Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 2: Prosecutors anticipate resting their criminal case against Sam Bankman Freed
Speaker 2: by next Thursday. They've built their case around the testimony
Speaker 2: of three members of Bankman Freed's inner circle who pleaded
Speaker 2: guilty and testified against him. Now the question is whether
Speaker 2: Bankman Freed will testify in his own defense, a question
Speaker 2: that's fraught with perils for the defense. Joining me to
Speaker 2: discuss the case, as former federal prosecutor Michael Weinstein of
Speaker 2: Cole Shotts, it seems like the prosecution has built an
Speaker 2: almost insurmountable case against Sam Bankman Freed. How strong is
Speaker 2: this case compared to others you've seen.
Speaker 3: It's an extremely strong case for three reasons. Number one,
Speaker 3: because they have first hand individuals who were in the
Speaker 3: room at the table discussing certain acts those being criminal,
Speaker 3: which present a problem for Sam Bacon Freed. They also
Speaker 3: have documents and slack messages and text messages which are
Speaker 3: problematic as well, which supports the discussions, the improper discussions
Speaker 3: that were being held. And then number three, they have
Speaker 3: the industry itself is fraught with problems and the representations
Speaker 3: that were made to investors and things of that nature
Speaker 3: which he has said publicly prior to the criminal charges
Speaker 3: being brought. So that's a trifecta of problems for mister Freed,
Speaker 3: and I think his defense lawyers are having a difficult
Speaker 3: time chipping away at some of the things that are
Speaker 3: being said through testimony, notwithstanding the great efforts that they
Speaker 3: are trying to make.
Speaker 2: Yeah, it seems as if even in pre trial motions,
Speaker 2: the defense seemed to lose almost every important pre trial motion.
Speaker 2: Judge Caplan also seems to be keeping them very tightly
Speaker 2: in check. One of the reporters in the courtroom told
Speaker 2: me that, for example, during the cross examination of Caroline Ellison,
Speaker 2: there were objections to form, objections, objections that were constantly
Speaker 2: sustained and they really couldn't make much headway.
Speaker 3: Yeah, so that's correct. So not only is the defense
Speaker 3: up against testimony and documents, they're up against the judge
Speaker 3: and the structure of the proceeding, and the judge prior
Speaker 3: to trial, for example, you know, prohibited certain of the
Speaker 3: defense witnesses that they wanted to bring in. Example number
Speaker 3: one is the expert from Britain that they wanted to
Speaker 3: bring in to talk about the terms and conditions. So
Speaker 3: their hands were tied from the start of this case,
Speaker 3: and that's really playing out now.
Speaker 2: In reality, those will be appealed. But how much are
Speaker 2: issues like that left to the discretion of the judge.
Speaker 2: I mean, we all know it's very difficult to get
Speaker 2: a conviction, assuming he's convicted overturned.
Speaker 4: How much is that in the discretion of the judge.
Speaker 3: A tremendous amount. The judge is the referee essentially, and
Speaker 3: he is able to call balls and strikes when necessary.
Speaker 3: And there is guidance through the appellate courts, through the
Speaker 3: Second Circuit for example, or through other rulings that the
Speaker 3: courts have made, or for instance, the Federal rules of
Speaker 3: criminal procedure guide the court in making those decisions. But
Speaker 3: the judge has given great latitude in determining the type
Speaker 3: of evidence, the relevance of that evidence, how it comes in,
Speaker 3: whether it comes in, whether it can be challenged, things
Speaker 3: of that nature.
Speaker 2: So you had these three witnesses who decided to cooperate
Speaker 2: with the state to our longtime friends of his ones
Speaker 2: a former girlfriend. Does that make their testimony more believable?
Speaker 3: I think it does, And the reason is because they're
Speaker 3: not nuanced to the scene. It's not as though for
Speaker 3: six months, you know, they dropped in out of the
Speaker 3: sky and then in that six month period there were
Speaker 3: some criminal acts. They gave a little bit of the
Speaker 3: longer history that they had with Sam Bank and free
Speaker 3: the run up to him starting the business, their involvement,
Speaker 3: their role in the company, and then ultimately it's spiraling
Speaker 3: out of control. And I think that gives them a
Speaker 3: little bit of credibility in the jury's eyes, because you know,
Speaker 3: they can give a little bit more context, and when
Speaker 3: they speak to things like what Sam Bankuenfried was saying
Speaker 3: at some of those meetings and some of the decisions
Speaker 3: he was making, they can give some context to that
Speaker 3: because they've known him so long. And so from my perspective,
Speaker 3: when you've got that longtime relationship that favors the government.
