Latest / Bloomberg Law / Weekend Law: Meta Settles, Trump Outruns Courts & Officer Charged

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Weekend Law: Meta Settles, Trump Outruns Courts & Officer Charged · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.
0:08
Speaker 2: This is a major breakthrough, a milestone moment, a watershed moment,
0:14
Speaker 2: because when it comes to protecting our children's mental health,
0:17
Speaker 2: there is no time to lose.
0:19
Speaker 3: That's California Attorney General Rob Bonta describing the settlement where
0:25
Speaker 3: Mehta will pay up to 18 billion dollars. and put
0:28
Speaker 3: stronger child safety guardrails on its platforms to end a
0:33
Speaker 3: California social media addiction trial and resolve the claims of
0:37
Speaker 3: 48 states that Meta deliberately designed features to hook teenagers.
0:43
Speaker 3: Under the deal, the social media giant will implement a
0:47
Speaker 3: series of design changes for users under 18, including limiting
0:53
Speaker 3: the time they can spend on Instagram and Facebook to
0:56
Speaker 3: two hours a day, blocking the apps from midnight to
1:00
Speaker 3: 6 a.m., and disabling features such as like counts. But
1:05
Speaker 3: this doesn't close the book on social media addiction litigation
1:09
Speaker 3: for Meta. It still faces thousands of similar lawsuits brought
1:13
Speaker 3: by individuals, school districts, and Native American tribes. Joining me
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Speaker 3: is an expert in Internet law, Eric Goldman, a professor
1:22
Speaker 3: at the Santa Clara University School of Law and co-director
1:26
Speaker 3: of the High Tech Law Institute. This is being called
1:30
Speaker 3: a landmark settlement. AG Bonta said they got as much
1:34
Speaker 3: and perhaps more than they could have in litigation. I mean,
1:37
Speaker 3: how do you view it?
1:39
Speaker 4: The settlement amount is a huge, absolute number.
1:42
Speaker 1: There's no doubt that this is a major financial landmark.
1:46
Speaker 1: At the same time, this number is not a number
1:49
Speaker 1: that materially changes Meta's business. I don't want to say
1:53
Speaker 1: it's pocket change for them, but it's a quarter of
1:56
Speaker 1: their 2025 net income. They can afford this. And also,
2:01
Speaker 1: I would point out that Meta was subject to a
2:04
Speaker 1: judgment in New Mexico that ordered cumulatively roughly a billion
2:08
Speaker 1: dollars of damages against Meta. And New Mexico's roughly 0.6%.
2:14
Speaker 4: Of the U.S. population.
2:15
Speaker 1: If you were to multiply that billion-dollar judgment in New
2:19
Speaker 1: Mexico by the 0.6 population, actually the $ 17 billion number
2:24
Speaker 1: looks smaller than we might expect.
2:26
Speaker 3: Bond just said that The money was secondary. What was
2:30
Speaker 3: important was the changes that Meta has agreed to make.
2:34
Speaker 3: Do you think those changes are significant?
2:37
Speaker 1: The changes are important in part because Meta has resisted
2:41
Speaker 1: them for quite some time. And Meta has obviously flipped
2:44
Speaker 1: internally and decided that they could live with these particular changes.
2:48
Speaker 1: So the state AGs were able to accomplish something that
2:53
Speaker 1: regulators around the globe have had difficulty forcing Meta to do,
2:56
Speaker 1: What's less clear is if these changes are in the
3:00
Speaker 1: best interest of the constituents that the state attorneys general
3:05
Speaker 1: seek to serve. We don't know if any of these
3:08
Speaker 1: changes solve the, quote, mental health crisis. We don't know
3:13
Speaker 1: if any of these changes materially benefit any population of users.
3:18
Speaker 1: Simply put, we don't have science to back up that
3:22
Speaker 1: these changes solve any problems. And we also don't know
3:27
Speaker 1: if these changes will cause other users to have new
3:31
Speaker 1: problems because of the restrictions. In other words, the state
3:35
Speaker 1: attorneys general are gambling that these changes are beneficial to
3:40
Speaker 1: users without having the science to back it up. And
3:43
Speaker 1: we'll find out if they're right or wrong. But if
3:45
Speaker 1: they're wrong, then we're going to have a lot of
3:47
Speaker 1: people who actually have been harmed by this agreement.
3:50
Speaker 3: Will you explain how the changes in the platforms are affected?
3:55
Speaker 3: going to work in practice because the effectiveness hinges on
3:59
Speaker 3: knowing how old users actually are.
4:02
Speaker 1: I describe these categories of restrictions as segregate and suppress.
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Speaker 1: The first step is to segregate the user population between
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Speaker 1: adults and minors. And then the second step is to
4:14
Speaker 1: suppress some resources for the minor population. This agreement codifies
4:18
Speaker 1: that approach. In order to do the segregation, Meta has
4:22
Speaker 1: agreed to deploy age authentication on its user base. And
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Speaker 1: the agreement has very detailed specific provisions about how that
4:30
Speaker 1: age authentication is going to work. Among other things, something
4:33
Speaker 1: that really was interesting to me is that the agreement
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Speaker 1: contemplates that age authentication will never be perfect. And it
4:40
Speaker 1: actually provides error rates where Meta can make mistakes and
4:44
Speaker 1: still be in compliance with the agreement. This is really
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Speaker 1: central to the question because it means that there will
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Speaker 1: be some minors who will not be protected by this
4:52
Speaker 1: agreement because of those error rates. And I don't see
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Speaker 1: that as a flaw, but it's actually a big concession
4:58
Speaker 1: by regulators to even admit that that could happen.
