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Speaker 1: This is Bloomberg Law with June Grosseol from Bloomberg Radio.

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Speaker 2: On Friday, the Department of Justice served the Federal Reserve

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Speaker 2: with grand jury subpoenas threatening a criminal indictment related to

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Speaker 2: my testimony before the Senate Banking Committee last June.

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Speaker 3: In an unusual, forceful written in video statement released Sunday evening,

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Speaker 3: Federal Reserve Chair Jerome Powell announced an unprecedented move by

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Speaker 3: the Trump administration the threat of a criminal indictment over

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Speaker 3: Powell's congressional testimony in June on ongoing renovations of the

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Speaker 3: Fed's headquarters. But Powell said the move should be seen

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Speaker 3: in the broader context of the administration's threats and ongoing pressure.

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Speaker 2: The threat of criminal charges is a consequence of the

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Speaker 2: Federal Reserve setting interest rates based on our best assessment

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Speaker 2: of what will serve the public, rather than following the

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Speaker 2: preferences of the present. This is about whether the Fed

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Speaker 2: will be able to continue to set interest rates based

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Speaker 2: on evidence and economic conditions, or whether instead monetary policy

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Speaker 2: will be directed by political pressure or intimidation.

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Speaker 3: There was rare pushback from the Republicans over the criminal investigation.

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Speaker 3: Senator Tom Tillis vowed to oppose any Trump nominees to

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Speaker 3: the FED until the matter of the grand jury investigation

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Speaker 3: into Powell is resolved, and other Republican senators also offered

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Speaker 3: pushback on the investigation. Joining me is Elliott Stein Bloomberg

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Speaker 3: Intelligence senior litigation analyst Elliott So this investigation is connected

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Speaker 3: to his congressional testimony, tell us more about it.

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Speaker 4: Yeah, that's right. The FED has been undergoing renovations of

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Speaker 4: its building for several years now, and Chairman Powell testified

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Speaker 4: to Congress in June about those renovations because the Trump

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Speaker 4: administration had been lobbying criticisms at at the chair and

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Speaker 4: I think Republicans in Congress picked up on that as well.

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Speaker 4: Although you know, the larger context, of course, is that

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Speaker 4: the Trump administration and Trump himself have been very dissatisfied

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Speaker 4: with Chairman Powell and his policy on interest rates. So

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Speaker 4: that's sort of a broader context, which Chairman Powell alluded

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Speaker 4: to in his video response last night. But yeah, the

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Speaker 4: allegations that the subpoenas are based on are that Derman

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Speaker 4: Powell lied to Congress in his testimony in June concerning

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Speaker 4: the renovations, and the alleged cost overruns of those renovations.

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Speaker 3: So it's about the renovations. Do we know exactly what

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Speaker 3: they're claiming Powell lied about.

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Speaker 4: Well, it relates to certain aspects of the renovation that

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Speaker 4: have to do with like VIP dining rooms and the

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Speaker 4: special elevators, and the type of marble that's being used,

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Speaker 4: and the discrepancies between what are in the documents that

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Speaker 4: were submitted to the relevant agencies several years ago versus

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Speaker 4: what Powell testified about in June. And so, you know,

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Speaker 4: more specifically, the accusations are that these details, you know,

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Speaker 4: concerning the marble and the VIP dining room, et cetera,

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Speaker 4: are you know, extravagant and too expensive. And even though

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Speaker 4: those details were in the planning documents, when Powell was

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Speaker 4: asked about them in his testimony, he seemed to suggest

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Speaker 4: that those weren't exactly the types of material that was

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Speaker 4: going to be used or the type of specifications that

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Speaker 4: were going to be included in the project. So it's

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Speaker 4: sort of those discrepancies that the administration was criticizing, and

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Speaker 4: following his testimony to Congress in June, a congresswoman from

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Speaker 4: Florida referred the matter to the Justice Department, you know,

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Speaker 4: sort of along the lines of what the Trump administration

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Speaker 4: had been criticizing.

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Speaker 3: I mean, if everyone who had describedancies in their testimony

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Speaker 3: before Congress was prosecuted, the Justice Department wouldn't have time

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Speaker 3: for much else. These cases are not easy to prove.

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Speaker 3: Where's the materiality and where's the intent?

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Speaker 4: Yeah, I mean, in general, it's hard to prove criminal

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Speaker 4: intent on a matter like this. It seems very unlikely

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Speaker 4: that this is the type of thing that the chairman

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Speaker 4: of the Federal Reserve would intentionally be lying about to Congress.

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Speaker 4: It seems like there's reasonable explanations for the discrepancies, including

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Speaker 4: what Powell has explained and what the Federal Reserve itself

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Speaker 4: posted on its website in a FAQ after his testimony,

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Speaker 4: and that is that the Federal Reserve is allowed to

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Speaker 4: make modest modifications to what was in the planning documents.

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Speaker 4: And so that's really what's happening here. And so there

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Speaker 4: really isn't, you know, any material discrepancy between what Powell

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Speaker 4: said and his testimony and what's in the planning documents.

