WEBVTT - Mueller Shows Interest in Interviewing Trump (Audio) 0:00:03.480 --> 0:00:07.560 Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every 0:00:07.640 --> 0:00:10.440 day we bring you insight and analysis into the most 0:00:10.480 --> 0:00:13.440 important legal news of the day. You can find more 0:00:13.480 --> 0:00:18.040 episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud, 0:00:18.320 --> 0:00:22.560 and on Bloomberg dot com slash podcasts. Legal analysts have 0:00:22.600 --> 0:00:26.280 been anticipating that Special Counsel Robert Mueller would be requesting 0:00:26.320 --> 0:00:29.159 an interview with President Trump. It's a natural part of 0:00:29.160 --> 0:00:33.240 the course of Mueller's thorough and painstaking investigation, and now 0:00:33.280 --> 0:00:36.360 several news sources are reporting that the interview could happen 0:00:36.640 --> 0:00:40.440 very soon, possibly within weeks. Trump has said he's willing 0:00:40.440 --> 0:00:44.000 to be interviewed, but his attorneys apparently do not agree. 0:00:44.040 --> 0:00:48.720 They're discussing compromises to avoid an in person encounter between 0:00:48.760 --> 0:00:52.199 Trump and Mueller. According to NBC News, My guest is 0:00:52.240 --> 0:00:55.639 Bradley Moss, a partner at Mark Zaid. Brad is there 0:00:55.680 --> 0:00:58.640 any doubt that the President will have to submit to 0:00:58.680 --> 0:01:02.080 an interview with Mueller under oath or a grand jury 0:01:02.120 --> 0:01:05.679 subpoena will be issued. I think it's pretty fair to 0:01:05.680 --> 0:01:08.280 say that, at least in some context, he's going to 0:01:08.520 --> 0:01:13.680 be questioned. UM a simple responding to written questions isn't 0:01:13.720 --> 0:01:16.679 going to be enough. I can't fathom that Mr Mueller 0:01:16.720 --> 0:01:20.080 would view that as sufficient. Given the nature of this investigation. 0:01:20.360 --> 0:01:24.800 The question, of course becomes, what's the context, how limited 0:01:24.840 --> 0:01:28.240 and restricted are the questions in the topics, and what 0:01:28.319 --> 0:01:32.120 kind of negotiated agreement both the president's personal attorneys and 0:01:32.240 --> 0:01:36.280 Mr Mueller's team um come to beforehand so as to 0:01:36.360 --> 0:01:40.240 make this a voluntary interview under oath, as opposed to 0:01:40.640 --> 0:01:43.160 Mller actually haying to take the steps of issuing a 0:01:43.160 --> 0:01:47.000 grand jury subpoena and bringing the President before a grand jury. 0:01:47.240 --> 0:01:50.720 We should I mention that legally Trump could take the fifth, 0:01:50.800 --> 0:01:54.960 but there's a political risk, correct, I mean, it would 0:01:55.000 --> 0:01:58.040 be political suicide more or less for the President at 0:01:58.080 --> 0:02:02.040 this point to refuse to be interviewed, to take the 0:02:02.080 --> 0:02:05.440 fifth and refuse to answer questions, given how he is 0:02:05.600 --> 0:02:09.560 very broad boldly and broadly and definitively stated there was 0:02:09.639 --> 0:02:12.760 no collusion, there was no crime, there was no obstruction. 0:02:12.840 --> 0:02:15.880 For him to now try to invoke the fifth while 0:02:15.960 --> 0:02:19.440 something he is legally permitted to do would nonetheless look 0:02:19.560 --> 0:02:23.639 horrible from political perception standpoint, I would just devastate him 0:02:23.720 --> 0:02:25.919 in terms of his ability to govern. So let's talk 0:02:25.919 --> 0:02:28.600 now about what you talked about before the format. Let's 0:02:28.600 --> 0:02:31.040 talk a little bit more about that. So you just 0:02:31.040 --> 0:02:33.760 said that you think that Mueller would not accept written 0:02:33.840 --> 0:02:37.560 question and answers. There's the possibility of an open ended 0:02:37.639 --> 0:02:42.080 in person interview or a more restricted in person interview. 