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

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Speaker 1: Employers generally have the power to set rules in the workplace,

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Speaker 1: and vaccination mandates for influenz and other infectious diseases have

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Speaker 1: been commonplace and healthcare organizations for years. In addition, the

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Speaker 1: Equal Employment Opportunity Commission has recently confirmed that employers can

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Speaker 1: require workers to get vaccinated against COVID nineteen, although they

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Speaker 1: may need to make reasonable accommodations due to a health

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Speaker 1: condition or religious belief. But that hasn't stopped some workers

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Speaker 1: from filing lawsuits against employers requiring vaccinations. There are suits

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Speaker 1: against Houston Methodist Hospital, the Los Angeles Unified School District,

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Speaker 1: a sheriff's department in North Carolina, and Attention and a

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Speaker 1: detention center in New Mexico. Joining me is Eric Fellman,

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Speaker 1: a professor of law, health policy, and medical ethics at

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Speaker 1: the University of Pennsylvania, tell us about this lawsuit filed

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Speaker 1: by hospital employees against Houston Methodist Hospital. Yeah, I mean,

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Speaker 1: it's not much of a lawsuit from a legal point

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Speaker 1: of view, I don't think, but it certainly expresses the

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Speaker 1: frustration or anger that we've seen. I think for quite

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Speaker 1: a while in the anti vaccination community. That's really come

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Speaker 1: out in full force, I think during COVID nineteen. So

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Speaker 1: I take the lawsuit not so much as articulating a

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Speaker 1: set of really complicated legal issues, though it does manage

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Speaker 1: to raise one issue, but much more a sign of

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Speaker 1: the distress and distrust of the medical establishment, as we've

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Speaker 1: been seeing really over and over again over the past

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Speaker 1: fifteen months or so. What are the alleging is the

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Speaker 1: basis for their claim that the hospital shouldn't be able

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Speaker 1: to tell them to get vaccinated. So the claim they's

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Speaker 1: been the most time on is, unfortunately, I think, from

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Speaker 1: their perspective, the one that's likely to get the least

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Speaker 1: sympathy from any court that's actually focused on the law,

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Speaker 1: and that's the claim that they are they being. Those

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Speaker 1: who are being required to be vaccinated are basically the

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Speaker 1: same as people who would be subject to medical experimentation.

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Speaker 1: And the analogy that's drawn very sharply in the lawsuits

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Speaker 1: is that this is akin to the medical experimentation by

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Speaker 1: the Nazis on those who are in the concentration camps. Then,

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Speaker 1: of course those notorious medical experiments which were litigated and

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Speaker 1: brought to light during the Nuremberg trial involved people who

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Speaker 1: were involuntarily confined and on whom treatments quote unquote were

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Speaker 1: tried that had absolutely no data, and the things that

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Speaker 1: were done to the prisoners are absolutely horrific. The litigants here,

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Speaker 1: the lawyers, are claiming what we have as a group

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Speaker 1: of individuals who are being forced against their will to

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Speaker 1: subject themselves to this untested vaccine. And that's just wrong scientifically,

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Speaker 1: and I think it's wrong morally, and it's wrong legally.

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Speaker 1: There's a distinction that's not drawn in this lawsuit between

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Speaker 1: mandatory vaccination and compulsory vaccination. Compulsory vaccination literally is holding

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Speaker 1: people down and jabbing a needle in their arms and

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Speaker 1: forcing them to get vaccinated against their will. Mandatory vaccination

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Speaker 1: isn't forcing anyone to get vaccinated. Nobody in the Houston

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Speaker 1: hospital has to get vaccinated. They have options, and if

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Speaker 1: they choose to not get vaccinated, depending upon their reason,

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Speaker 1: they may find themselves put in a different position in

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Speaker 1: the hospital, they may find themselves unemployed. But that's different

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Speaker 1: than forcing them to get the vaccine. So that's the

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Speaker 1: weakest of claims here, and what's one of the stronger

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Speaker 1: claims made in the lawsuit. The stronger claim made in

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Speaker 1: this lawsuit, and and it's an issue that's been vatted

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Speaker 1: about on legal laws and others, is whether or not

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Speaker 1: the fact that the COVID ninet team vaccines that are

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Speaker 1: currently authorized to be used in the US are authorized

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Speaker 1: on their emergency you thought zation whether the eu A

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Speaker 1: status of these vaccines means that they cannot be mandated,

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Speaker 1: And it gets into really the regulatory we's here, But

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Speaker 1: there's a section of the regulations about the Emergency Youth

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Speaker 1: Authorization that discusses the requirements that people who are receiving

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Speaker 1: a vaccine approved under Emergency Youth Authorization have to be

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Speaker 1: told about the consequences of accepting and not accepting, etcetera.

