Sarah McCammon n.p.r. News Washington this is n.p.r. Support for n.p.r. Comes from n.p.r. Stations other contributors include Progressive Insurance comparing car insurance rates from multiple insurers so shoppers can evaluate options in one place now that's progressive comparisons available at progressive dot com or 1800 progresses . This is greater l.a. K.c. R.w. Show that connects you to the people and the places of Southern California. More than 7000 miles away from here is a place whose politics matter to a lot of Angelenos a lot of folks are closely watching Israel's parliamentary elections with l.a. Home to some of the largest Jewish and Palestinian communities in the world including Zev Oh posts who is very involved in local Jewish life you know a lot of the community cares a lot about what the next chapter of this evolving Jewish state looks like in a lot of cases they are what's important to them is that it does remain democratic progressive values and of the same time coexistence in a secure fashion so that Israel you know it does not face an exodus Nigel's threat most so far the election results are inconclusive current Prime Minister Benjamin Netanyahu and his party are well short of a majority his chief challenger a man named Benny Gantz he may have won more seats in this election so what happens next is still very much up in the air and with more case here Benjamin Gottlieb joins us here in the studio Benjamin helos the of us the latest on the election right now the numbers of what's likely to happen next so Israel has a parliamentary system of government voters officially elect parties and not candidates and then each of those parties tries to secure a majority in the parliament the Knesset and put its person forward to become the next prime minister. Now what's become kind of the norm in Israel is that no party wins outright majority and so what they need to do is form what's known as a coalition governments by banding together with others the current Prime Minister Benjamin Netanyahu is from the party a longtime political figure in Israel army veteran and now Prime Minister for the past decade or so in a very polarizing figure for sure what about his main challenger there his main challenger is a man named Benny Gantz on or the blue and white party it's a centrist group and there is some hope among some of the more left leaning folks that if it were able to form a government the country would move away from some of Netanyahu is more hardline policies and I emphasize hope because there's also a feeling that both of these parties may actually be very similar in their policy right now the 2 parties appear to have secured a similar number of votes with a head by maybe one seats and so the question becomes who will be able to put that coalition together so what does it mean. What does it mean for the future of the current Prime Minister Benjamin Netanyahu who has a lots and I cannot emphasize that enough a lot riding on this election he's facing corruption charges bribery fraud etc and I asked Jessica about the stakes She's a professor at u.s.c. And she studies among other things Jewish Arab relations in the Middle East the 1st politician in Israel to be charged with corruption and. That you know many. It certainly seems like part of the reason that perhaps he was unable to form a government the 1st time around back in the spring was precisely that he was making kind of outrageous demands from his potential coalition partners to you know protect himself and see what he says protect himself what she's referring to as protect himself from going to jail the investigations obviously going on there so so what is important Benjamin to Israeli and Jewish Angelenos who are keeping a close eye on what's going on over there like any big election in the u.s. For example it's very hard to generalize you didn't hear from him. Take a listen to his take on this although I don't agree or condone Netanyahu is corruption if Netanyahu would win I wouldn't be mad I could be one of those people who can overlook you know particular downfalls of b.b. In order for Israel to stay a secure state as it's been you know in the last 10 or so years 10 or so years the tenure of b.b. Security a major consideration for Zev but he also told me that he's happy with some of the socio economic trends that he's been seeing in Israel and among members of the diaspora Now not everyone is willing to overlook Netanyahu shortcomings I caught up with on the phone he's Jewish in his seventy's works in real estate here in Los Angeles he's originally from Haifa which is a small sets of actually a big town in northern Israel and he came to the us in the 1970 s. When you know he was so drug informant of the mob. So you know yes he lies a lot. That's right no none of this really politicisation you know also into a dime a dozen These are not for any change do you think that's a Yahoo belongs in a jail cell Oh absolutely. Not mincing words there there's already been an election this year though Benjamin a few months back this is the 2nd one is there a possibility that this whole thing falls apart absolutely and that's what we're all watching here is a week continues All right so what about local Palestinians members of the Palestinian Diaspora How are they looking at the results of this election so far I'm really glad you asked that because it's important to remember that the vast majority of Palestinians cannot vote in this election there is a sizable Arab population in Israel that have citizenship and can votes it's about 20 percent or so of the population of Israel according to some recent government figures and actually the Arab coalition did relatively well this election however with many things in Israel the identity of Arab citizens is also very political. Many if not most Arabs living in Israel self identify as Palestinian and historically they have not turned out to vote because they haven't felt they were represented although that may be changing with a coalition of Arab parties coming in 3rd place this time now I spoke with sorry mom about this he's a professor at u.c.l.a. And author of Palestine inside and outs and he says Palestinians living in the diaspora see the Israeli candidates as really different representations of the same policies which is continued Israeli occupation continued Israeli domination of Palestinian life continued refusal of the right of return of Palestinian refugees living in exile and more of the same and on and on essentially it's a yeah I mean there's not really going to be much of a difference the difference if there isn't a difference in the packaging rather than in the substance in my packaging what he's referring to is how Israeli politicians talk about the realities on the ground the Israeli occupation as he puts it of the West Bank and Gaza the illegal settlements in the West Bank those issues I have to point out that many Israeli and Jewish