This is Bloomberg Law with June Grossel from Bloomberg Radio.
Former FBI Director James Comy pleaded not guilty today to charge that he lied to lawmakers and obstructed a congressional proceeding. It sets up a trial for early next year that will delve into the federal prosecution of one of President Donald Trump's biggest perceived enemies. Comy's attorney, Patrick Fitzgerald, a former US Attorney for the Northern District of Illinois, entered the plea of not guilty and said it was the honor of my life to represent mister Komy in this matter.
It wasn't surprising that Fitzgerald said Komy would be asking for the case to be dismissed, but there were some other surprises during the less than half hour hearing. Joining me is Bloomberg Legal reporter Chris Strom, who was in the courtroom. Chris So, the defense attorney sort of outlined and the grounds they would use to try to dismiss the case.
His attorney is Patrick Fitzgerald, who is a very well known, very respected lawyer, former US attorney for Chicago, and he made three main points that they are going to challenge that the case against Komi represents a vindictive prosecution and a selective prosecution, and that the appointment of the interim US attorney who brought the charge was unlawful. And so they are going to move through those phases of challenges and if they all fail, then they will go to a speedy trial.
Why does he say that the appointment was unlawful. I mean it was one of Trump's former personal attorneys, an insurance lawyer with no prosecutoral experience. But I mean, what's the objection.
The objection is that she was not a Justice Department official before she was appointed. There are certain rules that have to be followed when you are appointing a temporary position within the Justice Department, and US attorneys need to be Senate confirmed or they need to be given the appointment by federal judges. It's allowed to have a temporary appointment, but the temporary appointment must be somebody who comes from within the Justice Department, which Lindsay Halligan does not.
So that's interesting because if the judge threw out the indictment because she was not a legal appointee, I mean the statute of limitations has run, they wouldn't be able to bring the charges against him again.
Correct, the case would be completely dropped and there'd be no ability to bring it back.
You know.
The only caveat is these are hard motions to win. Generally, judges are hesitant to throw out cases that grand jury's have returned, so so the defense does face some obstacles to being able to do it. But the rules of how US attorneys are appointed in what they can actually do raise legitimate questions for the defense to challenge the appointment of Halligan.
So Fitzgerald said that the defense hasn't been giving any additional details about the charges. What kind of information is he looking for?
Specifically, the defense wants to know who Komy authorized to provide information, and what information that person provided and who it related to. In the indictment, it says that Komy authorized person three to provide information about person one. It's pretty clear from everything we know that person one is actually Hillary Clinton, but what's not clear is who is
person three that actually provided the information. And Komi's defense is saying that to this date, they still have not been told specifically the details of the indictment, which they need to know in order to mount their defense.
It was a very skimpy indictment. Just explain what he's accused of doing. It.
It's not the leak, yeah, correct. Comy's accused of lying to Congress, making a false statement during a testimony that he gave to the Senate Judiciary Committee in September of twenty twenty. So it was five years ago, and that's why the Justice Department was up against the statute of
limitations in order to bring this charge. And so what the Justice Department said is that during Kmy's testimony, Comy said that he stood by previous testimony that he never authorized anybody to leak information about either the Hillary Clinton investigation or the Trump investigation. And what the Justice Department is saying is that Komy made a false statement by saying he stood behind his previous testimony. So Komy is
not being charged with actually authorizing the leak. He's being charged with lying about authorizing the leak.
The prosecutor's response was there's a lot of classified information here. Were they saying that they couldn't turn things over fast.
So the new wrinkle from today was that the prosecution said that there's a large amount of discovery material that
they have to sort through, which includes classified information. Up until now, we had never heard them say that there is a trove of classified information, and that could complicate the ability of the case to move forward and also Komy to mount his defense because the government needs to work out a process by which classified information can be shared with Komy's defense team or provided to the judge
under seal. And I think everybody was surprised when the prosecution said that they have classified information that they need to sort through, and the judge quickly said he does not intend to have a long delay, if any delay as a result of needing to deal with classified information.
The judges basically ordered the prosecution team to get their act together, sort through all of the discovery, determine how they're going to handle the classified information, and provide the necessary material to Komy for his defense.
The judge said, this doesn't appear to be an overly complicated case. I mean, they can certainly give Komy the name of the people in the indictment. I mean that seems bare minimum.
