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Weekend Law: Voting Rights, Comey Indicted & Bayer Litigation · Bloomberg Law

0:03
Speaker 1: This is Bloomberg Law with June Brossel from Bloomberg Radio.
0:09
Speaker 2: This Trump Supreme Court just throughout the protections that were
0:13
Speaker 2: earned by the Civil rights movement, those who bled, who fought,
0:20
Speaker 2: and who died so that people might have a voice.
0:24
Speaker 1: The Voting Rights Act is considered the crown jewel of
0:27
Speaker 1: the civil rights movement, and on Wednesday, the Supreme Court's
0:31
Speaker 1: conservatives took a wrecking ball to what was left of
0:35
Speaker 1: the landmark law, after having weakened it twice before. Democratic
0:40
Speaker 1: Senator Raphael Warnock said the decision is a huge step
0:44
Speaker 1: backwards for racial justice.
0:46
Speaker 2: Make no mistake, this ruling hearkens back to the darkest
0:52
Speaker 2: days of the Jim Crow era.
0:54
Speaker 1: The Court severely limited the use of the Voting Rights Act,
0:58
Speaker 1: making it difficult, if not in possible, for minorities to
1:01
Speaker 1: challenge electoral maps as racially discriminatory. It was a six
1:06
Speaker 1: to three vote, with Republican appointed justices in the majority
1:10
Speaker 1: and Democratic appointed justices in dissent, in a decision that
1:15
Speaker 1: Buttress's Republican efforts to keep control of the House in
1:19
Speaker 1: this year's midterms and beyond. My guest is one of
1:22
Speaker 1: the country's leading authorities on election law. Richard Hassen, a
1:27
Speaker 1: professor at UCLA Law School, Rick, how would you characterize
1:31
Speaker 1: this decision? Is it a game changer?
1:34
Speaker 3: This is an earthquake. It is one of the most
1:37
Speaker 3: significant decisions regarding elections that the Supreme Court has ever issued.
1:41
Speaker 1: Tell us why so.
1:43
Speaker 3: When Congress initially passed the Voter Rights Act in nineteen
1:46
Speaker 3: sixty five, it did things like assure that black voters
1:50
Speaker 3: in the South would be able to register to vote,
1:52
Speaker 3: But it didn't you anything about the lack of political
1:55
Speaker 3: power that black voters would have even when they do vote,
1:59
Speaker 3: especially in situations where white voters and minority voters prefer
2:02
Speaker 3: different candidates. In nineteen eighty two, Congress responded to that
2:07
Speaker 3: by amending Section two of the Voting Rights Act to
2:10
Speaker 3: provide that when white voters and minority voters prefer different candidates,
2:15
Speaker 3: and it's possible to draw a district where minority voters
2:18
Speaker 3: can elect their candadive choice, under some circumstances, states have
2:22
Speaker 3: to do that, and from nineteen eighty six the understanding
2:26
Speaker 3: was that this is what Section two required. What Justice
2:30
Speaker 3: Alito did in his opinion is essentially eviscerate Section two
2:35
Speaker 3: of the Voting Rights Act. Although he claims not to
2:37
Speaker 3: overrule the test that's been in place since nineteen eighty six,
2:41
Speaker 3: the so called Jingles test, he does that, and he
2:45
Speaker 3: imposes a test that will be virtually impossible for minority
2:49
Speaker 3: voters to win. This is going to lead to many
2:51
Speaker 3: more legislative bodies where there will be only or mostly
2:57
Speaker 3: white representatives, and minority voters will not have of fair
3:01
Speaker 3: representation in Congress, in state legislatures, and in local bodies
3:05
Speaker 3: like city councils and school boards.
3:07
Speaker 1: I mean, how did Justice Alito explain? What was his reasoning?
3:11
Speaker 3: So, what Justice Alito did was say that race consciousness
3:17
Speaker 3: in law is a potential violation of the Constitution. The
3:23
Speaker 3: Constitution requires a kind of race blindness when it comes
3:26
Speaker 3: to elections and comes to other areas, and so in
3:29
Speaker 3: order to keep the voting rights at constitutional he had
3:33
Speaker 3: to reconceptualize it to change the standards. What he says
3:37
Speaker 3: is that when a group of Minori voters wants to
3:41
Speaker 3: show a claim under Section two, they've got to show
3:44
Speaker 3: that if say a computer algorithm was drawing districts by chance,
3:48
Speaker 3: they would have had a chance to have this district
3:52
Speaker 3: drawn to give them the opportunity to elect a canadive choice.
3:55
Speaker 3: You can't be race conscious and drawing districts. That is
3:58
Speaker 3: turning the voter rights on its head. Further, he says
4:01
Speaker 3: that states can defend the drawing of district lines that
4:05
Speaker 3: dilute the power of minority voters by saying they're doing
4:07
Speaker 3: it to favor their political party. So Parson Jerry managering,
4:11
Speaker 3: far from being unconstitutional, becomes a defense to a voting
4:14
Speaker 3: rights case, and that is profoundly ironic. It also takes
4:19
Speaker 3: the idea that someone in Alabama could pass a law
4:24
Speaker 3: that would favor Republicans but not favor white voters. It
4:27
Speaker 3: just makes no sense given the tremendous overlap of race
4:29
Speaker 3: and party in these cases.
4:31
Speaker 1: Alito, I understand when he was reading parts of his
4:34
Speaker 1: decision from the bench, said basically, don't listen to the descent.
4:39
Speaker 1: This is not really a big deal. I mean, why
4:42
Speaker 1: do you think they kept the Voting Rights Act? Is
4:45
Speaker 1: it for appearance's sake? So they could say this isn't
4:47
Speaker 1: a big deal. Don't look here.
