Spotlight at Jan. 6 Hearings

how crazy some of these allegations were. There was never there was never an indication of interest and what the actual facts were. Attorney General Merrick Garland says he and the Justice Department are listening to the hearings, but the question is whether they'll act on them. Joining me as former federal prosecutor Eli Hoenig, the Committee is obviously laying out a roadmap for prosecuting former President Trump. Do you think the evidence presented so far provides the basis for

potential criminal charges? So, jan let me say, first of all, there's been a notable change in tone from the committee members. If you think back a few weeks and months ago, whenever they were asked about are you trying to encourage or pressure prosecutors to bring charges, they would always sort of demur. They would say, well, it's not up to us. Now they are openly talking about illegality and conspiracy, so there's no question to me that they're trying to send

a message here to prosecutors. Is there enough to prosecute, that's a complicated question. I think that there is a compelling foundation being laid that Donald Trump and others had potentially criminal intent, and that the intent was to obstruct Congress and potentially to defraud the United States. Not I don't usually like to use so many hedge words potential, potential,

but let me tell you why I'm doing that. We should not look at these committee hearings and assume that everything we're seeing would translate over one to one to a criminal prosecution, because there are two very different ball games, and some of the evidence of the committee is playing would not be admissible in a trial, and there's no defense lawyers, there's no cross examination at the committee. So I think we need to keep that in mind, that this is sort of the committee having the floor all

to itself. But a criminal trial is very different. A prosecutor has to prove the case beyond a reasonable doubt, and of course the accused the defendant would have a zealous defect. So I'm reluctant to draw a straight yes, this can be prosecuted and convicted, just based on what the committee has done so far. What are some of the possible crimes that could be charged? Not saying that they will be charged, but what are some of the

possible crimes you see? Well, I see three big ones if we're talking about with respected Donald Trump or other powerful people. The first one is conspiracy to defraud the United States. Though normally that means to steal money from the United States, but legally it does not have to be a financial loss. It can be to deprive the United States of a fair election. In fact, Robertmuller charged some of the Russian nationals who interfered with the elections

under that theory. The second big one I see is an attempt to obstruct an official proceeding. Here, the official proceeding is the counting of the electoral votes by Congress, and the argument would be that Trump or potentially this

lawyer John Eastman, had corrupt intent. They knew what they were doing was wrong, and they still tried to block essentially Mike Pencil counting the votes and then the third one, the most dramatic charge, would be seditious conspiracy, which is essentially the same thing as trying to obstruct a proceeding, only with an element of use of force. So you would need to tie the person to the physical force

that we've used to break into the Capitol. I don't see any evidence establishing that link to Donald Trump at the moment, but d o J has charged various members and leaders of the Oath Keepers and Proud Boys with that, and if you can show that anybody else was involved with that use of force, then you can charge that crime as well. Prosecutors, of course, have to believe that they can prove their case to a jury beyond a reasonable doubt. What else goes into a charging decision? That's

issue number one. You have to believe that you can prove your case of a journy beyond a reasonable doubt. You want to look at the equities of it. You want to look at is this a fair and righteous prosecution? And I think the big question here is how do you take into account the fact that this is a former president and an indictment of him will cause all manner of protests and perhaps worse than that we've heard Trump sort of rally his followers. If they indict me,

we're going to have some civil unrest. Um paraphrasing what he said, you know, d O J internal guidance and this is public tells prosecutors you're not to consider that kind of thing. You're not to consider whether a person is politically popular or unpopular in whether to charge them. But I do think as a practical matter, June, I assure you prosecutors are cognizant of the fact that if they do charge Donald Trump, it will be unlike any prosecution in prior the United States history, and it will

be uniquely fraught and uniquely difficult. Yeah, because we hear Attorney General Merrick Garland say over and over that you know, will go wherever the evidence leads us. But if the evidence does lead to Donald Trump, one wonders if they'll be, you know, worry of breaking the norm against indicting former presidents and also of the division that it will likely cause in the country. Here's my response to what we've seen from Marrick Arland. Two things I can say for sure.

Number One, this idea we're going to start at the ground level and build up which he says over and over, that's not really true. That's not really how good prosecutors build their cases. I can't tell you how many times I had evidence that led me write to a powerful person. I used to do mob cases. I had evidence where I would go, Wow, okay, great, I have a shot at the boss here, I have a shot at a

capo here. I wouldn't stop and go okay, hold on, let me go start with the low level guys on the street and see if I can put them, and see if then I can flip those guys and get back up to the top. So that, to me is not really an accurate view of what good prosecutors do or ought to do. The other thing that I think is sort of indisputable about Merrick Arland. You know, there's a lot of will here, won't he What I think

is beyond dispute is this is taking too long. I mean, we are a year and a half out from January six at this point. Arland came in March, so he's been there sixteen months at this point. But if this is a crime by Donald Trump and others, it is the greatest crime ever committed against our democracy and to take this long and counting to charge it, I think is not at all commensurate with the seriousness of the crime that we're talking about, or of the ongoing threat.

