Speaker 1: I'm still waiting for some sort of logical explanation for
Speaker 1: the number of sort of fake or spam accounts on Twitter.
Speaker 1: Elon Musk has to wait no longer he can find
Speaker 1: the answers in the lawsuit Twitter has filed against him
Speaker 1: after Musk walked away from his forty four billion dollar
Speaker 1: deal to buy the company. Joining me is Eric Talley,
Speaker 1: a professor at Columbia Law School. Eric, give us your
Speaker 1: take on Twitter's complaint here. The lawsuits not terribly surprising.
Speaker 1: The lawyers for Twitter have come out of the box hot,
Speaker 1: and I think everyone expected them to. The relief that
Speaker 1: they're seeking, which is also not surprising, is a specific
Speaker 1: performance order essentially compelling Musk to go through with the deal.
Speaker 1: And they would have asked for that regardless of whether
Speaker 1: it makes sense for Musk to end up owning Twitter
Speaker 1: or not, because that gives them the maximal bargaining leverage.
Speaker 1: If they were to get that order, and he really
Speaker 1: doesn't want to own Twitter, he can, you know, try
Speaker 1: to bargain his way out of it in exchange for
Speaker 1: a significant settlement payment. So the relief that they've thought
Speaker 1: is exactly what everyone predicted they would seek. What they
Speaker 1: have attended to doing in the complaint quite effectively, is
Speaker 1: to make sure that they are beginning to state their
Speaker 1: case about how Twitter has all along been duly compliant
Speaker 1: with its obligations under the merger agreement, in contrast to
Speaker 1: Mr Musk's contention that they have not been forthcoming in
Speaker 1: delivering of data. I think a lot of people doubted
Speaker 1: Musk's assertions on this, and the complaint sort of lays
Speaker 1: out a little bit more that many of Musk's demands
Speaker 1: for data were actually met by Twitter, and he essentially
Speaker 1: kept escalating them and making them more frequent, not even
Speaker 1: really reviewing what they had already given him, until the
Speaker 1: point where that basically said, now we're not going to
Speaker 1: give you any more. We've got to protect information of
Speaker 1: our clients and customers and so forth. So I think
Speaker 1: that that was important because it was going to be
Speaker 1: important for Twitter, even though they're the plaintiff in this lawsuit,
Speaker 1: to be able to fend off arguments from Mr Musk
Speaker 1: that Twitter was in breach first. I don't view the
Speaker 1: complaint as being withering or sarcastic, but it did go
Speaker 1: out of its way to place excerpts of various tweets
Speaker 1: and responses, including poop emojis. In the complaint itself, largely,
Speaker 1: I think, just to signal how exasperating it has been
Speaker 1: to deal with the Musk team on this, particularly as
Speaker 1: it became more and more apparent that Mr Musk was
Speaker 1: really just looking for an escape hatch to try to
Speaker 1: dive out of and try to find some pretextual reason
Speaker 1: not to go forward with the transaction. It says Musk
Speaker 1: apparently believes that he, unlike every other party subject to
Speaker 1: Delaware contract law, is free to change his mind, trash
Speaker 1: the company, disrupt its operations, destroy shareholder value, and walk away. Yes,
Speaker 1: so that is a fairly strong statement in the complaint.
Speaker 1: And and then it's followed up very close to the
Speaker 1: end of complaint with a one sentence paragraph that that
Speaker 1: says something to the effect that, you know, Mr Musk
Speaker 1: must believe that his entire process with Twitter must be
Speaker 1: just some elaborate joke. And I think that that is
Speaker 1: an important set of inclusions into this complaint because when
Speaker 1: it comes right down to it, you know, the Delaware
Speaker 1: courts or the top business court in the country, and
Speaker 1: for good reason, they have a reputational stake in saying, look,
Speaker 1: we take contracts and contractual obligations seriously, and if your
Speaker 1: cavalier or un serious about getting into a significant deal
Speaker 1: and then expect to essentially waltz away into the sunset
Speaker 1: with no repercussions, you're in for a fairly unpleasant surprise.
Speaker 1: That Delaware at least would like to think of itself
Speaker 1: as the century that allows people to enter into contracts
Speaker 1: and feel comfortable that the other side is going to
Speaker 1: live up to their obligations because a Delaware court is
Speaker 1: standing there ready to enforce them. And so I think
Speaker 1: that some of the more animated parts of this complaint
Speaker 1: really are designed to tap into what everyone sort of
Speaker 1: believes that Delaware prides itself is being the business law
Speaker 1: court that you can rely on that is going to
Speaker 1: be willing to, you know, make those difficult decisions to say, yeah,
Speaker 1: we're going to either force someone to go through with
Speaker 1: this contract or have them see significant repercussions if they don't.
Speaker 1: Specific performance is a big ask to Delaware courts often,
Speaker 1: you know, order specific performance of a contract like this. Yeah.
