Speaker 1: This is Bloomberg Law with June Bresso from Bloomberg Radio.
Speaker 1: Thirteen days of testimony from undercover agents and informant and
Speaker 1: to co defendants who pleaded guilty. There were also the
Speaker 1: secretly recorded conversations, violent social media posts and chat messages. Yet,
Speaker 1: in a stunning defeat for the government, the jury failed
Speaker 1: to convict any of the four defendants in the plot
Speaker 1: to kidnap Michigan Governor Gretchen Whitmer. U s attorney Andrew
Speaker 1: Bird said he believed the prosecution presented a strong case.
Speaker 1: Obviously we're disappointed with the outcome. I thought we had
Speaker 1: the jury to convict fandor's about basically events we put forward.
Speaker 1: But we still believe in the jury system. The defense
Speaker 1: lawyers portrayed the men as unsophisticated weekend warriors, often stoned
Speaker 1: on marijuana and prone to wild talk, who were entrapped
Speaker 1: by the FBI and it's sting operation. Michael Hills represented
Speaker 1: Brandon Concerta, who was acquitted. Our governor was never in
Speaker 1: any danger, and I think the jury, even though they
Speaker 1: didn't get all of it, you know, they smelled enough
Speaker 1: of it. I think what the FBI did is unconstanably.
Speaker 1: This is what I think, and I think the jury
Speaker 1: just sent them a message loud and clear. My guest
Speaker 1: is Matthew Schneider, former U S Attorney for the Eastern
Speaker 1: District of Michigan and a partner at Huntingmanon. Many were
Speaker 1: stunned by the verdict. Were you I was, like a
Speaker 1: lot of people were, And I'm a former prosecutor. I
Speaker 1: work as a defense attorney, and prosecutors and defense attorneys
Speaker 1: alike were stunned at this, and they said that openly
Speaker 1: it was surprising. The government put forth a very strong
Speaker 1: case and it's not the result that a lot of
Speaker 1: people predicted. Two were acquitted, they were hung on another two.
Speaker 1: What were the differences that they would equip some and
Speaker 1: hang on others. There were some significant differences. The two
Speaker 1: that received the hung verdict, those were viewed as kind
Speaker 1: of the ringleaders of this, and the jury found that
Speaker 1: there was not enough evidence to convict them. The two
Speaker 1: that were acquitted. As for those defendants, those were the
Speaker 1: defendants who did not actually go to the governor's house
Speaker 1: and scope it out. There was an event where people
Speaker 1: went to the governor's house or residents and kind of
Speaker 1: watched it, fouled around the driveways and used night vision
Speaker 1: goggles and tried to scope out the place. Well, those
Speaker 1: two defendants, they didn't participate in that, and that might
Speaker 1: have been a dividing line that the jury felt that
Speaker 1: they should be acquitted. Daniel Harris, one of the two acquitted,
Speaker 1: took the stand in his own defense, a risky move
Speaker 1: that apparently worked. What did you see in his testimony? Well,
Speaker 1: we don't know if that's what worked or not, because
Speaker 1: the jury hasn't said. The jurors went out and they
Speaker 1: didn't speak to anybody, So we don't know if it
Speaker 1: was because they believed in the entrapment theory of the defense,
Speaker 1: or that they believed in the defense theory that these
Speaker 1: guys were just kind of making it up in big talkers,
Speaker 1: or that they were kind of, you know, stoned and
Speaker 1: not very sophisticated and not clever enough to actually do this.
Speaker 1: We're not sure. We do know that Harris was acquitted
Speaker 1: of the weapon's charge, which was possessioned of a short
Speaker 1: barrel rifle, and that charge seemed to be that there
Speaker 1: was plenty of evidence for that and for the jury
Speaker 1: to acquit him of that seems quite striking because there
Speaker 1: was plenty of proofs that he had the gun. It's
Speaker 1: not like the kidnapping plot where there was discussion either
Speaker 1: you had the gun or you didn't, and they found
Speaker 1: that he didn't and was he arrested with the gun
Speaker 1: or not. There was a lot of discussion about the
Speaker 1: type of gun it was and the position it was,
Speaker 1: and whether or not it was in pieces at the time.
Speaker 1: But you know a weapon even if it's in separate
Speaker 1: pieces that you know the receiver. If the receiver is
Speaker 1: what you have, that's still classified as a weapon under
Speaker 1: federal law. But there was explanation given in this testimony
Speaker 1: that always in different pieces, and perhaps that's something that
Speaker 1: the jury took into account. So there were thirteen days
Speaker 1: of evidence undercover FBI agents and FBI informant to co
Speaker 1: defendants who pleaded guilty. They were secretly recorded conversations, violence,
Speaker 1: social media posts, etcetera, etcetera. So it seemed like the
Speaker 1: prosecution had a lot of evidence. Where did it fail? Well,
Speaker 1: they did have a lot of evidence. But if you're
Speaker 1: going to be looking at this case in the future
Speaker 1: as to how this case was brought, it will be
Speaker 1: a big question about did they have to take down
Speaker 1: this case. Now, did they have to end the investigation
Speaker 1: when they did, and what would have been the result
Speaker 1: if instead of ending the investigation they would have continued.
