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Speaker 1: Michael Flynn's tenure was the shortest as a national security

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Speaker 1: advisor of all time, with his resignation coming after just

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Speaker 1: about twenty four days. Flynn resigned and made reports that

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Speaker 1: during the presidential campaign he had discussed u S sanctions

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Speaker 1: against Russia during conversations with Russian officials. The White House

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Speaker 1: is confirmed as well that General Flynn misled Vice President

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Speaker 1: Michael Pence about the conversations. And now there are reports

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Speaker 1: that the FBI is investigating contacts between other members of

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Speaker 1: the Trump campaign and Russian intelligence in the year before

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Speaker 1: the election. These developments have raised concerns about possible disarray

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Speaker 1: and the administration's national security apparatus, and also questions about

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Speaker 1: whether anyone in the Trump campaign broke the law in

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Speaker 1: their contacts with the Russian government. Here to talk to

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Speaker 1: us about all of this are Stephen Vladick, a professor

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Speaker 1: at the University of Texas Law School, and William Banks,

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Speaker 1: founding director of the Institute for National Security and counter Terrorism.

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Speaker 1: Thank you both for being here. Steve, Let's start with

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Speaker 1: the law itself, the law that um people may have violate.

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Speaker 1: To hear that there were some questions to whether General

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Speaker 1: Flynn and violated. It is that called the Logan Act.

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Speaker 1: Tell us about what the Logan Act is. The Logan Act,

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Speaker 1: I think is the favorite, uh, dusty old chestnut that

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Speaker 1: folks like to drag out anytime someone we don't like

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Speaker 1: does something in the foreign policy that we disagree with. UM.

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Speaker 1: This is a see statute, not a typo. UM. The

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Speaker 1: Congress passed basically in response to an incident where a

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Speaker 1: guy named Dr George Logan, who was a prominent Democratic

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Speaker 1: Republican basically a Jeffersonian in Philadelphia, UM, took America's foreign

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Speaker 1: policy with France into his own hands, tried to negotiate

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Speaker 1: with the French government, even though President Adams and Congress

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Speaker 1: at the time we're very much more pro British UM.

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Speaker 1: And the statute purports to prohibit anyone, acting without the

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Speaker 1: authority of the United States UM, from engaging in correspondence

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Speaker 1: or communications with foreign governments that has the effect of

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Speaker 1: influencing our foreign policy. It's never been successfully used. The

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Speaker 1: last indictment was in early nineteenth century. There are serious

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Speaker 1: constitutional objections to it, including that it's a content based

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Speaker 1: restriction on speech, and that it's vague. UM. And you know,

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Speaker 1: I don't think that Jeff Sessions is going to be

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Speaker 1: in a big hurry to prosecute Mike Flynn. So it's

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Speaker 1: a fun academic exercise, but I think it's actually probably

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Speaker 1: not at the end of the day, what the real

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Speaker 1: headline is about Michael Flynn. William. Would it be possible

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Speaker 1: even to invoke it after it's been ignored for more

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Speaker 1: than two hundred years, and what are the optics of

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Speaker 1: doing that? I agree with with Steve that it's highly

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Speaker 1: unlikely that it's going to be invoked in this case.

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Speaker 1: It's a it's a political tool used by an administration

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Speaker 1: to control voices outside the government that they don't want

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Speaker 1: to have participating in a in a national security or

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Speaker 1: foreign affairs matter, and that's certainly not the case with Flynn. Well,

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Speaker 1: Steve it it may be impossible to enforce, but it's

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Speaker 1: a I mean, it is a real concern when you have,

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Speaker 1: you know, usual traditionally we've had kind of one president

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Speaker 1: at a time, as they say, and you want you

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Speaker 1: don't want private citizens conducting foreign policy, particularly when the

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Speaker 1: president is trying to do certain things and a new

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Speaker 1: president has been sworn in yet, so where is kind

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Speaker 1: of it may not be legally in something we can enforce.

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Speaker 1: But it has kind of drawn a line for people,

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Speaker 1: hasn't it about how they should behave? Yes? And no,

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Speaker 1: I mean I think the Logan APT, I mean, let's

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Speaker 1: be clear, the Logan APT itself wasn't directed at the

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Speaker 1: problem of presidential transitions. Um, right, I mean George Logan

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Speaker 1: was just a private citizen when Congress past that statute. Um.

