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911 Deal Revoked & NBA Teams Sued · Bloomberg Law

0:03
Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
0:10
Speaker 1: Last Friday, there was a stunning reversal of the announced
0:13
Speaker 1: plea deal for the alleged mastermind of nine to eleven
0:17
Speaker 1: and two of his co conspirators. It came in a
0:20
Speaker 1: letter from Secretary of Defense Lloyd Austin to the head
0:23
Speaker 1: of the US Military Commission in Guantanamo, saying he was
0:27
Speaker 1: withdrawing from the three pre trial agreements that she'd signed
0:31
Speaker 1: just two days before. That deal would have seen Khalid
0:35
Speaker 1: Sheik mohammedan two others plead guilty to the murder of
0:39
Speaker 1: two thy nine hundred and seventy six people in exchange
0:43
Speaker 1: for a life sentence. Austin has said that's not the
0:47
Speaker 1: right move.
0:48
Speaker 2: I long believed that the families of the victims are
0:52
Speaker 2: service members and the American public deserved the opportunity to
0:58
Speaker 2: see military commissions commission trials carry out in this case.
1:04
Speaker 1: And many of the nine to eleven families agree with
1:07
Speaker 1: Austin and had reacted with anger to the deal. So
1:11
Speaker 1: the death penalty is now back on the table. Joining
1:15
Speaker 1: me is Palm Beach County State Attorney Dave Arenberg, the
1:19
Speaker 1: head of the Military Commission, a retired brigadier general, signed
1:23
Speaker 1: a pre trial agreement last Wednesday with three of the
1:28
Speaker 1: nine to eleven terrorists. There was an outcry by a
1:31
Speaker 1: lot of the family members. Then Secretary of Defense Lloyd
1:35
Speaker 1: Austin comes along and says, no, I'm not authorizing it.
1:40
Speaker 1: How unusual is it for a deal to be announced
1:44
Speaker 1: and then retracted? Right now? I can't think of another
1:47
Speaker 1: instance like it.
1:49
Speaker 3: This case is unusual because of its magnitude, talking about
1:53
Speaker 3: people who are responsible for the death of three thousand
1:56
Speaker 3: Americans on nine to eleven, And so when you make
1:58
Speaker 3: a deal like this, you have to assume that everyone
2:00
Speaker 3: has signed off on it. And I have to believe
2:04
Speaker 3: that if Secretary Austin didn't know about it, then he
2:08
Speaker 3: should have at the time. And the fact that he
2:10
Speaker 3: put the kebash on the deal so quickly after the
2:12
Speaker 3: outcry to me makes me think it's a little bit
2:15
Speaker 3: about politics. There's an election coming up, and you don't
2:18
Speaker 3: want the image of all these families who have endured
2:20
Speaker 3: so much to be complaining about the United States government
2:24
Speaker 3: selling them out. And in reality, if you want to
2:27
Speaker 3: blame an administration for this, though, that's fair, but don't
2:30
Speaker 3: blame the Biden administration. You should blame the George W.
2:33
Speaker 3: Bush administration who sanctioned torture, and that's what led us
2:36
Speaker 3: to where we are today.
2:37
Speaker 1: Explain why this case or these cases have been languishing
2:41
Speaker 1: for so many years.
2:44
Speaker 3: Yeah, KSM was first caught and rested about twenty one
2:48
Speaker 3: years ago. I mean, this is outrageous that it's taken
2:51
Speaker 3: this long. But when you have confessions elicited by improper means,
2:55
Speaker 3: such as torture, that's going to slow down the process,
2:58
Speaker 3: and the judge is considering whether or not to throw
3:00
Speaker 3: out the confessions. And if you lose the confessions, it
3:03
Speaker 3: makes the case that much harder. And I think the
3:04
Speaker 3: prosecutors saw that and realized that we could lose this
3:09
Speaker 3: case and let's just get what we can and convict
3:13
Speaker 3: them and sentence them to life forever. The victms' families
3:15
Speaker 3: were not just on one side. It was a mix
3:17
Speaker 3: of opinions. Some supported the deal, some opposed it. And
3:20
Speaker 3: prosecutors just saw this and they're not politicians, and that's
3:23
Speaker 3: why they did this so close to the election, where
3:26
Speaker 3: I got to believe the political leader said hey, hey, hey,
3:29
Speaker 3: this may be the end result that is necessary if
3:32
Speaker 3: the judge throws out the confessions. But until that happens,
3:36
Speaker 3: we're not going to enter into the settlement agreement this
3:38
Speaker 3: close to an election.
3:39
Speaker 1: Well, also, they had rejected the White House or Secretary
3:44
Speaker 1: of Defense Austin had rejected a plea deal that was
3:48
Speaker 1: talked about in September less September.
3:51
Speaker 3: Yeah, it's not clear whether or not the terms of
3:54
Speaker 3: that plea deal were accepted by the government in this
3:57
Speaker 3: version of it. We don't know whether the garment and
4:00
Speaker 3: accepted their demands of no solitary confinement and all these
4:04
Speaker 3: other requirements, which I find it hard to believe that
4:06
Speaker 3: you would agree to these things if you're going to
4:08
Speaker 3: agree to make a deal with the devil, which unfortunately
4:11
Speaker 3: happens in the prosecutorial profession. I mean, it's one of
4:14
Speaker 3: the toughest things we have to do sometimes to attain
4:16
Speaker 3: a measure of justice. But if you're going to agree
4:18
Speaker 3: to that, the only thing you're going to give up
4:20
Speaker 3: is giving up the death penalty, and you're going to
4:22
Speaker 3: want to lock them up in a prison or a
4:24
Speaker 3: military prison forever, and you don't want to give many
4:28
Speaker 3: special privileges or benefits or make concessions. You've got the
4:32
Speaker 3: ace in the whole, which is you've got evidence, and
4:35
Speaker 3: you've got the power of the government dealing with enemy combatants.
