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Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio.

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Speaker 1: It's the second racial discrimination lawsuit filed against McDonald's this year.

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Speaker 1: More than fifty black former franchise e say they were

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Speaker 1: driven out of business after being pushed by the company

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Speaker 1: to set up shop in crime ridden inner city and

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Speaker 1: urban areas with low volume sales and high security and

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Speaker 1: insurance costs, and denied the financial help extended to white franchisees.

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Speaker 1: Joining me is Eric Tallely, a professor at Columbia Law School.

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Speaker 1: Start by telling us about the claims of the black

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Speaker 1: McDonald's franchise Ease Sure the franchisees has sort of teamed

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Speaker 1: together to bring forward two types of claims. One of

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Speaker 1: the discrimination claims uh and the other is just an

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Speaker 1: ordinary contract claim And they have some similarities of one

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Speaker 1: another and some differences with one another. But the discrimination

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Speaker 1: claim is based on one of the very oldest of

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Speaker 1: the nation statutes in the United States, who's been around

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Speaker 1: since eighteen sixty six. How do they claim they were

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Speaker 1: discriminated against? Location? Location? Location? Is that their main claim

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Speaker 1: that they weren't given the good locations. That's part of

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Speaker 1: their claims it's a grab bag of a bunch of

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Speaker 1: different claims, but one of the claims that the planets

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Speaker 1: are making here was that they were systematically speared to

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Speaker 1: some of the least profitable, highest cost locations that were

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Speaker 1: in either a dangerous or rundown neighborhoods and weren't really

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Speaker 1: given the opportunities to take on the more the more

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Speaker 1: lucrative sorts of franchise that that that were standalone franchisees

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Speaker 1: uh and more well healed parts of town. That's only

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Speaker 1: part of what the claims were, however, because there were

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Speaker 1: additional claims that are related to how McDonald's engaged in

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Speaker 1: routine or supposedly routine inspections of the franchise establishments, whether

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Speaker 1: they graded them more harshly uh than they would have

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Speaker 1: graded wide owned establishment, whether the franchisees were sort of

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Speaker 1: forced by the franchises without really examining but with the

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Speaker 1: nature of the business, and sometimes forced to sell businesses

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Speaker 1: that weren't doing as well without fully betting the market.

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Speaker 1: So much of this is location, but I think a

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Speaker 1: lot of it is also the nature of the relationship,

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Speaker 1: the nature of the treatment that the franchise e's alleged

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Speaker 1: that they had at the hands of McDonald's relative to

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Speaker 1: what white branches were getting. So what kind of proof

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Speaker 1: might the plaintiffs be offering. I take it there'll be

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Speaker 1: offering statistics about, you know, how the black franchises have

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Speaker 1: been shrinking for years. What other kinds of things would

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Speaker 1: they offer. Yeah, this is going to be really depend

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Speaker 1: on the nature of which type of claim they're making.

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Speaker 1: That discrimination claim they're making is a little bit tricky.

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Speaker 1: It not only has our short statute of limitations and

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Speaker 1: only last for four years, which means some of those

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Speaker 1: long standing patterns aren't necessarily going to be addressable, but

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Speaker 1: the discriminations that you also requires that the plain is

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Speaker 1: both demonstrate and plead that there was actually intent by

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Speaker 1: McDonald's to discriminate against them, not just that their protocols,

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Speaker 1: by whatever measure, led to unequal opportunities, but that McDonald's

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Speaker 1: intended to discriminate against them. And so that's going to

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Speaker 1: be a limitation on the discrimination sort of claim. It's

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Speaker 1: not going to be enough merely to show that the

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Speaker 1: number of franchisees that were black declined either relative to

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Speaker 1: the total number of stores or or relative to the

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Speaker 1: total number of other franchisees. The other thing is going

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Speaker 1: to be a challenge for the plaint is to demonstrate

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Speaker 1: the discrimination claim. They've got to be able to demonstrate

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Speaker 1: that their race was what lawyers will call it but

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Speaker 1: or cause of suffering loss. In other words, if they

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Speaker 1: were not black, they would not have suffered the losses

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Speaker 1: that they are alleging here. And this is some aspects

