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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

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Speaker 1: and on Bloomberg dot com slash podcasts. President Donald Trump

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Speaker 1: wanted to fire a special counsel, Robert Muller and June.

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Speaker 1: According to three people familiar with the matter, Trump ultimately

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Speaker 1: relented after White House counsel Don McGan refused to carry

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Speaker 1: out the order and threatened to resign. Yesterday, Senator Mark Warner,

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Speaker 1: the top Democrat on the Intelligence Committee, issued a statement saying, quote,

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Speaker 1: firing the special counsel is a red line the president

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Speaker 1: cannot cross. That echoes the warning Warner gave on the

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Speaker 1: Senate floor in December. These truly are red lines and

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Speaker 1: simply cannot allow them to be crossed. As he arrived

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Speaker 1: in Davos, the President called the story fake news, echoing

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Speaker 1: denials he and his staff have been making for months

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Speaker 1: like this on August ten, I haven't given it anything.

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Speaker 1: I mean, I've been reading about it from you people.

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Speaker 1: You say, oh, I'm going to dismiss him. No, I'm

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Speaker 1: not dismissing anybody. My guess is Jeffrey Kramer, managing director

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Speaker 1: at the Berkeley Research Group and a former federal prosecutor.

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Speaker 1: Jeff there have been reports that Trump was considering firing

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Speaker 1: Mueller for months. In fact, several Senators from both sides

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Speaker 1: of the aisle have proposed bills to protect Muller. So

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Speaker 1: why this shock from so many quarters about this story? Well,

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Speaker 1: I think this is the first time. Again, if the

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Speaker 1: reports are true, and what the reporting has, I think

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Speaker 1: it's three or four individuals who are telling the same story.

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Speaker 1: This is the first time we've had, let's call it

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Speaker 1: confirmation or at least a little more than a rumor,

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Speaker 1: that he was thinking about not only fire, but may

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Speaker 1: have taken steps and asked his White House counsel to

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Speaker 1: reach out to d o J to do it, which

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Speaker 1: would be the mechanism. So I think it is a

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Speaker 1: bit of a sea change. So what would happen if

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Speaker 1: Trump does decide to fire Muller. Well, it's an interesting process.

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Speaker 1: The president technically cannot fire Bob Mullard UH the d

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Speaker 1: o J ken and usually be the Attorney general, but

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Speaker 1: unfortunately here UH he has recused himself, so it's left

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Speaker 1: to the Deputy Attorney General. So Rod Rosenstein is the

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Speaker 1: only one who legally can fire Bob Muller, which is

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Speaker 1: why part of the reporting is that Mr Trump may

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Speaker 1: have asked McGann to reach out to Rod Rosenstein um.

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Speaker 1: But the problem is, at least from the President's standpoint,

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Speaker 1: according to Rosenstein and his testimony before Congress, he's fine

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Speaker 1: with Mueller. Mueller has to check in with him periodically

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Speaker 1: according the Special Council legislation, and he sees no reason

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Speaker 1: to fire him. So that's where the rubber hits the

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Speaker 1: road is with the Deputy Attorney General looking at what's

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Speaker 1: called the Senterated Night massacre. When President Nixon ordered the

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Speaker 1: Independent Special Counsel uh Independent Special Prosecutor Archibald Cox to

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Speaker 1: be fired. You'd say that if anything like that happened,

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Speaker 1: it would lead to impeach bent. But Trump has demonstrated

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Speaker 1: that he can get away with things that most presidents can.

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Speaker 1: And we've seen a Republican effort in the last few

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Speaker 1: months to knock Mueller's investigation as being partisan and to

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Speaker 1: you know, criticize the FBI. So what do you make

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Speaker 1: of that? Well, I mean, there are some certainly some similarities.

