# Weekend Law: Voting Rights, Comey Indicted & Bayer Litigation

An episode of [Bloomberg Law](https://invisiblenetwork.ai/podcast/277975394), 2 May 2026, 38 min.

Audio: https://podtrac.com/pts/redirect.mp3/traffic.omny.fm/d/clips/e73c998e-6e60-432f-8610-ae210140c5b1/7c892d84-801f-4c0b-b0e9-ae2b0012ff5f/c42d28ab-7a53-48b6-897e-b43e000bfc90/audio.mp3?utm_source=Podcast&in_playlist=91224201-26a6-429d-ac3c-ae2b0012ff6d

Elections law expert Richard Hasen, a professor at UCLA Law School, discusses the Supreme Court's decision that has crippled the landmark civil rights law, the Voting Rights Act. Then former federal prosecutor Robert Mintz, a partner at McCarter & English, discusses the Justice Department indicting former FBI Director James Comey for the second time in seven months. And mass torts expert Elizabeth Burch, a professor at the University of Georgia Law School, discusses Supreme Court oral arguments over Bayer's bid to stop lawsuits claiming its Roundup herbicide should have been labeled as a cancer risk. She also discusses her new book, entitled "The Pain Brokers." June Grasso hosts. See omnystudio.com/listener for privacy information.

## Transcript

[0:03] Speaker 1: This is Bloomberg Law with June Brossel from Bloomberg Radio.
[0:09] Speaker 2: This Trump Supreme Court just throughout the protections that were
[0:13] Speaker 2: earned by the Civil rights movement, those who bled, who fought,
[0:20] Speaker 2: and who died so that people might have a voice.
[0:24] Speaker 1: The Voting Rights Act is considered the crown jewel of
[0:27] Speaker 1: the civil rights movement, and on Wednesday, the Supreme Court's
[0:31] Speaker 1: conservatives took a wrecking ball to what was left of
[0:35] Speaker 1: the landmark law, after having weakened it twice before. Democratic
[0:40] Speaker 1: Senator Raphael Warnock said the decision is a huge step
[0:44] Speaker 1: backwards for racial justice.
[0:46] Speaker 2: Make no mistake, this ruling hearkens back to the darkest
[0:52] Speaker 2: days of the Jim Crow era.
[0:54] Speaker 1: The Court severely limited the use of the Voting Rights Act,
[0:58] Speaker 1: making it difficult, if not in possible, for minorities to
[1:01] Speaker 1: challenge electoral maps as racially discriminatory. It was a six
[1:06] Speaker 1: to three vote, with Republican appointed justices in the majority
[1:10] Speaker 1: and Democratic appointed justices in dissent, in a decision that
[1:15] Speaker 1: Buttress's Republican efforts to keep control of the House in
[1:19] Speaker 1: this year's midterms and beyond. My guest is one of
[1:22] Speaker 1: the country's leading authorities on election law. Richard Hassen, a
[1:27] Speaker 1: professor at UCLA Law School, Rick, how would you characterize
[1:31] Speaker 1: this decision? Is it a game changer?
[1:34] Speaker 3: This is an earthquake. It is one of the most
[1:37] Speaker 3: significant decisions regarding elections that the Supreme Court has ever issued.
[1:41] Speaker 1: Tell us why so.
[1:43] Speaker 3: When Congress initially passed the Voter Rights Act in nineteen
[1:46] Speaker 3: sixty five, it did things like assure that black voters
[1:50] Speaker 3: in the South would be able to register to vote,
[1:52] Speaker 3: But it didn't you anything about the lack of political
[1:55] Speaker 3: power that black voters would have even when they do vote,
[1:59] Speaker 3: especially in situations where white voters and minority voters prefer
[2:02] Speaker 3: different candidates. In nineteen eighty two, Congress responded to that
[2:07] Speaker 3: by amending Section two of the Voting Rights Act to
[2:10] Speaker 3: provide that when white voters and minority voters prefer different candidates,
[2:15] Speaker 3: and it's possible to draw a district where minority voters
[2:18] Speaker 3: can elect their candadive choice, under some circumstances, states have
[2:22] Speaker 3: to do that, and from nineteen eighty six the understanding
[2:26] Speaker 3: was that this is what Section two required. What Justice
[2:30] Speaker 3: Alito did in his opinion is essentially eviscerate Section two
[2:35] Speaker 3: of the Voting Rights Act. Although he claims not to
[2:37] Speaker 3: overrule the test that's been in place since nineteen eighty six,
[2:41] Speaker 3: the so called Jingles test, he does that, and he
[2:45] Speaker 3: imposes a test that will be virtually impossible for minority
[2:49] Speaker 3: voters to win. This is going to lead to many
[2:51] Speaker 3: more legislative bodies where there will be only or mostly
[2:57] Speaker 3: white representatives, and minority voters will not have of fair
[3:01] Speaker 3: representation in Congress, in state legislatures, and in local bodies
[3:05] Speaker 3: like city councils and school boards.
[3:07] Speaker 1: I mean, how did Justice Alito explain? What was his reasoning?
[3:11] Speaker 3: So, what Justice Alito did was say that race consciousness
[3:17] Speaker 3: in law is a potential violation of the Constitution. The
[3:23] Speaker 3: Constitution requires a kind of race blindness when it comes
[3:26] Speaker 3: to elections and comes to other areas, and so in
[3:29] Speaker 3: order to keep the voting rights at constitutional he had
[3:33] Speaker 3: to reconceptualize it to change the standards. What he says
[3:37] Speaker 3: is that when a group of Minori voters wants to
[3:41] Speaker 3: show a claim under Section two, they've got to show
[3:44] Speaker 3: that if say a computer algorithm was drawing districts by chance,
[3:48] Speaker 3: they would have had a chance to have this district
[3:52] Speaker 3: drawn to give them the opportunity to elect a canadive choice.