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Speaker 1: of the case that really have changed quite recently due

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Speaker 1: to recent Supreme Court opinion that put this higher burden

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Speaker 1: of demonstrating that the discrimination caused the bad outcome. McDonald's,

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Speaker 1: no doubt, in this part of the case, is going

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Speaker 1: to say that listen, we were, you know, in a

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Speaker 1: contract relationship with entrepreneurs who knew that they were taking

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Speaker 1: on risks, and McDonald's will probably argue that they if

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Speaker 1: the plants suffered losses, those losses were due to a

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Speaker 1: whole host of causes that could also include business decisions

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Speaker 1: made by the franchise themselves. And the key thing to

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Speaker 1: note about this is that ties will tend to favor

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Speaker 1: the defendant and McDonald's in this case. So the causation

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Speaker 1: element of the of the case, I think it's going

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Speaker 1: to be a little bit of challenging from a plaintiffs

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Speaker 1: perspective when it comes to the discrimination play. Their argument

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Speaker 1: maybe a little bit less problematic and a little bit

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Speaker 1: while promising when it comes to their straight out claims

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Speaker 1: that McDonald's just didn't live up to what they said

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Speaker 1: they were going to do in their franchise agreement. And

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Speaker 1: my guess is the planets are going to push really

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Speaker 1: hard on this as well. One thing to note is

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Speaker 1: that you know, McDonald's is perfectly free in their franchise

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Speaker 1: contracts to promise more than what they would be obliged

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Speaker 1: to do under antidiscrimination law. And and here that's one

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Speaker 1: of the elements of what the plaintiffs are claiming that

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Speaker 1: if you if you look at the franchise agreement the

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Speaker 1: McDonald's signed with these franchise vs, that's exactly what McDonald's did.

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Speaker 1: That they had general provisions and these contracts and said

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Speaker 1: that they were going to make franchises available and business

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Speaker 1: opportunities available to their franchisees in ways that we're not

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Speaker 1: going to discriminate amongst the different franchisees, that they were

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Speaker 1: going to be reasonable in the way that they inspected

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Speaker 1: and evaluated the McDonald's franchises, and one of the big planes,

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Speaker 1: particularly of the franchisees who were a long time franchise these,

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Speaker 1: is that McDonald's just didn't live up to its own

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Speaker 1: contractual obligations. And they said that they can demonstrate that.

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Speaker 1: That becomes somewhat of a less challenging argument to make

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Speaker 1: when it gets into litigation. McDonald's said that while it

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Speaker 1: may recommend locations, ultimately it's up to the franchise eas

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Speaker 1: and that the company has sold high performing franchises to

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Speaker 1: black franchisees. So how does McDonald's proved the first part

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Speaker 1: of that? So this is going to be a big

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Speaker 1: factual aspect of the case to make it all the

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Speaker 1: way to litigation. And all the different plaints may not

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Speaker 1: be sitting in exactly the same position on this, but

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Speaker 1: U McDonald's in in defending its actions, whether it's the

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Speaker 1: discrimination charge or the preaching contract charge, is going to

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Speaker 1: have to demonstrate or at least, you know, offer proof

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Speaker 1: that listen, we were offering analogous forms of opportunities to

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Speaker 1: all of our different franchisees about expansion, about buying up

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Speaker 1: other stores. The plaintiffs are claiming that that's just not

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Speaker 1: true that McDonald's didn't offer black franchise these the same

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Speaker 1: opportunities that were being offered to white cranchees, that they

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Speaker 1: weren't being inspected and reviewed under the things that criteria. Obviously,

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Speaker 1: it's a very factually detailed set of allegations, and both

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Speaker 1: parties I would expect, are going to come out of

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Speaker 1: the box with fairly detailed accounts. Some of this may

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Speaker 1: actually devolve into sort of statistical accounts which you can

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Speaker 1: see a little bit already in the complaint about to

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Speaker 1: what extent were those opportunities. Even if one or two

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Speaker 1: lucrative opportunities were offered to the black franchisees, that still

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Speaker 1: could mask a more systematic system that had tended to

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Speaker 1: deprive black franchisees from those sorts of opportunities and end

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Speaker 1: a lot of this may end up coming down to

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Speaker 1: making not just one or two examples in our but

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Speaker 1: trying to establish overall patterns in in one direction or another.

