This is Bloomberg Law with June Brusso from Bloomberg Radio.
It made him a very good deal and he shucked it up like a hoover belocked.
Senator John Kennedy was just one of the Republicans saying Hunter Biden got a sweetheart deal that will likely allow him to avoid time behind bars on tax and gun charges. Although Attorney General Merrick Garland maintains that he kept his promise not to interfere with US Attorney David Weisse's investigation and charging decision for the president's son.
So as I said from the moment of my appointment as Attorney General, I would leave this matter in the hands of the United States Attorney who was appointed by the previous president and assigned to this matter by the previous administration, that he would be given full authority to decide the matter as he decided that was appropriate.
After a five year investigation. The deal calls for Hunter Biden's son to plead guilty to two misdemeanor counts of failing to pay taxes and accept court imposed conditions that will allow him to avoid prosecution on a felony gun charge. Joining me is former federal prosecutor Robert Mintz, a partner at Macarter and English Weiss's office, said the tax charges each come with a maximum sentence of twelve months and that the gun charge carries up to ten years incarceration.
So Republicans have lasted the agreement, saying he's getting away with this slap on the wrist.
What do you think, Well, the investigation here has been conducted by David Weiss, who was the US Attorney for the state of Delaware appointed by President Trump, and President Biden allowed him to continue over into his administration, specifically so that he can continue this investigation into the president's son.
And according to the Attorney General Merrick Garland, who testified before Congress about this ongoing investigation, he said that he gave mister Weiss full authority and independence to decide whether to bring charges against mister Biden's son on which charges to bring. So there is at least an appearance of independence by this US attorney in these charging decisions. But as you point out, the investigation really boiled down to
two issues at the end of the day. Here. One was whether to indict Hunter Biden in connection with his failure to meet filing deadlines for his twenty seventeen at twenty eighteen taxes and whether he didn't properly claimed about thirty thousand dollars in deductions for business expenses. Mister Weiss said that mister Biden had earned more than one point five million in each of those years, but failed to pay income taxes during those years, which amotters to about
one hundred thousand dollars each year. Mister Biden subsequently paid that overdue bill in twenty twenty one. The second issue was one having to do with the purchase of a gun.
At the time.
Biden had filled out a government format every individual has to when purchasing a handgun, stating that he was not using drugs, and it was a parent from his erratic activity that mister Biden did have a drug issue at the time he purchased that weapon. So those are the two issues that ultimately this investigation came down to. But let's bear in mind that the investigation started off with
a much broader mandate. Mister Weiss was given authority to investigate mister Biden's activities regarding an array of issues, including his dealings with Chinese investors, his work with Barisma, a Ukrainian energy company on whose board he served while his father was Vice president, and at that time Vice President
Biden was overseeing the Obama administration's policy towards Ukraine. So these are large issues that have been within the ambit of mister Weiss's investigation, but at least to date, no charges have been brought in connection with any of those issues, and now we're facing only these two relatively minor issues involving taxes and involving the purchase of a handgun.
Some legal experts said that the use of a diversion agreement to resolve the gun charge was creative and fairly unusual, and Republican Senator Mike Lee retweeted criticisms of the agreement and said that pre trial diversion programs normally exclude offenses involving the brandishing of a firearm. Is that diversion agreement unusual?
Well, it is unusual for federal prostituts to use diversion agreements at all, and it also is unusual for federal prosecutors to charge misdemeanors. When I was a federal prosecutor for almost ten years, I could probably tell you on a single hand how many times misdemeanors were charged. Generally, if it doesn't amount to a felony, prosecutors on the federal level are not going to bother pursuing it, given
the limited resources that they have. But this is a very high profile case that was being watched very closely by the American public and by politicians on Capitol Hill, and so I think there was a lot of pressure for the US Attorney here to bring charges if there were provable charges, and here there definitely were provable charges. The facts regarding the failure to pay taxes were really never in dispute, and the misstatement and the purchase of
the handgun was also something that was not disputed. But these are charges that prosecutors will rarely bring because they're frankly, just not that serious, and generally prosecutors are not going to devote resources to something that doesn't amount to at least one felony charge.
