Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2: Former FBI Director James Comy was defiant in the face
Speaker 2: of a federal indictment on two felony charges of making
Speaker 2: false statements and obstruction. My heart is broken for the
Speaker 2: Department of Justice, but I have great confidence in the
Speaker 2: federal judicial system.
Speaker 3: I'm innocent, so let's have a trial.
Speaker 2: The unprecedented indictment came just five days after President Donald Trump,
Speaker 2: in a post on truth Social demanded that Attorney General
Speaker 2: Pam Bondi bring charges against his perceived enemies, naming Comy,
Speaker 2: New York Attorney General Letitia James, and California Senator Adam Schiff.
Speaker 2: The charges center on testimony Comy gave in response to
Speaker 2: questions from Republican Senator Ted Cruz during a twenty twenty
Speaker 2: hearing over the FBI's investigation into Russian interference in the
Speaker 2: twenty sixteen election.
Speaker 3: What mister McKay is saying and what you testify to
Speaker 3: this committee cannot both be true.
Speaker 1: One or the other is false. Who's telling the truth?
Speaker 3: I can only speak to my testimony. I stand by
Speaker 3: what the testimony you summarized that I gave in May
Speaker 3: of twenty seventeen.
Speaker 2: The indictment follows chaos inside the Justice Department after career
Speaker 2: prosecutors advised against bringing the charges, and the acting US
Speaker 2: Attorney in the Eastern District of Virginia who resigned was
Speaker 2: replaced by one of Trump's personal attorneys, an insurance lawyer
Speaker 2: with no prosecutorial experience. Joining me is former federal prosecutor
Speaker 2: Robert Mintz, a partner Macarter and English Bob. What is
Speaker 2: the significance of this indictment, Well.
Speaker 3: It's enormously significant in the sense that it's the first
Speaker 3: time of former FBI director has ever been indicted. And
Speaker 3: it's also very unusual because the subject of this indictment,
Speaker 3: James Comey, has been an antagonist to President Trump for
Speaker 3: so many years now, and there was pressure, frankly by
Speaker 3: the White House on the Department of Justice to take
Speaker 3: a look at this case and to bring charges against
Speaker 3: the former FBI director. There are long standing, unwritten norms
Speaker 3: that have separated the Department of Justice from the White House,
Speaker 3: and all of the presidential predecessors to President Trump have
Speaker 3: at least to some degree, sought to distance themselves from
Speaker 3: the Justice Department's prosecutorial decisions. Certainly, at least in public.
Speaker 3: They have declined to weigh in on pending cases, for example,
Speaker 3: especially those types of cases that touched on politics. And
Speaker 3: they have at least spoken publicly about the deference that
Speaker 3: the White House gives to the Department of Justice, tradition
Speaker 3: of independence that allows prosecutors to make decisions about whether
Speaker 3: or not to bring cases based solely upon the evidence
Speaker 3: and the law, without any outside influence or even the
Speaker 3: appearance of any political pressure behind the decision whether to
Speaker 3: bring a criminal case.
Speaker 2: The indictment is less than two pages, so very minimal information.
Speaker 2: What do we know about the charges?
Speaker 3: The indictment stems from James Coomy's sworn appearance during a
Speaker 3: Judiciary committee hearing on the FBI's handling of investigations into
Speaker 3: Russian interference in the twenty sixteen election. What prosecutors are
Speaker 3: alleging in this indictment is that mister Komy knowingly misled
Speaker 3: senators on two critical points. First, the government claims that
Speaker 3: Comy falsely denied authorizing anyone at the FBI to act
Speaker 3: as an anonymous source to the media regarding the investigation.
Speaker 3: To the charging documents, he did it willfully and knowingly
Speaker 3: and made a materially false, fictitious, and fraudulent statement by
Speaker 3: falsely stating to a United States Senator that he had
Speaker 3: not authorized someone else at the FBI to be an
Speaker 3: anonymous source in news reports regarding an FBI investigation. The
Speaker 3: second charge allegacy Comy obstructed Congress by making false and
Speaker 3: misleading statements basically aimed at impeding the committee's inquiry into
Speaker 3: the FBI's actions regarding the twenty sixteen election. The third
Speaker 3: proposed count, which was an obstruction of a congressional proceeding,
Speaker 3: was rejected, apparently by the Grand Injury. Court. Records show
Speaker 3: that grandeurors did not find sufficient evidence to support that charge,
Speaker 3: and that was dropped from the indictment, which was then
Speaker 3: revised and presented to the judge.
Speaker 2: Though false statements may sound like a pretty straightforward charge
Speaker 2: to prove, actually proving the crime of false statements is
Speaker 2: anything but easy. Ask Special counsel John Durham. Two people
Speaker 2: charged by him with making false statements were acquitted at trial.
Speaker 2: So what does a prosecutor have to prove?
Speaker 1: Here?
Speaker 3: To prove the case of making false statements, prosecutors will
Speaker 3: have to convince the jury that James Comy not only
Speaker 3: made false statements to Congress, but that he did so knowingly,
Speaker 3: and that any false statements that he made were material
Speaker 3: to the focus of the Senate proceedings. So essentially, what
Speaker 3: has to happen in these types of prosecutions and why
Speaker 3: they are so rare, is that prosecutors have to get
Speaker 3: inside the head of the person who is making the statement.
