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Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.

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Speaker 2: President Trump has made something of a habit of suing

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Speaker 2: the media for defamation. This time, Trump is filing a

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Speaker 2: ten billion dollar defamation lawsuit against the Wall Street Journal

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Speaker 2: over July seventeenth story that described a sexually suggestive letter

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Speaker 2: that the newspaper says bore Trump's name and was included

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Speaker 2: in a two thousand and three album compiled for Jeffrey

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Speaker 2: Epstein's fiftieth birthday. The suit accuses the Wall Street Journal

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Speaker 2: and its reporters of having knowingly and recklessly published numerous false, defamatory,

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Speaker 2: and disparaging statements, which it says caused overwhelming financial and

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Speaker 2: reputational harm to the president. A spokesman for the journal said,

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Speaker 2: we have full confidence in the rigor and accuracy of

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Speaker 2: our reporting and will vigorously defend against any lawsuit joining me.

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Speaker 2: Is Defamation attorney Jeff Lewis. Jeff broadly described Trump's lawsuit well.

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Speaker 1: It brought two claims, one for deformation per se, one

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Speaker 1: for deformation per quad, saying the Wall Street Journal never

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Speaker 1: should have published a story alleging that this note was

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Speaker 1: shared this birthday. Greeting and drawing was shared with Epstein.

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Speaker 1: That's the gist of the lawsuit. It's not a serious lawsuit.

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Speaker 1: I have to tell you.

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Speaker 2: Why do you think it's not a serious lawsuit?

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Speaker 1: Well, first of all, where it was filed. You know,

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Speaker 1: serious defamation lawyers will file in a state, will choose

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Speaker 1: a state whether there's no antislap law or we canti

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Speaker 1: slap law to avoid an early embarrassing lass. And here

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Speaker 1: these folks filed in Florida rather than Delaware. Most people

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Speaker 1: who are serious about proceeding with the defamation case, if

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Speaker 1: they have a chance to file in the Delaware will

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Speaker 1: they chose not to file.

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Speaker 2: That.

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Speaker 1: That's one. And the second thing that tells me it's

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Speaker 1: not a serious lawsuit is Florida's got a law that says, hey,

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Speaker 1: before you sue anyone for defamation, you've got to give

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Speaker 1: a five day notice, meaning after the publication, you give

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Speaker 1: five day notice to the newspaper or TV show, Hey

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Speaker 1: we're going to sue you, and give the chance for

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Speaker 1: the newspaper or the TV show to do a retraction.

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Speaker 1: Then comply with that statute, and that's mandatory. Case could

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Speaker 1: be dismissed. Cases have been dismissed based on that statue.

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Speaker 2: You just explain what the anti slap law is.

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Speaker 1: Well, California has a very robust anti slap law. Florida

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Speaker 1: has a pretty robust anti slap law. What it does

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Speaker 1: is it allows litigains to cut the line. Instead of

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Speaker 1: waiting four or five years, instead of spending hundreds of

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Speaker 1: thousand dollars to resolve their case, they get to cut

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Speaker 1: the line and within the first few months of the case,

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Speaker 1: without any discovery, get in front of a judge, put

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Speaker 1: all their evidence on the table and say, hey, this

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Speaker 1: is a frivolous case and should be dismissed at the outset.

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Speaker 1: And if they win, the defendant gets awarded attorney's fees

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Speaker 1: paid by the plaintiffs. Here Wall Street Journal's attorneys fees,

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Speaker 1: which will be in the six figures, will be paid

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Speaker 1: by President Trump.

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Speaker 2: I mean, is this Wall Street Journal article about this

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Speaker 2: sexually suggestive letter even defamatory?

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Speaker 1: You know, a classic defamation lawsuit will consist of a

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Speaker 1: false fact that some but he said something that was false,

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Speaker 1: And here you don't really have a falsity. An experienced

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Speaker 1: litigator would have probably pled a false light claim, which

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Speaker 1: is related to defamation, which pertrees somebody, maybe not with

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Speaker 1: a false fact, but in the negative light saying hey,

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Speaker 1: you're a known associate of a child predator. That's the

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Speaker 1: stronger claim. I'm surprised they didn't pleaded it.

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Speaker 2: Trump would have to prove, I mean, first of all,

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Speaker 2: that the Wall Street Journal was lying. If they can

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Speaker 2: just produce the letter or evidence of the letter, then

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Speaker 2: the suit's over.

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Speaker 1: Well, I don't know about the suit being over, but

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Speaker 1: I will say this truth is a defense in any case,

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Speaker 1: and in a case involving a high profile plaintiff like

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Speaker 1: the president, it is a defense to say that the

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Speaker 1: defendant or the newspaper did not act with actual malice,

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Speaker 1: I meaning they had good cause to believe what their

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Speaker 1: writing is true. And so if they have the letter,

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Speaker 1: or a photo of a letter, or of a credible

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Speaker 1: witness account of the letter, those would all help the

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Speaker 1: Wall Street Journal meet the standard of hey, we didn't

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Speaker 1: publish this with an actual maulage.

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Speaker 2: The lawsuit claims that Trump suffered overwhelming financial and reputational harm,

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Speaker 2: but one jury found Trump libel of sexual assault, and

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Speaker 2: another jury found him guilty of felonies of falsifying business

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Speaker 2: records to cover up a hush money payment to a

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Speaker 2: porn star, and despite that, he was still reelected. So

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Speaker 2: would he suffer further reputational harm from this article.

