1 00:00:00,480 --> 00:00:05,720 Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio. 2 00:00:06,600 --> 00:00:11,160 Speaker 1: With unprecedented mail in voting expected because of the coronavirus pandemic, 3 00:00:11,520 --> 00:00:15,680 Speaker 1: many state officials, concerned about slower than usual mail delivery 4 00:00:15,720 --> 00:00:19,360 Speaker 1: are extending mail in ballot deadlines and making backup plans 5 00:00:19,400 --> 00:00:22,600 Speaker 1: to smooth early voting in the weeks before the November election, 6 00:00:22,880 --> 00:00:25,920 Speaker 1: but experts warned that tens of thousands of ballots might 7 00:00:25,960 --> 00:00:28,840 Speaker 1: still be thrown out. Joining me is election law expert 8 00:00:28,920 --> 00:00:32,040 Speaker 1: Richard Brofald, a professor at Columbia Law School, which I 9 00:00:32,080 --> 00:00:35,560 Speaker 1: want to start by getting your take on the legitimacy 10 00:00:35,640 --> 00:00:41,000 Speaker 1: of President Trump's claims that voting absentee by mail is okay, 11 00:00:41,040 --> 00:00:43,760 Speaker 1: but voting by mail is not and is going to 12 00:00:43,840 --> 00:00:46,960 Speaker 1: lead to huge fraud. The President is trying to make 13 00:00:47,000 --> 00:00:50,720 Speaker 1: a distinction between two different things which are not different 14 00:00:50,760 --> 00:00:54,360 Speaker 1: from each other, even the terminology is blurred. The President 15 00:00:54,920 --> 00:00:57,720 Speaker 1: has almost always voted, as has most of his cabinet 16 00:00:57,720 --> 00:01:00,680 Speaker 1: and his family, and I think he's thing about and 17 00:01:00,680 --> 00:01:02,800 Speaker 1: it's the same kind of absentee ballot, But in his 18 00:01:02,880 --> 00:01:05,759 Speaker 1: case it was you had a justification for voting absentee 19 00:01:05,800 --> 00:01:08,039 Speaker 1: and that you were going to be out of a jurisdiction, 20 00:01:08,400 --> 00:01:10,680 Speaker 1: maybe on business, or you were sick, you couldn't get 21 00:01:10,720 --> 00:01:12,720 Speaker 1: to the volt. We've had that kind of mechanism in 22 00:01:12,760 --> 00:01:14,800 Speaker 1: place for a century. I mean, it really goes back 23 00:01:14,840 --> 00:01:17,920 Speaker 1: to the Second World War. In modern times, many states 24 00:01:17,959 --> 00:01:20,080 Speaker 1: have moved to make it very easy for people to 25 00:01:20,080 --> 00:01:23,280 Speaker 1: get absentee ballot so called no excuse absentee voting, which 26 00:01:23,319 --> 00:01:25,959 Speaker 1: is now more than half the state and the handful 27 00:01:26,000 --> 00:01:27,959 Speaker 1: of states I think we're now up to five have 28 00:01:28,040 --> 00:01:30,480 Speaker 1: said we're just gonna nail use the ballot though you 29 00:01:30,520 --> 00:01:32,479 Speaker 1: don't even have to go through the trouble of asking 30 00:01:32,480 --> 00:01:35,119 Speaker 1: for absentee votes. We're gonna do the entire election by 31 00:01:35,160 --> 00:01:38,160 Speaker 1: mail and have a very very limited exception for people 32 00:01:38,160 --> 00:01:40,120 Speaker 1: who are unable to use the mount so that a 33 00:01:40,120 --> 00:01:42,360 Speaker 1: handful of states at must in the West, have been 34 00:01:42,440 --> 00:01:45,000 Speaker 1: all mail in voting. They don't even use the term absentee, 35 00:01:45,200 --> 00:01:47,720 Speaker 1: but it's the same kind of ballot and the same 36 00:01:47,760 --> 00:01:51,559 Speaker 1: mechanism as would be the case in old style absentee voting. 37 00:01:51,800 --> 00:01:54,800 Speaker 1: A voter at home fills out a ballot, twust it 38 00:01:54,840 --> 00:01:57,480 Speaker 1: in an envelope, seals the envelope usually then put another 39 00:01:57,600 --> 00:02:00,800 Speaker 1: envelope over it signs their name. Some states have other 40 00:02:00,840 --> 00:02:04,760 Speaker 1: requirements by witnessing and mail him in. In some places 41 00:02:04,840 --> 00:02:07,240 Speaker 1: you can bring it in. In some places they have 42 00:02:07,320 --> 00:02:09,440 Speaker 1: so called drop boxes where you can drop it off 43 00:02:09,440 --> 00:02:11,600 Speaker 1: if you don't trust the postal service. But it's that's 44 00:02:11,639 --> 00:02:14,079 Speaker 1: literally the same ballot, whether or not it is one 45 00:02:14,120 --> 00:02:16,520 Speaker 1: that you requested because you were going to be out 46 00:02:16,560 --> 00:02:18,760 Speaker 1: of town that day, or it's one that the state 47 00:02:18,800 --> 00:02:20,799 Speaker 1: has mail to you. So this is a long way 48 00:02:20,840 --> 00:02:23,040 Speaker 1: of saying that this president is drawing a distinction where 49 00:02:23,040 --> 00:02:26,560 Speaker 1: there isn't one. President Trump has also been attacking the 50 00:02:26,600 --> 00:02:30,240 Speaker 1: post Office for quite some time, and he's now put 51 00:02:30,280 --> 00:02:35,079 Speaker 1: a new postmaster General in who has barred over time 52 00:02:35,360 --> 00:02:39,200 Speaker 1: and put in other changes that some of the postal 53 00:02:39,200 --> 00:02:42,919 Speaker 1: workers are complaining about. What can be done to make 54 00:02:43,000 --> 00:02:46,120 Speaker 1: sure that the post Office can deliver the mail on 55 00:02:46,280 --> 00:02:50,040 Speaker 1: time come election day. That's a very tough question. It 56 00:02:50,160 --> 00:02:52,320 Speaker 1: is one of the things the Democrats have been fighting 57 00:02:52,320 --> 00:02:55,880 Speaker 1: about in Washington. In their bill, their COVID release bill, 58 00:02:55,880 --> 00:02:58,920 Speaker 1: which they the path House in May, they put an 59 00:02:58,919 --> 00:03:02,000 Speaker 1: additional funding for the service to help the Postal Service 60 00:03:02,080 --> 00:03:04,480 Speaker 1: handle the additional ballots. There are going to be far 61 00:03:04,560 --> 00:03:07,239 Speaker 1: more mailed in ballots this time around than in any 62 00:03:07,280 --> 00:03:12,080 Speaker 1: other election. In maybe of the public voted by mail, 63 00:03:12,520 --> 00:03:14,760 Speaker 1: that's likely to be much higher this time. So they 64 00:03:14,800 --> 00:03:17,359 Speaker 1: specifically put in money to help the postal service and 65 00:03:17,560 --> 00:03:20,120 Speaker 1: loads the search. So far, one of the reasons I 66 00:03:20,160 --> 00:03:23,160 Speaker 1: think the Republicans have been resisting the Democratic bill is 67 00:03:23,200 --> 00:03:24,760 Speaker 1: they don't want to put in this extra money for 68 00:03:24,800 --> 00:03:26,800 Speaker 1: the postal service. So one way to deal with this 69 00:03:26,800 --> 00:03:29,440 Speaker 1: would be to give the post