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

2
00:00:11,119 --> 00:00:14,600
Speaker 2: The prosecution's case against Donald Trump in the hush money

3
00:00:14,640 --> 00:00:19,000
Speaker 2: trial is nearing an end. It's star witness, Michael Cohen

4
00:00:19,120 --> 00:00:22,680
Speaker 2: was back on the stand today as prosecutors continue to

5
00:00:22,800 --> 00:00:25,639
Speaker 2: try to connect Trump to the hush money payment to

6
00:00:25,680 --> 00:00:29,840
Speaker 2: adult film actress Stormy Daniels. Joining me is former federal

7
00:00:29,880 --> 00:00:34,720
Speaker 2: prosecutor Robert Mintz, a partner Maccarter and English Michael Cone.

8
00:00:35,240 --> 00:00:36,199
Speaker 1: The star witness.

9
00:00:36,479 --> 00:00:39,639
Speaker 2: By every account, do you think the prosecution could get

10
00:00:39,640 --> 00:00:41,920
Speaker 2: a conviction without his testimony?

11
00:00:42,200 --> 00:00:46,600
Speaker 3: Michael o'cone is absolutely the key figure in this trial.

12
00:00:46,640 --> 00:00:51,120
Speaker 3: He's the linchpin of this entire alleged crime because he

13
00:00:51,400 --> 00:00:54,760
Speaker 3: was the person who carried out the alleged orders of

14
00:00:54,800 --> 00:00:58,080
Speaker 3: former President Trump. He was the person who arranged for

15
00:00:58,120 --> 00:01:01,000
Speaker 3: the payment that he is the person who provides for

16
00:01:01,240 --> 00:01:05,640
Speaker 3: the jurors the insider's view of the complete hatching of

17
00:01:05,720 --> 00:01:09,800
Speaker 3: this alleged conspiracy. So he is the central figure and

18
00:01:09,880 --> 00:01:13,759
Speaker 3: ultimately the prosecution will either sink or swim based upon

19
00:01:13,880 --> 00:01:15,520
Speaker 3: the credibility of his testimony.

20
00:01:16,000 --> 00:01:20,559
Speaker 2: He's also the only person whose testimony includes what Trump

21
00:01:20,600 --> 00:01:23,560
Speaker 2: allegedly said and knew about the payment to poor an

22
00:01:23,600 --> 00:01:28,120
Speaker 2: actress Stormy Daniels. But he's such a flawed witness, such

23
00:01:28,120 --> 00:01:32,119
Speaker 2: a problematic witness. You know, he's been convicted for lying

24
00:01:32,160 --> 00:01:35,039
Speaker 2: to Congress, lying to banks, and in his testimony he's

25
00:01:35,040 --> 00:01:38,280
Speaker 2: had to say over and over again that wasn't true,

26
00:01:38,400 --> 00:01:43,119
Speaker 2: that wasn't true. So why would the jury believe him?

27
00:01:43,520 --> 00:01:46,560
Speaker 3: Well, there is no question that he's an enormously flawed

28
00:01:46,600 --> 00:01:52,400
Speaker 3: witness from the standpoint of prosecutors. Typically, prosecutors do use

29
00:01:52,480 --> 00:01:55,760
Speaker 3: cooperating witnesses who carry with them a certain amount of baggage.

30
00:01:56,040 --> 00:01:58,720
Speaker 3: They're often people who have committed other crimes. They are

31
00:01:58,760 --> 00:02:01,720
Speaker 3: often people who have lied before who get caught in

32
00:02:01,840 --> 00:02:06,160
Speaker 3: lies based upon tape recordings and other related information. But

33
00:02:06,280 --> 00:02:10,440
Speaker 3: Michael Coheny does stand alone in the pantheon of cooperating

34
00:02:10,480 --> 00:02:14,320
Speaker 3: witnesses in terms of the breath and scope of the

35
00:02:14,400 --> 00:02:18,120
Speaker 3: information and the evidence that defense lawyers will be able

36
00:02:18,160 --> 00:02:21,720
Speaker 3: to level at him throughout his testimony because he not

37
00:02:21,840 --> 00:02:26,560
Speaker 3: only has obviously I vendebta against former President Trump, but

38
00:02:26,639 --> 00:02:30,960
Speaker 3: he's been extremely vocal about it. He's also a convicted

39
00:02:31,320 --> 00:02:34,680
Speaker 3: pursurer and they will make great use of that. Reminding

40
00:02:35,000 --> 00:02:37,320
Speaker 3: the jurors over and over again that he was convicted

41
00:02:37,520 --> 00:02:40,880
Speaker 3: for lying to Congress, lying to banks, he will say,

42
00:02:40,960 --> 00:02:43,959
Speaker 3: and prosecutors will no doubt argue that that was all

43
00:02:44,000 --> 00:02:47,960
Speaker 3: done at the direction of Donald Trump, and Donald Trump

44
00:02:48,080 --> 00:02:50,840
Speaker 3: was the one who selected him to carry out the

45
00:02:50,919 --> 00:02:53,639
Speaker 3: type of work that he wanted. So he was in

46
00:02:53,720 --> 00:02:57,600
Speaker 3: many ways the living embodiment of the Trump organization, or

47
00:02:57,600 --> 00:02:59,880
Speaker 3: at least the part of the Trump organization that willa

48
00:03:00,200 --> 00:03:04,080
Speaker 3: he carried out these shady schemes. But still the defense

49
00:03:04,160 --> 00:03:06,960
Speaker 3: lawyers have a lot to work with here. There's proof

50
00:03:07,000 --> 00:03:10,760
Speaker 3: of lying, there is a clear vendetta here, and there

51
00:03:10,760 --> 00:03:15,919
Speaker 3: are examples after examples of how Michael Tone has personally

52
00:03:15,960 --> 00:03:20,480
Speaker 3: profited from this incident, making millions of dollars from books,

53
00:03:20,720 --> 00:03:25,399
Speaker 3: from TikTok appearances, and apparently is now fucking a reality

54
00:03:25,480 --> 00:03:29,320
Speaker 3: TV show. So that does give them the opportunity to

55
00:03:29,560 --> 00:03:31,720
Speaker 3: argue to jers if this is a person who will

56
00:03:31,760 --> 00:03:34,760
Speaker 3: stay or do anything to make money, and at this

57
00:03:34,880 --> 00:03:38,520
Speaker 3: point his way of making money is attacking former President

58
00:03:38,520 --> 00:03:40,760
Speaker 3: Trump and linking him to these alleged crimes.

59
00:03:40,920 --> 00:03:44,200
Speaker 2: It seemed like there was a contradiction in what Com

60
00:03:44,320 --> 00:03:48,200
Speaker 2: was saying. On one hand that Trump was a just

61
00:03:48,320 --> 00:03:50,320
Speaker 2: do it guy, you know, he would tell him just

62
00:03:50,360 --> 00:03:53,200
Speaker 2: get it done. But then on the other hand that

63
00:03:53,640 --> 00:03:57,200
Speaker 2: Trump looked at every penny that was going out of

64
00:03:57,240 --> 00:04:01,080
Speaker 2: the company. Are those contradictory or can can they be reconciled?

65
00:04:02,080 --> 00:04:04,440
Speaker 3: I think they can be reconciled. But you're right that

66
00:04:04,480 --> 00:04:07,760
Speaker 3: they are contradictory. I mean it shows on a certain

67
00:04:07,840 --> 00:04:11,720
Speaker 3: level former President Trump and the way he ran his organization.

68
00:04:12,160 --> 00:04:14,360
Speaker 3: He did it on a high level. He gave orders,

69
00:04:14,440 --> 00:04:16,839
Speaker 3: he told people what to do. He didn't get into

70
00:04:16,880 --> 00:04:18,919
Speaker 3: the weeds as to how they should do it. But

71
00:04:18,960 --> 00:04:21,080
Speaker 3: then there is also evidence that he did like to

72
00:04:21,200 --> 00:04:24,120
Speaker 3: follow up and wanted to know a lot of the minutia,

73
00:04:24,440 --> 00:04:26,800
Speaker 3: what was going on, how was getting done, why he

74
00:04:26,920 --> 00:04:29,279
Speaker 3: was getting done, and so it was. It is a

75
00:04:29,320 --> 00:04:32,840
Speaker 3: bit of a contradiction, but often people are a contradictory

76
00:04:32,880 --> 00:04:35,160
Speaker 3: in nature, and so I think there's a sufficient evidence

77
00:04:35,200 --> 00:04:37,560
Speaker 3: here to show that there were these two sides to

78
00:04:37,640 --> 00:04:40,240
Speaker 3: the way the Trump organization was being run by former

79
00:04:40,279 --> 00:04:41,040
Speaker 3: President Trump.

