Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 2: We have a trumpeting judge. We have a judge who
Speaker 2: shouldn't be on this case. He's totally conflicted. But this
Speaker 2: is a trial that should never happen. We think we
Speaker 2: have a very conflicted, highly conflicted judge. You shouldn't be
Speaker 2: on the case. And he's rushing this trial and he's
Speaker 2: doing as much as he can for the Democrats. This
Speaker 2: is a Biden inspired witch hunt. It's a political witch hunt.
Speaker 2: It continues, it continues forever, and we're not going to
Speaker 2: be given a fair trial. It's a very very Saturday.
Speaker 3: Donald Trump states his grievance is about the hush money
Speaker 3: trial outside the Manhattan Criminal Court every day before trial
Speaker 3: and after trial. His complaints are basically the same, particularly
Speaker 3: about the trial Judge one Marshawn Jump has made motions
Speaker 3: to get the judge to recuse himself twice to no avail,
Speaker 3: and Judge Marshawn is moving things along to Trump's apparent dismay.
Speaker 3: On day two, seven jurors were sworn in. They are
Speaker 3: an information technology worker, an English teacher and on collogy nurse,
Speaker 3: a sales professional, a software engineer, and in a bit
Speaker 3: of a surprise, two lawyers. The trial is not in
Speaker 3: session on Wednesday, so voadir or jury selection will resume tomorrow.
Speaker 3: Five more jurors and six alternates must be selected before
Speaker 3: opening statements can begin. Joining me is Bloomberg Legal reporter
Speaker 3: Patricia Hurtado, who is covering the trial. Patty, I know
Speaker 3: that hordes of reporters have descended on the courthouse set
Speaker 3: the scene for us.
Speaker 4: There have been several hundred reporters that have come down
Speaker 4: to the courthouse in Lower Manhattan. At least there's not
Speaker 4: the anarchy we've had for Trump's arraignment last April. It's
Speaker 4: much more contained. Security is tight, but it's not like
Speaker 4: the staalanth or a wall of Secret Service agents guarding Trump.
Speaker 4: It's been very quiet and contained. Members of the media
Speaker 4: with a media lawyer's coalition went to the court people
Speaker 4: to get it arranged. So you do have to go
Speaker 4: through two TSA like screenings, and several hundred reporters are there.
Speaker 4: Some celebrity journalists and celebrity lawyers are there, including Kelly
Speaker 4: and Conway's ex husband George Conway has been spotted in
Speaker 4: the overflow courtroom access the Trump is limited because right
Speaker 4: now we're in jury selections, so the room in the
Speaker 4: courtroom can seed about one hundred. They basically put in
Speaker 4: ninety six people of prospective jurors, so only six pool
Speaker 4: reporters have been allowed in the actual courtroom with Donald Trump.
Speaker 3: The judge started with close to one hundred jurors on
Speaker 3: the first day, and half of them were dismissed. Just
Speaker 3: explain that process of.
Speaker 4: Forty two questions questionnaire they have to answer, and right
Speaker 4: off the bat, the judge says, you know, please let
Speaker 4: us know you know about this case and you'd be
Speaker 4: fair and impartial.
Speaker 3: So normally, when duris say they think they can't be
Speaker 3: fair and impartial, the judge just a little more questioning,
Speaker 3: but in this first round he just let them go.
Speaker 4: The judge basically was had ruled the defense wanted them
Speaker 4: all to be explored, like, let's hear what everyone has
Speaker 4: to say why they don't want to be on this case, right,
Speaker 4: and the judge decided that was going to be a
Speaker 4: waste of time. If people were being honest enough to
Speaker 4: say they couldn't be fair, that it would have to
Speaker 4: leave them and take them at face value. Trump's lawyers
Speaker 4: on Monday made an argument that they wanted to hear
Speaker 4: and they made emotion over the weekend that they wanted
Speaker 4: to hear everything everyone had to say, possibly to drag
Speaker 4: out the proceedings right, and the prosecutors basically accused the
Speaker 4: defense and Trump's team of just trying to collect evidence
Speaker 4: so they could have appeal issues.
Speaker 3: Before the questioning of the individual perspective jurors begins, the
Speaker 3: lawyers make introductory statements. Did anything strike you about those statements?
