WEBVTT - Workers Sue Over Vaccine Mandates 0:00:03.160 --> 0:00:07.960 This is Bloomberg Law with June Brussel from Bloomberg Radio. 0:00:10.600 --> 0:00:14.080 Employers generally have the power to set rules in the workplace, 0:00:14.440 --> 0:00:18.319 and vaccination mandates for influenz and other infectious diseases have 0:00:18.480 --> 0:00:22.520 been commonplace and healthcare organizations for years. In addition, the 0:00:22.680 --> 0:00:27.120 Equal Employment Opportunity Commission has recently confirmed that employers can 0:00:27.160 --> 0:00:31.640 require workers to get vaccinated against COVID nineteen, although they 0:00:31.640 --> 0:00:34.600 may need to make reasonable accommodations due to a health 0:00:34.640 --> 0:00:38.400 condition or religious belief. But that hasn't stopped some workers 0:00:38.479 --> 0:00:43.400 from filing lawsuits against employers requiring vaccinations. There are suits 0:00:43.440 --> 0:00:48.000 against Houston Methodist Hospital, the Los Angeles Unified School District, 0:00:48.120 --> 0:00:51.279 a sheriff's department in North Carolina, and Attention and a 0:00:51.280 --> 0:00:54.960 detention center in New Mexico. Joining me is Eric Fellman, 0:00:55.160 --> 0:00:58.080 a professor of law, health policy, and medical ethics at 0:00:58.080 --> 0:01:02.800 the University of Pennsylvania, tell us about this lawsuit filed 0:01:02.800 --> 0:01:08.080 by hospital employees against Houston Methodist Hospital. Yeah, I mean, 0:01:08.240 --> 0:01:10.600 it's not much of a lawsuit from a legal point 0:01:10.640 --> 0:01:13.959 of view, I don't think, but it certainly expresses the 0:01:14.200 --> 0:01:18.400 frustration or anger that we've seen. I think for quite 0:01:18.440 --> 0:01:22.360 a while in the anti vaccination community. That's really come 0:01:22.400 --> 0:01:26.119 out in full force, I think during COVID nineteen. So 0:01:26.280 --> 0:01:29.840 I take the lawsuit not so much as articulating a 0:01:29.880 --> 0:01:33.120 set of really complicated legal issues, though it does manage 0:01:33.160 --> 0:01:36.600 to raise one issue, but much more a sign of 0:01:36.840 --> 0:01:41.800 the distress and distrust of the medical establishment, as we've 0:01:41.840 --> 0:01:44.160 been seeing really over and over again over the past 0:01:44.160 --> 0:01:46.920 fifteen months or so. What are the alleging is the 0:01:46.920 --> 0:01:51.000 basis for their claim that the hospital shouldn't be able 0:01:51.040 --> 0:01:54.080 to tell them to get vaccinated. So the claim they's 0:01:54.120 --> 0:01:57.880 been the most time on is, unfortunately, I think, from 0:01:57.880 --> 0:02:00.520 their perspective, the one that's likely to get the least 0:02:00.520 --> 0:02:03.960 sympathy from any court that's actually focused on the law, 0:02:04.040 --> 0:02:08.160 and that's the claim that they are they being. Those 0:02:08.200 --> 0:02:12.080 who are being required to be vaccinated are basically the 0:02:12.160 --> 0:02:16.239 same as people who would be subject to medical experimentation. 0:02:16.360 --> 0:02:20.080 And the analogy that's drawn very sharply in the lawsuits 0:02:20.680 --> 0:02:24.720 is that this is akin to the medical experimentation by 0:02:24.760 --> 0:02:28.320 the Nazis on those who are in the concentration camps. Then, 0:02:28.360 --> 0:02:32.880 of course those notorious medical experiments which were litigated and 0:02:33.120 --> 0:02:36.560 brought to light during the Nuremberg trial involved people who 0:02:36.560 --> 0:02:41.160 were involuntarily confined and on whom treatments quote unquote were 0:02:41.200 --> 0:02:44.280 tried that had absolutely no data, and the things that 0:02:44.320 --> 0:02:47.960 were done to the prisoners are absolutely horrific. The litigants here, 0:02:48.040 --> 0:02:50.280 the lawyers, are claiming what we have as a group 0:02:50.280 --> 0:02:54.000 of individuals who are being forced against their will to 0:02:54.360 --> 0:03:00.920 subject themselves to this untested vaccine. And that's just wrong scientifically, 0:03:00.919 --> 0:03:03.240 and I think it's wrong morally, and it's wrong legally. 