WEBVTT - Former Black Franchisees Sue McDonald's 0:00:00.480 --> 0:00:05.680 You're listening to Bloomberg Law with June Grasso from Bloomberg Radio. 0:00:06.519 --> 0:00:10.959 It's the second racial discrimination lawsuit filed against McDonald's this year. 0:00:11.560 --> 0:00:14.760 More than fifty black former franchise e say they were 0:00:14.840 --> 0:00:17.919 driven out of business after being pushed by the company 0:00:17.960 --> 0:00:20.439 to set up shop in crime ridden inner city and 0:00:20.600 --> 0:00:24.119 urban areas with low volume sales and high security and 0:00:24.200 --> 0:00:29.080 insurance costs, and denied the financial help extended to white franchisees. 0:00:29.920 --> 0:00:33.000 Joining me is Eric Tallely, a professor at Columbia Law School. 0:00:33.760 --> 0:00:37.880 Start by telling us about the claims of the black 0:00:37.960 --> 0:00:42.560 McDonald's franchise Ease Sure the franchisees has sort of teamed 0:00:42.640 --> 0:00:45.760 together to bring forward two types of claims. One of 0:00:45.760 --> 0:00:49.000 the discrimination claims uh and the other is just an 0:00:49.120 --> 0:00:53.599 ordinary contract claim And they have some similarities of one 0:00:53.600 --> 0:00:57.440 another and some differences with one another. But the discrimination 0:00:57.480 --> 0:01:00.040 claim is based on one of the very oldest of 0:01:00.080 --> 0:01:02.520 the nation statutes in the United States, who's been around 0:01:02.600 --> 0:01:06.160 since eighteen sixty six. How do they claim they were 0:01:06.160 --> 0:01:10.640 discriminated against? Location? Location? Location? Is that their main claim 0:01:10.800 --> 0:01:14.000 that they weren't given the good locations. That's part of 0:01:14.040 --> 0:01:15.880 their claims it's a grab bag of a bunch of 0:01:15.880 --> 0:01:18.280 different claims, but one of the claims that the planets 0:01:18.280 --> 0:01:21.600 are making here was that they were systematically speared to 0:01:21.720 --> 0:01:25.800 some of the least profitable, highest cost locations that were 0:01:25.800 --> 0:01:29.320 in either a dangerous or rundown neighborhoods and weren't really 0:01:29.360 --> 0:01:33.399 given the opportunities to take on the more the more 0:01:33.520 --> 0:01:37.679 lucrative sorts of franchise that that that were standalone franchisees 0:01:38.040 --> 0:01:42.280 uh and more well healed parts of town. That's only 0:01:42.360 --> 0:01:44.920 part of what the claims were, however, because there were 0:01:44.959 --> 0:01:49.240 additional claims that are related to how McDonald's engaged in 0:01:49.640 --> 0:01:54.720 routine or supposedly routine inspections of the franchise establishments, whether 0:01:54.760 --> 0:01:58.000 they graded them more harshly uh than they would have 0:01:58.160 --> 0:02:02.760 graded wide owned establishment, whether the franchisees were sort of 0:02:02.880 --> 0:02:07.080 forced by the franchises without really examining but with the 0:02:07.160 --> 0:02:10.160 nature of the business, and sometimes forced to sell businesses 0:02:10.160 --> 0:02:13.640 that weren't doing as well without fully betting the market. 0:02:13.760 --> 0:02:16.200 So much of this is location, but I think a 0:02:16.200 --> 0:02:19.160 lot of it is also the nature of the relationship, 0:02:19.360 --> 0:02:22.480 the nature of the treatment that the franchise e's alleged 0:02:22.600 --> 0:02:26.040 that they had at the hands of McDonald's relative to 0:02:26.120 --> 0:02:30.760 what white branches were getting. So what kind of proof 0:02:30.960 --> 0:02:34.480 might the plaintiffs be offering. I take it there'll be 0:02:34.520 --> 0:02:38.560 offering statistics about, you know, how the black franchises have 0:02:38.680 --> 0:02:42.239 been shrinking for years. What other kinds of things would 0:02:42.280 --> 0:02:45.519 they offer. Yeah, this is going to be really depend 0:02:45.560 --> 0:02:48.000 on the nature of which type of claim they're making. 0:02:48.080 --> 0:02:50.880 That discrimination claim they're making is a little bit tricky. 