Americans would disagree with that characterization of what's happening in Israel with the Palestinians nonetheless says that actually Palestinians would prefer an honest representation of in his mind the realities on the ground many Palestinians would prefer to have an Israeli leader who like Netanyahu blunt and in a way you know better than kind of prevarication an equivocation and plays and deferral of of honesty which doesn't help anybody I don't think particularly like you saying the devil you know yeah but also part of the reason for this is what mocked as he describes a growing trend not just in academia but among Palestinians and in the diaspora as well of abandoning the 2 state solution which we've talked about a lot you've heard about a lot viewing the Israeli Palestinian conflict as something happening inside of one state so when you start to do that all the arguments that label Israel as for example an apartheid state the boycott divestment movement for example through that lens those. Those things start to look a lot differently than when you're talking about 2 states and he added that that many Palestinians are fed up with their own leadership and Hamas as well so when are we going to know whether Bibi Netanyahu is in a courtroom or continuing as Prime Minister Well it's very hard to say that the present of Israel has an important role here seeing who could put together a coalition if a unity government should be formed this is a collection of parties with widely different views generally the party with the most votes gets a 1st try a 1st pass at forming a coalition that's not always how things turn out so the unofficial count right now has Netanyahu and is the coup party falling behind by one vote Challenger one vote . All right well we're going to continue to watch this is the rest of the world does indeed what happens in Israel who will form a government how that will affect the lives of Israelis and Palestinians alike Benjamin Gottlieb Ben thank you and it's I'm. In the last stretch of. Pledge drive What's that you didn't know we were in a fundraiser what Yeah that's because we're doing the seconds at a time no interruptions of the programming just my telling you for like 102030 seconds that we're here asking for your support of public radio you get what you always get and we only ask you to think about what you get the programming quality journalism cultural and music shows that make you happy or make you think and if you contribute now you're going to automatically be entered into a special sweepstakes where you can win an all inclusive pass or actually come to Wilco's Sky Blue Sky festival along Mexico's Riviera Maya. W dot com slash joining is how to do it and thank you for your support coming up a plastic spill in Sacramento the last day so what's next in an effort to deal with plastic waste it's greater l.a. . With this tone of voice I could. Put in fact it is Henry Rollins here. Prescribed medications and. I just want to remind you. Slash joined before then and thank you. Support comes from the broad stage in Santa Monica presenting global phenomenon Jake Shimabukuro don't miss the musician hailed by the New York Times as a master of the ukulele performing original tracks and stunning takes on a classic rock favorites one night only Thursday October 3rd at 7 30 pm tickets at the road stage door 431-434-3200. You're back with greater l.a. On k c r w m speech here take this if you were listening to press play in the last hour you heard Casey r.w. Reporter Kelly Wells describe her experience trying to live without plastic for a week spoiler alert she found it just about impossible and last week on this show Casey our W.'s Warren only reported by how plastic is pretty much everywhere these days more than half of all the plastic in the world has been manufactured in just the last 13 years can you believe that part of Warren's report was a conversation with santa monica state senator Ben Allen he put forward a bill to eliminate 3 quarters of all single use plastic containers in the next 10 years but the legislature adjourned last week without voting on that bill we wanted to follow up on it so Senator Allen joins me right now high here they're going to hear from you what happened what do you think the bill failed to get enough support from your colleagues there. Well it's a it's a convoluted and complicated story and I actually don't believe that it failed to get enough support from my colleagues I think we actually had the votes to get off the floor but the day became a crazy day for a number of factors there was a maybe another major competing environmental bill that was in the mix there was a lot of obfuscation and lies being thrown around by just a few lobbyist I think that confused the matter a little bit we had you know an anti vaccine protester who threw menstrual blood on to the Senate floor which delayed the proceedings pretty considerably and I think led to a lot of tensions between the 2 houses and in the end of the day it became a casualty of a lot of the the last minute kabuki theater of the final day of session you know I'm taking a lot of lessons from this experience about engaging leadership a little bit early not waiting until the last day to get these bills through and in the end of the day I think we just have to keep telling the story to our colleagues in and everyone who can listen about how incredibly important it is for us to step forward and actually take ownership of this this crisis that we have the guys to waste management I think you know we basically had to deal tied up in a bow by Monday you know the American Chemistry Council had stood down we would enable to negotiate a deal with them the American Beverage Association the retailers the grocers a whole number of industry groups so I think we're actually very well placed to get this across the finish line in the coming year and I'm looking forward to making sure that happens Now you mentioned lobbyists were you know there were some obvious cation there were you know some words from lobbyists that may have muddied the issue the plastics industry the fossil fuel industry they both oppose your bill what do you say to them to get them on your side you said you got chemistry companies and things like that on your side and the grocers and beverage companies what about what about the plastics industry Well the American Chemistry Council actually involves a lot of folks in there in the plastics industry and they were the ones who took the lead in the past in opposing. Bag ban in the micro beads and micro plastics work that has happened before the legislature so you know what we say to them is look we are obsolete determined to do something about this we have to reduce our waste we're not putting you out of business we're just asking you to shift to a more sustainable model there are things that they can do to significantly increase the recyclability