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. Yesterday, the Federal
Speaker 1: Reserve proposed new banking rules that reduced regulations for all
Speaker 1: but America's biggest lenders in an effort to reduce regulatory
Speaker 1: compliance requirements. In a speech in September, FED Chair J.
Speaker 1: Powell discussed banking regulations. We want the strongest regulation, that
Speaker 1: the highest standards to be applied to the very large
Speaker 1: financial institutions that are systemically important. As we moved down
Speaker 1: the food chain to the regionals and then the medium
Speaker 1: sized banks, and then into the smaller community banks, we
Speaker 1: want to make sure that we're tailoring regulation substantially at
Speaker 1: each step of that. Joining me is Robert Howckety, professor
Speaker 1: at Cornell University Law School. So, Bob, now, there will
Speaker 1: be a tiered system for bank regulations that will depend
Speaker 1: not only on total assets, but on other risk factors
Speaker 1: as well. Will you explain how the system will work? Yeah?
Speaker 1: So it's it's actually kind of surprising. I think Chairman
Speaker 1: Powell has to some extent mischaracterized, UM, what the nature
Speaker 1: of the proposal is that proposed rule change is that
Speaker 1: was announced yesterday. Right. So originally what we were, what
Speaker 1: we did after the crash, right with John Frank, was
Speaker 1: we would say we said, basically, all banking institutions with
Speaker 1: assets in excess of about fifty billion would be subject
Speaker 1: to some heightened credential standards, in particular in the realm
Speaker 1: of capital regulation UH and liquidity regulation. UM. Then, as
Speaker 1: we talked about last spring, UM, the Congress UH and
Speaker 1: Mr Trump changed the rules of their last spring by
Speaker 1: raising that threshold to two d fifty billion, right from
Speaker 1: fifty billion, So they quintupled it right now. UM. What
Speaker 1: they did was and they gave the Fed UH sort
Speaker 1: of instructions to UM sort of change the credential rules
Speaker 1: that would apply sort of in light of that new
Speaker 1: set of standards. But we were given to think that
Speaker 1: at least they would stay high, right, stay high for
Speaker 1: the banks that were two hundred billion and larger. But
Speaker 1: what's really quite most intriguing I think about the FED
Speaker 1: proposal announced yesterday was that they're actually going to relax
Speaker 1: the capital standards and liquidity standards even for the banks
Speaker 1: with assets between two hundred fifty and seven hundred billion dollars. So,
Speaker 1: in other words, the sort of tiered system that Mr
Speaker 1: Powell was talking about is in a way a kind
Speaker 1: of a distraction. In a way, it's a kind of
Speaker 1: a side show, because the thing that's most remarkable and
Speaker 1: surprising is the fact that they're relaxing the standards even
Speaker 1: for the largest banks. So does we does weakening the
Speaker 1: rules even for banks that are not considered systemically important
Speaker 1: pose a risk to the system? And what about for
Speaker 1: banks that are? Yeah, I think, uh, it only proposed
Speaker 1: poses a significant risk to the system. Right to relax
Speaker 1: the capital standards and the liquidity standards for the mega banks,
Speaker 1: right the two hundred billion and larger um. I think
Speaker 1: it also I think adds significant risk to the system. Uh,
Speaker 1: to lighten the regulatory load for the institutions between fifty
Speaker 1: and two hundred fifty billion as well. In other words,
Speaker 1: I think that the legislation that was pasted last spring
Speaker 1: that we talked about was itself also a move in
Speaker 1: the wrong direction. I think it's a bit of a
Speaker 1: mistake to describe banks that have a hundred billion or
Speaker 1: a hundred fifty billion dollars in assets as being small
Speaker 1: community banks. These are huge institutions. They're simply a bit
Speaker 1: smaller than the two billion dollar institutions. So I think
Speaker 1: you add risk of the system even by doing that.
