Latest / Bloomberg Law / New Attorney General's First Moves & Jan 6th Rioters Sue for Damages

Transcript

New Attorney General's First Moves & Jan 6th Rioters Sue for Damages · Bloomberg Law

• 0:02
  Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.
• 0:10
  Speaker 2: Here's how Acting Attorney General Todd Blanche, newly minted as
• 0:15
  Speaker 2: the nation's top law enforcement officer, explained the purging of
• 0:19
  Speaker 2: attorneys at the Justice Department.
• 0:22
  Speaker 3: You had prosecutors that were absolutely not doing the right thing, okay,
• 0:25
  Speaker 3: and so none of those prosecutors. I hope everybody agrees
• 0:29
  Speaker 3: that they shouldn't work here if you're not doing the
• 0:31
  Speaker 3: right thing.
• 0:31
  Speaker 2: To Blanche, prosecutors not doing the right thing means they
• 0:35
  Speaker 2: worked on the criminal investigations into President Trump. He failed
• 0:40
  Speaker 2: to mention that most prosecutors work on the cases they're
• 0:44
  Speaker 2: assigned to. I've been talking to Dave Ahrenberg, former Palm
• 0:47
  Speaker 2: Beach County State Attorney. Dave. I've seen different numbers, but
• 0:51
  Speaker 2: thousands of prosecutors and FBI agents have been fired or
• 0:56
  Speaker 2: resigned since Trump's second term began. You have inexperienced attorneys
• 1:02
  Speaker 2: appearing in federal court, or attorneys who have experience in
• 1:07
  Speaker 2: other areas. They have, for example, they have military lawyers
• 1:10
  Speaker 2: going in and doing immigration cases.
• 1:13
  Speaker 4: And it suffers because first you have judges who no
• 1:16
  Speaker 4: longer give so much deference to the Department of Justice.
• 1:18
  Speaker 4: That's a problem because these are really important cases. Federal
• 1:21
  Speaker 4: prosecutors bring important cases. These are cases involving national security terrorism,
• 1:26
  Speaker 4: I mean, and if they start to lose credibility in
• 1:28
  Speaker 4: the eyes of the bench, then Katie bar the door.
• 1:32
  Speaker 4: So you have that, and then you have just the
• 1:33
  Speaker 4: fact that when these young, inexperienced prosecutors who have now
• 1:37
  Speaker 4: taken over from much more experienced prosecutors, are at trial,
• 1:41
  Speaker 4: they are facing on the other side some of the
• 1:43
  Speaker 4: most experienced criminal defense lawyers, because that's who practices in
• 1:46
  Speaker 4: federal court, and that's going to jeopardize your conviction rates,
• 1:50
  Speaker 4: and you just do not want guilty people to go free.
• 1:53
  Speaker 2: The Justice Department is backtracking on assurances it made to
• 1:56
  Speaker 2: career attorneys they'd remain insulated from White House politics, and
• 2:02
  Speaker 2: they're transferring white collar prosecutors to this new division.
• 2:06
  Speaker 4: What's going on is that this is another policy that
• 2:10
  Speaker 4: comes out of the White House where they want to
• 2:11
  Speaker 4: focus on the government fraud and blue states. This is
• 2:15
  Speaker 4: the Minnesota public assistance scandal that is a real issue.
• 2:19
  Speaker 4: By the way, there is real fraud there, and they
• 2:22
  Speaker 4: want to lean into that by sending in more resources
• 2:27
  Speaker 4: to root out the fraud and prosecute it. Okay, but
• 2:29
  Speaker 4: they're doing so now by shifting people over from other
• 2:33
  Speaker 4: parts of the DOJ. These are some of the most
• 2:36
  Speaker 4: experienced white collar fraud prosecutors who end up getting lots
• 2:40
  Speaker 4: of money back for the government. These are people who
• 2:43
  Speaker 4: go after these wealthy individuals who believe that they're above
• 2:46
  Speaker 4: the law and they get a huge recovery. And instead
• 2:49
  Speaker 4: of going after those elites who managed not to pay
• 2:53
  Speaker 4: taxes or to find ways to go around the law,
• 2:56
  Speaker 4: now they're going to focus on the poorests who are
• 3:00
  Speaker 4: making advantage of government assistance. But you should be able
• 3:03
  Speaker 4: to do both at the same time. It's a shame
• 3:05
  Speaker 4: if you have to shift people over from divisions that
• 3:08
  Speaker 4: are working to help promote a political agenda, which is
• 3:13
  Speaker 4: to go and double down on the public assistance fraud
• 3:16
  Speaker 4: that it's just become such a big issue on the right.
• 3:19
  Speaker 2: So now, as far as the replacement for Bondie Lee Zelden,
• 3:24
  Speaker 2: the head of the EPA, has been mentioned, and you
• 3:28
  Speaker 2: talked about this before. It's the question of who can
• 3:31
  Speaker 2: Trump get through the Senate. You had Matt Gates that
• 3:35
  Speaker 2: was a no go, right, Zelden has already been approved
• 3:39
  Speaker 2: by the Senate for the EPA position. Do you think
• 3:42
  Speaker 2: Trump would be satisfied with Zelden. He's done what he
• 3:45
  Speaker 2: wants at the EPA.
• 3:47
  Speaker 4: Yeah, But being Attorney General is different. At the EPA,
• 3:50
  Speaker 4: you don't have grand juries, you don't have jurors, you
• 3:53
  Speaker 4: don't have judges. You just make policy and then you
• 3:57
  Speaker 4: hope that they'll win in court. But those core ket
• 4:00
  Speaker 4: he says, take years. So right now these all of
• 4:01
  Speaker 4: them looks fine. He's doing Trump's bidding at the EPA.
• 4:05
  Speaker 4: I don't think that Zelden would satisfy Trump. I think
• 4:08
  Speaker 4: Trump wants someone who will burn the house down. He
• 4:11
  Speaker 4: wants to Matt Gates. Matt Gates won't get confirmed. He
• 4:14
  Speaker 4: wants Sidney Powell. Sidney Powell won't get confirmed. He wants
• 4:17
  Speaker 4: Rudy Giuliani. Rudy Jili won't get confirmed. So I think
• 4:19
  Speaker 4: then he's got to find someone who he thinks will
• 4:22
  Speaker 4: be loyal to him over everything else and can get confirmed.
