Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio.
Speaker 1: With unprecedented mail in voting expected because of the coronavirus pandemic,
Speaker 1: many state officials, concerned about slower than usual mail delivery
Speaker 1: are extending mail in ballot deadlines and making backup plans
Speaker 1: to smooth early voting in the weeks before the November election,
Speaker 1: but experts warned that tens of thousands of ballots might
Speaker 1: still be thrown out. Joining me is election law expert
Speaker 1: Richard Brofald, a professor at Columbia Law School, which I
Speaker 1: want to start by getting your take on the legitimacy
Speaker 1: of President Trump's claims that voting absentee by mail is okay,
Speaker 1: but voting by mail is not and is going to
Speaker 1: lead to huge fraud. The President is trying to make
Speaker 1: a distinction between two different things which are not different
Speaker 1: from each other, even the terminology is blurred. The President
Speaker 1: has almost always voted, as has most of his cabinet
Speaker 1: and his family, and I think he's thing about and
Speaker 1: it's the same kind of absentee ballot, But in his
Speaker 1: case it was you had a justification for voting absentee
Speaker 1: and that you were going to be out of a jurisdiction,
Speaker 1: maybe on business, or you were sick, you couldn't get
Speaker 1: to the volt. We've had that kind of mechanism in
Speaker 1: place for a century. I mean, it really goes back
Speaker 1: to the Second World War. In modern times, many states
Speaker 1: have moved to make it very easy for people to
Speaker 1: get absentee ballot so called no excuse absentee voting, which
Speaker 1: is now more than half the state and the handful
Speaker 1: of states I think we're now up to five have
Speaker 1: said we're just gonna nail use the ballot though you
Speaker 1: don't even have to go through the trouble of asking
Speaker 1: for absentee votes. We're gonna do the entire election by
Speaker 1: mail and have a very very limited exception for people
Speaker 1: who are unable to use the mount so that a
Speaker 1: handful of states at must in the West, have been
Speaker 1: all mail in voting. They don't even use the term absentee,
Speaker 1: but it's the same kind of ballot and the same
Speaker 1: mechanism as would be the case in old style absentee voting.
Speaker 1: A voter at home fills out a ballot, twust it
Speaker 1: in an envelope, seals the envelope usually then put another
Speaker 1: envelope over it signs their name. Some states have other
Speaker 1: requirements by witnessing and mail him in. In some places
Speaker 1: you can bring it in. In some places they have
Speaker 1: so called drop boxes where you can drop it off
Speaker 1: if you don't trust the postal service. But it's that's
Speaker 1: literally the same ballot, whether or not it is one
Speaker 1: that you requested because you were going to be out
Speaker 1: of town that day, or it's one that the state
Speaker 1: has mail to you. So this is a long way
Speaker 1: of saying that this president is drawing a distinction where
Speaker 1: there isn't one. President Trump has also been attacking the
Speaker 1: post Office for quite some time, and he's now put
Speaker 1: a new postmaster General in who has barred over time
Speaker 1: and put in other changes that some of the postal
Speaker 1: workers are complaining about. What can be done to make
Speaker 1: sure that the post Office can deliver the mail on
Speaker 1: time come election day. That's a very tough question. It
Speaker 1: is one of the things the Democrats have been fighting
Speaker 1: about in Washington. In their bill, their COVID release bill,
Speaker 1: which they the path House in May, they put an
Speaker 1: additional funding for the service to help the Postal Service
Speaker 1: handle the additional ballots. There are going to be far
Speaker 1: more mailed in ballots this time around than in any
Speaker 1: other election. In maybe of the public voted by mail,
Speaker 1: that's likely to be much higher this time. So they
Speaker 1: specifically put in money to help the postal service and
Speaker 1: loads the search. So far, one of the reasons I
Speaker 1: think the Republicans have been resisting the Democratic bill is
Speaker 1: they don't want to put in this extra money for
Speaker 1: the postal service. So one way to deal with this
Speaker 1: would be to give the post Office extra money. Another
Speaker 1: redly some out pressure the Postmaster General to change these
Speaker 1: new work rules that he's put in place that you've
Speaker 1: just mentioned, barring overtime traditional rule the post Office as
Speaker 1: they try to get all the mails that they have
Speaker 1: that they delivered. He's basically saying, if there's mail that's undelivered,
Speaker 1: your mail carry's and delivered at the end of the
Speaker 1: official work day, come back, don't deliver it, wait till tomorrow. Well,
Speaker 1: this could be a real problem, um. And really, when
Speaker 1: we're talking about mail and ballots, we're really talking about
Speaker 1: two steps. Mailing the ballot to the voter so the
Speaker 1: voter can fill it out, and then the voter mailing
Speaker 1: it back to the local Board of Elections, so it
Speaker 1: really is going to be going through the mail twice
Speaker 1: and so any problems with delay gets doubled. So what
Speaker 1: else can be done? While one again would be to
Speaker 1: get them to change those rules, another possibility, of course,
Speaker 1: is to educate people to voting early, you know, asking
Speaker 1: for their ballots earlier, or getting their ballots and voting
Speaker 1: them early so that they give the post office more time.
