WEBVTT - Trump Reportedly Mulled Firing Mueller

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<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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<v Speaker 1>day we bring you insight and analysis into the most

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<v Speaker 1>important legal news of the day. You can find more

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<v Speaker 1>episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

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<v Speaker 1>and on Bloomberg dot com slash podcasts. President Donald Trump

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<v Speaker 1>wanted to fire a special counsel, Robert Muller and June.

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<v Speaker 1>According to three people familiar with the matter, Trump ultimately

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<v Speaker 1>relented after White House counsel Don McGan refused to carry

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<v Speaker 1>out the order and threatened to resign. Yesterday, Senator Mark Warner,

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<v Speaker 1>the top Democrat on the Intelligence Committee, issued a statement saying, quote,

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<v Speaker 1>firing the special counsel is a red line the president

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<v Speaker 1>cannot cross. That echoes the warning Warner gave on the

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<v Speaker 1>Senate floor in December. These truly are red lines and

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<v Speaker 1>simply cannot allow them to be crossed. As he arrived

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<v Speaker 1>in Davos, the President called the story fake news, echoing

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<v Speaker 1>denials he and his staff have been making for months

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

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<v Speaker 1>I mean, I've been reading about it from you people.

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<v Speaker 1>You say, oh, I'm going to dismiss him. No, I'm

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<v Speaker 1>not dismissing anybody. My guess is Jeffrey Kramer, managing director

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<v Speaker 1>at the Berkeley Research Group and a former federal prosecutor.

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<v Speaker 1>Jeff there have been reports that Trump was considering firing

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<v Speaker 1>Mueller for months. In fact, several Senators from both sides

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<v Speaker 1>of the aisle have proposed bills to protect Muller. So

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<v Speaker 1>why this shock from so many quarters about this story? Well,

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<v Speaker 1>I think this is the first time. Again, if the

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<v Speaker 1>reports are true, and what the reporting has, I think

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

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

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<v Speaker 1>confirmation or at least a little more than a rumor,

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<v Speaker 1>that he was thinking about not only fire, but may

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<v Speaker 1>have taken steps and asked his White House counsel to

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<v Speaker 1>reach out to d o J to do it, which

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<v Speaker 1>would be the mechanism. So I think it is a

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<v Speaker 1>bit of a sea change. So what would happen if

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

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<v Speaker 1>The president technically cannot fire Bob Mullard UH the d

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<v Speaker 1>o J ken and usually be the Attorney general, but

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<v Speaker 1>unfortunately here UH he has recused himself, so it's left

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<v Speaker 1>to the Deputy Attorney General. So Rod Rosenstein is the

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<v Speaker 1>only one who legally can fire Bob Muller, which is

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<v Speaker 1>why part of the reporting is that Mr Trump may

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<v Speaker 1>have asked McGann to reach out to Rod Rosenstein um.

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<v Speaker 1>But the problem is, at least from the President's standpoint,

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<v Speaker 1>according to Rosenstein and his testimony before Congress, he's fine

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<v Speaker 1>with Mueller. Mueller has to check in with him periodically

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<v Speaker 1>according the Special Council legislation, and he sees no reason

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<v Speaker 1>to fire him. So that's where the rubber hits the

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<v Speaker 1>road is with the Deputy Attorney General looking at what's

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<v Speaker 1>called the Senterated Night massacre. When President Nixon ordered the

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<v Speaker 1>Independent Special Counsel uh Independent Special Prosecutor Archibald Cox to

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<v Speaker 1>be fired. You'd say that if anything like that happened,

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<v Speaker 1>it would lead to impeach bent. But Trump has demonstrated

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<v Speaker 1>that he can get away with things that most presidents can.

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<v Speaker 1>And we've seen a Republican effort in the last few

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<v Speaker 1>months to knock Mueller's investigation as being partisan and to

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<v Speaker 1>you know, criticize the FBI. So what do you make

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<v Speaker 1>of that? Well, I mean, there are some certainly some similarities.