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Speaker 4: Certainly nothing that would rise to a criminal offense. And

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Speaker 4: I think that's, you know, in part why you're seeing

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Speaker 4: even Republican senators and congressman pushing back on the news

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Speaker 4: of the subpoena, saying, you know, this is too much,

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Speaker 4: and you know we value an independent FED and we

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Speaker 4: want to see this issue resolved quickly. And Senator Tom

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Speaker 4: Tillis in particular noted, and he's on the Senate Banking Committee,

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Speaker 4: who will oversee the nominations and confirmations of whoever Trump

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Speaker 4: names to replace Stephen Myron with the anticipation of that

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Speaker 4: person becoming the Chair of the FED when Chairman Powell's

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Speaker 4: term ends in May. We're seeing Senator Tillis saying, look,

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Speaker 4: I'm going to be reluctant to push forward any nomination,

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Speaker 4: certainly not going to confirm anyone until this investigation is resolved.

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Speaker 3: With Tillis's and some other Republican senator's opposition, this could

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Speaker 3: backfire on Trump. It could also backfire because it could

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Speaker 3: give Powell motivation to stay on as if we had

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Speaker 3: governor after his term as chair expires in May.

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Speaker 1: Yeah.

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Speaker 4: No, I think that's exactly read. I think there's a

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Speaker 4: number of unintended consequences that could backfire in the Trump administration.

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Speaker 1: Here.

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Speaker 4: You named a couple of them. One is the nomination

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Speaker 4: process could be stalled. Another is, like you said, it

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Speaker 4: could motivate Powell to stay on as a governor even

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Speaker 4: after his term as chair ends. There's been a question

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Speaker 4: about what he intends to do.

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Speaker 1: You know.

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Speaker 4: Traditionally chairs, you know, resigned from the board after their

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Speaker 4: term as chair ends and they don't stay on as governor.

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Speaker 4: But you know, in an effort to maintain FED independence,

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Speaker 4: this may motivate him to stay on. And then don't

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Speaker 4: forget next week on January twenty, first, we have argument

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Speaker 4: in the Supreme Court in at LIASA. Cookcase. You know,

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Speaker 4: the Supreme Court is not completely isolated from you know,

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Speaker 4: news headlines, and they may see this as yet another

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Speaker 4: effort to get rid of FED independence. And we've already

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Speaker 4: seen comments from Justice Kavanaugh recently in the FTC Slaughter

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Speaker 4: case suggesting that he was very concerned about FED independence.

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Speaker 4: So to the extent the Supreme Court is already leaning

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Speaker 4: towards the ruling in Lisa Cook's favor that would support

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Speaker 4: FED independence and make it harder for the President to

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Speaker 4: get rid of FED governors. This news, this subpoena may

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Speaker 4: motivate the Supreme Court to write an opinion that actually

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Speaker 4: makes it harder for the president to fire a Federal

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Speaker 4: Reserve Board governor without you know, real cause.

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Speaker 3: Has President Trump been attacking the independence of the FED

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Speaker 3: since the beginning of his term? Is it something new?

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Speaker 4: I'm pretty sure this has been going on since his

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Speaker 4: term started, maybe even before, where he's been criticizing Tarmn Powell.

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Speaker 4: But I mean the broader context is, you know that

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Speaker 4: one of the hallmarks of this administration has been, you know,

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Speaker 4: this unitary executive theory, where the president aims to establish

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Speaker 4: and maintain complete control over the executive brand. And you know,

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Speaker 4: we see that in obviously many many respects, but in

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Speaker 4: particular we've seen it with the firing of commissioners of

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Speaker 4: independent agencies like the FTC, which I mentioned earlier, and

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Speaker 4: the President has tried to extend that to the Federal Reserve.

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Speaker 4: But the Supreme Court, you know, a couple times now,

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Speaker 4: in particular in a ruling last May and then in

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Speaker 4: the argument in the Slaughter case last month, has indicated

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Speaker 4: that the FED is a little bit different. It's a

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Speaker 4: plasi private entity. It's not like other federal agencies. And

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Speaker 4: as a result, this theory of the unitary executive advance

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Speaker 4: may only go so far.

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Speaker 3: What also doesn't make much sense to me is if

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Speaker 3: they start this investigation now and take it to a

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Speaker 3: grand jury, and let's say a grand jury does return

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Speaker 3: with it some kind of indictment. I mean, this would

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Speaker 3: take years to prosecute and go through the appellate courts.

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Speaker 3: Trump might be out of office before the case is over.

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Speaker 4: That's exactly right. I mean I think the trial itself,

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Speaker 4: you know, could move relatively quickly. Criminal cases move relatively quickly.

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Speaker 4: But yeah, if there is an indictment, this is going

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Speaker 4: to drag on past, certainly past May, which is when

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Speaker 4: terror Powell's term as chairman ends. And so you know,

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Speaker 4: to the extent Tom Tillis is serious about stalling the

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Speaker 4: nomination and confirmation process of anybody who is named to

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Speaker 4: replace Tairman Powell's chair you know, we could be in limbo.

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Speaker 3: Whenever I hear about perjury cases, I always think about

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Speaker 3: the Barry Bonds case, which had a lot of unique circumstances,

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Speaker 3: but still it took seven years and his conviction was

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Speaker 3: eventually reversed.

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Speaker 4: You know, I always tell clients don't take the under

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Speaker 4: and if you're betting in terms of how long a

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Speaker 4: litigation takes.

