WEBVTT - Advantage Twitter in Lawsuit Against Elon Musk 0:00:00.000 --> 0:00:04.800 I'm still waiting for some sort of logical explanation for 0:00:05.160 --> 0:00:08.680 the number of sort of fake or spam accounts on Twitter. 0:00:09.200 --> 0:00:12.840 Elon Musk has to wait no longer he can find 0:00:12.880 --> 0:00:16.320 the answers in the lawsuit Twitter has filed against him 0:00:16.360 --> 0:00:19.560 after Musk walked away from his forty four billion dollar 0:00:19.680 --> 0:00:22.640 deal to buy the company. Joining me is Eric Talley, 0:00:22.720 --> 0:00:26.360 a professor at Columbia Law School. Eric, give us your 0:00:26.400 --> 0:00:30.360 take on Twitter's complaint here. The lawsuits not terribly surprising. 0:00:30.640 --> 0:00:34.280 The lawyers for Twitter have come out of the box hot, 0:00:34.320 --> 0:00:37.479 and I think everyone expected them to. The relief that 0:00:37.520 --> 0:00:41.440 they're seeking, which is also not surprising, is a specific 0:00:41.560 --> 0:00:45.960 performance order essentially compelling Musk to go through with the deal. 0:00:46.159 --> 0:00:49.360 And they would have asked for that regardless of whether 0:00:49.840 --> 0:00:52.280 it makes sense for Musk to end up owning Twitter 0:00:52.400 --> 0:00:55.560 or not, because that gives them the maximal bargaining leverage. 0:00:55.680 --> 0:00:57.680 If they were to get that order, and he really 0:00:57.720 --> 0:01:00.560 doesn't want to own Twitter, he can, you know, try 0:01:00.640 --> 0:01:02.840 to bargain his way out of it in exchange for 0:01:02.920 --> 0:01:06.960 a significant settlement payment. So the relief that they've thought 0:01:07.160 --> 0:01:11.080 is exactly what everyone predicted they would seek. What they 0:01:11.200 --> 0:01:15.160 have attended to doing in the complaint quite effectively, is 0:01:15.280 --> 0:01:19.679 to make sure that they are beginning to state their 0:01:19.720 --> 0:01:24.160 case about how Twitter has all along been duly compliant 0:01:24.200 --> 0:01:28.680 with its obligations under the merger agreement, in contrast to 0:01:29.080 --> 0:01:32.840 Mr Musk's contention that they have not been forthcoming in 0:01:33.120 --> 0:01:36.720 delivering of data. I think a lot of people doubted 0:01:37.120 --> 0:01:40.720 Musk's assertions on this, and the complaint sort of lays 0:01:40.720 --> 0:01:44.319 out a little bit more that many of Musk's demands 0:01:44.440 --> 0:01:48.080 for data were actually met by Twitter, and he essentially 0:01:48.200 --> 0:01:51.200 kept escalating them and making them more frequent, not even 0:01:51.240 --> 0:01:54.240 really reviewing what they had already given him, until the 0:01:54.320 --> 0:01:56.760 point where that basically said, now we're not going to 0:01:56.840 --> 0:01:59.680 give you any more. We've got to protect information of 0:01:59.720 --> 0:02:03.000 our clients and customers and so forth. So I think 0:02:03.040 --> 0:02:05.800 that that was important because it was going to be 0:02:05.840 --> 0:02:09.320 important for Twitter, even though they're the plaintiff in this lawsuit, 0:02:09.480 --> 0:02:12.960 to be able to fend off arguments from Mr Musk 0:02:13.080 --> 0:02:16.040 that Twitter was in breach first. I don't view the 0:02:16.040 --> 0:02:20.680 complaint as being withering or sarcastic, but it did go 0:02:20.840 --> 0:02:25.280 out of its way to place excerpts of various tweets 0:02:25.280 --> 0:02:31.079 and responses, including poop emojis. In the complaint itself, largely, 0:02:31.120 --> 0:02:34.600 I think, just to signal how exasperating it has been 0:02:35.080 --> 0:02:39.000 to deal with the Musk team on this, particularly as 0:02:39.120 --> 0:02:42.240 it became more and more apparent that Mr Musk was 0:02:42.360 --> 0:02:45.000 really just looking for an escape hatch to try to 0:02:45.120 --> 0:02:48.880 dive out of and try to find some pretextual reason 0:02:49.120 --> 0:02:52.560 not to go forward with the transaction. It says Musk 0:02:52.600 --> 0:02:56.000 apparently believes that he, unlike every other party subject to 0:02:56.080 --> 0:02:59.240 Delaware contract law, is free to change his mind, trash 0:02:59.320 --> 0:03:05.079 the company, disrupt its operations, destroy shareholder value, and walk away. Yes, 0:03:05.200 --> 0:03:08.720 so that is a fairly strong statement in the complaint. 