This is Bloomberg Law with June Brusso from Bloomberg Radio.
We have a trumpeting judge. We have a judge who shouldn't be on this case. He's totally conflicted. But this is a trial that should never happen. We think we have a very conflicted, highly conflicted judge. You shouldn't be on the case. And he's rushing this trial and he's doing as much as he can for the Democrats. This is a Biden inspired witch hunt. It's a political witch hunt. It continues, it continues forever, and we're not going to be given a fair trial. It's a very very Saturday.
Donald Trump states his grievance is about the hush money trial outside the Manhattan Criminal Court every day before trial and after trial. His complaints are basically the same, particularly about the trial Judge one Marshawn Jump has made motions to get the judge to recuse himself twice to no avail, and Judge Marshawn is moving things along to Trump's apparent dismay.
On day two, seven jurors were sworn in. They are an information technology worker, an English teacher and on collogy nurse, a sales professional, a software engineer, and in a bit of a surprise, two lawyers. The trial is not in session on Wednesday, so voadir or jury selection will resume tomorrow. Five more jurors and six alternates must be selected before opening statements can begin. Joining me is Bloomberg Legal reporter
Patricia Hurtado, who is covering the trial. Patty, I know that hordes of reporters have descended on the courthouse set the scene for us.
There have been several hundred reporters that have come down to the courthouse in Lower Manhattan. At least there's not the anarchy we've had for Trump's arraignment last April. It's much more contained. Security is tight, but it's not like the staalanth or a wall of Secret Service agents guarding Trump. It's been very quiet and contained. Members of the media with a media lawyer's coalition went to the court people
to get it arranged. So you do have to go through two TSA like screenings, and several hundred reporters are there. Some celebrity journalists and celebrity lawyers are there, including Kelly and Conway's ex husband George Conway has been spotted in the overflow courtroom access the Trump is limited because right now we're in jury selections, so the room in the
courtroom can seed about one hundred. They basically put in ninety six people of prospective jurors, so only six pool reporters have been allowed in the actual courtroom with Donald Trump.
The judge started with close to one hundred jurors on the first day, and half of them were dismissed. Just explain that process of.
Forty two questions questionnaire they have to answer, and right off the bat, the judge says, you know, please let us know you know about this case and you'd be fair and impartial.
So normally, when duris say they think they can't be fair and impartial, the judge just a little more questioning, but in this first round he just let them go.
The judge basically was had ruled the defense wanted them all to be explored, like, let's hear what everyone has to say why they don't want to be on this case, right, and the judge decided that was going to be a waste of time. If people were being honest enough to say they couldn't be fair, that it would have to
leave them and take them at face value. Trump's lawyers on Monday made an argument that they wanted to hear and they made emotion over the weekend that they wanted to hear everything everyone had to say, possibly to drag out the proceedings right, and the prosecutors basically accused the defense and Trump's team of just trying to collect evidence so they could have appeal issues.
Before the questioning of the individual perspective jurors begins, the lawyers make introductory statements. Did anything strike you about those statements?
Yes, And one of the things I was really struck with is one of the prosecutors is a long time state rackets prosecutor works in the Manhattan DA's office. His name is Josh Steinlass. He's really good, and he gave what was pretty amazing feel that was like an opening argument, and he said something along the lines of, let's all admit this. This is a trial. This extraordinary. The defendant is a former president of the United States, current candidate
running for re election. Some of you may not have heard about this case and want to run out of the courtroom. Let's talk about basically the elephant in the room. And it was extraordinary. Many many opening statement he said this is case has all these unusual l You have a foreign president of the United States running for reelection, presumptive Republican nominee in a case involves testimony of an adult film actress and a lawyer who worked for Trump
who has pled guilty. Will let's all admit that that this is extraordinary, and then went into but let's explore this, putting that aside. Do you have opinions negative about this or positive? It was pretty unusual, and I thought it was a really good window into what the prosecution is going.
To be like what was the basic tenor of the defense statement?