0:02:42.520 --> 0:02:47.480 Is he likely to agree to a restricted interview? In 0:02:47.520 --> 0:02:51.840 other words, only certain categories would be brought up. I 0:02:51.840 --> 0:02:55.040 guess it depends on what Mr Muller knows that we 0:02:55.120 --> 0:02:57.959 obviously in the public don't know about. So how much 0:02:57.960 --> 0:03:01.720 information he has already gotten from other depositions, other interviews, 0:03:02.160 --> 0:03:05.440 grand jury testimony that gives him context, and how much 0:03:05.480 --> 0:03:09.360 he truly needs to question the president as opposed to 0:03:09.600 --> 0:03:12.480 simply trying to go up through a narrow scope of 0:03:12.560 --> 0:03:15.359 questions to see how the President responds, but already having 0:03:15.360 --> 0:03:19.200 everything else he already needs in the background context. So I, personally, 0:03:19.280 --> 0:03:21.040 if I were at the president attorneys, I certainly would 0:03:21.080 --> 0:03:23.720 never agree to that open ended interview, especially with a 0:03:23.800 --> 0:03:26.839 client like Donald Trump, who knows where his mind could 0:03:26.840 --> 0:03:28.919 go into this context, who knows how it's go off 0:03:28.919 --> 0:03:30.880 on a tangent. You wouldn't want him to do that. 0:03:31.200 --> 0:03:33.480 So for Mr Mueller, it depends on what he already 0:03:33.480 --> 0:03:36.400 knows and how much he truly needs a certain factual 0:03:36.440 --> 0:03:38.600 information from the President as opposed to just trying to 0:03:38.640 --> 0:03:40.440 get a sense of how the President would answer to 0:03:40.480 --> 0:03:43.240 certain questions. Is it likely that Mueller would do the 0:03:43.320 --> 0:03:49.400 interview himself or have one of his top people do it. 0:03:49.400 --> 0:03:53.240 It's a good question. I think Mueller, out of respect 0:03:53.280 --> 0:03:57.440 for the office, would want to handle it largely hisself, 0:03:58.000 --> 0:03:59.760 as opposed to giving it to one of his dream 0:03:59.800 --> 0:04:02.760 team attorneys. Certainly they could handle it, but I think 0:04:02.800 --> 0:04:04.480 he would want to try to offer some measure of 0:04:04.520 --> 0:04:06.840 respect in the prestige of having it to be the 0:04:06.840 --> 0:04:10.360 special Counsel, not someone else questioning someone with the office 0:04:10.360 --> 0:04:12.200 of the President itself. So I think it would be 0:04:12.200 --> 0:04:14.480 a fair assumption to make that he'll do it himself. 0:04:15.200 --> 0:04:18.039 Many people may not realize that it wasn't just President 0:04:18.120 --> 0:04:23.320 Bill Clinton that submitted to questioning under oath or interviews. 0:04:23.839 --> 0:04:27.840 Um Bill Clinton, George W. Bush, Ronald Reagan, and Gerald 0:04:27.920 --> 0:04:31.640 Ford all either submitted to interviews or testified before a 0:04:31.680 --> 0:04:36.040 grand jury. Why is the testimony before a grand jury 0:04:36.640 --> 0:04:40.240 so much more difficult? Uh? In a grand jury, you 0:04:40.320 --> 0:04:43.080 can't have your lawyers there by and large, So for 0:04:43.160 --> 0:04:45.839 especially with a client left Donald Trump, again, you've got 0:04:45.920 --> 0:04:49.040 to be worried a bit about how he'll answer certain questions, 0:04:49.080 --> 0:04:51.080 whether or not he'll go off on a tangent, if 0:04:51.080 --> 0:04:53.200 he doesn't have his lawyers there to guide him a bit, 0:04:53.440 --> 0:04:56.159 which you do for any client who has that type 0:04:56.160 --> 0:04:59.719 of speaking style. Um. But you also have the issue 0:04:59.760 --> 0:05:02.400 you can Missilian book, the Fifth Amendment to protect to 0:05:02.400 --> 0:05:06.000 protect yourself against the crimination in a grand jury proceeding, 0:05:06.080 --> 0:05:08.919 unlike in any other interview. So it's would be a 0:05:09.000 --> 0:05:12.360 more bigger risk to have the president sit before grand jury. 0:05:12.400 --> 0:05:14.440 I mean Bill Clinton did it. Bill Clinton was a 0:05:14.480 --> 0:05:17.719 trained attorney and he stumbled in a grand jury proceeding. 