Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2: It's been three years since a white supremacist opened fire
Speaker 2: inside a grocery store in Buffalo and killed ten people.
Speaker 3: This tragedy shocked us. It devastated us. It pushed us
Speaker 3: to where we thought were beyond our limits. But it
Speaker 3: didn't break us. It didn't break us. Instead, it revealed
Speaker 3: a strength that runs deep in the veins of the city,
Speaker 3: the strength of a community that binds together and refuses
Speaker 3: to be defined by acts of hate.
Speaker 2: The eighteen year old shooter pleaded guilty to all state
Speaker 2: charges and was sentenced to eleven concurrent life sentences. The
Speaker 2: federal case against him is ongoing, but survivors and families
Speaker 2: of the victims are seeking to hold social media companies responsible.
Speaker 2: They're suing internet giants Google, Meta, Amazon, and Reddit for
Speaker 2: publishing racist content that alleged motivated the shooter to commit
Speaker 2: a hate crime by targeting people in a historically black
Speaker 2: neighborhood hundreds of miles from his home.
Speaker 4: Our case is fundamentally about the isolation, obsession, lack of
Speaker 4: impulse control, and desensitization resulting from the neurological and psychological
Speaker 4: trauma inflicted on a teenager's brain by a highly addictive
Speaker 4: social media product.
Speaker 2: And today both sides were in a New York appellate
Speaker 2: courtroom where the social media companies are arguing that they
Speaker 2: can't be held liable for the racist content on their sites.
Speaker 2: The victim's families say the algorithms the Internet sites used
Speaker 2: to deliver tailored content to users should be considered products
Speaker 2: under the state's product liability law. Here are the attorneys
Speaker 2: for the victims families and Meta.
Speaker 1: Any time our manufacturer places a dangerous product into the
Speaker 1: stream of commerce that they reasonably know creates an unreasonable
Speaker 1: risk of harm to the public, are libel are in
Speaker 1: New York state products liability law. It's plain and dirt simple.
Speaker 5: And there are two sort of foundational problems here that
Speaker 5: get us outside of the realm of traditional product liability.
Speaker 5: One is that communicating intangible information is not a product,
Speaker 5: and the second is that services are not products. And
Speaker 5: here we have both of those things. Product liability law
Speaker 5: is geared to the tangible world. That's the language of
Speaker 5: the seminal Winter case.
Speaker 2: It would be a first in New York if a
Speaker 2: court found a non tangible thing to be a product
Speaker 2: for purposes of liability law. My guest is Eric Goleman,
Speaker 2: a professor at Santa Clara University Law School and co
Speaker 2: director of the High Tech Law Institute. Eric, can you
Speaker 2: tell us about the allegations of the plaintiffs in these cases?
Speaker 6: The case involved the mass shooting in a Buffalo supermarket
Speaker 6: by a white supremacist, and the basic gist of the
Speaker 6: claims is that the shooter was radicalized on Facebook, and
Speaker 6: so in order to fit that into legal doctrines, there's
Speaker 6: a variety of different claims that the victims and families
Speaker 6: have made in order to explain what's wrong with that?
Speaker 6: Why does that actually create legal rights for the victims does?
Speaker 6: Some of those include a claim that Facebook was negligent,
Speaker 6: that it should have done something different to protect the victims,
Speaker 6: and some of it is based on what we sometimes
Speaker 6: call products liability. That Facebook is a product that is
Speaker 6: dangerous and as a result, any harms is caused by
Speaker 6: a dangerous product can be attributable to the supplier of
Speaker 6: that product.
Speaker 2: Are the plaintiffs bringing it under the product liability law?
Speaker 2: In order to get around sex.
Speaker 6: No. Section two thirty is a defense whereas the planets
Speaker 6: have to still figure out a claim that actually fits
Speaker 6: their facts. However, they do want to pick claims that
Speaker 6: are not preempted by Section two thirty, which says, in short,
Speaker 6: that websites aren't liable for third party content. So the
Speaker 6: idea is that the planets are arguing that they're not
Speaker 6: suing to hold Facebook liabel for the third party content.
