WEBVTT - Real Setback for Special Counsel John Durham 0:00:03.160 --> 0:00:07.960 This is Bloombird Law with June Brusso from Bloombird Radio. 0:00:09.200 --> 0:00:11.959 The entire thing has been a witch hunt and there 0:00:12.039 --> 0:00:16.520 is no collusion between certainly myself and my campaign. But 0:00:16.640 --> 0:00:19.800 I can always speak for myself and the Russians zero. 0:00:21.280 --> 0:00:26.000 This is a pure and simple witch hunt. This is 0:00:26.000 --> 0:00:29.040 a political witch hunt, Calisa, which nobody's that are seen 0:00:29.120 --> 0:00:32.920 towards a pure witch hunt. It's a hoax. It's a 0:00:32.960 --> 0:00:35.880 disgraceful situation. It's a total witch hunt. I've been saying 0:00:35.880 --> 0:00:39.199 it for a long time. Former President Donald Trump has 0:00:39.280 --> 0:00:43.680 repeatedly called the Russia investigation a witch hunt, a hoax, 0:00:44.159 --> 0:00:48.159 a deep state conspiracy to frame him, and Special counsel 0:00:48.280 --> 0:00:53.320 John Durham was tasked with uncovering government misconduct during that investigation, 0:00:53.680 --> 0:00:58.560 But after three years of investigating the investigation, Durham's only 0:00:58.600 --> 0:01:02.200 case to go to trial was prosecution of Michael Sussman, 0:01:02.280 --> 0:01:06.440 a lawyer for Hillary Clinton's twenty sixteen presidential campaign, on 0:01:06.520 --> 0:01:10.520 a single charge of lying to the FBI lying not 0:01:10.640 --> 0:01:14.280 about a conspiracy, but about the identity of his clients 0:01:14.280 --> 0:01:18.000 when he passed a tip on in September of and 0:01:18.160 --> 0:01:21.720 after about six hours of deliberations. The jury found the 0:01:21.800 --> 0:01:26.559 prosecution hadn't proved its case and acquitted Sessman. I told 0:01:26.560 --> 0:01:29.720 the truth to the FBI, and the jury wreck clearly 0:01:29.720 --> 0:01:33.120 recognized that with their unanimous verdict. My guest his former 0:01:33.160 --> 0:01:37.680 federal prosecutor Robert Mintz, a partner McCarter and English. This 0:01:37.800 --> 0:01:42.920 was Durham's first major courtroom test after a three year investigation. 0:01:43.160 --> 0:01:45.840 How big a setback is this for him? Well, it's 0:01:45.840 --> 0:01:48.800 a huge setback for Special Counsel John Durham because this 0:01:48.880 --> 0:01:52.280 is the very first case that's gone to trial after 0:01:52.600 --> 0:01:56.440 three years of investigating whether federal agents who investigated the 0:01:56.480 --> 0:02:00.600 twenty steen Trump campaign committed any wrongdoing. So this sense, 0:02:00.760 --> 0:02:04.040 the Special Counsel's office had really put everything on the 0:02:04.160 --> 0:02:07.520 line in this case, even though it ultimately was a 0:02:07.560 --> 0:02:11.040 fairly simple case which charged a single count A lying 0:02:11.080 --> 0:02:13.880 to the FBI. So in a meeting with the General 0:02:13.919 --> 0:02:18.000 Council of the FBI, Sussman presented research that he said 0:02:18.040 --> 0:02:23.040 suggested a possible secret back channel of communications between computer 0:02:23.160 --> 0:02:27.480 service for Russia based Alpha Bank and the Trump organization. 0:02:27.760 --> 0:02:31.320 But that wasn't what the issue was here. The jurors had, 0:02:31.360 --> 0:02:34.880 as you mentioned, this really narrow issue to decide one 0:02:34.960 --> 0:02:38.360 false statement, tell us what that was. Sure, So the 0:02:38.400 --> 0:02:41.840 whole case turned on the simple question of whether or 0:02:41.840 --> 0:02:44.200 not Sussman when he came to the FBI had the 0:02:44.280 --> 0:02:47.400 single meeting with the General Council of the FBI, whether 0:02:47.440 --> 0:02:51.119 she was there in his individual capacity as an individual 0:02:51.200 --> 0:02:55.440 citizen giving information to the FBI that affected potential national 0:02:55.440 --> 0:02:58.000 security issues, or whether he was there on behalf of 0:02:58.040 --> 0:03:01.400 a client. Now, what the defense argue it ultimately successfully 0:03:01.639 --> 0:03:04.840 was that it didn't really matter because the FBI would 0:03:04.840 --> 0:03:07.200 have done the same thing had they known that he 0:03:07.280 --> 0:03:10.440 was there