Speaker 1: As a general matter, in contract law, the usual rule
Speaker 1: in the United States is money damages for breaching a
Speaker 1: contract but in situations where it's very, very difficult to
Speaker 1: come up with those dollar values on how you would
Speaker 1: even compensate someone, then courts have always reserved their so
Speaker 1: called equitable discretion to say, Okay, we're just going to
Speaker 1: actually issue a court order forcing you to make good
Speaker 1: on your promise. Now, a lot of contracting parties, and
Speaker 1: this is true of the Twitter Musk deal as well,
Speaker 1: put in a paragraph that says, by the way, both
Speaker 1: parties hereby acknowledge that it would be really hard to
Speaker 1: come up with money damages, and therefore, if there's a
Speaker 1: breach by either side, the other side will be entitled
Speaker 1: to seek specific performance if they want it. Now, there's
Speaker 1: kind of an interesting question about whether that kind of
Speaker 1: provision has an effect on when and other under what
Speaker 1: circumstances a court will say, Okay, we're going to take
Speaker 1: their invitation to do it. Some courts just say no,
Speaker 1: that this is up to me whether to do this
Speaker 1: as a judge. But the Delaware courts have definitely been
Speaker 1: willing to look at a contract, take those representations that
Speaker 1: are in the contract, and say okay, yeah, we are
Speaker 1: now more willing to enforce this contract with an injunction
Speaker 1: as opposed to money damages. Now the Chancellor who is
Speaker 1: getting this case. Chancellor McCormick, very good judge, incredibly smart,
Speaker 1: hard working, sharp judge. Hasn't been on the court for
Speaker 1: a long time, but she's been on long enough to
Speaker 1: issue some pretty good opinions and people have a high
Speaker 1: regard for her. One of her opinions that she issued
Speaker 1: did exactly what Twitter is hoping that she'll do this time.
Speaker 1: A buyer god weak need about a deal that they
Speaker 1: had entered into it was a much smaller deal, and
Speaker 1: tried to back out of the deal, similarly to Mosque,
Speaker 1: citing various types of pretextual reasons why you know things
Speaker 1: were going to fail, the financing was going to fail,
Speaker 1: And Chancellor McCormick was just unsympathetic to those claims and
Speaker 1: basically said, look, you brought that upon your solve. You're
Speaker 1: the one that breathed life into your current failing of
Speaker 1: financing because you didn't want to go through on the deal.
Speaker 1: So you sabotage your own deal. Well, guess what, I'm
Speaker 1: going to issue an injunction that forces you to go
Speaker 1: through with it anyway. So I think that the draw
Speaker 1: of Chancellor McCormick. Hearing this case, that was probably welcome
Speaker 1: news to Twitter, probably another source of a concern and
Speaker 1: a headache to Mr Musk's attorneys. Matthew Shettenham, a litigation
Speaker 1: analyst for Bloomberg Intelligence, gives Twitter a six chance to
Speaker 1: win specific performance. What do you think the chances are.
Speaker 1: I think the chances are at least that And I
Speaker 1: would say that the types of situations that could derail
Speaker 1: specific performance, I think are fairly remote here. The one
Speaker 1: issue that could cloud things up a little bit is
Speaker 1: how does that injunction get administered? Even when a court
Speaker 1: is inclined to issue a specific performance decree, it doesn't
Speaker 1: necessary only want to sign itself up for a year's
Speaker 1: long babysitting service of the parties themselves to try to
Speaker 1: superintend and oversee the process of closing the deal. And
Speaker 1: so that can sometimes be a reason not to grant
Speaker 1: specific performance. And you know, in this instance, it's conceivable
Speaker 1: that a judge might say, well, you know, boy, if
Speaker 1: I compel performance, do I then have to be the
Speaker 1: person who then wrangles all the banks into court and
Speaker 1: tells them that they have to lend on this deal.
Speaker 1: Maybe maybe not. Chentleen mccorma didn't even bother doing that.
Speaker 1: In the other case, you just said you gotta go
Speaker 1: out and get your financing. So that's one potential obstacle.
Speaker 1: There's been some speculation that Musk might just ignore in
Speaker 1: order for specific performance. I doubt that that is going
Speaker 1: to happen. It would be absolutely unaffront to this reputational
Speaker 1: stake that the Delaware Cords have in being serious of
Speaker 1: about enforcing contracts. And because Musk owns so many assets
Speaker 1: that are within the jurisdiction of Delaware, largely in the
Speaker 1: form of stock of other companies that he owns that
Speaker 1: are Delaware companies, it would be not terribly hard for
Speaker 1: Chancellor McCormick to say, Okay, look, if you don't want
Speaker 1: to comply with that, then we will start a civil
Speaker 1: contempt proceeding and I can fashion any remedy I want,
Speaker 1: including the seizure of your stock of other companies that
Speaker 1: you might own. Now, that is definitely the nuclear option,
Speaker 1: but I think most people understand that nuclear option is there,
Speaker 1: hardly ever gets used because most people basically believe the
Speaker 1: Delaware Chancery Corps. So, you know, I think that there
Speaker 1: are some folks who are kind of discounting the likelihood
Speaker 1: of specific performance because they just think Musk is gonna
Speaker 1: ignore a specific performance decree. I don't really share that concerns.