Speaker 3: Insofar as the testimony coming out and really hurting the defendant,
Speaker 3: what do.
Speaker 2: You think about I mean, it happens all the time,
Speaker 2: but the judge allowing in all the evidence about you know,
Speaker 2: Caroline Nelson testifying about his image and how he thought
Speaker 2: his hair helped his image and trading in luxury cars,
Speaker 2: for more inexpensive cars and then even profane messages he
Speaker 2: sent to reporters about regulators after the collapse. When is
Speaker 2: that kind of testimony too much?
Speaker 3: And that's the judge's kind of role as a referee,
Speaker 3: to say, come on, that's a little too much. Is
Speaker 3: it relevant for the nice time for you to emphasize
Speaker 3: that he wanted to have a nice image. But look,
Speaker 3: the government's putting it in because they want to show
Speaker 3: what was his motivation in stealing the money and moving
Speaker 3: the money and transferring the money. They want to show
Speaker 3: that his motivation was to look good and feel good
Speaker 3: and to give this impression to people throughout, you know,
Speaker 3: the United States or throughout the world that he was
Speaker 3: this successful mogul and that he really was an ourcle
Speaker 3: into the future, and you know, him being an oracle
Speaker 3: is the aura that he tried to create. But of
Speaker 3: course the reality is much different.
Speaker 2: By all accounts, the defense didn't make much headway in
Speaker 2: the cross examination of those three Inner Circle witnesses. They
Speaker 2: did poke some holes in the testimony here and there.
Speaker 2: Does that really help in the.
Speaker 3: End, I think the answers probably know. It's like chopping
Speaker 3: down an oak tree. You can make a couple of
Speaker 3: swings with an axe, but that's not going to take
Speaker 3: down the tree.
Speaker 2: Is there any point at which the jury looks at
Speaker 2: these three, who are you saying, yeah, I took part
Speaker 2: in this, but he directed me to do it, and
Speaker 2: then all of a sudden, you know, maya copo, may
Speaker 2: a couple when things collapse and they get caught and
Speaker 2: decide to flip. Is there any point that the jury says,
Speaker 2: why are these three getting off?
Speaker 4: And he's here?
Speaker 3: Well, that certainly is how the defense wants to frame it.
Speaker 3: I think the difficulty with that is they're not getting off.
Speaker 3: They've played guilty to very significant and very material criminal
Speaker 3: charges which will carry with its significant penalties. And that's
Speaker 3: the response if and when the defense says to them
Speaker 3: during a cross examination and did say to them, well,
Speaker 3: aren't you getting a sweetheart deal now? And that's always
Speaker 3: the push and pull when you have a cooperating witness
Speaker 3: on the witness stand, is you know, are they getting
Speaker 3: really a sweetheart deal? And that's where the jury to
Speaker 3: assess their credibility to a jury to assess are they
Speaker 3: testifying only to get a better deal? Here? It doesn't
Speaker 3: look like they got a great deal here. They knew
Speaker 3: that they were kind of in their tracks and wanted
Speaker 3: to save some semblance of the remainder of their life
Speaker 3: by pleading guilty and then moving on with their life.
Speaker 3: But as a consequence of that, they had to testify
Speaker 3: against their former friend.
Speaker 4: Do you think they'll actually serve jail time.
Speaker 3: I think they have real exposure. Yes, there's a lot
Speaker 3: of money here. I think a lot of eyes are
Speaker 3: going to be looking at all of these pleas and
Speaker 3: I think they have some real problems here.
Speaker 4: What do you think.
Speaker 2: About the prosecution portraying him as a criminal mastermind?
Speaker 3: Look, I mean, I think that's somewhat of the narrative
Speaker 3: that the government has to tell. They don't want to
Speaker 3: suggest that he was this ninety twenty year old kid
Speaker 3: just you know, playing with house money. I think they
Speaker 3: have to make him out to be a little bit
Speaker 3: more sinister, a little bit more systematic. I'm a little
Speaker 3: bit more conniving. That is just part of their narrative.
Speaker 3: I mean, when I look at all of these guys,
Speaker 3: the three cooperating witnesses who played guilty in Sambank and Free,
Speaker 3: it just reminds me of when I sit in the room,
Speaker 3: and I look at my nieces and nephews who were
Speaker 3: in their twenties, and I look and I think to myself,
Speaker 3: could they be entrusted with ten? I need thirty billion dollars?
