WEBVTT - Will Justice Department Prosecute Steve Bannon? 0:00:03.200 --> 0:00:07.960 This is Bloomberg Law with June Brussel from Bloomberg Radio. 0:00:09.200 --> 0:00:11.600 The House drew a line in the sand when Steve 0:00:11.680 --> 0:00:15.240 Bannon defied a subpoena to testify before the Select Committee 0:00:15.280 --> 0:00:20.160 investigating the January six Capital riots. You can't blow off 0:00:20.239 --> 0:00:23.160 the United States Congress from your sofa and think you're 0:00:23.160 --> 0:00:27.080 gonna get away with it. Democratic Congressman Jamie Raskin was 0:00:27.160 --> 0:00:31.000 among the two representatives who voted to hold the former 0:00:31.000 --> 0:00:35.400 White House Chief strategist in criminal contempt of Congress. Bannon 0:00:35.520 --> 0:00:38.440 is considered a key witness because of his conversations with 0:00:38.520 --> 0:00:42.240 former President Trump in the weeks leading up to January six, 0:00:42.520 --> 0:00:46.080 and the ominous prediction Bannon made on his podcast the 0:00:46.159 --> 0:00:50.520 day before the riots. All hell is going to break 0:00:50.600 --> 0:00:54.160 loose tomorrow. Just understand this. All hell is going to 0:00:54.200 --> 0:00:56.920 break loose tomorrow. It's not gonna happen like you think 0:00:56.960 --> 0:01:00.760 it's gonna happen. Okay, It's gonna be quite extraordinary, really different. 0:01:01.120 --> 0:01:03.760 And all I can say is strap in joining me 0:01:03.840 --> 0:01:07.360 is former federal prosecutor Jennifer Rogers, who teaches at Columbia 0:01:07.440 --> 0:01:10.360 Law School. Batten's lawyer has written to the committee and 0:01:10.360 --> 0:01:14.160 said his client will not testify or provide other evidence 0:01:14.280 --> 0:01:17.399 until the panel reaches an agreement with Trump or a 0:01:17.480 --> 0:01:21.040 court ways in on executive privilege. How do you assess 0:01:21.120 --> 0:01:24.920 that argument, Jennifer, Well, it really looks more like a 0:01:25.040 --> 0:01:29.440 stalling tactic, in part because the committee wasn't negotiating with Trump. 0:01:29.520 --> 0:01:31.880 They haven't heard anything from Trump about this, so it 0:01:31.920 --> 0:01:34.840 really is just a way to say I'm not cooperating 0:01:34.880 --> 0:01:38.960 at all. And also, you remember, executive privilege. While we 0:01:39.080 --> 0:01:42.000 don't know the exact parameters of what it covers because 0:01:42.040 --> 0:01:45.280 there hasn't been a lot of judicial decisions on that, 0:01:45.680 --> 0:01:47.760 we do know that you can't just use it as 0:01:47.800 --> 0:01:50.880 a blanket assertion. So they asked these Bannon for all 0:01:50.880 --> 0:01:54.320 sorts of documents and for testimony about, you know, not 0:01:54.480 --> 0:01:58.400 just one particular conversation, but a whole series of events. 0:01:58.400 --> 0:02:01.960 So the notion that you and say executive privilege, I 0:02:01.960 --> 0:02:03.440 don't have to show up at all, I don't have 0:02:03.520 --> 0:02:06.600 to send anything in is ridiculous. It's really kind of 0:02:06.640 --> 0:02:10.240 a moment by moment determination depending on who you're talking 0:02:10.280 --> 0:02:13.720 to and what the document is about. So I think 0:02:13.800 --> 0:02:18.520 those things combine suggests that Bannon is not really making 0:02:18.600 --> 0:02:21.200 an assertion and good faith here, but instead it's kind 0:02:21.200 --> 0:02:24.840 of asserting some sort of absolute immunity that borrows him 0:02:24.840 --> 0:02:28.040 from having to do anything at all. Has a court 0:02:28.160 --> 0:02:32.679 ever ruled that a conversation with a private citizen can 0:02:32.720 --> 0:02:38.000 be covered by executive privilege? Not exactly. But the problem is, 0:02:38.080 --> 0:02:42.320 there have been so few cases involving executive privilege, so 0:02:42.440 --> 0:02:45.440 few fact patterns that have really been spun out and 0:02:45.520 --> 0:02:49.240 determined by the court, that it's not a certain that 0:02:49.400 --> 0:02:54.000 they would exclude executive privilege between a then president and 0:02:54.440 --> 0:02:58.480 a close advisor, even if that person was a former advisor. 