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Speaker 1: No, I have to tell you, if I were defending

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Speaker 1: the Wall Street Journal, I would invoke a little known

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Speaker 1: and little used doctrine known as the lible proof doctrine,

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Speaker 1: saying there's certain people in our community, certain people in

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Speaker 1: our national politics. His reputations are so terrible, of course,

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Speaker 1: have been so damaged that a negative article in the

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Speaker 1: press does little to no damage. And they shouldn't be

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Speaker 1: allowed to come to the courtroom and recover damages because

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Speaker 1: they are so notorious. And I think Trump FETs the bill.

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Speaker 2: The danger of this for Trump is that the Wall

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Speaker 2: Street Journal can seek broad discovery and can depose him

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Speaker 2: and question about it relationship with Epstein.

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Speaker 1: Right, You're absolutely right. The discovery that can be obtained,

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Speaker 1: the sunlight that could be put on this issue is

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Speaker 1: so much broader than what Congress can do right now.

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Speaker 1: Assuming Congress had the willpower to do something in civil discovery,

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Speaker 1: one could take the I don't know the deposition of

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Speaker 1: a prisoner, the former girlfriend of Epstein, and see what

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Speaker 1: she has to say. Either in deposition or at trial,

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Speaker 1: you could send subpoenas out to third parties and so

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Speaker 1: what they might know about this book and these notes.

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Speaker 1: The scope of discovery is very broad.

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Speaker 2: I assume that the Wall Street Journal is going to

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Speaker 2: make a motion to dismiss pretty quickly. Do you think

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Speaker 2: they can get the suit dismissed at an early stage?

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Speaker 1: I do. I expect them to bring an anti slap

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Speaker 1: motion to dismiss, invoking Florida's anti slap law, and I

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Speaker 1: expect them to argue there was no compliance with this

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Speaker 1: five day rule, there's no proof of actual malice, and

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Speaker 1: there's no damages because he's a liable proof defendant, and.

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Speaker 2: Could there be a settlement? What kind of factors would

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Speaker 2: be considered.

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Speaker 1: Equently in defamation litigation, people will look at the odds

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Speaker 1: of recovering any kind of damages the plane offf and

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Speaker 1: the defendants look at the cost of defending the case,

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Speaker 1: and they compare that to what a possible settlement might

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Speaker 1: be reached, and oftentimes, nine times out of ten cases

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Speaker 1: settle because the cost of defending the case and the

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Speaker 1: risks of going forward are just too great. Even if

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Speaker 1: you feel like you're on the right side of the story.

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Speaker 1: I fully expect this case will settle at some point,

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Speaker 1: but the question is will there be few rounds in court,

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Speaker 1: like a big anti slat motion before there's a settlement.

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Speaker 2: I mean, Trump is known for these defamation suits against

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Speaker 2: the media. He brought cases against CNN, the New York Times,

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Speaker 2: and the Washington Post, and judges dismissed those. But recently,

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Speaker 2: in his defamation lawsuit against ABC and another one against CBS,

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Speaker 2: they settled in pretty quickly. Is it just bad business

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Speaker 2: to be suing the president, especially if you need approval

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Speaker 2: for a merger.

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Speaker 1: Let me say this what really bothered people about CBS

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Speaker 1: settlement is the violation of norms. President Trump is great

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Speaker 1: at violating norms. What we see are traditional rules of

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Speaker 1: fair play in terms of court proceedings and that kind

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Speaker 1: of thing. So you don't typically see someone who occupies

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Speaker 1: the White House wielding their power because of coverage they

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Speaker 1: don't like, either unflattering coverage of somebody or in this case,

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Speaker 1: I believe it was, they tried to make Kamala Harris

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Speaker 1: overly positive. They gave her flattering edits and that is

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Speaker 1: not a loss that you typically see. And to see

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Speaker 1: a big entity pay a huge sum of money to

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Speaker 1: settle at a time when their merger or sale was

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Speaker 1: under potential federal review. It left a lot of people unsettled.

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Speaker 1: And the difference is the spine of the corporate defendants

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Speaker 1: and their willingness to put up with out of court pressures.

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Speaker 1: I mean, keep in mind, there's calls right now that

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Speaker 1: cancel Wall Street Journal subscriptions. There's gonna be tremendous pressure

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Speaker 1: put on Wall Street Journal by President frump space, and

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Speaker 1: so the question will be Little Street Journal a spawn

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Speaker 1: and stand up to this or wull they succumb to

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Speaker 1: that out of court pressure.

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Speaker 2: Trump has wanted to get rid of the actual malice

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Speaker 2: standard in the New York Times v. Sullivan case, which

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Speaker 2: makes it harder for public figures to win libel and

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Speaker 2: defamation lawsuits against the media. Do you think this lawsuit

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Speaker 2: is part of that?

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Speaker 1: I do know that he and other kids sort of

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Speaker 1: want to get the actual malice standard taken out of

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Speaker 1: defamation lawsuits so that plainteffs no longer have that big hurdle.

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Speaker 1: I don't think this is a particularly good case to

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Speaker 1: do that, because the facts are so bad, meaning they

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Speaker 1: are not great facts in favor of us suggesting the

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Speaker 1: Wall Street Journal acted with actual mouse. Oftentimes, when you're

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Speaker 1: looking to take a test case up to the Supreme Court,

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Speaker 1: you want facts that portray the plaintiff in a positive light.

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Speaker 1: And so maybe I might President Trump's goal, but I

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Speaker 1: can't imagine legal advisors see it either as a serious

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Speaker 1: lawsuit or a serious vehicle return the long running actual

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Speaker 1: malice standard.