Speaker 3: And he answers no, you know, And it's remarkable to
Speaker 3: me that very sophisticated investors gave so much money repeatedly
Speaker 3: to a group of people that were in their mid twenties.
Speaker 3: And we're, you know, waving a shiny object, which was cryptocurrency.
Speaker 3: So that's a larger takeaway from this situation. But I
Speaker 3: think all four of them have some real exposure here.
Speaker 2: The big question is at every criminal trial is whether
Speaker 2: the defendant will take the stand in his own defense?
Speaker 4: What do you think?
Speaker 3: I think that's a great question, and someone in Vegas
Speaker 3: is probably betting on that. I think he may want
Speaker 3: to do something. His lawyers may want to do something
Speaker 3: very different, although I think they're setting it up with
Speaker 3: the recent argument that he's not getting his medication, he's
Speaker 3: not able to assist in his own defense. So you
Speaker 3: can kind of see the ground work being laid where
Speaker 3: they may not call him because he's not getting his medication,
Speaker 3: and maybe they're setting up an appeal issue that he
Speaker 3: maybe would have testified, But look, the reason testify is
Speaker 3: because they believe that they can tell their story better
Speaker 3: and they can provide an explanation and they can justify
Speaker 3: what they did and how they did it. Here, that's very,
Speaker 3: very difficult because he's going to have to counter three
Speaker 3: people who were in the room during these discussions, who
Speaker 3: all gave pretty consistent testimony. And for him to testify,
Speaker 3: of course, he's opening himself up and risking a pretty
Speaker 3: ferocious cross examination, and that is a real problem for him.
Speaker 2: In all the prior statements he's made. But well, I
Speaker 2: want to say it's his only hope, his only chance
Speaker 2: to convince perhaps one or two jurors correct.
Speaker 3: I mean, he may feel, and his defense lawyers may feel,
Speaker 3: what have I got to lose? We're deep in the
Speaker 3: hole here, and this may be the only ladder out
Speaker 3: is to have him testify and to humanize the situation
Speaker 3: and to talk about how he really tried to do
Speaker 3: all the right things and he wasn't misleading anyone, and
Speaker 3: he really tried to make, you know, good decisions, and
Speaker 3: he relied upon other people. He relied upon Miss Ellison,
Speaker 3: relied upon mister Gary Wong, things of that nature. But again,
Speaker 3: as good as he thinks his testimony is going to
Speaker 3: come off, the prosecution is salivating, waiting in the wings
Speaker 3: to cross examine him and to use a multitude of
Speaker 3: statements he's made previously in their examination, and that's going
Speaker 3: to be quite fascinating.
Speaker 2: If he does take the stand, one thing is sure,
Speaker 2: the courtroom will be packed. Thanks so much, Michael. That's
Speaker 2: former federal prosecutor Michael Weinstein of Coal Shots. Coming up next,
Speaker 2: the latest gag order on Donald Trump. My speech has
Speaker 2: been taken away from me.
Speaker 3: I'm a candidate that's running for office, and I'm not
Speaker 3: allowed to stay.
Speaker 1: This is a real road.
Speaker 3: It's all coming out of the Developer of Justice.
Speaker 5: Is all set up by bike and is thuff that
Speaker 5: he's surrounded with.
Speaker 2: Of course, contrary to his statements, Donald Trump was in
Speaker 2: fact speaking to the media after federal Judge Tanya Chuckkin
Speaker 2: imposed a partial gag order on him. The order bars
Speaker 2: the former president from publicly criticizing witnesses, prosecutors, court staff,
Speaker 2: and their families involved in the Special Council's case against
Speaker 2: him for attempts to overturn the twenty twenty election. The
Speaker 2: judge found that Trump's barrage of attacks on those in
Speaker 2: the case posed a significant and immediate risk of intimidating
Speaker 2: witnesses and jeopardizing the safety of the public servants involved.
Speaker 2: Joining me is former prosecutor Rebecca Roythee, a professor at
Speaker 2: New York Law School. Do Trump's attacks on the judiciary
Speaker 2: stand alone?
Speaker 4: Have we ever seen anything quite like this before?
Speaker 5: I mean, I think the unique thing about it. Normally,
Speaker 5: you know, somebody who's embroiled in a legal system, a
Speaker 5: criminal defendant, you know, it doesn't seem so unusual for
Speaker 5: that person to attack the system that has targeted him
Speaker 5: or her. But of course the scale and the prominence
Speaker 5: of this defendant makes a difference.