And the thing is, if Garland doesn't charge this by the end of the summer, d o J policy says you don't charge a big political case within sixty days or ninety days. People sort of vary on what the number is before an election. So if we don't see Merrick Garland charging Donald Trump or anyone around him by August, and I don't think anyone realistically thinks that's going to happen.

Now we're talking end of early three. We're talking two full years out, by which time Donald Trump they well have declared his candidacy for four and if he does that, he will be called immediately the prohibitive Republican front runner, which I think makes it even more difficult as a practical measure to charge it. Thanks Ellie. That's from our

federal prosecutor, Ellie Honing. The January six Committee explored former Vice President Mike Pence's decision not to violate the Constitution by ignoring the votes of states offering fake or alternate

boards of electors. Pence's former general counsel, Greg Jacob, testified that the Vice president was clear from the outset that obeying Trump's wishes would have been unconstitutional the vice president's first instinct on that point, there is no uh justifiable basis to conclude that the vice president has that kind of authority. Joining me is Bloomberg Law team leader Christopher opfor Chris tell us about what happened to Greg Jacob

on January six. Sure, so, at the time, Jacob was serving as chief council to Mike Pence, and of course Pence and his top staffers were there at the Capitol preparing to go through the imaginations of certifying the vote. And at this point, certainly Pence and his staff, including Jacob, were aware of the crowd gathering outside and were aware of the back and forth, particularly from various Trump supporters are urging Pence to do something to overturn the election results.

But it wasn't until Jacob went downstairs into the battles of the Capitol with a couple of the staffiss to actually get a cup of coffee that he heard, you know, the mob outside storming the Capitol. He literally heard glass breaking and people filing in, and that's when he and

the others hustled back upstairs. They were ushered by Capitol police and secret Service to the Senate floor at first, and then they were taken to a secure location with Pence, his wife, pence brother who's a Republican congressman, and others, and they really hunkered down there for the next six hours or so as the mob wineled in. So as he was being shuffled from the Senate floor to the

secure location, Jacob fired off an email Eastman. And the backstory there is that over the last two days leading up to the Capitol, right on January six, he and Eastman had been having this ongoing back and forth debating the merits of Eastman's argument, in which Eastman was trying to convince Pence to step in and overturn the election.

Those arguments had been rejected roundly. And once the mob had had forced its way into the Capitol and Jacob is being shuffled off first, he's fielding frantic text messages from family members and his pastor about are you all right? Are you say? He takes this moment to fire off an email the Eastman which says something to the effect that we are now under siege and this is all thanks to your BIA. So how did he become Pence's top lawyer? Since his background is employment benefits law. It's

a really unlikely story. It's not something that Jacob had in mind for sure. Uh, certainly not when Trump and Pence were elected, and not even you know, probably midway into the four years of the Trump administration. He is an employment lawyer by trade. He is an expert in RISSA, which is this very wonky but also complicated and and incredibly important federal law that governs employee pensioned plans, retirement benefits, etcetera.

He's been in and out of government in Republican administration. He's had some top roles at the Labor Department. Earlier in his career he had worked at the d J in the Office of Legal Counsel, so he did have some experience and expertise outside of the labor and employment world,

but that was certainly his bread and butter. And in fact, Jacob, you know, once Trump was elected, had his eyes on a return to the Labor Department and was really focused there and for a number of reasons that fell through. He had made some connections with the Pence folks, because Jacob had been recruited by a b called the House, who's a long time GOP lawyer to work on this team that was actually vetting VP candidates for Trump, And so that's how he had come into Pence his orbits

in the first place. Pence's long time chief council, a guy named Matt Morgan, had decided he needed to go back to Indiana for family reasons, and when they went looking for somebody, it was suggested that they take a look at Jacob. I mean so that although there was some familiarity of this was not a guy who was like a long time Pence guy, Pence supporter or anything like that. But on the other hand, they really did

jibe pretty well. It sounds like, from from everyone involved, sort of a similar worldview, very conservative, also a very devout Christian, which of course Mike Pence in his family are as well. Now what is his connection to eat. It's interesting these are two guys that are sort of cut from the same cloth in many ways. They went to the same law school at different times. They've been running in GOP lawyer circles for decades, but they had never actually met until two days before the riot, and

