Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio.
Speaker 1: It's the second racial discrimination lawsuit filed against McDonald's this year.
Speaker 1: More than fifty black former franchise e say they were
Speaker 1: driven out of business after being pushed by the company
Speaker 1: to set up shop in crime ridden inner city and
Speaker 1: urban areas with low volume sales and high security and
Speaker 1: insurance costs, and denied the financial help extended to white franchisees.
Speaker 1: Joining me is Eric Tallely, a professor at Columbia Law School.
Speaker 1: Start by telling us about the claims of the black
Speaker 1: McDonald's franchise Ease Sure the franchisees has sort of teamed
Speaker 1: together to bring forward two types of claims. One of
Speaker 1: the discrimination claims uh and the other is just an
Speaker 1: ordinary contract claim And they have some similarities of one
Speaker 1: another and some differences with one another. But the discrimination
Speaker 1: claim is based on one of the very oldest of
Speaker 1: the nation statutes in the United States, who's been around
Speaker 1: since eighteen sixty six. How do they claim they were
Speaker 1: discriminated against? Location? Location? Location? Is that their main claim
Speaker 1: that they weren't given the good locations. That's part of
Speaker 1: their claims it's a grab bag of a bunch of
Speaker 1: different claims, but one of the claims that the planets
Speaker 1: are making here was that they were systematically speared to
Speaker 1: some of the least profitable, highest cost locations that were
Speaker 1: in either a dangerous or rundown neighborhoods and weren't really
Speaker 1: given the opportunities to take on the more the more
Speaker 1: lucrative sorts of franchise that that that were standalone franchisees
Speaker 1: uh and more well healed parts of town. That's only
Speaker 1: part of what the claims were, however, because there were
Speaker 1: additional claims that are related to how McDonald's engaged in
Speaker 1: routine or supposedly routine inspections of the franchise establishments, whether
Speaker 1: they graded them more harshly uh than they would have
Speaker 1: graded wide owned establishment, whether the franchisees were sort of
Speaker 1: forced by the franchises without really examining but with the
Speaker 1: nature of the business, and sometimes forced to sell businesses
Speaker 1: that weren't doing as well without fully betting the market.
Speaker 1: So much of this is location, but I think a
Speaker 1: lot of it is also the nature of the relationship,
Speaker 1: the nature of the treatment that the franchise e's alleged
Speaker 1: that they had at the hands of McDonald's relative to
Speaker 1: what white branches were getting. So what kind of proof
Speaker 1: might the plaintiffs be offering. I take it there'll be
Speaker 1: offering statistics about, you know, how the black franchises have
Speaker 1: been shrinking for years. What other kinds of things would
Speaker 1: they offer. Yeah, this is going to be really depend
Speaker 1: on the nature of which type of claim they're making.
Speaker 1: That discrimination claim they're making is a little bit tricky.
