1
00:00:03,200 --> 00:00:08,000
Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

2
00:00:09,600 --> 00:00:12,600
Speaker 2: We will be moving forward swiftly on those articles. It's

3
00:00:12,720 --> 00:00:13,560
Speaker 2: long overdue.

4
00:00:13,600 --> 00:00:17,680
Speaker 1: Only one Cabinet secretary has ever been impeached by the House,

5
00:00:18,079 --> 00:00:22,000
Speaker 1: and that was in eighteen seventy six. But House Republicans

6
00:00:22,040 --> 00:00:24,960
Speaker 1: are trying to make that happen again, this time to

7
00:00:25,040 --> 00:00:29,840
Speaker 1: Homeland Security Secretary Alejandro Majorcis. The Republicans who are leading

8
00:00:29,880 --> 00:00:33,360
Speaker 1: the impeachment inquiry said that Majorcas has been ignoring the

9
00:00:33,440 --> 00:00:36,760
Speaker 1: law and accused him of creating the crisis at the border.

10
00:00:37,000 --> 00:00:40,720
Speaker 1: Here's the chair of the Homeland Security Committee, Republican Mark Green.

11
00:00:41,159 --> 00:00:44,720
Speaker 2: Homeland Security Secretary Alejandro Majorcis took a similar oath, but

12
00:00:44,800 --> 00:00:47,600
Speaker 2: he has not lived up to it. He is wilfully

13
00:00:47,880 --> 00:00:51,040
Speaker 2: and systematically refused to comply with the laws passed by

14
00:00:51,040 --> 00:00:55,000
Speaker 2: Congress and breached the trust of Congress and the American people.

15
00:00:55,200 --> 00:00:59,120
Speaker 1: But Democrats, like Committee ranking member Benny Thompson, say that

16
00:00:59,200 --> 00:01:03,600
Speaker 1: Republicans are confusing law with policy and that Majorcis has

17
00:01:03,640 --> 00:01:07,440
Speaker 1: acted within his authority to enforce current immigration laws.

18
00:01:07,880 --> 00:01:12,640
Speaker 3: He's leveraged the full range of authorities at his disposal,

19
00:01:13,240 --> 00:01:17,720
Speaker 3: while stretching the resources provided by Congress to secure the border.

20
00:01:18,640 --> 00:01:22,280
Speaker 3: He has removed record levels of migrants detained by more

21
00:01:22,360 --> 00:01:27,240
Speaker 3: people than Congress has provided funding for, and prevented record

22
00:01:27,319 --> 00:01:30,400
Speaker 3: levels of fentanyl from entering our communities.

23
00:01:30,640 --> 00:01:35,200
Speaker 1: And Democratic Congressman Dan Goldman says its pure hypocrisy to

24
00:01:35,280 --> 00:01:38,560
Speaker 1: impeach Mariorcists while he's working with a group of Senate

25
00:01:38,600 --> 00:01:43,200
Speaker 1: Republicans to craft a bipartisan deal on immigration, a deal

26
00:01:43,240 --> 00:01:47,319
Speaker 1: that House Republicans refused to consider. The committee vote to

27
00:01:47,360 --> 00:01:51,960
Speaker 1: advance the impeachment articles against Mariorcists was eighteen to fifteen

28
00:01:52,240 --> 00:01:55,800
Speaker 1: down party lines. Joining me is an expert on impeachment,

29
00:01:56,000 --> 00:01:59,320
Speaker 1: Michael Gerhard, a professor at the University of North Carolina

30
00:01:59,400 --> 00:02:03,720
Speaker 1: Law School. I'd like to start with the basics, explain

31
00:02:03,840 --> 00:02:08,200
Speaker 1: the standard of high crimes and misdemeanors needed to impeach someone.

32
00:02:08,760 --> 00:02:14,040
Speaker 4: Those terms referred to serious abuses of power or misconduct

33
00:02:14,080 --> 00:02:16,000
Speaker 4: on the part of the people who are impeachable that

34
00:02:16,360 --> 00:02:17,880
Speaker 4: seriously hurts the republic.

35
00:02:18,120 --> 00:02:21,440
Speaker 1: So there's nothing definitive. It's a broad category.

36
00:02:21,600 --> 00:02:23,800
Speaker 4: Well, it's a broad category, but I don't think it

37
00:02:23,880 --> 00:02:27,440
Speaker 4: lacks definiteness. I think it just means that it creates

38
00:02:27,440 --> 00:02:31,440
Speaker 4: a metric which ought to sort of recognize that some

39
00:02:31,480 --> 00:02:33,440
Speaker 4: things are going to fall below it and some things

40
00:02:33,480 --> 00:02:37,720
Speaker 4: are going to fit. Jay Walkin won't qualify, but President's

41
00:02:37,800 --> 00:02:41,560
Speaker 4: lying to the Senate to securit a Treaties ratification might qualify.

42
00:02:42,080 --> 00:02:44,120
Speaker 4: Abuse of the pardon power might qualify.

43
00:02:44,400 --> 00:02:50,119
Speaker 1: They have advanced two articles of impeachment against Secretary Majorcis.

44
00:02:50,880 --> 00:02:54,600
Speaker 1: The first is that he's willfully and systemically refused to

45
00:02:54,639 --> 00:03:00,160
Speaker 1: comply with immigration laws enacted by Congress. They're basically saying

46
00:03:00,200 --> 00:03:05,240
Speaker 1: that his actions have created the crisis at the border.

47
00:03:06,280 --> 00:03:09,480
Speaker 4: That's what they want to say. Yes, and of course

48
00:03:09,520 --> 00:03:14,320
Speaker 4: that's absurd. That crisis has been around for decades and

49
00:03:14,840 --> 00:03:17,920
Speaker 4: New Yorcus is following the law, as both he and

50
00:03:18,000 --> 00:03:19,400
Speaker 4: President Biden understand.

51
00:03:19,800 --> 00:03:24,560
Speaker 1: Some Democratic lawmakers have said that what the Republicans are

52
00:03:24,600 --> 00:03:28,680
Speaker 1: complaining about or attacking Majorcus for is policy.

53
00:03:29,280 --> 00:03:32,359
Speaker 4: Yes. In fact, for example, the reference to as a

54
00:03:32,400 --> 00:03:34,640
Speaker 4: basis for one of the patron articles, New York has

55
00:03:34,639 --> 00:03:37,560
Speaker 4: has made various false statements. But if you sort of

56
00:03:37,720 --> 00:03:41,040
Speaker 4: get behind that, what the articles are really saying is, well,

57
00:03:41,080 --> 00:03:44,040
Speaker 4: he hasn't said under oath that the situation at the

58
00:03:44,080 --> 00:03:46,640
Speaker 4: southern border is like what we the Republicans think it is.

59
00:03:46,960 --> 00:03:49,200
Speaker 4: They doesn't make for a false statement. It just means

60
00:03:49,200 --> 00:03:51,640
Speaker 4: that New York is you know from the respective he's god,

61
00:03:51,960 --> 00:03:55,000
Speaker 4: he's got a good faith understanding. It's just different than

62
00:03:55,000 --> 00:03:56,000
Speaker 4: what the Republicans said.

63
00:03:56,160 --> 00:03:59,640
Speaker 1: That's part of the second article of impeachment, knowingly making

64
00:03:59,680 --> 00:04:02,840
Speaker 1: false it's to Congress and the American people and obstructing

65
00:04:02,920 --> 00:04:07,440
Speaker 1: Congressional oversight of his department. In fact, he's testified before

66
00:04:07,520 --> 00:04:11,400
Speaker 1: Congress more than any other cabinet member twenty seven times

67
00:04:11,440 --> 00:04:12,880
Speaker 1: in thirty five months.

68
00:04:13,360 --> 00:04:16,640
Speaker 4: And really what's behind that charge is he just hasn't

69
00:04:16,680 --> 00:04:19,200
Speaker 4: said what they want him to say. He hasn't done

70
00:04:19,200 --> 00:04:21,880
Speaker 4: what they want him to do, So no legitimate basis

71
00:04:21,880 --> 00:04:22,480
Speaker 4: for impeachment.

72
00:04:22,839 --> 00:04:26,600
Speaker 1: How unusual is it that they held two public impeachment

73
00:04:26,640 --> 00:04:31,240
Speaker 1: hearings last month without majorcas is in person testimony or

74
00:04:31,279 --> 00:04:33,600
Speaker 1: testimony from any fact witnesses.

75
00:04:34,480 --> 00:04:38,040
Speaker 4: Exactly right, because this is not about impeachure on wisconduct.

