1 00:00:00,560 --> 00:00:05,360 Speaker 1: This is Bloomberg Law with June Grassoe from Bloomberg Radio. 2 00:00:06,160 --> 00:00:10,000 Speaker 1: You may remember back in six when Prett Barrara, then 3 00:00:10,039 --> 00:00:12,640 Speaker 1: the U S. Attorney for the Southern District of New York, 4 00:00:13,000 --> 00:00:17,520 Speaker 1: issued a warning to Wall Street Today, tomorrow, next week, 5 00:00:17,840 --> 00:00:21,680 Speaker 1: the week after cribbleged Wall Street insiders who are considering 6 00:00:21,720 --> 00:00:25,400 Speaker 1: breaking the law will have to ask themselves an important 7 00:00:25,480 --> 00:00:30,120 Speaker 1: question is law enforcement listening? A slew of insider trading 8 00:00:30,160 --> 00:00:34,680 Speaker 1: convictions followed cementing Barrara's nickname as the Sheriff of Wall Street. 9 00:00:34,960 --> 00:00:38,159 Speaker 1: But the sheriff is gone and the Trump administration is 10 00:00:38,200 --> 00:00:42,960 Speaker 1: apparently not interested in filling the position. The prosecution of 11 00:00:43,000 --> 00:00:45,920 Speaker 1: white collar crime has hidden all time low during the 12 00:00:45,920 --> 00:00:50,199 Speaker 1: Trump administration, down thirty for Trump's first three years in 13 00:00:50,280 --> 00:00:54,080 Speaker 1: office from the average under President Barack Obama, according to 14 00:00:54,160 --> 00:00:57,600 Speaker 1: data from Syracuse University. Joining me is John Coffee, a 15 00:00:57,680 --> 00:01:01,320 Speaker 1: professor Columbia Law School. His new book is Corporate Crime 16 00:01:01,400 --> 00:01:05,400 Speaker 1: and Punishment, The Crisis of Under Enforcement. Jack, how would 17 00:01:05,440 --> 00:01:09,280 Speaker 1: you characterize the drop in the white color crime numbers. Well, 18 00:01:09,280 --> 00:01:12,680 Speaker 1: I think it's the enforcement. Generally. You can look at 19 00:01:12,720 --> 00:01:16,000 Speaker 1: the number of dependants who are prosecuted way down. You 20 00:01:16,040 --> 00:01:19,120 Speaker 1: can look at the fines that are imposed on corporations 21 00:01:19,160 --> 00:01:23,200 Speaker 1: down by sevent You can look at new policies that 22 00:01:23,319 --> 00:01:25,640 Speaker 1: say you don't have to do much to get credit 23 00:01:25,680 --> 00:01:28,760 Speaker 1: for a compliance plan. It used to be, for example, 24 00:01:28,880 --> 00:01:32,559 Speaker 1: that the Anti Trust pass in price fixing would only 25 00:01:32,640 --> 00:01:35,399 Speaker 1: grant your leniency if you made a complete, in total 26 00:01:35,480 --> 00:01:38,640 Speaker 1: confession and you were the first to confess. That's all 27 00:01:38,680 --> 00:01:41,600 Speaker 1: been thrown out recently by the Trump administration. And as 28 00:01:41,640 --> 00:01:45,400 Speaker 1: long as you adopt a reasonably credible compliance plan, you 29 00:01:45,440 --> 00:01:49,559 Speaker 1: can get very substantial sentencing leniency, even for a crime 30 00:01:49,640 --> 00:01:52,920 Speaker 1: like price fixing, which is extremely hard to detect. I 31 00:01:52,920 --> 00:01:56,200 Speaker 1: can give you examples on all kinds of areas in 32 00:01:56,320 --> 00:01:58,920 Speaker 1: terms of the numbers or in terms of the policy changes. 33 00:01:59,440 --> 00:02:03,320 Speaker 1: But the government is going much much easier and softer, 34 00:02:03,800 --> 00:02:08,280 Speaker 1: both criminally and civilly against corporations to commit on lawcal conduct. 35 00:02:08,560 --> 00:02:11,000 Speaker 1: Do we blame the president for this or is it 36 00:02:11,120 --> 00:02:15,040 Speaker 1: someone lower down in the chain? Well, that's a good question, man. 37 00:02:15,080 --> 00:02:18,840 Speaker 1: I would tell you the first thing about organizational behavior 38 00:02:18,880 --> 00:02:23,800 Speaker 1: corporations or other organizations is that the critical variable is 39 00:02:23,919 --> 00:02:27,280 Speaker 1: tone at the top. And the United States governed today, 40 00:02:27,400 --> 00:02:30,440 Speaker 1: the tone set by the top by the president is 41 00:02:30,520 --> 00:02:34,080 Speaker 1: that law compliance isn't that important. It's a minor virtue 42 00:02:34,080 --> 00:02:36,920 Speaker 1: at best, and don't get yourself hung up on it. 43 00:02:37,000 --> 00:02:40,320 Speaker 1: Get the job done. So I think that there is 44 00:02:40,360 --> 00:02:44,359 Speaker 1: an implicit signal from the top which lower levels always 45 00:02:44,400 --> 00:02:48,040 Speaker 1: copy that law compliance is not the government's first concern. 46 00:02:48,760 --> 00:02:51,880 Speaker 1: Let's look at a few different areas of white color crime, 47 00:02:52,080 --> 00:02:55,840 Speaker 1: starting with securities fraud cases. Well, we're saying them go 48 00:02:55,880 --> 00:02:59,440 Speaker 1: down and understand, for the last six months there has 49 00:02:59,480 --> 00:03:03,880 Speaker 1: been the COVID nineteen crisis and most court houses are shut. 50 00:03:04,000 --> 00:03:06,720 Speaker 1: So I do know that there are a number of cases, 51 00:03:06,880 --> 00:03:09,600 Speaker 1: some of which I've worked with the prosecution on, which 52 00:03:09,600 --> 00:03:12,760 Speaker 1: are delayed until the courts can reopen. That will create 53 00:03:13,320 --> 00:03:17,280 Speaker 1: something of a statistical artifact. But in general, I think 54 00:03:17,320 --> 00:03:21,440 Speaker 1: the government is reallocating troops away from securities fraud, any 55 00:03:21,440 --> 00:03:24,720 Speaker 1: trust fraud, to things the government cares more about, such 56 00:03:24,760 --> 00:03:29,840 Speaker 1: as immigration cases, alleged terrorism cases, other cases that they 57 00:03:29,840 --> 00:03:33,519 Speaker 1: are concerned with the first three years of the Trump administration. 58 00:03:33,720 --> 00:03:36,520 Speaker 1: This comes from data assembled by a group of Syracuse 59 00:03:36,680 --> 00:03:39,760 Speaker 1: University with the number of white color dependence during the 60 00:03:40,000 --> 00:03:44,360 Speaker 1: first three years spelled by that's a real decline because 61 00:03:44,440 --> 00:03:47,760 Speaker 1: there had been a significant increase for a while under 62 00:03:47,800 --> 00:03:53,040 Speaker 1: the Obama administration. Now, the Justice Department has criticized that 63 00:03:53,520 --> 00:03:58,360 Speaker 1: tract data, saying it routinely differs from other reporting, for example, 64 00:03:58,440 --> 00:04:01,040 Speaker 1: from the U. S. Attorney's Office, And they say that 65 00:04:01,080 --> 00:04:05,280 Speaker 1: the Department hasn't eased up on white collar crime. Well, actually, 66 00:04:05,320 --> 00:04:09,880 Speaker 1: the government's official statistics are only slightly different TRACK, which 67 00:04:10,000 --> 00:04:14,440 Speaker 1: stands for Transactional Report Access Clearing Out. It's a watchdog 68 00:04:14,560 --> 00:04:17,240 Speaker 1: looking at Justice Department, and they're not loved by Justice. 