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Speaker 1: This is Bloomberg Law with June Brussel from Bloomberg Radio.

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Speaker 1: The House drew a line in the sand when Steve

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Speaker 1: Bannon defied a subpoena to testify before the Select Committee

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Speaker 1: investigating the January six Capital riots. You can't blow off

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Speaker 1: the United States Congress from your sofa and think you're

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Speaker 1: gonna get away with it. Democratic Congressman Jamie Raskin was

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Speaker 1: among the two representatives who voted to hold the former

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Speaker 1: White House Chief strategist in criminal contempt of Congress. Bannon

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Speaker 1: is considered a key witness because of his conversations with

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Speaker 1: former President Trump in the weeks leading up to January six,

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Speaker 1: and the ominous prediction Bannon made on his podcast the

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Speaker 1: day before the riots. All hell is going to break

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Speaker 1: loose tomorrow. Just understand this. All hell is going to

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Speaker 1: break loose tomorrow. It's not gonna happen like you think

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Speaker 1: it's gonna happen. Okay, It's gonna be quite extraordinary, really different.

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Speaker 1: And all I can say is strap in joining me

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Speaker 1: is former federal prosecutor Jennifer Rogers, who teaches at Columbia

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Speaker 1: Law School. Batten's lawyer has written to the committee and

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Speaker 1: said his client will not testify or provide other evidence

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Speaker 1: until the panel reaches an agreement with Trump or a

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Speaker 1: court ways in on executive privilege. How do you assess

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Speaker 1: that argument, Jennifer, Well, it really looks more like a

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Speaker 1: stalling tactic, in part because the committee wasn't negotiating with Trump.

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Speaker 1: They haven't heard anything from Trump about this, so it

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Speaker 1: really is just a way to say I'm not cooperating

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Speaker 1: at all. And also, you remember, executive privilege. While we

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Speaker 1: don't know the exact parameters of what it covers because

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Speaker 1: there hasn't been a lot of judicial decisions on that,

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Speaker 1: we do know that you can't just use it as

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Speaker 1: a blanket assertion. So they asked these Bannon for all

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Speaker 1: sorts of documents and for testimony about, you know, not

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Speaker 1: just one particular conversation, but a whole series of events.

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Speaker 1: So the notion that you and say executive privilege, I

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Speaker 1: don't have to show up at all, I don't have

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Speaker 1: to send anything in is ridiculous. It's really kind of

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Speaker 1: a moment by moment determination depending on who you're talking

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Speaker 1: to and what the document is about. So I think

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Speaker 1: those things combine suggests that Bannon is not really making

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Speaker 1: an assertion and good faith here, but instead it's kind

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Speaker 1: of asserting some sort of absolute immunity that borrows him

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Speaker 1: from having to do anything at all. Has a court

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Speaker 1: ever ruled that a conversation with a private citizen can

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Speaker 1: be covered by executive privilege? Not exactly. But the problem is,

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Speaker 1: there have been so few cases involving executive privilege, so

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Speaker 1: few fact patterns that have really been spun out and

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Speaker 1: determined by the court, that it's not a certain that

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Speaker 1: they would exclude executive privilege between a then president and

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Speaker 1: a close advisor, even if that person was a former advisor.

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Speaker 1: You know, we just don't know for sure. I think

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Speaker 1: it makes Bannon's claim to an executive privilege by far

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Speaker 1: the weakest one of all of these witnesses that the

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Speaker 1: Select Committee is looking to interview. But it's just not

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Speaker 1: a hundred percent decided. The House Speakers sent the matter

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Speaker 1: to the U S Attorney for d C. But the

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Speaker 1: Gealice Department doesn't have to prosecute, does it. They do

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Speaker 1: not have to prosecute. That's within the discretion of the

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Speaker 1: Department of Justice. And even though as you say, it

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Speaker 1: goes to the d C. U S. Attorney you better

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Speaker 1: believe it. Ultimately, that decision is being made by Marrick Garlands,

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Speaker 1: the attorney general. So they will consider, you know, the

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Speaker 1: strength of the case, the pros and cons, all of

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Speaker 1: the kind of circumstances surrounding it, and they will make

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Speaker 1: a decision. And they've made clear that it's their decision.

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Speaker 1: You know. Biden was asked by reporter if he thought

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Speaker 1: that Bannon should be prosecuted, if this should be pressed,

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Speaker 1: and he said yes, and d o j immediately came

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Speaker 1: out and said, this is our decision. We are not

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Speaker 1: being swayed by anyone else. We're going to make this

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Speaker 1: decision on its legal and factual merits. And so you know,

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Speaker 1: that's what they will try to do, trying to take

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Speaker 1: into account all of the circumstances surrounding this. Do they

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Speaker 1: have to call a grand jury at least or not

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Speaker 1: even that they don't have to even do that, And

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Speaker 1: in fact, because the crime that they would charge is

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Speaker 1: a misdemeanor crime, they don't even technically have to use

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Speaker 1: a grand jury, but I expect that they would because

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Speaker 1: it gives it a little bit more of a kind

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Speaker 1: of an official stamp of approval to take it to

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Speaker 1: a grand jury, but they don't have to do anything.