Speaker 1: They have to get inside the mind.
Speaker 3: Of the defendant and prove that what the defendant said
Speaker 3: was not only false, but it was knowingly false, that
Speaker 3: they knew at the time they were making it it
Speaker 3: was an untruth, and then they also have to show
Speaker 3: that it was a material untruth. That's why we see
Speaker 3: very few of these types of cases brought, and very
Speaker 3: few of the cases are successful.
Speaker 2: Might be even offer in this case because it's based
Speaker 2: on Senator Cruz summarizing prior testimony. Add to that, a
Speaker 2: twenty eighteen Inspector General's report found that Comy's deputy Andy
Speaker 2: McCabe made multiple false or misleading statements and credited Comy's
Speaker 2: version of the conversation over McCabe's.
Speaker 3: The charges heres focused specifically on questions asked by Senator
Speaker 3: Ted Cruz about testimony that Comy gave in twenty seventeen
Speaker 3: asserting that he did not authorize leaking information regarding the
Speaker 3: FBI's investigations into then President Donald Trump or former Secretary
Speaker 3: of State Hillary Clinton. Comy testified unequivocally to Senator Cruz.
Speaker 3: I stand by that testimony. Interestingly, Comy's deputy, Andrew McCabe,
Speaker 3: has said that Comy authorized him to leak the information
Speaker 3: to the press. According to a twenty eighteen Justice Department
Speaker 3: Inspector General report, Now, when the Inspector General looked into
Speaker 3: this issue, and he looked at the testimony of James
Speaker 3: Comy and compared that to Andrew McCabe, they are directly
Speaker 3: in conflict with one another. And so the Inspector General
Speaker 3: had to look at the credibility of each of those
Speaker 3: speakers and look at the rest of the information that
Speaker 3: was available to make a determination as to who it
Speaker 3: believed was telling the truth. In that case, the Inspector
Speaker 3: General actually found that mister Comy's testimony.
Speaker 1: Was more incredible.
Speaker 3: They found the Cave's testimony not credible. In fact, it
Speaker 3: concluded in that report the overwhelming weight of evidence supported
Speaker 3: Comy's version of the conversation and not McCabe. So at
Speaker 3: the end of the day, here you've got a he said,
Speaker 3: he said situation where two people are giving contradictory evidence
Speaker 3: as to whether or not a conversation took place. And
Speaker 3: those cases are very difficult to prove, because, again, the
Speaker 3: standard of proof in any criminal case is beyond a
Speaker 3: reasonable doubt. And when you've got two witnesses give testimony
Speaker 3: that's directly contradictory to one another, it's difficult to prove
Speaker 3: that one of them is absolutely true and the other
Speaker 3: is absolutely false. And in this case, it is compounded
Speaker 3: by the fact that the Inspector General looked at this
Speaker 3: very same issue and the inspector General's report ultimately concluded
Speaker 3: that it was Komy who was more credible and the
Speaker 3: Cabe had not been truthful to the Inspector General during
Speaker 3: that investigation.
Speaker 2: Komy could raise a defense of vindictive or selective prosecution.
Speaker 2: I know it's a high bar, but here you have
Speaker 2: the President of the United States in writing demanding that
Speaker 2: the Attorney General indict Komy, and a few days later,
Speaker 2: after turmoil in the US Attorney's office, he's indicted, and
Speaker 2: President Trump again in writing celebrates that it's.
Speaker 3: Really difficult to say exactly how much of this collateral
Speaker 3: evidence will be admitted and considered by the judge, because
Speaker 3: because none of this has really ever happened before, there
Speaker 3: was clearly pressure brought to bear on the Attorney General
Speaker 3: to bring this case. Ultimately, the acting US Attorney in
Speaker 3: the Eastern District of Virginia presented this case to a
Speaker 3: grand jury, and a majority of the grand jurors voted
Speaker 3: in favor of two of the three counts. Probably that
Speaker 3: will then mean that this case will proceed to trial.
Speaker 3: Although I think we can expect the defense to raise
Speaker 3: the fact that there was this outside pressure, and whether
Speaker 3: or not a judge will consider that, I think we'll
Speaker 3: have to wait and see. The problem with that defense
Speaker 3: is that it would essentially turn the US Attorney and
Speaker 3: others inside the Justice Department into witnesses as to what
Speaker 3: actually motivated their desire to present this case. So, while
Speaker 3: I think the optics of that are favorable to the defense,
Speaker 3: I'm not sure that a judge will eventually want to
Speaker 3: go down that road. The judge will more likely focus
Speaker 3: on the evidence itself and listen to the various defenses
Speaker 3: that James Comey's lawyers bring at trial.
Speaker 2: So you think this will get to trial, it won't
Speaker 2: be dismissed beforehand.
Speaker 3: Well, again, it's hard to say, but I can tell
Speaker 3: you that it's exceedingly rare for a federal criminal indictment
Speaker 3: to be dismissed on a motion to dismiss basis. In
Speaker 3: other words, what a judge has to do is look
Speaker 3: at the face of the indictment and decides that, based
Speaker 3: upon the allegations in the indictment and based upon the
Speaker 3: evidence that the government has.
