WEBVTT - Defiant Steve Bannon Promises a Fight 0:00:03.200 --> 0:00:07.960 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:09.039 --> 0:00:13.720 Former Trump campaign chairman Steve Bannon was defiant and combative 0:00:14.120 --> 0:00:17.720 after appearing before a judge to face criminal contempt charges 0:00:18.079 --> 0:00:21.560 for ignoring subpoenas from the House committee investigating the US 0:00:21.680 --> 0:00:25.320 Capital Riot. I'm telling you right now, this is gonna 0:00:25.320 --> 0:00:29.160 be the misdemeanor from hell for Marrick Garland, Nancy Pelosi, 0:00:29.400 --> 0:00:33.120 and Joe Biden retired to playing defense. We're gonna go 0:00:33.159 --> 0:00:36.440 on the offense on this and stand by. Contempt of 0:00:36.520 --> 0:00:40.879 Congress charges are rare and politically messy, something that Johnson's 0:00:40.920 --> 0:00:46.440 department hasn't pursued since joining me as former federal prosecutor. 0:00:46.560 --> 0:00:49.920 Robert Mentz a partner McCarter and English is the do 0:00:50.080 --> 0:00:55.280 O J on solid footing here with this prosecution. Given 0:00:55.320 --> 0:00:58.880 Bannon's complete failure to even engage with the committee, he 0:00:59.080 --> 0:01:02.960 virtually in a did Congress to seek criminal contempt charges 0:01:03.000 --> 0:01:06.280 against him and really placed the Department of Justice in 0:01:06.319 --> 0:01:09.040 a difficult position. If this is a case in which 0:01:09.040 --> 0:01:11.920 the Department of Justice was not going to act to 0:01:12.000 --> 0:01:15.240 hold somebody in criminal contempt and to seek an indictment 0:01:15.280 --> 0:01:18.560 against them. For violating the congressional subpoena, and then it's 0:01:18.560 --> 0:01:21.480 hard to imagine a case that would justify that action 0:01:22.160 --> 0:01:25.520 outside the courthouse. He said a few things. One, he said, 0:01:25.800 --> 0:01:28.280 this is going to be the misdemeanor from hell for 0:01:28.440 --> 0:01:32.560 Merrick Garland, Nancy Pelosi, and Joe Biden. We're going to 0:01:32.600 --> 0:01:36.280 go on the offense. What can he actually do besides 0:01:36.360 --> 0:01:40.160 file motions. Well, he can file motions, and he can 0:01:40.360 --> 0:01:43.920 actually make this case a bit more complicated than it 0:01:43.959 --> 0:01:48.080 may appear on the surface, because ultimately, the test here 0:01:48.560 --> 0:01:52.200 is not really whether or not Bannon's interpretation of the 0:01:52.280 --> 0:01:56.360 law is correct, but whether prosecutors can prove beyond a 0:01:56.400 --> 0:02:00.680 reasonable doubt that Bannon did not believe his assertion privilege 0:02:00.920 --> 0:02:03.000 to be credible. In other words, did he have a 0:02:03.040 --> 0:02:07.200 good face basis to assert executive privilege and refuse to 0:02:07.240 --> 0:02:10.560 cooperate with the committee even if ultimately it turns out 0:02:10.680 --> 0:02:13.720 that his claim of privilege is overturned by the courts 0:02:13.919 --> 0:02:16.440 and he would be forced to testify, how can they 0:02:16.480 --> 0:02:20.000 prove what he believed or didn't believe about the executive 0:02:20.040 --> 0:02:24.200 privilege claim. Well, in order for him to rely on 0:02:24.360 --> 0:02:27.560 executive privilege, he would have to assert what's called an 0:02:27.560 --> 0:02:30.960 advice of counsel defense. In other words, he would have 0:02:31.040 --> 0:02:33.960 to argue that he was not testifying based on the 0:02:34.000 --> 0:02:37.760 advice of his lawyer, who told him that executive privilege 0:02:37.800 --> 0:02:40.640 applaud and he did not have to appear to testify 0:02:40.840 --> 0:02:43.200 before the House. In order to do that, he has 0:02:43.240 --> 0:02:46.359 to waive his attorney client privilege with his lawyer and 0:02:46.440 --> 0:02:49.240 put his lawyer on the stand to talk about the 0:02:49.240 --> 0:02:51.760 advice that his lawyer gave him. That's a bit of 0:02:51.760 --> 0:02:55.799 a risky proposition because it opens up to prosecutors any 0:02:55.800 --> 0:02:59.040 conversation that Bandon may have had was his attorney during 0:02:59.080 --> 0:03:02.639 the scope of the rep presentation. But ultimately prosecutors will 0:03:02.680 --> 0:03:06.680 have to show that his reliance on executive