Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2: According to a judge, the Justice Department's indictment of James
Speaker 2: Comey was riddled with problems that may give the former
Speaker 2: FBI director legal grounds to have it dismissed, and US
Speaker 2: Magistrate Judge William Fitzpatrick has ordered an extraordinary remedy the
Speaker 2: release of all grand jury materials to the defense due
Speaker 2: to the prospect that government misconduct may have tainted the
Speaker 2: grand jury proceedings. In a blistering assessment of the Justice
Speaker 2: Department's actions leading up to the indictment, Fitzpatrick cited eleven
Speaker 2: potential missteps, including fundamental misstatements of the lawn to the
Speaker 2: grand jury by the prosecutor, Lindsay Halligan, the use of
Speaker 2: potentially privileged communications during the investigation, and unexplained irregularities in
Speaker 2: the tree transcript of the grand jury proceedings. My guest
Speaker 2: is former federal prosecutor Robert Mintz, a partner maccarter in English, Bob.
Speaker 2: In some ways, the judge's opinion seems like a guideline
Speaker 2: for the defense to ask for a dismissal of the indictment.
Speaker 2: He outlined the procedural and substance of irregularities that occurred
Speaker 2: before the grand jury, and said they may give comby
Speaker 2: legal grounds to have one or more of the counts dismissed.
Speaker 2: Pretty harsh a condemnation of the government's actions.
Speaker 3: It was extremely unusual because, as you say, it's extremely
Speaker 3: rare in the first place, for a judge to be
Speaker 3: reviewing conduct in front of a grand jury. The grand
Speaker 3: jury process, even though it's a very important constitutional right,
Speaker 3: and the prosecutor does not have a basis to charge
Speaker 3: an individual with a federal crime if it's a felony,
Speaker 3: it's something that has to go before a grand jury
Speaker 3: and there has to be a finding of probable cause.
Speaker 3: But there the reality is, as a federal prosecutor, that
Speaker 3: is really most of the time just a formality. It's
Speaker 3: extremely rare, almost unheard of, for grand jurors to refuse
Speaker 3: to return an indictment when a federal prosecutor presents a
Speaker 3: case in front of a grand jury.
Speaker 1: So when you're a.
Speaker 3: Federal prosecutor, the last thing in the world you want
Speaker 3: is for a judge to be probing what went on
Speaker 3: in that grand jury process. That means that as a prosecutor,
Speaker 3: you're on the defense, and instead of talking about the
Speaker 3: charges that you're bringing against the defendant, you are defending
Speaker 3: your own conduct. And that's exactly what's happened here.
Speaker 2: Judge Fitzpatrick cited eleven potential missteps in the process to
Speaker 2: obtain the indictment against Komi. So let's start with the
Speaker 2: defense is challenging whether there was privileged information used, and
Speaker 2: the judge said the facts established a reasonable basis for
Speaker 2: the defense to challenge whether privileged information was used directly
Speaker 2: or indirectly by the government to prepare and present its
Speaker 2: grand jury presentation. So you have to go back a little,
Speaker 2: I guess to explain, you know, why there's privileged information here.
Speaker 3: So what the magistrate judge was tasked with in this
Speaker 3: circumstance was to decide whether mister Komy had met the
Speaker 3: very high bar for a defendant to be given full
Speaker 3: access to the transcripts and recordings of a grand jury proceeding.
Speaker 3: What ended up happening here was that, in addition to
Speaker 3: the reasons that Comy's lawyers had argued for access to
Speaker 3: the grand jury material, the judge found from his own
Speaker 3: review of the materials a host of new problems new
Speaker 3: issues that could ultimately lead to the dismissal of the case.
Speaker 3: The judge went through a series of potential issues that
Speaker 3: he decided the defense was entitled to probe and to
Speaker 3: raise before the court as a basis to possibly dismiss
Speaker 3: the indictment. One of the original issues that Comy's lawyers
Speaker 3: raise a basis for accessing the grand jury material had
Speaker 3: to do with search warrants that were executed by the
Speaker 3: Department of Justice in twenty nineteen and twenty twenty four.
Speaker 3: Search warrants were executed by the Department of Justice in
Speaker 3: connection with an entirely separate, earlier investigation owned as Artikades,
Speaker 3: which took place during President Trump's first presidency and had
Speaker 3: to do with the potential leaking of information to the
Speaker 3: media about ongoing investigations by the FBI, and the search
Speaker 3: warrants were focused on a Columbia University law professor, Daniel Richman,
Speaker 3: who was a friend of mister Comy's but who would
Speaker 3: also end up representing him as his lawyer for some
Speaker 3: period of time, and that created the question of whether
Speaker 3: or not the information might have been covered by the
Speaker 3: attorney client privilege. The judge here raised a number of
Speaker 3: issues as to whether or not there could have been
Speaker 3: a violation of mister Comy's rights and whether or not
Speaker 3: privileged information, in other words, communications between mister Comy and
Speaker 3: mister Richmond when mister Richmond was acting as his lawyer
Speaker 3: might have seeped into the grand jury presentation and that
Speaker 3: would have been entirely improper and would have tainted the
Speaker 3: presentation and could potentially be a basis to dismiss the indictment.