0:03:03.639 --> 0:03:07.000 There's a distinction that's not drawn in this lawsuit between 0:03:07.000 --> 0:03:12.400 mandatory vaccination and compulsory vaccination. Compulsory vaccination literally is holding 0:03:12.440 --> 0:03:14.880 people down and jabbing a needle in their arms and 0:03:15.040 --> 0:03:18.800 forcing them to get vaccinated against their will. Mandatory vaccination 0:03:18.919 --> 0:03:22.440 isn't forcing anyone to get vaccinated. Nobody in the Houston 0:03:22.560 --> 0:03:25.440 hospital has to get vaccinated. They have options, and if 0:03:25.440 --> 0:03:28.720 they choose to not get vaccinated, depending upon their reason, 0:03:28.840 --> 0:03:31.679 they may find themselves put in a different position in 0:03:31.720 --> 0:03:34.720 the hospital, they may find themselves unemployed. But that's different 0:03:34.720 --> 0:03:37.000 than forcing them to get the vaccine. So that's the 0:03:37.040 --> 0:03:40.400 weakest of claims here, and what's one of the stronger 0:03:40.440 --> 0:03:43.960 claims made in the lawsuit. The stronger claim made in 0:03:44.040 --> 0:03:46.960 this lawsuit, and and it's an issue that's been vatted 0:03:47.000 --> 0:03:50.440 about on legal laws and others, is whether or not 0:03:50.760 --> 0:03:54.120 the fact that the COVID ninet team vaccines that are 0:03:54.160 --> 0:03:58.360 currently authorized to be used in the US are authorized 0:03:58.400 --> 0:04:01.560 on their emergency you thought zation whether the eu A 0:04:01.760 --> 0:04:06.440 status of these vaccines means that they cannot be mandated, 0:04:07.120 --> 0:04:11.440 And it gets into really the regulatory we's here, But 0:04:11.520 --> 0:04:17.240 there's a section of the regulations about the Emergency Youth 0:04:17.320 --> 0:04:22.839 Authorization that discusses the requirements that people who are receiving 0:04:23.120 --> 0:04:26.960 a vaccine approved under Emergency Youth Authorization have to be 0:04:27.000 --> 0:04:31.000 told about the consequences of accepting and not accepting, etcetera. 0:04:31.400 --> 0:04:34.840 And that's been read by some and not inappropriately, as 0:04:34.880 --> 0:04:39.080 suggesting that eu A vaccines cannot be mandated. Anothers say, 0:04:39.080 --> 0:04:42.080 there's really nothing about the language and the regulation that 0:04:42.240 --> 0:04:45.840 would mean that mandates were illegal or inappropriate, And so 0:04:46.080 --> 0:04:49.320 that's where the legal fight is. Wearing a mask became 0:04:49.360 --> 0:04:53.520 a political issue, and now vaccines are becoming a political issue. 0:04:53.760 --> 0:04:57.840 Are there any political motivations behind these lawsuits? And one 0:04:57.839 --> 0:05:01.960 thing about the Houston lawsuit I think really underscores the 0:05:02.040 --> 0:05:04.719 degree to which one needs to look at this as 0:05:04.800 --> 0:05:10.520 a political statement or or a sort of an ideological folly, 0:05:10.760 --> 0:05:15.120 rather than a really serious effort at legal articulation. The 0:05:15.440 --> 0:05:19.039 lawyer who's representing the plaintiffs against Houston Hospital as a 0:05:19.080 --> 0:05:22.920 gentleman named Jared wood Fille. He was chair of the 0:05:22.960 --> 0:05:26.000 Republican Party in Houston for over a decade and has 0:05:26.040 --> 0:05:29.919 recently been involved in the Stop the Steal litigation. So 0:05:30.240 --> 0:05:32.800 he's someone with an iron laws agenda, and fair enough 0:05:32.880 --> 0:05:36.040 to people have ideological agenda, But I think the lawsuit 0:05:36.080 --> 0:05:40.640 here is really much more about putting that agenda into 0:05:40.680 --> 0:05:44.000 the courts, bringing the agenda to the public through media 0:05:44.000 --> 0:05:46.640 attention and the interviews like these, than it is a 0:05:46.680 --> 0:05:50.960 serious effort at a lawyer. And when the FDA completes 0:05:51.080 --> 0:05:55.120 the process of approval for the vaccine, will the basis 0:05:55.160 --> 0:05:59.240 of this lawsuit then disappear? I think when you know 0:05:59.320 --> 0:06:03.680 the FBIA is expected to provide uh full approval of 0:06:03.720 --> 0:06:06.320 the vaccines at some point in the fall, I think 0:06:06.400 --> 0:06:08.679 no one is quite sure exactly when, but I believe 0:06:08.720 --> 0:06:12.600 both MADERNA Adviser have approved I have have applied for full approval. 