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Speaker 1: There have been a number of instances in the past

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Speaker 1: couple of decades where Congress has sent a criminal referral

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Speaker 1: for prosecution on contempt charges and d o J has

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Speaker 1: decided not to pursue those. So they certainly can say

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Speaker 1: they don't want to do it. I think they're more

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Speaker 1: likely to do this case than the examples in the

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Speaker 1: past that they have decided not to prosecute, But it's

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Speaker 1: up to them. The last time a person was charged

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Speaker 1: with contempt of Congress was in under the Reagan administration.

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Speaker 1: Why is it that this is so rarely used. I mean,

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Speaker 1: we've seen people defy Congress all the time, sort of

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Speaker 1: delutes congressional power. It really does. You know. Some of

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Speaker 1: it has to do with who's in control of the administration.

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Speaker 1: So there were lots of instances during the Trump administration

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Speaker 1: where witnesses would stone wall, you know, when the Democrats

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Speaker 1: had control of the House and we're doing investigations. But

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Speaker 1: there was just no way that the Department of Justice

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Speaker 1: under Trump Bill Barr's Department of Justice was ever going

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Speaker 1: to press a criminal case for contempt of Congress against

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Speaker 1: the Trump administration person right. So some of it is

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Speaker 1: because of kind of what parties are involved and who's

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Speaker 1: in charge. But I also think that it's just the

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Speaker 1: way that it has developed that these things happen. It's

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Speaker 1: really unfortunate that most of the time when Congress wants

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Speaker 1: to speak to someone or wants documents, they negotiate, they

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Speaker 1: reached some sort of concession or agreement about that, and

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Speaker 1: what's happened is when they don't, the clock just kind

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Speaker 1: of runs out. You know, houses only in session for

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Speaker 1: two years, it changes hands a lot. So it's just

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Speaker 1: become this real problem with Congress trying to conduct its

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Speaker 1: oversight responsibilities. And that's why a lot of Democratic members

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Speaker 1: of the House are calling for legislation so that at minimum,

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Speaker 1: you know, this wouldn't really encourage the d o J

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Speaker 1: to prosecute necessarily, but at least to get judicial scrutiny

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Speaker 1: more quickly to expedite judicial treatment. If Congress goes to

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Speaker 1: the courts to try to get a subpoena enforced, that

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Speaker 1: that would happen more quickly, because the running out of

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Speaker 1: the clock is really the biggest problem here. So if

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Speaker 1: the Justice Department decides to prosecute Bannon. Could that take

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Speaker 1: months years, not years, multiple but probably around a year.

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Speaker 1: I mean it will be a federal criminal case, so

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Speaker 1: there are a lot of steps that have to be

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Speaker 1: gone through for due process, etcetera. The judge is not

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Speaker 1: going to be immediately in a position to set a

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Speaker 1: trial date. So a federal criminal case of this complexity,

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Speaker 1: and don't think this is a particularly complex case, I

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Speaker 1: would say would take around a year. But remember that

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Speaker 1: doesn't really have anything to do with whether Bannon changes

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Speaker 1: his mind and decides to cooperate or not. The criminal

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Speaker 1: contempt is essentially a punishment for his current refusal to cooperate,

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Speaker 1: so it doesn't force him in any way to honor

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Speaker 1: the subpoena and to cooperate. So so the House Select

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Speaker 1: Committee is still sitting there without its documents and without

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Speaker 1: its witness, even if at the same time d o

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Speaker 1: J is pursuing a criminal case against Bannon. So if

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Speaker 1: he can just hold out absolutely and even if he's

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Speaker 1: found guilty and sentenced and sent to prison, none of

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Speaker 1: that changes the fact that he hasn't done what it

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Speaker 1: is that they want him to do. Now, there's a

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Speaker 1: separate way to speak contempt which is a civil contempt

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Speaker 1: or you can actually put someone in prison to basically

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Speaker 1: coerce them into testify. And they have not chosen to

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Speaker 1: pursue that route. They're going the criminal way, and that

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Speaker 1: weighs effectively a punishment for what he's doing now, not

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Speaker 1: a coercive attempt to force him in to cooperate. It's interesting,

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Speaker 1: I would think that they would rather force him to cooperate.

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Speaker 1: You know, you have to demonstrate that there is a

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Speaker 1: likelihood that you'll get what you're after, that there's a

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Speaker 1: likelihood that if you put the person in prison in

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Speaker 1: order to coerce them to testify, that they will do so.

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Speaker 1: And so I don't know why it is that they

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Speaker 1: haven't pursued that avenue against Steve Bannon. I think maybe

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Speaker 1: they want the I don't know if you call it

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Speaker 1: the cover, but they want the kind of stamp of

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Speaker 1: approval of a grand jury indicting him, it being in

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Speaker 1: front of the courts where he gets his due process.

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Speaker 1: You know. I think maybe they feel like putting someone

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Speaker 1: like Steve Bannon so close to former President Trump in

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Speaker 1: prison to force him into testifying would be a step

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Speaker 1: further than they're looking to go. Right now. So let's

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Speaker 1: turn now to another case of executive privilege. Trump is

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Speaker 1: trying to stop the Archives from releasing his paper. Explain

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Speaker 1: his claim of executive privilege here. So he's trying to

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Speaker 1: stop the National Archive from handing over sets of materials

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Speaker 1: involving communications around what happened on January six, effectively, so

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Speaker 1: you know, they collect these communications, email communications and the like,

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Speaker 1: you know, visitor logs from the White House on important days, etcetera.