privilege was 0:03:06.800 --> 0:03:10.320 not a good faith defense and that he was simply 0:03:10.440 --> 0:03:14.600 trying to avoid his obligation to testify, rather than relying 0:03:14.639 --> 0:03:17.359 on his lawyer's advice that he didn't have to testify 0:03:17.440 --> 0:03:21.239 based upon executive privilege. I suppose that's what his current 0:03:21.360 --> 0:03:24.880 lawyer was referring to outside the courthouse when he said 0:03:25.320 --> 0:03:28.160 Mr Bannon is a lay person when the privilege has 0:03:28.200 --> 0:03:30.760 been invoked by the purported holder of privilege, he has 0:03:30.800 --> 0:03:33.880 no choice but to withhold the documents and said that 0:03:33.960 --> 0:03:36.680 his lawyer told him to do so. Well, that's the 0:03:36.680 --> 0:03:40.840 only partially true, because executive privilege, while it may be 0:03:40.920 --> 0:03:43.400 in question in this case, is something that is not 0:03:43.520 --> 0:03:46.880 asserted in a blanket fashion. In other words, he should 0:03:46.880 --> 0:03:49.920 have appeared before the committee, his lawyer should have negotiated 0:03:49.920 --> 0:03:52.640 with the committee to try to work around his claim 0:03:52.680 --> 0:03:55.400 of executive privilege. And if he is going to assert 0:03:55.480 --> 0:03:58.240 executive privilege, or any other privilege for that matter, he 0:03:58.320 --> 0:04:01.440 has to do it on a question by question basis 0:04:01.560 --> 0:04:05.160 or a document by document basis. It's not appropriate to 0:04:05.160 --> 0:04:08.400 assert a privilege simply by failing to appear, or in 0:04:08.440 --> 0:04:10.840 this case, he didn't even show up when he was 0:04:10.880 --> 0:04:14.720 supposed to testify and only later asserted the privilege. And 0:04:14.720 --> 0:04:17.679 in doing so, you simply cannot say that I'm asserting 0:04:17.720 --> 0:04:20.920 privilege as to all questions that may be asked when 0:04:20.960 --> 0:04:23.760 I appear before the committee, because the committee could certainly 0:04:23.760 --> 0:04:26.520 ask him questions that are not covered by the executive 0:04:26.520 --> 0:04:29.280 privilege or any other privilege, and he has an obligation 0:04:29.320 --> 0:04:31.839 to show up and answer those questions. And if he 0:04:31.839 --> 0:04:33.880 wants to assert privilege. It should be done on a 0:04:34.000 --> 0:04:37.680 question by question or document by document basis. There are 0:04:37.680 --> 0:04:40.440 a couple of things going on. He hasn't worked at 0:04:40.440 --> 0:04:44.039 the White House for years, and he has refused to 0:04:44.080 --> 0:04:48.080 answer any questions that the committee wants to ask him. 0:04:48.120 --> 0:04:50.080 So there are some questions that are going to be 0:04:50.200 --> 0:04:54.920 outside things he discussed with Donald Trump. Well, that's exactly right, 0:04:54.960 --> 0:04:57.320 and that's the reason why we have not seen an 0:04:57.320 --> 0:05:01.440 indictment on contempt of Congress charges in this country since 0:05:01.600 --> 0:05:05.520 nine three. It's just not something that happens very often 0:05:05.760 --> 0:05:08.880 because it's a messy power. It's something that's not used 0:05:08.880 --> 0:05:12.960 by Congress frequently. Instead, what happens is there's usually a 0:05:12.960 --> 0:05:16.200 bit of a negotiation. The lawyer for the witness reaches 0:05:16.240 --> 0:05:18.400 out to the lawyers on the committee and they try 0:05:18.480 --> 0:05:21.800 to negotiate around these privileged claims. That's something that we've 0:05:21.839 --> 0:05:25.040 seen the other witnesses who have been subpoena to testify 0:05:25.080 --> 0:05:28.320 before the committee try to do. In this case, Bannon, 0:05:28.440 --> 0:05:32.120 simply stone Wall of the Committee, did not cooperate, did 0:05:32.120 --> 0:05:36.080 not respond, his lawyer, did not engage, simply try to 0:05:36.160 --> 0:05:41.080 assert a blanket privileged claim, and flatly refused to cooperate 0:05:41.120 --> 0:05:44.680 in any manner. He was essentially begging the Committee to 0:05:44.720 --> 0:05:48.839 make this referral and testing Merrick Garland as to whether 0:05:48.920 --> 0:05:51.839 or not he would do something that hadn't been done 0:05:52.040 --> 0:05:54.200 in many, many years, and that is to indicte him 0:05:54.240 --> 0:05:57.480 for criminal contempt for failing to appear before Congress. Could 0:05:57.560 --> 0:06:01.280 this backfire on the committee? Well? Could backfire in the 0:06:01.400 --> 0:06:05.000 sense that this will be a long drawn out process. 