Speaker 1: And so we were moving in the wrong direction even
Speaker 1: last spring. But again, the surprising thing about yesterday is
Speaker 1: that we're learning the FED wants to go even further
Speaker 1: in the wrong direction, even with respect to those mega
Speaker 1: banks with assets under management of over two Well, there's
Speaker 1: also apparently more streamlining and tweaking of regulations in the works.
Speaker 1: Tell us about the momentum that financial regulators seem to
Speaker 1: be gaining and the new what maybe happen next? Yeah, So,
Speaker 1: I mean the trend is sort of predictable. Um, I
Speaker 1: think the only thing that might not have been predicted
Speaker 1: was just speed with which it has sort of commenced
Speaker 1: and then with which it has been proceeding ever since.
Speaker 1: It commands right, so we seem to be relaxing again
Speaker 1: liquidity standards and capital standards, which are probably the most
Speaker 1: important macroprudential regulatory tools that we have. In addition of course,
Speaker 1: we're rolling back the regulations in the realm of consumer
Speaker 1: financial protection, which not only is important, of course to
Speaker 1: ordinary James and Joe's like you and me, but also
Speaker 1: is systemically important because as we know, right the most
Speaker 1: toxic assets that ultimately cause a financial system to implode
Speaker 1: often are those that are extended in predatory ways that
Speaker 1: would normally be prohibited if we had actual, you know,
Speaker 1: strong consumer protection standards still in place. But as you
Speaker 1: as you know, of course, Mr mulvaney effectively worked a
Speaker 1: coup in taking over the CFPB about a year ago
Speaker 1: and has basically dropped most of the enforcement actions that
Speaker 1: it had underway. And now we have actual statutory changes
Speaker 1: and regulatory changes a foot, essentially repealing or eliminating particular
Speaker 1: regulations that the CFPB would have had the jurisdiction to
Speaker 1: enforce in the first place. So that's yet another way
Speaker 1: in which I think we're really heading in the wrong direction,
Speaker 1: and at an accelerated pace that I think is quite ominous.
Speaker 1: The Federal Reserve and the Office of the Control of
Speaker 1: the Currency are independent bank regulators. How much of the
Speaker 1: easing of regulations is coming from within those agencies, and
Speaker 1: how much from pressure from without. So that's always a
Speaker 1: somewhat tough call, because the the pressure from now without
Speaker 1: is sort of hard to measure. As you had. These
Speaker 1: are independent agencies, and so they are nominally or you know,
Speaker 1: strictly speaking, uh, not subject to pressures that are imposed
Speaker 1: by Congress or by the President once they're in office.
Speaker 1: But I think it would be unrealistic to think that
Speaker 1: they're not affected, um by say, constant hearings or constant
Speaker 1: haranguing by a president or by members of Congress or
Speaker 1: what have you. So it's possible that the pressure that's
Speaker 1: being applied by by Republicans and Congress and by Mr
Speaker 1: Trump himself and his Treasury departments are having some effect.
Speaker 1: But it's also, of course possible that these people themselves, right,
Speaker 1: the people in the agencies are a bit more of
Speaker 1: a deregulatory persuasion, if for no other reason than that
Speaker 1: a growing number of them are, of course appointees of Mr. Trump's.
