1 00:00:03,160 --> 00:00:07,960 Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio. 2 00:00:10,840 --> 00:00:14,120 Speaker 1: Former Vice President Mike Penns has spoken and written about 3 00:00:14,240 --> 00:00:18,439 Speaker 1: conversations he had with former President Donald Trump about why 4 00:00:18,520 --> 00:00:22,760 Speaker 1: he wouldn't follow Trump's demands to reject Electoral College votes 5 00:00:22,800 --> 00:00:26,119 Speaker 1: from key swing states. When he oversaw the joint session 6 00:00:26,160 --> 00:00:30,400 Speaker 1: of Congress to certify Joe Biden's victory on January six, 7 00:00:32,000 --> 00:00:36,280 Speaker 1: picked up the phone and the President asked me where 8 00:00:36,280 --> 00:00:39,520 Speaker 1: I was on the electoral account that would take place 9 00:00:39,560 --> 00:00:44,000 Speaker 1: that day. And I told him, despite what you issued 10 00:00:44,080 --> 00:00:46,279 Speaker 1: last night from your campaign, Mr President, you know, I've 11 00:00:46,280 --> 00:00:49,479 Speaker 1: been very clear, but I don't have the authority to 12 00:00:49,640 --> 00:00:54,000 Speaker 1: reject votes. And I reminded him we both took an 13 00:00:54,000 --> 00:00:57,080 Speaker 1: oath to support and defend the constitution of the United States. 14 00:00:58,240 --> 00:00:59,880 Speaker 1: I told him it was a promise that I may 15 00:01:01,800 --> 00:01:06,240 Speaker 1: to the American people and to Almighty God. Now. Special 16 00:01:06,280 --> 00:01:09,440 Speaker 1: Counsel Jack Smith wants to hear from Pence as part 17 00:01:09,480 --> 00:01:12,760 Speaker 1: of his investigation into efforts by Trump and others to 18 00:01:12,840 --> 00:01:17,880 Speaker 1: overturn the presidential election. He subpoenaed Pence to appear before 19 00:01:17,880 --> 00:01:21,199 Speaker 1: the grand jury, but the former Vice president says he'll 20 00:01:21,240 --> 00:01:25,039 Speaker 1: fight the subpoena using a novel legal theory around his 21 00:01:25,240 --> 00:01:28,000 Speaker 1: role as President of the Senate and the section of 22 00:01:28,000 --> 00:01:31,800 Speaker 1: the Constitution known as the speech or debate Clause. Joining 23 00:01:31,840 --> 00:01:35,160 Speaker 1: me is national security expert Bradley Moss, a partner Mark 24 00:01:35,280 --> 00:01:38,920 Speaker 1: Zad Brad and his memoir, Pence revealed that he was 25 00:01:39,040 --> 00:01:42,280 Speaker 1: part of a number of conversations where Trump and his 26 00:01:42,560 --> 00:01:48,400 Speaker 1: legal advisors were pushing claims about widespread voter fraud or 27 00:01:48,760 --> 00:01:52,160 Speaker 1: floating novel legal theories that could be used to keep 28 00:01:52,200 --> 00:01:55,200 Speaker 1: Trump in the White House. And in a Wall Street 29 00:01:55,280 --> 00:01:58,320 Speaker 1: Journal opinion piece, Pennce said he told Trump that it 30 00:01:58,320 --> 00:02:00,640 Speaker 1: would be illegal for him to interfere in the count 31 00:02:00,720 --> 00:02:04,200 Speaker 1: during an Oval office meeting with lawyer John Eastman. So 32 00:02:04,240 --> 00:02:07,640 Speaker 1: how can he claim privilege? Hasn't he waived it? So 33 00:02:07,680 --> 00:02:10,040 Speaker 1: what he could argue is that he can only be 34 00:02:10,120 --> 00:02:14,280 Speaker 1: forced to testify regarding those matters that he's already disclosed. 35 00:02:14,360 --> 00:02:18,000 Speaker 1: And obviously what he put into the memoir, what he 36 00:02:18,440 --> 00:02:21,560 Speaker 1: discussed in the op ed isn't truly of the interest. 37 00:02:21,600 --> 00:02:24,239 Speaker 1: I mean, it's relevant, it's certainly something that the Special 38 00:02:24,280 --> 00:02:26,720 Speaker 1: Council's team would want on the record and under oath, 39 00:02:27,120 --> 00:02:30,839 Speaker 1: but it's not the critical pieces of information. What they 40 00:02:30,960 --> 00:02:34,200 Speaker 1: want are things such as what Mike Pence and Donald 41 00:02:34,200 --> 00:02:37,519 Speaker 1: Trump said to each other in private on those phone calls, 42 00:02:37,520 --> 00:02:39,840 Speaker 1: including in the final hours and the last day or 43 00:02:39,840 --> 00:02:43,240 Speaker 1: so leading up to January six, where there was no 44 00:02:43,320 --> 00:02:45,840 Speaker 1: other aid with Mike Pence. We know he said in 45 00:02:45,880 --> 00:02:47,720 Speaker 1: his staff out of the room. We know there was 46 00:02:47,800 --> 00:02:50,600 Speaker 1: staff with Donald Trump, but they didn't hear what Mike 47 00:02:50,639 --> 00:02:54,000 Speaker 1: Pence said. And that's the kind of information that the 48 00:02:54,040 --> 00:02:56,760 Speaker 1: Special Council will be going after, and that Mike Pence 49 00:02:56,800 --> 00:03:00,480 Speaker 1: has not disclosed anywhere. So Pence is going to fight 50 00:03:00,520 --> 00:03:03,839 Speaker 1: the subpoena using the argument that he was acting as 51 00:03:03,960 --> 00:03:08,640 Speaker 1: President of the Senate during the January six insurrection and 52 00:03:08,840 --> 00:03:13,120 Speaker 1: invoking the speech or debate clause. Tell us more about 53 00:03:13,120 --> 00:03:16,840 Speaker 1: his argument. So it's a novel argument. It's an interesting one. 54 00:03:16,880 --> 00:03:19,560 Speaker 1: You know, constitutional scholars will get a kick out of it, 55 00:03:19,919 --> 00:03:22,000 Speaker 1: but there's not a lot in the way of any 56 00:03:22,040 --> 00:03:25,400 Speaker 1: kind of real precedent to guide anybody as to how 57 00:03:25,440 --> 00:03:28,280 Speaker 1: it would play out. So, yes, under the Constitution, the 58 00:03:28,360 --> 00:03:31,760 Speaker 1: vice president it kind of has two roles. One, obviously 59 00:03:31,840 --> 00:03:34,800 Speaker 1: is the executive branch role under Article two of the Constitution, 60 00:03:35,320 --> 00:03:38,600 Speaker 1: very limited authorities. But that's what the role is set 61 00:03:38,640 --> 00:03:40,839 Speaker 1: up to do. The other one is what is set 62 00:03:40,880 --> 00:03:43,680 Speaker 1: up under Article one of the Constitution, which deals with Congress, 63 00:03:43,680 --> 00:03:45,960 Speaker 1: and that is that the Vice President serves as the 64 00:03:46,000 --> 00:03:49,040 Speaker 1: President of the Senate, you know, can break ties things 65 