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Weekend Law: Comey's Motions, Meta Wins & Texas Maps · Bloomberg Law

• 0:02
  Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
• 0:08
  Speaker 2: The Justice Department's indictment of James Comy was riddled with
• 0:13
  Speaker 2: problems that may give the former FBI director legal grounds
• 0:17
  Speaker 2: to have it dismissed. And that's according to a federal judge.
• 0:22
  Speaker 2: Comy's been charged with making false statements and obstructing Congress
• 0:27
  Speaker 2: and Magistrate Judge William Fitzpatrick cited eleven potential missteps by
• 0:32
  Speaker 2: the Justice Department in the lead up to filing those charges,
• 0:37
  Speaker 2: including fundamental misstatements of the launch to the grand jury
• 0:41
  Speaker 2: by the prosecutor, Lindsay Halligan, and the use of potentially
• 0:45
  Speaker 2: privileged communications. And he's ordered an extraordinary remedy the release
• 0:51
  Speaker 2: of all grand jury materials to the defense. That's been
• 0:55
  Speaker 2: put on hold pending a review by the District Court
• 0:58
  Speaker 2: Judge Jimy his former federal prosecutor, Robert Mintz, a partner
• 1:03
  Speaker 2: maccarter in English, Bob In some ways, the judge's opinion
• 1:08
  Speaker 2: seems like a guideline for the defense to ask for
• 1:11
  Speaker 2: a dismissal of the indictment. He outlined the procedural and
• 1:15
  Speaker 2: substance of irregularities that occurred before the grand jury and
• 1:19
  Speaker 2: said they may give Comby legal grounds to have one
• 1:22
  Speaker 2: or more of the counts dismissed. Pretty harsh condemnation of
• 1:26
  Speaker 2: the government's actions.
• 1:28
  Speaker 3: It was extremely unusual, because it's extremely rare in the
• 1:32
  Speaker 3: first place for a judge to be reviewing conduct in
• 1:36
  Speaker 3: front of a grand jury. So what the magistrate judge
• 1:39
  Speaker 3: was pasked with in this circumstance was to decide whether
• 1:43
  Speaker 3: mister Comy had met the very high bar for a
• 1:46
  Speaker 3: defendant to be given full access to the transcripts and
• 1:50
  Speaker 3: recordings of a grand jury proceeding. What ended up happening
• 1:53
  Speaker 3: here was that, in addition to the reasons that Combe's
• 1:56
  Speaker 3: lawyers had argued for access to the grand jury matif,
• 2:00
  Speaker 3: the judge found from his own review of the materials
• 2:03
  Speaker 3: a host of new problems, new issues that could ultimately
• 2:07
  Speaker 3: lead to the dismissal of the case. The judge went
• 2:10
  Speaker 3: through a series of potential issues that he decided the
• 2:15
  Speaker 3: defense was entitled to probe and to raise before the
• 2:19
  Speaker 3: court as a basis to possibly dismiss the indictment. One
• 2:22
  Speaker 3: of the original issues that Comy's lawyers raised as a
• 2:26
  Speaker 3: basis for accessing the grand jury material had to do
• 2:30
  Speaker 3: with search warrants that were executed by the Department of
• 2:33
  Speaker 3: Justice in twenty nineteen and twenty twenty in connection with
• 2:37
  Speaker 3: an entirely separate, earlier investigation which took place during President
• 2:41
  Speaker 3: Trump's first presidency and had to do with the potential
• 2:45
  Speaker 3: leaking of information to the media about ongoing investigations by
• 2:50
  Speaker 3: the FBI, and the search warrants were focused on a
• 2:53
  Speaker 3: Columbia University law professor, Daniel Richman, who was a friend
• 2:57
  Speaker 3: of mister Comy's, but who would also end up repris
• 3:00
  Speaker 3: presenting him as his lawyer, and that created the question
• 3:04
  Speaker 3: of whether or not the information might have been covered
• 3:06
  Speaker 3: by the attorney client privilege. The judge here raised a
• 3:11
  Speaker 3: number of issues as to whether or not there could
• 3:13
  Speaker 3: have been a violation of mister Comy's rights, and whether
• 3:16
  Speaker 3: or not privileged information might have seeped into the grand
• 3:20
  Speaker 3: jury presentation and that would have been entirely improper and
• 3:24
  Speaker 3: would have tainted the presentation and could potentially be a
• 3:27
  Speaker 3: basist to dismiss the indictment.
• 3:29
  Speaker 2: So Bob the prosecutor here. The interim US Attorney Lindsay Halligan,
• 3:34
  Speaker 2: was Trump's former personal lawyer had never been a prosecutor before,
• 3:38
  Speaker 2: and she presented the case to the grand jury by herself.
• 3:42
  Speaker 2: It appears that she suggested to the grand jury that
• 3:45
  Speaker 2: the fact that Comy didn't testify in his defense should
• 3:50
  Speaker 2: be interpreted as a sign of guilt. Even a first
• 3:54
  Speaker 2: year law student should know that a defendant doesn't have
• 3:58
  Speaker 2: to testify.
• 3:59
  Speaker 3: Well, that's exactly, and the magistrate judge described these as
• 4:03
  Speaker 3: quote fundamental misstatements of law by the prosecutor in front
• 4:08
  Speaker 3: of the grand jury, and one of the issues that
• 4:11
  Speaker 3: he identified was this Fifth Amendment right issue. Apparently, during
• 4:15
  Speaker 3: the course of the grand jury at presentation, a grandeuror
• 4:19
  Speaker 3: raised questions, as grandeurs often do to the prosecutor, and
• 4:23
  Speaker 3: the prosecutor has to respond with the proper law in
• 4:26
  Speaker 3: order to give the grand jurors the framework by which
• 4:29
  Speaker 3: to consider whether or not to return an indictment. Here,
• 4:32
  Speaker 3: apparently a grandeuror asked a question, and as you say,
• 4:36
  Speaker 3: the exact response has been redacted. But according to the
• 4:39
  Speaker 3: magistrate judge, it suggested that mister Comy may have had
• 4:44
  Speaker 3: a burden to explain away the government's evidence. In other words,
• 4:48
  Speaker 3: the inference was that the burden shifted to mister Comy
• 4:52
  Speaker 3: to have to explain why he did what he did, when,
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  Speaker 3: in fact, under the Fifth Amendment, a defendant has no
• 4:59
  Speaker 3: obligation whatsoever to testify, and the fact that they choose
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  Speaker 3: not to testify cannot be used against him. And more fundamentally,
• 5:08
  Speaker 3: in a criminal prosecution, the burden never shifts to the defense.