4:38
Speaker 3: And so the only thing I think they would ever
4:40
Speaker 3: give up or should give up, would perhaps be the
4:42
Speaker 3: death penalty, only because of the fact that if there
4:46
Speaker 3: was torture to alicited confession, that does complicate things.
4:49
Speaker 1: The defense attorneys called the move corrupt. The defense attorneys
4:52
Speaker 1: for the nine to eleven terrorists, we had an unprecedented
4:55
Speaker 1: act by a government official to pull back what was
4:58
Speaker 1: a valid agreement, and one of the defensive journeys argued
5:02
Speaker 1: at a hearing that Austin lacked the authority under the
5:05
Speaker 1: military's Manual for Military Commission to scrap the plead deals
5:09
Speaker 1: because the alleged chairrists had quote begun very important, substantive,
5:14
Speaker 1: specific performance to hold up their end of the deal.
5:17
Speaker 1: I have no idea what that possibly could be.
5:19
Speaker 3: That means cooperation, that means giving up other people. Remember
5:23
Speaker 3: KSM who's the head of this. He was unrepentant, he
5:26
Speaker 3: was defiant from the beginning. Well now here he is
5:29
Speaker 3: accepting guilt and pleading for mercy and pleading for his life.
5:33
Speaker 3: So even if this deal went through, it is a
5:35
Speaker 3: victory for the families of the nine to eleven victims
5:38
Speaker 3: because they broke this guy finally. But when I hear
5:42
Speaker 3: his lawyers saying, hey, we had a deal, we want
5:45
Speaker 3: the deal, that makes me, as a prosecutor, think maybe
5:47
Speaker 3: the deal wasn't so good. Maybe Secretary Austin did the
5:50
Speaker 3: right thing in stopping the deal. My only concern is
5:53
Speaker 3: if you lose the confessions because of the torture that
5:57
Speaker 3: occurred at secrets AA facilities around the world or a
6:00
Speaker 3: camp X ray at GIMO, then it makes this job
6:03
Speaker 3: so much harder for prosecutors. And perhaps at that point
6:06
Speaker 3: you would have wanted the deal that had been entered into.
6:09
Speaker 1: And the prosecutors can't be too happy that a judge
6:13
Speaker 1: in the Guantanamo case involving the bombing of the USS
6:17
Speaker 1: coal throughout a confession that he said was the product
6:20
Speaker 1: of torture.
6:21
Speaker 3: That's the problem. See, that's the problem. Like, oh, some
6:23
Speaker 3: of the law deserved the death penalty. Khaleauch Sheik Muhammad
6:26
Speaker 3: deserves the death penalty, But because the Bush administration had
6:31
Speaker 3: allowed torture to occur, it just makes it that much
6:34
Speaker 3: more difficult. For prosecutors who cannot elicit confessions based on
6:37
Speaker 3: improper means. And not only that, it also hurt the
6:40
Speaker 3: United States reputation around the world because it became a
6:42
Speaker 3: recruiting tool for jihadis. So for those who support the
6:47
Speaker 3: use of torture, it doesn't provide solid confessions. I mean, sadly,
6:51
Speaker 3: John McCain's not here anymore. But John McCain was opposed
6:53
Speaker 3: to torture because you elicit confessions that are not necessarily truthful,
6:57
Speaker 3: just whatever people will say at the time, and also
7:00
Speaker 3: damages our reputation around the world, and it really is
7:03
Speaker 3: not in line with American values. You don't have to
7:05
Speaker 3: use torture to gain evidence to prosecute these people and
7:08
Speaker 3: give them the death penalty. And perhaps if the torture
7:11
Speaker 3: was not used, these people would have met the ultimate
7:14
Speaker 3: penalty already.
7:15
Speaker 1: So this was a signed plea deal. The head of
7:17
Speaker 1: the US Military Commission signed this plea agreement. Is there
7:21
Speaker 1: any legal challenge to Secretary Austin coming in and saying no,
7:27
Speaker 1: we're not going to do it.
7:29
Speaker 3: I mean, they can try, but Secretary of Defense does
7:33
Speaker 3: have the authority to say no to a deal. Now,
7:35
Speaker 3: their best argument is that we've already started to perform
7:38
Speaker 3: our end of the deal. It's too late to turn back.
7:40
Speaker 3: But the deal had just been announced, so I don't
7:42
Speaker 3: know what kind of performance they had already done. Did
7:44
Speaker 3: he all of a sudden give up every name, and
7:46
Speaker 3: so that's going to be I think the decision for
7:48
Speaker 3: the court if the court says, yeah, look, he already
7:50
Speaker 3: gave us. He gave us all the stuff that we've
7:52
Speaker 3: already acted on. But that's impossible. So I think that
7:56
Speaker 3: in the end, this is sour grapes by the defense
7:58
Speaker 3: lawyers who are just upset that the political blowback caused
8:03
Speaker 3: Secretary of Austin to step in and say no, but
8:05
Speaker 3: you know what, that's our system, and they're lucky that
8:09
Speaker 3: they're not getting justice in some other countries courts overseas,
8:13
Speaker 3: where there would be no justice, they'd be their heads
8:16
Speaker 3: be taken off immediately. So you know, we have a
8:18
Speaker 3: system of the United States, even in military courts, military tribunals,
8:21
Speaker 3: that's a lot more fair than what they would get elsewhere.
8:25
Speaker 1: It wasn't disclosed where they would serve their sentence, but
8:28
Speaker 1: some of the family members were upset if their sentence
8:31
Speaker 1: would be served in Guantanamo. They wanted them to serve
8:34
Speaker 1: their sentence in a supermax prison.
8:36
Speaker 3: There was a lot of political pushback in bringing these
8:39
Speaker 3: hardened terrrists to American soil, to our country. When there
8:43
Speaker 3: was an attempt by then Attorney General Eric Holder to
8:46
Speaker 3: have the trials in the Southern District of New York
8:49
Speaker 3: in Manhattan, politicians like Senator Schumer opposed it. They did
8:53
Speaker 3: not want these terrorists here in our community. And had
8:58
Speaker 3: that happened, had they been tried, you know, they could
9:01
Speaker 3: have already been found guilty and been given the death penalty.