Now, a judge, you'll have the final say on any sentence. In April, an IRS supervisor who'd been overseeing the Hunter Biden investigation went to Congress and alleged political favoritism in how the investigation was handled. We know that Congressional Republicans are still investigating Hunter Biden, So could the judge wait to decide whether or not to accept the deal until some of these investigations are well.
It's possible the judge can really do whatever he or she wants to do here. But typically if the Department of Justice is recommending a particular plea deal, it's rare for judges not to accept it. I will tell you that it does happen. It has happened a handful of times if a judge believes that the government is essentially giving away the store, or there's something improper about the
deal that the government has struck with a defendant. But generally, judges rely on the discretion of prosecutors to make the right decision, and there's lots of factors that can ultimately go into a decision about how to charge a particular case or whether to bring charges at all in the first place. So this is going to be something that I think everybody's going to watch carefully to see what
the judge does. But I think it's unlikely that the judge is not going to agree to it, particularly since it is being recommended by mister Weiss, who was a Trump appointed US attorney and who by all accounts, had complete independence in terms of whether or not to bring these charges on ultimately what charges to bring.
No doubt this is going to continue to be a political issue as the campaigns progress. But do you think it's sort of been a litmus test for the Justice Department about how it would handle this kind of politically explosive case.
Well, these kinds of cases historically have been very difficult for the Department of Justice to handle because of the post familiar relationship between the defendant and the president of the United States. We can think back on other presidents who had family members who were subject to criminal prosecutions, and it always is awkward because no matter what you do,
it seems like there's something improper. If they give a deal that seems to be too lenient, people are complaining that the president or the White House and political operatives interfered with the Department of Justice decisions.
If the Department of Justice.
Is aggressive, other people will say that is being done in order to make a political statement. So it's a tough line for prosecutors to walk in this case. But at the end, they have to look at the fact, they have to look at the circumstances that are unique to each case and decide what they think is an
appropriate resolution. This was a case that was being negotiated between mister Biden's lawyer and the Department of Justice for many, many months, and there, no doubt was a lot of back and forth here between the Department of Justice and mister Biden's lawyers as to whether or not there should be criminal charges at all, and if so, which ones he should ultimately have to be flead guilty to Bob.
I want to turn for a moment to the upcoming criminal trial of former President Donald Trump on the Classified Documents charges. Judge Eileen Cannon issued an order for the trial to begin on August fourteenth. What are the chances it will actually start.
On that day, Well, it's unlikely that it will start that day. Typically, judges will set a date that is within what's called the Speedy Trial Act, and that means that once a defendant is indicted, the defendant has a right to a trial within seventy days. In other words, the Department of Justice and the federal prosecutors have to be ready to go once they pull the trigger on
an indictment. They can indicted, defend it and then say, oh, we need a year a year and a half to continue to investigate this case before we're ready to go to trial. So the Speedy Trial Act is there to protect defendants right to a speedy trial in the event they want the government to go to trial as soon as possible. But what happens typically and what's undoubtedly going to happen in this case, is that the defense does not want a speedy trial, and the defense wants to
delay and draw out the trial. And in this case, there's an ample number of issues that I think we're going to see that will result in a delay of that trial date, perhaps months, perhaps even longer before this case actually.
Goes to trial.
So the special counsel Jack Smith, appears to be trying to keep to a speedy trial schedule. He started turning over evidence to Trump's legal team, including grand jury testimony of witnesses. How much more complicated is this case because of the classified documents?
