Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight and analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud
Speaker 1: and on Bloomberg dot com slash podcasts. President Donald Trump
Speaker 1: wanted to fire a special counsel, Robert Muller and June.
Speaker 1: According to three people familiar with the matter, Trump ultimately
Speaker 1: relented after White House counsel Don McGan refused to carry
Speaker 1: out the order and threatened to resign. Yesterday, Senator Mark Warner,
Speaker 1: the top Democrat on the Intelligence Committee, issued a statement saying, quote,
Speaker 1: firing the special counsel is a red line the president
Speaker 1: cannot cross. That echoes the warning Warner gave on the
Speaker 1: Senate floor in December. These truly are red lines and
Speaker 1: simply cannot allow them to be crossed. As he arrived
Speaker 1: in Davos, the President called the story fake news, echoing
Speaker 1: denials he and his staff have been making for months
Speaker 1: like this on August ten, I haven't given it anything.
Speaker 1: I mean, I've been reading about it from you people.
Speaker 1: You say, oh, I'm going to dismiss him. No, I'm
Speaker 1: not dismissing anybody. My guess is Jeffrey Kramer, managing director
Speaker 1: at the Berkeley Research Group and a former federal prosecutor.
Speaker 1: Jeff there have been reports that Trump was considering firing
Speaker 1: Mueller for months. In fact, several Senators from both sides
Speaker 1: of the aisle have proposed bills to protect Muller. So
Speaker 1: why this shock from so many quarters about this story? Well,
Speaker 1: I think this is the first time. Again, if the
Speaker 1: reports are true, and what the reporting has, I think
Speaker 1: it's three or four individuals who are telling the same story.
Speaker 1: This is the first time we've had, let's call it
Speaker 1: confirmation or at least a little more than a rumor,
Speaker 1: that he was thinking about not only fire, but may
Speaker 1: have taken steps and asked his White House counsel to
Speaker 1: reach out to d o J to do it, which
Speaker 1: would be the mechanism. So I think it is a
Speaker 1: bit of a sea change. So what would happen if
Speaker 1: Trump does decide to fire Muller. Well, it's an interesting process.
Speaker 1: The president technically cannot fire Bob Mullard UH the d
Speaker 1: o J ken and usually be the Attorney general, but
Speaker 1: unfortunately here UH he has recused himself, so it's left
Speaker 1: to the Deputy Attorney General. So Rod Rosenstein is the
Speaker 1: only one who legally can fire Bob Muller, which is
Speaker 1: why part of the reporting is that Mr Trump may
Speaker 1: have asked McGann to reach out to Rod Rosenstein um.
Speaker 1: But the problem is, at least from the President's standpoint,
Speaker 1: according to Rosenstein and his testimony before Congress, he's fine
Speaker 1: with Mueller. Mueller has to check in with him periodically
Speaker 1: according the Special Council legislation, and he sees no reason
Speaker 1: to fire him. So that's where the rubber hits the
Speaker 1: road is with the Deputy Attorney General looking at what's
Speaker 1: called the Senterated Night massacre. When President Nixon ordered the
Speaker 1: Independent Special Counsel uh Independent Special Prosecutor Archibald Cox to
Speaker 1: be fired. You'd say that if anything like that happened,
Speaker 1: it would lead to impeach bent. But Trump has demonstrated
Speaker 1: that he can get away with things that most presidents can.
Speaker 1: And we've seen a Republican effort in the last few
Speaker 1: months to knock Mueller's investigation as being partisan and to
Speaker 1: you know, criticize the FBI. So what do you make
Speaker 1: of that? Well, I mean, there are some certainly some similarities.