0:03:08.720 --> 0:03:11.000 And and then it's followed up very close to the 0:03:11.080 --> 0:03:15.240 end of complaint with a one sentence paragraph that that 0:03:15.320 --> 0:03:17.560 says something to the effect that, you know, Mr Musk 0:03:17.639 --> 0:03:21.000 must believe that his entire process with Twitter must be 0:03:21.120 --> 0:03:24.760 just some elaborate joke. And I think that that is 0:03:24.840 --> 0:03:29.280 an important set of inclusions into this complaint because when 0:03:29.280 --> 0:03:32.200 it comes right down to it, you know, the Delaware 0:03:32.240 --> 0:03:35.120 courts or the top business court in the country, and 0:03:35.200 --> 0:03:39.560 for good reason, they have a reputational stake in saying, look, 0:03:39.640 --> 0:03:44.160 we take contracts and contractual obligations seriously, and if your 0:03:44.280 --> 0:03:49.640 cavalier or un serious about getting into a significant deal 0:03:50.120 --> 0:03:53.480 and then expect to essentially waltz away into the sunset 0:03:53.520 --> 0:03:58.120 with no repercussions, you're in for a fairly unpleasant surprise. 0:03:58.360 --> 0:04:00.960 That Delaware at least would like to think of itself 0:04:01.000 --> 0:04:05.680 as the century that allows people to enter into contracts 0:04:05.880 --> 0:04:07.880 and feel comfortable that the other side is going to 0:04:07.960 --> 0:04:10.800 live up to their obligations because a Delaware court is 0:04:10.840 --> 0:04:14.560 standing there ready to enforce them. And so I think 0:04:14.600 --> 0:04:17.760 that some of the more animated parts of this complaint 0:04:17.920 --> 0:04:23.440 really are designed to tap into what everyone sort of 0:04:23.480 --> 0:04:27.960 believes that Delaware prides itself is being the business law 0:04:28.000 --> 0:04:30.560 court that you can rely on that is going to 0:04:31.240 --> 0:04:35.560 be willing to, you know, make those difficult decisions to say, yeah, 0:04:35.640 --> 0:04:38.039 we're going to either force someone to go through with 0:04:38.080 --> 0:04:42.640 this contract or have them see significant repercussions if they don't. 0:04:42.839 --> 0:04:47.839 Specific performance is a big ask to Delaware courts often, 0:04:48.640 --> 0:04:52.600 you know, order specific performance of a contract like this. Yeah. 0:04:52.600 --> 0:04:56.000 As a general matter, in contract law, the usual rule 0:04:56.240 --> 0:05:00.080 in the United States is money damages for breaching a 0:05:00.160 --> 0:05:04.840 contract but in situations where it's very, very difficult to 0:05:04.880 --> 0:05:08.119 come up with those dollar values on how you would 0:05:08.120 --> 0:05:13.080 even compensate someone, then courts have always reserved their so 0:05:13.160 --> 0:05:16.680 called equitable discretion to say, Okay, we're just going to 0:05:16.760 --> 0:05:20.159 actually issue a court order forcing you to make good 0:05:20.480 --> 0:05:23.640 on your promise. Now, a lot of contracting parties, and 0:05:23.720 --> 0:05:26.840 this is true of the Twitter Musk deal as well, 0:05:27.440 --> 0:05:31.159 put in a paragraph that says, by the way, both 0:05:31.240 --> 0:05:34.080 parties hereby acknowledge that it would be really hard to 0:05:34.120 --> 0:05:37.080 come up with money damages, and therefore, if there's a 0:05:37.120 --> 0:05:41.680 breach by either side, the other side will be entitled 0:05:41.760 --> 0:05:45.680 to seek specific performance if they want it. Now, there's 0:05:45.720 --> 0:05:48.400 kind of an interesting question about whether that kind of 0:05:48.480 --> 0:05:52.400 provision has an effect on when and other under what 0:05:52.560 --> 0:05:55.039 circumstances a court will say, Okay, we're going to take 0:05:55.080 --> 0:05:57.839 their invitation to do it. Some courts just say no, 0:05:57.960 --> 0:05:59.640 that this is up to me whether to do this 0:05:59.680 --> 0:06:03.400 as a judge. But the Delaware courts have definitely been 0:06:03.440 --> 0:06:07.359 willing