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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. This weekend, T

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Speaker 1: Mobile announced that it would acquire Sprint in a twenty

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Speaker 1: six point five billion dollar stock deal, But in today's trading,

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Speaker 1: both wireless carriers are suffering sharp declines amid investor fears

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Speaker 1: of antitrust action against the deal. It's being with Bloomberg

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Speaker 1: earlier today, T Mobile CEO John Ledger explained why the

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Speaker 1: deal is not anti competitive, and everybody today has a

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Speaker 1: thought four to three. It's not four to three. Come

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Speaker 1: on this, seven or eight key wireless players now, Charters

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Speaker 1: coming in anytime soon. Secondly, more important, here's my headline.

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Speaker 1: It's zero to one. There's nobody doing five g We're

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Speaker 1: going to be the first. That's what the country should

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Speaker 1: think about, all right. There is some debate about those numbers.

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Speaker 1: The deal would take the top four mobile carriers down

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Speaker 1: to three players, and he is talking about Charter and

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Speaker 1: some of the other players in the Field. Joining us

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Speaker 1: is Sarah Ford and Bloomberg News Corporate Influence editor And Sarah,

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Speaker 1: what makes the companies think that justice won't appear oppose

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Speaker 1: the deal now? And it opposed a merger of the

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Speaker 1: two companies in well, actually, yes, all the analysts who

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Speaker 1: are familiar with the an I trust framework are telling

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Speaker 1: us this is going to be a very difficult cell

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Speaker 1: to the n I Trust Division. Um. These companies have

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Speaker 1: actually been trying to combine in one way or another

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Speaker 1: for many years and they were already previously rebuffed when

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Speaker 1: soft Bank came to the DJ and said, you know,

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Speaker 1: can I do this deal? And he was told and

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Speaker 1: known certain terms to not even think about it. So, um, yes,

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Speaker 1: the companies have a framework. They're talking about other entrants,

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Speaker 1: but we're still looking at the top four players moving

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Speaker 1: into three if this deal were to to happen. And um,

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Speaker 1: the precedent is that the Antitrust Division just doesn't feel

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Speaker 1: that's enough competition and this already concentrated industry. Let me

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Speaker 1: ask you this, uh, if what is the advantage that

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Speaker 1: they might have, because if they are able to pull

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Speaker 1: off this creation of a five gene network, isn't that

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Speaker 1: part of the President's Infrastructure initiative anyway, I mean, wouldn't

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Speaker 1: they give them a little traction in this Well, clearly

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Speaker 1: the tension here is going to be interesting, and we

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Speaker 1: are very intent on making sure we have a champion

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Speaker 1: that can build out the five gen networks. So that

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Speaker 1: certainly will will be part of the debate, but that

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Speaker 1: is not part of the anti trust analysis. It's it's

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Speaker 1: an interesting issue, but it's really outside of the scope

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Speaker 1: of an antitrust review. And so the question here is,

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Speaker 1: you know, how concentrated is this market, how much choice

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Speaker 1: would be a left for consumers? UM And another very

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Speaker 1: important point on which we made in our mover this

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Speaker 1: morning is that the an Trust Division is already investigating

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Speaker 1: in the top two players in this industry A T

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Speaker 1: and T and Verizon for anti competitive conduct. So in

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Speaker 1: addition to the potential for more concentration, you're already seeing

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Speaker 1: potentially anti competitive behavior and that will really raise a

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Speaker 1: red flag UM if this deal, you know, for this review.

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Speaker 1: So so it's not looking pretty and that's I think

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Speaker 1: we can see the market is realizing that by the

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Speaker 1: fact that the stocks are down massively this morning. UM

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Speaker 1: on these concerns. Sarah Sprint is controlled by a Japanese company.

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Speaker 1: T Mobile is owned by a German company. So will

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Speaker 1: there be additional scrutiny by the Committee on Foreign Investments

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Speaker 1: in the US or CIFIOUS if we like to say yes,

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Speaker 1: and that is kind of the next shooter drop. We

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Speaker 1: do understand that there there will be a CIFIUS review.