Yeah, it was surprising that the government had not already provided Komy and his lawyers with the just the basic information of who they allege Komy authorized to leak information the lawyer for Komy said that they had had no discussion with the government until yesterday, and even then that was a very brief discussion, and so Comy's defense is saying that they need to see the details of what
the charges actually are. And it really speaks to how unusual this case, you know, has been from the start, and how there might be a problem with the ability of the new US attorney, who has never prosecuted as a case before, to manage this prosecution.
The two prosecutors who have signed on to handle the case are both based in North Carolina, as opposed to the Eastern District of Virginia where the case is taking place.
YEP, it's our understanding that most of the career officials in the US Attorney's Office for the Eastern District of Virginia looked at the case and determined that there wasn't sufficient evidence to bring a case or go to the grand jury and get an indictment, and so none of them are willing to sign on to this case. And Trump installed a brand new US attorney who went and got the indictment by herself, with no other prosecutors from
the office signed onto the indictment. And then had to bring in assistant US attorneys from another office in order to appear in court today.
I don't know if I've ever heard of anything like that happening before.
I haven't.
What do we know about the judge because President Trump has already called him a crooked Joe Biden appointed judge.
So the judge's reputation, he's very respected and considered to be studious and knowledgeable of the law. He previously served in the Justice Department. He came onto the bench with experience, and he's been handling cases in the Eastern District of Virginia for several years now, and these are can be some of the most complicated cases that the Justice Department
deals with. In this case, though, as the judge said, it appears to be just a relatively straightforward case and should only take a couple of days with the trial, and so there's nothing that indicates that the judge should have any problem with being able to manage a relatively simple, straightforward case.
So the trial is scheduled for January fifth. Are there any other hearings scheduled?
Yes, there will be two hearings with oral arguments, one in the November and one in December, and then along the way there'll be status reports, and there's supposed to
be an agreement on how to handle discovery. The judge actually said to get an agreement by this Friday between the government and the defense and if they can agree on how to handle discovery by this Friday, then both sides are supposed to present their own proposals on Monday, at which point the judge will then work out a compromise between the two.
Could the prosecution be using these classified materials as a sort of stalling tactic.
It can be used by the government as a stalling technique. The government, when they're dealing with classified information, they have to go through a process by which they come to a decision on whether declassifying information or giving the Defense Council a clearance to be able to review the classified information.
And so what can happen in very complicated cases is that the intelligence agencies that basically own the classified information might resist allowing it to be shared with the Defense Council for some reason, maybe a national security reason, or because it relates to some kind of an ongoing investigation or an ongoing operation. And so we need to see how the government is going to proceed with the classified
information in Comy's case. If they come back and say that there's resistance to declassifying the information or sharing the information, then that could throw a wrench into the schedule for the upcoming hearings on the motions and the actual trial. But again the judges said, he does not look at this as being a complicated case at all, and he basically ordered the prosecution to figure out everything they need to do very quickly, and that he's not going to allow them to play games.
Well, see how fast he can move it along. Thanks so much, Chris. That's Bloomberg Legal reporter Chris Strom coming up. Colorado's ban on conversion therapy is on the line at the Supreme Court. This is Bloomberg. Colorado is one of twenty seven states that bar licensed counselors from using talk therapy to try to change a child sexual orientation or gender identity. Colorado's Solicitor General, Shannon Stevenson defended the law at the Supreme Court, arguing that the Constitution allows states
to protect patients from harmful treatments. Even if a regulation incidentally affects speech.
State cannot lose its power to regulate the very professionals that it licenses just because they are using words. A healthcare provider cannot be free to violate the standard of care just because they are using words. And a state cannot be required to let its vulnerable young people waste their time and money on an ineffective, harmful treatment just because that treatment is delivered through words.
A Christian counselor is challenging the twenty nineteen law as violating her free speech rights, saying it wrongly bars her from offering voluntary faith based therapy for kids, and the Court's conservative justices appear to agree with her during oral arguments questioning the constitutionality of the law. Here are Chief Justice John Roberts and Justice Samuel Alito.
In other words, just because they're engaged in conduct, it doesn't mean that their words aren't protected.