4:49
Speaker 3: So in twenty twenty one, Justice Alito wrote a majority
4:52
Speaker 3: opinion for the Court in a case called Bernovich versus DNC.
4:55
Speaker 3: When that case came out, I said, what Justice Alito
4:58
Speaker 3: has done is essentially this ray the Voting Rights Act
5:01
Speaker 3: Section two as applied outside of redistricting. And since that case,
5:06
Speaker 3: as I recounted in a recent Law Review article that
5:08
Speaker 3: Justice Kagan cited in her descent, there has been no
5:11
Speaker 3: successful case under section two since Bernovich outside of redistricting.
5:16
Speaker 3: He's doing the same thing here. In Bernovich, he pretended
5:19
Speaker 3: he wasn't overturning the Voting Rights Act, but he imposed
5:21
Speaker 3: such a test. He doesn't want to take the political
5:23
Speaker 3: heat for overturning the Act, but he essentially renders the
5:27
Speaker 3: dead letter. As Justice Kagan says in her descent.
5:29
Speaker 1: Justice Kagan said, the decision completes the Supreme Court's three
5:34
Speaker 1: step plan to eliminate the protections of the Voting Rights
5:38
Speaker 1: Act that started in twenty thirteen the Shelby County case.
5:42
Speaker 1: Can you tell us about those three steps?
5:45
Speaker 3: So there were two key parts to the Voting Rights
5:48
Speaker 3: Act until twenty thirteen. One part, as you mentioned, is
5:52
Speaker 3: Section five of the Act that required states with the
5:54
Speaker 3: history of racial discrimination and voting to get federal approval
5:57
Speaker 3: before they made changes in their voting rules, and they'd
5:59
Speaker 3: have to show that the changes wouldn't make minority voters
6:02
Speaker 3: worse off in Shelby County. In the John Roberts opinion,
6:05
Speaker 3: the conservats on the Court said that the formula used
6:08
Speaker 3: to figure out which states are covered under Section five
6:12
Speaker 3: was outdated and therefore unconstitutional. But the majority of Shortness
6:16
Speaker 3: don't worry. There's always Section two to protect minority voters.
6:19
Speaker 3: Then came step two, that Bernovich case, where the Court
6:22
Speaker 3: said Section two, outside of the context of redistricting is
6:26
Speaker 3: essentially a dead letter. And here comes the third and
6:28
Speaker 3: final step, which is Justice Alito in his opinion in
6:32
Speaker 3: Calai saying, here's what Section two means. Now, essentially rendering
6:37
Speaker 3: Section two a dead letter as it applies to redistricting.
6:40
Speaker 3: This is going to bleach all of these legislative bodies.
6:44
Speaker 3: It is going to make it very difficult, if not impossible,
6:47
Speaker 3: for minority voters to win in any of these lawsuits.
6:50
Speaker 1: Is there anything left of the Voting Rights Act?
6:52
Speaker 3: Well, there are parts of the Voting Rights Act that survive.
6:54
Speaker 3: For example, there's a ban on literacy tests. There are
6:57
Speaker 3: other requirements of the Voting Rights Act. But the two
6:59
Speaker 3: big parts of the Voting Rights Act Section two and
7:02
Speaker 3: section five are there in a shell only, and it
7:06
Speaker 3: is a sad day for voting rights and democracy in
7:08
Speaker 3: the United.
7:09
Speaker 1: States, and progressive groups have calculated that as many as
7:13
Speaker 1: nineteen congressional districts with primarily black or Hispanic populations are
7:19
Speaker 1: at risk.
7:20
Speaker 3: I do want to make an important point which I
7:22
Speaker 3: think some people are missing, which is that not only
7:24
Speaker 3: will Republicans have an incentive to get rid of these
7:27
Speaker 3: districts sobal democrats. Democrats will want to take their reliable
7:31
Speaker 3: black voters and spread them out in more democratic districts,
7:35
Speaker 3: thereby decreasing the number of Minoriti opportunity districts, but still
7:40
Speaker 3: helping Democrats win their elections. And so I think the
7:43
Speaker 3: real losers here are Minoriti voters and the American people overall.
7:47
Speaker 3: If we're going to live in a multi racial democracy,
7:49
Speaker 3: we need to have fair representation for all people.
7:51
Speaker 1: Republicans in the South are already calling for new maps
7:55
Speaker 1: to be drawn because of this decision. How do you
7:58
Speaker 1: think it will affect the midterms?
8:00
Speaker 3: It's not clear how this decision will affect the midterms
8:02
Speaker 3: because many states have already conducted their primaries and it
8:06
Speaker 3: would be unusual to go back and redraw lines and
8:10
Speaker 3: require there to be a new set of primaries. But
8:12
Speaker 3: there are some places, most importantly in Florida, where they
8:15
Speaker 3: already right now considering a new districting plan. They can
8:19
Speaker 3: now consider a districting plan that doesn't have to take
8:22
Speaker 3: into account the requirement to draw districts that were thought
8:26
Speaker 3: necessary under Section two of the Voting Rights Act. And
8:28
Speaker 3: so in Florida and maybe a few other places where
8:31
Speaker 3: they have not held primaries, we could see some redrawing
8:33
Speaker 3: of district lines.
8:34
Speaker 1: But in twenty twenty eight we may see the full
8:37
Speaker 1: effects of this decision.
8:39
Speaker 3: I fully expect states like Louisiana and Alabama, if they
8:42
Speaker 3: can't get done in time for twenty twenty six, to
8:44
Speaker 3: certainly get redistricting diluting minority voting power in time for
8:48
Speaker 3: twenty twenty eight.
8:49
Speaker 1: As you know, President Trump started this mid decade redistricting battle.
8:55
Speaker 1: Does this decision affect the redistricting that's been done in Texas, Foreigna, Virginia,
9:01
Speaker 1: et cetera. Are any of those maps affected or it
9:05
Speaker 1: doesn't matter because they were done for partisan reasons.
