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Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.

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Speaker 2: According to a judge, the Justice Department's indictment of James

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Speaker 2: Comey was riddled with problems that may give the former

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Speaker 2: FBI director legal grounds to have it dismissed, and US

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Speaker 2: Magistrate Judge William Fitzpatrick has ordered an extraordinary remedy the

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Speaker 2: release of all grand jury materials to the defense due

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Speaker 2: to the prospect that government misconduct may have tainted the

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Speaker 2: grand jury proceedings. In a blistering assessment of the Justice

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Speaker 2: Department's actions leading up to the indictment, Fitzpatrick cited eleven

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Speaker 2: potential missteps, including fundamental misstatements of the lawn to the

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Speaker 2: grand jury by the prosecutor, Lindsay Halligan, the use of

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Speaker 2: potentially privileged communications during the investigation, and unexplained irregularities in

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Speaker 2: the tree transcript of the grand jury proceedings. My guest

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Speaker 2: is former federal prosecutor Robert Mintz, a partner maccarter in English, Bob.

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Speaker 2: In some ways, the judge's opinion seems like a guideline

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Speaker 2: for the defense to ask for a dismissal of the indictment.

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Speaker 2: He outlined the procedural and substance of irregularities that occurred

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Speaker 2: before the grand jury, and said they may give comby

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Speaker 2: legal grounds to have one or more of the counts dismissed.

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Speaker 2: Pretty harsh a condemnation of the government's actions.

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Speaker 3: It was extremely unusual because, as you say, it's extremely

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Speaker 3: rare in the first place, for a judge to be

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Speaker 3: reviewing conduct in front of a grand jury. The grand

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Speaker 3: jury process, even though it's a very important constitutional right,

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Speaker 3: and the prosecutor does not have a basis to charge

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Speaker 3: an individual with a federal crime if it's a felony,

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Speaker 3: it's something that has to go before a grand jury

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Speaker 3: and there has to be a finding of probable cause.

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Speaker 3: But there the reality is, as a federal prosecutor, that

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Speaker 3: is really most of the time just a formality. It's

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Speaker 3: extremely rare, almost unheard of, for grand jurors to refuse

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Speaker 3: to return an indictment when a federal prosecutor presents a

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Speaker 3: case in front of a grand jury.

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Speaker 1: So when you're a.

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Speaker 3: Federal prosecutor, the last thing in the world you want

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Speaker 3: is for a judge to be probing what went on

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Speaker 3: in that grand jury process. That means that as a prosecutor,

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Speaker 3: you're on the defense, and instead of talking about the

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Speaker 3: charges that you're bringing against the defendant, you are defending

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Speaker 3: your own conduct. And that's exactly what's happened here.

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Speaker 2: Judge Fitzpatrick cited eleven potential missteps in the process to

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Speaker 2: obtain the indictment against Komi. So let's start with the

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Speaker 2: defense is challenging whether there was privileged information used, and

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Speaker 2: the judge said the facts established a reasonable basis for

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Speaker 2: the defense to challenge whether privileged information was used directly

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Speaker 2: or indirectly by the government to prepare and present its

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Speaker 2: grand jury presentation. So you have to go back a little,

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Speaker 2: I guess to explain, you know, why there's privileged information here.

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Speaker 3: So what the magistrate judge was tasked with in this

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Speaker 3: circumstance was to decide whether mister Komy had met the

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Speaker 3: very high bar for a defendant to be given full

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Speaker 3: access to the transcripts and recordings of a grand jury proceeding.

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Speaker 3: What ended up happening here was that, in addition to

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Speaker 3: the reasons that Comy's lawyers had argued for access to

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Speaker 3: the grand jury material, the judge found from his own

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Speaker 3: review of the materials a host of new problems new

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Speaker 3: issues that could ultimately lead to the dismissal of the case.

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Speaker 3: The judge went through a series of potential issues that

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Speaker 3: he decided the defense was entitled to probe and to

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Speaker 3: raise before the court as a basis to possibly dismiss

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Speaker 3: the indictment. One of the original issues that Comy's lawyers

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Speaker 3: raise a basis for accessing the grand jury material had

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Speaker 3: to do with search warrants that were executed by the

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Speaker 3: Department of Justice in twenty nineteen and twenty twenty four.

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Speaker 3: Search warrants were executed by the Department of Justice in

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Speaker 3: connection with an entirely separate, earlier investigation owned as Artikades,

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Speaker 3: which took place during President Trump's first presidency and had

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Speaker 3: to do with the potential leaking of information to the

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Speaker 3: media about ongoing investigations by the FBI, and the search

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Speaker 3: warrants were focused on a Columbia University law professor, Daniel Richman,

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Speaker 3: who was a friend of mister Comy's but who would

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Speaker 3: also end up representing him as his lawyer for some

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Speaker 3: period of time, and that created the question of whether

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Speaker 3: or not the information might have been covered by the

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Speaker 3: attorney client privilege. The judge here raised a number of

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Speaker 3: issues as to whether or not there could have been

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Speaker 3: a violation of mister Comy's rights and whether or not

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Speaker 3: privileged information, in other words, communications between mister Comy and

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Speaker 3: mister Richmond when mister Richmond was acting as his lawyer

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Speaker 3: might have seeped into the grand jury presentation and that

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Speaker 3: would have been entirely improper and would have tainted the

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Speaker 3: presentation and could potentially be a basis to dismiss the indictment.

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Speaker 2: Yeah, the judge said that the decision to allow an

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Speaker 2: FBI agent, and there was only one witness in the

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Speaker 2: grand jury, it was an FBI agent. So the decision

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Speaker 2: to allow an agent who was exposed to potentially privileged

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Speaker 2: information to testify before a grand jury is highly irregular

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Speaker 2: and a radical departure from past DOJ practice.