Speaker 1: The differences ours as you just indicated, um times of change,
Speaker 1: and you do see a politicalization, maybe more so than
Speaker 1: even during the Nixon era, of Republicans repeatedly taking shots
Speaker 1: at Mueller's investigation, at some of Mueller's team at the FBI,
Speaker 1: it's been a pretty steady drumbeat, and I think that's
Speaker 1: a concerted effort to minimize any results that Mueller brings,
Speaker 1: be at an indictment or a report that goes to
Speaker 1: Congress for possible uh impeachment proceedings, which is a is
Speaker 1: a strictly political endeavor. It's not a criminal endeavor, it's
Speaker 1: a legal endeavor. So I think it's a it's an
Speaker 1: effort by the president's ally to minimize Mueller even before
Speaker 1: any results are are before us. So, judging from the
Speaker 1: people in Trump's inner circle that Mueller has called in,
Speaker 1: Mueller seems to have gotten far in the obstruction phase
Speaker 1: of the case. Is an interview with the president, which
Speaker 1: is being talked about. The final step in that part
Speaker 1: of the investigation. I think it is maybe a little
Speaker 1: clean up here and there with other witnesses, but certainly
Speaker 1: the president would be one of the last people that
Speaker 1: his team would would interview. Interestingly, most investigations when they
Speaker 1: go on, the public doesn't know what's going on, other
Speaker 1: than maybe a little rumor here or there. In this case,
Speaker 1: we know a fair we know a fair amount of
Speaker 1: what of what Muller knows, albeit maybe a few months
Speaker 1: behind the curve. UM, So I think there, you know,
Speaker 1: could be some elements of obstruction, in which case, the
Speaker 1: interview with the president, if it takes place, I'm still
Speaker 1: convinced that somehow he's going to get out of it,
Speaker 1: because the last thing his criminal lawyers want is a
Speaker 1: free blowing interview with Mueller's prosecutors who are armed with
Speaker 1: documents and having already interviewed dozens of witnesses and seeing
Speaker 1: what their clients says as he says that they're going
Speaker 1: to be learning it. That's not what the criminal defense
Speaker 1: lawyers want to happen. And there are there are reports
Speaker 1: that people who have been interviewed by Mueller were shocked
Speaker 1: at the by Mueller or his investigators were shocked at
Speaker 1: the amount of information they confronted them with. So now
Speaker 1: White House lawyer Ty Cobb actually who was Trump's lawyer,
Speaker 1: says that um he is going to be making the
Speaker 1: decision about whether or not Trump is going to sit
Speaker 1: for an interview with Mueller. What what are the possibilities here,
Speaker 1: because it seems like Mueller would not give into, you know,
Speaker 1: a written questions to take home exams sort of yeah,
Speaker 1: I agree with you. Um, Ultimately it's up to the client.
Speaker 1: I mean, it's up to the President of the United
Speaker 1: States whether he wants to do it. So Ty was
Speaker 1: giving him, certainly some some back cover. The President can say, well,
Speaker 1: my lawyer's told me not to do it, but you're right,
Speaker 1: Mueller is not going to agree to to take home
Speaker 1: exam and have the lawyers review the answers. If push
Speaker 1: comes to shove and you play this out at the
Speaker 1: game of chess, if the President says no, I'm not
Speaker 1: gonna sit down for an interview, now there's a fork
Speaker 1: in the road for Mueller. He can either walk away,
Speaker 1: which is not going to happen, or he can issue
Speaker 1: a grand jury subpoena. And now the courts are going
Speaker 1: to be involved because the President will trying to quash
Speaker 1: that subpoena, saying a president doesn't meant to sit before
Speaker 1: a grand jury, and the courts will be involved. There's
Speaker 1: president for UH presidents to be interviewed. President Clinton was
Speaker 1: interviewed in a lawsuit. So I think eventually this president
Speaker 1: is going to have to answer questions. It can be
Speaker 1: in an interview with Mueller's deputies and himself, or it
Speaker 1: can be before a grand jury. But sooner or later,
Speaker 1: he's gonna answer questions. I did a little research, and
Speaker 1: I could not find any instance where a president was
Speaker 1: successfully able to use executive privilege or some other legal
Speaker 1: construct to avoid either testifying before a grand jury or
Speaker 1: sitting down with investigators. Do you know of any instances
Speaker 1: where a court said no? And I think your research
Speaker 1: is spot on, especially when the case pertains to having
Speaker 1: the president be a subject. If if the rule was
Speaker 1: a president can basically avoid interviews with investigators or grand jury,
Speaker 1: then the you know the old adage that we all
Speaker 1: have that Noman is above the law, We're gonna have
Speaker 1: to rewrite that um. And so I think, eventually, again,
Speaker 1: if push comes to shove, testify and I don't think
Speaker 1: a court is going to save him, I have to
Speaker 1: say this remains continually interesting. There are always twists and turns,
Speaker 1: and but wouldn't you like to be a fly on
Speaker 1: the wall in Robert Mueller's office. I think most prosecutors
Speaker 1: who have been in the game for a while, I
Speaker 1: would love to have an interview with someone who just
Speaker 1: speaks and then worries about the truth later. That's a
Speaker 1: pretty good interview to have. Thanks so much for your insights, Jeff.