Office extra money. Another 70 00:03:29,480 --> 00:03:33,560 Speaker 1: redly some out pressure the Postmaster General to change these 71 00:03:33,639 --> 00:03:35,320 Speaker 1: new work rules that he's put in place that you've 72 00:03:35,360 --> 00:03:38,640 Speaker 1: just mentioned, barring overtime traditional rule the post Office as 73 00:03:38,680 --> 00:03:40,280 Speaker 1: they try to get all the mails that they have 74 00:03:40,360 --> 00:03:43,880 Speaker 1: that they delivered. He's basically saying, if there's mail that's undelivered, 75 00:03:43,880 --> 00:03:46,360 Speaker 1: your mail carry's and delivered at the end of the 76 00:03:46,400 --> 00:03:50,720 Speaker 1: official work day, come back, don't deliver it, wait till tomorrow. Well, 77 00:03:50,720 --> 00:03:53,720 Speaker 1: this could be a real problem, um. And really, when 78 00:03:53,760 --> 00:03:56,040 Speaker 1: we're talking about mail and ballots, we're really talking about 79 00:03:56,080 --> 00:03:58,960 Speaker 1: two steps. Mailing the ballot to the voter so the 80 00:03:59,040 --> 00:04:01,280 Speaker 1: voter can fill it out, and then the voter mailing 81 00:04:01,320 --> 00:04:03,960 Speaker 1: it back to the local Board of Elections, so it 82 00:04:04,040 --> 00:04:05,960 Speaker 1: really is going to be going through the mail twice 83 00:04:06,440 --> 00:04:09,760 Speaker 1: and so any problems with delay gets doubled. So what 84 00:04:09,840 --> 00:04:11,480 Speaker 1: else can be done? While one again would be to 85 00:04:11,520 --> 00:04:14,760 Speaker 1: get them to change those rules, another possibility, of course, 86 00:04:15,200 --> 00:04:18,359 Speaker 1: is to educate people to voting early, you know, asking 87 00:04:18,440 --> 00:04:20,760 Speaker 1: for their ballots earlier, or getting their ballots and voting 88 00:04:20,800 --> 00:04:24,080 Speaker 1: them early so that they give the post office more time. 89 00:04:24,560 --> 00:04:28,479 Speaker 1: Another possibility is in some jurisdictions, the local election board 90 00:04:28,480 --> 00:04:31,359 Speaker 1: has set up a quote drop boxes sort of secure 91 00:04:31,440 --> 00:04:35,599 Speaker 1: boxes where the voter can drop the ballot off. Voter 92 00:04:35,640 --> 00:04:38,080 Speaker 1: doesn't have to go into the polling place, but the 93 00:04:38,080 --> 00:04:40,240 Speaker 1: ballot could be dropped off, you know, maybe in a 94 00:04:40,279 --> 00:04:43,240 Speaker 1: government building, maybe at a shopping mall, maybe to school. Uh, 95 00:04:43,279 --> 00:04:46,200 Speaker 1: and so the ballot could be returned without using the 96 00:04:46,200 --> 00:04:48,880 Speaker 1: postal service. Finally, and this has been one of the 97 00:04:48,960 --> 00:04:51,720 Speaker 1: more contested issues, is the question of when does the 98 00:04:51,760 --> 00:04:55,680 Speaker 1: ballot have to be returned. Some jurisdictions require that the 99 00:04:55,760 --> 00:04:59,840 Speaker 1: ballot d in the local Board of Elections by end 100 00:04:59,839 --> 00:05:03,160 Speaker 1: of election day, but other jurisdictions whom I mean really 101 00:05:03,160 --> 00:05:06,400 Speaker 1: means states say it's okay for the ballot to come 102 00:05:06,440 --> 00:05:09,520 Speaker 1: in after election day, so long as it's postmarked by 103 00:05:09,560 --> 00:05:12,120 Speaker 1: election day. So as long as you get the ballot 104 00:05:12,240 --> 00:05:14,520 Speaker 1: into the system by election day, the fact that it 105 00:05:14,600 --> 00:05:17,160 Speaker 1: might take the post office five days to bring it 106 00:05:17,160 --> 00:05:19,919 Speaker 1: in instead of two, that shouldn't count against you. And 107 00:05:19,960 --> 00:05:22,279 Speaker 1: a number of states are switching to that or being 108 00:05:22,320 --> 00:05:25,160 Speaker 1: asked to switch to that now. And that last thing, 109 00:05:25,160 --> 00:05:26,960 Speaker 1: and I understand see that at least one state is 110 00:05:27,000 --> 00:05:30,520 Speaker 1: talking about doing this is putting first class post on 111 00:05:30,560 --> 00:05:33,280 Speaker 1: the ballot. Right now, it's being treated as both mail. 112 00:05:33,800 --> 00:05:36,480 Speaker 1: But if states want to pay more money on it's 113 00:05:36,480 --> 00:05:38,400 Speaker 1: a shame that they have so many other expenses, they'd 114 00:05:38,400 --> 00:05:40,599 Speaker 1: be forced to do this. They could use first class 115 00:05:40,640 --> 00:05:44,040 Speaker 1: stamps and that might speed the return of the ballots 116 00:05:44,040 --> 00:05:48,400 Speaker 1: when they get back. So in missing a deadline was 117 00:05:48,440 --> 00:05:52,159 Speaker 1: the second biggest reason a mail in ballot was rejected. 118 00:05:52,520 --> 00:05:56,719 Speaker 1: Are any states now moving to try to extend the 119 00:05:56,839 --> 00:06:00,520 Speaker 1: time that a ballot can be received, and can they 120 00:06:00,520 --> 00:06:04,000 Speaker 1: be done by executive order? That's a good question. I 121 00:06:04,000 --> 00:06:06,800 Speaker 1: believe some states have already done that, um and I 122 00:06:06,800 --> 00:06:09,279 Speaker 1: believe it could be done by executive order. Certainly a 123 00:06:09,400 --> 00:06:12,120 Speaker 1: number of states did that, I think in the context 124 00:06:12,200 --> 00:06:14,640 Speaker 1: of the primary election and I think it could be 125 00:06:14,640 --> 00:06:18,279 Speaker 1: done by executive or or by regulation of the executive 126 00:06:18,320 --> 00:06:20,560 Speaker 1: order usually come from governor, could be by regulation or 127 00:06:20,560 --> 00:06:24,159 Speaker 1: administrative rule of the state Board of Election the chief 128 00:06:24,160 --> 00:06:27,840 Speaker 1: elections officer. Again, whether that can be done UH through 129 00:06:27,880 --> 00:06:31,120 Speaker 1: administration might depend on the law of the individual state. 