Speaker 4: Yes, And one of the things I was really struck
Speaker 4: with is one of the prosecutors is a long time
Speaker 4: state rackets prosecutor works in the Manhattan DA's office. His
Speaker 4: name is Josh Steinlass. He's really good, and he gave
Speaker 4: what was pretty amazing feel that was like an opening argument,
Speaker 4: and he said something along the lines of, let's all
Speaker 4: admit this. This is a trial. This extraordinary. The defendant
Speaker 4: is a former president of the United States, current candidate
Speaker 4: running for re election. Some of you may not have
Speaker 4: heard about this case and want to run out of
Speaker 4: the courtroom. Let's talk about basically the elephant in the room.
Speaker 4: And it was extraordinary. Many many opening statement he said
Speaker 4: this is case has all these unusual l You have
Speaker 4: a foreign president of the United States running for reelection,
Speaker 4: presumptive Republican nominee in a case involves testimony of an
Speaker 4: adult film actress and a lawyer who worked for Trump
Speaker 4: who has pled guilty. Will let's all admit that that
Speaker 4: this is extraordinary, and then went into but let's explore this,
Speaker 4: putting that aside. Do you have opinions negative about this
Speaker 4: or positive? It was pretty unusual, and I thought it
Speaker 4: was a really good window into what the prosecution is going.
Speaker 3: To be like what was the basic tenor of the
Speaker 3: defense statement?
Speaker 4: The defense statement was done by Todd Blanche and he
Speaker 4: basically wanted to explore, you know, do people have animates
Speaker 4: to Trump? And what do you think of Donald Trump?
Speaker 1: Do you like him?
Speaker 4: Do you really like him? Do you really really like him?
Speaker 4: Or do you really dislike him? And it was all
Speaker 4: on do you like him or not like him? And
Speaker 4: we had a very unusual person who was eventually struck
Speaker 4: last night. He's a resident of Harlem. He was friends
Speaker 4: with some of the Central Park five descendants and said
Speaker 4: that he knew their cousins too, and that he knew
Speaker 4: Donald Trump had taken out an ad some thirty years ago.
Speaker 4: And if people remember what Donald Trump did in the
Speaker 4: nineteen eighty I guess right around the time of the
Speaker 4: nineteen eighty nine attack of the jogger. So this was
Speaker 4: a case where five young black and Latino used were
Speaker 4: charged with raping and brutally assaulting a white woman jogger
Speaker 4: in Central Park, and they were arrested and convicted by
Speaker 4: the Manhattan District Attorney's office, and then they were eventually
Speaker 4: that same DA Robert Morgenthal in two thousand and two
Speaker 4: said they were wrongfully convicted after a nine month investigation
Speaker 4: and they cleared them of all wrongdoing. But these kids
Speaker 4: had been in prisoned, and one of them is now
Speaker 4: a city councilman, he said belong So Trump at the
Speaker 4: time took out a full page ad in many newspapers,
Speaker 4: including my old newspaper of Newsday, basically saying that this
Speaker 4: was an example of how they should reinstate the death penalty.
Speaker 4: And this guy remembered and he started saying, you know, well,
Speaker 4: Trump walks into a room and people pay attention. And
Speaker 4: he also said he didn't read the newspapers because he
Speaker 4: didn't believe them. So eventually guests who struck him the prosecution, yep,
Speaker 4: because it sounded like he might be a guy that
Speaker 4: made believe in conspiracies and also didn't want any information. Plus,
Speaker 4: if he knew that, you know, if the DA's office
Speaker 4: had wrongfully convicted his friends and acquaintances, he may not
Speaker 4: feel too kindly to the DA.
Speaker 3: On Day one, in the afternoon, when it seemed to
Speaker 3: be moving at a glacial pace, there are reports that
Speaker 3: Trump sort of dozed off.
Speaker 4: I was in the overflow courtroom, and I did not
Speaker 4: see that, but I did see him close his eyes
Speaker 4: and lean lifting a little bit. Now, my father used
Speaker 4: to do that when he was elderly, and sometimes he
Speaker 4: was asleep. I don't know that I would say that
Speaker 4: definitively that he was asleep. I also saw at one
Speaker 4: moment where Trump was leaning over talking to Todd Blanche,
Speaker 4: and he kept talking while Blanch was trying to talk,
Speaker 4: and Blanche put his hand up like okay, you know,
Speaker 4: which is kind of extraordinary. But Trump was trying to
Speaker 4: get his ear when Plant was trying to make an
Speaker 4: argument or talk to the prosecutor. So that's not something
Speaker 4: you see every day, but so.
