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

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Speaker 1: Former Trump campaign manager Paul Manifort is in the clear.

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Speaker 1: He no longer has to worry about the threat of

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Speaker 1: spending time in jail again. The manhattander's attempt to bring

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Speaker 1: a pardon proof case against Manafort has been foiled by

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Speaker 1: the state's top appeals court. Manafort was convicted of federal

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Speaker 1: financial crime and illegal lobbying charges and sentenced in twenty

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Speaker 1: nineteen to seven and a half years in prison. But

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Speaker 1: as Manhattan d A. Cyrus Vans and others anticipated Trump

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Speaker 1: pardon Manafort, two lower courts in New York had previously

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Speaker 1: ruled that Vance's case, which alleged mortgage fraud in other crimes,

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Speaker 1: was so similar to the federal case that it was

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Speaker 1: barred by the double jeopardy law. Joining me, as former

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Speaker 1: federal prosecutor Jennifer Rogers, who teaches at Columbia Law School,

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Speaker 1: the constitution bars double jeopardy, but the Supreme Court has

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Speaker 1: made an exception for federal and state crimes. Explained that, well,

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Speaker 1: I don't know that I would call it an exception.

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Speaker 1: It basically the double jeopardy premises that you can't be

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Speaker 1: tried twice for the same crime by the same government.

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Speaker 1: So in the federal system, that means that, you know,

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Speaker 1: if the U. S. Attorney charges you for bank fraud, um,

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Speaker 1: they can't turn around and later charge you again for

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Speaker 1: the same thank fraud. Nor can another US turney charge

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Speaker 1: you for that same bank fraud. But it doesn't apply

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Speaker 1: to other governments. So you know, we certainly don't have

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Speaker 1: any control over foreign government. So the US government can't

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Speaker 1: stop save France from charging someone for a crime even

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Speaker 1: if it's been charged in the US. But similarly, under

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Speaker 1: our federal system of government, the states are all separate

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Speaker 1: sovereigns as well, So the double jeopardy prohibition on charging

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Speaker 1: someone twice for the same time doesn't apply to a

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Speaker 1: state charge. So that's kind of generally speaking what the

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Speaker 1: federal constitution prohibition on double jeopardy sense. But in this case,

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Speaker 1: New York had its own double jeopardy law, that's right.

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Speaker 1: So you know, all citizens are entitled to the protections

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Speaker 1: of the U. S. Constitution. That's kind of the floor,

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Speaker 1: that's the baseline, But states are also free in their

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Speaker 1: own constitutions to give their own citizens or protections, and

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Speaker 1: New York State is a state that does, in fact

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Speaker 1: to give its citizens more protection than the Federal Constitution

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Speaker 1: does in a whole bunch of areas. But one of

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Speaker 1: those areas is in the double jeopardy context. So in

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Speaker 1: New York State, it's not the case that if you

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Speaker 1: are charged in a federal case and you get to

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Speaker 1: the jeopardy point, which is either a conviction or um

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Speaker 1: swearing in the jury at a trial, that you can

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Speaker 1: charged with that same crime in the state. In fact,

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Speaker 1: you can't be, except in certain limited circumstances. So in

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Speaker 1: New York State, if you've been charged and convicted by

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Speaker 1: the SAIDs for specific conduct, you cannot be charged by

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Speaker 1: the state unless an exception applies. If you could describe

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Speaker 1: the charges that Vance brought and how he thought that

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Speaker 1: they were different from the federal charges, Yeah, that's a

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Speaker 1: really good question, because when all of this was happening

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Speaker 1: and he started to hear reporting that Syvance was going

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Speaker 1: to bring charges, legal observers were talking about, what are

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Speaker 1: those charges gonna look like? Clearly he must have something

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Speaker 1: different to charge, right, you know, it's generally speaking mortgage fraud,

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Speaker 1: bank fraud types of charges, but a lot of us

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Speaker 1: thought that you know, maybe there were specific you know,

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Speaker 1: reporting requirements in this date, that maybe he filled out

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Speaker 1: some false forms that are only chargeable in the state.