0:06:13.160 --> 0:06:16.200 At the point at which the vaccines received full approval, 0:06:16.240 --> 0:06:19.800 I think a lot of the steam behind these lawsuits 0:06:20.720 --> 0:06:24.000 is likely to disappear because it's going to be really 0:06:24.040 --> 0:06:27.359 tough to make any claim at all about UH the 0:06:27.520 --> 0:06:32.680 language and the regulation of Emergency Youth authorization being relevant anymore. 0:06:33.240 --> 0:06:35.440 I may not stop the lawsuits. There have been plenty 0:06:35.480 --> 0:06:39.440 of losses around vaccine mandates that did not involve the 0:06:39.480 --> 0:06:43.760 eu A. But the novelty of the COVID nineteen vaccine 0:06:43.800 --> 0:06:46.000 is that it is approved under eu A, and so 0:06:46.200 --> 0:06:48.760 it would be the first or is the first vaccine 0:06:49.160 --> 0:06:56.560 under eu A that various entities, universities, private businesses, hospitals, 0:06:56.600 --> 0:06:59.560 et cetera have been mandated, So it's really the eu 0:06:59.640 --> 0:07:02.440 A who that's been the focus. Once that's gone, I 0:07:02.480 --> 0:07:04.320 think those who are bringing lawsuits are going to have 0:07:04.360 --> 0:07:06.840 to find a different basis on which to make their claims. 0:07:07.560 --> 0:07:13.840 Many employers and institutions have apparently received letters threatening lawsuits 0:07:13.880 --> 0:07:19.280 against vaccination mandates. Does the threat of a lawsuit stop 0:07:19.320 --> 0:07:24.400 a lot of employers from mandating vaccines? Yeah? So there 0:07:24.800 --> 0:07:29.920 has been a fairly well coordinated national effort I think 0:07:31.320 --> 0:07:36.640 driven by several organizations that are strongly objecting to the 0:07:36.680 --> 0:07:41.640 idea of the COVID nineteen vaccine mandated to find sympathetic 0:07:41.720 --> 0:07:44.960 lawyers and law firms around the country to bring these 0:07:44.960 --> 0:07:47.320 claims to the courts. And so you have a a 0:07:47.480 --> 0:07:50.840 series of lawsuits that would percolate around the country making 0:07:50.880 --> 0:07:53.960 similar arguments. And I think the hope is and and 0:07:54.000 --> 0:07:58.000 it's and it's not a bad political strategy. The hope 0:07:58.040 --> 0:08:00.360 is that's going to serve to dissuade those who might 0:08:00.400 --> 0:08:04.360 otherwise have mandated the vaccine to back off. And I 0:08:04.360 --> 0:08:08.960 think there's probably some truth to that that nobody likes 0:08:08.960 --> 0:08:12.880 to be sued, particularly to the degree that one is 0:08:12.880 --> 0:08:16.360 being sued by one employee by one's employees. I think 0:08:16.400 --> 0:08:20.240 what you end up seeing is the deterioration of workplace morales. 0:08:20.240 --> 0:08:24.440 You have workers who are unhappy. You have divisiveness between 0:08:24.440 --> 0:08:26.960 the workers who say they wouldn't go to work unless 0:08:27.000 --> 0:08:31.640 everyone was vaccinated versus those who say I'll never get vaccinated. 0:08:32.120 --> 0:08:36.360 You have arguments about privacy, about freedom, about fundamental values. 0:08:37.120 --> 0:08:40.640 So even without the lawsuit, I think most employers, most 0:08:40.679 --> 0:08:44.120 of the time would prefer to see everybody embrace the 0:08:44.160 --> 0:08:48.640 idea of vaccination without a mandate, but in a variety 0:08:48.679 --> 0:08:51.680 of settings. Let's say, airlines would be an obvious one, 0:08:51.840 --> 0:08:56.160 cruise shifts would be another. Academic institutions and medical institutions 0:08:56.160 --> 0:09:01.120 certainly another. Relying on volunteerism, while would be nice, probably 0:09:01.160 --> 0:09:05.480 isn't enough. So you know, University of Pennsylvania Hospitals, the 0:09:06.200 --> 0:09:10.000 hospital where at the university where I work, has mandated 0:09:10.120 --> 0:09:13.920 vaccines for faculty and staff. I believe that am going 0:09:14.000 --> 0:09:18.280 to be increasingly the trend across the country. Just as 0:09:18.360 --> 0:09:22.120 hospitals have mandated the influenza vaccine for faculty and staff, 0:09:23.040 --> 0:09:27.800 universities are increasingly mandating it. But businesses, I think, if 0:09:27.840 --> 0:09:31.960 they can find ways of mandating it and happily stay 0:09:31.960 --> 0:09:35.360 out of the courts, are likely to probably go in 0:09:35.360 --> 0:09:38.200 that direction rather than the direction of a vaccine mandate. 