• 4:26
  Speaker 4: Maybe Alena Habba watched for her. Todd Blanch seriously wants
• 4:30
  Speaker 4: this job, and he is making a big play for
• 4:33
  Speaker 4: the job. But Trump right now seems unconvinced. I think
• 4:36
  Speaker 4: Trump still thinks that Todd Blanche is too much on
• 4:39
  Speaker 4: Team Normal and he wants someone in the Roy Cohne mode.
• 4:43
  Speaker 2: So Todd Blanche has one hundred and twenty days before
• 4:46
  Speaker 2: he has to either exit that office or be nominated.
• 4:50
  Speaker 1: He's actually Twitter in ten days days.
• 4:52
  Speaker 2: Okay, I got it.
• 4:53
  Speaker 1: I just trans numbers.
• 4:54
  Speaker 2: So he has time to maybe try to prove himself.
• 4:57
  Speaker 2: So do you think he would get through a Senate
• 4:59
  Speaker 2: confirmation Todd Lynch.
• 5:01
  Speaker 4: I think would very likely get through a Senate confirmation,
• 5:04
  Speaker 4: But they're going to make sure if he's nominated or anyone,
• 5:07
  Speaker 4: it's going to be before November, because the Democrats could win
• 5:10
  Speaker 4: control of the Senate and then it's a game changer.
• 5:13
  Speaker 1: So watch for that.
• 5:14
  Speaker 2: I hadn't thought about that. Good point. Now let's turn
• 5:17
  Speaker 2: to the world of Trump's private litigation. Trump is asking
• 5:22
  Speaker 2: the New York state's highest court, which is the Court
• 5:25
  Speaker 2: of Appeals, unlike most states, which is the Supreme Court.
• 5:28
  Speaker 1: So we have it that the lowest court in New York, yes.
• 5:31
  Speaker 2: The Supreme Court, the Appellate Division, and then the Court
• 5:33
  Speaker 2: of Appeals. So he's asking the Court of Appeals to
• 5:36
  Speaker 2: vacate the judge's finding in that Letitia James case where
• 5:40
  Speaker 2: he was liable for inflating the value of his real estate.
• 5:44
  Speaker 2: And they've already gotten the Appellate Division to strike down
• 5:48
  Speaker 2: the four hundred and sixty four million dollar fraud penalty,
• 5:52
  Speaker 2: finding that it was unconstitutionally excessive, although it upheld the
• 5:56
  Speaker 2: finding that he broke the law by inflating the value
• 5:59
  Speaker 2: of assets like Marl Lago. But enter Michael Cohen, his
• 6:05
  Speaker 2: former fixer again.
• 6:07
  Speaker 4: Well, Michael Cohen was an important witness in the Sister
• 6:11
  Speaker 4: James case against Donald Trump, and now Michael Cohen is
• 6:14
  Speaker 4: saying that his testimony was coerced. So he's being accused
• 6:19
  Speaker 4: politically of trying to get back into Trump world for
• 6:23
  Speaker 4: whatever reason. And so that's a controverse and he's dealing
• 6:26
  Speaker 4: with that. But aside from that, from a legal standpoint,
• 6:30
  Speaker 4: he wasn't the reason in my mind that the judge,
• 6:33
  Speaker 4: Judge and Goron made the decision he did, because the
• 6:37
  Speaker 4: judge made it clear that there was amount of evidence
• 6:39
  Speaker 4: and he based it on a lot of the paperwork.
• 6:41
  Speaker 4: In fact, he gave some rejudgment, meaning a ruled for
• 6:45
  Speaker 4: the state early on in the case based on the
• 6:48
  Speaker 4: papers not based on Michael Cohen. So even if there
• 6:51
  Speaker 4: was something untowared by the prospers, and we don't know
• 6:55
  Speaker 4: if that's true, we haven't seen any evidence that other
• 6:57
  Speaker 4: than Michael Cohen now saying it, you could say it's
• 7:00
  Speaker 4: harmless error, that it's not what led to the verdict,
• 7:04
  Speaker 4: and thus the court would not overturn it finding of liability.
• 7:08
  Speaker 2: Right, And I remember when Michael Cohen was testifying, the
• 7:13
  Speaker 2: discussion was, well, can he be believed because he's flip
• 7:16
  Speaker 2: flopped and now he's flip flopping again.
• 7:19
  Speaker 4: In this sub stack, you'd have to show corroboration. You
• 7:22
  Speaker 4: have to show the internal records, and that's where the
• 7:26
  Speaker 4: judges could say, the sister James, produce all the internal
• 7:29
  Speaker 4: communications between you and Michael Cohen, and that would show
• 7:35
  Speaker 4: whether there was undue pressure there.
• 7:38
  Speaker 1: I don't know.
• 7:39
  Speaker 4: I don't know what to think about it, but I
• 7:41
  Speaker 4: do know that Trump has already won because he was
• 7:45
  Speaker 4: able to eliminate the entire massive penalty that was imposed.
• 7:50
  Speaker 4: Now the findings the liability is still on the books,
• 7:54
  Speaker 4: So this is just essentially picking the bones. This is
• 7:57
  Speaker 4: just like Trump has already won and now he wants
• 8:00
  Speaker 4: everything else to go his way, just overturn the entire
• 8:03
  Speaker 4: ruling in the case.
• 8:04
  Speaker 2: You know, this shows you about money and the justice system,
• 8:07
  Speaker 2: because he has enough money to keep going back. You know,
• 8:11
  Speaker 2: another bite at the apple, another bite at the apple,
• 8:14
  Speaker 2: and we'll see what happens.
• 8:15
  Speaker 4: And he's got really good lawyers to do it. He
• 8:17
  Speaker 4: won at the Intermediate Court Appeals because it overturned the
• 8:20
  Speaker 4: massive judgment, and now he wants everything overturned.
• 8:24
  Speaker 1: I don't know. I still think it's an uphole client.