Speaker 3: Did Trump's lawyers really dig into the social media posts
Speaker 3: of prospective jurorsm I mean going back years.
Speaker 2: Yes.
Speaker 4: In fact, there was one woman who was struck. There
Speaker 4: were postings of people celebrating when Joe Biden got elected,
Speaker 4: and she said that she felt it was akin to
Speaker 4: when people celebrated during COVID. Remember when we all went
Speaker 4: out for our stoops and our fire escapes and banged
Speaker 4: on pans to support the healthcare workers. That's what she
Speaker 4: said that this was akin to. It was a celebratory
Speaker 4: moment and it was just New York, you know, having
Speaker 4: its day. But she did say she was driving around, honking,
Speaker 4: spreading the cheer. So the judge interviewed her and asked
Speaker 4: further questions and then decided that she wasn't necessarily being
Speaker 4: as forthcoming as she should have been. So when she said, oh,
Speaker 4: I don't have an opinion about Trump, the judge felt
Speaker 4: that that showed that she had an animus towards Trump.
Speaker 4: Another woman that the Defense struck was an older woman
Speaker 4: who's had an image of Obama and Trump standing together.
Speaker 4: This was a Facebook post from back in twenty seventeen,
Speaker 4: and it said, this isn't what I thought when they
Speaker 4: said orange is the new black with Obama and Trump,
Speaker 4: and then it turned out that was her husband's social
Speaker 4: media post, but she had reposted it. So Da was arguing,
Speaker 4: there are lots of these things that the defense was
Speaker 4: trolling back in time and trying to go through everyone's
Speaker 4: social media account.
Speaker 3: Judge Marshawn experienced judge known for being no nonsense, even tempered,
Speaker 3: but even he shouted at Trump on day two.
Speaker 4: He was angry because they called this young woman in
Speaker 4: about the banging of the pants and the celebratory moment, right,
Speaker 4: and they called her back. And if you can imagine,
Speaker 4: this poor young woman is getting brought in and has
Speaker 4: to stand at the podium. She was twelve feet away
Speaker 4: from Trump, and she started answering the questions, and apparently
Speaker 4: Trump was muttering under his breast and gesticulating, and the
Speaker 4: judge heard it and called out Trump on it. And
Speaker 4: he told a Blanche that he had a controllers client
Speaker 4: and he said he would not tolerate any durors to
Speaker 4: be intimidated. So that's Trump being reprimanded by the judge
Speaker 4: and war.
Speaker 3: Coming up next on the Bloomberg Long Show, I'll continue
Speaker 3: this conversation with Bloomberg legal reporter Patricia Hurtado, just, how
Speaker 3: did two lawyers get on the jury. I'm Jim Grosso
Speaker 3: and you're listening to Bloomberg. Donald Trump has pleaded not
Speaker 3: guilty to thirty four felony counts of falsifying business records
Speaker 3: as part of an alleged effort to keep salacious, and
Speaker 3: he says bogus stories about his sex life from emerging
Speaker 3: during his twenty sixteen campaign. The Manhattan trial is being
Speaker 3: referred to as the hush Money Trial. The first seven
Speaker 3: jurors were sworn in on Tuesday after lawyers grilled the
Speaker 3: jury pool about their social media posts, political views, and
Speaker 3: personal lives. There's already been one sort of dust up
Speaker 3: in the court as judge when Marshawn admonished Trump after
Speaker 3: he spoke loudly and gestured while the judge was questioning
Speaker 3: a woman about a social media post. Marshan said, I
Speaker 3: don't know what he was uttering, but it was audible
Speaker 3: and he was gesturing, and he was speaking in the
Speaker 3: direction of the juror. I won't tolerate that. I will
Speaker 3: not tolerate any jurors being intimidated in this courtroom. For
Speaker 3: his part, Trump has complained about the judge every day,
Speaker 3: accusing him of being biased and rushing the trial, especially
Speaker 3: not allowing Trump to miss court one day next week
Speaker 3: so he can travel to DC for the Supreme Court
Speaker 3: oral argument on the question of his presidential immunity.
Speaker 1: Allow us to go.
Speaker 2: To that and will follow me to leave here for
Speaker 2: half a day, go to DC and go for in
Speaker 2: the United States Supreme Court. Because he makes you superior.
