Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2: There's something centers to going on here. There's something bigger
Speaker 2: than just the FBI confiscating the records that they.
Speaker 3: Took, and Fulton County Chairman Rob Pitts says they're asking
Speaker 3: a federal court to order the FBI to return the
Speaker 3: roughly seven hundred boxes of ballots, voter rolls, and other
Speaker 3: election records seized in a raid about a week and
Speaker 3: a half ago. Pitt warned that the raid foreshadows further
Speaker 3: federal action on elections elsewhere in the country.
Speaker 2: This is I think probably the first step in whatever
Speaker 2: they're going to do in Tota to depress voter participation,
Speaker 2: voter registration, making whatever changes they think are necessary to
Speaker 2: help their case in twenty twenty six, but more importantly
Speaker 2: in twenty twenty eight.
Speaker 3: This is the Jnstice Department has sued twenty four Star
Speaker 3: and DC for refusing to turn over voter data, and
Speaker 3: President Trump has been doubling down on his calls to
Speaker 3: nationalize elections.
Speaker 1: I wouldn't see elections be honest, and if a state
Speaker 1: can't run an election, I think the people behind me
Speaker 1: should do something about it.
Speaker 3: Of course, the Constitution gives the authority to administer elections
Speaker 3: to the states. My guest is Barbara mcquad, a professor
Speaker 3: at the University of Michigan Law School and a former
Speaker 3: US attorney. Barbara, the FBI sees the records using a
Speaker 3: grand jury subpoena as part of a criminal investigation. What
Speaker 3: do you think is going on here?
Speaker 4: It's unknown, of course, but we have some hints. I mean,
Speaker 4: one is they got a search for which means a
Speaker 4: magistrate judge found probable cause to believe that evidence of
Speaker 4: a crime would be found there. And we know from
Speaker 4: the public filing that what they obtained were ballots, tabulation tapes,
Speaker 4: and voter roles.
Speaker 5: Now twenty twenty.
Speaker 4: Is six years ago, and so it would seem that
Speaker 4: anything that occurred during that year would be time barred
Speaker 4: by the five year statute of limitations. But of course
Speaker 4: that's not something that a magistrate judge had taken into
Speaker 4: consideration at that stage. Perhaps there's some allegation of an
Speaker 4: ongoing conspiracy that could keep that allegation fresh. I don't know.
Speaker 4: But also you can't ignore the simultaneous civil request that
Speaker 4: Trump's doj has been making to try to get voter
Speaker 4: rolls from a number of states, including Georgia. They have
Speaker 4: failed in states where decisions have been made, like California
Speaker 4: and Oregon, where judges have said no, the federal government
Speaker 4: is not entitled to this stuff. So are they simply
Speaker 4: using criminal process to get that which they could not
Speaker 4: obtain otherwise.
Speaker 5: But the fact that a magistrate.
Speaker 4: Found probable cause suggests that there is more information than
Speaker 4: than we currently know.
Speaker 3: The prosecutor whose name was on the warrant was not
Speaker 3: the US attorney in Atlanta, but the Saint Louis US attorney,
Speaker 3: Thomas Albis, who's been appointed by Attorney General Pam Bondi
Speaker 3: to investigate so called election integrity cases nationwide. How unusual
Speaker 3: is that sort of skipping over the local US attorney.
Speaker 5: Yeah, it's really unusual, but not illegal.
Speaker 4: I mean, so much of what the Trump administration does
Speaker 4: is technically lawful, but either unusual or you know, discretion
Speaker 4: you'd rather see someone not exercise. I suppose ordinarily you
Speaker 4: would expect the US attorney from the Northern District of
Speaker 4: Georgia to oversee any search conducted within his jurisdiction. That's
Speaker 4: the way it's done in ninety nine point nine percent
Speaker 4: of the cases. The Attorney General does, however, have the
Speaker 4: authority to appoint a special attorney to investigate any matters
Speaker 4: that she chooses, and we've seen this done over the years.
Speaker 5: For example, Pat Fitzgerald.
Speaker 4: Who was the US Attorney in Chicago at the time,
Speaker 4: handled the Scooter Libby case. I think that was an
Speaker 4: effort to just sort of get it out of Washington
Speaker 4: so that it wouldn't have the stench of politics. I
Speaker 4: know that Anne Tompkins out of North Carolina handled the
Speaker 4: prosecution of General Petraeus. For example, John Durham, before he
Speaker 4: was the special counsel looking at the origins of the
Speaker 4: Russia investigation, actually investigated CIA torture.
Speaker 5: At one time, So it's not unprecedented.
Speaker 4: It's often in sort of politically charged cases where the
Speaker 4: Attorney General may appoint somebody outside of Washington who's a
Speaker 4: US attorney or it doesn't have to be to handle
Speaker 4: maybe sensitive cases. And I think it's especially true if
Speaker 4: the case might transcend the boundaries of a particular judicial district.