[3:55] Speaker 3: You can't be race conscious and drawing districts. That is
[3:58] Speaker 3: turning the voter rights on its head. Further, he says
[4:01] Speaker 3: that states can defend the drawing of district lines that
[4:05] Speaker 3: dilute the power of minority voters by saying they're doing
[4:07] Speaker 3: it to favor their political party. So Parson Jerry managering,
[4:11] Speaker 3: far from being unconstitutional, becomes a defense to a voting
[4:14] Speaker 3: rights case, and that is profoundly ironic. It also takes
[4:19] Speaker 3: the idea that someone in Alabama could pass a law
[4:24] Speaker 3: that would favor Republicans but not favor white voters. It
[4:27] Speaker 3: just makes no sense given the tremendous overlap of race
[4:29] Speaker 3: and party in these cases.
[4:31] Speaker 1: Alito, I understand when he was reading parts of his
[4:34] Speaker 1: decision from the bench, said basically, don't listen to the descent.
[4:39] Speaker 1: This is not really a big deal. I mean, why
[4:42] Speaker 1: do you think they kept the Voting Rights Act? Is
[4:45] Speaker 1: it for appearance's sake? So they could say this isn't
[4:47] Speaker 1: a big deal. Don't look here.
[4:49] Speaker 3: So in twenty twenty one, Justice Alito wrote a majority
[4:52] Speaker 3: opinion for the Court in a case called Bernovich versus DNC.
[4:55] Speaker 3: When that case came out, I said, what Justice Alito
[4:58] Speaker 3: has done is essentially this ray the Voting Rights Act
[5:01] Speaker 3: Section two as applied outside of redistricting. And since that case,
[5:06] Speaker 3: as I recounted in a recent Law Review article that
[5:08] Speaker 3: Justice Kagan cited in her descent, there has been no
[5:11] Speaker 3: successful case under section two since Bernovich outside of redistricting.
[5:16] Speaker 3: He's doing the same thing here. In Bernovich, he pretended
[5:19] Speaker 3: he wasn't overturning the Voting Rights Act, but he imposed
[5:21] Speaker 3: such a test. He doesn't want to take the political
[5:23] Speaker 3: heat for overturning the Act, but he essentially renders the
[5:27] Speaker 3: dead letter. As Justice Kagan says in her descent.
[5:29] Speaker 1: Justice Kagan said, the decision completes the Supreme Court's three
[5:34] Speaker 1: step plan to eliminate the protections of the Voting Rights
[5:38] Speaker 1: Act that started in twenty thirteen the Shelby County case.
[5:42] Speaker 1: Can you tell us about those three steps?
[5:45] Speaker 3: So there were two key parts to the Voting Rights
[5:48] Speaker 3: Act until twenty thirteen. One part, as you mentioned, is
[5:52] Speaker 3: Section five of the Act that required states with the
[5:54] Speaker 3: history of racial discrimination and voting to get federal approval
[5:57] Speaker 3: before they made changes in their voting rules, and they'd
[5:59] Speaker 3: have to show that the changes wouldn't make minority voters
[6:02] Speaker 3: worse off in Shelby County. In the John Roberts opinion,
[6:05] Speaker 3: the conservats on the Court said that the formula used
[6:08] Speaker 3: to figure out which states are covered under Section five
[6:12] Speaker 3: was outdated and therefore unconstitutional. But the majority of Shortness
[6:16] Speaker 3: don't worry. There's always Section two to protect minority voters.
[6:19] Speaker 3: Then came step two, that Bernovich case, where the Court
[6:22] Speaker 3: said Section two, outside of the context of redistricting is
[6:26] Speaker 3: essentially a dead letter. And here comes the third and
[6:28] Speaker 3: final step, which is Justice Alito in his opinion in
[6:32] Speaker 3: Calai saying, here's what Section two means. Now, essentially rendering
[6:37] Speaker 3: Section two a dead letter as it applies to redistricting.
[6:40] Speaker 3: This is going to bleach all of these legislative bodies.
[6:44] Speaker 3: It is going to make it very difficult, if not impossible,
[6:47] Speaker 3: for minority voters to win in any of these lawsuits.
[6:50] Speaker 1: Is there anything left of the Voting Rights Act?
[6:52] Speaker 3: Well, there are parts of the Voting Rights Act that survive.
[6:54] Speaker 3: For example, there's a ban on literacy tests. There are
[6:57] Speaker 3: other requirements of the Voting Rights Act. But the two
[6:59] Speaker 3: big parts of the Voting Rights Act Section two and
[7:02] Speaker 3: section five are there in a shell only, and it
[7:06] Speaker 3: is a sad day for voting rights and democracy in
[7:08] Speaker 3: the United.
[7:09] Speaker 1: States, and progressive groups have calculated that as many as
[7:13] Speaker 1: nineteen congressional districts with primarily black or Hispanic populations are
[7:19] Speaker 1: at risk.
[7:20] Speaker 3: I do want to make an important point which I
[7:22] Speaker 3: think some people are missing, which is that not only
[7:24] Speaker 3: will Republicans have an incentive to get rid of these
[7:27] Speaker 3: districts sobal democrats. Democrats will want to take their reliable
[7:31] Speaker 3: black voters and spread them out in more democratic districts,
[7:35] Speaker 3: thereby decreasing the number of Minoriti opportunity districts, but still
[7:40] Speaker 3: helping Democrats win their elections. And so I think the
[7:43] Speaker 3: real losers here are Minoriti voters and the American people overall.
[7:47] Speaker 3: If we're going to live in a multi racial democracy,
[7:49] Speaker 3: we need to have fair representation for all people.
[7:51] Speaker 1: Republicans in the South are already calling for new maps
[7:55] Speaker 1: to be drawn because of this decision. How do you
[7:58] Speaker 1: think it will affect the midterms?
[8:00] Speaker 3: It's not clear how this decision will affect the midterms
[8:02] Speaker 3: because many states have already conducted their primaries and it
[8:06] Speaker 3: would be unusual to go back and redraw lines and
[8:10] Speaker 3: require there to be a new set of primaries. But
[8:12] Speaker 3: there are some places, most importantly in Florida, where they
[8:15] Speaker 3: already right now considering a new districting plan. They can
[8:19] Speaker 3: now consider a districting plan that doesn't have to take
[8:22] Speaker 3: into account the requirement to draw districts that were thought
[8:26] Speaker 3: necessary under Section two of the Voting Rights Act. And
[8:28] Speaker 3: so in Florida and maybe a few other places where
[8:31] Speaker 3: they have not held primaries, we could see some redrawing
[8:33] Speaker 3: of district lines.
