1 00:00:02,759 --> 00:00:07,480 Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio. 2 00:00:08,840 --> 00:00:13,480 Speaker 2: Former FBI Director James Comy was defiant in the face 3 00:00:13,520 --> 00:00:17,759 Speaker 2: of a federal indictment on two felony charges of making 4 00:00:17,840 --> 00:00:22,239 Speaker 2: false statements and obstruction. My heart is broken for the 5 00:00:22,280 --> 00:00:25,639 Speaker 2: Department of Justice, but I have great confidence in the 6 00:00:25,640 --> 00:00:26,920 Speaker 2: federal judicial system. 7 00:00:27,480 --> 00:00:29,920 Speaker 3: I'm innocent, so let's have a trial. 8 00:00:30,520 --> 00:00:36,200 Speaker 2: The unprecedented indictment came just five days after President Donald Trump, 9 00:00:36,560 --> 00:00:40,280 Speaker 2: in a post on truth Social demanded that Attorney General 10 00:00:40,360 --> 00:00:45,400 Speaker 2: Pam Bondi bring charges against his perceived enemies, naming Comy, 11 00:00:45,640 --> 00:00:50,640 Speaker 2: New York Attorney General Letitia James, and California Senator Adam Schiff. 12 00:00:51,000 --> 00:00:54,960 Speaker 2: The charges center on testimony Comy gave in response to 13 00:00:55,120 --> 00:00:59,600 Speaker 2: questions from Republican Senator Ted Cruz during a twenty twenty 14 00:00:59,640 --> 00:01:04,399 Speaker 2: hearing over the FBI's investigation into Russian interference in the 15 00:01:04,440 --> 00:01:05,600 Speaker 2: twenty sixteen election. 16 00:01:06,120 --> 00:01:09,520 Speaker 3: What mister McKay is saying and what you testify to 17 00:01:09,560 --> 00:01:11,440 Speaker 3: this committee cannot both be true. 18 00:01:11,520 --> 00:01:14,880 Speaker 1: One or the other is false. Who's telling the truth? 19 00:01:16,080 --> 00:01:18,520 Speaker 3: I can only speak to my testimony. I stand by 20 00:01:18,560 --> 00:01:21,160 Speaker 3: what the testimony you summarized that I gave in May 21 00:01:21,160 --> 00:01:22,280 Speaker 3: of twenty seventeen. 22 00:01:22,800 --> 00:01:27,560 Speaker 2: The indictment follows chaos inside the Justice Department after career 23 00:01:27,640 --> 00:01:32,399 Speaker 2: prosecutors advised against bringing the charges, and the acting US 24 00:01:32,560 --> 00:01:36,959 Speaker 2: Attorney in the Eastern District of Virginia who resigned was 25 00:01:37,040 --> 00:01:41,480 Speaker 2: replaced by one of Trump's personal attorneys, an insurance lawyer 26 00:01:41,640 --> 00:01:46,760 Speaker 2: with no prosecutorial experience. Joining me is former federal prosecutor 27 00:01:46,840 --> 00:01:51,000 Speaker 2: Robert Mintz, a partner Macarter and English Bob. What is 28 00:01:51,000 --> 00:01:54,560 Speaker 2: the significance of this indictment, Well. 29 00:01:54,440 --> 00:01:58,160 Speaker 3: It's enormously significant in the sense that it's the first 30 00:01:58,200 --> 00:02:02,560 Speaker 3: time of former FBI director has ever been indicted. And 31 00:02:02,640 --> 00:02:07,280 Speaker 3: it's also very unusual because the subject of this indictment, 32 00:02:07,440 --> 00:02:12,600 Speaker 3: James Comey, has been an antagonist to President Trump for 33 00:02:12,680 --> 00:02:16,119 Speaker 3: so many years now, and there was pressure, frankly by 34 00:02:16,200 --> 00:02:19,239 Speaker 3: the White House on the Department of Justice to take 35 00:02:19,280 --> 00:02:21,960 Speaker 3: a look at this case and to bring charges against 36 00:02:21,960 --> 00:02:27,720 Speaker 3: the former FBI director. There are long standing, unwritten norms 37 00:02:27,760 --> 00:02:31,959 Speaker 3: that have separated the Department of Justice from the White House, 38 00:02:32,000 --> 00:02:36,520 Speaker 3: and all of the presidential predecessors to President Trump have 39 00:02:36,760 --> 00:02:40,440 Speaker 3: at least to some degree, sought to distance themselves from 40 00:02:40,480 --> 00:02:45,120 Speaker 3: the Justice Department's prosecutorial decisions. Certainly, at least in public. 41 00:02:45,360 --> 00:02:48,519 Speaker 3: They have declined to weigh in on pending cases, for example, 42 00:02:48,960 --> 00:02:52,680 Speaker 3: especially those types of cases that touched on politics. And 43 00:02:52,720 --> 00:02:56,880 Speaker 3: they have at least spoken publicly about the deference that 44 00:02:56,919 --> 00:03:00,639 Speaker 3: the White House gives to the Department of Justice, tradition 45 00:03:00,840 --> 00:03:05,560 Speaker 3: of independence that allows prosecutors to make decisions about whether 46 00:03:05,639 --> 00:03:09,280 Speaker 3: or not to bring cases based solely upon the evidence 47 00:03:09,639 --> 00:03:13,280 Speaker 3: and the law, without any outside influence or even the 48 00:03:13,320 --> 00:03:17,840 Speaker 3: appearance of any political pressure behind the decision whether to 49 00:03:17,880 --> 00:03:19,040 Speaker 3: bring a criminal case. 50 00:03:19,560 --> 00:03:24,799 Speaker 2: The indictment is less than two pages, so very minimal information. 51 00:03:25,480 --> 00:03:27,320 Speaker 2: What do we know about the charges? 52 00:03:27,960 --> 00:03:32,320 Speaker 3: The indictment stems from James Coomy's sworn appearance during a 53 00:03:32,480 --> 00:03:37,800 Speaker 3: Judiciary committee hearing on the FBI's handling of investigations into 54 00:03:37,920 --> 00:03:42,200 Speaker 3: Russian interference in the twenty sixteen election. What prosecutors are 55 00:03:42,240 --> 00:03:46,680 Speaker 3: alleging in this indictment is that mister Komy knowingly misled 56 00:03:46,800 --> 00:03:50,800 Speaker 3: senators on two critical points. First, the government claims that 57 00:03:50,880 --> 00:03:55,200 Speaker 3: Comy falsely denied authorizing anyone at the FBI to act 58 00:03:55,200 --> 00:03:59,040 Speaker 3: as an anonymous source to the media regarding the investigation. 59 00:04:00,160 --> 00:04:03,320 Speaker 3: To the charging documents, he did it willfully and knowingly 60 00:04:03,480 --> 00:04:07,600 Speaker 3: and made a materially false, fictitious, and fraudulent statement by 61 00:04:07,600 --> 00:04:11,040 Speaker 3: falsely stating to a United States Senator that he had 62 00:04:11,040 --> 00:04:14,200 Speaker 3: not authorized someone else at the FBI to be an 63 00:04:14,200 --> 00:04:18,800 Speaker 3: anonymous source in news reports regarding an FBI investigation. The 64 00:04:18,880 --> 00:04:23,240 Speaker 3: second charge allegacy Comy obstructed Congress by making false and 65 00:04:23,279 --> 00:04:28,039 Speaker 3: misleading statements basically aimed at impeding the committee's inquiry into 66 00:04:28,040 --> 00:04:32,039 Speaker 3: the FBI's actions regarding the twenty sixteen election. The third 67 00:04:32,120 --> 00:04:35,560 Speaker 3: proposed count, which was an obstruction of a congressional proceeding, 68 00:04:36,240 --> 00:04:40,240 Speaker 3: was rejected, apparently by the Grand Injury. Court. Records show 69 00:04:40,320 --> 00:04:44,920 Speaker 3: that grandeurors did not find sufficient evidence to support that charge, 70 00:04:45,120 --> 00:04:47,560 Speaker 3: and that was dropped from the indictment, which was then 71 00:04:47,640 --> 00:04:49,600 Speaker 3: revised and presented to the judge. 72 00:04:49,839 --> 00:04:54,040 Speaker 2: Though false statements may sound like a pretty straightforward charge 73 00:04:54,080 --> 00:04:57,880 Speaker 2: to prove, actually proving the crime of false statements is 74 00:04:58,000 --> 00:05:03,080 Speaker 2: anything but easy. Ask Special counsel John Durham. Two people 75 00:05:03,200 --> 00:05:06,880 Speaker 2: charged by him with making false statements were acquitted at trial. 76 00:05:07,200 --> 00:05:09,280 Speaker 2: So what does a prosecutor have to prove? 77 00:05:09,360 --> 00:05:09,600 Speaker 1: Here? 78 00:05:10,320 --> 00:05:13,880 Speaker 3: To prove the case of making false statements, prosecutors will 79 00:05:13,920 --> 00:05:17,279 Speaker 3: have to convince the jury that James Comy not only 80 00:05:17,320 --> 00:05:21,000 Speaker 3: made false statements to Congress, but that he did so knowingly, 81 00:05:21,640 --> 00:05:24,920 Speaker 3: and that any false statements that he made were material 82 00:05:25,240 --> 00:05:28,560 Speaker 3: to the focus of the Senate proceedings. So essentially, what 83 00:05:28,760 --> 00:05:31,680 Speaker 3: has to happen in these types of prosecutions and why 84 00:05:31,720 --> 00:05:34,760 Speaker 3: they are so rare, is that prosecutors have to get 85 00:05:34,760 --> 00:05:37,720 Speaker 3: inside the head of the person who is making the statement. 