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Reluctant Grand Juries & John Bolton Plea · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 2: Former National security advisor John Bolton has agreed to plead
0:12
Speaker 2: guilty to a single count of retaining classified information and
0:17
Speaker 2: pay a two point twenty five million dollar fine under
0:21
Speaker 2: a deal with the Justice Department first reported by CNN.
0:25
Speaker 2: The deal would resolve the criminal case filed in October
0:29
Speaker 2: that charged Bolton with eighteen counts of either retaining or
0:34
Speaker 2: disseminating classified information, including diary like notes from his time
0:39
Speaker 2: in government that officials say he shared with his family
0:43
Speaker 2: members as he was preparing a memoir about his time
0:46
Speaker 2: in office. Bolton is expected to submit the change of
0:50
Speaker 2: plea at a rearraignment hearing at the US District Court
0:53
Speaker 2: in Maryland on June twenty sixth. My guest is national
0:57
Speaker 2: security expert Brad Moss apart at Mark Zaid. Brad Bolton
1:02
Speaker 2: had said that he was targeted for political reasons. His
1:05
Speaker 2: lawyer had argued that the conduct at issue was reviewed
1:10
Speaker 2: years earlier and deemed not criminal, and Bolton vowed to
1:14
Speaker 2: defend what he said was lawful conduct. So are you
1:17
Speaker 2: surprised that he's taking a plea and folding at this point.
1:21
Speaker 1: So I think there are multiple factors that came into
1:24
Speaker 1: this For John Bolton. One, you have to think of
1:26
Speaker 1: time and expense, even if he's victorious, even if he
1:30
Speaker 1: takes this, you know, through pre trial motions and ultimately
1:33
Speaker 1: to trial, even if he succeeds and is acquitted, that's
1:36
Speaker 1: going to be potentially millions of dollars in legal fees,
1:39
Speaker 1: all kinds of time of stress and effort. And he
1:44
Speaker 1: had to look at it from the view of is
1:46
Speaker 1: there a way that I can mitigate the pain, not
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Speaker 1: put my family through all of this and potentially still
1:53
Speaker 1: either a void prison time or minimize it. And so
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Speaker 1: I think that's likely why they took this step. I mean,
2:00
Speaker 1: and you have to think about it. There were numerous
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Speaker 1: charges in the original indictment. I think it was at
2:06
Speaker 1: least ten. This is down to a single charge of
2:09
Speaker 1: retention of national defense information that he's pleading guilty to.
2:13
Speaker 1: It speaks a bit to some of the weaknesses that
2:16
Speaker 1: would have existed in the government's case. There absolutely would
2:19
Speaker 1: have been the vindictive prosecution, pre trial motions that would
2:22
Speaker 1: have had all kinds of fights over discovery. There would
2:25
Speaker 1: have been fights over whether or not he had declassified
2:28
Speaker 1: it as an original classification authority himself when he sent
2:32
Speaker 1: stuff over. They would have invoked some of Trump's arguments
2:34
Speaker 1: about how you know, he could have declassified things. So
2:38
Speaker 1: it would have gotten messy and it would have dug
2:41
Speaker 1: into some of the underlying weaknesses in the government's case
2:45
Speaker 1: if this had gone through. So you know, that's why
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Speaker 1: I'd say that Bolton took this deal to minimize in
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Speaker 1: a future pain and potentially get off with no more
2:54
Speaker 1: than maybe thirty days or something like that. I could
2:56
Speaker 1: easily see him getting a very light sentence here and
2:59
Speaker 1: for the government get their scalp and they get to
3:01
Speaker 1: go home.
3:02
Speaker 3: Bolton has exposure here.
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Speaker 2: He could face anywhere from no time behind bars to
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Speaker 2: five years in prison. So that's something that prosecutors can
3:11
Speaker 2: make a recommendation on and the judge is free to
3:15
Speaker 2: ignore it.
3:16
Speaker 1: Whether it's a formal agreement or a recommendation that would
3:19
Speaker 1: be part of the plea. If the judge chooses to
3:23
Speaker 1: go beyond sort of what was recommended, then Bolton has
3:27
Speaker 1: the option, of course, to pull back that plea and
3:30
Speaker 1: move forward. But you look at similar plea deals for
3:35
Speaker 1: situations like this. Think about David Petraeus who got off
3:39
Speaker 1: with a slap on the risk. You know what, I
3:41
Speaker 1: don't I even got probation. You know, you think about
3:44
Speaker 1: Hillar Clinton, there wasn't even an indictment because of the
3:47
Speaker 1: weaknesses in the case. There's a lot of instances where
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Speaker 1: I could see a judge looking at this saying, you
3:52
Speaker 1: got the two million dollar fine, I might give you
3:56
Speaker 1: thirty days in prison at most, or I might just
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Speaker 1: put you want three years supervised probation. You know, John Bolton,
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Speaker 1: whatever my political and policy differences with him, as far
4:07
Speaker 1: as I know, has no criminal background. You know, this
4:10
Speaker 1: would be a first time offender, so that would all
4:12
Speaker 1: play in his favor in terms of limiting jail time,
4:15
Speaker 1: just like it would have for Donald Trump, if you know,
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Speaker 1: he had one reelection, he would have had that option
4:21
Speaker 1: of playing up first time offender elderly man. You know
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Speaker 1: card that John Bolton, no doubt's going to play out.
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Speaker 2: Is it a weakness in the case against him that
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Speaker 2: he didn't actually have the classified documents? It was notes
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Speaker 2: about meetings.