Speaker 1: Another possibility is in some jurisdictions, the local election board
Speaker 1: has set up a quote drop boxes sort of secure
Speaker 1: boxes where the voter can drop the ballot off. Voter
Speaker 1: doesn't have to go into the polling place, but the
Speaker 1: ballot could be dropped off, you know, maybe in a
Speaker 1: government building, maybe at a shopping mall, maybe to school. Uh,
Speaker 1: and so the ballot could be returned without using the
Speaker 1: postal service. Finally, and this has been one of the
Speaker 1: more contested issues, is the question of when does the
Speaker 1: ballot have to be returned. Some jurisdictions require that the
Speaker 1: ballot d in the local Board of Elections by end
Speaker 1: of election day, but other jurisdictions whom I mean really
Speaker 1: means states say it's okay for the ballot to come
Speaker 1: in after election day, so long as it's postmarked by
Speaker 1: election day. So as long as you get the ballot
Speaker 1: into the system by election day, the fact that it
Speaker 1: might take the post office five days to bring it
Speaker 1: in instead of two, that shouldn't count against you. And
Speaker 1: a number of states are switching to that or being
Speaker 1: asked to switch to that now. And that last thing,
Speaker 1: and I understand see that at least one state is
Speaker 1: talking about doing this is putting first class post on
Speaker 1: the ballot. Right now, it's being treated as both mail.
Speaker 1: But if states want to pay more money on it's
Speaker 1: a shame that they have so many other expenses, they'd
Speaker 1: be forced to do this. They could use first class
Speaker 1: stamps and that might speed the return of the ballots
Speaker 1: when they get back. So in missing a deadline was
Speaker 1: the second biggest reason a mail in ballot was rejected.
Speaker 1: Are any states now moving to try to extend the
Speaker 1: time that a ballot can be received, and can they
Speaker 1: be done by executive order? That's a good question. I
Speaker 1: believe some states have already done that, um and I
Speaker 1: believe it could be done by executive order. Certainly a
Speaker 1: number of states did that, I think in the context
Speaker 1: of the primary election and I think it could be
Speaker 1: done by executive or or by regulation of the executive
Speaker 1: order usually come from governor, could be by regulation or
Speaker 1: administrative rule of the state Board of Election the chief
Speaker 1: elections officer. Again, whether that can be done UH through
Speaker 1: administration might depend on the law of the individual state.
Speaker 1: Have changes by the executive survived judicial challenges. I think
Speaker 1: where the courts have been more active is in situations where,
Speaker 1: like the Supreme Court has been resisting a lot of changes,
Speaker 1: is when a lower court order is the change UH.
Speaker 1: And there I think of the same Preme Court has
Speaker 1: on repeated occasions this year so far undone those changes
Speaker 1: designed to make it easier to get things on the
Speaker 1: ballot or the vote. But I think when the executive,
Speaker 1: whether it's the governor or the Secretary of the state,
Speaker 1: Secretary of State UM, has agreed to the change UM.