0:05:17.720 --> 0:05:19.760 So if he's going to stumble, you gotta be worried 0:05:19.800 --> 0:05:22.000 if you're Donald Trump's lawyers about how the president will 0:05:22.000 --> 0:05:25.960 handled it. And look look what that happened after after 0:05:26.000 --> 0:05:30.839 his stumble there, that led to his um the impeachment proceedings. Now, 0:05:31.440 --> 0:05:34.200 and I've had a minute here, what would be the 0:05:34.240 --> 0:05:37.320 top question on your mind if you were Robert Muller, 0:05:37.320 --> 0:05:40.320 what would be the first question you wanted to get answered, 0:05:41.839 --> 0:05:46.880 did you know about the June meeting at Trump Tower? 0:05:47.279 --> 0:05:50.120 And if you did, what was the context of your knowledge? 0:05:51.160 --> 0:05:54.719 You know there are in just about thirty seconds, explain 0:05:55.120 --> 0:05:59.760 the prep for a normal deposition is so rigorous. What 0:06:00.000 --> 0:06:03.480 it the preparation for a deposition like this be? You 0:06:03.480 --> 0:06:05.400 would have to and part of it depends on what 0:06:05.520 --> 0:06:07.760 the client is actually done, But you have to prepare 0:06:07.800 --> 0:06:10.560 them for any number of angles that the prosecutor will 0:06:10.560 --> 0:06:13.000 approach in terms of how they last questions. You have 0:06:13.120 --> 0:06:15.640 to get them to get their answers down to simple, 0:06:15.920 --> 0:06:18.800 concise and direct responses and not to go off on 0:06:18.839 --> 0:06:21.400 a tangent, because that's how you get into trouble. Thank you. 0:06:21.680 --> 0:06:30.640 Bradley Moss, partner at Mark Say did a federal appeals 0:06:30.680 --> 0:06:35.240 courts strike down an FCC decision to preempt state laws 0:06:35.640 --> 0:06:40.039 that restricted the expansion of municipal broadband? That's correct. So 0:06:40.200 --> 0:06:46.520 under the Obama era, FEC attempted to prevent states from 0:06:46.520 --> 0:06:51.960 preventing municipalities from engaging in municipal broadband. So it's basically 0:06:51.960 --> 0:06:55.200 telling states that they couldn't tell their cities not to 0:06:55.240 --> 0:06:59.240 get involved in municipal broadband. And the six Circuit ruled 0:06:59.279 --> 0:07:02.880 that that decision overstepped the boundaries of federal law because 0:07:03.600 --> 0:07:07.200 generally federal agencies don't have the ability to tell states 0:07:07.240 --> 0:07:10.840 what they can and can't do with regard to portions 0:07:10.960 --> 0:07:14.520 of the state apparatus, meaning the municipal governments themselves. That's 0:07:14.520 --> 0:07:16.680 a little bit different, I think than states reaching out 0:07:16.680 --> 0:07:20.800 and trying to regulate private entities like Comcast and Verizon. 0:07:21.360 --> 0:07:24.480 General rules of preemption state that when UH federal and 0:07:24.640 --> 0:07:29.600 state policy directly conflict, the supremacy clause gives the tie 0:07:29.600 --> 0:07:32.360 to the offense. Let's talk about the different ways that 0:07:32.440 --> 0:07:35.680 the states are approaching this. In New York, one bill 0:07:35.760 --> 0:07:39.800 proposed would require internet providers to adhere to net neutrality 0:07:39.840 --> 0:07:44.320 principles to land state contracts. Assemblywoman Patricia Faye He said 0:07:44.320 --> 0:07:47.480 the restrictions would apply