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Speaker 1: I think, yeah, everything as far as I can tell,
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Speaker 1: And you know, I had to relook through the indictment
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Speaker 1: myself to you know, try to refresh my memory was diaries,
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Speaker 1: which doesn't make this okay. You can't transcribe information into
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Speaker 1: into an unclassified diary. That is information you know is classified,
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Speaker 1: that you got from classified documents. That's not like a
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Speaker 1: secret you know loophole to it. But he's not the first,
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Speaker 1: and he's not going to be the life asked who
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Speaker 1: writes up these diaries, because everybody works in government at
5:03
Speaker 1: that kind of level eventually wants to write a book
5:05
Speaker 1: and make some money. So he had these diaries, he
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Speaker 1: arguably should have known that the information he was documenting
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Speaker 1: in them and sharing with people was classified. That was
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Speaker 1: the crux of the case. The weakness for the government
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Speaker 1: was going to be twofold one. They were going to
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Speaker 1: have to do a whole lot of classified discovery and
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Speaker 1: classified presentations to link where he got the information to
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Speaker 1: what he documented in the diaries. So that was going
5:31
Speaker 1: to be a whole lot of Classified Information Procedures Act work.
5:35
Speaker 1: But then they were also going to have to get
5:37
Speaker 1: around this issue of when have you ever otherwise prosecuted
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Speaker 1: someone for diaries? When have you ever otherwise prosecuted someone
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Speaker 1: for talking about it to a family member? As far
5:48
Speaker 1: as I know, no one's ever gotten prosecuted in that context.
5:50
Speaker 1: It's always been the documents. It was the documents for Trump,
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Speaker 1: it was the documents for Petraeus. You know, everybody else
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Speaker 1: always had the actual document it's with classification markings on them,
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Speaker 1: and that just didn't exist here.
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Speaker 3: For Bolton you mentioned betrayus.
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Speaker 2: Do cases about mishandling classified documents often end in plea
6:12
Speaker 2: deals or do they go to trial?
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Speaker 1: For the most part, they almost always end in plea deals.
6:17
Speaker 1: There's rare sort of exceptions to the rule. You think
6:22
Speaker 1: about Jeffrey Sterling and the you know, the alleged leak
6:25
Speaker 1: to the Times and what he had provided of the
6:29
Speaker 1: James Risen that actually made it to a trial. But
6:33
Speaker 1: for the most part, when people took home classified documents,
6:36
Speaker 1: you know, to think of the guy in Maryland from
6:37
Speaker 1: a few years back, that was a plea deal. Think
6:40
Speaker 1: of Edwid Snowden. If he had ever been prosecuted and
6:42
Speaker 1: gone to trial was in the United States, that would
6:44
Speaker 1: have almost certainly gone to a plea deal. Think of
6:47
Speaker 1: Chelsea Manning, who ultimately I believe ended up some sort
6:50
Speaker 1: of a plea deal. I know there was an aspect
6:51
Speaker 1: that actually went to trial, but limitations on that. You know,
6:55
Speaker 1: in the end the government usually can win that, but
6:58
Speaker 1: it becomes extremely time consuming and burdensome because of all
7:03
Speaker 1: the class fight information that's involved. There are procedures, have SIPA,
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Speaker 1: there's a way to do it, but they really don't
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Speaker 1: like to.
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Speaker 2: I'm surprised in one sense that they reached a plead
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Speaker 2: deal here because, I mean, President Trump so obviously dislikes Bolton.
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Speaker 2: I would think that this wouldn't make him very happy.
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Speaker 1: He's gonna get the headline he wants. It's gonna be
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Speaker 1: headlines today, the next couple of days, and then again
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Speaker 1: he's when Bolton is sentenced, saying Trump hater John Bolton
7:33
Speaker 1: pleads guilty in his sentence to X Y Z days
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Speaker 1: for a stealing classified information. That's what he wants. He
7:41
Speaker 1: doesn't actually care how long Bolton's in jail. He cares
7:45
Speaker 1: about the headlines, and he cares about the procedural stories
7:49
Speaker 1: because that aids his ego and they can run on
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Speaker 1: that and say, see, all these people came after me.
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Speaker 1: They're the ones who are really crooks.
7:56
Speaker 2: This case start under the Biden administration. But is this
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Speaker 2: case dissimilar to other cases against Trump's perceived political enemies
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Speaker 2: like the Jim Comy case and the Letitia James case.
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Speaker 1: This was the one that when they first came up,
8:12
Speaker 1: when they first did the search warrants, and then eventually
8:14
Speaker 1: when they had the indictments, that a lot of people
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Speaker 1: who had cried foul about some of these other cases
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Speaker 1: like Comy, Leticia James, Adam Schiff, Lisa Cook, everybody kind
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Speaker 1: of held their fire a bit because there was some
8:26
Speaker 1: actual fire. It wasn't just smoke. There was some legitimate
8:30
Speaker 1: meat on this bone. And what Bolton did certainly was
8:35
Speaker 1: not appropriate. Whether or not he would have lost that trial,
8:40
Speaker 1: you know, six to five and pick them, you know,
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Speaker 1: he's really hard to kind of know for certain, especially
8:44
Speaker 1: in a jury pool and district of Maryland that would
8:47
Speaker 1: have played against Trump to an extent. I could certainly
8:49
Speaker 1: see him potentially getting acquitted on several of the charges.
8:53
Speaker 1: But there was something there. There was a legitimate basis,
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Speaker 1: which was why it got started up in twenty twenty
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Speaker 1: one one, and which is why it went ultimately to prosecution. Now,
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Speaker 1: whether or not they would have ever bothered if it
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Speaker 1: wasn't John Bolton, that's something they would have fought in
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Speaker 1: the pretroal motions over selective prosecution.