Speaker 2: Yeah, the judge said that the decision to allow an
Speaker 2: FBI agent, and there was only one witness in the
Speaker 2: grand jury, it was an FBI agent. So the decision
Speaker 2: to allow an agent who was exposed to potentially privileged
Speaker 2: information to testify before a grand jury is highly irregular
Speaker 2: and a radical departure from past DOJ practice.
Speaker 3: Yeah, And what the judge meant by that is there
Speaker 3: are circumstances when the issue of privilege does arise, and
Speaker 3: typically it will happen if there is a search warrant
Speaker 3: that takes place involving an attorney. You know by definition
Speaker 3: that there may be communications between an attorney and his
Speaker 3: client when you search an attorney's office. And so what
Speaker 3: prosecutors do on a routine basis is they set up
Speaker 3: a separate team of lawyers, lawyers who are not in
Speaker 3: any way involved in the prosecution, who will go through
Speaker 3: that material to remove what could be potentially privileged information
Speaker 3: so that the trial team, the prosecuting team, is not
Speaker 3: tainted by having access to information that they should not
Speaker 3: be given access to. What happened here was that one
Speaker 3: of the FBI agents, who by the government's own admission,
Speaker 3: had been given a briefing at least on some of
Speaker 3: the privileged information, that was the sole witness who appeared
Speaker 3: in front of the grand jury in order to return
Speaker 3: the indictment. In order to return indictments, prosecutors do not
Speaker 3: have to present witnesses who have first hand knowledge about
Speaker 3: the Alleyish crime. They can, and often do, rely on
Speaker 3: one agent who was allowed to summarize and present hearsay
Speaker 3: evidence to the grand jury, to summarize all of the
Speaker 3: government's case, including all the interviews that might have taken place,
Speaker 3: reviews of documents, basically sum up for the jury or
Speaker 3: of the government's case through the testimony of a single
Speaker 3: witness hear What the judge found potentially problematic was that
Speaker 3: that single witness was somebody who had access to privileged information,
Speaker 3: and the question is did any of that information, either
Speaker 3: directly or indirectly seep into the presentation before the grand jury.
Speaker 3: If that happened, it was improper and could be a
Speaker 3: serious problem for the government.
Speaker 2: I've been talking to former federal prosecutor Robert Mintz, a
Speaker 2: partner Macarter in English. So Bob the prosecutor here. The
Speaker 2: interim US attorney Lindsay Halligan was Trump's former personal lawyer,
Speaker 2: had never been a prosecutor before, and she was hastily
Speaker 2: installed in the position. She presented the case to the
Speaker 2: grand jury by herself. She was the only one in
Speaker 2: the room with the grand jurors because the experience against
Speaker 2: prosecutors in the office. Didn't want to have anything to
Speaker 2: do with this indictment, and Judge Fitzpatrick found that two
Speaker 2: different comments Halligan made to the grand jurors represented fundamental
Speaker 2: misstatements of the law, and her exact comments were redacted
Speaker 2: from the judge's order. But it appears that she suggested
Speaker 2: to the grand jury that the fact that Comy didn't
Speaker 2: testify in his defense should be interpreted as a sign
Speaker 2: of guilt. I find that stunning, because any lawyer, even
Speaker 2: a first year law student, should know that a defendant
Speaker 2: doesn't have to testify. It's a right guaranteed by the
Speaker 2: Fifth Amendment and no inference can be drawn from that.
Speaker 3: Well, that's exactly right. And the magistrate judge described these
Speaker 3: as quote fundamental misstatements of law by the prosecutor in
Speaker 3: front of the grand jury. And one of the issues
Speaker 3: that he identified was this Fifth Amendment right.
Speaker 1: Ishue you.
Speaker 3: Apparently, during the course of the grand jury in presentation,
Speaker 3: a grandeuror raised questions, as grandeur is often due to
Speaker 3: the prosecutor, and the prosecutor has to respond with the
Speaker 3: proper law in order to give the grand jurors the
Speaker 3: framework by which to consider whether or not to return
Speaker 3: an indictment. Here, apparently a grandeuror asked a question, and
Speaker 3: as you say, the exact response has been redacted. But
Speaker 3: according to the Magistrate judge, it suggested that mister Comy
Speaker 3: may have had a burden to explain away the government's evidence.