Speaker 1: I don't think there have been court interventions that have
Speaker 1: stopped that. There have been so many discus in so
Speaker 1: many cases and less really going back to about March
Speaker 1: March April during the primaries that I can't say out
Speaker 1: of court has never stopped that. But I think for
Speaker 1: the most part, if the state government is agreeable to
Speaker 1: doing this. The courts have not stepped in. I want
Speaker 1: to just go over some of the Trump challenges trump lawsuit,
Speaker 1: and you know, you mentioned ballot drop boxes and I
Speaker 1: thought that sounded like a great idea. But the Trump
Speaker 1: campaign is suing Pennsylvania over there drop boxes. How strong
Speaker 1: is their case? Um, I think there's a lot of
Speaker 1: their argument is basically, uh, that this is less secure. Now,
Speaker 1: my sense is that the question of balancing access and
Speaker 1: security is one we normally leave to the states and
Speaker 1: local governments. Uh, that's a fight about voter ID. Voter
Speaker 1: idea was supposed to be, you know, prevent against fraud.
Speaker 1: On the other hand, and makes um uh it is
Speaker 1: harder for people to vote U. The courts have generally
Speaker 1: left that ballots to be set by stay in the
Speaker 1: local administrators. So you might think that he would you
Speaker 1: would have the same rule with respect to the use
Speaker 1: of drop boxes. I could see being the jurisdictions being
Speaker 1: pushed to make sure to show that they made them secure.
Speaker 1: I think that's a legitimate concern, is whether or not
Speaker 1: all these boxes are tamper proof, whether I don't know
Speaker 1: there are cameras on them, etcetera. Some jurisdictions have moved
Speaker 1: towards having kind of bar codes on the ballots to
Speaker 1: make them traceable again anti fraud. But I think the
Speaker 1: idea that UM, I think they ought to have a
Speaker 1: hard time saying that states and local governments can't innovate
Speaker 1: new mechanisms that make it easier to vote, particularly in
Speaker 1: the pandemic context. I mean, there is a public health
Speaker 1: backdrop to all of this, which is that there is
Speaker 1: a there's likely to be I mean, we're probably still
Speaker 1: going to be in the middle of COVID in November,
Speaker 1: and there's there's a heightened public health concern. We have
Speaker 1: large numbers of people showing up in polling places. Trump's
Speaker 1: campaign is suing Nevada. Explain what that lawsuits about. Again,
Speaker 1: it's a claim that by making it easier for people
Speaker 1: to get absentee ballots by the state sending absentee ballots,
Speaker 1: I have a state liberalizing the deadline for submitting the
Speaker 1: absentee ballots, that that is somehow the violation of the
Speaker 1: rights to an election with integrity. One particular issue they've
Speaker 1: raised is again it's really pretty silly, UM, is that UM,
Speaker 1: if a ballot is received after election day, but counted.
Speaker 1: It violates the congressional law that sets the specific day
Speaker 1: this year, November three, as election day. UM. What ludicrous
Speaker 1: about that? Is? UM? What the what? The state pre
Speaker 1: a and says it's long it's postmarked election on election
Speaker 1: day UM or earlier. UM, doesn't matter when it's received. Well,
Speaker 1: submitting the ballot into the ballot, into the mailboxer in
Speaker 1: the post into the post office and getting a POSTMONE
Speaker 1: that's the equivalent of voting, UM voting in a polling place.
Speaker 1: So Congress says you have to vote by election day. Well,
Speaker 1: the votes have already been cast. This is a problem
Speaker 1: of receiving them and absentee ballots. You know, we've had
Speaker 1: ballasts come in from overseas, from from soldiers UH and
Speaker 1: the armed forces overseas. They come there as they can
Speaker 1: come in past election day, and they're still accounted. It's
Speaker 1: kind of a silly argument that says that if a
Speaker 1: ballot has been cast before election day but is received
Speaker 1: after election day, because that's the way the postal service works,
Speaker 1: it's somehow is inconsistent with their being one election day. Obviously,
Speaker 1: the Trump campaign is trying to curtail mail in voting
Speaker 1: or any kind of voting besides in person voting every
Speaker 1: way they can. Is there any proof that Democrats vote
Speaker 1: by mail more or will vote by mail more than
Speaker 1: Republicans historically until this all became partisan political in the
Speaker 1: current election climate, I think there was some evidence that
Speaker 1: Republicans voted by mail more than Democrats. It was something
Speaker 1: that older voters particularly liked, and rural voters from what
Speaker 1: was actually more difficult to get to the polling place.
