Speaker 1: Women across Texas protested the Supreme Court's refusal to block
Speaker 1: a controversial Texas law that outlaws abortions after only six
Speaker 1: weeks of pregnancy. It has a novel mechanism that leaves
Speaker 1: it up to private citizens to enforce the law by
Speaker 1: suing anyone who helps a woman get an abortion. The
Speaker 1: head of Planned Parenthood, Alexis McGill Johnson, says the new
Speaker 1: law will turn people against each other, surveiling people, you know,
Speaker 1: trying to figure out their comings and going sharing confidential information.
Speaker 1: That just is like such a destruction of community, of society,
Speaker 1: of democracy, and the constitution all once it's it's it's horrific.
Speaker 1: By a vote of five to four, with the Conservatives
Speaker 1: and the majority and Chief Justice John Roberts joining the
Speaker 1: liberals and dissent, the Court turned down calls from abortion
Speaker 1: providers to put the law on hold while the legal
Speaker 1: process plays out. Joining me is Carol Sanger, a professor
Speaker 1: at Columbia Law School and a leading scholar of reproductive rights.
Speaker 1: Is this a watershed moment in abortion rights? With the
Speaker 1: Supreme Court allowing a lot to go into effect. That's
Speaker 1: at odds with its precedents protecting abortion rights. Yes, this
Speaker 1: is a watershed moment for abortion rights and possibly other
Speaker 1: rights as well, because what normally would happen is that
Speaker 1: when there's a fragrant violation of Roe or Casey, as
Speaker 1: Justice so tom Or called it, what the court would
Speaker 1: do is say, we have to sort this out and
Speaker 1: decide is this a violation or not? Is six weeks
Speaker 1: too early? Does that violate the viability standard? But while
Speaker 1: we're deciding that, we will not let the law go
Speaker 1: into effect. And that's what's happened. Eight other states have
Speaker 1: passed the week heartbeat bands, and in every one of them,
Speaker 1: lower courts have said, yeah, well, we'll have to decide
Speaker 1: what to do about that. But in the meantime, we're
Speaker 1: not taking away the right to get an abortion. And
Speaker 1: so what's strange about this case is that they didn't
Speaker 1: save the law in that way. The majority opinion was
Speaker 1: a page and a half and said the law might
Speaker 1: or might not be unconstitutional. What implications can you draw
Speaker 1: from it? It is definitely a watershed moment, although it
Speaker 1: is not necessarily the catastrophic watershed moment, by which I
Speaker 1: mean the decision that the court handed down does not
Speaker 1: overturn Row and they're very clear about that, and they say,
Speaker 1: we are not deciding the constitutionality of the law, but
Speaker 1: we just can't give them the relief that the abortion
Speaker 1: clinics want right now. And there's a reason they could
Speaker 1: do that, although nothing compels them to do that, which
Speaker 1: was there's this crazy provision that says this law is
Speaker 1: not going to be enforced by the people who usually
Speaker 1: enforced laws, like prosecutors or government officials. Here anybody, any
Speaker 1: citizen and it doesn't even have to be a Texas citizen,
Speaker 1: can go after another person performing one or aiding and
Speaker 1: a betting in one. So it's a very crazy and
Speaker 1: Justice Roberts called it a novel and complicated provision and
Speaker 1: sort of turns everybody into either a bounty hunter or
Speaker 1: vigilante because you're now supposed to buy on your neighbors
Speaker 1: and figure out who's getting an abortion after six weeks
Speaker 1: and who's helping them. Because you can bring an action
Speaker 1: against anyone who's aids or a bet which is kind
Speaker 1: of language we use with criminal law. Is anyone helping
Speaker 1: the woman along if they are, you can go after
Speaker 1: that person and the penalty is ten thousand dollars if
Speaker 1: you prove that they helped them. So the Texas lawmakers
Speaker 1: here designed the law so that it would be difficult
Speaker 1: to challenge in court. And that's what the dissenters say.
Speaker 1: This was intense really engineered to present not a substantive
Speaker 1: problem with the law, like is six weeks viable? You know,
Speaker 1: what does that do to the viability protection, but to
Speaker 1: throw a real procedural wrench into how we litigate cases.