Speaker 2: This goes back to when he was president and he
Speaker 2: was calling out judges and the chief Justice. There are
Speaker 2: no Trump judges or Obama judges.
Speaker 3: Right.
Speaker 5: It goes back, and it's a little bit relentless, like
Speaker 5: it's not just you know, one individual instance of a
Speaker 5: court case or a lawsuit or a ruling that came
Speaker 5: out against him, Because you know, I do think that
Speaker 5: you know, you can see politicians saying similar sorts of
Speaker 5: things in isolated instances, But I think it's the repeated
Speaker 5: nature of the comments and his styles of the way
Speaker 5: that they're made an exaggerated, extreme version of what somebody
Speaker 5: else might say in those instances.
Speaker 2: Do you think because they're exaggerated and extreme, a lot
Speaker 2: of people, most people just you know, disregard them. Or
Speaker 2: do you think that his attacks do have an effect
Speaker 2: on the standing of the judiciary in the public's eye.
Speaker 5: It's an empirical question and a hard one to know
Speaker 5: for sure, but I think it's effective. You know, I
Speaker 5: think people are already skeptical, as we Americans are bred
Speaker 5: to be about government institutions, and that's a healthy kind
Speaker 5: of suspicion or questioning. But you know, I think he
Speaker 5: feeds on this and turns it into something that's closer
Speaker 5: to kind of paranoia that is not necessarily based in fact,
Speaker 5: and more concerning than anything else. And so, you know,
Speaker 5: I think he's been particularly effective in this particular regard
Speaker 5: lloiding both you know, vulnerabilities in the system and a
Speaker 5: culture of healthy questioning among citizens in America.
Speaker 2: So let's discuss what judges have done and can do.
Speaker 2: Tell us about the competing interests the judges have to
Speaker 2: consider so.
Speaker 5: Judges are in a difficult position because they're weighing the
Speaker 5: importance of the integrity of their proceedings and concern for
Speaker 5: manipulation of witnesses, potential jurors, and any other kind of
Speaker 5: undermining of the fairness of the process, along with a
Speaker 5: extremely important First Amendment right that anyone has to speak out,
Speaker 5: but particularly somebody who's running for president of the United States.
Speaker 2: At the hearing, Judge chuck In apparently was a pretty
Speaker 2: heated discussion at times. She said, one could come away
Speaker 2: from these arguments with a mistake in understanding that the
Speaker 2: First Amendment is an absolute right.
Speaker 4: That's false.
Speaker 2: The First Amendment yields to the administration of justice. I
Speaker 2: know it's not an absolute right, but does it always
Speaker 2: yield to the administration of justice?
Speaker 5: Well, whenever there is a compelling government interest for limiting speech,
Speaker 5: speech can be limited in certain ways. And so you know,
Speaker 5: it is true that there are often restrictions on people's
Speaker 5: speech when that speech interferes with the administration of justice
Speaker 5: or the integrity of a judicial system. I think it
Speaker 5: would be wrong to say absolutely the administration of justice
Speaker 5: is a more important value than First Amendment rights, and
Speaker 5: I don't think that's exactly what she was trying to say,
Speaker 5: but it would be misinterpreted it and it would be
Speaker 5: wrong if that's what she was suggesting. But what I
Speaker 5: think is accurate is that First Amendment law is designed
Speaker 5: to balance different interests than While the First Amendment weighs
Speaker 5: extremely strongly, and especially in the context of political speech,
Speaker 5: is almost absolute, it's not entirely and it does, in
Speaker 5: certain circumstances give way, and the law is clear about that.
Speaker 5: So she's right in saying that it's not an absolute right,
Speaker 5: but I think it is an exaggeration to say it
Speaker 5: always yields.
Speaker 2: She decided to sort of come to some middle ground
Speaker 2: almost not quite right.
Speaker 5: So what she decided to do was to draw a
Speaker 5: limited gag order that restricts the former president's speech in
Speaker 5: a certain regard, but allows him to engage in sort
Speaker 5: of broader, more rhetorical criticisms of the justice system, but
Speaker 5: limits his ability or restricts his ability to single out
Speaker 5: particular players and criticize those particular individuals actors you know,
Speaker 5: who are involved in this particular prosecution.
Speaker 2: You know, he's slammed judges and the district attorneys who
Speaker 2: are prosecuting him. For example, he's unleashed a barrage of
Speaker 2: criticism and ridicule against the New York Attorney General who's
Speaker 2: coming after his business empire for years, and even in
Speaker 2: court has made motions saying this is a political prosecution,
Speaker 2: et cetera. So I'm wondering if that's on the same
Speaker 2: level as calling out the judges in.
