# Comey Defense & Michael Jordan NASCAR Court Win

An episode of [Bloomberg Law](https://invisiblenetwork.ai/podcast/277975394), 7 Nov 2025, 34 min.

Audio: https://podtrac.com/pts/redirect.mp3/traffic.omny.fm/d/clips/e73c998e-6e60-432f-8610-ae210140c5b1/7c892d84-801f-4c0b-b0e9-ae2b0012ff5f/fcc08f1f-adb6-4840-9465-b38e002b32da/audio.mp3?utm_source=Podcast&in_playlist=91224201-26a6-429d-ac3c-ae2b0012ff6d

Former federal prosecutor Robert Mintz, a partner at McCarter & English, discusses former federal prosecutor James Comey’s defense. Antitrust law expert, Harry First, a professor at NYU Law School, discusses the pre-trial win for Michael Jordan in his antitrust fight against NASCAR. June Grasso hosts. See omnystudio.com/listener for privacy information.

## Transcript

[0:02] Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
[0:08] Speaker 1: My heart is broken for the Department of Justice, but
[0:12] Speaker 1: I have great confidence in the federal judicial system. I'm innocent,
[0:17] Speaker 1: so let's have a trial.
[0:18] Speaker 2: But will the criminal case against former FBI Director James
[0:23] Speaker 2: Comy even get to trial. Comy's defense has filed several
[0:27] Speaker 2: motions to get the case dismissed before trial, including emotion
[0:32] Speaker 2: to dismiss because the government engaged in a vindictive and
[0:36] Speaker 2: selective prosecution against him, and emotion to dismiss because the
[0:41] Speaker 2: US Attorney Lindsay Halligan was illegally appointed. And yesterday, a
[0:47] Speaker 2: frustrated judge scolded the prosecution for its indict first, investigate
[0:53] Speaker 2: second approach to Comy's case. He ordered prosecutors to turn
[0:58] Speaker 2: over the grand jury transcript, phips and a trove of
[1:01] Speaker 2: materials from the investigation. Comy has pleaded not guilty to
[1:06] Speaker 2: the charges of lying to Congress in twenty twenty, charges
[1:10] Speaker 2: filed days after President Donald Trump appeared to urge his
[1:14] Speaker 2: attorney general to prosecute the former FBI director and other
[1:19] Speaker 2: perceived political enemies. Joining me is former federal prosecutor Robert
[1:25] Speaker 2: Mintz a partner mat Carter in English. A federal judge
[1:29] Speaker 2: yesterday scolded the prosecutors for what he described as their
[1:34] Speaker 2: indict first and investigate second approach to the case, saying,
[1:38] Speaker 2: this is not a typical case. Isn't that what Comy
[1:40] Speaker 2: has been saying?
[1:41] Speaker 3: The magistrate judge, who handles the discovery phase of the
[1:46] Speaker 3: potential trial, was clearly frustrated with prosecutors and ultimately instructed
[1:52] Speaker 3: them by the end of the day today to turn
[1:54] Speaker 3: over grand jury materials and other evidence that investigators had
[1:59] Speaker 3: seized or the investigation. The judge was frustrated with a
[2:04] Speaker 3: lack of information that federal prosecutors had regarding evidence that
[2:09] Speaker 3: was seized back in twenty nineteen and twenty twenty when
[2:13] Speaker 3: prosecutors executed a search warrant on Columbia law professor Daniel
[2:19] Speaker 3: Richman's office in connection with an investigation that was conducted
[2:24] Speaker 3: during Trump's first administration. That's part of an increy into
[2:27] Speaker 3: whether or not here Comy had illegally shared classified information.
[2:31] Speaker 3: The Justice Department back then during Trump's first term, closed
[2:35] Speaker 3: the investigation without charges, but now prosecutors are seeking to
[2:39] Speaker 3: use that evidence in this criminal prosecution of James Comy,
[2:43] Speaker 3: and that's what the magistrate judge was frustrated about because
[2:47] Speaker 3: Comy's lawyers argued that they had yet to see that
[2:50] Speaker 3: information and some of it may be privileged since at
[2:53] Speaker 3: one point mister Richmond was acting as an attorney to
[2:57] Speaker 3: James Comy.
[2:58] Speaker 4: Prosecutors were or to turn over all of.
[3:01] Speaker 3: That information, including what went on in front of the
[3:04] Speaker 3: grand jury when the indictment was obtained against Comy.
[3:08] Speaker 2: Besides attorney client privileged questions, the defense is also claiming
[3:14] Speaker 2: that prosecutors shouldn't be allowed to use that because it
[3:18] Speaker 2: was obtained through search warrants, as you said, that were
[3:20] Speaker 2: approved in a different investigation involving a different set of
[3:24] Speaker 2: alleged crimes than Comy faces.
[3:27] Speaker 3: Now, well, as you say, what happened was that prosecutors
[3:31] Speaker 3: executed four search warrants on Richmond's devices between twenty nineteen
[3:36] Speaker 3: and twenty twenty, allowing investigators to review his computer hard drive,
[3:41] Speaker 3: for example, his email account, iCloud devices. And that's because
[3:45] Speaker 3: Richmond had briefly represented Comy as an attorney after Trump
[3:49] Speaker 3: fired him as FBI director in twenty seventeen, some of
[3:53] Speaker 3: that information might be protected by the attorney client privilege,
[3:56] Speaker 3: But the Comy lawyers are arguing beyond the privilege issue,
[4:00] Speaker 3: it's simply unfair for that information to be admitted in
[4:04] Speaker 3: this case because, as you say, this is a different case.