0:02:58.520 --> 0:03:00.959 You know, we just don't know for sure. I think 0:03:00.960 --> 0:03:05.280 it makes Bannon's claim to an executive privilege by far 0:03:05.600 --> 0:03:08.240 the weakest one of all of these witnesses that the 0:03:08.280 --> 0:03:11.720 Select Committee is looking to interview. But it's just not 0:03:11.880 --> 0:03:15.280 a hundred percent decided. The House Speakers sent the matter 0:03:15.400 --> 0:03:18.360 to the U S Attorney for d C. But the 0:03:18.440 --> 0:03:21.720 Gealice Department doesn't have to prosecute, does it. They do 0:03:21.800 --> 0:03:24.840 not have to prosecute. That's within the discretion of the 0:03:24.919 --> 0:03:27.840 Department of Justice. And even though as you say, it 0:03:27.880 --> 0:03:30.080 goes to the d C. U S. Attorney you better 0:03:30.080 --> 0:03:33.040 believe it. Ultimately, that decision is being made by Marrick Garlands, 0:03:33.080 --> 0:03:36.640 the attorney general. So they will consider, you know, the 0:03:36.680 --> 0:03:39.520 strength of the case, the pros and cons, all of 0:03:39.600 --> 0:03:42.720 the kind of circumstances surrounding it, and they will make 0:03:42.760 --> 0:03:45.560 a decision. And they've made clear that it's their decision. 0:03:45.680 --> 0:03:49.120 You know. Biden was asked by reporter if he thought 0:03:49.240 --> 0:03:51.760 that Bannon should be prosecuted, if this should be pressed, 0:03:51.800 --> 0:03:54.320 and he said yes, and d o j immediately came 0:03:54.440 --> 0:03:56.800 out and said, this is our decision. We are not 0:03:56.880 --> 0:03:58.840 being swayed by anyone else. We're going to make this 0:03:58.920 --> 0:04:02.160 decision on its legal and factual merits. And so you know, 0:04:02.240 --> 0:04:04.320 that's what they will try to do, trying to take 0:04:04.360 --> 0:04:07.400 into account all of the circumstances surrounding this. Do they 0:04:07.440 --> 0:04:09.440 have to call a grand jury at least or not 0:04:09.520 --> 0:04:12.040 even that they don't have to even do that, And 0:04:12.160 --> 0:04:15.120 in fact, because the crime that they would charge is 0:04:15.120 --> 0:04:17.680 a misdemeanor crime, they don't even technically have to use 0:04:17.680 --> 0:04:20.279 a grand jury, but I expect that they would because 0:04:20.279 --> 0:04:22.280 it gives it a little bit more of a kind 0:04:22.279 --> 0:04:24.680 of an official stamp of approval to take it to 0:04:24.720 --> 0:04:27.040 a grand jury, but they don't have to do anything. 0:04:27.160 --> 0:04:29.279 There have been a number of instances in the past 0:04:29.440 --> 0:04:33.400 couple of decades where Congress has sent a criminal referral 0:04:33.440 --> 0:04:36.680 for prosecution on contempt charges and d o J has 0:04:36.720 --> 0:04:39.880 decided not to pursue those. So they certainly can say 0:04:39.880 --> 0:04:41.520 they don't want to do it. I think they're more 0:04:41.640 --> 0:04:44.520 likely to do this case than the examples in the 0:04:44.560 --> 0:04:47.680 past that they have decided not to prosecute, But it's 0:04:47.720 --> 0:04:50.440 up to them. The last time a person was charged 0:04:50.480 --> 0:04:55.120 with contempt of Congress was in under the Reagan administration. 0:04:55.839 --> 0:04:59.640 Why is it that this is so rarely used. I mean, 0:05:00.360 --> 0:05:04.159 we've seen people defy Congress all the time, sort of 0:05:04.160 --> 0:05:07.440 delutes congressional power. It really does. You know. Some of 0:05:07.440 --> 0:05:10.320 it has to do with who's in control of the administration. 0:05:10.520 --> 0:05:13.880 So there were lots of instances during the Trump administration 0:05:14.040 --> 0:05:17.400 where witnesses would stone wall, you know, when the Democrats 0:05:17.400 --> 0:05:19.960 had control of the House and we're doing investigations. But 0:05:20.040 --> 0:05:22.359 there was just no way that the Department of Justice 0:05:22.440 --> 0:05:25.280 under Trump Bill Barr's Department of Justice was ever going 0:05:25.320 --> 0:05:28.480 to press a criminal case for contempt of Congress against 0:05:28.560 --> 0:05:31.680 the Trump administration person right. So some of it is 0:05:31.680 --> 0:05:34.480 because of kind of what parties are involved and who's 0:05:34.520 --> 0:05:38.400 in charge. But I also think that it's