reusability compost ability biodegrade ability of their various products and we need to to shift them in that direction so so how does your bill do that then what is it about your bill that you think well everyone can be on board with us well in the end of the day what we do is we set out big goals out into the future but we have a long runway a lot of time to get to those goals and we set up a very robust stakeholder process that that thoroughly engages industry and I think into the day that's what made the American Chemistry Council feel more comfortable with what we're trying to do we we made sure we built in all these opportunities for them to weigh in to be heard to be engage with to be to be sought after for their input and their advice and they would be an essential piece of the of of helping us come up with the solutions the interesting thing about all of this obviously is the fact that China has stopped taking a lot of plastic recycling from the United States from a lot of countries in the world so the bottom is has kind of dropped out of that market and a bunch of recycling centers have shut down as well that means landfills and the environment getting inundated with plastic garbage How do you see us getting out of this mess I mean obviously your bill is trying to mitigate that but there's something I think a little more urgent in in what China has done absolutely what the bill does that I think is is so important is that by setting targets in goals it will send really strong market signals out there both to the manufacturing folks but also folks who work in the waste management space to help to reinvigorate investment both in more sustainable packaging but also in the recycling infrastructure. Because the bottom has fallen out on the recycling of a structure that has led to a situation where investors just don't feel a lot of confidence investing in reboost ing and rebuilding the recycling infrastructure and one of the things that's so important about our bill is that it will help to reinvigorate the recycling infrastructure by creating recycled content standards and by by by creating a set of government backed goals to ensure greater recyclability I want to read to you what would Shannon Crawford you may have seen this she's the executive director of state government affairs for the plastics industry association who said quote We remain opposed because we think there are some fundamental flaws in the bill which would prevent it from being implemented how do you how do you respond to that you know that is that the obvious thing for anyone who stands to lose you know by the by the bill to say I just I hope that she will take a cue from the many many industry folks who sat down with us through the course of the summer and understood that what we were doing was reasonable that we had built in tons of off ramps that we built and lots of flexibility lots of room for engagement you know there are some organizations where they have a few members who are excited about trying to get on board something like this and they they take a proactive stance and they say hey let's try to make this work for our members who want to do the right thing and there are other groups who represent folks who just just don't want to get there and a lot of them are folks who are based out of state and we did we saw a really interesting dynamic between some of the in-state folks or some of the other folks that were there were there were really working hard to be more sustainable and those that just didn't want to change their business model at all and you know I just hope that she will listen to some members of the industry and understand that the state of California is dead serious about doing something about this and she will either be part of the solution or not the association is cited children's food products and toothpaste those things that need see. Use plastic and would be much more expensive if your bill goes through how do you respond to that and you know again the words are fundamental flaws which would prevent it from being implemented I mean those are the types of things where they say there could be a real problem in going forward well we had folks come in to talk to us over the summer about infant formula for example and we were able to get some language there that made the folks who made the infant formula products feel more comfortable we are totally open to reasonable and changes to the bill but we are not going to go away and we are not going to standing down from from the broad goals of the bill so let's have those conversations over over the over the fall I will say I think that the claims that she's making are a little overblown I think there's a way to get there the question is going to be are they willing to to work with us on finding a solution to their problems or are they are they just going to try to keep throwing in monkey wrenches State Senator Ben Nelson of santa monica Senator thank you we appreciate it thank you so much for talking us today and we asked Shannon Crawford from the plastics industry association to join us today she was unavailable but she did send us a statement quotes while we remained opposed to s.p. $54.00 due to fundamental flaws that would have prevented proper implementation we were encouraged by the final round of amendments which we believe were the result of significant discussion with the legislature with legislators I should say we continue to support the overall intent of this bill to increase the proper recycling and recovering of all plastics and it goes on to say that we quote changed our position to neutral so perhaps some good news for Senator Allen's bill going forward. There may be an effort by lawmakers to regulate the amount of plastics being made one artist is trying to take all that plastic waste and turn it into artistic beauty artist most Talk of the walk. Has work over at the nicotine gallery in downtown l.a. Talk of is from Zimbabwe and he says through his art he wants to make a statement about consumerism and plastic waste by utilizing all those items that you throw away day in and day out an item that wind up in all different kinds of places on earth particularly his home of Zimbabwe our art insider Lindsay Preston Zappa's is utter and chief over contemporary art review Los Angeles and she visited this exhibition and she joins me right now hi Lindsay Hi Steve so when I say a waste we're talking about like this plastic waste is specifically from America yeah so waste is a huge problem in well in the world but in Zimbabwe and not only is in landfills but it spills onto the streets and it's really part of the daily fabric there but a lot of this trash literally is being shipped there from America from Western European countries and the government is selling parcels of land to take on trash and refuse from other countries so the countries making money from America is paying Zimbabwe Hey take our