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  Speaker 3: It's always the prosecution's burden to prove its case beyond
• 5:15
  Speaker 3: a reasonable doubt. So any suggestion that mister Comy's decision
• 5:20
  Speaker 3: not to testify not to explain away his conduct could
• 5:24
  Speaker 3: somehow be used by grand jurors to infer that he
• 5:28
  Speaker 3: committed a crime would have been improper. The judge also
• 5:32
  Speaker 3: noted that Miss Halligan may have suggested to the grand
• 5:35
  Speaker 3: jury that they did not have to rely only on
• 5:38
  Speaker 3: the record that was presented to them during the grand
• 5:41
  Speaker 3: jury presentation in order to reach a finding of whether
• 5:44
  Speaker 3: or not there was probable cause, but that they could
• 5:47
  Speaker 3: assume and they could be assured of the fact that
• 5:50
  Speaker 3: the government had even more evidence, perhaps better evidence than
• 5:54
  Speaker 3: was presented to them during the presentation that could be
• 5:57
  Speaker 3: used at trial, and therefore that the case was even
• 6:00
  Speaker 3: stronger than the evidence presented to them during the grand
• 6:03
  Speaker 3: jury proceeding. If that was done, that too would be
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  Speaker 3: entirely improper. The grand jury has to make a decision
• 6:10
  Speaker 3: as to whether or not there is probable cause based
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  Speaker 3: solely on the evidence presented to them during the grand
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  Speaker 3: jury proceeding. It's really no different than a trial in
• 6:19
  Speaker 3: which jurors have to make a determination as to whether
• 6:22
  Speaker 3: or not the government has met its burden of proof
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  Speaker 3: beyond a reasonable doubt based solely on the evidence that's
• 6:27
  Speaker 3: presented to them during the trial. They can't rely on
• 6:31
  Speaker 3: anything outside of the record during the trial proceeding. The
• 6:35
  Speaker 3: same holds true for a grand jurors, and for a
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  Speaker 3: prosecutor to just suggest that there is other more powerful
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  Speaker 3: evidence that they should consider but has not been presented
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  Speaker 3: to them would be entirely improper.
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  Speaker 2: I mean her comments basically come down to a defendant
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  Speaker 2: has to testify before a grand jury, and trust me,
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  Speaker 2: grand jurors, we have a lot more evidence that will
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  Speaker 2: prove his guilt, but we're not showing it to you now.
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  Speaker 3: Well, I think that's why you saw the opinion written
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  Speaker 3: by the magistrate judge to be as strongly worded at
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  Speaker 3: as detailed as it was. It was a twenty four
• 7:11
  Speaker 3: page opinion that went through not only the issues that
• 7:15
  Speaker 3: mister Comey's lawyers had raised in order to try to
• 7:17
  Speaker 3: gain access to the grand jury transcripts, but also a
• 7:21
  Speaker 3: litany of other issues that he discovered when he reviewed
• 7:26
  Speaker 3: in camera those Grand Jury transcripts, and he raised serious
• 7:29
  Speaker 3: questions in his mind, I believe as to whether or
• 7:32
  Speaker 3: not there were serious constitutional errors in the presentation, not
• 7:36
  Speaker 3: only the Fifth Amendment question, not only the question that
• 7:39
  Speaker 3: there was evidence outside of the Grand jury's purview that
• 7:41
  Speaker 3: they should consider, even the way the Grand jury returned
• 7:45
  Speaker 3: the indictment. In this case, the original indictment presented to
• 7:48
  Speaker 3: the Grand jurors was a three count indictment. When the
• 7:51
  Speaker 3: Grand jurors went back to deliberate, they chose not to
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  Speaker 3: return a true bill, which means they voted not in
• 7:58
  Speaker 3: favor of one of the recounts. And now there's a
• 8:01
  Speaker 3: question as to whether or not an entirely new indictment
• 8:05
  Speaker 3: with only the two counts that the Grand jurors voted
• 8:08
  Speaker 3: in favor of, was ever presented to them. If that
• 8:11
  Speaker 3: did not happen, if the Grand jurors did not deliberate
• 8:14
  Speaker 3: on the exact indictment that was ultimately presented to the court.
• 8:18
  Speaker 3: That is another issue that could be very problematic, and.
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  Speaker 2: There's a lot of confusion about whether the grand jury
• 8:24
  Speaker 2: actually reviewed the final indictment or not, with Halligan first
• 8:28
  Speaker 2: saying and a hearing that they didn't and then in
• 8:32
  Speaker 2: court papers saying that they did.
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  Speaker 3: During the hearing, the District Court judge was very clear
• 8:38
  Speaker 3: in asking the government whether the second indictment, containing only
• 8:43
  Speaker 3: the two counts that the Grand Jury voted in favor of,
• 8:46
  Speaker 3: was actually represented to all of the grand jurors, so
• 8:49
  Speaker 3: that they voted on the actual indictment that was ultimately.
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  Speaker 4: Presented to the court.
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  Speaker 3: At that time, the government said that the full indictment
• 8:57
  Speaker 3: was not presented, But now they've come back with evidence
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  Speaker 3: in the transcript that suggests that perhaps it was repackaged
• 9:04
  Speaker 3: and presented to all of the grand jurors. So the
• 9:07
  Speaker 3: record on this question of whether the grand jurors actually
• 9:10
  Speaker 3: voted on the indictment that mister Commee is now facing
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  Speaker 3: is muddled at best. At the end of the day,
• 9:16
  Speaker 3: the question of whether they voted on the actual indictment
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  Speaker 3: or not is probably not the issue that's going to
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  Speaker 3: drive the decision. The judge will more likely look at
• 9:28
  Speaker 3: some of the constitutional questions that have been raised by
• 9:31
  Speaker 3: Comey's defense team with regard to some of the comments
• 9:34
  Speaker 3: that were made during the grand jury process and make
• 9:37
  Speaker 3: a determination as to whether or not this indictment will
• 9:40
  Speaker 3: stand based upon those arguments, rather than this procedural question
• 9:45
  Speaker 3: about whether the proper indictment was presented to the full
• 9:49
  Speaker 3: grand jury. This is a prosecutor's nightmare. The case should
• 9:52
  Speaker 3: not be about the prosecutor's conduct right out of the gate.
