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Speaker 1: You're listening to Bloomberg Law with June Grosso from Bloomberg Radio.

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Speaker 1: In a significant escalation of his battle with the Fed,

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Speaker 1: President Trump is moving to fire Lisa Cook, the first

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Speaker 1: black woman to serve on the Federal Board of Governors.

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Speaker 1: In a letter posted on truth Social late Monday, Trump

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Speaker 1: said he had quote sufficient cause to fire Cook, citing

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Speaker 1: allegations that she submitted fraudulent information on mortgage applications, although

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Speaker 1: she's not been charged with a crime. He reiterated his

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Speaker 1: position in the Oval office today, it.

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Speaker 2: Seems to have had an infraction, and she can't have

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Speaker 2: an infraction, especially that infraction, because she's in charge of,

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Speaker 2: if you think about it, mortgages, and we need people

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Speaker 2: that are one hundred percent above board, and it doesn't

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Speaker 2: seem like she wish.

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Speaker 1: Cook says she won't step down. Her lawyer, Abby Lowell,

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Speaker 1: says they'll sue, and that Trump's attack to fire her,

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Speaker 1: based solely on a referral letter, lacks any factual or

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Speaker 1: legal basis. Joining me is constitutional law expert Harold Krent,

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Speaker 1: a professor at the Chicago Kent College of Law.

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Speaker 3: Can we assume that the.

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Speaker 1: President is giving in on one point that he needs

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Speaker 1: cause to fire Cook because he said and a letter

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Speaker 1: posted on truth Social that he had sufficient cause to

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Speaker 1: fire her.

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Speaker 4: And that's the surprise, is that the president has deviated

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Speaker 4: from his earlier line, which said that he can fire

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Speaker 4: anybody he wants to for any reason whatsoever. And by

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Speaker 4: inserting in the letter that he had caused to fire Cook,

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Speaker 4: that's suggesting the type of admission that he does need

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Speaker 4: to have cause to fire her. As a governor of

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Speaker 4: the Federal Reserve. He could always abandon that later in court,

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Speaker 4: but at least at this point, this is an unusual

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Speaker 4: claim for him, that he does need to have caused.

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Speaker 3: This all goes.

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Speaker 1: Back to FHFA Director Bill Poulty alleged that she lied

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Speaker 1: on loan applications for two properties, claiming she would use

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Speaker 1: each property as her primary residence. And Trump wrote in

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Speaker 1: a letter sent to Cook yesterday, at minimum, the conduct

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Speaker 1: that issue exhibits the sort of gross negligence in financial

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Speaker 1: transactions that calls into question your experience and trustworthiness as

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Speaker 1: a financial regulator.

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Speaker 3: Is that cause?

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Speaker 4: So this discharge of raises three issues in my mind anyway,

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Speaker 4: and the first is the one you've articulated, what is

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Speaker 4: caused and there is a dearth of precedent at the

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Speaker 4: federal level as to what is caused to justify dismissal

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Speaker 4: of someone who's otherwise protected in the government's employee for instance,

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Speaker 4: is there a reason to fire someone for something they

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Speaker 4: do outside their job, something they did in terms of

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Speaker 4: they got into a fight at a bar? Is that cause?

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Speaker 4: What happened here is at least akin to that. It's

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Speaker 4: like something that happened in our private life, not with

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Speaker 4: respect to her job. You know, that's one issue, but

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Speaker 4: there are others. You know, can a judge second guess

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Speaker 4: a presidence determination that the individual is not fit for

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Speaker 4: the office. That's a question of what kind of difference

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Speaker 4: the courts will give to the determination of cause. And

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Speaker 4: then there's the initial question of whether the president had

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Speaker 4: to give any kind of notice and ability to respond

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Speaker 4: before the discharge, if sort of being federal governor cooked

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Speaker 4: this was a question of an employee. The law is

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Speaker 4: clear that the employer needs to give notice an opportunity

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Speaker 4: to be heard prior to the discharge, except in an

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Speaker 4: emergency situation, and this isn't one. So the procedural issue

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Speaker 4: may well be raised in this case. And then There's

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Speaker 4: a third issue that I think could be relevant to

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Speaker 4: which is we don't have a lot of present about

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Speaker 4: if a court says that there is not caused to

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Speaker 4: dismiss individual, will the court inequity forced the president to

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Speaker 4: rehire someone, or will they just say that you were

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Speaker 4: unlawfully terminated and the government has to pay back pay. Obviously,

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Speaker 4: in the famous Humphrey's Executive case, which is still limping along,

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Speaker 4: the court didn't have to decide on the reinstatement issue

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Speaker 4: because the FTC Commissioner Humphrey had already died and the

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Speaker 4: estate was carrying on the case. So we don't know

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Speaker 4: whether there's no's ahead of time, we don't know what

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Speaker 4: cause means, and we don't know even if there is

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Speaker 4: no cause, whether the court would require reinstatement or wouldout

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Speaker 4: be a trenching too directly upon the presidential powers.

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Speaker 1: So the fact that he threatened to remove her and

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Speaker 1: asked her to step down because of this is that Notice,

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Speaker 1: who knows.

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Speaker 4: Did he say I'm worried about the loan applications? What's

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Speaker 4: your side of the story. I mean, that's what's supposed

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Speaker 4: to happen for most federal employees. It's not a full hearing,

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Speaker 4: it's just notice an opportunity to respond. And did he

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Speaker 4: ever ask you know what about this finding by Pulti,

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Speaker 4: what do you have to say about it? And will

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Speaker 4: that be constitutionally required? We don't know what is for employees.

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Speaker 4: Maybe it's not for officers, but the court will have

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Speaker 4: to tell us.

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Speaker 1: Also, this happened before she became a Fed governor, and

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Speaker 1: her attorney is saying there's no factual.

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Speaker 3: Or legal basis.

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Speaker 1: This is all based on a referral letter from the

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Speaker 1: head of the FHFA, Bill Pulty, who has sent similar

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Speaker 1: referral letters for Democratic Senator Adam Schiff of California and

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Speaker 1: New York Attorney General Letitia James, who are on Trump's

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Speaker 1: enemies list. So there are no findings and it appears

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Speaker 1: not even an investigation.

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Speaker 4: Yeah, I mean, the question then is whether this is

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Speaker 4: all pretext and whether the court will second guess whether

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Speaker 4: there is cause and effect. You know, the issue is

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Speaker 4: just because someone is accused of doing some thing that

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Speaker 4: may be unethical doesn't mean that they did something that

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Speaker 4: was unethical, And of course who was to judge that anyway,

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Speaker 4: So sort of the substance of the case about whether

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Speaker 4: there's a enough cause to remove the Federal Reserve governor

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Speaker 4: is you know, up in the air. And my guess

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Speaker 4: is that if the courts do take that issue up,

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Speaker 4: the courts would say that you can have cause to

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Speaker 4: dismiss somebody for conduct unrelated to the conduct of their job,

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Speaker 4: but you'd have to make some kind of determination whether

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Speaker 4: or not, given what the government is convinced that she did,

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Speaker 4: whether that would impair her ability to do her job effectively. So,

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Speaker 4: you know, this case raises a lot of issues that

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Speaker 4: have been circling around discharge of federal officers, and we

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Speaker 4: simply don't know the answers.

