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Speaker 1: This is Bloomberg Law with June Grosseo from Bloomberg Radio. Look,

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Speaker 1: I just want to keep serving. I'm at nineteen and

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Speaker 1: a half years, i have sixty combat missions in Iraqi, Afghanistan.

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Speaker 1: I'm a certified test pilot, flown over twenty one airframes

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Speaker 1: at seventeen hundred flight hours in aircraft like the F

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Speaker 1: eighteen that you saw on top Gun two. I just

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Speaker 1: want to keep doing my job.

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Speaker 2: Emily Shilling is a decorated Navy commander in combat pilot.

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Speaker 2: She is also transgender and is challenging President Trump's ban

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Speaker 2: on transgender people serving in the military. A federal judge

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Speaker 2: had blocked the ban, finding there was no evidence that

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Speaker 2: transgender troops posed a threat to military readiness, but this

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Speaker 2: week the conservative justices on the Supreme Court, over the

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Speaker 2: descents of the three liberal justices, pause that order to

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Speaker 2: allow the Trump administration to start discharging thousands of transgender

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Speaker 2: service members, including experienced officers who've served openly for years.

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Speaker 2: Defense Secretary Pete Hegseth said the military is leaving wokeness

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Speaker 2: and weakness behind.

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Speaker 3: No more pronouns, no more climate change obsession, no more

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Speaker 3: emergency vaccine mandates, no more dudes in dresses. We're done

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Speaker 3: with that.

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Speaker 2: My guest is constitutional law expert David super a professor

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Speaker 2: at Georgetown Law. This is a one paragraph order, so

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Speaker 2: we have no idea what their reasoning was. We just

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Speaker 2: know that the three liberal justices dissented. What's your take

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Speaker 2: on this decision.

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Speaker 4: I think it's disappointing because the plainiffs made a compelling case.

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Speaker 4: This looks like a classic equal protection claim. The executive order,

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Speaker 4: as plainiffs say, is dripping with consmpt or transgender people.

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Speaker 4: So this is big a treat not military preparedness, and

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Speaker 4: I would have hoped the Court would have treated it accordingly.

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Speaker 4: But that doesn't mean that they've resolved it on the merits.

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Speaker 2: A federal judge in Washington State had blocked the ban.

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Speaker 2: Actually two federal judges have blocked it. Judge Benjamin Settle said,

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Speaker 2: it's not an especially close question. Will you tell us

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Speaker 2: about the claims of the transgender troops in this case?

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Speaker 4: There? I think most central claim is that they're being

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Speaker 4: denied equal protection of the law. The Supreme Court is

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Speaker 4: long held that the Fifth Amendment's requirement of due process

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Speaker 4: implicates equal protection of the law, and that the federal

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Speaker 4: government may not deny people equal protection, particularly if it

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Speaker 4: is discriminating on the basis of a historically sensitive category.

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Speaker 4: The soldiers are alleging that they're being discriminated against both

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Speaker 4: because of sex and because of their trans gender status,

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Speaker 4: and that the government has nowhere near enough adequate justification

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Speaker 4: for doing this.

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Speaker 2: In a case like this, shouldn't they have allowed the

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Speaker 2: status quo to remain in place now the Trump administration

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Speaker 2: is going to be able to discharge thousands of troops.

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Speaker 4: That certainly would be the usual practice and the practice

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Speaker 4: the Court has insisted on in many cases involving the

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Speaker 4: Biden administration, where they prohibited the change from taking place

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Speaker 4: until it was properly litigated. This opinion from the District

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Speaker 4: Court in Washington is quite long, quite detailed, quite careful.

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Speaker 4: You can agree with it or not. That it is

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Speaker 4: certainly not a casual opinion, and one would expect that

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Speaker 4: it would stand and preserve the status quo unless there

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Speaker 4: was a compelling reason otherwise. It's disappointing that the Supreme

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Speaker 4: Court was unable or unwilling to state any compelling reason

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Speaker 4: for this change of the status quo.

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Speaker 2: At the Supreme Court, what the Trump administration argue was

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Speaker 2: that judges are required to show substantial deference to the

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Speaker 2: Defense Department's judgment on military issues. Do you think that

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Speaker 2: deference is the main reason why the Supreme Court decided

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Speaker 2: to lift the injunction.

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Speaker 4: Only suspect it is the President and has been asking

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Speaker 4: for deference on many military and foreign affairs matters. The

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Speaker 4: Court denied him that deference on his efforts to use

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Speaker 4: the Alien Enemies Act. And my guess is the the

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Speaker 4: Court is trying to balance the scales in that regard.

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Speaker 2: And as far as whether irreparable injury will be suffered,

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Speaker 2: the order requires the transgender troops to voluntarily separate from

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Speaker 2: the military or face quote involuntary separation, which is a

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Speaker 2: stain on their records that could deny them veterans' benefits,

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Speaker 2: So that scenario seems like irreparable injury.

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Speaker 4: I mean, in principle, the administration could be ordered to

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Speaker 4: restore their prior status if it ultimately loses this litigation.

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Speaker 4: But the whole point of the reparable injury is that

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Speaker 4: litigants are forced to suffer circumstances that can't be fully corrected,

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Speaker 4: and in the best case scenario, having one's military service

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Speaker 4: interrupted having to gamble one's thea benefits away. All of

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Speaker 4: that is classic irreparable injury.

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Speaker 2: In Jump's first term, the Supreme Court allowed an earlier

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Speaker 2: transgender military band to take effect, but that first ban

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Speaker 2: exempted current troops, so it was more like a ban

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Speaker 2: on enlistment. This goes further because it's going to allow

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Speaker 2: them to discharge people who are currently served.

