1 00:00:00,440 --> 00:00:05,640 Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio. 2 00:00:06,000 --> 00:00:09,000 Speaker 1: As Americans return to the workplaces they left months ago, 3 00:00:09,440 --> 00:00:13,200 Speaker 1: employers are wrestling with the legal risks ahead. Some workers 4 00:00:13,200 --> 00:00:15,400 Speaker 1: are bound to get sick, and many will end up 5 00:00:15,400 --> 00:00:19,720 Speaker 1: in court demanding safer working conditions or compensation for lost 6 00:00:19,760 --> 00:00:23,200 Speaker 1: wages and medical bills. Joining me is Samuel Striker, Or, 7 00:00:23,239 --> 00:00:25,720 Speaker 1: professor at n y U Law School and the director 8 00:00:25,760 --> 00:00:29,240 Speaker 1: of the Center for Labor and Employment. Some employees have 9 00:00:29,360 --> 00:00:33,440 Speaker 1: already filed lawsuits against McDonald's and Amazon for not doing 10 00:00:33,600 --> 00:00:37,360 Speaker 1: enough to keep workers free of coronavirus, even though those 11 00:00:37,400 --> 00:00:41,160 Speaker 1: companies have promised to follow health guidelines such as maintaining 12 00:00:41,240 --> 00:00:46,760 Speaker 1: social distance, improving sanitation, and providing personal protective gear. So 13 00:00:46,800 --> 00:00:50,320 Speaker 1: how do companies know what the standard is what they 14 00:00:50,360 --> 00:00:53,640 Speaker 1: should be working toward. Well, there's no absolute guarantee here, 15 00:00:53,880 --> 00:00:58,240 Speaker 1: but if they follow the guidance of the various agencies, 16 00:00:58,280 --> 00:01:01,400 Speaker 1: and which would be the Department of Labor, the Equal 17 00:01:01,400 --> 00:01:05,679 Speaker 1: Employment Opportunity Commission, and the state and local government guidances, 18 00:01:05,840 --> 00:01:08,160 Speaker 1: should be a pre low risk of of litigation. On 19 00:01:08,200 --> 00:01:11,520 Speaker 1: the other hand, it's not full proof because they may 20 00:01:11,720 --> 00:01:14,800 Speaker 1: follow all that guidance and someone comes in and contracts 21 00:01:15,240 --> 00:01:18,720 Speaker 1: the virus and he has complications with his underlying condition, 22 00:01:19,000 --> 00:01:20,920 Speaker 1: so it's not full proof. This is one reason why 23 00:01:20,920 --> 00:01:24,000 Speaker 1: the Business to be the is seeking legislation to provide 24 00:01:24,000 --> 00:01:27,200 Speaker 1: for a liability shield. Well, there's no absolute guarantee here, 25 00:01:27,440 --> 00:01:31,360 Speaker 1: but if they follow the guidance of the various agencies, 26 00:01:31,400 --> 00:01:34,479 Speaker 1: and which would be the Department of Labor, the Equal 27 00:01:34,520 --> 00:01:38,720 Speaker 1: Employment Opportunity Commission, and the state and local government guidances, 28 00:01:38,840 --> 00:01:41,039 Speaker 1: should be a pre low risk of litigation. On the 29 00:01:41,040 --> 00:01:44,880 Speaker 1: other hand, it's not full proof because they may follow 30 00:01:44,920 --> 00:01:47,680 Speaker 1: all that guidance and someone comes in and contracts the 31 00:01:47,800 --> 00:01:51,320 Speaker 1: virus and he has complications with his underlying connition, so 32 00:01:51,480 --> 00:01:53,280 Speaker 1: it's not full proof. This is one reason why the 33 00:01:53,280 --> 00:01:56,360 Speaker 1: Business to be the is seeking legislation that provide for 34 00:01:56,400 --> 00:02:01,160 Speaker 1: a liability shield. Well, most employees end up filing workers 35 00:02:01,320 --> 00:02:05,120 Speaker 1: complaims if they come down with something. I think so 36 00:02:05,560 --> 00:02:08,680 Speaker 1: most employees will. And I've actually looked at the New 37 00:02:08,760 --> 00:02:10,720 Speaker 1: York state law, which I am more familiar with in 38 00:02:10,800 --> 00:02:13,000 Speaker 1: of the states. I think they've got a good argument 39 00:02:13,040 --> 00:02:16,200 Speaker 1: that the contracting of the of the virus is covered 40 00:02:16,200 --> 00:02:19,000 Speaker 1: by workers compensation, and what that means is there will 41 00:02:19,040 --> 00:02:22,240 Speaker 1: be a no fault proceeding before an ad ministry of agency, 42 00:02:22,520 --> 00:02:25,640 Speaker 1: and there will be some possibility of getting compensation for 43 00:02:25,720 --> 00:02:30,360 Speaker 1: loss pay and for a medical treatment. It's not clear, 44 00:02:30,440 --> 00:02:32,840 Speaker 1: but I think that's where the law is going to go. 45 00:02:33,680 --> 00:02:37,400 Speaker 1: I note that, for example, of California's governor has issued 46 00:02:37,400 --> 00:02:40,480 Speaker 1: an executive order to make clear that employees who contracted 47 00:02:40,480 --> 00:02:42,680 Speaker 1: the virus are covered by workers comp would be very 48 00:02:42,680 --> 00:02:45,560 Speaker 1: surprised at New York asn't follows. Would they have to 49 00:02:45,639 --> 00:02:49,400 Speaker 1: prove that they got the virus at work. They would 50 00:02:49,400 --> 00:02:52,520 Speaker 1: have to prove that it's workplace related, but it shouldn't 51 00:02:52,520 --> 00:02:55,840 Speaker 1: be that hard because most employers are going to require 52 00:02:56,280 --> 00:02:59,000 Speaker 1: to be a temperature check before the employee comes back 53 00:02:59,040 --> 00:03:01,840 Speaker 1: to work. And we'll also require some evidence that the 54 00:03:01,880 --> 00:03:04,400 Speaker 1: person Canada turns to work and others, a person who's 55 00:03:04,440 --> 00:03:08,079 Speaker 1: not actively under the under the illness. So if that's 56 00:03:08,120 --> 00:03:10,400 Speaker 1: the case, we have information at time one when the 57 00:03:10,400 --> 00:03:13,680 Speaker 1: employee enters the workplace, and if something happens afterwards, all 58 00:03:13,720 --> 00:03:15,960 Speaker 1: of a sudden the employee has contracted as the virus, 59 00:03:16,000 --> 00:03:18,880 Speaker 1: then we have some proof of causation. In other words, 60 00:03:18,880 --> 00:03:21,160 Speaker 1: of time one when they entered into the workplace, they 61 00:03:21,160 --> 00:03:23,800 Speaker 1: don't have the temperature, they don't have a high temperature, 62 00:03:23,960 --> 00:03:26,240 Speaker 1: and they've been cleared by a doctor, and now at 63 00:03:26,280 --> 00:03:29,280 Speaker 1: some later point after working there, now they have the virus. 64 00:03:29,360 --> 00:03:31,840 Speaker 1: I think they can prove causation. The problem is how 65 00:03:31,919 --> 00:03:34,600 Speaker 1: much compensation can you get for just contracting the virus. 66 00:03:35,200 --> 00:03:37,800 Speaker 1: That's what what constitutes an injury here. That's the problem. 