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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

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Speaker 1: and on Bloomberg dot com slash podcasts. A stunning development

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Speaker 1: the case of Donald Trump's former campaign chairman Paul Manafort

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Speaker 1: a deal breaker, you can say. The Special Counsel says

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Speaker 1: that Manafort committed federal crimes by lying to the FBI

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Speaker 1: and the Special Council, and his cooperation deal is done.

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Speaker 1: Manafort's attorneys say he has been truthful, joining us as

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Speaker 1: Robert Manson, former federal prosecutor and a partner mcarter in English. Bob,

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Speaker 1: let's start with just how unusual this is. Telling the

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Speaker 1: truth essential to any cooperation deal. When you were a

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Speaker 1: federal prosecutor, did you ever have a co operating witness lie.

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Speaker 1: Do you like this? Well, it's exceedingly rare to have

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Speaker 1: the deal blow up at this point because the way

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Speaker 1: these deals are structured, it's not as if they're simply

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Speaker 1: an agreement to come in and tell the truths. They

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Speaker 1: enter the cooperating deal, and then they begin to debrief

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Speaker 1: Mr Manafort. What happened instead here is that Manafort gave

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Speaker 1: what what are called proffers to the government where he

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Speaker 1: came in and essentially told them what he would say

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Speaker 1: in advance of the deal, so the prosecutors could be

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Speaker 1: certain that what he was going to tell them was

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Speaker 1: was consistent with the truth as they knew it based

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Speaker 1: upon other evidence they have. So to have this deal

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Speaker 1: blow up at this juncture is exceedingly rare. So what

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Speaker 1: does this mean for the investigation going forward? Well, it's

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Speaker 1: it's hard to say. It means that they have concluded

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Speaker 1: that Manafort has maturely lied to them, repeatedly, to the

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Speaker 1: point that they can no longer use him as a witness. Uh.

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Speaker 1: They have now publicly stated that he's lied, They have

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Speaker 1: retracted the cooperating deal, and any kind of leniency that

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Speaker 1: he was expecting to get from the government is now

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Speaker 1: off the table. They may have already gotten valuable information

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Speaker 1: from him, They may have gotten leads from him. All

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Speaker 1: the information that he's given them they can use. What

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Speaker 1: they can't use is him as a witness to testify

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Speaker 1: at some point in the future. So Bob Manafort was

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Speaker 1: convicted of eight counts of tax evasion and bank fraud

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Speaker 1: in August. In September, he pleaded guilty to two counts

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Speaker 1: to new counts and admitted his guilt to ten counts

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Speaker 1: outstanding from the earlier trial. So where does that leave

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Speaker 1: him when Mueller says there's no deal here, Well, it

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Speaker 1: leaves him in a very disadvantageous position. UH. Lawyers who

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Speaker 1: represent cooperative witnesses hate to see this kind of outcome here,

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Speaker 1: because what you do when you enter this deal is

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Speaker 1: you give up everything. The prosecutors keep everything. So he's

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Speaker 1: entered his guilty plead those cannot be retracted. All the

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Speaker 1: deal components, which as the government agreeing not to prosecute

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Speaker 1: him for certain other charges, are now off the table.

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Speaker 1: But yet everything he's played guilty too is still on

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Speaker 1: the table. So he is in the same situation he

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Speaker 1: was before he entered this deal, except that it's even

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Speaker 1: worse because he will not get any leniency from the government,

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Speaker 1: no downward departure, and prosecutors can go back and prosecute

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Speaker 1: him for the accounts of conviction UH that were never

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Speaker 1: unanimously agreed upon in the Virginia case, and making charging

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Speaker 1: with other crimes in connection with the District of Columbia case.

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Speaker 1: So he could likely spend and will likely spend the

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Speaker 1: rest of his life in jail as a result of

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Speaker 1: this plea deal going going south, and we know that

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Speaker 1: Mueller plays hardball. You can ask George Papadopoulos, who went

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Speaker 1: to prison the other day. But so that leaves the question.

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Speaker 1: We know that there was a report that a former

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Speaker 1: lawyer for Trump had broached the prospect of a pardon

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Speaker 1: with one of Manafort's lawyers last year. So is Manafort counting,

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Speaker 1: perhaps on a pardon. Well, that's really his only way out.