trash and not just isn't Bob way but Southeast Asia actually read this quote that says it costs more money to move a bale of trash across Los Angeles than it does from l.a. To Hong Kong and so are. The ones up in Zimbabwe this is where our talk of lives and he takes this waste any makes it into what they almost look like tapestries at 1st he's using things like keyboard keys tooth brush. Mountain Dew caps and he's weaving them together to create these gorgeous tapestries that you know reference a lot of African patterning in African we've seen the work has this really interesting thing that from far away you see the color and patterning and composition and then as you get closer the material kind of pops out as you did any piece and out to you was there something there that you were like oh yeah that means a lot or. Wow That's that's pretty heavy Yeah I mean each work kind of focuses on specific materials so there are some that focus on keyboard keys for instance these he collects from South Africa so he's going to landfills in both Harare where he's from in Zimbabwe but also South Africa for more of the tech supplies I guess and the artist is using the keyboard keys specifically to talk about kind of colonial imprints on Africa and Zimbabwe and the English language hello so I think by deconstructing computer keyboards and then reweave in those letters together he sort of inventing a new structure and new language well when I think about all this the 1st thing that came into my mind was oh my gosh he's probably hates us all right like all our trash from America or much of the trash in America winds up in other countries in the world particularly Zimbabwe one of the countries it takes are trash and he's looking at this and being like you know gosh you people are a bunch of slobs or you know I mean right I mean like what is it what is the intention do you think together what is his relationship with this stuff it's complicated right because I think really he's an artist an artist seek out beauty is so at its core these works you know they're very confrontational in that and as Americans it's easy to feel like he's confronting us with our own trash our own problems so then you know if you think about it that way it becomes a really potent intelligent thing that he's doing like he's taking trash that we're shipping to his country sanitizing it we've seen it together repurpose in it into these gorgeous textile pieces and then shipping it back to us and making a lot of money off of these works that then goes back to supporting his communities so it becomes you know he's kind of using and working within these systems that are very. Oppressive and very problematic but he's finding beauty within and really is seeking out beauty and hope and wants to bring that back to his community what did you take away when you were leaving I think the work really unfolds right so at 1st I was really struck with just the beauty of the pieces they're highly skilled highly detailed works but yeah then as I said I'm struck with my own waist and I'm on my own personal kind of a single use plastic journey is so you know I was very struck with that these works are filled with single use plastic but then you know you start to consider the artist's contacts and the context he was living in and kind of these like colonial forces that have oppressed him for so long and you know the artist really doesn't separate environmental issues and political issues like he talks about that as one thing and I think it's great timing with the climate strike this Friday just to sort of reconsider how all those things are connected and really kind of shine a light on that and look at what this guy did with all of that waste Yeah right Tucker he was exhibit some of the soil is what it's called is on display over the nicotine gallery through October 19th Lindsay Preston's upis are inside it once a thanks thanks so much you can by the way check out some photos of this exhibit incredible and sign up to receive Lindsay's weekly art insider newsletter at k.c. r w Dot com slash greater l.a. . Well that's it for today tomorrow the industry is called goods movement think Amazon its fulfillment centers are increasingly becoming automated What does that mean for the where there are so many of those warehouses dozens and dozens of them next time k c r w All the President's lawyers. You guys still Richard. And Chris. Make this show happen and speech. Slash great thanks for your. Have a great day. It was at all. Well he was a lawyer for me for one of many hey you know they they would say the lawyer and then they like to add the fixture Well I don't know if there's a fixer. Already knows what. Started Yes. He'll get his facts right I understood Michael Cohen very well. What turned out he was a very good lawyer frankly. This is Josh Barrow host of case here W's left right and center you're listening to All The President's lawyers a special series from left right and center this show is all about President Trump's legal issues which are complicated they bring up really good questions about free speech and defamation and Twitter and whether you can assert testimonial privileges related to being a top adviser to the president even if you have never worked in the White House it was clear we need to vote some time every week to answering some of these big legal questions so I called Ken white Ken is a criminal defense attorney in Los Angeles and was formerly a federal prosecutor Ken blogs about a lot of hope out dot com He hosts the 1st minute podcast make no law and he's my co-host and legal navigator on this show Hello Ken Hello Josh in the interest of full disclosure unavoidable scheduling conflicts have required us to tape this week's episode on Tuesday instead of the normal Wednesday morning taping we do so we're taping right as former Trump campaign manager Corey Lewandowsky is before the House Judiciary Committee answering questions or really trying not to provide meaningful answers to questions this is the House Judiciary hearing where members wanted to hear from Lewandowsky and former deputy chief of staff Richter born and former staff secretary Rob Porter they want to ask about possible incidents of obstruction of justice that are described in the report but most are in Dearborn are not appearing citing privileges related to their former roles as top White House advisers to the president Lewandowsky has never worked in the White House so he is appearing but the White House has instructed him not to air. Questions about his dealings with the president are senior White House staff after Trump took office so can 1st of all during committee chairman Jerry Nadler says this hearing is an impeachment hearing is an impeachment hearing Well it is if you wanted to be you don't have to do anything magical to make it start being in an Pietschmann hearing and he proclaims that as one then you can treat it as one