Speaker 1: I think. I think overall that was not a big
Speaker 1: difference between Republicans and Democrats in terms of their use
Speaker 1: by mail. Platific extent there was, I think it was
Speaker 1: slightly more Republican. And there's also evidence that many voters
Speaker 1: of color preferred to vote in person because suspicions about
Speaker 1: the postal service. They having thought so hard to get
Speaker 1: the ballot, there's a certain degree of satisfaction actually physically
Speaker 1: voting at a polling place. So I think there is
Speaker 1: some evidence that voters of color, particularly African Americans, were
Speaker 1: somewhat skeptical. I mean, again, this is all the margins.
Speaker 1: I think for the most part there was not big differences,
Speaker 1: but to the extent they were, my sense was that
Speaker 1: by mail was probably more commonly used by Republicans and
Speaker 1: Democrats until this all became partisan comment. Let's talk a
Speaker 1: little bit about the Supreme Court, because you mentioned that
Speaker 1: until today the Supreme Court seemed to be undoing all
Speaker 1: the efforts to ease access to the ballot during the
Speaker 1: coronavirus pandemic. Just today, the Supreme Court declined to block
Speaker 1: Rhode Island from proceeding with plans to relax to witness
Speaker 1: or notary requirement for absentee ballots in upcoming elections, rejecting
Speaker 1: a Republican challenge. Tell us about that case. So I
Speaker 1: do point out the Supreme Court is now rendering about
Speaker 1: a half dozen decisions, uh, typically without all of them
Speaker 1: I think, without floral argument or or generally on the papers,
Speaker 1: UM dealing with decisions by lower federal court in one
Speaker 1: way or another. UM making it easier to get a
Speaker 1: petition on the ballot for a referendum, or easier to
Speaker 1: vote in light of of conditions created by the pandemic.
Speaker 1: For example, UM allow allowing the fear of COVID and
Speaker 1: possibly getting COVID accountans and illness for purposes of an
Speaker 1: excuse for an absentee vote, or with respect to petitions
Speaker 1: to get ballot propositions referenda on the ballot, reducing the
Speaker 1: number of signatures required. Typically in order to get a
Speaker 1: question on the ballot, you have you need a certain
Speaker 1: number of signatures. People collect them by going around shopping
Speaker 1: malls and downtowns, and and with with with all the
Speaker 1: shutdowns on the stay at home rules, it became almost
Speaker 1: impossible to collect those signatures. So in a number of
Speaker 1: lawsuits various federal judges around the country, and in different
Speaker 1: cases not always the number of them. Basically, UH said
Speaker 1: that under current circumstances, the law, which was normally a
Speaker 1: valid competitutional law, needs to be relaxed. They cut the
Speaker 1: number of signatures they send in a number of the
Speaker 1: amount of time to get something on the ballot. They
Speaker 1: loosen what counts to an excuse. UH, they might loosen
Speaker 1: the witnessing requirement of your signature for an absencee ballot center.
Speaker 1: They're in number of cases like this UM until today,
Speaker 1: the Supreme Court has consistently struck those down under something
Speaker 1: rules only own as the first cell principle, which is
Speaker 1: that court shouldn't be changing the rules that govern an election. UH.
Speaker 1: An effect on the eve of the election. In many
Speaker 1: of these cases involved primaries, the primary season, or approaching
Speaker 1: deadlines for getting petitions on the ballot. But the sense
Speaker 1: is that when courts changed the rules for an election, UM,
Speaker 1: it could cause confusion, It could be seen as having
Speaker 1: partisan consequence. UM. The court is not taken into account
Speaker 1: the idea that the rules have really been changed by
Speaker 1: the pandemic itself, and that what the courts they're trying
Speaker 1: to do is revised the rules in light of the
Speaker 1: change circumstances presented the pandemic. But the court I didn't
Speaker 1: get they've often been divided, UM, has not recognized that
Speaker 1: today's case was different. This case came out of Rhode Island.
