Trump Reportedly Mulled Firing Mueller

out the order and threatened to resign. Yesterday, Senator Mark Warner, the top Democrat on the Intelligence Committee, issued a statement saying, quote, firing the special counsel is a red line the president cannot cross. That echoes the warning Warner gave on the Senate floor in December. These truly are red lines and

simply cannot allow them to be crossed. As he arrived in Davos, the President called the story fake news, echoing denials he and his staff have been making for months like this on August ten, I haven't given it anything. I mean, I've been reading about it from you people. You say, oh, I'm going to dismiss him. No, I'm not dismissing anybody. My guess is Jeffrey Kramer, managing director at the Berkeley Research Group and a former federal prosecutor.

Jeff there have been reports that Trump was considering firing Mueller for months. In fact, several Senators from both sides of the aisle have proposed bills to protect Muller. So why this shock from so many quarters about this story? Well, I think this is the first time. Again, if the reports are true, and what the reporting has, I think it's three or four individuals who are telling the same story.

This is the first time we've had, let's call it confirmation or at least a little more than a rumor, that he was thinking about not only fire, but may have taken steps and asked his White House counsel to reach out to d o J to do it, which would be the mechanism. So I think it is a bit of a sea change. So what would happen if Trump does decide to fire Muller. Well, it's an interesting process.

The president technically cannot fire Bob Mullard UH the d o J ken and usually be the Attorney general, but unfortunately here UH he has recused himself, so it's left to the Deputy Attorney General. So Rod Rosenstein is the only one who legally can fire Bob Muller, which is why part of the reporting is that Mr Trump may have asked McGann to reach out to Rod Rosenstein um.

But the problem is, at least from the President's standpoint, according to Rosenstein and his testimony before Congress, he's fine with Mueller. Mueller has to check in with him periodically according the Special Council legislation, and he sees no reason to fire him. So that's where the rubber hits the road is with the Deputy Attorney General looking at what's

called the Senterated Night massacre. When President Nixon ordered the Independent Special Counsel uh Independent Special Prosecutor Archibald Cox to be fired. You'd say that if anything like that happened, it would lead to impeach bent. But Trump has demonstrated that he can get away with things that most presidents can. And we've seen a Republican effort in the last few months to knock Mueller's investigation as being partisan and to you know, criticize the FBI. So what do you make

of that? Well, I mean, there are some certainly some similarities.

The differences ours as you just indicated, um times of change, and you do see a politicalization, maybe more so than even during the Nixon era, of Republicans repeatedly taking shots at Mueller's investigation, at some of Mueller's team at the FBI, it's been a pretty steady drumbeat, and I think that's a concerted effort to minimize any results that Mueller brings, be at an indictment or a report that goes to Congress for possible uh impeachment proceedings, which is a is

a strictly political endeavor. It's not a criminal endeavor, it's a legal endeavor. So I think it's a it's an effort by the president's ally to minimize Mueller even before any results are are before us. So, judging from the people in Trump's inner circle that Mueller has called in, Mueller seems to have gotten far in the obstruction phase of the case. Is an interview with the president, which is being talked about. The final step in that part

of the investigation. I think it is maybe a little clean up here and there with other witnesses, but certainly the president would be one of the last people that his team would would interview. Interestingly, most investigations when they go on, the public doesn't know what's going on, other than maybe a little rumor here or there. In this case, we know a fair we know a fair amount of what of what Muller knows, albeit maybe a few months

behind the curve. UM, So I think there, you know, could be some elements of obstruction, in which case, the interview with the president, if it takes place, I'm still convinced that somehow he's going to get out of it, because the last thing his criminal lawyers want is a free blowing interview with Mueller's prosecutors who are armed with documents and having already interviewed dozens of witnesses and seeing what their clients says as he says that they're going

to be learning it. That's not what the criminal defense lawyers want to happen. And there are there are reports that people who have been interviewed by Mueller were shocked at the by Mueller or his investigators were shocked at the amount of information they confronted them with. So now White House lawyer Ty Cobb actually who was Trump's lawyer, says that um he is going to be making the decision about whether or not Trump is going to sit

for an interview with Mueller. What what are the possibilities here, because it seems like Mueller would not give into, you know, a written questions to take home exams sort of yeah, I agree with you. Um, Ultimately it's up to the client. I mean, it's up to the President of the United States whether he wants to do it. So Ty was giving him, certainly some some back cover. The President can say, well, my lawyer's told me not to do it, but you're right, Mueller is not going to agree to to take home

exam and have the lawyers review the answers. If push comes to shove and you play this out at the game of chess, if the President says no, I'm not gonna sit down for an interview, now there's a fork in the road for Mueller. He can either walk away, which is not going to happen, or he can issue a grand jury subpoena. And now the courts are going to be involved because the President will trying to quash that subpoena, saying a president doesn't meant to sit before

a grand jury, and the courts will be involved. There's president for UH presidents to be interviewed. President Clinton was interviewed in a lawsuit. So I think eventually this president is going to have to answer questions. It can be in an interview with Mueller's deputies and himself, or it can be before a grand jury. But sooner or later,

he's gonna answer questions. I did a little research, and I could not find any instance where a president was successfully able to use executive privilege or some other legal construct to avoid either testifying before a grand jury or sitting down with investigators. Do you know of any instances where a court said no? And I think your research is spot on, especially when the case pertains to having

the president be a subject. If if the rule was a president can basically avoid interviews with investigators or grand jury, then the you know the old adage that we all have that Noman is above the law, We're gonna have to rewrite that um. And so I think, eventually, again, if push comes to shove, testify and I don't think a court is going to save him, I have to say this remains continually interesting. There are always twists and turns, and but wouldn't you like to be a fly on

the wall in Robert Mueller's office. I think most prosecutors who have been in the game for a while, I would love to have an interview with someone who just speaks and then worries about the truth later. That's a pretty good interview to have. Thanks so much for your insights, Jeff. That's Jeff Kramer. He's the managing director at the Berkeley Research Group, and he's a former federal and state prosecutor. States are starting to step up and defy the fccs

repeal of net neutrality rules. New York has become the second state to try to restore net neutrality principles by taking action against broadband companies. On Wednesday, Governor Andrew Cuomo signed an executive order barring state agencies from doing business with Internet providers that block rivals web traffic or charge more for faster service, following a similar order from Montana's Governor Steve Bullock. Joining me is Daniel Lyons, professor at

