# Weekend Law: Comey's Motions, Meta Wins & Texas Maps

An episode of [Bloomberg Law](https://invisiblenetwork.ai/podcast/277975394), 22 Nov 2025, 38 min.

Audio: https://podtrac.com/pts/redirect.mp3/traffic.omny.fm/d/clips/e73c998e-6e60-432f-8610-ae210140c5b1/7c892d84-801f-4c0b-b0e9-ae2b0012ff5f/7c6d7839-ab54-4228-9453-b39d0158373e/audio.mp3?utm_source=Podcast&in_playlist=91224201-26a6-429d-ac3c-ae2b0012ff6d

June Grasso speaks to legal experts about the top law stories of the week. 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 2: The Justice Department's indictment of James Comy was riddled with
[0:13] Speaker 2: problems that may give the former FBI director legal grounds
[0:17] Speaker 2: to have it dismissed. And that's according to a federal judge.
[0:22] Speaker 2: Comy's been charged with making false statements and obstructing Congress
[0:27] Speaker 2: and Magistrate Judge William Fitzpatrick cited eleven potential missteps by
[0:32] Speaker 2: the Justice Department in the lead up to filing those charges,
[0:37] Speaker 2: including fundamental misstatements of the launch to the grand jury
[0:41] Speaker 2: by the prosecutor, Lindsay Halligan, and the use of potentially
[0:45] Speaker 2: privileged communications. And he's ordered an extraordinary remedy the release
[0:51] Speaker 2: of all grand jury materials to the defense. That's been
[0:55] Speaker 2: put on hold pending a review by the District Court
[0:58] Speaker 2: Judge Jimy his former federal prosecutor, Robert Mintz, a partner
[1:03] Speaker 2: maccarter in English, Bob In some ways, the judge's opinion
[1:08] Speaker 2: seems like a guideline for the defense to ask for
[1:11] Speaker 2: a dismissal of the indictment. He outlined the procedural and
[1:15] Speaker 2: substance of irregularities that occurred before the grand jury and
[1:19] Speaker 2: said they may give Comby legal grounds to have one
[1:22] Speaker 2: or more of the counts dismissed. Pretty harsh condemnation of
[1:26] Speaker 2: the government's actions.
[1:28] Speaker 3: It was extremely unusual, because it's extremely rare in the
[1:32] Speaker 3: first place for a judge to be reviewing conduct in
[1:36] Speaker 3: front of a grand jury. So what the magistrate judge
[1:39] Speaker 3: was pasked with in this circumstance was to decide whether
[1:43] Speaker 3: mister Comy had met the very high bar for a
[1:46] Speaker 3: defendant to be given full access to the transcripts and
[1:50] Speaker 3: recordings of a grand jury proceeding. What ended up happening
[1:53] Speaker 3: here was that, in addition to the reasons that Combe's
[1:56] Speaker 3: lawyers had argued for access to the grand jury matif,
[2:00] Speaker 3: the judge found from his own review of the materials
[2:03] Speaker 3: a host of new problems, new issues that could ultimately
[2:07] Speaker 3: lead to the dismissal of the case. The judge went
[2:10] Speaker 3: through a series of potential issues that he decided the
[2:15] Speaker 3: defense was entitled to probe and to raise before the
[2:19] Speaker 3: court as a basis to possibly dismiss the indictment. One
[2:22] Speaker 3: of the original issues that Comy's lawyers raised as a
[2:26] Speaker 3: basis for accessing the grand jury material had to do
[2:30] Speaker 3: with search warrants that were executed by the Department of
[2:33] Speaker 3: Justice in twenty nineteen and twenty twenty in connection with
[2:37] Speaker 3: an entirely separate, earlier investigation which took place during President
[2:41] Speaker 3: Trump's first presidency and had to do with the potential
[2:45] Speaker 3: leaking of information to the media about ongoing investigations by
[2:50] Speaker 3: the FBI, and the search warrants were focused on a
[2:53] Speaker 3: Columbia University law professor, Daniel Richman, who was a friend
[2:57] Speaker 3: of mister Comy's, but who would also end up repris
[3:00] Speaker 3: presenting him as his lawyer, and that created the question
[3:04] Speaker 3: of whether or not the information might have been covered
[3:06] Speaker 3: by the attorney client privilege. The judge here raised a
[3:11] Speaker 3: number of issues as to whether or not there could
[3:13] Speaker 3: have been a violation of mister Comy's rights, and whether
[3:16] Speaker 3: or not privileged information might have seeped into the grand
[3:20] Speaker 3: jury presentation and that would have been entirely improper and
[3:24] Speaker 3: would have tainted the presentation and could potentially be a
[3:27] Speaker 3: basist to dismiss the indictment.
[3:29] Speaker 2: So Bob the prosecutor here. The interim US Attorney Lindsay Halligan,
[3:34] Speaker 2: was Trump's former personal lawyer had never been a prosecutor before,
[3:38] Speaker 2: and she presented the case to the grand jury by herself.
[3:42] Speaker 2: It appears that she suggested to the grand jury that
[3:45] Speaker 2: the fact that Comy didn't testify in his defense should
[3:50] Speaker 2: be interpreted as a sign of guilt. Even a first
[3:54] Speaker 2: year law student should know that a defendant doesn't have
[3:58] Speaker 2: to testify.
[3:59] Speaker 3: Well, that's exactly, and the magistrate judge described these as
[4:03] Speaker 3: quote fundamental misstatements of law by the prosecutor in front
[4:08] Speaker 3: of the grand jury, and one of the issues that
[4:11] Speaker 3: he identified was this Fifth Amendment right issue. Apparently, during
[4:15] Speaker 3: the course of the grand jury at presentation, a grandeuror
[4:19] Speaker 3: raised questions, as grandeurs often do to the prosecutor, and
[4:23] Speaker 3: the prosecutor has to respond with the proper law in
[4:26] Speaker 3: order to give the grand jurors the framework by which
[4:29] Speaker 3: to consider whether or not to return an indictment. Here,
[4:32] Speaker 3: apparently a grandeuror asked a question, and as you say,
[4:36] Speaker 3: the exact response has been redacted. But according to the
[4:39] Speaker 3: magistrate judge, it suggested that mister Comy may have had
[4:44] Speaker 3: a burden to explain away the government's evidence. In other words,
[4:48] Speaker 3: the inference was that the burden shifted to mister Comy
[4:52] Speaker 3: to have to explain why he did what he did, when,
[4:56] Speaker 3: in fact, under the Fifth Amendment, a defendant has no
[4:59] Speaker 3: obligation whatsoever to testify, and the fact that they choose
[5:03] Speaker 3: not to testify cannot be used against him. And more fundamentally,
[5:08] Speaker 3: in a criminal prosecution, the burden never shifts to the defense.
