1 00:00:00,080 --> 00:00:03,480 Speaker 1: Yeah, a court order is forcing some of Donald Trump's 2 00:00:03,520 --> 00:00:06,960 Speaker 1: former top tax lawyers to give thousands of documents to 3 00:00:07,080 --> 00:00:11,240 Speaker 1: investigators showing the risk attorney's face when their own actions 4 00:00:11,280 --> 00:00:14,440 Speaker 1: go under a microscope. Joining me is Christopher for a 5 00:00:14,480 --> 00:00:17,960 Speaker 1: Bloomberg Law team leader for the business of law. So 6 00:00:18,040 --> 00:00:20,759 Speaker 1: Chris tell us about these documents that the lawyers have 7 00:00:20,840 --> 00:00:25,200 Speaker 1: to turn over. So a judge ordered these attorneys that 8 00:00:25,360 --> 00:00:28,760 Speaker 1: Morgan Lewis, who have been representing and advising President Trump 9 00:00:28,760 --> 00:00:31,720 Speaker 1: and his companies on various tax matters, to turn over 10 00:00:32,840 --> 00:00:35,839 Speaker 1: a couple of thousand dot com pages of documents at 11 00:00:35,920 --> 00:00:39,360 Speaker 1: least regarding some of that advice in some of the 12 00:00:39,479 --> 00:00:43,680 Speaker 1: specific tax transactions that Trump was involved in. And it's 13 00:00:44,000 --> 00:00:46,320 Speaker 1: they're being turned over to the New York Attorney General 14 00:00:46,360 --> 00:00:49,520 Speaker 1: that Tisha James as part of a probe um into 15 00:00:49,560 --> 00:00:53,280 Speaker 1: some accusations of tax cheating by Trump and the Trump organization. 16 00:00:54,240 --> 00:00:57,760 Speaker 1: Did the law firm try to fight the request, try 17 00:00:57,800 --> 00:01:00,600 Speaker 1: to claim attorney client privilege? And how did that go? 18 00:01:01,000 --> 00:01:04,000 Speaker 1: Apparently not so well they did, and it didn't go 19 00:01:04,120 --> 00:01:08,160 Speaker 1: well for them. The firm made two arguments that it 20 00:01:08,319 --> 00:01:11,479 Speaker 1: was these documents were covered and protected by attorney client 21 00:01:11,560 --> 00:01:14,800 Speaker 1: privilege between the firm and the company, and also that 22 00:01:14,840 --> 00:01:17,800 Speaker 1: they were attorney work product, which doesn't have to be 23 00:01:17,840 --> 00:01:21,399 Speaker 1: turned over under the rules for this kind of thing. 24 00:01:21,720 --> 00:01:25,480 Speaker 1: The judge rejected that argument and said that UM a 25 00:01:25,520 --> 00:01:28,280 Speaker 1: lot of these documents had to do with UM sort 26 00:01:28,319 --> 00:01:32,280 Speaker 1: of talking about statements to the media UM communications of 27 00:01:32,319 --> 00:01:36,120 Speaker 1: a non legal advice matter. Whether that's because the actual 28 00:01:36,200 --> 00:01:39,720 Speaker 1: subject of the communication was not a legal question, or 29 00:01:39,800 --> 00:01:44,440 Speaker 1: because non lawyers and folks who were not UM clients 30 00:01:44,840 --> 00:01:48,080 Speaker 1: were also involved in some of those communications. We have 31 00:01:48,200 --> 00:01:51,720 Speaker 1: not seen the actual documents ourselves, those have been under 32 00:01:52,240 --> 00:01:55,240 Speaker 1: UH feel by the court UM. But what we do 33 00:01:55,320 --> 00:01:59,200 Speaker 1: know is that they the investigators are looking in particular 34 00:01:59,360 --> 00:02:03,680 Speaker 1: at two acts deals that these lawyers advised Trump on. 35 00:02:03,680 --> 00:02:06,240 Speaker 1: One of them has to do with the property in Westchester, 36 00:02:06,320 --> 00:02:08,600 Speaker 1: New York, UH and the other one is out in 37 00:02:08,840 --> 00:02:12,000 Speaker 1: l a UM. And what they're looking at here is 38 00:02:12,040 --> 00:02:15,960 Speaker 1: that there were certain property and easement on certain property 39 00:02:16,000 --> 00:02:20,680 Speaker 1: owned by Trump was donated UH for charitable causes as 40 00:02:20,680 --> 00:02:23,920 Speaker 1: a conservation easement. And what they're looking at there is 41 00:02:23,960 --> 00:02:28,440 Speaker 1: how much of a tax UH break the company took 42 00:02:28,440 --> 00:02:31,880 Speaker 1: in return for donating those easements, and the tax break 43 00:02:32,000 --> 00:02:35,240 Speaker 1: is based on how those the properties were valued. And 44 00:02:35,280 --> 00:02:38,680 Speaker 1: there are some allegations there that the Trump organization has 45 00:02:38,720 --> 00:02:42,079 Speaker 1: been inflating the value not only of these two easements, 46 00:02:42,080 --> 00:02:44,720 Speaker 1: but of a wide range of property for several years 47 00:02:44,760 --> 00:02:48,519 Speaker 1: now in order to get tax breaks UM and favorable loans. 