Speaker 6: They're suing based on Facebook's contribution to the radicalization of
Speaker 6: the shooter.
Speaker 2: So when you think of product liability, you think of
Speaker 2: tangible objects. You know, a mechanical device that injures you,
Speaker 2: something like that. Has a New York court ever found
Speaker 2: a streaming service or social media to be a product
Speaker 2: under the state's product liability law.
Speaker 6: For decades, there have been legal theories that have held
Speaker 6: that the supply of physical items that are at risk
Speaker 6: of causing physical injury are live for those physical injuries.
Speaker 6: And one of the classic old cases involved exploding coca
Speaker 6: cola bottles, and if you didn't manufacture and fill the
Speaker 6: coca cola bottle properly, it could literally explode and create
Speaker 6: shards of laughs that were projectiles. And so the idea
Speaker 6: is that we want manufacturers to be more careful in
Speaker 6: the manufacture of an item like that because of the
Speaker 6: physical risk of poses when that item is now in consumers' homes.
Speaker 6: There's a very bright line in those doctrines between physical
Speaker 6: items they are capable of causing physical injury and intangible
Speaker 6: thinks or services which do not pose the same risk
Speaker 6: of sending glass yards as projectiles, because there's literally nothing
Speaker 6: like that in their possession. So the laws normally limit
Speaker 6: products liability theories to actual physical products, not to services
Speaker 6: like Internet services like Facebook. So it's a leap of
Speaker 6: the theory to try and expand it to cover services.
Speaker 6: This theory wasn't designed for that purpose, it's not optimized
Speaker 6: to do so, and unlike the regulation of Coca Cola
Speaker 6: bottles exploding with glass chards, there's significant speech implications if
Speaker 6: we tried to regulate the dissemination of information as if
Speaker 6: it's an exploding coke bottle. So there have been plaintiffs
Speaker 6: across the country that have been trying out the theories
Speaker 6: that internet services are subject to products liability doctrines, and
Speaker 6: courts have split on that issue. Most courts have rejected it,
Speaker 6: some have entertained it, and so it's a live frontier
Speaker 6: in internet law today.
Speaker 2: And have there been rulings bipellate courts on that.
Speaker 6: Yes and no. There's been a variety of rulings in
Speaker 6: different fact circumstances. But there's a leading case in this
Speaker 6: area that just came out in February from the Fourth
Speaker 6: Circuit involved a very very similar case involving the shooter
Speaker 6: who allegedly was radicalized on Facebook, and the plaintiffs argued
Speaker 6: products liability is part of the reasons why Facebook should
Speaker 6: be liable, and in that case the Federal peblic Court
Speaker 6: shut all that down and said that Facebook qualified for
Speaker 6: Section two thirty. Everything that the Planets are arguing was
Speaker 6: trying to hold Facebook liable for the third party content
Speaker 6: available on service, and therefore the Planets lose. So the
Speaker 6: plainliffs in this case aren't directly bound by that ruling,
Speaker 6: but clearly there's a strong message from that ruling that
Speaker 6: the Planetf's arguments should not be successful.
Speaker 2: Does that issue depend on the state's product liability law,
Speaker 2: because those laws differ from state to state.
Speaker 6: It can we have to look at the terms of
Speaker 6: the exact statute, what it says it covers. That might
Speaker 6: very well restrict plaints claims, but not expand them. In
Speaker 6: other words, there's some limit to the theory that as
Speaker 6: far as it can go, at some point it has
Speaker 6: to stop, either because of doctrines like Section two thirty,
Speaker 6: which Congress enacted as the way to prevent that kind
Speaker 6: of explan or because of the First Amendment that the
Speaker 6: Constitution does not permit a physical based legal doctrine to
Speaker 6: extend to the dissemination of the speech.
Speaker 2: If the court allows the case to go forward, well,
Speaker 2: the plaintiffs have to prove that Facebook or the other
Speaker 2: platforms led to the radicalization of the shooter. And how
Speaker 2: difficult will that be?