Speaker 4: So maybe this case is going to include not just
Speaker 4: Georgia but some other states, so that might make some sense.
Speaker 5: I worry a little bit.
Speaker 4: I don't know Thomas Albis, but I do know that
Speaker 4: he comes from Missouri, and he's got sort of the
Speaker 4: association with election.
Speaker 5: Deniers that causes me some concern.
Speaker 4: And you remember, in twenty twenty, there was a different
Speaker 4: US attorney Trump appointed in the Northern District of Georgia
Speaker 4: by the name of B. J. Pack, and he resigned
Speaker 4: in December of twenty twenty when Trump started asking Brad
Speaker 4: Raffensberg or the Secretary of State there to find me
Speaker 4: eleven seven hundred and eighty votes. So you wonder if
Speaker 4: it isn't the case that these US attorneys who've got
Speaker 4: backgrounds as federal prosecutors. As the current US attorney there
Speaker 4: in Northern Georgia does I think his name is Hertzberg.
Speaker 4: You know, he's a career a USA. But Trump's not
Speaker 4: going to make the same mistake twice, right, He's going
Speaker 4: to make sure he's got somebody he can trust that
Speaker 4: Pam Bondy has handpicked to handle this very sensitive operation
Speaker 4: as opposed to the person who would ordinarily assign this
Speaker 4: case too.
Speaker 3: And actually the Special Agent in charge of the Atlanta
Speaker 3: Field Office resigned from his post about a week before
Speaker 3: the agent served the war and there was no public explanation.
Speaker 4: Yeah, that's another red flag, I suppose. And I don't
Speaker 4: know whether he resigned or was fired, and I don't
Speaker 4: know why he left. I know cash Pttel has been
Speaker 4: firing agents who had anything to do with either the
Speaker 4: Trump investigations or the January sixth investigations, which itself is improper.
Speaker 5: There's no allegation that engaged in any misconduct. They just
Speaker 5: don't like the cases that they worked on, so we.
Speaker 4: Don't know why. But again, that would be another safeguard there.
Speaker 4: The Special Agent in charge of the FBI runs the
Speaker 4: FBI office in Atlanta. That office was tasked with conducting
Speaker 4: this search, and so the special Agent in charge would
Speaker 4: be someone who'd be in a position to push back
Speaker 4: and say, no, we're not going to do this.
Speaker 5: I don't think it's lawful.
Speaker 4: I don't think it's an appropriate use of our power,
Speaker 4: or at least.
Speaker 5: Let's talk about this.
Speaker 4: And the fact that he was either fired or resigned
Speaker 4: again is just one more red flag and another irregularity
Speaker 4: among many.
Speaker 3: And yet another irregularity, Fulton County officials say they're typically
Speaker 3: given copies when records are taken but they weren't given
Speaker 3: any copies this time by the FBI, and there was
Speaker 3: no chain of custody inventory taken when the records were seized.
Speaker 3: So basically they don't know exactly what records are missing,
Speaker 3: and when the FBI returns the records, they won't be
Speaker 3: able to verify if they've gotten everything back.
Speaker 5: Oh what a mess.
Speaker 4: I didn't know that, So, you know, the chaos of
Speaker 4: the Trump administration never ceases to amaze me. I mean,
Speaker 4: of course, ordinarily, when the FBI conducts a search, there
Speaker 4: is a whole protocol for how that's done. They get
Speaker 4: training at Quantico for how to do this. There is
Speaker 4: an agent who leads the search, and then there are
Speaker 4: other agents assigned to the search. They assign various agents,
Speaker 4: at least two to every room that gets searched. When
Speaker 4: there are computers involved, they track what it is they're
Speaker 4: taking or whether they're just copying it, and documenting that
Speaker 4: carefully is critically important, number one, so that everybody knows
Speaker 4: what was taken, so the rightful owner of the property
Speaker 4: kind of requested back. But also if you're going to
Speaker 4: use this at evidence at trial, you have to authenticate
Speaker 4: it and show that chain of custody so that the
Speaker 4: jury knows this isn't something that you just manufactured once
Speaker 4: you got back to the FBI office, that you can
Speaker 4: have a witness testify. I am the one who showed
Speaker 4: up at the Fulton County Election office on such and
Speaker 4: such day. I took this document into my hands, or
Speaker 4: I copied it from a computer or whatever it was.
Speaker 4: I put my initials on it. I put it in
Speaker 4: an evidence bag. I labeled the drive whatever it is,
Speaker 4: so that that chain of custody can be retrieved at trial.
Speaker 4: It makes me wonder whether they're obtaining this evidence not
Speaker 4: so much for any future criminal case, but for some
Speaker 4: other purpose.
Speaker 5: I don't know what that purpose would be.
Speaker 3: And I was saving the biggest irregularity for last. Barbara,
Speaker 3: the Director of National Intelligence. Tulsi Gabbard was at the raid.