76
00:04:38,120 --> 00:04:41,320
Speaker 4: It's about trying to hurt President Biden in his re

77
00:04:41,360 --> 00:04:45,360
Speaker 4: election campaign. This is about trying to serve make a

78
00:04:45,600 --> 00:04:49,280
Speaker 4: circus out of what's happening down at the border. So

79
00:04:49,920 --> 00:04:54,240
Speaker 4: the problem with basing impeachment on policy differences is that's

80
00:04:54,240 --> 00:04:58,120
Speaker 4: what elections are supposed to be about. And it's just

81
00:04:58,960 --> 00:05:01,159
Speaker 4: absurd to think what the trial is going to look

82
00:05:01,240 --> 00:05:03,360
Speaker 4: like if there were a trial on this, because what's

83
00:05:03,400 --> 00:05:06,440
Speaker 4: going to be put on trial is the Biden immigration policy,

84
00:05:06,680 --> 00:05:10,360
Speaker 4: and that's ridiculous. Peatment's design, as I said at the beginning,

85
00:05:10,560 --> 00:05:14,080
Speaker 4: for serious misconduct or abuse of power that hurts the

86
00:05:14,120 --> 00:05:19,320
Speaker 4: Republic and having a good face difference of opinion about

87
00:05:19,800 --> 00:05:21,680
Speaker 4: what might work at the border and what might not

88
00:05:21,800 --> 00:05:24,719
Speaker 4: work at the border is well within the bounds of

89
00:05:24,760 --> 00:05:28,159
Speaker 4: the President and Secretary's discression. And it's something that is

90
00:05:28,240 --> 00:05:30,960
Speaker 4: bear game to talk about in a presidential campaign.

91
00:05:31,520 --> 00:05:35,520
Speaker 1: And two law professors who testified before the committee agree

92
00:05:35,560 --> 00:05:38,200
Speaker 1: with you. They both stated they did not see a

93
00:05:38,240 --> 00:05:43,280
Speaker 1: constitutional basis for impeachment. And there are a whole slate

94
00:05:43,480 --> 00:05:48,200
Speaker 1: of Democrats that House Republicans want to impeach, including of

95
00:05:48,240 --> 00:05:51,160
Speaker 1: course the president. How did we get to this frequent

96
00:05:51,440 --> 00:05:54,919
Speaker 1: use of impeachment something that was rare in our history.

97
00:05:55,279 --> 00:05:58,520
Speaker 4: It happened with Trump and those people that want to

98
00:05:58,560 --> 00:06:01,120
Speaker 4: sort of follow his lead. So Mike Johnson is very

99
00:06:01,160 --> 00:06:03,720
Speaker 4: close to Trump. You know, he voted not to impeach

100
00:06:03,720 --> 00:06:07,039
Speaker 4: Trump either time. And he's working with the kind of

101
00:06:07,040 --> 00:06:09,479
Speaker 4: far right and the magu Republicans in the House to

102
00:06:10,080 --> 00:06:13,599
Speaker 4: really turn impeachment into a partisan weapon. This is not

103
00:06:13,760 --> 00:06:18,080
Speaker 4: something that we've had experience with before because generally speaking,

104
00:06:18,120 --> 00:06:21,400
Speaker 4: although we've never had a perfect system of politics, impeachment

105
00:06:21,400 --> 00:06:23,840
Speaker 4: has been something that's been rarely used. But I think

106
00:06:23,960 --> 00:06:28,080
Speaker 4: one way Republicans can dilute the impeachment of Trump to

107
00:06:28,160 --> 00:06:30,640
Speaker 4: make it seem less serious, as if they just start

108
00:06:30,640 --> 00:06:32,839
Speaker 4: impeaching everybody. But of course they're not going to be

109
00:06:32,839 --> 00:06:35,400
Speaker 4: able to impeach everybody because they'd have to get the

110
00:06:35,440 --> 00:06:39,680
Speaker 4: moderate Republicans to go along. And there's no prospect whatsoever

111
00:06:39,839 --> 00:06:41,440
Speaker 4: that any of these things are going to result in

112
00:06:41,440 --> 00:06:42,120
Speaker 4: the Senate conviction.

113
00:06:42,720 --> 00:06:46,480
Speaker 1: Yeah, and so the Homeland Security Committee Chair Mark Green

114
00:06:46,560 --> 00:06:50,239
Speaker 1: said he feels quote pretty good. The same question gets asked,

115
00:06:50,279 --> 00:06:52,600
Speaker 1: are you just doing something that's going to wind up

116
00:06:52,600 --> 00:06:56,000
Speaker 1: being fruitless anyway because of the Senate? Well, fine, if

117
00:06:56,000 --> 00:06:57,960
Speaker 1: that's what they choose to do, but I have a

118
00:06:58,040 --> 00:06:58,600
Speaker 1: duty to.

119
00:06:58,560 --> 00:07:02,880
Speaker 4: Do right way is exactly what House Democrats said when

120
00:07:02,920 --> 00:07:05,000
Speaker 4: they were faced with the same argument when they were

121
00:07:05,000 --> 00:07:09,120
Speaker 4: trying to impeach Trump, and Republicans said at that time, Oh,

122
00:07:09,400 --> 00:07:10,880
Speaker 4: this is a waste of time. It's just going to

123
00:07:10,880 --> 00:07:13,320
Speaker 4: die in the Senate. But in my opinion, one big

124
00:07:13,360 --> 00:07:15,920
Speaker 4: difference between the two impeachments of Trump and these other

125
00:07:15,960 --> 00:07:20,120
Speaker 4: impeachments is the impeachments against Trump were based on his misconduct.

126
00:07:20,280 --> 00:07:24,120
Speaker 4: Nobody invented that he engaged in certain activities that were

127
00:07:24,240 --> 00:07:27,720
Speaker 4: beyond either the skill of his power or that really

128
00:07:27,840 --> 00:07:31,160
Speaker 4: seriously injured the Constitution and the rule of law. So

129
00:07:31,720 --> 00:07:35,480
Speaker 4: I think one reason why we get this kind of

130
00:07:35,520 --> 00:07:39,440
Speaker 4: the whole slew of threats of impeachment is to perhaps

131
00:07:39,560 --> 00:07:42,000
Speaker 4: desensitize I guess the public when it comes to the

132
00:07:42,040 --> 00:07:44,440
Speaker 4: serious sense of impeachment. They want the public and gets

133
00:07:44,440 --> 00:07:46,480
Speaker 4: sick of it. They want to turn it into a joke.

134
00:07:46,840 --> 00:07:49,160
Speaker 4: And that's not what impeach is supposed to be for,

135
00:07:49,400 --> 00:07:51,560
Speaker 4: supposed to be rare, supposed to be the last resort

136
00:07:51,720 --> 00:07:53,720
Speaker 4: the dealing with going abuse of power that cannot be

137
00:07:54,240 --> 00:07:55,440
Speaker 4: remedied in any other way.

138
00:07:56,120 --> 00:07:58,680
Speaker 1: The full House is going to vote on this, and

139
00:07:58,720 --> 00:08:02,640
Speaker 1: the Speaker the vote will take place as soon as possible,

140
00:08:03,160 --> 00:08:05,400
Speaker 1: and then it goes to the Senate. Does the Senate

141
00:08:05,480 --> 00:08:06,560
Speaker 1: have to hold a trial.

142
00:08:06,640 --> 00:08:09,720
Speaker 4: Then that is the big question. The Senate has to

143
00:08:09,760 --> 00:08:13,720
Speaker 4: do something now that doesn't necessarily mean hold the trial.

144
00:08:14,000 --> 00:08:17,040
Speaker 4: The Senate has various options. One is to consider point

145
00:08:17,080 --> 00:08:19,480
Speaker 4: of order to try and dismiss the articles basically for

146
00:08:19,600 --> 00:08:23,160
Speaker 4: failing to staying anything that's impeachable. Another option is to

147
00:08:23,440 --> 00:08:27,320
Speaker 4: have a trial committee authorized, which would then also consider

148
00:08:27,600 --> 00:08:30,040
Speaker 4: motions and brief while by the parties, one of which

149
00:08:30,120 --> 00:08:32,520
Speaker 4: might well be this ought to be dismissed because there's

150
00:08:32,600 --> 00:08:36,560
Speaker 4: no basis for it, And I think the likelihood is

151
00:08:36,600 --> 00:08:39,720
Speaker 4: that even in those scenarios I just described would be

152
00:08:39,920 --> 00:08:43,600
Speaker 4: the likeless possibility in the Senate because holding a trial

153
00:08:44,080 --> 00:08:47,360
Speaker 4: on these articles is absurd. As I mentioned before, it's

154
00:08:47,400 --> 00:08:51,480
Speaker 4: absurd because what the trial had been involved is putting

155
00:08:51,720 --> 00:08:55,600
Speaker 4: Biden's immigration policy on trial. That's never happened in American

156
00:08:55,679 --> 00:08:58,480
Speaker 4: history before, and it shouldn't happen here, and I don't

157
00:08:58,480 --> 00:08:59,800
Speaker 4: think the Senate's going to let it happen.

158
00:09:00,080 --> 00:09:02,480
Speaker 1: So the Senate could also just run out the clock

159
00:09:02,920 --> 00:09:04,240
Speaker 1: until the next election.

160
00:09:04,640 --> 00:09:06,120
Speaker 4: Well, I don't know that the Senate will run out

161
00:09:06,160 --> 00:09:08,560
Speaker 4: the clock. I think they'll reach some resolution. I find

162
00:09:08,600 --> 00:09:10,920
Speaker 4: it less likely they would just run out the clock.