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Speaker 1: You know, there are lots of those sources of state

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Speaker 1: crimes books and records, types of crimes that don't have

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Speaker 1: a federal corollary. So a lot of it thought there

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Speaker 1: would be something like that. But when the charges came out,

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Speaker 1: they really weren't factually distinct from the federal charges, and

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Speaker 1: so it was a little bit puzzling, and you know,

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Speaker 1: a lot of folks thought that, in fact, what ended

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Speaker 1: up happening would happen, which is that those charges would

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Speaker 1: be deemed too factually close to and distinct from the

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Speaker 1: federal charges, resulting in their rejection under the double jeparty law.

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Speaker 1: So when Vance brought those charges, as you mentioned, it

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Speaker 1: was fairly clear that he was doing it because of

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Speaker 1: the concern that Trump would pardon Manafort, which he did.

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Speaker 1: But is there anything wrong with Vance's motivation there in

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Speaker 1: bringing the charges. I don't think so. I mean, you know,

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Speaker 1: the point is that if something is chargeable in the state,

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Speaker 1: which bank fraud and mortgage trod are chargeable in New

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Speaker 1: York State, if you have jurisdiction and venue over those senses.

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Speaker 1: The people of the state have an interest in seeing

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Speaker 1: that those charges are brought and that you, if with

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Speaker 1: you that crime in our state, are punished for that.

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Speaker 1: So it's not that it's it's there's something wrong with

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Speaker 1: him trying to vindicate the interests of the citizens of

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Speaker 1: New York State. And you know, in fact, this notion

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Speaker 1: of being charged by the said but then getting out

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Speaker 1: of it via a pardon was seemed so problematic that

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Speaker 1: the New York State legislature changed the law, saying that

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Speaker 1: that now is an exception, like if you are charged

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Speaker 1: but then pardoned federally, you now can be charged for

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Speaker 1: that thing conduct by the state. But that change was

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Speaker 1: made too late to impact Manafort's case because the law

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Speaker 1: is not retroact of really applicable. So I don't think

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Speaker 1: there's anything wrong. It's kind of an ethical matter with

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Speaker 1: bringing the charges. The problem is they just didn't have

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Speaker 1: enough of a distinct factual basis to get through the

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Speaker 1: double jeopardy law as it existed then for Manafort without

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Speaker 1: the pardon exception. Jennifer in its order last week, the

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Speaker 1: Court of Appeals, without explanation, just said it wouldn't hear

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Speaker 1: Vance's appeal of the lower court decisions. Is there anything

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Speaker 1: that the lower court judge or the appellate division said

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Speaker 1: that struck you, not really, I mean, they just rejected

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Speaker 1: the notion that this was different enough. And you know,

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Speaker 1: I think the reaction of a lot of legal commentators

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Speaker 1: was frustration, you know, the Advance brought a case that

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Speaker 1: just wasn't strong enough. I mean, you know, not that

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Speaker 1: people thought that he shouldn't be chargeable in the state,

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Speaker 1: given that he's now gotten off scot free on the

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Speaker 1: federal side, but that there, you know, you really do

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Speaker 1: have to comply with the law and bring something factually

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Speaker 1: distinct enough, and unfortunately they didn't have that case. And

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Speaker 1: if you don't have the case, you shouldn't bring the case. So,

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Speaker 1: you know, I didn't see a lot of complaints about

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Speaker 1: what the judges did here, more just frustration that Vance

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Speaker 1: thought something that at the end of the day wasn't

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Speaker 1: going to succeed because they just didn't have enough of

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Speaker 1: a distinct factual pattern here. And the fact that the

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Speaker 1: state's highest court didn't take the case. But what does

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Speaker 1: it say that the court just turn this down and

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Speaker 1: didn't allow an argument to be made. Well, the New

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Speaker 1: York Court of Appeals, which is our supreme court, they

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Speaker 1: don't have to take every case. You know, there are

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Speaker 1: some cases that they do have to consider, but a

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Speaker 1: lot of their jurisdiction is you know, they can take

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Speaker 1: it if they want to take it, and cases that

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Speaker 1: they want to take ten tend to be things that

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Speaker 1: they think are wrongly decided right that they're gonna overturn,