Speaker 1: So yes, and the court said, we don't even know
Speaker 1: what to do about this because we don't know who
Speaker 1: should be sued, because we can't figure out who's actually
Speaker 1: going to enforce this. So it is novel, that's for sure.
Speaker 1: And it's intentionally done to wreck the legal process to
Speaker 1: make sure that the federal court can't get at the
Speaker 1: constitutional question. The dissenters acknowledge that this was way way
Speaker 1: outside the envelope of anything that's been tried. Are the
Speaker 1: five conservative justice is sort of tipping their hand that
Speaker 1: they'll reverse Roe v. Wade when the case on the
Speaker 1: Mississippi abortion ban is decided in the upcoming term. Well,
Speaker 1: it would seem so, because if had sought at all
Speaker 1: that the point has had a stronger case, they should
Speaker 1: not have let the Texas law go forward. So yes,
Speaker 1: they're tipping their hand in that regard. And remember Texas
Speaker 1: is six weeks in Mississippi puts a fifteen week ban
Speaker 1: on abortion, which suddenly seems like big and generous and
Speaker 1: still fall six weeks short of where Brow and Casey
Speaker 1: would have put the marker. One other thing is it
Speaker 1: shows something else. Lots of people have been saying, well,
Speaker 1: election years coming up, and the Court doesn't want to
Speaker 1: get in law in politics, but it looks like the
Speaker 1: Court is very happy to jump in and stir things
Speaker 1: up a little bit, so they don't seem a bit
Speaker 1: shy of taking on abortion cases, which you know haven't
Speaker 1: been the conventional wisdom. Thanks Carol. That's Carol Sanger of
Speaker 1: Columbia Law School. This is Bloomberg Law with June Brusso
Speaker 1: from Bloomberg Radio. I'm the founder and CEO of this company.
Speaker 1: Anything that happens in this company is my responsibility at
Speaker 1: the end of the day. Although Elizabeth Holmes said that
Speaker 1: in sixteen in an interview with NBC Now in a
Speaker 1: courtroom in Silicon Valley where she's fighting to stay out
Speaker 1: of prison, her story has changed. Holmes is on trial
Speaker 1: for defrauding investors and patients after Para No Nos, the
Speaker 1: blood testing startups she created and led, was found to
Speaker 1: be a massive fraud, and her defense is trying to
Speaker 1: transform the former star CEO into a victim who is
Speaker 1: not responsible for the frauds behind the company. Quite a
Speaker 1: different picture from the confident, self made billionaire portrayed in books,
Speaker 1: countless articles, and an HBO documentary. I don't have many secrets,
Speaker 1: but now Holmes is claiming that she kept one secret
Speaker 1: for years, the secret of a decade long campaign of
Speaker 1: abuse by her former boyfriend, the president of Para Nos,
Speaker 1: Sonny Balwani, who has denied any abuse. Joining as Anne Coughlin,
Speaker 1: a professor at the University of Virginia Law School, and
Speaker 1: she claims she was locked in a psychologically, emotionally and
Speaker 1: sexually abusive relationship with Sonny Balwannie. What kind of defense
Speaker 1: might she be raising here? So the recent filings now
Speaker 1: give us a much clearer picture of what the trial
Speaker 1: testimony might look like on her behalf, But we're not
Speaker 1: really sure yet precisely what claims she's going to make.
Speaker 1: It's going to be some kind of claim that she
Speaker 1: lacked the intent to commit the fraud that she's charged with.
Speaker 1: At least that's what I think, but it really is
Speaker 1: a bombshell. With the filings being unsealed, we now know
Speaker 1: that her story is that she was psychologically, physically, and
Speaker 1: perhaps sexually abused by him for many, many years, and
Speaker 1: that because of that abuse, she suffered from post traumatic
Speaker 1: stress disorder other types of mental health disorders that she
Speaker 1: believed are relevant to assessing her liability for the fraud.
Speaker 1: I main question will be whether she intentionally lied to
Speaker 1: deceive people. So how would she frame that defense. There's
Speaker 1: a couple of different claims she could be making. One
Speaker 1: is that she was acting under his dress. That is, yes,
Speaker 1: she would acknowledge she did, in fact make false statements,
Speaker 1: and yes these were false statements of material fact they
Speaker 1: induce investors to rely and give her lots of money.