9:03
Speaker 3: So Eric Holder is saying, you see, this is the
9:06
Speaker 3: alternative is you put them in Gitmo, and now you
9:08
Speaker 3: don't have true justice. It's been twenty one plus years.
9:12
Speaker 3: So as far as where they serve their sentence, I
9:15
Speaker 3: think that they will serve it at Gitmo or at
9:17
Speaker 3: some military facility, not in the United States, because the
9:21
Speaker 3: President has been there that the politicians, the elected officials
9:24
Speaker 3: do not want these monsters living amongst us, even in
9:28
Speaker 3: a supermax prison.
9:29
Speaker 1: Some think that this never will go to trial because
9:32
Speaker 1: of all the problems. Do you think it can go
9:34
Speaker 1: to trial?
9:35
Speaker 3: I think it can, but just incessant delays, and justice
9:38
Speaker 3: delayed is justice denied. And tell you this, I know
9:41
Speaker 3: a lot of people when they think of Gitmo, they
9:42
Speaker 3: think of Camp x Ray where they did torture, miserable facilities.
9:46
Speaker 3: About seven years ago, I went to Gimo as an
9:49
Speaker 3: observer for some of these hearings of these terrorists, and
9:53
Speaker 3: the hearing that I just randomly was watching was one
9:57
Speaker 3: where you had someone who was locked up up at
10:00
Speaker 3: Gitmo whose lawyer was saying that he deserves to have
10:04
Speaker 3: his laptop with Netflix on it. We are a far
10:07
Speaker 3: cry from the days of Camp x Ray, when now
10:10
Speaker 3: it's a question of whether or not they can have
10:12
Speaker 3: Netflix in their cells. And when I saw some of
10:15
Speaker 3: the cells, they were I would say even more upscale
10:19
Speaker 3: than the ones you see in some of our prisons
10:21
Speaker 3: in the United States. In the one facility I saw,
10:23
Speaker 3: there was a big arrow on the ground, and the
10:27
Speaker 3: arrow is to tell the inmates which way is Mecca,
10:31
Speaker 3: so they know where to pray during the day. And
10:33
Speaker 3: so that's how far we've come from the days where
10:36
Speaker 3: there was waterboarding at Gitmo.
10:39
Speaker 1: So jury selection in the trial, which is expected to
10:43
Speaker 1: last twelve to eighteen months, wasn't envisioned to start before
10:47
Speaker 1: twenty twenty six, and the judge in the case had
10:51
Speaker 1: been working toward deciding a series of challenges brought by
10:55
Speaker 1: defense lawyers, including whether to exclude the confessions that are
11:00
Speaker 1: key to the government's case. So I suppose the next
11:02
Speaker 1: thing we'll hear about is whether those confessions will be
11:05
Speaker 1: excluded or not. Stay with me, Dave. Coming up next
11:08
Speaker 1: on the Bloomberg Lan Show, we'll take a look at
11:11
Speaker 1: where the criminal case is against former President Donald Trump.
11:14
Speaker 1: Stand you're listening to Bloomberg. Former President Donald Trump was
11:21
Speaker 1: charged in four criminal cases to in federal court and
11:25
Speaker 1: to in state court. One of those indictments, in the
11:28
Speaker 1: New York hush money case, led to the first criminal
11:31
Speaker 1: conviction of a former president, but the other cases have
11:35
Speaker 1: been stalled, one even dismissed due to successful pre trial
11:39
Speaker 1: legal maneuvering by Trump and a controversial decision by the
11:43
Speaker 1: Supreme Court unpresidential immunity. And the judge in the hush
11:47
Speaker 1: money case has set some new timetables for rulings after
11:52
Speaker 1: Trump once again asked him to recuse himself because the
11:56
Speaker 1: judge's daughter had worked for Vice President Kamala Harris. Yes,
12:00
Speaker 1: I've been talking to Palm Beach County State Attorney Dave Arenberg,
12:04
Speaker 1: Dave Judge Juan Mrshan pushed back the date for his
12:08
Speaker 1: ruling on presidential immunity until two days before Trump's scheduled sentencing. So, naturally,
12:16
Speaker 1: the district attorney has urged the judge to reject Trump's
12:20
Speaker 1: argument that his felony conviction should be tossed due to
12:24
Speaker 1: presidential immunity. Tell us about the district attorney's arguments, and it.
12:29
Speaker 3: Said, no, this immunity decision doesn't apply here because the
12:32
Speaker 3: actions you were convicted of took place before you were president,
12:37
Speaker 3: and to the extent that there was evidence used from
12:40
Speaker 3: aids like Hopepix and Madeline Westerhout while you were president,
12:44
Speaker 3: they had nothing to do with official duties. They were
12:47
Speaker 3: a continuation of their roles before they became your employees.
12:53
Speaker 3: And in any event, even if those witnesses testimony were
12:57
Speaker 3: admitted improperly, it was what's called harmless or so even
13:01
Speaker 3: if you had Hope Picks testifying and is she shouldn't
13:03
Speaker 3: have because of this broad immunity ruling by the Supreme Court,
13:06
Speaker 3: it didn't make a difference in the jury's decision. You
13:08
Speaker 3: know how we know that. It's because the jury came
13:10
Speaker 3: back and asked questions before they came up with a verdict.
13:13
Speaker 3: They wanted to hear the testimony back of Michael Cohen
13:16
Speaker 3: and of David Pecker. They didn't care about hopepicks what
13:19
Speaker 3: she said. Madam Westerhott just gave some basic technical stuff
13:23
Speaker 3: like ministerial information. Now, the sentence will happen on the
13:28
Speaker 3: day it's supposed to. I think it's September eighteenth, and
13:30
Speaker 3: then it will be appealed by Trump and there will
13:32
Speaker 3: be delays. He will not serve a day before the election,
13:35
Speaker 3: and if he does become president again, he'll find a way,
13:38
Speaker 3: I think, to avoid serving any time at all.