Speaker 1: It not only has our short statute of limitations and
Speaker 1: only last for four years, which means some of those
Speaker 1: long standing patterns aren't necessarily going to be addressable, but
Speaker 1: the discriminations that you also requires that the plain is
Speaker 1: both demonstrate and plead that there was actually intent by
Speaker 1: McDonald's to discriminate against them, not just that their protocols,
Speaker 1: by whatever measure, led to unequal opportunities, but that McDonald's
Speaker 1: intended to discriminate against them. And so that's going to
Speaker 1: be a limitation on the discrimination sort of claim. It's
Speaker 1: not going to be enough merely to show that the
Speaker 1: number of franchisees that were black declined either relative to
Speaker 1: the total number of stores or or relative to the
Speaker 1: total number of other franchisees. The other thing is going
Speaker 1: to be a challenge for the plaint is to demonstrate
Speaker 1: the discrimination claim. They've got to be able to demonstrate
Speaker 1: that their race was what lawyers will call it but
Speaker 1: or cause of suffering loss. In other words, if they
Speaker 1: were not black, they would not have suffered the losses
Speaker 1: that they are alleging here. And this is some aspects
Speaker 1: of the case that really have changed quite recently due
Speaker 1: to recent Supreme Court opinion that put this higher burden
Speaker 1: of demonstrating that the discrimination caused the bad outcome. McDonald's,
Speaker 1: no doubt, in this part of the case, is going
Speaker 1: to say that listen, we were, you know, in a
Speaker 1: contract relationship with entrepreneurs who knew that they were taking
Speaker 1: on risks, and McDonald's will probably argue that they if
Speaker 1: the plants suffered losses, those losses were due to a
Speaker 1: whole host of causes that could also include business decisions
Speaker 1: made by the franchise themselves. And the key thing to
Speaker 1: note about this is that ties will tend to favor
Speaker 1: the defendant and McDonald's in this case. So the causation
Speaker 1: element of the of the case, I think it's going
Speaker 1: to be a little bit of challenging from a plaintiffs
Speaker 1: perspective when it comes to the discrimination play. Their argument
Speaker 1: maybe a little bit less problematic and a little bit
Speaker 1: while promising when it comes to their straight out claims
Speaker 1: that McDonald's just didn't live up to what they said
Speaker 1: they were going to do in their franchise agreement. And
Speaker 1: my guess is the planets are going to push really
Speaker 1: hard on this as well. One thing to note is
Speaker 1: that you know, McDonald's is perfectly free in their franchise
Speaker 1: contracts to promise more than what they would be obliged
Speaker 1: to do under antidiscrimination law. And and here that's one
Speaker 1: of the elements of what the plaintiffs are claiming that
Speaker 1: if you if you look at the franchise agreement the
Speaker 1: McDonald's signed with these franchise vs, that's exactly what McDonald's did.
Speaker 1: That they had general provisions and these contracts and said
Speaker 1: that they were going to make franchises available and business
Speaker 1: opportunities available to their franchisees in ways that we're not
Speaker 1: going to discriminate amongst the different franchisees, that they were
Speaker 1: going to be reasonable in the way that they inspected
Speaker 1: and evaluated the McDonald's franchises, and one of the big planes,
Speaker 1: particularly of the franchisees who were a long time franchise these,
Speaker 1: is that McDonald's just didn't live up to its own
Speaker 1: contractual obligations. And they said that they can demonstrate that.
Speaker 1: That becomes somewhat of a less challenging argument to make
Speaker 1: when it gets into litigation. McDonald's said that while it
Speaker 1: may recommend locations, ultimately it's up to the franchise eas
Speaker 1: and that the company has sold high performing franchises to
Speaker 1: black franchisees. So how does McDonald's proved the first part
Speaker 1: of that? So this is going to be a big
Speaker 1: factual aspect of the case to make it all the
Speaker 1: way to litigation. And all the different plaints may not
Speaker 1: be sitting in exactly the same position on this, but
Speaker 1: U McDonald's in in defending its actions, whether it's the
Speaker 1: discrimination charge or the preaching contract charge, is going to
Speaker 1: have to demonstrate or at least, you know, offer proof
Speaker 1: that listen, we were offering analogous forms of opportunities to
Speaker 1: all of our different franchisees about expansion, about buying up
Speaker 1: other stores. The plaintiffs are claiming that that's just not
Speaker 1: true that McDonald's didn't offer black franchise these the same
Speaker 1: opportunities that were being offered to white cranchees, that they
Speaker 1: weren't being inspected and reviewed under the things that criteria. Obviously,
Speaker 1: it's a very factually detailed set of allegations, and both
Speaker 1: parties I would expect, are going to come out of
Speaker 1: the box with fairly detailed accounts. Some of this may
Speaker 1: actually devolve into sort of statistical accounts which you can
Speaker 1: see a little bit already in the complaint about to
Speaker 1: what extent were those opportunities. Even if one or two
Speaker 1: lucrative opportunities were offered to the black franchisees, that still
Speaker 1: could mask a more systematic system that had tended to
Speaker 1: deprive black franchisees from those sorts of opportunities and end
Speaker 1: a lot of this may end up coming down to
Speaker 1: making not just one or two examples in our but
Speaker 1: trying to establish overall patterns in in one direction or another.