86 00:05:37,760 --> 00:05:39,640 Speaker 1: They have to get inside the mind. 87 00:05:39,400 --> 00:05:42,320 Speaker 3: Of the defendant and prove that what the defendant said 88 00:05:42,400 --> 00:05:44,960 Speaker 3: was not only false, but it was knowingly false, that 89 00:05:45,040 --> 00:05:47,440 Speaker 3: they knew at the time they were making it it 90 00:05:47,560 --> 00:05:50,000 Speaker 3: was an untruth, and then they also have to show 91 00:05:50,200 --> 00:05:53,480 Speaker 3: that it was a material untruth. That's why we see 92 00:05:53,720 --> 00:05:56,720 Speaker 3: very few of these types of cases brought, and very 93 00:05:56,720 --> 00:05:58,320 Speaker 3: few of the cases are successful. 94 00:05:59,120 --> 00:06:02,239 Speaker 2: Might be even offer in this case because it's based 95 00:06:02,360 --> 00:06:08,080 Speaker 2: on Senator Cruz summarizing prior testimony. Add to that, a 96 00:06:08,200 --> 00:06:13,760 Speaker 2: twenty eighteen Inspector General's report found that Comy's deputy Andy 97 00:06:13,839 --> 00:06:19,760 Speaker 2: McCabe made multiple false or misleading statements and credited Comy's 98 00:06:19,839 --> 00:06:22,520 Speaker 2: version of the conversation over McCabe's. 99 00:06:22,839 --> 00:06:26,800 Speaker 3: The charges heres focused specifically on questions asked by Senator 100 00:06:26,839 --> 00:06:30,600 Speaker 3: Ted Cruz about testimony that Comy gave in twenty seventeen 101 00:06:31,040 --> 00:06:35,200 Speaker 3: asserting that he did not authorize leaking information regarding the 102 00:06:35,279 --> 00:06:40,359 Speaker 3: FBI's investigations into then President Donald Trump or former Secretary 103 00:06:40,400 --> 00:06:45,920 Speaker 3: of State Hillary Clinton. Comy testified unequivocally to Senator Cruz. 104 00:06:46,000 --> 00:06:51,200 Speaker 3: I stand by that testimony. Interestingly, Comy's deputy, Andrew McCabe, 105 00:06:51,520 --> 00:06:55,240 Speaker 3: has said that Comy authorized him to leak the information 106 00:06:55,320 --> 00:06:58,839 Speaker 3: to the press. According to a twenty eighteen Justice Department 107 00:06:58,920 --> 00:07:03,000 Speaker 3: Inspector General report, Now, when the Inspector General looked into 108 00:07:03,000 --> 00:07:06,400 Speaker 3: this issue, and he looked at the testimony of James 109 00:07:06,440 --> 00:07:10,280 Speaker 3: Comy and compared that to Andrew McCabe, they are directly 110 00:07:10,280 --> 00:07:13,240 Speaker 3: in conflict with one another. And so the Inspector General 111 00:07:13,440 --> 00:07:16,120 Speaker 3: had to look at the credibility of each of those 112 00:07:16,160 --> 00:07:18,200 Speaker 3: speakers and look at the rest of the information that 113 00:07:18,320 --> 00:07:21,320 Speaker 3: was available to make a determination as to who it 114 00:07:21,440 --> 00:07:24,800 Speaker 3: believed was telling the truth. In that case, the Inspector 115 00:07:24,920 --> 00:07:28,800 Speaker 3: General actually found that mister Comy's testimony. 116 00:07:28,520 --> 00:07:29,440 Speaker 1: Was more incredible. 117 00:07:29,640 --> 00:07:32,760 Speaker 3: They found the Cave's testimony not credible. In fact, it 118 00:07:32,920 --> 00:07:36,840 Speaker 3: concluded in that report the overwhelming weight of evidence supported 119 00:07:36,880 --> 00:07:40,720 Speaker 3: Comy's version of the conversation and not McCabe. So at 120 00:07:40,760 --> 00:07:43,160 Speaker 3: the end of the day, here you've got a he said, 121 00:07:43,240 --> 00:07:48,080 Speaker 3: he said situation where two people are giving contradictory evidence 122 00:07:48,240 --> 00:07:50,880 Speaker 3: as to whether or not a conversation took place. And 123 00:07:50,960 --> 00:07:54,440 Speaker 3: those cases are very difficult to prove, because, again, the 124 00:07:54,520 --> 00:07:57,360 Speaker 3: standard of proof in any criminal case is beyond a 125 00:07:57,440 --> 00:08:01,040 Speaker 3: reasonable doubt. And when you've got two witnesses give testimony 126 00:08:01,080 --> 00:08:05,560 Speaker 3: that's directly contradictory to one another, it's difficult to prove 127 00:08:05,680 --> 00:08:08,960 Speaker 3: that one of them is absolutely true and the other 128 00:08:09,120 --> 00:08:12,080 Speaker 3: is absolutely false. And in this case, it is compounded 129 00:08:12,120 --> 00:08:14,440 Speaker 3: by the fact that the Inspector General looked at this 130 00:08:14,600 --> 00:08:18,560 Speaker 3: very same issue and the inspector General's report ultimately concluded 131 00:08:18,760 --> 00:08:21,600 Speaker 3: that it was Komy who was more credible and the 132 00:08:21,720 --> 00:08:24,760 Speaker 3: Cabe had not been truthful to the Inspector General during 133 00:08:24,760 --> 00:08:25,560 Speaker 3: that investigation. 134 00:08:25,960 --> 00:08:30,520 Speaker 2: Komy could raise a defense of vindictive or selective prosecution. 135 00:08:31,360 --> 00:08:33,640 Speaker 2: I know it's a high bar, but here you have 136 00:08:34,240 --> 00:08:38,080 Speaker 2: the President of the United States in writing demanding that 137 00:08:38,120 --> 00:08:42,120 Speaker 2: the Attorney General indict Komy, and a few days later, 138 00:08:42,200 --> 00:08:46,840 Speaker 2: after turmoil in the US Attorney's office, he's indicted, and 139 00:08:46,920 --> 00:08:51,679 Speaker 2: President Trump again in writing celebrates that it's. 140 00:08:51,600 --> 00:08:56,199 Speaker 3: Really difficult to say exactly how much of this collateral 141 00:08:56,360 --> 00:09:00,000 Speaker 3: evidence will be admitted and considered by the judge, because 142 00:09:00,000 --> 00:09:03,160 Speaker 3: because none of this has really ever happened before, there 143 00:09:03,280 --> 00:09:06,439 Speaker 3: was clearly pressure brought to bear on the Attorney General 144 00:09:06,800 --> 00:09:11,960 Speaker 3: to bring this case. Ultimately, the acting US Attorney in 145 00:09:12,000 --> 00:09:14,800 Speaker 3: the Eastern District of Virginia presented this case to a 146 00:09:14,800 --> 00:09:18,320 Speaker 3: grand jury, and a majority of the grand jurors voted 147 00:09:18,360 --> 00:09:22,840 Speaker 3: in favor of two of the three counts. Probably that 148 00:09:22,880 --> 00:09:25,720 Speaker 3: will then mean that this case will proceed to trial. 149 00:09:26,040 --> 00:09:29,160 Speaker 3: Although I think we can expect the defense to raise 150 00:09:29,280 --> 00:09:32,760 Speaker 3: the fact that there was this outside pressure, and whether 151 00:09:32,840 --> 00:09:35,760 Speaker 3: or not a judge will consider that, I think we'll 152 00:09:35,760 --> 00:09:38,600 Speaker 3: have to wait and see. The problem with that defense 153 00:09:38,760 --> 00:09:42,640 Speaker 3: is that it would essentially turn the US Attorney and 154 00:09:42,720 --> 00:09:46,480 Speaker 3: others inside the Justice Department into witnesses as to what 155 00:09:46,760 --> 00:09:50,560 Speaker 3: actually motivated their desire to present this case. So, while 156 00:09:50,559 --> 00:09:53,880 Speaker 3: I think the optics of that are favorable to the defense, 157 00:09:54,240 --> 00:09:56,760 Speaker 3: I'm not sure that a judge will eventually want to 158 00:09:56,800 --> 00:10:00,160 Speaker 3: go down that road. The judge will more likely focus 159 00:10:00,160 --> 00:10:04,280 Speaker 3: on the evidence itself and listen to the various defenses 160 00:10:04,520 --> 00:10:07,120 Speaker 3: that James Comey's lawyers bring at trial. 161 00:10:07,640 --> 00:10:09,720 Speaker 2: So you think this will get to trial, it won't 162 00:10:09,720 --> 00:10:11,080 Speaker 2: be dismissed beforehand. 163 00:10:11,480 --> 00:10:13,640 Speaker 3: Well, again, it's hard to say, but I can tell 164 00:10:13,640 --> 00:10:17,640 Speaker 3: you that it's exceedingly rare for a federal criminal indictment 165 00:10:17,679 --> 00:10:20,880 Speaker 3: to be dismissed on a motion to dismiss basis. In 166 00:10:20,920 --> 00:10:23,440 Speaker 3: other words, what a judge has to do is look 167 00:10:23,480 --> 00:10:27,520 Speaker 3: at the face of the indictment and decides that, based 168 00:10:27,600 --> 00:10:31,440 Speaker 3: upon the allegations in the indictment and based upon the 169 00:10:31,480 --> 00:10:33,480 Speaker 3: evidence that the government has. 170 00:10:33,200 --> 00:10:35,800 Speaker 1: No reasonable jury could convict. 