80
00:04:41,200 --> 00:04:44,840
Speaker 2: At the end of the direct examination, the last part

81
00:04:44,920 --> 00:04:49,159
Speaker 2: of the direct was the prosecutor taking Cohen through you know,

82
00:04:49,240 --> 00:04:55,280
Speaker 2: his various plea deals and convictions, etc. And allowing him

83
00:04:55,279 --> 00:04:58,320
Speaker 2: at the end a mea culpa saying that his moral

84
00:04:58,360 --> 00:04:59,400
Speaker 2: compass was off.

85
00:05:00,040 --> 00:05:01,080
Speaker 1: Is that something that.

86
00:05:01,040 --> 00:05:03,760
Speaker 2: You expected the prosecution to do at the very end

87
00:05:03,880 --> 00:05:07,120
Speaker 2: or could they have sandwich that somewhere else in the testimony.

88
00:05:07,600 --> 00:05:10,880
Speaker 3: Yeah, Usually that type of testimony comes more at the

89
00:05:10,920 --> 00:05:15,360
Speaker 3: beginning of a case. The basic rule for prosecutors is,

90
00:05:15,440 --> 00:05:18,040
Speaker 3: when you have a witness that has a lot of baggage,

91
00:05:18,320 --> 00:05:20,800
Speaker 3: that has a lot of things that he or she

92
00:05:20,880 --> 00:05:23,440
Speaker 3: may have done that you know the defense knows about

93
00:05:23,480 --> 00:05:25,640
Speaker 3: and they are going to bring it up with a

94
00:05:25,760 --> 00:05:30,320
Speaker 3: ferocious attempt to discredit your witness, you front that evidence

95
00:05:30,480 --> 00:05:33,560
Speaker 3: before they get a chance to raise it during cross examination.

96
00:05:33,720 --> 00:05:36,919
Speaker 3: So it's no surprise that they're going through all of

97
00:05:36,920 --> 00:05:40,960
Speaker 3: these contradictions, the convictions for lying, all of the bad

98
00:05:41,040 --> 00:05:43,520
Speaker 3: things that they think Michael Cohen has done. And not

99
00:05:43,640 --> 00:05:47,159
Speaker 3: only did they do it through his own testimony, but

100
00:05:47,240 --> 00:05:51,000
Speaker 3: here we saw prosecutors really beginning to attack their own

101
00:05:51,040 --> 00:05:55,080
Speaker 3: witness through prior witnesses. They had Hope Hicks, for example,

102
00:05:55,360 --> 00:05:59,479
Speaker 3: testifying about Michael Cohen, and other witnesses testifying about Michael

103
00:05:59,560 --> 00:06:02,920
Speaker 3: Cohnan that were less than flattering. But it was I

104
00:06:02,960 --> 00:06:06,240
Speaker 3: think a very shrewd move by prosecutors to try to

105
00:06:06,279 --> 00:06:09,880
Speaker 3: begin very early on to paint Michael Cone as a

106
00:06:09,920 --> 00:06:14,040
Speaker 3: flawed character. They're trying to show jurors that they understand

107
00:06:14,360 --> 00:06:16,680
Speaker 3: that Michael Cone is not a paragon of virtue, that

108
00:06:16,720 --> 00:06:19,640
Speaker 3: Michael Cone has lied before, that Michael Cone is an

109
00:06:19,760 --> 00:06:24,480
Speaker 3: imperfect witness. But on the other hand, he is believable

110
00:06:24,560 --> 00:06:27,839
Speaker 3: according to prosecutors because of the detailed information that he

111
00:06:27,960 --> 00:06:30,479
Speaker 3: is giving jurors and the fact that a lot of

112
00:06:30,480 --> 00:06:33,480
Speaker 3: the testimony that he has given is being corroborated by

113
00:06:33,560 --> 00:06:35,520
Speaker 3: other witnesses and by documents.

114
00:06:35,760 --> 00:06:39,440
Speaker 2: When the cross started, there were more than eighty objections

115
00:06:39,480 --> 00:06:42,560
Speaker 2: in less than half an hour by the prosecution, whereas

116
00:06:42,600 --> 00:06:47,560
Speaker 2: the defense objected very little during the direct testimony. It

117
00:06:47,600 --> 00:06:50,760
Speaker 2: started with a question where Todd Blanche asked con about

118
00:06:50,760 --> 00:06:53,640
Speaker 2: a Twitter post where Cohen called the defense layer a

119
00:06:53,680 --> 00:06:57,560
Speaker 2: crying little blank. It was objected to, and then the

120
00:06:57,640 --> 00:07:00,800
Speaker 2: judge struck it from the record. Is that a tough

121
00:07:00,839 --> 00:07:02,000
Speaker 2: way to begin across?

122
00:07:03,080 --> 00:07:06,200
Speaker 3: Well, No, I think you do expect defense lawyers to

123
00:07:06,320 --> 00:07:09,080
Speaker 3: come out of the gate very aggressively, and even in

124
00:07:09,120 --> 00:07:13,120
Speaker 3: the circumstance where the question is stricken, they still make

125
00:07:13,200 --> 00:07:16,440
Speaker 3: their points. The judgeable instructures not to consider the question

126
00:07:16,600 --> 00:07:19,400
Speaker 3: or the answer, but they've heard it, and you will

127
00:07:19,440 --> 00:07:23,320
Speaker 3: see defense lawyers come out very aggressively, even asking questions

128
00:07:23,320 --> 00:07:25,800
Speaker 3: that they know are going to draw objections, and even

129
00:07:25,840 --> 00:07:29,120
Speaker 3: asking questions that they know may draw objections that are

130
00:07:29,160 --> 00:07:31,760
Speaker 3: going to be sustained by the court. But it's really

131
00:07:31,800 --> 00:07:35,320
Speaker 3: setting the stage. It's showing sures that defense lawyers do

132
00:07:35,400 --> 00:07:38,440
Speaker 3: not believe this witness, that they are going to attack

133
00:07:38,520 --> 00:07:41,640
Speaker 3: his testimony, that they are going to challenge his testimony

134
00:07:41,640 --> 00:07:44,320
Speaker 3: at every turn. I think it just sets the stage

135
00:07:44,320 --> 00:07:46,280
Speaker 3: for what we are going to see over the next

136
00:07:46,320 --> 00:07:49,720
Speaker 3: several days as the Trump defense team goes at Michael

137
00:07:49,880 --> 00:07:53,560
Speaker 3: Cohne and tries to pick apart his testimony and his credibility.

138
00:07:54,360 --> 00:07:57,000
Speaker 2: They also, and this is not hard to do, to

139
00:07:57,160 --> 00:08:03,400
Speaker 2: show this litany of Cohen's attack Trump attacks in books,

140
00:08:03,440 --> 00:08:07,960
Speaker 2: in podcasts, since TikTok, I mean, it seems like it's

141
00:08:08,000 --> 00:08:10,880
Speaker 2: easy for them to show that he's biased against Trump.

142
00:08:11,240 --> 00:08:12,600
Speaker 1: How does that affect the juries?

143
00:08:12,840 --> 00:08:16,880
Speaker 3: Well, the ideal witness from the prosecution standpoint is a

144
00:08:16,880 --> 00:08:19,920
Speaker 3: witness who has not made any statements about the case,

145
00:08:20,160 --> 00:08:22,920
Speaker 3: who has never spoken about it, publicly, who has never

146
00:08:22,960 --> 00:08:26,400
Speaker 3: written about it, who basically has no prior record that

147
00:08:26,440 --> 00:08:30,000
Speaker 3: defense lawyers can use to cross examine the witness. This

148
00:08:30,240 --> 00:08:32,840
Speaker 3: is the polar opposite of that, because Michael Cone has

149
00:08:32,840 --> 00:08:36,440
Speaker 3: spoken to anybody and everybody who would listen, He's written books,

150
00:08:36,440 --> 00:08:40,720
Speaker 3: he's done podcasts. It is virtually impossible for prosecutors to

151
00:08:40,880 --> 00:08:43,840
Speaker 3: blunt all of the statements that he has made and

152
00:08:44,040 --> 00:08:46,720
Speaker 3: all of the instances in which he has shown a

153
00:08:46,920 --> 00:08:51,080
Speaker 3: strong dislike for former President Trump and obviously a bias

154
00:08:51,160 --> 00:08:54,040
Speaker 3: against him. So that's something that prosecutors just have to

155
00:08:54,080 --> 00:08:57,760
Speaker 3: conceive comes with Michael Cohne, and they just have to

156
00:08:57,920 --> 00:09:00,920
Speaker 3: argue that despite the fact that he clearly has a

157
00:09:00,960 --> 00:09:04,920
Speaker 3: bias and even perhaps a vendetta against him at this point,

158
00:09:04,920 --> 00:09:08,080
Speaker 3: that he's still nonetheless telling the truth. And there is

159
00:09:08,160 --> 00:09:11,560
Speaker 3: some testimony that prosecutors can point to to show that

160
00:09:11,640 --> 00:09:15,960
Speaker 3: for a very long time Michael Cone was incredibly loyal

161
00:09:16,000 --> 00:09:19,600
Speaker 3: to former President Trump, and their statements by former President

162
00:09:19,640 --> 00:09:24,000
Speaker 3: Trump that wor reciprocally loyal to Michael Cohne, staying that

163
00:09:24,040 --> 00:09:26,959
Speaker 3: Michael Cohne was a good man and a good lawyer.

