Conversion Therapy Ban & Comey Pleads Not Guilty

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1:48With our unified Team Michigan approach, businesses scale faster and compete at the highest level. Michigan, pure opportunity. Seize your opportunity at michiganbusiness.org. This is Bloomberg Law with June Grosso from Bloomberg Radio. Former FBI Director James Comey pleaded not guilty today to charges 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. Comey's attorney, Patrick Fitzgerald, a former U.S. attorney for the Northern District of Illinois, entered the plea of not guilty and said it was the honor of my life to represent Mr.

2:39Comey in this matter. It wasn't surprising that Fitzgerald said Comey 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 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 U.S. attorney for Chicago. And he made three main points that they are going to challenge that the case against Comey represents a vindictive prosecution and a selective prosecution, and that the appointment of the interim U.S.

3:31attorney 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 prosecutorial 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 U.S. attorneys need to be Senate confirmed or they need to be given the appointment by federal judges.

4:22It's allowed to have a temporary appointment, but the temporary appointment must be somebody who comes from within the Justice Department, which Lindsey 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 would 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 juries have returned.

4:59So the defense does face some obstacles to being able to do it. But the rules of how U.S. 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 Comey authorized to provide information and what information that person provided and who it related to. In the indictment, it says that Comey authorized person three to provide information about person one.

5:43It'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, you know, provided the information. And Comey'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's not the leak. Correct. Comey's accused of lying to Congress, making a false statement during a testimony that he gave to the Senate Judiciary Committee in September of 2020.

6:23So 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 Comey's testimony, Comey 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 Comey made a false statement by saying he stood behind his previous testimony. So Comey is not being charged with actually authorizing the leak. He's being charged with lying about authorizing the leak.

7:08The 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 Comey to mount his defense, because the government needs to work out a process by which classified information can be shared with Comey's defense team or provided to the judge under seal.

8:02And 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 judge 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 Comey for his defense. The judge said this doesn't appear to be an overly complicated case. I mean, they can certainly give Comey the name of the people in the indictment.

8:50I mean, that seems bare minimum. Yeah, it was surprising that the government had not already provided Comey and his lawyers with just the basic information of who they allege Comey authorized to leak information. The lawyer for Comey said that they had had no discussion with the government until yesterday, And even then, that was a very brief discussion. And so Comey'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 has been from the start and how there might be a problem with the ability of the new U.S. attorney who has never prosecuted a case before to manage this prosecution.

9:50The 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 U.S. 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 U.S. attorney who went and got the indictment by herself with no other prosecutors from the office signed on to the indictment and then had to bring in, you know, assistant U.S.

10:43attorneys 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 can be some of the most complicated cases that the Justice Department deals with.

11:25In 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 5th. Are there any other hearings scheduled? Yes, there will be two hearings with oral arguments, one in 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.

12:18And if they can't 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 counsel a clearance to be able to review the classified information.

12:59And 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 counsel 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 Comey'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.

13:48But 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. We'll 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. This message is brought to you by Apple Card. Apple Card puts the power of titanium in the palm of your hand. What does that mean? It means the power to earn unlimited daily cash back on your purchases every day.

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15:08Subscribe to Bloomberg Daybreak for a precise, thoughtful take on the stories that matter. Listen to Bloomberg Daybreak each morning on Apple, Spotify, or anywhere you listen. Colorado is one of 27 states that bar licensed counselors from using talk therapy to try to change a child's 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. A state cannot lose its power to regulate the very professionals that it licenses just because they are using words.

15:53A health care 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 2019 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 appeared to agree with her during oral arguments, questioning the constitutionality of the law. Here are Chief Justice John Roberts and Justice Samuel Alito.

16:37In other words, just because they're engaged in conduct doesn't mean that their words aren't protected. One viewpoint is the viewpoint that a minor 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 minor should not be able to obtain talk therapy to overcome same-sex attraction, even if that is what he or she wants. Looks like blatant viewpoint discrimination. Liberal justices Sonia Sotomayor and Ketanji Brown-Jackson suggested they would back the law. Sotomayor was the only justice who addressed the harms that all major medical associations warn about conversion therapy.

17:22There are studies that say that this advice does harm the people emotionally and physically. And Jackson questioned 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. Childs here were writing an article about conversion therapy or writing or giving a speech about it. My guest is an expert on religion and the law, Caroline Malikorbin, a professor at the University of Miami Law School. Will you explain conversion therapy and Colorado's law?

18:12Chris Strohm:As about half the states in the country have done, Colorado banned something that has been called gay conversion therapy and 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 deleterious 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.

19:03Chris Strohm: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 therapist 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.

19:48Chris Strohm: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 Defending 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.

20:43Chris Strohm: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 characterize? Is it speech or is it conduct? Now, I just want to point out that 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.

21:36Chris Strohm:But that 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 wouldn't be considered speech. It would be considered the act of discrimination. And so while it may seem really obvious on its face that, 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.

22:33Chris Strohm: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 legal 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.

23:34Chris Strohm: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.

24:21Is this a novel issue coming to the court? Have they decided any similar cases?

24:27Chris Strohm: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.

25:12Chris Strohm:But the point I want to make here is that doctors challenged 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.

25:57Chris Strohm:constitutional. 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.

26:52Chris Strohm: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.

27:50Chris Strohm: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 affirming 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 review or a very limited heightened review as opposed to regulation of speech. Justice Ketanji Brown Jackson questioned why the Colorado law should be struck down while the court upheld a different measure from Tennessee that bans transition-related treatments for minors. But she didn't push very hard on it, and she was the only one who really mentioned it.

28:35Chris Strohm:Yes, exactly, because we have the Scrimetti case that was decided recently where states are banning gender-affirming 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 always 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 and you're listening to Bloomberg.

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30:15A majority of Supreme Court justices seem likely to side with a Christian counselor challenging bans on LGBTQ plus conversion therapy for kids as a violation of her First Amendment rights. I've been talking to Professor Caroline Malacorban 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?