00:03:49,080 --> 00:03:53,680 Speaker 1: like that, and also of course ultimately convenes and presides 66 00:03:53,800 --> 00:03:57,960 Speaker 1: over the certification of the electoral votes to decide who 67 00:03:58,040 --> 00:04:01,600 Speaker 1: is the next president. So is this sort of non 68 00:04:01,640 --> 00:04:05,839 Speaker 1: frivolous argument that because of the dual roles, he can 69 00:04:05,960 --> 00:04:09,360 Speaker 1: argue that he was acting in that legislative capacity. He 70 00:04:09,480 --> 00:04:13,920 Speaker 1: was fulfilling a legislative activity, and therefore any discussions he 71 00:04:14,000 --> 00:04:18,320 Speaker 1: had about and leading up to his actions on January 72 00:04:18,400 --> 00:04:21,279 Speaker 1: six in that role would be covered by the speech 73 00:04:21,320 --> 00:04:25,640 Speaker 1: and debate clause. It's never been done before. There's been 74 00:04:25,720 --> 00:04:29,560 Speaker 1: some limited arguments on this in court, such as the 75 00:04:29,920 --> 00:04:33,640 Speaker 1: just Department invoked that same clause de protect mini civil suit. 76 00:04:34,200 --> 00:04:36,760 Speaker 1: It's unclear how it would play out here in a 77 00:04:36,800 --> 00:04:41,000 Speaker 1: criminal context. We really don't know. You have to assume 78 00:04:41,080 --> 00:04:44,120 Speaker 1: to some extent, you know, Jack Smith, the Special Council's 79 00:04:44,120 --> 00:04:46,920 Speaker 1: team has played out the legal arguments and decided they 80 00:04:46,920 --> 00:04:49,680 Speaker 1: have sufficient grounds to move forward if it's challenged on 81 00:04:49,720 --> 00:04:54,560 Speaker 1: its basis it protects legislators from certain law enforcement actions 82 00:04:54,600 --> 00:04:58,040 Speaker 1: if the conduct is related to their legislative duties. Right, 83 00:04:58,160 --> 00:05:01,240 Speaker 1: So would this protect him if you know, he was 84 00:05:01,279 --> 00:05:05,480 Speaker 1: having conversations with Trump that were not exactly related to 85 00:05:05,520 --> 00:05:09,359 Speaker 1: his legislative duties. That happened, you know, before the Capitol attack, 86 00:05:09,560 --> 00:05:12,400 Speaker 1: that happened in the White House. So again that's where 87 00:05:12,440 --> 00:05:15,240 Speaker 1: there there's limited case, lot of guide as the most 88 00:05:15,279 --> 00:05:18,560 Speaker 1: recent sort of guy posts we have is what Senator 89 00:05:18,600 --> 00:05:21,200 Speaker 1: Lindsey Graham dealt with dot in Georgia when he fought 90 00:05:21,320 --> 00:05:26,160 Speaker 1: Fulton County the piano to testify before that special grand jury. 91 00:05:26,240 --> 00:05:31,440 Speaker 1: He was partially successful. The courts ultimately include that even 92 00:05:31,920 --> 00:05:35,760 Speaker 1: informal sort of you know, fact finding efforts done by 93 00:05:36,040 --> 00:05:40,679 Speaker 1: Lindsey Graham in his legislative capacity during those phone calls 94 00:05:40,680 --> 00:05:44,039 Speaker 1: he had with Georgia officials were sufficiently you know, within 95 00:05:44,040 --> 00:05:46,479 Speaker 1: the scope of legislative activity and he couldn't be forced 96 00:05:46,560 --> 00:05:50,760 Speaker 1: to testify about it. But beyond that, separate actions such 97 00:05:50,760 --> 00:05:53,960 Speaker 1: as what was described as you know, cajoling and you know, 98 00:05:54,200 --> 00:05:57,680 Speaker 1: trying to extore the Secretary of State down Georgia to 99 00:05:57,839 --> 00:06:00,840 Speaker 1: throw out votes things along those lines. That is something 100 00:06:00,839 --> 00:06:03,640 Speaker 1: the courts concluded would not fall within the scope of 101 00:06:03,720 --> 00:06:06,960 Speaker 1: legislative activity and therefore he could be questioned about it, 102 00:06:06,960 --> 00:06:10,080 Speaker 1: and he ultimately was what he said. We don't know yet. 103 00:06:10,120 --> 00:06:12,160 Speaker 1: We're waiting to see what we find out on Thursday 104 00:06:12,440 --> 00:06:14,240 Speaker 1: when some of this grand jury report comes out in 105 00:06:14,279 --> 00:06:18,040 Speaker 1: from Georgia. But that's kind of where this is likely going, 106 00:06:18,240 --> 00:06:20,600 Speaker 1: is that what Pence is trying to do is get 107 00:06:20,640 --> 00:06:23,359 Speaker 1: the scope of this subpoena ultimately narrowed. This is my 108 00:06:23,480 --> 00:06:27,080 Speaker 1: view where he's realistically doing this, get it narrowed, parcel 109 00:06:27,160 --> 00:06:30,480 Speaker 1: out what can and cannot be asked of him, sort 110 00:06:30,480 --> 00:06:33,480 Speaker 1: of narrowed down where the Special Council can go with this, 111 00:06:33,600 --> 00:06:36,600 Speaker 1: and then he'll respond as necessary. Apparently there have been 112 00:06:36,640 --> 00:06:40,480 Speaker 1: months of negotiations with the Special Counsel and and Pence 113 00:06:40,520 --> 00:06:42,800 Speaker 1: his lawyers, and they haven't been able to come to 114 00:06:43,200 --> 00:06:47,440 Speaker 1: any resolution. Obviously, or the Special Council wouldn't have taken 115 00:06:47,480 --> 00:06:50,520 Speaker 1: this step. Do you think a court would be better 116 00:06:50,640 --> 00:06:53,320 Speaker 1: able to parse it out? I think part of that 117 00:06:53,440 --> 00:06:56,520 Speaker 1: is politics and optics that obviously Mike Pence is going 118 00:06:56,560 --> 00:07:00,400 Speaker 1: to run for president. He can't be seen as you 119 00:07:00,440 --> 00:07:05,200 Speaker 1: know voluntarily complying with the Justice Department's investigation here, or 120 00:07:05,320 --> 00:07:08,680 Speaker 1: lest he you know, anger some of that very conservative 121 00:07:08,720 --> 00:07:11,640 Speaker 1: base that obviously he's going to be courting um in 122 00:07:11,680 --> 00:07:14,160 Speaker 1: the primaries for the presidential race, so he's got at 123 00:07:14,240 --> 00:07:16,160 Speaker 1: least put up some sort of fight. We have no 124 00:07:16,200 --> 00:07:18,800 Speaker 1: idea what the negotiations look like between his team and 125 00:07:18,800 --> 00:07:21,760 Speaker 1: the Special Council. Maybe a Special Council's team wasn't willing 126 00:07:21,800 --> 00:07:25,480 Speaker 1: to narrow things sufficiently, and pensive team thought they had 127 00:07:25,560 --> 00:07:28,800 Speaker 1: sufficient basis, you know, in court to get it further narrowed. 