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Special Counsel Recalibrates Case Against Trump · Bloomberg Law

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  Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
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  Speaker 1: Special Council Jack Smith has recalibrated the indictment against former
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  Speaker 1: President Donald Trump for trying to overturn the twenty twenty
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  Speaker 1: election in order to comply with the Supreme Court's ruling
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  Speaker 1: giving presidents sweeping immunity for official acts. The superseding indictment
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  Speaker 1: reworks the language and removes some allegations, but the four
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  Speaker 1: criminal charges against Trump remain the same. Joining me is
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  Speaker 1: Dave Ahrenberg, Palm Beach County State Attorney. What do you
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  Speaker 1: make of the Special Council filing to restart basically both
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  Speaker 1: cases this week Monday and Tuesday, one two punch.
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  Speaker 2: Jack Smiths had to do what he had to do
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  Speaker 2: because the Supreme Court pushed him into this situation, and
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  Speaker 2: Judge Cannon in South Florida pushed him into this situation.
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  Speaker 2: So Jesus reacting to outside forces. This wasn't something that
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  Speaker 2: he wanted to do before the election to try to
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  Speaker 2: make it an election issue. He was just being a lawyer,
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  Speaker 2: following the evidence of the law and doing what the
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  Speaker 2: law required. And so I'm glad he did this because
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  Speaker 2: I've always thought that, at least in the DC election
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  Speaker 2: interference case, that the Supreme Courts immunity ruling really does
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  Speaker 2: not got the case at all. I mean, he had
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  Speaker 2: got to shave around the edges, but other than that,
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  Speaker 2: the heart of the case still remain.
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  Speaker 1: So you weren't surprised that the four charges are the same.
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  Speaker 2: No, No, I would be surprised. I ever, warn't the
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  Speaker 2: same because the only part of the DC election interference
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  Speaker 2: case that needed to be excised was any reference to
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  Speaker 2: Trump's alleged influence on the Department of Justice to try
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  Speaker 2: to pressure the States to redo the election, to accuse
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  Speaker 2: the election of being fraudulent, to threaten to remove the
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  Speaker 2: acting Attorney General unless he did Trump's bidding. That stuff,
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  Speaker 2: according to the Supreme Court's immunity decision, is all covered
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  Speaker 2: by presidential immunity because it's within his core duties to
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  Speaker 2: name an attorney general, to have an executive branch that
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  Speaker 2: works with and for him. So he's able to get
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  Speaker 2: away with that. Now if you think, well, Jeffrey Clark
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  Speaker 2: now is Scott free. No, Jeffrey Clark, who was allegedly
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  Speaker 2: the coup leader within the Department of Justice, could still
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  Speaker 2: face justice elsewhere. He was not even charged in the
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  Speaker 2: DC election interference case. Remember, one of the powerful things
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  Speaker 2: about the DC election interference case is that only Trump
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  Speaker 2: is charged there. That case was built for speed, and
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  Speaker 2: it's going to go first. I think after the election
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  Speaker 2: of Trump does not win.
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  Speaker 1: Chief Justice John Roberts in the immunity decision wrote that
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  Speaker 1: a president is at least presumptively immune from prosecution for
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  Speaker 1: his interactions with his vice president about constitutional duties, including
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  Speaker 1: the vice president's conduct in overseeing the Senate. Is that
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  Speaker 1: going to be the most perhaps problem part of the
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  Speaker 1: superseding indictment in that it keeps in evidence about Trump
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  Speaker 1: trying to pressure Pence into disrupting the electoral count.
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  Speaker 2: You know, I don't think so, June, because all of
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  Speaker 2: that can be overcome. It's a presumption of community. You
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  Speaker 2: just have to show that by prosecuting the president, it
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  Speaker 2: does not impinge upon the powers the official acts of
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  Speaker 2: a president. You don't want to diminish the powers of
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  Speaker 2: a president by going after a president for talking to
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  Speaker 2: his vice president. And the reason why he does not
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  Speaker 2: impinge upon the core powers of a president is because
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  Speaker 2: he was not talking to Vice President Pence as a
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  Speaker 2: member of his team. From a White House perspective, it
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  Speaker 2: was as a candidate for office, he was talking to
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  Speaker 2: Pence to help fix the election. He was talking to
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  Speaker 2: Pence as an office seeker, not an office holder. And also,
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  Speaker 2: in any event, Pence was acting as the President of
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  Speaker 2: the Senate, not as Vice presid per se. And so
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  Speaker 2: that's another way you get around it was that this
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  Speaker 2: does not hurt the powers of a president to say
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  Speaker 2: you're going to be held responsible for your improper communications
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  Speaker 2: with Mike Pence as the president of the Senate. Now,
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  Speaker 2: if you were talking to Mike Pence about foreign policy
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  Speaker 2: in his role as vice president, yes that would be protected.
