Impeaching Mayorkas & Multibillion Dollar Bayer Verdicts

This is Bloomberg Law with June Brusso from Bloomberg Radio.

We will be moving forward swiftly on those articles. It's long overdue.

Only one Cabinet secretary has ever been impeached by the House, and that was in eighteen seventy six. But House Republicans are trying to make that happen again, this time to Homeland Security Secretary Alejandro Majorcis. The Republicans who are leading the impeachment inquiry said that Majorcas has been ignoring the law and accused him of creating the crisis at the border. Here's the chair of the Homeland Security Committee, Republican Mark Green.

Homeland Security Secretary Alejandro Majorcis took a similar oath, but he has not lived up to it. He is wilfully and systematically refused to comply with the laws passed by Congress and breached the trust of Congress and the American people.

But Democrats, like Committee ranking member Benny Thompson, say that Republicans are confusing law with policy and that Majorcis has acted within his authority to enforce current immigration laws.

He's leveraged the full range of authorities at his disposal, while stretching the resources provided by Congress to secure the border. He has removed record levels of migrants detained by more people than Congress has provided funding for, and prevented record levels of fentanyl from entering our communities.

And Democratic Congressman Dan Goldman says its pure hypocrisy to impeach Mariorcists while he's working with a group of Senate Republicans to craft a bipartisan deal on immigration, a deal that House Republicans refused to consider. The committee vote to advance the impeachment articles against Mariorcists was eighteen to fifteen down party lines. Joining me is an expert on impeachment, Michael Gerhard, a professor at the University of North Carolina

Those terms referred to serious abuses of power or misconduct on the part of the people who are impeachable that seriously hurts the republic.

So there's nothing definitive. It's a broad category.

Well, it's a broad category, but I don't think it lacks definiteness. I think it just means that it creates a metric which ought to sort of recognize that some things are going to fall below it and some things are going to fit. Jay Walkin won't qualify, but President's lying to the Senate to securit a Treaties ratification might qualify. Abuse of the pardon power might qualify.

They have advanced two articles of impeachment against Secretary Majorcis. The first is that he's willfully and systemically refused to comply with immigration laws enacted by Congress. They're basically saying that his actions have created the crisis at the border.

That's what they want to say. Yes, and of course that's absurd. That crisis has been around for decades and New Yorcus is following the law, as both he and President Biden understand.

Some Democratic lawmakers have said that what the Republicans are complaining about or attacking Majorcus for is policy.

Yes. In fact, for example, the reference to as a basis for one of the patron articles, New York has has made various false statements. But if you sort of get behind that, what the articles are really saying is, well, he hasn't said under oath that the situation at the southern border is like what we the Republicans think it is. They doesn't make for a false statement. It just means that New York is you know from the respective he's god,

That's part of the second article of impeachment, knowingly making false it's to Congress and the American people and obstructing Congressional oversight of his department. In fact, he's testified before Congress more than any other cabinet member twenty seven times in thirty five months.

And really what's behind that charge is he just hasn't said what they want him to say. He hasn't done what they want him to do, So no legitimate basis for impeachment.

How unusual is it that they held two public impeachment hearings last month without majorcas is in person testimony or testimony from any fact witnesses.

Exactly right, because this is not about impeachure on wisconduct. It's about trying to hurt President Biden in his re election campaign. This is about trying to serve make a circus out of what's happening down at the border. So the problem with basing impeachment on policy differences is that's

And two law professors who testified before the committee agree with you. They both stated they did not see a constitutional basis for impeachment. And there are a whole slate of Democrats that House Republicans want to impeach, including of course the president. How did we get to this frequent use of impeachment something that was rare in our history.

It happened with Trump and those people that want to sort of follow his lead. So Mike Johnson is very close to Trump. You know, he voted not to impeach Trump either time. And he's working with the kind of far right and the magu Republicans in the House to really turn impeachment into a partisan weapon. This is not something that we've had experience with before because generally speaking, although we've never had a perfect system of politics, impeachment

Yeah, and so the Homeland Security Committee Chair Mark Green said he feels quote pretty good. The same question gets asked, are you just doing something that's going to wind up being fruitless anyway because of the Senate? Well, fine, if that's what they choose to do, but I have a duty to.

