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More Tariffs & Comey Asks for Dismissal of Charges · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:09
Speaker 1: This time around, it took only hours after President Trump's
0:13
Speaker 1: latest global tariffs took effect last Friday before a legal
0:17
Speaker 1: challenge was mounted against them. Small businesses filed a pair
0:22
Speaker 1: of lawsuits in the US Court of International Trade accusing
0:26
Speaker 1: Trump of unlawfully using Section three oh one of the
0:30
Speaker 1: Trade Act of nineteen seventy four to the detriment of
0:34
Speaker 1: American businesses and consumers. California based watchmaker Asher Rapkin is
0:40
Speaker 1: one of the plaintiffs.
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Speaker 2: Congresst's tariffs, not one person alone, and my company, like
0:45
Speaker 2: so many others, are bearing the financial burden of this.
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Speaker 1: The duties are set at a rate between ten percent
0:52
Speaker 1: and twelve point five percent and apply to imports from
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Speaker 1: around sixty economies that the US accused of failing to
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Speaker 1: enforce bands on foreign goods made with forced labor and
1:05
Speaker 1: therefore enjoying an unfair competitive advantage. My guest is an
1:10
Speaker 1: expert in trade law. Timothy Bright built a partner Wileye Rhyn.
1:16
Speaker 1: Tim start by telling us about the administration's latest global
1:21
Speaker 1: tariffs relating to forced labor.
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Speaker 3: This is a very broad news set of tariffs announced
1:29
Speaker 3: last week, the broadest since the reciprocal tariffs announced in
1:34
Speaker 3: the Rose Garden under the International Emergency Economic Powers Act,
1:39
Speaker 3: which was later struck down by the Supreme Court. So
1:43
Speaker 3: these are new tariffs relating to forced labor on more
1:47
Speaker 3: than sixty economies or sixty trading partners. These tariffs range
1:52
Speaker 3: from ten percent to twelve and a half percent. They
1:57
Speaker 3: took effect on July twenty four, which was coincidentally or
2:02
Speaker 3: not the same day that the prior ten percent tariffs
2:06
Speaker 3: were set to expire. And these tariffs are to address
2:10
Speaker 3: forced labor and supply chains, as well as whether or
2:13
Speaker 3: not countries have forced labor laws on their books and
2:18
Speaker 3: enforce them effectively. And I'm sure we all agree that
2:21
Speaker 3: forced labor is a serious issue. No one wants to
2:24
Speaker 3: have a product in their home or business that's made
2:27
Speaker 3: using forced labor. But the question is not just about
2:30
Speaker 3: is forced labor used, but also do these countries have
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Speaker 3: laws and do they enforce them. I'll also say there
2:36
Speaker 3: are lots of exceptions and exclusions to these tariffs that
2:40
Speaker 3: were announced last week. Some are products specific, and also
2:44
Speaker 3: if there are other tariffs involved, there may be exclusions
2:48
Speaker 3: from these ten to twelve and a half percent tariffs.
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Speaker 1: Is this just, you know, find a reason to impose
2:54
Speaker 1: new tariffs because the report from the US Trade Representative
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Speaker 1: doesn't say whether specific nations are actually importing goods made
3:05
Speaker 1: with forced labor or whether products are being made in
3:09
Speaker 1: those countries using forced labor. I mean, is this just
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Speaker 1: a made up reason to impose new tariffs?
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Speaker 3: Well, that's what opponents are alleging, that this is not
3:19
Speaker 3: just a coincidence that the new tariffs were announced to
3:22
Speaker 3: replace the old tariffs that expired, and that these are
3:25
Speaker 3: just a pretext. But that being said, the fact that
3:29
Speaker 3: countries are starting to take greater action against forced labor
3:33
Speaker 3: means that there is a reason to take action and
3:37
Speaker 3: that it remains an important issue and one where the
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Speaker 3: United States has stronger laws than many of our trading partners.
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Speaker 3: We have the Weager Force Labor Prevention Act, which has
3:49
Speaker 3: caused seizure of hundreds of millions of dollars worth of
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Speaker 3: goods at the border that are suspected to use force labor.
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Speaker 3: So it is a real issue. But at the same
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Speaker 3: time time that the timing is perhaps not just a
4:03
Speaker 3: coincidence that the new rates took effect on the same
4:07
Speaker 3: day that the old rates expired.
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Speaker 1: So there's already been a court challenge. Tell us about
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Speaker 1: the court challenge.
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Speaker 3: So some of the plaintiffs that challenged earlier Trump tariffs
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Speaker 3: have again filed lawsuit at the Court of International Trade.
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Speaker 3: And these plaintiffs have alleged that USTR's forced labor investigation
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Speaker 3: was designed to impose a predetermined tariff policy. And they
4:35
Speaker 3: said in fact that the rationale of addressing forced labor
4:39
Speaker 3: is just a pretext for tariffs. So there has already
4:43
Speaker 3: been a challenge. The Court of International Trade will hear it.