[5:12] Speaker 3: It's always the prosecution's burden to prove its case beyond
[5:15] Speaker 3: a reasonable doubt. So any suggestion that mister Comy's decision
[5:20] Speaker 3: not to testify not to explain away his conduct could
[5:24] Speaker 3: somehow be used by grand jurors to infer that he
[5:28] Speaker 3: committed a crime would have been improper. The judge also
[5:32] Speaker 3: noted that Miss Halligan may have suggested to the grand
[5:35] Speaker 3: jury that they did not have to rely only on
[5:38] Speaker 3: the record that was presented to them during the grand
[5:41] Speaker 3: jury presentation in order to reach a finding of whether
[5:44] Speaker 3: or not there was probable cause, but that they could
[5:47] Speaker 3: assume and they could be assured of the fact that
[5:50] Speaker 3: the government had even more evidence, perhaps better evidence than
[5:54] Speaker 3: was presented to them during the presentation that could be
[5:57] Speaker 3: used at trial, and therefore that the case was even
[6:00] Speaker 3: stronger than the evidence presented to them during the grand
[6:03] Speaker 3: jury proceeding. If that was done, that too would be
[6:06] Speaker 3: entirely improper. The grand jury has to make a decision
[6:10] Speaker 3: as to whether or not there is probable cause based
[6:12] Speaker 3: solely on the evidence presented to them during the grand
[6:16] Speaker 3: jury proceeding. It's really no different than a trial in
[6:19] Speaker 3: which jurors have to make a determination as to whether
[6:22] Speaker 3: or not the government has met its burden of proof
[6:24] Speaker 3: beyond a reasonable doubt based solely on the evidence that's
[6:27] Speaker 3: presented to them during the trial. They can't rely on
[6:31] Speaker 3: anything outside of the record during the trial proceeding. The
[6:35] Speaker 3: same holds true for a grand jurors, and for a
[6:38] Speaker 3: prosecutor to just suggest that there is other more powerful
[6:42] Speaker 3: evidence that they should consider but has not been presented
[6:45] Speaker 3: to them would be entirely improper.
[6:48] Speaker 2: I mean her comments basically come down to a defendant
[6:51] Speaker 2: has to testify before a grand jury, and trust me,
[6:55] Speaker 2: grand jurors, we have a lot more evidence that will
[6:58] Speaker 2: prove his guilt, but we're not showing it to you now.
[7:01] Speaker 3: Well, I think that's why you saw the opinion written
[7:04] Speaker 3: by the magistrate judge to be as strongly worded at
[7:08] Speaker 3: as detailed as it was. It was a twenty four
[7:11] Speaker 3: page opinion that went through not only the issues that
[7:15] Speaker 3: mister Comey's lawyers had raised in order to try to
[7:17] Speaker 3: gain access to the grand jury transcripts, but also a
[7:21] Speaker 3: litany of other issues that he discovered when he reviewed
[7:26] Speaker 3: in camera those Grand Jury transcripts, and he raised serious
[7:29] Speaker 3: questions in his mind, I believe as to whether or
[7:32] Speaker 3: not there were serious constitutional errors in the presentation, not
[7:36] Speaker 3: only the Fifth Amendment question, not only the question that
[7:39] Speaker 3: there was evidence outside of the Grand jury's purview that
[7:41] Speaker 3: they should consider, even the way the Grand jury returned
[7:45] Speaker 3: the indictment. In this case, the original indictment presented to
[7:48] Speaker 3: the Grand jurors was a three count indictment. When the
[7:51] Speaker 3: Grand jurors went back to deliberate, they chose not to
[7:55] Speaker 3: return a true bill, which means they voted not in
[7:58] Speaker 3: favor of one of the recounts. And now there's a
[8:01] Speaker 3: question as to whether or not an entirely new indictment
[8:05] Speaker 3: with only the two counts that the Grand jurors voted
[8:08] Speaker 3: in favor of, was ever presented to them. If that
[8:11] Speaker 3: did not happen, if the Grand jurors did not deliberate
[8:14] Speaker 3: on the exact indictment that was ultimately presented to the court.
[8:18] Speaker 3: That is another issue that could be very problematic, and.
[8:21] Speaker 2: There's a lot of confusion about whether the grand jury
[8:24] Speaker 2: actually reviewed the final indictment or not, with Halligan first
[8:28] Speaker 2: saying and a hearing that they didn't and then in
[8:32] Speaker 2: court papers saying that they did.
[8:35] Speaker 3: During the hearing, the District Court judge was very clear
[8:38] Speaker 3: in asking the government whether the second indictment, containing only
[8:43] Speaker 3: the two counts that the Grand Jury voted in favor of,
[8:46] Speaker 3: was actually represented to all of the grand jurors, so
[8:49] Speaker 3: that they voted on the actual indictment that was ultimately.
[8:53] Speaker 4: Presented to the court.