Speaker 3: In other words, the inference was that the burden shifted
Speaker 3: to mister Comy to have to explain why he did
Speaker 3: what he did, when in fact, under the Fifth Amendment,
Speaker 3: a defendant has no obligation whatsoever to testify, and the
Speaker 3: fact that they choose not to testify cannot be used
Speaker 3: against him. And more fundamentally, in a criminal prosecution, the
Speaker 3: burden never shifts to the defense. It's always the prosecution's
Speaker 3: to prove its case beyond a reasonable doubt. So any
Speaker 3: suggestion that mister Comi's decision not to testify, not to
Speaker 3: explain away his conduct could somehow be used by grand
Speaker 3: jurors to infer that he committed a crime would have
Speaker 3: been improper. The judge also noted that Miss Halligan may
Speaker 3: have suggested to the grand jury that they did not
Speaker 3: have to rely only on the record that was presented
Speaker 3: to them during the grand jury presentation in order to
Speaker 3: reach a finding of whether or not there was probable cause,
Speaker 3: but that they could assume and they could be assured
Speaker 3: of the fact that the government had even more evidence,
Speaker 3: perhaps better evidence, than was presented to them during the presentation,
Speaker 3: that could be used at trial, and therefore that the
Speaker 3: case was even stronger than the evidence presented to them
Speaker 3: during the grand jury proceeding. If that was done, that
Speaker 3: too would be entirely improper. The grand jury has to
Speaker 3: make a decision as to whether or not there is
Speaker 3: probable cause based solely on the evidence presented to them
Speaker 3: during the grand jury proceeding. It's really no different than
Speaker 3: a trial in which jurors have to make a determination
Speaker 3: as to whether or not the government has met its
Speaker 3: burden of proof beyond a reasonable doubt based solely on
Speaker 3: the evidence that's presented to them during the trial. They
Speaker 3: can't rely on anything outside of the record during the
Speaker 3: trial proceeding. The same holds true for a grand jurors,
Speaker 3: and for a prosecutor to just suggest that there is
Speaker 3: other more powerful evidence that they should consider but has
Speaker 3: not been presented to them would be entirely improper.
Speaker 2: I mean her comments basically come down to a defendant
Speaker 2: has to testify before a grand jury, and trust me,
Speaker 2: grand jurors, we have a lot more evidence that will
Speaker 2: prove his guilt, but we're not showing it to you now.
Speaker 3: Well, I think that's why you saw the opinion written
Speaker 3: by the magistrate judge to be as strongly worded at
Speaker 3: as detailed as it was. It was a twenty four
Speaker 3: page opinion that went not only the issues that mister
Speaker 3: Comey's lawyers had raised in order to try to gain
Speaker 3: access to the grand jury transcripts, but also a litany
Speaker 3: of other issues that he discovered when he reviewed in
Speaker 3: camera those grand jury transcripts, and he raised serious questions
Speaker 3: in his mind, I believe as to whether or not
Speaker 3: there were serious constitutional errors in the presentation, not only
Speaker 3: the Fifth Amendment question, not only the question that there
Speaker 3: was evidence outside of the grand jury's purview that they
Speaker 3: should consider. Even the way the grand jury returned the indictment.
Speaker 3: In this case, the original indictment presented to the Grand
Speaker 3: jurors was a three count indictment. When the Grand jurors
Speaker 3: went back to deliberate, they chose not to return a
Speaker 3: true bill, which means they voted not in favor of
Speaker 3: one of the three counts. And now there's a question,
Speaker 3: based on the transcript of the proceeding, as to whether
Speaker 3: or not an entirely new indictment with only the two
Speaker 3: counts that the Grand jurors voted in favor of, was
Speaker 3: ever presented to them. If that did not happen, if
Speaker 3: the Grand jurors did not deliberate on the exact indictment
Speaker 3: that was ultimately presented to the court, that is another
Speaker 3: issue that could be very problematic.
Speaker 2: I was impressed that the magistrate judge figured out by
Speaker 2: the timing of what happened that he thinks the grand
Speaker 2: jurors did not review the indictment that was finally presented
Speaker 2: in open court. Now, that's exactly.
Speaker 3: Right, the judge wrote. If the prosecutor is mistaken about
Speaker 3: the time she received notification of the grand jury's vote
Speaker 3: on the original indictment, and this procedure did take place,
Speaker 3: then the transcript and audio recording provided to the court
Speaker 3: are incomplete. On the other hand, if this procedure did
Speaker 3: not take place, then the court is in what the
Speaker 3: judge described as uncharted legal territory in that the indictment
Speaker 3: returned in open court was not the same charging document
Speaker 3: presented to and deliberated upon by the grand jury. Either way,
Speaker 3: the judge was not satisfied with the explanation prosecutors gave
Speaker 3: about that process, and that's why the magistrate judge at
Speaker 3: least has decided to open up all of this grand
Speaker 3: jury information to the defense, which is a huge benefit
Speaker 3: to the defense and will likely result in even more
Speaker 3: motions than the original motions filed by mister Comy's defense team.