5:01
Speaker 3: This deal came in the second week of a jury
5:04
Speaker 3: trial in California that posed enormous risks for Meta. I mean,
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Speaker 3: juries ruled against them in two prior cases, one in
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Speaker 3: New Mexico and one in California. What do you think
5:15
Speaker 3: pushed them to settle?
5:17
Speaker 1: Well, obviously, the settlement has been in the works for
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Speaker 1: many days, if not for weeks or even months, because
5:23
Speaker 1: it's so long and detailed. And it required the agreement
5:27
Speaker 1: of 51 different state AGs. So this agreement didn't just
5:31
Speaker 1: happen because this trial has been going poorly.
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Speaker 4: This conversation is much longer standing than that.
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Speaker 1: But I don't know exactly what caused Meta to flip
5:40
Speaker 1: on this particular issue, but this is a standard practice
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Speaker 1: for Meta that they will push and fight against restrictions
5:48
Speaker 1: until they decided somehow in their interest, and then they're
5:51
Speaker 1: all in.
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Speaker 4: And they're super excited about it.
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Speaker 1: And as the agreement reflects, And they want everyone else
5:56
Speaker 1: on the same program, too. They're like, OK, we've decided.
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Speaker 1: Here's what the industry should do. We'll be the first,
6:02
Speaker 1: but make sure everyone else goes on the program as well.
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Speaker 1: So I don't know what caused Meta to reach that
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Speaker 1: point where they decided enough is enough. But it isn't
6:10
Speaker 1: some new thing. It's something that obviously has been on
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Speaker 1: their minds for a while.
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Speaker 3: The deal includes the appointment of an independent auditor to
6:17
Speaker 3: oversee compliance, someone who can issue their own recommendations and
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Speaker 3: report findings to the states. Do you think that that's
6:26
Speaker 3: sufficient to ensure compliance by Meta? Because I remember some
6:32
Speaker 3: years ago when Meta was still Facebook, it didn't comply
6:36
Speaker 3: with agreements with the FTC over users' data privacy.
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Speaker 1: Yeah, Meta has a history of having independent auditors that
6:46
Speaker 1: have had no real impact on its business. And so
6:50
Speaker 1: I'm guessing Meta thinks it had a little bit of
6:53
Speaker 1: a fast one here. that the state AGs are going
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Speaker 1: to think this independent auditor is going to dictate things
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Speaker 1: to Meta, and I'm guessing Meta is thinking it will
7:00
Speaker 1: dictate to the independent auditor.
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Speaker 3: Eric, so Meta said, the framework will only work if
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Speaker 3: all our peers join us, because teens move fluidly across
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Speaker 3: dozens of apps, we need an industry-wide solution. Is that
7:15
Speaker 3: what this is really about?
7:16
Speaker 4: This is a Meta-specific issue.
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Speaker 1: Meta really, really does not like being obligated to comply
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Speaker 1: with laws that its competitors don't also have to comply with.
7:29
Speaker 1: So Meta is less resistant to legal compliance. It's more
7:34
Speaker 1: willing to accept that the regulators can tell it how
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Speaker 1: to run its business, but.
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Speaker 4: Only if, in Meta's mind, it's a level playing field.
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Speaker 1: So it was absolutely critical to Meta in this case
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Speaker 1: that if it settled, it was going to drag along
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Speaker 1: its competitors, whether they really wanted to be dragged along
7:51
Speaker 1: or not, to the same deal, so that teams can't
7:55
Speaker 1: just check out a meta, go to the competitor down
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Speaker 1: the information superhighway, and get a better deal.
8:01
Speaker 4: There, and meta then is at a competitive disadvantage.
8:04
Speaker 1: And it mattered so much to meta that they did
8:07
Speaker 1: two things of interest. The first is that it agreed
8:11
Speaker 1: to restrict miners' usage of meta even more if other
8:16
Speaker 1: competitors agreed to the same restrictions.
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Speaker 4: So that's a carrot.
8:21
Speaker 1: For the state AGs to go out and get even
8:23
Speaker 1: greater alleged protection for minors if they can get the
8:27
Speaker 1: competitors under that program.
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Speaker 4: The second thing is.
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Speaker 1: That Meta conditioned a large chunk of the payments on the.
8:35
Speaker 4: State AGs going out and getting the competitors under the
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Speaker 4: same program.
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Speaker 1: In other words, essentially, Meta has now deputized the state
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Speaker 1: AGs as its police against its competitors, and is paying
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Speaker 1: them to do its dirty work. So the state AGs
8:52
Speaker 1: might think that this is a win, but Meta is
8:55
Speaker 1: also looking at this as, we got the state AGs
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Speaker 1: to go off and harass our competitors, and we're willing
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Speaker 1: to pay them to do that.
9:03
Speaker 3: And the California AG did say they'll be going after
9:06
Speaker 3: Meta's competitors next.
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Speaker 2: Meta is part of the industry, a major player in
9:11
Speaker 2: the industry, but there's a bigger ecosystem that we will
9:14
Speaker 2: not be satisfied with. until we address all of the
9:16
Speaker 2: problems in the entire industry. So we are going to
9:19
Speaker 2: focus on TikTok. We are going to focus on Snap.
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Speaker 3: So TikTok and Snap and probably YouTube will be pressured
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Speaker 3: to make similar deals.