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  Speaker 3: It should be about the defendant's conduct and about whether
• 9:59
  Speaker 3: or not the government can prove that the defendant committed
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  Speaker 3: a crime beyond a reasonable doubt. The probe into the
• 10:05
  Speaker 3: conduct by the government is exactly where you want to
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  Speaker 3: be if you're on the defense side, but it's the
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  Speaker 3: worst place you can possibly be as a prosecutor.
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  Speaker 2: Yet another judge is involved in this case, and that's
• 10:18
  Speaker 2: the judge considering whether Lindsay Halligan was lawfully appointed.
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  Speaker 3: The federal judge is actually a judge from South Carolina.
• 10:27
  Speaker 3: Because the question before the court is whether or not
• 10:30
  Speaker 3: the US Attorney for the Eastern District of Virginia has
• 10:33
  Speaker 3: been properly appointed, and the decision was made by the
• 10:37
  Speaker 3: Circuit Court that would be best to have a judge
• 10:40
  Speaker 3: not in that judicial district making this decision. So the
• 10:43
  Speaker 3: judge from South Carolina to Judge Curry is looking at
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  Speaker 3: the convoluted process by which Lindsay Halligan was appointed as
• 10:52
  Speaker 3: the interim US Attorney for the Eastern District of Virginia.
• 10:55
  Speaker 3: There had been a career prosecutor who was appointed by
• 10:59
  Speaker 3: President Tromp to serve on an interim basis. That interim
• 11:03
  Speaker 3: basis lasts one hundred and twenty days. After that time period,
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  Speaker 3: the judges in the district can then extend that appointment,
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  Speaker 3: and that's exactly what happened here with that career prosecutor,
• 11:14
  Speaker 3: Eric Sebert. The Attorney General then fired mister Siebert and
• 11:18
  Speaker 3: appointed a new prosecutor, Lindsay Halligan, for a new one
• 11:22
  Speaker 3: hundred and twenty day period. And the question is whether
• 11:26
  Speaker 3: or not the Executive Branch can continue with these one
• 11:29
  Speaker 3: hundred and twenty day interim appointments sort of add infinitum,
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  Speaker 3: or whether they can do it only one time and
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  Speaker 3: after that time it's up to the district court judges
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  Speaker 3: to appoint the US attorney.
• 11:42
  Speaker 2: There are so many interesting legal questions in this case.
• 11:45
  Speaker 2: Thanks Bob. That's Robert Mince of Macarter and English coming
• 11:49
  Speaker 2: up next. A huge win from Meta. I'm June Grosso
• 11:52
  Speaker 2: when you're listening to Bloomberg. A landmark antitrust decision on
• 11:58
  Speaker 2: Tuesday was a massive blow to the Federal Trade Commission
• 12:02
  Speaker 2: and a huge win for Meta, as it prevailed over
• 12:05
  Speaker 2: an existential challenge to its business that could have forced
• 12:09
  Speaker 2: the tech giant to spin off Instagram and WhatsApp. A
• 12:13
  Speaker 2: federal judge ruled that the FTC failed to prove that
• 12:17
  Speaker 2: those acquisitions allowed Meta to illegally monopolize the social networking market.
• 12:23
  Speaker 2: The question now is whether the government will even appeal
• 12:27
  Speaker 2: this significant loss, especially factoring in one dynamic. Meta CEO
• 12:32
  Speaker 2: Mark Zuckerberg has been courting President Trump.
• 12:36
  Speaker 4: We're going to work with President Trump to push back
• 12:39
  Speaker 4: on governments around the world.
• 12:40
  Speaker 1: They're going after American companies and pushing to censor more.
• 12:44
  Speaker 2: And it was Zuckerberg who was seated right next to
• 12:47
  Speaker 2: the President during a high profile dinner of technology executives
• 12:52
  Speaker 2: in September. My guest is antitrust expert Harry First, a
• 12:56
  Speaker 2: professor at NYU Law School, Harry, how big a blow
• 13:00
  Speaker 2: is this to the.
• 13:01
  Speaker 4: Ftc Well, it's a blow, all right. So this is
• 13:06
  Speaker 4: the first big loss in these high tech platform cases.
• 13:11
  Speaker 4: So two of them have now come to a conclusion
• 13:13
  Speaker 4: of the trial, you know, both against Google, both successful
• 13:17
  Speaker 4: for the Justice Department remedy another story maybe, So this
• 13:21
  Speaker 4: is the third. They're five total, and it's the first loss.
• 13:26
  Speaker 4: It's sort of not a surprising loss because this judge
• 13:29
  Speaker 4: has been skeptical of this case, clearly from the very beginning.
• 13:32
  Speaker 4: He had dismissed it originally, so he's been very skeptical,
• 13:36
  Speaker 4: and he said it in his opinions. So this case
• 13:40
  Speaker 4: has not been well received by the judiciary, shall we say,
• 13:44
  Speaker 4: So it's not surprising. The opinion itself is a little surprising,
• 13:48
  Speaker 4: but the result is not so surprising.
• 13:51
  Speaker 2: What do you say? The opinion is surprising.
• 13:53
  Speaker 4: So in two ways. First of all, he's taken a
• 13:56
  Speaker 4: very novel approach to time in the opinion. So he
• 14:02
  Speaker 4: says that the proof has to be as of the
• 14:05
  Speaker 4: time I make my decision. Almost, I mean, this is
• 14:08
  Speaker 4: an impossible standard. He said, maybe maybe they were monopoly,
• 14:13
  Speaker 4: Maybe this was a properly defined product, market in twenty
• 14:16
  Speaker 4: twenty when the suit was filed. But as time has
• 14:19
  Speaker 4: gone by, it's not that much time by now it's
• 14:23
  Speaker 4: not And the question is not whether it was then,
• 14:25
  Speaker 4: but whether it is now. I mean, if you take
• 14:28
  Speaker 4: that literally, that's a completely moving standard. You could never
• 14:32
  Speaker 4: try a case because your evidence is always outdated. I mean,
• 14:36
  Speaker 4: it's always about the past. You can't try a case
• 14:39
  Speaker 4: about the future. So that's a departure. He's got some
• 14:42
  Speaker 4: legal reasoning for why he does that, but that's a
• 14:45
  Speaker 4: serious problem, and I think it's a serious anti trust problem.