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Speaker 1: or that involved a kind of an area of the

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Speaker 1: law that requires clarification, that sort of thing. So if

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Speaker 1: they see a case where they look at the decision

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Speaker 1: below and they say, well, this decision was correct on

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Speaker 1: the law and it's not really a close call because

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Speaker 1: the double deeputy law is pretty clear about you know,

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Speaker 1: having to have a distinct factual basis, then we're not

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Speaker 1: going to take it. I mean, why take it only

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Speaker 1: to say, yeah, we agree this is right. You know,

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Speaker 1: it's not a novel area of the law. And um,

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Speaker 1: you know, so it says to me they didn't consider

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Speaker 1: it to be a close case on the merits and

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Speaker 1: they didn't see anything else interesting or requiring explanation about

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Speaker 1: the case. Um, so you know, they agreed with the

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Speaker 1: courts below, So it's there. So is mat A fort

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Speaker 1: Scott free because I was reading that the language that

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Speaker 1: was used in the parts that Trump gave may not

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Speaker 1: cover everything. Yeah, so that's that's an interesting issues. So

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Speaker 1: Andrew Weissman, who is UM one of the Mueller team lawyers,

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Speaker 1: one of the prosecutors who who um was on Muller

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Speaker 1: team and charged and and tries these matters, wrote that

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Speaker 1: the pardon that Manafort received is very specific. It only

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Speaker 1: applies to the crimes with which he was charged and convicted,

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Speaker 1: and so that potentially leaves additional conducts that's chargeable by

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Speaker 1: the federal authorities, because you know, you don't always charge

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Speaker 1: someone with everything that you know they did, and certainly

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Speaker 1: they're not always convicted of everything that you know they did. Right,

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Speaker 1: So Andrew says that there's some conduct out there that

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Speaker 1: could be charged by the o J again. Now, even

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Speaker 1: if that's true, it's really hard to imagine that the

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Speaker 1: Biden Justice Department is going to charge Paul Manafort again

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Speaker 1: for some of this leftover conduct. Um. But Andrew Wisen's

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Speaker 1: you is that technically it's possible. So you know, I

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Speaker 1: guess we'll have to wait and see when Garland gets

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Speaker 1: into his position, and they start to consider not just Manafort,

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Speaker 1: but all of these other Trump world people, um, who

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Speaker 1: have outstanding criminal conduct, you know, whether they're going to

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Speaker 1: pursue that or not. I remember Weissman also saying that

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Speaker 1: they also levied some civil penalties, high civil penalties that

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Speaker 1: he would have to pay, so at least there would

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Speaker 1: be some measure of justice and some punishment from Manifort

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Speaker 1: because everyone anticipated that Trump would pardon Maniford and everyone

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Speaker 1: else associated with the Muller investigation. Yeah, and I don't

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Speaker 1: think it was a surprise to anyone that raptive partners

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Speaker 1: have ended up partnering literally every single figure charged in

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Speaker 1: the Muller investigation except for Rick Dates, who was the

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Speaker 1: one person who truly did cooperate, signed a cooperation agreement,

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Speaker 1: testified at trial, and you know, didn't just kind of

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Speaker 1: fake cooperate the way that that Manafort did for a

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Speaker 1: short time. So, um, you know, I think it's part

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Speaker 1: for prosecutors always to think two steps ahead and to

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Speaker 1: try to cro charges in such a way and to

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Speaker 1: add civil penalties in a way that insulates them from

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Speaker 1: what was really an inappropriate pardon by the president shortly

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Speaker 1: before he reached office. Trump also in a last minute

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Speaker 1: pardon and really a last minute pardon, he pardoned Steve Bannon,

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Speaker 1: and Vance is reportedly exploring a case against Bannon. Will

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Speaker 1: that pardon have any effect on Bannon being tried by

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Speaker 1: New York So it's really interesting. So Jeoffardy has not

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Speaker 1: yet attached for Steve Bannon because it doesn't attach until

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Speaker 1: either guilty plea or the jury is born as a trial,

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Speaker 1: so there is nothing to stop New York state authorities

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Speaker 1: from charging him. But the wrinkle is that former President