on behalf of the Clinton campaign. And ultimately 0:03:10.520 --> 0:03:13.639 FBI did investigate the information and find out that it 0:03:13.680 --> 0:03:16.160 was without basis, but Sussman said he was there at 0:03:16.160 --> 0:03:19.120 his individual capacity even though he was working for the 0:03:19.160 --> 0:03:21.960 Clinton campaign at the time. On the defense also argued 0:03:22.040 --> 0:03:24.040 that it was well known that Sussman had worked for 0:03:24.120 --> 0:03:27.720 Democratic organizations and for the Democratic Party, and so the 0:03:27.720 --> 0:03:30.560 fact that he was tied to the Democrats was well 0:03:30.600 --> 0:03:33.520 known to the FBI at the time they received the information, 0:03:33.680 --> 0:03:36.040 So whether he was actually acting on their behalf at 0:03:36.080 --> 0:03:39.400 that moment didn't have a material impact on how the 0:03:39.480 --> 0:03:42.400 FBI treated that information. You will go back to that 0:03:42.480 --> 0:03:45.560 materiality in a moment. But the case depended on the 0:03:45.600 --> 0:03:49.960 testimony of one witness, James Baker, who was the FBI's 0:03:50.080 --> 0:03:53.800 general counsel, when he met with Sussman alone, and he 0:03:53.920 --> 0:03:56.800 took no notes of that meeting, so he had some 0:03:56.840 --> 0:04:01.000 credibility problems that the defense brought out. But that's exactly right, 0:04:01.040 --> 0:04:02.440 and I think that was one of the reasons this 0:04:02.520 --> 0:04:05.040 was a very difficult case from the start, because it's 0:04:05.040 --> 0:04:07.760 really one person's word against the other as to what 0:04:07.880 --> 0:04:10.680 happened at that meeting. And as you mentioned, James Baker 0:04:10.720 --> 0:04:13.680 that did not take notes. So although his testimony was 0:04:13.720 --> 0:04:17.080 he was ad percent confident that Sussman insisted to him 0:04:17.080 --> 0:04:19.200 that he was not acting on behalf of a client, 0:04:19.600 --> 0:04:21.240 and that if he had known he was acting on 0:04:21.279 --> 0:04:24.120 behalf of a client, he may have handled the conversation 0:04:24.400 --> 0:04:27.039 or the meeting differently. The fact was the defense was 0:04:27.120 --> 0:04:30.880 able to impeach that testimony somewhat by pointing out that 0:04:31.000 --> 0:04:34.720 Sussman had represented cybersecurity clients in the past and that 0:04:34.800 --> 0:04:37.839 Baker had said at various times that he didn't remember 0:04:37.880 --> 0:04:40.479 certain parts of that conversation. And when he took to 0:04:40.520 --> 0:04:43.080 witness stand, he said he couldn't remember a hundred sixteen 0:04:43.160 --> 0:04:45.599 times when the defense to asked him questions, and so 0:04:45.880 --> 0:04:49.120 his testimony wasn't rock solid. Despite the fact that he 0:04:49.120 --> 0:04:51.480 said he was a percent confident, the defense was able 0:04:51.520 --> 0:04:55.839 to bring out instances where his recollection was not entirely 0:04:55.920 --> 0:04:59.240 solid as to what was said at that exact meeting, 0:04:59.440 --> 0:05:01.560 and ultimate to leave, the defense was able to make 0:05:01.600 --> 0:05:04.120 a big issue of the fact that this entire case 0:05:04.400 --> 0:05:07.360 was really turning on the question of what happened at 0:05:07.360 --> 0:05:10.600 a brief, thirty minute meeting more than five years ago. 0:05:11.200 --> 0:05:14.080 I think the jury ultimately looked at this case and 0:05:14.200 --> 0:05:17.200 decided that it was more political than criminal, and that's 0:05:17.240 --> 0:05:20.640 why they ultimately acquitted Sessement after this trial, in only 0:05:20.680 --> 0:05:24.400 a day and a half of deliberations, Bob prosecutors used 0:05:24.440 --> 0:05:28.280 the case to try to put forward a larger conspiracy theory, 0:05:28.760 --> 0:05:32.960 and in the closing arguments, the defense attorney denigrated that effort. 