Weekend Law: SCOTUS Term Analysis & What's Next for Sean 'Diddy' Combs

0:00Some people treat ChatGPT like some kind of smart search engine, and some use it to get work done. ChatGPT Work is a new way of working in ChatGPT that can take action across your apps and files, stay with a project for hours if needed, and turn a goal into finished work. It's designed to help you move from a chaotic starting point to a reviewable first version. So all the source materials, briefs, and scattered information that you have to grind through to turn into something useful can just become something useful. Put ChatGPT to work on your most ambitious ideas and projects. Get started at ChatGPT.com by selecting Work Mode, available on Plus and Pro plans.

0:42This is Robert Smith from Business History. If you're listening to this, there's a good chance you're a small business owner. And like every small business owner, you started with a dream to do what you love and watch it grow. What you probably didn't dream about? Keeping up with cyber threats. That's where MasterCard can help with access to tools that help identify cyber threats to better protect your business. Building your dream business? Priceless. For cybersecurity in a changing world, there's MasterCard. Learn more at MasterCard.com slash small business. If you listen to financial news, you know a lot of time is spent thinking about what's next.

1:17The next opportunity. The next investment. The next move. But sometimes what matters most is being ready for what you never saw coming. For more than 75 years, Cincinnati Insurance has worked with independent agents to help protect businesses, homes, valuables, and more. Because planning for the future isn't only about knowing what's next. It's about making sure you're ready for what you can't predict. Let Cincinnati insurance make your bad day better. Find an independent agent at CINFIN.com. This is Bloomberg Law with June Grosso from Bloomberg Radio. It's a great victory for Sean Combs. It's a great victory for the jury system.

2:04You saw that the Southern District of New York prosecutors came at him with all that they had. It was indeed a resounding victory for Sean Diddy Combs and a resounding loss for federal prosecutors. After more than six weeks of sometimes graphic and emotional testimony, the jury acquitted Combs of the most serious charges against him, racketeering conspiracy and sex trafficking, and convicted him only of the lesser charges of transportation to engage in prostitution. After the verdict was read, Combs mouthed the words, thank you to the jurors, dropped to his knees and prayed. With good reason. Instead of facing a sentence of life in prison, he now likely faces no more than six years, although the decision on his sentence will ultimately be up to the judge.

2:57My guest is former federal prosecutor Robert Mintz, a partner at McCarter & English. Bob, he was convicted of two felonies, but Combs and his lawyers were elated with the verdict.

3:32prosecutors. So the top count, racketeering conspiracy, the charge has historically been used to take down mob bosses like John Gotti. Did the prosecutors overcharge him with this count? Well, I think that's going to be the question that prosecutors will have to ask themselves when they look back on this case, whether or not it was overcharged with the RICO conspiracy. Now, the RICO conspiracy, as you say, has been used traditionally in order to prosecute organized crime figures, but it has been used more broadly in recent years and was used in a high-profile case just a couple of years ago in the R.

4:11Kelly case, where that hip-hop artist was also charged with RICO and sex trafficking in 2021. And in that instance, prosecutors did get a conviction. But here, jurors ultimately concluded that the RICO conspiracy was overcharged, that the prosecution did not meet the burden of showing that Sean Combs had used his business empire as a vehicle in order to commit further acts and in order to force his former girlfriend into performing sexual acts against their will. Explain how when prosecutors overcharge, it gives the defense an opening to challenge their case. Well, that's ultimately where this case turned.

4:55It was really an argument by the defense that although Mr. Combs had committed some abhorrent acts, they had the video of him kicking Cassie Ventura by the elevator bank out in Beverly Hills. That was undeniably bad behavior and painted Mr. Combs in a very negative light. But when that was held up against the more serious charges of racketeering conspiracy, which included certain criminal acts, such as forced labor, bribery, obstruction of justice, all of that was thrown in. And basically, prosecutors were saying that he used this vast empire that he built up over many years simply as a means of forcing these ex-girlfriends to continue to perform these sexual acts against their will.

