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

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Speaker 2: This Trump Supreme Court just throughout the protections that were

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Speaker 2: earned by the Civil rights movement, those who bled, who fought,

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Speaker 2: and who died so that people might have a voice.

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Speaker 1: The Voting Rights Act is considered the crown jewel of

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Speaker 1: the civil rights movement, and on Wednesday, the Supreme Court's

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Speaker 1: conservatives took a wrecking ball to what was left of

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Speaker 1: the landmark law, after having weakened it twice before. Democratic

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Speaker 1: Senator Raphael Warnock said the decision is a huge step

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Speaker 1: backwards for racial justice.

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Speaker 2: Make no mistake, this ruling hearkens back to the darkest

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Speaker 2: days of the Jim Crow era.

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Speaker 1: The Court severely limited the use of the Voting Rights Act,

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Speaker 1: making it difficult, if not in possible, for minorities to

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Speaker 1: challenge electoral maps as racially discriminatory. It was a six

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Speaker 1: to three vote, with Republican appointed justices in the majority

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Speaker 1: and Democratic appointed justices in dissent, in a decision that

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Speaker 1: Buttress's Republican efforts to keep control of the House in

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Speaker 1: this year's midterms and beyond. My guest is one of

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Speaker 1: the country's leading authorities on election law. Richard Hassen, a

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Speaker 1: professor at UCLA Law School, Rick, how would you characterize

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Speaker 1: this decision? Is it a game changer?

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Speaker 3: This is an earthquake. It is one of the most

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Speaker 3: significant decisions regarding elections that the Supreme Court has ever issued.

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Speaker 1: Tell us why so.

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Speaker 3: When Congress initially passed the Voter Rights Act in nineteen

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Speaker 3: sixty five, it did things like assure that black voters

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Speaker 3: in the South would be able to register to vote,

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Speaker 3: But it didn't you anything about the lack of political

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Speaker 3: power that black voters would have even when they do vote,

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Speaker 3: especially in situations where white voters and minority voters prefer

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Speaker 3: different candidates. In nineteen eighty two, Congress responded to that

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Speaker 3: by amending Section two of the Voting Rights Act to

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Speaker 3: provide that when white voters and minority voters prefer different candidates,

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Speaker 3: and it's possible to draw a district where minority voters

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Speaker 3: can elect their candadive choice, under some circumstances, states have

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Speaker 3: to do that, and from nineteen eighty six the understanding

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Speaker 3: was that this is what Section two required. What Justice

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Speaker 3: Alito did in his opinion is essentially eviscerate Section two

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Speaker 3: of the Voting Rights Act. Although he claims not to

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Speaker 3: overrule the test that's been in place since nineteen eighty six,

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Speaker 3: the so called Jingles test, he does that, and he

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Speaker 3: imposes a test that will be virtually impossible for minority

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Speaker 3: voters to win. This is going to lead to many

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Speaker 3: more legislative bodies where there will be only or mostly

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Speaker 3: white representatives, and minority voters will not have of fair

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Speaker 3: representation in Congress, in state legislatures, and in local bodies

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Speaker 3: like city councils and school boards.

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Speaker 1: I mean, how did Justice Alito explain? What was his reasoning?

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Speaker 3: So, what Justice Alito did was say that race consciousness

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Speaker 3: in law is a potential violation of the Constitution. The

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Speaker 3: Constitution requires a kind of race blindness when it comes

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Speaker 3: to elections and comes to other areas, and so in

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Speaker 3: order to keep the voting rights at constitutional he had

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Speaker 3: to reconceptualize it to change the standards. What he says

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Speaker 3: is that when a group of Minori voters wants to

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Speaker 3: show a claim under Section two, they've got to show

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Speaker 3: that if say a computer algorithm was drawing districts by chance,

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Speaker 3: they would have had a chance to have this district

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Speaker 3: drawn to give them the opportunity to elect a canadive choice.

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Speaker 3: You can't be race conscious and drawing districts. That is

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Speaker 3: turning the voter rights on its head. Further, he says

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Speaker 3: that states can defend the drawing of district lines that

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Speaker 3: dilute the power of minority voters by saying they're doing

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Speaker 3: it to favor their political party. So Parson Jerry managering,

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Speaker 3: far from being unconstitutional, becomes a defense to a voting

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Speaker 3: rights case, and that is profoundly ironic. It also takes

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Speaker 3: the idea that someone in Alabama could pass a law

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Speaker 3: that would favor Republicans but not favor white voters. It

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Speaker 3: just makes no sense given the tremendous overlap of race

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Speaker 3: and party in these cases.

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Speaker 1: Alito, I understand when he was reading parts of his

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Speaker 1: decision from the bench, said basically, don't listen to the descent.

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Speaker 1: This is not really a big deal. I mean, why

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Speaker 1: do you think they kept the Voting Rights Act? Is

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Speaker 1: it for appearance's sake? So they could say this isn't

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Speaker 1: a big deal. Don't look here.

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Speaker 3: So in twenty twenty one, Justice Alito wrote a majority

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Speaker 3: opinion for the Court in a case called Bernovich versus DNC.

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Speaker 3: When that case came out, I said, what Justice Alito

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Speaker 3: has done is essentially this ray the Voting Rights Act

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Speaker 3: Section two as applied outside of redistricting. And since that case,

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Speaker 3: as I recounted in a recent Law Review article that

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Speaker 3: Justice Kagan cited in her descent, there has been no

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Speaker 3: successful case under section two since Bernovich outside of redistricting.

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Speaker 3: He's doing the same thing here. In Bernovich, he pretended

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Speaker 3: he wasn't overturning the Voting Rights Act, but he imposed

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Speaker 3: such a test. He doesn't want to take the political

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Speaker 3: heat for overturning the Act, but he essentially renders the

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Speaker 3: dead letter. As Justice Kagan says in her descent.

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Speaker 1: Justice Kagan said, the decision completes the Supreme Court's three

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Speaker 1: step plan to eliminate the protections of the Voting Rights

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Speaker 1: Act that started in twenty thirteen the Shelby County case.

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Speaker 1: Can you tell us about those three steps?

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Speaker 3: So there were two key parts to the Voting Rights

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Speaker 3: Act until twenty thirteen. One part, as you mentioned, is

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Speaker 3: Section five of the Act that required states with the

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Speaker 3: history of racial discrimination and voting to get federal approval

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Speaker 3: before they made changes in their voting rules, and they'd

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Speaker 3: have to show that the changes wouldn't make minority voters

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Speaker 3: worse off in Shelby County. In the John Roberts opinion,

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Speaker 3: the conservats on the Court said that the formula used

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Speaker 3: to figure out which states are covered under Section five

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Speaker 3: was outdated and therefore unconstitutional. But the majority of Shortness

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Speaker 3: don't worry. There's always Section two to protect minority voters.