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Speaker 1: The competitors may not like this deal at all, but
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Speaker 1: now Meta and the state agencies are collaborating together against
9:37
Speaker 1: these other competitors. So I can assure you that YouTube
9:41
Speaker 1: and Snap and TikTok are reading this agreement. At each line,
9:45
Speaker 1: you could just see the anger bar rising in their
9:48
Speaker 1: heads because this is an agreement that's against their interests.
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Speaker 1: They had no say in the agreement, and now Meta
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Speaker 1: is throwing hundreds of millions of dollars at this problem
9:58
Speaker 1: to try to get the state.
10:00
Speaker 4: AGs to bind them.
10:01
Speaker 3: And META is still facing thousands of other lawsuits.
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Speaker 1: This settlement doesn't apply to any of the other pending
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Speaker 1: litigation that's been brought by the school districts, the Native
10:12
Speaker 1: American tribes, and by individual victims, of which there are
10:15
Speaker 1: thousands of individual victims who've.
10:17
Speaker 4: Already sued META.
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Speaker 1: And that's why there's a large overhang of additional legal
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Speaker 1: risk that it still needs to resolve. This settlement doesn't
10:27
Speaker 1: have any bearing on that.
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Speaker 3: Do you have any First Amendment concerns about this settlement?
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Speaker 1: The agreement represents the concession of META of certain editorial
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Speaker 1: decisions that it traditionally had the prerogative to make. And
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Speaker 1: it's interesting and a little uncomfortable that the state attorneys
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Speaker 1: general have bound In a sense, part of the bargain
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Speaker 1: for price was the state AGs getting remedies that might
10:56
Speaker 1: very well have not been available to it in court
10:59
Speaker 1: because of the restrictions on free speech. Essentially, the state
11:04
Speaker 1: AGs are controlling how Meta talks with its users. So
11:08
Speaker 1: there's something disquieting about the idea that Meta and the
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Speaker 1: state AGs have agreed to what are fundamentally restrictions on
11:15
Speaker 1: Meta's freedom to publish, especially when we don't even know
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Speaker 1: if that's constitutionally permitted. One possibility this agreement will look
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Speaker 1: really weird if that question gets answered by the Supreme Court,
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Speaker 1: and the Supreme Court says that states have no power
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Speaker 1: to dictate how online publishers present content to users. And
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Speaker 1: Matt has agreed to that. And it might very well
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Speaker 1: be that that agreement is based on an unconstitutional premise.
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Speaker 3: It's more complicated than it initially seems. Thanks so much, Eric.
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Speaker 3: That's Professor Eric Goldman of Santa Clara University Law School.
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Speaker 3: Coming up next, President Trump keeps racing ahead and the
11:53
Speaker 3: courts can't catch up. I'm June Grosso, and you're listening
11:58
Speaker 3: to Bloomberg.
12:00
Speaker 1: The people that are opposing the ballroom are people that,
12:04
Speaker 1: in my opinion, are very disloyal to our country, very,
12:07
Speaker 1: very disloyal to our country.
12:09
Speaker 4: And I think we're doing very well. We're way ahead
12:11
Speaker 4: of schedule.
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Speaker 3: And that's important because President Trump is racing to construct
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Speaker 3: the 90,000 square foot ballroom with a 250 person crew
12:22
Speaker 3: working 20 hours a day, seven days a week to
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Speaker 3: keep the project ahead of schedule. Speed is essential because
12:30
Speaker 3: Trump is racing against the courts, and so far, he's
12:34
Speaker 3: outrunning them. The project has moved ahead without any input
12:38
Speaker 3: from Congress or the public, and despite two courts ruling
12:42
Speaker 3: that Trump was flouting the law. And Chief Justice John
12:46
Speaker 3: Roberts has given Trump the go-ahead to outrun the Supreme
12:50
Speaker 3: Court as well. He can keep building his ballroom while
12:54
Speaker 3: the justices take more time to consider the issue. This
12:58
Speaker 3: isn't a new scenario for Trump. He's been acting first
13:02
Speaker 3: and then daring the courts to catch up with him
13:05
Speaker 3: since he took office for the second time. Joining me
13:08
Speaker 3: is James Fander, a professor at Northwestern Law School. James,
13:12
Speaker 3: does the chief justice's interim order tell us anything about
13:17
Speaker 3: how the full Supreme Court is going to look at
13:19
Speaker 3: this issue?
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Speaker 5: I don't think we learned much from the order that
13:23
Speaker 5: the chief issued. It seems to me like just a
13:26
Speaker 5: request for some additional time, suggesting the court's taking the
13:30
Speaker 5: issue seriously, but hasn't yet found its way to a resolution.
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Speaker 3: So you've had two lower courts ruling that the ballroom
13:38
Speaker 3: project is probably illegal. But work was allowed to continue.
13:43
Speaker 3: I mean, why was work allowed to continue when they're
13:47
Speaker 3: saying that it's illegal?
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Speaker 5: I think it was an attempt to accommodate the national
13:53
Speaker 5: security concerns that are associated with the proposed construction below ground.
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Speaker 5: The government took the position. both in the district court
14:01
Speaker 5: and the appellate court, that the below ground construction was
14:05
Speaker 5: separable from the ballroom construction and that the below ground
14:09
Speaker 5: construction had all sorts of security implications, bunkers and emergency
14:16
Speaker 5: medical care facilities and that sort of thing. Very difficult
14:21
Speaker 5: for a court to second guess those kinds of concerns.