Speaker 1: So mid terms are coming up, Bob. If the Democrats
Speaker 1: take the House or the Senate in the midterms, will
Speaker 1: that stop or slow the deregulatory efforts. I think it will, uh,
Speaker 1: And I have a somewhat idiosyncratic reason for thinking so
Speaker 1: that I haven't seen out in the press yet, So
Speaker 1: as you know, I'm sort of metabolically optimistic. UM, So
Speaker 1: you might you might want to sort of take this
Speaker 1: with a grain of salt. But I actually think we're
Speaker 1: going to that the Dems are going to take the
Speaker 1: House and the Senate. I think when that happens, Mr
Speaker 1: Trump is going to become a kind of Democrat. We
Speaker 1: know he doesn't have principles, right, He's a very pragmatic
Speaker 1: would be the nice way of saying it. Opportunistic would
Speaker 1: be the somewhat lass nice way of saying it. I
Speaker 1: think Mr Trump, keen on leaving a legacy, UM, is
Speaker 1: going to sound increasingly like a Democrat once the Congress
Speaker 1: change his hands. And at that point, Um, the pressures
Speaker 1: on the regulators will be of a decidedly different sort
Speaker 1: than they've been over the last couple of years, and that,
Speaker 1: at at least at the margin, I think, will slow
Speaker 1: the rate of the regulatory momentum that we've seen gathering
Speaker 1: steam over the last couple of years. I'm almost speechless, Bob,
Speaker 1: but not quite so. So what about just we have
Speaker 1: about forty five seconds here? Will will democrats. If they
Speaker 1: take control and they start being in charge of the
Speaker 1: banking committees, etcetera. Will that have any effect about thirty seconds? Yeah,
Speaker 1: it does have an effect. Again, it's hard to measure it,
Speaker 1: but you know, the regulators are not completely autistic, right.
Speaker 1: They hear the pressures, they hear what people are saying,
Speaker 1: what people are thinking. And if most of the pressures
Speaker 1: and most of the thoughts that are being expressed come
Speaker 1: from a pro regulatory angle, um, that can't help but
Speaker 1: affect them. All right, Thanks so much, Bob. As always,
Speaker 1: that's Robert Hockety. He is a professor at Cornell University
Speaker 1: Law School. Robert Bauer is the man accused of killing
Speaker 1: eleven people in a Pittsburgh synagogue, pleaded not guilty in
Speaker 1: federal court today to forty four counts, including murder and
Speaker 1: hate crimes. Joining me as former federal prosecutor Robert Mint's
Speaker 1: a partner McCarter in English, Bob tell us about the
Speaker 1: hate crimes he's charged with and what prosecutors will have
Speaker 1: to prove to convict him of those, or well, the
Speaker 1: history of hate crimes really starts in UH nineteen one
Speaker 1: Congress past the first hate crime statute, and it basically
Speaker 1: makes it a crime to use or threatened force to
Speaker 1: wilthy interfere with any person because of their race, color, religion,
Speaker 1: or national origin. So it's it's an interesting statute because
Speaker 1: generally criminal statute don't look to the motive behind a
Speaker 1: killing or an act, and they simply look to the conduct.
Speaker 1: But in this case hate crimes, procecutes have to prove
Speaker 1: that not only was somebody murdered, but they were murdered
Speaker 1: um because of their their gender, because of their race,
Speaker 1: because of their religion, and so it really goes to
Speaker 1: the motive of the killing. And in this case, the motive,
Speaker 1: according to procecures with anti Semitism. The um the gunmen
Speaker 1: shouted out death to Jews or something to the out
Speaker 1: of fact as he was shooting allegedly in the temple,
Speaker 1: and that's what they will rely upon in order to
Speaker 1: prove those charges. Death penalty cases are rare in federal court,
Speaker 1: but here federal prosecutors say they are pursuing the death penalty,
Speaker 1: explain how that affects the trial itself. For example, the
Speaker 1: selection of a death penalty qualified jury. Sure, well, as
Speaker 1: you said, June death penalty cases are relatively rare in
Speaker 1: federal court. Only three people have been executed since the
Speaker 1: federal death penalty was reinstated in UM And ultimately, it's
Speaker 1: important for people to remember that the decision about whether
Speaker 1: a defendant will receive death or life in prison is
Speaker 1: up to the jury. Uh So that means that when
Speaker 1: the jury is impaneled UM their additional questions that have
Speaker 1: to be asked to those jurors to make sure that
Speaker 1: jurors can approach that decision with an open mind, and