Speaker 1: So she would acknowledge those basic facts. But she would
Speaker 1: say that she did those things only because she was
Speaker 1: so frightened of him and that he was going to
Speaker 1: abuse her. In other words, the classic Durest defense in
Speaker 1: criminal law, the image is of a person committing a
Speaker 1: crime with a gun into the head, and so his
Speaker 1: abuse would be in this story, analogous to the gun
Speaker 1: to the head, but of course the law will take
Speaker 1: account of other kinds of pressures. Or so she's hoping
Speaker 1: that it's not actually a literal gun to the head
Speaker 1: while she's committing the crime, but that she's doing it
Speaker 1: under a tremendous amount of psychological pressure that was created
Speaker 1: by his past abuse. So that's one claim, it's a
Speaker 1: dressed claim. Another claim that I see perhaps emerging from
Speaker 1: these filings is that she was under his sway again.
Speaker 1: She'd been in this relationship with him. He was an
Speaker 1: older man, and she's telling a story that he was
Speaker 1: the dominant person, that he was again abusive to her
Speaker 1: in various ways, and she might claim that he was
Speaker 1: the mastermind in the sense that he came up with
Speaker 1: the fraud and she was actually relying on him. He
Speaker 1: was telling her while he was running the company with
Speaker 1: her that in fact the technology worked, and she was
Speaker 1: taking his word for it. So that claim would be, Hey,
Speaker 1: wait a minute, I was under the sway of this
Speaker 1: powerful man. He was running the show. He was telling me, Hey,
Speaker 1: this technology works, and I was just sort of the
Speaker 1: face of the company, right. I was the spokesperson that
Speaker 1: was being used for pr purposes, I believed him. So
Speaker 1: that's another claim that she might be making. Bell Wanie
Speaker 1: unequivocally denies this. But can Holmes attorney say whatever they
Speaker 1: want in the courtroom because he's not in the courtroom
Speaker 1: and the government can't call him to testify because they
Speaker 1: were jointly charged and he's facing his own trial early
Speaker 1: next year. Yes, so you're making a fantastic point. This
Speaker 1: is one of those classic he said, she said, cross
Speaker 1: witnesses kind of situation. But in this trial, because of
Speaker 1: the severance and because of his sistem and privilege, we
Speaker 1: will hear her account, perhaps through her own testimony. It
Speaker 1: now looks as though she is very likely to take
Speaker 1: the stand, and certainly through her lawyers arguments and evidence
Speaker 1: that they put on, will hear her side of the story.
Speaker 1: If this is her theory. The testimony on her behalf
Speaker 1: will be that in fact, he was an abusive partner,
Speaker 1: but he will not be available to take the stand
Speaker 1: and to rebut those claims. Now we have to make
Speaker 1: really clear that he adamantly denies that he played the
Speaker 1: role that she is describing. So it is awkward and complicated.
Speaker 1: The government will be looking for I take it a
Speaker 1: whole variety of ways to pick holes in her story.
Speaker 1: And let's be clear, the jury isn't obliged to believe
Speaker 1: this story in the absence of any corroborating evidence on
Speaker 1: her part. So I would imagine that she will need
Speaker 1: to point to examples of behavior by him, things that
Speaker 1: other witnesses observed, you know, perhaps angry or abusive behavior
Speaker 1: by him that they witnessed, and that they could say that, yes,
Speaker 1: he was this type of person. Then two, she may
Speaker 1: have a trove of communications between the two of them
Speaker 1: that support or corroborate her claim that he was abusive.
Speaker 1: You know, you could imagine emails or text messages or
Speaker 1: other kinds of recorded materials that she would offer to
Speaker 1: corroborate her story. This defense strategy seems to be unheard
Speaker 1: of in a white collar fraud case. What potential problems
Speaker 1: do you see? This case seems to me to be
Speaker 1: unique in the following sense. She concealed her relationship with
Speaker 1: Balwani from everyone. It's not just that people were unaware
Speaker 1: that he was abusing her. She also concealed the fact
Speaker 1: that they had a romantic partnership for many, many years.