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Speaker 1: And he doesn't want any of that to become known

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Speaker 1: to the publicers to the Select Committee, claiming that it

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Speaker 1: would violate his executive privilege, which effectively protects communications among

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Speaker 1: the president and his close aids in the executive branch

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Speaker 1: about matters of presidential importance. So the president and his

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Speaker 1: aids are talking about, you know, should we take a

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Speaker 1: military action or should we do this national security thing.

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Speaker 1: Those are things that the courts feel like they want protected.

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Speaker 1: You know, they don't want a president to be worried

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Speaker 1: when he's talking to his advisors that that inform aation

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Speaker 1: might someday come out. So that's effectively the executive privilege,

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Speaker 1: but it doesn't cover everything, you know, it doesn't cover

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Speaker 1: for example, conversations between him and people who are not

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Speaker 1: his aids, And it doesn't cover things that are not

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Speaker 1: kind of within the core of a president's authority and

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Speaker 1: a president's job. So it is limited. And so the

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Speaker 1: fact that he wants to withhold things like the visitor logs,

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Speaker 1: for example, that's not going to fly because there's no

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Speaker 1: reason that that would be subject to an executive privilege.

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Speaker 1: Executive privilege really is about the content of communication. So

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Speaker 1: here you have a former president saying he wants to

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Speaker 1: exert executive privilege and the current president saying he doesn't

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Speaker 1: want to exert executive privilege. Here are there cases where

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Speaker 1: former versus president are wide and who has the privilege,

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Speaker 1: So there are Back when this was being litigated in

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Speaker 1: relation to form of President Nixon, the Supreme Court did

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Speaker 1: talk about this issue. Usually, the current president has the privilege,

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Speaker 1: has the right to either wave or assert the privilege

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Speaker 1: because it's viewed to be an institutional thing. Right. You

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Speaker 1: want to protect the presidency and the president, no matter

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Speaker 1: who it is at the time, their ability to consult

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Speaker 1: freely with their close advisors. So the current president holds

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Speaker 1: that privilege. Now, the Supreme Court did say that in theory,

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Speaker 1: they could see a former president having an interest in

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Speaker 1: an ability to assert the privilege, but where the current

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Speaker 1: president then disagrees and doesn't want to assert the privilege,

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Speaker 1: the current president assertion would have more weight, although they

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Speaker 1: didn't discount the possibility that you could have a scenario

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Speaker 1: where a former president's assertion might be granted, but that

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Speaker 1: hasn't been done. In the Nixon case, Nixon wanted the privilege,

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Speaker 1: current president did not want the privilege, and ultimately they

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Speaker 1: ruled that there was no privilege, but they did kind

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Speaker 1: of hold out that possible hope that in theory, there

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Speaker 1: could be a case like that at some point. So

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Speaker 1: it's not a certain Does it make a difference that

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Speaker 1: it's an investigation into a possible abuse of power by

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Speaker 1: the former president, you know, if he really was encouraging

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Speaker 1: the January six rioters, You know, I think it does.

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Speaker 1: The problem is it's hard to know what the communications

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Speaker 1: are about until you know what the communications are. But yes,

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Speaker 1: I mean that theory holds, and that was another one

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Speaker 1: of the findings of the Supreme Court in the Nixon case.

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Speaker 1: When you're talking about either criminal behavior or behavior that

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Speaker 1: just is not within the president's authority, then you're not

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Speaker 1: supposed to have executive privilege over those kinds of communications.

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Speaker 1: So in a case where the president is you say,

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Speaker 1: is abusing his authority, is trying to hold on to

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Speaker 1: power to overturn an election, you know whether or not

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Speaker 1: those are technically crimes pursued into the federal criminal Code,

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Speaker 1: you wouldn't think that an assertion of executive privilege would

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Speaker 1: be appropriate there. And indeed, that's more or less what

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Speaker 1: President Biden has said. This was an extraordinary circumstance, really

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Speaker 1: in an undercutting of our democracy, and so we need

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Speaker 1: to know what happened here. You know, this is not

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Speaker 1: your run of the mill. Are we going to bomb

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Speaker 1: this country? Are we going to do this sort of

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Speaker 1: thing that is within the heartland of what you would

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Speaker 1: want that kind of confidentiality with your advisors. This is

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Speaker 1: something nefarious, This is something improper, and so we need

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Speaker 1: to know what happened. So I think you're right to

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Speaker 1: say that that also factors into the legitimacy of executive privilege.

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Speaker 1: What was it about? Is it about something you want

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Speaker 1: protected or is it about something that you feel quite

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Speaker 1: to the contrary needs to see the light of day.

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Speaker 1: Trump also claims the committee subpoena is invalid because the

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Speaker 1: committee has no power of investigation. That was an argument

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Speaker 1: he made his lawyers made during some other lawsuits or

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Speaker 1: Trump's presidency. It will not carry the day for sure.

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Speaker 1: I mean, they don't investigate in the way that law

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Speaker 1: enforcement investigates, but they do investigating connection with their legislative powers.