5:40And all the while, they were coerced into doing this. The defense was able to effectively pick that apart by showing text messages from both of the victims, which at various times suggested that they had participated in these acts willfully, that they were not coerced, that they could have left but chose not to. And ultimately, I think that was the downfall for the prosecution's case. It really ultimately turned on whether they believed that the victims were actually trapped in this relationship and had no way out and were literally forced to commit these acts or whether this is more complex than that.

6:19And the defense was able to show that these relationships, while toxic, while not healthy, and while it involved bad behavior by Mr. Combs, didn't rise to the level of racketeering conspiracy. The two acquittals for sex trafficking, which stemmed from allegations that Combs forced his two ex-girlfriends to engage in these so-called freak-offs. And Ventura testified over four days some very emotional testimony. I mean, you refer to this, but did the jurors just not believe her? It's hard to say exactly what they were thinking. That testimony was compelling. That testimony had to be very emotional for jurors to sit through.

7:02And yet at the end of the day, they did not believe that she was necessarily compelled to participate in commercial sex acts through forced fraud and coercion. The key here is there has to be a link between the force, the fraud and the coercion and the acts of sex. And I think at the end of the day, the evidence was just not clear enough for them to meet that burden. Remember, prosecutors have to prove that our case beyond a reasonable doubt is anything less than that will result in an acquittal, as we saw here. And sex trafficking. Did those charges even fit the facts here? Aren't people usually charged with sex trafficking when there's no connection to the victims, not people in long-term relationships like Combs and his ex-girlfriends?

7:49Yeah, that was, I think, one of the problems, too, because the victims here were involved in these long-term relationships, and they had written many messages, emails, text messages, other writings, evidencing their love for Mr. Combs at various times, the fact that they willingly participated in some of these acts, the fact that they did things in order to please him, and the fact that after some of these sessions, they texted him saying that they enjoyed them. And I think it was very difficult for jurors to necessarily conclude that all of this was done against their will, that none of it was consensual.

8:24And as you say, June, it's a situation where the sex trafficking charge is typically brought in an instance where the perpetrator does not have a relationship with the victim. Here, there was a long-term relationship, one that was very complicated, and also one in which the victims had benefited financially from their relationship with Mr. Combs. So it became, I think, very difficult for jurors to sort out the true nature of those relationships. I don't think they necessarily disbelieved the victims, but I think they ultimately concluded that the facts, as presented to them in court, did not meet the elements of the sex trafficking charges.

9:04He was convicted of two counts of transportation to engage in prostitution. That stems from allegations that he paid sex workers to come to his freak-off parties. Tell us about that. That's a felony violation of the Federal Mann Act. These were the charges that were really easiest for prosecutors to prove, because all they have to show is that individuals crossed state lines with the intent to engage in prostitution. And there was plenty of evidence presented at the trial that Mr. Combs had made arrangements for these male prostitutes to meet with his girlfriend. He bought plane tickets. There were credit card statements.

9:43There were hotel records. These were the charges that prosecutors were able to prove fairly readily. And there wasn't really much of a defense to them. I think the defense strategy was to focus on the more serious charges, which they ultimately succeeded in convincing jurors to acquit their client on. The prosecution put on 34 witnesses. The defense didn't call any witnesses and elected instead to challenge the credibility of the prosecution's witnesses through lengthy cross-examinations that sometimes were longer than the directs. Was that a risky move by the defense? No, I think from the very start, the defense strategy was always to win their case through cross-examination.

10:29I think they correctly sized the case up and knew that it was going to turn on the testimony of the two victims and how compelling they were, and that by adding witnesses for the defense, it was only going to complicate the case and create a more complex narrative for them to have to convince jurors as to exactly what was going on here. They wanted the case ultimately to be about these two victims and to show that the relationship that they were in with Mr. Combs over many years was one in which they gained financially, one in which they willingly participated in. No doubt there were ups and downs in those relationships, and there were some domestic violence that went on.

11:08And the defense readily admitted that. But the question is, did it really rise to the level of racketeering conspiracy? The defense placed a large bet that the jurors would answer that question in the negative, and ultimately they prevailed. Were you surprised that the judge refused to release Combs while he waits to be sentenced? I wasn't totally surprised. I think here there is some sense from the judge that the defense team is really trying to have it both ways on this issue. He noted that the Combs defense team at trial admitted the domestic violence claims and said that a confession was really unnecessary here because the defendant's violence was starkly depicted in the 2016 Intercontinental video referring to the video of Mr.