14:25
Speaker 5: especially when the government is basically.
14:27
Speaker 4: Admitting, down below anyway, that the.
14:30
Speaker 5: Ballroom part of the project is separable from the below-ground
14:34
Speaker 5: national security or security part of the project.
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Speaker 4: So the government.
14:39
Speaker 5: Pitched the matter to the lower courts, I believe, as
14:43
Speaker 5: a situation where we can do this below-ground thing without
14:46
Speaker 5: prejudice to the eventual construction of a ballroom above ground,
14:51
Speaker 5: and we can figure out what the legality of that
14:53
Speaker 5: is down the road. But in the meantime, we've already
14:56
Speaker 5: gotten this far with the national security below ground work,
15:00
Speaker 5: so let's continue with that. And I think that's why
15:04
Speaker 5: both courts agreed that the below ground work could continue,
15:08
Speaker 5: thinking that they would retain some control over the ultimate
15:12
Speaker 5: shape of the above ground ballroom. Now the government's taking
15:15
Speaker 5: the position, of course, that the above ground ballroom is
15:17
Speaker 5: integral with the below ground security concerns that led to
15:22
Speaker 5: the continuation of the construction in the first place.
15:25
Speaker 3: I mean, what we had here was President Trump knocking
15:29
Speaker 3: down the East Wing before anybody could blink their eyes.
15:32
Speaker 3: I mean, it was there one day. It seemed like
15:34
Speaker 3: it was down the next day. Three days, yeah. So
15:37
Speaker 3: he took that action without any authorization, and it's done.
15:43
Speaker 3: So what do the courts do to catch up to
15:45
Speaker 3: him you know, it's over.
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Speaker 5: So in terms of restoring the East Wing, I think
15:50
Speaker 5: you're right that it is done. And the question is,
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Speaker 5: now what is the proper response architecturally and historically? to
15:58
Speaker 5: the scars that have been created in this place that belongs.
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Speaker 4: To the public and belongs to the government.
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Speaker 5: It is within the control and stewardship of the Congress
16:07
Speaker 5: of the United States. And that's a question that is
16:09
Speaker 5: not easy to answer. There's no way to unring the
16:13
Speaker 5: bell or restore the East Wing. And I don't think
16:16
Speaker 5: anybody believes that what we should do is return to
16:20
Speaker 5: the best reconstruction or recreation of the East Wing we
16:24
Speaker 5: could find. I think the question is the legality of
16:27
Speaker 5: ongoing construction. And I think the lower courts, at least,
16:31
Speaker 5: with some justification, view that ongoing construction project as unlawful
16:35
Speaker 5: because not lawfully approved by Congress and therefore subject to limitation, control, injunction,
16:42
Speaker 5: and so forth. And then the question is, once that
16:44
Speaker 5: injunction takes hold, what will be the shape of the
16:48
Speaker 5: project going forward if President Trump is required to secure
16:52
Speaker 5: the the approvals and authorizations that he said he was
16:56
Speaker 5: going to get when he started making noise about the
16:59
Speaker 5: ballroom and never got, you know, because he decided he
17:02
Speaker 5: wanted to do it his own way without anyone else
17:05
Speaker 5: playing a part in the magnificent ballroom he was about
17:08
Speaker 5: to create.
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Speaker 3: Isn't this sending a message that illegal behavior is being rewarded?
17:14
Speaker 3: You get to complete your ballroom even though what you've
17:17
Speaker 3: done is illegal because you've gone this far already? This
17:20
Speaker 3: is a pattern and it happens in immigration cases. It
17:24
Speaker 3: happens in grant cases. It happens over and over again.
17:28
Speaker 3: When the courts finally get involved, it's too late. It's
17:32
Speaker 3: all over.
17:33
Speaker 4: No, it's true.
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Speaker 5: And what I call the first mover advantage that the
17:37
Speaker 5: president enjoys as an executive or commander in chief means
17:40
Speaker 5: that he can take action and proceed on the assumption
17:44
Speaker 5: that it's lawful until somebody tells him otherwise. I think
17:48
Speaker 5: that's been his basic M.O., And in past presidencies, not
17:53
Speaker 5: in every case, obviously, but presidents showed a great deal
17:56
Speaker 5: more restraint in this shadow of uncertain law. I think
18:00
Speaker 5: this president prefers to move in the shadow of uncertain law.
18:04
Speaker 5: And even when there's no uncertainty at all, if he
18:07
Speaker 5: believes that either the Constitution or some other grant of
18:10
Speaker 5: authority allows him to take the action, then he will
18:13
Speaker 5: take it and turn the rest of it over to
18:15
Speaker 5: the lawyers. And we've seen it, as you say, time
18:17
Speaker 5: and again in the immigration space. the removal of aliens
18:21
Speaker 5: under the Alien Enemies Act. We've seen it with the
18:24
Speaker 5: dismantling of USAID. We've seen it with the discharge of
18:28
Speaker 5: employees from positions in the executive branch without due process
18:32
Speaker 5: of law. If there were questions about the legality, there's
18:34
Speaker 5: a way to have a legal proceeding to determine whether
18:37
Speaker 5: a person properly holds an office. But instead, President Trump
18:40
Speaker 5: would rather fire now and litigate later. And that has been,
18:44
Speaker 5: I think, quite the pattern of his presidency.
18:47
Speaker 3: Well, it continues to work well for him. The Supreme
18:50
Speaker 3: Court seems to continue expanding presidential power. Is there any
18:55
Speaker 3: reason to think that it will limit him in this
18:58
Speaker 3: case with the White House ballroom?