The fact that there's classified documents in this case does make it more complicated than the vast majority of cases that go to trial in federal court, and for starters, there's going to be delayed built into this trial because although the government is beginning to turn over evidence as
it has to in discovery to the Defense Council. The defense lawyers here have to obtain security clearance in order to look at much of this classified evidence, which means they have to undergo a background check, a process to obtain clearances in order to look at these documents. And that's a slow process that easily can take months before the defense lawyers can even begin to look at the
classified documents that are evidenced in this trial. So that's one reason this case is going to be delayed second reason it's going to be delayed further is also related to the classified evidence that's at the heart of this case, because there's going to be, in parallel to what we see in open court the public proceedings, there's going to be a secret litigation that goes on in this case where the defense lawyers, the prosecutors, and the judge, out
of the public view, are going to discuss how the classified documents are going to be handled a trial. That's going to be something that's handled under what's called the Classified Information Procedures Act, and that is an act which controls how classified information may be given out into the general public, and that's going to be an ongoing negotiation with prosecutors, with the defense counsel, and with the judge.
And ultimately, if prosecutors are unhappy with any of the rulings that Judge Canon may hand down in connection with these classified documents, they have the right to appeal that immediately to the US Court of Appeals for the Eleventh Circuit in Atlanta. So if they decide that they want to appeal one of these rulings, they have the right to do it. But that's going to delay the trial even further.
Bob. Why do the defense attorneys have to examine all these documents? Why isn't it enough to know that they're MAREK classified mark top secret? I mean, why do they have to go into what's in them?
Well, it's just it's the bedrock principle of our judicial system that if the government is going to rely on documents, the defense has a chance to look at them. Now, the government is going to argue, no doubt to the trial judge that those documents can be redacted, so essentially certain classified portions of them can be blocked out because they're going to make the very argument that you just alluded to which is to say, there's enough information in
these documents to prove that they're classified. We don't necessarily have to show every detail in open court. But on the other hand, in order to make this a compelling case, prosecutors are going to want the public to know and specifically the jury to know the general type of information that they are alleging was maintained at former presidents Trump's club at Mara a Lago, and they are already alluded to, generally the type of information that is very sensitive to
national security. They've alluded to documents that had to do with Iran, They've alluded to documents that had to do with some of our chief allies in the world, and they be alluded to documents that have to do with steps that the US military would take in the event
of an attack from somebody outside the country. So this is the kind of stuff that's very important to the prosecution because they have to show jurors that not only did former President Trump willfully violate the law with regard to this classified information, but they also have to convince
them why it matters. They have to show them that not only was this information something that he should not have taken out of the White House, that he should have returned when the government asked that he return it, but by not doing so, he placed the national security of the country at risk at risk.
What other kinds of motions do you think we'll see, selective prosecution, prosecutorial misconduct, anything like that.
Yeah, We're going to see an array of motions coming from the defense, and these are pre trial motions, so these are motions that the judge will have to decide before the trial even began. And we can expect to see some type of motions regarding alleged prosecutoral misconduct where they're going to say prosecutors acted improperly in front of the Grand jurian some way. We're going to certainly see an argument that performer President Trump is the victim of
what's called selective prosecution. That essentially is an argument that I'm being prosecuted for conduct that others who committed the very same conduct are not being prosecuted for. This is going to be raised, most likely in connection with the failure of the Department of Justice to prosecute former Secretary of State Hillary Clinton when she had classified information found on a server in her home. That's something that will
be raised. It's unlikely, frankly, to succeed. Generally, in order to prevail on a selective prosecution argument, you have to show that you are being singled out for some kind of improper reason. Typically it's because of your race, or your religion, or some kind of protected class, but it
will certainly be raised by the defense. I think one of the issues that will be raised that perhaps has the most likelihood of gaining some kind of traction has to do with a motion that the government made before this case was ever indicted, in front of a judge in the District of Columbia to get documents and to get keep recordings made by one of former President's arms prior lawyers. Typically, conversations between a defendant and their lawyer
are covered by the attorney client privilege. That that's so that defense lawyers and their clients can discuss their case freely and not fear that those conversations will ultimately be
used against a defendant. But there's something called the crime fraud exception, which is something that allows prosecutors to get at those very conversations if they can convince a judge that those conversations were not about defending past conduct but perpetrating a future crime, and they were successful in convincing the district court judge that that is exactly what happening.