130 00:06:31,640 --> 00:06:37,480 Speaker 1: Have changes by the executive survived judicial challenges. I think 131 00:06:37,480 --> 00:06:41,799 Speaker 1: where the courts have been more active is in situations where, 132 00:06:41,839 --> 00:06:44,720 Speaker 1: like the Supreme Court has been resisting a lot of changes, 133 00:06:45,040 --> 00:06:48,680 Speaker 1: is when a lower court order is the change UH. 134 00:06:48,680 --> 00:06:51,760 Speaker 1: And there I think of the same Preme Court has 135 00:06:51,800 --> 00:06:56,480 Speaker 1: on repeated occasions this year so far undone those changes 136 00:06:56,520 --> 00:06:58,520 Speaker 1: designed to make it easier to get things on the 137 00:06:58,560 --> 00:07:02,480 Speaker 1: ballot or the vote. But I think when the executive, 138 00:07:03,000 --> 00:07:05,080 Speaker 1: whether it's the governor or the Secretary of the state, 139 00:07:05,080 --> 00:07:09,159 Speaker 1: Secretary of State UM, has agreed to the change UM. 140 00:07:09,240 --> 00:07:12,880 Speaker 1: I don't think there have been court interventions that have 141 00:07:13,080 --> 00:07:15,080 Speaker 1: stopped that. There have been so many discus in so 142 00:07:15,120 --> 00:07:17,760 Speaker 1: many cases and less really going back to about March 143 00:07:17,880 --> 00:07:21,240 Speaker 1: March April during the primaries that I can't say out 144 00:07:21,240 --> 00:07:23,320 Speaker 1: of court has never stopped that. But I think for 145 00:07:23,360 --> 00:07:26,880 Speaker 1: the most part, if the state government is agreeable to 146 00:07:27,000 --> 00:07:29,920 Speaker 1: doing this. The courts have not stepped in. I want 147 00:07:29,920 --> 00:07:33,320 Speaker 1: to just go over some of the Trump challenges trump lawsuit, 148 00:07:33,760 --> 00:07:36,560 Speaker 1: and you know, you mentioned ballot drop boxes and I 149 00:07:36,640 --> 00:07:39,760 Speaker 1: thought that sounded like a great idea. But the Trump 150 00:07:39,880 --> 00:07:45,160 Speaker 1: campaign is suing Pennsylvania over there drop boxes. How strong 151 00:07:45,240 --> 00:07:48,400 Speaker 1: is their case? Um, I think there's a lot of 152 00:07:48,440 --> 00:07:52,480 Speaker 1: their argument is basically, uh, that this is less secure. Now, 153 00:07:53,160 --> 00:07:57,280 Speaker 1: my sense is that the question of balancing access and 154 00:07:57,320 --> 00:07:59,840 Speaker 1: security is one we normally leave to the states and 155 00:08:00,000 --> 00:08:03,600 Speaker 1: local governments. Uh, that's a fight about voter ID. Voter 156 00:08:03,640 --> 00:08:05,920 Speaker 1: idea was supposed to be, you know, prevent against fraud. 157 00:08:05,960 --> 00:08:08,240 Speaker 1: On the other hand, and makes um uh it is 158 00:08:08,400 --> 00:08:11,160 Speaker 1: harder for people to vote U. The courts have generally 159 00:08:11,200 --> 00:08:13,800 Speaker 1: left that ballots to be set by stay in the 160 00:08:13,840 --> 00:08:17,280 Speaker 1: local administrators. So you might think that he would you 161 00:08:17,280 --> 00:08:19,280 Speaker 1: would have the same rule with respect to the use 162 00:08:19,400 --> 00:08:23,400 Speaker 1: of drop boxes. I could see being the jurisdictions being 163 00:08:23,440 --> 00:08:26,640 Speaker 1: pushed to make sure to show that they made them secure. 164 00:08:27,080 --> 00:08:30,040 Speaker 1: I think that's a legitimate concern, is whether or not 165 00:08:30,200 --> 00:08:34,120 Speaker 1: all these boxes are tamper proof, whether I don't know 166 00:08:34,160 --> 00:08:37,720 Speaker 1: there are cameras on them, etcetera. Some jurisdictions have moved 167 00:08:37,720 --> 00:08:40,200 Speaker 1: towards having kind of bar codes on the ballots to 168 00:08:40,200 --> 00:08:44,800 Speaker 1: make them traceable again anti fraud. But I think the 169 00:08:44,840 --> 00:08:47,800 Speaker 1: idea that UM, I think they ought to have a 170 00:08:47,840 --> 00:08:53,360 Speaker 1: hard time saying that states and local governments can't innovate 171 00:08:53,440 --> 00:08:57,320 Speaker 1: new mechanisms that make it easier to vote, particularly in 172 00:08:57,360 --> 00:09:01,000 Speaker 1: the pandemic context. I mean, there is a public health 173 00:09:01,120 --> 00:09:04,320 Speaker 1: backdrop to all of this, which is that there is 174 00:09:04,360 --> 00:09:07,040 Speaker 1: a there's likely to be I mean, we're probably still 175 00:09:07,040 --> 00:09:09,080 Speaker 1: going to be in the middle of COVID in November, 176 00:09:09,440 --> 00:09:12,280 Speaker 1: and there's there's a heightened public health concern. We have 177 00:09:12,400 --> 00:09:15,440 Speaker 1: large numbers of people showing up in polling places. Trump's 178 00:09:15,480 --> 00:09:20,120 Speaker 1: campaign is suing Nevada. Explain what that lawsuits about. Again, 179 00:09:20,160 --> 00:09:22,839 Speaker 1: it's a claim that by making it easier for people 180 00:09:22,880 --> 00:09:25,920 Speaker 1: to get absentee ballots by the state sending absentee ballots, 181 00:09:26,080 --> 00:09:29,080 Speaker 1: I have a state liberalizing the deadline for submitting the 182 00:09:29,120 --> 00:09:34,960 Speaker 1: absentee ballots, that that is somehow the violation of the 183 00:09:35,040 --> 00:09:38,560 Speaker 1: rights to an election with integrity. One particular issue they've 184 00:09:38,640 --> 00:09:44,280 Speaker 1: raised is again it's really pretty silly, UM, is that UM, 185 00:09:44,360 --> 00:09:48,800 Speaker 1: if a ballot is received after election day, but counted. 186 00:09:49,160 --> 00:09:52,640 Speaker 1: It violates the congressional law that sets the specific day 187 00:09:53,000 --> 00:09:57,240 Speaker 1: this year, November three, as election day. UM. What ludicrous 188 00:09:57,240 --> 00:09:59,840 Speaker 1: about that? Is? UM? What the what? The state pre 189 00:10:00,000 --> 00:10:02,320 Speaker 1: a and says it's long it's postmarked election on election 190 00:10:02,400 --> 00:10:06,480 Speaker 1: day UM or earlier. UM, doesn't matter when it's received. Well, 191 00:10:06,760 --> 00:10:09,199 Speaker 1: submitting the ballot into the ballot, into the mailboxer in 192 00:10:09,240 --> 00:10:11,240 Speaker 1: the post into the post office and getting a POSTMONE 193 00:10:11,400 --> 00:10:15,160 Speaker 1: that's the equivalent of voting, UM voting in a polling place. 194 00:10:15,200 --> 00:10:18,400 Speaker 1: So Congress says you have to vote by election day. Well, 195 00:10:18,400 --> 00:10:20,880 Speaker 1: the votes have already been cast. This is a problem 196 00:10:20,880 --> 00:10:24,160 Speaker 1: of receiving them and absentee ballots. You know, we've had 197 00:10:24,800 --> 00:10:28,920 Speaker 1: ballasts come in from overseas, from from soldiers UH and 198 00:10:28,960 --> 00:10:31,160 Speaker 1: the armed forces overseas. They come there as they can 199 00:10:31,200 --> 00:10:34,560 Speaker 1: come in past election day, and they're still accounted. It's 200 00:10:34,640 --> 00:10:37,079 Speaker 1: kind of a silly argument that says that if a 201 00:10:37,160 --> 00:10:41,240 Speaker 1: ballot has been cast before election day but is received 202 00:10:41,360 --> 00:10:44,599 Speaker 1: after election day, because that's the way the postal service works, 203 00:10:44,640 --> 00:10:49,200 Speaker 1: it's somehow is inconsistent with their being one election day. Obviously, 204 00:10:49,240 --> 00:10:53,880 Speaker 1: the Trump campaign is trying to curtail mail in voting 205 00:10:54,520 --> 00:10:57,920 Speaker 1: or any kind of voting besides in person voting every 206 00:10:57,920 --> 00:11:02,920 Speaker 1: way they can. Is there any proof that Democrats vote 207 00:11:02,960 --> 00:11:05,959 Speaker 1: by mail more or will vote by mail more than 208 00:11:06,040 --> 00:11:11,480 Speaker 1: Republicans historically until this all became partisan political in the 209 00:11:11,559 --> 00:11:14,679 Speaker 1: current election climate, I think there was some evidence that 210 00:11:14,760 --> 00:11:18,079 Speaker 1: Republicans voted by mail more than Democrats. It was something 211 00:11:18,240 --> 00:11:22,439 Speaker 1: that older voters particularly liked, and rural voters from what 212 00:11:22,679 --> 00:11:25,080 Speaker 1: was actually more difficult to get to the polling place. 