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Speaker 1: The companies have already hired a CIFIUS council and so um,

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Speaker 1: that is a very opaque process. We are not privy

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Speaker 1: to to the reviews and the discussions and the decisions

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Speaker 1: you know, made by CIPHIUS until the very end. But

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Speaker 1: potentially there could be some concern about the foreign ownership,

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Speaker 1: although there's still questions about that because Soft Bake does

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Speaker 1: in fact already owned Sprint. And the June brought up

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Speaker 1: an interesting point earlier in this conversation that is about

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Speaker 1: exactly how many players are actually playing in this playing field.

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Speaker 1: Sprint claims, Uh, it's really more than four, seven or eight.

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Speaker 1: You have said the Big four? Where is it? And

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Speaker 1: how does Sprint come up with that number? Is it?

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Speaker 1: Are they dividing up who gets what piece of the pie? Well,

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Speaker 1: there are other you know, companies that have come in

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Speaker 1: and out of the space, you know, Comcast Charter, they

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Speaker 1: might you know, rent airspace from a big provider, they

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Speaker 1: might try to build their own wireless I mean they have,

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Speaker 1: they have been in and out of the market over

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Speaker 1: the years, but they aren't considered you know, the top

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Speaker 1: national players. And so yes, I think it does work

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Speaker 1: to the company's um framing to to say, oh, they're

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Speaker 1: all these other players in the market. But the real

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Speaker 1: question is how many people, well are really offering national

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Speaker 1: cell phone contract? How would that play in the argument

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Speaker 1: that they make, Well, they're really you know, the government

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Speaker 1: has shown in the past it's talking about, you know,

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Speaker 1: who are the top national providers. So if you are

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Speaker 1: in l A or if you are in New York,

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Speaker 1: you know who are you going to to get your

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Speaker 1: cell phone service from? So Syrah, the best good argument

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Speaker 1: they have is as you talked about the five G

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Speaker 1: and only be able to make the necessary investments if

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Speaker 1: they merge. But could they accomplish that in other ways

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Speaker 1: with a partnership for example, Well, certainly, and as I said,

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Speaker 1: the five G argument is an interesting one, but it

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Speaker 1: is it falls outside of the anti trust you know analysis,

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Speaker 1: So certainly they could find other ways to to work

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Speaker 1: on five G. Is there a timeline that you're watching

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Speaker 1: these These reviews take a long time. Um, you know

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Speaker 1: this would be a very in depth review. They're going

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Speaker 1: to analyze all aspects of the market. It could be months,

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Speaker 1: it could even be up to a year. Really and

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Speaker 1: UH will will be just about forty five seconds here.

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Speaker 1: The A T and T Time Warner UH dispute is

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Speaker 1: going to is that trial? If there's going to be

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Speaker 1: a decision within a short period of time we expect

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Speaker 1: from the judge. Will that have any influence on the

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Speaker 1: way justice handles this? I mean, these are very different deals. Um.

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Speaker 1: The A T and T Time Warner deal is a

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Speaker 1: vertical deal. It's about marrying a content provider with a distributor.

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Speaker 1: So this is this is outside of this particular review.

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Speaker 1: All right, Thank you, Sarah. That's Sarah Ford and Bloomberg

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Speaker 1: News Corporate Influence editor. After telling a judge that he

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Speaker 1: would invoke his Fifth Amendment right against self incrimination, Michael

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Speaker 1: Cohen won a temporary ninety day stay order in the

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Speaker 1: Stormy Daniel's lawsuit. He argued that he couldn't provide an

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Speaker 1: adequate defense against Daniel's claims that a hush agreement wasn't

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Speaker 1: enforceable without Cohen's testimony. Speaking during the election, then candidate

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Speaker 1: Trump for his thoughts on people who take the Fifth.

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Speaker 1: You see the mob takes a fifth. If you're innocent,

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Speaker 1: why you take in the fifth Amendment? Joining me as

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Speaker 1: former federal prosecutor Robert Mints, head of the white collar

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Speaker 1: and Criminal Investigation practice at mcarter in English, Bob, let's

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Speaker 1: start out with why people take the fifth and whether

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Speaker 1: you can believe them or not, because there's a lot

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Speaker 1: of skepticism about that. But generally do juries accept the

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Speaker 1: kind of testimony from people who flip more of from them?