Speaker 1: No reasonable jury could convict.
Speaker 3: Now, it's possible in this case that a judge might
Speaker 3: do that, but again, the facts here are so unusual
Speaker 3: that I think it's very difficult to predict what a
Speaker 3: judge is going to do. So the defense actually has
Speaker 3: multiple opportunities to try to derail this case. They'll certainly
Speaker 3: move to dismiss the indictment on the basis of some
Speaker 3: kind of improper pressure or impropriety for the grand jury.
Speaker 3: They'll try to allege that there's not sufficient evidence to
Speaker 3: let this case even.
Speaker 1: Proceed to trial.
Speaker 3: If it gets past that stage, which it likely will,
Speaker 3: they then have another opportunity to move to dismiss at
Speaker 3: the close of the government's case, arguing that no reasonable
Speaker 3: jury could convict based upon the evidence that was presented.
Speaker 3: And then the defense can argue again at the close
Speaker 3: of the trial that it should not even go to
Speaker 3: the jury because no reasonable jury could convict based upon
Speaker 3: the evidence. And then there's one last opportunity for the defense.
Speaker 3: Even after the case goes to the jury. In the
Speaker 3: event that the jury convicts, they can argue to the
Speaker 3: judge that, despite the fact that the jury returned to
Speaker 3: conviction here, that the evidence was legally insufficient, and the
Speaker 3: judge actually has the opportunity to overturn the jury's decision.
Speaker 2: And what about the effect on the Justice Department of
Speaker 2: bringing a high profile case like this under pressure and
Speaker 2: despite the reservations of career prosecutors.
Speaker 3: Well, I can tell you that political prosecutions and US
Speaker 3: Attorney's offices around the country are run by separate groups
Speaker 3: within the office prosecutors who specialize in political corruption, and
Speaker 3: when those cases are brought against elected officials or former
Speaker 3: elected officials, they receive the highest degree of scrutiny. In
Speaker 3: other words, the weight of the evidence and the propriety
Speaker 3: the charges are reviewed. Not only within the US Attorney's office,
Speaker 3: but also by officials in main Justice. It gets a
Speaker 3: lot of eyes looking at it, a lot of career
Speaker 3: prosecutors looking at it and weighing in on whether or
Speaker 3: not to proceed. And that's done because prosecutors know that
Speaker 3: these types of cases elected government officials, high level appointed
Speaker 3: government officials, these are high stakes, high profile cases, and
Speaker 3: if they're going to be brought, prosecutors want to make
Speaker 3: sure that they're going to win because every time the
Speaker 3: case is brought against a high level elected official or
Speaker 3: former elected official, or former high ranking government official, if
Speaker 3: the prosecution does not come back with a conviction, it
Speaker 3: damages the reputation of the department and can have repercussions
Speaker 3: about future cases. Because bear in mind that all these decisions,
Speaker 3: at the end of the day in any criminal case
Speaker 3: are made by jurors. These are everyday people, and if
Speaker 3: there is a general perception out there that the Department
Speaker 3: of Justice is overreaching and bringing cases that it shouldn't
Speaker 3: be reaching, jurors may become more skeptical of these cases
Speaker 3: in the future. Historically, when an assistant US attorney stands
Speaker 3: before a jury, they bring a certain amount of credibility
Speaker 3: with them. They bring years and years of a reputation
Speaker 3: of the Department of Justice of bringing cases that are
Speaker 3: supported not only by the law but by the facts.
Speaker 3: And so there is quite frankly, a certain amount of
Speaker 3: deference that jurors often give to the government and that
Speaker 3: judges often give to the government. Will have to see
Speaker 3: if this type of external pressure begins to erode that trust,
Speaker 3: because that can have an effect on other cases that
Speaker 3: are being brought by the Department of Justice in the future.
Speaker 2: And this is just the beginning of a long process.
Speaker 2: Thanks so much, Bob. That's Robert Mince of Macarter and English.
Speaker 2: I'm June Gross. So when you're listening to Bloomberg. President
Speaker 2: Donald Trump has long criticized wind power, claiming it's expensive
Speaker 2: and unreliable, and that massive wind turbans are unsightly, kill birds,
Speaker 2: cause cancer, and drive whales crazy. Wind is the most
Speaker 2: expensive form of energy, and it destroys the beauty of
Speaker 2: your fields and your planes, and your and your waterways.
Speaker 3: And Darling, I want to watch Trump and television tonight,
Speaker 3: but the wind stop blowing and I can't watch.
Speaker 2: There's no electricity in the house.
Speaker 3: Darling, you want to see a bird cemetery. Go under
Speaker 3: a windmill sometime you'll see the status.
