Speaker 1: This is Bloomberg Law with June Grassoe from Bloomberg Radio
Speaker 1: in the Rose Garden. On Monday, President Trump threatened to
Speaker 1: send military forces into cities and states that failed to
Speaker 1: quell violence spiraling from protests over the death of George
Speaker 1: Floyd while in police custody. Mayors and governors must establish
Speaker 1: an overwhelming law enforcement presence until the violence has been quelled.
Speaker 1: If a city or state refuses to take the actions
Speaker 1: that are necessary to defend the life and property of
Speaker 1: their residence, then I will deploy the United States military
Speaker 1: and quickly solve the problem for them. Trump would likely
Speaker 1: use the eighteen o seven Insurrection Act, but there would
Speaker 1: be serious questions about the legality of such an order.
Speaker 1: Trump's own Secretary of Defense, Mark Esper, broke with the
Speaker 1: President on Wednesday and said he opposed sending troops in
Speaker 1: the option to use active duty forces in a law
Speaker 1: enforcement role should only be used as a matter last resort,
Speaker 1: and only in the most urgent and dire of situations.
Speaker 1: We are not in one of those situations now. I
Speaker 1: do not support invoking the Insurrection Act. Joining me is
Speaker 1: Harold Grant, professor at the Chicago Kent College of Law,
Speaker 1: Can he do that? Can he use the military to
Speaker 1: go into states? Yes? And no. I mean from the
Speaker 1: time of our founding Congress is whether there may be
Speaker 1: some emergency in which the president would have to deploy
Speaker 1: federal troops to protect against some kind of insurrection or
Speaker 1: some kind of violence at the state level. There are
Speaker 1: a couple of different categories in which Congress has envisioned
Speaker 1: the President involving the troops in such protection or defense
Speaker 1: of the country. The first is when the governor asked
Speaker 1: for the president's help, and the governors have done that
Speaker 1: on the number of occasions, most notably recently after the
Speaker 1: riots after the beatings of Rodney King in Los Angeles,
Speaker 1: Man govern Wilson then said I need help, and President
Speaker 1: Bush sent in troops to help calm the streets of
Speaker 1: Los Angeles after the continued fighting. So that's the most
Speaker 1: recent occasion. There been other times in our country as
Speaker 1: well in that genre when governors themselves have lost control.
Speaker 1: The second context, which we've also seen is when there's
Speaker 1: a need to protect federal law that sometimes states will
Speaker 1: not protect federal law, and so they're the insurrection that
Speaker 1: gives the president the ability to send in troops. Most
Speaker 1: famously was used in our country in Arkansas to enforce
Speaker 1: the civil rights laws to make sure that desegregation was
Speaker 1: a reality because the states were refusing to enforce federal
Speaker 1: law and to allow integration to take place. So those
Speaker 1: are the two most common contexts. The third category, and
Speaker 1: that's the category that President Trump would need to fit
Speaker 1: this use of troops into, was when there is a
Speaker 1: sort of a failure of will process and when a
Speaker 1: state can no longer protect its citizens because there is
Speaker 1: so much violence going on and the normal administrative machinery
Speaker 1: is not available to protected citizens. That's never been used
Speaker 1: and it's unlikely to be used in this case because
Speaker 1: states themselves that said there is no failure of the process.
Speaker 1: There may be a riot, but a riot is not
Speaker 1: an insurrection. Courts are still open, police stations are still open.
Speaker 1: And so that would be the category that Trump would
Speaker 1: have to fit this introduction of federal troops into. And
Speaker 1: it's unprecedented, but it doesn't seem to fit the exception.
Speaker 1: And the way to look at it is is this
Speaker 1: really an insurrection that the states can no longer function
Speaker 1: or is this a riot? And if it's a riot,
Speaker 1: it doesn't seem to fit in within the structure of
Speaker 1: the statute allowing for the introduction of U. S. Troops.
Speaker 1: What about the part of that statute that allows military
Speaker 1: to put down domestic violence? Could this be considered domestic violence?