Speaker 1: So this sounds like an uphill battle for the franchisees
Speaker 1: as far as this lawsuit is concerned. Well, it's an
Speaker 1: uphill battle in some respects, But you have to remember
Speaker 1: that you know the plaintiffs are essentially litigating in two courts,
Speaker 1: one of the legal courts, and the other is the
Speaker 1: courts of public opinion. We are right now in a
Speaker 1: moment where economic inequality and institutionalized racism are are hugely
Speaker 1: salient political and economic issues, more so than they've been
Speaker 1: maybe even during the last half century. And and McDonald's
Speaker 1: hasn't been a by standard to this either. It's staked
Speaker 1: out a very bold and public position on black lives
Speaker 1: matter at the very end of July, including an acknowledgement
Speaker 1: that you know, some people in the McDonald's system feel
Speaker 1: like they haven't been given a fair opportunity, and they
Speaker 1: even articulated a plan for trying to bring greater diversity
Speaker 1: to their community franchise, and so you know, on some level,
Speaker 1: this lawsuit is times at an interesting moment because it's
Speaker 1: calling on McDonald's not just to talk to talk, but
Speaker 1: also to walk the walk. And the optics of defending
Speaker 1: the lawsuits might make it look like McDonald's is running
Speaker 1: the risk of looking sir disingenuous about their stated public commitment.
Speaker 1: And so the simultaneous case, I guess, in the court
Speaker 1: of public opinion is something that you know on some
Speaker 1: level is independent of the legal case, but in many
Speaker 1: ways is highly intertwined with the legal case. On top
Speaker 1: of that, it's probably important to note that McDonald's is
Speaker 1: already employed into pretty messy lotagious matters involving the departure
Speaker 1: of their chief executive and a high profile discrimination suit
Speaker 1: brought by senior executives in the organization, which in many
Speaker 1: ways helped contribute to this one. So while I would
Speaker 1: say that certain aspects of the legal case when viewed
Speaker 1: alone are a bit challenging, they also intertwined with some
Speaker 1: of the public relations aspects and the optics aspects of
Speaker 1: the case, and that could give rise to more leverage
Speaker 1: than you might otherwise expect if you were just analyzing
Speaker 1: the merits of the legal case. Alow, this is at
Speaker 1: least the second racial discrimination lawsuit filed against McDonald's this year.
Speaker 1: Would that seem to lead to McDonald's wanting to settle
Speaker 1: these out of court before these allegations become wider known
Speaker 1: at a trial. Probably. So. One thing that is definitely
Speaker 1: true is that once allegations facts come out in one trial,
Speaker 1: they can easily be picked up by other litigants and
Speaker 1: other trials. One does get the sense that McDonald's has
Speaker 1: been negotiating pretty heavily with some of the plaintiffs in
Speaker 1: this case to see if they can settle before that
Speaker 1: the complaints was filed. That evidently failed. But it's certainly
Speaker 1: logical to assume that those settlement efforts are going to
Speaker 1: be ongoing throughout the discovery phase of this particular lawsuit.
