1 00:00:00,480 --> 00:00:05,680 Speaker 1: You're listening to Bloomberg Law with June Grosso from Bloomberg Radio. 2 00:00:06,559 --> 00:00:10,840 Speaker 1: A seventy thousand dollar deduction for haircuts, twenty six million 3 00:00:10,880 --> 00:00:14,480 Speaker 1: dollars and consulting fee right offs, a family estate that 4 00:00:14,680 --> 00:00:18,600 Speaker 1: generated a twenty one million dollar charitable deduction, and an 5 00:00:18,600 --> 00:00:21,479 Speaker 1: i r S challenge to a seventy two million dollar 6 00:00:21,560 --> 00:00:24,760 Speaker 1: refund claim. Those are just some of the revelations from 7 00:00:24,760 --> 00:00:28,280 Speaker 1: a New York Times analysis of President Trump's tax returns, 8 00:00:28,680 --> 00:00:31,880 Speaker 1: But at the first presidential debate, Trump denied the Times 9 00:00:31,880 --> 00:00:34,879 Speaker 1: report that he only paid seven hundred fifty dollars in 10 00:00:34,960 --> 00:00:39,519 Speaker 1: federal income taxes in both twenty sixteen and seventeen. Is 11 00:00:39,520 --> 00:00:42,199 Speaker 1: it true that you paid seven hundred fifty dollars in 12 00:00:42,360 --> 00:00:46,040 Speaker 1: federal income taxes each of those two years. I've paid 13 00:00:46,120 --> 00:00:51,239 Speaker 1: millions of dollars in taxes, millions of dollars of income tax. However, 14 00:00:51,280 --> 00:00:55,640 Speaker 1: in a seemingly contradictory explanation, Trump then spelled out how 15 00:00:55,680 --> 00:00:59,400 Speaker 1: he has exploited depreciation tax credits and other provisions of 16 00:00:59,400 --> 00:01:02,680 Speaker 1: the tax code to reduce his personal tax bill. It 17 00:01:02,760 --> 00:01:05,080 Speaker 1: was the tax laws. I don't want to pay tax. 18 00:01:05,520 --> 00:01:08,440 Speaker 1: Before I came here, I was a private developer. I 19 00:01:08,480 --> 00:01:11,600 Speaker 1: was a private business. People, like every other private person, 20 00:01:11,640 --> 00:01:15,000 Speaker 1: unless they're stupid, they go through the laws, and that's 21 00:01:15,040 --> 00:01:18,039 Speaker 1: what it is. My guest is Michael Grats, a professor 22 00:01:18,040 --> 00:01:20,640 Speaker 1: at Columbia Law School. He's the author of the new 23 00:01:20,680 --> 00:01:23,600 Speaker 1: book The Wolf at the Door, The Menace of Economic 24 00:01:23,640 --> 00:01:26,760 Speaker 1: Insecurity and How to Fight It. Can we tell whether 25 00:01:26,840 --> 00:01:31,000 Speaker 1: President Trump is a billionaire from the information in the 26 00:01:31,000 --> 00:01:33,560 Speaker 1: New York Times? Well, I think it's very hard to 27 00:01:33,600 --> 00:01:37,520 Speaker 1: know what his assets are from the tax return information 28 00:01:37,760 --> 00:01:40,560 Speaker 1: we've been given. You know, it's often very hard to 29 00:01:40,600 --> 00:01:44,160 Speaker 1: tell what someone's worth is from an income tax return, 30 00:01:44,480 --> 00:01:47,960 Speaker 1: and in his case, it's even more difficult because there 31 00:01:47,960 --> 00:01:52,200 Speaker 1: are so many losses that have been claimed and it's 32 00:01:52,200 --> 00:01:56,240 Speaker 1: not clear whether these are real economic losses or whether 33 00:01:56,280 --> 00:02:00,800 Speaker 1: they're just tax deductions and losses. During the eight Trump 34 00:02:00,880 --> 00:02:04,240 Speaker 1: said that as a private real estate developer, he took 35 00:02:04,240 --> 00:02:09,240 Speaker 1: advantage of what he called privileges. Explain those for us, Well, 36 00:02:09,520 --> 00:02:12,840 Speaker 1: real estate developers have a number of advantages in the 37 00:02:12,880 --> 00:02:16,359 Speaker 1: tax law. They get to take deductions even when someone 38 00:02:16,440 --> 00:02:20,600 Speaker 1: else has financed the real estate, and so a lot 39 00:02:20,680 --> 00:02:24,560 Speaker 1: of the deductions and losses that Donald Trump seems to 40 00:02:24,600 --> 00:02:29,919 Speaker 1: be claiming our financed through borrowing, and the law permits that. 41 00:02:30,360 --> 00:02:32,200 Speaker 1: Although I have to say there are a number of 42 00:02:32,360 --> 00:02:35,280 Speaker 1: issues that were raised by The New York Times that 43 00:02:35,360 --> 00:02:37,639 Speaker 1: seemed to me to be quite questionable and go well 44 00:02:37,680 --> 00:02:42,440 Speaker 1: beyond the normal issues involving real estate. Are you referring 45 00:02:42,440 --> 00:02:46,680 Speaker 1: to his personal expenses that were written off as business deductions? 46 00:02:46,720 --> 00:02:49,679 Speaker 1: There are a number of issues about whether deductions he's 47 00:02:49,760 --> 00:02:53,679 Speaker 1: taking for business are really business deductions or whether they're 48 00:02:53,720 --> 00:02:57,840 Speaker 1: non deductible personal expenses. There's a long list of those. 49 00:02:57,880 --> 00:03:02,200 Speaker 1: They include the haircuts were sure typically not allowable. If 50 00:03:02,240 --> 00:03:03,800 Speaker 1: you're a soldier and you have to get your hair 51 00:03:03,880 --> 00:03:06,680 Speaker 1: cut every two weeks, you don't get a deduct your haircuts. 52 00:03:06,720 --> 00:03:10,160 Speaker 1: Their cases on this, and there's a case involving an entertainer. 