[4:08] Speaker 3: The search warrant was obtained based upon information that was
[4:12] Speaker 3: searching for different evidence and potential different criminal violations. So
[4:16] Speaker 3: they're saying, different investigation, different set of alleged crimes, and
[4:21] Speaker 3: therefore the information that was obtained from those four search
[4:24] Speaker 3: warrants should not be admitted in this criminal case.
[4:27] Speaker 2: I take it that that doesn't happen often.
[4:30] Speaker 4: No, it doesn't happen often. And I think you also have.
[4:32] Speaker 3: To bear in mind that the twenty nineteen and twenty
[4:35] Speaker 3: twenty search warrants authorized agents to review Richmond's devices only
[4:41] Speaker 3: for potential evidence of specific crimes, and so in that case,
[4:46] Speaker 3: while search warrants are generally fairly broad, they list a
[4:49] Speaker 3: slew of crimes for which evidence may be sees, and
[4:53] Speaker 3: they're fairly broad, and they give a great deal of
[4:56] Speaker 3: latitude to agents in terms of seizing evidence. In this case,
[4:59] Speaker 3: it appears that those search warrants were very limited, or
[5:02] Speaker 3: certainly more limited than they typically are, and it only
[5:06] Speaker 3: allowed the government to review material that was relevant to
[5:10] Speaker 3: the specific crimes that were laced in the search warrants.
[5:13] Speaker 3: So it raises the question about number one, whether the
[5:16] Speaker 3: government has reviewed information that went beyond the scope of
[5:19] Speaker 3: those initial search warrants. And secondly, whether the information that
[5:24] Speaker 3: was derived from search warrants that were permitted only to
[5:27] Speaker 3: investigate certain crimes could be used now to investigate a
[5:30] Speaker 3: crime that was not contemplated at the time that the
[5:33] Speaker 3: search warrants were issued.
[5:35] Speaker 2: And apparently the prosecutors have been using information obtained from
[5:40] Speaker 2: those search warrants in court papers when it hasn't gone
[5:44] Speaker 2: through the judge yet.
[5:46] Speaker 3: Homie's lawyers raised two interesting points before the Magistrate Judge
[5:50] Speaker 3: Number one.
[5:51] Speaker 4: They argued that at the time that.
[5:53] Speaker 3: Those records were seized from mister Richmond, mister Richmond's lawyers
[5:58] Speaker 3: were permitted to review the evidence and to remove anything
[6:02] Speaker 3: they thought was covered by the attorney client privilege. But
[6:05] Speaker 3: mister Comy's lawyers never saw this evidence and never had
[6:08] Speaker 3: an opportunity to review it prior to it being used.
[6:11] Speaker 4: By prosecutors here.
[6:13] Speaker 3: So they're arguing in the first instance, that privilege belongs
[6:17] Speaker 3: to James Comy doesn't belong to mister Richmond, and mister
[6:20] Speaker 3: Richmond's interests may have been different at that time than
[6:24] Speaker 3: James Comy's interests are now. So the judge apparently agreed
[6:27] Speaker 3: with them and said, everything seized back in twenty nineteen
[6:30] Speaker 3: and twenty twenty, you've got to turn over to Comy's
[6:32] Speaker 3: lawyers so they can go through it and they can
[6:34] Speaker 3: make a separate argument as to whether or not any
[6:36] Speaker 3: of that information is privileged or not. And the second
[6:40] Speaker 3: point is that they are arguing that prosecutors have already
[6:44] Speaker 3: used this material in some of their filings with the court,
[6:47] Speaker 3: and the judge seemed to take an interest in that,
[6:50] Speaker 3: and he warrant prosecutors that if they quote in court
[6:53] Speaker 3: filings from that information that was seized from those search
[6:57] Speaker 3: warrants before mister Comy's lawyers have an opportunity to complete
[7:02] Speaker 3: their review, that they do so quote at their own risk. Interestingly,
[7:07] Speaker 3: if the judge's later rules that prosecutors should not have
[7:10] Speaker 3: had access to those these communications, it would arguably taint
[7:13] Speaker 3: the entire case and would provide a basis for Comey's
[7:16] Speaker 3: lawyers to move to dismiss the indictment.
[7:19] Speaker 2: Comey's defense lawyers had already asked for a transcript of
[7:23] Speaker 2: the grand jury proceedings. And this relates to Lindsey Halligan,
[7:28] Speaker 2: who was installed as US attorney hastily. She has no
[7:33] Speaker 2: experience as a prosecutor, and she personally presented the case
[7:39] Speaker 2: against Komy and New York Attorney General Letitia James to
[7:43] Speaker 2: the grand jury with no help from experienced prosecutors who
[7:47] Speaker 2: were not willing to take part in the grand jury proceedings.