Speaker 1: That's not really in the Insurrection Act itself. With the
Speaker 1: eighteen or seven statute that President Trump invoked, there is
Speaker 1: another sort of idea of emergency used. There's an inherent,
Speaker 1: some kind of inherent authority of the president in an
Speaker 1: emergency to protect the country. Right, and this is most
Speaker 1: famously President Lincoln cited this when he was trying to
Speaker 1: use the forces of the North to prevent a successful
Speaker 1: rebellion in the South, and did not wait for any
Speaker 1: kind of congressional action, but just said, I have to
Speaker 1: have a reservoir emergency authility to protect the nation. Sure,
Speaker 1: President Trump can invoke his inherent authility. He didn't so far,
Speaker 1: but if he does, it just doesn't seem to rise
Speaker 1: to that kind of level of a catastrophe. Now most
Speaker 1: people think, if we have a terrorist attack, the president
Speaker 1: should invoke emergency powers and not worry about the niceties
Speaker 1: of making a proclamation under the Insurrection Act or anything
Speaker 1: of that sort. But just introduced troops that we need
Speaker 1: to to protect against terrorists, and some people think he
Speaker 1: talked about the Antifa as a terrorist group as an
Speaker 1: alternative way to pay the ground for introduction of U
Speaker 1: S troops on the theory that we were really facing
Speaker 1: a terrorist attack by the Antifa as opposed to domestic disturbances.
Speaker 1: Explain what Antifa is and what happened recently. So, Antifa
Speaker 1: is a loosely organ organized UH left wing anarchist group
Speaker 1: that believes in in violence and destabilizing the status quo
Speaker 1: UM and the President has declared that that group is
Speaker 1: a domestic terrorist organization bent on using violence to overthrow
Speaker 1: the US government UM. And there is not much evidence
Speaker 1: of the Antifa's involvement in the recent protests around the
Speaker 1: country about the George Floyd Floyd killing. I mean, there
Speaker 1: may be in some elements from Antifa that have mixed in,
Speaker 1: and not just Antifa, but there are other kinds of
Speaker 1: agitators who we have and looters as well, who use
Speaker 1: the means or used the context of a peaceful protest
Speaker 1: as a means to further their own ends. Will be
Speaker 1: that the stabilization or booting, But there's no evidence that
Speaker 1: I've seen so far that the Antifa was behind the
Speaker 1: peaceful protests, behind the violence any kind of great extent.
Speaker 1: But President Trump has labeled them as a terrorist organization,
Speaker 1: which maybe again one plank down the road of saying
Speaker 1: that he's introducing troops to protect against this terrorist threat.
Speaker 1: Now that's not directly again UH provided for in the
Speaker 1: Insurrection Act, but I think most people would believe that
Speaker 1: the president has the authority to introduce troops if we
Speaker 1: are in the case of invasion obviously, or the in
Speaker 1: case of an active um UH domestic terrorism challenge. Some
Speaker 1: legal experts believe that the broad language of the Insurrection
Speaker 1: Act means that Trump might have a case. Noah Feldman,
Speaker 1: who's a Bloomberg Opinion columnist Harvard law professor, says that
Speaker 1: the rioting and looting is obstructing execution of federal law
Speaker 1: to the extent that local police and the National Guard
Speaker 1: can successfully stop violence on the streets. So if it
Speaker 1: comes to that point, does Trump have a better case.
Speaker 1: Most of what we've see in the streets there has
Speaker 1: been a threat to state law issues, to property law,
Speaker 1: to traffic laws, and and so forth. Transportation, there has
Speaker 1: not been a direct threat to federal laws. The question
Speaker 1: is what is the federal interest. Certainly there's a right
Speaker 1: to protect federal buildings such as the courthouse for a
Speaker 1: federal bank, but the federal legal interests involved in the
Speaker 1: writings so far have been very marginal. So I think
Speaker 1: it would be a stretch to justify any kind of
Speaker 1: Trump intervention on the base of the need to protect
Speaker 1: federal law. The state cops are still their National Guard
Speaker 1: can be there, and so the machinery justice is still working,
Speaker 1: and there's very little at stake at risk from a
Speaker 1: federal law perspective. New York Attorney General Letitia James tweeted,
Speaker 1: we will guard the right to peaceful protests and will
Speaker 1: not hesitate to go to court to protect our constitutional
Speaker 1: rights during this time and well into the future. But
Speaker 1: by the time you get into court, isn't it too late?
Speaker 1: You know, if he decides to send troops in, how
Speaker 1: long will it take to get a court to rule
Speaker 1: on that. This is one of those difficult political constitutional
Speaker 1: questions that is not meant for speedy resolution in the courts.