Speaker 1: And you know, many items of litigation end up, you know,
Speaker 1: ending in settlement as well. Um, And so it's no
Speaker 1: doubt the case that McDonald's mindfulness fact that some of
Speaker 1: the allegations in the various lawsuits are common to one another,
Speaker 1: and they may not be in the best position to
Speaker 1: try to defend Adam only every single one of them,
Speaker 1: and settlement may be an attractive option. That's not to
Speaker 1: say that that McDonald's doesn't have reasonable legal argument at
Speaker 1: its disposal. It's just that the legal arguments that it
Speaker 1: has is just one part of the picture. And another
Speaker 1: part of the case that I expect is going to
Speaker 1: come out a little bit um is that McDonald's may argue,
Speaker 1: you know, hey, listen, why would we deliberately go about
Speaker 1: setting up franchisees that were destined to fail. Why would
Speaker 1: that ever be in our interest? Our rents are usually
Speaker 1: predicated against the revenues that are generated by these restaurants,
Speaker 1: and so it just wouldn't wouldn't make any economic sense
Speaker 1: for us to put franchise's deliberately in a position where
Speaker 1: they're going to fail, and that that's got some plausibility
Speaker 1: to it. On the other hand, I would expect that
Speaker 1: the plans are going to point out that three quarters
Speaker 1: of the value of the assets that McDonald's is a
Speaker 1: corporation has is its land, and if that real estate
Speaker 1: is appreciating, then the key way that you make money
Speaker 1: off of it is really just to hold on to
Speaker 1: that real estate, even if you toy around with franchise
Speaker 1: these that may or may not be successful in their
Speaker 1: own businesses, particularly in poorer neighborhoods where recent tax incentives
Speaker 1: such as enterprise zones have given rise to some property appreciation,
Speaker 1: then the value of just holding onto the property may
Speaker 1: end up swamping a lot of the value associated with
Speaker 1: whether you've lived up to your obligations to your franchise
Speaker 1: these or not. McDonald's has, of course, access to incredible
Speaker 1: legal resources. Is it possible that they could just sort
Speaker 1: of overwhelm the plaintiffs in this case, It's certainly possible,
Speaker 1: and during the last year that is not a fun
Speaker 1: familiar story where a well capitalized defendant ends up overwhelming
Speaker 1: plaintiffs in that case that regardless of its merits the
Speaker 1: plaintiffs and up deciding to draw one of the things. However,
Speaker 1: that's worth noting is certainly in the last twenty years,
Speaker 1: maybe the last fifteen years, an entire industry of litigation
Speaker 1: finance to sprawn up so as to bank roll some
Speaker 1: of these plaintiffs who would have otherwise ran out of
Speaker 1: money into the extent that there is a potentially viable
Speaker 1: legal claim there. They be, combined with some of the
Speaker 1: public relations issues and the willingness of the Donalds to
Speaker 1: pay to have something go away, may end up doing
Speaker 1: some of those fires in ways that simply weren't possible
Speaker 1: twenty years ago on the litigation finance industry was at
Speaker 1: it's very infancy and in some cases not even legal,
Speaker 1: and a lot of a lot of jurisdiction. So uh
Speaker 1: so uh this this idea of the you know, of
Speaker 1: the of the well bankrolls corporate defendant basic basically being
Speaker 1: able to spend plaintiffs into the ground. It still exists,
Speaker 1: but it's probably more moderated thing used to be because
Speaker 1: of the availability of litigation finance. Thanks Eric. That's Eric
Speaker 1: Tally of Columbia Law School. The legal saga of Michael
Speaker 1: Flynn will continue. The DC Federal Court of Appeals has
Speaker 1: ruled that the Justice Department and the former Trump National
Speaker 1: Security advisor cannot force a trial judge to dismiss the
Speaker 1: criminal case against him without a hearing. The aid to
Speaker 1: two decision was the result of a rare ombank hearing
Speaker 1: after a three judge panel ruled in favor of Flynn
Speaker 1: in June. This ruling is the latest development in a
Speaker 1: legal case that has taken unusual twists and turns, leading
Speaker 1: to the latest separation of powers fight between a veteran
Speaker 1: federal judge and the Trump administration. Joining me as former
Speaker 1: federal prosecutor Robert Mints a partner McCarter and English So Bob,
Speaker 1: what was the reason the court gave for reversing the
Speaker 1: decision of the three judge panel. The Federal Appeals Court
Speaker 1: rejected a bid by Michael Flynn, President trump first national
Speaker 1: security adviser to forced the immediate dismissal of the criminal
Speaker 1: case and which he's been convicted of lying to FBI agents.
Speaker 1: The appeals court judges decided that Flynn's request to have
Speaker 1: the case immediately dismissed was premature since the U. S.
