Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 1: Former Trump campaign chairman Steve Bannon was defiant and combative
Speaker 1: after appearing before a judge to face criminal contempt charges
Speaker 1: for ignoring subpoenas from the House committee investigating the US
Speaker 1: Capital Riot. I'm telling you right now, this is gonna
Speaker 1: be the misdemeanor from hell for Marrick Garland, Nancy Pelosi,
Speaker 1: and Joe Biden retired to playing defense. We're gonna go
Speaker 1: on the offense on this and stand by. Contempt of
Speaker 1: Congress charges are rare and politically messy, something that Johnson's
Speaker 1: department hasn't pursued since joining me as former federal prosecutor.
Speaker 1: Robert Mentz a partner McCarter and English is the do
Speaker 1: O J on solid footing here with this prosecution. Given
Speaker 1: Bannon's complete failure to even engage with the committee, he
Speaker 1: virtually in a did Congress to seek criminal contempt charges
Speaker 1: against him and really placed the Department of Justice in
Speaker 1: a difficult position. If this is a case in which
Speaker 1: the Department of Justice was not going to act to
Speaker 1: hold somebody in criminal contempt and to seek an indictment
Speaker 1: against them. For violating the congressional subpoena, and then it's
Speaker 1: hard to imagine a case that would justify that action
Speaker 1: outside the courthouse. He said a few things. One, he said,
Speaker 1: this is going to be the misdemeanor from hell for
Speaker 1: Merrick Garland, Nancy Pelosi, and Joe Biden. We're going to
Speaker 1: go on the offense. What can he actually do besides
Speaker 1: file motions. Well, he can file motions, and he can
Speaker 1: actually make this case a bit more complicated than it
Speaker 1: may appear on the surface, because ultimately, the test here
Speaker 1: is not really whether or not Bannon's interpretation of the
Speaker 1: law is correct, but whether prosecutors can prove beyond a
Speaker 1: reasonable doubt that Bannon did not believe his assertion privilege
Speaker 1: to be credible. In other words, did he have a
Speaker 1: good face basis to assert executive privilege and refuse to
Speaker 1: cooperate with the committee even if ultimately it turns out
Speaker 1: that his claim of privilege is overturned by the courts
Speaker 1: and he would be forced to testify, how can they
Speaker 1: prove what he believed or didn't believe about the executive
Speaker 1: privilege claim. Well, in order for him to rely on
Speaker 1: executive privilege, he would have to assert what's called an
Speaker 1: advice of counsel defense. In other words, he would have
Speaker 1: to argue that he was not testifying based on the
Speaker 1: advice of his lawyer, who told him that executive privilege
Speaker 1: applaud and he did not have to appear to testify
Speaker 1: before the House. In order to do that, he has
Speaker 1: to waive his attorney client privilege with his lawyer and
Speaker 1: put his lawyer on the stand to talk about the
Speaker 1: advice that his lawyer gave him. That's a bit of
Speaker 1: a risky proposition because it opens up to prosecutors any
Speaker 1: conversation that Bandon may have had was his attorney during
Speaker 1: the scope of the rep presentation. But ultimately prosecutors will
Speaker 1: have to show that his reliance on executive privilege was
Speaker 1: not a good faith defense and that he was simply
Speaker 1: trying to avoid his obligation to testify, rather than relying
Speaker 1: on his lawyer's advice that he didn't have to testify
Speaker 1: based upon executive privilege. I suppose that's what his current
Speaker 1: lawyer was referring to outside the courthouse when he said
Speaker 1: Mr Bannon is a lay person when the privilege has
Speaker 1: been invoked by the purported holder of privilege, he has
Speaker 1: no choice but to withhold the documents and said that
Speaker 1: his lawyer told him to do so. Well, that's the
Speaker 1: only partially true, because executive privilege, while it may be
Speaker 1: in question in this case, is something that is not
Speaker 1: asserted in a blanket fashion. In other words, he should
Speaker 1: have appeared before the committee, his lawyer should have negotiated
Speaker 1: with the committee to try to work around his claim
Speaker 1: of executive privilege. And if he is going to assert
Speaker 1: executive privilege, or any other privilege for that matter, he
Speaker 1: has to do it on a question by question basis
Speaker 1: or a document by document basis. It's not appropriate to
Speaker 1: assert a privilege simply by failing to appear, or in
Speaker 1: this case, he didn't even show up when he was
Speaker 1: supposed to testify and only later asserted the privilege. And
Speaker 1: in doing so, you simply cannot say that I'm asserting
Speaker 1: privilege as to all questions that may be asked when
Speaker 1: I appear before the committee, because the committee could certainly
Speaker 1: ask him questions that are not covered by the executive
Speaker 1: privilege or any other privilege, and he has an obligation
Speaker 1: to show up and answer those questions. And if he
Speaker 1: wants to assert privilege. It should be done on a
Speaker 1: question by question or document by document basis. There are
Speaker 1: a couple of things going on. He hasn't worked at
Speaker 1: the White House for years, and he has refused to
Speaker 1: answer any questions that the committee wants to ask him.