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Speaker 3: Then came step two, that Bernovich case, where the Court

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Speaker 3: said Section two, outside of the context of redistricting is

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Speaker 3: essentially a dead letter. And here comes the third and

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Speaker 3: final step, which is Justice Alito in his opinion in

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Speaker 3: Calai saying, here's what Section two means. Now, essentially rendering

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Speaker 3: Section two a dead letter as it applies to redistricting.

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Speaker 3: This is going to bleach all of these legislative bodies.

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Speaker 3: It is going to make it very difficult, if not impossible,

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Speaker 3: for minority voters to win in any of these lawsuits.

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Speaker 1: Is there anything left of the Voting Rights Act?

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Speaker 3: Well, there are parts of the Voting Rights Act that survive.

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Speaker 3: For example, there's a ban on literacy tests. There are

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Speaker 3: other requirements of the Voting Rights Act. But the two

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Speaker 3: big parts of the Voting Rights Act Section two and

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Speaker 3: section five are there in a shell only, and it

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Speaker 3: is a sad day for voting rights and democracy in

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Speaker 3: the United.

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Speaker 1: States, and progressive groups have calculated that as many as

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Speaker 1: nineteen congressional districts with primarily black or Hispanic populations are

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Speaker 1: at risk.

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Speaker 3: I do want to make an important point which I

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Speaker 3: think some people are missing, which is that not only

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Speaker 3: will Republicans have an incentive to get rid of these

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Speaker 3: districts sobal democrats. Democrats will want to take their reliable

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Speaker 3: black voters and spread them out in more democratic districts,

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Speaker 3: thereby decreasing the number of Minoriti opportunity districts, but still

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Speaker 3: helping Democrats win their elections. And so I think the

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Speaker 3: real losers here are Minoriti voters and the American people overall.

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Speaker 3: If we're going to live in a multi racial democracy,

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Speaker 3: we need to have fair representation for all people.

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Speaker 1: Republicans in the South are already calling for new maps

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Speaker 1: to be drawn because of this decision. How do you

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Speaker 1: think it will affect the midterms?

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Speaker 3: It's not clear how this decision will affect the midterms

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Speaker 3: because many states have already conducted their primaries and it

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Speaker 3: would be unusual to go back and redraw lines and

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Speaker 3: require there to be a new set of primaries. But

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Speaker 3: there are some places, most importantly in Florida, where they

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Speaker 3: already right now considering a new districting plan. They can

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Speaker 3: now consider a districting plan that doesn't have to take

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Speaker 3: into account the requirement to draw districts that were thought

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Speaker 3: necessary under Section two of the Voting Rights Act. And

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Speaker 3: so in Florida and maybe a few other places where

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Speaker 3: they have not held primaries, we could see some redrawing

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Speaker 3: of district lines.

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Speaker 1: But in twenty twenty eight we may see the full

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Speaker 1: effects of this decision.

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Speaker 3: I fully expect states like Louisiana and Alabama, if they

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Speaker 3: can't get done in time for twenty twenty six, to

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Speaker 3: certainly get redistricting diluting minority voting power in time for

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Speaker 3: twenty twenty eight.

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Speaker 1: As you know, President Trump started this mid decade redistricting battle.

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Speaker 1: Does this decision affect the redistricting that's been done in Texas, Foreigna, Virginia,

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Speaker 1: et cetera. Are any of those maps affected or it

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Speaker 1: doesn't matter because they were done for partisan reasons.

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Speaker 3: Well, that's a hard question to answer, because Parson jerry

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Speaker 3: manadering is now a defense, and so that should render

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Speaker 3: maps drawn for partisan reasons immune from Section two claims.

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Speaker 3: But I should say that the Virginia maps which were

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Speaker 3: recently passed by voters may or may not survive state

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Speaker 3: court review in the Virginia Supreme Court, and so there's

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Speaker 3: still some question marks as to exactly what the lines

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Speaker 3: are going to be for the remaining primaries. In twenty

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Speaker 3: twenty six.

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Speaker 1: The Supreme Court has been accused more and more of

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Speaker 1: being political, though Chief Justice John Roberts likes to talk about,

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Speaker 1: you know, we're not politicians. Does this decision with six

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Speaker 1: Republicans on one side and the Democrats on the other,

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Speaker 1: does this make it even more political or seem even

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Speaker 1: more political?

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Speaker 3: Well, I think it's very clear that the Conservatives on

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Speaker 3: the Supreme Court are helping, whether intentionally or not, the

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Speaker 3: Republican political agenda.

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Speaker 4: I think the general mood.

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Speaker 3: Of the Supreme Court is that, you know, you can

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Speaker 3: do anything for parson advantage, and the Supreme Court is

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Speaker 3: not going to police it. And so whether the justices

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Speaker 3: honestly believe that they're simply applying jurisprudence or they are

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Speaker 3: partisan hacts, as Justice Barrett claimed, they were not, It

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Speaker 3: doesn't really matter. The effect is going to be the same,

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Speaker 3: and the effect is going to be to help the

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Speaker 3: Republican Party.

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Speaker 1: Could Congress pass a law to get around this.

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Speaker 3: Congress could pass a law revitalizing the Voting Rights Act

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Speaker 3: because this was a matter of statutory interpretation, not a

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Speaker 3: constitutional decision, and so that would dare the Supreme Court

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Speaker 3: to actually do something and strike it down again. I

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Speaker 3: think that this decision is going to lead to more

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Speaker 3: calls for Supreme Court reform because pretty clear what the

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Speaker 3: political direction of the majority of the Court is, and

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Speaker 3: it's quite a partisan direction.

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Speaker 1: You've written that this is the worst Supreme Court ruling

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Speaker 1: in a century. Explain why.

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Speaker 3: Well, when it comes to voting rights, Section two was

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Speaker 3: really revolutionary and assuring we could have a more multi

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Speaker 3: racial democracy, and the Supreme Court by churning the Reconstruction

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Speaker 3: Amendments on their head and making race consciousness, which Congress

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Speaker 3: required in Section two, something that is constitutionally suspect. What

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Speaker 3: the Court is going to do is going to change

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Speaker 3: the nature of political representation in this country, bringing us

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Speaker 3: back to a time well before the passage of the

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Speaker 3: Voting Rights Act amendments in nineteen eighty two.