67 00:03:37,920 --> 00:03:40,080 Speaker 1: To be abill, get some medical treatment if you're not covered, 68 00:03:40,240 --> 00:03:42,440 Speaker 1: but be hard to prove that you have an injury. 69 00:03:42,520 --> 00:03:45,200 Speaker 1: Of course, if if God forbid you get an injury, 70 00:03:45,240 --> 00:03:47,880 Speaker 1: then the injury will be easily proven. The the great 71 00:03:47,960 --> 00:03:50,960 Speaker 1: virtue of the worker's compensation system is that it's no fault. 72 00:03:51,120 --> 00:03:52,720 Speaker 1: The only thing you have to improve that there was 73 00:03:52,720 --> 00:03:56,760 Speaker 1: workplace related and that it's a covered illness, covered accident 74 00:03:56,880 --> 00:03:58,600 Speaker 1: or illness, and you don't have to prove that the 75 00:03:58,600 --> 00:04:00,960 Speaker 1: employer was negligent. That's the great virtue of it. The 76 00:04:01,000 --> 00:04:05,080 Speaker 1: emphasis is on compensation. The negative side of workers compensation 77 00:04:05,160 --> 00:04:09,040 Speaker 1: is if you have serious injuries from contracting the virus, 78 00:04:09,360 --> 00:04:13,000 Speaker 1: and then workers compensation is not as good avenue for 79 00:04:13,120 --> 00:04:16,080 Speaker 1: you as would a tort suld be. And that's because 80 00:04:17,000 --> 00:04:20,320 Speaker 1: the worker's compensation system doesn't do as good a job 81 00:04:20,480 --> 00:04:25,599 Speaker 1: and and putting a damaged value on serious diseases serious 82 00:04:25,640 --> 00:04:28,880 Speaker 1: illnesses as would a torch suit. This is very different 83 00:04:28,920 --> 00:04:31,440 Speaker 1: from what the assumption was back at the turn of 84 00:04:31,440 --> 00:04:34,880 Speaker 1: the twentieth century when the svarious states enacted these laws, 85 00:04:34,920 --> 00:04:37,479 Speaker 1: where the assumption was that when with the employee has 86 00:04:37,520 --> 00:04:39,040 Speaker 1: to go to the court that will lose. I think 87 00:04:39,040 --> 00:04:43,400 Speaker 1: the assumption now is different. So would you suggest that 88 00:04:43,560 --> 00:04:48,719 Speaker 1: employers not fight these claims, just give up and pay 89 00:04:49,279 --> 00:04:54,080 Speaker 1: absolutely they lose something they have a claim is made 90 00:04:54,279 --> 00:04:57,839 Speaker 1: because it will increase their insurance and it's called experience ratings. 91 00:04:58,240 --> 00:05:00,400 Speaker 1: In other words, the employers have to pay more than 92 00:05:00,440 --> 00:05:03,159 Speaker 1: more claims they've made, but it's still a kind of 93 00:05:03,200 --> 00:05:05,880 Speaker 1: homogenization with all the other claims, and it will be 94 00:05:06,000 --> 00:05:08,599 Speaker 1: less than they think. So I would say if a 95 00:05:08,640 --> 00:05:13,520 Speaker 1: person comes in and intacted the virus file for workers compensation, 96 00:05:13,640 --> 00:05:16,280 Speaker 1: I think it's in the employer's interests to not contest 97 00:05:16,279 --> 00:05:19,240 Speaker 1: it because they will then have the liability shield that 98 00:05:19,320 --> 00:05:21,479 Speaker 1: the business community is seeing. You will have an under 99 00:05:21,480 --> 00:05:25,400 Speaker 1: workers comp because workers provides that you can't pursue any 100 00:05:25,440 --> 00:05:28,800 Speaker 1: other action against the employer. Other than what's provided for 101 00:05:29,040 --> 00:05:32,680 Speaker 1: in the workers compensation scheme. What about the proposals for 102 00:05:32,800 --> 00:05:35,600 Speaker 1: a liability shield, and would be the very unusual law 103 00:05:35,680 --> 00:05:39,039 Speaker 1: to also block state court lawsuits state law lawsuits. But 104 00:05:39,160 --> 00:05:40,560 Speaker 1: yet so it only come to Congress. So that has 105 00:05:40,600 --> 00:05:44,000 Speaker 1: to be agreeing to the Democratic Party, which is very 106 00:05:44,080 --> 00:05:47,760 Speaker 1: much influenced by the plaintiff community, to lawyer community, and 107 00:05:47,800 --> 00:05:50,960 Speaker 1: the Republican Party, which is very much influenced by businesses. 108 00:05:51,040 --> 00:05:52,680 Speaker 1: So they're gonna be a little bit louder heads and 109 00:05:53,000 --> 00:05:54,960 Speaker 1: I would be surprised if we come to an agreement. 110 00:05:55,120 --> 00:05:58,719 Speaker 1: Credit Suite estimates that COVID nine team will result in 111 00:05:58,880 --> 00:06:02,720 Speaker 1: five billion dollars in workers comp claims. Can the system 112 00:06:02,800 --> 00:06:06,320 Speaker 1: handle all those claims? It might be overrun, Well, it 113 00:06:06,400 --> 00:06:09,400 Speaker 1: might be us. It's gonna be a challenge to the system. 114 00:06:09,560 --> 00:06:12,000 Speaker 1: It may need to be some support from the government. 115 00:06:12,360 --> 00:06:15,760 Speaker 1: We don't really know. There's a lot of conjecture going on. 116 00:06:16,120 --> 00:06:18,880 Speaker 1: Will people file a claim just because they contract the 117 00:06:19,000 --> 00:06:21,880 Speaker 1: virus and test positives? We don't know. You know, maybe 118 00:06:21,880 --> 00:06:24,120 Speaker 1: they stay away for a week or two, the employer 119 00:06:24,240 --> 00:06:26,320 Speaker 1: gives them paid leave for that period of time, and 120 00:06:26,360 --> 00:06:27,839 Speaker 1: they decided to come back to work. And they don't 121 00:06:27,839 --> 00:06:30,040 Speaker 1: file a claim. We really don't know how big this 122 00:06:30,120 --> 00:06:32,760 Speaker 1: is going to be, but if they don't have the money, 123 00:06:32,800 --> 00:06:35,760 Speaker 1: they will have to get assistance from the government. And 124 00:06:35,800 --> 00:06:39,080 Speaker 1: it will also factor in the experience rating, the premium 125 00:06:39,080 --> 00:06:42,760 Speaker 1: that employers have to pay. So what cases will get 126 00:06:42,800 --> 00:06:46,760 Speaker 1: decided in courts? What cases will employees be able to 127 00:06:46,760 --> 00:06:50,440 Speaker 1: bring lawsuits for? One category of cases will be cases 128 00:06:50,480 --> 00:06:54,520 Speaker 1: where employees are not classified, where the providers of services 129 00:06:54,520 --> 00:06:58,560 Speaker 1: are not classified as employees. If they're not classified as employees, 130 00:06:59,120 --> 00:07:02,240 Speaker 1: then they're not by workers comp. Uh. So here in 131 00:07:02,240 --> 00:07:06,359 Speaker 1: a way, employers will will will suffer uh penalty or 132 00:07:06,440 --> 00:07:09,720 Speaker 1: disadvantage because of their classification decisions. So the gig workers, 133 00:07:09,760 --> 00:07:13,240 Speaker 1: you know, the people that deliver food to homes, uh, 134 00:07:13,800 --> 