[8:34] Speaker 1: But in twenty twenty eight we may see the full
[8:37] Speaker 1: effects of this decision.
[8:39] Speaker 3: I fully expect states like Louisiana and Alabama, if they
[8:42] Speaker 3: can't get done in time for twenty twenty six, to
[8:44] Speaker 3: certainly get redistricting diluting minority voting power in time for
[8:48] Speaker 3: twenty twenty eight.
[8:49] Speaker 1: As you know, President Trump started this mid decade redistricting battle.
[8:55] Speaker 1: Does this decision affect the redistricting that's been done in Texas, Foreigna, Virginia,
[9:01] Speaker 1: et cetera. Are any of those maps affected or it
[9:05] Speaker 1: doesn't matter because they were done for partisan reasons.
[9:09] Speaker 3: Well, that's a hard question to answer, because Parson jerry
[9:12] Speaker 3: manadering is now a defense, and so that should render
[9:15] Speaker 3: maps drawn for partisan reasons immune from Section two claims.
[9:19] Speaker 3: But I should say that the Virginia maps which were
[9:22] Speaker 3: recently passed by voters may or may not survive state
[9:26] Speaker 3: court review in the Virginia Supreme Court, and so there's
[9:30] Speaker 3: still some question marks as to exactly what the lines
[9:33] Speaker 3: are going to be for the remaining primaries. In twenty
[9:35] Speaker 3: twenty six.
[9:37] Speaker 1: The Supreme Court has been accused more and more of
[9:39] Speaker 1: being political, though Chief Justice John Roberts likes to talk about,
[9:44] Speaker 1: you know, we're not politicians. Does this decision with six
[9:47] Speaker 1: Republicans on one side and the Democrats on the other,
[9:51] Speaker 1: does this make it even more political or seem even
[9:53] Speaker 1: more political?
[9:55] Speaker 3: Well, I think it's very clear that the Conservatives on
[9:57] Speaker 3: the Supreme Court are helping, whether intentionally or not, the
[10:01] Speaker 3: Republican political agenda.
[10:03] Speaker 4: I think the general mood.
[10:04] Speaker 3: Of the Supreme Court is that, you know, you can
[10:07] Speaker 3: do anything for parson advantage, and the Supreme Court is
[10:11] Speaker 3: not going to police it. And so whether the justices
[10:15] Speaker 3: honestly believe that they're simply applying jurisprudence or they are
[10:19] Speaker 3: partisan hacts, as Justice Barrett claimed, they were not, It
[10:23] Speaker 3: doesn't really matter. The effect is going to be the same,
[10:25] Speaker 3: and the effect is going to be to help the
[10:27] Speaker 3: Republican Party.
[10:28] Speaker 1: Could Congress pass a law to get around this.
[10:31] Speaker 3: Congress could pass a law revitalizing the Voting Rights Act
[10:34] Speaker 3: because this was a matter of statutory interpretation, not a
[10:38] Speaker 3: constitutional decision, and so that would dare the Supreme Court
[10:42] Speaker 3: to actually do something and strike it down again. I
[10:46] Speaker 3: think that this decision is going to lead to more
[10:48] Speaker 3: calls for Supreme Court reform because pretty clear what the
[10:52] Speaker 3: political direction of the majority of the Court is, and
[10:55] Speaker 3: it's quite a partisan direction.
[10:57] Speaker 1: You've written that this is the worst Supreme Court ruling
[11:00] Speaker 1: in a century. Explain why.
[11:03] Speaker 3: Well, when it comes to voting rights, Section two was
[11:06] Speaker 3: really revolutionary and assuring we could have a more multi
[11:09] Speaker 3: racial democracy, and the Supreme Court by churning the Reconstruction
[11:13] Speaker 3: Amendments on their head and making race consciousness, which Congress
[11:18] Speaker 3: required in Section two, something that is constitutionally suspect. What
[11:24] Speaker 3: the Court is going to do is going to change
[11:26] Speaker 3: the nature of political representation in this country, bringing us
[11:30] Speaker 3: back to a time well before the passage of the
[11:33] Speaker 3: Voting Rights Act amendments in nineteen eighty two.
[11:35] Speaker 1: It's been great having you on, Rick, Thanks so much.
[11:38] Speaker 1: That's professor Rick Hassen of UCLA Law School. Coming up next.
[11:42] Speaker 1: James Comy is indicted for a second time. I'm June
[11:46] Speaker 1: Grosso and you're listening to Bloomberg. The Justice Department has
[11:51] Speaker 1: indicted former FBI director James Comy for the second time
[11:56] Speaker 1: in seven months, this time based on an Instagram post
[12:00] Speaker 1: from a year ago of seashells on a beach arranged
[12:03] Speaker 1: in the numbers eighty six forty seven. The government claims
[12:07] Speaker 1: that amounts to a threat against President Trump, the forty
[12:11] Speaker 1: seventh president, and Trump told reporters this week that Komy's
[12:15] Speaker 1: post probably put his life in danger.
[12:18] Speaker 3: Eighty six.
[12:19] Speaker 4: You know it's a mob term for kill him.
[12:23] Speaker 1: You know, you ever see the movies eighty six the
[12:26] Speaker 1: mobster says to one of his wonderful associates eighty six
[12:30] Speaker 1: that means kill him. Komy said at the time of
[12:33] Speaker 1: the post that he assumed the numbers reflected a political message,
[12:37] Speaker 1: and he deleted the post when he learned some people
[12:40] Speaker 1: were interpreting it as a call to violence. The first
[12:43] Speaker 1: indictment against him on unrelated false statement and obstruction charges
[12:48] Speaker 1: was dismissed by a judge because the interim US attorney
[12:52] Speaker 1: had been improperly appointed. Komy says he's innocent of these
[12:56] Speaker 1: charges as well.
[12:58] Speaker 4: Welder Beech time about a picture of seashells on a
[13:03] Speaker 4: North Carolina beach a year ago, and this won't be
[13:06] Speaker 4: the end of it. But nothing has changed with me.
[13:10] Speaker 4: I'm still innocent, I'm still not afraid, and i still
[13:14] Speaker 4: believe in the independent federal judiciary. So let's go.
