[music]

>> This is Bloomberg Law with June Grasso

from Bloomberg Radio.

Here's how acting Attorney General Todd

Blanche, newly minted as the nation's

top law enforcement officer, explained

the purging of attorneys at the Justice

Department. You had prosecutors who were

absolutely not doing the right thing,

okay? And so none of none of those

prosecutors I I hope everybody agrees

that they shouldn't work here if you're

not doing the right thing. To Blanche,

prosecutors not doing the right thing

means they worked on the criminal

investigations into President Trump. He

failed to mention that most prosecutors

work on the cases they're assigned to.

I've been talking to Dave Aronberg,

former Palm Beach County State Attorney.

Dave, I've seen different numbers, but

thousands of prosecutors and FBI agents

have been fired or resigned since

Trump's second term began. So you have

inexperienced attorneys appearing in

federal court, or attorneys who have

experience in other areas. They have,

for example, they have military lawyers

going in and doing immigration cases.

And it suffers because first you have

judges who no longer give so much

deference to the Department of Justice.

That's a problem because these are

really important cases. Federal

prosecutors bring important cases. These

are cases involving national security,

terrorism, I mean and if they start to

lose credibility in the eyes of the

bench, then Katie bar the door. So you

have that and then you have just the

fact that when these young inexperienced

prosecutors who have now taken over from

much more experienced prosecutors are at

trial, they are facing on the other side

some of the most experienced criminal

defense lawyers cuz that's who practices

in federal court and that's going to

jeopardize your conviction rates and you

just do not want guilty people to go

free. The Justice Department is

backtracking on assurances it made to

career attorneys they'd remain insulated

from White House politics and they're

transferring white-collar prosecutors to

this new division.

What's going on is that this is another

policy that comes out of the White House

where they want to focus on the

government fraud in blue states. This is

the Minnesota

public assistance scandal that is a real

issue by the way. There are there is

real fraud there and they want to lean

into that by sending in more resources

to root out the fraud and prosecute it.

Okay, but they're doing so now by

shifting over from other parts of the

DOJ. These are some of the most

experienced white-collar fraud

prosecutors who end up getting lots of

money back for the government. These are

people who go after these wealthy

individuals who believe that they're

above the law and they get a huge

recovery and instead of going after

those elites who managed not to pay

taxes or to find ways to go around the

law, now they're going to focus on the

poorest who are

taking advantage of government

assistance. But you should be able to do

both at the same time. It's a shame if

you have to shift people over from

divisions that are working to help

promote a political agenda which is to

go and double down on the public

assistance fraud that is just become

such a big issue on the right. So now as

far as the replacement for Bondi, Lee

Zeldin, the head of the EPA, has been

mentioned.

And you you talked about this before.

It's a question of who can Trump get

through the Senate. You had Matt Gaetz,

that was a no go, right? Zeldin has

already been approved by the Senate for

the EPA position. Do you think Trump

would be satisfied with Zeldin? He's

done what he wants at the EPA. Yeah, but

being Attorney General is different. At

the EPA you don't have grand juries, you

don't have jurors, you don't have

judges, you just make policy. And then

you hope that they'll win in court, but

those court cases take years. So right

now Lee Zeldin looks fine. He's he's

doing Trump's bidding at the EPA. I

don't think that Zeldin would satisfy

Trump. I think Trump wants someone who

will burn the house down. He wants a

Matt Gaetz. Matt Gaetz won't get

confirmed. He wants Sidney Powell.

Sidney Powell won't get confirmed. He

wants Rudy Giuliani. Rudy Giuliani won't

get confirmed. So I think then he's got

to find someone who he thinks will be

loyal to him over everything else and

can get confirmed. Maybe Alina Habba?

Watch for her. Todd Blanche seriously

wants this job and and he is making a

big play for the job, but Trump right

now seems unconvinced. I think Trump

still thinks that Todd Blanche is too

much on team normal and he wants someone

in the Roy Cohn mode. So Todd Blanche

has 120 days before he has to either

exit that office or be nominated to be

Attorney General.

>> 210 days. Oh, 210 days. Okay, I got it.

I just I transposed the numbers.

>> So he has time to maybe try to prove

himself. So do you think he would get

through a Senate confirmation?

