Latest / Bloomberg Law / Weekend Law: Trump Tests LImits, FBI Agents Sue & Antitrust First

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Weekend Law: Trump Tests LImits, FBI Agents Sue & Antitrust First · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 2: The headline is that Musk has your data, that Musk
0:12
Speaker 2: has control of the systems as a Treasury appointee.
0:16
Speaker 3: That is unfathomable.
0:17
Speaker 2: The extraordinary empowerment of Elon Musk by Donald Trump is
0:22
Speaker 2: a headline that keeps repeating. Alarm bells rang after Musk
0:26
Speaker 2: and his young deputies gained access to the Treasury Department's
0:30
Speaker 2: computer network, where the private financial data of nearly every
0:34
Speaker 2: American is stored. That means names, phone numbers, social security information,
0:40
Speaker 2: and bank information. Many Democratic members of Congress, like Senator
0:45
Speaker 2: Mark Warner of Virginia and Representative Ayanna Presley of Massachusetts,
0:50
Speaker 2: joined protests this week in d c against the world's
0:54
Speaker 2: richest man and his Department of Government efficiency.
0:58
Speaker 4: You've got we don't know anything about, looking at potentially
1:04
Speaker 4: all of our personal information, all of the money flows
1:09
Speaker 4: that go out of Treasury. The Banking Committee needs to
1:13
Speaker 4: bring up the dose folks who are illegally in Treasury
1:18
Speaker 4: and have them testify. I am so tired of these
1:23
Speaker 4: billionaire boys in their grubby.
1:26
Speaker 2: Little hands, Treasury Secretary Scott Bessen told Bloomberg it was
1:31
Speaker 2: a lot of misinformation.
1:33
Speaker 5: There is no tinkering with the system. They are on
1:37
Speaker 5: read only. They are looking. They can make no changes.
1:42
Speaker 5: It is an operational program to suggest improvement.
1:45
Speaker 2: Nevertheless, a DC federal judge placed temporary limits on Doze's
1:50
Speaker 2: access after a group of unions sued. So far, the
1:54
Speaker 2: courts have been the only restraint on the Trump administration,
1:58
Speaker 2: with judges issuing a mere of court orders this week, delaying, limiting,
2:03
Speaker 2: or outright blocking Trump's actions. My guest is an expert
2:07
Speaker 2: in constitutional law, Harold Krent, a professor at the Chicago
2:11
Speaker 2: Kent College of Law. How at this point does it
2:14
Speaker 2: seem as if Trump is issuing these executive orders without
2:19
Speaker 2: any consideration of their legality?
2:22
Speaker 6: In my mind, he's acting with respects of the law,
2:25
Speaker 6: sort of the way he is with respect to foreign policy,
2:28
Speaker 6: and the way he did with business or which was
2:30
Speaker 6: to start out dramatically asking for the moon, frightening everybody,
2:35
Speaker 6: and then slowly chipping away at demands. And it's proved
2:39
Speaker 6: effective in business to a large extent. I don't know
2:43
Speaker 6: how effective it'll be with tariffs and other kinds of
2:46
Speaker 6: international relations, and I think it'll be slightly effective with
2:50
Speaker 6: respect to legal challenges as well.
2:52
Speaker 2: Let's turn to musk sweeping moves to downsize the federal government.
2:56
Speaker 2: He orchestrated a physical takeover of the US US Agency
3:01
Speaker 2: for International Development, which he's trying to shudder. His people
3:05
Speaker 2: are doing who knows what, not only a treasury, but
3:08
Speaker 2: at the Department of Education, the Department of Labor, et cetera.
3:12
Speaker 2: Trump did sign an executive order giving Musk's workers unfettered
3:18
Speaker 2: access to government agencies. But as a professor once told me,
3:22
Speaker 2: executive orders are just pieces of paper.
3:24
Speaker 6: Yeah, in so many areas, there's a level of violations
3:28
Speaker 6: of congressional enactments. Some are more egregious than others, some
3:31
Speaker 6: are subtle. I mean, the role of Musk as a
3:35
Speaker 6: special governmental employee at this time is one of those
3:38
Speaker 6: gray areas, because there is a role for special governmental
3:40
Speaker 6: employee that can assume powers for a limited period of time,
3:44
Speaker 6: and so far obviously Musk has not exceeded that. But
3:47
Speaker 6: in terms of what he's actually done, there appears to
3:50
Speaker 6: be violation differences of the privacy actedturas are getting access
3:54
Speaker 6: of all those Social Security numbers. That's a pretty good indication.
3:58
Speaker 6: And of course the USAID was set up by Congress,
4:01
Speaker 6: So a presidential order cannot dismantle an agency that's been
4:06
Speaker 6: chartered by Congress. So I think there's a spectrum of action.
4:10
Speaker 6: Some appear to be clearly unconstitutional, like the birthrate Citizenship Order.
4:15
Speaker 6: Some are closer in question. There's another lawsuit that was
4:19
Speaker 6: stiled gave against Chicago or its sanctuaries city policies. I
4:24
Speaker 6: think it's a closer call in terms of where you
4:26
Speaker 6: draw the line. So there's just a lot that's being
4:29
Speaker 6: thrown up against the wall, but some have some merit,
4:33
Speaker 6: and it's going to take a while for the courts
4:35
Speaker 6: to unravel. That we haven't mentioned yet, the whole challenge
4:38
Speaker 6: to the independent agencies, since he's fired a member of
4:42
Speaker 6: the National Labor Relations Board, which is an independent agency
4:45
Speaker 6: that I think has a chance of success ultimately a
4:47
Speaker 6: Supreme Court, given what the Supreme Court has said previously.