Speaker 3: She initially said that President Trump had asked her to
Speaker 3: be there, but there have been shifting explanations from the
Speaker 3: administration about why she was at the scene of a
Speaker 3: domestic law enforcement operation. Listen to what Attorney General Bondi
Speaker 3: said when asked about that D and I.
Speaker 6: Gabbard and I are inseparable. We are constantly together, as
Speaker 6: are the people behind us. We constantly talk, we collaborate
Speaker 6: as a cabinet. We're all extremely close.
Speaker 3: They may be inseparable, but Bondi wasn't at the raid
Speaker 3: in Georgia. And in addition, Gabbard facilitated a call between
Speaker 3: the President and the FBI agents after the search on speaking.
Speaker 5: All of this highly irregular and bizarre.
Speaker 4: So there are two reasons it's bizarre to me that
Speaker 4: Tulsi Gabbard was there. Number One, a person at her level,
Speaker 4: the Director of National Intelligence, like just should have better
Speaker 4: things to do.
Speaker 7: Right.
Speaker 5: They have trained agents for this work. You would not
Speaker 5: expect the Attorney General to be there.
Speaker 4: You would not expect the head of the FBI to
Speaker 4: be there, Right, This is in the trenches kind of
Speaker 4: work that agents are trained to do and do every day.
Speaker 4: So the idea that she's there, and she's there like,
Speaker 4: you know, in a ball cap and everything, Like, what
Speaker 4: is she rolling up her sleeves and grabbing evidence?
Speaker 5: I don't think so.
Speaker 4: So just bizarre that she's physically present at the scene,
Speaker 4: first of all.
Speaker 5: Second of all, this.
Speaker 4: Really feels like something way beyond her remit. Her job
Speaker 4: is to coordinate intelligence collection among the eighteen intelligence agencies
Speaker 4: in the federal government, and then to report to the
Speaker 4: President about the results of those findings, to answer any
Speaker 4: questions he may have to advise him about threats to
Speaker 4: the national security. These are threats coming from foreign actors,
Speaker 4: so that suggests that they're there is some foreign nexus
Speaker 4: to this search. I can't imagine what that would be.
Speaker 4: It kind of goes back to some of those conspiracy theories.
Speaker 4: Remember when Sidney Powell was saying things like dominion falsely,
Speaker 4: I'll add dominion voting machines were programmed by Hugo Chavez
Speaker 4: in Venezuela, like what? And then remember there was some
Speaker 4: tie to Italy that caused William Barr to actually travel
Speaker 4: there with John Durham when they were investigating the origins
Speaker 4: of the Russian investigation. They never found anything there. The
Speaker 4: Inspector General never found anything relating to these things. It
Speaker 4: seems like it was all just wild, crazy stuff that
Speaker 4: was manufactured. But here we are again with some suggestion
Speaker 4: that there's some foreign nexus to all of this.
Speaker 5: I don't know what it is.
Speaker 4: But if there's not any foreign nexus, highly improper for
Speaker 4: Tulsa Gabbert to be there. But if she's there, it
Speaker 4: does raise this specter of is there some foreign nexus
Speaker 4: to this? And I just can't imagine where this is going.
Speaker 4: But brace yourself, June.
Speaker 3: I've been bracing myself every day. Thanks so much, Barbara.
Speaker 3: That's Professor Barbara McQuaid of the University of Michigan Law School.
Speaker 3: Coming up next. The score is windmills five Trump zero.
Speaker 3: I'm June Grosso and you're listening to Bloomberg.
Speaker 8: Did I know windmills very much.
Speaker 2: I've studied it better than anybody.
Speaker 8: You'll see these things all over the place.
Speaker 5: They destroy everything.
Speaker 1: They're horrible and the most expensive energy there is. They
Speaker 1: ruin the environment, they kill the birds, they kill the wealth. Darling,
Speaker 1: I want to watch Donald Trump on television tonight, but
Speaker 1: the winds stop blowing and I can't watch.
Speaker 8: There's no electricity in the house.
Speaker 7: Darling.
Speaker 1: You want to see a bird cemetery, go under a
Speaker 1: windmill sometime you'll see the status.
Speaker 3: President Donald Trump has been a vehement critic of wind
Speaker 3: power for years, deriding wind turbines as bird killing eye
Speaker 3: sores and wmalsely claiming it's the most expensive form of energy,
Speaker 3: causes cancer and drives whales crazy. And Trump has aggressively
Speaker 3: tried to cripple the wind power industry in his second term.
Speaker 3: Within hours of returning to the White House in twenty
Speaker 3: twenty five, he issued a directive that froze new permitting
Speaker 3: for wind energy and ordered officials to consider terminating any
Speaker 3: existing leases.
Speaker 8: We don't allow windmills.
Speaker 5: We're not allowing any windmills to go up.