Speaker 1: I think that if the decree comes forward, he's going
Speaker 1: to comply with it, and it'll be pretty clear that
Speaker 1: it's going to be in his best interest to comply
Speaker 1: with it. But does Twitter really want Musk to take
Speaker 1: over the company or at that point would they come
Speaker 1: to some kind of agreement, some monetary agreement that I
Speaker 1: think is exactly the end game here. It Maybe we
Speaker 1: don't know for sure. It may be that the vanity
Speaker 1: purchase that Elon Musk was interested in in April is
Speaker 1: still a vanity purchase that he's interested in, and he's
Speaker 1: just trying to get a better price. And if that's
Speaker 1: the case, then the settlement will take the form of
Speaker 1: a recut deal. One of the things that is starting
Speaker 1: to push kind of in opposition to that possibility is
Speaker 1: the fact that the relations between pretty much everyone at
Speaker 1: Twitter and Mr Musk have so soured that it's unclear whether,
Speaker 1: you know, if you were to take hold of Twitter
Speaker 1: and go into corporate headquarters one day, there'd be anyone
Speaker 1: left to work with him, So so it may well
Speaker 1: be the case that he doesn't really want to own it.
Speaker 1: If he did, it would be in an even worse
Speaker 1: shape because everyone will be bailing and jumping ship, and
Speaker 1: it may just be better to keep it in the
Speaker 1: hands of the distributed public investors at this point. And
Speaker 1: if that's the case, then Twitter will be armed with
Speaker 1: a specific performance decree, but they will sit down and
Speaker 1: bargain with him and say, okay, now that you know
Speaker 1: what the disagreement point is here, right that if you
Speaker 1: don't agree to a hefty settlement with us, we're basically
Speaker 1: going to enforce this against you. Uh. That is essentially
Speaker 1: going to loosen up the purse string of a settlement
Speaker 1: payment that Elon must would be then willing to pay
Speaker 1: to just walk away and wash his hands entirely of
Speaker 1: this unpleasant episode. Finally, Twitter says that it can do
Speaker 1: this trial in four days. Is that possible? Likely? It
Speaker 1: is not only possible, um, but this happens routinely in
Speaker 1: these expedited proceedings in Delaware court, and so one of
Speaker 1: the um one of the reasons that Delaware is so
Speaker 1: favored as a business litigation and venue is not just
Speaker 1: because of the quality and the predictability of the judges,
Speaker 1: but also because they basically make themselves available in cases
Speaker 1: that are UM, you know, critical time critical to adjudicate
Speaker 1: these cases quickly to essentially render an outcome. And I
Speaker 1: think for Twitter, which at this stage is now sort
Speaker 1: of in this UM incredibly unpleasant state of limbo in
Speaker 1: which you know, people are quitting, there's uncertainty about what's
Speaker 1: going to happen, it's pretty clear that they want to
Speaker 1: move forward, and the four day trial for most of
Speaker 1: the facts that are associated with this case, you know,
Speaker 1: probably is not unrealistic UM in any regard because quite frankly,
Speaker 1: many of the back and forth UM interactions in this
Speaker 1: case have ironically enough occurred over Twitter, so they're out there,
Speaker 1: they're publicly known. The one possible exception to this that
Speaker 1: Must you know, alluded to obviously in a in a
Speaker 1: cryptic tweet himself, was you know, whether that's going to
Speaker 1: open the Pandora's box of all the data feed UM
Speaker 1: inputs that Twitter has in order to determine what the
Speaker 1: nature of the alleged bot account problem is inside Twitter.
Speaker 1: I doubt it will get that far. I suspect that
Speaker 1: the way that the whole you know, spam account and
Speaker 1: body account thing has has evolved, and this is in
Speaker 1: the in the complaint as well, is that you know,
Speaker 1: Twitter had a lot of discretion on on how to
Speaker 1: deal with that data um provision process. They were given
Speaker 1: that discretion in the contract, and and the judge is
Speaker 1: likely just going to limit her attention to whether they
Speaker 1: abuse their own discretion, and that's not going to require
Speaker 1: a deep dive into what was it gigabytes petty bytes
Speaker 1: of data that are cited in the complaint. So yeah,
Speaker 1: I think they're going to be able to do this
Speaker 1: in four days. But make no mistake, there are countless
Speaker 1: attorneys on both sides that are now gearing up for
Speaker 1: trial because who canna happen quickly? They've got about six
Speaker 1: weeks before, you know, things are going to get real
Speaker 1: in Delaware. Thanks Eric. That's professor Eric Talley of Columbia
Speaker 1: Law School coming up next. What has the January six
Speaker 1: Committee proven so far? This is Bloomberg. The House committee
Speaker 1: investigating the capital attack on January six is holding its
Speaker 1: eighth public session next week. That was expected to be
Speaker 1: the finale, but now the committee is mapping out steps
Speaker 1: beyond next week's session for continuing its investigation, including possibly
Speaker 1: holding more hearings. What kind of a case has the
Speaker 1: committee presented against former President Donald Trump so far? Joining
Speaker 1: me as former federal prosecutor Kevin O'Brien, a partner at
Speaker 1: Ford O'Brien Landy, what is your take on what the
Speaker 1: committee has proven so far as far as former President
Speaker 1: Trump's involvement. In January six, the hearing was truly impressive,
Speaker 1: the way they weaved all these strands together, and they
Speaker 1: clearly have a theory, which is the Trump is responsible
Speaker 1: for everything. I think Liz Cheney has that wonderful line
Speaker 1: that she repeats, but he knew the mob was angry,
Speaker 1: he knew they were armed and dangerous. Uh, and he
Speaker 1: sent them to the capital anyway, which pretty much I
Speaker 1: think encapsulates the theory. I think from the standpoint of
Speaker 1: a criminal prosecution, though there's still a number of problems.