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Speaker 2: And what's the danger of getting rid of the actual

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Speaker 2: malice standard.

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Speaker 1: Well, there'll be a chilling effect on people willing to

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Speaker 1: gather news. There'll be a chilling effect on people like

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Speaker 1: me willing to speak to reporters, because if you think

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Speaker 1: you're going to be sued and you don't have the

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Speaker 1: protection of the actual mouse standard, it is easier for

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Speaker 1: a planet to survive quick motions, like quick anti slap

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Speaker 1: motions to dismiss. Especially in states about half the states

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Speaker 1: in the United States don't have antislap laws. You're going

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Speaker 1: to find reporters unwilling to report, and participants witnesses less

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Speaker 1: willing to speak to reporters. If it's an edgy story,

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Speaker 1: if it's a story where there's any question that the

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Speaker 1: target of the story might bring a lawsuit, Is this

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Speaker 1: just a.

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Speaker 2: Run of the male defamation lawsuit or is there anything

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Speaker 2: unique about it?

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Speaker 1: It's super interesting in a case like this to allege

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Speaker 1: both defamation per se and defamation per quad. Deformation per

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Speaker 1: se means I don't have to prove any damage, as

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Speaker 1: you the jury should just pick a number. Because the

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Speaker 1: things that were said were so awful, so qua criminal,

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Speaker 1: or so terrible to my reputation, I don't have the

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Speaker 1: burden of proving damages. But he also pled defamation per quad,

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Speaker 1: which says, as a result of the thing we're said

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Speaker 1: by a Wall Street journal, I president Trump suffered actual damages. Boy,

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Speaker 1: if I'm the lawyers for a Wall Street journal, I

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Speaker 1: could have a field day exploring comment. Imagine going through

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Speaker 1: President Trump's finances, his communications, everything having to do with

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Speaker 1: this story, his reputation before the story, and his reputation

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Speaker 1: after the story. I mean, he opened the door to

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Speaker 1: broad discovery by saying he suffered actual damages.

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Speaker 2: Well, they may not even get to discovery in this case.

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Speaker 2: It could be dismissed. Well before that, Thanks so much, Jeff.

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Speaker 2: That's defamation attorney Jeff Lewis coming up next on The

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Speaker 2: Bloomberg Law Show. Harvard University is challenging the legality of

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Speaker 2: the Trump administration's termination of two point six billion dollars

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Speaker 2: in federal research funding over alleged institutional failing you're listening

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Speaker 2: to Bloomberg. President Trump has repeatedly complained about perceived wokeness

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Speaker 2: at universities and colleges, and in the Trump administration's campaign

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Speaker 2: to pressure elite US colleges to make a wide range

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Speaker 2: of policy changes, it's come down hardest on Harvard University,

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Speaker 2: the country's oldest and richest university. Among the actions the

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Speaker 2: administration has taken is terminating more than two billion dollars

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Speaker 2: in federal research funding to Harvard over alleged institutional failures,

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Speaker 2: including anti semitism on campus. Harvard has responded with a lawsuit,

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Speaker 2: and yesterday at a hearing, Boston federal judge Allison Burrows

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Speaker 2: raised questions about the constitutionality of the government's decision to

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Speaker 2: slash the funding and call some of their arguments in

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Speaker 2: defense of the move mind boggling. My guest is Jody Ferice,

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Speaker 2: a lawyer who specializes in higher education. She's a partner

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Speaker 2: at Church, Church, Hittle and Antrim. Jody. The Trump administration

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Speaker 2: said it was freezing Harvard's funding because it violated Titles

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Speaker 2: seven of the Civil Rights Act by failing to address

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Speaker 2: anti semitism on campus. Tell us more about the Trump

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Speaker 2: administration's position here.

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Speaker 3: So it's interesting when you talk about the argument that

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Speaker 3: the Trump administration has been making, they've they've actually kind

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Speaker 3: of shifted a time or two in their argument. I

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Speaker 3: think Harvard's been pretty steady. Harvard's argument has been throughout,

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Speaker 3: you're violating her rights of free speech. You've done it

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Speaker 3: with no due process whatsoever, and you can't do that.

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Speaker 3: You can't do that. You didn't give us any notice,

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Speaker 3: you didn't follow administrative procedures Act, you didn't give us

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Speaker 3: any opportunity to cure what you said was wrong. You

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Speaker 3: can't do that. So Harvard's been pretty steady. But the

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Speaker 3: Trump administration has tried a couple of different things. Right,

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Speaker 3: They've said, you know, we are revoking all these federal funds,

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Speaker 3: and we're going to prohibit the issuance of any new

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Speaker 3: federal funds because you have violated civil rights law and

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Speaker 3: you've engaged in, or allowed, or even fostered this rampant

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Speaker 3: anti semitism. Then, once this action was filed, they've said, hey,

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Speaker 3: this is a contract matter. This is just a contract matter, Harvard.

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Speaker 3: You should have read the fine print, you know, you

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Speaker 3: should have looked at the fine print that said that

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Speaker 3: we could revoke your funding if we had a shift

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Speaker 3: in our administrative priorities. They've also said you've chosen the

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Speaker 3: wrong court. This should be, you know, in a different forum.

