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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

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Speaker 1: and on Bloomberg dot com slash Podcasts. President Trump and

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Speaker 1: his attorney Rudy Giuliani claimed that the president can pardon himself,

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Speaker 1: but Giuliani says Trump is still willing to be interviewed

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Speaker 1: in the Special Counsel's Rushia investigation. He spoke on CNN's

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Speaker 1: Cuomo Prime Time. President Trump wants to be interviewed. I

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Speaker 1: hope that's true, believes he is innocent. He says to me,

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Speaker 1: I didn't do anything wrong. I hope we didn't do

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Speaker 1: anything wrong. But the world isn't that simple. Justice system

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Speaker 1: isn't as fair as you think. Joining me is Brad Moss,

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Speaker 1: a partner Mark Sade. Brad Trump has started yet another

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Speaker 1: legal controversy over whether a president can pardon himself. In

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Speaker 1: a legal opinion that was issue four days before President

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Speaker 1: Richard Nixon stepped down, the Justice Department's Office of Legal

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Speaker 1: Counsel concluded the president can't pardon himself although other legal

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Speaker 1: experts say he can. What's your opinion. I stand by

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Speaker 1: the d j's view that the president can't pardon himself.

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Speaker 1: The concept that any one person can be both judge, jury,

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Speaker 1: and quote unquote executioners just an ethemounts or entire system

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Speaker 1: of government and our entire criminal justice system. So the

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Speaker 1: more the mere concept that the president could somehow commit

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Speaker 1: a crime and then pardon himself that all himself to

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Speaker 1: keep going on just doesn't stand with our constitutional republic.

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Speaker 1: And the only reason we're talking about this, you know,

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Speaker 1: I know the president likes to complain that we all

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Speaker 1: we all focused on the Russia prope The only reason

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Speaker 1: we're talking about this is because the president is circuits

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Speaker 1: keep mouthing off on television with really dangerous and unnecessary

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Speaker 1: self force and unforced errors, and this is just another

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Speaker 1: one of them. Past presidents Richard Nixon and Bill Clinton

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Speaker 1: did not, according to reports, even consider having you know,

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Speaker 1: pardnering themselves. Is Trump laying the groundwork to push the

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Speaker 1: limits of presidential power or is this a negotiation strategy. Oh,

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Speaker 1: it's a It's a good question, and it might be

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Speaker 1: a little bit of ultimate. Look, Donald Trump has a

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Speaker 1: very broad view of executive authority. He tends to take

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Speaker 1: the position that the article to authority granted him by

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Speaker 1: the Constitution is as powerful and plenary as he can

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Speaker 1: make it. And that's just his style of leadership anyways.

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Speaker 1: So the idea that he might take the view that

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Speaker 1: the d j's analysis was wrong and he could pardon himself,

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Speaker 1: I can't view that as are their own possibilities. But

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Speaker 1: in the end, yeah, and he's the ultimate salesman, the

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Speaker 1: ultimate negotiator. This is likely just part of his tactic

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Speaker 1: in terms of how he's negotiating with Muller and ultimately

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Speaker 1: with possible impeachment individuals later on. So that's I think

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Speaker 1: where this is really leading to some headlines now, and

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Speaker 1: that is that we know that that in Trump is

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Speaker 1: going to the G seven and he is expected to

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Speaker 1: meet with the Prime Minister of Canada Trudeau there Again,

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Speaker 1: Trudeau says that he expects that he will meet with

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Speaker 1: Trump at the G seven. Turning now to the trial

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Speaker 1: of former Trump campaign chairman Paul Manafort, the special counsel

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Speaker 1: has accused him of attempting to tamper with witnesses. Tell

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Speaker 1: us more about the accusations here. Yes, So, what the

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Speaker 1: government's motion laid out in the Africa from the relevant

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Speaker 1: agency official is that shortly after being indicted for the

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Speaker 1: second time, Mr Manafort reached out to certain individuals who

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Speaker 1: were part of his lobbying campaign in Europe about sex

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Speaker 1: seven years ago, and he tried to start coordinating and

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Speaker 1: sinking up testimony. Now that on in IT zone isn't

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Speaker 1: an issue, but the prom became that he tried to

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Speaker 1: start hinting at a certain line of testimony that the

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Speaker 1: people he was discussing this with new to be false,

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Speaker 1: and those individuals appear to have read it him out

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Speaker 1: and provided these communications to the government, and the government

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Speaker 1: has viewed that as an attempt to subbort and perjury

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Speaker 1: attempt to force a coerce false testimony from these individuals

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Speaker 1: who would be providing relevant testimony. In the end, this

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Speaker 1: is a very serious charge. He could almost's almost likely.