[8:54] Speaker 3: At that time, the government said that the full indictment
[8:57] Speaker 3: was not presented, But now they've come back with evidence
[9:01] Speaker 3: in the transcript that suggests that perhaps it was repackaged
[9:04] Speaker 3: and presented to all of the grand jurors. So the
[9:07] Speaker 3: record on this question of whether the grand jurors actually
[9:10] Speaker 3: voted on the indictment that mister Commee is now facing
[9:14] Speaker 3: is muddled at best. At the end of the day,
[9:16] Speaker 3: the question of whether they voted on the actual indictment
[9:21] Speaker 3: or not is probably not the issue that's going to
[9:24] Speaker 3: drive the decision. The judge will more likely look at
[9:28] Speaker 3: some of the constitutional questions that have been raised by
[9:31] Speaker 3: Comey's defense team with regard to some of the comments
[9:34] Speaker 3: that were made during the grand jury process and make
[9:37] Speaker 3: a determination as to whether or not this indictment will
[9:40] Speaker 3: stand based upon those arguments, rather than this procedural question
[9:45] Speaker 3: about whether the proper indictment was presented to the full
[9:49] Speaker 3: grand jury. This is a prosecutor's nightmare. The case should
[9:52] Speaker 3: not be about the prosecutor's conduct right out of the gate.
[9:56] Speaker 3: It should be about the defendant's conduct and about whether
[9:59] Speaker 3: or not the government can prove that the defendant committed
[10:02] Speaker 3: a crime beyond a reasonable doubt. The probe into the
[10:05] Speaker 3: conduct by the government is exactly where you want to
[10:08] Speaker 3: be if you're on the defense side, but it's the
[10:10] Speaker 3: worst place you can possibly be as a prosecutor.
[10:13] Speaker 2: Yet another judge is involved in this case, and that's
[10:18] Speaker 2: the judge considering whether Lindsay Halligan was lawfully appointed.
[10:23] Speaker 3: The federal judge is actually a judge from South Carolina.
[10:27] Speaker 3: Because the question before the court is whether or not
[10:30] Speaker 3: the US Attorney for the Eastern District of Virginia has
[10:33] Speaker 3: been properly appointed, and the decision was made by the
[10:37] Speaker 3: Circuit Court that would be best to have a judge
[10:40] Speaker 3: not in that judicial district making this decision. So the
[10:43] Speaker 3: judge from South Carolina to Judge Curry is looking at
[10:47] Speaker 3: the convoluted process by which Lindsay Halligan was appointed as
[10:52] Speaker 3: the interim US Attorney for the Eastern District of Virginia.
[10:55] Speaker 3: There had been a career prosecutor who was appointed by
[10:59] Speaker 3: President Tromp to serve on an interim basis. That interim
[11:03] Speaker 3: basis lasts one hundred and twenty days. After that time period,
[11:08] Speaker 3: the judges in the district can then extend that appointment,
[11:11] Speaker 3: and that's exactly what happened here with that career prosecutor,
[11:14] Speaker 3: Eric Sebert. The Attorney General then fired mister Siebert and
[11:18] Speaker 3: appointed a new prosecutor, Lindsay Halligan, for a new one
[11:22] Speaker 3: hundred and twenty day period. And the question is whether
[11:26] Speaker 3: or not the Executive Branch can continue with these one
[11:29] Speaker 3: hundred and twenty day interim appointments sort of add infinitum,
[11:34] Speaker 3: or whether they can do it only one time and
[11:37] Speaker 3: after that time it's up to the district court judges
[11:40] Speaker 3: to appoint the US attorney.
[11:42] Speaker 2: There are so many interesting legal questions in this case.
[11:45] Speaker 2: Thanks Bob. That's Robert Mince of Macarter and English coming
[11:49] Speaker 2: up next. A huge win from Meta. I'm June Grosso
[11:52] Speaker 2: when you're listening to Bloomberg. A landmark antitrust decision on
[11:58] Speaker 2: Tuesday was a massive blow to the Federal Trade Commission
[12:02] Speaker 2: and a huge win for Meta, as it prevailed over
[12:05] Speaker 2: an existential challenge to its business that could have forced
[12:09] Speaker 2: the tech giant to spin off Instagram and WhatsApp. A
[12:13] Speaker 2: federal judge ruled that the FTC failed to prove that
[12:17] Speaker 2: those acquisitions allowed Meta to illegally monopolize the social networking market.
[12:23] Speaker 2: The question now is whether the government will even appeal
[12:27] Speaker 2: this significant loss, especially factoring in one dynamic. Meta CEO
[12:32] Speaker 2: Mark Zuckerberg has been courting President Trump.
[12:36] Speaker 4: We're going to work with President Trump to push back
[12:39] Speaker 4: on governments around the world.
[12:40] Speaker 1: They're going after American companies and pushing to censor more.
[12:44] Speaker 2: And it was Zuckerberg who was seated right next to
[12:47] Speaker 2: the President during a high profile dinner of technology executives
[12:52] Speaker 2: in September. My guest is antitrust expert Harry First, a
[12:56] Speaker 2: professor at NYU Law School, Harry, how big a blow
[13:00] Speaker 2: is this to the.
[13:01] Speaker 4: Ftc Well, it's a blow, all right. So this is
[13:06] Speaker 4: the first big loss in these high tech platform cases.
[13:11] Speaker 4: So two of them have now come to a conclusion
[13:13] Speaker 4: of the trial, you know, both against Google, both successful
[13:17] Speaker 4: for the Justice Department remedy another story maybe, So this
[13:21] Speaker 4: is the third. They're five total, and it's the first loss.
[13:26] Speaker 4: It's sort of not a surprising loss because this judge
[13:29] Speaker 4: has been skeptical of this case, clearly from the very beginning.
[13:32] Speaker 4: He had dismissed it originally, so he's been very skeptical,
[13:36] Speaker 4: and he said it in his opinions. So this case
[13:40] Speaker 4: has not been well received by the judiciary, shall we say,
[13:44] Speaker 4: So it's not surprising. The opinion itself is a little surprising,
[13:48] Speaker 4: but the result is not so surprising.
[13:51] Speaker 2: What do you say? The opinion is surprising.