Speaker 1: So there are some questions that are going to be
Speaker 1: outside things he discussed with Donald Trump. Well, that's exactly right,
Speaker 1: and that's the reason why we have not seen an
Speaker 1: indictment on contempt of Congress charges in this country since
Speaker 1: nine three. It's just not something that happens very often
Speaker 1: because it's a messy power. It's something that's not used
Speaker 1: by Congress frequently. Instead, what happens is there's usually a
Speaker 1: bit of a negotiation. The lawyer for the witness reaches
Speaker 1: out to the lawyers on the committee and they try
Speaker 1: to negotiate around these privileged claims. That's something that we've
Speaker 1: seen the other witnesses who have been subpoena to testify
Speaker 1: before the committee try to do. In this case, Bannon,
Speaker 1: simply stone Wall of the Committee, did not cooperate, did
Speaker 1: not respond, his lawyer, did not engage, simply try to
Speaker 1: assert a blanket privileged claim, and flatly refused to cooperate
Speaker 1: in any manner. He was essentially begging the Committee to
Speaker 1: make this referral and testing Merrick Garland as to whether
Speaker 1: or not he would do something that hadn't been done
Speaker 1: in many, many years, and that is to indicte him
Speaker 1: for criminal contempt for failing to appear before Congress. Could
Speaker 1: this backfire on the committee? Well? Could backfire in the
Speaker 1: sense that this will be a long drawn out process.
Speaker 1: This is now a criminal case where motions will be
Speaker 1: filed and there will be discovery exchanged, and ultimately, if
Speaker 1: Mr Bannon takes this to the final hour, it will
Speaker 1: be a trial which may not happen for months or
Speaker 1: even over a year. And the problem that the House
Speaker 1: Committee is facing is that they are under a bit
Speaker 1: of a timeline here because the mid term elections could
Speaker 1: ultimately turn the House over from the Democrats to the Republicans,
Speaker 1: and that would undoubtedly end the life of this committee,
Speaker 1: and the House could then simply withdraw the subpoena. The
Speaker 1: unofficial deadline for this is the twenty two mid term elections,
Speaker 1: because the Committee will probably be disbanded after that. But
Speaker 1: that doesn't mean the prosecution against Bannon stops, does it.
Speaker 1: That's in the hands of the Justice Department. No, that's right.
Speaker 1: It simply means that it could take a long time
Speaker 1: before the Banning cases ultimately resolved through the legal system.
Speaker 1: The last time we saw someone challenge a congressional subpoena
Speaker 1: during the Trump administration, former White House Council Donagan was
Speaker 1: subpoenaed by the House Judiciary Committee in April of Ultimately,
Speaker 1: he did not testify for over two years later, so
Speaker 1: this could be a long drawn out process, and in
Speaker 1: the end, it's not even clear that they will get
Speaker 1: Banning to testify because the contempt would simply put him
Speaker 1: in jail for a minimum of one month and up
Speaker 1: to a year on each of the two counts, but
Speaker 1: it's still does not force him to appear before the
Speaker 1: committee to testify, and at the midterm elections, should the
Speaker 1: House turn over to the Republicans, the committee would likely
Speaker 1: be disbanded and there would be no committee left for
Speaker 1: him to be forced to testify in front of. Even
Speaker 1: the committee members are saying that doing this is sort
Speaker 1: of a warning to other people who might choose to
Speaker 1: defy the committee requests for information, and former Trump White
Speaker 1: House Chief of Staff Mark Meadows failed to appear for
Speaker 1: a deposition on Friday, and he said that he's exerted
Speaker 1: and rightfully so his executive privilege and it's not up
Speaker 1: to me to wave it. And so it's got me
Speaker 1: between a rock and a hard space. Does President Trump
Speaker 1: have any real hold on him with these claims of
Speaker 1: executive privilege, Well, the privilege belongs to the executive branch.
Speaker 1: So the question here is whether it belongs to the
Speaker 1: current White House. President Biden has waived executive privilege to
Speaker 1: allow the committee to continue its investigation, or whether or
Speaker 1: not the former president still has some residual privilege that
Speaker 1: he can assert. There actually is some legal president for
Speaker 1: some limited privilege for a president even after he left office,
Speaker 1: So that issue will have to ultimately be decided by
Speaker 1: the courts and in the interim. Mark Meadows, who was
Speaker 1: President Trump's chief of staff, who was working in the
Speaker 1: White House on January six, is taking the position that
Speaker 1: that issue has to be resolved before he can come
Speaker 1: before Congress and testify. But he has taken a very
Speaker 1: different approach than Bannon. He has engaged with the committee,
Speaker 1: his lawyer has engaged with the committee. They have attempted
Speaker 1: to work out some areas of inquiry that he could answer,
Speaker 1: some documents that he could turn over. That is the
Speaker 1: way these things typically go forward. It's really a situation
Speaker 1: with Steve Bannon where he is almost begging Congress to
Speaker 1: hold him in contempt and almost begging the Department of
Speaker 1: Justice to indict him. So in some ways he got
Speaker 1: exactly what he asked for. But in the end, will
Speaker 1: it force Bannon to testify? Probably not. Bannon is wearing
Speaker 1: this indictment like a badge of honor. It's something that
Speaker 1: he not only was inviting but now seems to be
Speaker 1: reveling in. And ultimately, if he's convicted, he may spend
Speaker 1: some time in jail, but there's no way to force
Speaker 1: him to appear before that committee and give testimony. Well,
Speaker 1: he came to the courthouse with his own camera crew,
Speaker 1: so he's enjoying this and he's using it to pump
Speaker 1: up his podcast. So now Mark Meadows, the committee said
Speaker 1: in a statement that he failed to show. He's refused
Speaker 1: to even indicate whether he used a personal cell phone
Speaker 1: on January six, and how lawmakers might retrieve his text messages.