Speaker 1: I mean, the court might try to say that there's
Speaker 1: an emergency motion and here it can decide within the day,
Speaker 1: but even within a day, the troops would already be
Speaker 1: on the ground and the whole sort of reality would
Speaker 1: be changed. Now. I do think that there might be
Speaker 1: litigation after the fact, because if someone was arrested or
Speaker 1: somebody was in fact um beat up that by a
Speaker 1: member of the U. S. Army, then they would be
Speaker 1: able to sue after the fact on the ground that
Speaker 1: the whole introduction of U. S. Troops was illegal and
Speaker 1: therefore their arrest or certain seizures should be thrown out.
Speaker 1: But in terms of immediately trying to get a court
Speaker 1: order to stop the introduction of U. S. Troops, I
Speaker 1: think that's a high hurdle to overcome that. I wouldn't
Speaker 1: expect a court to be able to effectively stop the
Speaker 1: introduction of federal troops until for several days afterwards, but
Speaker 1: which time it might be too late. On the under hand,
Speaker 1: a few except back and look at it if this
Speaker 1: is really a political issue. The governors, such as governors
Speaker 1: of Illinois, New York, and Minnesota, have stood up and
Speaker 1: said we don't want any federal troops here. And I
Speaker 1: think there's leaders in the federal UM military who have
Speaker 1: also said we don't think we should introduce troops in
Speaker 1: this way. So already there there is a political movement
Speaker 1: against the threat by President Trump, and I think that's
Speaker 1: probably going to be the most important um uh sort
Speaker 1: of weight against the president as opposed to any potential
Speaker 1: court challenge. This seems to be a unique situation in
Speaker 1: our country. Can you remember another time when there were
Speaker 1: protests like this across the country? You know, where a
Speaker 1: president would be even be thinking about military action. Well,
Speaker 1: most recently they've been situations because of a natural disaster,
Speaker 1: whether it was in the aftermath of Hurricane Katrina or
Speaker 1: Hurricane in the Virgin Islands. Those uh disasters left sort
Speaker 1: of devastation and in the awaken whether it was wasn't
Speaker 1: that far from what happened to Puerto Rico just a
Speaker 1: couple of years ago, And there there has been a
Speaker 1: need to have have quick action by federal authorities to
Speaker 1: try to restore order. But we haven't seen it in
Speaker 1: a kind of political context. And and remember that most
Speaker 1: almost everybody would agree. I think so far that six
Speaker 1: percent of all of the protests has been peaceful, they've
Speaker 1: been constructive. And so to send the military in because
Speaker 1: of even what some people might say is a few
Speaker 1: bad apples or these provocateurs seeming to be an overreach,
Speaker 1: and there's been no evidence that the states on their
Speaker 1: own can't take care of it. Maybe not as efficiently
Speaker 1: as we've all would like, but it looks like that
Speaker 1: issues are subsiding, the violence is subsiding, and that the
Speaker 1: protests that are continuing are again are well within the
Speaker 1: First Amendment rights and in fact very productive for the country.
Speaker 1: I also want to talk a little bit about that incident, uh,
Speaker 1: the clearing of the peaceful protesters from around the White House.
Speaker 1: You had General Mark Milly wearing combat fatigues on the
Speaker 1: streets of the Capitol and military units were used against
Speaker 1: the protesters. Is that allowed on the streets of our country?
Speaker 1: So really, the presidents in a better position because it's
Speaker 1: d C. D C is not a state. D C
Speaker 1: does have militia, but it's also connected with a more
Speaker 1: closely controlled to the federal government and to UH the U. S.
Speaker 1: National Garden. Because of that, to the U. S. Army
Speaker 1: as well, So in that sense, the president does have
Speaker 1: more control to order the military to protect him or
Speaker 1: people or property in d C than they would in
Speaker 1: New York, Illinois, Minnesota, or elsewhere. But but the question
Speaker 1: is why, I mean, why would you have to send
Speaker 1: those kind of messages to people who are peacefully protesting. Um,
Speaker 1: what happened in Minnesota, it's sort of defies any kind
Speaker 1: of imagination. So it's in my mind a wholly excessive
Speaker 1: short of force. But again, he there's more legal backing
Speaker 1: to what he did in DC than there would be
Speaker 1: in a state. More National Guard troops have been deployed
Speaker 1: inside the US at this time than at any previous
Speaker 1: time in our history. The White House has asked some
Speaker 1: governors to send National Guard troops to d C, and
Speaker 1: governors in Virginia, New York, Pennsylvania, and Delaware have declined
Speaker 1: to do so. Who has the power over those troops
Speaker 1: is that the governors. That the governors have the power
Speaker 1: to say no, we're not going to send you any troops.