0:02:51.320 --> 0:02:53.720 It not only has our short statute of limitations and 0:02:53.880 --> 0:02:56.400 only last for four years, which means some of those 0:02:56.440 --> 0:03:01.080 long standing patterns aren't necessarily going to be addressable, but 0:03:01.480 --> 0:03:04.760 the discriminations that you also requires that the plain is 0:03:05.080 --> 0:03:08.320 both demonstrate and plead that there was actually intent by 0:03:08.400 --> 0:03:12.520 McDonald's to discriminate against them, not just that their protocols, 0:03:12.600 --> 0:03:16.840 by whatever measure, led to unequal opportunities, but that McDonald's 0:03:16.880 --> 0:03:19.959 intended to discriminate against them. And so that's going to 0:03:20.040 --> 0:03:23.840 be a limitation on the discrimination sort of claim. It's 0:03:23.880 --> 0:03:26.880 not going to be enough merely to show that the 0:03:27.000 --> 0:03:31.360 number of franchisees that were black declined either relative to 0:03:31.360 --> 0:03:33.760 the total number of stores or or relative to the 0:03:34.080 --> 0:03:37.680 total number of other franchisees. The other thing is going 0:03:37.760 --> 0:03:40.720 to be a challenge for the plaint is to demonstrate 0:03:40.840 --> 0:03:43.720 the discrimination claim. They've got to be able to demonstrate 0:03:44.120 --> 0:03:46.800 that their race was what lawyers will call it but 0:03:47.200 --> 0:03:50.720 or cause of suffering loss. In other words, if they 0:03:50.720 --> 0:03:53.240 were not black, they would not have suffered the losses 0:03:53.640 --> 0:03:56.800 that they are alleging here. And this is some aspects 0:03:56.840 --> 0:03:59.760 of the case that really have changed quite recently due 0:03:59.800 --> 0:04:03.280 to recent Supreme Court opinion that put this higher burden 0:04:03.320 --> 0:04:08.760 of demonstrating that the discrimination caused the bad outcome. McDonald's, 0:04:08.800 --> 0:04:11.560 no doubt, in this part of the case, is going 0:04:11.640 --> 0:04:14.160 to say that listen, we were, you know, in a 0:04:14.240 --> 0:04:17.599 contract relationship with entrepreneurs who knew that they were taking 0:04:17.640 --> 0:04:21.520 on risks, and McDonald's will probably argue that they if 0:04:21.520 --> 0:04:24.200 the plants suffered losses, those losses were due to a 0:04:24.279 --> 0:04:28.800 whole host of causes that could also include business decisions 0:04:28.839 --> 0:04:32.000 made by the franchise themselves. And the key thing to 0:04:32.040 --> 0:04:34.640 note about this is that ties will tend to favor 0:04:34.760 --> 0:04:38.080 the defendant and McDonald's in this case. So the causation 0:04:38.200 --> 0:04:40.760 element of the of the case, I think it's going 0:04:40.800 --> 0:04:43.799 to be a little bit of challenging from a plaintiffs 0:04:43.839 --> 0:04:48.320 perspective when it comes to the discrimination play. Their argument 0:04:48.400 --> 0:04:51.720 maybe a little bit less problematic and a little bit 0:04:51.720 --> 0:04:54.839 while promising when it comes to their straight out claims 0:04:54.920 --> 0:04:57.560 that McDonald's just didn't live up to what they said 0:04:57.600 --> 0:05:00.080 they were going to do in their franchise agreement. And 0:05:00.160 --> 0:05:02.479 my guess is the planets are going to push really 0:05:02.520 --> 0:05:05.800 hard on this as well. One thing to note is 0:05:05.839 --> 0:05:09.560 that you know, McDonald's is perfectly free in their franchise 0:05:09.640 --> 0:05:13.599 contracts to promise more than what they would be obliged 0:05:13.600 --> 0:05:17.440 to do under antidiscrimination law. And and here that's one 0:05:17.480 --> 0:05:19.680 of the elements of what the plaintiffs are claiming that 0:05:19.720 --> 0:05:21.600 if you if you look at the franchise agreement the 0:05:21.680 --> 0:05:26.200 McDonald's signed with these franchise vs, that's exactly what McDonald's did. 0:05:26.360 --> 0:05:29.479 That they had general provisions and these contracts and said 0:05:29.480 --> 0:05:32.960 that they were going to make franchises available and business 0:05:32.960 --> 0:05:37.120 opportunities available to their franchisees in ways that we're not 0:05:37.160 --> 0:05:40.840 going to discriminate amongst the different franchisees, that they were 0:05:40.839 --> 0:05:43.080 going to be reasonable in the way that they inspected 0:05:43.160 --> 0:05:47.160 and evaluated the McDonald's franchises, and one of the big planes, 0:05:47.200 --> 0:05:50.560 