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Speaker 3: Yeah, And what the judge meant by that is there

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Speaker 3: are circumstances when the issue of privilege does arise, and

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Speaker 3: typically it will happen if there is a search warrant

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Speaker 3: that takes place involving an attorney. You know by definition

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Speaker 3: that there may be communications between an attorney and his

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Speaker 3: client when you search an attorney's office. And so what

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Speaker 3: prosecutors do on a routine basis is they set up

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Speaker 3: a separate team of lawyers, lawyers who are not in

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Speaker 3: any way involved in the prosecution, who will go through

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Speaker 3: that material to remove what could be potentially privileged information

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Speaker 3: so that the trial team, the prosecuting team, is not

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Speaker 3: tainted by having access to information that they should not

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Speaker 3: be given access to. What happened here was that one

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Speaker 3: of the FBI agents, who by the government's own admission,

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Speaker 3: had been given a briefing at least on some of

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Speaker 3: the privileged information, that was the sole witness who appeared

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Speaker 3: in front of the grand jury in order to return

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Speaker 3: the indictment. In order to return indictments, prosecutors do not

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Speaker 3: have to present witnesses who have first hand knowledge about

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Speaker 3: the Alleyish crime. They can, and often do, rely on

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Speaker 3: one agent who was allowed to summarize and present hearsay

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Speaker 3: evidence to the grand jury, to summarize all of the

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Speaker 3: government's case, including all the interviews that might have taken place,

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Speaker 3: reviews of documents, basically sum up for the jury or

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Speaker 3: of the government's case through the testimony of a single

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Speaker 3: witness hear What the judge found potentially problematic was that

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Speaker 3: that single witness was somebody who had access to privileged information,

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Speaker 3: and the question is did any of that information, either

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Speaker 3: directly or indirectly seep into the presentation before the grand jury.

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Speaker 3: If that happened, it was improper and could be a

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Speaker 3: serious problem for the government.

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Speaker 2: I've been talking to former federal prosecutor Robert Mintz, a

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Speaker 2: partner Macarter in English. So Bob the prosecutor here. The

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Speaker 2: interim US attorney Lindsay Halligan was Trump's former personal lawyer,

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Speaker 2: had never been a prosecutor before, and she was hastily

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Speaker 2: installed in the position. She presented the case to the

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Speaker 2: grand jury by herself. She was the only one in

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Speaker 2: the room with the grand jurors because the experience against

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Speaker 2: prosecutors in the office. Didn't want to have anything to

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Speaker 2: do with this indictment, and Judge Fitzpatrick found that two

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Speaker 2: different comments Halligan made to the grand jurors represented fundamental

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Speaker 2: misstatements of the law, and her exact comments were redacted

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Speaker 2: from the judge's order. But it appears that she suggested

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Speaker 2: to the grand jury that the fact that Comy didn't

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Speaker 2: testify in his defense should be interpreted as a sign

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Speaker 2: of guilt. I find that stunning, because any lawyer, even

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Speaker 2: a first year law student, should know that a defendant

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Speaker 2: doesn't have to testify. It's a right guaranteed by the

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Speaker 2: Fifth Amendment and no inference can be drawn from that.

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Speaker 3: Well, that's exactly right. And the magistrate judge described these

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Speaker 3: as quote fundamental misstatements of law by the prosecutor in

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Speaker 3: front of the grand jury. And one of the issues

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Speaker 3: that he identified was this Fifth Amendment right.

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Speaker 1: Ishue you.

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Speaker 3: Apparently, during the course of the grand jury in presentation,

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Speaker 3: a grandeuror raised questions, as grandeur is often due to

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Speaker 3: the prosecutor, and the prosecutor has to respond with the

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Speaker 3: proper law in order to give the grand jurors the

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Speaker 3: framework by which to consider whether or not to return

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Speaker 3: an indictment. Here, apparently a grandeuror asked a question, and

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Speaker 3: as you say, the exact response has been redacted. But

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Speaker 3: according to the Magistrate judge, it suggested that mister Comy

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Speaker 3: may have had a burden to explain away the government's evidence.

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Speaker 3: In other words, the inference was that the burden shifted

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Speaker 3: to mister Comy to have to explain why he did

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Speaker 3: what he did, when in fact, under the Fifth Amendment,

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Speaker 3: a defendant has no obligation whatsoever to testify, and the

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Speaker 3: fact that they choose not to testify cannot be used

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Speaker 3: against him. And more fundamentally, in a criminal prosecution, the

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Speaker 3: burden never shifts to the defense. It's always the prosecution's

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Speaker 3: to prove its case beyond a reasonable doubt. So any

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Speaker 3: suggestion that mister Comi's decision not to testify, not to

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Speaker 3: explain away his conduct could somehow be used by grand

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Speaker 3: jurors to infer that he committed a crime would have

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Speaker 3: been improper. The judge also noted that Miss Halligan may

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Speaker 3: have suggested to the grand jury that they did not

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Speaker 3: have to rely only on the record that was presented

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Speaker 3: to them during the grand jury presentation in order to

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Speaker 3: reach a finding of whether or not there was probable cause,

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Speaker 3: but that they could assume and they could be assured

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Speaker 3: of the fact that the government had even more evidence,

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Speaker 3: perhaps better evidence, than was presented to them during the presentation,

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Speaker 3: that could be used at trial, and therefore that the

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Speaker 3: case was even stronger than the evidence presented to them

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Speaker 3: during the grand jury proceeding. If that was done, that

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Speaker 3: too would be entirely improper. The grand jury has to

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Speaker 3: make a decision as to whether or not there is

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Speaker 3: probable cause based solely on the evidence presented to them

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Speaker 3: during the grand jury proceeding. It's really no different than

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Speaker 3: a trial in which jurors have to make a determination

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Speaker 3: as to whether or not the government has met its

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Speaker 3: burden of proof beyond a reasonable doubt based solely on

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Speaker 3: the evidence that's presented to them during the trial. They

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Speaker 3: can't rely on anything outside of the record during the

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Speaker 3: trial proceeding. The same holds true for a grand jurors,

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Speaker 3: and for a prosecutor to just suggest that there is

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Speaker 3: other more powerful evidence that they should consider but has

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Speaker 3: not been presented to them would be entirely improper.

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Speaker 2: I mean her comments basically come down to a defendant

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Speaker 2: has to testify before a grand jury, and trust me,

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Speaker 2: grand jurors, we have a lot more evidence that will

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Speaker 2: prove his guilt, but we're not showing it to you now.