The defense statement was done by Todd Blanche and he basically wanted to explore, you know, do people have animates to Trump? And what do you think of Donald Trump?
Do you like him?
Do you really like him? Do you really really like him? Or do you really dislike him? And it was all on do you like him or not like him? And we had a very unusual person who was eventually struck last night. He's a resident of Harlem. He was friends with some of the Central Park five descendants and said that he knew their cousins too, and that he knew Donald Trump had taken out an ad some thirty years ago.
And if people remember what Donald Trump did in the nineteen eighty I guess right around the time of the
nineteen eighty nine attack of the jogger. So this was a case where five young black and Latino used were charged with raping and brutally assaulting a white woman jogger in Central Park, and they were arrested and convicted by the Manhattan District Attorney's office, and then they were eventually that same DA Robert Morgenthal in two thousand and two said they were wrongfully convicted after a nine month investigation
and they cleared them of all wrongdoing. But these kids had been in prisoned, and one of them is now a city councilman, he said belong So Trump at the time took out a full page ad in many newspapers, including my old newspaper of Newsday, basically saying that this was an example of how they should reinstate the death penalty. And this guy remembered and he started saying, you know, well, Trump walks into a room and people pay attention. And he also said he didn't read the newspapers because he
didn't believe them. So eventually guests who struck him the prosecution, yep, because it sounded like he might be a guy that made believe in conspiracies and also didn't want any information. Plus, if he knew that, you know, if the DA's office had wrongfully convicted his friends and acquaintances, he may not feel too kindly to the DA.
On Day one, in the afternoon, when it seemed to be moving at a glacial pace, there are reports that Trump sort of dozed off.
I was in the overflow courtroom, and I did not see that, but I did see him close his eyes and lean lifting a little bit. Now, my father used to do that when he was elderly, and sometimes he was asleep. I don't know that I would say that definitively that he was asleep. I also saw at one moment where Trump was leaning over talking to Todd Blanche, and he kept talking while Blanch was trying to talk, and Blanche put his hand up like okay, you know,
which is kind of extraordinary. But Trump was trying to get his ear when Plant was trying to make an argument or talk to the prosecutor. So that's not something you see every day, but so.
Did Trump's lawyers really dig into the social media posts of prospective jurorsm I mean going back years.
Yes.
In fact, there was one woman who was struck. There were postings of people celebrating when Joe Biden got elected, and she said that she felt it was akin to when people celebrated during COVID. Remember when we all went out for our stoops and our fire escapes and banged on pans to support the healthcare workers. That's what she said that this was akin to. It was a celebratory moment and it was just New York, you know, having its day. But she did say she was driving around, honking,
spreading the cheer. So the judge interviewed her and asked further questions and then decided that she wasn't necessarily being as forthcoming as she should have been. So when she said, oh, I don't have an opinion about Trump, the judge felt that that showed that she had an animus towards Trump. Another woman that the Defense struck was an older woman who's had an image of Obama and Trump standing together.
This was a Facebook post from back in twenty seventeen, and it said, this isn't what I thought when they said orange is the new black with Obama and Trump, and then it turned out that was her husband's social media post, but she had reposted it. So Da was arguing, there are lots of these things that the defense was trolling back in time and trying to go through everyone's social media account.
Judge Marshawn experienced judge known for being no nonsense, even tempered, but even he shouted at Trump on day two.
He was angry because they called this young woman in about the banging of the pants and the celebratory moment, right, and they called her back. And if you can imagine, this poor young woman is getting brought in and has to stand at the podium. She was twelve feet away from Trump, and she started answering the questions, and apparently Trump was muttering under his breast and gesticulating, and the
judge heard it and called out Trump on it. And he told a Blanche that he had a controllers client and he said he would not tolerate any durors to be intimidated. So that's Trump being reprimanded by the judge and war.
