Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight and analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud,
Speaker 1: and on Bloomberg dot com slash podcasts. Legal analysts have
Speaker 1: been anticipating that Special Counsel Robert Mueller would be requesting
Speaker 1: an interview with President Trump. It's a natural part of
Speaker 1: the course of Mueller's thorough and painstaking investigation, and now
Speaker 1: several news sources are reporting that the interview could happen
Speaker 1: very soon, possibly within weeks. Trump has said he's willing
Speaker 1: to be interviewed, but his attorneys apparently do not agree.
Speaker 1: They're discussing compromises to avoid an in person encounter between
Speaker 1: Trump and Mueller. According to NBC News, My guest is
Speaker 1: Bradley Moss, a partner at Mark Zaid. Brad is there
Speaker 1: any doubt that the President will have to submit to
Speaker 1: an interview with Mueller under oath or a grand jury
Speaker 1: subpoena will be issued. I think it's pretty fair to
Speaker 1: say that, at least in some context, he's going to
Speaker 1: be questioned. UM a simple responding to written questions isn't
Speaker 1: going to be enough. I can't fathom that Mr Mueller
Speaker 1: would view that as sufficient. Given the nature of this investigation.
Speaker 1: The question, of course becomes, what's the context, how limited
Speaker 1: and restricted are the questions in the topics, and what
Speaker 1: kind of negotiated agreement both the president's personal attorneys and
Speaker 1: Mr Mueller's team um come to beforehand so as to
Speaker 1: make this a voluntary interview under oath, as opposed to
Speaker 1: Mller actually haying to take the steps of issuing a
Speaker 1: grand jury subpoena and bringing the President before a grand jury.
Speaker 1: We should I mention that legally Trump could take the fifth,
Speaker 1: but there's a political risk, correct, I mean, it would
Speaker 1: be political suicide more or less for the President at
Speaker 1: this point to refuse to be interviewed, to take the
Speaker 1: fifth and refuse to answer questions, given how he is
Speaker 1: very broad boldly and broadly and definitively stated there was
Speaker 1: no collusion, there was no crime, there was no obstruction.
Speaker 1: For him to now try to invoke the fifth while
Speaker 1: something he is legally permitted to do would nonetheless look
Speaker 1: horrible from political perception standpoint, I would just devastate him
Speaker 1: in terms of his ability to govern. So let's talk
Speaker 1: now about what you talked about before the format. Let's
Speaker 1: talk a little bit more about that. So you just
Speaker 1: said that you think that Mueller would not accept written
Speaker 1: question and answers. There's the possibility of an open ended
Speaker 1: in person interview or a more restricted in person interview.
Speaker 1: Is he likely to agree to a restricted interview? In
Speaker 1: other words, only certain categories would be brought up. I
Speaker 1: guess it depends on what Mr Muller knows that we
Speaker 1: obviously in the public don't know about. So how much
Speaker 1: information he has already gotten from other depositions, other interviews,
Speaker 1: grand jury testimony that gives him context, and how much
Speaker 1: he truly needs to question the president as opposed to
Speaker 1: simply trying to go up through a narrow scope of
Speaker 1: questions to see how the President responds, but already having
Speaker 1: everything else he already needs in the background context. So I, personally,
Speaker 1: if I were at the president attorneys, I certainly would
Speaker 1: never agree to that open ended interview, especially with a
Speaker 1: client like Donald Trump, who knows where his mind could
Speaker 1: go into this context, who knows how it's go off
Speaker 1: on a tangent. You wouldn't want him to do that.
Speaker 1: So for Mr Mueller, it depends on what he already
Speaker 1: knows and how much he truly needs a certain factual
Speaker 1: information from the President as opposed to just trying to
Speaker 1: get a sense of how the President would answer to
Speaker 1: certain questions. Is it likely that Mueller would do the
Speaker 1: interview himself or have one of his top people do it.