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Speaker 1: It's been great having you on, Rick, Thanks so much.

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Speaker 1: That's professor Rick Hassen of UCLA Law School. Coming up next.

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Speaker 1: James Comy is indicted for a second time. I'm June

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Speaker 1: Grosso and you're listening to Bloomberg. The Justice Department has

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Speaker 1: indicted former FBI director James Comy for the second time

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Speaker 1: in seven months, this time based on an Instagram post

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Speaker 1: from a year ago of seashells on a beach arranged

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Speaker 1: in the numbers eighty six forty seven. The government claims

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Speaker 1: that amounts to a threat against President Trump, the forty

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Speaker 1: seventh president, and Trump told reporters this week that Komy's

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Speaker 1: post probably put his life in danger.

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Speaker 3: Eighty six.

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Speaker 4: You know it's a mob term for kill him.

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Speaker 1: You know, you ever see the movies eighty six the

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Speaker 1: mobster says to one of his wonderful associates eighty six

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Speaker 1: that means kill him. Komy said at the time of

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Speaker 1: the post that he assumed the numbers reflected a political message,

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Speaker 1: and he deleted the post when he learned some people

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Speaker 1: were interpreting it as a call to violence. The first

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Speaker 1: indictment against him on unrelated false statement and obstruction charges

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Speaker 1: was dismissed by a judge because the interim US attorney

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Speaker 1: had been improperly appointed. Komy says he's innocent of these

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Speaker 1: charges as well.

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Speaker 4: Welder Beech time about a picture of seashells on a

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Speaker 4: North Carolina beach a year ago, and this won't be

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Speaker 4: the end of it. But nothing has changed with me.

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Speaker 4: I'm still innocent, I'm still not afraid, and i still

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Speaker 4: believe in the independent federal judiciary. So let's go.

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Speaker 1: It's a bare bones, two page indictment, and even Republican

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Speaker 1: Senator Tom Tillis said he hopes the Justice Department has

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Speaker 1: more evidence.

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Speaker 5: Gouy searts to the end of the internet last night.

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Speaker 5: I can't find one example where the number eight six

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Speaker 5: had anything to do with any violent threat, So hopefully

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Speaker 5: there's more to it than just the picture in the sand.

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Speaker 1: Joining me is former federal prosecutor Robert Mintz, a partner

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Speaker 1: McCarter in English, Bob, the term eighty six is ambiguous.

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Speaker 1: Is it going to be a challenge for prosecutors to

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Speaker 1: prove that this was even a threat.

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Speaker 6: So the first question that any juror or judge is

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Speaker 6: going to ask when they take a look at this

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Speaker 6: case is to focus on what does eighty six forty

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Speaker 6: seven mean? You have to go back and take a

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Speaker 6: look at the original derivation of the term eighty six,

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Speaker 6: And apparently the prevailing view is that it started somehow

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Speaker 6: in the restaurant business, and it really had to do

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Speaker 6: with the fact that an item on the menu was

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Speaker 6: no longer available, or that a customer at a restaurant

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Speaker 6: was going to be asked to leave the restaurant. And

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Speaker 6: it's only recently that it's come up in a political context.

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Speaker 6: One of the most prominent use of the term eighty

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Speaker 6: six in the last several years was back in February

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Speaker 6: of twenty twenty four, when at the time, Representative Matt

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Speaker 6: Gates of Florida posted we've now eighty six McCarthy McDaniel, McConnell,

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Speaker 6: which was apparently a reference to Kevin McCarthy losing his

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Speaker 6: House speakership, Republican National Committee chair Ron McDaniel leaving her role,

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Speaker 6: and Senator Mick McConnell announcing he would step down as

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Speaker 6: Majority leader. So we've seen the term eighty six used

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Speaker 6: in aolitical context, sometimes meaning to get rid of a

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Speaker 6: political leader. Here, the government apparently is going to try

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Speaker 6: to convince a jury ultimately that this was a statement

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Speaker 6: by former Director Komy to incite violence against the president,

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Speaker 6: and when he said eighty six forty seven, he was

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Speaker 6: arguing that the president should be assassinated. That's really the

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Speaker 6: heart of what this prosecution will ultimately be about.

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Speaker 1: And what's the standard of proof here?

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Speaker 6: Yeah, so this is a very high legal standard in

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Speaker 6: this case. Mister Komi was charged under a statute that

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Speaker 6: criminalizes the act of knowingly and wilfully making any threat

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Speaker 6: to take the life of to kidnap, or to inflict

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Speaker 6: bodily harmed upon the President.

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Speaker 4: Of the United States, and the.

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Speaker 6: Second count in the indictment criminalizes making those threats through

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Speaker 6: interstate communications. But the real question is what did mister

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Speaker 6: Komy intend when he posted that Instagram footdo He claims

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Speaker 6: that it was political speech and that he had no

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Speaker 6: intention to do violence or to try to incite anybody

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Speaker 6: else to do violence. So prostutors here are gonna have

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Speaker 6: to overcome not only the common sense definition by mister

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Speaker 6: Comy's outright denial that he intended to threaten the president.

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Speaker 1: Let's talk about possible defenses. Comy's lawyer said, we look

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Speaker 1: forward to vindicating mister Comy and the First Amendment.

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Speaker 6: Well, I think there's going to be a whole host

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Speaker 6: of defenses here. First and foremost, I think, is this

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Speaker 6: First Amendment question, because there is a long history here

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Speaker 6: of the courts interpreting that statute and weighing it against

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Speaker 6: First Amendment rights. The original Supreme Court case of Brandenburg

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Speaker 6: versus Ohio held the constitutional guarantees of free speech and

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Speaker 6: free press don't permit a law to forbid or prescribe

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Speaker 6: advocacy of the use of force or of law violation,

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Speaker 6: except in limited circumstances where the person making a statement

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Speaker 6: is inciting or producing imminent lawless action. In other cases,

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Speaker 6: even more recently made it even harder to bring these cases.