Coming up next on the Bloomberg Long Show, I'll continue this conversation with Bloomberg legal reporter Patricia Hurtado, just, how did two lawyers get on the jury. I'm Jim Grosso and you're listening to Bloomberg. Donald Trump has pleaded not guilty to thirty four felony counts of falsifying business records as part of an alleged effort to keep salacious, and he says bogus stories about his sex life from emerging during his twenty sixteen campaign. The Manhattan trial is being
referred to as the hush Money Trial. The first seven jurors were sworn in on Tuesday after lawyers grilled the jury pool about their social media posts, political views, and personal lives. There's already been one sort of dust up in the court as judge when Marshawn admonished Trump after he spoke loudly and gestured while the judge was questioning
a woman about a social media post. Marshan said, I don't know what he was uttering, but it was audible and he was gesturing, and he was speaking in the direction of the juror. I won't tolerate that. I will
not tolerate any jurors being intimidated in this courtroom. For his part, Trump has complained about the judge every day, accusing him of being biased and rushing the trial, especially not allowing Trump to miss court one day next week so he can travel to DC for the Supreme Court oral argument on the question of his presidential immunity.
Allow us to go.
To that and will follow me to leave here for half a day, go to DC and go for in the United States Supreme Court. Because he makes you superior. I guess that the Supreme Court.
I've been talking to Bloomberg Legal reporter Patricia Hurtado, who's covering the trial. Pat did some jurors just refuse to give their opinion of Trump?
I wouldn't say that. I would say that. People would say, I don't have an opinion. That's a difference, right. You know, there were people who said, I don't have an opinion. I don't think any negative things. I just don't have an opinion. I don't think about him. And that might be disappointing that Trump that people just don't think about him. You know, one juror, potential juror, said, I know our country is a huge's resting right now on this. What's going to happen?
Jury selections seemed to be going so slowly, even Tuesday morning, with the judge just before lunch break expressing some frustration that it was taking too long. Then bam, jurors were selected one, two, three in the afternoon. What happened to speed it up?
Everybody is expecting jury selection to be like in federal court. State court is very deliberative. It's really slow and plotting. I covered Harvey Weinstein's trial. It took ten days to pick a jury. So that's the kind of thing that
is very typical. The lawyers that ask questions, they explore, the judge limited statements to half an hour for each side, and then what happened is, if you can imagine, so there were ninety six potential jurors brought in, fifty excused themselves, leaving us with forty six, and then they put eighteen in the box and they started asking them in the jury box what they thought. So that's what took a long time, because the individual jurors had to answer, have
you ever followed any q Andon movements? Do you have any stronger opinions or beliefs about the former president? Do you believe he shouldn't be criminally charged? You know, forty two questions each person. So that's what was taking a long time. And then what ended up happening is after all those people were vetted, Trump couldn't put off the inevitable and couldn't delay it any longer, and they asked
for more time. Trump's team asked for more time, and then they got a lunch break, and then they came back. But they had to exercise peremptory challenges and ask them some challenge for cause.
I just want to explain there are two kinds of challenges to a juror, for cause and peremptory. And for cause is what it sounds like, the attorney has what he or she thinks is a legitimate reason to excuse the juror. However, the judge has to agree. The other kind of challenge is peremptory, and that is for any reason except for reasons of race, sex, and the like.
In this case, the prosecution and defense each have ten peremptory challenges, and so far they've each used six, leaving them with four peremptory challenges for the selection of five more jurors and six alternates. So Patty, after this first group of jurors, they brought in a second group.
They brought in a second group of ninety six, and now they're going through those people, which they're going to have to get. They have seven feet a juror, and they have to get five more to fill the box, and then they have to get at least six alternatives.
Not one, but two lawyers were seeded. And usually neither side wants lawyers on the jury because they can insert their own legal opinions and the juror is my turn to them for that. Is there anything you remember about the questioning of the two lawyers.
Well, both of them seem to do either business law or civil litigation. I definitely know jural number seven is a white man, a civil litigator who doesn't know anything about criminal law. I don't know anything about election finance. To the degree that I know, I can put it aside. Do you think you should hold Trump to a higher standard? Answer?