128 00:07:29,120 --> 00:07:33,320 Speaker 1: We just don't know, but at a minimum, I'm not 129 00:07:33,520 --> 00:07:36,920 Speaker 1: shocked heeps putting up some sort of legal fight. He 130 00:07:36,960 --> 00:07:39,880 Speaker 1: has to do that for politics of nothing else. How 131 00:07:39,920 --> 00:07:42,080 Speaker 1: long will it take for a fight like this to 132 00:07:42,200 --> 00:07:43,800 Speaker 1: play out in the courts? I mean, there want to 133 00:07:43,800 --> 00:07:47,160 Speaker 1: be appeals, it might go to Supreme Court. So the 134 00:07:47,240 --> 00:07:50,280 Speaker 1: good news is because this is a criminal matter, because 135 00:07:50,320 --> 00:07:52,400 Speaker 1: there's you know, a pending grand jury. It's not like 136 00:07:52,440 --> 00:07:55,040 Speaker 1: a civil action where it could take months years. You 137 00:07:55,080 --> 00:07:57,760 Speaker 1: think about the Lindsay Graham matter that was handled in 138 00:07:57,800 --> 00:08:01,320 Speaker 1: a couple of months. So you know, let's say there's 139 00:08:01,320 --> 00:08:04,960 Speaker 1: a court action that's filed this week to quash the subpoena. 140 00:08:05,560 --> 00:08:09,200 Speaker 1: You know, we're in February. It's very plausible to imagine 141 00:08:09,440 --> 00:08:11,960 Speaker 1: this being resolved, even to get all the way up 142 00:08:11,960 --> 00:08:15,800 Speaker 1: to the Supreme Court, no later than mayor June. I 143 00:08:15,840 --> 00:08:19,040 Speaker 1: don't think you'll actually take that long. I have a 144 00:08:19,080 --> 00:08:22,080 Speaker 1: feeling this is, just like I said, a negotiating tactic 145 00:08:22,160 --> 00:08:25,200 Speaker 1: to narrow down the scope of what's going to be asked. 146 00:08:25,440 --> 00:08:27,600 Speaker 1: But this will certainly if he moves the quash, it 147 00:08:27,640 --> 00:08:30,120 Speaker 1: will delay things for weeks, if not month, But if 148 00:08:30,160 --> 00:08:34,600 Speaker 1: not going to be you know, outcome determinative comps. Lawyers 149 00:08:34,640 --> 00:08:38,720 Speaker 1: say that he intends to exert executive privilege to fight 150 00:08:38,840 --> 00:08:42,440 Speaker 1: the Special Council subpoena of Pence. There seemed to be 151 00:08:42,480 --> 00:08:46,960 Speaker 1: several problems with that one. This is a criminal investigation, 152 00:08:47,040 --> 00:08:51,760 Speaker 1: isn't it correct? So he certainly can invoke it. That 153 00:08:51,920 --> 00:08:56,680 Speaker 1: is still his right and in his standing to invoke it, 154 00:08:56,720 --> 00:08:59,120 Speaker 1: but it will likely fail in to be far weak 155 00:08:59,200 --> 00:09:02,760 Speaker 1: er legal case ace than what Pence is apparently considering 156 00:09:02,840 --> 00:09:07,040 Speaker 1: doing with the speech and debate clause argument. The executive 157 00:09:07,040 --> 00:09:09,800 Speaker 1: privilege claim here would come back to the Supreme Court 158 00:09:09,880 --> 00:09:13,520 Speaker 1: precedent from the seventies with Nixton. Even there, the Supreme 159 00:09:13,559 --> 00:09:16,760 Speaker 1: Court concluded that if there is a compelling interest that 160 00:09:16,840 --> 00:09:20,960 Speaker 1: the Justice departments inquiry into criminal activity would override an 161 00:09:21,000 --> 00:09:27,120 Speaker 1: incumbent president's legitimate, otherwise legitimate executive privilege claims, there's no 162 00:09:27,200 --> 00:09:30,079 Speaker 1: reason to believe that argument would somehow hold up here, 163 00:09:30,440 --> 00:09:32,600 Speaker 1: And that's probably why Pence isn't really going with that 164 00:09:32,720 --> 00:09:35,839 Speaker 1: line of argument. If anything would be a throwaway, the 165 00:09:35,920 --> 00:09:38,640 Speaker 1: legislative activity one is a far more interesting one, far 166 00:09:38,720 --> 00:09:41,920 Speaker 1: more legally confusing one, which is the late things longer. 167 00:09:42,280 --> 00:09:46,560 Speaker 1: And Trump has attempted to claim executive privilege several times 168 00:09:46,600 --> 00:09:49,880 Speaker 1: to try to block the House January six committee, apparently 169 00:09:49,920 --> 00:09:54,160 Speaker 1: also to try to block some testimony to the federal 170 00:09:54,160 --> 00:09:57,319 Speaker 1: grand jury. Has he been successful in any of those, 171 00:09:58,200 --> 00:10:00,800 Speaker 1: for the ones that have been made public, No, he 172 00:10:00,920 --> 00:10:05,000 Speaker 1: has not. He has at most potentially narrowed some things 173 00:10:05,040 --> 00:10:08,000 Speaker 1: that obviously the grand jury procedes because their secret A 174 00:10:08,040 --> 00:10:10,160 Speaker 1: lot of that. We don't know what's gone on behind 175 00:10:10,240 --> 00:10:12,920 Speaker 1: the scene. We know people who have gone through testify 176 00:10:13,040 --> 00:10:15,280 Speaker 1: before the grand jury, we don't know the extent to 177 00:10:15,280 --> 00:10:18,560 Speaker 1: which they actually were allowed to answer questions, to what 178 00:10:18,679 --> 00:10:21,880 Speaker 1: extent there were fights over executive privilege in terms of 179 00:10:21,920 --> 00:10:25,160 Speaker 1: they invoked it at the Grand jury proceeding itself, and 180 00:10:25,200 --> 00:10:27,160 Speaker 1: then there was additional fighting behind the scenes. We just 181 00:10:27,200 --> 00:10:30,559 Speaker 1: don't know. It still remains secret, but in the public fights, 182 00:10:30,720 --> 00:10:33,360 Speaker 1: especially with the January six Committee and then his fight 183 00:10:33,440 --> 00:10:37,200 Speaker 1: with Nara over the turnover of documents the Generous Sex Committee, 184 00:10:37,320 --> 00:10:39,520 Speaker 1: we know that the former president failed time and time 185 00:10:39,559 --> 00:10:43,720 Speaker 1: again in those regards. Let's turn to the Special Council's 186 00:10:43,880 --> 00:10:48,720 Speaker 1: inquiry into the classified documents found at Trump's marrow La 187 00:10:48,920 --> 00:10:53,320 Speaker 1: go Home. Apparently Trump's team turned over an empty folder 188 00:10:53,400 --> 00:10:58,400 Speaker 1: mark classified. And here's what Trump attorney Timothy Parla Tory 189 00:10:58,600 --> 00:11:04,080 Speaker 1: said