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Speaker 1: And in fact, I think the House is very interested

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Speaker 1: in thinking about ways that they can establish some guardrails

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Speaker 1: to avoid this sort of thing in the future. For example,

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Speaker 1: you know, they're looking at this question of stonewalling and

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Speaker 1: whether they want to try to pass legislation that requires

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Speaker 1: expedity handling in courts of cases involving congressional subatoinas. They

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Speaker 1: may want to establish legislation around you know, who has

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Speaker 1: power to bring in the National Guard if there's some

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Speaker 1: sort of problem at the capital like happened on January six.

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Speaker 1: So they do need some sort of legislative purpose when

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Speaker 1: they are doing this kind of thing, but that's easy

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Speaker 1: to find. You know, they can always say they're looking

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Speaker 1: to legislate, and in fact, in this case they really are.

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Speaker 1: They really are looking for ways to avoid what happened

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Speaker 1: here and to do that through passing lots. So Trump

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Speaker 1: seems to be using the courts as he always has

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Speaker 1: to run out the clock, perhaps until a change in

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Speaker 1: leadership of the House during the mid terms. Can this

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Speaker 1: be done expeditiously? Will the courts do this fast or

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Speaker 1: is it impossible? Well, they can do it fast, I mean,

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Speaker 1: courts can work quickly. They just don't always do that.

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Speaker 1: And you know, you won't have a final determination, like

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Speaker 1: on Trump's lawsuit about the contours of executive privilege. We

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Speaker 1: won't know the final word until and unless this gets

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Speaker 1: all the way to the Supreme Court, frankly for their

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Speaker 1: ruling on it. But that doesn't mean that things can't happen.

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Speaker 1: I mean, Steve Bannon may be able to run out

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Speaker 1: the clock if he refuses to cooperate. Even if he's

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Speaker 1: convicted and sentenced to prison. As I said, he doesn't

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Speaker 1: have to cooperate, So he may be able to run

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Speaker 1: out the clock. But the Select Committee can continue their

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Speaker 1: work and seek information that is clearly not subject to

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Speaker 1: executive privilege. And I think that there is enough of

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Speaker 1: that kind of information that they will get a fairly

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Speaker 1: full picture of what happened on January six, as long

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Speaker 1: as they pressed for the information that is about this

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Speaker 1: event that should not be protected by the privilege, then

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Speaker 1: I think they can. They can get what they need,

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Speaker 1: but they do need to keep pushing, to move quickly

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Speaker 1: and to act aggressively, or you know, you're right, the

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Speaker 1: tick tick ticking of the clock will eventually catch up

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Speaker 1: with them. The National Archives told Trump it will turn

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Speaker 1: over the records to Congress on November twelve unless a

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Speaker 1: court steps in. So if the judge doesn't issue an injunction,

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Speaker 1: and if the appellate court doesn't step in, then his

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Speaker 1: concerns will be ignored and they'll turn over the papers.

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Speaker 1: That's right. This is kind of the flip side of

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Speaker 1: what happened pretty frequently during the Trump administration. And you know,

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Speaker 1: you need an injunction to to stop whatever the action,

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Speaker 1: and so here he needs an injunction to stop the

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Speaker 1: National Archives from turning over the information, and he can

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Speaker 1: only get one, by the way, according to the legal

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Speaker 1: standards of injunction, if he can prove that he has

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Speaker 1: a likelihood of success on the merit. Thanks Jennifer. That's

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Speaker 1: former federal prosecutor Jennifer Rogers. It's the first prosecution related

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Speaker 1: to the two seven thirty seven Max crashes that killed

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Speaker 1: three forty six people in Bowen's former chief test pilot,

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Speaker 1: Mark Forkner, has been charged with deceiving federal regulators about

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Speaker 1: the flight control system that was later linked to both tragedies.

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Speaker 1: After Forlkner pleaded not guilty, his attorney, David Gurger, said

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Speaker 1: his client did not lie and did not cause the crashes.

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Speaker 1: Everyone who was effective by this tragedy deserved a search

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Speaker 1: for the truth, not a search for escapegoat. Joining me

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Speaker 1: is former federal prosecute and Mark Little, a partner at

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Speaker 1: Nixon Peabody, tell us about the charges that Faulkner is facing.

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Speaker 1: The charges are really twofold. One is charges related to

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Speaker 1: false statements and intend to a defraud regarding false writings

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Speaker 1: or certifications records regarding an aircraft part. And that's a

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Speaker 1: statute that's not normally used, but it's basically titled fraud

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Speaker 1: involving aircraft parts in interstate commerce. That's counts one through two,

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Speaker 1: Counts three through six, or wire fraud counts. Wire fraud

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Speaker 1: is an allegation that someone had a scheme and artists

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Speaker 1: to defraud and obtained money and property by false and

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Speaker 1: fraudulent pretenses, and that's the whole indictment. Of the six

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Speaker 1: count indictment. There's also a forfeiture notice whether trying to

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Speaker 1: collect any money that was gained as a result of

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Speaker 1: this alleged crime are traceable to those offenses. Mark prosecutors

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Speaker 1: have a trail of what seems like incriminating email from

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Speaker 1: Faulkner complaining about the max software system, the m cast

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Speaker 1: that it was quote designed by clowns who in turn

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Speaker 1: are supervised by monkeys, and bragging about using Jedi mind