Speaker 2: I guess that the Supreme Court.
Speaker 3: I've been talking to Bloomberg Legal reporter Patricia Hurtado, who's
Speaker 3: covering the trial. Pat did some jurors just refuse to
Speaker 3: give their opinion of Trump?
Speaker 4: I wouldn't say that. I would say that. People would say,
Speaker 4: I don't have an opinion. That's a difference, right. You know,
Speaker 4: there were people who said, I don't have an opinion.
Speaker 4: I don't think any negative things. I just don't have
Speaker 4: an opinion. I don't think about him. And that might
Speaker 4: be disappointing that Trump that people just don't think about him.
Speaker 4: You know, one juror, potential juror, said, I know our
Speaker 4: country is a huge's resting right now on this. What's
Speaker 4: going to happen?
Speaker 3: Jury selections seemed to be going so slowly, even Tuesday morning,
Speaker 3: with the judge just before lunch break expressing some frustration
Speaker 3: that it was taking too long. Then bam, jurors were
Speaker 3: selected one, two, three in the afternoon. What happened to
Speaker 3: speed it up?
Speaker 4: Everybody is expecting jury selection to be like in federal court.
Speaker 4: State court is very deliberative. It's really slow and plotting.
Speaker 4: I covered Harvey Weinstein's trial. It took ten days to
Speaker 4: pick a jury. So that's the kind of thing that
Speaker 4: is very typical. The lawyers that ask questions, they explore,
Speaker 4: the judge limited statements to half an hour for each side,
Speaker 4: and then what happened is, if you can imagine, so
Speaker 4: there were ninety six potential jurors brought in, fifty excused themselves,
Speaker 4: leaving us with forty six, and then they put eighteen
Speaker 4: in the box and they started asking them in the
Speaker 4: jury box what they thought. So that's what took a
Speaker 4: long time, because the individual jurors had to answer, have
Speaker 4: you ever followed any q Andon movements? Do you have
Speaker 4: any stronger opinions or beliefs about the former president? Do
Speaker 4: you believe he shouldn't be criminally charged? You know, forty
Speaker 4: two questions each person. So that's what was taking a
Speaker 4: long time. And then what ended up happening is after
Speaker 4: all those people were vetted, Trump couldn't put off the
Speaker 4: inevitable and couldn't delay it any longer, and they asked
Speaker 4: for more time. Trump's team asked for more time, and
Speaker 4: then they got a lunch break, and then they came back.
Speaker 4: But they had to exercise peremptory challenges and ask them
Speaker 4: some challenge for cause.
Speaker 3: I just want to explain there are two kinds of
Speaker 3: challenges to a juror, for cause and peremptory. And for
Speaker 3: cause is what it sounds like, the attorney has what
Speaker 3: he or she thinks is a legitimate reason to excuse
Speaker 3: the juror. However, the judge has to agree. The other
Speaker 3: kind of challenge is peremptory, and that is for any
Speaker 3: reason except for reasons of race, sex, and the like.
Speaker 3: In this case, the prosecution and defense each have ten
Speaker 3: peremptory challenges, and so far they've each used six, leaving
Speaker 3: them with four peremptory challenges for the selection of five
Speaker 3: more jurors and six alternates. So Patty, after this first
Speaker 3: group of jurors, they brought in a second group.
Speaker 4: They brought in a second group of ninety six, and
Speaker 4: now they're going through those people, which they're going to
Speaker 4: have to get. They have seven feet a juror, and
Speaker 4: they have to get five more to fill the box,
Speaker 4: and then they have to get at least six alternatives.
Speaker 3: Not one, but two lawyers were seeded. And usually neither
Speaker 3: side wants lawyers on the jury because they can insert
Speaker 3: their own legal opinions and the juror is my turn
Speaker 3: to them for that. Is there anything you remember about
Speaker 3: the questioning of the two lawyers.
Speaker 4: Well, both of them seem to do either business law
Speaker 4: or civil litigation. I definitely know jural number seven is
Speaker 4: a white man, a civil litigator who doesn't know anything
Speaker 4: about criminal law. I don't know anything about election finance.
Speaker 4: To the degree that I know, I can put it aside.
Speaker 4: Do you think you should hold Trump to a higher standard? Answer?
Speaker 2: No.