Speaker 1: Right the first level, the governors do have the authority
Speaker 1: to decide how their own National Guards troops should be deployed.
Speaker 1: But the very name national Guards suggest that people in
Speaker 1: the National Guard where two had their first loyalty is
Speaker 1: to the states. But if the federal government goes to
Speaker 1: the right procedures to federalize the National Guard, then the
Speaker 1: fellow federal military would be at the head of the
Speaker 1: National Guard House. The government has not done this yet.
Speaker 1: I hope it doesn't. It doesn't see the need to
Speaker 1: do that. But this again is a unique sort of
Speaker 1: window into the dual nature and dual loyalties of the
Speaker 1: national guards in our country. First of a state, whether
Speaker 1: it's Virginia or Illinois, um, and then of course to
Speaker 1: the national government itself. I believe it was President Eisenhower
Speaker 1: who took over the state's National Guard in nineteen fifty
Speaker 1: seven from the governor without the governor's consent. Yeah, and
Speaker 1: President Trump might take that to deep and we think
Speaker 1: that that's probably within his bigal authority to do so. Um,
Speaker 1: that does come with more responsibilities and obligations, and he
Speaker 1: is not shown willingness to take that step. And I
Speaker 1: don't think he needs to, And I think I don't
Speaker 1: think he needs to because, um, he's sitting with the U. S.
Speaker 1: Army at his back, and if he wants to take
Speaker 1: a dramatic move, he'll probably do so through the introduction
Speaker 1: of the armed forces, as he's threatened to do already,
Speaker 1: as opposed to taking a step of nationalizing the state's
Speaker 1: national Guards, but who knows. We'll have to stay tuned
Speaker 1: to watch unfolding developments. So then, just to clarify, it's
Speaker 1: a different legal issue his taking over National Guard in
Speaker 1: a state as opposed to sending the military in. The
Speaker 1: answer is yes, But the answer is also that I
Speaker 1: don't know the procedures that have to follow to do that.
Speaker 1: Are there any procedures he has to follow? He decided
Speaker 1: to invoke the Insurrection Act, there is one procedure that
Speaker 1: he must follow, and he must make a proclamation that
Speaker 1: he will be introducing troops and why he will be
Speaker 1: introducing troops. Um, that's the only with procedural obstacle for
Speaker 1: invoking the Insurrection Act. So it's a relatively minimal procedural
Speaker 1: hurdle that he must satisfied. Thanks Hal. That's Harold Crent,
Speaker 1: professor at the Chicago Kent College of Law. Next Friday,
Speaker 1: the d C. Circuit Court of Appeals will hear oral
Speaker 1: arguments to determine whether Judge Emmett Sullivan has the power
Speaker 1: to review the Justice Department's plan to drop its charges
Speaker 1: against former National Security advisor Michael Flynn after his two
Speaker 1: guilty Please joining me is Brad moss, a partner at
Speaker 1: Mark said, Brad, can you remember the last time an
Speaker 1: appellate court asked a federal judge to explain his actions? No,
Speaker 1: I mean this. I'm sure there are instances in the
Speaker 1: past in which that has occurred, probably not the first
Speaker 1: time it's ever happened. But this is altogether a rather
Speaker 1: unusual and somewhat unprecedented situation, because this is where a
Speaker 1: situation where the defendant has already pleaded guilty and more
Speaker 1: than one hearing and in writing the guilty plea was
Speaker 1: already accepted, they were ready for sentencing. The Justice Department
Speaker 1: had defended itself multiple times against allegations of misconduct, against
Speaker 1: allegations that the that the false statements were not material,
Speaker 1: and then all of a sudden, at the last minute,
Speaker 1: but there meant changes its mind without rescinding its previous
Speaker 1: sworn assertions defending its position, and said we're going to
Speaker 1: dismiss the charges. We've reconsidered our legal analysis, and so
Speaker 1: put Judge Sullivan in a rather difficult situation, which is
Speaker 1: why we are in the current predicament in which we
Speaker 1: find ourselves that now has the DC Circuit hearing this
Speaker 1: next week. Judge Sullivan responded through his attorney, what was
Speaker 1: his response to why he stepped in here? So the
Speaker 1: the ultimate point that Judge Sullivan's attorney was arguing in
Speaker 1: outlining is that this is a way too early and
Speaker 1: premature for the circuit or for any kind of you know,
Speaker 1: release to be provided, because Judge Sullivan hasn't actually done
Speaker 1: anything yet. So under criminal Procedure forty eight, which is
Speaker 1: the one the government moved to dismiss the charges, it
Speaker 1: requires leading the court requires the court's permission at this
Speaker 1: point to have the charges dismissed. And what job Salvan
Speaker 1: is saying is, I'm not a rubber stamp. I get
Speaker 1: the I have the discretion to inquire before I grant leave.
