WEBVTT - How the Rich Get Bail 0:00:03.200 --> 0:00:07.960 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:10.200 --> 0:00:13.080 In less than a week, Trump allied Tom Barrick was 0:00:13.160 --> 0:00:16.720 freed on two d fifty million dollars bail, and Nicola 0:00:16.800 --> 0:00:21.200 Corps founder Trevor Milton was released on one million, two 0:00:21.200 --> 0:00:24.840 of the highest US bail amounts in recent years. While 0:00:24.920 --> 0:00:28.480 two back to back nine figure bail packages are unusual, 0:00:28.920 --> 0:00:32.159 enormous bonds are not a new phenomenon. Joining me is 0:00:32.240 --> 0:00:35.760 Darryl Brown, a professor at the University of Virginia Law School, 0:00:36.159 --> 0:00:39.800 explain how bail is usually set. Generally, especially in the 0:00:39.840 --> 0:00:43.280 federal system, there's always a hearing before a judge who 0:00:43.680 --> 0:00:47.880 assesses whether the person should be released or should be detained. 0:00:47.920 --> 0:00:50.800 In the federal courts, there's a presumption that people should 0:00:50.800 --> 0:00:55.400 be released, even though most federal defendants are actually detained 0:00:55.400 --> 0:00:58.840 before trial. But that's because they meet specific criteria that 0:00:58.880 --> 0:01:01.440 they've been charged with violent crime or they have a 0:01:01.520 --> 0:01:05.559 violent criminal record. But basically, judges are weighing the likelihood 0:01:05.560 --> 0:01:07.920 that a person, if they're released, it's going to come 0:01:07.959 --> 0:01:11.480 back to court for trial, and whether they're going to 0:01:11.600 --> 0:01:14.320 pose any danger in the meantime to other people, or 0:01:14.520 --> 0:01:17.480 intimidating witnesses or destroying evidence and the like. So the 0:01:17.560 --> 0:01:22.160 vast majority of charged suspects in the state courts are 0:01:22.360 --> 0:01:25.800 eligible for release and are given bail, given some amount 0:01:25.840 --> 0:01:28.600 of bail, or are released without a cash bail amount. 0:01:28.720 --> 0:01:31.640 But in the federal system, the majority are detained either 0:01:31.680 --> 0:01:33.720 because there are a flight risk and might lead the 0:01:33.720 --> 0:01:36.240 country and not sure for court, or because they're a 0:01:36.360 --> 0:01:40.200 danger to someone. We've seen two back to back nine 0:01:40.280 --> 0:01:44.399 figure bail packages for Trump allied Tom Barrack that was 0:01:44.480 --> 0:01:49.680 two million dollars and Nicola founder Trevor Milton for one 0:01:50.200 --> 0:01:54.520 million dollars. Why do we see those huge bail amounts, 0:01:54.560 --> 0:01:57.720 So those are really unusual amount Even Alreadie made off 0:01:57.760 --> 0:02:01.320 back or fifteen years ago when pons ice Can fell apart, 0:02:01.880 --> 0:02:04.800 he was originally given a ten million dollar bail, I think, 0:02:05.000 --> 0:02:08.680 and couldn't make that because all his assets were lost 0:02:08.760 --> 0:02:11.600 or frozen by that time. So these hundred million, two 0:02:11.639 --> 0:02:14.560 hundred million dollar day annunts are really unusual. It's just 0:02:14.600 --> 0:02:17.760 because the defendants are so wealthy that the judges, on 0:02:17.800 --> 0:02:20.240 the one hand, sure we're both of these defendants, doesn't 0:02:20.240 --> 0:02:24.120 have any concern about them committing violent crimes while they're released. 0:02:24.440 --> 0:02:27.160 But I assume what this, what this bail is trying 0:02:27.200 --> 0:02:29.920 to do is they are a risk for fleeing the country, 0:02:30.000 --> 0:02:32.040 for not showing up back in back in court, and 0:02:32.080 --> 0:02:35.280 they held a lot of money and resources and sort 0:02:35.320 --> 0:02:38.440 of capacity to do that. So I think the judges 0:02:38.560 --> 0:02:41.280 just trying to make sure that even these defendants that 0:02:41.280 --> 0:02:44.080 are that wealthy have to put up enough money that 0:02:44.120 --> 0:02:46.880 they're unlikely to walk away from it. That this is 0:02:46.880 --> 0:02:50.079 probably a big money even for these defendants. If it 0:02:50.240 --> 0:02:53.440 was just a mere million dollars bail, right, they might 0:02:53.440 --> 0:02:55.720 be willing to walk away from that and just live 0:02:55.919 --> 0:02:59.120 somewhere where they can't be extradited back to a U. S. Court. 