163
00:09:11,120 --> 00:09:13,360
Speaker 4: I mean, for one reason that when you have an

164
00:09:13,400 --> 00:09:17,360
Speaker 4: impeachment by the rules of the Senate, that tends to

165
00:09:17,440 --> 00:09:20,440
Speaker 4: displace everything else on the agenda. So the Senate's going

166
00:09:20,520 --> 00:09:23,640
Speaker 4: an incentive, if anything, to get rid of this quickly.

167
00:09:24,120 --> 00:09:26,160
Speaker 4: I think the fact that there is no evidence, that

168
00:09:26,200 --> 00:09:29,520
Speaker 4: Republicans themselves are saying there's no evidence, is a fatal

169
00:09:29,559 --> 00:09:31,760
Speaker 4: problem with these impeachment articles. And then I also think

170
00:09:31,920 --> 00:09:34,960
Speaker 4: another fatal problem is impeachment's not supposed to be a

171
00:09:35,120 --> 00:09:38,040
Speaker 4: partisan weapon, supposed to have a lawful purpose, and there's

172
00:09:38,120 --> 00:09:39,200
Speaker 4: no lawful purpose here.

173
00:09:39,679 --> 00:09:43,680
Speaker 1: Also, some Democrats are pointing out that it's odd or

174
00:09:44,200 --> 00:09:48,200
Speaker 1: hypocritical to impeach Majorcus at the same time that he's

175
00:09:48,240 --> 00:09:51,559
Speaker 1: working with a group of Senate Republicans to craft a

176
00:09:51,640 --> 00:09:55,000
Speaker 1: bypart is in deal to update immigration laws, a deal

177
00:09:55,000 --> 00:09:57,360
Speaker 1: which House Republicans oppose.

178
00:09:58,000 --> 00:10:01,520
Speaker 4: Exactly, And that tells us something out House Republicans' agenda.

179
00:10:01,880 --> 00:10:04,280
Speaker 4: So I think when you know Speaker Mike Johnson says

180
00:10:04,280 --> 00:10:07,480
Speaker 4: the Senate deal on the border is dead and arrival

181
00:10:08,160 --> 00:10:11,160
Speaker 4: and then proceeds to prioritize an impeachment in New YORKUS,

182
00:10:11,920 --> 00:10:15,480
Speaker 4: that pretty much is telling us all we need to

183
00:10:15,520 --> 00:10:20,240
Speaker 4: know because impeaching New Yorkers will not solve the crisis

184
00:10:20,240 --> 00:10:24,199
Speaker 4: at the border. Infect Senator Langford, a Republican from Oklahoma, said,

185
00:10:24,320 --> 00:10:26,560
Speaker 4: it's just going to result in Biden putting somebody else

186
00:10:27,120 --> 00:10:29,640
Speaker 4: in the same office, and that person will do exactly

187
00:10:29,640 --> 00:10:33,040
Speaker 4: what ri Orcus did. So I think the fact that

188
00:10:33,320 --> 00:10:38,000
Speaker 4: the House Repubments do not want to consider any compromise

189
00:10:38,080 --> 00:10:40,560
Speaker 4: bill coming from the Senate tells us that they're not

190
00:10:40,679 --> 00:10:43,680
Speaker 4: really concerned with whatever is happening at the border, but

191
00:10:43,840 --> 00:10:46,400
Speaker 4: rather they want to obviously hurt Biden in his re

192
00:10:46,440 --> 00:10:47,240
Speaker 4: election campaign.

193
00:10:47,840 --> 00:10:51,920
Speaker 1: When was the last time anyone who was impeached was

194
00:10:52,200 --> 00:10:53,439
Speaker 1: convicted in the Senate?

195
00:10:54,040 --> 00:10:59,160
Speaker 4: Thomas Portius federal trial Judge Portis was convicted around twenty ten.

196
00:10:59,600 --> 00:11:01,880
Speaker 4: But I mean, and there's one Cabinet member in American

197
00:11:01,960 --> 00:11:05,400
Speaker 4: history who is impeached. That's William Beltnapp, who tried to

198
00:11:05,440 --> 00:11:09,000
Speaker 4: resign but the Senate proceeded to hold a trial anyway

199
00:11:09,040 --> 00:11:11,320
Speaker 4: because he'd been accused of bribery. But it turned out

200
00:11:11,400 --> 00:11:14,800
Speaker 4: a majority of the Senate essentially voted to quit him

201
00:11:14,800 --> 00:11:16,160
Speaker 4: because he was no longer in offered.

202
00:11:16,400 --> 00:11:19,640
Speaker 1: And to put the Majorcis impeachment in context, there have

203
00:11:19,720 --> 00:11:23,440
Speaker 1: only been twenty one impeachments in our country's history, and

204
00:11:23,559 --> 00:11:26,160
Speaker 1: only eight were found guilty by the Senate and removed

205
00:11:26,200 --> 00:11:30,559
Speaker 1: from office. And they were all federal judges like Judge Portius.

206
00:11:30,840 --> 00:11:32,960
Speaker 1: Thanks so much for being on the show, Michael. That's

207
00:11:32,960 --> 00:11:36,400
Speaker 1: Professor Michael Gerhardt of the University of North Carolina School

208
00:11:36,400 --> 00:11:39,240
Speaker 1: of Law coming up next on the Bloomberg Law Show.

209
00:11:39,800 --> 00:11:43,480
Speaker 1: After the latest two point three billion dollar jury verdict

210
00:11:43,559 --> 00:11:47,840
Speaker 1: against Beyer over its Roundup weed killer, the question is

211
00:11:48,440 --> 00:11:52,439
Speaker 1: does the company need a new legal strategy. I'm June

212
00:11:52,440 --> 00:11:57,000
Speaker 1: Grosso and you're listening to Bloomberg. In the last three months,

213
00:11:57,080 --> 00:12:00,760
Speaker 1: Beyer has been hammered by jury verdicts totally almost four

214
00:12:00,800 --> 00:12:04,720
Speaker 1: billion dollars over its round Up weed killer. The latest

215
00:12:04,720 --> 00:12:08,120
Speaker 1: courtroom loss was its biggest since round up cases started

216
00:12:08,160 --> 00:12:11,839
Speaker 1: going to trial about five years ago, with the Pennsylvania

217
00:12:11,960 --> 00:12:15,840
Speaker 1: jury awarding two point twenty five billion dollars to a

218
00:12:15,880 --> 00:12:19,560
Speaker 1: former round Up user who blamed his cancer diagnosis on

219
00:12:19,720 --> 00:12:23,680
Speaker 1: long term exposure to the herbicide. That prompted a fresh

220
00:12:23,720 --> 00:12:27,040
Speaker 1: slump in Beyer shares as investors worried about the more

221
00:12:27,080 --> 00:12:31,800
Speaker 1: than fifty thousand round up claims outstanding, and that raises

222
00:12:31,840 --> 00:12:35,280
Speaker 1: the question of whether Beayer needs a new legal strategy

223
00:12:35,720 --> 00:12:38,800
Speaker 1: and what new game plan is even available. Joining me

224
00:12:38,880 --> 00:12:42,320
Speaker 1: is an expert in mass tort litigation, Elizabeth Birch, a

225
00:12:42,360 --> 00:12:45,880
Speaker 1: professor at the University of Georgia School of Law. So

226
00:12:46,080 --> 00:12:49,960
Speaker 1: Bayer's latest courtroom loss was its biggest since round up

227
00:12:50,040 --> 00:12:54,280
Speaker 1: cases started going to trial. Aren't companies supposed to learn

228
00:12:54,440 --> 00:12:58,320
Speaker 1: from past trials and avoid these huge verdicts.

229
00:12:58,240 --> 00:13:00,920
Speaker 5: One would certainly hope. So although I think you know,

230
00:13:01,440 --> 00:13:04,720
Speaker 5: Bear would probably mention that they've won ten of the

231
00:13:04,760 --> 00:13:07,920
Speaker 5: last sixteen trials, I think their hope certainly is to

232
00:13:07,960 --> 00:13:10,280
Speaker 5: try to get a case like this reverse on appeal,

233
00:13:10,320 --> 00:13:12,600
Speaker 5: and there is some precedent for that in the past.

234
00:13:12,880 --> 00:13:17,240
Speaker 5: Back in twenty nineteen, a California jury awarded roughly two

235
00:13:17,240 --> 00:13:20,720
Speaker 5: point five billion dollars in damages that ended up getting

236
00:13:20,720 --> 00:13:23,240
Speaker 5: slashed to eighty seven million. So it's still a lot

237
00:13:23,240 --> 00:13:25,319
Speaker 5: of money, but certainly not money.

238
00:13:25,080 --> 00:13:27,800
Speaker 1: With a bee, you know, beyor it's vowed to appeal,

239
00:13:27,880 --> 00:13:31,319
Speaker 1: express confidence that will prevail, and it says it's not

240
00:13:31,520 --> 00:13:34,520
Speaker 1: giving up as far as trying cases, But what is

241
00:13:34,559 --> 00:13:37,440
Speaker 1: it strategy? Because it did settle, it did spend about

242
00:13:37,520 --> 00:13:41,120
Speaker 1: ten billion on settling one hundred and fifty thousand cases.