particularly of the franchisees who were a long time franchise these, 0:05:50.839 --> 0:05:53.160 is that McDonald's just didn't live up to its own 0:05:53.279 --> 0:05:57.359 contractual obligations. And they said that they can demonstrate that. 0:05:57.360 --> 0:06:00.479 That becomes somewhat of a less challenging argument to make 0:06:00.760 --> 0:06:05.440 when it gets into litigation. McDonald's said that while it 0:06:05.520 --> 0:06:09.800 may recommend locations, ultimately it's up to the franchise eas 0:06:10.320 --> 0:06:13.880 and that the company has sold high performing franchises to 0:06:14.440 --> 0:06:19.120 black franchisees. So how does McDonald's proved the first part 0:06:19.120 --> 0:06:21.239 of that? So this is going to be a big 0:06:21.680 --> 0:06:23.919 factual aspect of the case to make it all the 0:06:23.920 --> 0:06:27.039 way to litigation. And all the different plaints may not 0:06:27.120 --> 0:06:29.599 be sitting in exactly the same position on this, but 0:06:30.080 --> 0:06:33.880 U McDonald's in in defending its actions, whether it's the 0:06:33.920 --> 0:06:38.440 discrimination charge or the preaching contract charge, is going to 0:06:38.520 --> 0:06:42.839 have to demonstrate or at least, you know, offer proof 0:06:42.880 --> 0:06:47.400 that listen, we were offering analogous forms of opportunities to 0:06:47.720 --> 0:06:51.120 all of our different franchisees about expansion, about buying up 0:06:51.520 --> 0:06:54.440 other stores. The plaintiffs are claiming that that's just not 0:06:54.560 --> 0:06:57.719 true that McDonald's didn't offer black franchise these the same 0:06:57.720 --> 0:07:00.880 opportunities that were being offered to white cranchees, that they 0:07:00.920 --> 0:07:07.160 weren't being inspected and reviewed under the things that criteria. Obviously, 0:07:07.200 --> 0:07:11.000 it's a very factually detailed set of allegations, and both 0:07:11.040 --> 0:07:13.520 parties I would expect, are going to come out of 0:07:13.520 --> 0:07:17.440 the box with fairly detailed accounts. Some of this may 0:07:17.560 --> 0:07:20.920 actually devolve into sort of statistical accounts which you can 0:07:20.960 --> 0:07:23.720 see a little bit already in the complaint about to 0:07:23.800 --> 0:07:26.760 what extent were those opportunities. Even if one or two 0:07:26.840 --> 0:07:31.080 lucrative opportunities were offered to the black franchisees, that still 0:07:31.160 --> 0:07:35.240 could mask a more systematic system that had tended to 0:07:35.320 --> 0:07:38.840 deprive black franchisees from those sorts of opportunities and end 0:07:39.200 --> 0:07:41.200 a lot of this may end up coming down to 0:07:41.400 --> 0:07:44.400 making not just one or two examples in our but 0:07:44.720 --> 0:07:48.800 trying to establish overall patterns in in one direction or another. 0:07:49.360 --> 0:07:53.080 So this sounds like an uphill battle for the franchisees 0:07:53.160 --> 0:07:57.400 as far as this lawsuit is concerned. Well, it's an 0:07:57.440 --> 0:08:00.520 uphill battle in some respects, But you have to remember 0:08:00.640 --> 0:08:04.360 that you know the plaintiffs are essentially litigating in two courts, 0:08:04.360 --> 0:08:06.320 one of the legal courts, and the other is the 0:08:06.400 --> 0:08:09.600 courts of public opinion. We are right now in a 0:08:09.680 --> 0:08:14.840 moment where economic inequality and institutionalized racism are are hugely 0:08:15.000 --> 0:08:18.880 salient political and economic issues, more so than they've been 0:08:19.000 --> 0:08:22.640 maybe even during the last half century. And and McDonald's 0:08:22.640 --> 0:08:26.000 hasn't been a by standard to this either. It's staked 0:08:26.000 --> 0:08:29.480 out a very bold and public position on black lives 0:08:29.480 --> 0:08:32.959 matter at the very end of July, including an acknowledgement 0:08:33.120 --> 0:08:36.000 that you know, some people in the McDonald's system feel 0:08:36.040 --> 0:08:40.160 like they haven't been given a fair opportunity, and they 0:08:40.160 --> 0:08:44.080 even articulated a plan for trying to bring greater diversity 0:08:44.160 --> 0:08:48.439 to their community franchise, and so you know, on some level, 0:08:48.760 --> 0:08:52.680 this lawsuit is times at an interesting moment because it's 0:08:52.760 --> 0:08:55.760 calling on McDonald's not just to talk to talk, but 0:08:55.840 --> 0:08:59.079 also to walk the walk. And the optics of defending 0:08:59.080 --> 0:09:02.080 the lawsuits might make it look like McDonald's is running 0:09:02.080 --> 0:09:06.640 the risk of looking sir disingenuous about their stated public commitment. 