11:53Holmes violently beating Kathy Ventura. This suggests to me that the judge was very troubled by the violence he witnessed in the video and led him to conclude that Mr. Combs continues to pose a danger to the community, which is why he decided to leave him in jail pending sentencing. As far as sentencing, technically it's 10 years on each of the counts. Combs' lawyers said that under the federal sentencing guidelines, he'd likely face 21 to 27 months. Prosecutors, citing his violence and other factors, said he'd likely face 51 to 63 months. Considering what the judge said in denying bail, might he sentence Combs to more than that?

12:36Well, the upper limit that the judge can sentence him to is actually 20 years. That's the statutory maximum. The sentencing guidelines govern these sentences to the extent that they give guidance to the judge. But the judge has full discretion to sentence Mr. Combs to whatever he wants, theoretically, up to 20 years. I think the fact that he's decided to keep him in jail pending sentencing, even though he's already been in jail for almost a year, suggests that the judge does view this as a serious crime and may sentence him to something much closer to what prosecutors are asking than what the defense is seeking here.

13:14And it is even possible that the judge sentences him to something more than what prosecutors are asking for. It's highly unusual, but it is within the judge's discretion to really sentence Mr. Combs to whatever he believes is fair and just given the circumstances. There'll be a hearing next Tuesday to discuss the sentencing process. That should be interesting. Thanks so much, Bob. That's Robert Mintz of McCarter & English. Coming up next, the winners and losers at the Supreme Court this term. I'm June Grof, so you're listening to Bloomberg. Chief Justice John Roberts repeatedly stresses the importance of judicial independence, as he did during an interview in May.

13:55Its job is to obviously decide cases, but in the course of that, check the excesses of Congress or of the executive, and that does require a degree of independence. However, in the Supreme Court's recent term, it doesn't appear that justices did much to check the excesses of the current executive. In fact, the clear winner of the term was President Donald Trump. The court sided with him on broad legal questions and emergency requests to let his policies take effect, from throwing transgender service members out of the military to opening hundreds of thousands of migrants to deportation. And for the second year in a row, the court ended the term with a decision handing Trump a major...

14:42Some people treat Chachi PT like some kind of smart search engine, and some use it to get work done. ChatGPT Work is a new way of working in ChatGPT that can take action across your apps and files, stay with a project for hours if needed, and turn a goal into finished work. It's designed to help you move from a chaotic starting point to a reviewable first version. So all the source materials, briefs, and scattered information that you have to grind through to turn into something useful can just become something useful. Put ChatGPT to work on your most ambitious ideas and projects. Get started at ChachiBT.com by selecting Work Mode, available on Plus and Pro plans.

15:25At Edward Jones, we believe rich is more than caring about the latest and greatest. It's also taking care of what gives your life meaning. That's why your dedicated financial advisor meets you where you are, with personalized financial strategies that help protect what matters, so you can preserve your progress while creating a path forward. The key to being rich is knowing what counts. Let's find your rich together. Edward Jones, member SIPC. It's time to plan ahead and make sure your brand is showing up in ways that can have an impact. That's where 4imprint comes in. 4imprint have promotional products that work as hard as you do.

16:05Durable, useful, and designed to make a lasting impression. Think quality apparel your team will wear again and again, including popular and exclusive brands. Drinkware that's enjoyed again and again. Bags, notebooks, tools, and tech items that don't just look good, but actually get used. With thousands of customizable options, 4imprint makes it easy to find what fits your brand and your budget. You'll get expert help, free samples, and their 360-degree guarantee means you can be 4imprint certain your order shows up just right, right on time. Whether you're gearing up for fall events or simply planning ahead for the season, 4imprint can help your brand show up, stay useful, and make connections that last.