• 8:26
  Speaker 2: He wants it overturned because the New York Attorney General's
• 8:29
  Speaker 2: Office wants the New York Court of Appeals to reinstate
• 8:33
  Speaker 2: that nearly half billion dollar fraud verdict. So a win
• 8:37
  Speaker 2: here by the Court of Appeals would be like a
• 8:38
  Speaker 2: knockout punch. I guess, Dave. Let's turn from Trump and
• 8:42
  Speaker 2: the Justice Department for a minute and talk about the
• 8:45
  Speaker 2: Supreme Court. This actually surprised me. One Supreme Court justice
• 8:51
  Speaker 2: criticizing another. So, during a talk at the University of
• 8:55
  Speaker 2: Kansas Law School, Liberal Justice Sonya Sotomayor criticized Conserva Justice
• 9:00
  Speaker 2: Brett Kavanaugh, and she didn't name him, but it was
• 9:03
  Speaker 2: crystal clear who she was talking about quote. I had
• 9:06
  Speaker 2: a colleague in that case who wrote, you know, these
• 9:09
  Speaker 2: are only temporary stops, talking about the stops that Ice
• 9:13
  Speaker 2: was doing to check immigration status, and Justice Brett Kavanaugh
• 9:18
  Speaker 2: had written there, it's typically brief and they'll promptly go free,
• 9:22
  Speaker 2: and they've been called now Kavanaugh stops, and Justice Sodemayor said, quote,
• 9:26
  Speaker 2: this is from a man whose parents were professionals and
• 9:30
  Speaker 2: probably doesn't really know any person who works by the hour.
• 9:34
  Speaker 2: I mean, Supreme Court justices critique each other in their opinions,
• 9:38
  Speaker 2: but you don't often hear a justice. In fact, I
• 9:41
  Speaker 2: can't think of any other time where a justice has
• 9:44
  Speaker 2: criticized another justice so openly and so personally.
• 9:50
  Speaker 4: No, but we use the word unprecedented all the time.
• 9:53
  Speaker 4: Now it's our day and age where it is about
• 9:57
  Speaker 4: speaking out and taking shots at people and getting like
• 10:00
  Speaker 4: and clicks and attention. And I think that takes its
• 10:04
  Speaker 4: lead from the person at the top, Donald Trump. I mean,
• 10:06
  Speaker 4: that's his style, and so you're seeing people from all
• 10:08
  Speaker 4: walks of life. Is even Supreme Court justices emulate that,
• 10:12
  Speaker 4: leaving no holds barred, and so I think that it
• 10:15
  Speaker 4: is unusual for a different time, But today, should be
• 10:18
  Speaker 4: really be that surprised.
• 10:20
  Speaker 2: I mean, I wonder what happens at the next conference
• 10:23
  Speaker 2: the justices have, whether there is tension in the air.
• 10:26
  Speaker 5: Well.
• 10:27
  Speaker 4: This is something very personal to Justice Soda my Arm.
• 10:29
  Speaker 4: I mean, she's the first Hispanic on the Court, and
• 10:33
  Speaker 4: she sees that Trump's immigration policies have targeted Hispanics, and
• 10:38
  Speaker 4: in this one in particular, which allows Ice to go
• 10:42
  Speaker 4: and question and detain people solely because of race, because
• 10:46
  Speaker 4: of the language we're speaking, and she thought that this
• 10:50
  Speaker 4: would be unconstitutional to do so because they don't have problem,
• 10:52
  Speaker 4: cause they don't have any evidence that someone is undocumented
• 10:56
  Speaker 4: other than the language are speaking where they're hanging out
• 10:59
  Speaker 4: and their race. And Justice Kavanaugh had a concurring opinion
• 11:03
  Speaker 4: that offended not Justice Sodo my or, but others, especially
• 11:06
  Speaker 4: progressives who look tone deaf, where Justice Kavanaugh was saying, well,
• 11:10
  Speaker 4: you know, these are just temporary stops, and all you
• 11:13
  Speaker 4: have to do is just prove that they're not undocumented
• 11:15
  Speaker 4: and they're released, when in reality, it's a lot more
• 11:18
  Speaker 4: than that, and that's why people on the left call
• 11:21
  Speaker 4: them Kavanaugh stops to this day. So Justice Sonimar is
• 11:25
  Speaker 4: reflecting the sentiments the outrage on the left.
• 11:28
  Speaker 2: In twenty twenty four, she and conservative Justice Amy Cony
• 11:32
  Speaker 2: Barrett would appear together. They made several joint appearances to
• 11:36
  Speaker 2: try to show, you know, collegiality and civil disagreement and
• 11:40
  Speaker 2: to promote public trust in the court.
• 11:43
  Speaker 4: Amy Coney Barrett's key the reason why you don't want
• 11:45
  Speaker 4: to mess with Amy Conebarrett because it's her court. This
• 11:48
  Speaker 4: is a Barrett justice Roberts Court, because they're the two
• 11:51
  Speaker 4: swing justices. See, Kavanaugh doesn't get that grace because he's
• 11:56
  Speaker 4: not a swing justice. He is seen as in the
• 11:58
  Speaker 4: can for Trump. So soy Mars is essentially saying it,
• 12:02
  Speaker 4: I'll take him on. I would bet that if it
• 12:04
  Speaker 4: was Amy Cony Barrett who had that concurrence, she wouldn't
• 12:06
  Speaker 4: be as quick to lash out at her.
• 12:09
  Speaker 2: You make an interesting point, Dave, Thanks so much for
• 12:12
  Speaker 2: joining me today. That's day Arenberg, former Palm Beach County
• 12:16
  Speaker 2: State Attorney, coming up next on The Bloomberg Law Show.
• 12:20
  Speaker 2: Some members of the mob who stormed the capitol on
• 12:23
  Speaker 2: January sixth are suing the government for millions of dollars,
• 12:28
  Speaker 2: claiming police officers who defended the capital that day were
• 12:32
  Speaker 2: using excessive force. Remember you can always get the latest
• 12:35
  Speaker 2: legal news by listening to our Bloomberg Law podcast. You
• 12:39
  Speaker 2: can find them on Apple Podcasts, Spotify, and at Bloomberg
• 12:42
  Speaker 2: dot com slash podcast Slash Law. I'm June Grosso and
• 12:46
  Speaker 2: you're listening to Bloomberg. Here's how Acting Attorney General Todd Blanche,
• 12:54
  Speaker 2: newly minted as the nation's top law enforcement officer, explained
• 12:59
  Speaker 2: the per of attorneys at the Justice Department.