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Speaker 5: There, I think, is reason to think that the Supreme
19:03
Speaker 5: Court will be concerned about President Trump's violation of appropriations
19:10
Speaker 5: limitations that Congress has imposed upon him. I'm not sure
19:14
Speaker 5: that his role as the unitary executive under Article II
19:19
Speaker 5: will be understood to override appropriations restrictions. So that may
19:23
Speaker 5: be a place where the Supreme Court is a bit
19:25
Speaker 5: more protective of the traditional allocation of responsibilities as between
19:30
Speaker 5: the President and the Congress of the United States. And
19:32
Speaker 5: so I think there's some hope in this case, given
19:36
Speaker 5: the fact that there's a pretty strong case to be
19:38
Speaker 5: made that Congress has previously appropriated money and understood itself
19:43
Speaker 5: to be the responsible party in making decisions about the
19:46
Speaker 5: shape of White House construction projects, there's some hope that
19:49
Speaker 5: the Supreme Court will understand the threat posed to congressional
19:53
Speaker 5: appropriation power by the actions of President Trump with respect
19:57
Speaker 5: to the White House, and perhaps that will have some
19:59
Speaker 5: radiating effect on other of the projects that he has
20:03
Speaker 5: in mind. There's a history, I think, of some minor
20:07
Speaker 5: alterations and improvements in the language of the relevant statute
20:11
Speaker 5: to the White House that are what you might call
20:14
Speaker 5: presidential vanity projects. The installation by FDR of a swimming
20:19
Speaker 5: pool indoors, the use of that pool by JFK, the
20:23
Speaker 5: decision to close the pool by Richard Nixon, and put
20:26
Speaker 5: a one-lane bowling alley in the White House. The decision
20:29
Speaker 5: by Gerald Ford to create an outdoor swimming pool, these
20:33
Speaker 5: are all relatively modest changes that don't really change the
20:36
Speaker 5: footprint of the White House or the appearance of it.
20:39
Speaker 5: Nothing to compare, obviously, to a $ 400 million ballroom project
20:44
Speaker 5: of the kind that's currently underway. And so it's hard
20:47
Speaker 5: for the current project to fit within that tradition of
20:51
Speaker 5: alterations and improvements that we've seen in the past. And
20:53
Speaker 5: for that reason, It may be that the Supreme Court
20:56
Speaker 5: pushes back a bit.
20:57
Speaker 3: Does it make a difference that Trump says that private
21:01
Speaker 3: donations are paying for the ballroom, although some reporting shows
21:05
Speaker 3: that public funds are covering more than half the cost?
21:09
Speaker 4: Yeah, that's a good question.
21:10
Speaker 5: And I was puzzled by that myself a bit because
21:14
Speaker 5: one of the claims being made here is that the
21:16
Speaker 5: National Park Service collects appropriated funds for use in connection
21:22
Speaker 5: with National Park Service projects. And so this relevant statute
21:27
Speaker 5: characterizes those donated funds as appropriated. And so the government
21:32
Speaker 5: has kind of cobbled together an argument that goes like this.
21:35
Speaker 5: Once the money has been collected and placed in the
21:38
Speaker 5: vault of the National Park Service, it's now appropriated funds.
21:42
Speaker 5: And the authorization to use appropriated funds that appears elsewhere
21:47
Speaker 5: in federal law can be stitched together with those donations
21:52
Speaker 5: and create the appearance that these funds have been, in fact,
21:56
Speaker 5: appropriated for the use that they have been put to.
21:59
Speaker 5: I think that's a very difficult argument to make in
22:02
Speaker 5: the end, given the jealousy with which the Congress of
22:05
Speaker 5: the United States guards its appropriation powers. And it's uncertain,
22:09
Speaker 5: I think, whether that kind of argument will be accepted
22:12
Speaker 5: by the Supreme Court. But that's the argument. You know,
22:16
Speaker 5: there's been nothing on this scale before in terms of
22:20
Speaker 5: donated funds put to the uses that they are being
22:23
Speaker 5: put to here. And it's at least very hard for
22:26
Speaker 5: me to see how this could be considered the kind
22:29
Speaker 5: of congressional control that we normally associate with the appropriations process.
22:35
Speaker 3: What would be the best outcome? the best case scenario
22:40
Speaker 3: for those who want to see supervision and independent oversight
22:45
Speaker 3: of the construction of the ballroom?
22:48
Speaker 5: So if you were concerned about construction of a ballroom
22:51
Speaker 5: and you wanted the best possible outcome you could get,
22:56
Speaker 5: then it seems a remand to the district court is
22:59
Speaker 5: going to be required. And that's going to, you know,
23:02
Speaker 5: require the district court to continue To oversee the project,
23:06
Speaker 5: I mean, one possibility is a hold on above-ground construction,
23:10
Speaker 5: and that's all that's really on the table right now.
23:13
Speaker 5: Put a hold on above-ground construction while we conduct the
23:17
Speaker 5: necessary assessments and run through the necessary authorization and approval processes.
23:25
Speaker 5: That could all be handled as expeditiously as possible. I
23:29
Speaker 5: assume that President Trump might want to try to get
23:30
Speaker 5: all that done before the November election cycle. But it's
23:34
Speaker 5: obviously up to him to decide how he wants to
23:37
Speaker 5: secure that approval. And then once approvals have been granted,
23:40
Speaker 5: then the project could continue. And I don't necessarily see
23:44
Speaker 5: it as delaying the completion or leaving a hole in
23:48
Speaker 5: the ground. It seems to me like everybody's going to
23:51
Speaker 5: say at the end of the day, Let's do it.