00:07:16,160 Speaker 1: the uber drivers, there's going to be an argument that 135 00:07:16,200 --> 00:07:19,440 Speaker 1: they're not covered by workers comp because the employers classified 136 00:07:19,520 --> 00:07:22,120 Speaker 1: them as independent contractors. So that's one group of cases 137 00:07:22,440 --> 00:07:24,640 Speaker 1: and will end up in court. The second group of 138 00:07:24,640 --> 00:07:26,640 Speaker 1: cases that will end up in court, you know, all 139 00:07:26,680 --> 00:07:31,920 Speaker 1: like cases where the employee contracts the virus, but that 140 00:07:32,000 --> 00:07:36,840 Speaker 1: leads to an exacerbation of serious underlying physical conditions. Those 141 00:07:36,840 --> 00:07:40,120 Speaker 1: are cases that are lacking to attract the competent plane 142 00:07:40,160 --> 00:07:42,640 Speaker 1: of lawyer, and the plane of lawyer is going to 143 00:07:42,680 --> 00:07:44,960 Speaker 1: want to go to court to get the advantage of 144 00:07:45,000 --> 00:07:48,280 Speaker 1: a jurior trial and the higher valuation of risk to 145 00:07:48,400 --> 00:07:51,360 Speaker 1: life and limb that will now get in court as 146 00:07:51,360 --> 00:07:54,200 Speaker 1: opposed to workers comp I think those are the two 147 00:07:54,280 --> 00:07:58,560 Speaker 1: categories of cases. Is there a possibility that workers could 148 00:07:58,600 --> 00:08:03,200 Speaker 1: sue under ivacy laws? Yes, there are other kinds of 149 00:08:03,240 --> 00:08:06,200 Speaker 1: lasses that are possible. I mean there could be discrimination. So, 150 00:08:06,280 --> 00:08:10,160 Speaker 1: for example, if the employer treats older workers differently than 151 00:08:10,280 --> 00:08:13,320 Speaker 1: younger workers in the assignment of jobs and stuff likes, 152 00:08:13,320 --> 00:08:15,520 Speaker 1: that that would be an age discrimination losses that would 153 00:08:15,520 --> 00:08:18,240 Speaker 1: not be barred. If there are privacy claims that would 154 00:08:18,280 --> 00:08:19,960 Speaker 1: also not be bored. I would think that the privacy 155 00:08:20,000 --> 00:08:23,320 Speaker 1: claims would be hard to bring. If the government is 156 00:08:23,360 --> 00:08:27,040 Speaker 1: saying we insist that you test for the virus before 157 00:08:27,080 --> 00:08:29,720 Speaker 1: you let the person return to work, it'd be just 158 00:08:29,760 --> 00:08:31,680 Speaker 1: a harder case to bring, harder case to argue that 159 00:08:31,720 --> 00:08:34,880 Speaker 1: was no reasonable invasion of privacy. But in general, the 160 00:08:34,920 --> 00:08:38,840 Speaker 1: exclusivity prevision of the Workers Camp Law would apply only 161 00:08:38,920 --> 00:08:43,280 Speaker 1: to toward actions for physical or mental injuries as that 162 00:08:43,360 --> 00:08:46,040 Speaker 1: occurs in the workplace. It would not bar other kinds 163 00:08:46,040 --> 00:08:48,600 Speaker 1: of losses. I would argue the case for is pretty 164 00:08:48,600 --> 00:08:51,240 Speaker 1: clear as of sexual harassment claims are usually not bored 165 00:08:51,280 --> 00:08:55,120 Speaker 1: by workers. Intentional wrongs are not barred by worker ascomplisies 166 00:08:55,160 --> 00:08:58,080 Speaker 1: who can argue that what the employers did was intentionally 167 00:08:58,480 --> 00:09:03,320 Speaker 1: dangerous or the for disregarded obvious risks. And I said, 168 00:09:03,320 --> 00:09:05,120 Speaker 1: maybe the argument is being made in some of the 169 00:09:05,160 --> 00:09:09,600 Speaker 1: meat packing plant cases. Typically, workers compensation does not bar 170 00:09:10,240 --> 00:09:15,160 Speaker 1: lawsuits for gross negligence or recklessness or intentional long So 171 00:09:15,240 --> 00:09:18,760 Speaker 1: there are three categories of cases. One is where the 172 00:09:18,800 --> 00:09:22,280 Speaker 1: workers are not classified as workers. The service providers are 173 00:09:22,320 --> 00:09:25,520 Speaker 1: classified as independent contractors. They would have a strong argument 174 00:09:25,559 --> 00:09:27,680 Speaker 1: that they're not bound by workers comp. They're not covered 175 00:09:27,679 --> 00:09:29,440 Speaker 1: by Workers CAMP. They may want to be covered by 176 00:09:29,480 --> 00:09:33,280 Speaker 1: workers com of these different issues. Number two where the 177 00:09:33,440 --> 00:09:37,080 Speaker 1: exposure to the virus leads to an exacerbation of underlying 178 00:09:37,120 --> 00:09:40,320 Speaker 1: conditions resulting in a very serious injury due to worker. 179 00:09:41,120 --> 00:09:43,040 Speaker 1: That is a case that would be covered by workers 180 00:09:43,040 --> 00:09:44,840 Speaker 1: COMPA where the plane of Floyer may have a strong 181 00:09:44,880 --> 00:09:47,719 Speaker 1: incentive to take that case out of Workers COMB so 182 00:09:47,760 --> 00:09:50,560 Speaker 1: they can have the advantage of a toward action in 183 00:09:50,640 --> 00:09:53,400 Speaker 1: court in front of the jury and third category of 184 00:09:53,480 --> 00:09:56,360 Speaker 1: cases to I think be relatively rare, where you could 185 00:09:56,360 --> 00:10:01,800 Speaker 1: show that the employer acted in reckless disregard of dangers 186 00:10:01,920 --> 00:10:06,640 Speaker 1: or intentionally acted UH to expose the work or two 187 00:10:07,040 --> 00:10:10,040 Speaker 1: dangerous that would it would be harder to prove if 188 00:10:10,080 --> 00:10:13,360 Speaker 1: in fact much harder to prove if the employers complying 189 00:10:13,360 --> 00:10:15,880 Speaker 1: with all of the guidances they're out there. I want 190 00:10:15,880 --> 00:10:18,960 Speaker 1: to ask you about OSHA for a moment, because OSHA 191 00:10:19,000 --> 00:10:23,040 Speaker 1: has been criticized for not doing enough. What's your take 192 00:10:23,080 --> 00:10:26,520 Speaker 1: on OSHA's involvement. I don't know what they want OSHA 193 00:10:26,600 --> 00:10:29,040 Speaker 1: to do. Because OSHA does too much, they're not gonna 194 00:10:29,080 --> 00:10:32,920 Speaker 1: have a toward action. This is the the flip side 195 00:10:32,960 --> 00:10:36,319 Speaker 1: of it. But I think the guidance, the guidance from 196 00:10:36,320 --> 00:10:39,080 Speaker 1: OSHA could be a little more directive and saying if 197 00:10:39,080 --> 00:10:42,080 Speaker 1: you do X, Y and Z, then we will regard 198 00:10:42,280 --> 00:10:46,280 Speaker 1: what you're doing to be reasonable and light as what 199 00:10:46,400 --> 00:10:48,400 Speaker 1: we now know about COVID No, it's a much more 200 00:10:48,400 --> 00:10:52,200 Speaker 1: explicit statement that you follow this this format. But I 201 00:10:52,200 --> 00:10:54,520 Speaker 1: don't think they could do more. Oshan has three things. 