13:41
Speaker 1: Let's talk about the DC election interference case, because it
13:45
Speaker 1: was returned to the trial Judge Tanya Chuckkin last Friday,
13:49
Speaker 1: August second, that was one month after the Supreme Court
13:52
Speaker 1: issue that game changing ruling on presidential immunity, and then
13:57
Speaker 1: on August third, the next day, which was she issued
14:01
Speaker 1: her first ruling, refusing Trump's efforts to dismiss the case
14:05
Speaker 1: based on accusations that Joe Biden pushed prosecutors to target him.
14:10
Speaker 1: Do you think the judge has been working during this
14:13
Speaker 1: delay due to the Supreme Court.
14:16
Speaker 3: Yeah, she, Jude Shuck is a really good judge, and
14:19
Speaker 3: she wanted this case to go, and she was told
14:21
Speaker 3: to stand back and stand by by the US Supreme Court.
14:25
Speaker 3: And once she was allowed to get the case again,
14:28
Speaker 3: she's moving ahead. But it doesn't mean that while there
14:30
Speaker 3: was a stay, she wasn't reading up on stuff and
14:33
Speaker 3: just preparing. She even said previously she would cancel her
14:36
Speaker 3: summer international vacation if that's what it took to try
14:39
Speaker 3: the case. Well, she's not going to be able to
14:41
Speaker 3: try the case before the election, but she could have
14:43
Speaker 3: an evident share hearing to determine whether Trump's actions fall
14:48
Speaker 3: under official duties or unofficial duties, and that could embarrass
14:51
Speaker 3: Trump because that would be open to the public and
14:54
Speaker 3: they would see some of the stuff he did before, during,
14:56
Speaker 3: and after January sixth. So it's going to be up
14:58
Speaker 3: to her. There's a scheduling order to that's coming out
15:01
Speaker 3: of joint scheduling order between trump slawyer's and Jack Smith's team,
15:05
Speaker 3: and I think that will give us some indication of
15:06
Speaker 3: where this is headed. I do think there will be
15:08
Speaker 3: action in this case before the election, whether it's a
15:12
Speaker 3: full evidence you're hearing like a mini trial as some
15:14
Speaker 3: of us wanted. Not sure yet. We'll know a lot
15:16
Speaker 3: more tomorrow.
15:17
Speaker 1: She's also scheduled in August sixteenth status conference.
15:20
Speaker 3: Yeah, so she's moving forward. See Trump would just like
15:23
Speaker 3: the throws under the rugs. They postponed this till after
15:25
Speaker 3: the election, or postponed it until half past never. But
15:29
Speaker 3: she's moving ahead. And she had to be a little
15:32
Speaker 3: perturbed because she was all set to go with this
15:34
Speaker 3: case and then saw how the Supreme Court not only
15:37
Speaker 3: did they bigfoot her and step in and put the
15:40
Speaker 3: cabash on it, but they had a chance back in
15:42
Speaker 3: December to intervene and they refuse to do so. So
15:45
Speaker 3: they let the DC Circuit Court of Appeals rule, which
15:48
Speaker 3: they did a very thorough job in ruling, and then
15:50
Speaker 3: they came back. So, yeah, now we're gonna undo it.
15:52
Speaker 3: And I gotta believe, like the rest of us, she's
15:54
Speaker 3: probably thinking, why didn't you just tell us this in advance,
15:57
Speaker 3: because through their actions they do look like they're putting
16:00
Speaker 3: their thumb on the scale for Donald Trump. And that's
16:02
Speaker 3: why people have such a dim view of the Supreme Court.
16:05
Speaker 3: These days, they look like a political institution. They're not
16:07
Speaker 3: supposed to. They're supposed to be above politics. Chief Justice
16:10
Speaker 3: Roberts wants us to buy into the Supreme Court as
16:13
Speaker 3: an a political institution. But he's part of the problem.
16:16
Speaker 3: He's the one who wrote the opinion in the immunity case.
16:19
Speaker 3: He's the one to offer such broad immunity that even
16:21
Speaker 3: Justice amy Cony Barrett, a Trump appointee, could not go
16:24
Speaker 3: along with part of it. So that's why I think,
16:27
Speaker 3: you know, he's hoist by his own patard. This is
16:29
Speaker 3: a problem of his own making.
16:31
Speaker 1: We should mention that if the Chief Justice is in
16:34
Speaker 1: the majority in a case, he decides who's going to
16:38
Speaker 1: write the opinion. And this term he wrote the majority
16:41
Speaker 1: opinion in two very important cases, the presidential immunity case
16:47
Speaker 1: and the decision to throw away the Chevron doctrine.
16:51
Speaker 3: He went farther than any of us thought he would go,
16:53
Speaker 3: because not only did he offer this broad immunity and
16:56
Speaker 3: a presumption of immunity for any semi outer band of
17:00
Speaker 3: an official act, but he also refused to even say
17:04
Speaker 3: what is an unofficial act. According to the indictment, he
17:07
Speaker 3: refused to say, like, hey, maybe the fake elector scheme
17:09
Speaker 3: is an unofficial act? Now you wouldn't say that. Maybe
17:12
Speaker 3: speaking at the ellipse and you know, antagonizing people, is
17:15
Speaker 3: that an unofficial like?
17:16
Speaker 2: No?
17:16
Speaker 3: Calling Brad Rathsenberger saying you're gonna you know, five eleven thousand,
17:20
Speaker 3: seven hundred and eighty votes, is that an unofficial like?
17:22
Speaker 1: Nah?
17:22
Speaker 4: Maybe not.