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Speaker 3: Looking at the.

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Speaker 1: Ruling earlier this year where the Supreme Court said it

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Speaker 1: would shield the Central Bank from the type of at

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Speaker 1: will removals of board members that they've allowed Trump to

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Speaker 1: do at least temporary at other independent federal agencies. Do

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Speaker 1: you think that just stands for the fact that it

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Speaker 1: has to be for cause, or does it stand for

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Speaker 1: the Fed is different.

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Speaker 4: You could say that President Trump is doing the trial balloon,

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Speaker 4: and if it goes well and he can get away

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Speaker 4: with dismissing for a Wiserve governor Cook, then maybe he

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Speaker 4: can remove Powell because of the overruns in terms of

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Speaker 4: redecorating and restructuring his buildings, right, I mean that may

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Speaker 4: be cause as well, So he may be trying this

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Speaker 4: as a kind of trial boom to see what he

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Speaker 4: can get away with. On the other hand, it's unclear

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Speaker 4: what principled way that the Supreme Court could say that

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Speaker 4: president can't fire the head of the Fed, but they

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Speaker 4: can fire all other officers in the United States. That

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Speaker 4: helps the markets, but it doesn't seem to be very

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Speaker 4: logical either. So we just don't know.

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Speaker 1: And has the Supreme Court ever defined what for cause means?

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Speaker 4: No, it has never defined it. It is dereliction of

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Speaker 4: duties is one word that they use. But I think

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Speaker 4: that it's a small step from dere election of duties

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Speaker 4: to say, you know, if someone I had a case,

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Speaker 4: for instance, they had to do with the Ministry of

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Speaker 4: Law judge who is disciplined for having a fight with

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Speaker 4: a family member, and the Court's upheld that that's cause.

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Speaker 4: So it's a small step from dere election of duties

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Speaker 4: to say, you know, if someone didn't behave well outside

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Speaker 4: of office, and that casts a cloud upon the integrity

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Speaker 4: and the ability of the office to do its congressionally

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Speaker 4: assigned tasks. So again, if the court ever reaches that,

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Speaker 4: I would think that they would start with the president

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Speaker 4: on that that you don't want to limit cause just

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Speaker 4: to what's happened in terms of carrying out the duties

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Speaker 4: of your office, you'd want to expand it to say

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Speaker 4: any kind of conduct then that would undermine your ability

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Speaker 4: in the future to conduct your affairs in an appropriate way.

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Speaker 1: Coming up next on the Bloomberg Law Show, I'll continue

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Speaker 1: this conversation with Professor Harold Krant does sh Cago Kent

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Speaker 1: College of Law. More on Trump's plans to expand the

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Speaker 1: use of the military in American cities, and a Trump

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Speaker 1: appointed federal judge tosses the administration's lawsuit against all the

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Speaker 1: federal judges in Maryland. I'm June Grosso and you're listening

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Speaker 1: to Bloomberg. Mister President, do not come to Chicago. President

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Speaker 1: Trump is threatening to expand his use of the National

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Speaker 1: Guard to crack down on crime in US cities, and

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Speaker 1: after deploying the Guard to LA and DC, Chicago seems

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Speaker 1: to be next on his list.

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Speaker 5: When I have some slob like Pritzker criticizing US before

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Speaker 5: we even go there. I made the statement that next

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Speaker 5: should be Chicago, because, as you all know, Chicago's a

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Speaker 5: killing field right now, and they don't acknowledge it, and

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Speaker 5: they say we don't need freedom freedom. He's a dictator.

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Speaker 5: He's a dictator. A lot of people are saying, maybe

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Speaker 5: we like a dictator. I don't like a dictator.

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Speaker 1: I'm not a city and state officials condemned Trump's plans

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Speaker 1: to deploy the National Guard. Mayor Brandon Johnson says the

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Speaker 1: crime rate in Chicago has been falling for years, and

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Speaker 1: Governor J. B. Pritzker says they'll take Trump to court

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Speaker 1: if he tries to send the Guard to Chicago.

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Speaker 6: If we are not even in the top twenty five

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Speaker 6: most dangerous cities, then why are we now being targeted

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Speaker 6: by the Trump administration for a military occupation. We are

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Speaker 6: being targeted because of what and who we represent.

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Speaker 1: The first thing we're gonna do is take him to

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Speaker 1: court because it's illegal.

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Speaker 2: It's unconstitutional.

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Speaker 6: Frankly, it's un American to send troops into an American

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Speaker 6: city the way that he wants to fight crime.

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Speaker 1: There is literally a law on the books that says

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Speaker 1: he's not allowed to do that I've been talking to

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Speaker 1: Professor Harold krent Are the Chicago Kent College of Law.

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Speaker 1: President Trump is threatening to expand his use of the

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Speaker 1: National Guard crackdown on crime in US cities, and after

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Speaker 1: DC and LA, Chicago seems to be the next on

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Speaker 1: his list. Crime statistics for Chicago this year's show at

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Speaker 1: thirty percent reduction in homicides, thirty five percent reduction in robberies,

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Speaker 1: nearly forty percent drop in shootings. Chicago is not on

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Speaker 1: the twenty five most dangerous cities in the US. MEW

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Speaker 1: what authority does he have to send National Guard in?

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Speaker 4: Whatever authority has, it's certainly even less than he had

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Speaker 4: in LA and less than he had in DC. In LA,

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Speaker 4: there was a fiction that there was a type of invasion,

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Speaker 4: if you will, of undocumented into the city until Los Angeles,

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Speaker 4: which prevented the regular law enforcement authorities in California from

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Speaker 4: responding adequately. In addition, that fiction could be spun out

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Speaker 4: that it was difficult to enforce federal law there because

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Speaker 4: of the presence of so many individuals without documentation, and

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Speaker 4: that's what necessitated seating in the National Guard. Those theories

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Speaker 4: can't apply to Chicago. There is no invasion here, and

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Speaker 4: there is no problem of enforcing federal law here. With DC,

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Speaker 4: of course, the President serves in essence as a governor

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Speaker 4: of the National Guard in DC, and so he can

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Speaker 4: call out and approve the use of the National Guard

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Speaker 4: for whatever reason, even though there was a decline in

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Speaker 4: the prime statistics in DC as well. So Chicago's another

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Speaker 4: step forward, and I think it's a very dangerous step forward. Clearly,

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Speaker 4: the Framers didn't trust the idea of a standing army.

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Speaker 4: They were worried about using the army for regular law enforcement.

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Speaker 4: And there is no authority to use the National Guard

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Speaker 4: for those ordinary law enforcement mechanisms as well. And I'm

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Speaker 4: not even trained for it, So we have a specter.