• 13:03
  Speaker 3: You had prosecutors that were absolutely not doing the right thing, okay,
• 13:06
  Speaker 3: and so none of those prosecutors, I hope everybody agrees
• 13:09
  Speaker 3: that they shouldn't work here if you're not doing the
• 13:12
  Speaker 3: right thing.
• 13:12
  Speaker 2: To Blanche, prosecutors not doing the right thing means they
• 13:16
  Speaker 2: worked on the criminal investigations into President Trump. He failed
• 13:21
  Speaker 2: to mention that most prosecutors work on the cases they're
• 13:25
  Speaker 2: assigned to. I've been talking to Dave Ehrenberg, former Palm
• 13:28
  Speaker 2: Beach County State Attorney.
• 13:30
  Speaker 4: Dave.
• 13:30
  Speaker 2: I've seen different numbers, but thousands of prosecutors and FBI
• 13:35
  Speaker 2: agents have been fired or resigned since Trump's second term began.
• 13:40
  Speaker 2: So you have inexperienced attorneys appearing in federal court or
• 13:45
  Speaker 2: attorneys who have experience in other areas. They have, for example,
• 13:50
  Speaker 2: they have military lawyers going in and doing immigration cases.
• 13:54
  Speaker 4: And it suffers because first you have judges who no
• 13:57
  Speaker 4: longer give so much deference to the Department of Justice.
• 13:59
  Speaker 4: That's a problem because these are really important cases. Federal
• 14:02
  Speaker 4: prosecutors bring important cases. These are cases involving national security, terrorism,
• 14:07
  Speaker 4: and if they start to lose credibility in the eyes
• 14:10
  Speaker 4: of the bench, then Katie bar the door. So you
• 14:13
  Speaker 4: have that, and then you have just the fact that
• 14:15
  Speaker 4: when these young, inexperienced prosecutors who have now taken over
• 14:19
  Speaker 4: from much more experienced prosecutors are at trial, they are
• 14:22
  Speaker 4: facing on the other side some of the most experienced
• 14:24
  Speaker 4: criminal defense lawyers, because that's who practices in federal court,
• 14:28
  Speaker 4: and that's going to jeopardize your conviction rates, and you
• 14:31
  Speaker 4: just do not want guilty people to go free.
• 14:33
  Speaker 2: The Justice Department is backtracking on assurances it made to
• 14:37
  Speaker 2: career attorneys they'd remain insulated from White House politics, and
• 14:43
  Speaker 2: they're transferring white collar prosecutors to this new division.
• 14:47
  Speaker 4: What's going on is that this is another policy that
• 14:50
  Speaker 4: comes out of the White House where they want to
• 14:52
  Speaker 4: focus on the government fraud and blue states. This is
• 14:55
  Speaker 4: the Minnesota public assistance scandal that is a real issue.
• 15:00
  Speaker 4: By the way, there is real fraud there and they
• 15:03
  Speaker 4: want to lean into that by sending in more resources
• 15:07
  Speaker 4: to root out the fraud and prosecute it. Okay, but
• 15:10
  Speaker 4: they're doing so now by shifting people over from other
• 15:14
  Speaker 4: parts of the DOJ. These are some of the most
• 15:17
  Speaker 4: experienced white collar fraud prosecutors who end up getting lots
• 15:21
  Speaker 4: of money back for the government. These are people who
• 15:23
  Speaker 4: go after these wealthy individuals who believe that they're above
• 15:27
  Speaker 4: the law and they get a huge recovery. And instead
• 15:30
  Speaker 4: of going after those elites who managed not to pay
• 15:34
  Speaker 4: taxes or to find ways to go around the law,
• 15:37
  Speaker 4: now they're going to focus on the poorests who are
• 15:40
  Speaker 4: taking advantage of government assistance. But you should be able
• 15:44
  Speaker 4: to do both at the same time. It's a shame
• 15:45
  Speaker 4: if you have to shift people over from divisions that
• 15:49
  Speaker 4: are working to help promote a political agenda, which is
• 15:54
  Speaker 4: to go and double down on the public assistance fraud
• 15:57
  Speaker 4: that it's just become such a big issue on the right.
• 16:00
  Speaker 2: So now, as far as the replacement for Bondie Lee Zelden,
• 16:05
  Speaker 2: the head of the EPA has been mentioned, and you
• 16:09
  Speaker 2: talked about this before. It's the question of who can
• 16:12
  Speaker 2: Trump get through the Senate. You had Matt Gates, that
• 16:16
  Speaker 2: was a no go, right, Zelden has already been approved
• 16:20
  Speaker 2: by the Senate for the EPA position. Do you think
• 16:23
  Speaker 2: Trump would be satisfied with Zelden. He's done what he
• 16:26
  Speaker 2: wants at the EPA.
• 16:27
  Speaker 4: Yeah, But being Turney general is different.
• 16:30
  Speaker 1: At the EPA.
• 16:31
  Speaker 4: You don't have grand juries, you don't have jurors, you
• 16:34
  Speaker 4: don't have judges. You just make policy and then you
• 16:38
  Speaker 4: hope that the I'll win in court. But those court
• 16:40
  Speaker 4: cases take years. So right now these Aldam looks fine.
• 16:43
  Speaker 4: He's doing Trump's bidding at the EPA. I don't think
• 16:46
  Speaker 4: that Zelden would satisfy Trump. I think Trump wants someone
• 16:50
  Speaker 4: who will burn the house down. He wants to Matt Gates.
• 16:53
  Speaker 4: Matt Gates won't get confirmed. He wants Sidney Powell. Sidney
• 16:56
  Speaker 4: Powell won't get confirmed. He wants Ruby Giuliani. Rudy juli
• 16:59
  Speaker 4: won't get conf So I think then he's got to
• 17:01
  Speaker 4: find someone who thinks will be loyal to him over
• 17:05
  Speaker 4: everything else and can get confirmed. Maybe Alena Habit watch
• 17:09
  Speaker 4: for her. Todd Blanch seriously wants this job, and he
• 17:13
  Speaker 4: is making a big play for the job, but Trump
• 17:15
  Speaker 4: right now seems unconvinced. I think Trump still thinks that
• 17:18
  Speaker 4: Todd Blanche is too much on Team Normal and he
• 17:21
  Speaker 4: wants someone in the Roy Kohane mode.
