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Weekend Law: Mangione Charges, TikTok Ban & Clemency · Bloomberg Law

0:03
Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
0:10
Speaker 2: This act of terrorism and the violence that stems from
0:15
Speaker 2: it is something that would not be tolerated in the city.
0:19
Speaker 2: We wanted to personally be here to show the symbolism
0:24
Speaker 2: of leading from the front.
0:26
Speaker 3: It's never happened before the Mayor of New York City
0:29
Speaker 3: meeting the aircraft transporting a murder suspect, and it was
0:33
Speaker 3: quite a spectacle at a Lower Manhattan heliport on Thursday afternoon,
0:37
Speaker 3: as Luigi Mangioni, dressed in a bright orange jumpsuit and handcuffed,
0:42
Speaker 3: made the long walk from a helicopter to a waiting suv,
0:46
Speaker 3: surrounded by heavily armed law enforcement officers wearing bulletproof vests
0:51
Speaker 3: and carrying long guns, and following behind Mayor Eric Adams
0:56
Speaker 3: and the New York City Police Commissioner. The so called
0:59
Speaker 3: purp walk as a complete departure from the way federal
1:02
Speaker 3: authorities normally handle the transfer of suspects, but the handling
1:07
Speaker 3: of the Mangioni case by both state and federal authorities
1:10
Speaker 3: seems to be a departure from other criminal cases in
1:13
Speaker 3: many respects. The twenty six year old mangione is accused
1:17
Speaker 3: of the brazen murder of United Health Group CEO Brian Thompson,
1:22
Speaker 3: allegedly shooting him from behind with a nine millimeter ghost
1:25
Speaker 3: gun on December fourth. On Tuesday, Manhattan District Attorney Alvin
1:30
Speaker 3: Bragg announced the indictment of Mangioni on eleven counts, including
1:34
Speaker 3: first degree murder, saying the shooting was a carefully choreographed
1:39
Speaker 3: act of terrorism.
1:40
Speaker 4: As we allege the defendant in that case brazenly shot
1:44
Speaker 4: mister Thompson twice in Midtel, Manhattan. It was targeted, premeditated
1:49
Speaker 4: admitt to so terror.
1:51
Speaker 3: And then before Mangioni was even arraigned on the state charges,
1:55
Speaker 3: the federal government unexpectedly charged him with murder and stocking,
2:00
Speaker 3: with one of the charges carrying a possible death sentence.
2:03
Speaker 3: Joining me is Palm Beach County State Attorney Dave Arenberg. Dave,
2:08
Speaker 3: I've never seen a purp walk quite like this, and
2:11
Speaker 3: the Feds don't usually do purp walks or photo ops.
2:14
Speaker 3: Why here, Wow?
2:16
Speaker 1: You know, this is an internationally watched case and he's
2:20
Speaker 1: being treated differently. The reward money was larger and faster
2:24
Speaker 1: and coming. The attention given to it is much greater
2:28
Speaker 1: than any other case. He's a folk here among some
2:31
Speaker 1: and I think this is a statement meant that you're
2:33
Speaker 1: going to treat him like the criminal that he is,
2:35
Speaker 1: as opposed to a big time celebrity. But in so doing,
2:39
Speaker 1: it looks like they're treating with a celebrity. And so
2:42
Speaker 1: nothing about this case seems.
2:43
Speaker 5: To be normal.
2:44
Speaker 3: So murder is generally not a federal charge. There were
2:49
Speaker 3: almost four hundred homicides in New York City last year,
2:52
Speaker 3: and you didn't see the federal government getting involved. So
2:55
Speaker 3: why are federal prosecutors filing charges against Mangioni in the
3:00
Speaker 3: case of a murder that happened in New York City.
3:03
Speaker 1: Well, if this was the Trump administration, I'd say it's
3:05
Speaker 1: because they don't trust the Manhattan DA, But this is
3:08
Speaker 1: still the Biden administration, and I think just because of
3:11
Speaker 1: the international interest in this case, that they're coming in
3:14
Speaker 1: to make sure that nothing goes wrong at the state level.
3:16
Speaker 1: It's like a backup. But it is unusual because usually
3:20
Speaker 1: it's one or the other, not both. But there's nothing
3:22
Speaker 1: usual about this case. And I think one of the
3:24
Speaker 1: reasons why the federal government is getting involved here, it's
3:27
Speaker 1: important to them and to a lot of people that
3:30
Speaker 1: there's not a precedent set that glorifies murder, and right
3:33
Speaker 1: now we're seeing too many people glorify this murder and
3:37
Speaker 1: treat him like a hero. When he killed a father
3:40
Speaker 1: of two, and he did so by lying in wait,
3:42
Speaker 1: wearing a mask, waiting for him to walk by, and
3:45
Speaker 1: then shooting him in the back and then running away,
3:47
Speaker 1: not quite an act of heroism.
3:49
Speaker 3: Federal prosecutors could seek the death penalty for the count
3:53
Speaker 3: of using a firearm to commit murder. Whether to seek
3:56
Speaker 3: the death penalty involves a process within the Justice to apartment.
4:01
Speaker 3: Do you think they're likely to go that far?
4:03
Speaker 1: I do think that, based on Donald Trump's statements about
4:06
Speaker 1: this case, that in the next administration, they could seek
4:09
Speaker 1: the death penalty, even if they don't seek initially, because
4:12
Speaker 1: right now there's a moretorium on the death penalty at
4:14
Speaker 1: the federal level. But that's going to change, and so yes,
4:16
Speaker 1: I do think maybe that's one difference between the state
4:19
Speaker 1: and the federal systems here is that the death penalty
4:21
Speaker 1: is outlawed in New York, but a federal case can
4:25
Speaker 1: impose a federal death penalty. I think There'll be a
4:27
Speaker 1: lot of outcry, though, because this guy's got a bunch
4:29
Speaker 1: of supporters, and I think that ultimately a jury will
4:34
Speaker 1: not give him the death penalty in this case, but
4:36
Speaker 1: the Fed may try.
4:38
Speaker 3: His attorney, Karen Friedman Agnifilo, said in a statement that
4:43
Speaker 3: the dueling state and federal charges raise double jeopardy concerns.