just the 0:05:38.480 --> 0:05:42.080 way that it has developed that these things happen. It's 0:05:42.080 --> 0:05:45.560 really unfortunate that most of the time when Congress wants 0:05:45.560 --> 0:05:48.880 to speak to someone or wants documents, they negotiate, they 0:05:49.040 --> 0:05:52.760 reached some sort of concession or agreement about that, and 0:05:52.800 --> 0:05:55.520 what's happened is when they don't, the clock just kind 0:05:55.560 --> 0:05:58.400 of runs out. You know, houses only in session for 0:05:58.480 --> 0:06:01.440 two years, it changes hands a lot. So it's just 0:06:01.560 --> 0:06:05.800 become this real problem with Congress trying to conduct its 0:06:05.839 --> 0:06:11.159 oversight responsibilities. And that's why a lot of Democratic members 0:06:11.240 --> 0:06:15.800 of the House are calling for legislation so that at minimum, 0:06:15.839 --> 0:06:18.200 you know, this wouldn't really encourage the d o J 0:06:18.480 --> 0:06:24.359 to prosecute necessarily, but at least to get judicial scrutiny 0:06:24.400 --> 0:06:28.160 more quickly to expedite judicial treatment. If Congress goes to 0:06:28.240 --> 0:06:31.479 the courts to try to get a subpoena enforced, that 0:06:31.480 --> 0:06:33.560 that would happen more quickly, because the running out of 0:06:33.560 --> 0:06:37.080 the clock is really the biggest problem here. So if 0:06:37.160 --> 0:06:41.400 the Justice Department decides to prosecute Bannon. Could that take 0:06:41.839 --> 0:06:45.800 months years, not years, multiple but probably around a year. 0:06:45.839 --> 0:06:47.680 I mean it will be a federal criminal case, so 0:06:47.720 --> 0:06:49.240 there are a lot of steps that have to be 0:06:49.279 --> 0:06:52.599 gone through for due process, etcetera. The judge is not 0:06:52.640 --> 0:06:54.760 going to be immediately in a position to set a 0:06:54.800 --> 0:06:59.279 trial date. So a federal criminal case of this complexity, 0:06:59.320 --> 0:07:02.320 and don't think this is a particularly complex case, I 0:07:02.360 --> 0:07:05.640 would say would take around a year. But remember that 0:07:05.680 --> 0:07:10.040 doesn't really have anything to do with whether Bannon changes 0:07:10.080 --> 0:07:13.080 his mind and decides to cooperate or not. The criminal 0:07:13.120 --> 0:07:18.600 contempt is essentially a punishment for his current refusal to cooperate, 0:07:18.880 --> 0:07:22.280 so it doesn't force him in any way to honor 0:07:22.320 --> 0:07:24.920 the subpoena and to cooperate. So so the House Select 0:07:24.920 --> 0:07:28.239 Committee is still sitting there without its documents and without 0:07:28.240 --> 0:07:30.800 its witness, even if at the same time d o 0:07:30.880 --> 0:07:34.320 J is pursuing a criminal case against Bannon. So if 0:07:34.320 --> 0:07:37.080 he can just hold out absolutely and even if he's 0:07:37.080 --> 0:07:40.600 found guilty and sentenced and sent to prison, none of 0:07:40.640 --> 0:07:43.640 that changes the fact that he hasn't done what it 0:07:43.760 --> 0:07:46.520 is that they want him to do. Now, there's a 0:07:46.600 --> 0:07:50.120 separate way to speak contempt which is a civil contempt 0:07:50.520 --> 0:07:54.560 or you can actually put someone in prison to basically 0:07:54.600 --> 0:07:57.560 coerce them into testify. And they have not chosen to 0:07:57.640 --> 0:08:00.040 pursue that route. They're going the criminal way, and that 0:08:00.160 --> 0:08:02.920 weighs effectively a punishment for what he's doing now, not 0:08:03.320 --> 0:08:07.080 a coercive attempt to force him in to cooperate. It's interesting, 0:08:07.120 --> 0:08:09.960 I would think that they would rather force him to cooperate. 0:08:10.280 --> 0:08:12.760 You know, you have to demonstrate that there is a 0:08:12.840 --> 0:08:15.000 likelihood that you'll get what you're after, that there's a 0:08:15.040 --> 0:08:17.760 likelihood that if you put the person in prison in 0:08:17.880 --> 0:08:21.280 order to coerce them to testify, that they will do so. 0:08:21.800 --> 0:08:23.440 And so I don't know why it is that they 0:08:23.480 --> 0:08:26.560 haven't pursued that avenue against Steve Bannon. I think maybe 0:08:26.960 --> 0:08:28.960 they want the I don't know if you call it 0:08:29.040 --> 0:08:31.320 the cover, but they want the kind of stamp of 0:08:31.360 --> 0:08:34.760 approval of a grand jury indicting him, it being in 0:08:34.840 --> 0:08:37.320 front of the courts where he gets his due process. 