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Speaker 4: Yes, this is very different than what we saw before,

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Speaker 4: and that's I think the core of what the lower

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Speaker 4: court found is that there simply was no evidence to

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Speaker 4: support this. If the government had an important reason for

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Speaker 4: an action, then deference would owde and the lower court

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Speaker 4: firmly upheld that. But it found that this was not

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Speaker 4: a military judgment but a political judgment by the president

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Speaker 4: that the Secretary of Defense carried out without gathering any

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Speaker 4: evidence that these people are not able to serve their

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Speaker 4: country effectively. And what's striking about the plaintiffs in this

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Speaker 4: case is that we know a lot about them. They've

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Speaker 4: been serving, they've been performing, and if they weren't, they

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Speaker 4: could certainly be thrown out on an individual basis, But

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Speaker 4: throwing them out on the basis of prejudice when we

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Speaker 4: have ample evidence that they're effective sol and service people.

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Speaker 4: Is disturbing and it's ignorant.

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Speaker 2: I'm surprised that one of the three liberals didn't write

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Speaker 2: a descent.

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Speaker 5: Are you not?

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Speaker 4: Necessarily if the liberals write a descent, then either the

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Speaker 4: majority or some justice in the majority write an opinion

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Speaker 4: defending what was done, and that would tend to lock

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Speaker 4: in positions. This is such a disturbing and difficult to

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Speaker 4: justify action that I think the liberals may have decided

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Speaker 4: that it's best that no one put pen to paper

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Speaker 4: any more than necessary right now and hope that this

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Speaker 4: can be reversed when it's heard on the merits.

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Speaker 2: So this was about the order from the judge in

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Speaker 2: Washington State. A judge in Washington, DC has also blocked

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Speaker 2: the policy, and the Court of Appeals for the DC

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Speaker 2: Circuit put that on hold temporarily while it heard or arguments.

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Speaker 2: I mean, how does that case work out when you

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Speaker 2: have the Supreme Court lifting the injunction of the Washington

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Speaker 2: State judge.

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Speaker 4: That's precisely why the absence of opinions is so significant

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Speaker 4: and so telling. Here Panels in the Ninth Circuit and

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Speaker 4: the DC Circuit will write opinions about this, and it

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Speaker 4: will almost certainly come back to the Supreme Court on

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Speaker 4: the merits. So it's really wide open. There are many

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Speaker 4: grounds for denying a stay or granting a stay, and

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Speaker 4: precisely because the Court didn't write an opinion, we don't

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Speaker 4: know which of those it is.

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Speaker 6: It could be.

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Speaker 4: Something as technical as concerns about the standing of plaintiffs

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Speaker 4: or concerned about whether they made a proper demonstration of

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Speaker 4: irreparable injury. So there's nothing about this action that prejudges

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Speaker 4: the merits. They have lifted injunctions in other cases saying

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Speaker 4: we don't think the plaintiffs are likely to prevail on

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Speaker 4: the merits. They didn't say that here.

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Speaker 2: So if this could come back to the Court and

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Speaker 2: the justices could have a different opinion.

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Speaker 4: Well it would come back to the Court in a

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Speaker 4: different form, and they could very well be inclined on

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Speaker 4: the merit to find for the plaintiffs, even if they

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Speaker 4: didn't think an injunction pending litigation was appropriate.

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Speaker 2: I also want to ask you about a controversial comment

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Speaker 2: by President Trump on Meet the Press last Sunday. Don't

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Speaker 2: you need to uphold the Constitution of the United States?

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Speaker 2: As press?

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Speaker 4: I don't know. I have to respond by saying, again,

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Speaker 4: I have brilliant lawyers.

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Speaker 7: That work for me, and they are going to obviously

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Speaker 7: follow what the Supreme Court said.

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Speaker 2: I mean, in the past he has talked about his

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Speaker 2: Article two powers under the Constitution.

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Speaker 4: Well, the Constitution has many things in it. It has

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Speaker 4: Article too, which I'm sure he feels in the to

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Speaker 4: uphold than those pesky Article one and Article three and

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Speaker 4: Bill of Rights. Perhaps he's less enthusiastic about those. I

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Speaker 4: think that the people that need to hear his remarks

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Speaker 4: are the Supreme Court, and the Supreme Court has, in

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Speaker 4: a variety of ways, all spring then kicking the can

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Speaker 4: down the road and hoping the administration will come around

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Speaker 4: to acting lawfully. Arguably, the action we were discussing concerning

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Speaker 4: the transgender ban in the military is another example of

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Speaker 4: the court kicking things down the road. But a president

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Speaker 4: who has harshly criticized judges, called some judges that he

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Speaker 4: appointed communists, and has expressed great indifference about whether to

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Speaker 4: comply with Supreme Court decrees and haves not complied with

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Speaker 4: several Supreme Court and lower Court decrees, is not going

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Speaker 4: to voluntarily change too. And the Supreme Court is going

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Speaker 4: to have to decide whether they are going to insist

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Speaker 4: upon compliance with the law.

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Speaker 2: They'll certainly have opportunities to do that considering the record

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Speaker 2: number of emergency applications from the Trump administration to the

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Speaker 2: Supreme Court. Thanks for joining me, David. That's Professor David

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Speaker 2: Super of Georgetown Law. I'm June Grosso, and you're listening

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Speaker 2: to Bloomberg.

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Speaker 4: We the jury find the defendant Benjamin David Elliott guilty

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Speaker 4: of murder, is charging the indictment.

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Speaker 8: We the jury, being gullian, powdered and sworn to find

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Speaker 8: the defendant Adamkoy guilty of murder as he stands charge

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Speaker 8: in count one of the indictment, sign this fourth day

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Speaker 8: of November twenty twenty four.

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Speaker 4: The jury unanimously finds the murder willful, deliberate, and premeditated.

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Speaker 1: The jury unanimously finds the murder was committed by means

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Speaker 1: of lying.

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Speaker 4: In wait.

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Speaker 2: No matter how it's phrased, a jury verdict is considered sacrosanct.

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Speaker 2: A unanimous decision reached by jurors beyond beyond a reasonable

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Speaker 2: doubt after deliberating on the evidence presented in a criminal trial,

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Speaker 2: but in a completely unorthodox move, the new US attorney

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Speaker 2: in Los Angeles is interfering with a jury's verdict of guilt.

