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Powell Investigation, Uvalde School Shooting & Lindsey Halligan · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grosseol from Bloomberg Radio.
0:08
Speaker 2: On Friday, the Department of Justice served the Federal Reserve
0:11
Speaker 2: with grand jury subpoenas threatening a criminal indictment related to
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Speaker 2: my testimony before the Senate Banking Committee last June.
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Speaker 3: In an unusual, forceful written in video statement released Sunday evening,
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Speaker 3: Federal Reserve Chair Jerome Powell announced an unprecedented move by
0:29
Speaker 3: the Trump administration the threat of a criminal indictment over
0:34
Speaker 3: Powell's congressional testimony in June on ongoing renovations of the
0:39
Speaker 3: Fed's headquarters. But Powell said the move should be seen
0:43
Speaker 3: in the broader context of the administration's threats and ongoing pressure.
0:49
Speaker 2: The threat of criminal charges is a consequence of the
0:51
Speaker 2: Federal Reserve setting interest rates based on our best assessment
0:56
Speaker 2: of what will serve the public, rather than following the
0:58
Speaker 2: preferences of the present. This is about whether the Fed
1:02
Speaker 2: will be able to continue to set interest rates based
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Speaker 2: on evidence and economic conditions, or whether instead monetary policy
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Speaker 2: will be directed by political pressure or intimidation.
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Speaker 3: There was rare pushback from the Republicans over the criminal investigation.
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Speaker 3: Senator Tom Tillis vowed to oppose any Trump nominees to
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Speaker 3: the FED until the matter of the grand jury investigation
1:24
Speaker 3: into Powell is resolved, and other Republican senators also offered
1:29
Speaker 3: pushback on the investigation. Joining me is Elliott Stein Bloomberg
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Speaker 3: Intelligence senior litigation analyst Elliott So this investigation is connected
1:40
Speaker 3: to his congressional testimony, tell us more about it.
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Speaker 4: Yeah, that's right. The FED has been undergoing renovations of
1:48
Speaker 4: its building for several years now, and Chairman Powell testified
1:52
Speaker 4: to Congress in June about those renovations because the Trump
1:56
Speaker 4: administration had been lobbying criticisms at at the chair and
2:01
Speaker 4: I think Republicans in Congress picked up on that as well.
2:04
Speaker 4: Although you know, the larger context, of course, is that
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Speaker 4: the Trump administration and Trump himself have been very dissatisfied
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Speaker 4: with Chairman Powell and his policy on interest rates. So
2:14
Speaker 4: that's sort of a broader context, which Chairman Powell alluded
2:17
Speaker 4: to in his video response last night. But yeah, the
2:20
Speaker 4: allegations that the subpoenas are based on are that Derman
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Speaker 4: Powell lied to Congress in his testimony in June concerning
2:30
Speaker 4: the renovations, and the alleged cost overruns of those renovations.
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Speaker 3: So it's about the renovations. Do we know exactly what
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Speaker 3: they're claiming Powell lied about.
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Speaker 4: Well, it relates to certain aspects of the renovation that
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Speaker 4: have to do with like VIP dining rooms and the
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Speaker 4: special elevators, and the type of marble that's being used,
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Speaker 4: and the discrepancies between what are in the documents that
3:00
Speaker 4: were submitted to the relevant agencies several years ago versus
3:05
Speaker 4: what Powell testified about in June. And so, you know,
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Speaker 4: more specifically, the accusations are that these details, you know,
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Speaker 4: concerning the marble and the VIP dining room, et cetera,
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Speaker 4: are you know, extravagant and too expensive. And even though
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Speaker 4: those details were in the planning documents, when Powell was
3:26
Speaker 4: asked about them in his testimony, he seemed to suggest
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Speaker 4: that those weren't exactly the types of material that was
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Speaker 4: going to be used or the type of specifications that
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Speaker 4: were going to be included in the project. So it's
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Speaker 4: sort of those discrepancies that the administration was criticizing, and
3:44
Speaker 4: following his testimony to Congress in June, a congresswoman from
3:49
Speaker 4: Florida referred the matter to the Justice Department, you know,
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Speaker 4: sort of along the lines of what the Trump administration
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Speaker 4: had been criticizing.
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Speaker 3: I mean, if everyone who had describedancies in their testimony
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Speaker 3: before Congress was prosecuted, the Justice Department wouldn't have time
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Speaker 3: for much else. These cases are not easy to prove.
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Speaker 3: Where's the materiality and where's the intent?
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Speaker 4: Yeah, I mean, in general, it's hard to prove criminal
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Speaker 4: intent on a matter like this. It seems very unlikely
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Speaker 4: that this is the type of thing that the chairman
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Speaker 4: of the Federal Reserve would intentionally be lying about to Congress.
