WEBVTT - Can Trump Send Military Troops Into States? 0:00:00.560 --> 0:00:05.320 This is Bloomberg Law with June Grassoe from Bloomberg Radio 0:00:05.720 --> 0:00:08.680 in the Rose Garden. On Monday, President Trump threatened to 0:00:08.680 --> 0:00:12.079 send military forces into cities and states that failed to 0:00:12.200 --> 0:00:15.680 quell violence spiraling from protests over the death of George 0:00:15.680 --> 0:00:20.079 Floyd while in police custody. Mayors and governors must establish 0:00:20.200 --> 0:00:24.640 an overwhelming law enforcement presence until the violence has been quelled. 0:00:25.640 --> 0:00:28.600 If a city or state refuses to take the actions 0:00:28.640 --> 0:00:32.199 that are necessary to defend the life and property of 0:00:32.280 --> 0:00:36.840 their residence, then I will deploy the United States military 0:00:36.960 --> 0:00:41.320 and quickly solve the problem for them. Trump would likely 0:00:41.440 --> 0:00:44.480 use the eighteen o seven Insurrection Act, but there would 0:00:44.520 --> 0:00:47.480 be serious questions about the legality of such an order. 0:00:47.800 --> 0:00:51.360 Trump's own Secretary of Defense, Mark Esper, broke with the 0:00:51.400 --> 0:00:55.120 President on Wednesday and said he opposed sending troops in 0:00:55.720 --> 0:00:57.840 the option to use active duty forces in a law 0:00:57.920 --> 0:01:00.720 enforcement role should only be used as a matter last resort, 0:01:01.320 --> 0:01:04.360 and only in the most urgent and dire of situations. 0:01:04.840 --> 0:01:08.240 We are not in one of those situations now. I 0:01:08.319 --> 0:01:11.480 do not support invoking the Insurrection Act. Joining me is 0:01:11.520 --> 0:01:14.600 Harold Grant, professor at the Chicago Kent College of Law, 0:01:15.160 --> 0:01:18.520 Can he do that? Can he use the military to 0:01:18.640 --> 0:01:21.560 go into states? Yes? And no. I mean from the 0:01:21.680 --> 0:01:24.720 time of our founding Congress is whether there may be 0:01:24.800 --> 0:01:27.760 some emergency in which the president would have to deploy 0:01:28.000 --> 0:01:32.200 federal troops to protect against some kind of insurrection or 0:01:32.240 --> 0:01:35.399 some kind of violence at the state level. There are 0:01:35.440 --> 0:01:39.720 a couple of different categories in which Congress has envisioned 0:01:40.120 --> 0:01:43.560 the President involving the troops in such protection or defense 0:01:43.840 --> 0:01:46.160 of the country. The first is when the governor asked 0:01:46.160 --> 0:01:48.960 for the president's help, and the governors have done that 0:01:49.200 --> 0:01:53.760 on the number of occasions, most notably recently after the 0:01:53.880 --> 0:01:57.320 riots after the beatings of Rodney King in Los Angeles, 0:01:59.320 --> 0:02:02.840 Man govern Wilson then said I need help, and President 0:02:02.880 --> 0:02:06.160 Bush sent in troops to help calm the streets of 0:02:06.240 --> 0:02:09.120 Los Angeles after the continued fighting. So that's the most 0:02:09.160 --> 0:02:13.840 recent occasion. There been other times in our country as 0:02:13.880 --> 0:02:17.600 well in that genre when governors themselves have lost control. 0:02:18.080 --> 0:02:22.519 The second context, which we've also seen is when there's 0:02:22.560 --> 0:02:26.880 a need to protect federal law that sometimes states will 0:02:26.960 --> 0:02:30.840 not protect federal law, and so they're the insurrection that 0:02:30.960 --> 0:02:33.600 gives the president the ability to send in troops. Most 0:02:33.639 --> 0:02:37.080 famously was used in our country in Arkansas to enforce 0:02:37.120 --> 0:02:40.280 the civil rights laws to make sure that desegregation was 0:02:40.440 --> 0:02:43.720 a reality because the states were refusing to enforce federal 0:02:43.800 --> 0:02:47.079 law and to allow integration to take place. So those 0:02:47.120 --> 0:02:51.480 are the two most common contexts. The third category, and 0:02:51.480 --> 0:02:54.640 that's the category that President Trump would need to fit 0:02:54.919 --> 0:02:58.120 this use of troops into, was when there is a 0:02:58.440 --> 0:03:02.360 sort of a failure of will process and when a 0:03:02.560 --> 0:03:07.640 state can no longer protect its citizens because there is 0:03:07.919 --> 0:03:12.119 so much violence going on and the normal administrative machinery 0:03:12.280 --> 0:03:16.640 is not available to protected citizens. That's never been used 0:03:17.400 --> 0:03:21.120 and it's unlikely to be used in this case because 0:03:21.120 --> 0:03:25.639 states themselves that said there is no failure of the process. 