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Speaker 3: And you know, I think that that is a that's

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Speaker 3: a pretty lay in effort. But they've they've kind of

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Speaker 3: shifted a little bit, right, And I think that yesterday,

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Speaker 3: what you heard in the hearing was that was them saying,

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Speaker 3: you know what, we can do this. We can allocate

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Speaker 3: funds where we think matches up with presidential priorities and

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Speaker 3: administrative priorities, and these aren't our priorities right now. That

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Speaker 3: to me is a bunker's argument when you think that

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Speaker 3: they have just revoked funding that would go to things

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Speaker 3: like cancer research and als research, and research that has

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Speaker 3: to do with preventing suicide in veterans and risk factors

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Speaker 3: in childbirth. These are not controversial. If those things aren't

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Speaker 3: within your administrative priorities, then shame on you, really, But

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Speaker 3: that was one of the arguments that the government has

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Speaker 3: made is these research brands they no longer in fall

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Speaker 3: in line with our administrative priorities because they are being

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Speaker 3: given to an institution that engages in anti semitism and

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Speaker 3: we get to choose.

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Speaker 2: Are these grants like a contract that the government says

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Speaker 2: they can just walk away from.

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Speaker 3: They are saying that, and they're not in entirely wrong.

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Speaker 3: So federal grants always come with a contract, and we

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Speaker 3: know that because there are terms that come along with

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Speaker 3: every grant really from any organization or entity or government,

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Speaker 3: whether it's federal or not. And they will say things

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Speaker 3: like you have to engage in human research protection. Right,

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Speaker 3: that's a term of your grant. You have to do that.

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Speaker 3: You can't lie about what your grant funds are going

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Speaker 3: to be used for, you can't fudge your data, you

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Speaker 3: can't you know, make things up, or you can't make

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Speaker 3: up something for purposes of your application to induce us

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Speaker 3: to give it to you. So those kinds of things

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Speaker 3: are always built into to essentially any grant funding that

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Speaker 3: comes pretty much from anywhere, and those are important rights

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Speaker 3: to ensure things like human resource protections. They're saying, that's

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Speaker 3: sort of implicit in every one of these contracts, and

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Speaker 3: they really are. Grants are a contract. They're saying implicit

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Speaker 3: in that is, if we decide unilaterally, with no opportunity

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Speaker 3: for you to be heard on the matter or to

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Speaker 3: respond or even to ku a defect, if we decide

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Speaker 3: unilaterally that you've done something way over here that has

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Speaker 3: nothing to do with this grant, we can still take

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Speaker 3: it away. And that's the part that's incorrect. But people

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Speaker 3: do lose grant funding for things directly related to the

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Speaker 3: grant itself, you know, And that's important because those are

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Speaker 3: those are important terms for the protection and stewardship of

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Speaker 3: the fund.

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Speaker 2: The judge pushed back on the administration's claims that the

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Speaker 2: funding cuts were justified by Harvard's failure to tackle anti semitism,

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Speaker 2: asking about the relationship between cancer research and combating anti semitism.

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Speaker 3: You know, it was pretty obvious from some of the

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Speaker 3: judges comments that she didn't see how cutting off grant

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Speaker 3: funding for cancer research and als research and research on

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Speaker 3: biological threats and food insecurity and risk factors and childbirth,

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Speaker 3: how any of that stood to make anti semitism go

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Speaker 3: away or had any correlation to it in the first place.

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Speaker 3: Because the government has made no argument that these grants

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Speaker 3: or this research is in any way fostering anti semitism,

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Speaker 3: more that anti Symitism has been rampant among those doing

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Speaker 3: this research. They haven't made that correlation, and she pointed

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Speaker 3: that out yesterday during the hearings to try and prompt

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Speaker 3: them to make that link. They did not attempt to

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Speaker 3: do that. They simply said, whenever we give Harvard research funds,

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Speaker 3: those are funds that aren't going somewhere else. Their argument

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Speaker 3: seemed to be, we have a finite amount of funds,

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Speaker 3: we give them to this anti Semitic institution, then it's

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Speaker 3: hurting other institutions that are better suited to have them

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Speaker 3: because they do more to protect Jewish faculty and students.

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Speaker 3: I don't think the judge bought that argument.

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Speaker 2: So you mentioned that one of Harvard's main claims is

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Speaker 2: that the administration violated the Administrative Procedures Act, and that's

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Speaker 2: a pretty common claim in these suits against the administration.

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Speaker 2: So explain a little bit more what they should have

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Speaker 2: done here.

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Speaker 3: So, under the Administrative Procedures Act, you can make changes,

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Speaker 3: an agency can make changes, or they can issue sanctions

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Speaker 3: for things, but there's a process that they have to

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Speaker 3: go through to do that, and there's a there's a

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Speaker 3: notice the recipient you would be entitled to, and then

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Speaker 3: there's a process by which they get to answer. So

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Speaker 3: it's kind of akin to what you would see in

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Speaker 3: a civil action. But if an agency wants to make

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Speaker 3: some big change like this, you know, we're going to

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Speaker 3: cancel all your grant funding that we've already agreed to

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Speaker 3: give you, you would be required to have an agency proceeding, right,

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Speaker 3: some kind of an agency process where you're going to

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Speaker 3: level the charges against the organization, and then you know

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Speaker 3: they can they can issue a sanction, and you know

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Speaker 3: a sanction might be revoking grant funding. But in order

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Speaker 3: to do that, they need to go through the process

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Speaker 3: of adjudicating that and that they did not do. And

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Speaker 3: so under the Administrative Procedures Act, when they do that,

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Speaker 3: the agency is required to give an opportunity for Harvard

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Speaker 3: in this instance or the responding organization to review what

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Speaker 3: the facts are, what's the argument against us, what's the

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Speaker 3: extent of the sanction or the penalty that we are

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Speaker 3: going to be subjected to, and then you give them

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Speaker 3: notice in an opportunity to respond to that. So in

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Speaker 3: that way, it's you know, it's kind of just like

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Speaker 3: a civil action where you must give someone an opportunity

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Speaker 3: to address, to answer what's been charged against them. The

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Speaker 3: Trump administration seems to be saying, yeah, not here, right,

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Speaker 3: we understand there is an Administrative Procedures Act, but not here.