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Speaker 4: It seems like there's reasonable explanations for the discrepancies, including
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Speaker 4: what Powell has explained and what the Federal Reserve itself
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Speaker 4: posted on its website in a FAQ after his testimony,
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Speaker 4: and that is that the Federal Reserve is allowed to
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Speaker 4: make modest modifications to what was in the planning documents.
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Speaker 4: And so that's really what's happening here. And so there
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Speaker 4: really isn't, you know, any material discrepancy between what Powell
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Speaker 4: said and his testimony and what's in the planning documents.
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Speaker 4: Certainly nothing that would rise to a criminal offense. And
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Speaker 4: I think that's, you know, in part why you're seeing
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Speaker 4: even Republican senators and congressman pushing back on the news
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Speaker 4: of the subpoena, saying, you know, this is too much,
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Speaker 4: and you know we value an independent FED and we
5:15
Speaker 4: want to see this issue resolved quickly. And Senator Tom
5:19
Speaker 4: Tillis in particular noted, and he's on the Senate Banking Committee,
5:23
Speaker 4: who will oversee the nominations and confirmations of whoever Trump
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Speaker 4: names to replace Stephen Myron with the anticipation of that
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Speaker 4: person becoming the Chair of the FED when Chairman Powell's
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Speaker 4: term ends in May. We're seeing Senator Tillis saying, look,
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Speaker 4: I'm going to be reluctant to push forward any nomination,
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Speaker 4: certainly not going to confirm anyone until this investigation is resolved.
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Speaker 3: With Tillis's and some other Republican senator's opposition, this could
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Speaker 3: backfire on Trump. It could also backfire because it could
5:57
Speaker 3: give Powell motivation to stay on as if we had
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Speaker 3: governor after his term as chair expires in May.
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Speaker 1: Yeah.
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Speaker 4: No, I think that's exactly read. I think there's a
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Speaker 4: number of unintended consequences that could backfire in the Trump administration.
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Speaker 1: Here.
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Speaker 4: You named a couple of them. One is the nomination
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Speaker 4: process could be stalled. Another is, like you said, it
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Speaker 4: could motivate Powell to stay on as a governor even
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Speaker 4: after his term as chair ends. There's been a question
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Speaker 4: about what he intends to do.
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Speaker 1: You know.
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Speaker 4: Traditionally chairs, you know, resigned from the board after their
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Speaker 4: term as chair ends and they don't stay on as governor.
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Speaker 4: But you know, in an effort to maintain FED independence,
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Speaker 4: this may motivate him to stay on. And then don't
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Speaker 4: forget next week on January twenty, first, we have argument
6:39
Speaker 4: in the Supreme Court in at LIASA. Cookcase. You know,
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Speaker 4: the Supreme Court is not completely isolated from you know,
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Speaker 4: news headlines, and they may see this as yet another
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Speaker 4: effort to get rid of FED independence. And we've already
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Speaker 4: seen comments from Justice Kavanaugh recently in the FTC Slaughter
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Speaker 4: case suggesting that he was very concerned about FED independence.
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Speaker 4: So to the extent the Supreme Court is already leaning
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Speaker 4: towards the ruling in Lisa Cook's favor that would support
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Speaker 4: FED independence and make it harder for the President to
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Speaker 4: get rid of FED governors. This news, this subpoena may
7:16
Speaker 4: motivate the Supreme Court to write an opinion that actually
7:20
Speaker 4: makes it harder for the president to fire a Federal
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Speaker 4: Reserve Board governor without you know, real cause.
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Speaker 3: Has President Trump been attacking the independence of the FED
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Speaker 3: since the beginning of his term? Is it something new?
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Speaker 4: I'm pretty sure this has been going on since his
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Speaker 4: term started, maybe even before, where he's been criticizing Tarmn Powell.
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Speaker 4: But I mean the broader context is, you know that
7:44
Speaker 4: one of the hallmarks of this administration has been, you know,
7:48
Speaker 4: this unitary executive theory, where the president aims to establish
7:53
Speaker 4: and maintain complete control over the executive brand. And you know,
7:57
Speaker 4: we see that in obviously many many respects, but in
8:01
Speaker 4: particular we've seen it with the firing of commissioners of
8:04
Speaker 4: independent agencies like the FTC, which I mentioned earlier, and
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Speaker 4: the President has tried to extend that to the Federal Reserve.
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Speaker 4: But the Supreme Court, you know, a couple times now,
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Speaker 4: in particular in a ruling last May and then in
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Speaker 4: the argument in the Slaughter case last month, has indicated
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Speaker 4: that the FED is a little bit different. It's a
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Speaker 4: plasi private entity. It's not like other federal agencies. And
8:28
Speaker 4: as a result, this theory of the unitary executive advance
8:31
Speaker 4: may only go so far.