Speaker 1: jurors who have a moral aversion to the death penalty
Speaker 1: regardless of the facts of a case UM will not
Speaker 1: be permitted to sit on that jury. So it takes
Speaker 1: time for both the defense and prosecutors to arrive with
Speaker 1: the jury that they think can be fair. And if
Speaker 1: you're the prosecutor, you want to make sure it's somebody
Speaker 1: who is willing to apply the death penalty if they
Speaker 1: believe it's warranted under the facts of the case. So
Speaker 1: if he's found guilty of the crimes that carry the
Speaker 1: death penalty, there will be a death penalty phase and
Speaker 1: the jury will hear from witnesses, including the victims. The
Speaker 1: Washington Boast has a story out today that some rabbis
Speaker 1: oppose the death penalties even in this case. How might
Speaker 1: that way into the jury's decision into the presentation, Well,
Speaker 1: it does weigh in. Prosecutors are always going to listen
Speaker 1: to victims as they put their case together, and on
Speaker 1: a question of whether to seek the death penalty, the
Speaker 1: victims will be considered, but ultimately the decision is with
Speaker 1: the Department of Justice and with prosecutors, because prosecutors are
Speaker 1: of course representing the entire country, not only the victims
Speaker 1: of the crime. But for example, in the Dylan Roof
Speaker 1: case where the white supremacist was sentenced to death last
Speaker 1: year for hate driven crimes, that was a case where
Speaker 1: families of those victims also did not want them to
Speaker 1: be executed because of their Christian beliefs. So it's something
Speaker 1: prosecutes will have to consider. But ultimately the decision about
Speaker 1: whether the charge and seek the death penalty will be
Speaker 1: with prosecutors and of course jury. The jury will ultimately
Speaker 1: make that determination, but the state is also charging him,
Speaker 1: and the Allegheny County District Attorney has also said he
Speaker 1: will seek the death penalty. What's the point of having
Speaker 1: a state trial after a federal trial. That's a good question.
Speaker 1: A lot of people are are perplexed by that. Um.
Speaker 1: The reason that there is a state trial as well
Speaker 1: is because these crimes uh constitute violations of both state
Speaker 1: and federal law. So the state has a basis to
Speaker 1: bring these charges as well, and often those charges are
Speaker 1: brought in the state after the federal charges, just to
Speaker 1: ensure that if ultimately the federal charges are overturned for
Speaker 1: any reason, that there are these other charges out there
Speaker 1: that will ensure that the defendant remains in jail, and
Speaker 1: ultimately it maybe the state charges on which he is
Speaker 1: um sentenced instead of the federal charges. But it's important
Speaker 1: to also note that under the death penalty process, the
Speaker 1: federal system is more will move more expeditiously, because a
Speaker 1: death penalty conviction on the state level runs through the
Speaker 1: appeals process on the state level and then has a
Speaker 1: complete second layer of appeals through the federal system. Through
Speaker 1: convicted of only the federal death penalty, it only goes
Speaker 1: through one layer of appellate review and moves a little
Speaker 1: bit quicker, but in either case the process is slow.
Speaker 1: Question about the proceeding this morning, his federal public defender said,
Speaker 1: he pleaded not guilty quote as is typical at this
Speaker 1: stage of the preceding. It is typical, but stay think
Speaker 1: it is not so typical. Was that just information or
Speaker 1: was he signaling a change of plea pros possibly we
Speaker 1: have about forty seconds here. Well, you're right, Jim is
Speaker 1: not typical. Uh, it may be that he's trying to
Speaker 1: signal the prosecutors that he's looking to cut some kind
Speaker 1: of a deal. Often in those cases, the role of
Speaker 1: the public defender or the defense lawyer is simply to
Speaker 1: try to save his client's life and try to see
Speaker 1: whether he can convince prosecutors to accept the guilty plea
Speaker 1: that will only result in life in prison as opposed
Speaker 1: to the death penalty. Thanks so much, Bob. That's Robert Mens.
Speaker 1: He's a partner McCarter and English, a former federal prosecutor.
Speaker 1: Thanks for listening to the Bloomberg Law Podcast. You can
Speaker 1: subscribe and listen to the show on Apple podcast, SoundCloud,
Speaker 1: and on Bloomberg dot com slash podcast. I'm June Brosso.
Speaker 1: This is Bloomberg