171 00:10:35,840 --> 00:10:39,000 Speaker 3: Now, it's possible in this case that a judge might 172 00:10:39,080 --> 00:10:42,320 Speaker 3: do that, but again, the facts here are so unusual 173 00:10:42,679 --> 00:10:45,240 Speaker 3: that I think it's very difficult to predict what a 174 00:10:45,360 --> 00:10:48,559 Speaker 3: judge is going to do. So the defense actually has 175 00:10:48,720 --> 00:10:53,000 Speaker 3: multiple opportunities to try to derail this case. They'll certainly 176 00:10:53,120 --> 00:10:56,560 Speaker 3: move to dismiss the indictment on the basis of some 177 00:10:56,679 --> 00:11:01,120 Speaker 3: kind of improper pressure or impropriety for the grand jury. 178 00:11:01,840 --> 00:11:04,480 Speaker 3: They'll try to allege that there's not sufficient evidence to 179 00:11:04,559 --> 00:11:05,800 Speaker 3: let this case even. 180 00:11:05,600 --> 00:11:06,640 Speaker 1: Proceed to trial. 181 00:11:07,360 --> 00:11:10,040 Speaker 3: If it gets past that stage, which it likely will, 182 00:11:10,440 --> 00:11:13,679 Speaker 3: they then have another opportunity to move to dismiss at 183 00:11:13,720 --> 00:11:17,880 Speaker 3: the close of the government's case, arguing that no reasonable 184 00:11:17,960 --> 00:11:21,319 Speaker 3: jury could convict based upon the evidence that was presented. 185 00:11:21,440 --> 00:11:23,840 Speaker 3: And then the defense can argue again at the close 186 00:11:23,880 --> 00:11:26,280 Speaker 3: of the trial that it should not even go to 187 00:11:26,320 --> 00:11:29,720 Speaker 3: the jury because no reasonable jury could convict based upon 188 00:11:29,760 --> 00:11:32,920 Speaker 3: the evidence. And then there's one last opportunity for the defense. 189 00:11:33,120 --> 00:11:35,240 Speaker 3: Even after the case goes to the jury. In the 190 00:11:35,280 --> 00:11:38,640 Speaker 3: event that the jury convicts, they can argue to the 191 00:11:38,760 --> 00:11:41,800 Speaker 3: judge that, despite the fact that the jury returned to 192 00:11:41,840 --> 00:11:46,080 Speaker 3: conviction here, that the evidence was legally insufficient, and the 193 00:11:46,240 --> 00:11:50,160 Speaker 3: judge actually has the opportunity to overturn the jury's decision. 194 00:11:50,800 --> 00:11:54,160 Speaker 2: And what about the effect on the Justice Department of 195 00:11:54,240 --> 00:11:58,000 Speaker 2: bringing a high profile case like this under pressure and 196 00:11:58,080 --> 00:12:01,000 Speaker 2: despite the reservations of career prosecutors. 197 00:12:01,640 --> 00:12:05,079 Speaker 3: Well, I can tell you that political prosecutions and US 198 00:12:05,120 --> 00:12:10,200 Speaker 3: Attorney's offices around the country are run by separate groups 199 00:12:10,240 --> 00:12:15,080 Speaker 3: within the office prosecutors who specialize in political corruption, and 200 00:12:15,200 --> 00:12:19,320 Speaker 3: when those cases are brought against elected officials or former 201 00:12:19,360 --> 00:12:23,600 Speaker 3: elected officials, they receive the highest degree of scrutiny. In 202 00:12:23,640 --> 00:12:26,920 Speaker 3: other words, the weight of the evidence and the propriety 203 00:12:27,040 --> 00:12:30,120 Speaker 3: the charges are reviewed. Not only within the US Attorney's office, 204 00:12:30,160 --> 00:12:34,400 Speaker 3: but also by officials in main Justice. It gets a 205 00:12:34,440 --> 00:12:36,880 Speaker 3: lot of eyes looking at it, a lot of career 206 00:12:37,000 --> 00:12:40,600 Speaker 3: prosecutors looking at it and weighing in on whether or 207 00:12:40,679 --> 00:12:44,400 Speaker 3: not to proceed. And that's done because prosecutors know that 208 00:12:44,559 --> 00:12:49,040 Speaker 3: these types of cases elected government officials, high level appointed 209 00:12:49,080 --> 00:12:53,800 Speaker 3: government officials, these are high stakes, high profile cases, and 210 00:12:53,920 --> 00:12:56,719 Speaker 3: if they're going to be brought, prosecutors want to make 211 00:12:56,760 --> 00:13:00,199 Speaker 3: sure that they're going to win because every time the 212 00:13:00,320 --> 00:13:03,839 Speaker 3: case is brought against a high level elected official or 213 00:13:03,920 --> 00:13:07,920 Speaker 3: former elected official, or former high ranking government official, if 214 00:13:07,960 --> 00:13:11,560 Speaker 3: the prosecution does not come back with a conviction, it 215 00:13:11,640 --> 00:13:15,480 Speaker 3: damages the reputation of the department and can have repercussions 216 00:13:15,600 --> 00:13:20,000 Speaker 3: about future cases. Because bear in mind that all these decisions, 217 00:13:20,080 --> 00:13:22,440 Speaker 3: at the end of the day in any criminal case 218 00:13:22,800 --> 00:13:27,480 Speaker 3: are made by jurors. These are everyday people, and if 219 00:13:27,480 --> 00:13:31,680 Speaker 3: there is a general perception out there that the Department 220 00:13:31,679 --> 00:13:35,960 Speaker 3: of Justice is overreaching and bringing cases that it shouldn't 221 00:13:35,960 --> 00:13:40,840 Speaker 3: be reaching, jurors may become more skeptical of these cases 222 00:13:40,880 --> 00:13:45,040 Speaker 3: in the future. Historically, when an assistant US attorney stands 223 00:13:45,040 --> 00:13:48,040 Speaker 3: before a jury, they bring a certain amount of credibility 224 00:13:48,080 --> 00:13:52,000 Speaker 3: with them. They bring years and years of a reputation 225 00:13:52,120 --> 00:13:55,840 Speaker 3: of the Department of Justice of bringing cases that are 226 00:13:55,880 --> 00:13:58,480 Speaker 3: supported not only by the law but by the facts. 227 00:13:58,760 --> 00:14:01,240 Speaker 3: And so there is quite frankly, a certain amount of 228 00:14:01,280 --> 00:14:04,840 Speaker 3: deference that jurors often give to the government and that 229 00:14:04,960 --> 00:14:08,000 Speaker 3: judges often give to the government. Will have to see 230 00:14:08,200 --> 00:14:12,520 Speaker 3: if this type of external pressure begins to erode that trust, 231 00:14:12,840 --> 00:14:15,720 Speaker 3: because that can have an effect on other cases that 232 00:14:15,760 --> 00:14:18,040 Speaker 3: are being brought by the Department of Justice in the future. 233 00:14:18,440 --> 00:14:21,280 Speaker 2: And this is just the beginning of a long process. 234 00:14:21,360 --> 00:14:25,360 Speaker 2: Thanks so much, Bob. That's Robert Mince of Macarter and English. 235 00:14:25,600 --> 00:14:30,680 Speaker 2: I'm June Gross. So when you're listening to Bloomberg. President 236 00:14:30,760 --> 00:14:36,080 Speaker 2: Donald Trump has long criticized wind power, claiming it's expensive 237 00:14:36,200 --> 00:14:42,120 Speaker 2: and unreliable, and that massive wind turbans are unsightly, kill birds, 238 00:14:42,320 --> 00:14:46,520 Speaker 2: cause cancer, and drive whales crazy. Wind is the most 239 00:14:46,520 --> 00:14:51,120 Speaker 2: expensive form of energy, and it destroys the beauty of 240 00:14:51,200 --> 00:14:55,640 Speaker 2: your fields and your planes, and your and your waterways. 241 00:14:55,720 --> 00:15:01,520 Speaker 3: And Darling, I want to watch Trump and television tonight, 242 00:15:02,760 --> 00:15:05,280 Speaker 3: but the wind stop blowing and I can't watch. 243 00:15:05,440 --> 00:15:07,120 Speaker 2: There's no electricity in the house. 244 00:15:07,240 --> 00:15:10,880 Speaker 3: Darling, you want to see a bird cemetery. Go under 245 00:15:10,920 --> 00:15:12,840 Speaker 3: a windmill sometime you'll see the status. 