48 00:02:49,480 --> 00:02:54,720 Speaker 1: How much is done by accountants and how much by lawyers, 49 00:02:54,800 --> 00:02:56,640 Speaker 1: you know, there's a lot of money involved here and 50 00:02:56,680 --> 00:03:00,000 Speaker 1: a lot of different things in play, so I think 51 00:03:00,040 --> 00:03:02,480 Speaker 1: can vary based on the situation, but it was safe 52 00:03:02,520 --> 00:03:06,239 Speaker 1: to assume that an organization the size of the Trump 53 00:03:06,440 --> 00:03:10,519 Speaker 1: organization would not only have tax lawyers working on these things, 54 00:03:10,560 --> 00:03:14,920 Speaker 1: but professional accountants as well, and so it would be 55 00:03:14,960 --> 00:03:19,520 Speaker 1: done under the advice of both the lawyers and the accountants. UM. 56 00:03:19,680 --> 00:03:21,960 Speaker 1: My understanding and what I was told from some of 57 00:03:22,000 --> 00:03:24,680 Speaker 1: the experts here is that the accountant would certainly be 58 00:03:25,200 --> 00:03:28,960 Speaker 1: the first line there and the person who's who's calculating 59 00:03:29,000 --> 00:03:31,920 Speaker 1: what the value of this property is UM, But the 60 00:03:31,960 --> 00:03:36,440 Speaker 1: tax lawyers would ultimately be reviewing that and making calls 61 00:03:36,480 --> 00:03:39,520 Speaker 1: in terms of how whether that's um you know, they're 62 00:03:39,520 --> 00:03:42,440 Speaker 1: pushing the envelope too much in terms of the value 63 00:03:42,880 --> 00:03:46,800 Speaker 1: or running into potential legal questions. Otherwise, the lawyers who 64 00:03:46,800 --> 00:03:49,600 Speaker 1: have represented him. The tax lawyers have represented him for 65 00:03:49,640 --> 00:03:53,760 Speaker 1: a while. Right, that's right. The firm is Morgan Lewis, 66 00:03:53,840 --> 00:03:57,640 Speaker 1: and it's a pair of attorneys, most notably a woman 67 00:03:57,720 --> 00:04:02,000 Speaker 1: named Sherry Dillon, who some oakes may remember appeared at 68 00:04:02,400 --> 00:04:07,200 Speaker 1: with then President elect Trump in two UM at a 69 00:04:07,280 --> 00:04:12,040 Speaker 1: closely watched UM press conference at his hotel in Manhattan 70 00:04:12,080 --> 00:04:15,520 Speaker 1: in which President Trump pledged and rolled out a plan 71 00:04:16,240 --> 00:04:18,440 Speaker 1: under which he was going to divest from all of 72 00:04:18,520 --> 00:04:22,359 Speaker 1: his various businesses before entering the White House. And he 73 00:04:22,440 --> 00:04:25,560 Speaker 1: also showed up with a stack of boxes which he 74 00:04:25,600 --> 00:04:28,880 Speaker 1: claimed where his tax returns um which he also said 75 00:04:28,880 --> 00:04:31,280 Speaker 1: he was willing to turn over just as soon as 76 00:04:31,360 --> 00:04:35,279 Speaker 1: this ongoing UM audit was finished. And so Dylan was 77 00:04:35,320 --> 00:04:39,320 Speaker 1: standing by his side there and and even was wampooned 78 00:04:39,360 --> 00:04:42,200 Speaker 1: on on Saturday Night Live the next week when they 79 00:04:42,240 --> 00:04:45,240 Speaker 1: did their own skit on that press conference. UM. So 80 00:04:45,279 --> 00:04:47,760 Speaker 1: she's been well known as a Trump tax advisor for 81 00:04:47,880 --> 00:04:51,359 Speaker 1: several years, even dating back to before when she joined 82 00:04:51,400 --> 00:04:54,480 Speaker 1: Morgan Lewis six or seven years ago. And then the 83 00:04:54,480 --> 00:04:57,440 Speaker 1: other person at issue here is a guy named William Nelson, 84 00:04:57,440 --> 00:05:01,520 Speaker 1: who's a tax law veteran, had worked UM during the 85 00:05:01,560 --> 00:05:04,839 Speaker 1: Reagan administration and has been with the firm for several decades. 86 00:05:05,520 --> 00:05:08,240 Speaker 1: Both of these attorneys, in addition to a few others 87 00:05:08,240 --> 00:05:11,400 Speaker 1: from Morgan Lewis, has really been the primary advisors for 88 00:05:11,440 --> 00:05:13,880 Speaker 1: the Trump Organization and President Trump on a lot of 89 00:05:13,920 --> 00:05:19,200 Speaker 1: his tax matters. Can lawyers advising clients about tax matters 90 00:05:19,600 --> 00:05:24,600 Speaker 1: be themselves found responsible for a client's illegal acts or 91 00:05:24,640 --> 00:05:28,880 Speaker 1: illegal claims made? Potentially? And I think it's worth pointing 92 00:05:28,880 --> 00:05:32,880 Speaker 1: out here that there has been no public accusation that 93 00:05:33,000 --> 00:05:35,920 Speaker 1: either of these two attorneys, or that the firm otherwise 94 00:05:36,040 --> 00:05:41,000 Speaker 1: has violated ethics laws, ethics rules, criminal laws, or itself 95 00:05:41,080 --> 00:05:44,279 Speaker 1: is facing any civil liability. But it is interesting to 96 00:05:44,320 --> 00:05:47,880 Speaker 1: see that investigators are taking a closer look at these transactions, 97 00:05:47,920 --> 00:05:51,279 Speaker 1: and it specifically are looking at these lawyers roles in 98 00:05:51,320 --> 00:05:56,080 Speaker 1: those transactions. So my understanding is that there is certainly 99 00:05:56,480 --> 00:05:59,320 Speaker 1: some gray area and some wiggle room here, and that 100 00:05:59,440 --> 00:06:04,159 Speaker 1: attorney UM should be allowed to, if they're clients, full 101 00:06:04,200 --> 00:06:07,360 Speaker 1: throated advice. And if you know, it turns out down 102 00:06:07,360 --> 00:06:10,239 Speaker 1: the road that the I R S or the SEC 103 00:06:10,600 --> 00:06:14,400 Speaker 1: or a judge maybe UM disagrees with the legal conclusions 104 00:06:14,440 --> 00:06:17,680 Speaker 1: that the attorney reached. That's not necessarily going to get 105 00:06:17,680 --> 00:06:20,560 Speaker 1: the attorney in hot water unless the advice was just 106 00:06:20,640 --> 00:06:24,159 Speaker 1: so reckless or off base. But where attorneys can run 107 00:06:24,200 --> 00:06:28,320 Speaker 1: into trouble are in these situations where either they are 108 00:06:28,360 --> 00:06:31,560 Speaker 1: putting their stamp of approval knowingly on some sort of 109 00:06:31,640 --> 00:06:34,719 Speaker 1: unlawful behavior, or if they're just burying their heads in 110 00:06:34,760 --> 00:06:37,880 Speaker 1: the sands and pretending