0:06:05.080 --> 0:06:08.080 This is now a criminal case where motions will be 0:06:08.120 --> 0:06:12.120 filed and there will be discovery exchanged, and ultimately, if 0:06:12.320 --> 0:06:16.000 Mr Bannon takes this to the final hour, it will 0:06:16.040 --> 0:06:19.479 be a trial which may not happen for months or 0:06:19.560 --> 0:06:22.400 even over a year. And the problem that the House 0:06:22.400 --> 0:06:25.240 Committee is facing is that they are under a bit 0:06:25.279 --> 0:06:29.200 of a timeline here because the mid term elections could 0:06:29.279 --> 0:06:33.360 ultimately turn the House over from the Democrats to the Republicans, 0:06:33.520 --> 0:06:36.760 and that would undoubtedly end the life of this committee, 0:06:37.000 --> 0:06:41.880 and the House could then simply withdraw the subpoena. The 0:06:41.920 --> 0:06:46.359 unofficial deadline for this is the twenty two mid term elections, 0:06:46.400 --> 0:06:50.359 because the Committee will probably be disbanded after that. But 0:06:50.839 --> 0:06:54.640 that doesn't mean the prosecution against Bannon stops, does it. 0:06:54.800 --> 0:06:57.880 That's in the hands of the Justice Department. No, that's right. 0:06:58.200 --> 0:07:00.640 It simply means that it could take a long time 0:07:00.760 --> 0:07:04.560 before the Banning cases ultimately resolved through the legal system. 0:07:04.600 --> 0:07:08.120 The last time we saw someone challenge a congressional subpoena 0:07:08.200 --> 0:07:11.840 during the Trump administration, former White House Council Donagan was 0:07:11.880 --> 0:07:17.160 subpoenaed by the House Judiciary Committee in April of Ultimately, 0:07:17.160 --> 0:07:20.520 he did not testify for over two years later, so 0:07:20.560 --> 0:07:22.840 this could be a long drawn out process, and in 0:07:22.920 --> 0:07:25.400 the end, it's not even clear that they will get 0:07:25.440 --> 0:07:29.080 Banning to testify because the contempt would simply put him 0:07:29.080 --> 0:07:31.880 in jail for a minimum of one month and up 0:07:31.920 --> 0:07:34.040 to a year on each of the two counts, but 0:07:34.160 --> 0:07:37.520 it's still does not force him to appear before the 0:07:37.520 --> 0:07:41.560 committee to testify, and at the midterm elections, should the 0:07:41.600 --> 0:07:45.640 House turn over to the Republicans, the committee would likely 0:07:45.680 --> 0:07:48.200 be disbanded and there would be no committee left for 0:07:48.280 --> 0:07:51.280 him to be forced to testify in front of. Even 0:07:51.280 --> 0:07:54.840 the committee members are saying that doing this is sort 0:07:54.880 --> 0:07:59.160 of a warning to other people who might choose to 0:07:59.160 --> 0:08:04.040 defy the committee requests for information, and former Trump White 0:08:04.040 --> 0:08:07.400 House Chief of Staff Mark Meadows failed to appear for 0:08:07.440 --> 0:08:11.160 a deposition on Friday, and he said that he's exerted 0:08:11.200 --> 0:08:14.560 and rightfully so his executive privilege and it's not up 0:08:14.600 --> 0:08:16.920 to me to wave it. And so it's got me 0:08:16.960 --> 0:08:20.920 between a rock and a hard space. Does President Trump 0:08:20.960 --> 0:08:23.760 have any real hold on him with these claims of 0:08:23.840 --> 0:08:30.240 executive privilege, Well, the privilege belongs to the executive branch. 0:08:30.520 --> 0:08:32.960 So the question here is whether it belongs to the 0:08:33.000 --> 0:08:36.800 current White House. President Biden has waived executive privilege to 0:08:36.840 --> 0:08:40.320 allow the committee to continue its investigation, or whether or 0:08:40.320 --> 0:08:44.480 not the former president still has some residual privilege that 0:08:44.520 --> 0:08:47.960 he can assert. There actually is some legal president for 0:08:48.200 --> 0:08:52.080 some limited privilege for a president even after he left office, 0:08:52.360 --> 0:08:55.120 So that issue will have to ultimately be decided by 0:08:55.120 --> 0:08:58.160 the courts