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Speaker 1: The differences ours as you just indicated, um times of change,

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Speaker 1: and you do see a politicalization, maybe more so than

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Speaker 1: even during the Nixon era, of Republicans repeatedly taking shots

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Speaker 1: at Mueller's investigation, at some of Mueller's team at the FBI,

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Speaker 1: it's been a pretty steady drumbeat, and I think that's

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Speaker 1: a concerted effort to minimize any results that Mueller brings,

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Speaker 1: be at an indictment or a report that goes to

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Speaker 1: Congress for possible uh impeachment proceedings, which is a is

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Speaker 1: a strictly political endeavor. It's not a criminal endeavor, it's

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Speaker 1: a legal endeavor. So I think it's a it's an

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Speaker 1: effort by the president's ally to minimize Mueller even before

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Speaker 1: any results are are before us. So, judging from the

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Speaker 1: people in Trump's inner circle that Mueller has called in,

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Speaker 1: Mueller seems to have gotten far in the obstruction phase

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Speaker 1: of the case. Is an interview with the president, which

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Speaker 1: is being talked about. The final step in that part

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Speaker 1: of the investigation. I think it is maybe a little

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Speaker 1: clean up here and there with other witnesses, but certainly

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Speaker 1: the president would be one of the last people that

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Speaker 1: his team would would interview. Interestingly, most investigations when they

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Speaker 1: go on, the public doesn't know what's going on, other

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Speaker 1: than maybe a little rumor here or there. In this case,

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Speaker 1: we know a fair we know a fair amount of

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Speaker 1: what of what Muller knows, albeit maybe a few months

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Speaker 1: behind the curve. UM, So I think there, you know,

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Speaker 1: could be some elements of obstruction, in which case, the

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Speaker 1: interview with the president, if it takes place, I'm still

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Speaker 1: convinced that somehow he's going to get out of it,

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Speaker 1: because the last thing his criminal lawyers want is a

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Speaker 1: free blowing interview with Mueller's prosecutors who are armed with

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Speaker 1: documents and having already interviewed dozens of witnesses and seeing

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Speaker 1: what their clients says as he says that they're going

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Speaker 1: to be learning it. That's not what the criminal defense

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Speaker 1: lawyers want to happen. And there are there are reports

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Speaker 1: that people who have been interviewed by Mueller were shocked

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Speaker 1: at the by Mueller or his investigators were shocked at

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Speaker 1: the amount of information they confronted them with. So now

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Speaker 1: White House lawyer Ty Cobb actually who was Trump's lawyer,

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Speaker 1: says that um he is going to be making the

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Speaker 1: decision about whether or not Trump is going to sit

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Speaker 1: for an interview with Mueller. What what are the possibilities here,

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Speaker 1: because it seems like Mueller would not give into, you know,

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Speaker 1: a written questions to take home exams sort of yeah,

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Speaker 1: I agree with you. Um, Ultimately it's up to the client.

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Speaker 1: I mean, it's up to the President of the United

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Speaker 1: States whether he wants to do it. So Ty was

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Speaker 1: giving him, certainly some some back cover. The President can say, well,

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Speaker 1: my lawyer's told me not to do it, but you're right,

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Speaker 1: Mueller is not going to agree to to take home

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Speaker 1: exam and have the lawyers review the answers. If push

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Speaker 1: comes to shove and you play this out at the

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Speaker 1: game of chess, if the President says no, I'm not

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Speaker 1: gonna sit down for an interview, now there's a fork

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Speaker 1: in the road for Mueller. He can either walk away,

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Speaker 1: which is not going to happen, or he can issue

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Speaker 1: a grand jury subpoena. And now the courts are going

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Speaker 1: to be involved because the President will trying to quash

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Speaker 1: that subpoena, saying a president doesn't meant to sit before

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Speaker 1: a grand jury, and the courts will be involved. There's

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Speaker 1: president for UH presidents to be interviewed. President Clinton was

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Speaker 1: interviewed in a lawsuit. So I think eventually this president

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Speaker 1: is going to have to answer questions. It can be

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Speaker 1: in an interview with Mueller's deputies and himself, or it

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Speaker 1: can be before a grand jury. But sooner or later,

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Speaker 1: he's gonna answer questions. I did a little research, and

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Speaker 1: I could not find any instance where a president was

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Speaker 1: successfully able to use executive privilege or some other legal

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Speaker 1: construct to avoid either testifying before a grand jury or

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Speaker 1: sitting down with investigators. Do you know of any instances

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Speaker 1: where a court said no? And I think your research

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Speaker 1: is spot on, especially when the case pertains to having

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Speaker 1: the president be a subject. If if the rule was

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Speaker 1: a president can basically avoid interviews with investigators or grand jury,

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Speaker 1: then the you know the old adage that we all

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Speaker 1: have that Noman is above the law, We're gonna have

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Speaker 1: to rewrite that um. And so I think, eventually, again,

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Speaker 1: if push comes to shove, testify and I don't think

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Speaker 1: a court is going to save him, I have to

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Speaker 1: say this remains continually interesting. There are always twists and turns,

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Speaker 1: and but wouldn't you like to be a fly on

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Speaker 1: the wall in Robert Mueller's office. I think most prosecutors

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Speaker 1: who have been in the game for a while, I

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Speaker 1: would love to have an interview with someone who just

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Speaker 1: speaks and then worries about the truth later. That's a

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Speaker 1: pretty good interview to have. Thanks so much for your insights, Jeff.

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Speaker 1: That's Jeff Kramer. He's the managing director at the Berkeley

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Speaker 1: Research Group, and he's a former federal and state prosecutor.

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Speaker 1: States are starting to step up and defy the fccs

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Speaker 1: repeal of net neutrality rules. New York has become the

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Speaker 1: second state to try to restore net neutrality principles by

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Speaker 1: taking action against broadband companies. On Wednesday, Governor Andrew Cuomo

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Speaker 1: signed an executive order barring state agencies from doing business

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Speaker 1: with Internet providers that block rivals web traffic or charge

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Speaker 1: more for faster service, following a similar order from Montana's

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Speaker 1: Governor Steve Bullock. Joining me is Daniel Lyons, professor at

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Speaker 1: Boston College Law School Dan. When the FCC rescinded the

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Speaker 1: Obama era net neutrality rules in December, it included a

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Speaker 1: clause banning states from adopting their own standards. Do these

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Speaker 1: executive orders get around that? So it's not entirely clear. Right.

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Speaker 1: In one sense, this is better I think UM, in

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Speaker 1: the sense of surviving litigation, better than the sort of

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Speaker 1: litigation that's being considered in California, where the legislature is

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Speaker 1: trying to directly require broadband providers to abide by the

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Speaker 1: rules of the FEC repealed. My senses, those kinds of

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Speaker 1: initiatives are probably preempted under the language of the UH

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Speaker 1: the SEC Statute. But this executive order UM, focusing on

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Speaker 1: procurement law, is an in run around I think may

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Speaker 1: actually avoid the pre emption problem. And it does, however,

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Speaker 1: face other issues. So the SEC has said it's going

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Speaker 1: to take states to court over net neutrality. Do you

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Speaker 1: expect that it will be legal battles that decide this issue?

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Speaker 1: I do, UM, although I'm not I don't know whether

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Speaker 1: it be the FEC who ends up acting or broadband

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Speaker 1: providers that are subject to the UM the executive order writer. Now,

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Speaker 1: groups representing broadband providers reacted with alarm to the prospect

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Speaker 1: of state regulations, saying base really that there can be

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Speaker 1: fifty different regulations governing the Internet. Do they have a point? Yeah?

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Speaker 1: And I think that's actually the area where these types

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Speaker 1: of issues are probably most vulnerable. First, one concern would

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Speaker 1: be whether there's a state law on the books that

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Speaker 1: prohibits the governor from attempting to regulate broadband. That's sort

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Speaker 1: of a state by state issue. But secondly, there's a

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Speaker 1: concern with the Dormant Commerce Clause, which is a constitutional

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Speaker 1: doctrine that prohibits states from engaging in regulatory activity that

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Speaker 1: would have an undoe influence on interstate UH conduct. The

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Speaker 1: concern here is that UH, the Internet is not something

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Speaker 1: that's easily segmented into a series of state by state networks,

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Speaker 1: and attempts to do that to impose rule of law

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Speaker 1: on New York as different than a rule of law

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Speaker 1: in New Jersey or something like that would destroy some

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Speaker 1: of the benefits we get from having one Internet and

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Speaker 1: instead create a series of splinternets. So the best thing

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Speaker 1: would be to have an aggressional law on this. Yeah, Certainly,

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Speaker 1: the cleanest way for net neutrality proponents to overcome the

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Speaker 1: SEC's rulemaking here is to adopt a statute that work

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Speaker 1: nationwide that would clarify once and for all what the

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Speaker 1: rules are with regard to broadband network management practices. You

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Speaker 1: mentioned California. Are there other state legislatures that are considering

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Speaker 1: different approaches, so I'm aware of the California has a

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Speaker 1: couple of different approaches on the board. Montana also recently

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Speaker 1: enacted in executive order similar to the one we see