23:53
Speaker 5: Let's just not do exactly all of that. Or maybe
23:56
Speaker 5: we can scale it back. Or in a sense, maybe
23:59
Speaker 5: it can refer to the pre-existing East Wing in some
24:02
Speaker 5: way that reminds us that it used to be there.
24:04
Speaker 4: I don't know.
24:05
Speaker 5: Hard to predict how it might shake out. But without consultation,
24:09
Speaker 5: you're not going to get anything but Trump's vision, obviously.
24:13
Speaker 3: And there is no indication as to when the Supreme
24:17
Speaker 3: Court will rule. It's been great getting your insights, James.
24:20
Speaker 3: Thanks so much. That's Professor James Fander of Northwestern Law School.
24:26
Speaker 3: Coming up next on the Bloomberg Law Show, an Air
24:28
Speaker 3: Force major is facing criminal charges after calling for Trump's impeachment.
24:34
Speaker 3: I'm June Grosso, and you're listening to Bloomberg. On July 1st,
24:40
Speaker 3: at a protest on the steps of the U.S. Capitol,
24:43
Speaker 3: Air Force Major Jason Watson, dressed in his uniform, call
24:48
Speaker 3: for the impeachment of President Trump for ordering military action
24:52
Speaker 3: against foreign countries like Iran.
24:55
Speaker 6: When the President of the United States orders military action
24:58
Speaker 6: against foreign countries absent an emergency scenario where American interests
25:04
Speaker 6: are under imminent dire threat, as was done with Venezuela, Cuba,
25:10
Speaker 6: and Iran, that's an unconstitutional usurpation of Congress's authority and
25:15
Speaker 6: a violation of the War Powers Clause. These violations resulted
25:20
Speaker 6: in the deaths of 13 service members and injuries of
25:24
Speaker 6: hundreds more. For this, the president and vice president must
25:28
Speaker 6: be impeached, convicted, and removed.
25:34
Speaker 3: After Watson, who served in the Air Force for 17 years,
25:38
Speaker 3: repeated his criticism of Trump on CNN, he was criminally
25:43
Speaker 3: charged under the Uniform Code of Military Justice for with
25:47
Speaker 3: violating Article 88 for contemptuous remarks about Trump, violating Article
25:54
Speaker 3: 92 for disobeying orders, and violating Article 133 for conduct
25:59
Speaker 3: unbecoming an officer. The Article 88 contemptuous remarks charges are
26:05
Speaker 3: exceedingly rare, so much so that there have only been
26:09
Speaker 3: a few instances since the modern code of military justice
26:13
Speaker 3: was enacted 75 years ago. Joining me is Joshua Kastenberg,
26:18
Speaker 3: a professor at the University of New Mexico Law School
26:22
Speaker 3: and a former judge and lawyer in the U.S. Air Force. Josh,
26:25
Speaker 3: let's start with the charges under Article 88 of the
26:29
Speaker 3: Uniform Code of Military Justice, which prohibits officers from using
26:35
Speaker 3: contemptuous words against the president, the vice president, Congress, and
26:40
Speaker 3: other U.S. representatives.
26:42
Speaker 7: Well, those charges, first of all, they're quite ancient. They
26:45
Speaker 7: go back to, in a sense, Thomas Jefferson, when the
26:49
Speaker 7: first articles of war were being rewritten from the British.
26:53
Speaker 7: And one of the things that was changed from the
26:56
Speaker 7: British article... to what we now know as Article 88,
27:00
Speaker 7: is the U.S. limited it to the chain of command
27:03
Speaker 7: in the military. So it's an old charge. It's a
27:06
Speaker 7: charge that has been used in a very selective manner
27:10
Speaker 7: over the years. You know, you can go back to
27:12
Speaker 7: the Vietnam War. There was a lieutenant calling Lyndon Johnson
27:15
Speaker 7: a war criminal. And then you can jump ahead to
27:18
Speaker 7: the president, and we've got this major who's making disparaging
27:21
Speaker 7: words against the president. But there have been hundreds of
27:24
Speaker 7: others who've done it and haven't been charged.
27:26
Speaker 3: What's the standard used to determine whether the remarks are contemptuous?
27:32
Speaker 7: So remarks tend to be considered contemptuous if they're made
27:36
Speaker 7: in a manner that would undermine confidence and the reliability
27:41
Speaker 7: of the chain of command. And so you can go back,
27:43
Speaker 7: for example, to the Vietnam War, and there was this
27:46
Speaker 7: army captain, and he was a noted dermatologist. He was
27:50
Speaker 7: training corpsmen. His name was Captain Levy. And he started
27:54
Speaker 7: advising students who were, you know, enlisted members in the
27:57
Speaker 7: United States Army's Medical Corps not to go to Vietnam
28:01
Speaker 7: by arguing that it was an imperialistic, it was a
28:04
Speaker 7: white man's war, it was making the rich richer, it
28:06
Speaker 7: was immoral and unconstitutional. And, you know, he had a
28:10
Speaker 7: position of authority over them. And so... He was convicted
28:14
Speaker 7: in a court martial. It went all the way up
28:16
Speaker 7: to the United States Supreme Court, and the Supreme Court
28:19
Speaker 7: upheld the conviction in a case we know as Parker v.
