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

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Speaker 2: It's been three years since a white supremacist opened fire

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Speaker 2: inside a grocery store in Buffalo and killed ten people.

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Speaker 3: This tragedy shocked us. It devastated us. It pushed us

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Speaker 3: to where we thought were beyond our limits. But it

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Speaker 3: didn't break us. It didn't break us. Instead, it revealed

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Speaker 3: a strength that runs deep in the veins of the city,

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Speaker 3: the strength of a community that binds together and refuses

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Speaker 3: to be defined by acts of hate.

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Speaker 2: The eighteen year old shooter pleaded guilty to all state

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Speaker 2: charges and was sentenced to eleven concurrent life sentences. The

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Speaker 2: federal case against him is ongoing, but survivors and families

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Speaker 2: of the victims are seeking to hold social media companies responsible.

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Speaker 2: They're suing internet giants Google, Meta, Amazon, and Reddit for

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Speaker 2: publishing racist content that alleged motivated the shooter to commit

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Speaker 2: a hate crime by targeting people in a historically black

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Speaker 2: neighborhood hundreds of miles from his home.

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Speaker 4: Our case is fundamentally about the isolation, obsession, lack of

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Speaker 4: impulse control, and desensitization resulting from the neurological and psychological

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Speaker 4: trauma inflicted on a teenager's brain by a highly addictive

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Speaker 4: social media product.

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Speaker 2: And today both sides were in a New York appellate

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Speaker 2: courtroom where the social media companies are arguing that they

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Speaker 2: can't be held liable for the racist content on their sites.

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Speaker 2: The victim's families say the algorithms the Internet sites used

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Speaker 2: to deliver tailored content to users should be considered products

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Speaker 2: under the state's product liability law. Here are the attorneys

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Speaker 2: for the victims families and Meta.

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Speaker 1: Any time our manufacturer places a dangerous product into the

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Speaker 1: stream of commerce that they reasonably know creates an unreasonable

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Speaker 1: risk of harm to the public, are libel are in

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Speaker 1: New York state products liability law. It's plain and dirt simple.

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Speaker 5: And there are two sort of foundational problems here that

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Speaker 5: get us outside of the realm of traditional product liability.

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Speaker 5: One is that communicating intangible information is not a product,

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Speaker 5: and the second is that services are not products. And

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Speaker 5: here we have both of those things. Product liability law

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Speaker 5: is geared to the tangible world. That's the language of

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Speaker 5: the seminal Winter case.

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Speaker 2: It would be a first in New York if a

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Speaker 2: court found a non tangible thing to be a product

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Speaker 2: for purposes of liability law. My guest is Eric Goleman,

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Speaker 2: a professor at Santa Clara University Law School and co

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Speaker 2: director of the High Tech Law Institute. Eric, can you

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Speaker 2: tell us about the allegations of the plaintiffs in these cases?

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Speaker 6: The case involved the mass shooting in a Buffalo supermarket

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Speaker 6: by a white supremacist, and the basic gist of the

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Speaker 6: claims is that the shooter was radicalized on Facebook, and

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Speaker 6: so in order to fit that into legal doctrines, there's

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Speaker 6: a variety of different claims that the victims and families

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Speaker 6: have made in order to explain what's wrong with that?

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Speaker 6: Why does that actually create legal rights for the victims does?

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Speaker 6: Some of those include a claim that Facebook was negligent,

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Speaker 6: that it should have done something different to protect the victims,

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Speaker 6: and some of it is based on what we sometimes

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Speaker 6: call products liability. That Facebook is a product that is

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Speaker 6: dangerous and as a result, any harms is caused by

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Speaker 6: a dangerous product can be attributable to the supplier of

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Speaker 6: that product.

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Speaker 2: Are the plaintiffs bringing it under the product liability law?

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Speaker 2: In order to get around sex.

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Speaker 6: No. Section two thirty is a defense whereas the planets

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Speaker 6: have to still figure out a claim that actually fits

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Speaker 6: their facts. However, they do want to pick claims that

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Speaker 6: are not preempted by Section two thirty, which says, in short,

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Speaker 6: that websites aren't liable for third party content. So the

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Speaker 6: idea is that the planets are arguing that they're not

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Speaker 6: suing to hold Facebook liabel for the third party content.

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Speaker 6: They're suing based on Facebook's contribution to the radicalization of

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Speaker 6: the shooter.

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Speaker 2: So when you think of product liability, you think of

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Speaker 2: tangible objects. You know, a mechanical device that injures you,

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Speaker 2: something like that. Has a New York court ever found

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Speaker 2: a streaming service or social media to be a product

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Speaker 2: under the state's product liability law.

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Speaker 6: For decades, there have been legal theories that have held

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Speaker 6: that the supply of physical items that are at risk

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Speaker 6: of causing physical injury are live for those physical injuries.

