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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 2: So it is because of missus Wilson and so many

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Speaker 2: teachers like her, that I stand before you as Vice

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Speaker 2: President of the United States of America and that I

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Speaker 2: am running to become president of the United States of America.

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Speaker 3: It all happened rather quickly. After President Joe Biden ended

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Speaker 3: his reelection bid on Sunday. Vice President Kamala Harris sealed

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Speaker 3: her status as the presumptive Democratic presidential nominee. By Monday night,

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Speaker 3: after getting more than enough pledged delegates to cinch the nomination.

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Speaker 3: The Vice president took over Biden's campaign, which was renamed

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Speaker 3: Harris for President, and his campaign war chest of about

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Speaker 3: ninety six million dollars. Just as quickly, Republicans started a

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Speaker 3: multi pronged effort to steymy Harris. On Tuesday, Donald Trump's

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Speaker 3: presidential campaign filed a complaint with the Federal Election Commission,

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Speaker 3: claiming that the transfer of Biden's money to Harris violates

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Speaker 3: the law, and some Republicans, like House Speaker Mike Johnson,

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Speaker 3: began raising the specter of lawsuits challenging Harris's place on

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Speaker 3: the top of the ticket.

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Speaker 4: We have fifty different systems in each of the states

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Speaker 4: when it comes to presidential elections and choosing electors and

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Speaker 4: all the rest. And in some of the states there

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Speaker 4: are impediments to just switching someone out like that. Remember

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Speaker 4: that this claims to be the Party of Democracy, small

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Speaker 4: D democracy right. Fourteen million people went through the process

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Speaker 4: and chose this nominee, Joe Biden. Now a handful of

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Speaker 4: people have gotten together and decided he's no longer suitable.

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Speaker 4: That's not how this system works.

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Speaker 3: Or is it just that Johnson doesn't understand how the

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Speaker 3: system works? Joining me is elections law expert Richard Brefald,

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Speaker 3: a professor at Columbia Law School. Rich start where it

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Speaker 3: always starts, the money. Does Harris have the right to

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Speaker 3: take over the money raised by Biden's reelection campaign?

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Speaker 5: So the money is sort of in three parts, And

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Speaker 5: the only real issue was the money technically that went

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Speaker 5: to the Biden Harris campaign. So the money that goes

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Speaker 5: to the Democratic Party, of course she can use. And

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Speaker 5: I think they also had a pack going, a superpack going,

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Speaker 5: and of that, of course they can use. The issue

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Speaker 5: was the money that went to Biden Harris specifically, and

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Speaker 5: there I think it's a smaller amount, maybe like ninety million,

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Speaker 5: but I'm not sure about that. The assumption of all

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Speaker 5: the campaigns finance people I've spoken to is yes, as

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Speaker 5: long as Harris continues to be on the ticket, it's

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Speaker 5: money that she can use. The issue would have been

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Speaker 5: more if the Democrats nominated someone else, then I think

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Speaker 5: the Biden Harris committee would have had to transfer the

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Speaker 5: money to the Democratic Party, and the Democratic Party would

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Speaker 5: have the money. But as long as she's the nominee,

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Speaker 5: she is part of Biden Harris, which I think now

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Speaker 5: has already been renamed Harris. So the assumption of just

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Speaker 5: about every campaign finance lawyer I know is that, yes,

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Speaker 5: she can use it. I think the overwhelming assumption is

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Speaker 5: that the money went to her also it was going

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Speaker 5: to Biden and Harris. Harris is still running, so I

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Speaker 5: think that the vast majority of Camping c and An's

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Speaker 5: lawyers and scholars believe that it's money she can use.

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Speaker 3: Trump's presidential campaign filed a complaint with the Federal Election Commission.

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Speaker 3: It seems like a long shot, though for a couple

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Speaker 3: of reasons. Harris has sixty days to respond, and the

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Speaker 3: Federal Election Commission is known for moving at a glacial pace,

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Speaker 3: so at the worst it would just be a question

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Speaker 3: of paying fines later.

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Speaker 5: Not only it takes a long to move, but you

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Speaker 5: would need to get four votes, and there are three

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Speaker 5: Democrats who sit on the Commission. There's a six member

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Speaker 5: commission of three Democrats and the Republicans, and on most

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Speaker 5: major things they tend to vote on party mind, So

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Speaker 5: it just seems right. There's both the time that would

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Speaker 5: take and likely vote, and I think given the rules

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Speaker 5: of the election law, I think it will be very

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Speaker 5: hard for Republicans to side step the Commission and go

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Speaker 5: directly to court. Now somebody might try that, but I

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Speaker 5: do think it's kind of a lost cause. Given the

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Speaker 5: court system today. You never know one hundred percent, But

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Speaker 5: I think, as I said, the overwhelming belief is that

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Speaker 5: the money she could use and would be very unlikely

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Speaker 5: the Federal Election Commission would certainly during the course of

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Speaker 5: the campaign, but at any time come and say it

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Speaker 5: wasn't improper use.

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Speaker 3: Speaker Mike Johnson says he expects they'll be litigation, saying

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Speaker 3: there are fifty different systems and that in some states

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Speaker 3: there are impediments to swapping candidates. Could there be losses

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Speaker 3: on the basis of the switch.

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Speaker 5: It seems like a totally ridiculous argument. The party doesn't

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Speaker 5: have a candidate. The party doesn't have a candidate until

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Speaker 5: they make a nomination. Biden was never nominated. If Democratic

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Speaker 5: convention has not met, even the so called virtual role

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Speaker 5: call we're talking about hasn't happened, the Democratic Party gets

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Speaker 5: to decide who the Democratic Party's nominee is, and they

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Speaker 5: haven't made a choice yet. I don't think there'd be

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Speaker 5: an issue even that's what was answered the nomination, because

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Speaker 5: they still get to write their own rules. Just to

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Speaker 5: make it clear, Biden was never the nominee. He was

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Speaker 5: the presumptive nominee. He was never the nominee, and so

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Speaker 5: there's no challenge to make. There's no substitution, No ballots

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Speaker 5: have been printed, and so it's it's totally blowing smoke.

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Speaker 3: So then what about the June twenty first memo from

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Speaker 3: the Heritage Foundation, the conservative think tank, where it says

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Speaker 3: it views swing states Georgia, Nevada, and Wisconsin as likely

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Speaker 3: arenas for pre election legal challenges because they have specific

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Speaker 3: procedures for withdrawal of a presidential nominee.

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Speaker 5: The only way there would be anything is that Biden

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Speaker 5: had actually been nominated. But Biden wasn't nominated. It doesn't

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Speaker 5: matter that Biden won primary there because many times a

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Speaker 5: candidate who's won primary insup states who's is the nomination.