0:03:25.639 --> 0:03:27.680 There may be a riot, but a riot is not 0:03:27.760 --> 0:03:32.440 an insurrection. Courts are still open, police stations are still open. 0:03:32.919 --> 0:03:36.480 And so that would be the category that Trump would 0:03:36.520 --> 0:03:41.000 have to fit this introduction of federal troops into. And 0:03:41.280 --> 0:03:45.560 it's unprecedented, but it doesn't seem to fit the exception. 0:03:45.600 --> 0:03:47.000 And the way to look at it is is this 0:03:47.160 --> 0:03:50.280 really an insurrection that the states can no longer function 0:03:50.600 --> 0:03:52.760 or is this a riot? And if it's a riot, 0:03:52.960 --> 0:03:55.840 it doesn't seem to fit in within the structure of 0:03:56.360 --> 0:03:59.880 the statute allowing for the introduction of U. S. Troops. 0:04:00.520 --> 0:04:04.160 What about the part of that statute that allows military 0:04:04.240 --> 0:04:08.480 to put down domestic violence? Could this be considered domestic violence? 0:04:09.320 --> 0:04:12.960 That's not really in the Insurrection Act itself. With the 0:04:13.000 --> 0:04:16.760 eighteen or seven statute that President Trump invoked, there is 0:04:16.800 --> 0:04:21.480 another sort of idea of emergency used. There's an inherent, 0:04:21.920 --> 0:04:25.200 some kind of inherent authority of the president in an 0:04:25.240 --> 0:04:28.360 emergency to protect the country. Right, and this is most 0:04:28.400 --> 0:04:32.039 famously President Lincoln cited this when he was trying to 0:04:32.160 --> 0:04:35.320 use the forces of the North to prevent a successful 0:04:35.400 --> 0:04:38.080 rebellion in the South, and did not wait for any 0:04:38.160 --> 0:04:41.640 kind of congressional action, but just said, I have to 0:04:41.680 --> 0:04:45.400 have a reservoir emergency authility to protect the nation. Sure, 0:04:45.880 --> 0:04:49.080 President Trump can invoke his inherent authility. He didn't so far, 0:04:49.560 --> 0:04:51.600 but if he does, it just doesn't seem to rise 0:04:51.680 --> 0:04:54.479 to that kind of level of a catastrophe. Now most 0:04:54.480 --> 0:04:57.400 people think, if we have a terrorist attack, the president 0:04:57.480 --> 0:05:01.359 should invoke emergency powers and not worry about the niceties 0:05:01.400 --> 0:05:05.840 of making a proclamation under the Insurrection Act or anything 0:05:05.839 --> 0:05:07.920 of that sort. But just introduced troops that we need 0:05:07.960 --> 0:05:10.599 to to protect against terrorists, and some people think he 0:05:11.080 --> 0:05:14.400 talked about the Antifa as a terrorist group as an 0:05:14.400 --> 0:05:18.159 alternative way to pay the ground for introduction of U 0:05:18.240 --> 0:05:21.520 S troops on the theory that we were really facing 0:05:21.839 --> 0:05:25.880 a terrorist attack by the Antifa as opposed to domestic disturbances. 0:05:26.200 --> 0:05:31.240 Explain what Antifa is and what happened recently. So, Antifa 0:05:31.320 --> 0:05:37.240 is a loosely organ organized UH left wing anarchist group 0:05:37.480 --> 0:05:42.080 that believes in in violence and destabilizing the status quo 0:05:42.520 --> 0:05:47.640 UM and the President has declared that that group is 0:05:47.680 --> 0:05:51.640 a domestic terrorist organization bent on using violence to overthrow 0:05:52.080 --> 0:05:55.720 the US government UM. And there is not much evidence 0:05:56.240 --> 0:06:01.080 of the Antifa's involvement in the recent protests around the 0:06:01.080 --> 0:06:05.280 country about the George Floyd Floyd killing. I mean, there 0:06:05.320 --> 0:06:07.680 may be in some elements from Antifa that have mixed in, 0:06:07.760 --> 0:06:10.680 and not just Antifa, but there are other kinds of 0:06:11.279 --> 0:06:15.480 agitators who we have and looters as well, who use 0:06:15.600 --> 0:06:19.520 the means or used the context of a peaceful protest 0:06:20.120 --> 0:06:23.640 as a means to further their own ends. Will be 0:06:23.760 --> 0:06:28.960 that the stabilization or booting, But there's no evidence that 0:06:29.000 --> 0:06:33.159 I've seen so far that the Antifa was behind the 0:06:33.240 --> 0:06:37.120 peaceful protests, behind the violence any kind of great extent. 