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Speaker 1: So this sounds like an uphill battle for the franchisees

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Speaker 1: as far as this lawsuit is concerned. Well, it's an

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Speaker 1: uphill battle in some respects, But you have to remember

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Speaker 1: that you know the plaintiffs are essentially litigating in two courts,

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Speaker 1: one of the legal courts, and the other is the

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Speaker 1: courts of public opinion. We are right now in a

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Speaker 1: moment where economic inequality and institutionalized racism are are hugely

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Speaker 1: salient political and economic issues, more so than they've been

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Speaker 1: maybe even during the last half century. And and McDonald's

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Speaker 1: hasn't been a by standard to this either. It's staked

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Speaker 1: out a very bold and public position on black lives

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Speaker 1: matter at the very end of July, including an acknowledgement

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Speaker 1: that you know, some people in the McDonald's system feel

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Speaker 1: like they haven't been given a fair opportunity, and they

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Speaker 1: even articulated a plan for trying to bring greater diversity

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Speaker 1: to their community franchise, and so you know, on some level,

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Speaker 1: this lawsuit is times at an interesting moment because it's

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Speaker 1: calling on McDonald's not just to talk to talk, but

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Speaker 1: also to walk the walk. And the optics of defending

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Speaker 1: the lawsuits might make it look like McDonald's is running

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Speaker 1: the risk of looking sir disingenuous about their stated public commitment.

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Speaker 1: And so the simultaneous case, I guess, in the court

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Speaker 1: of public opinion is something that you know on some

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Speaker 1: level is independent of the legal case, but in many

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Speaker 1: ways is highly intertwined with the legal case. On top

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Speaker 1: of that, it's probably important to note that McDonald's is

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Speaker 1: already employed into pretty messy lotagious matters involving the departure

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Speaker 1: of their chief executive and a high profile discrimination suit

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Speaker 1: brought by senior executives in the organization, which in many

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Speaker 1: ways helped contribute to this one. So while I would

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Speaker 1: say that certain aspects of the legal case when viewed

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Speaker 1: alone are a bit challenging, they also intertwined with some

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Speaker 1: of the public relations aspects and the optics aspects of

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Speaker 1: the case, and that could give rise to more leverage

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Speaker 1: than you might otherwise expect if you were just analyzing

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Speaker 1: the merits of the legal case. Alow, this is at

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Speaker 1: least the second racial discrimination lawsuit filed against McDonald's this year.

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Speaker 1: Would that seem to lead to McDonald's wanting to settle

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Speaker 1: these out of court before these allegations become wider known

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Speaker 1: at a trial. Probably. So. One thing that is definitely

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Speaker 1: true is that once allegations facts come out in one trial,

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Speaker 1: they can easily be picked up by other litigants and

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Speaker 1: other trials. One does get the sense that McDonald's has

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Speaker 1: been negotiating pretty heavily with some of the plaintiffs in

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Speaker 1: this case to see if they can settle before that

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Speaker 1: the complaints was filed. That evidently failed. But it's certainly

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Speaker 1: logical to assume that those settlement efforts are going to

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Speaker 1: be ongoing throughout the discovery phase of this particular lawsuit.

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Speaker 1: And you know, many items of litigation end up, you know,

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Speaker 1: ending in settlement as well. Um, And so it's no

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Speaker 1: doubt the case that McDonald's mindfulness fact that some of

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Speaker 1: the allegations in the various lawsuits are common to one another,

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Speaker 1: and they may not be in the best position to

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Speaker 1: try to defend Adam only every single one of them,

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Speaker 1: and settlement may be an attractive option. That's not to

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Speaker 1: say that that McDonald's doesn't have reasonable legal argument at

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Speaker 1: its disposal. It's just that the legal arguments that it

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Speaker 1: has is just one part of the picture. And another

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Speaker 1: part of the case that I expect is going to

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Speaker 1: come out a little bit um is that McDonald's may argue,

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Speaker 1: you know, hey, listen, why would we deliberately go about

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Speaker 1: setting up franchisees that were destined to fail. Why would