about that m folder on CNN. The folder is 190 00:11:04,360 --> 00:11:06,520 Speaker 1: kind of one of the more humorous aspects of this 191 00:11:06,559 --> 00:11:10,319 Speaker 1: whole thing. Uh, this is not a classified folder. This 192 00:11:10,400 --> 00:11:12,760 Speaker 1: is a folder that when my team went through and 193 00:11:12,840 --> 00:11:15,760 Speaker 1: searched and they wrote up their report which we turned 194 00:11:15,760 --> 00:11:19,160 Speaker 1: over to d o J, they saw it's a It's 195 00:11:19,200 --> 00:11:23,839 Speaker 1: a folder Manola folder that says classified Evening Summary on it. 196 00:11:24,559 --> 00:11:27,960 Speaker 1: And it was in the President's bedroom. He has one 197 00:11:28,000 --> 00:11:31,440 Speaker 1: of those landline telephones next to his bed and it 198 00:11:31,440 --> 00:11:33,480 Speaker 1: has a blue light on it, and he keeps them 199 00:11:33,520 --> 00:11:35,719 Speaker 1: up at night, so he took the Minola folder and 200 00:11:35,800 --> 00:11:37,840 Speaker 1: put it over it so that it would keep the 201 00:11:38,120 --> 00:11:41,000 Speaker 1: light down so you can sleep at night. And it's 202 00:11:41,120 --> 00:11:44,840 Speaker 1: just this folder. It says classified Evening Evening Summary on it. 203 00:11:44,920 --> 00:11:49,200 Speaker 1: Is not a classification marking. It's not anything that is 204 00:11:49,240 --> 00:11:52,000 Speaker 1: controlled in any way. There's nothing illegal about it. There's 205 00:11:52,000 --> 00:11:55,480 Speaker 1: nothing in it. And when d J found out about it, 206 00:11:55,520 --> 00:11:58,000 Speaker 1: they went crazy and they said, hey, actually gave me 207 00:11:58,040 --> 00:12:00,480 Speaker 1: a spiana to say, give us over this empty folder. 208 00:12:00,960 --> 00:12:04,120 Speaker 1: That means nothing. I mean, I'm just wondering where that 209 00:12:04,160 --> 00:12:08,000 Speaker 1: came from and why. So, yeah, this this was a 210 00:12:08,120 --> 00:12:12,040 Speaker 1: very clever little piece of media technique and tactics by 211 00:12:12,080 --> 00:12:14,600 Speaker 1: the Trump lawyer trying to use this the red herring 212 00:12:14,640 --> 00:12:16,559 Speaker 1: to make it sound like all we're talking about is 213 00:12:16,559 --> 00:12:19,959 Speaker 1: a bunch of you know, former folders. Now, so there 214 00:12:20,080 --> 00:12:23,400 Speaker 1: was a folder at issue that apparently was labeled as 215 00:12:23,440 --> 00:12:27,520 Speaker 1: classified Evening Briefing that was not turned over. We don't 216 00:12:27,520 --> 00:12:29,319 Speaker 1: know the extent of what was what kind of marketings 217 00:12:29,320 --> 00:12:31,280 Speaker 1: were on it, but let's be clear if the folder 218 00:12:31,320 --> 00:12:33,880 Speaker 1: was empty, and all it was is the Manilla folder 219 00:12:33,920 --> 00:12:36,440 Speaker 1: with the original markings on it. The folder itself is 220 00:12:36,480 --> 00:12:39,040 Speaker 1: not classified it shouldn't have been in its possession anyways, 221 00:12:39,080 --> 00:12:41,600 Speaker 1: and if it's subject speed, you turn it over anyways. 222 00:12:41,920 --> 00:12:45,040 Speaker 1: But that's not a classified document, it's an empty folder. 223 00:12:45,640 --> 00:12:52,480 Speaker 1: The documents that were returned over in January two, in June, 224 00:12:53,360 --> 00:12:55,600 Speaker 1: and then we ultimately see in August of twenty two, 225 00:12:55,960 --> 00:12:59,240 Speaker 1: those are what remains the issue of true criminal liability. 226 00:12:59,280 --> 00:13:02,199 Speaker 1: Those weren't empty full there's those were documents. Those were 227 00:13:02,200 --> 00:13:05,560 Speaker 1: documents with proper classification markings on them. That's what the 228 00:13:05,600 --> 00:13:09,000 Speaker 1: true liability. This was just a little interesting media ployed 229 00:13:09,000 --> 00:13:12,040 Speaker 1: by the Trump lawyer, which was clever, but ultimately irrelevant 230 00:13:12,040 --> 00:13:16,120 Speaker 1: from a legal standpoint. Now we know that classified documents 231 00:13:16,200 --> 00:13:19,920 Speaker 1: have been found at President Biden's home and former office, 232 00:13:20,600 --> 00:13:23,320 Speaker 1: and at Mike Pence's home. Here's what Penn said in 233 00:13:23,400 --> 00:13:28,599 Speaker 1: January about the discovery of classified documents at his Indiana residence. 234 00:13:29,040 --> 00:13:31,920 Speaker 1: Those classified documents should not have been in my personal residence. 235 00:13:33,240 --> 00:13:38,800 Speaker 1: Mistakes were made, and I take full responsibility. There's a 236 00:13:38,840 --> 00:13:43,360 Speaker 1: special counsel for the Trump classified documents. There's a special 237 00:13:43,440 --> 00:13:47,679 Speaker 1: counsel for the Biden classified documents. Do you think that 238 00:13:47,720 --> 00:13:50,760 Speaker 1: Attorney General Merrick Garland is going to appoint a special 239 00:13:50,800 --> 00:13:55,600 Speaker 1: counsel for the Pence documents as well. So if Mike 240 00:13:55,679 --> 00:13:59,680 Speaker 1: Pence ultimately does announce a run for president, I ex 241 00:14:00,040 --> 00:14:03,160 Speaker 1: act there will be an appointment of a special counsel, 242 00:14:03,200 --> 00:14:07,240 Speaker 1: if only to remain consistent with what Mark Garland has 243 00:14:07,280 --> 00:14:10,520 Speaker 1: been doing. He announced one for Donald Trump only after 244 00:14:10,559 --> 00:14:14,079 Speaker 1: Trump announced his candidacy for the presidency. He announced one 245 00:14:14,160 --> 00:14:17,280 Speaker 1: for President Joe Biden because it is the president and 246 00:14:17,280 --> 00:14:20,080 Speaker 1: I its it advanced the point where it was looking 247 00:14:20,120 --> 00:14:22,880 Speaker 1: like it was going to be at a potentially criminal inquiry, 248 00:14:23,200 --> 00:14:25,800 Speaker 1: and it's the sitting president, so there was a concern 249 00:14:26,000 --> 00:14:29,120 Speaker 1: about the conflict of interest. I understood why Marrick Garland 250 00:14:29,120 --> 00:14:31,320 Speaker 1: did that. Mike Pence is not running yet. If he 251 00:14:31,360 --> 00:14:33,760 Speaker 1: were to announced tomorrow, I would fully expect that they 252 00:14:33,760 --> 00:14:36,640 Speaker 1: would shortly thereafter being announcement of a special counsel for 253 00:14:36,720 --> 00:14:39,720 Speaker 1: the Pence document I don't expect anything to come about 254 00:14:39,920 --> 00:14:42,760 Speaker 1: criminal wise with respect of the Pence doctor stuff and 255 00:14:42,800 --> 00:14:46,200 Speaker 1: Brod your final thoughts on Pence's challenge to the grand 256 00:14:46,240 --> 00:14:51,040 Speaker 1: jury subpoena. Legal academics are you know, popping the pop corps. 