0:08:37.400 --> 0:08:39.960 You know. I think maybe they feel like putting someone 0:08:40.000 --> 0:08:42.960 like Steve Bannon so close to former President Trump in 0:08:43.040 --> 0:08:47.560 prison to force him into testifying would be a step 0:08:47.600 --> 0:08:50.320 further than they're looking to go. Right now. So let's 0:08:50.360 --> 0:08:55.000 turn now to another case of executive privilege. Trump is 0:08:55.080 --> 0:09:01.000 trying to stop the Archives from releasing his paper. Explain 0:09:01.040 --> 0:09:05.320 his claim of executive privilege here. So he's trying to 0:09:05.360 --> 0:09:09.839 stop the National Archive from handing over sets of materials 0:09:09.920 --> 0:09:15.120 involving communications around what happened on January six, effectively, so 0:09:15.360 --> 0:09:18.840 you know, they collect these communications, email communications and the like, 0:09:19.320 --> 0:09:23.840 you know, visitor logs from the White House on important days, etcetera. 0:09:24.240 --> 0:09:27.520 And he doesn't want any of that to become known 0:09:27.520 --> 0:09:30.559 to the publicers to the Select Committee, claiming that it 0:09:30.600 --> 0:09:35.720 would violate his executive privilege, which effectively protects communications among 0:09:35.800 --> 0:09:39.280 the president and his close aids in the executive branch 0:09:39.480 --> 0:09:44.360 about matters of presidential importance. So the president and his 0:09:44.400 --> 0:09:47.320 aids are talking about, you know, should we take a 0:09:47.360 --> 0:09:51.079 military action or should we do this national security thing. 0:09:51.559 --> 0:09:55.599 Those are things that the courts feel like they want protected. 0:09:55.800 --> 0:09:57.720 You know, they don't want a president to be worried 0:09:57.760 --> 0:10:00.280 when he's talking to his advisors that that inform aation 0:10:00.400 --> 0:10:04.600 might someday come out. So that's effectively the executive privilege, 0:10:04.840 --> 0:10:07.720 but it doesn't cover everything, you know, it doesn't cover 0:10:08.280 --> 0:10:11.560 for example, conversations between him and people who are not 0:10:11.640 --> 0:10:14.280 his aids, And it doesn't cover things that are not 0:10:14.360 --> 0:10:17.640 kind of within the core of a president's authority and 0:10:17.679 --> 0:10:21.720 a president's job. So it is limited. And so the 0:10:21.800 --> 0:10:26.960 fact that he wants to withhold things like the visitor logs, 0:10:26.960 --> 0:10:29.480 for example, that's not going to fly because there's no 0:10:29.559 --> 0:10:32.640 reason that that would be subject to an executive privilege. 0:10:32.640 --> 0:10:36.760 Executive privilege really is about the content of communication. So 0:10:36.840 --> 0:10:40.440 here you have a former president saying he wants to 0:10:40.480 --> 0:10:45.360 exert executive privilege and the current president saying he doesn't 0:10:45.360 --> 0:10:49.600 want to exert executive privilege. Here are there cases where 0:10:49.720 --> 0:10:54.080 former versus president are wide and who has the privilege, 0:10:54.559 --> 0:10:58.760 So there are Back when this was being litigated in 0:10:58.880 --> 0:11:02.600 relation to form of President Nixon, the Supreme Court did 0:11:02.720 --> 0:11:07.880 talk about this issue. Usually, the current president has the privilege, 0:11:07.920 --> 0:11:10.680 has the right to either wave or assert the privilege 0:11:10.920 --> 0:11:14.080 because it's viewed to be an institutional thing. Right. You 0:11:14.080 --> 0:11:17.400 want to protect the presidency and the president, no matter 0:11:17.440 --> 0:11:20.520 who it is at the time, their ability to consult 0:11:20.600 --> 0:11:24.400 freely with their close advisors. So the current president holds 0:11:24.440 --> 0:11:27.719 that privilege. Now, the Supreme Court did say that in theory, 0:11:27.760 --> 0:11:31.040 they could see a former president having an interest in 0:11:31.200 --> 0:11:36.040 an ability to assert the