53 00:03:10,440 --> 00:03:13,160 Speaker 1: But there are also issues involving what he's treating as 54 00:03:13,240 --> 00:03:17,200 Speaker 1: business and what he's treating as personal. With the Seven Springs, 55 00:03:17,200 --> 00:03:20,120 Speaker 1: a state which seems to be a family a retreat, 56 00:03:20,160 --> 00:03:24,040 Speaker 1: according at least to other family members. The allocation of 57 00:03:24,360 --> 00:03:28,320 Speaker 1: expenses in mar Lago, which he's claiming our business but 58 00:03:28,480 --> 00:03:32,400 Speaker 1: it's also his personal residence, raised questions, and there are 59 00:03:32,440 --> 00:03:37,000 Speaker 1: others and Seven Springs generated at twenty one point one 60 00:03:37,040 --> 00:03:40,880 Speaker 1: million dollar charitable deduction for Trump because, as you say, 61 00:03:40,960 --> 00:03:43,840 Speaker 1: he treated it as an investment property. Well as I 62 00:03:43,960 --> 00:03:47,720 Speaker 1: understand it, most of his charitable deductions, almost all of 63 00:03:47,760 --> 00:03:55,119 Speaker 1: his charitable deductions were conservation easements that were allowed on 64 00:03:55,280 --> 00:04:01,080 Speaker 1: his real estate holdings, including Seven Springs, and concervation easements 65 00:04:01,240 --> 00:04:03,720 Speaker 1: haven't been identified by the i r S as one 66 00:04:03,720 --> 00:04:07,520 Speaker 1: of the most abusive types of charitable donations. What you're 67 00:04:07,560 --> 00:04:12,000 Speaker 1: doing is you're promising either access. I know that from 68 00:04:12,080 --> 00:04:15,520 Speaker 1: earlier reports he seems to have allowed people to walk 69 00:04:15,560 --> 00:04:19,040 Speaker 1: around hunt on but around the golf courses and taken 70 00:04:19,200 --> 00:04:23,000 Speaker 1: deductions for that. You know, he obviously has some conservation 71 00:04:23,120 --> 00:04:27,160 Speaker 1: easement involving Seven Springs, although we don't know what it is. 72 00:04:27,279 --> 00:04:30,160 Speaker 1: It may be, you know, to keep a bird habitat, 73 00:04:30,320 --> 00:04:33,520 Speaker 1: or to clean water on the property, things that he 74 00:04:33,600 --> 00:04:37,240 Speaker 1: might do anyway. And there's always a question about the 75 00:04:37,320 --> 00:04:41,520 Speaker 1: valuation of these easements. Of the value is supposed to 76 00:04:41,520 --> 00:04:45,200 Speaker 1: be the loss in the value of the property. That is, 77 00:04:45,240 --> 00:04:48,839 Speaker 1: you compare the value of the property without the easement 78 00:04:49,000 --> 00:04:51,560 Speaker 1: and the value of the property with the easement, and 79 00:04:51,600 --> 00:04:54,719 Speaker 1: you get a deduction for the difference. But It's quite 80 00:04:54,760 --> 00:04:58,840 Speaker 1: common for high income people who have real estate and 81 00:04:58,920 --> 00:05:04,480 Speaker 1: want to get a charitable deduction to overvalue their conservation eastments. 82 00:05:04,560 --> 00:05:09,120 Speaker 1: This is something IRUs has long identified as often abusive, 83 00:05:09,520 --> 00:05:12,080 Speaker 1: and of course we don't have enough information to know, 84 00:05:12,480 --> 00:05:14,839 Speaker 1: but it's pretty clear that Donald Trump has been quite 85 00:05:14,839 --> 00:05:18,839 Speaker 1: aggressive in trying to reduce his taxes, and virtually all 86 00:05:19,480 --> 00:05:23,200 Speaker 1: of his charitable deductions, probably all other than the ones 87 00:05:23,279 --> 00:05:27,640 Speaker 1: he gave to the Trump Foundation, seemed to be conservation easements. 88 00:05:28,320 --> 00:05:31,960 Speaker 1: The Times reports about seven d fifty thousand dollars in 89 00:05:32,040 --> 00:05:35,680 Speaker 1: consulting fee right off to his daughter, Ivanka Trump. So 90 00:05:35,720 --> 00:05:38,360 Speaker 1: what about putting his daughter on the payroll and then 91 00:05:38,440 --> 00:05:43,080 Speaker 1: writing off consulting fees. That's another red flag I think 92 00:05:43,160 --> 00:05:46,800 Speaker 1: for tax auditors. And she was, as I understand it, 93 00:05:46,800 --> 00:05:50,719 Speaker 1: an employee of the Trump organization, but nevertheless there is 94 00:05:50,839 --> 00:05:53,960 Speaker 1: an additional payment to her other than her salary as 95 00:05:54,000 --> 00:05:59,039 Speaker 1: a consultant. You know, you're allowed to deduct payments for 96 00:05:59,160 --> 00:06:03,160 Speaker 1: services ordered, even if they're rendered by a family member, 97 00:06:03,240 --> 00:06:06,799 Speaker 1: but those services have to be at fair value, fair 98 00:06:06,960 --> 00:06:09,520 Speaker 1: arm's length value what you could pay to somebody who's 99 00:06:09,560 --> 00:06:12,360 Speaker 1: not a family member, and it may be a way 100 00:06:12,400 --> 00:06:16,039 Speaker 1: to transfer property to his daughter free of a state 101 00:06:16,120 --> 00:06:21,159 Speaker 1: tax or gift tax um and to get a tax deduction. 102 00:06:22,200 --> 00:06:26,039 Speaker 1: It would be interesting to know whether you know what 103 00:06:26,160 --> 00:06:30,719 Speaker 1: her what her income tax returns show with regard to 104 00:06:30,800 --> 00:06:36,680 Speaker 1: this and her employment tax returns or self employment tax returns. 