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Speaker 3: What also doesn't make much sense to me is if
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Speaker 3: they start this investigation now and take it to a
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Speaker 3: grand jury, and let's say a grand jury does return
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Speaker 3: with it some kind of indictment. I mean, this would
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Speaker 3: take years to prosecute and go through the appellate courts.
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Speaker 3: Trump might be out of office before the case is over.
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Speaker 4: That's exactly right. I mean I think the trial itself,
8:55
Speaker 4: you know, could move relatively quickly. Criminal cases move relatively quickly.
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Speaker 4: But yeah, if there is an indictment, this is going
9:03
Speaker 4: to drag on past, certainly past May, which is when
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Speaker 4: terror Powell's term as chairman ends. And so you know,
9:11
Speaker 4: to the extent Tom Tillis is serious about stalling the
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Speaker 4: nomination and confirmation process of anybody who is named to
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Speaker 4: replace Tairman Powell's chair you know, we could be in limbo.
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Speaker 3: Whenever I hear about perjury cases, I always think about
9:27
Speaker 3: the Barry Bonds case, which had a lot of unique circumstances,
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Speaker 3: but still it took seven years and his conviction was
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Speaker 3: eventually reversed.
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Speaker 4: You know, I always tell clients don't take the under
9:40
Speaker 4: and if you're betting in terms of how long a
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Speaker 4: litigation takes.
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Speaker 3: It almost always takes longer than you think. Thanks so
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Speaker 3: much for joining me, Elliott. That's Bloomberg Intelligence Senior litigation analyst,
9:52
Speaker 3: Elliott Stein. I'm June Grass. When you're listening to Bloomberg,
9:57
Speaker 3: a jury has been listening to emotion testimony in the
10:01
Speaker 3: trial of a former Uvalde school's police officer accused of
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Speaker 3: endangering dozens of students during the May twenty fourth, twenty
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Speaker 3: twenty two attack at rob Elementary School.
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Speaker 5: I yelled to the kids to get in the classrooms.
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Speaker 2: The second grade teachers had opened their doors.
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Speaker 1: To let us in.
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Speaker 2: I went to the first classroom and I stood outside
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Speaker 2: the door to make sure everybody had gone off the
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Speaker 2: playgrom It.
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Speaker 3: Was one of the worst school shootings in US history,
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Speaker 3: leaving nineteen students and two teachers dead. Nearly four hundred federal, state,
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Speaker 3: and local officers arrived at the school, but seventy minutes
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Speaker 3: passed before a tactical team finally breached the room and
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Speaker 3: killed the shooter. I kept asking the operator, where are
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Speaker 3: the cops?
10:57
Speaker 4: Where are the cops?
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Speaker 3: The defendant and Adrian Gonzalez was among the first officers
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Speaker 3: to arrive on the scene, but prosecutors argue that he
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Speaker 3: failed to stop or delay the gunman.
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Speaker 6: He gets on the radio and says shots are fire.
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Speaker 6: He's wearing black, he's in the parking part. He knows
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Speaker 6: where he is. But Adrian Gonzalez remains.
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Speaker 3: But the defense says Gonzalez is being scapegoated, arguing that
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Speaker 3: he was one of the first officers to enter the
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Speaker 3: school and that he evacuated children as police arrived.
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Speaker 1: The monster who hurt those children, he's dead.
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Speaker 3: My guest is trial attorney David Ring, a partner at
11:44
Speaker 3: Taylor and Ring. Dave tell us about the charges in
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Speaker 3: the case.
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Speaker 1: The defendant is a former police officer for the Uvaldi
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Speaker 1: School District and he was one of the very first
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Speaker 1: responders to this horrific scene of this school shooting. And
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Speaker 1: he's being criminally charged with twenty nine counts felony counts
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Speaker 1: of abandoning or endangering a child. And what is that about.
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Speaker 1: The prosecution is basically claiming that officer Gonzalez failed to
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Speaker 1: act when he came on the scene. He failed to
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Speaker 1: do what he was trained to do. And the twenty
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Speaker 1: nine counts are for these children that were killed or
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Speaker 1: harmed in this horrific shooting.
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Speaker 3: There were nearly four hundred officers from various agencies involved
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Speaker 3: in some degree to the police response, and they waited
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Speaker 3: more than seventy minutes before a tactical team finally reached
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Speaker 3: the room and killed the shooter. Why is Gonzalez being
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Speaker 3: charged and not any of the hundreds of others.