Speaker 1: District Court judge had not yet ruled on the dismissal
Speaker 1: request by the Department of Justice. The Court of Appeals
Speaker 1: also rejected Flynn's request that the judge be removed from
Speaker 1: the case, arguing that the trial judge was biased against
Speaker 1: him and he was entitled to a different judge to
Speaker 1: make a determination after sentencing. The DC Court confirmed what
Speaker 1: many legal experts have been saying that this was an
Speaker 1: unprecedented move by Flynn, saying that Flynn has not cited
Speaker 1: any case in which our court or any court issued
Speaker 1: the writ to compel a district court to decide an
Speaker 1: undecided motion in a particular way. Does that put into
Speaker 1: context how odd this motion was at this time? Yes,
Speaker 1: this whole case has been extremely unusual for whole variety
Speaker 1: of reasons. And what it really turns on is this
Speaker 1: question of who has the right to determine whether a
Speaker 1: case should be dismissed. Essentially, the executive branch clearly has
Speaker 1: the authority to commence or to continue a prosecution. That's
Speaker 1: something that is up to the Department of Justice. But
Speaker 1: real four yate A requires leave of court before a
Speaker 1: case is dismissed. And that's exactly what this entire controversy
Speaker 1: is about. What does leave of court means? Does active
Speaker 1: the trial judge the authority to probe the Department of
Speaker 1: Justice for the reasons that they are dismissing a case,
Speaker 1: or does the trial judge that we have to accept
Speaker 1: the dismissal at face value and dismissed the case regardless
Speaker 1: of any concerns that the trialing judge may have about
Speaker 1: the motivation behind the Department of Justice's decisions. What were
Speaker 1: the dissents by two Republican appointees based on the on
Speaker 1: Bond decision, which is a decision by all ten active
Speaker 1: circuit judges that were not refused from the case, lie
Speaker 1: up against the two dissenting Republican appointees. Those two judges
Speaker 1: in May had formed the majority of a three judge
Speaker 1: panel that initially ruled in flann favor, and the first
Speaker 1: ruling by the three judge panel, the two judges in
Speaker 1: the majority found that the trial judge did not have
Speaker 1: the authority to question the decision by the Department of
Speaker 1: Justice to dismiss the case. In the opinion written by
Speaker 1: the two to one panel decision, Judge Rao had argued
Speaker 1: that there was no prosecution left here because there was
Speaker 1: no prosecutor. Essentially, that it is a Department of Justice
Speaker 1: is loan authority to decide whether to prosecute a case,
Speaker 1: and if they, for whatever reason, decide not to continue
Speaker 1: that prosecution, there is no prosecutor to argue the government
Speaker 1: side of the case, and therefore the case had to
Speaker 1: be dismissed. But what's really underlying all of this is
Speaker 1: not so much the final ruling. In other words, the
Speaker 1: question of whether or not the prosecution will continue, because
Speaker 1: it's unlikely that it will. What this hearing is really
Speaker 1: about is the question of whether or not the trial
Speaker 1: judge gets to probe into the reasoning behind the Department
Speaker 1: of Justice and decision to drop this case. Essentially, what
Speaker 1: the dissenting judges are arguing is that the trial judge
Speaker 1: does not have the authority to probe into the internal
Speaker 1: decision making by the Department of Justice, that that's an
Speaker 1: executive department decision and that what the court here is
Speaker 1: doing is usurping the authority of the Executive Department to
Speaker 1: decide whether or not to prosecute criminal cases. This is
Speaker 1: obviously a victory for Judge m It's Sullivan, but how
Speaker 1: much of a victory? And what I mean by that is,
Speaker 1: do the d C. Circuit Court define what kind of
Speaker 1: hearing he can hold? Can he actually dig into the
Speaker 1: administration's motives for dismissing the case against Flynn. What this
Speaker 1: ruling does is it sends the case back for consideration
Speaker 1: by Judge Sullivan. Judge Sullivan could dismiss the case as requested,
Speaker 1: or request that the case moved to sentencing and have
Speaker 1: some kind of hearing to determine whether or not the
Speaker 1: Department of Justice was correct in making a decision to
Speaker 1: drop this case. But the Court of Appeals also sent
Speaker 1: a very clear signal to the trial judge that they
Speaker 1: do not expect this hearing to turn into any kind
Speaker 1: of a circus. And in fact, the lawyer who was
Speaker 1: representing Judge Sullivan before the full Court of Appeals actually
Speaker 1: represented during the argument that there will be no discovery
Speaker 1: from the Department of Justice during any kind of sharing.