4:51
Speaker 6: But whether Trump then can take the next step and
4:55
Speaker 6: try to get rid of civil service, I'm far more
4:57
Speaker 6: dubious about that.
4:59
Speaker 2: Also, it seems like there's absolutely no oversight. In a
5:02
Speaker 2: sort of Friday night massacre, he fired the inspectors general
5:06
Speaker 2: for at least seventeen agencies.
5:09
Speaker 6: Well, Congress has a structure in place that allows for
5:14
Speaker 6: dismissal of the spector generals, but Trump didn't follow it,
5:19
Speaker 6: So in that sense, obviously the resort is to court.
5:22
Speaker 4: Again.
5:23
Speaker 6: We'll have to wait see things play out. But I
5:25
Speaker 6: think what's really frightening is not just that the Doge
5:29
Speaker 6: got the private information. The question is what do they
5:32
Speaker 6: really want to do with it? Do they really want
5:34
Speaker 6: to just make the government more efficient and make sure
5:37
Speaker 6: payments aren't going to the wrong people. That's one thing.
5:41
Speaker 6: It's another thing to have kind of a deep state
5:44
Speaker 6: and have big Brother watching everything we do because we
5:47
Speaker 6: all have personal identifiers, and that must people may be
5:51
Speaker 6: sort of tacking on to these personal identifiers other kinds
5:54
Speaker 6: of individual indications for statistics, which gives rise to kind
5:58
Speaker 6: of Chinese type of big government watching all of us.
6:02
Speaker 6: We're not there yet, but that is at least one step.
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Speaker 3: Of the way.
6:06
Speaker 2: By the way, I do want to mention that one
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Speaker 2: of those two Musk employees at Treasury resigned on Thursday
6:14
Speaker 2: after some of his social media posts were described as racist.
6:18
Speaker 2: There's also a lot of controversy and a lawsuit over
6:21
Speaker 2: what's been called buyout offers for some two million federal employees.
6:26
Speaker 2: They're not really buyout offers. They're more like deferred resignation offers.
6:32
Speaker 2: So dose emailed federal employees to resign and be paid
6:36
Speaker 2: until the end of September or risk losing their jobs.
6:41
Speaker 2: There are problems with this offer because a there's a
6:44
Speaker 2: federal rule that administrative leave can only be used for
6:47
Speaker 2: ten working days a year, and b the government hasn't
6:52
Speaker 2: been funded past March fourteenth.
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Speaker 6: On this level, I think that's the action. Amisation is
6:57
Speaker 6: probably legal, just like any other kind of buyouts. And yes,
7:01
Speaker 6: there are issues about what happens if funding drives out
7:05
Speaker 6: in terms of paying these settlements, and maybe they'll be
7:07
Speaker 6: able to use some of the money from somewhere else
7:10
Speaker 6: to pay the settlements going forward, if that part is
7:13
Speaker 6: obviously unclear, that the idea in basic of saying to
7:17
Speaker 6: a federal employee, you have a right under civil service
7:20
Speaker 6: to continue your job, but we will give you an
7:22
Speaker 6: incentive to leave early, and when some of them were
7:25
Speaker 6: planning to leave anyway, I think that probably is closer
7:28
Speaker 6: to the legal line in comparison to some of the
7:31
Speaker 6: other moves the administration has been making. I mean, maybe
7:33
Speaker 6: there are some procedural issues that I'm not aware of
7:36
Speaker 6: that the SPORT will look to to try to stop
7:39
Speaker 6: the buyout, you know, questions of again, can you bind
7:43
Speaker 6: the federal government to make these payments when there is
7:47
Speaker 6: not continuing funding? You know, I think that lots of
7:50
Speaker 6: issues are contingent upon continual funding by the government and
7:54
Speaker 6: not hitting the debt fealing, et cetera. But again, in
7:57
Speaker 6: comparison to the other moves that we've been seeing in
8:00
Speaker 6: terms of discharge of general, the discharge of the pediven LRB,
8:05
Speaker 6: that's dismantling of AID, I think this is far less
8:08
Speaker 6: concerning than some of the other moves the Trump administration
8:11
Speaker 6: is making.
8:12
Speaker 2: We should find out more about this on Monday, because
8:15
Speaker 2: a Massachusetts judge has temporarily paused the buyout offer until
8:20
Speaker 2: a hearing on Monday. The court seemed to be the
8:23
Speaker 2: only impediment to Trump's executive orders, some of which are
8:27
Speaker 2: clearly beyond his presidential power, like the funding freeze and
8:32
Speaker 2: the ending of birthright citizenship. This week, two federal judges,
8:37
Speaker 2: one in Seattle and one in Maryland, block Trump's birthright
8:41
Speaker 2: citizenship order, and Seattle judge John Kunauer accused Trump of
8:46
Speaker 2: trying to change the constitution.
8:49
Speaker 1: There are moments in the world's history when people look
8:53
Speaker 1: back and ask where were the lawyers? Where were the judges?
8:57
Speaker 1: In these moments, the rule of law becomes a specially
9:00
Speaker 1: vulnerable I refuse to let that be can go dark today.