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  Speaker 2: But not when it comes to Trump trying to overturn
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  Speaker 2: an election, which is nonofficial act as a candidate for president,
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  Speaker 2: not as the president as a candidate, and in so
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  Speaker 2: doing going after Mike Pence as the President of the Senate,
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  Speaker 2: not as vice president.
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  Speaker 1: They changed the tone of it by changing the wording.
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  Speaker 1: For example, in the first paragraph before it described Trump
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  Speaker 1: as the forty fifth president of the United States and
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  Speaker 1: a candidate for reelection in twenty twenty. This time it
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  Speaker 1: describes him just as a candidate for president of the
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  Speaker 1: United states in twenty twenty. Are those little fixes important.
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  Speaker 2: Yes, because they are emphasizing Trump as an office seeker,
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  Speaker 2: not as an office holder. They want to try to
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  Speaker 2: convince the future Appellate Court that Trump was not acting
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  Speaker 2: in its official capacity because this Supreme Court decision is
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  Speaker 2: broad and it is confusing. And Jack Smith went up
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  Speaker 2: and down the chain at DOJ, talking to the Solicitor
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  Speaker 2: General and others to come up with wording that they
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  Speaker 2: thought could pass muster. And I think that he did.
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  Speaker 1: The Supreme Court's opinion basically changing what people thought the
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  Speaker 1: law was. And yet there's very little guidance in that
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  Speaker 1: opinion for prosecutors going forward.
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  Speaker 2: Yeah, I think that opinion should have been revisited. It
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  Speaker 2: was confusing, it was way broader than necessary, and it's
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  Speaker 2: going to at some point, I think, be addressed again
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  Speaker 2: because of the confusion that's putting out there. I mean,
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  Speaker 2: I do think at some point, and maybe when there's
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  Speaker 2: change in the Supreme Court, that this decision will be reversed,
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  Speaker 2: just like others in the dustbin of history have been reversed,
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  Speaker 2: like Plenty versus ferguson Cooramatsu. There are a litany of
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  Speaker 2: dispad decisions that have been reversed over the years, and
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  Speaker 2: I think this will be one of them, because they
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  Speaker 2: took something that doesn't exist, a presidential unity. I mean,
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  Speaker 2: before this opinion, presidential community existed in the civil context,
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  Speaker 2: but not the criminal context. And the way they broaded
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  Speaker 2: gave the executive branch unprecedented powers, powers that never existed before.
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  Speaker 2: And it is set forth all this confusion that not
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  Speaker 2: only can you not prosecute a president for his official duties,
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  Speaker 2: and they've defined that very broadly, but you can't even
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  Speaker 2: get evidence of unofficial acts criminal unofficial acts by way
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  Speaker 2: of his official duties, meaning that you can't go and
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  Speaker 2: interview Department of Justice officials to find out that the
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  Speaker 2: president may have sold pardons for bribes. Right. So the
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  Speaker 2: way they've done is not just hurt prosecutors when they
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  Speaker 2: can't prosecute a president for official acts, but they have
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  Speaker 2: kneecapped prosecutors in their investigations where you can't even investigate
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  Speaker 2: a president when he's doing something within his official sphere,
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  Speaker 2: even if it involves a criminal act.
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  Speaker 1: Also, the revised indictment removed references to Trump's conversations with
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  Speaker 1: his White House aids and lawyers. In a brief accompanying
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  Speaker 1: the new in ditment, the prosecutors noted that the revised
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  Speaker 1: charges had been presented to a new grand jury that
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  Speaker 1: had not previously heard evidence in the case. Explain why
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  Speaker 1: that's important.
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  Speaker 2: The prosters are going to be really careful. They want
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  Speaker 2: to make sure that they are not going to risk
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  Speaker 2: getting overturned on appeal. And well, first of all, the
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  Speaker 2: old grand jury doesn't even exist. That's part of the problem.
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  Speaker 2: The old grand jury has been dismissed. They don't last
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  Speaker 2: two years. It's been dismissed by this point, so they
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  Speaker 2: had to go to a new grand jury. But also
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  Speaker 2: it's good to show that they got it to a
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  Speaker 2: fresh pair of eyes and that it wasn't painted by
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  Speaker 2: any bias from the last go around. Like there was
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  Speaker 2: an evidence presented to the grand jurors this time around
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  Speaker 2: that could not be eventually used in a trial. Because
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  Speaker 2: the Supreme Court limited the kind of evidence that you
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  Speaker 2: can use against a president. They've expanded, I mean, there's
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  Speaker 2: so much that it really does tie the hands of prosecutors.
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  Speaker 2: So the prosecutors understood this. They presented the limited evidence
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  Speaker 2: they're allowed to present evidence that one day could come
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  Speaker 2: out in court. They went before a new grand jury.