Speaker 3: And so in December, the Department of the Interior ordered
Speaker 3: a pause on five multi billion dollar wind farm projects
Speaker 3: under construction, saying it was due to unspecified national security concerns.
Speaker 3: While this week, for the fifth time, a federal judge
Speaker 3: found that the administration's permitting freeze was illegal and granted
Speaker 3: a preliminary injunction to block its stop work order. Now
Speaker 3: all five of the wind farms plaus and in federal
Speaker 3: waters have gotten the go ahead from judges, although the
Speaker 3: Trump administration says it will keep finding them in court.
Speaker 3: My guest is an expert in environmental law, Pat Parento,
Speaker 3: a professor at the Vermont Law and Graduate School. Pat
Speaker 3: tell us what happened when five different judges took a
Speaker 3: look at the Interior Department stop work orders on these
Speaker 3: wind farm projects.
Speaker 7: So Trump is zero for five basically in these cases.
Speaker 7: And the interesting thing is these are a variety of judges.
Speaker 7: Two of them were appointed by Trump, and a third one,
Speaker 7: Royce Lambert, who just issued the final nail in the
Speaker 7: coffin for this stop work order. He was nominated by
Speaker 7: Ronald Reagan. So you know, we're not talking about woke judges.
Speaker 7: We're talking about conservative judges. All of them, without exception,
Speaker 7: have said that this order, this stop work order on
Speaker 7: five offshore wind projects, but which by the way, is
Speaker 7: six pigawatts. Okay, it's designed to serve more than two
Speaker 7: and a half million homes and businesses all up and
Speaker 7: down the East Coast. So you know, this is a
Speaker 7: really really significant amount of electricity that the stop work
Speaker 7: order has tried to halt. So there's a preliminary injunction
Speaker 7: against all of the stop work orders at this point.
Speaker 3: The Trump administration, the Interior Department, has said that they're
Speaker 3: suspending these because of national security risks. It didn't disclose
Speaker 3: the security risk, but it claimed that the Department of
Speaker 3: Defense provided new classified information about advances and adversary technologies
Speaker 3: that could raise national security issues with offshore wind projects.
Speaker 3: I'm not sure what that means. And Judge Lamberth looked
Speaker 3: at those confidential documents and said he didn't get it.
Speaker 3: He didn't see the security risks right.
Speaker 7: He said, there was no proof of imminent threat to
Speaker 7: national security at all. On the other hand, he said
Speaker 7: that stopping the work orders was going to cost these
Speaker 7: companies two million dollars a day. One of the projects,
Speaker 7: Vineyard Win, was ninety five percent complete, it's already sending
Speaker 7: some electricity to the grid. And two of the other projects,
Speaker 7: one of them was forty percent complete, the other one
Speaker 7: sixty five percent complete. So you got to remember these
Speaker 7: are projects that have gone through an incredible amount of vetting,
Speaker 7: including Department of Defense vetting, including clearance from the Department
Speaker 7: of Defense. Of course, that was the Department of Defense
Speaker 7: before Trump. So when Trump now comes up with these
Speaker 7: secret classified documents demonstrating a threat to national security, and
Speaker 7: as you point out, Jadge Lambeth looked at them and said,
Speaker 7: I don't see it, it does raise the serious question
Speaker 7: is this all just a pretext for Trump's you know,
Speaker 7: well known animosity, outright hostility to win power. And it
Speaker 7: all comes from the fact that he owns a golf
Speaker 7: course in Scotland and from his golf course, you can
Speaker 7: see wind farms off the coast of Scotland generating all
Speaker 7: kinds of clean electricity. He doesn't like the look of them.
Speaker 7: He's come up with all kinds of reasons why they're bad.
Speaker 7: They cause cancer, no they don't. They kill a disproportionate
Speaker 7: number of birds, No they don't. They're unreliable, no they're not.
Speaker 7: They're too expensive, No they're not. So that's where we are.
Speaker 3: Pat You left out that Trump says they drive the
Speaker 3: whales crazy.
Speaker 7: Oh, the whales, don't forget the whales. Yeah, and all
Speaker 7: of this has been true. And you know, years and
Speaker 7: years not only of vetting in the agencies, but the
Speaker 7: whale issue in particular has been up and down the
Speaker 7: courts in the first circuit and the second circuit repeatedly,
Speaker 7: and none of the cases have found a serious threat
Speaker 7: to the whales. Believe me, if there was a serious
Speaker 7: threat to the whales, you'd be hearing about it from me.
Speaker 3: That's true. I know all the work you've done on
Speaker 3: preserving wildlife and endangered species. Do you think another reason
Speaker 3: that Trump may object to wind power is that he
Speaker 3: wants more power to be generated from natural gas, coal,
Speaker 3: and nuclear energy. There's also the fact that former President
Speaker 3: Joe Biden supported renewable energy with things like tax credits.
Speaker 7: Yeah, anything that Biden supported, he's going to kill. And
Speaker 7: you know, these arguments just fall apart the studies that
Speaker 7: have been done by banks serious people. Right, I'll say
Speaker 7: that wind and solar energy are the cheapest forms of
Speaker 7: energy to bring online quickly. Not that they're going to
Speaker 7: solve all of our problems. They're not. You need base
Speaker 7: load electricity, But when it comes to really costing out,
Speaker 7: you know, the life cycle costs of these various energy
Speaker 7: transmission options, and you look at everything from where do
Speaker 7: you get the materials, you know, whether it's fuel or
Speaker 7: other things to build these systems, and then how much
Speaker 7: does it cost to buy the fuel for these systems?
Speaker 7: Just think about it. The wind is free, the sun
Speaker 7: is free. Once you've installed these systems, these wind turbines offshore,
Speaker 7: you don't suffer the fluctuations of gas prices. You know,
Speaker 7: you don't have oil spills. You have wind spills, but
Speaker 7: not oil spills. So the sober analysis of renewables is
Speaker 7: saying to meet the growing demand for electricity, including the
Speaker 7: huge one from AI data, centers. You need more wind
Speaker 7: and solar, You need all kinds of forms of energy,
Speaker 7: but you in particular need projects that are almost complete
Speaker 7: and ready to go.
Speaker 3: The White House said they're going to continue fighting in court.
Speaker 3: Do you think that appellate courts might have a different viewpoint?
Speaker 7: They might, You know, you always have to leave open
Speaker 7: the possibility that a different panel of judges would reach
Speaker 7: a different conclusion. But the point is that the evidence
Speaker 7: here of a national security threat consists of a document
Speaker 7: or documents, right, and so you don't have witnesses. Yeah,
Speaker 7: I mean some other judges might look at these documents
Speaker 7: and reach a different conclusion than Judge Lamberts did. But
Speaker 7: the rule is the trial court's decision to issue an
Speaker 7: injunction if it's reasonable, right, if it's based on an
Speaker 7: analysis of whether the government's stated reason for these stop
Speaker 7: work orders passes muster. I don't think the courts of
Speaker 7: appeal are going to overturn these preliminary injunctions. The cases
Speaker 7: are preceding the proponents of these projects, primarily or Sted,
Speaker 7: the Denmark firm. They're bounded determined to work with the
Speaker 7: Trump administration to resolve whatever their questions are. The real
Speaker 7: question is with the signals coming from these wind turbines
Speaker 7: to the grid, would they interfere with military radar readings.
Speaker 7: That's what it comes down to. And you know, the
Speaker 7: companies are saying, hey, look, if if you need more
Speaker 7: safeguards and more mitigation of whatever risks you think there are,
Speaker 7: we're all about addressing that and fixing that. We have
Speaker 7: decades of experience with building these systems, running these systems.
Speaker 7: In every country in which they're operating, they have the
Speaker 7: same set of radar and military needs and national security needs,
Speaker 7: and if there are issues out there, they can be
Speaker 7: dealt with.
Speaker 3: Pat Despite the fact that the Trump administration is losing
Speaker 3: in court, court battle after court battle over the wind farms,
Speaker 3: the shift in policy under Trump, I mean even the
Speaker 3: so called One Big Beautiful Bill sped up the phase
Speaker 3: out of federal tax credits for offshore wind projects. So
Speaker 3: has the policy shift and this general assault on wind
Speaker 3: power increase the risks of investing in it so that
Speaker 3: it's unlikely that you'll have new projects. The ones that
Speaker 3: are ongoing now they'll fight to keep, but new projects,
Speaker 3: I mean, I think the government's not even going to
Speaker 3: approve new projects.
Speaker 7: Yeah, yes, that is the bigger threat here that they're
Speaker 7: going to discourage investment. And when you think about it,
Speaker 7: this is foreign investment. This isn't costing US companies or
Speaker 7: US taxpayers and nickel to build these things. This is
Speaker 7: free money that we're getting, and it's billions and billions
Speaker 7: of dollars. And oh, by the way, if you think
Speaker 7: about it, just simply delaying these five projects at two
Speaker 7: million dollars a day, who do you think is ultimately
Speaker 7: going to pay for that? The consumers of electricity. And
Speaker 7: so there are studies out there saying an extended delay
Speaker 7: like this could cost consumers billions of dollars because of
Speaker 7: the amount of electricity that these would generate. So the
Speaker 7: chilling effect on investment is the goal of this administration.
Speaker 7: I mean, they don't really care if they lose in court.
Speaker 7: They'll just keep appealing if they can, all the way
Speaker 7: to the Supreme Court if they can. But their real
Speaker 7: goal is to stifle renewable energy and particularly win and
Speaker 7: I hate to say it, but they're succeeding in that.