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Speaker 2: So here's a question I often ask lawyers. When there's
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Speaker 2: some obvious evidence that's found, why would he keep incriminating
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Speaker 2: evidence at his home and office for the FBI to find?
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Speaker 3: Why not get rid of it?
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Speaker 1: So there's a level of arrogance that comes into play
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Speaker 1: for what I've described. And this isn't a liberal, conservative,
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Speaker 1: Republican Democrat thing. This is a senior level government person thing.
9:39
Speaker 1: When you've been at that senior level for so long
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Speaker 1: and everybody's always handled everything for you on the detail
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Speaker 1: side for classified information, you just kind of feel like
9:48
Speaker 1: you can do whatever you want. He's not the only one.
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Speaker 1: Like I said, we saw what Petraeus did, we saw
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Speaker 1: how Clinton got tied up in stuff. They get sort
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Speaker 1: of disconnected from the you know, the nuts and bolts
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Speaker 1: of it, and they start thinking, oh, I can just
10:00
Speaker 1: keep this. No one's ever going to care, And to
10:03
Speaker 1: be fair, most times, the government really doesn't care. They
10:06
Speaker 1: don't have time to prosecute all these I guarantee you
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Speaker 1: if you went through the house of every former senior
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Speaker 1: official from the last four administrations, you'd find something. You'd
10:15
Speaker 1: find diaries, you'd find notes, You'd find a number of
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Speaker 1: things that potentially could be classified because people are stupid
10:21
Speaker 1: and they're arrogant. So I think that played a role
10:24
Speaker 1: for Bolton, who had been, you know, a senior official
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Speaker 1: in two different administrations. The man there was the pinnacle
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Speaker 1: of the idea of the DC national security insider.
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Speaker 2: Well, see what happens in court on June twenty sixth,
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Speaker 2: Thanks so much, brad that's national security expert Bradley Moss
10:40
Speaker 2: a partner Mark Zaid on the verge of trial and
10:45
Speaker 2: after a closed door hearing, there was a stunning implosion
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Speaker 2: of a case against a group of protesters accused of
10:52
Speaker 2: blocking a federal agent from an ICE facility in the
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Speaker 2: Chicago suburbs last year. The reason miss con by federal
11:01
Speaker 2: prosecutors at the grand jury. Judge April Perry said her
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Speaker 2: trust in prosecutors had been broken after finding that they
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Speaker 2: improperly spoke to grand jurors outside the grand jury room,
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Speaker 2: personally vouched for the strength of the case, and excused
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Speaker 2: grand jurors who disagreed with the government's case. It's not
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Speaker 2: the first instance of federal prosecutors in the Trump administration
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Speaker 2: having cases dismissed because of misconduct in grand jury proceedings.
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Speaker 2: My guest is former federal prosecutor Jimmy Garoule, a professor
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Speaker 2: at Notre Dame Law School. So, Jimmy, here's the misconduct
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Speaker 2: that Judge Perry found. Improper prosecutorial communications. Prosecutor spoke to
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Speaker 2: grand jurors outside the grand jury room. A prosecutor personally
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Speaker 2: vouched for the strength of the case, and grand jurors
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Speaker 2: who had disagreed with the government's case were excused from deliberating.
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Speaker 2: These aren't subtle mistakes there, pretty basic, aren't they.
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Speaker 4: They're shocking. It's a scandal.
12:05
Speaker 5: Prosecutors are supposed to be a minister of justice, not
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Speaker 5: a minister of corruption, you know, dishonesty and deception, and
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Speaker 5: that's what we're seeing here.
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Speaker 2: Is there any way they could have been mistaken about any.
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Speaker 4: Of this only in this regard.
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Speaker 5: So, one of the interesting dynamics we've seen over the
12:25
Speaker 5: last year is a number of prosecutors have left the
12:29
Speaker 5: Department of Justice. And these are some of the more
12:32
Speaker 5: experienced prosecutors, and they have left because many at least
12:36
Speaker 5: believe that they've been placed in an untenable situation where
12:39
Speaker 5: they've been required to bring criminal charges when they didn't
12:42
Speaker 5: think there was sufficient evidence to support criminal charges, or
12:45
Speaker 5: dismiss criminal charges when they felt that the case should
12:49
Speaker 5: go forward.
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Speaker 4: And those more.
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Speaker 5: Experienced prosecutors are being replaced by inexperienced prosecutors. And I've
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Speaker 5: seen this first hand. I was a federal prosecutor in
13:01
Speaker 5: the US Attorney's Office in Los Angeles. Individuals that were
13:05
Speaker 5: considered for an AUSA position, which were considered really prestigious positions,
13:11
Speaker 5: they probably on average had close to five years experience
13:14
Speaker 5: before being hired by the Department of Justice. I had
13:17
Speaker 5: a former student of mind here at Notre Dame Law
13:19
Speaker 5: School who was recently hired after she graduated from law school.
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Speaker 5: She had zero legal experience. She recently graduated from high school.
13:29
Speaker 5: And so I think that could be one of the
13:30
Speaker 5: problems that they're bringing in these inexperienced lawyers to assume
13:35
Speaker 5: these very difficult positions a federal prosecutor serious cases, complex cases,
13:42
Speaker 5: and they just don't have the experience that they don't
13:44
Speaker 5: have the training. So that would be in essence to
13:46
Speaker 5: kind of give the Department of Justice the benefit of
13:48
Speaker 5: the doubt. But with respect to the prosecutors in the
13:51
Speaker 5: Chicago case. I think this was just the end Justifiabedes situation.