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Speaker 3: It almost always takes longer than you think. Thanks so

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Speaker 3: much for joining me, Elliott. That's Bloomberg Intelligence Senior litigation analyst,

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Speaker 3: Elliott Stein. I'm June Grass. When you're listening to Bloomberg,

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Speaker 3: a jury has been listening to emotion testimony in the

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Speaker 3: trial of a former Uvalde school's police officer accused of

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Speaker 3: endangering dozens of students during the May twenty fourth, twenty

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Speaker 3: twenty two attack at rob Elementary School.

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Speaker 5: I yelled to the kids to get in the classrooms.

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Speaker 2: The second grade teachers had opened their doors.

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Speaker 1: To let us in.

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Speaker 2: I went to the first classroom and I stood outside

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Speaker 2: the door to make sure everybody had gone off the

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Speaker 2: playgrom It.

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Speaker 3: Was one of the worst school shootings in US history,

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Speaker 3: leaving nineteen students and two teachers dead. Nearly four hundred federal, state,

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Speaker 3: and local officers arrived at the school, but seventy minutes

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Speaker 3: passed before a tactical team finally breached the room and

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Speaker 3: killed the shooter. I kept asking the operator, where are

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Speaker 3: the cops?

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Speaker 4: Where are the cops?

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Speaker 3: The defendant and Adrian Gonzalez was among the first officers

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Speaker 3: to arrive on the scene, but prosecutors argue that he

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Speaker 3: failed to stop or delay the gunman.

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Speaker 6: He gets on the radio and says shots are fire.

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Speaker 6: He's wearing black, he's in the parking part. He knows

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Speaker 6: where he is. But Adrian Gonzalez remains.

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Speaker 3: But the defense says Gonzalez is being scapegoated, arguing that

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Speaker 3: he was one of the first officers to enter the

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Speaker 3: school and that he evacuated children as police arrived.

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Speaker 1: The monster who hurt those children, he's dead.

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Speaker 3: My guest is trial attorney David Ring, a partner at

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Speaker 3: Taylor and Ring. Dave tell us about the charges in

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Speaker 3: the case.

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Speaker 1: The defendant is a former police officer for the Uvaldi

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Speaker 1: School District and he was one of the very first

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Speaker 1: responders to this horrific scene of this school shooting. And

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Speaker 1: he's being criminally charged with twenty nine counts felony counts

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Speaker 1: of abandoning or endangering a child. And what is that about.

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Speaker 1: The prosecution is basically claiming that officer Gonzalez failed to

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Speaker 1: act when he came on the scene. He failed to

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Speaker 1: do what he was trained to do. And the twenty

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Speaker 1: nine counts are for these children that were killed or

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Speaker 1: harmed in this horrific shooting.

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Speaker 3: There were nearly four hundred officers from various agencies involved

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Speaker 3: in some degree to the police response, and they waited

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Speaker 3: more than seventy minutes before a tactical team finally reached

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Speaker 3: the room and killed the shooter. Why is Gonzalez being

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Speaker 3: charged and not any of the hundreds of others.

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Speaker 1: The prosecution's theory as to why Officer Gonzales is being

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Speaker 1: charged is because he was one of the first, if

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Speaker 1: not the first, first officer on the scene, and the

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Speaker 1: prosecution claims that Gonzalez had the opportunity to engage the

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Speaker 1: gunman before he really got to fire off too many shots,

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Speaker 1: and he failed to do so. They can't make that

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Speaker 1: argument about many of the other officers because they obviously

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Speaker 1: arrived later on the scene. The other important part of

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Speaker 1: this prosecution is that the prosecution can argue that Officer

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Speaker 1: Gonzalez had received active shooter training as part of his

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Speaker 1: training as a police officer, and that he knew what

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Speaker 1: he was supposed to do and yet disregarded that training and,

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Speaker 1: according to the prosecution, did really nothing. That's why he's

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Speaker 1: being charged. The other person, whose case has not started

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Speaker 1: yet is the commanding officer, and it's similar counts and

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Speaker 1: dangering children. But basically, the theory against him is that

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Speaker 1: he failed to put in action all the things he

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Speaker 1: was supposed to do to control this scene.

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Speaker 3: So what is Gonzalez's basic defense so far?

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Speaker 1: Gonzalez's defense is that he came onto the scene and

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Speaker 1: he never saw the shooter. He did not know where

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Speaker 1: the shooter was, never saw the shooter. You couldn't engage

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Speaker 1: the shooter if you didn't know where he was. He

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Speaker 1: also says he actually did things. He helped kids evacuate

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Speaker 1: from the school from a different part of the building,

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Speaker 1: and then at some point, he says, when other officers arrived,

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Speaker 1: he was being fired upon, or at least there were

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Speaker 1: bullets flying from some location that would put his life

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Speaker 1: in danger if he tried to engage the shooter. So

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Speaker 1: he's got several defenses to these criminal charges that, if

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Speaker 1: believed by the jury, should exonerate him.

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Speaker 3: Yeah, I'm just wondering how the jury weighs the effect

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Speaker 3: of them the officers waiting seventy minutes, how that sort

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Speaker 3: of weighs in here with his guilt.