Speaker 6: Definitely they'll have to show that what we call causation
Speaker 6: when it comes to negligence. I believe that that will
Speaker 6: also be relevant in the context of strict products liability,
Speaker 6: and it will be difficult. And causation was also an
Speaker 6: issue in the Federal Appellate Court. Rulin I mentioned from
Speaker 6: the Fourth Circuit and the court independently said there was
Speaker 6: not sufficient causation in that case. And when we think
Speaker 6: about what causes someone to radicalize into a white supremacist
Speaker 6: and even words, what causes a white supremacist to then
Speaker 6: decide to engage in mass murder. There's so many things
Speaker 6: that contribute to that outcome, and it's very difficult to
Speaker 6: pull out one piece and say that's the cause. They
Speaker 6: should bear all the burden of responsibility. In fact, it
Speaker 6: really is a whole of society failure to have people
Speaker 6: who end up in that circumstance, and we really need
Speaker 6: to look at our society across the board to figure
Speaker 6: out what went wrong and what we ought to be
Speaker 6: doing differently, and to try and pin it on anyone
Speaker 6: player in the ecosystem. To say Facebook was the reason
Speaker 6: why this particular person pulled the trigger, I really think
Speaker 6: kind of denies the reality of how we've all contributed
Speaker 6: to a society that can lead to these outcomes and.
Speaker 2: Explain how Section two thirty would work here As a.
Speaker 6: Defense, So the planets started arguing that Facebook radicalized the shooter,
Speaker 6: and Facebook itself normally doesn't publish content itself that it authored.
Speaker 6: Its primary way of engaging in content distribution is to
Speaker 6: gather third party content like the Facebook post that we
Speaker 6: all make as the every day activity, and then share
Speaker 6: that with an audience. And so the content that allegedly
Speaker 6: radicalized the shooter didn't come from Facebook. Facebook most was
Speaker 6: the mechanism by which some author matched with the shooter.
Speaker 6: And so it's impossible really to describe Facebook's role in
Speaker 6: radicalizing the shooter without talking about the content that regalized
Speaker 6: the shooter, all of which came from a third party.
Speaker 6: And if third party content can't create liability for Facebook
Speaker 6: section two, there you will apply a note.
Speaker 2: Michael Bloomberg, the founder and majority owner of Bloomberg LP,
Speaker 2: the parent company of Bloomberg Radio, is a donor to
Speaker 2: groups that support gun control, including every Town for Gun Safety,
Speaker 2: which represented the plaintiffs in this case in the lower courts.
Speaker 2: Coming up next on the Bloomberg Law Show, I'll continue
Speaker 2: this conversation with Professor Eric Goleman of Santa Clara University
Speaker 2: Law School. We'll talk more about the algorithms that issue
Speaker 2: in the case. Survivors and families of the victims of
Speaker 2: the mass shooting in a Buffalo supermarket three years ago
Speaker 2: are suing Internet giants Google, Meta, Amazon, and Reddit for
Speaker 2: publishing racist content that allegedly motivated the shooter to commit
Speaker 2: a hate crime targeting people in an historically black neighborhood
Speaker 2: hundreds of miles from his Home. The plaintiffs blame the
Speaker 2: proprietary algorithms the companies use.
Speaker 1: Putting people in groups. There's something called confirmation bias. And
Speaker 1: when you put people in groups where they're getting these
Speaker 1: white supremacist theories and these calls to violence and these
Speaker 1: calls to make a race war and think that that's
Speaker 1: the right thing. That's what happened to Peyton Gendron, and
Speaker 1: that's what this lawsuit is about him.
Speaker 2: But the Internet companies say they're protected from liability under
Speaker 2: the law, which says no interactive computer service provider can
Speaker 2: be treated as the publisher or speaker of any information
Speaker 2: provided by another information content provider. I've been talking with
Speaker 2: Professor Eric Goldman of Santa Clara University Law School. Eric
Speaker 2: tell us about the plaintiff's claims about the algorithms.
