How the Rich Get Bail

explain how bail is usually set. Generally, especially in the federal system, there's always a hearing before a judge who assesses whether the person should be released or should be detained. In the federal courts, there's a presumption that people should be released, even though most federal defendants are actually detained before trial. But that's because they meet specific criteria that they've been charged with violent crime or they have a

violent criminal record. But basically, judges are weighing the likelihood that a person, if they're released, it's going to come back to court for trial, and whether they're going to pose any danger in the meantime to other people, or intimidating witnesses or destroying evidence and the like. So the vast majority of charged suspects in the state courts are eligible for release and are given bail, given some amount of bail, or are released without a cash bail amount.

But in the federal system, the majority are detained either because there are a flight risk and might lead the country and not sure for court, or because they're a danger to someone. We've seen two back to back nine figure bail packages for Trump allied Tom Barrack that was two million dollars and Nicola founder Trevor Milton for one

million dollars. Why do we see those huge bail amounts, So those are really unusual amount Even Alreadie made off back or fifteen years ago when pons ice Can fell apart, he was originally given a ten million dollar bail, I think, and couldn't make that because all his assets were lost or frozen by that time. So these hundred million, two

hundred million dollar day annunts are really unusual. It's just because the defendants are so wealthy that the judges, on the one hand, sure we're both of these defendants, doesn't have any concern about them committing violent crimes while they're released. But I assume what this, what this bail is trying to do is they are a risk for fleeing the country, for not showing up back in back in court, and they held a lot of money and resources and sort

of capacity to do that. So I think the judges just trying to make sure that even these defendants that are that wealthy have to put up enough money that they're unlikely to walk away from it. That this is probably a big money even for these defendants. If it was just a mere million dollars bail, right, they might be willing to walk away from that and just live somewhere where they can't be extradited back to a U. S. Court.

But I'm sure the denovation is because the defendants are so wealthy at the judges trying to make sure that this is an amount that they will that they will pay attention to. I don't know the details of their bail conditions. I feel virtually certain there are other conditions, such as they probably had to give up their passports.

There's limits on where they can travel. So the combination of the amount of money and taking their passport are tactics that are targeted to making sure that they show back up in court and don't and don't flee the country in the meantime. What I have always wondered, isn't there more security if you're worried about them jumping bail? Isn't there more security in the ankle bracelets and the

GPS monitoring? Are those pretty fool proof? They are? I have not heard of any cases actually where people have beat those. Somehow you can cut them off or somehow remove them, but then there's immediately an alarm, So you don't have a lot of time if that's your plan. But it's just not It's not unusual for judges to impose our cash bail amounts and other conditions such as taking the passport and electronic monitoring of some kind than

ankle bracelet or something else. And so for various reasons, just depending on the defendants, judges might not be willing to just trust the electronic monitoring to take a you know, the sort of worst case scenario from the judge's perspective, defendant as an ankle monitor can still flee, it's just that we'll be able to track him as he gets on the private jet and flies out of the country, and so the cash bail is a is another device to hopefully keep them in the country and showing up

for trial. So now Barrick spent three nights in jail as his bail package was being negotiated. So explain what happens before they even get into court in these cases of prominent people or people who have money, their lawyers are negotiating with the prosecutors about a bail package. Yeah, I would speculate that he was in jail for a couple of nights because the prosecutors wanted him to spend

a night or two in jail. With a defendant like Barrick, his lawyers were almost certainly talking to the Test Department before he was arrested and could have negotiated on terms that he would be immediately bailed out. I suspect the prosecutors just didn't want to do that, and so they chose the time and date for arrest, and it took a couple of days to then arrange the bail terms. But that's really at the discretion, I guess, or the

tactical choice. Maybe it's a better way to put it by the Justice Department, because I'm sure his lawyers were ready and willing and probably trying to negotiate bail conditions that he could meet immediately upon arrest and not have

to do any any time in jail. The typical defendant, of course, doesn't have a lawyer, is sort of talking to prosecutors before they're arrested or before they're charged, and so it's fairly routine for defendants to spend one night or three or four or five nights in jail, either before their bail is set or before they can make their bail. What makes it a little unusual here is because the defendants are so rich that you sort of

would expect them to be able to avoid that. Another high profile defending Trump organization, the chief financial officer, Alan Weisselberg. He was released without having to pay any bail, because it seems like in high profile cases they usually get some bail. Why would he be released without posting any

kind of bail? Yeah, that's interesting. All that I can speculate is that the charges were sufficiently different and the judge made a different assessment of his likelihood to flee, such that the judge ended up being satisfied that Weislberg would not flee if he had merely other other conditions, probably restrictions on his travel, maybe he had to give up his passport. All these decisions or just individual decisions by the judge assessing the risk that the defendant is