13:56
Speaker 5: You know, they wanted to get indictments against the Chicago testers,
14:00
Speaker 5: and they were going to take no frun answers. So basically,
14:03
Speaker 5: this was an attempt to rig the grand jury system
14:06
Speaker 5: to ensure that they would get the indictments that they
14:08
Speaker 5: were seeking.
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Speaker 2: Because at least one was an experienced prosecutor, I don't
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Speaker 2: know about the others. So the judge said, I've read hundreds,
14:15
Speaker 2: if not thousands, of grand jury transcripts involving prosecutors who
14:19
Speaker 2: are the most junior of prosecutors. I have never seen
14:22
Speaker 2: the types of prosecutorial behavior before a grand jury that
14:25
Speaker 2: I saw in those transcripts. So let's go through some
14:28
Speaker 2: of what she found so disturbing. Explain what's wrong with
14:32
Speaker 2: personally vouching for your case before a grand jury, saying,
14:36
Speaker 2: you know this case, this is a winning case. I
14:38
Speaker 2: know it's a winning case. Something like that.
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Speaker 5: Now that grand jurors are to make the decision of
14:44
Speaker 5: whether or not there's probable cause to believe that a
14:47
Speaker 5: crime has been committed, and if so, whether there's probable
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Speaker 5: cost believe that the target of the grand jury investigation
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Speaker 5: committed the crime, and those decisions should be made exclusively
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Speaker 5: on the evidence that been presented to the grand jury,
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Speaker 5: not the prosecutor's opinion regarding the strength of the case,
15:07
Speaker 5: the strength of the evidence, but on the evidence itself.
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Speaker 5: And this is very basic fundamental you know, ethics, professional responsibility.
15:15
Speaker 5: One point. Oh, this wasn't a mistake. I mean, this
15:18
Speaker 5: was just a blatant violation of fundamental rules of professional
15:21
Speaker 5: responsibility and ethics.
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Speaker 2: Also, I mean talking about blatant talk about speaking to
15:26
Speaker 2: grand jurors outside the grand jury room and then dismissing
15:30
Speaker 2: some grand jurors. How would they expect to get away
15:33
Speaker 2: with that? I mean, is the problem that the grand
15:35
Speaker 2: jury process is secret, and how does a defense lawyer
15:39
Speaker 2: or judge know what's going on.
15:41
Speaker 4: That's exactly the case.
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Speaker 5: So the grand jury proceedings are secret proceedings only by
15:47
Speaker 5: the prosecutor. And so because of the secretive nature of
15:51
Speaker 5: the granduurary proceedings, I'm sure the prosecutors think, well, whatever
15:55
Speaker 5: we're doing that's improper, whatever misconduct we're engaged in, is
15:59
Speaker 5: not to be revealed.
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Speaker 4: It's not going to be disclosed.
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Speaker 3: And I mean This is not the only case.
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Speaker 2: There was a case in in Wyoming, a panel of
16:09
Speaker 2: three judges throughout nine indictments, including some for murder, after
16:14
Speaker 2: the examination of the grand jury proceedings revealed misconduct by
16:18
Speaker 2: the US attorney himself, the Trump appointed US attorney who
16:23
Speaker 2: had had no prosecutorial experience at all. To your point,
16:27
Speaker 2: so you have inexperienced people leading a US attorney's office
16:32
Speaker 2: and going before grand juries. But some of this seems
16:36
Speaker 2: really basic.
16:37
Speaker 4: Oh it is. It is very basic. You know. There's
16:40
Speaker 4: really no excuse.
16:41
Speaker 5: I mean, this goes to just fundamental principles of fairness
16:45
Speaker 5: and new process, independence, impartiality. As I stated, this is
16:51
Speaker 5: an attempt to rig the system to obtain the result
16:55
Speaker 5: that the prosecutors are seeking to obtain, which is shocking
16:59
Speaker 5: considering the fact that the grand jury system really favors prosecutors.
17:03
Speaker 5: As I stated, there's no judge, there's no defense lawyer.
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Speaker 5: The standard of proof is merely probable cause. And then
17:11
Speaker 5: in addition, the prosecutor doesn't have to prove probable cause.
17:16
Speaker 5: By unanimous determination of the grand jurors. It's enough that twelve.
17:22
Speaker 5: All they have to prove is twelve of the twenty
17:24
Speaker 5: three grand jurors, just a simple majority have concluded that
17:29
Speaker 5: there's probable cause. And further, the rules of evidence don't
17:32
Speaker 5: apply in the grand jury room, so prosecutors can introduce
17:36
Speaker 5: hearsay evidence, double hearsay, triple hearsay evidence. And despite all
17:41
Speaker 5: of these rules favoring the prosecution, these prosecutors still felt
17:46
Speaker 5: that it was necessary to rig the system. They were
17:49
Speaker 5: confident that they could prevail based upon those rules, and
17:53
Speaker 5: they needed to reach out and have improper contact with
17:58
Speaker 5: the members of the grand jury. With respect to grandeurors
18:02
Speaker 5: that had ruled or decided against them in prior cases,
18:06
Speaker 5: they decided, let's just exclude those grand jurors. We don't
18:09
Speaker 5: want them on the grand jury because they might decide
18:13
Speaker 5: against us. I mean, this is just shocking conduct and
18:16
Speaker 5: most disturbing. It's not limited to the fairness and the
18:21
Speaker 5: injustice of the particular case, but it creates a loss
18:26
Speaker 5: of trust. There's this loss of trust in the justice
18:29
Speaker 5: department that's beginning to emerge, and judges across the country
18:34
Speaker 5: are beginning to question, can we really believe what the
18:38
Speaker 5: prosecutor is saying? Can we really trust the arguments and
18:42
Speaker 5: the representation that prosecutors are making and when we get
18:45
Speaker 5: to that point, that becomes a crisis. I think that
18:48
Speaker 5: we're really on the verge of a crisis within the.
18:51
Speaker 4: Department of Justice.
18:52
Speaker 2: Yeah, the judge in this case, Judge April Perry, told
18:56
Speaker 2: Andrew Boutrose, who is the Trump appointed US attorney for Chicago,
19:00
Speaker 2: who appeared in court to apologize for the mistakes made.
19:05
Speaker 2: Judge Perry said, quote, I do believe deeply the presumption
19:09
Speaker 2: of regularity and that most government attorneys are doing the
19:12
Speaker 2: best they can to do the right thing. That trust
19:15
Speaker 2: has been broken, and that's been happening in courtrooms across
19:20
Speaker 2: the country.
19:21
Speaker 5: And what we're beginning to see is in more and
19:23
Speaker 5: more cases, defendants are challenging raising legal challenges to the
19:28
Speaker 5: integrity of the procedures of process inside the grand jury room.
19:33
Speaker 5: And this is now an argument that is being raised
19:37
Speaker 5: in multiple cases across the country, again challenging the regularity,
19:42
Speaker 5: of fairness, the presumption of regularity, and again I think
19:46
Speaker 5: it is creating a crisis of trust.
19:48
Speaker 4: Crisis of trust within the Department of Justice.
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Speaker 5: And not only with judges, but I think more broadly
19:53
Speaker 5: with the public at large. If the public starts losing
19:56
Speaker 5: trust in the criminal justice system starts losing trust is
20:00
Speaker 5: the integrity of prosecutor's offices. Then that does not speak
20:03
Speaker 5: well for the future of criminal justice.
20:06
Speaker 4: In this country.
20:08
Speaker 2: As you mentioned, lawyers in Don Lemon's case as well
20:13
Speaker 2: as the indictment of the Southern Poverty Law Center reference
20:17
Speaker 2: this Chicago case. So defense lawyers are trying to get
20:22
Speaker 2: the transcripts of the grand jury proceedings, which had always
20:26
Speaker 2: been super super secret, shall we say, but I mean
20:30
Speaker 2: Judge Perry is thinking of releasing the grand jury transcripts here?
20:35
Speaker 2: How else can defendants really find out what happened in
20:37
Speaker 2: the grand jury room?
20:38
Speaker 5: Well, that creates a problem because you stated you grand
20:41
Speaker 5: jury secrecy credit. It's embodied in Rule sixty of the
20:46
Speaker 5: Rules of Criminal Procedure. And it's important because we want
20:50
Speaker 5: persons that appear before the grand jury. We want them
20:53
Speaker 5: to testify openly, freely, be frank and open about what
20:59
Speaker 5: evidence they may have. And if their identity is going
21:03
Speaker 5: to be disclosed, then this could have a chilling effect
21:06
Speaker 5: on their willingness to participate in the grand jury in proceding.
21:10
Speaker 5: So it has implications far beyond the individual case. But
21:16
Speaker 5: when the seed of distrust has been planted with the courts,
21:21
Speaker 5: with the general public. We're going to see more and
21:23
Speaker 5: more challenges to the integrity of the grand jury process,
21:26
Speaker 5: and it could have a chilling effect with respect to
21:29
Speaker 5: witnesses willing to come forward and testify before the grand
21:34
Speaker 5: jury for fear that again the transfer is going to
21:36
Speaker 5: be disclosed and maybe their identity, maybe their name might
21:40
Speaker 5: not be disclosed, but someone could determine their identity based
21:43
Speaker 5: upon the testimony that is presented to the grand jury.
21:47
Speaker 2: To show how I guess concern the Chicago US Attorney
21:51
Speaker 2: is about this. They are reaching out to defense attorneys
21:55
Speaker 2: in cases that were handled by these prosecutors and they've
21:59
Speaker 2: agreed to give defense the minutes of the grand jury
22:02
Speaker 2: proceedings in their cases.
22:05
Speaker 4: I mean, again, this is totally unverbal.
22:07
Speaker 5: And in all the years that I worked as a prosecutor,
22:09
Speaker 5: as an assistant US attorney, as a DOJ prosecutor, this
22:13
Speaker 5: didn't happen. What we're witnessing today is not normal. You know,
22:18
Speaker 5: this is exceedingly rare, and it's very disturbing, and it
22:23
Speaker 5: raises serious consequences about prosecutors that are engaging in this misconduct,
22:30
Speaker 5: and they should not be leaving their ethics, their ethical
22:32
Speaker 5: values outside the courtroom or outside the grand jury room.
22:37
Speaker 5: We need prosecutors that embrace honesty justice, that are governed
22:42
Speaker 5: by those And here's one advice that I would give
22:44
Speaker 5: every prosecutor. Every federal prosecutor should read Justice Jackson's speech.
22:49
Speaker 5: Robert Jackson, former Attorney General of the United States. He
22:53
Speaker 5: gave an address to the second annual US Prosecutor's Conference
22:58
Speaker 5: in Washington, DC in nineteen four and there he talked
23:01
Speaker 5: about the prosecutor, stating that, well, the prosecutor is his
23:05
Speaker 5: best as one of the most beneficent forces in our society.
23:09
Speaker 5: When he acts for malice or other base motives, he
23:12
Speaker 5: is one of the worst, one of the worst forces.
23:15
Speaker 5: Those words really need to be taken to heart by
23:18
Speaker 5: every prosecutor in this country.
23:19
Speaker 4: They need to read this speech.
23:21
Speaker 5: They should have the speech framed and hung on the
23:23
Speaker 5: wall in their office.
23:25
Speaker 2: The US Attorney in Chicago in the press release mentioned
23:29
Speaker 2: that speech by Jackson. So we've seen a lot of
23:34
Speaker 2: cases not only in Chicago, but in DC and Los
23:38
Speaker 2: Angeles related to immigration sweeps where grand jurors have refused
23:45
Speaker 2: to indict, which used to be unheard of and I'm
23:47
Speaker 2: wondering if they're overcharging, is that why they're having problems
23:52
Speaker 2: with grand juries.
23:53
Speaker 4: Yeah, I think that's part of the concern.
23:55
Speaker 5: I think part of the concern is that the grand
23:58
Speaker 5: jurors are looking at some of these charges and they're
24:01
Speaker 5: looking at them and saying, this just doesn't seem right.
24:03
Speaker 5: There seems to be a disconnect between the severity of
24:07
Speaker 5: the charges that are being filed where they're seeking an indictment,
24:10
Speaker 5: and the conduct, the harm caused by.
24:14
Speaker 4: The target of the grand jury.
24:15
Speaker 5: You know, there's this disconnect between the harm and the
24:20
Speaker 5: severity of the charge, and therefore they're unwilling to return
24:23
Speaker 5: an indictment. It just doesn't seem fundamentally fair to them.
24:27
Speaker 5: And I think as a result of that, that might
24:29
Speaker 5: be one of the reasons why prosecutors are trying to
24:33
Speaker 5: gain the grand jury system to ensure that there's an
24:36
Speaker 5: indictment where there may be reluctant grandeurs unwilling to indict
24:42
Speaker 5: because they think that the case has been overcharged by.
24:44
Speaker 2: The rush care they're going to have a sanctions hearing.
24:47
Speaker 2: Do you think that these prosecutors will be sanctioned well
24:49
Speaker 2: as possible?
24:50
Speaker 5: This misconduct in the Chicago case in particular is quite
24:54
Speaker 5: quite eggregious. So I think that there could be some
24:58
Speaker 5: individual sanctions will beyond the dismissal of the indictment.
25:03
Speaker 4: We'll wait and see, And that's part of the problem,
25:05
Speaker 4: you know.
25:05
Speaker 5: Part of the problem is that when prosecutors engage in
25:08
Speaker 5: gross misconduct, there are very few sanctions that they are
25:13
Speaker 5: subjected to, and that's in large part because of the qualified immunity,
25:17
Speaker 5: because internal disciplinary proceedings within the bar, it's very difficult
25:23
Speaker 5: to a very very high standard, high bar that has
25:26
Speaker 5: we met in order to sanction the prosecutor, and so
25:30
Speaker 5: there isn't much of a deterrent effect. So if you
25:32
Speaker 5: engage in this type of misconduct, yeah, the case might
25:35
Speaker 5: be dismissed, but there's nothing that's going to happen to
25:38
Speaker 5: the prosecutor personally for his or her misconduct.
25:42
Speaker 4: And I think that's a problem. There's no price to pay.
25:44
Speaker 5: So if you're not going to be sanctioned, then what's
25:47
Speaker 5: a disincentive here for engaging this kind of conduct.
25:49
Speaker 2: The Chicago US Attorney's Office has implemented a quote remediation
25:54
Speaker 2: plan for its grand jury procedures, and that includes increase
25:58
Speaker 2: and expanded education about grand jury presentations, extensive deep dive
26:03
Speaker 2: training from national experts outside the office.
26:05
Speaker 5: You don't need deep dive training on the violations that
26:09
Speaker 5: are at issue here. I mean the prohibition on vouching
26:13
Speaker 5: regarding the evidence. That doesn't need any kind of a
26:15
Speaker 5: deep dive. That's not a complicated issue that requires, you know,
26:19
Speaker 5: extensive training. Dismissing members of the grand jury that you
26:24
Speaker 5: don't like this stuff is just so fundamentally basic. It
26:28
Speaker 5: doesn't require any type of extensive, extra deep dive training
26:34
Speaker 5: for prosecutors to know right from wrong on these very
26:37
Speaker 5: fundamental issues.
26:39
Speaker 4: It's just so disturbing.
26:40
Speaker 5: You know, we're seeing cases being dismissed because of selective prosecution.
26:44
Speaker 5: We're seeing grandeurs time and time again failing to bring
26:48
Speaker 5: charges because they think that the evidence doesn't support the
26:52
Speaker 5: charges or they've been overcharged by the prosecutor, and all
26:55
Speaker 5: of it is just it's really damaged the reputation of
26:59
Speaker 5: the justice and it's going to take I think years
27:03
Speaker 5: and years to regain that trust with the judiciary, with
27:09
Speaker 5: members of the bourt, with the general public. This is
27:12
Speaker 5: going to be damaged. It's going to be a long lasting.
27:14
Speaker 5: It's not going to be quickly remedy.
27:16
Speaker 2: I'm sure we're going to hear a lot more when
27:18
Speaker 2: grand jury transcripts are released in some of these cases.
27:23
Speaker 2: Thanks so much for joining me, Jimmy. That's Professor Jimmy
27:25
Speaker 2: Garoule of Notre Dame Law School. Only fifteen federal judges
27:33
Speaker 2: have been impeached in our nation's history. The House hasn't
27:37
Speaker 2: moved forward with an impeachment proceeding in sixteen years, even
27:41
Speaker 2: though Republicans have filed impeachment resolutions for a number of
27:45
Speaker 2: federal judges who've ruled against the Trump administration.
27:49
Speaker 3: However, House Judiciary.
27:51
Speaker 2: Chairman Jim Jordan is considering congressional action against a Georgia
27:56
Speaker 2: federal judge for a very different reason. The judge had
28:00
Speaker 2: an affair in her chambers and lied to judiciary officials
28:04
Speaker 2: about it. Joining me is Bloomberg Law reporter Suzanne Mognac. Suzanne,
28:09
Speaker 2: I've never heard of a scandal quite like this in
28:12
Speaker 2: the courts. Tell us what happened.
28:15
Speaker 6: A judicial misconduct committee found in a decision released in
28:18
Speaker 6: late May that a federal judge unnamed in the decision
28:22
Speaker 6: had been having an affair inside of her chambers during
28:25
Speaker 6: business hours and an earshot of her clerks with a
28:28
Speaker 6: commander in the police department. The decision didn't name the judge,
28:32
Speaker 6: but did provide a number of biographical details both about
28:34
Speaker 6: Horror and the man she was having the affair with,
28:37
Speaker 6: and Bloomberg Law has confirmed through those details and additional
28:40
Speaker 6: reporting that the judge is Judge Eleanor Ross of the
28:43
Speaker 6: Northern District of Georgia. Obviously, this was a violation of
28:47
Speaker 6: judicial codes of conduct. The committee, however, recommended a private
28:51
Speaker 6: reprimand by not publicizing her name, and didn't recommend that
28:55
Speaker 6: she be removed from the bench, instead that she write
28:57
Speaker 6: apology letters to her clerks.
29:00
Speaker 2: If Bloomberg Law hadn't found this out, the people that
29:03
Speaker 2: came in front of her are the defendants. The plaintiffs
29:05
Speaker 2: wouldn't have known whether or not she has a conflict
29:09
Speaker 2: that they should protest.
29:12
Speaker 6: That's correct, and that's something that we've heard a lot
29:14
Speaker 6: about from legal ethicists who've weighed on this case, to
29:17
Speaker 6: say that you know that's correct. By not publicizing her name,
29:20
Speaker 6: it does take away the opportunity for a potential litigant
29:23
Speaker 6: in her courtroom to raise a conflict concern or to
29:26
Speaker 6: request refusal from a case. That was one of the
29:28
Speaker 6: reasons that might have leaned in favor of releasing her name,
29:31
Speaker 6: but ultimately it's not the decision the Eleventh Circuit came to.
29:34
Speaker 6: They also did take a look to see if she'd
29:36
Speaker 6: had any cases where the Atlanta Police Department was a
29:40
Speaker 6: party during the relevant period of time during what she
29:43
Speaker 6: was having the affair with the police officer, and they
29:45
Speaker 6: determined that she had not. So the Eleventh Circuit on
29:47
Speaker 6: their own just said, you know, we don't see a
29:49
Speaker 6: conflict here, but they did concede that it had raised
29:51
Speaker 6: a risk of conflict and even made a point of
29:53
Speaker 6: noting that she hadn't herself taken any efforts to be
29:56
Speaker 6: taken off those cases. She had essentially just gotten lucky
29:58
Speaker 6: and not been given any of them. And I should
30:00
Speaker 6: also know that she was additionally reprimanded for lying about
30:02
Speaker 6: some of this conduct, which may end up being among
30:05
Speaker 6: the more serious charges.
30:07
Speaker 2: Yes, in the judiciary chair said, a key fact is
30:11
Speaker 2: that she lied to the judges investigating her misconduct, and
30:15
Speaker 2: there was another instance where a judicial council found that
30:20
Speaker 2: the judge acted improperly.
30:22
Speaker 6: That's correct. She attended a campaign watch party for the
30:25
Speaker 6: primary for District Attorney Fanny Willis a couple of years ago.
30:29
Speaker 6: That party was found I've been an inappropriate political event
30:31
Speaker 6: for a federal judge to go to. And we've already
30:34
Speaker 6: seen one recusal request from the Justice Department based on
30:37
Speaker 6: that conduct in a voting rights case down in Georgia.
30:39
Speaker 3: A recusal request.
30:40
Speaker 2: So it's initially it's up to the judge to decide
30:43
Speaker 2: whether to recuse herself or not. What are legal ethics
30:47
Speaker 2: experts telling you about this request for recusal on the
30:51
Speaker 2: voting case.
30:52
Speaker 6: I've been told that they don't see it as frivolous.
30:55
Speaker 6: For one, I think this is a case in which
30:57
Speaker 6: the Justice Department is seeking Georgia voter registration and formation
31:00
Speaker 6: its just lawsuit against the Secretary of State's office at
31:03
Speaker 6: brad Raethisberger, and they're making the argument that because this
31:08
Speaker 6: judge has clearly a friendship with DA Fanny Willis and
31:10
Speaker 6: attended her victory party, that this counts as an endorsement
31:13
Speaker 6: of her of the Democratic Party. Fanny Willis, of course,
31:16
Speaker 6: is the DA who brought criminal charges against President Donald
31:19
Speaker 6: Trump during the last administration related to his efforts to
31:23
Speaker 6: overturn his twenty twenty election loss. They're making the case
31:26
Speaker 6: that this shows that she should not be allowed to
31:28
Speaker 6: preside over cases involving election integrity efforts in this space.
31:33
Speaker 6: She has yet to decide that motion, but it has
31:35
Speaker 6: been filed in his pending.