Speaker 1: So it doesn't sound like it's much cooperation going on.
Speaker 1: I know it is, and it's more than Bannon and
Speaker 1: his lawyer engaged, and but he's still essentially refusing to cooperate.
Speaker 1: The problem is that the case against Meadows is not
Speaker 1: quite as strong as it is against Bannon because Meadows
Speaker 1: was working in the White House at the time, and
Speaker 1: much of the questioning to Meadows has to do with
Speaker 1: advice that he may have given to the President on
Speaker 1: January six, although it's also clear from the subtina that
Speaker 1: went to Mark Meadows that the committee is also seeking
Speaker 1: information not only about the January six insurrection, but also
Speaker 1: about events that happened subsequently, which as the President's phone
Speaker 1: call to the Secretary of Stating Georgia after the election,
Speaker 1: and some other steps that were taken after the election
Speaker 1: to try to influence the outcome to try to prevent
Speaker 1: President Biden's election from being certified. So it's abroad subtoena,
Speaker 1: but all in all, it still falls within the question
Speaker 1: of whether or not the president can assert executive privilege
Speaker 1: when he's no longer in office, and that's what Mark
Speaker 1: Meadows is relying on in trying to delay any appearance
Speaker 1: before this committee. And yet he appeared on TV and
Speaker 1: what he said to was you and I both know
Speaker 1: that no one in the West Wing had any knowledge
Speaker 1: of anything like what happened on January six was going
Speaker 1: to happen. I wonder if he's making his case in
Speaker 1: public to tell the committee I don't know anything. Well.
Speaker 1: I think he is trying to signal to the committee
Speaker 1: that there's nothing really there for him to testify about.
Speaker 1: But again, he has to appear before the Committee and
Speaker 1: try to assert the claims of executive privilege on a
Speaker 1: question by question. Bass is something that he has not
Speaker 1: yet agreed to do. We'll have to see how that
Speaker 1: plays out, but ultimately I think the Committee will likely
Speaker 1: come to some compromise position with Mark Meadows, because they're
Speaker 1: really not in a position to seek criminal contempt charges
Speaker 1: against witness after witness after witness. It's something that is
Speaker 1: done very rarely, and it is really more of a
Speaker 1: surgical kind of attack on a particular witness who refuses
Speaker 1: to cooperate. It's not something that can be done in
Speaker 1: a wholesale manner against a group of witnesses who are
Speaker 1: simply refusing to cooperate with the investigation. I know they're
Speaker 1: working under tight deadlines here, but why so many subpoenas
Speaker 1: and is that a good strategy. The Committee has argued
Speaker 1: that subpoenaing thirty five people and interviewing over a hundred
Speaker 1: fifty people was necessary in order to fully investigate the
Speaker 1: events of January six on the days leading up to
Speaker 1: that insurrection. But it is a bit of a risky
Speaker 1: strategy by the Committee because in issuing thirty five subpoenas,
Speaker 1: it's possible that more individuals may simply refuse to cooperate,
Speaker 1: and the Committee cannot hold them all in criminal contempt
Speaker 1: and refer all those cases over to the Justice Department
Speaker 1: and expect Attorney General Merrick Garland to prosecute all of them.