[13:53] Speaker 4: So in two ways. First of all, he's taken a
[13:56] Speaker 4: very novel approach to time in the opinion. So he
[14:02] Speaker 4: says that the proof has to be as of the
[14:05] Speaker 4: time I make my decision. Almost, I mean, this is
[14:08] Speaker 4: an impossible standard. He said, maybe maybe they were monopoly,
[14:13] Speaker 4: Maybe this was a properly defined product, market in twenty
[14:16] Speaker 4: twenty when the suit was filed. But as time has
[14:19] Speaker 4: gone by, it's not that much time by now it's
[14:23] Speaker 4: not And the question is not whether it was then,
[14:25] Speaker 4: but whether it is now. I mean, if you take
[14:28] Speaker 4: that literally, that's a completely moving standard. You could never
[14:32] Speaker 4: try a case because your evidence is always outdated. I mean,
[14:36] Speaker 4: it's always about the past. You can't try a case
[14:39] Speaker 4: about the future. So that's a departure. He's got some
[14:42] Speaker 4: legal reasoning for why he does that, but that's a
[14:45] Speaker 4: serious problem, and I think it's a serious anti trust problem.
[14:48] Speaker 4: So there is that part of it. The second part
[14:50] Speaker 4: is this judge is very confident of his opinion. So
[14:54] Speaker 4: normally a district court judge, he's got seven things to
[14:57] Speaker 4: decide in front of him, and they proceed logically, well,
[15:01] Speaker 4: if if you go for this, you know, then you're done.
[15:04] Speaker 4: But if you go for this and it's okay, you
[15:06] Speaker 4: go to number two, three, four, five. So he has
[15:09] Speaker 4: a long trial, but he only decides the first issue. Now,
[15:12] Speaker 4: normally a judge would say, okay, here's what I decide.
[15:16] Speaker 4: This isn't a market. Market has to include such and such.
[15:18] Speaker 4: They don't really have monopoly power. Okay, but if I'm wrong,
[15:22] Speaker 4: here are the facts that I found about the conduct.
[15:25] Speaker 4: And the conduct wasn't any competitive. So even if you
[15:28] Speaker 4: had monopoly power, this was not exclusionary conduct, less than
[15:31] Speaker 4: any competitive And so you go through all the things
[15:34] Speaker 4: because if a court of appeals disagrees with you, now
[15:38] Speaker 4: what you've got to retry the whole case. So this
[15:42] Speaker 4: is a judge who thinks no one's going to disagree
[15:45] Speaker 4: with me man, And maybe maybe part of it is
[15:49] Speaker 4: because the narrative of the case is at least potentially
[15:53] Speaker 4: stronger than the market definition. So you know all the
[15:57] Speaker 4: emails about how Mark zuckerberg theory was to buy them
[16:01] Speaker 4: or bury them, and you know what he tried to
[16:04] Speaker 4: do with competitors and why he paid so much for
[16:07] Speaker 4: Instagram and for WhatsApp. WhatsApp drops out of this case
[16:12] Speaker 4: like right away, I don't know, third word or something.
[16:14] Speaker 4: He says, at some point, we're done with them, we
[16:16] Speaker 4: don't have to talk about them anymore. So that's pretty unusual,
[16:20] Speaker 4: I think, And it's either hubris or confidence, I don't
[16:24] Speaker 4: know which. But he does not do what I think
[16:27] Speaker 4: most district court judges would do, which is decide the
[16:30] Speaker 4: full case.
[16:31] Speaker 3: I thought the.
[16:32] Speaker 2: Focus would be on the market when Meta bought Instagram
[16:36] Speaker 2: and WhatsApp, and whether it was anti competitive conduct when
[16:41] Speaker 2: it's alleged that Meta couldn't compete with these two apps,
[16:45] Speaker 2: and Zuckerberg said it's better to buy than compete.
[16:49] Speaker 4: What he tried to say was, well, we've got to
[16:52] Speaker 4: do it as of now, in part because of the
[16:55] Speaker 4: FTC's remedy powers. They're asking for an injunction and they
[16:59] Speaker 4: can only stop conduct that is illegal now. So I've
[17:03] Speaker 4: got to decide what's illegal now. Now, he could have
[17:06] Speaker 4: very well said that's a remedy question. We'll decide that
[17:09] Speaker 4: when we get to remedy whether it's a continuing violation
[17:13] Speaker 4: or not. We should look at whether there was a
[17:15] Speaker 4: violation then. So, for example, if this were suit for damages,
[17:19] Speaker 4: you wouldn't say, well, we have to see whether it's
[17:22] Speaker 4: a violation today. You would say, let's see whether there
[17:26] Speaker 4: was a violation at the time that the offense was
[17:29] Speaker 4: committed and what damages were caused. So those two things
[17:34] Speaker 4: are are separate. So it's really quite odd, and you're right.
[17:38] Speaker 4: The argument that the Commission makes is that we look
[17:42] Speaker 4: at what they did and why they did it that
[17:44] Speaker 4: this was an effort to maintain their monopoly. These two
[17:47] Speaker 4: acquisitions for which they wildly overpaid. Why were they paying
[17:51] Speaker 4: nineteen billion dollars for a company that didn't have any
[17:54] Speaker 4: revenue that was What's app And the answer was they
[17:57] Speaker 4: didn't want them to develop into a compete social network platforms.
[18:01] Speaker 4: So you know, now that part also had problems that
[18:04] Speaker 4: had issues. You know, the Federal Trade Commission and its
[18:08] Speaker 4: earlier guys let those acquisitions go through, so there were
[18:12] Speaker 4: issues with it. So in that sense, that's a really
[18:15] Speaker 4: strange aspect.
[18:16] Speaker 2: As far as the definition of the market, the FDC
[18:20] Speaker 2: had argued that menas apps, Facebook and Instagram are primarily
[18:25] Speaker 2: used for personal social networking, while TikTok and YouTube are
[18:31] Speaker 2: video entertainment apps. But the judge rejected that and put
[18:35] Speaker 2: them all in one market.