0:09:38.760 --> 0:09:42.800 Had there been lawsuits against the hospitals or the universities 0:09:42.800 --> 0:09:48.760 who mandate the influenza vaccine, there have been lawsuits, and 0:09:49.840 --> 0:09:51.920 I think the law has been pretty clear since the 0:09:51.960 --> 0:09:56.040 beginning of the twentieth century that there's a strong public 0:09:56.080 --> 0:10:01.280 health justification for mandating vaccines, and that's been the case 0:10:01.480 --> 0:10:06.559 in schools. That's indicate in communities more broadly, and so 0:10:06.640 --> 0:10:11.760 while there has been litigation, that litigation has generally failed. Um, 0:10:11.800 --> 0:10:14.080 just just I think that to add one more point 0:10:14.120 --> 0:10:18.240 to the question you raised a second ago. Uh, there 0:10:18.280 --> 0:10:21.719 are some schools in the University of California or cal 0:10:21.840 --> 0:10:24.240 state system. I think is a good example of one 0:10:25.000 --> 0:10:30.320 that I suppose with an eye towards avoiding litigation that 0:10:30.400 --> 0:10:33.880 they would find to be bad publicity, time consuming, and expensive. 0:10:34.720 --> 0:10:37.920 Has said that the vaccine is the COVID nineteen vaccine 0:10:38.000 --> 0:10:42.559 is required a students, faculty, and staff once the FDA 0:10:43.240 --> 0:10:46.720 provides full approval of the vax vaccine, but not before. 0:10:47.600 --> 0:10:52.880 So they're sidestepping, I think, thoughtfully and cleverly the possibility 0:10:52.920 --> 0:10:57.360 of litigation based upon the emergency youth authorization of the 0:10:57.440 --> 0:11:00.680 vaccine and saying we will mandate it, but not until 0:11:01.000 --> 0:11:05.040 it's fully approved because we're we're pretty confident that we're 0:11:05.080 --> 0:11:07.840 on strong legal ground even if we're to mandated sooner, 0:11:07.840 --> 0:11:10.880 but we know where on very firmly ground if we 0:11:10.960 --> 0:11:13.160 put it off, And so putting it off has been 0:11:13.200 --> 0:11:16.680 the you see strategy, and it's increasingly the strategy. I 0:11:16.720 --> 0:11:20.040 think it's some other institution, the E E. O C. 0:11:20.280 --> 0:11:24.680 The Equal Employment Opportunity Commission recently confirmed that employers can 0:11:24.720 --> 0:11:29.319 require workers to get vaccinated. Does that carry any weight 0:11:29.640 --> 0:11:33.719 in a lawsuit? The e o c S recommendation the 0:11:34.160 --> 0:11:37.120 you know, it's going to depend upon the state. There. 0:11:37.120 --> 0:11:40.800 There are a variety of states that have, either through 0:11:40.840 --> 0:11:45.640 executive order or legislative action or both past laws that 0:11:45.800 --> 0:11:50.319 prohibit vaccine mandates. Are certainly if they don't prohibit the mandate, 0:11:50.360 --> 0:11:53.880 they prohibit the enforcement of the mandate by telling employers 0:11:54.520 --> 0:11:59.520 both private and public, that they cannot ask anybody to 0:11:59.640 --> 0:12:03.440 demon straight or provide proof that they've been vaccinated, and 0:12:03.480 --> 0:12:06.720 if they do, for example, in Florida, they're subject to 0:12:06.760 --> 0:12:10.320 a fine of up to five thousand dollars. So I 0:12:10.400 --> 0:12:13.520 think in a place where there's a state law, that 0:12:13.640 --> 0:12:19.040 state law is likely to override UH federal guidelines. Here 0:12:19.040 --> 0:12:21.600 from the e o C that said, there are lots 0:12:21.640 --> 0:12:24.360 of states that don't have those laws. And also that's 0:12:24.400 --> 0:12:27.080 that I think the e o c S guidance is 0:12:27.120 --> 0:12:30.960 really important because it didn't just say it was okay 0:12:30.960 --> 0:12:36.040 to mandate vaccines UH by employers. It said that bandating 0:12:36.080 --> 0:12:39.920 the vaccines and most circumstances would not be a violation 0:12:40.280 --> 0:12:44.560 of GENA, the Genetic Information on Discrimination Act, or of 0:12:44.600 --> 0:12:48.000 Title seven of the Civil Rights Act, which prohibits discrimination 0:12:48.200 --> 0:12:52.400 based upon race and religion and other categories, or of 0:12:52.440 --> 0:12:56.280 the Americans with Disabilities Act. And then it also spoke 0:12:56.360 --> 0:12:59.920 in