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Speaker 3: We are able to do this unilaterally. And I think

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Speaker 3: that's why in this instance the case was brought. You know,

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Speaker 3: it's kind of a bold move, but it was brought

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Speaker 3: for some rejudgment, which is both parties saying to the

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Speaker 3: court there's not really any issue of material fact here.

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Speaker 3: There's no material fact something that we disagree on. This

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Speaker 3: can be determined as a matter of law. And Harvard's saying,

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Speaker 3: as a matter of law, you got to give us.

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Speaker 3: You can't take an agency action like this without some

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Speaker 3: kind of an adjudication, some kind of notice, some kind

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Speaker 3: of process, some kind of opportunity to respond. And the

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Speaker 3: Trump administration is saying, in this instance, we don't have

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Speaker 3: to do that. We get to unilaterally revoke these things

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Speaker 3: and decide where our dollars go. It's just good stewardship,

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Speaker 3: according to them.

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Speaker 2: So is there not going to be any fact finding

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Speaker 2: about whether or not Harvard has, you know, work to

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Speaker 2: combat anti Semitism.

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Speaker 3: So that's the interesting thing, you know, the two and

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Speaker 3: a half hours yesterday that was that on at least

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Speaker 3: on the law part of this. The determination when it

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Speaker 3: comes back from Judge Burrows, it's either going to be

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Speaker 3: I'm granting summary judgments and I am saying, as a

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Speaker 3: matter of law, the government did not follow procedures that

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Speaker 3: they needed to follow in order to level this kind

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Speaker 3: of a sanction or take this kind of an agency action,

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Speaker 3: so that action was unlawful. You have to release those funds. Now.

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Speaker 3: If that happens, and there's a pretty good chance it will,

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Speaker 3: the appeal will be Swiss. In fact, I'm sure to

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Speaker 3: the depth of my soul that that appeal has already

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Speaker 3: been drafted because I think the Trump administration feels, and

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Speaker 3: I'm basing this on some of the true social language.

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Speaker 3: I think they probably assume that they're going to lose

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Speaker 3: at the federal court level, and so I think we

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Speaker 3: will immediately see that. However, to your question, there is

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Speaker 3: a time and a place where you might see that.

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Speaker 3: You might say, if the government decided, and they won't,

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Speaker 3: but if they decided to agree, Okay, all right, if

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Speaker 3: you want to do it that way, we will go

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Speaker 3: ahead and prove that these facts are true and these

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Speaker 3: facts make you inappropriate, and you know they could follow that.

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Speaker 3: So there is still a place where the actual fact

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Speaker 3: finding about the substantive issues the anti Semitism itself could

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Speaker 3: come out. The other place that it could become an issue, though,

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Speaker 3: is remember that here we're talking about the termination of

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Speaker 3: grant funds that were already in place. But I think

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Speaker 3: what we're probably going to see is that even if

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Speaker 3: the Trump administration loses on the issue of the funds

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Speaker 3: that have already been agreed to, right, the funds that

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Speaker 3: have already been granted and have been kind of paused,

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Speaker 3: even if they had to do that, I think they

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Speaker 3: will not be done. I don't think this will be

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Speaker 3: but a speed bump to them, because they can still

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Speaker 3: cut off future grant funding. They can still attempt other

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Speaker 3: end runs that they've already signaled they will do things

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Speaker 3: like taking away tax exempt status, things like trying to

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Speaker 3: interfere with accreditation, and so I don't think that regardless

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Speaker 3: of what happens, we will be done with this, and

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Speaker 3: there will be places all along the way where Harvard

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Speaker 3: may be called upon to defend itself in terms of

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Speaker 3: what it's doing to cure anti Semitism, to remedy things

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Speaker 3: that they acknowledge could be better. Things that they acknowledge

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Speaker 3: have maybe gone wrong. But you got to give them

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Speaker 3: a chance to answer for that at some point, and

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Speaker 3: you got to pay attention to what they're trying to

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Speaker 3: do to make it better. You can't just destroy the

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Speaker 3: place for past grievances.

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Speaker 2: Coming up next, what other colleges are watching in this litigation?

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Speaker 2: This is Bloomberg. Harvard University appeared in federal court on

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Speaker 2: Monday in a pivotal case in its battle with the

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Speaker 2: Trump administration, as the nation's oldest university, argued the government

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Speaker 2: illegally cut two point six billion dollars in federal funding.

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Speaker 2: A lawyer for the government said the Trump administration has

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Speaker 2: authority to cancel the grants after concluding the funding did

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Speaker 2: not align with its priorities, namely Trump's executive Order combating

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Speaker 2: Anti Semitism. I've been talking to attorney Jody Ferese, who

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Speaker 2: specializes in higher education and represents colleges and universities. Jody

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Speaker 2: tell us a little bit about Harvard's complaint that the

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Speaker 2: government is violating the First Amendment.