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Speaker 6: So these types of threat cases are always viewed through

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Speaker 6: the lens of First Amendment rights. And the most recent case,

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Speaker 6: the one that really is the binding precedent right now,

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Speaker 6: set the threshold even higher. In twenty fifteen, it was

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Speaker 6: actually an opinion written by Justice Roberts, and it concluded

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Speaker 6: that the mindset of the person who made the comment

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Speaker 6: must be considered. It's not enough for the subject of

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Speaker 6: a comment to view it as a threat. The person

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Speaker 6: who made it must have intended it that way. So

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Speaker 6: they have to get inside of Jim Comey's head and

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Speaker 6: try to argue that he intended this as a real

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Speaker 6: threat to the president. And one of the things that's

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Speaker 6: going to be interesting here is when you look at

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Speaker 6: the indictment that's brought, and it's very bare bones. It

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Speaker 6: does not have much information in it at all, but

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Speaker 6: it does site to certain language which was read before

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Speaker 6: the grand jury if things were done here as they

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Speaker 6: typically are, and the standard that was read to the

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Speaker 6: grand jury was that mister Comy knowingly and Wilfley made

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Speaker 6: a threat to take the life where inflick bodily harm

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Speaker 6: upon the president. And then they talk about the photograph

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Speaker 6: and they say which a reasonable recipient who was familiar

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Speaker 6: with the circumstances would interpret as a serious expression of

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Speaker 6: intent to do harm to the president of the United States.

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Speaker 6: I expect that one of the first things the defense

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Speaker 6: is going to do is argue that the presentation before

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Speaker 6: the grand jury was tainted because that standard that I

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Speaker 6: just read was a standard from a case that had

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Speaker 6: been overruled by the more recent case of twenty fifteen

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Speaker 6: that said that you have to look beyond what the

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Speaker 6: reasonable recipient would interpret from those comments. You also have

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Speaker 6: to specifically look at what the speaker meant when they

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Speaker 6: made those comments. I think the defense is going to

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Speaker 6: argue that the grand jury was given improper legal advice

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Speaker 6: where they were given the improper legal standard when they

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Speaker 6: returned that indictment. So that will certainly be one of

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Speaker 6: the issues that I think we'll see raised by the defense.

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Speaker 1: And Bob, there's that case from nineteen sixty six over

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Speaker 1: the draft that really illustrates how the First Amendment interest

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Speaker 1: is weighed in these threat cases.

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Speaker 6: These types of cases, which may appear on their face

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Speaker 6: to be simply threats against the president, could also be

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Speaker 6: viewed as political speech. This very statue was interpreted in

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Speaker 6: the case called Wats versus the United States, and in

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Speaker 6: that case, a protester was convicted for saying, if they

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Speaker 6: ever make me carry a rifle, the first man I

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Speaker 6: want to get in my sights is LBJB, a reference

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Speaker 6: to President Johnson. At the time, that individual was convicted,

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Speaker 6: but it made its way to the Supreme Court, where

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Speaker 6: the court said that that was political hyperbole rather than

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Speaker 6: a true threat, and thus not within the prohibition of

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Speaker 6: this statf So it's an example of just how specific

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Speaker 6: and how imminent these threats have to be and why

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Speaker 6: the courts have at least traditionally looked at this kind

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Speaker 6: of language as political language rather than a call to violence.

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Speaker 6: And in this case, I think it's going to be

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Speaker 6: an uphill battle for prosecutors to prove that this was

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Speaker 6: not political speak, that this was an actual imminent threat

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Speaker 6: made by James Comy against the president.

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Speaker 1: Komy's lawyer told the judge that they're going to challenge

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Speaker 1: the case by claiming a vindictive and selective prosecution. So

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Speaker 1: not only is this the second indictment against Komy, but

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Speaker 1: according to Bloomberg's sources, federal prosecutors are pursuing additional charges

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Speaker 1: against Komy for allegedly leaking classified information.

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Speaker 6: They will try to argue that the Justice Department already

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Speaker 6: pursued a case against mister Comy less than a year ago,

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Speaker 6: which was ultimately dismissed by a judge based upon the

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Speaker 6: finding that the prosecutor at the time was not properly appointed.

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Speaker 6: So they're going to try to argue that this is

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Speaker 6: just another attempt by the Trump administration to go after

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Speaker 6: one of mister Trump's perceived enemies, James Comy, and that

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Speaker 6: there's really no merit to this case, that this case

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Speaker 6: should not have been brought in the first place, and

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Speaker 6: that at best, this is a politically veiled attempt to

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Speaker 6: try to go after mister Comy after having failed with

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Speaker 6: the other prosecution.

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Speaker 1: Many commentators have noticed a pattern where Acting Attorney General

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Speaker 1: Todd Blanche, who used to be Trump's personal criminal lawyer,

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Speaker 1: seems to be pushing to bring cases against Trump's perceived

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Speaker 1: political enemies, and they're very thin. For example, the one

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Speaker 1: recently against the Southern Poverty Law Center. Many say he's

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Speaker 1: trying out for the role of Attorney General.

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Speaker 6: Well, he has made statements directly addressing the evidence in

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Speaker 6: the case. He under stands what the legal standard is,

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Speaker 6: and he is saying that the government has additional evidence

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Speaker 6: that will prove beyond a reasonable doubt that mister Comy

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Speaker 6: intended that photograph as a threat against the president. We

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Speaker 6: haven't seen that evidence yet, but prosecutors have an ethical

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Speaker 6: duty to bring cases only if a reasonable jury could

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Speaker 6: convict based upon that high standard of beyond a reasonable doubt.

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Speaker 6: So just getting the indictment doesn't mean there's enough evidence

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Speaker 6: to ultimately gain the conviction. And that's the situation where

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Speaker 6: prosecutors have to look at the case and even though

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Speaker 6: they know they could go into a grand jury and

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Speaker 6: get that grand jury to indict based upon the lower

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Speaker 6: legal standard, they have an ethical obligation not to bring

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Speaker 6: the case if they know that the evidence is insufficient

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Speaker 6: for a reasonable jury to convict ultimately on that higher

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Speaker 6: beyond a reasonable doubt standard. At this point, it's hard

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Speaker 6: to see how prosecutors could look at the evidence that's

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Speaker 6: on the record and that a reasonable jury could find

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Speaker 6: that mister Comy intended this as a threat. There's too

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Speaker 6: much ambiguity in the statement. There's too much ambiguity in

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Speaker 6: terms of his conduct that in and of itself is

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Speaker 6: reasonable doubt. And on the defense side, that's all you

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Speaker 6: have to show. You just have to show that the

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Speaker 6: government did not prove its case beyond a reasonable doubt,

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Speaker 6: and prosecutors are going to have to come up with

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Speaker 6: additional evidence if they hope to get this case to

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Speaker 6: trial and have any chance of winning.

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Speaker 1: Do you think a judge might dismiss the case before

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Speaker 1: it goes to trial.