some detail about the kind of incentives that employ 0:13:00.280 --> 0:13:04.160 could provide to employees so that they could nudge people 0:13:04.280 --> 0:13:08.320 towards getting vaccinated without mandating vaccines, and that I think 0:13:08.360 --> 0:13:13.280 it's become an increasingly important way of getting people vaccinated 0:13:13.400 --> 0:13:17.280 without requiring them to be vaccinated. Offer the money, offer 0:13:17.360 --> 0:13:19.400 them a day off, offer them some sort of a 0:13:20.160 --> 0:13:22.720 thanks for being on the Bloomberg Laws Show. That's Professor 0:13:22.880 --> 0:13:27.520 Eric Felban of the University of Pennsylvania Law School. The 0:13:27.600 --> 0:13:31.760 Biden Administration's decision to defend former President Donald Trump in 0:13:31.760 --> 0:13:35.920 a defamation lawsuit over his rape denial surprised many and 0:13:36.120 --> 0:13:39.720 angered some. In a letter to Attorney General Merrick Garland, 0:13:39.720 --> 0:13:44.000 the House Judiciary Committee called the decision misguided and demanded 0:13:44.040 --> 0:13:47.360 that the Johnstice Department reverse its decision to defend the case. 0:13:47.920 --> 0:13:52.280 The Johnstice Department's court filing strongly back Trump's assertion that 0:13:52.480 --> 0:13:55.880 his calling advice columnist E. Jene Carol, a liar in 0:13:57.320 --> 0:13:59.760 after she accused him of raping her in the ninety 0:14:00.000 --> 0:14:04.199 intees was an official act shielded from lawsuit joining me? 0:14:04.280 --> 0:14:08.839 Is Bloomberg Legal reporter Eric Larson start with telling us 0:14:08.880 --> 0:14:13.960 about this law that would allow former President Trump to 0:14:14.080 --> 0:14:18.880 dodge a defamation lawsuit. So it's it's fairly acure law 0:14:18.880 --> 0:14:20.920 that doesn't pop up a lot in the news, but 0:14:20.960 --> 0:14:24.960 it's called the Westfall Act of nine UM. What it 0:14:25.040 --> 0:14:30.080 does is it protects federal employees government employees UM from 0:14:30.200 --> 0:14:34.080 litigation against them civil lawsuits UM filed against them that 0:14:34.200 --> 0:14:38.080 relates to their job duties. So one example that popped 0:14:38.120 --> 0:14:41.560 around a lot is you know of USPS mail carrier, 0:14:41.760 --> 0:14:45.040 you know, crashes into a car and get sued by 0:14:45.080 --> 0:14:46.920 the document of that car. This is a type of 0:14:47.000 --> 0:14:49.240 law that would get that suit thrown out because they 0:14:49.360 --> 0:14:52.160 it would make the United States government essentially the defendant 0:14:52.240 --> 0:14:55.000 rather than the individuals. So the position of the Trump 0:14:55.040 --> 0:15:02.040 administration was that his alleged defamation ee, Gene Carroll, would 0:15:02.040 --> 0:15:06.280 fall under this law. What did the government argue? Why 0:15:06.320 --> 0:15:09.640 did they think that this applied to Trump in this case? 0:15:10.560 --> 0:15:14.480 So the Trump administration argued that when Ejing Carroll accused 0:15:14.520 --> 0:15:17.680 him in two thousand nineteen of raping tour of two 0:15:17.760 --> 0:15:22.040 decades ago, and then the saming Carol by denying it. Uh, 0:15:22.200 --> 0:15:26.200 the government argued that the president should be removed from 0:15:26.200 --> 0:15:29.120 the lawsuit and that the United States government should be 0:15:29.120 --> 0:15:32.160 the defendant in the case instead, because under the West 0:15:32.200 --> 0:15:36.120 Ball actually argued Trump was carrying out a presidential duty 0:15:36.160 --> 0:15:40.120 of some sort by denying the claims made by Eejan Carroll. 0:15:40.720 --> 0:15:43.960 And it's part of that that motion if the government 0:15:44.080 --> 0:15:46.840 is substituted for Trump, and essentially the cases over the 0:15:46.880 --> 0:15:50.000 cases dismissed because you can't see the government for defamation. 