Speaker 5: Terms of the level of harm. I think it's even
Speaker 5: potentially greater in part because, especially on the federal level,
Speaker 5: what he's doing is exploiting a kind of weakness in
Speaker 5: our system, which is our federal system of prosecution is
Speaker 5: embedded under the executive So even if there is a
Speaker 5: special prosecutor, which there is in this case, that prosecutor
Speaker 5: report to the Attorney General, who in turn is a
Speaker 5: cabinet member, and at that's chosen by the president. So
Speaker 5: while I believe President Biden when he says he's not
Speaker 5: involved in this prosecution, there are no legal limits or
Speaker 5: are no absolute barriers to his involvement. That you know,
Speaker 5: that is the way that our system works. So I
Speaker 5: think that on some level the public is aware of this,
Speaker 5: and therefore he gets more traction from arguing that prosecutors
Speaker 5: are at least in the federal system, you know, dominated
Speaker 5: or driven by this political animus. And I think that judges,
Speaker 5: while it's true, you know, are also political appointees, it
Speaker 5: is a separate branch. And I think on some level
Speaker 5: people grasp that. And there's still a greater faith, even
Speaker 5: if it is waning, in judges and the judicial system
Speaker 5: than there is in these individual prosecutions. And so, you know,
Speaker 5: I do think it's it does more damage in part
Speaker 5: because of the weaknesses that are built into our system.
Speaker 2: That even his attorney, John Lauro argued in the court
Speaker 2: that Trump was being punished by the Biden administration during
Speaker 2: an election cycle. He also argued that this was the
Speaker 2: sign of a nation veering into totalitarianism. And those arguments
Speaker 2: seem to me more like for the public than they
Speaker 2: are for the judge.
Speaker 5: Yeah, I mean, I don't think any of that is
Speaker 5: going to be effective before the judge, but this is
Speaker 5: a refrain that they are going to repeat at every
Speaker 5: moment that they possibly can. And I think the separation
Speaker 5: of these legal cases from the political case that he's
Speaker 5: making has collapsed, and essentially he has combined both. And
Speaker 5: of course, in the courtroom. There will be restrictions, but
Speaker 5: insofar as they bleed over and that there's so much
Speaker 5: public attention that he's going to use every moment he
Speaker 5: can to hammer this political message. But has been relatively
Speaker 5: successful for him.
Speaker 2: And I've listened to some of his speeches on the
Speaker 2: campaign trail recently.
Speaker 4: It may be difficult for him.
Speaker 2: He's going to have to have a whole new shtick
Speaker 2: because he goes back again and again to talking about
Speaker 2: the judges and the prosecutors. You know, they're deranged, talking
Speaker 2: about the system being against him, and he circles back
Speaker 2: to that over and over. So he's going to have
Speaker 2: to do a complete redo of his rallies, I guess right.
Speaker 5: You know, it also raises the question of how the
Speaker 5: judge is going to enforce her order, because you know,
Speaker 5: it's one thing to issue this s gag order and
Speaker 5: in a way it's throwing down a gauntlet. I mean,
Speaker 5: if he does decide to violate that order, what is
Speaker 5: she going to do? And so you know there are
Speaker 5: a lot of legal options open to her, but you
Speaker 5: know those options again are problematic. I mean, we are
Speaker 5: in this unique situation not because the prosecution, you know,
Speaker 5: is being handled and manipulated by the Biden administration that
Speaker 5: has a grudge against its adversary, but rather because the
Speaker 5: former president has created the situation, and you know, he's
Speaker 5: created it and he you know, plans to run with
Speaker 5: it in this particular way, and that is largely what's
Speaker 5: unique about it. What's unique about it is not just
Speaker 5: the alleged crimes that he may have committed, but of
Speaker 5: course the way that he approaches litigation and approaches these
Speaker 5: criminal cases. It's just so belligerent and you know, pushing
Speaker 5: every last limit and forcing the judge to respond. And so,
Speaker 5: you know, I don't know what she would do under
Speaker 5: those circumstances, but I think it's equally possible that he
Speaker 5: ignores her order as it would be that he, you know,
Speaker 5: alters his speech entirely on the campaign trail.
Speaker 2: Hours after the gag order, at a campaign event in Iowa,
Speaker 2: Trump said, quote, a judge doesn't like me too much.
Speaker 2: Her whole life is not liking me.
Speaker 4: Then you know what a gag order is.