[18:37] Speaker 4: Yeah, so the first question you have to show that
[18:40] Speaker 4: defendant has monopoly power in a relevant market. So he says, okay,
[18:44] Speaker 4: we have to start with market definition. So that's true,
[18:47] Speaker 4: that's the way it's normally done. And then he says, okay, yes,
[18:51] Speaker 4: let's look at the market. You know, he says, these
[18:53] Speaker 4: platforms have converged, these are all sort of similar and
[18:59] Speaker 4: particularly TikTok, you know, was posing a competitive threat. Says,
[19:04] Speaker 4: people don't want to talk to their friends anymore. They
[19:06] Speaker 4: just want unconnected videos. So, you know, TikTok comes along
[19:11] Speaker 4: and they're posing some threat, and Facebook responds with reels
[19:16] Speaker 4: short videos. And so that has now changed how we
[19:20] Speaker 4: define the market because users switch back and forth between
[19:24] Speaker 4: the two, and we have to include TikTok, and we
[19:26] Speaker 4: have to include YouTube or users switch to those videos later.
[19:30] Speaker 4: It's sort of at the end of the opinion, he says, well,
[19:33] Speaker 4: the argument for YouTube actually is a little thinner. But
[19:36] Speaker 4: even if it's just TikTok, that's enough. We would include
[19:39] Speaker 4: that in. However, we define the market, whatever we want
[19:43] Speaker 4: to call it doesn't really give it a name. And
[19:45] Speaker 4: at that point, if we include TikTok, then Meta does
[19:50] Speaker 4: not have monopoly power. TikTok takes away too much time.
[19:55] Speaker 4: All those kids are frittering where other time on TikTok.
[20:00] Speaker 4: That refrittering we're other time on Facebook. He had various
[20:03] Speaker 4: evidence of, you know, the willingness to switch, and that
[20:07] Speaker 4: people switch between those two. Now, the odd thing in
[20:12] Speaker 4: some ways is if so many people are switching, how
[20:15] Speaker 4: come so many people are still on Facebook. He gives
[20:19] Speaker 4: two hundred and forty million active users in the United
[20:22] Speaker 4: States and ad revenues of one hundred and sixty one
[20:27] Speaker 4: billion dollars. So when you read his description, it sounds
[20:32] Speaker 4: like this is a company that is just in the
[20:34] Speaker 4: throes of death from TikTok, and then he says, this
[20:40] Speaker 4: is an amazingly successful product. Give people a compelling product
[20:44] Speaker 4: for free, then sell ads that can be seen by millions.
[20:48] Speaker 4: I guess he thinks those are good. Two hundred and
[20:51] Speaker 4: forty million active users in the United States, it's a
[20:55] Speaker 4: lot of people. So apparently they haven't been dissuaded by TikTok,
[20:59] Speaker 4: which is also free, and you know they don't give
[21:02] Speaker 4: all their time there. They're still on Facebook. So the
[21:05] Speaker 4: argument from the government is that by incorporating Reels, they've
[21:09] Speaker 4: managed to defend their core business, and their core business
[21:13] Speaker 4: is social network putting people together, and they still get
[21:18] Speaker 4: a lot of people who like that product, even though
[21:21] Speaker 4: some people also use different products.
[21:23] Speaker 2: Harriet sounds like the government should appeal because of the
[21:26] Speaker 2: unusual way the judge defined the market. But this is
[21:31] Speaker 2: not an administration that always follows what's best for the
[21:34] Speaker 2: legal landscape. So might they decide not to appeal because
[21:38] Speaker 2: of political reasons?
[21:41] Speaker 4: Who knows exactly. It's hard to assess the political wins,
[21:45] Speaker 4: and the winds may go the other way because, you know,
[21:47] Speaker 4: a populist wing of the party feels that these platforms
[21:53] Speaker 4: have too much power and need to be cut down.
[21:56] Speaker 4: So who knows exactly. But if you look straight, it's
[21:59] Speaker 4: a legal issue. Is usually appeals from adverse decisions of
[22:04] Speaker 4: trial courts are hard to win on appeal because they're
[22:09] Speaker 4: mostly fact based, so you have to look for legal issues,
[22:12] Speaker 4: and there's a you know, an important legal issue of
[22:16] Speaker 4: you know, whether he applied the correct standard for defining
[22:19] Speaker 4: the market and for assessing when a violation occurred, And
[22:22] Speaker 4: that one's sort of a very pointed legal issue. How
[22:26] Speaker 4: it will fare in the court of appeals if they
[22:28] Speaker 4: do take it, I don't know.
[22:29] Speaker 2: And does this decision have any implications for the other
[22:33] Speaker 2: antitrust cases against tech platforms.
[22:37] Speaker 4: Yeah, that's a good question. Perhaps I'm thinking of Amazon
[22:41] Speaker 4: for example. So these are platform cases, and platform strategy
[22:46] Speaker 4: is you have a core product and what you want
[22:49] Speaker 4: to do is to keep people on the platform and
[22:52] Speaker 4: engaged because of the strength of the core product, and
[22:55] Speaker 4: you defend the core product by acquiring things around the
[22:59] Speaker 4: periphery that might challenge it, or by doing things. You know,
[23:02] Speaker 4: these companies are always subject to some competitive forces, even
[23:06] Speaker 4: if they're monopolis. So certainly Facebook was TikTok did pose
[23:12] Speaker 4: a competitive threat, and Amazon similarly has competitive threats to
[23:17] Speaker 4: which they respond. But the basic strategy is pretty similar,
[23:22] Speaker 4: and the market definition in some ways is similar because
[23:26] Speaker 4: they offer a bunch of different products in the same place,
[23:30] Speaker 4: much as supermarkets do, like whole foods for example. So
[23:36] Speaker 4: you have a you know, sort of core product and
[23:38] Speaker 4: then other things that they offer that other firms may
[23:41] Speaker 4: compete on. I mean, look at your smartphone, so thirty
[23:45] Speaker 4: five millimeters cameras compete on cameras, But you know, are
[23:47] Speaker 4: they in the same market. No, so you could say
[23:51] Speaker 4: this is quite similar. You know, yes, TikTok competes. I'm
[23:56] Speaker 4: surprised Twitter's not mentioned. Twitter competes, you know, to some
[23:59] Speaker 4: ext but these are all to some extent, and it's
[24:04] Speaker 4: still a meta defending its core product in which it
[24:08] Speaker 4: has a lot of power, as all advertisers know.