Speaker 1: As you mentioned, UM, there was a consent decree in
Speaker 1: which the state agreed uh not to enforce the to
Speaker 1: witness requirement for somebody to be witnessing. Somebody witnessing and
Speaker 1: absentee voters signing the back of the envelope that's really
Speaker 1: them uh submitting the vote in part because if ar
Speaker 1: under locked out, it maybe hard to get witnesses. UM. Uh.
Speaker 1: This time, of course, that it was different because the
Speaker 1: state had agreed to this. This was a consent to Cree,
Speaker 1: a loss it brought against the state, but the state
Speaker 1: ultimately agreed with the change, so the state was not
Speaker 1: challenging the change. Only the Republican National Committee and the
Speaker 1: Court six three concluded that if the state was okay
Speaker 1: with this change, there was no reason for the court
Speaker 1: to step in. This is what you've seen this pattern.
Speaker 1: Does it tell us what will happen in cases coming
Speaker 1: up where state officials make changes, for example, to either
Speaker 1: the deadline for mail in ballots or the way they're
Speaker 1: handled court. It's always like reading the tea leaves. You
Speaker 1: can never but it is a hopeful sign that if
Speaker 1: the decision comes from authorized state decision makers and he
Speaker 1: is consistent with state rules and procedures for doing state business,
Speaker 1: that they would not step it and that they would
Speaker 1: accept the change. Thanks rich that's Richard Brifault of Columbia
Speaker 1: Law School. Judges on an ombank panel of the DC
Speaker 1: Federal Appeals Court grilled former National Security Advisor Michael Flynn's
Speaker 1: lawyer about his claim that a trial court judge has
Speaker 1: no choice but to grant the Justice Department surprise motion
Speaker 1: to dismiss the criminal case against him. Will the full
Speaker 1: court reverse the decision of the three judge panel who
Speaker 1: gave a victory to Flynn and the government. Joining me
Speaker 1: is Bloomberg Legal reporter Eric Lawson, who has been covering
Speaker 1: the Flynn case. Let's start with the long background of
Speaker 1: this case. How do we get to the point where
Speaker 1: there's an ombank panel of judges. Well, it does stretch
Speaker 1: back to charges that Michael Flynn pleaded guilty too. He
Speaker 1: pleaded guilty to lying to two FBI agents back in
Speaker 1: the very early days of the Russia investigation. Uh So,
Speaker 1: he was charged with that they had him on tape
Speaker 1: discussing certain matters with the Russian ambassador to the US.
Speaker 1: He did not tell the truth about those conversations to
Speaker 1: the FBI agents he was charged. He eventually pleaded guilty,
Speaker 1: but then more recently, back in January, he decided to
Speaker 1: withdraw this fleet and ultimately, around the same time the
Speaker 1: President Trump was regularly criticizing this case against one of
Speaker 1: his longtime allies, the Justice Department switched course, abandoned the case,
Speaker 1: citing new evidence, and decided to seek dismissal. Now the
Speaker 1: judge overseeing the case and then Sullivan did not immediately.
Speaker 1: Rubbert Sampas and signaled that he wanted to hold a
Speaker 1: hearing on the government's motion to dismiss the sort of
Speaker 1: get some more details about what happened, and General Flynn's
Speaker 1: attorney asked the appeals Court to order him to dismiss
Speaker 1: the case, a very unusual rare move, seeking the so
Speaker 1: called writ of man damnis to just force the judge
Speaker 1: to rule one way before he's ever issued a ruling.
Speaker 1: So initially the three judge panel of the court ruled
Speaker 1: in Flynn's favor. Ordered the judge too, said he had
Speaker 1: to dismiss the case. He didn't have the authority to
Speaker 1: look into the motion to dismiss, and Judge Sullivan, again
Speaker 1: very rare, because the judge had a lawyer represent him
Speaker 1: in this appeal, asked for an unbountrey hearing and that
Speaker 1: is what he got, which lawyers spoke before the panel.
Speaker 1: There was obviously the lawyer for Judge Sullivan and the
Speaker 1: lawyer for Flynn. Was the Justice Department represented as well. Yes,
Speaker 1: the Deputy U s Solicitor General, Jeff Wall was the president.
