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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud,

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Speaker 1: and on Bloomberg dot com Slash podcasts. For three hours today,

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Speaker 1: Deputy Attorney General Rod Rosenstein had been hit by a

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Speaker 1: barrage of questions by Republicans on the House Judiciary Committee

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Speaker 1: about what they say is an anti Trump bias at

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Speaker 1: the FBI, the Justice Department, and Special Counsel Robert Mueller's team.

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Speaker 1: Rosenstein defended all three and the scope of Mueller's investigation.

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Speaker 1: Joining me is Bradley Moss a part at Mark zad Brat.

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Speaker 1: Rosenstein was really firm in his defense of the Mueller investigation.

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Speaker 1: Did you see Republicans making any headway in showing bias? No,

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Speaker 1: not really. I mean, look, both sides had their political

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Speaker 1: agents to today's Democrats are trying to corner the Deputy

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Speaker 1: Attorney General in terms of whether or not you'd stand

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Speaker 1: up to in order to fire Muller, and Republicans were

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Speaker 1: understandably trying to discredit the investigation. And it is piety,

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Speaker 1: or at least lay the groundwork for it to be

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Speaker 1: dismissed as a political hackery when the report comes out.

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Speaker 1: So and more or less, what happened today was just theater. Uh.

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Speaker 1: Neither side made any headway on that part, pretty much

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Speaker 1: brushed it all off. I don't think we have enough

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Speaker 1: yet to really make conclusions about whether or not these

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Speaker 1: texts between these two government officials reflects anything other than

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Speaker 1: crude political commentary. In an election that was filled with

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Speaker 1: crude political commentary, there was there was high drama at

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Speaker 1: some points. I want you to describe the special role

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Speaker 1: that Rosenstein has with regard to Muller because of Attorney

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Speaker 1: General Jeff sessions recusal. Yeah, well, I mean the deputy

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Speaker 1: Attorney General took the place of the Attorney General in

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Speaker 1: this context because of the turney general's role in the campaign, uh,

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Speaker 1: and how he couldn't be therefore it was connot be

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Speaker 1: impartial in the context of the Russian coclusion investigation, and

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Speaker 1: that's brought a lot of fire and criticism to the

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Speaker 1: Deputy Channel General because he's the one who authorized the

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Speaker 1: special counsel. He's the one who is coordinating with special

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Speaker 1: counsel on the extent of the current investigation, which has

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Speaker 1: not only gone after issues relating to alleged collusion, but

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Speaker 1: it's also target stuff like money laundering and lyne to

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Speaker 1: the FBI on Purpherle matters that wouldn't necessarily be strictly

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Speaker 1: and narrowly tied to that original core issue. And so

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Speaker 1: that's brought up a lot of criticism for Mr. Rosenstein

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Speaker 1: from Republicans who are concerned they see the Muller investigation

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Speaker 1: kind of expanding beyond its original purpose. Both sides tried

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Speaker 1: to dig into the specifics of Mueller's investigation and did

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Speaker 1: not get very far. Republican Congressman Smith asked if the

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Speaker 1: Special counsel was authorized to look into the personal finances

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Speaker 1: of Trump's children, and that's just what you're talking about.

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Speaker 1: Does that seem to be outside the bat owns of

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Speaker 1: the scope of his investigation? And that becomes a problem

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Speaker 1: with we don't know what we don't know, because we

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Speaker 1: don't know the details of what Mueller has, it doesn't

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Speaker 1: ask here, it's hard to decide or conclude whether or

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Speaker 1: not going after those finances would be legitimate if you

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Speaker 1: believe that there was some manner of collusion that included

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Speaker 1: possibly the president and or his children. There was always

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Speaker 1: the understanding that it might have something to do with

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Speaker 1: the finances, that there was some kind of leverage or

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Speaker 1: compromise that was tied to the Trump family finances. So

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Speaker 1: if there is some evidence that would lead down that path,

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Speaker 1: it would make sense to dig into those details and

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Speaker 1: those very personal and private details. But because we don't

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Speaker 1: know what Mueller has found on terms of what not

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Speaker 1: there was anything along those lines, we don't know to

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Speaker 1: what extent it would be appropriate. And I think that's

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Speaker 1: what very much Congress was trying to get at today,

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Speaker 1: And obviously there was no reason that Rosenson is going

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Speaker 1: to divulge any of that in this kind of in

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Speaker 1: the midst of an ongoing investigation. He keeps saying, I

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Speaker 1: know what's going on. I of a full complete control

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Speaker 1: over what's going on. It's my responsibility, and I'm doing it.