going to flee. Basically because all of these rich white collar defendants, the kind of risk of that they'll pose a risk of criminal violence to other people isn't really on the table, So the judges really just paying attention to whether they're going to show up or not. And I think the judge just must have found very different

circumstances in Weiselberg's case versus Barrett. And I'm wondering if the nature of the charges sometimes keeps a person in prison, because Galaine max Well put up a twenty eight and a half million dollar package and she's trying multiple times, and she's awaiting trial on sex trafficking charges connected to Jeffrey Epstein, and I wonder if sometimes it's the nature

of the charges and the amount of publicity. Yeah, it is absolutely the nature of the charges sometimes, especially in federal court where she is charged in there and a bifel Burger charge. So the federal bail statute very specifically gives judges authority to detain people in jail until their trial they without setting any amount of bail. The judges can just or entertained if they're charged with certain crimes, and those crimes are basically violent crimes, large scale drug crimes,

and child abuses or human trafficking charges. And so I feel virtually certain you're right that the basis for her being detained and not getting bailed as the nature of the child sex trafficking charges as she's that she's charged with. There's a specific provision in the federal law that allows judges to detain people who are charged with those offenses and to deny them bail. I want to turn for a moment away from the wealthy people to the average

or the poor. The vast majority of people are not making these deals with prosecutors, are they. They're just going before the judge, and the judge is setting the bail. Yeah. And even in these high profile cases like Barrett, where his lawyers are negotiating with the prosecutors, the judge still has to sign off on that. It's still the judge who issues the official bail order or or makes the official decision. It's sort of like a plea bargain for

pre trial release. The prosecutor and the defense attorney get together and negotiates some terms, and then the judge typically approves it but to ride. And with the vast majority of defendants, the ordinary defendants and poor defendants, there's almost ever any of that negotiation between the prosecutor and defense attorney before the defendant has just brought to a hearing before a judge, and the judge will get some basic

information about the defendant and about the charges. Sometimes they'll have a defense attorney at that first bail hearing, sometimes not, and the judge will make a decision often a much less information. If they can't come up with the bail. What happens when they go to a bondsman, Well, there's

a fee. So if a judge imposes cash bail of say a thousand dollars and the defendant camp doesn't have a thousand dollars to hand over to the court, which you would get back when you showed up for court, but a lot of people don't have that kind of cash sitting around, so it defended would go to a bail bondsman. A bail bondsman would typically charge ten percent, maybe a little more as a fee for the bail.

So the bail bondsman would put up a thousand dollars to the court and would charge the defendant hundred dollars for that. If the defendant doesn't show up, then the bail bondsman loses that thousand dollars he gave to the court. So the bail bondsman has a real instead of to make sure that the defendant does show up. That's where bounty hunters come in. And when the defendants show up in court, then the bail bondsman makes that hundred dollars profit.

There's been a movement to ban cash bail because of the inequities in the system. Do you agree that there are inequities in the system and the bail system between the rich and the poor. There absolutely is with cash bail.

There's lots of god a lots of studies, lots of examples of people in the New York City jails and elsewhere in other states who have relatively low bail amounts set or what would seem like relatively low bail amounts five hundred dollars, a thousand dollars, and they're too poor to make that amount and can't even pay the bail bondsman fee for the bail bondsman to make that amount, and so there's lots of defendants. I think in many jails,

it's the majority of defendants who are awaiting trial. If they're still in jail, it's because they have the bail that they can't make they don't have enough money to post or to pay bail bondsmen, rather than the fact that they're that they've been ordered to stay in jail

and don't even have the opportunity to make bail. So, yeah, there's lots of defendants who can't make even seemingly fairly low amounts of bail, and there's pretty clear evidence that that affects the outcomes of their cases when defendants are

detained in jail for even several days. Right, there's lots of definity to have family obligations or have jobs, and they work about losing their jobs or they do lose their job or put a strain on their on their families, and so that makes defend it's much more eager to plead guilty, at least if it's at the sort of low end of the scale where it's just a misdemeanor, and so the inability to make bail sort of puts

pressure on them to plea bargain. But if it's something that they're not going to plead guilty too, then they end up staying in jail for weeks or months if they can't make the bail. That's the real criticism of the cash bail system. That and the fact that there are other ways to make sure people show up to court without making them post money. Right, So, several states now have eliminated cash bail of their countries like England

don't use cash bail anymore. There are various other ways to make sure people are good risk to be released before trial and that they're going to show back up Besides cash bail, What are the ways are there to make sure that people show up. One modern technology way, right is just electronic monitoring, although that costs somebody money.