0:02:59.240 --> 0:03:01.480 But I'm sure the denovation is because the defendants are 0:03:01.520 --> 0:03:04.200 so wealthy at the judges trying to make sure that 0:03:04.240 --> 0:03:05.840 this is an amount that they will that they will 0:03:05.880 --> 0:03:08.200 pay attention to. I don't know the details of their 0:03:08.280 --> 0:03:11.200 bail conditions. I feel virtually certain there are other conditions, 0:03:11.240 --> 0:03:13.519 such as they probably had to give up their passports. 0:03:13.560 --> 0:03:17.000 There's limits on where they can travel. So the combination 0:03:17.040 --> 0:03:19.960 of the amount of money and taking their passport are 0:03:20.040 --> 0:03:22.639 tactics that are targeted to making sure that they show 0:03:22.680 --> 0:03:24.359 back up in court and don't and don't flee the 0:03:24.400 --> 0:03:26.960 country in the meantime. What I have always wondered, isn't 0:03:27.000 --> 0:03:30.359 there more security if you're worried about them jumping bail? 0:03:30.600 --> 0:03:34.600 Isn't there more security in the ankle bracelets and the 0:03:34.680 --> 0:03:39.640 GPS monitoring? Are those pretty fool proof? They are? I 0:03:39.640 --> 0:03:42.280 have not heard of any cases actually where people have 0:03:42.560 --> 0:03:45.360 beat those. Somehow you can cut them off or somehow 0:03:45.440 --> 0:03:48.160 remove them, but then there's immediately an alarm, So you 0:03:48.160 --> 0:03:49.960 don't have a lot of time if that's your plan. 0:03:50.240 --> 0:03:52.840 But it's just not It's not unusual for judges to 0:03:53.360 --> 0:03:56.520 impose our cash bail amounts and other conditions such as 0:03:56.560 --> 0:04:00.120 taking the passport and electronic monitoring of some kind than 0:04:00.160 --> 0:04:03.960 ankle bracelet or something else. And so for various reasons, 0:04:03.960 --> 0:04:07.120 just depending on the defendants, judges might not be willing 0:04:07.160 --> 0:04:10.240 to just trust the electronic monitoring to take a you know, 0:04:10.320 --> 0:04:12.720 the sort of worst case scenario from the judge's perspective, 0:04:13.160 --> 0:04:15.800 defendant as an ankle monitor can still flee, it's just 0:04:15.840 --> 0:04:17.640 that we'll be able to track him as he gets 0:04:17.640 --> 0:04:20.080 on the private jet and flies out of the country, 0:04:20.279 --> 0:04:23.279 and so the cash bail is a is another device 0:04:23.400 --> 0:04:26.480 to hopefully keep them in the country and showing up 0:04:26.480 --> 0:04:30.800 for trial. So now Barrick spent three nights in jail 0:04:31.520 --> 0:04:35.200 as his bail package was being negotiated. So explain what 0:04:35.320 --> 0:04:39.160 happens before they even get into court in these cases 0:04:39.279 --> 0:04:42.600 of prominent people or people who have money, their lawyers 0:04:42.640 --> 0:04:47.200 are negotiating with the prosecutors about a bail package. Yeah, 0:04:47.640 --> 0:04:50.120 I would speculate that he was in jail for a 0:04:50.160 --> 0:04:54.080 couple of nights because the prosecutors wanted him to spend 0:04:54.080 --> 0:04:56.919 a night or two in jail. With a defendant like Barrick, 0:04:57.040 --> 0:05:00.800 his lawyers were almost certainly talking to the Test Department 0:05:00.880 --> 0:05:05.040 before he was arrested and could have negotiated on terms 0:05:05.040 --> 0:05:07.960 that he would be immediately bailed out. I suspect the 0:05:07.960 --> 0:05:10.640 prosecutors just didn't want to do that, and so they 0:05:10.720 --> 0:05:12.719 chose the time and date for arrest, and it took 0:05:12.720 --> 0:05:15.120 a couple of days to then arrange the bail terms. 