Speaker 2: Bob I was wondering so the judge said that all
Speaker 2: the grand jury materials that the government filed under seal
Speaker 2: have to be made available to Comy's lawyers, and also
Speaker 2: the audio recording of the grand jury proceedings. Could the
Speaker 2: audio recording reveal things that are not in the transcript.
Speaker 1: Yeah, that's certainly possible.
Speaker 3: I mean, the judge here decided to go full transparency
Speaker 3: and that he is giving everything that was presented to
Speaker 3: him by the government over to the defense, and that
Speaker 3: is something that you rarely see. As I said, this
Speaker 3: is something that is a prosecutor's nightmare. The case should
Speaker 3: not be about the prosecutor's con right out of the gate.
Speaker 3: It should be about the defendant's conduct and about whether
Speaker 3: or not the government can prove that the defendant committed
Speaker 3: a crime beyond a reasonable doubt. The probe into the
Speaker 3: conduct by the government is exactly where you want to
Speaker 3: be if you're on the defense side. But it's the
Speaker 3: worst place you can possibly be as a prosecutor.
Speaker 2: So federal prosecutors within a few hours filed an emergency
Speaker 2: request to the judge in the case we're talking about
Speaker 2: the magistrate judges order, saying that the magistrate judge's new
Speaker 2: order is contrary to law, and also that he may
Speaker 2: have misinterpreted some facts.
Speaker 1: Well.
Speaker 3: I think what's happened here is magistrate judges are appointed
Speaker 3: by the court that they serve in and their decisions
Speaker 3: generally can be appealed to the district court judge handling
Speaker 3: the case. And so the government not surprisingly immediately sought
Speaker 3: to stay, and the district court judge, I think wisely
Speaker 3: granted it so that he can review everything that went
Speaker 3: on and review not only what went on in the
Speaker 3: grand jury, but carefully review the twenty four page decision
Speaker 3: that was issued by the magistrate judge, and he will
Speaker 3: make his own decisions about whether or not this grand
Speaker 3: jury material should be turned over. It's so important and
Speaker 3: it's so unusual that it's not at all surprising to
Speaker 3: me that the district court judge wants to weigh in
Speaker 3: on this before a final decision is made.
Speaker 2: The magistrate judge works in tandem with the district court judge,
Speaker 2: so Judge Macimuff probably knows what the magistrate judge was doing.
Speaker 3: Dor What happens is that magistrate judges are selected by
Speaker 3: the court, as opposed to district court judges, which are
Speaker 3: nominated by the President and only appointed with the advice
Speaker 3: and consent of the Senate. The magistrate judges essentially work
Speaker 3: with specific district court judges, and generally, on the civil side,
Speaker 3: they handle a lot of the discovery matters that lead
Speaker 3: up to trial. On the criminal side, they hear initial
Speaker 3: hearings with regard to bail and issues of that sort.
Speaker 3: But they do work hand in glove with the judges
Speaker 3: that they are assigned to, So typically you will see
Speaker 3: a district court judge agreeing with much of what their
Speaker 3: magistrate judge did. But in this case, I think there's
Speaker 3: no question that Judge Nachmanoff will take a separate look
Speaker 3: at what happened here because it is so unusual, and
Speaker 3: make his own decision about whether the grand jury material
Speaker 3: should be turned over in total as was ordered by
Speaker 3: the magistrate judge.
Speaker 2: So Judge Nachmanoff put Fitzpatrick's order on hold. He gave
Speaker 2: the Justice Department until five pm tomorrow to file its
Speaker 2: full brief and then Comy side has until five pm
Speaker 2: Friday to respond. So now yet another judge is involved
Speaker 2: in this case, and that's the judge considering whether Lindsey
Speaker 2: Halligan was lawfully appointed. Let's once again explain what the
Speaker 2: defense's argument about Halligan's appointment.
Speaker 3: So, in this case, the federal judge is actually a
Speaker 3: judge from South Carolina as opposed to the Eastern District
Speaker 3: of Virginia. Because the question before the court is whether
Speaker 3: or not the US Attorney for the Eastern District of
Speaker 3: Virginia has been properly appointed, and the decision was made
Speaker 3: by the Circuit Court, that'd be best to have a
Speaker 3: judge not in that judicial district making this decision. So
Speaker 3: the judge from South Carolina, to Judge Curry, is looking
Speaker 3: at the convoluted process by which Lindsay Halligan was appointed
Speaker 3: as the interim US Attorney for the Eastern District of Virginia.
