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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 2: Prosecutors anticipate resting their criminal case against Sam Bankman Freed

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Speaker 2: by next Thursday. They've built their case around the testimony

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Speaker 2: of three members of Bankman Freed's inner circle who pleaded

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Speaker 2: guilty and testified against him. Now the question is whether

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Speaker 2: Bankman Freed will testify in his own defense, a question

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Speaker 2: that's fraught with perils for the defense. Joining me to

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Speaker 2: discuss the case, as former federal prosecutor Michael Weinstein of

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Speaker 2: Cole Shotts, it seems like the prosecution has built an

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Speaker 2: almost insurmountable case against Sam Bankman Freed. How strong is

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Speaker 2: this case compared to others you've seen.

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Speaker 3: It's an extremely strong case for three reasons. Number one,

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Speaker 3: because they have first hand individuals who were in the

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Speaker 3: room at the table discussing certain acts those being criminal,

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Speaker 3: which present a problem for Sam Bacon Freed. They also

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Speaker 3: have documents and slack messages and text messages which are

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Speaker 3: problematic as well, which supports the discussions, the improper discussions

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Speaker 3: that were being held. And then number three, they have

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Speaker 3: the industry itself is fraught with problems and the representations

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Speaker 3: that were made to investors and things of that nature

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Speaker 3: which he has said publicly prior to the criminal charges

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Speaker 3: being brought. So that's a trifecta of problems for mister Freed,

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Speaker 3: and I think his defense lawyers are having a difficult

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Speaker 3: time chipping away at some of the things that are

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Speaker 3: being said through testimony, notwithstanding the great efforts that they

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Speaker 3: are trying to make.

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Speaker 2: Yeah, it seems as if even in pre trial motions,

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Speaker 2: the defense seemed to lose almost every important pre trial motion.

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Speaker 2: Judge Caplan also seems to be keeping them very tightly

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Speaker 2: in check. One of the reporters in the courtroom told

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Speaker 2: me that, for example, during the cross examination of Caroline Ellison,

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Speaker 2: there were objections to form, objections, objections that were constantly

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Speaker 2: sustained and they really couldn't make much headway.

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Speaker 3: Yeah, so that's correct. So not only is the defense

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Speaker 3: up against testimony and documents, they're up against the judge

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Speaker 3: and the structure of the proceeding, and the judge prior

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Speaker 3: to trial, for example, you know, prohibited certain of the

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Speaker 3: defense witnesses that they wanted to bring in. Example number

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Speaker 3: one is the expert from Britain that they wanted to

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Speaker 3: bring in to talk about the terms and conditions. So

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Speaker 3: their hands were tied from the start of this case,

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Speaker 3: and that's really playing out now.

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Speaker 2: In reality, those will be appealed. But how much are

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Speaker 2: issues like that left to the discretion of the judge.

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Speaker 2: I mean, we all know it's very difficult to get

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Speaker 2: a conviction, assuming he's convicted overturned.

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Speaker 4: How much is that in the discretion of the judge.

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Speaker 3: A tremendous amount. The judge is the referee essentially, and

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Speaker 3: he is able to call balls and strikes when necessary.

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Speaker 3: And there is guidance through the appellate courts, through the

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Speaker 3: Second Circuit for example, or through other rulings that the

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Speaker 3: courts have made, or for instance, the Federal rules of

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Speaker 3: criminal procedure guide the court in making those decisions. But

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Speaker 3: the judge has given great latitude in determining the type

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Speaker 3: of evidence, the relevance of that evidence, how it comes in,

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Speaker 3: whether it comes in, whether it can be challenged, things

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Speaker 3: of that nature.

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Speaker 2: So you had these three witnesses who decided to cooperate

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Speaker 2: with the state to our longtime friends of his ones

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Speaker 2: a former girlfriend. Does that make their testimony more believable?

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Speaker 3: I think it does, And the reason is because they're

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Speaker 3: not nuanced to the scene. It's not as though for

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Speaker 3: six months, you know, they dropped in out of the

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Speaker 3: sky and then in that six month period there were

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Speaker 3: some criminal acts. They gave a little bit of the

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Speaker 3: longer history that they had with Sam Bank and free

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Speaker 3: the run up to him starting the business, their involvement,

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Speaker 3: their role in the company, and then ultimately it's spiraling

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Speaker 3: out of control. And I think that gives them a

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Speaker 3: little bit of credibility in the jury's eyes, because you know,

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Speaker 3: they can give a little bit more context, and when

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Speaker 3: they speak to things like what Sam Bankuenfried was saying

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Speaker 3: at some of those meetings and some of the decisions

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Speaker 3: he was making, they can give some context to that

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Speaker 3: because they've known him so long. And so from my perspective,

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Speaker 3: when you've got that longtime relationship that favors the government.

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Speaker 3: Insofar as the testimony coming out and really hurting the defendant,

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Speaker 3: what do.

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Speaker 2: You think about I mean, it happens all the time,

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Speaker 2: but the judge allowing in all the evidence about you know,

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Speaker 2: Caroline Nelson testifying about his image and how he thought

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Speaker 2: his hair helped his image and trading in luxury cars,

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Speaker 2: for more inexpensive cars and then even profane messages he

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Speaker 2: sent to reporters about regulators after the collapse. When is

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Speaker 2: that kind of testimony too much?

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Speaker 3: And that's the judge's kind of role as a referee,

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Speaker 3: to say, come on, that's a little too much. Is

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Speaker 3: it relevant for the nice time for you to emphasize

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Speaker 3: that he wanted to have a nice image. But look,

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Speaker 3: the government's putting it in because they want to show

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Speaker 3: what was his motivation in stealing the money and moving

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Speaker 3: the money and transferring the money. They want to show

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Speaker 3: that his motivation was to look good and feel good

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Speaker 3: and to give this impression to people throughout, you know,

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Speaker 3: the United States or throughout the world that he was

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Speaker 3: this successful mogul and that he really was an ourcle

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Speaker 3: into the future, and you know, him being an oracle

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Speaker 3: is the aura that he tried to create. But of

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Speaker 3: course the reality is much different.