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Speaker 1: Trump pardon Steve Bannon only and not any of his

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Speaker 1: free co defendants. So in the criminal case, the federal

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Speaker 1: criminal case again his co defendants, continues and is set

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Speaker 1: for trial. You know, I don't know when it's set

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Speaker 1: for trial, but it is coming up at some point,

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Speaker 1: and so that complicates things a little bit because typically

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Speaker 1: prosecutors don't want to have the same evidence and the

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Speaker 1: same witnesses being used at the same time in a

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Speaker 1: proceeding in federal court. And then also you'll have an

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Speaker 1: investigation and ultimately charges in state court, so they're going

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Speaker 1: to have to sort out amongst themselves. You know, this

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Speaker 1: kind of evidence sharing, and which investigation is gonna go first,

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Speaker 1: and whether he can be charged before the federal trial

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Speaker 1: happens and so on. Um. But I do expect that,

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Speaker 1: given the nature of the conduct and the nature of

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Speaker 1: the proof, which seems very strong, the Steed Bannon will eventually,

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Speaker 1: perhaps after the federal trial is over, be charged in

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Speaker 1: the state with the conduct that he was pardoned for.

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Speaker 1: What's his connection to the state. Does he live here?

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Speaker 1: I don't know where the bans, but one of I

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Speaker 1: believe one of the descendants was based in West Festa

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Speaker 1: uh if I'm not mistaken. And in any sort of

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Speaker 1: cyber scheme where you have victims that you're reaching out

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Speaker 1: to on the Internet and asking them to contribute money

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Speaker 1: and they're giving you money, there's almost certain to be

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Speaker 1: jurisdiction just about everywhere, to be honest with you, because

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Speaker 1: undoubtedly some of the victims of the scheme would have

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Speaker 1: been in New York State and would have given money,

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Speaker 1: and the descendants would have reached out to residents of

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Speaker 1: New York State as part of their scheme itself to

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Speaker 1: gather the money. So I'm not exactly sure more of

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Speaker 1: connections between the descendants of the state, but certainly, given

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Speaker 1: you know the outlets of cyber communications and where the

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Speaker 1: victims are likely to be based, there will be jurisdiction

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Speaker 1: in New York States. Thanks Jennifer. That's Jennifer Rogers, who

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Speaker 1: teaches at Columbia Law School. It was day to a

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Speaker 1: former President Donald Trump's impeachment trial. House Impeachment Manager Jamie

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Speaker 1: Raskin of Maryland started the proceedings. Raskin said new evidence

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Speaker 1: would be presented that would prove that Trump insided his

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Speaker 1: mob of supporters to storm the capital and derail the

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Speaker 1: proceedings to certify the electoral College result. The evidence will

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Speaker 1: be for you to see and hear and digest. The

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Speaker 1: evidence will show you that ex President Trump was no

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Speaker 1: innocent bystander joining me as former federal prosecutor Michael Zelden, Michael,

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Speaker 1: what do you see as the broad strategy of the

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Speaker 1: House managers here? The broad strategy of the House managers

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Speaker 1: seemed to be to lay the foundation for their brick

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Speaker 1: by brick building of a case starting essentially before the

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Speaker 1: election even took place, where Trump is saying we can

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Speaker 1: only lose by fraud, moving into the post election period

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Speaker 1: where he would lose, and then he said, you see,

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Speaker 1: it's fraud, just as I told you. Then his efforts

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Speaker 1: to undermine and change the results of those elections in

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Speaker 1: various states, finally and culminating in January six, and the

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Speaker 1: protests and the violence, and the key language that they

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Speaker 1: say over and over is what happened on January six

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Speaker 1: was predictable and foreseeable, the result of a month long

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Speaker 1: campaign to achieve what they achieved, which was an effort

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Speaker 1: to stop the certification of the vote on January six.