[13:17] Speaker 1: It's a bare bones, two page indictment, and even Republican
[13:22] Speaker 1: Senator Tom Tillis said he hopes the Justice Department has
[13:26] Speaker 1: more evidence.
[13:27] Speaker 5: Gouy searts to the end of the internet last night.
[13:29] Speaker 5: I can't find one example where the number eight six
[13:32] Speaker 5: had anything to do with any violent threat, So hopefully
[13:37] Speaker 5: there's more to it than just the picture in the sand.
[13:39] Speaker 1: Joining me is former federal prosecutor Robert Mintz, a partner
[13:43] Speaker 1: McCarter in English, Bob, the term eighty six is ambiguous.
[13:48] Speaker 1: Is it going to be a challenge for prosecutors to
[13:51] Speaker 1: prove that this was even a threat.
[13:53] Speaker 6: So the first question that any juror or judge is
[13:56] Speaker 6: going to ask when they take a look at this
[13:58] Speaker 6: case is to focus on what does eighty six forty
[14:02] Speaker 6: seven mean? You have to go back and take a
[14:04] Speaker 6: look at the original derivation of the term eighty six,
[14:08] Speaker 6: And apparently the prevailing view is that it started somehow
[14:12] Speaker 6: in the restaurant business, and it really had to do
[14:15] Speaker 6: with the fact that an item on the menu was
[14:17] Speaker 6: no longer available, or that a customer at a restaurant
[14:20] Speaker 6: was going to be asked to leave the restaurant. And
[14:23] Speaker 6: it's only recently that it's come up in a political context.
[14:27] Speaker 6: One of the most prominent use of the term eighty
[14:30] Speaker 6: six in the last several years was back in February
[14:33] Speaker 6: of twenty twenty four, when at the time, Representative Matt
[14:37] Speaker 6: Gates of Florida posted we've now eighty six McCarthy McDaniel, McConnell,
[14:42] Speaker 6: which was apparently a reference to Kevin McCarthy losing his
[14:47] Speaker 6: House speakership, Republican National Committee chair Ron McDaniel leaving her role,
[14:52] Speaker 6: and Senator Mick McConnell announcing he would step down as
[14:55] Speaker 6: Majority leader. So we've seen the term eighty six used
[14:59] Speaker 6: in aolitical context, sometimes meaning to get rid of a
[15:03] Speaker 6: political leader. Here, the government apparently is going to try
[15:06] Speaker 6: to convince a jury ultimately that this was a statement
[15:11] Speaker 6: by former Director Komy to incite violence against the president,
[15:15] Speaker 6: and when he said eighty six forty seven, he was
[15:18] Speaker 6: arguing that the president should be assassinated. That's really the
[15:23] Speaker 6: heart of what this prosecution will ultimately be about.
[15:26] Speaker 1: And what's the standard of proof here?
[15:29] Speaker 6: Yeah, so this is a very high legal standard in
[15:31] Speaker 6: this case. Mister Komi was charged under a statute that
[15:36] Speaker 6: criminalizes the act of knowingly and wilfully making any threat
[15:41] Speaker 6: to take the life of to kidnap, or to inflict
[15:44] Speaker 6: bodily harmed upon the President.
[15:45] Speaker 4: Of the United States, and the.
[15:47] Speaker 6: Second count in the indictment criminalizes making those threats through
[15:51] Speaker 6: interstate communications. But the real question is what did mister
[15:56] Speaker 6: Komy intend when he posted that Instagram footdo He claims
[16:01] Speaker 6: that it was political speech and that he had no
[16:04] Speaker 6: intention to do violence or to try to incite anybody
[16:07] Speaker 6: else to do violence. So prostutors here are gonna have
[16:10] Speaker 6: to overcome not only the common sense definition by mister
[16:14] Speaker 6: Comy's outright denial that he intended to threaten the president.
[16:19] Speaker 1: Let's talk about possible defenses. Comy's lawyer said, we look
[16:23] Speaker 1: forward to vindicating mister Comy and the First Amendment.
[16:27] Speaker 6: Well, I think there's going to be a whole host
[16:29] Speaker 6: of defenses here. First and foremost, I think, is this
[16:33] Speaker 6: First Amendment question, because there is a long history here
[16:38] Speaker 6: of the courts interpreting that statute and weighing it against
[16:43] Speaker 6: First Amendment rights. The original Supreme Court case of Brandenburg
[16:47] Speaker 6: versus Ohio held the constitutional guarantees of free speech and
[16:50] Speaker 6: free press don't permit a law to forbid or prescribe
[16:54] Speaker 6: advocacy of the use of force or of law violation,
[16:58] Speaker 6: except in limited circumstances where the person making a statement
[17:03] Speaker 6: is inciting or producing imminent lawless action. In other cases,
[17:08] Speaker 6: even more recently made it even harder to bring these cases.
[17:12] Speaker 6: So these types of threat cases are always viewed through
[17:15] Speaker 6: the lens of First Amendment rights. And the most recent case,
[17:19] Speaker 6: the one that really is the binding precedent right now,
[17:23] Speaker 6: set the threshold even higher. In twenty fifteen, it was
[17:26] Speaker 6: actually an opinion written by Justice Roberts, and it concluded
[17:31] Speaker 6: that the mindset of the person who made the comment
[17:34] Speaker 6: must be considered. It's not enough for the subject of
[17:37] Speaker 6: a comment to view it as a threat. The person
[17:40] Speaker 6: who made it must have intended it that way. So
[17:43] Speaker 6: they have to get inside of Jim Comey's head and
[17:46] Speaker 6: try to argue that he intended this as a real
[17:49] Speaker 6: threat to the president. And one of the things that's
[17:51] Speaker 6: going to be interesting here is when you look at
[17:53] Speaker 6: the indictment that's brought, and it's very bare bones. It
[17:56] Speaker 6: does not have much information in it at all, but
[17:59] Speaker 6: it does site to certain language which was read before
[18:04] Speaker 6: the grand jury if things were done here as they
[18:06] Speaker 6: typically are, and the standard that was read to the
[18:09] Speaker 6: grand jury was that mister Comy knowingly and Wilfley made
[18:13] Speaker 6: a threat to take the life where inflick bodily harm
[18:15] Speaker 6: upon the president. And then they talk about the photograph
[18:19] Speaker 6: and they say which a reasonable recipient who was familiar
[18:22] Speaker 6: with the circumstances would interpret as a serious expression of
[18:26] Speaker 6: intent to do harm to the president of the United States.