Speaker 3: There had been a career prosecutor who was appointed by
Speaker 3: President Trump to serve on an interim basis. That interim
Speaker 3: basis lasts one hundred and twenty days by appointment of
Speaker 3: the President. After that time period, the judges in the
Speaker 3: district can then extend that appointment. And that's exactly what
Speaker 3: happened here with that career prosecutor, Eric Sebert. The Attorney
Speaker 3: General then fired mister Siebert and appoint did a new
Speaker 3: prosecutor Lindsay Halligan for a new one hundred and twenty
Speaker 3: day period, and the question is whether or not the
Speaker 3: Executive Branch can continue with these one hundred and twenty
Speaker 3: day interim appointments sort of add infinitum, or whether they
Speaker 3: can do it only one time and after that time
Speaker 3: it's up to the district court judges to appoint the
Speaker 3: US attorney. The statute is actually not clear on the process.
Speaker 3: It doesn't explicitly say that that one hundred and twenty
Speaker 3: day appointment can happen only once. But the argument by
Speaker 3: the defense here is if the court were to accept
Speaker 3: the government's argument, then the President could really get around
Speaker 3: the advice and consent of the Senate which is required
Speaker 3: for a US attorney, by simply doing a series of
Speaker 3: one hundred and twenty day appointments over and over again,
Speaker 3: and that could not be what Congress intended.
Speaker 2: The Justice Department's response to the argument that Lindsay Halligan
Speaker 2: was not lawfully appointed dismissed any missteps here, saying the
Speaker 2: administration may have made quote at best, a paperwork error,
Speaker 2: and also that afterwards the grand jury presentations have been
Speaker 2: reviewed and ratified by Attorney General Pam Bondy, the Justice
Speaker 2: Department is trying to say, even if we made a mistake,
Speaker 2: Pam Bondy looked at it later and approved it. But
Speaker 2: the judge did not seem too convinced by that.
Speaker 3: These are all very unusual questions and in very unusual
Speaker 3: proceedings that there really is no prior precedent for. So
Speaker 3: it's going to be interesting to see how the courts
Speaker 3: treat not only her appointment, but the efforts by the
Speaker 3: Attorney General. In an effort to prop up Halligan's position,
Speaker 3: Attorney General Bondi designated Halligan as a special attorney for
Speaker 3: the Justice Department, assigned to oversee cases against former FBI
Speaker 3: Director James Comey and New York Attorney General Letitia James.
Speaker 3: So what you're seeing is the Department of Justice kind
Speaker 3: of struggling here to not only prop up the position
Speaker 3: of Lindsay Halligan, but also to try to convince the
Speaker 3: court that any errors that were made in connection with
Speaker 3: obtaining the indictment against James Comy was more of a
Speaker 3: paperwork issue and nothing that should result in dismissal of
Speaker 3: the indictment.
Speaker 2: If she decides that Lindsay Halligan was not qualified and
Speaker 2: there was no ratification so to speak by Attorney General
Speaker 2: Pam Bondi, does the case against Comy then go out
Speaker 2: the window because of the Statute of limitations.
Speaker 3: One of the interesting questions that will arise in the
Speaker 3: event that the court were to determine that Lindsay Halligan's
Speaker 3: appointment was improper is whether or not the government will
Speaker 3: have the ability to reindict the case. The case was
Speaker 3: indicted right at the very end of the five year
Speaker 3: statute limitations. That's why Lindsay Halligan rushed into the grand
Speaker 3: jury on very short notice and made this presentation literally
Speaker 3: days before the five year statute of limitations was set
Speaker 3: to expire. If her appointment is deemed to be improper,
Speaker 3: that would mean that the indictment itself is procedurely flawed
Speaker 3: because somebody who was not properly appointed as a US
Speaker 3: attorney was the only person who presented the case before
Speaker 3: the grand jury. The defense will no doubt argue that
Speaker 3: the government cannot seek to reindict the case because the
Speaker 3: statutal limitations will have since expired. But there is a
Speaker 3: statute that says if a case is dismissed on procedural grounds,
Speaker 3: which may include potentially a situation like this where the
Speaker 3: attorney who presented the case in front of the grand
Speaker 3: jury was not appropriately appointed, that the government has a
Speaker 3: six month grace period to refile that new indictment even
Speaker 3: though the original five year statual limitations has passed. That
Speaker 3: will be something that will be front and center if
Speaker 3: Lindsay Halligan's appointment is ultimately ruled to be improper and
Speaker 3: the government attempts to refile that indictment outside the five
Speaker 3: year statue limitations.