257 00:14:51,320 --> 00:14:54,200 Speaker 1: But now it's an abstract legal discussion. It most of 258 00:14:54,240 --> 00:14:56,720 Speaker 1: what it is and it's a fascinating one. It's possibly 259 00:14:56,720 --> 00:14:59,040 Speaker 1: got a flesh out some really interesting guide posts, an 260 00:14:59,120 --> 00:15:01,840 Speaker 1: article one article authorities. He's going to testify in some 261 00:15:02,040 --> 00:15:06,080 Speaker 1: limited regard. Thanks so much, Brad. That's Bradley Moss apartment, 262 00:15:06,200 --> 00:15:11,120 Speaker 1: Mark Zade. The Federal Trade Commission has halted its in 263 00:15:11,200 --> 00:15:17,200 Speaker 1: house lawsuit challenging Meta platforms acquisition of VR developer Within Unlimited. 264 00:15:17,720 --> 00:15:21,440 Speaker 1: This follows a federal judge denying the FTC's motion for 265 00:15:21,600 --> 00:15:25,920 Speaker 1: preliminary injunction to halt the deal after a trial. Joining 266 00:15:25,920 --> 00:15:29,240 Speaker 1: me to look behind this reprieve for Meta is Bloomberg 267 00:15:29,240 --> 00:15:33,520 Speaker 1: Intelligence senior litigation analyst Jennifer ree So. Meta has a 268 00:15:33,640 --> 00:15:38,840 Speaker 1: history of buying up promising VR technology, including Beat Games 269 00:15:38,880 --> 00:15:43,040 Speaker 1: and Oculus, and it's reminiscent of Facebook's early purchase of 270 00:15:43,160 --> 00:15:47,200 Speaker 1: Instagram and What'sapp. So tell us about the FTC suing 271 00:15:47,240 --> 00:15:51,480 Speaker 1: to stop Meta from purchasing Within. Now, you're exactly right, June. 272 00:15:51,600 --> 00:15:54,400 Speaker 1: Meta does have this history of acquisitions, particularly in the 273 00:15:54,480 --> 00:15:57,800 Speaker 1: VR space, and I think the FTC is really concerned 274 00:15:57,840 --> 00:16:00,080 Speaker 1: about what has happened in the last ten years with 275 00:16:00,120 --> 00:16:02,400 Speaker 1: big tech platforms that they kind of swallow up these 276 00:16:02,400 --> 00:16:05,760 Speaker 1: small nascent companies that might have grown into big companies 277 00:16:05,760 --> 00:16:07,840 Speaker 1: and been their competitors, and they're trying to nip this 278 00:16:07,880 --> 00:16:10,160 Speaker 1: stuff in the bud now. So what they're looking at 279 00:16:10,200 --> 00:16:13,320 Speaker 1: today are Meta's ambitions in the virtual reality space, and 280 00:16:13,320 --> 00:16:15,640 Speaker 1: they understand that they really want to be the leader 281 00:16:15,680 --> 00:16:18,280 Speaker 1: there and they think fitness apps in the virtual reality 282 00:16:18,320 --> 00:16:20,840 Speaker 1: space are very important. So what they did here is 283 00:16:20,880 --> 00:16:23,440 Speaker 1: they tried to stop Meta from buying a small company 284 00:16:23,520 --> 00:16:27,280 Speaker 1: within which makes this virtual reality fitness app because they 285 00:16:27,360 --> 00:16:29,440 Speaker 1: said that Meta could do this on their own and 286 00:16:29,520 --> 00:16:31,920 Speaker 1: that would increase competition if Meta did it, rather than 287 00:16:31,960 --> 00:16:34,680 Speaker 1: buying up an entity that it might compete within the future. 288 00:16:35,080 --> 00:16:37,840 Speaker 1: So what they did is they relied on this theory 289 00:16:37,880 --> 00:16:41,120 Speaker 1: that they don't compete today Meta and this company within 290 00:16:41,200 --> 00:16:43,240 Speaker 1: that they want to buy, but hey, they could compete 291 00:16:43,240 --> 00:16:46,640 Speaker 1: in the future, and so the deal, the acquisition is 292 00:16:46,760 --> 00:16:51,720 Speaker 1: anti competitive because of that potential competition possibility. Here, the 293 00:16:51,800 --> 00:16:55,880 Speaker 1: judge accepted that theory but still ruled against the FTC. 294 00:16:56,400 --> 00:16:59,960 Speaker 1: Why right, And I will say that the judge accepting 295 00:17:00,080 --> 00:17:02,520 Speaker 1: the theory was really a win in this case for 296 00:17:02,680 --> 00:17:05,679 Speaker 1: the FDC. I mean, I think they're probably pretty happy 297 00:17:05,720 --> 00:17:07,760 Speaker 1: with where they came out here even though they lost 298 00:17:07,800 --> 00:17:10,439 Speaker 1: the battle in a way. You know, Meta won the battle, 299 00:17:10,480 --> 00:17:13,000 Speaker 1: but may have lost the war here because this theory, 300 00:17:13,240 --> 00:17:17,200 Speaker 1: this potential competition theory is is an old theory. It's 301 00:17:17,240 --> 00:17:19,640 Speaker 1: never really been endorsed by the Supreme Court, and there's 302 00:17:19,680 --> 00:17:22,440 Speaker 1: some that say it's really not a valid theory. Um 303 00:17:22,560 --> 00:17:24,960 Speaker 1: Meta argued that it wasn't a valid theory, and they 304 00:17:25,000 --> 00:17:27,280 Speaker 1: also argued that even if it is a valid theory, 305 00:17:27,480 --> 00:17:30,120 Speaker 1: the standard by which you have to prove that there'd 306 00:17:30,119 --> 00:17:32,960 Speaker 1: be potential competition is very high. So in this case, 307 00:17:33,040 --> 00:17:34,679 Speaker 1: not only did the court say, you know, this is 308 00:17:34,680 --> 00:17:37,160 Speaker 1: a valid theory. You know, even though the case law 309 00:17:37,200 --> 00:17:39,560 Speaker 1: is from the nineteen seventies and we haven't really seen 310 00:17:39,600 --> 00:17:41,679 Speaker 1: anything since then, this is a valid theory that the 311 00:17:41,760 --> 00:17:45,199 Speaker 1: FDC can rely on. A merger can be anti competitive 312 00:17:45,640 --> 00:17:48,520 Speaker 1: even if one of the companies, the buyer, is only 313 00:17:48,560 --> 00:17:51,639 Speaker 1: a potential entrant into the market and doesn't compete today. 