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Speaker 5: So the fact that Harris didn't win the primary in

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Speaker 5: the NY of the states is irrelevant. Many candidate who

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Speaker 5: are an ultimate nominees lost some primaries, they still got

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Speaker 5: to be on the ballots of the states where they

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Speaker 5: lost the primary. So I think they might have some

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Speaker 5: argument that he'd actually been nominated and she was being

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Speaker 5: put in to replace him, but he was never nominated.

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Speaker 3: Which do you see any other legal complications of her candidacy.

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Speaker 5: No, I don't. I don't. I mean, I think again,

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Speaker 5: there's a potential potential challenge on the money when it

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Speaker 5: goes from Biden Harris to Harris somebody else. But I

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Speaker 5: do think there it's still Harris. I think that challenge

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Speaker 5: is pretty weak. There's absolutely no challenge on her being

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Speaker 5: on the ballot because you say, one more time, Biden

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Speaker 5: was never the nominee, so there's no issue about changing nominees.

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Speaker 5: He hadn't been nominated yet and you know, it was

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Speaker 5: not likely that he would have been defeated at the convention.

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Speaker 5: But there had been contested conventions. I mean, maybe the

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Speaker 5: less truly congested one was in nineteen seventy six when

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Speaker 5: Ronald Reagan was trying to unseat Gerald Ford. He came close,

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Speaker 5: and if he had done that, he would have been

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Speaker 5: the nominee. And the fact that forward with the incumbent

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Speaker 5: president and had one a bunch of states and primaries

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Speaker 5: would have been irrelevant.

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Speaker 3: So do you have any idea what Mike Johnson is

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Speaker 3: talking about? Then?

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Speaker 5: I have no idea what he's talking about. I mean,

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Speaker 5: I mean, some of the noise he's making is that

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Speaker 5: it's undemocratic, small d democratic. But the parties get to

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Speaker 5: write their own rules about who the nominees are. Supreme

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Speaker 5: Court has said that, going back to contested conventions in

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Speaker 5: the nineteen seventies, This is the parties are private organizations.

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Speaker 5: They get to write their own rules and to choose

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Speaker 5: their own nominees. And it looks like they're going to

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Speaker 5: choose to nominate Harris. If they do nominate Harris, she's

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Speaker 5: the nominee. She's the one who gets on the ballot.

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Speaker 5: And if for some reason, they choose to nominate somebody

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Speaker 5: else because something else happened in the next three weeks,

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Speaker 5: that person would be the nominee.

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Speaker 3: And what do you think about Johnson's argument that this

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Speaker 3: violates democratic principles that voters chose Biden in the primaries

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Speaker 3: and now they're getting Harris.

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Speaker 4: There's a reason it's unprecedented. You don't just, you know,

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Speaker 4: steamroll the rules in the process because you decide that

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Speaker 4: your candidate is no longer suitable.

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Speaker 5: I mean, I think, for one thing, Biden was always

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Speaker 5: running with Harris as his teammate, so to some extent,

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Speaker 5: they're still getting one of their choices. But I think

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Speaker 5: in the end, remember, the winner of the primary in

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Speaker 5: any one state is not guaranteed or in many states.

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Speaker 5: I mean, going back to nineteen sixty eight, Hubert Humphrey

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Speaker 5: didn't run any primaries and he was the nominee. Eugene

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Speaker 5: McCarthy won more primaries than Hubert Humphrey, but Hubert Humphrey

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Speaker 5: was the nominee.

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Speaker 3: Everyone agrees on one thing, this is unprecedented. But is

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Speaker 3: there anything in presidential history that would be analogous.

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Speaker 5: It's hard to make an analogy where there was somebody

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Speaker 5: who was so clearly the presumptive nominee and then who

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Speaker 5: pulls out at the last minute. There have been a

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Speaker 5: couple of elections where a candidate dies that the person's

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Speaker 5: already been nominated, and then there's a scrambled to place

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Speaker 5: that candidate. That has happened, But I can't recall anything

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Speaker 5: like this where there was somebody who had won all

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Speaker 5: the primaries, was the presumptive nominee and then decides no,

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Speaker 5: I'm not going to run, and the party quickly rallies

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Speaker 5: around another person. But again, this is the person who

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Speaker 5: was his number two. It's not a challenger who is

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Speaker 5: going to be chosen. So it is unprecedented, but it's utterly,

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Speaker 5: entirely consistent with the rules. Maybe just leave it at that.

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Speaker 5: Is that again, just to make it clear, he was

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Speaker 5: never the nominee, So they're not replacing a nominee. They're

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Speaker 5: just picking a nominee. And when people were donating money,

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Speaker 5: they were donating money to Biden Harris. It looks like they're.

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Speaker 3: Still going to get Harris, which delegates are planning a

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Speaker 3: virtual roll call vote within the next two weeks to

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Speaker 3: confirm Harris as their nominee. For president. Just suppose that

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Speaker 3: doesn't happen for some reason.

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Speaker 5: The way delegates work in the Democratic Party, even if

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Speaker 5: Biden were running, the nature of the pledge is it's

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Speaker 5: like an honor pledge or a good faith pledge. So

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Speaker 5: even the pledge, delegates actually could have voted for someone else.

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Speaker 5: So the fact that they've kind of announced a commitment

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Speaker 5: to her, they're not legally pledged to her, so people

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Speaker 5: could change their minds. I mean, I'm not saying that's

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Speaker 5: going to happen, but I think the real issue is

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Speaker 5: I think I saw Mary and Williamson I might have declared.

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Speaker 5: I think under the rules of the Democratic Party, anyone

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Speaker 5: who wants to be nominated would need to support of

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Speaker 5: three hundred delegates, with no more than fifty from one state.

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Speaker 5: And at this point it doesn't seem like there'll be

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Speaker 5: any other candidate, so I think in that sense, she

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Speaker 5: has it wrapped up. None of the other prominent figures

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Speaker 5: in Democratic parties have indicated any interest in running. I

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Speaker 5: think at this point they've all endorsed her, so in

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Speaker 5: some sense it's technically open. But she's going to be nominated, presumably,

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Speaker 5: if not by acclamation then by some overwhelming quote, and.

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Speaker 3: I guess the only mystery left is who she'll choose

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Speaker 3: as vice president. Thanks so much, rich for clearing up

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Speaker 3: the confusion and ending the speculation. That's Professor Richard Rfault

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Speaker 3: of Columbia Law School coming up next on the Bloomberg

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Speaker 3: Law Show. You may remember in late May when the

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Speaker 3: Justice Department filed a major antitrust lawsuit to break up

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Speaker 3: Live Nation and Ticketmaster. Well, we've just seen Live Nation's

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Speaker 3: first response, and it's pretty underwhelming. I'm June Grosso and

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Speaker 3: you're listening to Bloomberg.

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Speaker 6: Ticketmaster can impose a seemingly endless list of fees on fans.