69 00:04:17,560 --> 00:04:19,920 Speaker 1: No one loves to be watched. They say the number 70 00:04:19,920 --> 00:04:23,120 Speaker 1: of dependents is down by and the studies by the 71 00:04:23,240 --> 00:04:27,800 Speaker 1: attorneys say it's down by not a huge difference. So 72 00:04:27,960 --> 00:04:33,080 Speaker 1: is it that the FBI is not investigating these crimes anymore, 73 00:04:33,160 --> 00:04:36,000 Speaker 1: they're just letting it go by. Well, I would say 74 00:04:36,040 --> 00:04:40,640 Speaker 1: most of US attorneys use the FBI or other enforcement agencies, 75 00:04:40,880 --> 00:04:43,920 Speaker 1: but they've got to allocate their own manpower. If at 76 00:04:43,960 --> 00:04:46,400 Speaker 1: one point in time you had twenty people in the 77 00:04:46,480 --> 00:04:49,080 Speaker 1: securities fraud Unit in the Southern District and you were 78 00:04:49,120 --> 00:04:52,400 Speaker 1: to reduce it to ten, you're going to cut the 79 00:04:52,440 --> 00:04:55,680 Speaker 1: manpower that can prosecute these cases by fifty percent, and 80 00:04:55,720 --> 00:04:58,719 Speaker 1: there will be a decline, So it could be part 81 00:04:58,720 --> 00:05:01,880 Speaker 1: of the FBI, but I think it's more the manpower 82 00:05:01,920 --> 00:05:05,479 Speaker 1: and what they're given is their priority. Some observers say 83 00:05:05,520 --> 00:05:09,919 Speaker 1: that though there's a downturn in white collar prosecutions, there's 84 00:05:09,960 --> 00:05:14,080 Speaker 1: an optick in immigration prosecutions. Well, I agree with that, 85 00:05:14,160 --> 00:05:17,120 Speaker 1: but that's because you're allocating the truths differently if you 86 00:05:17,200 --> 00:05:19,920 Speaker 1: take your man power. Let's suppose the U. S Attorney 87 00:05:19,960 --> 00:05:22,839 Speaker 1: has a hundred lawyers under his command, and when he 88 00:05:22,920 --> 00:05:26,120 Speaker 1: started he had twenty five with him in white collar crime, 89 00:05:26,520 --> 00:05:28,839 Speaker 1: and after two years he shifts well with them out 90 00:05:28,839 --> 00:05:31,600 Speaker 1: and puts them over in immigration or terrorism cases. Are 91 00:05:31,680 --> 00:05:35,680 Speaker 1: organized crime cases, you're going to have a consequent declimb 92 00:05:35,760 --> 00:05:39,000 Speaker 1: because there are less people they're investigating, and you only 93 00:05:39,040 --> 00:05:43,200 Speaker 1: prosecute what you investigate. What about money laundering, Well, there 94 00:05:43,200 --> 00:05:46,120 Speaker 1: has been a decline of money laundering cases. Money laundering 95 00:05:46,279 --> 00:05:50,080 Speaker 1: is unique because the prosecution can charge that pretty much 96 00:05:50,080 --> 00:05:53,000 Speaker 1: when it wants. It's a very easy crime to allege 97 00:05:53,040 --> 00:05:57,240 Speaker 1: if you found other felonies, and by eliminating money learning prosecutions, 98 00:05:57,320 --> 00:06:01,039 Speaker 1: you are again being more lenient on incorporation and why 99 00:06:01,200 --> 00:06:05,000 Speaker 1: Well that's speculative. It could well be the Trump administration 100 00:06:05,120 --> 00:06:08,560 Speaker 1: believes that the stock market is the most important achievement 101 00:06:08,640 --> 00:06:11,960 Speaker 1: they have and they don't want to prosecute public corporations. 102 00:06:12,000 --> 00:06:15,200 Speaker 1: And because the market go down, that's all speculative. What 103 00:06:15,320 --> 00:06:18,080 Speaker 1: I can tell you is they've changed their requirements and 104 00:06:18,120 --> 00:06:21,320 Speaker 1: it is now much easier to get leniency. At the 105 00:06:21,400 --> 00:06:25,400 Speaker 1: end of the Obama administration, they were somewhat embarrassed by 106 00:06:25,400 --> 00:06:27,640 Speaker 1: the fact that no one at a senior level at 107 00:06:27,640 --> 00:06:30,880 Speaker 1: a Wall Street firm was prosecuted during the two thousand 108 00:06:30,920 --> 00:06:33,640 Speaker 1: eight or because of the two thousand eight What I 109 00:06:33,640 --> 00:06:36,480 Speaker 1: can tell you is they've changed their requirements and it 110 00:06:36,560 --> 00:06:39,800 Speaker 1: is now much easier to get leniency. At the end 111 00:06:39,839 --> 00:06:43,479 Speaker 1: of the Obama administration, they were somewhat embarrassed by the 112 00:06:43,520 --> 00:06:45,640 Speaker 1: fact that no one at a senior level at a 113 00:06:45,680 --> 00:06:49,080 Speaker 1: Wall Street firm was prosecuted during the two thousand eight 114 00:06:49,160 --> 00:06:51,840 Speaker 1: or because of the two thousand and eight crisis. So 115 00:06:51,880 --> 00:06:56,599 Speaker 1: they adopted something called the Yates Memorandum, named after Sally Yates, 116 00:06:56,640 --> 00:06:59,320 Speaker 1: who was the Deputy Attorney General, and it said we're 117 00:06:59,320 --> 00:07:03,120 Speaker 1: no longer to give you a deferred prosecution agreement, which 118 00:07:03,120 --> 00:07:06,960 Speaker 1: is a probation like discharge unless you do a complete 119 00:07:06,960 --> 00:07:11,000 Speaker 1: study and identify absolutely everyone who was involved, so we'll 120 00:07:11,000 --> 00:07:13,440 Speaker 1: know who the officers are that we can prosecute. And 121 00:07:13,440 --> 00:07:16,800 Speaker 1: this was an all or nothing policy, identify everyone. Well, 122 00:07:16,840 --> 00:07:19,240 Speaker 1: the Trump administration comes in and they change it and 123 00:07:19,280 --> 00:07:21,960 Speaker 1: they say, you only have to identify people who are 124 00:07:22,000 --> 00:07:26,080 Speaker 1: substantially involved in the crime. What does that mean. It 125 00:07:26,120 --> 00:07:29,040 Speaker 1: means if there's an investigation by a private law firm 126 00:07:29,120 --> 00:07:31,360 Speaker 1: hired by the company to see what happened and make 127 00:07:31,360 --> 00:07:34,160 Speaker 1: a report to the government, they can say, well, the 128 00:07:34,200 --> 00:07:36,960 Speaker 1: only people who paid the bribe for these assistant vice 129 00:07:37,000 --> 00:07:40,840 Speaker 1: presidents overseas, and while maybe the CEO and maybe the 130 00:07:40,920 --> 00:07:45,640 Speaker 1: chief financial officer knew something about this, they weren't substantially involved. 