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Speaker 3: Well, I think that's why you saw the opinion written

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Speaker 3: by the magistrate judge to be as strongly worded at

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Speaker 3: as detailed as it was. It was a twenty four

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Speaker 3: page opinion that went not only the issues that mister

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Speaker 3: Comey's lawyers had raised in order to try to gain

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Speaker 3: access to the grand jury transcripts, but also a litany

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Speaker 3: of other issues that he discovered when he reviewed in

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Speaker 3: camera those grand jury transcripts, and he raised serious questions

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Speaker 3: in his mind, I believe as to whether or not

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Speaker 3: there were serious constitutional errors in the presentation, not only

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Speaker 3: the Fifth Amendment question, not only the question that there

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Speaker 3: was evidence outside of the grand jury's purview that they

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Speaker 3: should consider. Even the way the grand jury returned the indictment.

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Speaker 3: In this case, the original indictment presented to the Grand

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Speaker 3: jurors was a three count indictment. When the Grand jurors

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Speaker 3: went back to deliberate, they chose not to return a

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Speaker 3: true bill, which means they voted not in favor of

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Speaker 3: one of the three counts. And now there's a question,

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Speaker 3: based on the transcript of the proceeding, as to whether

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Speaker 3: or not an entirely new indictment with only the two

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Speaker 3: counts that the Grand jurors voted in favor of, was

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Speaker 3: ever presented to them. If that did not happen, if

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Speaker 3: the Grand jurors did not deliberate on the exact indictment

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Speaker 3: that was ultimately presented to the court, that is another

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Speaker 3: issue that could be very problematic.

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Speaker 2: I was impressed that the magistrate judge figured out by

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Speaker 2: the timing of what happened that he thinks the grand

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Speaker 2: jurors did not review the indictment that was finally presented

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Speaker 2: in open court. Now, that's exactly.

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Speaker 3: Right, the judge wrote. If the prosecutor is mistaken about

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Speaker 3: the time she received notification of the grand jury's vote

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Speaker 3: on the original indictment, and this procedure did take place,

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Speaker 3: then the transcript and audio recording provided to the court

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Speaker 3: are incomplete. On the other hand, if this procedure did

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Speaker 3: not take place, then the court is in what the

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Speaker 3: judge described as uncharted legal territory in that the indictment

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Speaker 3: returned in open court was not the same charging document

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Speaker 3: presented to and deliberated upon by the grand jury. Either way,

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Speaker 3: the judge was not satisfied with the explanation prosecutors gave

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Speaker 3: about that process, and that's why the magistrate judge at

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Speaker 3: least has decided to open up all of this grand

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Speaker 3: jury information to the defense, which is a huge benefit

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Speaker 3: to the defense and will likely result in even more

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Speaker 3: motions than the original motions filed by mister Comy's defense team.

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Speaker 2: Bob I was wondering so the judge said that all

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Speaker 2: the grand jury materials that the government filed under seal

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Speaker 2: have to be made available to Comy's lawyers, and also

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Speaker 2: the audio recording of the grand jury proceedings. Could the

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Speaker 2: audio recording reveal things that are not in the transcript.

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Speaker 1: Yeah, that's certainly possible.

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Speaker 3: I mean, the judge here decided to go full transparency

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Speaker 3: and that he is giving everything that was presented to

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Speaker 3: him by the government over to the defense, and that

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Speaker 3: is something that you rarely see. As I said, this

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Speaker 3: is something that is a prosecutor's nightmare. The case should

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Speaker 3: not be about the prosecutor's con right out of the gate.

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Speaker 3: It should be about the defendant's conduct and about whether

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Speaker 3: or not the government can prove that the defendant committed

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Speaker 3: a crime beyond a reasonable doubt. The probe into the

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Speaker 3: conduct by the government is exactly where you want to

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Speaker 3: be if you're on the defense side. But it's the

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Speaker 3: worst place you can possibly be as a prosecutor.

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Speaker 2: So federal prosecutors within a few hours filed an emergency

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Speaker 2: request to the judge in the case we're talking about

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Speaker 2: the magistrate judges order, saying that the magistrate judge's new

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Speaker 2: order is contrary to law, and also that he may

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Speaker 2: have misinterpreted some facts.

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Speaker 1: Well.

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Speaker 3: I think what's happened here is magistrate judges are appointed

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Speaker 3: by the court that they serve in and their decisions

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Speaker 3: generally can be appealed to the district court judge handling

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Speaker 3: the case. And so the government not surprisingly immediately sought

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Speaker 3: to stay, and the district court judge, I think wisely

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Speaker 3: granted it so that he can review everything that went

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Speaker 3: on and review not only what went on in the

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Speaker 3: grand jury, but carefully review the twenty four page decision

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Speaker 3: that was issued by the magistrate judge, and he will

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Speaker 3: make his own decisions about whether or not this grand

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Speaker 3: jury material should be turned over. It's so important and

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Speaker 3: it's so unusual that it's not at all surprising to

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Speaker 3: me that the district court judge wants to weigh in

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Speaker 3: on this before a final decision is made.

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Speaker 2: The magistrate judge works in tandem with the district court judge,

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Speaker 2: so Judge Macimuff probably knows what the magistrate judge was doing.

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Speaker 3: Dor What happens is that magistrate judges are selected by

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Speaker 3: the court, as opposed to district court judges, which are

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Speaker 3: nominated by the President and only appointed with the advice

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Speaker 3: and consent of the Senate. The magistrate judges essentially work

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Speaker 3: with specific district court judges, and generally, on the civil side,

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Speaker 3: they handle a lot of the discovery matters that lead

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Speaker 3: up to trial. On the criminal side, they hear initial

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Speaker 3: hearings with regard to bail and issues of that sort.

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Speaker 3: But they do work hand in glove with the judges

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Speaker 3: that they are assigned to, So typically you will see

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Speaker 3: a district court judge agreeing with much of what their

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Speaker 3: magistrate judge did. But in this case, I think there's

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Speaker 3: no question that Judge Nachmanoff will take a separate look

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Speaker 3: at what happened here because it is so unusual, and

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Speaker 3: make his own decision about whether the grand jury material

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Speaker 3: should be turned over in total as was ordered by

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Speaker 3: the magistrate judge.

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Speaker 2: So Judge Nachmanoff put Fitzpatrick's order on hold. He gave

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Speaker 2: the Justice Department until five pm tomorrow to file its

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Speaker 2: full brief and then Comy side has until five pm

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Speaker 2: Friday to respond. So now yet another judge is involved

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Speaker 2: in this case, and that's the judge considering whether Lindsey

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Speaker 2: Halligan was lawfully appointed. Let's once again explain what the

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Speaker 2: defense's argument about Halligan's appointment.

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Speaker 3: So, in this case, the federal judge is actually a

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Speaker 3: judge from South Carolina as opposed to the Eastern District

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Speaker 3: of Virginia. Because the question before the court is whether

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Speaker 3: or not the US Attorney for the Eastern District of

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Speaker 3: Virginia has been properly appointed, and the decision was made

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Speaker 3: by the Circuit Court, that'd be best to have a

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Speaker 3: judge not in that judicial district making this decision. So

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Speaker 3: the judge from South Carolina, to Judge Curry, is looking

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Speaker 3: at the convoluted process by which Lindsay Halligan was appointed

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Speaker 3: as the interim US Attorney for the Eastern District of Virginia.

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Speaker 3: There had been a career prosecutor who was appointed by

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Speaker 3: President Trump to serve on an interim basis. That interim

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Speaker 3: basis lasts one hundred and twenty days by appointment of

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Speaker 3: the President. After that time period, the judges in the

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Speaker 3: district can then extend that appointment. And that's exactly what

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Speaker 3: happened here with that career prosecutor, Eric Sebert. The Attorney

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Speaker 3: General then fired mister Siebert and appoint did a new

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Speaker 3: prosecutor Lindsay Halligan for a new one hundred and twenty

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Speaker 3: day period, and the question is whether or not the

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Speaker 3: Executive Branch can continue with these one hundred and twenty

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Speaker 3: day interim appointments sort of add infinitum, or whether they

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Speaker 3: can do it only one time and after that time

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Speaker 3: it's up to the district court judges to appoint the

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Speaker 3: US attorney. The statute is actually not clear on the process.

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Speaker 3: It doesn't explicitly say that that one hundred and twenty

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Speaker 3: day appointment can happen only once. But the argument by

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Speaker 3: the defense here is if the court were to accept

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Speaker 3: the government's argument, then the President could really get around

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Speaker 3: the advice and consent of the Senate which is required

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Speaker 3: for a US attorney, by simply doing a series of

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Speaker 3: one hundred and twenty day appointments over and over again,

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Speaker 3: and that could not be what Congress intended.

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Speaker 2: The Justice Department's response to the argument that Lindsay Halligan

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Speaker 2: was not lawfully appointed dismissed any missteps here, saying the

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Speaker 2: administration may have made quote at best, a paperwork error,

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Speaker 2: and also that afterwards the grand jury presentations have been

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Speaker 2: reviewed and ratified by Attorney General Pam Bondy, the Justice

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Speaker 2: Department is trying to say, even if we made a mistake,

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Speaker 2: Pam Bondy looked at it later and approved it. But

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Speaker 2: the judge did not seem too convinced by that.

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Speaker 3: These are all very unusual questions and in very unusual

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Speaker 3: proceedings that there really is no prior precedent for. So

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Speaker 3: it's going to be interesting to see how the courts

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Speaker 3: treat not only her appointment, but the efforts by the

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Speaker 3: Attorney General. In an effort to prop up Halligan's position,

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Speaker 3: Attorney General Bondi designated Halligan as a special attorney for

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Speaker 3: the Justice Department, assigned to oversee cases against former FBI

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Speaker 3: Director James Comey and New York Attorney General Letitia James.

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Speaker 3: So what you're seeing is the Department of Justice kind

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Speaker 3: of struggling here to not only prop up the position

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Speaker 3: of Lindsay Halligan, but also to try to convince the

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Speaker 3: court that any errors that were made in connection with

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Speaker 3: obtaining the indictment against James Comy was more of a

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Speaker 3: paperwork issue and nothing that should result in dismissal of

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Speaker 3: the indictment.

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Speaker 2: If she decides that Lindsay Halligan was not qualified and

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Speaker 2: there was no ratification so to speak by Attorney General

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Speaker 2: Pam Bondi, does the case against Comy then go out

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Speaker 2: the window because of the Statute of limitations.

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Speaker 3: One of the interesting questions that will arise in the

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Speaker 3: event that the court were to determine that Lindsay Halligan's

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Speaker 3: appointment was improper is whether or not the government will

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Speaker 3: have the ability to reindict the case. The case was

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Speaker 3: indicted right at the very end of the five year

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Speaker 3: statute limitations. That's why Lindsay Halligan rushed into the grand

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Speaker 3: jury on very short notice and made this presentation literally

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Speaker 3: days before the five year statute of limitations was set

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Speaker 3: to expire. If her appointment is deemed to be improper,

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Speaker 3: that would mean that the indictment itself is procedurely flawed

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Speaker 3: because somebody who was not properly appointed as a US

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Speaker 3: attorney was the only person who presented the case before

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Speaker 3: the grand jury. The defense will no doubt argue that

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Speaker 3: the government cannot seek to reindict the case because the

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Speaker 3: statutal limitations will have since expired. But there is a

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Speaker 3: statute that says if a case is dismissed on procedural grounds,

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Speaker 3: which may include potentially a situation like this where the

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Speaker 3: attorney who presented the case in front of the grand

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Speaker 3: jury was not appropriately appointed, that the government has a

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Speaker 3: six month grace period to refile that new indictment even

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Speaker 3: though the original five year statual limitations has passed. That

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Speaker 3: will be something that will be front and center if

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Speaker 3: Lindsay Halligan's appointment is ultimately ruled to be improper and

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Speaker 3: the government attempts to refile that indictment outside the five

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Speaker 3: year statue limitations.

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Speaker 2: This case raises so many novel questions. Thanks so much

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Speaker 2: for exploring them with US Bob. That's Robert Mintz of

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Speaker 2: Macarter and English Today. A panel of federal judges shot

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Speaker 2: down Texas's rare mid decade redistricting, delivering the loss to

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Speaker 2: President Trump in a two to one vote. The panel

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Speaker 2: blocked Texas from using a redrawn US House map, saying

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Speaker 2: that substantial evidence shows that Texas racially gerrymander the twenty

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Speaker 2: twenty five map. A Trump appointee and a Biden appointee

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Speaker 2: we're in the majority, and a Reagan appointee in the minority.

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Speaker 2: This closes a path for Republicans to gain five House

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Speaker 2: seats in next year's midterm elections unless the Supreme Court

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Speaker 2: steps in and reverses the decision, But the timeline is tight.

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Speaker 2: Joining me is Ryan Attulo, who covers Texas courts for

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Speaker 2: Bloomberg Law. Ryan tell us why the judges blocked the

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Speaker 2: new map.

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Speaker 4: The panel says that the maps that Texas drew this

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Speaker 4: summer racially discriminated against minority groups. It was a decision

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Speaker 4: that criticized heavily a letter from the Department of Justice

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Speaker 4: that said that the existing maps that Texas had been

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Speaker 4: using were racially discriminatory and therefore needed to be redrawn.

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Speaker 4: The majority in today's opinion strongly disagreed with that letter

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Speaker 4: and shot it down, and they said, Texas, for the

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Speaker 4: upcoming congressional elections in twenty twenty six, you need to

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Speaker 4: use the old maps, not the ones you just passed.

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Speaker 2: Explain what happened at the two week trial.

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Speaker 4: Last month in El Paso, Texas. There was a trial

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Speaker 4: challenging the maps that Texas used on racial gerrymandering grounds.

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Speaker 4: Texas was in a tough spot because initially they said

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Speaker 4: that we need to rea draw these four racial reasons

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Speaker 4: based on that Department of Justice letter. Well, that's tougher

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Speaker 4: to defend than just saying. What they ended up saying

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Speaker 4: is redrew the strictly for partisan gain, which is a

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Speaker 4: very unapologetic position. But you can say, look, we wanted

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Speaker 4: five more seats for the Republican Party so that we

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Speaker 4: can keep Congress after the midterms. That's what they said,

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Speaker 4: and the majority of judges on the panels disagreed. They

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Speaker 4: said no, it was redrawn for racial reasons.

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Speaker 2: And which districts were redrawn.

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Speaker 4: Largely urban districts Dallas, Austin, when near Houston. There were

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Speaker 4: five total that the Republican lawmakers in Texas and President

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Speaker 4: Trump identified as being able to flip from solidly blue

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Speaker 4: to solidly read. And you saw a scramble there, Democratic

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Speaker 4: lawmakers getting Congressional lawmakers getting drawn out of their seats,

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Speaker 4: and what are we going to do. I will run

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Speaker 4: for reelection if the maps are struck down, or I

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Speaker 4: will retire if they're not. So there's been a lot

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Speaker 4: of relief from House Democrats today, not knowing whether they

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Speaker 4: were going to be able to run for their House seat.

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Speaker 4: Now they will be.

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Speaker 2: I assume that Texas is going to appeal this to

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Speaker 2: the Supreme Court since it's a redistricting matter.

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Speaker 4: I would guess they're working on that as we speak June.

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Speaker 4: They're going to go straight to the Supreme Court. They're

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Speaker 4: not not going to the intermediary Fifth Circuit. I think

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Speaker 4: we'll know a little more once they file that. But

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Speaker 4: Attorney General Ken Paxton and Governor Greg Abbott, who used

439
00:26:38,119 --> 00:26:41,240
Speaker 4: to be the Attorney general in Texas before he became governor,

440
00:26:41,560 --> 00:26:45,359
Speaker 4: both came out with statements saying, we strongly disagree with

441
00:26:45,440 --> 00:26:48,879
Speaker 4: this decision and we'll go in straight to the Supreme Court.

442
00:26:49,640 --> 00:26:54,399
Speaker 4: There is a time crunch here because the deadline for

443
00:26:54,920 --> 00:26:59,800
Speaker 4: candidates to file for the congressional primaries is coming up

444
00:27:00,000 --> 00:27:02,480
Speaker 4: a couple weeks December eighth. I believe it is, so

445
00:27:03,040 --> 00:27:05,320
Speaker 4: the Supreme Court may have to act quick or maybe

446
00:27:05,320 --> 00:27:09,199
Speaker 4: they extend that deadline. Anyone's guess at this point, but

447
00:27:09,480 --> 00:27:12,080
Speaker 4: this is something that will probably move pretty quickly.

448
00:27:12,720 --> 00:27:16,800
Speaker 2: Very quickly. I'm sure, Thanks so much. Ryan, that's Bloomberg Laws,

449
00:27:16,960 --> 00:27:22,359
Speaker 2: Ryan Atulo, Meta TikTok, Google and YouTube are challenging a

450
00:27:22,480 --> 00:27:27,480
Speaker 2: California law that forbids social media platforms from allowing miners

451
00:27:27,480 --> 00:27:32,520
Speaker 2: to access personalized feeds without parental consent. They say it

452
00:27:32,680 --> 00:27:37,200
Speaker 2: violates their First Amendment rights. Joining me is Colin Walkee,

453
00:27:37,240 --> 00:27:42,760
Speaker 2: a cybersecurity and data privacy partner at haul Estel. Colin

454
00:27:42,840 --> 00:27:46,280
Speaker 2: tell us about this law. California is protecting Our Kids

455
00:27:46,320 --> 00:27:48,840
Speaker 2: from Social Media Addiction Act.

456
00:27:49,080 --> 00:27:49,280
Speaker 1: Yeah.

457
00:27:49,359 --> 00:27:53,080
Speaker 5: So this is a new law that requires several things,

458
00:27:53,280 --> 00:27:57,600
Speaker 5: one of which is, for example, that individuals provide proof

459
00:27:57,680 --> 00:27:59,879
Speaker 5: that they are over the age of eighteen or a

460
00:28:00,359 --> 00:28:05,200
Speaker 5: parental consent if you're a minor before you get curated algorithms.

461
00:28:05,520 --> 00:28:09,560
Speaker 5: It also requires tech companies to do things like set

462
00:28:09,600 --> 00:28:12,680
Speaker 5: default settings on the amount of time that children see

463
00:28:12,840 --> 00:28:15,919
Speaker 5: curated algorithms, things along those lines.

464
00:28:16,400 --> 00:28:19,480
Speaker 2: Will you explain exactly what a curated algorithm is?

465
00:28:20,240 --> 00:28:23,040
Speaker 5: Yes, So if I go on YouTube and I don't

466
00:28:23,040 --> 00:28:25,919
Speaker 5: log in as Calin Walkie, they generally speaking don't know

467
00:28:25,960 --> 00:28:28,560
Speaker 5: who I am, and so I see a feed, but

468
00:28:28,600 --> 00:28:31,840
Speaker 5: the feed isn't tailored to me or my desires. But

469
00:28:31,920 --> 00:28:34,439
Speaker 5: the moment that I plug in that I'm Callin Walkie

470
00:28:34,440 --> 00:28:37,280
Speaker 5: and here's my Google account access it now knows hey

471
00:28:37,400 --> 00:28:41,360
Speaker 5: Callin likes videos of dogs and ponies, and so that's

472
00:28:41,360 --> 00:28:44,480
Speaker 5: what it shows me. And so these curated algorithms in

473
00:28:44,600 --> 00:28:48,800
Speaker 5: theory get individuals more addictive than they otherwise would because

474
00:28:48,800 --> 00:28:50,720
Speaker 5: they're seeing more of what they want to see.

475
00:28:51,520 --> 00:28:55,200
Speaker 2: What are the social media platforms arguing here?

476
00:28:55,560 --> 00:28:58,360
Speaker 5: So this is actually a lawsuit that is a subsequent

477
00:28:58,400 --> 00:29:01,120
Speaker 5: lawsuit from an earlier one that was brought by a

478
00:29:01,160 --> 00:29:04,680
Speaker 5: trade association called net Choice and YouTube and Meta and

479
00:29:04,720 --> 00:29:07,600
Speaker 5: Google or all members of net Choice, And in that case,

480
00:29:07,640 --> 00:29:11,960
Speaker 5: the Ninth Circuit said, yeah, this law might violate the

481
00:29:12,000 --> 00:29:15,760
Speaker 5: First Amendment because even children have a right to freedom

482
00:29:15,800 --> 00:29:19,000
Speaker 5: of speech and freedom of expression, and so this very

483
00:29:19,000 --> 00:29:22,640
Speaker 5: well may violate the First Amendment. But you, as a

484
00:29:22,680 --> 00:29:25,760
Speaker 5: trade association, do not have standing to make these arguments.

485
00:29:26,200 --> 00:29:28,080
Speaker 1: And so that decision was issued.

486
00:29:27,880 --> 00:29:30,720
Speaker 5: Last month, and now we have Google and Meta coming

487
00:29:30,760 --> 00:29:32,520
Speaker 5: in and going, okay, here we are.

488
00:29:32,480 --> 00:29:33,400
Speaker 1: We have standing.

489
00:29:33,920 --> 00:29:36,080
Speaker 5: Now we want you to know that this violates the

490
00:29:36,120 --> 00:29:39,520
Speaker 5: First Amendment because even children have freedom of speech and

491
00:29:39,600 --> 00:29:43,360
Speaker 5: we have the right to curate these algorithms for children

492
00:29:43,480 --> 00:29:44,840
Speaker 5: as freedom of expression.

493
00:29:45,680 --> 00:29:50,320
Speaker 2: Is there any room in the First Amendment to prevent

494
00:29:50,800 --> 00:29:54,880
Speaker 2: children from hearing things that will be harmful to them?

495
00:29:55,240 --> 00:29:56,480
Speaker 1: There certainly is right.

496
00:29:56,520 --> 00:29:59,600
Speaker 5: So we have regulations that say you can't view pornographic

497
00:29:59,640 --> 00:30:02,520
Speaker 5: material until you're eighteen or twenty one years of age,

498
00:30:02,600 --> 00:30:05,480
Speaker 5: and so there certainly is precedent for that. The problem

499
00:30:05,600 --> 00:30:08,840
Speaker 5: comes though, with regard to how broad is this law.

500
00:30:09,400 --> 00:30:13,400
Speaker 5: This law would cover not just pornographic images that YouTube

501
00:30:13,440 --> 00:30:16,560
Speaker 5: may show, but it would also cover content that is

502
00:30:16,560 --> 00:30:20,520
Speaker 5: perfectly fine for teenagers to view, and so therefore it

503
00:30:20,600 --> 00:30:24,160
Speaker 5: is an overly broad law, according to Google and Meta

504
00:30:24,200 --> 00:30:24,920
Speaker 5: and YouTube.

505
00:30:25,120 --> 00:30:29,600
Speaker 2: The State ags, pointing to its preliminary win in defense

506
00:30:29,640 --> 00:30:32,520
Speaker 2: of the law, it tells about the Ninth Circuits holding.

507
00:30:32,840 --> 00:30:35,440
Speaker 5: Yeah, the Ninth Circuit essentially said that you, as a

508
00:30:35,480 --> 00:30:38,800
Speaker 5: trade association, have not demonstrated a record where when you

509
00:30:38,960 --> 00:30:43,680
Speaker 5: apply this law to a particular algorithm it results in

510
00:30:43,960 --> 00:30:47,640
Speaker 5: something being overly broad. So, for example, they didn't show

511
00:30:47,960 --> 00:30:52,360
Speaker 5: that Google's algorithm apply to both pornographic material and material

512
00:30:52,440 --> 00:30:53,959
Speaker 5: that's acceptable to teenagers.

513
00:30:54,320 --> 00:30:56,920
Speaker 1: Why because that wasn't the argument they were making.

514
00:30:57,520 --> 00:31:00,400
Speaker 5: And so the Ninth Circuit said, Hey, if you have

515
00:31:00,480 --> 00:31:03,680
Speaker 5: a record that can actually show to us that Google's

516
00:31:03,680 --> 00:31:05,440
Speaker 5: algorithm covers both.

517
00:31:05,240 --> 00:31:07,719
Speaker 1: Of these things, then maybe you have a point.

518
00:31:07,880 --> 00:31:11,400
Speaker 5: And so as a result, the trade association loss basically

519
00:31:11,400 --> 00:31:15,200
Speaker 5: on a procedural issue, not so much on a substantive issue.

520
00:31:15,440 --> 00:31:18,000
Speaker 2: Is this a tough argument, then to make to protect

521
00:31:18,000 --> 00:31:21,240
Speaker 2: the laws. Who has the tougher argument, the state AG

522
00:31:21,760 --> 00:31:23,520
Speaker 2: or the internet companies?

523
00:31:23,960 --> 00:31:25,720
Speaker 5: I apparently just think it depends on who you ask.

524
00:31:25,960 --> 00:31:27,680
Speaker 5: The AG is going to say that the tech companies

525
00:31:27,680 --> 00:31:29,560
Speaker 5: do all day long. But unfortunately, I think that the

526
00:31:29,600 --> 00:31:33,120
Speaker 5: tech companies, because of the way we have interpreted the

527
00:31:33,160 --> 00:31:35,760
Speaker 5: First Amendment and the scope and the breadth of the

528
00:31:35,800 --> 00:31:39,480
Speaker 5: information that that covers, I unfortunately think that they will

529
00:31:39,560 --> 00:31:42,040
Speaker 5: ultimately prevail in this matter. It's hard for me to

530
00:31:42,040 --> 00:31:45,200
Speaker 5: think of a single age verification law that has been

531
00:31:45,280 --> 00:31:48,320
Speaker 5: upheld of recent memory. But the other side of it

532
00:31:48,360 --> 00:31:50,440
Speaker 5: too is you know, the thing is is that these

533
00:31:50,440 --> 00:31:51,800
Speaker 5: things are addictive.

534
00:31:51,360 --> 00:31:54,080
Speaker 1: Not just because of the algorithms.

535
00:31:53,640 --> 00:31:58,760
Speaker 5: Showing you curated materials, the phones themselves, the pixels, the

536
00:31:58,800 --> 00:32:02,600
Speaker 5: brightness of the screen means the automatic response is irrespective

537
00:32:02,600 --> 00:32:05,400
Speaker 5: of the fact that the responses you don't want. That's

538
00:32:05,400 --> 00:32:09,200
Speaker 5: what makes these things addictive. They're much more like casinos, right,

539
00:32:09,360 --> 00:32:11,680
Speaker 5: So it's not even necessarily that we need to address

540
00:32:11,680 --> 00:32:12,360
Speaker 5: the algorithms.

541
00:32:12,360 --> 00:32:14,360
Speaker 1: So there's so many other things.

542
00:32:14,080 --> 00:32:17,320
Speaker 5: That we could address that would not run a foul

543
00:32:17,320 --> 00:32:19,960
Speaker 5: of the First Amendment that could be taken advantage of.

544
00:32:20,600 --> 00:32:23,880
Speaker 2: Is there any way for California to pass a different

545
00:32:24,000 --> 00:32:29,240
Speaker 2: law that would somehow escape these First Amendment objections.

546
00:32:30,200 --> 00:32:32,920
Speaker 5: That's the thing is that it becomes very difficult until

547
00:32:33,000 --> 00:32:37,160
Speaker 5: the court is willing to interpret algorithms as something more

548
00:32:37,240 --> 00:32:41,440
Speaker 5: akin to pornography, as something more akin to showing an

549
00:32:41,480 --> 00:32:44,520
Speaker 5: actual harm to children. And I think that's where the

550
00:32:44,560 --> 00:32:46,560
Speaker 5: ag and the law stems from. It stems from the

551
00:32:46,600 --> 00:32:49,600
Speaker 5: fact that we know these curated algorithms and algorithms in general,

552
00:32:50,000 --> 00:32:52,800
Speaker 5: do not help children in their mental health, so let's

553
00:32:52,800 --> 00:32:56,160
Speaker 5: do something about it. And unfortunately, the courts have not

554
00:32:56,440 --> 00:32:59,840
Speaker 5: treated this in the same way they have other materials

555
00:32:59,840 --> 00:33:03,000
Speaker 5: like pornography, And once it gets to that point in time,

556
00:33:03,120 --> 00:33:05,640
Speaker 5: you're talking about something totally different, and I think courts

557
00:33:05,680 --> 00:33:08,480
Speaker 5: may change their mind, But right now, I don't see

558
00:33:08,480 --> 00:33:10,600
Speaker 5: a good way for us to win on a free

559
00:33:10,600 --> 00:33:12,640
Speaker 5: speech ground in a regulation like this.

560
00:33:13,120 --> 00:33:16,560
Speaker 2: In light of all the horrific stories we've heard about

561
00:33:16,760 --> 00:33:21,880
Speaker 2: kids being addicted to social media, I'm a little surprised

562
00:33:21,960 --> 00:33:26,440
Speaker 2: that these companies are taking this tactic because it makes

563
00:33:26,440 --> 00:33:29,880
Speaker 2: them look like they're contributing to the problem instead of

564
00:33:30,560 --> 00:33:32,200
Speaker 2: helping to solve the problem.

565
00:33:32,280 --> 00:33:34,600
Speaker 5: Well, they're actually talking on both sides of the mouth

566
00:33:34,640 --> 00:33:36,280
Speaker 5: at once. So on the one hand, what they are

567
00:33:36,320 --> 00:33:39,520
Speaker 5: actually saying is is we actually curate these feeds in

568
00:33:39,560 --> 00:33:42,240
Speaker 5: the first place for kids to make sure that they're safe.

569
00:33:42,720 --> 00:33:44,840
Speaker 5: We already limit the amount of time that.

570
00:33:44,800 --> 00:33:47,840
Speaker 1: We show them curated feeds. That we're already being proactive.

571
00:33:47,840 --> 00:33:48,920
Speaker 1: That's the first thing they say.

572
00:33:49,400 --> 00:33:51,440
Speaker 5: But on the flip side of that point, they're also saying,

573
00:33:51,520 --> 00:33:53,600
Speaker 5: let us continue to show these kids this because that's

574
00:33:53,600 --> 00:33:55,200
Speaker 5: the best way to get their attention. It's the best

575
00:33:55,240 --> 00:33:57,320
Speaker 5: way for us to make money. You know, you think

576
00:33:57,360 --> 00:33:59,400
Speaker 5: about it, Think about the nineteen eighties and the nineteen

577
00:33:59,440 --> 00:34:01,960
Speaker 5: nineties when used to kick kids out of R rated

578
00:34:02,000 --> 00:34:03,200
Speaker 5: movies because they weren't old.

579
00:34:03,120 --> 00:34:04,000
Speaker 1: Enough to do it right.

580
00:34:04,320 --> 00:34:07,040
Speaker 5: I'm confident those movie theaters would love to have had

581
00:34:07,080 --> 00:34:09,640
Speaker 5: those kids and their dollars in their pockets, but they

582
00:34:09,680 --> 00:34:11,879
Speaker 5: made a rule in staid we're not going to do that.

583
00:34:12,239 --> 00:34:15,680
Speaker 5: These tech companies have not made that rule. They don't care.

584
00:34:16,000 --> 00:34:17,120
Speaker 5: They want the profits.

585
00:34:17,440 --> 00:34:20,400
Speaker 2: And Colin, how does this work? Because my daughter is

586
00:34:20,480 --> 00:34:23,719
Speaker 2: long grown up? How does it work? Do parents have

587
00:34:23,840 --> 00:34:26,440
Speaker 2: to click on something to give their consent?

588
00:34:26,960 --> 00:34:28,600
Speaker 5: So that's part of the complaint is is that what

589
00:34:28,600 --> 00:34:30,600
Speaker 5: would have to happen is a parent would have to

590
00:34:30,680 --> 00:34:34,160
Speaker 5: upload an ID and disclose personal information about that parent

591
00:34:34,560 --> 00:34:37,360
Speaker 5: that they shouldn't have to do in order to access

592
00:34:37,680 --> 00:34:41,440
Speaker 5: freedom of spreach content right. And so for example, that's

593
00:34:41,480 --> 00:34:44,319
Speaker 5: part of the problem with age verification laws for pornography.

594
00:34:45,040 --> 00:34:46,120
Speaker 1: If I am twenty.

595
00:34:45,840 --> 00:34:48,160
Speaker 5: Five years of age, why should I have to prove

596
00:34:48,200 --> 00:34:51,200
Speaker 5: to you that I am this age in order to

597
00:34:51,360 --> 00:34:54,319
Speaker 5: engage in that conduct online? And so that's where the

598
00:34:54,320 --> 00:34:56,440
Speaker 5: objection comes in is that parents, in order to use

599
00:34:56,480 --> 00:34:59,440
Speaker 5: this lawfully may have to disclose information they shouldn't have

600
00:34:59,520 --> 00:35:01,120
Speaker 5: to disclose absent this law.

601
00:35:01,760 --> 00:35:06,960
Speaker 2: What's the status of the lawsuits filed by parents against

602
00:35:07,280 --> 00:35:08,680
Speaker 2: social media companies?

603
00:35:09,640 --> 00:35:13,720
Speaker 5: Yeah, so the most recent lawfoods, specifically with regard to AI,

604
00:35:14,880 --> 00:35:16,960
Speaker 5: those are still in existence to my knowledge, I'm not

605
00:35:17,000 --> 00:35:18,759
Speaker 5: aware of any of that have been dismissed yet.

606
00:35:19,239 --> 00:35:21,200
Speaker 1: I am not aware of any penning ones.

607
00:35:21,280 --> 00:35:23,239
Speaker 5: I mean, there are massed court litigation I think going

608
00:35:23,280 --> 00:35:25,480
Speaker 5: on against some social media companies, but I'm not aware

609
00:35:25,480 --> 00:35:28,920
Speaker 5: of the current status of those. And that's just it

610
00:35:28,760 --> 00:35:32,439
Speaker 5: is that the courts, if they're not going to learn

611
00:35:32,560 --> 00:35:36,279
Speaker 5: how to recategorize addictive algorithms to address it. Under the

612
00:35:36,320 --> 00:35:39,279
Speaker 5: first Amendment. Then they need to rethink how we can

613
00:35:39,320 --> 00:35:43,839
Speaker 5: litigate claims when companies negligently create these algorithms that hurt

614
00:35:43,840 --> 00:35:45,080
Speaker 5: ourselves and our children.

615
00:35:45,640 --> 00:35:48,800
Speaker 2: I don't know what recourse parents have besides the courts.

616
00:35:49,440 --> 00:35:53,760
Speaker 2: Thanks so much, Colin. That's Colin Walkee, cybersecurity and data

617
00:35:53,800 --> 00:35:57,400
Speaker 2: privacy partner at hall Estel. And that's it for this

618
00:35:57,560 --> 00:36:00,320
Speaker 2: edition of The Bloomberg Law Show. Remember you can always

619
00:36:00,320 --> 00:36:03,239
Speaker 2: get the latest legal news on our Bloomberg Law podcasts.

620
00:36:03,480 --> 00:36:06,520
Speaker 2: You can find them on Apple Podcasts, Spotify, and at

621
00:36:06,680 --> 00:36:11,719
Speaker 2: www dot Bloomberg dot com, slash podcast Slash Law, and

622
00:36:11,800 --> 00:36:14,840
Speaker 2: remember to tune into The Bloomberg Law Show every weeknight

623
00:36:14,920 --> 00:36:18,400
Speaker 2: at ten pm Wall Street Time. I'm June Grosso and

624
00:36:18,440 --> 00:36:19,920
Speaker 2: you're listening to Bloomberg