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Speaker 1: tricks on regulators. Will those be an important part of

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Speaker 1: the case against him, Well, it depends, you know, certainly,

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Speaker 1: the cases an example that continues to show up in

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Speaker 1: the modern era with email and electronic communications, where people

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Speaker 1: sort of just say what's on their mind and don't

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Speaker 1: think about what they're saying. So there's certainly some of

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Speaker 1: those statements by Forkner are gonna be embarrassing. I would

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Speaker 1: expect that the government try to use those to the

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Speaker 1: extent that they put knowledge in Forker's head about the

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Speaker 1: end cast failure or the end cast stimulation that he

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Speaker 1: learned about. I expect that defense attorneys would try to

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Speaker 1: limit that because it might be prejudicial or not relevant

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Speaker 1: really to the charges. In one, he says, I basically

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Speaker 1: lied to the regulators unknowingly. Does that cut for him

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Speaker 1: or against him? He cuts both ways. The way it

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Speaker 1: cuts against him is it's his statement acknowledging that he's

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Speaker 1: received this new disclosure internally about where the MCAST operates

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Speaker 1: and what circumstances, which is significantly broader than what Boeing

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Speaker 1: had previously known and or disclosed the f A. Hey,

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Speaker 1: so it goes against him in that way. It's that's

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Speaker 1: the marker where he's saying he knew about this, and

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Speaker 1: it sets the stage for future allegations that later on

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Speaker 1: he didn't tell the FAY about it. It goes for

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Speaker 1: him because this word that he added unknowingly is sort

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Speaker 1: of his statement that like, Wow, I've had all these

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Speaker 1: conversations the FAA and they told me all this stuff

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Speaker 1: internally about the MCAST, but now it's different, and now

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Speaker 1: they're gonna stay highlife. I didn't lie, you know, I

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Speaker 1: just didn't know about it. The email about Jedi mind

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Speaker 1: tricking regulators was to an f a A official. Does

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Speaker 1: that seem to suggest that the f A A new

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Speaker 1: or should have known about changes to the end casts.

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Speaker 1: It wasn't like the FAA was totally in the dark here. Yeah,

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Speaker 1: this is a challenging indictment for the government to bring

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Speaker 1: on a number of levels. But clearly before any of

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Speaker 1: these charges came out, obviously, during the scope of the

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Speaker 1: FA's investigations of those two crashes and how they occurred,

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Speaker 1: clearly there were a lot of criticism of the f

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Speaker 1: A certification process that they weren't hands on, that they

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Speaker 1: weren't involved in certifying aircraft enough that as a regulator

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Speaker 1: there should have been much more involved. This Jedi mind

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Speaker 1: statement puts a number of people in the f A

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Speaker 1: a unnoticed that they should have looked harder at this.

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Speaker 1: They should have taken this and said, wait, what do

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Speaker 1: we got here? So clearly, when Forkner goes on trial,

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Speaker 1: there's going to be a lot of effort by his attorneys.

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Speaker 1: I would expect to actually put the FAY on trial.

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Speaker 1: Forkner is a mid level employee. It's kind of hard

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Speaker 1: to imagine that all this happened solely because of his

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Speaker 1: actions or in actions. That's right, but that's one of

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Speaker 1: the real shortcomings of trying to chards one person in

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Speaker 1: an environment where when you look at the indictment itself,

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Speaker 1: there's some emails by him where he's worried that he's

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Speaker 1: going to cost Bowing millions of dollars, And clearly there's

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Speaker 1: an environment there where you've got an employee who's worried

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Speaker 1: about that, and maybe that's infringing his judgment. But more

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Speaker 1: to the legal point, these wire fraud counts and this

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Speaker 1: FA A fraud account. Critical elements of these charges are

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Speaker 1: that Porker intended to defraud somebody of money or property.

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Speaker 1: That's going to be really difficult. It's clear that he lied,

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Speaker 1: and it's clear that he made some false statements and omissions,

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Speaker 1: mostly omissions, but to say that he wanted to sort

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Speaker 1: of make money through those lives, it looks apparently that

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Speaker 1: he's a mid level employees worried about his reputation or

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Speaker 1: worried about a reputation that results in people saying he

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Speaker 1: cost the company money. And that's not enough to say

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Speaker 1: he intended to defraud airline customers of Bowing. What are

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Speaker 1: the other elements that esecutors have to prove? For example,

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Speaker 1: is materiality an element? It is? Materiality is an element

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Speaker 1: in every fraud case, and they're going to have to

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Speaker 1: show that but for these false statements, things would have

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Speaker 1: been different. It's really hard to say, because all of

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Speaker 1: the statements in the indictment that allege Forkner committed fraud,

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Speaker 1: they're really about omission. They describe a couple of different

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Speaker 1: interactions that Forkner have the essay after he learned about

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Speaker 1: the m casts problems, where he didn't disclose it, and

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Speaker 1: what is the context of those conversations. It's really rare

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Speaker 1: to charge a case just based on omissions. Usually you're

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Speaker 1: looking for affirmative false statements, and omissions make it difficult

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Speaker 1: to prove that somebody had a material fall statement too.