Speaker 2: You can't speak badly about your opponent. Maybe he got
Speaker 2: the message, at least for the time being, because it
Speaker 2: doesn't seem like.
Speaker 4: That really violates her order, does it.
Speaker 2: Judge doesn't like A judge doesn't like.
Speaker 5: Me much, right, So that's what I mean. He's going
Speaker 5: to push the limits of this order.
Speaker 3: I don't know.
Speaker 5: If I were interpreting it, I certainly wouldn't say he's
Speaker 5: crossed over line. But he's come very very close. And
Speaker 5: given the fact that he's not the most precise with language, No,
Speaker 5: when what point does he actually walk over to the
Speaker 5: other side? And I mean, at this point it's useful
Speaker 5: to him. I think now he can use the gag
Speaker 5: order because the gag order itself has political value for him,
Speaker 5: because he doesn't have to attack the judge. If he's
Speaker 5: attacking the gag order, you know, if he's saying, well,
Speaker 5: here it is, you know, proof positive the Biden administration
Speaker 5: is now muzzling me and I can't speak. You know,
Speaker 5: this is just a different way of saying the exact
Speaker 5: same things. And you know that he's allowed to do
Speaker 5: and he'll do that so long as that's effective. You know,
Speaker 5: when it wears out, does he go back to his
Speaker 5: old stick? I just don't really know.
Speaker 2: She mentioned some options if he violates the gag order,
Speaker 2: including admonishing Trump in court, which I believe has been
Speaker 2: done before by a couple of roses, imposing financial penalties,
Speaker 2: home detention, or evoking his pre trial release.
Speaker 4: She also said that.
Speaker 2: The prosecutors wouldn't have to make a motion for her
Speaker 2: to rule on this. You know, she could do it
Speaker 2: to a sponte And I wonder why she added that,
Speaker 2: I mean, does she really want to get into monitoring
Speaker 2: his speech.
Speaker 5: I definitely don't think she does. I think what she
Speaker 5: is trying to do is to emphasize the power of
Speaker 5: a court order that once it's in place, that it's
Speaker 5: easier to enforce, you know, than these vague conditions of
Speaker 5: release that you know may or may not have been violated,
Speaker 5: and that requires some kind of adversary process that she's
Speaker 5: saying this could be very quick and very swift and severe,
Speaker 5: and that is just a way of trying to get
Speaker 5: him not to do it. Whether that's successful, I don't know,
Speaker 5: because he also understands that her hands are tied in
Speaker 5: part by his role. That to put him on home arrest,
Speaker 5: or to put him in prison while he's running for president,
Speaker 5: I mean, that would be so extreme and there's no
Speaker 5: chance that she's going to do that. So she puts
Speaker 5: it on the table. Of course, legally she's allowed to
Speaker 5: do it, but she's never going to do it. And
Speaker 5: to what extent is he here to, you know, push
Speaker 5: that to the point at which she either does it
Speaker 5: or she doesn't do it. And if she does it,
Speaker 5: it's this great political windfall for him because he can
Speaker 5: pretend that, you know, I mean, he can say this
Speaker 5: is a Biden administration locking me up so I won't win,
Speaker 5: you know, or he gets away with it, and so
Speaker 5: you know, in a way, it's sort of a genius move.
Speaker 5: I mean, this is Trump's particular genius, his ability to
Speaker 5: do this and his willingness to do this.
Speaker 2: Maybe she's hoping that at least it will stop him
Speaker 2: from commenting about witnesses if nothing else. I mean, that
Speaker 2: seems to be the greatest say.
Speaker 5: I mean, right, I think that's right, and that she
Speaker 5: has to assert herself as controlling her courtroom in some manner.
Speaker 5: I mean, she can't just let this go by, and so,
Speaker 5: you know, I think this is as good a solution
Speaker 5: as any. There are certain restrictions. You know, she's not
Speaker 5: and my guess is going to these things when he
Speaker 5: runs right up to the line. But you know, there's
Speaker 5: an outer limit and he can't go too far beyond it,
Speaker 5: and I think, you know, threatening particular witnesses, calling people
Speaker 5: out by name, the kind of thing he did in
Speaker 5: the New York civil case where he posted a picture
Speaker 5: of a core clerk, like, none of that is going
Speaker 5: to happen, I mean, and that's just making a mockery
Speaker 5: of the court room like that that you know, it's
Speaker 5: appropriate for her to say no there.
Speaker 2: A day after the judge issued this order, Trump filed
Speaker 2: notice that he's going to appeal it. Do you think
Speaker 2: that this order will withstand and appeal?