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Speaker 1: It's really difficult. Like you said, there are four hundred

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Speaker 1: officers eventually at this scene, and really one of them

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Speaker 1: is being singled out for not doing his job. This

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Speaker 1: is a very very unique type of prosecution. You rarely

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Speaker 1: see this type of prosecution of a police officer, and

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Speaker 1: the reason it's unique. Most of the times when you

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Speaker 1: see a criminal case involving a police officer, it's because

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Speaker 1: they did something actively wrong. They used excessive force and

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Speaker 1: shot and killed someone, or they used excessive violence to

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Speaker 1: harm someone. They actually did something that was criminal. Here,

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Speaker 1: the argument is he did nothing. It's an omission, not

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Speaker 1: an act, and that is a very very difficult crime

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Speaker 1: to prove against a police officer. There have only been

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Speaker 1: a handful of these prosecutions accusing an officer of not

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Speaker 1: doing something, and none of them have been successful.

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Speaker 3: The evidence that the prosecution has been present photos of

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Speaker 3: the scene and the damage left behind that the judge

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Speaker 3: warned were gruesome and shocking. You have witness testimony from

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Speaker 3: former teachers who were sheltered in classrooms, parents of children

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Speaker 3: who lost their lives, forensic experts about weapons and ammunition.

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Speaker 3: So the prosecution is showing this nightmare scenario, this devastating shooting,

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Speaker 3: but so far it doesn't seem to be showing what

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Speaker 3: the defendant dealer didn't do.

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Speaker 1: Look, the prosecution is putting on a case that is

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Speaker 1: they're laying out this horrific, horrific scene, tragedy, horrible photos.

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Speaker 1: So when you hear what's what happened in the number

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Speaker 1: of rounds that were fired by this gunman and all

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Speaker 1: the things that he did, and testimony from the parents

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Speaker 1: and teachers who survived, it's horrific. But so far, not

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Speaker 1: a lot of evidence against Officer Gonzales. And there's been

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Speaker 1: a very very crucial ruling because one of the key

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Speaker 1: issues in this case is that a witness is going

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Speaker 1: to have to place Officer Gonzalez on the south side

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Speaker 1: of this school building early on, because that's where the

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Speaker 1: shooter entered from. And if there's no one, no witnesses

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Speaker 1: that can place him on the south side, then he's

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Speaker 1: going to successfully argue I never saw the shooter. Well

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Speaker 1: early in this trial, a teacher testified that she in

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Speaker 1: fact saw Gonzalez on the south side of the building

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Speaker 1: very very early on. The problem with that was that

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Speaker 1: that was the very first time she had ever told

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Speaker 1: anyone that she had told prosecutors years ago that she

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Speaker 1: never saw officer Gonzalez anywhere, and so when she testified

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Speaker 1: to that at trial, that made the defense bring a

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Speaker 1: mistrial motion because they basically got sandbagged by that testimony.

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Speaker 1: That was something the prosecution had to share with the

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Speaker 1: defense because it is such crucial testimony. And the first

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Speaker 1: time it ever came out was when she was on

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Speaker 1: the witness stand. And so what did the judge do.

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Speaker 1: He didn't grant a mistrial, but he struck this witness's

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Speaker 1: testimony in its entirety. And what does that mean. That

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Speaker 1: means like it never happened. And so she was one

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Speaker 1: of the very few witnesses that would place Officer Gonzalez

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Speaker 1: on the south side of the building. And now her

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Speaker 1: testimony has been stricken. It's a major blow for the prosecution.

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Speaker 3: The judge told the jury to disregard her testimony. That's

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Speaker 3: sort of like unringing the bell. How do they disregard it?

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Speaker 1: It's true, it is unringing the bell. But it happens

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Speaker 1: in every trial where a judge says, you know, someone

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Speaker 1: testified to something improperly or incorrectly, and I'm telling you

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Speaker 1: you are to disregard it. If the jurors follow the law.

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Speaker 1: When they're in deliberations, they are not allowed to discuss

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Speaker 1: that testimony at all. Juris follow the law, and so

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Speaker 1: they're going to be back in the jury room. They're

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Speaker 1: going to say there wasn't a single witness who placed

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Speaker 1: Officer in Gonzales on the south side of the building

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Speaker 1: where the shooter was. And if someone says, well, this

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Speaker 1: teacher did, they say, well, we can't consider that, so

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Speaker 1: therefore there's no evidence of that. So that's how it

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Speaker 1: plays out. And the other way it plays out is

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Speaker 1: if he is convicted and it goes to the court

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Speaker 1: of appeal, that will be a very significant issue.

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Speaker 3: The way for us, the benefits and disadvantages of having

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Speaker 3: him testify.

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Speaker 1: It's going to be very interesting if Officer Gonzalez testifies.

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Speaker 1: You know, the prose of him testifying is that he

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Speaker 1: takes the witness stand and he can explain his actions

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Speaker 1: to the jury. He can tell them I arrived on

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Speaker 1: the scene, and I did this, and I did that,

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Speaker 1: and I helped kids evacuate, and I didn't know where

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Speaker 1: the shooter was. And I was never on the south side,

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Speaker 1: and I never saw the shooter. I didn't know where

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Speaker 1: he was. I didn't know where the bullets were coming from.