One viewpoint is the viewpoint that a miner should be able to obtain talk therapy to overcome same sex attraction if that's what he or she wants, and the other is the viewpoint that the miner should not be able to obtain taught therapy to overcome same sex attraction, even if that is what he or she wants. Looks like blatant viewpoint discrimination.
Liberal justice is Sonya so To Mayor and Katanji Brown Jackson suggested they would back the law.
So Too.
Mayor was the only justice who addressed the harms that all major medical associations warn about conversion therapy.
There are studies that say that this advice does harm the people emotionally and physically.
And Jackson question the First Amendment implications.
Whether a therapist who is acting in their professional capacity to help someone achieve their goals, is really expressing the kind of message or expressing a message for First Amendment purposes. I mean, I understand if ms Child's here were writing an article about conversion therapy or writing or giving a speech about it.
My guest is an expert on religion in the law. Caroline Malacorbin, a professor at the University of Miami Law School. Will you explain conversion therapy and Colorado's law, as about half.
The states in the country have done Colorado banns something that has been called gay conversion therapy that now probably also includes trans conversion therapy, so it's just known as conversion therapy, and it's the idea of trying to convince someone who is gay that they're not actually gay, or trying to convince someone who is trans that they're not actually trans. And this approach to gay and trans people has been proven to be very delictorious for their mental
well being, and so states have forbidden it. They have made it illegal for licensed medical professionals to provide this as part of their practice of medicine. So to be very clear, it doesn't ban clergy from talking to people about sexual orientation or gender identity, and it doesn't even ban the therapists from talking about it in their own
free time. But if they are in the process of providing health care services that they have been licensed to provide, they're not allowed to try and convince gay people that they're not gay, or trans people that they're not trans. That's the law, and.
What's the fundamental issue in the case.
So you have this law. It says, if you're licensed by the state, the state does not allow you to do things that are contrary to the standard of care, and so you cannot provide conversion therapy. And we have this white Christian woman who argues that the ban forbids her from providing the type of therapy that she wants to practice. She gets help from Alliance to Friending Freedom and they argue that this ban on conversion therapy violates
her free speech rights. And so the question before the court is does this ban on this medical therapy violate the licensed practitioners' free speech rights? And the legal question that makes all the difference is whether providing conversion therapy is speech or whether it's conduct. Because if it's speech, then it implicates the free speech clause. In fact, it
becomes presumptively unconstitutional. If, on the other hand, it's considered conduct, then it doesn't trigger the free speech clause and the government is likely to be allowed to regulate it. So the million dollar constitutional question is how should this practice of conversion therapy get characterize? Is it speech or is it conduct? Now, I just want to point out that the speech in the colloquial sense doesn't always match speech
in the constitutional sense. So let me give you a couple of examples when speech is not actually speech, which seems counterintuitive. And yet, if for example, you told national security secrets to a foreign enemy, that's speech, but that it wouldn't be treated as speech, it would be treated as the conduct of treason. It's not protected by the free speech clause, or for example, a sign on a restaurant that said, we do not hire fill in the blank, we do not hire black people, or Latino people or
Asian people. Right, that's words, But that would be considered speech. It would be considered the act of discrimination. And so while it may seem really obvious on its face, well, this is words and therefore it's speech, it's not quite as clear cut as the Supreme Court is going to probably conclude.
It seems like there's almost universal agreement among the legal experts who listen to the oral arguments that Colorado is going to lose and the Christian counselor is going to win.
I mean, clearly, whenever you have a white conservative Christian arguing before the Supreme Court, they're going to win, especially if the only thing is at stake, and I say only from the Court's perspective is LGBTQ rights. They just don't care, right, So, I think it was a foregone conclusion, apart from any of the lead principles, that the white
Christian woman was going to win. You know, I never used to predict the outcome of Supreme Court cases, but it seems the pattern is so clear these days that I think one could say with a certain degree of confidence that she's going to win. And they're basically going to say this is speech, and therefore it is presumptively unconstitutional, and only if the government has a super compelling justification for its law, and the law was the only way
to accomplish its goals, it's not going to win. In other words, it's going to have to pass what is known as strict scrutiny, and that is very hard to do in the speech context.
It seemed like most of the discussion was about what standard should be applied here.