Speaker 1: Would they have developed, for example, evidence from the defendants
Speaker 1: that they had set a firm date for the kidnapping,
Speaker 1: which did not happen in this case. But if they
Speaker 1: would have kept the investigation of lives, maybe they would
Speaker 1: have gotten more evidence convince the jury. Now, we all
Speaker 1: understand that investigations sometimes have to be taken down for
Speaker 1: officers safety and things like that, but still that's going
Speaker 1: to be a very nagging question in the eyes of
Speaker 1: the Justice Department for many cases moving forward. We just
Speaker 1: go back a bit and explain when they decided to
Speaker 1: end the FBI investigation. At what point they ended it
Speaker 1: as the defendants were walking into a restaurant to have launch. Okay,
Speaker 1: so that appears to be an innocuous time, but it
Speaker 1: was a time when law enforcement could get together and
Speaker 1: it was an open area where they could all swoop
Speaker 1: in and have a safe arrest. That left out some
Speaker 1: evidence that I think might have come forth if they
Speaker 1: would have continued the recording devices and continued the conversations
Speaker 1: the FBI ending the operation before they had evidence of
Speaker 1: the defendants making definitive plans to kidnap the governor. How
Speaker 1: did that help the defense? That is the defense argument,
Speaker 1: and that they're saying, this is all a bunch of talk.
Speaker 1: They didn't have any actions, and there's nothing that the
Speaker 1: government can show for it. Now, look, there's still two
Speaker 1: defendants still to be retried, and there are two defendants
Speaker 1: who pleaded guilty. And when you plead guilty in federal court,
Speaker 1: you go into the courtroom and you say I'm pleading
Speaker 1: guilty because I am guilty. And those defendants testified and
Speaker 1: they said that they were guilty of this conspiracy. They
Speaker 1: did commit the crime, and they were testifying so that
Speaker 1: they could help the prosecution and hopefully get a sentence reduction.
Speaker 1: That makes it even more surprising that the jury didn't
Speaker 1: believe them. Oftentimes, jurors don't like cooperators, they don't like
Speaker 1: people who were once on one side and then switched
Speaker 1: to the other side. The defense painted them as liars
Speaker 1: who were only trying to get a sentence reduction, and
Speaker 1: that it happens in every case. This case, also, however,
Speaker 1: had undercover FBI informant, There was an informant, there was
Speaker 1: an agent. There was plenty of testimony here and plenty
Speaker 1: of evidence. But the defense theory, again, we don't know
Speaker 1: because we don't know what the jury has to say,
Speaker 1: but it appears that it worked very favorable in the
Speaker 1: defense's mind. The lawyer for Brandon concert A blamed overly
Speaker 1: aggressive FBI informans. He said, I think what the FBI
Speaker 1: did is unconscionable, and I think the jury just sent
Speaker 1: them a message loud and clear. Is that the case
Speaker 1: because they hung on two of the defendants. Well, if
Speaker 1: they were loud and clear unconscionable, you would have had
Speaker 1: four acquittals, and we didn't have that. What we had
Speaker 1: is a jury saying I can find these two who
Speaker 1: were not present at the stake out of the Governor's
Speaker 1: house not guilty, but I'm not sure, and we can't
Speaker 1: reach a verdict on the other two. And we also,
Speaker 1: as I indicated, had to be im plead guilty. So
Speaker 1: that really remains to be seen. The government is going
Speaker 1: to go back to square one and try this case again,
Speaker 1: which is not unusual. I mean John Gotti, for example,
Speaker 1: was tried four times by the Justice Department, So it's
Speaker 1: not surprising that they would give this another shot with
Speaker 1: a new jury, rush instructions, fresh arguments. Do you think
Speaker 1: the prosecution will try to present the case differently, Yes,
Speaker 1: I do, because the jury asked a lot of questions
Speaker 1: about the weapons involved in the explosives. Well, jurors don't
Speaker 1: ask questions if they understand all the evidence and the
Speaker 1: presentation was flawless. They only ask questions if they don't
Speaker 1: understand what just took place. And so I'm certain that
Speaker 1: the government will be doing a closer explanation about the
Speaker 1: bombs and that type of evidence in this next retrial.
Speaker 1: The jury pool was drawn from a twenty two county
Speaker 1: region in western and northern Michigan that is largely rural,
Speaker 1: Republican and conservative. Is it possible that the prosecution just
Speaker 1: can't get a jury that will convict in this case, Well,
Speaker 1: the prosecution picked a jury along with the defense, and
Speaker 1: certainly some of the members of the jury, a lot
Speaker 1: of them actually owned weapons. A lot of them expressed,
Speaker 1: you know, some mistrust for government entities, but not overly
Speaker 1: so that would kick them off the jury a pool.