Speaker 1: I have an unusual situation. It's virtually unheard of for
Speaker 1: the government to withdraw the charges in this context, after
Speaker 1: the defendant has already pled guilty multiple times in my
Speaker 1: courtroom and to me, and after the government has fought
Speaker 1: back allegations of Brady violations and things along those lines
Speaker 1: and passed motions, and to now suddenly, with this politicized environment,
Speaker 1: to move to withdraw the charges. And the Judge Sullivan's
Speaker 1: comment was, I have the authority in that circumstance to
Speaker 1: a point, an A meek us to appoint someone like
Speaker 1: Judge Gleeson to argue against the dismissal, if only to
Speaker 1: ensure the adversarial process before I make a choice. My
Speaker 1: choice might still be to grant leave and dismiss the charges,
Speaker 1: but I have that discretion to review that situation first,
Speaker 1: and that the Circuit shouldn't be intervening. It should be
Speaker 1: allowing him to conduct that discretionary In Corey, he said
Speaker 1: that the Department of Justice repeatedly affirmed for years that
Speaker 1: the evidence that Flynn lied to the FBI was iron
Speaker 1: clad and crucial to the FBI Russia investigation. How does
Speaker 1: that compare with what the Department of Justice has said? Yes,
Speaker 1: so now the just departments changed view on this, never
Speaker 1: rescinded any of their past defenses. All they have essentially
Speaker 1: said here is that even if he did lie, we
Speaker 1: have now concluded that it was not a false statement
Speaker 1: material to an ongoing investigation because the investigation shouldn't have
Speaker 1: been ongoing in the first place, which is some very fancy,
Speaker 1: you know Monday morning quarterbacking by the just former and
Speaker 1: lawyer who signed that brief, saying they shouldn't have been
Speaker 1: talking to Flynn anyway. That didn't rescind any of the
Speaker 1: past affidavits they submitted. It didn't rescind any of the
Speaker 1: past motions and oppositions they had filed in. What particularly
Speaker 1: concerned Judge Sullivan was he didn't have any of the
Speaker 1: original prosecutors on the brief. It was a brand new,
Speaker 1: temporarily appointed individual put in there by the Attorney General
Speaker 1: who signed that brief alone, and then he left as well,
Speaker 1: And so that was why Judge Salvian wanted to inquire
Speaker 1: further to see what exactly was going on there. Does
Speaker 1: anyone take into an account that Flynn pleaded to these
Speaker 1: particular charges but there were other charges that were being
Speaker 1: considered against him, Yeah, that has been mentioned. I mean,
Speaker 1: there's certainly there was a Foreign Agent Registration Act issue
Speaker 1: that came up in the plea deal that was mentioned
Speaker 1: in the statement offense that Michael Flynn had been doing
Speaker 1: work in support of Turkey and he had never registered
Speaker 1: with the Justice Department as a foreign registered agent, and
Speaker 1: that he had lied about the detail that was part
Speaker 1: of it came up in the statement offense. And there
Speaker 1: was always this issue of for there other charges that
Speaker 1: Mueller's team had been considering against Flynn prior to him
Speaker 1: pleading guilty. There was a question about whether or not
Speaker 1: he had properly outlined his work in support of Turkey
Speaker 1: and his interactions with various foreign government officials on his
Speaker 1: security clearance paperwork, and failure to properly document that is
Speaker 1: a felony can be a felony under again a team USC.