9:09
Speaker 3: Well, that's a hard question to answer, because Parson jerry
9:12
Speaker 3: manadering is now a defense, and so that should render
9:15
Speaker 3: maps drawn for partisan reasons immune from Section two claims.
9:19
Speaker 3: But I should say that the Virginia maps which were
9:22
Speaker 3: recently passed by voters may or may not survive state
9:26
Speaker 3: court review in the Virginia Supreme Court, and so there's
9:30
Speaker 3: still some question marks as to exactly what the lines
9:33
Speaker 3: are going to be for the remaining primaries. In twenty
9:35
Speaker 3: twenty six.
9:37
Speaker 1: The Supreme Court has been accused more and more of
9:39
Speaker 1: being political, though Chief Justice John Roberts likes to talk about,
9:44
Speaker 1: you know, we're not politicians. Does this decision with six
9:47
Speaker 1: Republicans on one side and the Democrats on the other,
9:51
Speaker 1: does this make it even more political or seem even
9:53
Speaker 1: more political?
9:55
Speaker 3: Well, I think it's very clear that the Conservatives on
9:57
Speaker 3: the Supreme Court are helping, whether intentionally or not, the
10:01
Speaker 3: Republican political agenda.
10:03
Speaker 4: I think the general mood.
10:04
Speaker 3: Of the Supreme Court is that, you know, you can
10:07
Speaker 3: do anything for parson advantage, and the Supreme Court is
10:11
Speaker 3: not going to police it. And so whether the justices
10:15
Speaker 3: honestly believe that they're simply applying jurisprudence or they are
10:19
Speaker 3: partisan hacts, as Justice Barrett claimed, they were not, It
10:23
Speaker 3: doesn't really matter. The effect is going to be the same,
10:25
Speaker 3: and the effect is going to be to help the
10:27
Speaker 3: Republican Party.
10:28
Speaker 1: Could Congress pass a law to get around this.
10:31
Speaker 3: Congress could pass a law revitalizing the Voting Rights Act
10:34
Speaker 3: because this was a matter of statutory interpretation, not a
10:38
Speaker 3: constitutional decision, and so that would dare the Supreme Court
10:42
Speaker 3: to actually do something and strike it down again. I
10:46
Speaker 3: think that this decision is going to lead to more
10:48
Speaker 3: calls for Supreme Court reform because pretty clear what the
10:52
Speaker 3: political direction of the majority of the Court is, and
10:55
Speaker 3: it's quite a partisan direction.
10:57
Speaker 1: You've written that this is the worst Supreme Court ruling
11:00
Speaker 1: in a century. Explain why.
11:03
Speaker 3: Well, when it comes to voting rights, Section two was
11:06
Speaker 3: really revolutionary and assuring we could have a more multi
11:09
Speaker 3: racial democracy, and the Supreme Court by churning the Reconstruction
11:13
Speaker 3: Amendments on their head and making race consciousness, which Congress
11:18
Speaker 3: required in Section two, something that is constitutionally suspect. What
11:24
Speaker 3: the Court is going to do is going to change
11:26
Speaker 3: the nature of political representation in this country, bringing us
11:30
Speaker 3: back to a time well before the passage of the
11:33
Speaker 3: Voting Rights Act amendments in nineteen eighty two.
11:35
Speaker 1: It's been great having you on, Rick, Thanks so much.
11:38
Speaker 1: That's professor Rick Hassen of UCLA Law School. Coming up next.
11:42
Speaker 1: James Comy is indicted for a second time. I'm June
11:46
Speaker 1: Grosso and you're listening to Bloomberg. The Justice Department has
11:51
Speaker 1: indicted former FBI director James Comy for the second time
11:56
Speaker 1: in seven months, this time based on an Instagram post
12:00
Speaker 1: from a year ago of seashells on a beach arranged
12:03
Speaker 1: in the numbers eighty six forty seven. The government claims
12:07
Speaker 1: that amounts to a threat against President Trump, the forty
12:11
Speaker 1: seventh president, and Trump told reporters this week that Komy's
12:15
Speaker 1: post probably put his life in danger.
12:18
Speaker 3: Eighty six.
12:19
Speaker 4: You know it's a mob term for kill him.
12:23
Speaker 1: You know, you ever see the movies eighty six the
12:26
Speaker 1: mobster says to one of his wonderful associates eighty six
12:30
Speaker 1: that means kill him. Komy said at the time of
12:33
Speaker 1: the post that he assumed the numbers reflected a political message,
12:37
Speaker 1: and he deleted the post when he learned some people
12:40
Speaker 1: were interpreting it as a call to violence. The first
12:43
Speaker 1: indictment against him on unrelated false statement and obstruction charges
12:48
Speaker 1: was dismissed by a judge because the interim US attorney
12:52
Speaker 1: had been improperly appointed. Komy says he's innocent of these
12:56
Speaker 1: charges as well.
12:58
Speaker 4: Welder Beech time about a picture of seashells on a
13:03
Speaker 4: North Carolina beach a year ago, and this won't be
13:06
Speaker 4: the end of it. But nothing has changed with me.
13:10
Speaker 4: I'm still innocent, I'm still not afraid, and i still
13:14
Speaker 4: believe in the independent federal judiciary. So let's go.
13:17
Speaker 1: It's a bare bones, two page indictment, and even Republican
13:22
Speaker 1: Senator Tom Tillis said he hopes the Justice Department has
13:26
Speaker 1: more evidence.
13:27
Speaker 5: Gouy searts to the end of the internet last night.
13:29
Speaker 5: I can't find one example where the number eight six
13:32
Speaker 5: had anything to do with any violent threat, So hopefully
13:37
Speaker 5: there's more to it than just the picture in the sand.