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Speaker 1: And that's powerful testimony coming from him. And if he's

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Speaker 1: a likable person, a sympathetic person, he gets to talk

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Speaker 1: about his career in law enforcement, it makes it very

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Speaker 1: difficult for a jury to convict him and put all

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Speaker 1: the blame on him. So that's the pro for him

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Speaker 1: taking the stand and testifying. I mean, obviously the downside

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Speaker 1: is any time a criminal defendant takes the stand, they're

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Speaker 1: open to cross examination and cross examination that the prosecution

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Speaker 1: can really go after him on his training and his

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Speaker 1: failure to follow his training and all the things we've

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Speaker 1: discussed about what their theories are.

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Speaker 3: Do you think the defense will try to present the

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Speaker 3: picture that we discussed about all these officers waiting more

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Speaker 3: than seventy minutes before they entered the building and what

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Speaker 3: effect that had.

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Speaker 1: I mean, that's obviously been part of the trial. But

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Speaker 1: I also think that the defense is really going to

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Speaker 1: hone in on because it is undisputed that officer Gonzalez

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Speaker 1: was one of the first to the scene. So I

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Speaker 1: think the defense will really focus in on one, he

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Speaker 1: did not know where the shooter was. Two, he was

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Speaker 1: not just sitting around doing nothing. He was helping children

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Speaker 1: escape the school from a different location, and three bullets

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Speaker 1: were flying. He didn't know where they were coming from.

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Speaker 1: And if he tried to enter the school and tried

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Speaker 1: to engage the shooter, not knowing where he was all

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Speaker 1: by himself, he probably would have ended up killed.

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Speaker 3: Is this the kind of case that usually is not

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Speaker 3: prosecuted criminally but where we see civil actions for damages?

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Speaker 1: Very very rare you see this type of case prosecuted

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Speaker 1: criminally because, as we discuss, it's an O mission to act,

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Speaker 1: and so you very very rarely see that on the

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Speaker 1: civil side of things. I mean, not to get too

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Speaker 1: deep into the weeds. The problem with that is that

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Speaker 1: the law doesn't allow individuals to sue police officers of

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Speaker 1: law enforcement for not doing a perfect job. Otherwise, every

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Speaker 1: time there was a crime and the crime wasn't solved

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Speaker 1: or the investigation wasn't done perfectly, there'd be a lawsuit

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Speaker 1: against a police officer like, hey, you should have done this,

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Speaker 1: you should have done that, And we a society don't

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Speaker 1: want that. That's not efficient or effective, and so it'd

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Speaker 1: be very difficult for a civil case to survive against

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Speaker 1: officer Gonzalez.

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Speaker 3: Thanks so much for joining me. Dave that's trial attorney

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Speaker 3: David Ring of Tailor and Ring this is Bloomberg. A

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Speaker 3: Trump appointed judge has ordered Lindsay Halligan to explain why

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Speaker 3: she's continuing to call herself the US attorney for the

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Speaker 3: Eastern District of Virginia, even though another judge found in

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Speaker 3: November that she'd been illegally appointed to the position. That

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Speaker 3: November finding led to the dismissal of cases against former

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Speaker 3: FBI Director James Comy and New York Attorney General Letitia James.

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Speaker 3: Judge David Novak's order on Tuesday gave Halligan seven days

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Speaker 3: to file a pleading that justifies why the court shouldn't

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Speaker 3: strike her title from indictments and explain why her identification

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Speaker 3: does not constitute a false or misleading statement. The order

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Speaker 3: came in the case of a man indicted last month

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Speaker 3: on charges of carjacking and attempted bank robbery. The judge

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Speaker 3: noted that his order was on his own initiative, rather

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Speaker 3: than in response to any motion by litigants in the case,

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Speaker 3: and on a side note, the second highest ranking federal

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Speaker 3: prosecutor in the Eastern District of Virginia was fired today

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Speaker 3: after he reportedly refused to help lead the department's prosecution

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Speaker 3: of Komy. My guest is constitutional law expert Harold Krant,

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Speaker 3: a professor at the SHO Chicago Kent College of Law.

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Speaker 5: Yes, so, Mintya Halligan has been deemed to be unlawfully

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Speaker 5: appointed because the President hasn't followed Congress's diagram or activity

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Speaker 5: in the Appointments Act, and so the President decided not

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Speaker 5: to seek Senate confirmation for a number of posts. There

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Speaker 5: have been five interim US attorneys who's been appointed by

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Speaker 5: President Trump who's been found disqualified simply because the President

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Speaker 5: has decided not to follow the statute and not to

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Speaker 5: present the name of the candidate to the Senate for ratification. Now,

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Speaker 5: in this case, after the judge has found her to

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Speaker 5: be improperly appointed, she just decided to stay on pending appeal.

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Speaker 5: So she made her own decision that it was okay

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Speaker 5: for her to continue.

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Speaker 3: Acting even though there was an orders.

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Speaker 5: For founding that she had been disqualified. So another judge

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Speaker 5: is contesting that, and basically they were saying, is you

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Speaker 5: should have stepped away while the appeal was pending and

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Speaker 5: to see if you could be reinstated or not.

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Speaker 3: How unusual is it for a judge to issue an

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Speaker 3: order like this on his or her own In other words,

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Speaker 3: there was no defendant here asking him to issue this order.