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Speaker 6: And one of the classic old cases involved exploding coca

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Speaker 6: cola bottles, and if you didn't manufacture and fill the

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Speaker 6: coca cola bottle properly, it could literally explode and create

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Speaker 6: shards of laughs that were projectiles. And so the idea

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Speaker 6: is that we want manufacturers to be more careful in

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Speaker 6: the manufacture of an item like that because of the

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Speaker 6: physical risk of poses when that item is now in consumers' homes.

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Speaker 6: There's a very bright line in those doctrines between physical

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Speaker 6: items they are capable of causing physical injury and intangible

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Speaker 6: thinks or services which do not pose the same risk

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Speaker 6: of sending glass yards as projectiles, because there's literally nothing

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Speaker 6: like that in their possession. So the laws normally limit

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Speaker 6: products liability theories to actual physical products, not to services

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Speaker 6: like Internet services like Facebook. So it's a leap of

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Speaker 6: the theory to try and expand it to cover services.

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Speaker 6: This theory wasn't designed for that purpose, it's not optimized

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Speaker 6: to do so, and unlike the regulation of Coca Cola

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Speaker 6: bottles exploding with glass chards, there's significant speech implications if

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Speaker 6: we tried to regulate the dissemination of information as if

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Speaker 6: it's an exploding coke bottle. So there have been plaintiffs

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Speaker 6: across the country that have been trying out the theories

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Speaker 6: that internet services are subject to products liability doctrines, and

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Speaker 6: courts have split on that issue. Most courts have rejected it,

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Speaker 6: some have entertained it, and so it's a live frontier

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Speaker 6: in internet law today.

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Speaker 2: And have there been rulings bipellate courts on that.

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Speaker 6: Yes and no. There's been a variety of rulings in

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Speaker 6: different fact circumstances. But there's a leading case in this

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Speaker 6: area that just came out in February from the Fourth

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Speaker 6: Circuit involved a very very similar case involving the shooter

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Speaker 6: who allegedly was radicalized on Facebook, and the plaintiffs argued

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Speaker 6: products liability is part of the reasons why Facebook should

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Speaker 6: be liable, and in that case the Federal peblic Court

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Speaker 6: shut all that down and said that Facebook qualified for

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Speaker 6: Section two thirty. Everything that the Planets are arguing was

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Speaker 6: trying to hold Facebook liable for the third party content

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Speaker 6: available on service, and therefore the Planets lose. So the

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Speaker 6: plainliffs in this case aren't directly bound by that ruling,

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Speaker 6: but clearly there's a strong message from that ruling that

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Speaker 6: the Planetf's arguments should not be successful.

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Speaker 2: Does that issue depend on the state's product liability law,

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Speaker 2: because those laws differ from state to state.

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Speaker 6: It can we have to look at the terms of

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Speaker 6: the exact statute, what it says it covers. That might

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Speaker 6: very well restrict plaints claims, but not expand them. In

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Speaker 6: other words, there's some limit to the theory that as

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Speaker 6: far as it can go, at some point it has

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Speaker 6: to stop, either because of doctrines like Section two thirty,

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Speaker 6: which Congress enacted as the way to prevent that kind

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Speaker 6: of explan or because of the First Amendment that the

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Speaker 6: Constitution does not permit a physical based legal doctrine to

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Speaker 6: extend to the dissemination of the speech.

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Speaker 2: If the court allows the case to go forward, well,

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Speaker 2: the plaintiffs have to prove that Facebook or the other

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Speaker 2: platforms led to the radicalization of the shooter. And how

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Speaker 2: difficult will that be?

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Speaker 6: Definitely they'll have to show that what we call causation

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Speaker 6: when it comes to negligence. I believe that that will

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Speaker 6: also be relevant in the context of strict products liability,

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Speaker 6: and it will be difficult. And causation was also an

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Speaker 6: issue in the Federal Appellate Court. Rulin I mentioned from

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Speaker 6: the Fourth Circuit and the court independently said there was

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Speaker 6: not sufficient causation in that case. And when we think

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Speaker 6: about what causes someone to radicalize into a white supremacist

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Speaker 6: and even words, what causes a white supremacist to then

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Speaker 6: decide to engage in mass murder. There's so many things

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Speaker 6: that contribute to that outcome, and it's very difficult to

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Speaker 6: pull out one piece and say that's the cause. They

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Speaker 6: should bear all the burden of responsibility. In fact, it

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Speaker 6: really is a whole of society failure to have people

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Speaker 6: who end up in that circumstance, and we really need

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Speaker 6: to look at our society across the board to figure

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Speaker 6: out what went wrong and what we ought to be

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Speaker 6: doing differently, and to try and pin it on anyone

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Speaker 6: player in the ecosystem. To say Facebook was the reason

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Speaker 6: why this particular person pulled the trigger, I really think

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Speaker 6: kind of denies the reality of how we've all contributed

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Speaker 6: to a society that can lead to these outcomes and.