Speaker 2: And since returning to office, Trump has launched an attack
Speaker 2: on wind power. His administration has stopped construction on major
Speaker 2: offshore wind farms, revoked wind energy permits, cancel plans to
Speaker 2: use large areas of federal waters for new offshore wind development,
Speaker 2: and stop nearly seven hundred million dollars in federal funding
Speaker 2: for a dozen offshore wind projects. But on Monday, a
Speaker 2: major wind for wind energy DC Federal Judge Royce Lamberth
Speaker 2: rule that work can resume on construction of a nearly
Speaker 2: completed wind farm off the coast of Rhode Island, and
Speaker 2: that the Trump administrations stop work order violated federal law
Speaker 2: because it was arbitrary and capricious following years of planning
Speaker 2: and coordination with the US government. My guest is environmental
Speaker 2: law expert Pat Parento, a professor at the Vermont Law
Speaker 2: and Graduate School. Pat tell us about this wind farm
Speaker 2: off the coast of Rhode Island that's eighty percent complete.
Speaker 1: Correct, It's a six billion dollar wind farm, would be
Speaker 1: the largest in the United States. It's funded primarily by
Speaker 1: a Danish firm or stead, So you know you're talking
Speaker 1: about six billion dollars of investment in American energy supply,
Speaker 1: and there was over twelve hundred jobs associated with it,
Speaker 1: and the stop work order that the Department of Interior
Speaker 1: issued threw those people out of work immediately. So yeah,
Speaker 1: it's eighty percent complete. They need to install twenty turbans
Speaker 1: to finish it, and they need to do it quickly
Speaker 1: because the supply chain for getting the turbines here and
Speaker 1: assembled and installed. You know, they're raising the cal it's
Speaker 1: a clock for weather, and it's a clock for getting
Speaker 1: the kind of support you need to get these turbines installed.
Speaker 3: Right.
Speaker 1: So this project is designed to serve three hundred and
Speaker 1: fifty thousand home it's huge, it's fourteen hundred megawat and
Speaker 1: it's also critical to the New England energy supply going forward.
Speaker 1: So you know this project and Cape Wind is another
Speaker 1: major offshore wind farm that was on the books but
Speaker 1: now it's installed by Trump as well. So these two
Speaker 1: wind projects are critical to supplying electricity in New England.
Speaker 1: And of course electricity demands are going up in large
Speaker 1: part in response to the AI build out and the big,
Speaker 1: huge data centers that are stucking up so much energy.
Speaker 1: It's also designed to lower electricity bills because the biggest
Speaker 1: electricity demand is peak demand in the winter for heating,
Speaker 1: and right now New England is relying very heavily on gas,
Speaker 1: and you know, gas prices are incredibly volatile. So the
Speaker 1: estimate is that this project alone would reduce electricity bills
Speaker 1: in New England by five hundred million dollars. So, you know,
Speaker 1: it's crazy because you've got a project supplying energy that's needed,
Speaker 1: lowering energy prices, providing stability, and the Trump administration comes
Speaker 1: along and issues this stopped work order, throws people out
Speaker 1: of work, and now Judge Lambert has said, no, you
Speaker 1: can't do that.
Speaker 2: In stopping the project, the Trump administration cited national security concerns.
Speaker 2: What national security concerns?
Speaker 1: Yeah, well, you know it was a Secretary Bergham, Interior Secretary,
Speaker 1: who said it has to do with cybersecurity, and there's
Speaker 1: a concern about whether there would be undersea drone attacks
Speaker 1: because of course you have to monitor not only the
Speaker 1: operation of the turbines, but the fact that you've got
Speaker 1: to get the electricity on shore. The point is that
Speaker 1: the Department of Defense has already approved the system that
Speaker 1: they're going to be using to monitor all this stuff.
Speaker 1: So this national security excuse is illegitimate. I mean, if
Speaker 1: there is really a national security issue, what exactly is it?
Speaker 1: Why was that evidence not introduced before Judge Lambert? And
Speaker 1: it wasn't.
Speaker 2: The company claimed that the Trump administration violated a constitutional
Speaker 2: right to do process and that the stop work order
Speaker 2: was arbitrary and capricious. So tell us what the judge decided.
Speaker 1: So Clambert said it was the height of arbitrary and
Speaker 1: capricious action. In other words, there was no evidence introduced
Speaker 1: to suggest that there really was a national security problem.
Speaker 1: There was no evidence introduced that the company is in
Speaker 1: violation of any environmental or regulatory requirement. This project has
Speaker 1: been through ten years of analysis. I mean, in other respects,
Speaker 1: the Trump administration is going crazy over the delays and
Speaker 1: energy projects from environmental reviews and regulatory requirements. Well, this
Speaker 1: project's been through ten years of it. So there's no
Speaker 1: issue here, no legitimate issue for why this project shouldn't
Speaker 1: be completed and come online.
Speaker 2: The Trump administration usually appeals every federal district court's order
Speaker 2: that goes against them. Do you think the project can
Speaker 2: be completed before an appellate court or the Supreme Court intervenes.
Speaker 1: I mean, I would have expected to have seen an
Speaker 1: announcement from the Trump administration that they were going to appeal,
Speaker 1: but they haven't. So that suggests to me that perhaps
Speaker 1: they've rethought this, and at least as regards this project,
Speaker 1: they're willing to back off and let it go forward.