0:06:37.240 --> 0:06:41.080 But President Trump has labeled them as a terrorist organization, 0:06:41.080 --> 0:06:44.760 which maybe again one plank down the road of saying 0:06:44.760 --> 0:06:50.000 that he's introducing troops to protect against this terrorist threat. 0:06:50.160 --> 0:06:54.080 Now that's not directly again UH provided for in the 0:06:54.120 --> 0:06:57.680 Insurrection Act, but I think most people would believe that 0:06:57.720 --> 0:07:00.880 the president has the authority to introduce troops if we 0:07:00.960 --> 0:07:03.440 are in the case of invasion obviously, or the in 0:07:03.440 --> 0:07:10.040 case of an active um UH domestic terrorism challenge. Some 0:07:10.280 --> 0:07:14.760 legal experts believe that the broad language of the Insurrection 0:07:14.840 --> 0:07:18.480 Act means that Trump might have a case. Noah Feldman, 0:07:18.880 --> 0:07:22.560 who's a Bloomberg Opinion columnist Harvard law professor, says that 0:07:22.800 --> 0:07:26.440 the rioting and looting is obstructing execution of federal law 0:07:26.560 --> 0:07:29.280 to the extent that local police and the National Guard 0:07:29.320 --> 0:07:32.960 can successfully stop violence on the streets. So if it 0:07:33.000 --> 0:07:36.200 comes to that point, does Trump have a better case. 0:07:37.600 --> 0:07:40.120 Most of what we've see in the streets there has 0:07:40.200 --> 0:07:45.280 been a threat to state law issues, to property law, 0:07:45.560 --> 0:07:50.400 to traffic laws, and and so forth. Transportation, there has 0:07:50.480 --> 0:07:54.000 not been a direct threat to federal laws. The question 0:07:54.080 --> 0:07:57.280 is what is the federal interest. Certainly there's a right 0:07:57.360 --> 0:08:00.720 to protect federal buildings such as the courthouse for a 0:08:00.880 --> 0:08:06.000 federal bank, but the federal legal interests involved in the 0:08:06.040 --> 0:08:09.360 writings so far have been very marginal. So I think 0:08:09.360 --> 0:08:12.920 it would be a stretch to justify any kind of 0:08:12.960 --> 0:08:15.720 Trump intervention on the base of the need to protect 0:08:16.040 --> 0:08:20.280 federal law. The state cops are still their National Guard 0:08:20.320 --> 0:08:24.560 can be there, and so the machinery justice is still working, 0:08:24.960 --> 0:08:28.240 and there's very little at stake at risk from a 0:08:28.320 --> 0:08:33.280 federal law perspective. New York Attorney General Letitia James tweeted, 0:08:33.679 --> 0:08:36.280 we will guard the right to peaceful protests and will 0:08:36.320 --> 0:08:39.439 not hesitate to go to court to protect our constitutional 0:08:39.559 --> 0:08:42.800 rights during this time and well into the future. But 0:08:43.320 --> 0:08:46.280 by the time you get into court, isn't it too late? 0:08:46.800 --> 0:08:49.360 You know, if he decides to send troops in, how 0:08:49.400 --> 0:08:51.160 long will it take to get a court to rule 0:08:51.200 --> 0:08:56.760 on that. This is one of those difficult political constitutional 0:08:56.840 --> 0:09:00.640 questions that is not meant for speedy resolution in the courts. 0:09:01.120 --> 0:09:04.400 I mean, the court might try to say that there's 0:09:04.400 --> 0:09:07.240 an emergency motion and here it can decide within the day, 0:09:07.240 --> 0:09:10.040 but even within a day, the troops would already be 0:09:10.200 --> 0:09:13.200 on the ground and the whole sort of reality would 0:09:13.240 --> 0:09:16.200 be changed. Now. I do think that there might be 0:09:16.360 --> 0:09:21.040 litigation after the fact, because if someone was arrested or 0:09:21.080 --> 0:09:26.880 somebody was in fact um beat up that by a 0:09:26.920 --> 0:09:28.960 member of the U. S. Army, then they would be 0:09:28.960 --> 0:09:31.280 able to sue after the fact on the