Manafort’s Washington Trial Pushed Back

Brad moss a partner? Mark said, So, Brad, this case is now getting attention because the DC Federal Court of Appeals is going to be ruling on the request of attorney and author Stuart McKeever to releak secret testimony given to a grand jury that investigated the disappearance of a Columbia University professor back in nineteen fifty six. Tell us

a little more about this. Yes, so, this is an interesting case in terms of something that had no intention probably of ever implicating anything out of the historical context of the circumstances of this one professor's death many decades ago, but it obviously has some potential policy implications for what's going on right now with the Russia pro because it ultimately revolves around the ability of the judiciary to authorize the release of information that is otherwise considered secret. It's

grand jury information. And the problem here for the Muller team is in the past, when he had something like the Independent Council Statute, there was a statutory basis for UH the Independent Council to release and or to incorporate grand jury information into report. That's why you saw it in the ken Star report back in the nineties with

Bill Clinton. But that statute lapsed, and so there's no statutory exception or loophole here, and so we're relying now on different interpretations of existing DJ regulations, and no one quite knows for sure how Mueller's team would view their authority and how d o J leadership, particularly the Turn of General, would view the proper policy here um in the absence of a ruling by the Circuit UH in this ongoing case to decide to what extent Mr Muller

could bring in various grand jury information and whatever report he writes about the President's involvement in collusion or obstruction, would this DC Circuit opinion necessarily rule in the in the Muller case, No, so this so it's it's the I mean, it might get mentioned in the periphery, but the this DC Circuit panel is only addressing the context of the specific case before, which is trying to get the court to authorize the release of this various grand

jury testimony from decades ago when the case was presented as the grand jury but ultimately no prosecution was pursued. Uh. And so the d o J position in that case, because in any case, in the kind of situation that just Department represents the US government, d o J is taking the position the judiciary doesn't have the authority absent specific statutory authorization from Congress, to authorize that release. And we don't know how the the three court panel will rule.

If this panel rules that the courts don't have that kind of authority absent congressional statute, it undermines some parts of what Muller's team would otherwise want to put into a report. Now, if Democrats win control of the House in November, is there a problem solved? Essentially, because they can in any kind of subpoena, they can request this if they're having impeachment hearings, Craig, and this is this is only a problem in the context of uh, they're

not being a congressional impetus. So if the Democrats take the House and the Senate and they choose to run various investigations or issue subpoenas that they've been dying to do this whole time, but they've been facing um some pushback from the Republicans, then yeah, they can do that. They are then killing in that gap that otherwise required that congressional authorization. But if they fail, if the Republicans hold the House and the Senate, you don't know how

this will play out. You don't know how Mr Mueller would view, you know, any particular ruling. If the if the DC Circuit comes down in favor of the Justice Department's view that the judy starts said, the judiciary doesn't have this inherent authority, will he have to curtail or restrict the comprehensive nature of his report? Will Mr Rosenstein determined that their aspects of the report that can never be sent to Congress. No one truly knows how this

would play out in reality. It's certainly not something we were expecting. But It's going to be an interesting case to see how the Circuit panel UH considers it and rules ultimately, so Brad turning to other aspects of the Mueller probe, turning to Paul Manaforts next case of the judge has put it off for a little while, or at least has put off the presentation of the defense case in or to give them more time, although jury

selection will begin. The Wall Street Journal reported that last week, as the Virginia jury was deliberating that the defense Manaforts getting my ams mixed up, Manaforts defense team was talking to Muller's prosecutors about a possible plea deal which did not work out. What does that indicate to you, if anything? Oh, look, I think could be a number of things. One most obvious is this is very expensive to run this high profile UH and very lawyer laid in defense to Mr

Manaford is running it costs hundreds of thousand dollars. He already just went through that with one trial, and he's got a deal now with the second one. He has financial problems of his own, as we heard all about during the trial in the Eastern District of Virginia, and he has to wonder how much longer he can afford this, since he's already been convicted on eight counts and is most likely going to jail for the rest of his

nat real life. So there certainly is a reason and incentive for him to try to minimize the financial burden that's going to be imposed on his family when this is all done. He's got to see if there's any kind of deal he can make in the end to try to save his skin and possibly still see the outside world while he's still alive. Now, what was the problem? What was the reason the negotiations broke down? The Wall

Street Journal didn't quite say. My assumption, it's pure speculation, of course, is that it had to deal with the extent to which Mueller sent to which Manafort was willing to cooperate, was willing to provide relevant and material information to the Mueller team on the issue of collusion. And it could be that Manafort doesn't have anything, or could be that Manafort didn't want to strike that kind of deal, in which case Muller's team sayesn't forget it, We'll just

go to trial. We've already got you nailed. I tell you that I wish we had more time because I also wanted to ask you about the other implications of this, and it seemed like Mueller seems to be just rejecting a lot of information that is coming his way. Perhaps he has anough who knows. Thanks so much, Brad. That's