There's often a fee charge to the defendants for that electronic monitoring service, but really a lot of defendants don't need even that to show back up to court, or don't need that incentive or that or that restriction, as long as defendants have real ties to the community, if they have family and jobs, and a long history in a given community where they're arrested. The data is very clear that defendants who did that certain kind of profile are very likely to show back up the court, even

if they're charged with a fairly serious crime. Just because you might decide to not show up for trial where you think you might be convicted, doesn't mean that you're then scott free, right and you just have a warrant out for your arrest, And it's not an easy avoid

jail strategy. So just really screening defendants, and then there's really good evidence that just using mechanisms like making them check in with a probation officer and sending them reminders about when their court date is a lot of people fail a short for court just because they don't have transportation, or they just sort of lose track of their court date or just need a reminder. Are some very simple things like that, but actually improved the hudds people will

show back up for court. And in places like Washington, d C. Which hasn't imposted cash baill and people for almost thirty years, they released the defendants before trial and almost the show back up for trial. The criticism of cash bail is that for a lot of defendants who are given cash bail, that's an unnecessary condition as a safeguard to make sure that they're going to show back up. There are other, less restrictive, less costly ways to do it.

That's Professor Darryl Brown of the University of Virginia Law School. After a two year fight, the Jostice Department has directed the Treasury Department to hand over former President Donald Trump's tax returns to Congress. The decision reverses a twenty nine opinion that the Treasury Department should not release the returns.

But the fight isn't over. Joining me is William Banks, a professor at Syracuse University College of Law, tell us about the Justice Department's Office of Egal Council ruling on the Trump taxes. So the Justice Department is following up because, as many of your listeners will recall, the Supreme Court the United States ruled last summer the summer of that Trump had no legal basis for claiming either immunity or privilege as a broad based matter with regard to his

taxes in response to several subpoenas. I believe there were four broad subpoenas came from different congressional committees seeking financial information about Donald Trump, about his children and other family members, businesses, all associated with the Trump organization, and the Supreme Court repudiated the president in a broad brushed opinion, but also said that the lower courts need to analyze each subpoena carefully to the m and whether or not Congress is

properly respected the interests of the president, and whether Congress has a legitimate legislative purpose in requesting the information in pursuance of its committees or responsibilities. That took some time. Of course, lower courts rejected Trump's attempts to block the subpoenas after the Supreme Court ruling. And so here we are in the winter spring into the summer of one and the court contest was effectively over. Uh So the

committee said, give us the stuff. And now is the Justice Department's turned to weigh in and say, indeed, the information which is in the hands, of course of the Department of Treasury, should be turned over to the congressional committees. So now I doubt that the legal battle is over, because we all know the former president Trump's proclivities to litigate, So now he can try to block Treasury from turning

the materials over to Congress. What Treasury said, in a nutshell was that the committees had each demonstrated a legitimate legislative interest in the topics within the committee's authorized authority, money laundering and appropriate foreign financial relationships. Still some concern

about Russian operations influencing US political processes. And then, of course, perhaps the most important one, whether the audit policies of the United States need to be revised to take into account another president like Donald Trump, who seeks to avoid disclosing his personal stuff. So could the Treasury Department just have handed over the tax returns to the committee? The Pressury Department notified a federal judge that it reached an agreement with the House to hand over the returns. Why

couldn't they just have handed them over? You know, they could have. I think the reason for o l C, the Office of Legal Counsel, stepping in at this point is that the Trump o LC had offered an opinion in coming to the opposite conclusion that the committees had not demonstrated a legitimate legislative purpose and that the president's prerogatives came out on top. In a contest with Congress in any case, So this OLC opinion was in effect needed to I'm going to use the verb to trump

the earlier one opinion. So I think because justice was involved in justice really needed to be involved this time. The Office of Legal Council is an independent part of the Justice Department that is supposed to represent the executive branch in its dealings with the remaining parts of government. So did the welsee have to say we were wrong before they they soft pedaled that argument. It's a thirty

nine page opinion. It reads very carefully. I think Don Johnson, who's now that the acting head of OLC, was very careful not to harshly repudiate the opinion. But she said she thought that they undervalued some of the interests that were articulated by the congressional committees in seeking the information. But she also made a very important and certainly obvious point about what's different now from before. We're dealing with a former president, not a sitting president. So are we

actually going to see Donald Trump's tax returns? It certainly looks that way. Neither you nor I are likely to see that. We certainly may not as a result of these subpoenas, because once they're turned over to the House committees, there are requirements inside the House to assure the privacy and requires an affirmative vote to the committee even to share the material with other members of the House representatives, much less to make them public. That could happen, but

it would require affirmative votes in the House. Of course, there may be a leak, which the Trump lawyers usually pointed out in court arguments. In another move, the Justice Department has turned over to Congress handwritten notes of a December Trump held with Acting Attorney General Jeffrey Rosen and