ground that 0:09:31.400 --> 0:09:33.920 the whole introduction of U. S. Troops was illegal and 0:09:33.960 --> 0:09:37.560 therefore their arrest or certain seizures should be thrown out. 0:09:38.000 --> 0:09:40.800 But in terms of immediately trying to get a court 0:09:40.920 --> 0:09:44.360 order to stop the introduction of U. S. Troops, I 0:09:44.360 --> 0:09:48.840 think that's a high hurdle to overcome that. I wouldn't 0:09:48.840 --> 0:09:52.280 expect a court to be able to effectively stop the 0:09:52.320 --> 0:09:55.480 introduction of federal troops until for several days afterwards, but 0:09:55.600 --> 0:09:59.559 which time it might be too late. On the under hand, 0:09:59.559 --> 0:10:01.600 a few except back and look at it if this 0:10:01.640 --> 0:10:04.680 is really a political issue. The governors, such as governors 0:10:04.679 --> 0:10:06.880 of Illinois, New York, and Minnesota, have stood up and 0:10:06.920 --> 0:10:09.320 said we don't want any federal troops here. And I 0:10:09.320 --> 0:10:12.600 think there's leaders in the federal UM military who have 0:10:12.720 --> 0:10:15.520 also said we don't think we should introduce troops in 0:10:15.520 --> 0:10:18.720 this way. So already there there is a political movement 0:10:18.760 --> 0:10:22.040 against the threat by President Trump, and I think that's 0:10:22.080 --> 0:10:26.680 probably going to be the most important um uh sort 0:10:26.679 --> 0:10:29.520 of weight against the president as opposed to any potential 0:10:29.559 --> 0:10:34.440 court challenge. This seems to be a unique situation in 0:10:34.480 --> 0:10:37.520 our country. Can you remember another time when there were 0:10:37.840 --> 0:10:41.640 protests like this across the country? You know, where a 0:10:41.640 --> 0:10:46.080 president would be even be thinking about military action. Well, 0:10:46.120 --> 0:10:49.120 most recently they've been situations because of a natural disaster, 0:10:49.160 --> 0:10:52.720 whether it was in the aftermath of Hurricane Katrina or 0:10:52.840 --> 0:10:57.720 Hurricane in the Virgin Islands. Those uh disasters left sort 0:10:57.720 --> 0:11:00.400 of devastation and in the awaken whether it was wasn't 0:11:00.400 --> 0:11:02.240 that far from what happened to Puerto Rico just a 0:11:02.280 --> 0:11:04.840 couple of years ago, And there there has been a 0:11:04.880 --> 0:11:09.920 need to have have quick action by federal authorities to 0:11:10.000 --> 0:11:13.440 try to restore order. But we haven't seen it in 0:11:13.440 --> 0:11:16.760 a kind of political context. And and remember that most 0:11:16.800 --> 0:11:21.240 almost everybody would agree. I think so far that six 0:11:21.360 --> 0:11:24.440 percent of all of the protests has been peaceful, they've 0:11:24.480 --> 0:11:27.840 been constructive. And so to send the military in because 0:11:28.120 --> 0:11:30.400 of even what some people might say is a few 0:11:30.400 --> 0:11:35.120 bad apples or these provocateurs seeming to be an overreach, 0:11:35.400 --> 0:11:38.760 and there's been no evidence that the states on their 0:11:38.800 --> 0:11:41.239 own can't take care of it. Maybe not as efficiently 0:11:41.360 --> 0:11:44.600 as we've all would like, but it looks like that 0:11:44.840 --> 0:11:48.200 issues are subsiding, the violence is subsiding, and that the 0:11:48.240 --> 0:11:51.840 protests that are continuing are again are well within the 0:11:51.880 --> 0:11:56.040 First Amendment rights and in fact very productive for the country. 0:11:56.200 --> 0:12:00.520 I also want to talk a little bit about that incident, uh, 0:12:00.600 --> 0:12:04.880 the clearing of the peaceful protesters from around the White House. 0:12:05.200 --> 0:12:10.240 You had General Mark Milly wearing combat fatigues on the 0:12:10.240 --> 0:12:15.320 streets of the Capitol and military units were used against 0:12:15.880 --> 0:12:21.320 the protesters. Is that allowed on the streets of our country? 