but that statement might be intended to shore up the Democrats' chances to compel testimony and compel documents in litigation that's currently going on Ok we'll talk about all of that in a little bit so let's talk about why the witnesses that they're seeking either didn't show up or aren't being as useful as they hoped for the White House claim that there is an absolute immunity for top White House advisers to testify about their interactions with the president what's the deal with that claim my understanding is the Trump didn't come up with this idea that this is a claim that we have heard from the Bush White House and from the Obama White House previously right and it was always made up there's no basis for it's just a pure assertion that really important people in the White House have some sort of privilege not to have to testify the legal basis is purely speculative it's you know asserted that just based automatically naturally based on the structure of the government without any real precedents no cases establishing it no laws saying that it's there and we have heard it in multiple times and so far it's always been negotiated away or one side or the other has backed off so that it's never gone to court for a definitive ruling on whether or not it exists which it does not so is it possible that we're going to end up in court over that this time I mean it seems like this Congress and this administration are in less of a good position than previous ones to come to an accommodation my understanding when we've talked about this previously is that you think both sides are sort of afraid of what the courts are going to do if they get there and seek a ruling on this so is that are they going to find a way to avoid getting that ruled on again this time. Right well it's it's like any other tool in government everyone is thinking a little bit about whether they might like to use it when they're in power when they're in the White House so they are thinking they're not entirely sure that they want to get a definitive ruling that there's no such privilege in cus they want to use it in the future and they're also if they're if it's the congressional Democrats they may not be entirely sure that the court will rule their way you pick the wrong judge and who knows what you get although I do think that it's a very weak claim that the privilege exists and that any judge who found it would be making up out of whole cloth so my understanding of the argument for the existence of this privilege for top advisers is that it has to do with what I think is not a very controversial idea that the president himself has has a privilege against being hauled to testify before Congress so is that is that claim of privilege itself controversial or is that that privilege is real but it clearly applies in your view only to the president himself to the extent that exist only applies to the president and we already have another privilege that that helps the president in his interaction with his advisors and that's the other one that's at issue this week the executive privilege which covers communications between the president and his top advisers and employees in the White House so theoretically that ought to do what you're trying to do by immunizing these people from talking entirely me except that the that privilege is not absolute right there they might still have to appear and there would only be certain questions they could decline to answer because they would implicate executive privilege Exactly and that's why they're calling this other one Immunity basically that you can't even haul them in to Congress to testify they don't have to answer any questions executive privilege you have to show up and you have to invoke the privilege on the record and then they can you know try to force you to say why you think there's a privilege and they can challenge it and core. So then what do we make of this claim regarding Lewandowsky where he's shown up but the White House has instructed him not to answer questions about his dealing with the president or a senior advisor to the president and claiming that there is some sort of privilege that extends to him such that he should not answer those questions even though he has never worked in the White House well one of the members of the committee referred to it as a crony privilege because you know executive privilege is understood to apply to appointees and employees and people in the White House who work there in here it's being used to apply to someone who never worked at the White House was never never had an official role in the government who did have a role on the truck transition team between election and inauguration and that's the hook they're hanging on the idea that he must have had communications with the president that might go to the deliberative process sees that eventually led to policy wants Trump took office but that would be a dramatic expansion of executive privilege because the president's talked to all sorts of people who aren't formally part of the administration many of them through out history of had advisors in academia or business or politics who talk to them and if they can start calling all those people as falling under the executive privilege that dramatically increases the zone of secrecy and so the remedies available to the committee basically do they have any remedy available other then going in seeking those court rulings about the extent to which these privileges and immunities exist and so if the committee is not willing to do that then basically they'll have to take whatever testimony they can get from these people. They could order him to answer claiming that it's not a good privilege and ask for him to be prosecuted for contempt of Congress that's not going to happen they could have theoretically the Sergeant at Arms arrest him I don't think that's going to happen that we kind of felt so it would be I mean you got to think that guy's job is pretty dull most of the time or they could go back to court to you know get in line with the other dozen cases about the conflict between Congress and this administration and what Congress is entitled to get speaking of those dozen or so other cases the committee is still fighting with the executive branch over underlying materials that helped put together the mother report among the materials the committee would like to see are grand jury materials from the Muller grand jury and the Justice Department says it legally cannot produce those materials to Congress even though Congress would very much like to see them so there's been a lot of outrage on Twitter from Democrats about the Justice Department trying to conceal these materials from the grand jury My recollection is that you think the Justice Department actually has the better of this legal argument about whether these materials should be produced. I think they certainly have a strong argument you know as we