[18:29] Speaker 6: I expect that one of the first things the defense
[18:32] Speaker 6: is going to do is argue that the presentation before
[18:35] Speaker 6: the grand jury was tainted because that standard that I
[18:38] Speaker 6: just read was a standard from a case that had
[18:41] Speaker 6: been overruled by the more recent case of twenty fifteen
[18:45] Speaker 6: that said that you have to look beyond what the
[18:48] Speaker 6: reasonable recipient would interpret from those comments. You also have
[18:52] Speaker 6: to specifically look at what the speaker meant when they
[18:55] Speaker 6: made those comments. I think the defense is going to
[18:58] Speaker 6: argue that the grand jury was given improper legal advice
[19:03] Speaker 6: where they were given the improper legal standard when they
[19:05] Speaker 6: returned that indictment. So that will certainly be one of
[19:08] Speaker 6: the issues that I think we'll see raised by the defense.
[19:10] Speaker 1: And Bob, there's that case from nineteen sixty six over
[19:14] Speaker 1: the draft that really illustrates how the First Amendment interest
[19:18] Speaker 1: is weighed in these threat cases.
[19:21] Speaker 6: These types of cases, which may appear on their face
[19:24] Speaker 6: to be simply threats against the president, could also be
[19:28] Speaker 6: viewed as political speech. This very statue was interpreted in
[19:32] Speaker 6: the case called Wats versus the United States, and in
[19:34] Speaker 6: that case, a protester was convicted for saying, if they
[19:38] Speaker 6: ever make me carry a rifle, the first man I
[19:41] Speaker 6: want to get in my sights is LBJB, a reference
[19:45] Speaker 6: to President Johnson. At the time, that individual was convicted,
[19:49] Speaker 6: but it made its way to the Supreme Court, where
[19:52] Speaker 6: the court said that that was political hyperbole rather than
[19:55] Speaker 6: a true threat, and thus not within the prohibition of
[19:59] Speaker 6: this statf So it's an example of just how specific
[20:03] Speaker 6: and how imminent these threats have to be and why
[20:06] Speaker 6: the courts have at least traditionally looked at this kind
[20:09] Speaker 6: of language as political language rather than a call to violence.
[20:14] Speaker 6: And in this case, I think it's going to be
[20:16] Speaker 6: an uphill battle for prosecutors to prove that this was
[20:21] Speaker 6: not political speak, that this was an actual imminent threat
[20:24] Speaker 6: made by James Comy against the president.
[20:27] Speaker 1: Komy's lawyer told the judge that they're going to challenge
[20:30] Speaker 1: the case by claiming a vindictive and selective prosecution. So
[20:35] Speaker 1: not only is this the second indictment against Komy, but
[20:38] Speaker 1: according to Bloomberg's sources, federal prosecutors are pursuing additional charges
[20:44] Speaker 1: against Komy for allegedly leaking classified information.
[20:49] Speaker 6: They will try to argue that the Justice Department already
[20:53] Speaker 6: pursued a case against mister Comy less than a year ago,
[20:57] Speaker 6: which was ultimately dismissed by a judge based upon the
[21:00] Speaker 6: finding that the prosecutor at the time was not properly appointed.
[21:05] Speaker 6: So they're going to try to argue that this is
[21:07] Speaker 6: just another attempt by the Trump administration to go after
[21:11] Speaker 6: one of mister Trump's perceived enemies, James Comy, and that
[21:15] Speaker 6: there's really no merit to this case, that this case
[21:18] Speaker 6: should not have been brought in the first place, and
[21:21] Speaker 6: that at best, this is a politically veiled attempt to
[21:25] Speaker 6: try to go after mister Comy after having failed with
[21:29] Speaker 6: the other prosecution.
[21:31] Speaker 1: Many commentators have noticed a pattern where Acting Attorney General
[21:35] Speaker 1: Todd Blanche, who used to be Trump's personal criminal lawyer,
[21:39] Speaker 1: seems to be pushing to bring cases against Trump's perceived
[21:43] Speaker 1: political enemies, and they're very thin. For example, the one
[21:47] Speaker 1: recently against the Southern Poverty Law Center. Many say he's
[21:51] Speaker 1: trying out for the role of Attorney General.
[21:54] Speaker 6: Well, he has made statements directly addressing the evidence in
[21:59] Speaker 6: the case. He under stands what the legal standard is,
[22:02] Speaker 6: and he is saying that the government has additional evidence
[22:05] Speaker 6: that will prove beyond a reasonable doubt that mister Comy
[22:09] Speaker 6: intended that photograph as a threat against the president. We
[22:12] Speaker 6: haven't seen that evidence yet, but prosecutors have an ethical
[22:16] Speaker 6: duty to bring cases only if a reasonable jury could
[22:21] Speaker 6: convict based upon that high standard of beyond a reasonable doubt.
[22:25] Speaker 6: So just getting the indictment doesn't mean there's enough evidence
[22:29] Speaker 6: to ultimately gain the conviction. And that's the situation where
[22:32] Speaker 6: prosecutors have to look at the case and even though
[22:35] Speaker 6: they know they could go into a grand jury and
[22:39] Speaker 6: get that grand jury to indict based upon the lower
[22:41] Speaker 6: legal standard, they have an ethical obligation not to bring
[22:44] Speaker 6: the case if they know that the evidence is insufficient
[22:47] Speaker 6: for a reasonable jury to convict ultimately on that higher
[22:51] Speaker 6: beyond a reasonable doubt standard. At this point, it's hard
[22:54] Speaker 6: to see how prosecutors could look at the evidence that's
[22:58] Speaker 6: on the record and that a reasonable jury could find
[23:02] Speaker 6: that mister Comy intended this as a threat. There's too
[23:06] Speaker 6: much ambiguity in the statement. There's too much ambiguity in
[23:09] Speaker 6: terms of his conduct that in and of itself is
[23:12] Speaker 6: reasonable doubt. And on the defense side, that's all you
[23:14] Speaker 6: have to show. You just have to show that the
[23:16] Speaker 6: government did not prove its case beyond a reasonable doubt,
[23:20] Speaker 6: and prosecutors are going to have to come up with
[23:22] Speaker 6: additional evidence if they hope to get this case to
[23:25] Speaker 6: trial and have any chance of winning.