202 00:10:54,520 --> 00:10:57,640 Speaker 1: They have three tools. One tools they can inspect workplaces 203 00:10:57,720 --> 00:10:59,600 Speaker 1: and that can still go on that if they get 204 00:10:59,600 --> 00:11:05,120 Speaker 1: complained it's from workers that they're being exupposed to unreasonable conditions. 205 00:11:05,440 --> 00:11:07,920 Speaker 1: Those inspections can still go on. They would go on 206 00:11:08,040 --> 00:11:11,559 Speaker 1: case by case. The second possibility is to pro promulgate 207 00:11:11,600 --> 00:11:14,120 Speaker 1: a rule, and this is something that the a f 208 00:11:14,240 --> 00:11:17,559 Speaker 1: l SELE sought recently. The a sl SALE is the 209 00:11:17,679 --> 00:11:20,560 Speaker 1: lead labor union organization. They saw it recently and they 210 00:11:20,640 --> 00:11:23,440 Speaker 1: lost in the courts if they couldn't get such an 211 00:11:23,440 --> 00:11:27,040 Speaker 1: emergency rule from the agency. If the agency promulgates such 212 00:11:27,120 --> 00:11:29,520 Speaker 1: rules gonna take time. It's not something can happen overnight, 213 00:11:30,160 --> 00:11:33,240 Speaker 1: very hard to do. It will take time that various 214 00:11:33,240 --> 00:11:36,840 Speaker 1: procedures involved. And I'm not sure the rule will go 215 00:11:36,960 --> 00:11:38,880 Speaker 1: much further than the guidance. I think they could be 216 00:11:38,920 --> 00:11:42,079 Speaker 1: a little more. They said more directed in the guidance 217 00:11:42,240 --> 00:11:45,080 Speaker 1: in saying to employers, do X, Y and Z, and 218 00:11:45,160 --> 00:11:47,760 Speaker 1: they will be our position if you have not violated 219 00:11:47,760 --> 00:11:50,400 Speaker 1: OSHA and if you've acted reasonably, that would give some 220 00:11:50,520 --> 00:11:54,439 Speaker 1: comfort to the employers. I don't savor a liability shields 221 00:11:55,040 --> 00:11:58,679 Speaker 1: because workplaces are different and I think it could be abused. 222 00:11:58,920 --> 00:12:02,760 Speaker 1: But I do favor clear guidance to employers, so they're 223 00:12:02,760 --> 00:12:05,720 Speaker 1: not trapped. They're ordering the person the employee, back to work, 224 00:12:05,720 --> 00:12:09,199 Speaker 1: and their reasonably certain they won't be sued. I'm not sure. 225 00:12:09,280 --> 00:12:11,319 Speaker 1: And the third thing the Ocean can doing is also 226 00:12:11,440 --> 00:12:15,360 Speaker 1: just bring administrative proceedings if they find an unreasonable set 227 00:12:15,360 --> 00:12:18,240 Speaker 1: of working conditions that can still go on. I think 228 00:12:18,280 --> 00:12:21,200 Speaker 1: the criticism here is that they haven't promulgated a rule, 229 00:12:21,600 --> 00:12:23,880 Speaker 1: and again it's not that easy to promulgator rule. Is 230 00:12:23,920 --> 00:12:26,840 Speaker 1: gonna have to be a public notice and commentary review. 231 00:12:27,200 --> 00:12:28,920 Speaker 1: As I say, I think the agency could do more 232 00:12:28,960 --> 00:12:33,800 Speaker 1: and quicker with a better written guidance. Does it seem 233 00:12:33,840 --> 00:12:37,160 Speaker 1: as if no matter what employers do, they're likely going 234 00:12:37,200 --> 00:12:40,760 Speaker 1: to be facing these at least the workers com claims 235 00:12:40,840 --> 00:12:44,160 Speaker 1: for COVID nineteen. As the country goes back to work 236 00:12:44,480 --> 00:12:48,200 Speaker 1: and you know, we start to see more cases, perhaps 237 00:12:48,240 --> 00:12:51,120 Speaker 1: a second wave. All the employers can do right now, 238 00:12:51,160 --> 00:12:56,240 Speaker 1: it seems to me, is follow the guidances scrupulously, and 239 00:12:56,240 --> 00:12:59,600 Speaker 1: then that means sanitize in the workplace, and it means 240 00:12:59,679 --> 00:13:04,320 Speaker 1: social distancing. Insisting on the wearing of naps, periodic washing 241 00:13:04,320 --> 00:13:07,280 Speaker 1: of hands as much as they can not all workplaces 242 00:13:07,400 --> 00:13:10,840 Speaker 1: will actually permit social distancing. But to the extent it 243 00:13:10,920 --> 00:13:13,480 Speaker 1: can be done, it should be does. And also employers 244 00:13:13,520 --> 00:13:17,240 Speaker 1: should take a little more generously workers complaints they see 245 00:13:17,320 --> 00:13:20,840 Speaker 1: because it's really to their advantage the employees to proceed 246 00:13:21,080 --> 00:13:24,640 Speaker 1: under workers pump. That's Professor Samuel S. Striker of n 247 00:13:24,800 --> 00:13:27,520 Speaker 1: y U Law School. I mean. Next on Bloomberg Law, 248 00:13:27,880 --> 00:13:30,000 Speaker 1: Michael Flynn takes his case to the d c A 249 00:13:30,080 --> 00:13:36,320 Speaker 1: Pelot Court and June Russo and this is Bloomberg three 250 00:13:36,400 --> 00:13:39,280 Speaker 1: dc A Pellet Court judges will decide whether or not 251 00:13:39,320 --> 00:13:42,840 Speaker 1: to issue an extraordinary order forcing the dismissal of the 252 00:13:42,880 --> 00:13:46,920 Speaker 1: case against former National Security advisor Michael Flynn. At the 253 00:13:47,040 --> 00:13:51,199 Speaker 1: oral arguments, the judges appeared wary of undertaking the drastic 254 00:13:51,280 --> 00:13:54,640 Speaker 1: remedy of stepping into the case when Judge Emmett Sullivan 255 00:13:54,679 --> 00:13:57,240 Speaker 1: hasn't yet issued a ruling on the government's motion to 256 00:13:57,320 --> 00:14:00,520 Speaker 1: dismiss the charges against Flynn. Joy to me as former 257 00:14:00,600 --> 00:14:03,840 Speaker 1: federal prosecutor Robert Mints, a partner with Carter in English, 258 00:14:04,120 --> 00:14:07,240 Speaker 1: so B what was the main issue the judges were considering. 259 00:14:07,760 --> 00:14:10,440 Speaker 1: The central issue that was before the DC Court of 260 00:14:10,480 --> 00:14:14,680 Speaker 1: Appeals was the question of whether the trial judge, Judge 261 00:14:14,720 --> 00:14:19,240 Speaker 1: Sullivan was required to dismiss the case against Michael Flynn 262 00:14:19,280 --> 00:14:22,600 Speaker 1: upon the government's motion, or whether the trial judge had 263 00:14:22,640 --> 00:14:26,000 Speaker 1: the authority to hold a hearing to look behind the 264 00:14:26,120 --> 00:14:30,920 Speaker 1: motives behind the government's motion. Flynn's lawyers filed what's called 265 00:14:30,920 --> 00:14:33,960 Speaker 1: a rhythm and damis, which was an attempt to circumvent 266 00:14:34,240 --> 00:14:37,760 Speaker 1: the trial judges authority and go directly to the Court 267 00:14:37,760 --> 00:14:40,880 Speaker 1: of Appeals to order him to dismiss the case immediately. 