Todd Blanche, I think would very likely

get through a Senate confirmation, but

they're going to make sure if he's

nominated or anyone, it's going to be

before November because the Democrats

could win control of the Senate and then

it's a game changer. So watch for that.

I hadn't thought about that. Good point.

Now let's turn to the world of Trump's

private litigation. Trump is asking the

New York State's highest court, which is

the Court of Appeals, unlike most states

which is the Supreme Court, so we have

it backwards.

>> court in New York.

>> Yes, the Supreme Court, the Appellate

Division and then the Court of Appeals.

So he's asking the Court of Appeals to

vacate the judge's finding in that

Letitia James case where he was liable

for inflating the value of his real

estate and they've already gotten the

Appellate Division to strike down the

$464 million fraud penalty finding that

it was unconstitutionally excessive,

although it upheld the finding that he

broke the law by inflating the value of

assets like Mar-a-Lago.

But enter Michael Cohen, his former

fixer, again. Well, Michael Cohen was an

important witness in Letitia James case

against Donald Trump. And now Michael

Cohen is saying that his testimony was

coerced.

So he's being accused politically of

trying to get back into Trump world for

whatever reason and so that's a

controversy and he's dealing with that.

But aside from that, from a legal

standpoint,

he wasn't the reason in my mind that the

judge, Judge Engoron,

made the decision he did. Because the

judge made it clear that there was a

mountain of evidence and he based it on

a lot of the paperwork. In fact, he gave

summary judgment meaning he ruled for

the state early on in the case based on

the papers, not based on Michael Cohen.

So even if there was some something

untoward by the prosecutors and we don't

know if that's true. We haven't seen any

evidence that other than Michael Cohen

now saying it,

you could say it's harmless error that

it's not what led to the verdict and

thus the court would not overturn a

finding of liability. Right. And um I

remember when Michael Cohen was

testifying, the discussion was, well,

can he be believed because he's

flip-flopped? Right.

>> And now he's

flip-flopping again in this Substack.

You'd have to show corroboration. You

have to show the internal records and

that's where the judges could say,

Letitia James, produce all the internal

communications between you and Michael

Cohen and that would show whether there

was undue pressure there. I don't know.

I don't know what to think about it, but

I do know that Trump has already won

because he was able to eliminate the

entire massive penalty that was imposed.

Now, the findings, the liability is

still on the books. So this is just

essentially picking the bones. This is

just like Trump's already won and now he

wants everything else to go his way,

just overturn the entire ruling in the

case. You know, this shows you about

money in the justice system because he

has enough money to keep going back, you

know, another bite at the apple, another

bite at the apple and we'll see what

happens.

>> And he's got really good lawyers to do

it. He won at the intermediate Court of

Appeals because it overturned the

massive judgment and now he wants

everything overturned. I don't know. I

still think it's an uphill climb. He

wants it overturned because the New York

Attorney General's office wants the New

York Court of Appeals to reinstate that

nearly half billion dollar fraud

verdict. So a win here by the Court of

Appeals would be like a knockout punch,

I guess. Dave, let's turn from Trump and

the Justice Department for a minute and

talk about the Supreme Court.

This actually surprised me. One Supreme

Court Justice criticizing another. So

during a talk at the University of

Kansas Law School, liberal Justice Sonia

Sotomayor criticized conservative

Justice Brett Kavanaugh and she didn't

name him, but it was crystal clear who

she was talking about. Quote, I had a

colleague in that case who wrote, you

know, these are only temporary stops.

Talking about the stops that ICE was

doing to check immigration status. And

Justice Brett Kavanaugh had written,

they're typically brief and they'll

promptly go free and they've been called

now Kavanaugh stops. And Justice

Sotomayor said, quote, this is from a

man whose parents were professionals and

probably doesn't really know any person

who works by the hour. I mean Supreme

Court Justices critique each other in

their opinions,

but you don't often hear a justice, in

fact, I can't think of any other time

where a justice has criticized another

justice

so openly and so personally. No, but we

use the word unprecedented all the time

now. It's a our day and age where

it is about speaking out and taking

shots at people and getting likes and

clicks and attention.