4:49
Speaker 3: Of course, double jeopardy prevents a person from being tried
4:53
Speaker 3: more than once for the same crime. Do you think
4:56
Speaker 3: these dueling prosecutions violate double jeopardy?
5:00
Speaker 1: Not really, because there's something called the separate sovereign doctrine.
5:03
Speaker 1: These are two different sovereign state and federal and they
5:06
Speaker 1: can both file their own charges based on their own laws,
5:09
Speaker 1: and so you could have that. Now in some states,
5:11
Speaker 1: like New York, there are additional restrictions on states that
5:15
Speaker 1: then pile on. You saw that with Paul Manifort. In fact,
5:18
Speaker 1: the Paul Maniford indictment that came at the state level
5:21
Speaker 1: was thrown out by the courts because of double jeopardy concerns. Now,
5:25
Speaker 1: the Feds, though, don't have the same type of restrictions,
5:29
Speaker 1: and federal law generally will permit a piggyback type of
5:33
Speaker 1: case like this, as long as it's not the exact
5:35
Speaker 1: same statute, which is not. These are two separate statutes
5:38
Speaker 1: and two different types of penalties. In the federal system,
5:40
Speaker 1: you can get the death penalty. The state system you don't.
5:43
Speaker 1: So I do think they'll move forward, and I do
5:45
Speaker 1: respect Karen. She's a great lawyer, and I think she
5:49
Speaker 1: has an argument that the state does seem to be
5:52
Speaker 1: overreaching here with the first three murder charge. But I
5:56
Speaker 1: would disagree with her on her statement that the Fed
6:00
Speaker 1: are engaging in double jeopardy in adding their own charges.
6:03
Speaker 1: There's a lot of case all that says they can
6:05
Speaker 1: do it.
6:07
Speaker 3: I think the federal charges came as a surprise even
6:10
Speaker 3: to the Manhattan District Attorney's office. Mangioni's attorney was apparently
6:15
Speaker 3: ready for his appearance in state court when it was
6:19
Speaker 3: suddenly changed to federal court, and she told the magistrate frankly,
6:24
Speaker 3: I've never seen anything like what's happening here in more
6:28
Speaker 3: than three decades of practicing law. Because the FED swooped in,
6:32
Speaker 3: Mangioni still hasn't appeared in state court for his arraignment
6:36
Speaker 3: on the state charges. It seems like the federal prosecutors
6:40
Speaker 3: and the state prosecutors are at this point not coordinating.
6:43
Speaker 1: Well, well, I wouldn't be the first time. We saw this,
6:45
Speaker 1: most recently in the second assassination attempt against Donald Trump,
6:49
Speaker 1: where you have the FEDS getting indictment against the attempted
6:53
Speaker 1: fascinator and then you have the State of Florida doing
6:57
Speaker 1: a competing, conflicting investigation that has le the state charges.
7:01
Speaker 1: So we're seeing these turb wars more and more. I
7:03
Speaker 1: don't think that's a sign of progress. I think that's
7:05
Speaker 1: a sign of the times.
7:06
Speaker 3: Unfortunately, let's turn to the first degree murder charge in
7:09
Speaker 3: New York with the terrorism enhancement, and the DA said
7:13
Speaker 3: that Mangione intended to intimidate and evoke terror with the killing.
7:19
Speaker 3: Is that an overcharge? Is he reaching there?
7:22
Speaker 1: I respectfully do believe that they're reaching a bit. I
7:25
Speaker 1: think it's an easier case to prove second agree murder,
7:27
Speaker 1: and I realized that they include a second agree murder,
7:31
Speaker 1: and they may want to push a compromised verdict which
7:34
Speaker 1: would be second agree murder where he could face up
7:37
Speaker 1: to life in prison. But I do think when you
7:39
Speaker 1: add the first degree murder charge, it feels like an overreach,
7:42
Speaker 1: and that could cost you some credibility in the eyes
7:44
Speaker 1: of jurors. You look at the prosecution of Daniel Penny,
7:48
Speaker 1: that's the ex marine who killed mister Neelie on the subway. Well,
7:52
Speaker 1: they charged him with manslaughter and a lot of us
7:54
Speaker 1: thought that was an overcharge, and apparently it was because
7:57
Speaker 1: the jury couldn't reach an agreement, and then finally the
7:59
Speaker 1: judge it out and then when it came down to
8:01
Speaker 1: the lesser charge, the easier charge, the jurors had enough
8:05
Speaker 1: and just said now acquittal. And that's the kind of
8:08
Speaker 1: thing that you worry about when you overcharge, that you
8:11
Speaker 1: have juram fatigue, you have jeram mistrusted prosecutors. So you
8:14
Speaker 1: get me really careful here. And I just don't think
8:17
Speaker 1: based on what we know now that you can confidently
8:19
Speaker 1: say that this was an act of terrorism. But maybe
8:21
Speaker 1: you know, they have access information that the rest of
8:23
Speaker 1: us do not have. So we'll see. But as of
8:26
Speaker 1: right now, I do think it's a bit of a reach.
8:28
Speaker 3: When it was just the state charges, it seems like
8:31
Speaker 3: they could have been trying to push him into a
8:33
Speaker 3: guilty plea to avoid life without parole. Now things are
8:37
Speaker 3: more complicated with the added federal charges. Would the defense
8:41
Speaker 3: only agreed to a plea or please if they could
8:44
Speaker 3: get deals with both the state and the feds.
8:47
Speaker 1: Oh, he complicates things for the defense because you could
8:50
Speaker 1: plead guilty the state charges and then still face federal charges.
8:53
Speaker 1: So you want to deal that will cover everything. And
8:57
Speaker 1: with the Feds and the state seemingly in conflict with
8:59
Speaker 1: each other, that makes it harder for defense lawyers to say,
9:01
Speaker 1: all right, everyone, I'll come to the table. Here's one
9:03
Speaker 1: universal settlement. The defense may seek the death penalty. The
9:07
Speaker 1: state is looking for first three murderer, but there is
9:10
Speaker 1: no death penalty there. So there's a lot of moving
9:12
Speaker 1: parts here. And with two different cases, maybe they want
9:15
Speaker 1: to ramp up with more attorneys. They can afford it.
