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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. Mark Zuckerberg's two

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Speaker 1: days of testimony on Capitol Hill maybe over, but scrutiny

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Speaker 1: over the data leak that sparked the worst crisis in

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Speaker 1: Facebook's history clearly is not. There have been increasing calls

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Speaker 1: for antitrust action against Facebook. That was echoed in questions

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Speaker 1: from Republican Senator Lindsey Graham about whether Facebook was a monopoly.

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Speaker 1: The average American uses eight different apps, okay, communicate with

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Speaker 1: their friends and stay in touch with people, ranging from

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Speaker 1: texting apps, email service. You provide well, we provide a

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Speaker 1: number of differences Twitter the same as what you do.

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Speaker 1: It overlap the portion. Don't think you have a monopoly.

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Speaker 1: It's certainly doesn't feel like that to me. Zuckerberg's answer

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Speaker 1: may have gotten a laugh, but it's no laughing matter.

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Speaker 1: Joining me is Gary Reback of counsel a car and Ferrell. Gary.

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Speaker 1: I'm going to begin by asking what Lindsay Graham was

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Speaker 1: basically asking Zuckerberg and never got a straight answer. Is

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Speaker 1: Facebook a monopoly? Well, it hasn't been judged a monopoly

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Speaker 1: in any case yet the way Google has. But I

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Speaker 1: think all the year marks and all the hallmarks are there,

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Speaker 1: of course, explain that a little more. Well, the easiest

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Speaker 1: way to define a monopoly is the way the Europeans do,

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Speaker 1: which is that you can set all your terms of

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Speaker 1: sale and your terms of engagement with consumers without even

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Speaker 1: considering what competitors might do. And I think that clearly

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Speaker 1: describes Facebook, as Senator Graham indicated, Uh, the closest competitors

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Speaker 1: to Facebook are now owned by Facebook. That's What's App

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Speaker 1: and Instagram. So there's nothing really on the horizon that

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Speaker 1: challenges Facebook's hed gemony in social networking. And the notion

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Speaker 1: that email as a competitor for a social network platform

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Speaker 1: really is risible. I think Zuckerberg was prepared to cite

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Speaker 1: competition with China and the overall ad market if asked

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Speaker 1: whether Facebook should be broken up. According to a photograph

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Speaker 1: that was published by a p of a binder of

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Speaker 1: internal notes he took to the hearing, Are those good responses? Uh?

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Speaker 1: I think the China part is almost a joke that

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Speaker 1: has been raised initially by Google in response to antitrust scrutiny.

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Speaker 1: I mean, first Google would say, you don't have to

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Speaker 1: worry about us. We have competition from Apple, and then

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Speaker 1: they would say we have competition for Facebook from Facebook.

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Speaker 1: And now they say we have competition from China. And

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Speaker 1: I think sort of all these big tech companies have

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Speaker 1: gotten together and decided that in students, instead of shooting

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Speaker 1: at each other, they'll just shoot at China. But the

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Speaker 1: real issue from an anti trust for perspective, is not China.

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Speaker 1: It's having a healthy US economy and a robust competitive

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Speaker 1: market and social networking. And I don't think the Chinese

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Speaker 1: playing that in any respect. Graham also asked Zuckerberg about

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Speaker 1: regulation in Europe, where a new General Data Protection regulation

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Speaker 1: or GDP or law is about to kick in. Tell

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Speaker 1: us about that. Yeah, Now, of course that's not that's

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Speaker 1: a privacy issue and not really an antitrust issue. But

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Speaker 1: generally speaking, the Europeans are way ahead of the United

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Speaker 1: States on concerns about privacy. They've been investigating breaches by

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Speaker 1: Google and by Facebook for quite some time, and there's

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Speaker 1: a new law that's coming into effect that essentially requires

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Speaker 1: affirmative consent by users before any use of their data

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Speaker 1: might be made. And even more than that June, it

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Speaker 1: prevents companies from saying take it or leave it. In

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Speaker 1: other words, you can't just say, hey, you want on

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Speaker 1: my side, you agree to my terms. The point is, uh,

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Speaker 1: you want to use user data, You've got to get affirmative,

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Speaker 1: knowledgeable consent. There's also another law on the works in

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Speaker 1: Europe behind that that would go even further. And the

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Speaker 1: big tech companies i am told are law being hard

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Speaker 1: against that. The antitrust division of the Justice Department under

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Speaker 1: Trump has seemed to be more expansive in attacking mergers.