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Speaker 1: And that's been read by some and not inappropriately, as

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Speaker 1: suggesting that eu A vaccines cannot be mandated. Anothers say,

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Speaker 1: there's really nothing about the language and the regulation that

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Speaker 1: would mean that mandates were illegal or inappropriate, And so

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Speaker 1: that's where the legal fight is. Wearing a mask became

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Speaker 1: a political issue, and now vaccines are becoming a political issue.

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Speaker 1: Are there any political motivations behind these lawsuits? And one

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Speaker 1: thing about the Houston lawsuit I think really underscores the

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Speaker 1: degree to which one needs to look at this as

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Speaker 1: a political statement or or a sort of an ideological folly,

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Speaker 1: rather than a really serious effort at legal articulation. The

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Speaker 1: lawyer who's representing the plaintiffs against Houston Hospital as a

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Speaker 1: gentleman named Jared wood Fille. He was chair of the

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Speaker 1: Republican Party in Houston for over a decade and has

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Speaker 1: recently been involved in the Stop the Steal litigation. So

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Speaker 1: he's someone with an iron laws agenda, and fair enough

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Speaker 1: to people have ideological agenda, But I think the lawsuit

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Speaker 1: here is really much more about putting that agenda into

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Speaker 1: the courts, bringing the agenda to the public through media

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Speaker 1: attention and the interviews like these, than it is a

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Speaker 1: serious effort at a lawyer. And when the FDA completes

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Speaker 1: the process of approval for the vaccine, will the basis

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Speaker 1: of this lawsuit then disappear? I think when you know

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Speaker 1: the FBIA is expected to provide uh full approval of

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Speaker 1: the vaccines at some point in the fall, I think

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Speaker 1: no one is quite sure exactly when, but I believe

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Speaker 1: both MADERNA Adviser have approved I have have applied for full approval.

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Speaker 1: At the point at which the vaccines received full approval,

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Speaker 1: I think a lot of the steam behind these lawsuits

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Speaker 1: is likely to disappear because it's going to be really

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Speaker 1: tough to make any claim at all about UH the

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Speaker 1: language and the regulation of Emergency Youth authorization being relevant anymore.

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Speaker 1: I may not stop the lawsuits. There have been plenty

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Speaker 1: of losses around vaccine mandates that did not involve the

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Speaker 1: eu A. But the novelty of the COVID nineteen vaccine

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Speaker 1: is that it is approved under eu A, and so

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Speaker 1: it would be the first or is the first vaccine

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Speaker 1: under eu A that various entities, universities, private businesses, hospitals,

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Speaker 1: et cetera have been mandated, So it's really the eu

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Speaker 1: A who that's been the focus. Once that's gone, I

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Speaker 1: think those who are bringing lawsuits are going to have

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Speaker 1: to find a different basis on which to make their claims.

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Speaker 1: Many employers and institutions have apparently received letters threatening lawsuits

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Speaker 1: against vaccination mandates. Does the threat of a lawsuit stop

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Speaker 1: a lot of employers from mandating vaccines? Yeah? So there

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Speaker 1: has been a fairly well coordinated national effort I think

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Speaker 1: driven by several organizations that are strongly objecting to the

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Speaker 1: idea of the COVID nineteen vaccine mandated to find sympathetic

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Speaker 1: lawyers and law firms around the country to bring these

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Speaker 1: claims to the courts. And so you have a a

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Speaker 1: series of lawsuits that would percolate around the country making

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Speaker 1: similar arguments. And I think the hope is and and

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Speaker 1: it's and it's not a bad political strategy. The hope

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Speaker 1: is that's going to serve to dissuade those who might

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Speaker 1: otherwise have mandated the vaccine to back off. And I

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Speaker 1: think there's probably some truth to that that nobody likes

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Speaker 1: to be sued, particularly to the degree that one is

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Speaker 1: being sued by one employee by one's employees. I think

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Speaker 1: what you end up seeing is the deterioration of workplace morales.

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Speaker 1: You have workers who are unhappy. You have divisiveness between

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Speaker 1: the workers who say they wouldn't go to work unless

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Speaker 1: everyone was vaccinated versus those who say I'll never get vaccinated.