Speaker 1: So in some ways, it is a bit of a
Speaker 1: risky strategy by casting such a broad net and by
Speaker 1: subpoenaing so many individuals. Will have to see how that
Speaker 1: ultimately plays out. So far, they have gotten quite a
Speaker 1: few people to cooperate, and we don't know how many
Speaker 1: of those thirty five people who received subpoenas have cooperated,
Speaker 1: But it could backfire on them if a number of
Speaker 1: individuals simply refused to cooperate. Because it's as a practical matter,
Speaker 1: it's going to be impossible for the Committee to enforce
Speaker 1: every one of those subpoenas. So, Bob, as you said,
Speaker 1: contempt of Congress charges are rare and politically messy, something
Speaker 1: the Justice Department hasn't pursued since three Give us a
Speaker 1: little of the history here. The road that we're seeing
Speaker 1: Congress go down with regard to Steve Bowden is something
Speaker 1: that Congress does not take lightly and frankly does not
Speaker 1: engage in very often. It happens only and frequently. The
Speaker 1: last time there was a successful prosecution that goes all
Speaker 1: the way back to the Watergate era, when g. Gordon
Speaker 1: Lady and Richard Klindiats were convicted and pleaded guilty for
Speaker 1: refusing to answer Congressional inquiries. The last indictment we saw
Speaker 1: in the contempt of Congress case was three decades ago,
Speaker 1: involving a federal environmental official under President Ronald Reagan who
Speaker 1: failed to respond to a House subpoena. The official, Redal Lavelle,
Speaker 1: who headed the super fun would ultimately go on to
Speaker 1: be acquitted of the contempt charge, but was later convicted
Speaker 1: of lying to Congress and sentenced to six months in
Speaker 1: prison and find ten thousand dollars, But the Justice Department
Speaker 1: historically has been very wary of prosecuting these cases, particularly
Speaker 1: in a situation where the witnesses who are being subpoenaed
Speaker 1: and who are being held in contempt are of the
Speaker 1: opposite political party from the House on the Department of
Speaker 1: Justice that may be considering prosecuting them. And that's because
Speaker 1: this whole process has a bit of a history of
Speaker 1: being fraught with political overtones. Congress use contempt citations during
Speaker 1: the House an American Activities Committee which was formed in
Speaker 1: nineteen thirty eight to investigate individuals and organization first aversive activities,
Speaker 1: particularly those related to the Communist Party. That was a
Speaker 1: case in which many people in the film industry went
Speaker 1: to prison rather than testify about their colleagues who may
Speaker 1: have exhibited support for communist or communist leaning organizations. They
Speaker 1: were blacklisted for their failure to cooperate and is something
Speaker 1: that has been a bit of a stain on the
Speaker 1: House of represented it ever since. So it's something that
Speaker 1: has not been used much in recent years. Inspect during
Speaker 1: the Obama administration, the Department of Justice declined to prosecute
Speaker 1: an Attorney General Eric Holder and former I R. S
Speaker 1: official Lewis Larner following contempt referrals from the Republican led House. Similarly,
Speaker 1: George W. Bush's Justice Department declined to charge Harriet Myers
Speaker 1: after the former White House Council defied a subpoena in
Speaker 1: a Democratic investigation into mass firings of United States attorneys.
Speaker 1: In all, the House has brought five criminal contempt and
Speaker 1: three civil contempt actions against Executive Branch officials since two
Speaker 1: thousand and eight, and in each case the Executive Branch
Speaker 1: the Department of Justice has refused to pursue those cases criminally.
Speaker 1: Thanks for being on the Bloomberg Lass Show, Bob That's
Speaker 1: former federal prosecutor Robert Mints, a partner at McCarter and English.
Speaker 1: Texas schools can once again set their own mask rules.
Speaker 1: After a loss for Governor Greg Abbott in the first
Speaker 1: federal court ruling over his anti mask crusade, Federal Judge
Speaker 1: Lee Jaco permanently blocked Abbot's edict banning school mask mandates,
Speaker 1: ruling it was a violation of disabled students right to
Speaker 1: equally access educational facilities. Joining me is Tom Melsheimer, a
Speaker 1: partner at Winston and Strong who represented the students at trial,
Speaker 1: tell us. Your main argument to the judge, Well, we
Speaker 1: represented a group of students with disabilities who were challenging
Speaker 1: Governor Abbot's executive order banning mask mandates in public schools.
Speaker 1: And the argument that we made successfully was that the
Speaker 1: order restricting the use of mass mandates violated the Americans
Speaker 1: with Disabilities Act and related statutes because it prevented school
Speaker 1: districts from making reasonable accommodations to assist students with disabilities
Speaker 1: get the full benefits of an in person education. So
Speaker 1: it really starts with the premise that in person education
Speaker 1: is what every student is entitled to, and that there
Speaker 1: are strong benefits to in person education that cannot be
Speaker 1: duplicated virtually or online, and that to say that the
Speaker 1: disabled students, to extent they had hyped fears or risk
Speaker 1: of COVID, to say that they could simply stay home
Speaker 1: and take classes vertually, that's not an answer under the
Speaker 1: law and under the Americans with Disabilities Acts. So the
Speaker 1: whole premise was that kids with disabilities were entitled to
Speaker 1: at least ask for mask requirements, and school districts were
Speaker 1: entitled to consider them as a reasonable accommodation, and the
Speaker 1: governor's order preventing that basically interfered with and violated the
Speaker 1: civil rights of these of these disabled kids. The governor's ordered.
Speaker 1: Was there an order specifically relating to schools. Yes, well,
Speaker 1: actually the order barred all all kinds of mass mandates
Speaker 1: and public settings, including school districts, and so we were
Speaker 1: focused on the application of it in the public schools.