Do right way is exactly what House Democrats said when they were faced with the same argument when they were trying to impeach Trump, and Republicans said at that time, Oh, this is a waste of time. It's just going to die in the Senate. But in my opinion, one big difference between the two impeachments of Trump and these other impeachments is the impeachments against Trump were based on his misconduct.

The full House is going to vote on this, and the Speaker the vote will take place as soon as possible, and then it goes to the Senate. Does the Senate have to hold a trial.

Then that is the big question. The Senate has to do something now that doesn't necessarily mean hold the trial. The Senate has various options. One is to consider point of order to try and dismiss the articles basically for

So the Senate could also just run out the clock until the next election.

Well, I don't know that the Senate will run out the clock. I think they'll reach some resolution. I find it less likely they would just run out the clock. I mean, for one reason that when you have an impeachment by the rules of the Senate, that tends to displace everything else on the agenda. So the Senate's going an incentive, if anything, to get rid of this quickly. I think the fact that there is no evidence, that Republicans themselves are saying there's no evidence, is a fatal

Also, some Democrats are pointing out that it's odd or hypocritical to impeach Majorcus at the same time that he's working with a group of Senate Republicans to craft a bypart is in deal to update immigration laws, a deal which House Republicans oppose.

Exactly, And that tells us something out House Republicans' agenda. So I think when you know Speaker Mike Johnson says the Senate deal on the border is dead and arrival and then proceeds to prioritize an impeachment in New YORKUS, that pretty much is telling us all we need to know because impeaching New Yorkers will not solve the crisis

When was the last time anyone who was impeached was convicted in the Senate?

Thomas Portius federal trial Judge Portis was convicted around twenty ten. But I mean, and there's one Cabinet member in American history who is impeached. That's William Beltnapp, who tried to resign but the Senate proceeded to hold a trial anyway because he'd been accused of bribery. But it turned out a majority of the Senate essentially voted to quit him because he was no longer in offered.

And to put the Majorcis impeachment in context, there have only been twenty one impeachments in our country's history, and only eight were found guilty by the Senate and removed from office. And they were all federal judges like Judge Portius. Thanks so much for being on the show, Michael. That's Professor Michael Gerhardt of the University of North Carolina School of Law coming up next on the Bloomberg Law Show.

One would certainly hope. So although I think you know, Bear would probably mention that they've won ten of the last sixteen trials, I think their hope certainly is to try to get a case like this reverse on appeal, and there is some precedent for that in the past. Back in twenty nineteen, a California jury awarded roughly two point five billion dollars in damages that ended up getting slashed to eighty seven million. So it's still a lot of money, but certainly not money.

With a bee, you know, beyor it's vowed to appeal, express confidence that will prevail, and it says it's not giving up as far as trying cases, But what is it strategy? Because it did settle, it did spend about ten billion on settling one hundred and fifty thousand cases.

You're right, it absolutely did, and it also indicated I think a year or two ago, that it was planning to pull round Up off the market in the next couple of years. I think the hope being that at some point these cases will stop. But the difficulty of that bear's facing is that there's a long gap between exposure a round Up and then the potential for developing some sort of a non Hodgkinson bomar, a different type

The only multi billion dollar verdict in a mass torque case. Is there a reason why these verdicts are reaching what, you know, i'd consider astronomical figures.

Yeah, I mean, you know, the juries are not happy with the evidence that they hear. There is evidence that they are wanting to punish the company. So this isn't just sort of a slap on the risk, let's compensate the victim type of damage award. This is a you've done something really wrong and we're angry about it kind of award.

It certainly seems they're angry. So theyer is facing now. Ten trials are expected this year in state courts. It says the companies committed to trying round up cases based on the strength of the science, favorable regulatory assessments worldwide, and approven record of success at trial. It was successful until I think it was October when plaintiffs started racking

You know, it's hard to pinpoint a particular sea change. They were certainly successful in settling a bulk of those cases through what's known as the multi district litigation process. That's at the federal level, but where they're really facing pressure now is at the state level, particularly in jurisdictions like Philadelphia.