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Speaker 1: We see the trial over the A T and T

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Speaker 1: Time Warner merger. Might it look at Facebook? Uh? First

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Speaker 1: of all, I think you're quite right that part of

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Speaker 1: the unpredictability of the Trump administration is they do seem

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Speaker 1: to be enforcing the n trust laws more than the

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Speaker 1: Obama administration did. Um. But is Facebook and the crosshres.

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Speaker 1: Most of the focus on Facebook. The scrutiny of Facebook

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Speaker 1: heretofore has been about privacy, and conversely, most of the

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Speaker 1: antitrust scrutiny and high tech has been about Google, and

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Speaker 1: so there are Google cases has very far ahead, both

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Speaker 1: in the United States and in Europe in terms of

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Speaker 1: investigation than anything and I trust wise involving Facebook, I mean,

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Speaker 1: I think the first order of business for the new

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Speaker 1: Federal Trade Commission when they're confirmed, just what they're going

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Speaker 1: to do about the alleged violation of the consent decree

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Speaker 1: they had with Facebook. But you know, they would have

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Speaker 1: to start a Facebook investigation from scratch. Might they do that?

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Speaker 1: Of course they might, is something that's going to happen

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Speaker 1: very soon. I doubt it. So the Senators and we're

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Speaker 1: talking a lot about regulating Facebook, and you know, it

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Speaker 1: looks like regulation is upon us, etcetera. They made all

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Speaker 1: these big statements, but what kind of regulation would it take.

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Speaker 1: And I'm talking about the monopoly aspect of Facebook as

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Speaker 1: well here, what kind of regulation would it take? What

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Speaker 1: would it look like if Congress actually did want to

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Speaker 1: pass something. Well, I uh, if we're talking about and

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Speaker 1: I trust in force spentthon, Congress doesn't really need to

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Speaker 1: pass anything. I mean, Congress needs to enforce what's there.

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Speaker 1: And as we've discussed in this interview, The way Facebook

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Speaker 1: got its dominant market position was that the anti trust

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Speaker 1: officials allowed Facebook to buy its too closest competitors. So

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Speaker 1: if you were looking at this anti trust wise and

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Speaker 1: you wanted to bring a case against Facebook, you'd have

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Speaker 1: to point out some anti competitive behavior that that really

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Speaker 1: hasn't been focused on yet. But then you would focus

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Speaker 1: on what kind of remedy you could get under the

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Speaker 1: anti trust laws, which would logically involve spinning off those

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Speaker 1: two companies, and it would focus on data. I think

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Speaker 1: the Europeans have said that data is a barrier to entry.

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Speaker 1: Small companies can't get the necessary data to compete with

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Speaker 1: a big company like Facebook, and so if you're going

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Speaker 1: to spin off any companies from Facebook, you would spend

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Speaker 1: them off with the same database that Facebook currently has,

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Speaker 1: making them robust competitors from day one. We have about

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Speaker 1: a minute and a half here, Gary. If you look

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Speaker 1: in the future, do you see any kind of regulation

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Speaker 1: of Facebook in the US on the horizon? In reality,

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Speaker 1: when you look at it, you know, I'm having done

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Speaker 1: this for many years now, I'm kind of cynical about

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Speaker 1: what Congress can do. The the likelihood is that not

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Speaker 1: a lot is going to happen. I think I have

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Speaker 1: to admit that, um, if something happens, it will be

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Speaker 1: the result of an administration of an initiative through the

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Speaker 1: Antitrust Division of the Department of Justice or through the

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Speaker 1: Federal Trade Commission, not I think through anything that Congress

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Speaker 1: has done. Thanks so much, Gary, it's it's been fascinating

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Speaker 1: and we will pick up with this, I'm sure again

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Speaker 1: in the future. That's Gary reback of car and Beryl.