0:09:06.960 --> 0:09:10.040 And so the simultaneous case, I guess, in the court 0:09:10.080 --> 0:09:13.080 of public opinion is something that you know on some 0:09:13.280 --> 0:09:15.800 level is independent of the legal case, but in many 0:09:15.840 --> 0:09:19.400 ways is highly intertwined with the legal case. On top 0:09:19.440 --> 0:09:22.520 of that, it's probably important to note that McDonald's is 0:09:22.640 --> 0:09:29.079 already employed into pretty messy lotagious matters involving the departure 0:09:29.120 --> 0:09:33.200 of their chief executive and a high profile discrimination suit 0:09:33.520 --> 0:09:37.320 brought by senior executives in the organization, which in many 0:09:37.360 --> 0:09:41.280 ways helped contribute to this one. So while I would 0:09:41.280 --> 0:09:44.400 say that certain aspects of the legal case when viewed 0:09:44.400 --> 0:09:49.080 alone are a bit challenging, they also intertwined with some 0:09:49.160 --> 0:09:52.200 of the public relations aspects and the optics aspects of 0:09:52.280 --> 0:09:55.760 the case, and that could give rise to more leverage 0:09:55.800 --> 0:09:59.240 than you might otherwise expect if you were just analyzing 0:09:59.800 --> 0:10:02.840 the merits of the legal case. Alow, this is at 0:10:02.920 --> 0:10:07.559 least the second racial discrimination lawsuit filed against McDonald's this year. 0:10:08.280 --> 0:10:12.240 Would that seem to lead to McDonald's wanting to settle 0:10:12.320 --> 0:10:16.320 these out of court before these allegations become wider known 0:10:16.360 --> 0:10:19.400 at a trial. Probably. So. One thing that is definitely 0:10:19.480 --> 0:10:23.160 true is that once allegations facts come out in one trial, 0:10:23.200 --> 0:10:25.760 they can easily be picked up by other litigants and 0:10:25.840 --> 0:10:29.040 other trials. One does get the sense that McDonald's has 0:10:29.080 --> 0:10:31.960 been negotiating pretty heavily with some of the plaintiffs in 0:10:32.000 --> 0:10:34.439 this case to see if they can settle before that 0:10:34.559 --> 0:10:39.320 the complaints was filed. That evidently failed. But it's certainly 0:10:39.360 --> 0:10:42.400 logical to assume that those settlement efforts are going to 0:10:42.480 --> 0:10:47.240 be ongoing throughout the discovery phase of this particular lawsuit. 0:10:47.760 --> 0:10:50.640 And you know, many items of litigation end up, you know, 0:10:50.800 --> 0:10:54.640 ending in settlement as well. Um, And so it's no 0:10:54.720 --> 0:10:57.439 doubt the case that McDonald's mindfulness fact that some of 0:10:57.480 --> 0:11:01.360 the allegations in the various lawsuits are common to one another, 0:11:01.600 --> 0:11:05.280 and they may not be in the best position to 0:11:05.400 --> 0:11:07.960 try to defend Adam only every single one of them, 0:11:08.320 --> 0:11:12.120 and settlement may be an attractive option. That's not to 0:11:12.160 --> 0:11:16.240 say that that McDonald's doesn't have reasonable legal argument at 0:11:16.280 --> 0:11:19.120 its disposal. It's just that the legal arguments that it 0:11:19.160 --> 0:11:22.360 has is just one part of the picture. And another 0:11:22.520 --> 0:11:24.640 part of the case that I expect is going to 0:11:24.760 --> 0:11:28.320 come out a little bit um is that McDonald's may argue, 0:11:28.679 --> 0:11:31.720 you know, hey, listen, why would we deliberately go about 0:11:31.880 --> 0:11:35.640 setting up franchisees that were destined to fail. Why would 0:11:35.679 --> 0:11:38.720 that ever be in our interest? Our rents are usually 0:11:38.760 --> 0:11:42.359 predicated against the revenues that are generated by these restaurants, 0:11:42.360 --> 0:11:45.079 and so it just wouldn't wouldn't make any economic sense 0:11:45.480 --> 0:11:49.000 for us to put franchise's deliberately in a position where 0:11:49.520 --> 0:11:53.200 they're going to fail, and that