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Speaker 2: By all accounts, the defense didn't make much headway in

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Speaker 2: the cross examination of those three Inner Circle witnesses. They

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Speaker 2: did poke some holes in the testimony here and there.

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Speaker 2: Does that really help in the.

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Speaker 3: End, I think the answers probably know. It's like chopping

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Speaker 3: down an oak tree. You can make a couple of

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Speaker 3: swings with an axe, but that's not going to take

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Speaker 3: down the tree.

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Speaker 2: Is there any point at which the jury looks at

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Speaker 2: these three, who are you saying, yeah, I took part

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Speaker 2: in this, but he directed me to do it, and

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Speaker 2: then all of a sudden, you know, maya copo, may

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Speaker 2: a couple when things collapse and they get caught and

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Speaker 2: decide to flip. Is there any point that the jury says,

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Speaker 2: why are these three getting off?

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Speaker 4: And he's here?

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Speaker 3: Well, that certainly is how the defense wants to frame it.

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Speaker 3: I think the difficulty with that is they're not getting off.

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Speaker 3: They've played guilty to very significant and very material criminal

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Speaker 3: charges which will carry with its significant penalties. And that's

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Speaker 3: the response if and when the defense says to them

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Speaker 3: during a cross examination and did say to them, well,

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Speaker 3: aren't you getting a sweetheart deal now? And that's always

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Speaker 3: the push and pull when you have a cooperating witness

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Speaker 3: on the witness stand, is you know, are they getting

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Speaker 3: really a sweetheart deal? And that's where the jury to

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Speaker 3: assess their credibility to a jury to assess are they

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Speaker 3: testifying only to get a better deal? Here? It doesn't

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Speaker 3: look like they got a great deal here. They knew

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Speaker 3: that they were kind of in their tracks and wanted

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Speaker 3: to save some semblance of the remainder of their life

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Speaker 3: by pleading guilty and then moving on with their life.

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Speaker 3: But as a consequence of that, they had to testify

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Speaker 3: against their former friend.

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Speaker 4: Do you think they'll actually serve jail time.

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Speaker 3: I think they have real exposure. Yes, there's a lot

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Speaker 3: of money here. I think a lot of eyes are

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Speaker 3: going to be looking at all of these pleas and

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Speaker 3: I think they have some real problems here.

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Speaker 4: What do you think.

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Speaker 2: About the prosecution portraying him as a criminal mastermind?

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Speaker 3: Look, I mean, I think that's somewhat of the narrative

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Speaker 3: that the government has to tell. They don't want to

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Speaker 3: suggest that he was this ninety twenty year old kid

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Speaker 3: just you know, playing with house money. I think they

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Speaker 3: have to make him out to be a little bit

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Speaker 3: more sinister, a little bit more systematic. I'm a little

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Speaker 3: bit more conniving. That is just part of their narrative.

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Speaker 3: I mean, when I look at all of these guys,

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Speaker 3: the three cooperating witnesses who played guilty in Sambank and Free,

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Speaker 3: it just reminds me of when I sit in the room,

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Speaker 3: and I look at my nieces and nephews who were

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Speaker 3: in their twenties, and I look and I think to myself,

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Speaker 3: could they be entrusted with ten? I need thirty billion dollars?

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Speaker 3: And he answers no, you know, And it's remarkable to

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Speaker 3: me that very sophisticated investors gave so much money repeatedly

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Speaker 3: to a group of people that were in their mid twenties.

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Speaker 3: And we're, you know, waving a shiny object, which was cryptocurrency.

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Speaker 3: So that's a larger takeaway from this situation. But I

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Speaker 3: think all four of them have some real exposure here.

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Speaker 2: The big question is at every criminal trial is whether

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Speaker 2: the defendant will take the stand in his own defense?

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Speaker 4: What do you think?

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Speaker 3: I think that's a great question, and someone in Vegas

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Speaker 3: is probably betting on that. I think he may want

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Speaker 3: to do something. His lawyers may want to do something

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Speaker 3: very different, although I think they're setting it up with

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Speaker 3: the recent argument that he's not getting his medication, he's

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Speaker 3: not able to assist in his own defense. So you

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Speaker 3: can kind of see the ground work being laid where

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Speaker 3: they may not call him because he's not getting his medication,

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Speaker 3: and maybe they're setting up an appeal issue that he

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Speaker 3: maybe would have testified, But look, the reason testify is

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Speaker 3: because they believe that they can tell their story better

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Speaker 3: and they can provide an explanation and they can justify

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Speaker 3: what they did and how they did it. Here, that's very,

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Speaker 3: very difficult because he's going to have to counter three

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Speaker 3: people who were in the room during these discussions, who

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Speaker 3: all gave pretty consistent testimony. And for him to testify,

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Speaker 3: of course, he's opening himself up and risking a pretty

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Speaker 3: ferocious cross examination, and that is a real problem for him.

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Speaker 2: In all the prior statements he's made. But well, I

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Speaker 2: want to say it's his only hope, his only chance

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Speaker 2: to convince perhaps one or two jurors correct.