246 00:15:14,040 --> 00:15:18,000 Speaker 2: And since returning to office, Trump has launched an attack 247 00:15:18,200 --> 00:15:22,920 Speaker 2: on wind power. His administration has stopped construction on major 248 00:15:23,000 --> 00:15:28,400 Speaker 2: offshore wind farms, revoked wind energy permits, cancel plans to 249 00:15:28,520 --> 00:15:33,080 Speaker 2: use large areas of federal waters for new offshore wind development, 250 00:15:33,320 --> 00:15:37,320 Speaker 2: and stop nearly seven hundred million dollars in federal funding 251 00:15:37,640 --> 00:15:41,960 Speaker 2: for a dozen offshore wind projects. But on Monday, a 252 00:15:42,120 --> 00:15:47,520 Speaker 2: major wind for wind energy DC Federal Judge Royce Lamberth 253 00:15:47,720 --> 00:15:50,680 Speaker 2: rule that work can resume on construction of a nearly 254 00:15:50,840 --> 00:15:54,520 Speaker 2: completed wind farm off the coast of Rhode Island, and 255 00:15:54,560 --> 00:15:59,480 Speaker 2: that the Trump administrations stop work order violated federal law 256 00:15:59,680 --> 00:16:03,960 Speaker 2: because it was arbitrary and capricious following years of planning 257 00:16:04,000 --> 00:16:08,160 Speaker 2: and coordination with the US government. My guest is environmental 258 00:16:08,240 --> 00:16:11,800 Speaker 2: law expert Pat Parento, a professor at the Vermont Law 259 00:16:11,880 --> 00:16:15,240 Speaker 2: and Graduate School. Pat tell us about this wind farm 260 00:16:15,360 --> 00:16:18,760 Speaker 2: off the coast of Rhode Island that's eighty percent complete. 261 00:16:18,880 --> 00:16:22,800 Speaker 1: Correct, It's a six billion dollar wind farm, would be 262 00:16:22,840 --> 00:16:26,960 Speaker 1: the largest in the United States. It's funded primarily by 263 00:16:27,360 --> 00:16:30,520 Speaker 1: a Danish firm or stead, So you know you're talking 264 00:16:30,560 --> 00:16:34,360 Speaker 1: about six billion dollars of investment in American energy supply, 265 00:16:34,880 --> 00:16:38,160 Speaker 1: and there was over twelve hundred jobs associated with it, 266 00:16:38,280 --> 00:16:41,320 Speaker 1: and the stop work order that the Department of Interior 267 00:16:41,480 --> 00:16:45,480 Speaker 1: issued threw those people out of work immediately. So yeah, 268 00:16:45,520 --> 00:16:49,160 Speaker 1: it's eighty percent complete. They need to install twenty turbans 269 00:16:49,240 --> 00:16:51,680 Speaker 1: to finish it, and they need to do it quickly 270 00:16:51,840 --> 00:16:56,480 Speaker 1: because the supply chain for getting the turbines here and 271 00:16:56,600 --> 00:17:00,560 Speaker 1: assembled and installed. You know, they're raising the cal it's 272 00:17:00,600 --> 00:17:04,000 Speaker 1: a clock for weather, and it's a clock for getting 273 00:17:04,240 --> 00:17:07,600 Speaker 1: the kind of support you need to get these turbines installed. 274 00:17:07,680 --> 00:17:07,920 Speaker 3: Right. 275 00:17:08,040 --> 00:17:11,320 Speaker 1: So this project is designed to serve three hundred and 276 00:17:11,359 --> 00:17:16,080 Speaker 1: fifty thousand home it's huge, it's fourteen hundred megawat and 277 00:17:16,320 --> 00:17:20,480 Speaker 1: it's also critical to the New England energy supply going forward. 278 00:17:20,520 --> 00:17:23,800 Speaker 1: So you know this project and Cape Wind is another 279 00:17:24,040 --> 00:17:27,919 Speaker 1: major offshore wind farm that was on the books but 280 00:17:27,960 --> 00:17:30,960 Speaker 1: now it's installed by Trump as well. So these two 281 00:17:31,160 --> 00:17:36,480 Speaker 1: wind projects are critical to supplying electricity in New England. 282 00:17:36,680 --> 00:17:39,760 Speaker 1: And of course electricity demands are going up in large 283 00:17:39,800 --> 00:17:43,240 Speaker 1: part in response to the AI build out and the big, 284 00:17:43,320 --> 00:17:46,399 Speaker 1: huge data centers that are stucking up so much energy. 285 00:17:46,840 --> 00:17:51,360 Speaker 1: It's also designed to lower electricity bills because the biggest 286 00:17:51,760 --> 00:17:55,360 Speaker 1: electricity demand is peak demand in the winter for heating, 287 00:17:55,680 --> 00:17:59,240 Speaker 1: and right now New England is relying very heavily on gas, 288 00:17:59,680 --> 00:18:03,560 Speaker 1: and you know, gas prices are incredibly volatile. So the 289 00:18:03,760 --> 00:18:07,879 Speaker 1: estimate is that this project alone would reduce electricity bills 290 00:18:07,920 --> 00:18:10,800 Speaker 1: in New England by five hundred million dollars. So, you know, 291 00:18:10,880 --> 00:18:15,520 Speaker 1: it's crazy because you've got a project supplying energy that's needed, 292 00:18:16,200 --> 00:18:21,280 Speaker 1: lowering energy prices, providing stability, and the Trump administration comes 293 00:18:21,320 --> 00:18:25,320 Speaker 1: along and issues this stopped work order, throws people out 294 00:18:25,320 --> 00:18:28,119 Speaker 1: of work, and now Judge Lambert has said, no, you 295 00:18:28,200 --> 00:18:28,919 Speaker 1: can't do that. 296 00:18:29,680 --> 00:18:35,120 Speaker 2: In stopping the project, the Trump administration cited national security concerns. 297 00:18:35,720 --> 00:18:37,560 Speaker 2: What national security concerns? 298 00:18:38,240 --> 00:18:42,359 Speaker 1: Yeah, well, you know it was a Secretary Bergham, Interior Secretary, 299 00:18:42,400 --> 00:18:46,840 Speaker 1: who said it has to do with cybersecurity, and there's 300 00:18:46,880 --> 00:18:52,399 Speaker 1: a concern about whether there would be undersea drone attacks 301 00:18:53,000 --> 00:18:55,840 Speaker 1: because of course you have to monitor not only the 302 00:18:55,880 --> 00:18:58,360 Speaker 1: operation of the turbines, but the fact that you've got 303 00:18:58,359 --> 00:19:01,199 Speaker 1: to get the electricity on shore. The point is that 304 00:19:01,240 --> 00:19:04,800 Speaker 1: the Department of Defense has already approved the system that 305 00:19:04,840 --> 00:19:07,600 Speaker 1: they're going to be using to monitor all this stuff. 306 00:19:07,640 --> 00:19:12,520 Speaker 1: So this national security excuse is illegitimate. I mean, if 307 00:19:12,520 --> 00:19:16,080 Speaker 1: there is really a national security issue, what exactly is it? 308 00:19:16,280 --> 00:19:19,960 Speaker 1: Why was that evidence not introduced before Judge Lambert? And 309 00:19:20,040 --> 00:19:20,480 Speaker 1: it wasn't. 310 00:19:21,160 --> 00:19:26,199 Speaker 2: The company claimed that the Trump administration violated a constitutional 311 00:19:26,280 --> 00:19:30,280 Speaker 2: right to do process and that the stop work order 312 00:19:30,480 --> 00:19:34,280 Speaker 2: was arbitrary and capricious. So tell us what the judge decided. 313 00:19:34,600 --> 00:19:38,199 Speaker 1: So Clambert said it was the height of arbitrary and 314 00:19:38,200 --> 00:19:41,399 Speaker 1: capricious action. In other words, there was no evidence introduced 315 00:19:41,640 --> 00:19:44,600 Speaker 1: to suggest that there really was a national security problem. 316 00:19:44,840 --> 00:19:47,359 Speaker 1: There was no evidence introduced that the company is in 317 00:19:47,440 --> 00:19:52,520 Speaker 1: violation of any environmental or regulatory requirement. This project has 318 00:19:52,600 --> 00:19:57,760 Speaker 1: been through ten years of analysis. I mean, in other respects, 319 00:19:57,960 --> 00:20:01,720 Speaker 1: the Trump administration is going crazy over the delays and 320 00:20:01,960 --> 00:20:06,800 Speaker 1: energy projects from environmental reviews and regulatory requirements. Well, this 321 00:20:06,880 --> 00:20:10,040 Speaker 1: project's been through ten years of it. So there's no 322 00:20:10,280 --> 00:20:14,400 Speaker 1: issue here, no legitimate issue for why this project shouldn't 323 00:20:14,400 --> 00:20:16,760 Speaker 1: be completed and come online. 324 00:20:16,920 --> 00:20:21,920 Speaker 2: The Trump administration usually appeals every federal district court's order 325 00:20:21,960 --> 00:20:24,680 Speaker 2: that goes against them. Do you think the project can 326 00:20:24,720 --> 00:20:30,400 Speaker 2: be completed before an appellate court or the Supreme Court intervenes. 327 00:20:31,040 --> 00:20:33,160 Speaker 1: I mean, I would have expected to have seen an 328 00:20:33,200 --> 00:20:36,360 Speaker 1: announcement from the Trump administration that they were going to appeal, 329 00:20:37,080 --> 00:20:41,719 Speaker 1: but they haven't. So that suggests to me that perhaps 330 00:20:41,880 --> 00:20:45,639 Speaker 1: they've rethought this, and at least as regards this project, 331 00:20:46,040 --> 00:20:48,680 Speaker 1: they're willing to back off and let it go forward. 