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Speaker 3: That being said, courts to date have largely upheld prior
4:52
Speaker 3: administration's use of Section three oh one, including when the
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Speaker 3: first Trump administration and imposed tariffs on hundreds of billions
5:03
Speaker 3: of dollars worth of goods coming from China, So the
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Speaker 3: courts have largely been supportive of the president's use of
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Speaker 3: this law. That being said, this is a very sweeping
5:15
Speaker 3: action and it remains to be seen if there is
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Speaker 3: enough legal support in these sixty different investigations to allow
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Speaker 3: these tariffs to stand in court. I'll also note that
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Speaker 3: the administration trying to take this action in a way
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Speaker 3: so that each of the sixty investigations stands separately, so
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Speaker 3: that an appeal would only affect individual country tariffs rather
5:40
Speaker 3: than the entire sixty countries structure that was announced last week.
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Speaker 1: Yeah, I was going to ask whether the court will
5:48
Speaker 1: examine the justification for the tariffs on each of the countries.
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Speaker 3: That's what the administration is trying to encourage, but it's
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Speaker 3: not clear yet. And I think the plaintiffs are challenging
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Speaker 3: the whole architecture, not just individual country findings, but the
6:06
Speaker 3: whole fact that this was not really about forced labor.
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Speaker 3: In their view, it was about replacing the other tariffs
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Speaker 3: that were struck down by the Supreme Court or that
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Speaker 3: expired after their ninety day period ran its course.
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Speaker 1: And the businesses are represented by the Liberty Justice Center,
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Speaker 1: and that was the group that challenged Trump's earlier global tariffs.
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Speaker 3: That's right, The Liberty Justice Center is the group that
6:36
Speaker 3: filed these actions. They filed on behalf of a couple
6:40
Speaker 3: of small businesses, and they've structured this as a potential
6:44
Speaker 3: class action so that many other plaintiffs can potentially join
6:49
Speaker 3: to strengthen the suit against the Trump administration.
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Speaker 1: So let's talk about the next round of Section three
6:56
Speaker 1: oh one tariffs. Where does that stand?
7:00
Speaker 3: So the next and potentially bigger set of tariffs to
7:06
Speaker 3: come is also under section three h one of the
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Speaker 3: Trade laws. So again this challenges unreasonable practices of foreign
7:16
Speaker 3: countries that burden and restrict US commerce. And these investigations
7:21
Speaker 3: relate to structural overcapacity. So where do countries maintain massive
7:29
Speaker 3: amounts of subsidized capacity that ends up harming US industries
7:35
Speaker 3: because that excess capacity gets sent here and negatively affects
7:42
Speaker 3: US companies and industries that are trying to compete. So
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Speaker 3: this investigation involves sixteen countries. China, of course, is the
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Speaker 3: biggest and is probably the biggest problem as it relates
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Speaker 3: to structural overcapacity. Many of my clients have seen over
7:59
Speaker 3: the years, whether it's steel, aluminum, solar wood products, that
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Speaker 3: China builds massive amounts of state subsidized capacity that that
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Speaker 3: results in dumping, and that access product gets sent to
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Speaker 3: the US market, which is large and relatively open and
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Speaker 3: attractively priced. So these investigations are less predictable, and they've
8:25
Speaker 3: been going on in parallel with the forced labor investigations.
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Speaker 3: But this will be a very important outcome and many
8:32
Speaker 3: businesses and industries are watching this carefully to see what
8:37
Speaker 3: USTR does. One key question is the question of how
8:42
Speaker 3: do you measure over capacity. Some industries, like steel, have
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Speaker 3: measures in place to gauge, while China has much more
8:53
Speaker 3: steel capacity than it needs and sends all of its
8:56
Speaker 3: access here. Other industries, it's less clear. Even though there
9:00
Speaker 3: is over capacity, how you measure it and how will
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Speaker 3: the US Trade representative gather all that information for a
9:08
Speaker 3: country as a whole.
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Speaker 1: Now Canada is getting special treatment. The administration has announced
9:15
Speaker 1: plans to impose fifty percent tariffs on a range of
9:19
Speaker 1: Canadian goods using a century old law, the Smooth Haley
9:25
Speaker 1: ter eff Act.
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Speaker 3: Yes. Yes, so the administration threatened action or announced action
9:31
Speaker 3: thirty days in advance under section three thirty eight of
9:35
Speaker 3: the Trade Laws. As you mentioned, this is part of
9:38
Speaker 3: the Smooth Holey Tariff Act, which was highlighted in everyone's
9:43
Speaker 3: favorite movie Ferris Bueller's Day Off. Yes, a provision that
9:47
Speaker 3: has almost never been used before, and I think not
9:51
Speaker 3: in the last forty or fifty years. And there are
9:55
Speaker 3: three types of a wedged discrimination against US products by
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Speaker 3: Canada relating to motor vehicles, dairy products, and alcoholic beverages,
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Speaker 3: So for example, it's fairly well known that Canadian liquor
10:13
Speaker 3: stores are not carrying US alcoholic beverages. And similarly, there
10:19
Speaker 3: have been long standing disputes with respect to Canada and
10:22
Speaker 3: dairy products. So those are the alleged discrimination by the
10:26
Speaker 3: Trump administration. The tariffs that are announced that would take
10:30
Speaker 3: effect in a month would be fifty percent tariffs, affecting
10:34
Speaker 3: about twenty billion dollars in trade. Again, there would be
10:39
Speaker 3: some carve outs and some exclusions, for example, on products
10:43
Speaker 3: already subject to national security tariffs. And I think it's
10:47
Speaker 3: clear that this announcement is in part to build leverage
10:53
Speaker 3: to use against Canada in the ongoing USMCA negotiations to
11:00
Speaker 3: try and shure up that trade agreement. The Trump administration,
11:03
Speaker 3: which of course negotiated USMCA in the first place and
11:08
Speaker 3: said a number of years ago that it was the
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Speaker 3: best trade deal ever, now has major concerns and has
11:14
Speaker 3: threatened to not renew the agreement, and negotiations are ongoing there.