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Speaker 6: Those include ticketing fees, service fees, convenience fees, platinum fees,

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Speaker 6: price master fees, per order fees, handling fees, and payment

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Speaker 6: processing fees.

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Speaker 3: Anyone who's bought concert tickets on Ticketmaster can probably relate

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Speaker 3: to Attorney General Merrick Garland's description of the seemingly non

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Speaker 3: ending fees to purchase. Ticketmaster, the country's largest ticketing company,

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Speaker 3: and its parent company, Live Nation, the country's largest concert promoter,

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Speaker 3: have a long history of clashes with major artists, including

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Speaker 3: the fiasco in twenty twenty two. When the website crashed

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Speaker 3: during a pre sale for Taylor Swift Stadium tour, led

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Speaker 3: to congressional hearings. Garland said it was time for fans

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Speaker 3: and artists to stop paying the price for the monopoly,

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Speaker 3: and so the Justice Department and more than two dozen

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Speaker 3: states filed a sweeping anti trusts lawsuit in May to

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Speaker 3: force the breakup of Live Nation and Ticketmaster.

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Speaker 6: Live Nation suffocates its competition using a variety of tactics,

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Speaker 6: from acquisitions of smaller regional promoters and venues to threats

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Speaker 6: and retaliation to agreements with rivals designed to neutralize them.

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Speaker 6: This has included acquiring or co opting key independent promoters.

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Speaker 3: Live Nation denies its a monopoly, and its CFO, Joe Burke,

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Speaker 3: told told the Senate Judiciary Committee last year that it

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Speaker 3: was not responsible for high ticket prices.

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Speaker 7: Pricing and distribution strategies are determined by the artists and

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Speaker 7: their teams. Service fees, even if they're called ticketing fees,

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Speaker 7: are retained mainly by the venues in their portion of

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Speaker 7: the service fee. The Ticketmaster retains has been falling steadily

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Speaker 7: over time.

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Speaker 3: But Live Nation's first official response to the lawsuit, in

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Speaker 3: a letter to the trial judge is really underwhelming according

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Speaker 3: to anti trust experts, and one of those experts joins me. Now,

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Speaker 3: Harry First, a professor at NYU Law School. Harry start

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Speaker 3: by telling us about the Justice Department's anti trust case.

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Speaker 8: Okay, so this is in some ways basically a suit

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Speaker 8: to correct a bad mistake the Justice Department made in

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Speaker 8: twenty ten. So it's taken them a while, but eventually

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Speaker 8: anti trust enforcers are trying to get it right. So

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Speaker 8: what happened was in two thousand and nine, Ticketmaster and

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Speaker 8: Live Nation decided to merge, and the Justice Department looked

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Speaker 8: at it. Ticketmaster, of course, sells ticketing services to major

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Speaker 8: venues around the country what's now called primary ticketing services.

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Speaker 8: The secondary markets weren't so developed then reselling and Live

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Speaker 8: Nation was the biggest promoter at the time and it

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Speaker 8: sort of entered the ticketing market. But basically this was

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Speaker 8: what's referred to as a vertical merger, not really competitors

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Speaker 8: or not much competitors yet. But at the time the

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Speaker 8: Justice Department understood what was going on. So Live Nation,

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Speaker 8: which was a big promoter and booker of venues, wanted

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Speaker 8: to put its shows into venues that would use Ticketmaster ticketing.

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Speaker 8: So the venues knew that if they wanted to get

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Speaker 8: you a really good show, the best way to do

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Speaker 8: it was to use Ticketmaster because they really needed Live

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Speaker 8: Nations talents. So Live Nation, as a promoter of major tours,

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Speaker 8: thought that this tie up would sort of help both businesses,

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Speaker 8: as did Ticketmaster. It would give Ticketmaster and edge over

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Speaker 8: competitors in the ticketing business, and it would increase Live

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Speaker 8: Nations revenues because now they owned a ticket in company.

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Speaker 8: So control the talent, control entry or choice of the venues,

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Speaker 8: and you control ticketing. So at the time, the Justice

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Speaker 8: Department knew this, there was testimony about this, and also

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Speaker 8: Ticketmaster had, you know, in major venues, a major share

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Speaker 8: of the market, maybe seventy or so percent, so they

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Speaker 8: had a dominant or monopoly position at the time. But

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Speaker 8: instead of saying you can't merge, they said, hey, go

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Speaker 8: ahead and merge. We've got some conditions for you. First,

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Speaker 8: help a company is trying to get into the ticketing

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Speaker 8: business get into it through some software. Okay, that was

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Speaker 8: one idea. The second thing is we'll tell Live Nations

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Speaker 8: that they can't condition their talents, you know, with venues

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Speaker 8: on using Ticketmaster. They can't make that a condition and

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Speaker 8: they can't retaliate against the venue if that venue subsequently

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Speaker 8: decides to use a ticketing company. So no conditioning, no retaliation. Fine.

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Speaker 8: We think this is wonderful. Parties merge the new entrant.

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Speaker 8: Turns out never does well, and almost from the beginning

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Speaker 8: they violate the decree, And in fact, they don't have

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Speaker 8: to actually violate it because every promoter, every venue owner

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Speaker 8: knows what the deal is. You know, give Live Nation

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Speaker 8: the ticketing revenue, more likely you're going to get the

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Speaker 8: good tours into your venue, and there's a lot of

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Speaker 8: competition for that. So this decree never worked. It didn't

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Speaker 8: work because the parties violated. There were later proceedings because

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Speaker 8: it looked like they were violating it, and then kame

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Speaker 8: Taylor Swift.

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Speaker 3: And then the hearings in the Senate. That was the push.

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Speaker 3: Wasn't it for the Justice Department to actually sue?

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Speaker 8: That finally pushed the Justice Department. This has been a

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Speaker 8: pretty aggressive Justice Department on any trust to say, you know,

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Speaker 8: just really, it's almost fifteen years. It just didn't work

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Speaker 8: and it's time to do something about it. So the

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Speaker 8: lawsuit we see now is the Justice Department saying Ticketmaster

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Speaker 8: has a monopoly position in primary ticketing services, and it's

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Speaker 8: solidified by being owned by Live Nation. We've got to

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Speaker 8: stop it, declare them monopoly, and then break them up.

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Speaker 3: So they're at the motion to dismiss stage, and the

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Speaker 3: trial judge had asked Live Nation to identify issues it

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Speaker 3: might move to dismiss. Live Nation offered its first official

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Speaker 3: response to the suit in a letter to the judge,

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Speaker 3: and its response was quite narrow, really just challenging one

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Speaker 3: of the government's claims, the tying claim. What did you

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Speaker 3: think of Live Nation's response?