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Speaker 1: But he refused to answer. Also, when he was asked,

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Speaker 1: really pressed on whether the President had contacted him in

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Speaker 1: regard to any pending investigations, and he was asked what

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Speaker 1: the legal reason for his not replying was, and he obfuscated,

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Speaker 1: is there any legal reason for him not to reply

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Speaker 1: to that question by an oversight committee, well, sure, for

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Speaker 1: if for another reason than the fact that it's technically

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Speaker 1: and possibly the subject of the Special Council's investigation in

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Speaker 1: terms of possible obstruction of justice, and the Deputy turn

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Speaker 1: General is himself a potential witness, so he wouldn't want

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Speaker 1: to reveal those details one way or the other. He

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Speaker 1: did provide I would see a very loyally answer in

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Speaker 1: some context that he has not been ordered to fire Muller.

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Speaker 1: That doesn't necessarily he has not been asked to give

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Speaker 1: a loyalty pledge. But those are very narrow and scalily

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Speaker 1: framed answers that could be that could exclude on all

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Speaker 1: number of things that could still be impermissible, even if

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Speaker 1: not fitting with that narrow structure. So what he gave

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Speaker 1: in terms of answers was exactly what you would have

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Speaker 1: expected in this context, giving the ongoing investigation bred there's

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Speaker 1: been a lot of focus by Republicans on the disclosure

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Speaker 1: of these text messages between a top FBI agent assigned

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Speaker 1: to the investigation anti Trump text in exchange with another

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Speaker 1: FBI official last summer and yesterday, the Justice Department leaked

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Speaker 1: hundreds of text messages exchanged between the two. Rosenstein was

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Speaker 1: asked about it, and he said that there should be

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Speaker 1: transparency and that's why they released those text messages. But

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Speaker 1: is that unusual in in an ongoing investigation to have

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Speaker 1: text messages released? Very very much so, I mean, I

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Speaker 1: can't really think of too many examples of that in

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Speaker 1: that kind of circumstance outside of someone getting access to

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Speaker 1: it the foil, like we saw with parts of the

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Speaker 1: Hillary Clinton saga with the emails in the midst the election.

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Speaker 1: So it's one of those things of the Justice Department

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Speaker 1: never talks about ongoing investigations unless the Justice Department decides

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Speaker 1: it will talk about the details of the ongoing investigations.

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Speaker 1: It's the benefit of being the one with all the controllers.

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Speaker 1: You decide when the exceptions apply. He certainly was in

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Speaker 1: control today. Thanks so much for being here. That's Bradley Moss,

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Speaker 1: a partner at mark Z. The verdict is in and no,

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Speaker 1: you can't sue Donald Trump for tweeting that you're a

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Speaker 1: real dummy and a major loser with zero credibility. That's

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Speaker 1: what a New York appeals court ruled in the case

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Speaker 1: of a Republican political strategist who sued Trump for defaming

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Speaker 1: her after she questioned his fitness for office on television

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Speaker 1: last year. Joining me is Josh Blackman, professor at the

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Speaker 1: South Texas College of Law and author of Unraveled Obamacare,

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Speaker 1: Religious Liberty, and Executive Power. Josh, what was the court's

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Speaker 1: reasoning here? So what happened was after uh Harry Jacobus

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Speaker 1: made a few comments about Trump on cable news, Trump

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Speaker 1: did what he always does. He started attacking her on Twitter.

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Speaker 1: He called her a dummy. He said that she begged

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Speaker 1: us for a job, but the Trump campaign said no,

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Speaker 1: and then she went hostile. So before President Trump's inauguration,

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Speaker 1: she suit him in state court for libels for attacking

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Speaker 1: her character um last year, shortly before the inauguration. The

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Speaker 1: court dismissed it, saying that the claims were a little

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Speaker 1: bit too vague, that calling her a dummy and saying

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Speaker 1: that she begged for a job wasn't really anything. Attacking

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Speaker 1: her character is merely offensive. And the other day the

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Speaker 1: New York uh Pellet Court affirm that judgment being with

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Speaker 1: the case against Trump will not go forward. Did they

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Speaker 1: also talk about this being more opinion rather than fact?