164
00:09:27,240 --> 00:09:30,120
Speaker 3: So you can really see that this is a relationship

165
00:09:30,240 --> 00:09:33,679
Speaker 3: that has changed dramatically over time due to circumstances.

166
00:09:34,120 --> 00:09:37,679
Speaker 2: I'm surprised the prosecution is ending its case with Cohen.

167
00:09:38,200 --> 00:09:41,640
Speaker 2: I thought they would end with a less controversial witness

168
00:09:41,800 --> 00:09:45,080
Speaker 2: or someone who would back him up with documents or

169
00:09:45,080 --> 00:09:45,920
Speaker 2: something like that.

170
00:09:46,000 --> 00:09:48,240
Speaker 1: What do you think about the way they're ending their case.

171
00:09:48,679 --> 00:09:51,040
Speaker 3: It is a little bit of a surprise. You typically

172
00:09:51,120 --> 00:09:54,040
Speaker 3: want to save this star witness, the one who you

173
00:09:54,240 --> 00:09:56,840
Speaker 3: know the defense is going to savage for days on

174
00:09:56,920 --> 00:09:59,720
Speaker 3: cross examination. You want that to be near the end

175
00:09:59,760 --> 00:10:02,040
Speaker 3: of it case. But you usually do not want it

176
00:10:02,080 --> 00:10:04,800
Speaker 3: to be the very last witness, because you don't want

177
00:10:04,800 --> 00:10:08,640
Speaker 3: the cross examination to be the last thing that youurors

178
00:10:08,800 --> 00:10:12,120
Speaker 3: remember about the witness. Now, prosecutors will get a chance

179
00:10:12,160 --> 00:10:14,920
Speaker 3: to redirect and then there will be recross, but at

180
00:10:14,960 --> 00:10:17,439
Speaker 3: the end of the day, it's really the cross examination

181
00:10:17,559 --> 00:10:19,720
Speaker 3: that will stand out most in their minds, and so

182
00:10:19,920 --> 00:10:22,400
Speaker 3: usually you then want to shift to a witness who

183
00:10:22,440 --> 00:10:26,040
Speaker 3: is less controversial, who might be introducing some documents, something

184
00:10:26,080 --> 00:10:28,480
Speaker 3: that is really unimpeachable, so that you can put a

185
00:10:28,480 --> 00:10:31,240
Speaker 3: witness on the stand who defense lawyers will not be

186
00:10:31,280 --> 00:10:33,600
Speaker 3: able to really score any points with. And so you

187
00:10:33,840 --> 00:10:36,559
Speaker 3: end the trial. On a positive note, with a witness

188
00:10:36,679 --> 00:10:39,400
Speaker 3: whose testimony cannot really be challenged.

189
00:10:39,360 --> 00:10:40,680
Speaker 1: The trial may not end.

190
00:10:41,160 --> 00:10:43,400
Speaker 2: And let's go back to the question that I've asked

191
00:10:43,400 --> 00:10:47,800
Speaker 2: you so many times before. Could Trump or might Trump?

192
00:10:48,480 --> 00:10:51,400
Speaker 2: Would it be wise for Trump to take the stand

193
00:10:51,440 --> 00:10:52,480
Speaker 2: in his own defense.

194
00:10:53,520 --> 00:10:56,320
Speaker 3: Well, obviously that's a decision that he and he alone

195
00:10:56,360 --> 00:10:59,080
Speaker 3: will make. It's also a decision that he will make

196
00:10:59,600 --> 00:11:03,200
Speaker 3: likely consultation with his lawyers at the close of the

197
00:11:03,240 --> 00:11:07,080
Speaker 3: prosecution's case, which is now coming up, so he'll have

198
00:11:07,160 --> 00:11:10,840
Speaker 3: to face that decision. The defense team will begin to

199
00:11:10,880 --> 00:11:14,000
Speaker 3: present their case when the prosecution ends. They can present

200
00:11:14,080 --> 00:11:17,040
Speaker 3: other witnesses first, if there are other defense witnesses, so

201
00:11:17,160 --> 00:11:20,000
Speaker 3: there may be some more time before former President Trump

202
00:11:20,040 --> 00:11:22,640
Speaker 3: has to ultimately make that decision about whether or not

203
00:11:22,679 --> 00:11:26,560
Speaker 3: to testify in his own defense. But the general rule is,

204
00:11:26,640 --> 00:11:30,080
Speaker 3: no matter how effective a defendant may feel they are

205
00:11:30,240 --> 00:11:33,640
Speaker 3: in telling their side of the story, it is usually

206
00:11:33,679 --> 00:11:37,560
Speaker 3: better for defense lawyers to make their case through cross

207
00:11:37,600 --> 00:11:41,280
Speaker 3: examination because the burden of proof lies with the prosecution,

208
00:11:41,720 --> 00:11:44,199
Speaker 3: and to the extent that the defense can pick apart

209
00:11:44,200 --> 00:11:49,000
Speaker 3: prosecution witnesses and raise reasonable doubts in the mind of jurors,

210
00:11:49,040 --> 00:11:52,400
Speaker 3: that's all they have to go for. Remember, the end

211
00:11:52,440 --> 00:11:55,000
Speaker 3: of the day, jurors do not have to find a

212
00:11:55,080 --> 00:11:58,720
Speaker 3: defendant innocent. They simply find them not guilty, which means

213
00:11:58,960 --> 00:12:03,120
Speaker 3: that the prostitution has not met that high level of burden,

214
00:12:03,120 --> 00:12:06,160
Speaker 3: a proof of proving beyond a reasonable doubt. So in

215
00:12:06,240 --> 00:12:08,920
Speaker 3: some ways, when you put a defendant on the stand,

216
00:12:09,559 --> 00:12:14,560
Speaker 3: that becomes a referendum on the credibility of the defendant,

217
00:12:14,800 --> 00:12:17,319
Speaker 3: and that is a difficult battle to win. And it

218
00:12:17,520 --> 00:12:21,480
Speaker 3: also suggested jurors that in some way the defense has

219
00:12:21,559 --> 00:12:23,880
Speaker 3: to prove the innocence of their own client, which is

220
00:12:23,920 --> 00:12:27,400
Speaker 3: not at all the standards, And it also gives prosecutors

221
00:12:27,440 --> 00:12:32,840
Speaker 3: the chance to essentially retry their entire case through cross examination.

222
00:12:33,160 --> 00:12:35,840
Speaker 3: Though in other words, if former President Trump were to

223
00:12:35,840 --> 00:12:38,360
Speaker 3: take the stand, the defense would have an opportunity to

224
00:12:38,480 --> 00:12:42,160
Speaker 3: question him on direct examination, but then when they were done,

225
00:12:42,679 --> 00:12:45,000
Speaker 3: just like the defense had a chance to cross examine

226
00:12:45,000 --> 00:12:49,400
Speaker 3: the prosecution's witness, the prosecutors would spend an enormous amount

227
00:12:49,400 --> 00:12:52,480
Speaker 3: of time cross examining former President Trump, and they could

228
00:12:52,520 --> 00:12:56,320
Speaker 3: literally ask him any question about anything he testified during

229
00:12:56,320 --> 00:12:59,800
Speaker 3: this direct which means they could probably retry the entire

230
00:13:00,000 --> 00:13:04,560
Speaker 3: prostitution case by asking questions on cross a former President Trump.

231
00:13:04,760 --> 00:13:08,280
Speaker 3: That usually does not end particularly well for defendants. So

232
00:13:08,400 --> 00:13:10,600
Speaker 3: it's going to be very interesting to see what he

233
00:13:10,679 --> 00:13:13,719
Speaker 3: does when the time comes to decide whether to take

234
00:13:13,720 --> 00:13:14,880
Speaker 3: the stand in his own defense.

235
00:13:15,120 --> 00:13:17,760
Speaker 2: We'll see if Trump and the defense follow that rule.

236
00:13:17,920 --> 00:13:21,440
Speaker 2: Thanks so much, Bob. That's Robert Mens of Macarter and English.