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Speaker 1: You have arguments about privacy, about freedom, about fundamental values.

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Speaker 1: So even without the lawsuit, I think most employers, most

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Speaker 1: of the time would prefer to see everybody embrace the

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Speaker 1: idea of vaccination without a mandate, but in a variety

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Speaker 1: of settings. Let's say, airlines would be an obvious one,

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Speaker 1: cruise shifts would be another. Academic institutions and medical institutions

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Speaker 1: certainly another. Relying on volunteerism, while would be nice, probably

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Speaker 1: isn't enough. So you know, University of Pennsylvania Hospitals, the

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Speaker 1: hospital where at the university where I work, has mandated

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Speaker 1: vaccines for faculty and staff. I believe that am going

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Speaker 1: to be increasingly the trend across the country. Just as

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Speaker 1: hospitals have mandated the influenza vaccine for faculty and staff,

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Speaker 1: universities are increasingly mandating it. But businesses, I think, if

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Speaker 1: they can find ways of mandating it and happily stay

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Speaker 1: out of the courts, are likely to probably go in

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Speaker 1: that direction rather than the direction of a vaccine mandate.

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Speaker 1: Had there been lawsuits against the hospitals or the universities

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Speaker 1: who mandate the influenza vaccine, there have been lawsuits, and

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Speaker 1: I think the law has been pretty clear since the

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Speaker 1: beginning of the twentieth century that there's a strong public

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Speaker 1: health justification for mandating vaccines, and that's been the case

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Speaker 1: in schools. That's indicate in communities more broadly, and so

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Speaker 1: while there has been litigation, that litigation has generally failed. Um,

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Speaker 1: just just I think that to add one more point

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Speaker 1: to the question you raised a second ago. Uh, there

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Speaker 1: are some schools in the University of California or cal

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Speaker 1: state system. I think is a good example of one

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Speaker 1: that I suppose with an eye towards avoiding litigation that

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Speaker 1: they would find to be bad publicity, time consuming, and expensive.

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Speaker 1: Has said that the vaccine is the COVID nineteen vaccine

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Speaker 1: is required a students, faculty, and staff once the FDA

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Speaker 1: provides full approval of the vax vaccine, but not before.

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Speaker 1: So they're sidestepping, I think, thoughtfully and cleverly the possibility

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Speaker 1: of litigation based upon the emergency youth authorization of the

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Speaker 1: vaccine and saying we will mandate it, but not until

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Speaker 1: it's fully approved because we're we're pretty confident that we're

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Speaker 1: on strong legal ground even if we're to mandated sooner,

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Speaker 1: but we know where on very firmly ground if we

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Speaker 1: put it off, And so putting it off has been

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Speaker 1: the you see strategy, and it's increasingly the strategy. I

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Speaker 1: think it's some other institution, the E E. O C.

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Speaker 1: The Equal Employment Opportunity Commission recently confirmed that employers can

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Speaker 1: require workers to get vaccinated. Does that carry any weight

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Speaker 1: in a lawsuit? The e o c S recommendation the

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Speaker 1: you know, it's going to depend upon the state. There.

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Speaker 1: There are a variety of states that have, either through

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Speaker 1: executive order or legislative action or both past laws that

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Speaker 1: prohibit vaccine mandates. Are certainly if they don't prohibit the mandate,

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Speaker 1: they prohibit the enforcement of the mandate by telling employers

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Speaker 1: both private and public, that they cannot ask anybody to

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Speaker 1: demon straight or provide proof that they've been vaccinated, and

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Speaker 1: if they do, for example, in Florida, they're subject to

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Speaker 1: a fine of up to five thousand dollars. So I

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Speaker 1: think in a place where there's a state law, that

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Speaker 1: state law is likely to override UH federal guidelines. Here

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Speaker 1: from the e o C that said, there are lots

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Speaker 1: of states that don't have those laws. And also that's

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Speaker 1: that I think the e o c S guidance is

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Speaker 1: really important because it didn't just say it was okay

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Speaker 1: to mandate vaccines UH by employers. It said that bandating

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Speaker 1: the vaccines and most circumstances would not be a violation

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Speaker 1: of GENA, the Genetic Information on Discrimination Act, or of

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Speaker 1: Title seven of the Civil Rights Act, which prohibits discrimination

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Speaker 1: based upon race and religion and other categories, or of

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Speaker 1: the Americans with Disabilities Act. And then it also spoke