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Speaker 2: Explain how Section two thirty would work here As a.

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Speaker 6: Defense, So the planets started arguing that Facebook radicalized the shooter,

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Speaker 6: and Facebook itself normally doesn't publish content itself that it authored.

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Speaker 6: Its primary way of engaging in content distribution is to

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Speaker 6: gather third party content like the Facebook post that we

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Speaker 6: all make as the every day activity, and then share

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Speaker 6: that with an audience. And so the content that allegedly

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Speaker 6: radicalized the shooter didn't come from Facebook. Facebook most was

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Speaker 6: the mechanism by which some author matched with the shooter.

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Speaker 6: And so it's impossible really to describe Facebook's role in

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Speaker 6: radicalizing the shooter without talking about the content that regalized

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Speaker 6: the shooter, all of which came from a third party.

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Speaker 6: And if third party content can't create liability for Facebook

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Speaker 6: section two, there you will apply a note.

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Speaker 2: Michael Bloomberg, the founder and majority owner of Bloomberg LP,

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Speaker 2: the parent company of Bloomberg Radio, is a donor to

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Speaker 2: groups that support gun control, including every Town for Gun Safety,

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Speaker 2: which represented the plaintiffs in this case in the lower courts.

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Speaker 2: Coming up next on the Bloomberg Law Show, I'll continue

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Speaker 2: this conversation with Professor Eric Goleman of Santa Clara University

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Speaker 2: Law School. We'll talk more about the algorithms that issue

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Speaker 2: in the case. Survivors and families of the victims of

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Speaker 2: the mass shooting in a Buffalo supermarket three years ago

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Speaker 2: are suing Internet giants Google, Meta, Amazon, and Reddit for

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Speaker 2: publishing racist content that allegedly motivated the shooter to commit

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Speaker 2: a hate crime targeting people in an historically black neighborhood

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Speaker 2: hundreds of miles from his Home. The plaintiffs blame the

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Speaker 2: proprietary algorithms the companies use.

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Speaker 1: Putting people in groups. There's something called confirmation bias. And

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Speaker 1: when you put people in groups where they're getting these

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Speaker 1: white supremacist theories and these calls to violence and these

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Speaker 1: calls to make a race war and think that that's

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Speaker 1: the right thing. That's what happened to Peyton Gendron, and

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Speaker 1: that's what this lawsuit is about him.

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Speaker 2: But the Internet companies say they're protected from liability under

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Speaker 2: the law, which says no interactive computer service provider can

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Speaker 2: be treated as the publisher or speaker of any information

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Speaker 2: provided by another information content provider. I've been talking with

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Speaker 2: Professor Eric Goldman of Santa Clara University Law School. Eric

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Speaker 2: tell us about the plaintiff's claims about the algorithms.

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Speaker 6: So, in order for the shooter to get access to

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Speaker 6: the radicalizing content, somebody has to upload it, and then

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Speaker 6: Facebook has to make the match to present that to

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Speaker 6: the reader to the shooter in this case, and so

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Speaker 6: plainists have often claimed that it was the algorithm Facebook

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Speaker 6: created that led to this radicalization. Now, there are a

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Speaker 6: couple of problems with that theory. One is it was

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Speaker 6: expressly rejected. In the Fourth Circuit opinion that I mentioned earlier,

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Speaker 6: Federal Peller Court said that's not a way of getting

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Speaker 6: around Section two thirty. The other piece, and the Appellate

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Speaker 6: Court mentioned this as well, that in order for Facebook

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Speaker 6: to do anything differently to prevent that requalization, it would

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Speaker 6: have to re architect its entire service. In other words,

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Speaker 6: there's not a way of it just changing the algorithm

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Speaker 6: to eliminate the risk of rattle and clovation with changing

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Speaker 6: any other element of its algorithm. So, in other words,

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Speaker 6: there's no easy fix here for Facebook. Facebook work the

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Speaker 6: way it was designed to work. It may matches between

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Speaker 6: people and content they might be interested in. Unfortunately, some

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Speaker 6: people are interested in content that is antisocial. Facebook's algorithm

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Speaker 6: treats that the same as all other content.

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Speaker 2: The director of the Center for Democracy and Technologies Free

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Speaker 2: Expression Project, which filed in a MEEKS brief in support

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Speaker 2: of the social media companies, said if the automatic ranking

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Speaker 2: and delivery of content is separated from the Section two

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Speaker 2: thirty liability shield, it will suddenly make many pieces of

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Speaker 2: content open to liability and incentivized platforms that use automated

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Speaker 2: ranking systems to deliver content to suppress or eliminate delivery

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Speaker 2: of content they're worried about. So basically, would there be

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Speaker 2: a chilling effect if that happens.