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Speaker 1: So is that the most difficult part of their case,

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Speaker 1: actually linking Trump to the attack on the Capitol. Well,

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Speaker 1: it's difficult only in the sense that there will be

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Speaker 1: a false First Amendment defense that will be laid out,

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Speaker 1: which says essentially what he said on January six is

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Speaker 1: protected First Amendment speech. What Jamie Raski started today with

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Speaker 1: by saying that just doesn't apply. It is not what

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Speaker 1: he's on trial for. But I think because it is

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Speaker 1: the culminating act, they need to establish this foundation to

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Speaker 1: show that that was really not what he is on

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Speaker 1: trial for alone, but rather that is part of a

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Speaker 1: larger mosaic of activity that he engaged in which he

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Speaker 1: knew what would be the result of and in fact

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Speaker 1: it was the result of Well at this point, we

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Speaker 1: don't know if they're going to have witnesses, but what

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Speaker 1: they're doing is there methodically playing video and they're putting

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Speaker 1: up stills of tweets. How effective are the tweets of

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Speaker 1: rioters in showing that they were following Trump? Well, I

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Speaker 1: think that it again goes to the foreseeability of what

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Speaker 1: they are trying to prove, which is to say, these

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Speaker 1: people knew that they were only there because Trump told

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Speaker 1: him to be there, and Trump was able to predict

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Speaker 1: and foresee that they would show up because he has

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Speaker 1: been for months encouraging them to show up. And so

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Speaker 1: I think that it's sort of dove tails with the

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Speaker 1: presentation that one Trump is responsible to this, and two

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Speaker 1: you can take that as true from the words of

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Speaker 1: the people who actually went there because he told them

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Speaker 1: to go there. I had not heard this before, but

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Speaker 1: they said today that he spent some fifty million dollars

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Speaker 1: on ads running right up to January five. That seems

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Speaker 1: like it's a powerful piece of evidence exactly, And I

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Speaker 1: think that there will be an investigation where there should

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Speaker 1: be an investigation of this money trail. Remember My background

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Speaker 1: as a prosecutor was as money laundering prosecutor, and when

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Speaker 1: I heard the accusation that there was fifty million dollars

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Speaker 1: spent in the run up to the January six events

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Speaker 1: and to get people to the January six events, I

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Speaker 1: want to see who raised that money, how is it raised,

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Speaker 1: who spent it, why were they there? Because I think

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Speaker 1: that that is also powerful evidence of a premeditated plan

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Speaker 1: orchestrated by Trump and a group of people working with

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Speaker 1: Trump to create this January six riot. I think it's

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Speaker 1: very important evidend. We'll see whether they have it yet,

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Speaker 1: but if we don't, I think ultimately we will see that.

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Speaker 1: Who do you think would investigate that, because it doesn't

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Speaker 1: seem as if Biden's Justice Department is interested in pursuing

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Speaker 1: Trump and relitigating it. Well, the Federal Election Commission one

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Speaker 1: has a duty to obtain information with respect to anything

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Speaker 1: that's campaign related, and so there may be campaign finance

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Speaker 1: reasons for the Federal Election Commission to look into it.

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Speaker 1: There may be violations of state laws around elections that

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Speaker 1: state prosecutors will look into, and I'm not so sure.

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Speaker 1: After the dust settles and Merrick Garland is in his

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Speaker 1: position that prosecutors are not going to be allowed to

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Speaker 1: investigate crimes that occurred in their jurisdiction. So I wouldn't

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Speaker 1: say for sure that the Biden administration is not going

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Speaker 1: to free prosecutors to look at possible criminal activity in

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Speaker 1: their jurisdictions as time passes. So what do you think

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Speaker 1: is the hardest part of the House Manager's case. Well,

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Speaker 1: the hardest thing they have to do is convinced the

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Speaker 1: Republican senators to listen, because there has been reports many

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Speaker 1: of the senators are not even paying attention. Yesterday they

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Speaker 1: said Marco Rubio and Josh Howley and others are doing

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Speaker 1: other things. So part of it is to obtain their attention.