And so those tapes and those conversations were turned over to prosecutors and now form one of the critical basies for the obstruction charge in the indictment against former President Trump.
So I think we're going to see that issue raised again, and the judge in Florida will have a chance to look at that issue and make her own decision about whether or not the crime fraud exception was appropriate and whether prosecutor should have gotten access to those conversations between former President Trump and his former attorney.
So, former President Trump gave a lengthy interview with Fox that was broadcast on Monday, and he suggested that he'd been too busy and that he wanted to be sure he retrieved his personal belongings before complying with the federal government's repeated demands and even a subpoena. He said these boxes were interspersed with all sorts of things, golf shirts, clothing, pants, shoes. Isn't he making an admission that he deliberately kept the papers from the government, Well.
It's a little hard to understand exactly what the defense that former President Trump was trying to assert during that interview, And it's hard to believe that his lawyers agreed for him to go on and make those statements, because typically, as a defense lawyer, you do not want your client making public statements about the case because prosecutors are watching those statements and all of that can be used against
your client at a trial down the road. So it's likely that the decision to appear at that interview was not something that was sanctioned or encouraged by former President Trump's lawyers. On the other hand, we are going to see this case played out on two fronts, inside the courtroom and also in the court of public opinion. And former President Trump was no doubt playing to the court
of public opinion. He knows that people are watching this case very carefully and they are listening to every statement he makes regarding his conduct. And of course he has attacked both the special counsel and the indictment as being politically motivated, and I think those interviews are just a further attempt to try to delegitimize both the prosecutor and
the prosecution itself. To the extent that he ultimately reaches individuals who might find their way into a jury pool for this case, that could ultimately be a successful defense in the sense that his lawyers may ultimately convince even one juror not to convict on the basis of jury nullification.
In other words, if a jury is convinced that, even if everything the prosecution says is true, this is a case that never should have been brought, they may vote against the conviction even though the government may have proven their case beyond a reasonable doubt.
Yeah, because he continued to insist that he had every right to have those boxes and that he declassified everything that he had. And I don't think that his defense lawyers have ever used any of those in a courtroom. So do you think that they might still bring it up a try I'll and just try to throw everything out there.
Well, you know, one of the big questions for this trial is going to be whether or not former President
Trump takes the stand in his own defense. If he does, he certainly will be cross examined by prosecutors as to all of these public statements, and I think it's going to be difficult for him to defend his position and so I think what he's doing is trying to sway public opinion and trying to appeal to the jury pool in South Florida specifically in the hopes that he may convince one or more jurors that this prosecution should never have been brought in the first place, and that's going
to make it much more difficult for prosecutors to ultimately get a conviction here. I do think that some of the statements that form President Trump has made publicly and in interviews after his indictment may ultimately be damaging to his case said trial, because remember, this is not a case about which documents former President Trump took with him
from the White House. Prosecutors are going to instead focus the jury on the quest of what former President Trump did after prosecutors and after the government demanded the return
of those documents. And that's really something that I think is different than the question of whether it's classified or not classified, because regardless of whether it's classified or not, if federal prosecutors issue a subpoena and demand that you return every document that has the classified label affixed to it, you have to return it, regardless of ultimately whether that information was classified.
Or not.
And so I think former President Trump is trying to convince the public that he did nothing wrong, that he was entitled to keep these documents. The battle lines will be drawn when prosecutors try to refocus the jury not on the question of whether this information was classified or not, not on the question so much as to whether or not President Trump was even committed a crime by removing those documents from the White House in the first place, but whether or not once he was requested to return
those documents, he obstructed justice. He got others to lie on his behalf about those documents and whether he actively misled federal prosecutors about the fact that he continued to retain classified and national security sensitive documents at his club in mar A Lago and after a prosecutors first requested it through the National Archives, then requested it through a federal grand jury subpoena, and ultimately resorted to a search word in order to try to recover those documents.