0:05:15.160 --> 0:05:18.080 But that's really at the discretion, I guess, or the 0:05:18.080 --> 0:05:20.320 tactical choice. Maybe it's a better way to put it 0:05:20.480 --> 0:05:23.279 by the Justice Department, because I'm sure his lawyers were 0:05:23.480 --> 0:05:27.080 ready and willing and probably trying to negotiate bail conditions 0:05:27.080 --> 0:05:29.479 that he could meet immediately upon arrest and not have 0:05:29.560 --> 0:05:32.520 to do any any time in jail. The typical defendant, 0:05:32.560 --> 0:05:34.920 of course, doesn't have a lawyer, is sort of talking 0:05:34.920 --> 0:05:38.280 to prosecutors before they're arrested or before they're charged, and 0:05:38.320 --> 0:05:41.279 so it's fairly routine for defendants to spend one night 0:05:41.360 --> 0:05:43.400 or three or four or five nights in jail, either 0:05:43.400 --> 0:05:45.120 before their bail is set or before they can make 0:05:45.160 --> 0:05:47.280 their bail. What makes it a little unusual here is 0:05:47.320 --> 0:05:49.240 because the defendants are so rich that you sort of 0:05:49.240 --> 0:05:51.800 would expect them to be able to avoid that. Another 0:05:51.880 --> 0:05:57.200 high profile defending Trump organization, the chief financial officer, Alan Weisselberg. 0:05:57.560 --> 0:06:01.120 He was released without having to pay any bail, because 0:06:01.160 --> 0:06:04.719 it seems like in high profile cases they usually get 0:06:04.800 --> 0:06:08.200 some bail. Why would he be released without posting any 0:06:08.279 --> 0:06:11.760 kind of bail? Yeah, that's interesting. All that I can 0:06:11.920 --> 0:06:15.919 speculate is that the charges were sufficiently different and the 0:06:16.040 --> 0:06:19.200 judge made a different assessment of his likelihood to flee, 0:06:19.640 --> 0:06:23.240 such that the judge ended up being satisfied that Weislberg 0:06:23.360 --> 0:06:26.760 would not flee if he had merely other other conditions, 0:06:26.760 --> 0:06:29.320 probably restrictions on his travel, maybe he had to give 0:06:29.400 --> 0:06:32.760 up his passport. All these decisions or just individual decisions 0:06:32.760 --> 0:06:35.240 by the judge assessing the risk that the defendant is 0:06:35.279 --> 0:06:38.320 going to flee. Basically because all of these rich white 0:06:38.360 --> 0:06:41.000 collar defendants, the kind of risk of that they'll pose 0:06:41.080 --> 0:06:44.479 a risk of criminal violence to other people isn't really 0:06:44.480 --> 0:06:46.680 on the table, So the judges really just paying attention 0:06:46.680 --> 0:06:48.000 to whether they're going to show up or not. And 0:06:48.040 --> 0:06:50.440 I think the judge just must have found very different 0:06:50.440 --> 0:06:54.200 circumstances in Weiselberg's case versus Barrett. And I'm wondering if 0:06:54.400 --> 0:06:58.479 the nature of the charges sometimes keeps a person in prison, 0:06:58.560 --> 0:07:01.560 because Galaine max Well put up a twenty eight and 0:07:01.560 --> 0:07:05.680 a half million dollar package and she's trying multiple times, 0:07:05.760 --> 0:07:10.040 and she's awaiting trial on sex trafficking charges connected to 0:07:10.760 --> 0:07:14.520 Jeffrey Epstein, and I wonder if sometimes it's the nature 0:07:14.640 --> 0:07:18.120 of the charges and the amount of publicity. Yeah, it 0:07:18.240 --> 0:07:20.960 is absolutely the nature of the charges sometimes, especially in 0:07:21.000 --> 0:07:23.760 federal court where she is charged in there and a 0:07:23.960 --> 0:07:27.400 bifel Burger charge. So the federal bail statute very specifically 0:07:27.480 --> 0:07:31.840 gives judges authority to detain people in jail until their 0:07:31.880 --> 0:07:35.440 trial they without setting any amount of bail. The judges 0:07:35.560 --> 0:07:39.080 can just or entertained if they're charged with certain crimes, 0:07:39.120 --> 0:07:42.680 and those crimes are basically violent crimes, large scale drug crimes, 0:07:42.920 --> 0:07:46.680 and child abuses or human trafficking charges. And so I 0:07:46.720 --> 0:07:49.200 feel virtually certain you're right that the basis for her 0:07:49.440 --> 0:07:51.800 being detained and not getting bailed as the nature of 0:07:51.800 --> 0:07:54.880 the child sex trafficking charges as she's that she's charged with. 0:07:55.000 --> 0:07:57.800 There's a specific provision in the federal law that allows 0:07:57.840 --> 0:08:00.680 judges to detain people who are charged with those offenses 0:08:00.760 --> 0:08:02.880 and to deny them bail. I want to turn for 0:08:02.880 --> 0:08:06.360 a moment away from the wealthy people to the average 0:08:06.600 --> 0:08:10.800 or the poor. The vast majority of people are not 0:08:10.880 --> 0:08:13.640 making these deals with prosecutors, are they. They're just going 0:08:13.680 --> 0:08:17.320 