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Speaker 6: I think that's a riff on what I was just saying,

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Speaker 6: and maybe said better than I did. But let me

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Speaker 6: take another cut at it. So, if Facebook is liable

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Speaker 6: for radicalization content, and if and I'm going to hypothesize this,

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Speaker 6: it's true, people might debate it. There is no way

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Speaker 6: for Facebook to know which content is radicalized in or not,

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Speaker 6: or to properly separate that from the pro social content

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Speaker 6: that it would prefer to disseminate. Then Facebook basically becomes

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Speaker 6: the financial guaranteur of any harms that are caused by

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Speaker 6: people that can be traced back to someone's consumption content

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Speaker 6: on Facebook. We've seen so many cases in this genre.

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Speaker 6: This is not a unique case in Buffalo. Many times,

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Speaker 6: victims of shootings have claimed that the shooter was exposed

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Speaker 6: to content on social media, and social media should be

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Speaker 6: responsible for this, and that's just not tenable. Social media

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Speaker 6: cannot act as the financial guaranteur of all the shootings

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Speaker 6: that take place in the world, so then they have

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Speaker 6: to do something different. If they become the financial guarantur

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Speaker 6: they cannot exist in their current form.

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Speaker 2: The easiest path for the Appellate Division right now in

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Speaker 2: this case is to allow the case to go forward

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Speaker 2: and to say, you know, the facts have to be

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Speaker 2: developed before we can make a decision on whether or

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Speaker 2: not this is subject to the state's product liability law.

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Speaker 6: So that's essentially what the lower court did. The lower

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Speaker 6: court basically said, I understand Facebook's defenses, and yet I

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Speaker 6: need to see more facts than before I'm prepared to

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Speaker 6: make the conclusion that products valuability applies, or even that

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Speaker 6: Section two thirty applies. So one possibility is that pel

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Speaker 6: Court could say that District Court was right. Let the

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Speaker 6: case continue to evolve in its ordinary manner, and once

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Speaker 6: we get more information, then we'll be able to figure

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Speaker 6: out what defenses to actually apply in the circumstance. Most

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Speaker 6: cases evolving section two thirty don't do that. Most cases

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Speaker 6: in section two thirty. And at the motion the Smiths,

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Speaker 6: because it is obvious on the face there's nothing that

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Speaker 6: would be produced in a discovery that would show that

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Speaker 6: Section two thirty didn't apply. And here I don't think

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Speaker 6: anyone's contesting the Facebook provided or authored the radicalizing content.

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Speaker 6: The allegation is that it matched the shooter with their

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Speaker 6: party content. So everything that the court needs to know

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Speaker 6: about Section two theories, I think or are you available

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Speaker 6: to it. So punting on that question actually would be

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Speaker 6: a disservice to Facebook and I think to all other

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Speaker 6: social media that expect to be able to avoid the

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Speaker 6: liability for things that they're not legally responsible for.

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Speaker 2: It's interesting that the plaintiffs to your chose state court

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Speaker 2: were in the other case you were discussing the plaintiffs

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Speaker 2: chose federal court.

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Speaker 6: You know, planets get to pick the venue that they

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Speaker 6: think is the best place for them to achieve justice.

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Speaker 6: So it's completely logical that they might conclude that New

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Speaker 6: York state courts is opposed to New York federal courts

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Speaker 6: are a better venue for them. But I would hope

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Speaker 6: that the New York state courts will still take a

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Speaker 6: look at what's going on in the rest of the country,

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Speaker 6: because this is not a novel issue across the country,

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Speaker 6: and the case law is very clear that the New

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Speaker 6: York state trial courts got a wrong.

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Speaker 2: How important is this case as a precedent, let's say,

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Speaker 2: for other cases around the country, and is it important

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Speaker 2: or is it just, you know, another one of the

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Speaker 2: cases that you've been talking about. Is there any import

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Speaker 2: to it?

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Speaker 6: So every case that involves the situation where social media

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Speaker 6: allegedly contributed to some offline harm is important because if

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Speaker 6: those cases succeed, then all social media services face an

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Speaker 6: extreme amount of liability that may make them financially untenable.

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Speaker 6: So it's like the social media services have to bat

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Speaker 6: a thousand in these cases. If they only bout nine

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Speaker 6: to ninety nine and one case gets through, that one

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Speaker 6: case could potentially change the entire Internet ecosystem. So if

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Speaker 6: this case ends up like essentially all the others, and

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Speaker 6: the planiffs don't succeed, then this case became unimportant. It's

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Speaker 6: just one of the many. If for whatever reason, this

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Speaker 6: case does succeed, then this could be the case that

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Speaker 6: reshapes the Internet. And the district court opinion in this

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Speaker 6: case was so troubling, and because it clearly deviated from

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Speaker 6: pressing around the country, and because it basically said I

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Speaker 6: can't make any judgments, even though many people thought that

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Speaker 6: the court had all the facts that needed to make

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Speaker 6: a judgment. And so if that's the case, it opens

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Speaker 6: up the door for unpredictable results, and that unpredictable is

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Speaker 6: actually its own form of danger to the Internet.