28:22
Speaker 4: Levy.
28:22
Speaker 7: Today, I think one of the things the defense counsel
28:26
Speaker 7: will raise is the idea that this major would undermine
28:30
Speaker 7: the chain of command in military discipline is unprovable, and
28:35
Speaker 7: that is a burden on the government to have to prove.
28:38
Speaker 3: Does the prosecution have to show that what he said
28:42
Speaker 3: was contemptuous rather than just critical. And what's the line?
28:47
Speaker 7: Well, yeah, I mean, you're absolutely right in asking that question.
28:50
Speaker 7: Words have meaning, and they particularly have meaning in the law.
28:54
Speaker 7: The prosecution has to prove, beyond a reasonable doubt, that
28:58
Speaker 7: the words were contemptuous. So what might separate the major from, say,
29:03
Speaker 7: Lieutenant Howe in 1967, who stood outside of Fort Bliss
29:08
Speaker 7: with the sandwich board calling Lyndon Johnson a war criminal,
29:12
Speaker 7: is that it's unclear to me whether the major engaged
29:16
Speaker 7: in any superfluous or mean-spirited name-calling and rather just exercised
29:22
Speaker 7: what he believed his prerogative to warn Congress about conditions
29:27
Speaker 7: in the military and how the chain of command might
29:29
Speaker 7: be acting in an unconstitutional manner. That might not clear
29:34
Speaker 7: the hurdle of contempt, but I suspect it will.
29:38
Speaker 3: People in the military don't have the same First Amendment
29:40
Speaker 3: rights that the rest.
29:42
Speaker 7: Of us do. You're absolutely correct. I mean, one of
29:44
Speaker 7: the things that you learned is that you are surrendering
29:48
Speaker 7: to the federal government some of your free speech rights,
29:52
Speaker 7: and that includes the right to be politically engaged in
29:55
Speaker 7: a military status. But you know, this administration has done
30:00
Speaker 7: more to water down the political military barrier, and they've
30:04
Speaker 7: instead politicized the military to an unusual degree, that they've
30:08
Speaker 7: set an example that it's okay to cross the line.
30:13
Speaker 7: And you see it in the speeches that Secretary of
30:16
Speaker 7: Defense Hegseth has made to uniformed personnel, the speeches the
30:21
Speaker 7: president makes at the academy graduation, and just basically their
30:25
Speaker 7: public comments and the overuse of the military to promote
30:29
Speaker 7: the president's ideology. There's no equal to that in my lifetime.
30:34
Speaker 7: And so, I suspect one of the things that this
30:38
Speaker 7: major's attorneys are going to argue is that it's the
30:42
Speaker 7: president himself who's moved the definitions of what political activity
30:47
Speaker 7: and contemptuous language are. And therefore, that is the standard
30:51
Speaker 7: by which our client must be judged. And therefore, they
30:54
Speaker 7: can't prove beyond a reasonable doubt he's guilty of contempt.
30:57
Speaker 3: There are 10 charges in all under three articles. Tell
31:01
Speaker 3: us about the other charges.
31:03
Speaker 7: So Article 92 is a failure to obey lawful orders
31:07
Speaker 7: or regulations. And I can tell you that demonstrating in
31:12
Speaker 7: a military uniform for any cause without permission whether it's
31:17
Speaker 7: for wildlife preservation, children's rights, or a political rally that's partisan.
31:23
Speaker 7: If you don't have permission to be in uniform and
31:25
Speaker 7: you're part of it, you've crossed the line. Now, again,
31:29
Speaker 7: selective prosecution is something that I'm sure the defense counsel
31:33
Speaker 7: in this case will raise, because they'll point out the
31:36
Speaker 7: fact that the president has used the military at his
31:39
Speaker 7: partisan rallies. No one there has been prosecuted, so we'll
31:42
Speaker 7: see what happens. As for Article 133, that's the easiest
31:46
Speaker 7: of all the charges to prove. It's called conduct unbecoming
31:48
Speaker 7: an officer and a gentleman, and it basically throws it
31:52
Speaker 7: out to the court-martial whether or not this major crossed
31:57
Speaker 7: the line. The prosecution doesn't really have to prove that
32:01
Speaker 7: there's a threat to good order and discipline. It's just
32:04
Speaker 7: rather whether or not this major has crossed the line
32:07
Speaker 7: against the norms and become something of a criminal embarrassment
32:11
Speaker 7: to the military. I mean, the classic line of that
32:14
Speaker 7: is an officer who goes and does something legal like gambling,
32:17
Speaker 7: but falls into debt and can't pay the debt back.
32:21
Speaker 7: But you do see examples of conduct unbecoming an officer
32:24
Speaker 7: and a gentleman for lots of different things that are
32:27
Speaker 7: ordinarily legal. I think of all the charges, this is
32:30
Speaker 7: the easiest to prove, but this major's attorneys are going
32:33
Speaker 7: to argue that their client is selectively prosecuted in violation
32:39
Speaker 7: of his constitutional rights.
32:41
Speaker 3: It hasn't actually been decided yet whether Major Watson will
32:46
Speaker 3: have to face trial.
32:47
Speaker 7: Yeah, well, the thing is that he's held in pretrial confinement,
32:52
Speaker 7: which is very unusual for an officer. I mean, even
32:56
Speaker 7: officers who are accused of violent crimes like rape generally
33:01
Speaker 7: don't end up being placed in pretrial confinement. So first
33:05
Speaker 7: we have to wait and see whether a military judge
33:08
Speaker 7: Or if they go and try to file in U.S.