Speaker 7: You know, that's not in the national interest, if not
Speaker 7: in the national security interest, to cripple a major source
Speaker 7: of electricity at a time when we're seeing escalating demands
Speaker 7: for it, How does that make any sense at all?
Speaker 3: Well, that's a question I certainly can't answer, but thanks
Speaker 3: so much Pad for all your answers today. That's Professor
Speaker 3: Pat Parento of the Vermont Law and Graduate School coming
Speaker 3: up next on the Bloomberg Law Show. Yes, Dominions will
Speaker 3: be taking the eyes at the Winter Olympics after a
Speaker 3: music licensing saga is resolved, and how the Olympic Committee
Speaker 3: is aggressively targeting the unauthorized commercial use of its trademarks.
Speaker 3: And it's not just the bic rings and the torch,
Speaker 3: it's also phrases like let the Games begin, I'm June
Speaker 3: Grosso and you're listening to Bloomberg. It was in doubt
Speaker 3: for a while, but it now appears that those mischievous
Speaker 3: Minions will be taking the ice at the Winter Olympics.
Speaker 3: After all, the cheeky characters have been causing a musical
Speaker 3: nightmare for Spanish figure skater Tomasquarino Saubat. He's been using
Speaker 3: a medley from the Minions films while dressed in their
Speaker 3: iconic blue overalls and yellow T shirt in its performances
Speaker 3: all season, believing he'd gone through the proper protocols to
Speaker 3: use the music, but then last week NBC Universal told
Speaker 3: him he didn't have permission to use the music, and
Speaker 3: Guarino thought he'd have to scrap his whole routine. But
Speaker 3: there was an outpouring of support for the skater on
Speaker 3: social media, with people posting hashtag let the Minions skate
Speaker 3: and Universal Studios had a change of heart. Joining me
Speaker 3: is intellectual property litigator Terrence Ross, a partner at Katon
Speaker 3: Muchen Rosaman Jerry. Some people were calling this Minions Gate,
Speaker 3: and I just don't understand why Universal didn't give him
Speaker 3: permission in the first place. It seems like having the
Speaker 3: Minions represented at the Olympics would be a plus for
Speaker 3: the franchise and the studio.
Speaker 1: Yes, I agree with that completely. Apparently he had flown
Speaker 1: under the radar of the copyright folks at Universal for
Speaker 1: most of the season, but now that he's in the Olympics,
Speaker 1: and I guess NBC has got the coverage rights to
Speaker 1: the Olympics and they're owned by Universal.
Speaker 8: Probably somebody in the sports.
Speaker 1: Broadcasting called it to the attention and Universal, this guy's
Speaker 1: using the Minions music.
Speaker 8: Did you approve it, and Universal had not.
Speaker 1: The Spanish skater had never obtained advance approval. The music
Speaker 1: is copyrighted, as was the film, as all music is copyrighted.
Speaker 1: And a friend of mine said, well, yeah, but it's
Speaker 1: the Olympics aren't taking place in the United States. They're
Speaker 1: taking place in Italy, and I says, come on, guys,
Speaker 1: in the modern world, we have international treaties where almost
Speaker 1: all the countries sign up to and allow enforcement of
Speaker 1: their copyrights in other countries through the simplicity of filing
Speaker 1: a couple pieces of paper with an international organization. So
Speaker 1: that's not going to excuse this guy.
Speaker 8: And at some.
Speaker 1: Point during the last week or so it seemed like
Speaker 1: he was really not going to be able to perform
Speaker 1: his music.
Speaker 3: Well, this got a lot of attention, a lot of
Speaker 3: negative attention, I think for NBC Universal, and there was
Speaker 3: a lot of sympathy on social media for the ice skater.
Speaker 3: So perhaps Universal saw which way the wind was blowing
Speaker 3: and did a turnaround, allowing him to use the music
Speaker 3: after all.
Speaker 1: Ultimately, that's what the Spanish skater said. He thanked Universal
Speaker 1: for letting him do it. He thanked all his fans
Speaker 1: for calling out the problem and getting Universal.
Speaker 8: Pay attention to it.
Speaker 1: You know, it just comes back to the point he
Speaker 1: made at the beginning, Why would you not want your
Speaker 1: music being used in a setting like that and getting
Speaker 1: all the international exposure. I guess Universal was taking the
Speaker 1: position that Minions and the various Minions movies are so
Speaker 1: well known that they don't need any more exposure from
Speaker 1: some ice skater in Spain.
Speaker 8: And what happens if he falls down journey to music?
Speaker 1: You know, I couldn't see that kind of conversation going
Speaker 1: on within the Universal legal department, and so they sent
Speaker 1: out a cease and desist letter and thankfully sanity prevailed
Speaker 1: and he's been authorized to use it. I was dying
Speaker 1: to see if he got some sort of written license agreement,
Speaker 1: but that hasn't shown up at the press.
Speaker 8: But yeah, he gets to use it now.
Speaker 9: And you know, it's funny because if you're making a movie,
Speaker 9: if you're making a television show, there's literally a person
Speaker 9: who gets credit on the screen who's called the music supervisor,
Speaker 9: and they're not the people who make the music or
Speaker 9: write the score.
Speaker 1: Music supervisor references the person who's responsible for getting all
Speaker 1: the licenses for the music, and so it's literally a
Speaker 1: job in the movies and television, but apparently in ice
Speaker 1: dancing they haven't gotten that for yet.
Speaker 3: Skaters used to use classical music that's in the public
Speaker 3: domain and didn't need clearance, but then in twenty fourteen,
Speaker 3: the International Skating Union relaxed its rules to allow contemporary
Speaker 3: music with lyrics. But when you use contemporary music that's
Speaker 3: not in the public domain, you need to get permission.
Speaker 3: And as you said, it's so complicated because one piece
Speaker 3: of music can involve getting how many authorizations.
Speaker 8: You know, I feel sorry for them.
Speaker 1: We've had this discussion before in the context of documentaries,
Speaker 1: where a documentary filmmaker wants to use a short piece
Speaker 1: of music, they just want to be cautious. Arguably they
Speaker 1: could claim fair use, but they want to be cautious,
Speaker 1: so they ask for advance approval. And you know, filmmakers
Speaker 1: are typically not lawyers, just as ice skaters typically aren't lawyers,
Speaker 1: and the bureaucratic process of trying to get it is
Speaker 1: very challenging. And then there's the problem at the other end.
Speaker 1: You jump through all the hoops, you ask for permission,
Speaker 1: and they go, what you're not paying us for this?
Speaker 1: And then they try to collect, you know, a couple
Speaker 1: bucks out of you, and it's a challenging process. And
Speaker 1: I feel sorry for these ice skaters to put a
Speaker 1: beautiful performances quite frankly, that they're not lawyers and they've
Speaker 1: got the Olympic Committee or somebody should figure out a
Speaker 1: way to get these guys some help.
Speaker 3: Well, apparently they've been trying but not succeeding. Sabate, for example,
Speaker 3: said he followed the prescribed procedure forgetting his music approved
Speaker 3: through a system called click clear in August. So obviously
Speaker 3: there's a lot more or work to be done there. Jerry,
Speaker 3: let's turn out to the Olympics and the way the
Speaker 3: Olympic Committee guards its trademarks so aggressively and they have
Speaker 3: a lot to guard. Tell us about the sort of
Speaker 3: IP regime that's special to the Olympics.
Speaker 8: Well, it's a great legal question.
Speaker 1: And every couple years when we either had the Winter
Speaker 1: Olympics or Summer Olympics, the Olympic Committee literally sends out
Speaker 1: notices about six months ahead of time warning people, and
Speaker 1: they post things on their website and they are very
Speaker 1: aggressive in enforcing their intellectual property rights. But it's a
Speaker 1: completely different regime than what we usually talk about June.
Speaker 1: It's not under the Landham Act, which is the name
Speaker 1: of the United States Trademark Lass. A number of years ago,
Speaker 1: Congress passed a law entitled the Ted Stevens Olympic and
Speaker 1: Amateur Sports Act, and it.
Speaker 8: Is very unique.
Speaker 1: It's thirty six US Code Section twenty two oh five
Speaker 1: oh six, and what it does is set up a
Speaker 1: special intellectual property rights regime for the United States Olympic Committee.
Speaker 1: And it says that the five rings, you know, the
Speaker 1: international symbol of the Olympics, the five rings also the
Speaker 1: Pan American sports symbol, which I'm less familiar with. The
Speaker 1: words Olympic, OLYMPIAD, Paralympic, PARALYMPIAD, pan American, parapan American, all
Speaker 1: those words are all exclusively within the use of the
Speaker 1: United States Olympic Committee.
Speaker 8: I mean, has nothing to do with the trademark laws.
Speaker 1: The Congress has simply taken this group of words and
Speaker 1: symbols and given them to the United States Olympic Committee.
Speaker 1: Incredibly unusual. It's the only ball like that I know
Speaker 1: of in the United States.
Speaker 3: I was looking at the guidelines that they have on
Speaker 3: a website entitled Commercial and brand usage guidelines, and I
Speaker 3: found some of the trademarks really surprising. For example, they've
Speaker 3: trademarked the phrase let the Games begin. I mean that
Speaker 3: seems so generic. Let the Games begin is used in
Speaker 3: a lot of different contexts, not just in the Olympic realm.
Speaker 1: You're absolutely right. Now, there is one distinction within the law.