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Speaker 1: So it's almost certain that he's going to have his

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Speaker 1: bail revoked and wind up in prison until at least

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Speaker 1: his trial in September and July. Really it's almost certain

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Speaker 1: because that's going to be there's the June has been

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Speaker 1: set by the judge as the hearing date and you

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Speaker 1: think that it that he'll have his his bail revoked,

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Speaker 1: which he has fought hard for. Correct I mean, I personally,

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Speaker 1: if the allegations are viewed as persuasive by the judge,

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Speaker 1: I can't envision an alternative scenario of home confinement that

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Speaker 1: would eliminate the risk of him trying this again, because

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Speaker 1: not just that he himself did it, he went through intermediaries.

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Speaker 1: I mean, you have to cut him off from any

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Speaker 1: communication device ever, as well as anyone else in his house.

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Speaker 1: He had to take away all devices from his from

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Speaker 1: his wife, from his kid, any grandkids, anybody, you know,

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Speaker 1: it would be just ridiculous at that point. I mean,

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Speaker 1: I don't think that's really an option he'd want to

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Speaker 1: take any at that point. Anyways. I think at that

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Speaker 1: point it just becomes confinement in prison for as long

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Speaker 1: as it takes to get the trial. Would this have

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Speaker 1: been discovered if there wasn't such a focus on manifort,

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Speaker 1: and there were weren't so many resources of the FBI

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Speaker 1: and the and the prosecutor devoted to this case, It's possible.

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Speaker 1: You never quite know, you know, with any if it

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Speaker 1: was it's just a garden variety case. If they would

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Speaker 1: have been able to have kept track of all this

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Speaker 1: and have had whatever, you know, various methods of data

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Speaker 1: collection that they're using through search Warrenson, why are tests

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Speaker 1: never has been authorized by the courts, obviously, the full

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Speaker 1: extent of which we don't know. We don't know if

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Speaker 1: the individuals would have come forward in a garden variety case.

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Speaker 1: But that's a that aside the fact that Paul Manafort

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Speaker 1: was reckless enough to even try this, given all the

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Speaker 1: focus he knows is on him, given that he already

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Speaker 1: knows that his emails have been searched, his records have

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Speaker 1: been searched, that there's wire taps that have already been authorized.

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Speaker 1: That was just plain stupid by any analysis. So being

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Speaker 1: in prison might give him a different outlook than he's had,

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Speaker 1: as he has fought off any attempts to you know,

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Speaker 1: to turn to make a plea deal, correct, I mean,

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Speaker 1: And that's the that's the thing, is I mean, Palm

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Speaker 1: Manaford has lived the high life since the eighties. He

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Speaker 1: has he has consulted and lobbied for presidents and for

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Speaker 1: premiers and any number of people overseas. He's lived with

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Speaker 1: a very you know, high salary, high that high, that words,

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Speaker 1: and the significant assets. If he finds himself now just

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Speaker 1: prisoner number x y Z in a federal penitentiary, that

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Speaker 1: might be a sobering moment for him, and that might

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Speaker 1: kind of be the straw that breaks the camel's back

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Speaker 1: here to make him consider a plea deal and to

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Speaker 1: cooperate with Mueller's team. So, Brad, what happens next? Just

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Speaker 1: about thirty seconds here, Yeah, the manaforts team has to

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Speaker 1: file a response by the end of this week. That's

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Speaker 1: gonna be hearing next week on this. The judge is

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Speaker 1: going to make a decision probably on probably that day

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Speaker 1: at the hearing on whether or not to revoke the bail. Well,

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Speaker 1: it's going to be very interesting to see what their

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Speaker 1: response is because the Special Counsel has so seems to

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Speaker 1: have so much documentation of this. I was always great

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Speaker 1: to have you on, Brad. That's Brad Moss. He's a

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Speaker 1: partner in the Hard State. Allergan has found an unusual