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Speaker 6: I do think that's a possibility. And I say that

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Speaker 6: knowing that it is exceedingly rare for judges to dismiss

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Speaker 6: a criminal case before it goes to a jury. All

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Speaker 6: prosecutors have to do is get an indictment properly before

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Speaker 6: a grand jury. The indictment has to allege the elements

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Speaker 6: of the crime, and that is enough to get the

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Speaker 6: case beyond motion practice and in front of a jury.

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Speaker 6: In this case, I think there is a reasonable possibility

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Speaker 6: that a judge is going to look at this. Number One,

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Speaker 6: they're going to look at the legal standard that was

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Speaker 6: included in the indictment, and if that was deficient or

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Speaker 6: misleading or incorrect, that's one basis that this could be dismissed.

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Speaker 6: And then the judge still may look at this case

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Speaker 6: and try to decide if there's enough evidence that a

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Speaker 6: reasonable jury could actually convict. Now, defense lawyers here could

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Speaker 6: do one a few things. They could immediately challenge the

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Speaker 6: indictment as legally insufficient. Another thing they could do is

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Speaker 6: they could move for a bill of particulars, which is

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Speaker 6: a way the defense team could say to the prosecution,

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Speaker 6: we want more information, more details about what evidence supports

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Speaker 6: this indictment.

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Speaker 1: I'm sure the defense is going to act quickly here

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Speaker 1: as they did last time. Thanks so much, Bob. That's

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Speaker 1: Robert Mince of McCarter and English coming up. Bayer has

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Speaker 1: a tough time at the Supreme Court. I'm June Grosso

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Speaker 1: and this is Bloomberg. Bayer has faced a tidal wave

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Speaker 1: of litigation alleging that its round up weed killer causes

440
00:25:05,960 --> 00:25:11,440
Speaker 1: cancer and resulting in some stunning multi billion dollar jury verdicts.

441
00:25:11,800 --> 00:25:14,760
Speaker 1: In a case before the Supreme Court this week, a

442
00:25:14,880 --> 00:25:18,120
Speaker 1: jury had awarded a Missouri man one point twenty five

443
00:25:18,200 --> 00:25:21,960
Speaker 1: million dollars after finding that Beyer failed to warn him

444
00:25:21,960 --> 00:25:26,479
Speaker 1: about possible cancer risks. Beyer argues that federal law bars

445
00:25:26,560 --> 00:25:30,879
Speaker 1: the lawsuit because US regulators didn't require a cancer warning.

446
00:25:31,400 --> 00:25:35,880
Speaker 1: Its attorney, former Solicitor General Paul Clement, put it simply.

447
00:25:36,400 --> 00:25:40,640
Speaker 7: The EPA regulation and the government's brief here makes crystal

448
00:25:40,720 --> 00:25:44,560
Speaker 7: clear that a registrant cannot change the safety warnings on

449
00:25:44,600 --> 00:25:49,640
Speaker 7: a pesticide label without approval of the agency. Thus, Missouri

450
00:25:49,800 --> 00:25:53,840
Speaker 7: law here requires something that not only is not required

451
00:25:53,880 --> 00:25:57,240
Speaker 7: by federal law, but that federal law doesn't even allow.

452
00:25:57,600 --> 00:26:01,480
Speaker 1: The questioning during the oral arguments and follow the usual

453
00:26:01,600 --> 00:26:06,880
Speaker 1: ideological lines, for example, When Liberal Justice Elaina Kagan questioned

454
00:26:06,880 --> 00:26:10,639
Speaker 1: the plaintiff's lawyer, Ashley Keller, about how these lawsuits for

455
00:26:10,760 --> 00:26:13,720
Speaker 1: failure to warn could be squared with a provision in

456
00:26:13,840 --> 00:26:19,320
Speaker 1: federal law requiring uniformity in herbicide labels, and Keller denied

457
00:26:19,359 --> 00:26:24,600
Speaker 1: that the lawsuit would undercut uniformity. Conservative Justice Brett Cavanaugh

458
00:26:24,760 --> 00:26:28,080
Speaker 1: pushed back, just to be simple minded about this, mister Keller,

459
00:26:28,160 --> 00:26:32,160
Speaker 1: you have a preemption provision that's labeled uniformity, that's clearly

460
00:26:32,200 --> 00:26:34,840
Speaker 1: designed to achieve uniformity in labeling.

461
00:26:35,280 --> 00:26:38,200
Speaker 8: And what uniformity would you e regime.

462
00:26:38,119 --> 00:26:40,320
Speaker 6: Achieve uniformity in law?

463
00:26:41,200 --> 00:26:44,680
Speaker 7: You think it's uniformity when each state can require different things.

464
00:26:44,960 --> 00:26:47,760
Speaker 6: I don't think each state can require different things. The

465
00:26:47,920 --> 00:26:51,119
Speaker 6: law has to be uniform. So if Missouri law was,

466
00:26:51,160 --> 00:26:52,640
Speaker 6: in addition to our difference.

467
00:26:52,520 --> 00:26:56,480
Speaker 1: The labels illegal in one state and legal in another state,

468
00:26:56,520 --> 00:27:01,320
Speaker 1: that's uniformity. But Chief Justice John Roberts a conservative question

469
00:27:01,440 --> 00:27:05,119
Speaker 1: the notion that states worried about cancer risks should have

470
00:27:05,160 --> 00:27:08,280
Speaker 1: to wait for the EPA to decide whether to acquire

471
00:27:08,400 --> 00:27:10,480
Speaker 1: a label change.

472
00:27:10,000 --> 00:27:12,760
Speaker 9: Well in US, undermining uniformity. I appreciate that. On the

473
00:27:12,800 --> 00:27:15,080
Speaker 9: other hand, if it turns out that they were right.

474
00:27:15,520 --> 00:27:17,560
Speaker 9: It might have been good if they had an opportunity

475
00:27:17,640 --> 00:27:21,360
Speaker 9: to do something to call this danger to the attention

476
00:27:21,520 --> 00:27:24,640
Speaker 9: of the people while the federal government was going through

477
00:27:25,000 --> 00:27:25,960
Speaker 9: its process.

478
00:27:26,320 --> 00:27:30,840
Speaker 1: The litigation has already cost Bayer more than ten billion dollars,

479
00:27:31,240 --> 00:27:34,600
Speaker 1: and the company is looking for an endgame. My guest

480
00:27:34,760 --> 00:27:38,439
Speaker 1: is an expert in mass tort litigation, Elizabeth Birch, a

481
00:27:38,480 --> 00:27:42,000
Speaker 1: professor at the University of Georgia Law School. She's the

482
00:27:42,040 --> 00:27:45,320
Speaker 1: author of the new book The Pain Brokers, about a

483
00:27:45,359 --> 00:27:47,160
Speaker 1: mass tort litigation scam.