• 14:48
  Speaker 4: So there is that part of it. The second part
• 14:50
  Speaker 4: is this judge is very confident of his opinion. So
• 14:54
  Speaker 4: normally a district court judge, he's got seven things to
• 14:57
  Speaker 4: decide in front of him, and they proceed logically, well,
• 15:01
  Speaker 4: if if you go for this, you know, then you're done.
• 15:04
  Speaker 4: But if you go for this and it's okay, you
• 15:06
  Speaker 4: go to number two, three, four, five. So he has
• 15:09
  Speaker 4: a long trial, but he only decides the first issue. Now,
• 15:12
  Speaker 4: normally a judge would say, okay, here's what I decide.
• 15:16
  Speaker 4: This isn't a market. Market has to include such and such.
• 15:18
  Speaker 4: They don't really have monopoly power. Okay, but if I'm wrong,
• 15:22
  Speaker 4: here are the facts that I found about the conduct.
• 15:25
  Speaker 4: And the conduct wasn't any competitive. So even if you
• 15:28
  Speaker 4: had monopoly power, this was not exclusionary conduct, less than
• 15:31
  Speaker 4: any competitive And so you go through all the things
• 15:34
  Speaker 4: because if a court of appeals disagrees with you, now
• 15:38
  Speaker 4: what you've got to retry the whole case. So this
• 15:42
  Speaker 4: is a judge who thinks no one's going to disagree
• 15:45
  Speaker 4: with me man, And maybe maybe part of it is
• 15:49
  Speaker 4: because the narrative of the case is at least potentially
• 15:53
  Speaker 4: stronger than the market definition. So you know all the
• 15:57
  Speaker 4: emails about how Mark zuckerberg theory was to buy them
• 16:01
  Speaker 4: or bury them, and you know what he tried to
• 16:04
  Speaker 4: do with competitors and why he paid so much for
• 16:07
  Speaker 4: Instagram and for WhatsApp. WhatsApp drops out of this case
• 16:12
  Speaker 4: like right away, I don't know, third word or something.
• 16:14
  Speaker 4: He says, at some point, we're done with them, we
• 16:16
  Speaker 4: don't have to talk about them anymore. So that's pretty unusual,
• 16:20
  Speaker 4: I think, And it's either hubris or confidence, I don't
• 16:24
  Speaker 4: know which. But he does not do what I think
• 16:27
  Speaker 4: most district court judges would do, which is decide the
• 16:30
  Speaker 4: full case.
• 16:31
  Speaker 3: I thought the.
• 16:32
  Speaker 2: Focus would be on the market when Meta bought Instagram
• 16:36
  Speaker 2: and WhatsApp, and whether it was anti competitive conduct when
• 16:41
  Speaker 2: it's alleged that Meta couldn't compete with these two apps,
• 16:45
  Speaker 2: and Zuckerberg said it's better to buy than compete.
• 16:49
  Speaker 4: What he tried to say was, well, we've got to
• 16:52
  Speaker 4: do it as of now, in part because of the
• 16:55
  Speaker 4: FTC's remedy powers. They're asking for an injunction and they
• 16:59
  Speaker 4: can only stop conduct that is illegal now. So I've
• 17:03
  Speaker 4: got to decide what's illegal now. Now, he could have
• 17:06
  Speaker 4: very well said that's a remedy question. We'll decide that
• 17:09
  Speaker 4: when we get to remedy whether it's a continuing violation
• 17:13
  Speaker 4: or not. We should look at whether there was a
• 17:15
  Speaker 4: violation then. So, for example, if this were suit for damages,
• 17:19
  Speaker 4: you wouldn't say, well, we have to see whether it's
• 17:22
  Speaker 4: a violation today. You would say, let's see whether there
• 17:26
  Speaker 4: was a violation at the time that the offense was
• 17:29
  Speaker 4: committed and what damages were caused. So those two things
• 17:34
  Speaker 4: are are separate. So it's really quite odd, and you're right.
• 17:38
  Speaker 4: The argument that the Commission makes is that we look
• 17:42
  Speaker 4: at what they did and why they did it that
• 17:44
  Speaker 4: this was an effort to maintain their monopoly. These two
• 17:47
  Speaker 4: acquisitions for which they wildly overpaid. Why were they paying
• 17:51
  Speaker 4: nineteen billion dollars for a company that didn't have any
• 17:54
  Speaker 4: revenue that was What's app And the answer was they
• 17:57
  Speaker 4: didn't want them to develop into a compete social network platforms.
• 18:01
  Speaker 4: So you know, now that part also had problems that
• 18:04
  Speaker 4: had issues. You know, the Federal Trade Commission and its
• 18:08
  Speaker 4: earlier guys let those acquisitions go through, so there were
• 18:12
  Speaker 4: issues with it. So in that sense, that's a really
• 18:15
  Speaker 4: strange aspect.
• 18:16
  Speaker 2: As far as the definition of the market, the FDC
• 18:20
  Speaker 2: had argued that menas apps, Facebook and Instagram are primarily
• 18:25
  Speaker 2: used for personal social networking, while TikTok and YouTube are
• 18:31
  Speaker 2: video entertainment apps. But the judge rejected that and put
• 18:35
  Speaker 2: them all in one market.
• 18:37
  Speaker 4: Yeah, so the first question you have to show that
• 18:40
  Speaker 4: defendant has monopoly power in a relevant market. So he says, okay,
• 18:44
  Speaker 4: we have to start with market definition. So that's true,
• 18:47
  Speaker 4: that's the way it's normally done. And then he says, okay, yes,
• 18:51
  Speaker 4: let's look at the market. You know, he says, these
• 18:53
  Speaker 4: platforms have converged, these are all sort of similar and
• 18:59
  Speaker 4: particularly TikTok, you know, was posing a competitive threat. Says,
• 19:04
  Speaker 4: people don't want to talk to their friends anymore. They
• 19:06
  Speaker 4: just want unconnected videos. So, you know, TikTok comes along
• 19:11
  Speaker 4: and they're posing some threat, and Facebook responds with reels
• 19:16
  Speaker 4: short videos. And so that has now changed how we
• 19:20
  Speaker 4: define the market because users switch back and forth between
• 19:24
  Speaker 4: the two, and we have to include TikTok, and we
• 19:26
  Speaker 4: have to include YouTube or users switch to those videos later.