Speaker 1: That's Jeff Kramer. He's the managing director at the Berkeley
Speaker 1: Research Group, and he's a former federal and state prosecutor.
Speaker 1: States are starting to step up and defy the fccs
Speaker 1: repeal of net neutrality rules. New York has become the
Speaker 1: second state to try to restore net neutrality principles by
Speaker 1: taking action against broadband companies. On Wednesday, Governor Andrew Cuomo
Speaker 1: signed an executive order barring state agencies from doing business
Speaker 1: with Internet providers that block rivals web traffic or charge
Speaker 1: more for faster service, following a similar order from Montana's
Speaker 1: Governor Steve Bullock. Joining me is Daniel Lyons, professor at
Speaker 1: Boston College Law School Dan. When the FCC rescinded the
Speaker 1: Obama era net neutrality rules in December, it included a
Speaker 1: clause banning states from adopting their own standards. Do these
Speaker 1: executive orders get around that? So it's not entirely clear. Right.
Speaker 1: In one sense, this is better I think UM, in
Speaker 1: the sense of surviving litigation, better than the sort of
Speaker 1: litigation that's being considered in California, where the legislature is
Speaker 1: trying to directly require broadband providers to abide by the
Speaker 1: rules of the FEC repealed. My senses, those kinds of
Speaker 1: initiatives are probably preempted under the language of the UH
Speaker 1: the SEC Statute. But this executive order UM, focusing on
Speaker 1: procurement law, is an in run around I think may
Speaker 1: actually avoid the pre emption problem. And it does, however,
Speaker 1: face other issues. So the SEC has said it's going
Speaker 1: to take states to court over net neutrality. Do you
Speaker 1: expect that it will be legal battles that decide this issue?
Speaker 1: I do, UM, although I'm not I don't know whether
Speaker 1: it be the FEC who ends up acting or broadband
Speaker 1: providers that are subject to the UM the executive order writer. Now,
Speaker 1: groups representing broadband providers reacted with alarm to the prospect
Speaker 1: of state regulations, saying base really that there can be
Speaker 1: fifty different regulations governing the Internet. Do they have a point? Yeah?
Speaker 1: And I think that's actually the area where these types
Speaker 1: of issues are probably most vulnerable. First, one concern would
Speaker 1: be whether there's a state law on the books that
Speaker 1: prohibits the governor from attempting to regulate broadband. That's sort
Speaker 1: of a state by state issue. But secondly, there's a
Speaker 1: concern with the Dormant Commerce Clause, which is a constitutional
Speaker 1: doctrine that prohibits states from engaging in regulatory activity that
Speaker 1: would have an undoe influence on interstate UH conduct. The
Speaker 1: concern here is that UH, the Internet is not something
Speaker 1: that's easily segmented into a series of state by state networks,
Speaker 1: and attempts to do that to impose rule of law
Speaker 1: on New York as different than a rule of law
Speaker 1: in New Jersey or something like that would destroy some
Speaker 1: of the benefits we get from having one Internet and
Speaker 1: instead create a series of splinternets. So the best thing
Speaker 1: would be to have an aggressional law on this. Yeah, Certainly,
Speaker 1: the cleanest way for net neutrality proponents to overcome the
Speaker 1: SEC's rulemaking here is to adopt a statute that work
Speaker 1: nationwide that would clarify once and for all what the
Speaker 1: rules are with regard to broadband network management practices. You
Speaker 1: mentioned California. Are there other state legislatures that are considering
Speaker 1: different approaches, so I'm aware of the California has a
Speaker 1: couple of different approaches on the board. Montana also recently
Speaker 1: enacted in executive order similar to the one we see
Speaker 1: coming out of New York. I think the primary difference
Speaker 1: is that the Montana executive order impose requirements on broadband providers,
Speaker 1: both with regard to UH contracts, the way the broadband
Speaker 1: provider treats the state, and also the way it treats
Speaker 1: individual residents within the state of Montana. My reading of
Speaker 1: the New York executive order seems only to apply to
Speaker 1: contracts with regard to state agencies and making sure that
Speaker 1: state agencies are treated net neutral e doesn't, on its face,
Speaker 1: regulate the relationship between broadband providers and New York consumers. Well,
Speaker 1: someone have to police net neutrality. Tell us about a
Speaker 1: New York City Mayor Bill de Blasio's truth in Broadband proposal.