13:39
Speaker 1: Joining me is former federal prosecutor Robert Mintz, a partner
13:43
Speaker 1: McCarter in English, Bob, the term eighty six is ambiguous.
13:48
Speaker 1: Is it going to be a challenge for prosecutors to
13:51
Speaker 1: prove that this was even a threat.
13:53
Speaker 6: So the first question that any juror or judge is
13:56
Speaker 6: going to ask when they take a look at this
13:58
Speaker 6: case is to focus on what does eighty six forty
14:02
Speaker 6: seven mean? You have to go back and take a
14:04
Speaker 6: look at the original derivation of the term eighty six,
14:08
Speaker 6: And apparently the prevailing view is that it started somehow
14:12
Speaker 6: in the restaurant business, and it really had to do
14:15
Speaker 6: with the fact that an item on the menu was
14:17
Speaker 6: no longer available, or that a customer at a restaurant
14:20
Speaker 6: was going to be asked to leave the restaurant. And
14:23
Speaker 6: it's only recently that it's come up in a political context.
14:27
Speaker 6: One of the most prominent use of the term eighty
14:30
Speaker 6: six in the last several years was back in February
14:33
Speaker 6: of twenty twenty four, when at the time, Representative Matt
14:37
Speaker 6: Gates of Florida posted we've now eighty six McCarthy McDaniel, McConnell,
14:42
Speaker 6: which was apparently a reference to Kevin McCarthy losing his
14:47
Speaker 6: House speakership, Republican National Committee chair Ron McDaniel leaving her role,
14:52
Speaker 6: and Senator Mick McConnell announcing he would step down as
14:55
Speaker 6: Majority leader. So we've seen the term eighty six used
14:59
Speaker 6: in aolitical context, sometimes meaning to get rid of a
15:03
Speaker 6: political leader. Here, the government apparently is going to try
15:06
Speaker 6: to convince a jury ultimately that this was a statement
15:11
Speaker 6: by former Director Komy to incite violence against the president,
15:15
Speaker 6: and when he said eighty six forty seven, he was
15:18
Speaker 6: arguing that the president should be assassinated. That's really the
15:23
Speaker 6: heart of what this prosecution will ultimately be about.
15:26
Speaker 1: And what's the standard of proof here?
15:29
Speaker 6: Yeah, so this is a very high legal standard in
15:31
Speaker 6: this case. Mister Komi was charged under a statute that
15:36
Speaker 6: criminalizes the act of knowingly and wilfully making any threat
15:41
Speaker 6: to take the life of to kidnap, or to inflict
15:44
Speaker 6: bodily harmed upon the President.
15:45
Speaker 4: Of the United States, and the.
15:47
Speaker 6: Second count in the indictment criminalizes making those threats through
15:51
Speaker 6: interstate communications. But the real question is what did mister
15:56
Speaker 6: Komy intend when he posted that Instagram footdo He claims
16:01
Speaker 6: that it was political speech and that he had no
16:04
Speaker 6: intention to do violence or to try to incite anybody
16:07
Speaker 6: else to do violence. So prostutors here are gonna have
16:10
Speaker 6: to overcome not only the common sense definition by mister
16:14
Speaker 6: Comy's outright denial that he intended to threaten the president.
16:19
Speaker 1: Let's talk about possible defenses. Comy's lawyer said, we look
16:23
Speaker 1: forward to vindicating mister Comy and the First Amendment.
16:27
Speaker 6: Well, I think there's going to be a whole host
16:29
Speaker 6: of defenses here. First and foremost, I think, is this
16:33
Speaker 6: First Amendment question, because there is a long history here
16:38
Speaker 6: of the courts interpreting that statute and weighing it against
16:43
Speaker 6: First Amendment rights. The original Supreme Court case of Brandenburg
16:47
Speaker 6: versus Ohio held the constitutional guarantees of free speech and
16:50
Speaker 6: free press don't permit a law to forbid or prescribe
16:54
Speaker 6: advocacy of the use of force or of law violation,
16:58
Speaker 6: except in limited circumstances where the person making a statement
17:03
Speaker 6: is inciting or producing imminent lawless action. In other cases,
17:08
Speaker 6: even more recently made it even harder to bring these cases.
17:12
Speaker 6: So these types of threat cases are always viewed through
17:15
Speaker 6: the lens of First Amendment rights. And the most recent case,
17:19
Speaker 6: the one that really is the binding precedent right now,
17:23
Speaker 6: set the threshold even higher. In twenty fifteen, it was
17:26
Speaker 6: actually an opinion written by Justice Roberts, and it concluded
17:31
Speaker 6: that the mindset of the person who made the comment
17:34
Speaker 6: must be considered. It's not enough for the subject of
17:37
Speaker 6: a comment to view it as a threat. The person
17:40
Speaker 6: who made it must have intended it that way. So
17:43
Speaker 6: they have to get inside of Jim Comey's head and
17:46
Speaker 6: try to argue that he intended this as a real
17:49
Speaker 6: threat to the president. And one of the things that's
17:51
Speaker 6: going to be interesting here is when you look at
17:53
Speaker 6: the indictment that's brought, and it's very bare bones. It
17:56
Speaker 6: does not have much information in it at all, but
17:59
Speaker 6: it does site to certain language which was read before
18:04
Speaker 6: the grand jury if things were done here as they
18:06
Speaker 6: typically are, and the standard that was read to the
18:09
Speaker 6: grand jury was that mister Comy knowingly and Wilfley made
18:13
Speaker 6: a threat to take the life where inflick bodily harm
18:15
Speaker 6: upon the president. And then they talk about the photograph
18:19
Speaker 6: and they say which a reasonable recipient who was familiar
18:22
Speaker 6: with the circumstances would interpret as a serious expression of
18:26
Speaker 6: intent to do harm to the president of the United States.