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Speaker 2: After a three day trial, a jury convicted former LA

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Speaker 2: County Sheriff's deputy Trevor Kirk of a felony for using

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Speaker 2: excessive force when he assaulted a black woman outside a

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Speaker 2: supermarket two years ago. He's facing a ten year prison

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Speaker 2: sentence for that felony conviction. But now, in an extraordinary,

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Speaker 2: almost unheard of move, the US Attorney Bill Aseli is

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Speaker 2: trying to override the jury's verdict by giving Kirk a

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Speaker 2: plea deal, allowing him to plead to a misdemeanor, and

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Speaker 2: asking the trial judge to strike the jury's finding. Three

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Speaker 2: LA prosecutors have resigned in protest. My guest is former

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Speaker 2: federal prosecutor Jimmy Garoula, a professor at Notre Dame Lassuit Goal. So, Jimmy,

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Speaker 2: this former sheriff's deputy is supposed to be sentenced this

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Speaker 2: month on a felony conviction, facing ten years in prison,

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Speaker 2: and then suddenly the new US attorney comes in and

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Speaker 2: gives him a deal to plead to a misdemeanor and

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Speaker 2: ask the judge to strike the jury's finding that Kirk

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Speaker 2: injured the victim, which is what made it a felony.

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Speaker 6: Well, it's an extraordinary action and it doesn't appear to

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Speaker 6: be justified based on the facts or the law. And

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Speaker 6: when I say that, what I mean is that if

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Speaker 6: the claim was that he had not received a fair trial, well,

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Speaker 6: that's the purpose of a direct appeal. The defendant would

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Speaker 6: appeal the conviction and highlight the heirs or alleged airs

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Speaker 6: that were conducted during the jury trial. But there doesn't

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Speaker 6: appear to be any allegation by the state or the

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Speaker 6: defendant that his trial was not fair, did not comport

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Speaker 6: with due process of law. Alternatively, if the claim is, oh,

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Speaker 6: we have newly discovered evidence that proves his innocence, well

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Speaker 6: there's a whole set of post conviction proceeds to deal

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Speaker 6: with that process, to petition the court through a petition

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Speaker 6: for post conviction relief to vacate the conviction. And there's

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Speaker 6: no claims relegations made to that effect that, oh, you know,

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Speaker 6: he's actually innocent and we just learned after the conviction

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Speaker 6: of this new evidence that proves his innocence. And so

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Speaker 6: then the question is, well, what is a justification. What's changed?

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Speaker 6: What's a justification for this extraordinary action basically to override

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Speaker 6: the verdict of the jury. And it appears that it's

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Speaker 6: simply that there's been a change of administration. There's a

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Speaker 6: new US attorney, and he was prosecuted under the previous

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Speaker 6: Biden administration, at least the initial indictment was brought at

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Speaker 6: that time and the charges were filed, and the new

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Speaker 6: sheriff in town wants to undo what the jury did,

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Speaker 6: which suggests to me that the motivation or justification is

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Speaker 6: purely political.

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Speaker 2: Yeah, and there is no explanation for why they're giving

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Speaker 2: Kirk this plea deal. And the trial judge in the

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Speaker 2: case denied emotion by the defense for acquittal last month

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Speaker 2: and said Kirk acted aggressively towards the woman from the outset,

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Speaker 2: and then the footage of the incident was sufficient evidence

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Speaker 2: for a jury to find that he'd had used objectively

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Speaker 2: unreasonable force.

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Speaker 6: Yeah. So as a matter of fact, the court is

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Speaker 6: finding that there was sufficient evidence presented a trial to

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Speaker 6: justify the conviction. And as a result, the defendant received

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Speaker 6: the full panoply of due process protections. I mean, he

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Speaker 6: was represented by counsel prosecution had to prove his guilt

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Speaker 6: beyond a reasonable doubt. The jury had to find him

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Speaker 6: guilty unanimously. And so there again does not appear to

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Speaker 6: be any factual basis justification or legal justification for overturning

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Speaker 6: the conviction. And what it suggests to me is that

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Speaker 6: this is another example of the Trump administration kind of

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Speaker 6: ignoring or evading the rule of law in the case

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Speaker 6: of undocumented immigrants. In the claim is well, they're not

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Speaker 6: entitled to do process in this particular case with respect

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Speaker 6: to Deputy Trevor Kirk, he received full due process, but

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Speaker 6: the administrator, the Trump administration, didn't like the result. And

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Speaker 6: because they didn't like the result, then they're seeking to

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Speaker 6: somehow vacate the jury conviction, which I think undermines the

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Speaker 6: rule of law and undermines the public's confidence in the

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Speaker 6: criminal justice system and the validity of jury convictions.

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Speaker 2: Also, the four federal prosecutors who are working on the

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Speaker 2: case refuse to sign the plea agreement and withdrew from

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Speaker 2: the case, and then three of them, including the chief

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Speaker 2: of the Public Corruption and Civil Rights Section, resigned from

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Speaker 2: the office.

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Speaker 6: Yeah, they stepped down, I mean, which was an expression

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Speaker 6: of their disagreement with this result and their perception understanding

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Speaker 6: that this was just an unfair, unjustified action by their supervisor,

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Speaker 6: and again is not justified by any legal principle and

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Speaker 6: any legal president, any legal authority. And you know, there's

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Speaker 6: kind of a parallel here. I mean with respective plea bargains.

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Speaker 6: For example, as a defendant enters into a plea bargain,

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Speaker 6: he may withdraw the plea bargain after the fact, but

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Speaker 6: only based upon a finding by the court that withdrawing

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Speaker 6: the Guilli plea would be in the interests of justice.

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Speaker 6: And so what's the standard here if the judges ultimately

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Speaker 6: to decide whether or not a valid jury verdict should

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Speaker 6: be overridden for political considerations. I mean, that doesn't strike

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Speaker 6: me as as advancing the interests of justice. In fact,

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Speaker 6: it's just the opposite. It's ignoring justice. Justice was done

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Speaker 6: in this case. And the absence again of any claims

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Speaker 6: of wrongdoing, unfair trial, and effective assistance accounts any of

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Speaker 6: those types of legal arguments. This was a valid conviction

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Speaker 6: and it shouldn't be ignored and disregarded by the Department

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Speaker 6: of Justice, apparently the only reason being that they just

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Speaker 6: didn't like the end result.