Speaker 1: You know as someone who's tried criminal cases, that the
Speaker 1: reality is much different at a trial. Fewer things are admissible,
Speaker 1: harder evidence is required, and there are certain legal requirements
Speaker 1: you need to satisfy before you can even get the
Speaker 1: case to trial. I'm concerned that and I think most
Speaker 1: people would actually admit this if you ask them, knowledgeable people,
Speaker 1: even that they haven't made out a case that there
Speaker 1: was a conspiracy between Trump and the mob on January six.
Speaker 1: No one suggested yet that he directly or indirectly reached
Speaker 1: any agreement when any of the leaders, any of the
Speaker 1: Proud Boys or oath keepers, for example, to storm the
Speaker 1: Capitol or wreak violence on the Capitol, or do anything,
Speaker 1: for example, to compel My Pence to undo the electors
Speaker 1: and put in a Trump approved slate of electors that
Speaker 1: would make him the president. There's been no proof of that. Now,
Speaker 1: you don't need that in a criminal case. You don't
Speaker 1: need a conspiracy, but you do have to have some
Speaker 1: link to the violence on that day. Otherwise you're it's like,
Speaker 1: you know, Hamlet playing Hamlet without the ghost. You're talking
Speaker 1: about a bunch of treason as clerks like John Eastman
Speaker 1: and people in the White House coming up with these
Speaker 1: theories that were wrong and get legal. But if that's
Speaker 1: all there is, and those all fell flat, by the way,
Speaker 1: because cooler heads prevailed even within Trump's immediate orbit, if
Speaker 1: that's all you have, then you have a violation of
Speaker 1: law that is somewhat technical, and I think it's unlikely
Speaker 1: or at least there's some significant doubt whether a case
Speaker 1: like that would really appeal to a criminal jury. And
Speaker 1: keep in mind you're talking about an indictment of the
Speaker 1: former president. You need to have a link with the
Speaker 1: violence to make people stand up and say this was wrong,
Speaker 1: this is shocking, and we're going to hold him accountable.
Speaker 1: And and and again, the most obvious way to do
Speaker 1: that is to make him a co conspirator with the
Speaker 1: people who led the riot. And we haven't gotten to
Speaker 1: that point yet. Now some people have suggested we'll get there.
Speaker 1: I mean, we'll see. I guess there's at least one
Speaker 1: more hearing, maybe several more. But but that's that is
Speaker 1: that is a problem. But I think there is another
Speaker 1: way to make the riot part of a criminal case
Speaker 1: against Trump ahead, So no, um, I'll pick up with that. Um.
Speaker 1: It seems like they're relying a lot on his tweets,
Speaker 1: which don't which don't say let's have a march, let's
Speaker 1: stop the steel, let's go to the Capitol, but don't
Speaker 1: see anything. But and also even his his his speech
Speaker 1: that day, you know, sort of went around in circles
Speaker 1: as he talked, talks often in circles, and at one
Speaker 1: point he says, you know, I want to do it peacefully,
Speaker 1: something like to that effect. So it seems like there
Speaker 1: is nothing directly from him unless they get one of
Speaker 1: these people to cooperate. I mean, I tend to agree
Speaker 1: they need to have a solid case on the score. UM.
Speaker 1: They need a witness, preferably from the inside, to come
Speaker 1: forward and say, yes, Trump had a conversation with X,
Speaker 1: or with Y, or a representative of Trump, maybe Mark Meadows,
Speaker 1: who's up to his neck in this thing. Very canny
Speaker 1: the way he never, you know, comes front and center,
Speaker 1: but he's and he says different things to different people.
Speaker 1: He's a little like Trump that way, but he's in
Speaker 1: the thick of it. They need someone like that, um
Speaker 1: as a proxy for Trump having meetings and phone conversations
Speaker 1: where and Sun January six, there are planned out that
Speaker 1: that would be the that would be the best type
Speaker 1: of evidence to have, and so far they don't have it. UM.
Speaker 1: I mean, there is another way to do this. I
Speaker 1: was starting to say, I think one theory, and it's
Speaker 1: been suggested you don't need a full fledged agreement with
Speaker 1: the rioters. Instead, you can take the position, which is
Speaker 1: again part of what loc Cheney has been talking about.
Speaker 1: That Okay, the whole goal here was to pressure Pence.
Speaker 1: And when all these academic efforts failed, uh Eastman, you know,
Speaker 1: Clark and the Justice Department, when all this stuff went
Speaker 1: nowhere and they were sort of comically bad, he then
Speaker 1: realized the only way he was going to get pens
Speaker 1: to do his bidding was to put him in fear
Speaker 1: of his life and have a riot, you know, and
Speaker 1: sue or something so forceful Pence would be required to
Speaker 1: do Trump's bidding. Now that's a crude way of looking
Speaker 1: at the world, but it probably is Trump's view. The
Speaker 1: problem is, again the predicate is a little weak. I mean,
Speaker 1: we don't despite what Cheney said on Tuesday, the evidence
Speaker 1: that Trump knew the crowd was armed is pretty thin.
Speaker 1: The evidence that Trump knew they were dangerous is less thin,
Speaker 1: because in part he was the one working them up.
Speaker 1: But to establish all these things you need some witnesses.
Speaker 1: You can't have commentators speculating or providing their inferences, and
Speaker 1: we haven't heard a lot of that evidence. You know,
Speaker 1: you're you're getting inside his head and saying this is
Speaker 1: what he must be thinking. But you know he's got defenses.
Speaker 1: He can say, I never intended for there to be
Speaker 1: a riot, as you said, Trump pointed out that this
Speaker 1: should be peaceful at various points. He didn't know what
Speaker 1: weapons they were carrying. He was there to give a speech,
Speaker 1: He gave a speech, and then he got in a
Speaker 1: limo and left. So how can he be responsive for
Speaker 1: everything that ensued thereafter? Lisz Cheney uses legal phrases at
Speaker 1: different points since the beginning of these hearings, and on
Speaker 1: Tuesday she said, basically, he can't hide behind the defense
Speaker 1: of being willfully blind, which is a legal term. So
Speaker 1: tell us what she was getting to their Well, she's
Speaker 1: absolutely right. There's a doctrine in the criminal law that
Speaker 1: you can show intent if you willfully disregard manifest facts
Speaker 1: which you know to be true, and those facts lead
Speaker 1: to criminality. You know, judge will put it to the
Speaker 1: jury this way when he or she gives that charge.
Speaker 1: A defendant can't stick his or her head in the sand.
Speaker 1: Defendant is responsible for the natural consequences of what he says.
Speaker 1: For example, and if he knows that a mob has
Speaker 1: worked up and on the verge of violence, and he
Speaker 1: says certain inflammatory things. He can't turn around later and say, well,
Speaker 1: I never intended that they would go out and lynch
Speaker 1: X Y, even in the absence of a clear intent.
Speaker 1: And that's what the conscious disregard charges all about, and
Speaker 1: it's used all the time, and I think it would
Speaker 1: be probably used here if Trump were indicted. The problem
Speaker 1: what is the intent you're talking about? She's talking about
Speaker 1: a problem of intent, And you can use what I've
Speaker 1: just tried to summarize to buttress your case against the
Speaker 1: defendant and show that in this case, Trump had that
Speaker 1: intent but intend to do what. Once again, that sort
Speaker 1: of begs the question was Trump responsible for the riot?
Speaker 1: Did he intend that they would storm the capital and
Speaker 1: threaten Mike Pence and so forth? And it still brings
Speaker 1: you back to the same issue that the link between
Speaker 1: Trump and those things doesn't appear to me yet to
Speaker 1: be that strong. And what the case really needs is
Speaker 1: an insider, someone like Meadows or someone like Bannon or
Speaker 1: Roger Stone, although they'll never get Roger Stone's yeah he's
Speaker 1: in a different reality, that's true, but someone like that,
Speaker 1: And and here's here's the point, June. This points to
Speaker 1: something institutional it's wrong about the case. The January six
Speaker 1: Committee doesn't have the weapons to compel a witness like
Speaker 1: that to come forward. They can't say, and we've got
Speaker 1: you on X y Z crime. Unless you come forward
Speaker 1: and come clean and make a hundred percent truthful, accurate
Speaker 1: and complete proffer of everything you know, you're going to
Speaker 1: go down. Only the Justice Department can do that. And
Speaker 1: I think as people who have pointed out that Andrew
Speaker 1: Weissman had this piece in the New York Times, you
Speaker 1: may have seen us. And where is the Justice Department?
Speaker 1: Why are they, for example, begging the committee for its transcripts.
Speaker 1: They should have their own transcripts. They should have a
Speaker 1: grand jury investigation creating transcripts that no one else can
Speaker 1: see except the criminal investigators working for the Justice Department.
Speaker 1: They're the only ones who can break through. Liz Cheney,
Speaker 1: brilliant as she is and great as this committee has been,
Speaker 1: is not going to be in a position to break through.
Speaker 1: I don't believe and obtain a witness like this. Could
Speaker 1: the Justice Department charge Mark Meadows and then try to
Speaker 1: flip him, you know, That's what they should be doing
Speaker 1: as we speak. They should be thinking of ways to
Speaker 1: make the people around Trump respond to their inquiries in
Speaker 1: a truthful way. It's speech that every prosecutor is seen
Speaker 1: other prosecutors give hundreds of times. You know, it's the
Speaker 1: it's called the crossroads speech, Mark Meadows, You're on the horn.