before the judge, and the judge is setting the bail. Yeah. 0:08:17.440 --> 0:08:19.880 And even in these high profile cases like Barrett, where 0:08:19.920 --> 0:08:22.760 his lawyers are negotiating with the prosecutors, the judge still 0:08:22.760 --> 0:08:24.320 has to sign off on that. It's still the judge 0:08:24.360 --> 0:08:26.760 who issues the official bail order or or makes the 0:08:26.800 --> 0:08:29.120 official decision. It's sort of like a plea bargain for 0:08:29.240 --> 0:08:31.640 pre trial release. The prosecutor and the defense attorney get 0:08:31.680 --> 0:08:34.920 together and negotiates some terms, and then the judge typically 0:08:34.960 --> 0:08:37.679 approves it but to ride. And with the vast majority 0:08:37.679 --> 0:08:41.240 of defendants, the ordinary defendants and poor defendants, there's almost 0:08:41.240 --> 0:08:44.319 ever any of that negotiation between the prosecutor and defense 0:08:44.320 --> 0:08:47.160 attorney before the defendant has just brought to a hearing 0:08:47.200 --> 0:08:49.120 before a judge, and the judge will get some basic 0:08:49.160 --> 0:08:53.160 information about the defendant and about the charges. Sometimes they'll 0:08:53.200 --> 0:08:56.520 have a defense attorney at that first bail hearing, sometimes not, 0:08:56.679 --> 0:08:58.800 and the judge will make a decision often a much 0:08:58.880 --> 0:09:01.640 less information. If they can't come up with the bail. 0:09:02.240 --> 0:09:04.520 What happens when they go to a bondsman, Well, there's 0:09:04.520 --> 0:09:07.679 a fee. So if a judge imposes cash bail of 0:09:07.960 --> 0:09:11.280 say a thousand dollars and the defendant camp doesn't have 0:09:11.320 --> 0:09:13.520 a thousand dollars to hand over to the court, which 0:09:13.520 --> 0:09:15.280 you would get back when you showed up for court, 0:09:15.320 --> 0:09:16.760 but a lot of people don't have that kind of 0:09:16.840 --> 0:09:18.960 cash sitting around, so it defended would go to a 0:09:18.960 --> 0:09:22.480 bail bondsman. A bail bondsman would typically charge ten percent, 0:09:22.800 --> 0:09:25.440 maybe a little more as a fee for the bail. 0:09:25.559 --> 0:09:28.079 So the bail bondsman would put up a thousand dollars 0:09:28.160 --> 0:09:32.200 to the court and would charge the defendant hundred dollars 0:09:32.240 --> 0:09:34.920 for that. If the defendant doesn't show up, then the 0:09:34.920 --> 0:09:37.640 bail bondsman loses that thousand dollars he gave to the court. 0:09:38.000 --> 0:09:39.960 So the bail bondsman has a real instead of to 0:09:40.000 --> 0:09:42.240 make sure that the defendant does show up. That's where 0:09:42.240 --> 0:09:45.120 bounty hunters come in. And when the defendants show up 0:09:45.120 --> 0:09:47.840 in court, then the bail bondsman makes that hundred dollars profit. 0:09:48.120 --> 0:09:52.040 There's been a movement to ban cash bail because of 0:09:52.080 --> 0:09:55.120 the inequities in the system. Do you agree that there 0:09:55.120 --> 0:09:58.439 are inequities in the system and the bail system between 0:09:58.440 --> 0:10:02.240 the rich and the poor. There absolutely is with cash bail. 0:10:02.640 --> 0:10:05.280 There's lots of god a lots of studies, lots of 0:10:05.320 --> 0:10:09.480 examples of people in the New York City jails and 0:10:10.000 --> 0:10:13.800 elsewhere in other states who have relatively low bail amounts 0:10:13.800 --> 0:10:16.240 set or what would seem like relatively low bail amounts 0:10:16.280 --> 0:10:21.120 five hundred dollars, a thousand dollars, and they're too poor 0:10:21.160 --> 0:10:23.800 to make that amount and can't even pay the bail 0:10:23.840 --> 0:10:26.240 bondsman fee for the bail bondsman to make that amount, 0:10:26.440 --> 0:10:29.840 and so there's lots of defendants. I think in many jails, 0:10:29.840 --> 0:10:33.319 it's the majority of defendants who are awaiting trial. If 0:10:33.320 --> 0:10:36.559 they're still in jail, it's because they have the bail 0:10:36.679 --> 0:10:39.520 that they can't make they don't have enough money to 0:10:39.840 --> 0:10:43.080 post or to pay bail bondsmen, rather than the fact 0:10:43.080 --> 0:10:46.440 that they're that they've been ordered to stay in jail 0:10:46.480 --> 0:10:49.600 and don't even