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Speaker 3: I mean, he may feel, and his defense lawyers may feel,

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Speaker 3: what have I got to lose? We're deep in the

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Speaker 3: hole here, and this may be the only ladder out

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Speaker 3: is to have him testify and to humanize the situation

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Speaker 3: and to talk about how he really tried to do

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Speaker 3: all the right things and he wasn't misleading anyone, and

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Speaker 3: he really tried to make, you know, good decisions, and

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Speaker 3: he relied upon other people. He relied upon Miss Ellison,

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Speaker 3: relied upon mister Gary Wong, things of that nature. But again,

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Speaker 3: as good as he thinks his testimony is going to

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Speaker 3: come off, the prosecution is salivating, waiting in the wings

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Speaker 3: to cross examine him and to use a multitude of

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Speaker 3: statements he's made previously in their examination, and that's going

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Speaker 3: to be quite fascinating.

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Speaker 2: If he does take the stand, one thing is sure,

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Speaker 2: the courtroom will be packed. Thanks so much, Michael. That's

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Speaker 2: former federal prosecutor Michael Weinstein of Coal Shots. Coming up next,

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Speaker 2: the latest gag order on Donald Trump. My speech has

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Speaker 2: been taken away from me.

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Speaker 3: I'm a candidate that's running for office, and I'm not

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Speaker 3: allowed to stay.

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Speaker 1: This is a real road.

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Speaker 3: It's all coming out of the Developer of Justice.

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Speaker 5: Is all set up by bike and is thuff that

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Speaker 5: he's surrounded with.

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Speaker 2: Of course, contrary to his statements, Donald Trump was in

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Speaker 2: fact speaking to the media after federal Judge Tanya Chuckkin

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Speaker 2: imposed a partial gag order on him. The order bars

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Speaker 2: the former president from publicly criticizing witnesses, prosecutors, court staff,

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Speaker 2: and their families involved in the Special Council's case against

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Speaker 2: him for attempts to overturn the twenty twenty election. The

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Speaker 2: judge found that Trump's barrage of attacks on those in

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Speaker 2: the case posed a significant and immediate risk of intimidating

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Speaker 2: witnesses and jeopardizing the safety of the public servants involved.

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Speaker 2: Joining me is former prosecutor Rebecca Roythee, a professor at

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Speaker 2: New York Law School. Do Trump's attacks on the judiciary

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Speaker 2: stand alone?

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Speaker 4: Have we ever seen anything quite like this before?

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Speaker 5: I mean, I think the unique thing about it. Normally,

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Speaker 5: you know, somebody who's embroiled in a legal system, a

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Speaker 5: criminal defendant, you know, it doesn't seem so unusual for

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Speaker 5: that person to attack the system that has targeted him

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Speaker 5: or her. But of course the scale and the prominence

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Speaker 5: of this defendant makes a difference.

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Speaker 2: This goes back to when he was president and he

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Speaker 2: was calling out judges and the chief Justice. There are

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Speaker 2: no Trump judges or Obama judges.

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Speaker 3: Right.

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Speaker 5: It goes back, and it's a little bit relentless, like

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Speaker 5: it's not just you know, one individual instance of a

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Speaker 5: court case or a lawsuit or a ruling that came

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Speaker 5: out against him, Because you know, I do think that

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Speaker 5: you know, you can see politicians saying similar sorts of

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Speaker 5: things in isolated instances, But I think it's the repeated

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Speaker 5: nature of the comments and his styles of the way

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Speaker 5: that they're made an exaggerated, extreme version of what somebody

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Speaker 5: else might say in those instances.

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Speaker 2: Do you think because they're exaggerated and extreme, a lot

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Speaker 2: of people, most people just you know, disregard them. Or

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Speaker 2: do you think that his attacks do have an effect

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Speaker 2: on the standing of the judiciary in the public's eye.

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Speaker 5: It's an empirical question and a hard one to know

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Speaker 5: for sure, but I think it's effective. You know, I

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Speaker 5: think people are already skeptical, as we Americans are bred

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Speaker 5: to be about government institutions, and that's a healthy kind

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Speaker 5: of suspicion or questioning. But you know, I think he

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Speaker 5: feeds on this and turns it into something that's closer

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Speaker 5: to kind of paranoia that is not necessarily based in fact,

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Speaker 5: and more concerning than anything else. And so, you know,

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Speaker 5: I think he's been particularly effective in this particular regard

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Speaker 5: lloiding both you know, vulnerabilities in the system and a

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Speaker 5: culture of healthy questioning among citizens in America.

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Speaker 2: So let's discuss what judges have done and can do.

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Speaker 2: Tell us about the competing interests the judges have to

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Speaker 2: consider so.

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Speaker 5: Judges are in a difficult position because they're weighing the

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Speaker 5: importance of the integrity of their proceedings and concern for

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Speaker 5: manipulation of witnesses, potential jurors, and any other kind of

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Speaker 5: undermining of the fairness of the process, along with a

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Speaker 5: extremely important First Amendment right that anyone has to speak out,

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Speaker 5: but particularly somebody who's running for president of the United States.

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Speaker 2: At the hearing, Judge chuck In apparently was a pretty

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Speaker 2: heated discussion at times. She said, one could come away

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Speaker 2: from these arguments with a mistake in understanding that the

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Speaker 2: First Amendment is an absolute right.

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Speaker 4: That's false.

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Speaker 2: The First Amendment yields to the administration of justice. I

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Speaker 2: know it's not an absolute right, but does it always

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Speaker 2: yield to the administration of justice?

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Speaker 5: Well, whenever there is a compelling government interest for limiting speech,

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Speaker 5: speech can be limited in certain ways. And so you know,

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Speaker 5: it is true that there are often restrictions on people's

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Speaker 5: speech when that speech interferes with the administration of justice

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Speaker 5: or the integrity of a judicial system. I think it

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Speaker 5: would be wrong to say absolutely the administration of justice

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Speaker 5: is a more important value than First Amendment rights, and

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Speaker 5: I don't think that's exactly what she was trying to say,

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Speaker 5: but it would be misinterpreted it and it would be

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Speaker 5: wrong if that's what she was suggesting. But what I

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Speaker 5: think is accurate is that First Amendment law is designed

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Speaker 5: to balance different interests than While the First Amendment weighs

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Speaker 5: extremely strongly, and especially in the context of political speech,

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Speaker 5: is almost absolute, it's not entirely and it does, in

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Speaker 5: certain circumstances give way, and the law is clear about that.