0:05:33.360 --> 0:05:36.560 Sean Berkowitz said the prosecution was trying to turn a 0:05:36.600 --> 0:05:39.839 thirty minute meeting more than five years ago into a 0:05:39.960 --> 0:05:45.080 giant political conspiracy theory. Apparently that was pretty effective because 0:05:45.160 --> 0:05:48.680 the jury, four women said the prosecution never should have 0:05:48.680 --> 0:05:51.800 brought this case. Do you think that it hurt the 0:05:51.800 --> 0:05:54.760 prosecution to put this in context or did they have 0:05:54.839 --> 0:05:57.159 to put it in context? Well, that was the buying 0:05:57.200 --> 0:05:59.360 the prosecution ultimately was in from the start of this 0:05:59.520 --> 0:06:02.360 case goes. On the one hand, prosecutor said, this case 0:06:02.720 --> 0:06:05.520 is not about politics. It's about telling the truth. It's 0:06:05.520 --> 0:06:08.560 about whether sessamen lie to the FBI in order to 0:06:08.600 --> 0:06:10.400 get that meeting. When he said that he was not 0:06:10.520 --> 0:06:13.120 acting on behalf of a client. But ultimately it was 0:06:13.160 --> 0:06:15.280 about politics, and they had to go back to the 0:06:15.279 --> 0:06:18.080 scene that this was really an attempt by the Clinton 0:06:18.080 --> 0:06:21.440 campaign to try to get the FBI to investigate this 0:06:21.680 --> 0:06:25.320 alleged tie between the Trump organization and this Russian bank 0:06:25.360 --> 0:06:28.240 and then leak that information to the media in the 0:06:28.320 --> 0:06:30.520 hopes that it would get out there in the final 0:06:30.600 --> 0:06:33.320 days of the campaign and affect the campaign in some way. 0:06:33.360 --> 0:06:36.400 That was really what they were trying to suggest, and ultimately, 0:06:36.440 --> 0:06:38.520 I think the defense was able to turn that around 0:06:38.560 --> 0:06:41.400 on its head and say this is simply what's done 0:06:41.440 --> 0:06:44.520 all the time, it's opposition research. And they were also 0:06:44.600 --> 0:06:47.160 able to point out that there was some information from 0:06:47.160 --> 0:06:49.719 the Clinton campaign that said that they did not want 0:06:49.760 --> 0:06:52.440 these allegations to be taken up by the FBI at 0:06:52.440 --> 0:06:54.760 that point because they were concerned that a new story 0:06:54.800 --> 0:06:57.920 about the issue and the investigation might complicate the news 0:06:57.920 --> 0:07:00.480 stories that might come out about it. So it wasn't 0:07:00.600 --> 0:07:02.840 entirely clear that it was in the interest of the 0:07:02.880 --> 0:07:06.800 Clinton campaign to have the FBI investigated. They simply wanted 0:07:06.839 --> 0:07:09.560 the news media to write about the potential league because 0:07:09.560 --> 0:07:11.320 they thought that would have more of an impact on 0:07:11.360 --> 0:07:16.200 the election than an FBI investigation. Sussman decided not to 0:07:16.240 --> 0:07:20.920 take the witness stand in his own defense. Obviously, in hindsight, 0:07:21.120 --> 0:07:25.080 that was the right decision, But what kinds of considerations 0:07:25.440 --> 0:07:29.400 would the defense have been weighing. I think that was 0:07:29.440 --> 0:07:33.760 a very shrewd strategic decision by the defense because they 0:07:33.800 --> 0:07:37.200 did not want to make this trial about Michael Sussman. 0:07:37.240 --> 0:07:41.360 They wanted to make this trial about the inconsistent recollection 0:07:41.400 --> 0:07:44.920 of James Baker, and by not having Sussman take the 0:07:45.040 --> 0:07:47.920 stand and recall what went on at that meeting, the 0:07:48.000 --> 0:07:51.560 defense was able to focus the entire case about what 0:07:51.720 --> 0:07:55.160 James Baker recalled about that brief thirty minute meeting that 0:07:55.240 --> 0:07:57.720 occurred more than five years ago, on the fact that 0:07:57.720 --> 0:08:01.280 he took no contemporaneous notes and was simply recalling from 0:08:01.320 --> 0:08:04.440 memory what was said at that meeting. Pub Let me 0:08:04.480 --> 0:08:07.200 ask you this, Since you're a prosecutor for so long, 0:08:07.600 --> 0:08:11.280 isn't it like a matter of course for FBI agents 0:08:11.400 --> 0:08:14.000 or people in the FBI to take notes when they're 0:08:14.040 --> 0:08:16.640 interviewing someone like that. Well, it was a bit of 0:08:16.640 --> 0:08:20.440 an unusual meeting because it was this phone call placed 0:08:20.480 --> 0:08:24.400 from Sussman to the FBI General Council. This is not 0:08:24.480 --> 0:08:27.360 something that occurs on a daily basis, and typically it 0:08:27.400 --> 0:08:30.800 would be something that would be handled by agents rather 0:08:30.880 --> 0:08:33.560 than by the General Council. But yes, that is usually 0:08:33.800 --> 0:08:36.400 the practice of the FBI, first of all, to not 0:08:36.520 --> 0:08:38.920 meet with anybody alone, So that seemed to be someone 0:08:38.960 --> 0:08:41.360 unusual that there would be only one person from the 0:08:41.400 --> 0:08:43.920 FBI at the meeting, and secondly that there were no 0:08:43.960 --> 0:08:47.560 contemporaries notes taken. But at the time, remember, the meeting 0:08:47.640 --> 0:08:50.520 was simply to get information that the FBI may or 0:08:50.520 --> 0:08:53.920 may not use to launch an investigation, so it's not 0:08:54.000 --> 0:08:57.959 completely surprising that there wasn't a full memorandum of that meeting, 0:08:58.000 --> 0:09:01.280 but it is surprising that they were not least contemporaneous 0:09:01.280 --> 0:09:05.640 notes that would have corroborated Baker's testimony about what Sussman 0:09:05.720 --> 0:09:07.960 said to him as to why he was there and 0:09:08.000 --> 0:09:11.720 who may have sent him. Let's talk about materiality, because 0:09:11.920 --> 0:09:13.840 part of the reason why this was an uphill battle 0:09:14.000 --> 0:09:17.080 is that the prosecutor had to convince the jury beyond 0:09:17.120 --> 0:09:20.559 a reasonable doubt not only that Sussman lied to Baker, 0:09:20.880 --> 0:09:24.200 but that the lie was material enough to influence the 0:09:24.320 --> 0:09:29.080 FBI's actions or decisions. The testimony from Baker again was 0:09:29.200 --> 0:09:32.560 critical on this point, because he testified that had he 0:09:32.720 --> 0:09:36.199 known that Sussman was acting on behalf of the Clinton campaign, 0:09:36.400 --> 0:09:38.640 he may not have taken the meeting at all, or 0:09:38.640 --> 0:09:41.600 he would have treated the information differently. That was the 0:09:41.679 --> 0:09:45.440 government's proof that it was material. Now, in response, the 0:09:45.480 --> 0:09:48.440 defense made a compelling case that the FBI was well 0:09:48.480 --> 0:09:52.360 aware that Michael Sussman had worked on behalf of interest 0:09:52.400 --> 0:09:55.240 for the Democratic Party in the past, and so whether 0:09:55.360 --> 0:09:57.800 or not he was acting on behalf of the Clinton 0:09:57.840 --> 0:10:00.760 campaign at the time he was at that meeting, or 0:10:00.760 --> 0:10:03.880 whether he simply had worked for Democratic campaigns and the 0:10:03.920 --> 0:10:07.680 Clinton campaign in other context was really not a material factor. 0:10:07.840 --> 0:10:10.640 In other words, they knew that Michael Sussman was not 0:10:10.679 --> 0:10:13.079 working on behalf of the Republican Party. They knew that 0:10:13.120 --> 0:10:16.640 Michael Sussman was not working on behalf of conservative elements 0:10:16.720 --> 0:10:19.280 in the Republican Party. They knew that this is somebody 0:10:19.280 --> 0:10:22.480 who aligned himself with the Democratic Party, and so whether 0:10:22.559 --> 0:10:25.120 or not he was acting officially on their behalf at 0:10:25.160 --> 0:10:27.959 that moment or not really wouldn't have made any difference 0:10:28.080 --> 0:10:30.600 in terms of how the FBI treated that information. And 0:10:30.679 --> 0:10:34.280 of course, ultimately the FBI took the information and investigated 0:10:34.280 --> 0:10:36.920 it and found out that there was nothing to the 0:10:36.960 --> 0:10:41.240 alleged connection between the Trump organization and this Russian bank. So, 0:10:41.360 --> 0:10:45.119 in essence, the process worked regardless of where the information 0:10:45.200 --> 0:10:48.240 came from. The FBI ran it to ground and decided 0:10:48.400 --> 0:10:50.760 that there was nothing to it. So I think at 0:10:50.800 --> 0:10:52.439 the end of the day, one of the problems of 0:10:52.520 --> 0:10:57.440 prosecution had was convincing jurors that this case really mattered, 0:10:57.640 --> 0:11:00.480 that it really mattered whether or not he identified himself 0:11:00.520 --> 0:11:04.080 as working for the Clinton campaign at that moment, since 0:11:04.120 --> 0:11:06.680 the defense argued the FBI was well aware that he 0:11:06.760 --> 0:11:09.320 