Speaker 1: I can't be sure of that, obviously, I wouldn't take
Speaker 1: that to the bank necessarily, but it may be that,
Speaker 1: at least on this one, they'll let it go.
Speaker 2: Recently, the Trump administration has move to invalidate or reconsider
Speaker 2: permits for other wind projects near Massachusetts that have yet
Speaker 2: to start construction. Two weeks ago, they asked a court
Speaker 2: to cancel the approval of a six billion dollar wind
Speaker 2: project planned off Maryland's coast. I mean, are they targeting
Speaker 2: all of these wind projects?
Speaker 3: Oh?
Speaker 1: Yes, they are definitely, not just wind but solar as well.
Speaker 1: So it's across the board, though, and Bergham and the
Speaker 1: Department of Energy are under orders executive orders from the
Speaker 1: President to oppose renewable energy development. If there truly was
Speaker 1: an energy emergency, why on earth would you stop projects
Speaker 1: that are you know, not only in the pipeline, but
Speaker 1: under construction and for which money is coming in from
Speaker 1: outside the United States to build them, you know, in
Speaker 1: electric vehicle plants in Georgia coming from South Korea, et cetera.
Speaker 1: So this war on renewables makes no sense.
Speaker 2: And so in light of all that, how how big
Speaker 2: a win is Judge Lamberth's decision.
Speaker 1: Oh, I think it's a huge win for not only
Speaker 1: this project, but the other projects you mentioned that are
Speaker 1: on the books for New England. I don't know whether
Speaker 1: it will revive all of them or not, but this
Speaker 1: would be the first order coming from a federal judge
Speaker 1: saying to the Trump administration, you simply can't do this.
Speaker 1: It's certainly granting them a stay of execution.
Speaker 2: According to Bloomberg analysis, altogether, more than fifteen thousand prospective
Speaker 2: and current jobs tied to win projects in New England
Speaker 2: are under threat from the potential shutdowns, and there are
Speaker 2: all kinds of other effects. For example, you know, Massachusetts
Speaker 2: has a state organization has spent more than twenty million
Speaker 2: in total offshore wind job training program. So the ramifications
Speaker 2: are widespread.
Speaker 1: Yes, they are for jobs, for investment, for lowering electricity bills,
Speaker 1: for making energy more affordable for American consumers right down
Speaker 1: the line. Never mind climate, never mind you know, environmental
Speaker 1: impacts of energy development. If you think about gas, right,
Speaker 1: where does the gas come from? Well, some of it
Speaker 1: comes from the Marcella's shale in Pennsylvania, in Maryland, but
Speaker 1: a lot of it comes from Ohio and further west,
Speaker 1: and that's got to get there by pipeline. So you've
Speaker 1: got to build all of this infrastructure, which is very expensive,
Speaker 1: and then you've got to hope that gas prices remain stable,
Speaker 1: which they don't. They're incredibly volatile because we're exporting a
Speaker 1: lot of the gas. That's another priority of the administration.
Speaker 1: They don't want to just produce the gas for a
Speaker 1: US consumption, They want to produce it to send it overseas.
Speaker 1: So all of these factors really support the idea if
Speaker 1: you want to have a mixed energy portfolio. You know
Speaker 1: a lot of us are concerned about over reliance on
Speaker 1: gas and certainly coal and oil. But the point is
Speaker 1: you can have all of those different in green to
Speaker 1: a sensible energy policy. But that's not what we have.
Speaker 1: We have a single minded determination to build as much
Speaker 1: gas and revive the coal industry. That's going to drive
Speaker 1: up consumer prices. Never mind the environmental impacts.
Speaker 2: Ken what the Trump administration is doing here with wind
Speaker 2: and solar power be unwound if the next administration supports
Speaker 2: renewable energy.
Speaker 1: You know, one of the biggest problems is if you
Speaker 1: discourage this investment, you discourage the banks in the United
Speaker 1: States and elsewhere around the world. Some of the other
Speaker 1: banks around the world have even more money to invest.
Speaker 1: You know, if you're a discouraging investment in energy supply,
Speaker 1: that is going to have long term impacts for sure.
Speaker 1: Whether or not that can be turned around is an
Speaker 1: open question. But right now the evidence is that we're
Speaker 1: not only not building systems that we need, but we're
Speaker 1: discouraging people from investing in those and.
Speaker 2: Pat what's the landscape for future legal actions as far
Speaker 2: as wind farms are concerned.
Speaker 1: The Trump administration is reviewing permit plans for other wind farms,
Speaker 1: and so the first step is going to be what's
Speaker 1: the result of that review. Are they going to pull
Speaker 1: back and cancel leases, Are they going to cancel permits?
Speaker 1: Are they going to try to stop these projects through
Speaker 1: that mechanism?
Speaker 3: Right?
Speaker 1: And then of course people will sue, and if those
Speaker 1: kinds of cases get to court, depending on what the
Speaker 1: administration has actually ruled or said about them, then you're
Speaker 1: going to get into questions about can you really stop
Speaker 1: these projects? Can you really cancel these leases or permits?
Speaker 1: You know, those are all questions in the future, and
Speaker 1: until we see exactly what Trump's going to do case
Speaker 1: by case, project by project, we won't be able to say.