18:29
Speaker 6: I expect that one of the first things the defense
18:32
Speaker 6: is going to do is argue that the presentation before
18:35
Speaker 6: the grand jury was tainted because that standard that I
18:38
Speaker 6: just read was a standard from a case that had
18:41
Speaker 6: been overruled by the more recent case of twenty fifteen
18:45
Speaker 6: that said that you have to look beyond what the
18:48
Speaker 6: reasonable recipient would interpret from those comments. You also have
18:52
Speaker 6: to specifically look at what the speaker meant when they
18:55
Speaker 6: made those comments. I think the defense is going to
18:58
Speaker 6: argue that the grand jury was given improper legal advice
19:03
Speaker 6: where they were given the improper legal standard when they
19:05
Speaker 6: returned that indictment. So that will certainly be one of
19:08
Speaker 6: the issues that I think we'll see raised by the defense.
19:10
Speaker 1: And Bob, there's that case from nineteen sixty six over
19:14
Speaker 1: the draft that really illustrates how the First Amendment interest
19:18
Speaker 1: is weighed in these threat cases.
19:21
Speaker 6: These types of cases, which may appear on their face
19:24
Speaker 6: to be simply threats against the president, could also be
19:28
Speaker 6: viewed as political speech. This very statue was interpreted in
19:32
Speaker 6: the case called Wats versus the United States, and in
19:34
Speaker 6: that case, a protester was convicted for saying, if they
19:38
Speaker 6: ever make me carry a rifle, the first man I
19:41
Speaker 6: want to get in my sights is LBJB, a reference
19:45
Speaker 6: to President Johnson. At the time, that individual was convicted,
19:49
Speaker 6: but it made its way to the Supreme Court, where
19:52
Speaker 6: the court said that that was political hyperbole rather than
19:55
Speaker 6: a true threat, and thus not within the prohibition of
19:59
Speaker 6: this statf So it's an example of just how specific
20:03
Speaker 6: and how imminent these threats have to be and why
20:06
Speaker 6: the courts have at least traditionally looked at this kind
20:09
Speaker 6: of language as political language rather than a call to violence.
20:14
Speaker 6: And in this case, I think it's going to be
20:16
Speaker 6: an uphill battle for prosecutors to prove that this was
20:21
Speaker 6: not political speak, that this was an actual imminent threat
20:24
Speaker 6: made by James Comy against the president.
20:27
Speaker 1: Komy's lawyer told the judge that they're going to challenge
20:30
Speaker 1: the case by claiming a vindictive and selective prosecution. So
20:35
Speaker 1: not only is this the second indictment against Komy, but
20:38
Speaker 1: according to Bloomberg's sources, federal prosecutors are pursuing additional charges
20:44
Speaker 1: against Komy for allegedly leaking classified information.
20:49
Speaker 6: They will try to argue that the Justice Department already
20:53
Speaker 6: pursued a case against mister Comy less than a year ago,
20:57
Speaker 6: which was ultimately dismissed by a judge based upon the
21:00
Speaker 6: finding that the prosecutor at the time was not properly appointed.
21:05
Speaker 6: So they're going to try to argue that this is
21:07
Speaker 6: just another attempt by the Trump administration to go after
21:11
Speaker 6: one of mister Trump's perceived enemies, James Comy, and that
21:15
Speaker 6: there's really no merit to this case, that this case
21:18
Speaker 6: should not have been brought in the first place, and
21:21
Speaker 6: that at best, this is a politically veiled attempt to
21:25
Speaker 6: try to go after mister Comy after having failed with
21:29
Speaker 6: the other prosecution.
21:31
Speaker 1: Many commentators have noticed a pattern where Acting Attorney General
21:35
Speaker 1: Todd Blanche, who used to be Trump's personal criminal lawyer,
21:39
Speaker 1: seems to be pushing to bring cases against Trump's perceived
21:43
Speaker 1: political enemies, and they're very thin. For example, the one
21:47
Speaker 1: recently against the Southern Poverty Law Center. Many say he's
21:51
Speaker 1: trying out for the role of Attorney General.
21:54
Speaker 6: Well, he has made statements directly addressing the evidence in
21:59
Speaker 6: the case. He under stands what the legal standard is,
22:02
Speaker 6: and he is saying that the government has additional evidence
22:05
Speaker 6: that will prove beyond a reasonable doubt that mister Comy
22:09
Speaker 6: intended that photograph as a threat against the president. We
22:12
Speaker 6: haven't seen that evidence yet, but prosecutors have an ethical
22:16
Speaker 6: duty to bring cases only if a reasonable jury could
22:21
Speaker 6: convict based upon that high standard of beyond a reasonable doubt.
22:25
Speaker 6: So just getting the indictment doesn't mean there's enough evidence
22:29
Speaker 6: to ultimately gain the conviction. And that's the situation where
22:32
Speaker 6: prosecutors have to look at the case and even though
22:35
Speaker 6: they know they could go into a grand jury and
22:39
Speaker 6: get that grand jury to indict based upon the lower
22:41
Speaker 6: legal standard, they have an ethical obligation not to bring
22:44
Speaker 6: the case if they know that the evidence is insufficient
22:47
Speaker 6: for a reasonable jury to convict ultimately on that higher
22:51
Speaker 6: beyond a reasonable doubt standard. At this point, it's hard
22:54
Speaker 6: to see how prosecutors could look at the evidence that's
22:58
Speaker 6: on the record and that a reasonable jury could find
23:02
Speaker 6: that mister Comy intended this as a threat. There's too
23:06
Speaker 6: much ambiguity in the statement. There's too much ambiguity in
23:09
Speaker 6: terms of his conduct that in and of itself is
23:12
Speaker 6: reasonable doubt. And on the defense side, that's all you
23:14
Speaker 6: have to show. You just have to show that the
23:16
Speaker 6: government did not prove its case beyond a reasonable doubt,
23:20
Speaker 6: and prosecutors are going to have to come up with
23:22
Speaker 6: additional evidence if they hope to get this case to
23:25
Speaker 6: trial and have any chance of winning.