Speaker 1: What was the argument that the state made. Well, the
Speaker 1: legal argument they made was interesting, and so let me
Speaker 1: say what they didn't say. They didn't challenge that masking
Speaker 1: was effective at mitigating the risk of COVID. They didn't
Speaker 1: challenge that the disabled kids were at higher risk of
Speaker 1: side effects and bad consequences from COVID. They didn't challenge
Speaker 1: any of that. They basically argued that our clients lacked
Speaker 1: standing to sue to block enforcement of disorder. And this
Speaker 1: is where it gets tricky because the state says this
Speaker 1: order doesn't have an enforcement mechanism. It doesn't delegate enforcement
Speaker 1: of the order to say, the Attorney General or to
Speaker 1: the local district attorney or whatever. It doesn't say anything
Speaker 1: about who enforces. It just says you can't have mass mandates,
Speaker 1: and if you have a mass mandate, you're subject to
Speaker 1: a ten thou a day five, Okay, And they said, well,
Speaker 1: you can't sue in federal court the Attorney General because
Speaker 1: he's not specifically authorized to enforce the statute. So you're
Speaker 1: suing the wrong person essentially. Now our decision was, wait
Speaker 1: a minute, the Attorney General is out there suing school
Speaker 1: districts for violating g. A thirty eight. I mean, he's
Speaker 1: sending threatening letters to school districts. He's filing lawsuits seeking
Speaker 1: injunctive relief to prohibit the use of mass mandates. So
Speaker 1: what is he doing if not enforcing it? This is
Speaker 1: the you know, it looks like a duck and cracks
Speaker 1: like a duck and walks like a duck. It's a duck.
Speaker 1: But the state took the position that that doesn't matter
Speaker 1: the fact that the Attorney journal was suing to enforce
Speaker 1: the anti mass mandate, the fact that he was threatening
Speaker 1: school districts. If he didn't have the authority in the
Speaker 1: regulation or order itself, he couldn't be sued. And that
Speaker 1: was really the gist of their argument. The Department of
Speaker 1: Justice wigh in. They did. They weighed in on the
Speaker 1: issue of violation of the Americans with Disabilities Act. In
Speaker 1: the in the use of masking as a reasonable accommodation.
Speaker 1: I mean, we look, we argued that masking was really
Speaker 1: no different from ramps. That you imagine you had a
Speaker 1: state order or regulation or executive order that said school
Speaker 1: diserts can't have ramps. Now we would say, we'll wait
Speaker 1: a minute, shouldn't the school districts have the ability to
Speaker 1: use ramps if they had students in wheelchairs or students
Speaker 1: that needed assistance in assessing the school or particular part
Speaker 1: of the school. And that's really what the Justice Department
Speaker 1: weighed in on as well. It's just saying, look, this
Speaker 1: is a reasonable accommodation that the students ought to be
Speaker 1: entitled to. The other thing that is important that I
Speaker 1: don't think everyone fully appreciates. And the state tried to
Speaker 1: argue that we were making this point when we were not,
Speaker 1: which is the was not a case where we're arguing
Speaker 1: that you had to have mass mandates. We were not
Speaker 1: arguing for universal masking. We were not saying that the
Speaker 1: only way to mitigate COVID for disabled students is masking.
Speaker 1: We weren't saying that. We simply were saying that you
Speaker 1: can't take that out of the arsenal of weapons against COVID.
Speaker 1: And if you do that, it's akin to saying it
Speaker 1: can't have ramps and schools, and it's taking out an
Speaker 1: accommodation that ought to be available to the schools if
Speaker 1: they choose to enact it. So tell us about the
Speaker 1: judges ruling. Well, again, he took note to the fact
Speaker 1: that the state did not question the risk of COVID
Speaker 1: in the schools. The state did not question the risk
Speaker 1: of COVID two children with disabilities, The state did not
Speaker 1: challenge your question the efficacy of masking. And given those
Speaker 1: in effect agreed to or stipulated facts, he concluded that
Speaker 1: the executive order of Governor Abbott violated American's disability to
Speaker 1: act because it prevented school districts from offering masking is
Speaker 1: an accommodation. So he had joined the enforcement of it
Speaker 1: by the Attorney General in his injunction prohibits the Attorney
Speaker 1: General from threatening school districts or from suing school districts
Speaker 1: to enforce G. Thirty eight, so called any mass mandate.
Speaker 1: And that's really the seven substance of it. And he
Speaker 1: was the first federal judge to rule on Abbot's mask
Speaker 1: then well, so absolutely the first federal judge in Texas
Speaker 1: to rule on anything with respect to the mass mandate.
Speaker 1: But it's even broader than that. There were a number
Speaker 1: of these challenges brought in federal courts throughout the country,
Speaker 1: in Iowa, in Tennessee, in Florida. A number of these
Speaker 1: cases where governors had issued similar orders purporting to ban
Speaker 1: the use of mass mandates. What was unique about this
Speaker 1: case is that it was a fy an old trial
Speaker 1: on the merits. Those other cases were preliminary matters where
Speaker 1: a group of disabled students or a disabled students rights
Speaker 1: group were seeking preliminary relief or expedited or emergency relief.
Speaker 1: Judge Jakole's ruling in Texas was a full trial on
Speaker 1: the merits after discovery. So this was a final judgment.
Speaker 1: This is an a temporary ruling pending a trial. We
Speaker 1: conducted all the discovery, we did all the briefing on
Speaker 1: the motion practice, and we had a full trial in October,
Speaker 1: which he then ruled on with a complete record. So
Speaker 1: this means that at this point, school districts in Texas
Speaker 1: can require masks. They absolutely can require masks. And you know,
Speaker 1: I want to make this point because a lot of
Speaker 1: people think it's sort of a binary thing, mass or
Speaker 1: no mass. But the truth is you can have masking
Speaker 1: in a classroom, you can have masking requirements in a
Speaker 1: wing of the school. You can have mask requirements in
Speaker 1: a particular school in a broader district. And this injunction
Speaker 1: that Judge Yakol entered allows school districts across Texas to
Speaker 1: do whatever they think makes sense. And you may have
Speaker 1: a small rural district with a handful of students and
Speaker 1: no students with disabilities. Those school districts may elect to say,
Speaker 1: you know, we don't need a mass mandate where we are.