9:05
Speaker 6: Yeah, and the big picture is are the guard RILs
9:07
Speaker 6: going to come from nowhere? Or are they going to
9:10
Speaker 6: come from the court or from Congress? Ultimately, and members
9:13
Speaker 6: of the Republican Congress idly going to say, you know,
9:16
Speaker 6: we were elected to do an independent job, and the
9:20
Speaker 6: president has taken away our legislative authority. We don't know
9:23
Speaker 6: where the guardils are going to come, and we just
9:25
Speaker 6: have to hope that one of those two branches will
9:28
Speaker 6: be able to step up and limit some of the
9:31
Speaker 6: cruiter moves that the administration is already taken.
9:35
Speaker 2: Speaking of courts, let's talk about the Supreme Court. On
9:39
Speaker 2: the last day of the last term, the court issued
9:42
Speaker 2: that controversial decision giving presidents immunity from prosecution for official acts.
9:49
Speaker 2: A lot of the conservative Supreme Court justices also ascribed
9:54
Speaker 2: to the unitary executive theory, under which the president has
9:58
Speaker 2: sole authority over the executsative branch, and then of course,
10:02
Speaker 2: the Court has been sort of taking a sledgehammer to
10:05
Speaker 2: agency power. So what do you think will the Supreme
10:08
Speaker 2: Court be supportive of Trump? They were not in his
10:11
Speaker 2: last term, but they were this last year.
10:15
Speaker 6: Absolutely. I mean, I think that community decision is a
10:17
Speaker 6: one off. It's a terrible decision for what the Court
10:20
Speaker 6: will do in the future. But the Court has adopted,
10:23
Speaker 6: as you mentioned, the form of the unitary executive Authority,
10:26
Speaker 6: which means the president should be able to fire any
10:29
Speaker 6: policy maker at will in order to make sure that
10:33
Speaker 6: all actions that are final of the government can be
10:35
Speaker 6: traced to the president. So I would not be surprised
10:38
Speaker 6: if the Court is sympathetic with respect to giving the
10:41
Speaker 6: power to the president to fire agency head officials, including
10:46
Speaker 6: most fighting We need the head of the FED, because
10:49
Speaker 6: that's just another type of policy that's being administered by
10:53
Speaker 6: right now, an independent agency head. But I don't think
10:57
Speaker 6: that even if the Supreme Court takes that step, they
11:00
Speaker 6: will expand the unitary to say that the civil service
11:05
Speaker 6: is an unconstitutional Many unions right now public employee beings
11:09
Speaker 6: are very concerned that the next objective of the Trump
11:14
Speaker 6: administration will put the civil service in the cross hears,
11:18
Speaker 6: and I think the court will be sympathetic to the
11:21
Speaker 6: principles under civil service.
11:23
Speaker 2: Of course, Trump is going to keep appealing to the
11:26
Speaker 2: Supreme Court. That's been his pattern. But it'll be interesting
11:30
Speaker 2: to see how many of these cases the justices actually
11:34
Speaker 2: decide to take. Thanks so much. How that's Professor Harold
11:38
Speaker 2: Krent of the Chicago Kent College of Law coming up
11:41
Speaker 2: next on the Bloomberg Law Show. Why FBI agents are
11:45
Speaker 2: suing the Justice Department. I'm June Grosso and you're listening
11:49
Speaker 2: to Bloomberg time and time again. Donald Trump has promised
11:55
Speaker 2: to exact revenge against those involved in the cases against him.
12:00
Speaker 7: Look, when this election is over, based on what they've done,
12:06
Speaker 7: I would have every right to go after them. And
12:09
Speaker 7: it's easy and sometimes revenge can be justified, though, I
12:14
Speaker 7: have to be honest, you know, sometimes it can.
12:16
Speaker 2: And the President seems to be keeping those promises with
12:20
Speaker 2: purges at the FBI and Justice Department, where dozens of
12:24
Speaker 2: senior career officials have been pushed out and thousands more
12:28
Speaker 2: FBI agents may follow them out the door. Because the
12:32
Speaker 2: Justice Department has had a list compiled of all bureau
12:35
Speaker 2: employees who worked on the criminal investigations into Trump or
12:40
Speaker 2: the January sixth riots, to quote determine whether any additional
12:45
Speaker 2: personnel actions are necessary. So two groups of FBI agents
12:51
Speaker 2: went to federal court to prevent the government from disclosing
12:54
Speaker 2: the names on that list, fearing it could lead to
12:57
Speaker 2: retaliation against them. After all, January sixth rioters who were
13:02
Speaker 2: pardoned by Trump have already taken to social media, identifying
13:07
Speaker 2: prosecutors and agents who worked on their cases and making threats.
13:12
Speaker 6: But I will tell you now, it's our church.
13:17
Speaker 2: One of the lawsuits cites these comments by Enrique Tario,
13:21
Speaker 2: the former leader of the Proud Boys, who was serving
13:24
Speaker 2: a twenty two year sentence before his pardon.
13:27
Speaker 6: The people who did this, they need to feel the heat.
13:30
Speaker 6: They need to be put behind bars.
13:33
Speaker 2: At a hearing before DC Federal Judge Giacab on Friday,
13:37
Speaker 2: the US government agreed not to make that list of
13:40
Speaker 2: FBI employees public, either directly or indirectly, until the judge
13:46
Speaker 2: rules on the merits of the lawsuits, so a temporary solution.