105 00:06:36,880 --> 00:06:39,839 Speaker 1: We just don't know. But it certainly raises red flags, 106 00:06:40,680 --> 00:06:42,880 Speaker 1: red flags for the I R S. But are any 107 00:06:43,040 --> 00:06:47,320 Speaker 1: of these deductions or the way he is using the 108 00:06:47,400 --> 00:06:51,440 Speaker 1: tax code? Are criminal penalties possible in any of those cases? 109 00:06:51,880 --> 00:06:57,479 Speaker 1: I mean, criminal cases are very fact intensive proceedings. You 110 00:06:57,600 --> 00:07:00,880 Speaker 1: have to prove that the person knew what the tax 111 00:07:00,960 --> 00:07:05,240 Speaker 1: law was and willfully didn't follow it. Now, you know, 112 00:07:05,240 --> 00:07:09,640 Speaker 1: if he's got a home a family retreat and he's 113 00:07:09,800 --> 00:07:12,560 Speaker 1: treating it as if it's some business and there's no 114 00:07:12,640 --> 00:07:17,760 Speaker 1: income associated with it, it certainly raises questions about whether 115 00:07:17,920 --> 00:07:21,080 Speaker 1: what his intent was and what he knew about what 116 00:07:21,120 --> 00:07:25,480 Speaker 1: he was doing. UM. But some of it is probably 117 00:07:26,200 --> 00:07:29,960 Speaker 1: not criminal. It's it's just aggressive. And if the I 118 00:07:30,120 --> 00:07:36,360 Speaker 1: R S is auditing his returns as they should be, UM, 119 00:07:36,400 --> 00:07:40,800 Speaker 1: some of these deductions will almost certainly be disallowed. My 120 00:07:40,840 --> 00:07:45,000 Speaker 1: accountant did it defense? Does that defense work in these cases? 121 00:07:45,440 --> 00:07:49,440 Speaker 1: You know, as I say, it's not a get out 122 00:07:49,440 --> 00:07:53,360 Speaker 1: of jail free card. It's it depends on what the 123 00:07:53,400 --> 00:08:02,520 Speaker 1: taxpayer new and whether the taxpayer intentionally violated the law. 124 00:08:03,480 --> 00:08:07,400 Speaker 1: And it's very hard to prove, especially if you have 125 00:08:08,320 --> 00:08:12,200 Speaker 1: a letter or advice from an accountant or an attorney 126 00:08:12,200 --> 00:08:16,280 Speaker 1: who knows all the facts. Um, it's very hard to 127 00:08:17,440 --> 00:08:22,119 Speaker 1: bring a criminal case in these circumstances. It's almost always inappropriate. 128 00:08:22,240 --> 00:08:27,320 Speaker 1: But but a lot of times criminal tax cases turn 129 00:08:27,440 --> 00:08:35,440 Speaker 1: on situations where the client new facts and didn't quite 130 00:08:35,440 --> 00:08:39,360 Speaker 1: tell the accountant or the lawyer all of the facts 131 00:08:40,559 --> 00:08:43,120 Speaker 1: as they were. And you know, we just don't know 132 00:08:43,320 --> 00:08:47,280 Speaker 1: enough to know anything about what was going on between 133 00:08:47,559 --> 00:08:51,720 Speaker 1: Donald Trump and his accountants and lawyers. The I R. 134 00:08:51,880 --> 00:08:55,520 Speaker 1: S is challenging a seventy two point nine million dollar 135 00:08:55,640 --> 00:08:59,960 Speaker 1: refund that Trump claimed a decade ago. First of all, 136 00:09:00,160 --> 00:09:02,160 Speaker 1: why would it take ten years to come to a 137 00:09:02,200 --> 00:09:08,000 Speaker 1: resolution of this, Well, the facts may be complicated. UM. 138 00:09:08,400 --> 00:09:12,600 Speaker 1: I suspect that this, I mean, at least based on 139 00:09:12,640 --> 00:09:17,120 Speaker 1: the news reports, this seems to be the abandonment a 140 00:09:17,200 --> 00:09:24,000 Speaker 1: loss attributable to the abandonment of a casino in Atlantic City. Um, 141 00:09:24,040 --> 00:09:27,880 Speaker 1: if you abandon the property and you get nothing in return, 142 00:09:29,559 --> 00:09:34,240 Speaker 1: then that may be deductible that loss. But if you 143 00:09:35,240 --> 00:09:40,720 Speaker 1: h do get something of value and return or you 144 00:09:40,920 --> 00:09:44,760 Speaker 1: keep something of value um and here there are at 145 00:09:44,840 --> 00:09:48,680 Speaker 1: least suggestions that he may have had stock that was 146 00:09:48,760 --> 00:09:54,160 Speaker 1: retained in the company, then you're not entitled to that loss. 147 00:09:55,760 --> 00:09:58,640 Speaker 1: And so there may be there may be complicated facts. 148 00:09:58,640 --> 00:10:03,800 Speaker 1: There may also be issues of the cancelation of debt 149 00:10:04,000 --> 00:10:08,000 Speaker 1: on that property. As I understand it, he had very 150 00:10:08,120 --> 00:10:12,239 Speaker 1: large debts that were never paid back on that property. 151 00:10:12,280 --> 00:10:18,680 Speaker 1: And usually if you cancel a debt, that's taxable income 152 00:10:19,040 --> 00:10:25,920 Speaker 1: to you. We've seen many families suffer taxes when their 153 00:10:25,960 --> 00:10:31,200 Speaker 1: house is foreclosed, and students who are unable to pay 154 00:10:31,240 --> 00:10:37,040 Speaker 1: their loans but are not bankrupt tend to tend to 155 00:10:37,080 --> 00:10:41,960 Speaker 1: have to pay taxes when that debt is forgiven. And 156 00:10:42,000 --> 00:10:45,640 Speaker 1: so I'm guessing it's just a guess, but I'm guessing 157 00:10:45,679 --> 00:10:49,839 Speaker 1: that there issues about whether there was a true abandonment 158 00:10:50,720 --> 00:10:54,920 Speaker 1: and issues about the treatment of the dat. Whether he's 159 00:10:54,960 --> 00:11:00,440 Speaker 1: taking a loss for the lenders, the lenders suffer loss, 160 00:11:01,240 --> 00:11:05,040 Speaker 1: and whether Trump is taking