Speaker 4: What are your thoughts on Trump? Answer ambivalent? Some of
Speaker 4: the things I like, some of the things I don't.
Speaker 4: I'm not sure if I have any opinions about his character.
Speaker 4: I'm not sure I know anything about it. I'm a litigator,
Speaker 4: so I take a law seriously, and I will take
Speaker 4: the judges instruction seriously. Another juror, who is number three,
Speaker 4: apparently a young Asian male, says, I'm not actually super
Speaker 4: familiar with these charges or the other charges. I don't
Speaker 4: really follow the use that closely. I'm a little embarrassing
Speaker 4: to stay he won. Duror, a middle aged man, said
Speaker 4: he's during number four quote. I find him fascinating and mysterious.
Speaker 4: He walks into a room and sets people off. He's
Speaker 4: an IT consultant.
Speaker 3: So the judge had set off two weeks for jury selection.
Speaker 3: Now he asked the first seven jurors to report to
Speaker 3: court as soon as Monday. Does that mean that there
Speaker 3: could be opening statements on Monday?
Speaker 4: That's up in the air. He told the people that
Speaker 4: were sworn in as jurors to keep in touch and
Speaker 4: they could come back Monday for opening depending on how
Speaker 4: things go tomorrow and Friday. But if we all member,
Speaker 4: Monday is the first day of passover and one of
Speaker 4: the members of the defense team is observant, so that
Speaker 4: might mean either a shortened day or if someone on
Speaker 4: the panel is observant, then it would be no trial
Speaker 4: on Monday. So all of it's up in the air. Yes,
Speaker 4: opening statements could happen on Monday, but it's really unclear.
Speaker 4: We have to wait and see what transpires tomorrow and Friday.
Speaker 3: So now let's talk about some of the motions before
Speaker 3: jury selection started. So prosecutors asked the judge to find
Speaker 3: Trump three thousand dollars for three social media posts.
Speaker 4: That was the first thing that the prosecution did on Monday,
Speaker 4: which is one of the reasons why jury selection was
Speaker 4: so slow the entire morning session. Instead of picking the
Speaker 4: jury with all on pre trial motions and asking for
Speaker 4: clarification from Judge Mershaan on his prior ruling like, for example,
Speaker 4: should be access, Ali would say can it be played
Speaker 4: or can at least be quoted from? So what they
Speaker 4: prosecution asked for is they felt that recent postings by
Speaker 4: Donald Trump, including over the weekend, were in violation of
Speaker 4: the judge's gag orders from April first, and they're asking
Speaker 4: for Trump to be sanctioned for the three posting and
Speaker 4: to be found in contempt of court. They also cited
Speaker 4: one that posting that apparently the prosecutor said had been
Speaker 4: posted from the courthouse Monday as a fourth example, but
Speaker 4: they weren't including that in their hopper of you know
Speaker 4: in their basket of misbehavior by Trump, and they want
Speaker 4: him to be fined one thousand dollars for each of
Speaker 4: the three earlier social media postings. And they also wanted
Speaker 4: Trump to be warned that if he continues to violate
Speaker 4: this gag order that he could be jailed. So the
Speaker 4: judge is going to have a hearing and schedule that
Speaker 4: for Tuesday.
Speaker 3: The prosecutor in his statement to the jury said that
Speaker 3: some witnesses have some edge, and he described them as
Speaker 3: a tabloid publisher at adult film star in Trump's former lawyer,
Speaker 3: Michael Cohen was convicted of federal crimes. Michael Cohen is
Speaker 3: going to be the star witness, and there have been
Speaker 3: arguments about his testimony already.
Speaker 4: There were discussions about how much they can the limiting
Speaker 4: of the defense and how much they can go after him.
Speaker 4: The judge basically said that it's fair game to raise
Speaker 4: the arguments about his guilty please, but he didn't want
Speaker 4: to make it a mini trial of the federal case
Speaker 4: against Michael Cohen and make it like Michael Cohen's trial
Speaker 4: rather than Donald Trump's trial. So they can raise the
Speaker 4: background issue of Michael Cohen pleading guilty but they can't
Speaker 4: have a mini trial by the defense to basically reopen
Speaker 4: and relitigate what Michael Cohen played guilty in federal court.