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Speaker 1: The problem of presidential transitions is one Congress has actually

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Speaker 1: finally started to grapple within a series of statutes in

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Speaker 1: the last fifteen years. And I can totally imagine a

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Speaker 1: you know, narrower and much more focused, maybe non criminal

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Speaker 1: restriction on what kinds of contacts a transition team is

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Speaker 1: allowed to have with foreign governments. But I guess the

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Speaker 1: problem is that, you know, compared to that specific problem

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Speaker 1: and to the one president at a time, um, you

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Speaker 1: know phenomenon, the Logan Act is a is a broadsword,

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Speaker 1: not a scalpel. And so you know, I think it's

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Speaker 1: the issue here is not so much whether we ever

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Speaker 1: want individual members of transition teams, you know, set it

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Speaker 1: on the stage for the foreign policy that their president

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Speaker 1: is soon going to be conducting, but rather you know,

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Speaker 1: is this really the way to do it or should

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Speaker 1: Congress go back to the drawing board? Um. And with

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Speaker 1: regard to Flynn, I think the issue is, you know,

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Speaker 1: separate from the Logan Act, is in other kinds of

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Speaker 1: of legal hot water William. That brings up the FBI

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Speaker 1: question Flynn in the early days of the Trump presidency

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Speaker 1: about his conversations, and investigators believe Flynn was not entirely

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Speaker 1: forthcoming to put it. According to The New York Times,

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Speaker 1: if the authorities conclude that Flynn knowingly lied to the FBI,

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Speaker 1: could that expose him to a felony charge from making

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Speaker 1: false statements? It could. And in contrast to the Logan Act,

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Speaker 1: it's uh, it's it's written in such a way that

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Speaker 1: that it pretty directly applies to what Flynn did. It

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Speaker 1: just says that anyone who is within the jurisdiction of

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Speaker 1: the government the United States knowingly and willfully makes materially false,

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Speaker 1: fictitious of fraudulent statement is is engaged in felonious behavior.

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Speaker 1: So I think there's a fair chance. So it's the

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Speaker 1: old adage that the cover up is worse than the crime, right,

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Speaker 1: So I agree with with Steve about the Logan Act,

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Speaker 1: and and it's it's not going to happen in this

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Speaker 1: case that he will be sanctioned for what he actually

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Speaker 1: might have talked to the Russian ambassador about, but he

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Speaker 1: may well be sanctioned for a line about it to

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Speaker 1: the Bureau. As the Trump administration considers possible replacements for

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Speaker 1: former National Security Advisor Michael Flynn, and the FBI is

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Speaker 1: reportedly investigating contacts between Trump campaign officials and Russian intelligence

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Speaker 1: during last year's campaign. Russia has deployed a land based

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Speaker 1: cruise missile that American officials say violates the Intermediate Range

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Speaker 1: Nuclear Forces or i n F Treaty. So things with

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Speaker 1: Russia and on the federal levels seem to be getting

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Speaker 1: very mixed up. We have been talking with Stephen Vladika,

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Speaker 1: professor at the University of Texas School of Law, and

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Speaker 1: William Banks of the Institute for National Security and counter

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Speaker 1: Terrorism about the resignation of an ESSA director Flynn and

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Speaker 1: the investigations going on, and we're going to talk about

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Speaker 1: this and the and the treat possible treaty valation. Um. William,

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Speaker 1: Let's start though, by continuing to talk about the the

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Speaker 1: situation involving the possible Logan Act violations or communications with

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Speaker 1: the Russian government. You know, we were talking about the

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Speaker 1: fact that there's not really a lot of prosecutorial possibility

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Speaker 1: here and the and the law is kind of vague.

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Speaker 1: Are there other things that we could expect from a

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Speaker 1: legal standpoint, perhaps in Congress that might happen as a

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Speaker 1: result of UM people being concerned about improper contacts between

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Speaker 1: Trump campaign officials and the Russians. Well, as many of

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Speaker 1: your listeners know, the Congress is ality determined to begin

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Speaker 1: investigation of the of the Russian involvement in the sixteen

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Speaker 1: presidential election on the basis of the intelligence communities reports

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Speaker 1: that were released before that the Trump administration took office.

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Speaker 1: And I think that those they're simply additional impetus to

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Speaker 1: get those investigations going now and to broaden their scope

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Speaker 1: to include a potential involvement of Trump campaign officials during

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Speaker 1: the pendency of the election. Steve Senator Mark Warner of

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Speaker 1: the Senate Intelligence Committee investigation said that they're they're going

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Speaker 1: to go forward. When he was he said it would

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Speaker 1: be appropriate for Flynn to testify, but he wouldn't say

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Speaker 1: whether or not they had decided to subpoena him. Would

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Speaker 1: his testimony be part of any intensive investigation. I mean,

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Speaker 1: I would think it would have to be. But you know,

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Speaker 1: it's it's telling that that quote comes from Senator Warner,

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Speaker 1: who you know, is in the minority right now on

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Speaker 1: the Senate Intelligence Committee. Seems like the real question is

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Speaker 1: whether it's the Republican leadership um Speaker Ryan, Senator McConnell,

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Speaker 1: and the chairs of the relevant committees who are actually

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Speaker 1: going to show any interest in having any kind of investigation,

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Speaker 1: any kinds of hearings. You know, Congressman Nunez, who's the

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Speaker 1: chair of the House Intelligence Committee, said yesterday that he

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Speaker 1: thought the far bigger issue coming out of this news

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Speaker 1: regarding General flann Um was the leaking um and the

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Speaker 1: possibility that someone had disclosed the contents of you know,

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Speaker 1: secret surveillance in violation of the Foreign Intelligence Surveillance Act.