had worked on behalf of democratic interest in the past. 0:11:09.679 --> 0:11:12.600 To that point, the jury four person said the case 0:11:12.840 --> 0:11:15.160 never should have been brought and that the time could 0:11:15.160 --> 0:11:19.240 have been spent more wisely. And the prosecution couldn't get 0:11:19.360 --> 0:11:22.240 around the fact that the FBI agent they put on 0:11:22.280 --> 0:11:26.040 the stand who initially investigated said that he wouldn't have 0:11:26.080 --> 0:11:29.640 done anything differently if he'd known the tip originated from 0:11:29.640 --> 0:11:33.720 a partisan source. So one wonders, with that kind of testimony, 0:11:33.760 --> 0:11:38.440 why Durham even chose to bring this case. That's a 0:11:38.480 --> 0:11:41.880 good question. I think that the Special Counsel looked at 0:11:41.920 --> 0:11:45.000 this case un thought that they had a clear lie here, 0:11:45.320 --> 0:11:48.560 that there was enough evidence to convince a jury that 0:11:48.679 --> 0:11:52.040 Michael Sussman was acting on behalf the Clinton campaign. Remember, 0:11:52.240 --> 0:11:55.400 they did pull his billing records, and they were able 0:11:55.440 --> 0:11:58.600 to show at least a compelling argument that Michael Sussman 0:11:58.760 --> 0:12:01.240 was billing the Clinton camp pain at the time he 0:12:01.280 --> 0:12:03.920 was sitting in on this meeting with Michael Baker, and 0:12:03.960 --> 0:12:07.360 I believe prosecutors thought that was enough. Ultimately, the defense 0:12:07.440 --> 0:12:09.439 was able to show that those billing records were not 0:12:09.600 --> 0:12:13.200 quite as clear as maybe they seemed initially that there 0:12:13.240 --> 0:12:15.480 was billing for the Clinton campaign on the day of 0:12:15.480 --> 0:12:18.440 that meeting, but it wasn't entirely clear that he built 0:12:18.800 --> 0:12:21.000 for the meeting. That even went so far as to 0:12:21.040 --> 0:12:24.280 show that Michael Suftman build the Clinton campaign for the 0:12:24.320 --> 0:12:26.800 cost of the flash drive on which he handed the 0:12:26.840 --> 0:12:29.720 information over to the FBI. So I think they thought 0:12:29.760 --> 0:12:32.920 that that was going to be enough. But ultimately the 0:12:33.000 --> 0:12:36.640 downfall for the prosecution here, in my opinion, is that 0:12:36.720 --> 0:12:40.320 it turned on this one meeting between two individuals that 0:12:40.400 --> 0:12:43.960 occurred five years ago, and there were no contemporaneous notes, 0:12:44.000 --> 0:12:47.400 so it was essentially one person's recollection against the other. 0:12:47.640 --> 0:12:50.760 On the defense was able to raise a reasonable doubt 0:12:50.760 --> 0:12:52.760 in the mind of jurors as to whether or not 0:12:52.880 --> 0:12:55.679 Baker's recollection of what was said at that meeting was 0:12:55.760 --> 0:12:58.200 actually accurate. We want to look at the big picture 0:12:58.240 --> 0:13:01.400 for a moment. Durham's invested gation has now gone on 0:13:01.720 --> 0:13:06.319 longer than the Muller investigation. In he got a guilty 0:13:06.360 --> 0:13:10.000 plea from a former FBI lawyer for altering an email 0:13:10.120 --> 0:13:13.400 relating to a surveillance request, and that lawyer got probation. 0:13:13.640 --> 0:13:16.320 This Suessman case was based on a lie to the 0:13:16.400 --> 0:13:20.920 FBI and failed in October, Dorms bring a case against 0:13:20.920 --> 0:13:25.240 an analyst who's also charged with lying to the FBI 0:13:25.320 --> 0:13:28.960 about the sources of his information. So these cases are 0:13:28.960 --> 0:13:33.240 not about misconduct by the FBI in the Russian investigation. 