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Speaker 3: So we'll monitor to see if these tariffs actually go
11:23
Speaker 3: into effect in thirty days or whether there can be
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Speaker 3: some sort of resolution. I will point out that this
11:30
Speaker 3: is a real problem for a number of US Canada
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Speaker 3: supply chains. So these tariffs, if they do take a fact,
11:37
Speaker 3: could end up harming some US companies in industries that
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Speaker 3: the Trump administration is trying to help.
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Speaker 1: Jim, you think that the threat of Canadian tariffs is
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Speaker 1: a ploy for negotiations? Is there any other reason why
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Speaker 1: Trump is specifically singling out Canada for special treatment, our
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Speaker 1: neighbor to the north and longtime ally.
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Speaker 3: Well, it's a great question why President Trump has chosen
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Speaker 3: to focus on allies rather than to focus on China
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Speaker 3: and China's growing influence in the world. But for whatever reason,
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Speaker 3: Canada has been a particular target. And even in the
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Speaker 3: USMCA negotiations, United States and Mexico have had better and
12:30
Speaker 3: more productive discussions, and unfortunately the same has not been
12:34
Speaker 3: the case with US and Canada. So I can't explain
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Speaker 3: why Canada is being singled out here. It is a
12:41
Speaker 3: serious issue when you threaten tariffs of this nature on
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Speaker 3: not only a neighbor to the north, but obviously a
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Speaker 3: longstanding ally. So we'll just have to see how this
12:52
Speaker 3: plays out, and hopefully it won't come to the point
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Speaker 3: where these tariffs are actually imposed.
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Speaker 1: Would tariffs on Canada violate the US Mexico Canada Agreement.
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Speaker 3: Canada would say yes that those tariffs would not be
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Speaker 3: justified and would be a violation of USMCA. So again,
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Speaker 3: we'll have to monitor whether or not these take place
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Speaker 3: and go into a fact or if some sort of
13:17
Speaker 3: negotiation can resolve enough issues that this tariff threat can
13:20
Speaker 3: be removed.
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Speaker 1: Stay with me, tim coming up next, will there be
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Speaker 1: tariffs on generic drugs? I'm June Grosso and you're listening
13:28
Speaker 1: to Bloomberg. From the start of his second term, President
13:35
Speaker 1: Donald Trump has made clear he'll put tariffs at the
13:38
Speaker 1: center of US economic policy. I've been talking to trade
13:42
Speaker 1: attorney Timothy Brightbill of Wileie Rhine. There are so many
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Speaker 1: tariffs and so many possible tariffs. So let's go to
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Speaker 1: tariff announcements on Brazil and generic drugs. Where does that stand?
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Speaker 3: Yes? So last week was another chaotic week in the
14:00
Speaker 3: end of tariffs and trades. So in addition to the
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Speaker 3: forced labor tariffs on sixty economies, we had the conclusion
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Speaker 3: of another investigation that was focused only on Brazil and
14:11
Speaker 3: that resulted in twenty five percent tariffs that were put
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Speaker 3: in place last week again under Section three HO one.
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Speaker 3: These were designed to address several unfair Brazilian trade practices,
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Speaker 3: according to the administration, including discriminatory digital trade rules, content
14:31
Speaker 3: removal orders on US tech platforms, barriers in the ethanol market,
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Speaker 3: deforestation concerns, sort of a variety of unfair trade practices
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Speaker 3: from Brazil. So twenty five percent tariffs have been enacted,
14:46
Speaker 3: but again there have been major exceptions for consumer goods
14:51
Speaker 3: like coffee and orange juice, as well as major Brazilian
14:55
Speaker 3: industries including aircraft and airplane parts. So I think there's
15:02
Speaker 3: a balancing going on here with the Trump administration trying
15:05
Speaker 3: to address unfair trade practices in Brazil and other countries,
15:10
Speaker 3: but also very aware of affordability issues and not wanting
15:16
Speaker 3: to cause problems for consumers who are buying consumer goods
15:20
Speaker 3: or in grocery stores and so forth. So that investigation
15:24
Speaker 3: wrapped up last week, and then there was an interesting
15:27
Speaker 3: tariff threat. There has been an ongoing investigation of generic drugs,
15:33
Speaker 3: and President Trump suggested that there would be tariffs imposed
15:38
Speaker 3: of one hundred percent in one year on imports of
15:43
Speaker 3: generic drugs, but that that would leave time for generic
15:46
Speaker 3: drug manufacturers to build manufacturing here in the United States. Now,
15:52
Speaker 3: that was just a social media post by the President.