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Speaker 4: In other words, if the President can use call out

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Speaker 4: the National Guard for Chicago, he can call out the

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Speaker 4: National Guard for any reason he wants, and we all

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Speaker 4: should be very deeply concerned about that, because that is

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Speaker 4: edging us one step closer to autocratic rule, because it

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Speaker 4: means that the president can use the National Guard for

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Speaker 4: his own bidding, for whatever reason he wants to, and

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Speaker 4: there are no constraints on his use of armed forces.

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Speaker 1: How do you think that Trump might try to use

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Speaker 1: Title ten of the US Code on Armed Services about

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Speaker 1: the federal deployment of National Guard if there's a rebellion

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Speaker 1: or danger of a rebellion against the authority of the

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Speaker 1: government of the United States, or could he.

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Speaker 3: Try to invoke the Insurrection Act.

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Speaker 4: I mean, there's no insurrection, and I don't think he's

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Speaker 4: not even articulated a possible insurrection. He did try to

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Speaker 4: do something like that for Los Angeles, but he hasn't

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Speaker 4: tried to do that for Chicago, and I think it

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Speaker 4: would be incredibly far fetched. And I agree that if

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Speaker 4: there were federal facilities that were in danger, then he

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Speaker 4: could utilize those powers to protect federal facilities, but that's

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Speaker 4: not the case. Or if ordinary law enforcement had totally

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Speaker 4: fallen apart, he could call in for the Guard in

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Speaker 4: that context as well. We do have a couple of precedents,

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Speaker 4: right we have the presidents of calling out the National

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Speaker 4: Guard to help the desegregation efforts in the nineteen fifties.

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Speaker 4: We have the president of calling out the National Guard

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Speaker 4: where there was really no general typical law enforcement because

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Speaker 4: of the riots that tore the streets up in the

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Speaker 4: nineteen sixties, particularly after M L. K was assassinated. So

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Speaker 4: we have some presidents, but they're not ordinary law enforcement

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Speaker 4: as in Chicago. And so this is simply a dramatic

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Speaker 4: expansion of the ability of a president to call the

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Speaker 4: National Guard if he in fact does so. And I

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Speaker 4: think it's something we should be deeply concerned about.

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Speaker 1: So Chicago is a sanctuary city, right, So could he say, well,

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Speaker 1: Chicago is blocking in some way, They're not helping with

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Speaker 1: the federal immigration enforcement because they're not assisting us in

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Speaker 1: finding out where people are.

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Speaker 4: Yeah, I mean, it could be that the claim here

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Speaker 4: is that Chicago authorities are frustrating federal law enforcement ability

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Speaker 4: to apprehend and deport those without documentation. That's not his

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Speaker 4: claim here. He hasn't stated that, and obviously there's probably

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Speaker 4: no prove of it anyway, But he hasn't even made

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Speaker 4: that as a thin veneer to justify his use of troops.

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Speaker 4: So that would be closer to the LA model for

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Speaker 4: use of troops as opposed to what he said so

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Speaker 4: far about Chicago.

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Speaker 1: And we're waiting still on Judge Brier's decision about pass

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Speaker 1: comatatis in the LA case, but the appellate court there

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Speaker 1: did allow Trump to keep the troops in La.

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Speaker 4: They did, and of course it was on a wasn't

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Speaker 4: the full decision. It was just based upon a stay

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Speaker 4: of what the lower court had ordered. So even after

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Speaker 4: a Judge Briar reaches his decision, there will be an

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Speaker 4: appeal to the Ninth Circuit. But I think it's important.

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Speaker 4: I mean, I think the governor Pritcer in Illinois is

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Speaker 4: ready to file suit as well. And this is the

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Speaker 4: only way, except for a military challenge, that the governor

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Speaker 4: can contest the legitimacy of what the president is trying

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Speaker 4: to accomplish.

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Speaker 1: Also, the Chicago's mayor called on Trump to release something

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Speaker 1: like eight hundred million dollars in anti violence grants that

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Speaker 1: were canceled in April by the Justice Department.

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Speaker 4: No, the point is that, you know, if the president

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Speaker 4: wants Chicago or Los Angeles to enhance their crime fighting ability,

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Speaker 4: then why did it cancel the grants? And it should

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Speaker 4: allow for these communities to hire more police, to get

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Speaker 4: better weapons or even surveillance mechanisms in order to fight crime.

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Speaker 4: And so putting this on the National Guard, who are

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Speaker 4: not trained for that is probably counterintuitive and may result

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Speaker 4: in worse kind of law enforcement than otherwise would take place.

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Speaker 4: And never thing to note is that the president is

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Speaker 4: selected Los Angeles, d C. And Chicago, which are all

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Speaker 4: clearly Democratic strongholds, and he's making no mention of cities

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Speaker 4: like Saint Louis, New Orleans, and Memphis, which have crime

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Speaker 4: in excess of those in DC and Chicago, but happen

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Speaker 4: to be headed by Republican governors. So that again will

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Speaker 4: go give a strong flavor of what the president is

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Speaker 4: trying to do is just sort of show his might

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Speaker 4: in the face of states and cities which would otherwise

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Speaker 4: object to his governance style or in fact the substance

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Speaker 4: of his governing itself.

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Speaker 1: And a judge's rule last week that the Trump administration

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Speaker 1: can't deny funding to Chicago, La, Denver and cities because

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Speaker 1: of policies that limit cooperation with federal immigration efforts because

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Speaker 1: they're sanctuary cities or counties.

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Speaker 4: And this is a reprise of litigation back in the

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Speaker 4: first Trump administration when he tried to remove funding from

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Speaker 4: the so called sanctuary cities. And simply, you can't do

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Speaker 4: that unless Congress gives the green light, and Congress has

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Speaker 4: not allowed police grants, for instance, in this case, to

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Speaker 4: be predicated on the police agreeing to be helpful to

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Speaker 4: ICE agents in rounding up those without documentation. Congress could

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Speaker 4: make that. It would be an interesting policy call. Congress

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Speaker 4: could make it, but it hasn't, and that's what the

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Speaker 4: courts have held.

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Speaker 2: You know.

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Speaker 4: And to go back to the National Guard issue, I'm

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Speaker 4: hoping this is just a headline grabber, kind of in

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Speaker 4: your face moved by the President. But if he really

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Speaker 4: sends troops here, then he can send troops for any

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Speaker 4: reason at all, including what find gim most is around

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Speaker 4: the midterms. You don't want to give the president idea

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Speaker 4: that he can frighten people or deter them from voting

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Speaker 4: by sending National guards to the polling places in various

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Speaker 4: jurisdictions during the midterms. And so that's what frightens me

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Speaker 4: the most. And I think it's important then to fight

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Speaker 4: against the use of the National Guard for sort of

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Speaker 4: personal political reasons, as he's doing in Chicago.

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Speaker 1: And yesterday Trump also signed an executive order establishing specialized

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Speaker 1: units and the National Guard to address crime in cities,

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Speaker 1: though it's unclear how the order will work in practice.

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Speaker 3: What's your take on that.