that's got some plausibility 0:11:53.280 --> 0:11:55.439 to it. On the other hand, I would expect that 0:11:55.520 --> 0:11:57.640 the plans are going to point out that three quarters 0:11:57.640 --> 0:12:00.040 of the value of the assets that McDonald's is a 0:12:00.120 --> 0:12:03.920 corporation has is its land, and if that real estate 0:12:04.000 --> 0:12:06.400 is appreciating, then the key way that you make money 0:12:06.440 --> 0:12:08.559 off of it is really just to hold on to 0:12:08.679 --> 0:12:11.920 that real estate, even if you toy around with franchise 0:12:11.960 --> 0:12:14.360 these that may or may not be successful in their 0:12:14.400 --> 0:12:20.280 own businesses, particularly in poorer neighborhoods where recent tax incentives 0:12:20.280 --> 0:12:24.959 such as enterprise zones have given rise to some property appreciation, 0:12:25.440 --> 0:12:28.600 then the value of just holding onto the property may 0:12:28.720 --> 0:12:31.520 end up swamping a lot of the value associated with 0:12:31.559 --> 0:12:34.680 whether you've lived up to your obligations to your franchise 0:12:34.679 --> 0:12:39.880 these or not. McDonald's has, of course, access to incredible 0:12:39.920 --> 0:12:44.240 legal resources. Is it possible that they could just sort 0:12:44.280 --> 0:12:48.960 of overwhelm the plaintiffs in this case, It's certainly possible, 0:12:49.040 --> 0:12:51.920 and during the last year that is not a fun 0:12:52.000 --> 0:12:56.520 familiar story where a well capitalized defendant ends up overwhelming 0:12:57.200 --> 0:13:00.640 plaintiffs in that case that regardless of its merits the 0:13:00.679 --> 0:13:04.360 plaintiffs and up deciding to draw one of the things. However, 0:13:04.440 --> 0:13:07.600 that's worth noting is certainly in the last twenty years, 0:13:07.640 --> 0:13:11.760 maybe the last fifteen years, an entire industry of litigation 0:13:11.920 --> 0:13:15.240 finance to sprawn up so as to bank roll some 0:13:15.360 --> 0:13:18.440 of these plaintiffs who would have otherwise ran out of 0:13:18.559 --> 0:13:22.200 money into the extent that there is a potentially viable 0:13:22.360 --> 0:13:24.960 legal claim there. They be, combined with some of the 0:13:25.080 --> 0:13:28.199 public relations issues and the willingness of the Donalds to 0:13:28.320 --> 0:13:31.360 pay to have something go away, may end up doing 0:13:31.440 --> 0:13:34.400 some of those fires in ways that simply weren't possible 0:13:34.480 --> 0:13:38.439 twenty years ago on the litigation finance industry was at 0:13:38.440 --> 0:13:41.160 it's very infancy and in some cases not even legal, 0:13:41.200 --> 0:13:43.959 and a lot of a lot of jurisdiction. So uh 0:13:44.040 --> 0:13:47.360 so uh this this idea of the you know, of 0:13:47.440 --> 0:13:51.240 the of the well bankrolls corporate defendant basic basically being 0:13:51.280 --> 0:13:54.800 able to spend plaintiffs into the ground. It still exists, 0:13:54.920 --> 0:13:57.959 but it's probably more moderated thing used to be because 0:13:58.000 --> 0:14:01.719 of the availability of litigation finance. Thanks Eric. That's Eric 0:14:01.760 --> 0:14:07.080 Tally of Columbia Law School. The legal saga of Michael 0:14:07.120 --> 0:14:10.839 Flynn will continue. The DC Federal Court of Appeals has 0:14:10.960 --> 0:14:14.199 ruled that the Justice Department and the former Trump National 0:14:14.240 --> 0:14:17.720 Security advisor cannot force a trial judge to dismiss the 0:14:17.720 --> 0:14:20.680 criminal case against him without a hearing. The aid to 0:14:20.720 --> 0:14:23.920 two decision was the result of a rare ombank hearing 0:14:24.280 --> 0:14:27.160 after a three judge panel ruled in favor of Flynn 0:14:27.160 --> 0:14:30.560 in June. This ruling is the latest development in a 0:14:30.640 --> 0:14:34.640 legal case that has taken unusual twists and turns, leading 0:14:34.640 --> 0:14:37.800 to the latest separation of powers fight between a veteran 0:14:37.840 --> 0:14:41.600 federal judge and the Trump administration. Joining me as former 0:14:41.640 --> 0:14:46.000 federal prosecutor Robert Mints a partner McCarter and English So Bob, 0:14:46.040 --> 0:14:48.560 what was the reason the court gave for reversing the 0:14:48.600 --> 0:14:53.320 decision of the three judge panel. The Federal Appeals Court 0:14:53.520 --> 0:14:57.960 rejected a bid by Michael Flynn, President trump first national 0:14:58.040 --> 0:15:02.400 security adviser to forced the immediate dismissal of the criminal 0:15:02.440 --> 0:15:06.120 case and which he's been convicted of lying to FBI agents. 