0:15:50.640 --> 0:15:54.920 So this was litigated. Tell us what the lower court 0:15:55.040 --> 0:15:59.520 judge decided in the case and why so in October 0:15:59.720 --> 0:16:03.480 that the report judge in Manhattan disagreed with the Trump 0:16:03.480 --> 0:16:06.760 administration and ruled in favor of aging Carol and said 0:16:06.800 --> 0:16:10.040 that Trump was not carrying out a presidential duty when 0:16:10.040 --> 0:16:14.360 he denied her allegations and essentially accused her of lying 0:16:14.440 --> 0:16:18.680 of making this up for political purposes um, claiming that 0:16:18.760 --> 0:16:22.520 she had made similar allegations against other men um which 0:16:22.560 --> 0:16:25.760 wasn't actually true. And it also said frankly that she 0:16:25.880 --> 0:16:28.840 wasn't his type, or to use his word, So he 0:16:28.880 --> 0:16:33.640 came out pretty strongly denying Miss Carroll's claims, and she 0:16:33.840 --> 0:16:37.480 accused him of defamation. And when the government tried to 0:16:37.520 --> 0:16:40.080 have the case thrown out under the west Ball Act, 0:16:40.200 --> 0:16:44.160 the federal judge just disagreed, and now, uh, there's an 0:16:44.160 --> 0:16:48.080 appeal underway. The appeal was filed before President Biden was 0:16:48.120 --> 0:16:51.560 elected h so when he won, the judge said, well, 0:16:51.640 --> 0:16:54.560 let's wait and see what the Biden administration has to 0:16:54.600 --> 0:16:57.240 say about whether or not the west Ball Act applied 0:16:57.280 --> 0:16:59.360 to this case. So everyone went in the case was 0:16:59.440 --> 0:17:03.640 just waiting to see what uh Merritt Darland k would say. 0:17:03.720 --> 0:17:05.480 And this was sort of a surprise when they came 0:17:05.480 --> 0:17:09.000 out with the exact same argument that the Trump administration 0:17:09.080 --> 0:17:13.280 has not only a surprise, but it's really caused a 0:17:13.359 --> 0:17:17.879 lot of consternation, so much so that the Democrats on 0:17:17.920 --> 0:17:21.200 the House Judiciary Committee just sent a letter to Merrick 0:17:21.280 --> 0:17:24.840 Garland to ask them to change their position. Let's talk 0:17:24.880 --> 0:17:27.639 about what might be behind this, because during the campaign, 0:17:28.280 --> 0:17:32.119 Biden criticized the d o J intervening in the case. 0:17:32.560 --> 0:17:35.600 Now the White House says it wasn't consulted by Justice 0:17:35.640 --> 0:17:38.639 on the decision to file the brief or its contents. 0:17:39.240 --> 0:17:42.000 Is the Department of Justice trying to make a point 0:17:42.119 --> 0:17:45.320 about its independence here, Well, I don't know if they're 0:17:45.320 --> 0:17:47.480 trying to make a statement about it, but it certainly 0:17:47.520 --> 0:17:50.680 does suggest that, uh, the d o J is coming 0:17:50.760 --> 0:17:53.920 up with their their own argument here. That is different 0:17:54.000 --> 0:17:56.560 from what Biden said on on the campaign trail. So 0:17:56.840 --> 0:17:59.200 Biden said that he was going to keep the d 0:17:59.280 --> 0:18:01.280 o J on lanky, wasn't going to try to use 0:18:01.320 --> 0:18:04.320 it as a personal law firm, as the accused Trump 0:18:04.320 --> 0:18:07.480 of doing so. The fact that they have the President 0:18:07.520 --> 0:18:09.480 and the d o J have a different views on 0:18:09.560 --> 0:18:12.359 this could be explained as just the d J doing 0:18:12.359 --> 0:18:15.080 what it does. Of course, others see it as as 0:18:15.119 --> 0:18:18.000 the d o JA trying to protect the office of 0:18:18.000 --> 0:18:20.960 the presidency at the expense of other people who might 0:18:21.000 --> 0:18:24.199 want to do the president. But we we really don't know. 0:18:24.359 --> 0:18:27.240 We can say though, that, as the DJ pointed out 0:18:27.320 --> 0:18:30.240 under both Trump and Biden, that the west Ball Act 0:18:30.359 --> 0:18:34.760 has been applied to previous president um including Barack Obama 0:18:34.800 --> 0:18:38.399 and Bill Clinton George W. Bush, So it's not unusual 0:18:38.520 --> 0:18:43.119 for lawsuits against presidents to be dismissed under this law. 0:18:43.600 --> 0:18:47.280 What Aging Carol and her lawyers say is that it's 0:18:47.320 --> 0:18:49.960 just not the same. The cases against or other presidents 0:18:50.000 --> 0:18:54.159 and other federal employees are much more related to something 0:18:54.240 --> 0:18:59.040 pertaining to their job duties as federal government employees, and 0:18:59.119 --> 0:19:03.800 that ablicly denying a rape allegation from twenty years ago 0:19:04.400 --> 0:19:07.840 doesn't fall under any kind of duty. So that's why 0:19:08.119 --> 0:19:11.000 I think Eating Carol