Well, that's because if it is considered speech, then the standard is going to be strict scrutiny. And if it is not speech, then it's only going to be rational basis scrutiny. So what level of scrutiny a court must give to this law, how hard it looks at it, questions it, the level of evidence the government needs to provide will depend on whether it is speech or conduct, because again, if it is speech, then it implicates the free speech clause.
Is this a novel issue coming to the court? Have they decided any similar cases?
The Supreme Court is not deciding this against a blank slate. They have already considered the question of medical treatment and speech conduct, but in the abortion context. So I want to highlight that many states who are hostile to abortion, one of the things that they require their abortion providers to do is to give women certain information about abortion. So, for example, you have to let women know that adoption is an option, or that fathers have to pay child support.
Other states have held that women have to be told all the harms that may result from abortion, some of which are not even medically accurate. But the point I want to make here is that doctors challenge this regulation on speech grounds and argued, the government is forcing us to say things that are contrary to what we believe
is appropriate and correct. And you might think, well, these are words, and they're being forced to articulate a particular viewpoint on things, for example, don't have an abortion, you know, adopt your child out instead. That it too should be considered a regulation of speech that limits that sort of compels a viewpoint. It's a viewpoint based restriction and therefore should trigger strict scrutiny and be presumptively unconstitutional. But that
is not what the Supreme Court did. What the Supreme Court said is that these laws that compel doctors to speak against their will and say things that they don't want to say, the Supreme Court held that is not a regulation of speech, that is actually a regulation of
the medical profession that only incidentally affects speech. So they're deciding this case against a backdrop of the Supreme Court already having held in a different context that speech that is connected to the provision of medical treatment is not necessarily going to be treated like speech. And so you know, oh, it just so happens, right that if you're challenging something that's anti abortion, it's not speech, but if you're challenging something that's pro LGBT, it is speech.
If the Justices rule for the Christian counselor here, how will they distinguish that case.
The way they will get around it is they will say, well, in the abortion case, it wasn't just speech. The doctors also did something, but in this case it is just speech,
and that justifies treating the two differently. And they're going to use that same distinction, no doubt with their differential treatment of gender affirming care because you might think, well, if providing medical services now is going to implicate the free speech clause, then perhaps other kinds of medical care should also have free speech protection, like gender affirming care when you talk to your doctor and they also provide
some psychological counseling. If it's just psychological counseling, then perhaps they will get the same protection as a therapist who just provides talk therapy. But if it's gender firming care coupled with some actual medicine, then they'll say no, no, no, no. That's the regulation of medicine that doesn't get any heightened reviewer, a very limited heightened review as opposed to regulation of speech.
Justice Katanji Brown Jackson questioned why the Colorado law should be struck down while the court upheld a different measure from Tennessee that bands transition related treatments for minors. But she didn't push very hard on and she was the only one who really mentioned it.
Yes, exactly, because we have the scrimmatic case that was decided recently where states are banning gender firming care and the court upheld that they were not challenged on free speech grounds. They were challenged on different grounds. But she is right to point out the very different results and how the results all seem to favor again conservative and Christian views at the expense of the LGBTQ community.
Coming up, might the justices send the case back to the lower court. I'm June Grosso. When you're listening to Bloomberg, A majority of Supreme Court justices seem likely to side with a Christian counselor challenging bands on LGBTQ plus conversion therapy for kids as a violation of her First Amendment rights. I've been talking to Professor Caroline Malcorbin of the University of Miami Law School. So let's just go back to
the basics for a second. Will you explain what Colorado's basic argument is and what the Christian counselor's argument is.
Again, they took different sides on this major legal question of whether the conversion therapy should be conceptualized as speech or as conduct. So the therapist argued that this is speech, and any time the government regulates the content of speech, that regulation is presumptively unconstitutional and must pass what is
known as strict scrutiny in order to survive. So if it's speech, it is not going to be constitutional unless the government can articulate a compelling goal for the law and can argue that there was no other way to
accomplish it. The state, on the other hand, was arguing that this was just part and parcel of the state's regulation of the medical profession, that the state had a responsibility that those it has licensed to provide medical services only provide medical care that meets the consent standard of care.
And the consensus in the medical community is that conversion therapy is a bad thing, that it has studies show that it harms people who are forced to undergo it, and so those are the two sides of the debate on that very central question is how do we conceptualize this?