16:45Explore the possibilities at 4imprint.com. 4imprint. For certain. Victory. Basically eliminating the main tool used to thwart his ambitious agenda, the nationwide injunction. This was a big one, wasn't it? This was a big decision. An amazing decision, one that we're very happy about. Like almost all the high-profile cases this term, the court divided six to three down ideological lines with the conservatives in the majority and the liberals dissenting. Joining me is constitutional law expert Michael Dorff, a professor at Cornell Law School. Mike, the finale of the term, if you will, was the decision in the case over Trump's ban on automatic birthright citizenship, where the conservatives stripped the lower courts of the power to grant nationwide injunctions, which have really been the only effective check on the Trump agenda.

17:42Trump thought the decision was important enough to call a press conference. How important do you think it is? That remains to be seen. The prohibition on most universal injunctions will have very serious bite if, but only if, the court makes it difficult for plaintiffs to bring class actions and makes it difficult for states to sue for statewide injunctions. Those are two potential workarounds, neither of which the majority directly addresses, but both of which, Justice Alito and his concurrence suggest, should be only available under a heightened standard of sorts. So what remains to be seen is whether plaintiffs challenging these executive actions, here it was the birthright citizenship order, but it applies to virtually everything, whether they can quickly convert to class actions, whether states can bring these cases.

18:41If they can, then I think this ends up not being such a big deal. Getting class action status is a lot more complicated, and I think we've seen just in the last week how confusing it is for the lower courts to parse through this. The Supreme Court could have, and in my view should have, given more guidance on whether class actions are available and under what standard. You know, one of the things that I think is easily overlooked is the ruling in the case is not a constitutional holding. The court doesn't say that the Constitution forbids this kind of equitable relief. What it says is that this power was not conferred by statute on the federal court.

19:23Well, if that's the case, it's possible that Federal Rule of Civil Procedure 23, which is the class action provision, is empowered by the Rules Enabling Act, that that does confer this power. And that would be fully consistent. It would just lead to, you know, the availability of similar relief under a different mechanism. President Trump says that the administration is going to move to lift holds that judges have placed on a number of his policies. He mentioned fights over refugee resettlement, federal spending and sanctuary cities. So, you know, it's going to open up a can of worms. Oh, I think that's right.

19:58I mean, I think this is in some ways the basic problem with the Supreme Court these days, which is it's treating the Trump administration like a normal administration rather than one that is committed to pushing the edge of the envelope and getting away with whatever it can. And so, you know, if you were thinking about the system as a whole and what's good for the rule of law, you would have been much clearer in your guidance and in what you're allowing and not allowing. Justice Sonia Sotomayor, in one of her dissents, said the court was rewarding lawlessness because the Trump administration has repeatedly, either explicitly or not so explicitly, ignored court orders, particularly in the cases of immigration orders.

20:43She's exactly right that it's one thing to say, as the court has said in some of these cases, well, we think the lower courts went too far in issuing this order. That doesn't mean that the administration was permitted to violate the order while it was in force. The normal rule is if you don't like a court order, you appeal it. But unless you get a stay of that order and until you get a stay of that order, you have to comply with it. There were three cases involving LGBTQ rights that divided the justices down ideological lines and ended up in losses for the LGBTQ plus community. In the Scrimetti case, which has implications for transgender youth in more than half the states, the court's conservatives upheld Tennessee's ban on gender-affirming care for transgender minors.

21:33And advocates say the decision is devastating for transgender youth and their families in the 27 states that have similar bans. Here's Kelly Robinson, the president of the human rights campaign. You're going to have families, families that have been in states that they live in for generations. I know a family that's been in Arizona for generations and generations. They are Arizonans. They're going to have to leave their states just to get access to care for their kids. Justice Sonia Sotomayor wrote that she dissented in sadness. She said this decision will open the door to more state discrimination against trans teens and authorize, in her words, untold harm to these families.

22:16Mike, this was an equal protection argument. As it came to the Supreme Court, the only issue was whether this was a violation of equal protection. And the court, in a sense, I wouldn't say ducked that issue, but sort of mooted it by saying, well, there isn't a sex-based classification or even a transgender identity-based classification at issue here. so we don't have to apply the intermediate scrutiny that would normally apply to such laws, and therefore we only have to say whether it's rational, and of course states get to make all sorts of medical judgments. You subject those to rational basis scrutiny.

