1 00:00:02,759 --> 00:00:07,480 Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio. 2 00:00:09,000 --> 00:00:13,200 Speaker 1: This time around, it took only hours after President Trump's 3 00:00:13,320 --> 00:00:17,840 Speaker 1: latest global tariffs took effect last Friday before a legal 4 00:00:17,960 --> 00:00:22,160 Speaker 1: challenge was mounted against them. Small businesses filed a pair 5 00:00:22,239 --> 00:00:26,560 Speaker 1: of lawsuits in the US Court of International Trade accusing 6 00:00:26,640 --> 00:00:30,280 Speaker 1: Trump of unlawfully using Section three oh one of the 7 00:00:30,360 --> 00:00:34,159 Speaker 1: Trade Act of nineteen seventy four to the detriment of 8 00:00:34,200 --> 00:00:40,800 Speaker 1: American businesses and consumers. California based watchmaker Asher Rapkin is 9 00:00:40,880 --> 00:00:42,640 Speaker 1: one of the plaintiffs. 10 00:00:42,479 --> 00:00:45,600 Speaker 2: Congresst's tariffs, not one person alone, and my company, like 11 00:00:45,760 --> 00:00:48,839 Speaker 2: so many others, are bearing the financial burden of this. 12 00:00:49,280 --> 00:00:52,360 Speaker 1: The duties are set at a rate between ten percent 13 00:00:52,800 --> 00:00:56,760 Speaker 1: and twelve point five percent and apply to imports from 14 00:00:56,800 --> 00:01:01,200 Speaker 1: around sixty economies that the US accused of failing to 15 00:01:01,400 --> 00:01:05,800 Speaker 1: enforce bands on foreign goods made with forced labor and 16 00:01:05,880 --> 00:01:10,759 Speaker 1: therefore enjoying an unfair competitive advantage. My guest is an 17 00:01:10,800 --> 00:01:15,200 Speaker 1: expert in trade law. Timothy Bright built a partner Wileye Rhyn. 18 00:01:16,200 --> 00:01:20,880 Speaker 1: Tim start by telling us about the administration's latest global 19 00:01:21,080 --> 00:01:24,319 Speaker 1: tariffs relating to forced labor. 20 00:01:25,080 --> 00:01:29,720 Speaker 3: This is a very broad news set of tariffs announced 21 00:01:29,840 --> 00:01:34,679 Speaker 3: last week, the broadest since the reciprocal tariffs announced in 22 00:01:34,760 --> 00:01:39,720 Speaker 3: the Rose Garden under the International Emergency Economic Powers Act, 23 00:01:39,760 --> 00:01:42,520 Speaker 3: which was later struck down by the Supreme Court. So 24 00:01:43,000 --> 00:01:47,039 Speaker 3: these are new tariffs relating to forced labor on more 25 00:01:47,120 --> 00:01:52,640 Speaker 3: than sixty economies or sixty trading partners. These tariffs range 26 00:01:52,760 --> 00:01:57,320 Speaker 3: from ten percent to twelve and a half percent. They 27 00:01:57,360 --> 00:02:02,360 Speaker 3: took effect on July twenty four, which was coincidentally or 28 00:02:02,400 --> 00:02:06,800 Speaker 3: not the same day that the prior ten percent tariffs 29 00:02:06,840 --> 00:02:10,200 Speaker 3: were set to expire. And these tariffs are to address 30 00:02:10,400 --> 00:02:13,640 Speaker 3: forced labor and supply chains, as well as whether or 31 00:02:13,639 --> 00:02:17,960 Speaker 3: not countries have forced labor laws on their books and 32 00:02:18,120 --> 00:02:21,440 Speaker 3: enforce them effectively. And I'm sure we all agree that 33 00:02:21,520 --> 00:02:24,640 Speaker 3: forced labor is a serious issue. No one wants to 34 00:02:24,680 --> 00:02:27,840 Speaker 3: have a product in their home or business that's made 35 00:02:27,960 --> 00:02:30,560 Speaker 3: using forced labor. But the question is not just about 36 00:02:30,760 --> 00:02:33,320 Speaker 3: is forced labor used, but also do these countries have 37 00:02:33,480 --> 00:02:36,120 Speaker 3: laws and do they enforce them. I'll also say there 38 00:02:36,160 --> 00:02:40,120 Speaker 3: are lots of exceptions and exclusions to these tariffs that 39 00:02:40,200 --> 00:02:44,400 Speaker 3: were announced last week. Some are products specific, and also 40 00:02:44,480 --> 00:02:47,760 Speaker 3: if there are other tariffs involved, there may be exclusions 41 00:02:48,040 --> 00:02:50,799 Speaker 3: from these ten to twelve and a half percent tariffs. 42 00:02:51,360 --> 00:02:54,600 Speaker 1: Is this just, you know, find a reason to impose 43 00:02:54,680 --> 00:02:58,799 Speaker 1: new tariffs because the report from the US Trade Representative 44 00:02:59,360 --> 00:03:05,600 Speaker 1: doesn't say whether specific nations are actually importing goods made 45 00:03:05,639 --> 00:03:09,080 Speaker 1: with forced labor or whether products are being made in 46 00:03:09,120 --> 00:03:12,480 Speaker 1: those countries using forced labor. I mean, is this just 47 00:03:12,520 --> 00:03:15,480 Speaker 1: a made up reason to impose new tariffs? 48 00:03:15,760 --> 00:03:19,160 Speaker 3: Well, that's what opponents are alleging, that this is not 49 00:03:19,280 --> 00:03:21,960 Speaker 3: just a coincidence that the new tariffs were announced to 50 00:03:22,040 --> 00:03:25,880 Speaker 3: replace the old tariffs that expired, and that these are 51 00:03:25,919 --> 00:03:29,400 Speaker 3: just a pretext. But that being said, the fact that 52 00:03:29,600 --> 00:03:33,400 Speaker 3: countries are starting to take greater action against forced labor 53 00:03:33,880 --> 00:03:37,480 Speaker 3: means that there is a reason to take action and 54 00:03:37,960 --> 00:03:41,200 Speaker 3: that it remains an important issue and one where the 55 00:03:41,360 --> 00:03:45,200 Speaker 3: United States has stronger laws than many of our trading partners. 56 00:03:45,560 --> 00:03:48,880 Speaker 3: We have the Weager Force Labor Prevention Act, which has 57 00:03:49,040 --> 00:03:53,640 Speaker 3: caused seizure of hundreds of millions of dollars worth of 58 00:03:53,680 --> 00:03:56,840 Speaker 3: goods at the border that are suspected to use force labor. 59 00:03:56,960 --> 00:03:59,800 Speaker 3: So it is a real issue. But at the same 60 00:03:59,840 --> 00:04:03,640 Speaker 3: time time that the timing is perhaps not just a 61 00:04:03,640 --> 00:04:07,280 Speaker 3: coincidence that the new rates took effect on the same 62 00:04:07,360 --> 00:04:09,000 Speaker 3: day that the old rates expired. 63 00:04:09,240 --> 00:04:12,560 Speaker 1: So there's already been a court challenge. Tell us about 64 00:04:12,560 --> 00:04:13,640 Speaker 1: the court challenge. 65 00:04:14,000 --> 00:04:17,719 Speaker 3: So some of the plaintiffs that challenged earlier Trump tariffs 66 00:04:17,880 --> 00:04:21,600 Speaker 3: have again filed lawsuit at the Court of International Trade. 