0:13:33.800 --> 0:13:39.240 They're prosecuting lies from people about seemingly peripheral issues. That's 0:13:39.280 --> 0:13:41.080 a great point. And if you remember back to the 0:13:41.120 --> 0:13:43.440 beginning of all this, that was the question. You had 0:13:43.440 --> 0:13:47.079 a couple of FBI agents who had exchanged text messages 0:13:47.120 --> 0:13:50.120 which tended to show that they were not in favor 0:13:50.120 --> 0:13:53.400 of the election of then candidate Trump, and the focus 0:13:53.400 --> 0:13:54.920 of this was going to be on whether or not 0:13:54.960 --> 0:13:58.679 it was the FBI itself that was out to prevent 0:13:58.920 --> 0:14:02.480 then candidate Trump I'm getting elected president. These cases are 0:14:02.520 --> 0:14:05.520 all about information that is being brought to the FBI, 0:14:05.600 --> 0:14:08.920 and in fact invalidates the fact that the FBI treated 0:14:08.960 --> 0:14:12.040 them fairly and partially and ran them to ground based 0:14:12.040 --> 0:14:14.920 solely on the evidence because they did not pursue in 0:14:14.920 --> 0:14:17.600 this case leads that there was this a leg tied 0:14:17.640 --> 0:14:20.520 between the Trump organization on this Russian bank. They investigated 0:14:20.600 --> 0:14:23.000 and have found there was nothing to it. So this 0:14:23.080 --> 0:14:25.960 is really a case where the process worked and the 0:14:26.000 --> 0:14:28.320 only question is whether or not the people who brought 0:14:28.400 --> 0:14:31.840 the information to the FBI were acting improperly. And I 0:14:31.920 --> 0:14:35.040 often think about this when I see that a prosecution 0:14:35.200 --> 0:14:39.000 ends up being about lying to the FBI. Is that 0:14:39.120 --> 0:14:42.480 almost an admission that you know you couldn't make a 0:14:42.520 --> 0:14:45.600 prosecution based on the charges you were initially looking for, 0:14:45.840 --> 0:14:49.000 so you fall back on this line to the FBI, 0:14:49.200 --> 0:14:52.400 which is a crime, a felony, but still well. I 0:14:52.400 --> 0:14:55.680 do think that plays into the general public perception of 0:14:55.720 --> 0:14:57.600 these types of cases. And now, of course we don't 0:14:57.640 --> 0:15:01.040 really know what else the Special Counsel's Office ad investigating. 0:15:01.280 --> 0:15:03.640 It's possible that there could be other cases that they 0:15:03.720 --> 0:15:06.520 bring in the future that may be more serious than 0:15:06.560 --> 0:15:09.520 the ones that they've brought to date, but generally you 0:15:09.520 --> 0:15:12.280 want to bring your best cases first, and these are 0:15:12.280 --> 0:15:14.400 the kind of cases that are sort of around the 0:15:14.440 --> 0:15:17.480 periphery of their general mission. And I do think it 0:15:17.600 --> 0:15:20.080 raises a question in the mind of the public as 0:15:20.080 --> 0:15:23.400 to whether or not this three year investigation by John 0:15:23.480 --> 0:15:26.600 Durham and his Special Counsel Office ultimately has led to 0:15:26.640 --> 0:15:30.480 anything that shows that the FBI was corrupted on The 0:15:30.600 --> 0:15:35.720 FBI conducted investigations in a less than impartial and professional manner. 0:15:35.960 --> 0:15:38.240 These are cases, as I said earlier, that go to 0:15:38.280 --> 0:15:41.800 the integrity of people bringing information to the FBI. But 0:15:42.000 --> 0:15:45.520 so far we've seen no evidence of the FBI acting 0:15:45.560 --> 0:15:48.640 improperly with the information that they receive. We'll see what 0:15:48.760 --> 0:15:52.440 the next trial in October brings out. Thanks so much, Bob. 0:15:52.720 --> 0:15:56.280 That's former federal prosecutor Robert Mints, a partner in mcarter. 0:15:56.360 --> 0:16:00.840 In English, we see that the First Amendment is under 0:16:00.880 --> 0:16:04.080 assault by the social media companies and that is not 0:16:04.160 --> 0:16:08.120 going to be tolerated. In Texas, Texas Governor Greg Abbott 0:16:08.240 --> 0:16:12.200 said that a law barring social media platforms from removing 0:16:12.320 --> 0:16:16.360 content based on the views expressed was needed to protect 0:16:16.360 --> 0:16:20.400 conservative voices from being silenced. But tech groups said the 0:16:20.480 --> 0:16:25.400 law would unconstitutionally require social media companies like Twitter and 0:16:25.440 --> 0:16:30.160 Facebook to allow hate speech and extremism on their platforms, 0:16:30.200 --> 0:16:32.880 and by a five to four vote, the justices put 0:16:32.880 --> 0:16:36.680 the law on hold while a constitutional challenge goes forward 0:16:36.760 --> 0:16:39.560 in a lower court. Joining me is Eric Goldman, a 0:16:39.600 --> 0:16:43.640 professor at Santa Clara University School of Law. Eric tell 0:16:43.720 --> 0:16:48.080 us about this Texas law and