and her lawyers thought that they 0:19:11.040 --> 0:19:14.600 were going to get Biden d O J on their side, 0:19:15.400 --> 0:19:17.520 but it doesn't turn out that way. That DJ is 0:19:17.760 --> 0:19:21.400 is putting a very applying this very broadly. Um, not 0:19:21.480 --> 0:19:24.760 just the Biden but future presidents as well. Eric. The 0:19:24.880 --> 0:19:27.920 law has also been used to block a wrongful death 0:19:28.119 --> 0:19:32.600 and defamation lawsuit against former Secretary of State Hillary Clinton, 0:19:33.200 --> 0:19:36.840 and the language by the DC Federal Appeals Court it 0:19:37.000 --> 0:19:40.320 was pretty broad, that's right. Um. This was a case 0:19:40.480 --> 0:19:45.800 that was filed against Hillary Clinton by two family members 0:19:45.800 --> 0:19:48.879 of two individuals who were killed in that attack on 0:19:49.200 --> 0:19:53.960 the US facility in Benghazi. Um. They accused her of 0:19:54.080 --> 0:19:57.520 defaming them. They also accused her of causing the wrongful 0:19:57.560 --> 0:20:01.000 death of their loved ones by all really sending sensitive 0:20:01.040 --> 0:20:05.640 information about that facility over her private email server. UM. 0:20:05.880 --> 0:20:09.240 So you know this case was thrown out under under 0:20:09.280 --> 0:20:12.600 the west Ball Act. Um. The judge um in the 0:20:12.640 --> 0:20:16.560 Federal appeals court agreed that this related to all of 0:20:16.560 --> 0:20:19.760 this related to do Hillary Clinton's duty of the Secretary 0:20:19.800 --> 0:20:22.720 of State and the best precisely what the west Ball 0:20:23.320 --> 0:20:26.960 Act was passed for. UM, And you're correct that it's 0:20:26.960 --> 0:20:29.560 say the Federal Peals Court in Washington did use very 0:20:29.800 --> 0:20:34.120 broad language saying that there was extensive precedent had made 0:20:34.119 --> 0:20:38.560 it clear um that alleging of federal employees violated policy 0:20:38.760 --> 0:20:41.520 or even laws in the course of her employment, including 0:20:41.520 --> 0:20:46.119 specific allegations of defamation or potentially criminal activities, does not 0:20:46.240 --> 0:20:49.639 take that conduct outside the scope of employment. Kind of 0:20:49.640 --> 0:20:51.880 a long quote, but it really does show how broadly 0:20:52.280 --> 0:20:55.560 the Washington Appeals Court interpreted that. Of course, the case 0:20:55.640 --> 0:20:58.439 we're talking about is now before there's a second circuit 0:20:58.440 --> 0:21:01.240 in New York. Uh, still be interesting to see how 0:21:01.320 --> 0:21:04.680 how their decision comes down. It's Trump raising a similar 0:21:04.680 --> 0:21:09.760 defense in lawsuits against him over the Capital insurrection. Yeah, 0:21:09.840 --> 0:21:14.359 that's really interesting because he is and uh, the d 0:21:14.600 --> 0:21:18.439 J hasn't come down with um with any sort of 0:21:18.480 --> 0:21:21.880 determination on that yet. But I think that there are 0:21:21.920 --> 0:21:23.959 are people who are concerned. You know, we quoted one 0:21:24.000 --> 0:21:26.400 of them and one of our stories saying that they 0:21:26.480 --> 0:21:31.639 were very concerned about its broad interpretation. UM. And it's 0:21:31.800 --> 0:21:35.120 it's interesting too because you could see how the arguments 0:21:35.160 --> 0:21:38.160 from both sides would apply to this case as well. UM. 0:21:38.200 --> 0:21:41.600 The difference thing in this case, Uh, the president then 0:21:41.720 --> 0:21:46.160 President Trump was making comments that really worked directly related 0:21:46.320 --> 0:21:51.080 to UM, an election that it just happened, it relates 0:21:51.080 --> 0:21:55.000 to his election. UM. Obviously we know what happened to 0:21:55.400 --> 0:21:58.600 when people took what he was saying literally and believed, Um, 0:21:59.680 --> 0:22:03.520 his his wise about the election being stolen. UM. But 0:22:04.000 --> 0:22:05.960 you know, clearly they're going to argue that this was 0:22:06.000 --> 0:22:09.280 just his job as president. He was just making commentary 0:22:09.280 --> 0:22:11.760 as presidents do. And the other side is going to 0:22:11.880 --> 0:22:14.880 argue he went way too far. That conciding an insurrection 0:22:15.240 --> 0:22:17.640 surely is not what Congress