Speaker 3: Trump wanted to be off to campaign in quotes on Wednesdays,
Speaker 3: and he also wanted to be excused next week so
Speaker 3: he could attend the arguments before the Supreme Court on
Speaker 3: his presidential immunities.
Speaker 4: The judge was very stirred with him about that because
Speaker 4: his obligation, he said, is you have an obligation in
Speaker 4: this court, not that court, and you're on trial here.
Speaker 4: I mean, it was almost like he said, you don't
Speaker 4: belong in that Supreme Court. You belong in Manhattan Supreme
Speaker 4: Court where you're on trial. And he wasn't going to
Speaker 4: excuse him. He also wanted what was complaining and asked
Speaker 4: Todd blanche, Trump's lead defense lawyer, that his son is
Speaker 4: graduating from school. I believe he had a graduation to
Speaker 4: attend to, and so does mister Trump for Baron Trump,
Speaker 4: And the judge said, well, we'll cross that bridge. Will
Speaker 4: we get to it, but that's in me. One of
Speaker 4: the funnier USA that happened during jury selection. One of
Speaker 4: the potential jurors was a woman who said her friend
Speaker 4: was getting married in September and if she was picked
Speaker 4: for the jury, would that be a problem. Everyone roared
Speaker 4: with laughter, and the judge said, if this trial is
Speaker 4: still going on in September, we'll all have a problem.
Speaker 3: Basically, at least he can still show a sense of
Speaker 3: humor in the face of all this. It's going to
Speaker 3: be interesting to see whether they can finish the jury
Speaker 3: selection this week and get started sometime next week. Thanks
Speaker 3: so much, pat That's Patricia Hurtado, Bloomberg Legal reporter. Coming
Speaker 3: up next on the Bloomberg Lawn Show, We're going to
Speaker 3: be talking about a controversial spy law that the House
Speaker 3: has reauthorized. Will the Senate do the same? I'm June Gross.
Speaker 3: When you're listening to Bloomberg on this vote, the ya's
Speaker 3: are two seventy three, the na's are one forty seven.
Speaker 3: It's in the hands of the Senate now. The House
Speaker 3: of Representatives voted to reauthorize a key part of the
Speaker 3: Foreign Intelligence Serve Valence Act on Friday. The measure allows
Speaker 3: the federal government to eavesdrop without a warrant on foreigners
Speaker 3: in overseas investigations. The FBI Director warned of dire consequences
Speaker 3: if it's not renewed. But its critics were an unusual
Speaker 3: mix of right wing Republicans and Democrats focused on civil liberties,
Speaker 3: both concerned that it sweeps up the data of Americans.
Speaker 3: Here's Republican Representative Jim Jordan of Ohio and Democratic Representative
Speaker 3: Jerry Nadler of New York.
Speaker 5: If they don't follow the exceptions, and they're searching Americans,
Speaker 5: searching your name, your phone number, your email, addressing this
Speaker 5: giant database, that's it's scarce. And if it's a small number,
Speaker 5: then what's the big deal.
Speaker 6: Officials are supposed to find it reasonably likely that a
Speaker 6: query will turn up evidence of a crime or foreign
Speaker 6: intelligence information, but that did not stop them from searching
Speaker 6: for protesters, politicians, and political donors, to name a few
Speaker 6: without proper credicate.
Speaker 3: Joining me is Matthew Waxman, a professor at Columbia Law
Speaker 3: School and former senior official at the State Department, the
Speaker 3: Department of Defense, and the National Security Council. Tell us
Speaker 3: about section seven oh two.
Speaker 1: Sure, so the main FISA statue, the Foreign Intelligence Surveillance Act,
Speaker 1: goes back to the late nineteen seventies. But we're talking
Speaker 1: here about Section seven oh two, which was part of
Speaker 1: a major modernization of that statue in the two thousands,
Speaker 1: and what it allows the government to do is to collect,
Speaker 1: on US soil and with various oversight checks, the electronic
Speaker 1: communications of targeted foreigners abroad, even when those targeted foreigners
Speaker 1: are communicating with Americans. And so to do so, the
Speaker 1: law authorizes the government to order service providers I think
Speaker 1: telecom company or Google to hand over copies of messages
Speaker 1: or calls to or from those targeted foreigners abroad.
Speaker 3: And is the controversial part of this bill, the part
Speaker 3: where in circumstances where Americans are in contact with a
Speaker 3: foreign surveillance target, it sweeps up the data of Americans.