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Speaker 3: To my knowledge, there hasn't been any follow up yet
15:59
Speaker 3: or any White House announcements of details of how that
16:02
Speaker 3: would work. But another sector to monitor because of concerns
16:07
Speaker 3: that so many generic drugs are not made here in
16:10
Speaker 3: the United States.
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Speaker 1: Well, it's Congress doing anything about the tariffs.
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Speaker 3: Congress is very concerned, and I think it's fair to
16:17
Speaker 3: say there are bipartisan concerns. There have been a variety
16:22
Speaker 3: of legislative proposals, not that these will pass this year,
16:27
Speaker 3: but to sort of stake out ground in advance of
16:29
Speaker 3: the midterm elections and ultimately the presidential elections. One significant
16:34
Speaker 3: new legislative proposal is from Senator Ron Wyden of Oregon
16:40
Speaker 3: that carries particular weight given his role as the ranking
16:45
Speaker 3: member of the Senate Finance Committee, which deals with all
16:48
Speaker 3: trade related legislation. So he has introduced something called the
16:51
Speaker 3: Congressional Trade Powers Reform Act. This would require the President
16:55
Speaker 3: to submit to Congress some of the proposed new tariffs,
17:00
Speaker 3: for example, national security tariffs under Section two thirty two
17:04
Speaker 3: or any new actions under Section three oh one, and
17:09
Speaker 3: it would also repeal some of these very old trade authorities,
17:14
Speaker 3: such as Section one twenty two and Section three thirty eight.
17:18
Speaker 3: So for laws that have been on the books for
17:20
Speaker 3: fifty years or more but have never really been used,
17:23
Speaker 3: this legislation would simply say no, the president doesn't have
17:27
Speaker 3: that authority anymore.
17:28
Speaker 1: Congress has that Auford just broadly. Trump treats tariffs as
17:33
Speaker 1: the be all and end all of economic policy. But
17:38
Speaker 1: don't the tariffs worsen the concerns about affordability? The Yale
17:42
Speaker 1: Budget Lab estimates that Trump's tariffs will increase costs for
17:46
Speaker 1: the average US household by one one hundred dollars each year.
17:51
Speaker 1: I mean, the US has lost seventy five thousand factory
17:55
Speaker 1: jobs and he says it will boost US manufacturing. And
17:59
Speaker 1: the tariffs didn't narrow the US trade deficit. It hit
18:03
Speaker 1: record highs in twenty twenty five. I know he likes
18:05
Speaker 1: to use them as a cudgel against other countries, but
18:09
Speaker 1: for Americans, what are the benefits?
18:12
Speaker 3: Sure? Well, this is the real question. And I do
18:15
Speaker 3: think from my experience in more than twenty five years
18:18
Speaker 3: as a trade lawyer, that there are ways to use
18:21
Speaker 3: tariffs strategically to strengthen US industries and companies that have
18:29
Speaker 3: been harmed by unfair trade. So there is a way
18:32
Speaker 3: to do it. But the real question is what is
18:36
Speaker 3: the benefit or harm of all of the chaos of
18:39
Speaker 3: the last year and a half. And this comes down
18:43
Speaker 3: to ultimately affordability, which will be the issue of the
18:47
Speaker 3: midterm elections and most likely the presidential elections, and the
18:52
Speaker 3: general public is going to decide to tariffs have any benefit?
18:57
Speaker 3: Do we see any growth in jobs and manifaction industries?
19:01
Speaker 3: In some cases you do. I have clients who have benefited,
19:04
Speaker 3: But at the same time, is it increasing the costs
19:08
Speaker 3: on consumer goods for most Americans? Again, it's going to
19:11
Speaker 3: be the critical issue of the election, and I think
19:15
Speaker 3: that's why the administration, even as it's announcing these things,
19:19
Speaker 3: is trying to do them in a way that causes
19:22
Speaker 3: as little harm as possible.
19:24
Speaker 1: How are your clients dealing with the continued threats of
19:28
Speaker 1: more and more tariffs and the uncertainty. Are they taking
19:32
Speaker 1: any special steps?
19:34
Speaker 3: Well, it's a real challenge for companies and industries that
19:37
Speaker 3: are trying to run businesses. So again, some of them
19:40
Speaker 3: are supportive of some of these terrif actions, particularly if
19:44
Speaker 3: they face unfair trade from China and Chinese owned companies,
19:49
Speaker 3: perhaps in Vietnam and Malaysia, but others. The chaos and
19:54
Speaker 3: the unpredictability make it very difficult to invest, to hire workers,
20:00
Speaker 3: to build global supply chains, and these challenges are not
20:04
Speaker 3: going away. They don't seem to be calming down. If
20:07
Speaker 3: last week was any indication, the chaos and the unpredictability
20:11
Speaker 3: are unfortunately going to continue in that Again, it does
20:15
Speaker 3: help some businesses in some industries, but it's very harmful
20:19
Speaker 3: to many others.
20:20
Speaker 1: Is there anything else we should be watching for?
20:22
Speaker 3: Tim There are other things to keep an eye on.
20:25
Speaker 3: We have additional potential tariffs in the near term, so
20:31
Speaker 3: don't forget about the various national security tariff investigations under
20:36
Speaker 3: Section two thirty two of the Trade Laws, many of
20:39
Speaker 3: which investigations have been going on for almost a year.