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Speaker 5: So she's right in saying that it's not an absolute right,

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Speaker 5: but I think it is an exaggeration to say it

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Speaker 5: always yields.

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Speaker 2: She decided to sort of come to some middle ground

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Speaker 2: almost not quite right.

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Speaker 5: So what she decided to do was to draw a

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Speaker 5: limited gag order that restricts the former president's speech in

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Speaker 5: a certain regard, but allows him to engage in sort

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Speaker 5: of broader, more rhetorical criticisms of the justice system, but

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Speaker 5: limits his ability or restricts his ability to single out

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Speaker 5: particular players and criticize those particular individuals actors you know,

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Speaker 5: who are involved in this particular prosecution.

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Speaker 2: You know, he's slammed judges and the district attorneys who

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Speaker 2: are prosecuting him. For example, he's unleashed a barrage of

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Speaker 2: criticism and ridicule against the New York Attorney General who's

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Speaker 2: coming after his business empire for years, and even in

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Speaker 2: court has made motions saying this is a political prosecution,

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Speaker 2: et cetera. So I'm wondering if that's on the same

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Speaker 2: level as calling out the judges in.

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Speaker 5: Terms of the level of harm. I think it's even

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Speaker 5: potentially greater in part because, especially on the federal level,

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Speaker 5: what he's doing is exploiting a kind of weakness in

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Speaker 5: our system, which is our federal system of prosecution is

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Speaker 5: embedded under the executive So even if there is a

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Speaker 5: special prosecutor, which there is in this case, that prosecutor

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Speaker 5: report to the Attorney General, who in turn is a

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Speaker 5: cabinet member, and at that's chosen by the president. So

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Speaker 5: while I believe President Biden when he says he's not

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Speaker 5: involved in this prosecution, there are no legal limits or

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Speaker 5: are no absolute barriers to his involvement. That you know,

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Speaker 5: that is the way that our system works. So I

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Speaker 5: think that on some level the public is aware of this,

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Speaker 5: and therefore he gets more traction from arguing that prosecutors

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Speaker 5: are at least in the federal system, you know, dominated

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Speaker 5: or driven by this political animus. And I think that judges,

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Speaker 5: while it's true, you know, are also political appointees, it

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Speaker 5: is a separate branch. And I think on some level

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Speaker 5: people grasp that. And there's still a greater faith, even

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Speaker 5: if it is waning, in judges and the judicial system

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Speaker 5: than there is in these individual prosecutions. And so, you know,

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Speaker 5: I do think it's it does more damage in part

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Speaker 5: because of the weaknesses that are built into our system.

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Speaker 2: That even his attorney, John Lauro argued in the court

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Speaker 2: that Trump was being punished by the Biden administration during

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Speaker 2: an election cycle. He also argued that this was the

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Speaker 2: sign of a nation veering into totalitarianism. And those arguments

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Speaker 2: seem to me more like for the public than they

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Speaker 2: are for the judge.

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Speaker 5: Yeah, I mean, I don't think any of that is

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Speaker 5: going to be effective before the judge, but this is

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Speaker 5: a refrain that they are going to repeat at every

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Speaker 5: moment that they possibly can. And I think the separation

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Speaker 5: of these legal cases from the political case that he's

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Speaker 5: making has collapsed, and essentially he has combined both. And

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Speaker 5: of course, in the courtroom. There will be restrictions, but

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Speaker 5: insofar as they bleed over and that there's so much

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Speaker 5: public attention that he's going to use every moment he

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Speaker 5: can to hammer this political message. But has been relatively

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Speaker 5: successful for him.

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Speaker 2: And I've listened to some of his speeches on the

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Speaker 2: campaign trail recently.

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Speaker 4: It may be difficult for him.

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Speaker 2: He's going to have to have a whole new shtick

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Speaker 2: because he goes back again and again to talking about

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Speaker 2: the judges and the prosecutors. You know, they're deranged, talking

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Speaker 2: about the system being against him, and he circles back

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Speaker 2: to that over and over. So he's going to have

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Speaker 2: to do a complete redo of his rallies, I guess right.

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Speaker 5: You know, it also raises the question of how the

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Speaker 5: judge is going to enforce her order, because you know,

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Speaker 5: it's one thing to issue this s gag order and

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Speaker 5: in a way it's throwing down a gauntlet. I mean,

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Speaker 5: if he does decide to violate that order, what is

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Speaker 5: she going to do? And so you know there are

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Speaker 5: a lot of legal options open to her, but you

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Speaker 5: know those options again are problematic. I mean, we are

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Speaker 5: in this unique situation not because the prosecution, you know,

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Speaker 5: is being handled and manipulated by the Biden administration that

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Speaker 5: has a grudge against its adversary, but rather because the

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Speaker 5: former president has created the situation, and you know, he's

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Speaker 5: created it and he you know, plans to run with

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Speaker 5: it in this particular way, and that is largely what's

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Speaker 5: unique about it. What's unique about it is not just

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Speaker 5: the alleged crimes that he may have committed, but of

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Speaker 5: course the way that he approaches litigation and approaches these

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Speaker 5: criminal cases. It's just so belligerent and you know, pushing

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Speaker 5: every last limit and forcing the judge to respond. And so,

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Speaker 5: you know, I don't know what she would do under

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Speaker 5: those circumstances, but I think it's equally possible that he

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Speaker 5: ignores her order as it would be that he, you know,

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Speaker 5: alters his speech entirely on the campaign trail.