and in the interim. Mark Meadows, who was 0:08:58.240 --> 0:09:01.200 President Trump's chief of staff, who was working in the 0:09:01.240 --> 0:09:04.800 White House on January six, is taking the position that 0:09:04.920 --> 0:09:08.079 that issue has to be resolved before he can come 0:09:08.120 --> 0:09:11.400 before Congress and testify. But he has taken a very 0:09:11.400 --> 0:09:14.960 different approach than Bannon. He has engaged with the committee, 0:09:15.160 --> 0:09:17.480 his lawyer has engaged with the committee. They have attempted 0:09:17.520 --> 0:09:21.199 to work out some areas of inquiry that he could answer, 0:09:21.320 --> 0:09:24.160 some documents that he could turn over. That is the 0:09:24.200 --> 0:09:27.800 way these things typically go forward. It's really a situation 0:09:27.840 --> 0:09:31.200 with Steve Bannon where he is almost begging Congress to 0:09:31.200 --> 0:09:34.200 hold him in contempt and almost begging the Department of 0:09:34.240 --> 0:09:36.960 Justice to indict him. So in some ways he got 0:09:37.000 --> 0:09:39.720 exactly what he asked for. But in the end, will 0:09:39.720 --> 0:09:43.000 it force Bannon to testify? Probably not. Bannon is wearing 0:09:43.040 --> 0:09:46.040 this indictment like a badge of honor. It's something that 0:09:46.240 --> 0:09:49.440 he not only was inviting but now seems to be 0:09:49.520 --> 0:09:53.120 reveling in. And ultimately, if he's convicted, he may spend 0:09:53.120 --> 0:09:55.200 some time in jail, but there's no way to force 0:09:55.280 --> 0:09:58.040 him to appear before that committee and give testimony. Well, 0:09:58.040 --> 0:10:00.679 he came to the courthouse with his own camera crew, 0:10:01.679 --> 0:10:05.560 so he's enjoying this and he's using it to pump 0:10:05.679 --> 0:10:11.080 up his podcast. So now Mark Meadows, the committee said 0:10:11.679 --> 0:10:15.079 in a statement that he failed to show. He's refused 0:10:15.080 --> 0:10:18.800 to even indicate whether he used a personal cell phone 0:10:18.840 --> 0:10:23.400 on January six, and how lawmakers might retrieve his text messages. 0:10:23.760 --> 0:10:27.160 So it doesn't sound like it's much cooperation going on. 0:10:27.640 --> 0:10:30.000 I know it is, and it's more than Bannon and 0:10:30.200 --> 0:10:34.720 his lawyer engaged, and but he's still essentially refusing to cooperate. 0:10:34.960 --> 0:10:37.960 The problem is that the case against Meadows is not 0:10:38.120 --> 0:10:41.280 quite as strong as it is against Bannon because Meadows 0:10:41.440 --> 0:10:43.840 was working in the White House at the time, and 0:10:44.000 --> 0:10:46.880 much of the questioning to Meadows has to do with 0:10:46.960 --> 0:10:50.160 advice that he may have given to the President on 0:10:50.280 --> 0:10:53.480 January six, although it's also clear from the subtina that 0:10:53.480 --> 0:10:56.440 went to Mark Meadows that the committee is also seeking 0:10:56.520 --> 0:11:00.560 information not only about the January six insurrection, but also 0:11:00.600 --> 0:11:04.480 about events that happened subsequently, which as the President's phone 0:11:04.480 --> 0:11:07.880 call to the Secretary of Stating Georgia after the election, 0:11:08.120 --> 0:11:11.640 and some other steps that were taken after the election 0:11:11.880 --> 0:11:14.760 to try to influence the outcome to try to prevent 0:11:15.040 --> 0:11:19.040 President Biden's election from being certified. So it's abroad subtoena, 0:11:19.480 --> 0:11:22.040 but all in all, it still falls within the question 0:11:22.080 --> 0:11:25.960 of whether or not the president can assert executive privilege 0:11:25.960 --> 0:11:28.760 when he's no longer in office, and that's what Mark 0:11:28.800 --> 0:11:32.480 Meadows is relying on in trying to delay any appearance 0:11:32.559 --> 0:11:35.640 before this committee. And yet he appeared on TV and 0:11:35.679 --> 0:11:37.720 what he said to was you and I both know 0:11:37.800 --> 0:11:39.960 that no one in the West Wing had any knowledge 0:11:39.960 --> 0:11:43.120 of anything like what happened on January six was going 0:11:43.160 --> 0:11:45.800 to happen. I wonder if he's making his case in 0:11:45.920 --> 0:11:49.120 public to tell the committee I don't know anything. Well. 0:11:49.160 --> 0:11:51.560 I think he is trying to signal to the committee 0:11:51.600 --> 0:11:54.480 that there's nothing really there for him to testify about. 