20:43
Speaker 3: So one action that we're monitoring closely relates to polysilicon
20:50
Speaker 3: and solar products such as solar cells and solar panels.
20:55
Speaker 3: That investigation should be coming to a close within the
20:58
Speaker 3: next few weeks. It will be important to see how
21:01
Speaker 3: the administration addresses this problem. This is one example where
21:05
Speaker 3: we really have seen Chinese over capacity spread around the
21:10
Speaker 3: world to countries like Vietnam and Malaysia and now even Ethiopia,
21:17
Speaker 3: laws Indonesia and so forth. So we'll be monitoring that
21:21
Speaker 3: in the next few weeks, and there are other investigations
21:23
Speaker 3: going on. So we expect this to continue to be
21:27
Speaker 3: a big issue for this president and this administration in
21:31
Speaker 3: the weeks and months to come.
21:33
Speaker 1: So we'll be talking again and again, Tim, thanks so much.
21:37
Speaker 1: That's Timothy Bright Bill, a partner at Wilie Ryan. Coming
21:41
Speaker 1: up next on The Bloomberg Lawn Show. Former FBI director
21:45
Speaker 1: James Comy has been charged for threatening President Donald Trump
21:50
Speaker 1: in a social media post which showed seashelles spelling out
21:53
Speaker 1: the numbers eighty six forty seven. Comy is asking a
21:57
Speaker 1: federal judge to dismiss the indict saying it was not
22:01
Speaker 1: a call to violence against Trump, but rather protected political speech.
22:06
Speaker 3: Welderbach, this time about a picture of seashells on a
22:11
Speaker 3: North Carolina beach a year ago, and this won't be
22:15
Speaker 3: the end of it.
22:16
Speaker 1: The Trump administration indicted former FBI director James Comy for
22:21
Speaker 1: the second time in April, this time charging him with
22:25
Speaker 1: threatening President Donald Trump in a social media post which
22:29
Speaker 1: showed seashells spelling out the number eighty six forty seven,
22:34
Speaker 1: eighty six.
22:34
Speaker 2: You know it's a mob term for kill them.
22:38
Speaker 1: You know, you ever see the movies eighty six the
22:41
Speaker 1: mobster says to one of his wonderful associates eighty six
22:45
Speaker 1: that means kill him. In fact, the term eighty six
22:49
Speaker 1: is widely understood to be a restaurant term meaning to
22:53
Speaker 1: be out of something. And Comy's lawyers argue that dictionaries, context, precedent,
22:59
Speaker 1: and common sense show it was not a call to
23:02
Speaker 1: violence against Trump, but protected political speech. They're asking a
23:07
Speaker 1: judge to dismiss the charges. My guest is first Amendment
23:11
Speaker 1: expert Timothy Zick, a professor at William and Mary Law School.
23:15
Speaker 1: Tim in his motion to dismiss Comy, makes several arguments,
23:20
Speaker 1: sometimes alternative arguments. So start by telling us what a
23:24
Speaker 1: true threat is and Comy's claim that the indictment doesn't
23:29
Speaker 1: allege a true threat.
23:31
Speaker 2: So the Supreme Court has defined a true threat as
23:34
Speaker 2: a serious expression of an intent to commit an unlawful
23:38
Speaker 2: act of violence against another person. In an addition, has
23:42
Speaker 2: said that a reasonable objective observer would have to view
23:47
Speaker 2: what was said or communicated as a threat of violence.
23:51
Speaker 2: So one of the Prince of arguments, he is it
23:53
Speaker 2: just doesn't meet the definition. The seashells arranged by somebody
23:56
Speaker 2: else posted by Comy to social media does not constitute
24:01
Speaker 2: expression of a serious intent to do bodily injury to
24:04
Speaker 2: the president.
24:05
Speaker 1: I mean, the indictment is so threadbare. There's no reference
24:08
Speaker 1: to what evidence they presented to a grand jury to
24:11
Speaker 1: make them return a true bill. Here they said that
24:15
Speaker 1: posting a photograph which depicted seashells arranged in a pattern
24:19
Speaker 1: making out eighty six forty seven, which a reasonable recipient
24:23
Speaker 1: who's familiar with the circumstances would interpret as a serious
24:27
Speaker 1: expression of an intent to do harm to President Trump.
24:31
Speaker 1: Could it be that they didn't present anything else to
24:33
Speaker 1: the grand jury.
24:34
Speaker 2: It's possible that that's all they presented to the grand jury.