332 00:20:48,800 --> 00:20:51,040 Speaker 1: I can't be sure of that, obviously, I wouldn't take 333 00:20:51,040 --> 00:20:54,800 Speaker 1: that to the bank necessarily, but it may be that, 334 00:20:54,920 --> 00:20:57,320 Speaker 1: at least on this one, they'll let it go. 335 00:20:57,840 --> 00:21:03,360 Speaker 2: Recently, the Trump administration has move to invalidate or reconsider 336 00:21:03,600 --> 00:21:07,840 Speaker 2: permits for other wind projects near Massachusetts that have yet 337 00:21:07,840 --> 00:21:10,960 Speaker 2: to start construction. Two weeks ago, they asked a court 338 00:21:11,040 --> 00:21:13,720 Speaker 2: to cancel the approval of a six billion dollar wind 339 00:21:13,800 --> 00:21:18,080 Speaker 2: project planned off Maryland's coast. I mean, are they targeting 340 00:21:18,440 --> 00:21:20,199 Speaker 2: all of these wind projects? 341 00:21:20,440 --> 00:21:20,600 Speaker 3: Oh? 342 00:21:20,680 --> 00:21:23,960 Speaker 1: Yes, they are definitely, not just wind but solar as well. 343 00:21:24,200 --> 00:21:27,439 Speaker 1: So it's across the board, though, and Bergham and the 344 00:21:27,480 --> 00:21:31,520 Speaker 1: Department of Energy are under orders executive orders from the 345 00:21:31,560 --> 00:21:36,840 Speaker 1: President to oppose renewable energy development. If there truly was 346 00:21:36,920 --> 00:21:40,879 Speaker 1: an energy emergency, why on earth would you stop projects 347 00:21:40,920 --> 00:21:42,959 Speaker 1: that are you know, not only in the pipeline, but 348 00:21:43,080 --> 00:21:46,040 Speaker 1: under construction and for which money is coming in from 349 00:21:46,119 --> 00:21:48,919 Speaker 1: outside the United States to build them, you know, in 350 00:21:49,240 --> 00:21:53,440 Speaker 1: electric vehicle plants in Georgia coming from South Korea, et cetera. 351 00:21:53,600 --> 00:21:57,080 Speaker 1: So this war on renewables makes no sense. 352 00:21:57,720 --> 00:22:00,280 Speaker 2: And so in light of all that, how how big 353 00:22:00,320 --> 00:22:03,440 Speaker 2: a win is Judge Lamberth's decision. 354 00:22:04,000 --> 00:22:06,160 Speaker 1: Oh, I think it's a huge win for not only 355 00:22:06,280 --> 00:22:09,160 Speaker 1: this project, but the other projects you mentioned that are 356 00:22:09,160 --> 00:22:11,800 Speaker 1: on the books for New England. I don't know whether 357 00:22:11,880 --> 00:22:14,240 Speaker 1: it will revive all of them or not, but this 358 00:22:14,320 --> 00:22:17,600 Speaker 1: would be the first order coming from a federal judge 359 00:22:17,640 --> 00:22:21,000 Speaker 1: saying to the Trump administration, you simply can't do this. 360 00:22:21,359 --> 00:22:24,080 Speaker 1: It's certainly granting them a stay of execution. 361 00:22:24,880 --> 00:22:30,200 Speaker 2: According to Bloomberg analysis, altogether, more than fifteen thousand prospective 362 00:22:30,280 --> 00:22:33,879 Speaker 2: and current jobs tied to win projects in New England 363 00:22:33,880 --> 00:22:38,520 Speaker 2: are under threat from the potential shutdowns, and there are 364 00:22:38,560 --> 00:22:43,800 Speaker 2: all kinds of other effects. For example, you know, Massachusetts 365 00:22:43,880 --> 00:22:46,679 Speaker 2: has a state organization has spent more than twenty million 366 00:22:46,800 --> 00:22:51,760 Speaker 2: in total offshore wind job training program. So the ramifications 367 00:22:51,960 --> 00:22:53,520 Speaker 2: are widespread. 368 00:22:54,280 --> 00:23:00,080 Speaker 1: Yes, they are for jobs, for investment, for lowering electricity bills, 369 00:23:00,440 --> 00:23:05,280 Speaker 1: for making energy more affordable for American consumers right down 370 00:23:05,280 --> 00:23:09,199 Speaker 1: the line. Never mind climate, never mind you know, environmental 371 00:23:09,240 --> 00:23:12,680 Speaker 1: impacts of energy development. If you think about gas, right, 372 00:23:12,960 --> 00:23:14,840 Speaker 1: where does the gas come from? Well, some of it 373 00:23:14,840 --> 00:23:18,919 Speaker 1: comes from the Marcella's shale in Pennsylvania, in Maryland, but 374 00:23:19,040 --> 00:23:21,760 Speaker 1: a lot of it comes from Ohio and further west, 375 00:23:21,840 --> 00:23:24,119 Speaker 1: and that's got to get there by pipeline. So you've 376 00:23:24,119 --> 00:23:27,600 Speaker 1: got to build all of this infrastructure, which is very expensive, 377 00:23:27,920 --> 00:23:31,120 Speaker 1: and then you've got to hope that gas prices remain stable, 378 00:23:31,119 --> 00:23:34,919 Speaker 1: which they don't. They're incredibly volatile because we're exporting a 379 00:23:34,960 --> 00:23:38,440 Speaker 1: lot of the gas. That's another priority of the administration. 380 00:23:38,680 --> 00:23:40,480 Speaker 1: They don't want to just produce the gas for a 381 00:23:40,600 --> 00:23:43,840 Speaker 1: US consumption, They want to produce it to send it overseas. 382 00:23:44,000 --> 00:23:48,880 Speaker 1: So all of these factors really support the idea if 383 00:23:48,920 --> 00:23:51,679 Speaker 1: you want to have a mixed energy portfolio. You know 384 00:23:51,720 --> 00:23:54,280 Speaker 1: a lot of us are concerned about over reliance on 385 00:23:54,400 --> 00:23:57,280 Speaker 1: gas and certainly coal and oil. But the point is 386 00:23:57,440 --> 00:24:00,639 Speaker 1: you can have all of those different in green to 387 00:24:00,760 --> 00:24:04,639 Speaker 1: a sensible energy policy. But that's not what we have. 388 00:24:04,960 --> 00:24:08,520 Speaker 1: We have a single minded determination to build as much 389 00:24:08,560 --> 00:24:11,760 Speaker 1: gas and revive the coal industry. That's going to drive 390 00:24:11,840 --> 00:24:15,280 Speaker 1: up consumer prices. Never mind the environmental impacts. 391 00:24:15,680 --> 00:24:20,000 Speaker 2: Ken what the Trump administration is doing here with wind 392 00:24:20,080 --> 00:24:26,080 Speaker 2: and solar power be unwound if the next administration supports 393 00:24:26,320 --> 00:24:27,359 Speaker 2: renewable energy. 394 00:24:27,880 --> 00:24:29,800 Speaker 1: You know, one of the biggest problems is if you 395 00:24:29,880 --> 00:24:33,520 Speaker 1: discourage this investment, you discourage the banks in the United 396 00:24:33,560 --> 00:24:35,640 Speaker 1: States and elsewhere around the world. Some of the other 397 00:24:35,720 --> 00:24:38,720 Speaker 1: banks around the world have even more money to invest. 398 00:24:38,880 --> 00:24:42,360 Speaker 1: You know, if you're a discouraging investment in energy supply, 399 00:24:43,040 --> 00:24:46,040 Speaker 1: that is going to have long term impacts for sure. 400 00:24:46,680 --> 00:24:49,320 Speaker 1: Whether or not that can be turned around is an 401 00:24:49,400 --> 00:24:53,840 Speaker 1: open question. But right now the evidence is that we're 402 00:24:53,840 --> 00:24:57,280 Speaker 1: not only not building systems that we need, but we're 403 00:24:57,280 --> 00:25:00,680 Speaker 1: discouraging people from investing in those and. 404 00:25:00,680 --> 00:25:04,640 Speaker 2: Pat what's the landscape for future legal actions as far 405 00:25:04,720 --> 00:25:06,359 Speaker 2: as wind farms are concerned. 406 00:25:06,760 --> 00:25:12,440 Speaker 1: The Trump administration is reviewing permit plans for other wind farms, 407 00:25:12,920 --> 00:25:14,640 Speaker 1: and so the first step is going to be what's 408 00:25:14,680 --> 00:25:16,960 Speaker 1: the result of that review. Are they going to pull 409 00:25:17,040 --> 00:25:21,440 Speaker 1: back and cancel leases, Are they going to cancel permits? 410 00:25:21,960 --> 00:25:24,320 Speaker 1: Are they going to try to stop these projects through 411 00:25:24,320 --> 00:25:25,199 Speaker 1: that mechanism? 412 00:25:25,520 --> 00:25:25,720 Speaker 3: Right? 413 00:25:25,960 --> 00:25:28,520 Speaker 1: And then of course people will sue, and if those 414 00:25:28,600 --> 00:25:31,280 Speaker 1: kinds of cases get to court, depending on what the 415 00:25:31,359 --> 00:25:35,440 Speaker 1: administration has actually ruled or said about them, then you're 416 00:25:35,440 --> 00:25:38,480 Speaker 1: going to get into questions about can you really stop 417 00:25:38,560 --> 00:25:42,520 Speaker 1: these projects? Can you really cancel these leases or permits? 