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Speaker 8: Not much? I mean, okay, it involves a little more

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Speaker 8: factual analysis of who's force to do was basically a

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Speaker 8: compelled arrangement. So there is in the Justice Department's complaint

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Speaker 8: not just a complaint about monopolization of the ticketing markets

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Speaker 8: and large venues. There's a complaint about a tying arrangement

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Speaker 8: that involves talent itself. So a tying arrangement is basically,

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Speaker 8: you have two products. A seller says, if you want

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Speaker 8: my A product, guess what you've got to take B.

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Speaker 8: So you know, if you want my car, you got

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Speaker 8: to take my tires. There's always a question of what

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Speaker 8: two products are, but that's the basic of a tying arrangement,

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Speaker 8: and the Justice Department alleges that Talent knows there's this

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Speaker 8: talent promoting services market that Live Nation also is involved in.

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Speaker 8: So if you want those promotion services, you've got to

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Speaker 8: be sure to be booked into the proper venues that,

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Speaker 8: of course are using Ticketmaster. This is part of the complaint,

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Speaker 8: and it's a part that the defendant, Ticketmaster A Love

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Speaker 8: of Nation, says it might move to dismiss, but frankly,

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Speaker 8: it seems like a rather minor part of the complaint.

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Speaker 8: The big part is their monopolization claim and the big

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Speaker 8: relief is to break up the company. So time can

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Speaker 8: be a problem, and it's historically been a problem, but

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Speaker 8: it's not the central problem of this piece of litigation.

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Speaker 8: So they haven't made their motion yet and it's a

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Speaker 8: little I don't know what they're doing with this particular part.

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Speaker 8: They are trying to move the case to a different court,

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Speaker 8: so maybe they don't want to reveal their entire legal

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Speaker 8: strategy at the moment, I really don't know, but they're

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Speaker 8: trying to change where the case is going to be

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Speaker 8: tried from New York to DC.

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Speaker 3: Yeah, and why do they want to change venues? Do

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Speaker 3: they think they'll have more luck in DC than in

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Speaker 3: New York?

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Speaker 8: I knew you were going to ask me that.

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Speaker 3: I guess I'm too predictable.

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Speaker 8: And I'm not really sure why they want to do that.

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Speaker 8: Flow things down. Maybe they're dissatisfied with this particular judge.

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Speaker 8: They know who they've got here. Maybe the docket is

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Speaker 8: slower in DC, They've got a lot of cases there.

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Speaker 8: Part of it may be related to their effort to

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Speaker 8: dismiss the state claims. So the states are asking for damages,

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Speaker 8: not clear which states, but under their state law. And

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Speaker 8: there's now precedent in the DC Circuit which takes a

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Speaker 8: somewhat dim view of these kinds of state claims in

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Speaker 8: any trust cases, a case that involved the Facebook litigation

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Speaker 8: in the District of Columbia. So maybe they feel they

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Speaker 8: have a better chance of getting those state claims dismiss there.

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Speaker 8: And the state claims also come with a request for

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Speaker 8: a jury trial. So hard for me to know exactly strategically,

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Speaker 8: you know what all is going on, And I mean,

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Speaker 8: obviously people don't ask for change of venue unless they

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Speaker 8: think they'll be better off someplace else. But I'm not

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Speaker 8: quite sure why they.

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Speaker 3: Think that, And so in this letter to the judge

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Speaker 3: they try to knock out the state claims in different ways.

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Speaker 3: Are they trying to avoid a jury trial in a

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Speaker 3: case like this where I mean, who hasn't been aggrieved

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Speaker 3: by ticket Master?

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Speaker 8: You mean you think the jury might not be too sympathetic.

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Speaker 3: That's what I'm thinking, but everyone hates.

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Speaker 8: Yeah, that's a good instinct. I think on this they

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Speaker 8: really would not want to have to present this case

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Speaker 8: to a jury. And the claim for damages seems it's

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Speaker 8: a little vague, which the defendant does say, and I

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Speaker 8: think correctly, you know, not that he can't be made

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Speaker 8: less vague. But if there's not a claim for damages,

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Speaker 8: then the case gets tried before a judge, and you

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Speaker 8: just hope, I guess that the judges never bought a ticket. Now,

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Speaker 8: if it doesn't get moved them, they're going to make

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Speaker 8: the same claims in New York. And you know they've

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Speaker 8: already cited the DC circuit case. But you know it's

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Speaker 8: stronger if it's in a circuit in which you're litigating,

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Speaker 8: not in a sister circuit.

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Speaker 3: As you mentioned, DOJ wants a breakup of the company,

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Speaker 3: which is a drastic remedy. But I've heard it said

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Speaker 3: that if it applies anywhere, it should be here.

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Speaker 8: Yeah, I mean, in many ways this is I mean,

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Speaker 8: I don't know for sure because they don't know the

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Speaker 8: inner workings of how integrated the firms are. But this

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Speaker 8: should be a case where it's relatively easy, relatively being

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Speaker 8: the keyword to break the company up because they do

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Speaker 8: operate as at least public Facing has two separate companies.

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Speaker 8: They do two separate things. They're in separate markets that

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Speaker 8: are linked, but they used to operate separately before and

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Speaker 8: presumably could operate separately again. So I think you're right.

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Speaker 8: This is a case where, you know, restructuring of the

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Speaker 8: company sounds like it is doable. The question is whether

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Speaker 8: that's going to change Ticketmaster's monopoly position or not, And

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Speaker 8: that's sort of the next step. So you could break

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Speaker 8: them up, but you know, how much will that increase

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Speaker 8: competition in itself?

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Speaker 3: Can live Nation use the fact that DOJ allowed the

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Speaker 3: merger to proceed in the first place, and then agreed

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Speaker 3: to extend the initial consent decree as recently as twenty nineteen,

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Speaker 3: even after it found that live Nation repeatedly violated the decree.

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Speaker 8: They will make that argument. Is it a good legal argument?

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Speaker 8: I really don't think so. There is not what's called

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Speaker 8: in a stoppel against the government. The government is able

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Speaker 8: to and free to change its policy as it sees

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Speaker 8: how it works. There are older cases in which the

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Speaker 8: government accepted this particular remedy. The remedy didn't work out.

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Speaker 8: The district court judge in fact in that older case said, gee,

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Speaker 8: I can't change this decree. You entered it, and the

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Speaker 8: Supreme Court said, no, you can. It didn't work. Ten

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Speaker 8: years you had a chance for this to work and

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Speaker 8: it didn't bring competition. Ten years is long enough. So

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Speaker 8: I don't think in the end that's really a good argument.

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Speaker 8: You know, things change and decrees don't work out, and

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Speaker 8: they don't bind successive governments forever.

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Speaker 3: Always great to get your insights, Harry, Thanks so much.

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Speaker 3: That's Professor Harry First of NYU Law School. Coming up next.