23:27
Speaker 1: Do you think a judge might dismiss the case before
23:30
Speaker 1: it goes to trial.
23:31
Speaker 6: I do think that's a possibility. And I say that
23:33
Speaker 6: knowing that it is exceedingly rare for judges to dismiss
23:38
Speaker 6: a criminal case before it goes to a jury. All
23:42
Speaker 6: prosecutors have to do is get an indictment properly before
23:46
Speaker 6: a grand jury. The indictment has to allege the elements
23:50
Speaker 6: of the crime, and that is enough to get the
23:53
Speaker 6: case beyond motion practice and in front of a jury.
23:57
Speaker 6: In this case, I think there is a reasonable possibility
24:01
Speaker 6: that a judge is going to look at this. Number One,
24:04
Speaker 6: they're going to look at the legal standard that was
24:06
Speaker 6: included in the indictment, and if that was deficient or
24:10
Speaker 6: misleading or incorrect, that's one basis that this could be dismissed.
24:14
Speaker 6: And then the judge still may look at this case
24:17
Speaker 6: and try to decide if there's enough evidence that a
24:20
Speaker 6: reasonable jury could actually convict. Now, defense lawyers here could
24:25
Speaker 6: do one a few things. They could immediately challenge the
24:28
Speaker 6: indictment as legally insufficient. Another thing they could do is
24:31
Speaker 6: they could move for a bill of particulars, which is
24:34
Speaker 6: a way the defense team could say to the prosecution,
24:37
Speaker 6: we want more information, more details about what evidence supports
24:42
Speaker 6: this indictment.
24:43
Speaker 1: I'm sure the defense is going to act quickly here
24:46
Speaker 1: as they did last time. Thanks so much, Bob. That's
24:49
Speaker 1: Robert Mince of McCarter and English coming up. Bayer has
24:53
Speaker 1: a tough time at the Supreme Court. I'm June Grosso
24:56
Speaker 1: and this is Bloomberg. Bayer has faced a tidal wave
25:01
Speaker 1: of litigation alleging that its round up weed killer causes
25:05
Speaker 1: cancer and resulting in some stunning multi billion dollar jury verdicts.
25:11
Speaker 1: In a case before the Supreme Court this week, a
25:14
Speaker 1: jury had awarded a Missouri man one point twenty five
25:18
Speaker 1: million dollars after finding that Beyer failed to warn him
25:21
Speaker 1: about possible cancer risks. Beyer argues that federal law bars
25:26
Speaker 1: the lawsuit because US regulators didn't require a cancer warning.
25:31
Speaker 1: Its attorney, former Solicitor General Paul Clement, put it simply.
25:36
Speaker 7: The EPA regulation and the government's brief here makes crystal
25:40
Speaker 7: clear that a registrant cannot change the safety warnings on
25:44
Speaker 7: a pesticide label without approval of the agency. Thus, Missouri
25:49
Speaker 7: law here requires something that not only is not required
25:53
Speaker 7: by federal law, but that federal law doesn't even allow.
25:57
Speaker 1: The questioning during the oral arguments and follow the usual
26:01
Speaker 1: ideological lines, for example, When Liberal Justice Elaina Kagan questioned
26:06
Speaker 1: the plaintiff's lawyer, Ashley Keller, about how these lawsuits for
26:10
Speaker 1: failure to warn could be squared with a provision in
26:13
Speaker 1: federal law requiring uniformity in herbicide labels, and Keller denied
26:19
Speaker 1: that the lawsuit would undercut uniformity. Conservative Justice Brett Cavanaugh
26:24
Speaker 1: pushed back, just to be simple minded about this, mister Keller,
26:28
Speaker 1: you have a preemption provision that's labeled uniformity, that's clearly
26:32
Speaker 1: designed to achieve uniformity in labeling.
26:35
Speaker 8: And what uniformity would you e regime.
26:38
Speaker 6: Achieve uniformity in law?
26:41
Speaker 7: You think it's uniformity when each state can require different things.
26:44
Speaker 6: I don't think each state can require different things. The
26:47
Speaker 6: law has to be uniform. So if Missouri law was,
26:51
Speaker 6: in addition to our difference.
26:52
Speaker 1: The labels illegal in one state and legal in another state,
26:56
Speaker 1: that's uniformity. But Chief Justice John Roberts a conservative question
27:01
Speaker 1: the notion that states worried about cancer risks should have
27:05
Speaker 1: to wait for the EPA to decide whether to acquire
27:08
Speaker 1: a label change.
27:10
Speaker 9: Well in US, undermining uniformity. I appreciate that. On the
27:12
Speaker 9: other hand, if it turns out that they were right.
27:15
Speaker 9: It might have been good if they had an opportunity
27:17
Speaker 9: to do something to call this danger to the attention
27:21
Speaker 9: of the people while the federal government was going through
27:25
Speaker 9: its process.
27:26
Speaker 1: The litigation has already cost Bayer more than ten billion dollars,
27:31
Speaker 1: and the company is looking for an endgame. My guest
27:34
Speaker 1: is an expert in mass tort litigation, Elizabeth Birch, a
27:38
Speaker 1: professor at the University of Georgia Law School. She's the
27:42
Speaker 1: author of the new book The Pain Brokers, about a
27:45
Speaker 1: mass tort litigation scam.
27:47
Speaker 3: Bet.
27:48
Speaker 1: This was one of the first cases that went to
27:50
Speaker 1: trial against Bayer.