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Speaker 1: and perhaps sham way to avoid challenges to the patents

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Speaker 1: of a blockbuster drug. It's bought protection and American Indian

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Speaker 1: Tribe sovereign immunity. Rival drug companies are challenging Allergan's transfer

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Speaker 1: of its patents for the dry eye drug restaces to

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Speaker 1: the St. Regis Mohawk tribe and Monday at oral arguments,

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Speaker 1: judges at the top patent court in the country question

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Speaker 1: whether Allergan was trying to circumvent review by the Patent

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Speaker 1: and Trademark Office. Joining me a Shuba Ghost director of

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Speaker 1: the Syracuse Intellectual Property Law Institute, super I think we

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Speaker 1: need a little background here. Why does Alergan want to

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Speaker 1: avoid review by the Patent office preferring a trial? Thank

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Speaker 1: you for having me on. First of all, the main

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Speaker 1: issue here are new procedures within the Patent Office that

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Speaker 1: were introduced into a Love twenty eleven that allow somebody

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Speaker 1: to challenge a patent and question its validity. And these

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Speaker 1: procedures have really struck down a lot of patents in

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Speaker 1: the last h six or seven years, and so a

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Speaker 1: lot of patent donors have been wary about them and

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Speaker 1: prefer to take their chances in the court. So the

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Speaker 1: Joice Department lawyer called Allergan's tactics a shell game. Judge

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Speaker 1: Timothy Dyke asked if renting or buying the tribe's protection

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Speaker 1: is problematic. Does Allergan admit that the only reason it

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Speaker 1: made this deal was to circumvent the system. I mean,

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Speaker 1: all of those are a loaded terms. I mean trying

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Speaker 1: to be a little bit neutral here. Um. Tribal sovereign

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Speaker 1: immunity is something that does exist, and I think Allergan

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Speaker 1: found a way to make a deal with the tribes,

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Speaker 1: so that was beneficial to both sides. In other words,

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Speaker 1: the tribes could get the benefit of the patent and

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Speaker 1: Allergan could provide some additional protection for its patents that,

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Speaker 1: as far as we know now are permitted within the law.

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Speaker 1: I mean, though the rulings of the court might might

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Speaker 1: shift that depending on where they come out. So what

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Speaker 1: I what I mean is Allergant basically said it's legal

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Speaker 1: and we did it. But is there another reason besides

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Speaker 1: getting the tribal sovereign immunity that it would make this deal?

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Speaker 1: H That's what I mean. That's a good question. Um,

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Speaker 1: I mean I think it. I ultimately have to ask

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Speaker 1: the company. There might be some some advantages and striking

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Speaker 1: these deals and working with with with the tribes, but

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Speaker 1: most likely the main advantage that it's getting is the

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Speaker 1: sovereign immunity. So now Critics of this move say that

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Speaker 1: it can cause problems down the road. It could sort

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Speaker 1: of um infect the patent system. Explain what the problems

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Speaker 1: might be if this is affirmed allowed. Sure, Congress did

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Speaker 1: allow create a system inn to challenge the validity of patents.

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Speaker 1: I think there was a general concern that patents had

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Speaker 1: to be given more strict review. Even though the us

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Speaker 1: P t O does do a thorough review in deciding

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Speaker 1: whether to grant the patent, those procedures are often done

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Speaker 1: without the participation of other interested parties. And so what's

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Speaker 1: a stake in this case? Are these procedures that have

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Speaker 1: been established by Congress that have been you know, they're

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Speaker 1: they're controversial, but I think in general there's the benefits

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Speaker 1: have been positive to basically allow certain reviews of patents,

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Speaker 1: And so if this is affirmed, if this is allowed,

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Speaker 1: then uh, we might see more of these deals being made. Again,

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Speaker 1: there's a question how much of those are possible to

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Speaker 1: be made and when they're They're both downsides and upsides

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Speaker 1: to these types of deals. But it may be a

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Speaker 1: way to get around the kind of systems for reviewing

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Speaker 1: patents that Congress created. In other tribes have reached similar

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Speaker 1: agreements with tech company with um to avoid tech companies

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Speaker 1: patents like Apples and Microsoft. Will the court be considering

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Speaker 1: the possible effect to the whole patent system when it