• 19:30
  Speaker 4: It's sort of at the end of the opinion, he says, well,
• 19:33
  Speaker 4: the argument for YouTube actually is a little thinner. But
• 19:36
  Speaker 4: even if it's just TikTok, that's enough. We would include
• 19:39
  Speaker 4: that in. However, we define the market, whatever we want
• 19:43
  Speaker 4: to call it doesn't really give it a name. And
• 19:45
  Speaker 4: at that point, if we include TikTok, then Meta does
• 19:50
  Speaker 4: not have monopoly power. TikTok takes away too much time.
• 19:55
  Speaker 4: All those kids are frittering where other time on TikTok.
• 20:00
  Speaker 4: That refrittering we're other time on Facebook. He had various
• 20:03
  Speaker 4: evidence of, you know, the willingness to switch, and that
• 20:07
  Speaker 4: people switch between those two. Now, the odd thing in
• 20:12
  Speaker 4: some ways is if so many people are switching, how
• 20:15
  Speaker 4: come so many people are still on Facebook. He gives
• 20:19
  Speaker 4: two hundred and forty million active users in the United
• 20:22
  Speaker 4: States and ad revenues of one hundred and sixty one
• 20:27
  Speaker 4: billion dollars. So when you read his description, it sounds
• 20:32
  Speaker 4: like this is a company that is just in the
• 20:34
  Speaker 4: throes of death from TikTok, and then he says, this
• 20:40
  Speaker 4: is an amazingly successful product. Give people a compelling product
• 20:44
  Speaker 4: for free, then sell ads that can be seen by millions.
• 20:48
  Speaker 4: I guess he thinks those are good. Two hundred and
• 20:51
  Speaker 4: forty million active users in the United States, it's a
• 20:55
  Speaker 4: lot of people. So apparently they haven't been dissuaded by TikTok,
• 20:59
  Speaker 4: which is also free, and you know they don't give
• 21:02
  Speaker 4: all their time there. They're still on Facebook. So the
• 21:05
  Speaker 4: argument from the government is that by incorporating Reels, they've
• 21:09
  Speaker 4: managed to defend their core business, and their core business
• 21:13
  Speaker 4: is social network putting people together, and they still get
• 21:18
  Speaker 4: a lot of people who like that product, even though
• 21:21
  Speaker 4: some people also use different products.
• 21:23
  Speaker 2: Harriet sounds like the government should appeal because of the
• 21:26
  Speaker 2: unusual way the judge defined the market. But this is
• 21:31
  Speaker 2: not an administration that always follows what's best for the
• 21:34
  Speaker 2: legal landscape. So might they decide not to appeal because
• 21:38
  Speaker 2: of political reasons?
• 21:41
  Speaker 4: Who knows exactly. It's hard to assess the political wins,
• 21:45
  Speaker 4: and the winds may go the other way because, you know,
• 21:47
  Speaker 4: a populist wing of the party feels that these platforms
• 21:53
  Speaker 4: have too much power and need to be cut down.
• 21:56
  Speaker 4: So who knows exactly. But if you look straight, it's
• 21:59
  Speaker 4: a legal issue. Is usually appeals from adverse decisions of
• 22:04
  Speaker 4: trial courts are hard to win on appeal because they're
• 22:09
  Speaker 4: mostly fact based, so you have to look for legal issues,
• 22:12
  Speaker 4: and there's a you know, an important legal issue of
• 22:16
  Speaker 4: you know, whether he applied the correct standard for defining
• 22:19
  Speaker 4: the market and for assessing when a violation occurred, And
• 22:22
  Speaker 4: that one's sort of a very pointed legal issue. How
• 22:26
  Speaker 4: it will fare in the court of appeals if they
• 22:28
  Speaker 4: do take it, I don't know.
• 22:29
  Speaker 2: And does this decision have any implications for the other
• 22:33
  Speaker 2: antitrust cases against tech platforms.
• 22:37
  Speaker 4: Yeah, that's a good question. Perhaps I'm thinking of Amazon
• 22:41
  Speaker 4: for example. So these are platform cases, and platform strategy
• 22:46
  Speaker 4: is you have a core product and what you want
• 22:49
  Speaker 4: to do is to keep people on the platform and
• 22:52
  Speaker 4: engaged because of the strength of the core product, and
• 22:55
  Speaker 4: you defend the core product by acquiring things around the
• 22:59
  Speaker 4: periphery that might challenge it, or by doing things. You know,
• 23:02
  Speaker 4: these companies are always subject to some competitive forces, even
• 23:06
  Speaker 4: if they're monopolis. So certainly Facebook was TikTok did pose
• 23:12
  Speaker 4: a competitive threat, and Amazon similarly has competitive threats to
• 23:17
  Speaker 4: which they respond. But the basic strategy is pretty similar,
• 23:22
  Speaker 4: and the market definition in some ways is similar because
• 23:26
  Speaker 4: they offer a bunch of different products in the same place,
• 23:30
  Speaker 4: much as supermarkets do, like whole foods for example. So
• 23:36
  Speaker 4: you have a you know, sort of core product and
• 23:38
  Speaker 4: then other things that they offer that other firms may
• 23:41
  Speaker 4: compete on. I mean, look at your smartphone, so thirty
• 23:45
  Speaker 4: five millimeters cameras compete on cameras, But you know, are
• 23:47
  Speaker 4: they in the same market. No, so you could say
• 23:51
  Speaker 4: this is quite similar. You know, yes, TikTok competes. I'm
• 23:56
  Speaker 4: surprised Twitter's not mentioned. Twitter competes, you know, to some
• 23:59
  Speaker 4: ext but these are all to some extent, and it's
• 24:04
  Speaker 4: still a meta defending its core product in which it
• 24:08
  Speaker 4: has a lot of power, as all advertisers know.
• 24:12
  Speaker 2: And there are more trials ahead as the government continues
• 24:16
  Speaker 2: to try to rein in big tech with antitrust suits.
• 24:20
  Speaker 2: Thanks so much, Harry. That's Professor Harry First of NYU
• 24:24
  Speaker 2: Law School, coming up next on the Bloomberg Law Show.