0:15:06.520 --> 0:15:09.280 The appeals court judges decided that Flynn's request to have 0:15:09.320 --> 0:15:12.600 the case immediately dismissed was premature since the U. S. 0:15:12.640 --> 0:15:16.160 District Court judge had not yet ruled on the dismissal 0:15:16.200 --> 0:15:19.040 request by the Department of Justice. The Court of Appeals 0:15:19.120 --> 0:15:23.680 also rejected Flynn's request that the judge be removed from 0:15:23.680 --> 0:15:27.200 the case, arguing that the trial judge was biased against 0:15:27.280 --> 0:15:29.560 him and he was entitled to a different judge to 0:15:29.600 --> 0:15:34.600 make a determination after sentencing. The DC Court confirmed what 0:15:34.800 --> 0:15:37.640 many legal experts have been saying that this was an 0:15:37.760 --> 0:15:42.000 unprecedented move by Flynn, saying that Flynn has not cited 0:15:42.040 --> 0:15:45.360 any case in which our court or any court issued 0:15:45.400 --> 0:15:47.960 the writ to compel a district court to decide an 0:15:48.040 --> 0:15:51.680 undecided motion in a particular way. Does that put into 0:15:51.760 --> 0:15:56.760 context how odd this motion was at this time? Yes, 0:15:56.880 --> 0:16:00.880 this whole case has been extremely unusual for whole variety 0:16:00.880 --> 0:16:03.640 of reasons. And what it really turns on is this 0:16:03.720 --> 0:16:06.280 question of who has the right to determine whether a 0:16:06.360 --> 0:16:11.680 case should be dismissed. Essentially, the executive branch clearly has 0:16:11.720 --> 0:16:16.000 the authority to commence or to continue a prosecution. That's 0:16:16.040 --> 0:16:18.440 something that is up to the Department of Justice. But 0:16:18.600 --> 0:16:22.560 real four yate A requires leave of court before a 0:16:22.640 --> 0:16:26.200 case is dismissed. And that's exactly what this entire controversy 0:16:26.280 --> 0:16:29.000 is about. What does leave of court means? Does active 0:16:29.040 --> 0:16:32.400 the trial judge the authority to probe the Department of 0:16:32.480 --> 0:16:35.880 Justice for the reasons that they are dismissing a case, 0:16:36.040 --> 0:16:38.000 or does the trial judge that we have to accept 0:16:38.040 --> 0:16:42.000 the dismissal at face value and dismissed the case regardless 0:16:42.040 --> 0:16:45.120 of any concerns that the trialing judge may have about 0:16:45.160 --> 0:16:48.840 the motivation behind the Department of Justice's decisions. What were 0:16:48.840 --> 0:16:52.400 the dissents by two Republican appointees based on the on 0:16:52.600 --> 0:16:56.600 Bond decision, which is a decision by all ten active 0:16:56.640 --> 0:16:59.920 circuit judges that were not refused from the case, lie 0:17:00.200 --> 0:17:04.719 up against the two dissenting Republican appointees. Those two judges 0:17:04.760 --> 0:17:08.160 in May had formed the majority of a three judge 0:17:08.240 --> 0:17:12.439 panel that initially ruled in flann favor, and the first 0:17:12.600 --> 0:17:16.200 ruling by the three judge panel, the two judges in 0:17:16.240 --> 0:17:19.439 the majority found that the trial judge did not have 0:17:19.520 --> 0:17:22.520 the authority to question the decision by the Department of 0:17:22.640 --> 0:17:26.720 Justice to dismiss the case. In the opinion written by 0:17:26.760 --> 0:17:31.920 the two to one panel decision, Judge Rao had argued 0:17:32.080 --> 0:17:36.199 that there was no prosecution left here because there was 0:17:36.280 --> 0:17:39.840 no prosecutor. Essentially, that it is a Department of Justice 0:17:39.920 --> 0:17:42.639 is loan authority to decide whether to prosecute a case, 0:17:43.080 --> 0:17:46.000 and if they, for whatever reason, decide not to continue 0:17:46.000 --> 0:17:50.320 that prosecution, there is no prosecutor to argue the government 0:17:50.400 --> 0:17:52.919 side of the case, and therefore the case had to 0:17:52.920 --> 0:17:56.399 be dismissed. But what's really underlying all of