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Speaker 1: in some detail about the kind of incentives that employ

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Speaker 1: could provide to employees so that they could nudge people

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Speaker 1: towards getting vaccinated without mandating vaccines, and that I think

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Speaker 1: it's become an increasingly important way of getting people vaccinated

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Speaker 1: without requiring them to be vaccinated. Offer the money, offer

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Speaker 1: them a day off, offer them some sort of a

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Speaker 1: thanks for being on the Bloomberg Laws Show. That's Professor

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Speaker 1: Eric Felban of the University of Pennsylvania Law School. The

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Speaker 1: Biden Administration's decision to defend former President Donald Trump in

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Speaker 1: a defamation lawsuit over his rape denial surprised many and

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Speaker 1: angered some. In a letter to Attorney General Merrick Garland,

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Speaker 1: the House Judiciary Committee called the decision misguided and demanded

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Speaker 1: that the Johnstice Department reverse its decision to defend the case.

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Speaker 1: The Johnstice Department's court filing strongly back Trump's assertion that

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Speaker 1: his calling advice columnist E. Jene Carol, a liar in

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Speaker 1: after she accused him of raping her in the ninety

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Speaker 1: intees was an official act shielded from lawsuit joining me?

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Speaker 1: Is Bloomberg Legal reporter Eric Larson start with telling us

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Speaker 1: about this law that would allow former President Trump to

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Speaker 1: dodge a defamation lawsuit. So it's it's fairly acure law

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Speaker 1: that doesn't pop up a lot in the news, but

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Speaker 1: it's called the Westfall Act of nine UM. What it

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Speaker 1: does is it protects federal employees government employees UM from

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Speaker 1: litigation against them civil lawsuits UM filed against them that

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Speaker 1: relates to their job duties. So one example that popped

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Speaker 1: the document of that car. This is a type of

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Speaker 1: law that would get that suit thrown out because they

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Speaker 1: it would make the United States government essentially the defendant

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Speaker 1: rather than the individuals. So the position of the Trump

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Speaker 1: administration was that his alleged defamation ee, Gene Carroll, would

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Speaker 1: fall under this law. What did the government argue? Why

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Speaker 1: did they think that this applied to Trump in this case?

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Speaker 1: So the Trump administration argued that when Ejing Carroll accused

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Speaker 1: him in two thousand nineteen of raping tour of two

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Speaker 1: decades ago, and then the saming Carol by denying it. Uh,

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Speaker 1: the government argued that the president should be removed from

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Speaker 1: the lawsuit and that the United States government should be

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Speaker 1: the defendant in the case instead, because under the West

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Speaker 1: Ball actually argued Trump was carrying out a presidential duty

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Speaker 1: of some sort by denying the claims made by Eejan Carroll.

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Speaker 1: And it's part of that that motion if the government

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Speaker 1: is substituted for Trump, and essentially the cases over the

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Speaker 1: cases dismissed because you can't see the government for defamation.

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Speaker 1: So this was litigated. Tell us what the lower court

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Speaker 1: judge decided in the case and why so in October

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Speaker 1: that the report judge in Manhattan disagreed with the Trump

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Speaker 1: administration and ruled in favor of aging Carol and said

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Speaker 1: that Trump was not carrying out a presidential duty when

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Speaker 1: he denied her allegations and essentially accused her of lying

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Speaker 1: of making this up for political purposes um, claiming that

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Speaker 1: she had made similar allegations against other men um which

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Speaker 1: wasn't actually true. And it also said frankly that she

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Speaker 1: wasn't his type, or to use his word, So he

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Speaker 1: came out pretty strongly denying Miss Carroll's claims, and she

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Speaker 1: accused him of defamation. And when the government tried to

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Speaker 1: have the case thrown out under the west Ball Act,

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Speaker 1: the federal judge just disagreed, and now, uh, there's an

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Speaker 1: appeal underway. The appeal was filed before President Biden was

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Speaker 1: elected h so when he won, the judge said, well,

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Speaker 1: let's wait and see what the Biden administration has to

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Speaker 1: say about whether or not the west Ball Act applied

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Speaker 1: to this case. So everyone went in the case was

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Speaker 1: just waiting to see what uh Merritt Darland k would say.