9:18
Speaker 1: The defense has lots of money because this is getting
9:20
Speaker 1: a lot more complicated.
9:22
Speaker 3: Before she was hired to represent Mangioni, his attorney Karen Friedman,
9:27
Speaker 3: Agnifilo suggested on CNN that there might be an insanity
9:32
Speaker 3: defense here. By all accounts, the evidence against him is overwhelming.
9:37
Speaker 3: Is not guilty by reason of insanity the way to
9:41
Speaker 3: go here.
9:42
Speaker 1: I don't think the insanity defense is a good defense. Here.
9:44
Speaker 1: I don't think that will play. And the reason is
9:46
Speaker 1: that to have an insanity defense, you have to have
9:48
Speaker 1: an established medical condition and you cannot know the difference
9:52
Speaker 1: between right and wrong. Well, when you wear a mask
9:55
Speaker 1: and have fake IDs and meticulously plan for a murder,
9:58
Speaker 1: you're definitely able to distinguish between right and wrong. You
10:02
Speaker 1: know what you did was illegal. You know how, we
10:04
Speaker 1: know because you planned for it to not be caught.
10:06
Speaker 1: And then after you ran away and hid and tried
10:10
Speaker 1: to conceal your identity, Well, that shows you knew the
10:12
Speaker 1: difference between right and wrong. You knew what you did
10:14
Speaker 1: was illegal, you knew the consequences of your actions. So
10:16
Speaker 1: I don't think they have much of a chance at
10:18
Speaker 1: an Exvandy defense. Now, they could have a different defense
10:21
Speaker 1: to claim that he was under extreme emotional disturbance, which
10:25
Speaker 1: would make it more of a manslaughter case than a
10:28
Speaker 1: murder case. That could get you between five and twenty
10:30
Speaker 1: five years in prison, as opposed to up to life
10:33
Speaker 1: in prison for murder. That may be a better defense,
10:35
Speaker 1: not a complete acquittal, but something less than murder. And
10:38
Speaker 1: then there's always the specter of jury nullification. It's a
10:42
Speaker 1: prosecutor's worst nightmare where the jury just feels sympathy for
10:46
Speaker 1: the guy and ignores the evidence and ignores the law
10:49
Speaker 1: and then just set them free. That's always a possibility
10:53
Speaker 1: when you're dealing with this kind of unusual case of
10:56
Speaker 1: a defendant who will probably take the stand and probably
10:58
Speaker 1: gain some sympathy from the public, if not members of
11:02
Speaker 1: the jury.
11:03
Speaker 3: So jury selection, which is always important, will be critical
11:07
Speaker 3: in this case. Thanks so much, Dave. That's Dave Ehrenberg,
11:10
Speaker 3: Palm Beach County State Attorney. Manhattan prosecutors say MANCHIONI will
11:15
Speaker 3: be back in court on Monday in state court, this
11:18
Speaker 3: time to enter a plea on the state murder and
11:21
Speaker 3: weapons charges. Coming up next on the Bloomberg Law Show,
11:24
Speaker 3: the Supreme Court fast tracks TikTok's free speech challenge to
11:28
Speaker 3: the law banning the popular app on January nineteenth. If
11:32
Speaker 3: it's not so by its Chinese parent. Remember, you can
11:36
Speaker 3: always get the latest legal news by listening to our
11:38
Speaker 3: Bloomberg Law podcast wherever you get your favorite podcasts. I'm
11:42
Speaker 3: June Grosso and you're listening to Bloomberg.
11:46
Speaker 6: I have a warm spot in my heart for TikTok
11:48
Speaker 6: because I won youth by thirty four points, and there
11:52
Speaker 6: are those that say that TikTok has something to do
11:55
Speaker 6: with it.
11:56
Speaker 3: President elect Donald Trump may have a warm spot in
11:59
Speaker 3: New Hard for TikTok, but the ban on the wildly
12:03
Speaker 3: popular app will go into effect on January nineteenth, the
12:07
Speaker 3: day before he takes office, so it will be up
12:10
Speaker 3: to the Supreme Court to decide on the app's survival.
12:13
Speaker 3: This week, the Justice has agreed to fast track TikTok's
12:17
Speaker 3: free speech challenge to the law that will ban the
12:20
Speaker 3: platform nationwide if it isn't sold by its Chinese parent company.
12:25
Speaker 3: They'll hear arguments on January tenth, TikTok's final legal chance
12:30
Speaker 3: to halt the ban, and it appears to be an
12:33
Speaker 3: uphill battle, after the DC's Circuit Court unanimously upheld the
12:37
Speaker 3: law this month, finding it was a legitimate means of
12:40
Speaker 3: protecting national security and user privacy. Joining me is Eric Goldman,
12:46
Speaker 3: a professor at Santa Clara University Law School and co
12:49
Speaker 3: director of the High Tech Law Institute. Eric the Court
12:52
Speaker 3: has scheduled a special argument day to consider the ban
12:56
Speaker 3: in less than three weeks. It's allotted two hours for
12:59
Speaker 3: the arts arguments. That's double the normal time. How unusual
13:03
Speaker 3: is this and what does it signify?
13:05
Speaker 5: Every Supreme Court case is unusual. It's one of the
13:08
Speaker 5: rarest events in litigation, But this case is unusual for
13:12
Speaker 5: the Supreme Court procedure. They've set up an expedited process
13:16
Speaker 5: that they don't normally follow, and it means that they're
13:19
Speaker 5: going to be moving fast. But they're probably also not
13:21
Speaker 5: going to be able to issue this kind of quality
13:24
Speaker 5: of opinions that we're used to, so they're probably going
13:27
Speaker 5: to have to cut some corners along the way as well.
13:29
Speaker 5: So this is an unusual case for them.
13:31
Speaker 1: In the Bush v.
13:32
Speaker 3: Gore case, the Court ruled the day after they heard
13:36
Speaker 3: oral arguments and just three days after they agreed to
13:39
Speaker 3: take the case. Do you think that with this expedited schedule,
13:44
Speaker 3: they're planning to issue a decision before January nineteenth, when
13:48
Speaker 3: the band goes into effect.
13:49
Speaker 5: I don't think they would have built a schedule like
13:51
Speaker 5: this unless they plan to give some ruling before January nineteenth.
13:55
Speaker 5: But you mentioned bushby Gore, and that's actually a good
13:58
Speaker 5: example of the problem that are awaiting the Supreme Court.
14:02
Speaker 5: Not only was that opinion fragmented in the sense that
14:05
Speaker 5: every judge rope for themselves, but also that opinion has
14:08
Speaker 5: been roundly criticized as being not the same kind of
14:12
Speaker 5: standard quality of judging that we expect from the Supreme Court.
14:16
Speaker 5: So this bush Ris's Gore example is actually a cautionary
14:20
Speaker 5: tale for the Supreme Court. Odds are that they're going
14:22
Speaker 5: to issue multiple opinions and that it might not be
14:26
Speaker 5: to the level of quality that we want.
14:28
Speaker 3: The justices could have temporarily blocked the law while considering
14:33
Speaker 3: the case. That would have taken five votes while hearing
14:37
Speaker 3: the case just takes four votes. But wouldn't that have
14:40
Speaker 3: been a better way to handle this?
14:42
Speaker 5: As an outsider, it looks like what the Supreme Court
14:45
Speaker 5: should have done was put the law on hold until
14:48
Speaker 5: the Supreme Court could do a standard process for its review,
14:53
Speaker 5: not do this expedited corner cutting approach. And I don't
14:57
Speaker 5: know why they didn't do that, but that's the choice
14:59
Speaker 5: they made. And so they've clearly decided that they're going
15:03
Speaker 5: to have to move faster.
15:04
Speaker 3: Are they balancing the First Amendment against national security concerns
15:10
Speaker 3: and the Court's deference to Congress and the executive branch
15:14
Speaker 3: in making national security decisions?
15:17
Speaker 5: That's a good summary, But if you in mind, I'm
15:18
Speaker 5: going to be stated a little bit.
15:20
Speaker 1: Absolutely.
15:21
Speaker 5: The EC Circuit, which hurt the TikTok case and had
15:25
Speaker 5: sent the case up to the Supreme Court, said that
15:28
Speaker 5: the law was censorship, that the laws censored TikTok and
15:32
Speaker 5: its users, but nevertheless that censorship was justified on national
15:37
Speaker 5: security concerns. That creates really two tracks for the Supreme
15:40
Speaker 5: Court to pursue. One track they could pursue is to say,
15:44
Speaker 5: the law of censorship and yet it survives, like the
15:48
Speaker 5: DC Circuit said, because the nationalist security concerns overweighed the
15:53
Speaker 5: laws of free speech. Another track is that they could say,
15:56
Speaker 5: we agree that the law is censorship and that's the
16:00
Speaker 5: reason why it should be struck down. And so the
16:03
Speaker 5: DC Circuit opinion that prestages the Supreme Court's review really
16:07
Speaker 5: set up the Supreme Court to answer that fundamental question,
16:10
Speaker 5: under what circumstances does national security override what is on
16:16
Speaker 5: its space? And everyone seems to agree it's just censorship.
16:19
Speaker 3: Some TikTok users seem to be waking up to the
16:22
Speaker 3: fact that it may be gone. Do you think the
16:25
Speaker 3: Court will address the concerns of the one hundred and
16:28
Speaker 3: seventy million US users.
16:31
Speaker 5: I'm hoping that the Court will be sensitive to the
16:34
Speaker 5: fact that not only does TikTok have free speech trites,
16:38
Speaker 5: but so do all the millions of users, millions of
16:41
Speaker 5: Americans who are talking to each other on TikTok. And
16:45
Speaker 5: even if we disregard TikTok's interests, we still ought to
16:49
Speaker 5: care about the conversations that are taking place by and
16:52
Speaker 5: among Americans on TikTok that are all in jeopardy due
16:55
Speaker 5: to this ban. The DC Circuit really didn't care about
16:59
Speaker 5: that issue. The just lumped it together under the broadheading
17:02
Speaker 5: of TikTok's concerns. They didn't otherwise pay attention to TikTok's
17:06
Speaker 5: user's interests. I'm hopeful the Supreme Court will be more
17:10
Speaker 5: sensitive to that, but we'll have to see.
17:12
Speaker 3: The Roberts Court has been very protective of First Amendment
17:17
Speaker 3: speech rights as well as national security interests. Do you
17:22
Speaker 3: have any idea of how they might rule here.
17:25
Speaker 5: It's hard to predict what the Supreme Court is going
17:27
Speaker 5: to do because there really are two different dynamics pushing
17:31
Speaker 5: them in opposite directions. Back in July, the Supreme Court
17:34
Speaker 5: issued a very strong endorsement of the First Amendment protections
17:38
Speaker 5: for social media. And so if we look at what
17:40
Speaker 5: the Supreme Court has said just a few months ago,
17:43
Speaker 5: they said, if it's censoring social media, that sounds like
17:46
Speaker 5: a First Amendment problem. On the other hand, you had
17:49
Speaker 5: this DC Circuit opinion that was a unanimous opinion saying
17:53
Speaker 5: that the national security concerns here overrode free speech concerns.
17:57
Speaker 5: And the Supreme Court listens to the DC Circuit. It's
18:01
Speaker 5: a well respected court. They put together an opinion that
18:04
Speaker 5: was designed to be persuasive for the Supreme Court. So
18:08
Speaker 5: if we look at what the Supreme Court said in July,
18:10
Speaker 5: it looks like the TikTok band should not succeed. If
18:13
Speaker 5: we look at what the DC Circuit advised the Supreme Court,
18:15
Speaker 5: it looks like the ban should be upheld. And so
18:18
Speaker 5: I don't know which strand is going to override the other.
18:21
Speaker 5: I wouldn't put money on either side of the equation
18:23
Speaker 5: TikTok winning or losing the Supreme Court. I just view
18:26
Speaker 5: the risks as being too hazy to really make an
18:30
Speaker 5: educated gamble. But I also think that the Supreme Court
18:34
Speaker 5: is open to an alternative outcome given what they said
18:38
Speaker 5: in July.
18:39
Speaker 3: So what are the other possible outcomes besides an outright
18:43
Speaker 3: win or loss.
18:44
Speaker 5: One possibility is the Supreme Court says that it can't
18:48
Speaker 5: reach a final decision and that additional work needs to
18:50
Speaker 5: be done by lower courts, so we get a non
18:53
Speaker 5: answer for the Supreme Court. Another possible outcome is that
18:57
Speaker 5: the Supreme Court upholds parts of the band and strikes
19:00
Speaker 5: down other parts. I don't really know what that looks like.
19:03
Speaker 5: We'd have to see, but the point is that it's
19:06
Speaker 5: not as easy as just does the Supreme Court uphold
19:08
Speaker 5: the ban outright or not, because there's a whole bunch
19:10
Speaker 5: of other tools in the Supreme Court's toolkit.
19:13
Speaker 3: Trump takes office the day after the TikTok ban is
19:17
Speaker 3: supposed to go into effect. He's been all over the
19:20
Speaker 3: map about TikTok over the years. He met with executives
19:24
Speaker 3: of TikTok at mar A Lago this week. Let's say
19:27
Speaker 3: he does want to do something to save TikTok. What
19:30
Speaker 3: could he do?
19:31
Speaker 5: By the time Trump takes office, either the TikTok ban
19:35
Speaker 5: will be enjoying permanently or temporarily, or it will be
19:39
Speaker 5: an effect. So the law has a mechanism that gives
19:42
Speaker 5: to present some discrestion with respect to TikTok, but only
19:44
Speaker 5: Biden will be able to exercise that, so that particular
19:48
Speaker 5: option in the statute to delay the effectiveness of law
19:51
Speaker 5: won't be available to him. So at that point, Trump
19:53
Speaker 5: really has two choices if you really want to protect TikTok. First,
19:57
Speaker 5: as he could go back to Congress and ask cong
20:00
Speaker 5: Risk to rethink its banned. I don't think that's going
20:02
Speaker 5: to go anywhere. Even Trump's most loyal fans have been
20:06
Speaker 5: very solidly against anything that looks like it would benefit China,
20:10
Speaker 5: and so I just don't think that even if Trump asks,
20:12
Speaker 5: he's going to get a majority of Congress to change
20:15
Speaker 5: their mind. The other thing that Trump can do is
20:17
Speaker 5: that he could ask the Department of Justice not to
20:20
Speaker 5: enforce the laws, that the Department Justice could take a
20:23
Speaker 5: voluntary stance that those laws in effect, they're not going
20:26
Speaker 5: to devote any prosecutorial resources to it. Trump doesn't have
20:30
Speaker 5: the power to tell the DOJ what to do. He
20:32
Speaker 5: hass to ask. In practice, if he asked the DOJ
20:35
Speaker 5: to do something or not, they would likely do it. However,
20:39
Speaker 5: that only works if everyone around the Department Justice. Believes
20:43
Speaker 5: that the Department Justice won't actually change its mind, and
20:47
Speaker 5: that depends on believing that Trump won't change his mind.
20:50
Speaker 5: And given how mercurial Trump is, how often he has
20:54
Speaker 5: changed his tune, I don't think anyone would believe the
20:57
Speaker 5: Department of Justice if it said that it wasn't going
20:59
Speaker 5: to enforce the law. I just think that everyone would
21:02
Speaker 5: view that as a short term statement, subject to change,
21:06
Speaker 5: and not make any decisions and reliance on it. So
21:10
Speaker 5: I really don't think Trump has any valid options to
21:13
Speaker 5: walk back the ban. You do, they have to go
21:16
Speaker 5: to Congress, or you have to ask the dude do something,
21:19
Speaker 5: which I don't think would really make a difference. So
21:22
Speaker 5: this ban is real, and it's unfortunate that so many
21:25
Speaker 5: Americans don't realize that this band is coming for them.
21:28
Speaker 3: So people say, well, I have TikTok on my phone,
21:31
Speaker 3: I'm still going to use it. Explain what happens if
21:34
Speaker 3: this ban goes into effect.
21:36
Speaker 5: I'm still a little unclear about exactly what would happen
21:39
Speaker 5: post ban. We know that new downloads will become extremely difficult,
21:44
Speaker 5: if not impossible, So the ban affects the app stores.
21:48
Speaker 5: The app stores are going to do whatever the government
21:50
Speaker 5: tells them to do, and so the government tells them
21:53
Speaker 5: to take the apps out of their app stores, they'll
21:54
Speaker 5: do it. So. In addition, other service providers in the
21:59
Speaker 5: US are supposed to not provide support to TikTok, and
22:02
Speaker 5: I don't exactly know what implications that would have for
22:05
Speaker 5: the experience of the users who already have installed the app.
22:09
Speaker 5: I think what's likely to happen is that the app
22:12
Speaker 5: is going to start a death spiral. It won't happen overnight,
22:15
Speaker 5: but over time, people will invest less of their time
22:19
Speaker 5: or content producers will invest less in producing TikTok content,
22:23
Speaker 5: and so over time it becomes a ghost town. That
22:26
Speaker 5: might take months or years. But by stopping the inflow
22:30
Speaker 5: of new users and by making it harder for existing
22:33
Speaker 5: users to take advantage of it, I just think people
22:36
Speaker 5: will start to migrate elsewhere.
22:37
Speaker 1: Yeah.
22:38
Speaker 3: In its papers, TikTok said that being shuttered for even
22:41
Speaker 3: one month would cause it to lose a third of
22:44
Speaker 3: its US users, losing.
22:47
Speaker 5: The users outright. It's also that users are just going
22:50
Speaker 5: to invest less of their time, or content producers will
22:52
Speaker 5: invest less in producing good content. People are just going
22:56
Speaker 5: to take their marbles and play it in some other playgrounds.
22:58
Speaker 5: But the problem with TikTok ban, and the reason why
23:01
Speaker 5: that's so legally significant, is that some conversations won't migrate
23:05
Speaker 5: anywhere else. They'll simply be lost. There's certain ways that
23:09
Speaker 5: TikTok conversations work that don't work on other environments, and
23:12
Speaker 5: there's certain communities that develops on TikTok that won't replicate elsewhere.
23:16
Speaker 5: So though TikTok will become a ghost town and some
23:19
Speaker 5: people will migrate to other services, there's going to be
23:22
Speaker 5: some conversations to get lost in the equation, and that's
23:24
Speaker 5: the real speech arm.
23:26
Speaker 3: TikTok's Chinese parent, Byte Dance, has made it pretty clear
23:30
Speaker 3: that it doesn't intend to sell the app, yet we
23:33
Speaker 3: still hear reports of various people putting together deals to
23:38
Speaker 3: buy it, the latest being billionaire Frank McCourt, the former
23:42
Speaker 3: owner of the Los Angeles Dodgers.
23:44
Speaker 5: Yeah, we don't know what's going on in backroom negotiations.
23:47
Speaker 5: We don't know to what it's done, they're not able
23:49
Speaker 5: to work at a price, or that the Chinese government
23:52
Speaker 5: is blocking the sale behind the scenes. It's really hard
23:55
Speaker 5: to reverse engineer. Why a sale isn't happening. But TikTok
23:59
Speaker 5: has been clear all along that that was not it's
24:01
Speaker 5: game plan, that it was going to accept the ban
24:04
Speaker 5: over a sale. And from my perspective, the idea of
24:07
Speaker 5: sell or ban is really a ban, and yet the
24:11
Speaker 5: DC circuit was open idea. All to Doug had to
24:14
Speaker 5: do was just sell, And from my perspective, I felt
24:16
Speaker 5: offended by that. I felt like that was really toned up.
24:19
Speaker 3: So I guess we'll be talking again on January tenth.
24:22
Speaker 3: Thanks so much, Eric Best, Professor Eric Goleman of Santa
24:25
Speaker 3: Clara University Law School. Coming up next, will Biden issue
24:29
Speaker 3: preemptive pardons? I'm June Grosso and you're listening to Bloomberg.
24:33
Speaker 6: President Biden announced that he is granting clemency to approximately
24:37
Speaker 6: one thy five hundred Americans, the largest act in a
24:41
Speaker 6: single day.
24:42
Speaker 3: When White House Press Secretary Kareeine Jean Pierre announced President
24:47
Speaker 3: Biden's historic clemency package for fifteen hundred convicted criminals, she
24:53
Speaker 3: emphasized that they'd been convicted of nonviolent crimes like drug offenses, fraud,
24:58
Speaker 3: or theft, had turned their lives around and deserved a
25:02
Speaker 3: second chance. However, she failed to mention that clemency was
25:06
Speaker 3: also granted to some defendants, like former Pennsylvania judge Michael Conahan,
25:12
Speaker 3: who orchestrated the Kids for Cash scheme to send some
25:15
Speaker 3: twenty three hundred children to for profit prisons on false
25:20
Speaker 3: charges in exchange for nearly three million dollars in kickbacks.
25:25
Speaker 3: Pennsylvania Governor Josh Shapiro, a Democrat, condemned that grant of clemency.
25:31
Speaker 7: But I do feel strongly that President Biden got it
25:34
Speaker 7: absolutely wrong and created a lot of pain here in
25:39
Speaker 7: northeastern Pennsylvania.
25:41
Speaker 3: Joining me is constitutional law expert Harold Krant, a professor
25:45
Speaker 3: at the Chicago Kent College of Law. How people sometimes
25:49
Speaker 3: confuse pardons and clemency, explain what clemency is.
25:53
Speaker 8: Clemency retains the fact of conviction, any kind of problems
25:59
Speaker 8: with conviction that follow once for life, right to vote
26:02
Speaker 8: in some states, write to hold office, et cetera. But
26:05
Speaker 8: it allows them to be free of any kind of
26:08
Speaker 8: you know, either jail time or other kind of oversights
26:12
Speaker 8: such as probation, drug testing, et cetera. And he granted
26:15
Speaker 8: fifteen hundred people this blessing of clemency for those who
26:20
Speaker 8: had previously been released during COVID because of fear of
26:23
Speaker 8: overcrowding in prisons and the fact that they were non
26:26
Speaker 8: violent offenders. So it was an easy objective way to
26:30
Speaker 8: reach out and show some people mercy who again had
26:33
Speaker 8: been determined previously were non violent and could be released
26:37
Speaker 8: without any kind of problems. So it was a handy way.
26:41
Speaker 8: It wiped the slate clean for the most part for
26:44
Speaker 8: these individuals. But of course it was somewhat controversial because
26:47
Speaker 8: even though these were non violent offenders, he didn't pick
26:50
Speaker 8: and choose amongst them, and so there were some pretty behafters.
26:55
Speaker 8: Let us say, who we see the gift of clemency
26:58
Speaker 8: in that fifteen hundred total.
27:00
Speaker 3: Yeah, one of the grants of clemency went to Judge
27:04
Speaker 3: Michael Conahan, who got seventeen and a half years for
27:07
Speaker 3: orchestrating the infamous Kids for Cash scandal. Pennsylvania Governor Josh
27:12
Speaker 3: Shapiro described the devastating effects of that.
27:15
Speaker 7: This was not only a black eye on the community
27:18
Speaker 7: the Kids for Cash scandal, but it also infected families
27:24
Speaker 7: in really deep and profound in sad ways, some children
27:28
Speaker 7: took their lives because of this. Families were torn apart.
27:33
Speaker 3: Another grant of clemency went to a woman who was
27:36
Speaker 3: convicted of embezzling more than fifty three million dollars in
27:39
Speaker 3: taxpayer money, one of the largest thefts of public funds
27:43
Speaker 3: in Illinois state history. Shouldn't the Biden administration have excluded
27:48
Speaker 3: some of these people with egregious crimes?
27:51
Speaker 8: Yeah, I mean, the question that should be raised is
27:54
Speaker 8: why didn't this happen all during the administration? Should have
27:57
Speaker 8: been more ordered, more carefully sought out to Crondwell, who
28:00
Speaker 8: you just mentioned was the controller in Dixon, Illinois, and
28:03
Speaker 8: she took fifty million dollars from kids, you know, in
28:06
Speaker 8: terms of the ability to educate them. She returned some
28:10
Speaker 8: of it, but still Owes I think at least ten
28:11
Speaker 8: million dollars at least is missing right now. Still, and
28:14
Speaker 8: of course the Pennsylvania Kids for Cash scandal is terrible,
28:17
Speaker 8: and if he had done a case by case analysis
28:21
Speaker 8: of who deserved clemency, they presumably would not have received it.
28:24
Speaker 8: I mean, clearly, they are already out of jail, and they
28:26
Speaker 8: have demonstrated to some authorities that they aren't likely to
28:30
Speaker 8: commit offense again in the future. But do they really
28:32
Speaker 8: merit clemency, wiping off any kind of oversight they have
28:36
Speaker 8: from probation, that's the question. But he couldn't do that
28:39
Speaker 8: because he waited a long time. It wasn't his priority,
28:42
Speaker 8: and he wanted to do something towards the end of
28:44
Speaker 8: the administration. I don't think he's done. So he just
28:47
Speaker 8: used bright line rules of whoever has been previously released
28:51
Speaker 8: as not a danger. He'll let them wipe off any
28:53
Speaker 8: more oversight from their books.
28:56
Speaker 3: President Obama granted three hundred and thirty commutations to violent
29:00
Speaker 3: drug offenders, and that was the most granted in one
29:02
Speaker 3: day in US history until now. I mean, is Biden
29:05
Speaker 3: just trying to achieve a record for the history books.
29:09
Speaker 8: No, I think it's a recognition that better do something late,
29:12
Speaker 8: not perfect, and do nothing at all. And you know,
29:14
Speaker 8: I agree with that. It's just too bad that this
29:16
Speaker 8: was not a priority at all, you know, during his administration,
29:20
Speaker 8: and so he had to address this in more of
29:22
Speaker 8: a kind of a hamhanded way because he didn't have
29:25
Speaker 8: the time to decide which of these fifteen hundred to
29:28
Speaker 8: grant which not.
29:29
Speaker 3: The White House said he's still considering more pardons and
29:33
Speaker 3: commutations and opponents of capital punishment have called on him
29:37
Speaker 3: to empty federal death row by commuting the inmates sentences
29:42
Speaker 3: to life in prison, knowing that Donald Trump is going
29:46
Speaker 3: to once he gets into office, start federal executions again,
29:51
Speaker 3: as he did in his first term.
29:53
Speaker 8: Yeah, I mean, person finding campaigned on a pledge that
29:57
Speaker 8: he was against the death penalty. So the question has arisen,
30:00
Speaker 8: why has he taken so long to decide whether to
30:03
Speaker 8: commute the sentences of those forty individuals who are languishing
30:08
Speaker 8: on death row in federal prisons. Now, there's definitely some
30:12
Speaker 8: bad actors involved in those forty individuals, there's no doubt
30:15
Speaker 8: about it, including the Boston Marathon massacre mastermind. But the
30:20
Speaker 8: question is, if you don't believe in the death penalty
30:23
Speaker 8: as a moral basis, shouldn't you be commuting those sentences?
30:26
Speaker 8: And my guess is he will. But again, why take
30:30
Speaker 8: so lo?
30:31
Speaker 3: The focus has been for the last few months, I mean,
30:34
Speaker 3: since he lost the election whether or not he is
30:37
Speaker 3: going to do preemptive pardons of people who might be
30:42
Speaker 3: targeted by the Justice Department under Trump. Some are saying
30:47
Speaker 3: that would set a bad precedent, but preemptive pardons have
30:51
Speaker 3: been granted before.
30:52
Speaker 8: So Preemptive pardons are part of the president's playbook. Most
30:55
Speaker 8: famous is Gerald Forge preemptive pardon for President Nixon after
30:59
Speaker 8: President mix and resigned through the Watergate scandal. And the
31:03
Speaker 8: way President Ford wrote that was for a preemptively pardon
31:08
Speaker 8: for any kind of illegal activities that he undertook as
31:12
Speaker 8: president of the United States. So that is a precedent
31:15
Speaker 8: which is quite broad. And of course there was a
31:18
Speaker 8: bit of a prempted pardon for a son Hunter Biden
31:21
Speaker 8: as well, the combined pardon for what was identified in
31:24
Speaker 8: the past, but also preemptively for any ten year period
31:27
Speaker 8: or so of what he might be charged for. So
31:30
Speaker 8: it's accepted that president's power includes the prempted power, and
31:33
Speaker 8: that really is a terrible conflict for those who might
31:37
Speaker 8: be extended it, because if you think you've done no wrong,
31:39
Speaker 8: Let's say you're a Jack Smith, do you know that
31:42
Speaker 8: if you take this get out of jail free card
31:44
Speaker 8: it helps your family you don't have to go through
31:46
Speaker 8: public disgrace of a trial and the costs and the
31:49
Speaker 8: pressures of it. But on the other hand, do you
31:51
Speaker 8: look a little guilty? And so there's been a lot
31:54
Speaker 8: of discussions, I'm sure in the inner circles of the
31:56
Speaker 8: White House and amongst these individuals who've been targeted by
31:59
Speaker 8: present than Trump about what should happen. So it's not
32:03
Speaker 8: an easy trade off, and I think it's given a choice,
32:05
Speaker 8: some of those on President Trump's list would say yes,
32:09
Speaker 8: I'll take the pardon just in case it's just important
32:11
Speaker 8: for my family, and others would say never, because I'm
32:15
Speaker 8: never going to look as if I did anything wrong.
32:17
Speaker 8: And it maybe that one option is for President Biden
32:22
Speaker 8: just to extend the pardon to those who earlier had
32:24
Speaker 8: said they'll take it and they don't want to run
32:26
Speaker 8: the risk of all the money, all the bad publicity.