243
00:13:41,800 --> 00:13:45,720
Speaker 5: You're right, it absolutely did, and it also indicated I

244
00:13:45,720 --> 00:13:47,640
Speaker 5: think a year or two ago, that it was planning

245
00:13:47,679 --> 00:13:49,920
Speaker 5: to pull round Up off the market in the next

246
00:13:49,920 --> 00:13:52,640
Speaker 5: couple of years. I think the hope being that at

247
00:13:52,640 --> 00:13:55,680
Speaker 5: some point these cases will stop. But the difficulty of

248
00:13:55,679 --> 00:13:59,240
Speaker 5: that bear's facing is that there's a long gap between

249
00:13:59,440 --> 00:14:02,959
Speaker 5: exposure a round Up and then the potential for developing

250
00:14:03,000 --> 00:14:05,800
Speaker 5: some sort of a non Hodgkinson bomar, a different type

251
00:14:05,840 --> 00:14:08,440
Speaker 5: of cancer and these types of cases. So it's really

252
00:14:08,480 --> 00:14:10,200
Speaker 5: hard to say, you know, even if we were to

253
00:14:10,240 --> 00:14:13,320
Speaker 5: pull round Up off the market tomorrow, when the litigation

254
00:14:13,480 --> 00:14:15,120
Speaker 5: might end, this isn't.

255
00:14:14,880 --> 00:14:19,840
Speaker 1: The only multi billion dollar verdict in a mass torque case.

256
00:14:20,280 --> 00:14:23,280
Speaker 1: Is there a reason why these verdicts are reaching what,

257
00:14:23,520 --> 00:14:26,200
Speaker 1: you know, i'd consider astronomical figures.

258
00:14:26,680 --> 00:14:29,080
Speaker 5: Yeah, I mean, you know, the juries are not happy

259
00:14:29,120 --> 00:14:31,920
Speaker 5: with the evidence that they hear. There is evidence that

260
00:14:31,960 --> 00:14:34,680
Speaker 5: they are wanting to punish the company. So this isn't

261
00:14:34,760 --> 00:14:37,239
Speaker 5: just sort of a slap on the risk, let's compensate

262
00:14:37,280 --> 00:14:40,160
Speaker 5: the victim type of damage award. This is a you've

263
00:14:40,160 --> 00:14:43,200
Speaker 5: done something really wrong and we're angry about it kind

264
00:14:43,240 --> 00:14:43,720
Speaker 5: of award.

265
00:14:44,400 --> 00:14:48,280
Speaker 1: It certainly seems they're angry. So theyer is facing now.

266
00:14:48,920 --> 00:14:52,520
Speaker 1: Ten trials are expected this year in state courts. It

267
00:14:52,600 --> 00:14:55,960
Speaker 1: says the companies committed to trying round up cases based

268
00:14:56,000 --> 00:15:00,600
Speaker 1: on the strength of the science, favorable regulatory assessments worldwide,

269
00:15:00,640 --> 00:15:05,480
Speaker 1: and approven record of success at trial. It was successful

270
00:15:05,720 --> 00:15:09,760
Speaker 1: until I think it was October when plaintiffs started racking

271
00:15:09,840 --> 00:15:14,800
Speaker 1: up victories in California, Missouri, and Pennsylvania state courts. Did

272
00:15:14,840 --> 00:15:18,200
Speaker 1: something happen where the cases started to turn against Beyer?

273
00:15:18,720 --> 00:15:21,480
Speaker 5: You know, it's hard to pinpoint a particular sea change.

274
00:15:21,520 --> 00:15:25,160
Speaker 5: They were certainly successful in settling a bulk of those

275
00:15:25,200 --> 00:15:28,640
Speaker 5: cases through what's known as the multi district litigation process.

276
00:15:28,720 --> 00:15:31,320
Speaker 5: That's at the federal level, but where they're really facing

277
00:15:31,320 --> 00:15:34,840
Speaker 5: pressure now is at the state level, particularly in jurisdictions

278
00:15:35,120 --> 00:15:36,280
Speaker 5: like Philadelphia.

279
00:15:36,360 --> 00:15:39,200
Speaker 1: Do you know, does Beyer use the same legal team

280
00:15:39,280 --> 00:15:42,800
Speaker 1: for these cases or do they change up legal teams?

281
00:15:43,520 --> 00:15:45,080
Speaker 5: You know, I don't know the answer to that. I

282
00:15:45,120 --> 00:15:48,440
Speaker 5: haven't followed who their lead lawyers are in these cases.

283
00:15:48,480 --> 00:15:52,200
Speaker 5: But it's not uncommon for there to be several big

284
00:15:52,280 --> 00:15:55,880
Speaker 5: law firms involved in handling a litigation.

285
00:15:55,600 --> 00:16:00,280
Speaker 1: Like this, does beyor have enough money in its knowation

286
00:16:00,560 --> 00:16:04,000
Speaker 1: coffers to settle these cases or to pay them.

287
00:16:03,800 --> 00:16:08,360
Speaker 5: Even well, I mean that certainly remains to be seen.

288
00:16:08,880 --> 00:16:12,800
Speaker 5: No money goes to the victims while cases are on appeal,

289
00:16:12,960 --> 00:16:15,600
Speaker 5: and as you know, appeals can last for a couple

290
00:16:15,680 --> 00:16:20,120
Speaker 5: of years. So certainly there's that question if they're going

291
00:16:20,160 --> 00:16:22,960
Speaker 5: to continue to face these types of billion dollar verdicts,

292
00:16:22,960 --> 00:16:25,359
Speaker 5: whether at some point it's going to become an issue.

293
00:16:25,600 --> 00:16:29,120
Speaker 5: But they haven't indicated that they are considering filing for

294
00:16:29,200 --> 00:16:31,840
Speaker 5: bankruptcy to my knowledge, And as you said.

295
00:16:31,680 --> 00:16:35,320
Speaker 1: Even if they settle some cases, because Roundup is still

296
00:16:35,360 --> 00:16:39,560
Speaker 1: on the market, they're exposed to future litigation exactly.

297
00:16:40,080 --> 00:16:43,320
Speaker 5: So you can't sue just because you've been exposed to

298
00:16:43,360 --> 00:16:46,680
Speaker 5: a chemical. You can only sue once something has manifested,

299
00:16:46,720 --> 00:16:50,360
Speaker 5: some sort of injury has manifested, which means that if

300
00:16:50,400 --> 00:16:53,440
Speaker 5: it takes some you know, ten to fourteen years between

301
00:16:53,480 --> 00:16:56,520
Speaker 5: the exposure to the product and the development of the disease,

302
00:16:57,040 --> 00:16:58,640
Speaker 5: that we're going to be looking at these types of

303
00:16:58,720 --> 00:17:00,000
Speaker 5: lawsuits for many years to come.

304
00:17:01,280 --> 00:17:04,440
Speaker 1: Do you know why Bayer didn't take round Up off

305
00:17:04,520 --> 00:17:07,040
Speaker 1: the market? What went into their calculation.

306
00:17:08,400 --> 00:17:10,840
Speaker 5: I can only assume it's because it's still a pretty

307
00:17:10,960 --> 00:17:14,120
Speaker 5: big seller. You know, when they contemplated taking it off

308
00:17:14,119 --> 00:17:16,359
Speaker 5: the market and indicated that they were going to take

309
00:17:16,400 --> 00:17:18,960
Speaker 5: it off the market in the future, they were trying

310
00:17:18,960 --> 00:17:21,879
Speaker 5: to come up with something that was equally effective at

311
00:17:21,960 --> 00:17:24,840
Speaker 5: killing weeds, and that was going to take some time

312
00:17:24,880 --> 00:17:27,960
Speaker 5: to develop. With my understanding, so I think they're trying

313
00:17:28,000 --> 00:17:30,199
Speaker 5: to have some sort of replacement for it as soon

314
00:17:30,240 --> 00:17:31,399
Speaker 5: as they pull it from the shelf.

315
00:17:32,320 --> 00:17:38,600
Speaker 1: And there's contradictory scientific evidence and opinions from different agencies

316
00:17:39,359 --> 00:17:44,240
Speaker 1: about whether the chemical in roundup is a carcinogen dravid

317
00:17:44,359 --> 00:17:46,520
Speaker 1: and whether it's cancerous.

318
00:17:46,840 --> 00:17:50,719
Speaker 5: That's correct, and I think that's part of what juries

319
00:17:50,840 --> 00:17:53,800
Speaker 5: might be struggling with and maybe the reason for the

320
00:17:53,920 --> 00:17:56,600
Speaker 5: ten wins that they've had at trials. So back in

321
00:17:56,640 --> 00:18:00,600
Speaker 5: twenty fifteen, part of the World Health Organization shown called

322
00:18:00,640 --> 00:18:05,280
Speaker 5: the International Agency for Research on Cancer, classified the chemical

323
00:18:05,320 --> 00:18:08,560
Speaker 5: that's used in round Up, glycophosphate, as part of a

324
00:18:08,720 --> 00:18:13,320
Speaker 5: chemical that is probably carcinogenic in humans. But the EPA

325
00:18:13,440 --> 00:18:16,119
Speaker 5: back in twenty ten said there were no risks to

326
00:18:16,240 --> 00:18:19,600
Speaker 5: human help. So we really have some conflicting findings between

327
00:18:19,640 --> 00:18:21,200
Speaker 5: different organizations.