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Speaker 4: Well, I think that viewed charitably, the executive word is

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Speaker 4: consistent with the Constitution. It's saying, we want to have

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Speaker 4: special training if there is a moment, such as with

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Speaker 4: George Floyd or other of writing, if local law enforcement

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Speaker 4: cannot exercise their authority to keep peace within the cities,

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Speaker 4: that we'll talk like a ready force just in case

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Speaker 4: it's needed by itself. I think the president could probably

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Speaker 4: do that. The only question is when he can deploy

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Speaker 4: this especially trained force. Can he do it again during

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Speaker 4: the midterms. Let's hope not, But just the training by

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Speaker 4: itself seems to me to be within his ability to

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Speaker 4: coordinate as commander in chief.

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Speaker 1: There was a lot of legal news today. Let's turn

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Speaker 1: out to another development. A federal judge throughout the Trump

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Speaker 1: administration's lawsuit against Maryland's entire federal bench that means every

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Speaker 1: federal district judge in Maryland.

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Speaker 3: This was a suit over.

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Speaker 1: In order by the chief Judge of the Maryland District

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Speaker 1: Court that stopped the immediate deportation of migrants challenging their

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Speaker 1: removals for two days. And the just Department had said

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Speaker 1: the automatic pause impeded the president's authority to enforce immigration laws,

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Speaker 1: and it sought a court order blocking it and federal

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Speaker 1: judge Thomas Cullen, a Trump appoint d, in an emphatic

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Speaker 1: ruling that underscored the extraordinary nature of the suit, called

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Speaker 1: the suit potentially calamitous, and he also criticized the administration's

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Speaker 1: attacks on the judiciary, highlighting in a footnote that White

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Speaker 1: House officials in recent months had described judges as rogue, unhinged,

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Speaker 1: and crooked, among other epithets.

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Speaker 4: So what was I think interesting about the opinion is

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Speaker 4: that part of it is predicated on the unity of

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Speaker 4: federal judges as well as the clerk of the court.

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Speaker 4: That may be a little extreme, you know, in terms

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Speaker 4: of the future. But what he also added was that

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Speaker 4: in this context, you would never have an injunction, that

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Speaker 4: the courts would never enjoying courts from enforcing an order

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Speaker 4: that's simply unheard of in the courts of equity and

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Speaker 4: is inconsistent with norms of separation of powers. And so

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Speaker 4: that in essence, the Department of Justice and the Homeland

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Speaker 4: Security didn't have standing to bring the case, and that

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Speaker 4: became much an easier sell because indeed, as we discussed earlier,

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Speaker 4: the government could have easily challenged the standing order in

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Speaker 4: a different way by raising it on appeal and the

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Speaker 4: case that it might lose in terms of the immigration

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Speaker 4: matter before that court. So I don't know all the

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Speaker 4: reasoning will be upheld by the Fourth Circuit, but I

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Speaker 4: think the underlying decision to dismiss this poorly crafted lawsuit

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Speaker 4: will be upheld by the Fourth Circuit.

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Speaker 1: It was hard to see why the Justice Department brought

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Speaker 1: this suit because it is unprecedented, and I use that

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Speaker 1: word a lot lately. And the Trump administration has already

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Speaker 1: filed a notice of appeal. So more to come. Thanks

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Speaker 1: so much, Hal. That's Professor Harold Krent of the Chicago

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Speaker 1: Kent College of Law, coming up next on the Bloomberg

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Speaker 1: Law Show. Who's in charge of the New Jersey US

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Speaker 1: Attorney's Office? I'm June Grosso and you're listening to Bloomberg.

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Speaker 1: The Trump administration has tried various maneuvers to keep Alina Habba,

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Speaker 1: Trump's former personal attorney, at the top of the US

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Speaker 1: Attorney's office in New Jersey, but a federal judge has

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Speaker 1: ruled that Habba's appointment was not lawful and disqualified her

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Speaker 1: from participating in any ongoing cases.

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Speaker 2: I am the pick of the president.

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Speaker 1: I am the pick of Pam BONDI our attorney General,

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Speaker 1: and I will serve this country. The continuing maneuvering and

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Speaker 1: confusion over Habba's role has led to federal criminal cases

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Speaker 1: in New Jersey basically coming to a standstill because no

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Speaker 1: one knows who's in charge, and the judge's decision could

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Speaker 1: mean that any actions taken under Habba since July first

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Speaker 1: are open to challenges by defendants. It could also reverberate

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Speaker 1: across the country because the Justice Department has been using

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Speaker 1: similar complex maneuvers to extend the tenures of other Trump

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Speaker 1: loyalists as interim US attorneys in California, Arizona, New Mexico,

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Speaker 1: and New York. Joining me is Anne Joseph O'Connell, a

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Speaker 1: professor at Stanford Law School. Federal Judge Matthew Brand said

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Speaker 1: that Alina Habba is not lawfully holding the office of

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Speaker 1: the United States Attorney and has been in the position

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Speaker 1: without legal authority since July first. It gets quite complicated,

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Speaker 1: and so please take us through it.

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Speaker 7: It is a lengthy decision with several rulings. Let's march

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Speaker 7: through the opinion to see how the judge made various rulings.

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Speaker 7: So the first thing the judge did was to decide

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Speaker 7: whether Miss Haba was lawfully serving under the specific interim

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Speaker 7: us Attorney provision twenty eight Usc. Five forty six. And

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Speaker 7: when he looked at that provision, he determined that the

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Speaker 7: one hundred and twenty day time limit started when the

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Speaker 7: first appointment was made under the statute, So that first

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Speaker 7: appointment was not actually Miss Haba, It was mister Giodano,

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Speaker 7: and his appointment started, and the one hundred and twenty

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Speaker 7: days ran from that and ended, according to the judge,

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Speaker 7: on July first. So although Miss Haba had more days

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Speaker 7: if you were counting to one hundred twenty from when

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Speaker 7: she started, the judge held that was not the right

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Speaker 7: way to consider the clock. So that was the first

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Speaker 7: decision that starting on July first, miss Haba was not

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Speaker 7: lawfully serving under section five forty six. Now there was

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Speaker 7: a ruling kind of connected about whether the government could

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Speaker 7: turn to the Vacancies Act, because the criminal defendants at

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Speaker 7: issue argued, well, if Miss Hobbo was not lawfully serving

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Speaker 7: under five forty six, the government could not turn to

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Speaker 7: the Federal Vacancy's Reform Act, which provides a way of

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Speaker 7: getting in temporary acting officials, not just for US attorneys,

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Speaker 7: but a whole range of positions, and the criminal defendants

439
00:26:15,720 --> 00:26:18,840
Speaker 7: argued that actually the Vacancies Act did not apply to

440
00:26:18,960 --> 00:26:21,960
Speaker 7: US attorneys because of five forty six, and this was

441
00:26:22,000 --> 00:26:25,160
Speaker 7: the one place the judge actually ruled for the government.