talked about before Josh grand jury material is secret and it is governed by a specific written rule not by just a judge's discretion so for a judge to allow grand jury material to be released it has to meet one of the specific exceptions in the rule and we recently had a court say basically you can't just do it because it's historic and important you can't make up a new exception engrafted on the statute here the legal dispute is a slightly wonky one the question is what is a judicial proceeding so the Democrats are arguing that what's going on in Congress is a judicial proceeding that maybe if the Senate were trying the impeachment case that would be a judicial proceeding or maybe if when Congress is deciding whether to impeach that's a judicial proceeding and the government the White House is saying no it's not I mean it's you don't have a judge judicial proceeding the way it's defined everyone else everywhere else is something that happens in court with the judge this is something different if they wanted to mean that they can go to Congress they could have said that in the rule complicating that it this is that there are series of cases about this from the Nixon era that allowed some grand jury material to go to Congress during impeachment but didn't really explain why so it's I would say it's a somewhat tough call but this is not a frivolous or ridiculous argument by the administration it's actually a very defensible one if there were an impeachment trial of the president it would be presided over by the chief justice of the Supreme Court there would be a judge and that would be I think probably the absolute best argument for it being a judicial proceeding and what the what the White House is doing is saying none of his judicial. And even if something is judicial it certainly is certainly is one of these hearings where the Democrats can't even commit to conclusively saying we're starting Peter proceedings right and so that takes us back to where we started 11 key question as you know even if impeachment could be a judicial proceeding that would get to one of those exceptions where you are allowed to release grand jury material is this impeachment that's going on and is it good enough that Gerry NAVL was out there saying that this is an impeachment hearing does that make it so and in fact one of the things that the Department of Justice points to and it's brief arguing that the material should not be released they have statements from other members of Democratic leadership saying that what's going on is not an impeachment proceeding but then I guess the question is does it matter what people are calling it because that would normally not be a good way to construct a rule like this you don't want people to just be able to say well this is x. And therefore I should get into the exception you would want to be more substantive than that presumably. Right and generally the law in this sort of situation looks more substance than labels I think the judge in this is going to have to look at these Nixon era precedents and decide whether or not. Anything in Congress can be treated as just a proceeding and then really say well what really makes one what starts one and I don't think the judge is going to accept the proposition that just any hearing that could lead to more hearings that could lead to an impeachment proceeding is going to qualify the emoluments cases are back or one of them anyway these are the 3 cases about the foreign Emoluments Clause whether the president is violating the Constitution by receiving payments from foreign governments or entities without approval from Congress to receive those payments this is not to be confused with the domestic Emoluments Clause issue we discussed last week that has to do with whether it's there's anything improper constitutionally improper about Air Force personnel staying at the president's resort in Scotland at government expense that is a separate issue so in this case about the foreign of all humans clause a federal trial judge in New York had thrown out one of these suits this was the suit that was brought by the liberal pressure group Citizens for Responsibility and Ethics in Washington the suit is on behalf of hotels that compete with Trump's hotels so anyway this suit had been thrown out a while back now a 3 judge panel of the 2nd Circuit Court of Appeals has brought the case back from the dead what is their reasoning for doing so. Well they thought that the trial court construed standing too narrowly this is again a standing issue which has been the bane of all of these cases. In the lower court the court basically said it's speculative as to whether or not these hotels are suffering any sort of harm because people might want to go to the president's hotels to curry favor with the president and the administration and that is I mean we don't know whether we don't know necessarily whether that's happening and even if we do we don't know whether they would have otherwise stayed in the hotels of these people or so are exactly like you know if the government of France if they're staying in Trump Tower is it because they want to curry favor with Trump do they just like the rum service that they have terrible taste it could be any one of a dozen reasons that they're there and that was the point of the lower court judge . The Court of Appeal took a more traditionally lenient view of what someone has to prove at the beginning of a case as opposed to later on in the case and said that they've alleged enough facts to raise the inference. That there is a connection there and that they are suffering harm as a result of this idea that people are going to Trump properties in order to get. Anticipated good treatment by the trumpet ministration They also took a different tack in terms of what the remedy is because one element of standing is whether or not a court can do anything about the harm you're talking about and they didn't really get into the deepest and most troubling questions which is whether you can order the President to you know put his portfolio in a blind trust or something but they did get into ideas that they could. Use rules that stopped you know Congress could pass laws or there could be orders that could to some extent stop. People from going exclusively to the Trump properties or stop the Trump properties from offering special deals to get those people so other appellate courts I believe this is the 3rd time minimal humans' case has gone to an appeals court because you have the 2 other cases they both got up to the appellate level already and those appellate circuits have been a lot more negative on these cases when they have touched them so is this is this a circuit split now is this something where the Supreme Court's going to have to rule or is it that the Da shoes that have been presented in the various different courts have been different enough and preliminary enough that this will