[7:52] Speaker 2: So Comy's defenses claiming that there were irregularities during the
[7:57] Speaker 2: presentation to the grand jury. Let's say you've never presented
[8:02] Speaker 2: a case to a grand jury. You don't have anyone
[8:04] Speaker 2: experienced in the grand jury room with you to help
[8:08] Speaker 2: you out. How difficult is it to present a case
[8:11] Speaker 2: to a grand jury properly?
[8:13] Speaker 3: Well, if you're an experienced prosecutor, appearing before the grand
[8:16] Speaker 3: jury is fairly routine and not that difficult. It's not
[8:20] Speaker 3: like in your presentation before the grand jury, complicated legal
[8:24] Speaker 3: issues typically arise. But in this case, the prosecutor, Lindsay Halligan,
[8:29] Speaker 3: had just been appointed as an interim US attorney in
[8:33] Speaker 3: the Eastern District of Virginia and had never presented a
[8:36] Speaker 3: case before a grand jury before Comy's lawyers are arguing
[8:40] Speaker 3: that they're entitled to pull back the curtain on that
[8:43] Speaker 3: grand jury proceding, something that very rarely happens. Generally, once
[8:48] Speaker 3: an indictment is returned, prosecutors and the defense move on
[8:52] Speaker 3: to the trial itself, and there's generally not a basis
[8:56] Speaker 3: to go back and review the presentation before the grand
[8:59] Speaker 3: jury unless there is some evidence of some type of
[9:02] Speaker 3: serious irregularity, and that's exactly what Comy's lawyers are arguing here.
[9:07] Speaker 3: They have asked the judge to provide them with all
[9:09] Speaker 3: the grand jury materials, and the judge has ordered that
[9:12] Speaker 3: the government turned that over, and the basis of their
[9:15] Speaker 3: argument is that there were a series of irregularities. They
[9:17] Speaker 3: point to the fact that Miss Halligan kept the grand
[9:21] Speaker 3: jurors beyond normal business hours after the grand jury voted
[9:25] Speaker 3: to indict on two charges but refused to indict on
[9:28] Speaker 3: a third. They also argue that she may have used
[9:32] Speaker 3: attorney client privileged information in her presentation, and then there
[9:36] Speaker 3: was a further irregularity because she apparently signed two indictments,
[9:41] Speaker 3: one of them was the one that was actually returned
[9:43] Speaker 3: by the grand jury, and the other indictment was the
[9:45] Speaker 3: one that was rejected by the grand jury, at least
[9:48] Speaker 3: as to one count.
[9:49] Speaker 4: And given all of.
[9:50] Speaker 3: These irregularities, the magistrate judge has taken the unusual step
[9:54] Speaker 3: of saying to Comy's lawyers, you're entitled to review this
[9:57] Speaker 3: entire proceeding, and there's little doubt that once they do that,
[10:01] Speaker 3: there will be some other issues that they will be
[10:03] Speaker 3: able to raise as to why the presentation was not valid.
[10:07] Speaker 3: And if they can ultimately convince the judge that the
[10:10] Speaker 3: irregularities are serious enough so that it taints the entire
[10:13] Speaker 3: grand jury process and that indictment is thrown out, they
[10:17] Speaker 3: may well have won their case because the station of
[10:19] Speaker 3: limitations I'm sure they will argue, has now expired.
[10:23] Speaker 2: Coming up next on the Bloomberg Law Show, I'll continue
[10:25] Speaker 2: this conversation with former federal prosecutor Robert Mintz. Attorney General
[10:31] Speaker 2: Pam Bondi basically wants a do over, and Comy's defense
[10:36] Speaker 2: team wants to know what's the lie Comy supposedly told.
[10:40] Speaker 2: And later in the show, Michael Jordan's racing team wins
[10:44] Speaker 2: a key legal fight in his anti trust feud with NASCAR.
[10:49] Speaker 2: I'm June Grosso and you're listening to Bloomberg. The indictment
[10:54] Speaker 2: of former FBI director James Comy came just five days
[10:59] Speaker 2: after sident Donald Trump, in a post on truth Social
[11:03] Speaker 2: demanded that Attorney General Pam Bondi bring charges against his
[11:07] Speaker 2: perceived enemies, naming Komy, New York Attorney General Letitia James,
[11:13] Speaker 2: and California Senator Adam Schiff. The charges center on testimony
[11:18] Speaker 2: Comy gave in response to questions from Republican Senator Ted
[11:22] Speaker 2: Cruz during a twenty twenty hearing over the FBI's investigation
[11:27] Speaker 2: into Russian interference in the twenty sixteen election.
[11:31] Speaker 1: What mister McKay is saying and what you testify to
[11:34] Speaker 1: this committee cannot both be true.
[11:36] Speaker 4: One or the other is false. Who's telling the truth?
[11:41] Speaker 1: I can only speak to my testimony.
[11:42] Speaker 5: I stand by what the testimony you summarized that I
[11:45] Speaker 5: gave in May of twenty seventeen.