Speaker 1: He was questioned by the handle, so I'm very high
Speaker 1: ranking obviously lawyer for the government defending the government's decision
Speaker 1: to try to dismiss this case against flynn Um after
Speaker 1: he had already pleaded guilty. They really didn't delve too
Speaker 1: much into the substance of the crime that he could
Speaker 1: pretty guilty too, or his attempts to withdraw his fleet.
Speaker 1: It was really a separation of powers issue that they
Speaker 1: were debating about for what was essentially a four hour
Speaker 1: hearing with no break, held over the phone and video conference.
Speaker 1: So they really were looking into whether or not a
Speaker 1: federal judge had any authority and if so, what kind
Speaker 1: of authority to have any discussion or debate surrounding whether
Speaker 1: or not to grant a motion to dismiss a criminal
Speaker 1: case like this after it's already you know, been prosecuted.
Speaker 1: So very unusual circumstances. So that's why there there isn't
Speaker 1: really a lot of precedent around this. But the judge,
Speaker 1: Sullivan's lawyer, Beck Wilkinson, a well known Washington litigator, argued
Speaker 1: that Sullivan had every right to hold a hearing, which
Speaker 1: is what he wants to do. Um if he wins
Speaker 1: this appeal, he'll be able to schedule a hearing and
Speaker 1: just ask the parties about why they want to dismiss
Speaker 1: the case and the governments and General Flynn's attorneys say
Speaker 1: that this is not the role of the judiciary, that
Speaker 1: he's trying to trample on the executive branches strict authority
Speaker 1: over this type of matter. The argument of Flynn's attorney
Speaker 1: was that the court's role is ministerial. Explain what she
Speaker 1: meant by that When she was asked about this, she
Speaker 1: said that although technically the government does need leave of
Speaker 1: court to dismiss a prosecution under these circumstances, that notwithstanding
Speaker 1: the fact that the judge needs to sign it, that
Speaker 1: that doesn't mean the judge gets to decide it. That
Speaker 1: it is really just his role to a rubber stamp
Speaker 1: emotion like this and move on. That it is purely
Speaker 1: and strictly up to the executive branch in this case,
Speaker 1: the Justice Department decide who to prosecute and who not to.
Speaker 1: So it really is a very interesting matter that this
Speaker 1: court has to decide here about what the role of
Speaker 1: the judiciary has. So essentially you're going to have these
Speaker 1: judges are ruling on the extent of their own sort
Speaker 1: of authority in situations like that. The role of the judiciary.
Speaker 1: One of the judges, Judge Griffiths said, the judge is
Speaker 1: not simply a rubber stamp. Did all the judges agree
Speaker 1: with that, because obviously they're at this point because the
Speaker 1: panel ruled against the judge in this case, right, So
Speaker 1: the three judges the panel, essentially you could look at,
Speaker 1: you know, which presidents appointed them to the bench, and
Speaker 1: there were few Republicans and one Democrat. So in a sense,
Speaker 1: the Trump administration had a little bit of the upper
Speaker 1: hand is ideologically speaking, and and so they did say
Speaker 1: that the case needed to be dismissed. But when you
Speaker 1: look at the full panel that heard these are arguments
Speaker 1: on bunk, there are more judges appointed by Democrats, So
Speaker 1: that doesn't strictly mean that they're going to decide one
Speaker 1: way or the other. Is it's it's not possible to
Speaker 1: really predict anything like that. But there was a lot
Speaker 1: of skepticism about this idea that a judge in this
Speaker 1: case doesn't have any authority to look into a motion
Speaker 1: to dismiss. Eric tell us about some of the interesting
Speaker 1: hypothetical some of the judges posed. A few of the
Speaker 1: judges brought up an interesting argument though, they said that
Speaker 1: consider this hypothetical where uh prosecutor coming in saying that
Speaker 1: they want to dismiss a case that they have against
Speaker 1: the defendant, and right in front of the judge, the
Speaker 1: defendant hands over briefcase overflowing with cash to the prosecutor.
Speaker 1: The prosecutor says, hey, judge, we want to dismiss this case.