131 00:07:45,800 --> 00:07:49,280 Speaker 1: And that's a very easy rationalization by which you can 132 00:07:49,360 --> 00:07:53,120 Speaker 1: exclude the most senior people and thereby make sure that 133 00:07:53,240 --> 00:07:55,520 Speaker 1: justice will stop at a half white point. It's a 134 00:07:55,600 --> 00:08:00,000 Speaker 1: significant change that the Trump administration put into effectively unwanted 135 00:08:00,000 --> 00:08:03,280 Speaker 1: in the Eighth Memorandum. They've done this in other areas too. 136 00:08:03,520 --> 00:08:06,480 Speaker 1: For the last seventy years, the US government has had 137 00:08:06,480 --> 00:08:10,400 Speaker 1: a special policy towards any trust price fixing. Any trust 138 00:08:10,400 --> 00:08:13,560 Speaker 1: price fixing is very hard to detect, but it always 139 00:08:13,560 --> 00:08:17,000 Speaker 1: involves the conspiracy. One firm can't do it alone. And 140 00:08:17,080 --> 00:08:19,600 Speaker 1: so the positive for seventy years is we will give 141 00:08:19,640 --> 00:08:23,240 Speaker 1: you leniency, but only if you make a complete confession, 142 00:08:23,320 --> 00:08:26,880 Speaker 1: and you are the first to confess. The business community 143 00:08:27,000 --> 00:08:31,240 Speaker 1: always disliked that, but companies did make those complete confessions 144 00:08:31,480 --> 00:08:34,559 Speaker 1: and god immunity for themselves and their officers. Well, the 145 00:08:34,559 --> 00:08:37,800 Speaker 1: Trump administration has abolished that. They will now say that 146 00:08:37,840 --> 00:08:40,600 Speaker 1: while you can still get complete credit, will give you 147 00:08:40,800 --> 00:08:45,040 Speaker 1: substantial sentencing leniency, great credit if you just adopt a 148 00:08:45,120 --> 00:08:49,280 Speaker 1: credible compliance plan, not the substantial watering down. It means 149 00:08:49,320 --> 00:08:52,440 Speaker 1: that price fixing cases are less likely to begin with 150 00:08:52,559 --> 00:08:55,559 Speaker 1: corporate confessions. We can go through half a dozen of 151 00:08:55,600 --> 00:08:58,240 Speaker 1: these things. Just to give you one more. It used 152 00:08:58,280 --> 00:09:01,360 Speaker 1: to be that there were deferred execution agreements, and the 153 00:09:01,360 --> 00:09:04,280 Speaker 1: defense bar wanted more. So they pushed for something called 154 00:09:04,400 --> 00:09:07,520 Speaker 1: non prosecution agreements, under which no court is involved. You 155 00:09:07,600 --> 00:09:10,720 Speaker 1: just agree with the prosecution that they won't prosecute you. 156 00:09:11,080 --> 00:09:13,679 Speaker 1: And now they've gone one step further. There's something called 157 00:09:14,160 --> 00:09:18,480 Speaker 1: declinations with discouragement. And here the government sort of salute you, 158 00:09:18,760 --> 00:09:22,000 Speaker 1: y say, we think your cooperation was so terrific, so 159 00:09:22,080 --> 00:09:25,120 Speaker 1: wonderful that we're going to decline to prosecute you. We 160 00:09:25,160 --> 00:09:27,600 Speaker 1: will require you to pay back the ill, not gains 161 00:09:27,640 --> 00:09:30,760 Speaker 1: to discoorge them. But that's sort of a lesser disposition, 162 00:09:30,800 --> 00:09:34,240 Speaker 1: which the government salute you for your cooperation. That's new 163 00:09:34,280 --> 00:09:36,400 Speaker 1: with Trump. I can give you two or three more, 164 00:09:36,440 --> 00:09:39,960 Speaker 1: but you're getting the picture. Yes, Absolutely, cracking down on 165 00:09:40,080 --> 00:09:45,880 Speaker 1: financial fraud led to reforms and increase corporate compliance. What 166 00:09:46,080 --> 00:09:50,040 Speaker 1: is this, uh, non prosecution leading to Well, again, there 167 00:09:50,040 --> 00:09:53,240 Speaker 1: were two steps to bird prosecution. Non prosecution, which has 168 00:09:53,280 --> 00:09:55,400 Speaker 1: been around for six or seven years and not not 169 00:09:55,640 --> 00:09:58,400 Speaker 1: unique to Trump, but Trump is using it much more. 170 00:09:58,440 --> 00:10:02,080 Speaker 1: It's a lesser disposition under which you don't have to 171 00:10:02,160 --> 00:10:04,920 Speaker 1: admit guilt, you don't have any public document, you have 172 00:10:05,000 --> 00:10:08,120 Speaker 1: no court or judge involved, and both of those things 173 00:10:08,240 --> 00:10:11,280 Speaker 1: mean a little bit more accountability. Uh. It used to 174 00:10:11,280 --> 00:10:14,240 Speaker 1: be under deferred prosecution agreements, it was normal that the 175 00:10:14,280 --> 00:10:16,880 Speaker 1: government would require you to put to appoint a monitor, 176 00:10:17,040 --> 00:10:20,880 Speaker 1: some outside expert who would review the area of misbehavior 177 00:10:21,200 --> 00:10:24,920 Speaker 1: and constantly surveil and tell the government who found that 178 00:10:25,000 --> 00:10:28,280 Speaker 1: there was any sign of continuing activity, that anyone illegal 179 00:10:28,320 --> 00:10:32,640 Speaker 1: conduct or suspicious conduct. The Trump administration has said monitors 180 00:10:32,640 --> 00:10:36,280 Speaker 1: are no longer required, and they are disappearing. I don't 181 00:10:36,280 --> 00:10:38,760 Speaker 1: think there ever were a perfect solution, but there were 182 00:10:38,760 --> 00:10:42,080 Speaker 1: one more little step that's gone. I'm wondering, is there 183 00:10:42,120 --> 00:10:46,520 Speaker 1: any effect to be seen yet our corporations engaging in 184 00:10:46,640 --> 00:10:51,920 Speaker 1: more criminal behavior because there's no enforcement. No, of course, 185 00:10:51,960 --> 00:10:54,040 Speaker 1: no one's going to confess to that. No one's going 186 00:10:54,080 --> 00:10:56,400 Speaker 1: to say, of course, we're engaging a more criminal behavior. 187 00:10:56,800 --> 00:11:00,080 Speaker 1: But they think the government's behaving much more reasonably. And 188 00:11:00,080 --> 00:11:03,000 Speaker 1: when dependants think the prosecutor is being reasonable, I think 189 00:11:03,000 --> 00:11:05,080 Speaker 1: it means it's a very light touch and we're not 190 00:11:05,200 --> 00:11:09,360 Speaker 1: getting the harder attitude that we saw at various points 191 00:11:09,679 --> 00:11:14,199 Speaker 1: back under the Obama administration. Now, how much is dependent 192 00:11:14,400 --> 00:11:17,199 Speaker 1: on who the U. S. Attorney is in the Southern District, 193 00:11:17,200 --> 00:11:21,240 Speaker 1: particularly where there's a lot of white color prosecutions, because 194 00:11:21,559 --> 00:11:24,720 Speaker 1: of course, you remember pret Berrara, the sheriff, so called 195 00:11:24,800 --> 00:11:29,040 Speaker 1: Sheriff of Wall Street, who cracked down on insider trading. 196 00:11:29,640 --> 00:11:32,320 Speaker 1: Nothing did. We don't see anything like that anymore. He 197 00:11:32,400 --> 00:11:35,840 Speaker 1: deserves great credit. But actually there's been a long tradition 198 00:11:35,880 --> 00:11:39,679 Speaker 1: in the Southern district. In fact, other use attorneys call 199 00:11:39,760 --> 00:11:43,120 Speaker 1: them the sovereign District in New York because they always 200 00:11:43,320 --> 00:11:48,000 Speaker 1: resisted main justice and followed their own very aggressive policies. 