like it's not going on. And 111 00:06:37,920 --> 00:06:41,520 Speaker 1: so we've seen that in some high profile cases over 112 00:06:41,560 --> 00:06:44,840 Speaker 1: the course of the last decade or so, where attorneys 113 00:06:45,320 --> 00:06:48,680 Speaker 1: may face even criminal penalties, and in one situation where 114 00:06:48,720 --> 00:06:51,839 Speaker 1: a tax firm because of the civil penalties that they faced, 115 00:06:51,880 --> 00:06:54,080 Speaker 1: wrapped up in one of those cases that wound up 116 00:06:54,080 --> 00:06:57,480 Speaker 1: going out of business. So a lot of times a 117 00:06:57,560 --> 00:07:01,480 Speaker 1: lawyer will give advice and it pushes the envelope and 118 00:07:01,600 --> 00:07:05,520 Speaker 1: the client says, let's go for it. Is that kind 119 00:07:05,560 --> 00:07:09,280 Speaker 1: of advice testing the limits of the law. Is that 120 00:07:09,360 --> 00:07:13,080 Speaker 1: kind of advice criminal? I'm hesitant to say that it's criminal, 121 00:07:13,120 --> 00:07:16,120 Speaker 1: but it's certainly moving into that gray area where there 122 00:07:16,160 --> 00:07:18,840 Speaker 1: could be some problems. I mean, one person's view of 123 00:07:18,880 --> 00:07:22,560 Speaker 1: what's pushing the envelope and another of what criminal certainly 124 00:07:22,840 --> 00:07:26,120 Speaker 1: could be different. And some of the tax law experts 125 00:07:26,120 --> 00:07:29,760 Speaker 1: and legal ethics experts say that firms are more and 126 00:07:29,800 --> 00:07:34,040 Speaker 1: more aware of these gray areas and more and more 127 00:07:34,320 --> 00:07:39,160 Speaker 1: UM unwilling to test them, particularly the larger firms that 128 00:07:39,240 --> 00:07:42,679 Speaker 1: have a lot to risk. We're not talking about taking 129 00:07:42,720 --> 00:07:48,920 Speaker 1: advantage of tax loopholes, correct, UM. Certainly there's nothing wrong 130 00:07:48,960 --> 00:07:53,280 Speaker 1: with UM any person or business taking advantage of all 131 00:07:53,400 --> 00:07:56,720 Speaker 1: of the tax benefits and breaks that are available to 132 00:07:56,800 --> 00:08:00,880 Speaker 1: them under the law. In this particular case, what we 133 00:08:00,960 --> 00:08:04,640 Speaker 1: know about the allegations is that investigators both the state 134 00:08:04,760 --> 00:08:08,120 Speaker 1: and the city level at the Manhattan d A's office 135 00:08:08,480 --> 00:08:13,440 Speaker 1: are looking into whether the Trump organization violated UH several 136 00:08:13,520 --> 00:08:19,760 Speaker 1: laws by really inflating and overvaluing these properties. In order 137 00:08:19,800 --> 00:08:24,120 Speaker 1: to does a lawyer have to report a client if 138 00:08:24,160 --> 00:08:27,680 Speaker 1: he or she suspects the client is doing something illegal 139 00:08:27,800 --> 00:08:33,560 Speaker 1: like inflating assets. There is a that's a very very 140 00:08:33,640 --> 00:08:37,400 Speaker 1: gray area and very largely based on the situation and 141 00:08:37,440 --> 00:08:41,000 Speaker 1: the state that you're in, because you're talking about largely 142 00:08:41,120 --> 00:08:44,959 Speaker 1: state legal ethics rules UM, which vary from state to state. 143 00:08:45,880 --> 00:08:49,920 Speaker 1: But that being said, in recent cases, what you're seeing 144 00:08:50,320 --> 00:08:55,240 Speaker 1: UM is not the firm or the lawyer necessarily reporting 145 00:08:55,280 --> 00:08:58,160 Speaker 1: the client anywhere, but they do have an obligation to 146 00:08:58,280 --> 00:09:03,400 Speaker 1: step down UM and top advising or representing the clients 147 00:09:03,440 --> 00:09:08,520 Speaker 1: in particular, and attorneys looking at potential um personal liability 148 00:09:08,640 --> 00:09:11,760 Speaker 1: or ethics charges if they knowingly sign their name to 149 00:09:11,880 --> 00:09:14,240 Speaker 1: something that's filed with the I R. S ors filed 150 00:09:14,240 --> 00:09:17,520 Speaker 1: in court that they know is false or is misleading 151 00:09:17,600 --> 00:09:21,240 Speaker 1: or otherwise violating the law. So who are they bringing 152 00:09:21,320 --> 00:09:26,080 Speaker 1: the charges against them? It doesn't sound like it's criminal charges. Unclear, 153 00:09:26,679 --> 00:09:30,319 Speaker 1: I'll say for now, the both Letitia James, the A. G. 154 00:09:30,559 --> 00:09:35,360 Speaker 1: Her Office, and the Manhattan DA Civans have been um, 155 00:09:35,400 --> 00:09:37,760 Speaker 1: you know, sort of holding their cards close to the 156 00:09:37,840 --> 00:09:41,560 Speaker 1: vest in terms of the details of what they're looking 157 00:09:41,600 --> 00:09:46,120 Speaker 1: into and what potential liability either the President or his 158 00:09:46,200 --> 00:09:49,880 Speaker 1: companies may face as a result of that. It seems 159 00:09:49,920 --> 00:09:54,680 Speaker 1: certainly like um everything is is potentially on the table um. 160 00:09:54,720 --> 00:09:58,160 Speaker 1: And it also seems certainly like the president, the former 161 00:09:58,200 --> 00:10:02,160 Speaker 1: president and his companies are the primary target of these probes. 162 00:10:02,400 --> 00:10:07,960 Speaker 1: The lawyers are simply being swept in as those probes playout. 