privilege, but where the current 0:11:36.120 --> 0:11:39.440 president then disagrees and doesn't want to assert the privilege, 0:11:39.679 --> 0:11:43.760 the current president assertion would have more weight, although they 0:11:43.760 --> 0:11:47.120 didn't discount the possibility that you could have a scenario 0:11:47.200 --> 0:11:50.640 where a former president's assertion might be granted, but that 0:11:50.760 --> 0:11:53.920 hasn't been done. In the Nixon case, Nixon wanted the privilege, 0:11:54.160 --> 0:11:56.679 current president did not want the privilege, and ultimately they 0:11:56.760 --> 0:11:59.040 ruled that there was no privilege, but they did kind 0:11:59.040 --> 0:12:01.880 of hold out that possible hope that in theory, there 0:12:01.920 --> 0:12:03.520 could be a case like that at some point. So 0:12:03.640 --> 0:12:07.439 it's not a certain Does it make a difference that 0:12:07.480 --> 0:12:12.360 it's an investigation into a possible abuse of power by 0:12:12.400 --> 0:12:15.840 the former president, you know, if he really was encouraging 0:12:16.320 --> 0:12:19.480 the January six rioters, You know, I think it does. 0:12:19.640 --> 0:12:23.120 The problem is it's hard to know what the communications 0:12:23.160 --> 0:12:27.160 are about until you know what the communications are. But yes, 0:12:27.240 --> 0:12:29.680 I mean that theory holds, and that was another one 0:12:29.679 --> 0:12:34.160 of the findings of the Supreme Court in the Nixon case. 0:12:34.200 --> 0:12:38.040 When you're talking about either criminal behavior or behavior that 0:12:38.200 --> 0:12:42.000 just is not within the president's authority, then you're not 0:12:42.160 --> 0:12:46.800 supposed to have executive privilege over those kinds of communications. 0:12:46.880 --> 0:12:49.760 So in a case where the president is you say, 0:12:49.800 --> 0:12:53.319 is abusing his authority, is trying to hold on to 0:12:53.480 --> 0:12:56.880 power to overturn an election, you know whether or not 0:12:56.920 --> 0:13:01.120 those are technically crimes pursued into the federal criminal Code, 0:13:01.559 --> 0:13:04.600 you wouldn't think that an assertion of executive privilege would 0:13:04.640 --> 0:13:07.840 be appropriate there. And indeed, that's more or less what 0:13:08.120 --> 0:13:12.280 President Biden has said. This was an extraordinary circumstance, really 0:13:12.320 --> 0:13:15.840 in an undercutting of our democracy, and so we need 0:13:15.880 --> 0:13:18.400 to know what happened here. You know, this is not 0:13:18.480 --> 0:13:20.880 your run of the mill. Are we going to bomb 0:13:20.920 --> 0:13:23.040 this country? Are we going to do this sort of 0:13:23.080 --> 0:13:25.360 thing that is within the heartland of what you would 0:13:25.360 --> 0:13:29.280 want that kind of confidentiality with your advisors. This is 0:13:29.360 --> 0:13:33.240 something nefarious, This is something improper, and so we need 0:13:33.320 --> 0:13:36.040 to know what happened. So I think you're right to 0:13:36.120 --> 0:13:40.880 say that that also factors into the legitimacy of executive privilege. 0:13:41.080 --> 0:13:43.120 What was it about? Is it about something you want 0:13:43.160 --> 0:13:45.920 protected or is it about something that you feel quite 0:13:45.920 --> 0:13:48.880 to the contrary needs to see the light of day. 0:13:49.000 --> 0:13:52.600 Trump also claims the committee subpoena is invalid because the 0:13:52.640 --> 0:13:56.760 committee has no power of investigation. That was an argument 0:13:56.760 --> 0:14:00.120 he made his lawyers made during some other lawsuits or 0:14:00.360 --> 0:14:04.120 Trump's presidency. It will not carry the day for sure. 0:14:04.160 --> 0:14:06.800 I mean, they don't investigate in the way that law 0:14:06.880 --> 0:14:12.120 enforcement investigates, but they do investigating connection with their legislative powers. 