418 00:25:42,920 --> 00:25:45,919 Speaker 1: You know, those are all questions in the future, and 419 00:25:46,040 --> 00:25:49,160 Speaker 1: until we see exactly what Trump's going to do case 420 00:25:49,200 --> 00:25:52,120 Speaker 1: by case, project by project, we won't be able to say. 421 00:25:52,400 --> 00:25:55,400 Speaker 2: And with all the litigation that's probably ahead, does the 422 00:25:55,520 --> 00:26:01,080 Speaker 2: Justice Department still have experienced environmental litigators in place? I 423 00:26:01,119 --> 00:26:04,040 Speaker 2: know there's been a lot of shuffling and moving lawyers 424 00:26:04,080 --> 00:26:07,760 Speaker 2: to areas that they're not familiar with, like immigration, and 425 00:26:07,840 --> 00:26:10,320 Speaker 2: because of that, a lot of lawyers have also left. 426 00:26:10,760 --> 00:26:15,080 Speaker 1: They have fired or reassigned some of the senior lawyers 427 00:26:15,280 --> 00:26:18,560 Speaker 1: in the Department of Justice in the Environmental Division. If 428 00:26:18,560 --> 00:26:21,679 Speaker 1: they're bringing people in to the Department of Justice that 429 00:26:21,840 --> 00:26:27,800 Speaker 1: don't have deep experience in these very complicated environmental laws. 430 00:26:27,880 --> 00:26:30,600 Speaker 1: If you think about the Outer Continental Shelf, you know, 431 00:26:30,720 --> 00:26:35,040 Speaker 1: there's a long history of incredibly dense law that governs 432 00:26:35,080 --> 00:26:37,720 Speaker 1: what happens on the outer Continental shelf. And then you 433 00:26:37,800 --> 00:26:40,640 Speaker 1: layer on all the other laws, the Endangered Species Act, 434 00:26:40,720 --> 00:26:44,879 Speaker 1: the Marine Mammal Protection Act and this Magdison Stevens Sustainable 435 00:26:44,920 --> 00:26:48,639 Speaker 1: Fisheries Act. So you're talking about an incredible complex of 436 00:26:48,760 --> 00:26:51,119 Speaker 1: federal law that has a very long history back to 437 00:26:51,160 --> 00:26:54,200 Speaker 1: there in some cases beyond the seventies when we saw 438 00:26:54,200 --> 00:26:57,560 Speaker 1: all the environmental legislation being passed it by Congress. So 439 00:26:57,800 --> 00:27:00,320 Speaker 1: you know, you just can't drop lawyers into the middle 440 00:27:00,359 --> 00:27:02,600 Speaker 1: of something like that and expect them to really know 441 00:27:03,119 --> 00:27:04,719 Speaker 1: their way around these blogs. 442 00:27:04,880 --> 00:27:07,280 Speaker 2: It's not an easy area of the law to litigate. 443 00:27:07,440 --> 00:27:10,520 Speaker 2: Thanks so much, Pat. That's Professor Pat Parento of the 444 00:27:10,600 --> 00:27:15,320 Speaker 2: Vermont Law and Graduate School. US Attorney General Pam Bondi 445 00:27:15,560 --> 00:27:19,600 Speaker 2: threatened to go after hate speech on a podcast last week. 446 00:27:19,840 --> 00:27:24,720 Speaker 1: We will absolutely target you, go after you if you 447 00:27:24,920 --> 00:27:27,840 Speaker 1: are targeting anyone with hate speech. 448 00:27:28,400 --> 00:27:32,679 Speaker 2: Bondy was wrong. Hate speech is not a crime. In fact, 449 00:27:32,800 --> 00:27:36,639 Speaker 2: hate speech is free speech protected by the First Amendment. 450 00:27:37,400 --> 00:27:41,960 Speaker 2: Just ask the Supreme Court. Conservative Justice Samuel Alito wrote 451 00:27:42,000 --> 00:27:46,000 Speaker 2: in twenty seventeen, quote, the proudest boast of our free 452 00:27:46,040 --> 00:27:50,199 Speaker 2: speech jurisprudence is that we protect the freedom to express 453 00:27:50,520 --> 00:27:54,600 Speaker 2: the thought that we hate. Bondi's remarks to criticism from 454 00:27:54,640 --> 00:27:58,280 Speaker 2: across the political spectrum and she tried to walk them 455 00:27:58,359 --> 00:28:02,439 Speaker 2: back with some confusing posts on X joining me is 456 00:28:02,520 --> 00:28:06,119 Speaker 2: First Amendment expert Timothy Zick, a professor at William and 457 00:28:06,160 --> 00:28:10,600 Speaker 2: Mary Law School, Tim can you define hate speech for US? 458 00:28:10,800 --> 00:28:13,960 Speaker 4: Well, it doesn't have a definition in US law or 459 00:28:14,040 --> 00:28:17,840 Speaker 4: First Amendment or prudence. There's no category of hate speech 460 00:28:18,240 --> 00:28:22,399 Speaker 4: that is unprotected under the First Amendment. That's in contrast 461 00:28:22,440 --> 00:28:25,600 Speaker 4: to European countries and other countries that do have the 462 00:28:25,760 --> 00:28:31,280 Speaker 4: statutory prescriptions on speech that derrigates or criticizes people based 463 00:28:31,320 --> 00:28:35,520 Speaker 4: on gender or race or some other protected characteristic. But 464 00:28:35,560 --> 00:28:39,040 Speaker 4: if the Attorney General should know, in the United States 465 00:28:39,160 --> 00:28:42,880 Speaker 4: in general, hate speech is not criminally prescribable. 466 00:28:43,280 --> 00:28:46,480 Speaker 2: The Supreme Court has protected hate speech in more than 467 00:28:46,520 --> 00:28:49,719 Speaker 2: one case. The one that stands out in my mind 468 00:28:50,040 --> 00:28:54,479 Speaker 2: is Brandenburg versus Ohio, the case involving the Nazi Party 469 00:28:54,640 --> 00:28:57,920 Speaker 2: marching in Skokie, Illinois, in nineteen seventy seven. 470 00:28:58,360 --> 00:29:02,239 Speaker 4: Well, the Supreme Court and others has come down on 471 00:29:02,320 --> 00:29:05,080 Speaker 4: the side of freedom of expression right in the sense 472 00:29:05,120 --> 00:29:09,400 Speaker 4: that the government cannot criminalize or otherwise punish the expression 473 00:29:09,400 --> 00:29:13,880 Speaker 4: of viewpoints, even if those viewpoints are offensive or vile 474 00:29:14,520 --> 00:29:19,680 Speaker 4: or derogatory. Right so even speach in supportive Nazism, this 475 00:29:19,760 --> 00:29:24,240 Speaker 4: is a general matter protected speech. Speech that offends people 476 00:29:24,280 --> 00:29:28,680 Speaker 4: based on race, or gender or sexual orientation, that's also 477 00:29:28,960 --> 00:29:33,840 Speaker 4: protected speech. And the Supreme Court has been consistent in 478 00:29:34,280 --> 00:29:36,960 Speaker 4: drawing that line where it has in the sense that 479 00:29:37,080 --> 00:29:40,600 Speaker 4: you know, whether it's Nazis marching in Skoki, that case reached, 480 00:29:40,600 --> 00:29:43,280 Speaker 4: the Supreme Court is that decided. Look, the town of 481 00:29:43,280 --> 00:29:46,200 Speaker 4: Skokey cannot enact all these ordinances to try and prevent 482 00:29:46,280 --> 00:29:50,480 Speaker 4: Nazis from marching or displaying Nazi regalia. The Supreme Court 483 00:29:50,520 --> 00:29:55,239 Speaker 4: protects viewpoints even if they're vile. There are some narrow exceptions, right, 484 00:29:55,280 --> 00:29:57,840 Speaker 4: If you threaten another person to fothering injoy your death, 485 00:29:58,080 --> 00:30:01,640 Speaker 4: if you incite other people to auge and imminent unlawful 486 00:30:01,680 --> 00:30:04,760 Speaker 4: activity that's likely to occur, those sorts of things are 487 00:30:04,800 --> 00:30:08,440 Speaker 4: not protected. The government cannot have the power to tell 488 00:30:08,480 --> 00:30:12,600 Speaker 4: an audience in the United States what speech is appropriate 489 00:30:12,840 --> 00:30:14,640 Speaker 4: or too offensive to be heard. 490 00:30:14,880 --> 00:30:18,160 Speaker 2: But the Court has recognized an exception to the First 491 00:30:18,200 --> 00:30:22,080 Speaker 2: Amendment for threats of violence. How are they defined? 