have the opportunity to make bail. So, yeah, 0:10:49.640 --> 0:10:52.920 there's lots of defendants who can't make even seemingly fairly 0:10:52.960 --> 0:10:55.719 low amounts of bail, and there's pretty clear evidence that 0:10:55.720 --> 0:10:58.839 that affects the outcomes of their cases when defendants are 0:10:58.920 --> 0:11:02.000 detained in jail for even several days. Right, there's lots 0:11:02.040 --> 0:11:05.679 of definity to have family obligations or have jobs, and 0:11:05.720 --> 0:11:07.640 they work about losing their jobs or they do lose 0:11:07.640 --> 0:11:10.160 their job or put a strain on their on their families, 0:11:10.200 --> 0:11:12.120 and so that makes defend it's much more eager to 0:11:12.440 --> 0:11:14.720 plead guilty, at least if it's at the sort of 0:11:14.720 --> 0:11:16.880 low end of the scale where it's just a misdemeanor, 0:11:17.080 --> 0:11:19.480 and so the inability to make bail sort of puts 0:11:19.559 --> 0:11:21.840 pressure on them to plea bargain. But if it's something 0:11:21.840 --> 0:11:24.440 that they're not going to plead guilty too, then they 0:11:24.520 --> 0:11:26.600 end up staying in jail for weeks or months if 0:11:26.600 --> 0:11:29.199 they can't make the bail. That's the real criticism of 0:11:28.840 --> 0:11:32.040 the cash bail system. That and the fact that there 0:11:32.080 --> 0:11:34.439 are other ways to make sure people show up to 0:11:34.600 --> 0:11:38.679 court without making them post money. Right, So, several states 0:11:38.679 --> 0:11:42.120 now have eliminated cash bail of their countries like England 0:11:42.160 --> 0:11:45.520 don't use cash bail anymore. There are various other ways 0:11:45.559 --> 0:11:48.000 to make sure people are good risk to be released 0:11:48.040 --> 0:11:49.760 before trial and that they're going to show back up 0:11:50.040 --> 0:11:52.000 Besides cash bail, What are the ways are there to 0:11:52.040 --> 0:11:56.400 make sure that people show up. One modern technology way, 0:11:56.480 --> 0:11:59.960 right is just electronic monitoring, although that costs somebody money. 0:12:00.320 --> 0:12:02.880 There's often a fee charge to the defendants for that 0:12:03.000 --> 0:12:07.000 electronic monitoring service, but really a lot of defendants don't 0:12:07.040 --> 0:12:09.960 need even that to show back up to court, or 0:12:10.000 --> 0:12:12.920 don't need that incentive or that or that restriction, as 0:12:12.920 --> 0:12:15.880 long as defendants have real ties to the community, if 0:12:15.880 --> 0:12:19.160 they have family and jobs, and a long history in 0:12:19.200 --> 0:12:23.200 a given community where they're arrested. The data is very 0:12:23.200 --> 0:12:25.640 clear that defendants who did that certain kind of profile 0:12:25.640 --> 0:12:27.760 are very likely to show back up the court, even 0:12:27.800 --> 0:12:30.840 if they're charged with a fairly serious crime. Just because 0:12:30.840 --> 0:12:33.360 you might decide to not show up for trial where 0:12:33.400 --> 0:12:36.040 you think you might be convicted, doesn't mean that you're 0:12:36.040 --> 0:12:38.079 then scott free, right and you just have a warrant 0:12:38.080 --> 0:12:41.080 out for your arrest, And it's not an easy avoid 0:12:41.240 --> 0:12:45.360 jail strategy. So just really screening defendants, and then there's 0:12:45.440 --> 0:12:48.480 really good evidence that just using mechanisms like making them 0:12:48.559 --> 0:12:52.000 check in with a probation officer and sending them reminders 0:12:52.040 --> 0:12:53.840 about when their court date is a lot of people 0:12:53.840 --> 0:12:56.440 fail a short for court just because they don't have transportation, 0:12:56.720 --> 0:12:58.680 or they just sort of lose track of their court 0:12:58.720 --> 0:13:00.800 date or just need a reminder. Are some very simple 0:13:00.840 --> 0:13:03.480 things like that, but actually improved the hudds people will 0:13:03.480 --> 0:13:06.160 show back up for court. And in places like Washington, 0:13:06.280 --> 0:13:08.400 d C. Which hasn't imposted cash baill and people for 0:13:08.400 --> 0:13:13.280 almost thirty years, they released the defendants before trial and 0:13:13.600 --> 0:13:17.320 almost the show back up for trial. The criticism of 0:13:17.480 --> 0:13:20.160 cash bail is that for a lot of defendants who 0:13:20.160 --> 0:13:24.520 are given cash bail, that's an unnecessary condition as a 0:13:24.520 --> 0:13:26.320 safeguard to make sure that they're going to show back up. 0:13:26.320 --> 0:13:29.120 There are other, less restrictive, less costly ways to do it. 0:13:29.280 --> 0:13:32.640 That's Professor Darryl Brown of the University of Virginia Law School. 