0:12:21.880 --> 0:12:24.439 So really, the presidents in a better position because it's 0:12:24.480 --> 0:12:27.240 d C. D C is not a state. D C 0:12:28.200 --> 0:12:32.359 does have militia, but it's also connected with a more 0:12:32.400 --> 0:12:36.679 closely controlled to the federal government and to UH the U. S. 0:12:36.800 --> 0:12:39.839 National Garden. Because of that, to the U. S. Army 0:12:40.280 --> 0:12:44.040 as well, So in that sense, the president does have 0:12:44.160 --> 0:12:50.360 more control to order the military to protect him or 0:12:50.760 --> 0:12:53.600 people or property in d C than they would in 0:12:53.640 --> 0:12:57.319 New York, Illinois, Minnesota, or elsewhere. But but the question 0:12:57.360 --> 0:12:59.959 is why, I mean, why would you have to send 0:13:00.960 --> 0:13:05.439 those kind of messages to people who are peacefully protesting. Um, 0:13:05.440 --> 0:13:08.480 what happened in Minnesota, it's sort of defies any kind 0:13:08.760 --> 0:13:12.040 of imagination. So it's in my mind a wholly excessive 0:13:12.040 --> 0:13:14.920 short of force. But again, he there's more legal backing 0:13:14.960 --> 0:13:19.000 to what he did in DC than there would be 0:13:19.120 --> 0:13:23.800 in a state. More National Guard troops have been deployed 0:13:24.480 --> 0:13:27.520 inside the US at this time than at any previous 0:13:27.600 --> 0:13:31.400 time in our history. The White House has asked some 0:13:31.559 --> 0:13:36.080 governors to send National Guard troops to d C, and 0:13:36.200 --> 0:13:40.440 governors in Virginia, New York, Pennsylvania, and Delaware have declined 0:13:40.480 --> 0:13:43.960 to do so. Who has the power over those troops 0:13:44.200 --> 0:13:46.320 is that the governors. That the governors have the power 0:13:46.360 --> 0:13:49.200 to say no, we're not going to send you any troops. 0:13:49.280 --> 0:13:51.520 Right the first level, the governors do have the authority 0:13:51.559 --> 0:13:55.760 to decide how their own National Guards troops should be deployed. 0:13:55.960 --> 0:14:00.200 But the very name national Guards suggest that people in 0:14:00.240 --> 0:14:02.840 the National Guard where two had their first loyalty is 0:14:02.880 --> 0:14:06.760 to the states. But if the federal government goes to 0:14:06.880 --> 0:14:11.760 the right procedures to federalize the National Guard, then the 0:14:11.760 --> 0:14:14.720 fellow federal military would be at the head of the 0:14:14.800 --> 0:14:17.240 National Guard House. The government has not done this yet. 0:14:17.559 --> 0:14:19.680 I hope it doesn't. It doesn't see the need to 0:14:19.680 --> 0:14:22.840 do that. But this again is a unique sort of 0:14:22.840 --> 0:14:27.040 window into the dual nature and dual loyalties of the 0:14:27.160 --> 0:14:29.680 national guards in our country. First of a state, whether 0:14:29.680 --> 0:14:32.520 it's Virginia or Illinois, um, and then of course to 0:14:32.800 --> 0:14:37.160 the national government itself. I believe it was President Eisenhower 0:14:37.320 --> 0:14:40.880 who took over the state's National Guard in nineteen fifty 0:14:41.000 --> 0:14:45.400 seven from the governor without the governor's consent. Yeah, and 0:14:45.640 --> 0:14:48.000 President Trump might take that to deep and we think 0:14:48.040 --> 0:14:51.400 that that's probably within his bigal authority to do so. Um, 0:14:51.480 --> 0:14:55.120 that does come with more responsibilities and obligations, and he 0:14:55.240 --> 0:14:58.880 is not shown willingness to take that step. And I 0:14:58.880 --> 0:15:00.280 don't think he needs to, And I think I don't 0:15:00.280 --> 0:15:03.920 think he needs to because, um, he's sitting with the U. S. 0:15:04.040 --> 0:15:07.160 Army at his back, and if he wants to take 0:15:07.160 --> 0:15:11.400 a dramatic move, he'll probably do so through the introduction 0:15:11.720 --> 0:15:14.200 of the armed forces, as he's threatened to do already, 0:15:14.440 --> 0:15:18.280 as opposed to taking a step of nationalizing the state's 0:15:18.360 --> 0:15:20.640 national Guards, but who knows. We'll have to stay tuned 0:15:20.640 --> 0:15:25.240 to watch unfolding developments. So then, just to clarify, it's 0:15:25.240 --> 0:15:30.000 a different legal issue his taking over National Guard in 0:15:30.040 --> 0:15:33.960 a state as opposed to sending the military in. The 0:15:34.000 --> 0:15:36.040 answer is yes, But the answer is also that I 0:15:36.120 --> 0:15:38.520 