• 17:24
  Speaker 2: So Todd Blanch has one hundred and twenty days before
• 17:27
  Speaker 2: he has to either exit that office or be nominated.
• 17:30
  Speaker 1: To He's actually turn ten days days.
• 17:33
  Speaker 2: Okay, I got it. I just numbers, so he has
• 17:36
  Speaker 2: time to maybe try to prove himself. So do you
• 17:38
  Speaker 2: think he would get through a Senate confirmation Todd Blanch.
• 17:42
  Speaker 4: I think would very likely get through a Senate confirmation.
• 17:45
  Speaker 4: But they're going to make sure if he's nominated or anyone,
• 17:48
  Speaker 4: it's going to before November because the Democrats could win
• 17:51
  Speaker 4: control of the Senate and then it's a game changer.
• 17:54
  Speaker 1: So watch for that.
• 17:55
  Speaker 2: I hadn't thought about that. Good point. Now let's turn
• 17:58
  Speaker 2: to the world of Trump's litigation. Trump is asking the
• 18:03
  Speaker 2: New York state's highest court, which is the Court of Appeals,
• 18:06
  Speaker 2: unlike most states, which is the Supreme Court.
• 18:09
  Speaker 1: So we have it that lowest court in New York.
• 18:11
  Speaker 2: Yes, the Supreme Court, the Appellate Division, and then the
• 18:14
  Speaker 2: Court of Appeals. So he's asking the Court of Appeals
• 18:17
  Speaker 2: to vacate the judge's finding in that Letitia James case
• 18:20
  Speaker 2: where he was liable for inflating the value of his
• 18:24
  Speaker 2: real estate. And they've already gotten the Appellate Division to
• 18:28
  Speaker 2: strike down the four hundred and sixty four million dollar
• 18:31
  Speaker 2: fraud penalty, finding that it was unconstitutionally excessive, although it
• 18:36
  Speaker 2: upheld the finding that he broke the law by inflating
• 18:40
  Speaker 2: the value of assets like Mara a Lago. But enter
• 18:44
  Speaker 2: Michael Cohen, his former fixer.
• 18:47
  Speaker 4: Again, well, Michael Cohen was an important witness in Letitia
• 18:52
  Speaker 4: James case against Donald Trump, and now Michael Cohen is
• 18:55
  Speaker 4: saying that his testimony was coerced. So he he's being
• 19:00
  Speaker 4: accused politically of trying to get back into Trump world
• 19:03
  Speaker 4: for whatever reason. And so that's a controversy and he's
• 19:07
  Speaker 4: dealing with that. But aside from that, from a legal standpoint,
• 19:10
  Speaker 4: he wasn't the reason in my mind that the judge,
• 19:14
  Speaker 4: Judge and Goron made the decision he did. Because the
• 19:18
  Speaker 4: judge made it clear that there was amount of evidence
• 19:20
  Speaker 4: and he based it on a lot of the paperwork.
• 19:22
  Speaker 4: In fact, he gave some rejudgment, meaning a ruled for
• 19:26
  Speaker 4: the state early on in the case, based on the papers,
• 19:29
  Speaker 4: not based on Michael Cohen. So even if there was
• 19:33
  Speaker 4: something untowared by the prospers, and we don't know if
• 19:36
  Speaker 4: that's true, we haven't seen any evidence that other than
• 19:38
  Speaker 4: Michael Cohen now saying it, you could say it's harmless error,
• 19:42
  Speaker 4: that it's not what led to the verdict, and thus
• 19:46
  Speaker 4: the court would not overturn it finding a liability right.
• 19:49
  Speaker 2: And I remember when Michael Cohen was testifying, the discussion was,
• 19:54
  Speaker 2: well can he be believed because he's flip flopped and
• 19:58
  Speaker 2: now he's flip flopp again.
• 20:00
  Speaker 1: In this sub stack, you'd have to show corroboration.
• 20:03
  Speaker 4: You have to show the internal records, and that's where
• 20:06
  Speaker 4: the judges could say, the sister James, produce all the
• 20:10
  Speaker 4: internal communications between you and Michael Cohen, and that would
• 20:15
  Speaker 4: show whether there was undue pressure there.
• 20:19
  Speaker 1: I don't know.
• 20:19
  Speaker 4: I don't know what to think about it, but I
• 20:22
  Speaker 4: do know that Trump has already won because he was
• 20:26
  Speaker 4: able to eliminate the entire massive penalty that was imposed.
• 20:31
  Speaker 4: Now the findings. The liability is still on the books,
• 20:35
  Speaker 4: so this is just essentially picking the bones. This is
• 20:38
  Speaker 4: just like Trump's already won and now he wants everything
• 20:41
  Speaker 4: else to go his way. Just overturn the entire ruling
• 20:44
  Speaker 4: in the case.
• 20:45
  Speaker 2: You know, this shows you about money and the justice system,
• 20:48
  Speaker 2: because he has enough money to keep going back. You know,
• 20:52
  Speaker 2: another bite at the apple, another bite at the apple,
• 20:54
  Speaker 2: and we'll see what happens.
• 20:56
  Speaker 4: And he's got really good lawyers to do it. He
• 20:58
  Speaker 4: won at the Intermediate Court of Appeals because it overturned
• 21:01
  Speaker 4: the massive judgment, and now he wants everything overturned.
• 21:05
  Speaker 1: I don't know. I still think it's an uphole client.