163 00:10:08,360 --> 00:10:11,440 Speaker 1: Because it seems like you have two different factors. You 164 00:10:11,520 --> 00:10:14,400 Speaker 1: keep describing gray areas, and there certainly are a lot 165 00:10:14,440 --> 00:10:17,240 Speaker 1: of gray areas in this where it's even hard to 166 00:10:17,360 --> 00:10:20,240 Speaker 1: draw a line. And then on the other side, you 167 00:10:20,320 --> 00:10:24,360 Speaker 1: have these tax rules that are so complex that a 168 00:10:24,480 --> 00:10:29,319 Speaker 1: client by themselves wouldn't be able to in most instances 169 00:10:29,720 --> 00:10:33,240 Speaker 1: come up with these things. They need an expert exactly. 170 00:10:33,240 --> 00:10:36,439 Speaker 1: And you could certainly see why an individual or the 171 00:10:36,440 --> 00:10:39,200 Speaker 1: the person at the company who's signing their name on 172 00:10:39,320 --> 00:10:42,439 Speaker 1: these these tax documents would turn around and say, well, 173 00:10:42,480 --> 00:10:45,040 Speaker 1: I just listened to the advice of my accountants and 174 00:10:45,080 --> 00:10:48,200 Speaker 1: my lawyers. Um. And certainly that would be a hurdle. 175 00:10:49,080 --> 00:10:52,200 Speaker 1: Although that's not a defense, could certainly be a hurdle 176 00:10:52,240 --> 00:10:57,280 Speaker 1: in terms of where these investigations go um probing into 177 00:10:57,320 --> 00:11:01,520 Speaker 1: the Trump organization and the former president. I'm certain that 178 00:11:01,640 --> 00:11:04,640 Speaker 1: the investigators are trying to dig in there and get 179 00:11:04,640 --> 00:11:06,920 Speaker 1: a better sense of who was making the calls on 180 00:11:07,000 --> 00:11:10,520 Speaker 1: these things, who knew what was going on, and there 181 00:11:10,600 --> 00:11:13,679 Speaker 1: was the envelope was being pushed or lines were crossed, 182 00:11:14,400 --> 00:11:17,040 Speaker 1: Who was making that call? And because I take it 183 00:11:17,120 --> 00:11:19,760 Speaker 1: because you mentioned a few cases in your story that 184 00:11:19,960 --> 00:11:22,200 Speaker 1: there aren't that many cases that have been brought against 185 00:11:22,320 --> 00:11:26,160 Speaker 1: lawyers in tax matters, that's right. I mean the ones 186 00:11:26,200 --> 00:11:29,120 Speaker 1: that you see are the ones where, UM, folks are 187 00:11:29,120 --> 00:11:31,520 Speaker 1: really caught red handed there, you know, whether it's in 188 00:11:31,559 --> 00:11:34,720 Speaker 1: communications or or they admit to it in cord or 189 00:11:34,720 --> 00:11:39,680 Speaker 1: to investigators where UH lawyers are knowingly violating the law 190 00:11:40,480 --> 00:11:43,480 Speaker 1: to assist that their clients, and those are the sort 191 00:11:43,520 --> 00:11:48,880 Speaker 1: of open and closed cases, UM, and that are easier 192 00:11:48,920 --> 00:11:52,400 Speaker 1: to prosecute. I would assume, and you could see why investigators, 193 00:11:52,440 --> 00:11:55,480 Speaker 1: because there's so much gray area here, UH may not 194 00:11:55,960 --> 00:11:59,600 Speaker 1: to vote resources to those cases where it's unclear, UM, 195 00:11:59,760 --> 00:12:03,080 Speaker 1: you what's legal advice and what's criminal activity. Has any 196 00:12:03,160 --> 00:12:07,640 Speaker 1: lawyer gone to prison over this? Yes? UM, there was 197 00:12:07,840 --> 00:12:11,800 Speaker 1: a lawyer I believe he was at Sidley Austin, and 198 00:12:11,880 --> 00:12:13,760 Speaker 1: he was sentenced to six and a half years in 199 00:12:13,920 --> 00:12:18,520 Speaker 1: prison for writing letters that authorized tax shelters that k 200 00:12:18,760 --> 00:12:22,240 Speaker 1: PMG had created for various wealthy customers. So he did 201 00:12:22,280 --> 00:12:26,280 Speaker 1: six years in jail. UH, and the firm Sidley was 202 00:12:26,360 --> 00:12:29,400 Speaker 1: forced to say more than thirty nine million dollars in 203 00:12:29,440 --> 00:12:32,040 Speaker 1: a civil penalty to the I R. Tell us about 204 00:12:32,120 --> 00:12:35,800 Speaker 1: the timing here. This is all happening at the same 205 00:12:35,840 --> 00:12:40,560 Speaker 1: time that Morgan Lewis is trying to separate itself from 206 00:12:40,600 --> 00:12:43,400 Speaker 1: Trump and the Trump organization as a client. A week 207 00:12:43,520 --> 00:12:46,920 Speaker 1: or two before the judge made this ruling, the firm 208 00:12:47,000 --> 00:12:51,000 Speaker 1: said publicly that it would be no longer representing Trump 209 00:12:51,040 --> 00:12:53,560 Speaker 1: for his companies. Can they just drop a client in 210 00:12:53,559 --> 00:12:57,360 Speaker 1: the middle of an investigation? It's not that easy, for sure. 211 00:12:57,440 --> 00:12:59,959 Speaker 1: And I should say that these Morgan Lewis attorneys are 212 00:13:00,320 --> 00:13:03,880 Speaker 1: among a small army of lawyers from various firms that 213 00:13:03,920 --> 00:13:07,760 Speaker 1: are representing Trump contax in a wide range of other matters, 214 00:13:07,760 --> 00:13:10,920 Speaker 1: so he has no shortage of attorneys at his disposal. 