a tax loss that really 161 00:11:05,080 --> 00:11:09,959 Speaker 1: properly belongs to the lender may be an issue. So 162 00:11:10,440 --> 00:11:13,440 Speaker 1: it's may be a complicated set of issues. We don't 163 00:11:13,440 --> 00:11:17,960 Speaker 1: know enough about it to opine, but tax audits often 164 00:11:18,000 --> 00:11:22,080 Speaker 1: take a long time. And as we've seen, Donald Trump 165 00:11:23,120 --> 00:11:27,120 Speaker 1: is perfectly willing, as we've seen with the subpoena case 166 00:11:27,880 --> 00:11:31,640 Speaker 1: over his tax records, He's perfectly willing to go into 167 00:11:31,679 --> 00:11:38,439 Speaker 1: court and delay. Uh and and probably and administrative procedure 168 00:11:38,760 --> 00:11:41,719 Speaker 1: or the I R S make it very difficult for 169 00:11:41,800 --> 00:11:44,000 Speaker 1: the I R s to to get all the facts, 170 00:11:44,960 --> 00:11:49,600 Speaker 1: and um, you know so, so it's not shocking that 171 00:11:49,720 --> 00:11:53,120 Speaker 1: it's taken this long. I suspect that when he became 172 00:11:53,160 --> 00:11:57,360 Speaker 1: president of the United States that slowed that thought it down. 173 00:11:58,280 --> 00:12:02,520 Speaker 1: And that's been nearly four year years now, so it 174 00:12:02,600 --> 00:12:05,440 Speaker 1: was pending. It was obviously pending when he became president. 175 00:12:06,400 --> 00:12:08,640 Speaker 1: And I'd be surprised if the I R S wants 176 00:12:08,679 --> 00:12:12,400 Speaker 1: to levy a large tax on their boss at the 177 00:12:12,440 --> 00:12:15,920 Speaker 1: moment what stood out to you most or what shocked 178 00:12:15,960 --> 00:12:19,120 Speaker 1: you most, if anything at the time story is accurate, 179 00:12:19,200 --> 00:12:22,440 Speaker 1: and it seems quite likely to be accurate. They seem 180 00:12:22,520 --> 00:12:25,600 Speaker 1: to have the information they claimed to have. There is 181 00:12:25,920 --> 00:12:30,839 Speaker 1: evidence of an unusually aggressive set of tax positions that 182 00:12:30,880 --> 00:12:34,800 Speaker 1: have been taken, particularly on the line between what's business 183 00:12:34,880 --> 00:12:39,720 Speaker 1: and what's personal, whether it's the payment to Avanka, seven Springs, 184 00:12:40,040 --> 00:12:45,400 Speaker 1: mar Lago or haircuts, all of those fit into that category. UM. 185 00:12:45,440 --> 00:12:49,600 Speaker 1: Conservation easements that we've talked about are also in in 186 00:12:49,720 --> 00:12:55,520 Speaker 1: that category UM and so UM. You know, it seems 187 00:12:55,520 --> 00:13:01,040 Speaker 1: to be a person who perhaps not surprisingly, is exceptionally 188 00:13:01,080 --> 00:13:07,640 Speaker 1: aggressive in his tax reporting. It looks to me like 189 00:13:07,760 --> 00:13:11,560 Speaker 1: he treats his tax returns as an opening bid um 190 00:13:11,640 --> 00:13:14,720 Speaker 1: and the i R S then has to come challenge 191 00:13:15,679 --> 00:13:22,599 Speaker 1: anything that is at all dubious or suspect in those returns. 192 00:13:22,640 --> 00:13:28,160 Speaker 1: And not everyone who files the tax return behaves that way. 193 00:13:28,240 --> 00:13:33,000 Speaker 1: Many people, including many wealthy people, try and figure out 194 00:13:33,080 --> 00:13:38,120 Speaker 1: what they owe the government, pay their taxes and and 195 00:13:38,360 --> 00:13:42,960 Speaker 1: and do not relish the prospect of i R s audit. 196 00:13:44,040 --> 00:13:46,360 Speaker 1: I guess the other thing that we haven't talked about 197 00:13:47,679 --> 00:13:52,800 Speaker 1: that worried me just as a citizen, is that there 198 00:13:53,679 --> 00:13:58,960 Speaker 1: seem to be large payments on his taxes and relationships 199 00:14:00,120 --> 00:14:06,320 Speaker 1: with both the Philippine and the Turkish governments. And given 200 00:14:07,080 --> 00:14:14,599 Speaker 1: the behavior that Trump has exhibited towards those two countries 201 00:14:14,679 --> 00:14:20,960 Speaker 1: and their strong men leaders brutal leaders in some cases, 202 00:14:22,240 --> 00:14:29,040 Speaker 1: one does have to wonder whether those financial relationships are 203 00:14:29,160 --> 00:14:35,920 Speaker 1: having some undue influence on the foreign policy of the 204 00:14:36,040 --> 00:14:40,120 Speaker 1: United States, whether it's in Syria or whether it has 205 00:14:40,160 --> 00:14:43,160 Speaker 1: to do with human rights abuses in the Philippines. That's 206 00:14:43,200 --> 00:14:46,520 Speaker 1: Michael Grat's of Columbia Law School his new book, The 207 00:14:46,600 --> 00:14:49,800 Speaker 1: Wolf of the Door, The Menace of Economic Insecurity and 208 00:14:49,840 --> 00:14:54,760 Speaker 1: How to Fight It. After an unusual Sunday morning hearing, 209 00:14:55,200 --> 00:14:59,920 Speaker 1: a federal judge has temporarily blocked President Trump's ban on TikTok, 210 00:15:00,320 --> 00:15:02,800 Speaker 1: stealing a glow to the government and it's showdown with 211 00:15:02,920 --> 00:15:07,120 Speaker 1: the popular Chinese owned app that it says threatens national security. 