Speaker 6: So, in order for the shooter to get access to
Speaker 6: the radicalizing content, somebody has to upload it, and then
Speaker 6: Facebook has to make the match to present that to
Speaker 6: the reader to the shooter in this case, and so
Speaker 6: plainists have often claimed that it was the algorithm Facebook
Speaker 6: created that led to this radicalization. Now, there are a
Speaker 6: couple of problems with that theory. One is it was
Speaker 6: expressly rejected. In the Fourth Circuit opinion that I mentioned earlier,
Speaker 6: Federal Peller Court said that's not a way of getting
Speaker 6: around Section two thirty. The other piece, and the Appellate
Speaker 6: Court mentioned this as well, that in order for Facebook
Speaker 6: to do anything differently to prevent that requalization, it would
Speaker 6: have to re architect its entire service. In other words,
Speaker 6: there's not a way of it just changing the algorithm
Speaker 6: to eliminate the risk of rattle and clovation with changing
Speaker 6: any other element of its algorithm. So, in other words,
Speaker 6: there's no easy fix here for Facebook. Facebook work the
Speaker 6: way it was designed to work. It may matches between
Speaker 6: people and content they might be interested in. Unfortunately, some
Speaker 6: people are interested in content that is antisocial. Facebook's algorithm
Speaker 6: treats that the same as all other content.
Speaker 2: The director of the Center for Democracy and Technologies Free
Speaker 2: Expression Project, which filed in a MEEKS brief in support
Speaker 2: of the social media companies, said if the automatic ranking
Speaker 2: and delivery of content is separated from the Section two
Speaker 2: thirty liability shield, it will suddenly make many pieces of
Speaker 2: content open to liability and incentivized platforms that use automated
Speaker 2: ranking systems to deliver content to suppress or eliminate delivery
Speaker 2: of content they're worried about. So basically, would there be
Speaker 2: a chilling effect if that happens.
Speaker 6: I think that's a riff on what I was just saying,
Speaker 6: and maybe said better than I did. But let me
Speaker 6: take another cut at it. So, if Facebook is liable
Speaker 6: for radicalization content, and if and I'm going to hypothesize this,
Speaker 6: it's true, people might debate it. There is no way
Speaker 6: for Facebook to know which content is radicalized in or not,
Speaker 6: or to properly separate that from the pro social content
Speaker 6: that it would prefer to disseminate. Then Facebook basically becomes
Speaker 6: the financial guaranteur of any harms that are caused by
Speaker 6: people that can be traced back to someone's consumption content
Speaker 6: on Facebook. We've seen so many cases in this genre.
Speaker 6: This is not a unique case in Buffalo. Many times,
Speaker 6: victims of shootings have claimed that the shooter was exposed
Speaker 6: to content on social media, and social media should be
Speaker 6: responsible for this, and that's just not tenable. Social media
Speaker 6: cannot act as the financial guaranteur of all the shootings
Speaker 6: that take place in the world, so then they have
Speaker 6: to do something different. If they become the financial guarantur
Speaker 6: they cannot exist in their current form.
Speaker 2: The easiest path for the Appellate Division right now in
Speaker 2: this case is to allow the case to go forward
Speaker 2: and to say, you know, the facts have to be
Speaker 2: developed before we can make a decision on whether or
Speaker 2: not this is subject to the state's product liability law.
Speaker 6: So that's essentially what the lower court did. The lower
Speaker 6: court basically said, I understand Facebook's defenses, and yet I
Speaker 6: need to see more facts than before I'm prepared to
Speaker 6: make the conclusion that products valuability applies, or even that
Speaker 6: Section two thirty applies. So one possibility is that pel
Speaker 6: Court could say that District Court was right. Let the
Speaker 6: case continue to evolve in its ordinary manner, and once
Speaker 6: we get more information, then we'll be able to figure
Speaker 6: out what defenses to actually apply in the circumstance. Most
Speaker 6: cases evolving section two thirty don't do that. Most cases
Speaker 6: in section two thirty. And at the motion the Smiths,
Speaker 6: because it is obvious on the face there's nothing that
Speaker 6: would be produced in a discovery that would show that
Speaker 6: Section two thirty didn't apply. And here I don't think
Speaker 6: anyone's contesting the Facebook provided or authored the radicalizing content.