213 00:11:25,320 --> 00:11:27,480 Speaker 1: I think. I think overall that was not a big 214 00:11:27,520 --> 00:11:31,400 Speaker 1: difference between Republicans and Democrats in terms of their use 215 00:11:32,000 --> 00:11:34,320 Speaker 1: by mail. Platific extent there was, I think it was 216 00:11:34,320 --> 00:11:37,960 Speaker 1: slightly more Republican. And there's also evidence that many voters 217 00:11:37,960 --> 00:11:41,880 Speaker 1: of color preferred to vote in person because suspicions about 218 00:11:41,920 --> 00:11:44,520 Speaker 1: the postal service. They having thought so hard to get 219 00:11:44,520 --> 00:11:48,040 Speaker 1: the ballot, there's a certain degree of satisfaction actually physically 220 00:11:48,160 --> 00:11:50,480 Speaker 1: voting at a polling place. So I think there is 221 00:11:50,559 --> 00:11:54,480 Speaker 1: some evidence that voters of color, particularly African Americans, were 222 00:11:54,480 --> 00:11:57,080 Speaker 1: somewhat skeptical. I mean, again, this is all the margins. 223 00:11:57,200 --> 00:11:59,200 Speaker 1: I think for the most part there was not big differences, 224 00:11:59,400 --> 00:12:02,400 Speaker 1: but to the extent they were, my sense was that 225 00:12:02,640 --> 00:12:05,839 Speaker 1: by mail was probably more commonly used by Republicans and 226 00:12:05,920 --> 00:12:09,880 Speaker 1: Democrats until this all became partisan comment. Let's talk a 227 00:12:09,880 --> 00:12:13,200 Speaker 1: little bit about the Supreme Court, because you mentioned that 228 00:12:13,559 --> 00:12:17,520 Speaker 1: until today the Supreme Court seemed to be undoing all 229 00:12:17,520 --> 00:12:20,320 Speaker 1: the efforts to ease access to the ballot during the 230 00:12:20,360 --> 00:12:25,640 Speaker 1: coronavirus pandemic. Just today, the Supreme Court declined to block 231 00:12:25,800 --> 00:12:29,600 Speaker 1: Rhode Island from proceeding with plans to relax to witness 232 00:12:29,720 --> 00:12:34,440 Speaker 1: or notary requirement for absentee ballots in upcoming elections, rejecting 233 00:12:34,440 --> 00:12:38,440 Speaker 1: a Republican challenge. Tell us about that case. So I 234 00:12:38,480 --> 00:12:41,760 Speaker 1: do point out the Supreme Court is now rendering about 235 00:12:41,800 --> 00:12:45,520 Speaker 1: a half dozen decisions, uh, typically without all of them 236 00:12:45,520 --> 00:12:48,720 Speaker 1: I think, without floral argument or or generally on the papers, 237 00:12:49,200 --> 00:12:55,120 Speaker 1: UM dealing with decisions by lower federal court in one 238 00:12:55,160 --> 00:12:58,760 Speaker 1: way or another. UM making it easier to get a 239 00:12:58,760 --> 00:13:02,000 Speaker 1: petition on the ballot for a referendum, or easier to 240 00:13:02,080 --> 00:13:06,000 Speaker 1: vote in light of of conditions created by the pandemic. 241 00:13:06,720 --> 00:13:12,240 Speaker 1: For example, UM allow allowing the fear of COVID and 242 00:13:12,280 --> 00:13:15,280 Speaker 1: possibly getting COVID accountans and illness for purposes of an 243 00:13:15,280 --> 00:13:18,720 Speaker 1: excuse for an absentee vote, or with respect to petitions 244 00:13:18,760 --> 00:13:22,599 Speaker 1: to get ballot propositions referenda on the ballot, reducing the 245 00:13:22,679 --> 00:13:25,680 Speaker 1: number of signatures required. Typically in order to get a 246 00:13:25,760 --> 00:13:27,320 Speaker 1: question on the ballot, you have you need a certain 247 00:13:27,360 --> 00:13:30,679 Speaker 1: number of signatures. People collect them by going around shopping 248 00:13:30,679 --> 00:13:34,120 Speaker 1: malls and downtowns, and and with with with all the 249 00:13:34,120 --> 00:13:37,040 Speaker 1: shutdowns on the stay at home rules, it became almost 250 00:13:37,040 --> 00:13:39,960 Speaker 1: impossible to collect those signatures. So in a number of 251 00:13:40,480 --> 00:13:44,320 Speaker 1: lawsuits various federal judges around the country, and in different 252 00:13:44,320 --> 00:13:47,880 Speaker 1: cases not always the number of them. Basically, UH said 253 00:13:47,920 --> 00:13:52,400 Speaker 1: that under current circumstances, the law, which was normally a 254 00:13:52,520 --> 00:13:56,199 Speaker 1: valid competitutional law, needs to be relaxed. They cut the 255 00:13:56,280 --> 00:13:58,559 Speaker 1: number of signatures they send in a number of the 256 00:13:58,559 --> 00:14:01,480 Speaker 1: amount of time to get something on the ballot. They 257 00:14:01,520 --> 00:14:05,320 Speaker 1: loosen what counts to an excuse. UH, they might loosen 258 00:14:05,400 --> 00:14:09,360 Speaker 1: the witnessing requirement of your signature for an absencee ballot center. 259 00:14:09,400 --> 00:14:12,520 Speaker 1: They're in number of cases like this UM until today, 260 00:14:12,920 --> 00:14:18,160 Speaker 1: the Supreme Court has consistently struck those down under something 261 00:14:18,520 --> 00:14:21,240 Speaker 1: rules only own as the first cell principle, which is 262 00:14:21,320 --> 00:14:27,080 Speaker 1: that court shouldn't be changing the rules that govern an election. UH. 263 00:14:27,200 --> 00:14:29,520 Speaker 1: An effect on the eve of the election. In many 264 00:14:29,520 --> 00:14:34,960 Speaker 1: of these cases involved primaries, the primary season, or approaching 265 00:14:35,000 --> 00:14:37,720 Speaker 1: deadlines for getting petitions on the ballot. But the sense 266 00:14:37,840 --> 00:14:41,880 Speaker 1: is that when courts changed the rules for an election, UM, 267 00:14:42,040 --> 00:14:45,360 Speaker 1: it could cause confusion, It could be seen as having 268 00:14:45,600 --> 00:14:49,720 Speaker 1: partisan consequence. UM. The court is not taken into account 269 00:14:49,800 --> 00:14:52,200 Speaker 1: the idea that the rules have really been changed by 270 00:14:52,240 --> 00:14:55,160 Speaker 1: the pandemic itself, and that what the courts they're trying 271 00:14:55,160 --> 00:14:58,160 Speaker 1: to do is revised the rules in light of the 272 00:14:58,240 --> 00:15:02,400 Speaker 1: change circumstances presented the pandemic. But the court I didn't 273 00:15:02,400 --> 00:15:05,320 Speaker 1: get they've often been divided, UM, has not recognized that 274 00:15:05,760 --> 00:15:08,560 Speaker 1: today's case was different. This case came out of Rhode Island. 