[24:12] Speaker 2: And there are more trials ahead as the government continues
[24:16] Speaker 2: to try to rein in big tech with antitrust suits.
[24:20] Speaker 2: Thanks so much, Harry. That's Professor Harry First of NYU
[24:24] Speaker 2: Law School, coming up next on the Bloomberg Law Show.
[24:28] Speaker 2: A loss for Texas in the nationwide redistricting battle that
[24:32] Speaker 2: it started. I'm June Grosso and you're listening to Bloomberg.
[24:36] Speaker 2: You may remember back in July when President Donald Trump
[24:40] Speaker 2: pushed Texas Republicans to redraw congressional maps to give the
[24:45] Speaker 2: party five more seats to maintain its hold on the
[24:48] Speaker 2: House in the midterm elections.
[24:51] Speaker 1: Five. I think we get five, and there could be
[24:54] Speaker 1: some other states we're going to get another three or
[24:56] Speaker 1: four or five.
[24:57] Speaker 3: In addition, Texas would be the biggest one.
[25:00] Speaker 2: And Texas did kick off the nationwide mid decade redistricting
[25:06] Speaker 2: battle that's playing out in other states and in courtrooms
[25:10] Speaker 2: across the country. But could Trump's plan backfire? This week,
[25:16] Speaker 2: a panel of federal judges blocked the new map in
[25:19] Speaker 2: Texas and said the old map will have to be
[25:22] Speaker 2: used for the midterms. But on Friday, the state made
[25:26] Speaker 2: an emergency appeal to the Supreme Court asking it to
[25:30] Speaker 2: reinstate the newly drawn congressional map, and in just a
[25:34] Speaker 2: little over an hour, Justice Samuel Alito, who handles emergency
[25:39] Speaker 2: appeals from Texas, did just that. He temporarily blocked the
[25:44] Speaker 2: three judge panels ruling and restored the map. Alito asked
[25:49] Speaker 2: the opponents of the map to file a response by Monday,
[25:53] Speaker 2: signaling quick action by the court joining me. His elections
[25:56] Speaker 2: law expert Richard Brefalt, a professor at Columbia Law School,
[26:01] Speaker 2: rich this was a two to one decision with a
[26:03] Speaker 2: Trump appointee and an Obama appointee in the majority and
[26:08] Speaker 2: a Reagan appointee dissenting. Will you explain why the judges
[26:12] Speaker 2: decided that Texas couldn't use its new congressional plan.
[26:17] Speaker 1: In a nutshell, the court concluded that this was a
[26:20] Speaker 1: racial jerry mander and not a partisan jerrymander. And as
[26:24] Speaker 1: you know, the Supreme Court has said parts in jerry
[26:26] Speaker 1: manders are not unconstitutional, there's no basis for challenging them
[26:29] Speaker 1: in federal court. But racial jerry manders can be unconstitutional
[26:33] Speaker 1: and can be challenged in federal court. So the heart
[26:35] Speaker 1: of the Court's decision was that this was a racial
[26:37] Speaker 1: jerry mander. And what did they base that on? The
[26:40] Speaker 1: Court said what triggered this, Although we think of this
[26:43] Speaker 1: as Trump demanding more Republican seats from the Texas congressional delegation,
[26:48] Speaker 1: in the court's view, the Texas governor was initially reluctant
[26:52] Speaker 1: to call the special Section to create the map until
[26:55] Speaker 1: he got a letter from the Department of Justice in
[26:58] Speaker 1: Washington that said several of the Texas districts were unconstantly
[27:04] Speaker 1: created on racial grounds. In particular, the Department of Justice
[27:07] Speaker 1: focused on so called coalition districts, which are districts which
[27:12] Speaker 1: are majority minority, but not one particular minority group. And
[27:17] Speaker 1: for a period of time in the Fifth Circuit, courts
[27:20] Speaker 1: there had said that the Voting Rights Act could be
[27:22] Speaker 1: interpreted to require the so called coalition district district which,
[27:26] Speaker 1: let's say is forty percent Black and thirty percent Hispanic.
[27:30] Speaker 1: Neither one is a majority, but together they add up
[27:32] Speaker 1: to seventy percent. And so the Apartment of Justice says, well,
[27:35] Speaker 1: we see four districts in your current in your twenty
[27:38] Speaker 1: twenty one map that look like their coalition districts to us,
[27:41] Speaker 1: and based on a recent decision in the Fifth Circuit,
[27:44] Speaker 1: we think that makes them unconstitutional. So you got to
[27:47] Speaker 1: fix it, you've got to redo those districts. So what
[27:50] Speaker 1: the three judge panel in this case concluded is that
[27:52] Speaker 1: that was what was driving the redistricting. They looked at
[27:55] Speaker 1: the statements of the governor and of the leading members
[27:58] Speaker 1: of the state legislature, and they also looked at the
[28:00] Speaker 1: resulting map, and they pointed out that most of the
[28:03] Speaker 1: changes in the redrawn districts went from being so called
[28:08] Speaker 1: coalition districts, the districts in which one race or another
[28:12] Speaker 1: had a majority, and often an extremely narrow majority. They
[28:16] Speaker 1: said there were three districts they were either black or Hispanic,
[28:19] Speaker 1: where the majority group had like fifteen point two percent.
[28:22] Speaker 1: So they said the combination of the Department of Justice letter,
[28:26] Speaker 1: the governor's statement calling the legislature decision, in statements by
[28:31] Speaker 1: many of the leading members of legislature, and then the
[28:33] Speaker 1: districts that were created. In their minds, this meant that
[28:37] Speaker 1: race predominated the desire to create racial majority districts is
[28:41] Speaker 1: what was driving this. It's tub the court sent and
[28:43] Speaker 1: also clearly had partisan consequences in the nave and some
[28:46] Speaker 1: partisan motivation as well, But they said the dominant motive
[28:50] Speaker 1: that they found was race, and thatfore this made it
[28:53] Speaker 1: an unconstitutional racial jerry.