Speaker 1: Specific words are set aside and you just can't use
Speaker 1: them period. Now there's a couple exceptions to that. If
Speaker 1: you're in that part of the state of Washington where
Speaker 1: the town of Olympia is, and I guess there's a
Speaker 1: set of mountains there, cascades mountains, and you do business there,
Speaker 1: you can use the word Olympic or Olympia, and you
Speaker 1: can also use the word Olympics Olympia for a sportscaster
Speaker 1: talking about the games in a non commercial context. So
Speaker 1: that's one part of the regime. The other part of
Speaker 1: the regime is there's this very broad provision that says,
Speaker 1: i'll just read it here. Any trademark, trade name, sign, symbol,
Speaker 1: or insignia falsely representing association with their authorization by the
Speaker 1: International Olympics Committee also violates the law. Now that's the
Speaker 1: a little bit different from using the word Olympics or
Speaker 1: pan Olympics or para Olympics in those cases like you
Speaker 1: gave the example, let the Games begin, that's not one
Speaker 1: of the words exclusively consigned to the Olympic Committee. But
Speaker 1: they can still come after you under this other provision
Speaker 1: in that it suggests an association with the Olympics that
Speaker 1: is not true.
Speaker 8: It's harder to prove.
Speaker 3: That, though, Terry, I've been reading about what the Olympic
Speaker 3: Committee characterized as ambush marketing. There were Subway commercials that
Speaker 3: showed Michael Phelps swimming across an animated map toward Canada
Speaker 3: during the Vancouver Games and the voiceover said where the
Speaker 3: action is this winter. The Olympic Committee said it was
Speaker 3: an attempt to falsely associate Subway with the Olympics as
Speaker 3: a sponsor.
Speaker 8: In the Rio Games.
Speaker 1: There were a lot of billboard advertising that did the
Speaker 1: same sort of thing, and the Olympic Committee went crazy
Speaker 1: over that. There was a case in the Supreme Court
Speaker 1: that conceals at this statute number of years ago, and
Speaker 1: the statute was challenged as being the violation of the
Speaker 1: First Amendment and being unconstitutional, and the Supreme Court said no,
Speaker 1: it's not as long as it has to do with
Speaker 1: commercial use. And you know, Michael Phelps doing a subway
Speaker 1: commercial would be a commercial use. They have an absolute
Speaker 1: right to these words. And the Supreme Court, you know,
Speaker 1: looked at the legislative history and said, look, the whole
Speaker 1: reason we have this law is so that sponsors will
Speaker 1: pay money to the Olympic Committee to use these marks,
Speaker 1: and that will pay for our athletes to compete in
Speaker 1: a competitive manner abroad. And when other companies undercut that,
Speaker 1: you're really undercutting the United States Olympic effort.
Speaker 8: Supreme Court came right out and.
Speaker 1: Said that that particular suggestion let the games begins would
Speaker 1: have to be tested under some sort of confusion standard. Now,
Speaker 1: the Supreme Court, in the same case called San Francisco
Speaker 1: Arts and Athletics versus the US Olympic Committee, the Supreme
Speaker 1: Court said, you've got to look at the statute broadly,
Speaker 1: because Congress has had a broad protection and oh, by
Speaker 1: the way, we don't apply the traditional Lanham Act evaluation standard,
Speaker 1: which is likelihood of confusion. Now you sometimes see that
Speaker 1: still being argued, but I don't know how else do
Speaker 1: you evaluate. That's a great example you gave and that
Speaker 1: would be very challenging. The Olympic Committee would probably go
Speaker 1: after somebody for that, but I think they might have
Speaker 1: trouble convincing a judge depending on the usage.
Speaker 3: So one of my favorite parts of the commercial use
Speaker 3: guidelines was please do not create your own version of
Speaker 3: any USOPC trademarks. For example, the Olympic symbol should not
Speaker 3: be simulated using pizzas, onion rings, tires, beverages, basketball, snowflakes,
Speaker 3: triangle smiley faces, fruits and vegetables, et cetera. I had
Speaker 3: to laugh that they actually put all that in their
Speaker 3: commercial guidelines on the website.
Speaker 1: It's just testament to the ingenuity of the American populists
Speaker 1: and their ability to circumvent the US laws.
Speaker 8: Arguably, the Olympic Committee is correct there.
Speaker 1: Because they have an absolute right to that five rings
Speaker 1: symbol and it's not constrained in any way by likelihood, confusion,
Speaker 1: or anything else if it's being used in some sort
Speaker 1: of commercial A couple of years ago, there as a
Speaker 1: guide in Minnesota who started using hashtag and then various
Speaker 1: Olympic marks and claimed that the hashtag wasn't in the statute.
Speaker 8: You know that the.
Speaker 1: Statute it protects Olympics, it protects Olympiad. It doesn't protect
Speaker 1: hashtag Olympic, which I thought was very creative. Americans are
Speaker 1: just very ingenious when it comes to getting around laws.
Speaker 3: I'm so sure he got a cease and desist letter.
Speaker 3: Thanks so much, Terry. That's intellectual property litigator Terrence Ross.
Speaker 3: And that's it for this edition of The Bloomberg Law Show.
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