Speaker 1: But I think you have a lot of people in
Speaker 1: this jury pool who don't like the government, and you
Speaker 1: know you have a constitutional right to dislike Governor Whitmer
Speaker 1: or even hate her. That's your constitutional right. People hate
Speaker 1: people love her. The fact is is what no one
Speaker 1: should take from this verdict is that it's okay to
Speaker 1: do harm to a public official, because it's not okay
Speaker 1: to threaten to kidnap Governor Whitmer. The only thing you
Speaker 1: can take from this verdict is that the government failed
Speaker 1: to convince the jury beyond a reasonable doubt. Some politicians
Speaker 1: have expressed fears about these acquittals. So, for example, Michigan
Speaker 1: State Representative Lori Phutsky tweeted that a man who threatened
Speaker 1: to kill her in was acquitted. Quote, the next time
Speaker 1: you ask why we can't get good people to run
Speaker 1: for office, consider today's verdict. This won't be taken seriously
Speaker 1: until someone dies. Do these acquittals send out a message
Speaker 1: that you're not going to be held accountable. That's going
Speaker 1: to be a great question after the retrial of this case,
Speaker 1: because these two defendants are still out there now. If
Speaker 1: those defendants are found not guilty, a lot of questions
Speaker 1: will be asked about the safety of public officials. But
Speaker 1: we're not quite there yet, so I don't think we're
Speaker 1: quite in the position to make those calculations or conclusions
Speaker 1: so far. Did you see a great difference in the
Speaker 1: way the defense attorneys handled the case. Each of the
Speaker 1: defense attorneys took a different, slightly different approach. Some of
Speaker 1: them really hammered on the fact that there were government informants,
Speaker 1: and the government informants and the FBI was driving this
Speaker 1: case from the beginning to the end. Maybe that's what
Speaker 1: the jury believed and caught onto. Other times, defense attorneys
Speaker 1: really hit on the issue that the defendants were not competent.
Speaker 1: They raised a bunch of other things that they could
Speaker 1: do to the governor other than kidnapper, such as that
Speaker 1: they would cut all the trees down between Indiana in
Speaker 1: Michigan to prevent law enforcement from getting there fast enough. Well,
Speaker 1: it's really fanciful. They also talked about tying a balloon
Speaker 1: to the governor and toting her away. No one really
Speaker 1: believes that that could happen. So the defense theory was,
Speaker 1: if they're going to make up those type of theories
Speaker 1: that are really impossible, kidnapping the governor is just another
Speaker 1: one of those theories and it shouldn't be believed, and
Speaker 1: that was part of the arguments made in this case.
Speaker 1: I guess this does show that the jury really considered
Speaker 1: each of the defendants individually. They certainly did, and if
Speaker 1: they hadn't, this would have been a quick verdict. But
Speaker 1: they came back over several days. They took a lot
Speaker 1: of time, They asked questions that were very specific to
Speaker 1: the defendant's charged with the weapons, for example, and it
Speaker 1: looks like they did deliberate and take a lot of time.
Speaker 1: Of course, you know, when the jury came back and
Speaker 1: they couldn't reach a verdict, the expressions on their faces
Speaker 1: was certainly one of frustration. And if you have to
Speaker 1: sit inside a room with twelve people that you don't
Speaker 1: know for five days straight and you're disagreeing with them,
Speaker 1: it has to be very frustrating, definitely. So how big
Speaker 1: a blow would you say this is to the Justice Department,
Speaker 1: which has made domestic terror of priority after January six?
Speaker 1: It certainly is not helpful, right. The Justice Department definitely
Speaker 1: wanted to have convictions here. They were touting the security
Speaker 1: and strength of their evidence. It didn't work out for them.
Speaker 1: One thing that you should think about as well, is
Speaker 1: it's not just what they said about the evidence, but
Speaker 1: when the evidence was played in court it came out
Speaker 1: a little bit differently. For example, some of these threats
Speaker 1: towards Governor Whimer. You know, when they actually played the
Speaker 1: tape of the recording, the defendants were laughing. We don't
Speaker 1: laugh if you're serious about that, and so there was
Speaker 1: some reason to believe that there was some joking going
Speaker 1: on about this. Of course, there were other times when
Speaker 1: very sinister things were said about hurting the governor and
Speaker 1: no one was laughing at all. So on both sides,
Speaker 1: each side had some arguments there is there anything the
Speaker 1: government can do on the retrial to make the witnesses
Speaker 1: the informants more believable, But they can't go back and
Speaker 1: change the evidence. Then what's done is done is because
Speaker 1: this case was taken down at this particular time, with
Speaker 1: these particular defendants involved, and so that can't be changed.
Speaker 1: They can, however, have different questions or additional questions asked
Speaker 1: for potential jurors. Some of the jurors in this trial
Speaker 1: were asked very very little. In fact, one of the
Speaker 1: last people into the jury box, I think he was
Speaker 1: asked two questions. And once I heard that, and I
Speaker 1: was listening to the testimony, I thought, who the heck
Speaker 1: is this guy? We don't even really know who this
Speaker 1: person is, and now he's on the jury. I don't
Speaker 1: know if he favors the government or he favors the defense.
Speaker 1: If you were a trial lawyer, you would step up
Speaker 1: and say, hold on a second year, honor. I've got
Speaker 1: a few more questions, and I think we will probably
Speaker 1: see the at on both sides in the future. Does
Speaker 1: this showcase the difficulties the government has with infiltrating right
Speaker 1: wing groups and developing cases without infringing on First and
Speaker 1: Second Amendment rights? It certainly does. And this is a
Speaker 1: real fine line because it's not the first time that
Speaker 1: the government has brought a case that is similar to this,
Speaker 1: where it's churched people with government extremism and they've found
Speaker 1: acquittals at the end of the road. So yes, it's
Speaker 1: certainly something that the government has to take into account
Speaker 1: that people have the First Amendment, they have the Second Amendment,
Speaker 1: and in fact, this was covered in the trial. When
Speaker 1: you are making a bomb for fun, because some people
Speaker 1: do that, and you're you're just making explosives. That's not
Speaker 1: necessarily a weapon of mass destruction. But there was testimony
Speaker 1: about the fact that when you take a bomb or
Speaker 1: an explosive device and you put items in it like
Speaker 1: bbs or pennies are things that can fragment and injure people.