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Speaker 1: And this was sort of a surprise when they came

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Speaker 1: out with the exact same argument that the Trump administration

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Speaker 1: has not only a surprise, but it's really caused a

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Speaker 1: lot of consternation, so much so that the Democrats on

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Speaker 1: the House Judiciary Committee just sent a letter to Merrick

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Speaker 1: Garland to ask them to change their position. Let's talk

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Speaker 1: about what might be behind this, because during the campaign,

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Speaker 1: Biden criticized the d o J intervening in the case.

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Speaker 1: Now the White House says it wasn't consulted by Justice

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Speaker 1: on the decision to file the brief or its contents.

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Speaker 1: Is the Department of Justice trying to make a point

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Speaker 1: about its independence here, Well, I don't know if they're

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Speaker 1: trying to make a statement about it, but it certainly

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Speaker 1: does suggest that, uh, the d o J is coming

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Speaker 1: up with their their own argument here. That is different

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Speaker 1: from what Biden said on on the campaign trail. So

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Speaker 1: Biden said that he was going to keep the d

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Speaker 1: o J on lanky, wasn't going to try to use

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Speaker 1: it as a personal law firm, as the accused Trump

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Speaker 1: of doing so. The fact that they have the President

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Speaker 1: and the d o J have a different views on

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Speaker 1: this could be explained as just the d J doing

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Speaker 1: what it does. Of course, others see it as as

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Speaker 1: the d o JA trying to protect the office of

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Speaker 1: the presidency at the expense of other people who might

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Speaker 1: want to do the president. But we we really don't know.

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Speaker 1: We can say though, that, as the DJ pointed out

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Speaker 1: under both Trump and Biden, that the west Ball Act

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Speaker 1: has been applied to previous president um including Barack Obama

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Speaker 1: and Bill Clinton George W. Bush, So it's not unusual

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Speaker 1: for lawsuits against presidents to be dismissed under this law.

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Speaker 1: What Aging Carol and her lawyers say is that it's

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Speaker 1: just not the same. The cases against or other presidents

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Speaker 1: and other federal employees are much more related to something

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Speaker 1: pertaining to their job duties as federal government employees, and

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Speaker 1: that ablicly denying a rape allegation from twenty years ago

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Speaker 1: doesn't fall under any kind of duty. So that's why

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Speaker 1: I think Eating Carol and her lawyers thought that they

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Speaker 1: were going to get Biden d O J on their side,

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Speaker 1: but it doesn't turn out that way. That DJ is

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Speaker 1: is putting a very applying this very broadly. Um, not

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Speaker 1: just the Biden but future presidents as well. Eric. The

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Speaker 1: law has also been used to block a wrongful death

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Speaker 1: and defamation lawsuit against former Secretary of State Hillary Clinton,

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Speaker 1: and the language by the DC Federal Appeals Court it

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Speaker 1: was pretty broad, that's right. Um. This was a case

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Speaker 1: that was filed against Hillary Clinton by two family members

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Speaker 1: of two individuals who were killed in that attack on

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Speaker 1: the US facility in Benghazi. Um. They accused her of

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Speaker 1: defaming them. They also accused her of causing the wrongful

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Speaker 1: death of their loved ones by all really sending sensitive

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Speaker 1: information about that facility over her private email server. UM.

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Speaker 1: So you know this case was thrown out under under

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Speaker 1: the west Ball Act. Um. The judge um in the

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Speaker 1: Federal appeals court agreed that this related to all of

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Speaker 1: this related to do Hillary Clinton's duty of the Secretary

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Speaker 1: of State and the best precisely what the west Ball

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Speaker 1: Act was passed for. UM, And you're correct that it's

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Speaker 1: say the Federal Peals Court in Washington did use very

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Speaker 1: broad language saying that there was extensive precedent had made

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Speaker 1: it clear um that alleging of federal employees violated policy

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Speaker 1: or even laws in the course of her employment, including

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Speaker 1: specific allegations of defamation or potentially criminal activities, does not

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Speaker 1: take that conduct outside the scope of employment. Kind of

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Speaker 1: a long quote, but it really does show how broadly

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Speaker 1: the Washington Appeals Court interpreted that. Of course, the case

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Speaker 1: we're talking about is now before there's a second circuit

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Speaker 1: in New York. Uh, still be interesting to see how

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Speaker 1: how their decision comes down. It's Trump raising a similar

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Speaker 1: defense in lawsuits against him over the Capital insurrection. Yeah,

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Speaker 1: that's really interesting because he is and uh, the d

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Speaker 1: J hasn't come down with um with any sort of

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Speaker 1: determination on that yet. But I think that there are

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Speaker 1: are people who are concerned. You know, we quoted one

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Speaker 1: of them and one of our stories saying that they

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Speaker 1: were very concerned about its broad interpretation. UM. And it's

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Speaker 1: it's interesting too because you could see how the arguments

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Speaker 1: from both sides would apply to this case as well. UM.