0:13:34.440 --> 0:13:37.640 After a two year fight, the Jostice Department has directed 0:13:37.640 --> 0:13:41.480 the Treasury Department to hand over former President Donald Trump's 0:13:41.520 --> 0:13:45.480 tax returns to Congress. The decision reverses a twenty nine 0:13:45.840 --> 0:13:49.760 opinion that the Treasury Department should not release the returns. 0:13:50.160 --> 0:13:53.080 But the fight isn't over. Joining me is William Banks, 0:13:53.080 --> 0:13:57.520 a professor at Syracuse University College of Law, tell us 0:13:57.559 --> 0:14:01.839 about the Justice Department's Office of Egal Council ruling on 0:14:02.240 --> 0:14:07.559 the Trump taxes. So the Justice Department is following up because, 0:14:07.640 --> 0:14:12.320 as many of your listeners will recall, the Supreme Court 0:14:12.360 --> 0:14:16.240 the United States ruled last summer the summer of that 0:14:16.840 --> 0:14:22.000 Trump had no legal basis for claiming either immunity or 0:14:22.120 --> 0:14:25.720 privilege as a broad based matter with regard to his 0:14:25.880 --> 0:14:29.440 taxes in response to several subpoenas. I believe there were 0:14:29.520 --> 0:14:36.640 four broad subpoenas came from different congressional committees seeking financial 0:14:36.640 --> 0:14:42.760 information about Donald Trump, about his children and other family members, businesses, 0:14:42.920 --> 0:14:49.080 all associated with the Trump organization, and the Supreme Court 0:14:49.280 --> 0:14:54.440 repudiated the president in a broad brushed opinion, but also 0:14:54.560 --> 0:14:58.760 said that the lower courts need to analyze each subpoena 0:14:58.920 --> 0:15:02.160 carefully to the m and whether or not Congress is 0:15:02.280 --> 0:15:07.400 properly respected the interests of the president, and whether Congress 0:15:07.440 --> 0:15:12.320 has a legitimate legislative purpose in requesting the information in 0:15:12.400 --> 0:15:17.920 pursuance of its committees or responsibilities. That took some time. 0:15:18.000 --> 0:15:22.440 Of course, lower courts rejected Trump's attempts to block the 0:15:22.600 --> 0:15:26.160 subpoenas after the Supreme Court ruling. And so here we 0:15:26.200 --> 0:15:30.160 are in the winter spring into the summer of one 0:15:30.640 --> 0:15:35.560 and the court contest was effectively over. Uh So the 0:15:35.560 --> 0:15:39.200 committee said, give us the stuff. And now is the 0:15:39.320 --> 0:15:43.040 Justice Department's turned to weigh in and say, indeed, the 0:15:43.040 --> 0:15:45.360 information which is in the hands, of course of the 0:15:45.480 --> 0:15:50.240 Department of Treasury, should be turned over to the congressional committees. 0:15:50.840 --> 0:15:54.000 So now I doubt that the legal battle is over, 0:15:54.120 --> 0:15:59.720 because we all know the former president Trump's proclivities to litigate, 0:16:00.120 --> 0:16:03.520 So now he can try to block Treasury from turning 0:16:03.520 --> 0:16:08.200 the materials over to Congress. What Treasury said, in a 0:16:08.320 --> 0:16:13.840 nutshell was that the committees had each demonstrated a legitimate 0:16:13.920 --> 0:16:19.760 legislative interest in the topics within the committee's authorized authority, 0:16:20.120 --> 0:16:26.440 money laundering and appropriate foreign financial relationships. Still some concern 0:16:26.480 --> 0:16:31.560 about Russian operations influencing US political processes. And then, of course, 0:16:31.880 --> 0:16:35.880 perhaps the most important one, whether the audit policies of 0:16:35.920 --> 0:16:38.600 the United States need to be revised to take into 0:16:38.640 --> 0:16:43.080 account another president like Donald Trump, who seeks to avoid 0:16:43.440 --> 0:16:48.440 disclosing his personal stuff. So could the Treasury Department just 0:16:48.560 --> 0:16:53.400 