to look at a contract, take those representations that 0:06:07.400 --> 0:06:09.240 are in the contract, and say okay, yeah, we are 0:06:09.320 --> 0:06:13.479 now more willing to enforce this contract with an injunction 0:06:13.520 --> 0:06:16.520 as opposed to money damages. Now the Chancellor who is 0:06:16.640 --> 0:06:21.640 getting this case. Chancellor McCormick, very good judge, incredibly smart, 0:06:21.800 --> 0:06:25.040 hard working, sharp judge. Hasn't been on the court for 0:06:25.080 --> 0:06:27.080 a long time, but she's been on long enough to 0:06:27.160 --> 0:06:29.640 issue some pretty good opinions and people have a high 0:06:29.640 --> 0:06:32.640 regard for her. One of her opinions that she issued 0:06:32.880 --> 0:06:36.239 did exactly what Twitter is hoping that she'll do this time. 0:06:36.560 --> 0:06:39.720 A buyer god weak need about a deal that they 0:06:39.760 --> 0:06:42.800 had entered into it was a much smaller deal, and 0:06:43.080 --> 0:06:46.839 tried to back out of the deal, similarly to Mosque, 0:06:46.920 --> 0:06:50.920 citing various types of pretextual reasons why you know things 0:06:50.920 --> 0:06:53.279 were going to fail, the financing was going to fail, 0:06:53.480 --> 0:06:57.440 And Chancellor McCormick was just unsympathetic to those claims and 0:06:57.480 --> 0:07:00.760 basically said, look, you brought that upon your solve. You're 0:07:00.800 --> 0:07:04.200 the one that breathed life into your current failing of 0:07:04.279 --> 0:07:06.479 financing because you didn't want to go through on the deal. 0:07:06.560 --> 0:07:09.600 So you sabotage your own deal. Well, guess what, I'm 0:07:09.600 --> 0:07:12.040 going to issue an injunction that forces you to go 0:07:12.200 --> 0:07:14.920 through with it anyway. So I think that the draw 0:07:15.160 --> 0:07:18.800 of Chancellor McCormick. Hearing this case, that was probably welcome 0:07:18.880 --> 0:07:22.800 news to Twitter, probably another source of a concern and 0:07:22.840 --> 0:07:26.720 a headache to Mr Musk's attorneys. Matthew Shettenham, a litigation 0:07:26.760 --> 0:07:31.640 analyst for Bloomberg Intelligence, gives Twitter a six chance to 0:07:31.760 --> 0:07:35.239 win specific performance. What do you think the chances are. 0:07:35.600 --> 0:07:37.920 I think the chances are at least that And I 0:07:37.960 --> 0:07:41.560 would say that the types of situations that could derail 0:07:41.720 --> 0:07:45.480 specific performance, I think are fairly remote here. The one 0:07:45.880 --> 0:07:49.920 issue that could cloud things up a little bit is 0:07:50.200 --> 0:07:55.040 how does that injunction get administered? Even when a court 0:07:55.280 --> 0:07:59.480 is inclined to issue a specific performance decree, it doesn't 0:07:59.520 --> 0:08:03.239 necessary only want to sign itself up for a year's 0:08:03.320 --> 0:08:07.000 long babysitting service of the parties themselves to try to 0:08:07.360 --> 0:08:11.760 superintend and oversee the process of closing the deal. And 0:08:11.840 --> 0:08:15.360 so that can sometimes be a reason not to grant 0:08:15.400 --> 0:08:19.360 specific performance. And you know, in this instance, it's conceivable 0:08:19.480 --> 0:08:22.400 that a judge might say, well, you know, boy, if 0:08:22.440 --> 0:08:25.960 I compel performance, do I then have to be the 0:08:26.160 --> 0:08:29.360 person who then wrangles all the banks into court and 0:08:29.520 --> 0:08:32.080 tells them that they have to lend on this deal. 0:08:32.600 --> 0:08:35.520 Maybe maybe not. Chentleen mccorma didn't even bother doing that. 0:08:35.640 --> 0:08:37.480 In the other case, you just said you gotta go 0:08:37.520 --> 0:08:42.120 out and get your financing. So that's one potential obstacle. 