275 00:15:08,560 --> 00:15:12,000 Speaker 1: As you mentioned, UM, there was a consent decree in 276 00:15:12,000 --> 00:15:15,840 Speaker 1: which the state agreed uh not to enforce the to 277 00:15:15,960 --> 00:15:19,680 Speaker 1: witness requirement for somebody to be witnessing. Somebody witnessing and 278 00:15:19,760 --> 00:15:23,520 Speaker 1: absentee voters signing the back of the envelope that's really 279 00:15:23,560 --> 00:15:28,080 Speaker 1: them uh submitting the vote in part because if ar 280 00:15:28,120 --> 00:15:31,160 Speaker 1: under locked out, it maybe hard to get witnesses. UM. Uh. 281 00:15:31,280 --> 00:15:33,840 Speaker 1: This time, of course, that it was different because the 282 00:15:33,920 --> 00:15:37,160 Speaker 1: state had agreed to this. This was a consent to Cree, 283 00:15:37,440 --> 00:15:39,400 Speaker 1: a loss it brought against the state, but the state 284 00:15:39,520 --> 00:15:42,200 Speaker 1: ultimately agreed with the change, so the state was not 285 00:15:42,400 --> 00:15:46,600 Speaker 1: challenging the change. Only the Republican National Committee and the 286 00:15:46,640 --> 00:15:49,960 Speaker 1: Court six three concluded that if the state was okay 287 00:15:50,040 --> 00:15:52,680 Speaker 1: with this change, there was no reason for the court 288 00:15:52,720 --> 00:15:55,240 Speaker 1: to step in. This is what you've seen this pattern. 289 00:15:55,320 --> 00:15:58,560 Speaker 1: Does it tell us what will happen in cases coming 290 00:15:58,640 --> 00:16:02,920 Speaker 1: up where state officials make changes, for example, to either 291 00:16:03,000 --> 00:16:06,520 Speaker 1: the deadline for mail in ballots or the way they're 292 00:16:06,520 --> 00:16:10,000 Speaker 1: handled court. It's always like reading the tea leaves. You 293 00:16:10,000 --> 00:16:13,680 Speaker 1: can never but it is a hopeful sign that if 294 00:16:13,760 --> 00:16:18,280 Speaker 1: the decision comes from authorized state decision makers and he 295 00:16:18,400 --> 00:16:21,920 Speaker 1: is consistent with state rules and procedures for doing state business, 296 00:16:22,200 --> 00:16:24,360 Speaker 1: that they would not step it and that they would 297 00:16:24,400 --> 00:16:28,080 Speaker 1: accept the change. Thanks rich that's Richard Brifault of Columbia 298 00:16:28,160 --> 00:16:32,480 Speaker 1: Law School. Judges on an ombank panel of the DC 299 00:16:32,640 --> 00:16:36,960 Speaker 1: Federal Appeals Court grilled former National Security Advisor Michael Flynn's 300 00:16:37,040 --> 00:16:39,960 Speaker 1: lawyer about his claim that a trial court judge has 301 00:16:40,000 --> 00:16:43,440 Speaker 1: no choice but to grant the Justice Department surprise motion 302 00:16:43,520 --> 00:16:46,240 Speaker 1: to dismiss the criminal case against him. Will the full 303 00:16:46,320 --> 00:16:49,360 Speaker 1: court reverse the decision of the three judge panel who 304 00:16:49,400 --> 00:16:52,280 Speaker 1: gave a victory to Flynn and the government. Joining me 305 00:16:52,320 --> 00:16:55,280 Speaker 1: is Bloomberg Legal reporter Eric Lawson, who has been covering 306 00:16:55,320 --> 00:16:59,440 Speaker 1: the Flynn case. Let's start with the long background of 307 00:16:59,480 --> 00:17:01,840 Speaker 1: this case. How do we get to the point where 308 00:17:01,880 --> 00:17:05,399 Speaker 1: there's an ombank panel of judges. Well, it does stretch 309 00:17:05,440 --> 00:17:08,840 Speaker 1: back to charges that Michael Flynn pleaded guilty too. He 310 00:17:08,880 --> 00:17:12,760 Speaker 1: pleaded guilty to lying to two FBI agents back in 311 00:17:12,760 --> 00:17:16,720 Speaker 1: the very early days of the Russia investigation. Uh So, 312 00:17:17,000 --> 00:17:19,960 Speaker 1: he was charged with that they had him on tape 313 00:17:20,560 --> 00:17:23,720 Speaker 1: discussing certain matters with the Russian ambassador to the US. 314 00:17:24,160 --> 00:17:27,119 Speaker 1: He did not tell the truth about those conversations to 315 00:17:27,280 --> 00:17:32,480 Speaker 1: the FBI agents he was charged. He eventually pleaded guilty, 316 00:17:32,520 --> 00:17:35,800 Speaker 1: but then more recently, back in January, he decided to 317 00:17:35,800 --> 00:17:39,040 Speaker 1: withdraw this fleet and ultimately, around the same time the 318 00:17:39,040 --> 00:17:42,800 Speaker 1: President Trump was regularly criticizing this case against one of 319 00:17:42,840 --> 00:17:47,720 Speaker 1: his longtime allies, the Justice Department switched course, abandoned the case, 320 00:17:47,840 --> 00:17:52,960 Speaker 1: citing new evidence, and decided to seek dismissal. Now the 321 00:17:53,040 --> 00:17:56,960 Speaker 1: judge overseeing the case and then Sullivan did not immediately. 322 00:17:57,040 --> 00:17:59,639 Speaker 1: Rubbert Sampas and signaled that he wanted to hold a 323 00:17:59,720 --> 00:18:02,800 Speaker 1: hearing on the government's motion to dismiss the sort of 324 00:18:02,840 --> 00:18:06,880 Speaker 1: get some more details about what happened, and General Flynn's 325 00:18:06,920 --> 00:18:10,960 Speaker 1: attorney asked the appeals Court to order him to dismiss 326 00:18:11,000 --> 00:18:14,000 Speaker 1: the case, a very unusual rare move, seeking the so 327 00:18:14,080 --> 00:18:16,800 Speaker 1: called writ of man damnis to just force the judge 328 00:18:17,160 --> 00:18:19,919 Speaker 1: to rule one way before he's ever issued a ruling. 329 00:18:21,000 --> 00:18:24,480 Speaker 1: So initially the three judge panel of the court ruled 330 00:18:24,520 --> 00:18:27,920 Speaker 1: in Flynn's favor. Ordered the judge too, said he had 331 00:18:27,960 --> 00:18:29,960 Speaker 1: to dismiss the case. He didn't have the authority to 332 00:18:30,560 --> 00:18:35,000 Speaker 1: look into the motion to dismiss, and Judge Sullivan, again 333 00:18:35,119 --> 00:18:38,720 Speaker 1: very rare, because the judge had a lawyer represent him 334 00:18:38,760 --> 00:18:41,800 Speaker 1: in this appeal, asked for an unbountrey hearing and that 335 00:18:41,960 --> 00:18:46,080 Speaker 1: is what he got, which lawyers spoke before the panel. 