• 24:28
  Speaker 2: A loss for Texas in the nationwide redistricting battle that
• 24:32
  Speaker 2: it started. I'm June Grosso and you're listening to Bloomberg.
• 24:36
  Speaker 2: You may remember back in July when President Donald Trump
• 24:40
  Speaker 2: pushed Texas Republicans to redraw congressional maps to give the
• 24:45
  Speaker 2: party five more seats to maintain its hold on the
• 24:48
  Speaker 2: House in the midterm elections.
• 24:51
  Speaker 1: Five. I think we get five, and there could be
• 24:54
  Speaker 1: some other states we're going to get another three or
• 24:56
  Speaker 1: four or five.
• 24:57
  Speaker 3: In addition, Texas would be the biggest one.
• 25:00
  Speaker 2: And Texas did kick off the nationwide mid decade redistricting
• 25:06
  Speaker 2: battle that's playing out in other states and in courtrooms
• 25:10
  Speaker 2: across the country. But could Trump's plan backfire? This week,
• 25:16
  Speaker 2: a panel of federal judges blocked the new map in
• 25:19
  Speaker 2: Texas and said the old map will have to be
• 25:22
  Speaker 2: used for the midterms. But on Friday, the state made
• 25:26
  Speaker 2: an emergency appeal to the Supreme Court asking it to
• 25:30
  Speaker 2: reinstate the newly drawn congressional map, and in just a
• 25:34
  Speaker 2: little over an hour, Justice Samuel Alito, who handles emergency
• 25:39
  Speaker 2: appeals from Texas, did just that. He temporarily blocked the
• 25:44
  Speaker 2: three judge panels ruling and restored the map. Alito asked
• 25:49
  Speaker 2: the opponents of the map to file a response by Monday,
• 25:53
  Speaker 2: signaling quick action by the court joining me. His elections
• 25:56
  Speaker 2: law expert Richard Brefalt, a professor at Columbia Law School,
• 26:01
  Speaker 2: rich this was a two to one decision with a
• 26:03
  Speaker 2: Trump appointee and an Obama appointee in the majority and
• 26:08
  Speaker 2: a Reagan appointee dissenting. Will you explain why the judges
• 26:12
  Speaker 2: decided that Texas couldn't use its new congressional plan.
• 26:17
  Speaker 1: In a nutshell, the court concluded that this was a
• 26:20
  Speaker 1: racial jerry mander and not a partisan jerrymander. And as
• 26:24
  Speaker 1: you know, the Supreme Court has said parts in jerry
• 26:26
  Speaker 1: manders are not unconstitutional, there's no basis for challenging them
• 26:29
  Speaker 1: in federal court. But racial jerry manders can be unconstitutional
• 26:33
  Speaker 1: and can be challenged in federal court. So the heart
• 26:35
  Speaker 1: of the Court's decision was that this was a racial
• 26:37
  Speaker 1: jerry mander. And what did they base that on? The
• 26:40
  Speaker 1: Court said what triggered this, Although we think of this
• 26:43
  Speaker 1: as Trump demanding more Republican seats from the Texas congressional delegation,
• 26:48
  Speaker 1: in the court's view, the Texas governor was initially reluctant
• 26:52
  Speaker 1: to call the special Section to create the map until
• 26:55
  Speaker 1: he got a letter from the Department of Justice in
• 26:58
  Speaker 1: Washington that said several of the Texas districts were unconstantly
• 27:04
  Speaker 1: created on racial grounds. In particular, the Department of Justice
• 27:07
  Speaker 1: focused on so called coalition districts, which are districts which
• 27:12
  Speaker 1: are majority minority, but not one particular minority group. And
• 27:17
  Speaker 1: for a period of time in the Fifth Circuit, courts
• 27:20
  Speaker 1: there had said that the Voting Rights Act could be
• 27:22
  Speaker 1: interpreted to require the so called coalition district district which,
• 27:26
  Speaker 1: let's say is forty percent Black and thirty percent Hispanic.
• 27:30
  Speaker 1: Neither one is a majority, but together they add up
• 27:32
  Speaker 1: to seventy percent. And so the Apartment of Justice says, well,
• 27:35
  Speaker 1: we see four districts in your current in your twenty
• 27:38
  Speaker 1: twenty one map that look like their coalition districts to us,
• 27:41
  Speaker 1: and based on a recent decision in the Fifth Circuit,
• 27:44
  Speaker 1: we think that makes them unconstitutional. So you got to
• 27:47
  Speaker 1: fix it, you've got to redo those districts. So what
• 27:50
  Speaker 1: the three judge panel in this case concluded is that
• 27:52
  Speaker 1: that was what was driving the redistricting. They looked at
• 27:55
  Speaker 1: the statements of the governor and of the leading members
• 27:58
  Speaker 1: of the state legislature, and they also looked at the
• 28:00
  Speaker 1: resulting map, and they pointed out that most of the
• 28:03
  Speaker 1: changes in the redrawn districts went from being so called
• 28:08
  Speaker 1: coalition districts, the districts in which one race or another
• 28:12
  Speaker 1: had a majority, and often an extremely narrow majority. They
• 28:16
  Speaker 1: said there were three districts they were either black or Hispanic,
• 28:19
  Speaker 1: where the majority group had like fifteen point two percent.
• 28:22
  Speaker 1: So they said the combination of the Department of Justice letter,
• 28:26
  Speaker 1: the governor's statement calling the legislature decision, in statements by
• 28:31
  Speaker 1: many of the leading members of legislature, and then the
• 28:33
  Speaker 1: districts that were created. In their minds, this meant that
• 28:37
  Speaker 1: race predominated the desire to create racial majority districts is
• 28:41
  Speaker 1: what was driving this. It's tub the court sent and
• 28:43
  Speaker 1: also clearly had partisan consequences in the nave and some
• 28:46
  Speaker 1: partisan motivation as well, But they said the dominant motive
• 28:50
  Speaker 1: that they found was race, and thatfore this made it
• 28:53
  Speaker 1: an unconstitutional racial jerry.
• 28:54
  Speaker 2: Matter, even though we know that President Trump really pushed
• 28:58
  Speaker 2: Texas Republics as he's continuing to push Republicans in other
• 29:03
  Speaker 2: states like Indiana and Kansas who've been resisting redistricting.
• 29:09
  Speaker 1: I think what you could say is that, to Barbary Shakespeare,
• 29:12
  Speaker 1: the Apartment of Justice was hoist by its own petard.