24:38
Speaker 2: You probably know there been some shenanigans with federal prosecutors
24:42
Speaker 2: and grand juries and other cases, including I think one
24:45
Speaker 2: against Komy, another one against Comy. But any event of
24:48
Speaker 2: the administration has done this in countless cases with regard to,
24:52
Speaker 2: for example, protesters anti ice protesters who've been charged. There's
24:57
Speaker 2: always a promise that there's more to come, there's more evidence,
25:00
Speaker 2: and then courts offer the administration's attorneys, the DJA attorneys,
25:04
Speaker 2: an opportunity to provide it, and they never do. So
25:07
Speaker 2: I suspect there's not much more, if anymore to this
25:11
Speaker 2: case than the seashells, the social media posts, and of
25:14
Speaker 2: course you know the prior relationship between these two men,
25:18
Speaker 2: but that really is a function of sort of political
25:21
Speaker 2: difference or you know, Comey's actions as FBI director, and
25:26
Speaker 2: that's all public record. So I just don't know what
25:29
Speaker 2: else there could be. Context is important, that's true, but
25:33
Speaker 2: it doesn't, you know, strike me that there's some smoking
25:36
Speaker 2: gun here that shows that this was a serious expression
25:42
Speaker 2: of an intent to harm the president. So, you know,
25:46
Speaker 2: it seems to me, even by the Administration's you know,
25:49
Speaker 2: very low bar standards in these sorts of prosecutions, an
25:53
Speaker 2: extraordinarily weak case. I mean, you have precedents from the
25:56
Speaker 2: Supreme Court that have turned away indictments and arrests for
26:02
Speaker 2: statements that are far more a sort of violence intentive.
26:07
Speaker 2: Then say, you know, the seashell So in wats versus
26:10
Speaker 2: the United States during the Vietnam era, some young man says, well,
26:13
Speaker 2: if they ever put a gun in my hand. The
26:15
Speaker 2: first person I'm going to point it at is Lyndon
26:19
Speaker 2: Bates Johnson. And in another case, a worker in an office,
26:23
Speaker 2: a public employee says to a coworker, look, if they
26:26
Speaker 2: ever go after Reagan again, I hope they get them. Now.
26:29
Speaker 2: That's not nice to say, but it is clearly protected
26:32
Speaker 2: political hyperbole under the Supreme Courts presidence, and I would
26:35
Speaker 2: say under the Fourth Circuits precedence, which is where this
26:38
Speaker 2: case is going to presumably end up if it does
26:41
Speaker 2: get appealed.
26:42
Speaker 1: There are T shirts and hats with the eighty six
26:45
Speaker 1: forty six used during Biden's presidency. I mean, does that
26:50
Speaker 1: come up anywhere?
26:52
Speaker 2: I think that's part of the context, right, if you
26:54
Speaker 2: think about the words that are used, or in this case,
26:56
Speaker 2: the numbers that are used, as the defense lawyer point out, look,
27:01
Speaker 2: they were used during Biden's presidency. Eighty six forty seven,
27:04
Speaker 2: in fact, is all over T shirts and political billboards
27:09
Speaker 2: and all the rest. And in fact, there's a recent
27:11
Speaker 2: case out of the District of Columbia where there was
27:14
Speaker 2: a sign up using those very same numbers, and a
27:17
Speaker 2: court threw the case out on the grounds that it
27:20
Speaker 2: could not possibly be interpreted as a true threat. So
27:25
Speaker 2: I think the sort of stars are all aligned in
27:27
Speaker 2: the same direction here, that this is a form of
27:30
Speaker 2: if it's even that sort of hyperbolic or rhetorical political communication,
27:35
Speaker 2: and nothing more. I think it is important if you
27:38
Speaker 2: look at dictionary definitions and common understandings of what these
27:42
Speaker 2: numbers mean when arranged in that way, that there's very thin,
27:46
Speaker 2: if any evidence that they point to any kind of violence,
27:49
Speaker 2: you know, get rid of or in the case of
27:52
Speaker 2: a restaurant, there's no more of that's eighty six. And
27:55
Speaker 2: so the sort of violent use of that set of
27:58
Speaker 2: numbers is very rare, not reflecting in dictionaries, and the
28:03
Speaker 2: whole thing just reeks of of course, more of the
28:05
Speaker 2: same sort of retribution against the president's political enemies. And
28:09
Speaker 2: he always says the quiet part out loud. He wanted
28:12
Speaker 2: Pam Bondi to arrest Comy for something. There must be something.
28:17
Speaker 2: And they finally found a prosecutor who was willing to
28:20
Speaker 2: with a straight face present this to a grand jury.
28:23
Speaker 2: And I think it's going to be another dismissal and
28:27
Speaker 2: an embarrassment. But here's the thing about the Trump administration.
28:30
Speaker 2: I don't think they're embarrassed. I think the point is
28:33
Speaker 2: to put Tomy through the trouble of being charged, arrested,
28:37
Speaker 2: having to plead in front of a judge, you know,
28:40
Speaker 2: And that all happened to Trump, so it should happen
28:43
Speaker 2: to all these political enemies, and that's what this is
28:45
Speaker 2: really about.
28:46
Speaker 1: Also, they argue that even if the alternative argument, so
28:50
Speaker 1: even if this could be taken to suggest violence, it
28:54
Speaker 1: would be political hyperbole and not a true threat. So
28:58
Speaker 1: tell us about that argument meant in the context of
29:02
Speaker 1: the Supreme Court affording political speech the highest standard of protection.