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  Speaker 2: There is no taint here from the prior grand jury,
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  Speaker 2: from the prior indictment, and I think it's a game on.
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  Speaker 1: Let's talk about what happens next. The two sides are
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  Speaker 1: going to present papers to Judge Chuckkin on Friday suggesting
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  Speaker 1: how they'd like to move forward, and then there will
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  Speaker 1: be a hearing next week. Will the defense object to
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  Speaker 1: the superseding indictment? And then we have more hearings. What
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  Speaker 1: do you think's next?
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  Speaker 2: Delay is their middle name. They're going to keep pursuing delays.
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  Speaker 2: They're going to say that this superseding indictment is meant
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  Speaker 2: to influence the election and it should be delayed. This
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  Speaker 2: is election interference, which is ironic because Trump is being
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  Speaker 2: accused of election interference. And they'll find creative ways to
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  Speaker 2: say that the indictment still violates the Supreme Court's mandates
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  Speaker 2: in the immunity decision, and then once they get a
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  Speaker 2: negative ruling from Judge chuck In, they're going to peel it.
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  Speaker 2: And yet they just want to force all this as
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  Speaker 2: much as possible. Ideally for them, they want this trial
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  Speaker 2: to take place half past never and I think that
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  Speaker 2: they'll get what they want. If Trump gets elected, Trump
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  Speaker 2: will just tell his new attorney general to dismiss everything.
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  Speaker 2: But if Trump loses in November, then this will be
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  Speaker 2: the first trial that he faces after the election.
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  Speaker 1: The Supreme Court directed Judge Chudkin to determine which allegations
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  Speaker 1: in the indictment involved official acts by Trump. Do you
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  Speaker 1: think that she can decide about this superseding indictment and
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  Speaker 1: whether it comports with the Supreme Court's decision without calling
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  Speaker 1: any witnesses.
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  Speaker 2: That's a really good question, because a lot of us
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  Speaker 2: expected her to have a mini trial, which would be
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  Speaker 2: an airing of the evidence. Mike Pence would get on
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  Speaker 2: the stand and it would be really compelling, and it
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  Speaker 2: would happened before the election, and the public would learn
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  Speaker 2: about Trump's involvement before, during, and after January sixth, even
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  Speaker 2: though there would be no trial until after the election.
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  Speaker 2: But according to recent report, Jack Smith and his team
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  Speaker 2: are not going to push forward for a mini trial. Ultimately,
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  Speaker 2: it's up to Judge Chuckin to decide. Judge Chuckin could
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  Speaker 2: decide that she can make these decisions based on the
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  Speaker 2: paperwork the pleadings. You don't need verbal testimony, but it
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  Speaker 2: will be up to the judge to decide. And then
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  Speaker 2: the question is when would it happen. Would it happen
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  Speaker 2: before the election or after? These are the questions out there.
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  Speaker 2: I think that you can do a mini trial before
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  Speaker 2: the election. Ultimately, the decision on whether to have a
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  Speaker 2: mini trial should be based on the evidence of the
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  Speaker 2: law and should have nothing to do with politics. You
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  Speaker 2: shouldn't be concerned that there's an election around the corner,
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  Speaker 2: and you shouldn't be concerned that people are going to
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  Speaker 2: interpret it as being political, because whether you do or
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  Speaker 2: you don't, you're going to be accused of being political
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  Speaker 2: in this day and age, in this political environment we have,
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  Speaker 2: you're always going to be accused of weaponizing the Department
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  Speaker 2: of Justice, even though you're not. So you just follow
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  Speaker 2: the evidence of the law and tune out the noise.
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  Speaker 1: But there is so much noise. Dave, thanks so much.
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  Speaker 1: As always, that's Palm Beach County State Attorney Dave Ehrenberg.
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  Speaker 1: The Supreme Court refused to reinstate President Biden's latest push
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  Speaker 1: to reduce student loan bills for millions of people, keeping
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  Speaker 1: the plan on whole while the legal fight over educational
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  Speaker 1: debt plays out. The court turned away an administrative request
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  Speaker 1: to lift a pause a federal appeals court imposed on
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  Speaker 1: the program in a lawsuit by Republican led states. The
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  Speaker 1: order didn't indicate that any justices dissented and gave no explanation,
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  Speaker 1: saying only that it expected the appeals court to issue
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  Speaker 1: a definitive ruling in the case quote with appropriate dispatch.
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  Speaker 1: And that's it for this edition of the Bloomberg Law Podcast.
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  Speaker 1: Remember you can always get the latest legal news by
• 11:41
  Speaker 1: subscribing and listening to the show on Apple Podcasts, Spotify,
• 11:45
  Speaker 1: and at Bloomberg dot com, Slash podcast, Slash Law. I'm
• 11:49
  Speaker 1: June Grosso, and this is Bloomberg