484
00:27:47,800 --> 00:27:48,040
Speaker 3: Bet.

485
00:27:48,080 --> 00:27:50,520
Speaker 1: This was one of the first cases that went to

486
00:27:50,640 --> 00:27:51,760
Speaker 1: trial against Bayer.

487
00:27:51,920 --> 00:27:54,880
Speaker 8: Right, Yeah, so this was a state court case coming

488
00:27:54,920 --> 00:27:57,679
Speaker 8: out of Missouri. And you know, this is one of

489
00:27:57,840 --> 00:28:01,680
Speaker 8: quite a few verdicts that have been decided against Bear,

490
00:28:01,840 --> 00:28:04,439
Speaker 8: although not all of them have gone that way. And

491
00:28:04,640 --> 00:28:07,959
Speaker 8: at the moment, Bear is also trying to negotiate a

492
00:28:08,000 --> 00:28:11,760
Speaker 8: class action settlement and state court, which is ironic for

493
00:28:11,800 --> 00:28:14,520
Speaker 8: any number of reasons, but you know, this is one

494
00:28:14,560 --> 00:28:17,480
Speaker 8: of those pressure points, the idea of being, hey, you'd

495
00:28:17,480 --> 00:28:20,960
Speaker 8: better suggle with us in state court, otherwise your claims

496
00:28:21,040 --> 00:28:23,879
Speaker 8: might be diminished in terms of their value. If this

497
00:28:24,119 --> 00:28:25,880
Speaker 8: is a decision that goes our way.

498
00:28:26,400 --> 00:28:31,240
Speaker 1: Put this into the context of the massive litigation against Bayer.

499
00:28:31,560 --> 00:28:34,560
Speaker 1: There have been a couple of really eye popping verdicts

500
00:28:34,560 --> 00:28:38,080
Speaker 1: of more than two billion dollars for a single plaintiff.

501
00:28:38,520 --> 00:28:41,760
Speaker 8: Yes, there have. So this litigation has been going on

502
00:28:41,800 --> 00:28:45,600
Speaker 8: for a number of years now. It is centralized in

503
00:28:45,720 --> 00:28:49,600
Speaker 8: California in front of Judge Chabria at the federal NBL level.

504
00:28:49,880 --> 00:28:52,080
Speaker 8: There are a number of state court cases that are

505
00:28:52,120 --> 00:28:55,720
Speaker 8: also pending, and Bear has really been looking for some

506
00:28:55,800 --> 00:28:58,840
Speaker 8: sort of end game and way out to this. This

507
00:28:59,040 --> 00:29:01,320
Speaker 8: is certainly a pe piece of that in front of

508
00:29:01,360 --> 00:29:04,280
Speaker 8: the Supreme Court. Although you know, even a win in

509
00:29:04,320 --> 00:29:07,640
Speaker 8: front of the Supreme Court wouldn't kill all of the lawsuits.

510
00:29:07,680 --> 00:29:10,000
Speaker 8: It would make them more difficult to proceed, certainly on

511
00:29:10,000 --> 00:29:12,520
Speaker 8: the failure to Warren claims, but the plaintiffs have also

512
00:29:12,600 --> 00:29:15,800
Speaker 8: brought defective design claims. So this is really been a

513
00:29:15,920 --> 00:29:18,400
Speaker 8: thorn in the side of Bear for years now.

514
00:29:18,760 --> 00:29:21,400
Speaker 1: Tell us about the main issue in this case.

515
00:29:22,040 --> 00:29:24,800
Speaker 8: Well, the issue that is in front of the Supreme

516
00:29:24,840 --> 00:29:28,120
Speaker 8: Court right now is a question about preemption, and it

517
00:29:28,160 --> 00:29:31,640
Speaker 8: is in some ways a fairly narrow question of preemption

518
00:29:31,840 --> 00:29:35,120
Speaker 8: that's based on this Pesticide Act, and it's a question

519
00:29:35,160 --> 00:29:39,160
Speaker 8: about whether the federal law can preempt state law decisions

520
00:29:39,200 --> 00:29:40,600
Speaker 8: on failure to Warren claims.

521
00:29:41,000 --> 00:29:45,000
Speaker 1: So Behar says that the federal law preempts the state law.

522
00:29:45,280 --> 00:29:46,800
Speaker 1: What's the response of the plaintiff.

523
00:29:47,120 --> 00:29:49,560
Speaker 8: You know, the planiffs are making a number of arguments.

524
00:29:49,680 --> 00:29:52,440
Speaker 8: I think the one that is most intuitive is that

525
00:29:52,640 --> 00:29:57,480
Speaker 8: once the EPA approves a particular label, things can happen

526
00:29:57,480 --> 00:29:59,720
Speaker 8: and things can change. So, you know, in tho case,

527
00:29:59,800 --> 00:30:02,920
Speaker 8: the label was approved more than a decade ago, and

528
00:30:03,200 --> 00:30:07,640
Speaker 8: there is some evidence that there is a link between glycophosphate,

529
00:30:07,720 --> 00:30:11,440
Speaker 8: which is the key ingredient in roundup and on Hodgkin's lymphoma.

530
00:30:11,880 --> 00:30:14,480
Speaker 8: That has been at the heart of this controversy for

531
00:30:14,560 --> 00:30:17,640
Speaker 8: a number of years. The World Health Organization has said

532
00:30:17,920 --> 00:30:21,880
Speaker 8: that there is a possible carcinogen and glycophosphate. The EPA

533
00:30:21,960 --> 00:30:25,080
Speaker 8: has been more reluctant to embrace that decision. And so,

534
00:30:25,320 --> 00:30:28,240
Speaker 8: you know, the big question is, well, what about emerging science.

535
00:30:28,480 --> 00:30:30,160
Speaker 8: You know, if it turns out that you have a

536
00:30:30,240 --> 00:30:34,000
Speaker 8: label that's approved many many years behind, isn't there some

537
00:30:34,040 --> 00:30:37,040
Speaker 8: sort of responsibility. I'm part of the company to keep

538
00:30:37,120 --> 00:30:39,960
Speaker 8: up with the science and to continue to warn consumers

539
00:30:40,160 --> 00:30:42,160
Speaker 8: when there is a change in that science.