29:08
Speaker 2: Yeah, I mean, it's obviously recognized a category of a
29:12
Speaker 2: speech that can be criminalized, called a true threat. But
29:15
Speaker 2: when you define that as a category, if you're the court,
29:19
Speaker 2: you're very careful to make sure the definition does not
29:22
Speaker 2: sweep in political opposition, even when it is sort of
29:26
Speaker 2: couched in violent terms. So, even assuming you could read
29:29
Speaker 2: violence into eighty six forty seven, as I said in
29:33
Speaker 2: Watts and in other cases, the Court has said, well,
29:35
Speaker 2: you have to be very careful not to allow the
29:39
Speaker 2: government to criminalize opposition to political power, in this case
29:44
Speaker 2: the president of the United States, and in those cases too,
29:46
Speaker 2: and there are other cases of similar ilk right. So
29:49
Speaker 2: there's a civil rights era case where a civil rights
29:52
Speaker 2: leader stands up in front of people he wants to
29:54
Speaker 2: participate in a boycott of white businesses in southern town
29:57
Speaker 2: and he says, look, if you don't come along, there
30:00
Speaker 2: may have to be some discipline and next may have
30:03
Speaker 2: to be broken. And that was a civil case. But
30:05
Speaker 2: the same question arose, well, is that a threat? Is
30:08
Speaker 2: that a threat of violence? No, that's the kind of
30:10
Speaker 2: strong political rhetoric the First Amendment protects. So even if,
30:15
Speaker 2: as the defense points out, even if you could ring
30:18
Speaker 2: some kind of violent imagery out of eighty six forty seven,
30:23
Speaker 2: that is still protected speech. It is not a true threat.
30:27
Speaker 2: And that is the sort of cost, if one wants
30:30
Speaker 2: to look at it that way, of having such a
30:32
Speaker 2: robust free speech right in the United States. You can,
30:36
Speaker 2: and speakers often do make these sorts of communications, even
30:40
Speaker 2: when they implicate, you know, sort of violence.
30:42
Speaker 1: Also, you know, if this actually went to trial, the
30:46
Speaker 1: prosecution would have to prove that Comy knowingly and willfully
30:51
Speaker 1: made the threat. I mean Comy deleted the post and
30:55
Speaker 1: said that he didn't realize that some people associate the
31:00
Speaker 1: those numbers with violence. So for the prosecution to prove
31:04
Speaker 1: he had intent seems like it would be a huge hurdle.
31:08
Speaker 2: Yeah, that's not something you can resolve on the emotion
31:10
Speaker 2: to dismiss, But the sort of mental state of the
31:13
Speaker 2: speakers would be You're absolutely right critical if this thing
31:16
Speaker 2: were to go to trial, whether or not Comy would testify,
31:20
Speaker 2: I think is an interesting question if it goes that far.
31:23
Speaker 2: But the statutes that he's been prosecuted under have mental
31:25
Speaker 2: state requirements, as does the First Amendment. The First Amendment,
31:29
Speaker 2: the court said in the case called counter mem versus Colorado,
31:32
Speaker 2: requires that you show that the speaker acted recklessly a
31:36
Speaker 2: former sort of subjective intent. But you knew there was
31:39
Speaker 2: a danger here that someone would view this as a
31:42
Speaker 2: threat of violence, and you spoke anyway. But I just
31:45
Speaker 2: don't see how you get to you know, if Watts's
31:48
Speaker 2: speech is protected and other statements about you know, actually
31:52
Speaker 2: killing the president more directly or protected, how do you
31:55
Speaker 2: get there with something like this and then Watts, for example,
31:58
Speaker 2: the Vietnam Aery case. Part of the reason the court
32:01
Speaker 2: said it's not a threat is it's so highly conditional.
32:03
Speaker 2: Here's this young man, I think he was eighteen years old.
32:05
Speaker 2: He's at a political rally, he makes this statement and
32:08
Speaker 2: people laugh. But also there's really just no prospects that
32:11
Speaker 2: violence would be visited on President Johnson. So too here.
32:16
Speaker 1: We've heard violent rhetoric from President Trump repeatedly over the years.
32:22
Speaker 1: But does that have any bearing at all on this case.
32:25
Speaker 2: I don't think it does. You know, the question is
32:28
Speaker 2: whether in this case the speaker Comy can be convicted
32:32
Speaker 2: of the offenses he's been charged with. But I do
32:35
Speaker 2: think in terms of you know, whether you want to
32:37
Speaker 2: call it a slippery slope argument or just a fairness argument,
32:41
Speaker 2: there's a lot of violent political rhetoric in the United States,
32:44
Speaker 2: and again you could see that as the cost of
32:46
Speaker 2: having this robust First Amendment. But the president himself has
32:51
Speaker 2: engaged in a sort of speech. There are some on
32:53
Speaker 2: the other side of the political aisle who used eighty six,
32:57
Speaker 2: and they weren't prosecuted. Of course, god Blanche has said
33:01
Speaker 2: the acting Attorney General, Look, we're not going to go
33:03
Speaker 2: after everyone, then why are you going after Comy?
33:06
Speaker 3: Right?
33:06
Speaker 2: So I think it does matter that a lot of
33:08
Speaker 2: political rhetoric circulates. It's long understood to be protected by
33:13
Speaker 2: the First Amendment, and their questions as to why Comy's
33:17
Speaker 2: being singled out. That's going to go, I think to
33:20
Speaker 2: another motion which is going to be filed to dismiss
33:22
Speaker 2: the case on the grounds of vindictive and selective prosecution,
33:26
Speaker 2: and those raise different issues. That's not about the content
33:29
Speaker 2: of his speech, that's about how and why he was
33:32
Speaker 2: selected among all those who use similar language to be
33:36
Speaker 2: criminally charged.