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<v Speaker 1>The differences ours as you just indicated, um times of change,

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<v Speaker 1>and you do see a politicalization, maybe more so than

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<v Speaker 1>even during the Nixon era, of Republicans repeatedly taking shots

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<v Speaker 1>at Mueller's investigation, at some of Mueller's team at the FBI,

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<v Speaker 1>it's been a pretty steady drumbeat, and I think that's

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<v Speaker 1>a concerted effort to minimize any results that Mueller brings,

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<v Speaker 1>be at an indictment or a report that goes to

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<v Speaker 1>Congress for possible uh impeachment proceedings, which is a is

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<v Speaker 1>a strictly political endeavor. It's not a criminal endeavor, it's

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<v Speaker 1>a legal endeavor. So I think it's a it's an

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<v Speaker 1>effort by the president's ally to minimize Mueller even before

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<v Speaker 1>any results are are before us. So, judging from the

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<v Speaker 1>people in Trump's inner circle that Mueller has called in,

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<v Speaker 1>Mueller seems to have gotten far in the obstruction phase

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<v Speaker 1>of the case. Is an interview with the president, which

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<v Speaker 1>is being talked about. The final step in that part

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<v Speaker 1>of the investigation. I think it is maybe a little

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<v Speaker 1>clean up here and there with other witnesses, but certainly

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<v Speaker 1>the president would be one of the last people that

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<v Speaker 1>his team would would interview. Interestingly, most investigations when they

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<v Speaker 1>go on, the public doesn't know what's going on, other

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<v Speaker 1>than maybe a little rumor here or there. In this case,

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<v Speaker 1>we know a fair we know a fair amount of

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<v Speaker 1>what of what Muller knows, albeit maybe a few months

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<v Speaker 1>behind the curve. UM, So I think there, you know,

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<v Speaker 1>could be some elements of obstruction, in which case, the

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<v Speaker 1>interview with the president, if it takes place, I'm still

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<v Speaker 1>convinced that somehow he's going to get out of it,

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<v Speaker 1>because the last thing his criminal lawyers want is a

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<v Speaker 1>free blowing interview with Mueller's prosecutors who are armed with

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<v Speaker 1>documents and having already interviewed dozens of witnesses and seeing

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<v Speaker 1>what their clients says as he says that they're going

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<v Speaker 1>to be learning it. That's not what the criminal defense

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<v Speaker 1>lawyers want to happen. And there are there are reports

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<v Speaker 1>that people who have been interviewed by Mueller were shocked

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<v Speaker 1>at the by Mueller or his investigators were shocked at

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<v Speaker 1>the amount of information they confronted them with. So now

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<v Speaker 1>White House lawyer Ty Cobb actually who was Trump's lawyer,

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<v Speaker 1>says that um he is going to be making the

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<v Speaker 1>decision about whether or not Trump is going to sit

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<v Speaker 1>for an interview with Mueller. What what are the possibilities here,

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<v Speaker 1>because it seems like Mueller would not give into, you know,

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<v Speaker 1>a written questions to take home exams sort of yeah,

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

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<v Speaker 1>I mean, it's up to the President of the United

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<v Speaker 1>States whether he wants to do it. So Ty was

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<v Speaker 1>giving him, certainly some some back cover. The President can say, well,

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

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<v Speaker 1>Mueller is not going to agree to to take home

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<v Speaker 1>exam and have the lawyers review the answers. If push

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<v Speaker 1>comes to shove and you play this out at the

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<v Speaker 1>game of chess, if the President says no, I'm not

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<v Speaker 1>gonna sit down for an interview, now there's a fork

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<v Speaker 1>in the road for Mueller. He can either walk away,

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<v Speaker 1>which is not going to happen, or he can issue

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<v Speaker 1>a grand jury subpoena. And now the courts are going