Speaker 5: My guess is it will. It was narrowly drawn, and
Speaker 5: it isn't you know, too far away from what judges
Speaker 5: do in situations like this. I think the you know,
Speaker 5: untested territory is just the stature and the nature of
Speaker 5: the defendant here. And he is running for president and
Speaker 5: so the core political speech is like at the very
Speaker 5: core of the very core, and so you know, it
Speaker 5: is possible that an appellate court could disagree with her.
Speaker 5: But Mike, you know, there's a lot of deference here
Speaker 5: and she hasn't done anything wild or extremely unusual here.
Speaker 5: So my guess is that there won't be a reversal
Speaker 5: of the gag order.
Speaker 2: You know.
Speaker 5: My guess is it stands and he runs right up
Speaker 5: to the line and kind of pushes it, and she
Speaker 5: admonishes them. And this is kind of a game that
Speaker 5: goes all the way up until March.
Speaker 2: It'll be interesting to see how the Appellate Court rules
Speaker 2: on this. Thanks so much, Rebecca. That's professor Rebecca Royfie
Speaker 2: of New York Law School coming up. What the ghost
Speaker 2: gun decision says about the Supreme Court.
Speaker 4: This is bloomberg.
Speaker 2: The Supreme Court seems to be telling the Fifth Circuit
Speaker 2: and a Texas federal judge no means no. In August,
Speaker 2: the Court voted to allow the Biden administrations regulations aimed
Speaker 2: at ghost guns to remain in effect, blocking a nationwide
Speaker 2: injunction by Texas Federal Judge Rit O'Connor. But after that
Speaker 2: order was issued, O'Connor again stepped in to block the
Speaker 2: regulations as applied to two manufacturers, and so on Monday,
Speaker 2: court once again reinstated the Biden Administration's regulation on ghost guns.
Speaker 2: Joining me is Heidi Lee Feldman, a professor at Georgetown Law.
Speaker 4: So let's go.
Speaker 2: Back to the August decision five to four, where the
Speaker 2: Supreme Court blocked a nationwide injunction by Texas Federal Judge
Speaker 2: Ried O'Connor and allowed the government to keep enforcing the
Speaker 2: regulations on ghost guns.
Speaker 4: Should that have.
Speaker 2: Been the end of this until the case was fully litigated.
Speaker 1: One would have thought so. And that's certainly ultimately the
Speaker 1: position the government took. It was very peculiar that after
Speaker 1: O'Connor ruled that, they then sought an injunction pending appeal.
Speaker 1: But that is an alteration in the procedural posture of
Speaker 1: the case. They didn't give any new reasons for seeking
Speaker 1: an injunction while the case was pending, and that was
Speaker 1: I think the really controversial thing. Nothing had changed in
Speaker 1: the facts or the law that would be relevant to
Speaker 1: granting an injunction. So ordinarily, if a party did that,
Speaker 1: the judge would just deny it because they had just
Speaker 1: had an injunction overturned by the Supreme Court. And of
Speaker 1: course in this case, Judge O'Connor granted the injunction and
Speaker 1: didn't give any new reasons, and the court really just
Speaker 1: put the kebash on that and said no, no.
Speaker 2: Also, the Fifth Circuit upheld his order.
Speaker 3: Yeah.
Speaker 1: Look, there's several very contested matters that were that are
Speaker 1: driving this litigation. Ghost gun manufacturers come in and say,
Speaker 1: we object to this ATF rule making which seems to
Speaker 1: require us to take all sorts of steps that people
Speaker 1: who make firearms have to take. We're arguing we're not
Speaker 1: firearms manufacturers, were parts suppliers. So that dynamic introduces guns
Speaker 1: into the mix. Then we have a federal agency ATF,
Speaker 1: which has its own long complicated history, But we have
Speaker 1: a judiciary, certainly O'Connor and the Fifth Circuit, that's very
Speaker 1: keen to invalidate agency rulemaking. So I think the Fifth
Speaker 1: Circuit as a whole was very moved by that agenda,
Speaker 1: and so they do uphold O'Connor's order, and so ultimately,
Speaker 1: of course, the Supreme Court is rejecting the Fifth Circuits
Speaker 1: position as well as O'Connor's position on the injunction. But
Speaker 1: the fact that the Supreme Court took that position isn't
Speaker 1: an indication of how they would ultimately rule on the merits,
Speaker 1: as much as I think it was a rejection of
Speaker 1: the challenge to the authority of their earlier ruling.