this is 0:17:56.440 --> 0:17:59.480 not so much the final ruling. In other words, the 0:17:59.560 --> 0:18:02.960 question of whether or not the prosecution will continue, because 0:18:03.040 --> 0:18:06.240 it's unlikely that it will. What this hearing is really 0:18:06.280 --> 0:18:08.840 about is the question of whether or not the trial 0:18:09.000 --> 0:18:13.000 judge gets to probe into the reasoning behind the Department 0:18:13.000 --> 0:18:16.720 of Justice and decision to drop this case. Essentially, what 0:18:16.800 --> 0:18:20.960 the dissenting judges are arguing is that the trial judge 0:18:21.000 --> 0:18:24.960 does not have the authority to probe into the internal 0:18:25.000 --> 0:18:27.960 decision making by the Department of Justice, that that's an 0:18:27.960 --> 0:18:32.080 executive department decision and that what the court here is 0:18:32.080 --> 0:18:36.159 doing is usurping the authority of the Executive Department to 0:18:36.280 --> 0:18:40.360 decide whether or not to prosecute criminal cases. This is 0:18:40.440 --> 0:18:43.720 obviously a victory for Judge m It's Sullivan, but how 0:18:43.800 --> 0:18:46.439 much of a victory? And what I mean by that is, 0:18:46.840 --> 0:18:50.199 do the d C. Circuit Court define what kind of 0:18:50.240 --> 0:18:53.679 hearing he can hold? Can he actually dig into the 0:18:53.720 --> 0:18:58.880 administration's motives for dismissing the case against Flynn. What this 0:18:59.000 --> 0:19:02.359 ruling does is it sends the case back for consideration 0:19:02.440 --> 0:19:06.720 by Judge Sullivan. Judge Sullivan could dismiss the case as requested, 0:19:07.240 --> 0:19:10.560 or request that the case moved to sentencing and have 0:19:10.720 --> 0:19:13.320 some kind of hearing to determine whether or not the 0:19:13.359 --> 0:19:16.560 Department of Justice was correct in making a decision to 0:19:16.640 --> 0:19:20.440 drop this case. But the Court of Appeals also sent 0:19:20.520 --> 0:19:24.040 a very clear signal to the trial judge that they 0:19:24.080 --> 0:19:27.000 do not expect this hearing to turn into any kind 0:19:27.000 --> 0:19:29.720 of a circus. And in fact, the lawyer who was 0:19:29.760 --> 0:19:33.280 representing Judge Sullivan before the full Court of Appeals actually 0:19:33.320 --> 0:19:36.480 represented during the argument that there will be no discovery 0:19:36.520 --> 0:19:38.919 from the Department of Justice during any kind of sharing. 0:19:39.000 --> 0:19:41.439 There will be no evidentiary hearing, and in fact, she 0:19:41.560 --> 0:19:44.600 argued that the judge may well decide to dismiss this 0:19:44.720 --> 0:19:48.439 case after the party's simply filed briefs. The argument that 0:19:48.560 --> 0:19:51.439 was essentially made on behalf of Judge Sullivan was that 0:19:51.520 --> 0:19:53.960 it was premature at this point for the Court of 0:19:54.000 --> 0:19:57.439 Appeals to force him to dismiss the case since he 0:19:57.480 --> 0:20:00.720 had not yet even ruled on the govern meants motion 0:20:00.800 --> 0:20:03.600 to dismiss. So I've explained the motion from man Dams 0:20:03.960 --> 0:20:06.400 and what the d C Circuit ruled about it. Well, 0:20:06.440 --> 0:20:09.639 the opinion by the Full Court of Appeals really was 0:20:09.880 --> 0:20:14.080 a procedural decision. It really turned on the question of 0:20:14.080 --> 0:20:17.080 whether or not the Court of Appeals should be granting 0:20:17.119 --> 0:20:20.600 this rarely granted writ of mandamus, and a writ of 0:20:20.640 --> 0:20:24.960 mandamus is something that is only infrequently used. It was 0:20:25.000 --> 0:20:27.760 really not a surprise that the Full Court of Appeals 0:20:28.000 --> 0:20:30.840 ruled the way it did because in this case, Judge 0:20:30.840 --> 0:20:32.960 Sullivan had not actually done anything yet, he had not 0:20:33.040 --> 0:20:35.280 even had a hearing yet, he had not ruled against 0:20:35.320 --> 0:20:38.560 the Department of Justice's motion to dismissed. And so in 0:20:38.560 --> 0:20:42.840 this case it was difficult or really impossible for Flynn's 0:20:42.880 --> 0:20:45.040 lawyers to argue that they would have to be some 0:20:45.400 --> 0:20:50.080 manifest injustice if this writ of mandamus was not granted, 0:20:50.200 --> 0:20:53.240 