Speaker 1: You've got school districts in in Houston or Dallas or
Speaker 1: elsewhere that are dealing with large numbers of disabled students
Speaker 1: in their school population. They're going to elect potentially to say, yes,
Speaker 1: we need mass mandates to protect our students. So it's
Speaker 1: it's it's going to be sort of the freedom of
Speaker 1: these districts to taylor the appropriate masking requirement to their
Speaker 1: particular situation. The state is going to appeal. That appeal
Speaker 1: will be to the Fifth Circuit, which is the most
Speaker 1: conservative circuit in the tree. What are your chances on
Speaker 1: appeal like our chances, in part for the reasons I
Speaker 1: stated earlier that the state did not challenge really any
Speaker 1: of our factual assertions about the risk of COVID to
Speaker 1: disabled students, the efficacy of masking. That's not going to
Speaker 1: be debated in the appellate court. The only issue that's
Speaker 1: really going to be before the appellate Court is going
Speaker 1: to be this issue of standing, and I think we've
Speaker 1: got the better of the position on that. You know,
Speaker 1: this is the same issue in a slightly different circumstances
Speaker 1: that is before the Supreme Court in Texas Senate Bill eight,
Speaker 1: the statute which allows private citizens to sue abortion providers
Speaker 1: or those individuals assisting in an abortion after a certain
Speaker 1: period of time of the pregnancy. That case involves a
Speaker 1: private citizens suing in the State of Texas. View in
Speaker 1: that case is, hey, we're not suing anyone, We're not
Speaker 1: prohibiting anyone from doing anything. It's all private citizens. It's
Speaker 1: a similar issue here that they're arguing. They're saying the
Speaker 1: Attorney General is not really enforcing this order. I just
Speaker 1: think the record that was developed in front of Judge Jacob,
Speaker 1: the record of numerous lawsuits filed by the Attorney General,
Speaker 1: the record of letters written threatening school districts, the record
Speaker 1: of school districts that had mass mandates that then withdrew
Speaker 1: their mass mandates upon getting a threatening letter or a
Speaker 1: threatening phone call from the Attorney General's office, or after
Speaker 1: they were sued. I think that record is very very
Speaker 1: strong for finding that in this case, the planists do
Speaker 1: have standing to bring this kind of challenge. So so
Speaker 1: you think it will the issue is just going to
Speaker 1: be what we a procedural issue. It's it's not going
Speaker 1: to go to the heart of should there be masks
Speaker 1: or not. I don't think it can go to that because,
Speaker 1: for whatever reason, the state did not challenge the science.
Speaker 1: They didn't have their own experts. They didn't offer, for example,
Speaker 1: an expert that said that mass or deleterious in somewhere,
Speaker 1: or they have a harmful impact, or that mass aren't
Speaker 1: necessary or mass don't work. They didn't challenge that at all.
Speaker 1: So that's why I mean, of course, you never know
Speaker 1: what a reviewing court's going to do. There's a lot
Speaker 1: of unpredictability in this. But this wasn't joined issue on
Speaker 1: mask efficacy or the science. If the issue was only
Speaker 1: joined with respect to these procedural issues, which are important issues.
Speaker 1: I'm not minimizing them, but the state is not going
Speaker 1: to be able to go in front of the Fifth
Speaker 1: Circuit or any higher court and make arguments that they
Speaker 1: didn't make in front of Judge Jacob about masking or
Speaker 1: or the efficacy of masking or the need for masking.
Speaker 1: Do school districts in Texas favor masks? I think it
Speaker 1: depends on the school district. I think a lot of
Speaker 1: urban school districts that have a large populations, very diverse
Speaker 1: student populations, including significant populations of students with disabilities, they
Speaker 1: absolutely do favor them. I think school districts that are
Speaker 1: in rural communities that are smaller than are less diverse,
Speaker 1: I think they typically don't. But it's not one size
Speaker 1: fits all. There are some more rural districts that have
Speaker 1: been seeking to have mass requirements. There are some larger
Speaker 1: school districts that have decided they don't need them, and
Speaker 1: that and that's really of all the things we did
Speaker 1: in our argument in this case. I think, you know,
Speaker 1: the the strategic decision that we made early on to
Speaker 1: frame this as not pro mask any mask but to
Speaker 1: frame it as giving these districts the ability to put
Speaker 1: in ramps if they want to, but they don't have to.
Speaker 1: If they've got kids with peanut allergies, they can decide
Speaker 1: we're not going to have peanuts in the cafeteria. Giving
Speaker 1: them the freedom and flexibility. I think that resonated with
Speaker 1: the judge, and I think you will resonate more genuinely.
Speaker 1: Thanks Tom. That's Tom mel Scheimer of Winston and Strown.