314 00:17:51,920 --> 00:17:53,439 Speaker 1: And I think that was a big step for the 315 00:17:53,440 --> 00:17:56,280 Speaker 1: FTC to get that ruling. And the court also said 316 00:17:56,640 --> 00:17:58,760 Speaker 1: that the standard isn't as high as Meta says it 317 00:17:58,800 --> 00:18:01,080 Speaker 1: has to be. For them to prove that right, they 318 00:18:01,080 --> 00:18:04,520 Speaker 1: have to prove some reasonable probability that the buyer would 319 00:18:04,600 --> 00:18:06,679 Speaker 1: enter the market. They don't have to go beyond that. 320 00:18:06,720 --> 00:18:10,800 Speaker 1: They don't have to show parallel conduct or oligobalistic conduct 321 00:18:10,840 --> 00:18:12,879 Speaker 1: in the market today, which is what Meta had argued. 322 00:18:13,160 --> 00:18:15,400 Speaker 1: So that's a win for the FTC because it gives 323 00:18:15,400 --> 00:18:18,479 Speaker 1: it a blueprint for future cases. In line of that, 324 00:18:18,560 --> 00:18:21,840 Speaker 1: why did the judge rule against the FTC in stopping 325 00:18:21,880 --> 00:18:25,159 Speaker 1: the merger? So basically what the judge ruled here is 326 00:18:25,160 --> 00:18:27,600 Speaker 1: the evidence simply didn't show Ben that there was a 327 00:18:27,640 --> 00:18:31,000 Speaker 1: reasonable probability that they would have entered this dedicated VR 328 00:18:31,160 --> 00:18:35,120 Speaker 1: fitness app market but for the acquisition of Within. They 329 00:18:35,280 --> 00:18:38,000 Speaker 1: looked at all the evidence, the testimony and the documents. 330 00:18:38,080 --> 00:18:40,600 Speaker 1: What it showed, the judge said, is that Meta thought 331 00:18:40,640 --> 00:18:43,200 Speaker 1: about it, they contemplated it um and they thought about 332 00:18:43,240 --> 00:18:46,520 Speaker 1: lots of possibilities in terms of getting into VR fitness, 333 00:18:46,520 --> 00:18:48,800 Speaker 1: but that they would not have entered that. The FTC 334 00:18:48,920 --> 00:18:51,680 Speaker 1: didn't show that they probably would have entered if they 335 00:18:51,680 --> 00:18:53,959 Speaker 1: didn't buy Within. So this was a failure on the 336 00:18:53,960 --> 00:18:56,639 Speaker 1: facts and on the evidence, and not a failure on 337 00:18:56,680 --> 00:18:59,360 Speaker 1: the legal theory. And I think June, that's probably why 338 00:18:59,400 --> 00:19:02,639 Speaker 1: the FTC chosen not to appeal right, because it's a 339 00:19:02,640 --> 00:19:06,760 Speaker 1: lot harder on appeal to reverse a lower courts finding 340 00:19:06,760 --> 00:19:08,880 Speaker 1: of facts based on the evidence. They are the ones 341 00:19:08,920 --> 00:19:11,080 Speaker 1: that looked at the documents, the lower court judge, they're 342 00:19:11,119 --> 00:19:13,800 Speaker 1: the ones that heard the testimony, and they're listening to 343 00:19:13,840 --> 00:19:16,720 Speaker 1: that and reading the documents and determining how they think 344 00:19:16,720 --> 00:19:19,480 Speaker 1: they shake out. The appellate panel can't really do that. 345 00:19:19,800 --> 00:19:22,080 Speaker 1: So if the FTC were arguing, well, they made an 346 00:19:22,160 --> 00:19:24,840 Speaker 1: error of law here, the appellate panel would have more 347 00:19:24,880 --> 00:19:27,479 Speaker 1: discretion right to reverse the lower court, but not in 348 00:19:27,480 --> 00:19:30,000 Speaker 1: this case, And in fact, the FTC is probably pretty 349 00:19:30,000 --> 00:19:33,040 Speaker 1: happy with where they came out on the law. The FTC. 350 00:19:33,280 --> 00:19:36,560 Speaker 1: You can challenge mergers on two tracks in the federal 351 00:19:36,640 --> 00:19:40,480 Speaker 1: court system and in house. So could the FTC have 352 00:19:40,600 --> 00:19:43,720 Speaker 1: tried to stop the deal in a process before an 353 00:19:43,720 --> 00:19:48,879 Speaker 1: FTC administrative judge. Yes, absolutely, and that process was ongoing, 354 00:19:49,000 --> 00:19:51,440 Speaker 1: and by the way, if it had continued, the FTC 355 00:19:51,520 --> 00:19:54,119 Speaker 1: stopped it. But had it continued, the hearings would have 356 00:19:54,160 --> 00:19:56,840 Speaker 1: started yesterday, and there was scheduled to start on February. 357 00:19:57,800 --> 00:20:00,680 Speaker 1: I think what happened here is that it's much harder 358 00:20:00,720 --> 00:20:03,760 Speaker 1: to prove the case in this internal proceeding, which is 359 00:20:03,760 --> 00:20:06,480 Speaker 1: called a Part three than it was in the lower 360 00:20:06,560 --> 00:20:09,399 Speaker 1: court in the hearing which was just for a preliminary junction. 361 00:20:09,440 --> 00:20:12,679 Speaker 1: The standard is higher. So in court where they just lost, 362 00:20:12,960 --> 00:20:16,200 Speaker 1: they really only had to show, well, there was some 363 00:20:16,359 --> 00:20:20,159 Speaker 1: reasonable questions on the merits. Maybe it was fair to 364 00:20:20,280 --> 00:20:22,240 Speaker 1: dig in deep Burg to see if they would have 365 00:20:22,280 --> 00:20:25,520 Speaker 1: success to prove that this deal is anti competitive. But 366 00:20:25,600 --> 00:20:28,240 Speaker 1: in the internal proceeding they really have to show that 367 00:20:28,280 --> 00:20:32,080 Speaker 1: the deal itself would substantially less in competition. So it's 368 00:20:32,119 --> 00:20:34,600 Speaker 1: it's harder to prove and so in this case, I 369 00:20:34,640 --> 00:20:37,240 Speaker 1: think if you can't prove it with the lower standard, 370 00:20:37,320 --> 00:20:39,800 Speaker 1: you probably can't prove it with the more difficult standard. 