even if the behaviors took place 0:07:47.600 --> 0:07:51.280 outside New York. Is that taking the issue a little 0:07:51.280 --> 0:07:53.800 too far? So? I actually think this is the most 0:07:53.840 --> 0:07:58.640 interesting of the many attempts by states to enact net neutrality. Uh. 0:07:58.760 --> 0:08:00.360 What I think is really interesting about it is the 0:08:00.400 --> 0:08:03.760 fact that it's using an indirect method, right, It's not 0:08:03.880 --> 0:08:07.400 telling providers directly that they have to engage in net 0:08:07.400 --> 0:08:10.360 neutral principles, but it's making it a voluntary condition of 0:08:10.440 --> 0:08:16.000 receiving UH state funds that may actually survive general preemption 0:08:16.080 --> 0:08:20.320 rule in the way that direct state legislative command wouldn't. 0:08:21.080 --> 0:08:24.160 But then it raises the problem under the dormant commerce clause, 0:08:24.320 --> 0:08:26.880 whether New York can use these conditions in order to 0:08:26.920 --> 0:08:30.520 reach behavior beyond New York States borders. I think they'd 0:08:30.520 --> 0:08:33.400 be in much better shape if they simply limited the 0:08:33.440 --> 0:08:37.360 condition to UH activities that the companies undertake while in 0:08:37.480 --> 0:08:41.720 New York. So in California, there are two bills, and 0:08:41.800 --> 0:08:45.200 one of them California State Senator Scott Wiener introduced, and 0:08:45.240 --> 0:08:48.360 that would only apply to behavior within the state, So 0:08:48.440 --> 0:08:51.280 that you think has a better chance. I think that's 0:08:51.320 --> 0:08:55.400 probably the best chance of all of them. Um. And 0:08:55.440 --> 0:08:57.760 it's worth noting that it's not the first time that 0:08:57.920 --> 0:09:02.280 states and Feds have clashed over something like US the UH. 0:09:02.400 --> 0:09:06.960 Minnesota attempted about ten years ago to regulate void providers 0:09:07.000 --> 0:09:09.560 like Vontage on the theory that this looks walks and 0:09:09.600 --> 0:09:12.280 talks like a traditional telephone services, it happens to be 0:09:12.320 --> 0:09:15.720 over the Internet rather than over traditional phone lines, and 0:09:15.800 --> 0:09:19.439 so states can regulate UH telephone services should be able 0:09:19.480 --> 0:09:23.760 to regulate void providers as well. UH. The SEC said 0:09:23.760 --> 0:09:26.320 no and tried to preempt state regulation, and ultimately they 0:09:26.320 --> 0:09:29.240 were successful in that. So DAN, with a large state 0:09:29.320 --> 0:09:32.640 like California, no matter what a loss say is about 0:09:32.640 --> 0:09:37.480 it applying only within the state, it can reverberate outside 0:09:37.480 --> 0:09:41.040 the state. And so if there are bills in California 0:09:41.200 --> 0:09:45.000 and New York and let's say Washington, will that affect 0:09:45.280 --> 0:09:50.200 the Internet significantly? Yeah? So it might write because assuming 0:09:50.240 --> 0:09:55.960 that California succeeds in UH tying its funding to the 0:09:56.960 --> 0:10:00.679 practice of net neutral principles while operating within California, you been, 0:10:00.720 --> 0:10:04.680 a company like Verizon would have to UH decide whether 0:10:04.800 --> 0:10:08.160 it's possible to segment its network management practices and practice 0:10:08.480 --> 0:10:10.679 one set of rules in California and another set of 0:10:10.760 --> 0:10:12.679 rules for the rest of the country, or maybe it's 0:10:12.679 --> 0:10:16.720 easier just to apply the California policy across the United States. Right. 