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Speaker 1: coming out of New York. I think the primary difference

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Speaker 1: is that the Montana executive order impose requirements on broadband providers,

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Speaker 1: both with regard to UH contracts, the way the broadband

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Speaker 1: provider treats the state, and also the way it treats

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Speaker 1: individual residents within the state of Montana. My reading of

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Speaker 1: the New York executive order seems only to apply to

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Speaker 1: contracts with regard to state agencies and making sure that

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Speaker 1: state agencies are treated net neutral e doesn't, on its face,

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Speaker 1: regulate the relationship between broadband providers and New York consumers. Well,

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Speaker 1: someone have to police net neutrality. Tell us about a

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Speaker 1: New York City Mayor Bill de Blasio's truth in Broadband proposal.

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Speaker 1: So a big chunk of um the fight over net neutrality,

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Speaker 1: even independently of how traffic gets managed right, One of

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Speaker 1: the more important aspects is to make sure that whatever

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Speaker 1: broadband providers are doing their open about it. One of

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Speaker 1: the key instances that kicked off in that neutrality debate

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Speaker 1: was a situation in two thousand eight when Comcast was

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Speaker 1: interfering with bit torrent traffic, and Comcast added an argument

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Speaker 1: as to why um IT needed to do so. But

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Speaker 1: I think one of the things that rubbed the FEC

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Speaker 1: the wrong way is that they weren't transparent about what

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Speaker 1: they were doing. They tried to hide it, and when

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Speaker 1: they were called out on it, UH, it looked really

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Speaker 1: bad for them. One of the ways, and if you

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Speaker 1: believe in a competitive marketplace like the current FCC does,

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Speaker 1: one of the ways that you rely upon UH competition

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Speaker 1: to discipline market actors is to make sure that consumers

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Speaker 1: are making intelligent choices. So I think all aspects then,

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Speaker 1: as part of I think what Mayor de Bosi is

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Speaker 1: getting at, whatever it is that you're doing broadbanfort writers

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Speaker 1: should make sure that they're disclosing it accurately to the public.

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Speaker 1: To the public is making an intelligent choice among their providers.

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Speaker 1: So speaking still of New York, Governor Cuomo's office compiled

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Speaker 1: a list that said the telecommunication companies that do business

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Speaker 1: with New York include A G and T, Verizon, and

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Speaker 1: Frontier Communications explain how a rule in New York, which

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Speaker 1: is such a large and populous state, would affect other states.

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Speaker 1: So the question, which I don't know uh completely the

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Speaker 1: answer too, because it's a little bit technical, is how

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Speaker 1: easy it is for these broadband providers to segment their

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Speaker 1: traffic the traffic that stays intrastate versus the traffic that

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Speaker 1: crosses state lines. Right. Um, if it's possible for New

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Speaker 1: York to for for providers that the New York to

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Speaker 1: treat New York traffic differently than non New York traffic,

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Speaker 1: then the argument for a dormant commerce cause prohibition is

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Speaker 1: a little bit weaker. But it's a little bit difficult

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Speaker 1: to discern that because the path by which information gets

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Speaker 1: from point A to point B over the Internet is

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Speaker 1: somewhat random. Right, packets travel over the fastest possible pathway

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Speaker 1: at any given millisecond, and the way part of a

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Speaker 1: message travels may be different than the way another part

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Speaker 1: of the message travels. If it winds up being impossible

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Speaker 1: or very very difficult to distinguish interestate from interstate traffic,

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Speaker 1: then what it means is to comply with New York's requirement,

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Speaker 1: broadband providers would have to uh treat traffic net utually,

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Speaker 1: not just within New York but everywhere else in order

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Speaker 1: to avoid the allegation that they're out of compliance with

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Speaker 1: New York's requirement. And that's when dormant commerce cause concerns

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Speaker 1: become an issue. Dan, we'll have to leave the dormant

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Speaker 1: Karmace Claus commerce clause for a while. Thanks so much.

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Speaker 1: That's Daniel Lyons, the professor at Boston College Law School.

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Speaker 1: Thanks for listening to the Bloomberg Law Podcast. You can

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Speaker 1: subscribe and listen to the show on Apple podcast, SoundCloud,

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Speaker 1: and on Bloomberg dot com slash podcast. I'm June Brosso.

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Speaker 1: This is Bloomberg