17:23
Speaker 3: So he could have, you know, put forward. It wheels
17:26
Speaker 3: a motion at least a smaller trial for Jacksonith, but
17:29
Speaker 3: he refused to do even that. And that's where Justice
17:31
Speaker 3: amy Cony Barrett said, Hey, you know, there are some
17:34
Speaker 3: easy parts of this indictment you could have allowed to
17:36
Speaker 3: go forward, and you didn't. And then he said, you
17:38
Speaker 3: can't even inquire into the executive branch to ask questions
17:43
Speaker 3: and interview witnesses and gain evidence, even if it relates
17:46
Speaker 3: to unofficial acts, because it could hurt the powers of
17:49
Speaker 3: the presidency. That's the worst part of the ruling. So
17:52
Speaker 3: he has made it very hard for prosecutors. And I
17:54
Speaker 3: think the ruling in itself is so confusing that at
17:58
Speaker 3: some point they're gonna have to revisit well, just.
18:00
Speaker 1: Like they're revisiting the decision taking away the constitutional right
18:03
Speaker 1: to abortion. They're going to be revisiting the decision, taking
18:06
Speaker 1: away Chevron a lot more work for themselves. So let's
18:10
Speaker 1: talk about the Florida case, which is completely off track.
18:15
Speaker 1: So Jack Smith is appealing. Do we know when he's
18:18
Speaker 1: going to file his papers?
18:20
Speaker 3: Well, he's going to the eleventh Circuit. He could have
18:21
Speaker 3: just said, all right, I'm not going to appeal. Let's
18:24
Speaker 3: refile the case through the US Attorney's office, not through
18:26
Speaker 3: Jack Smith, and then it would go faster and maybe
18:29
Speaker 3: even get a better excuse me for it, and slept
18:32
Speaker 3: a different judge better won can't be worser Jack Smith. Yeah, yeah,
18:37
Speaker 3: I mean Judge Canada is inexperienced. She has been delaying
18:42
Speaker 3: so many hearings and then has come up with such
18:44
Speaker 3: radical rulings that many observers like me are shaking their heads.
18:48
Speaker 1: As you mentioned, he could have refiled this. Wouldn't that
18:52
Speaker 1: have been an easier and quicker way to deal with this?
18:56
Speaker 3: Yes, but I think the Department of Justice did not
18:59
Speaker 3: want such an errant ruling to sit there. They want
19:01
Speaker 3: to appeal it to get that overturned. They believe, as
19:04
Speaker 3: I do, is probably you and most other people do that.
19:07
Speaker 3: Judge Cannon's ruling was wrongfully decided. It goes against all
19:10
Speaker 3: the president out there. Every other case is ruled the
19:13
Speaker 3: other way. So now you have a case that is
19:17
Speaker 3: in opposition to precedent. So what do you do? You
19:19
Speaker 3: try to overturn it. The problem is, even though I
19:22
Speaker 3: do think he's going to get it overturned by the
19:24
Speaker 3: Eleventh Circuit, what happens when the Supreme Court picks it up.
19:27
Speaker 3: We thought that the immunity decision was a no brainer.
19:29
Speaker 3: Are they going to come up with some new radical
19:31
Speaker 3: opinion that puts a hold on the special Council? And
19:35
Speaker 3: even if they just take it up and rule for
19:37
Speaker 3: Jack Smith, look all those delays you have. I say,
19:40
Speaker 3: just go ahead and let that opinion sit as an outlier,
19:44
Speaker 3: ignore it, and then have the US Attorney's Office file
19:48
Speaker 3: it again in the Southern District of Florida and move
19:52
Speaker 3: forward there. Now I know another objection is that, well
19:54
Speaker 3: that'll look more political. That's why there needs to be
19:57
Speaker 3: a special council. Come on, you can't persuade the unpersuadable.
20:00
Speaker 3: You're always going to look political whether you do or
20:01
Speaker 3: you don't. Just do what's right for the cause of justice.
20:04
Speaker 1: So it goes to the Eleventh Circuit, which is predominantly
20:08
Speaker 1: Republican appointed.
20:11
Speaker 3: Yeah, majority, it's conservative.
20:12
Speaker 1: It's conservative, And so in the first instance, it'll go
20:15
Speaker 1: to a panel three judge panel. Does it matter who's
20:18
Speaker 1: on that panel? Do you think in this case?
20:20
Speaker 3: Well, if you look at the panel that had the
20:24
Speaker 3: last appeal of a Judge Cannon order, the one involving
20:27
Speaker 3: the Special Master, that panel had three judges appointed by Republicans.
20:32
Speaker 3: Judge Pryor, who's the chief judge there, who was on
20:35
Speaker 3: the shortlist for the US Supreme Court for President Bush.
20:38
Speaker 3: He was one of the judges, and the other two
20:40
Speaker 3: judges were appointed by Donald Trump himself, and all three
20:43
Speaker 3: judges ruled against Judge Cannon and humiliated her, repudiated her
20:47
Speaker 3: in no uncertain term. So I don't think it matters
20:49
Speaker 3: who's on the panel. I think they're going to repudiate
20:51
Speaker 3: her again, but they will not take her off this case.
20:54
Speaker 3: For this I think the reason why Judge Cannon felt
20:57
Speaker 3: empowered to do what she did, to do something so radical,
21:00
Speaker 3: was because Justice Clarence Thomas, in the immunity decision, he
21:03
Speaker 3: did a concurring opinion that set forth a roadmap for
21:07
Speaker 3: Judge Cannon, even though this wasn't even an issue in
21:09
Speaker 3: front of Judge Justice Thomas. He gave her some maps
21:14
Speaker 3: of how to undo the special counsel, like a wink
21:17
Speaker 3: and a nod to her, and she took the bait,
21:19
Speaker 3: she ran with it. And that's why I don't think
21:21
Speaker 3: she can be taken off the case by the Eleventh
21:23
Speaker 3: Circuit when you're following the ruling even though it's just
21:27
Speaker 3: a concurring ruling that no one else signed off on
21:29
Speaker 3: of Justice Clarence Thomas.