And I think that takes its lead from the

person at the top, Donald Trump. I mean,

that's his style. And so, you're seeing

people from all walks of life is even

Supreme Court justices emulate that,

leaving no holds barred. And so, I think

that it is unusual for a different time,

but today should we really be that

surprised?

I mean, I wonder what happens at the

next conference the justices have,

whether there's tension in the air.

Well, this is something very personal to

Justice Sotomayor. I mean, she's the

first Hispanic on the court, and she

sees that Trump's immigration policies

have targeted Hispanics. And in this one

in particular, which allows ICE to go

and question and detain people solely

because of race, because of the language

they're speaking.

And she thought that this would be

unconstitutional to do so, because they

don't have probable cause, they don't

have any evidence that someone is

undocumented, other than the language

they're speaking, where they're hanging

out, and their race. And Justice

Kavanaugh

had a concurring opinion that offended

not just Justice Sotomayor, but others,

especially progressives, who

uh looked tone-deaf, where Justice

Kavanaugh was saying, "Well, you know,

these are just temporary stops, and all

you have to do is just prove that

they're not undocumented, and they're

released." When in reality, it's a lot

more than that. And that's why people on

the left call them Kavanaugh stops to

this day. So, Justice Sotomayor is

reflecting the sentiments, the outrage

on the left. In 2024, she and

conservative Justice Amy Coney Barrett

would appear together. They made several

joint appearances to try to show, you

know, collegiality and civil

disagreement, and to promote public

trust in the court. Amy Coney Barrett's

key. The reason why you don't want to

mess with Amy Coney Barrett, because

it's her court. This is a

Barrett-Justice Roberts court, because

they're the two swing justices.

See, Kavanaugh doesn't get that grace,

because he's not a swing justice. He is

seen as in the can for Trump. And so,

Sotomayor is essentially saying, "Ah,

you know, I'll take him on." I would bet

that if it was Amy Coney Barrett who had

that concurrence, she wouldn't be as

quick to lash out at her. You make an

interesting point, Dave. Thanks so much

for joining me today. That's Dave

Aronberg, former Palm Beach County State

Attorney.

Coming up next on the Bloomberg Law

Show, some members of the mob who

stormed the Capitol on January 6th are

suing the government for millions of

dollars, claiming police officers who

defended the Capitol that day were using

excessive force. Remember, you can

always get the latest legal news by

listening to our Bloomberg Law podcast.

You can find them on Apple Podcasts,

Spotify, and at

bloomberg.com/podcast/law.

I'm June Grasso, and you're listening to

Bloomberg.

Here's how acting Attorney General Todd

Blanche, newly minted as the nation's

top law enforcement officer, explained

the purging of attorneys at the Justice

Department. You had prosecutors that

were absolutely not doing the right

thing, okay? And so, none of none of

those prosecutors I I hope everybody

agrees they shouldn't work here if

you're not doing the right thing. To

Blanche, prosecutors not doing the right

thing means they worked on the criminal

investigations into President Trump. He

failed to mention that most prosecutors

work on the cases they're assigned to.

I've been talking to Dave Aronberg,

former Palm Beach County State Attorney.

Dave, I've seen different numbers, but

thousands of prosecutors and FBI agents

have been fired or resigned since

Trump's second term began. So, you have

inexperienced attorneys appearing in

federal court, or attorneys who have

experience in other areas. They have,

for example, they have military lawyers

going in and doing immigration cases.

And it suffers because first you have

judges who no longer give so much

deference to the Department of Justice.

That's a problem. Because these are

really important cases. Federal

prosecutors bring important cases. These

are cases involving national security,

terrorism. I mean, and if they start to

lose credibility in the eyes of the

bench, then Katie bar the door. So, you

have that, and then you have just the

fact that when these young,

inexperienced prosecutors, who have now

taken over from much more experienced

prosecutors, are at trial, they are

facing on the other side some of the

most experienced criminal defense

lawyers, because that's who practices in

federal court. And that's going to

jeopardize your conviction rates. And

you just do not want guilty people to go

free. The Justice Department is

backtracking on assurances it made to

career attorneys they'd remain insulated

from White House politics, and they're

transferring white-collar prosecutors to

this new division.