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Speaker 2: Yeah, well, there was sort of a social media campaign

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Speaker 2: of support for Kirk, and a spokesperson for the LA

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Speaker 2: Sheriff's Professional Association wrote a letter to Trump urging him

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Speaker 2: to intervene before the case went to trial.

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Speaker 6: That's the political reason. That was a political influence that

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Speaker 6: apparently caused the US attorney to seek to override the

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Speaker 6: jury's conviction. And that's not a legitimate basis. I mean,

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Speaker 6: convictions should be based on the facts and the evidence,

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Speaker 6: not on political issues, political influence, political affiliation with one

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Speaker 6: party or another. That's not democracy in the United States.

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Speaker 6: That's not the way democracy works in this country. This

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Speaker 6: type of outcome is going to serve to undermine the

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Speaker 6: public's confidence in the rule of law in the criminal

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Speaker 6: justice system, and they're going to say, well, how come

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Speaker 6: this guy got such favorable treatment and result? What about

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Speaker 6: the other guy? You know, what about somebody who wasn't

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Speaker 6: a political favorite, what about someone who wasn't a law

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Speaker 6: enforcement officer, what about someone who's an ordinary citizen. Would

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Speaker 6: the ordinary citizen received this type of outcome? A guilty

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Speaker 6: verdict being overturned for political reasons highly unlikely?

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Speaker 2: And why should I waste days weeks or even months

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Speaker 2: sometimes serving on a jury, when you're going to throw

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Speaker 2: out my verdict exactly.

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Speaker 6: It has so many negative, corrupting implications. I'm really hopeful

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Speaker 6: that the judge rejects this motion to withdraw the guilty

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Speaker 6: verdict and permit Kirk to plead guilty to a misdemeanor.

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Speaker 6: I mean, it's convicted of a felony, and now they

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Speaker 6: want him to plead to a misdemeanor, and then they're

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Speaker 6: going to give him probation. It's just shocking, a shocking

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Speaker 6: action by the Department of Justice.

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Speaker 2: The final decision is up to the trial judge, and

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Speaker 2: he's questioning whether he even has the authority to grant

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Speaker 2: the government's motion to strike part of the jury's verdict.

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Speaker 2: He's asking both sides to file briefs on it.

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Speaker 6: It's such an extraordinary action. I really strain to come

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Speaker 6: up with the legal authority. What's the legal authority for

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Speaker 6: the judge, the trial judge, to vacate a valid jury conviction,

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Speaker 6: And I'm not aware of any I'm not aware of

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Speaker 6: any statute. I'm not aware of any case precedent that

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Speaker 6: would afford the trial judge to that authority. So that's

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Speaker 6: clearly an issue. The problem here is who's going to appeal.

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Speaker 6: I mean, if the judge does this and vacates the

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Speaker 6: jury conviction, who's going to appeal it? Because the parties

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Speaker 6: are in agreement. The defense certainly would like this outcome,

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Speaker 6: and the prosecutor's office US Attorney's Office is proposing this result,

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Speaker 6: and so there would be no way to review judicially

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Speaker 6: review the trial court's decision, and so I think it

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Speaker 6: would be final.

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Speaker 2: Also, if he's allowed to pleed down to a misdemeanor,

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Speaker 2: that means he could continue to work as a law

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Speaker 2: enforcement officer and he could retain his right to own

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Speaker 2: a firearm.

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Speaker 6: Yeah, I think that's part of it. I think that's

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Speaker 6: part of the justification and at least from the US

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Speaker 6: attorneys of it. Oh, we don't want him to have

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Speaker 6: the stigma of a felon and all of the implications

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Speaker 6: that are associated with being a convicted felon, you know,

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Speaker 6: which again would prohibit him from possessing a firearm. So

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Speaker 6: that's a federal crime for a fella to possessed a firearm,

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Speaker 6: and so he couldn't work in any capacity that would

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Speaker 6: require him to carry a firearm. But you know, that's

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Speaker 6: what happens to defendants every day. You know, defendives are

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Speaker 6: convicted of felonies and that's one of the implications they're

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Speaker 6: prohibited from possessing a firearm. So what's so unique about

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Speaker 6: this guy? Why does he get a pass? Why should

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Speaker 6: he be permitted to avoid that consequence of a felony conviction.

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Speaker 6: I can think of none other than political.

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Speaker 2: It's reminiscent of all the federal prosecutors who resigned when

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Speaker 2: the Manhattan US Attorney's office was told to drop the

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Speaker 2: charges against New York City Mayor Eric Adams so that

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Speaker 2: he could help the Trump administration in its immigration arrests.

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Speaker 6: Right. I think it's another instance where the line prosecutors

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Speaker 6: that are doing the heavy lifting in these cases are

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Speaker 6: just outraged by the political influence that the Trump administration

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Speaker 6: is having on the performance of their duties and obligations.

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Speaker 6: You know, they know, and I know, having served as

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Speaker 6: a former federal prosecutor, that these convictions should be based

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Speaker 6: solely on the facts and the evidence, limited by the law,

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Speaker 6: and they shouldn't be influenced by political actors, by political parties,

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Speaker 6: by political administrations. That's not justice, that's not how democracy

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Speaker 6: supposed to work and operate. In the United States of America.

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Speaker 2: US attorneys are political appointments. But do you think that

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Speaker 2: Trump's picks are even more charged politically? I mean, he

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Speaker 2: just withdrew the controversial nomination of Ed Martin to be

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Speaker 2: the DC US Attorney.

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Speaker 6: Well, I think the problem is is that we know

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Speaker 6: that this particular president values loyalty, perhaps above all things, loyalty,

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Speaker 6: and so whatever he wants done, he expects the persons

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Speaker 6: that he has placed in those positions to do what

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Speaker 6: he wants them to do with no questions asking. When

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Speaker 6: I was a prosecutor, I never ever was looking over

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Speaker 6: my shoulder thinking, oh, I better not decide this matter

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Speaker 6: this way, or take this particular action because of political

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Speaker 6: concerns or political retaliation, or I'm going to be demoted

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Speaker 6: if I do this or I do that. That never

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Speaker 6: entered my mind. You know, the political implications, whether this

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Speaker 6: would favor a political party or disfavor a political party,

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Speaker 6: was never a consideration ever, and now it appears to

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Speaker 6: be a consideration. Always there's this kind of black cloud

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Speaker 6: I think over federal prosecutors as to always there going

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Speaker 6: to be retaliation, and that's very chilling. That's very chilling.