kick around the trial an appellate levels for a good while before it possibly gets to print court. Well there is a split now between what the 2nd Circuit which is generally more on the liberal side and a 4th Circuit which is generally more on the conservative side have said but I don't think the 4th Circuit case is ripe for review by the Supreme Court yet because they've sent the matter back down to the trial court for some further proceedings the 2nd Circuit case though could be right back after this and the supreme court might decide to accept it I would not be surprised at all if there is a petition for cert after this decision and we will then see whether we get this much vaunted effect that people have been talking about since the beginning where we can expect the Supreme Court newly constituted with. Such an kavanah to vote to do things that will slow down these types of lawsuits against a president before we take a break we want to recognize and thank some more fans of all the president's lawyers who became case here at all the members in the last week Caitlin Stam and Garden City New York says my week wouldn't be complete without a t p l n l r c They make me feel smart when there's so much stupidity in the news thanks Casey or w. Thank you Kaitlyn and thank you for supporting case your w. Joshua Gottlieb threw down a challenge he says in support of all the president's lawyers all make another donation if Josh Barro finally addresses the elephant in the room is Ken White a good lawyer so can are you a good lawyer. You know get by Ken's being honest I am pretty sure that Cam is a good lawyer at least today Joshua tweet us a screenshot of your 2nd donation receipt please you promised thank you to everyone else who became a member this week you can still show your support for the show and pick up on all the president's lawyers swear jar those are available through next Tuesday so this is the last time we're going to mention the swear jar on the show do it now before you forget go to k. Start of your dot com slash join and again thank you when we come back we will talk about Andrew Mackay listening to all the. Residents lawyers. Late Semel is a human rights lawyer who defends Palestinians accused of attacks in Israel for that she's been called a traitor and a whole lot worse a new documentary tells her fascinating story and asks for justice even for people might hate the document will screen advocate for case here to be members on Tuesday the 24th in Beverly Hills followed by a talk with the directors and their subject go to Case here to the dot com slash screening for more information and reservations if you're not a member yet support history to you during the undress and we'll see there this is Josh Barrow and I'm back with Attorney Ken white on all the president's lawyers can we have a listener question about former f.b.i. Deputy director Andrew McCabe McCabe got fired from the f.b.i. As a result of an inspector general report that said he had lacked candor when talking to investigators about the circumstances of a leak of information regarding an investigation into the Clinton Foundation McCabe says his firing was actually retaliation by Donald Trump related to the Russia investigation and Trump has made public statements including on Twitter that would tend to bolster that claim we talked 3 weeks ago about McCain's efforts to convince the Department of Justice that he should not be indicted over lying to federal investigators over the same matter for which he got fired and now listener Seana Lucy asks what's going on with the case against Denver McCabe the grand jury declined to return an indictment now can't shut up put a period at the end of that statement about the grand jury declining to return an indictment but my understanding is it's less clear than that that we don't know if the grand jury declined to indict Andrew McCabe or not so before we talk about McCabe specifically can we talk about this process generally So ordinarily a prosecutor goes before a grand jury to ask that someone be indicted if they do that that's called a true bill if they refuse that's called No Bill it is very rare for a prosecutor to get no bill back from a grand jury right. Yes it's very rare with the exception of cases of police shooting people in which it happens all the time. But it's notable enough that I only saw one in the 6 years I was a federal prosecutor and generally it represents something about the case resonating with the grand jurors in a way that they don't like it's sometimes you quit a lot of jury nullification before you even get to a trial jury and sometimes it's a reasoned cation of the standard finding that this isn't probable cause so do we have good reason to think that it's likely that that happened in this instance there was a letter sent from McCabe's lawyer to the just saying that they had heard rumors that this might have happened what we do know is that there was a grand jury that had been dormant for months that got called back and on Thursday of last week just after the Justice Department had indicated that they were not going to overrule the u.s. Attorney's office in Washington d.c. That was going to seek the indictment of McCabe and so I think people thought that all the grand jury came back is going to return the indictment but then we didn't hear anything so is that a good reason to think that they called the grand jury back they asked them to indict in the grand jury said no. It's a it's a reasonable inference it's not the only inference they could have called them back to take some more testimony to put in some more evidence until they eventually do seek the indictment. And it's possible that they have a few more you know avenues they want to travel down based on the pushback they got from the McCabe camp which could have educated them about what the weaknesses in the cases were but I think it's more likely than not that the grand jury returned a no bill I say that because the McCabe's attorneys are being very aggressive pushing the notion and I think that unless they had pretty good reason to be certain they wouldn't do so because they'd wind up looking foolish if he just got indicted the next week I think it would destroy their credibility to a certain extent so I think they have some good intel and there are lots of ways for a no bill to leak precisely because it's so unusual it would be the talk of the courthouse and there are lots of avenues through which that information could leave Is it possible that he's already been indicted under seal because sometimes there's an indictment and it's not announced even though it exists you know it's true you can have it under seal and only unsealed when they decide to do the arrests and the initial appearance and we've seen that occasionally in the course of the investigation but so the usual reason you might do that would be I mean it's like things that are associated