Speaker 1: You're at a crossroads in your life. You can either
Speaker 1: be indicted and serve a substantial term in jail, or
Speaker 1: you can get out of this and go on with
Speaker 1: your life. What's it going to be? Now, They've obviously
Speaker 1: had those discussions with all these low level rioters and stuff.
Speaker 1: You know, these these guys that come in from Idaho
Speaker 1: and say, gee, I believe Donald Trump that we had
Speaker 1: to save the country. That's why I'm here. It's obviously
Speaker 1: worked with those people, But are they working their way
Speaker 1: up the chain to make the same pitch, just in
Speaker 1: a more sophisticated way to the higher ups. I hope so.
Speaker 1: I hope Andrew Weisman is wrong that they've been sort
Speaker 1: of sitting on their hands. But you know, it's going
Speaker 1: to be a challenge. I think this January six committee
Speaker 1: has been so successful it sort of took the Justice
Speaker 1: Department by surprise, and now they're playing catchup and that's
Speaker 1: not a position they should really be in. They should
Speaker 1: be leading, which is typically what happens in these cases.
Speaker 1: Typically the Justice Department comes in, they blank at the
Speaker 1: territory with grand jury subpoenas, and then they said, everyone else,
Speaker 1: back off grand jury secrecy. We can't tell you what
Speaker 1: we're up to. It's a violation of federal law. See
Speaker 1: Federal Rule six e grand jury secrecy. You got a
Speaker 1: way to We're done, and that usually ticks off state
Speaker 1: Attorney general, ticks off the sec But that's the way
Speaker 1: it works in most of these cases. But evidently they're
Speaker 1: not doing that here. This does focus attention on the
Speaker 1: Justice Department puts a lot of pressure on them. I
Speaker 1: want to read something that Larry Tribe said, and you
Speaker 1: tell me whether you agree. So the former president's direct
Speaker 1: responsibility for the riot, for the insurrection is now much
Speaker 1: easier to prove, and it would be increasingly problematic for
Speaker 1: the Attorney General not to authorize a full blown investigation
Speaker 1: into the president's direct responsibility. Do you agree. I think
Speaker 1: the a G has been trying to set an example
Speaker 1: to show that the Justice Department is above politics, unlike
Speaker 1: during the Trump administration. Yeah, the Justice part is doing
Speaker 1: a great job, you know, generally speaking, but on this
Speaker 1: hot potato, and that's what it is. This is tremendous
Speaker 1: headache for the Justice Department, given all the other things
Speaker 1: they have to do after Trump to restore faith and
Speaker 1: integrity of the Justice Department. It's a tremendous headache a
Speaker 1: because they're going to be blamed no matter what happens.
Speaker 1: Be the case is really his tribe. I think was
Speaker 1: suggesting they're quite and Weissman was in his piece quite massive.
Speaker 1: All these little strands are subtle and difficult to capture.
Speaker 1: All these witnesses have their agendas. Getting the Trump true
Speaker 1: believers to tell the truth is enormously difficult. There aren't
Speaker 1: that many Cassidy Hutchinson's around, unfortunately, and it is a
Speaker 1: very difficult case. And and keep this in mind, it's
Speaker 1: being conducted. The d o J investigation is being conducted
Speaker 1: in broad daylight. Usually when you start an investigation. All right,
Speaker 1: so I do a lot of secure these laws and
Speaker 1: this and this is how the sec or the U. S.
Speaker 1: Attorney's office works in a securities case. Someone a disgruntled investor,
Speaker 1: let's say, sends them a tip and it's confidential, and
Speaker 1: they have months to work on the tip. They gather
Speaker 1: all the records, trading records, securities records, massive recked tax returns, everything.
Speaker 1: They have the paper trail before they even begin, and
Speaker 1: then they start reaching out to witnesses and until they
Speaker 1: reach a certain level, no one knows this is going on,
Speaker 1: so they can operate with tremendous freedom of movement. This
Speaker 1: case is completely different. It's all been vetted. The January
Speaker 1: six Committee has done do good a job. They're not
Speaker 1: going to have any benefit of surprise. They're not going
Speaker 1: to have any secrecy, and that adds to the complexity.
Speaker 1: But as Professor Tribe was suggesting, they have no alternative
Speaker 1: but to go forward and pursue this. It's become a
Speaker 1: much bigger deal. And I think they saw it at
Speaker 1: the beginning of this process, but it's on their doorstep.
Speaker 1: They have to step up to the challenge and do
Speaker 1: this right. It's going to take a tremendous amount of
Speaker 1: talent and time and resources to do this right. And
Speaker 1: then at the end of the day, you've got policy questions.
Speaker 1: Should this guy even be indicted given the impact it's
Speaker 1: going to have on the country, Which Lord knows is
Speaker 1: suffered enough. She might say those aren't easy questions either.