intended when they passed through 0:22:17.640 --> 0:22:20.520 Westball Act. So again, it's a it's going to be 0:22:20.560 --> 0:22:24.199 another test of this this law. I want to talk 0:22:24.240 --> 0:22:27.440 a little bit about the lawyer who is representing E. G. 0:22:27.880 --> 0:22:31.520 Carol in her lawsuit against Trump, ROBERTA. Kaplan because you 0:22:31.600 --> 0:22:35.080 did a story on her first of all, tell us 0:22:35.080 --> 0:22:38.960 a little bit about her and and her background. Yeah, So, 0:22:39.240 --> 0:22:44.760 Robbie Chaplin, she is a civil rights lawyer. Um. She 0:22:44.920 --> 0:22:47.720 is one of the lawyers who helped pay the way 0:22:47.760 --> 0:22:52.040 for the legalization of things that marriage in the Supreme Court. 0:22:52.160 --> 0:22:56.680 She argued the case that overturned the Defense of Marriage Actuh. 0:22:56.880 --> 0:23:01.800 So she also helps campaign for Lary Clinton. UM knows 0:23:01.920 --> 0:23:04.560 her and and and she was confident that she was 0:23:04.600 --> 0:23:06.719 going to win and perhaps to get a job at 0:23:06.720 --> 0:23:10.720 the Justice Department. Of course that didn't happen, so she left. 0:23:11.240 --> 0:23:13.840 She had left her her job at Paul White, where 0:23:13.840 --> 0:23:17.040 she's been for over two decades, and instead of going 0:23:17.080 --> 0:23:20.240 to work for the Justice Department under Hillary Clinton, decided 0:23:20.280 --> 0:23:23.920 to found her own law firms. So that's what she did. Um. 0:23:24.000 --> 0:23:27.159 And they've been taking on, uh, you know a lot 0:23:27.240 --> 0:23:30.760 of very interesting cases, teaching Carol's cases one of them. 0:23:31.240 --> 0:23:34.800 They're also representing Trump. Meet Mary Trump and her fraud 0:23:34.880 --> 0:23:37.760 lawsuit against the President, accusing him of ripping her up 0:23:38.080 --> 0:23:42.560 millions of dollars um. They're also running lawsuits. One of 0:23:42.640 --> 0:23:44.960 the first lawsuits they filed with against some of the 0:23:45.119 --> 0:23:48.560 organizers of the United Rights Rally and Charlottesville, like so 0:23:48.600 --> 0:23:52.600 many injuriespended deaths, um and that's potentially going to trial 0:23:52.760 --> 0:23:55.560 in October. But on top of that, they're doing all 0:23:55.720 --> 0:23:58.840 kinds of spent regular commercial work as well and looking 0:23:58.880 --> 0:24:01.880 for big Wall Street client and fortune side hunter companies, 0:24:02.400 --> 0:24:06.400 things like that, doing commercial work, white collar crime, representing 0:24:06.400 --> 0:24:10.240 companies in congressional investigations and things like that. So she's 0:24:10.240 --> 0:24:14.880 attracting a lot of in demand young lawyers because of 0:24:14.920 --> 0:24:19.119 the public interest work that she does, or just because 0:24:19.119 --> 0:24:21.720 of the nature of the firm. Well, she says that 0:24:21.760 --> 0:24:25.080 it's both. These are she describes their their lawyers they're 0:24:25.119 --> 0:24:28.520 hiring and um, you know, very talented younger lawyers who 0:24:29.040 --> 0:24:32.880 are very interested in public interest work. They're kind of 0:24:32.880 --> 0:24:35.320 work that they're they're putting at the center of their firm, 0:24:35.400 --> 0:24:39.240 but also want to, um, you know, get involved in 0:24:39.000 --> 0:24:42.440 in corporate litigation, the kind of the kind of legal 0:24:42.440 --> 0:24:44.360 work that's so common in you know, in New York 0:24:44.359 --> 0:24:47.240 Wall Street related stuff. So really that's what they're telling 0:24:47.240 --> 0:24:50.440 where they can work on both, um, both types of 0:24:51.000 --> 0:24:53.679 law here and and surrive doing both. That's that's how 0:24:53.720 --> 0:24:56.280 they pitch it. To their thanks for being on the show. Eric. 0:24:56.440 --> 0:24:59.920 That's Bloomberg Legal reporter Eric Larson, and that's it for 0:25:00.040 --> 0:25:02.680 this edition of The Bloomberg Law Show. Remember you can 0:25:02.680 --> 0:25:05.560 always get the latest legal moves on our Bloomberg Lawn podcast. 0:25:05.800 --> 0:25:08.640 You can find them on Apple Podcasts, Spotify, and at 0:25:08.760 --> 0:25:13.680 www dot Bloomberg dot com, slash podcast slash Law. I'm 0:25:13.760 --> 0:25:16.000