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Speaker 1: that ever be in our interest? Our rents are usually

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Speaker 1: predicated against the revenues that are generated by these restaurants,

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Speaker 1: and so it just wouldn't wouldn't make any economic sense

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Speaker 1: for us to put franchise's deliberately in a position where

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Speaker 1: they're going to fail, and that that's got some plausibility

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Speaker 1: to it. On the other hand, I would expect that

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Speaker 1: the plans are going to point out that three quarters

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Speaker 1: of the value of the assets that McDonald's is a

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Speaker 1: corporation has is its land, and if that real estate

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Speaker 1: is appreciating, then the key way that you make money

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Speaker 1: off of it is really just to hold on to

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Speaker 1: that real estate, even if you toy around with franchise

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Speaker 1: these that may or may not be successful in their

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Speaker 1: own businesses, particularly in poorer neighborhoods where recent tax incentives

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Speaker 1: such as enterprise zones have given rise to some property appreciation,

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Speaker 1: then the value of just holding onto the property may

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Speaker 1: end up swamping a lot of the value associated with

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Speaker 1: whether you've lived up to your obligations to your franchise

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Speaker 1: these or not. McDonald's has, of course, access to incredible

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Speaker 1: legal resources. Is it possible that they could just sort

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Speaker 1: of overwhelm the plaintiffs in this case, It's certainly possible,

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Speaker 1: and during the last year that is not a fun

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Speaker 1: familiar story where a well capitalized defendant ends up overwhelming

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Speaker 1: plaintiffs in that case that regardless of its merits the

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Speaker 1: plaintiffs and up deciding to draw one of the things. However,

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Speaker 1: that's worth noting is certainly in the last twenty years,

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Speaker 1: maybe the last fifteen years, an entire industry of litigation

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Speaker 1: finance to sprawn up so as to bank roll some

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Speaker 1: of these plaintiffs who would have otherwise ran out of

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Speaker 1: money into the extent that there is a potentially viable

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Speaker 1: legal claim there. They be, combined with some of the

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Speaker 1: public relations issues and the willingness of the Donalds to

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Speaker 1: pay to have something go away, may end up doing

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Speaker 1: some of those fires in ways that simply weren't possible

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Speaker 1: twenty years ago on the litigation finance industry was at

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Speaker 1: it's very infancy and in some cases not even legal,

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Speaker 1: and a lot of a lot of jurisdiction. So uh

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Speaker 1: so uh this this idea of the you know, of

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Speaker 1: the of the well bankrolls corporate defendant basic basically being

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Speaker 1: able to spend plaintiffs into the ground. It still exists,

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Speaker 1: but it's probably more moderated thing used to be because

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Speaker 1: of the availability of litigation finance. Thanks Eric. That's Eric

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Speaker 1: Tally of Columbia Law School. The legal saga of Michael

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Speaker 1: Flynn will continue. The DC Federal Court of Appeals has

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Speaker 1: ruled that the Justice Department and the former Trump National

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Speaker 1: Security advisor cannot force a trial judge to dismiss the

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Speaker 1: criminal case against him without a hearing. The aid to

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Speaker 1: two decision was the result of a rare ombank hearing

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Speaker 1: after a three judge panel ruled in favor of Flynn

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Speaker 1: in June. This ruling is the latest development in a

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Speaker 1: legal case that has taken unusual twists and turns, leading

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Speaker 1: to the latest separation of powers fight between a veteran

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Speaker 1: federal judge and the Trump administration. Joining me as former

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Speaker 1: federal prosecutor Robert Mints a partner McCarter and English So Bob,

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Speaker 1: what was the reason the court gave for reversing the

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Speaker 1: decision of the three judge panel. The Federal Appeals Court

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Speaker 1: rejected a bid by Michael Flynn, President trump first national

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Speaker 1: security adviser to forced the immediate dismissal of the criminal

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Speaker 1: case and which he's been convicted of lying to FBI agents.

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Speaker 1: The appeals court judges decided that Flynn's request to have

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Speaker 1: the case immediately dismissed was premature since the U. S.