Speaker 1: That's a different type of weapon. So all of these
Speaker 1: things the government will be looking at in the future.
Speaker 1: And it is truly a balanced thing between knowing when
Speaker 1: you're prosecuting somebody who's done wrong and prosecuting somebody improperly
Speaker 1: because they've just exercised their First or Second Amendment rights. Matthew,
Speaker 1: hasn't been decided that they're going to retry them, or
Speaker 1: is there any question about it. It hasn't been formally decided,
Speaker 1: but nor What always happens after this is the judge
Speaker 1: enters a verdict of mistrial, and that hasn't yet happened
Speaker 1: on the dock at Chet, but the judge will do that,
Speaker 1: and then the judge will study scheduling date for when
Speaker 1: the next dates are. The current U S Attorney in
Speaker 1: the Western District indicated that we have more work to
Speaker 1: do and we've got another trial coming up, So he's
Speaker 1: telegraphed that, and I would think, given the Justice Department's
Speaker 1: past record on retrials, that there's really no reason that
Speaker 1: they wouldn't retrial this case. Again, given the fact that
Speaker 1: the jury returned to split verdict and opened the door
Speaker 1: for that to happen. What kind of message would it
Speaker 1: send out if the government didn't retry these two It
Speaker 1: would show that they're giving up on the case. And
Speaker 1: you know, some in the defense bar would say that's good.
Speaker 1: They're realizing the conclusion that the FBI and the government
Speaker 1: overreached and they should give up. And certainly that is
Speaker 1: an argument that has been put forth. But another argument
Speaker 1: is is that they have another ability to talk with
Speaker 1: the jurors now, this time only with two defendants, and
Speaker 1: that will be easier than with four defendants, will be
Speaker 1: less confusing, there'll be less evidence in the record. They'll
Speaker 1: be able to focus only on these two folks and
Speaker 1: then let the chips ball where they may. Thanks Matthew.
Speaker 1: That's Matthew Schneider, former U S Attorney for the Eastern
Speaker 1: District of Michigan and a partner at Honigman. President Biden
Speaker 1: is coming off the victory of Katangi Brown Jackson's confirmation
Speaker 1: to the Supreme Court, with a backlog of lower court
Speaker 1: vacancies that don't have appending nominee and the midterm elections
Speaker 1: ahead that could end the democrats narrow Senate majority. Joining
Speaker 1: me is Madison Alder Bloomberg Law reporter start by telling
Speaker 1: us how quickly Biden moved to fill judicial vacancies in
Speaker 1: his first year in office. In his first twelve months
Speaker 1: in office, Biden outpaced every president since John F. Kennedy
Speaker 1: with his appointment. He moved at a really record paced here,
Speaker 1: even outpacing Trump, who definitely made judicial nominations a priority.
Speaker 1: So Biden got off to a really good start in
Speaker 1: year one. In your two, he now had a Supreme
Speaker 1: Court va can see the fill and that took up
Speaker 1: a lot of time for the White House and for
Speaker 1: the Senate to deal with. So now Biden is looking
Speaker 1: at a lot of vacancies to fill this year, and
Speaker 1: that's made a little bit more difficult with mid terms
Speaker 1: right around the corner. Has Biden made any new lower
Speaker 1: court nominations since Justice Stephen Bryan announced his retirement. Yes,
Speaker 1: on February second, he made just one nomination to a
Speaker 1: circuit court, but really nominations have been to and far
Speaker 1: between during that process. So now Biden is looking at
Speaker 1: several vacancies at the circuit court level, about nine team
Speaker 1: that don't have a nomination pending, because he definitely has
Speaker 1: an opportunity to make an impact. They're looking towards the
Speaker 1: end of the year. Was it deliberate that he didn't
Speaker 1: make any new nominations or was it because of the
Speaker 1: whole process of having a Supreme Court nomination and shepherding
Speaker 1: that through. I think the Supreme Court nomination takes up
Speaker 1: a lot of oxygen in the room. But if Biden
Speaker 1: wants to make an impact on lower court nominations, new
Speaker 1: nominations are going to have to come from the White
Speaker 1: House here pretty soon. To give the Senate nomination to
Speaker 1: work on before mid terms kind of take over and
Speaker 1: take up a lot of senator's time when they're when
Speaker 1: they're at home campaigning. So let's talk about how many
Speaker 1: openings there are. There are three seats on the ninth
Speaker 1: and first circuit, this is without a nominee, two seats
Speaker 1: on the first, second, fourth, fifth, and seventh, and one
Speaker 1: seat on the third, sixth, tenth, and d C circuit.
Speaker 1: That's a lot of seats. Is that just waiting for
Speaker 1: the three months for Jackson's nomination to come through or
Speaker 1: did they slow down before that? So these have been
Speaker 1: building up, Definitely, These didn't just occurred during Jackson's nomination
Speaker 1: and far announcement that he would retire UM. But it
Speaker 1: is building up now and some of these have built
Speaker 1: up during that time period. So now this is this
Speaker 1: is what the White House is really going to be
Speaker 1: looking to towards the end of this year. Tell us
Speaker 1: about the most high profile vacancy is Jackson's seat on
Speaker 1: the d C circuit and there's already one nominee in play.
Speaker 1: He set there. Tell us about that nominee first. So
Speaker 1: the nominee in place there already is Michelle Child. She
Speaker 1: is a South Carolina's District judge Seddle judge UM in
Speaker 1: South Carolina, and she was being considered, if you remember,
Speaker 1: as a candidate for the Supreme Court. Uh, they paused
Speaker 1: her nomination process. She was actually going to have a hearing.
Speaker 1: The Judiciary Committee had planned to have her have a hearing,
Speaker 1: and when she was under consideration, so the seat, they
Speaker 1: paused that. So her nomination will be one of the
Speaker 1: circuit nominations the Judiciary Committee can address when it comes
Speaker 1: back after after recess. But then Biden also has another
Speaker 1: opportunity on on the DC Circuit, and that's Cantanti Brown
Speaker 1: Jackson's seat on the DC Circuit. Her elevation opens up
Speaker 1: another vacancy and he now has two seats he can
Speaker 1: he can fill on on that court, which is often
Speaker 1: seen as the second highest because it involves a lot
Speaker 1: of disputes in Balti agencies in Congress, and it's a
Speaker 1: it's a theme, is a very important court. Some groups
Speaker 1: are already posturing and making suggestions about what they want
Speaker 1: to see on that court. Right We just had a
Speaker 1: process where we were considering someone for that seat, and
Speaker 1: a lot of groups were making suggestions before Child was
Speaker 1: nominated about who they would like to see in in
Speaker 1: that kind of a role. I reported in September that
Speaker 1: Depect Cuta, who is the founder of boutique Appellent firm Um,
Speaker 1: and Karla Gilbride, who's a senior attorney at Public Justice,
Speaker 1: were both thought to be under consideration for that vacancy. Ultimately,
Speaker 1: Child was nominated, but given that they just considered nominated
Speaker 1: to the seat if there was anybody that was considered
Speaker 1: for that seat, that might be someone that they think
Speaker 1: about for this time around as well. I spoke to
Speaker 1: a couple of progressive groups, and you know, they would
Speaker 1: really like to see someone who maybe brings a different
Speaker 1: type of diversity to the Court than Child. The Child
Speaker 1: was criticized by progressives during that process of considering her
Speaker 1: for the Supreme Court for her representation of employers, and
Speaker 1: some of these progressive groups would like to see someone
Speaker 1: maybe with a pellet practice or a working administrative law
Speaker 1: work representing consumer interests. So those are some areas that
Speaker 1: are being talked about. Is a potential background, characteristics or
Speaker 1: experience for Biden's pick medicine who is doing the selecting
Speaker 1: of these nominees. So the DC circuit is unique in
Speaker 1: the fact that there's no senators that are attached to DC,
Speaker 1: so the White House doesn't have to deal with senators
Speaker 1: interest now at the circuit level, that hasn't been the
Speaker 1: practice for several years now. During the Trump administration, Republicans
Speaker 1: in the Senate stopped treating home state senators support as
Speaker 1: a veto on nominees, so that hasn't been the case
Speaker 1: at the circuit level for a few years now, but
Speaker 1: the DC Circuit has always been that way, and you know,
Speaker 1: even if the White House are reaching out to courtesy,
Speaker 1: that's not something that happens at the DC Circuit level
Speaker 1: just because there aren't senators there. So they really have,
Speaker 1: you know, kind of a blank slate here in terms
Speaker 1: of who they could select for for the seat. And
Speaker 1: there's some pressure to appoint the circuit's first Hispanic as well. Correct, Yeah,
Speaker 1: the Mexican American Legal Defense and Education Fund has apparded names,
Speaker 1: the reported names dividings for Judge David Tatle's seats, which
Speaker 1: is the seat that Michelle Child was nominated to. But
Speaker 1: now that there's another opening, uh, you know, they would
Speaker 1: like to see the court's first Hispanic appointed to that
Speaker 1: seat too. So that's another element for for the administrations
Speaker 1: to be considering here. The Judiciary Committee has split eleven
Speaker 1: Republicans eleven Democrats. Are Republicans causing delays when they don't
Speaker 1: vote for the nominees. Yes, there are a few nominees
Speaker 1: right now who are going to require a discharge petition
Speaker 1: on their nominations that we just saw this with Stanji
Speaker 1: bon Jackson nomination as well. This means the committee deadlocks
Speaker 1: and Ben Schumer files a discharged motion, and then that
Speaker 1: vote on the discharged motion is something that happens in
Speaker 1: the full Senate, So instead of having two votes on
Speaker 1: your nomination closer to end debate, in the final confirmation vote,
Speaker 1: you end up having three votes on the floor. So
Speaker 1: it just takes up a little bit more time, but
Speaker 1: ultimately these nominees can get confirmed since time seems to
Speaker 1: be of the essence. Now, do the people you've talked
Speaker 1: to think that it's possible for Biden to fill these
Speaker 1: nineteen circuit court seats plus depending ones before the mid terms? Yeah.
Speaker 1: I talked to John Collins, who's a professor at George
Speaker 1: Washington University who focuses on tracking judicial nominations, and he
Speaker 1: told me that he thinks that there is an opportunity
Speaker 1: for Biden to have a year like he had, but
Speaker 1: nominating people as soon as possible is going to be
Speaker 1: a really important piece of that and making sure that
Speaker 1: there are nominees in the pipeline for the Senate to consider.
Speaker 1: The Senate Judiciary Chair Dick Durbin said that Majority Leader
Speaker 1: Chuck Schumer has his hands full with the sixteen district
Speaker 1: and Appeals Court nominees awaiting votes on the Senate floor.
Speaker 1: So that procedural issue with six of them really takes
Speaker 1: up a lot of time on the Senate floor. It does.
Speaker 1: Each of these votes takes up real hours of the
Speaker 1: Senate time. And uh, Jeremy Durban told me as much.
Speaker 1: Schumer has his handsful in terms of getting these votes
Speaker 1: scheduled and and and the hours of that will take
Speaker 1: when they come back from recess. And then Durban in
Speaker 1: committee has about eight nominees to consider. But after those
Speaker 1: eight nominees he will have run out of his list
Speaker 1: from the White House, which is why the White House
Speaker 1: nominating more people to be seech is so important. Let's
Speaker 1: talk about the this circuits that could flip. Yeah, so
Speaker 1: Biden has one opportunity here to split a circuit, to
Speaker 1: change the balance on on a circuit. So the third circuit,
Speaker 1: there is one Republican appointee leaving that court. If Biden
Speaker 1: replaces that appointee, which is own, the circuit will be
Speaker 1: split seven seven. So we'll shift the balance there from
Speaker 1: a Republican appointed majority to a split courts and evenly
Speaker 1: divided court between Republican and Democratic appointees and I should
Speaker 1: make sure to note that a party of appointing president
Speaker 1: isn't always an exact proxy for judges ideology, but it
Speaker 1: is one of the only indicators that we have, so
Speaker 1: it can be helpful for judging how something like on
Speaker 1: bank rehearing will will go when the entire court is
Speaker 1: deciding an issue. The circuits that are now Republican majority
Speaker 1: are the Fifth, the six, seven, eight, and the eleventh.
Speaker 1: That's correct. Does it appear as if the mid terms,
Speaker 1: if the Republicans take back the Senate, how difficult is
Speaker 1: it going to be for Biden to get his nominees through.
Speaker 1: I'm glad you bout that up, because that is really
Speaker 1: what is being people moving. The progressive groups that I've
Speaker 1: I've spoken to our groups that watched judicial nominations, professors
Speaker 1: that watch judicial nominations really say that that is the
Speaker 1: important factor here because if it's the Senate changes hands,
Speaker 1: there's a very high likelihood that nominations are going to
Speaker 1: become much more difficult for the administration, and Republicans have
Speaker 1: promised as much. Lindsey Graham kind of alluded to this
Speaker 1: during Jackson's vote in the committee. He said the process
Speaker 1: that the Democrats started will rear its head if Republicans
Speaker 1: are in charge and promise they would talk about studies differently.
Speaker 1: You know, that obviously remains to be seen what what
Speaker 1: that would look like, but we can use the Obama
Speaker 1: administration as kind of proxy. And Republicans really stymied Obama's
Speaker 1: judicial nomination's efforts and that definitely could happen with with
Speaker 1: Biden as well. So it's been something that we've been
Speaker 1: talking about for Biden's entire administration of how much could
Speaker 1: they get done in these two years before mid term
Speaker 1: threaten Democrats swims on a majority. I didn't understand what
Speaker 1: Graham was really saying, because look, as you say, the
Speaker 1: Republicans president Obama's nominations. I didn't understand what he was
Speaker 1: complaining about, right well, I mean, this confirmation process for
Speaker 1: Jackson definitely brought up a lot of the woes of
Speaker 1: the confirmation process in the past, and it seems like
Speaker 1: maybe in the heat of the moment this comment was
Speaker 1: was brought up. Um. An interesting thing to note though,
Speaker 1: is that Graham has been pretty supportive of Biden's JUDENTSI
Speaker 1: nominees uh In in committee and on on the on
Speaker 1: the floor so whether or not that would change if
Speaker 1: Republicans are in control would be a really interesting uh
Speaker 1: change for for Graham in terms of the fact that
Speaker 1: he's supported a lot of the nominees. Well, well, Democrats
Speaker 1: have have been controlling this about it. As you know,
Speaker 1: he supported Judge Jackson for her nomination to the d
Speaker 1: C Circuit. I have no idea what happened to make
Speaker 1: him so bitter. In the meantime, this is the first
Speaker 1: time I've seen Grandma's questions all year. He doesn't come
Speaker 1: to digital nominations hearing, so he typically votes by proxy
Speaker 1: when the meetings come around, and so it was pretty
Speaker 1: weird for the first time to see him in committee
Speaker 1: questioning a nominee and it happens to be Supreme Court
Speaker 1: nominee a year and two finds administration, and it just
Speaker 1: is a huge contrast to the voting pattern that I've seen.
Speaker 1: So it was really interesting and I'm just as curious
Speaker 1: about the motive as everybody else. Thanks Madison. That's Bloomberg
Speaker 1: Law reporter, Medicine alder impossible. Foods. Meat free burgers are
Speaker 1: becoming a staple in US restaurants and grocery stores now
Speaker 1: for the first time a lawsuit will test Impossible Foods
Speaker 1: patented technology in court. My guest is Leonard Spenson of Birch, Stewart,
Speaker 1: Colash and Birch. Tell me about this huge portfolio of
Speaker 1: patents that Impossible Foods has. Well, they have a large portfolio.
Speaker 1: I think it's still the biggest patent portfolio of any
Speaker 1: of the players in this cultured meat laboratory meat market.
Speaker 1: UH covers various different aspects of the product. They've got
Speaker 1: patents that are directed in patent applications on that are
Speaker 1: still pending, that are directed to a meat product itself,
Speaker 1: two parts of the manufacturing process. I think what distinguishes
Speaker 1: them from other companies is they have multiple patents and
Speaker 1: patent application still pending directed to the meat product itself,
Speaker 1: and it's all around the key aspect of their meat,
Speaker 1: which is this scheam containing protein, and they claim they've
Speaker 1: developed that, they've isolated the purpose for it, isolated the
Speaker 1: compound and they're using it in their product. And that's
Speaker 1: what gives the meat, this artificial or culture laboratory meat.
Speaker 1: That's what gives it the texture and taste and smell
Speaker 1: of real meat. So again that's what distinguishes them from
Speaker 1: I think all the other players in the fielders they
Speaker 1: have some patent protection around a key ingredient, and then
Speaker 1: they can develop product patterns around that key ingredient. Is
Speaker 1: that what you refer to as its crown jewel? Yes,
Speaker 1: because if you if you compare their patent portfolio to
Speaker 1: others sort of in the field, most of them are
Speaker 1: focused on process parameters. There may be some particular techniques
Speaker 1: that they used to make the meat. They may have
Speaker 1: an attempt to get some claims to the products based
Speaker 1: on a combination of particular ingredients. But I don't think
Speaker 1: there's anybody else out there that has one special ingredient
Speaker 1: that they think distinguishes them from everybody else and that
Speaker 1: they can use to sort of protect their particular niche
Speaker 1: in the market. I'd say this is the start of
Speaker 1: the industry, right, it's growing now. How unusual is to
Speaker 1: have a patent dispute at this time, I think it's
Speaker 1: relatively unusual at this beginning of the technology or the
Speaker 1: whole industry. Of course, there's lots of startup companies that
Speaker 1: end up in litigation in various fields biotechnology, in pharmaceuticals,
Speaker 1: but at the beginning of the industry itself. I think
Speaker 1: this is kind of unusual if you're compared to let's say,
Speaker 1: crisper technology. I don't know if you're familiar with that,
Speaker 1: but that's one of the gene editing technologies that's pretty new,
Speaker 1: and there are fights over who has the rights to
Speaker 1: the key patents on that technology. Right now, they're fighting
Speaker 1: in Europe and they're fighting in the United States over
Speaker 1: who should get the patents. But you don't see patent
Speaker 1: infringement litigations against each other. Saying for plant biotechnology, I
Speaker 1: was involved in that way back when, and until recently
Speaker 1: still planned by a technology that was used to genetically
Speaker 1: engineer things like corn and soybean, and it took a
Speaker 1: while before they got to where they were suing each
Speaker 1: other over patents. I mean they were again trying to
Speaker 1: get positions so that they would have each company would
Speaker 1: have their own patent portfolio, but to actually have patent
Speaker 1: infringe in suits took a while. Now, part of that
Speaker 1: might be because in those technologies, the product that would
Speaker 1: actually go out to the market required more government approval,
Speaker 1: So like if it was a drug it would take
Speaker 1: FDA approval, or if it was genetically engineered corn and soybean.
Speaker 1: They were part of agricultural approvals that you had to
Speaker 1: go through, so that may be delayed the time to market,
Speaker 1: whereas these products they're not as regulated. There's some groups
Speaker 1: they have to go through, but it's not as regulated,
Speaker 1: so they're faster to market. And maybe that's by the
Speaker 1: reason why you see the litigation so early in the
Speaker 1: industry is because people are getting to the market pretty quickly,
Speaker 1: and then people who have patent positions want to protect
Speaker 1: those markets. They're suing a competitor mo Chief food Works
Speaker 1: for infringement. Tell us a little about the lawsuit. Well,
Speaker 1: Possible Foods has, like we discussed before, they have a
Speaker 1: pretty wide ranging portfolio of patents, and they sued on
Speaker 1: one particular patent. It covers the claims are to a
Speaker 1: beef replica product and it contains a certain percentage of
Speaker 1: the heat containing protein, and they sued Moti Food Works,
Speaker 1: who has just recently come out with a products started
Speaker 1: promoting and commercially selling the product, and they sued Motif
Speaker 1: for infringement of this one patent legend that it contains
Speaker 1: a heat containing protein and it contains the other ingredients,
Speaker 1: but really focusing on this team containing protein, and part
Speaker 1: of the evidence that they submitted with their complaint were
Speaker 1: quotes just from the website of Motif food Works showing
Speaker 1: that they're promoting their product as having a heat containing protein.
Speaker 1: And then Impossible Foods also enclosed copies of documents from
Speaker 1: the regulatory paperwork that Motif filed showing that in that paperwork,
Speaker 1: according to the Impossible Foods, they admitted that they contained
Speaker 1: a heam compound similar to we're the same as which
Speaker 1: covered by the patent of Impossible Foods. So it's a
Speaker 1: straight patent infringement student it's pretty standard type of suit.
Speaker 1: How expensive is this kind of patent litigation? Patent litigation
Speaker 1: is expensive, yes, so that's also maybe part of the
Speaker 1: reason why you don't see it in the young industry,
Speaker 1: as it's expensive. But Impossible Foods is pretty well financed.
Speaker 1: You can just read from the industry newsletters and such
Speaker 1: that they're they're well financed, so I guess they're able
Speaker 1: to afford it, and they hired a big time law firm,
Speaker 1: well known law firms, so it's not cheaper than bring
Speaker 1: a lawsuits like this. If they win, what effect does
Speaker 1: it have? If they win, they will get money damages,
Speaker 1: which at this stage probably would not be that huge
Speaker 1: of an amount of money total, because Motif is just
Speaker 1: getting into the markets. There's probably not that many sales.