Speaker 2: This case raises so many novel questions. Thanks so much
Speaker 2: for exploring them with US Bob. That's Robert Mintz of
Speaker 2: Macarter and English Today. A panel of federal judges shot
Speaker 2: down Texas's rare mid decade redistricting, delivering the loss to
Speaker 2: President Trump in a two to one vote. The panel
Speaker 2: blocked Texas from using a redrawn US House map, saying
Speaker 2: that substantial evidence shows that Texas racially gerrymander the twenty
Speaker 2: twenty five map. A Trump appointee and a Biden appointee
Speaker 2: we're in the majority, and a Reagan appointee in the minority.
Speaker 2: This closes a path for Republicans to gain five House
Speaker 2: seats in next year's midterm elections unless the Supreme Court
Speaker 2: steps in and reverses the decision, But the timeline is tight.
Speaker 2: Joining me is Ryan Attulo, who covers Texas courts for
Speaker 2: Bloomberg Law. Ryan tell us why the judges blocked the
Speaker 2: new map.
Speaker 4: The panel says that the maps that Texas drew this
Speaker 4: summer racially discriminated against minority groups. It was a decision
Speaker 4: that criticized heavily a letter from the Department of Justice
Speaker 4: that said that the existing maps that Texas had been
Speaker 4: using were racially discriminatory and therefore needed to be redrawn.
Speaker 4: The majority in today's opinion strongly disagreed with that letter
Speaker 4: and shot it down, and they said, Texas, for the
Speaker 4: upcoming congressional elections in twenty twenty six, you need to
Speaker 4: use the old maps, not the ones you just passed.
Speaker 2: Explain what happened at the two week trial.
Speaker 4: Last month in El Paso, Texas. There was a trial
Speaker 4: challenging the maps that Texas used on racial gerrymandering grounds.
Speaker 4: Texas was in a tough spot because initially they said
Speaker 4: that we need to rea draw these four racial reasons
Speaker 4: based on that Department of Justice letter. Well, that's tougher
Speaker 4: to defend than just saying. What they ended up saying
Speaker 4: is redrew the strictly for partisan gain, which is a
Speaker 4: very unapologetic position. But you can say, look, we wanted
Speaker 4: five more seats for the Republican Party so that we
Speaker 4: can keep Congress after the midterms. That's what they said,
Speaker 4: and the majority of judges on the panels disagreed. They
Speaker 4: said no, it was redrawn for racial reasons.
Speaker 2: And which districts were redrawn.
Speaker 4: Largely urban districts Dallas, Austin, when near Houston. There were
Speaker 4: five total that the Republican lawmakers in Texas and President
Speaker 4: Trump identified as being able to flip from solidly blue
Speaker 4: to solidly read. And you saw a scramble there, Democratic
Speaker 4: lawmakers getting Congressional lawmakers getting drawn out of their seats,
Speaker 4: and what are we going to do. I will run
Speaker 4: for reelection if the maps are struck down, or I
Speaker 4: will retire if they're not. So there's been a lot
Speaker 4: of relief from House Democrats today, not knowing whether they
Speaker 4: were going to be able to run for their House seat.
Speaker 4: Now they will be.
Speaker 2: I assume that Texas is going to appeal this to
Speaker 2: the Supreme Court since it's a redistricting matter.
Speaker 4: I would guess they're working on that as we speak June.
Speaker 4: They're going to go straight to the Supreme Court. They're
Speaker 4: not not going to the intermediary Fifth Circuit. I think
Speaker 4: we'll know a little more once they file that. But
Speaker 4: Attorney General Ken Paxton and Governor Greg Abbott, who used
Speaker 4: to be the Attorney general in Texas before he became governor,
Speaker 4: both came out with statements saying, we strongly disagree with
Speaker 4: this decision and we'll go in straight to the Supreme Court.
Speaker 4: There is a time crunch here because the deadline for
Speaker 4: candidates to file for the congressional primaries is coming up
Speaker 4: a couple weeks December eighth. I believe it is, so
Speaker 4: the Supreme Court may have to act quick or maybe
Speaker 4: they extend that deadline. Anyone's guess at this point, but
Speaker 4: this is something that will probably move pretty quickly.
Speaker 2: Very quickly. I'm sure, Thanks so much. Ryan, that's Bloomberg Laws,
Speaker 2: Ryan Atulo, Meta TikTok, Google and YouTube are challenging a
Speaker 2: California law that forbids social media platforms from allowing miners
Speaker 2: to access personalized feeds without parental consent. They say it
Speaker 2: violates their First Amendment rights. Joining me is Colin Walkee,
Speaker 2: a cybersecurity and data privacy partner at haul Estel. Colin
Speaker 2: tell us about this law. California is protecting Our Kids
Speaker 2: from Social Media Addiction Act.