0:14:12.200 --> 0:14:15.560 And in fact, I think the House is very interested 0:14:15.679 --> 0:14:19.160 in thinking about ways that they can establish some guardrails 0:14:19.200 --> 0:14:22.040 to avoid this sort of thing in the future. For example, 0:14:22.080 --> 0:14:24.640 you know, they're looking at this question of stonewalling and 0:14:24.680 --> 0:14:28.520 whether they want to try to pass legislation that requires 0:14:28.560 --> 0:14:33.720 expedity handling in courts of cases involving congressional subatoinas. They 0:14:33.760 --> 0:14:37.920 may want to establish legislation around you know, who has 0:14:38.000 --> 0:14:40.720 power to bring in the National Guard if there's some 0:14:40.880 --> 0:14:43.920 sort of problem at the capital like happened on January six. 0:14:44.000 --> 0:14:47.880 So they do need some sort of legislative purpose when 0:14:47.920 --> 0:14:50.720 they are doing this kind of thing, but that's easy 0:14:50.760 --> 0:14:54.040 to find. You know, they can always say they're looking 0:14:54.120 --> 0:14:57.960 to legislate, and in fact, in this case they really are. 0:14:58.000 --> 0:15:02.040 They really are looking for ways to avoid what happened 0:15:02.040 --> 0:15:06.600 here and to do that through passing lots. So Trump 0:15:06.880 --> 0:15:09.840 seems to be using the courts as he always has 0:15:09.920 --> 0:15:13.040 to run out the clock, perhaps until a change in 0:15:13.160 --> 0:15:16.440 leadership of the House during the mid terms. Can this 0:15:16.600 --> 0:15:21.360 be done expeditiously? Will the courts do this fast or 0:15:21.520 --> 0:15:25.080 is it impossible? Well, they can do it fast, I mean, 0:15:25.120 --> 0:15:28.280 courts can work quickly. They just don't always do that. 0:15:28.640 --> 0:15:32.120 And you know, you won't have a final determination, like 0:15:32.160 --> 0:15:35.720 on Trump's lawsuit about the contours of executive privilege. We 0:15:35.760 --> 0:15:38.920 won't know the final word until and unless this gets 0:15:38.920 --> 0:15:41.920 all the way to the Supreme Court, frankly for their 0:15:42.040 --> 0:15:45.520 ruling on it. But that doesn't mean that things can't happen. 0:15:45.680 --> 0:15:48.720 I mean, Steve Bannon may be able to run out 0:15:48.760 --> 0:15:52.520 the clock if he refuses to cooperate. Even if he's 0:15:52.560 --> 0:15:55.440 convicted and sentenced to prison. As I said, he doesn't 0:15:55.480 --> 0:15:58.000 have to cooperate, So he may be able to run 0:15:58.000 --> 0:16:01.240 out the clock. But the Select Committee can continue their 0:16:01.280 --> 0:16:05.520 work and seek information that is clearly not subject to 0:16:05.560 --> 0:16:08.200 executive privilege. And I think that there is enough of 0:16:08.320 --> 0:16:11.800 that kind of information that they will get a fairly 0:16:11.880 --> 0:16:15.240 full picture of what happened on January six, as long 0:16:15.280 --> 0:16:20.640 as they pressed for the information that is about this 0:16:20.720 --> 0:16:23.640 event that should not be protected by the privilege, then 0:16:23.640 --> 0:16:25.480 I think they can. They can get what they need, 0:16:25.560 --> 0:16:28.240 but they do need to keep pushing, to move quickly 0:16:28.400 --> 0:16:31.920 and to act aggressively, or you know, you're right, the 0:16:32.360 --> 0:16:35.080 tick tick ticking of the clock will eventually catch up 0:16:35.080 --> 0:16:38.760 with them. The National Archives told Trump it will turn 0:16:38.800 --> 0:16:43.040 over the records to Congress on November twelve unless a 0:16:43.120 --> 0:16:47.800 court steps in. So if the judge doesn't issue an injunction, 0:16:48.280 --> 0:16:51.640 and if the appellate court doesn't step in, then his 0:16:51.800 --> 0:16:54.440 concerns will be ignored and they'll turn over the papers. 0:16:55.000 --> 0:16:56.920 That's right. This is kind of the flip side of 0:16:56.960 --> 0:17:00.480 what happened pretty frequently during the Trump administration. And you know, 0:17:00.560 --> 0:17:04.200 you need an injunction to to stop whatever the action, 0:17:04.280 --> 0:17:06.720 and so here he needs an injunction to stop the 0:17:06.800 --> 0:17:10.160 National Archives from turning over the information, and he can 0:17:10.240 --> 0:17:13.040 only get one, by the way, according to the legal 0:17:13.080 --> 0:17:16.480 standards of injunction, if he can prove that he has 0:17:16.480 --> 0:17:19.640 a likelihood of success on the merit. Thanks Jennifer. That's 0:17:19.640 --> 0:17:25.560 former federal prosecutor Jennifer Rogers. It's the first prosecution related 0:17:25.600 --> 0:17:28.760 to the two seven thirty seven Max crashes that killed 0:17:28.920 --> 0:17:34.360 three forty six people in Bowen's former chief test pilot, 0:17:34.400 --> 0:17:38.800 Mark Forkner, has been charged with deceiving federal regulators about 0:17:38.840 --> 0:17:42.520 the flight control system that was later linked to both tragedies. 