Speaker 6: The allegation is that it matched the shooter with their
Speaker 6: party content. So everything that the court needs to know
Speaker 6: about Section two theories, I think or are you available
Speaker 6: to it. So punting on that question actually would be
Speaker 6: a disservice to Facebook and I think to all other
Speaker 6: social media that expect to be able to avoid the
Speaker 6: liability for things that they're not legally responsible for.
Speaker 2: It's interesting that the plaintiffs to your chose state court
Speaker 2: were in the other case you were discussing the plaintiffs
Speaker 2: chose federal court.
Speaker 6: You know, planets get to pick the venue that they
Speaker 6: think is the best place for them to achieve justice.
Speaker 6: So it's completely logical that they might conclude that New
Speaker 6: York state courts is opposed to New York federal courts
Speaker 6: are a better venue for them. But I would hope
Speaker 6: that the New York state courts will still take a
Speaker 6: look at what's going on in the rest of the country,
Speaker 6: because this is not a novel issue across the country,
Speaker 6: and the case law is very clear that the New
Speaker 6: York state trial courts got a wrong.
Speaker 2: How important is this case as a precedent, let's say,
Speaker 2: for other cases around the country, and is it important
Speaker 2: or is it just, you know, another one of the
Speaker 2: cases that you've been talking about. Is there any import
Speaker 2: to it?
Speaker 6: So every case that involves the situation where social media
Speaker 6: allegedly contributed to some offline harm is important because if
Speaker 6: those cases succeed, then all social media services face an
Speaker 6: extreme amount of liability that may make them financially untenable.
Speaker 6: So it's like the social media services have to bat
Speaker 6: a thousand in these cases. If they only bout nine
Speaker 6: to ninety nine and one case gets through, that one
Speaker 6: case could potentially change the entire Internet ecosystem. So if
Speaker 6: this case ends up like essentially all the others, and
Speaker 6: the planiffs don't succeed, then this case became unimportant. It's
Speaker 6: just one of the many. If for whatever reason, this
Speaker 6: case does succeed, then this could be the case that
Speaker 6: reshapes the Internet. And the district court opinion in this
Speaker 6: case was so troubling, and because it clearly deviated from
Speaker 6: pressing around the country, and because it basically said I
Speaker 6: can't make any judgments, even though many people thought that
Speaker 6: the court had all the facts that needed to make
Speaker 6: a judgment. And so if that's the case, it opens
Speaker 6: up the door for unpredictable results, and that unpredictable is
Speaker 6: actually its own form of danger to the Internet.
Speaker 2: Any final thoughts.
Speaker 6: You know, the Buffalo shoe was horrific. You know, all
Speaker 6: these mass murders are just heartbreaking. You know, they're a
Speaker 6: sign of pathology in our country. They just absolutely tear
Speaker 6: me up. And the fact that the shooter was espousing
Speaker 6: the great replacement theory is even more troubling that this
Speaker 6: theory continues to find an audience in our country when
Speaker 6: it's both a factual but it's also deeply corrosive. I
Speaker 6: will add that want to blame Facebook for the dissemination
Speaker 6: of the great replacement theory, but many leading figures in
Speaker 6: our country, whether that's media pundits or actual government officials,
Speaker 6: have also dabbled in the great replacement theory, and so
Speaker 6: to me, the idea that Facebook ratoclides this shooter misses
Speaker 6: the whole ecosystem.
Speaker 2: We'll see if the New York Appellate Court here deviates
Speaker 2: from the way most other courts have ruled. Thanks so much, Eric,
Speaker 2: that's professor Eric Goldman of a Santa Clara University School
Speaker 2: of Law. Coming up next on the Bloomberg Law Show.
Speaker 2: The growing trend of presidents using temporary appointments for top
Speaker 2: roles in government. President Trump has installed another loyalist in
Speaker 2: one of the most powerful US attorney's offices in the country.