268 00:14:41,120 --> 00:14:45,320 Speaker 1: How are the questions? Did the questions indicate anything? From 269 00:14:45,440 --> 00:14:50,600 Speaker 1: the Appeals Court judges? All three Appeals Court judges appeared 270 00:14:50,600 --> 00:14:54,440 Speaker 1: to be in savor of allowing Judge Sullivan to proceed 271 00:14:54,480 --> 00:14:57,920 Speaker 1: with the hearing, but this is purely a procedural issue 272 00:14:57,920 --> 00:15:01,040 Speaker 1: at this point. They're not ruling on the of whether 273 00:15:01,120 --> 00:15:04,080 Speaker 1: or not the judge could deny the government's motion to 274 00:15:04,160 --> 00:15:07,240 Speaker 1: dismiss the case. And what they also left unanswered, And 275 00:15:07,480 --> 00:15:10,120 Speaker 1: what is perhaps the most interesting question in this whole 276 00:15:10,160 --> 00:15:14,200 Speaker 1: process is if this hearing goes forward, if the judge 277 00:15:14,280 --> 00:15:19,120 Speaker 1: denies the motion filed by Judge Flynn's lawyers and by 278 00:15:19,120 --> 00:15:22,680 Speaker 1: the government and allows Judge Sullivan to proceed with his hearing, 279 00:15:22,960 --> 00:15:25,760 Speaker 1: the question is what is the scope of that review. 280 00:15:26,240 --> 00:15:29,560 Speaker 1: Does Judge Sullivan have the authority to inquire if the 281 00:15:29,600 --> 00:15:32,880 Speaker 1: government has political motives in seeking the dismissal of the 282 00:15:32,920 --> 00:15:37,280 Speaker 1: case against Judge Flynn. Suppose the government does have political motives, 283 00:15:37,320 --> 00:15:41,040 Speaker 1: the Justice Department has political motivations behind some of its 284 00:15:41,040 --> 00:15:44,720 Speaker 1: prosecutions and some of its decisions not to prosecute. Well, 285 00:15:44,720 --> 00:15:46,920 Speaker 1: that's a great question, and it really goes to the 286 00:15:46,960 --> 00:15:49,720 Speaker 1: heart of this dispute, which is that this is such 287 00:15:49,760 --> 00:15:55,360 Speaker 1: an extraordinarily unusual situation in a highly politically charged case. 288 00:15:55,800 --> 00:15:57,640 Speaker 1: This is a case where you have to when having 289 00:15:57,680 --> 00:16:00,920 Speaker 1: pled guilty twice to lying to the FBI about his 290 00:16:01,000 --> 00:16:06,120 Speaker 1: conversations in six with the Russian ambassador before the Attorney 291 00:16:06,120 --> 00:16:08,560 Speaker 1: General William Barr has decided last month to try to 292 00:16:08,640 --> 00:16:12,560 Speaker 1: drop the case. It's an unusual circumstance because the rule 293 00:16:12,960 --> 00:16:16,520 Speaker 1: for dismissal of the case specifically says that the government 294 00:16:16,560 --> 00:16:19,760 Speaker 1: may move to dismiss the case upon leave of court, 295 00:16:19,840 --> 00:16:23,880 Speaker 1: and that suggests that the judge has some ability to 296 00:16:24,080 --> 00:16:27,840 Speaker 1: look at the decision behind the dismissal and make some 297 00:16:27,960 --> 00:16:29,960 Speaker 1: sort of inquiry. And that's what the Court of Appeals 298 00:16:30,000 --> 00:16:33,240 Speaker 1: lacked onto here. That the District Court is not simply 299 00:16:33,520 --> 00:16:37,640 Speaker 1: a rubber stamp. But what exactly are the parameters behind 300 00:16:37,760 --> 00:16:40,440 Speaker 1: which and the rules that the judge at the trial 301 00:16:40,520 --> 00:16:42,760 Speaker 1: level can look at at how much he can get 302 00:16:42,800 --> 00:16:45,920 Speaker 1: into the motivations. That is the part that is unanswered, 303 00:16:45,920 --> 00:16:49,160 Speaker 1: and there's really very little or non existent case law 304 00:16:49,200 --> 00:16:52,760 Speaker 1: on that question. As you mentioned, it seems as if 305 00:16:53,000 --> 00:16:56,960 Speaker 1: they're going to allow Judge Sullivan to proceed, so then 306 00:16:57,200 --> 00:17:01,320 Speaker 1: why even have this hearing? Rid of mandamus is extraordinary, 307 00:17:01,360 --> 00:17:04,320 Speaker 1: so they could have just said, no, we're not going 308 00:17:04,359 --> 00:17:06,679 Speaker 1: to hear this at this time. Why hold a hearing? 309 00:17:06,720 --> 00:17:10,640 Speaker 1: Even the rit of man damis is an extraordinary sort 310 00:17:10,640 --> 00:17:13,160 Speaker 1: of relief, and it requires that there be some kind 311 00:17:13,160 --> 00:17:16,200 Speaker 1: of specific harm that's made out by the party seeking 312 00:17:16,240 --> 00:17:19,760 Speaker 1: that release. In this case, the government argued that the 313 00:17:19,880 --> 00:17:23,440 Speaker 1: harm was that if the hearing proceeds, it will allow 314 00:17:23,960 --> 00:17:27,960 Speaker 1: the trial judge to get into the motives behind the 315 00:17:28,000 --> 00:17:32,520 Speaker 1: decision to dismiss this case, and the Deputy Solicitor General 316 00:17:32,680 --> 00:17:35,880 Speaker 1: argued that that would be harmful to the Department of Justice, 317 00:17:36,320 --> 00:17:40,920 Speaker 1: particularly in this very politicized environment in which these allegations 318 00:17:40,960 --> 00:17:43,879 Speaker 1: were made. That, however, was not enough to sway the 319 00:17:43,880 --> 00:17:47,399 Speaker 1: Court of Appeals. They said that it is premature, or 320 00:17:47,440 --> 00:17:50,919 Speaker 1: they certainly suggested it was premature for the dismissal, and 321 00:17:50,920 --> 00:17:53,639 Speaker 1: they certainly pointed out to the government that if Judge 322 00:17:53,640 --> 00:17:57,080 Speaker 1: Sullivan were to decide against dismissing the case, that they 323 00:17:57,080 --> 00:17:59,159 Speaker 1: could be right back before the Court of Appeals on 324 00:17:59,320 --> 00:18:01,480 Speaker 1: the merits of this issue. So I think the Court 325 00:18:01,480 --> 00:18:03,919 Speaker 1: of Appeals really looked at this as a procedural issue 326 00:18:04,200 --> 00:18:07,080 Speaker 1: and simply said that the Government had not made out 327 00:18:07,280 --> 00:18:10,640 Speaker 1: the type of irreparable harm that was needed in order 328 00:18:10,640 --> 00:18:13,520 Speaker 1: to grant this motion for Matt damis is that in 329 00:18:13,600 --> 00:18:17,080 Speaker 1: their favor to talk about the politicized environment, just what 330 00:18:17,440 --> 00:18:21,359 Speaker 1: Judge Sullivan is concerned about. Well, I think what the 331 00:18:21,400 --> 00:18:24,040 Speaker 1: Department was arguing is that it was going to ultimately 332 00:18:24,080 --> 00:18:27,960 Speaker 1: be damaging to the perception of the Department of Justice 333 00:18:28,040 --> 00:18:30,040 Speaker 1: if assuring were to go forward, and it would be 334 00:18:30,080 --> 00:18:33,320 Speaker 1: an then very unusual