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Speaker 2: Hours after the gag order, at a campaign event in Iowa,

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Speaker 2: Trump said, quote, a judge doesn't like me too much.

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Speaker 2: Her whole life is not liking me.

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Speaker 4: Then you know what a gag order is.

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Speaker 2: You can't speak badly about your opponent. Maybe he got

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Speaker 2: the message, at least for the time being, because it

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Speaker 2: doesn't seem like.

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Speaker 4: That really violates her order, does it.

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Speaker 2: Judge doesn't like A judge doesn't like.

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Speaker 5: Me much, right, So that's what I mean. He's going

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Speaker 5: to push the limits of this order.

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Speaker 3: I don't know.

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Speaker 5: If I were interpreting it, I certainly wouldn't say he's

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Speaker 5: crossed over line. But he's come very very close. And

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Speaker 5: given the fact that he's not the most precise with language, No,

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Speaker 5: when what point does he actually walk over to the

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Speaker 5: other side? And I mean, at this point it's useful

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Speaker 5: to him. I think now he can use the gag

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Speaker 5: order because the gag order itself has political value for him,

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Speaker 5: because he doesn't have to attack the judge. If he's

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Speaker 5: attacking the gag order, you know, if he's saying, well,

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Speaker 5: here it is, you know, proof positive the Biden administration

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Speaker 5: is now muzzling me and I can't speak. You know,

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Speaker 5: this is just a different way of saying the exact

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Speaker 5: same things. And you know that he's allowed to do

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Speaker 5: and he'll do that so long as that's effective. You know,

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Speaker 5: when it wears out, does he go back to his

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Speaker 5: old stick? I just don't really know.

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Speaker 2: She mentioned some options if he violates the gag order,

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Speaker 2: including admonishing Trump in court, which I believe has been

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Speaker 2: done before by a couple of roses, imposing financial penalties,

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Speaker 2: home detention, or evoking his pre trial release.

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Speaker 4: She also said that.

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Speaker 2: The prosecutors wouldn't have to make a motion for her

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Speaker 2: to rule on this. You know, she could do it

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Speaker 2: to a sponte And I wonder why she added that,

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Speaker 2: I mean, does she really want to get into monitoring

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Speaker 2: his speech.

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Speaker 5: I definitely don't think she does. I think what she

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Speaker 5: is trying to do is to emphasize the power of

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Speaker 5: a court order that once it's in place, that it's

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Speaker 5: easier to enforce, you know, than these vague conditions of

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Speaker 5: release that you know may or may not have been violated,

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Speaker 5: and that requires some kind of adversary process that she's

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Speaker 5: saying this could be very quick and very swift and severe,

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Speaker 5: and that is just a way of trying to get

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Speaker 5: him not to do it. Whether that's successful, I don't know,

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Speaker 5: because he also understands that her hands are tied in

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Speaker 5: part by his role. That to put him on home arrest,

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Speaker 5: or to put him in prison while he's running for president,

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Speaker 5: I mean, that would be so extreme and there's no

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Speaker 5: chance that she's going to do that. So she puts

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Speaker 5: it on the table. Of course, legally she's allowed to

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Speaker 5: do it, but she's never going to do it. And

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Speaker 5: to what extent is he here to, you know, push

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Speaker 5: that to the point at which she either does it

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Speaker 5: or she doesn't do it. And if she does it,

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Speaker 5: it's this great political windfall for him because he can

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Speaker 5: pretend that, you know, I mean, he can say this

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Speaker 5: is a Biden administration locking me up so I won't win,

439
00:23:25,359 --> 00:23:27,040
Speaker 5: you know, or he gets away with it, and so

440
00:23:27,480 --> 00:23:29,680
Speaker 5: you know, in a way, it's sort of a genius move.

441
00:23:29,720 --> 00:23:32,679
Speaker 5: I mean, this is Trump's particular genius, his ability to

442
00:23:32,680 --> 00:23:34,240
Speaker 5: do this and his willingness to do this.

443
00:23:35,000 --> 00:23:37,280
Speaker 2: Maybe she's hoping that at least it will stop him

444
00:23:37,280 --> 00:23:41,199
Speaker 2: from commenting about witnesses if nothing else. I mean, that

445
00:23:41,359 --> 00:23:43,080
Speaker 2: seems to be the greatest say.

446
00:23:43,359 --> 00:23:45,560
Speaker 5: I mean, right, I think that's right, and that she

447
00:23:45,680 --> 00:23:49,280
Speaker 5: has to assert herself as controlling her courtroom in some manner.

448
00:23:49,320 --> 00:23:51,439
Speaker 5: I mean, she can't just let this go by, and so,

449
00:23:51,880 --> 00:23:53,439
Speaker 5: you know, I think this is as good a solution

450
00:23:53,560 --> 00:23:56,480
Speaker 5: as any. There are certain restrictions. You know, she's not

451
00:23:56,720 --> 00:24:01,000
Speaker 5: and my guess is going to these things when he

452
00:24:01,119 --> 00:24:03,640
Speaker 5: runs right up to the line. But you know, there's

453
00:24:03,640 --> 00:24:06,840
Speaker 5: an outer limit and he can't go too far beyond it,

454
00:24:06,880 --> 00:24:10,320
Speaker 5: and I think, you know, threatening particular witnesses, calling people

455
00:24:10,320 --> 00:24:12,240
Speaker 5: out by name, the kind of thing he did in

456
00:24:12,280 --> 00:24:15,040
Speaker 5: the New York civil case where he posted a picture

457
00:24:15,160 --> 00:24:17,000
Speaker 5: of a core clerk, like, none of that is going

458
00:24:17,080 --> 00:24:19,040
Speaker 5: to happen, I mean, and that's just making a mockery

459
00:24:19,080 --> 00:24:20,879
Speaker 5: of the court room like that that you know, it's

460
00:24:20,920 --> 00:24:22,359
Speaker 5: appropriate for her to say no there.