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<v Speaker 1>to be involved because the President will trying to quash

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<v Speaker 1>that subpoena, saying a president doesn't meant to sit before

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

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<v Speaker 1>president for UH presidents to be interviewed. President Clinton was

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<v Speaker 1>interviewed in a lawsuit. So I think eventually this president

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<v Speaker 1>is going to have to answer questions. It can be

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<v Speaker 1>in an interview with Mueller's deputies and himself, or it

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<v Speaker 1>can be before a grand jury. But sooner or later,

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

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<v Speaker 1>I could not find any instance where a president was

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<v Speaker 1>successfully able to use executive privilege or some other legal

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<v Speaker 1>construct to avoid either testifying before a grand jury or

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<v Speaker 1>sitting down with investigators. Do you know of any instances

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<v Speaker 1>where a court said no? And I think your research

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<v Speaker 1>is spot on, especially when the case pertains to having

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<v Speaker 1>the president be a subject. If if the rule was

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<v Speaker 1>a president can basically avoid interviews with investigators or grand jury,

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<v Speaker 1>then the you know the old adage that we all

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<v Speaker 1>have that Noman is above the law, We're gonna have

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<v Speaker 1>to rewrite that um. And so I think, eventually, again,

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<v Speaker 1>if push comes to shove, testify and I don't think

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<v Speaker 1>a court is going to save him, I have to

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<v Speaker 1>say this remains continually interesting. There are always twists and turns,

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<v Speaker 1>and but wouldn't you like to be a fly on

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<v Speaker 1>the wall in Robert Mueller's office. I think most prosecutors

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<v Speaker 1>who have been in the game for a while, I

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<v Speaker 1>would love to have an interview with someone who just

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<v Speaker 1>speaks and then worries about the truth later. That's a

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

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<v Speaker 1>That's Jeff Kramer. He's the managing director at the Berkeley

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<v Speaker 1>Research Group, and he's a former federal and state prosecutor.

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<v Speaker 1>States are starting to step up and defy the fccs

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<v Speaker 1>repeal of net neutrality rules. New York has become the

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<v Speaker 1>second state to try to restore net neutrality principles by

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<v Speaker 1>taking action against broadband companies. On Wednesday, Governor Andrew Cuomo

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<v Speaker 1>signed an executive order barring state agencies from doing business

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<v Speaker 1>with Internet providers that block rivals web traffic or charge

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<v Speaker 1>more for faster service, following a similar order from Montana's

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<v Speaker 1>Governor Steve Bullock. Joining me is Daniel Lyons, professor at

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<v Speaker 1>Boston College Law School Dan. When the FCC rescinded the

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<v Speaker 1>Obama era net neutrality rules in December, it included a

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<v Speaker 1>clause banning states from adopting their own standards. Do these

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

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<v Speaker 1>In one sense, this is better I think UM, in

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<v Speaker 1>the sense of surviving litigation, better than the sort of

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<v Speaker 1>litigation that's being considered in California, where the legislature is

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<v Speaker 1>trying to directly require broadband providers to abide by the

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<v Speaker 1>rules of the FEC repealed. My senses, those kinds of

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<v Speaker 1>initiatives are probably preempted under the language of the UH

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<v Speaker 1>the SEC Statute. But this executive order UM, focusing on

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<v Speaker 1>procurement law, is an in run around I think may

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<v Speaker 1>actually avoid the pre emption problem. And it does, however,

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<v Speaker 1>face other issues. So the SEC has said it's going

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<v Speaker 1>to take states to court over net neutrality. Do you

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<v Speaker 1>expect that it will be legal battles that decide this issue?