• 29:15
  Speaker 1: I think when this all began, it's now like four
• 29:17
  Speaker 1: months later, it's amazing how much has gone in four
• 29:19
  Speaker 1: or five months. When this all began, maybe people thought
• 29:21
  Speaker 1: it was too blatant to say this was all for
• 29:24
  Speaker 1: partisan reasons. I mean, we've now been totally partisan since
• 29:26
  Speaker 1: June of this year in the redistricting. But maybe they
• 29:29
  Speaker 1: thought it was just too blatant to say we're doing
• 29:31
  Speaker 1: different partisan purposes. So the Department of Justice trumped up
• 29:34
  Speaker 1: this racial argument. There was no argument actually that those
• 29:37
  Speaker 1: coalition districts were unconstitutional. You could argue that there's no
• 29:41
  Speaker 1: mandate that a state create them, and that's certainly true now,
• 29:45
  Speaker 1: but there was no evidence that they were unconstitutionally drawn. Nonetheless,
• 29:49
  Speaker 1: part of Justice having, i think, provided this kind of
• 29:52
  Speaker 1: pretext for the state to go ahead and do the
• 29:55
  Speaker 1: partisan gerrymander. But given that that was the stated reason
• 29:59
  Speaker 1: the court was able to we think it's a racial
• 30:01
  Speaker 1: gerry manner. They also made the point that the Democratic
• 30:04
  Speaker 1: districts which were undone mostly fell into this category of
• 30:09
  Speaker 1: coalition districts, and they pointed out there was one white
• 30:11
  Speaker 1: majority Democratic district which was barely touched. So they do
• 30:15
  Speaker 1: have some evidence suggesting that most of the focus of
• 30:19
  Speaker 1: the legislature was on coalition districts and making them majority
• 30:24
  Speaker 1: one race or the other. But I think what you've
• 30:27
  Speaker 1: got here is this irony that at least in June
• 30:30
  Speaker 1: of this year, the governor and the Department of Justice
• 30:33
  Speaker 1: thought it's too blatant to do it for purely partisan reasons,
• 30:36
  Speaker 1: so we're going to give them an anti race discrimination motivation,
• 30:40
  Speaker 1: and that, as I think, turned around to sort of
• 30:42
  Speaker 1: bite them in the rear.
• 30:43
  Speaker 2: At least for now, Texas is appealing to the Supreme Court.
• 30:47
  Speaker 2: What do you think will be the main question?
• 30:50
  Speaker 1: Well, I think the real question is will the Supreme
• 30:52
  Speaker 1: Court say that the lower court has made this decision
• 30:56
  Speaker 1: too close to the election. There's this doctrine called the
• 30:59
  Speaker 1: Percell principle, based on a Supreme Court decision now about
• 31:02
  Speaker 1: twenty five years old, in which the Court says that
• 31:05
  Speaker 1: federal courts should not undo state election laws if they're
• 31:10
  Speaker 1: too close to an election. The Court has never said
• 31:13
  Speaker 1: what is too close to an election, but there have
• 31:16
  Speaker 1: been some orders from the Supreme Court in recent years
• 31:19
  Speaker 1: that treated decisions that were within six months of an
• 31:23
  Speaker 1: election as too close to an election. And the Texas
• 31:26
  Speaker 1: primary is in March, so looking at some recent Supreme
• 31:30
  Speaker 1: Court decisions, there is a plausible argument that this Court's
• 31:34
  Speaker 1: decision is too close to the election and therefore should
• 31:37
  Speaker 1: be stayed.
• 31:38
  Speaker 4: Now.
• 31:38
  Speaker 1: The Court addresses that for about twenty pages, and they
• 31:41
  Speaker 1: make the point that the Texas plan was not signed
• 31:44
  Speaker 1: into law until the end of August, and if you
• 31:47
  Speaker 1: took the idea that six months is too late, it
• 31:50
  Speaker 1: was almost too late. As of the moment the Texas
• 31:53
  Speaker 1: redistricting was signed into law, it would have been impossible
• 31:56
  Speaker 1: to have a challenge, have the parties do the research
• 32:00
  Speaker 1: or have a hearing, and have a decision in time
• 32:03
  Speaker 1: to take something like six months. So the Court makes
• 32:07
  Speaker 1: kind of a strong pitch for saying that the percel
• 32:09
  Speaker 1: principle has to be handled flexibly. We've got to look
• 32:12
  Speaker 1: at how late the Texas legislature did this, and we
• 32:16
  Speaker 1: do have to say that it is possible to come
• 32:17
  Speaker 1: into compliance. They make two more points. One is that
• 32:21
  Speaker 1: the old map is still in existence, because Texas is
• 32:24
  Speaker 1: about to hold an election on that old map in January,
• 32:28
  Speaker 1: because there is a vacancy a member of the Texas
• 32:30
  Speaker 1: Commercial Delegation died early this year. There was just a
• 32:34
  Speaker 1: primary thing to fill that the general election to actually
• 32:37
  Speaker 1: fill that seat won't be until January. That's on the
• 32:41
  Speaker 1: old map, the pre Gerrymander map. And so the court says, well,
• 32:44
  Speaker 1: the old maps are still the law, so under our
• 32:47
  Speaker 1: preliminary injunction, we're just going to continue to live by
• 32:50
  Speaker 1: the old map. So the old map is still on
• 32:51
  Speaker 1: the books. And so they're saying that in some sense,
• 32:54
  Speaker 1: the real disruption was the state legislature's acting so late,
• 32:57
  Speaker 1: and so therefore we should be able to do this.
• 32:59
  Speaker 1: And yes, it's still time for everyone to come into
• 33:02
  Speaker 1: compliance to file under the old maps. I think the
• 33:05
  Speaker 1: first question maybe the stronger argument. What the Spreme Court
• 33:08
  Speaker 1: will do is unclear, but there is a plausible percel
• 33:13
  Speaker 1: argument that it's too late. But as I said, the
• 33:16
  Speaker 1: court is very strong in saying, well, if that's the case,
• 33:20
  Speaker 1: you can never bring a challenge to a gerrymander. That indeed,
• 33:24
  Speaker 1: it's an incentive to do the gerrymanders closer and closer
• 33:27
  Speaker 1: to the election to make it impossible to bring challenges.