[11:47] Speaker 2: Comy's defense team is trying to get the charges drop
[11:51] Speaker 2: before trial. They've filed several motions, including a motion to
[11:56] Speaker 2: dismiss because the government engaged in a vindictive and selective
[12:00] Speaker 2: prosecution and a motion to dismiss because the US Attorney
[12:05] Speaker 2: was illegally appointed. I've been talking to former federal prosecutor
[12:10] Speaker 2: Robert Mintz of Maccarter and English, so Bob. One of
[12:13] Speaker 2: the big arguments that Komy is making, as well as
[12:17] Speaker 2: New York Attorney General Letitia James, is that Lindsay Halligan
[12:22] Speaker 2: was illegally appointed to the position of US Attorney for
[12:26] Speaker 2: the Eastern District of Virginia. So Attorney General Pambondi has
[12:32] Speaker 2: retro actively given Halligan an extra title of special Attorney
[12:38] Speaker 2: to try to withstand the claims that she was illegally
[12:42] Speaker 2: serving when she brought the charges. I mean, will the
[12:45] Speaker 2: court let her sort of erase her mistake and say, oh,
[12:48] Speaker 2: by the way, would a court actually let her do
[12:51] Speaker 2: a retroactive appointment.
[12:54] Speaker 4: Well, that remains to be seen.
[12:55] Speaker 3: We don't usually see this kind of litigation, the appointment
[13:00] Speaker 3: of a US attorney. I won't say that it never happens,
[13:03] Speaker 3: but it certainly does not typically happen. And here we
[13:07] Speaker 3: had a situation where the argument was that Halligan was
[13:10] Speaker 3: not lawfully appointed as interim US attorney and she shouldn't
[13:13] Speaker 3: have been in front of that grand jury in the
[13:15] Speaker 3: first place. And the argument is that the Attorney General
[13:18] Speaker 3: had appoint at Halligan's predecessor, an experienced prosecutor from the
[13:23] Speaker 3: Eastern District of Virginia to lead that office, and that
[13:26] Speaker 3: appointment was made on January twenty first. That starts this
[13:30] Speaker 3: one hundred and twenty day clock ticking under the statute,
[13:33] Speaker 3: which allows time in most circumstances for that prosecutor to
[13:39] Speaker 3: get confirmed by the Senate. In this case, mister Siebert
[13:42] Speaker 3: was not confirmed, and after one hundred and twenty days
[13:45] Speaker 3: expires under the statute. The defense will argue the District Court,
[13:50] Speaker 3: not the Justice Department, has exclusive power to appoint the
[13:54] Speaker 3: interim US Attorney. That clock ran out on May twenty
[13:57] Speaker 3: first of twenty twenty five, at which.
[14:00] Speaker 4: Point the Court reappointed Seber.
[14:03] Speaker 3: As United States Attorney to serve until the vacancy is filled.
[14:07] Speaker 4: Then Sebert was fired, and.
[14:09] Speaker 3: The defense has argued that the District Court at that
[14:12] Speaker 3: point was the only legitimate appointing authority and that the
[14:15] Speaker 3: Attorney General and the President did not have the power
[14:19] Speaker 3: to appoint Miss Halligan to another one hundred and twenty
[14:22] Speaker 3: day term.
[14:23] Speaker 2: Do you think that this retro active title giving will
[14:27] Speaker 2: fly with a judge.
[14:29] Speaker 3: I think the argument by the Attorney General that she
[14:32] Speaker 3: can retroactively give Eastern Virginia's top prosecutors an extra title
[14:37] Speaker 3: in order to try to defend against the claims that
[14:40] Speaker 3: Halligan was improperly appointed. Is probably not going to gain
[14:45] Speaker 3: a lot of traction with the courts.
[14:46] Speaker 4: Typically, the courts.
[14:47] Speaker 3: Will look at the facts at the time and whether
[14:50] Speaker 3: or not the appointment was proper under the rules, under
[14:53] Speaker 3: the regulations, under the statutes at the time of the appointment.
[14:57] Speaker 3: And I think it's an uphill battle to argue that
[14:59] Speaker 3: even if there was a deficiency, then that can be
[15:02] Speaker 3: remedied retroactively by an appointment.
[15:05] Speaker 2: Komy is also claiming that the indictment is hopelessly vague
[15:09] Speaker 2: and defective on its face, and this may be a
[15:12] Speaker 2: result of Halligan having no prosecutorial experience and no help
[15:17] Speaker 2: from prosecutors. And they say that Senator Cruz's questions were
[15:22] Speaker 2: fundamentally ambiguous and that Komi's response was literally true. So
[15:28] Speaker 2: they want to know from the prosecutors, which statements are
[15:31] Speaker 2: you claiming were false? And when you listen to that
[15:36] Speaker 2: exchange between Cruz and Komi, it's hard to see where
[15:41] Speaker 2: there's even a possibility of a lie, where Comy says,
[15:44] Speaker 2: I stand by my prior testimony.
[15:46] Speaker 3: Yeah, And that's exactly why false statements. That's exactly why
[15:51] Speaker 3: false statement prosecutions are extremely difficult, because you.
[15:55] Speaker 4: Have to parse through exactly what was.