0:17:43.080 --> 0:17:47.160 After Forlkner pleaded not guilty, his attorney, David Gurger, said 0:17:47.240 --> 0:17:50.399 his client did not lie and did not cause the crashes. 0:17:50.800 --> 0:17:54.920 Everyone who was effective by this tragedy deserved a search 0:17:54.960 --> 0:17:58.679 for the truth, not a search for escapegoat. Joining me 0:17:58.760 --> 0:18:01.719 is former federal prosecute and Mark Little, a partner at 0:18:01.760 --> 0:18:06.600 Nixon Peabody, tell us about the charges that Faulkner is facing. 0:18:07.720 --> 0:18:12.359 The charges are really twofold. One is charges related to 0:18:12.400 --> 0:18:17.439 false statements and intend to a defraud regarding false writings 0:18:17.560 --> 0:18:23.320 or certifications records regarding an aircraft part. And that's a 0:18:23.359 --> 0:18:26.399 statute that's not normally used, but it's basically titled fraud 0:18:26.440 --> 0:18:30.320 involving aircraft parts in interstate commerce. That's counts one through two, 0:18:30.720 --> 0:18:34.040 Counts three through six, or wire fraud counts. Wire fraud 0:18:34.400 --> 0:18:38.840 is an allegation that someone had a scheme and artists 0:18:38.880 --> 0:18:42.240 to defraud and obtained money and property by false and 0:18:42.400 --> 0:18:45.760 fraudulent pretenses, and that's the whole indictment. Of the six 0:18:45.840 --> 0:18:48.919 count indictment. There's also a forfeiture notice whether trying to 0:18:48.960 --> 0:18:52.600 collect any money that was gained as a result of 0:18:52.640 --> 0:18:57.000 this alleged crime are traceable to those offenses. Mark prosecutors 0:18:57.040 --> 0:19:00.320 have a trail of what seems like incriminating email from 0:19:00.400 --> 0:19:04.399 Faulkner complaining about the max software system, the m cast 0:19:04.800 --> 0:19:07.560 that it was quote designed by clowns who in turn 0:19:07.600 --> 0:19:11.720 are supervised by monkeys, and bragging about using Jedi mind 0:19:11.760 --> 0:19:14.800 tricks on regulators. Will those be an important part of 0:19:14.840 --> 0:19:18.320 the case against him, Well, it depends, you know, certainly, 0:19:18.440 --> 0:19:22.080 the cases an example that continues to show up in 0:19:22.359 --> 0:19:26.280 the modern era with email and electronic communications, where people 0:19:26.320 --> 0:19:28.400 sort of just say what's on their mind and don't 0:19:28.400 --> 0:19:30.720 think about what they're saying. So there's certainly some of 0:19:30.720 --> 0:19:33.520 those statements by Forkner are gonna be embarrassing. I would 0:19:33.520 --> 0:19:36.040 expect that the government try to use those to the 0:19:36.080 --> 0:19:40.000 extent that they put knowledge in Forker's head about the 0:19:40.160 --> 0:19:43.280 end cast failure or the end cast stimulation that he 0:19:43.359 --> 0:19:46.199 learned about. I expect that defense attorneys would try to 0:19:46.280 --> 0:19:49.200 limit that because it might be prejudicial or not relevant 0:19:49.200 --> 0:19:52.959 really to the charges. In one, he says, I basically 0:19:53.040 --> 0:19:57.040 lied to the regulators unknowingly. Does that cut for him 0:19:57.119 --> 0:20:00.280 or against him? He cuts both ways. The way it 0:20:00.320 --> 0:20:05.359 cuts against him is it's his statement acknowledging that he's 0:20:05.440 --> 0:20:10.920 received this new disclosure internally about where the MCAST operates 0:20:10.920 --> 0:20:15.480 and what circumstances, which is significantly broader than what Boeing 0:20:15.520 --> 0:20:19.280 had previously known and or disclosed the f A. Hey, 0:20:19.600 --> 0:20:22.000 so it goes against him in that way. It's that's 0:20:22.040 --> 0:20:25.239 the marker where he's saying he knew about this, and 0:20:25.280 --> 0:20:28.960 it sets the stage for future allegations that later on 0:20:29.040 --> 0:20:31.639 he didn't tell the FAY about it. It