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Speaker 3: Defense attorneys beware of those plea bargaining sessions. I'm June Grass.

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Speaker 3: When you're listening to Bloomberg, Plea bargains account for almost

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Speaker 3: ninety eight percent of federal convictions. And we've all seen

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Speaker 3: how it works, sort of in movies and TV shows

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Speaker 3: like Presumed Innocent, where the defense attorney is trying to

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Speaker 3: get his client a plea.

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Speaker 9: Deal, blood and guts everywhere at her home, not so

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Speaker 9: much as a microscopic drop in this car he cleaned

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Speaker 9: it or on his clothing cleaned it also weapons disposed

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Speaker 9: that it. Rusty cannot risk spending the rest of his

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Speaker 9: natural life in prison, and you cannot chance an acquittal

433
00:24:37,600 --> 00:24:41,600
Speaker 9: and the obliteration of all of your political capital. We'll

434
00:24:41,640 --> 00:24:43,960
Speaker 9: cop to the obstruction three years.

435
00:24:47,040 --> 00:24:50,560
Speaker 4: Ray, you seriously think we'll plead it out on an

436
00:24:50,560 --> 00:24:52,160
Speaker 4: obstruction surn But what.

437
00:24:52,200 --> 00:24:56,119
Speaker 3: If prosecutors use information they get from defense lawyers in

438
00:24:56,160 --> 00:25:00,240
Speaker 3: those sessions against the defendant. That's basically what happened to

439
00:25:00,280 --> 00:25:04,679
Speaker 3: Senator Bob Menandez in his corruption trial. While the gold bars,

440
00:25:04,720 --> 00:25:07,720
Speaker 3: the half million in cash, and the Mercedes Benz got

441
00:25:07,800 --> 00:25:11,760
Speaker 3: most of the attention, federal prosecutors made an unusual and

442
00:25:11,880 --> 00:25:16,280
Speaker 3: aggressive move in charging Menendez with obstruction based on the

443
00:25:16,320 --> 00:25:19,560
Speaker 3: presentation made by his former lawyer in a meeting with

444
00:25:19,640 --> 00:25:23,880
Speaker 3: prosecutors before the indictment. Joining me is former federal prosecutor.

445
00:25:23,920 --> 00:25:27,719
Speaker 3: Ariel Newman, a partner at Bird Marilla Ariel how common

446
00:25:27,840 --> 00:25:31,080
Speaker 3: is it for defense attorneys to meet with prosecutors to

447
00:25:31,160 --> 00:25:33,120
Speaker 3: try to talk them out of bringing charges.

448
00:25:33,680 --> 00:25:36,720
Speaker 10: So in this case, we're talking about pre indictment, meaning

449
00:25:36,760 --> 00:25:40,280
Speaker 10: before the defendant is charged, And these meetings are very,

450
00:25:40,400 --> 00:25:43,240
Speaker 10: very common, especially in the white collar context where we're

451
00:25:43,240 --> 00:25:46,399
Speaker 10: talking about fraud crimes of some sort. We are going

452
00:25:46,560 --> 00:25:49,840
Speaker 10: in and making the case to the prosecutors about why

453
00:25:49,840 --> 00:25:53,320
Speaker 10: they shouldn't pursue a case against our client. And it

454
00:25:53,359 --> 00:25:56,119
Speaker 10: may be legal arguments, it may be factual arguments, but

455
00:25:56,440 --> 00:25:58,560
Speaker 10: we are trying to convince them that they don't have

456
00:25:58,600 --> 00:26:01,359
Speaker 10: a case, or for whatever reason, they shouldn't pursue a

457
00:26:01,400 --> 00:26:02,439
Speaker 10: case that they think they have.

458
00:26:02,800 --> 00:26:06,960
Speaker 3: Are these meetings supposed to be confidential or can prosecutors

459
00:26:07,040 --> 00:26:09,960
Speaker 3: use the information given to them at trial?

460
00:26:10,600 --> 00:26:13,240
Speaker 10: Usually there is an agreement or there's a request for

461
00:26:13,280 --> 00:26:16,160
Speaker 10: an agreement by the defense lawyer that these are protected

462
00:26:16,200 --> 00:26:19,600
Speaker 10: as settlement conversations. There's a sederal rule of evidence that

463
00:26:19,680 --> 00:26:24,440
Speaker 10: says settlement communications can't be admitted for almost and that's

464
00:26:24,440 --> 00:26:27,760
Speaker 10: an important almost almost any purpose at trial, and so

465
00:26:28,160 --> 00:26:31,080
Speaker 10: generally the expectation is that these are going to be

466
00:26:31,600 --> 00:26:35,440
Speaker 10: largely confidential. And then the caveat to that is sometimes there

467
00:26:35,600 --> 00:26:38,399
Speaker 10: is an agent that's an FBI agent, who is taking

468
00:26:38,400 --> 00:26:41,119
Speaker 10: notes during the meeting. If that's happening, you tend to

469
00:26:41,160 --> 00:26:43,879
Speaker 10: know that it may not be as confidential as you hope. Also,

470
00:26:44,000 --> 00:26:46,280
Speaker 10: I mean, I've had it where they write a report

471
00:26:46,359 --> 00:26:48,520
Speaker 10: and then they produce it in discovery. If the government

472
00:26:48,560 --> 00:26:51,320
Speaker 10: goes ahead and charges your clients anyway, and there's other

473
00:26:51,400 --> 00:26:53,960
Speaker 10: people who are charged in the case along with your client,

474
00:26:54,119 --> 00:26:57,399
Speaker 10: and suddenly they are seeing a report about what you

475
00:26:57,480 --> 00:26:59,840
Speaker 10: said during that meeting where you were trying to convince

476
00:26:59,840 --> 00:27:01,520
Speaker 10: the government not to charge your client.

477
00:27:01,760 --> 00:27:03,800
Speaker 3: I mean, was that in a case where you thought

478
00:27:03,960 --> 00:27:06,440
Speaker 3: what you were saying was not to be used.