Speaker 1: There will be no evidentiary hearing, and in fact, she
Speaker 1: argued that the judge may well decide to dismiss this
Speaker 1: case after the party's simply filed briefs. The argument that
Speaker 1: was essentially made on behalf of Judge Sullivan was that
Speaker 1: it was premature at this point for the Court of
Speaker 1: Appeals to force him to dismiss the case since he
Speaker 1: had not yet even ruled on the govern meants motion
Speaker 1: to dismiss. So I've explained the motion from man Dams
Speaker 1: and what the d C Circuit ruled about it. Well,
Speaker 1: the opinion by the Full Court of Appeals really was
Speaker 1: a procedural decision. It really turned on the question of
Speaker 1: whether or not the Court of Appeals should be granting
Speaker 1: this rarely granted writ of mandamus, and a writ of
Speaker 1: mandamus is something that is only infrequently used. It was
Speaker 1: really not a surprise that the Full Court of Appeals
Speaker 1: ruled the way it did because in this case, Judge
Speaker 1: Sullivan had not actually done anything yet, he had not
Speaker 1: even had a hearing yet, he had not ruled against
Speaker 1: the Department of Justice's motion to dismissed. And so in
Speaker 1: this case it was difficult or really impossible for Flynn's
Speaker 1: lawyers to argue that they would have to be some
Speaker 1: manifest injustice if this writ of mandamus was not granted,
Speaker 1: and that they had no adequate alternative means in order
Speaker 1: to satisfy their claim or gain the release they were seeking. Here,
Speaker 1: the relief could simply come on appeal was back to
Speaker 1: Judge Sullivan. Judge Sullivan could make a decision, and what
Speaker 1: the Court of Appeal says is, if you don't like
Speaker 1: the decision he made, you could be right back before
Speaker 1: the Court of Appeals again and we will reconsider the
Speaker 1: case at that point. Is this one of the longest
Speaker 1: guilty please you've ever seen? Michael Flynn pleaded guilty in
Speaker 1: December of ten. Yeah, this case does have a rather
Speaker 1: convoluted history. It began with a guilty plea in twenty seventeen,
Speaker 1: where he admitteds align to FBI agents about his conversations
Speaker 1: with Russia's ambassador to the United States in the weeks
Speaker 1: leading up to President Trump's inauguration. Then General Flynn agreed
Speaker 1: to cooperate with Special Counsel Robert Mueller's investigation. Then he
Speaker 1: hired a new lawyer. In the twenty nineteen he began
Speaker 1: to retreat from his prior position trying to undo his
Speaker 1: guilty plea. Initially in the Department of Justice opposed efforts
Speaker 1: to withdraw the guilty plea, and then in an about face,
Speaker 1: took the position that the case should be dismissed. That's
Speaker 1: what led us to where we are today. But this
Speaker 1: has been a protracted battle where we've seen the defendant
Speaker 1: admit twice in court to lying to federal agents on
Speaker 1: Nan is now attracting his plea and wants the case
Speaker 1: to be dismissed. Interestingly, the Department of Justice is logic
Speaker 1: for dismissing the case is not the General Flynn did
Speaker 1: not lie the federal agents, but it's that it wasn't material.