[23:27] Speaker 1: Do you think a judge might dismiss the case before
[23:30] Speaker 1: it goes to trial.
[23:31] Speaker 6: I do think that's a possibility. And I say that
[23:33] Speaker 6: knowing that it is exceedingly rare for judges to dismiss
[23:38] Speaker 6: a criminal case before it goes to a jury. All
[23:42] Speaker 6: prosecutors have to do is get an indictment properly before
[23:46] Speaker 6: a grand jury. The indictment has to allege the elements
[23:50] Speaker 6: of the crime, and that is enough to get the
[23:53] Speaker 6: case beyond motion practice and in front of a jury.
[23:57] Speaker 6: In this case, I think there is a reasonable possibility
[24:01] Speaker 6: that a judge is going to look at this. Number One,
[24:04] Speaker 6: they're going to look at the legal standard that was
[24:06] Speaker 6: included in the indictment, and if that was deficient or
[24:10] Speaker 6: misleading or incorrect, that's one basis that this could be dismissed.
[24:14] Speaker 6: And then the judge still may look at this case
[24:17] Speaker 6: and try to decide if there's enough evidence that a
[24:20] Speaker 6: reasonable jury could actually convict. Now, defense lawyers here could
[24:25] Speaker 6: do one a few things. They could immediately challenge the
[24:28] Speaker 6: indictment as legally insufficient. Another thing they could do is
[24:31] Speaker 6: they could move for a bill of particulars, which is
[24:34] Speaker 6: a way the defense team could say to the prosecution,
[24:37] Speaker 6: we want more information, more details about what evidence supports
[24:42] Speaker 6: this indictment.
[24:43] Speaker 1: I'm sure the defense is going to act quickly here
[24:46] Speaker 1: as they did last time. Thanks so much, Bob. That's
[24:49] Speaker 1: Robert Mince of McCarter and English coming up. Bayer has
[24:53] Speaker 1: a tough time at the Supreme Court. I'm June Grosso
[24:56] Speaker 1: and this is Bloomberg. Bayer has faced a tidal wave
[25:01] Speaker 1: of litigation alleging that its round up weed killer causes
[25:05] Speaker 1: cancer and resulting in some stunning multi billion dollar jury verdicts.
[25:11] Speaker 1: In a case before the Supreme Court this week, a
[25:14] Speaker 1: jury had awarded a Missouri man one point twenty five
[25:18] Speaker 1: million dollars after finding that Beyer failed to warn him
[25:21] Speaker 1: about possible cancer risks. Beyer argues that federal law bars
[25:26] Speaker 1: the lawsuit because US regulators didn't require a cancer warning.
[25:31] Speaker 1: Its attorney, former Solicitor General Paul Clement, put it simply.
[25:36] Speaker 7: The EPA regulation and the government's brief here makes crystal
[25:40] Speaker 7: clear that a registrant cannot change the safety warnings on
[25:44] Speaker 7: a pesticide label without approval of the agency. Thus, Missouri
[25:49] Speaker 7: law here requires something that not only is not required
[25:53] Speaker 7: by federal law, but that federal law doesn't even allow.
[25:57] Speaker 1: The questioning during the oral arguments and follow the usual
[26:01] Speaker 1: ideological lines, for example, When Liberal Justice Elaina Kagan questioned
[26:06] Speaker 1: the plaintiff's lawyer, Ashley Keller, about how these lawsuits for
[26:10] Speaker 1: failure to warn could be squared with a provision in
[26:13] Speaker 1: federal law requiring uniformity in herbicide labels, and Keller denied
[26:19] Speaker 1: that the lawsuit would undercut uniformity. Conservative Justice Brett Cavanaugh
[26:24] Speaker 1: pushed back, just to be simple minded about this, mister Keller,
[26:28] Speaker 1: you have a preemption provision that's labeled uniformity, that's clearly
[26:32] Speaker 1: designed to achieve uniformity in labeling.
[26:35] Speaker 8: And what uniformity would you e regime.
[26:38] Speaker 6: Achieve uniformity in law?
[26:41] Speaker 7: You think it's uniformity when each state can require different things.
[26:44] Speaker 6: I don't think each state can require different things. The
[26:47] Speaker 6: law has to be uniform. So if Missouri law was,
[26:51] Speaker 6: in addition to our difference.
[26:52] Speaker 1: The labels illegal in one state and legal in another state,
[26:56] Speaker 1: that's uniformity. But Chief Justice John Roberts a conservative question
[27:01] Speaker 1: the notion that states worried about cancer risks should have
[27:05] Speaker 1: to wait for the EPA to decide whether to acquire
[27:08] Speaker 1: a label change.
[27:10] Speaker 9: Well in US, undermining uniformity. I appreciate that. On the
[27:12] Speaker 9: other hand, if it turns out that they were right.
[27:15] Speaker 9: It might have been good if they had an opportunity
[27:17] Speaker 9: to do something to call this danger to the attention
[27:21] Speaker 9: of the people while the federal government was going through
[27:25] Speaker 9: its process.
[27:26] Speaker 1: The litigation has already cost Bayer more than ten billion dollars,
[27:31] Speaker 1: and the company is looking for an endgame. My guest
[27:34] Speaker 1: is an expert in mass tort litigation, Elizabeth Birch, a
[27:38] Speaker 1: professor at the University of Georgia Law School. She's the
[27:42] Speaker 1: author of the new book The Pain Brokers, about a
[27:45] Speaker 1: mass tort litigation scam.
[27:47] Speaker 3: Bet.
[27:48] Speaker 1: This was one of the first cases that went to
[27:50] Speaker 1: trial against Bayer.