0:08:42.400 --> 0:08:46.920 There's been some speculation that Musk might just ignore in 0:08:47.080 --> 0:08:51.559 order for specific performance. I doubt that that is going 0:08:51.600 --> 0:08:56.880 to happen. It would be absolutely unaffront to this reputational 0:08:56.960 --> 0:08:59.880 stake that the Delaware Cords have in being serious of 0:09:00.080 --> 0:09:05.439 about enforcing contracts. And because Musk owns so many assets 0:09:05.480 --> 0:09:08.520 that are within the jurisdiction of Delaware, largely in the 0:09:08.520 --> 0:09:11.319 form of stock of other companies that he owns that 0:09:11.360 --> 0:09:15.520 are Delaware companies, it would be not terribly hard for 0:09:15.760 --> 0:09:18.120 Chancellor McCormick to say, Okay, look, if you don't want 0:09:18.120 --> 0:09:21.080 to comply with that, then we will start a civil 0:09:21.120 --> 0:09:24.680 contempt proceeding and I can fashion any remedy I want, 0:09:24.760 --> 0:09:28.080 including the seizure of your stock of other companies that 0:09:28.160 --> 0:09:31.440 you might own. Now, that is definitely the nuclear option, 0:09:31.720 --> 0:09:35.079 but I think most people understand that nuclear option is there, 0:09:35.080 --> 0:09:38.120 hardly ever gets used because most people basically believe the 0:09:38.160 --> 0:09:41.000 Delaware Chancery Corps. So, you know, I think that there 0:09:41.000 --> 0:09:43.880 are some folks who are kind of discounting the likelihood 0:09:43.920 --> 0:09:46.800 of specific performance because they just think Musk is gonna 0:09:46.880 --> 0:09:51.840 ignore a specific performance decree. I don't really share that concerns. 0:09:51.880 --> 0:09:54.800 I think that if the decree comes forward, he's going 0:09:54.840 --> 0:09:57.600 to comply with it, and it'll be pretty clear that 0:09:57.679 --> 0:09:59.640 it's going to be in his best interest to comply 0:09:59.679 --> 0:10:03.720 with it. But does Twitter really want Musk to take 0:10:03.760 --> 0:10:07.520 over the company or at that point would they come 0:10:07.600 --> 0:10:12.800 to some kind of agreement, some monetary agreement that I 0:10:12.840 --> 0:10:16.400 think is exactly the end game here. It Maybe we 0:10:16.440 --> 0:10:19.800 don't know for sure. It may be that the vanity 0:10:19.840 --> 0:10:23.560 purchase that Elon Musk was interested in in April is 0:10:23.600 --> 0:10:25.880 still a vanity purchase that he's interested in, and he's 0:10:25.920 --> 0:10:27.840 just trying to get a better price. And if that's 0:10:27.880 --> 0:10:30.760 the case, then the settlement will take the form of 0:10:30.800 --> 0:10:34.200 a recut deal. One of the things that is starting 0:10:34.240 --> 0:10:37.920 to push kind of in opposition to that possibility is 0:10:37.920 --> 0:10:41.160 the fact that the relations between pretty much everyone at 0:10:41.160 --> 0:10:44.640 Twitter and Mr Musk have so soured that it's unclear whether, 0:10:44.840 --> 0:10:46.560 you know, if you were to take hold of Twitter 0:10:46.640 --> 0:10:49.400 and go into corporate headquarters one day, there'd be anyone 0:10:49.520 --> 0:10:53.000 left to work with him, So so it may well 0:10:53.080 --> 0:10:56.000 be the case that he doesn't really want to own it. 0:10:56.360 --> 0:10:58.600 If he did, it would be in an even worse 0:10:58.600 --> 0:11:01.840 shape because everyone will be bailing and jumping ship, and 0:11:01.920 --> 0:11:03.880 it may just be better to keep it in the 0:11:03.960 --> 0:11:08.040 hands of the distributed public investors at this point. And 0:11:08.080 --> 0:11:11.160 if that's the case, then Twitter will be armed with 0:11:11.200 --> 0:11:14.280 a specific performance decree, but they will sit down and 0:11:14.360 --> 0:11:16.560 bargain with him and say, okay, now that you know 0:11:17.120 --> 0:11:19.880 what the disagreement point is here, right that if you 0:11:19.920 --> 0:11:22.680 don't agree to a hefty settlement with us, we're basically 0:11:22.720 --> 0:11:25.760 going to enforce this against you. Uh. That is essentially 0:11:25.800 --> 0:11:28.319 going to loosen up the purse string of a settlement 0:11:28.360 --> 0:11:32.000 payment that Elon must would be then willing to pay 0:11:32.120 --> 0:11:35.200 to just walk away and wash his hands entirely of 0:11:35.320 --> 0:11:40.360 this unpleasant episode. Finally, Twitter says that it can do 0:11:40.400 --> 0:11:46.000 this trial in four days. Is that possible? Likely? It 0:11:46.080 --> 0:11:50.120 is not only possible, um, but this happens routinely in 0:11:50.160 --> 0:11:54.840 these expedited proceedings