goes for 0:20:31.880 --> 0:20:36.240 him because this word that he added unknowingly is sort 0:20:36.280 --> 0:20:38.880 of his statement that like, Wow, I've had all these 0:20:38.880 --> 0:20:41.479 conversations the FAA and they told me all this stuff 0:20:41.560 --> 0:20:44.760 internally about the MCAST, but now it's different, and now 0:20:44.800 --> 0:20:46.960 they're gonna stay highlife. I didn't lie, you know, I 0:20:47.000 --> 0:20:49.720 just didn't know about it. The email about Jedi mind 0:20:49.760 --> 0:20:53.200 tricking regulators was to an f a A official. Does 0:20:53.240 --> 0:20:55.560 that seem to suggest that the f A A new 0:20:55.760 --> 0:20:58.760 or should have known about changes to the end casts. 0:20:59.320 --> 0:21:02.840 It wasn't like the FAA was totally in the dark here. Yeah, 0:21:02.920 --> 0:21:05.520 this is a challenging indictment for the government to bring 0:21:05.640 --> 0:21:08.560 on a number of levels. But clearly before any of 0:21:08.680 --> 0:21:12.119 these charges came out, obviously, during the scope of the 0:21:12.200 --> 0:21:15.760 FA's investigations of those two crashes and how they occurred, 0:21:16.040 --> 0:21:18.080 clearly there were a lot of criticism of the f 0:21:18.240 --> 0:21:22.119 A certification process that they weren't hands on, that they 0:21:22.119 --> 0:21:26.720 weren't involved in certifying aircraft enough that as a regulator 0:21:26.760 --> 0:21:29.840 there should have been much more involved. This Jedi mind 0:21:30.000 --> 0:21:32.760 statement puts a number of people in the f A 0:21:32.840 --> 0:21:35.479 a unnoticed that they should have looked harder at this. 0:21:35.600 --> 0:21:37.439 They should have taken this and said, wait, what do 0:21:37.480 --> 0:21:40.760 we got here? So clearly, when Forkner goes on trial, 0:21:41.000 --> 0:21:43.600 there's going to be a lot of effort by his attorneys. 0:21:43.600 --> 0:21:46.440 I would expect to actually put the FAY on trial. 0:21:46.960 --> 0:21:50.400 Forkner is a mid level employee. It's kind of hard 0:21:50.480 --> 0:21:54.240 to imagine that all this happened solely because of his 0:21:54.320 --> 0:21:58.119 actions or in actions. That's right, but that's one of 0:21:58.160 --> 0:22:01.359 the real shortcomings of trying to chards one person in 0:22:01.400 --> 0:22:04.680 an environment where when you look at the indictment itself, 0:22:04.720 --> 0:22:07.640 there's some emails by him where he's worried that he's 0:22:07.680 --> 0:22:11.880 going to cost Bowing millions of dollars, And clearly there's 0:22:11.920 --> 0:22:14.720 an environment there where you've got an employee who's worried 0:22:14.760 --> 0:22:18.680 about that, and maybe that's infringing his judgment. But more 0:22:18.840 --> 0:22:22.040 to the legal point, these wire fraud counts and this 0:22:22.359 --> 0:22:26.120 FA A fraud account. Critical elements of these charges are 0:22:26.200 --> 0:22:30.720 that Porker intended to defraud somebody of money or property. 0:22:31.000 --> 0:22:33.879 That's going to be really difficult. It's clear that he lied, 0:22:34.080 --> 0:22:37.120 and it's clear that he made some false statements and omissions, 0:22:37.160 --> 0:22:40.560 mostly omissions, but to say that he wanted to sort 0:22:40.600 --> 0:22:43.919 of make money through those lives, it looks apparently that 0:22:43.960 --> 0:22:47.320 he's a mid level employees worried about his reputation or 0:22:47.359 --> 0:22:50.280 worried about a reputation that results in people saying he 0:22:50.359 --> 0:22:54.040 cost the company money. And that's not enough to say 0:22:54.119 --> 0:22:58.159 he intended to defraud airline customers of Bowing. What are 0:22:58.200 --> 0:23:02.040 the other elements that esecutors have to prove? For example, 0:23:02.400 --> 0:23:07.080 is materiality an element? It is? Materiality is an element 0:23:07.119 --> 0:23:09.199 in every fraud case, and they're going to have to 0:23:09.240 --> 0:23:13.080 show that but for these false statements, things would have 0:23:13.119 --> 0:23:15.840 been different. It's really hard to say, because all of 0:23:15.880 --> 0:23:20.119 the statements in the indictment that allege Forkner committed fraud, 0:23:20.480 --> 0:23:23.760