What's going on is that this is another

policy that comes out of the White

House, where they want to focus on the

government fraud in blue states. This is

the Minnesota

public assistance scandal that is a real

issue, by the way. There are there is

real fraud there. And they want to lean

into that by sending in

more resources to root out the fraud and

prosecute it. Okay, but they're doing so

now by shifting people over from other

parts of the DOJ. These are some of the

most experienced white-collar fraud

prosecutors, who end up getting lots of

money back for the government. These are

people who go after these wealthy

individuals who believe that they're

above the law, and they get a huge

recovery. And instead of going after

those elites who managed not to pay

taxes or to find ways to go around the

law, now they're going to focus on the

poorest, who are

taking advantage of government

assistance. But you should be able to do

both at the same time. It's a shame if

you have to shift people over from

divisions that are working to help

promote a political agenda, which is to

go and double down on the public

assistance fraud that has just become

such a big issue on the right. So, now,

as far as the replacement for Bondi, Lee

Zeldin, the head of the EPA, has been

mentioned.

And you you talked about this before.

It's a question of who can Trump get

through the Senate. You had Matt Gaetz,

that was a no-go, right? Zeldin has

already been approved by the Senate for

the EPA position. Do you think Trump

would be satisfied with Zeldin? He's

done what he wants at the EPA. Yeah, but

being

Attorney General is different. At the

EPA, you don't have grand juries, you

don't have jurors, you don't have

judges, you just make policy. And then

you hope that they'll win in court, but

those court cases take years. So, right

now, Lee Zeldin looks fine. He's he's

doing Trump's bidding at the EPA. I

don't think that Zeldin would satisfy

Trump. I think Trump wants someone who

will burn the house down. He wants a

Matt Gaetz. Matt Gaetz won't get

confirmed. He wants Sidney Powell.

Sidney Powell won't get confirmed. He

wants Rudy Giuliani. Rudy Giuliani won't

get confirmed. So, I think then he's got

to find someone who he thinks will be

loyal to him over everything else, and

can get confirmed. Maybe Alina Habba?

Watch for her. Todd Blanche seriously

wants this job. And and he is making a

big play for the job, but Trump right

now seems unconvinced. I think Trump

still thinks that Todd Blanche is too

much on team normal, and he wants

someone in the Roy Cohn mode. So, Todd

Blanche has 120 days before he has to

either exit that office or be nominated

to be the president.

>> 210 days.

>> Oh, 210 days? Okay, I got it. I just You

just transposed numbers. So, he has time

to maybe try to prove himself. So, do

you think he would get through a Senate

confirmation?

Todd Blanche, I think would very likely

get through a Senate confirmation. But

they're going to make sure if he's

nominated, or anyone, it's going to be

before November, because the Democrats

could win control of the Senate. And

then it's a game changer. So, watch for

that. I hadn't thought about that. Good

point. Now, let's turn to the world of

Trump's private litigation. Trump is

asking the New York State's highest

court, which is the Court of Appeals,

unlike most states, which is the Supreme

Court. So, we have is the lowest court

in New York.

>> Yes, the Supreme Court, the Appellate

Division, and then the Court of Appeals.

So, he's asking the Court of Appeals to

vacate the judge's finding in that

Letitia James case, where he was liable

for inflating the value of his real

estate. And they've already gotten the

Appellate Division to strike down the

$464 million fraud penalty, finding that

it was unconstitutionally excessive,

although it upheld the finding that he

broke the law by inflating the value of

assets like Mar-a-Lago.

But enter Michael Cohen, his former

fixer, again. Well, Michael Cohen was an

important witness in the Letitia James

case against Donald Trump. And now,

Michael Cohen is saying that his

testimony was coerced.

So, he's being accused politically of

trying to get back into Trump world for

whatever reason. And so, that's a

controversy, and he's dealing with that.

But aside from that, from a legal

standpoint,

he wasn't the reason, in my mind, that

the judge, Judge Engoron,

made the decision he did.

Because the judge made it clear that

there was a mountain of evidence, and he

based it on a lot of the paperwork. In

fact, he gave summary judgment, meaning

he ruled for the state early on in the

case, based on the papers, not based on

Michael Cohen. So, even if there was

some something untoward by the

prosecutors, and we don't know if that's

true. We haven't seen any evidence of

that, other than Michael Cohen now

saying it.