• 21:07
  Speaker 2: He wants it overturned because the New York Attorney General's
• 21:10
  Speaker 2: Office wants the New York Court of Appeals to reinstate
• 21:14
  Speaker 2: that nearly half billion dollar fraud verdict. So a win
• 21:17
  Speaker 2: here by the Court of Appeals would be like a
• 21:19
  Speaker 2: knockout punch. I guess, Dave, let's turn from Trump and
• 21:23
  Speaker 2: the Justice Department for a minute and talk about the
• 21:26
  Speaker 2: Supreme Court. This actually surprised me. One Supreme Court justice
• 21:32
  Speaker 2: criticizing another. So, during a talk at the University of Kansas,
• 21:36
  Speaker 2: law school, Liberal Justice Sonya Sotomayor criticized conservative Justice Brett Cavanaugh,
• 21:42
  Speaker 2: and she didn't name him, but it was crystal clear
• 21:45
  Speaker 2: who she was talking about. Quote. I had a colleague
• 21:48
  Speaker 2: in that case who wrote, you know, these are only
• 21:50
  Speaker 2: temporary stops, talking about the stops that Ice was doing
• 21:55
  Speaker 2: to check immigration status, and Justice Brett Kavanaugh had written,
• 22:00
  Speaker 2: there's typically brief and they'll promptly go free, and they've
• 22:03
  Speaker 2: been called now Kavanaugh stops, and Justice Sodomayor said, quote,
• 22:07
  Speaker 2: this is from a man whose parents were professionals and
• 22:10
  Speaker 2: probably doesn't really know any person who works by the hour.
• 22:15
  Speaker 2: I mean, Supreme Court justice is critique each other in
• 22:18
  Speaker 2: their opinions, but you don't often hear a justice. In fact,
• 22:22
  Speaker 2: I can't think of any other time where a justice
• 22:25
  Speaker 2: has criticized another justice so openly and so personally.
• 22:31
  Speaker 4: No, but we use the word unprecedented all the time.
• 22:34
  Speaker 4: Now it's our day and age where it is about
• 22:38
  Speaker 4: speaking out and taking shots at people and getting likes
• 22:41
  Speaker 4: and clicks and attention. And I think that takes its
• 22:44
  Speaker 4: lead from the person at the top, Donald Trump. I
• 22:47
  Speaker 4: mean that's his style, and so you're seeing people from
• 22:49
  Speaker 4: all walks of life. Is even Supreme Court justices emulate that,
• 22:53
  Speaker 4: leaving no holds barred, And so I think that it
• 22:56
  Speaker 4: is unusual for a different time, but today should be
• 22:59
  Speaker 4: really that surprised.
• 23:01
  Speaker 2: I mean, I wonder what happens at the next conference
• 23:04
  Speaker 2: the justices have, whether there is tension in the air. Well.
• 23:08
  Speaker 1: This is something very personal to Justice Soda my Or.
• 23:10
  Speaker 4: I mean, she's the first Hispanic on the Court, and
• 23:13
  Speaker 4: she sees that Trump's immigration policies have targeted Hispanics, and
• 23:19
  Speaker 4: in this one in particular, which allows ICE to go
• 23:23
  Speaker 4: and question and detain people solely because of race, because
• 23:27
  Speaker 4: of the language we're speaking, And she thought that this
• 23:31
  Speaker 4: would be unconstitutional to do so because they don't have problem,
• 23:33
  Speaker 4: cause they don't have any evidence that someone is undocumented
• 23:37
  Speaker 4: other than the languages are speaking where they're hanging out
• 23:39
  Speaker 4: and their race. And Justice Kavanaugh had a concurring opinion
• 23:44
  Speaker 4: that offended not just Justice Soda my R, but others,
• 23:47
  Speaker 4: especially progressives who look tone deaf. Where Justice Kavanaugh was say, well,
• 23:51
  Speaker 4: you know, these are just temporary stops, and all you
• 23:53
  Speaker 4: have to do is just prove that they're not undocumented
• 23:56
  Speaker 4: and they're released when in reality, it's a lot more
• 23:59
  Speaker 4: than that, and that's why people on the left call
• 24:02
  Speaker 4: them Kavanaugh stops to this day, So Justice sodymer is
• 24:06
  Speaker 4: reflecting the sentiments the outrage on the left.
• 24:09
  Speaker 2: In twenty twenty four, she and conservative Justice Amy Coney
• 24:13
  Speaker 2: Barrett would appear together. They made several joint appearances to
• 24:17
  Speaker 2: try to show, you know, collegiality and civil disagreement and
• 24:21
  Speaker 2: to promote public trust in the court.
• 24:24
  Speaker 4: Amy Coney Barrett's key the reason why you don't want
• 24:26
  Speaker 4: to mess with Amy Conebarrett because it's her court. This
• 24:29
  Speaker 4: is a Barrett justice Roberts court because of the two
• 24:32
  Speaker 4: swing justices. See, Kavanaugh doesn't get that grace because he's
• 24:36
  Speaker 4: not a swing justice. He is seen as in the
• 24:39
  Speaker 4: can for Trump. And so Sody Mars is essentially saying, ed,
• 24:43
  Speaker 4: I'll take him on. I would bet that if it
• 24:45
  Speaker 4: was Amy Coney Barrett who had that concurrence, she wouldn't
• 24:47
  Speaker 4: be as quick to lash out at her.
• 24:50
  Speaker 2: You make an interesting point, Dave, Thanks so much for
• 24:53
  Speaker 2: joining me today. That's day the Arenberg, former Palm Beach
• 24:57
  Speaker 2: County State attorney. Coming up next on The Bloomberg Law Show.
• 25:01
  Speaker 2: Some members of the mob who stormed the capital on
• 25:04
  Speaker 2: January sixth are suing the government for millions of dollars,
• 25:09
  Speaker 2: claiming police officers who defended the capitol that day were
• 25:13
  Speaker 2: using excessive force. I'm June Grosso, and you're listening to Bloomberg.
• 25:18
  Speaker 2: Some members of the mob who stormed the capital on
• 25:21
  Speaker 2: January sixth are now suing the federal government asking for
• 25:26
  Speaker 2: about eighteen million dollars in damages. They claim they suffered
• 25:31
  Speaker 2: physical and emotional injuries from the indiscriminate use of force
• 25:35
  Speaker 2: by the police officers who defended the capitol that day.
• 25:39
  Speaker 2: The lead plaintiff in this proposed class action is aj Fisher,
• 25:44
  Speaker 2: who was charged with assault before his case was erased
• 25:48
  Speaker 2: by the blanket pardon from President Donald Trump. It will
• 25:51
  Speaker 2: be up to the Justice Department to decide whether to
• 25:54
  Speaker 2: fight the case or settle it. Last summer, the Department
• 25:58
  Speaker 2: agreed to pay out five million dollars to the family
• 26:02
  Speaker 2: of Ashley Babbitt, a January sixth rioter who was shot
• 26:05
  Speaker 2: and killed by police as she tried to enter the
• 26:09
  Speaker 2: Speaker's lobby. Joining me is Dennis Fann, a professor at
• 26:13
  Speaker 2: Columbia Law School and a former prosecutor at the Justice Department, Dennis,
• 26:18
  Speaker 2: this isn't the only suit where people in the January
• 26:22
  Speaker 2: sixth mob are trying to recover money.