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Speaker 1: The prosecution's theory as to why Officer Gonzales is being
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Speaker 1: charged is because he was one of the first, if
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Speaker 1: not the first, first officer on the scene, and the
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Speaker 1: prosecution claims that Gonzalez had the opportunity to engage the
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Speaker 1: gunman before he really got to fire off too many shots,
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Speaker 1: and he failed to do so. They can't make that
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Speaker 1: argument about many of the other officers because they obviously
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Speaker 1: arrived later on the scene. The other important part of
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Speaker 1: this prosecution is that the prosecution can argue that Officer
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Speaker 1: Gonzalez had received active shooter training as part of his
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Speaker 1: training as a police officer, and that he knew what
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Speaker 1: he was supposed to do and yet disregarded that training and,
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Speaker 1: according to the prosecution, did really nothing. That's why he's
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Speaker 1: being charged. The other person, whose case has not started
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Speaker 1: yet is the commanding officer, and it's similar counts and
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Speaker 1: dangering children. But basically, the theory against him is that
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Speaker 1: he failed to put in action all the things he
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Speaker 1: was supposed to do to control this scene.
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Speaker 3: So what is Gonzalez's basic defense so far?
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Speaker 1: Gonzalez's defense is that he came onto the scene and
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Speaker 1: he never saw the shooter. He did not know where
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Speaker 1: the shooter was, never saw the shooter. You couldn't engage
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Speaker 1: the shooter if you didn't know where he was. He
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Speaker 1: also says he actually did things. He helped kids evacuate
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Speaker 1: from the school from a different part of the building,
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Speaker 1: and then at some point, he says, when other officers arrived,
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Speaker 1: he was being fired upon, or at least there were
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Speaker 1: bullets flying from some location that would put his life
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Speaker 1: in danger if he tried to engage the shooter. So
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Speaker 1: he's got several defenses to these criminal charges that, if
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Speaker 1: believed by the jury, should exonerate him.
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Speaker 3: Yeah, I'm just wondering how the jury weighs the effect
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Speaker 3: of them the officers waiting seventy minutes, how that sort
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Speaker 3: of weighs in here with his guilt.
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Speaker 1: It's really difficult. Like you said, there are four hundred
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Speaker 1: officers eventually at this scene, and really one of them
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Speaker 1: is being singled out for not doing his job. This
15:08
Speaker 1: is a very very unique type of prosecution. You rarely
15:13
Speaker 1: see this type of prosecution of a police officer, and
15:16
Speaker 1: the reason it's unique. Most of the times when you
15:19
Speaker 1: see a criminal case involving a police officer, it's because
15:22
Speaker 1: they did something actively wrong. They used excessive force and
15:27
Speaker 1: shot and killed someone, or they used excessive violence to
15:31
Speaker 1: harm someone. They actually did something that was criminal. Here,
15:37
Speaker 1: the argument is he did nothing. It's an omission, not
15:42
Speaker 1: an act, and that is a very very difficult crime
15:45
Speaker 1: to prove against a police officer. There have only been
15:48
Speaker 1: a handful of these prosecutions accusing an officer of not
15:52
Speaker 1: doing something, and none of them have been successful.
15:56
Speaker 3: The evidence that the prosecution has been present photos of
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Speaker 3: the scene and the damage left behind that the judge
16:05
Speaker 3: warned were gruesome and shocking. You have witness testimony from
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Speaker 3: former teachers who were sheltered in classrooms, parents of children
16:14
Speaker 3: who lost their lives, forensic experts about weapons and ammunition.
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Speaker 3: So the prosecution is showing this nightmare scenario, this devastating shooting,
16:26
Speaker 3: but so far it doesn't seem to be showing what
16:29
Speaker 3: the defendant dealer didn't do.
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Speaker 1: Look, the prosecution is putting on a case that is
16:35
Speaker 1: they're laying out this horrific, horrific scene, tragedy, horrible photos.
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Speaker 1: So when you hear what's what happened in the number
16:44
Speaker 1: of rounds that were fired by this gunman and all
16:47
Speaker 1: the things that he did, and testimony from the parents
16:51
Speaker 1: and teachers who survived, it's horrific. But so far, not
16:56
Speaker 1: a lot of evidence against Officer Gonzales. And there's been
17:00
Speaker 1: a very very crucial ruling because one of the key
17:03
Speaker 1: issues in this case is that a witness is going
17:07
Speaker 1: to have to place Officer Gonzalez on the south side
17:11
Speaker 1: of this school building early on, because that's where the
17:15
Speaker 1: shooter entered from. And if there's no one, no witnesses
17:18
Speaker 1: that can place him on the south side, then he's
17:21
Speaker 1: going to successfully argue I never saw the shooter. Well
17:24
Speaker 1: early in this trial, a teacher testified that she in
17:29
Speaker 1: fact saw Gonzalez on the south side of the building
17:33
Speaker 1: very very early on. The problem with that was that
17:37
Speaker 1: that was the very first time she had ever told
17:39
Speaker 1: anyone that she had told prosecutors years ago that she
17:44
Speaker 1: never saw officer Gonzalez anywhere, and so when she testified
17:49
Speaker 1: to that at trial, that made the defense bring a
17:53
Speaker 1: mistrial motion because they basically got sandbagged by that testimony.