237
00:13:21,720 --> 00:13:25,720
Speaker 2: Coming up, Republican states challenge new Title nine rules. This

238
00:13:25,840 --> 00:13:30,240
Speaker 2: is bloomberg. At least twenty two Republican led states are

239
00:13:30,400 --> 00:13:34,959
Speaker 2: challenging the Biden administrations new Title nine rule that expands

240
00:13:35,000 --> 00:13:39,960
Speaker 2: protections to LGBTQ students and adds new safeguards for victims

241
00:13:39,960 --> 00:13:43,520
Speaker 2: of sexual assault. Under the new rule, Title nine, which

242
00:13:43,559 --> 00:13:48,040
Speaker 2: forbids discrimination based on sex and education, we'll also protect

243
00:13:48,040 --> 00:13:53,600
Speaker 2: against discrimination based on sexual orientation or gender identity. Joining

244
00:13:53,600 --> 00:13:56,680
Speaker 2: me is Paul Smith, a professor at Georgetown Law. He's

245
00:13:56,720 --> 00:14:00,240
Speaker 2: an expert in civil rights and civil liberties issues. He

246
00:14:00,520 --> 00:14:04,120
Speaker 2: argued in one the landmark gay rights case, Lawrence versus

247
00:14:04,200 --> 00:14:05,840
Speaker 2: Texas at the Supreme Court.

248
00:14:06,200 --> 00:14:07,160
Speaker 1: Pleasure to have you.

249
00:14:07,080 --> 00:14:09,840
Speaker 2: Paul, Will you start by telling us about the Biden

250
00:14:09,840 --> 00:14:13,840
Speaker 2: Administration's expansion of Title nine well.

251
00:14:14,040 --> 00:14:19,240
Speaker 4: The action that was taken just recently to finalize new

252
00:14:19,280 --> 00:14:24,720
Speaker 4: regulations to add additional rights under Title nine to LGBTQ

253
00:14:24,880 --> 00:14:29,640
Speaker 4: students was in many ways a restoration of the rules

254
00:14:29,680 --> 00:14:32,800
Speaker 4: that were in place under Obama and had been cut

255
00:14:32,840 --> 00:14:36,400
Speaker 4: back during the Trump administration. The Biden administration is going

256
00:14:36,440 --> 00:14:40,560
Speaker 4: even further clarifying several things. The first thing is clarifying

257
00:14:40,760 --> 00:14:44,840
Speaker 4: is that discrimination against people based on sexual orientation and

258
00:14:45,040 --> 00:14:50,920
Speaker 4: or transgender status is a form of sex discrimination violating

259
00:14:51,760 --> 00:14:55,240
Speaker 4: Title line is a statute that forbid sex discrimination in

260
00:14:55,680 --> 00:14:59,080
Speaker 4: educational institutions funded by the federal government. The second thing

261
00:14:59,120 --> 00:15:02,000
Speaker 4: it does is it gives very specific examples of what

262
00:15:02,200 --> 00:15:07,520
Speaker 4: constitutes discrimination against people based on sexual orientation or transgender status,

263
00:15:07,720 --> 00:15:11,000
Speaker 4: gender identity, and so, for example, it should be clear

264
00:15:11,120 --> 00:15:15,880
Speaker 4: that schools have to allow transgender students to use the

265
00:15:16,080 --> 00:15:19,920
Speaker 4: bathroom and changing facility consistent with their gender identity. They

266
00:15:19,920 --> 00:15:23,840
Speaker 4: can't refuse to use their preferred pronouns and that sort

267
00:15:23,880 --> 00:15:27,800
Speaker 4: of thing. And you know, discrimination against same sex couples

268
00:15:27,920 --> 00:15:31,240
Speaker 4: in terms of going to the prom or whatever clearly illegal,

269
00:15:31,400 --> 00:15:35,920
Speaker 4: and failure to protect students from harassment and bullying based

270
00:15:36,000 --> 00:15:39,080
Speaker 4: on the fact that they're gay or lesbian or transgender

271
00:15:39,400 --> 00:15:43,040
Speaker 4: is a violation as well. So that's all been clarified

272
00:15:43,200 --> 00:15:46,400
Speaker 4: and set forth in terms that are easy to understand

273
00:15:46,440 --> 00:15:48,920
Speaker 4: and are specific enough so that a lot of the

274
00:15:49,040 --> 00:15:51,560
Speaker 4: fights used to have about what is discrimination and what

275
00:15:51,680 --> 00:15:54,120
Speaker 4: isn't will no longer be happening now.

276
00:15:54,280 --> 00:15:57,320
Speaker 2: Is this because in the last few years a lot

277
00:15:57,360 --> 00:16:01,840
Speaker 2: of Republican controlled states have adopted did laws restricting the

278
00:16:01,920 --> 00:16:07,480
Speaker 2: rights of transgender children. Tense states at least bar trans

279
00:16:07,480 --> 00:16:11,080
Speaker 2: students and staffers from using bathrooms that correspond with their

280
00:16:11,120 --> 00:16:15,280
Speaker 2: gender identities, and then there are restrictions on how LGBTQ

281
00:16:15,400 --> 00:16:19,240
Speaker 2: issues are taught at school. Are these Biden administration updates

282
00:16:19,680 --> 00:16:24,000
Speaker 2: designed specifically to counter those laws or are they standing

283
00:16:24,000 --> 00:16:24,480
Speaker 2: on their own.

284
00:16:24,800 --> 00:16:28,000
Speaker 4: They're part of a much broader and longer term effort

285
00:16:28,160 --> 00:16:34,200
Speaker 4: to establish federal protection for gay and trans people discrimination,

286
00:16:34,680 --> 00:16:37,400
Speaker 4: in this case in the school environment. But we've already

287
00:16:37,400 --> 00:16:40,440
Speaker 4: seen en f a successful effort to establish the illegal

288
00:16:40,520 --> 00:16:42,960
Speaker 4: under federal law to discriminate and employment I was a

289
00:16:43,000 --> 00:16:46,600
Speaker 4: Supreme Court case decided four years ago that interpreted not

290
00:16:47,200 --> 00:16:52,080
Speaker 4: Title nine but Title seven, which covers employment discrimination against

291
00:16:52,120 --> 00:16:56,160
Speaker 4: people based on transgender, stabush or sexual orientation. In the

292
00:16:56,160 --> 00:17:01,160
Speaker 4: workplace is sex discrimination and therefore illegal, And so you know,

293
00:17:01,200 --> 00:17:03,280
Speaker 4: this fight's been going on a long time. I had

294
00:17:03,280 --> 00:17:07,840
Speaker 4: a case nearly ten years ago in North Carolina about

295
00:17:08,000 --> 00:17:11,520
Speaker 4: their bathroom bill was trying to keep transgender students out

296
00:17:11,520 --> 00:17:14,119
Speaker 4: of the bathroom of gender identity, and we were arguing

297
00:17:14,119 --> 00:17:18,479
Speaker 4: about Title nine and a fourteenth Amendment. And so you know,

298
00:17:18,600 --> 00:17:21,359
Speaker 4: while literally this I think has been perceived by the

299
00:17:21,400 --> 00:17:23,960
Speaker 4: Red state attorneys general as a kind of a pushback

300
00:17:23,960 --> 00:17:26,280
Speaker 4: against some of their laws, that it does have some

301
00:17:26,440 --> 00:17:28,919
Speaker 4: of that effect. It is part of a broader battle

302
00:17:28,920 --> 00:17:34,960
Speaker 4: to establish basic protections for transgender and lesbian engained bisexual

303
00:17:35,200 --> 00:17:39,159
Speaker 4: students in federally funded educational institutions, and that intern is

304
00:17:39,160 --> 00:17:41,600
Speaker 4: part of a broader effort to establish protection in all

305
00:17:41,680 --> 00:17:46,160
Speaker 4: kinds of places for people who are experiencing discrimination.

306
00:17:46,960 --> 00:17:47,879
Speaker 1: I believe there are.

307
00:17:47,760 --> 00:17:52,520
Speaker 2: Four lawsuits by attorneys general in more than twenty Republican

308
00:17:53,040 --> 00:17:57,240
Speaker 2: control states. So Republican attorneys general are those lawsuits on

309
00:17:57,320 --> 00:17:58,359
Speaker 2: the same grounds.

310
00:17:58,600 --> 00:18:01,040
Speaker 4: I haven't studied the complaints, but it's pretty easy to

311
00:18:01,040 --> 00:18:03,399
Speaker 4: figure out what they're arguing. Basically, they're going to go

312
00:18:03,440 --> 00:18:07,280
Speaker 4: into court and say these regulations requiring people to have

313
00:18:07,320 --> 00:18:10,639
Speaker 4: access to the appropriate bathroom and changing area, or on

314
00:18:10,720 --> 00:18:16,040
Speaker 4: pronouns or whatever are not properly based in the statute.