212 00:15:07,640 --> 00:15:10,600 Speaker 1: Joining me is Jim Dempsey, executive director of the Berkeley 213 00:15:10,640 --> 00:15:14,600 Speaker 1: Center for Law and Technology, stop by explaining what the 214 00:15:14,720 --> 00:15:18,480 Speaker 1: band by Trump would have done if the judge hadn't 215 00:15:19,000 --> 00:15:23,520 Speaker 1: blocked it. So it was a two phase of band 216 00:15:24,040 --> 00:15:29,240 Speaker 1: by the President directed against TikTok. The first half of it, 217 00:15:29,840 --> 00:15:36,000 Speaker 1: which was due to be effective yesterday Sunday, September, would 218 00:15:36,040 --> 00:15:40,880 Speaker 1: have basically prohibited any downloads, any new downloads of the 219 00:15:40,920 --> 00:15:46,640 Speaker 1: TikTok app, or any updates to already downloaded versions of 220 00:15:46,680 --> 00:15:50,600 Speaker 1: the app, So it would have knocked TikTok off of 221 00:15:50,680 --> 00:15:55,880 Speaker 1: the app stores of Google and Apple. The second half 222 00:15:55,880 --> 00:16:00,880 Speaker 1: of the order, intended to be effective November twelve, would 223 00:16:00,880 --> 00:16:08,320 Speaker 1: have basically effectively ended the functioning of the existing downloads 224 00:16:08,360 --> 00:16:14,120 Speaker 1: by prohibiting any Internet hosting or any provision of content 225 00:16:14,200 --> 00:16:20,320 Speaker 1: Delivery Network cd N of services which are basically essential 226 00:16:20,400 --> 00:16:23,960 Speaker 1: to enabled the functioning of any of any mobile app 227 00:16:24,400 --> 00:16:28,440 Speaker 1: So two phases one known new downloads supposed to be 228 00:16:28,440 --> 00:16:33,520 Speaker 1: taking effect less night blocked by the judge. Further restrictions 229 00:16:33,600 --> 00:16:37,880 Speaker 1: November twelve left untouched so far by the judge. What 230 00:16:37,960 --> 00:16:40,480 Speaker 1: were the arguments to the judge of TikTok and the 231 00:16:40,560 --> 00:16:48,360 Speaker 1: Trump administration. Well, Ticktock raised a variety of arguments um 232 00:16:48,360 --> 00:16:54,000 Speaker 1: starting with the fact that the statute relied upon by 233 00:16:54,160 --> 00:17:03,440 Speaker 1: President Trump, the International Economic Emergency Power Act, or that statute, 234 00:17:03,520 --> 00:17:07,200 Speaker 1: gives the President very broad powers to block any kind 235 00:17:07,400 --> 00:17:12,560 Speaker 1: of transaction involving any foreign person or any foreign entity 236 00:17:12,640 --> 00:17:18,320 Speaker 1: or any foreign government. But it has an exception. It 237 00:17:18,520 --> 00:17:22,719 Speaker 1: says nothing in the Act grants to President any power 238 00:17:22,840 --> 00:17:31,240 Speaker 1: to directly or indirectly prohibit any personal communication. It was 239 00:17:31,280 --> 00:17:36,320 Speaker 1: on to say, no power to regulate or prohibit directly 240 00:17:36,440 --> 00:17:44,920 Speaker 1: or indirectly any importation or exportation of informational material UM. 241 00:17:45,040 --> 00:17:49,280 Speaker 1: So the TikTok argued, the President is indirectly banning people 242 00:17:49,359 --> 00:17:55,800 Speaker 1: from personal communications via TikTok. TikTok also made arguments around 243 00:17:56,080 --> 00:18:02,119 Speaker 1: UM First Amendment UH, and it made arguments round due process, 244 00:18:02,400 --> 00:18:08,800 Speaker 1: arguing that the President's Order and Commerce Department of implementing 245 00:18:09,320 --> 00:18:15,360 Speaker 1: prohibitions were not properly issued, that TikTok had not had 246 00:18:15,359 --> 00:18:19,159 Speaker 1: an opportunity to respond, that this was basically a violation 247 00:18:19,320 --> 00:18:23,399 Speaker 1: of TikTok's due process. As of this moment, we don't 248 00:18:23,480 --> 00:18:27,439 Speaker 1: actually know which of those arguments the judge accepted UM. 249 00:18:27,520 --> 00:18:33,560 Speaker 1: The judges considering um demands are arguments by either side 250 00:18:33,560 --> 00:18:37,280 Speaker 1: as to whether he should or should not disclose the 251 00:18:37,320 --> 00:18:40,760 Speaker 1: details of his reasoning. That may be decided even as 252 00:18:40,800 --> 00:18:44,879 Speaker 1: we speak. But it was First Amendment. It was the 253 00:18:44,960 --> 00:18:51,080 Speaker 1: underlying statute doesn't even prohibit you from regulating communications. And 254 00:18:52,000 --> 00:18:55,040 Speaker 1: this was tasty and ill founded and therefore a violation 255 00:18:55,280 --> 00:19:01,200 Speaker 1: of due process. What was the Trump administration's argument, Well, 256 00:19:01,320 --> 00:19:05,359 Speaker 1: right on down the line they tried to rebut them 257 00:19:06,320 --> 00:19:12,480 Speaker 1: TikTok's arguments. They said, no, no, we're not banning a 258 00:19:12,520 --> 00:19:17,960 Speaker 1: personal communication. We're only banning the business relationships here, We're 259 00:19:18,000 --> 00:19:24,720 Speaker 1: not regulating any individual TikTok user. We're just regulating the 260 00:19:24,800 --> 00:19:30,640 Speaker 1: Apple uh and Google app stores. So it's not personal, 261 00:19:30,720 --> 00:19:34,160 Speaker 1: it's just business. The problem with that was the statute 262 00:19:34,240 --> 00:19:40,120 Speaker 1: says you cannot regulate or prohibit indirectly even any personal communications. 