201 00:11:48,400 --> 00:11:51,640 Speaker 1: But note that the last two duly appointed House Attorneys, 202 00:11:52,280 --> 00:11:56,199 Speaker 1: both Preeperhara and his Republican successor, have been fired by 203 00:11:56,240 --> 00:11:59,280 Speaker 1: President Trump. That's a pretty strong signal that you can't 204 00:11:59,280 --> 00:12:01,800 Speaker 1: remain into and you can't go your own way. No, 205 00:12:01,920 --> 00:12:03,839 Speaker 1: I don't know any place else where the government has 206 00:12:03,880 --> 00:12:07,240 Speaker 1: fired two successive U S attorneys. One of the former 207 00:12:07,320 --> 00:12:12,400 Speaker 1: prosecutors in the Antitrust and Fraud Division said that a 208 00:12:12,480 --> 00:12:17,760 Speaker 1: lot of this non enforcement is because veterans. Veteran attorneys 209 00:12:17,840 --> 00:12:21,560 Speaker 1: have left that division, and then there are younger lawyers 210 00:12:21,559 --> 00:12:23,840 Speaker 1: there who really don't know yet how to put a 211 00:12:23,880 --> 00:12:28,760 Speaker 1: case together. Do you think that's a valid explanation. I 212 00:12:28,800 --> 00:12:31,560 Speaker 1: can't reject it. I don't know that do we have 213 00:12:31,800 --> 00:12:34,640 Speaker 1: in the people in the Justice Department with the Usttorney's Office, 214 00:12:34,720 --> 00:12:38,080 Speaker 1: they usually get the very best people, Supreme Court perks 215 00:12:38,080 --> 00:12:40,520 Speaker 1: and the others. But it takes a while to learn 216 00:12:40,559 --> 00:12:43,040 Speaker 1: your job. You can't do it fully on day one. 217 00:12:43,559 --> 00:12:47,280 Speaker 1: But notice if they are leaving, why are they leaving? 218 00:12:47,360 --> 00:12:50,800 Speaker 1: It might be they have been demoralized by the new policies, 219 00:12:50,880 --> 00:12:54,760 Speaker 1: the new restraints, and the lack of commitment to strong enforcement. 220 00:12:55,320 --> 00:12:58,479 Speaker 1: I would think I wouldn't personally as a young aggressive 221 00:12:58,600 --> 00:13:01,520 Speaker 1: U S attorney or says new attorney, I don't think 222 00:13:01,559 --> 00:13:04,200 Speaker 1: I'd be happy working under the Trump leadership, and I 223 00:13:04,280 --> 00:13:08,200 Speaker 1: might find other employment. What is the message of your book, Well, 224 00:13:08,240 --> 00:13:11,560 Speaker 1: we need to be more aggressive in different ways. The 225 00:13:11,640 --> 00:13:14,959 Speaker 1: number one problem is we don't have the resources to 226 00:13:15,120 --> 00:13:19,040 Speaker 1: adequately investigate all these cases. That's the principal reason why 227 00:13:19,120 --> 00:13:22,520 Speaker 1: people that Leahmen and other firms were not investigated. They 228 00:13:22,520 --> 00:13:26,320 Speaker 1: weren't just not prosecuted, they weren't investigated. And I think 229 00:13:26,360 --> 00:13:30,160 Speaker 1: we've got to both get more resources and find ways 230 00:13:30,520 --> 00:13:35,200 Speaker 1: to make the corporation much more eager to settle. Today, 231 00:13:35,240 --> 00:13:38,120 Speaker 1: we have a system under which we sort of trade up. 232 00:13:38,200 --> 00:13:40,600 Speaker 1: We start at the lowest level and find the lowest 233 00:13:40,600 --> 00:13:43,520 Speaker 1: person and hope you'll implicate the next person, and we 234 00:13:43,600 --> 00:13:47,240 Speaker 1: climb the ladder with everybody turning on the person above them. 235 00:13:47,360 --> 00:13:50,080 Speaker 1: That works to a degree, but it never gets you 236 00:13:50,120 --> 00:13:52,520 Speaker 1: to the very top. I think one of the things 237 00:13:52,520 --> 00:13:54,400 Speaker 1: we have to do is to start at the top 238 00:13:54,840 --> 00:13:57,520 Speaker 1: and tell the board of directors or its art committee 239 00:13:57,559 --> 00:14:00,280 Speaker 1: that they have to take control of this investor asient 240 00:14:00,320 --> 00:14:03,240 Speaker 1: and its decisions, and we will threaten you with the 241 00:14:03,320 --> 00:14:08,559 Speaker 1: equivalent of a bankrupting penalty unless you identify for us 242 00:14:08,960 --> 00:14:13,440 Speaker 1: who were the responsible officers, going back to identify everyone. 243 00:14:13,880 --> 00:14:16,200 Speaker 1: So I think you have to negotiate from both levels, 244 00:14:16,200 --> 00:14:18,800 Speaker 1: from the top down in the bottom up, trying to 245 00:14:18,840 --> 00:14:23,000 Speaker 1: get the entity to identify their responsible officers. I'm a 246 00:14:23,040 --> 00:14:26,840 Speaker 1: believer that we really have to get individuals held responsible 247 00:14:27,200 --> 00:14:31,120 Speaker 1: and prosecuting. The corporation is a very second bad substitute. 248 00:14:31,840 --> 00:14:35,640 Speaker 1: And you mentioned before the financial crisis, where you know, 249 00:14:35,760 --> 00:14:37,440 Speaker 1: people kept saying and what are we going to see 250 00:14:37,480 --> 00:14:40,600 Speaker 1: people in handcuffs who are really responsible? And we never did. 251 00:14:40,880 --> 00:14:43,600 Speaker 1: Has there been a time in our history when's the 252 00:14:43,680 --> 00:14:47,760 Speaker 1: last time prosecutors have gotten to the top? Go back 253 00:14:47,800 --> 00:14:51,000 Speaker 1: and think of and Run and Worldcome two thousand one 254 00:14:51,080 --> 00:14:54,280 Speaker 1: to two th three. The CEOs of both of those 255 00:14:54,320 --> 00:14:57,080 Speaker 1: firms we went to prison, and the CEO of World 256 00:14:57,160 --> 00:15:00,320 Speaker 1: Come was only released after twenty five years. He was 257 00:15:00,400 --> 00:15:03,560 Speaker 1: terminally ill about a couple of months ago. So we 258 00:15:03,680 --> 00:15:07,520 Speaker 1: have often prosecuted senior executives and around the world common 259 00:15:07,560 --> 00:15:10,560 Speaker 1: it does other companies and their CEO is criminally prosecuted 260 00:15:10,560 --> 00:15:13,400 Speaker 1: in jail. And that's the same thing during the Savings 261 00:15:13,400 --> 00:15:16,280 Speaker 1: Bank crisis. Bank in the nineteen eighties, something like the 262 00:15:16,360 --> 00:15:20,400 Speaker 1: five hundred senior bank officers went to prison for failures 263 00:15:20,400 --> 00:15:23,800 Speaker 1: of small stating banks that took ridiculous risks. And in 264 00:15:23,960 --> 00:15:28,200 Speaker 1: the details, the problem is the very large corporation. It's 265 00:15:28,240 --> 00:15:30,560 Speaker 1: going to be a massive inqueror before you can get 266 00:15:30,600 --> 00:15:35,120 Speaker 1: all the data. Sometimes thousands of people are involved in 267 00:15:35,160 --> 00:15:39,000 Speaker 1: a broad policy, and that is forbidding to the government. 268 00:15:39,040 --> 00:15:41,480 Speaker 1: They don't have the resources, and we've got to find 269 00:15:41,480 --> 00:15:44,560 Speaker 1: ways to give them resources. One of the things I propose, 270 00:15:44,880 --> 00:15:48,040 Speaker 1: which the SEC won't like at all, is the SEC 271 00:15:48,200 --> 00:15:52,480 Speaker 1: is also resource constraint, and sometimes they should hire private 272 00:15:52,560 --> 00:15:56,160 Speaker 1: law firms, very good private law firms on a contingency 273 00:15:56,320 --> 00:16:00,040 Speaker 1: the basis to sue the dependence because the SEC and 274 00:16:00,200 --> 00:16:03,320 Speaker 1: have enough manpower. But if you told a Planets law 275 00:16:03,360 --> 00:16:06,400 Speaker 1: firm that they could handle this case under the direction 276 00:16:06,480 --> 00:16:08,960 Speaker 1: of the SEC und the total control of the SEC, 277 00:16:09,440 --> 00:16:12,360 Speaker 1: and they would get twenty five percent the recovery as 278 00:16:12,400 --> 00:16:15,480 Speaker 1: their contingent fee, I think that would solve some of 279 00:16:15,520 --> 00:16:18,240 Speaker 1: the resource constraints that we are now facing. That's just 280 00:16:18,360 --> 00:16:21,440 Speaker 1: one of the examples. There are others. Thanks Jack. That's 281 00:16:21,480 --> 00:16:25,160 Speaker 1: professor John Coffee at Columbia Law School. His new book 282 00:16:25,200 --> 00:16:29,280 Speaker 1: is entitled Corporate Crime and Punishment, The Crisis of under Enforcement. 283 00:16:30,800 --> 00:16:33,360 Speaker 1: President Trump is facing a battle over a set of 284 00:16:33,400 --> 00:16:38,160 Speaker 1: executive actions he issued on Saturday, providing economic relief measures 285 00:16:38,280 --> 00:16:43,240 Speaker 1: during the pandemic, including weekly federal unemployment payments, student loan relief, 286 00:16:43,320 --> 00:16:46,680 Speaker 1: and efforts to protect tenants from eviction. With those actions, 287 00:16:46,800 --> 00:16:49,920 Speaker 1: is Trump trying to rest core powers away from Congress 288 00:16:50,160 --> 00:16:54,680 Speaker 1: after weeks of discussions over a second pandemic rescue package stalled. 289 00:16:55,200 --> 00:16:58,320 Speaker 1: Joining me is Matt Dalla, a professor at Washington University's 290 00:16:58,400 --> 00:17:04,840 Speaker 1: Graduate School of Political Management. Our President Trump's orders unprecedented 291 00:17:04,840 --> 00:17:09,480 Speaker 1: in our history, Well, they're highly unusual. I wouldn't say 292 00:17:09,520 --> 00:17:12,800 Speaker 1: that they're totally unprecedented in that, you know, Trump himself 293 00:17:12,880 --> 00:17:16,920 Speaker 1: has created a kind of precedent for them. So for example, 294 00:17:17,040 --> 00:17:20,159 Speaker 1: when he is hued at one of his first executive 295 00:17:20,280 --> 00:17:24,200 Speaker 1: orders out of Blue with the travel band early on 296 00:17:24,280 --> 00:17:27,600 Speaker 1: into the so called Muslim Band, that was an executive 297 00:17:27,720 --> 00:17:30,879 Speaker 1: order that actually he had to revise multiple times. And 298 00:17:30,960 --> 00:17:35,160 Speaker 1: that's so chaoff at airports across the country. I think 299 00:17:35,200 --> 00:17:38,240 Speaker 1: that there are also uh, He's also set a precedent 300 00:17:38,359 --> 00:17:44,560 Speaker 1: when is a failure to reach an accommodation with Congress 301 00:17:44,640 --> 00:17:49,000 Speaker 1: on his wall. After weeks of trying to negotiate and 302 00:17:49,040 --> 00:17:53,359 Speaker 1: then failing to reach an agreement, he issued an emergency 303 00:17:53,440 --> 00:17:57,560 Speaker 1: declaration and tried to repurpose the money from the Defense 304 00:17:57,640 --> 00:18:00,399 Speaker 1: Department in other places to build the wall. So, you know, 305 00:18:00,440 --> 00:18:03,520 Speaker 1: even though the circumstances are a bit different, I think 306 00:18:03,640 --> 00:18:07,480 Speaker 1: that what he's done with these four, both memos and 307 00:18:07,520 --> 00:18:10,639 Speaker 1: executive orders, are of a piece of how he has 308 00:18:10,760 --> 00:18:15,199 Speaker 1: issued orders during his administration. But yes, before Trump, I 309 00:18:15,240 --> 00:18:18,640 Speaker 1: think that, you know, as controversial as executive orders has been, 310 00:18:19,080 --> 00:18:22,600 Speaker 1: you know, Trump has has really pushed the boundaries of 311 00:18:22,680 --> 00:18:26,680 Speaker 1: them in ways that are highly a circumspect and unusual, 312 00:18:27,400 --> 00:18:31,240 Speaker 1: and the courts haven't stopped him. The Supreme Court ended 313 00:18:31,320 --> 00:18:35,800 Speaker 1: up approving the final Muslim ban, and and the Supreme 314 00:18:35,800 --> 00:18:39,800 Speaker 1: Court has let Trump continue to use military funds to 315 00:18:39,880 --> 00:18:43,240 Speaker 1: build the wall until that lawsuit reaches them. And we 316 00:18:43,280 --> 00:18:45,880 Speaker 1: don't know what they'll do with that suit. Yeah, so 317 00:18:45,920 --> 00:18:48,080 Speaker 1: we don't we don't know what they're gonna do with 318 00:18:48,240 --> 00:18:51,240 Speaker 1: shoot over the wall and It's true the Supreme Court 319 00:18:51,280 --> 00:18:54,919 Speaker 1: did a pold but it was a much revised band 320 00:18:55,400 --> 00:18:57,800 Speaker 1: and it took quite a long time for it to 321 00:18:57,880 --> 00:18:59,600 Speaker 1: work its way to the courts. And I think the 322 00:18:59,680 --> 00:19:02,480 Speaker 1: Muggle band had to be revised at least a couple 323 00:19:02,520 --> 00:19:06,199 Speaker 1: of times. And remember it also evoked this withering descent 324 00:19:06,359 --> 00:19:10,480 Speaker 1: from Justice Sonia. So the Mayor too, I believe, likened 325 00:19:10,520 --> 00:19:14,000 Speaker 1: it to the treatment of Japanese Americans during World War two, 326 00:19:14,160 --> 00:19:18,600 Speaker 1: sort of a religious discrimination. Letting that stand. So you know, 327 00:19:18,760 --> 00:19:22,760 Speaker 1: these are highly controversial and looks the executive orders having 328 00:19:22,800 --> 00:19:28,359 Speaker 1: controversial in the past. I do think what Trump has done, 329 00:19:29,320 --> 00:19:33,160 Speaker 1: in particular with the executive order about building the wall 330 00:19:33,240 --> 00:19:36,200 Speaker 1: in the national emergency, and also with these recent orders 331 00:19:36,240 --> 00:19:41,000 Speaker 1: and memos, is to start to infringe on the congressional 332 00:19:41,000 --> 00:19:45,080 Speaker 1: power of the purse. And Congress has the constitutional authority 333 00:19:45,240 --> 00:19:50,200 Speaker 1: to appropriate money, and the Trump has begun to, I think, 334 00:19:50,240 --> 00:19:53,639 Speaker 1: infringe on that when he's been unable to reach these fields. 