0:10:16.760 --> 0:10:20.880 That's why California winds up the facto setting things like 0:10:21.440 --> 0:10:25.040 air quality management standards, right, because they hold auto providers 0:10:25.080 --> 0:10:28.160 to a very strict rule, and companies find it easier 0:10:28.200 --> 0:10:32.520 to manufacture cars across the country to meet California standards 0:10:32.520 --> 0:10:34.360 than to create one set of cars to sell in 0:10:34.400 --> 0:10:36.400 California another for the rest of the nation. And just 0:10:36.640 --> 0:10:39.600 last month, more than a dozen states asked the Supreme 0:10:39.640 --> 0:10:43.000 Court to block a California law that required egg sellers 0:10:43.000 --> 0:10:46.600 to abide by certain guidelines in the treatment of hands. 0:10:46.679 --> 0:10:49.920 So uh, then their argument was that attempts to regulate 0:10:49.960 --> 0:10:52.200 industry in other states. So I guess we'll see where 0:10:52.240 --> 0:10:57.160 that goes. Um. Now, let's talk about the lawsuits that 0:10:57.200 --> 0:11:00.400 are coming. Because the FCC released the final text of 0:11:00.440 --> 0:11:04.839 the net neutrality rule last week, so the lawsuits challenging 0:11:04.840 --> 0:11:08.120 can proceed. New York Attorney General Eric Schneiderman is leading 0:11:08.120 --> 0:11:12.480 a coalition of other states attorneys general in a lawsuit. 0:11:13.000 --> 0:11:16.920 Which has a better chance of success these lawsuits or 0:11:16.960 --> 0:11:19.480 the state laws? That may be a very tough question, 0:11:19.840 --> 0:11:25.200 but yeah, so um, the state legal challenge, I think 0:11:25.240 --> 0:11:28.440 is going to map the legal challenge that Silicon valuing 0:11:28.480 --> 0:11:31.480 other industry players are bringing against it, which look at 0:11:31.800 --> 0:11:35.040 challenge the FCC's action on two grounds. One is the 0:11:35.120 --> 0:11:39.960 legal ground saying the FCC lacked legal authority to reclassify 0:11:40.080 --> 0:11:43.559 broadband as an information service. My sense is that's probably 0:11:44.320 --> 0:11:46.880 a non starter of an argument, given that the SEC 0:11:47.000 --> 0:11:50.320 was simply returning to the rules that governed prior to 0:11:50.320 --> 0:11:53.920 two thousand fifteen. The other UM set of arguments or 0:11:53.960 --> 0:11:58.160 procedural hurdles the idea that if the UM the FEC 0:11:58.320 --> 0:12:00.520 could do what it did, but it did follow the 0:12:00.559 --> 0:12:05.560 appropriate procedural requirements when doing so. Depending on how that 0:12:05.720 --> 0:12:09.400 argument shakes out, that maybe the only chance UM that 0:12:10.120 --> 0:12:12.839 opponents have. But as we saw in the last round 0:12:12.880 --> 0:12:15.800 of these debates, right the administrative law is always stacked 0:12:15.840 --> 0:12:18.679 in the agency's favor. There's a sense that as long 0:12:18.720 --> 0:12:20.920 as the agency is crossing seas and dotting the size 0:12:20.920 --> 0:12:23.320 the way it's supposed to, these types of policy questions 0:12:23.320 --> 0:12:25.120 generally get left to the agency rather than to the 0:12:25.120 --> 0:12:27.280 court to decide. So I think a legal challenge is 0:12:27.280 --> 0:12:30.120 going to be an uphill battle. What about Senator Edward 0:12:30.280 --> 0:12:33.680 Markey from Massachusetts, who's leading an effort to launch a 0:12:33.760 --> 0:12:38.800 Congressional Review Act resolution in an attempt to reverse the 0:12:38.880 --> 0:12:43.199 net neutrality rules that PIPE put into place. Yeah, I 0:12:43.240 --> 0:12:45.520 think as a matter of politics, it's a pretty smart 0:12:45.520 --> 0:12:47.680 move because it's trying to get each member of Congress 0:12:47.720 --> 0:12:52.920 on record is UH discussing whether they are supportive of 0:12:53.000 --> 0:12:55.760 or opposing to the SEC's action. That said, I don't 0:12:55.760 --> 0:12:58.920 expect any substantive change because for the