hearing where the Department would have 335 00:18:33,400 --> 00:18:38,320 Speaker 1: to provide information about its internal deliberations, including why no 336 00:18:38,480 --> 00:18:41,639 Speaker 1: career prosecutors signed the motion to dismiss the charge against 337 00:18:41,800 --> 00:18:45,640 Speaker 1: Mr Flynn. And really the government acknowledged that this would 338 00:18:45,640 --> 00:18:49,240 Speaker 1: be a spectacle in a politicized atmosphere, something that they 339 00:18:49,359 --> 00:18:52,399 Speaker 1: argued was going to be damaging to the government. And also, 340 00:18:52,440 --> 00:18:55,280 Speaker 1: I think implicit in that argument is that this dismissal 341 00:18:55,400 --> 00:18:59,960 Speaker 1: was inevitable anyway, that it was unlikely regardless of how 342 00:19:00,119 --> 00:19:03,320 Speaker 1: Judge Sullivan rules, that's Court of Appeals was going to 343 00:19:03,520 --> 00:19:07,080 Speaker 1: force this case to go forward when both Flynn's lawyer 344 00:19:07,240 --> 00:19:09,879 Speaker 1: and the government were both on the same side arguing 345 00:19:09,880 --> 00:19:13,000 Speaker 1: that the case should be dismissed. Coming up next, will 346 00:19:13,040 --> 00:19:15,640 Speaker 1: this be a round trip back to the appellate court. 347 00:19:16,080 --> 00:19:18,560 Speaker 1: I've been talking to Robert Mints of McCarter and English 348 00:19:18,760 --> 00:19:21,840 Speaker 1: about a Federal Appeals Court hearing in d C on 349 00:19:21,880 --> 00:19:25,600 Speaker 1: the Justice Department's motion to dismiss all the charges against 350 00:19:25,640 --> 00:19:29,480 Speaker 1: Michael Flynn despite the fact that he's pleaded guilty. So 351 00:19:29,760 --> 00:19:34,199 Speaker 1: the Justice Department was arguing that Judge Sullivan can't demand 352 00:19:34,240 --> 00:19:38,480 Speaker 1: testimony on evidence from the government about why it decided 353 00:19:38,560 --> 00:19:42,840 Speaker 1: to do this about face, But if a hearing goes forward, 354 00:19:43,000 --> 00:19:45,320 Speaker 1: if this court allows a hearing to go forward, isn't 355 00:19:45,320 --> 00:19:49,320 Speaker 1: that exactly what he's going to be asking for. Well, 356 00:19:49,320 --> 00:19:52,520 Speaker 1: that's another interesting issue here, which is while the Court 357 00:19:52,520 --> 00:19:55,240 Speaker 1: of Appeals had suggested that the hearing should be able 358 00:19:55,240 --> 00:19:57,600 Speaker 1: to go forward, they really didn't get into the details 359 00:19:57,680 --> 00:20:00,400 Speaker 1: of what that hearing would look like, and does put 360 00:20:00,440 --> 00:20:03,480 Speaker 1: the court in an interesting dilemma where the court cannot 361 00:20:03,520 --> 00:20:07,440 Speaker 1: act as both the trial court and a prosecutor at 362 00:20:07,440 --> 00:20:10,920 Speaker 1: the same time. So here we haven't unusual circumstance where 363 00:20:10,920 --> 00:20:13,399 Speaker 1: both the government and the defense, which is supposed to 364 00:20:13,440 --> 00:20:16,600 Speaker 1: be adversarial, obviously in this case, they're both on the 365 00:20:16,680 --> 00:20:20,199 Speaker 1: same side. And instead, what Judge Sullivan did was to 366 00:20:20,320 --> 00:20:24,200 Speaker 1: appoint a friend of the Court, retired Judge John Gleeson, 367 00:20:24,560 --> 00:20:27,720 Speaker 1: to prepare a report and essentially argue the other side 368 00:20:27,720 --> 00:20:30,919 Speaker 1: of this case why this case should not be dismissed. 369 00:20:31,160 --> 00:20:35,400 Speaker 1: Judge Gleason did prepare a long report and had actually 370 00:20:35,440 --> 00:20:38,360 Speaker 1: filed it at the very same time that the rid 371 00:20:38,400 --> 00:20:40,840 Speaker 1: of man Damis was sought from the Court of Appeals, 372 00:20:40,880 --> 00:20:43,920 Speaker 1: and his report found that there was a gross abuse 373 00:20:44,000 --> 00:20:47,480 Speaker 1: of prosecutorial power and accused the d o J of 374 00:20:47,520 --> 00:20:51,679 Speaker 1: acting in highly irregular conduct to benefit a political ally 375 00:20:51,800 --> 00:20:54,520 Speaker 1: of the President. So what's happened here is if the 376 00:20:54,560 --> 00:20:57,560 Speaker 1: Court of Appeals does rule as they seemed inclined to 377 00:20:57,640 --> 00:20:59,920 Speaker 1: do to allow this year and to go forward, we're 378 00:21:00,000 --> 00:21:02,879 Speaker 1: are going to see a very highly charged hearing before 379 00:21:03,000 --> 00:21:06,320 Speaker 1: Judge Sullivan. But we'll have to see what Judge Sullivan 380 00:21:06,440 --> 00:21:10,159 Speaker 1: allows in terms of testimony and how he decides to 381 00:21:10,240 --> 00:21:13,120 Speaker 1: hear this case. At this point, he's got this long 382 00:21:13,160 --> 00:21:16,720 Speaker 1: report that's been prepared by retired Judge Gleason. I suspect 383 00:21:16,760 --> 00:21:19,720 Speaker 1: he's going to use that as the argument in favor 384 00:21:20,200 --> 00:21:22,879 Speaker 1: of denying the motion to dismiss, and he's going to 385 00:21:22,960 --> 00:21:26,080 Speaker 1: force the government and Judge Flenn's counsel to respond to 386 00:21:26,119 --> 00:21:31,000 Speaker 1: those specific allegations. So an interesting question from one of 387 00:21:31,040 --> 00:21:34,520 Speaker 1: the Appellate court judges was one of the Justice Department 388 00:21:34,560 --> 00:21:38,040 Speaker 1: would have authority to dismiss a case for racist reasons 389 00:21:38,240 --> 00:21:42,280 Speaker 1: without the judge inquiring what do you make of that question, 390 00:21:42,359 --> 00:21:46,000 Speaker 1: which addresses a lot of the turmoil of the moment. Well, 391 00:21:46,040 --> 00:21:47,959 Speaker 1: I think it hits the nail on the head in 392 00:21:48,160 --> 00:21:51,760 Speaker 1: terms of the Court of Appeals acknowledging that the trial 393 00:21:51,960 --> 00:21:56,239 Speaker 1: judge does have some role in reviewing and approving a 394 00:21:56,320 --> 00:21:59,960 Speaker 1: motion to dismiss a case at this stage of the process. Remember, 395 00:22:00,119 --> 00:22:03,560 Speaker 1: this is after Michael Flynn has already played guilty twice 396 00:22:04,240 --> 00:22:09,160 Speaker 1: to lying to the FBI, and it raises the secondary 397 00:22:09,240 --> 00:22:13,359 Speaker 1: question if he is withdrawing his guilty plea and saying 398 00:22:13,440 --> 00:22:16,560 Speaker 1: that he did not lie to the FBI when he 399 00:22:16,720 --> 00:22:19,359 Speaker 1: talked about his conversation with the Russian ambassador. Does that 400 00:22:19,440 --> 00:22:22,040 Speaker 1: mean he lied to the court when he twice admitish 401 00:22:22,119 --> 00:22:25,840 