442
00:26:25,359 --> 00:26:28,880
Speaker 7: The judge said that five forty six was not the

443
00:26:28,960 --> 00:26:34,000
Speaker 7: only mechanism for temporary service for US Attorney's spots. He

444
00:26:34,160 --> 00:26:37,720
Speaker 7: said that the Federal Vacancy's Reform Act was available now.

445
00:26:37,840 --> 00:26:40,760
Speaker 7: That then turns to the next ruling. He said that

446
00:26:40,840 --> 00:26:44,200
Speaker 7: Miss Habo was not lawfully serving under the Federal Vacancy's

447
00:26:44,200 --> 00:26:46,879
Speaker 7: Reform Act, so the Act applied, but she was not

448
00:26:47,000 --> 00:26:52,040
Speaker 7: lawfully serving, and the primary reason for that ruling was that,

449
00:26:52,200 --> 00:26:55,879
Speaker 7: as he interpreted Section three three four five of the

450
00:26:55,880 --> 00:27:00,320
Speaker 7: Federal Vacancy's Reform Act, you cannot have a first assist

451
00:27:00,440 --> 00:27:04,960
Speaker 7: to the vacant Senate confirmed rule be named after the

452
00:27:05,040 --> 00:27:08,720
Speaker 7: vacancy in the position, And for the judge, the vacancy

453
00:27:08,840 --> 00:27:12,560
Speaker 7: is not the end of interim service under five forty six.

454
00:27:13,119 --> 00:27:16,680
Speaker 7: It's the end of when the last Senate confirmed US

455
00:27:16,760 --> 00:27:20,480
Speaker 7: attorney left, and so ms Haba was put into a

456
00:27:20,520 --> 00:27:25,639
Speaker 7: first assistant slot after the prior confirmed US Attorney left

457
00:27:25,960 --> 00:27:28,560
Speaker 7: and the judge held that was not permitted under the

458
00:27:28,600 --> 00:27:30,400
Speaker 7: Federal Vacancy's reformat.

459
00:27:30,359 --> 00:27:32,560
Speaker 3: What about her delegating to others?

460
00:27:32,960 --> 00:27:35,199
Speaker 7: There was one more ruling about if she was not

461
00:27:35,400 --> 00:27:39,320
Speaker 7: serving under the Federal Vacancy's Reformact, could she perform the

462
00:27:39,480 --> 00:27:42,480
Speaker 7: job through what is known as delegation? And that was

463
00:27:42,520 --> 00:27:45,840
Speaker 7: the final ruling by the judge in the seventy seven

464
00:27:45,920 --> 00:27:49,520
Speaker 7: page opinion, and he held that under another provision of

465
00:27:49,560 --> 00:27:53,280
Speaker 7: the Vacancy's Act three three four seven, that Miss Habba

466
00:27:53,359 --> 00:27:57,240
Speaker 7: could not perform the role of the US Attorney without

467
00:27:57,280 --> 00:28:00,760
Speaker 7: the acting title and through delegation. He said that also

468
00:28:00,960 --> 00:28:01,760
Speaker 7: was not permitted.

469
00:28:02,400 --> 00:28:08,199
Speaker 1: Judge Brawn was concerned about allowing stacked interim appointments that

470
00:28:08,240 --> 00:28:14,720
Speaker 1: would allow the administration to effectively avoid the confirmation process

471
00:28:14,840 --> 00:28:17,920
Speaker 1: and do away with the Senate's advice and consent.

472
00:28:18,800 --> 00:28:22,280
Speaker 7: Yes, so this was about his ruling on twenty eight USC.

473
00:28:22,359 --> 00:28:24,639
Speaker 7: Five forty six. This is where you get what are

474
00:28:24,680 --> 00:28:27,520
Speaker 7: known as interim US attorneys. There's this one hundred and

475
00:28:27,520 --> 00:28:30,159
Speaker 7: twenty day time limit, and then after that the district

476
00:28:30,160 --> 00:28:33,120
Speaker 7: Court may choose someone to serve in the role until

477
00:28:33,119 --> 00:28:37,320
Speaker 7: a Senate confirmed person comes into the position, and the

478
00:28:37,359 --> 00:28:42,239
Speaker 7: government argued that it could make successive one hundred and

479
00:28:42,320 --> 00:28:45,440
Speaker 7: nineteen day appointments so that it never hit the one

480
00:28:45,480 --> 00:28:48,040
Speaker 7: hundred and twentieth day, where the district Court would then

481
00:28:48,120 --> 00:28:51,720
Speaker 7: have a role, and the judge rejected that. The judge said, well,

482
00:28:51,760 --> 00:28:53,400
Speaker 7: if you can do that, you could have one hundred

483
00:28:53,400 --> 00:28:55,800
Speaker 7: and nineteen days on one appointment, in one hundred nineteen

484
00:28:55,880 --> 00:28:58,800
Speaker 7: days on another appointment and keep going. And indeed, the

485
00:28:58,840 --> 00:29:02,080
Speaker 7: judge said, you could have a longer term for an

486
00:29:02,160 --> 00:29:05,960
Speaker 7: interim US attorney than you could for a Senate confirmed

487
00:29:06,040 --> 00:29:09,479
Speaker 7: US attorney, because there's a statutory provision that says that

488
00:29:09,600 --> 00:29:13,000
Speaker 7: Senate confirmed US attorneys have a four year term. Of course,

489
00:29:13,040 --> 00:29:15,840
Speaker 7: they're at will leaders, so the president can fire them

490
00:29:15,880 --> 00:29:18,440
Speaker 7: before that, but they can't serve longer than four years.

491
00:29:18,440 --> 00:29:21,440
Speaker 7: And he said, under the government's interpretation of five forty six,

492
00:29:21,680 --> 00:29:24,560
Speaker 7: you could actually get in someone for longer than four years.

493
00:29:24,680 --> 00:29:26,800
Speaker 1: Do you think that determination is correct?

494
00:29:27,240 --> 00:29:27,640
Speaker 3: I do.

495
00:29:28,320 --> 00:29:32,200
Speaker 7: The judge relied primarily on the text of five forty

496
00:29:32,240 --> 00:29:36,440
Speaker 7: six in making its ruling. Looking at appointment, there's discussion

497
00:29:36,480 --> 00:29:40,360
Speaker 7: of definite and indefinite articles. I think the text is

498
00:29:40,400 --> 00:29:43,640
Speaker 7: a bit more ambiguous. I would read the text to

499
00:29:43,760 --> 00:29:47,680
Speaker 7: say that it is possible that you could have a

500
00:29:47,880 --> 00:29:50,600
Speaker 7: successive one hundred and twenty day or one hundred nineteen

501
00:29:50,680 --> 00:29:54,480
Speaker 7: day appointments. But the purpose, right, The purpose when Congress

502
00:29:54,480 --> 00:29:57,200
Speaker 7: put these time limits back in in two thousand and seven,

503
00:29:57,320 --> 00:30:02,040
Speaker 7: was clear right. They wanted restrict on the Attorney general's

504
00:30:02,360 --> 00:30:05,640
Speaker 7: powers to name inter remuus attorneys. So for me, a

505
00:30:05,760 --> 00:30:09,240
Speaker 7: text plus a purpose argument would say, yes, you can't

506
00:30:09,280 --> 00:30:12,320
Speaker 7: just have successive one hundred and nineteen day appointments. But

507
00:30:12,360 --> 00:30:15,520
Speaker 7: the judge did talk a little bit about purpose and

508
00:30:15,640 --> 00:30:19,440
Speaker 7: legislative history, and I guess I would wait the purpose

509
00:30:19,560 --> 00:30:23,960
Speaker 7: and legislative history more than the judge did and acknowledge

510
00:30:24,000 --> 00:30:27,120
Speaker 7: that the text is more ambiguous than the ruling does.