27:51
Speaker 8: Right, Yeah, so this was a state court case coming
27:54
Speaker 8: out of Missouri. And you know, this is one of
27:57
Speaker 8: quite a few verdicts that have been decided against Bear,
28:01
Speaker 8: although not all of them have gone that way. And
28:04
Speaker 8: at the moment, Bear is also trying to negotiate a
28:08
Speaker 8: class action settlement and state court, which is ironic for
28:11
Speaker 8: any number of reasons, but you know, this is one
28:14
Speaker 8: of those pressure points, the idea of being, hey, you'd
28:17
Speaker 8: better suggle with us in state court, otherwise your claims
28:21
Speaker 8: might be diminished in terms of their value. If this
28:24
Speaker 8: is a decision that goes our way.
28:26
Speaker 1: Put this into the context of the massive litigation against Bayer.
28:31
Speaker 1: There have been a couple of really eye popping verdicts
28:34
Speaker 1: of more than two billion dollars for a single plaintiff.
28:38
Speaker 8: Yes, there have. So this litigation has been going on
28:41
Speaker 8: for a number of years now. It is centralized in
28:45
Speaker 8: California in front of Judge Chabria at the federal NBL level.
28:49
Speaker 8: There are a number of state court cases that are
28:52
Speaker 8: also pending, and Bear has really been looking for some
28:55
Speaker 8: sort of end game and way out to this. This
28:59
Speaker 8: is certainly a pe piece of that in front of
29:01
Speaker 8: the Supreme Court. Although you know, even a win in
29:04
Speaker 8: front of the Supreme Court wouldn't kill all of the lawsuits.
29:07
Speaker 8: It would make them more difficult to proceed, certainly on
29:10
Speaker 8: the failure to Warren claims, but the plaintiffs have also
29:12
Speaker 8: brought defective design claims. So this is really been a
29:15
Speaker 8: thorn in the side of Bear for years now.
29:18
Speaker 1: Tell us about the main issue in this case.
29:22
Speaker 8: Well, the issue that is in front of the Supreme
29:24
Speaker 8: Court right now is a question about preemption, and it
29:28
Speaker 8: is in some ways a fairly narrow question of preemption
29:31
Speaker 8: that's based on this Pesticide Act, and it's a question
29:35
Speaker 8: about whether the federal law can preempt state law decisions
29:39
Speaker 8: on failure to Warren claims.
29:41
Speaker 1: So Behar says that the federal law preempts the state law.
29:45
Speaker 1: What's the response of the plaintiff.
29:47
Speaker 8: You know, the planiffs are making a number of arguments.
29:49
Speaker 8: I think the one that is most intuitive is that
29:52
Speaker 8: once the EPA approves a particular label, things can happen
29:57
Speaker 8: and things can change. So, you know, in tho case,
29:59
Speaker 8: the label was approved more than a decade ago, and
30:03
Speaker 8: there is some evidence that there is a link between glycophosphate,
30:07
Speaker 8: which is the key ingredient in roundup and on Hodgkin's lymphoma.
30:11
Speaker 8: That has been at the heart of this controversy for
30:14
Speaker 8: a number of years. The World Health Organization has said
30:17
Speaker 8: that there is a possible carcinogen and glycophosphate. The EPA
30:21
Speaker 8: has been more reluctant to embrace that decision. And so,
30:25
Speaker 8: you know, the big question is, well, what about emerging science.
30:28
Speaker 8: You know, if it turns out that you have a
30:30
Speaker 8: label that's approved many many years behind, isn't there some
30:34
Speaker 8: sort of responsibility. I'm part of the company to keep
30:37
Speaker 8: up with the science and to continue to warn consumers
30:40
Speaker 8: when there is a change in that science.
30:42
Speaker 1: In all these cases, questions about glycophosphates connection to cancer
30:48
Speaker 1: are part of the litigation.
30:50
Speaker 8: There is different scientific support on one side versus together.
30:54
Speaker 8: And this is a question right now in front of
30:57
Speaker 8: the courts about whether there is general causation between exposure
31:02
Speaker 8: to glycophosphate and how much and the development of non
31:07
Speaker 8: Hodgkins slump foma. Again, there's a significant latency period here.
31:11
Speaker 8: It can be you know, fourteen fifteen years between the
31:14
Speaker 8: exposure and the development of cancer. So there's all sorts
31:17
Speaker 8: of general causation questions, which is can glycophosphate cause this
31:21
Speaker 8: particular disease? And then specific causation questions, which is did
31:25
Speaker 8: it cause this particular plaintiffs on hotchkinsom foma, and.
31:29
Speaker 1: The Trump administration has sort of embraced glycophosphate.
31:34
Speaker 8: You know, it's interesting, So the Trump administration has very
31:37
Speaker 8: much embraced glycophosphate, but it is something that is dividing
31:42
Speaker 8: the Trump base. You know, Robert Kennedy for a number
31:45
Speaker 8: of years actually represented plaintiffs against Montanto, and a key
31:50
Speaker 8: piece of them make America healthy again is to reduce
31:55
Speaker 8: the use of testicized like glycophosphate. And so if there
31:58
Speaker 8: were a number of protests in front of the Supreme
32:01
Speaker 8: Court that included MAHA supporters who were protesting against the
32:05
Speaker 8: use of round up.
32:07
Speaker 1: So from the oral arguments, it seemed like the justices
32:10
Speaker 1: were divided.
32:12
Speaker 8: Yeah, I mean, they certainly seemed divided, and it didn't
32:16
Speaker 8: fall neatly along conservative liberal lines. So you know, you
32:20
Speaker 8: had some justices you would have thought might be supportive
32:24
Speaker 8: of their who in fact were less supportive of their
32:27
Speaker 8: than you might imagine. And then you had a number
32:28
Speaker 8: of the liberal justices who were actually not seeming like
32:32
Speaker 8: they were in favor of bear. So it'll be interesting
32:35
Speaker 8: to see what this opinion ultimately yields, because it doesn't
32:39
Speaker 8: have the kind of clear lines that we often expect
32:42
Speaker 8: among these types of hot button issues.