Do you know, does Beyer use the same legal team for these cases or do they change up legal teams?

You know, I don't know the answer to that. I haven't followed who their lead lawyers are in these cases. But it's not uncommon for there to be several big law firms involved in handling a litigation.

Like this, does beyor have enough money in its knowation coffers to settle these cases or to pay them.

Even well, I mean that certainly remains to be seen. No money goes to the victims while cases are on appeal, and as you know, appeals can last for a couple of years. So certainly there's that question if they're going to continue to face these types of billion dollar verdicts, whether at some point it's going to become an issue. But they haven't indicated that they are considering filing for bankruptcy to my knowledge, And as you said.

Even if they settle some cases, because Roundup is still on the market, they're exposed to future litigation exactly.

So you can't sue just because you've been exposed to a chemical. You can only sue once something has manifested, some sort of injury has manifested, which means that if it takes some you know, ten to fourteen years between the exposure to the product and the development of the disease, that we're going to be looking at these types of lawsuits for many years to come.

Do you know why Bayer didn't take round Up off the market? What went into their calculation.

I can only assume it's because it's still a pretty big seller. You know, when they contemplated taking it off the market and indicated that they were going to take it off the market in the future, they were trying to come up with something that was equally effective at killing weeds, and that was going to take some time to develop. With my understanding, so I think they're trying to have some sort of replacement for it as soon as they pull it from the shelf.

And there's contradictory scientific evidence and opinions from different agencies about whether the chemical in roundup is a carcinogen dravid and whether it's cancerous.

That's correct, and I think that's part of what juries might be struggling with and maybe the reason for the ten wins that they've had at trials. So back in twenty fifteen, part of the World Health Organization shown called the International Agency for Research on Cancer, classified the chemical that's used in round Up, glycophosphate, as part of a chemical that is probably carcinogenic in humans. But the EPA back in twenty ten said there were no risks to

Have plaintiffs attorneys had a different strategy in the latest cases.

You know, I think every case is probably unique in the sense that you're really highlighting the facts of your particular client. And I think what we see in this latest case is not just the use of kind of garden variety round up on a half acre plot of land, but sustained use over a fairly large plot of land, multiple acres and many, many gallons of round up braid at a time. So you really do see a high

So we talk about the possibility of future cases. But plaintiffs who sue in the future, are they on notice of the possible cancer causing agents in roundup?

So this is one of the questions that we'll have to see in the future. You know that the cases that we're seeing right now don't have notice about this potential for cancer. But in tort law, there's something called the assumption of the risk and defense called comparative fault, which means, you know, for example, that if you're a smoker and you've been smoking for a long time. But you know that smoking can cause lung cancer, then you

Another front that Behar still hopes will be successful is convincing US appeals courts that federal law preempts state based claims.

Well, the preemption question has been out there for a long time. It's not some thing that they've been successful on thus far, and so you know, I think that's still a really open question that remains to be seen, but they haven't gotten a lot of traction with it.

Would it be possible for Bayer to negotiate a global settlement of these claims.

I think it's going to be really difficult for them at this point. They certainly tried to negotiate a global settlement several years ago when they tried to certify these cases as a class action in federal court. That was a move that was denied by the judge and the federal multi district litigation. It would be really difficult, I think without plaine of consent and Plaine offs attorney's consent

Is it creating a cloud over the company itself?

Certainly? I mean, you know, we see shares of Bear falling almost three percent before the jury announce their verdict, and the sharehold are certainly watching this. So this is a litigation that is a thorn in the side of Bear.

If you were advising Beyer, how would you advise them to handle all these cases? I mean, try to settle.

I mean, it's a real problem. There's not a way to get any kind of global resolution based on the types of things that we know now. So the easiest way to try to do something like that would be the file bankruptcy. But Bear has not indicated that I know of that they have any sort of plans of filing bankruptcy in the future. But in order to try to get rid of state and federal cases and any kind of holistic settlement, most defendants are looking at bankruptcy.

Johnson and Johnson tried to get the Supreme Court to here it's appeal over a two point one billion dollar chalk award, and the court refused. That was back in twenty twenty one. Remind us of where the court stands on these damage awards.

The Supreme Court back in the nineties decided several cases a trilogy of cases on punitive damages that capped essentially capped the ratio between compensatory damages and punitive damages is no greater than nine to one. Now, there can certainly be some exceptions to that, but in general, the Supreme Court has weighed in. So this is what we think would be appropriate. But the Supreme Court really has not

Can the round Up litigation be compared to the Tauk litigation? Is it similar?

It is similar Like round Up. There is a latency period in town, particularly between the exposure to tell Some would say that's exposure to taut laced with asbestos, between the exposure and the development of the disease. So I think both Johnson and Johnson and the tout cases and there in the round up cases are struggling with how do we get closure in a case like this where there are likely to be in many more cases in the pipeline for years to come.

I've been noticing recently that not just in this area, but in many areas, there are just stunning jury verdicts.

You know.

I think what we see oftentimes is in the headlines. We get these astronomical verdicts because they are so newsworthy and they're so fun to report. But it's important to remember that in about eighty percent of the cases, judges and juries actually agree on what the amount should be. And so when you see verdicts like this, they aren't necessarily the run of the mill cases. They're typically some kind of an aberration, and there might well be a reason for that.

Thanks so much for being on the show, Elizabeth, then giving us insights into this complex area of litigation. As Professor Elizabeth Birch of the University of Georgia School of Law. Coming up next on The Bloomberg Law Show, Harvard University is facing congressional investigations as well as an investigation by the Department of Education. I'm June Grossen, you're listening to Bloomberg.

So two congressional committees are investigating Harvard. The House Education and the Workforce Committee has two inquiries going on on and the House Waves and Means Committee has has its own inquiry. And you'll remember that the House Ways and Means Committee called Harvard President Claudine Gay, as well as the presidents of MIT and PEN for that now infamous hearing on December fifth.

And it's sort of amazing that two of them were fired or had to leave.

Yes, And there's been pressure on the third president, Sally Cornbluth at MIT, for her to step down, but her board has been pretty supportive.

They came out right after the hearing in support.

Of her, and the Harvard board was pretty supportive until these plagiarism allegations came up with gay Right.

Yes, they came out on December twelfth with a statement that they support her and she was the right leader for Harvard, and then you started seeing more plagiarism charges

Of this year.

Their endowment returns have not been great. They haven't seen these double digit returns for many years. Of course, everyone did in twenty twenty one, but Harvard lagged its peers. And they also are spending a lot, and also one of their biggest donors is the federal government. Eleven percent of their budget last year came from the federal government in scientific research grants and other grants. And that money also doesn't include one hundred and five million dollars in

Have to borrow.

So these congressional hearings and inquiries, and then we haven't even talked about the Education Department separate in quiry. There's a lot going on in Harvard. Their legal bills are mounting, and they added an additional law firm.

To help them with a congressional committee work.

So Wilmer Hale, that law firm was the only law firm who prepared Gay for her testimonies.

At that's my understanding, But a place like Harvard is very complicated, so you know, wilmer Hale, we noted a ton of legal work for the affirmative action case, and that was another legal challenge that Harvard loss that had I'm sure racked up a lot of legal expenses, and on June twenty nine, Harvard lost that case in the Supreme Court.

Was wilmer Hale doing this work pro bono? So?

One attorney at wilmer Hale, Bill Lee, used to be the chairman of their governing board, which is called the Harvard Corporation, and his title with senior fellow and Harvard had discussed that he personally did not charge for his own time advising Harvard in the firmative ash case. But that doesn't mean the entire law firm wasn't big paid. My understanding as it was.

And they were also advising the Penn president.

Yes, they did advise the Penn president.

And they're also advising Penn on their ways and means in coiry. And I should note that ways and means is not only Harvard, it's also Penn, MIT and Cornell.

Is there something about wilmer Hale. Do they have a specific department that handles education. Is there a reason why they're so involved.