• 26:26
  Speaker 5: Well, there's been definitely multiple instances of you know, trying
• 26:31
  Speaker 5: to sue the United States for damages. This class action
• 26:37
  Speaker 5: is one of those, is probably the most recent one.
• 26:41
  Speaker 5: Most notably Donald Trump. Also there's reports that he filed
• 26:46
  Speaker 5: an FTCA administrative claim to get something along the lines
• 26:51
  Speaker 5: of people think it's like two hundred and thirty million
• 26:53
  Speaker 5: dollars or something from the government. I think this has
• 26:57
  Speaker 5: been sort of and parcel of what these January six
• 27:00
  Speaker 5: riders have been thinking about. There are, of course a
• 27:03
  Speaker 5: lot of individuals at January Thats who participated in it,
• 27:07
  Speaker 5: and many of them, now that they've been pardoned or
• 27:09
  Speaker 5: had their senses commuted, are kind of coming back and saying, actually,
• 27:13
  Speaker 5: we are we were the good guys in this whole thing,
• 27:16
  Speaker 5: and it is a police that assaulted us, not the
• 27:18
  Speaker 5: other way around.
• 27:19
  Speaker 2: So they're trying to rewrite history basically.
• 27:23
  Speaker 5: Yeah, I mean, I think they're trying to rewrite history.
• 27:25
  Speaker 5: I think that's probably the best way to think about it, right.
• 27:30
  Speaker 5: I mean, the current president and one of the first
• 27:34
  Speaker 5: things he did was to blanket part in all of
• 27:37
  Speaker 5: these individuals, regardless of how violent they were, regardless of
• 27:43
  Speaker 5: what kind of intent that they had. And that wasn't
• 27:45
  Speaker 5: just to get them out of jail. It was to
• 27:48
  Speaker 5: make it seem like they really were not culpable, that
• 27:54
  Speaker 5: they had no culpability, that they were on the right
• 27:58
  Speaker 5: side of things. And it's a really kind of cynical
• 28:00
  Speaker 5: way for your bedding history where you know, people often
• 28:04
  Speaker 5: joke with the winner's write history, but that's truly what's
• 28:07
  Speaker 5: happening is that they feel like, because they want an election,
• 28:11
  Speaker 5: they hold the keys to the truth that they were
• 28:15
  Speaker 5: they were right about everything, but you know, you can
• 28:17
  Speaker 5: both win an election and I could be wrong about
• 28:20
  Speaker 5: the January sixth ride and the insurrection.
• 28:23
  Speaker 2: Tell us more about their claims.
• 28:25
  Speaker 5: Yeah, So the claim is one under the Special Torque
• 28:28
  Speaker 5: Claims Act, and that PCA is just a broad statute
• 28:34
  Speaker 5: you might think of. You know, normally, when you get
• 28:37
  Speaker 5: into a car crash with somebody, right like, you have
• 28:39
  Speaker 5: a you have a torque claim and you can see
• 28:41
  Speaker 5: them in torque. And what the Federal trit claim back
• 28:44
  Speaker 5: does is it lets you bring tort actions against federal
• 28:48
  Speaker 5: officers it's a federal officer, you know, a postal truck
• 28:53
  Speaker 5: to hit you with their car or hit your car,
• 28:56
  Speaker 5: you would you bring an FPCA claim, you'd islo it
• 29:00
  Speaker 5: administrative claim first with the government. The government would either
• 29:04
  Speaker 5: act on that or not and kind of pay you
• 29:06
  Speaker 5: out or designed not to. And then if they didn't,
• 29:10
  Speaker 5: you would file a case in court under the FTCA.
• 29:14
  Speaker 5: It'd be just like any other kind of court case.
• 29:16
  Speaker 5: And so these these individuals are claiming that, you know,
• 29:21
  Speaker 5: the officers or negligence officers also intentionally kind of use
• 29:25
  Speaker 5: excessive force. You know, usually what happens in all of
• 29:30
  Speaker 5: these things is the main defense, or one of the
• 29:33
  Speaker 5: main defenses, is that the government says what we were
• 29:36
  Speaker 5: doing was discretionary. Right, There's something called the discretionary function exception.
• 29:41
  Speaker 5: This is way down in the weeds of the law,
• 29:44
  Speaker 5: but what it means is if it's something where the
• 29:46
  Speaker 5: government had some discretion, where officers didn't have an exact
• 29:51
  Speaker 5: white look, then that's a complete defense to a tort diction.
• 29:56
  Speaker 5: So you know, this might come up when you have
• 29:58
  Speaker 5: park rangers who are fighting a so you know, fire
• 30:02
  Speaker 5: burns down a bunch of things. You say, well, the
• 30:05
  Speaker 5: park rangers were totally negligent. And you know, the park
• 30:08
  Speaker 5: rangers are going to come in court and they're going
• 30:09
  Speaker 5: to say, oh, look, there's not really exactly a playbook
• 30:12
  Speaker 5: on how you find a fire. Sometimes you start on
• 30:14
  Speaker 5: this side, sometimes you start on that side. Sometimes you
• 30:17
  Speaker 5: kind of let things burn for a little bit, to
• 30:19
  Speaker 5: let the fire kind of burn out. Other Times, you know,
• 30:23
  Speaker 5: you try to throw some sand over the area. Other
• 30:26
  Speaker 5: times you kind of send in a whole bunch of individuals.