Speaker 1: And it sounds somewhat laughable that they really did talk
Speaker 1: about this hypothetical quite a bit during this hearing, and
Speaker 1: the lawyer for General Flynn and the Justice Department both
Speaker 1: agreed even in a situation like that, the judge has
Speaker 1: no choice but to dismiss the case. That seems like
Speaker 1: a big ask. Well, you know, Swinn's attorney, Sidney Powell,
Speaker 1: and the Justice Department's layer they both said in a
Speaker 1: case like that, of course that would be wrong, and
Speaker 1: what they should do was refer the matter to the
Speaker 1: Justice Department for the prosecutor to be prosecuted. So not
Speaker 1: saying that that should be legal and that a prosecutor
Speaker 1: should get away with saying bribe, they're just saying that
Speaker 1: they're going to have to find some other way to
Speaker 1: punish that prosecutor, but that no matter what, they have
Speaker 1: to dismiss the case against this defendant. Anyway, even if
Speaker 1: it appears that the dismissal is the result of a
Speaker 1: cash bribe, it sounds like a law school hypothetical. And
Speaker 1: there was another hypothetical involving a non video yes, and
Speaker 1: and actually that refers back to the hypothetical I just
Speaker 1: mentioned it. It was two different justices sort of asked
Speaker 1: the same hypothetical in a different way. And of course,
Speaker 1: as you mentioned, one of the judges added little bit
Speaker 1: of color, saying that some nuns approached the judge and said, hey, Judge,
Speaker 1: this case you're overseeing. We have video of the prosecutor
Speaker 1: being bribed by the descendant, you know, just to try
Speaker 1: to give it that extra you know, are these nuns
Speaker 1: really gonna lie to you? You need to listen to
Speaker 1: what they have to say. So, as we said, Judge
Speaker 1: Bullivan just wants to hold a hearing on this. He
Speaker 1: wants to hear what happened with this case, why they
Speaker 1: decided to dismiss it. Of course, that argument has already
Speaker 1: been laid out quite a bit in the Justice Department's
Speaker 1: brief um. But I don't think we've mentioned yet the
Speaker 1: fact that Judge Sullivan appointed a friend of the court
Speaker 1: named John Gleeson, a former judge, to argue against dismissal.
Speaker 1: Since Flynn and the Justice Department are on the same
Speaker 1: page here, he said, Hey, I want to hear from
Speaker 1: someone arguing against dismissal. And that was another controversial aspect
Speaker 1: of this case that Flynn and the Justice Department said
Speaker 1: that Judge Bullivan went too far by appointing this amarchists,
Speaker 1: And of course Mr Gleason and his brief against dismissal
Speaker 1: said that the dismissal of the case was a corrupt
Speaker 1: attempt to help an ally of President Trump. So you know,
Speaker 1: clearly this Flynn, of this hypothetical of of the bribe
Speaker 1: and whatnot is isn't too too far off. No one
Speaker 1: is a leeging there was any bribery here. But they
Speaker 1: do say that this case is being dropped as a
Speaker 1: favor to President Trump. The government lawyer said that Judge
Speaker 1: Sullivan's lawyer was sort of walking back her argument. Are
Speaker 1: they walking back the argument because it went from you know,
Speaker 1: we're going to have a hearing and do all this
Speaker 1: too well, I at least get to review this. Yeah,
Speaker 1: you know that I noticed that as well. Um, And
Speaker 1: that is because that's Wilkinson, Judge Sullivan's attorney early on
Speaker 1: really argued that because of this amigates group that we
Speaker 1: mentioned this friend of the court who said that this
Speaker 1: dispissal was a scam, that the idea was that they
Speaker 1: should really dig into it and investigate what happened. So
Speaker 1: that was sort of what the Justice Department and Flynn
Speaker 1: were saying. That is way too far for a judge
Speaker 1: to essentially be investigating what the Justice Department is doing.
Speaker 1: So at the hearing yesterday, Soldion's lawyer did sort of
Speaker 1: walk that back, and they saying, Hey, all we want
Speaker 1: to do is hold a hearing, and so she explicitly
Speaker 1: said there's not going to be fact finding at this
Speaker 1: point anyway, that they're not necessarily even going to call witnesses.