13:51
Speaker 2: My guest is national security law expert Brad Moss, a
13:54
Speaker 2: partner at Mark Zaid. He represents the seven FBI agents
13:58
Speaker 2: and the FBI Agents Association in their lawsuit against the
14:02
Speaker 2: Justice Department, rad tell us what's been happening at the FBI.
14:06
Speaker 3: So what's been transpiring at the moment with the FBI
14:10
Speaker 3: and the Justice Department is that a set of instructions
14:13
Speaker 3: came down from the White House pretty much starting from
14:16
Speaker 3: day one, to identify everyone involved and associated with the
14:21
Speaker 3: prosecutions and investigations not only into Donald Trump, but also
14:26
Speaker 3: everyone who was prosecuted for the January sixth riots and
14:30
Speaker 3: the seditious attempts. The set of prosecutors from the January
14:35
Speaker 3: six cases that specifically were on Jack Smith's team that
14:38
Speaker 3: went after Donald Trump. Those individuals apparently were already fired
14:42
Speaker 3: without cause, which is something that will likely be subject
14:45
Speaker 3: to litigation. But the more immediate and more widespread concern
14:49
Speaker 3: is that the Just Department ordered the FBI to compile
14:53
Speaker 3: a list identify everyone within the FBI. Special Agents Technical
14:58
Speaker 3: Assistance supports that Fredericks xameters everything to pile list and
15:03
Speaker 3: send it to the Justice Department to identify everyone involved
15:07
Speaker 3: in any of the January sixth investigations and prosecutions. With
15:12
Speaker 3: the obvious concern being not only this, it is going
15:14
Speaker 3: to be shared with the Just Department, but also with
15:17
Speaker 3: the White House, and that these names will be made public.
15:20
Speaker 3: The lawsuits that were filed, there's two different lawsuits, one
15:23
Speaker 3: of which I'm a list of attorney on are designed
15:26
Speaker 3: to keep those names of those FBI personnel private and anonymous,
15:31
Speaker 3: just like it's always done for government officials who are
15:35
Speaker 3: not otherwise public facing individuals.
15:38
Speaker 2: And the FBI has already turned over to the Justice
15:41
Speaker 2: Department that list of some five thousand FBI employees who
15:47
Speaker 2: worked on the criminal investigations into Trump or January sixth.
15:52
Speaker 3: This remains the concern is what is the purpose of this,
15:56
Speaker 3: where are they going with this, and what is the
15:58
Speaker 3: White House plan to do with this information, because remember
16:01
Speaker 3: one of the first things Donald Trump did was pardon
16:03
Speaker 3: everyone convicted further actions tied to January sixth, including the
16:08
Speaker 3: Proud Boys, including the Healthkeepers, all these violent militants who
16:12
Speaker 3: had gone in with a plan to take down the
16:14
Speaker 3: government to install Donald Trump after he lost in twenty twenty.
16:19
Speaker 3: Those individuals are now publicly threatening the FBI officials who
16:22
Speaker 3: went after them and who investigated them as part of
16:25
Speaker 3: those prosecutions, and there's a real threat to those FBI officials'
16:29
Speaker 3: lives and their safety to see their family members if
16:32
Speaker 3: their names get released in.
16:34
Speaker 2: Your lawsuit, are you concerned about dismissals or are you
16:38
Speaker 2: only concerned about retaliation?
16:41
Speaker 3: Right now, this is strictly about keeping the anonymity of
16:44
Speaker 3: the names of these various officials because no other action
16:49
Speaker 3: has been taken to actually fire these personnel. We're not
16:53
Speaker 3: there yet on bringing a challenge to it. It's premature.
16:58
Speaker 3: If DOJ does go through that, if there is a
17:01
Speaker 3: mass purge of personnel, our lawsuit could obviously be amended
17:06
Speaker 3: and updated to address that as well.
17:08
Speaker 2: Let's talk about the grounds for your suit. Are you
17:11
Speaker 2: suing under the First Amendment and the Federal Privacy Act?
17:15
Speaker 8: So?
17:15
Speaker 3: Yeah, the First and Fifth Amendment constitutional protections due process
17:19
Speaker 3: for these individuals, particularly the stigma of being defamed essentially
17:24
Speaker 3: an accused of miscarriage of justice by the White House
17:27
Speaker 3: if their names are publicly released. First Amendment retaliation in
17:31
Speaker 3: the sense that this is all about the fact that
17:33
Speaker 3: they are not politically aligned and ideologically aligned with the
17:37
Speaker 3: White House, which for civil servants is not something they're
17:39
Speaker 3: supposed to be doing. They're not supposed to be political.
17:42
Speaker 3: But also the Privacy Act, which puts strict limits on
17:45
Speaker 3: what agencies can do with the personal identifying information of
17:50
Speaker 3: personnel and where it can and cannot be disseminated absent
17:55
Speaker 3: employee consent, which, to be clear, these personnel are not
17:58
Speaker 3: giving their consent for this personal identifying information to be
18:02
Speaker 3: disseminated outside of the FBI, let alone to the public.
18:06
Speaker 2: I'm curious about whether a lot of people from the
18:09
Speaker 2: FBI have approached you with their concerns about this.
18:13
Speaker 3: So we've been approached by a myriad an untold number
18:16
Speaker 3: of personnel across the FBI, not just in DC, but
18:20
Speaker 3: across the country who we are representing as a part
18:23
Speaker 3: of this collective group. There is a select number of
18:26
Speaker 3: individuals who have agreed to be the plaintiffs in this action.