215 00:13:11,280 --> 00:13:15,960 Speaker 1: But there are legal and ethical responsibilities in terms of 216 00:13:16,240 --> 00:13:19,199 Speaker 1: a firm extricating itself from a client in the middle 217 00:13:19,240 --> 00:13:23,240 Speaker 1: of an investigation or a court case. So, UM, it's 218 00:13:23,240 --> 00:13:26,240 Speaker 1: not something where they can say, Okay, we're done here. Uh, 219 00:13:26,280 --> 00:13:29,200 Speaker 1: and that's the end of it. There's you know, um 220 00:13:29,240 --> 00:13:32,560 Speaker 1: ethical rules that have to be met, and um, they 221 00:13:32,600 --> 00:13:36,800 Speaker 1: have to make sure that Trump has other council available 222 00:13:36,880 --> 00:13:39,520 Speaker 1: and and that they're checking all the boxes from the 223 00:13:39,640 --> 00:13:43,679 Speaker 1: ethics side. Thanks Chris. That's Christopher op for a Bloomberg 224 00:13:43,800 --> 00:13:47,920 Speaker 1: Law team leader for the Business of Law. I've been 225 00:13:47,960 --> 00:13:51,280 Speaker 1: talking to former federal prosecutor Robert Mints, a partner of 226 00:13:51,360 --> 00:13:55,400 Speaker 1: Carter in English about the unprecedented second impeachment trial of 227 00:13:55,559 --> 00:13:59,640 Speaker 1: former President Donald Trump, seems as if we know the 228 00:14:00,160 --> 00:14:05,680 Speaker 1: come already, what's the point. Well, that is a great question, 229 00:14:05,720 --> 00:14:09,400 Speaker 1: and that highlights the fact that that an impeachment in 230 00:14:09,440 --> 00:14:13,080 Speaker 1: the House followed by a trial in the Senate looks 231 00:14:13,120 --> 00:14:16,640 Speaker 1: a lot like a criminal trial, but in many respects 232 00:14:16,679 --> 00:14:19,680 Speaker 1: it's nothing like it at all. In fact, an impeachment 233 00:14:19,720 --> 00:14:25,080 Speaker 1: process is really a purely political process. For example, if 234 00:14:25,120 --> 00:14:28,440 Speaker 1: this were to be a criminal trial and jurors were 235 00:14:28,440 --> 00:14:31,920 Speaker 1: to have already announced that they were inclined to either 236 00:14:32,000 --> 00:14:34,920 Speaker 1: convict or a quit a defendant, they would not even 237 00:14:34,960 --> 00:14:38,160 Speaker 1: be permitted to sit on that jury. But in this case, 238 00:14:38,520 --> 00:14:40,520 Speaker 1: the jurors are members of the United States said it, 239 00:14:40,640 --> 00:14:44,160 Speaker 1: many of whom have already announced that they were leaning 240 00:14:44,240 --> 00:14:48,480 Speaker 1: either towards conviction or acquittal. Some have maintained that they're 241 00:14:48,480 --> 00:14:51,040 Speaker 1: going to keep an open mind, but in this case, 242 00:14:51,400 --> 00:14:54,640 Speaker 1: it seems that the outcome is preordained. There was emotion 243 00:14:54,760 --> 00:14:59,560 Speaker 1: presented by Senator brand Paul already before this process has 244 00:14:59,560 --> 00:15:02,600 Speaker 1: already be gone, in which senators voted on the question 245 00:15:02,680 --> 00:15:06,320 Speaker 1: of whether or not this impeachment trial was even constitutional 246 00:15:06,360 --> 00:15:09,680 Speaker 1: to begin with. The argument was that to cause President 247 00:15:09,680 --> 00:15:14,520 Speaker 1: Trump is no longer sitting president, that this impeachment is unconstitutional, 248 00:15:14,560 --> 00:15:17,840 Speaker 1: And there were enough Republican senators forty five of them 249 00:15:17,880 --> 00:15:21,600 Speaker 1: in fact, who already voted in favor of that motion, 250 00:15:21,840 --> 00:15:25,320 Speaker 1: that suggests that they are disinclined to vote for conviction 251 00:15:25,520 --> 00:15:29,600 Speaker 1: based upon this argument that the entire process is unconstitutional 252 00:15:29,840 --> 00:15:33,240 Speaker 1: at this point. So it does seem that unless there 253 00:15:33,320 --> 00:15:36,480 Speaker 1: is a huge shift in opinion on the part of 254 00:15:36,520 --> 00:15:39,800 Speaker 1: the Republican senator's very unlikely we're going to see a 255 00:15:39,800 --> 00:15:42,280 Speaker 1: conviction at the end of this process. So the first 256 00:15:42,360 --> 00:15:45,160 Speaker 1: day is going to be devoted to arguments about the 257 00:15:45,200 --> 00:15:49,240 Speaker 1: constitutionality of having an impeachment trial when a president is 258 00:15:49,280 --> 00:15:52,200 Speaker 1: out of office, and we can expect the vote to 259 00:15:52,240 --> 00:15:57,360 Speaker 1: be similar to that taken after Rand Paul's argument. So 260 00:15:57,400 --> 00:16:01,400 Speaker 1: on Wednesday, the actual trial will start. Reportedly, the house 261 00:16:01,440 --> 00:16:04,560 Speaker 1: managers have learned from last time, and they're going to 262 00:16:04,600 --> 00:16:09,920 Speaker 1: have a much more concise and shorter presentation, heavy on video. 263 00:16:10,000 --> 00:16:14,000 Speaker 1: What are you expecting to see? Reportedly, the house managers 264 00:16:14,440 --> 00:16:17,360 Speaker 1: have learned from the last time, and they're going to 265 00:16:17,480 --> 00:16:22,160 Speaker 1: have a much shorter presentation, heavy on video. What do 266 00:16:22,240 --> 00:16:24,880 Speaker 1: we know about what they might do here. I think 267 00:16:24,880 --> 00:16:28,040 Speaker 1: we're going to see the House managers having learned quite 268 00:16:28,040 --> 00:16:30,840 Speaker 1: a bit from the first impeachment trial, which went on 269 00:16:31,000 --> 00:16:34,480 Speaker 1: for almost three weeks, and many people, including members of 270 00:16:34,480 --> 00:16:37,200 Speaker 1: the Senate who stat through that trial found much of 271 00:16:37,200 --> 00:16:42,160 Speaker 1: the presentation repetitive and uninteresting. In this case, I think 272 00:16:42,240 --> 00:16:44,920 Speaker 1: we're going to see something entirely different. This is going 273 00:16:44,960 --> 