have handed over the tax returns to the committee? The 0:16:53.400 --> 0:16:57.920 Pressury Department notified a federal judge that it reached an 0:16:57.960 --> 0:17:00.760 agreement with the House to hand over the returns. Why 0:17:00.760 --> 0:17:03.440 couldn't they just have handed them over? You know, they 0:17:03.480 --> 0:17:07.000 could have. I think the reason for o l C, 0:17:07.240 --> 0:17:10.680 the Office of Legal Counsel, stepping in at this point 0:17:10.800 --> 0:17:14.480 is that the Trump o LC had offered an opinion 0:17:14.720 --> 0:17:20.320 in coming to the opposite conclusion that the committees had 0:17:20.359 --> 0:17:25.240 not demonstrated a legitimate legislative purpose and that the president's 0:17:25.280 --> 0:17:29.560 prerogatives came out on top. In a contest with Congress 0:17:29.560 --> 0:17:33.360 in any case, So this OLC opinion was in effect 0:17:33.760 --> 0:17:37.520 needed to I'm going to use the verb to trump 0:17:37.880 --> 0:17:43.600 the earlier one opinion. So I think because justice was 0:17:43.680 --> 0:17:48.080 involved in justice really needed to be involved this time. 0:17:48.359 --> 0:17:51.320 The Office of Legal Council is an independent part of 0:17:51.320 --> 0:17:55.000 the Justice Department that is supposed to represent the executive 0:17:55.000 --> 0:17:58.679 branch in its dealings with the remaining parts of government. 0:17:59.000 --> 0:18:02.160 So did the welsee have to say we were wrong 0:18:02.240 --> 0:18:06.879 before they they soft pedaled that argument. It's a thirty 0:18:06.960 --> 0:18:12.240 nine page opinion. It reads very carefully. I think Don Johnson, 0:18:12.320 --> 0:18:16.400 who's now that the acting head of OLC, was very 0:18:16.440 --> 0:18:21.720 careful not to harshly repudiate the opinion. But she said 0:18:21.760 --> 0:18:25.520 she thought that they undervalued some of the interests that 0:18:25.640 --> 0:18:30.280 were articulated by the congressional committees in seeking the information. 0:18:30.359 --> 0:18:34.840 But she also made a very important and certainly obvious 0:18:34.960 --> 0:18:38.719 point about what's different now from before. We're dealing with 0:18:38.760 --> 0:18:43.000 a former president, not a sitting president. So are we 0:18:43.119 --> 0:18:49.160 actually going to see Donald Trump's tax returns? It certainly 0:18:49.200 --> 0:18:52.760 looks that way. Neither you nor I are likely to 0:18:52.800 --> 0:18:55.159 see that. We certainly may not as a result of 0:18:55.200 --> 0:18:59.880 these subpoenas, because once they're turned over to the House committees, 0:19:00.080 --> 0:19:04.639 there are requirements inside the House to assure the privacy 0:19:04.760 --> 0:19:07.320 and requires an affirmative vote to the committee even to 0:19:07.400 --> 0:19:11.119 share the material with other members of the House representatives, 0:19:11.200 --> 0:19:14.560 much less to make them public. That could happen, but 0:19:14.560 --> 0:19:18.120 it would require affirmative votes in the House. Of course, 0:19:18.119 --> 0:19:21.479 there may be a leak, which the Trump lawyers usually 0:19:21.520 --> 0:19:25.800 pointed out in court arguments. In another move, the Justice 0:19:25.800 --> 0:19:29.520 Department has turned over to Congress handwritten notes of a 0:19:29.560 --> 0:19:34.920 December Trump held with Acting Attorney General Jeffrey Rosen and 0:19:35.080 --> 0:19:40.159 Acting Deputy Attorney General Richard Donohue. The notes by Donahue 0:19:40.359 --> 0:19:44.040 showed Trump pressuring the acting Attorney General to declare that 0:19:44.880 --> 0:19:49.480 election was corrupt in his ongoing attempt to overturn the results. 