328
00:18:21,720 --> 00:18:26,320
Speaker 1: Have plaintiffs attorneys had a different strategy in the latest cases.

329
00:18:27,080 --> 00:18:29,800
Speaker 5: You know, I think every case is probably unique in

330
00:18:29,840 --> 00:18:32,760
Speaker 5: the sense that you're really highlighting the facts of your

331
00:18:32,880 --> 00:18:35,520
Speaker 5: particular client. And I think what we see in this

332
00:18:35,720 --> 00:18:38,080
Speaker 5: latest case is not just the use of kind of

333
00:18:38,119 --> 00:18:41,159
Speaker 5: garden variety round up on a half acre plot of land,

334
00:18:41,680 --> 00:18:44,960
Speaker 5: but sustained use over a fairly large plot of land,

335
00:18:45,520 --> 00:18:49,440
Speaker 5: multiple acres and many, many gallons of round up braid

336
00:18:49,480 --> 00:18:51,600
Speaker 5: at a time. So you really do see a high

337
00:18:51,680 --> 00:18:55,040
Speaker 5: volume of exposure. And it's possible that the cases that

338
00:18:55,160 --> 00:18:58,800
Speaker 5: have been lost are cases with more casual use.

339
00:18:59,320 --> 00:19:03,080
Speaker 1: So we talk about the possibility of future cases. But

340
00:19:03,600 --> 00:19:06,600
Speaker 1: plaintiffs who sue in the future, are they on notice

341
00:19:07,160 --> 00:19:11,200
Speaker 1: of the possible cancer causing agents in roundup?

342
00:19:11,600 --> 00:19:13,800
Speaker 5: So this is one of the questions that we'll have

343
00:19:13,840 --> 00:19:15,840
Speaker 5: to see in the future. You know that the cases

344
00:19:15,880 --> 00:19:19,879
Speaker 5: that we're seeing right now don't have notice about this

345
00:19:20,040 --> 00:19:22,920
Speaker 5: potential for cancer. But in tort law, there's something called

346
00:19:22,920 --> 00:19:26,760
Speaker 5: the assumption of the risk and defense called comparative fault,

347
00:19:27,119 --> 00:19:29,520
Speaker 5: which means, you know, for example, that if you're a

348
00:19:29,560 --> 00:19:31,840
Speaker 5: smoker and you've been smoking for a long time. But

349
00:19:31,920 --> 00:19:34,720
Speaker 5: you know that smoking can cause lung cancer, then you

350
00:19:34,800 --> 00:19:38,120
Speaker 5: bear some sort of fault in continuing to smoke. So

351
00:19:38,160 --> 00:19:41,119
Speaker 5: we may see defenses like that becoming more successful in

352
00:19:41,160 --> 00:19:41,640
Speaker 5: the future.

353
00:19:42,400 --> 00:19:48,000
Speaker 1: Another front that Behar still hopes will be successful is

354
00:19:48,160 --> 00:19:53,520
Speaker 1: convincing US appeals courts that federal law preempts state based claims.

355
00:19:54,520 --> 00:19:58,439
Speaker 5: Well, the preemption question has been out there for a

356
00:19:58,480 --> 00:20:01,960
Speaker 5: long time. It's not some thing that they've been successful

357
00:20:02,000 --> 00:20:05,400
Speaker 5: on thus far, and so you know, I think that's

358
00:20:05,440 --> 00:20:08,160
Speaker 5: still a really open question that remains to be seen,

359
00:20:08,280 --> 00:20:10,159
Speaker 5: but they haven't gotten a lot of traction with it.

360
00:20:10,720 --> 00:20:15,000
Speaker 1: Would it be possible for Bayer to negotiate a global

361
00:20:15,200 --> 00:20:16,960
Speaker 1: settlement of these claims.

362
00:20:17,600 --> 00:20:19,600
Speaker 5: I think it's going to be really difficult for them

363
00:20:19,640 --> 00:20:22,879
Speaker 5: at this point. They certainly tried to negotiate a global

364
00:20:23,280 --> 00:20:26,360
Speaker 5: settlement several years ago when they tried to certify these

365
00:20:26,440 --> 00:20:29,199
Speaker 5: cases as a class action in federal court. That was

366
00:20:29,240 --> 00:20:32,080
Speaker 5: a move that was denied by the judge and the

367
00:20:32,119 --> 00:20:35,760
Speaker 5: federal multi district litigation. It would be really difficult, I

368
00:20:35,800 --> 00:20:39,560
Speaker 5: think without plaine of consent and Plaine offs attorney's consent

369
00:20:39,720 --> 00:20:42,520
Speaker 5: to get any sort of a global settlement. Given that

370
00:20:42,560 --> 00:20:46,280
Speaker 5: we're now looking at individual state court litigation, the round

371
00:20:46,359 --> 00:20:47,080
Speaker 5: up litigation.

372
00:20:47,520 --> 00:20:51,000
Speaker 1: Is it creating a cloud over the company itself?

373
00:20:51,400 --> 00:20:54,200
Speaker 5: Certainly? I mean, you know, we see shares of Bear

374
00:20:54,440 --> 00:20:57,880
Speaker 5: falling almost three percent before the jury announce their verdict,

375
00:20:58,400 --> 00:21:02,480
Speaker 5: and the sharehold are certainly watching this. So this is

376
00:21:02,640 --> 00:21:05,160
Speaker 5: a litigation that is a thorn in the side of Bear.

377
00:21:06,320 --> 00:21:09,400
Speaker 1: If you were advising Beyer, how would you advise them

378
00:21:09,440 --> 00:21:13,040
Speaker 1: to handle all these cases? I mean, try to settle.

379
00:21:14,000 --> 00:21:17,480
Speaker 5: I mean, it's a real problem. There's not a way

380
00:21:17,520 --> 00:21:20,919
Speaker 5: to get any kind of global resolution based on the

381
00:21:20,960 --> 00:21:24,080
Speaker 5: types of things that we know now. So the easiest

382
00:21:24,080 --> 00:21:26,080
Speaker 5: way to try to do something like that would be

383
00:21:26,119 --> 00:21:29,919
Speaker 5: the file bankruptcy. But Bear has not indicated that I

384
00:21:30,040 --> 00:21:31,919
Speaker 5: know of that they have any sort of plans of

385
00:21:31,920 --> 00:21:34,800
Speaker 5: filing bankruptcy in the future. But in order to try

386
00:21:34,840 --> 00:21:37,120
Speaker 5: to get rid of state and federal cases and any

387
00:21:37,200 --> 00:21:41,160
Speaker 5: kind of holistic settlement, most defendants are looking at bankruptcy.

388
00:21:41,840 --> 00:21:45,199
Speaker 1: Johnson and Johnson tried to get the Supreme Court to

389
00:21:45,440 --> 00:21:48,879
Speaker 1: here it's appeal over a two point one billion dollar

390
00:21:49,359 --> 00:21:54,040
Speaker 1: chalk award, and the court refused. That was back in

391
00:21:54,119 --> 00:21:58,919
Speaker 1: twenty twenty one. Remind us of where the court stands

392
00:21:59,160 --> 00:22:01,400
Speaker 1: on these damage awards.

393
00:22:02,640 --> 00:22:07,080
Speaker 5: The Supreme Court back in the nineties decided several cases

394
00:22:07,320 --> 00:22:11,800
Speaker 5: a trilogy of cases on punitive damages that capped essentially

395
00:22:11,880 --> 00:22:15,919
Speaker 5: capped the ratio between compensatory damages and punitive damages is

396
00:22:15,920 --> 00:22:18,399
Speaker 5: no greater than nine to one. Now, there can certainly

397
00:22:18,400 --> 00:22:21,719
Speaker 5: be some exceptions to that, but in general, the Supreme

398
00:22:21,760 --> 00:22:24,000
Speaker 5: Court has weighed in. So this is what we think

399
00:22:24,280 --> 00:22:27,119
Speaker 5: would be appropriate. But the Supreme Court really has not

400
00:22:27,200 --> 00:22:30,720
Speaker 5: gotten involved in these types of mass towards settlements. In fact,

401
00:22:30,760 --> 00:22:34,639
Speaker 5: the closest that we've really seen recently has been the

402
00:22:34,760 --> 00:22:38,040
Speaker 5: argument in front of the Supreme Court over the Purdue pharmacate,

403
00:22:38,240 --> 00:22:41,600
Speaker 5: where the Stackler family is trying to fre ride on

404
00:22:41,640 --> 00:22:45,600
Speaker 5: the bankruptcy of Purdue to avoid civil liability for the

405
00:22:45,640 --> 00:22:46,639
Speaker 5: opioid epidemics.

406
00:22:47,440 --> 00:22:53,080
Speaker 1: Can the round Up litigation be compared to the Tauk litigation?