00:16:48,640 Speaker 1: to be a video heavy presentation. It's going to be 274 00:16:49,200 --> 00:16:52,320 Speaker 1: very visual, and there's going to be a reliance on 275 00:16:52,600 --> 00:16:56,520 Speaker 1: primary source material as opposed to witness testimony. So what 276 00:16:56,560 --> 00:16:59,320 Speaker 1: I mean by that is instead of having videos of 277 00:16:59,400 --> 00:17:03,240 Speaker 1: individual who testified before House committees, we're going to see 278 00:17:03,320 --> 00:17:09,040 Speaker 1: the presentations by House managers here largely replaying actual clips 279 00:17:09,080 --> 00:17:13,960 Speaker 1: of President Trumps giving speeches, of President Trump tweeting out comments, 280 00:17:14,359 --> 00:17:17,200 Speaker 1: and that is going to be the focus of their case. 281 00:17:17,520 --> 00:17:20,000 Speaker 1: They are going to try to build this case around 282 00:17:20,119 --> 00:17:24,840 Speaker 1: President Trump's own words and own tweets. It seems like 283 00:17:24,920 --> 00:17:29,840 Speaker 1: the problem is going to be connecting his words to 284 00:17:30,480 --> 00:17:34,840 Speaker 1: his supporters actually storming the capital. I think we we're 285 00:17:34,840 --> 00:17:37,800 Speaker 1: going to see here is a presentation that takes the 286 00:17:37,880 --> 00:17:41,879 Speaker 1: Senate chronologically through the month long build up to the 287 00:17:42,000 --> 00:17:45,680 Speaker 1: January six storming of the Capital. They're going to try 288 00:17:45,720 --> 00:17:49,159 Speaker 1: to replay all the speeches, all of the comments, all 289 00:17:49,200 --> 00:17:52,840 Speaker 1: of the tweets that were made by President Trump challenging 290 00:17:53,119 --> 00:17:57,520 Speaker 1: the legitimacy of the election, challenging the outcome of the 291 00:17:57,640 --> 00:18:01,320 Speaker 1: voting process, and then they are going to build to 292 00:18:01,400 --> 00:18:05,280 Speaker 1: the presentation of Presidents Frump speaking outside the White House 293 00:18:05,400 --> 00:18:09,000 Speaker 1: only hours before the mob overtook the police and invaded 294 00:18:09,040 --> 00:18:12,000 Speaker 1: the Capitol building. They're going to key, in particular on 295 00:18:12,080 --> 00:18:15,600 Speaker 1: the President's comments his supporters to fight like hell and 296 00:18:15,720 --> 00:18:19,040 Speaker 1: march to the capital and confront Congress when Congress was 297 00:18:19,119 --> 00:18:22,960 Speaker 1: at that point certifying the election. The challenge for House 298 00:18:23,040 --> 00:18:26,840 Speaker 1: managers here is whether or not they can convince any 299 00:18:26,920 --> 00:18:32,200 Speaker 1: number of Republican Senators that it was foreseeable based upon 300 00:18:32,280 --> 00:18:36,800 Speaker 1: the president's comments that this insurrection should happen. It all 301 00:18:36,960 --> 00:18:39,879 Speaker 1: changes on the question of what was the President's intent 302 00:18:40,240 --> 00:18:44,080 Speaker 1: and was it foreseeable that this violence would erupt based 303 00:18:44,160 --> 00:18:47,360 Speaker 1: upon his language. That is going to be the challenge here, 304 00:18:47,560 --> 00:18:49,159 Speaker 1: and at the end of the day, it's going to 305 00:18:49,200 --> 00:18:53,800 Speaker 1: be difficult to convince the number of Republican senators seventeens 306 00:18:53,920 --> 00:18:57,040 Speaker 1: in order to gain a convintion. But let's remember also 307 00:18:57,480 --> 00:19:02,240 Speaker 1: that this impeachment process and this Peachman trial is largely 308 00:19:02,400 --> 00:19:06,880 Speaker 1: aimed at public opinion. House managers know that it's unlikely 309 00:19:06,920 --> 00:19:09,080 Speaker 1: they're going to get a conviction here, and so what 310 00:19:09,119 --> 00:19:12,280 Speaker 1: they're really trying to do is create a record for 311 00:19:12,440 --> 00:19:16,520 Speaker 1: the public to consume as they watch the events leading 312 00:19:16,600 --> 00:19:21,040 Speaker 1: up to January six unfold again during this trial, all 313 00:19:21,040 --> 00:19:25,200 Speaker 1: indications are that they're not going to call witnesses. Does 314 00:19:25,240 --> 00:19:29,680 Speaker 1: it leave something out of the presentation if you don't 315 00:19:29,720 --> 00:19:35,679 Speaker 1: have witnesses talking about what President Trump's reaction to the 316 00:19:35,800 --> 00:19:39,919 Speaker 1: riot was and his failure to take quick action to 317 00:19:40,000 --> 00:19:44,320 Speaker 1: stop the riot. Well, it's interesting because some of the 318 00:19:44,440 --> 00:19:47,439 Speaker 1: key witnesses in this trial are actually the members of 319 00:19:47,440 --> 00:19:51,240 Speaker 1: the Senate themselves, who leaves through the events of January six. 320 00:19:51,640 --> 00:19:54,200 Speaker 1: So that's another way in which this is a very 321 00:19:54,280 --> 00:19:57,879 Speaker 1: unusual trial. Typically, if this were to be a criminal trial, 322 00:19:57,920 --> 00:20:00,840 Speaker 1: for example, you would never have somebody sitting as a 323 00:20:00,960 --> 00:20:04,240 Speaker 1: juror who is actually also a witness. But here we 324 00:20:04,320 --> 00:20:06,800 Speaker 1: have all of the members of the Senate who sat 325 00:20:06,840 --> 00:20:09,960 Speaker 1: through the events of January six and witnessed the events 326 00:20:10,040 --> 00:20:13,800 