315
00:18:16,080 --> 00:18:19,920
Speaker 4: That the Statute doesn't provide a legal basis for protecting

316
00:18:19,920 --> 00:18:23,880
Speaker 4: people from transgender discrimination and sexual orientation discrimination. It's about

317
00:18:23,920 --> 00:18:28,440
Speaker 4: sex discrimination in the more conventional sense, and so it's

318
00:18:28,440 --> 00:18:32,080
Speaker 4: the basic administrative agency challenge to the regulations that is

319
00:18:32,119 --> 00:18:34,160
Speaker 4: going beyond the Statute. I don't know where they file

320
00:18:34,240 --> 00:18:36,120
Speaker 4: these things, but I assume they found courts with nice

321
00:18:36,119 --> 00:18:39,159
Speaker 4: conservative district court judges who may very well agree with them,

322
00:18:39,200 --> 00:18:40,000
Speaker 4: at least initially.

323
00:18:40,320 --> 00:18:42,920
Speaker 1: Yes, they did. They found one of them into Texas.

324
00:18:42,920 --> 00:18:46,399
Speaker 4: Well, it's almost always the one up in Amarillo, Texas.

325
00:18:46,440 --> 00:18:49,240
Speaker 2: Yet right from Texas to the Fifth Circuit to the

326
00:18:49,280 --> 00:18:53,200
Speaker 2: Supreme Court. Perhaps, I mean, you refer to the Bostock case,

327
00:18:53,800 --> 00:18:56,560
Speaker 2: and that was close. That was five to four, right, right,

328
00:18:56,720 --> 00:18:58,960
Speaker 2: So do you think that if this goes up to

329
00:18:59,000 --> 00:19:02,080
Speaker 2: the Supreme Court they'll affirm their changes or do you

330
00:19:02,080 --> 00:19:05,160
Speaker 2: think that they'll go along with the Republican attorneys general?

331
00:19:05,200 --> 00:19:06,400
Speaker 1: Or too soon to tell.

332
00:19:06,400 --> 00:19:08,679
Speaker 4: It's probably too soon to tell, And it's probably not

333
00:19:08,720 --> 00:19:11,199
Speaker 4: a yes or no answer because a lot of what

334
00:19:11,280 --> 00:19:14,000
Speaker 4: may happen in these cases may be sort of careful

335
00:19:14,119 --> 00:19:16,960
Speaker 4: parsing of what some of these rules do. One of

336
00:19:17,000 --> 00:19:20,600
Speaker 4: the things we've seen in this Title nine area is

337
00:19:21,080 --> 00:19:25,240
Speaker 4: people wielding Title nine on both sides. And so, if

338
00:19:25,240 --> 00:19:30,400
Speaker 4: you're against having transgender girls go into the girls room

339
00:19:30,440 --> 00:19:32,840
Speaker 4: in the junior high school, one of the things I

340
00:19:32,960 --> 00:19:35,359
Speaker 4: argue is that it's discriminatory against the rights of the

341
00:19:35,359 --> 00:19:38,200
Speaker 4: other girls. And that's an argument that's been made, and

342
00:19:38,400 --> 00:19:40,920
Speaker 4: say it might be true at locker rooms or whatever.

343
00:19:41,000 --> 00:19:43,879
Speaker 4: And certainly in the area not covered by these the

344
00:19:43,960 --> 00:19:48,920
Speaker 4: area of transgender athletics, that's another area where Title nine

345
00:19:48,920 --> 00:19:51,000
Speaker 4: gets wielded on both sides of the v And so

346
00:19:51,080 --> 00:19:53,879
Speaker 4: one of the things that might happen in a pretty

347
00:19:53,920 --> 00:19:57,080
Speaker 4: conservative Supreme courters they might say, well, we don't dispute

348
00:19:57,119 --> 00:20:00,879
Speaker 4: the idea that discrimination based the sex orientation or transgender

349
00:20:00,880 --> 00:20:04,520
Speaker 4: status can violate tidleline. But what is discrimination? You know,

350
00:20:04,960 --> 00:20:07,920
Speaker 4: if the school says we're going to decide who goes

351
00:20:07,960 --> 00:20:12,160
Speaker 4: to which bathroom based on physical characteristics or gender assigned

352
00:20:12,200 --> 00:20:15,119
Speaker 4: at birth or whatever, and they do that, is that

353
00:20:15,200 --> 00:20:18,800
Speaker 4: discrimination against somebody? That those are issues that have been

354
00:20:18,840 --> 00:20:22,120
Speaker 4: fought out over and over again, and reasonable minds kind

355
00:20:22,119 --> 00:20:23,720
Speaker 4: of disagree about them.

356
00:20:24,480 --> 00:20:30,080
Speaker 2: You mentioned transgender athletes, and the new rules don't address

357
00:20:30,280 --> 00:20:34,200
Speaker 2: transgender athletes, and i've read that yet anyway, well, I've

358
00:20:34,200 --> 00:20:36,840
Speaker 2: read that they might be avoiding that because of the

359
00:20:36,880 --> 00:20:39,719
Speaker 2: election coming up, and how that's such a hot button issue,

360
00:20:39,760 --> 00:20:43,240
Speaker 2: even more so than transgender rights as far as bathrooms,

361
00:20:43,240 --> 00:20:43,680
Speaker 2: et cetera.

362
00:20:44,240 --> 00:20:47,080
Speaker 4: Yeah, it's by far the biggest one. I think they

363
00:20:47,119 --> 00:20:50,920
Speaker 4: got one hundred and fifty thousand comments about the proposed

364
00:20:50,960 --> 00:20:53,680
Speaker 4: regulation that was put out two years ago as part

365
00:20:53,680 --> 00:20:58,800
Speaker 4: of this package to establish the principle the transgender athletes

366
00:20:59,000 --> 00:21:01,160
Speaker 4: need access to the team is just like everyone else

367
00:21:01,240 --> 00:21:05,240
Speaker 4: on an equal basis. And you know, with the pure

368
00:21:05,320 --> 00:21:08,439
Speaker 4: speculation on my part, whether they just found this issue

369
00:21:08,440 --> 00:21:11,960
Speaker 4: harder and therefore they're taking a longer time to finalize,

370
00:21:12,160 --> 00:21:16,959
Speaker 4: or whether they've decided this might be better promulgated in

371
00:21:17,160 --> 00:21:20,760
Speaker 4: December twenty twenty four rather than before the election. It's

372
00:21:20,760 --> 00:21:21,479
Speaker 4: hard to say.

373
00:21:22,119 --> 00:21:26,200
Speaker 2: So. Now, in some Republican led states, governors and education

374
00:21:26,359 --> 00:21:29,760
Speaker 2: secretaries are discouraging state officials from complying with the new

375
00:21:29,800 --> 00:21:30,600
Speaker 2: federal regulation.

376
00:21:30,720 --> 00:21:33,040
Speaker 1: So let's go to Texas, which is always on the

377
00:21:33,080 --> 00:21:33,680
Speaker 1: outer rim.

378
00:21:34,480 --> 00:21:36,879
Speaker 2: The governor, Greg Abbott sent a letter to texas As

379
00:21:36,880 --> 00:21:41,520
Speaker 2: public university systems and community colleges instructing them to disregard

380
00:21:41,560 --> 00:21:45,040
Speaker 2: the new provisions. Texas will not comply with President Joe

381
00:21:45,040 --> 00:21:48,520
Speaker 2: Biden's rewrite of Title nine. I mean, what effect does

382
00:21:48,560 --> 00:21:52,080
Speaker 2: it have on funding for the schools if the schools

383
00:21:52,080 --> 00:21:53,800
Speaker 2: don't comply, well.

384
00:21:53,640 --> 00:21:56,359
Speaker 4: In the theory, that could lead to cutoff of funding,

385
00:21:56,400 --> 00:22:01,040
Speaker 4: although it's a rare situation which schools actually lose their funding.

386
00:22:01,359 --> 00:22:04,040
Speaker 4: But what will really happen here is while the governor

387
00:22:04,080 --> 00:22:09,600
Speaker 4: has made this dramatic statement of disobedience, effectively is that

388
00:22:09,640 --> 00:22:13,160
Speaker 4: they'll be in court within a few days and somebody

389
00:22:13,160 --> 00:22:16,959
Speaker 4: will decide whether these new regulations will be put on

390
00:22:17,040 --> 00:22:20,320
Speaker 4: ice pending the further litigation of the case or not.

391
00:22:20,480 --> 00:22:23,600
Speaker 4: And if they are, then they won't have to comply

392
00:22:23,680 --> 00:22:28,320
Speaker 4: with them a preliminary ruling that stays their effect. If

393
00:22:28,359 --> 00:22:32,119
Speaker 4: they're not, and the judges say, we think the regulations

394
00:22:32,119 --> 00:22:34,560
Speaker 4: can take effect now while you while you litigate up

395
00:22:34,560 --> 00:22:38,000
Speaker 4: through the courts, that becomes a more serious manner. But

396
00:22:38,000 --> 00:22:40,240
Speaker 4: that wouldn't be at all surprised given who got to

397
00:22:40,280 --> 00:22:42,760
Speaker 4: the sign where these cases wouldn't be filed, that they'll

398
00:22:42,760 --> 00:22:45,800
Speaker 4: find judges who will say, let's just enter a preliminary

399
00:22:46,160 --> 00:22:48,919
Speaker 4: order stopping these rigs from being in effect as we

400
00:22:49,160 --> 00:22:50,200
Speaker 4: go up through the courts.