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Speaker 1: But I think the hardest thing for them to prove

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Speaker 1: is what they are trying to prove, which is this

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Speaker 1: is not a one off, one hour speech by Trump,

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Speaker 1: but rather this is a fully orchestrated, months long effort

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Speaker 1: that January six was the foreseeable and predictable outcome of

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Speaker 1: and therefore he's responsible because if it's just one day,

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Speaker 1: one speech, then I think it gives his attorneys an opportunity,

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Speaker 1: as I say, falsely argue First Amendment and lack of

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Speaker 1: foreseeability and he had no intention to incite. But the

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Speaker 1: longer the case goes, and the more they can establish

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Speaker 1: this timeline that starts before the election where he says

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Speaker 1: it's only going to be lost if there's fraud, up

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Speaker 1: until his speech on January six, where he then essentially

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Speaker 1: blows the whistle and says charge. I think they have

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Speaker 1: a strongest case by that, and that's not a simple

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Speaker 1: case to make, but that's their strongest argument. Reportedly, Senator

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Speaker 1: Lindsey Graham told Trump after the first day that it's over. Now,

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Speaker 1: the trial is over, and you're going to be acquitted.

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Speaker 1: I can't imagine how they feel, the house managers. When

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Speaker 1: you're a prosecutor, if you went into a courtroom thinking

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Speaker 1: that the jury was against you, I mean, it'd be

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Speaker 1: hard to put on the case. Well, it is, yes,

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Speaker 1: And I mean the history of civil rights litigation UM

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Speaker 1: where they were charging people with violating civil rights, workers

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Speaker 1: rights and they were losing to all the juries had

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Speaker 1: to be very distressing. But I think in this case

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Speaker 1: you have a trial that really is to the American

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Speaker 1: public and to history. So I think that these house

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Speaker 1: managers know that even if they don't obtain a conviction.

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Speaker 1: Even if they can't convince seventeen Republicans, they are broader

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Speaker 1: audiences the American people and history, so that it is

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Speaker 1: documented what Trump and his allies did and how they

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Speaker 1: brought that to life. I think that there's something that

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Speaker 1: is very compelling for a prosecutor to say, winner of lose,

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Speaker 1: I'm fighting the good fight. Actually, I think it was

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Speaker 1: quite a victory yesterday when a Louisiana Senator who hadn't

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Speaker 1: voted against the jurisdictional issue when Rand Paul brought it up,

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Speaker 1: when they got him to vote for jurisdiction, that was

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Speaker 1: a victory of sorts, no question. Whenever you can convince

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Speaker 1: somebody who has voted against you in one vote to

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Speaker 1: vote in your favor a second vote, that's that's the victory.

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Speaker 1: The thing that is interesting to me is to keep

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Speaker 1: an eye on McConnell. He's been quiet. He made comments

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Speaker 1: early on that he thought Trump was responsible for this.

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Speaker 1: He voted yesterday against moving forward, But he may have

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Speaker 1: done that reasons that don't relate to how he's going

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Speaker 1: to vote on the merit of the case. I still

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Speaker 1: think as he goes goes the outcome of this trial.

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Speaker 1: I think he's in a lynch pin that many senators

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Speaker 1: are looking for his non approval to vote. Someone said,

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Speaker 1: and I think it's probably right that were this a

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Speaker 1: secret ballot, Trump would probably lose seven eight votes to convict.

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Speaker 1: But because it's not a secret ballot, and because these

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Speaker 1: senators primarily are concerned about their political career and their

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Speaker 1: will being in non America and not its history, and

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Speaker 1: not the rule of law and all that stuff, we're

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Speaker 1: in this situation of only six voting to convict. So now,

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Speaker 1: what can the defense do to counter the House argument?

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Speaker 1: What I think that defense is going to try to

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Speaker 1: do is to say all the president did was to

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Speaker 1: make a speech, a one hour speech on January six,

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Speaker 1: which is protected by the First Amendment, and that the

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Speaker 1: actions of the mob stormed the capital were not foreseeable

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Speaker 1: by him, was not intended by him, and was just

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Speaker 1: on them by themselves, without any culpability for him. I

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Speaker 1: think the more noise that they can make that all

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Speaker 1: Trump did was what he was allowed to do under laws.

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Speaker 1: That is, he is allowed to bring lawsuits, he is

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Speaker 1: allowed to ask the senators to exercise their power to

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Speaker 1: contest the certification on January six. He is allowed as

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Speaker 1: a matter of free speech to speak to whomever he

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Speaker 1: wants to, and state legislature was about whether there was

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Speaker 1: election fraud and that his speech was not inciting, but

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Speaker 1: rather it was just rhetoric that is normal in the

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Speaker 1: political discourse. I think you'll see a lot of false equivalence.