Speaker 1: It's a good question. I think Mueller, out of respect
Speaker 1: for the office, would want to handle it largely hisself,
Speaker 1: as opposed to giving it to one of his dream
Speaker 1: team attorneys. Certainly they could handle it, but I think
Speaker 1: he would want to try to offer some measure of
Speaker 1: respect in the prestige of having it to be the
Speaker 1: special Counsel, not someone else questioning someone with the office
Speaker 1: of the President itself. So I think it would be
Speaker 1: a fair assumption to make that he'll do it himself.
Speaker 1: Many people may not realize that it wasn't just President
Speaker 1: Bill Clinton that submitted to questioning under oath or interviews.
Speaker 1: Um Bill Clinton, George W. Bush, Ronald Reagan, and Gerald
Speaker 1: Ford all either submitted to interviews or testified before a
Speaker 1: grand jury. Why is the testimony before a grand jury
Speaker 1: so much more difficult? Uh? In a grand jury, you
Speaker 1: can't have your lawyers there by and large, So for
Speaker 1: especially with a client left Donald Trump, again, you've got
Speaker 1: to be worried a bit about how he'll answer certain questions,
Speaker 1: whether or not he'll go off on a tangent, if
Speaker 1: he doesn't have his lawyers there to guide him a bit,
Speaker 1: which you do for any client who has that type
Speaker 1: of speaking style. Um. But you also have the issue
Speaker 1: you can Missilian book, the Fifth Amendment to protect to
Speaker 1: protect yourself against the crimination in a grand jury proceeding,
Speaker 1: unlike in any other interview. So it's would be a
Speaker 1: more bigger risk to have the president sit before grand jury.
Speaker 1: I mean Bill Clinton did it. Bill Clinton was a
Speaker 1: trained attorney and he stumbled in a grand jury proceeding.
Speaker 1: So if he's going to stumble, you gotta be worried
Speaker 1: if you're Donald Trump's lawyers about how the president will
Speaker 1: handled it. And look look what that happened after after
Speaker 1: his stumble there, that led to his um the impeachment proceedings. Now,
Speaker 1: and I've had a minute here, what would be the
Speaker 1: top question on your mind if you were Robert Muller,
Speaker 1: what would be the first question you wanted to get answered,
Speaker 1: did you know about the June meeting at Trump Tower?
Speaker 1: And if you did, what was the context of your knowledge?
Speaker 1: You know there are in just about thirty seconds, explain
Speaker 1: the prep for a normal deposition is so rigorous. What
Speaker 1: it the preparation for a deposition like this be? You
Speaker 1: would have to and part of it depends on what
Speaker 1: the client is actually done, But you have to prepare
Speaker 1: them for any number of angles that the prosecutor will
Speaker 1: approach in terms of how they last questions. You have
Speaker 1: to get them to get their answers down to simple,
Speaker 1: concise and direct responses and not to go off on
Speaker 1: a tangent, because that's how you get into trouble. Thank you.
Speaker 1: Bradley Moss, partner at Mark Say did a federal appeals
Speaker 1: courts strike down an FCC decision to preempt state laws
Speaker 1: that restricted the expansion of municipal broadband? That's correct. So
Speaker 1: under the Obama era, FEC attempted to prevent states from
Speaker 1: preventing municipalities from engaging in municipal broadband. So it's basically
Speaker 1: telling states that they couldn't tell their cities not to
Speaker 1: get involved in municipal broadband. And the six Circuit ruled
Speaker 1: that that decision overstepped the boundaries of federal law because
Speaker 1: generally federal agencies don't have the ability to tell states
Speaker 1: what they can and can't do with regard to portions
Speaker 1: of the state apparatus, meaning the municipal governments themselves. That's
Speaker 1: a little bit different, I think than states reaching out
Speaker 1: and trying to regulate private entities like Comcast and Verizon.
Speaker 1: General rules of preemption state that when UH federal and
Speaker 1: state policy directly conflict, the supremacy clause gives the tie
Speaker 1: to the offense. Let's talk about the different ways that
Speaker 1: the states are approaching this. In New York, one bill
Speaker 1: proposed would require internet providers to adhere to net neutrality
Speaker 1: principles to land state contracts. Assemblywoman Patricia Faye He said
Speaker 1: the restrictions would apply even if the behaviors took place
Speaker 1: outside New York. Is that taking the issue a little
Speaker 1: too far? So? I actually think this is the most
Speaker 1: interesting of the many attempts by states to enact net neutrality. Uh.
Speaker 1: What I think is really interesting about it is the
Speaker 1: fact that it's using an indirect method, right, It's not
Speaker 1: telling providers directly that they have to engage in net
Speaker 1: neutral principles, but it's making it a voluntary condition of
Speaker 1: receiving UH state funds that may actually survive general preemption
Speaker 1: rule in the way that direct state legislative command wouldn't.
Speaker 1: But then it raises the problem under the dormant commerce clause,
Speaker 1: whether New York can use these conditions in order to
Speaker 1: reach behavior beyond New York States borders. I think they'd
Speaker 1: be in much better shape if they simply limited the
Speaker 1: condition to UH activities that the companies undertake while in
Speaker 1: New York. So in California, there are two bills, and
Speaker 1: one of them California State Senator Scott Wiener introduced, and
Speaker 1: that would only apply to behavior within the state, So
Speaker 1: that you think has a better chance. I think that's
Speaker 1: probably the best chance of all of them. Um. And
Speaker 1: it's worth noting that it's not the first time that
Speaker 1: states and Feds have clashed over something like US the UH.
Speaker 1: Minnesota attempted about ten years ago to regulate void providers
Speaker 1: like Vontage on the theory that this looks walks and
Speaker 1: talks like a traditional telephone services, it happens to be
Speaker 1: over the Internet rather than over traditional phone lines, and
Speaker 1: so states can regulate UH telephone services should be able
Speaker 1: to regulate void providers as well. UH. The SEC said
Speaker 1: no and tried to preempt state regulation, and ultimately they
Speaker 1: were successful in that. So DAN, with a large state
Speaker 1: like California, no matter what a loss say is about
Speaker 1: it applying only within the state, it can reverberate outside
Speaker 1: the state. And so if there are bills in California
Speaker 1: and New York and let's say Washington, will that affect
Speaker 1: the Internet significantly? Yeah? So it might write because assuming
Speaker 1: that California succeeds in UH tying its funding to the
Speaker 1: practice of net neutral principles while operating within California, you been,
Speaker 1: a company like Verizon would have to UH decide whether
Speaker 1: it's possible to segment its network management practices and practice
Speaker 1: one set of rules in California and another set of
Speaker 1: rules for the rest of the country, or maybe it's
Speaker 1: easier just to apply the California policy across the United States. Right.
Speaker 1: That's why California winds up the facto setting things like
Speaker 1: air quality management standards, right, because they hold auto providers
Speaker 1: to a very strict rule, and companies find it easier
Speaker 1: to manufacture cars across the country to meet California standards
Speaker 1: than to create one set of cars to sell in
Speaker 1: California another for the rest of the nation. And just
Speaker 1: last month, more than a dozen states asked the Supreme
Speaker 1: Court to block a California law that required egg sellers
Speaker 1: to abide by certain guidelines in the treatment of hands.
Speaker 1: So uh, then their argument was that attempts to regulate
Speaker 1: industry in other states. So I guess we'll see where
Speaker 1: that goes. Um. Now, let's talk about the lawsuits that
Speaker 1: are coming. Because the FCC released the final text of
Speaker 1: the net neutrality rule last week, so the lawsuits challenging
Speaker 1: can proceed. New York Attorney General Eric Schneiderman is leading
Speaker 1: a coalition of other states attorneys general in a lawsuit.