0:11:54.880 --> 0:11:57.480 But again, he has to appear before the Committee and 0:11:57.559 --> 0:12:00.280 try to assert the claims of executive privilege on a 0:12:00.360 --> 0:12:02.720 question by question. Bass is something that he has not 0:12:02.840 --> 0:12:05.680 yet agreed to do. We'll have to see how that 0:12:05.720 --> 0:12:09.240 plays out, but ultimately I think the Committee will likely 0:12:09.280 --> 0:12:12.600 come to some compromise position with Mark Meadows, because they're 0:12:12.640 --> 0:12:15.560 really not in a position to seek criminal contempt charges 0:12:15.840 --> 0:12:19.559 against witness after witness after witness. It's something that is 0:12:19.600 --> 0:12:22.640 done very rarely, and it is really more of a 0:12:22.679 --> 0:12:26.400 surgical kind of attack on a particular witness who refuses 0:12:26.440 --> 0:12:28.640 to cooperate. It's not something that can be done in 0:12:28.640 --> 0:12:32.600 a wholesale manner against a group of witnesses who are 0:12:32.640 --> 0:12:36.480 simply refusing to cooperate with the investigation. I know they're 0:12:36.520 --> 0:12:40.640 working under tight deadlines here, but why so many subpoenas 0:12:40.840 --> 0:12:45.200 and is that a good strategy. The Committee has argued 0:12:45.240 --> 0:12:48.920 that subpoenaing thirty five people and interviewing over a hundred 0:12:49.000 --> 0:12:53.120 fifty people was necessary in order to fully investigate the 0:12:53.200 --> 0:12:56.400 events of January six on the days leading up to 0:12:56.440 --> 0:12:59.480 that insurrection. But it is a bit of a risky 0:12:59.520 --> 0:13:03.599 strategy by the Committee because in issuing thirty five subpoenas, 0:13:03.600 --> 0:13:08.240 it's possible that more individuals may simply refuse to cooperate, 0:13:08.559 --> 0:13:11.920 and the Committee cannot hold them all in criminal contempt 0:13:12.200 --> 0:13:15.120 and refer all those cases over to the Justice Department 0:13:15.280 --> 0:13:19.000 and expect Attorney General Merrick Garland to prosecute all of them. 0:13:19.200 --> 0:13:21.040 So in some ways, it is a bit of a 0:13:21.160 --> 0:13:24.360 risky strategy by casting such a broad net and by 0:13:24.360 --> 0:13:27.520 subpoenaing so many individuals. Will have to see how that 0:13:27.640 --> 0:13:30.040 ultimately plays out. So far, they have gotten quite a 0:13:30.040 --> 0:13:32.680 few people to cooperate, and we don't know how many 0:13:32.720 --> 0:13:36.640 of those thirty five people who received subpoenas have cooperated, 0:13:37.000 --> 0:13:39.480 But it could backfire on them if a number of 0:13:39.520 --> 0:13:42.840 individuals simply refused to cooperate. Because it's as a practical matter, 0:13:43.000 --> 0:13:45.880 it's going to be impossible for the Committee to enforce 0:13:45.960 --> 0:13:49.320 every one of those subpoenas. So, Bob, as you said, 0:13:49.440 --> 0:13:54.640 contempt of Congress charges are rare and politically messy, something 0:13:54.800 --> 0:13:59.520 the Justice Department hasn't pursued since three Give us a 0:13:59.559 --> 0:14:02.600 little of the history here. The road that we're seeing 0:14:02.640 --> 0:14:05.240 Congress go down with regard to Steve Bowden is something 0:14:05.280 --> 0:14:08.480 that Congress does not take lightly and frankly does not 0:14:08.640 --> 0:14:12.000 engage in very often. It happens only and frequently. The 0:14:12.080 --> 0:14:15.040 last time there was a successful prosecution that goes all 0:14:15.080 --> 0:14:18.079 the way back to the Watergate era, when g. Gordon 0:14:18.200 --> 0:14:21.680 Lady and Richard Klindiats were convicted and pleaded guilty for 0:14:21.760 --> 0:14:26.160 refusing to answer Congressional inquiries. The last indictment we saw 0:14:26.600 --> 0:14:29.600 in the contempt of Congress case was three decades ago, 0:14:29.760 --> 0:14:34.120 involving a federal environmental official under President Ronald Reagan who 0:14:34.160 --> 0:14:37.560 failed to respond to a House subpoena. The official, Redal Lavelle, 0:14:37.800 --> 0:14:40.280 who headed the super fun would ultimately go on to 