[28:54] Speaker 2: Matter, even though we know that President Trump really pushed
[28:58] Speaker 2: Texas Republics as he's continuing to push Republicans in other
[29:03] Speaker 2: states like Indiana and Kansas who've been resisting redistricting.
[29:09] Speaker 1: I think what you could say is that, to Barbary Shakespeare,
[29:12] Speaker 1: the Apartment of Justice was hoist by its own petard.
[29:15] Speaker 1: I think when this all began, it's now like four
[29:17] Speaker 1: months later, it's amazing how much has gone in four
[29:19] Speaker 1: or five months. When this all began, maybe people thought
[29:21] Speaker 1: it was too blatant to say this was all for
[29:24] Speaker 1: partisan reasons. I mean, we've now been totally partisan since
[29:26] Speaker 1: June of this year in the redistricting. But maybe they
[29:29] Speaker 1: thought it was just too blatant to say we're doing
[29:31] Speaker 1: different partisan purposes. So the Department of Justice trumped up
[29:34] Speaker 1: this racial argument. There was no argument actually that those
[29:37] Speaker 1: coalition districts were unconstitutional. You could argue that there's no
[29:41] Speaker 1: mandate that a state create them, and that's certainly true now,
[29:45] Speaker 1: but there was no evidence that they were unconstitutionally drawn. Nonetheless,
[29:49] Speaker 1: part of Justice having, i think, provided this kind of
[29:52] Speaker 1: pretext for the state to go ahead and do the
[29:55] Speaker 1: partisan gerrymander. But given that that was the stated reason
[29:59] Speaker 1: the court was able to we think it's a racial
[30:01] Speaker 1: gerry manner. They also made the point that the Democratic
[30:04] Speaker 1: districts which were undone mostly fell into this category of
[30:09] Speaker 1: coalition districts, and they pointed out there was one white
[30:11] Speaker 1: majority Democratic district which was barely touched. So they do
[30:15] Speaker 1: have some evidence suggesting that most of the focus of
[30:19] Speaker 1: the legislature was on coalition districts and making them majority
[30:24] Speaker 1: one race or the other. But I think what you've
[30:27] Speaker 1: got here is this irony that at least in June
[30:30] Speaker 1: of this year, the governor and the Department of Justice
[30:33] Speaker 1: thought it's too blatant to do it for purely partisan reasons,
[30:36] Speaker 1: so we're going to give them an anti race discrimination motivation,
[30:40] Speaker 1: and that, as I think, turned around to sort of
[30:42] Speaker 1: bite them in the rear.
[30:43] Speaker 2: At least for now, Texas is appealing to the Supreme Court.
[30:47] Speaker 2: What do you think will be the main question?
[30:50] Speaker 1: Well, I think the real question is will the Supreme
[30:52] Speaker 1: Court say that the lower court has made this decision
[30:56] Speaker 1: too close to the election. There's this doctrine called the
[30:59] Speaker 1: Percell principle, based on a Supreme Court decision now about
[31:02] Speaker 1: twenty five years old, in which the Court says that
[31:05] Speaker 1: federal courts should not undo state election laws if they're
[31:10] Speaker 1: too close to an election. The Court has never said
[31:13] Speaker 1: what is too close to an election, but there have
[31:16] Speaker 1: been some orders from the Supreme Court in recent years
[31:19] Speaker 1: that treated decisions that were within six months of an
[31:23] Speaker 1: election as too close to an election. And the Texas
[31:26] Speaker 1: primary is in March, so looking at some recent Supreme
[31:30] Speaker 1: Court decisions, there is a plausible argument that this Court's
[31:34] Speaker 1: decision is too close to the election and therefore should
[31:37] Speaker 1: be stayed.
[31:38] Speaker 4: Now.
[31:38] Speaker 1: The Court addresses that for about twenty pages, and they
[31:41] Speaker 1: make the point that the Texas plan was not signed
[31:44] Speaker 1: into law until the end of August, and if you
[31:47] Speaker 1: took the idea that six months is too late, it
[31:50] Speaker 1: was almost too late. As of the moment the Texas
[31:53] Speaker 1: redistricting was signed into law, it would have been impossible
[31:56] Speaker 1: to have a challenge, have the parties do the research
[32:00] Speaker 1: or have a hearing, and have a decision in time
[32:03] Speaker 1: to take something like six months. So the Court makes
[32:07] Speaker 1: kind of a strong pitch for saying that the percel
[32:09] Speaker 1: principle has to be handled flexibly. We've got to look
[32:12] Speaker 1: at how late the Texas legislature did this, and we
[32:16] Speaker 1: do have to say that it is possible to come
[32:17] Speaker 1: into compliance. They make two more points. One is that
[32:21] Speaker 1: the old map is still in existence, because Texas is
[32:24] Speaker 1: about to hold an election on that old map in January,
[32:28] Speaker 1: because there is a vacancy a member of the Texas
[32:30] Speaker 1: Commercial Delegation died early this year. There was just a
[32:34] Speaker 1: primary thing to fill that the general election to actually
[32:37] Speaker 1: fill that seat won't be until January. That's on the
[32:41] Speaker 1: old map, the pre Gerrymander map. And so the court says, well,
[32:44] Speaker 1: the old maps are still the law, so under our
[32:47] Speaker 1: preliminary injunction, we're just going to continue to live by
[32:50] Speaker 1: the old map. So the old map is still on
[32:51] Speaker 1: the books. And so they're saying that in some sense,
[32:54] Speaker 1: the real disruption was the state legislature's acting so late,
[32:57] Speaker 1: and so therefore we should be able to do this.
[32:59] Speaker 1: And yes, it's still time for everyone to come into
[33:02] Speaker 1: compliance to file under the old maps. I think the
[33:05] Speaker 1: first question maybe the stronger argument. What the Spreme Court
[33:08] Speaker 1: will do is unclear, but there is a plausible percel
[33:13] Speaker 1: argument that it's too late. But as I said, the
[33:16] Speaker 1: court is very strong in saying, well, if that's the case,
[33:20] Speaker 1: you can never bring a challenge to a gerrymander. That indeed,
[33:24] Speaker 1: it's an incentive to do the gerrymanders closer and closer
[33:27] Speaker 1: to the election to make it impossible to bring challenges.