Speaker 1: Former New York Governor Andrew Cuomo could be forced to
Speaker 1: return the more than five million dollars earned from his
Speaker 1: pandemic book. The Joint Commission on Public Ethics, New York's
Speaker 1: ethics watchdog, voted Tuesday to rescind its approval for Cuomo
Speaker 1: to write American Crisis Leadership Lessons from the COVID nineteen
Speaker 1: Pandemic in a twelve to one vote. The panel said
Speaker 1: Cuomo violated the Commission's requirements that he write the book
Speaker 1: on his own time and also took issue with the
Speaker 1: book's content. But an attorney for Cuomo said the former
Speaker 1: governor is ready to take the matter to court. Joining
Speaker 1: me is Brad Moss, a partner in Mark Zade Brad
Speaker 1: tell us why Cuomo needed permission to write the book,
Speaker 1: so the former governor needed, given his position as public
Speaker 1: official position at that time as the governor, um acquired
Speaker 1: him to seek approval to ensure that he wasn't using
Speaker 1: government resources and government time to write what would be
Speaker 1: a private book for obviously private compensation. He secured the approval,
Speaker 1: but they have rescinded it now based on the conclusion.
Speaker 1: And some of this came out in the earlier media reporting.
Speaker 1: Some of it came out in Leticia James's report into
Speaker 1: the sexual misconduct allegations that he had sort of pressured
Speaker 1: various officials to quote unquote volunteer their time and that
Speaker 1: the premise of the book was not what he had
Speaker 1: originally explained to the commission it would be, and it
Speaker 1: raised doubt in the commission whether or not there had
Speaker 1: been a lack of candor and how he got the
Speaker 1: original approval, and that's why they took the action they did.
Speaker 1: What do they want him to do? He's gotten about
Speaker 1: three million dollars already. What are they expecting him to do?
Speaker 1: Be can essentially he can refund the money, or he
Speaker 1: can try to base the really sue them, claiming that
Speaker 1: the essence of their conclusion was flawed and was not
Speaker 1: sufficiently based on the existing legal factors. And what they're
Speaker 1: gonna argue and you've seen some of that foreshadowed in
Speaker 1: the attorney's initial responses is that this comes down to
Speaker 1: at most of miscommunication, that there was paper work between
Speaker 1: the supers, between the Commission and Clomo's lawyers, that the
Speaker 1: understanding of what this would be was laid out there,
Speaker 1: and if there was a miscommunication, it was on the
Speaker 1: commission side, not Clomos died, and that in fact, there
Speaker 1: was no pressure on people to quote unquote volunteer their time.
Speaker 1: That's going to be their argument. My assumption, my expectation
Speaker 1: is that this will be settled, He'll refund some portion
Speaker 1: of the book advanced and the profit, and then it
Speaker 1: will continue on. There's not a lot the Commission can
Speaker 1: do beyond that. There's too much gray area and nuance
Speaker 1: here for them to really push this too far. My expectations,
Speaker 1: they just want to get their chunk of flesh, take
Speaker 1: some money back, and make him refund it and go
Speaker 1: on from there. So Cuomo's spokesman released documents outlining the
Speaker 1: distinction between the use of public resources versus staff volunteering
Speaker 1: their own time. He said, it's the height of hypocrisy
Speaker 1: for Hocal, the Governor of New York, and the legislature's
Speaker 1: appointees to take this position, given that these elected officials
Speaker 1: routinely use their own staff for political and personal assistance
Speaker 1: on their own time. Now that is true if they
Speaker 1: start look into this. So if it came to court action,
Speaker 1: these people might come up and say, well, yeah, we volunteered,
Speaker 1: then I certainly could. And if those individuals want to
Speaker 1: come forward with scorn testimony, whether in writing or verbal testimony,
Speaker 1: and state yes, I completely volunteered. I had no way
Speaker 1: was pressured to do so, this was of my own
Speaker 1: free will, that would certainly undermine the commission's argument. There's
Speaker 1: still be the separate issue of whether or not the
Speaker 1: premise of the book that came out was consistent with
Speaker 1: what was originally conveyed. Was the basis for approval. Was
Speaker 1: supposed to be a follow up to book. It ended
Speaker 1: up being something different, tied more to the pandemic. It's
Speaker 1: something where he could have potentially gotten approval even with
Speaker 1: that premise. But the Commission's argument is, you didn't tell us,
Speaker 1: that's how it was going to be you mislead us,
Speaker 1: and that was your misleading premise was what got you
Speaker 1: approval in the first place. So there's a lot to
Speaker 1: still be worked out here. I almost certainly expect that
Speaker 1: will be a lawsuit that was this will be challenged
Speaker 1: in court. There will be lots of depositions and documentation collected,
Speaker 1: and this is why I expect it will settle at
Speaker 1: some point for some amount of money. That will be
Speaker 1: a confidential stone to say that the book was different
Speaker 1: from what they thought it would be. I mean, they
Speaker 1: would have given him permission to write another book. It
Speaker 1: just seems as if they're grasping at straws there. You know,
Speaker 1: he could say the book evolved as I was writing it. Yeah,
Speaker 1: And it's you know, if if nothing else, this is