407
00:22:53,440 --> 00:22:54,160
Speaker 1: Is it similar?

408
00:22:55,480 --> 00:22:59,240
Speaker 5: It is similar Like round Up. There is a latency

409
00:22:59,320 --> 00:23:03,639
Speaker 5: period in town, particularly between the exposure to tell Some

410
00:23:03,680 --> 00:23:07,840
Speaker 5: would say that's exposure to taut laced with asbestos, between

411
00:23:08,040 --> 00:23:11,439
Speaker 5: the exposure and the development of the disease. So I

412
00:23:11,440 --> 00:23:14,000
Speaker 5: think both Johnson and Johnson and the tout cases and

413
00:23:14,080 --> 00:23:17,280
Speaker 5: there in the round up cases are struggling with how

414
00:23:17,280 --> 00:23:20,320
Speaker 5: do we get closure in a case like this where

415
00:23:20,440 --> 00:23:22,280
Speaker 5: there are likely to be in many more cases in

416
00:23:22,359 --> 00:23:23,920
Speaker 5: the pipeline for years to come.

417
00:23:24,600 --> 00:23:28,119
Speaker 1: I've been noticing recently that not just in this area,

418
00:23:28,200 --> 00:23:32,000
Speaker 1: but in many areas, there are just stunning jury verdicts.

419
00:23:32,680 --> 00:23:32,840
Speaker 6: You know.

420
00:23:32,920 --> 00:23:35,960
Speaker 5: I think what we see oftentimes is in the headlines.

421
00:23:35,960 --> 00:23:39,280
Speaker 5: We get these astronomical verdicts because they are so newsworthy

422
00:23:39,320 --> 00:23:41,840
Speaker 5: and they're so fun to report. But it's important to

423
00:23:41,840 --> 00:23:44,560
Speaker 5: remember that in about eighty percent of the cases, judges

424
00:23:44,600 --> 00:23:47,679
Speaker 5: and juries actually agree on what the amount should be.

425
00:23:48,160 --> 00:23:50,600
Speaker 5: And so when you see verdicts like this, they aren't

426
00:23:50,600 --> 00:23:53,320
Speaker 5: necessarily the run of the mill cases. They're typically some

427
00:23:53,480 --> 00:23:56,399
Speaker 5: kind of an aberration, and there might well be a

428
00:23:56,480 --> 00:23:57,080
Speaker 5: reason for that.

429
00:23:57,480 --> 00:23:59,359
Speaker 1: Thanks so much for being on the show, Elizabeth, then

430
00:23:59,440 --> 00:24:04,000
Speaker 1: giving us insights into this complex area of litigation. As

431
00:24:04,040 --> 00:24:08,080
Speaker 1: Professor Elizabeth Birch of the University of Georgia School of Law.

432
00:24:08,600 --> 00:24:12,280
Speaker 1: Coming up next on The Bloomberg Law Show, Harvard University

433
00:24:12,359 --> 00:24:17,040
Speaker 1: is facing congressional investigations as well as an investigation by

434
00:24:17,040 --> 00:24:20,760
Speaker 1: the Department of Education. I'm June Grossen, you're listening to Bloomberg.

435
00:24:21,200 --> 00:24:25,960
Speaker 1: Harvard University is still struggling to resolve tensions after President

436
00:24:26,000 --> 00:24:30,600
Speaker 1: Claudine Gay resigned last month amid an onslaught of criticism

437
00:24:30,640 --> 00:24:34,760
Speaker 1: over her response to anti Semitism as well as accusations

438
00:24:34,800 --> 00:24:38,920
Speaker 1: of plagiarism in her scholarship. The school is under investigation

439
00:24:39,080 --> 00:24:42,960
Speaker 1: by congressional committees and the Department of Education. Joining me

440
00:24:43,040 --> 00:24:46,920
Speaker 1: is Janet Lauren, the Bloomberg Higher Education and Finance reporter.

441
00:24:47,840 --> 00:24:51,440
Speaker 1: How many House committees are investigating Harvard.

442
00:24:52,080 --> 00:24:56,960
Speaker 6: So two congressional committees are investigating Harvard. The House Education

443
00:24:57,119 --> 00:25:00,199
Speaker 6: and the Workforce Committee has two inquiries going on on

444
00:25:00,760 --> 00:25:03,840
Speaker 6: and the House Waves and Means Committee has has its

445
00:25:03,880 --> 00:25:06,879
Speaker 6: own inquiry. And you'll remember that the House Ways and

446
00:25:06,960 --> 00:25:11,000
Speaker 6: Means Committee called Harvard President Claudine Gay, as well as

447
00:25:11,000 --> 00:25:14,560
Speaker 6: the presidents of MIT and PEN for that now infamous

448
00:25:14,600 --> 00:25:16,040
Speaker 6: hearing on December fifth.

449
00:25:16,160 --> 00:25:20,080
Speaker 1: And it's sort of amazing that two of them were

450
00:25:20,119 --> 00:25:21,320
Speaker 1: fired or had to leave.

451
00:25:22,040 --> 00:25:25,800
Speaker 6: Yes, And there's been pressure on the third president, Sally

452
00:25:25,880 --> 00:25:29,000
Speaker 6: Cornbluth at MIT, for her to step down, but her

453
00:25:29,040 --> 00:25:31,080
Speaker 6: board has been pretty supportive.

454
00:25:31,200 --> 00:25:34,080
Speaker 7: They came out right after the hearing in support.

455
00:25:33,760 --> 00:25:37,679
Speaker 1: Of her, and the Harvard board was pretty supportive until

456
00:25:37,720 --> 00:25:41,760
Speaker 1: these plagiarism allegations came up with gay Right.

457
00:25:42,240 --> 00:25:45,880
Speaker 6: Yes, they came out on December twelfth with a statement

458
00:25:45,920 --> 00:25:48,000
Speaker 6: that they support her and she was the right leader

459
00:25:48,080 --> 00:25:52,520
Speaker 6: for Harvard, and then you started seeing more plagiarism charges

460
00:25:52,560 --> 00:25:55,480
Speaker 6: coming out. But also there was a couple of other

461
00:25:55,560 --> 00:25:58,280
Speaker 6: things that we reported on and we broke the news

462
00:25:58,320 --> 00:26:04,240
Speaker 6: on about Harvard, including a seventeen percent decline in early applications,

463
00:26:04,640 --> 00:26:07,639
Speaker 6: this second congressional inquiry that came up at the end

464
00:26:07,680 --> 00:26:12,040
Speaker 6: of December, and then another big donor pulled out, Len Blivotnik,

465
00:26:12,080 --> 00:26:15,480
Speaker 6: who had donated almost three hundred million dollars to Harvard.

466
00:26:15,640 --> 00:26:18,280
Speaker 6: And we also wrote a lot about the constrained finances.

467
00:26:18,320 --> 00:26:21,800
Speaker 6: So while certainly plagiarism was taking up a lot of

468
00:26:21,840 --> 00:26:24,760
Speaker 6: space and energy, there are also a lot of financial

469
00:26:24,840 --> 00:26:27,080
Speaker 6: constraints to Harvard. And you think, well, they have a

470
00:26:27,119 --> 00:26:31,120
Speaker 6: fifty one billion dollar endowment, how could that be possible? Well,

471
00:26:31,200 --> 00:26:34,240
Speaker 6: because they rely quite a lot on fundraising. They've raised

472
00:26:34,280 --> 00:26:37,840
Speaker 6: over a billion dollars every year since twenty fourteen, and

473
00:26:38,200 --> 00:26:41,080
Speaker 6: people have been pulling back. Now, granted we're not going

474
00:26:41,160 --> 00:26:43,520
Speaker 6: to know the full numbers until June thirtieth.

475
00:26:43,160 --> 00:26:43,720
Speaker 7: Of this year.

476
00:26:44,080 --> 00:26:47,440
Speaker 6: Their endowment returns have not been great. They haven't seen

477
00:26:47,480 --> 00:26:50,320
Speaker 6: these double digit returns for many years. Of course, everyone

478
00:26:50,320 --> 00:26:53,360
Speaker 6: did in twenty twenty one, but Harvard lagged its peers.

479
00:26:53,800 --> 00:26:56,959
Speaker 6: And they also are spending a lot, and also one

480
00:26:57,040 --> 00:27:01,080
Speaker 6: of their biggest donors is the federal government. Eleven percent

481
00:27:01,160 --> 00:27:03,840
Speaker 6: of their budget last year came from the federal government

482
00:27:04,280 --> 00:27:08,760
Speaker 6: in scientific research grants and other grants. And that money

483
00:27:08,800 --> 00:27:11,919
Speaker 6: also doesn't include one hundred and five million dollars in

484
00:27:12,000 --> 00:27:16,440
Speaker 6: federal loans that the government gave to its students. So

485
00:27:16,760 --> 00:27:20,880
Speaker 6: they're very generous in financial aid for undergraduates, but graduate students.

486
00:27:20,560 --> 00:27:21,159
Speaker 1: Have to borrow.