Speaker 2: And with all the litigation that's probably ahead, does the
Speaker 2: Justice Department still have experienced environmental litigators in place? I
Speaker 2: know there's been a lot of shuffling and moving lawyers
Speaker 2: to areas that they're not familiar with, like immigration, and
Speaker 2: because of that, a lot of lawyers have also left.
Speaker 1: They have fired or reassigned some of the senior lawyers
Speaker 1: in the Department of Justice in the Environmental Division. If
Speaker 1: they're bringing people in to the Department of Justice that
Speaker 1: don't have deep experience in these very complicated environmental laws.
Speaker 1: If you think about the Outer Continental Shelf, you know,
Speaker 1: there's a long history of incredibly dense law that governs
Speaker 1: what happens on the outer Continental shelf. And then you
Speaker 1: layer on all the other laws, the Endangered Species Act,
Speaker 1: the Marine Mammal Protection Act and this Magdison Stevens Sustainable
Speaker 1: Fisheries Act. So you're talking about an incredible complex of
Speaker 1: federal law that has a very long history back to
Speaker 1: there in some cases beyond the seventies when we saw
Speaker 1: all the environmental legislation being passed it by Congress. So
Speaker 1: you know, you just can't drop lawyers into the middle
Speaker 1: of something like that and expect them to really know
Speaker 1: their way around these blogs.
Speaker 2: It's not an easy area of the law to litigate.
Speaker 2: Thanks so much, Pat. That's Professor Pat Parento of the
Speaker 2: Vermont Law and Graduate School. US Attorney General Pam Bondi
Speaker 2: threatened to go after hate speech on a podcast last week.
Speaker 1: We will absolutely target you, go after you if you
Speaker 1: are targeting anyone with hate speech.
Speaker 2: Bondy was wrong. Hate speech is not a crime. In fact,
Speaker 2: hate speech is free speech protected by the First Amendment.
Speaker 2: Just ask the Supreme Court. Conservative Justice Samuel Alito wrote
Speaker 2: in twenty seventeen, quote, the proudest boast of our free
Speaker 2: speech jurisprudence is that we protect the freedom to express
Speaker 2: the thought that we hate. Bondi's remarks to criticism from
Speaker 2: across the political spectrum and she tried to walk them
Speaker 2: back with some confusing posts on X joining me is
Speaker 2: First Amendment expert Timothy Zick, a professor at William and
Speaker 2: Mary Law School, Tim can you define hate speech for US?
Speaker 4: Well, it doesn't have a definition in US law or
Speaker 4: First Amendment or prudence. There's no category of hate speech
Speaker 4: that is unprotected under the First Amendment. That's in contrast
Speaker 4: to European countries and other countries that do have the
Speaker 4: statutory prescriptions on speech that derrigates or criticizes people based
Speaker 4: on gender or race or some other protected characteristic. But
Speaker 4: if the Attorney General should know, in the United States
Speaker 4: in general, hate speech is not criminally prescribable.
Speaker 2: The Supreme Court has protected hate speech in more than
Speaker 2: one case. The one that stands out in my mind
Speaker 2: is Brandenburg versus Ohio, the case involving the Nazi Party
Speaker 2: marching in Skokie, Illinois, in nineteen seventy seven.
Speaker 4: Well, the Supreme Court and others has come down on
Speaker 4: the side of freedom of expression right in the sense
Speaker 4: that the government cannot criminalize or otherwise punish the expression
Speaker 4: of viewpoints, even if those viewpoints are offensive or vile
Speaker 4: or derogatory. Right so even speach in supportive Nazism, this
Speaker 4: is a general matter protected speech. Speech that offends people
Speaker 4: based on race, or gender or sexual orientation, that's also
Speaker 4: protected speech. And the Supreme Court has been consistent in
Speaker 4: drawing that line where it has in the sense that
Speaker 4: you know, whether it's Nazis marching in Skoki, that case reached,
Speaker 4: the Supreme Court is that decided. Look, the town of
Speaker 4: Skokey cannot enact all these ordinances to try and prevent
Speaker 4: Nazis from marching or displaying Nazi regalia. The Supreme Court
Speaker 4: protects viewpoints even if they're vile. There are some narrow exceptions, right,
Speaker 4: If you threaten another person to fothering injoy your death,
Speaker 4: if you incite other people to auge and imminent unlawful
Speaker 4: activity that's likely to occur, those sorts of things are
Speaker 4: not protected. The government cannot have the power to tell
Speaker 4: an audience in the United States what speech is appropriate
Speaker 4: or too offensive to be heard.
Speaker 2: But the Court has recognized an exception to the First
Speaker 2: Amendment for threats of violence. How are they defined?
Speaker 4: That's a narrow exception to First Amendment protection. Right, So
Speaker 4: if you communicate what the Court is defined as a
Speaker 4: serious expression of an intent to inflict bodily harm or
Speaker 4: death on the person. Then you can be punished for
Speaker 4: that kind of speech. But the narrowness here is, you know,
Speaker 4: it has to be a serious expression. It can't be
Speaker 4: something said in jets. It can't be hyperbolic language where
Speaker 4: you say, well this person should be hung for their crimes,
Speaker 4: that sort of thing. It has to be more directed,
Speaker 4: more specific, And as the Supreme Court has recently said,
Speaker 4: uttered recklessly that you know, there's a risk when you
Speaker 4: say the word that a person will perceive what you're
Speaker 4: saying is threatening. But you say it anyway. So it's
Speaker 4: not just threatening language. That's not unprotected speech. It's something
Speaker 4: far more specific than that. And when the Attorney General said, well,
Speaker 4: what I meant to say it wasn't hate speech, really,
Speaker 4: it was threat Well, none of the speech that we've
Speaker 4: been talking about since Charlie Kirk's assassination, you know, constitutes threats.
Speaker 4: Right when you praise or celebrate someone's death, that's not
Speaker 4: a threat. So you know, she got it wrong twice. Essentially.
Speaker 2: She also said in her explanation, you can't call for
Speaker 2: someone's murder. You cannot swat a member of Congress. You
Speaker 2: cannot dos a conservative family and think it will be
Speaker 2: brushed off as free speech. These acts are punishable crimes,
Speaker 2: and every single threat will be met with the full
Speaker 2: force of the law. Are all the things she mentioned punishable.
Speaker 4: Well, some of them are protected, right. It depends on
Speaker 4: the sort of statute that you're looking at, you know,
Speaker 4: how narrowly it's defining harassment. For example, sample or threat.
Speaker 4: Calling for the murder of someone is not incitement. It
Speaker 4: is not a threat.
Speaker 3: Right.
Speaker 4: I wish you know so and so would die. Is
Speaker 4: a terrible thing to think and a terrible thing to say,
Speaker 4: but it's not unprotected expression under our First Amendment doctrines
Speaker 4: and jurisprudence. Yes, there's conduct that you can go after.
Speaker 4: If I repeatedly harass someone, whether it's online or offline,
Speaker 4: then that can rise to the level of harassment. But
Speaker 4: there I'm not being punished for my expression. I'm being
Speaker 4: punished for the act of repetitious harassment of another. And
Speaker 4: docting is difficult, right, because just publishing information about, say,
Speaker 4: where someone lives, is not necessarily unprotected speech.
Speaker 2: Right.
Speaker 4: A lot depends on the contact. And again they said
Speaker 4: it's statute under which you're reviewing it.
Speaker 2: And wasn't there a Supreme Court case a few years
Speaker 2: ago involving threats on the internet.
Speaker 4: Counterman versus Colorado. Yeah, that was this very recent threats
Speaker 4: case the Supreme Court handed down. There was a singer
Speaker 4: who had some uninvited online messages. Tried to block the
Speaker 4: person from contacting her. He just opened new accounts and
Speaker 4: kept contacting her, And eventually this person was prosecuted for
Speaker 4: form of harassments. But the court below and then the
Speaker 4: Supreme Court treated it as raising the question of whether
Speaker 4: this person had communicated what it called true threats as
Speaker 4: I described earlier, serious expressions of an intent to cause
Speaker 4: bodily injury or death to another. And what the court
Speaker 4: was wrestling with in that piece was a mental state
Speaker 4: required for the speaker, and a number of courts before
Speaker 4: that had sort of adopted this subjective test. Well, if
Speaker 4: I'm the audience for that speech and I perceived it
Speaker 4: subjectively as threatening, that should be enough. And the court
Speaker 4: was worried, well, that's not speech protective enough. That's going
Speaker 4: to cause misunderstandings to be translated into criminalized threat. We
Speaker 4: don't want that, But we also don't want a sort
Speaker 4: of lower standard. So let's find something in the middle
Speaker 4: for a goldilock standard, and they settle on recklessness. If
Speaker 4: the person knows of a substantial risk that the person
Speaker 4: he is communicating with is when it perceives the speech
Speaker 4: is threatening, then that's the kind of recklessness that the
Speaker 4: First Amendment requires before you label something a true threat.
Speaker 2: So you have the Attorney General's remarks, you have Todd Blanche,
Speaker 2: the Deputy Attorney General, saying that people protesting at a
Speaker 2: restaurant while Trump was having dinner might have committed a crime.
Speaker 2: And you have President Trump's statements, including saying to an
Speaker 2: ABC reporter, will probably go after people like you because
Speaker 2: you treat me so unfairly. It's hate. Why is there
Speaker 2: this fundamental misunderstanding of hate speech.
Speaker 4: Well, I don't know if it's a misunderstanding. I mean,
Speaker 4: it's just been sort of President Trump's a longstanding position, right,
Speaker 4: He either doesn't understand or doesn't appreciate freedom of expression.
Speaker 4: So his view is that negative press isn't protected. You
Speaker 4: can pull the broadcast license of a broadcaster that publishes
Speaker 4: critical coverage of him. It's consistently negative right. That, of course,
Speaker 4: is contrary to the First Amendment. Going after your political
Speaker 4: enemies for things that they say is part of the
Speaker 4: sort of Trump mantra, but it is unconstitutional. And you know,
Speaker 4: what's interesting to me is recently people have said, oh,
Speaker 4: we've crossed some line here where the president is threatening
Speaker 4: retribution into this political enemy. We are nine months into
Speaker 4: a retribution campaign. It's gotten louder, but it's been there
Speaker 4: the whole time. I mean, they've gone after law firms,
Speaker 4: international students, the American Bar Association, and plenty of others
Speaker 4: up to this point. What's different is it's more explicit,
Speaker 4: I suppose one could say, and the drumbeat is getting louder.