[15:58] Speaker 3: The question and what was the answer, and demonstrate that
[16:02] Speaker 3: at the time the answer was given, it was not
[16:04] Speaker 3: only false, but it was intentionally false, and that it
[16:07] Speaker 3: was false about something that was material. So in this case,
[16:12] Speaker 3: the prosecution is based on hearing before the Senate Judiciary
[16:15] Speaker 3: Committee on September thirty, is, twenty twenty, and at that hearing,
[16:18] Speaker 3: as you say, Senator Ted Cruz asked mister Comy whether
[16:22] Speaker 3: he had authorized someone at the FBI to be an
[16:25] Speaker 3: anonymous source in news reports. The indictment says mister Comy
[16:29] Speaker 3: misled the committee by saying that he had not done so. Now,
[16:32] Speaker 3: Comy's lawyers have attacked that indictment by saying that the
[16:34] Speaker 3: questioning by mister Cruz was vague and imprecise, and they
[16:39] Speaker 3: point out that at the time that Senator Cruz was
[16:42] Speaker 3: questioning mister Comy about whether he had authorized anybody to
[16:45] Speaker 3: leak information, that Senator Cruz was referring to Andrew McCabe,
[16:50] Speaker 3: who once served as mister Comy's deputy at the FBI,
[16:53] Speaker 3: and was not referring to Daniel Richman, who had been
[16:56] Speaker 3: a former FBI employee and later became the attorney for
[17:00] Speaker 3: James Comy. So they're arguing that the indictment is defective
[17:03] Speaker 3: on its face, because in order to prove that mister
[17:06] Speaker 3: Comy lied, you have to show that there was a
[17:09] Speaker 3: clear question and that he gave a clearly false, a
[17:12] Speaker 3: knowingly false answer to it, and that he had an
[17:15] Speaker 3: intention to mislead the committee, and that the information he
[17:18] Speaker 3: provided that was false was material, and that this somehow
[17:22] Speaker 3: obstructed the relevant congressional proceeding. They say that that information
[17:26] Speaker 3: is not contained in the indictment, and one of their
[17:28] Speaker 3: emotions is the requirement that the government provide that information.
[17:32] Speaker 3: So what you have here basically is an argument that
[17:35] Speaker 3: the indictment is defective on its face. So, in other words,
[17:39] Speaker 3: it's not an argument that the government has its facts wrong,
[17:42] Speaker 3: because the factual dispute is something that has to.
[17:44] Speaker 4: Be resolved by a jury at trial.
[17:47] Speaker 3: They are arguing that this is a decision that really
[17:49] Speaker 3: needs to be made by the judge, because on its face,
[17:53] Speaker 3: the government is unable to prove the charges. The allegations
[17:57] Speaker 3: in the indictment simply are not enough to succestain a
[18:00] Speaker 3: valid conviction. And that's why they're filing this whole slew
[18:04] Speaker 3: of arguments to try to get this case dismissed before
[18:07] Speaker 3: it ever goes to trial.
[18:09] Speaker 2: One argument that was being discussed even before the defense
[18:12] Speaker 2: filed its papers was, you know, a motion to dismiss
[18:16] Speaker 2: because of a vindictive and selective prosecution. And here the
[18:20] Speaker 2: comy motion includes a document with a sixty page long
[18:24] Speaker 2: list of links that detailed Trump's shall we say not
[18:28] Speaker 2: so kind statements about Coomy. I mean, how strong is
[18:32] Speaker 2: their vindictive prosecution case? I know it's hard to get
[18:35] Speaker 2: something dismissed for vindictive prosecution.
[18:38] Speaker 4: No, that's exactly right.
[18:39] Speaker 3: I mean motions for vindictive prosecution are exceedingly hard to win.
[18:43] Speaker 3: They require defendants to prove that prosecutors have displayed animus
[18:48] Speaker 3: towards them while they were seeking to exercise their rights,
[18:51] Speaker 3: and that the charges never would have been brought except
[18:54] Speaker 3: for that animus. Now, prosecutors have argued in response that
[18:58] Speaker 3: the comments made by President Trump to prosecute mister Komy,
[19:03] Speaker 3: we're only suggesting that if mister Comy committed a crime,
[19:06] Speaker 3: that they ought to prosecute him, and that he was
[19:08] Speaker 3: not directing the Department of Justice to prosecute mister Comy
[19:12] Speaker 3: regardless of whether or not a crime was committed. We'll
[19:15] Speaker 3: have to see how the judge handles that at the
[19:17] Speaker 3: end of the day. But the vindictive prosecution standard is
[19:20] Speaker 3: fairly high, and that may be a difficult argument for
[19:23] Speaker 3: the defense to prevail on.
[19:26] Speaker 4: Bob.
[19:26] Speaker 2: It seems like we're seeing case after case where judges
[19:31] Speaker 2: are questioning, rejecting, or not relying on what federal prosecutors
[19:38] Speaker 2: are telling them. We have that happening in this case
[19:41] Speaker 2: to a certain extent, and in the criminal case against
[19:45] Speaker 2: the mistakenly deported Abrego Garcia, the judge has ordered the
[19:51] Speaker 2: prosecutors to send their internal communications to him and there's
[19:56] Speaker 2: a hearing schedule for December where the number two leader
[20:00] Speaker 2: or of the Justice Department may have to testify. Today,
[20:04] Speaker 2: a judge in Chicago found that the evidence from the
[20:07] Speaker 2: government about the Border Patrol's use of force was not credible.
[20:14] Speaker 2: We've had other judges questioning whether the Justice Department is
[20:18] Speaker 2: following orders. It seems to be a crisis of confidence
[20:22] Speaker 2: where judges are not accepting at face value.