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Speaker 1: President Trump discussed firing Deputy Attorney General Rod Rosenstein with

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Speaker 1: White House Aids yesterday. According to a person familiar with

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Speaker 1: the matter, Rosenstein is overseeing the Mall investigation, and Trump

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Speaker 1: appears to be ratcheting up his personal attacks on Mueller

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Speaker 1: this week as well, after an FBI raid on the

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Speaker 1: home and office of Trump's personal attorney. William Banks is

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Speaker 1: our guest. He's a professor at Syracuse University Law School. Bill.

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Speaker 1: We have discussed Trump's threats to fire Mueller in the

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Speaker 1: similarity Richard Nixon's Saturday night massacre. Would firing Rosenstein have

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Speaker 1: the same basic consequences, Well, it could, June Rosen. He

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Speaker 1: could order Rosenstein to to dismiss Mueller. Rosenstein would likely

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Speaker 1: decline to do that, because, as we've discussed before, there's

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Speaker 1: a Justice Department regulation that says that the Independent Council

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Speaker 1: Special Prosecutor can only be dismissed for cause for misseeasons

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Speaker 1: in an office, and certainly Mueller can't be reasonably accused

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Speaker 1: of that. So but fire Rosenstein? Could he fire Rosenstein? Yes,

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Speaker 1: he could do that and then try to replace him

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Speaker 1: with someone more inclined to rein in what he views

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Speaker 1: as as an investigation that's run off the rails. So

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Speaker 1: that would not be as precipitous an action as firing

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Speaker 1: Mueller or telling fire Muller. That's right, because after all,

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Speaker 1: these are executive branch officials. The President appoints uh these

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Speaker 1: officials with the advising consented Senate, so he generally has

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Speaker 1: the legal authority to remove them, and to remove them

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Speaker 1: for any reason at all, so long as the reason

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Speaker 1: isn't an unlawful reason. And here, because Jeff Sessions is

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Speaker 1: recused from the from the question surrounding this investigation, then

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Speaker 1: it's up to the deputy Attorney general. President doesn't like

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Speaker 1: the way the deputy Attorney general, he could do his job.

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Speaker 1: He could dismiss him. I think that would be a

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Speaker 1: politically very damaging thing for the president to do. But

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Speaker 1: of course he uh, you know, he hasn't let that

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Speaker 1: stop him in the past and probably won't let that

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Speaker 1: stop up him in the future. So Noah Feldman, a

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Speaker 1: professor at Harvard Law School and a Bloomberg View Columns,

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Speaker 1: has a new column entitled what if Trump fires Muller

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Speaker 1: and Mueller says no? And it talks about what might

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Speaker 1: happen if Trump tries to fire Muller without rescinding those

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Speaker 1: special counsel regulations you just spoke about. Muller is a

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Speaker 1: stickler for the letter of the law. Do you agree

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Speaker 1: that he would be within his rights and refusing to leave. Well,

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Speaker 1: if if Trump attempted to dismiss Muller without following the remove,

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Speaker 1: you know, without at first removing Rosenstein and then asking

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Speaker 1: Rosenstein's replacement to remove Muller, then I believe yes, it's

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Speaker 1: possible that if Trump tried to remove Muller directly, with

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Speaker 1: Rosenstein still in place and in violation of the regulations

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Speaker 1: that are still the law and the Justice Department, Muller

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Speaker 1: might well choose to hold ground and say I'm still