21:31
Speaker 1: But what about all her decisions slowing down the case.
21:35
Speaker 3: Well, you have a lot of discretion as a judge
21:38
Speaker 3: on your scheduling, So her decisions to delay and ponder
21:42
Speaker 3: things not going to get her bounce from the case.
21:45
Speaker 3: What we'll get her balance is when she makes a
21:48
Speaker 3: radical ruling that goes against precedent and shows bias. And
21:53
Speaker 3: this I think would have gotten or taken off the
21:55
Speaker 3: case but for Justice Clarence Thomas's concurring opinion which no
22:00
Speaker 3: one else signed off on. So that makes me believe
22:02
Speaker 3: perhaps if this goes back to the US Supreme Court,
22:04
Speaker 3: which I think it inevitably will, that Jacksmith will win
22:08
Speaker 3: it's just more delays.
22:09
Speaker 1: Well, we thought he would win on presidential community too,
22:12
Speaker 1: So I think like all bets are off at this
22:14
Speaker 1: point as to what the Supreme Court will do. What
22:17
Speaker 1: about bringing the case in New Jersey or in DC.
22:22
Speaker 3: Yeah, it's tougher Bedminster, New Jersey where he waved around
22:26
Speaker 3: that document. You could try to do it based on
22:29
Speaker 3: that one document, But the documents are all of mar
22:31
Speaker 3: A Lago that you took from the White House, and
22:34
Speaker 3: so it's really not DC or Bedminster. You could try
22:37
Speaker 3: to do a little bit, maybe that one document ben Minster
22:39
Speaker 3: that we apparently know that he had that he's waving around.
22:41
Speaker 3: That's unlawful retention. Perhaps that's dissemination. But as far as
22:45
Speaker 3: where the case really needs to be, the obstruction the
22:50
Speaker 3: violation of the espionajack that allegedly occurred in South Florida
22:56
Speaker 3: in mar A Lago once he was a former president.
22:58
Speaker 3: You don't want to get into a game of venue
23:01
Speaker 3: wars where it's going to go up to appellate courts
23:03
Speaker 3: and then you get repudiated for trying to play the
23:06
Speaker 3: game of form shopping. It belongs to South Florida to
23:09
Speaker 3: do it there. He just got unlucky in getting Judge Cannon,
23:12
Speaker 3: which is why he should. I think, refile it and
23:13
Speaker 3: see if the chief judge will sign a different judge.
23:16
Speaker 1: But isn't it a random assignment.
23:18
Speaker 3: It is, and since Judge Cannon has this case, it's
23:21
Speaker 3: likely that she would get a refiled case again. But
23:24
Speaker 3: the chief judge down there, remember said that, hey, I
23:27
Speaker 3: think you should not be on this case. Remember, and
23:30
Speaker 3: yet she said no, I can handle it. So I
23:32
Speaker 3: think since the chief judge is the one who has
23:34
Speaker 3: some saying here, she may direct this case as a
23:37
Speaker 3: different judge if it's refiled down there properly from the
23:40
Speaker 3: US Attorney's office.
23:41
Speaker 1: That's unlikely, though. All indications are that Jack Smith is
23:45
Speaker 1: going to file an appeal with the Eleventh Circuit. Thanks
23:48
Speaker 1: so much for coming on the show, Dave. That's Palm
23:51
Speaker 1: Beach County State Attorney Dave Arenberg coming up next. Half
23:56
Speaker 1: of the NBA teams are sued for copyright infringement. This
24:00
Speaker 1: is Bloomberg. You know those catchy TikTok videos your favorite
24:05
Speaker 1: NBA team puts out. Well, nearly half the teams in
24:09
Speaker 1: the NBA are being sued for using copyrighted music by
24:14
Speaker 1: artists like Pitbull, Dua Lipa, Miley Cyrus, and Cardi B
24:19
Speaker 1: in promotional videos on TikTok, Facebook, Instagram, YouTube, and x
24:24
Speaker 1: formerly Twitter. The New York Knicks, the Philadelphia seventy six Ers,
24:29
Speaker 1: the Atlanta Hawks, and the Minnesota Timberwolves are among the
24:33
Speaker 1: teams being sued for syncing songs to video without permission,
24:38
Speaker 1: and the complaint alleges that the teams knew they are
24:41
Speaker 1: willfully infringing on the intellectual property rights. Joining me is
24:46
Speaker 1: intellectual property litigator Terren Swass a partner Katin Euchen Rosenman.
24:51
Speaker 1: But there are three different kinds of copyright infringement, alleged
24:58
Speaker 1: direct copyright infringement, contributory copyright infringement, and vicarious copyright infringement.
25:05
Speaker 1: What's the difference there?
25:06
Speaker 4: So the difference is essentially and who did want? Each
25:09
Speaker 4: of these fourteen complaints is against a different NBA basketball team,
25:15
Speaker 4: But in addition to naming the basketball team, it names
25:20
Speaker 4: multiple John or Jane does who have yet to be discovered.
25:26
Speaker 4: And that's what really counts two and three of mees
25:29
Speaker 4: just account one is for direct copyright infringement, probably directed
25:33
Speaker 4: against the team. I'm saying, hey, look you used our
25:36
Speaker 4: songs without authorization, without taking a license. Therefore you've committed
25:40
Speaker 4: direct copyright infringement. There probably are individual who affected that
25:48
Speaker 4: the person who actually loaded the video onto the social
25:54
Speaker 4: media platform, or if there was a third party business
25:59
Speaker 4: that was responsible for the social media account for a team,
26:03
Speaker 4: they might be liable for contributing to the copyright infringement
26:07
Speaker 4: committed by the team. And so those are really more
26:11
Speaker 4: sort of belt and suspender causes of action that are
26:16
Speaker 4: designed to just make sure that somebody doesn't slip out
26:19
Speaker 4: from under the ambit of the lawsuit by saying, well,
26:21
Speaker 4: I didn't directly do it, I simply helped them to
26:25
Speaker 4: do it. So, in a real sense, the cause of
26:30
Speaker 4: action here is for copyright infringement, and I think you
26:33
Speaker 4: can largely ignore the difference between contributor or indirect infringement.