336 00:18:46,119 --> 00:18:49,600 Speaker 1: There was obviously the lawyer for Judge Sullivan and the 337 00:18:49,680 --> 00:18:54,040 Speaker 1: lawyer for Flynn. Was the Justice Department represented as well. Yes, 338 00:18:54,119 --> 00:18:58,280 Speaker 1: the Deputy U s Solicitor General, Jeff Wall was the president. 339 00:18:58,320 --> 00:19:01,520 Speaker 1: He was questioned by the handle, so I'm very high 340 00:19:01,560 --> 00:19:04,960 Speaker 1: ranking obviously lawyer for the government defending the government's decision 341 00:19:05,040 --> 00:19:09,640 Speaker 1: to try to dismiss this case against flynn Um after 342 00:19:09,680 --> 00:19:12,840 Speaker 1: he had already pleaded guilty. They really didn't delve too 343 00:19:12,920 --> 00:19:15,880 Speaker 1: much into the substance of the crime that he could 344 00:19:16,000 --> 00:19:19,760 Speaker 1: pretty guilty too, or his attempts to withdraw his fleet. 345 00:19:19,760 --> 00:19:22,840 Speaker 1: It was really a separation of powers issue that they 346 00:19:22,880 --> 00:19:26,880 Speaker 1: were debating about for what was essentially a four hour 347 00:19:27,040 --> 00:19:31,639 Speaker 1: hearing with no break, held over the phone and video conference. 348 00:19:31,720 --> 00:19:35,639 Speaker 1: So they really were looking into whether or not a 349 00:19:35,720 --> 00:19:40,040 Speaker 1: federal judge had any authority and if so, what kind 350 00:19:40,080 --> 00:19:44,400 Speaker 1: of authority to have any discussion or debate surrounding whether 351 00:19:44,480 --> 00:19:47,520 Speaker 1: or not to grant a motion to dismiss a criminal 352 00:19:47,560 --> 00:19:50,600 Speaker 1: case like this after it's already you know, been prosecuted. 353 00:19:50,720 --> 00:19:54,080 Speaker 1: So very unusual circumstances. So that's why there there isn't 354 00:19:54,119 --> 00:19:56,800 Speaker 1: really a lot of precedent around this. But the judge, 355 00:19:56,920 --> 00:20:01,840 Speaker 1: Sullivan's lawyer, Beck Wilkinson, a well known Washington litigator, argued 356 00:20:01,880 --> 00:20:05,320 Speaker 1: that Sullivan had every right to hold a hearing, which 357 00:20:05,320 --> 00:20:07,760 Speaker 1: is what he wants to do. Um if he wins 358 00:20:07,760 --> 00:20:10,280 Speaker 1: this appeal, he'll be able to schedule a hearing and 359 00:20:10,320 --> 00:20:13,480 Speaker 1: just ask the parties about why they want to dismiss 360 00:20:13,520 --> 00:20:18,440 Speaker 1: the case and the governments and General Flynn's attorneys say 361 00:20:18,480 --> 00:20:20,800 Speaker 1: that this is not the role of the judiciary, that 362 00:20:20,840 --> 00:20:24,959 Speaker 1: he's trying to trample on the executive branches strict authority 363 00:20:25,119 --> 00:20:29,840 Speaker 1: over this type of matter. The argument of Flynn's attorney 364 00:20:30,080 --> 00:20:34,679 Speaker 1: was that the court's role is ministerial. Explain what she 365 00:20:34,760 --> 00:20:38,359 Speaker 1: meant by that When she was asked about this, she 366 00:20:38,520 --> 00:20:42,879 Speaker 1: said that although technically the government does need leave of 367 00:20:42,960 --> 00:20:48,600 Speaker 1: court to dismiss a prosecution under these circumstances, that notwithstanding 368 00:20:48,640 --> 00:20:51,760 Speaker 1: the fact that the judge needs to sign it, that 369 00:20:51,760 --> 00:20:54,200 Speaker 1: that doesn't mean the judge gets to decide it. That 370 00:20:54,560 --> 00:20:58,000 Speaker 1: it is really just his role to a rubber stamp 371 00:20:58,280 --> 00:21:01,880 Speaker 1: emotion like this and move on. That it is purely 372 00:21:01,960 --> 00:21:04,640 Speaker 1: and strictly up to the executive branch in this case, 373 00:21:04,680 --> 00:21:08,199 Speaker 1: the Justice Department decide who to prosecute and who not to. 374 00:21:08,680 --> 00:21:12,239 Speaker 1: So it really is a very interesting matter that this 375 00:21:12,400 --> 00:21:15,119 Speaker 1: court has to decide here about what the role of 376 00:21:15,119 --> 00:21:17,680 Speaker 1: the judiciary has. So essentially you're going to have these 377 00:21:17,760 --> 00:21:20,840 Speaker 1: judges are ruling on the extent of their own sort 378 00:21:20,840 --> 00:21:23,640 Speaker 1: of authority in situations like that. The role of the judiciary. 379 00:21:23,880 --> 00:21:26,800 Speaker 1: One of the judges, Judge Griffiths said, the judge is 380 00:21:26,840 --> 00:21:31,160 Speaker 1: not simply a rubber stamp. Did all the judges agree 381 00:21:31,200 --> 00:21:34,919 Speaker 1: with that, because obviously they're at this point because the 382 00:21:34,960 --> 00:21:39,240 Speaker 1: panel ruled against the judge in this case, right, So 383 00:21:39,400 --> 00:21:42,440 Speaker 1: the three judges the panel, essentially you could look at, 384 00:21:42,560 --> 00:21:45,560 Speaker 1: you know, which presidents appointed them to the bench, and 385 00:21:45,560 --> 00:21:49,280 Speaker 1: there were few Republicans and one Democrat. So in a sense, 386 00:21:49,320 --> 00:21:51,240 Speaker 1: the Trump administration had a little bit of the upper 387 00:21:51,240 --> 00:21:54,720 Speaker 1: hand is ideologically speaking, and and so they did say 388 00:21:54,800 --> 00:21:57,240 Speaker 1: that the case needed to be dismissed. But when you 389 00:21:57,240 --> 00:22:00,320 Speaker 1: look at the full panel that heard these are arguments 390 00:22:00,359 --> 00:22:03,919 Speaker 1: on bunk, there are more judges appointed by Democrats, So 391 00:22:04,040 --> 00:22:06,400 Speaker 1: that doesn't strictly mean that they're going to decide one 392 00:22:06,400 --> 00:22:08,480 Speaker 1: way or the other. Is it's it's not possible to 393 00:22:08,520 --> 00:22:11,440 Speaker 1: really predict anything like that. But there was a lot 394 00:22:11,480 --> 00:22:15,040 Speaker 1: of skepticism about this idea that a judge in this 395 00:22:15,080 --> 00:22:19,199 Speaker 1: case doesn't have any authority to look into a motion 396 00:22:19,320 --> 00:22:22,960 Speaker 1: to dismiss. Eric tell us about some of the interesting 397 00:22:23,000 --> 00:22:26,560 Speaker 1: hypothetical some of the judges posed. A few of the 398 00:22:26,640 --> 00:22:29,760 Speaker 1: judges brought up an interesting argument though, they said that 399 00:22:30,240 --> 00:22:34,760 Speaker 1: consider this hypothetical where uh prosecutor coming in saying that 400 00:22:34,800 --> 00:22:37,560 Speaker 1: they want to dismiss a case that they have against 401 00:22:37,560 --> 00:22:40,600 Speaker 1: the defendant, and right in front of the judge, the 402 00:22:40,720 --> 00:22:44,760 Speaker 1: defendant hands over briefcase overflowing with cash to the prosecutor. 