263 00:19:40,720 --> 00:19:45,840 Speaker 1: Jim is TikTok or is Bye Dance fighting Trump's order 264 00:19:46,280 --> 00:19:50,920 Speaker 1: that its sell the business. Interestingly enough, that's a separate 265 00:19:51,440 --> 00:19:55,720 Speaker 1: fight which is yet to be fully engaged. We actually 266 00:19:55,800 --> 00:20:01,160 Speaker 1: have to parallel process underway with respect TikTok. One terms 267 00:20:01,160 --> 00:20:06,600 Speaker 1: of this order to ban transactions, meaning to ban the 268 00:20:06,720 --> 00:20:10,520 Speaker 1: up stores from doing business with TikTok, to ban the 269 00:20:10,560 --> 00:20:14,080 Speaker 1: content delivery networks and any payment processors throughout doing any 270 00:20:14,119 --> 00:20:17,720 Speaker 1: business with TikTok separate but were clearly related. Separate from 271 00:20:17,760 --> 00:20:20,920 Speaker 1: that is the effort to force the sale, which arises 272 00:20:20,960 --> 00:20:24,080 Speaker 1: under a completely different statute to Defense Production Act. May 273 00:20:24,119 --> 00:20:27,280 Speaker 1: have heard of the so called Scipious Process the Committee 274 00:20:27,280 --> 00:20:30,680 Speaker 1: on Foreign Investment in the United States and to talk 275 00:20:30,680 --> 00:20:37,080 Speaker 1: about extraordinary powers. The statute related to the Scithious Process 276 00:20:37,280 --> 00:20:42,320 Speaker 1: allows the government to demand the unwinding of an already 277 00:20:42,400 --> 00:20:47,440 Speaker 1: completed purchase or acquisition or investment in this case, the 278 00:20:48,720 --> 00:20:53,320 Speaker 1: seen I think it was purchase of Musically by the way, 279 00:20:53,400 --> 00:20:56,919 Speaker 1: a Chinese company, by Byte Dance by the way, another 280 00:20:57,000 --> 00:21:00,639 Speaker 1: Chinese company. So you have this extraordinary situation ship the 281 00:21:00,680 --> 00:21:04,200 Speaker 1: government is claiming the power, of course, one Chinese company 282 00:21:04,280 --> 00:21:09,159 Speaker 1: to divest itself another Chinese company do it retroactively, based 283 00:21:09,200 --> 00:21:12,439 Speaker 1: on the fact that the parent company Light Dance is 284 00:21:12,520 --> 00:21:15,639 Speaker 1: doing business in the United States, so it doesn't have 285 00:21:15,720 --> 00:21:18,880 Speaker 1: to be headquartered here, it doesn't have to be incorporated here. 286 00:21:19,640 --> 00:21:22,600 Speaker 1: But because it is doing business in the United States, 287 00:21:23,359 --> 00:21:28,760 Speaker 1: the government claims that power two control its activities in 288 00:21:28,800 --> 00:21:35,880 Speaker 1: the United States, and that process is still underway so far. Interestingly, 289 00:21:36,040 --> 00:21:41,560 Speaker 1: TikTok is not challenged that order. In fact, it's cited 290 00:21:41,960 --> 00:21:47,600 Speaker 1: it's ongoing dialogue with the government or prior negotiations with 291 00:21:47,640 --> 00:21:53,000 Speaker 1: the government around Scyphius requirements and the potential sale. TikTok 292 00:21:53,280 --> 00:22:02,240 Speaker 1: cited those discussions as reason to block the AIPA order, saying, hey, look, 293 00:22:02,320 --> 00:22:06,479 Speaker 1: the president here acted prematurely. We've been negotiating the sale, 294 00:22:06,680 --> 00:22:10,760 Speaker 1: We've been trying to deal with their concerns on national security. 295 00:22:11,280 --> 00:22:16,359 Speaker 1: By this uh divestiture arrangement, whatever it turns out to be, 296 00:22:17,119 --> 00:22:21,480 Speaker 1: and now all of a sudden, the President unfairly the process, 297 00:22:21,520 --> 00:22:25,080 Speaker 1: they argue, has cut that process short and jumped right 298 00:22:25,600 --> 00:22:32,040 Speaker 1: to this band. So very fluid, very complicated situation. Does 299 00:22:32,119 --> 00:22:36,439 Speaker 1: Bye Dances strategy make sense to be fighting Trump in 300 00:22:36,560 --> 00:22:41,000 Speaker 1: court while it pursues approval for a sale? Oh yeah, 301 00:22:41,040 --> 00:22:44,240 Speaker 1: absolutely no No, because I mean the order was the 302 00:22:44,359 --> 00:22:47,080 Speaker 1: order that had taken effect Sunday night, that would have 303 00:22:47,119 --> 00:22:50,000 Speaker 1: been crippling to the company. It would have knocked it 304 00:22:50,040 --> 00:22:53,800 Speaker 1: off with the uh camp stores. It would have prohibited 305 00:22:53,840 --> 00:22:58,719 Speaker 1: any you have downloads of updates uh hood any updates 306 00:22:58,840 --> 00:23:01,920 Speaker 1: send it to strength in the privacy protection surround data. 307 00:23:03,119 --> 00:23:08,840 Speaker 1: It would have cast advertising relationships in the town. No, 308 00:23:09,000 --> 00:23:14,800 Speaker 1: I think that UM in its arguments to the court 309 00:23:14,840 --> 00:23:19,040 Speaker 1: on the AIPA order, TikTok made a pretty good arguments. 