401
00:22:50,960 --> 00:22:54,280
Speaker 2: Another thing that these rules change is the rules that

402
00:22:54,359 --> 00:22:58,840
Speaker 2: the Trump administration put into place about hearings on sexual

403
00:22:58,840 --> 00:23:03,880
Speaker 2: harassment that are on campus, where under the Trump administration,

404
00:23:04,359 --> 00:23:06,200
Speaker 2: the accused had.

405
00:23:06,040 --> 00:23:09,119
Speaker 1: A right to cross examine the accuser.

406
00:23:09,280 --> 00:23:12,439
Speaker 4: It's very clear that there was a perception that the

407
00:23:12,480 --> 00:23:15,840
Speaker 4: pre Trump rules under the Obama administration were too favorable

408
00:23:15,880 --> 00:23:19,040
Speaker 4: to the accuser that Betsy Devas tried to come up

409
00:23:19,080 --> 00:23:22,320
Speaker 4: with a new system that gave greater rights and protections

410
00:23:22,359 --> 00:23:26,040
Speaker 4: to the accused in these cases involving primarily this involves

411
00:23:26,600 --> 00:23:31,080
Speaker 4: student non student sexual violence, date violence, that kind of thing.

412
00:23:31,520 --> 00:23:35,159
Speaker 4: And this does seem to be designed to restore what

413
00:23:35,640 --> 00:23:37,840
Speaker 4: is viewed by the Biden people as a more fair

414
00:23:38,359 --> 00:23:42,800
Speaker 4: balance of rights on both sides of the controversy in

415
00:23:42,840 --> 00:23:44,480
Speaker 4: those difficult cases.

416
00:23:45,080 --> 00:23:49,480
Speaker 2: You know, it's obvious that as administrations change, these rules

417
00:23:49,560 --> 00:23:52,840
Speaker 2: changed back and forth. I mean, it seems like not

418
00:23:52,920 --> 00:23:57,360
Speaker 2: the best way to be establishing rules for schools when

419
00:23:57,520 --> 00:23:59,840
Speaker 2: it changes from administration to administration.

420
00:24:01,000 --> 00:24:04,560
Speaker 4: Yes, it does show you how political A lot of

421
00:24:04,560 --> 00:24:08,080
Speaker 4: this stuff is, and you know, until this gets settled,

422
00:24:08,240 --> 00:24:09,760
Speaker 4: you're going to see some of this. But what I

423
00:24:09,760 --> 00:24:12,159
Speaker 4: think what usually happens in this kind of situation is

424
00:24:12,200 --> 00:24:15,119
Speaker 4: that after a period of it for tat back and forth,

425
00:24:15,160 --> 00:24:17,600
Speaker 4: eventually things kind of calm down and people get used

426
00:24:17,640 --> 00:24:19,679
Speaker 4: to a rule and it stays in place.

427
00:24:20,560 --> 00:24:24,480
Speaker 2: So you've been litigating in this area of LGBTQ rights,

428
00:24:24,880 --> 00:24:28,320
Speaker 2: are you surprised that seems as if in some respects

429
00:24:28,800 --> 00:24:30,000
Speaker 2: we're going backwards.

430
00:24:31,000 --> 00:24:35,680
Speaker 4: There really is a political effort to push back on

431
00:24:35,720 --> 00:24:40,000
Speaker 4: some of the progress that the LGBTQ movement for equality

432
00:24:40,040 --> 00:24:43,200
Speaker 4: seem to be making, looking for vulnerabilities, and the main

433
00:24:43,320 --> 00:24:47,960
Speaker 4: vulnerability that they have found the forces opposed to equality

434
00:24:48,600 --> 00:24:52,680
Speaker 4: is transgender. That's a newer group that has less sort

435
00:24:52,720 --> 00:24:56,480
Speaker 4: of comfort level and among the general population, and so

436
00:24:56,520 --> 00:25:00,440
Speaker 4: they've looked for ways to kind of turn the non

437
00:25:00,520 --> 00:25:04,679
Speaker 4: transgender students who's victims of serving privacy in the bathroom

438
00:25:04,800 --> 00:25:08,639
Speaker 4: or in the locker room, claiming that teachers have a

439
00:25:09,040 --> 00:25:12,479
Speaker 4: religious right not to accept a new pronoun or a

440
00:25:12,520 --> 00:25:15,320
Speaker 4: new name, that kind of thing. And so, while you know,

441
00:25:15,359 --> 00:25:18,520
Speaker 4: certainly there's still plenty of discrimination against same sex couples

442
00:25:18,600 --> 00:25:22,639
Speaker 4: and gay and lesbian people in the school systems. Transgender

443
00:25:22,680 --> 00:25:26,359
Speaker 4: students are a particular focus on a real hot button

444
00:25:26,640 --> 00:25:27,359
Speaker 4: issue right.

445
00:25:27,240 --> 00:25:30,840
Speaker 2: Now and outside the legal questions, I just think it's

446
00:25:30,960 --> 00:25:33,760
Speaker 2: very sad that a vulnerable population has.

447
00:25:33,640 --> 00:25:34,439
Speaker 1: To go through this.

448
00:25:35,000 --> 00:25:38,840
Speaker 4: Transgender people, non binary people, they have very high levels

449
00:25:38,840 --> 00:25:43,000
Speaker 4: of difficulty excepting themselves. The suicide rate is very high,

450
00:25:43,400 --> 00:25:45,679
Speaker 4: and instead of just trying to make it easy as

451
00:25:45,680 --> 00:25:48,439
Speaker 4: possible for them to get through their childhoods, get wherever

452
00:25:48,480 --> 00:25:50,560
Speaker 4: they're going to end up in life, people are actually

453
00:25:50,560 --> 00:25:53,240
Speaker 4: making it harder on purpose. It's really it is sad.

454
00:25:53,600 --> 00:25:56,160
Speaker 2: It's been wonderful having you on, Paul. I really appreciate

455
00:25:56,200 --> 00:25:59,840
Speaker 2: your insights. That's Paul Sman, the professor at Georgetown Law.

456
00:26:00,359 --> 00:26:04,920
Speaker 2: Coming up next are video games addictive causing health issues

457
00:26:05,000 --> 00:26:10,160
Speaker 2: like ADHD and depression. Can children playing video games too

458
00:26:10,240 --> 00:26:14,440
Speaker 2: much over years lead to brain damage, stroke, or multiple

459
00:26:14,480 --> 00:26:17,800
Speaker 2: psychiatric disorders? Those are some of the claims in a

460
00:26:17,840 --> 00:26:21,320
Speaker 2: wave of lawsuits that accuse the video game industry of

461
00:26:21,480 --> 00:26:26,840
Speaker 2: profiting from intentionally promoting mass addictions. Parents' attorneys are attempting

462
00:26:26,880 --> 00:26:30,080
Speaker 2: to have more than a dozen video game addiction lawsuits

463
00:26:30,119 --> 00:26:34,080
Speaker 2: file so far grouped together before a single federal judge

464
00:26:34,119 --> 00:26:37,320
Speaker 2: in Salt Lake City joining me is Bloomberg legal reporter

465
00:26:37,480 --> 00:26:41,680
Speaker 2: Rachel Graff, who has written about these video game addiction lawsuits.

466
00:26:42,080 --> 00:26:46,639
Speaker 2: These parents are saying that the games are not only addictive,

467
00:26:46,680 --> 00:26:51,719
Speaker 2: but they're actually causing physical and mental problems for their kids.

468
00:26:52,600 --> 00:26:57,399
Speaker 5: Yes, so they're claiming that the games have affected their

469
00:26:57,480 --> 00:27:03,200
Speaker 5: children's brains and contributed or caused physical issues such as seizures,

470
00:27:03,359 --> 00:27:07,280
Speaker 5: attention deficit disorder, social isolation, and so on.

471
00:27:07,760 --> 00:27:10,440
Speaker 1: I mean, is there scientific proof to back that up?

472
00:27:12,040 --> 00:27:17,960
Speaker 5: The complaints do cite medical studies that do appear to

473
00:27:18,800 --> 00:27:22,520
Speaker 5: back that up to an extent. The World Health Organization

474
00:27:23,240 --> 00:27:27,400
Speaker 5: actually recognizes I believe they call it Internet gaming disorder

475
00:27:27,480 --> 00:27:32,320
Speaker 5: as a diagnosable illness, but other medical institutions are still

476
00:27:32,760 --> 00:27:35,800
Speaker 5: studying whether they're going to follow suit.

477
00:27:35,880 --> 00:27:40,000
Speaker 2: And tell us about the plaintiff's claim about the algorithm

478
00:27:40,119 --> 00:27:42,560
Speaker 2: functioning like a casino slot machine.