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<v Speaker 1>I do, UM, although I'm not I don't know whether

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<v Speaker 1>it be the FEC who ends up acting or broadband

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<v Speaker 1>providers that are subject to the UM the executive order writer. Now,

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<v Speaker 1>groups representing broadband providers reacted with alarm to the prospect

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<v Speaker 1>of state regulations, saying base really that there can be

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

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<v Speaker 1>And I think that's actually the area where these types

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<v Speaker 1>of issues are probably most vulnerable. First, one concern would

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<v Speaker 1>be whether there's a state law on the books that

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<v Speaker 1>prohibits the governor from attempting to regulate broadband. That's sort

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<v Speaker 1>of a state by state issue. But secondly, there's a

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<v Speaker 1>concern with the Dormant Commerce Clause, which is a constitutional

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<v Speaker 1>doctrine that prohibits states from engaging in regulatory activity that

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<v Speaker 1>would have an undoe influence on interstate UH conduct. The

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<v Speaker 1>concern here is that UH, the Internet is not something

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<v Speaker 1>that's easily segmented into a series of state by state networks,

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<v Speaker 1>and attempts to do that to impose rule of law

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<v Speaker 1>on New York as different than a rule of law

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<v Speaker 1>in New Jersey or something like that would destroy some

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<v Speaker 1>of the benefits we get from having one Internet and

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<v Speaker 1>instead create a series of splinternets. So the best thing

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<v Speaker 1>would be to have an aggressional law on this. Yeah, Certainly,

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<v Speaker 1>the cleanest way for net neutrality proponents to overcome the

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<v Speaker 1>SEC's rulemaking here is to adopt a statute that work

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<v Speaker 1>nationwide that would clarify once and for all what the

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<v Speaker 1>rules are with regard to broadband network management practices. You

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<v Speaker 1>mentioned California. Are there other state legislatures that are considering

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<v Speaker 1>different approaches, so I'm aware of the California has a

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<v Speaker 1>couple of different approaches on the board. Montana also recently

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<v Speaker 1>enacted in executive order similar to the one we see

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<v Speaker 1>coming out of New York. I think the primary difference

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<v Speaker 1>is that the Montana executive order impose requirements on broadband providers,

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<v Speaker 1>both with regard to UH contracts, the way the broadband

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<v Speaker 1>provider treats the state, and also the way it treats

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<v Speaker 1>individual residents within the state of Montana. My reading of

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<v Speaker 1>the New York executive order seems only to apply to

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<v Speaker 1>contracts with regard to state agencies and making sure that

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

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<v Speaker 1>regulate the relationship between broadband providers and New York consumers. Well,

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<v Speaker 1>someone have to police net neutrality. Tell us about a

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

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<v Speaker 1>So a big chunk of um the fight over net neutrality,

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<v Speaker 1>even independently of how traffic gets managed right, One of

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<v Speaker 1>the more important aspects is to make sure that whatever

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<v Speaker 1>broadband providers are doing their open about it. One of

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<v Speaker 1>the key instances that kicked off in that neutrality debate

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<v Speaker 1>was a situation in two thousand eight when Comcast was

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<v Speaker 1>interfering with bit torrent traffic, and Comcast added an argument

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<v Speaker 1>as to why um IT needed to do so. But

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<v Speaker 1>I think one of the things that rubbed the FEC

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<v Speaker 1>the wrong way is that they weren't transparent about what

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<v Speaker 1>they were doing. They tried to hide it, and when

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<v Speaker 1>they were called out on it, UH, it looked really

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<v Speaker 1>bad for them. One of the ways, and if you

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<v Speaker 1>believe in a competitive marketplace like the current FCC does,

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<v Speaker 1>one of the ways that you rely upon UH competition

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<v Speaker 1>to discipline market actors is to make sure that consumers

0:13:05.880 --> 0:13:09.120
<v Speaker 1>are making intelligent choices. So I think all aspects then,

0:13:09.160 --> 0:13:10.760
<v Speaker 1>as part of I think what Mayor de Bosi is

0:13:10.800 --> 0:13:13.840
<v Speaker 1>getting at, whatever it is that you're doing broadbanfort writers

0:13:13.840 --> 0:13:16.120
<v Speaker 1>should make sure that they're disclosing it accurately to the public.