Speaker 1: his guilt. That's another issue that retired Judge John Gleason 402 00:22:26,200 --> 00:22:28,919 Speaker 1: looked at. So there's a lot of issues here that 403 00:22:28,960 --> 00:22:31,320 Speaker 1: are before the court, and it's gonna be very interesting 404 00:22:31,400 --> 00:22:35,000 Speaker 1: to see how Judge Sullivan deals with this hearing. If 405 00:22:35,000 --> 00:22:38,160 Speaker 1: in fact it goes forward. The Court of Appeals acknowledge 406 00:22:38,200 --> 00:22:41,639 Speaker 1: that it's possible that Judge Sullivan will side with the 407 00:22:41,720 --> 00:22:45,800 Speaker 1: government and with Judge friends lawyers and dismissed the case, 408 00:22:45,800 --> 00:22:47,600 Speaker 1: in which case there would be nothing for the Court 409 00:22:47,600 --> 00:22:50,399 Speaker 1: of Appeals to review. The Court of Appeals here is 410 00:22:50,440 --> 00:22:53,000 Speaker 1: doing what courts of Appeals typically do, which is to 411 00:22:53,000 --> 00:22:55,720 Speaker 1: say that if they don't have to rule on a decision, 412 00:22:55,720 --> 00:22:58,639 Speaker 1: that they would prefer not to. So they're giving Judge 413 00:22:58,680 --> 00:23:02,080 Speaker 1: Sullivan the opportunity to have this hearing. If Judge Sullivan 414 00:23:02,240 --> 00:23:05,639 Speaker 1: decides to deny the government's motion to dismiss this case, 415 00:23:05,840 --> 00:23:08,159 Speaker 1: then we can certainly see this right back before the 416 00:23:08,160 --> 00:23:11,040 Speaker 1: Court of Appeals and That's going to be another interesting argument. 417 00:23:11,320 --> 00:23:14,200 Speaker 1: That was going to be my next question. If Judge 418 00:23:14,200 --> 00:23:18,440 Speaker 1: Sullivan doesn't allow the government to dismiss the case, aren't 419 00:23:18,480 --> 00:23:21,800 Speaker 1: we right back here at the Court of Appeals. If 420 00:23:21,880 --> 00:23:25,800 Speaker 1: Judge Sullivan decides to deny the government's motion to dismiss 421 00:23:25,840 --> 00:23:28,040 Speaker 1: this case, that is going right back to the Court 422 00:23:28,040 --> 00:23:31,960 Speaker 1: of Appeals, and the central issue will be exactly what 423 00:23:32,080 --> 00:23:36,280 Speaker 1: is the extent of Judge Sullivan's authority to review the 424 00:23:36,480 --> 00:23:39,919 Speaker 1: motives behind the government in dismissing a case. One of 425 00:23:39,920 --> 00:23:43,119 Speaker 1: the judges commented at the hearing that it would it 426 00:23:43,160 --> 00:23:45,639 Speaker 1: be permissible for the government to dismiss the case if 427 00:23:45,680 --> 00:23:49,680 Speaker 1: it was on racial motives, and it suggested that there 428 00:23:49,680 --> 00:23:53,880 Speaker 1: are some lines that would be improper, and again underscored 429 00:23:54,119 --> 00:23:57,080 Speaker 1: the fact that the rule does explicitly say that the 430 00:23:57,119 --> 00:23:59,720 Speaker 1: government may move to dismiss the case at this point 431 00:23:59,720 --> 00:24:03,520 Speaker 1: in the process upon leave of court, which means that 432 00:24:03,560 --> 00:24:07,119 Speaker 1: the court plays at least some role in reviewing the 433 00:24:07,200 --> 00:24:11,159 Speaker 1: motives behind the dismissal. Exactly what that role is is 434 00:24:11,160 --> 00:24:13,400 Speaker 1: what's left unanswered and what we're going to find out 435 00:24:13,440 --> 00:24:16,480 Speaker 1: if this hearing goes forward. The separation of power seems 436 00:24:16,520 --> 00:24:19,240 Speaker 1: to be coming up a great deal during the Trump administration, 437 00:24:19,320 --> 00:24:22,760 Speaker 1: even at the Supreme Court, explain that issue in this 438 00:24:22,960 --> 00:24:25,840 Speaker 1: context and the context of this case. In this case, 439 00:24:25,880 --> 00:24:30,080 Speaker 1: the Solicitor General's Office is arguing that the government has 440 00:24:30,119 --> 00:24:33,520 Speaker 1: the sole authority to decide whether the prosecute cases and 441 00:24:33,640 --> 00:24:37,439 Speaker 1: the judiciary does not have any role in deciding to 442 00:24:37,520 --> 00:24:41,840 Speaker 1: review the motives of the government's reason for dismissing the case. 443 00:24:42,119 --> 00:24:46,439 Speaker 1: It really creates an Article three judicial power question and 444 00:24:46,480 --> 00:24:50,520 Speaker 1: whether or not Judge Sullivan has exceeded his Article three powers, 445 00:24:50,720 --> 00:24:54,320 Speaker 1: because it creates a situation in which the government is 446 00:24:54,359 --> 00:24:57,520 Speaker 1: going to argue that when both the government and the 447 00:24:57,560 --> 00:25:01,760 Speaker 1: defendant agree that the case ought to be dismissed, if 448 00:25:01,840 --> 00:25:04,400 Speaker 1: Judge Sullivan, as he did in this case, appointed an 449 00:25:04,400 --> 00:25:07,520 Speaker 1: advocate to argue the other side, it is the court 450 00:25:07,720 --> 00:25:11,520 Speaker 1: rather than the parties that is creating an Article three 451 00:25:11,560 --> 00:25:14,640 Speaker 1: case or controversy. That's one of the issues that will 452 00:25:14,720 --> 00:25:17,640 Speaker 1: certainly be before the Court of Appeals should this case 453 00:25:17,680 --> 00:25:20,080 Speaker 1: go back for a hearing before Judge Sullivan, and should 454 00:25:20,160 --> 00:25:23,680 Speaker 1: Judge Sullivan decide to deny the government's motion to dismiss 455 00:25:23,720 --> 00:25:27,760 Speaker 1: the case. So let's backtrack a little bit and explain 456 00:25:28,240 --> 00:25:33,360 Speaker 1: why the Justice Department, and specifically Attorney General William Barr, 457 00:25:33,920 --> 00:25:37,720 Speaker 1: says that this case should be dismissed against Flynn. What 458 00:25:37,800 --> 00:25:43,040 Speaker 1: what their underlying contention is about the FBI investigation. Sure, 459 00:25:43,560 --> 00:25:46,680 Speaker 1: the Department of Justice argued that the case ought to 460 00:25:46,760 --> 00:25:52,199 Speaker 1: be dismissed based on Flynn's admitted lies about his discussions 461 00:25:52,200 --> 00:25:55,399 Speaker 1: with the Russian ambassador regarding sanctions imposed on Russia by 462 00:25:55,400 --> 00:26:00,359 Speaker 1: the administration. We're not material to any viable investing gation, 463 00:26:00,640 --> 00:26:04,320 Speaker 1: and that the FBI unfairly targeted him. The Department Justice 464 00:26:04,359 --> 00:26:07,920 Speaker 1: also argued that in reviewing Flynn's case this was something 465 00:26:07,960 --> 00:26:11,080 Speaker 1: that was ordered by Attorney General Bar they found reason 466 00:26:11,160 --> 00:26:14,320 Speaker 1: to doubt the investigator's motives. There