371 00:20:39,840 --> 00:20:42,840 Speaker 1: And also the companies have closed, so once they're integrated 372 00:20:42,880 --> 00:20:45,600 Speaker 1: and closed, it's much harder later, even if you win 373 00:20:45,640 --> 00:20:47,720 Speaker 1: in court to get an order to unwind. So I 374 00:20:47,720 --> 00:20:50,720 Speaker 1: think that's probably why they stopped. They withdrew the Part 375 00:20:50,760 --> 00:20:54,480 Speaker 1: three and said we're done, and FTC spokesperson said the 376 00:20:54,600 --> 00:20:57,879 Speaker 1: f GC is still deciding whether or not to continue 377 00:20:57,920 --> 00:21:00,960 Speaker 1: an in house trial before the admit strative judge, so 378 00:21:01,040 --> 00:21:03,600 Speaker 1: they could revive the challenge. Do you think there's any 379 00:21:03,760 --> 00:21:07,720 Speaker 1: chance that they would I think it's probably unlikely. First 380 00:21:07,720 --> 00:21:10,280 Speaker 1: of all, as I said, the deals closed, the companies 381 00:21:10,320 --> 00:21:12,960 Speaker 1: are going to integrate. So even if they went before 382 00:21:13,000 --> 00:21:15,159 Speaker 1: the judge and nine months from now or ten months 383 00:21:15,200 --> 00:21:18,159 Speaker 1: from now they had a decision that was good for them, 384 00:21:18,200 --> 00:21:20,760 Speaker 1: I doubt the judge would actually unwind the deal because 385 00:21:20,760 --> 00:21:24,000 Speaker 1: it's just, you know, you're unscrambling the eggs um. And also, 386 00:21:24,160 --> 00:21:27,080 Speaker 1: they recently lost in front of the Administrative Law judge 387 00:21:27,080 --> 00:21:30,119 Speaker 1: a somewhat similar suit based on potential competition, and they 388 00:21:30,200 --> 00:21:32,639 Speaker 1: may be worried that what they'll come out with is 389 00:21:32,680 --> 00:21:35,400 Speaker 1: worse than what they've come out with from the district court. 390 00:21:35,480 --> 00:21:38,960 Speaker 1: So I suspect they probably won't. You know, I always 391 00:21:39,320 --> 00:21:43,280 Speaker 1: have heard that these agencies have an easier time before 392 00:21:43,440 --> 00:21:48,399 Speaker 1: their own in house judges than in federal court. But 393 00:21:48,600 --> 00:21:51,720 Speaker 1: you're saying the standards were higher before the in house judge. 394 00:21:52,080 --> 00:21:54,480 Speaker 1: So in this case, the standard was higher because the 395 00:21:54,560 --> 00:21:57,679 Speaker 1: FTC was seeking just a preliminary injunction, so they're not 396 00:21:57,800 --> 00:22:00,920 Speaker 1: seeking an order that the deal is anti competitive. They're 397 00:22:00,960 --> 00:22:03,720 Speaker 1: simply asking a judge to look at the likelihood that 398 00:22:03,800 --> 00:22:06,040 Speaker 1: they could win on the merits, the likelihood that they 399 00:22:06,040 --> 00:22:09,280 Speaker 1: could prove in a bigger and more drawn out proceeding 400 00:22:09,560 --> 00:22:12,480 Speaker 1: that the deal would violate the antitrust laws, and all 401 00:22:12,600 --> 00:22:15,119 Speaker 1: that they really have to do is raise questions that 402 00:22:15,200 --> 00:22:17,560 Speaker 1: make it fair that it would be fair to dig 403 00:22:17,600 --> 00:22:20,960 Speaker 1: in deeper, right, whereas in front of the administrative law 404 00:22:21,040 --> 00:22:23,520 Speaker 1: judge they have to prove that it's anti competitive, So 405 00:22:23,600 --> 00:22:26,280 Speaker 1: it's just it. It's a slightly higher standard. I think 406 00:22:26,680 --> 00:22:28,959 Speaker 1: where we think about the fact that it might be 407 00:22:29,000 --> 00:22:31,119 Speaker 1: easier for the FTC to win in front of their 408 00:22:31,119 --> 00:22:33,439 Speaker 1: own administrative law judge than in front of the federal 409 00:22:33,520 --> 00:22:36,640 Speaker 1: judge is that the federal judges historically have been business 410 00:22:36,640 --> 00:22:40,600 Speaker 1: friendly and probably more business friendly than the administrative law 411 00:22:40,640 --> 00:22:43,639 Speaker 1: judge at the FTC IS. And the other thing is, 412 00:22:44,240 --> 00:22:47,120 Speaker 1: I think in the past we've seen them mostly win 413 00:22:47,440 --> 00:22:51,000 Speaker 1: internally because they've brought cases that are easy for them 414 00:22:51,040 --> 00:22:53,600 Speaker 1: to win. They've brought the cases that where the evidence 415 00:22:53,640 --> 00:22:57,160 Speaker 1: always on their side. Things are different today. The FTCs 416 00:22:57,200 --> 00:23:00,320 Speaker 1: bringing cases that are hard to win. They're bringing new cases, 417 00:23:00,359 --> 00:23:02,560 Speaker 1: they're basing it on novel theories. These are cases that 418 00:23:02,560 --> 00:23:05,040 Speaker 1: are harder to win. And so far, what they found 419 00:23:05,080 --> 00:23:07,720 Speaker 1: is that the administrative law judge hasn't necessarily been on 420 00:23:07,760 --> 00:23:11,680 Speaker 1: their side. As you said, the law was on their side, 421 00:23:11,880 --> 00:23:15,240 Speaker 1: and they may be happy with that, But Lena khn 422 00:23:15,960 --> 00:23:19,159 Speaker 1: is trying to push the boundaries of antitrust law. And 423 00:23:19,200 --> 00:23:21,640 Speaker 1: when the public looks at this, what do they see? 424 00:23:21,720 --> 00:23:25,240 Speaker 1: They see Meta one, This the FDC laws the FTC, 425 00:23:25,320 --> 00:23:27,080 Speaker 1: you know what, its hands up in the air and 426 00:23:27,160 --> 00:23:31,280 Speaker 1: drop its case. Is that a bad look for the FTC? 427 00:23:31,640 --> 00:23:34,320 Speaker 1: You know, I would say yes, it is a bad 428 00:23:34,359 --> 00:23:36,800 Speaker 1: look for the FTC in the short term. But I 429 00:23:36,840 --> 00:23:39,320 Speaker 1: think what Lena Khan and the majority of the FDC 430 00:23:39,480 --> 00:23:41,720 Speaker 1: have in mind is the long term. You know, they're 431 00:23:41,720 --> 00:23:45,120 Speaker 1: trying to make substantial changes to the law or incremental 432 00:23:45,200 --> 00:23:47,679 Speaker 1: changes I should say to the law that take time 433 00:23:48,000 --> 00:23:52,040 Speaker 1: and will take losses and will take taking risks. So 434 00:23:52,160 --> 00:23:55,080 Speaker 1: in the near term they lost, that's what most people 435 00:23:55,119 --> 00:23:57,920 Speaker 1: will see in the news. They're losing other cases, They're 436 00:23:57,960 --> 00:24:01,160 Speaker 1: bringing other risky cases, and I in the short term 437 00:24:01,160 --> 00:24:03,040 Speaker 1: it doesn't look good for them, But in the long 438 00:24:03,160 --> 00:24:06,000 Speaker 1: term this is probably going to help them because in 439 00:24:06,080 --> 00:24:09,360 Speaker 1: this case, the facts just simply didn't support the idea 440 00:24:09,640 --> 00:24:12,280 Speaker 1: that Meta was a potential entrant. But in the next case, 441 00:24:12,840 --> 00:24:15,240 Speaker 1: they're good on the law at least in the Ninth 442 00:24:15,240 --> 00:24:18,520 Speaker 1: Circuit and some other circuits. Northern District of California was 443 00:24:18,560 --> 