that was when Eastman came in. He had been hired by Trump to come in and work on some of the election issues, and it was on January fourth that he started reaching out to the Pence folks, including Greg Jacob, pitching this argument, which was basically that Pence could de certify the vote or send the vote back to certain states and UH six states, states including places like Michigan and Arizona where Trump supporters had been arguing that there was,

you know, reason to take another look at those states on the one hand, or that he could simply effectively wave a magic wand and say that Trump is going to remain president. And he laid this out in detail in a memo that has become public as part of the hearing proceedings. He also laid it out in a series of emails that have become public since then, and now this chain of emails on January six between Jacob

and Eastman have also become public. You're right that friends and colleagues call him humble, careful under the radar, not exactly, Mr Social. This is a guy, by all accounts, who has not thought the spotlight and somebody who is just super smart, super well respected in d C. And could have gone for a more public facing position had he thought that. And it's just not something that he personally

has gone after. And I get the sense that, you know, if you left it up to Greg Jacob, he would rather not be going before the House Committee in a televised event before the world. He's a low key guy, you know. I think from his position, he's already sat for closed door testimony with the committee there. But on the other hand, here's someone who people close to him

they believed in the rule of law. And certainly, by the time the mob was storming the Capitol, it became clear to Jacob that this of Trump's own doing and of trump supporters own doing, and and that Eastman in particular, according to Jacob, should shoulder some of the blame for spewing this narrative that somehow Trump was going to be

able to remain in office. And I think for him it's more of a rule of law patriotism type of thing here where he feels like, you know, this is something where he has to step up and you know, explain what happened. Thanks Chris, that's Christopher up for a Bloomberg law. The Supreme Court sided with the Southwest Airlines baggage handling supervisor, who was trying to avoid having to

go to arbitration with her claims for overtime pay. In a unanimous opinion, the Justice has said the supervisor isn't covered by the Federal Arbitration Act, which requires the enforcement of agreements to take claims to arbitration rather than to trial. In the majority opinion, Justice Clarence Thomas said the supervisor qualified for an exception in the law for workers engaged in foreign or interstate commerce. Joining me is Mark Rifkin,

a partner Wolf Haldenstein. This is the second time in two weeks that the Court has shot down a company's attempt to force an employee into arbitration rather than going to trial and a unanimous decision. Is that surprising to you, No, I don't think so. I think that the first decision in the case involving the worker who was trying to invoke waiver as a defense to arbitration, was a straightforward application of the principle that arbitration should be put on

the same footing as every other contract. And then the Southwest Airlines case, the second case is again just a straightforward application of simple definitions and principles that you can find in Black Law Dictionary. And so I think in the in that vein, they're both simple, straightforward applications of basic fundamental principles to arbitration agreements. So tell us about

the facts here. So, the plaintiff in the Southwest Airlines case was ramp supervisor and part of her job included helping the ramp workers load baggage and airmail and cargo on and off airplanes that obviously travel across the country and presumably internationally as well. And the question is whether those workers who are involved in that kind of work belonged to a class of workers engaged in foreign or

interstate commerce. Because the Federal Arbitration Act exempts those workers from the protection of the f a A, they can't be compelled to arbitrate, And so the question is do those baggage handlers fall within that class of workers. It seems obvious what her argument would be. What was the argument of Southwest as to why she shouldn't fall under

this exemption. So Southwest Airlines said that the airline is engaged in interstate commerce, but the workers at the airport who don't themselves travel across state lines or across international lines. That the workers are not engaged in interstate commerce, even

though they work for a company that is. And and the question that the Supreme Court addressed is whether those workers who are part of that effort of commerce are themselves engaged in foreign or interstate commerce even though they work within one state rather than traveling interstate or internationally.

Justice Clarence Thomas wrote the majority opinion, explain his reasoning, Well, it's a unanimous decision, so so all the judges who participated in the decision agreed, and Justice Barrett did not participate, but everybody who participated agreed. And Justice Thomas, writing for the court, said that, um, if we look at how black slaw a dictionary defines the words engaged and commerce, then we conclude that anyone is engaged in commerce who is occupied in it, employed in it, or involved in it.

And the Court took a very broad approach to applying that definition. And since the ramp supervisors who actually handle the cargo are certainly involved in interstate commerce, the Court said, well, they fall within that class of workers who are exempt under Section one of the Federal arbitration. I love when they go to the dictionary to decide a case of

national importance. Well, you would think if a case was complicated enough and important enough to be adjudicated by the Supreme Court, it should require some more sophisticated analysis than looking in the dictionary. But here the dictionary help. And so Justice Thomas looked in the dictionary and saw the how those terms were interpreted, and uh said, works for US Uber Lift and Amazon all file briefs backing Southwest. What are the implications for those workers? Well, I think