461
00:24:22,720 --> 00:24:26,520
Speaker 2: A day after the judge issued this order, Trump filed

462
00:24:26,600 --> 00:24:29,240
Speaker 2: notice that he's going to appeal it. Do you think

463
00:24:29,320 --> 00:24:31,880
Speaker 2: that this order will withstand and appeal?

464
00:24:32,760 --> 00:24:35,679
Speaker 5: My guess is it will. It was narrowly drawn, and

465
00:24:35,760 --> 00:24:39,200
Speaker 5: it isn't you know, too far away from what judges

466
00:24:39,600 --> 00:24:42,280
Speaker 5: do in situations like this. I think the you know,

467
00:24:42,400 --> 00:24:47,080
Speaker 5: untested territory is just the stature and the nature of

468
00:24:47,119 --> 00:24:50,239
Speaker 5: the defendant here. And he is running for president and

469
00:24:50,359 --> 00:24:52,920
Speaker 5: so the core political speech is like at the very

470
00:24:52,960 --> 00:24:56,399
Speaker 5: core of the very core, and so you know, it

471
00:24:56,520 --> 00:24:59,440
Speaker 5: is possible that an appellate court could disagree with her.

472
00:24:59,480 --> 00:25:01,960
Speaker 5: But Mike, you know, there's a lot of deference here

473
00:25:02,000 --> 00:25:06,080
Speaker 5: and she hasn't done anything wild or extremely unusual here.

474
00:25:06,240 --> 00:25:09,080
Speaker 5: So my guess is that there won't be a reversal

475
00:25:09,119 --> 00:25:09,960
Speaker 5: of the gag order.

476
00:25:10,200 --> 00:25:10,320
Speaker 2: You know.

477
00:25:10,440 --> 00:25:13,040
Speaker 5: My guess is it stands and he runs right up

478
00:25:13,080 --> 00:25:14,919
Speaker 5: to the line and kind of pushes it, and she

479
00:25:14,960 --> 00:25:16,919
Speaker 5: admonishes them. And this is kind of a game that

480
00:25:16,920 --> 00:25:18,320
Speaker 5: goes all the way up until March.

481
00:25:18,680 --> 00:25:21,320
Speaker 2: It'll be interesting to see how the Appellate Court rules

482
00:25:21,359 --> 00:25:25,040
Speaker 2: on this. Thanks so much, Rebecca. That's professor Rebecca Royfie

483
00:25:25,200 --> 00:25:28,359
Speaker 2: of New York Law School coming up. What the ghost

484
00:25:28,359 --> 00:25:30,800
Speaker 2: gun decision says about the Supreme Court.

485
00:25:31,080 --> 00:25:31,919
Speaker 4: This is bloomberg.

486
00:25:32,200 --> 00:25:34,840
Speaker 2: The Supreme Court seems to be telling the Fifth Circuit

487
00:25:34,880 --> 00:25:39,640
Speaker 2: and a Texas federal judge no means no. In August,

488
00:25:39,640 --> 00:25:43,600
Speaker 2: the Court voted to allow the Biden administrations regulations aimed

489
00:25:43,640 --> 00:25:47,159
Speaker 2: at ghost guns to remain in effect, blocking a nationwide

490
00:25:47,160 --> 00:25:51,040
Speaker 2: injunction by Texas Federal Judge Rit O'Connor. But after that

491
00:25:51,200 --> 00:25:54,879
Speaker 2: order was issued, O'Connor again stepped in to block the

492
00:25:54,960 --> 00:25:59,520
Speaker 2: regulations as applied to two manufacturers, and so on Monday,

493
00:26:00,280 --> 00:26:05,960
Speaker 2: court once again reinstated the Biden Administration's regulation on ghost guns.

494
00:26:06,240 --> 00:26:09,800
Speaker 2: Joining me is Heidi Lee Feldman, a professor at Georgetown Law.

495
00:26:10,920 --> 00:26:11,760
Speaker 4: So let's go.

496
00:26:11,800 --> 00:26:15,199
Speaker 2: Back to the August decision five to four, where the

497
00:26:15,280 --> 00:26:20,639
Speaker 2: Supreme Court blocked a nationwide injunction by Texas Federal Judge

498
00:26:20,680 --> 00:26:24,320
Speaker 2: Ried O'Connor and allowed the government to keep enforcing the

499
00:26:24,400 --> 00:26:26,240
Speaker 2: regulations on ghost guns.

500
00:26:26,600 --> 00:26:27,240
Speaker 4: Should that have.

501
00:26:27,280 --> 00:26:31,560
Speaker 2: Been the end of this until the case was fully litigated.

502
00:26:31,119 --> 00:26:34,119
Speaker 1: One would have thought so. And that's certainly ultimately the

503
00:26:34,160 --> 00:26:38,760
Speaker 1: position the government took. It was very peculiar that after

504
00:26:39,080 --> 00:26:43,360
Speaker 1: O'Connor ruled that, they then sought an injunction pending appeal.