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Speaker 1: They don't. Well, the fact is that they generally do.

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Speaker 1: Um cases typically are made not only with documents and

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Speaker 1: um what we would call sort of hard evidence, but

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Speaker 1: they also require testimony, and most of the time, or

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Speaker 1: at least in many federal cases, that testimony is given

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Speaker 1: through the eyes of one of the co conspirators themselves,

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Speaker 1: and that is what we would consider inform and testimony.

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Speaker 1: It really allows prosecutors to take the jury by the

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Speaker 1: hand and explain a crime as it is unfolding in

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Speaker 1: real time through the eyes and ears of someone who

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Speaker 1: participated in the actual criminal activity. Now let's turn back

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Speaker 1: to the day stay. Civil trials can take years and

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Speaker 1: years and parties get delays all the time. So is

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Speaker 1: this ninety days stay a big deal. Well, the circumstance

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Speaker 1: we have here where there is a criminal investigation that's

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Speaker 1: going on at the same time that there is this

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Speaker 1: civil case, is something that happens quite often, and usually

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Speaker 1: what will happen is there will not be a stay

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Speaker 1: in the civil proceeding. People are often whipsawed between the

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Speaker 1: civil case and the criminal case, where they have to

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Speaker 1: be concerned about protecting their Fifth Amendment right not to

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Speaker 1: incriminate themselves in the criminal case, but at the same

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Speaker 1: time they want to testify in the civil case. Hear.

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Speaker 1: What the judge did is he found that the likelihood

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Speaker 1: of an indictment here was was imminent, that it was

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Speaker 1: highly likely that Michael Own would be indicted, and so

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Speaker 1: he decided to allow the civil case to be stayed

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Speaker 1: for ninety days to see what happens in the case.

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Speaker 1: Because once there's an indictment, then the case to stay

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Speaker 1: the civil case is much stronger. And that's a circumstance

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Speaker 1: where usually judges will stay the civil case once an

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Speaker 1: individual husband indicted. So you had a judge in l

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Speaker 1: A talking about an indictment in the Southern District of

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Speaker 1: New York. Is that unusual for a judge to make

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Speaker 1: a prediction like that that Cohen will probably be indicted.

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Speaker 1: It is unusual, But I think what the reason the

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Speaker 1: judge did it is because the standard is fairly high

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Speaker 1: to stay a civil case when there's only a criminal

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Speaker 1: investigation going on. So in this case, I think the

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Speaker 1: judge wanted to buy some time to see what happens

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Speaker 1: within the next ninety days. He made a particular finding

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Speaker 1: that this case was not a simple criminal investigation. That's

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Speaker 1: an investigation into the personal attorney of a sitting president

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Speaker 1: re earning documents that might be subject to the attorney

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Speaker 1: client privilege. I think because the stakes were so high here,

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Speaker 1: what the judge wanted to do was wait ninety days

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Speaker 1: and see what happens in the criminal case before he

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Speaker 1: makes a final decision about whether to stay the civil case.

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Speaker 1: The speculation about whether Cohen would flip or cooperate with

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Speaker 1: prosecutors seemed to reach this fever pitch after Trump's interview

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Speaker 1: on Fox and Friends last week, where he tried to

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Speaker 1: distance himself from Cohen, saying he only did a tiny, tiny,

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Speaker 1: little fraction. That's a quote of his legal work. Is

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Speaker 1: it time for Cohen to play let's make a deal.

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Speaker 1: If he were your client, what would you do? Well,

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Speaker 1: nobody really knows what's going on in Michael Cohen's head,

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Speaker 1: except I think it's safe to say that he's probably

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Speaker 1: not getting a lot of sleep these days. He's put

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Speaker 1: in a difficult situation, and what his lawyers are probably

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Speaker 1: advising him is to wait and see what happens. There's

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Speaker 1: really no downside in waiting and allowing the criminal case

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Speaker 1: to play out, to see if, in fact, he's actually charged,

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Speaker 1: and to see what that case looks like before he

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Speaker 1: makes a decision about whether he'll cooperate. He would be