Brad Moss, a partner at Mark Say. On Monday, a federal judge in Seattle extended a ban on publishing glueprints for untraceable three D printed guns online, another victory for gun control groups and nineteen states trying to stop the plans from being made public after the band first went into effect last month. Washington Attorney General Robert Ferguson celebrated

the decision and explained the suit. The idea here is to limit the harm, and by placing this temporary storing and temporary straining order place that'll make a dramatic difference for public safety. That could be ludicrous for anyone to suggest somehow that it does not make a see joining us as Barry McDonald, professor at pepper Dune University Law School, Barry the Trump administration reversed the position of the Obama administration. Why is the federal government fighting in court to allow

the distribut usition of three D printed gun files. Well, I think there sort of back on their heels. They're not so much fighting to allow it to happen, but they're justifying a settlement agreement that they entered into with this defense distributed company to allow them to do that. And you know, they put forth a couple of different

rationales for that. Originally in a memo by the State Department, they said that we don't think the First Amendment would allow us to keep them from making these uh digital blueprints or these software files available on the internet. And then in court they're really justifying on the ground that what we did a long study and we've concluded that allowing these blueprints to be distributed won't threaten our national security interests. So tell us the judge issued a strongly

worded decision. Tell us what he said. Well, the judge basically said that the Trump administration didn't follow proper procedures when uh it removed this particular item from the export restriction.

So the law at issue here is a is a ban on making available information to foreigners that might, you know, allow them to create weapons and munitions that could be used against the United States and So the judge that that when the Trump administration agreed to remove these particular items from the sort of category it might have felt fallen into on the export with that, they didn't, you know, properly give Congress thirty days prior day notice of doing that. Uh,

and they didn't notify the Defense Department. So it's really just you know, you didn't do it the right way. Go back and you know, restart the thirty day clock, do it the right way and then and then see then we'll litigate the case perhaps on other grounds. So it's a procedural victory. Then what let's talk about the underlying case is the First Amendment claim of Cody Wilson, who's the owner of Defense Distributed, who wants to post the plans online. Is that First Amendment claim solid or

is that questionable? I think it's very solid um And it's solid because of rules the Supreme Court has developed over time to create very broad protections for free speech. So the first question is, you know, our computer software files or computer programs are are they speech? And I and you know, some argue they aren't. Some argue this is just conduct. But I think those arguments are weak.

I mean you know, computer programs consisted of source code, object code, you know, human written language as well as sort of mathematic qual formulas that are designed to be instructor computer hardware as well as computer users what to do.

So I think it's very difficult to make the argument that, you know, even digital uh you know one gerals that make up bits and bytes aren't speech, because then you'd have to say, well, you know, music notation that is designed to be a symbol to communicate how to play an instrument, isn't human expression protected by the First Amendment, Or that, for example, a mathematical formula like E equals mc squared isn't human expression protected by the First Amendment.

So I just think it's very difficult to make the argument that, you know, these computer programs aren't speech, and then once you um, you know, determine that their speech. Now, the Supreme Court is said two things. One, if you try to restrain the publication of speech before it happened, uh, then the government is going to face a very severe

burden in terms of preventing that dissemination. Think of the Pentagon papers case that was recently uh displayed in the Post movie where you know, the Supreme Court basically said the government could not restrain the publication of you know, top secret information about the Vietnam War because the government had demonstrated a severe enough national security threat. And so you have that rule that kicked in here where the government would have to demonstrate a severe national security threat

or other harm. Well when the government before we go to the other rule, would the government be able to prove harm with the States be able to prove harm in this case where you likely could have access to guns from you know, to terrorists and all kinds of

other people. Well, of course, the States are arguing, and I think understandably so they're very concerned that you know, this could put untraced and undetectable plastic guns, uh in the hands of a lot more users, you know, and given the mass shootings that occur regularly throughout the United States these days. You know, I don't I don't. I don't doubt their sincerity. Uh. The question is the question is, though, what is the best way to go about addressing the harm?

Is it too Is it to prevent the speech and this is sort of what we call instructional speech. Is it for the government to be able to ban or sensor instructional speech or is it to go after the underlying conduct? And you know, uh, enforce the laws more aggressively because there are laws on the books about having untraceable weapons, and New York is proposing in the light of this whole controversy, New York is proposing legislation that would make people that want to print these sort of

guns be licensed and register them. Uh So the only question is is, you know, is that going to be Are they going to have enough of an enforcement effort to mitigate the potential harm? But in past cases, the Supreme Court has pretty much always come down on the side of, well, go after the bad conduct, regulate the bad conduct, don't go after the speech. That's what's protected

by the First Amendment. And another good example of that is, uh, you know, there was an older case where a magazine wanted to publish how to make a nuclear bomb, the instructions from making the nuclear bomb, and the very we only have a we only have a minute here left, and I want to just read this headline to you that's crossing the Bloomberg. The owner of the company that makes those untraceable three D printed guns said he's begun

selling the plans online despite the court order. In forty five seconds, can you tell me what might be next in light of this? Well, so he was always claiming that he had uh legally posted certain files on the

internet before this order. So I'm not sure if he's talked about that or he's actually talking about defying the court order now that it's been played, if he's defying the cord or you know, of course the court can hold him in contempt and then his his defense would be, no, you can't do that because you know I have a First Amendment right to do that. We have to leave it there. More about this, uh in the coming days. That's Barry McDonald McDonald, professor, pepper Down University Law School.

Thanks for listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple Podcasts, SoundCloud, and on Bloomberg dot com slash podcast. I'm June Brasso. This is Bloomberg. Yea