• 33:30
  Speaker 2: If the Supreme Court says, forget the percell principle here,
• 33:34
  Speaker 2: how do you think they would rule on Texas's appeal.
• 33:37
  Speaker 2: You know that this was a part is in not
• 33:39
  Speaker 2: a racial gerrymander. Do you have any idea on that?
• 33:41
  Speaker 1: It's really hard to say. I mean, I think the
• 33:43
  Speaker 1: court acknowledges that there's evidence on the other side, but
• 33:46
  Speaker 1: they have in particularly the testimony of the map drawer,
• 33:50
  Speaker 1: the Republican specialist whoshire to draw the map. You said,
• 33:53
  Speaker 1: you know, no, I never looked at race data. The
• 33:54
  Speaker 1: Court said, we essentially don't believe you, partly because there
• 33:57
  Speaker 1: are discrepancies between your testimony the testimony of the state
• 34:01
  Speaker 1: legislator who hired you, but also because we just don't
• 34:03
  Speaker 1: believe that you could produce three districts that are fifty
• 34:07
  Speaker 1: point two fifty point three to fifty point four percent majority.
• 34:10
  Speaker 1: I think two were Hispanic, one was black. I'm not
• 34:13
  Speaker 1: sure about that and that's so precise, and you could
• 34:16
  Speaker 1: do it three times, and that you were not paying
• 34:18
  Speaker 1: attention to race. But I mean there is counter evidence.
• 34:22
  Speaker 1: You know, in theory, the Supreme Court's not supposed to
• 34:24
  Speaker 1: judge the evidence that's really for the lower court. They're
• 34:27
  Speaker 1: supposed to defer lower courts on evidentiary findings. But the
• 34:30
  Speaker 1: current Supreme Court has not always followed that rule, so
• 34:33
  Speaker 1: it's hard to tell what they're going to do.
• 34:36
  Speaker 2: As you know, California has approved a redistricting plan that
• 34:40
  Speaker 2: would offset the Texas Map, which is now in serious jeopardy.
• 34:45
  Speaker 2: Tell us about the legal challenge to California's redistricting from
• 34:50
  Speaker 2: California Republicans and also now the Trump administration.
• 34:54
  Speaker 1: I mean, they're basically making the same argument that prevailed here,
• 34:58
  Speaker 1: that this is a racial gerrymander. Mean, they can't bring
• 35:01
  Speaker 1: a parties in Jerrymenner argument because, as I said, the
• 35:03
  Speaker 1: Supreme Court in La Rouco case in I think twenty
• 35:06
  Speaker 1: nineteen said those are simply not just diiciable. He can't challenge.
• 35:09
  Speaker 1: So I think they're bringing a claim that the states
• 35:11
  Speaker 1: the legislature's motivation was race. Assumely they've targeted specific districts.
• 35:16
  Speaker 1: But I think the essence of it is that it's
• 35:17
  Speaker 1: a racial jerry mender. The basic idea is similar to
• 35:21
  Speaker 1: the argument that the three judge court in Texas recognized
• 35:24
  Speaker 1: and striking down the Texas jerrymander, only.
• 35:27
  Speaker 2: The jerry mander is sort of going in the opposite direction.
• 35:31
  Speaker 2: The Justice Department argued that California's map illegally bolsters the
• 35:36
  Speaker 2: voting power of Hispanics in the state.
• 35:38
  Speaker 1: Which is interesting because, of course, in Texas, one of
• 35:42
  Speaker 1: the arguments Governor Abbott made is that this is going
• 35:44
  Speaker 1: to actually strengthen the voting power of Hispanics, although he
• 35:47
  Speaker 1: combined that basically Hispanics are becoming more Republican and this
• 35:50
  Speaker 1: is going to allow them to be able to articulate
• 35:53
  Speaker 1: that in districts to both their preference and districts. He
• 35:55
  Speaker 1: had the sentence which kind of combined the two in
• 35:57
  Speaker 1: one sentence. So, I mean, much would turn on whatever
• 36:00
  Speaker 1: evidence they have for that. There's also an argument, there's
• 36:03
  Speaker 1: been a lot of debate about this amongst the law
• 36:05
  Speaker 1: professors as to what's the significance of the fact that
• 36:08
  Speaker 1: the California redistricting was approved by the voters. But the
• 36:13
  Speaker 1: challengers have to prove that the voters were racially motivated
• 36:17
  Speaker 1: as opposed to the legislature, and I think for grabs,
• 36:19
  Speaker 1: because the public campaigning was largely on party grounds. So
• 36:23
  Speaker 1: whether or not even if there was a racial motivation
• 36:26
  Speaker 1: within the legislature, whether that was some kind of washed
• 36:29
  Speaker 1: away by the voters, or whether if it really is
• 36:32
  Speaker 1: racially tainted, whether the legislature's motivation was racial pro hispanic,
• 36:37
  Speaker 1: whether it doesn't matter that the voters voted for it
• 36:39
  Speaker 1: because they thought that I'm putting on partisan grounds. That
• 36:41
  Speaker 1: will be an interesting fight.
• 36:43
  Speaker 2: You law professors have some interesting conversations.
• 36:46
  Speaker 1: Yeah, obviously it's been all online, but it's been an
• 36:48
  Speaker 1: interesting back and forth. Whereas the government on the plaintiffs
• 36:51
  Speaker 1: first have to show that the plan was racially motivated
• 36:53
  Speaker 1: and not partisanly motivated even within the legislature, and then
• 36:57
  Speaker 1: they conclude that it was partisan even the legislature, then
• 36:59
  Speaker 1: the effective of the voter as becomes irrelevant.
• 37:02
  Speaker 2: Thanks so much, rich and for sharing those professorial insights.
• 37:06
  Speaker 2: That's Columbia Law School professor Richard Breflt. And that's it
• 37:10
  Speaker 2: for this edition of the Bloomberg Law Show. Remember you
• 37:12
  Speaker 2: can always get the latest legal news on our Bloomberg
• 37:15
  Speaker 2: Law Podcast. You can find them on Apple Podcasts, Spotify,
• 37:19
  Speaker 2: and at www dot bloomberg dot com, slash podcast slash Law,
• 37:24
  Speaker 2: and remember to tune into The Bloomberg Law Show every
• 37:27
  Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso
• 37:31
  Speaker 2: and you're listening to Bloomberg