67 00:04:22,080 --> 00:04:28,800 Speaker 3: And these plaintiffs have alleged that USTR's forced labor investigation 68 00:04:29,920 --> 00:04:35,280 Speaker 3: was designed to impose a predetermined tariff policy. And they 69 00:04:35,320 --> 00:04:39,279 Speaker 3: said in fact that the rationale of addressing forced labor 70 00:04:39,400 --> 00:04:43,240 Speaker 3: is just a pretext for tariffs. So there has already 71 00:04:43,279 --> 00:04:46,560 Speaker 3: been a challenge. The Court of International Trade will hear it. 72 00:04:47,279 --> 00:04:52,200 Speaker 3: That being said, courts to date have largely upheld prior 73 00:04:52,360 --> 00:04:58,520 Speaker 3: administration's use of Section three oh one, including when the 74 00:04:58,560 --> 00:05:03,960 Speaker 3: first Trump administration and imposed tariffs on hundreds of billions 75 00:05:03,960 --> 00:05:07,800 Speaker 3: of dollars worth of goods coming from China, So the 76 00:05:07,880 --> 00:05:12,360 Speaker 3: courts have largely been supportive of the president's use of 77 00:05:12,360 --> 00:05:15,440 Speaker 3: this law. That being said, this is a very sweeping 78 00:05:15,560 --> 00:05:19,600 Speaker 3: action and it remains to be seen if there is 79 00:05:20,040 --> 00:05:25,920 Speaker 3: enough legal support in these sixty different investigations to allow 80 00:05:26,000 --> 00:05:29,120 Speaker 3: these tariffs to stand in court. I'll also note that 81 00:05:29,200 --> 00:05:32,040 Speaker 3: the administration trying to take this action in a way 82 00:05:32,080 --> 00:05:35,840 Speaker 3: so that each of the sixty investigations stands separately, so 83 00:05:35,880 --> 00:05:40,760 Speaker 3: that an appeal would only affect individual country tariffs rather 84 00:05:40,839 --> 00:05:45,240 Speaker 3: than the entire sixty countries structure that was announced last week. 85 00:05:45,480 --> 00:05:48,560 Speaker 1: Yeah, I was going to ask whether the court will 86 00:05:48,800 --> 00:05:53,480 Speaker 1: examine the justification for the tariffs on each of the countries. 87 00:05:53,839 --> 00:05:57,800 Speaker 3: That's what the administration is trying to encourage, but it's 88 00:05:57,839 --> 00:06:01,960 Speaker 3: not clear yet. And I think the plaintiffs are challenging 89 00:06:02,000 --> 00:06:06,880 Speaker 3: the whole architecture, not just individual country findings, but the 90 00:06:06,920 --> 00:06:11,200 Speaker 3: whole fact that this was not really about forced labor. 91 00:06:11,360 --> 00:06:15,760 Speaker 3: In their view, it was about replacing the other tariffs 92 00:06:15,800 --> 00:06:18,480 Speaker 3: that were struck down by the Supreme Court or that 93 00:06:18,680 --> 00:06:22,160 Speaker 3: expired after their ninety day period ran its course. 94 00:06:22,960 --> 00:06:27,440 Speaker 1: And the businesses are represented by the Liberty Justice Center, 95 00:06:28,080 --> 00:06:32,919 Speaker 1: and that was the group that challenged Trump's earlier global tariffs. 96 00:06:33,320 --> 00:06:36,680 Speaker 3: That's right, The Liberty Justice Center is the group that 97 00:06:36,800 --> 00:06:40,080 Speaker 3: filed these actions. They filed on behalf of a couple 98 00:06:40,120 --> 00:06:44,599 Speaker 3: of small businesses, and they've structured this as a potential 99 00:06:44,720 --> 00:06:48,680 Speaker 3: class action so that many other plaintiffs can potentially join 100 00:06:49,120 --> 00:06:51,600 Speaker 3: to strengthen the suit against the Trump administration. 101 00:06:52,680 --> 00:06:56,520 Speaker 1: So let's talk about the next round of Section three 102 00:06:56,560 --> 00:06:59,400 Speaker 1: oh one tariffs. Where does that stand? 103 00:07:00,520 --> 00:07:06,279 Speaker 3: So the next and potentially bigger set of tariffs to 104 00:07:06,320 --> 00:07:10,320 Speaker 3: come is also under section three h one of the 105 00:07:10,360 --> 00:07:15,520 Speaker 3: Trade laws. So again this challenges unreasonable practices of foreign 106 00:07:16,040 --> 00:07:21,520 Speaker 3: countries that burden and restrict US commerce. And these investigations 107 00:07:21,680 --> 00:07:29,280 Speaker 3: relate to structural overcapacity. So where do countries maintain massive 108 00:07:29,320 --> 00:07:35,440 Speaker 3: amounts of subsidized capacity that ends up harming US industries 109 00:07:35,960 --> 00:07:42,280 Speaker 3: because that excess capacity gets sent here and negatively affects 110 00:07:42,880 --> 00:07:46,320 Speaker 3: US companies and industries that are trying to compete. So 111 00:07:46,440 --> 00:07:51,600 Speaker 3: this investigation involves sixteen countries. China, of course, is the 112 00:07:51,640 --> 00:07:55,000 Speaker 3: biggest and is probably the biggest problem as it relates 113 00:07:55,000 --> 00:07:59,600 Speaker 3: to structural overcapacity. Many of my clients have seen over 114 00:07:59,640 --> 00:08:05,160 Speaker 3: the years, whether it's steel, aluminum, solar wood products, that 115 00:08:05,760 --> 00:08:10,960 Speaker 3: China builds massive amounts of state subsidized capacity that that 116 00:08:11,120 --> 00:08:14,680 Speaker 3: results in dumping, and that access product gets sent to 117 00:08:14,720 --> 00:08:18,320 Speaker 3: the US market, which is large and relatively open and 118 00:08:18,360 --> 00:08:25,000 Speaker 3: attractively priced. So these investigations are less predictable, and they've 119 00:08:25,000 --> 00:08:28,360 Speaker 3: been going on in parallel with the forced labor investigations. 120 00:08:28,480 --> 00:08:32,200 Speaker 3: But this will be a very important outcome and many 121 00:08:32,960 --> 00:08:36,760 Speaker 3: businesses and industries are watching this carefully to see what 122 00:08:37,200 --> 00:08:42,680 Speaker 3: USTR does. One key question is the question of how 123 00:08:42,720 --> 00:08:47,560 Speaker 3: do you measure over capacity. Some industries, like steel, have 124 00:08:48,120 --> 00:08:53,320 Speaker 3: measures in place to gauge, while China has much more 125 00:08:53,400 --> 00:08:56,160 Speaker 3: steel capacity than it needs and sends all of its 126 00:08:56,160 --> 00:09:00,240 Speaker 3: access here. Other industries, it's less clear. Even though there 127 00:09:00,280 --> 00:09:03,559 Speaker 3: is over capacity, how you measure it and how will 128 00:09:03,640 --> 00:09:07,960 Speaker 3: the US Trade representative gather all that information for a 129 00:09:08,040 --> 00:09:09,080 Speaker 3: country as a whole. 130 00:09:09,960 --> 00:09:15,319 Speaker 1: Now Canada is getting special treatment. The administration has announced 131 00:09:15,360 --> 00:09:19,840 Speaker 1: plans to impose fifty percent tariffs on a range of 132 00:09:19,880 --> 00:09:24,880 Speaker 1: Canadian goods using a century old law, the Smooth Haley 133 00:09:25,080 --> 00:09:25,680 Speaker 1: ter eff Act. 134 00:09:26,760 --> 00:09:31,679 Speaker 3: Yes. Yes, so the administration threatened action or announced action 135 00:09:31,880 --> 00:09:35,720 Speaker 3: thirty days in advance under section three thirty eight of 136 00:09:35,800 --> 00:09:38,320 Speaker 3: the Trade Laws. As you mentioned, this is part of 137 00:09:38,360 --> 00:09:43,200 Speaker 3: the Smooth Holey Tariff Act, which was highlighted in everyone's 138 00:09:43,400 --> 00:09:47,600 Speaker 3: favorite movie Ferris Bueller's Day Off. Yes, a provision that 139 00:09:47,720 --> 00:09:51,120 Speaker 3: has almost never been used before, and I think not 140 00:09:51,320 --> 00:09:54,959 Speaker 3: in the last forty or fifty years. And there are 141 00:09:55,000 --> 00:10:01,200 Speaker 3: three types of a wedged discrimination against US products by 142 00:10:01,360 --> 00:10:08,520 Speaker 3: Canada relating to motor vehicles, dairy products, and alcoholic beverages, 143 00:10:09,080 --> 00:10:13,560 Speaker 3: So for example, it's fairly well known that Canadian liquor 144 00:10:13,600 --> 00:10:19,000 Speaker 3: stores are not carrying US alcoholic beverages. And similarly, there 145 00:10:19,040 --> 00:10:22,120 Speaker 3: have been long standing disputes with respect to Canada and 146 00:10:22,200 --> 00:10:26,200 Speaker 3: dairy products. So those are the alleged discrimination by the 147 00:10:26,200 --> 00:10:30,559 Speaker 3: Trump administration. The tariffs that are announced that would take 148 00:10:30,600 --> 00:10:34,760 Speaker 3: effect in a month would be fifty percent tariffs, affecting 149 00:10:34,800 --> 00:10:39,200 Speaker 3: about twenty billion dollars in trade. Again, there would be 150 00:10:39,280 --> 00:10:43,720 Speaker 3: some carve outs and some exclusions, for example, on products 151 00:10:43,760 --> 00:10:47,600 Speaker 3: already subject to national security tariffs. And I think it's 152 00:10:47,679 --> 00:10:53,280 Speaker 3: clear that this announcement is in part to build leverage 153 00:10:53,559 --> 00:11:00,160 Speaker 3: to use against Canada in the ongoing USMCA negotiations to 154 00:11:00,240 --> 00:11:03,240 Speaker 3: try and shure up that trade agreement. The Trump administration, 155 00:11:03,360 --> 00:11:08,280 Speaker 3: which of course negotiated USMCA in the first place and 156 00:11:08,440 --> 00:11:10,840 Speaker 3: said a number of years ago that it was the 157 00:11:10,840 --> 00:11:14,840 Speaker 3: best trade deal ever, now has major concerns and has 158 00:11:14,880 --> 00:11:18,920 Speaker 3: threatened to not renew the agreement, and negotiations are ongoing there. 