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Speaker 5: Well, what's interesting is that she has been seeking activities

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Speaker 5: that can only be done by a US attorney, And

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Speaker 5: so what the judge is saying, which is similar to

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Speaker 5: what a judge that in New York in a different case.

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Speaker 5: I'm sure we'll turn to in Letitia James case, you know,

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Speaker 5: said is you have no authority to take this particular action,

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Speaker 5: whether it's a tax action, it's indictment, or something else,

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Speaker 5: because you're not the official US attorney, and therefore you

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Speaker 5: may be making a false statement and subject to either

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Speaker 5: a federal violation or to contempt a court because you

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Speaker 5: are basically lying to the court by affirming that you

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Speaker 5: have the authority to take the action that you did.

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Speaker 3: He also alluded to the possibility that she could be

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Speaker 3: disbarred from practicing in that jurisdiction.

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Speaker 5: Yeah, because if she's making false statements to the court,

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Speaker 5: that is a reason for disbarment, and the bar Association,

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Speaker 5: if it's refer to case, we'll have to take that

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Speaker 5: under its advisement.

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Speaker 3: The judge Novak ordered that Halligan sign her response, and

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Speaker 3: that sort of goes towards this growing trend of federal

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Speaker 3: judges doubting whether the Justice Departments in court statements can

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Speaker 3: be trusted. I mean, we had the judge in Chicago

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Speaker 3: in the case over the use of the National Guard

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Speaker 3: there accused the Trump administration of making false statements in court.

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Speaker 3: The judges just don't know that they can believe what said.

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Speaker 5: Yeah, I mean, obviously judge also looked at tape information

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Speaker 5: at testimony basically found the testimony of the border patrol

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Speaker 5: to be simply not credible in light of all the

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Speaker 5: other evidences introduced. I'm afraid that's just said. The same

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Speaker 5: thing in the Minnesota shooting is that there's going to

439
00:26:51,960 --> 00:26:54,840
Speaker 5: be false statements that just are inconsistent with all the

440
00:26:54,920 --> 00:26:57,560
Speaker 5: video footage about what really happened in that case.

441
00:26:58,040 --> 00:27:01,760
Speaker 3: Turn to Letitia James for moment. What's happening there.

442
00:27:01,880 --> 00:27:05,080
Speaker 5: Well, the President simply is using the Justice Department to

443
00:27:05,160 --> 00:27:08,080
Speaker 5: try to fare it out wrongdoing against his political enemies.

444
00:27:08,240 --> 00:27:10,680
Speaker 5: This is the oldest sort of trick of a kind

445
00:27:10,720 --> 00:27:14,000
Speaker 5: of you know, autocratic ruler is using what he can

446
00:27:14,119 --> 00:27:17,440
Speaker 5: to sort of take revenge upon individuals who he perceived

447
00:27:17,600 --> 00:27:20,919
Speaker 5: has wronged him. Obviously, the Tisha James foiled that huge

448
00:27:21,119 --> 00:27:23,720
Speaker 5: civil lawsuit against him as Attorney General of New York,

449
00:27:24,160 --> 00:27:26,760
Speaker 5: and he first tried to get her on mortgage fraud

450
00:27:27,040 --> 00:27:30,760
Speaker 5: that was thrown out, and now he's continuing an investigation.

451
00:27:31,040 --> 00:27:36,119
Speaker 5: This investigation goes back to twenty eighteen and is inquiring

452
00:27:36,160 --> 00:27:40,640
Speaker 5: whether or not she improperly used campaign funds to stiphen

453
00:27:40,680 --> 00:27:43,720
Speaker 5: them off to her hairdresser, who evidently was helping her

454
00:27:44,000 --> 00:27:46,560
Speaker 5: in the campaign. You know, who knows what happened in

455
00:27:46,600 --> 00:27:49,960
Speaker 5: twenty eighteen, But for the Justice Department to get involved

456
00:27:49,960 --> 00:27:54,200
Speaker 5: in something almost eight years ago is just written all

457
00:27:54,200 --> 00:27:54,560
Speaker 5: over it.

458
00:27:54,680 --> 00:27:55,240
Speaker 1: Just vengeance.

459
00:27:55,280 --> 00:27:57,600
Speaker 5: They're just scouring the record to see how they can

460
00:27:57,640 --> 00:28:01,160
Speaker 5: make life miserable for Letitia James. And so that's what's

461
00:28:01,200 --> 00:28:03,960
Speaker 5: transpiring at the moment in her case.

462
00:28:04,560 --> 00:28:07,040
Speaker 3: And that's a prosecutor in Northern New York.

463
00:28:07,600 --> 00:28:10,320
Speaker 5: It's used to train John Starcne and in that case

464
00:28:10,920 --> 00:28:13,480
Speaker 5: he's an interim. In that case, the court found that

465
00:28:13,840 --> 00:28:17,760
Speaker 5: John Starcone, like Lindsay Halligan, like others, improperly stayed in

466
00:28:17,840 --> 00:28:20,879
Speaker 5: office passed the time allotted to him under the vacancies

467
00:28:20,920 --> 00:28:26,160
Speaker 5: Act and therefore is inappropriate and should not be involved

468
00:28:26,160 --> 00:28:30,320
Speaker 5: in any kind of power that is required of a

469
00:28:30,359 --> 00:28:34,359
Speaker 5: head prosecutor. In another case, she threw out his peanut

470
00:28:34,400 --> 00:28:37,760
Speaker 5: for tax information that he signs, saying you're not legitimate.