Thanks so much for your insides, Bob. That's former federal prosecutor Robert Mens, our partner McCarter and English.
Call to me, kalt me.
Else have far as to protect dwarfs their minds men their fields of grain, but we harfoots of.
Each other, dodness will lot of facius.
It would be easy and not just as all people.
The sequel The Lord of the Rings, The Rings of Power brought back the Middle Earth of fantasy novelist J. R. R. Tolkien, with its elves, dwarfs, harfoots, and humans to Amazon viewers. It was the most expensive television show ever made, with close to a half a billion dollar budget. But it's now the subject of dueling lawsuits. Joining me to untangled the lawsuits is intellectual property litigator Terence Ross, a partner
at catin Yuchen Rosenman. So Terry. This started, and it's sort of amazing to me, But it started with a writer, Demetrius Polychron, suing the Tolkien Estate and Amazon for their production of the Rings of Power, saying they had infringed his sequel to Lord of the Rings, called The Fellowship of the King.
He filed a lawsuit back in April of this year after a period of time in which he was exchanging correspondence with the TOLKIENA State and apparently didn't like what he was hearing back from the TOLKIENA State, so he went out and filed his own lawsuit, and a couple months later, after additional attempts on the part of the Tolkiena State to settle the matter, they filed on June first, a copyright lawsuit in the same court against mister Polychrome.
Tolkien's estate says it has a policy of not licensing writers to create sequels, so it refused permission. Where does that policy stand in this dispute?
So to understand the dispute, you have to understand that the Copyright Act gives authors of work multiple rights. So it's not just the right to sell their book or to display their artwork to the public, or to broadcast their music. It includes the right to derivative works. And derivative works are works that follow on the original work.
So Star Trek was followed by Star Trek the Next Generation, and Star Trek the Next Generation would be considered and was a derivative work of the original Star Trek, not to send characters, but sort of the same universe in setting that was used by the original Star Trek. And so the author of Star Trek, Gene ron Berry, had the exclusive right to prepare such a derivative work, and no one could come along and do that if you want to call it a sequel without his permission. So
that's where we are here. JR. R. Tolkien's trilogy of Fellowship of the Rings gave him an exclusive right to prepare derivative works, which would certainly include any sequel to the Fellowship of the Rings. And apparently that's exactly what the work issue here is a sequel.
The Tolkien estate alleges that Pollichron used a lot of copyrighted protected elements, such as fifteen poems or other passages, copied verbatim, hundreds of the original characters, and recycling of the entire plot premise of the trilogy. So it sounds like the estate has a good case. What would be the writer's defense here.
I'm not sure what the defense of the writer would be. I think the Tolkien state has an excellent case, and may be it excellent in part by the communications from mister Polychron to the estate in the years leading up to litiation. He has repeatedly said that this was a sequel and that it was intended to here as closely as possible to the Fellowship of the Ring and to use similar characters and settings so that readers and fans of Fellowship of the Rings would recognize it and believe it.
He at one point referred to it as a loving homage to Professor Tolkien. So he has said a lot of things that sort of undermine any of the usual defenses such is fair use. At one level, you could think of his work as a theme of good trying thing over evil, and at the most general, at the broadest possible level, that's what there are Tolkien's Fellowship the Rings.