479
00:27:06,800 --> 00:27:09,800
Speaker 10: We thought it was a confidential settlement meeting. They never

480
00:27:10,280 --> 00:27:13,919
Speaker 10: tried to introduce it at trial. But there isn't really

481
00:27:14,000 --> 00:27:16,639
Speaker 10: anything prohibiting them from doing what they did unless you

482
00:27:16,680 --> 00:27:19,919
Speaker 10: have an agreement explicitly that they won't. And I have

483
00:27:20,040 --> 00:27:22,280
Speaker 10: found more and more as I have asked for those

484
00:27:22,320 --> 00:27:26,280
Speaker 10: agreements that prosecutors and especially prosecutors from what we call

485
00:27:26,359 --> 00:27:29,080
Speaker 10: main Justice DOJ and DC as opposed to the local

486
00:27:29,160 --> 00:27:32,239
Speaker 10: US attorney's office are less and less willing to have

487
00:27:32,280 --> 00:27:34,160
Speaker 10: any sort of agreement about what they're going to do

488
00:27:34,320 --> 00:27:36,960
Speaker 10: with the information you provide. But what happened in the

489
00:27:36,960 --> 00:27:39,920
Speaker 10: Menendez case, Honestly, I've never heard of that before, and

490
00:27:40,280 --> 00:27:42,440
Speaker 10: everybody I've talked to has never heard of it before,

491
00:27:42,680 --> 00:27:46,800
Speaker 10: where prosecutors in that case charged the defendant with obstruction

492
00:27:47,280 --> 00:27:52,359
Speaker 10: because they claim the lawyers provided false factual information during

493
00:27:52,480 --> 00:27:56,720
Speaker 10: those meetings, which they say the lawyers got from the defendant.

494
00:27:56,720 --> 00:27:59,320
Speaker 10: You know, we are always talking about facts during the

495
00:27:59,440 --> 00:28:03,240
Speaker 10: meeting legal arguments, but we're also making factual arguments. And

496
00:28:03,680 --> 00:28:05,440
Speaker 10: I've never heard of and like I say, nobody else

497
00:28:05,440 --> 00:28:07,240
Speaker 10: that I know I has ever heard of the government

498
00:28:07,320 --> 00:28:10,119
Speaker 10: charging obstruction based on what you say during those meetings.

499
00:28:10,400 --> 00:28:12,479
Speaker 3: And we should point out that the exception to the

500
00:28:12,480 --> 00:28:16,000
Speaker 3: federal rule that you referred to before is that statements

501
00:28:16,080 --> 00:28:20,600
Speaker 3: made during these negotiations can be used to prove obstruction,

502
00:28:21,040 --> 00:28:24,160
Speaker 3: as in the Menendez case. So Abby Lowell, a high

503
00:28:24,160 --> 00:28:29,840
Speaker 3: profile criminal defense attorney, represented Menendez in these pre indictment

504
00:28:29,960 --> 00:28:33,439
Speaker 3: negotiations with the prosecutors in the Southern District, and he

505
00:28:33,520 --> 00:28:36,520
Speaker 3: made a PowerPoint presentation. Is that unusual?

506
00:28:37,040 --> 00:28:40,280
Speaker 10: Not at all, very common. That helps outline the discussion,

507
00:28:40,400 --> 00:28:43,000
Speaker 10: helps frame what you're going to be talking about, and

508
00:28:43,040 --> 00:28:45,880
Speaker 10: the hammer home the point that you want the government

509
00:28:45,880 --> 00:28:49,480
Speaker 10: to focus on. So very very common to have a presentation,

510
00:28:49,680 --> 00:28:53,000
Speaker 10: and I think important in any of these presentations that

511
00:28:53,000 --> 00:28:55,680
Speaker 10: that's all what it is, maybe an outline or maybe

512
00:28:55,720 --> 00:28:57,960
Speaker 10: just a couple of bullet points on a screen, maybe

513
00:28:58,000 --> 00:29:01,560
Speaker 10: a couple pictures or citations to cases. None of us

514
00:29:01,560 --> 00:29:04,480
Speaker 10: are putting the entire context of what we're going to

515
00:29:04,520 --> 00:29:07,040
Speaker 10: say up on the screen. In fact, my practices edit

516
00:29:07,080 --> 00:29:08,760
Speaker 10: it down to the fewest words possible.

517
00:29:09,200 --> 00:29:13,440
Speaker 3: The judge allowed the government to introduce a trial pages

518
00:29:13,680 --> 00:29:18,360
Speaker 3: from that PowerPoint presentation. I mean, what about attorney client privilege?

519
00:29:18,400 --> 00:29:22,680
Speaker 3: What about attorney work product? Where were those concepts in this?

520
00:29:23,360 --> 00:29:26,920
Speaker 10: So attorney client privilege once you share with the government,

521
00:29:27,040 --> 00:29:30,040
Speaker 10: let's say what your client said, then it's free game.

522
00:29:30,160 --> 00:29:32,960
Speaker 10: Right you've sort of waived at least as to those statements.

523
00:29:33,080 --> 00:29:35,720
Speaker 10: Arguably the privilege depends how you say it, right, my

524
00:29:35,920 --> 00:29:39,320
Speaker 10: client told me X that's pretty much a waiver. But

525
00:29:39,880 --> 00:29:43,200
Speaker 10: the attorney work product is a different question. And generally

526
00:29:43,840 --> 00:29:46,200
Speaker 10: my view is that we shouldn't be giving the government

527
00:29:46,240 --> 00:29:48,680
Speaker 10: our work product defense lawyers. We shouldn't be giving them

528
00:29:48,680 --> 00:29:51,720
Speaker 10: our powerpoints because they can, as it appears they did

529
00:29:51,760 --> 00:29:53,760
Speaker 10: here take it out of context right here that I

530
00:29:53,760 --> 00:29:56,280
Speaker 10: think they put in four pages from what was obviously

531
00:29:56,320 --> 00:30:00,360
Speaker 10: a longer PowerPoint into evidence and the defense, if I

532
00:30:00,440 --> 00:30:02,960
Speaker 10: understand it, was really stymied in their effort to get

533
00:30:03,000 --> 00:30:05,160
Speaker 10: in any of the context around them. And it's that

534
00:30:05,320 --> 00:30:08,560
Speaker 10: context where the caveats are given, where the lawyers are

535
00:30:08,760 --> 00:30:11,800
Speaker 10: making sure that it's understood that this may not be

536
00:30:11,920 --> 00:30:14,160
Speaker 10: exactly what the client, that maybe this is what our

537
00:30:14,200 --> 00:30:18,000
Speaker 10: investigation has shown or something else. But without that context,

538
00:30:18,000 --> 00:30:21,200
Speaker 10: it becomes very difficult to get the full picture of

539
00:30:21,240 --> 00:30:23,080
Speaker 10: what was actually said during that meeting.

540
00:30:23,560 --> 00:30:26,280
Speaker 3: In light of this, you have written for Bloomberg Law

541
00:30:26,560 --> 00:30:30,440
Speaker 3: some advice for defense lawyers in these situations. First, whether

542
00:30:30,480 --> 00:30:33,600
Speaker 3: to even have the meeting? I mean, how often our

543
00:30:33,680 --> 00:30:38,800
Speaker 3: defense lawyers successful in getting prosecutors not to charge their client?

544
00:30:39,040 --> 00:30:41,000
Speaker 3: Is it worth even having one of these meetings?

545
00:30:41,320 --> 00:30:43,880
Speaker 10: I've done it, and you know people who have had success.