Congressional Review Act 0:12:59.040 --> 0:13:01.960 to succeed, it has to pass both the House and 0:13:02.040 --> 0:13:04.360 the Senate and either be signed by the President or 0:13:05.160 --> 0:13:07.920 have his veto overridden. I don't see the President supporting 0:13:07.960 --> 0:13:12.760 this at all. Dan. More than twenty states introduced broadband 0:13:12.840 --> 0:13:17.280 privacy rules last year in response to Congress's decision to 0:13:17.400 --> 0:13:21.880 roll back Obama era FCC rules that required Internet providers 0:13:21.920 --> 0:13:26.800 to ask permission before collecting personal information for commercial uses. 0:13:27.440 --> 0:13:31.439 How is that going as far as the states? How 0:13:31.440 --> 0:13:35.040 are they succeeding with that? Well? So that's actually much 0:13:35.040 --> 0:13:38.480 more interesting question of federalism because historically we've allowed states 0:13:38.520 --> 0:13:43.040 to experiment with UH data privacy and data security issues 0:13:43.080 --> 0:13:45.920 at the state level that we haven't done with regard 0:13:45.960 --> 0:13:49.160 to things like broadband network management practices. So there's a 0:13:49.160 --> 0:13:51.760 sense in which states have been operating by doing this, 0:13:51.840 --> 0:13:55.959 are operating within the confines of regulatory authority that they've 0:13:56.000 --> 0:13:59.080 traditionally had. That having been said, I think it's possible 0:13:59.120 --> 0:14:03.400 to read the UH recent Net Neutrality Order as preempting 0:14:03.480 --> 0:14:07.800 even some of those as well, because the the language 0:14:08.040 --> 0:14:10.839 of the in the preemption portion of the statute or 0:14:10.920 --> 0:14:14.120 the the order seems to reach really really broadly UH 0:14:14.160 --> 0:14:16.840 to prevent anything that's inconsistent with the SCCS approach here. 0:14:16.880 --> 0:14:20.840 So we'll see all that developed. And dan I mentioned 0:14:20.880 --> 0:14:24.520 that the final rule is out of the final text. 0:14:25.440 --> 0:14:28.280 Have you looked at it to see if it varies 0:14:28.640 --> 0:14:31.800 to any degree from what was proposed? I've not done 0:14:31.760 --> 0:14:34.520 aligned by line comparison, but it looks to me like 0:14:34.640 --> 0:14:37.840 the general thrust of the order UH fits and matches 0:14:38.840 --> 0:14:42.680 what German Pie released just prior to the Thanksgiving break. 0:14:43.080 --> 0:14:45.600 I think to the extent that there's minor variations, it's 0:14:45.680 --> 0:14:50.320 responses to the points made by the dissenting commissioners in 0:14:50.400 --> 0:14:53.400 order to make sure that the order is UH as 0:14:53.520 --> 0:14:58.280 robust as it can be. And in about twenty seconds 0:14:58.280 --> 0:15:00.880 here do you find that the net neutral reality rules 0:15:00.920 --> 0:15:06.479 are now crossing partisan lines, that people are both Republicans 0:15:06.480 --> 0:15:09.120 and Democrats are having problems with the lack of rules. 0:15:09.960 --> 0:15:12.480 So it's UM. I think one of the big points 0:15:12.480 --> 0:15:15.160 that came out was seeing that Nebraska became the first 0:15:15.640 --> 0:15:20.280 Republican leading state to join this state rebellion against the FCC. 0:15:20.520 --> 0:15:23.640 So alright, suggest it. Thank you, Dan, Sorry to have 0:15:23.680 --> 0:15:26.440 to leave it there. Dan Lyons, a professor at Boston 0:15:26.560 --> 0:15:29.880 College Law School. Well, this is Bloomberg. Thanks for listening 0:15:29.920 --> 0:15:33.200 to the Bloomberg Law Podcast. You can subscribe and listen 0:15:33.240 --> 0:15:36.840 to the show on Apple podcast, SoundCloud, and on bloomberg 0:15:36.880 --> 0:15:41.600 dot com slash podcast. I'm June Brosso. This is Bloomberg.