540
00:30:42,400 --> 00:30:48,080
Speaker 1: In all these cases, questions about glycophosphates connection to cancer

541
00:30:48,400 --> 00:30:49,960
Speaker 1: are part of the litigation.

542
00:30:50,440 --> 00:30:53,800
Speaker 8: There is different scientific support on one side versus together.

543
00:30:54,120 --> 00:30:57,160
Speaker 8: And this is a question right now in front of

544
00:30:57,200 --> 00:31:02,960
Speaker 8: the courts about whether there is general causation between exposure

545
00:31:02,960 --> 00:31:07,000
Speaker 8: to glycophosphate and how much and the development of non

546
00:31:07,040 --> 00:31:11,200
Speaker 8: Hodgkins slump foma. Again, there's a significant latency period here.

547
00:31:11,320 --> 00:31:14,040
Speaker 8: It can be you know, fourteen fifteen years between the

548
00:31:14,120 --> 00:31:17,200
Speaker 8: exposure and the development of cancer. So there's all sorts

549
00:31:17,240 --> 00:31:21,520
Speaker 8: of general causation questions, which is can glycophosphate cause this

550
00:31:21,600 --> 00:31:25,840
Speaker 8: particular disease? And then specific causation questions, which is did

551
00:31:25,840 --> 00:31:29,440
Speaker 8: it cause this particular plaintiffs on hotchkinsom foma, and.

552
00:31:29,400 --> 00:31:33,800
Speaker 1: The Trump administration has sort of embraced glycophosphate.

553
00:31:34,520 --> 00:31:37,640
Speaker 8: You know, it's interesting, So the Trump administration has very

554
00:31:37,720 --> 00:31:41,760
Speaker 8: much embraced glycophosphate, but it is something that is dividing

555
00:31:42,160 --> 00:31:45,320
Speaker 8: the Trump base. You know, Robert Kennedy for a number

556
00:31:45,360 --> 00:31:50,360
Speaker 8: of years actually represented plaintiffs against Montanto, and a key

557
00:31:50,400 --> 00:31:54,920
Speaker 8: piece of them make America healthy again is to reduce

558
00:31:55,160 --> 00:31:58,480
Speaker 8: the use of testicized like glycophosphate. And so if there

559
00:31:58,480 --> 00:32:01,000
Speaker 8: were a number of protests in front of the Supreme

560
00:32:01,040 --> 00:32:05,400
Speaker 8: Court that included MAHA supporters who were protesting against the

561
00:32:05,600 --> 00:32:06,560
Speaker 8: use of round up.

562
00:32:07,040 --> 00:32:10,640
Speaker 1: So from the oral arguments, it seemed like the justices

563
00:32:10,880 --> 00:32:12,000
Speaker 1: were divided.

564
00:32:12,600 --> 00:32:16,080
Speaker 8: Yeah, I mean, they certainly seemed divided, and it didn't

565
00:32:16,120 --> 00:32:20,720
Speaker 8: fall neatly along conservative liberal lines. So you know, you

566
00:32:20,800 --> 00:32:24,080
Speaker 8: had some justices you would have thought might be supportive

567
00:32:24,200 --> 00:32:27,080
Speaker 8: of their who in fact were less supportive of their

568
00:32:27,160 --> 00:32:28,800
Speaker 8: than you might imagine. And then you had a number

569
00:32:28,840 --> 00:32:32,680
Speaker 8: of the liberal justices who were actually not seeming like

570
00:32:32,800 --> 00:32:35,640
Speaker 8: they were in favor of bear. So it'll be interesting

571
00:32:35,680 --> 00:32:39,400
Speaker 8: to see what this opinion ultimately yields, because it doesn't

572
00:32:39,440 --> 00:32:42,240
Speaker 8: have the kind of clear lines that we often expect

573
00:32:42,440 --> 00:32:44,560
Speaker 8: among these types of hot button issues.

574
00:32:45,040 --> 00:32:48,200
Speaker 1: And what do you make of the Chief Justice suggesting

575
00:32:48,360 --> 00:32:52,680
Speaker 1: that states considering new evidence that a product is risky

576
00:32:53,160 --> 00:32:56,480
Speaker 1: should be allowed to call this danger to the attention

577
00:32:56,600 --> 00:32:57,200
Speaker 1: of the people.

578
00:32:57,640 --> 00:33:00,280
Speaker 8: I mean, I think that goes back to if there

579
00:33:00,400 --> 00:33:04,160
Speaker 8: is new and emerging evidence, does that mean that the

580
00:33:04,240 --> 00:33:07,040
Speaker 8: hands of the company are tied that they can't warn

581
00:33:07,120 --> 00:33:10,240
Speaker 8: consumers that, hey, you might need to have some sort

582
00:33:10,280 --> 00:33:13,800
Speaker 8: of personal protective equipment, or hey, this might have some

583
00:33:13,840 --> 00:33:18,120
Speaker 8: sort of link to cancer, because the EPA has already

584
00:33:18,120 --> 00:33:20,440
Speaker 8: sort of put that in place. The foot side of

585
00:33:20,480 --> 00:33:22,880
Speaker 8: all this is that there is evidence that a number

586
00:33:22,960 --> 00:33:26,840
Speaker 8: of companies, even in light of old EPA warnings, have

587
00:33:27,240 --> 00:33:30,320
Speaker 8: changed their own labels. And so you know, that came

588
00:33:30,400 --> 00:33:32,840
Speaker 8: up and some of the questioning saying, well, you know

589
00:33:32,880 --> 00:33:35,160
Speaker 8: companies are doing this all the time, why shouldn't tie

590
00:33:35,240 --> 00:33:37,760
Speaker 8: the hands of companies if this is what they're doing already,

591
00:33:38,200 --> 00:33:40,600
Speaker 8: And so that was kind of one of the points

592
00:33:40,640 --> 00:33:42,080
Speaker 8: of contention that came up.

593
00:33:42,360 --> 00:33:46,400
Speaker 1: And tell us about questions of uniformity in the law,

594
00:33:46,600 --> 00:33:53,360
Speaker 1: which Justices Kagan and Kavanaugh quiz the plaintiff's attorney on I.

595
00:33:53,360 --> 00:33:56,240
Speaker 8: Mean, I think the question is is this an instance

596
00:33:56,400 --> 00:33:59,479
Speaker 8: in which you really want uniformity in the law, and

597
00:33:59,560 --> 00:34:03,680
Speaker 8: you want uniform law to preempt what the states are doing.