in Delaware court, and so one of 0:11:54.880 --> 0:11:57.920 the um one of the reasons that Delaware is so 0:11:58.080 --> 0:12:02.040 favored as a business litigation and venue is not just 0:12:02.120 --> 0:12:04.920 because of the quality and the predictability of the judges, 0:12:05.240 --> 0:12:09.720 but also because they basically make themselves available in cases 0:12:09.760 --> 0:12:14.520 that are UM, you know, critical time critical to adjudicate 0:12:14.559 --> 0:12:18.720 these cases quickly to essentially render an outcome. And I 0:12:18.760 --> 0:12:21.560 think for Twitter, which at this stage is now sort 0:12:21.559 --> 0:12:26.120 of in this UM incredibly unpleasant state of limbo in 0:12:26.160 --> 0:12:29.760 which you know, people are quitting, there's uncertainty about what's 0:12:29.800 --> 0:12:32.440 going to happen, it's pretty clear that they want to 0:12:32.480 --> 0:12:36.720 move forward, and the four day trial for most of 0:12:36.720 --> 0:12:39.520 the facts that are associated with this case, you know, 0:12:39.720 --> 0:12:45.800 probably is not unrealistic UM in any regard because quite frankly, 0:12:45.880 --> 0:12:48.800 many of the back and forth UM interactions in this 0:12:48.880 --> 0:12:53.360 case have ironically enough occurred over Twitter, so they're out there, 0:12:53.400 --> 0:12:56.880 they're publicly known. The one possible exception to this that 0:12:57.000 --> 0:12:59.880 Must you know, alluded to obviously in a in a 0:13:00.000 --> 0:13:04.480 cryptic tweet himself, was you know, whether that's going to 0:13:04.600 --> 0:13:09.720 open the Pandora's box of all the data feed UM 0:13:09.760 --> 0:13:13.800 inputs that Twitter has in order to determine what the 0:13:13.920 --> 0:13:19.560 nature of the alleged bot account problem is inside Twitter. 0:13:20.080 --> 0:13:23.240 I doubt it will get that far. I suspect that 0:13:23.400 --> 0:13:25.800 the way that the whole you know, spam account and 0:13:25.880 --> 0:13:28.680 body account thing has has evolved, and this is in 0:13:28.720 --> 0:13:31.600 the in the complaint as well, is that you know, 0:13:31.640 --> 0:13:34.960 Twitter had a lot of discretion on on how to 0:13:35.000 --> 0:13:38.880 deal with that data um provision process. They were given 0:13:38.920 --> 0:13:41.760 that discretion in the contract, and and the judge is 0:13:41.800 --> 0:13:45.640 likely just going to limit her attention to whether they 0:13:45.679 --> 0:13:48.480 abuse their own discretion, and that's not going to require 0:13:48.520 --> 0:13:51.959 a deep dive into what was it gigabytes petty bytes 0:13:52.040 --> 0:13:55.440 of data that are cited in the complaint. So yeah, 0:13:55.520 --> 0:13:56.960 I think they're going to be able to do this 0:13:57.000 --> 0:14:00.560 in four days. But make no mistake, there are countless 0:14:00.559 --> 0:14:03.160 attorneys on both sides that are now gearing up for 0:14:03.240 --> 0:14:05.960 trial because who canna happen quickly? They've got about six 0:14:06.000 --> 0:14:08.680 weeks before, you know, things are going to get real 0:14:08.760 --> 0:14:12.720 in Delaware. Thanks Eric. That's professor Eric Talley of Columbia 0:14:12.800 --> 0:14:15.840 Law School coming up next. What has the January six 0:14:15.840 --> 0:14:20.120 Committee proven so far? This is Bloomberg. The House committee 0:14:20.160 --> 0:14:24.280 investigating the capital attack on January six is holding its 0:14:24.320 --> 0:14:27.920 eighth public session next week. That was expected to be 0:14:28.040 --> 0:14:31.240 the finale, but now the committee is mapping out steps 0:14:31.320 --> 0:14:36.480 beyond next week's session for continuing its investigation, including possibly 0:14:36.520 --> 0:14:39.360 holding more hearings. What kind of a case has the 0:14:39.360 --> 0:14:44.120 committee presented against former President Donald Trump so far? Joining 0:14:44.200 --> 0:14:47.800 me as former federal prosecutor Kevin O'Brien, a partner at 0:14:47.800 --> 0:14:51.800 Ford O'Brien Landy, what is your take on what the 0:14:51.840 --> 0:14:57.080 committee has proven so far as far as former President 0:14:57.120 --> 0:15:01.960 