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Speaker 1: That's exactly right. When you have a libel case, it's

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Speaker 1: always a close call as this person saying a false

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Speaker 1: statement of fact or giving merely an opinion. Um, And

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Speaker 1: I'll read you the tweet from the President. He said,

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Speaker 1: quote Sherry Jacobus begged us for a job, we said no,

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Speaker 1: and she went hostile. A real dummy. Um, for whatever

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Speaker 1: that's worth, and who knows what it actually means. He's

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Speaker 1: not actually saying any false facts about her. He's merely

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Speaker 1: asserting his opinion about her that he thinks she's a dummy. Certainly,

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Speaker 1: it's inflammatory but not defamatory. So I'll remember that, uh,

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Speaker 1: inflammatory but not defamatory. But does this make Twitter a

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Speaker 1: defamation free zone, as the plaintiff lawyer suggested, I don't

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Speaker 1: think it quite goes that far. The New York propelled

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Speaker 1: at court said that the statements here are too vague, subjective,

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Speaker 1: and lacking in precise meaning to give rise to a lawsuit. So,

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Speaker 1: for example, let's say that Trump went on Twitter and

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Speaker 1: so that you know ms uh m Jacobus is a

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Speaker 1: convicted felon, and that she she's she's a you know,

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Speaker 1: she's a sex offender, and you know awful things those

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Speaker 1: are false statements that are objectively false and can be verified.

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Speaker 1: How had that been said on Twitter or Morning Joe

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Speaker 1: or anywhere else to give rise to a libel action.

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Speaker 1: What Trump does here is what he usually does, is

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Speaker 1: he uses these vague phrases without the best friend what

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Speaker 1: he actually means, and he lets his h his followers

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Speaker 1: take it from there. Um Jacobs. His other point is

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Speaker 1: that Trump incided a mob against her by basically attacking her,

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Speaker 1: It opened her up to abuse in social media elsewhere. Um.

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Speaker 1: The court also rejected that claim. Trump is fighting another

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Speaker 1: defamation suited by a former contestant on his Apprentice reality

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Speaker 1: TV show. She claims the President defamed her by calling

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Speaker 1: her a liar after she accused him of sexual assault.

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Speaker 1: One of the arguments they're making the Trump lawyers is

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Speaker 1: that the Constitution bars him from facing state court suits

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Speaker 1: while he's in office. That didn't work for President Clinton

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Speaker 1: in the Paula Jones suit. Is Trump likely to fare

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Speaker 1: any better here? Well, there's a big difference when President

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Speaker 1: Trump was When President Clinton was suited by Paula Jones,

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Speaker 1: he was sued in federal court, and the Streme Court

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Speaker 1: held that a sitting president could be sued in federal

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Speaker 1: court while in office. The other case you mentioned against

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Speaker 1: Trump was filed in state court, and there was a

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Speaker 1: footnote in the Spreme Court's decision that says, we don't

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Speaker 1: decide this issue whether a president could be sued in

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Speaker 1: state court. Um, there's some serious separation of powers issues here.

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Speaker 1: Whether a state institution can actually bring charges against the

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Speaker 1: sitting president rather than a federal institution. Um, this is

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Speaker 1: not a resolved issue. Um, the Trump campaign, I'm star

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Speaker 1: the Trump administration. That's right to dismiss this other defamation suit. Um,

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Speaker 1: this will go up the ladder. Well, Josh, you are

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Speaker 1: a scholar and executive power issues. What's your opinion about

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Speaker 1: whether he can be sued in state court? My tentative

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Speaker 1: inclusion is he should not be sued in state court.

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Speaker 1: That if they want to bring this claim under Clinty v. Jones,

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Speaker 1: they can bring in federal court. Um, the claim would

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Speaker 1: be completely actionable. UM. I don't know why they brought

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Speaker 1: it here, prep that there was more favor will form,

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Speaker 1: but it's it's problematic when state institutions can start intruding

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Speaker 1: on executive power. There's some there's some very weighty issues

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Speaker 1: for why this is a bad idea. There are other

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Speaker 1: forms available to bring such causes of action, and briefly,

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Speaker 1: he also claims in the second suit that the speech

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Speaker 1: was protected under the First Amendment. Would the word liar

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Speaker 1: be equivalent or analogous to what what is? Other tweets

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Speaker 1: said in the New York case, Well, a liar is

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Speaker 1: a little bit more specific because consum a liar you

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Speaker 1: can verify true or false. You know, we have fake news,

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Speaker 1: but you can still say it's a fact or not

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Speaker 1: to someone given accurate fact. And if you see someone

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Speaker 1: a's a liar that committed fraud, and you've proven the

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Speaker 1: fact that person says something incorrect, that could give rise

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Speaker 1: to a libel action in the normal case. Of course,

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Speaker 1: with the president. It's a different story in the separation

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Speaker 1: of powers. But in the general sense, the word liar

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Speaker 1: words like fraud. If you want to critify someone, you

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Speaker 1: stay wasting those words. This is a more complicated issue

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Speaker 1: than most people think. Thanks so much for clarifying it.

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Speaker 1: That's Professor Josh Blackman of the South Texas College of Law,

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Speaker 1: an attorney for the Political Strategist, says that she intends

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Speaker 1: to ask New York's highest court to hear the case.

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