Speaker 2: The Solicitor General seemed to emphasize that. In an unusually
Speaker 2: sharp filing, she told the justices that the Fifth Circuit
Speaker 2: and District Court Judge O'Connor have effectively countermanded this court's
Speaker 2: authoritative determinations about the status quo that should prevail during
Speaker 2: appellate proceedings in this case, and that.
Speaker 4: The courts should not tolerate that affront.
Speaker 2: So the Court's August order that we just talked about
Speaker 2: was a five to four decision where Chief Justice John
Speaker 2: Roberts and Justice Amy Cony Barrett joined.
Speaker 4: The Court's three liberals.
Speaker 2: No justice publicly dissented from this order that was handed down.
Speaker 2: Do you think that that suggests just that they're even
Speaker 2: getting annoyed with the Fifth Circuit and judges like Federal
Speaker 2: Judge O'Connor, or is it more that they're not opposed
Speaker 2: to the ghost gun regulations.
Speaker 1: It's very hard to read tea leaves from these orders
Speaker 1: that are issued without opinions, and these are, you know,
Speaker 1: orders that relate to not the final merits on the case.
Speaker 1: So I want to sound a note of caution. Having
Speaker 1: founded that note of caution, I think that there are
Speaker 1: judges that justice is on the court who may be
Speaker 1: very unsympathetic to the ATF rulemaking related to ghost guns,
Speaker 1: who realize that you simply cannot operate our system of
Speaker 1: litigating cases case by case and letting different courts reach
Speaker 1: different conclusions if they disagree and seeing what emerges up
Speaker 1: through the process, and that what rit O'Connor and the
Speaker 1: Fifth Circuit wanted to do absolutely disrupts that process. It
Speaker 1: also wastes the Supreme Court's time. I mean, they do
Speaker 1: not want to have to keep issuing redundant interlocutory orders.
Speaker 1: That's just completely inefficient for them. So I think you
Speaker 1: could have justices who may be less sympathetic to the
Speaker 1: idea of letting the ATF rule making stand or more
Speaker 1: sympathetic to relatively unfettered sales of ghost guns, who nevertheless
Speaker 1: see procedural chaos. That's a real threat from what the
Speaker 1: Fifth Circuit and Judge O'Connor did.
Speaker 2: The Fifth Circuit last term lost I think seven out
Speaker 2: of a cases at the Supreme Court, and they have
Speaker 2: a lot of cases before the Court this year, and
Speaker 2: many of them are from judges in Texas like rit
Speaker 2: O'Connor that seem to have novels, shall we say novel
Speaker 2: legal reasoning and their decisions.
Speaker 1: I mean, do you think we have to I think
Speaker 1: we have to use a stronger word. And the reason
Speaker 1: I think we have to use a stronger words than
Speaker 1: novel is look in sophisticated litigation in federal courts, advocates
Speaker 1: and courts are advancing the law. So there's often something
Speaker 1: novel in what they argue, in what courts hold. That's
Speaker 1: neither unexpected nor unusual. What is problematic is when you
Speaker 1: have a court and the federal judiciary in Texas, the
Speaker 1: district court level is like this and the Fifth Circuit
Speaker 1: is like this, that is receptive to extreme arguments. They're
Speaker 1: not just creative novel. They are highly contentious. Now, if
Speaker 1: you have a court that is receptive to that, maybe
Speaker 1: some of those highly contentious and highly extreme arguments will
Speaker 1: ultimately be vindicated. But the more extreme the substance is
Speaker 1: of a position that's being taken, the more cautious general
Speaker 1: courts are in imposing big procedural consequences until those big
Speaker 1: arguments and positions go through the appellate pros of review.
Speaker 1: So I think that the Fifth Circuit and the Texas
Speaker 1: district courts in general generate a lot of extreme positions.
Speaker 1: What we saw here was this intersection of extreme positions
Speaker 1: and willingness first to issue a very sweeping injunction on
Speaker 1: the basis of the extreme position nationwide injunction, and then
Speaker 1: to sort of double down on that after the Supreme
Speaker 1: Court said it wasn't appropriate. The combination of extreme positions
Speaker 1: and aggressiveness about imposing consequences before the appellate process has
Speaker 1: played out thoroughly is a way of really throwing a
Speaker 1: spanner in the gears of adjudication, as the Federal Court
Speaker 1: understands it, and they're just not going to tolerate that.
Speaker 2: More to come on this, that's for sure, Thanks so much.
Speaker 2: That's Professor Heidi Lee Felman of Georgetown Law