails or documents. But I don't see a meaningful

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Speaker 1: distinction between one form of evidence and another. All Right,

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Speaker 1: we'll see the real value of precedent, possibly this year.

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Speaker 1: Thanks so much, Ellie. That's former federal prosecutor Ellie Honig.

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Speaker 1: Thanks for listening to the Bloomberg Law Podcast. You can

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Speaker 1: subscribe and listen to the show on Apple Podcasts, SoundCloud,

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Speaker 1: and on Bloomberg dot com slash podcast. I'm June Bolso.

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Speaker 1: This is Bloomberg