505
00:26:44,240 --> 00:26:48,280
Speaker 1: But that is an alteration in the procedural posture of

506
00:26:48,400 --> 00:26:53,520
Speaker 1: the case. They didn't give any new reasons for seeking

507
00:26:53,800 --> 00:26:57,000
Speaker 1: an injunction while the case was pending, and that was

508
00:26:57,040 --> 00:27:01,439
Speaker 1: I think the really controversial thing. Nothing had changed in

509
00:27:01,520 --> 00:27:04,359
Speaker 1: the facts or the law that would be relevant to

510
00:27:04,480 --> 00:27:08,640
Speaker 1: granting an injunction. So ordinarily, if a party did that,

511
00:27:09,160 --> 00:27:12,040
Speaker 1: the judge would just deny it because they had just

512
00:27:12,920 --> 00:27:17,959
Speaker 1: had an injunction overturned by the Supreme Court. And of

513
00:27:18,000 --> 00:27:23,040
Speaker 1: course in this case, Judge O'Connor granted the injunction and

514
00:27:23,119 --> 00:27:26,680
Speaker 1: didn't give any new reasons, and the court really just

515
00:27:26,880 --> 00:27:29,920
Speaker 1: put the kebash on that and said no, no.

516
00:27:30,400 --> 00:27:33,240
Speaker 2: Also, the Fifth Circuit upheld his order.

517
00:27:33,800 --> 00:27:34,159
Speaker 3: Yeah.

518
00:27:34,200 --> 00:27:38,359
Speaker 1: Look, there's several very contested matters that were that are

519
00:27:38,440 --> 00:27:42,400
Speaker 1: driving this litigation. Ghost gun manufacturers come in and say,

520
00:27:42,600 --> 00:27:47,119
Speaker 1: we object to this ATF rule making which seems to

521
00:27:47,920 --> 00:27:51,840
Speaker 1: require us to take all sorts of steps that people

522
00:27:51,880 --> 00:27:55,879
Speaker 1: who make firearms have to take. We're arguing we're not

523
00:27:56,000 --> 00:28:02,200
Speaker 1: firearms manufacturers, were parts suppliers. So that dynamic introduces guns

524
00:28:02,240 --> 00:28:06,359
Speaker 1: into the mix. Then we have a federal agency ATF,

525
00:28:06,440 --> 00:28:10,040
Speaker 1: which has its own long complicated history, But we have

526
00:28:10,080 --> 00:28:15,040
Speaker 1: a judiciary, certainly O'Connor and the Fifth Circuit, that's very

527
00:28:15,520 --> 00:28:22,800
Speaker 1: keen to invalidate agency rulemaking. So I think the Fifth

528
00:28:22,840 --> 00:28:27,040
Speaker 1: Circuit as a whole was very moved by that agenda,

529
00:28:27,400 --> 00:28:31,360
Speaker 1: and so they do uphold O'Connor's order, and so ultimately,

530
00:28:31,359 --> 00:28:34,600
Speaker 1: of course, the Supreme Court is rejecting the Fifth Circuits

531
00:28:34,600 --> 00:28:37,880
Speaker 1: position as well as O'Connor's position on the injunction. But

532
00:28:38,080 --> 00:28:41,120
Speaker 1: the fact that the Supreme Court took that position isn't

533
00:28:41,200 --> 00:28:44,400
Speaker 1: an indication of how they would ultimately rule on the merits,

534
00:28:44,440 --> 00:28:47,520
Speaker 1: as much as I think it was a rejection of

535
00:28:47,560 --> 00:28:50,760
Speaker 1: the challenge to the authority of their earlier ruling.

536
00:28:51,120 --> 00:28:56,280
Speaker 2: The Solicitor General seemed to emphasize that. In an unusually

537
00:28:56,360 --> 00:28:59,760
Speaker 2: sharp filing, she told the justices that the Fifth Circuit

538
00:28:59,800 --> 00:29:04,560
Speaker 2: and District Court Judge O'Connor have effectively countermanded this court's

539
00:29:04,600 --> 00:29:09,120
Speaker 2: authoritative determinations about the status quo that should prevail during

540
00:29:09,160 --> 00:29:11,480
Speaker 2: appellate proceedings in this case, and that.

541
00:29:11,640 --> 00:29:14,120
Speaker 4: The courts should not tolerate that affront.

542
00:29:14,560 --> 00:29:17,400
Speaker 2: So the Court's August order that we just talked about

543
00:29:17,480 --> 00:29:20,320
Speaker 2: was a five to four decision where Chief Justice John

544
00:29:20,440 --> 00:29:23,240
Speaker 2: Roberts and Justice Amy Cony Barrett joined.

545
00:29:22,920 --> 00:29:24,600
Speaker 4: The Court's three liberals.

546
00:29:24,800 --> 00:29:29,160
Speaker 2: No justice publicly dissented from this order that was handed down.

547
00:29:29,480 --> 00:29:33,560
Speaker 2: Do you think that that suggests just that they're even

548
00:29:33,560 --> 00:29:37,440
Speaker 2: getting annoyed with the Fifth Circuit and judges like Federal

549
00:29:37,520 --> 00:29:41,760
Speaker 2: Judge O'Connor, or is it more that they're not opposed

550
00:29:41,840 --> 00:29:43,400
Speaker 2: to the ghost gun regulations.

551
00:29:43,840 --> 00:29:48,680
Speaker 1: It's very hard to read tea leaves from these orders

552
00:29:48,680 --> 00:29:52,680
Speaker 1: that are issued without opinions, and these are, you know,

553
00:29:52,920 --> 00:29:57,600
Speaker 1: orders that relate to not the final merits on the case.