335 00:19:54,240 --> 00:19:58,600 Speaker 1: Has Congress over the decades, not just during Trump, has 336 00:19:58,640 --> 00:20:02,439 Speaker 1: Congress been giving more and more authority to the executive 337 00:20:02,520 --> 00:20:06,760 Speaker 1: by seating more of its authority. Is that how we 338 00:20:06,880 --> 00:20:11,040 Speaker 1: got to this point? Well, yeah, that's a that's a 339 00:20:11,200 --> 00:20:18,119 Speaker 1: big and complicated question. But in an era of nuclear weaponry, 340 00:20:19,080 --> 00:20:22,440 Speaker 1: and after two world wars, and during the Cold War, 341 00:20:22,560 --> 00:20:26,040 Speaker 1: and then after nine eleven, certainly on matters of national 342 00:20:26,080 --> 00:20:29,880 Speaker 1: security and foreign policy, the trend for many decades has 343 00:20:29,920 --> 00:20:33,879 Speaker 1: been to seed to the president a much much greater 344 00:20:34,080 --> 00:20:38,000 Speaker 1: authority and and even to the extent where Congress has 345 00:20:38,080 --> 00:20:42,320 Speaker 1: voted on whether or not authorize a war, it has 346 00:20:42,359 --> 00:20:47,080 Speaker 1: not been a formal declaration of war as the Constitution demands. 347 00:20:47,160 --> 00:20:50,280 Speaker 1: It's been a resolution, you know, a resolution, for example, 348 00:20:50,320 --> 00:20:54,080 Speaker 1: to authorize the Youth of Force Interact in two thousand, 349 00:20:54,320 --> 00:20:58,119 Speaker 1: in two four, after nine eleven, the resolution to authorize 350 00:20:58,119 --> 00:21:00,359 Speaker 1: a Youth of Force against Terrorism, which I believe it's 351 00:21:00,359 --> 00:21:03,679 Speaker 1: still enforced and has been used to justify all sorts 352 00:21:03,680 --> 00:21:07,240 Speaker 1: of military activities overseas. The other point I would make 353 00:21:07,320 --> 00:21:10,880 Speaker 1: is it in a narror of partisan polarization, when Congress 354 00:21:10,920 --> 00:21:15,520 Speaker 1: has been unable to reach deals, and when Congress's approval 355 00:21:15,600 --> 00:21:18,520 Speaker 1: ratings are maybe at fifteen percent or sometimes even in 356 00:21:18,560 --> 00:21:22,680 Speaker 1: the single digits, presidents have, you know, as Barack Obama said, 357 00:21:23,320 --> 00:21:27,400 Speaker 1: after being frustrated repeatedly by Republicans in Congress, he's got 358 00:21:27,400 --> 00:21:29,760 Speaker 1: a phone and a pen, and the pat of course 359 00:21:29,920 --> 00:21:34,919 Speaker 1: refers to using executive orders and other executive actions. So Congress, 360 00:21:34,920 --> 00:21:38,240 Speaker 1: by defaults in a way, by being unable to enact 361 00:21:38,400 --> 00:21:43,120 Speaker 1: or pass major legislation, has seeded I think, uh much 362 00:21:43,160 --> 00:21:48,040 Speaker 1: of it unwittingly seated much of this authority to uh 363 00:21:48,119 --> 00:21:50,720 Speaker 1: to presidents and has opened the door for the kind 364 00:21:50,720 --> 00:21:53,919 Speaker 1: of misshif I think that uh, and and what I 365 00:21:53,920 --> 00:21:58,639 Speaker 1: think many are you unconstitutional actions by President plump. Republican 366 00:21:58,680 --> 00:22:02,399 Speaker 1: Senator Ben Says said the pen and phone theory of 367 00:22:02,640 --> 00:22:07,919 Speaker 1: executive lawmaking is unconstitutional slap, but he was one of 368 00:22:08,160 --> 00:22:12,959 Speaker 1: very few Republicans to criticize this move. And so what 369 00:22:13,000 --> 00:22:16,520 Speaker 1: are the Republicans saying by letting the president go ahead 370 00:22:16,560 --> 00:22:19,960 Speaker 1: with moving military funds to a board a wall, and 371 00:22:20,040 --> 00:22:24,000 Speaker 1: here redirecting funds from FEMA. The first thing is that 372 00:22:24,040 --> 00:22:27,240 Speaker 1: it's the height of hypocrisy, right that the Republicans spent 373 00:22:27,320 --> 00:22:30,600 Speaker 1: many years railing a President Obama for acting like a 374 00:22:30,720 --> 00:22:34,920 Speaker 1: king and issuing these sorts of unconstitutional orders that were 375 00:22:34,920 --> 00:22:39,160 Speaker 1: supposedly destroying freedom and individual liberty. I think what we're 376 00:22:39,160 --> 00:22:42,119 Speaker 1: seeing though, now, of course, is the shoes on the 377 00:22:42,119 --> 00:22:46,159 Speaker 1: other foot, and and in particular, the Republicans are headed 378 00:22:46,160 --> 00:22:50,959 Speaker 1: into a very trust election year. The president is on 379 00:22:51,000 --> 00:22:55,160 Speaker 1: the ballot, and I think most Republicans at the federal 380 00:22:55,280 --> 00:22:58,800 Speaker 1: level feel like politically they have no choice, right that 381 00:22:58,960 --> 00:23:01,600 Speaker 1: that their faith and really the power that they have 382 00:23:01,720 --> 00:23:05,560 Speaker 1: in Washington and in the country. Uh and to point 383 00:23:05,600 --> 00:23:09,240 Speaker 1: Supreme Court justices for example, that all that is riding 384 00:23:09,440 --> 00:23:13,040 Speaker 1: on this election. And you know what, they come out 385 00:23:13,320 --> 00:23:17,840 Speaker 1: like Ben Fast did and start criticizing Trump. I think 386 00:23:17,880 --> 00:23:19,760 Speaker 1: that they worry that the party is going to be 387 00:23:19,760 --> 00:23:23,720 Speaker 1: even further divided and it will depress their votes. Then 388 00:23:23,720 --> 00:23:26,560 Speaker 1: it's Fast. Interestingly, who's up for re election. I believe 389 00:23:26,600 --> 00:23:30,119 Speaker 1: in November he's already won his primer, and you know, 390 00:23:30,200 --> 00:23:33,520 Speaker 1: he doesn't have a even close to competitive race, so 391 00:23:33,880 --> 00:23:36,560 Speaker 1: you know, he's a little bit more politically free to 392 00:23:36,720 --> 00:23:40,200 Speaker 1: issue a criticism. But yeah, I mean Republicans have really 393 00:23:40,480 --> 00:23:42,479 Speaker 1: and you can say that about you know, a hundred 394 00:23:42,480 --> 00:23:45,520 Speaker 1: and one different issues over the past four years where 395 00:23:45,520 --> 00:23:49,040 Speaker 1: Republicans have just kind of washed their hands up. What 396 00:23:49,080 --> 00:23:52,119 Speaker 1: they have said is there are their principles and seated 397 00:23:52,200 --> 00:23:55,320 Speaker 1: the stage and the policies and programs the Trump even 398 00:23:55,320 --> 00:24:00,000 Speaker 1: if it violates their own beliefs, we're President Obama's executive 399 00:24:00,240 --> 00:24:04,600 Speaker 1: orders substantially similar to President Trump's. In other words, did 400 00:24:04,600 --> 00:24:08,840 Speaker 1: he ever divert money in executive orders from one project 401 00:24:08,840 --> 00:24:12,639 Speaker 1: to another, Not that I'm aware of, Not in the 402 00:24:12,680 --> 00:24:16,720 Speaker 1: way that Trump is using. Uh. These orders. Now, you know, 403 00:24:16,760 --> 00:24:22,760 Speaker 1: almost alt executive orders require almost by definition, the use 404 00:24:22,840 --> 00:24:27,960 Speaker 1: of some funds, because of course you're telling federal agency 405 00:24:28,160 --> 00:24:32,120 Speaker 1: to prioritize one issue over another. So, for example, when 406 00:24:32,160 --> 00:24:34,919 Speaker 1: President Obama think his first executive order, one of his 407 00:24:35,040 --> 00:24:39,240 Speaker 1: first was to authorize the closure one ton of obey. 408 00:24:39,480 --> 00:24:44,600 Speaker 1: Now that never happened, but certainly there was some funding involved, right, 409 00:24:44,640 --> 00:24:47,560 Speaker 1: and getting the federal government to focus on that project. 