Speaker 3: So why it's controversial, that's right.
Speaker 1: So the statute itself authorizes the government to target foreigners abroad,
Speaker 1: but some of those calls or emails from those targeted
Speaker 1: foreigners abroad are going to be with Americans or people
Speaker 1: here in the United States, and those communications that get
Speaker 1: swept up are often referred to as incidental collection, the
Speaker 1: idea being that the Americans are not the ones being
Speaker 1: targeted foreigners abroad, but oftentimes there are going to be
Speaker 1: some communications with Americans that are collected as well, and
Speaker 1: the biggest controversy is about the FBI's access to those
Speaker 1: incidentally collected communications with Americans.
Speaker 3: It sort of was an unlikely coalition of lawmakers far
Speaker 3: right wing of the Republican Party and Democrats focused on
Speaker 3: civil liberties who were trying to change the law, a
Speaker 3: major change. They wanted to have a warrant requirement.
Speaker 1: As you say, there's a coalition of some strange bedfellows
Speaker 1: who are pushing in Congress for a major reform to
Speaker 1: Section seven zero two, I say a coalition of strange
Speaker 1: bedfellows in that it was members from both the far
Speaker 1: right and the far left. For so long, debates about
Speaker 1: ISSA in Congress were usually between what I might call
Speaker 1: the civil libertarian left and the more hawkish right, as
Speaker 1: well as a lot of members in the center. But
Speaker 1: we've seen the politics of surveillance really shift, and to
Speaker 1: the question of what kind of reform the advocates were
Speaker 1: pushing for, I think the most controversial one was to
Speaker 1: add a warrant requirement. The idea being that every time
Speaker 1: the FBI might want to go into that set of
Speaker 1: incidentally collected communications with Americans in order to the word
Speaker 1: is query that database to look for certain communications within
Speaker 1: that previously collected set the government. The FBI would need
Speaker 1: to go to a court for a warrant and make
Speaker 1: a certain showing in order to then get court permission
Speaker 1: to do that specific query.
Speaker 3: And is getting a warrant so burdensome for the FBI.
Speaker 1: I think some reforms were necessary because there were some
Speaker 1: problems with how the FBI was using the Section seven
Speaker 1: zero two data. But I think a warrant requirement would
Speaker 1: have gone or would go too far. I think that
Speaker 1: for a couple of reasons. First, we're not talking about
Speaker 1: authorizing surveillance here. The surveillance has already been authorized and done.
Speaker 1: And what we're talking about here is the ability of
Speaker 1: the FBI, under certain narrow circumstances to look at that
Speaker 1: information that's already in the government's files. In addition, the
Speaker 1: FBI has already adopted a number of reforms itself since
Speaker 1: some of the problems with seven zho two were exposed.
Speaker 1: But beyond that, I think a warrant requirement would go
Speaker 1: too far. You warrants are by design very burdensome and
Speaker 1: can take time, whereas national security threats move quickly, especially
Speaker 1: in cyberspace. And we're also when it comes to foreign
Speaker 1: intelligence or national security, we're often talking about trying to
Speaker 1: piece together information intelligence in order to determine whether, for example,
Speaker 1: an individual, there's probable cause to believe that an individual
Speaker 1: is engaged in certain types of nefarious conduct. And the
Speaker 1: last point I would just say on this is many
Speaker 1: of the FBI's queries of the seven zero two database
Speaker 1: are related to cybersecurity, especially combating foreign threats like ransomware
Speaker 1: gangs or foreign government agencies that are engaged in in
Speaker 1: fiber attacks, and the FBI needs to move quickly. It
Speaker 1: may need to run a lot of queries in order
Speaker 1: to combat those attacks that weren't.
Speaker 3: Requirement didn't pass in the House. It was a tie vote,
Speaker 3: but section seven oh two did.
Speaker 1: That's right. So the House has reauthorized Section seven oh
Speaker 1: two with a few reforms, not the big controversial one,
Speaker 1: which was the warrant requirement, but with some reforms, and
Speaker 1: the House reauthorized the basic seven oh two authority for
Speaker 1: two years. The cycle had been every five years, but
Speaker 1: as a compromise in the House, it was just a
Speaker 1: two year reauthorization. Now the action switches to the Senate
Speaker 1: to see whether the Senate will pass an identical or
Speaker 1: very similar bill. My best guess is that the Senate
Speaker 1: will maybe even just pass the House's bill and will
Speaker 1: be in a situation where this gets wrapped up quickly
Speaker 1: and sent on to the President for signature.