403 00:22:45,240 --> 00:22:48,359 Speaker 1: The prosecutor says, hey, judge, we want to dismiss this case. 404 00:22:48,720 --> 00:22:51,440 Speaker 1: And it sounds somewhat laughable that they really did talk 405 00:22:51,520 --> 00:22:54,680 Speaker 1: about this hypothetical quite a bit during this hearing, and 406 00:22:54,920 --> 00:22:59,120 Speaker 1: the lawyer for General Flynn and the Justice Department both 407 00:22:59,119 --> 00:23:02,560 Speaker 1: agreed even in a situation like that, the judge has 408 00:23:02,600 --> 00:23:06,760 Speaker 1: no choice but to dismiss the case. That seems like 409 00:23:06,800 --> 00:23:10,800 Speaker 1: a big ask. Well, you know, Swinn's attorney, Sidney Powell, 410 00:23:10,840 --> 00:23:13,720 Speaker 1: and the Justice Department's layer they both said in a 411 00:23:13,800 --> 00:23:16,560 Speaker 1: case like that, of course that would be wrong, and 412 00:23:16,640 --> 00:23:19,320 Speaker 1: what they should do was refer the matter to the 413 00:23:19,400 --> 00:23:23,199 Speaker 1: Justice Department for the prosecutor to be prosecuted. So not 414 00:23:23,280 --> 00:23:25,600 Speaker 1: saying that that should be legal and that a prosecutor 415 00:23:25,600 --> 00:23:28,440 Speaker 1: should get away with saying bribe, they're just saying that 416 00:23:28,560 --> 00:23:30,679 Speaker 1: they're going to have to find some other way to 417 00:23:31,040 --> 00:23:33,919 Speaker 1: punish that prosecutor, but that no matter what, they have 418 00:23:34,040 --> 00:23:37,040 Speaker 1: to dismiss the case against this defendant. Anyway, even if 419 00:23:37,080 --> 00:23:39,800 Speaker 1: it appears that the dismissal is the result of a 420 00:23:39,840 --> 00:23:43,520 Speaker 1: cash bribe, it sounds like a law school hypothetical. And 421 00:23:43,680 --> 00:23:48,560 Speaker 1: there was another hypothetical involving a non video yes, and 422 00:23:48,560 --> 00:23:51,040 Speaker 1: and actually that refers back to the hypothetical I just 423 00:23:51,119 --> 00:23:54,840 Speaker 1: mentioned it. It was two different justices sort of asked 424 00:23:55,200 --> 00:23:57,600 Speaker 1: the same hypothetical in a different way. And of course, 425 00:23:58,240 --> 00:24:00,399 Speaker 1: as you mentioned, one of the judges added little bit 426 00:24:00,400 --> 00:24:05,240 Speaker 1: of color, saying that some nuns approached the judge and said, hey, Judge, 427 00:24:05,520 --> 00:24:09,000 Speaker 1: this case you're overseeing. We have video of the prosecutor 428 00:24:09,040 --> 00:24:11,400 Speaker 1: being bribed by the descendant, you know, just to try 429 00:24:11,400 --> 00:24:13,600 Speaker 1: to give it that extra you know, are these nuns 430 00:24:13,600 --> 00:24:15,240 Speaker 1: really gonna lie to you? You need to listen to 431 00:24:15,280 --> 00:24:18,280 Speaker 1: what they have to say. So, as we said, Judge 432 00:24:18,320 --> 00:24:20,679 Speaker 1: Bullivan just wants to hold a hearing on this. He 433 00:24:20,760 --> 00:24:24,000 Speaker 1: wants to hear what happened with this case, why they 434 00:24:24,200 --> 00:24:27,000 Speaker 1: decided to dismiss it. Of course, that argument has already 435 00:24:27,000 --> 00:24:29,520 Speaker 1: been laid out quite a bit in the Justice Department's 436 00:24:29,560 --> 00:24:32,280 Speaker 1: brief um. But I don't think we've mentioned yet the 437 00:24:32,560 --> 00:24:36,600 Speaker 1: fact that Judge Sullivan appointed a friend of the court 438 00:24:36,960 --> 00:24:41,919 Speaker 1: named John Gleeson, a former judge, to argue against dismissal. 439 00:24:42,600 --> 00:24:44,680 Speaker 1: Since Flynn and the Justice Department are on the same 440 00:24:44,720 --> 00:24:46,440 Speaker 1: page here, he said, Hey, I want to hear from 441 00:24:46,480 --> 00:24:50,840 Speaker 1: someone arguing against dismissal. And that was another controversial aspect 442 00:24:51,280 --> 00:24:53,720 Speaker 1: of this case that Flynn and the Justice Department said 443 00:24:53,760 --> 00:24:57,600 Speaker 1: that Judge Bullivan went too far by appointing this amarchists, 444 00:24:57,800 --> 00:25:01,560 Speaker 1: And of course Mr Gleason and his brief against dismissal 445 00:25:02,080 --> 00:25:04,600 Speaker 1: said that the dismissal of the case was a corrupt 446 00:25:04,640 --> 00:25:09,119 Speaker 1: attempt to help an ally of President Trump. So you know, 447 00:25:09,200 --> 00:25:13,840 Speaker 1: clearly this Flynn, of this hypothetical of of the bribe 448 00:25:13,920 --> 00:25:16,959 Speaker 1: and whatnot is isn't too too far off. No one 449 00:25:17,040 --> 00:25:19,560 Speaker 1: is a leeging there was any bribery here. But they 450 00:25:19,600 --> 00:25:22,040 Speaker 1: do say that this case is being dropped as a 451 00:25:22,080 --> 00:25:27,280 Speaker 1: favor to President Trump. The government lawyer said that Judge 452 00:25:27,280 --> 00:25:31,320 Speaker 1: Sullivan's lawyer was sort of walking back her argument. Are 453 00:25:31,400 --> 00:25:34,560 Speaker 1: they walking back the argument because it went from you know, 454 00:25:34,560 --> 00:25:36,520 Speaker 1: we're going to have a hearing and do all this 455 00:25:36,920 --> 00:25:40,800 Speaker 1: too well, I at least get to review this. Yeah, 456 00:25:40,960 --> 00:25:43,960 Speaker 1: you know that I noticed that as well. Um, And 457 00:25:44,040 --> 00:25:49,359 Speaker 1: that is because that's Wilkinson, Judge Sullivan's attorney early on 458 00:25:49,480 --> 00:25:53,240 Speaker 1: really argued that because of this amigates group that we 459 00:25:53,400 --> 00:25:55,439 Speaker 1: mentioned this friend of the court who said that this 460 00:25:55,600 --> 00:26:00,119 Speaker 1: dispissal was a scam, that the idea was that they 461 00:26:00,160 --> 00:26:03,119 Speaker 1: should really dig into it and investigate what happened. So 462 00:26:03,200 --> 00:26:05,879 Speaker 1: that was sort of what the Justice Department and Flynn 463 00:26:05,880 --> 00:26:08,000 Speaker 1: were saying. That is way too far for a judge 464 00:26:08,000 --> 00:26:12,159 Speaker 1: to essentially be investigating what the Justice Department is doing. 