511
00:30:27,440 --> 00:30:29,440
Speaker 1: But you would come out at the same point as

512
00:30:29,440 --> 00:30:31,000
Speaker 1: the judge.

513
00:30:30,680 --> 00:30:33,560
Speaker 7: Yeah, that you could have one one hundred and twenty

514
00:30:33,640 --> 00:30:37,480
Speaker 7: day appointment, and then the district court could name someone,

515
00:30:37,720 --> 00:30:40,440
Speaker 7: or you could turn to the federal vacancy's re format

516
00:30:41,520 --> 00:30:42,200
Speaker 7: New Jersey.

517
00:30:42,640 --> 00:30:46,680
Speaker 1: You know, criminal cases are at a standstill. Arraignments have

518
00:30:46,760 --> 00:30:51,320
Speaker 1: been delayed, hearings, plea agreements, grand jury proceedings, even a

519
00:30:51,360 --> 00:30:55,960
Speaker 1: trial who is in charge now the Deputy Attorney General,

520
00:30:56,040 --> 00:30:59,240
Speaker 1: Todd Blanche, the number two at the Justice Department, has

521
00:30:59,280 --> 00:31:02,840
Speaker 1: been put his name on some of the New Jersey

522
00:31:02,840 --> 00:31:05,400
Speaker 1: Office's work in the last couple of days. I mean,

523
00:31:05,760 --> 00:31:08,719
Speaker 1: does that solve the problem who's in charge?

524
00:31:09,680 --> 00:31:12,720
Speaker 7: Well, it's just the problem temporarily. I mean, if mister

525
00:31:12,800 --> 00:31:16,440
Speaker 7: Blanche is a fixing his signature, that would be okay

526
00:31:16,560 --> 00:31:20,560
Speaker 7: because under the various statutory provisions, the Deputy Attorney General

527
00:31:20,840 --> 00:31:24,560
Speaker 7: has the same power as the Attorney General, who has

528
00:31:24,760 --> 00:31:27,600
Speaker 7: power to do anything that a US attorney might do,

529
00:31:28,160 --> 00:31:30,720
Speaker 7: so that would be okay. I think they need to

530
00:31:30,800 --> 00:31:32,920
Speaker 7: sort all of this out. I mean, the judge did

531
00:31:33,040 --> 00:31:36,080
Speaker 7: stay his own ruling. There was no request from the

532
00:31:36,080 --> 00:31:39,560
Speaker 7: government to stay it. He stayed in himself until it

533
00:31:39,600 --> 00:31:41,600
Speaker 7: gets sorted out on appeal. Right, this is going to

534
00:31:41,600 --> 00:31:43,600
Speaker 7: get sorted out on appeal one way or the other.

535
00:31:43,840 --> 00:31:46,160
Speaker 7: And the government I think has a decent chance of

536
00:31:46,160 --> 00:31:48,760
Speaker 7: winning on appeal. But obviously if the government does not

537
00:31:48,840 --> 00:31:51,040
Speaker 7: win on appeal, they don't want to create more problems

538
00:31:51,120 --> 00:31:53,400
Speaker 7: for themselves in the intervening period.

539
00:31:53,680 --> 00:31:57,000
Speaker 1: And didn't the judge say that HABA can't even supervise

540
00:31:57,520 --> 00:31:59,800
Speaker 1: And I take it that what she has been doing

541
00:31:59,880 --> 00:32:04,440
Speaker 1: is supervising because she has no experience as a prosecutor.

542
00:32:04,800 --> 00:32:07,720
Speaker 7: Well, it's a little unclear, right, She's not supposed to

543
00:32:07,760 --> 00:32:11,719
Speaker 7: be carrying out the role of the US attorney. So

544
00:32:11,880 --> 00:32:16,160
Speaker 7: he does allow for a special attorney to the Attorney

545
00:32:16,200 --> 00:32:19,880
Speaker 7: General to do some tasks, you know, that would be

546
00:32:20,000 --> 00:32:23,440
Speaker 7: helpful in the US Attorney's office. And indeed, we can

547
00:32:23,480 --> 00:32:26,680
Speaker 7: get to this whole point about delegation, you know, actions,

548
00:32:26,920 --> 00:32:30,600
Speaker 7: whether they could be void but could be ratified later.

549
00:32:30,800 --> 00:32:34,160
Speaker 7: So there is some room for her to act. But

550
00:32:34,400 --> 00:32:37,480
Speaker 7: it's going to create a lot of headaches until or

551
00:32:37,560 --> 00:32:39,760
Speaker 7: unless the Appeals Court reverses.

552
00:32:40,560 --> 00:32:46,440
Speaker 1: The Trump administration has done similar maneuvering with other US

553
00:32:46,480 --> 00:32:51,320
Speaker 1: Attorney's offices in Los Angeles, Nevada, New Mexico, and upstate

554
00:32:51,440 --> 00:32:56,200
Speaker 1: New York, where they've tried to sidestep or override the

555
00:32:56,240 --> 00:33:01,120
Speaker 1: Senate confirmation and the judicial appointment process. Does this ruling

556
00:33:01,520 --> 00:33:04,280
Speaker 1: implicate those US attorneys as well?

557
00:33:04,760 --> 00:33:08,960
Speaker 7: Yeah, So anyone who is serving as an acting US

558
00:33:09,080 --> 00:33:12,960
Speaker 7: attorney because they were named to the first assistant role

559
00:33:13,400 --> 00:33:16,120
Speaker 7: under this judge's ruling, if they were named the first

560
00:33:16,120 --> 00:33:19,480
Speaker 7: assistant rule after the departure of the last Senate confirmed

561
00:33:19,880 --> 00:33:23,400
Speaker 7: US attorney who almost certainly was a Biden administration pick

562
00:33:23,560 --> 00:33:27,400
Speaker 7: in many cases, right, they left before January twentieth at noon.

563
00:33:27,520 --> 00:33:31,280
Speaker 7: Those people, under this reasoning, would not be properly serving

564
00:33:31,360 --> 00:33:32,440
Speaker 7: under the Vacancies Act.

565
00:33:32,560 --> 00:33:35,960
Speaker 1: We can anticipate that defendants and those jurisdictions are going

566
00:33:36,040 --> 00:33:40,479
Speaker 1: to file suits as well, challenging the authority of the

567
00:33:40,600 --> 00:33:41,520
Speaker 1: US attorneys.