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Speaker 2: Any final thoughts.

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Speaker 6: You know, the Buffalo shoe was horrific. You know, all

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Speaker 6: these mass murders are just heartbreaking. You know, they're a

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Speaker 6: sign of pathology in our country. They just absolutely tear

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Speaker 6: me up. And the fact that the shooter was espousing

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Speaker 6: the great replacement theory is even more troubling that this

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Speaker 6: theory continues to find an audience in our country when

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Speaker 6: it's both a factual but it's also deeply corrosive. I

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Speaker 6: will add that want to blame Facebook for the dissemination

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Speaker 6: of the great replacement theory, but many leading figures in

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Speaker 6: our country, whether that's media pundits or actual government officials,

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Speaker 6: have also dabbled in the great replacement theory, and so

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Speaker 6: to me, the idea that Facebook ratoclides this shooter misses

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Speaker 6: the whole ecosystem.

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Speaker 2: We'll see if the New York Appellate Court here deviates

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Speaker 2: from the way most other courts have ruled. Thanks so much, Eric,

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Speaker 2: that's professor Eric Goldman of a Santa Clara University School

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Speaker 2: of Law. Coming up next on the Bloomberg Law Show.

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Speaker 2: The growing trend of presidents using temporary appointments for top

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Speaker 2: roles in government. President Trump has installed another loyalist in

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Speaker 2: one of the most powerful US attorney's offices in the country.

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Speaker 2: Former Fox News host Janine Piro has taken over as

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Speaker 2: the interim US Attorney for DC from Ed Martin, who

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Speaker 2: was the interim US Attorney for close to one hundred

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Speaker 2: and twenty days. The interim nature of both appointments test

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Speaker 2: the bounds of a federal statute governing temporary officials and

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Speaker 2: reflects a growing trend of presidents leaning on temporary appointments

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Speaker 2: for top roles in government. My guest is Anne Joseph O'Connell,

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Speaker 2: a professor at Stanford Law School who specializes in political appointments.

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Speaker 2: Will you explain the provisions that are at play when

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Speaker 2: a US attorney is given an interim appointment.

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Speaker 7: So, when there's not a Senate confirmed US attorney in

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Speaker 7: a particular district, there are two statutes that can provide

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Speaker 7: for temporary service. So the first, what we call interim

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Speaker 7: US attorneys, is a specific provision in the United States

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Speaker 7: Code called Section five forty six, and that provision allows

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Speaker 7: for the Attorney General to choose a temporary interim US

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Speaker 7: attorney for the district in which there is not a

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Speaker 7: Senate confirmed person. There are no restrictions on who the

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Speaker 7: Attorney General can pick, so they don't have to pick

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Speaker 7: someone who's within the Department of Justice, unlike this other

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Speaker 7: statutory provision. And so the Attorney General can pick an

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Speaker 7: interim US attorney and that person can serve for one

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Speaker 7: hundred and twenty days under section five forty six, and

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Speaker 7: then after that one hundred twenty days expires, the district

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Speaker 7: court may right may appoint a US attorney to serve

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Speaker 7: until there is a Senate confirmed one.

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Speaker 2: So what happened here is the term for ed Martin

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Speaker 2: was about to run out, and before the district court

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Speaker 2: could appoint someone, President Trump nominated as another interim US attorney.

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Speaker 2: Jeanine Piro I mean, is that according to the.

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Speaker 7: Rules, Well, it depends whether you're looking at the text

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Speaker 7: of the rule or the intent of the provision. Under

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Speaker 7: the text, I think it's permitted. The provision Section five

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Speaker 7: forty six does not explicitly bar successive one hundred twenty

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Speaker 7: day appointments. And I should also note that even if

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Speaker 7: the district courts had chosen someone, the President in all

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Speaker 7: likelihood could have fired the district court pick and picked

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Speaker 7: another interim US attorney or turned this other statue the

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Speaker 7: Federal Vacancy's Reform Act. So I think the text permits

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Speaker 7: successive appointments. There's no explicit bar on it. There's no

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Speaker 7: provision that provides for a penalty if you see these

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Speaker 7: successive appointments end. In the past, we have seen successive appointments.

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Speaker 7: Now that's the text. When Congress reimposed time limits, so

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Speaker 7: put back the one hundred and twenty day constraint on

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Speaker 7: how long interim US attorneys can serve. They did that

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Speaker 7: in two thousand and seven after a US attorney scandal

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Speaker 7: involving Attorney General Darto Gonzalez, who had fired a number

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Speaker 7: of US attorneys. And the scandal was not whether the

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Speaker 7: president or the Attorney General could fire US attorneys. It

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Speaker 7: was about the reason that was given for those firings.