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Speaker 1: I want to talk about Boeing settlement with the Justice Department,

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Speaker 1: which didn't cite Forkner by name. How will that play

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Speaker 1: or will it play into his case? No, I haven't

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Speaker 1: been able to review the settlement that much, but it's

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Speaker 1: certainly going to play a role. I think generally for

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Speaker 1: a defense of an individual to have a company workners

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Speaker 1: certainly likely to blame Bowing and the pressures he received internally.

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Speaker 1: Um as he noted in some of his emails uh

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Speaker 1: that that he had pressure to to not cost the

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Speaker 1: company money and the defense attorney is going to, you know,

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Speaker 1: maybe not legally have a basis to bring Bing into

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Speaker 1: the matter, but it's certainly going to be something that's

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Speaker 1: going to be in the background of the trial about

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Speaker 1: how did someone how did this large company just have

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Speaker 1: one person end up being charged criminally? And how did

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Speaker 1: you know? What were the terms of Boeing's admissions? Did

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Speaker 1: Bing make any admissions in that settlement? There's certainly their

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Speaker 1: payment of money. Um. Is it fair? The defense attorney

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Speaker 1: might raise, is it fair that Bowing doesn't receive criminal

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Speaker 1: charges um? When a mid level employee does for what

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Speaker 1: is what looks like appears to be an institation institutional breakdown.

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Speaker 1: So will the jury have to believe that he was

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Speaker 1: a rogue employee who was carrying this out by himself

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Speaker 1: or can they believe others were at fault as well

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00:25:23,440 --> 00:25:27,119
Speaker 1: and still find him guilty? The jury can can believe

433
00:25:27,119 --> 00:25:29,720
Speaker 1: that others were at fault as well and still find

434
00:25:29,800 --> 00:25:34,199
Speaker 1: him guilty. It just goes to um the sense of

435
00:25:35,600 --> 00:25:38,920
Speaker 1: I think the arguments that the defense attorneys are likely

436
00:25:38,960 --> 00:25:43,200
Speaker 1: to make are that the jury will appeal to the

437
00:25:43,280 --> 00:25:47,040
Speaker 1: jury's sense of fairness and a jury can you know,

438
00:25:47,200 --> 00:25:49,960
Speaker 1: jury can nullify a verdict for any reason. Now there's

439
00:25:50,160 --> 00:25:54,000
Speaker 1: they're biggert instructions from the court to follow the instructions

440
00:25:54,000 --> 00:25:57,800
Speaker 1: and apply the elements of each charge to the facts

441
00:25:57,840 --> 00:26:01,320
Speaker 1: proven at the trial. But if the jury gets the

442
00:26:01,400 --> 00:26:05,240
Speaker 1: sense that there's not fairness here, it could really go

443
00:26:05,359 --> 00:26:09,000
Speaker 1: the wrong way for the government. You're a former federal prosecutor,

444
00:26:09,040 --> 00:26:12,639
Speaker 1: would you rather be the prosecution or the defense? Which

445
00:26:12,680 --> 00:26:19,479
Speaker 1: side do you think has a stronger case? Well, you know, uh,

446
00:26:19,640 --> 00:26:22,199
Speaker 1: this this would be a tough one because you know,

447
00:26:22,320 --> 00:26:26,560
Speaker 1: in this case, the crashes were so tragic, the loss

448
00:26:26,600 --> 00:26:34,640
Speaker 1: of life um unnecessarily occurred, and clearly Faulkner had knowledge

449
00:26:34,760 --> 00:26:38,439
Speaker 1: of this problem that could have prevented those crashes. But

450
00:26:38,560 --> 00:26:42,840
Speaker 1: it's clear that many other people new or should have

451
00:26:42,880 --> 00:26:46,000
Speaker 1: known about this. And the defense are going to make

452
00:26:46,240 --> 00:26:49,639
Speaker 1: a real big part of this case about the f

453
00:26:49,800 --> 00:26:52,119
Speaker 1: a A and those fa A agents are going to

454
00:26:52,240 --> 00:26:55,040
Speaker 1: have to testify a trial, and they're going to be

455
00:26:55,480 --> 00:27:00,639
Speaker 1: you know, scorched on cross examination, and it's it's likely

456
00:27:01,320 --> 00:27:05,919
Speaker 1: I would think Partner could be convicted even if Feathers

457
00:27:06,200 --> 00:27:10,160
Speaker 1: weren't charged. We're not charged were involved, We're not charged

458
00:27:10,160 --> 00:27:12,679
Speaker 1: in the case. But I think that the jury, it's

459
00:27:12,720 --> 00:27:14,760
Speaker 1: going to be tough for the jury, you know, to

460
00:27:14,880 --> 00:27:18,000
Speaker 1: go forward U if if the defense is able to

461
00:27:18,040 --> 00:27:21,200
Speaker 1: get into their arguments, the fact that partner is kind

462
00:27:21,200 --> 00:27:24,679
Speaker 1: of a scapegoat. Is there a possible There's always a

463
00:27:24,680 --> 00:27:27,720
Speaker 1: possibility of a plea. Do you think that the prosecutors

464
00:27:27,800 --> 00:27:31,600
Speaker 1: might be looking to flip him? Uh? They might. This

465
00:27:31,680 --> 00:27:35,879
Speaker 1: was a but this was a pretty extensive investigation. And

466
00:27:35,920 --> 00:27:38,199
Speaker 1: when the company entered into the settlement, and again I

467
00:27:38,240 --> 00:27:41,840
Speaker 1: haven't read the terms of going settlement, it would appear

468
00:27:41,880 --> 00:27:45,760
Speaker 1: that Boeing did a pretty extensive internal investigation and cooperated

469
00:27:45,920 --> 00:27:49,720
Speaker 1: with the government um extensively. So I would think that

470
00:27:50,440 --> 00:27:52,280
Speaker 1: I would think that they have all the information that

471
00:27:52,400 --> 00:27:54,200
Speaker 1: this is probably going to be the only charge coming

472
00:27:54,240 --> 00:27:58,040
Speaker 1: out of it. Really, because even Peter de Fazio, the

473
00:27:58,320 --> 00:28:01,399
Speaker 1: Democrat from Oregon said, see new leaders throughout Boeing are

474
00:28:01,480 --> 00:28:05,359
Speaker 1: responsible for the culture of concealment that ultimately led to

475
00:28:05,400 --> 00:28:09,800
Speaker 1: this Max crashes. He's saying, this shouldn't be the only indictment.

476
00:28:10,520 --> 00:28:12,760
Speaker 1: I think he's right. I think it shouldn't be the

477
00:28:12,800 --> 00:28:16,479
Speaker 1: only indictment. But from reading the fact that you know Boing,

478
00:28:16,600 --> 00:28:20,920
Speaker 1: that that Boeing was allowed to settle and at Boings UM,

479
00:28:21,800 --> 00:28:24,639
Speaker 1: I would expect Boeing would have done a really thorough

480
00:28:24,840 --> 00:28:28,240
Speaker 1: internal investigation into their compliance and that they would have

481
00:28:28,280 --> 00:28:31,160
Speaker 1: done extent to be allowed to settle like this, they

482
00:28:31,160 --> 00:28:34,840
Speaker 1: would have extensively cooperated with the government. So my expectation,

483
00:28:34,880 --> 00:28:38,400
Speaker 1: and based on my experience, the charges that came out

484
00:28:38,440 --> 00:28:42,120
Speaker 1: now would have been inclusive of of all of the

485
00:28:42,160 --> 00:28:44,479
Speaker 1: people they felt they could make a charge and had

486
00:28:44,520 --> 00:28:47,440
Speaker 1: a reasonably likely and a conviction at trial. Things could change,

487
00:28:47,440 --> 00:28:52,240
Speaker 1: of course, and partner maybe could provide conversations that weren't recorded,

488
00:28:52,640 --> 00:28:55,080
Speaker 1: you know, an email or something that the government doesn't have,

489
00:28:55,200 --> 00:28:58,000
Speaker 1: So of course that could always happen. But I'm surprised

490
00:28:58,000 --> 00:29:01,800
Speaker 1: it's only partner. But I would also be surprised if

491
00:29:01,960 --> 00:29:06,120
Speaker 1: other people were charged in this case. What kind of

492
00:29:06,160 --> 00:29:10,520
Speaker 1: sentence is he looking at? You know, the sentencing guidelines

493
00:29:10,560 --> 00:29:14,960
Speaker 1: are with fraud cases are triggered and tied to what

494
00:29:15,120 --> 00:29:19,160
Speaker 1: the loss amount was to the victim of the crime. Um.

495
00:29:19,160 --> 00:29:22,520
Speaker 1: But if he gets convicted and they're at sentencing, the

496
00:29:22,560 --> 00:29:24,360
Speaker 1: defense and the prosecution are going to have a lot

497
00:29:24,360 --> 00:29:30,480
Speaker 1: of sparring over um. You know, whether whether Fortner is

498
00:29:30,520 --> 00:29:36,400
Speaker 1: accountable for the loss that that these airlines suffered as

499
00:29:36,400 --> 00:29:39,040
Speaker 1: a result of the crashes. I was to the liability

500
00:29:39,080 --> 00:29:43,680
Speaker 1: to passengers. Uh. And you know that that also that

501
00:29:43,720 --> 00:29:49,880
Speaker 1: Boeing settlement two point five billion um. You know clearly

502
00:29:49,920 --> 00:29:53,800
Speaker 1: Boeing is providing that amount. And I think that you know,

503
00:29:53,880 --> 00:29:56,920
Speaker 1: he's gonna partner would argue after if he got convicted

504
00:29:57,160 --> 00:30:01,360
Speaker 1: that sentencing that he wasn't responsible these losses. He would

505
00:30:01,400 --> 00:30:04,200
Speaker 1: argue for a much lower sentence than maybe the guidelines,

506
00:30:04,560 --> 00:30:09,120
Speaker 1: and which the guidelines are tied two the loss amount. Otherwise,

507
00:30:09,280 --> 00:30:11,560
Speaker 1: if it's the whole amount, he's gonna he's gonna have

508
00:30:11,680 --> 00:30:15,320
Speaker 1: very high guidelines, probably up to life in prison. I

509
00:30:15,360 --> 00:30:17,920
Speaker 1: don't expect the judge to give him that amount of time.