Speaker 2: Former Fox News host Janine Piro has taken over as
Speaker 2: the interim US Attorney for DC from Ed Martin, who
Speaker 2: was the interim US Attorney for close to one hundred
Speaker 2: and twenty days. The interim nature of both appointments test
Speaker 2: the bounds of a federal statute governing temporary officials and
Speaker 2: reflects a growing trend of presidents leaning on temporary appointments
Speaker 2: for top roles in government. My guest is Anne Joseph O'Connell,
Speaker 2: a professor at Stanford Law School who specializes in political appointments.
Speaker 2: Will you explain the provisions that are at play when
Speaker 2: a US attorney is given an interim appointment.
Speaker 7: So, when there's not a Senate confirmed US attorney in
Speaker 7: a particular district, there are two statutes that can provide
Speaker 7: for temporary service. So the first, what we call interim
Speaker 7: US attorneys, is a specific provision in the United States
Speaker 7: Code called Section five forty six, and that provision allows
Speaker 7: for the Attorney General to choose a temporary interim US
Speaker 7: attorney for the district in which there is not a
Speaker 7: Senate confirmed person. There are no restrictions on who the
Speaker 7: Attorney General can pick, so they don't have to pick
Speaker 7: someone who's within the Department of Justice, unlike this other
Speaker 7: statutory provision. And so the Attorney General can pick an
Speaker 7: interim US attorney and that person can serve for one
Speaker 7: hundred and twenty days under section five forty six, and
Speaker 7: then after that one hundred twenty days expires, the district
Speaker 7: court may right may appoint a US attorney to serve
Speaker 7: until there is a Senate confirmed one.
Speaker 2: So what happened here is the term for ed Martin
Speaker 2: was about to run out, and before the district court
Speaker 2: could appoint someone, President Trump nominated as another interim US attorney.
Speaker 2: Jeanine Piro I mean, is that according to the.
Speaker 7: Rules, Well, it depends whether you're looking at the text
Speaker 7: of the rule or the intent of the provision. Under
Speaker 7: the text, I think it's permitted. The provision Section five
Speaker 7: forty six does not explicitly bar successive one hundred twenty
Speaker 7: day appointments. And I should also note that even if
Speaker 7: the district courts had chosen someone, the President in all
Speaker 7: likelihood could have fired the district court pick and picked
Speaker 7: another interim US attorney or turned this other statue the
Speaker 7: Federal Vacancy's Reform Act. So I think the text permits
Speaker 7: successive appointments. There's no explicit bar on it. There's no
Speaker 7: provision that provides for a penalty if you see these
Speaker 7: successive appointments end. In the past, we have seen successive appointments.
Speaker 7: Now that's the text. When Congress reimposed time limits, so
Speaker 7: put back the one hundred and twenty day constraint on
Speaker 7: how long interim US attorneys can serve. They did that
Speaker 7: in two thousand and seven after a US attorney scandal
Speaker 7: involving Attorney General Darto Gonzalez, who had fired a number
Speaker 7: of US attorneys. And the scandal was not whether the
Speaker 7: president or the Attorney General could fire US attorneys. It
Speaker 7: was about the reason that was given for those firings.
Speaker 7: But at the time that it happened, there was no
Speaker 7: limit on how long interim US attorneys could serve. And
Speaker 7: this had occurred after September eleventh. There was a period
Speaker 7: of years where there was kind of no time limit.
Speaker 7: But then in two thousand and seven, Congress put back
Speaker 7: this time limit, and I think the putting back of
Speaker 7: the time limit suggests strongly that the intent of Congress
Speaker 7: was not to have endless interim appointments of US attorneys.
Speaker 2: And was that the intent of the Framers as well.
Speaker 2: In other words, they wanted the Senate to advise and consent.
Speaker 3: So we have.
Speaker 7: Had Senate confirmed appointments since the start of the United
Speaker 7: States Constitution under the appointments Clause, and interestingly, we've had
Speaker 7: statutes that provide for temporary appointments from about the same time.