Trump's involvement. In January six, the hearing was truly impressive, 0:15:02.000 --> 0:15:04.960 the way they weaved all these strands together, and they 0:15:05.000 --> 0:15:08.520 clearly have a theory, which is the Trump is responsible 0:15:08.520 --> 0:15:11.760 for everything. I think Liz Cheney has that wonderful line 0:15:11.760 --> 0:15:16.040 that she repeats, but he knew the mob was angry, 0:15:16.520 --> 0:15:20.240 he knew they were armed and dangerous. Uh, and he 0:15:20.320 --> 0:15:23.800 sent them to the capital anyway, which pretty much I 0:15:23.840 --> 0:15:27.920 think encapsulates the theory. I think from the standpoint of 0:15:27.920 --> 0:15:32.120 a criminal prosecution, though there's still a number of problems. 0:15:32.440 --> 0:15:36.120 You know as someone who's tried criminal cases, that the 0:15:36.200 --> 0:15:40.520 reality is much different at a trial. Fewer things are admissible, 0:15:41.080 --> 0:15:44.560 harder evidence is required, and there are certain legal requirements 0:15:44.560 --> 0:15:48.000 you need to satisfy before you can even get the 0:15:48.040 --> 0:15:52.600 case to trial. I'm concerned that and I think most 0:15:52.600 --> 0:15:57.160 people would actually admit this if you ask them, knowledgeable people, 0:15:57.320 --> 0:16:00.360 even that they haven't made out a case that there 0:16:00.440 --> 0:16:05.160 was a conspiracy between Trump and the mob on January six. 0:16:06.000 --> 0:16:11.760 No one suggested yet that he directly or indirectly reached 0:16:11.880 --> 0:16:15.080 any agreement when any of the leaders, any of the 0:16:15.120 --> 0:16:18.680 Proud Boys or oath keepers, for example, to storm the 0:16:18.760 --> 0:16:23.280 Capitol or wreak violence on the Capitol, or do anything, 0:16:23.640 --> 0:16:31.480 for example, to compel My Pence to undo the electors 0:16:31.520 --> 0:16:34.840 and put in a Trump approved slate of electors that 0:16:34.920 --> 0:16:39.640 would make him the president. There's been no proof of that. Now, 0:16:39.680 --> 0:16:42.400 you don't need that in a criminal case. You don't 0:16:42.400 --> 0:16:45.840 need a conspiracy, but you do have to have some 0:16:46.000 --> 0:16:51.160 link to the violence on that day. Otherwise you're it's like, 0:16:51.960 --> 0:16:56.320 you know, Hamlet playing Hamlet without the ghost. You're talking 0:16:56.360 --> 0:17:00.880 about a bunch of treason as clerks like John Eastman 0:17:01.920 --> 0:17:04.359 and people in the White House coming up with these 0:17:04.400 --> 0:17:10.160 theories that were wrong and get legal. But if that's 0:17:10.160 --> 0:17:13.720 all there is, and those all fell flat, by the way, 0:17:13.760 --> 0:17:20.160 because cooler heads prevailed even within Trump's immediate orbit, if 0:17:20.200 --> 0:17:23.280 that's all you have, then you have a violation of 0:17:23.359 --> 0:17:26.879 law that is somewhat technical, and I think it's unlikely 0:17:27.520 --> 0:17:30.160 or at least there's some significant doubt whether a case 0:17:30.280 --> 0:17:35.000 like that would really appeal to a criminal jury. And 0:17:35.200 --> 0:17:37.439 keep in mind you're talking about an indictment of the 0:17:37.480 --> 0:17:40.960 former president. You need to have a link with the 0:17:41.119 --> 0:17:46.600 violence to make people stand up and say this was wrong, 0:17:47.520 --> 0:17:51.359 this is shocking, and we're going to hold him accountable. 0:17:51.440 --> 0:17:55.280 And and and again, the most obvious way to do 0:17:55.320 --> 0:17:58.359 that is to make him a co conspirator with the 0:17:58.400 --> 0:18:03.080 people who led the riot. And we haven't gotten to 0:18:03.160 --> 0:18:07.480 that point yet. Now some people have suggested we'll get there. 