492 00:30:22,680 --> 00:30:26,160 Speaker 4: That's a narrow exception to First Amendment protection. Right, So 493 00:30:26,400 --> 00:30:29,280 Speaker 4: if you communicate what the Court is defined as a 494 00:30:29,400 --> 00:30:33,239 Speaker 4: serious expression of an intent to inflict bodily harm or 495 00:30:33,280 --> 00:30:36,800 Speaker 4: death on the person. Then you can be punished for 496 00:30:36,960 --> 00:30:40,160 Speaker 4: that kind of speech. But the narrowness here is, you know, 497 00:30:40,200 --> 00:30:42,320 Speaker 4: it has to be a serious expression. It can't be 498 00:30:42,320 --> 00:30:46,240 Speaker 4: something said in jets. It can't be hyperbolic language where 499 00:30:46,240 --> 00:30:49,360 Speaker 4: you say, well this person should be hung for their crimes, 500 00:30:49,520 --> 00:30:51,960 Speaker 4: that sort of thing. It has to be more directed, 501 00:30:52,080 --> 00:30:55,360 Speaker 4: more specific, And as the Supreme Court has recently said, 502 00:30:55,760 --> 00:30:59,320 Speaker 4: uttered recklessly that you know, there's a risk when you 503 00:30:59,360 --> 00:31:01,760 Speaker 4: say the word that a person will perceive what you're 504 00:31:01,800 --> 00:31:04,640 Speaker 4: saying is threatening. But you say it anyway. So it's 505 00:31:04,680 --> 00:31:08,680 Speaker 4: not just threatening language. That's not unprotected speech. It's something 506 00:31:08,840 --> 00:31:12,440 Speaker 4: far more specific than that. And when the Attorney General said, well, 507 00:31:12,480 --> 00:31:14,720 Speaker 4: what I meant to say it wasn't hate speech, really, 508 00:31:14,720 --> 00:31:17,320 Speaker 4: it was threat Well, none of the speech that we've 509 00:31:17,360 --> 00:31:23,080 Speaker 4: been talking about since Charlie Kirk's assassination, you know, constitutes threats. 510 00:31:23,440 --> 00:31:26,040 Speaker 4: Right when you praise or celebrate someone's death, that's not 511 00:31:26,080 --> 00:31:29,600 Speaker 4: a threat. So you know, she got it wrong twice. Essentially. 512 00:31:30,360 --> 00:31:33,880 Speaker 2: She also said in her explanation, you can't call for 513 00:31:33,960 --> 00:31:38,000 Speaker 2: someone's murder. You cannot swat a member of Congress. You 514 00:31:38,040 --> 00:31:41,160 Speaker 2: cannot dos a conservative family and think it will be 515 00:31:41,200 --> 00:31:44,960 Speaker 2: brushed off as free speech. These acts are punishable crimes, 516 00:31:45,360 --> 00:31:47,640 Speaker 2: and every single threat will be met with the full 517 00:31:47,720 --> 00:31:52,080 Speaker 2: force of the law. Are all the things she mentioned punishable. 518 00:31:52,080 --> 00:31:54,840 Speaker 4: Well, some of them are protected, right. It depends on 519 00:31:54,880 --> 00:31:57,080 Speaker 4: the sort of statute that you're looking at, you know, 520 00:31:57,080 --> 00:32:01,080 Speaker 4: how narrowly it's defining harassment. For example, sample or threat. 521 00:32:01,560 --> 00:32:05,680 Speaker 4: Calling for the murder of someone is not incitement. It 522 00:32:05,800 --> 00:32:06,760 Speaker 4: is not a threat. 523 00:32:07,160 --> 00:32:07,360 Speaker 3: Right. 524 00:32:07,640 --> 00:32:10,560 Speaker 4: I wish you know so and so would die. Is 525 00:32:10,600 --> 00:32:13,120 Speaker 4: a terrible thing to think and a terrible thing to say, 526 00:32:13,800 --> 00:32:18,120 Speaker 4: but it's not unprotected expression under our First Amendment doctrines 527 00:32:18,240 --> 00:32:22,080 Speaker 4: and jurisprudence. Yes, there's conduct that you can go after. 528 00:32:22,160 --> 00:32:26,640 Speaker 4: If I repeatedly harass someone, whether it's online or offline, 529 00:32:26,760 --> 00:32:29,360 Speaker 4: then that can rise to the level of harassment. But 530 00:32:29,360 --> 00:32:31,520 Speaker 4: there I'm not being punished for my expression. I'm being 531 00:32:31,560 --> 00:32:36,560 Speaker 4: punished for the act of repetitious harassment of another. And 532 00:32:36,680 --> 00:32:42,160 Speaker 4: docting is difficult, right, because just publishing information about, say, 533 00:32:42,200 --> 00:32:46,560 Speaker 4: where someone lives, is not necessarily unprotected speech. 534 00:32:46,760 --> 00:32:46,920 Speaker 2: Right. 535 00:32:47,160 --> 00:32:49,400 Speaker 4: A lot depends on the contact. And again they said 536 00:32:49,440 --> 00:32:51,200 Speaker 4: it's statute under which you're reviewing it. 537 00:32:52,080 --> 00:32:54,880 Speaker 2: And wasn't there a Supreme Court case a few years 538 00:32:54,920 --> 00:32:58,920 Speaker 2: ago involving threats on the internet. 539 00:32:58,600 --> 00:33:02,360 Speaker 4: Counterman versus Colorado. Yeah, that was this very recent threats 540 00:33:02,400 --> 00:33:05,600 Speaker 4: case the Supreme Court handed down. There was a singer 541 00:33:05,800 --> 00:33:10,880 Speaker 4: who had some uninvited online messages. Tried to block the 542 00:33:10,920 --> 00:33:14,040 Speaker 4: person from contacting her. He just opened new accounts and 543 00:33:14,120 --> 00:33:19,120 Speaker 4: kept contacting her, And eventually this person was prosecuted for 544 00:33:19,120 --> 00:33:22,000 Speaker 4: form of harassments. But the court below and then the 545 00:33:22,040 --> 00:33:24,760 Speaker 4: Supreme Court treated it as raising the question of whether 546 00:33:25,120 --> 00:33:28,080 Speaker 4: this person had communicated what it called true threats as 547 00:33:28,080 --> 00:33:32,360 Speaker 4: I described earlier, serious expressions of an intent to cause 548 00:33:32,480 --> 00:33:36,040 Speaker 4: bodily injury or death to another. And what the court 549 00:33:36,160 --> 00:33:38,880 Speaker 4: was wrestling with in that piece was a mental state 550 00:33:38,920 --> 00:33:42,760 Speaker 4: required for the speaker, and a number of courts before 551 00:33:42,800 --> 00:33:46,360 Speaker 4: that had sort of adopted this subjective test. Well, if 552 00:33:46,400 --> 00:33:48,880 Speaker 4: I'm the audience for that speech and I perceived it 553 00:33:48,920 --> 00:33:52,040 Speaker 4: subjectively as threatening, that should be enough. And the court 554 00:33:52,120 --> 00:33:54,760 Speaker 4: was worried, well, that's not speech protective enough. That's going 555 00:33:54,840 --> 00:34:00,080 Speaker 4: to cause misunderstandings to be translated into criminalized threat. We 556 00:34:00,120 --> 00:34:02,920 Speaker 4: don't want that, But we also don't want a sort 557 00:34:02,920 --> 00:34:05,520 Speaker 4: of lower standard. So let's find something in the middle 558 00:34:05,560 --> 00:34:09,560 Speaker 4: for a goldilock standard, and they settle on recklessness. If 559 00:34:09,560 --> 00:34:13,440 Speaker 4: the person knows of a substantial risk that the person 560 00:34:13,520 --> 00:34:16,720 Speaker 4: he is communicating with is when it perceives the speech 561 00:34:16,800 --> 00:34:19,600 Speaker 4: is threatening, then that's the kind of recklessness that the 562 00:34:19,600 --> 00:34:22,880 Speaker 4: First Amendment requires before you label something a true threat. 563 00:34:23,239 --> 00:34:27,800 Speaker 2: So you have the Attorney General's remarks, you have Todd Blanche, 564 00:34:27,840 --> 00:34:32,200 Speaker 2: the Deputy Attorney General, saying that people protesting at a 565 00:34:32,239 --> 00:34:36,440 Speaker 2: restaurant while Trump was having dinner might have committed a crime. 566 00:34:37,000 --> 00:34:40,640 Speaker 2: And you have President Trump's statements, including saying to an 567 00:34:40,719 --> 00:34:45,160 Speaker 2: ABC reporter, will probably go after people like you because 568 00:34:45,160 --> 00:34:48,359 Speaker 2: you treat me so unfairly. It's hate. Why is there 569 00:34:48,400 --> 00:34:51,400 Speaker 2: this fundamental misunderstanding of hate speech. 570 00:34:52,040 --> 00:34:54,480 Speaker 4: Well, I don't know if it's a misunderstanding. I mean, 571 00:34:54,520 --> 00:34:58,080 Speaker 4: it's just been sort of President Trump's a longstanding position, right, 572 00:34:58,120 --> 00:35:02,160 Speaker 4: He either doesn't understand or doesn't appreciate freedom of expression. 573 00:35:02,360 --> 00:35:06,759 Speaker 4: So his view is that negative press isn't protected. You 574 00:35:06,760 --> 00:35:11,759 Speaker 4: can pull the broadcast license of a broadcaster that publishes 575 00:35:12,040 --> 00:35:16,560 Speaker 4: critical coverage of him. It's consistently negative right. That, of course, 576 00:35:16,640 --> 00:35:20,120 Speaker 4: is contrary to the First Amendment. Going after your political 577 00:35:20,200 --> 00:35:23,320 Speaker 4: enemies for things that they say is part of the 578 00:35:23,360 --> 00:35:27,840 Speaker 4: sort of Trump mantra, but it is unconstitutional. And you know, 579 00:35:27,880 --> 00:35:30,000 Speaker 4: what's interesting to me is recently people have said, oh, 580 00:35:30,080 --> 00:35:33,560 Speaker 4: we've crossed some line here where the president is threatening 581 00:35:33,600 --> 00:35:36,920 Speaker 4: retribution into this political enemy. We are nine months into 582 00:35:36,960 --> 00:35:40,960 Speaker 4: a retribution campaign. It's gotten louder, but it's been there 583 00:35:41,000 --> 00:35:43,520 Speaker 4: the whole time. I mean, they've gone after law firms, 584 00:35:43,840 --> 00:35:48,760 Speaker 4: international students, the American Bar Association, and plenty of others 585 00:35:48,960 --> 00:35:52,440 Speaker 4: up to this point. What's different is it's more explicit, 586 00:35:52,480 --> 00:35:55,600 Speaker 4: I suppose one could say, and the drumbeat is getting louder. 