with people cooperating and that sort of thing and so it interferes with an investigation for it to be publicly known that someone's been indicted that presumably would not apply here so what would be the reason for indicting McCabe under seal if he'd been indicted you might do it if you were going to do a bunch of search warrants when you arrested him and didn't want anyone to know about them that's more or less what happened with Cohen you might do it if you were arresting more than one person and you wanted to be ready to do a big takedown and nobody flee you might do it if you thought he was going. Fleet which seems extremely unlikely. Or if there was something else some other part of the operation you were preparing to do that you weren't ready to do yet but someone like McCabe those don't seem like particularly good explanations for it so again to your point that's that's part of why you're leaning toward the idea that it's true that the grand jury was asked to indict and they declined That's right and so once that happens then a different set of guidelines from the Department of Justice manuals kick in you now 2 you can go back and try again with a grand jury but it is discouraged there are things you are supposed to consider and you have to take it to a higher level so you have to get the approval of the the u.s. Attorney for the district in order to do that the idea being it's a pretty momentous step you're trying to get a 2nd bite of the apple to get somebody is liberty and someone higher up with a cooler heads should look at this but so those higher ups have already weighed in on this right I mean we know about the meeting that Mackerras lawyers took at main Justice I mean I guess they'd have to weigh in again they have they've even if they decided that yes they should seek the indictment it would be a new decision to decide yes they should seek the indictment again even though the grand jury refused the 1st time say you know maybe maybe that would give us pause in certain circumstances but we've considered a no we really want to we do want to see this a 2nd time. Absolutely and that would you know that would give him some arguments about potential selective or vindictive prosecution of the sorts that we've seen from various figures in all these investigations if they did something as very unusual as going back a 2nd time and that's the elephant in the room here it's clear that the president wants McCabe prosecuted and so to your point if they you know if they sought if they finally got him indicted after having to go to more than one grand jury to get that done that would strongly suggest that something had been unusual influence down from the top also you know corroborated by public statements the president has made. Exactly and if this hits the news you know there's no guarantee you get that indictment from the 2nd grand jury maybe this one just had enough freethinkers to get the Nobel or maybe the news about all this is prevalent enough there in d.c. Where this is happening where it's going to be hard to get from any jury you know Josh you pointed out that we saw recently after an acquittal that a jury said you know what are you doing this for when the Republicans burning that may be the sentiment behind these grand jurors you know that was the acquittal of Greg Craig the former Obama White House counsel who had gotten caught up in the Ukraine mess for which Paul man afore it was prosecuted there was an investigation of various other lobbyists and so that quote from that juror saying he was deeply offended personally that this particular case was brought against this particular man unquote Finally I want to talk about some action from the Manhattan district attorney who is seeking Trump's financial records and tax returns from his accounting firm both financial records relating to him personally and to the Trump organization this is related to the Manhattan D.A.'s investigation into hush payments to Stormy Daniels the u.s. Attorney's office for the Southern District of New York had investigated this matter but the only person they ended up. Criminally charging over it was Michael Cohen Manhattan d.a. Is a is looking to see will you know where there are other people who the feds didn't go after who we conceivably could anyway so I can certainly see how these financial records could be relevant to that investigation but my main question is will we see them and if we see even part of them will we see them in their entirety because my understanding is you know even if they issued a subpoena they obtain the records they can only disclose them as part of a trial right. Right only on order of the judge so I'm not as familiar with New York's Ranger research secrecy law but in general they're not supposed to come out unless the judge says they can come out so you might see them. Turned over in discovery if someone gets charged and that's why a judge's order you might see them used as exhibits at a trial and of course in 29000 you might see some of them leaked because that happens but what comes out and how it comes out is very much going to be governed by the defense strategy of anyone who gets charged and were way ahead of the game and speculating whether anyone will as I think about this case there was Michael Cohen made these payments and then he received reimbursement by filing essentially fictitious invoices to the Trump Organization billing them for legal services when in fact what they were paying was a reimbursement for the for the the cost of heating incurred personally to make these payments to these women so that seems like something that could implicate financial records of the Trump organization it's not obvious to me and maybe there's nonpublic information that I'm not aware of but it's seems much less likely to me that that would implicate the president's own personal financial records and tax returns even if it did implicate Trump organization. That seems to be true although you know these people are not exactly doing everything by the book and I don't think we've seen the end of the tax creativity that might have been connected to some of these operations but I think you're most likely right it's most likely to be the Trump Organization records and not his own personal records there is much more to talk about but I think that's a good place for us to leave it Ken Why thank you very much for speaking with me thank you Josh if you have questions about the president's lawyers and his legal issues send them to us you can find us on Twitter at l.r.c. Case or w. You can also leave us a voicemail at 310-853-3514 all the president's lawyers is produced by Sarah Farai our technical director is j.c. Swotting Tom Simon composer of a music I'm Josh Barrow thank you for joining us and Ken and I will be back next week with more on the president for. K.c. R.w. Sponsors includes travel. 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