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Speaker 1: considers this, Well, I hope so. I mean, I think

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Speaker 1: this is not just isolated deals. Uh. There are the

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Speaker 1: technical legal issues about whether all Alligant and the Mohawk

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Speaker 1: tribe are working within what the law allows. But there

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Speaker 1: definitely are some adverse consequences that the court should consider

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Speaker 1: and I think will consider. They already have been surfacing

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Speaker 1: in the our arguments as you were for two earlier,

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Speaker 1: So two of the judges at the US Federal Court

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Speaker 1: of Appeals the patents seem to be sort of on

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Speaker 1: the side of the those who are opposing the Allergant deal.

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Speaker 1: What did you see that stood out to you? Well,

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Speaker 1: I think a lot of these issues have been priculating

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Speaker 1: since the deal was was publicized, you know, last fall.

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Speaker 1: I think the main question is when has a tribe

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Speaker 1: waived the sovereign immunity and tribal immunity tends to be

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Speaker 1: a fairly um arcane and robust concept. It's it's fairly controversial,

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Speaker 1: especially as it arises with respect to criminal investigations and

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Speaker 1: the basically the sovereignty and the independence of the tribe

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Speaker 1: in reaching certain decisions. But in this particular context, I

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Speaker 1: think there there is a concern as to whether by

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Speaker 1: taking the economic advantage of the patent system, which the

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Speaker 1: tribes have by receiving money in exchange as part of

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Speaker 1: these deals, whether they have effectively waived their immunity. Uh.

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Speaker 1: In other words, they basically have entered the patent system,

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Speaker 1: and they can't they can choose, you know, what they

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Speaker 1: can have enforced against them. So it is a narrower

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Speaker 1: ruling possible here instead of going to the entire issue

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Speaker 1: of sovereign immunity. Is there it narrower? Is it possible

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Speaker 1: that the court will make a narrower decision. It's it's possible,

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Speaker 1: But I think, you know, sovereign immunity tends to be

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Speaker 1: an all or nothing uh venture, and so it's hard

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Speaker 1: to see how they could narrow it beyond just simply

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Speaker 1: finding that there has been a waiver under these circumstances.

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Speaker 1: I think I think courts generally have avoided a broad

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Speaker 1: ruling by just simply saying that since sovereign entity exists

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Speaker 1: in a market economy they've waived their immunity. It's been

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Speaker 1: a lot more specific than that. So I think the

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Speaker 1: final ruling, if the court does find against immunity, might

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Speaker 1: be based on the particularities of this of this deal.

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Speaker 1: So among the companies that have filed arguments against Allergant

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Speaker 1: or Microsoft and tech companies that include Google, Amazon, and Oracle,

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Speaker 1: explain what what their arguments were and what their concerns are. Well,

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Speaker 1: this is this is getting yet a little bit of

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Speaker 1: an ongoing debate in the patent system between pharma's, pharmaceutical

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Speaker 1: companies and software companies. You know, pharmaceutical companies typically have

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Speaker 1: tried to be very protective of their patents, and I've

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Speaker 1: been very very wary of of devices or mechanisms that

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Speaker 1: Congress may have created or the USPTO may have created

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Speaker 1: that puts patents under close scrutiny. And the software and

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Speaker 1: the I T sectors, however, in general or a bit

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Speaker 1: more wary of patents. Um there's a lot more discussion

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Speaker 1: in that in that industry about whether patents on software

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Speaker 1: and information technologies do more harm than good, and so

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Speaker 1: there would be in favor of of systems that would

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Speaker 1: give more scrutiny to patents and really be very skeptical

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Speaker 1: of of things like this where they try to avoid

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Speaker 1: the mechanism of the Congress is created. All right, thanks

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Speaker 1: so much. The Federal Circuit is expected to make a

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Speaker 1: pretty fast decision after hearing the arguments yesterday. That's Shuba Ghost,

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Speaker 1: director of the Syracuse Intellectual Property Law Institute. Thanks for

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Speaker 1: listening to the Bloomberg Law podcast. You can subscribe and

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Speaker 1: listen to the show on Apple Podcasts, SoundCloud, and on

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Speaker 1: Bloomberg dot com slash podcast. I'm June Brosso. This is

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Speaker 1: Bloomberg Ye.