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Speaker 1: six a valuable witness for the government that federal prosecutors

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Speaker 1: would no doubt gladly sign him up, whether that was

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Speaker 1: before or after an indictment. Bob, explain what happens when

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Speaker 1: prosecutors go to the go to the defendant and ask

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Speaker 1: them to flip, and when the defendant goes to them

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Speaker 1: and ask for a deal. Well, what usually happens is

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Speaker 1: that prosecutors will explain that a defendant is facing serious charges,

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Speaker 1: that the defendant is facing significant amount of time in jail,

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Speaker 1: and if the defendant agrees to cooperate with the government

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Speaker 1: and provide them with what's called substantial assistance, that at

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Speaker 1: the appropriate time at the sentencing months or perhaps even

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Speaker 1: years down the road, prosecutors will inform the judge of

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Speaker 1: this valuable consideration, and the judge will be able to

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Speaker 1: take that into consideration at the time of sentencing. There's

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Speaker 1: no promise as to what the sentence will be. In

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Speaker 1: the federal courts, there is no lighter plea, so there's

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Speaker 1: no plea bargain at the time of the entry of

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Speaker 1: the plea. It's really all dependent upon how valuable that

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Speaker 1: cooperation is at the end of the day. And that's

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Speaker 1: how prosecutors are able to hold a hammer over the

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Speaker 1: head of the defendant throughout the case because they don't

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Speaker 1: know what their sentence will be. They don't know how

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Speaker 1: valuable their cooperation will be until after it's completed. And

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Speaker 1: Mueller's prosecutors are holding several hammers right now over different

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Speaker 1: people in this investigation. One other point about Cohen is,

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Speaker 1: no matter what he pleads to, would he tend to

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Speaker 1: be likely to lose his law license. Well, that's up

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Speaker 1: to a different um body. That would be up to

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Speaker 1: the to the bar of the State of New York UM.

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Speaker 1: But typically if lawyers plead guilty to crimes involving felonies,

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Speaker 1: they're likely to be suspended and likely to be disbarred.

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Speaker 1: Turning to the Stormy Daniels and and her attorney there

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Speaker 1: in the Southern District right now, there's a special master

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Speaker 1: appointed to go through the various documents and and hard drives,

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Speaker 1: etcetera that were seized in that raid on Cohen's office,

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Speaker 1: and Stormy Daniel's lawyer asked to be allowed to join

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Speaker 1: the case because of the evidence seized. Is that something

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Speaker 1: that the judge is likely to allow? I don't think

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Speaker 1: so at this point. I mean, on the one hand,

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Speaker 1: the lawyer for Stormy Daniels can make the argument that

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Speaker 1: the government and Cohen's lawyers have acknowledged that the one

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Speaker 1: hundred and thirty thousand dollar payment that's the subject of

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Speaker 1: the Stormy Daniels case was among the information that was

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Speaker 1: seized in the search warrants. So there is a claim

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Speaker 1: that the evidence that was seized in the search of

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Speaker 1: Michael Cohen's office and his apartment and his hotel room

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Speaker 1: could implicate the Stormy Daniels case. I think at this

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Speaker 1: point the judge is going to allow this Special Master

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Speaker 1: to go through the evidence to call out what would

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Speaker 1: be considered attorney client privilege at to share that information

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Speaker 1: UM with UM the President and his lawyers and Mr

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Speaker 1: Cohen and his lawyers, and see how that shakes out.

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Speaker 1: But it is quite possible that at some point Stormy

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Speaker 1: daniels lawyers will also get access to that information if

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Speaker 1: it's clear that it's relevant to their case as well.

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Speaker 1: All right, well, we will be hearing more about this,

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Speaker 1: certainly from Stormy Daniel's lawyer, who is uh as a

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Speaker 1: popular on Twitter, it seems as many other people. Thanks

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Speaker 1: so much, Bob. That's Robert Menzi's ahead of the White

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Speaker 1: collar and Criminal Investigation practice at McCarter in English. Thanks

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

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

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Speaker 1: on Bloomberg dot com slash podcast. I'm June Brasso. This

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Speaker 1: is Bloomberg