18:30
Speaker 3: We're keeping their identities protected at the moment that the
18:33
Speaker 3: court agreed to allow them to proceed as John Doe's
18:36
Speaker 3: and Jane does for now. We're also working to make
18:39
Speaker 3: sure to try to keep their identities secret from the
18:43
Speaker 3: government itself, sadly to try to prevent and avoid retaliation
18:48
Speaker 3: for having engaged in this section. But also the Agent
18:51
Speaker 3: Association is also a listed plaintiff, which represents agents across
18:55
Speaker 3: the country and has an obvious organizational interest in protecting
18:59
Speaker 3: it's personnel from this political retribution. We want this addressed immediately.
19:05
Speaker 3: We cannot wait with the way this administration is moving
19:09
Speaker 3: and just this reckless, you know, move fast and break
19:12
Speaker 3: things attitude that Elon Musk and Donald Trump have. Time
19:16
Speaker 3: is of the essence, and every day that passes is
19:19
Speaker 3: another day that these names could be disseminated to the public.
19:22
Speaker 3: So everything is about moving quickly right now to halt
19:26
Speaker 3: any dissemination until these legal issues can be resolved through
19:30
Speaker 3: standard briefing.
19:31
Speaker 2: There have been accusations from former Trump officials that FBI
19:35
Speaker 2: agents went beyond their authority when they executed the search
19:40
Speaker 2: warrants at Mara Lago. Was there any litigation or court
19:43
Speaker 2: decisions about those accusations.
19:46
Speaker 3: There is no merit to that. Every challenge regarding the
19:50
Speaker 3: lawfulness of the effidavits, the lawfulness of the searches do
19:54
Speaker 3: not even fly in motions before Judge Cannon. There has
19:58
Speaker 3: been zero valid claim that these officials went beyond the
20:02
Speaker 3: scope of their authority or otherwise violated Donald Trump's Fourth
20:07
Speaker 3: Amendment rights with respect to his actual property that was
20:11
Speaker 3: at mar Lago. This is political hatchet jobs, smearing by
20:16
Speaker 3: individuals trying to color it as being an issue of misconduct.
20:20
Speaker 3: If they had actual, verified claims of misconduct against any
20:24
Speaker 3: of these officials, they could bring it through the normal
20:26
Speaker 3: administrative process. They don't want to do that because they
20:30
Speaker 3: know those claims won't hold up to scrutiny.
20:33
Speaker 2: And so big picture, what you're saying is these are
20:36
Speaker 2: FBI agents who were doing their jobs, who were doing
20:40
Speaker 2: what they were assigned to do.
20:42
Speaker 3: Correct and not just I don't ever want to go
20:44
Speaker 3: with thee We're just doing our jobs lined because that
20:47
Speaker 3: harkens back to World War Two. These were people following
20:50
Speaker 3: lawful orders to investigate potential crime in the sense of
20:55
Speaker 3: the attack on the capital of January sixth, as well
20:59
Speaker 3: as the unauthorized retention of classified documents at Mara a Lago.
21:03
Speaker 3: Those are existing crimes. There was a standard investigation. The
21:07
Speaker 3: only quote unquote misconduct they did was they dared to
21:11
Speaker 3: be part of an investigation into Donald Trump. And the
21:14
Speaker 3: point that this White House is trying to push is
21:17
Speaker 3: that people like Donald Trump and his friends and allies
21:20
Speaker 3: are above the law and can never be investigated.
21:25
Speaker 2: There have been many controversies in the history of the FBI,
21:28
Speaker 2: But have you ever heard of anything like this with
21:31
Speaker 2: possible retaliation against thousands of agents.
21:35
Speaker 3: This makes you think of, you know, the Hoover days
21:39
Speaker 3: in terms of the idea of such blanket politicization of
21:46
Speaker 3: the just Department of the FBI. We moved beyond that
21:50
Speaker 3: after Hoover for a reason. The civil service that its
21:53
Speaker 3: protections exist for a reason. We're trying to move beyond
21:59
Speaker 3: the flaws and the states of the part of our
22:01
Speaker 3: past in this country, not just in the FBI, but
22:04
Speaker 3: in the political system itself. To allow Donald Trump to
22:07
Speaker 3: do what he's trying to do would cripple the existing
22:11
Speaker 3: system and bring us back to the days of Tammany
22:14
Speaker 3: hall and blanket abuses of power. We cannot go back
22:19
Speaker 3: to that. That is why these losses are beinging brought.
22:22
Speaker 3: That is why lawyers like us are standing up to
22:24
Speaker 3: protect these individuals.
22:26
Speaker 2: During her confirmation hearings, Pambondi, who's now the Attorney General,
22:30
Speaker 2: assured senators that she wouldn't retaliate against Justice Departments staff
22:36
Speaker 2: simply because they'd been assigned to cases involving Trump, and
22:40
Speaker 2: that the weaponization of the Justice Department was over.
22:44
Speaker 9: I will not politicize that office. I will not target
22:48
Speaker 9: people simply because of their political affiliation.
22:52
Speaker 10: Finally, during her confirmation hearing, Pambondy, who's now the Attorney General,
22:57
Speaker 10: assured senators that she wouldn't retaliate against Else's department staff
23:01
Speaker 10: simply because they've been assigned to cases involving Trump.
23:05
Speaker 9: I will not politicize that office. I will not target
23:08
Speaker 9: people simply because of their political affiliation.
23:12
Speaker 2: Trump's pick for FBI Director, Cash Patel, also testified that
23:17
Speaker 2: he wouldn't seek retribution against the President's adversaries.