Speaker 1: unfolding in real time before their very eyes. But what's 327 00:20:13,880 --> 00:20:18,679 Speaker 1: missing here is direct evidence of President Trump's reaction to 328 00:20:18,760 --> 00:20:21,879 Speaker 1: these events. We know that he was slow to ask 329 00:20:21,920 --> 00:20:25,280 Speaker 1: the rioters, the people who had overtaken the police and 330 00:20:25,359 --> 00:20:29,040 Speaker 1: taken control of the Capitol building to leave, but other 331 00:20:29,119 --> 00:20:32,080 Speaker 1: than that, there isn't a lot of evidence that shows 332 00:20:32,359 --> 00:20:37,119 Speaker 1: president state of mind while these rioters had stormed the 333 00:20:37,160 --> 00:20:43,919 Speaker 1: Capitol Building. There is some indication that the president's lawyers 334 00:20:43,960 --> 00:20:48,720 Speaker 1: may use video from Democrats talking to crowds, trying to, 335 00:20:48,800 --> 00:20:52,960 Speaker 1: I guess, replicate the idea of riling up a crowd, 336 00:20:53,040 --> 00:20:57,280 Speaker 1: But does that have any bearing here. There is a 337 00:20:57,320 --> 00:21:01,800 Speaker 1: possibility that in the president's offense, you're going to see 338 00:21:01,920 --> 00:21:07,280 Speaker 1: his lawyers find examples of Democrats giving speeches that they 339 00:21:07,320 --> 00:21:11,439 Speaker 1: will argue, we're equally incendiary. In other words, they're going 340 00:21:11,480 --> 00:21:15,439 Speaker 1: to argue that Democrats in other contexts gave speeches to 341 00:21:15,520 --> 00:21:18,919 Speaker 1: their supporters that were just as fiery, that were just 342 00:21:18,960 --> 00:21:23,239 Speaker 1: as incendiary, and in those cases nobody said anything, and 343 00:21:23,280 --> 00:21:26,680 Speaker 1: they were not responsible for any violence that may have ensued. 344 00:21:26,920 --> 00:21:29,840 Speaker 1: In this case, there was violence of a different sort. 345 00:21:29,960 --> 00:21:32,440 Speaker 1: There was the storming of the capital. But the point 346 00:21:32,480 --> 00:21:35,040 Speaker 1: that the president's lawyers will be trying to make here 347 00:21:35,800 --> 00:21:39,400 Speaker 1: is that the president was not responsible for that conduct 348 00:21:39,720 --> 00:21:44,000 Speaker 1: because it was, in some substance not all that different 349 00:21:44,160 --> 00:21:47,720 Speaker 1: from the same type of language that Democrats used in 350 00:21:47,800 --> 00:21:52,280 Speaker 1: trying to speak to their base of supporters. Another constitutional 351 00:21:52,359 --> 00:21:56,120 Speaker 1: argument the defense is going to use is that Trump 352 00:21:56,160 --> 00:21:59,720 Speaker 1: had the First Amendment right to make the speech that 353 00:21:59,800 --> 00:22:03,359 Speaker 1: he did. Is that a strong or weak argument in 354 00:22:03,400 --> 00:22:07,800 Speaker 1: your opinion? Well, it's really not a case about First 355 00:22:07,840 --> 00:22:11,760 Speaker 1: Amendment right. It's a case about whether it was foreseeable 356 00:22:12,119 --> 00:22:15,679 Speaker 1: that this insurrection would have resulted as a result of 357 00:22:15,720 --> 00:22:19,760 Speaker 1: the words that were spoken. One of the interesting issues 358 00:22:19,800 --> 00:22:23,040 Speaker 1: that we may see unfold in terms of the president's 359 00:22:23,040 --> 00:22:27,280 Speaker 1: defense team is how they handle the president's claims about 360 00:22:27,400 --> 00:22:30,480 Speaker 1: election fraud and that the results of the election were 361 00:22:30,520 --> 00:22:35,000 Speaker 1: stolen from him. That's a highly controversial area that Republicans 362 00:22:35,000 --> 00:22:37,200 Speaker 1: in the Senate do not want to see as the 363 00:22:37,320 --> 00:22:41,800 Speaker 1: centerpiece of that defense. So far, the defense lawyers have 364 00:22:41,960 --> 00:22:45,040 Speaker 1: handled that in a very delicate way by arguing that 365 00:22:45,080 --> 00:22:48,560 Speaker 1: there was quote unquote insufficient evidence it true that the 366 00:22:48,600 --> 00:22:52,080 Speaker 1: president's claims about election fraud were fall So in some 367 00:22:52,160 --> 00:22:54,840 Speaker 1: ways they're trying to thread the needle there by not 368 00:22:54,960 --> 00:22:58,679 Speaker 1: taking on that issue directly, which is something that Senate 369 00:22:58,680 --> 00:23:02,399 Speaker 1: Republicans do not want to see as a centerpiece of 370 00:23:02,440 --> 00:23:05,600 Speaker 1: the President's defense, but at the same time not leaving 371 00:23:05,640 --> 00:23:10,159 Speaker 1: it out altogether, which is something that former President Trump 372 00:23:10,480 --> 00:23:14,480 Speaker 1: legedly feel strongly about. In the brief that the defense 373 00:23:14,640 --> 00:23:19,160 Speaker 1: filed today, their final brief before trial, they really made 374 00:23:19,160 --> 00:23:22,480 Speaker 1: a political argument against the Democrats as well. They said 375 00:23:22,560 --> 00:23:26,080 Speaker 1: that this was an act of political theater and that 376 00:23:26,160 --> 00:23:29,520 Speaker 1: the Democrats were exploiting the chaos and trauma of the 377 00:23:29,600 --> 00:23:34,879 Speaker 1: Capitol riot just continuing their attacks on Trump. Is that 378 00:23:34,920 --> 00:23:36,920 Speaker 1: a good argument to make in a case like this 379 00:23:37,359 --> 00:23:41,080 Speaker 1: to blame the prosecution basically, But what they're trying to 380 00:23:41,240 --> 00:23:44,560 Speaker 1: argue is that the Democrats are trying to take political 381 00:23:44,640 --> 00:23:49,440 Speaker 1: advantage of this very unfortunate event that costs the line 382 00:23:50,040 --> 00:23:53,760 Speaker 1: of five Americans when individual store in the Capitol building. 