Speaker 1: Yeah.
Speaker 5: So this is a new law that requires several things,
Speaker 5: one of which is, for example, that individuals provide proof
Speaker 5: that they are over the age of eighteen or a
Speaker 5: parental consent if you're a minor before you get curated algorithms.
Speaker 5: It also requires tech companies to do things like set
Speaker 5: default settings on the amount of time that children see
Speaker 5: curated algorithms, things along those lines.
Speaker 2: Will you explain exactly what a curated algorithm is?
Speaker 5: Yes, So if I go on YouTube and I don't
Speaker 5: log in as Calin Walkie, they generally speaking don't know
Speaker 5: who I am, and so I see a feed, but
Speaker 5: the feed isn't tailored to me or my desires. But
Speaker 5: the moment that I plug in that I'm Callin Walkie
Speaker 5: and here's my Google account access it now knows hey
Speaker 5: Callin likes videos of dogs and ponies, and so that's
Speaker 5: what it shows me. And so these curated algorithms in
Speaker 5: theory get individuals more addictive than they otherwise would because
Speaker 5: they're seeing more of what they want to see.
Speaker 2: What are the social media platforms arguing here?
Speaker 5: So this is actually a lawsuit that is a subsequent
Speaker 5: lawsuit from an earlier one that was brought by a
Speaker 5: trade association called net Choice and YouTube and Meta and
Speaker 5: Google or all members of net Choice, And in that case,
Speaker 5: the Ninth Circuit said, yeah, this law might violate the
Speaker 5: First Amendment because even children have a right to freedom
Speaker 5: of speech and freedom of expression, and so this very
Speaker 5: well may violate the First Amendment. But you, as a
Speaker 5: trade association, do not have standing to make these arguments.
Speaker 1: And so that decision was issued.
Speaker 5: Last month, and now we have Google and Meta coming
Speaker 5: in and going, okay, here we are.
Speaker 1: We have standing.
Speaker 5: Now we want you to know that this violates the
Speaker 5: First Amendment because even children have freedom of speech and
Speaker 5: we have the right to curate these algorithms for children
Speaker 5: as freedom of expression.
Speaker 2: Is there any room in the First Amendment to prevent
Speaker 2: children from hearing things that will be harmful to them?
Speaker 1: There certainly is right.
Speaker 5: So we have regulations that say you can't view pornographic
Speaker 5: material until you're eighteen or twenty one years of age,
Speaker 5: and so there certainly is precedent for that. The problem
Speaker 5: comes though, with regard to how broad is this law.
Speaker 5: This law would cover not just pornographic images that YouTube
Speaker 5: may show, but it would also cover content that is
Speaker 5: perfectly fine for teenagers to view, and so therefore it
Speaker 5: is an overly broad law, according to Google and Meta
Speaker 5: and YouTube.
Speaker 2: The State ags, pointing to its preliminary win in defense
Speaker 2: of the law, it tells about the Ninth Circuits holding.
Speaker 5: Yeah, the Ninth Circuit essentially said that you, as a
Speaker 5: trade association, have not demonstrated a record where when you
Speaker 5: apply this law to a particular algorithm it results in
Speaker 5: something being overly broad. So, for example, they didn't show
Speaker 5: that Google's algorithm apply to both pornographic material and material
Speaker 5: that's acceptable to teenagers.
Speaker 1: Why because that wasn't the argument they were making.
Speaker 5: And so the Ninth Circuit said, Hey, if you have
Speaker 5: a record that can actually show to us that Google's
Speaker 5: algorithm covers both.
Speaker 1: Of these things, then maybe you have a point.
Speaker 5: And so as a result, the trade association loss basically
Speaker 5: on a procedural issue, not so much on a substantive issue.
Speaker 2: Is this a tough argument, then to make to protect
Speaker 2: the laws. Who has the tougher argument, the state AG
Speaker 2: or the internet companies?
Speaker 5: I apparently just think it depends on who you ask.
Speaker 5: The AG is going to say that the tech companies
Speaker 5: do all day long. But unfortunately, I think that the
Speaker 5: tech companies, because of the way we have interpreted the
Speaker 5: First Amendment and the scope and the breadth of the
Speaker 5: information that that covers, I unfortunately think that they will
Speaker 5: ultimately prevail in this matter. It's hard for me to
Speaker 5: think of a single age verification law that has been
Speaker 5: upheld of recent memory. But the other side of it
Speaker 5: too is you know, the thing is is that these
Speaker 5: things are addictive.
Speaker 1: Not just because of the algorithms.