310 00:23:20,440 --> 00:23:22,760 Speaker 1: They were knocked out of the up store. That would 311 00:23:22,760 --> 00:23:28,680 Speaker 1: have been serious injury and that competitive operationally. Last time 312 00:23:28,720 --> 00:23:32,120 Speaker 1: we spoke, there was a possibility a couple of companies 313 00:23:32,119 --> 00:23:37,320 Speaker 1: were pursuing Bye Dance TikTok, and then we heard that. Okay, 314 00:23:37,440 --> 00:23:39,520 Speaker 1: it seemed like the deal was ready, but the deal 315 00:23:39,640 --> 00:23:43,520 Speaker 1: that was suggested. According to that deal, Bye Dance would 316 00:23:43,560 --> 00:23:47,720 Speaker 1: still own eight of the company, if it still has 317 00:23:47,800 --> 00:23:50,440 Speaker 1: control over the company. If you still have a Chinese 318 00:23:50,600 --> 00:23:53,480 Speaker 1: entity with control of the company, that doesn't seem to 319 00:23:53,520 --> 00:23:57,119 Speaker 1: help the things that Syphius is concerned about. That's a 320 00:23:57,119 --> 00:24:00,560 Speaker 1: good point, and I think many people have basically, you know, 321 00:24:00,920 --> 00:24:05,760 Speaker 1: criticized the deal on that grounds that you know, sort 322 00:24:05,760 --> 00:24:07,879 Speaker 1: of an emperor has no closed kind of thing, that 323 00:24:07,960 --> 00:24:11,280 Speaker 1: the deal doesn't actually accomplish what the President said you 324 00:24:11,320 --> 00:24:16,720 Speaker 1: wanted to do. Administration, I think, and they haven't always 325 00:24:16,760 --> 00:24:19,119 Speaker 1: been consistent in how they described this, and they have 326 00:24:19,280 --> 00:24:24,480 Speaker 1: always been clear and what they described. There's a conflicting 327 00:24:24,520 --> 00:24:29,320 Speaker 1: statements between what the administration says, what the acquiring companies say, 328 00:24:29,520 --> 00:24:33,560 Speaker 1: what Byte Dance says, what the Chinese government says. Lots 329 00:24:33,560 --> 00:24:39,040 Speaker 1: of gamps description there. I guess the administration is claiming, well, 330 00:24:40,560 --> 00:24:45,000 Speaker 1: Byte dances ownership is US venture capital funding, and you 331 00:24:45,040 --> 00:24:49,040 Speaker 1: can't which live at this globalized world still, um so 332 00:24:49,240 --> 00:24:53,200 Speaker 1: Byte Dance is already partly owned by US venture capital 333 00:24:53,840 --> 00:24:58,359 Speaker 1: im entities. So you've had an Oracle twelve point five, 334 00:24:58,640 --> 00:25:04,639 Speaker 1: Walmart seven point five, the US venture capital forty and 335 00:25:05,240 --> 00:25:10,679 Speaker 1: that I guess seeks you up around. Does China have 336 00:25:10,760 --> 00:25:13,920 Speaker 1: a say could China say no, we're not going to 337 00:25:13,960 --> 00:25:19,000 Speaker 1: allow that sale to go through. Yeah, yes, absolutely so, 338 00:25:19,160 --> 00:25:22,480 Speaker 1: I mean, as far as I can tell, and it's 339 00:25:22,480 --> 00:25:26,119 Speaker 1: hard to tell from the administration statements because they're not 340 00:25:26,160 --> 00:25:32,320 Speaker 1: always very clear. So far, the administration has not finally 341 00:25:32,400 --> 00:25:36,320 Speaker 1: approved the deal, and I think that deal remains in flux. 342 00:25:37,119 --> 00:25:41,520 Speaker 1: And meanwhile, the Chinese government has not approved the deal, 343 00:25:41,960 --> 00:25:45,679 Speaker 1: and there's been some commentary in the state press in 344 00:25:45,880 --> 00:25:49,840 Speaker 1: China criticizing the deal, which is sometimes a means of 345 00:25:49,880 --> 00:25:52,520 Speaker 1: signaling about what the government is likely to do. So 346 00:25:52,560 --> 00:25:57,879 Speaker 1: the whole deal is, in my opinion, quite tentative, quite uncertain, 347 00:25:58,280 --> 00:26:01,600 Speaker 1: and as you say, even if it goes through, it's 348 00:26:01,640 --> 00:26:06,800 Speaker 1: not clear that it would really solve the initial problems 349 00:26:06,840 --> 00:26:10,120 Speaker 1: raised by the government, if they really were real problems 350 00:26:10,160 --> 00:26:13,000 Speaker 1: in the first place. In terms of how data flows, 351 00:26:13,560 --> 00:26:17,919 Speaker 1: TikTok argues that, yes, we collect substantial data by the 352 00:26:17,920 --> 00:26:22,040 Speaker 1: way every other app does too, but we start in 353 00:26:22,080 --> 00:26:26,280 Speaker 1: the United States and we currently have never yet provided 354 00:26:26,320 --> 00:26:28,880 Speaker 1: any of it to the Chinese government, and we would 355 00:26:28,920 --> 00:26:36,360 Speaker 1: resist efforts to demand it. So very very murky picture, 356 00:26:36,480 --> 00:26:39,679 Speaker 1: both on the question of what are the terms of 357 00:26:39,720 --> 00:26:44,639 Speaker 1: the deal and what would the deal really accomplish in 358 00:26:44,760 --> 00:26:48,000 Speaker 1: terms of the stated national security objectives of the administration. 359 00:26:48,520 --> 00:26:50,520 Speaker 1: Some people are referring to this as part of the 360 00:26:50,560 --> 00:26:54,320 Speaker 1: digital Cold War. And the Trump administration has forced the 361 00:26:54,359 --> 00:26:58,320 Speaker 1: sale of an app before, hasn't it. Absolutely. They forced 362 00:26:58,359 --> 00:27:03,439 Speaker 1: the unwinding of the dating or back grinder by a 363 00:27:03,560 --> 00:27:07,240 Speaker 1: Chinese company. They forced the unwinding of the sale of 364 00:27:07,359 --> 00:27:12,160 Speaker 1: a company called Patients Like Me to China. So data 365 00:27:12,320 --> 00:27:18,439 Speaker 1: has clearly become a focus of tension in terms of 366 00:27:18,880 --> 00:27:21,639 Speaker 1: foreign investment in the United States. Going way back, the 367 00:27:21,760 --> 00:27:25,800 Speaker 1: Defense Production Act started out with concerns that actually Japan 368 00:27:25,880 --> 