383 00:23:54,040 --> 00:23:56,800 Speaker 1: And in a sense they are correct and that this 384 00:23:57,080 --> 00:24:00,520 Speaker 1: is a political process. But I think that argument is 385 00:24:00,560 --> 00:24:03,919 Speaker 1: going to get overwhelmed by the visual evidence of the 386 00:24:03,960 --> 00:24:08,160 Speaker 1: events of the day, showing these people storming the building, 387 00:24:08,480 --> 00:24:11,679 Speaker 1: pushing past Capitol police officers. That is going to be 388 00:24:11,760 --> 00:24:14,760 Speaker 1: something that is gonna be very difficult to rebut and 389 00:24:14,960 --> 00:24:18,040 Speaker 1: trying to suggest that this is all about politics, I 390 00:24:18,040 --> 00:24:21,040 Speaker 1: think is probably not going to be a particularly persuasive 391 00:24:21,160 --> 00:24:23,600 Speaker 1: argument for those people who are going to watch this 392 00:24:23,720 --> 00:24:26,960 Speaker 1: trial unfold on television. Do you think that it's an 393 00:24:27,040 --> 00:24:32,000 Speaker 1: uphill battle to prove Trump's intent? If this were a 394 00:24:32,000 --> 00:24:34,919 Speaker 1: criminal trial, would they be able to prove his intent 395 00:24:35,040 --> 00:24:38,760 Speaker 1: beyond a reasonable doubt? Well, that is a great question, 396 00:24:39,240 --> 00:24:42,119 Speaker 1: But remember it's not a criminal trial here until the 397 00:24:42,280 --> 00:24:47,639 Speaker 1: standards that ultimately senators will use to either convict or 398 00:24:47,680 --> 00:24:50,920 Speaker 1: a quit here, or whatever they feel in their heart, 399 00:24:51,000 --> 00:24:53,600 Speaker 1: in their soul as they look at this evidence is 400 00:24:53,640 --> 00:24:56,600 Speaker 1: the right thing to do. There is no legal standard 401 00:24:56,920 --> 00:25:00,920 Speaker 1: by which senators will judge either the guilt or innocent 402 00:25:01,000 --> 00:25:04,639 Speaker 1: of the president in this case. It seems that both 403 00:25:04,680 --> 00:25:10,000 Speaker 1: sides want this to be a really quick trial, about 404 00:25:10,000 --> 00:25:12,560 Speaker 1: a week long. Is that too short to get all 405 00:25:12,640 --> 00:25:15,280 Speaker 1: this in and in a week? A week would be 406 00:25:15,320 --> 00:25:20,800 Speaker 1: an unprecedented impeachment trial. Remember that President Trump's first impeachment 407 00:25:20,800 --> 00:25:24,320 Speaker 1: trial lasted three weeks. And this is of course the 408 00:25:24,320 --> 00:25:26,920 Speaker 1: first time that any president in US history has been 409 00:25:26,960 --> 00:25:30,400 Speaker 1: impeached twice. So this is going to be a very 410 00:25:30,480 --> 00:25:36,920 Speaker 1: abbreviated trial. It's going to be mostly visual and video testimony, 411 00:25:37,119 --> 00:25:39,879 Speaker 1: and in the end, both sides want to see this 412 00:25:40,040 --> 00:25:43,719 Speaker 1: over as quickly as possible for their own reasons. Democrats 413 00:25:43,800 --> 00:25:46,760 Speaker 1: don't want to be seen as overdoing this case. They 414 00:25:46,760 --> 00:25:49,800 Speaker 1: were in some ways criticized during the first minute impeachment 415 00:25:49,800 --> 00:25:53,520 Speaker 1: trial for giving a case that went on longer than 416 00:25:53,560 --> 00:25:56,760 Speaker 1: it should have, it lost the public's interest in some ways, 417 00:25:56,840 --> 00:26:00,440 Speaker 1: and was very repetitive, and other proportions of their presentation here. 418 00:26:00,480 --> 00:26:02,960 Speaker 1: They want something that's going to be riveting, that's going 419 00:26:03,000 --> 00:26:06,800 Speaker 1: to be very cinematic, almost Hollywood like, something that they 420 00:26:06,840 --> 00:26:11,880 Speaker 1: will hope that the public will watch closely for one week. Republicans, 421 00:26:11,880 --> 00:26:14,240 Speaker 1: on the other hand, also want to have this over 422 00:26:14,600 --> 00:26:17,600 Speaker 1: as soon as possible because they would like to get 423 00:26:17,640 --> 00:26:22,040 Speaker 1: this behind them and move on. Some Republicans want to 424 00:26:22,080 --> 00:26:23,959 Speaker 1: move on to what they hope will be a post 425 00:26:24,040 --> 00:26:29,920 Speaker 1: Trump Republican party. Others are continuing to build their future 426 00:26:30,240 --> 00:26:33,320 Speaker 1: around Trump Party. So we'll just have to see how 427 00:26:33,320 --> 00:26:36,920 Speaker 1: that plays out for Republicans. Thanks Bob. That's Robert Mints 428 00:26:36,960 --> 00:26:39,680 Speaker 1: of McCarter and English, and that's it for the edition 429 00:26:39,720 --> 00:26:42,800 Speaker 1: of the Bloomberg Lawn Podcast. I'm June Grosso. Thanks so 430 00:26:42,880 --> 00:26:45,480 Speaker 1: much for listening, and remember you can always get the 431 00:26:45,520 --> 00:26:48,680 Speaker 1: latest legal news on our Bloomberg Lawn podcast. You can 432 00:26:48,720 --> 00:26:52,200 Speaker 1: find them on Apple Podcasts, Spotify, and wherever you get 433 00:26:52,240 --> 00:27:01,040 Speaker 1: your favorite podcasts. You're listening to Bloomburn