don't know the procedures that have to follow to do that. 0:15:38.800 --> 0:15:42.240 Are there any procedures he has to follow? He decided 0:15:42.360 --> 0:15:46.200 to invoke the Insurrection Act, there is one procedure that 0:15:46.240 --> 0:15:49.400 he must follow, and he must make a proclamation that 0:15:49.600 --> 0:15:53.440 he will be introducing troops and why he will be 0:15:53.520 --> 0:15:57.920 introducing troops. Um, that's the only with procedural obstacle for 0:15:58.160 --> 0:16:02.200 invoking the Insurrection Act. So it's a relatively minimal procedural 0:16:02.280 --> 0:16:06.840 hurdle that he must satisfied. Thanks Hal. That's Harold Crent, 0:16:07.040 --> 0:16:11.880 professor at the Chicago Kent College of Law. Next Friday, 0:16:11.920 --> 0:16:14.400 the d C. Circuit Court of Appeals will hear oral 0:16:14.520 --> 0:16:18.280 arguments to determine whether Judge Emmett Sullivan has the power 0:16:18.360 --> 0:16:21.800 to review the Justice Department's plan to drop its charges 0:16:21.840 --> 0:16:25.560 against former National Security advisor Michael Flynn after his two 0:16:25.640 --> 0:16:28.560 guilty Please joining me is Brad moss, a partner at 0:16:28.600 --> 0:16:32.640 Mark said, Brad, can you remember the last time an 0:16:32.640 --> 0:16:38.560 appellate court asked a federal judge to explain his actions? No, 0:16:38.720 --> 0:16:41.120 I mean this. I'm sure there are instances in the 0:16:41.120 --> 0:16:43.960 past in which that has occurred, probably not the first 0:16:44.000 --> 0:16:47.520 time it's ever happened. But this is altogether a rather 0:16:47.640 --> 0:16:53.520 unusual and somewhat unprecedented situation, because this is where a 0:16:53.560 --> 0:16:56.520 situation where the defendant has already pleaded guilty and more 0:16:56.560 --> 0:16:59.720 than one hearing and in writing the guilty plea was 0:16:59.720 --> 0:17:03.360 already accepted, they were ready for sentencing. The Justice Department 0:17:03.360 --> 0:17:08.600 had defended itself multiple times against allegations of misconduct, against 0:17:08.640 --> 0:17:11.680 allegations that the that the false statements were not material, 0:17:11.800 --> 0:17:13.600 and then all of a sudden, at the last minute, 0:17:13.840 --> 0:17:19.000 but there meant changes its mind without rescinding its previous 0:17:19.119 --> 0:17:22.920 sworn assertions defending its position, and said we're going to 0:17:23.000 --> 0:17:26.679 dismiss the charges. We've reconsidered our legal analysis, and so 0:17:26.880 --> 0:17:30.600 put Judge Sullivan in a rather difficult situation, which is 0:17:30.600 --> 0:17:32.960 why we are in the current predicament in which we 0:17:33.000 --> 0:17:35.680 find ourselves that now has the DC Circuit hearing this 0:17:36.160 --> 0:17:40.800 next week. Judge Sullivan responded through his attorney, what was 0:17:40.840 --> 0:17:44.879 his response to why he stepped in here? So the 0:17:44.880 --> 0:17:48.960 the ultimate point that Judge Sullivan's attorney was arguing in 0:17:49.160 --> 0:17:51.960 outlining is that this is a way too early and 0:17:52.000 --> 0:17:55.040 premature for the circuit or for any kind of you know, 0:17:55.080 --> 0:17:57.760 release to be provided, because Judge Sullivan hasn't actually done 0:17:57.880 --> 0:18:02.320 anything yet. So under criminal Procedure forty eight, which is 0:18:02.320 --> 0:18:05.040 the one the government moved to dismiss the charges, it 0:18:05.160 --> 0:18:09.119 requires leading the court requires the court's permission at this 0:18:09.200 --> 0:18:13.119 point to have the charges dismissed. And what job Salvan 0:18:13.200 --> 0:18:15.920 is saying is, I'm not a rubber stamp. I get 0:18:16.000 --> 0:18:19.800 the I have the discretion to inquire before I grant leave. 