568
00:33:41,920 --> 00:33:44,680
Speaker 7: Yes, and it's not just limited to US attorneys. The

569
00:33:44,760 --> 00:33:48,160
Speaker 7: ruling about the Federal Vacancies Act which this judge made

570
00:33:48,360 --> 00:33:51,280
Speaker 7: says that any first assistant who is serving as the

571
00:33:51,320 --> 00:33:54,640
Speaker 7: default acting official under the Federal Vacancy's Reform Act has

572
00:33:54,720 --> 00:33:57,600
Speaker 7: to have been in place before the departure of the

573
00:33:57,680 --> 00:34:01,040
Speaker 7: last Senate confirmed person in a cup position. Well, that

574
00:34:01,080 --> 00:34:04,920
Speaker 7: covers US attorneys, but it covers hundreds of more positions.

575
00:34:05,080 --> 00:34:08,239
Speaker 7: So all of those first assistants you know, now leading

576
00:34:08,360 --> 00:34:12,200
Speaker 7: that organization whatever federal agency in an acting capacity, those

577
00:34:12,239 --> 00:34:14,400
Speaker 7: people too, are serving in violation.

578
00:34:15,080 --> 00:34:17,240
Speaker 1: So that would have really broad implications.

579
00:34:17,760 --> 00:34:19,920
Speaker 7: Yeah, So the first thing we were talking about, you know,

580
00:34:19,960 --> 00:34:22,680
Speaker 7: these successive one hundred and nineteen day appointments, that's only

581
00:34:22,760 --> 00:34:26,640
Speaker 7: about US attorneys, right, that's you know about ninety something positions.

582
00:34:27,239 --> 00:34:30,160
Speaker 7: The second ruling about the timing of the first assistant

583
00:34:30,520 --> 00:34:34,640
Speaker 7: that applies to hundreds of positions. And I should note

584
00:34:34,719 --> 00:34:37,400
Speaker 7: that for both of these rulings, actually the one specific

585
00:34:37,400 --> 00:34:40,280
Speaker 7: to US attorneys on five forty six and the timing

586
00:34:40,280 --> 00:34:44,120
Speaker 7: of the first assistant, this is the first judicial ruling

587
00:34:44,360 --> 00:34:49,200
Speaker 7: on these issues anywhere, right, So we don't have a

588
00:34:49,320 --> 00:34:54,120
Speaker 7: ruling about successive US attorney in the interim capacity under

589
00:34:54,160 --> 00:34:57,759
Speaker 7: five forty six. There's sort of language in a footnote

590
00:34:57,840 --> 00:35:01,400
Speaker 7: in a much older case which that is actually permitted,

591
00:35:01,640 --> 00:35:03,719
Speaker 7: but we've never had a ruling from any court saying

592
00:35:03,760 --> 00:35:07,600
Speaker 7: that successive interim US attorney positions are prohibited under five

593
00:35:07,640 --> 00:35:10,719
Speaker 7: forty six, and the much broader ruling that the first

594
00:35:10,719 --> 00:35:13,560
Speaker 7: assistant has to be in place prior to the departure

595
00:35:13,600 --> 00:35:16,799
Speaker 7: of the last confirmed person. This judge is also the

596
00:35:16,800 --> 00:35:19,160
Speaker 7: first to make that conclusion, and.

597
00:35:19,080 --> 00:35:23,000
Speaker 1: The Trump administration has already said they're appealing the decision.

598
00:35:23,200 --> 00:35:26,160
Speaker 1: So the Third Circuit, I guess, will be the first

599
00:35:26,160 --> 00:35:28,279
Speaker 1: circuit to rule on this as well.

600
00:35:28,480 --> 00:35:32,920
Speaker 7: That's right. And then there's another ruling that has implications

601
00:35:32,960 --> 00:35:36,799
Speaker 7: far beyond US attorneys. So once the judge decided that

602
00:35:36,880 --> 00:35:39,840
Speaker 7: Miss Habba was not lawfully serving under the Federal Vacancy's

603
00:35:39,840 --> 00:35:43,440
Speaker 7: Reform Act. He had to turn to the fallback argument

604
00:35:43,480 --> 00:35:46,840
Speaker 7: of the government, which was that it's okay if she

605
00:35:46,920 --> 00:35:50,719
Speaker 7: doesn't have the formal acting title under the Federal Vacancy's

606
00:35:50,719 --> 00:35:55,000
Speaker 7: Reform Act, Miss Bondi has named her under section five

607
00:35:55,080 --> 00:35:58,759
Speaker 7: fifteen in other provisions regarding the Department of Justice as

608
00:35:58,800 --> 00:36:02,640
Speaker 7: a special attorney to the Attorney General, and in that rule,

609
00:36:02,760 --> 00:36:06,120
Speaker 7: according to Miss Bondi and the government, miss Haba could

610
00:36:06,440 --> 00:36:10,600
Speaker 7: carry out all the functions, all the non exclusive functions

611
00:36:10,640 --> 00:36:15,120
Speaker 7: of the US Attorney position through delegation. And the judge

612
00:36:15,200 --> 00:36:18,719
Speaker 7: rule that this is not permissible, and this does go

613
00:36:18,840 --> 00:36:23,239
Speaker 7: against other court rulings. So the Ninth Circuit and the

614
00:36:23,280 --> 00:36:26,960
Speaker 7: Court of Appeals for the Federal Circuit have found that

615
00:36:27,440 --> 00:36:30,200
Speaker 7: under a slightly different provision but that also talks about

616
00:36:30,200 --> 00:36:33,200
Speaker 7: functions and duties three three, four, eight of the Vacancies Act,

617
00:36:33,920 --> 00:36:38,319
Speaker 7: that the government can delegate non exclusive duties down to

618
00:36:38,480 --> 00:36:43,080
Speaker 7: someone and there's no problem there. And this is widely

619
00:36:43,200 --> 00:36:46,040
Speaker 7: done in the government, in large part because of a

620
00:36:46,040 --> 00:36:49,840
Speaker 7: broken appointment system. There are many Senate confirmed roles of

621
00:36:49,920 --> 00:36:52,719
Speaker 7: assistance secretary and the like kind of lower levels that

622
00:36:52,760 --> 00:36:57,040
Speaker 7: are delegated down and this ruling would prevent.

623
00:36:56,760 --> 00:36:58,520
Speaker 3: That any final thoughts.

624
00:36:59,200 --> 00:37:04,480
Speaker 7: This ruling by Chief Judge Brand did not actually make

625
00:37:04,600 --> 00:37:09,759
Speaker 7: any constitutional decision because everything could be resolved on statutory grounds.