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Speaker 1: It's hard to say whether he's counting on that or not.

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Speaker 1: But it didn't make a lot of sense for him

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Speaker 1: to go down the road he went down and then

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Speaker 1: at this point try to get a pardon from the president.

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Speaker 1: But short of any pardon, he is almost certainly going

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Speaker 1: to spend the rest of his life in jail because

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Speaker 1: he's going to get no leniency from the government, and

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Speaker 1: the government may well charge him with additional crimes. People

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Speaker 1: are saying that this is a setback to Mueller's investigation,

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Speaker 1: but if he it seems like he already knew the

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Speaker 1: answers if he says that Manafort is lying, So do

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Speaker 1: we know really how much of a setback this is. Also,

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Speaker 1: Manafort might not make such a credible witness in any case. Well,

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Speaker 1: that's right, June, and people are speculating a lot about

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Speaker 1: what Mueller's team knows and what they don't know. And

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Speaker 1: the truth is that nobody but Mueller's team really knows

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Speaker 1: what information they have what they did have with enough

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Speaker 1: evidence to know when Manafort was lying to them. And generally,

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Speaker 1: when you are representing um defendants who are dealing with

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Speaker 1: the government, you have to tell them that assume the

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Speaker 1: government knows everything because they're talking with other people. They're

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Speaker 1: talking to people who you may not know. They're talking

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Speaker 1: to their looking at documents that you may not have

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Speaker 1: access to. They're looking at documents that you may never

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Speaker 1: have seen before in your life, but they have those documents.

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Speaker 1: So if you lie to them, they're likely to catch you.

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Speaker 1: And that's exactly what happened with Paul Manafort. And I

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Speaker 1: should also point out this is not a decision that

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Speaker 1: Mueller's team came to lightly. Having this deal blow up

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Speaker 1: was not something that Muller and his team wanted. He

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Speaker 1: was a critical witness, and they no doubt wanted to

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Speaker 1: keep him on the team. But at some point, if

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Speaker 1: you lie to you repeatedly, they have no choice but

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Speaker 1: to end the deal, and that's what happened here. We

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Speaker 1: may actually learn a lot from this, because as we

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Speaker 1: know in the past, we've learned a lot from indictments

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Speaker 1: that Mueller has filed against people who gives a lot

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Speaker 1: of information about what they know. And in the filing

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Speaker 1: voiding this agreement, the team Mueller's team said there would

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Speaker 1: be extensive information on manaforts lies before he sent and

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Speaker 1: so will we expect to see hints of what's to

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Speaker 1: come there. But we will get some hints because, as

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Speaker 1: the defense is going to say to the judge, Judge,

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Speaker 1: we lived up to our deal. We told the truth

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Speaker 1: as we knew it. Prosecutors didn't like what we had

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Speaker 1: to say, and therefore he should not be charged with

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Speaker 1: breaching the agreement. But the government would not have gone

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Speaker 1: down this road if they did not have hard evidence

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Speaker 1: that Manafort was lying to them. Now, we should also

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Speaker 1: point out that they don't have to show their hand

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Speaker 1: in all respects. In other words, they don't have to

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Speaker 1: show every lie that manaford told them. They just have

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Speaker 1: to show the judge that he lied on a number

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Speaker 1: of material points and that will be enough to blow

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Speaker 1: up the deal. So I think Muller's team will show

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Speaker 1: their hand to some extent because they have to. They

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Speaker 1: have to prove to the judge that Manafort lied to them,

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Speaker 1: But they don't have to show the judge had he

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Speaker 1: lied to them in every single respect, And no doubt

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Speaker 1: they're going to keep a lot of that information out

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Speaker 1: of the public eye and will only find out about

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Speaker 1: that later down the road when Mueller ultimately delivers his

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Speaker 1: final report. All right, So then it's up to the judge.

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Speaker 1: We just said yes or no here, it's up to

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Speaker 1: the judge finally to decide whether the deal is done.

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Speaker 1: It's ultimately up to the judge to make that decision.