[27:51] Speaker 8: Right, Yeah, so this was a state court case coming
[27:54] Speaker 8: out of Missouri. And you know, this is one of
[27:57] Speaker 8: quite a few verdicts that have been decided against Bear,
[28:01] Speaker 8: although not all of them have gone that way. And
[28:04] Speaker 8: at the moment, Bear is also trying to negotiate a
[28:08] Speaker 8: class action settlement and state court, which is ironic for
[28:11] Speaker 8: any number of reasons, but you know, this is one
[28:14] Speaker 8: of those pressure points, the idea of being, hey, you'd
[28:17] Speaker 8: better suggle with us in state court, otherwise your claims
[28:21] Speaker 8: might be diminished in terms of their value. If this
[28:24] Speaker 8: is a decision that goes our way.
[28:26] Speaker 1: Put this into the context of the massive litigation against Bayer.
[28:31] Speaker 1: There have been a couple of really eye popping verdicts
[28:34] Speaker 1: of more than two billion dollars for a single plaintiff.
[28:38] Speaker 8: Yes, there have. So this litigation has been going on
[28:41] Speaker 8: for a number of years now. It is centralized in
[28:45] Speaker 8: California in front of Judge Chabria at the federal NBL level.
[28:49] Speaker 8: There are a number of state court cases that are
[28:52] Speaker 8: also pending, and Bear has really been looking for some
[28:55] Speaker 8: sort of end game and way out to this. This
[28:59] Speaker 8: is certainly a pe piece of that in front of
[29:01] Speaker 8: the Supreme Court. Although you know, even a win in
[29:04] Speaker 8: front of the Supreme Court wouldn't kill all of the lawsuits.
[29:07] Speaker 8: It would make them more difficult to proceed, certainly on
[29:10] Speaker 8: the failure to Warren claims, but the plaintiffs have also
[29:12] Speaker 8: brought defective design claims. So this is really been a
[29:15] Speaker 8: thorn in the side of Bear for years now.
[29:18] Speaker 1: Tell us about the main issue in this case.
[29:22] Speaker 8: Well, the issue that is in front of the Supreme
[29:24] Speaker 8: Court right now is a question about preemption, and it
[29:28] Speaker 8: is in some ways a fairly narrow question of preemption
[29:31] Speaker 8: that's based on this Pesticide Act, and it's a question
[29:35] Speaker 8: about whether the federal law can preempt state law decisions
[29:39] Speaker 8: on failure to Warren claims.
[29:41] Speaker 1: So Behar says that the federal law preempts the state law.
[29:45] Speaker 1: What's the response of the plaintiff.
[29:47] Speaker 8: You know, the planiffs are making a number of arguments.
[29:49] Speaker 8: I think the one that is most intuitive is that
[29:52] Speaker 8: once the EPA approves a particular label, things can happen
[29:57] Speaker 8: and things can change. So, you know, in tho case,
[29:59] Speaker 8: the label was approved more than a decade ago, and
[30:03] Speaker 8: there is some evidence that there is a link between glycophosphate,
[30:07] Speaker 8: which is the key ingredient in roundup and on Hodgkin's lymphoma.
[30:11] Speaker 8: That has been at the heart of this controversy for
[30:14] Speaker 8: a number of years. The World Health Organization has said
[30:17] Speaker 8: that there is a possible carcinogen and glycophosphate. The EPA
[30:21] Speaker 8: has been more reluctant to embrace that decision. And so,
[30:25] Speaker 8: you know, the big question is, well, what about emerging science.
[30:28] Speaker 8: You know, if it turns out that you have a
[30:30] Speaker 8: label that's approved many many years behind, isn't there some
[30:34] Speaker 8: sort of responsibility. I'm part of the company to keep
[30:37] Speaker 8: up with the science and to continue to warn consumers
[30:40] Speaker 8: when there is a change in that science.
[30:42] Speaker 1: In all these cases, questions about glycophosphates connection to cancer
[30:48] Speaker 1: are part of the litigation.
[30:50] Speaker 8: There is different scientific support on one side versus together.
[30:54] Speaker 8: And this is a question right now in front of
[30:57] Speaker 8: the courts about whether there is general causation between exposure
[31:02] Speaker 8: to glycophosphate and how much and the development of non
[31:07] Speaker 8: Hodgkins slump foma. Again, there's a significant latency period here.
[31:11] Speaker 8: It can be you know, fourteen fifteen years between the
[31:14] Speaker 8: exposure and the development of cancer. So there's all sorts
[31:17] Speaker 8: of general causation questions, which is can glycophosphate cause this
[31:21] Speaker 8: particular disease? And then specific causation questions, which is did
[31:25] Speaker 8: it cause this particular plaintiffs on hotchkinsom foma, and.
[31:29] Speaker 1: The Trump administration has sort of embraced glycophosphate.
[31:34] Speaker 8: You know, it's interesting, So the Trump administration has very
[31:37] Speaker 8: much embraced glycophosphate, but it is something that is dividing
[31:42] Speaker 8: the Trump base. You know, Robert Kennedy for a number
[31:45] Speaker 8: of years actually represented plaintiffs against Montanto, and a key
[31:50] Speaker 8: piece of them make America healthy again is to reduce
[31:55] Speaker 8: the use of testicized like glycophosphate. And so if there
[31:58] Speaker 8: were a number of protests in front of the Supreme
[32:01] Speaker 8: Court that included MAHA supporters who were protesting against the
[32:05] Speaker 8: use of round up.
[32:07] Speaker 1: So from the oral arguments, it seemed like the justices
[32:10] Speaker 1: were divided.
[32:12] Speaker 8: Yeah, I mean, they certainly seemed divided, and it didn't
[32:16] Speaker 8: fall neatly along conservative liberal lines. So you know, you
[32:20] Speaker 8: had some justices you would have thought might be supportive
[32:24] Speaker 8: of their who in fact were less supportive of their
[32:27] Speaker 8: than you might imagine. And then you had a number
[32:28] Speaker 8: of the liberal justices who were actually not seeming like
[32:32] Speaker 8: they were in favor of bear. So it'll be interesting
[32:35] Speaker 8: to see what this opinion ultimately yields, because it doesn't
[32:39] Speaker 8: have the kind of clear lines that we often expect
[32:42] Speaker 8: among these types of hot button issues.