26:37
Speaker 1: The complaint says defendants are acutely aware of the protections
26:41
Speaker 1: that the copyright laws afford, so they utilize the full
26:46
Speaker 1: extent of legal protections for their own intellectual property while
26:50
Speaker 1: willingly infringing on the intellectual property rights of the plaintiffs. So,
26:54
Speaker 1: I mean, fourteen teams, they must have known, didn't they
26:57
Speaker 1: get legal advice that this was not allowed without a license.
27:01
Speaker 4: Well, certainly, each of these teams owns copyrights and trademarks
27:07
Speaker 4: in types of intellectual property means, fundamentally, the NBA is
27:12
Speaker 4: an entertainment business, right entertaining all of us through competitive sports,
27:18
Speaker 4: and as with any entertainment business, they have to have
27:21
Speaker 4: copyrights on their broadcast, trademarks, on their logos, on the
27:26
Speaker 4: team names, et cetera. So they are aware of intellectual
27:30
Speaker 4: property laws. There's no question about that. And that paragraph
27:34
Speaker 4: and the complaint is sort of a gotcha. You know,
27:36
Speaker 4: you guys knew about the copyright laws, but you want
27:39
Speaker 4: to violate them anyway. The bigger question that you pose
27:42
Speaker 4: is how did this happen? Each of these NBA teams
27:46
Speaker 4: have in house legal staff. The league has a fairly
27:50
Speaker 4: large in house legal staff that can be accessed by
27:53
Speaker 4: the teams as necessary. I mean, most of the trademark
27:57
Speaker 4: registration process goes through the league, through the individual teams.
28:01
Speaker 4: And so the question is a very good one that
28:03
Speaker 4: you asked you and how could this happen? And the
28:05
Speaker 4: simple answer is that, as with many corporations, the mere
28:09
Speaker 4: fact that you're big and that you have knowledge of
28:12
Speaker 4: the intellectual property was doesn't mean that you have a
28:15
Speaker 4: large enough legal staff or legal staff that is experienced
28:19
Speaker 4: in intellectual property to be able to deal with every
28:22
Speaker 4: problem that comes up. The biggest problems that NBA teams
28:26
Speaker 4: face are labor and employment issue, so they obviously have
28:31
Speaker 4: people who are very familiar with employment issues and with
28:34
Speaker 4: the collective bargaining agreement. They also have basic contract problems,
28:38
Speaker 4: contracts with the venue that they play in, contracts with sponsors,
28:43
Speaker 4: and so they obviously have people on their legal staff
28:45
Speaker 4: who are very familiar contracts. That doesn't mean that they're
28:48
Speaker 4: going to have a copyright specialist because that doesn't come
28:51
Speaker 4: up as often, and they probably when they have a problem,
28:54
Speaker 4: refer to outside counsel in that field. And so the
28:57
Speaker 4: simple answer is you have their big corporation, but when
29:00
Speaker 4: it comes to social media platforms, they're often no more
29:04
Speaker 4: cognizant of what the rules are than any layperson like
29:08
Speaker 4: your kid or my kid.
29:10
Speaker 1: As far as possible defenses, might they claim fair use
29:13
Speaker 1: it was a pretty quick sampling of the music.
29:17
Speaker 4: I'm sure that they will claim that, and it would
29:20
Speaker 4: be a colorable defense. Let's just say I'm not sure
29:23
Speaker 4: that it would succeed in the long run, but it
29:25
Speaker 4: would certainly be a colorable defense. Here's the problem that
29:28
Speaker 4: they face. Each of these social media sites has a
29:31
Speaker 4: license with the major music publishing houses and recording studios,
29:36
Speaker 4: and they have available to their users hundreds of thousands
29:41
Speaker 4: pieces of music. The problem is that that license is
29:45
Speaker 4: limited to non commercial use. And this is where companies
29:51
Speaker 4: make mistakes all the time on social media platforms. And
29:54
Speaker 4: this is truly these lawsuits are truly a cautionary tale
29:58
Speaker 4: for every business that should wake up pay attention here.
30:01
Speaker 4: When a business goes on as a social media platform, it
30:04
Speaker 4: simply assumed that you're doing that for commercial purposes your business.
30:08
Speaker 4: What other purpose could there be other than for commercial purpose?
30:11
Speaker 4: And therefore that license that individual users teenagers for example,
30:17
Speaker 4: can take advantage of cannot be taken advantage of by
30:20
Speaker 4: a business because it expressly excludes commercial use on these websites,
30:25
Speaker 4: whether it be TikTok or Instagram or And that's the
30:29
Speaker 4: problem here is that these NBA teams did not seem
30:32
Speaker 4: to be cognizant of that limitation on the general available
30:37
Speaker 4: license and simply assumed that they could do this. And
30:39
Speaker 4: nobody really thought twice.
30:41
Speaker 1: And I assumed isn't a defense.
30:45
Speaker 4: I assumed it's not a defense like that famous Steve
30:48
Speaker 4: Martin witt. Sorry, you're hunter. I didn't know that armed
30:52
Speaker 4: robbery was against the law. You just can't. That doesn't
30:54
Speaker 4: work in a court of law. Fair use is a
30:57
Speaker 4: legitimate defense, but I just in light of the fact
31:00
Speaker 4: that they were trying to take advantage of a license
31:04
Speaker 4: to the site for music and simply didn't comply the
31:07
Speaker 4: right way, it makes it really hard to then succeed
31:11
Speaker 4: with the fair use defense. In my opinion, the.