0:14:40.280 --> 0:14:43.280 be acquitted of the contempt charge, but was later convicted 0:14:43.560 --> 0:14:46.000 of lying to Congress and sentenced to six months in 0:14:46.040 --> 0:14:49.800 prison and find ten thousand dollars, But the Justice Department 0:14:49.840 --> 0:14:54.760 historically has been very wary of prosecuting these cases, particularly 0:14:54.760 --> 0:14:58.640 in a situation where the witnesses who are being subpoenaed 0:14:58.880 --> 0:15:01.440 and who are being held in contempt are of the 0:15:01.480 --> 0:15:04.680 opposite political party from the House on the Department of 0:15:04.840 --> 0:15:08.640 Justice that may be considering prosecuting them. And that's because 0:15:08.640 --> 0:15:11.440 this whole process has a bit of a history of 0:15:11.520 --> 0:15:18.000 being fraught with political overtones. Congress use contempt citations during 0:15:18.000 --> 0:15:21.040 the House an American Activities Committee which was formed in 0:15:21.160 --> 0:15:26.440 nineteen thirty eight to investigate individuals and organization first aversive activities, 0:15:26.640 --> 0:15:29.600 particularly those related to the Communist Party. That was a 0:15:29.640 --> 0:15:32.280 case in which many people in the film industry went 0:15:32.360 --> 0:15:37.160 to prison rather than testify about their colleagues who may 0:15:37.200 --> 0:15:42.080 have exhibited support for communist or communist leaning organizations. They 0:15:42.120 --> 0:15:45.240 were blacklisted for their failure to cooperate and is something 0:15:45.280 --> 0:15:46.680 that has been a bit of a stain on the 0:15:46.680 --> 0:15:49.640 House of represented it ever since. So it's something that 0:15:49.720 --> 0:15:53.160 has not been used much in recent years. Inspect during 0:15:53.160 --> 0:15:56.640 the Obama administration, the Department of Justice declined to prosecute 0:15:56.720 --> 0:15:59.960 an Attorney General Eric Holder and former I R. S 0:16:00.040 --> 0:16:05.920 official Lewis Larner following contempt referrals from the Republican led House. Similarly, 0:16:06.000 --> 0:16:10.000 George W. Bush's Justice Department declined to charge Harriet Myers 0:16:10.120 --> 0:16:13.000 after the former White House Council defied a subpoena in 0:16:13.080 --> 0:16:17.119 a Democratic investigation into mass firings of United States attorneys. 0:16:17.520 --> 0:16:20.640 In all, the House has brought five criminal contempt and 0:16:20.760 --> 0:16:24.920 three civil contempt actions against Executive Branch officials since two 0:16:24.920 --> 0:16:28.040 thousand and eight, and in each case the Executive Branch 0:16:28.240 --> 0:16:31.920 the Department of Justice has refused to pursue those cases criminally. 0:16:32.280 --> 0:16:34.840 Thanks for being on the Bloomberg Lass Show, Bob That's 0:16:34.880 --> 0:16:39.640 former federal prosecutor Robert Mints, a partner at McCarter and English. 0:16:40.160 --> 0:16:43.480 Texas schools can once again set their own mask rules. 0:16:43.600 --> 0:16:46.560 After a loss for Governor Greg Abbott in the first 0:16:46.600 --> 0:16:50.800 federal court ruling over his anti mask crusade, Federal Judge 0:16:50.880 --> 0:16:55.520 Lee Jaco permanently blocked Abbot's edict banning school mask mandates, 0:16:55.880 --> 0:16:58.880 ruling it was a violation of disabled students right to 0:16:59.000 --> 0:17:03.520 equally access educational facilities. Joining me is Tom Melsheimer, a 0:17:03.560 --> 0:17:07.199 partner at Winston and Strong who represented the students at trial, 0:17:07.600 --> 0:17:10.520 tell us. Your main argument to the judge, Well, we 0:17:10.600 --> 0:17:15.199 represented a group of students with disabilities who were challenging 0:17:15.800 --> 0:17:21.760 Governor Abbot's executive order banning mask mandates in public schools. 