626
00:37:10,040 --> 00:37:13,440
Speaker 7: There was no need to make constitutional rulings. So that's

627
00:37:13,800 --> 00:37:17,080
Speaker 7: one thing. I think the Constitution was in the background

628
00:37:17,120 --> 00:37:19,840
Speaker 7: as he was interpreting statutes and he says that, but

629
00:37:19,880 --> 00:37:24,160
Speaker 7: there are no constitutional rulings in this decision. The second

630
00:37:24,200 --> 00:37:30,759
Speaker 7: thing that struck me was about when the vacancy occurred, right,

631
00:37:30,800 --> 00:37:33,040
Speaker 7: because we have all these clocks. Right, we had this

632
00:37:33,239 --> 00:37:36,080
Speaker 7: discussion about a clock on the Interim Service under five

633
00:37:36,080 --> 00:37:37,759
Speaker 7: forty six, and then we have a clock under the

634
00:37:37,760 --> 00:37:42,360
Speaker 7: Federal Vacancy's REFORMA Act, and the Office of Legal Counsel

635
00:37:42,520 --> 00:37:44,200
Speaker 7: in an opinion in two thousand and three, held that

636
00:37:44,280 --> 00:37:47,960
Speaker 7: these clocks run separately. But what's interesting to me is

637
00:37:48,000 --> 00:37:51,080
Speaker 7: that the judge in a footnote, actually footnote one hundred

638
00:37:51,120 --> 00:37:53,560
Speaker 7: and fifty three, just to give a flavor of how

639
00:37:53,600 --> 00:37:57,759
Speaker 7: complicated the decision is, he says that he dates the

640
00:37:57,880 --> 00:38:00,799
Speaker 7: vacancy for the purposes of the Federal Vacancy Reform Act,

641
00:38:01,160 --> 00:38:05,400
Speaker 7: as not when the interim service ended. Instead, it's when

642
00:38:06,120 --> 00:38:09,799
Speaker 7: the last Senate confirmed person left. And this matters to

643
00:38:09,840 --> 00:38:14,960
Speaker 7: the Vacancy's Act clocks. So that means that we're counting right.

644
00:38:15,000 --> 00:38:16,840
Speaker 7: Either the three hundred days at the start of an

645
00:38:16,840 --> 00:38:22,560
Speaker 7: administration were counting back to January twentieth. So even if

646
00:38:23,239 --> 00:38:28,160
Speaker 7: the administration found someone who did qualify under the reasoning

647
00:38:28,160 --> 00:38:31,160
Speaker 7: in this opinion, for example, they were Senate confirmed to

648
00:38:31,160 --> 00:38:33,520
Speaker 7: another job, right, that's section three three four.

649
00:38:33,480 --> 00:38:34,040
Speaker 5: Five A two.

650
00:38:34,719 --> 00:38:38,640
Speaker 7: Right, you could make Todd Blanche the acting US Attorney

651
00:38:39,040 --> 00:38:41,440
Speaker 7: for the District of New Jersey under the Federal Vacancy's

652
00:38:41,440 --> 00:38:43,560
Speaker 7: Reform Act, and this judge would not have a problem

653
00:38:43,600 --> 00:38:46,799
Speaker 7: with that. But the time clock for mister Blanche to

654
00:38:46,960 --> 00:38:50,000
Speaker 7: use the title Acting US Attorney for the District of

655
00:38:50,040 --> 00:38:54,000
Speaker 7: New Jersey dates back from when the last Senate confirmed

656
00:38:54,000 --> 00:38:56,640
Speaker 7: person left, and it kind of gets rolled over with

657
00:38:56,640 --> 00:38:59,920
Speaker 7: the new administration, so from January twentieth, So it's actually

658
00:39:00,280 --> 00:39:03,560
Speaker 7: not that much time even if you actually got someone

659
00:39:03,560 --> 00:39:06,879
Speaker 7: who met the requirements under the Federal Vacancies Reform Act.

660
00:39:06,880 --> 00:39:08,759
Speaker 7: And then the last thing I'll say is there is

661
00:39:08,800 --> 00:39:13,960
Speaker 7: this complex reasoning at the end about what is void

662
00:39:14,760 --> 00:39:19,600
Speaker 7: and what can be ratified and Chief Judge Brand is

663
00:39:19,640 --> 00:39:23,560
Speaker 7: trying to distinguish this case from the Federal Circuit case

664
00:39:23,640 --> 00:39:27,560
Speaker 7: and the Ninth Circuit case by saying those cases were

665
00:39:27,600 --> 00:39:32,319
Speaker 7: about kind of what could be ratified under section three

666
00:39:32,440 --> 00:39:37,680
Speaker 7: three four eight, and he's focusing instead on section three

667
00:39:37,760 --> 00:39:40,479
Speaker 7: three four seven, which talks about how the Vacancies Act

668
00:39:40,880 --> 00:39:45,040
Speaker 7: is exclusive with regard to functions and duties of covered positions.

669
00:39:45,640 --> 00:39:49,759
Speaker 7: And so he says, well, Ms Haba can't do all

670
00:39:49,800 --> 00:39:52,719
Speaker 7: of this stuff under three three four seven, but I'm

671
00:39:52,760 --> 00:39:56,000
Speaker 7: going to acknowledge that it seems like anything she could

672
00:39:56,040 --> 00:40:01,040
Speaker 7: try to do is non exclusive, so it could ratified

673
00:40:01,200 --> 00:40:04,600
Speaker 7: under three three four eight by you know, the Attorney

674
00:40:04,640 --> 00:40:08,479
Speaker 7: General for example, someone higher up. And so this gets

675
00:40:08,560 --> 00:40:10,880
Speaker 7: into a little bit of weirdness where the judge at

676
00:40:10,920 --> 00:40:14,040
Speaker 7: the end is saying, well, she can't do it, but

677
00:40:14,160 --> 00:40:18,279
Speaker 7: if she does it, someone else could ratify it. And

678
00:40:18,360 --> 00:40:21,319
Speaker 7: so I think this issue about three three four seven

679
00:40:21,360 --> 00:40:23,920
Speaker 7: and three three four eight. I think that's really going

680
00:40:24,000 --> 00:40:26,960
Speaker 7: to be the heart of the government's appeal, along with

681
00:40:27,040 --> 00:40:29,520
Speaker 7: this idea of the timing of the first assistant.

682
00:40:29,880 --> 00:40:33,480
Speaker 1: Thanks so much, Ed for taking us through this complex area.

683
00:40:33,920 --> 00:40:38,120
Speaker 1: That's Professor and Joseph O'Connell of Stanford Law School. And

684
00:40:38,160 --> 00:40:40,320
Speaker 1: that's it for this edition of The Bloomberg Law Show.

685
00:40:40,680 --> 00:40:43,000
Speaker 1: Remember you can always get the latest legal news on

686
00:40:43,080 --> 00:40:47,359
Speaker 1: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,

687
00:40:47,520 --> 00:40:52,560
Speaker 1: and at www dot Bloomberg dot com slash podcast Slash Law,

688
00:40:52,960 --> 00:40:55,560
Speaker 1: And remember to tune into The Bloomberg Law Show every

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00:40:55,600 --> 00:40:59,480
Speaker 1: weeknight at ten pm Wall Street Time. I'm June Grosso

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00:40:59,600 --> 00:41:01,200
Speaker 1: and you're listening to Bloomberg.

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Speaker 3: Hmm