23:21
Speaker 8: The only thing that will matter if I'm confirmed as
23:24
Speaker 8: a director of the FBI is a de weaponized, depoliticized
23:28
Speaker 8: system of law enforcement, completely devoted to rigorous obedience of
23:33
Speaker 8: the Constitution.
23:34
Speaker 2: Do their statements give you any reassurance that retribution at
23:37
Speaker 2: the Justice Department will be stopped?
23:41
Speaker 3: None? Those promises, those reassurances mean nothing more than the
23:47
Speaker 3: reassurances given by certain Supreme Court nominees about the sanctity
23:53
Speaker 3: of Roe v. Wade. Their politicized you know, cover your
23:58
Speaker 3: your end statements that were made to get appointed, to
24:02
Speaker 3: get confirmed, that they will happily circumvent and throw out
24:07
Speaker 3: the window once they're in power, knowing that there's no
24:10
Speaker 3: one who's going to do anything to stop them, certainly
24:14
Speaker 3: not the existing majority in the House or Senate. They
24:17
Speaker 3: have no interest in going after these officials if they
24:21
Speaker 3: end up doing what they promised they would not do.
24:24
Speaker 3: And those officials like Pam Bonding know that.
24:27
Speaker 2: Thanks so much for being on the show, Brad. That's
24:29
Speaker 2: Brad Moss of Mark Zaid. Coming up next. The Trump
24:33
Speaker 2: administration's first anti trust suit. I'm June Gross. When you're
24:37
Speaker 2: listening to Bloomberg. It didn't take very long for the
24:40
Speaker 2: Trump Justice Department to file its first anti trust lawsuit.
24:45
Speaker 2: The government sued to block Hewlett Packard Enterprises fourteen billion
24:49
Speaker 2: dollar acquisition of Juniper Networks, arguing to tie up with
24:53
Speaker 2: harm competition in the market for enterprise wireless equipment used
24:58
Speaker 2: by large companies, diversities, and hospitals. The government says the
25:03
Speaker 2: deal would consolidate the sector from three major players HPE, Juniper,
25:08
Speaker 2: and Cisco Systems down to two that would control seventy
25:12
Speaker 2: percent of the market. But Antonio'neary, the CEO of HPE,
25:17
Speaker 2: told Bloomberg that the DOJ's reasoning is flawed.
25:21
Speaker 11: We believe there is no case here. This is pro competitive.
25:24
Speaker 11: We will bring it two complementary technologies together, which also
25:28
Speaker 11: will enable us to compete outside the United States in
25:32
Speaker 11: the context of the previous competition we have with Josh
25:35
Speaker 11: against the Chinese vendors in the context of national security,
25:38
Speaker 11: particularly in cloud and the service provider space.
25:42
Speaker 2: Joining me is anti trust expert Harry First, a professor
25:45
Speaker 2: at NYU Law School. Harry Many expected the Trump administration
25:50
Speaker 2: to sort of ease up on the aggressive anti trust
25:53
Speaker 2: enforcement by the Biden administration. Is it a surprise that
25:57
Speaker 2: they brought an anti trust lawsuit so soon.
26:00
Speaker 12: It's a surprise, yes, that they didn't wait for the
26:03
Speaker 12: new team really to be in place. And the complaint
26:07
Speaker 12: is very much a Biden administration type complaint. It's written
26:11
Speaker 12: like and refers to the merger guidelines that were adopted
26:16
Speaker 12: during the Biden administration. So it's curious. I don't know.
26:20
Speaker 12: Maybe they're acting Assistant Attorney General just never got the memo,
26:24
Speaker 12: doesn't read his emails. I can't quite explain why they
26:29
Speaker 12: decided to go ahead with this, unless there was some
26:32
Speaker 12: time pressure on the deal, I'm not certain about that.
26:37
Speaker 2: Is the acting Assistant Attorney General, a Trump appointee, does
26:41
Speaker 2: he have experience in the anti trust division.
26:44
Speaker 12: So the complaint is signed by the acting Assistant Attorney General,
26:50
Speaker 12: who was put in place over the person who would
26:54
Speaker 12: normally have been put in place for this position. So
26:58
Speaker 12: the way it's gone, particularly recent times, is the most
27:01
Speaker 12: apolitical person in the division is appointed as acting It's
27:07
Speaker 12: usually it's the head of criminal enforcement, which is really
27:11
Speaker 12: a political is no one who says, oh, no, we
27:13
Speaker 12: like cartels and we think they should flourish, so enforcement
27:18
Speaker 12: against cartels. No one objects to that that I know of.
27:21
Speaker 12: So the person who was head of criminal enforcement was
27:25
Speaker 12: instead reassigned to an immigration unit, which of course is
27:32
Speaker 12: presumably something they reassigned them to so that he would
27:35
Speaker 12: then leave the same as Manish Kumar. Fine guy, I mean,
27:40
Speaker 12: you know, he couldn't have been on anybody's enemies list
27:43
Speaker 12: that I can imagine. So they reassigned him to it's
27:46
Speaker 12: a sanctuary city's task force. It's ridiculous to a waste
27:51
Speaker 12: of his talent. And then they brought in this person
27:55
Speaker 12: who has just been in the any trust divisions, just
27:58
Speaker 12: joined last year. He's been in the White House Counsel's Office,
28:01
Speaker 12: in the prior Trump administration, so they appointed him as
28:05
Speaker 12: acting head. But why he decided to go ahead and
28:08
Speaker 12: sign this complaint, I honestly do not know. And why
28:12
Speaker 12: he couldn't wait for Gail Slater to be confirmed, which
28:16
Speaker 12: I assume she will be to review it. So I
28:18
Speaker 12: don't know the answer to that.