0:17:21.840 --> 0:17:25.439 And the argument that we made successfully was that the 0:17:25.600 --> 0:17:30.120 order restricting the use of mass mandates violated the Americans 0:17:30.240 --> 0:17:35.199 with Disabilities Act and related statutes because it prevented school 0:17:35.240 --> 0:17:40.600 districts from making reasonable accommodations to assist students with disabilities 0:17:40.720 --> 0:17:43.560 get the full benefits of an in person education. So 0:17:43.760 --> 0:17:47.359 it really starts with the premise that in person education 0:17:47.680 --> 0:17:50.560 is what every student is entitled to, and that there 0:17:50.600 --> 0:17:53.800 are strong benefits to in person education that cannot be 0:17:53.920 --> 0:17:58.560 duplicated virtually or online, and that to say that the 0:17:58.720 --> 0:18:02.600 disabled students, to extent they had hyped fears or risk 0:18:02.680 --> 0:18:05.360 of COVID, to say that they could simply stay home 0:18:05.480 --> 0:18:08.399 and take classes vertually, that's not an answer under the 0:18:08.480 --> 0:18:11.720 law and under the Americans with Disabilities Acts. So the 0:18:11.960 --> 0:18:16.480 whole premise was that kids with disabilities were entitled to 0:18:17.000 --> 0:18:21.880 at least ask for mask requirements, and school districts were 0:18:22.040 --> 0:18:26.520 entitled to consider them as a reasonable accommodation, and the 0:18:27.240 --> 0:18:33.080 governor's order preventing that basically interfered with and violated the 0:18:33.320 --> 0:18:37.600 civil rights of these of these disabled kids. The governor's ordered. 0:18:37.760 --> 0:18:42.080 Was there an order specifically relating to schools. Yes, well, 0:18:42.160 --> 0:18:46.480 actually the order barred all all kinds of mass mandates 0:18:46.480 --> 0:18:51.080 and public settings, including school districts, and so we were 0:18:51.119 --> 0:18:55.080 focused on the application of it in the public schools. 0:18:55.720 --> 0:18:59.720 What was the argument that the state made. Well, the 0:19:00.080 --> 0:19:04.919 legal argument they made was interesting, and so let me 0:19:05.000 --> 0:19:09.160 say what they didn't say. They didn't challenge that masking 0:19:09.320 --> 0:19:12.879 was effective at mitigating the risk of COVID. They didn't 0:19:12.960 --> 0:19:17.439 challenge that the disabled kids were at higher risk of 0:19:18.000 --> 0:19:21.439 side effects and bad consequences from COVID. They didn't challenge 0:19:21.440 --> 0:19:26.880 any of that. They basically argued that our clients lacked 0:19:27.080 --> 0:19:32.879 standing to sue to block enforcement of disorder. And this 0:19:32.920 --> 0:19:36.480 is where it gets tricky because the state says this 0:19:36.800 --> 0:19:42.719 order doesn't have an enforcement mechanism. It doesn't delegate enforcement 0:19:42.800 --> 0:19:45.760 of the order to say, the Attorney General or to 0:19:46.800 --> 0:19:50.760 the local district attorney or whatever. It doesn't say anything 0:19:50.800 --> 0:19:55.080 about who enforces. It just says you can't have mass mandates, 0:19:55.280 --> 0:19:57.439 and if you have a mass mandate, you're subject to 0:19:57.520 --> 0:20:01.600 a ten thou a day five, Okay, And they said, well, 0:20:01.840 --> 0:20:06.240 you can't sue in federal court the Attorney General because 0:20:06.280 --> 0:20:11.000 he's not specifically authorized to enforce the statute. So you're 0:20:11.040 --> 0:20:15.920 suing the wrong person essentially. Now our decision was, wait 0:20:15.920 --> 0:20:19.479 a minute, the Attorney General is out there suing school 0:20:19.520 --> 0:20:22.800 districts for violating g. A thirty eight. I mean, he's 0:20:22.840 --> 0:20:27.280 sending threatening letters to school districts. He's filing lawsuits seeking 0:20:27.280 --> 0:20:31.760 injunctive relief to prohibit the use of mass mandates. So 0:20:32.040 --> 0:20:35.320 what is he doing if not enforcing it? This is 0:20:35.359 --> 0:20:37.800 the you know, it looks like a duck and cracks 0:20:37.840 --> 0:20:39.920 like a duck and walks like a duck. It's a duck. 0:20:40.200 --> 0:20:43.240 But the state took the position that that doesn't matter 0:20:43.320 --> 0:20:46.520 the fact that the Attorney journal was suing to enforce 0:20:46.640 --> 0:20:48.960 the anti mass mandate, the fact that he was threatening 0:20:49.080 --> 0:20:53.040 school districts. If he didn't have the authority in the 0:20:53.160 --> 0:20:57.240 regulation or order itself, he couldn't be sued. And that 0:20:57.359 --> 0:21:00.720 was really the gist of their argument. The Department of 0:21:00.800 --> 0:21:05.600 Justice wigh in. They did. They weighed in on the 0:21:05.680 --> 0:21:10.159 issue of violation of the Americans with Disabilities Act. In 0:21:10.280 --> 0:21:14.160 the in the use of masking as a reasonable accommodation. 