Acting Deputy Attorney General Richard Donohue. The notes by Donahue showed Trump pressuring the acting Attorney General to declare that election was corrupt in his ongoing attempt to overturn the results. Why did the Justice Department turn these notes over this too? You're correct to flag this June. This was an extraordinary

development in the Justice Department. As as you and I know, and many of your listeners will know, that the Justice Department typically fights to keep secret private discussions between a president and a member of his cabinet to avoid setting a precedent that would prevent officials in the future from candidly advising presidents out of concern that the conversations might

later be made public. This time, the OLC Justice Department said that handing the notes to Congress is part of a pattern of allowing scrutiny of Mr Trump's efforts to

overturn the election. I think this was such an extraordinary series of developments between election day and in January six that they decided they had to provide unrestricted material and even testimony if those if Rosen or Donahue are so inclined, they could testify openly without restrictions to investing aids on the House Oversight and Reform and the Senate Judiciary committees, because the congressional investigators are examining wrongdoing by a sitting president,

which is an extraordinary circumstance in and of itself. Executive privilege is meant to benefit the country, not the president as an individual, so invoking it over Trump's efforts to push his personal agenda would be inappropriate. That's what they concluded. Is it unusual for a deputy Attorney general to be taking notes about a conversation with the president or is that par for the course? I think that's par for

the course. These these are handwritten notes. These are the kind of notes that any good lawyer would take in an important meeting at any time. We all do it. You want to have some kind of records so that you can memorialize the meeting, particularly if questions about it arise later on. That was good lawyer, and contemporaneous notes are considered strong evidence to support to stimony. Yes, that's correct,

if it ever comes to testimony. Right. The tone was that he was asking for them to help him overturn the election results, and they said, we can't just snap our fingers, and he said, don't expect you to do that, just say that the election was corrupt and leave the rest to me and the Republican congressman. What does this indicate, Well, it indicates that he was directly asking the Justice Department

to to come, you know, to come to back for him. Uh, in regard to overturning the election, had no basis for declaring that the election was was corrupt in some way requires you know, it requires evidence, and there was none. Uh. They had been saying that from the beginning. Even Bill Barr eventually said that. So that's why we're dealing with with Jeff Rosen instead of Bill Barr. By the middle of December, which is when leading apparently UH took place,

when the notes were taken. I don't know why I wasn't surprised by this. It seemed to be along the lines of what he'd been doing with Georgia election officials, and you know, all along the way, were you surprised by this? No, I'm fraid I wasn't surprised. By the time that we got to the middle of December, I knew that I certainly suspected that he would do everything that he could think of to try to undo what

had happened to him. You know, any other president would have stopped, would have drawn a line at the Justice Department because they're obedient to the rule of law. It's you know, it's a cabinet department like the Treasury Department and the Department of Interior, but they have a different master. Their master's law, not the President of the United States. The president can hire and fire the senior officials, which does also the Justice Department has said and is this

unusual as well? The Justice Department has said that former officials of the Just Department can provide unrestricted testimony to investigators with the House Oversight and Reform in the Senate Judiciary committees. Is that unusual as well? It is. It is quite unusual, and I think again, the the opinion of the Justice Department is that this is an extraordinary situation.

Asking a sitting president instructing the nation's top law enforcement agency to take steps to overturn a free and fair election in the final days of his presidency, It's unheard of. But it seems as if the more time that goes on, Trump is not going to be held accountable for his actions that day or for his actions in trying to overturn the election, and still saying that the election was fraudulent. Well,

I'm afraid I agree with you. I think the best that can happen now is that some laws will be enacted and regulations put into place in Justice Department to make it less likely that another president could pull similar shenanigans, because if if you look at what happened, if there weren't certain people in certain positions, like Jeffrey Rosen in his position and the Vice president his position, you know, there could have been almost a coup attempt and That's

what General Milley feared, And indeed is that at the very end there when they tried to get rid of Rosen replace him with some some guy who was familiar to Trump and promised to do Trump's bidding. If they had succeeded in forcing Rosen out, they might have even pulled that off. Thanks so much for being on the Bloomberg Laws show. Bill. That's William Banks, the professor at Syracuse University College of Law. 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 Last Law. I'm June Brosso and you're listening to ra