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Speaker 1: The difference thing in this case, Uh, the president then

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Speaker 1: President Trump was making comments that really worked directly related

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Speaker 1: to UM, an election that it just happened, it relates

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Speaker 1: to his election. UM. Obviously we know what happened to

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Speaker 1: when people took what he was saying literally and believed, Um,

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Speaker 1: his his wise about the election being stolen. UM. But

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Speaker 1: you know, clearly they're going to argue that this was

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Speaker 1: just his job as president. He was just making commentary

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Speaker 1: as presidents do. And the other side is going to

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Speaker 1: argue he went way too far. That conciding an insurrection

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Speaker 1: surely is not what Congress intended when they passed through

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Speaker 1: Westball Act. So again, it's a it's going to be

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Speaker 1: another test of this this law. I want to talk

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Speaker 1: a little bit about the lawyer who is representing E. G.

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Speaker 1: Carol in her lawsuit against Trump, ROBERTA. Kaplan because you

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Speaker 1: did a story on her first of all, tell us

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Speaker 1: a little bit about her and and her background. Yeah, So,

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Speaker 1: Robbie Chaplin, she is a civil rights lawyer. Um. She

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Speaker 1: is one of the lawyers who helped pay the way

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Speaker 1: for the legalization of things that marriage in the Supreme Court.

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Speaker 1: She argued the case that overturned the Defense of Marriage Actuh.

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Speaker 1: So she also helps campaign for Lary Clinton. UM knows

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Speaker 1: her and and and she was confident that she was

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Speaker 1: going to win and perhaps to get a job at

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Speaker 1: the Justice Department. Of course that didn't happen, so she left.

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Speaker 1: She had left her her job at Paul White, where

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Speaker 1: she's been for over two decades, and instead of going

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Speaker 1: to work for the Justice Department under Hillary Clinton, decided

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Speaker 1: to found her own law firms. So that's what she did. Um.

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Speaker 1: And they've been taking on, uh, you know a lot

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Speaker 1: of very interesting cases, teaching Carol's cases one of them.

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Speaker 1: They're also representing Trump. Meet Mary Trump and her fraud

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Speaker 1: lawsuit against the President, accusing him of ripping her up

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Speaker 1: millions of dollars um. They're also running lawsuits. One of

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Speaker 1: the first lawsuits they filed with against some of the

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Speaker 1: organizers of the United Rights Rally and Charlottesville, like so

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Speaker 1: many injuriespended deaths, um and that's potentially going to trial

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Speaker 1: in October. But on top of that, they're doing all

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Speaker 1: kinds of spent regular commercial work as well and looking

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Speaker 1: for big Wall Street client and fortune side hunter companies,

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Speaker 1: things like that, doing commercial work, white collar crime, representing

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Speaker 1: companies in congressional investigations and things like that. So she's

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Speaker 1: attracting a lot of in demand young lawyers because of

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Speaker 1: the public interest work that she does, or just because

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Speaker 1: of the nature of the firm. Well, she says that

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Speaker 1: it's both. These are she describes their their lawyers they're

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Speaker 1: hiring and um, you know, very talented younger lawyers who

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Speaker 1: are very interested in public interest work. They're kind of

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Speaker 1: work that they're they're putting at the center of their firm,

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Speaker 1: but also want to, um, you know, get involved in

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Speaker 1: in corporate litigation, the kind of the kind of legal

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Speaker 1: work that's so common in you know, in New York

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Speaker 1: Wall Street related stuff. So really that's what they're telling

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Speaker 1: where they can work on both, um, both types of

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Speaker 1: law here and and surrive doing both. That's that's how

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Speaker 1: they pitch it. To their thanks for being on the show. Eric.

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Speaker 1: That's Bloomberg Legal reporter Eric Larson, and that's it for

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Speaker 1: this edition of The Bloomberg Law Show. Remember you can

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Speaker 1: always get the latest legal moves on our Bloomberg Lawn podcast.

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Speaker 1: You can find them on Apple Podcasts, Spotify, and at

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Speaker 1: www dot Bloomberg dot com, slash podcast slash Law. I'm

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Speaker 1: June Grosso and you're listening to Bloomberg