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Speaker 3: Part of Harvard's argument is that the government is violating

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Speaker 3: their First Amendment. And that's because the initial letter, the

436
00:24:49,000 --> 00:24:52,560
Speaker 3: demand letter that was sent from the government to Harvard,

437
00:24:53,040 --> 00:24:55,880
Speaker 3: had all kinds of things in it that would tend

438
00:24:55,920 --> 00:24:59,399
Speaker 3: to stifle certain kinds of speech or would pose a

439
00:24:59,440 --> 00:25:03,000
Speaker 3: real threat. So let me give you a couple of examples. So,

440
00:25:03,160 --> 00:25:06,879
Speaker 3: for example, they wanted to see employment, all kinds of

441
00:25:07,520 --> 00:25:12,440
Speaker 3: records related to how you go about hiring, how you,

442
00:25:12,600 --> 00:25:17,200
Speaker 3: Harvard do your hiring, and are you engaging in illegal

443
00:25:17,320 --> 00:25:20,679
Speaker 3: discrimination in the practice of hiring. So we want to

444
00:25:20,720 --> 00:25:24,560
Speaker 3: see all the files and all the notes and all

445
00:25:24,640 --> 00:25:27,760
Speaker 3: the grids that were made in the process of hiring.

446
00:25:28,240 --> 00:25:31,399
Speaker 3: You can't do that. Similarly, with admissions, we want to

447
00:25:31,440 --> 00:25:33,760
Speaker 3: see all the admissions files. We want to see who

448
00:25:33,800 --> 00:25:35,639
Speaker 3: got in, we want to see who didn't get in.

449
00:25:35,720 --> 00:25:38,480
Speaker 3: We want to see how you made those decisions. That

450
00:25:38,560 --> 00:25:41,760
Speaker 3: was another example. Another one was a really scary one,

451
00:25:41,840 --> 00:25:47,280
Speaker 3: was we want you to hire an outside firm to

452
00:25:47,720 --> 00:25:50,840
Speaker 3: with our approval, and then we want them to go

453
00:25:50,920 --> 00:25:54,080
Speaker 3: in and get into the teaching and the curriculum and

454
00:25:54,119 --> 00:25:57,200
Speaker 3: the pedagogy, and then we want them to point out,

455
00:25:57,280 --> 00:26:00,600
Speaker 3: we want you to give us the names of any

456
00:26:01,240 --> 00:26:05,280
Speaker 3: faculty who have been engaging in anti semitism. We want

457
00:26:05,320 --> 00:26:10,639
Speaker 3: their names. Those things are all invasions of a private

458
00:26:10,760 --> 00:26:13,280
Speaker 3: rite of free speech that you have to be as

459
00:26:13,320 --> 00:26:18,840
Speaker 3: an institution free from interference from government actors. There was

460
00:26:19,200 --> 00:26:24,159
Speaker 3: no way that Harvard could have accepted the demands of

461
00:26:24,200 --> 00:26:27,600
Speaker 3: that letter without having completely turned over control of that

462
00:26:27,720 --> 00:26:32,840
Speaker 3: institution to the Trump administration. They wanted every last conduct

463
00:26:32,960 --> 00:26:36,960
Speaker 3: report of every international student on that campus of any kind,

464
00:26:37,200 --> 00:26:41,000
Speaker 3: any kind. Cheated on a test, smoked in a dorm,

465
00:26:41,160 --> 00:26:45,239
Speaker 3: doesn't matter, every single And so when they say first men,

466
00:26:45,440 --> 00:26:48,720
Speaker 3: it was a lot of that. You have attempted to

467
00:26:48,880 --> 00:26:52,760
Speaker 3: chill every form of speech from our our processes, from

468
00:26:52,800 --> 00:26:56,119
Speaker 3: admission to hiring, to having international students to what we

469
00:26:56,240 --> 00:26:58,719
Speaker 3: teach in our classrooms. And you're going to do that

470
00:26:58,840 --> 00:27:01,280
Speaker 3: by coming in and just take control of everything we

471
00:27:01,359 --> 00:27:02,400
Speaker 3: do on this campus.

472
00:27:02,600 --> 00:27:04,920
Speaker 2: I don't know if they're still negotiating. Is there room

473
00:27:05,040 --> 00:27:06,119
Speaker 2: for settlement here?

474
00:27:06,640 --> 00:27:10,800
Speaker 3: So it's interesting the Trump administration has framed this as

475
00:27:10,840 --> 00:27:14,240
Speaker 3: though Harvard had all the incentive in the world to

476
00:27:14,520 --> 00:27:18,040
Speaker 3: want to settle this, And you know, I don't know

477
00:27:18,080 --> 00:27:21,159
Speaker 3: if I can see it that way. No one was

478
00:27:21,160 --> 00:27:25,239
Speaker 3: ever privy, not really, because you know, I think that

479
00:27:25,560 --> 00:27:31,560
Speaker 3: the Trump administration has invested so much time and energy

480
00:27:31,600 --> 00:27:36,480
Speaker 3: and pressed national attention on this, and I don't think

481
00:27:36,520 --> 00:27:39,200
Speaker 3: they're going to win. You know, I think that who

482
00:27:39,320 --> 00:27:42,160
Speaker 3: has a lot of incentive to negotiate is often who

483
00:27:42,480 --> 00:27:47,040
Speaker 3: stands the biggest chance of losing. In this instance, it's

484
00:27:47,200 --> 00:27:51,880
Speaker 3: it's an exhausting battle for Harvard. It's costing a fortune,

485
00:27:52,359 --> 00:27:56,080
Speaker 3: it's taking time and energy away from things that it

486
00:27:56,160 --> 00:27:58,760
Speaker 3: would be much better uses of time and energy. But

487
00:27:59,680 --> 00:28:02,199
Speaker 3: in the I don't think Harvard's going to lose, at

488
00:28:02,240 --> 00:28:05,280
Speaker 3: least not at this level and probably not the next one.