Speaker 1: So a big chunk of um the fight over net neutrality,
Speaker 1: even independently of how traffic gets managed right, One of
Speaker 1: the more important aspects is to make sure that whatever
Speaker 1: broadband providers are doing their open about it. One of
Speaker 1: the key instances that kicked off in that neutrality debate
Speaker 1: was a situation in two thousand eight when Comcast was
Speaker 1: interfering with bit torrent traffic, and Comcast added an argument
Speaker 1: as to why um IT needed to do so. But
Speaker 1: I think one of the things that rubbed the FEC
Speaker 1: the wrong way is that they weren't transparent about what
Speaker 1: they were doing. They tried to hide it, and when
Speaker 1: they were called out on it, UH, it looked really
Speaker 1: bad for them. One of the ways, and if you
Speaker 1: believe in a competitive marketplace like the current FCC does,
Speaker 1: one of the ways that you rely upon UH competition
Speaker 1: to discipline market actors is to make sure that consumers
Speaker 1: are making intelligent choices. So I think all aspects then,
Speaker 1: as part of I think what Mayor de Bosi is
Speaker 1: getting at, whatever it is that you're doing broadbanfort writers
Speaker 1: should make sure that they're disclosing it accurately to the public.
Speaker 1: To the public is making an intelligent choice among their providers.
Speaker 1: So speaking still of New York, Governor Cuomo's office compiled
Speaker 1: a list that said the telecommunication companies that do business
Speaker 1: with New York include A G and T, Verizon, and
Speaker 1: Frontier Communications explain how a rule in New York, which
Speaker 1: is such a large and populous state, would affect other states.
Speaker 1: So the question, which I don't know uh completely the
Speaker 1: answer too, because it's a little bit technical, is how
Speaker 1: easy it is for these broadband providers to segment their
Speaker 1: traffic the traffic that stays intrastate versus the traffic that
Speaker 1: crosses state lines. Right. Um, if it's possible for New
Speaker 1: York to for for providers that the New York to
Speaker 1: treat New York traffic differently than non New York traffic,
Speaker 1: then the argument for a dormant commerce cause prohibition is
Speaker 1: a little bit weaker. But it's a little bit difficult
Speaker 1: to discern that because the path by which information gets
Speaker 1: from point A to point B over the Internet is
Speaker 1: somewhat random. Right, packets travel over the fastest possible pathway
Speaker 1: at any given millisecond, and the way part of a
Speaker 1: message travels may be different than the way another part
Speaker 1: of the message travels. If it winds up being impossible
Speaker 1: or very very difficult to distinguish interestate from interstate traffic,
Speaker 1: then what it means is to comply with New York's requirement,
Speaker 1: broadband providers would have to uh treat traffic net utually,
Speaker 1: not just within New York but everywhere else in order
Speaker 1: to avoid the allegation that they're out of compliance with
Speaker 1: New York's requirement. And that's when dormant commerce cause concerns
Speaker 1: become an issue. Dan, we'll have to leave the dormant
Speaker 1: Karmace Claus commerce clause for a while. Thanks so much.
Speaker 1: That's Daniel Lyons, the professor at Boston College Law School.
Speaker 1: Thanks for listening to the Bloomberg Law Podcast. You can
Speaker 1: subscribe and listen to the show on Apple podcast, SoundCloud,
Speaker 1: and on Bloomberg dot com slash podcast. I'm June Brosso.
Speaker 1: This is Bloomberg