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Speaker 1: They will say, well, Maxine Waters said this, how is

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Speaker 1: it if she said that she's not on trial, but

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Speaker 1: our guys on trial. So they going to be a

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Speaker 1: lot of effort I think to say this speech was hyperbolic,

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Speaker 1: but but First Amendment protected. I think that's what they'll

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Speaker 1: try to say. You know, it's very hard to know

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Speaker 1: what they'll do after listening to their opening arguments yesterday

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Speaker 1: because they were incoherent, loud, and incoherent, so it's pretty

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Speaker 1: hard to know what their strategy is. But if I

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Speaker 1: were representing the president in this case, I would try

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Speaker 1: to say that everything that he did was lawful. He

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Speaker 1: had a right to allege election fraud, he had a

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Speaker 1: right to contest in the courts these elections. He had

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Speaker 1: a right to make that speech, and the outcome of

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Speaker 1: that events, that series of events was unforeseeable to him

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Speaker 1: and so as terrible as it was, a lot of

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Speaker 1: people are saying, well, they have to prove you know,

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Speaker 1: he had the intent, etcetera. But this isn't a criminal trial.

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Speaker 1: Do they really have to meet some kind of burden

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Speaker 1: of Well, they have to prove their case. That is,

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Speaker 1: they have to prove what they allege in their article

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Speaker 1: of impeachment, which is that he incided in an insurrection

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Speaker 1: and he did so by a course of conduct that

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Speaker 1: took place over many months. So yes, they have a

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Speaker 1: burden of proving their case. What is the false analogy

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Speaker 1: is to a criminal trial and what I say, there's

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Speaker 1: a false First Amendment defense here. In a criminal trial,

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Speaker 1: the First Amendment defense is the First Amendment protects me

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Speaker 1: from being criminally prosecuted for words out of my mouth,

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Speaker 1: absence some imminent, clear and present danger that these words create.

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Speaker 1: In an impeachment trial, because there is no criminal penalty,

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Speaker 1: that First Amendment defense really doesn't apply. But I think

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Speaker 1: that that's what they will continue to try and do,

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Speaker 1: and I think the house managers have to continue to

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Speaker 1: say it's not about that, don't be misled. This is

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Speaker 1: about a month long brick by brick campaign that culminated

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Speaker 1: on January six, didn't start and end on January six,

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Speaker 1: So we don't know about witnesses. And I understand that

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Speaker 1: they're trying to use the video and the tweets and

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Speaker 1: instead of witness testimony. But what seems to be missing

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Speaker 1: and they refer to the reports that Trump was gleeful

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Speaker 1: hearing about this and why he waited until he stepped in,

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00:27:30,040 --> 00:27:33,119
Speaker 1: Don't they really need someone in order to make the

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00:27:33,160 --> 00:27:37,440
Speaker 1: case a full case needs someone to talk about how

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00:27:37,480 --> 00:27:44,119
Speaker 1: Trump reacted to the violence. I think how Trump reacted

436
00:27:44,119 --> 00:27:49,000
Speaker 1: to the violence and the delayed responds calling it to

437
00:27:49,119 --> 00:27:53,199
Speaker 1: an end is very important, definite. That's not clear to

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00:27:53,240 --> 00:27:56,399
Speaker 1: me though, how they get that, because it seems to

439
00:27:56,480 --> 00:27:59,879
Speaker 1: me that from what we've been hearing about in the press,

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00:28:00,119 --> 00:28:04,080
Speaker 1: only ones who know that our Trump inner circle people

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00:28:04,600 --> 00:28:08,960
Speaker 1: she goes stay as Mark Meadows, his children and others

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00:28:08,960 --> 00:28:12,960
Speaker 1: who were invited by him to watch the videotapes, Jared

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00:28:13,240 --> 00:28:15,919
Speaker 1: and Ivanka and the likes, And so I don't know

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00:28:15,960 --> 00:28:20,160
Speaker 1: exactly how you get that. I don't think they'll come voluntarily.