28:20
Speaker 2: So, I mean, they're assigning environmental lawyers to that sanctuary
28:24
Speaker 2: Cities unit, whatever it is. But these people have expertise,
28:28
Speaker 2: this guy, for example, in anti trust or environment and
28:31
Speaker 2: they're setting them to a totally different.
28:34
Speaker 12: Well, it's a political I mean, just the name of it.
28:37
Speaker 12: I don't know for sure, but just the name of it.
28:39
Speaker 12: It's something designed too, I don't know, rub their noses
28:42
Speaker 12: in it. It's a perversion of any good use of
28:45
Speaker 12: talent and designed to humiliate them. I don't know. But
28:49
Speaker 12: I was sort of shocked that they did that to Kumar.
28:52
Speaker 12: It doesn't make sense, you know, in anybody's world. And
28:56
Speaker 12: for all I know, he might have been more moderate
28:58
Speaker 12: and said, you know, we should hold up and for
29:00
Speaker 12: the new head of the division to be approved by
29:03
Speaker 12: the Senate. So it's sort of a curious turn of
29:07
Speaker 12: events that, you know, this complaint is the result.
29:11
Speaker 2: So tell us about the deal.
29:13
Speaker 12: Okay, So this is a deal that was announced in
29:15
Speaker 12: January of twenty twenty four, so it's been sitting there
29:20
Speaker 12: for a little while under investigation. And it involves the
29:24
Speaker 12: w land industry, wireless local area network industry, but on
29:30
Speaker 12: the commercial scale, not the routers that you and I
29:33
Speaker 12: have in our houses that create this little local area
29:36
Speaker 12: network that we can connect to wherever we are in
29:39
Speaker 12: the house. But you know, for enterprises, universities, offices, big
29:45
Speaker 12: companies that need to connect all their employees wirelessly wherever
29:50
Speaker 12: they're working to some access point. So it's all the
29:53
Speaker 12: equipment necessary for putting those wireless local area networks together.
30:00
Speaker 12: And Cisco is the leader worldwide and in the United
30:04
Speaker 12: States apparently, and according to the complaint, it's market share
30:09
Speaker 12: is more than twice what HPE Hewlett Packard Enterprises market
30:14
Speaker 12: share is. HP is second in the US market. And Juniper,
30:19
Speaker 12: the company being acquired by HPE, it's not clear where
30:23
Speaker 12: they sit in the market. The complaint doesn't say they're third,
30:27
Speaker 12: so maybe they're not quite third in the market. Maybe
30:30
Speaker 12: they're fourth or fifth, but I don't know. Their market
30:33
Speaker 12: shares vary around the world. In different markets, but they're
30:36
Speaker 12: smaller than HPE, so Cisco's market share is more than
30:40
Speaker 12: twice what HPEES is, so they really dominate the market.
30:44
Speaker 12: And the combined market share of the three firms now,
30:48
Speaker 12: the Justice Department complaints says, will be more than seventy percent,
30:53
Speaker 12: so a very concentrated market. And the increase in concentration,
30:58
Speaker 12: which is a key figure for merger enforcement, is over
31:03
Speaker 12: the thresholds for highly concentrated market where there's a presumption
31:09
Speaker 12: that competition may be substantially lessened in the future. So
31:14
Speaker 12: the market's highly concentrated at the increases over the thresholds.
31:18
Speaker 12: And again according to the twenty twenty three guidelines which
31:21
Speaker 12: the complaint sites, that's presume to violate the law, and
31:26
Speaker 12: that's sort of the core of the case.
31:28
Speaker 2: Will there be questions about market definition or anything like that,
31:31
Speaker 2: or is it pretty clear.
31:33
Speaker 12: There are always questions about our definition because as we know,
31:36
Speaker 12: this is what any trust lawyers love, And yes, there
31:39
Speaker 12: will probably be some, but I'm not sure in the
31:43
Speaker 12: end that that's going to be the thing that matters,
31:46
Speaker 12: even though the parties will fight over it. What makes
31:49
Speaker 12: the case more interesting is that this merger was cleared
31:52
Speaker 12: by the European Commission and by the UK Competition Markets Authority,
31:59
Speaker 12: the CMA. So both of them cleared this merger in
32:02
Speaker 12: August finding really no problems, and what had been the
32:06
Speaker 12: pattern during the Biden administration had generally been all three
32:11
Speaker 12: of those agencies were in agreement on most of the
32:15
Speaker 12: controversial mergers. They were not out of step. They all
32:19
Speaker 12: agreed that they violated European law or law in the
32:23
Speaker 12: United Kingdom or the United States. So this is unusual
32:27
Speaker 12: in the sense that the US is trying to block
32:30
Speaker 12: a merger that the other two just didn't go any
32:33
Speaker 12: further with. They both issued reports saying, hey, no problem.
32:37
Speaker 2: What's gotten a lot of attention is a memo in
32:40
Speaker 2: twenty twenty one from an HPE sales leader encouraging his
32:46
Speaker 2: team to quote kill missed, exclamation point, exclamation point, exclamation point,
32:52
Speaker 2: and on and on. There were like forty exclamation points,
32:55
Speaker 2: and missed was the name of Juniper's competing product.