its purpose. So last summer, 0:16:48.240 --> 0:16:51.640 Texas enacted a law that was styled a social media 0:16:51.760 --> 0:16:56.960 censorship law, and the sensible purpose is to prevent internet 0:16:56.960 --> 0:17:02.560 services from engaging in biased content moderation, especially moderation that 0:17:02.560 --> 0:17:05.800 would be biased against conservatives. But in fact the bill 0:17:06.040 --> 0:17:09.000 is a form of censorship of social media, so the 0:17:09.080 --> 0:17:13.439 titling was unfortunately ironic. If someone was advocating violence against 0:17:13.520 --> 0:17:17.960 a certain group, would that be allowed under this law? 0:17:18.400 --> 0:17:21.600 The short answer is we don't know, but most likely 0:17:22.240 --> 0:17:25.560 anyone whose content was removed because it was hate speech, 0:17:25.680 --> 0:17:30.639 because it was targeting particular demographics, would likely have a 0:17:30.720 --> 0:17:35.720 claim to assert that they were discriminating against by the service, 0:17:36.280 --> 0:17:38.439 and as a result, the services are going to be 0:17:38.480 --> 0:17:42.159 inhibited in making those decisions. So whether or not the 0:17:42.280 --> 0:17:46.879 law would specifically permit or deny content moderation and circumstance, 0:17:47.040 --> 0:17:49.640 the announce services would likely not touch it. Are there 0:17:49.640 --> 0:17:55.480 certain kinds of speech that social media platforms have to remove? Yes, 0:17:55.520 --> 0:17:57.919 there are. There's actually a wide range of things that 0:17:58.000 --> 0:18:01.520 under existing law, internet services are required to take down, 0:18:01.760 --> 0:18:04.280 and some of this is governed by a statute that 0:18:04.320 --> 0:18:07.520 says that services are protected from third party content, but 0:18:07.600 --> 0:18:12.480 it has exceptions, for example, related to violations of federal 0:18:12.520 --> 0:18:17.360 criminal law, also with respect to things like intellectual property violations. 0:18:17.359 --> 0:18:21.320 So you know, services are legally compelled to remove some content, 0:18:21.520 --> 0:18:24.480 and then things like the Texas Bill might say, if 0:18:24.480 --> 0:18:27.159 you're not legally compelled to require it, you have to 0:18:27.240 --> 0:18:30.320 leave it up or face extreme liability. So put student 0:18:30.480 --> 0:18:34.040 services in this really awful position of having to be 0:18:34.160 --> 0:18:38.000 precisely accurate with every single moderation decision to make. So 0:18:38.040 --> 0:18:39.800 what are the arguments that we're made to the court 0:18:39.840 --> 0:18:45.720 here excessis argument is that it's protecting its citizens from 0:18:46.000 --> 0:18:49.520 discrimination that's being imposed by services that don't have the 0:18:49.640 --> 0:18:52.800 legal right to do so. And so they've analogized, for example, 0:18:52.920 --> 0:18:56.200 to the telephone service, saying the telephone service doesn't get 0:18:56.240 --> 0:18:58.639 to hang up on your calls because of the fact 0:18:58.640 --> 0:19:01.480 that you might be engaging in each speech. The argument 0:19:01.600 --> 0:19:05.280 against the law is that it's a bald faced imposition 0:19:05.320 --> 0:19:09.680 of government control of editorial decision making the advanced services 0:19:09.760 --> 0:19:12.120 decide which content is fit for their audience or not, 0:19:12.320 --> 0:19:16.240 and the government is imposing its will, saying you can't 0:19:16.240 --> 0:19:18.320 make the decisions, We're going to make them for you. 0:19:18.480 --> 0:19:22.639 So from the opponent standpoint, this is just flat out censorship. 0:19:23.000 --> 0:19:29.000 Am I being crazy and saying that Texas argument sounds ludicrous? No, 0:19:29.160 --> 0:19:31.960 you're not crazy to think that the argument sounds ludicrous. 