Do you make anything out of the fact that Justice Brett Kavanaugh asked no questions at all during the ninety minutes.
I don't know how to read that. So again, I just want to emphasize it's not necessarily crazy to say this is speech. But I want to just highlight the fact that when they encountered a similar argument with regard to doctors whose speech was being regulated, they were very dismissive of the speech claims that literally, these were laws that say, doctors, you must provide this information to your patients.
Even if it's not medically sound, or medically necessary or medically relevant, you still have to say these words, right, So it seems even a further step away from the provision of medical care because it wasn't even appropriate medical care. Nonetheless, the court said, no, no, no, no, this is just the state's regulation of the provision of medical treatment. And therefore, because it's the parcel of the practice of medicine, which is a highly regulated field, the state is allowed to
regulate its doctors and the provision of care. This too is someone who is licensed by the state, and this too is regulating their provision of care. So it's really hard to principally dis one case from the other case. And if this is going to be considered speech protected by the free speech clause, then it's going to become even harder to understand why abortion doctors speech is not also speech that's protected by the free speech clause.
Is there any chance that they would send this back to a lower court for more proceedings.
So that was another thing that they were wrangling with. I think some of the liberal justices had given up on persuading the majority that this was not speech that triggers strict scrutiny, and so there were two options. They could announce, say this is actually speech, it's subject to strict scrutiny, and they could remand it back to the lower courts to actually apply the scrutiny in the first instance,
or they could just apply it themselves. And there was some attempt to at least have a court say all right, this is going to trigger strict scrutiny, and we're going to let the lower courts look at it. So Colorado has a chance to make its argument that this advance is a very compelling goal, namely the protection of LGBTQ kids, and that the law was narrowly tailored to accomplish that goal, that this is really the only way to protect them against the harms of conversion therapy is by not allowing
conversion therapy. So the fact that it's speech doesn't automatically mean that the law is unconstitutional. It just makes it that much harder for the state to make its argument about why it should stand.
There was also a standing question because here this law has been on the book since twenty nineteen and the state has yet to enforce it. The plaintiff here is represented by, as you mentioned, the Alliance Defending Freedom, and they're also the group that represented a Christian website designer in Colorado who didn't want to work on websites for same sex couples even though no one had asked her to.
Is Alliance Defending Freedom just going after these particular causes and finding a plaintiff to sue.
Well.
I don't know exactly what they're doing, but they are clearly at the vanguard of pressing conservative Christian claims that disadvantage and harm the LGBT community. And I think that the Court is receptive to these claims and is eager to decide them in favor of this conservative Christian ideas and will not let themselves be bothered by something like standing.
The Supreme Court has been steadily rolling back protections for gay and transgender people in recent terms, and I was just trying to remember the last time I can think of that LGBTQ wrights one at the Supreme Court was the boss Stock case in twenty twenty. Is that the last time.
I think so? And even then they always anticipated a carve out for anyone who protested on religious grounds. I think the public has less confidence in this Supreme Court than any court that I remember. I think they have really undermined their own credibility by so aggressively promoting a particular ideology, and to do so at the expense of a marginalized community is not to their honor. And let's be clear, they get to pick and choose their cases.
There was nothing that require them to decide this case. I think in addition to its long standing attack on the LGB community, I think we also are seeing here a real disparagement of expertise, which we also saw in Screbetti, because to be clear, there is a consensus in the medical community that this therapy is really harmful, and yet
they did not seem to accept that. Instead, they kept pushing back against this idea that the experts knew what they were talking about, and certainly Alliance Defending Freedom is helping them by producing all kinds of questionable claims about
the reliability of the science underlying the medical consensus. And to be sure, the medical community has made errors in the past, but if we have to rely on something, you know better to rely on medical experts and the weight of the medical community than a right wing political group who has a particular Mission.
And later in the term the Supreme Court, we'll be hearing another case involving transgender girls and women participating in female sports. Thanks Caroline. That's Professor Caroline Malacorbin of the University of Miami Law School. And that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law Podcast.
You can find them on Apple Podcasts, Spotify, and at www dot bloomberg dot com, slash podcast Slash Law, And remember to tune into The Bloomberg Law Show every weeknight at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg