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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 Podcasts, SoundCloud

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Speaker 1: and on Bloomberg dot com slash podcasts. Former White House

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Speaker 1: Chief strategist Steve Bannon now has a first. He's the

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Speaker 1: first member of President Trump's inner circle to get a

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Speaker 1: grand jury subpoena from Special Counsel Robert Mueller. Bannon has

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Speaker 1: agreed to meet with Mueller's team for an interview later

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Speaker 1: this month, according to a person familiar with the matter,

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Speaker 1: who also said Bannon did not plan to assert executive

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Speaker 1: privilege in that meeting. My guest is former federal prosecutor

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Speaker 1: Jeffrey Kramer, the managing director of Berkeley Research Group. Jeff

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Speaker 1: let's start out with the fact that Bannon did get

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Speaker 1: a grand jury subpoena. Is that a sure sign that

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Speaker 1: he's not a target of Mueller's investigation? Really a good indication? Uh,

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Speaker 1: there's a d J policy that that that targets and

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Speaker 1: perhaps even subjects, and that's defined differently in d o

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Speaker 1: J aren't given grand Jerry spinis, because there's no sense

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Speaker 1: having them come with the grand jury, go before the

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Speaker 1: grand jury and take the fifth it's deemed prejudicial. So

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Speaker 1: I think it's safe to say he's not the main target.

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Speaker 1: Many people are not familiar with the grand jury process,

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Speaker 1: so I'd just like you to take a moment to

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Speaker 1: explain what a typical grand jury room looks like and

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Speaker 1: what goes on. Sure, um, most states have grand jury systems,

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Speaker 1: and the federal system is done entirely by grand jury.

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Speaker 1: It's basically a mechanism to get the case into uh

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Speaker 1: into court if enough evidence warrants. We all hear about

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Speaker 1: beyond a reasonable doubt. That's the standard that's needed to

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Speaker 1: send someone to prison. However, before a grand jury, it

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Speaker 1: just needs to be it's a less standard whether or

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Speaker 1: not it's reasonable that the person committed the crime. And

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Speaker 1: what it is. It's a room run entire really by

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Speaker 1: the prosecutors. There's no defense lawyers in there, and depending

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Speaker 1: whether it's a state or federal committee, where from twenty

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Speaker 1: to thirty five individuals, and just as someone has called

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Speaker 1: for a jury duty, you can get called for grand

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Speaker 1: jury duty and you sit and you hear presentation by

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Speaker 1: the prosecutor again, no defense lawyers, no judge, and it's

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Speaker 1: just a mechanism to see whether or not an individual

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Speaker 1: or individuals may have committed a crime, and if the

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Speaker 1: grand jury deems that they have or may have, they

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Speaker 1: indict and then it's sent to court and the case proceeds.

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Speaker 1: So here we have Bannon being served with the grand

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Speaker 1: jury subpoena. Robert Mueller could have had him in front

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Speaker 1: of the grand jury testifying under oath without his lawyer present.

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Speaker 1: Why did Muller, in your view, make a deal with

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Speaker 1: Bannon to just come in under you know, and and

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Speaker 1: talk to them under oath instead of being before the

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Speaker 1: grand jury. I think deal is the operative word there.

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Speaker 1: There may be some gay huesmanship going on. If if

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Speaker 1: Robert Mueller wanted him in the grand jury, then he's

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Speaker 1: going in the grand jury unless he was going to

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Speaker 1: take the fifth Amendment um. So there could have been

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Speaker 1: some gamesmanship with respect to the parameters of the interview um.

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Speaker 1: And since he sent him a subpoena obviously rather than

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Speaker 1: try to figure us out in the front end, that

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Speaker 1: gave Muller certainly a bit of an advantage and certainly

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Speaker 1: sent a message both to Bannon and perhaps others that

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Speaker 1: are out there that not that it's surprising, but Robert

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Speaker 1: Muller will bring you into the grand jury if he

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Speaker 1: deems it necessary. So the message is out. Um. So

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Speaker 1: you're the You're I don't know if he will be

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Speaker 1: one of which of Mueller's many prosecutors it will be.

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Speaker 1: But say you're the prosecutor, what are some of the

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Speaker 1: questions you're going to ask Steve Bannon. It's gonna be uh,

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Speaker 1: fairly broad, and you have the advantage of the prosecutor

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Speaker 1: asking the questions that you've talked to a dozens perhaps

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Speaker 1: hundred people and have a multitude of documents, so you're

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Speaker 1: not going in blind. So when you ask a question,

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Speaker 1: the odds are pretty good you may know the answer

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Speaker 1: to it. Uh. Not that you're setting up what's called

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Speaker 1: a perjury trap, in other words, asking a question seeing

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Speaker 1: if he'll answer it right, and if they don't, you

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Speaker 1: indict of relying to the FBI, which is what we

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Speaker 1: saw happened already on some of the individuals here. Um.

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Speaker 1: But you're able to go in with you know your

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Speaker 1: on second base. Essentially, you're either confirming information you've gotten

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Speaker 1: from others or you're testing the veracity the truthfulness that

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Speaker 1: you've heard from other individuals. So while Steve Bannon may

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Speaker 1: not be a target, uh, he could certainly be if

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Speaker 1: he's a truth teller, provide crucial information to see if

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Speaker 1: others might be facing an indictment. So you'll ask him

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Speaker 1: about what happened when FBI Director James Comey was fired.

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Speaker 1: I would ask him everything I possibly could. Started the

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Speaker 1: beginning with Russian context from Tower, What did you know?

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Speaker 1: What emails did you get, who did you talk to?

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Speaker 1: Who else was involved? Was the president aware? And then

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Speaker 1: work my way up to the firing of Comey? What

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Speaker 1: did you know? Where were you what did you hear? Uh?

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Speaker 1: You know, even hearsay here is relevant information for the prosecutors.

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Speaker 1: And then go all the way up to conversations you

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Speaker 1: had with Mr Wolf on the recent book up to

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Speaker 1: the time you left the Oval office. We've talked before

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Speaker 1: about how Muller was also following the money the money trail,

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Speaker 1: and Bannon said in allegedly in the book that came

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Speaker 1: out about President Trump, that he told the author Wolf

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Speaker 1: that there was likely to be a money laundering charge

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Speaker 1: if if, if Muller finds money laundering. Will that be

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Speaker 1: outside his the ambit of his prosecution. You know, it's

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Speaker 1: a good question. I think the short answers no Um

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Speaker 1: and Bannon could have been talking about Manafort. It was

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Speaker 1: not the best kept seeker in the world that Paul

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Speaker 1: Manaford was doing business overseas, and it's not shocking of

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Speaker 1: people who have lobbying and business overseas may not declare

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Speaker 1: all their income uh to the i R S. So

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Speaker 1: Bannon could have been talking about Manafort or something else.

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Speaker 1: But I think just quickly, the difference beet of special counsel,

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Speaker 1: which is Mueller and an independent prosecutor I think of

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Speaker 1: ken Starr is that independent prosecutor is much more limited

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Speaker 1: in what they can look at. Special counsel isn't. He's

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Speaker 1: pretty broad. He has to touch base with the Deputy

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Speaker 1: Attorney General. And we know from the Deputy Attorney General's

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Speaker 1: recent testimony before Congress that Mueller has been meeting with

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Speaker 1: him and not necessary getting permission, but just advising the

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Speaker 1: Deputy Attorney General where he's going. And if there's been

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Speaker 1: a problem uh the DAG, the deput Attorney General could

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Speaker 1: have stopped it, he hasn't. So obviously he's got the

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Speaker 1: blessing at this point of d o J as to

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Speaker 1: where the investigation has been and where it's going, I

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Speaker 1: just have about a minute. But let's talk about executive

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Speaker 1: privilege and the White House instructing Banner that it wanted

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Speaker 1: him to preserve of the president's option to exert executive

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Speaker 1: privilege yesterday in a Senate committee about things that happened

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Speaker 1: before the election, as well as at the White House.

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Speaker 1: What's your opinion of that broad definition of executive privilege

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Speaker 1: and that agrees ale minds can differ certainly on a

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Speaker 1: lot of these issues, but that's a tough one. I

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Speaker 1: don't think executive privilege extends to the election process. So

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Speaker 1: while they may want to keep the option open, I

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Speaker 1: think where the rubber hits the road, and this could

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Speaker 1: eventually go before a court who would be the arbiter. Obviously,

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Speaker 1: that's a tough that's a tough argument to play at.

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Speaker 1: Once the president is sworn in, that's a different conversation

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Speaker 1: four months before. He's not an executive so there's no privilege,

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Speaker 1: yes or no? Does he have to actually exert the

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Speaker 1: privilege before he requires other people? He does not. Others

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Speaker 1: can exert it before him. But he yes, he's just

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Speaker 1: keeping his options open because he knows once he exerts

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Speaker 1: executive privilege, then the courts are coming in all right.

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Speaker 1: Jeffrey Framer, managing director of the Berkeley Research Group US

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Speaker 1: Citizenship and Immigration Services, announced on Saturday That's restarted the

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Speaker 1: DOCTA program, following a court order earlier in the week

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Speaker 1: that required it to do so. A federal judge in

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Speaker 1: California had ruled the Obama era program providing deportation, protection

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Speaker 1: and work permits to young undocumented immigrants has to continue

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Speaker 1: while the case challenging its termination goes forward in court.

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Speaker 1: The Justice Department is appealing that decision to the Ninth Circuit,

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Speaker 1: but yesterday Justice announced that it would also be taking

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Speaker 1: the rare step of seeking direct Supreme Court review of

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Speaker 1: the judges order before the Ninth Circuit could even consider it.

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Speaker 1: Joining me is Leon Fresco, a partner at Holland and Knight. Leon.

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Speaker 1: Attorney General Jeff Sessions called this appeal straight to the

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Speaker 1: Supreme Court a rare step. How rare, it is incredibly rare,

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Speaker 1: and in fact, even though the Justices have discretion to

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Speaker 1: take on a case even before his through all of

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Speaker 1: the lower court levels. They don't do it often. It's

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Speaker 1: a procedure that's reserved for major national controversies, you know,

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Speaker 1: when especially when time is an urgent factor, like maybe

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Speaker 1: certifying an election, you know, for president or something like that.

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Speaker 1: It's not it's not something that is very common that

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Speaker 1: you see the Supreme Court skip the appellate court process.

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Speaker 1: What also seems unusual is that in neither appeal, the

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Speaker 1: one to the Ninth Circuit or this to the Supreme Court,

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Speaker 1: is the Justice Department seeking an emergency stay of the

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Speaker 1: judge's ruling, as it did with the travel band. So

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Speaker 1: if everything is then going forward until the Supreme Court

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Speaker 1: decides if it wants to take the case, and then

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Speaker 1: decides the case, why go straight to the Supreme Court?

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Speaker 1: You know, you're absolutely right, which is the reason they're

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Speaker 1: not seeking a stay. And it's the same issue here

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Speaker 1: again with regard to uh. Why the Supreme Court would

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Speaker 1: actually use this rare discretion and take the case is

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Speaker 1: because in both instances, you sort of have to prove

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Speaker 1: this irreparable harm that's going to happen if we don't

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Speaker 1: get a decision in this case, and it's hard to

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Speaker 1: prove you're given that doc has been around for five

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Speaker 1: and a half years. Number one, and number two, you

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Speaker 1: had the President just last week going around in a

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Speaker 1: room with twenty of America's top lawmakers and as do

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Speaker 1: all of you want to have let the doctor kids stay?

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Speaker 1: And they all said yes. So it's hard to show

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Speaker 1: what the irreparable harm would be to the government by

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Speaker 1: letting doctor continue while these cases are pending. Is it

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Speaker 1: hard to show the Supreme Court why they should take

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Speaker 1: this case now and interrupt the natural procedure of the case. Well, yes,

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Speaker 1: And what makes it extremely hard is this the argument

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Speaker 1: that you would normally make to the Supreme Court in

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Speaker 1: this instances. Look, we have this decision that's ruining the

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Speaker 1: congressional negotiations on this very important issue, and that's why

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Speaker 1: we need a determination now. And that's you know, and

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Speaker 1: it maybe lead into a government shutdown, etcetera. But the

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Speaker 1: problem is that would that would undermine the very arguments

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Speaker 1: that they've been making in this case, which is that

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Speaker 1: they said they they resend the Dacca because it was illegal,

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Speaker 1: not because they were looking for some sort of uh

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Speaker 1: government uh compromise where DOCCA would be tied to border

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Speaker 1: security and to other measures. And so if they start

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Speaker 1: admitting that that's their agenda here is they want to

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Speaker 1: be able to reach a compromise, and that compromise can't

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Speaker 1: be reached, it starts to undermine the argument for why

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Speaker 1: they resended DACA in the first place so wildly on

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Speaker 1: why are they going directly to the Supreme Court? Then

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Speaker 1: what's the reasoning? Well, I think the main issue is this,

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Speaker 1: which is that the Ninth Circuit is you know that

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Speaker 1: you have a very very very very small chance if

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Speaker 1: you're the Justice Department, to overturn the judges injunction in

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Speaker 1: the Ninth Circuit. And so what happens is if this

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Speaker 1: case were to take the ordinary course of time, it

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Speaker 1: is entirely conceivable, I would say more likely than not

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Speaker 1: that you could have Docta be in existence until the

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Speaker 1: middle of because the Supreme Court term is almost over.

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Speaker 1: And so if the Ninth Circuit were to take its

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Speaker 1: time and issue a thoughtful decision in May, let's say,

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Speaker 1: on this Ninth Circuit, on the Ninth Circuit DOCTA case,

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Speaker 1: then the Supreme Court term would be over. They'd have

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Speaker 1: to take the case in October and issue a decision

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Speaker 1: whenever they got around the issuing a decision, which you

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Speaker 1: know sometimes in these very hard cases, goes all the

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Speaker 1: way to May or June of the following year, So

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Speaker 1: that would be May or June of and I think

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Speaker 1: I think the Trump administration cannot bear the thought that

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Speaker 1: there would be this judicial dota for such a long

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Speaker 1: period of time. But if Session says going directly to

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Speaker 1: the Supreme Court means the issue may be resolved quickly,

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Speaker 1: but are they asking the justices to take it on

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Speaker 1: some kind of extraordinary Arey schedule or just their normal schedule,

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Speaker 1: which would mean it would also be months and months

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Speaker 1: and months before it gets resolved. Well, to be clear,

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Speaker 1: since the filing hasn't been filed, I have to be

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Speaker 1: in speculating. But but what I can say for certain

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Speaker 1: is this, they're trying to get the case argued by March,

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Speaker 1: which would be the last arguments that the Court would

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Speaker 1: have for the term, so that it could be decided

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Speaker 1: by the end of this term, which would be the

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Speaker 1: beginning of June. And so that's their ideal time frame.

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Speaker 1: Here will the courts allow that, I think it will

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Speaker 1: be up to you know, I think they're they're watching

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Speaker 1: everything that's happening in the Congress like everyone else is.

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Speaker 1: And maybe you have a Justice Kennedy who says, look,

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Speaker 1: I don't want my legacy to be that I sent

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Speaker 1: a million kids into illegal status. You know, maybe I

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Speaker 1: don't want to do that. Maybe I'll take my time

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Speaker 1: here and and allow this process to last another year,

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Speaker 1: year and a half. So you think it's unlikely that

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Speaker 1: they're the Supreme Court is going to intervene. It is

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Speaker 1: so to make a prediction here, because you know, Justice

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Speaker 1: Kennedy was one of the four votes when the Court

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Speaker 1: deadlock last year at four four, which leads that, you know,

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Speaker 1: lead you to believe that he does think a program

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Speaker 1: like this is problematic. But I also think that he

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Speaker 1: may not want to do anything grow who it is

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Speaker 1: in order to expedite the demise of the doctor program

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Speaker 1: as a sort of lasting legacy of his career. And

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Speaker 1: so I can foresee us an area. I mean, if

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Speaker 1: somebody puts a gun to my head, I would I

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Speaker 1: would foresee a scenario where the Court doesn't take this kid.

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Speaker 1: I'm not going to do that leon Now. Attorney General

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Speaker 1: Jeff Session said in a statement that it defies both

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Speaker 1: law and common sense. That a single district court in

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Speaker 1: San Francisco has halted the administration's plans, but didn't the

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Speaker 1: same thing happen with the various iterations of the travel band.

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Speaker 1: It's a single judge here, or they're making national decisions.

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Speaker 1: Well forgetting about just what's been done to the Trump administration.

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Speaker 1: The exact same Attorney general that he's been working with

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Speaker 1: to say data is illegal were the ones who filed

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Speaker 1: the case in Texas during the Obama administration. And it

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Speaker 1: was just one judge on the border in the Southern

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Speaker 1: District of Texas who halted the deferred action the DAPPA program,

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Speaker 1: that deferred action program that would have gone for the

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Speaker 1: parents of the dreamers, And so that seems that's what

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Speaker 1: seems to be happening now, is people go to one

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Speaker 1: judge in a favorable district and they get a ruling,

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Speaker 1: and then that judge makes it a nationwide injunction. And

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Speaker 1: the only solution to that would be some congressional statutes

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Speaker 1: that would prevent that. But both sides have been doing

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Speaker 1: that for years now, and so nobody can claim to

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Speaker 1: be surprised that this is happening. And at some point

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Speaker 1: is that procedure going to be appealed, or is someone

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Speaker 1: going to look at it, perhaps a Supreme court. Well,

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Speaker 1: there is case law on this that says you can't

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Speaker 1: issue a nationwide injunction unless there are certain circumstances that

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Speaker 1: are met. But what the courts in the immigration context is, Look,

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Speaker 1: we can't have different immigration laws in different states in

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Speaker 1: this country. That creates a sort of just bizarre incentive

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Speaker 1: structure for people to go to different places. And that's

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Speaker 1: not you. I mean you have one Americas have one

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Speaker 1: immigration policy. Yes. Thanks, thanks, thanks so much as always

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Speaker 1: for helping us sort through these difficult issues. That's Leon Fresco.

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Speaker 1: He's a partner at Holland and Night. Thanks for listening

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Speaker 1: to the Bloomberg Law Podcast. You can subscribe and listen

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

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Speaker 1: dot com slash podcast. I'm June Brosso. This is Bloomberg.

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Speaker 1: Ye