159 00:11:19,400 --> 00:11:23,440 Speaker 3: So we'll monitor to see if these tariffs actually go 160 00:11:23,559 --> 00:11:26,679 Speaker 3: into effect in thirty days or whether there can be 161 00:11:26,720 --> 00:11:29,920 Speaker 3: some sort of resolution. I will point out that this 162 00:11:30,000 --> 00:11:33,160 Speaker 3: is a real problem for a number of US Canada 163 00:11:33,240 --> 00:11:37,520 Speaker 3: supply chains. So these tariffs, if they do take a fact, 164 00:11:37,640 --> 00:11:41,559 Speaker 3: could end up harming some US companies in industries that 165 00:11:41,760 --> 00:11:43,839 Speaker 3: the Trump administration is trying to help. 166 00:11:44,320 --> 00:11:49,240 Speaker 1: Jim, you think that the threat of Canadian tariffs is 167 00:11:49,320 --> 00:11:54,520 Speaker 1: a ploy for negotiations? Is there any other reason why 168 00:11:54,559 --> 00:12:01,120 Speaker 1: Trump is specifically singling out Canada for special treatment, our 169 00:12:01,200 --> 00:12:04,000 Speaker 1: neighbor to the north and longtime ally. 170 00:12:04,559 --> 00:12:08,080 Speaker 3: Well, it's a great question why President Trump has chosen 171 00:12:08,160 --> 00:12:13,079 Speaker 3: to focus on allies rather than to focus on China 172 00:12:13,520 --> 00:12:18,120 Speaker 3: and China's growing influence in the world. But for whatever reason, 173 00:12:18,600 --> 00:12:22,960 Speaker 3: Canada has been a particular target. And even in the 174 00:12:23,040 --> 00:12:30,079 Speaker 3: USMCA negotiations, United States and Mexico have had better and 175 00:12:30,200 --> 00:12:34,320 Speaker 3: more productive discussions, and unfortunately the same has not been 176 00:12:34,440 --> 00:12:38,160 Speaker 3: the case with US and Canada. So I can't explain 177 00:12:38,240 --> 00:12:41,320 Speaker 3: why Canada is being singled out here. It is a 178 00:12:41,360 --> 00:12:46,320 Speaker 3: serious issue when you threaten tariffs of this nature on 179 00:12:46,960 --> 00:12:49,520 Speaker 3: not only a neighbor to the north, but obviously a 180 00:12:49,520 --> 00:12:52,720 Speaker 3: longstanding ally. So we'll just have to see how this 181 00:12:52,800 --> 00:12:55,480 Speaker 3: plays out, and hopefully it won't come to the point 182 00:12:55,520 --> 00:12:57,360 Speaker 3: where these tariffs are actually imposed. 183 00:12:57,640 --> 00:13:02,559 Speaker 1: Would tariffs on Canada violate the US Mexico Canada Agreement. 184 00:13:03,400 --> 00:13:06,840 Speaker 3: Canada would say yes that those tariffs would not be 185 00:13:07,040 --> 00:13:11,160 Speaker 3: justified and would be a violation of USMCA. So again, 186 00:13:11,320 --> 00:13:13,840 Speaker 3: we'll have to monitor whether or not these take place 187 00:13:14,280 --> 00:13:17,080 Speaker 3: and go into a fact or if some sort of 188 00:13:17,120 --> 00:13:20,800 Speaker 3: negotiation can resolve enough issues that this tariff threat can 189 00:13:20,840 --> 00:13:21,440 Speaker 3: be removed. 190 00:13:21,520 --> 00:13:24,280 Speaker 1: Stay with me, tim coming up next, will there be 191 00:13:24,400 --> 00:13:28,559 Speaker 1: tariffs on generic drugs? I'm June Grosso and you're listening 192 00:13:28,640 --> 00:13:35,040 Speaker 1: to Bloomberg. From the start of his second term, President 193 00:13:35,080 --> 00:13:38,719 Speaker 1: Donald Trump has made clear he'll put tariffs at the 194 00:13:38,720 --> 00:13:42,800 Speaker 1: center of US economic policy. I've been talking to trade 195 00:13:42,840 --> 00:13:47,040 Speaker 1: attorney Timothy Brightbill of Wileie Rhine. There are so many 196 00:13:47,080 --> 00:13:50,880 Speaker 1: tariffs and so many possible tariffs. So let's go to 197 00:13:51,360 --> 00:13:56,600 Speaker 1: tariff announcements on Brazil and generic drugs. Where does that stand? 198 00:13:56,920 --> 00:13:59,800 Speaker 3: Yes? So last week was another chaotic week in the 199 00:14:00,080 --> 00:14:02,280 Speaker 3: end of tariffs and trades. So in addition to the 200 00:14:02,360 --> 00:14:06,559 Speaker 3: forced labor tariffs on sixty economies, we had the conclusion 201 00:14:06,840 --> 00:14:11,280 Speaker 3: of another investigation that was focused only on Brazil and 202 00:14:11,360 --> 00:14:15,480 Speaker 3: that resulted in twenty five percent tariffs that were put 203 00:14:15,520 --> 00:14:18,600 Speaker 3: in place last week again under Section three HO one. 204 00:14:19,280 --> 00:14:24,680 Speaker 3: These were designed to address several unfair Brazilian trade practices, 205 00:14:24,880 --> 00:14:31,120 Speaker 3: according to the administration, including discriminatory digital trade rules, content 206 00:14:31,200 --> 00:14:36,240 Speaker 3: removal orders on US tech platforms, barriers in the ethanol market, 207 00:14:36,600 --> 00:14:41,600 Speaker 3: deforestation concerns, sort of a variety of unfair trade practices 208 00:14:41,640 --> 00:14:45,840 Speaker 3: from Brazil. So twenty five percent tariffs have been enacted, 209 00:14:46,080 --> 00:14:51,120 Speaker 3: but again there have been major exceptions for consumer goods 210 00:14:51,640 --> 00:14:55,720 Speaker 3: like coffee and orange juice, as well as major Brazilian 211 00:14:55,760 --> 00:15:01,600 Speaker 3: industries including aircraft and airplane parts. So I think there's 212 00:15:02,240 --> 00:15:05,800 Speaker 3: a balancing going on here with the Trump administration trying 213 00:15:05,920 --> 00:15:10,560 Speaker 3: to address unfair trade practices in Brazil and other countries, 214 00:15:10,960 --> 00:15:16,760 Speaker 3: but also very aware of affordability issues and not wanting 215 00:15:16,800 --> 00:15:20,760 Speaker 3: to cause problems for consumers who are buying consumer goods 216 00:15:20,840 --> 00:15:23,760 Speaker 3: or in grocery stores and so forth. So that investigation 217 00:15:24,120 --> 00:15:27,560 Speaker 3: wrapped up last week, and then there was an interesting 218 00:15:27,720 --> 00:15:32,320 Speaker 3: tariff threat. There has been an ongoing investigation of generic drugs, 219 00:15:33,080 --> 00:15:38,400 Speaker 3: and President Trump suggested that there would be tariffs imposed 220 00:15:38,800 --> 00:15:43,000 Speaker 3: of one hundred percent in one year on imports of 221 00:15:43,080 --> 00:15:46,840 Speaker 3: generic drugs, but that that would leave time for generic 222 00:15:46,880 --> 00:15:52,400 Speaker 3: drug manufacturers to build manufacturing here in the United States. Now, 223 00:15:52,400 --> 00:15:55,760 Speaker 3: that was just a social media post by the President. 