Speaker 1: People did not know that people in the company investers
Speaker 1: did not know. That concealed the fact that they were
Speaker 1: living together. So it's complicated for her. We didn't even
Speaker 1: know you were in the relationship with this guy, and
Speaker 1: now you're telling us that it was an abusive relationship.
Speaker 1: The point she lied to people about the fact of
Speaker 1: the relationship or omitted to tell people about the fact
Speaker 1: of the relationship, and people are gonna think, hey, well
Speaker 1: wait a minute, and now you're coming in and you
Speaker 1: expect us to believe that he was abusive too, So
Speaker 1: that could be problematic for her. The other thing June
Speaker 1: that I noticed, I was trying to look at the
Speaker 1: date on which their relationship began and the date that
Speaker 1: it ended, because that's one thing that will be important
Speaker 1: to the prosecutors, is to look at the duration of
Speaker 1: the relationship and where she was and where he was
Speaker 1: during the various times that she's claiming that she acted
Speaker 1: under his dress. And it looks to me from the
Speaker 1: stories that I've been reading, that they broke up in
Speaker 1: twenty sixteen, and there's different stories about why he left
Speaker 1: the company, but it looks like they simultaneously broke up
Speaker 1: and he left the company, but after sixteen, she was
Speaker 1: deposed by the SEC in and during that deposition, I
Speaker 1: don't believe she offered any information that suggested that she
Speaker 1: did these things because she was suffering from PTSD or
Speaker 1: some other type of mental health disorder brought on by
Speaker 1: his abuse. You know, to the extent that the prosecution
Speaker 1: is allowed to use the evidence of that deposition to
Speaker 1: cross examine her if she takes the stand, that might
Speaker 1: be again a very effective way of testing doubt on
Speaker 1: her story, which is, hey, wait a minute, suddenly he's
Speaker 1: out of the picture, and yet you're still continuing to
Speaker 1: tell these lives. And so that's the kind of evidence
Speaker 1: that I would expect the prosecution to try to develop
Speaker 1: about her testifying. Her attorneys have told the court they
Speaker 1: expect her to testify. But the defendant testifying is always
Speaker 1: a gamble, is it more so here because of all
Speaker 1: the comments she's made in interviews and that sec deposition
Speaker 1: you mentioned where she said I don't know at least
Speaker 1: six hundred times. So the question is, now she knows
Speaker 1: it's a huge gamble to take the stand, but it
Speaker 1: may be the only chance that she has, in her
Speaker 1: view and the view of her lawyers and of course,
Speaker 1: we don't yet know exactly what other sorts of claims
Speaker 1: they might be able to make. But to the extent
Speaker 1: that they're relying on this history of psychological abuse, she
Speaker 1: pretty much would have to take the stand to make
Speaker 1: it convincing. And then it all will depend on whether
Speaker 1: the jury finds her credible, not based just on her
Speaker 1: testimony on direct examination when she's in control of scripting
Speaker 1: the play, if you will, but on cross examination when
Speaker 1: a point to all kinds of lies that she told
Speaker 1: in the past, for example the sec deposition, she says,
Speaker 1: I don't know, and then suddenly at the trial she's
Speaker 1: telling yet a different story. The argument will be, while
Speaker 1: you were lying, then you're lying. Now you know. She's
Speaker 1: in a very very tough position, but it may be
Speaker 1: her only gamble. Thanks An That's and Covlin of the
Speaker 1: University of Virginia Law School. A jury of seven men
Speaker 1: and five women was chosen this week. It includes at
Speaker 1: least one woman who disclosed personal experience of abuse, the
Speaker 1: subject that may prove central to deciding Holmes guilt or innocence.
Speaker 1: Opening statements will be given on Wednesday, and that's it
Speaker 1: for the edition of the Bloomberg Law Show. Remember you
Speaker 1: can always get the latest legal news on our Bloomberg
Speaker 1: Lawn podcast. You can find them on Apple Podcasts, Spotify,
Speaker 1: and at www dot bloomberg dot com slash podcast slash Law.
Speaker 1: I'm joom So and you're listening to bloom mhm