Speaker 5: Showing you curated materials, the phones themselves, the pixels, the
Speaker 5: brightness of the screen means the automatic response is irrespective
Speaker 5: of the fact that the responses you don't want. That's
Speaker 5: what makes these things addictive. They're much more like casinos, right,
Speaker 5: So it's not even necessarily that we need to address
Speaker 5: the algorithms.
Speaker 1: So there's so many other things.
Speaker 5: That we could address that would not run a foul
Speaker 5: of the First Amendment that could be taken advantage of.
Speaker 2: Is there any way for California to pass a different
Speaker 2: law that would somehow escape these First Amendment objections.
Speaker 5: That's the thing is that it becomes very difficult until
Speaker 5: the court is willing to interpret algorithms as something more
Speaker 5: akin to pornography, as something more akin to showing an
Speaker 5: actual harm to children. And I think that's where the
Speaker 5: ag and the law stems from. It stems from the
Speaker 5: fact that we know these curated algorithms and algorithms in general,
Speaker 5: do not help children in their mental health, so let's
Speaker 5: do something about it. And unfortunately, the courts have not
Speaker 5: treated this in the same way they have other materials
Speaker 5: like pornography, And once it gets to that point in time,
Speaker 5: you're talking about something totally different, and I think courts
Speaker 5: may change their mind, But right now, I don't see
Speaker 5: a good way for us to win on a free
Speaker 5: speech ground in a regulation like this.
Speaker 2: In light of all the horrific stories we've heard about
Speaker 2: kids being addicted to social media, I'm a little surprised
Speaker 2: that these companies are taking this tactic because it makes
Speaker 2: them look like they're contributing to the problem instead of
Speaker 2: helping to solve the problem.
Speaker 5: Well, they're actually talking on both sides of the mouth
Speaker 5: at once. So on the one hand, what they are
Speaker 5: actually saying is is we actually curate these feeds in
Speaker 5: the first place for kids to make sure that they're safe.
Speaker 5: We already limit the amount of time that.
Speaker 1: We show them curated feeds. That we're already being proactive.
Speaker 1: That's the first thing they say.
Speaker 5: But on the flip side of that point, they're also saying,
Speaker 5: let us continue to show these kids this because that's
Speaker 5: the best way to get their attention. It's the best
Speaker 5: way for us to make money. You know, you think
Speaker 5: about it, Think about the nineteen eighties and the nineteen
Speaker 5: nineties when used to kick kids out of R rated
Speaker 5: movies because they weren't old.
Speaker 1: Enough to do it right.
Speaker 5: I'm confident those movie theaters would love to have had
Speaker 5: those kids and their dollars in their pockets, but they
Speaker 5: made a rule in staid we're not going to do that.
Speaker 5: These tech companies have not made that rule. They don't care.
Speaker 5: They want the profits.
Speaker 2: And Colin, how does this work? Because my daughter is
Speaker 2: long grown up? How does it work? Do parents have
Speaker 2: to click on something to give their consent?
Speaker 5: So that's part of the complaint is is that what
Speaker 5: would have to happen is a parent would have to
Speaker 5: upload an ID and disclose personal information about that parent
Speaker 5: that they shouldn't have to do in order to access
Speaker 5: freedom of spreach content right. And so for example, that's
Speaker 5: part of the problem with age verification laws for pornography.
Speaker 1: If I am twenty.
Speaker 5: Five years of age, why should I have to prove
Speaker 5: to you that I am this age in order to
Speaker 5: engage in that conduct online? And so that's where the
Speaker 5: objection comes in is that parents, in order to use
Speaker 5: this lawfully may have to disclose information they shouldn't have
Speaker 5: to disclose absent this law.
Speaker 2: What's the status of the lawsuits filed by parents against
Speaker 2: social media companies?
Speaker 5: Yeah, so the most recent lawfoods, specifically with regard to AI,
Speaker 5: those are still in existence to my knowledge, I'm not
Speaker 5: aware of any of that have been dismissed yet.
Speaker 1: I am not aware of any penning ones.
Speaker 5: I mean, there are massed court litigation I think going
Speaker 5: on against some social media companies, but I'm not aware
Speaker 5: of the current status of those. And that's just it
Speaker 5: is that the courts, if they're not going to learn
Speaker 5: how to recategorize addictive algorithms to address it. Under the
Speaker 5: first Amendment. Then they need to rethink how we can
Speaker 5: litigate claims when companies negligently create these algorithms that hurt
Speaker 5: ourselves and our children.
Speaker 2: I don't know what recourse parents have besides the courts.
Speaker 2: Thanks so much, Colin. That's Colin Walkee, cybersecurity and data
Speaker 2: privacy partner at hall Estel. And that's it for this
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