[32:45] Speaker 1: And what do you make of the Chief Justice suggesting
[32:48] Speaker 1: that states considering new evidence that a product is risky
[32:53] Speaker 1: should be allowed to call this danger to the attention
[32:56] Speaker 1: of the people.
[32:57] Speaker 8: I mean, I think that goes back to if there
[33:00] Speaker 8: is new and emerging evidence, does that mean that the
[33:04] Speaker 8: hands of the company are tied that they can't warn
[33:07] Speaker 8: consumers that, hey, you might need to have some sort
[33:10] Speaker 8: of personal protective equipment, or hey, this might have some
[33:13] Speaker 8: sort of link to cancer, because the EPA has already
[33:18] Speaker 8: sort of put that in place. The foot side of
[33:20] Speaker 8: all this is that there is evidence that a number
[33:22] Speaker 8: of companies, even in light of old EPA warnings, have
[33:27] Speaker 8: changed their own labels. And so you know, that came
[33:30] Speaker 8: up and some of the questioning saying, well, you know
[33:32] Speaker 8: companies are doing this all the time, why shouldn't tie
[33:35] Speaker 8: the hands of companies if this is what they're doing already,
[33:38] Speaker 8: And so that was kind of one of the points
[33:40] Speaker 8: of contention that came up.
[33:42] Speaker 1: And tell us about questions of uniformity in the law,
[33:46] Speaker 1: which Justices Kagan and Kavanaugh quiz the plaintiff's attorney on I.
[33:53] Speaker 8: Mean, I think the question is is this an instance
[33:56] Speaker 8: in which you really want uniformity in the law, and
[33:59] Speaker 8: you want uniform law to preempt what the states are doing.
[34:04] Speaker 8: And so you know, if you have California saying you
[34:07] Speaker 8: need to warn we think that there is some sort
[34:09] Speaker 8: of link between glycopho state and non hodgkinsom foma, does
[34:14] Speaker 8: that mean that you have to put a label in
[34:17] Speaker 8: California and nowhere else in the United States. Do you
[34:20] Speaker 8: have this sort of state by state regulatory scheme or
[34:23] Speaker 8: do you have federal preemption in telling you what has
[34:26] Speaker 8: to be there? And it seems like there's also this
[34:28] Speaker 8: sort of related question of how much can a company
[34:32] Speaker 8: do even in the wake of the EPA not requiring it.
[34:37] Speaker 8: You know, so can you go ahead and put a
[34:38] Speaker 8: label on there saying, hey, we're worried this might cause
[34:41] Speaker 8: cancer even if the EPA doesn't require you to do it.
[34:45] Speaker 1: And farm groups filed briefs in supportive Bayer, arguing that
[34:49] Speaker 1: a uniform standard is better than a patchwork of state rules.
[34:55] Speaker 8: I get the sense that the farm community is split.
[34:57] Speaker 8: I mean, there were a number of the MAH supporters
[35:01] Speaker 8: who were concerned about farmers and about you know, farmers
[35:05] Speaker 8: exposure to the use of roundup. And I think many
[35:07] Speaker 8: of the farmers echoed that the flip side is that,
[35:11] Speaker 8: you know, they find that it is a very effective
[35:13] Speaker 8: weak killer, and so you know, this is something that
[35:16] Speaker 8: many of them want to continue using. So I don't
[35:19] Speaker 8: think there's uniformity in, hey, all farmers want this, or
[35:22] Speaker 8: all farmers don't want this.
[35:24] Speaker 1: Bloomberg Intelligence litigation analyst Holly From said the arguments went
[35:29] Speaker 1: poorly for Beyor and changed her view. She now thinks
[35:33] Speaker 1: the majority of justices will find state law failure to
[35:37] Speaker 1: warn claims are not preempted by federal law, so a
[35:42] Speaker 1: loss for Beayor and consumers can pursue these claims.
[35:47] Speaker 8: Yeah, I think it's really hard to say. I don't
[35:50] Speaker 8: think the argument was as clearly in favor of Bear
[35:55] Speaker 8: as many people had expected it to be. So in
[35:58] Speaker 8: that regard, you know, it was a bit of a
[36:00] Speaker 8: blow to Bear. I think there's stockfelf. It doesn't mean
[36:03] Speaker 8: that it won't ultimately be decided in Bear's favor, but
[36:06] Speaker 8: it didn't go as many people work predicting it would.
[36:10] Speaker 1: Could the decision here affect the medical device, cosmetic and
[36:14] Speaker 1: food industries that are governed by laws similar to the
[36:17] Speaker 1: one at the center of the Beyer case.
[36:20] Speaker 8: You know, it's hard to say without seeing how broadly
[36:23] Speaker 8: or how narrowly the Supreme Court decision is written. Traditionally,
[36:27] Speaker 8: the Supreme Court has only decided what it has to decide,
[36:31] Speaker 8: and you know there's this question of okay, well, if
[36:33] Speaker 8: they decide this about the pesticide Act, What does it
[36:36] Speaker 8: say about the Food Drug Cosmetic Act, et cetera. Certainly
[36:39] Speaker 8: it would be potentially persuasive in other areas, but again,
[36:44] Speaker 8: depending on how broadly or how narrowly written it is,
[36:47] Speaker 8: it certainly doesn't carry the day in other acts.
[36:51] Speaker 1: Well, it's going to be very interesting to see if
[36:54] Speaker 1: the decision cuts across ideological lines as well. Thanks so much, Beth.
[36:59] Speaker 1: That's for us, or Elizabeth Birch of the University of
[37:02] Speaker 1: Georgia Law School. And that's it for this edition of
[37:05] Speaker 1: The Bloomberg Law Show. Remember you can always get the
[37:07] Speaker 1: latest legal news on our Bloomberg Law podcasts. You can
[37:11] Speaker 1: find them on Apple Podcasts, Spotify, and at www dot
[37:15] Speaker 1: Bloomberg dot com, slash podcast Slash Law, and remember to
[37:19] Speaker 1: tune into The Bloomberg Law Show every weeknight at ten
[37:22] Speaker 1: pm Wall Street Time. I'm June Grosso and you're listening
[37:26] Speaker 1: to Bloomberg

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