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Speaker 7: But at the time that it happened, there was no

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Speaker 7: limit on how long interim US attorneys could serve. And

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Speaker 7: this had occurred after September eleventh. There was a period

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Speaker 7: of years where there was kind of no time limit.

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Speaker 7: But then in two thousand and seven, Congress put back

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Speaker 7: this time limit, and I think the putting back of

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Speaker 7: the time limit suggests strongly that the intent of Congress

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Speaker 7: was not to have endless interim appointments of US attorneys.

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Speaker 2: And was that the intent of the Framers as well.

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Speaker 2: In other words, they wanted the Senate to advise and consent.

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Speaker 3: So we have.

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Speaker 7: Had Senate confirmed appointments since the start of the United

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Speaker 7: States Constitution under the appointments Clause, and interestingly, we've had

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Speaker 7: statutes that provide for temporary appointments from about the same time.

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Speaker 7: The very first Vacancies Act, which applied generally, was in

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Speaker 7: seventeen ninety two, and there was another one in seventeen

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Speaker 7: ninety five. There it gets a little tricky about kind

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Speaker 7: of what were the time limits, because in the seventeen

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Speaker 7: ninety five Act, Congress imposed the six month time limit

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Speaker 7: on acting officials.

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Speaker 2: Here a lot of actings. Have US presidents been using

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Speaker 2: interim positions more and more so I have done.

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Speaker 7: Some research on recent administrations and looking at the very

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Speaker 7: highest level of positions, so the heads of agencies, cabinet

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Speaker 7: secretaries in particular, and definitely recent administrations, and that would

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Speaker 7: include President Obama, President Trump's first term and President Biden

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Speaker 7: have heavily relied on acting officials, much more, I would say,

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Speaker 7: than their predecessors in terms of modern government.

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Speaker 2: What's the reason for this? I know that President Trump

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Speaker 2: in the past has said, you know, he likes the

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Speaker 2: idea of it.

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Speaker 3: Is it because it's.

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Speaker 2: Difficult to get people through the Senate? I mean, what's

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Speaker 2: the reason then they're using it more.

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Speaker 7: I think there are several reasons. The first is it

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Speaker 7: takes time to nominate people. Though I will say that

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Speaker 7: President Trump in his second term has a much faster

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Speaker 7: nominations pace than he had in his first term. I

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Speaker 7: mean six or sevenfold more nominations at one hundred day

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Speaker 7: mark in his second term than in his first term.

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Speaker 7: But nominations still takes time to find the people and

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Speaker 7: to formally nominate them. There's a vetting that occurs, and

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Speaker 7: I think for President Trump that vetting has really focused

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Speaker 7: on loyalty, whereas in other administrations might be focusing on

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Speaker 7: ethical considerations, expertise and the like. And then there's the

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Speaker 7: confirmation process. And so even as we have now and

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Speaker 7: even as we did for President Biden, have a Senate

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Speaker 7: controlled by the same party as the White House. It's

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Speaker 7: still takes time because individual senators. Even though there's no

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Speaker 7: longer a sixty vote threshold to move a nomination to

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Speaker 7: a confirmation vote that went away in November twenty thirteen,

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Speaker 7: individual senators can still delay the confirmation's process, right, And

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Speaker 7: we saw this with Senator Tuberville in the Biden administration.

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Speaker 7: We've seen this in other cases as well. Right, Democrats

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Speaker 7: do it to Republicans. Republicans do it to Democrats, and

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Speaker 7: that can slow it down. And so I think both

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Speaker 7: the nominations and confirmation process make acting officials attractive. But

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Speaker 7: I would also say that what I think is a

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00:26:36,840 --> 00:26:41,639
Speaker 7: large reason is that acting officials don't require Senate confirmation,

441
00:26:41,960 --> 00:26:45,080
Speaker 7: and so you can pick people to serve in the

442
00:26:45,119 --> 00:26:48,639
Speaker 7: temporary capacity that the Senate might not confirm. So in

443
00:26:48,680 --> 00:26:53,400
Speaker 7: President Trump's first term, the Republicans, as reported by the media,

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00:26:53,600 --> 00:26:56,639
Speaker 7: did not want to confirm Ken Kucinelli to a senior

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00:26:56,680 --> 00:27:00,479
Speaker 7: post in the Department of Homeland Security, but through acting

446
00:27:00,640 --> 00:27:05,000
Speaker 7: appointments and delegations of authority, mister Kuchinelli was able to

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00:27:05,080 --> 00:27:08,240
Speaker 7: serve in very high profile roles in DXS. And I

448
00:27:08,240 --> 00:27:12,560
Speaker 7: think a similar story right for Ed Martin that Republicans

449
00:27:12,640 --> 00:27:17,200
Speaker 7: balked and he was able through the interim provision to serve,

450
00:27:17,240 --> 00:27:19,480
Speaker 7: whereas you know, if he had just been put up

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00:27:19,520 --> 00:27:21,879
Speaker 7: as a nominee, not as an interim, he might not

452
00:27:22,000 --> 00:27:22,840
Speaker 7: have gotten true.