546
00:30:43,960 --> 00:30:46,840
Speaker 10: It depends where the government is in the process and

547
00:30:47,200 --> 00:30:49,640
Speaker 10: how could your facts and your arguments are It is

548
00:30:49,680 --> 00:30:54,000
Speaker 10: certainly in many cases worth making the presentation. First, of all,

549
00:30:54,240 --> 00:30:57,000
Speaker 10: often in advance of that, you have discussions with the

550
00:30:57,040 --> 00:30:59,680
Speaker 10: government where you can learn more about their case and

551
00:31:00,120 --> 00:31:03,320
Speaker 10: gives you a chance to find out sometimes where the

552
00:31:03,320 --> 00:31:05,800
Speaker 10: holes are in your arguments as well. Right if I

553
00:31:05,840 --> 00:31:08,080
Speaker 10: come in and I make some argument, the government says, oh,

554
00:31:08,080 --> 00:31:11,240
Speaker 10: that's all well and good, but what about XYZ And

555
00:31:11,440 --> 00:31:13,760
Speaker 10: for whatever reason I didn't know about X y Z. Well,

556
00:31:13,920 --> 00:31:16,800
Speaker 10: now we're more informed going into the next decisions about

557
00:31:16,800 --> 00:31:19,960
Speaker 10: what we're going to do. The big downside to making

558
00:31:20,000 --> 00:31:23,000
Speaker 10: these presentations is that you're showing your cards to some extent.

559
00:31:23,400 --> 00:31:26,680
Speaker 10: You're going in and you're making your pitch to the government.

560
00:31:26,680 --> 00:31:30,120
Speaker 10: You're arguing your facts, you're arguing your evidence, and you know,

561
00:31:30,280 --> 00:31:33,040
Speaker 10: the sort of conventional wisdom is that that allows the

562
00:31:33,040 --> 00:31:35,960
Speaker 10: government to shore up their case as well. They find

563
00:31:35,960 --> 00:31:38,520
Speaker 10: out where their potential holes are and where the weaknesses

564
00:31:38,520 --> 00:31:40,720
Speaker 10: in their case are. And so it's certainly a balancing

565
00:31:40,760 --> 00:31:44,200
Speaker 10: decision in every situation of whether you do this meeting,

566
00:31:44,600 --> 00:31:48,280
Speaker 10: but in many cases it's worthwhile. And in many cases

567
00:31:48,280 --> 00:31:51,520
Speaker 10: the client is really pushing because they're facing the prospect

568
00:31:51,560 --> 00:31:54,440
Speaker 10: of federal felony charges and this may be the best

569
00:31:54,440 --> 00:31:56,280
Speaker 10: shot they have to avoid them. Or at least they

570
00:31:56,280 --> 00:31:58,080
Speaker 10: think that. And that's one of the things I talk

571
00:31:58,120 --> 00:32:00,840
Speaker 10: about is how to resist that pressure. Whether to resist

572
00:32:00,920 --> 00:32:03,360
Speaker 10: that pressure. It's not always so easy when the guy

573
00:32:03,440 --> 00:32:06,440
Speaker 10: paying the bills is telling you do something to stop this. Please.

574
00:32:06,800 --> 00:32:09,640
Speaker 3: Are there any magic words that you should say at

575
00:32:09,680 --> 00:32:12,479
Speaker 3: the beginning or you should have put in writing so

576
00:32:12,520 --> 00:32:14,640
Speaker 3: that you avoid a menenda situation?

577
00:32:16,080 --> 00:32:18,120
Speaker 10: Well, there are no magic words, and so you just

578
00:32:18,200 --> 00:32:21,800
Speaker 10: have to be careful and clear as you approach this.

579
00:32:22,080 --> 00:32:23,960
Speaker 10: One of the main things is I do think it's

580
00:32:23,960 --> 00:32:27,680
Speaker 10: worth getting an agreement that these are settlement communications and

581
00:32:27,920 --> 00:32:30,959
Speaker 10: that at least gives some protection to how anything that

582
00:32:31,000 --> 00:32:33,280
Speaker 10: comes out of the meeting might be used in the future.

583
00:32:33,800 --> 00:32:36,440
Speaker 10: And a big one that I think we see here

584
00:32:36,880 --> 00:32:40,920
Speaker 10: is where at all possible not to source the information

585
00:32:41,320 --> 00:32:44,000
Speaker 10: that's in your presentation to your client, meaning not to

586
00:32:44,040 --> 00:32:46,880
Speaker 10: say my client told me X or my client says

587
00:32:47,040 --> 00:32:50,160
Speaker 10: why about this situation? And once you say that, you

588
00:32:50,240 --> 00:32:53,320
Speaker 10: are then really putting the client on the line and

589
00:32:53,360 --> 00:32:54,880
Speaker 10: their credibility on the line.

590
00:32:55,160 --> 00:32:58,600
Speaker 3: So, in talking to other defense lawyers, do you think

591
00:32:58,640 --> 00:33:02,280
Speaker 3: that they're more aware now or more afraid of what

592
00:33:02,360 --> 00:33:03,880
Speaker 3: might happen in these meetings?

593
00:33:04,440 --> 00:33:07,800
Speaker 10: I think this prosecution for people who are aware of it,

594
00:33:07,880 --> 00:33:10,200
Speaker 10: sent a bit of a shockwave through the defense bar.

595
00:33:10,720 --> 00:33:12,800
Speaker 10: I haven't had a reaction like I had to this

596
00:33:12,920 --> 00:33:15,920
Speaker 10: article from the defense bar. People pointing out to me

597
00:33:16,040 --> 00:33:19,680
Speaker 10: that they are changing their practices, people responding that they've

598
00:33:19,720 --> 00:33:21,680
Speaker 10: never heard of this, and they're going to have to

599
00:33:21,720 --> 00:33:23,760
Speaker 10: think about it going forward. You know, we're going to

600
00:33:23,760 --> 00:33:27,959
Speaker 10: have to see whether this was an outlier, very aggressive prosecution,

601
00:33:28,680 --> 00:33:31,240
Speaker 10: or whether this is something that is going to be

602
00:33:31,280 --> 00:33:33,880
Speaker 10: a tool, a new tool in the government's told belt,

603
00:33:33,920 --> 00:33:35,719
Speaker 10: and we're all going to have to be cognizant of it.

604
00:33:35,960 --> 00:33:37,920
Speaker 10: So I do think it's going to change or at

605
00:33:38,000 --> 00:33:40,840
Speaker 10: least make us more cautious as we go into these meetings.