Speaker 4: We're going to go after particularly so called left leaning
Speaker 4: speakers or organizations who say things that we don't like,
Speaker 4: and the First Amendment stands in complete opposition to that position.
Speaker 4: So what's changed. I mean, the Kirk assassination horrific event,
Speaker 4: bound to create, you know, sort of churn and backlash,
Speaker 4: but the administration's answer to that has been again, we're
Speaker 4: going to go after the left so called and we're
Speaker 4: going to punish speakers who say nasty things about Charlie
Speaker 4: Kirk or you know, about President Trump and the First
Speaker 4: Amendment just simply doesn't allow them to do that.
Speaker 2: Across the country, people from teachers to airline pilots to
Speaker 2: healthcare workers have been fired, suspended, or disciplined over remarks,
Speaker 2: particularly social media posts about Charlie Kirk and Vice President J. D.
Speaker 2: Vance encouraged reporting these remarks to people's employers.
Speaker 3: So when you see someone celebrating Charlie's murder, call them
Speaker 3: out in hell, call their employer.
Speaker 4: We don't believe in political violence, but we do believe
Speaker 4: in civility.
Speaker 2: Explain why the First Amendment doesn't protect private employees.
Speaker 4: The rules are different for private and government speakers. Right,
Speaker 4: So if you're talking about a private employee and at
Speaker 4: will employee who can be dismissed for any reason, at
Speaker 4: all or no reason, then they can be dismissed or
Speaker 4: speech that they publish or communicate. There are only a
Speaker 4: few states where you get some statutory protection for political speech,
Speaker 4: but in general, you speak at your peril. With respect
Speaker 4: to private employment, public employment is very different. Public employees
Speaker 4: retain some First Amendment right as citizens to speak on
Speaker 4: newsworthy matters, which certainly covers the speech that has been
Speaker 4: sort of debated post to Charlie Kirks murder, and it's complicated.
Speaker 4: So if you're a public employee and you say something offensive,
Speaker 4: Let's say you praise Charlie Kirks murder and you're university professor,
Speaker 4: and your employer says, well, I'm going to terminate your employment. Well,
Speaker 4: putting aside the ten year and academic freedom problems there,
Speaker 4: as a public employee, you have a First Amendment right
Speaker 4: to communicate that, but the Supreme Court has said what
Speaker 4: you get as a public employee if you speak on
Speaker 4: matters of public concerns, is a balance. We're going to
Speaker 4: balance your right to speak against the employer's interest in
Speaker 4: efficient operations. So across a range of public employment, what
Speaker 4: you might find in some cases is that courts will
Speaker 4: side with the employer. What you said was so offensive
Speaker 4: it created disruption in the workplace, and we're not required
Speaker 4: to tolerate that. So it can be complicated to respect
Speaker 4: the public employment, but it's much simpler with regard to private.
Speaker 2: Do you think a hate speech case will reach the
Speaker 2: Supreme Court?
Speaker 4: It's not clear yet what the administration intends to do
Speaker 4: with respect to so called hate speech investigations or prosecutions.
Speaker 4: Mostly what they're doing is threatening to investigate people for
Speaker 4: core political speech. So we wouldn't even be taught talking
Speaker 4: about hate speech. It would be more you know, I'm
Speaker 4: going to go after George Sorows organization because it supports
Speaker 4: left wing positions or its funds left wing political activist
Speaker 4: and what's clearly unconstitutional. I don't even know if the
Speaker 4: Supreme Court would be interested in a case like that.
Speaker 4: I'm assuming a lower court would say that's unconstitutional. But
Speaker 4: there are cases in the First Amendment realm that may
Speaker 4: make it to the Court, some of them involving maybe
Speaker 4: the rights of non citizens under the First Amendment, which
Speaker 4: the Court has been unclear about. I may want to
Speaker 4: clarify that. Some of the university cases, the Harvard case,
Speaker 4: for example, where the administration is terminating funds the university
Speaker 4: says based on their speech, maybe there'll be a press
Speaker 4: case involving a broadcast license or something like that. I
Speaker 4: can imagine the Court being interested in those cases.
Speaker 2: Thanks so much, Tim. That's Professor Timothy Zick of William
Speaker 2: and Mary Law School. And that's it for this edition
Speaker 2: of The Bloomberg Law Show. Remember you can always get
Speaker 2: the latest legal news on our Bloomberg Law Podcast. You
Speaker 2: can find them on Apple Podcasts, Spotify, and at www
Speaker 2: dot bloomberg dot com slash podcast, slash Law, and remember
Speaker 2: to tune into The Bloomberg Law Show every weeknight at
Speaker 2: ten pm Wall Street Time. I'm June Grosso and you're
Speaker 2: listening to Bloomberg