479
00:27:43,040 --> 00:27:47,880
Speaker 5: Sure. So, these gaming lawsuits, and then thousands of other

480
00:27:47,960 --> 00:27:51,040
Speaker 5: lawsuits have also been filed against social media companies for

481
00:27:51,119 --> 00:27:54,680
Speaker 5: being allegedly addictive, and there is even one lawsuit filed

482
00:27:54,920 --> 00:27:58,479
Speaker 5: against dating apps for allegedly being addictive. And what all

483
00:27:58,520 --> 00:28:01,680
Speaker 5: of these lawsuits have in common is that they're claiming

484
00:28:01,800 --> 00:28:07,200
Speaker 5: that the technologies function similar to winning a jackpot at

485
00:28:07,200 --> 00:28:10,560
Speaker 5: a casino. And basically some of the lawsuits site b

486
00:28:10,800 --> 00:28:14,880
Speaker 5: F Skinners and the psychologists experiments with lab mice where

487
00:28:14,880 --> 00:28:18,080
Speaker 5: he found that if the mice pulled a lever, if

488
00:28:18,119 --> 00:28:22,160
Speaker 5: they got treats randomly, they were more likely to keep

489
00:28:22,160 --> 00:28:24,080
Speaker 5: pressing it than if they got the treat, you know,

490
00:28:24,160 --> 00:28:27,600
Speaker 5: consistently and predictably. And so the complaints are saying the

491
00:28:27,600 --> 00:28:31,199
Speaker 5: same thing is happening here, that these children are getting

492
00:28:31,480 --> 00:28:34,560
Speaker 5: random rewards, be it in the form of actual time

493
00:28:34,600 --> 00:28:37,560
Speaker 5: release rewards in the video games, or likes on social

494
00:28:37,600 --> 00:28:40,520
Speaker 5: media or matches on the dating app.

495
00:28:40,640 --> 00:28:43,240
Speaker 2: And how have the video game companies been responding.

496
00:28:43,800 --> 00:28:47,320
Speaker 5: So one of the hurdles that the litigation faces is

497
00:28:47,760 --> 00:28:52,360
Speaker 5: actually proving that these video games directly caused some of

498
00:28:52,360 --> 00:28:56,080
Speaker 5: the harms alleged and that the children aren't just experiencing

499
00:28:56,120 --> 00:28:58,880
Speaker 5: some of these illnesses and other effects as a result

500
00:28:58,920 --> 00:29:01,880
Speaker 5: of their day to day life. So that's one issue,

501
00:29:02,000 --> 00:29:04,920
Speaker 5: and then the gaming companies have also said that millions

502
00:29:04,960 --> 00:29:07,280
Speaker 5: of people play these games every day and they don't

503
00:29:07,280 --> 00:29:08,320
Speaker 5: have these problems.

504
00:29:08,720 --> 00:29:11,680
Speaker 2: Yeah, I mean that seems to be a big issue.

505
00:29:11,880 --> 00:29:14,240
Speaker 2: Do you know how many lawsuits there are already and

506
00:29:14,280 --> 00:29:18,240
Speaker 2: how many kids are alleged to have been affected this way?

507
00:29:18,800 --> 00:29:21,880
Speaker 5: It's nowhere near as many as a social media litigation,

508
00:29:21,920 --> 00:29:24,640
Speaker 5: which again I believe is now over a thousand lawsuits.

509
00:29:24,680 --> 00:29:27,760
Speaker 5: I mean, there's at least a dozen of these types

510
00:29:27,760 --> 00:29:30,440
Speaker 5: of lawsuits that were filed against the gaming companies, but

511
00:29:30,680 --> 00:29:34,959
Speaker 5: there are more filed quite frequently, and so I expect

512
00:29:35,000 --> 00:29:36,920
Speaker 5: they will continue to be filed.

513
00:29:37,360 --> 00:29:40,240
Speaker 2: Before you go on explain what the social media lawsuits

514
00:29:40,240 --> 00:29:40,680
Speaker 2: are about.

515
00:29:40,920 --> 00:29:45,120
Speaker 5: So those lawsuits, they have been consolidated in California and

516
00:29:45,240 --> 00:29:48,840
Speaker 5: state court, and then others have been consolidated in federal court.

517
00:29:48,920 --> 00:29:51,480
Speaker 5: And there are, like I said, many hundreds, if not

518
00:29:51,600 --> 00:29:56,600
Speaker 5: over a thousand, I believe, filed by state attorneys general

519
00:29:56,800 --> 00:30:00,880
Speaker 5: and school districts and parents of children and claiming that

520
00:30:01,160 --> 00:30:06,080
Speaker 5: the social media company is including Facebook, Instagram, Snapchat, TikTok,

521
00:30:06,200 --> 00:30:10,200
Speaker 5: that they've intentionally designed their products to addict young people

522
00:30:10,280 --> 00:30:14,320
Speaker 5: and have contributed to this mental health crisis among children.

523
00:30:14,760 --> 00:30:17,960
Speaker 2: And none of those lawsuits have gone to trial yet.

524
00:30:17,800 --> 00:30:22,080
Speaker 5: Right right, we're still a ways off from that. The

525
00:30:22,120 --> 00:30:25,480
Speaker 5: social media lawsuits, the judges in the state court and

526
00:30:25,520 --> 00:30:29,640
Speaker 5: the federal court issued somewhat positive rulings. They allowed some

527
00:30:29,720 --> 00:30:32,280
Speaker 5: claims to move forward, and so the people who brought

528
00:30:32,280 --> 00:30:34,560
Speaker 5: those complaints I think are viewing those as a win,

529
00:30:34,840 --> 00:30:37,840
Speaker 5: as are the parents of the video game the video game.

530
00:30:37,760 --> 00:30:40,720
Speaker 2: Lawsuits, let's talk about some of the challenges that you

531
00:30:40,800 --> 00:30:45,200
Speaker 2: mentioned in your story. Explain section two thirty and whether

532
00:30:45,280 --> 00:30:46,800
Speaker 2: that will be a problem for them.

533
00:30:47,320 --> 00:30:52,280
Speaker 5: So Section two thirty is a law that technology companies

534
00:30:52,320 --> 00:30:54,680
Speaker 5: have relied on for a long time to say that

535
00:30:55,440 --> 00:30:59,120
Speaker 5: they're not responsible for any third party content on their sites.

536
00:30:59,360 --> 00:31:03,360
Speaker 5: Social media companies tried to use that law, but the

537
00:31:03,440 --> 00:31:07,000
Speaker 5: judges actually weren't persuaded by that argument, in part because

538
00:31:07,120 --> 00:31:11,960
Speaker 5: they're developing the algorithms that push the third party content

539
00:31:12,400 --> 00:31:14,760
Speaker 5: onto the children, and so it's not like they're completely

540
00:31:14,760 --> 00:31:17,560
Speaker 5: hands off. They are having a role in what these

541
00:31:17,640 --> 00:31:21,520
Speaker 5: children see. The video game lawsuits haven't reached that stage yet.

542
00:31:22,040 --> 00:31:24,560
Speaker 5: Some of the lawyers that I spoke with for this

543
00:31:24,680 --> 00:31:27,680
Speaker 5: article mentioned to me that some of the video game

544
00:31:27,680 --> 00:31:31,600
Speaker 5: companies might have a stronger defense than others roadblocks. For instance,

545
00:31:32,200 --> 00:31:34,640
Speaker 5: as I understand it, they don't develop their own games,

546
00:31:35,200 --> 00:31:37,600
Speaker 5: and so they might have a stronger section to thirty defense,

547
00:31:37,720 --> 00:31:41,440
Speaker 5: because again it is more so third party content that

548
00:31:41,560 --> 00:31:44,520
Speaker 5: maybe other developers who do who do create their own

549
00:31:44,520 --> 00:31:45,600
Speaker 5: games will have.

550
00:31:45,960 --> 00:31:49,400
Speaker 2: Another hurdle might be the First Amendment. That they say

551
00:31:49,440 --> 00:31:52,120
Speaker 2: the content is protected by the First Amendment.

552
00:31:52,600 --> 00:31:55,680
Speaker 5: That's right. Yes, the video game publishers have compared it

553
00:31:55,800 --> 00:32:02,520
Speaker 5: to suing a video game library for distributing supposedly addictive movies,

554
00:32:03,240 --> 00:32:05,560
Speaker 5: and so they're saying that, you know, you wouldn't sue

555
00:32:05,560 --> 00:32:07,440
Speaker 5: over that, so you can't sue us for this, and

556
00:32:07,560 --> 00:32:09,280
Speaker 5: it's protected under the First Amendment.

557
00:32:09,640 --> 00:32:13,360
Speaker 2: You mentioned that the laws governing personal injury how they

558
00:32:13,400 --> 00:32:14,160
Speaker 2: play in here.