489
00:28:05,560 --> 00:28:08,720
Speaker 3: But I don't know that they're continuing to negotiate. I

490
00:28:08,840 --> 00:28:11,119
Speaker 3: don't know that. I just feel like things seem to

491
00:28:11,119 --> 00:28:13,840
Speaker 3: have broken down because boy, they didn't seem very close

492
00:28:13,920 --> 00:28:17,080
Speaker 3: to a they didn't seem very close to a resolution yesterday.

493
00:28:17,119 --> 00:28:21,560
Speaker 3: They were as far apart as two entities could be yesterday.

494
00:28:21,880 --> 00:28:24,960
Speaker 2: And the government lawyer is Harvard educated too.

495
00:28:25,440 --> 00:28:26,560
Speaker 3: Yeah, it's ironic.

496
00:28:26,680 --> 00:28:31,080
Speaker 2: I know you understand that college's universities they're all watching

497
00:28:31,160 --> 00:28:34,959
Speaker 2: this case. Are they watching it to see whether to

498
00:28:35,000 --> 00:28:37,879
Speaker 2: stand up for the Trump administration or whether to settle

499
00:28:37,880 --> 00:28:41,120
Speaker 2: with the Trump administration. I mean, why are they watching this?

500
00:28:42,120 --> 00:28:44,800
Speaker 3: That is a that is a really interesting question. One

501
00:28:44,840 --> 00:28:47,680
Speaker 3: of the statements that the government attorney made yesterday was

502
00:28:47,760 --> 00:28:50,640
Speaker 3: we are not anti Harvard. And I think you know,

503
00:28:50,800 --> 00:28:53,720
Speaker 3: that attorney was kind of carefully picked because they went

504
00:28:53,760 --> 00:28:56,400
Speaker 3: to Harvard, and so they made this statement yesterday that

505
00:28:56,400 --> 00:29:00,760
Speaker 3: we're not anti Harvard. And in an interesting way, I

506
00:29:00,760 --> 00:29:04,200
Speaker 3: think that's probably true because I don't believe this fight

507
00:29:04,360 --> 00:29:07,440
Speaker 3: to be about Harvard. I believe this fight to be

508
00:29:07,480 --> 00:29:11,440
Speaker 3: about higher education the sector as a whole. And I

509
00:29:11,440 --> 00:29:14,640
Speaker 3: think most people in my industry recognize it as such.

510
00:29:14,800 --> 00:29:19,040
Speaker 3: I think they recognize that Harvard is just a big,

511
00:29:19,720 --> 00:29:27,160
Speaker 3: unsympathetic example, a big unsympathetic flex of power. But as

512
00:29:27,200 --> 00:29:31,640
Speaker 3: I talk to clients, we represent clients from coast to

513
00:29:31,680 --> 00:29:35,280
Speaker 3: coast and north to south, and as you talk to them,

514
00:29:35,960 --> 00:29:40,120
Speaker 3: they are watching and listening, but not their day to

515
00:29:40,200 --> 00:29:45,520
Speaker 3: day life is going on because they have fatigue, you know,

516
00:29:45,560 --> 00:29:48,440
Speaker 3: they have issue fatigue. We just have to keep doing

517
00:29:48,520 --> 00:29:51,120
Speaker 3: this important work we're doing. We have to keep pursuing

518
00:29:51,160 --> 00:29:54,720
Speaker 3: our mission. But what they're watching for in the end

519
00:29:55,000 --> 00:29:58,040
Speaker 3: is not going to be whether we should stand up

520
00:29:58,080 --> 00:30:01,800
Speaker 3: to the administration. It's how much danger are we in

521
00:30:02,320 --> 00:30:05,200
Speaker 3: if we end up on their radar? How much do

522
00:30:05,240 --> 00:30:09,200
Speaker 3: we stand to lose? Is this an existential crisis? And

523
00:30:09,240 --> 00:30:12,440
Speaker 3: so I don't think that they spend all day every

524
00:30:12,520 --> 00:30:17,360
Speaker 3: day clutching their pearls and twisting their kleenex over it.

525
00:30:17,440 --> 00:30:19,280
Speaker 3: I don't think they have time to do that. They

526
00:30:19,320 --> 00:30:21,800
Speaker 3: have really important work that they're doing. But in the end,

527
00:30:21,840 --> 00:30:26,160
Speaker 3: they recognize that if this issue comes back, that you

528
00:30:26,200 --> 00:30:30,560
Speaker 3: can lose federal money with no due process, no explanation,

529
00:30:30,960 --> 00:30:35,120
Speaker 3: no ability to defend yourself, then they may have to

530
00:30:35,160 --> 00:30:38,440
Speaker 3: be really careful about the things that they do, very

531
00:30:38,480 --> 00:30:42,240
Speaker 3: careful about not getting on anyone's radar. So ultimately it

532
00:30:42,280 --> 00:30:45,520
Speaker 3: will change them things. But most institutions don't have the

533
00:30:45,560 --> 00:30:48,920
Speaker 3: wherewithal to stand up to the administration the way that

534
00:30:48,960 --> 00:30:52,200
Speaker 3: Harvard is. It would put them out of business long

535
00:30:52,400 --> 00:30:55,200
Speaker 3: before the point that Harvard has already reached.

536
00:30:55,800 --> 00:31:00,000
Speaker 2: There's talk about Columbia possibly reaching a settlement with the government.

537
00:31:00,920 --> 00:31:04,840
Speaker 2: If a school like Columbia does settle, what kind of

538
00:31:04,840 --> 00:31:06,200
Speaker 2: a message does that send.