32:45
Speaker 1: And what do you make of the Chief Justice suggesting
32:48
Speaker 1: that states considering new evidence that a product is risky
32:53
Speaker 1: should be allowed to call this danger to the attention
32:56
Speaker 1: of the people.
32:57
Speaker 8: I mean, I think that goes back to if there
33:00
Speaker 8: is new and emerging evidence, does that mean that the
33:04
Speaker 8: hands of the company are tied that they can't warn
33:07
Speaker 8: consumers that, hey, you might need to have some sort
33:10
Speaker 8: of personal protective equipment, or hey, this might have some
33:13
Speaker 8: sort of link to cancer, because the EPA has already
33:18
Speaker 8: sort of put that in place. The foot side of
33:20
Speaker 8: all this is that there is evidence that a number
33:22
Speaker 8: of companies, even in light of old EPA warnings, have
33:27
Speaker 8: changed their own labels. And so you know, that came
33:30
Speaker 8: up and some of the questioning saying, well, you know
33:32
Speaker 8: companies are doing this all the time, why shouldn't tie
33:35
Speaker 8: the hands of companies if this is what they're doing already,
33:38
Speaker 8: And so that was kind of one of the points
33:40
Speaker 8: of contention that came up.
33:42
Speaker 1: And tell us about questions of uniformity in the law,
33:46
Speaker 1: which Justices Kagan and Kavanaugh quiz the plaintiff's attorney on I.
33:53
Speaker 8: Mean, I think the question is is this an instance
33:56
Speaker 8: in which you really want uniformity in the law, and
33:59
Speaker 8: you want uniform law to preempt what the states are doing.
34:04
Speaker 8: And so you know, if you have California saying you
34:07
Speaker 8: need to warn we think that there is some sort
34:09
Speaker 8: of link between glycopho state and non hodgkinsom foma, does
34:14
Speaker 8: that mean that you have to put a label in
34:17
Speaker 8: California and nowhere else in the United States. Do you
34:20
Speaker 8: have this sort of state by state regulatory scheme or
34:23
Speaker 8: do you have federal preemption in telling you what has
34:26
Speaker 8: to be there? And it seems like there's also this
34:28
Speaker 8: sort of related question of how much can a company
34:32
Speaker 8: do even in the wake of the EPA not requiring it.
34:37
Speaker 8: You know, so can you go ahead and put a
34:38
Speaker 8: label on there saying, hey, we're worried this might cause
34:41
Speaker 8: cancer even if the EPA doesn't require you to do it.
34:45
Speaker 1: And farm groups filed briefs in supportive Bayer, arguing that
34:49
Speaker 1: a uniform standard is better than a patchwork of state rules.
34:55
Speaker 8: I get the sense that the farm community is split.
34:57
Speaker 8: I mean, there were a number of the MAH supporters
35:01
Speaker 8: who were concerned about farmers and about you know, farmers
35:05
Speaker 8: exposure to the use of roundup. And I think many
35:07
Speaker 8: of the farmers echoed that the flip side is that,
35:11
Speaker 8: you know, they find that it is a very effective
35:13
Speaker 8: weak killer, and so you know, this is something that
35:16
Speaker 8: many of them want to continue using. So I don't
35:19
Speaker 8: think there's uniformity in, hey, all farmers want this, or
35:22
Speaker 8: all farmers don't want this.
35:24
Speaker 1: Bloomberg Intelligence litigation analyst Holly From said the arguments went
35:29
Speaker 1: poorly for Beyor and changed her view. She now thinks
35:33
Speaker 1: the majority of justices will find state law failure to
35:37
Speaker 1: warn claims are not preempted by federal law, so a
35:42
Speaker 1: loss for Beayor and consumers can pursue these claims.
35:47
Speaker 8: Yeah, I think it's really hard to say. I don't
35:50
Speaker 8: think the argument was as clearly in favor of Bear
35:55
Speaker 8: as many people had expected it to be. So in
35:58
Speaker 8: that regard, you know, it was a bit of a
36:00
Speaker 8: blow to Bear. I think there's stockfelf. It doesn't mean
36:03
Speaker 8: that it won't ultimately be decided in Bear's favor, but
36:06
Speaker 8: it didn't go as many people work predicting it would.
36:10
Speaker 1: Could the decision here affect the medical device, cosmetic and
36:14
Speaker 1: food industries that are governed by laws similar to the
36:17
Speaker 1: one at the center of the Beyer case.
36:20
Speaker 8: You know, it's hard to say without seeing how broadly
36:23
Speaker 8: or how narrowly the Supreme Court decision is written. Traditionally,
36:27
Speaker 8: the Supreme Court has only decided what it has to decide,
36:31
Speaker 8: and you know there's this question of okay, well, if
36:33
Speaker 8: they decide this about the pesticide Act, What does it
36:36
Speaker 8: say about the Food Drug Cosmetic Act, et cetera. Certainly
36:39
Speaker 8: it would be potentially persuasive in other areas, but again,
36:44
Speaker 8: depending on how broadly or how narrowly written it is,
36:47
Speaker 8: it certainly doesn't carry the day in other acts.
36:51
Speaker 1: Well, it's going to be very interesting to see if
36:54
Speaker 1: the decision cuts across ideological lines as well. Thanks so much, Beth.
36:59
Speaker 1: That's for us, or Elizabeth Birch of the University of
37:02
Speaker 1: Georgia Law School. And that's it for this edition of
37:05
Speaker 1: The Bloomberg Law Show. Remember you can always get the
37:07
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