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Speaker 6: It's very disturbing, and it's not what one would expect

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Speaker 6: to happen in a free, open democracy. That's what you'd

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Speaker 6: expect and what we often see in countries that are

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Speaker 6: run by authoritarian governments and authoritarian presidents.

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Speaker 2: Can you think of any case even similar to what

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Speaker 2: the US attorney is doing here or trying to do here.

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Speaker 6: I can't stress enough just how shocking, how unprecedented it is.

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Speaker 6: I mean, I've been at this. I was a prosecutor

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Speaker 6: for nine years before I joined the law faculty here.

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Speaker 6: I've been here for decades now. I cannot recall a

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Speaker 6: federal case where this has happened where the prosecutors said,

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Speaker 6: oh oops, you know, yeah, we initiated this prosecution, We

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Speaker 6: initiated the criminal charges, we advocated to the jury for conviction,

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Speaker 6: and now we want that jury conviction to be vacated,

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Speaker 6: not for anything that was done wrong at the trial

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Speaker 6: or because of insufficient evidence or newly discovered evidence approved

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Speaker 6: his innocence now, just because now the new sheriff in

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Speaker 6: town doesn't like the result.

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Speaker 2: And there is also the possibility of a presidential part

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Speaker 2: in Thanks so much, Jimmy that's Professor Jimmy Garula of

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Speaker 2: Notre Dame Law School.

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Speaker 7: You know we have a public health crisis in this country.

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Speaker 2: Eight But the day before talking about our nation's public

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Speaker 2: health crisis, Health Secretary Robert F. Kennedy Junior had announced

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Speaker 2: a massive restructuring of the Department of Health and Human Services.

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Speaker 2: It included cutting more than twenty thousand employees, nearly a

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Speaker 2: quarter of its workforce, reducing regional offices from ten down

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Speaker 2: to five, and collapsing twenty eight divisions into fifteen. The

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Speaker 2: cuts were made as part of a directive the Trump

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Speaker 2: administration has dubbed make America Healthy Again. But Democratic attorneys

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Speaker 2: general from nineteen states and DC say the sweeping restructuring

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Speaker 2: is doing just the opposite, destroying life saving programs and

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Speaker 2: leaving states to pick up the bill for mounting health costs.

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Speaker 2: New York Attorney General Letitia James is leading their federal

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Speaker 2: lawsuit filed on Monday, asking a court to stop the

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Speaker 2: dismantling and mass firings and to restore the programs that

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Speaker 2: have been cut.

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Speaker 7: These actions are dangerous, cruel, and illegal. They defy Congress's authority,

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Speaker 7: and they violate federal law, and that is why today

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Speaker 7: I'm leading a lawsuit joined by Democratic attorneys general across

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Speaker 7: the country to stop this administration from tearing down a

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Speaker 7: public health infrastructure.

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Speaker 2: Joining me is healthcare attorney Harry Nelson, a partner at

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Speaker 2: Leech Tishman Nelson Hardiman Harry. In general, how has RFKE

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Speaker 2: Junior changed the Department?

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Speaker 5: There's been a pretty significant amount of changes. I think

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Speaker 5: the biggest change has been employee layoffs affecting nearly every

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Speaker 5: major sub agency within the Department of Health and Human Services,

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Speaker 5: including the Center for Disease Control, the FDA, the National

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Speaker 5: Institute of Health, and others. There's just a lot fewer

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Speaker 5: personnel in place. As you mentioned, there's been a consolidation

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Speaker 5: of twenty eight total sub agencies within Health and Human

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Speaker 5: Services down to fifteen, with various mergers and eliminations, a

441
00:26:31,760 --> 00:26:35,520
Speaker 5: number of closures of public health programs. The FDA passed

442
00:26:35,560 --> 00:26:39,280
Speaker 5: on a bird flu vaccine application due to some of

443
00:26:39,280 --> 00:26:43,440
Speaker 5: the lab shutdowns. The Center for Disease Control halted measles

444
00:26:43,520 --> 00:26:48,200
Speaker 5: testing despite a nationwide outbreak that we've been seeing. NIH

445
00:26:48,320 --> 00:26:51,879
Speaker 5: has been suspending research trials. Those have been the major disruptions.

446
00:26:51,920 --> 00:26:54,600
Speaker 5: There's been a few smaller ones. There was a specific

447
00:26:54,800 --> 00:26:59,200
Speaker 5: post nine to eleven program for first responders that has

448
00:26:59,280 --> 00:27:03,800
Speaker 5: been interrupt did because of staff shutdowns, and of course DOGE,

449
00:27:04,400 --> 00:27:10,240
Speaker 5: the Department of Government Efficiency is like continuing streamlining organizationally

450
00:27:10,680 --> 00:27:13,760
Speaker 5: getting rid of people, and every day is bringing new

451
00:27:13,840 --> 00:27:17,159
Speaker 5: changes and tell us about the allegations.

452
00:27:16,480 --> 00:27:17,280
Speaker 2: In the lawsuit.