0:18:20.720 --> 0:18:24.840 I have an unusual situation. It's virtually unheard of for 0:18:24.960 --> 0:18:28.800 the government to withdraw the charges in this context, after 0:18:28.840 --> 0:18:31.960 the defendant has already pled guilty multiple times in my 0:18:32.119 --> 0:18:35.359 courtroom and to me, and after the government has fought 0:18:35.400 --> 0:18:39.320 back allegations of Brady violations and things along those lines 0:18:39.359 --> 0:18:44.000 and passed motions, and to now suddenly, with this politicized environment, 0:18:44.359 --> 0:18:47.240 to move to withdraw the charges. And the Judge Sullivan's 0:18:47.240 --> 0:18:50.440 comment was, I have the authority in that circumstance to 0:18:50.560 --> 0:18:53.080 a point, an A meek us to appoint someone like 0:18:53.160 --> 0:18:57.320 Judge Gleeson to argue against the dismissal, if only to 0:18:57.440 --> 0:19:00.240 ensure the adversarial process before I make a choice. My 0:19:00.359 --> 0:19:03.840 choice might still be to grant leave and dismiss the charges, 0:19:04.320 --> 0:19:08.280 but I have that discretion to review that situation first, 0:19:09.000 --> 0:19:11.679 and that the Circuit shouldn't be intervening. It should be 0:19:11.680 --> 0:19:15.600 allowing him to conduct that discretionary In Corey, he said 0:19:15.600 --> 0:19:20.359 that the Department of Justice repeatedly affirmed for years that 0:19:20.800 --> 0:19:23.879 the evidence that Flynn lied to the FBI was iron 0:19:24.000 --> 0:19:29.440 clad and crucial to the FBI Russia investigation. How does 0:19:29.480 --> 0:19:34.640 that compare with what the Department of Justice has said? Yes, 0:19:34.800 --> 0:19:39.879 so now the just departments changed view on this, never 0:19:39.920 --> 0:19:44.000 rescinded any of their past defenses. All they have essentially 0:19:44.040 --> 0:19:47.240 said here is that even if he did lie, we 0:19:47.359 --> 0:19:50.919 have now concluded that it was not a false statement 0:19:51.400 --> 0:19:55.760 material to an ongoing investigation because the investigation shouldn't have 0:19:55.840 --> 0:19:59.680 been ongoing in the first place, which is some very fancy, 0:20:00.040 --> 0:20:04.000 you know Monday morning quarterbacking by the just former and 0:20:04.080 --> 0:20:07.320 lawyer who signed that brief, saying they shouldn't have been 0:20:07.320 --> 0:20:10.800 talking to Flynn anyway. That didn't rescind any of the 0:20:10.840 --> 0:20:13.679 past affidavits they submitted. It didn't rescind any of the 0:20:13.720 --> 0:20:17.880 past motions and oppositions they had filed in. What particularly 0:20:17.920 --> 0:20:20.840 concerned Judge Sullivan was he didn't have any of the 0:20:20.880 --> 0:20:24.200 original prosecutors on the brief. It was a brand new, 0:20:24.680 --> 0:20:28.159 temporarily appointed individual put in there by the Attorney General 0:20:28.640 --> 0:20:31.800 who signed that brief alone, and then he left as well, 0:20:31.840 --> 0:20:34.160 And so that was why Judge Salvian wanted to inquire 0:20:34.240 --> 0:20:37.040 further to see what exactly was going on there. Does 0:20:37.080 --> 0:20:41.760 anyone take into an account that Flynn pleaded to these 0:20:41.800 --> 0:20:45.600 particular charges but there were other charges that were being 0:20:45.640 --> 0:20:49.159 considered against him, Yeah, that has been mentioned. I mean, 0:20:49.160 --> 0:20:53.240 there's certainly there was a Foreign Agent Registration Act issue 0:20:53.320 --> 0:20:55.359 that came up in the plea deal that was mentioned 0:20:55.359 --> 0:20:58.880 in the statement offense that Michael Flynn had been doing 0:20:58.920 --> 0:21:02.040 work in support of Turkey and he had never registered 0:21:03.040 --> 0:21:05.080 with the Justice Department as a foreign registered agent, and 0:21:05.119 --> 0:21:08.200 that he had lied about the detail that was part 0:21:08.240 --> 0:21:09.760 of it came up in the statement offense. And there 0:21:09.840 --> 0:21:13.120 was always this issue of for there other charges that 0:21:13.240 --> 0:21:17.000 Mueller's team had been considering against Flynn prior to him 0:21:17.000 --> 0:21:19.199 pleading guilty. There was a question about whether or not 0:21:19.320 --> 0:21:22.600 he had properly outlined his work in support of Turkey 0:21:22.760 --> 0:21:26.080 and his interactions with various foreign government officials on his 0:21:26.200 --> 0:21:30.240 security clearance paperwork, and failure to properly document that is 0:21:30.280 --> 0:21:33.840 a felony can be a felony under again a team USC. 0:21:34.000 --> 0:21:37.080 One thousand one. So there were