471
00:28:37,920 --> 00:28:43,560
Speaker 5: And therefore that is the fifth again fight between a

472
00:28:43,560 --> 00:28:46,400
Speaker 5: acting you as attorney and the courts simply on the

473
00:28:46,400 --> 00:28:50,480
Speaker 5: basis that they're not properly appointed to their jobs because

474
00:28:50,480 --> 00:28:53,320
Speaker 5: the presidents refused to go before the Senate for no

475
00:28:53,440 --> 00:28:54,720
Speaker 5: reason that I can understand.

476
00:28:55,160 --> 00:28:58,560
Speaker 3: So there are several cases you mentioned. Judge in California

477
00:28:58,800 --> 00:29:02,920
Speaker 3: ruled in October at the US Attorney there Bill as

478
00:29:03,000 --> 00:29:07,160
Speaker 3: Sale couldn't serve as the acting US Attorney in Los Angeles,

479
00:29:07,240 --> 00:29:11,280
Speaker 3: but allowed him to keep supervising the Federal Prosecutor's office,

480
00:29:11,680 --> 00:29:15,440
Speaker 3: but without the acting US Attorney title. So why do that?

481
00:29:15,640 --> 00:29:18,840
Speaker 3: Why not? You know, if you make a decision, enforce it.

482
00:29:19,320 --> 00:29:19,520
Speaker 1: Well.

483
00:29:19,560 --> 00:29:22,360
Speaker 5: I think the trick here is that there are certain

484
00:29:22,400 --> 00:29:26,400
Speaker 5: things by statute that only a US Attorney or someone

485
00:29:26,440 --> 00:29:29,200
Speaker 5: in that position can do, such as the tax returney

486
00:29:29,200 --> 00:29:31,680
Speaker 5: that we discussed earlier. Courts can fudge it if they

487
00:29:31,720 --> 00:29:34,400
Speaker 5: want to say, well, you can serve as a prosecutor

488
00:29:34,520 --> 00:29:36,920
Speaker 5: and you could actually help in the office. You just

489
00:29:36,960 --> 00:29:41,560
Speaker 5: can't take certain responsibilities that Congress has allocated only to

490
00:29:41,720 --> 00:29:44,320
Speaker 5: the top official. So that's sort of a compromise that

491
00:29:44,440 --> 00:29:47,040
Speaker 5: some courts have taken. You know, in each case there's

492
00:29:47,040 --> 00:29:50,440
Speaker 5: a little bit of confusion, there's little pandemonium chaos in

493
00:29:50,480 --> 00:29:53,240
Speaker 5: the offices. But again, all that has to be clarified

494
00:29:53,320 --> 00:29:55,120
Speaker 5: is the president can submit the name to the Senate

495
00:29:55,120 --> 00:29:55,840
Speaker 5: for ratification.

496
00:29:56,560 --> 00:30:00,600
Speaker 3: And in the case of the new Jersey US attorney

497
00:30:00,600 --> 00:30:04,400
Speaker 3: who Trump appointed his former personal attorney, Alina Habba, the

498
00:30:04,480 --> 00:30:08,320
Speaker 3: Third Circuit, they are ruled that that was not legal

499
00:30:08,480 --> 00:30:11,560
Speaker 3: and she resigned, But there's still no one in that position.

500
00:30:12,080 --> 00:30:18,160
Speaker 3: I mean, all these instances, doesn't this open up prosecutions

501
00:30:18,280 --> 00:30:22,720
Speaker 3: and you know, grand jury indictments to challenges by the defense.

502
00:30:22,840 --> 00:30:26,680
Speaker 3: I mean, the Trump administration is preferring to keep these

503
00:30:26,720 --> 00:30:31,320
Speaker 3: people in rather than to have solid prosecutions.

504
00:30:31,320 --> 00:30:35,400
Speaker 5: It seems to me, Yeah, it's undermining the rule of

505
00:30:35,440 --> 00:30:39,920
Speaker 5: the opposites. It's undermining potential prosecutions, and as far as

506
00:30:39,960 --> 00:30:42,280
Speaker 5: I can see, for no reason other than stubbliness, and

507
00:30:42,400 --> 00:30:45,760
Speaker 5: it's just not doing a favor to the criminal justice system.

508
00:30:46,400 --> 00:30:49,080
Speaker 3: And on the other side of the Ledger sort of

509
00:30:49,480 --> 00:30:51,920
Speaker 3: we have the Trump administration trying to get people out

510
00:30:51,920 --> 00:30:55,120
Speaker 3: of their positions, and so, you know, it was revealed

511
00:30:55,200 --> 00:30:59,000
Speaker 3: that subpoenas were issued to FED shared Jr. Own Powell.

512
00:30:59,320 --> 00:31:01,680
Speaker 3: And I'm one wondering, you know, how much of this

513
00:31:02,000 --> 00:31:05,800
Speaker 3: is because the Supreme Court has refused to draw a

514
00:31:05,880 --> 00:31:12,120
Speaker 3: line about Trump firing people, and even the presidential Immunity

515
00:31:12,160 --> 00:31:15,560
Speaker 3: decision gives him so much leeway that how much of

516
00:31:15,600 --> 00:31:18,840
Speaker 3: this can be blamed on Supreme Court.