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Speaker 1: District Court judge had not yet ruled on the dismissal

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Speaker 1: request by the Department of Justice. The Court of Appeals

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Speaker 1: also rejected Flynn's request that the judge be removed from

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Speaker 1: the case, arguing that the trial judge was biased against

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Speaker 1: him and he was entitled to a different judge to

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Speaker 1: make a determination after sentencing. The DC Court confirmed what

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Speaker 1: many legal experts have been saying that this was an

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Speaker 1: unprecedented move by Flynn, saying that Flynn has not cited

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Speaker 1: any case in which our court or any court issued

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Speaker 1: the writ to compel a district court to decide an

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Speaker 1: undecided motion in a particular way. Does that put into

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Speaker 1: context how odd this motion was at this time? Yes,

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Speaker 1: this whole case has been extremely unusual for whole variety

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Speaker 1: of reasons. And what it really turns on is this

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Speaker 1: question of who has the right to determine whether a

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Speaker 1: case should be dismissed. Essentially, the executive branch clearly has

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Speaker 1: the authority to commence or to continue a prosecution. That's

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Speaker 1: something that is up to the Department of Justice. But

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Speaker 1: real four yate A requires leave of court before a

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Speaker 1: case is dismissed. And that's exactly what this entire controversy

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Speaker 1: is about. What does leave of court means? Does active

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Speaker 1: the trial judge the authority to probe the Department of

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Speaker 1: Justice for the reasons that they are dismissing a case,

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Speaker 1: or does the trial judge that we have to accept

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Speaker 1: the dismissal at face value and dismissed the case regardless

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Speaker 1: of any concerns that the trialing judge may have about

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Speaker 1: the motivation behind the Department of Justice's decisions. What were

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Speaker 1: the dissents by two Republican appointees based on the on

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Speaker 1: Bond decision, which is a decision by all ten active

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Speaker 1: circuit judges that were not refused from the case, lie

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Speaker 1: up against the two dissenting Republican appointees. Those two judges

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Speaker 1: in May had formed the majority of a three judge

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Speaker 1: panel that initially ruled in flann favor, and the first

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Speaker 1: ruling by the three judge panel, the two judges in

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Speaker 1: the majority found that the trial judge did not have

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Speaker 1: the authority to question the decision by the Department of

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Speaker 1: Justice to dismiss the case. In the opinion written by

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Speaker 1: the two to one panel decision, Judge Rao had argued

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Speaker 1: that there was no prosecution left here because there was

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Speaker 1: no prosecutor. Essentially, that it is a Department of Justice

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Speaker 1: is loan authority to decide whether to prosecute a case,

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Speaker 1: and if they, for whatever reason, decide not to continue

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Speaker 1: that prosecution, there is no prosecutor to argue the government

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Speaker 1: side of the case, and therefore the case had to

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Speaker 1: be dismissed. But what's really underlying all of this is

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Speaker 1: not so much the final ruling. In other words, the

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Speaker 1: question of whether or not the prosecution will continue, because

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Speaker 1: it's unlikely that it will. What this hearing is really

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Speaker 1: about is the question of whether or not the trial

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Speaker 1: judge gets to probe into the reasoning behind the Department

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Speaker 1: of Justice and decision to drop this case. Essentially, what

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Speaker 1: the dissenting judges are arguing is that the trial judge

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Speaker 1: does not have the authority to probe into the internal

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Speaker 1: decision making by the Department of Justice, that that's an

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Speaker 1: executive department decision and that what the court here is

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Speaker 1: doing is usurping the authority of the Executive Department to

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Speaker 1: decide whether or not to prosecute criminal cases. This is

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Speaker 1: obviously a victory for Judge m It's Sullivan, but how

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Speaker 1: much of a victory? And what I mean by that is,

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Speaker 1: do the d C. Circuit Court define what kind of

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Speaker 1: hearing he can hold? Can he actually dig into the

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Speaker 1: administration's motives for dismissing the case against Flynn. What this

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Speaker 1: ruling does is it sends the case back for consideration

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Speaker 1: by Judge Sullivan. Judge Sullivan could dismiss the case as requested,

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Speaker 1: or request that the case moved to sentencing and have

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Speaker 1: some kind of hearing to determine whether or not the

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Speaker 1: Department of Justice was correct in making a decision to

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Speaker 1: drop this case. But the Court of Appeals also sent

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Speaker 1: a very clear signal to the trial judge that they

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Speaker 1: do not expect this hearing to turn into any kind

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Speaker 1: of a circus. And in fact, the lawyer who was

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Speaker 1: representing Judge Sullivan before the full Court of Appeals actually

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Speaker 1: represented during the argument that there will be no discovery

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Speaker 1: from the Department of Justice during any kind of sharing.