You could say it's harmless error, that

it's not what led to the verdict. And

thus, the court would not overturn it, a

finding of liability. Right. And um I

remember when Michael Cohen was

testifying, the discussion was, well,

can he be believed because he's

flip-flopped? Right.

>> And now he's flip-flopping again in this

Substack. You'd have to show

corroboration. You have to show the

internal records, and that's where the

judges could say that Tish James produce

all the internal communications between

you and Michael Cohen, and that would

show whether there was undue pressure

there. I don't know. I don't know what

to think about it, but I do know that

Trump has already won because he was

able to eliminate the entire massive

penalty that was imposed. Now, the

findings, the liability is still on the

books. So, this is just essentially

picking the bones. This is just like

Trump has already won, and now he wants

everything else to go his way. Just

overturn the entire ruling in the case.

You know, this shows you about money in

the justice system because he has enough

money to keep going back, you know,

another bite at the apple, another bite

at the apple, and we'll see what

happens.

>> And he's got really good lawyers to do

it. He won at the intermediate court of

appeals because it overturned the

massive judgment, and now he wants

everything overturned. I don't know. I

still think that's an uphill climb. He

wants it overturned because the New York

Attorney General's office wants the New

York Court of Appeals to reinstate that

nearly half billion-dollar fraud

verdict. So, a win here by the Court of

Appeals would be like a knockout punch,

I guess. Dave, let's turn from Trump and

the Justice Department for a minute and

talk about the Supreme Court.

This actually surprised me. One Supreme

Court Justice criticizing another. So,

during a talk at the University of

Kansas Law School, liberal Justice Sonia

Sotomayor criticized conservative

Justice Brett Kavanaugh, and she didn't

name him, but it was crystal clear who

she was talking about. Quote, I had a

colleague in that case who wrote, you

know, these are only temporary stops.

Talking about the stops that ICE was

doing to check immigration status. And

Justice Brett Kavanaugh had written,

they're typically brief and they'll

promptly go free, and they've been

called now Kavanaugh stops. And Justice

Sotomayor said, quote, this is from a

man whose parents were professionals and

probably doesn't really know any person

who works by the hour. I mean, Supreme

Court justices critique each other in

their opinions, but you don't often hear

a justice, in fact, I can't think of any

other time where a justice has

criticized another justice so openly and

so personally. No, but we use the word

unprecedented all the time now. It's a

our day and age where

it is about speaking out and taking

shots at people and getting likes and

clicks and attention, and I think that

takes its lead from the person at the

top, Donald Trump. I mean, that's his

style, and so you're seeing people from

all walks of life, even Supreme Court

justices emulate that, leaving no holds

barred. And so, I think that it is

unusual for a different time, but today,

should we really be that surprised?

I mean, I wonder what happens at the

next conference the justices have,

whether there's tension in the air.

Well, this is something very personal to

Justice Sotomayor. I mean, she's the

first Hispanic on the court, and she

sees that Trump's immigration policies

have targeted Hispanics, and in this one

in particular, which allows ICE to go

and question and detain people solely

because of race, because of the language

they're speaking, and she thought that

this would be unconstitutional to do so

because they don't have probable cause,

they don't have any evidence that

someone is undocumented other than the

language they're speaking, where they're

hanging out, and their race. And Justice

Kavanaugh had a concurring opinion that

offended not just Justice Sotomayor, but

others, especially progressives who

uh looked tone deaf where Justice

Kavanaugh was saying, well, you know,

these are just temporary stops, and all

they have to do is just prove that

they're not undocumented and they're

released. But in reality, it's a lot

more than that, and that's why people on

the left call them Kavanaugh stops to

this day. So, Justice Sotomayor is

reflecting the sentiments, the outrage

on the left. In 2024, she and

conservative Justice Amy Coney Barrett

would appear together. They made several

joint appearances to try to show, you

know, collegiality and civil

disagreement and to promote public trust

in the court. Amy Coney Barrett's key.