22:54They're almost always going to survive. So in a sense, the case doesn't tell us that much about the status of discrimination on the basis of transgender status under the Constitution going forward because the court said, well, we don't have to address that here, except that several justices in concurring opinions did address that and said, even if it is transgender-based discrimination, that's okay because that kind of discrimination doesn't trigger any heightened scrutiny. Would those three concurring justices, Clarence Thomas, Samuel Alito and Amy Coney Barrett reject heightened scrutiny for any anti-trans laws?

23:38I think that's right. I mean, Justice Barrett actually is the one who writes most extensively on this. And she says, look, we have criteria for deciding whether something is a suspect or semi-suspect classification and transgender status doesn't meet those criteria. Now, I think she applies them a little bit strangely. One of the things she says is that in order for something to be a so-called immutable characteristic, it has to be identifiable at birth. And transgender status doesn't emerge until later. Well, that's a kind of backwards analysis, because of course, the whole point of someone wanting to transition to address their gender dysphoria or other mismatch between their experience of themselves and the sex assigned at birth is that what they were treated as at birth was, you know, not accurate.

24:27And so it's a very odd thing to say, well, because when you were an infant, you didn't realize or other people didn't realize that you were a male inside of a female body or vice versa, then that's not real in some sense. So there's a way in which it's a kind of, you know, denial of the existence of transgender persons at all. I mean, she doesn't say that, but I think that's a logical implication of that particular criterion. I mean, the same drugs that Tennessee bans for the purpose of gender affirming care for transitioning minors are allowed for a number of other purposes in non-trans minors.

25:06How do they get away from saying that's not an equal protection violation? Right. So the plaintiffs and Justice Sotomayor in dissent, I think, are very clear. Look, if a boy wants to take this drug to give himself facial hair, you allow it. If a transgender boy who is assigned female at birth wants to take it, you disallow it. It's the same drug, same effect. How could that be anything other than sex discrimination? And what the court says is, well, it's not the same treatment if it's being prescribed for a different condition. In the boy who's taking this to give himself facial hair, it's being prescribed because he has low testosterone.

25:49in the transgender boy who's assigned female at birth, it's being given to facilitate sex transition. And that, of course, says is a different treatment. Now, they analogize to something like, you know, different off-label uses. So that something might be approved as a treatment for hypertension, and people discover, hey, this also can cure baldness. Normally, if a drug is approved for one purpose. It can be prescribed off-label, but states can forbid certain off-label uses if they think the risks and benefits are different. So that's the analogy that the majority draws. The difficulty with that, as I think Justice St.

26:31Amartes convincingly says in dissent is, well, here, what makes this a different treatment is simply the sex assigned at birth of the person taking it, and you're sort of gilding the lily or double counting by working that in. On Monday, the court ordered federal appeals courts in four states to reexamine their rulings in favor of transgender people in clashes over health care and birth certificates in light of the Scrimetti decision. Can we read anything into that? Oh, yes. So I was trying to be a little bit hopeful there to say that, you know, as a matter of the official holdings, the court has not foreclosed the possibility that sometime in the future it could say transgender status discrimination is sort of presumptively invalid in the same way that sex discrimination is.

27:20But reading the tea leaves, I think it's pretty clear that that's not the direction that this court is going. And another way to put that is that they are going to increasingly treat the Bostock decision, the case that held that sexual orientation and transgender status discrimination were sex discrimination for purposes of Title VII, they're going to treat that decision as a kind of outlier, the case that gets distinguished. And they specifically say in Scrimetti, well, we're not addressing this Bostock analogy. Title VII might be different. So I think they're teeing that up and sort of cutting back.

27:55You know, the anti-trans backlash that we've been seeing in the political realm, I think, is now flowering in the Supreme Court as well. And LGBTQ rights may be further curbed next term because on Thursday, the court agreed to decide whether states can ban transgender girls and women from competing for their schools on female athletic teams. Coming up next on the Bloomberg Law Show, I'll continue this analysis of the just completed term with Cornell Law professor Michael Dorff. How far to the right has the conservative supermajority moved the court? I'm June Grosso and you're listening to Bloomberg.