Well, my understanding is there was a connection with Bill Lee, again is the senior fellow, former chairman of the board at Harvard, and he did a lot of the work for the admissions case, so perhaps they retained them to do other work. I know that Ropes and Gray had been a longtime firm for Harvard. But again there's a lot of legal work zoning, you know, real estate investments. It's a six billion dollar operation, so they must have

So now they're hiring another firm, King and Spaulding to come on and work with Wilmer Hale.

Yes, that is correct, So now.

Where does the plagiar investigations stand? Is it over?

So that was granted an extension on December twenty ninth, they turned in reports to you know, addressing the inquiry, and.

We don't know where that stands.

And then the Anti Semitism Inquiry, and we had a story about that as well, and that story was about Harvard's inadequate answer to the probe. And you know, if you read the statement that Virginia Fox, the chairman of the committee, again the very person who called the December fifth hearing, she said that Harvard could face compulsory measures if it fails to cooperate with the inquiry, and that means, you know, they have the authority to issue subpoenis.

Is this usual for congressional committees to be investigating private schools?

Well, that's an excellent question.

Why is congress in involving itself in private schools? And the answer is something we touched on earlier. Harvard and a lot of other search universities get a ton of money from the federal government. They got hundreds of millions of dollars annually in federal research grants. Their students last year got one hundred and five million dollars in federal student loans to borrow for graduate school, like at Harvard

And other research universities.

So is it fair that Congress is grilling them? You know, some might say they want to know how their money is being spent. And the question about plagiarism involved how is Harvard handling this inquiry, especially in light of how it handles plagiarism with students and other faculty members. And there were also questions about it's a creditor and Harvard cannot get any federal money unless it's accredited.

And what is specifically is the anti semitism investigation about?

So the Education Committee asked I believe it was twenty four sets of questions, so a lot looking at how they were handling anti semitism, looking at you know, asking for correspondence. They also asked questions about the Jewish population over time, because there had been questions about that it had declined, and you know, they wanted to know a lot of things. And Penn received the same inquiry last week.

And the Education Department what is its investigation about?

Now that's a completely separate investigation, and you know, almost three dozen colleges are also being investigated last week. I believe Yale and Northwestern were at it. And again the same group of colleges, Harvard, Mit, Penn, Cornell, you know a lot of schools, and that is looking at discrimination and it's about titles six of the Federal Civil Rights Act.

Is there a date coming up that we have to keep our eye on.

They haven't announced any more committee hearings, but that's always possible, waiting to hear more back about the Education Committee probe into anti Semitism, what happens with the plagiarism inquiry, what happens with Ways and Means? And I'll add Ways and Means also did its own inquiry around twenty sixteen with the Senate Finance Committee, and they asked a whole host of questions about their endowment spending, fees from investment managers,

Out, fun for you, not fun for spills.

But they were answering questions like when do you turn down money? So that was really insightful and people thought, well, nothing's going to happen of this. And what happened in twenty seventeen as part of the Trump tax package, they slapped an endowment tax on schools. More than three dozen schools now pay one point four percent on their net investment returns a couple hundred million dollars, and that goes

Well, you did a good job of telling us what is happening. Thanks so much, Janet. That's Janet Lauren Bloomberg, higher Education and Finance reporter. And in other legal news today, for the first time, a mother is standing trial for a mass shooting by her child. Jennifer Crumbley is on trial for the murders of four students in a shooting room at a Michigan high school in November of twenty twenty one, the worst school shooting in the state's history.

I trusted him and I felt like I had an open door and he can come to me about anything. I mean, I fell as a family where three of us were really close.

Crumbly also said she never noticed her son having major mental health struggles.

There's a couple of times where Ethan had sprossed anxiety, overtaking tests, anxiety about what he is going to do after high school while it was college military.

Crumbley is being tried for involuntary manslaughter, which carries a maximum sentence of fifteen years in prison. Ethan's father, James Crumby, will also be tried for involuntary manslaughter at a separate trial in March. As for Ethan, he was sentenced to life in prison in December after he pleaded guilty to murder, terrorism, and other crimes. And that's it for this edition of