Speaker 1: One thousand one. So there were certainly other issues that
Speaker 1: could have been raised if Mueller had wanted to throw
Speaker 1: the entire kitchen sink at him, but they didn't. They
Speaker 1: struck a plea deal to get his cooperation, and those
Speaker 1: were things that I'm sure to some extent Judge Sullivan
Speaker 1: would want to enquire into as part of his assessment
Speaker 1: of the rule forty eight motions. Flynn's lawyers filed this
Speaker 1: rid of mandamus. Did the Circuit Court have to call
Speaker 1: a hearing and ask for briefs and everything? Could they
Speaker 1: have just rejected that out of hand? They could have
Speaker 1: rejected it out of hand, but I don't think anybody
Speaker 1: was expecting them to do so, given the sensitivity of
Speaker 1: the topic and given the constitutional concerns. I mean, there's
Speaker 1: certainly an issue about Brady violations and here that have
Speaker 1: been alleged there. It would have made no sense for
Speaker 1: the Circuit to have just summarily denied the motion. It
Speaker 1: was certainly proper for them at that point to get briefs,
Speaker 1: to let Judge Slivan submit a brief. Let's just department
Speaker 1: submit a brief, to let AMICI submit brief, and to
Speaker 1: call a hearing and to hear this out and to
Speaker 1: let this be truly argued before this panel. How it
Speaker 1: will play out, I think is anybody's guys. I think
Speaker 1: a lot of people are trying to get ahead of
Speaker 1: themselves on whether or not politics will play a player
Speaker 1: Roland who decides how to vote on this vere person
Speaker 1: panel with respect to whether grant that the right of
Speaker 1: mand Dame is. I do not believe they will ultimately grant.
Speaker 1: This is a more conservative panel than you might expect
Speaker 1: to find at the DC Circuit Court of Appeals, considering
Speaker 1: it's it's makeup, and with one president Trump appointd so
Speaker 1: might that play into how the judges view this? And
Speaker 1: and that's kind of going towards what I was just
Speaker 1: saying before. I think a lot of people are assuming
Speaker 1: that you know, because of the more conservative vent if
Speaker 1: some of these judges are more closely alliance to the president,
Speaker 1: that they will automatically just vote, you know, and lock
Speaker 1: step with the president. While that's certainly a potential, you
Speaker 1: know reality, I think some people are underestimating the extent
Speaker 1: to which you know, one or two these judges might
Speaker 1: be a little off put by the idea of the
Speaker 1: circuit granting this kind of relief because of the door
Speaker 1: it could open in the future. I think it would
Speaker 1: go against some of the conservative principles for them to
Speaker 1: allow for the just department and of criminal defendant who
Speaker 1: had already played guilty to you know, essentially joined forces
Speaker 1: against the judge. So I think lis a degree there
Speaker 1: to which each others are going to play it a
Speaker 1: little put close to their vest of just how much
Speaker 1: they're gonna let politics, you know, how some of their
Speaker 1: overriding conservative you know, legal principles might play a role
Speaker 1: in how they tried to weasel their way out of
Speaker 1: this and basically say no, this has got to go
Speaker 1: back to the judge until he actually makes a decision.
Speaker 1: The first when the federal government filed its last brief,
Speaker 1: it took a step even further than the Flynn attorneys
Speaker 1: had done in asking the court to stop Judge Sullivan
Speaker 1: or any other judge from proceeding with contempt proceedings, which
Speaker 1: is different from accepting the play or not correct and so.
Speaker 1: And that was in the context that technically, under federal law,
Speaker 1: federal judges have inherent authority to hold an individual that
Speaker 1: came before them in criminal contempt or lying or providing
Speaker 1: false statements to the judge. And that was something that
Speaker 1: obviously jud Sullivan was going to inquire into with his
Speaker 1: proceedings at a district court level because Mr Flint had
Speaker 1: come before first Judge Contraras and said, yes, I am
Speaker 1: pleading guilty, eyelied, and then had done before Judge Sullivan,
Speaker 1: is that yet I am guilty? I lied, had done
Speaker 1: that in a sworn statement, And so I'm sure Judge
Speaker 1: Sulvon was going to be asking him. I asked you
Speaker 1: over and over and over, are you sure? Are you sure?
Speaker 1: And you said you were? And now you're pulling it back.
Speaker 1: So are you lying? Then? Are you lying now? And
Speaker 1: technically the Judge Sullivan has the authority in that circumstance.
Speaker 1: I don't think he would employ it, but he has
Speaker 1: the authority to criminally punish Blend himself. And how does
Speaker 1: the Justice Department answer that, because it seems that that's
Speaker 1: just a separate issue from the Flynn play that if
Speaker 1: someone is received to have lied to a court, the
Speaker 1: court has the right to protect its integrity. Yes, so
Speaker 1: the Just Department's view, in this very tread soul like
Speaker 1: contorted argument they had to make basically say it would
Speaker 1: be inappropriate for Judge Sullivan to go down that path
Speaker 1: in this situation where the Justice Department is now apparently
Speaker 1: siding with Flint's lawyers, saying if there were the improprieties
Speaker 1: in how the FBI had conducted the quarries in the
Speaker 1: context of it, and so therefore, to whatever an extent,
Speaker 1: Flynn may have provided the statements that if now we're candid,
Speaker 1: it would be inappropriate for the judge to try to
Speaker 1: use that inherent authority. And to be clear, that inherent
Speaker 1: authority is rarely, if ever used, that it's not something
Speaker 1: judges commonly have to worry about because usually law enforcement
Speaker 1: takes care of it, and d OJ certainly doesn't want
Speaker 1: to start feeding any kind of authority to the judges
Speaker 1: in that regard. When the Justice Department decided to drop
Speaker 1: the charges against Flynn. It came as a shock to
Speaker 1: most people, and Attorney General bar in a TV interview
Speaker 1: explained that it was justice for all and that you
Speaker 1: wanted to make sure that everyone was treated the same.
Speaker 1: But how unusual is it after all the litigation that's
Speaker 1: gone on, and what is behind this withdrawal of the
Speaker 1: charges against Flynn. Is it part of an attempt to
Speaker 1: erase the Russia probe? Well, that's certainly is what it
Speaker 1: appears to be, at least, you know, a hit, bit
Speaker 1: by bit effort. First in the writer Stone sentencing for
Speaker 1: the President, g o J intervened on the sentencing recommendation,
Speaker 1: and then now with Flynn, was trying to get the
Speaker 1: charges pulled back entirely. You see a slow, you know,
Speaker 1: steady degradation of the entirety of the Mulla report. You've got,
Speaker 1: you know, the Attorney General bar has got all these
Speaker 1: different U S attorneys running separate probes, trying to peel
Speaker 1: apart and pull apart any semblance trust in what Mueller
Speaker 1: had done, and trying to suggest the whole thing was
Speaker 1: a fraud. So to an extent, Judge Sullivan, I think
Speaker 1: at least to the degree that there's something before him,
Speaker 1: is trying to reassure public confidence in how this is
Speaker 1: being handled. He obviously is not in a position to
Speaker 1: nor should he be using his role to try to
Speaker 1: address the entire of Mueller issue, But he is trying
Speaker 1: to ensure that what was done before him, and he
Speaker 1: is a constitutional officer, it was appointed by a president
Speaker 1: and confirmed by the Senate at the time he was
Speaker 1: put on the bench, has that role to ensure that
Speaker 1: the proceedings before him done in candor. And when he
Speaker 1: sees what's going on here with how d o J
Speaker 1: is now you know, playing foot see with the Flynn team,
Speaker 1: there is a certain degree of this dispression that he
Speaker 1: has that he has chosen to employ to inquire further
Speaker 1: to make sure he personally is comfortable with what's going
Speaker 1: on before he signs off on dismissing the charges. Judd
Speaker 1: Sullivan was concerned that the career prosecutors handling the case
Speaker 1: declined to sign the motion to dismiss, but the government's
Speaker 1: brief was signed by one of the long time prosecutors
Speaker 1: on the case, as well as two other career prosecutors,
Speaker 1: So does that mitigate against that one argument by Judd
Speaker 1: Sullivan it might and I think that's something that he
Speaker 1: was certainly going to, you know, inquire into. And this
Speaker 1: is part of the whole argument that ultimately he's making
Speaker 1: to the circuit is this is all prettymature to try
Speaker 1: to stop what he's doing. He hasn't even made a
Speaker 1: choice yet. He might still grant the dismissal and Flynn
Speaker 1: will go free, But all he's trying to do at
Speaker 1: the moment is flesh out the record a little bit
Speaker 1: more clearly, given the unusual nature of what's going on before,
Speaker 1: including this really weird set of memos coming out of
Speaker 1: d O J. You know, first before they withdrew everything,
Speaker 1: and now after they tried to withdraw charges and the
Speaker 1: rotating chairs of who's on the breech, and that's within
Speaker 1: his discretion to enquire into. I personally think he was
Speaker 1: still going to grant themotions dismissed in the end, but
Speaker 1: now I just don't know. Thanks Brad, that's Brad Moss
Speaker 1: of mark Z. I'm Jim Rosso and this is joom
Speaker 1: Burn