and that they had no adequate alternative means in order 0:20:53.320 --> 0:20:57.359 to satisfy their claim or gain the release they were seeking. Here, 0:20:57.520 --> 0:21:00.399 the relief could simply come on appeal was back to 0:21:00.480 --> 0:21:03.240 Judge Sullivan. Judge Sullivan could make a decision, and what 0:21:03.280 --> 0:21:05.159 the Court of Appeal says is, if you don't like 0:21:05.200 --> 0:21:07.560 the decision he made, you could be right back before 0:21:07.560 --> 0:21:09.919 the Court of Appeals again and we will reconsider the 0:21:09.960 --> 0:21:12.240 case at that point. Is this one of the longest 0:21:12.280 --> 0:21:16.240 guilty please you've ever seen? Michael Flynn pleaded guilty in 0:21:16.320 --> 0:21:20.960 December of ten. Yeah, this case does have a rather 0:21:21.119 --> 0:21:25.320 convoluted history. It began with a guilty plea in twenty seventeen, 0:21:25.400 --> 0:21:28.919 where he admitteds align to FBI agents about his conversations 0:21:28.960 --> 0:21:31.840 with Russia's ambassador to the United States in the weeks 0:21:31.920 --> 0:21:35.720 leading up to President Trump's inauguration. Then General Flynn agreed 0:21:35.760 --> 0:21:39.920 to cooperate with Special Counsel Robert Mueller's investigation. Then he 0:21:40.000 --> 0:21:42.600 hired a new lawyer. In the twenty nineteen he began 0:21:42.680 --> 0:21:46.040 to retreat from his prior position trying to undo his 0:21:46.119 --> 0:21:49.639 guilty plea. Initially in the Department of Justice opposed efforts 0:21:49.680 --> 0:21:52.760 to withdraw the guilty plea, and then in an about face, 0:21:53.080 --> 0:21:56.080 took the position that the case should be dismissed. That's 0:21:56.119 --> 0:21:57.919 what led us to where we are today. But this 0:21:57.960 --> 0:22:01.080 has been a protracted battle where we've seen the defendant 0:22:01.080 --> 0:22:04.840 admit twice in court to lying to federal agents on 0:22:05.000 --> 0:22:07.880 Nan is now attracting his plea and wants the case 0:22:07.920 --> 0:22:11.640 to be dismissed. Interestingly, the Department of Justice is logic 0:22:11.720 --> 0:22:14.480 for dismissing the case is not the General Flynn did 0:22:14.480 --> 0:22:17.919 not lie the federal agents, but it's that it wasn't material. 0:22:18.240 --> 0:22:22.800 They essentially attack the investigation itself and said there was 0:22:22.840 --> 0:22:26.679 no basis for the interview of General Flynn at the time, 0:22:27.160 --> 0:22:30.800 and therefore the statements that Flynn made FBI agents, even 0:22:30.840 --> 0:22:33.720 if they were false, were not material to any matter 0:22:33.840 --> 0:22:37.119 under investigation. That's the basis of the Department of Justice 0:22:37.200 --> 0:22:40.680 has suggested to Judge Sullivan as the reasoning for their 0:22:40.680 --> 0:22:43.680 decision to drop this case. You know, Bob, if this 0:22:43.760 --> 0:22:47.280 case were at an earlier stage of the proceedings, not 0:22:47.440 --> 0:22:51.320 just at the point where the judge will sentence Flynn 0:22:51.640 --> 0:22:56.639 or dismiss the case. How could a court force prosecutors 0:22:56.680 --> 0:22:59.560 to continue with the case that they didn't want to 0:22:59.600 --> 0:23:03.520 proceed to trial on. Well, and that's exactly what the 0:23:03.720 --> 0:23:07.439 government has argued, what Flynn's lawyers have argued, and what 0:23:07.560 --> 0:23:12.399 the dissenting judges have argued. They're basically saying, dismissal of 0:23:12.480 --> 0:23:15.280 this case is inevitable. There is no way around it. 0:23:15.359 --> 0:23:17.760 You don't have a prosecutor here to argue the case 0:23:17.800 --> 0:23:21.080 on behalf of the government, and therefore the case can proceed. 0:23:21.359 --> 0:23:24.159 So why not we simply dismiss it now rather than 0:23:24.200 --> 0:23:27.640 have a hearing that is designed, according to the government 0:23:27.640 --> 0:23:30.280 and according to Flynn's lawyers, simply to try to embarrass 0:23:30.280 --> 0:23:33.200 the Department of Justice by peeling back the layers of 0:23:33.240 --> 0:23:36.040 their internal decision making and try to suggest that there 0:23:36.119 --> 0:23:39.919 was something improper about that decision. Did it strike you 0:23:40.000 --> 0:23:44.320