certainly other issues that 0:21:37.080 --> 0:21:39.720 could have been raised if Mueller had wanted to throw 0:21:39.760 --> 0:21:42.080 the entire kitchen sink at him, but they didn't. They 0:21:42.119 --> 0:21:45.080 struck a plea deal to get his cooperation, and those 0:21:45.080 --> 0:21:47.720 were things that I'm sure to some extent Judge Sullivan 0:21:47.800 --> 0:21:51.040 would want to enquire into as part of his assessment 0:21:51.080 --> 0:21:53.760 of the rule forty eight motions. Flynn's lawyers filed this 0:21:53.920 --> 0:21:57.680 rid of mandamus. Did the Circuit Court have to call 0:21:57.760 --> 0:22:00.480 a hearing and ask for briefs and everything? Could they 0:22:00.520 --> 0:22:03.840 have just rejected that out of hand? They could have 0:22:03.880 --> 0:22:05.639 rejected it out of hand, but I don't think anybody 0:22:05.760 --> 0:22:10.320 was expecting them to do so, given the sensitivity of 0:22:10.359 --> 0:22:15.720 the topic and given the constitutional concerns. I mean, there's 0:22:15.760 --> 0:22:17.960 certainly an issue about Brady violations and here that have 0:22:17.960 --> 0:22:20.320 been alleged there. It would have made no sense for 0:22:20.359 --> 0:22:23.200 the Circuit to have just summarily denied the motion. It 0:22:23.359 --> 0:22:26.240 was certainly proper for them at that point to get briefs, 0:22:26.240 --> 0:22:28.919 to let Judge Slivan submit a brief. Let's just department 0:22:28.960 --> 0:22:32.040 submit a brief, to let AMICI submit brief, and to 0:22:32.240 --> 0:22:34.399 call a hearing and to hear this out and to 0:22:34.520 --> 0:22:37.879 let this be truly argued before this panel. How it 0:22:37.920 --> 0:22:40.239 will play out, I think is anybody's guys. I think 0:22:40.240 --> 0:22:42.159 a lot of people are trying to get ahead of 0:22:42.160 --> 0:22:44.520 themselves on whether or not politics will play a player 0:22:44.600 --> 0:22:47.680 Roland who decides how to vote on this vere person 0:22:47.760 --> 0:22:50.159 panel with respect to whether grant that the right of 0:22:50.200 --> 0:22:52.560 mand Dame is. I do not believe they will ultimately grant. 0:22:53.160 --> 0:22:56.200 This is a more conservative panel than you might expect 0:22:56.200 --> 0:22:59.560 to find at the DC Circuit Court of Appeals, considering 0:22:59.760 --> 0:23:04.959 it's it's makeup, and with one president Trump appointd so 0:23:05.640 --> 0:23:09.840 might that play into how the judges view this? And 0:23:09.840 --> 0:23:11.240 and that's kind of going towards what I was just 0:23:11.280 --> 0:23:13.480 saying before. I think a lot of people are assuming 0:23:13.480 --> 0:23:15.280 that you know, because of the more conservative vent if 0:23:15.320 --> 0:23:18.400 some of these judges are more closely alliance to the president, 0:23:18.680 --> 0:23:21.240 that they will automatically just vote, you know, and lock 0:23:21.320 --> 0:23:24.439 step with the president. While that's certainly a potential, you 0:23:24.480 --> 0:23:28.680 know reality, I think some people are underestimating the extent 0:23:28.720 --> 0:23:30.920 to which you know, one or two these judges might 0:23:31.240 --> 0:23:34.840 be a little off put by the idea of the 0:23:34.880 --> 0:23:37.800 circuit granting this kind of relief because of the door 0:23:37.840 --> 0:23:41.240 it could open in the future. I think it would 0:23:41.280 --> 0:23:43.879 go against some of the conservative principles for them to 0:23:44.640 --> 0:23:48.439 allow for the just department and of criminal defendant who 0:23:48.480 --> 0:23:51.560 had already played guilty to you know, essentially joined forces 0:23:51.720 --> 0:23:54.040 against the judge. So I think lis a degree there 0:23:54.040 --> 0:23:55.560 to which each others are going to play it a 0:23:55.600 --> 0:23:57.920 little put close to their vest of just how much 0:23:57.960 --> 0:24:00.680 they're gonna let politics, you know, how some of their 0:24:00.800 --> 0:24:03.960 overriding conservative you know, legal principles might play a role 0:24:03.960 --> 0:24:06.080 in how they tried to weasel their way out of 0:24:06.080 --> 0:24:08.199 this and basically say no, this has got to go 0:24:08.240 --> 0:24:10.600