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Speaker 1: There will be no evidentiary hearing, and in fact, she

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Speaker 1: argued that the judge may well decide to dismiss this

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Speaker 1: case after the party's simply filed briefs. The argument that

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Speaker 1: was essentially made on behalf of Judge Sullivan was that

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Speaker 1: it was premature at this point for the Court of

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Speaker 1: Appeals to force him to dismiss the case since he

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Speaker 1: had not yet even ruled on the govern meants motion

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Speaker 1: to dismiss. So I've explained the motion from man Dams

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Speaker 1: and what the d C Circuit ruled about it. Well,

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Speaker 1: the opinion by the Full Court of Appeals really was

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Speaker 1: a procedural decision. It really turned on the question of

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Speaker 1: whether or not the Court of Appeals should be granting

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Speaker 1: this rarely granted writ of mandamus, and a writ of

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Speaker 1: mandamus is something that is only infrequently used. It was

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Speaker 1: really not a surprise that the Full Court of Appeals

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Speaker 1: ruled the way it did because in this case, Judge

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Speaker 1: Sullivan had not actually done anything yet, he had not

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Speaker 1: even had a hearing yet, he had not ruled against

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Speaker 1: the Department of Justice's motion to dismissed. And so in

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Speaker 1: this case it was difficult or really impossible for Flynn's

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Speaker 1: lawyers to argue that they would have to be some

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Speaker 1: manifest injustice if this writ of mandamus was not granted,

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Speaker 1: and that they had no adequate alternative means in order

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Speaker 1: to satisfy their claim or gain the release they were seeking. Here,

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Speaker 1: the relief could simply come on appeal was back to

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Speaker 1: Judge Sullivan. Judge Sullivan could make a decision, and what

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Speaker 1: the Court of Appeal says is, if you don't like

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Speaker 1: the decision he made, you could be right back before

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Speaker 1: the Court of Appeals again and we will reconsider the

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Speaker 1: case at that point. Is this one of the longest

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Speaker 1: guilty please you've ever seen? Michael Flynn pleaded guilty in

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Speaker 1: December of ten. Yeah, this case does have a rather

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Speaker 1: convoluted history. It began with a guilty plea in twenty seventeen,

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Speaker 1: where he admitteds align to FBI agents about his conversations

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Speaker 1: with Russia's ambassador to the United States in the weeks

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Speaker 1: leading up to President Trump's inauguration. Then General Flynn agreed

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Speaker 1: to cooperate with Special Counsel Robert Mueller's investigation. Then he

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Speaker 1: hired a new lawyer. In the twenty nineteen he began

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Speaker 1: to retreat from his prior position trying to undo his

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Speaker 1: guilty plea. Initially in the Department of Justice opposed efforts

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Speaker 1: to withdraw the guilty plea, and then in an about face,

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Speaker 1: took the position that the case should be dismissed. That's

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Speaker 1: what led us to where we are today. But this

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Speaker 1: has been a protracted battle where we've seen the defendant

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Speaker 1: admit twice in court to lying to federal agents on

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Speaker 1: Nan is now attracting his plea and wants the case

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Speaker 1: to be dismissed. Interestingly, the Department of Justice is logic

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Speaker 1: for dismissing the case is not the General Flynn did

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Speaker 1: not lie the federal agents, but it's that it wasn't material.