0:21:14.160 --> 0:21:18.080 I mean, we look, we argued that masking was really 0:21:18.119 --> 0:21:22.119 no different from ramps. That you imagine you had a 0:21:22.680 --> 0:21:27.000 state order or regulation or executive order that said school 0:21:27.040 --> 0:21:30.239 diserts can't have ramps. Now we would say, we'll wait 0:21:30.280 --> 0:21:33.240 a minute, shouldn't the school districts have the ability to 0:21:33.600 --> 0:21:36.840 use ramps if they had students in wheelchairs or students 0:21:36.920 --> 0:21:40.520 that needed assistance in assessing the school or particular part 0:21:40.520 --> 0:21:43.880 of the school. And that's really what the Justice Department 0:21:43.920 --> 0:21:46.199 weighed in on as well. It's just saying, look, this 0:21:46.359 --> 0:21:49.760 is a reasonable accommodation that the students ought to be 0:21:49.880 --> 0:21:53.000 entitled to. The other thing that is important that I 0:21:53.040 --> 0:21:55.960 don't think everyone fully appreciates. And the state tried to 0:21:56.240 --> 0:21:59.040 argue that we were making this point when we were not, 0:21:59.240 --> 0:22:01.960 which is the was not a case where we're arguing 0:22:02.119 --> 0:22:04.280 that you had to have mass mandates. We were not 0:22:04.480 --> 0:22:07.600 arguing for universal masking. We were not saying that the 0:22:07.680 --> 0:22:12.240 only way to mitigate COVID for disabled students is masking. 0:22:12.359 --> 0:22:14.680 We weren't saying that. We simply were saying that you 0:22:14.840 --> 0:22:19.520 can't take that out of the arsenal of weapons against COVID. 0:22:19.560 --> 0:22:22.680 And if you do that, it's akin to saying it 0:22:22.760 --> 0:22:25.679 can't have ramps and schools, and it's taking out an 0:22:25.680 --> 0:22:29.160 accommodation that ought to be available to the schools if 0:22:29.200 --> 0:22:32.359 they choose to enact it. So tell us about the 0:22:32.440 --> 0:22:36.440 judges ruling. Well, again, he took note to the fact 0:22:36.520 --> 0:22:40.040 that the state did not question the risk of COVID 0:22:40.080 --> 0:22:43.320 in the schools. The state did not question the risk 0:22:43.400 --> 0:22:47.040 of COVID two children with disabilities, The state did not 0:22:47.280 --> 0:22:52.000 challenge your question the efficacy of masking. And given those 0:22:52.240 --> 0:22:56.320 in effect agreed to or stipulated facts, he concluded that 0:22:56.600 --> 0:23:01.119 the executive order of Governor Abbott violated American's disability to 0:23:01.160 --> 0:23:05.200 act because it prevented school districts from offering masking is 0:23:05.240 --> 0:23:08.560 an accommodation. So he had joined the enforcement of it 0:23:08.600 --> 0:23:12.480 by the Attorney General in his injunction prohibits the Attorney 0:23:12.520 --> 0:23:16.320 General from threatening school districts or from suing school districts 0:23:16.600 --> 0:23:20.560 to enforce G. Thirty eight, so called any mass mandate. 0:23:20.880 --> 0:23:23.640 And that's really the seven substance of it. And he 0:23:23.720 --> 0:23:27.480 was the first federal judge to rule on Abbot's mask 0:23:27.600 --> 0:23:32.480 then well, so absolutely the first federal judge in Texas 0:23:32.600 --> 0:23:36.160 to rule on anything with respect to the mass mandate. 0:23:36.240 --> 0:23:39.200 But it's even broader than that. There were a number 0:23:39.200 --> 0:23:43.520 of these challenges brought in federal courts throughout the country, 0:23:43.520 --> 0:23:47.880 in Iowa, in Tennessee, in Florida. A number of these 0:23:47.920 --> 0:23:53.600 cases where governors had issued similar orders purporting to ban 0:23:53.920 --> 0:23:56.960 the use of mass mandates. What was unique about this 0:23:57.160 --> 0:24:00.760 case is that it was a fy an old trial 0:24:00.920 --> 0:24:05.160 on the merits. Those other cases were preliminary matters where 0:24:05.200 --> 0:24:08.520 a group of disabled students or a disabled students rights 0:24:08.560 --> 0:24:13.280 group were seeking preliminary relief or expedited or emergency relief. 0:24:13.720 --> 0:24:17.800 Judge Jakole's ruling in Texas was a full trial on 0:24:17.840 --> 0:24:21.480