453
00:27:17,880 --> 00:27:22,359
Speaker 5: Sure, so they filed suit in Rhode Island, and they've

454
00:27:22,440 --> 00:27:25,080
Speaker 5: essentially alleged that all of the actions we just described

455
00:27:25,240 --> 00:27:28,480
Speaker 5: are illegal and they undermined the Department of Health and

456
00:27:28,560 --> 00:27:33,959
Speaker 5: Human Services ability to fulfill its statutory obligations. So specifically,

457
00:27:33,960 --> 00:27:38,360
Speaker 5: they alleged a violation of the Administrative Procedure Act, which

458
00:27:38,400 --> 00:27:42,520
Speaker 5: are the rules by which government program changes happen, so

459
00:27:42,560 --> 00:27:45,520
Speaker 5: that there's notice and an opportunity to be heard with

460
00:27:45,640 --> 00:27:49,200
Speaker 5: what rules are made and where there's any changes. There's

461
00:27:49,200 --> 00:27:51,840
Speaker 5: an allegation in the case of a violation of the

462
00:27:51,880 --> 00:27:56,040
Speaker 5: separation of Powers, that the executive branch has essentially stepped

463
00:27:56,040 --> 00:28:00,439
Speaker 5: in and dismantled programs that were authorized specifically by Congress,

464
00:28:00,640 --> 00:28:05,320
Speaker 5: invading Congress's authority. And there's an allegation that many of

465
00:28:05,359 --> 00:28:08,800
Speaker 5: the specific laws related to public health are being violated,

466
00:28:09,200 --> 00:28:13,080
Speaker 5: you know, like the first responders example, where there's people

467
00:28:13,119 --> 00:28:16,600
Speaker 5: out there, stakeholders who are beneficiaries of these programs whose

468
00:28:16,680 --> 00:28:20,080
Speaker 5: rights are being violated. So those are the primary legal

469
00:28:20,119 --> 00:28:21,160
Speaker 5: theories in this case.

470
00:28:21,440 --> 00:28:24,959
Speaker 2: Do they take aim at Kennedy's larger public health agenda

471
00:28:25,520 --> 00:28:30,439
Speaker 2: and you know, his opposition to vaccines and floor right

472
00:28:30,520 --> 00:28:31,960
Speaker 2: in the water, that.

473
00:28:32,040 --> 00:28:34,800
Speaker 5: Is really not part of this case. I mean, this

474
00:28:34,920 --> 00:28:39,280
Speaker 5: case is much more about the downsizing, the radical downsizing

475
00:28:39,600 --> 00:28:43,479
Speaker 5: of this agency and the way that it's preceded, and

476
00:28:43,560 --> 00:28:48,920
Speaker 5: not about rfk's specific idiosyncratic views. And frankly, it's not

477
00:28:49,200 --> 00:28:52,880
Speaker 5: clear to what extent his views are driving this because

478
00:28:53,080 --> 00:28:56,160
Speaker 5: the behavior in many ways parallels what we see that

479
00:28:56,200 --> 00:29:00,000
Speaker 5: same agency DOGE doing in other parts of the federal government.

480
00:29:00,160 --> 00:29:04,720
Speaker 5: So in many ways looked like a broader ideological disruption

481
00:29:05,040 --> 00:29:09,800
Speaker 5: and downsizing of a federal agency rather than like rfk's

482
00:29:09,840 --> 00:29:12,400
Speaker 5: disbelief in particular kinds of health programs.

483
00:29:12,520 --> 00:29:16,200
Speaker 2: So it's following the pattern of other lawsuits that claim

484
00:29:16,360 --> 00:29:22,440
Speaker 2: the executive branch can't incapacitate an agency like AGHS without

485
00:29:22,560 --> 00:29:26,920
Speaker 2: Congress signing off, and that the administration is violating the

486
00:29:26,960 --> 00:29:33,640
Speaker 2: appropriations clause because Congress already authorized funds for the agency's operations.

487
00:29:34,120 --> 00:29:37,640
Speaker 5: Yeah, it really is the greatest test of constitutional powers

488
00:29:37,720 --> 00:29:40,800
Speaker 5: and what the executive can do to essentially shut down

489
00:29:41,280 --> 00:29:44,880
Speaker 5: all these programs that Congress authorized and established. It's a

490
00:29:45,000 --> 00:29:49,120
Speaker 5: fascinating moment in terms of constitutional principles and how far

491
00:29:49,320 --> 00:29:50,440
Speaker 5: executive power can go.

492
00:29:51,160 --> 00:29:56,280
Speaker 2: Last week, the Trump administration released a proposed budget which

493
00:29:56,320 --> 00:30:01,560
Speaker 2: has a twenty six percent cut to the HJS discretionary budget,

494
00:30:01,640 --> 00:30:05,800
Speaker 2: but ask for five hundred million for Kennedy's Make America

495
00:30:05,920 --> 00:30:09,840
Speaker 2: Healthy Again initiative. Let's say the proposed budget is approved

496
00:30:09,840 --> 00:30:13,560
Speaker 2: by Congress, does this suit and lose some of its

497
00:30:13,800 --> 00:30:18,360
Speaker 2: power because Congress has decided to cut the budget for HHS.

498
00:30:18,680 --> 00:30:21,520
Speaker 5: I think this case is much more about the process,

499
00:30:21,640 --> 00:30:24,520
Speaker 5: you know, again, about the administrative process by which things

500
00:30:24,520 --> 00:30:28,760
Speaker 5: have proceeded, than about the actual funding changes. The funding

501
00:30:28,840 --> 00:30:34,280
Speaker 5: changes that are proposed are certainly directionally the same as

502
00:30:34,280 --> 00:30:36,600
Speaker 5: some of these changes, but right now we're in an

503
00:30:36,640 --> 00:30:40,760
Speaker 5: already funded environment where moneies have already been allocated and

504
00:30:40,800 --> 00:30:42,760
Speaker 5: we're not talking about it. So the two things do

505
00:30:42,960 --> 00:30:45,480
Speaker 5: go kind of handing glove. But it's a slightly different

506
00:30:45,480 --> 00:30:48,920
Speaker 5: issue because the money is authorized, Congress has made choices

507
00:30:48,960 --> 00:30:52,080
Speaker 5: by virtue of our previous budgets, and so if the

508
00:30:52,160 --> 00:30:55,840
Speaker 5: twenty twenty six budget you know is enacted, frankly, it

509
00:30:55,880 --> 00:30:59,320
Speaker 5: will be different cuts on the same trajectory, and they'll

510
00:30:59,360 --> 00:31:03,400
Speaker 5: have a additional further impacts. But these are two different things.