598
00:34:04,240 --> 00:34:07,080
Speaker 8: And so you know, if you have California saying you

599
00:34:07,200 --> 00:34:09,600
Speaker 8: need to warn we think that there is some sort

600
00:34:09,760 --> 00:34:14,359
Speaker 8: of link between glycopho state and non hodgkinsom foma, does

601
00:34:14,400 --> 00:34:16,960
Speaker 8: that mean that you have to put a label in

602
00:34:17,040 --> 00:34:20,319
Speaker 8: California and nowhere else in the United States. Do you

603
00:34:20,400 --> 00:34:23,279
Speaker 8: have this sort of state by state regulatory scheme or

604
00:34:23,280 --> 00:34:26,439
Speaker 8: do you have federal preemption in telling you what has

605
00:34:26,480 --> 00:34:28,719
Speaker 8: to be there? And it seems like there's also this

606
00:34:28,800 --> 00:34:32,280
Speaker 8: sort of related question of how much can a company

607
00:34:32,440 --> 00:34:36,719
Speaker 8: do even in the wake of the EPA not requiring it.

608
00:34:37,040 --> 00:34:38,719
Speaker 8: You know, so can you go ahead and put a

609
00:34:38,800 --> 00:34:41,680
Speaker 8: label on there saying, hey, we're worried this might cause

610
00:34:41,760 --> 00:34:44,920
Speaker 8: cancer even if the EPA doesn't require you to do it.

611
00:34:45,440 --> 00:34:49,600
Speaker 1: And farm groups filed briefs in supportive Bayer, arguing that

612
00:34:49,640 --> 00:34:54,760
Speaker 1: a uniform standard is better than a patchwork of state rules.

613
00:34:55,120 --> 00:34:57,760
Speaker 8: I get the sense that the farm community is split.

614
00:34:57,840 --> 00:35:01,080
Speaker 8: I mean, there were a number of the MAH supporters

615
00:35:01,160 --> 00:35:05,320
Speaker 8: who were concerned about farmers and about you know, farmers

616
00:35:05,400 --> 00:35:07,959
Speaker 8: exposure to the use of roundup. And I think many

617
00:35:07,960 --> 00:35:11,000
Speaker 8: of the farmers echoed that the flip side is that,

618
00:35:11,440 --> 00:35:13,640
Speaker 8: you know, they find that it is a very effective

619
00:35:13,680 --> 00:35:16,400
Speaker 8: weak killer, and so you know, this is something that

620
00:35:16,520 --> 00:35:19,279
Speaker 8: many of them want to continue using. So I don't

621
00:35:19,280 --> 00:35:22,319
Speaker 8: think there's uniformity in, hey, all farmers want this, or

622
00:35:22,480 --> 00:35:23,680
Speaker 8: all farmers don't want this.

623
00:35:24,520 --> 00:35:29,839
Speaker 1: Bloomberg Intelligence litigation analyst Holly From said the arguments went

624
00:35:29,960 --> 00:35:33,840
Speaker 1: poorly for Beyor and changed her view. She now thinks

625
00:35:33,920 --> 00:35:37,799
Speaker 1: the majority of justices will find state law failure to

626
00:35:37,840 --> 00:35:42,319
Speaker 1: warn claims are not preempted by federal law, so a

627
00:35:42,400 --> 00:35:46,920
Speaker 1: loss for Beayor and consumers can pursue these claims.

628
00:35:47,760 --> 00:35:50,640
Speaker 8: Yeah, I think it's really hard to say. I don't

629
00:35:50,719 --> 00:35:55,320
Speaker 8: think the argument was as clearly in favor of Bear

630
00:35:55,520 --> 00:35:58,319
Speaker 8: as many people had expected it to be. So in

631
00:35:58,360 --> 00:35:59,920
Speaker 8: that regard, you know, it was a bit of a

632
00:36:00,160 --> 00:36:03,120
Speaker 8: blow to Bear. I think there's stockfelf. It doesn't mean

633
00:36:03,120 --> 00:36:06,040
Speaker 8: that it won't ultimately be decided in Bear's favor, but

634
00:36:06,440 --> 00:36:10,280
Speaker 8: it didn't go as many people work predicting it would.

635
00:36:10,520 --> 00:36:14,319
Speaker 1: Could the decision here affect the medical device, cosmetic and

636
00:36:14,360 --> 00:36:17,799
Speaker 1: food industries that are governed by laws similar to the

637
00:36:17,840 --> 00:36:19,800
Speaker 1: one at the center of the Beyer case.

638
00:36:20,280 --> 00:36:23,160
Speaker 8: You know, it's hard to say without seeing how broadly

639
00:36:23,360 --> 00:36:27,560
Speaker 8: or how narrowly the Supreme Court decision is written. Traditionally,

640
00:36:27,600 --> 00:36:31,279
Speaker 8: the Supreme Court has only decided what it has to decide,

641
00:36:31,680 --> 00:36:33,840
Speaker 8: and you know there's this question of okay, well, if

642
00:36:33,880 --> 00:36:36,279
Speaker 8: they decide this about the pesticide Act, What does it

643
00:36:36,320 --> 00:36:39,840
Speaker 8: say about the Food Drug Cosmetic Act, et cetera. Certainly

644
00:36:39,920 --> 00:36:44,160
Speaker 8: it would be potentially persuasive in other areas, but again,

645
00:36:44,320 --> 00:36:47,600
Speaker 8: depending on how broadly or how narrowly written it is,

646
00:36:47,920 --> 00:36:51,440
Speaker 8: it certainly doesn't carry the day in other acts.

647
00:36:51,640 --> 00:36:53,880
Speaker 1: Well, it's going to be very interesting to see if

648
00:36:54,120 --> 00:36:59,280
Speaker 1: the decision cuts across ideological lines as well. Thanks so much, Beth.

649
00:36:59,600 --> 00:37:02,319
Speaker 1: That's for us, or Elizabeth Birch of the University of

650
00:37:02,400 --> 00:37:05,239
Speaker 1: Georgia Law School. And that's it for this edition of

651
00:37:05,239 --> 00:37:07,880
Speaker 1: The Bloomberg Law Show. Remember you can always get the

652
00:37:07,960 --> 00:37:11,200
Speaker 1: latest legal news on our Bloomberg Law podcasts. You can

653
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Speaker 1: find them on Apple Podcasts, Spotify, and at www dot

654
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655
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Speaker 1: tune into The Bloomberg Law Show every weeknight at ten

656
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657
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