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00:28:20,680 --> 00:28:23,199
Speaker 1: If you were to subpoena them, then you're in this

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00:28:23,400 --> 00:28:27,760
Speaker 1: courtroom fight over executive privilege and the trial gets delayed

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00:28:27,800 --> 00:28:30,960
Speaker 1: forever and ever, but absolutely right. If there is somebody

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00:28:31,000 --> 00:28:36,000
Speaker 1: who can say I was there and I saw his reaction,

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00:28:36,359 --> 00:28:39,400
Speaker 1: or I'm one of the people who was calling and

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00:28:39,440 --> 00:28:43,880
Speaker 1: calling and calling and couldn't get his attention, I think

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00:28:43,920 --> 00:28:45,920
Speaker 1: that would be powerful elevience. And I think that that

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00:28:46,000 --> 00:28:49,480
Speaker 1: Ladder group they may get, they may get people who

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00:28:50,040 --> 00:28:54,080
Speaker 1: have told them about what their efforts were to get

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00:28:54,120 --> 00:28:56,520
Speaker 1: Trump's attention and they couldn't get it. I think we

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00:28:56,600 --> 00:28:58,760
Speaker 1: may hear that, but I don't know that we're gonna

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00:28:58,760 --> 00:29:01,720
Speaker 1: get a live witness who can testified to that. But

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00:29:01,760 --> 00:29:04,360
Speaker 1: I think you're you're spot on in your evaluation. That

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00:29:04,360 --> 00:29:10,000
Speaker 1: would be very compelling. So finally, compare this impeachment trial

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00:29:10,080 --> 00:29:12,640
Speaker 1: to the last impeachment trial. We're only a two days in,

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00:29:12,760 --> 00:29:16,840
Speaker 1: but still the first Trump's impeachment trial was a little bit,

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00:29:17,160 --> 00:29:20,040
Speaker 1: you know, esoteric in a sense that you had a

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00:29:20,200 --> 00:29:24,160
Speaker 1: phone call with a partial transcript where the words weren't

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00:29:24,640 --> 00:29:28,800
Speaker 1: very clear and you could read into them in different ways,

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00:29:29,000 --> 00:29:32,360
Speaker 1: and it was not a simple sort of blood and

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00:29:32,480 --> 00:29:36,440
Speaker 1: gut case. It's much easier to prosecute sort of street

466
00:29:36,480 --> 00:29:39,479
Speaker 1: crimes case with his blood, guts and core that stuff

467
00:29:39,640 --> 00:29:42,720
Speaker 1: than it is a financial crimes case where it's just

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00:29:42,760 --> 00:29:45,080
Speaker 1: a lot of paper. I think the first case was

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00:29:45,080 --> 00:29:47,600
Speaker 1: a lot more sort of paper ish in a sense,

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00:29:48,040 --> 00:29:51,160
Speaker 1: this opaque phone call, and this one is really a blood,

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00:29:51,160 --> 00:29:54,040
Speaker 1: sweat and tears sort of case where we see the

472
00:29:54,160 --> 00:29:58,000
Speaker 1: video of what's going on, and the key witness in

473
00:29:58,040 --> 00:30:01,520
Speaker 1: this trial so far has and Donald Trump and the

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00:30:01,560 --> 00:30:06,479
Speaker 1: words out of his mouth, both orally and in tweets.

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Speaker 1: I remember we have to say about a tweet is

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Speaker 1: that the President said early on in his administration that

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00:30:12,320 --> 00:30:18,440
Speaker 1: tweets are official presidential communications. They are not simply the

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00:30:18,480 --> 00:30:23,760
Speaker 1: midnight ramblings of a private citizen. These are official government documents.

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00:30:23,800 --> 00:30:26,040
Speaker 1: So when he says something in the tweets, it is

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00:30:26,080 --> 00:30:29,520
Speaker 1: an official statement of the president of the United States.

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Speaker 1: Thanks Michael. That's Michael Zelden and that's it for the

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Speaker 1: edition of the Bloomberg Law Show. I'm June Grosso and

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Speaker 1: you're listening to Bloomberg