00:24:21,239 Speaker 1: where this was, and the facts and the evidence might 444 00:24:21,280 --> 00:24:23,480 Speaker 1: be more on their side. There might be more substantial 445 00:24:23,480 --> 00:24:26,480 Speaker 1: evidence that this buyer was thinking about and was a 446 00:24:26,480 --> 00:24:30,280 Speaker 1: potential entrant and and didn't enter and instead bought a rival. Right, 447 00:24:30,560 --> 00:24:33,840 Speaker 1: So this gives them a legau possibly in the next case, 448 00:24:34,040 --> 00:24:36,919 Speaker 1: and so things might in the long term turn around 449 00:24:37,040 --> 00:24:39,879 Speaker 1: and that they'll start to have wins. The FTC has 450 00:24:39,960 --> 00:24:44,040 Speaker 1: separately filed a lawsuit against Meta, asking a court to 451 00:24:44,200 --> 00:24:48,120 Speaker 1: force it to sell subsidiaries Instagram and WhatsApp. So those 452 00:24:48,160 --> 00:24:51,200 Speaker 1: are done deals, done for a long time. Where does 453 00:24:51,240 --> 00:24:54,840 Speaker 1: that stand? And how difficult to battle is that? That's 454 00:24:54,840 --> 00:24:56,600 Speaker 1: a different kind of case in the federal court. It's 455 00:24:56,640 --> 00:24:59,240 Speaker 1: taking a lot longer, that's in depth litigation, it's not 456 00:24:59,320 --> 00:25:02,360 Speaker 1: a preliminary in junction. And I think again, I think 457 00:25:02,400 --> 00:25:04,600 Speaker 1: that's probably a bit of a losing battle for the 458 00:25:04,640 --> 00:25:07,520 Speaker 1: FTC because what they're trying to do is show that 459 00:25:07,880 --> 00:25:11,240 Speaker 1: an intention by Meta over time to just seek out 460 00:25:11,359 --> 00:25:13,720 Speaker 1: companies that might have competed with them, that might have 461 00:25:13,800 --> 00:25:16,639 Speaker 1: grown to be a larger competitor um and been a 462 00:25:16,680 --> 00:25:18,720 Speaker 1: threat and to buy them up before they could be 463 00:25:18,720 --> 00:25:21,800 Speaker 1: a threat. And perhaps Meta did have that pattern, and 464 00:25:21,920 --> 00:25:24,600 Speaker 1: perhaps that was the intention. But I think the difficulty 465 00:25:24,680 --> 00:25:26,960 Speaker 1: here is that they would have to show that but 466 00:25:27,160 --> 00:25:31,040 Speaker 1: for Facebook at the time buying what's happened buying Instagram, 467 00:25:31,160 --> 00:25:33,520 Speaker 1: that those two companies would have risen up to be 468 00:25:33,840 --> 00:25:37,480 Speaker 1: a social media networking competitor to Facebook. And I think 469 00:25:37,520 --> 00:25:40,359 Speaker 1: that's a very very difficult thing to show this but 470 00:25:40,520 --> 00:25:43,959 Speaker 1: four world, especially because some would argue that Instagram has 471 00:25:44,000 --> 00:25:47,200 Speaker 1: become popular because of the resources that Facebook but behind 472 00:25:47,240 --> 00:25:49,680 Speaker 1: Instagram after buying it. So I think that that's a 473 00:25:49,800 --> 00:25:51,840 Speaker 1: very difficult case to prove, and where they're still in 474 00:25:51,880 --> 00:25:54,399 Speaker 1: the discovery process there, so we've got some time ahead 475 00:25:54,400 --> 00:25:56,720 Speaker 1: of us on that one. You talk about how the 476 00:25:56,760 --> 00:25:59,840 Speaker 1: FTC is in this for the long haul, the antitrust battle, 477 00:26:00,000 --> 00:26:02,480 Speaker 1: a battle against the tech companies. But if there's a 478 00:26:02,560 --> 00:26:07,440 Speaker 1: change in administrations, the FTC maybe going in a totally 479 00:26:07,440 --> 00:26:12,360 Speaker 1: different direction and this whole march forward may just be stopped. 480 00:26:12,880 --> 00:26:15,880 Speaker 1: I mean, you're absolutely right. It all depends on new 481 00:26:15,960 --> 00:26:18,640 Speaker 1: leadership at the FTC. If there's a change in administration, 482 00:26:18,760 --> 00:26:22,040 Speaker 1: certainly the chair position will change and the majority will 483 00:26:22,080 --> 00:26:25,240 Speaker 1: flip from Democratic to Republican if if there is a change, 484 00:26:25,400 --> 00:26:27,880 Speaker 1: Even if the next president is also a Democrat, things 485 00:26:27,920 --> 00:26:31,000 Speaker 1: could still change at the FTC because that there are 486 00:26:31,119 --> 00:26:34,720 Speaker 1: terms that end for the commissioners. You know. I think 487 00:26:34,720 --> 00:26:39,320 Speaker 1: that there is some bipartisan push here to try to 488 00:26:39,400 --> 00:26:41,879 Speaker 1: do something to curb the power and dominance of the 489 00:26:41,880 --> 00:26:45,159 Speaker 1: big tech platforms, and that is a bit behind what 490 00:26:45,240 --> 00:26:47,920 Speaker 1: the FTC is doing. There's no doubt that they could 491 00:26:48,000 --> 00:26:50,439 Speaker 1: make strides that could then get pulled back by the 492 00:26:50,480 --> 00:26:52,679 Speaker 1: next administration. But I do think that there is a 493 00:26:52,720 --> 00:26:56,040 Speaker 1: concern that is bipartisan right now about the dominance of 494 00:26:56,080 --> 00:26:58,000 Speaker 1: big tech and some of the patterns of the last 495 00:26:58,040 --> 00:26:59,840 Speaker 1: ten years of the big tech companies, And so I 496 00:27:00,000 --> 00:27:03,200 Speaker 1: think there's a good chance that new leadership may actually 497 00:27:03,920 --> 00:27:05,800 Speaker 1: they could pull back a little bit, but would still 498 00:27:05,840 --> 00:27:08,920 Speaker 1: pursue some of what the FTC is pursuing. Now, Thanks Jen, 499 00:27:09,119 --> 00:27:13,280 Speaker 1: that's Bloomberg Intelligence Senior litigation analyst Jennifer Ree, and that's 500 00:27:13,320 --> 00:27:15,960 Speaker 1: it for this edition of the Bloomberg Law Show. Remember 501 00:27:16,000 --> 00:27:18,040 Speaker 1: you can always get the latest legal news on our 502 00:27:18,080 --> 00:27:22,399 Speaker 1: Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, 503 00:27:22,440 --> 00:27:27,440 Speaker 1: and at www Dot Bloomberg dot com, slash podcast Slash Law, 504 00:27:27,880 --> 00:27:30,479 Speaker 1: and remember to tune into The Bloomberg Law Show every 505 00:27:30,520 --> 00:27:33,960 Speaker 1: week night at ten pm Wall Street Time. I'm June 506 00:27:33,960 --> 00:27:36,159 Speaker 1: Grosso and you're listening to Bloomberg