224 00:15:56,440 --> 00:15:59,040 Speaker 3: To my knowledge, there hasn't been any follow up yet 225 00:15:59,160 --> 00:16:01,960 Speaker 3: or any White House announcements of details of how that 226 00:16:02,000 --> 00:16:07,320 Speaker 3: would work. But another sector to monitor because of concerns 227 00:16:07,400 --> 00:16:10,200 Speaker 3: that so many generic drugs are not made here in 228 00:16:10,240 --> 00:16:11,160 Speaker 3: the United States. 229 00:16:11,680 --> 00:16:14,600 Speaker 1: Well, it's Congress doing anything about the tariffs. 230 00:16:14,920 --> 00:16:17,360 Speaker 3: Congress is very concerned, and I think it's fair to 231 00:16:17,400 --> 00:16:21,720 Speaker 3: say there are bipartisan concerns. There have been a variety 232 00:16:22,120 --> 00:16:26,880 Speaker 3: of legislative proposals, not that these will pass this year, 233 00:16:27,200 --> 00:16:29,680 Speaker 3: but to sort of stake out ground in advance of 234 00:16:29,680 --> 00:16:34,600 Speaker 3: the midterm elections and ultimately the presidential elections. One significant 235 00:16:34,640 --> 00:16:40,080 Speaker 3: new legislative proposal is from Senator Ron Wyden of Oregon 236 00:16:40,640 --> 00:16:45,200 Speaker 3: that carries particular weight given his role as the ranking 237 00:16:45,240 --> 00:16:48,080 Speaker 3: member of the Senate Finance Committee, which deals with all 238 00:16:48,240 --> 00:16:51,800 Speaker 3: trade related legislation. So he has introduced something called the 239 00:16:51,800 --> 00:16:55,800 Speaker 3: Congressional Trade Powers Reform Act. This would require the President 240 00:16:55,960 --> 00:17:00,000 Speaker 3: to submit to Congress some of the proposed new tariffs, 241 00:17:00,080 --> 00:17:04,000 Speaker 3: for example, national security tariffs under Section two thirty two 242 00:17:04,960 --> 00:17:09,000 Speaker 3: or any new actions under Section three oh one, and 243 00:17:09,080 --> 00:17:13,480 Speaker 3: it would also repeal some of these very old trade authorities, 244 00:17:14,040 --> 00:17:18,160 Speaker 3: such as Section one twenty two and Section three thirty eight. 245 00:17:18,280 --> 00:17:20,639 Speaker 3: So for laws that have been on the books for 246 00:17:20,800 --> 00:17:23,560 Speaker 3: fifty years or more but have never really been used, 247 00:17:23,600 --> 00:17:27,359 Speaker 3: this legislation would simply say no, the president doesn't have 248 00:17:27,400 --> 00:17:28,520 Speaker 3: that authority anymore. 249 00:17:28,680 --> 00:17:33,360 Speaker 1: Congress has that Auford just broadly. Trump treats tariffs as 250 00:17:33,400 --> 00:17:37,960 Speaker 1: the be all and end all of economic policy. But 251 00:17:38,440 --> 00:17:42,679 Speaker 1: don't the tariffs worsen the concerns about affordability? The Yale 252 00:17:42,720 --> 00:17:46,639 Speaker 1: Budget Lab estimates that Trump's tariffs will increase costs for 253 00:17:46,680 --> 00:17:51,639 Speaker 1: the average US household by one one hundred dollars each year. 254 00:17:51,960 --> 00:17:55,240 Speaker 1: I mean, the US has lost seventy five thousand factory 255 00:17:55,440 --> 00:17:59,119 Speaker 1: jobs and he says it will boost US manufacturing. And 256 00:17:59,160 --> 00:18:03,000 Speaker 1: the tariffs didn't narrow the US trade deficit. It hit 257 00:18:03,080 --> 00:18:05,880 Speaker 1: record highs in twenty twenty five. I know he likes 258 00:18:05,920 --> 00:18:08,679 Speaker 1: to use them as a cudgel against other countries, but 259 00:18:09,080 --> 00:18:12,000 Speaker 1: for Americans, what are the benefits? 260 00:18:12,560 --> 00:18:15,520 Speaker 3: Sure? Well, this is the real question. And I do 261 00:18:15,640 --> 00:18:18,840 Speaker 3: think from my experience in more than twenty five years 262 00:18:18,840 --> 00:18:21,480 Speaker 3: as a trade lawyer, that there are ways to use 263 00:18:21,600 --> 00:18:28,879 Speaker 3: tariffs strategically to strengthen US industries and companies that have 264 00:18:29,000 --> 00:18:32,399 Speaker 3: been harmed by unfair trade. So there is a way 265 00:18:32,440 --> 00:18:36,919 Speaker 3: to do it. But the real question is what is 266 00:18:36,960 --> 00:18:39,440 Speaker 3: the benefit or harm of all of the chaos of 267 00:18:39,520 --> 00:18:43,399 Speaker 3: the last year and a half. And this comes down 268 00:18:43,480 --> 00:18:47,119 Speaker 3: to ultimately affordability, which will be the issue of the 269 00:18:47,160 --> 00:18:52,200 Speaker 3: midterm elections and most likely the presidential elections, and the 270 00:18:52,280 --> 00:18:56,520 Speaker 3: general public is going to decide to tariffs have any benefit? 271 00:18:57,000 --> 00:19:01,000 Speaker 3: Do we see any growth in jobs and manifaction industries? 272 00:19:01,040 --> 00:19:03,879 Speaker 3: In some cases you do. I have clients who have benefited, 273 00:19:04,000 --> 00:19:08,080 Speaker 3: But at the same time, is it increasing the costs 274 00:19:08,240 --> 00:19:11,520 Speaker 3: on consumer goods for most Americans? Again, it's going to 275 00:19:11,520 --> 00:19:15,320 Speaker 3: be the critical issue of the election, and I think 276 00:19:15,400 --> 00:19:19,040 Speaker 3: that's why the administration, even as it's announcing these things, 277 00:19:19,160 --> 00:19:22,639 Speaker 3: is trying to do them in a way that causes 278 00:19:22,840 --> 00:19:24,280 Speaker 3: as little harm as possible. 279 00:19:24,520 --> 00:19:28,159 Speaker 1: How are your clients dealing with the continued threats of 280 00:19:28,480 --> 00:19:32,320 Speaker 1: more and more tariffs and the uncertainty. Are they taking 281 00:19:32,359 --> 00:19:33,840 Speaker 1: any special steps? 282 00:19:34,800 --> 00:19:37,639 Speaker 3: Well, it's a real challenge for companies and industries that 283 00:19:37,680 --> 00:19:40,440 Speaker 3: are trying to run businesses. So again, some of them 284 00:19:40,880 --> 00:19:44,639 Speaker 3: are supportive of some of these terrif actions, particularly if 285 00:19:44,680 --> 00:19:49,879 Speaker 3: they face unfair trade from China and Chinese owned companies, 286 00:19:49,960 --> 00:19:54,040 Speaker 3: perhaps in Vietnam and Malaysia, but others. The chaos and 287 00:19:54,080 --> 00:20:00,119 Speaker 3: the unpredictability make it very difficult to invest, to hire workers, 288 00:20:00,359 --> 00:20:04,600 Speaker 3: to build global supply chains, and these challenges are not 289 00:20:04,760 --> 00:20:07,440 Speaker 3: going away. They don't seem to be calming down. If 290 00:20:07,520 --> 00:20:11,880 Speaker 3: last week was any indication, the chaos and the unpredictability 291 00:20:11,960 --> 00:20:15,440 Speaker 3: are unfortunately going to continue in that Again, it does 292 00:20:15,520 --> 00:20:19,040 Speaker 3: help some businesses in some industries, but it's very harmful 293 00:20:19,080 --> 00:20:20,040 Speaker 3: to many others. 294 00:20:20,560 --> 00:20:22,679 Speaker 1: Is there anything else we should be watching for? 295 00:20:22,840 --> 00:20:25,480 Speaker 3: Tim There are other things to keep an eye on. 296 00:20:25,880 --> 00:20:30,720 Speaker 3: We have additional potential tariffs in the near term, so 297 00:20:31,160 --> 00:20:36,359 Speaker 3: don't forget about the various national security tariff investigations under 298 00:20:36,400 --> 00:20:39,399 Speaker 3: Section two thirty two of the Trade Laws, many of 299 00:20:39,440 --> 00:20:43,359 Speaker 3: which investigations have been going on for almost a year. 300 00:20:43,560 --> 00:20:49,880 Speaker 3: So one action that we're monitoring closely relates to polysilicon 301 00:20:50,320 --> 00:20:54,800 Speaker 3: and solar products such as solar cells and solar panels. 