410 00:24:47,800 --> 00:24:51,960 Speaker 1: Same thing one President Obama issued the DOCTA order. You're 411 00:24:52,000 --> 00:24:57,480 Speaker 1: telling the immigration services in the federal government to focus 412 00:24:57,520 --> 00:25:01,240 Speaker 1: on particular priorities and find being closed as a result 413 00:25:01,320 --> 00:25:05,639 Speaker 1: of that. What I think makes Trump's orders different is that, uh, 414 00:25:05,680 --> 00:25:09,440 Speaker 1: and again with both the border wall and the avlates 415 00:25:09,560 --> 00:25:13,600 Speaker 1: executive orders, is that after leaks of negotiations with Congress 416 00:25:13,640 --> 00:25:16,639 Speaker 1: then failed over the power of the purse, which is 417 00:25:16,880 --> 00:25:22,000 Speaker 1: constitutional powers that Congress has, Trump has issued an order 418 00:25:22,040 --> 00:25:26,560 Speaker 1: to circumvent that and to change vending policy, and to 419 00:25:26,640 --> 00:25:31,680 Speaker 1: appropriate essentially new funds for purposes not authorized by Congress, 420 00:25:31,760 --> 00:25:35,640 Speaker 1: and also in this case, to change tax law unilaterally 421 00:25:36,080 --> 00:25:39,359 Speaker 1: and in a way not authorized by Congress. So, you know, 422 00:25:39,440 --> 00:25:42,200 Speaker 1: these are I think there's a reason why so many 423 00:25:42,280 --> 00:25:46,760 Speaker 1: constitutional scholars are looking at this and saying that this 424 00:25:46,880 --> 00:25:51,000 Speaker 1: is dubious. Transactions are dubious at best. And you know 425 00:25:51,080 --> 00:25:55,080 Speaker 1: President Obama is I would say most aggressive executive orders 426 00:25:55,080 --> 00:25:58,000 Speaker 1: had to do with immigration, one of them DOCTA for 427 00:25:58,280 --> 00:26:02,639 Speaker 1: the children who came to the country as undocumented immigrants, 428 00:26:02,680 --> 00:26:05,280 Speaker 1: and then the other with a more sweeping executive order. 429 00:26:05,520 --> 00:26:08,480 Speaker 1: One of those withstood scrutiny in the courts, the other 430 00:26:08,600 --> 00:26:11,720 Speaker 1: did not. But I don't think President Obama or other 431 00:26:11,840 --> 00:26:16,760 Speaker 1: presidents have explicitly with their orders tried to stop invent 432 00:26:17,400 --> 00:26:21,040 Speaker 1: the power of the person that Congress enjoyed. Well, when 433 00:26:21,040 --> 00:26:24,960 Speaker 1: he was announcing these orders, President Trump said basically, well, 434 00:26:24,960 --> 00:26:27,000 Speaker 1: we're going to be sued on this. I think the 435 00:26:27,080 --> 00:26:31,520 Speaker 1: question is who would sue to stop these Well, yeah, 436 00:26:31,520 --> 00:26:33,679 Speaker 1: that's what's That's always the question in these things, right, 437 00:26:33,680 --> 00:26:35,880 Speaker 1: who's going to do the stopping? And also how long 438 00:26:35,920 --> 00:26:38,320 Speaker 1: will the stop and take? Even if the Democrats and 439 00:26:38,359 --> 00:26:43,119 Speaker 1: Congress don't to. It's conceivable that some state and state 440 00:26:43,200 --> 00:26:48,359 Speaker 1: attorney general will to because in this unemployment order or 441 00:26:48,440 --> 00:26:51,879 Speaker 1: memo that Trump has issued, he has requiring the states 442 00:26:51,880 --> 00:26:54,720 Speaker 1: I think, to shift in a hundred dollars to make 443 00:26:54,760 --> 00:26:57,199 Speaker 1: it to four hundred dollars a week for people who 444 00:26:57,240 --> 00:26:59,639 Speaker 1: are unemployment. And the States are saying, look, you know, 445 00:26:59,680 --> 00:27:02,639 Speaker 1: work and too bankrupt. We can't take on this added 446 00:27:02,680 --> 00:27:04,879 Speaker 1: expenditure at a time when we're going to have to 447 00:27:04,920 --> 00:27:07,520 Speaker 1: make these major cuts. So you could see the states doing. 448 00:27:07,600 --> 00:27:12,080 Speaker 1: You could see nonprofit organizations that um in part to 449 00:27:12,119 --> 00:27:15,280 Speaker 1: send Congress or or see their jobs. Is sort of 450 00:27:15,320 --> 00:27:19,720 Speaker 1: promoting the separation of powers. Trying to sue and the course, 451 00:27:19,720 --> 00:27:22,760 Speaker 1: for course tapped aside who has standing, just as the 452 00:27:22,800 --> 00:27:27,320 Speaker 1: court had to decide this question in the emoluments cases 453 00:27:27,440 --> 00:27:31,520 Speaker 1: where President Trump was being sued about his properties and 454 00:27:31,600 --> 00:27:38,520 Speaker 1: whether his government was unconstitutionally essentially accepting payments from foreign entities. 455 00:27:38,960 --> 00:27:41,959 Speaker 1: The problem that that I think the Democrats have, of course, 456 00:27:42,000 --> 00:27:45,639 Speaker 1: and that's been true with any number of cases with 457 00:27:45,760 --> 00:27:48,679 Speaker 1: Trump visit. You know, the courses we've seen are slow, 458 00:27:49,400 --> 00:27:52,920 Speaker 1: and they're often divided, and even in this case of 459 00:27:53,040 --> 00:27:57,199 Speaker 1: some tastes which have still never been revealed. So you know, 460 00:27:57,240 --> 00:28:02,000 Speaker 1: we see the limits, uh, the from both Congress and 461 00:28:02,160 --> 00:28:05,040 Speaker 1: the courts, I think in uh in this instance as well. 462 00:28:05,359 --> 00:28:08,240 Speaker 1: At a press conference yesterday, Trump said that he was 463 00:28:08,280 --> 00:28:12,600 Speaker 1: going to issue an executive order to ensure that insurance 464 00:28:12,680 --> 00:28:16,480 Speaker 1: covers pre existing conditions, even though it was pointed out 465 00:28:16,560 --> 00:28:19,640 Speaker 1: that that is already part of the law known as 466 00:28:19,640 --> 00:28:23,960 Speaker 1: Obamacare that his administration is fighting. So I'm wondering if 467 00:28:24,000 --> 00:28:27,320 Speaker 1: all these things are just for show and he doesn't 468 00:28:27,320 --> 00:28:29,840 Speaker 1: really care if it goes through or not. Yeah, well, 469 00:28:29,920 --> 00:28:32,000 Speaker 1: let's yeah, I mean, let's just kind of cut to 470 00:28:32,080 --> 00:28:36,920 Speaker 1: the chase, right. Um, Both that order right that he's 471 00:28:36,920 --> 00:28:39,280 Speaker 1: going to use to protect pre existing conditions, and the 472 00:28:39,360 --> 00:28:44,360 Speaker 1: other orders in demos about payroll taxes and unemployee insurance. 