Speaker 1: They essentially attack the investigation itself and said there was
Speaker 1: no basis for the interview of General Flynn at the time,
Speaker 1: and therefore the statements that Flynn made FBI agents, even
Speaker 1: if they were false, were not material to any matter
Speaker 1: under investigation. That's the basis of the Department of Justice
Speaker 1: has suggested to Judge Sullivan as the reasoning for their
Speaker 1: decision to drop this case. You know, Bob, if this
Speaker 1: case were at an earlier stage of the proceedings, not
Speaker 1: just at the point where the judge will sentence Flynn
Speaker 1: or dismiss the case. How could a court force prosecutors
Speaker 1: to continue with the case that they didn't want to
Speaker 1: proceed to trial on. Well, and that's exactly what the
Speaker 1: government has argued, what Flynn's lawyers have argued, and what
Speaker 1: the dissenting judges have argued. They're basically saying, dismissal of
Speaker 1: this case is inevitable. There is no way around it.
Speaker 1: You don't have a prosecutor here to argue the case
Speaker 1: on behalf of the government, and therefore the case can proceed.
Speaker 1: So why not we simply dismiss it now rather than
Speaker 1: have a hearing that is designed, according to the government
Speaker 1: and according to Flynn's lawyers, simply to try to embarrass
Speaker 1: the Department of Justice by peeling back the layers of
Speaker 1: their internal decision making and try to suggest that there
Speaker 1: was something improper about that decision. Did it strike you
Speaker 1: as odd that in one of the dissenting opinions the
Speaker 1: judge basically said that Judge Sullivan was biased against Flynn.
Speaker 1: It seemed like a broad assertion to make against a
Speaker 1: fellow judge. It was unusual and that the battle lines
Speaker 1: here were starkly drawn, where you had judges making harsh
Speaker 1: assessments against one another, something that you don't often see
Speaker 1: to accuse the judge of biases, really to attack their
Speaker 1: core integrity, to say that they are not in a
Speaker 1: position to rule impartially on a case. Here you had
Speaker 1: the dissenters essentially arguing that they should have granted Judge
Speaker 1: Flynn's motion to have Judge Sullivan reassigned and have another
Speaker 1: judge here this case because he had made certain statements
Speaker 1: during the criminal case that showed his bias. Ultimately, the
Speaker 1: majority of the Court of Appeals found that that was
Speaker 1: an extremely high bar and did not find that the
Speaker 1: defendant had met it in this case. Are there still
Speaker 1: unsettled questions about the power of courts to check the
Speaker 1: executive branch in these kinds of cases. The Court of
Speaker 1: Appeals went to great length to try to point out
Speaker 1: that this was not a partisan decision, that they were
Speaker 1: not mandating an outcome one way or the other here,
Speaker 1: but essentially viewed this as holy procedural that they felt
Speaker 1: that the trial judge had not yet ruled on the
Speaker 1: case and it was not their position to userve the
Speaker 1: judges authority and presume what kind of ruling he was
Speaker 1: going to issue here. So they sent the case back
Speaker 1: to Judge Sullivan, although they did send a clear signal
Speaker 1: that they expect this hearing to go forward very promptly
Speaker 1: and that they do not expect to turn into an
Speaker 1: ebidentious here where witnesses would be called and this would
Speaker 1: turn into essentially a trial about the Department of Justice
Speaker 1: and their decision making process. I think the Court of
Speaker 1: Appeals knows that at the end of the day, Judge
Speaker 1: Sullivan will likely end up dismissing this case because there's
Speaker 1: really not many other options. And then eventually this case
Speaker 1: will be resolved at the trial court level, and for
Speaker 1: some reason it's not it will come back to them
Speaker 1: and they'll have an opportunity at that point to make
Speaker 1: another decision, but at that point they will have a
Speaker 1: final decision by the trial court upon which to base
Speaker 1: their ruling. Thanks for being on the Bloomberg Law Show, Bob.
Speaker 1: That's Robert Mints a part in the Carter in English,
Speaker 1: and that's it for this edition of the Bloomberg Law Show.
Speaker 1: Remember you can always get the latest legal news on
Speaker 1: our Bloomberg Law Podcast. You can find them on iTunes
Speaker 1: or wherever you get your favorite podcasts. I'm June Grasso.
Speaker 1: Thanks so much for listening, and remember to tune into
Speaker 1: The Bloomberg Law Show every weeknight at ten pm Eastern,
Speaker 1: right here on Bloomberg Radio