302 00:20:55,160 --> 00:20:58,040 Speaker 3: That investigation should be coming to a close within the 303 00:20:58,080 --> 00:21:01,600 Speaker 3: next few weeks. It will be important to see how 304 00:21:01,640 --> 00:21:05,280 Speaker 3: the administration addresses this problem. This is one example where 305 00:21:05,320 --> 00:21:10,479 Speaker 3: we really have seen Chinese over capacity spread around the 306 00:21:10,480 --> 00:21:16,520 Speaker 3: world to countries like Vietnam and Malaysia and now even Ethiopia, 307 00:21:17,000 --> 00:21:21,199 Speaker 3: laws Indonesia and so forth. So we'll be monitoring that 308 00:21:21,280 --> 00:21:23,840 Speaker 3: in the next few weeks, and there are other investigations 309 00:21:23,840 --> 00:21:27,359 Speaker 3: going on. So we expect this to continue to be 310 00:21:27,880 --> 00:21:31,560 Speaker 3: a big issue for this president and this administration in 311 00:21:31,640 --> 00:21:32,840 Speaker 3: the weeks and months to come. 312 00:21:33,080 --> 00:21:36,760 Speaker 1: So we'll be talking again and again, Tim, thanks so much. 313 00:21:37,720 --> 00:21:41,280 Speaker 1: That's Timothy Bright Bill, a partner at Wilie Ryan. Coming 314 00:21:41,359 --> 00:21:44,960 Speaker 1: up next on The Bloomberg Lawn Show. Former FBI director 315 00:21:45,119 --> 00:21:49,640 Speaker 1: James Comy has been charged for threatening President Donald Trump 316 00:21:50,000 --> 00:21:53,760 Speaker 1: in a social media post which showed seashelles spelling out 317 00:21:53,800 --> 00:21:57,520 Speaker 1: the numbers eighty six forty seven. Comy is asking a 318 00:21:57,560 --> 00:22:01,240 Speaker 1: federal judge to dismiss the indict saying it was not 319 00:22:01,320 --> 00:22:06,040 Speaker 1: a call to violence against Trump, but rather protected political speech. 320 00:22:06,760 --> 00:22:11,399 Speaker 3: Welderbach, this time about a picture of seashells on a 321 00:22:11,440 --> 00:22:15,159 Speaker 3: North Carolina beach a year ago, and this won't be 322 00:22:15,240 --> 00:22:15,720 Speaker 3: the end of it. 323 00:22:16,040 --> 00:22:21,080 Speaker 1: The Trump administration indicted former FBI director James Comy for 324 00:22:21,200 --> 00:22:25,159 Speaker 1: the second time in April, this time charging him with 325 00:22:25,320 --> 00:22:29,560 Speaker 1: threatening President Donald Trump in a social media post which 326 00:22:29,600 --> 00:22:33,679 Speaker 1: showed seashells spelling out the number eighty six forty seven, 327 00:22:34,000 --> 00:22:34,720 Speaker 1: eighty six. 328 00:22:34,800 --> 00:22:37,760 Speaker 2: You know it's a mob term for kill them. 329 00:22:38,200 --> 00:22:41,919 Speaker 1: You know, you ever see the movies eighty six the 330 00:22:41,960 --> 00:22:45,440 Speaker 1: mobster says to one of his wonderful associates eighty six 331 00:22:45,960 --> 00:22:49,200 Speaker 1: that means kill him. In fact, the term eighty six 332 00:22:49,440 --> 00:22:53,080 Speaker 1: is widely understood to be a restaurant term meaning to 333 00:22:53,119 --> 00:22:59,000 Speaker 1: be out of something. And Comy's lawyers argue that dictionaries, context, precedent, 334 00:22:59,119 --> 00:23:02,159 Speaker 1: and common sense show it was not a call to 335 00:23:02,280 --> 00:23:07,119 Speaker 1: violence against Trump, but protected political speech. They're asking a 336 00:23:07,240 --> 00:23:11,360 Speaker 1: judge to dismiss the charges. My guest is first Amendment 337 00:23:11,440 --> 00:23:15,560 Speaker 1: expert Timothy Zick, a professor at William and Mary Law School. 338 00:23:15,960 --> 00:23:20,360 Speaker 1: Tim in his motion to dismiss Comy, makes several arguments, 339 00:23:20,400 --> 00:23:24,600 Speaker 1: sometimes alternative arguments. So start by telling us what a 340 00:23:24,720 --> 00:23:29,240 Speaker 1: true threat is and Comy's claim that the indictment doesn't 341 00:23:29,240 --> 00:23:31,480 Speaker 1: allege a true threat. 342 00:23:31,880 --> 00:23:34,400 Speaker 2: So the Supreme Court has defined a true threat as 343 00:23:34,440 --> 00:23:38,520 Speaker 2: a serious expression of an intent to commit an unlawful 344 00:23:38,560 --> 00:23:42,800 Speaker 2: act of violence against another person. In an addition, has 345 00:23:42,880 --> 00:23:47,280 Speaker 2: said that a reasonable objective observer would have to view 346 00:23:47,359 --> 00:23:50,680 Speaker 2: what was said or communicated as a threat of violence. 347 00:23:51,240 --> 00:23:53,280 Speaker 2: So one of the Prince of arguments, he is it 348 00:23:53,359 --> 00:23:56,880 Speaker 2: just doesn't meet the definition. The seashells arranged by somebody 349 00:23:56,920 --> 00:24:01,040 Speaker 2: else posted by Comy to social media does not constitute 350 00:24:01,280 --> 00:24:03,960 Speaker 2: expression of a serious intent to do bodily injury to 351 00:24:04,000 --> 00:24:04,560 Speaker 2: the president. 352 00:24:05,040 --> 00:24:08,440 Speaker 1: I mean, the indictment is so threadbare. There's no reference 353 00:24:08,520 --> 00:24:11,639 Speaker 1: to what evidence they presented to a grand jury to 354 00:24:11,760 --> 00:24:15,520 Speaker 1: make them return a true bill. Here they said that 355 00:24:15,880 --> 00:24:19,639 Speaker 1: posting a photograph which depicted seashells arranged in a pattern 356 00:24:19,680 --> 00:24:23,280 Speaker 1: making out eighty six forty seven, which a reasonable recipient 357 00:24:23,560 --> 00:24:27,640 Speaker 1: who's familiar with the circumstances would interpret as a serious 358 00:24:27,840 --> 00:24:31,000 Speaker 1: expression of an intent to do harm to President Trump. 359 00:24:31,200 --> 00:24:33,560 Speaker 1: Could it be that they didn't present anything else to 360 00:24:33,600 --> 00:24:34,359 Speaker 1: the grand jury. 361 00:24:34,920 --> 00:24:38,000 Speaker 2: It's possible that that's all they presented to the grand jury. 362 00:24:38,560 --> 00:24:42,160 Speaker 2: You probably know there been some shenanigans with federal prosecutors 363 00:24:42,160 --> 00:24:45,440 Speaker 2: and grand juries and other cases, including I think one 364 00:24:45,440 --> 00:24:48,679 Speaker 2: against Komy, another one against Comy. But any event of 365 00:24:48,680 --> 00:24:52,560 Speaker 2: the administration has done this in countless cases with regard to, 366 00:24:52,720 --> 00:24:57,240 Speaker 2: for example, protesters anti ice protesters who've been charged. There's 367 00:24:57,240 --> 00:25:00,000 Speaker 2: always a promise that there's more to come, there's more evidence, 368 00:25:00,000 --> 00:25:04,840 Speaker 2: and then courts offer the administration's attorneys, the DJA attorneys, 369 00:25:04,840 --> 00:25:07,240 Speaker 2: an opportunity to provide it, and they never do. So 370 00:25:07,680 --> 00:25:10,800 Speaker 2: I suspect there's not much more, if anymore to this 371 00:25:11,000 --> 00:25:14,760 Speaker 2: case than the seashells, the social media posts, and of 372 00:25:14,800 --> 00:25:18,359 Speaker 2: course you know the prior relationship between these two men, 373 00:25:18,520 --> 00:25:21,240 Speaker 2: but that really is a function of sort of political 374 00:25:21,320 --> 00:25:26,080 Speaker 2: difference or you know, Comey's actions as FBI director, and 375 00:25:26,560 --> 00:25:29,800 Speaker 2: that's all public record. So I just don't know what 376 00:25:29,880 --> 00:25:33,520 Speaker 2: else there could be. Context is important, that's true, but 377 00:25:33,960 --> 00:25:36,640 Speaker 2: it doesn't, you know, strike me that there's some smoking 378 00:25:36,720 --> 00:25:42,240 Speaker 2: gun here that shows that this was a serious expression 379 00:25:42,280 --> 00:25:45,840 Speaker 2: of an intent to harm the president. So, you know, 380 00:25:46,160 --> 00:25:49,240 Speaker 2: it seems to me, even by the Administration's you know, 381 00:25:49,440 --> 00:25:53,600 Speaker 2: very low bar standards in these sorts of prosecutions, an 382 00:25:53,600 --> 00:25:56,720 Speaker 2: extraordinarily weak case. I mean, you have precedents from the 383 00:25:56,760 --> 00:26:01,879 Speaker 2: Supreme Court that have turned away indictments and arrests for 384 00:26:02,600 --> 00:26:07,119 Speaker 2: statements that are far more a sort of violence intentive. 