473 00:28:44,760 --> 00:28:48,560 Speaker 1: I mean, these are essentially efforts to call on people 474 00:28:49,000 --> 00:28:52,600 Speaker 1: and to think that he's actually doing something, um, and 475 00:28:52,920 --> 00:28:57,960 Speaker 1: to create the illusion that he is taking action now 476 00:28:58,200 --> 00:29:03,520 Speaker 1: in the preexisting order prexisting conditions. Um. I mean it's 477 00:29:03,520 --> 00:29:06,800 Speaker 1: absurd on its face because he aspects his entire presidency 478 00:29:06,960 --> 00:29:12,920 Speaker 1: basically trying to abolish Obamacare and abolish that provision, which 479 00:29:12,960 --> 00:29:16,000 Speaker 1: is at the heart of Obamacare. And you know, remember 480 00:29:16,040 --> 00:29:19,880 Speaker 1: he tried a couple of times through Congress to um 481 00:29:20,280 --> 00:29:23,800 Speaker 1: to enact a law or well basically told defined and 482 00:29:23,880 --> 00:29:29,360 Speaker 1: abolish Obamacare and to abolish the prexisting conditions. And his 483 00:29:29,440 --> 00:29:34,120 Speaker 1: administration is still supporting a lawsuits uh, that would do 484 00:29:34,520 --> 00:29:39,600 Speaker 1: exactly that. And so that executive order is really I think, um, 485 00:29:39,680 --> 00:29:42,280 Speaker 1: you know, it's gonna affect to reality. Uh. And then 486 00:29:42,280 --> 00:29:45,720 Speaker 1: on these other orders, yeah, I mean this unemployment bump 487 00:29:45,880 --> 00:29:49,120 Speaker 1: that he says that he's going to give, Um, the 488 00:29:49,200 --> 00:29:53,160 Speaker 1: states are already saying it's unworkable. And apparently what he 489 00:29:53,160 --> 00:29:55,040 Speaker 1: has done is he's trying to create a new kind 490 00:29:55,040 --> 00:29:59,200 Speaker 1: of program. The funds apparently would only laugh for five 491 00:29:59,280 --> 00:30:01,880 Speaker 1: weeks for people. Well, um, but it may take weeks 492 00:30:01,880 --> 00:30:06,400 Speaker 1: for months to kind of stand up the program. And uh. 493 00:30:06,480 --> 00:30:08,800 Speaker 1: And the states, I think that it's just for a 494 00:30:08,800 --> 00:30:11,640 Speaker 1: lot of states at least, think that it's just unworkable, right, 495 00:30:11,680 --> 00:30:16,760 Speaker 1: that it's not it's not feasible. Uh. And and so 496 00:30:17,000 --> 00:30:20,800 Speaker 1: it is unclear whether any money that he says he's 497 00:30:20,840 --> 00:30:23,920 Speaker 1: gonna give to people are ever going to reach their hands. 498 00:30:23,920 --> 00:30:26,239 Speaker 1: But it is a way of trying to cover up 499 00:30:26,360 --> 00:30:29,960 Speaker 1: the reality that you know, Democrats have to fill in 500 00:30:30,040 --> 00:30:33,760 Speaker 1: the House to continue the six hundred dollar a week 501 00:30:33,920 --> 00:30:38,959 Speaker 1: supplemental unemployment insurance for people across the country hit by 502 00:30:39,000 --> 00:30:43,280 Speaker 1: the pandemic UM. The Republicans and Democrats failed to reach 503 00:30:43,320 --> 00:30:46,320 Speaker 1: an agreement. The Senate Republicans couldn't past their own bill, 504 00:30:46,800 --> 00:30:48,680 Speaker 1: and so Trump, I think, is trying to kind of 505 00:30:48,720 --> 00:30:51,960 Speaker 1: cover up for that and cover up for this, you know, 506 00:30:52,040 --> 00:30:57,600 Speaker 1: real political weakness that he has heading into the fall elections. Okay, cool, Well, 507 00:30:57,640 --> 00:31:00,880 Speaker 1: before I let you go, what are executive order is 508 00:31:00,920 --> 00:31:03,320 Speaker 1: supposed to be used for? We've seen a lot of 509 00:31:03,400 --> 00:31:05,640 Speaker 1: misuse over the years. What are they supposed to be 510 00:31:05,720 --> 00:31:11,120 Speaker 1: used for? Well, look, there's no one definition. UM. Historically 511 00:31:11,760 --> 00:31:19,520 Speaker 1: they have been used for issues such as promoting UM 512 00:31:20,040 --> 00:31:26,920 Speaker 1: uh uh anti discrimination, putting an anti discrimination clauses, fighting 513 00:31:27,000 --> 00:31:33,640 Speaker 1: racial discrimination in federal contracting UM, setting up for example, 514 00:31:33,680 --> 00:31:39,360 Speaker 1: the Fair Employment Practices a Commission during World War Two 515 00:31:39,760 --> 00:31:44,040 Speaker 1: for promoting a formative action UH and empty in the 516 00:31:44,080 --> 00:31:49,160 Speaker 1: nineteen sixties, in particular with respect to federal contracting and 517 00:31:49,240 --> 00:31:54,840 Speaker 1: federal hiring. There has been also executive orders abridging civil liberties, 518 00:31:55,600 --> 00:32:00,560 Speaker 1: directing creating security measures in the Departments, State, and the 519 00:32:00,680 --> 00:32:06,800 Speaker 1: National Security apparatus. Uh. We have seen executive orders around 520 00:32:06,800 --> 00:32:12,880 Speaker 1: public health, so stem cells research, which was a controversial issue, 521 00:32:12,920 --> 00:32:15,240 Speaker 1: and remember President George W. Bush I think it was 522 00:32:15,280 --> 00:32:17,720 Speaker 1: the first order he signed, or one of them, executive 523 00:32:17,800 --> 00:32:23,000 Speaker 1: orders limiting stem cell research, and Barack Obama listed those 524 00:32:23,040 --> 00:32:25,760 Speaker 1: restrictions as soon as he got in the office. They 525 00:32:25,800 --> 00:32:29,760 Speaker 1: are also generally a way the I mean more broadly, 526 00:32:29,880 --> 00:32:32,840 Speaker 1: there's a way that the president can use these orders 527 00:32:32,880 --> 00:32:37,560 Speaker 1: to attempt to tell the federal agencies and federal bureaucracy 528 00:32:37,840 --> 00:32:42,840 Speaker 1: that the president runs uh how to prioritize the works 529 00:32:42,840 --> 00:32:47,080 Speaker 1: that they do, and also how to interpret the laws 530 00:32:47,120 --> 00:32:50,960 Speaker 1: that Congress has passed. So there are but there are 531 00:32:51,000 --> 00:32:54,080 Speaker 1: also significant limits on them. And what we have seen, 532 00:32:55,280 --> 00:32:58,640 Speaker 1: UH is that executive orders are also pretty easy once 533 00:32:58,680 --> 00:33:01,640 Speaker 1: the other party gets in the past to overturn unless 534 00:33:01,640 --> 00:33:07,160 Speaker 1: they're very popular. So President Obama used an executive order 535 00:33:07,160 --> 00:33:12,080 Speaker 1: to create the h Deferred Action program for Dreamers, and 536 00:33:12,480 --> 00:33:16,640 Speaker 1: President Trump presended that So, um, you know, they tend 537 00:33:16,680 --> 00:33:20,800 Speaker 1: to lead to a far more chaostic approach to governing, 538 00:33:21,200 --> 00:33:25,320 Speaker 1: and they tend to UH and and they're also vulnerable 539 00:33:25,360 --> 00:33:29,280 Speaker 1: to being overturned by opponents once they get in the office. 540 00:33:29,720 --> 00:33:34,080 Speaker 1: That's Matt Dalek of Washington University's Graduate School of Political Management. 541 00:33:34,520 --> 00:33:36,760 Speaker 1: And that's it for this edition of the Bloomberg Law Show. 542 00:33:36,960 --> 00:33:40,040 Speaker 1: I'm June Grasso. Thanks so much for listening. Catch us 543 00:33:40,080 --> 00:33:42,880 Speaker 1: every weeknight at ten pm Eastern on Bloomberg Radio.