0:19:50.280 --> 0:19:54.480 Why did the Justice Department turn these notes over this too? 0:19:54.640 --> 0:19:58.199 You're correct to flag this June. This was an extraordinary 0:19:59.040 --> 0:20:03.359 development in the Justice Department. As as you and I know, 0:20:03.520 --> 0:20:06.840 and many of your listeners will know, that the Justice 0:20:06.840 --> 0:20:12.040 Department typically fights to keep secret private discussions between a 0:20:12.080 --> 0:20:15.960 president and a member of his cabinet to avoid setting 0:20:16.000 --> 0:20:19.600 a precedent that would prevent officials in the future from 0:20:19.760 --> 0:20:24.520 candidly advising presidents out of concern that the conversations might 0:20:24.640 --> 0:20:30.359 later be made public. This time, the OLC Justice Department 0:20:30.480 --> 0:20:33.679 said that handing the notes to Congress is part of 0:20:33.720 --> 0:20:37.560 a pattern of allowing scrutiny of Mr Trump's efforts to 0:20:37.720 --> 0:20:41.720 overturn the election. I think this was such an extraordinary 0:20:41.720 --> 0:20:46.000 series of developments between election day and in January six 0:20:46.160 --> 0:20:51.399 that they decided they had to provide unrestricted material and 0:20:51.560 --> 0:20:56.320 even testimony if those if Rosen or Donahue are so inclined, 0:20:56.359 --> 0:21:01.119 they could testify openly without restrictions to investing aids on 0:21:01.200 --> 0:21:05.000 the House Oversight and Reform and the Senate Judiciary committees, 0:21:05.280 --> 0:21:09.800 because the congressional investigators are examining wrongdoing by a sitting president, 0:21:10.000 --> 0:21:14.760 which is an extraordinary circumstance in and of itself. Executive 0:21:14.760 --> 0:21:18.640 privilege is meant to benefit the country, not the president 0:21:18.680 --> 0:21:22.960 as an individual, so invoking it over Trump's efforts to 0:21:23.040 --> 0:21:27.040 push his personal agenda would be inappropriate. That's what they concluded. 0:21:27.640 --> 0:21:32.000 Is it unusual for a deputy Attorney general to be 0:21:32.160 --> 0:21:35.240 taking notes about a conversation with the president or is 0:21:35.280 --> 0:21:38.359 that par for the course? I think that's par for 0:21:38.440 --> 0:21:41.159 the course. These these are handwritten notes. These are the 0:21:41.280 --> 0:21:43.720 kind of notes that any good lawyer would take in 0:21:43.760 --> 0:21:46.439 an important meeting at any time. We all do it. 0:21:47.600 --> 0:21:49.400 You want to have some kind of records so that 0:21:49.440 --> 0:21:53.479 you can memorialize the meeting, particularly if questions about it 0:21:53.560 --> 0:21:57.320 arise later on. That was good lawyer, and contemporaneous notes 0:21:57.359 --> 0:22:02.159 are considered strong evidence to support to stimony. Yes, that's correct, 0:22:02.200 --> 0:22:05.639 if it ever comes to testimony. Right. The tone was 0:22:05.680 --> 0:22:08.399 that he was asking for them to help him overturn 0:22:08.520 --> 0:22:11.280 the election results, and they said, we can't just snap 0:22:11.320 --> 0:22:13.720 our fingers, and he said, don't expect you to do that, 0:22:13.880 --> 0:22:16.320 just say that the election was corrupt and leave the 0:22:16.320 --> 0:22:21.919 rest to me and the Republican congressman. What does this indicate, Well, 0:22:22.400 --> 0:22:26.720 it indicates that he was directly asking the Justice Department 0:22:26.800 --> 0:22:30.960 to to come, you know, to come to back for him. Uh, 0:22:31.080 --> 0:22:34.320 in regard to overturning the election, had no basis for 0:22:34.680 --> 0:22:38.240 declaring that the election was was corrupt in some way 0:22:38.600 --> 0:22:43.080 requires you know, it requires evidence, and there was none. Uh. 0:22:43.320 --> 0:22:45.520 They had been saying that from the beginning. Even Bill 0:22:45.560 --> 0:22:48.720 Barr eventually said that. So that's why we're dealing with 0:22:49.160 --> 0:22:52.520 with Jeff Rosen instead of Bill Barr. By the middle 0:22:52.560 --> 0:22:57.080 of December, which is when leading apparently UH took place, 0:22:57.080 --> 0:22:59.280 when the notes were taken. I don't know why I 0:22:59.359 --> 0:23:02.600 wasn't surprised by this. It seemed to be along the 0:23:02.640 --> 0:23:05.920 lines of what he'd been doing with Georgia election officials, 0:23:06.080 --> 0:23:09.720 and you know, all along the way, were you surprised 0:23:09.720 --> 0:23:13.600 by this? No, I'm fraid I wasn't surprised. By the 0:23:13.680 --> 0:23:16.280 time that we got to the middle of December, I 0:23:16.359 --> 0:23:19.800 knew that I certainly suspected that he would do everything 0:23:20.400 --> 0:23:22.800 that he could think of to try to undo what 0:23:22.960 --> 0:23:26.680 had happened to him. You know, any other president would 0:23:26.720 --> 0:23:29.400