Speaker 1: But to just get to that point where you have
Speaker 1: a choice indict or not indict, it's going to take
Speaker 1: a tremendous amount of work. And you know, they've got
Speaker 1: to have the will to undertake it and do it
Speaker 1: aggressively and do it in the right way, and they
Speaker 1: can't let political considerations interfere with that resolve. Um, They've
Speaker 1: got to treat it like any other case. It's it's
Speaker 1: going to be hard. Thanks so much, Kevin. That's Kevin O'Brien,
Speaker 1: a partner at Ford O'Brien. Landy progressives have been pushing
Speaker 1: President Biden and Senate Democrats to move faster on judicial
Speaker 1: nominations as the mid terms threatened their slim Senate majority,
Speaker 1: joining me as an expert on the judiciary, Carl Tobias,
Speaker 1: a professor at the University of Richmond Law School. From
Speaker 1: what they understand, Biden and the Democrats are on track
Speaker 1: to leave more than sixty judicial vacancies open at the
Speaker 1: end of this year. I think that's possible because right
Speaker 1: now we have sixty six at the district level and
Speaker 1: eight at the appeals court level, and There are also
Speaker 1: a number of future vacancies where judges make it contingent
Speaker 1: on someone being confirmed for their position, and so it
Speaker 1: is conceivable if you count all of those that they
Speaker 1: will not be a whole lot lower at the end
Speaker 1: of the year. We've seen how important the courts are,
Speaker 1: and progressives are saying that Senate Democrats should change some
Speaker 1: of the rules the way the Republicans change the rule,
Speaker 1: one being you know a simple thing to schedule more
Speaker 1: nominees at each hearing. They only have hearings every two
Speaker 1: weeks that the Senate is in session. Typically there are
Speaker 1: one or two appellate nominees and three or four, sometimes
Speaker 1: five district nominees at each hearing, and so you could
Speaker 1: have more appellate nominees at a particular hearing. I think
Speaker 1: another proposal is to have more frequent hearings instead of
Speaker 1: every two weeks, have them every ten days or even
Speaker 1: one a week, And so that is a possibility that
Speaker 1: has been proposed. Also, tell us about the blue slips,
Speaker 1: because progressive say, let's get rid of the blue slip
Speaker 1: for district court nominees. Yes, that's another possibility, and I
Speaker 1: think Chair Durban has tried to replicate what the Republicans
Speaker 1: did during Trump's time and essentially said what's good for
Speaker 1: Republicans when they have the majority is good for Democrats
Speaker 1: when they have the majority. And so has said that
Speaker 1: blue slips will not apply to Appeals Court nominees because
Speaker 1: Senator Grassles chair said there would be an exception for
Speaker 1: Circuit court nominees. And one way to move more quickly
Speaker 1: is to abolish the blue slip for district courts, But
Speaker 1: so far Senator Durban has said no, and I think
Speaker 1: he knows that that would drive the spiral downward even further,
Speaker 1: and so I think that's the problem for him. That's
Speaker 1: uncharted territory. It certainly would make it easier to nominate
Speaker 1: and confirm candidates for red states, and very few of
Speaker 1: those nominees have come from the White House so far.
Speaker 1: There's been plenty of vacancies in blue states and that
Speaker 1: has kept the White House more than busy. Republicans have
Speaker 1: changed the rules for judicial nominations a couple of times.
Speaker 1: So why are Democrats so reluctant to change the rules
Speaker 1: when there's so much at stake? Why don't they make
Speaker 1: their own rules? Especially when Lindsay Graham has sort of
Speaker 1: promised to change when the Republicans take over. If they
Speaker 1: take over well, and so has Mitch McConnell. He said
Speaker 1: that just about uh a week ago or so in
Speaker 1: Kentucky that he will scrutinize much more closely than Democrats
Speaker 1: have the nominees if the Republicans take the majority in
Speaker 1: the midterm election to November. And so you're correct, but
Speaker 1: Durban also recognizes if that happens, that it could become
Speaker 1: even more draconian and the process could become even worse
Speaker 1: if Democrats were to use those kind of tactics now,
Speaker 1: so I think he's keeping his powder dry. But certainly
Speaker 1: he could schedule either more people on hearings or schedule
Speaker 1: them more often. It does put a strain on the
Speaker 1: resources of the Judiciary Committee, which are rather limited, but
Speaker 1: it would be possible to do that, and so we
Speaker 1: may see it. Um. He hasn't said yet that he will,
Speaker 1: but he could. And but the calendar is difficult now
Speaker 1: if you look, I mean most of August the then
Speaker 1: it traditionally has been out. They could stay later when
Speaker 1: they come back at Labor Day from the August break,
Speaker 1: they'll want to go campaign because the third of them
Speaker 1: will be up or they'll be open seats in their states,
Speaker 1: and so they will want to leave and may not
Speaker 1: come back to after the elections. But there are also
Speaker 1: the possibility to be lamed up after the November eight
Speaker 1: midterm elections, and that could run all the way till
Speaker 1: early January, so there could be more hearings and more
Speaker 1: nominations and more confirmations. Then is there a problem with
Speaker 1: the Senate Majority Leader Chuck Schumer scheduling floor time or
Speaker 1: can he do that if it's important? He can do
Speaker 1: that if it's important. Part of the problem or the
Speaker 1: slowness on the floor can be attributed to the limited
Speaker 1: time that leader and the Democrats have. They basically come
Speaker 1: in on Monday evening and leave on Thursday evening, and
Speaker 1: so there's not a lot of floor time, and some
Speaker 1: of that is going to be used on legislation, but
Speaker 1: it is certainly possible. What isn't happening, which was a
Speaker 1: good tradition both sides followed, was when they come up
Speaker 1: to recesses to gather together a group of people who
Speaker 1: are on the floor and vote them route. But now
Speaker 1: you have to have a cloture vote. Then you have
Speaker 1: to have the confirmation vote, so each nominee takes an hour,
Speaker 1: and then then you have to have debate on thirty
Speaker 1: hours of debate on Appeals Court nominees, and so there
Speaker 1: can be a bit of a log jam created. But
Speaker 1: they could take a week and devote all that week
Speaker 1: to putting people up on the floor. Is the White
Speaker 1: House presenting nominees that are less controversial in an attempt
Speaker 1: to get more through faster? I don't think so. Occasionally
Speaker 1: it seems as if, um, some of the nominees are
Speaker 1: less likely to be considered controversial by the GOP than
Speaker 1: some earlier nominees. For example, UM, you know magistrate judges
Speaker 1: like uh Judge Pryor for the Seventh Circuit and then
Speaker 1: Dana Douglas a magistrate judge for the Fifth Circuit. I
Speaker 1: think are have you know, strong experience uh and have
Speaker 1: been judicial system or um been magistrate judges UM before?