17:57
Speaker 1: That was something the prosecution had to share with the
18:01
Speaker 1: defense because it is such crucial testimony. And the first
18:05
Speaker 1: time it ever came out was when she was on
18:06
Speaker 1: the witness stand. And so what did the judge do.
18:09
Speaker 1: He didn't grant a mistrial, but he struck this witness's
18:14
Speaker 1: testimony in its entirety. And what does that mean. That
18:18
Speaker 1: means like it never happened. And so she was one
18:21
Speaker 1: of the very few witnesses that would place Officer Gonzalez
18:24
Speaker 1: on the south side of the building. And now her
18:26
Speaker 1: testimony has been stricken. It's a major blow for the prosecution.
18:31
Speaker 3: The judge told the jury to disregard her testimony. That's
18:36
Speaker 3: sort of like unringing the bell. How do they disregard it?
18:41
Speaker 1: It's true, it is unringing the bell. But it happens
18:44
Speaker 1: in every trial where a judge says, you know, someone
18:47
Speaker 1: testified to something improperly or incorrectly, and I'm telling you
18:50
Speaker 1: you are to disregard it. If the jurors follow the law.
18:54
Speaker 1: When they're in deliberations, they are not allowed to discuss
18:57
Speaker 1: that testimony at all. Juris follow the law, and so
19:02
Speaker 1: they're going to be back in the jury room. They're
19:03
Speaker 1: going to say there wasn't a single witness who placed
19:06
Speaker 1: Officer in Gonzales on the south side of the building
19:09
Speaker 1: where the shooter was. And if someone says, well, this
19:12
Speaker 1: teacher did, they say, well, we can't consider that, so
19:14
Speaker 1: therefore there's no evidence of that. So that's how it
19:17
Speaker 1: plays out. And the other way it plays out is
19:20
Speaker 1: if he is convicted and it goes to the court
19:22
Speaker 1: of appeal, that will be a very significant issue.
19:25
Speaker 3: The way for us, the benefits and disadvantages of having
19:30
Speaker 3: him testify.
19:32
Speaker 1: It's going to be very interesting if Officer Gonzalez testifies.
19:36
Speaker 1: You know, the prose of him testifying is that he
19:39
Speaker 1: takes the witness stand and he can explain his actions
19:43
Speaker 1: to the jury. He can tell them I arrived on
19:46
Speaker 1: the scene, and I did this, and I did that,
19:48
Speaker 1: and I helped kids evacuate, and I didn't know where
19:51
Speaker 1: the shooter was. And I was never on the south side,
19:54
Speaker 1: and I never saw the shooter. I didn't know where
19:56
Speaker 1: he was. I didn't know where the bullets were coming from.
19:59
Speaker 1: And that's powerful testimony coming from him. And if he's
20:02
Speaker 1: a likable person, a sympathetic person, he gets to talk
20:06
Speaker 1: about his career in law enforcement, it makes it very
20:09
Speaker 1: difficult for a jury to convict him and put all
20:12
Speaker 1: the blame on him. So that's the pro for him
20:16
Speaker 1: taking the stand and testifying. I mean, obviously the downside
20:21
Speaker 1: is any time a criminal defendant takes the stand, they're
20:24
Speaker 1: open to cross examination and cross examination that the prosecution
20:29
Speaker 1: can really go after him on his training and his
20:32
Speaker 1: failure to follow his training and all the things we've
20:35
Speaker 1: discussed about what their theories are.
20:38
Speaker 3: Do you think the defense will try to present the
20:42
Speaker 3: picture that we discussed about all these officers waiting more
20:46
Speaker 3: than seventy minutes before they entered the building and what
20:50
Speaker 3: effect that had.
20:52
Speaker 1: I mean, that's obviously been part of the trial. But
20:55
Speaker 1: I also think that the defense is really going to
20:58
Speaker 1: hone in on because it is undisputed that officer Gonzalez
21:03
Speaker 1: was one of the first to the scene. So I
21:06
Speaker 1: think the defense will really focus in on one, he
21:10
Speaker 1: did not know where the shooter was. Two, he was
21:14
Speaker 1: not just sitting around doing nothing. He was helping children
21:18
Speaker 1: escape the school from a different location, and three bullets
21:22
Speaker 1: were flying. He didn't know where they were coming from.
21:25
Speaker 1: And if he tried to enter the school and tried
21:28
Speaker 1: to engage the shooter, not knowing where he was all
21:31
Speaker 1: by himself, he probably would have ended up killed.
21:35
Speaker 3: Is this the kind of case that usually is not
21:37
Speaker 3: prosecuted criminally but where we see civil actions for damages?