606
00:33:41,120 --> 00:33:43,800
Speaker 3: Menanda says he's going to appeal his conviction all the

607
00:33:43,800 --> 00:33:46,960
Speaker 3: way to the Supreme Court if necessary. And we've seen

608
00:33:47,000 --> 00:33:51,200
Speaker 3: the Supreme Court in the last decade or so narrowing

609
00:33:51,280 --> 00:33:55,360
Speaker 3: the definition of corruption, leading to a number of convictions

610
00:33:55,400 --> 00:33:59,360
Speaker 3: of public figures being overturned. Do you think that'll be

611
00:33:59,400 --> 00:34:01,520
Speaker 3: one of his poor So, I'm.

612
00:34:01,400 --> 00:34:04,440
Speaker 10: Sure it's something he'll bring up. I've had bribery cases,

613
00:34:04,560 --> 00:34:07,080
Speaker 10: public corruption cases, and this is sort of where the

614
00:34:07,120 --> 00:34:09,880
Speaker 10: rub is right now as the Supreme Course is going

615
00:34:09,920 --> 00:34:12,560
Speaker 10: through and as you say, narrowing the definition of what

616
00:34:12,600 --> 00:34:15,080
Speaker 10: we call an official act. I would be shocked if

617
00:34:15,080 --> 00:34:16,920
Speaker 10: they don't focus on that. They were focused on it

618
00:34:17,000 --> 00:34:19,240
Speaker 10: in the pre trial and then again during the trial,

619
00:34:19,520 --> 00:34:21,879
Speaker 10: and it seems to me that they've got some good

620
00:34:21,960 --> 00:34:24,279
Speaker 10: arguments and they've got some that may be more of

621
00:34:24,320 --> 00:34:28,279
Speaker 10: a challenge. It's really about whether Menendez was using his

622
00:34:28,360 --> 00:34:34,840
Speaker 10: official position on any decision or action on any question matter, cause, preceding,

623
00:34:34,920 --> 00:34:37,960
Speaker 10: or controversy which may be pending before him in his

624
00:34:38,000 --> 00:34:43,319
Speaker 10: official capacity. So, for instance, he as was alleged interfered

625
00:34:43,480 --> 00:34:47,640
Speaker 10: with a state prosecution by calling up a state prosecutor

626
00:34:47,640 --> 00:34:49,799
Speaker 10: and saying, hey, maybe take another look at this now,

627
00:34:49,920 --> 00:34:53,399
Speaker 10: that's not really something that's pending before him, And maybe

628
00:34:53,480 --> 00:34:56,120
Speaker 10: a harder argument that that's an official act. He doesn't

629
00:34:56,160 --> 00:34:58,400
Speaker 10: really have an official role there. He's sort of using

630
00:34:58,440 --> 00:35:02,480
Speaker 10: his influence and position. Whereas maybe as he's alleged to

631
00:35:02,600 --> 00:35:07,040
Speaker 10: have interfered with the nomination of the US Attorney from

632
00:35:07,080 --> 00:35:11,239
Speaker 10: New Jersey by essentially corruptly making a recommendation to the

633
00:35:11,280 --> 00:35:13,800
Speaker 10: president of who to nominate, well, that may be closer

634
00:35:13,800 --> 00:35:16,960
Speaker 10: to the line because that is the traditional function of

635
00:35:17,000 --> 00:35:20,040
Speaker 10: the senator from a particular state, and that is potentially

636
00:35:20,120 --> 00:35:23,080
Speaker 10: something that was pending before him in his official capacity.

637
00:35:23,160 --> 00:35:25,719
Speaker 10: So it seems to me that they may have some luck,

638
00:35:25,840 --> 00:35:28,920
Speaker 10: but I'd be surprised if they can fully get everything reversed.

639
00:35:28,960 --> 00:35:30,919
Speaker 10: And that's just one part of the case. Obviously, there's

640
00:35:30,920 --> 00:35:33,840
Speaker 10: other pieces that don't rely on that official Act element.

641
00:35:33,960 --> 00:35:35,960
Speaker 10: Those are going to be harder for them to succeed on.

642
00:35:36,000 --> 00:35:38,080
Speaker 3: From what I can see, do you think his conviction

643
00:35:38,480 --> 00:35:41,600
Speaker 3: for being an agent of Egypt will be easier for

644
00:35:41,640 --> 00:35:42,680
Speaker 3: the defense to attack?

645
00:35:42,960 --> 00:35:44,520
Speaker 10: I think what you have to look at is the

646
00:35:44,520 --> 00:35:50,120
Speaker 10: full picture, right, because the argument is essentially that legislators,

647
00:35:50,120 --> 00:35:52,799
Speaker 10: and especially a senior senator like him, who's doing the

648
00:35:52,840 --> 00:35:55,080
Speaker 10: foreign affairs work that he's doing, are going to have

649
00:35:55,160 --> 00:35:58,160
Speaker 10: contact with foreign officials and are going to take positions

650
00:35:58,200 --> 00:36:02,040
Speaker 10: that may be to the benefit of a particular country,

651
00:36:02,080 --> 00:36:04,080
Speaker 10: in this case Egypt, And so that's just sort of

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00:36:04,120 --> 00:36:06,640
Speaker 10: part and parcel of what they do. And as a

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00:36:06,680 --> 00:36:11,160
Speaker 10: member of Congress, the challenge in a case like this is, well,

654
00:36:11,200 --> 00:36:13,919
Speaker 10: what about the rest of the picture? Right? And here

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00:36:14,000 --> 00:36:16,880
Speaker 10: it's the cash and the gold bars and the deleted

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00:36:16,920 --> 00:36:19,960
Speaker 10: messages and so on and so forth that the jury

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00:36:20,000 --> 00:36:22,399
Speaker 10: obviously felt that takes it out of the realm of

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00:36:22,560 --> 00:36:25,480
Speaker 10: what you're doing in your official capacity and puts it

659
00:36:25,560 --> 00:36:28,000
Speaker 10: more into the realm of something that is corrupt. And

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00:36:28,080 --> 00:36:30,200
Speaker 10: so that's what's going to be the bigger challenge I

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00:36:30,239 --> 00:36:32,880
Speaker 10: think on appeal is how do you question the jury's

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00:36:32,960 --> 00:36:35,440
Speaker 10: verdict in light of the full scope of the evidence.

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00:36:35,480 --> 00:36:37,719
Speaker 10: And that's always what makes these cases difficult.

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Speaker 3: Menandez as lawyers say they're going to appeal aggressively, so

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Speaker 3: we'll see what arguments they come up with. Thanks so much, Ariel.

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Speaker 3: That's Ariel Newman of Bird Marilla. And that's it for

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Speaker 3: this edition of the Bloomberg Law Podcast. Remember you can

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00:36:51,040 --> 00:36:53,960
Speaker 3: always get the latest legal news by subscribing and listening

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Speaker 3: to the show on Apple Podcasts, Spotify, and at Bloomberg

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Speaker 3: dot com, slash podcast, Slash Law. I'm June Grosso and

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Speaker 3: this is Bloomberg