The reason why you don't want to mess

with Amy Coney Barrett because it's her

court. This is a Barrett-Justice Roberts

court because they're the two swing

justices. See, Kavanaugh doesn't get

that grace because he's not a swing

justice. He is seen as in the can for

Trump, and so Sotomayor is essentially

saying, well, you know, I'll take him

on. I would bet that if it was Amy Coney

Barrett who had that concurrence, she

wouldn't be as quick to lash out at her.

You make an interesting point, Dave.

Thanks so much for joining me today.

That's Dave Aronberg, former Palm Beach

County State Attorney. Coming up next on

the Bloomberg Law Show, some members of

the mob who stormed the Capitol on

January 6th are suing the government for

millions of dollars, claiming police

officers who defended the Capitol that

day were using excessive force.

I'm June Grasso, and you're listening to

Bloomberg.

Some members of the mob who stormed the

Capitol on January 6th are now suing the

federal government, asking for about $18

million in damages.

They claim they suffered physical and

emotional injuries from the

indiscriminate use of force by the

police officers who defended the Capitol

that day. The lead plaintiff in this

proposed class action is A.J. Fisher,

who was charged with assault before his

case was erased by the blanket pardon

from President Donald Trump. It will be

up to the Justice Department to decide

whether to fight the case or settle it.

Last summer, the department agreed to

pay out $5 million

to the family of Ashli Babbitt, a

January 6th rioter who was shot and

killed by police as she tried to enter

the Speaker's Lobby.

Joining me is Dennis Fan, a professor at

Columbia Law School and a former

prosecutor at the Justice Department.

Dennis, this isn't the only suit where

people in the January 6th mob are trying

to recover money.

Well, there's been definitely multiple

instances of, you know, trying to sue

the United States for damages. Uh

This class action is

one of those. Uh it's probably the most

recent one. No, most notably, Donald

Trump also uh there's reports that he

filed an FTCA administrative claim to

get something along the lines of people

taking like $230 million or something

from the government. I think this has

been [clears throat] sort of part and

parcel of what these January 6th rioters

have been thinking about. There are, of

course, a lot of individuals at January

6th who participated in it, and many of

them now that they've been pardoned or

have their sentences commuted, are kind

of coming back and saying, actually, we

are we were the good guys in this whole

thing, and it is the police that

assaulted us, not the other way around.

So, they're trying to rewrite history,

basically.

Yeah, I mean, I think they're trying to

rewrite history. I think that's probably

the best way to think about it, right? I

mean, the

former president, and one of the first

things he did was to blanket pardon all

of these individuals regardless of how

violent they were,

um regardless of what kind of intent

that they had. And that wasn't just to

get them out of jail, it was to make it

seem like they really were not culpable,

that they had no culpability, that they

were on the right side of things. And

it's a really kind of cynical way of

rewriting history where, you know,

people often joke that the the winners

write history, but that's truly what's

happening. It's that they feel like

because they won an election,

they hold the keys to the truth, that

they were they were right about

everything. But, you know, you can both

win an election and also be wrong about

the January 6th riot and the

insurrection.

>> Tell us more about their claims. Yeah,

so the claim is one under the Federal

Tort Claims Act, and FTCA is just a

broad

statute. You might think of, you know,

normally when you

get into a car crash with somebody,

right? Like you have a you have a tort

claim, and you can sue them in tort. And

what the Federal Tort Claims Act does is

it lets you bring tort action against

federal officers. So, if a federal

officer wrecked, you know, if a postal

truck hit you with a a their car, or hit

your car, you would you'd bring an FTCA

claim. You'd file an administrative

claim first with the government. Um the

government would either act on that or

not, and kind of pay you out or decide

not to. And then, if they didn't, you

would file a case in court under the

FTCA, and be just like any other kind of

tort case. And so, these these

individuals are claiming that

you know, the officers were negligent,

officers also intentionally kind of used

excessive force. You know, usually,

what happens in all of these things is

the main defense, or one of the main

defenses, is that the government says,

what we were doing was discretionary,

right? There's something called the

discretionary function exemption, which

is way down in the weeds of the law, but

what it means is if it's something where

the government had some discretion where

officers didn't have an exact playbook,

then that's a complete defense to a tort

action. So, you know, this might come up

when you have park rangers who are

fighting a fire. So, you know,

fire burns down a bunch of things. You

say, "Well, the park rangers who were

totally negligent." And you know, the

park rangers are going to come in court.