511
00:31:03,600 --> 00:31:07,400
Speaker 2: So there's also similar cases that try to block the

512
00:31:07,760 --> 00:31:12,560
Speaker 2: termination of billions of dollars in grants awarded by federal

513
00:31:12,560 --> 00:31:16,560
Speaker 2: health agencies in support of public health research. I keep

514
00:31:16,600 --> 00:31:20,640
Speaker 2: hearing about cuts and funding to research. Is this like

515
00:31:20,880 --> 00:31:25,360
Speaker 2: overblown or is it really a serious threat to research?

516
00:31:25,880 --> 00:31:25,960
Speaker 6: Now?

517
00:31:26,200 --> 00:31:30,400
Speaker 5: This is affecting our medical and public health research institutions

518
00:31:30,720 --> 00:31:33,800
Speaker 5: across the board nationally. I believe in the twenty twenty

519
00:31:33,840 --> 00:31:39,640
Speaker 5: six budget, the proposal is eighteen billion dollars less funding

520
00:31:39,800 --> 00:31:45,160
Speaker 5: for biomedical research being conducted. We're talking a massive scale

521
00:31:45,240 --> 00:31:49,520
Speaker 5: of reduction. Assuming that it's going to be consistent with

522
00:31:49,840 --> 00:31:53,480
Speaker 5: what ourfcase indicated, we can expect the cuts to come

523
00:31:53,520 --> 00:31:59,440
Speaker 5: from new drugs and more specialized health conditions, because our case,

524
00:31:59,640 --> 00:32:02,360
Speaker 5: you know, been promising that there's going to be a

525
00:32:02,400 --> 00:32:07,200
Speaker 5: greater focus on chronic conditions, where there is a theory

526
00:32:07,280 --> 00:32:10,080
Speaker 5: more thing for the buck in terms of the number

527
00:32:10,080 --> 00:32:14,520
Speaker 5: of people's affected, and a focus on more disease prevention

528
00:32:14,640 --> 00:32:17,840
Speaker 5: of things like diabetes. So I do think that this

529
00:32:18,000 --> 00:32:22,080
Speaker 5: is a profound shift for the pharmaceutical industry, for all

530
00:32:22,120 --> 00:32:26,840
Speaker 5: of the universities and all of the academic researchers at

531
00:32:26,920 --> 00:32:30,920
Speaker 5: our health systems around the country, like radical changes in

532
00:32:31,680 --> 00:32:35,600
Speaker 5: labs being shut down, projects being shuttered, and just a massive,

533
00:32:35,640 --> 00:32:36,400
Speaker 5: massive disruption.

534
00:32:36,600 --> 00:32:40,480
Speaker 2: Thinking about the USAID, which was the first agency to

535
00:32:40,520 --> 00:32:45,280
Speaker 2: be dismantled basically by Doge. And in those cases, even

536
00:32:45,320 --> 00:32:50,400
Speaker 2: though the judges said that you can't dismantle an agency completely,

537
00:32:50,920 --> 00:32:54,200
Speaker 2: it was already too late by the time the judges'

538
00:32:54,280 --> 00:32:56,840
Speaker 2: orders came out. I mean, people had been fired already

539
00:32:57,320 --> 00:33:01,600
Speaker 2: and things had already started to integrate somewhat the same

540
00:33:01,600 --> 00:33:04,800
Speaker 2: thing happened here. I mean, he's already done the damage.

541
00:33:04,960 --> 00:33:06,680
Speaker 5: It's a fair question. I mean a lot of the

542
00:33:06,720 --> 00:33:10,560
Speaker 5: researchers are people who have jobs. For example, many people

543
00:33:10,600 --> 00:33:12,840
Speaker 5: who are like they might be researching cancer and also

544
00:33:12,960 --> 00:33:15,920
Speaker 5: treating in a local hospital. So in the case of

545
00:33:16,160 --> 00:33:19,240
Speaker 5: a lot of our research institutions, you have different categories

546
00:33:19,240 --> 00:33:21,560
Speaker 5: of researchers in different places who are going to be

547
00:33:21,560 --> 00:33:25,480
Speaker 5: affected differently. Obviously, people who are literally within the National

548
00:33:25,520 --> 00:33:27,920
Speaker 5: Institute of health, you know, if their positions are going

549
00:33:28,000 --> 00:33:30,520
Speaker 5: to have to look for new jobs. But what I'm

550
00:33:30,560 --> 00:33:34,520
Speaker 5: hearing is a lot of uncertainty for doctors who were

551
00:33:34,840 --> 00:33:38,400
Speaker 5: including research activities, you know, in their priorities. I think

552
00:33:38,440 --> 00:33:42,360
Speaker 5: the cut represents something like one third of the total

553
00:33:42,400 --> 00:33:44,960
Speaker 5: budget of the National Institute of Health, and again it's

554
00:33:44,960 --> 00:33:47,400
Speaker 5: going to be interesting to see where it hits. Single

555
00:33:47,440 --> 00:33:50,040
Speaker 5: biggest category, of course the United States is cancer research.

556
00:33:50,400 --> 00:33:54,920
Speaker 5: We have enormous research dollars going into mental health, infectious disease,

557
00:33:55,200 --> 00:33:56,959
Speaker 5: and it's not clear that any of those areas are

558
00:33:56,960 --> 00:33:59,440
Speaker 5: going to be priorities. You know, we have billions of

559
00:33:59,440 --> 00:34:03,960
Speaker 5: dollars going into HIV AIDS research, various rare diseases, aging,

560
00:34:04,080 --> 00:34:06,160
Speaker 5: It's not clear where any of it's going to go,

561
00:34:06,280 --> 00:34:10,120
Speaker 5: and it can't be good for the advancement of public health.

562
00:34:10,200 --> 00:34:12,319
Speaker 5: And in many ways it does look like the dismantling

563
00:34:12,680 --> 00:34:15,480
Speaker 5: of something that has been sort of a real jewel

564
00:34:15,640 --> 00:34:17,200
Speaker 5: in the American public health system.

565
00:34:17,480 --> 00:34:19,960
Speaker 2: Obviously, they haven't filed a response yet. I mean, what

566
00:34:20,040 --> 00:34:22,239
Speaker 2: might their possible defense be.