0:18:07.640 --> 0:18:09.640 I mean, we'll see. I guess there's at least one 0:18:09.680 --> 0:18:16.199 more hearing, maybe several more. But but that's that is 0:18:16.840 --> 0:18:19.520 that is a problem. But I think there is another 0:18:19.560 --> 0:18:22.720 way to make the riot part of a criminal case 0:18:22.840 --> 0:18:29.919 against Trump ahead, So no, um, I'll pick up with that. Um. 0:18:30.840 --> 0:18:34.480 It seems like they're relying a lot on his tweets, 0:18:35.000 --> 0:18:39.080 which don't which don't say let's have a march, let's 0:18:39.080 --> 0:18:41.879 stop the steel, let's go to the Capitol, but don't 0:18:42.000 --> 0:18:49.400 see anything. But and also even his his his speech 0:18:49.520 --> 0:18:52.800 that day, you know, sort of went around in circles 0:18:52.840 --> 0:18:56.160 as he talked, talks often in circles, and at one 0:18:56.200 --> 0:18:59.040 point he says, you know, I want to do it peacefully, 0:18:59.359 --> 0:19:02.560 something like to that effect. So it seems like there 0:19:02.680 --> 0:19:07.439 is nothing directly from him unless they get one of 0:19:07.480 --> 0:19:12.680 these people to cooperate. I mean, I tend to agree 0:19:12.760 --> 0:19:17.880 they need to have a solid case on the score. UM. 0:19:17.920 --> 0:19:24.480 They need a witness, preferably from the inside, to come 0:19:24.560 --> 0:19:28.800 forward and say, yes, Trump had a conversation with X, 0:19:28.880 --> 0:19:33.520 or with Y, or a representative of Trump, maybe Mark Meadows, 0:19:33.600 --> 0:19:38.199 who's up to his neck in this thing. Very canny 0:19:38.280 --> 0:19:41.480 the way he never, you know, comes front and center, 0:19:41.560 --> 0:19:44.720 but he's and he says different things to different people. 0:19:45.480 --> 0:19:48.199 He's a little like Trump that way, but he's in 0:19:48.200 --> 0:19:51.840 the thick of it. They need someone like that, um 0:19:52.200 --> 0:19:58.359 as a proxy for Trump having meetings and phone conversations 0:19:59.160 --> 0:20:03.440 where and Sun January six, there are planned out that 0:20:03.440 --> 0:20:06.320 that would be the that would be the best type 0:20:06.359 --> 0:20:10.119 of evidence to have, and so far they don't have it. UM. 0:20:10.600 --> 0:20:12.159 I mean, there is another way to do this. I 0:20:12.200 --> 0:20:14.840 was starting to say, I think one theory, and it's 0:20:14.880 --> 0:20:19.120 been suggested you don't need a full fledged agreement with 0:20:19.400 --> 0:20:24.600 the rioters. Instead, you can take the position, which is 0:20:24.640 --> 0:20:27.200 again part of what loc Cheney has been talking about. 0:20:27.240 --> 0:20:30.520 That Okay, the whole goal here was to pressure Pence. 0:20:31.440 --> 0:20:37.280 And when all these academic efforts failed, uh Eastman, you know, 0:20:37.520 --> 0:20:40.800 Clark and the Justice Department, when all this stuff went 0:20:40.880 --> 0:20:44.480 nowhere and they were sort of comically bad, he then 0:20:44.520 --> 0:20:46.639 realized the only way he was going to get pens 0:20:46.720 --> 0:20:49.760 to do his bidding was to put him in fear 0:20:49.800 --> 0:20:52.879 of his life and have a riot, you know, and 0:20:53.040 --> 0:20:57.959 sue or something so forceful Pence would be required to 0:20:58.160 --> 0:21:01.000 do Trump's bidding. Now that's a crude way of looking 0:21:01.000 --> 0:21:05.080 at the world, but it probably is Trump's view. The 0:21:05.200 --> 0:21:10.200 problem is, again the predicate is a little weak. I mean, 0:21:10.240 --> 0:21:14.640 we don't despite what Cheney said on Tuesday, the evidence 0:21:14.680 --> 0:21:18.680 that Trump knew the crowd was armed is pretty thin. 0:21:18.840 --> 0:21:22.960 The evidence that Trump knew they were dangerous is less thin, 0:21:23.280 --> 0:21:26.360 because in part he was the one working them up. 0:21:26.400 --> 0:21:29.440 But to establish all these things you need some witnesses. 0:21:29.480 --> 0:21:33.880 You can't have commentators speculating or providing their inferences, and 0:21:34.040 --> 0:21:36.359 we haven't heard a lot of that evidence. You know, 0:21:36.480 --> 0:21:38.960 you're you're getting inside his head and saying this is 0:21:39.000 --> 0:21:42.320 what he must be thinking. But you know he's got defenses. 