31:36
Speaker 2: The ethics experts did they say what they thought an
31:41
Speaker 2: appropriate punishment would be for her misconduct.
31:45
Speaker 6: A lot of people we spoke to felt that her
31:47
Speaker 6: name should have been publicly revealed by the judiciary, because,
31:50
Speaker 6: of course, even when we see the Justice Department's requests
31:53
Speaker 6: for recusal, they were relying on our and other news
31:55
Speaker 6: reports that have floated her name. The judiciary has not
31:58
Speaker 6: on its own confirmed this name. They haven't denied it,
32:01
Speaker 6: but they have not come out and confirmed it. And
32:03
Speaker 6: a lot of ethicists said that this would have made
32:05
Speaker 6: it a lot easier for litigants if that name had
32:07
Speaker 6: been published. And while it's true that a federal judges
32:11
Speaker 6: may not be as likely to hear local police cases,
32:14
Speaker 6: it may come up in the civil rights context, and
32:15
Speaker 6: it's not possible there could be a context in which
32:17
Speaker 6: this would come up. And so the fact that they
32:19
Speaker 6: withheld their name did take away the opportunity for litigans
32:22
Speaker 6: to consider if there may be a conflict. It just
32:24
Speaker 6: creates uncertainty.
32:26
Speaker 2: Let's turn to a completely different subject, but one that
32:30
Speaker 2: I'm really interested in and you're covering. A judge is
32:33
Speaker 2: ordered that President Donald Trump's name be removed from the
32:37
Speaker 2: Kennedy Center building tell us more.
32:41
Speaker 6: Last week, the Trump administration was deal yet another blow
32:43
Speaker 6: in federal courts, this time by a Washington federal judge
32:47
Speaker 6: who found that they had acted improperly what of regard
32:50
Speaker 6: to the Kennedy Center for Performing Arts here in Washington.
32:53
Speaker 6: The judge ordered the Kennedy Center to remove Trump's name
32:56
Speaker 6: from the letters on its facade. Trump had, of course,
32:59
Speaker 6: attempted to rename the Kennedy Center to be the Donald J.
33:02
Speaker 6: Trump and John F. Kennedy Center. I should say it's
33:04
Speaker 6: a memorial to John F. Kennedy, obviously, our former president,
33:07
Speaker 6: and the judge found that Congress had intended the building
33:10
Speaker 6: to be named for JFK and for JFK only. They
33:13
Speaker 6: also the judge also came and stopped the administration from
33:17
Speaker 6: a planned two year closure of the Kennedy Center beginning
33:20
Speaker 6: this summer for renovations. That's something that the Kennedy Center's board,
33:23
Speaker 6: mostly of handpicked board members by President Donald Trump and
33:27
Speaker 6: who chairs this board. That board had voted in March
33:30
Speaker 6: to close the center for two years for renovations, and
33:33
Speaker 6: the judge found that they just had not received enough
33:36
Speaker 6: information to have made that decision. They said that he
33:38
Speaker 6: said that the word had considered really a one sided
33:41
Speaker 6: presentation and a predetermined outcome. So the board is free
33:45
Speaker 6: to decide to vote again to close the center for renovations,
33:48
Speaker 6: but they're required to consider more information if they do
33:51
Speaker 6: come to that conclusion. The judge also made clear that
33:53
Speaker 6: needed repairs to the Kennedy Center are permitted, so it's
33:56
Speaker 6: not that they can't touch the building, but they have
33:58
Speaker 6: to take Trump's name off the outside, and they can't
34:01
Speaker 6: just decide to close it for two years without more
34:03
Speaker 6: information under consideration.
34:05
Speaker 2: And in the case of Trump's ballroom, work is still
34:09
Speaker 2: going on even though a federal judge found that it
34:13
Speaker 2: was not a legal construction.
34:15
Speaker 6: That's correct. But when it comes to the ballroom, the
34:16
Speaker 6: administration has gotten an order from the d C Circuit
34:19
Speaker 6: that allows them to continue with construction while proceedings continue.
34:24
Speaker 6: So while we've seen a lot from Trump and others
34:26
Speaker 6: about how the courts are messing with his plans for
34:29
Speaker 6: the ballroom and affecting national security. In fact, construction has
34:33
Speaker 6: not been interrupted. Certainly, there's probably some uncertainty for them,
34:36
Speaker 6: but construction has continued unobated. And the DC Circuit will
34:39
Speaker 6: actually be hearing oral arguments in the White House ballroom
34:42
Speaker 6: case and this coming Friday on June fifth, So that
34:44
Speaker 6: case is moving at a pretty fast rate. So we'll
34:47
Speaker 6: see how how the Appeals Court ends up deciding on
34:49
Speaker 6: the merits.
34:49
Speaker 2: Do you know who's on that panel, because so often, sadly,
34:53
Speaker 2: in these cases involving Trump, it ends up being Democratic
34:58
Speaker 2: appointees on one side Republican appointees on the other.
35:02
Speaker 6: The DC Circuit has a three judge panel that will
35:04
Speaker 6: hear the appeal. Its judges Patricia Mallett, Judges Naomi Rao,
35:08
Speaker 6: and Bradley Garcia. Both judges Garcia and Mallett are Democratic appointees,
35:12
Speaker 6: and Judge Raw is first administration Trump appointing.
35:15
Speaker 2: So we'll see tomorrow how those arguments go. Thanks so much, Suzanne.
35:20
Speaker 2: That's Bloomberg Law reporter Suzanne Monnac, And that's it for
35:24
Speaker 2: this edition of the Bloomberg Law Show. Remember you can
35:27
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35:30
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