were some notes by 467 00:26:14,359 --> 00:26:16,960 Speaker 1: one of the FBI agents that said something about trying 468 00:26:17,000 --> 00:26:19,880 Speaker 1: to get Flynn to lie during the interview. So those 469 00:26:19,920 --> 00:26:22,440 Speaker 1: are the reasons the Department of Justice are giving as 470 00:26:22,440 --> 00:26:26,080 Speaker 1: to why this case ought to be dismissed. How unusual 471 00:26:26,280 --> 00:26:30,520 Speaker 1: is it for the Justice Department after they get too 472 00:26:30,560 --> 00:26:34,480 Speaker 1: pleas of guilty to start opening up the case again 473 00:26:34,880 --> 00:26:39,320 Speaker 1: and reinvestigating it. Well, that's what's unusual about this case. 474 00:26:39,359 --> 00:26:44,399 Speaker 1: I mean, it's virtually unprecedented for the government to dismiss 475 00:26:44,440 --> 00:26:48,200 Speaker 1: the case after a defendant has pleaded guilty absent some 476 00:26:48,640 --> 00:26:51,480 Speaker 1: change in circumstance. And by that I mean it is 477 00:26:51,600 --> 00:26:56,399 Speaker 1: usually that facts come out that may exonerate the individual 478 00:26:56,480 --> 00:27:00,639 Speaker 1: who pleaded guilty. It's highly unusual. Here. We don't have 479 00:27:00,880 --> 00:27:05,159 Speaker 1: that situation. We have an investigation that showed, according to 480 00:27:05,200 --> 00:27:09,800 Speaker 1: the government, that the lies were made. So they acknowledge 481 00:27:09,880 --> 00:27:13,080 Speaker 1: that General Flynn had lied. That's the heart of the case. 482 00:27:13,440 --> 00:27:15,800 Speaker 1: But they're saying they should be dismissing nonetheless because they 483 00:27:15,800 --> 00:27:20,280 Speaker 1: were not material to any viable investigation, and they're essentially 484 00:27:20,359 --> 00:27:24,840 Speaker 1: arguing that there was some misconduct by the FBI here 485 00:27:25,160 --> 00:27:28,000 Speaker 1: in targeting him for this investigation to begin with. The 486 00:27:28,240 --> 00:27:31,280 Speaker 1: the Justice Department also relied on some notes that were 487 00:27:31,359 --> 00:27:36,639 Speaker 1: unearthed recently during this investigation into the Flynn investigation that 488 00:27:36,760 --> 00:27:39,520 Speaker 1: was ordered by Attorney General bar in which an FBI 489 00:27:39,640 --> 00:27:43,320 Speaker 1: agente had included his notes questions about whether or not 490 00:27:43,359 --> 00:27:46,080 Speaker 1: they should try to get Flint to lie during the interview. 491 00:27:46,160 --> 00:27:50,320 Speaker 1: So they are attacking the motives of the FBI's investigation. 492 00:27:50,600 --> 00:27:53,240 Speaker 1: But the heart of it is really not denying that 493 00:27:53,440 --> 00:27:57,520 Speaker 1: Flynn live. They're what they're denying, is that there was 494 00:27:57,560 --> 00:28:01,280 Speaker 1: a proper investigation to begin with. It really goes to 495 00:28:01,359 --> 00:28:04,960 Speaker 1: the bigger question that the Trump administration has been challenging here, 496 00:28:05,000 --> 00:28:08,760 Speaker 1: which is the entire Russian investigation. And since Flynn pled 497 00:28:08,760 --> 00:28:12,040 Speaker 1: guilty in connection with the Russian investigation and was initially 498 00:28:12,480 --> 00:28:15,320 Speaker 1: supposed to cooperate with Protect Tutors and with the Mueller 499 00:28:15,400 --> 00:28:20,639 Speaker 1: team during that investigation, undermining this guilty plea really is 500 00:28:20,680 --> 00:28:23,679 Speaker 1: another step on the part of the Trump administration to 501 00:28:23,720 --> 00:28:27,000 Speaker 1: try to unwind the damage that they believe was done 502 00:28:27,080 --> 00:28:31,520 Speaker 1: by this unwarranted investigation into the connections between the Trump 503 00:28:31,560 --> 00:28:39,920 Speaker 1: administration and Russian government during the election of Finally, Judge 504 00:28:39,920 --> 00:28:44,640 Speaker 1: Gleason's brief, which many people have used the term blistering for, 505 00:28:45,200 --> 00:28:49,240 Speaker 1: he says in the brief that Michael Flynn committed perjury, 506 00:28:49,720 --> 00:28:53,800 Speaker 1: yet he advises Judge Sullivan not to have a hearing 507 00:28:53,840 --> 00:28:57,280 Speaker 1: on that, but just to use it when he sentences 508 00:28:57,360 --> 00:29:02,480 Speaker 1: him to enhance his sentence. Is that odd to do that? Well, 509 00:29:02,480 --> 00:29:06,360 Speaker 1: we have a situation in which Michael Flynn has not 510 00:29:06,520 --> 00:29:09,880 Speaker 1: denied that he lied. That's not the heart of this case. 511 00:29:09,920 --> 00:29:14,120 Speaker 1: And so when retired Judge Gleeson did his investigation, which 512 00:29:14,120 --> 00:29:15,920 Speaker 1: he then filed with the court and which will be 513 00:29:15,920 --> 00:29:18,680 Speaker 1: considered at the hearing of hearing goes forward. He took 514 00:29:18,720 --> 00:29:22,640 Speaker 1: into account the possibility that Michael Flynn could also be 515 00:29:22,800 --> 00:29:28,240 Speaker 1: charged with perjury because he is now retracting his guilty place. 516 00:29:28,320 --> 00:29:31,600 Speaker 1: So he either told the truth when he pleads guilty, 517 00:29:32,000 --> 00:29:34,880 Speaker 1: or he's telling the truth now by saying that he 518 00:29:35,040 --> 00:29:37,720 Speaker 1: never did lie, in which case he lied before the 519 00:29:37,720 --> 00:29:40,600 Speaker 1: court when he entered his guilty plea twice. So Judge 520 00:29:40,600 --> 00:29:42,959 Speaker 1: Gleason is saying that that could be an independent charge 521 00:29:43,160 --> 00:29:47,280 Speaker 1: for perjury, but instead he's recommending that Judge Sullivan simply 522 00:29:47,680 --> 00:29:51,640 Speaker 1: consider that issue in connection with the sentencing to to 523 00:29:51,720 --> 00:29:54,520 Speaker 1: the offense that he's already admitted guilt. Judge Gleason said 524 00:29:54,520 --> 00:29:57,760 Speaker 1: that that was more consistent with the intent to treat 525 00:29:57,800 --> 00:29:59,720 Speaker 1: this defendant in the same way that it would treat 526 00:29:59,760 --> 00:30:02,680 Speaker 1: any other independent Thanks for being on Bloomberg Law, Bob. 527 00:30:02,920 --> 00:30:05,760 Speaker 1: That's Robert Mints of McCarter and English, and that's it 528 00:30:05,840 --> 00:30:09,000 Speaker 1: for the edition of Bloomberg Law. I'm June Grass. Thanks 529 00:30:09,000 --> 00:30:11,080 Speaker 1: so much for listening, and remember to tune to The 530 00:30:11,080 --> 00:30:14,000 Speaker 1: Bloomberg Law Show weeknights at Tanti and Eastern right here 531 00:30:14,000 --> 00:30:14,920 Speaker 1: on Bloomberg Radio,