Speaker 7: The very first Vacancies Act, which applied generally, was in
Speaker 7: seventeen ninety two, and there was another one in seventeen
Speaker 7: ninety five. There it gets a little tricky about kind
Speaker 7: of what were the time limits, because in the seventeen
Speaker 7: ninety five Act, Congress imposed the six month time limit
Speaker 7: on acting officials.
Speaker 2: Here a lot of actings. Have US presidents been using
Speaker 2: interim positions more and more so I have done.
Speaker 7: Some research on recent administrations and looking at the very
Speaker 7: highest level of positions, so the heads of agencies, cabinet
Speaker 7: secretaries in particular, and definitely recent administrations, and that would
Speaker 7: include President Obama, President Trump's first term and President Biden
Speaker 7: have heavily relied on acting officials, much more, I would say,
Speaker 7: than their predecessors in terms of modern government.
Speaker 2: What's the reason for this? I know that President Trump
Speaker 2: in the past has said, you know, he likes the
Speaker 2: idea of it.
Speaker 3: Is it because it's.
Speaker 2: Difficult to get people through the Senate? I mean, what's
Speaker 2: the reason then they're using it more.
Speaker 7: I think there are several reasons. The first is it
Speaker 7: takes time to nominate people. Though I will say that
Speaker 7: President Trump in his second term has a much faster
Speaker 7: nominations pace than he had in his first term. I
Speaker 7: mean six or sevenfold more nominations at one hundred day
Speaker 7: mark in his second term than in his first term.
Speaker 7: But nominations still takes time to find the people and
Speaker 7: to formally nominate them. There's a vetting that occurs, and
Speaker 7: I think for President Trump that vetting has really focused
Speaker 7: on loyalty, whereas in other administrations might be focusing on
Speaker 7: ethical considerations, expertise and the like. And then there's the
Speaker 7: confirmation process. And so even as we have now and
Speaker 7: even as we did for President Biden, have a Senate
Speaker 7: controlled by the same party as the White House. It's
Speaker 7: still takes time because individual senators. Even though there's no
Speaker 7: longer a sixty vote threshold to move a nomination to
Speaker 7: a confirmation vote that went away in November twenty thirteen,
Speaker 7: individual senators can still delay the confirmation's process, right, And
Speaker 7: we saw this with Senator Tuberville in the Biden administration.
Speaker 7: We've seen this in other cases as well. Right, Democrats
Speaker 7: do it to Republicans. Republicans do it to Democrats, and
Speaker 7: that can slow it down. And so I think both
Speaker 7: the nominations and confirmation process make acting officials attractive. But
Speaker 7: I would also say that what I think is a
Speaker 7: large reason is that acting officials don't require Senate confirmation,
Speaker 7: and so you can pick people to serve in the
Speaker 7: temporary capacity that the Senate might not confirm. So in
Speaker 7: President Trump's first term, the Republicans, as reported by the media,
Speaker 7: did not want to confirm Ken Kucinelli to a senior
Speaker 7: post in the Department of Homeland Security, but through acting
Speaker 7: appointments and delegations of authority, mister Kuchinelli was able to
Speaker 7: serve in very high profile roles in DXS. And I
Speaker 7: think a similar story right for Ed Martin that Republicans
Speaker 7: balked and he was able through the interim provision to serve,
Speaker 7: whereas you know, if he had just been put up
Speaker 7: as a nominee, not as an interim, he might not
Speaker 7: have gotten true.
Speaker 2: Has President Trump pushed the limits of the Vacancy's Act
Speaker 2: further than other presidents?
Speaker 7: I think the Vacancy's Act is pretty capacious. It allows
Speaker 7: the government to function. I think the Vacancies Act should
Speaker 7: be reformed in certain ways because I think it allows
Speaker 7: more than perhaps what we want for an accountable government.
Speaker 7: But I think in this term, President Trump is really
Speaker 7: pushing an argument that no previous president has pushed, which
Speaker 7: is that he believes that if the Vacancy's Act does
Speaker 7: not apply, he has inherent article to authority name acting officials.