[33:30] Speaker 2: If the Supreme Court says, forget the percell principle here,
[33:34] Speaker 2: how do you think they would rule on Texas's appeal.
[33:37] Speaker 2: You know that this was a part is in not
[33:39] Speaker 2: a racial gerrymander. Do you have any idea on that?
[33:41] Speaker 1: It's really hard to say. I mean, I think the
[33:43] Speaker 1: court acknowledges that there's evidence on the other side, but
[33:46] Speaker 1: they have in particularly the testimony of the map drawer,
[33:50] Speaker 1: the Republican specialist whoshire to draw the map. You said,
[33:53] Speaker 1: you know, no, I never looked at race data. The
[33:54] Speaker 1: Court said, we essentially don't believe you, partly because there
[33:57] Speaker 1: are discrepancies between your testimony the testimony of the state
[34:01] Speaker 1: legislator who hired you, but also because we just don't
[34:03] Speaker 1: believe that you could produce three districts that are fifty
[34:07] Speaker 1: point two fifty point three to fifty point four percent majority.
[34:10] Speaker 1: I think two were Hispanic, one was black. I'm not
[34:13] Speaker 1: sure about that and that's so precise, and you could
[34:16] Speaker 1: do it three times, and that you were not paying
[34:18] Speaker 1: attention to race. But I mean there is counter evidence.
[34:22] Speaker 1: You know, in theory, the Supreme Court's not supposed to
[34:24] Speaker 1: judge the evidence that's really for the lower court. They're
[34:27] Speaker 1: supposed to defer lower courts on evidentiary findings. But the
[34:30] Speaker 1: current Supreme Court has not always followed that rule, so
[34:33] Speaker 1: it's hard to tell what they're going to do.
[34:36] Speaker 2: As you know, California has approved a redistricting plan that
[34:40] Speaker 2: would offset the Texas Map, which is now in serious jeopardy.
[34:45] Speaker 2: Tell us about the legal challenge to California's redistricting from
[34:50] Speaker 2: California Republicans and also now the Trump administration.
[34:54] Speaker 1: I mean, they're basically making the same argument that prevailed here,
[34:58] Speaker 1: that this is a racial gerrymander. Mean, they can't bring
[35:01] Speaker 1: a parties in Jerrymenner argument because, as I said, the
[35:03] Speaker 1: Supreme Court in La Rouco case in I think twenty
[35:06] Speaker 1: nineteen said those are simply not just diiciable. He can't challenge.
[35:09] Speaker 1: So I think they're bringing a claim that the states
[35:11] Speaker 1: the legislature's motivation was race. Assumely they've targeted specific districts.
[35:16] Speaker 1: But I think the essence of it is that it's
[35:17] Speaker 1: a racial jerry mender. The basic idea is similar to
[35:21] Speaker 1: the argument that the three judge court in Texas recognized
[35:24] Speaker 1: and striking down the Texas jerrymander, only.
[35:27] Speaker 2: The jerry mander is sort of going in the opposite direction.
[35:31] Speaker 2: The Justice Department argued that California's map illegally bolsters the
[35:36] Speaker 2: voting power of Hispanics in the state.
[35:38] Speaker 1: Which is interesting because, of course, in Texas, one of
[35:42] Speaker 1: the arguments Governor Abbott made is that this is going
[35:44] Speaker 1: to actually strengthen the voting power of Hispanics, although he
[35:47] Speaker 1: combined that basically Hispanics are becoming more Republican and this
[35:50] Speaker 1: is going to allow them to be able to articulate
[35:53] Speaker 1: that in districts to both their preference and districts. He
[35:55] Speaker 1: had the sentence which kind of combined the two in
[35:57] Speaker 1: one sentence. So, I mean, much would turn on whatever
[36:00] Speaker 1: evidence they have for that. There's also an argument, there's
[36:03] Speaker 1: been a lot of debate about this amongst the law
[36:05] Speaker 1: professors as to what's the significance of the fact that
[36:08] Speaker 1: the California redistricting was approved by the voters. But the
[36:13] Speaker 1: challengers have to prove that the voters were racially motivated
[36:17] Speaker 1: as opposed to the legislature, and I think for grabs,
[36:19] Speaker 1: because the public campaigning was largely on party grounds. So
[36:23] Speaker 1: whether or not even if there was a racial motivation
[36:26] Speaker 1: within the legislature, whether that was some kind of washed
[36:29] Speaker 1: away by the voters, or whether if it really is
[36:32] Speaker 1: racially tainted, whether the legislature's motivation was racial pro hispanic,
[36:37] Speaker 1: whether it doesn't matter that the voters voted for it
[36:39] Speaker 1: because they thought that I'm putting on partisan grounds. That
[36:41] Speaker 1: will be an interesting fight.
[36:43] Speaker 2: You law professors have some interesting conversations.
[36:46] Speaker 1: Yeah, obviously it's been all online, but it's been an
[36:48] Speaker 1: interesting back and forth. Whereas the government on the plaintiffs
[36:51] Speaker 1: first have to show that the plan was racially motivated
[36:53] Speaker 1: and not partisanly motivated even within the legislature, and then
[36:57] Speaker 1: they conclude that it was partisan even the legislature, then
[36:59] Speaker 1: the effective of the voter as becomes irrelevant.
[37:02] Speaker 2: Thanks so much, rich and for sharing those professorial insights.
[37:06] Speaker 2: That's Columbia Law School professor Richard Breflt. And that's it
[37:10] Speaker 2: for this edition of the Bloomberg Law Show. Remember you
[37:12] Speaker 2: can always get the latest legal news on our Bloomberg
[37:15] Speaker 2: Law Podcast. You can find them on Apple Podcasts, Spotify,
[37:19] Speaker 2: and at www dot bloomberg dot com, slash podcast slash Law,
[37:24] Speaker 2: and remember to tune into The Bloomberg Law Show every
[37:27] Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso
[37:31] Speaker 2: and you're listening to Bloomberg

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