31:14
Speaker 1: Music owners have been cracking down on these social media uses,
31:18
Speaker 1: and all three major labels sued drink maker Bang Energy
31:23
Speaker 1: for using hundreds of copyrighted songs in TikTok videos. A
31:27
Speaker 1: judge did rule in that case. He said, it doesn't
31:30
Speaker 1: really matter what Bang thought, which goes to the Steve
31:33
Speaker 1: Martin clip. Have these cases gone to judges or appellate
31:37
Speaker 1: courts yet.
31:38
Speaker 4: So there's a large number of these that have been
31:41
Speaker 4: percolating over the last year. The Beastie Boys sued Chili's,
31:46
Speaker 4: the restaurant chain, for using their song sabotage in social
31:50
Speaker 4: media clips. Sony sued Marriott just this last may for
31:56
Speaker 4: using some of its songs. Sony has a very large
31:59
Speaker 4: music and for Mary apparently use some of those in
32:03
Speaker 4: its social media platform campaigns. So you're seeing this happen
32:07
Speaker 4: all the time. It's part of a broader trend within
32:10
Speaker 4: the music business. The music industry and performers in general
32:14
Speaker 4: believe that they're being undercompensated, and so they have become
32:19
Speaker 4: very aggressive on the litigation front. There have been a
32:23
Speaker 4: number of lawsuits against streaming platforms, mostly recently Verizon utsuit
32:29
Speaker 4: alleging that they are willfully allowing this to happen, that
32:34
Speaker 4: people share songs notwithstanding getting copious numbers of copyright takedown
32:39
Speaker 4: notices from the music companies. And so this is just
32:42
Speaker 4: part of a larger trend of pushing back by music companies,
32:49
Speaker 4: recording studios, performers to try to capture more monetary compensation
32:55
Speaker 4: for their work.
32:56
Speaker 1: Because to me, this seems like an open and shutcase.
33:00
Speaker 4: Look, if I got hired to represent one of the teams,
33:03
Speaker 4: I'd be calling and trying to answer real quick what
33:06
Speaker 4: they want. You know, litigating a lawsuit like this can
33:09
Speaker 4: only be embarrassing at best, and at worst can really
33:14
Speaker 4: be a black eye for a team, particularly since the
33:18
Speaker 4: music ledged to be used here is by some of
33:20
Speaker 4: the most popular performers on the contemporary music scene. The
33:25
Speaker 4: allegations are that the songs used came from a Pitbull, Doja,
33:30
Speaker 4: Kat Dualipa, Miley, Cyrus, jay Z, Cardi B just to
33:35
Speaker 4: name a few. I mean, these are really popular performers
33:39
Speaker 4: and their fans tend to resent it when their music
33:43
Speaker 4: is being used improperly like this, and so this can
33:47
Speaker 4: only be a black eye for these NBA teams. There's
33:50
Speaker 4: that old thing, you know, the first rule of holes,
33:53
Speaker 4: h O l Ees is when you're in a hole,
33:56
Speaker 4: stop thinking. And so my view is, you know, I
33:59
Speaker 4: didn't book maya copa, Meicopa man Maxima culpa and do
34:03
Speaker 4: my five hail Mary's and pennants and and and move on.
34:06
Speaker 4: You know, just what is it that you want to
34:09
Speaker 4: make this go away? And do it and we'll promise
34:11
Speaker 4: never to do it again. And then I put in
34:13
Speaker 4: place some sort of training for the people who are
34:16
Speaker 4: actually doing my social media platform so that this never
34:20
Speaker 4: happens again. Now, part of the problem here is that sometimes
34:24
Speaker 4: corporations farm that workout to third parties. I mean, there
34:28
Speaker 4: are lots of companies who for a price, will do
34:31
Speaker 4: your social media postings for you. That's what most celebrities have.
34:38
Speaker 4: You know, you don't see people like Kevin Durant sitting
34:41
Speaker 4: down and doing his own posting on TikTok. What you
34:45
Speaker 4: see is, you know, wealthy people and big corporation uh
34:49
Speaker 4: pushing that out, outsourcing it to a third party. You
34:52
Speaker 4: will do it for them, and that's a different problem
34:56
Speaker 4: to accept. The NBD NBA teams are doing that, not
34:58
Speaker 4: doing it in house. They've got to crack down on
35:01
Speaker 4: that and make sure that their third party vendors who
35:05
Speaker 4: are providing these services are doing it in a lawful way.
35:10
Speaker 1: Maybe the Knicks thought that since jay Z is such
35:13
Speaker 1: a fan, and since scortside all the time, he wouldn't
35:16
Speaker 1: mind if they used his song.
35:18
Speaker 4: That could well be the case. I don't know. I
35:21
Speaker 4: suspect me honestly. I mean, we can laugh about this
35:24
Speaker 4: and it is comical in some ways, but I suspect
35:27
Speaker 4: that none of these teams realized what was going on.
35:31
Speaker 4: None of these teams would have willfully set out to
35:35
Speaker 4: break the copyright laws because they have their own copyrights
35:38
Speaker 4: and don't want them infringe. This is a mistake that
35:42
Speaker 4: the team's made, and it's what we would call in
35:46
Speaker 4: the business innocent infringement, and they should just do their penance,
35:50
Speaker 4: figure out what it needs to make this go away,
35:52
Speaker 4: and make sure it doesn't happen yet.
35:53
Speaker 1: It'll probably take more than a few hell Mary's, though,
35:57
Speaker 1: Thanks so much, Terry. That's intellectual property. Terence Ross a
36:01
Speaker 1: partner at Caton Euchen Rosenman. And that's it for this
36:05
Speaker 1: edition of the Bloomberg Law Podcast. Remember you can always
36:08
Speaker 1: get the latest legal news by subscribing and listening to
36:11
Speaker 1: the show on Apple Podcasts, Spotify, and at Bloomberg dot com,
36:15
Speaker 1: slash podcast, slash Law. I'm June Grosso and this is
36:19
Speaker 1: Bloomberg