Speaker 1: So you might even question at the beginning whether the
Speaker 1: amount of damages that Impossible Foods could get, whether the
Speaker 1: amount of damages would equal the cost of bringing the lawsuit.
Speaker 1: But they could potentially also get an injunction to stop
Speaker 1: Motif food Works from selling their products. I mean, does
Speaker 1: it have an effect on their position in the industry,
Speaker 1: on the validity of their patents? Is there any broad effect? Well,
Speaker 1: does heam containing comp and a sort of the crown
Speaker 1: jewel for Impossible foods, And I'm sure they want to
Speaker 1: stop anybody that even alleges that they're using a stimilar
Speaker 1: kind of compound. So it would at least send a
Speaker 1: message out to the industry that they are going to
Speaker 1: be aggressive and protecting their patent portfolio, and they're going
Speaker 1: to be aggressive and going after anybody that is using
Speaker 1: a compound that they think is covered by their patents.
Speaker 1: So yes, would have that kind of an effect. I'm
Speaker 1: sure it would cause young companies to pause, because a
Speaker 1: young company getting food for patent infringement and it's expensive
Speaker 1: for them to defend themselves also, so it's going to
Speaker 1: give them some pause. How would it affect Impossible Foods
Speaker 1: patent portfolio, and that's hard to say. Patent portfolio Impossible
Speaker 1: Foods right now has not been challenged, So it would
Speaker 1: provide an opportunity for somebody to challenge whether the Impossible
Speaker 1: Foods patents are too broad or whether they really are valid.
Speaker 1: So potentially have that effect, but that would also take
Speaker 1: motif having enough need to fight that battle. There's a
Speaker 1: related patent of impossible foods right now in Europe that's
Speaker 1: under opposition. It's not the corresponding European patent to the
Speaker 1: one that's in the Impossible Foods lawsuit, but it's related.
Speaker 1: It's I don't know what you might want to call
Speaker 1: it a cousin. They're connected through a complicated chain of
Speaker 1: patent applications, and that patent in Europe is under opposition,
Speaker 1: which means the European patent granted and some company, through
Speaker 1: a law firm, filed an opposition and we just don't
Speaker 1: know what company it is because they thought it just
Speaker 1: through the law firm and they attacked the European patent
Speaker 1: for being an unpatentable over prior art. It's not saying
Speaker 1: it's not novel, it's it's obvious and for some reasons
Speaker 1: relating to claim terminology, and the preliminary opinion of the
Speaker 1: European Patent Office was that the claims were not valid,
Speaker 1: that they were not novel, and that they were obvious
Speaker 1: over a bunch of prior art. That was it. Now,
Speaker 1: whether that prior art has any effect on the U.
Speaker 1: S patent, I don't know. I haven't studied it carefully.
Speaker 1: The European patent is somewhat broader than the U. S
Speaker 1: patent o im Possible Foods, but you can see that
Speaker 1: there's potentially a similar line of attack in the United
Speaker 1: States that could be used, similar to what was used
Speaker 1: against that European pattern. The European opposition hasn't ended yet.
Speaker 1: The evidence is pretty much already there. So if some
Speaker 1: US company like motif I wanted to see if there
Speaker 1: was a possible line of attack using the evidence that
Speaker 1: was submitted in Europe that's already available. If Impossible Foods loses,
Speaker 1: do its patents become questionable? Are there more lawsuits if
Speaker 1: they lose? The case depends on the grounds they'd lose
Speaker 1: the case. They could lose it because studuled jury, the
Speaker 1: court determines that the motif product doesn't really infringe, it's
Speaker 1: just not covered by the Impossible Foods patent. So in
Speaker 1: that respect it would have some impact, but not serious
Speaker 1: impact on the rest of portfolio. But suppose the court
Speaker 1: finds that the Impossible Foods patent is invalid because it
Speaker 1: covers prioritis either anticipated by or it's obvious over prior art.
Speaker 1: I think it's not down because of prior art. Maybe
Speaker 1: that prior art is potentially impactful against the other parts
Speaker 1: of the portfolio of Impossible Foods because the current patent
Speaker 1: that's in the lawsuit is drafted in one way and
Speaker 1: that focuses on certain elements. So the prior arch could
Speaker 1: knock out that patent, and maybe that priority would be
Speaker 1: useful to attack other claims that other patterns owned by
Speaker 1: Impossible Foods. But their portfolio is pretty broad. It might
Speaker 1: not have that much of an impact because they have
Speaker 1: a lot of different patents claiming the subject matter and
Speaker 1: lots of different ways. But this is one of the
Speaker 1: broader ones, I think, to the product itself. So potentially
Speaker 1: it could have an impact, but they have a lot
Speaker 1: of other patents in their portfolio that would still be standing.
Speaker 1: Thanks so much for being on the show. That's Leonard's
Speaker 1: Fanson of Bert Stewart, Colash and Bert. And that's it
Speaker 1: for the edition of the Bloomberg Law Show. Remember you
Speaker 1: can always at the latest legal news on our Bloomberg
Speaker 1: Law Podcast wherever you get your favorite podcasts. I'm June
Speaker 1: Russo and you're listening to Bloomberg