587 00:35:55,640 --> 00:35:59,240 Speaker 4: We're going to go after particularly so called left leaning 588 00:35:59,560 --> 00:36:02,960 Speaker 4: speakers or organizations who say things that we don't like, 589 00:36:03,320 --> 00:36:07,800 Speaker 4: and the First Amendment stands in complete opposition to that position. 590 00:36:08,360 --> 00:36:12,680 Speaker 4: So what's changed. I mean, the Kirk assassination horrific event, 591 00:36:13,760 --> 00:36:16,880 Speaker 4: bound to create, you know, sort of churn and backlash, 592 00:36:17,000 --> 00:36:21,319 Speaker 4: but the administration's answer to that has been again, we're 593 00:36:21,320 --> 00:36:24,520 Speaker 4: going to go after the left so called and we're 594 00:36:24,520 --> 00:36:28,920 Speaker 4: going to punish speakers who say nasty things about Charlie 595 00:36:29,000 --> 00:36:31,640 Speaker 4: Kirk or you know, about President Trump and the First 596 00:36:31,680 --> 00:36:33,879 Speaker 4: Amendment just simply doesn't allow them to do that. 597 00:36:34,400 --> 00:36:39,920 Speaker 2: Across the country, people from teachers to airline pilots to 598 00:36:40,120 --> 00:36:46,719 Speaker 2: healthcare workers have been fired, suspended, or disciplined over remarks, 599 00:36:46,760 --> 00:36:51,800 Speaker 2: particularly social media posts about Charlie Kirk and Vice President J. D. 600 00:36:52,040 --> 00:36:56,799 Speaker 2: Vance encouraged reporting these remarks to people's employers. 601 00:36:57,480 --> 00:37:00,600 Speaker 3: So when you see someone celebrating Charlie's murder, call them 602 00:37:00,640 --> 00:37:02,520 Speaker 3: out in hell, call their employer. 603 00:37:03,040 --> 00:37:05,720 Speaker 4: We don't believe in political violence, but we do believe 604 00:37:05,840 --> 00:37:06,759 Speaker 4: in civility. 605 00:37:07,239 --> 00:37:11,040 Speaker 2: Explain why the First Amendment doesn't protect private employees. 606 00:37:11,680 --> 00:37:15,399 Speaker 4: The rules are different for private and government speakers. Right, 607 00:37:15,480 --> 00:37:18,080 Speaker 4: So if you're talking about a private employee and at 608 00:37:18,080 --> 00:37:20,960 Speaker 4: will employee who can be dismissed for any reason, at 609 00:37:20,960 --> 00:37:24,600 Speaker 4: all or no reason, then they can be dismissed or 610 00:37:25,040 --> 00:37:28,120 Speaker 4: speech that they publish or communicate. There are only a 611 00:37:28,160 --> 00:37:32,480 Speaker 4: few states where you get some statutory protection for political speech, 612 00:37:32,719 --> 00:37:36,200 Speaker 4: but in general, you speak at your peril. With respect 613 00:37:36,280 --> 00:37:40,560 Speaker 4: to private employment, public employment is very different. Public employees 614 00:37:40,560 --> 00:37:44,520 Speaker 4: retain some First Amendment right as citizens to speak on 615 00:37:45,040 --> 00:37:48,799 Speaker 4: newsworthy matters, which certainly covers the speech that has been 616 00:37:49,080 --> 00:37:53,000 Speaker 4: sort of debated post to Charlie Kirks murder, and it's complicated. 617 00:37:53,120 --> 00:37:56,560 Speaker 4: So if you're a public employee and you say something offensive, 618 00:37:56,680 --> 00:38:01,040 Speaker 4: Let's say you praise Charlie Kirks murder and you're university professor, 619 00:38:01,560 --> 00:38:04,920 Speaker 4: and your employer says, well, I'm going to terminate your employment. Well, 620 00:38:04,920 --> 00:38:08,200 Speaker 4: putting aside the ten year and academic freedom problems there, 621 00:38:08,600 --> 00:38:11,640 Speaker 4: as a public employee, you have a First Amendment right 622 00:38:11,840 --> 00:38:15,000 Speaker 4: to communicate that, but the Supreme Court has said what 623 00:38:15,040 --> 00:38:17,440 Speaker 4: you get as a public employee if you speak on 624 00:38:17,520 --> 00:38:20,120 Speaker 4: matters of public concerns, is a balance. We're going to 625 00:38:20,160 --> 00:38:22,960 Speaker 4: balance your right to speak against the employer's interest in 626 00:38:23,040 --> 00:38:28,279 Speaker 4: efficient operations. So across a range of public employment, what 627 00:38:28,400 --> 00:38:30,480 Speaker 4: you might find in some cases is that courts will 628 00:38:30,480 --> 00:38:33,080 Speaker 4: side with the employer. What you said was so offensive 629 00:38:33,600 --> 00:38:36,880 Speaker 4: it created disruption in the workplace, and we're not required 630 00:38:36,880 --> 00:38:39,720 Speaker 4: to tolerate that. So it can be complicated to respect 631 00:38:39,719 --> 00:38:43,040 Speaker 4: the public employment, but it's much simpler with regard to private. 632 00:38:43,040 --> 00:38:45,400 Speaker 2: Do you think a hate speech case will reach the 633 00:38:45,440 --> 00:38:46,560 Speaker 2: Supreme Court? 634 00:38:46,680 --> 00:38:49,319 Speaker 4: It's not clear yet what the administration intends to do 635 00:38:49,640 --> 00:38:53,879 Speaker 4: with respect to so called hate speech investigations or prosecutions. 636 00:38:53,960 --> 00:38:57,279 Speaker 4: Mostly what they're doing is threatening to investigate people for 637 00:38:57,600 --> 00:39:00,239 Speaker 4: core political speech. So we wouldn't even be taught talking 638 00:39:00,239 --> 00:39:02,520 Speaker 4: about hate speech. It would be more you know, I'm 639 00:39:02,520 --> 00:39:06,520 Speaker 4: going to go after George Sorows organization because it supports 640 00:39:06,640 --> 00:39:11,240 Speaker 4: left wing positions or its funds left wing political activist 641 00:39:11,280 --> 00:39:13,600 Speaker 4: and what's clearly unconstitutional. I don't even know if the 642 00:39:13,600 --> 00:39:16,400 Speaker 4: Supreme Court would be interested in a case like that. 643 00:39:16,560 --> 00:39:20,040 Speaker 4: I'm assuming a lower court would say that's unconstitutional. But 644 00:39:20,120 --> 00:39:22,600 Speaker 4: there are cases in the First Amendment realm that may 645 00:39:22,640 --> 00:39:25,600 Speaker 4: make it to the Court, some of them involving maybe 646 00:39:25,680 --> 00:39:28,520 Speaker 4: the rights of non citizens under the First Amendment, which 647 00:39:28,560 --> 00:39:31,200 Speaker 4: the Court has been unclear about. I may want to 648 00:39:31,239 --> 00:39:34,359 Speaker 4: clarify that. Some of the university cases, the Harvard case, 649 00:39:34,400 --> 00:39:38,800 Speaker 4: for example, where the administration is terminating funds the university 650 00:39:38,840 --> 00:39:42,080 Speaker 4: says based on their speech, maybe there'll be a press 651 00:39:42,120 --> 00:39:45,200 Speaker 4: case involving a broadcast license or something like that. I 652 00:39:45,200 --> 00:39:47,600 Speaker 4: can imagine the Court being interested in those cases. 653 00:39:47,920 --> 00:39:51,440 Speaker 2: Thanks so much, Tim. That's Professor Timothy Zick of William 654 00:39:51,480 --> 00:39:54,359 Speaker 2: and Mary Law School. And that's it for this edition 655 00:39:54,400 --> 00:39:57,040 Speaker 2: of The Bloomberg Law Show. Remember you can always get 656 00:39:57,080 --> 00:40:00,239 Speaker 2: the latest legal news on our Bloomberg Law Podcast. You 657 00:40:00,280 --> 00:40:04,360 Speaker 2: can find them on Apple Podcasts, Spotify, and at www 658 00:40:04,480 --> 00:40:08,760 Speaker 2: dot bloomberg dot com slash podcast, slash Law, and remember 659 00:40:08,800 --> 00:40:11,759 Speaker 2: to tune into The Bloomberg Law Show every weeknight at 660 00:40:11,760 --> 00:40:15,239 Speaker 2: ten pm Wall Street Time. I'm June Grosso and you're 661 00:40:15,320 --> 00:40:16,560 Speaker 2: listening to Bloomberg