33:37
Speaker 1: What standard will the judge use in deciding whether to
33:41
Speaker 1: throw the case out.
33:42
Speaker 2: Ordinarily those are hard cases to get thrown out on
33:45
Speaker 2: a motion to dismiss, because, as you said, context matters.
33:49
Speaker 2: Is there more to it? Do we need more fact finding?
33:52
Speaker 2: And the intent or the mental state of the defendant
33:55
Speaker 2: typically matters, and that's usually not something you can resolve
33:58
Speaker 2: on motion papers dismiss. This may again be that rare
34:02
Speaker 2: case where you can in fact throw it out, and
34:05
Speaker 2: the defendants make the point that even trying him, putting
34:08
Speaker 2: him through these paces is its own sanction for what's
34:12
Speaker 2: clearly protected speech. My suspicion, my expectation, is that the
34:16
Speaker 2: administration is going to say, or the Department's going to say, look,
34:19
Speaker 2: we need factual development here, and discovery should take place,
34:22
Speaker 2: and you shouldn't throw this out, you know, we promise
34:24
Speaker 2: there's more to this, and they keep doing that. Now,
34:27
Speaker 2: whether a judge has patience for that is another matter.
34:31
Speaker 2: And then of course if it's dismissed, it'll immediately be
34:34
Speaker 2: appealed and all of that. Right, So it is rare
34:38
Speaker 2: to succeed on these sorts of motions. But one of
34:41
Speaker 2: the things that makes it more plausible is just sort
34:44
Speaker 2: of the extraneous statements of the President and the administration
34:48
Speaker 2: and the Attorney General about Cami in particular, and you know,
34:53
Speaker 2: Trump sort of telling his attorney general pursue these people
34:57
Speaker 2: for something. Now, a court might not say, you know,
35:00
Speaker 2: that's evidence in the case, but it just has to
35:03
Speaker 2: have some impact on how you view cases like this.
35:06
Speaker 2: I would think.
35:07
Speaker 1: Also, the FBI has already investigated this, and it took
35:13
Speaker 1: what close to a year for them to come up
35:15
Speaker 1: with this indictment, So how much more information is there
35:20
Speaker 1: out there to discover?
35:21
Speaker 2: You know, ordinarily would have a period of discovery, And
35:25
Speaker 2: again I'd be surprised if there's anything more to this.
35:29
Speaker 2: You know, they did I think Seese, Comey's devices, his
35:32
Speaker 2: phone and so forth. So it's you know possible he
35:36
Speaker 2: made other derogatory statements about Trump, but joined the multi
35:39
Speaker 2: million who've done that, that's not evidence of an intentive
35:42
Speaker 2: threaten to murder him. So I'd just be very surprised
35:46
Speaker 2: that this didn't just fizzle out like so many cases
35:49
Speaker 2: have where they eventually dropped the charges. There's a recent one,
35:52
Speaker 2: a sort of union leader out in California during an
35:55
Speaker 2: antiis protest. He was arrested for allegedly this is a
35:59
Speaker 2: common charge, interfering with ICE's activities and assaulting an officer. Well,
36:05
Speaker 2: they just dropped it after months and months and months
36:07
Speaker 2: and months. Of course, they now put this man through
36:10
Speaker 2: not just an arrest and a physical assault, but all
36:13
Speaker 2: the other things that come with being charged with a felony.
36:17
Speaker 2: So if the pattern holds, this case will run that course,
36:21
Speaker 2: and you know, again, the Trump administration and the Department
36:24
Speaker 2: of Justice will simply move on to its next target
36:27
Speaker 2: because what Trump wanted will have been done.
36:30
Speaker 1: Comy got charged, and if the charges aren't dismissed at
36:33
Speaker 1: this early stage, Comby will have to go through with
36:37
Speaker 1: a trial that's now scheduled for October. So six months
36:41
Speaker 1: of going through this whole process of being charged, pre
36:46
Speaker 1: trial motions, discovery, and then trial, and you never know
36:50
Speaker 1: what's going to happen at trial, so it's hanging over you.
36:53
Speaker 2: It's entirely plausible, it's happened already that the trial jury
36:57
Speaker 2: there is one will reject the government's case. But as
37:00
Speaker 2: you point out right, there's a lot of process and
37:03
Speaker 2: there's a lot of cost to these things. And Trump
37:06
Speaker 2: has said out loud in the civil context, not the
37:09
Speaker 2: criminal the point is to make them pay, meaning to
37:14
Speaker 2: make them suffer the financial consequences of being sued. He
37:19
Speaker 2: doesn't care if he wins. The punishment is the suit
37:24
Speaker 2: or the investigation. So that is wildly inappropriate, improper, a
37:30
Speaker 2: violation of due process, and in these cases, a violation
37:33
Speaker 2: of the First Amendment.
37:35
Speaker 1: I'm really interested in seeing what the government will come
37:38
Speaker 1: up with in its response papers. It's been great having
37:42
Speaker 1: you on, Tim, Thanks so much. That's Professor Timothy Zick
37:46
Speaker 1: of William and Mary Law School. And that's it for
37:49
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