465 00:26:12,480 --> 00:26:16,919 Speaker 1: So at the hearing yesterday, Soldion's lawyer did sort of 466 00:26:16,960 --> 00:26:19,360 Speaker 1: walk that back, and they saying, Hey, all we want 467 00:26:19,400 --> 00:26:22,760 Speaker 1: to do is hold a hearing, and so she explicitly 468 00:26:22,760 --> 00:26:25,040 Speaker 1: said there's not going to be fact finding at this 469 00:26:25,160 --> 00:26:28,280 Speaker 1: point anyway, that they're not necessarily even going to call witnesses. 470 00:26:28,760 --> 00:26:31,600 Speaker 1: Early on, and as this dispute was evolving that you know, 471 00:26:31,720 --> 00:26:34,920 Speaker 1: there were even suggestions that Attorney General William Barrow could 472 00:26:34,960 --> 00:26:37,840 Speaker 1: be called to testify about, you know, what role he 473 00:26:37,960 --> 00:26:41,720 Speaker 1: played in dismissing the case against an ally of his box. 474 00:26:41,920 --> 00:26:44,000 Speaker 1: So there were a lot of questions about how far 475 00:26:44,119 --> 00:26:47,920 Speaker 1: that judge's investigation might go. And uh, Beth Wilkinson really 476 00:26:47,920 --> 00:26:50,119 Speaker 1: went on her way yesterday to say hey, it's just 477 00:26:50,160 --> 00:26:52,480 Speaker 1: gonna be a hearing, but not saying that's all it 478 00:26:52,480 --> 00:26:55,000 Speaker 1: would be, not saying that it couldn't lead to something else. 479 00:26:55,640 --> 00:26:58,960 Speaker 1: But the government's lawyer, Mr. Wall did pick up on 480 00:26:59,040 --> 00:27:01,720 Speaker 1: that and said, you know, you're trying to walk this back. 481 00:27:01,760 --> 00:27:05,399 Speaker 1: He said that tepid defense gives away the game. So 482 00:27:06,280 --> 00:27:08,720 Speaker 1: you've listened to a lot of these arguments, what was 483 00:27:08,760 --> 00:27:13,280 Speaker 1: your feeling about how the majority of the judges might rule. 484 00:27:13,640 --> 00:27:16,240 Speaker 1: Of course, you know, it's impossible to really know, but 485 00:27:16,640 --> 00:27:19,840 Speaker 1: just based on the some of these questions, especially the 486 00:27:19,920 --> 00:27:23,719 Speaker 1: hypothetical that we discussed about the nuns, and you know 487 00:27:23,800 --> 00:27:26,720 Speaker 1: that having a video tape of one judge described it 488 00:27:26,760 --> 00:27:30,480 Speaker 1: as a briefcase overflowing with cash being handed to the 489 00:27:30,520 --> 00:27:33,800 Speaker 1: prosecutor in front of the judge. There seemed to be 490 00:27:34,040 --> 00:27:36,240 Speaker 1: a lot of focus on this idea that no matter 491 00:27:36,440 --> 00:27:40,040 Speaker 1: what a judge witnesses, he or she has no choice 492 00:27:40,080 --> 00:27:43,560 Speaker 1: but to just rubber stamp a dismissal like this. Flim's 493 00:27:43,760 --> 00:27:47,160 Speaker 1: attorney and the Justice form of lawyers they post said, yes, 494 00:27:47,280 --> 00:27:49,600 Speaker 1: that would be wrong. A bribe would be wrong, but 495 00:27:49,720 --> 00:27:53,200 Speaker 1: you can handle a corrupt prosecutor in a separate case. 496 00:27:53,480 --> 00:27:56,240 Speaker 1: But I'm not sure how that might fly with these judges, 497 00:27:56,240 --> 00:28:01,520 Speaker 1: because once a defendant successfully bribed a prosecutor, they're now 498 00:28:01,560 --> 00:28:04,680 Speaker 1: off the hook, right, They've now been free that dismissal 499 00:28:05,200 --> 00:28:07,720 Speaker 1: is done. So it's sort of like a permanent benefit 500 00:28:07,800 --> 00:28:11,040 Speaker 1: to this despendant, regardless of whatever happens to the prosecutor 501 00:28:11,080 --> 00:28:13,760 Speaker 1: down the road. And of course who's going to prosecute 502 00:28:13,760 --> 00:28:17,920 Speaker 1: the prosecutor but the Justice Department, which theoretically who knows 503 00:28:17,960 --> 00:28:20,720 Speaker 1: how far up you know the line this alleged, hypothetical 504 00:28:20,720 --> 00:28:24,800 Speaker 1: bribery could go. So and this all could be moved 505 00:28:24,840 --> 00:28:29,200 Speaker 1: because even if Judge Sullivan did deny dismissal of the case, 506 00:28:29,560 --> 00:28:33,520 Speaker 1: Flynn would still have an opportunity to appeal. So he 507 00:28:33,600 --> 00:28:35,960 Speaker 1: hasn't even ruled yet. You know, this is all about 508 00:28:36,000 --> 00:28:38,200 Speaker 1: whether or not the judge can hold a hearing and 509 00:28:38,240 --> 00:28:41,960 Speaker 1: decide for himself whether to grant dismissal. But they still 510 00:28:41,960 --> 00:28:45,280 Speaker 1: have a whole appeal process ahead of them, um, if 511 00:28:45,400 --> 00:28:48,360 Speaker 1: Flynn decides to appeal, So this is not the end 512 00:28:48,360 --> 00:28:50,680 Speaker 1: of the road for Flynn no matter what. This is 513 00:28:50,720 --> 00:28:53,720 Speaker 1: just about whether or not. And in the last few 514 00:28:54,080 --> 00:28:59,480 Speaker 1: Ombank panels, the ruling did come down to democratic appointed 515 00:28:59,560 --> 00:29:03,840 Speaker 1: judge versus Republican appointed judges. Didn't it, It has, and 516 00:29:03,880 --> 00:29:07,200 Speaker 1: I think that that sort of speaks to the polarization 517 00:29:07,360 --> 00:29:10,040 Speaker 1: of you know, sort of every aspect of the government. 518 00:29:10,080 --> 00:29:14,560 Speaker 1: It's steeped into the judiciary potentially. You've heard a lot 519 00:29:14,600 --> 00:29:17,680 Speaker 1: of judges and lawyers for the Trump administration argue that 520 00:29:17,720 --> 00:29:22,040 Speaker 1: this type of politicization is damaging to the judiciary, but 521 00:29:22,120 --> 00:29:24,480 Speaker 1: I think that perhaps they see it as their defending 522 00:29:24,600 --> 00:29:26,840 Speaker 1: the judiciary. You know, there are a lot of very 523 00:29:26,920 --> 00:29:30,480 Speaker 1: consequential cases obviously that we've seen in the last few 524 00:29:30,560 --> 00:29:33,880 Speaker 1: years that really cuts the core of the separation of 525 00:29:33,920 --> 00:29:37,800 Speaker 1: powers and presidential authority. So there's no small matter. And 526 00:29:38,120 --> 00:29:40,520 Speaker 1: if judges were to simply, I guess, to use the 527 00:29:40,520 --> 00:29:43,480 Speaker 1: phrasing and rubber stamp everything that came before them, then 528 00:29:43,600 --> 00:29:47,200 Speaker 1: essentially there would be no debate over what in the 529 00:29:47,240 --> 00:29:50,840 Speaker 1: administration might be doing. So I think it just happens 530 00:29:50,880 --> 00:29:53,920 Speaker 1: that this administration is perhaps making decisions to carry out 531 00:29:53,960 --> 00:29:56,640 Speaker 1: policies that are triggering a lot of litigation, and a 532 00:29:56,720 --> 00:30:00,360 Speaker 1: lot of it is very politicals that's Bloomberg Lettal reporter 533 00:30:00,520 --> 00:30:02,320 Speaker 1: Eric Larson, this is Bloomberg