539
00:31:06,520 --> 00:31:10,440
Speaker 3: I think if Columbia reaches the settlement, that will be

540
00:31:10,720 --> 00:31:15,400
Speaker 3: a moving target. I don't know a single person who

541
00:31:15,440 --> 00:31:21,640
Speaker 3: thinks that even if Colombia conceded to the things that

542
00:31:22,960 --> 00:31:25,280
Speaker 3: have been asked of them, that that would be the

543
00:31:25,400 --> 00:31:28,920
Speaker 3: end of the issue. I just don't think so, because

544
00:31:29,080 --> 00:31:33,800
Speaker 3: until there is complete control of an institution, a private institution,

545
00:31:34,360 --> 00:31:37,720
Speaker 3: this administration isn't going to stop. This is about This

546
00:31:37,840 --> 00:31:40,560
Speaker 3: is not about the substantive issue. This is not about

547
00:31:40,600 --> 00:31:45,360
Speaker 3: anti semitism. It is not about reading the fine print

548
00:31:45,400 --> 00:31:49,600
Speaker 3: in your contracts. It is not about insidious forms of

549
00:31:49,720 --> 00:31:54,479
Speaker 3: discrimination that the administration is so concerned about. It is

550
00:31:54,560 --> 00:31:59,120
Speaker 3: not about, you know, good stewardship of federal dollars. This

551
00:31:59,280 --> 00:32:03,320
Speaker 3: is about proving that we have control and we can

552
00:32:03,440 --> 00:32:06,240
Speaker 3: get you to bend to our will. Until you do

553
00:32:06,440 --> 00:32:11,720
Speaker 3: what we have said is an administrative priority. Bullstop. So

554
00:32:11,880 --> 00:32:15,720
Speaker 3: I think that if Columbia reaches a you know, quote

555
00:32:15,800 --> 00:32:20,440
Speaker 3: unquote settlement, I think that most people will just wait

556
00:32:20,480 --> 00:32:23,479
Speaker 3: for the next thing that happens where the administration says, well,

557
00:32:23,640 --> 00:32:26,680
Speaker 3: you know, Colombia didn't adhere to the subtle what we reached.

558
00:32:26,760 --> 00:32:30,120
Speaker 3: Look we've you know, we've caught them in something else.

559
00:32:30,520 --> 00:32:33,400
Speaker 3: And I think that that's been Harvard's view is there's

560
00:32:33,600 --> 00:32:36,920
Speaker 3: very little path board by which we can agree to

561
00:32:37,040 --> 00:32:40,200
Speaker 3: even a fraction of the things you're asking here, or

562
00:32:40,240 --> 00:32:43,920
Speaker 3: we won't be Harvard anymore, will be an arm of

563
00:32:43,960 --> 00:32:47,800
Speaker 3: the government. That's not what private education is. And I think,

564
00:32:47,880 --> 00:32:50,920
Speaker 3: you know, I think it bears noting that people should

565
00:32:50,920 --> 00:32:54,520
Speaker 3: think really carefully about whether this is really what you want,

566
00:32:55,240 --> 00:32:59,080
Speaker 3: because if we are going to shift to the whim

567
00:32:59,360 --> 00:33:04,440
Speaker 3: of an administrations priorities, that's going to have to be

568
00:33:05,000 --> 00:33:07,320
Speaker 3: the way we do it, no matter what the priorities

569
00:33:07,320 --> 00:33:10,800
Speaker 3: of that administration are it might be in the future. Right, So,

570
00:33:11,480 --> 00:33:16,240
Speaker 3: are you prepared for the pendulum of time to shift

571
00:33:16,480 --> 00:33:20,120
Speaker 3: in a much more liberal administration to come in with

572
00:33:20,360 --> 00:33:25,080
Speaker 3: its set of priorities and its set of goals. Will

573
00:33:25,160 --> 00:33:29,120
Speaker 3: we still believe this is the right way to conduct ourselves.

574
00:33:29,400 --> 00:33:32,400
Speaker 3: Will we still believe we have these kind of rights

575
00:33:32,440 --> 00:33:37,200
Speaker 3: at the executive level when there is a completely different

576
00:33:37,360 --> 00:33:42,080
Speaker 3: administration in place? And I think if people really thought

577
00:33:42,120 --> 00:33:46,320
Speaker 3: that all the way through, some of them would recognize

578
00:33:47,120 --> 00:33:50,320
Speaker 3: that that's a very poor idea.

579
00:33:50,800 --> 00:33:53,840
Speaker 2: Thanks so much for joining me today, Jody. That's Higher

580
00:33:53,920 --> 00:33:57,120
Speaker 2: Education Attorney Jody Ferice. And that's it for this edition

581
00:33:57,160 --> 00:33:59,760
Speaker 2: of the Bloomberg Law Show. Remember you can always get

582
00:33:59,760 --> 00:34:02,960
Speaker 2: the lfeatest legal news on our Bloomberg Law podcasts. You

583
00:34:03,000 --> 00:34:07,120
Speaker 2: can find them on Apple Podcasts, Spotify, and at www

584
00:34:07,240 --> 00:34:11,520
Speaker 2: dot bloomberg dot com slash podcast slash Law, And remember

585
00:34:11,560 --> 00:34:14,520
Speaker 2: to tune into The Bloomberg Law Show every weeknight at

586
00:34:14,520 --> 00:34:18,000
Speaker 2: ten pm Wall Street Time. I'm June Grosso and you're

587
00:34:18,080 --> 00:34:19,320
Speaker 2: listening to Bloomberg