Speaker 1: Which has a better chance of success these lawsuits or
Speaker 1: the state laws? That may be a very tough question,
Speaker 1: but yeah, so um, the state legal challenge, I think
Speaker 1: is going to map the legal challenge that Silicon valuing
Speaker 1: other industry players are bringing against it, which look at
Speaker 1: challenge the FCC's action on two grounds. One is the
Speaker 1: legal ground saying the FCC lacked legal authority to reclassify
Speaker 1: broadband as an information service. My sense is that's probably
Speaker 1: a non starter of an argument, given that the SEC
Speaker 1: was simply returning to the rules that governed prior to
Speaker 1: two thousand fifteen. The other UM set of arguments or
Speaker 1: procedural hurdles the idea that if the UM the FEC
Speaker 1: could do what it did, but it did follow the
Speaker 1: appropriate procedural requirements when doing so. Depending on how that
Speaker 1: argument shakes out, that maybe the only chance UM that
Speaker 1: opponents have. But as we saw in the last round
Speaker 1: of these debates, right the administrative law is always stacked
Speaker 1: in the agency's favor. There's a sense that as long
Speaker 1: as the agency is crossing seas and dotting the size
Speaker 1: the way it's supposed to, these types of policy questions
Speaker 1: generally get left to the agency rather than to the
Speaker 1: court to decide. So I think a legal challenge is
Speaker 1: going to be an uphill battle. What about Senator Edward
Speaker 1: Markey from Massachusetts, who's leading an effort to launch a
Speaker 1: Congressional Review Act resolution in an attempt to reverse the
Speaker 1: net neutrality rules that PIPE put into place. Yeah, I
Speaker 1: think as a matter of politics, it's a pretty smart
Speaker 1: move because it's trying to get each member of Congress
Speaker 1: on record is UH discussing whether they are supportive of
Speaker 1: or opposing to the SEC's action. That said, I don't
Speaker 1: expect any substantive change because for the Congressional Review Act
Speaker 1: to succeed, it has to pass both the House and
Speaker 1: the Senate and either be signed by the President or
Speaker 1: have his veto overridden. I don't see the President supporting
Speaker 1: this at all. Dan. More than twenty states introduced broadband
Speaker 1: privacy rules last year in response to Congress's decision to
Speaker 1: roll back Obama era FCC rules that required Internet providers
Speaker 1: to ask permission before collecting personal information for commercial uses.
Speaker 1: How is that going as far as the states? How
Speaker 1: are they succeeding with that? Well? So that's actually much
Speaker 1: more interesting question of federalism because historically we've allowed states
Speaker 1: to experiment with UH data privacy and data security issues
Speaker 1: at the state level that we haven't done with regard
Speaker 1: to things like broadband network management practices. So there's a
Speaker 1: sense in which states have been operating by doing this,
Speaker 1: are operating within the confines of regulatory authority that they've
Speaker 1: traditionally had. That having been said, I think it's possible
Speaker 1: to read the UH recent Net Neutrality Order as preempting
Speaker 1: even some of those as well, because the the language
Speaker 1: of the in the preemption portion of the statute or
Speaker 1: the the order seems to reach really really broadly UH
Speaker 1: to prevent anything that's inconsistent with the SCCS approach here.
Speaker 1: So we'll see all that developed. And dan I mentioned
Speaker 1: that the final rule is out of the final text.
Speaker 1: Have you looked at it to see if it varies
Speaker 1: to any degree from what was proposed? I've not done
Speaker 1: aligned by line comparison, but it looks to me like
Speaker 1: the general thrust of the order UH fits and matches
Speaker 1: what German Pie released just prior to the Thanksgiving break.
Speaker 1: I think to the extent that there's minor variations, it's
Speaker 1: responses to the points made by the dissenting commissioners in
Speaker 1: order to make sure that the order is UH as
Speaker 1: robust as it can be. And in about twenty seconds
Speaker 1: here do you find that the net neutral reality rules
Speaker 1: are now crossing partisan lines, that people are both Republicans
Speaker 1: and Democrats are having problems with the lack of rules.
Speaker 1: So it's UM. I think one of the big points
Speaker 1: that came out was seeing that Nebraska became the first
Speaker 1: Republican leading state to join this state rebellion against the FCC.
Speaker 1: So alright, suggest it. Thank you, Dan, Sorry to have
Speaker 1: to leave it there. Dan Lyons, a professor at Boston
Speaker 1: College Law School. Well, this is Bloomberg. Thanks for listening
Speaker 1: to the Bloomberg Law Podcast. You can subscribe and listen
Speaker 1: to the show on Apple podcast, SoundCloud, and on bloomberg
Speaker 1: dot com slash podcast. I'm June Brosso. This is Bloomberg.