487
00:27:21,640 --> 00:27:25,960
Speaker 6: So these congressional hearings and inquiries, and then we haven't

488
00:27:25,960 --> 00:27:29,600
Speaker 6: even talked about the Education Department separate in quiry. There's

489
00:27:29,640 --> 00:27:33,120
Speaker 6: a lot going on in Harvard. Their legal bills are mounting,

490
00:27:33,200 --> 00:27:35,560
Speaker 6: and they added an additional law firm.

491
00:27:35,320 --> 00:27:37,880
Speaker 7: To help them with a congressional committee work.

492
00:27:38,119 --> 00:27:42,120
Speaker 1: So Wilmer Hale, that law firm was the only law

493
00:27:42,119 --> 00:27:45,399
Speaker 1: firm who prepared Gay for her testimonies.

494
00:27:45,440 --> 00:27:49,280
Speaker 6: At that's my understanding, But a place like Harvard is

495
00:27:49,480 --> 00:27:52,959
Speaker 6: very complicated, so you know, wilmer Hale, we noted a

496
00:27:53,000 --> 00:27:56,280
Speaker 6: ton of legal work for the affirmative action case, and

497
00:27:56,320 --> 00:28:00,359
Speaker 6: that was another legal challenge that Harvard loss that had

498
00:28:00,440 --> 00:28:03,119
Speaker 6: I'm sure racked up a lot of legal expenses, and

499
00:28:03,200 --> 00:28:05,800
Speaker 6: on June twenty nine, Harvard lost that case in the

500
00:28:05,840 --> 00:28:06,960
Speaker 6: Supreme Court.

501
00:28:07,520 --> 00:28:11,120
Speaker 1: Was wilmer Hale doing this work pro bono? So?

502
00:28:11,840 --> 00:28:15,320
Speaker 6: One attorney at wilmer Hale, Bill Lee, used to be

503
00:28:15,480 --> 00:28:17,919
Speaker 6: the chairman of their governing board, which is called the

504
00:28:17,920 --> 00:28:22,080
Speaker 6: Harvard Corporation, and his title with senior fellow and Harvard

505
00:28:21,800 --> 00:28:25,960
Speaker 6: had discussed that he personally did not charge for his

506
00:28:26,000 --> 00:28:29,320
Speaker 6: own time advising Harvard in the firmative ash case. But

507
00:28:29,359 --> 00:28:32,680
Speaker 6: that doesn't mean the entire law firm wasn't big paid.

508
00:28:32,840 --> 00:28:33,959
Speaker 6: My understanding as it was.

509
00:28:34,240 --> 00:28:38,240
Speaker 1: And they were also advising the Penn president.

510
00:28:38,720 --> 00:28:41,160
Speaker 7: Yes, they did advise the Penn president.

511
00:28:41,200 --> 00:28:44,320
Speaker 6: And they're also advising Penn on their ways and means

512
00:28:44,360 --> 00:28:46,400
Speaker 6: in coiry. And I should note that ways and means

513
00:28:46,480 --> 00:28:51,720
Speaker 6: is not only Harvard, it's also Penn, MIT and Cornell.

514
00:28:52,360 --> 00:28:54,600
Speaker 1: Is there something about wilmer Hale. Do they have a

515
00:28:54,600 --> 00:28:58,520
Speaker 1: specific department that handles education. Is there a reason why

516
00:28:58,560 --> 00:29:00,440
Speaker 1: they're so involved.

517
00:29:00,240 --> 00:29:03,840
Speaker 6: Well, my understanding is there was a connection with Bill Lee,

518
00:29:04,720 --> 00:29:07,520
Speaker 6: again is the senior fellow, former chairman of the board

519
00:29:07,680 --> 00:29:10,360
Speaker 6: at Harvard, and he did a lot of the work

520
00:29:10,360 --> 00:29:14,840
Speaker 6: for the admissions case, so perhaps they retained them to

521
00:29:14,840 --> 00:29:17,160
Speaker 6: do other work. I know that Ropes and Gray had

522
00:29:17,160 --> 00:29:20,800
Speaker 6: been a longtime firm for Harvard. But again there's a

523
00:29:20,800 --> 00:29:26,200
Speaker 6: lot of legal work zoning, you know, real estate investments.

524
00:29:26,200 --> 00:29:29,320
Speaker 6: It's a six billion dollar operation, so they must have

525
00:29:29,360 --> 00:29:31,440
Speaker 6: a lot of different firms. And then one of the

526
00:29:31,560 --> 00:29:35,640
Speaker 6: reports about plagiarism talked about another firm that they had

527
00:29:35,680 --> 00:29:40,080
Speaker 6: employed during you know, the questions and one of the

528
00:29:40,120 --> 00:29:45,120
Speaker 6: congressional reports that came out, Harvard released a summary said

529
00:29:45,200 --> 00:29:48,280
Speaker 6: another firm that they had employed was Claire Locke and

530
00:29:48,320 --> 00:29:51,320
Speaker 6: that was again specifically about the plagiarism charge.

531
00:29:51,520 --> 00:29:54,960
Speaker 1: So now they're hiring another firm, King and Spaulding to

532
00:29:55,040 --> 00:29:57,040
Speaker 1: come on and work with Wilmer Hale.

533
00:29:57,280 --> 00:29:59,080
Speaker 7: Yes, that is correct, So now.

534
00:29:58,920 --> 00:30:03,480
Speaker 1: Where does the plagiar investigations stand? Is it over?

535
00:30:04,080 --> 00:30:08,080
Speaker 6: So that was granted an extension on December twenty ninth,

536
00:30:08,200 --> 00:30:13,000
Speaker 6: they turned in reports to you know, addressing the inquiry, and.

537
00:30:12,960 --> 00:30:14,480
Speaker 7: We don't know where that stands.

538
00:30:15,320 --> 00:30:18,520
Speaker 6: And then the Anti Semitism Inquiry, and we had a

539
00:30:18,560 --> 00:30:22,480
Speaker 6: story about that as well, and that story was about

540
00:30:22,760 --> 00:30:27,440
Speaker 6: Harvard's inadequate answer to the probe. And you know, if

541
00:30:27,440 --> 00:30:29,880
Speaker 6: you read the statement that Virginia Fox, the chairman of

542
00:30:29,880 --> 00:30:32,800
Speaker 6: the committee, again the very person who called the December

543
00:30:33,000 --> 00:30:36,880
Speaker 6: fifth hearing, she said that Harvard could face compulsory measures

544
00:30:37,280 --> 00:30:40,520
Speaker 6: if it fails to cooperate with the inquiry, and that means,

545
00:30:40,680 --> 00:30:42,880
Speaker 6: you know, they have the authority to issue subpoenis.

546
00:30:43,440 --> 00:30:50,040
Speaker 1: Is this usual for congressional committees to be investigating private schools?

547
00:30:50,920 --> 00:30:52,360
Speaker 7: Well, that's an excellent question.

548
00:30:52,480 --> 00:30:55,680
Speaker 6: Why is congress in involving itself in private schools? And

549
00:30:55,720 --> 00:30:59,160
Speaker 6: the answer is something we touched on earlier. Harvard and

550
00:30:59,200 --> 00:31:01,840
Speaker 6: a lot of other search universities get a ton of

551
00:31:01,920 --> 00:31:06,120
Speaker 6: money from the federal government. They got hundreds of millions

552
00:31:06,120 --> 00:31:11,120
Speaker 6: of dollars annually in federal research grants. Their students last

553
00:31:11,200 --> 00:31:13,920
Speaker 6: year got one hundred and five million dollars in federal

554
00:31:13,960 --> 00:31:17,560
Speaker 6: student loans to borrow for graduate school, like at Harvard

555
00:31:17,640 --> 00:31:20,520
Speaker 6: Law School. You know, it's one hundred and ten thousand

556
00:31:20,560 --> 00:31:24,040
Speaker 6: dollars or so, it's a lot Harvard Business School and

557
00:31:24,120 --> 00:31:27,720
Speaker 6: plus their students get pell grants. So the federal government

558
00:31:27,920 --> 00:31:31,080
Speaker 6: is one of the biggest annual donors to Harvard.

559
00:31:30,720 --> 00:31:32,320
Speaker 7: And other research universities.

560
00:31:32,760 --> 00:31:35,240
Speaker 6: So is it fair that Congress is grilling them? You know,

561
00:31:35,320 --> 00:31:37,600
Speaker 6: some might say they want to know how their money

562
00:31:37,600 --> 00:31:42,320
Speaker 6: is being spent. And the question about plagiarism involved how

563
00:31:42,480 --> 00:31:46,320
Speaker 6: is Harvard handling this inquiry, especially in light of how

564
00:31:46,360 --> 00:31:50,720
Speaker 6: it handles plagiarism with students and other faculty members. And

565
00:31:50,920 --> 00:31:54,600
Speaker 6: there were also questions about it's a creditor and Harvard

566
00:31:54,680 --> 00:31:57,920
Speaker 6: cannot get any federal money unless it's accredited.

567
00:31:59,080 --> 00:32:03,680
Speaker 1: And what is specifically is the anti semitism investigation about?