[20:26] Speaker 3: Well, there's no question that historically federal judges give great
[20:31] Speaker 3: deference to the government and specifically the US Attorney's office
[20:35] Speaker 3: when they appear in court on federal cases. How was
[20:37] Speaker 3: a federal prosecutor for almost ten years, and I can
[20:41] Speaker 3: say from experience that judges take prosecutors at their word.
[20:46] Speaker 3: They sometimes request additional information, They may request additional briefing
[20:50] Speaker 3: in order to make sure that the government has the
[20:53] Speaker 3: law right. But if a federal prosecutor makes a representation
[20:58] Speaker 3: to a federal judge in open cques court, generally that
[21:01] Speaker 3: is something historically that judges will accept. I think we
[21:05] Speaker 3: are seeing a greater degree of skepticism by judges because
[21:09] Speaker 3: we're seeing a series of unusual issues that judges have
[21:13] Speaker 3: never really faced before. For example, the issues regarding whether
[21:17] Speaker 3: or not the appointment of the US Attorney was properly
[21:19] Speaker 3: done is not something that judges typically deal with. Some
[21:22] Speaker 3: of the issues that went on in the grand jury
[21:25] Speaker 3: in the Komi indictment that we talked about earlier are
[21:29] Speaker 3: not issues that typically arise. Again, it is very unusual
[21:32] Speaker 3: for the defense to get access to the grand jury
[21:35] Speaker 3: proceeding it's a motion that defense lawyers routinely make. It
[21:39] Speaker 3: happens all the time, so it's not as if judges
[21:42] Speaker 3: are not faced with that question, but it's rarely granted.
[21:44] Speaker 3: It's we rarely have a situation where defense lawyers are
[21:47] Speaker 3: privy to that entire proceeding, because once they look at
[21:50] Speaker 3: everything that's said before that grand jury that are certainly
[21:54] Speaker 3: going to come up with some other arguments. That's to
[21:56] Speaker 3: why some of the presentation may have been improper. I
[21:59] Speaker 3: think it's fair to say that there have been examples
[22:02] Speaker 3: of where federal judges are not nearly as deferential to
[22:05] Speaker 3: federal prosecutors as they have been in the past.
[22:09] Speaker 2: That deprives them of one advantage they have over defense attorneys.
[22:13] Speaker 2: Thanks so much, Bob. That's Robert Mince of McCarter and English.
[22:17] Speaker 2: Coming up next on the Bloomberg Law Show, Michael Jordan's
[22:21] Speaker 2: racing team wins a key legal fight in his anti
[22:24] Speaker 2: trust feud with NASCAR. Will the case be settled or
[22:29] Speaker 2: go to trial? On December first, I'm June Grosso and
[22:32] Speaker 2: you're listening to Bloomberg.
[22:36] Speaker 5: Look, I've been a fan of the game for a
[22:37] Speaker 5: long period of time, you know, and you know, when
[22:40] Speaker 5: we first started this goal process, I've always said that
[22:43] Speaker 5: y'all want to fight for the betterment of the sport.
[22:46] Speaker 5: You know, even though they try to point out that,
[22:48] Speaker 5: you know, we made you know, some money, or we
[22:50] Speaker 5: had successful business, that's not the point. The point is
[22:53] Speaker 5: is that the sport itself needs to continually change for
[22:57] Speaker 5: the for the fans as well as for the teams,
[22:59] Speaker 5: as well as the NASCAR too, if you understand that.
[23:01] Speaker 2: And Michael Jordan's racing team secured a crucial win in
[23:05] Speaker 2: its anti trust case against NASCAR this week. On Tuesday,
[23:09] Speaker 2: a federal judge rule that Premier stock Car Racing is
[23:13] Speaker 2: its own, separate and distinct market. That strengthens Jordan's anti
[23:19] Speaker 2: trust claims as his team twenty three to eleven Racing
[23:22] Speaker 2: and co plaintiff front Row Motorsports head towards December first
[23:27] Speaker 2: trial against the racing organization.
[23:30] Speaker 5: Look, I look forward to going down the fire. If
[23:33] Speaker 5: I have to fight this to the end for the
[23:35] Speaker 5: betterment of the sport, how we'll do that?
[23:37] Speaker 2: So will there be a trial on December first or
[23:40] Speaker 2: a settlement joining me?
[23:42] Speaker 3: Is?
[23:42] Speaker 2: Anti trust law expert Harry First, a professor at NYU
[23:45] Speaker 2: law school. Harry explained Michael Jordan's anti trust case against NASCAR.
[23:51] Speaker 1: This is a tussle between the family that has controlled
[23:55] Speaker 1: NASCAR and I guess stock car racing for many years.
[24:00] Speaker 1: Apparently almost uniquely in sports. You know, most sports are
[24:06] Speaker 1: controlled by groups of team owners, but this is one
[24:10] Speaker 1: that's only controlled by one family, this France family. You know,
[24:14] Speaker 1: I guess, It's had its ups and downs, but it's
[24:17] Speaker 1: pretty up now. You know. They're sort of the only
[24:21] Speaker 1: real game in town for the Top Line Cup racing.
[24:26] Speaker 1: There basically been arguments between the owners of these racing
[24:31] Speaker 1: teams and the Frances over who's gonna, you know, sort
[24:37] Speaker 1: of split the money, particularly broadcast revenue. I think they
[24:41] Speaker 1: both need each other. Race car owners need tracks to
[24:45] Speaker 1: race on, and NASCAR, you know, has made itself through
[24:49] Speaker 1: a series of moves, acquisitions and so forth, is basically
[24:53] Speaker 1: the only place where you can have these high level races.