385 00:26:07,359 --> 00:26:10,160 Speaker 2: Then say, you know, the seashell So in wats versus 386 00:26:10,160 --> 00:26:13,960 Speaker 2: the United States during the Vietnam era, some young man says, well, 387 00:26:13,960 --> 00:26:15,679 Speaker 2: if they ever put a gun in my hand. The 388 00:26:15,760 --> 00:26:19,399 Speaker 2: first person I'm going to point it at is Lyndon 389 00:26:19,440 --> 00:26:23,200 Speaker 2: Bates Johnson. And in another case, a worker in an office, 390 00:26:23,240 --> 00:26:26,320 Speaker 2: a public employee says to a coworker, look, if they 391 00:26:26,320 --> 00:26:28,879 Speaker 2: ever go after Reagan again, I hope they get them. Now. 392 00:26:29,080 --> 00:26:32,520 Speaker 2: That's not nice to say, but it is clearly protected 393 00:26:32,600 --> 00:26:35,680 Speaker 2: political hyperbole under the Supreme Courts presidence, and I would 394 00:26:35,680 --> 00:26:38,560 Speaker 2: say under the Fourth Circuits precedence, which is where this 395 00:26:38,720 --> 00:26:41,120 Speaker 2: case is going to presumably end up if it does 396 00:26:41,160 --> 00:26:41,760 Speaker 2: get appealed. 397 00:26:42,080 --> 00:26:45,640 Speaker 1: There are T shirts and hats with the eighty six 398 00:26:45,800 --> 00:26:50,080 Speaker 1: forty six used during Biden's presidency. I mean, does that 399 00:26:50,280 --> 00:26:51,400 Speaker 1: come up anywhere? 400 00:26:52,280 --> 00:26:54,399 Speaker 2: I think that's part of the context, right, if you 401 00:26:54,440 --> 00:26:56,760 Speaker 2: think about the words that are used, or in this case, 402 00:26:56,800 --> 00:27:01,400 Speaker 2: the numbers that are used, as the defense lawyer point out, look, 403 00:27:01,440 --> 00:27:04,880 Speaker 2: they were used during Biden's presidency. Eighty six forty seven, 404 00:27:04,920 --> 00:27:08,760 Speaker 2: in fact, is all over T shirts and political billboards 405 00:27:09,200 --> 00:27:11,080 Speaker 2: and all the rest. And in fact, there's a recent 406 00:27:11,200 --> 00:27:14,359 Speaker 2: case out of the District of Columbia where there was 407 00:27:14,400 --> 00:27:17,679 Speaker 2: a sign up using those very same numbers, and a 408 00:27:17,760 --> 00:27:20,399 Speaker 2: court threw the case out on the grounds that it 409 00:27:20,440 --> 00:27:24,520 Speaker 2: could not possibly be interpreted as a true threat. So 410 00:27:25,080 --> 00:27:27,000 Speaker 2: I think the sort of stars are all aligned in 411 00:27:27,040 --> 00:27:30,000 Speaker 2: the same direction here, that this is a form of 412 00:27:30,280 --> 00:27:35,360 Speaker 2: if it's even that sort of hyperbolic or rhetorical political communication, 413 00:27:35,760 --> 00:27:37,960 Speaker 2: and nothing more. I think it is important if you 414 00:27:38,000 --> 00:27:42,000 Speaker 2: look at dictionary definitions and common understandings of what these 415 00:27:42,480 --> 00:27:45,960 Speaker 2: numbers mean when arranged in that way, that there's very thin, 416 00:27:46,040 --> 00:27:48,840 Speaker 2: if any evidence that they point to any kind of violence, 417 00:27:49,640 --> 00:27:52,199 Speaker 2: you know, get rid of or in the case of 418 00:27:52,200 --> 00:27:55,520 Speaker 2: a restaurant, there's no more of that's eighty six. And 419 00:27:55,600 --> 00:27:58,359 Speaker 2: so the sort of violent use of that set of 420 00:27:58,440 --> 00:28:03,080 Speaker 2: numbers is very rare, not reflecting in dictionaries, and the 421 00:28:03,119 --> 00:28:05,760 Speaker 2: whole thing just reeks of of course, more of the 422 00:28:05,800 --> 00:28:09,320 Speaker 2: same sort of retribution against the president's political enemies. And 423 00:28:09,359 --> 00:28:12,399 Speaker 2: he always says the quiet part out loud. He wanted 424 00:28:12,440 --> 00:28:17,160 Speaker 2: Pam Bondi to arrest Comy for something. There must be something. 425 00:28:17,840 --> 00:28:20,679 Speaker 2: And they finally found a prosecutor who was willing to 426 00:28:20,880 --> 00:28:23,320 Speaker 2: with a straight face present this to a grand jury. 427 00:28:23,320 --> 00:28:27,040 Speaker 2: And I think it's going to be another dismissal and 428 00:28:27,080 --> 00:28:30,120 Speaker 2: an embarrassment. But here's the thing about the Trump administration. 429 00:28:30,280 --> 00:28:33,359 Speaker 2: I don't think they're embarrassed. I think the point is 430 00:28:33,400 --> 00:28:37,720 Speaker 2: to put Tomy through the trouble of being charged, arrested, 431 00:28:37,880 --> 00:28:40,440 Speaker 2: having to plead in front of a judge, you know, 432 00:28:40,800 --> 00:28:43,080 Speaker 2: And that all happened to Trump, so it should happen 433 00:28:43,160 --> 00:28:45,040 Speaker 2: to all these political enemies, and that's what this is 434 00:28:45,040 --> 00:28:45,640 Speaker 2: really about. 435 00:28:46,360 --> 00:28:50,800 Speaker 1: Also, they argue that even if the alternative argument, so 436 00:28:50,960 --> 00:28:54,480 Speaker 1: even if this could be taken to suggest violence, it 437 00:28:54,520 --> 00:28:58,440 Speaker 1: would be political hyperbole and not a true threat. So 438 00:28:58,560 --> 00:29:02,040 Speaker 1: tell us about that argument meant in the context of 439 00:29:02,120 --> 00:29:07,560 Speaker 1: the Supreme Court affording political speech the highest standard of protection. 