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Speaker 1: But it's unlikely that the judge is not going to

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Speaker 1: side with the government here. Because the judge is not

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Speaker 1: going to get into a mini trial determining the credibility

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Speaker 1: of Paul Manafort. The government will be able to show

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Speaker 1: hard facts that he lied. This is what I expect.

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Speaker 1: Thanks Bob, As always, that's repert mens A partner McCarter

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Speaker 1: in English. No comment on the methane. But thank you, Greg.

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Speaker 1: We're a live from the Bloomberg Interactive Broker Studio. President

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Speaker 1: Trump has not only been trying to shape the federal judiciary.

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Speaker 1: He's also been waging a war of words on the judiciary,

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Speaker 1: with his criticism of a judge who was Mexican in May,

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Speaker 1: oft to his criticism of the Ninth Circuit last week,

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Speaker 1: calling a judge in the District Court and Obama judge,

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Speaker 1: something Chief Justice John Roberts pushed back on in a

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Speaker 1: rare reaction, is Trump testing the boundaries of his power

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Speaker 1: and the separation of powers? Joining me is Harold Crent,

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Speaker 1: dean of the Chicago Kent College of Law and author

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Speaker 1: of the book Residential Powers. Harold, Presidents before Trump have

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Speaker 1: complained about the courts and tried to test the boundaries.

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Speaker 1: Is he any different? Of course he's different. I mean

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Speaker 1: he has challenged the legitimacy of the District Court judges

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Speaker 1: that you mentioned, judges before him, and so he's having

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Speaker 1: a war on But he thinks are judges who are

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Speaker 1: against him. What he must realize, though, is that in

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Speaker 1: some of the more recent rulings, it's the Trump judges,

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Speaker 1: so to speak, who have gone against him in the

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Speaker 1: sienn An acoustic case and in a bunch of others.

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Speaker 1: So it's really it's going to be his fight against

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Speaker 1: the judiciary, not merely against judges who were appointed by Democrats. Now,

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Speaker 1: of course, Obama famously had to stare down with the

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Speaker 1: judges about Citizens United FDR famously tried to pack the

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Speaker 1: court because he believed that the New Deal was imperiled.

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Speaker 1: So this isn't entirely new, But it's the dismissiveness that

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Speaker 1: he manifests about the rule of law and judging that

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Speaker 1: is somewhat startling. The normally restrained Roberts pushed back with

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Speaker 1: the defense of the independence of the judiciary and something

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Speaker 1: he also stressed in a speech at the University of

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Speaker 1: Minnesota after the contentious confirmation battle of Brett Kavanaugh. What

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Speaker 1: is at stake for him in the Court? Chief Justice

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Speaker 1: Roberts has has indicated a strong attachment to the independence

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Speaker 1: of the Court um as an critical institution in our republic,

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Speaker 1: and he is with resisting any kind of notion that

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Speaker 1: conservative judges should vote as a block or that conservati

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Speaker 1: judges should follow the lead of the Trump administration. So,

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Speaker 1: for another example, he was the only amongst of the

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Speaker 1: five conservative judges who refused to go to the Federalist

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Speaker 1: Um convention recently where they were celebrating Justice Kavanaugh and others.

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Speaker 1: And I think he did that specifically to make a point.

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Speaker 1: The point is that, as he put it differently in

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Speaker 1: the quote that you had, is that that judges are

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Speaker 1: trying to He would say, called balls and strikes um.

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Speaker 1: Others would say, make policy. But no matter what you

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Speaker 1: how you term it, they're trying to be independent as

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Speaker 1: the best they can to understand how to apply the law,

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Speaker 1: not to try to follow a particular political ideology. Last Friday,

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Speaker 1: the Trump administration asked the Supreme Court to fast track

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Speaker 1: a ruling on the policy of restricting military service by

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Speaker 1: transgender people. That's the fourth time recently that the administration

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Speaker 1: has tried to bypass the circuit court level, goes straight

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Speaker 1: to the Supreme Court. What is that departure from the

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Speaker 1: normal cost, normal course of appellate procedure. Tell you there's

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Speaker 1: only been a handful of cases that the Supreme Court

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Speaker 1: has taken before the court percolate, before the case percolates

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Speaker 1: in front of the courts of appeals, and the Justice