[24:56] Speaker 1: And of course you've got to have the race cars
[25:01] Speaker 1: or else you've got nothing to show. So they both
[25:04] Speaker 1: need each other. But apparently the racing teams have not
[25:08] Speaker 1: been hugely profitable. Unlike other sports. It's very expensive to
[25:13] Speaker 1: maintain these According to the litigation anyway, and the France's
[25:18] Speaker 1: So the plaintiffs say, the plaintiff's being two of these
[25:22] Speaker 1: teams anyway, one being this twenty three to eleven racing,
[25:25] Speaker 1: which is Michael Jordan's. Now, the plaintiffs say that they
[25:29] Speaker 1: take most of the revenue, particularly the broadcast revenue, and
[25:33] Speaker 1: we're not getting enough, you know. The Francis say, well,
[25:36] Speaker 1: you don't like it, take it or leave it, and
[25:39] Speaker 1: that's when the litigation particularly broke out.
[25:42] Speaker 2: It sounds like anti trust to me, but sounds like
[25:45] Speaker 2: path sounds like it is it? So this partial summary
[25:49] Speaker 2: judgment motion was about the relevant market, which we've talked
[25:54] Speaker 2: about before is key to anti trust.
[25:58] Speaker 1: Right. So the litigation has had a little back and forth.
[26:02] Speaker 1: The district court judge seems pretty well disposed to the
[26:05] Speaker 1: plaintiff's claims, at one point issuing this injunction requiring NASCAR
[26:11] Speaker 1: to admit the two teams into the I guess it
[26:15] Speaker 1: was the twenty twenty four circuit and the Court of
[26:19] Speaker 1: Appeals knocked that down for various reasons. So just within
[26:24] Speaker 1: I guess it's the last few days, right, the district
[26:27] Speaker 1: court judge granted the plaintiff's motion for partial summary judgement.
[26:32] Speaker 1: I mean, some of the important issues are now out
[26:34] Speaker 1: of the case, and particularly as you mentioned, this contentious
[26:38] Speaker 1: issue over what's the relevant market. Is it just this
[26:42] Speaker 1: NASCAR premier racing market? Does it include, you know, other
[26:47] Speaker 1: kinds of stock car racing? There are other tiers? Does
[26:51] Speaker 1: it include other motor sports? The game and anty trust
[26:55] Speaker 1: If you're a defendant as to constantly include different kinds
[26:58] Speaker 1: of substitutes, people would watch. But here the market is
[27:03] Speaker 1: a labor market that they're arguing about, and the question is,
[27:07] Speaker 1: you know, what are the choices available for these race
[27:11] Speaker 1: car drivers who are selling their services? And this is
[27:15] Speaker 1: basically it. So it looked like a pretty strong claim
[27:19] Speaker 1: on market definition. But proving market definition is expensive, you know,
[27:24] Speaker 1: requires lots of experts, and they went through to the stage.
[27:28] Speaker 1: Now this is before you get to the jury, this
[27:31] Speaker 1: summary judgment stage, but a lot of the record's been developed,
[27:36] Speaker 1: and the district court judge sort of took an interesting
[27:40] Speaker 1: turn on this. He said, well, if there's a dispute
[27:44] Speaker 1: of fact, which there always is, in market definition, I
[27:47] Speaker 1: think it's really broad. You know, well, you could have
[27:51] Speaker 1: lots of race car drivers, there are lots of choices
[27:54] Speaker 1: that the race car drivers have. I think it's really narrow,
[27:59] Speaker 1: say the plaintiffs. So lots of things to argue in
[28:02] Speaker 1: front of a jury. But the judge says, ah, guess what, NASCAR.
[28:08] Speaker 1: You filed a counterclaim against these driver teams which had
[28:13] Speaker 1: gotten together to jointly negotiate with NASCAR over these agreements
[28:19] Speaker 1: to their charges that they've got. So we're alleging that
[28:24] Speaker 1: you sort of engage in a price fixing conspiracy. So
[28:28] Speaker 1: they filed a counterclaim. Now, unfortunately for them, when you
[28:32] Speaker 1: file a complaint in anti trust, normally you have to
[28:37] Speaker 1: put in your complaint what the relevant market is. So
[28:40] Speaker 1: they defined a market which was pretty much the same
[28:43] Speaker 1: as the market that Michael Jordan defined, all different wording,
[28:49] Speaker 1: but basically the same labor market. It's these racing teams
[28:53] Speaker 1: or you know, the premier stock car racing group, you
[28:57] Speaker 1: know at the very top. So they basically to find
[29:00] Speaker 1: the same market. So the judge says, sorry, you've already
[29:04] Speaker 1: admitted it, and you know we hold that you've made
[29:06] Speaker 1: this admission. That's your admission. So we're done, and you're done,
[29:12] Speaker 1: and we don't have to try this issue. I'm sure
[29:15] Speaker 1: that defendants and their lawyers were not all that happy
[29:18] Speaker 1: with that, and I mean, I think it's pretty supportable
[29:21] Speaker 1: on appeal, and there would have been ways to handle
[29:25] Speaker 1: the complaint that didn't fall into this trap, but they
[29:29] Speaker 1: didn't do it this way, and they were sort of
[29:32] Speaker 1: too clever by half. It was a very clever counterclaim,
[29:35] Speaker 1: but there was no requirement that they even needed to
[29:38] Speaker 1: file it. Then well, it's not quite the ballgame. So
[29:43] Speaker 1: the judge also did something else, not just the market definition,
[29:46] Speaker 1: but you have to have monopoly power or in this
[29:48] Speaker 1: case monops AEE power as the sole buyer, and there
[29:52] Speaker 1: have to be high barriers to entry, hard to get
[29:55] Speaker 1: into this market. And the judge found on all of
[29:59] Speaker 1: those things they've had this position for years and years
[30:02] Speaker 1: as the sole buyer. It's very hard to have a
[30:06] Speaker 1: competing league. It's hard to even start your own racing team.