440 00:29:08,520 --> 00:29:12,680 Speaker 2: Yeah, I mean, it's obviously recognized a category of a 441 00:29:12,760 --> 00:29:15,720 Speaker 2: speech that can be criminalized, called a true threat. But 442 00:29:15,800 --> 00:29:19,200 Speaker 2: when you define that as a category, if you're the court, 443 00:29:19,280 --> 00:29:22,400 Speaker 2: you're very careful to make sure the definition does not 444 00:29:22,640 --> 00:29:26,800 Speaker 2: sweep in political opposition, even when it is sort of 445 00:29:26,880 --> 00:29:29,600 Speaker 2: couched in violent terms. So, even assuming you could read 446 00:29:29,680 --> 00:29:32,920 Speaker 2: violence into eighty six forty seven, as I said in 447 00:29:33,040 --> 00:29:35,920 Speaker 2: Watts and in other cases, the Court has said, well, 448 00:29:35,960 --> 00:29:39,160 Speaker 2: you have to be very careful not to allow the 449 00:29:39,200 --> 00:29:43,960 Speaker 2: government to criminalize opposition to political power, in this case 450 00:29:44,000 --> 00:29:46,280 Speaker 2: the president of the United States, and in those cases too, 451 00:29:46,600 --> 00:29:49,080 Speaker 2: and there are other cases of similar ilk right. So 452 00:29:49,120 --> 00:29:52,320 Speaker 2: there's a civil rights era case where a civil rights 453 00:29:52,400 --> 00:29:54,680 Speaker 2: leader stands up in front of people he wants to 454 00:29:54,720 --> 00:29:57,800 Speaker 2: participate in a boycott of white businesses in southern town 455 00:29:57,840 --> 00:30:00,400 Speaker 2: and he says, look, if you don't come along, there 456 00:30:00,440 --> 00:30:02,960 Speaker 2: may have to be some discipline and next may have 457 00:30:03,080 --> 00:30:05,680 Speaker 2: to be broken. And that was a civil case. But 458 00:30:05,720 --> 00:30:08,280 Speaker 2: the same question arose, well, is that a threat? Is 459 00:30:08,280 --> 00:30:10,640 Speaker 2: that a threat of violence? No, that's the kind of 460 00:30:10,720 --> 00:30:15,760 Speaker 2: strong political rhetoric the First Amendment protects. So even if, 461 00:30:15,840 --> 00:30:18,600 Speaker 2: as the defense points out, even if you could ring 462 00:30:18,720 --> 00:30:23,000 Speaker 2: some kind of violent imagery out of eighty six forty seven, 463 00:30:23,880 --> 00:30:27,280 Speaker 2: that is still protected speech. It is not a true threat. 464 00:30:27,760 --> 00:30:30,520 Speaker 2: And that is the sort of cost, if one wants 465 00:30:30,520 --> 00:30:32,040 Speaker 2: to look at it that way, of having such a 466 00:30:32,160 --> 00:30:36,280 Speaker 2: robust free speech right in the United States. You can, 467 00:30:36,800 --> 00:30:40,560 Speaker 2: and speakers often do make these sorts of communications, even 468 00:30:40,600 --> 00:30:42,600 Speaker 2: when they implicate, you know, sort of violence. 469 00:30:42,840 --> 00:30:46,600 Speaker 1: Also, you know, if this actually went to trial, the 470 00:30:46,640 --> 00:30:50,560 Speaker 1: prosecution would have to prove that Comy knowingly and willfully 471 00:30:51,280 --> 00:30:55,080 Speaker 1: made the threat. I mean Comy deleted the post and 472 00:30:55,240 --> 00:30:59,840 Speaker 1: said that he didn't realize that some people associate the 473 00:31:00,000 --> 00:31:04,000 Speaker 1: those numbers with violence. So for the prosecution to prove 474 00:31:04,040 --> 00:31:07,400 Speaker 1: he had intent seems like it would be a huge hurdle. 475 00:31:08,120 --> 00:31:10,520 Speaker 2: Yeah, that's not something you can resolve on the emotion 476 00:31:10,640 --> 00:31:13,040 Speaker 2: to dismiss, But the sort of mental state of the 477 00:31:13,080 --> 00:31:16,880 Speaker 2: speakers would be You're absolutely right critical if this thing 478 00:31:16,920 --> 00:31:19,920 Speaker 2: were to go to trial, whether or not Comy would testify, 479 00:31:20,000 --> 00:31:22,400 Speaker 2: I think is an interesting question if it goes that far. 480 00:31:23,080 --> 00:31:25,760 Speaker 2: But the statutes that he's been prosecuted under have mental 481 00:31:25,760 --> 00:31:29,200 Speaker 2: state requirements, as does the First Amendment. The First Amendment, 482 00:31:29,560 --> 00:31:32,160 Speaker 2: the court said in the case called counter mem versus Colorado, 483 00:31:32,640 --> 00:31:36,640 Speaker 2: requires that you show that the speaker acted recklessly a 484 00:31:36,680 --> 00:31:39,240 Speaker 2: former sort of subjective intent. But you knew there was 485 00:31:39,280 --> 00:31:42,120 Speaker 2: a danger here that someone would view this as a 486 00:31:42,120 --> 00:31:45,040 Speaker 2: threat of violence, and you spoke anyway. But I just 487 00:31:45,080 --> 00:31:48,240 Speaker 2: don't see how you get to you know, if Watts's 488 00:31:48,240 --> 00:31:52,400 Speaker 2: speech is protected and other statements about you know, actually 489 00:31:52,480 --> 00:31:55,520 Speaker 2: killing the president more directly or protected, how do you 490 00:31:55,560 --> 00:31:58,960 Speaker 2: get there with something like this and then Watts, for example, 491 00:31:58,960 --> 00:32:01,320 Speaker 2: the Vietnam Aery case. Part of the reason the court 492 00:32:01,360 --> 00:32:03,680 Speaker 2: said it's not a threat is it's so highly conditional. 493 00:32:03,920 --> 00:32:05,760 Speaker 2: Here's this young man, I think he was eighteen years old. 494 00:32:05,760 --> 00:32:08,200 Speaker 2: He's at a political rally, he makes this statement and 495 00:32:08,240 --> 00:32:11,560 Speaker 2: people laugh. But also there's really just no prospects that 496 00:32:11,760 --> 00:32:16,360 Speaker 2: violence would be visited on President Johnson. So too here. 497 00:32:16,720 --> 00:32:21,640 Speaker 1: We've heard violent rhetoric from President Trump repeatedly over the years. 498 00:32:22,200 --> 00:32:25,120 Speaker 1: But does that have any bearing at all on this case. 499 00:32:25,760 --> 00:32:28,360 Speaker 2: I don't think it does. You know, the question is 500 00:32:28,400 --> 00:32:32,120 Speaker 2: whether in this case the speaker Comy can be convicted 501 00:32:32,160 --> 00:32:35,080 Speaker 2: of the offenses he's been charged with. But I do 502 00:32:35,160 --> 00:32:37,520 Speaker 2: think in terms of you know, whether you want to 503 00:32:37,520 --> 00:32:41,120 Speaker 2: call it a slippery slope argument or just a fairness argument, 504 00:32:41,560 --> 00:32:44,600 Speaker 2: there's a lot of violent political rhetoric in the United States, 505 00:32:44,880 --> 00:32:46,920 Speaker 2: and again you could see that as the cost of 506 00:32:46,960 --> 00:32:51,239 Speaker 2: having this robust First Amendment. But the president himself has 507 00:32:51,280 --> 00:32:53,520 Speaker 2: engaged in a sort of speech. There are some on 508 00:32:53,560 --> 00:32:56,440 Speaker 2: the other side of the political aisle who used eighty six, 509 00:32:57,720 --> 00:33:01,000 Speaker 2: and they weren't prosecuted. Of course, god Blanche has said 510 00:33:01,040 --> 00:33:03,280 Speaker 2: the acting Attorney General, Look, we're not going to go 511 00:33:03,360 --> 00:33:06,080 Speaker 2: after everyone, then why are you going after Comy? 512 00:33:06,280 --> 00:33:06,400 Speaker 3: Right? 513 00:33:06,440 --> 00:33:08,400 Speaker 2: So I think it does matter that a lot of 514 00:33:08,440 --> 00:33:13,719 Speaker 2: political rhetoric circulates. It's long understood to be protected by 515 00:33:13,760 --> 00:33:17,480 Speaker 2: the First Amendment, and their questions as to why Comy's 516 00:33:17,520 --> 00:33:19,760 Speaker 2: being singled out. That's going to go, I think to 517 00:33:20,080 --> 00:33:22,600 Speaker 2: another motion which is going to be filed to dismiss 518 00:33:22,600 --> 00:33:25,880 Speaker 2: the case on the grounds of vindictive and selective prosecution, 519 00:33:26,440 --> 00:33:29,480 Speaker 2: and those raise different issues. That's not about the content 520 00:33:29,520 --> 00:33:32,160 Speaker 2: of his speech, that's about how and why he was 521 00:33:32,200 --> 00:33:36,240 Speaker 2: selected among all those who use similar language to be 522 00:33:36,360 --> 00:33:37,320 Speaker 2: criminally charged. 523 00:33:37,840 --> 00:33:41,560 Speaker 1: What standard will the judge use in deciding whether to 524 00:33:41,600 --> 00:33:42,560 Speaker 1: throw the case out. 525 00:33:42,880 --> 00:33:45,640 Speaker 2: Ordinarily those are hard cases to get thrown out on 526 00:33:45,720 --> 00:33:48,960 Speaker 2: a motion to dismiss, because, as you said, context matters. 