568
00:32:04,160 --> 00:32:08,040
Speaker 6: So the Education Committee asked I believe it was twenty

569
00:32:08,040 --> 00:32:11,680
Speaker 6: four sets of questions, so a lot looking at how

570
00:32:11,720 --> 00:32:15,520
Speaker 6: they were handling anti semitism, looking at you know, asking

571
00:32:15,560 --> 00:32:20,160
Speaker 6: for correspondence. They also asked questions about the Jewish population

572
00:32:20,400 --> 00:32:23,040
Speaker 6: over time, because there had been questions about that it

573
00:32:23,120 --> 00:32:26,040
Speaker 6: had declined, and you know, they wanted to know a

574
00:32:26,040 --> 00:32:29,800
Speaker 6: lot of things. And Penn received the same inquiry last week.

575
00:32:30,840 --> 00:32:34,200
Speaker 1: And the Education Department what is its investigation about?

576
00:32:34,520 --> 00:32:38,280
Speaker 6: Now that's a completely separate investigation, and you know, almost

577
00:32:38,320 --> 00:32:42,200
Speaker 6: three dozen colleges are also being investigated last week. I

578
00:32:42,240 --> 00:32:45,160
Speaker 6: believe Yale and Northwestern were at it. And again the

579
00:32:45,360 --> 00:32:49,960
Speaker 6: same group of colleges, Harvard, Mit, Penn, Cornell, you know

580
00:32:50,000 --> 00:32:53,200
Speaker 6: a lot of schools, and that is looking at discrimination

581
00:32:53,880 --> 00:32:58,040
Speaker 6: and it's about titles six of the Federal Civil Rights Act.

582
00:32:58,480 --> 00:33:00,280
Speaker 1: Is there a date coming up that we have to

583
00:33:00,360 --> 00:33:01,120
Speaker 1: keep our eye on.

584
00:33:01,360 --> 00:33:05,440
Speaker 6: They haven't announced any more committee hearings, but that's always possible,

585
00:33:05,760 --> 00:33:09,560
Speaker 6: waiting to hear more back about the Education Committee probe

586
00:33:09,600 --> 00:33:13,560
Speaker 6: into anti Semitism, what happens with the plagiarism inquiry, what

587
00:33:13,680 --> 00:33:17,920
Speaker 6: happens with Ways and Means? And I'll add Ways and

588
00:33:18,000 --> 00:33:22,400
Speaker 6: Means also did its own inquiry around twenty sixteen with

589
00:33:22,640 --> 00:33:25,840
Speaker 6: the Senate Finance Committee, and they asked a whole host

590
00:33:25,840 --> 00:33:31,200
Speaker 6: of questions about their endowment spending, fees from investment managers,

591
00:33:31,560 --> 00:33:35,520
Speaker 6: When do you not take money from donors? We did

592
00:33:35,720 --> 00:33:37,520
Speaker 6: a lot of fun stories when that came.

593
00:33:37,320 --> 00:33:40,520
Speaker 1: Out, fun for you, not fun for spills.

594
00:33:40,560 --> 00:33:42,560
Speaker 6: But they were answering questions like when do you turn

595
00:33:42,600 --> 00:33:45,920
Speaker 6: down money? So that was really insightful and people thought, well,

596
00:33:46,240 --> 00:33:48,840
Speaker 6: nothing's going to happen of this. And what happened in

597
00:33:48,920 --> 00:33:52,880
Speaker 6: twenty seventeen as part of the Trump tax package, they

598
00:33:52,920 --> 00:33:56,360
Speaker 6: slapped an endowment tax on schools. More than three dozen

599
00:33:56,440 --> 00:33:59,240
Speaker 6: schools now pay one point four percent on their net

600
00:33:59,280 --> 00:34:03,560
Speaker 6: investment returns a couple hundred million dollars, and that goes

601
00:34:03,600 --> 00:34:06,320
Speaker 6: to fund corporate tax cuts. So I'm not going to

602
00:34:06,360 --> 00:34:09,799
Speaker 6: say nothing's going to happen, that it's a political witch hunt,

603
00:34:09,800 --> 00:34:12,359
Speaker 6: because I don't think that's the case. You see, there

604
00:34:12,440 --> 00:34:17,280
Speaker 6: was many Democrats who are signed a resolution to condemn

605
00:34:17,320 --> 00:34:21,040
Speaker 6: the testimony. There have been Democrats on the committee and

606
00:34:21,080 --> 00:34:24,200
Speaker 6: other committees who have been very upset and concerned about

607
00:34:24,239 --> 00:34:27,520
Speaker 6: anti semitism on campus. So I don't see that it's

608
00:34:27,560 --> 00:34:29,080
Speaker 6: a witch hunt at all. I think that would be

609
00:34:29,080 --> 00:34:32,399
Speaker 6: a mistake to assume that. And you know, we'll see

610
00:34:32,440 --> 00:34:34,879
Speaker 6: what's going to happen. So many things have been coming

611
00:34:34,960 --> 00:34:38,480
Speaker 6: out of left field that you can't really anticipate. I

612
00:34:38,520 --> 00:34:39,680
Speaker 6: can't tell you what's going to happen.

613
00:34:40,000 --> 00:34:41,799
Speaker 1: Well, you did a good job of telling us what

614
00:34:41,880 --> 00:34:45,960
Speaker 1: is happening. Thanks so much, Janet. That's Janet Lauren Bloomberg,

615
00:34:46,000 --> 00:34:50,040
Speaker 1: higher Education and Finance reporter. And in other legal news today,

616
00:34:50,520 --> 00:34:53,200
Speaker 1: for the first time, a mother is standing trial for

617
00:34:53,320 --> 00:34:56,839
Speaker 1: a mass shooting by her child. Jennifer Crumbley is on

618
00:34:56,920 --> 00:34:59,800
Speaker 1: trial for the murders of four students in a shooting

619
00:34:59,840 --> 00:35:03,240
Speaker 1: room at a Michigan high school in November of twenty

620
00:35:03,280 --> 00:35:06,880
Speaker 1: twenty one, the worst school shooting in the state's history.

621
00:35:07,280 --> 00:35:10,120
Speaker 1: It was her fifteen year old son, Ethan who pulled

622
00:35:10,120 --> 00:35:13,799
Speaker 1: the trigger, but prosecutors are trying to hold her responsible

623
00:35:14,200 --> 00:35:17,120
Speaker 1: for what they say as wilful negligence of her son's

624
00:35:17,160 --> 00:35:22,160
Speaker 1: deteriorating mental health and warning signs that he was contemplating violence,

625
00:35:22,640 --> 00:35:25,960
Speaker 1: But her defense attorney argues that Crumbly had no reason

626
00:35:26,000 --> 00:35:29,320
Speaker 1: to believe her son posed a threat, and today Jennifer

627
00:35:29,360 --> 00:35:32,520
Speaker 1: Crumbly took the witness stand in her own defense. She

628
00:35:32,719 --> 00:35:36,040
Speaker 1: testified that she and her son had a strong relationship.

629
00:35:36,600 --> 00:35:39,680
Speaker 8: I trusted him and I felt like I had an

630
00:35:39,719 --> 00:35:41,720
Speaker 8: open door and he can come to me about anything.

631
00:35:43,040 --> 00:35:45,680
Speaker 8: I mean, I fell as a family where three of

632
00:35:45,719 --> 00:35:46,480
Speaker 8: us were really close.

633
00:35:47,120 --> 00:35:50,680
Speaker 1: Crumbly also said she never noticed her son having major

634
00:35:50,760 --> 00:35:52,000
Speaker 1: mental health struggles.

635
00:35:52,520 --> 00:35:55,799
Speaker 8: There's a couple of times where Ethan had sprossed anxiety,

636
00:35:56,040 --> 00:36:00,600
Speaker 8: overtaking tests, anxiety about what he is going to do

637
00:36:00,960 --> 00:36:04,200
Speaker 8: after high school while it was college military.

638
00:36:04,960 --> 00:36:08,839
Speaker 1: Crumbley is being tried for involuntary manslaughter, which carries a

639
00:36:08,920 --> 00:36:14,200
Speaker 1: maximum sentence of fifteen years in prison. Ethan's father, James Crumby,

640
00:36:14,280 --> 00:36:17,720
Speaker 1: will also be tried for involuntary manslaughter at a separate

641
00:36:17,760 --> 00:36:21,440
Speaker 1: trial in March. As for Ethan, he was sentenced to

642
00:36:21,520 --> 00:36:26,040
Speaker 1: life in prison in December after he pleaded guilty to murder, terrorism,

643
00:36:26,120 --> 00:36:28,680
Speaker 1: and other crimes. And that's it for this edition of

644
00:36:28,719 --> 00:36:31,759
Speaker 1: the Bloomberg Law Podcast. Remember you can always get the

645
00:36:31,800 --> 00:36:34,760
Speaker 1: latest legal news by subscribing and listening to the show

646
00:36:34,920 --> 00:36:39,440
Speaker 1: on Apple Podcasts, Spotify, and at Bloomberg dot com, slash podcast,

647
00:36:39,480 --> 00:36:43,400
Speaker 1: Slash Law. I'm June Grosso and this is Bloomberg