They're going to say, "Oh, look, there's

not really exactly a playbook on how you

fight a fire. Sometimes you start on

this side, sometimes you start on that

side, sometimes you kind of let things

burn for a little bit to let the fire

kind of burn out. Other times, you know,

you try to throw some sand over the

area. Other times, you kind of send in a

whole bunch of individuals. Sometimes

you don't send in that many. And there's

a whole variety of choices and there's

not an exact line-by-line playbook of

what should happen. And so, the

discretionary function exception will

almost always in those cases kind of

kick out a tort suit. I mean, that's

like probably what you would think of as

the right result here is you know,

there's not really a playbook for the

Capitol Police where when it's like or

there wasn't maybe there is now, but

back then there wasn't really a playbook

of like what happens when a a violent

mob tries to overturn an election. Like,

what is the What is like step one and

step two and step three of what you're

supposed to do? And that usually is a

defense. Do you think this case will

survive to a trial or will it be

dismissed beforehand? I don't think the

hope here is that they're going to

litigate this to judgment. They're going

to kind of finish the lawsuit and the

judge or a jury is going to rule on the

case and that they're going to get to

win.

I think they're hoping that

they're going to get settlement out of

this. I think they're taking their cues

and

they have maybe it's a a real view of or

kind of a realist view of what the

Department of Justice currently is like.

Maybe it's a

highly critical or cynical view of what

the Department of Justice is like, but I

think their hope is that they're going

to bring this lawsuit and then somebody

at DOJ is just going to say, "Why not

settle this with them?" I mean, there is

precedent for that, right? We had the

the Ashley Babbitt settlement for what,

$5 million

and Michael Flynn, the former national

security adviser who had pled guilty at

one point, he got more than a million

dollars.

I mean, the Justice Department can just

settle these lawsuits, right, without

any authorization from a judge or

anything like that. Yeah, I mean,

depending on how much money it is,

it can go up to different chains. If I

If I last remember correctly, it's like

maybe it's like $4 million or something

that had a different civil division can

settle the lawsuit. But then it's like

over that, then, you know, the attorney

general has to personally sign off on

it. Um, which kind of raises a whole

host of questions if these individuals

were individuals who might have also

engaged in criminal conduct, but that

they they could sign off on it. You

don't really I mean, these settlements,

you don't really have an ability to come

or kind of a strong ability to come in

and object to them. So, that's the real

danger of it. And I I think you're right

with the the Babbitt example and the

Mike Flynn example, they raise the kind

of a whole host of issues about how the

government has been using its authority

to settle these types of cases. And just

to say this boldly, but like, you know,

Ashley Babbitt, of course, like died in

the attack. She was shot. These

individuals are nowhere close to that

line. Like, they were kind of by all

accounts subject to what you would think

of as like ordinary crowd control

tactics. They weren't subject to things

that are

you would think of as

or nearly like excessive force, right?

I mean, it's stunning to me that they're

bringing a case like this

and just trying to rewrite history. I

mean, it's it's not even that they're

rewriting history, too. They're They're

rewriting their own history. I mean,

their history was that the Capitol

Police loved them and that they, you

know, ushered them in. And that's just

that

>> [clears throat]

>> they were complete hands of these

people. They were giving them tours.

Totally happy to have all these

insurrectionists at the Capitol.

And now they're saying, "Well, no, no,

they actually the Capitol Police were

the ones using excessive force and that

that they were kind of antagonistic to

these individuals." And they're like,

"Well, you know, which which way was it?

Is it Is it that they saw you as kind of

insurrectionists or is that they saw you

as kind of friendly visitors? Were you

innocent? Were you not? As I scan

through the names, but like, there are a

number of these individuals who

were members of the Proud Boys, all

right? And two were kind of charged as

such. I I think they can't even get

their own sort of historical narrative

right. And they're they're using it

selectively when it when it helps them.

It will be very interesting to see if

the Justice Department decides to

settle this case. Thanks for joining me

on the show. That's Professor Dennis Fan

of Columbia Law School. And that's it

for this edition of the Bloomberg Law

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