32:29
Speaker 3: Newly sworn in Senator Adam Schiff of California, a Democrat
32:35
Speaker 3: that Trump has promised to go after, has said that
32:39
Speaker 3: he doesn't think preemptive blanket pardons on the way out
32:42
Speaker 3: of an administration are a good idea, but he also
32:46
Speaker 3: said many people, including staff and the Biden administration, might
32:52
Speaker 3: have something to worry about if former federal prosecutor Cash
32:56
Speaker 3: Patel is confirmed to lead the FBI.
32:59
Speaker 8: I think if.
33:00
Speaker 5: Patel is may director of the FBI, then all bets
33:03
Speaker 5: are off.
33:03
Speaker 7: I mean, this is someone who will do whatever dirty
33:06
Speaker 7: work the president wants him to do.
33:08
Speaker 3: But people like Schiff and former Congresswoman Liz Cheney would
33:12
Speaker 3: be protected by the speech and Debate clause though, and
33:15
Speaker 3: prosecutors like Special Counsel Jack Smith and New York DA
33:20
Speaker 3: Alvin Bragg would be protected because they're acting under the
33:24
Speaker 3: color of law.
33:25
Speaker 8: Yeah, I mean, most of these so called Trump prosecutions
33:28
Speaker 8: of his opponents are fanciful because you know, it wouldn't
33:31
Speaker 8: be able to indict them even for grand jury. And
33:34
Speaker 8: as you mentioned, there's a variety of immunities. Nancy Pelosi
33:39
Speaker 8: and attom Shift obviously have the community from being members
33:43
Speaker 8: of Congress in their investigations, and the executive officials that
33:47
Speaker 8: prosecutors have absolute immunity for the prosecutorial actions, such as
33:51
Speaker 8: Jack Smith to some except Merrick Ireland as well. So
33:54
Speaker 8: it's really unlikely that President Trump would have any kind
33:58
Speaker 8: of success in prosecuting most of those he's already identified
34:01
Speaker 8: as targets. But you know, you never know, maybe there's
34:04
Speaker 8: going to be a state prosecutor who's willing to do
34:08
Speaker 8: the President's bidding who isn't found by the same kind
34:11
Speaker 8: of immunity doctrines or maybe it's just a matter of
34:15
Speaker 8: public humiliation that he's trying to wreck, but I think
34:18
Speaker 8: the chances of success on this political basis are few
34:21
Speaker 8: and far between.
34:22
Speaker 3: You mentioned the pardon of Hunter Biden, and even when
34:26
Speaker 3: the White House Press Secretary was announcing this historic clemency package,
34:30
Speaker 3: there were questions still about the president's decision to pardon
34:34
Speaker 3: his son Hunter. And it seems like you know, in
34:37
Speaker 3: the history books when they talk about the Biden administration
34:40
Speaker 3: and pardons, the first thing that we'll be mentioned is
34:43
Speaker 3: that he pardoned his son when he promised.
34:46
Speaker 8: He wouldn't exactly, And there's two things about it. I mean,
34:48
Speaker 8: first of all, he said he wouldn't pardon his son
34:51
Speaker 8: and then did it, which again looks bad in terms
34:53
Speaker 8: of history. But the second thing is he seems to
34:56
Speaker 8: be blaming his own Justice Department for politicized prosecution of Hunter.
35:02
Speaker 8: That doesn't go down well with me at all in
35:04
Speaker 8: the sense that he's sort of abandoning those that he,
35:07
Speaker 8: in fact has empowered to make those decisions. So I
35:10
Speaker 8: think for that reason as well, pardon of Hunter Biden
35:13
Speaker 8: is going to sit uneasily with many people. Again, the
35:16
Speaker 8: change of mind and the fact that he blamed his
35:18
Speaker 8: own Justice Department for politicized prosecution.
35:21
Speaker 3: So now let's turn to Trump for a minute, because
35:23
Speaker 3: he said in an interview published with Time magazine, he
35:27
Speaker 3: said that within minutes or hours of taking office, he
35:30
Speaker 3: would pardon people convicted of crimes related to the January
35:35
Speaker 3: sixth attack. And Trump has been saying versions of that
35:38
Speaker 3: for years. What kind of a message would that send?
35:42
Speaker 8: Well, he has said that consistently, but he's been inconsistent
35:45
Speaker 8: with respect to whether to offer pardon to all January
35:50
Speaker 8: sixth insurgents, if you will, protesters, or just those who
35:54
Speaker 8: are nonviolent. You know, I can understand the pardon for
35:58
Speaker 8: the non violent trespassers, but I think with those who
36:01
Speaker 8: actually attacked officers, you know, I think that it's been
36:04
Speaker 8: a terrible signal that you can attack a police officer
36:08
Speaker 8: and the President's going to get out of jail card free.
36:11
Speaker 3: The early December that Biden administration received nearly twelve thousand
36:14
Speaker 3: petitions for clemency and more than fourteen hundred petitions for pardons.
36:18
Speaker 3: So do you think that Biden will hand out more
36:20
Speaker 3: pardons or grants of clemency before he leaves office.
36:24
Speaker 8: I'm convinced we will, but it's not going to be
36:26
Speaker 8: this wholesale nature as the most recent list of clemency petitions.
36:30
Speaker 8: In particular, I think there'll be more targeted individuals, case
36:34
Speaker 8: by a case basis, those whose pardon applications may have
36:38
Speaker 8: been pending for several years now, so we'll see more.
36:42
Speaker 8: And I'm still guessing that we'll see commutations for those
36:47
Speaker 8: on death row.
36:48
Speaker 3: But time will tell the time of less than a month.
36:51
Speaker 3: Thanks so much. How that's Professor Harold Krent of a
36:54
Speaker 3: Chicago Kent College of Law. And that's it for this
36:57
Speaker 3: edition of the Bloomberg Law Podcast. Remember you've ben own.
37:00
Speaker 3: Always get the latest legal news by subscribing and listening
37:02
Speaker 3: to the show on Apple Podcasts, Spotify, and at Bloomberg
37:06
Speaker 3: dot com, slash podcast, Slash Law. I'm June Grosso, and
37:10
Speaker 3: this is Bloomberg