Speaker 1: Though UM, I think to some extent the people For example,
Speaker 1: Judge pan who was not nominated and had a hearing
Speaker 1: already being elevated from the d C District Court for
Speaker 1: a vacancy on the DC Circuit. UH, she is very experienced,
Speaker 1: has been was a Spirit Court judge for ten years
Speaker 1: and then on the DC District Court for a short period. Um.
Speaker 1: But she is the kind of nominee that we're seeing
Speaker 1: now um and as opposed to say someone who is
Speaker 1: has been a federal public defender. So there's some of that,
Speaker 1: but I don't think it's very um, very prevalent um
Speaker 1: and to some extent um they don't want to bring
Speaker 1: forward very controversial people and I don't I don't think
Speaker 1: they have UM and so UM. Maybe there is some
Speaker 1: movement of what you're talking about, but it isn't large
Speaker 1: quantitatively or qualitatively. They're still all very experience and often
Speaker 1: very diverse uh in many ways, especially experience um in ideology.
Speaker 1: Justice Katangi Brown Jackson is joining the court and she's
Speaker 1: going to face a docket with a lot of highly
Speaker 1: controversial cases. Will she make a difference on the court
Speaker 1: because the six to three the super majority has been
Speaker 1: basically you know, controlling and doing what they want. Well,
Speaker 1: I mean, you are buying thirty years of time because
Speaker 1: she's thirty two or so years younger than Justice Prior,
Speaker 1: who was terrific justice. But I think her views are
Speaker 1: are somewhat similar to his and so I think she's
Speaker 1: likely to be a strong voice. Um, but you're correct,
Speaker 1: the math is not very promising. And as Justice Brennan
Speaker 1: used to recognize and did so, well, you have to
Speaker 1: get the five and so she is likely to be
Speaker 1: dissenting on a number of cases. But as she told
Speaker 1: the committee when she was confirmed, she will take each
Speaker 1: case on the law and the facts in the particular cases.
Speaker 1: So we'll see what kind of position she takes, but
Speaker 1: I expect she will be dissenting a fair amount with
Speaker 1: the other Democratic appointees, Elena Kagan and Sonya Soto Mayor.
Speaker 1: So with this last term where the Republican super majority
Speaker 1: did away with the constitutional right to abortion, continued knocking
Speaker 1: down the wall between church and state, took away power
Speaker 1: from the e p A to curb climate change, put
Speaker 1: more guns on the streets in major cities. Is there
Speaker 1: more movement you think to expand the Supreme Court. Well,
Speaker 1: I think there's discussion and talk about that. The President,
Speaker 1: I think, has said that he does not want to
Speaker 1: expand the Supreme Court. They had a commission. The commission
Speaker 1: had a lengthy report but didn't make very strong recommendations.
Speaker 1: But I think there is some more serious discussion, for example,
Speaker 1: of term limits and their questions about whether that could
Speaker 1: withstand a challenge. We'll just have to see. But I
Speaker 1: do think the rulings we saw, especially the abortion ruling,
Speaker 1: but others that you just talked about, are on the
Speaker 1: minds of many Americans, and certainly Dobbs is an issue
Speaker 1: for much of the American population which does favor the
Speaker 1: possibility of legal abortions, and we have many issues to
Speaker 1: address in that area. Thanks Carl. That's Professor Carl Tobias
Speaker 1: of the University of Richmond Law School. Coming up, Steve
Speaker 1: Bannon's trial starts on Monday. This is Bloomberg and that's
Speaker 1: if the edition of the Bloomberg Law Show. Remember you
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Speaker 1: I'm June Brassel, and you're listening to Bloomberg