517
00:31:19,440 --> 00:31:22,160
Speaker 5: I don't think entirely, because the Supreme Court twice at

518
00:31:22,240 --> 00:31:24,400
Speaker 5: least in dicta have said that the FED is different,

519
00:31:24,400 --> 00:31:26,680
Speaker 5: that they're going to sort of signaling that there's going

520
00:31:26,760 --> 00:31:29,200
Speaker 5: to be a carve out for the FED to keep

521
00:31:29,240 --> 00:31:32,120
Speaker 5: its independency. I think this is more sort of a

522
00:31:32,120 --> 00:31:35,600
Speaker 5: petty vindictiveness on the part of the administration because your

523
00:31:35,600 --> 00:31:38,320
Speaker 5: own pile hasn't count out to what the President wants

524
00:31:38,360 --> 00:31:40,440
Speaker 5: him to do, so he's going to use the power

525
00:31:40,480 --> 00:31:43,160
Speaker 5: of the office to sort of make life miserable for Powell.

526
00:31:43,560 --> 00:31:46,080
Speaker 5: And you know it's silly, is his term as chair

527
00:31:46,160 --> 00:31:48,440
Speaker 5: is up in within a matter of months. But nonetheless,

528
00:31:48,640 --> 00:31:51,560
Speaker 5: the President is you know, sort of continuing to hound

529
00:31:51,640 --> 00:31:55,360
Speaker 5: him through these subpoenas, and even some publican centers say,

530
00:31:55,640 --> 00:31:57,640
Speaker 5: why are you doing this? This is going to upset

531
00:31:57,680 --> 00:31:59,680
Speaker 5: the stability of our financial system.

532
00:32:00,000 --> 00:32:04,040
Speaker 3: The Justice Department under Trump, in many instances, has struggled

533
00:32:04,080 --> 00:32:08,080
Speaker 3: to get prosecutions off the ground, even at times having

534
00:32:08,160 --> 00:32:11,880
Speaker 3: grand jury say no. And there's that old saying that

535
00:32:11,920 --> 00:32:13,880
Speaker 3: we all know that a grand jury will and die

536
00:32:13,920 --> 00:32:17,600
Speaker 3: to ham Sandwich, but apparently not. I'm wondering about the

537
00:32:17,720 --> 00:32:22,840
Speaker 3: level the quality of prosecutors now at the Justice Department,

538
00:32:23,440 --> 00:32:26,120
Speaker 3: whether it's you know, the quality or they're just afraid

539
00:32:26,160 --> 00:32:28,080
Speaker 3: to do their to do what they have to do.

540
00:32:29,000 --> 00:32:29,040
Speaker 1: No.

541
00:32:29,760 --> 00:32:34,040
Speaker 5: Everybody who I think is witnessing what's happening to the

542
00:32:34,120 --> 00:32:36,640
Speaker 5: justice part, I think there's been a huge hit on

543
00:32:36,840 --> 00:32:40,320
Speaker 5: the quality and the talent and the attitude of people

544
00:32:40,320 --> 00:32:43,320
Speaker 5: who are still there. And so if you put those

545
00:32:43,560 --> 00:32:46,120
Speaker 5: factors together, you're not going to be as effective as

546
00:32:46,160 --> 00:32:49,320
Speaker 5: a prosecutor. And because of that, you know, we're going

547
00:32:49,320 --> 00:32:52,320
Speaker 5: to see sort of a hit to some of the

548
00:32:52,320 --> 00:32:55,960
Speaker 5: criminal prosecution efforts by the Justice Department all around the

549
00:32:55,960 --> 00:33:02,320
Speaker 5: country because again morale, lack of personnel, because of personal frictions,

550
00:33:02,360 --> 00:33:04,880
Speaker 5: and because of the loss of faith in the court system.

551
00:33:05,240 --> 00:33:07,520
Speaker 5: You put all that together, and you know this is

552
00:33:07,560 --> 00:33:09,400
Speaker 5: going to be a heyday for defense players.

553
00:33:09,560 --> 00:33:12,520
Speaker 3: Thanks so much, Hal. That's Professor Harold Krent of the

554
00:33:12,640 --> 00:33:16,200
Speaker 3: Chicago Kent College of Law. And that's it for this

555
00:33:16,360 --> 00:33:19,120
Speaker 3: edition of The Bloomberg Law Show. Remember you can always

556
00:33:19,120 --> 00:33:22,080
Speaker 3: get the latest legal news on our Bloomberg Law podcasts.

557
00:33:22,320 --> 00:33:25,320
Speaker 3: You can find them on Apple Podcasts, Spotify, and at

558
00:33:25,480 --> 00:33:30,520
Speaker 3: www dot bloomberg dot com, slash podcast Slash Law, and

559
00:33:30,600 --> 00:33:33,680
Speaker 3: remember to tune into The Bloomberg Law Show every weeknight

560
00:33:33,760 --> 00:33:37,200
Speaker 3: at ten pm Wall Street Time. I'm June Grosso and

561
00:33:37,240 --> 00:33:38,720
Speaker 3: you're listening to Bloomberg