33:11
Speaker 7: District Court, whether a U.S. District Court judge would order
33:14
Speaker 7: him released from pretrial confinement under the argument that, look,
33:18
Speaker 7: he's not a threat to good order and discipline. He
33:20
Speaker 7: hasn't committed a violent crime. He's not charged with espionage.
33:24
Speaker 7: This is just something that normal human beings can do
33:28
Speaker 7: in the United States. So even before we were to
33:31
Speaker 7: get to a trial, that could become an issue. Then
33:34
Speaker 7: this has to go through the military's equivalent of a
33:37
Speaker 7: grand jury. that's done by one individual. It's not really
33:41
Speaker 7: a grand jury, but it's the equivalent of a grand jury.
33:44
Speaker 7: It's a pretrial investigation. And then and only then would
33:48
Speaker 7: a senior military officer known as a general court-martial convening authority,
33:53
Speaker 7: and usually those are major generals or rear admirals, upper
33:58
Speaker 7: half or higher, lieutenant generals, four-star generals, and the like,
34:03
Speaker 7: able to convene a general court-martial against this major. So
34:06
Speaker 7: it's a process. And one of the things that makes
34:09
Speaker 7: this process different is that I think the government has
34:13
Speaker 7: opened the door to the possibility of the defense counsel
34:17
Speaker 7: being able to stop this process in its tracks through
34:21
Speaker 7: some sort of appeal to the United States District Court.
34:24
Speaker 3: I thought that when you're in the military, you're subject
34:28
Speaker 3: to the jurisdiction of the military courts. How would he
34:31
Speaker 3: get this into federal district court?
34:34
Speaker 7: Well, when you can prove to the federal courts that
34:37
Speaker 7: the government is either incompetent, has violated your client's rights
34:42
Speaker 7: to a constitutional degree, or has committed a major infraction
34:47
Speaker 7: of the law, you can get it into the U.S.
34:50
Speaker 7: District Court. It's a very high bar. But if you
34:53
Speaker 7: remember the case of Lieutenant Aaron Watada, Aaron Watada did
34:57
Speaker 7: not want to go and comply with his orders to
34:59
Speaker 7: deploy to Iraq or Afghanistan. and the prosecution was getting
35:04
Speaker 7: ready to prosecute him in a court-martial for failure to go.
35:08
Speaker 7: There was some problem with the handling of evidence, of
35:12
Speaker 7: the discovery requirement to give Watauda's attorneys all of the
35:16
Speaker 7: government's evidence. The defense counsel shrewdly went to U.S. District Court,
35:21
Speaker 7: and the U.S. District Court shut that case down, and
35:24
Speaker 7: the military was never able to to go forward and
35:27
Speaker 7: prosecute Lieutenant Aaron Watada for something that, at least facially,
35:31
Speaker 7: Aaron Watada did, which was refuse to comply with orders.
35:35
Speaker 7: But for every Lieutenant Watada, there are hundreds of people
35:38
Speaker 7: who the military more or less functions as it's supposed
35:41
Speaker 7: to do, and they can't get in the U.S. District Court.
35:44
Speaker 7: What makes this case different is its uniqueness.
35:47
Speaker 3: It seems like they're charging him in many different ways
35:51
Speaker 3: for the same act.
35:53
Speaker 7: Yeah. Well, that's one area where the military justice system
35:58
Speaker 7: can misfire because a military trial judge, just like a
36:03
Speaker 7: state criminal trial judge or a U.S. district court judge,
36:07
Speaker 7: has to make sure that the charges do not overlap
36:11
Speaker 7: to such a degree as to violate the Constitution's prohibition
36:15
Speaker 7: against double jeopardy. And I've taken a look at the
36:18
Speaker 7: way this case has been charged, and one of the
36:20
Speaker 7: features of it to me is that there is enough
36:23
Speaker 7: of an overlap to create a constitutional issue in this case.
36:27
Speaker 7: A military trial judge could say to the government, you're
36:30
Speaker 7: going to have to decide which of these charges you're
36:33
Speaker 7: going forward on and which you're not because there's significant overlap,
36:36
Speaker 7: or I'll throw it out to the court-martial to do that.
36:39
Speaker 7: The other possibility I could see a military judge doing
36:42
Speaker 7: is saying, I'm just going to consolidate a bunch of
36:44
Speaker 7: these charges if he's found guilty of them for the
36:48
Speaker 7: purpose of sentencing into a singular charge.
36:51
Speaker 3: And Watson, who's about three years from retirement, could be
36:55
Speaker 3: dismissed from the service and lose his pay and benefits
36:59
Speaker 3: if he's convicted. And there's also the possibility of jail time.
37:03
Speaker 3: Thanks for joining me, Josh. That's Professor Joshua Kastenberg of
37:07
Speaker 3: the University of New Mexico Law School. And that's it
37:10
Speaker 3: for this edition of the Bloomberg Law Show. Remember, you
37:13
Speaker 3: can always get the latest legal news on our Bloomberg
37:15
Speaker 3: Law Podcast. You can find them on Apple Podcasts, Spotify,
37:19
Speaker 3: and at www.bloomberg.com slash podcast slash law. And remember to
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Speaker 3: tune into the Bloomberg Law Show every weeknight at 10 p.m.
37:29
Speaker 3: Wall Street time. I'm June Grosso, and you're listening to Bloomberg.