554
00:29:58,400 --> 00:30:01,400
Speaker 1: So I want to sound a note of caution. Having

555
00:30:01,440 --> 00:30:04,479
Speaker 1: founded that note of caution, I think that there are

556
00:30:04,560 --> 00:30:08,840
Speaker 1: judges that justice is on the court who may be

557
00:30:09,400 --> 00:30:14,440
Speaker 1: very unsympathetic to the ATF rulemaking related to ghost guns,

558
00:30:14,680 --> 00:30:20,960
Speaker 1: who realize that you simply cannot operate our system of

559
00:30:21,160 --> 00:30:26,760
Speaker 1: litigating cases case by case and letting different courts reach

560
00:30:26,800 --> 00:30:31,920
Speaker 1: different conclusions if they disagree and seeing what emerges up

561
00:30:31,920 --> 00:30:34,600
Speaker 1: through the process, and that what rit O'Connor and the

562
00:30:34,640 --> 00:30:39,400
Speaker 1: Fifth Circuit wanted to do absolutely disrupts that process. It

563
00:30:39,440 --> 00:30:43,880
Speaker 1: also wastes the Supreme Court's time. I mean, they do

564
00:30:43,920 --> 00:30:49,720
Speaker 1: not want to have to keep issuing redundant interlocutory orders.

565
00:30:50,120 --> 00:30:55,160
Speaker 1: That's just completely inefficient for them. So I think you

566
00:30:55,200 --> 00:31:00,720
Speaker 1: could have justices who may be less sympathetic to the

567
00:31:00,760 --> 00:31:04,080
Speaker 1: idea of letting the ATF rule making stand or more

568
00:31:04,120 --> 00:31:11,040
Speaker 1: sympathetic to relatively unfettered sales of ghost guns, who nevertheless

569
00:31:11,920 --> 00:31:17,240
Speaker 1: see procedural chaos. That's a real threat from what the

570
00:31:17,280 --> 00:31:20,200
Speaker 1: Fifth Circuit and Judge O'Connor did.

571
00:31:20,680 --> 00:31:24,280
Speaker 2: The Fifth Circuit last term lost I think seven out

572
00:31:24,280 --> 00:31:26,760
Speaker 2: of a cases at the Supreme Court, and they have

573
00:31:27,480 --> 00:31:30,520
Speaker 2: a lot of cases before the Court this year, and

574
00:31:30,760 --> 00:31:35,360
Speaker 2: many of them are from judges in Texas like rit

575
00:31:35,400 --> 00:31:39,440
Speaker 2: O'Connor that seem to have novels, shall we say novel

576
00:31:39,760 --> 00:31:41,560
Speaker 2: legal reasoning and their decisions.

577
00:31:42,160 --> 00:31:43,960
Speaker 1: I mean, do you think we have to I think

578
00:31:43,960 --> 00:31:47,240
Speaker 1: we have to use a stronger word. And the reason

579
00:31:47,240 --> 00:31:48,800
Speaker 1: I think we have to use a stronger words than

580
00:31:48,920 --> 00:31:55,720
Speaker 1: novel is look in sophisticated litigation in federal courts, advocates

581
00:31:55,760 --> 00:32:00,440
Speaker 1: and courts are advancing the law. So there's often something

582
00:32:00,760 --> 00:32:06,400
Speaker 1: novel in what they argue, in what courts hold. That's

583
00:32:06,440 --> 00:32:11,640
Speaker 1: neither unexpected nor unusual. What is problematic is when you

584
00:32:11,720 --> 00:32:16,160
Speaker 1: have a court and the federal judiciary in Texas, the

585
00:32:16,240 --> 00:32:19,520
Speaker 1: district court level is like this and the Fifth Circuit

586
00:32:19,600 --> 00:32:25,760
Speaker 1: is like this, that is receptive to extreme arguments. They're

587
00:32:25,760 --> 00:32:33,200
Speaker 1: not just creative novel. They are highly contentious. Now, if

588
00:32:33,240 --> 00:32:36,520
Speaker 1: you have a court that is receptive to that, maybe

589
00:32:36,560 --> 00:32:41,120
Speaker 1: some of those highly contentious and highly extreme arguments will

590
00:32:41,200 --> 00:32:46,280
Speaker 1: ultimately be vindicated. But the more extreme the substance is

591
00:32:46,360 --> 00:32:49,959
Speaker 1: of a position that's being taken, the more cautious general

592
00:32:50,280 --> 00:32:56,480
Speaker 1: courts are in imposing big procedural consequences until those big

593
00:32:56,600 --> 00:33:01,080
Speaker 1: arguments and positions go through the appellate pros of review.

594
00:33:01,680 --> 00:33:05,360
Speaker 1: So I think that the Fifth Circuit and the Texas

595
00:33:05,400 --> 00:33:10,880
Speaker 1: district courts in general generate a lot of extreme positions.

596
00:33:11,440 --> 00:33:16,680
Speaker 1: What we saw here was this intersection of extreme positions

597
00:33:17,120 --> 00:33:22,000
Speaker 1: and willingness first to issue a very sweeping injunction on

598
00:33:22,040 --> 00:33:26,800
Speaker 1: the basis of the extreme position nationwide injunction, and then

599
00:33:27,200 --> 00:33:29,680
Speaker 1: to sort of double down on that after the Supreme

600
00:33:29,680 --> 00:33:34,320
Speaker 1: Court said it wasn't appropriate. The combination of extreme positions

601
00:33:34,640 --> 00:33:40,680
Speaker 1: and aggressiveness about imposing consequences before the appellate process has

602
00:33:40,760 --> 00:33:44,360
Speaker 1: played out thoroughly is a way of really throwing a

603
00:33:44,400 --> 00:33:49,560
Speaker 1: spanner in the gears of adjudication, as the Federal Court

604
00:33:49,640 --> 00:33:53,200
Speaker 1: understands it, and they're just not going to tolerate that.

605
00:33:53,960 --> 00:33:56,440
Speaker 2: More to come on this, that's for sure, Thanks so much.

606
00:33:56,840 --> 00:33:59,800
Speaker 2: That's Professor Heidi Lee Felman of Georgetown Law