559
00:32:14,760 --> 00:32:18,640
Speaker 5: Many of the lawsuits bring product liability claims, which are

560
00:32:18,680 --> 00:32:25,560
Speaker 5: typically brought against physical products for being faulty. These technologies

561
00:32:25,640 --> 00:32:29,680
Speaker 5: aren't really physical products that you can necessarily hold. They're

562
00:32:29,680 --> 00:32:33,480
Speaker 5: more so, you know, algorithms, and the defendants in these

563
00:32:33,560 --> 00:32:37,840
Speaker 5: lawsuits have referred to them as platforms or services to

564
00:32:37,920 --> 00:32:40,080
Speaker 5: try to make that distinction, and so that'll be an

565
00:32:40,560 --> 00:32:43,480
Speaker 5: another source of debate among the parties is whether you

566
00:32:43,480 --> 00:32:48,760
Speaker 5: can actually bring product liability claims against these technologies.

567
00:32:49,240 --> 00:32:51,000
Speaker 2: I don't know if they've gotten to this point yet,

568
00:32:51,440 --> 00:32:54,000
Speaker 2: but perhaps they have. In the social media cases, how

569
00:32:54,000 --> 00:32:57,000
Speaker 2: do they handle the fact that, you know, the parental

570
00:32:57,080 --> 00:33:02,280
Speaker 2: responsibility to supervise your kid and keep them off games

571
00:33:02,360 --> 00:33:06,080
Speaker 2: or apps that seem to be harmful to them, Because

572
00:33:06,080 --> 00:33:08,240
Speaker 2: that's what came to my mind first, Well, the parents

573
00:33:08,280 --> 00:33:09,560
Speaker 2: have to supervise, don't they.

574
00:33:10,240 --> 00:33:12,160
Speaker 5: You would think so, yes, And actually a lot of

575
00:33:12,520 --> 00:33:15,280
Speaker 5: all of these lawsuits, they believe were actually filed by

576
00:33:15,320 --> 00:33:19,120
Speaker 5: the parents claiming that they have been harmed as well.

577
00:33:19,520 --> 00:33:22,480
Speaker 5: They're saying that their children, if they try to prevent

578
00:33:22,520 --> 00:33:25,480
Speaker 5: them from playing video games, that they actually experience withdrawal

579
00:33:25,480 --> 00:33:29,400
Speaker 5: symptoms similar to those that you would experience when trying

580
00:33:29,440 --> 00:33:33,160
Speaker 5: to stop like a nicotine addiction or something like that.

581
00:33:33,520 --> 00:33:37,640
Speaker 2: Tell us about the comparison of these addiction lawsuits to

582
00:33:37,800 --> 00:33:41,320
Speaker 2: the addiction lawsuits against the big tobacco companies.

583
00:33:42,120 --> 00:33:45,840
Speaker 5: So those lawsuits, they also the tobacco lawsuits, they also

584
00:33:45,840 --> 00:33:48,560
Speaker 5: brought product liability claims, and so I think there are

585
00:33:48,640 --> 00:33:53,960
Speaker 5: some similarities. But the tobacco lawsuits, they took a long

586
00:33:54,000 --> 00:33:57,960
Speaker 5: time to reach a resolution. They eventually did, the plaintiffs

587
00:33:57,960 --> 00:34:01,480
Speaker 5: in those cases eventually did achieve major settlements, but I

588
00:34:01,560 --> 00:34:04,240
Speaker 5: believe it took decades, and so I think we're definitely

589
00:34:04,320 --> 00:34:08,040
Speaker 5: still at the early innings with this batch of lawsuits

590
00:34:08,040 --> 00:34:10,799
Speaker 5: against the technology companies, and they're trying to.

591
00:34:10,760 --> 00:34:15,800
Speaker 2: Get these supervised by one judge in a multi district litigation.

592
00:34:16,400 --> 00:34:19,280
Speaker 5: So that has already happened with the social media companies,

593
00:34:19,320 --> 00:34:22,680
Speaker 5: and so all of the hundreds of lawsuits have been

594
00:34:22,719 --> 00:34:27,719
Speaker 5: consolidated in California under either one federal judge or one

595
00:34:27,920 --> 00:34:31,439
Speaker 5: state judge, depending on the specific claims. And so there

596
00:34:31,480 --> 00:34:36,520
Speaker 5: are hundreds of individual lawsuits, but for efficiency's sake, one

597
00:34:36,800 --> 00:34:41,080
Speaker 5: judge is making rulings that apply to all of those lawsuits.

598
00:34:41,160 --> 00:34:45,120
Speaker 5: And the video game lawsuits they haven't been consolidated yet,

599
00:34:45,160 --> 00:34:47,960
Speaker 5: but there is a hearing later this month to try

600
00:34:47,960 --> 00:34:51,960
Speaker 5: to get them consolidated under one federal judge. They're not

601
00:34:52,040 --> 00:34:56,040
Speaker 5: class actions because they're alleging different harms based on the

602
00:34:56,320 --> 00:35:00,400
Speaker 5: individual child, but for efficiency's sake, they are trying to

603
00:35:00,400 --> 00:35:02,760
Speaker 5: to get them before one single judge.

604
00:35:02,880 --> 00:35:04,759
Speaker 1: You know, I'm these kind of things.

605
00:35:04,760 --> 00:35:06,640
Speaker 2: You look at it and you think, well, maybe the

606
00:35:06,800 --> 00:35:08,920
Speaker 2: you know, the video game companies would want to settle

607
00:35:08,920 --> 00:35:11,440
Speaker 2: this and get it out of the headlines, but this

608
00:35:11,800 --> 00:35:14,920
Speaker 2: may be a case that they want to fight because

609
00:35:15,560 --> 00:35:18,200
Speaker 2: a they'll be open to so many claims like this,

610
00:35:18,400 --> 00:35:21,160
Speaker 2: but b it sounds like they have some good defenses.

611
00:35:22,000 --> 00:35:24,839
Speaker 5: I think so, And I don't think anyone really wants

612
00:35:24,920 --> 00:35:29,239
Speaker 5: to prognosticate too much, but I think it's definitely not

613
00:35:29,920 --> 00:35:33,799
Speaker 5: a shoe in for the plaintiffs, and different video game

614
00:35:33,800 --> 00:35:36,799
Speaker 5: publishers might have different results, but it does seem like

615
00:35:37,200 --> 00:35:38,839
Speaker 5: they're certainly not settling yet.

616
00:35:39,000 --> 00:35:43,080
Speaker 2: And I have to ask you about the dating app lawsuit.

617
00:35:43,400 --> 00:35:47,000
Speaker 2: It seems to me like almost bordering on ridiculous claims

618
00:35:47,160 --> 00:35:49,359
Speaker 2: that dating apps are addictive.

619
00:35:50,960 --> 00:35:55,240
Speaker 5: Sure, yeah, so the video games and the social media

620
00:35:55,280 --> 00:35:59,200
Speaker 5: they were filed on behalf of children, and the dating app.

621
00:35:59,239 --> 00:36:01,840
Speaker 5: There's one lass suit and it's filed on behalf of

622
00:36:01,880 --> 00:36:06,200
Speaker 5: adults who use dating apps, claiming that the apps are

623
00:36:06,239 --> 00:36:10,239
Speaker 5: addictive as well. But you know, the harms there are

624
00:36:10,440 --> 00:36:13,840
Speaker 5: allegedly like one hundred dollars that these adults paid in

625
00:36:13,920 --> 00:36:18,360
Speaker 5: subscription fees versus you know, these children who in some

626
00:36:18,480 --> 00:36:20,880
Speaker 5: of the social media cases have me be committed suicide

627
00:36:20,960 --> 00:36:23,880
Speaker 5: or they're you know, suffering from these these serious illnesses.

628
00:36:23,920 --> 00:36:26,319
Speaker 5: And so it's not a one to one comparison.

629
00:36:26,040 --> 00:36:29,080
Speaker 1: No, it's not. It sounds very different. Interesting story.

630
00:36:29,120 --> 00:36:31,360
Speaker 2: Thank you so much for being on the show, Rachel.

631
00:36:31,600 --> 00:36:34,799
Speaker 2: That's Bloomberg Legal reporter Rachel Graff. And that's it for

632
00:36:34,840 --> 00:36:37,839
Speaker 2: this edition of the Bloomberg Law Podcast. Remember you've can

633
00:36:37,920 --> 00:36:40,880
Speaker 2: always get the latest legal news by subscribing and listening

634
00:36:40,880 --> 00:36:44,560
Speaker 2: to the show on Apple Podcasts, Spotify, and at Bloomberg

635
00:36:44,640 --> 00:36:48,719
Speaker 2: dot com, slash podcast, slash Law. I'm June Grosso and

636
00:36:48,800 --> 00:36:50,080
Speaker 2: this is Bloomberg