567
00:34:22,640 --> 00:34:24,880
Speaker 5: I mean, it's really a question of how far executive

568
00:34:24,960 --> 00:34:28,480
Speaker 5: authority goes. The Department of Health and Human Services is

569
00:34:28,719 --> 00:34:33,560
Speaker 5: part of the executive branch. So in theory, the administration

570
00:34:33,960 --> 00:34:37,799
Speaker 5: has the power. Even though Congress authorizes the funding and

571
00:34:37,880 --> 00:34:41,960
Speaker 5: allocates it, the administration gets to decide how the agency

572
00:34:42,000 --> 00:34:43,640
Speaker 5: is working. And I think what we're going to hear

573
00:34:43,640 --> 00:34:47,400
Speaker 5: from this administration is that this agency was floated, that

574
00:34:47,480 --> 00:34:50,920
Speaker 5: it was too big, too inefficient, that there was no accountability,

575
00:34:51,280 --> 00:34:56,040
Speaker 5: and that they are essentially taking a painful step that

576
00:34:56,560 --> 00:35:00,120
Speaker 5: reduces red tape and kind of forces federal health policy

577
00:35:00,320 --> 00:35:04,680
Speaker 5: to be improved by forcing more action into the states

578
00:35:04,719 --> 00:35:08,600
Speaker 5: and in the communities rather than with the centralized federal mandate.

579
00:35:08,800 --> 00:35:10,520
Speaker 5: So those are the argument they're going to make. They're

580
00:35:10,520 --> 00:35:13,799
Speaker 5: going to argue about weight and about budget deficits. But

581
00:35:13,920 --> 00:35:16,440
Speaker 5: it'll be interesting to see how the court treat this one,

582
00:35:16,480 --> 00:35:18,360
Speaker 5: and it would not surprise me if this ends up

583
00:35:18,400 --> 00:35:19,120
Speaker 5: in the Supreme Court.

584
00:35:19,600 --> 00:35:24,360
Speaker 2: RFK Junior was a very controversial pick for HHS Secretary,

585
00:35:24,880 --> 00:35:28,040
Speaker 2: and during his confirmation hearings, you know, because he's a

586
00:35:28,120 --> 00:35:31,760
Speaker 2: vaccine skeptic. To put it mildly, he made promises about

587
00:35:31,760 --> 00:35:36,320
Speaker 2: not disturbing vaccines, but has he already started to undermine

588
00:35:36,440 --> 00:35:38,520
Speaker 2: vaccines in different ways.

589
00:35:39,000 --> 00:35:42,920
Speaker 5: Absolutely, there's definitely been I would say, a quiet rollback

590
00:35:43,600 --> 00:35:48,960
Speaker 5: on numerous vaccines. And we're already seeing essentially a vaccine

591
00:35:49,040 --> 00:35:52,239
Speaker 5: opportunities foregone, like with the bird flu, based on lack

592
00:35:52,280 --> 00:35:55,080
Speaker 5: of personnel. And I do think it's happening sort of

593
00:35:55,200 --> 00:35:57,680
Speaker 5: in a lot of quiet steps rather than in one

594
00:35:57,880 --> 00:36:00,920
Speaker 5: self swoop. I expect that will continue based on not

595
00:36:00,960 --> 00:36:03,640
Speaker 5: only URK, but the people around him, for whom this

596
00:36:03,719 --> 00:36:06,440
Speaker 5: is really you know, a kind of passionate point. R

597
00:36:06,600 --> 00:36:09,760
Speaker 5: K has a normous power as the head of the agency,

598
00:36:10,160 --> 00:36:12,239
Speaker 5: and what we're seeing is a number of key public

599
00:36:12,239 --> 00:36:16,360
Speaker 5: health positions are going to people who are really passionate

600
00:36:16,400 --> 00:36:19,880
Speaker 5: ideologue for all of the positions that he's about. And

601
00:36:19,920 --> 00:36:22,719
Speaker 5: so we're seeing a number of anti vax people in

602
00:36:22,880 --> 00:36:26,720
Speaker 5: leadership roles, and obviously that doesn't bode well for getting

603
00:36:26,760 --> 00:36:29,160
Speaker 5: us ready for the vaccines we're going to need in

604
00:36:29,200 --> 00:36:29,960
Speaker 5: the coming years.

605
00:36:30,080 --> 00:36:32,680
Speaker 2: And the age's lawsuit paints a frightening picture.

606
00:36:33,120 --> 00:36:37,160
Speaker 5: It's radical, and it feels like the deliberate sabotage of

607
00:36:37,200 --> 00:36:40,840
Speaker 5: our public health infrastructure and an illegal power graph without

608
00:36:40,840 --> 00:36:44,120
Speaker 5: any plan of how this impacts anybody. You know, our

609
00:36:44,160 --> 00:36:48,160
Speaker 5: health research has been without question the strongest in the

610
00:36:48,200 --> 00:36:51,040
Speaker 5: world and it's hard to believe that if we have

611
00:36:51,120 --> 00:36:54,080
Speaker 5: four years of continued cutting that it will bear any

612
00:36:54,080 --> 00:36:55,200
Speaker 5: semblance of what it was.

613
00:36:55,440 --> 00:36:58,680
Speaker 2: Well see if the judge issues an injunction. Thanks so much, Harry.

614
00:36:58,920 --> 00:37:02,399
Speaker 2: That's healthcare Attorney Nelson, and that's it for this edition

615
00:37:02,440 --> 00:37:05,080
Speaker 2: of The Bloomberg Law Show. Remember you can always get

616
00:37:05,080 --> 00:37:08,239
Speaker 2: the latest legal news on our Bloomberg Law podcasts. You

617
00:37:08,280 --> 00:37:12,360
Speaker 2: can find them on Apple Podcasts, Spotify, and at www

618
00:37:12,520 --> 00:37:16,800
Speaker 2: dot Bloomberg dot com slash podcast Slash Law, And remember

619
00:37:16,800 --> 00:37:19,759
Speaker 2: to tune into The Bloomberg Law Show every weeknight at

620
00:37:19,800 --> 00:37:23,279
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621
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