0:21:42.640 --> 0:21:44.720 He can say, I never intended for there to be 0:21:44.800 --> 0:21:48.199 a riot, as you said, Trump pointed out that this 0:21:48.240 --> 0:21:52.320 should be peaceful at various points. He didn't know what 0:21:52.520 --> 0:21:55.720 weapons they were carrying. He was there to give a speech, 0:21:55.760 --> 0:21:57.399 He gave a speech, and then he got in a 0:21:57.440 --> 0:22:00.320 limo and left. So how can he be responsive for 0:22:00.400 --> 0:22:06.240 everything that ensued thereafter? Lisz Cheney uses legal phrases at 0:22:06.240 --> 0:22:10.240 different points since the beginning of these hearings, and on 0:22:10.280 --> 0:22:13.760 Tuesday she said, basically, he can't hide behind the defense 0:22:13.800 --> 0:22:17.360 of being willfully blind, which is a legal term. So 0:22:17.520 --> 0:22:19.760 tell us what she was getting to their Well, she's 0:22:19.800 --> 0:22:22.639 absolutely right. There's a doctrine in the criminal law that 0:22:22.720 --> 0:22:28.960 you can show intent if you willfully disregard manifest facts 0:22:29.359 --> 0:22:32.760 which you know to be true, and those facts lead 0:22:32.880 --> 0:22:36.040 to criminality. You know, judge will put it to the 0:22:36.119 --> 0:22:38.960 jury this way when he or she gives that charge. 0:22:39.400 --> 0:22:42.320 A defendant can't stick his or her head in the sand. 0:22:42.840 --> 0:22:46.800 Defendant is responsible for the natural consequences of what he says. 0:22:46.880 --> 0:22:50.159 For example, and if he knows that a mob has 0:22:50.240 --> 0:22:54.240 worked up and on the verge of violence, and he 0:22:54.320 --> 0:22:57.960 says certain inflammatory things. He can't turn around later and say, well, 0:22:58.000 --> 0:23:00.359 I never intended that they would go out and lynch 0:23:00.880 --> 0:23:03.800 X Y, even in the absence of a clear intent. 0:23:04.240 --> 0:23:09.000 And that's what the conscious disregard charges all about, and 0:23:09.080 --> 0:23:11.359 it's used all the time, and I think it would 0:23:11.359 --> 0:23:15.200 be probably used here if Trump were indicted. The problem 0:23:15.359 --> 0:23:18.080 what is the intent you're talking about? She's talking about 0:23:18.080 --> 0:23:21.160 a problem of intent, And you can use what I've 0:23:21.200 --> 0:23:24.960 just tried to summarize to buttress your case against the 0:23:25.000 --> 0:23:27.960 defendant and show that in this case, Trump had that 0:23:28.040 --> 0:23:32.040 intent but intend to do what. Once again, that sort 0:23:32.040 --> 0:23:36.399 of begs the question was Trump responsible for the riot? 0:23:36.640 --> 0:23:39.959 Did he intend that they would storm the capital and 0:23:40.040 --> 0:23:43.760 threaten Mike Pence and so forth? And it still brings 0:23:43.800 --> 0:23:46.440 you back to the same issue that the link between 0:23:46.600 --> 0:23:51.119 Trump and those things doesn't appear to me yet to 0:23:51.240 --> 0:23:55.359 be that strong. And what the case really needs is 0:23:55.840 --> 0:24:00.639 an insider, someone like Meadows or someone like Bannon or 0:24:00.760 --> 0:24:05.840 Roger Stone, although they'll never get Roger Stone's yeah he's 0:24:05.840 --> 0:24:08.960 in a different reality, that's true, but someone like that, 0:24:09.240 --> 0:24:11.919 And and here's here's the point, June. This points to 0:24:12.000 --> 0:24:15.800 something institutional it's wrong about the case. The January six 0:24:15.880 --> 0:24:20.000 Committee doesn't have the weapons to compel a witness like 0:24:20.080 --> 0:24:23.440 that to come forward. They can't say, and we've got 0:24:23.480 --> 0:24:27.000 you on X y Z crime. Unless you come forward 0:24:27.119 --> 0:24:32.040 and come clean and make a hundred percent truthful, accurate 0:24:32.119 --> 0:24:36.359 and complete proffer of everything you know, you're going to 0:24:36.480 --> 0:24:40.960 go down. Only the Justice Department can do that. And 0:24:41.000 --> 0:24:43.359 I think as people who have pointed out that Andrew 0:24:43.359 --> 0:24:45.439 Weissman had this piece in the New York Times, you 0:24:45.480 --> 0:24:47.680 may have seen us. And where is the Justice Department? 0:24:47.920 --> 0:24:52.040 Why are they, for example, begging the committee for its transcripts. 0:24:52.640 --> 0:24:55.639 They should have their own transcripts. They should have a 0:24:55.640 --> 0:24:59.880 grand jury investigation creating transcripts that no one else can 0:25:00.080 --> 0:25:04.639