No.
What are your thoughts on Trump? Answer ambivalent? Some of the things I like, some of the things I don't. I'm not sure if I have any opinions about his character. I'm not sure I know anything about it. I'm a litigator, so I take a law seriously, and I will take the judges instruction seriously. Another juror, who is number three, apparently a young Asian male, says, I'm not actually super familiar with these charges or the other charges. I don't
really follow the use that closely. I'm a little embarrassing to stay he won. Duror, a middle aged man, said he's during number four quote. I find him fascinating and mysterious. He walks into a room and sets people off. He's an IT consultant.
So the judge had set off two weeks for jury selection. Now he asked the first seven jurors to report to court as soon as Monday. Does that mean that there could be opening statements on Monday?
That's up in the air. He told the people that were sworn in as jurors to keep in touch and they could come back Monday for opening depending on how things go tomorrow and Friday. But if we all member, Monday is the first day of passover and one of the members of the defense team is observant, so that might mean either a shortened day or if someone on the panel is observant, then it would be no trial
on Monday. So all of it's up in the air. Yes, opening statements could happen on Monday, but it's really unclear. We have to wait and see what transpires tomorrow and Friday.
So now let's talk about some of the motions before jury selection started. So prosecutors asked the judge to find Trump three thousand dollars for three social media posts.
That was the first thing that the prosecution did on Monday, which is one of the reasons why jury selection was so slow the entire morning session. Instead of picking the jury with all on pre trial motions and asking for clarification from Judge Mershaan on his prior ruling like, for example, should be access, Ali would say can it be played
or can at least be quoted from? So what they prosecution asked for is they felt that recent postings by Donald Trump, including over the weekend, were in violation of the judge's gag orders from April first, and they're asking for Trump to be sanctioned for the three posting and
to be found in contempt of court. They also cited one that posting that apparently the prosecutor said had been posted from the courthouse Monday as a fourth example, but they weren't including that in their hopper of you know in their basket of misbehavior by Trump, and they want him to be fined one thousand dollars for each of the three earlier social media postings. And they also wanted Trump to be warned that if he continues to violate
this gag order that he could be jailed. So the judge is going to have a hearing and schedule that for Tuesday.
The prosecutor in his statement to the jury said that some witnesses have some edge, and he described them as a tabloid publisher at adult film star in Trump's former lawyer, Michael Cohen was convicted of federal crimes. Michael Cohen is going to be the star witness, and there have been arguments about his testimony already.
There were discussions about how much they can the limiting of the defense and how much they can go after him. The judge basically said that it's fair game to raise the arguments about his guilty please, but he didn't want to make it a mini trial of the federal case against Michael Cohen and make it like Michael Cohen's trial
rather than Donald Trump's trial. So they can raise the background issue of Michael Cohen pleading guilty but they can't have a mini trial by the defense to basically reopen and relitigate what Michael Cohen played guilty in federal court.
Trump wanted to be off to campaign in quotes on Wednesdays, and he also wanted to be excused next week so he could attend the arguments before the Supreme Court on his presidential immunities.
The judge was very stirred with him about that because his obligation, he said, is you have an obligation in this court, not that court, and you're on trial here. I mean, it was almost like he said, you don't belong in that Supreme Court. You belong in Manhattan Supreme Court where you're on trial. And he wasn't going to excuse him. He also wanted what was complaining and asked Todd blanche, Trump's lead defense lawyer, that his son is
graduating from school. I believe he had a graduation to attend to, and so does mister Trump for Baron Trump, And the judge said, well, we'll cross that bridge. Will we get to it, but that's in me. One of the funnier USA that happened during jury selection. One of the potential jurors was a woman who said her friend was getting married in September and if she was picked
for the jury, would that be a problem. Everyone roared with laughter, and the judge said, if this trial is still going on in September, we'll all have a problem.