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Speaker 2: Has President Trump pushed the limits of the Vacancy's Act

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00:27:27,440 --> 00:27:29,199
Speaker 2: further than other presidents?

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Speaker 7: I think the Vacancy's Act is pretty capacious. It allows

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00:27:33,840 --> 00:27:37,080
Speaker 7: the government to function. I think the Vacancies Act should

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00:27:37,080 --> 00:27:40,760
Speaker 7: be reformed in certain ways because I think it allows

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00:27:40,800 --> 00:27:44,360
Speaker 7: more than perhaps what we want for an accountable government.

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00:27:44,960 --> 00:27:48,800
Speaker 7: But I think in this term, President Trump is really

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00:27:48,920 --> 00:27:52,760
Speaker 7: pushing an argument that no previous president has pushed, which

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00:27:52,800 --> 00:27:56,000
Speaker 7: is that he believes that if the Vacancy's Act does

462
00:27:56,040 --> 00:28:01,679
Speaker 7: not apply, he has inherent article to authority name acting officials.

463
00:28:01,760 --> 00:28:04,960
Speaker 7: And this has come up in the Inner America Foundation

464
00:28:05,359 --> 00:28:08,399
Speaker 7: and the African Development Foundation, these are entities not covered

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00:28:08,440 --> 00:28:12,679
Speaker 7: by the Vacancies Act, where President Trump has named acting

466
00:28:12,720 --> 00:28:18,480
Speaker 7: officials to Senate confirmed Board positions relying on claimed inherent

467
00:28:18,600 --> 00:28:21,800
Speaker 7: article to authority. It seems with the firing of the

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00:28:21,840 --> 00:28:25,080
Speaker 7: Librarian of Congress that if the Library of Congress is

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00:28:25,119 --> 00:28:27,280
Speaker 7: not subject to the Vacancies Act, and I don't think

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00:28:27,280 --> 00:28:29,960
Speaker 7: it is President Trump. The White House is indicated that

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00:28:30,000 --> 00:28:33,679
Speaker 7: there is Article two authority to name an acting librarian,

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00:28:33,760 --> 00:28:36,919
Speaker 7: and I think this is an outrageous claim. We have

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00:28:36,960 --> 00:28:39,640
Speaker 7: an appointments clause, we have a recess appointments clause. It

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00:28:39,720 --> 00:28:43,200
Speaker 7: is true that the Vacancies Act and specific agency provisions

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00:28:43,200 --> 00:28:46,640
Speaker 7: like section five forty six for interim US attorneys, do

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00:28:46,920 --> 00:28:51,200
Speaker 7: allow vast use of temporary appointments, but outside of those,

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00:28:51,640 --> 00:28:54,640
Speaker 7: presidents need to rely on the appointments clause or the

478
00:28:54,680 --> 00:28:55,440
Speaker 7: recess appointment.

479
00:28:55,600 --> 00:28:59,160
Speaker 2: So some are saying that with the US attorney, for example,

480
00:28:59,480 --> 00:29:05,120
Speaker 2: with Piero becoming the second interim US Attorney for DC,

481
00:29:05,880 --> 00:29:10,240
Speaker 2: that defendants might be able to challenge some of the

482
00:29:10,480 --> 00:29:15,200
Speaker 2: you know, prosecutions, et cetera under her because of this issue.

483
00:29:15,440 --> 00:29:19,479
Speaker 7: I think they would definitely have standing to sue. And

484
00:29:19,520 --> 00:29:22,880
Speaker 7: I think their argument would be that under five forty six,

485
00:29:23,080 --> 00:29:26,520
Speaker 7: successive one hundred and twenty day appointments are not allowed.

486
00:29:27,040 --> 00:29:30,120
Speaker 7: And I think that is a plausible argument. I just

487
00:29:30,200 --> 00:29:34,040
Speaker 7: don't think it's a winning argument. I think that courts

488
00:29:34,080 --> 00:29:36,800
Speaker 7: will look at the text. Right as Justice Kagan says,

489
00:29:36,800 --> 00:29:39,719
Speaker 7: we're all textless now, that the courts will look at

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00:29:39,760 --> 00:29:42,960
Speaker 7: the text and see that successive one hundred and twenty

491
00:29:43,040 --> 00:29:46,520
Speaker 7: day appointments are not barred. It's happened in the past

492
00:29:46,800 --> 00:29:49,920
Speaker 7: and permitted. Now, that doesn't mean it shouldn't change. I