21:43
Speaker 1: Very very rare you see this type of case prosecuted
21:47
Speaker 1: criminally because, as we discuss, it's an O mission to act,
21:51
Speaker 1: and so you very very rarely see that on the
21:54
Speaker 1: civil side of things. I mean, not to get too
21:57
Speaker 1: deep into the weeds. The problem with that is that
22:01
Speaker 1: the law doesn't allow individuals to sue police officers of
22:08
Speaker 1: law enforcement for not doing a perfect job. Otherwise, every
22:13
Speaker 1: time there was a crime and the crime wasn't solved
22:17
Speaker 1: or the investigation wasn't done perfectly, there'd be a lawsuit
22:20
Speaker 1: against a police officer like, hey, you should have done this,
22:23
Speaker 1: you should have done that, And we a society don't
22:25
Speaker 1: want that. That's not efficient or effective, and so it'd
22:29
Speaker 1: be very difficult for a civil case to survive against
22:32
Speaker 1: officer Gonzalez.
22:34
Speaker 3: Thanks so much for joining me. Dave that's trial attorney
22:36
Speaker 3: David Ring of Tailor and Ring this is Bloomberg. A
22:41
Speaker 3: Trump appointed judge has ordered Lindsay Halligan to explain why
22:46
Speaker 3: she's continuing to call herself the US attorney for the
22:50
Speaker 3: Eastern District of Virginia, even though another judge found in
22:54
Speaker 3: November that she'd been illegally appointed to the position. That
22:58
Speaker 3: November finding led to the dismissal of cases against former
23:02
Speaker 3: FBI Director James Comy and New York Attorney General Letitia James.
23:07
Speaker 3: Judge David Novak's order on Tuesday gave Halligan seven days
23:12
Speaker 3: to file a pleading that justifies why the court shouldn't
23:16
Speaker 3: strike her title from indictments and explain why her identification
23:21
Speaker 3: does not constitute a false or misleading statement. The order
23:25
Speaker 3: came in the case of a man indicted last month
23:28
Speaker 3: on charges of carjacking and attempted bank robbery. The judge
23:33
Speaker 3: noted that his order was on his own initiative, rather
23:37
Speaker 3: than in response to any motion by litigants in the case,
23:40
Speaker 3: and on a side note, the second highest ranking federal
23:44
Speaker 3: prosecutor in the Eastern District of Virginia was fired today
23:49
Speaker 3: after he reportedly refused to help lead the department's prosecution
23:54
Speaker 3: of Komy. My guest is constitutional law expert Harold Krant,
23:59
Speaker 3: a professor at the SHO Chicago Kent College of Law.
24:02
Speaker 5: Yes, so, Mintya Halligan has been deemed to be unlawfully
24:06
Speaker 5: appointed because the President hasn't followed Congress's diagram or activity
24:11
Speaker 5: in the Appointments Act, and so the President decided not
24:14
Speaker 5: to seek Senate confirmation for a number of posts. There
24:18
Speaker 5: have been five interim US attorneys who's been appointed by
24:22
Speaker 5: President Trump who's been found disqualified simply because the President
24:26
Speaker 5: has decided not to follow the statute and not to
24:28
Speaker 5: present the name of the candidate to the Senate for ratification. Now,
24:33
Speaker 5: in this case, after the judge has found her to
24:36
Speaker 5: be improperly appointed, she just decided to stay on pending appeal.
24:41
Speaker 5: So she made her own decision that it was okay
24:44
Speaker 5: for her to continue.
24:45
Speaker 3: Acting even though there was an orders.
24:47
Speaker 5: For founding that she had been disqualified. So another judge
24:50
Speaker 5: is contesting that, and basically they were saying, is you
24:53
Speaker 5: should have stepped away while the appeal was pending and
24:56
Speaker 5: to see if you could be reinstated or not.
25:00
Speaker 3: How unusual is it for a judge to issue an
25:03
Speaker 3: order like this on his or her own In other words,
25:07
Speaker 3: there was no defendant here asking him to issue this order.
25:10
Speaker 5: Well, what's interesting is that she has been seeking activities
25:14
Speaker 5: that can only be done by a US attorney, And
25:17
Speaker 5: so what the judge is saying, which is similar to
25:20
Speaker 5: what a judge that in New York in a different case.
25:22
Speaker 5: I'm sure we'll turn to in Letitia James case, you know,
25:25
Speaker 5: said is you have no authority to take this particular action,
25:29
Speaker 5: whether it's a tax action, it's indictment, or something else,
25:32
Speaker 5: because you're not the official US attorney, and therefore you
25:35
Speaker 5: may be making a false statement and subject to either
25:38
Speaker 5: a federal violation or to contempt a court because you
25:41
Speaker 5: are basically lying to the court by affirming that you
25:45
Speaker 5: have the authority to take the action that you did.
25:48
Speaker 3: He also alluded to the possibility that she could be
25:51
Speaker 3: disbarred from practicing in that jurisdiction.
25:54
Speaker 5: Yeah, because if she's making false statements to the court,
25:57
Speaker 5: that is a reason for disbarment, and the bar Association,
26:01
Speaker 5: if it's refer to case, we'll have to take that
26:03
Speaker 5: under its advisement.
26:04
Speaker 3: The judge Novak ordered that Halligan sign her response, and
26:09
Speaker 3: that sort of goes towards this growing trend of federal
26:13
Speaker 3: judges doubting whether the Justice Departments in court statements can
26:19
Speaker 3: be trusted. I mean, we had the judge in Chicago
26:23
Speaker 3: in the case over the use of the National Guard
26:26
Speaker 3: there accused the Trump administration of making false statements in court.
26:31
Speaker 3: The judges just don't know that they can believe what said.
26:35
Speaker 5: Yeah, I mean, obviously judge also looked at tape information
26:38
Speaker 5: at testimony basically found the testimony of the border patrol
26:44
Speaker 5: to be simply not credible in light of all the
26:46
Speaker 5: other evidences introduced. I'm afraid that's just said. The same
26:49
Speaker 5: thing in the Minnesota shooting is that there's going to
26:51
Speaker 5: be false statements that just are inconsistent with all the
26:54
Speaker 5: video footage about what really happened in that case.
26:58
Speaker 3: Turn to Letitia James for moment. What's happening there.
27:01
Speaker 5: Well, the President simply is using the Justice Department to
27:05
Speaker 5: try to fare it out wrongdoing against his political enemies.
27:08
Speaker 5: This is the oldest sort of trick of a kind
27:10
Speaker 5: of you know, autocratic ruler is using what he can
27:14
Speaker 5: to sort of take revenge upon individuals who he perceived
27:17
Speaker 5: has wronged him. Obviously, the Tisha James foiled that huge
27:21
Speaker 5: civil lawsuit against him as Attorney General of New York,
27:24
Speaker 5: and he first tried to get her on mortgage fraud
27:27
Speaker 5: that was thrown out, and now he's continuing an investigation.
27:31
Speaker 5: This investigation goes back to twenty eighteen and is inquiring
27:36
Speaker 5: whether or not she improperly used campaign funds to stiphen
27:40
Speaker 5: them off to her hairdresser, who evidently was helping her
27:44
Speaker 5: in the campaign. You know, who knows what happened in
27:46
Speaker 5: twenty eighteen, But for the Justice Department to get involved
27:49
Speaker 5: in something almost eight years ago is just written all
27:54
Speaker 5: over it.
27:54
Speaker 1: Just vengeance.
27:55
Speaker 5: They're just scouring the record to see how they can
27:57
Speaker 5: make life miserable for Letitia James. And so that's what's
28:01
Speaker 5: transpiring at the moment in her case.
28:04
Speaker 3: And that's a prosecutor in Northern New York.
28:07
Speaker 5: It's used to train John Starcne and in that case
28:10
Speaker 5: he's an interim. In that case, the court found that
28:13
Speaker 5: John Starcone, like Lindsay Halligan, like others, improperly stayed in
28:17
Speaker 5: office passed the time allotted to him under the vacancies
28:20
Speaker 5: Act and therefore is inappropriate and should not be involved
28:26
Speaker 5: in any kind of power that is required of a
28:30
Speaker 5: head prosecutor. In another case, she threw out his peanut
28:34
Speaker 5: for tax information that he signs, saying you're not legitimate.
28:37
Speaker 5: And therefore that is the fifth again fight between a
28:43
Speaker 5: acting you as attorney and the courts simply on the
28:46
Speaker 5: basis that they're not properly appointed to their jobs because
28:50
Speaker 5: the presidents refused to go before the Senate for no
28:53
Speaker 5: reason that I can understand.
28:55
Speaker 3: So there are several cases you mentioned. Judge in California
28:58
Speaker 3: ruled in October at the US Attorney there Bill as
29:03
Speaker 3: Sale couldn't serve as the acting US Attorney in Los Angeles,
29:07
Speaker 3: but allowed him to keep supervising the Federal Prosecutor's office,
29:11
Speaker 3: but without the acting US Attorney title. So why do that?
29:15
Speaker 3: Why not? You know, if you make a decision, enforce it.
29:19
Speaker 1: Well.
29:19
Speaker 5: I think the trick here is that there are certain
29:22
Speaker 5: things by statute that only a US Attorney or someone
29:26
Speaker 5: in that position can do, such as the tax returney
29:29
Speaker 5: that we discussed earlier. Courts can fudge it if they
29:31
Speaker 5: want to say, well, you can serve as a prosecutor
29:34
Speaker 5: and you could actually help in the office. You just
29:36
Speaker 5: can't take certain responsibilities that Congress has allocated only to
29:41
Speaker 5: the top official. So that's sort of a compromise that
29:44
Speaker 5: some courts have taken. You know, in each case there's
29:47
Speaker 5: a little bit of confusion, there's little pandemonium chaos in
29:50
Speaker 5: the offices. But again, all that has to be clarified
29:53
Speaker 5: is the president can submit the name to the Senate
29:55
Speaker 5: for ratification.
29:56
Speaker 3: And in the case of the new Jersey US attorney
30:00
Speaker 3: who Trump appointed his former personal attorney, Alina Habba, the
30:04
Speaker 3: Third Circuit, they are ruled that that was not legal
30:08
Speaker 3: and she resigned, But there's still no one in that position.
30:12
Speaker 3: I mean, all these instances, doesn't this open up prosecutions
30:18
Speaker 3: and you know, grand jury indictments to challenges by the defense.
30:22
Speaker 3: I mean, the Trump administration is preferring to keep these
30:26
Speaker 3: people in rather than to have solid prosecutions.
30:31
Speaker 5: It seems to me, Yeah, it's undermining the rule of
30:35
Speaker 5: the opposites. It's undermining potential prosecutions, and as far as
30:39
Speaker 5: I can see, for no reason other than stubbliness, and
30:42
Speaker 5: it's just not doing a favor to the criminal justice system.
30:46
Speaker 3: And on the other side of the Ledger sort of
30:49
Speaker 3: we have the Trump administration trying to get people out
30:51
Speaker 3: of their positions, and so, you know, it was revealed
30:55
Speaker 3: that subpoenas were issued to FED shared Jr. Own Powell.
30:59
Speaker 3: And I'm one wondering, you know, how much of this
31:02
Speaker 3: is because the Supreme Court has refused to draw a
31:05
Speaker 3: line about Trump firing people, and even the presidential Immunity
31:12
Speaker 3: decision gives him so much leeway that how much of
31:15
Speaker 3: this can be blamed on Supreme Court.
31:19
Speaker 5: I don't think entirely, because the Supreme Court twice at
31:22
Speaker 5: least in dicta have said that the FED is different,
31:24
Speaker 5: that they're going to sort of signaling that there's going
31:26
Speaker 5: to be a carve out for the FED to keep
31:29
Speaker 5: its independency. I think this is more sort of a
31:32
Speaker 5: petty vindictiveness on the part of the administration because your
31:35
Speaker 5: own pile hasn't count out to what the President wants
31:38
Speaker 5: him to do, so he's going to use the power
31:40
Speaker 5: of the office to sort of make life miserable for Powell.
31:43
Speaker 5: And you know it's silly, is his term as chair
31:46
Speaker 5: is up in within a matter of months. But nonetheless,
31:48
Speaker 5: the President is you know, sort of continuing to hound
31:51
Speaker 5: him through these subpoenas, and even some publican centers say,
31:55
Speaker 5: why are you doing this? This is going to upset
31:57
Speaker 5: the stability of our financial system.
32:00
Speaker 3: The Justice Department under Trump, in many instances, has struggled
32:04
Speaker 3: to get prosecutions off the ground, even at times having
32:08
Speaker 3: grand jury say no. And there's that old saying that
32:11
Speaker 3: we all know that a grand jury will and die
32:13
Speaker 3: to ham Sandwich, but apparently not. I'm wondering about the
32:17
Speaker 3: level the quality of prosecutors now at the Justice Department,
32:23
Speaker 3: whether it's you know, the quality or they're just afraid
32:26
Speaker 3: to do their to do what they have to do.
32:29
Speaker 1: No.
32:29
Speaker 5: Everybody who I think is witnessing what's happening to the
32:34
Speaker 5: justice part, I think there's been a huge hit on
32:36
Speaker 5: the quality and the talent and the attitude of people
32:40
Speaker 5: who are still there. And so if you put those
32:43
Speaker 5: factors together, you're not going to be as effective as
32:46
Speaker 5: a prosecutor. And because of that, you know, we're going
32:49
Speaker 5: to see sort of a hit to some of the
32:52
Speaker 5: criminal prosecution efforts by the Justice Department all around the
32:55
Speaker 5: country because again morale, lack of personnel, because of personal frictions,
33:02
Speaker 5: and because of the loss of faith in the court system.
33:05
Speaker 5: You put all that together, and you know this is
33:07
Speaker 5: going to be a heyday for defense players.
33:09
Speaker 3: Thanks so much, Hal. That's Professor Harold Krent of the
33:12
Speaker 3: Chicago Kent College of Law. And that's it for this
33:16
Speaker 3: edition of The Bloomberg Law Show. Remember you can always
33:19
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33:22
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