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Speaker 1: Department strangely, in my mind, is signaling dissatisfaction with the

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Speaker 1: Ninth Circuit in particular. I'm trying to say that it

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Speaker 1: doesn't trust those courts, and the only court is going

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Speaker 1: to trust is Supreme Court. And obviously there is an

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Speaker 1: element of truth in that view, but there's a risk there,

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Speaker 1: and the risk is that because of what the Justice

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Speaker 1: Parliament is doing, even the Supreme Court or Chief Justice Roberts,

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Speaker 1: as we discussed, may slap them on the wrist by

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Speaker 1: saying no, no, let's follow proper procedure, let's what your time.

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Speaker 1: The Supreme Court did take part of one of those

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Speaker 1: cases involving the census um before the issue went to

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Speaker 1: the Court of Appeals. But the census case is really

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Speaker 1: about a small um part of it about what extent

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Speaker 1: you can probe the thought processes of the Secretary of Commerce,

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Speaker 1: and it did not relate to the question about the

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Speaker 1: census at all, and that trial will continue. So overall,

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Speaker 1: even though they've asked four times so far, they've only

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Speaker 1: received permission to go to the High Court on a

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Speaker 1: part of one of them. And I think Chief Justice

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Speaker 1: Roberts at least and others will be very reluctant to

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Speaker 1: allow the Tump administration to come whenever at once and

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Speaker 1: go immediately into the Supreme Court and not follow the

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Speaker 1: proper procedural path. Also last for outing, a judge ruled

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Speaker 1: that a lawsuit by the New York State a g

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Speaker 1: against Trump and the Trump Foundation could go forward. The

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Speaker 1: Trump lawyers had argued that the court didn't have jurisdiction

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Speaker 1: over him, and the judge said she did have jurisdiction

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Speaker 1: over him. Tell us about the jurisdictional issue and what

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Speaker 1: the court found. So the question is whether a president

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Speaker 1: can be named in a civil lawsuit in the state

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Speaker 1: court or whether the presidential communities, such as they are,

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Speaker 1: would preclude that suit from going forward during the pendency

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Speaker 1: of the presidency. Most people don't remember, but President John F.

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Speaker 1: Kennedy was sued when he was in office for a

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Speaker 1: car crash that took place during the election cycle. It

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Speaker 1: was a little bit of a staged um lawsuit, but

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Speaker 1: nonetheless he was he had to defend it. He did

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Speaker 1: and he settled the case out of court. And of

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Speaker 1: course President Clinton had to defend the lawsuit by PAULA

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Speaker 1: Jones when he was in a president So the president

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Speaker 1: does suggest that the president is not immune from a

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Speaker 1: civil suit. Uh, there is distraction, and I think that

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Speaker 1: the courts would stop at the line of subpoenaing the

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Speaker 1: president to give testimony. But nonetheless the lawsuit can go forward,

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Speaker 1: and the New York Attorney generalist lawsuit against the Trump

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Speaker 1: Foundation will go forward. Whatever it's merest. Maybe just to

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Speaker 1: be clear, we have a bit a minute here. President

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Speaker 1: Clinton agreed to a deposition, as we well know. But

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Speaker 1: you're saying that you don't think that the courts would

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Speaker 1: enforce a subpoena for a deposition of Trump. Um. Uh,

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Speaker 1: it's possible. I think that's the line that we don't

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Speaker 1: have a clear ruling on, um, and so I that

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Speaker 1: remains to be seen. I would be somewhat surprised at

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Speaker 1: the court went that far to order the sitting president

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Speaker 1: to have a deposition in a civil lawsuit that really

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Speaker 1: is not germane to any kind of national security issue. Um.

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Speaker 1: But I may be wrong and that we may be

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Speaker 1: heading for that. All right, Thank you so much for

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Speaker 1: your insights, Harold. That's Harold Crantis, Dean of the Chicago

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Speaker 1: Kent College of Law. Thanks for listening to the Bloomberg

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Speaker 1: Law Podcast. You can subscribe and listen to the show

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Speaker 1: on Apple Podcasts, SoundCloud, and on bloomberg dot com slash podcast.

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Speaker 1: I'm June Brasso. This is Bloomberg Ye