Basically, at least he can still show a sense of humor in the face of all this. It's going to be interesting to see whether they can finish the jury selection this week and get started sometime next week. Thanks so much, pat That's Patricia Hurtado, Bloomberg Legal reporter. Coming up next on the Bloomberg Lawn Show, We're going to be talking about a controversial spy law that the House has reauthorized. Will the Senate do the same? I'm June Gross.
When you're listening to Bloomberg on this vote, the ya's are two seventy three, the na's are one forty seven. It's in the hands of the Senate now. The House of Representatives voted to reauthorize a key part of the Foreign Intelligence Serve Valence Act on Friday. The measure allows the federal government to eavesdrop without a warrant on foreigners in overseas investigations. The FBI Director warned of dire consequences
if it's not renewed. But its critics were an unusual mix of right wing Republicans and Democrats focused on civil liberties, both concerned that it sweeps up the data of Americans. Here's Republican Representative Jim Jordan of Ohio and Democratic Representative Jerry Nadler of New York.
If they don't follow the exceptions, and they're searching Americans, searching your name, your phone number, your email, addressing this giant database, that's it's scarce. And if it's a small number, then what's the big deal.
Officials are supposed to find it reasonably likely that a query will turn up evidence of a crime or foreign intelligence information, but that did not stop them from searching for protesters, politicians, and political donors, to name a few without proper credicate.
Joining me is Matthew Waxman, a professor at Columbia Law School and former senior official at the State Department, the Department of Defense, and the National Security Council. Tell us about section seven oh two.
Sure, so the main FISA statue, the Foreign Intelligence Surveillance Act, goes back to the late nineteen seventies. But we're talking here about Section seven oh two, which was part of a major modernization of that statue in the two thousands, and what it allows the government to do is to collect, on US soil and with various oversight checks, the electronic communications of targeted foreigners abroad, even when those targeted foreigners
are communicating with Americans. And so to do so, the law authorizes the government to order service providers I think telecom company or Google to hand over copies of messages or calls to or from those targeted foreigners abroad.
And is the controversial part of this bill, the part where in circumstances where Americans are in contact with a foreign surveillance target, it sweeps up the data of Americans. So why it's controversial, that's right.
So the statute itself authorizes the government to target foreigners abroad, but some of those calls or emails from those targeted foreigners abroad are going to be with Americans or people here in the United States, and those communications that get swept up are often referred to as incidental collection, the idea being that the Americans are not the ones being targeted foreigners abroad, but oftentimes there are going to be some communications with Americans that are collected as well, and
the biggest controversy is about the FBI's access to those incidentally collected communications with Americans.
It sort of was an unlikely coalition of lawmakers far right wing of the Republican Party and Democrats focused on civil liberties who were trying to change the law, a major change. They wanted to have a warrant requirement.
As you say, there's a coalition of some strange bedfellows who are pushing in Congress for a major reform to Section seven zero two, I say a coalition of strange bedfellows in that it was members from both the far right and the far left. For so long, debates about ISSA in Congress were usually between what I might call the civil libertarian left and the more hawkish right, as
well as a lot of members in the center. But we've seen the politics of surveillance really shift, and to the question of what kind of reform the advocates were pushing for, I think the most controversial one was to add a warrant requirement. The idea being that every time the FBI might want to go into that set of incidentally collected communications with Americans in order to the word is query that database to look for certain communications within
that previously collected set the government. The FBI would need to go to a court for a warrant and make a certain showing in order to then get court permission to do that specific query.
And is getting a warrant so burdensome for the FBI.
I think some reforms were necessary because there were some problems with how the FBI was using the Section seven zero two data. But I think a warrant requirement would have gone or would go too far. I think that for a couple of reasons. First, we're not talking about authorizing surveillance here. The surveillance has already been authorized and done. And what we're talking about here is the ability of the FBI, under certain narrow circumstances to look at that
information that's already in the government's files. In addition, the FBI has already adopted a number of reforms itself since some of the problems with seven zho two were exposed. But beyond that, I think a warrant requirement would go too far. You warrants are by design very burdensome and can take time, whereas national security threats move quickly, especially
in cyberspace. And we're also when it comes to foreign intelligence or national security, we're often talking about trying to piece together information intelligence in order to determine whether, for example, an individual, there's probable cause to believe that an individual
is engaged in certain types of nefarious conduct. And the last point I would just say on this is many of the FBI's queries of the seven zero two database are related to cybersecurity, especially combating foreign threats like ransomware gangs or foreign government agencies that are engaged in in fiber attacks, and the FBI needs to move quickly. It may need to run a lot of queries in order to combat those attacks that weren't.