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Speaker 1: They essentially attack the investigation itself and said there was

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Speaker 1: no basis for the interview of General Flynn at the time,

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Speaker 1: and therefore the statements that Flynn made FBI agents, even

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Speaker 1: if they were false, were not material to any matter

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Speaker 1: under investigation. That's the basis of the Department of Justice

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Speaker 1: has suggested to Judge Sullivan as the reasoning for their

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Speaker 1: decision to drop this case. You know, Bob, if this

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Speaker 1: case were at an earlier stage of the proceedings, not

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Speaker 1: just at the point where the judge will sentence Flynn

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Speaker 1: or dismiss the case. How could a court force prosecutors

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Speaker 1: to continue with the case that they didn't want to

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Speaker 1: proceed to trial on. Well, and that's exactly what the

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Speaker 1: government has argued, what Flynn's lawyers have argued, and what

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Speaker 1: the dissenting judges have argued. They're basically saying, dismissal of

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Speaker 1: this case is inevitable. There is no way around it.

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Speaker 1: You don't have a prosecutor here to argue the case

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Speaker 1: on behalf of the government, and therefore the case can proceed.

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Speaker 1: So why not we simply dismiss it now rather than

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Speaker 1: have a hearing that is designed, according to the government

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Speaker 1: and according to Flynn's lawyers, simply to try to embarrass

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Speaker 1: the Department of Justice by peeling back the layers of

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Speaker 1: their internal decision making and try to suggest that there

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Speaker 1: was something improper about that decision. Did it strike you

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Speaker 1: as odd that in one of the dissenting opinions the

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Speaker 1: judge basically said that Judge Sullivan was biased against Flynn.

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Speaker 1: It seemed like a broad assertion to make against a

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Speaker 1: fellow judge. It was unusual and that the battle lines

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Speaker 1: here were starkly drawn, where you had judges making harsh

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Speaker 1: assessments against one another, something that you don't often see

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Speaker 1: to accuse the judge of biases, really to attack their

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Speaker 1: core integrity, to say that they are not in a

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Speaker 1: position to rule impartially on a case. Here you had

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Speaker 1: the dissenters essentially arguing that they should have granted Judge

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Speaker 1: Flynn's motion to have Judge Sullivan reassigned and have another

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Speaker 1: judge here this case because he had made certain statements

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Speaker 1: during the criminal case that showed his bias. Ultimately, the

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Speaker 1: majority of the Court of Appeals found that that was

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Speaker 1: an extremely high bar and did not find that the

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Speaker 1: defendant had met it in this case. Are there still

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Speaker 1: unsettled questions about the power of courts to check the

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Speaker 1: executive branch in these kinds of cases. The Court of

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Speaker 1: Appeals went to great length to try to point out

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Speaker 1: that this was not a partisan decision, that they were

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Speaker 1: not mandating an outcome one way or the other here,

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Speaker 1: but essentially viewed this as holy procedural that they felt

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Speaker 1: that the trial judge had not yet ruled on the

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Speaker 1: case and it was not their position to userve the

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Speaker 1: judges authority and presume what kind of ruling he was

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Speaker 1: going to issue here. So they sent the case back

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Speaker 1: to Judge Sullivan, although they did send a clear signal

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Speaker 1: that they expect this hearing to go forward very promptly

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Speaker 1: and that they do not expect to turn into an

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Speaker 1: ebidentious here where witnesses would be called and this would

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Speaker 1: turn into essentially a trial about the Department of Justice

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Speaker 1: and their decision making process. I think the Court of

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Speaker 1: Appeals knows that at the end of the day, Judge

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Speaker 1: Sullivan will likely end up dismissing this case because there's

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Speaker 1: really not many other options. And then eventually this case

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Speaker 1: will be resolved at the trial court level, and for

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Speaker 1: some reason it's not it will come back to them

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Speaker 1: and they'll have an opportunity at that point to make

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Speaker 1: another decision, but at that point they will have a

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Speaker 1: final decision by the trial court upon which to base

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Speaker 1: their ruling. Thanks for being on the Bloomberg Law Show, Bob.

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Speaker 1: That's Robert Mints a part in the Carter in English,

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Speaker 1: and that's it for this edition of the Bloomberg Law Show.

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Speaker 1: Remember you can always get the latest legal news on

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Speaker 1: our Bloomberg Law Podcast. You can find them on iTunes

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Speaker 1: or wherever you get your favorite podcasts. I'm June Grasso.

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Speaker 1: Thanks so much for listening, and remember to tune into

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