Speaker 3: So Senator Ron Wyden, a Democrat from Oregon, said this
Speaker 3: bill represents one of the most dramatic and terrifying expansions
Speaker 3: of government surveillance authority in history. I'll do everything in
Speaker 3: my power to stop it from passing in the Senate.
Speaker 1: I think that's a gross exaggeration. I think we are
Speaker 1: talking about a very powerful intelligence tool. But because it's
Speaker 1: so powerful, there were from the beginning a number of
Speaker 1: checks that were built into the system. Those checks have
Speaker 1: been improved over time for good reason. I mean, look,
Speaker 1: the FBI was sloppy with this tool. Reforms were necessary,
Speaker 1: but a lot of those reforms were already taken within
Speaker 1: the executive branch. These were things like reducing which FBI
Speaker 1: officials have access to the database, a stronger reporting requirements,
Speaker 1: stronger penalty for violating those rules. These were sensible reforms
Speaker 1: and needed reforms. And the House bill and what I
Speaker 1: think will likely pass. The Senate will codify and law
Speaker 1: some of these reforms. I think the warrant requirement goes
Speaker 1: too far, and I think Senator Widen is underplaying the
Speaker 1: intelligence imperative behind this tool and exaggerating the dangers of it.
Speaker 3: Can I ask you? There was a letter to House
Speaker 3: and Senate leaders where the Department of Justice confirmed that
Speaker 3: the Administration on March fifth submitted certifications to the PFISA
Speaker 3: Court that, if approved, would authorize Section seven O two
Speaker 3: until April of twenty twenty five.
Speaker 1: So one of the questions throughout this reauthorization process is
Speaker 1: exactly when is the true deadline? When does the program
Speaker 1: actually cease to work? And there's been some shifting in
Speaker 1: that timeline as the Executive Branch, in anticipation of possible
Speaker 1: expiration of the statutory authority, has looked at what are
Speaker 1: some orders that we could speak from the Foreign Intelligence
Speaker 1: Surveillance Court that would extend beyond April twenty twenty four,
Speaker 1: when the statutory authority is set to expire. When might
Speaker 1: we'd be able to get an order that would apply
Speaker 1: beyond the statutory expiration. And there is some good reason
Speaker 1: to believe that the Executive Branch could get some orders
Speaker 1: that extend beyond the deadline next week. I think one
Speaker 1: of the problems for the executive branch is that those
Speaker 1: orders would be on much weaker legal ground, much more
Speaker 1: susceptible to challenge without the reauthorization of the statute. So
Speaker 1: they're absolutely right to push for quick reauthorization, and Congress's
Speaker 1: right to think about at the end of this week's
Speaker 1: as the true deadline.
Speaker 3: Let's say Congress reauthorizes it, then is that the end
Speaker 3: of it? Or is the Piza Court still going to
Speaker 3: go ahead?
Speaker 1: So then the pis A Court would still be charged
Speaker 1: with examining the government's new requests for an order. The
Speaker 1: big difference after Congress passes this bill, as I hope
Speaker 1: they do, is the statutory authority would be extended for
Speaker 1: another two years. As I mentioned before, the previous pattern
Speaker 1: had been that the statute would be authorized for five
Speaker 1: years before it would sunset. This would give the congressional
Speaker 1: overseers more of an opportunity to examine how effectively was
Speaker 1: the system working and how effectively were the ZECHS operation,
Speaker 1: And the original request from the executive branch was that
Speaker 1: Congress reauthorized it for another five years. One of the
Speaker 1: compromises in the House was to keep seven zero two
Speaker 1: pretty much the same, but only extend its authorization for
Speaker 1: another two years, this time so Congress would get another
Speaker 1: bite at this within two years.
Speaker 3: Thanks so much. That's Professor Matthew Waxman of Columbia Law School.
Speaker 3: And that's it for this edition of the Bloomberg Law Podcast.
Speaker 3: Remember you've can always get the latest legal news by
Speaker 3: subscribing and listening to the show on Apple Podcasts, Spotify,
Speaker 3: and at Bloomberg dot com, slash podcast, Slash Law. I'm
Speaker 3: June Grosso and this is Bloomberg