It's not good trying thing over evil, and certainly no one can copyright that a theme that has come down through history and simply can't be monopolized by anyone writer. The problem is this work was set in the exact same fictional universe of Middle Earth that Lord of the Rings was set in. It used a very similar plot, a fellowship of hobbits and humans who come together, form friendships, go on a quest, and then overcome evil, which is
strikingly similar to the Fellowship of the Rings. It's gotten lots of the same scenes and settings. The key character in this new work by mister Polypromp is sam wise Ganji, who was the companion of Rono during the Fellowship of the Rings. He's taking the exact same character, set it in exact same place, the shire, and uses many of the same places on the journey Rivendelle the Prancing Pony
in all these places reappear. And on top of that, there are numerous passages that are just taken verbatim from Tolkien's.
Work, And it's sort of stunning that he had enough nerve to sue Amazon for the Rings of Power series for stealing his plot lines and characters from his book.
Now, the stunning thing about it is that the lead defendant in that lawsuit is Jeff Bee's hope it just happens to own the Amazon Studios. I mean, it's exactly the sort of overreach that you see with lawsuits that have limited validity. I mean, names profession Tolkien's grandson merely because he's the executor of the Tolkien estate. I mean, this is just inappropriate in many ways. And the ask in that lawsuit is two hundred and fifty million dollars.
Two hundred and fifty million dollars. This is just extraordinary. The foots by the fellow, that's the word.
So the trust said that he plans to release up to six additional books, all based on Tolkien's characters. They're demanding that his books be taken off the shelves of stores. Would a court go that far?
Oh? Absolutely, But first, they're not being sold on the shelves of any bookstores. They're being sold by him online. This is a self published work, which probably tells you something about it right off for that, and the lawsuit by the Tolkien estate goes to great length to point out how bad the writing is compared to Professor Tolkien's writing.
So what the lawsuit wants is to have the court enter an injunction stopping him from any future sales by himself online, as well as stopping any future works, all on the basis that these are derivative works and the Keen of State has the exclusive right to prepare directive works.
And Jerry, we've seen these fan fiction lawsuits before, so.
Dun you know. We've seen this sort of fan fiction before with the Bridgerton lawsuit that was filed last summer against these two young ladies in New York who had prepared a Bridgerton the Musical using the same characters, of the same settings, but adding music to the Netflix original series.
That lawsuit was debbled within months of coming out. But fan fiction is this notion that people who are so wrapped up in a fictional work, whether it be a literary work such as here with the Fellowship of the Races in that case the television series, certain fans get so wrapped up and have some talent that they start preparing works that feed off of the original, and they always portray it, just as mister polychron has here as
sort of homage to the original. And the problem, as we've discussed before, is that, yes, for the most part, authors and the owners of intellectual property in that case Netflix once word of mouth. They want their theories, their books, their movies, They want them talked up, they want them to have a buzz about them. They want a really positive vibe. And that's done by sort of sub rosa
encouraging bands to do things like that. It's always drawing a line, though what constant is going too far, And in the bridget In case, preparing a musical full body of musical and putting it on at Kennedy Center here in DC was just too much and Netflix had to bring them a suit to stop that. Here, the Tolkien universe has never needed that sort of fan buzz word of mouth. This series came out in fifty four and was instantaneously best sellers and became iconic. I mean we
all had to read them in high school. I mean because they were considered more than just science fiction. They were considered works of literary art that needed to study. And there have been so many academic pieces rated on this. And then the movies came out two thousand and three, I believe, which just took them to new heights. So there was never any need on the part of the owners of the intellectual property and fashion theories to have fan fiction. They had all the buzz they needed. They
had a really great five beyond buzz. I mean, these are considered some of the greatest novels in English history by academics whose you know what they're talking about, and so you just didn't need it. And that's why they've never encouraged the store of fan fiction and tried to shut this guy down as soon as he poked his head up unsuccessfully and now finally had to take the last step of final lawsuits to shut him down.
Well, we'll see how long it takes. Do is that all this one? Thanks Cherry. That's Terrence Ross of Catain Euchen Rosenman, and that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, slash podcast Slash Law, And remember to tune into The Bloomberg Law Show every weeknight at ten pm
Wall Street Time. I'm June Grosso and you're listening to Bloomberg