493
00:29:49,960 --> 00:29:53,960
Speaker 7: mean Congress could amend five forty six to make it

494
00:29:54,080 --> 00:29:57,240
Speaker 7: clear that you get one one hundred twenty day appointment,

495
00:29:57,800 --> 00:30:00,440
Speaker 7: then the district court gets to choose. And then I

496
00:30:00,480 --> 00:30:03,720
Speaker 7: should note that there is an alternative to these successive

497
00:30:03,720 --> 00:30:07,000
Speaker 7: one hundred and twenty day appointments. While a nomination might

498
00:30:07,040 --> 00:30:10,280
Speaker 7: be pending to a US attorney slot, is that I

499
00:30:10,400 --> 00:30:13,680
Speaker 7: believe that the Federal Vacancy's Reform Act is available for

500
00:30:13,840 --> 00:30:19,160
Speaker 7: temporary appointments to these positions. Now, the constraint why I

501
00:30:19,200 --> 00:30:22,240
Speaker 7: think the Trump administration doesn't want to turn to the

502
00:30:22,320 --> 00:30:25,600
Speaker 7: Vacancies Act is that under the Vacancy's Act, you can't

503
00:30:25,640 --> 00:30:29,160
Speaker 7: just choose anyone. You can't choose an outsider like the

504
00:30:29,280 --> 00:30:32,320
Speaker 7: current person. You can't choose an outsider to come in

505
00:30:32,520 --> 00:30:35,760
Speaker 7: as an acting US attorney. You either need to choose

506
00:30:35,760 --> 00:30:39,760
Speaker 7: someone who is the first assistant to the US Attorney right,

507
00:30:39,800 --> 00:30:42,960
Speaker 7: which is typically a career person. You need to choose

508
00:30:42,960 --> 00:30:46,280
Speaker 7: someone who has Senate confirmed already to another position, so

509
00:30:46,320 --> 00:30:49,160
Speaker 7: it has already kind of gone through the Senate process,

510
00:30:49,560 --> 00:30:52,200
Speaker 7: or you have to choose someone who was in the

511
00:30:52,280 --> 00:30:55,360
Speaker 7: agency for at least ninety days in the year before

512
00:30:55,400 --> 00:30:56,040
Speaker 7: the vacancy.

513
00:30:56,400 --> 00:30:59,280
Speaker 2: So finally, you think there needs to be reform here.

514
00:30:59,680 --> 00:31:01,400
Speaker 1: I think the.

515
00:31:01,320 --> 00:31:07,280
Speaker 7: Law of governing temporary appointments are pretty broad and likely

516
00:31:07,440 --> 00:31:11,840
Speaker 7: too broad. On the other hand, we want the government

517
00:31:12,000 --> 00:31:14,680
Speaker 7: to function. We don't want the government to come to

518
00:31:14,760 --> 00:31:19,880
Speaker 7: a standstill. And so finding the balance between getting Senate

519
00:31:19,880 --> 00:31:25,560
Speaker 7: confirmed appointments through a dysfunctional appointments process and having the

520
00:31:25,600 --> 00:31:30,160
Speaker 7: government function is tricky. And sometimes we're on the right

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00:31:30,200 --> 00:31:33,040
Speaker 7: side of the balance, and sometimes we're on the wrong

522
00:31:33,240 --> 00:31:37,040
Speaker 7: side of the balance. And so I think that Congress

523
00:31:37,200 --> 00:31:40,400
Speaker 7: really has a role to play in constraining the use

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00:31:40,440 --> 00:31:42,080
Speaker 7: of acting an interim appointment.

525
00:31:42,320 --> 00:31:44,520
Speaker 2: So we'll start counting now to see if Janine Pirou

526
00:31:44,840 --> 00:31:49,400
Speaker 2: is nominated to be the permanent US Attorney for DC

527
00:31:49,640 --> 00:31:53,400
Speaker 2: before the one hundred and twenty days expires. Thanks so

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00:31:53,480 --> 00:31:57,120
Speaker 2: much for joining me today. That's Professor and Joseph O'Connell

529
00:31:57,200 --> 00:32:00,320
Speaker 2: of Stanford Law School, and that's it for the edition

530
00:32:00,360 --> 00:32:02,959
Speaker 2: of the Bloomberg Law Show. Remember you can always get

531
00:32:03,000 --> 00:32:06,160
Speaker 2: the latest legal news on our Bloomberg Law podcasts. You

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00:32:06,160 --> 00:32:10,280
Speaker 2: can find them on Apple Podcasts, Spotify, and at www

533
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Speaker 2: dot bloomberg dot com, slash podcast slash Law, and remember

534
00:32:14,720 --> 00:32:17,680
Speaker 2: to tune into The Bloomberg Law Show every weeknight at

535
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