Speaker 1: Early on, and as this dispute was evolving that you know,
Speaker 1: there were even suggestions that Attorney General William Barrow could
Speaker 1: be called to testify about, you know, what role he
Speaker 1: played in dismissing the case against an ally of his box.
Speaker 1: So there were a lot of questions about how far
Speaker 1: that judge's investigation might go. And uh, Beth Wilkinson really
Speaker 1: went on her way yesterday to say hey, it's just
Speaker 1: gonna be a hearing, but not saying that's all it
Speaker 1: would be, not saying that it couldn't lead to something else.
Speaker 1: But the government's lawyer, Mr. Wall did pick up on
Speaker 1: that and said, you know, you're trying to walk this back.
Speaker 1: He said that tepid defense gives away the game. So
Speaker 1: you've listened to a lot of these arguments, what was
Speaker 1: your feeling about how the majority of the judges might rule.
Speaker 1: Of course, you know, it's impossible to really know, but
Speaker 1: just based on the some of these questions, especially the
Speaker 1: hypothetical that we discussed about the nuns, and you know
Speaker 1: that having a video tape of one judge described it
Speaker 1: as a briefcase overflowing with cash being handed to the
Speaker 1: prosecutor in front of the judge. There seemed to be
Speaker 1: a lot of focus on this idea that no matter
Speaker 1: what a judge witnesses, he or she has no choice
Speaker 1: but to just rubber stamp a dismissal like this. Flim's
Speaker 1: attorney and the Justice form of lawyers they post said, yes,
Speaker 1: that would be wrong. A bribe would be wrong, but
Speaker 1: you can handle a corrupt prosecutor in a separate case.
Speaker 1: But I'm not sure how that might fly with these judges,
Speaker 1: because once a defendant successfully bribed a prosecutor, they're now
Speaker 1: off the hook, right, They've now been free that dismissal
Speaker 1: is done. So it's sort of like a permanent benefit
Speaker 1: to this despendant, regardless of whatever happens to the prosecutor
Speaker 1: down the road. And of course who's going to prosecute
Speaker 1: the prosecutor but the Justice Department, which theoretically who knows
Speaker 1: how far up you know the line this alleged, hypothetical
Speaker 1: bribery could go. So and this all could be moved
Speaker 1: because even if Judge Sullivan did deny dismissal of the case,
Speaker 1: Flynn would still have an opportunity to appeal. So he
Speaker 1: hasn't even ruled yet. You know, this is all about
Speaker 1: whether or not the judge can hold a hearing and
Speaker 1: decide for himself whether to grant dismissal. But they still
Speaker 1: have a whole appeal process ahead of them, um, if
Speaker 1: Flynn decides to appeal, So this is not the end
Speaker 1: of the road for Flynn no matter what. This is
Speaker 1: just about whether or not. And in the last few
Speaker 1: Ombank panels, the ruling did come down to democratic appointed
Speaker 1: judge versus Republican appointed judges. Didn't it, It has, and
Speaker 1: I think that that sort of speaks to the polarization
Speaker 1: of you know, sort of every aspect of the government.
Speaker 1: It's steeped into the judiciary potentially. You've heard a lot
Speaker 1: of judges and lawyers for the Trump administration argue that
Speaker 1: this type of politicization is damaging to the judiciary, but
Speaker 1: I think that perhaps they see it as their defending
Speaker 1: the judiciary. You know, there are a lot of very
Speaker 1: consequential cases obviously that we've seen in the last few
Speaker 1: years that really cuts the core of the separation of
Speaker 1: powers and presidential authority. So there's no small matter. And
Speaker 1: if judges were to simply, I guess, to use the
Speaker 1: phrasing and rubber stamp everything that came before them, then
Speaker 1: essentially there would be no debate over what in the
Speaker 1: administration might be doing. So I think it just happens
Speaker 1: that this administration is perhaps making decisions to carry out
Speaker 1: policies that are triggering a lot of litigation, and a
Speaker 1: lot of it is very politicals that's Bloomberg Lettal reporter
Speaker 1: Eric Larson, this is Bloomberg