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Speaker 1: So long as Congress thanks that's the story here, I'm

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Speaker 1: not especially optimistic that Senator Warner is going to have

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Speaker 1: his chaps. Well. Another story we have, William is the

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Speaker 1: fact that there's American officials are now saying that Russia

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Speaker 1: has violated a treaty, which is of course you know,

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Speaker 1: legal obligation between countries that goes back to the Reagan administration. Um,

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Speaker 1: by deploying this land based missile system, can you give

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Speaker 1: us some backstory what this treaty is and what the

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Speaker 1: violation might be. Well, the treaty is is a thirty

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Speaker 1: year old treaty, has to do with land based weaponry,

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Speaker 1: and and indeed there's I think a pretty good case

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Speaker 1: to be made that that the deployment of this particular

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Speaker 1: unit by the Russians would be a treaty violation. It's

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Speaker 1: you know, it requires some interpretation. Uh. The questions will

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Speaker 1: be uh carefully visited inside our government as well as

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Speaker 1: in NATO. The larger context here, I think, though, is

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Speaker 1: what what plays the Russians are making now because of

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Speaker 1: the transition, the youth of the Trump administration, the inexperience

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Speaker 1: of many who are now in key positions in the administration,

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Speaker 1: so being aggressive in Ukraine rolling out this weapon system. Uh.

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Speaker 1: They had a near miss with a US ship in

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Speaker 1: the in the region, I believe it was yesterday. Uh.

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Speaker 1: Seems like they're testing US in a in a number

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Speaker 1: of ways, including this UH involvement in the in the

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Speaker 1: election before the fact Steve considering that it's difficult to

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Speaker 1: figure out where Trump's position on Russia is any one day.

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Speaker 1: He had some tweets today that seemed to say something

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Speaker 1: different than he said before. Is there any Do you

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Speaker 1: think there's any likelihood that they would actually do something

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Speaker 1: if they found that Russia had violated the Arms Control treaty?

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Speaker 1: I wouldn't hold my breast. I mean, I think that

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Speaker 1: I think there's a there's a real question here about

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Speaker 1: what the diplomatic priorities of the federal government are visa

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Speaker 1: the Russia. You know, Secretary Tillerson made a number of

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Speaker 1: statements during his confirmation hearing um that he was not

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Speaker 1: potentially as sympathetic as as some other administration. Um. But

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Speaker 1: I just have a hard time thinking that if we

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Speaker 1: were going to draw some kind of diplomatic redline with Russia,

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Speaker 1: that this would be it. Um. And I think that's

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Speaker 1: the real problem, because then the question becomes, what does

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Speaker 1: Russia do next? UM. I think there's no question, as

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Speaker 1: Bill rightly says, you know that Russia's gonna sort of

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Speaker 1: poke and prod and try to figure out how it

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Speaker 1: can take maximum advantage m of the inexperience and frankly

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Speaker 1: the incompetence of the new administration, and then the question

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Speaker 1: just becomes if it's not going to be the White

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Speaker 1: House that pushes back who's left? And I think that's

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Speaker 1: why the attention once again has to come back to

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Speaker 1: Congress UM and to whether, for example, there should be

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Speaker 1: legislation to prevent the president from you know, laterally lifting

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Speaker 1: the sanctions against Russia UM and other legislative measures, you know,

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Speaker 1: until the less Congress really starts assertive its own institutional

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Speaker 1: role here, we're going to see more of this, not

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Speaker 1: less of it. Well, it certainly seems as though these

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Speaker 1: stories are not going to be going away anytime soon.

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Speaker 1: Our thanks to Professor Stephen Vladdock of the University of

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Speaker 1: Texas School of Law, and to WILLIAMS. William Banks, the

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Speaker 1: founding director of the Institute for National Security Encounter Terrorism,

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Speaker 1: for joining us here today on Bloomberg Law. Coming up

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Speaker 1: on Bloomberg Law, the Justice Department has sued Direct TV

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Speaker 1: and A T and T over colluding with competitors about

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Speaker 1: the Los Angeles Dodgers television channel. Apparently they don't want

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Speaker 1: to pay the prices the time Warner Cable has been

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Speaker 1: trying to get them to pay and a lot of

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Speaker 1: people in LA have not been able to watch the

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Speaker 1: Dodgers for some time, so action by the Justice Department

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Speaker 1: coming up here on Bloomberg Law with Michael Best and

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Speaker 1: June Grassoe. This is Bloomberg