Requirement didn't pass in the House. It was a tie vote, but section seven oh two did.
That's right. So the House has reauthorized Section seven oh two with a few reforms, not the big controversial one, which was the warrant requirement, but with some reforms, and the House reauthorized the basic seven oh two authority for two years. The cycle had been every five years, but as a compromise in the House, it was just a two year reauthorization. Now the action switches to the Senate to see whether the Senate will pass an identical or
very similar bill. My best guess is that the Senate will maybe even just pass the House's bill and will be in a situation where this gets wrapped up quickly and sent on to the President for signature.
So Senator Ron Wyden, a Democrat from Oregon, said this bill represents one of the most dramatic and terrifying expansions of government surveillance authority in history. I'll do everything in my power to stop it from passing in the Senate.
I think that's a gross exaggeration. I think we are talking about a very powerful intelligence tool. But because it's so powerful, there were from the beginning a number of checks that were built into the system. Those checks have been improved over time for good reason. I mean, look, the FBI was sloppy with this tool. Reforms were necessary, but a lot of those reforms were already taken within
the executive branch. These were things like reducing which FBI officials have access to the database, a stronger reporting requirements, stronger penalty for violating those rules. These were sensible reforms and needed reforms. And the House bill and what I think will likely pass. The Senate will codify and law
some of these reforms. I think the warrant requirement goes too far, and I think Senator Widen is underplaying the intelligence imperative behind this tool and exaggerating the dangers of it.
Can I ask you? There was a letter to House and Senate leaders where the Department of Justice confirmed that the Administration on March fifth submitted certifications to the PFISA Court that, if approved, would authorize Section seven O two until April of twenty twenty five.
So one of the questions throughout this reauthorization process is exactly when is the true deadline? When does the program actually cease to work? And there's been some shifting in that timeline as the Executive Branch, in anticipation of possible expiration of the statutory authority, has looked at what are some orders that we could speak from the Foreign Intelligence Surveillance Court that would extend beyond April twenty twenty four,
when the statutory authority is set to expire. When might we'd be able to get an order that would apply beyond the statutory expiration. And there is some good reason to believe that the Executive Branch could get some orders that extend beyond the deadline next week. I think one of the problems for the executive branch is that those orders would be on much weaker legal ground, much more
susceptible to challenge without the reauthorization of the statute. So they're absolutely right to push for quick reauthorization, and Congress's right to think about at the end of this week's as the true deadline.
Let's say Congress reauthorizes it, then is that the end of it? Or is the Piza Court still going to go ahead?
So then the pis A Court would still be charged with examining the government's new requests for an order. The big difference after Congress passes this bill, as I hope they do, is the statutory authority would be extended for another two years. As I mentioned before, the previous pattern had been that the statute would be authorized for five
years before it would sunset. This would give the congressional overseers more of an opportunity to examine how effectively was the system working and how effectively were the ZECHS operation, And the original request from the executive branch was that
Congress reauthorized it for another five years. One of the compromises in the House was to keep seven zero two pretty much the same, but only extend its authorization for another two years, this time so Congress would get another bite at this within two years.
Thanks so much. That's Professor Matthew Waxman of Columbia Law School. And that's it for this edition of the Bloomberg Law Podcast. Remember you've can always get the latest legal news by subscribing and listening to the show on Apple Podcasts, Spotify, and at Bloomberg dot com, slash podcast, Slash Law. I'm June Grosso and this is Bloomberg