510
00:30:18,440 --> 00:30:20,880
Speaker 1: I think a judge would probably look at this and

511
00:30:20,920 --> 00:30:24,200
Speaker 1: find he was a mid level employee, but there certainly

512
00:30:24,280 --> 00:30:27,440
Speaker 1: was a lot of loss of life, and you know,

513
00:30:27,880 --> 00:30:30,520
Speaker 1: the number of people who died in these crashes is

514
00:30:30,720 --> 00:30:34,560
Speaker 1: you know, really horrific. So I would expect a significant sentence,

515
00:30:34,800 --> 00:30:37,600
Speaker 1: maybe between five and ten years. I think there's one

516
00:30:37,640 --> 00:30:42,240
Speaker 1: thing that I would add, and that is, like, there

517
00:30:42,280 --> 00:30:47,920
Speaker 1: are significant appellate issues in this case, and it has

518
00:30:47,920 --> 00:30:50,840
Speaker 1: to it has first starts with the wire fraud statute,

519
00:30:51,680 --> 00:30:54,840
Speaker 1: and if you look at the history of the cases,

520
00:30:55,800 --> 00:30:59,040
Speaker 1: there have been significant limitations of the wire fraud statute

521
00:30:59,600 --> 00:31:03,280
Speaker 1: UM by the Supreme Court UM. And the most recent

522
00:31:03,320 --> 00:31:05,720
Speaker 1: one which people are familiar with is the Bridge Gate

523
00:31:05,920 --> 00:31:11,280
Speaker 1: case where some employees of New Jersey Governor Chris Christie

524
00:31:11,520 --> 00:31:17,760
Speaker 1: tried to um maneuver the port authority lanes to narrow

525
00:31:17,840 --> 00:31:19,840
Speaker 1: to get back at a at a local mayor who

526
00:31:19,880 --> 00:31:25,440
Speaker 1: wasn't supporting of Governor Christie's campaign. UM. The Supreme Court

527
00:31:25,520 --> 00:31:30,200
Speaker 1: through those wire frauds. Those wire fraud convictions out because

528
00:31:30,800 --> 00:31:33,800
Speaker 1: the key word in the wire fraud statute are a

529
00:31:33,840 --> 00:31:36,960
Speaker 1: steam or artist to deprive someone of money or property,

530
00:31:37,320 --> 00:31:42,240
Speaker 1: money or property UM. And they alleged that Workner um

531
00:31:42,400 --> 00:31:48,080
Speaker 1: defrauded the airlines. The customers are bowing of money or property.

532
00:31:48,800 --> 00:31:52,840
Speaker 1: And you know, in this case, it's going to be

533
00:31:52,880 --> 00:31:57,360
Speaker 1: hard to say, how did Faulkner, how does Workner intend

534
00:31:58,040 --> 00:32:02,240
Speaker 1: to defraud? Those are one It's really kind of hard

535
00:32:02,280 --> 00:32:05,360
Speaker 1: to say that when it's pretty clear from his emails

536
00:32:05,400 --> 00:32:08,840
Speaker 1: he was worried about his personal reputation within the company.

537
00:32:09,080 --> 00:32:12,240
Speaker 1: But it's really going to be hard for the government

538
00:32:12,320 --> 00:32:16,560
Speaker 1: to prove if Wawkner really wanted to rip off customers

539
00:32:16,600 --> 00:32:19,520
Speaker 1: of Boeing Um and that's where the rub is in

540
00:32:19,600 --> 00:32:21,360
Speaker 1: the case, and that's where the rub will be on

541
00:32:21,480 --> 00:32:26,720
Speaker 1: appeal um. And you know, with regard to regulatory cases

542
00:32:26,840 --> 00:32:30,120
Speaker 1: or licenses that the courts have, there's a particular case

543
00:32:30,160 --> 00:32:34,160
Speaker 1: in the Fifth Circuit in Louisiana where someone was alleged

544
00:32:34,200 --> 00:32:42,120
Speaker 1: to have defrauded a license for casino, the regulator for

545
00:32:42,200 --> 00:32:45,840
Speaker 1: casinos and defrauded them into issuing a license in the

546
00:32:45,880 --> 00:32:49,320
Speaker 1: Supreme Court. The courts in Louisiana Fifth Circuit Court of

547
00:32:49,360 --> 00:32:53,800
Speaker 1: Appeals rule that a license, our regulatory function is not

548
00:32:54,800 --> 00:32:58,440
Speaker 1: property under the Wire Frost statutes. So there are significant

549
00:32:58,640 --> 00:33:02,200
Speaker 1: appellate issues at play in this indictment, and I would

550
00:33:02,200 --> 00:33:05,720
Speaker 1: expect there'd be facial arguments over whether or not Wortner

551
00:33:05,840 --> 00:33:11,480
Speaker 1: really intended to defraud the customers of of Boeing. Thanks Mark,

552
00:33:11,720 --> 00:33:14,680
Speaker 1: that's Mark Little of Nixon Peabody And that's it for

553
00:33:14,720 --> 00:33:17,160
Speaker 1: the edition of the Bloomberg Law Show. Remember you can

554
00:33:17,160 --> 00:33:19,560
Speaker 1: always get the latest legal news on our Bloomberg Law

555
00:33:19,640 --> 00:33:23,200
Speaker 1: Podcast wherever you get your favorite podcast. I'm June Grosso

556
00:33:23,280 --> 00:33:24,600
Speaker 1: and you're listening to Bloomberg