Speaker 7: And this has come up in the Inner America Foundation
Speaker 7: and the African Development Foundation, these are entities not covered
Speaker 7: by the Vacancies Act, where President Trump has named acting
Speaker 7: officials to Senate confirmed Board positions relying on claimed inherent
Speaker 7: article to authority. It seems with the firing of the
Speaker 7: Librarian of Congress that if the Library of Congress is
Speaker 7: not subject to the Vacancies Act, and I don't think
Speaker 7: it is President Trump. The White House is indicated that
Speaker 7: there is Article two authority to name an acting librarian,
Speaker 7: and I think this is an outrageous claim. We have
Speaker 7: an appointments clause, we have a recess appointments clause. It
Speaker 7: is true that the Vacancies Act and specific agency provisions
Speaker 7: like section five forty six for interim US attorneys, do
Speaker 7: allow vast use of temporary appointments, but outside of those,
Speaker 7: presidents need to rely on the appointments clause or the
Speaker 7: recess appointment.
Speaker 2: So some are saying that with the US attorney, for example,
Speaker 2: with Piero becoming the second interim US Attorney for DC,
Speaker 2: that defendants might be able to challenge some of the
Speaker 2: you know, prosecutions, et cetera under her because of this issue.
Speaker 7: I think they would definitely have standing to sue. And
Speaker 7: I think their argument would be that under five forty six,
Speaker 7: successive one hundred and twenty day appointments are not allowed.
Speaker 7: And I think that is a plausible argument. I just
Speaker 7: don't think it's a winning argument. I think that courts
Speaker 7: will look at the text. Right as Justice Kagan says,
Speaker 7: we're all textless now, that the courts will look at
Speaker 7: the text and see that successive one hundred and twenty
Speaker 7: day appointments are not barred. It's happened in the past
Speaker 7: and permitted. Now, that doesn't mean it shouldn't change. I
Speaker 7: mean Congress could amend five forty six to make it
Speaker 7: clear that you get one one hundred twenty day appointment,
Speaker 7: then the district court gets to choose. And then I
Speaker 7: should note that there is an alternative to these successive
Speaker 7: one hundred and twenty day appointments. While a nomination might
Speaker 7: be pending to a US attorney slot, is that I
Speaker 7: believe that the Federal Vacancy's Reform Act is available for
Speaker 7: temporary appointments to these positions. Now, the constraint why I
Speaker 7: think the Trump administration doesn't want to turn to the
Speaker 7: Vacancies Act is that under the Vacancy's Act, you can't
Speaker 7: just choose anyone. You can't choose an outsider like the
Speaker 7: current person. You can't choose an outsider to come in
Speaker 7: as an acting US attorney. You either need to choose
Speaker 7: someone who is the first assistant to the US Attorney right,
Speaker 7: which is typically a career person. You need to choose
Speaker 7: someone who has Senate confirmed already to another position, so
Speaker 7: it has already kind of gone through the Senate process,
Speaker 7: or you have to choose someone who was in the
Speaker 7: agency for at least ninety days in the year before
Speaker 7: the vacancy.
Speaker 2: So finally, you think there needs to be reform here.
Speaker 1: I think the.
Speaker 7: Law of governing temporary appointments are pretty broad and likely
Speaker 7: too broad. On the other hand, we want the government
Speaker 7: to function. We don't want the government to come to
Speaker 7: a standstill. And so finding the balance between getting Senate
Speaker 7: confirmed appointments through a dysfunctional appointments process and having the
Speaker 7: government function is tricky. And sometimes we're on the right
Speaker 7: side of the balance, and sometimes we're on the wrong
Speaker 7: side of the balance. And so I think that Congress
Speaker 7: really has a role to play in constraining the use
Speaker 7: of acting an interim appointment.
Speaker 2: So we'll start counting now to see if Janine Pirou
Speaker 2: is nominated to be the permanent US Attorney for DC
Speaker 2: before the one hundred and twenty days expires. Thanks so
Speaker 2: much for joining me today. That's Professor and Joseph O'Connell
Speaker 2: of Stanford Law School, and that's it for the edition
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