0:13:16.160 --> 0:13:19.600
<v Speaker 1>To the public is making an intelligent choice among their providers.

0:13:19.640 --> 0:13:23.680
<v Speaker 1>So speaking still of New York, Governor Cuomo's office compiled

0:13:23.679 --> 0:13:27.000
<v Speaker 1>a list that said the telecommunication companies that do business

0:13:27.080 --> 0:13:30.160
<v Speaker 1>with New York include A G and T, Verizon, and

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<v Speaker 1>Frontier Communications explain how a rule in New York, which

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<v Speaker 1>is such a large and populous state, would affect other states.

0:13:40.720 --> 0:13:44.520
<v Speaker 1>So the question, which I don't know uh completely the

0:13:44.520 --> 0:13:46.440
<v Speaker 1>answer too, because it's a little bit technical, is how

0:13:46.480 --> 0:13:50.200
<v Speaker 1>easy it is for these broadband providers to segment their

0:13:50.280 --> 0:13:53.120
<v Speaker 1>traffic the traffic that stays intrastate versus the traffic that

0:13:53.120 --> 0:13:57.600
<v Speaker 1>crosses state lines. Right. Um, if it's possible for New

0:13:57.679 --> 0:14:00.560
<v Speaker 1>York to for for providers that the New York to

0:14:00.640 --> 0:14:04.160
<v Speaker 1>treat New York traffic differently than non New York traffic,

0:14:04.559 --> 0:14:08.400
<v Speaker 1>then the argument for a dormant commerce cause prohibition is

0:14:08.400 --> 0:14:11.079
<v Speaker 1>a little bit weaker. But it's a little bit difficult

0:14:11.120 --> 0:14:14.400
<v Speaker 1>to discern that because the path by which information gets

0:14:14.400 --> 0:14:16.280
<v Speaker 1>from point A to point B over the Internet is

0:14:16.640 --> 0:14:22.200
<v Speaker 1>somewhat random. Right, packets travel over the fastest possible pathway

0:14:22.200 --> 0:14:24.440
<v Speaker 1>at any given millisecond, and the way part of a

0:14:24.480 --> 0:14:27.800
<v Speaker 1>message travels may be different than the way another part

0:14:27.840 --> 0:14:30.840
<v Speaker 1>of the message travels. If it winds up being impossible

0:14:30.920 --> 0:14:34.600
<v Speaker 1>or very very difficult to distinguish interestate from interstate traffic,

0:14:34.640 --> 0:14:37.480
<v Speaker 1>then what it means is to comply with New York's requirement,

0:14:37.520 --> 0:14:42.200
<v Speaker 1>broadband providers would have to uh treat traffic net utually,

0:14:42.200 --> 0:14:44.320
<v Speaker 1>not just within New York but everywhere else in order

0:14:44.320 --> 0:14:47.320
<v Speaker 1>to avoid the allegation that they're out of compliance with

0:14:47.360 --> 0:14:50.480
<v Speaker 1>New York's requirement. And that's when dormant commerce cause concerns

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

0:14:53.480 --> 0:14:56.360
<v Speaker 1>Karmace Claus commerce clause for a while. Thanks so much.

0:14:56.360 --> 0:14:59.320
<v Speaker 1>That's Daniel Lyons, the professor at Boston College Law School.

0:14:59.600 --> 0:15:02.520
<v Speaker 1>Thanks for listening to the Bloomberg Law Podcast. You can

0:15:02.560 --> 0:15:06.320
<v Speaker 1>subscribe and listen to the show on Apple podcast, SoundCloud,

0:15:06.400 --> 0:15:10.280
<v Speaker 1>and on Bloomberg dot com slash podcast. I'm June Brosso.

0:15:10.760 --> 0:15:12.040
<v Speaker 1>This is Bloomberg