0:19:32.000 --> 0:19:34.760 And part of that is because this law really was 0:19:34.880 --> 0:19:38.119 never meant to pass. This law, like many others that 0:19:38.160 --> 0:19:40.880 have been introduced across the country, were designed to send 0:19:40.880 --> 0:19:45.680 a message to the voters that the legislature and the 0:19:45.720 --> 0:19:48.560 governor were working to take care of them. But they 0:19:48.600 --> 0:19:51.399 didn't actually want to enact the law. They just needed 0:19:51.400 --> 0:19:53.760 to tell the voters that they cared. So once it 0:19:53.840 --> 0:19:57.200 became law, it became in this huge dilemma because it 0:19:57.280 --> 0:20:00.840 was never meant to actually be effective, and nobody, even 0:20:00.920 --> 0:20:03.120 the proponents, actually want the law to do what it's 0:20:03.119 --> 0:20:06.560 supposed to do. One more thing that's really unusual about 0:20:06.560 --> 0:20:08.600 the Texas Law and a sign that this is a 0:20:08.680 --> 0:20:13.960 law that nobody actually wants. The Texas Law bands spam filtering. 0:20:14.280 --> 0:20:19.040 It basically makes it difficult or impossible for email service 0:20:19.119 --> 0:20:24.200 writers to filter spam out of your inbox. Now that's 0:20:24.200 --> 0:20:28.440 just bad policy. It's really actually unbelievable that any legislator 0:20:28.480 --> 0:20:30.919 would think that that's the right result, and it's a 0:20:30.960 --> 0:20:33.320 sign that this law was really a messaging bill. It 0:20:33.400 --> 0:20:38.120 was never meant to become law, because nobody wants an 0:20:38.280 --> 0:20:41.760 email inbox that's not subject to spam filtering. So these 0:20:41.880 --> 0:20:45.080 quote messaging bills designed to send a message but not 0:20:45.160 --> 0:20:48.320 meant to pass are hugely problematic. But if they actually passed, 0:20:48.359 --> 0:20:52.000 they're even more problematic. But yet you had Aldo's dissent 0:20:52.440 --> 0:20:55.959 joined by Thomas and Gorsage. It's a little hard to 0:20:55.960 --> 0:21:00.520 read into the descent that Justice Alito wrote. Has the 0:21:00.680 --> 0:21:04.359 case came to the Supreme Court in a procedurally awkward way, 0:21:04.600 --> 0:21:08.520 And I think that it's understandable that the justices were 0:21:08.640 --> 0:21:13.359 not excited about making a substant decision when they hadn't 0:21:13.359 --> 0:21:15.639 had a chance to be fully briefed in a normal 0:21:15.720 --> 0:21:19.639 appellate process. So I took Justice Alito's opinion as a 0:21:19.680 --> 0:21:22.600 sign that he didn't like the procedural posture of the case, 0:21:22.640 --> 0:21:25.919 which is understandable. I didn't like it either. And yet 0:21:26.040 --> 0:21:29.760 what troubles me is that the consequence of his opinion 0:21:29.760 --> 0:21:32.119 would have been to let this law that's never really 0:21:32.160 --> 0:21:35.359 meant to be law that sounds like it's clearly sensorial, 0:21:35.760 --> 0:21:39.520 go into a fact depending for the proceedings. But Justice 0:21:39.600 --> 0:21:44.879 Thomas last year suggested that the government might constitutionally be 0:21:45.000 --> 0:21:49.720 able to limit Twitter's ability to ban users. Yeah, and 0:21:49.800 --> 0:21:52.560 in that statement that he made, he admitted that he 0:21:52.600 --> 0:21:55.439 had not had the benefit of proper briefing. He was 0:21:55.520 --> 0:21:59.000 just writing. He was just talking um, which of course 0:21:59.080 --> 0:22:01.600 is really troubling because that's not really what we expect 0:22:01.640 --> 0:22:05.320 Supreme Court justices to do. We expect them to hear 0:22:05.400 --> 0:22:09.080 all the evidence, to hear the perspectives of both sides, 0:22:09.160 --> 0:22:12.320 and then rule on a live case in front of them. 0:22:12.400 --> 0:22:15.119 And Justice Thomas's statement was none of that. So it 0:22:15.200 --> 0:22:18.879 was really actually a tell on Justice Thomas that he 0:22:19.000 --> 0:22:21.919 was willing to pipe up when nobody asked him, and 0:22:21.960 --> 0:22:26.199 he wasn't actually properly prepared. Some people are making a 0:22:26.280 --> 0:22:29.120 lot out of the fact that there was an unusual 0:22:29.160 --> 0:22:34.000 alignment in descent because Justice Kagan joined the three Conservatives, 0:22:34.000 --> 0:22:37.280 but she didn't join Alito's descent, So might this be 0:22:37.480 --> 0:22:41.199 a protest on her part about another decision on the 0:22:41.240 --> 0:22:44.280 shadow docket. It's a little hard to read into Justice 0:22:44.480 --> 0:22:47.320 Kagan's vote in this dicular case, but I don't put 0:22:47.359 --> 0:22:49.199