527 00:33:49,440 --> 00:33:52,000 Speaker 2: Is there more to it? Do we need more fact finding? 528 00:33:52,520 --> 00:33:55,280 Speaker 2: And the intent or the mental state of the defendant 529 00:33:55,440 --> 00:33:58,360 Speaker 2: typically matters, and that's usually not something you can resolve 530 00:33:58,480 --> 00:34:02,400 Speaker 2: on motion papers dismiss. This may again be that rare 531 00:34:02,480 --> 00:34:05,080 Speaker 2: case where you can in fact throw it out, and 532 00:34:05,360 --> 00:34:08,240 Speaker 2: the defendants make the point that even trying him, putting 533 00:34:08,280 --> 00:34:12,080 Speaker 2: him through these paces is its own sanction for what's 534 00:34:12,120 --> 00:34:16,239 Speaker 2: clearly protected speech. My suspicion, my expectation, is that the 535 00:34:16,280 --> 00:34:19,120 Speaker 2: administration is going to say, or the Department's going to say, look, 536 00:34:19,239 --> 00:34:22,240 Speaker 2: we need factual development here, and discovery should take place, 537 00:34:22,280 --> 00:34:24,760 Speaker 2: and you shouldn't throw this out, you know, we promise 538 00:34:24,840 --> 00:34:27,600 Speaker 2: there's more to this, and they keep doing that. Now, 539 00:34:27,640 --> 00:34:31,640 Speaker 2: whether a judge has patience for that is another matter. 540 00:34:31,880 --> 00:34:34,080 Speaker 2: And then of course if it's dismissed, it'll immediately be 541 00:34:34,120 --> 00:34:38,439 Speaker 2: appealed and all of that. Right, So it is rare 542 00:34:38,520 --> 00:34:41,920 Speaker 2: to succeed on these sorts of motions. But one of 543 00:34:41,960 --> 00:34:44,960 Speaker 2: the things that makes it more plausible is just sort 544 00:34:44,960 --> 00:34:48,640 Speaker 2: of the extraneous statements of the President and the administration 545 00:34:48,800 --> 00:34:53,160 Speaker 2: and the Attorney General about Cami in particular, and you know, 546 00:34:53,160 --> 00:34:56,560 Speaker 2: Trump sort of telling his attorney general pursue these people 547 00:34:57,239 --> 00:35:00,319 Speaker 2: for something. Now, a court might not say, you know, 548 00:35:00,520 --> 00:35:03,400 Speaker 2: that's evidence in the case, but it just has to 549 00:35:03,480 --> 00:35:06,400 Speaker 2: have some impact on how you view cases like this. 550 00:35:06,520 --> 00:35:07,120 Speaker 2: I would think. 551 00:35:07,800 --> 00:35:12,920 Speaker 1: Also, the FBI has already investigated this, and it took 552 00:35:13,120 --> 00:35:15,440 Speaker 1: what close to a year for them to come up 553 00:35:15,560 --> 00:35:20,200 Speaker 1: with this indictment, So how much more information is there 554 00:35:20,239 --> 00:35:21,520 Speaker 1: out there to discover? 555 00:35:21,920 --> 00:35:24,759 Speaker 2: You know, ordinarily would have a period of discovery, And 556 00:35:25,040 --> 00:35:28,640 Speaker 2: again I'd be surprised if there's anything more to this. 557 00:35:29,239 --> 00:35:32,759 Speaker 2: You know, they did I think Seese, Comey's devices, his 558 00:35:32,880 --> 00:35:36,080 Speaker 2: phone and so forth. So it's you know possible he 559 00:35:36,120 --> 00:35:39,560 Speaker 2: made other derogatory statements about Trump, but joined the multi 560 00:35:39,600 --> 00:35:42,719 Speaker 2: million who've done that, that's not evidence of an intentive 561 00:35:42,840 --> 00:35:46,000 Speaker 2: threaten to murder him. So I'd just be very surprised 562 00:35:46,000 --> 00:35:49,600 Speaker 2: that this didn't just fizzle out like so many cases 563 00:35:49,719 --> 00:35:52,719 Speaker 2: have where they eventually dropped the charges. There's a recent one, 564 00:35:52,960 --> 00:35:55,840 Speaker 2: a sort of union leader out in California during an 565 00:35:55,840 --> 00:35:59,680 Speaker 2: antiis protest. He was arrested for allegedly this is a 566 00:35:59,680 --> 00:36:05,239 Speaker 2: common charge, interfering with ICE's activities and assaulting an officer. Well, 567 00:36:05,280 --> 00:36:07,600 Speaker 2: they just dropped it after months and months and months 568 00:36:07,600 --> 00:36:10,040 Speaker 2: and months. Of course, they now put this man through 569 00:36:10,080 --> 00:36:13,560 Speaker 2: not just an arrest and a physical assault, but all 570 00:36:13,560 --> 00:36:16,640 Speaker 2: the other things that come with being charged with a felony. 571 00:36:17,360 --> 00:36:21,160 Speaker 2: So if the pattern holds, this case will run that course, 572 00:36:21,680 --> 00:36:24,840 Speaker 2: and you know, again, the Trump administration and the Department 573 00:36:24,840 --> 00:36:27,760 Speaker 2: of Justice will simply move on to its next target 574 00:36:27,920 --> 00:36:29,880 Speaker 2: because what Trump wanted will have been done. 575 00:36:30,040 --> 00:36:33,680 Speaker 1: Comy got charged, and if the charges aren't dismissed at 576 00:36:33,680 --> 00:36:37,239 Speaker 1: this early stage, Comby will have to go through with 577 00:36:37,400 --> 00:36:41,680 Speaker 1: a trial that's now scheduled for October. So six months 578 00:36:41,719 --> 00:36:45,919 Speaker 1: of going through this whole process of being charged, pre 579 00:36:46,040 --> 00:36:50,480 Speaker 1: trial motions, discovery, and then trial, and you never know 580 00:36:50,560 --> 00:36:53,520 Speaker 1: what's going to happen at trial, so it's hanging over you. 581 00:36:53,960 --> 00:36:57,240 Speaker 2: It's entirely plausible, it's happened already that the trial jury 582 00:36:57,320 --> 00:37:00,120 Speaker 2: there is one will reject the government's case. But as 583 00:37:00,120 --> 00:37:03,480 Speaker 2: you point out right, there's a lot of process and 584 00:37:03,760 --> 00:37:06,840 Speaker 2: there's a lot of cost to these things. And Trump 585 00:37:06,880 --> 00:37:09,480 Speaker 2: has said out loud in the civil context, not the 586 00:37:09,480 --> 00:37:14,560 Speaker 2: criminal the point is to make them pay, meaning to 587 00:37:14,640 --> 00:37:19,000 Speaker 2: make them suffer the financial consequences of being sued. He 588 00:37:19,040 --> 00:37:23,720 Speaker 2: doesn't care if he wins. The punishment is the suit 589 00:37:24,320 --> 00:37:30,279 Speaker 2: or the investigation. So that is wildly inappropriate, improper, a 590 00:37:30,360 --> 00:37:33,640 Speaker 2: violation of due process, and in these cases, a violation 591 00:37:33,840 --> 00:37:34,880 Speaker 2: of the First Amendment. 592 00:37:35,239 --> 00:37:38,560 Speaker 1: I'm really interested in seeing what the government will come 593 00:37:38,680 --> 00:37:42,719 Speaker 1: up with in its response papers. It's been great having 594 00:37:42,800 --> 00:37:46,239 Speaker 1: you on, Tim, Thanks so much. That's Professor Timothy Zick 595 00:37:46,440 --> 00:37:49,400 Speaker 1: of William and Mary Law School. And that's it for 596 00:37:49,440 --> 00:37:52,080 Speaker 1: this edition of the Bloomberg Law Show. Remember you can 597 00:37:52,120 --> 00:37:55,360 Speaker 1: always get the latest legal news on our Bloomberg Law Podcast. 598 00:37:55,640 --> 00:37:58,640 Speaker 1: You can find them on Apple Podcasts, Spotify, and at 599 00:37:58,800 --> 00:38:03,840 Speaker 1: wwwdi dot Bloomberg dot com. Slash podcast Slash Law, and 600 00:38:03,920 --> 00:38:07,000 Speaker 1: remember to tune into The Bloomberg Law Show every weeknight 601 00:38:07,080 --> 00:38:10,520 Speaker 1: at ten pm Wall Street Time. I'm June Grosso and 602 00:38:10,560 --> 00:38:12,000 Speaker 1: you're listening to Bloomberg