32:59
Speaker 12: We love those memos. Yeah, that's the kind of thing.
33:02
Speaker 12: When NHS lawyers do that, they go, oh my god,
33:05
Speaker 12: we cannot suppress those else people. You know, they keep
33:09
Speaker 12: using language that get us into trouble, and yes, that's
33:13
Speaker 12: featured prominently in the complaint. Who wouldn't feature that prominently
33:17
Speaker 12: in the complaint? But in a number of these cases,
33:20
Speaker 12: those sorts of kill memos are often used where the
33:25
Speaker 12: conduct is exclusionary. In other words, the idea it was,
33:29
Speaker 12: you know, will cut off their air supply. This is
33:32
Speaker 12: back in the old Microsoft case. They were in a
33:35
Speaker 12: browser war, and that was the colorful language, but it
33:38
Speaker 12: was to exclude them from the market. These memos are
33:41
Speaker 12: a little different in the sense that he's telling his
33:44
Speaker 12: group to really compete hard and win these contracts. So
33:48
Speaker 12: the more specific parts, beyond the concentration in the market,
33:53
Speaker 12: is that these are head to head competitors that often
33:56
Speaker 12: competed for contracts with the same parties, the same buyers,
34:01
Speaker 12: and this merger will eliminate that head to head competition
34:04
Speaker 12: that had produced lower prices. So it's kill was not
34:07
Speaker 12: so much exclusionary, you know, as in kill, but quite hard.
34:12
Speaker 12: However you want to look at it, and that's what
34:13
Speaker 12: I think the defense will say. So what you're witnessing
34:16
Speaker 12: is competition. So every time we have competition, you can't say,
34:20
Speaker 12: oh my god, let's cry foul. This is what we want.
34:23
Speaker 2: I mean, is there any doubt that consumers benefit from
34:27
Speaker 2: having three players in the market rather than two.
34:30
Speaker 12: Well, I'd be a little cautious about three rather than two.
34:34
Speaker 12: The complaint doesn't say there aren't others, and in fact,
34:38
Speaker 12: at one point the complaint says, there are many suppliers,
34:41
Speaker 12: and if you look at the markets described both in
34:44
Speaker 12: the UK and in Europe, there are obviously more players,
34:48
Speaker 12: and so there are other sources of supply, and so
34:53
Speaker 12: presumably they will argue, well, we are head to head competitors,
34:56
Speaker 12: but we're also head to head competitors with other suppliers.
35:00
Speaker 12: And if now after the merger, the new HPE Juniper
35:05
Speaker 12: decides to try to raise its price, customers will just
35:08
Speaker 12: switch to the other suppliers like Hey, Cisco which has
35:12
Speaker 12: seventy percent of the market, or other small suppliers.
35:16
Speaker 2: Does the government have a strong case here, you think so?
35:19
Speaker 12: In one sense, yes, if they get a court that's
35:22
Speaker 12: willing to stick with the twenty twenty three guidelines that
35:25
Speaker 12: emphasize the highly concentrated market, increase in concentration creating a
35:30
Speaker 12: presumption and says okay, it's up to you HPE and
35:35
Speaker 12: Juniper to justify this merger, to show why it will
35:39
Speaker 12: increase competition, what the pro competitive effects are. So if
35:43
Speaker 12: they can convince a judge to shift the burden over
35:47
Speaker 12: to the defendants to justify the deal, then I think that's,
35:51
Speaker 12: you know, they have a shot at it. They obviously
35:53
Speaker 12: have some business documents that show this head to head competition.
35:58
Speaker 12: I don't know whether they have testimony from buyers of
36:03
Speaker 12: this equipment saying we're afraid that prices are going to
36:06
Speaker 12: go up if the deal goes through, So it would
36:09
Speaker 12: be helpful to them if they have testimony like this.
36:12
Speaker 12: But it's possible that they'll be able to convince the
36:15
Speaker 12: district court judge to go ahead and stop the merger.
36:19
Speaker 12: But the reason why I'm hesitant is that fictions and
36:22
Speaker 12: you know, the theory that's being advanced, the head to
36:25
Speaker 12: head competition theory was pretty much sloughed off in both
36:29
Speaker 12: of those jurisdictions.
36:31
Speaker 2: Business leaders thought that this administration would be more amenable
36:36
Speaker 2: to deals involving tech companies, just more amenable to M
36:40
Speaker 2: and A. Is it too soon to tell whether it
36:42
Speaker 2: will be with this one lawsuit, I.
36:45
Speaker 12: Would be hesitant to draw much, if anything, from this
36:49
Speaker 12: one case. Because the person who's going to make these
36:52
Speaker 12: decisions is just not in place. Unless I had some
36:54
Speaker 12: intelligence indicating that the acting head really was acting in
36:59
Speaker 12: a way that he knew was consistent with what the
37:02
Speaker 12: incoming had wanted, I would view this as a one
37:04
Speaker 12: off and not make predictions what the future might hold
37:08
Speaker 12: until we really see what new heads of the two
37:12
Speaker 12: agencies do with the twenty twenty three merger guidelines.
37:16
Speaker 2: Always a pleasure, Harry, Thank you. That's Professor Harry First
37:19
Speaker 2: of NYU Law School, and that's it for this edition
37:22
Speaker 2: of the Bloomberg Law Show. Remember you can always get
37:25
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37:28
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37:32
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