00:27:30,119 Speaker 1: at the time that Japanese companies were buying too much 369 00:27:30,119 --> 00:27:33,919 Speaker 1: of the American defense production capability. You don't want to 370 00:27:33,960 --> 00:27:37,679 Speaker 1: have your only tank factory owned by foreign investors. You 371 00:27:37,720 --> 00:27:41,160 Speaker 1: don't want to have any company that made military equipment 372 00:27:41,240 --> 00:27:45,440 Speaker 1: owned by foreign investors. That's where this all started years ago. 373 00:27:46,080 --> 00:27:50,760 Speaker 1: Has Trump been taking an increasingly hard line on China 374 00:27:51,920 --> 00:27:56,600 Speaker 1: as the election approaches, Yeah, and in fact they TikTok 375 00:27:57,119 --> 00:28:01,280 Speaker 1: made that argument explicitly in its reef over the weekend, 376 00:28:02,160 --> 00:28:05,960 Speaker 1: uh saying that this has relatively little to do with 377 00:28:06,040 --> 00:28:09,119 Speaker 1: TikTok per se, it actually has relatively little to do 378 00:28:09,359 --> 00:28:14,880 Speaker 1: with concerns about data or censorship or introduction of propaganda 379 00:28:15,000 --> 00:28:20,560 Speaker 1: into the TikTok stream, and that in fact is related 380 00:28:20,600 --> 00:28:27,399 Speaker 1: to anti China sentiment which is partly being pumped up 381 00:28:27,520 --> 00:28:30,280 Speaker 1: in the lead up to the to the election. So 382 00:28:30,760 --> 00:28:36,679 Speaker 1: lots of motivation swirling around here um and lots of 383 00:28:36,840 --> 00:28:40,520 Speaker 1: mixed motives. Mixed motives on the part of the government 384 00:28:40,520 --> 00:28:47,120 Speaker 1: don't necessarily condemn its actions, but they do contribute to 385 00:28:47,160 --> 00:28:50,760 Speaker 1: the sense that this is not a well thought out policy, 386 00:28:51,280 --> 00:28:55,560 Speaker 1: and that feeds into TikTok's argument that this is not 387 00:28:56,840 --> 00:29:00,680 Speaker 1: system with due process. Government needs to be more more 388 00:29:00,720 --> 00:29:04,080 Speaker 1: methodical and what it does. The government has responded in 389 00:29:04,400 --> 00:29:06,600 Speaker 1: its brief, it responded and said no, no, We've been 390 00:29:06,680 --> 00:29:11,560 Speaker 1: very consistent. The Secretary of Commerce issued a major determination. 391 00:29:11,800 --> 00:29:18,400 Speaker 1: It's all backed up by fact. But the conflicting and 392 00:29:18,840 --> 00:29:26,400 Speaker 1: incomplete and somewhat ambiguous statements from the administration have certainly 393 00:29:26,400 --> 00:29:29,560 Speaker 1: not helped this case. And what's happening with whee chat. 394 00:29:29,640 --> 00:29:33,440 Speaker 1: We don't hear as much about we chat well. A 395 00:29:33,640 --> 00:29:38,760 Speaker 1: federal court has also issued in order of blocking the 396 00:29:38,760 --> 00:29:44,720 Speaker 1: President's order on we chat. So the President issued in 397 00:29:44,800 --> 00:29:49,680 Speaker 1: August a very similar in effect almost identical order to 398 00:29:49,800 --> 00:29:59,360 Speaker 1: be order on TikTok, and on September a federal district 399 00:29:59,400 --> 00:30:05,600 Speaker 1: courting California issued a preliminary injunction blocking that border. That 400 00:30:05,760 --> 00:30:11,320 Speaker 1: court relied explicitly on the First Amendment issues. UH. The 401 00:30:11,400 --> 00:30:15,520 Speaker 1: case was brought not by we Chat or its Chinese owner, 402 00:30:15,600 --> 00:30:20,480 Speaker 1: ten Cent, but by the wheat Chat Users Alliance, and 403 00:30:21,240 --> 00:30:24,960 Speaker 1: they argued, and the court agreed that we chat had 404 00:30:25,000 --> 00:30:29,360 Speaker 1: become a virtual public square very important words and our 405 00:30:29,440 --> 00:30:33,680 Speaker 1: sort of First Amendment analysis public square uh, and that 406 00:30:33,760 --> 00:30:36,720 Speaker 1: we chat was a virtual public square, and that it 407 00:30:36,840 --> 00:30:40,480 Speaker 1: was for some Chinese Americans and Chinese nationals in the 408 00:30:40,560 --> 00:30:45,600 Speaker 1: United States it was really their only effective way of 409 00:30:45,760 --> 00:30:49,400 Speaker 1: communicating because it was optimized for the Chinese language and 410 00:30:49,440 --> 00:30:54,239 Speaker 1: there wasn't really quite anything adequate to replace it. Um. 411 00:30:54,440 --> 00:30:58,600 Speaker 1: So there's a preliminary injunction blocking the administration there. Now 412 00:30:59,520 --> 00:31:02,360 Speaker 1: you know that first step in both cases, this is 413 00:31:02,360 --> 00:31:07,360 Speaker 1: the first step. What will ultimately happen. Will these preliminary 414 00:31:07,880 --> 00:31:11,360 Speaker 1: injunctions be turned into permanent injunctions? Will they be upheld 415 00:31:11,800 --> 00:31:16,280 Speaker 1: by the appeals court? Process completely in my opinion, very 416 00:31:16,280 --> 00:31:20,200 Speaker 1: hard to predict. Thanks Jim, that's Jim Dempsey, executive director 417 00:31:20,240 --> 00:31:23,440 Speaker 1: of the Berkeley Center for Law and Technology. And that's 418 00:31:23,480 --> 00:31:25,920 Speaker 1: it for this edition of the Bloomberg Law Show. I'm 419 00:31:26,000 --> 00:31:28,400 Speaker 1: John Brusso, and you're listening to Bloomberg