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Speaker 1: lawfully in my job and I'm going to continue to

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Speaker 1: do my job. And I've seen in Feltman's column in

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Speaker 1: that case, you could precipitate a crisis, a very serious

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Speaker 1: crisis like the one that was nearly upon us in

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Speaker 1: the Nixon administration after the Saturday Night massacre. We there

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Speaker 1: are some set to. Senators Lindsey Graham and Tom Tillis

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Speaker 1: have put together legislation to protect Mueller's job, but as

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Speaker 1: people have pointed out, they would need sixty seven Senators

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Speaker 1: and two thirds of the House to override a likely

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Speaker 1: veto from President Trump. So what might it be is

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Speaker 1: that why the Republicans are sort of hanging back on

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Speaker 1: that legislation because it would really put the spotlight on

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Speaker 1: on them. Well, they have been hanging back, as you say,

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Speaker 1: but certainly the mood has changed in Congress with these

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Speaker 1: recent rumblings from the from the White House. I think

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Speaker 1: this legislation should have been considered seriously several months ago

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Speaker 1: and was left to languish and commits. He if it

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Speaker 1: does smoke through committee now in the next week or two,

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Speaker 1: as it may, well they'll have a chance to pass it. Certainly,

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Speaker 1: even if if it's not capable of surviving a presidential

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Speaker 1: veto legislation would send a very strong signal to the

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Speaker 1: White House that, you know, disobeying the will of Congress here,

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Speaker 1: the majority of Congress, would put Trump in a very

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Speaker 1: bad light politically and set up likely grounds for impeachment

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Speaker 1: down the road. Bill. You know, we've talked so many

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Speaker 1: times about about the possibility that the President might fire

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Speaker 1: Muller and the different things he might do. He hasn't

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Speaker 1: done any of that yet. But does it seem to

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Speaker 1: you that this ratcheting up of his you know, of

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Speaker 1: his tweets against Mueller, direct personal attacks, now that it

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Speaker 1: might lead to something, might lead to something. I think

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Speaker 1: the other road that that the President might choose to

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Speaker 1: take care as the pressure increases now with Michael Cohen

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Speaker 1: under investigation, is to begin issuing pardons and to try

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Speaker 1: to clear the the way for himself by pardon he

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Speaker 1: knows who would otherwise be inclined to provide evidence that

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Speaker 1: could be used against him, if not in a court

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Speaker 1: of law eventually in an impeachment inquiry. Would those pardons

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Speaker 1: be looked at It's obviously he has the power to pardon,

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Speaker 1: but would those pardons be looked at as an obstruction

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Speaker 1: another obstruction of justice. They could they could down the road.

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Speaker 1: He as you say, clearly has a constitutional power to pardon.

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Speaker 1: But but if information comes out, uh, either before the

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Speaker 1: issuance of those pardons or after them in some other way,

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Speaker 1: then that information would be available to Congress to use

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Speaker 1: for its own purposes, as a political purposes. The impeachment,

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Speaker 1: of course, is a lawful process, but it's primarily driven politically,

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Speaker 1: so that could happen. And it's also you know, we

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Speaker 1: should remember in the case of Colin as well as

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Speaker 1: others who can under investigation, there's a possibility, even after

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Speaker 1: a pardon, that state governments, through their attorneys general, could

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Speaker 1: pursue charges against those who've been under investigation. The pardon

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Speaker 1: wouldn't affect the possible availability of state criminal prosecution, so

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Speaker 1: the information could come out that way. And we know

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Speaker 1: that Mueller is has already been working in concert with

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Speaker 1: the New York AG, so that seems likely. Thanks so much, Bill,

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Speaker 1: that's William Banks, the professor at Syracuse University Law School.

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Speaker 1: Thanks for listening to the Bloomberg Law Podcast. You can

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

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Speaker 1: and on Bloomberg Dot com Slash Podcast. I'm June Brosso.

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Speaker 1: This is Bloomberg