Speaker 1: you know, sort of the commission doing what it wants
Speaker 1: to hear because it can. He's obviously politically weakened. There's
Speaker 1: a question about, you know, improper abuse of authority that's
Speaker 1: already existing. They see an opportunity to kind of strike
Speaker 1: while the iron is hot. It doesn't mean that their
Speaker 1: conclusions are inappropriate or not based in good faith upon
Speaker 1: the fact, but of course it does raise a concern
Speaker 1: about whether or not this is their own abuse of discretion,
Speaker 1: which I'm sure will be part of whatever the litigation
Speaker 1: is that the former governor's lawyers will almost certainly bring,
Speaker 1: as they'll try to point to essentially a politicization of
Speaker 1: the process. They'll try to claim this is overreaching, an
Speaker 1: abuse of the discretion of the Commission. Whether or not
Speaker 1: that argument will go anywhere remains to be seen. I
Speaker 1: don't expect it will, but it will play into sort
Speaker 1: of the all encompassing political aspect of this when former
Speaker 1: Governor Cuomo almost certainly tries to make a comeback. So
Speaker 1: let me ask you this bread would the Commission bring
Speaker 1: the lawsuit or would Cuomo bring the law suit? Because
Speaker 1: the Commission doesn't have any power to do anything, do they,
Speaker 1: So Governor Culomo would bring the lawsuit because if he
Speaker 1: takes no action right now in light of this vote,
Speaker 1: the Commission can move and I'm not sure if the
Speaker 1: specific mechanism, whether they have referred to another entity, or
Speaker 1: if they have the power themselves to implement it, but
Speaker 1: they can move to basically impose like the equivalent of
Speaker 1: a lead or monetary sanction against him personally for the
Speaker 1: money he was able to collect based off this. Now
Speaker 1: we're sending approval, so he will I think if it
Speaker 1: is the equivalence of the government has gotten the imposed
Speaker 1: it got getting ready to impose a lean on your house,
Speaker 1: and you sue to challenge the authority of them to
Speaker 1: do so or the basis for them doing so. That's
Speaker 1: basically the context of which he'll will bring almost certainly
Speaker 1: this lawsuit. And where would the money go? He does,
Speaker 1: he return the money to the publishers, so they have
Speaker 1: the unintended benefit. It would likely get donated, whether to
Speaker 1: a charitable organization or quite possibly to some type of
Speaker 1: fund that would go to the government. My assumptions that
Speaker 1: can't go to New York State government in any form,
Speaker 1: but it can almost certainly get refunded to a charitable
Speaker 1: organization of some sort, which is probably what will happen anyway.
Speaker 1: But none of this is written down. This is like
Speaker 1: the first time this has happened. I can't say it's
Speaker 1: the first time ever. A lot of this isn't always
Speaker 1: public um. I'll say that it's not often that you
Speaker 1: would see this, especially for someone of such prominence and
Speaker 1: seniority as the governor of the State of New York. UM.
Speaker 1: This speaks very much to the current time frame we're
Speaker 1: in in terms of the willingness of these institutions to
Speaker 1: buck the political um authorities, but also the very weakend
Speaker 1: position that former Governor Cuomo is in given everything that's
Speaker 1: going on in the last few months. Let's say there
Speaker 1: is a lawsuit he doesn't given there's no settlement, who
Speaker 1: has the better argument in the lawsuit. I think in
Speaker 1: the end the Commission could win out if they take
Speaker 1: it all the way. My assumptions expectations I've been saying
Speaker 1: is I think they will ultimately settle it for some
Speaker 1: you know, confidential amount and make him donate it to
Speaker 1: charity and leave it at that, and allow the public
Speaker 1: optics of it to be there and to have set
Speaker 1: sort of the standard. Investigations into this book are still
Speaker 1: going on by the State Assembly, the State Attorney General's office,
Speaker 1: and the Brooklyn U. S Attorney's Office, so we could
Speaker 1: hear more about this in the future. You absolutely could,
Speaker 1: um whether from a civil context or from a criminal one,
Speaker 1: depending on the full range of actions he took. And
Speaker 1: I would certainly say the jury is still out in
Speaker 1: terms of how much trouble Andrew Cuomo got himself into.
Speaker 1: I don't anticipate much more going on beyond what's already occurred,
Speaker 1: and it sounds like the criminal allegations that have been
Speaker 1: made might not survive legal scrutiny, not a state batchel
Speaker 1: scrutiny would. I have to wait and see how that
Speaker 1: plays out. I'm sure Cuomo could write a book now
Speaker 1: and get a lot more money than that, and he
Speaker 1: almost certainly will, and it will be a sort of
Speaker 1: a tour or two of redemption, trying to, you know,
Speaker 1: make up for his sins and explain how he's understood
Speaker 1: where he went wrong, which is a very standard move
Speaker 1: for a politician to make, and there's no one better
Speaker 1: at it than Andrew Cuomo. Thanks so much for being
Speaker 1: on the show. Brad, that's Brad Moss, a partner, Mark said,
Speaker 1: and that's it for this edition of The Bloomberg Law Show.
Speaker 1: Remember you can always get the latest legal news, honor
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Speaker 1: I'm June Grosso and you're listening to Bloomberg