[30:11] Speaker 1: They had estimates on that in the record. So the
[30:15] Speaker 1: judge said, no, you've got this high entry barrier. It's
[30:18] Speaker 1: very hard to enter. There are really no substitutes. There
[30:22] Speaker 1: aren't other teams out there, you know, to race. So
[30:26] Speaker 1: on the having monopoly or monopsony power interrelevant market is
[30:31] Speaker 1: now out of the case. But that still leaves the
[30:35] Speaker 1: question really two questions. One is they have to engage
[30:39] Speaker 1: in some anti competitive conduct that maintains their monopoly position,
[30:45] Speaker 1: and that's still going to go to trial, and that involves,
[30:49] Speaker 1: you know, maybe their acquisitions of these other tracks, which
[30:52] Speaker 1: they did. There were some exclusive agreements. There's this agreement
[30:57] Speaker 1: that if you sign an agreement, you wave your an
[31:00] Speaker 1: he trust claims. All of those will go together into
[31:03] Speaker 1: a trial. And then there's the question of damages, and
[31:07] Speaker 1: that's going to be interesting because you know, the plaintiffs
[31:11] Speaker 1: want more money. As the plaintiffs always won, I say
[31:15] Speaker 1: you took too much, I didn't get enough. But they
[31:17] Speaker 1: have to show what the competitive rate would be for
[31:22] Speaker 1: these teams, and you know that's going to be a
[31:25] Speaker 1: battle of their economists. So there's still a distance to go.
[31:29] Speaker 1: Maybe maybe we'll never get there, and the parties are
[31:31] Speaker 1: now going to settle. I don't know, but this I
[31:34] Speaker 1: think was a pretty big win for the plaintiffs.
[31:37] Speaker 2: People are saying that this will put pressure on both
[31:41] Speaker 2: sides to settle. After the latest court hearing, Michael Jordan's
[31:45] Speaker 2: said that settlement has always been on the table, and.
[31:48] Speaker 1: It seems to me what they're really arguing over is
[31:51] Speaker 1: how do we split the pot so that the teams
[31:54] Speaker 1: have enough money to invest in these fast cars and
[31:59] Speaker 1: you know, all the things we need to do, and
[32:01] Speaker 1: you know, at the end of the day, perhaps unfortunately
[32:04] Speaker 1: for consumers, there's not going to be another circuit because
[32:08] Speaker 1: these are private planeiffs pursuing this. So the goal is
[32:11] Speaker 1: not to split up NASCAR, so there are competing circuits
[32:16] Speaker 1: and you'd have real competition in this kind of racing.
[32:20] Speaker 1: This is not Michael Jordan's goal. It's not the goal
[32:23] Speaker 1: of private parties. The goal is to basically split the
[32:27] Speaker 1: monopoly profits differently so they will likely benefit you know, consumers.
[32:33] Speaker 1: I don't know, maybe not so much.
[32:35] Speaker 2: If I'm the defendant. I don't want to be in
[32:37] Speaker 2: a courtroom sitting opposite Michael Jordan with his star power.
[32:42] Speaker 2: I mean, you know how juries are mesmerized right by stars, and.
[32:47] Speaker 1: Asking for damages in a jury trial is a good move,
[32:50] Speaker 1: particularly these days. I mean, juries have come in with
[32:53] Speaker 1: some pretty big verdicts in these big cases against major defendants.
[32:57] Speaker 1: You know, Google is one example. So yeah, defendants have
[33:03] Speaker 1: never liked Church, let's put it that way. You know,
[33:06] Speaker 1: they don't want the subway sandwich thrown.
[33:09] Speaker 2: At them, but the jury today did not convict the
[33:12] Speaker 2: thrower of the subway sandwich. Thanks so much, Harry. That's
[33:16] Speaker 2: Professor Harry First of NYU Law School, and that's it
[33:20] Speaker 2: for this edition of The Bloomberg Law Show. Remember you
[33:23] Speaker 2: can always get the latest legal news on our Bloomberg
[33:25] Speaker 2: Law Podcast. You can find them on Apple Podcasts, Spotify,
[33:29] Speaker 2: and at www dot bloomberg dot com, slash podcast Slash Law,
[33:35] Speaker 2: and remember to tune into The Bloomberg Law Show every
[33:37] Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso
[33:41] Speaker 2: and you're listening to Bloomberg

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