Boston College Law School Dan. When the FCC rescinded the Obama era net neutrality rules in December, it included a clause banning states from adopting their own standards. Do these executive orders get around that? So it's not entirely clear. Right. In one sense, this is better I think UM, in the sense of surviving litigation, better than the sort of litigation that's being considered in California, where the legislature is trying to directly require broadband providers to abide by the

rules of the FEC repealed. My senses, those kinds of initiatives are probably preempted under the language of the UH the SEC Statute. But this executive order UM, focusing on procurement law, is an in run around I think may actually avoid the pre emption problem. And it does, however, face other issues. So the SEC has said it's going to take states to court over net neutrality. Do you expect that it will be legal battles that decide this issue?

I do, UM, although I'm not I don't know whether it be the FEC who ends up acting or broadband providers that are subject to the UM the executive order writer. Now, groups representing broadband providers reacted with alarm to the prospect of state regulations, saying base really that there can be fifty different regulations governing the Internet. Do they have a point? Yeah? And I think that's actually the area where these types

of issues are probably most vulnerable. First, one concern would be whether there's a state law on the books that prohibits the governor from attempting to regulate broadband. That's sort of a state by state issue. But secondly, there's a concern with the Dormant Commerce Clause, which is a constitutional doctrine that prohibits states from engaging in regulatory activity that

would have an undoe influence on interstate UH conduct. The concern here is that UH, the Internet is not something that's easily segmented into a series of state by state networks, and attempts to do that to impose rule of law on New York as different than a rule of law in New Jersey or something like that would destroy some of the benefits we get from having one Internet and instead create a series of splinternets. So the best thing

would be to have an aggressional law on this. Yeah, Certainly, the cleanest way for net neutrality proponents to overcome the SEC's rulemaking here is to adopt a statute that work nationwide that would clarify once and for all what the rules are with regard to broadband network management practices. You mentioned California. Are there other state legislatures that are considering different approaches, so I'm aware of the California has a

couple of different approaches on the board. Montana also recently enacted in executive order similar to the one we see coming out of New York. I think the primary difference is that the Montana executive order impose requirements on broadband providers, both with regard to UH contracts, the way the broadband provider treats the state, and also the way it treats

individual residents within the state of Montana. My reading of the New York executive order seems only to apply to contracts with regard to state agencies and making sure that state agencies are treated net neutral e doesn't, on its face, regulate the relationship between broadband providers and New York consumers. Well, someone have to police net neutrality. Tell us about a New York City Mayor Bill de Blasio's truth in Broadband proposal.

So a big chunk of um the fight over net neutrality, even independently of how traffic gets managed right, One of the more important aspects is to make sure that whatever broadband providers are doing their open about it. One of the key instances that kicked off in that neutrality debate was a situation in two thousand eight when Comcast was interfering with bit torrent traffic, and Comcast added an argument

as to why um IT needed to do so. But I think one of the things that rubbed the FEC the wrong way is that they weren't transparent about what they were doing. They tried to hide it, and when they were called out on it, UH, it looked really bad for them. One of the ways, and if you believe in a competitive marketplace like the current FCC does, one of the ways that you rely upon UH competition to discipline market actors is to make sure that consumers

are making intelligent choices. So I think all aspects then, as part of I think what Mayor de Bosi is getting at, whatever it is that you're doing broadbanfort writers should make sure that they're disclosing it accurately to the public. To the public is making an intelligent choice among their providers.

So speaking still of New York, Governor Cuomo's office compiled a list that said the telecommunication companies that do business with New York include A G and T, Verizon, and Frontier Communications explain how a rule in New York, which is such a large and populous state, would affect other states.

So the question, which I don't know uh completely the answer too, because it's a little bit technical, is how easy it is for these broadband providers to segment their traffic the traffic that stays intrastate versus the traffic that crosses state lines. Right. Um, if it's possible for New York to for for providers that the New York to treat New York traffic differently than non New York traffic, then the argument for a dormant commerce cause prohibition is

a little bit weaker. But it's a little bit difficult to discern that because the path by which information gets from point A to point B over the Internet is somewhat random. Right, packets travel over the fastest possible pathway at any given millisecond, and the way part of a message travels may be different than the way another part

of the message travels. If it winds up being impossible or very very difficult to distinguish interestate from interstate traffic, then what it means is to comply with New York's requirement, broadband providers would have to uh treat traffic net utually, not just within New York but everywhere else in order to avoid the allegation that they're out of compliance with New York's requirement. And that's when dormant commerce cause concerns become an issue. Dan, we'll have to leave the dormant

Karmace Claus commerce clause for a while. Thanks so much. That's Daniel Lyons, the professor at Boston College Law School. Thanks for listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple podcast, SoundCloud, and on Bloomberg dot com slash podcast. I'm June Brosso. This is Bloomberg