• 30:29
  Speaker 5: Sometimes you don't send in that many, and there's a
• 30:31
  Speaker 5: whole variety of choices, and there's not an exact line
• 30:35
  Speaker 5: by line playbook of what should happen, and so the
• 30:38
  Speaker 5: discretionary function, exception well almost always in those cases kind
• 30:42
  Speaker 5: of kick out it towards you. I mean, that's like
• 30:45
  Speaker 5: probably what you would think of is the right results
• 30:48
  Speaker 5: here is you know, there's not really a playbook for
• 30:51
  Speaker 5: the Capitol police where when it's like where there wasn't
• 30:55
  Speaker 5: Maybe there is now, but back then there wasn't really
• 30:58
  Speaker 5: a playbook of like what happens when as a violent
• 31:01
  Speaker 5: mob drives to overturnment election, Like the what is like
• 31:05
  Speaker 5: step one and step two and step three of what
• 31:07
  Speaker 5: you're supposed to do, and that as usually is a defense.
• 31:11
  Speaker 2: Do you think this case will survive to a trial
• 31:14
  Speaker 2: or will it be dismissed beforehand?
• 31:17
  Speaker 5: I don't think the hope here is that they're going
• 31:19
  Speaker 5: to litigate this to judgment. They're going to kind of
• 31:23
  Speaker 5: finish the lawsuit and a judge or a jury is
• 31:26
  Speaker 5: going to rule on the case, and that they're going
• 31:28
  Speaker 5: to get to win. I think they're hoping is that
• 31:32
  Speaker 5: they're going to get settlement out of it. I think
• 31:34
  Speaker 5: they're taking their cues and they have maybe it's a
• 31:39
  Speaker 5: real view of or kind of a real estue of
• 31:42
  Speaker 5: what the Department of Justice currently is like. Maybe it's
• 31:45
  Speaker 5: a highly politicized or cynic will view of what the
• 31:48
  Speaker 5: Department of Justice is like. But I think their hope
• 31:50
  Speaker 5: is that they're going to bring this lawsuits and then
• 31:52
  Speaker 5: somebody at DOJ just because they why not settle this
• 31:55
  Speaker 5: with them?
• 31:56
  Speaker 2: I mean, there's precedent for that, right. We had the
• 32:00
  Speaker 2: Ashley Babbitt settlement for what five million dollars and Michael Flynn,
• 32:04
  Speaker 2: the former National security advisor who had pled guilty at
• 32:08
  Speaker 2: one point, he got more than a million dollars. I
• 32:12
  Speaker 2: mean the Justice Department can just settle these lawsuits right
• 32:15
  Speaker 2: without any authorization from a judge or anything like that.
• 32:20
  Speaker 5: Yeah, I mean, depending on how much money it is,
• 32:22
  Speaker 5: they can go up to different chains. If I last
• 32:25
  Speaker 5: remember correctly, it's like like four million dollars or something,
• 32:29
  Speaker 5: the head of the Civil Division can settle that. But
• 32:31
  Speaker 5: if it's like over that, then you know, the Attorney
• 32:33
  Speaker 5: General has to personally sign off on it, which kind
• 32:37
  Speaker 5: of raises a whole set of questions if these individuals
• 32:40
  Speaker 5: were individuals who might have us engaged in criminal conduct.
• 32:44
  Speaker 5: But yeah, they could sign off on it. You don't
• 32:47
  Speaker 5: really I mean these settlements, you don't really have an
• 32:50
  Speaker 5: ability to come We're kind of a strong ability to
• 32:54
  Speaker 5: come in and object to them. So that's the real
• 32:57
  Speaker 5: danger of it. And I think you're right with the
• 33:00
  Speaker 5: the David example and the microplane example. They raised the
• 33:03
  Speaker 5: kind of a whole host of issues about how the
• 33:05
  Speaker 5: government has been using its authority to settle these types
• 33:09
  Speaker 5: of cases. I mean, just to say this bluntly, but
• 33:11
  Speaker 5: like you know, actually data of course, like died in
• 33:14
  Speaker 5: the attack issue a shot, these individuals are nowhere close
• 33:19
  Speaker 5: to that life like they were kind of by all
• 33:22
  Speaker 5: accounts subject to what you would think of as like
• 33:26
  Speaker 5: ordinary crowd control tactics. They weren't subject to things that
• 33:29
  Speaker 5: are Do you think of it as or nearly an
• 33:32
  Speaker 5: excessive force, right?
• 33:34
  Speaker 2: I mean, it's stunning to me that they're bringing a
• 33:37
  Speaker 2: case like this and just trying to rewrite history.
• 33:42
  Speaker 5: I mean, it's expending that they're rewriting history to their
• 33:45
  Speaker 5: they're rewriting their own history. And their history was that
• 33:48
  Speaker 5: the Capitol police loved them and that they you know,
• 33:52
  Speaker 5: ushered them in that they were complete fans of these people.
• 33:58
  Speaker 5: They were giving them tours, totally happy to have all
• 34:01
  Speaker 5: these insurrectionist of the capital. And now they're saying, well, no, no, no,
• 34:06
  Speaker 5: they actually the Capital Beliefs were the ones using access
• 34:09
  Speaker 5: before that they were kind of antagonistic to these individuals.
• 34:14
  Speaker 5: And you're like, well, you know, which which way was it?
• 34:16
  Speaker 5: Is it that they saw you as kind of in
• 34:19
  Speaker 5: directionists or is that they saw you as kind of
• 34:21
  Speaker 5: friendly visitors? Were you innocent? Were you not a scammed
• 34:25
  Speaker 5: through the names? But like, there are a number of
• 34:27
  Speaker 5: these individuals who were members of the Broad Boys that right,
• 34:30
  Speaker 5: and who were kind of charged as such. I think
• 34:33
  Speaker 5: they can't even get their own sort of historical narrative right,
• 34:36
  Speaker 5: and they're they're using it selectively when it helps them.
• 34:40
  Speaker 2: It will be very interesting to see if the Justice
• 34:43
  Speaker 2: Department decides to settle this case. Thanks for joining me
• 34:48
  Speaker 2: on the show. That's Professor Dennis Fan of Columbia Law School,
• 34:53
  Speaker 2: and that's it for this edition of The Bloomberg Law Show.
• 34:55
  Speaker 2: Remember you can always get the latest legal news on
• 34:58
  Speaker 2: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,
• 35:02
  Speaker 2: and at www dot Bloomberg dot com slash podcast Slash Law,
• 35:08
  Speaker 2: and remember to tune into The Bloomberg Law Show every
• 35:10
  Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso
• 35:14
  Speaker 2: and you're listening to Bloomberg