the principle is fairly well established. Now, if you work in an industry that participates in either interstate or international commerce, and so for example, Amazon plainly participates in interstate and international commerce, if you work for a company that does that, and your job is closely enough tied to that commerce, then the same rationale would apply to that worker as

as applied to Saxon in the Southwest Airlines case. Now, not everybody who works for Southwest Airlines would fall within the courts rational So I could imagine an accountant who works for Southwest Airlines. I could imagine that a court would say, well, that person is not engaged in interstate

or international commerce. But you know, obviously, if a baggage handler is engaged in interstate or international commerce, a flight attendant is engaged in interstate or international commerce, and presumably others as well, even though their jobs don't cross state lines or international lines, still could be engaged in interstate commerce within the meaning of Supreme Court's decision here, I want you to tell me what you think Southwest is

saying here. They said, because non union employees rarely handle cargo on a regular basis, Southwest will continue to rely on the Federal Arbitration Act to enforce its arbitration program in the future. Are they saying they're not going to pay attention to the Supreme Court? Well, I think they're trying to look for a move all around through this

free Courts decisions. They conceded in the case that at least Saxon, this ramp supervisor, that a significant part of her job was to transport cargo, that she helped the

ramp workers by frequently loading and unloading cargo. So because Southwest conceded the issue there, they're now looking for a way to distinguish some other kinds of workers from Saxon and I guess the way they're trying to do that is the extent to which any particular worker actually handles baggage or cargo or whatever it may be that gets loaded and unloaded from from airplanes. Um. You know, these are the kinds of grain lines that courts often have

to draw. And I guess in the next case brought by a Southwest Airlines employee who doesn't handle as much baggage as Saxon did, maybe the court would find that that person falls outside the exemption. But that's another case for another day. We've talked about the Supreme Court and arbitration before. Before these two cases, has the Supreme Court been interpreting arbitration in ways that are favorable to businesses for the most part, well, I think the Supreme Court's

approach to arbitration has been favorable to business. The f a A says you can't disfavor arbitration, and that was the rationale for the Morgan Versus Sundance opinion that Justice Kagan wrote is that arbitration agreements have to be on exactly the same footing as all other contracts, and so in that case in Morgan Versus Sundance, the Supreme Court said, you can't favor arbitration by creating an artificial barrier to a waiver defense that doesn't exist to the defense of

any other contractual right. And so when the Sixth Circuit imposed this additional requirement of prejudice to the defendant who was trying to enforce arbitration after litigating a case or some prolonged period of time, the Supreme Court said, you've weighed that right, whether you're prejudiced by by the inability to arbitrate or not. And so the Court now says,

you know, equal footing means equal footing both ways. But the reason that the approach to arbitration favors business is because it's an expansion of what the f a A really was created to do. You know, decades ago, federal courts were very unwilling to enforce arbitration agreements between sophisticated commercial parties, which is primarily where arbitration agreements were found.

And when two big companies decide they want to arbitrate their disputes, they're able to make a decision and negotiate over whether to include a provision like that or not include a provision like that. In a contract, and so it really does make sense to say that arbitration is a matter of mutual consent between the parties, and we're going to treat that the decision to arbitrate and agreement to arbitrate like any other agreement that we routinely have

to enforce. But today businesses imposed these arbitration agreements on consumers who don't really have a choice and don't really have the opportunity to negotiate, and can't say to a company that they want to buy a product from, I'd like your product, but I don't want to agree to arbitrate. It's to take it or leave it kind of of

a contract. And it's hard to imagine that there's really any voluntary consent to an arbitration clause that's inserted in, you know, in a click through page on a website where you order goods or services online, for example. But the Supreme Court has expressed the view that if there's an arbitration agreement anywhere around, whether you can be said to consent to it in any meaningful sense or not,

you're bound by it. And that's why I think the way the Court has approached arbitration agreements is very business friendly because in the consumer context there really is not any meaningful choice. I know I've asked you this many many times before, but just explain how arbitration favors the large companies. So there's there's two or three principle advantages

to a big company. One is that you don't have the ability to conduct broad discovery, so that prevents a plaintiff, any plaintiff, from from finding out enough information to be able to bring a claim successfully. Number Two, you'll lose the right to a trial by jury, and that's a really important right, particularly for a consumer, because stories are there to try to even out and any prejudice that's built into the system to favor the big guy over

the little guy. And then the third big advantage is it is virtually impossible to appeal an arbitration award against you because the standard for appealing an arbitration award is so incredibly high it's almost impossible to meet. It can almost never be met. And lots of times arbitrators are part of the industry in which the big company works. Not always, but lots of time. Thanks Mark. That's Mark Rifkin of Wolf hollen Stein. 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 in to The Bloomberg Law Show every week night at ten b m. Wall Street Time. I'm June Grosso and you're listening to bloom Burn