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

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Speaker 2: Hundreds demonstrated in Lower Manhattan again today to protest ICE

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Speaker 2: agents arresting former Columbia graduate student Mahmoud Khalil and activists

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Speaker 2: during last year's pro Palestinian protests on campus. Khalil spoke

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Speaker 2: for protesters after students stormed into an academic building last April.

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Speaker 3: This is a movement, an anti war movement.

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Speaker 2: We have sparked similar Gazza solidarity.

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Speaker 3: Encampments across the nation and even across the globe.

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Speaker 2: Khalil is a legal permanent resident married to a US citizen,

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Speaker 2: and he's challenging his arrest, accusing the government of retaliating

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Speaker 2: against him for his constitutionally protected advocacy on behalf of

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Speaker 2: Palestinian human rights. White House Press Secretary Caroline Levitt told

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Speaker 2: reporters today that Secretary of State Marco Rubio has the

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Speaker 2: authority to detain those who engage in behavior that goes

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Speaker 2: against American interests.

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Speaker 4: Actually, it says right here reasonable grounds to believe that

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Speaker 4: the alien's presence or activities in the United States would

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Speaker 4: have potentially serious adverse foreign policy consequences to the United States,

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Speaker 4: and I think siding with Hamas makes that quite clear.

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Speaker 2: But a federal judge in New York City has blocked

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Speaker 2: any attempt by the Trump administration to deport Khalil while

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Speaker 2: the court considers his challenge. Joining me is immigration law

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Speaker 2: expert Leon Fresco, a partner at Holland and Knight who

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Speaker 2: is head of the Office of Immigration Litigation during the

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Speaker 2: Obama administration. Leon, the facts of his activism are going

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Speaker 2: to be very important. Here tell us a little about him.

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Speaker 3: The student's fame is Matlut Khalil, and he was a

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Speaker 3: Clawba University student last year. He's not a student anymore,

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Speaker 3: but he was an activist for the Palestinian cause in

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Speaker 3: the university. And if you may recall from the previous year,

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Speaker 3: there were a number of demonstrations at Columbia University that

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Speaker 3: actually really were newsworthy, and you had politicians from both

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Speaker 3: sides going and visiting the university and holding press conferences there.

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Speaker 3: And so there was a time where the student was

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Speaker 3: suspended from the university and then was reinstated. And thus

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Speaker 3: there is quite a lot of developing facts in terms

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Speaker 3: of trying to figure out exactly the level of culpability

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Speaker 3: of what this particular student did or didn't do at

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Speaker 3: Columbia University, and so that part is actually quite relevant

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Speaker 3: to a lot of the legal issues about what the

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Speaker 3: government can't and can't do in this person's case.

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Speaker 2: Yeah, so apparently when they went to arrest him, Homeland

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Speaker 2: Security said that they had an administrative warrant and that

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Speaker 2: the State Department had revoked his student visa. But he

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Speaker 2: has a green card, so he's not on a student visa.

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Speaker 3: Correct, So let's go through both aspects of things. Per second. Normally,

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Speaker 3: if someone has a student visa, the State Department can

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Speaker 3: revoke the visa and then what that means is that

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Speaker 3: ICE can then come in and charge the person as

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Speaker 3: being in the United States with a revoked visa and

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Speaker 3: to place them in removal proceedings. But that's not what

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Speaker 3: happened here because this person is a lawful permanent resident.

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Speaker 3: So unlike in the criminal court, where when someone gets indicted,

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Speaker 3: that document the indictment, can be read by the general

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Speaker 3: public and scene in the immigration court, there actually is

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Speaker 3: a document that's very similar to an indictment called a

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Speaker 3: notice to a peer, but that document is confidential under

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Speaker 3: the immigration law. The only way that the public can

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Speaker 3: ever see that notice to a peer would be if

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Speaker 3: this individual Masmouth Khalil or his attorney would actually release

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Speaker 3: it into the general public. And so that hasn't been

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Speaker 3: done yet, and so we're speculating as to what would

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Speaker 3: be the charge because actually has to be a charge

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Speaker 3: in that document the notice to appear to number one

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Speaker 3: detain mister Khalil, that'd be the first point, but then

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Speaker 3: number twos actually remove him from the country. So there

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Speaker 3: are two potential areas that people are targeting here. The

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Speaker 3: first because of what Secretary Rubio said where he said

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Speaker 3: that he was involved and the State Department was involved

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Speaker 3: in revoking the green card, which is this odd language.

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Speaker 3: But there is a ground of deportation. So all the

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Speaker 3: grounds of deportation are laid out in eight USC. Twelve

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Speaker 3: twenty seven, or what's also known as section two thirty

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Speaker 3: seven of the Immigration Nationality Act. And this one says,

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Speaker 3: and I'll just quote it, an alien who's pres or

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Speaker 3: activities in the United States the Secretary of State has

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Speaker 3: reasonable ground to believe would have potentially serious adverse foreign

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Speaker 3: policy consequences for the United States is deportable. So the

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Speaker 3: way this gets triggered would be as follows, the Secretary

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Speaker 3: of State, which is Mark Rubio, he was saying he

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Speaker 3: triggered something would trigger he would issue a proclamation that

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Speaker 3: says that this individual, Muck Moot Khalil, or anybody else,

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Speaker 3: their presence or activities in the United States would have

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Speaker 3: serious adverse foreign policy consequences. That then becomes the ground

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Speaker 3: of deportation. Then this person can be placed into deportation proceedings.

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Speaker 3: Now where this gets complicated is what happens next, because

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Speaker 3: now this person goes to immigration courts, and what happens

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Speaker 3: does an immigration judge actually overrule Secretary Rubio's determination that

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Speaker 3: this individual's presence has potentially serious adverse foreign policy consequences

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Speaker 3: for the United States. This area of case law is

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Speaker 3: very unclear. Also, when this individual then goes to court,

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Speaker 3: they can normally get a review finally in the Court

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Speaker 3: of Appeals, and the question would be would the Court

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Speaker 3: of Appeals make a determination that that's not true? So

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Speaker 3: this is very sort of uncharted territory. This clause was

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Speaker 3: meant in the past for people. Let's say there was

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Speaker 3: some dictator who was in some country making horrible murders

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Speaker 3: and assassinations of people, and then they managed to find

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Speaker 3: their way into the United States, And the question is,

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Speaker 3: don't give refuge to this person because that's going to

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Speaker 3: upset the rest of the world. And so the Secretary

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Speaker 3: of State can say, we're not going to give refuge

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Speaker 3: to this person, We're going to kick them out of

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Speaker 3: the country because this would make the rest of the

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Speaker 3: world very angry at us that we're getting refuge to

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Speaker 3: this person. Here it becomes a more complicated issue of

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Speaker 3: trying to figure out why this particular student's present in

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Speaker 3: the United States actually tends to create adverse foreign policy

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Speaker 3: consequences for the United States. That's a little bit tougher.

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Speaker 3: There's an easier way to get at this issue, and

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Speaker 3: it's unclear if they did and if they didn't do it,

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Speaker 3: why not, which would be to charge this individual under

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Speaker 3: the category of deportation that just says, quote, endorses or

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Speaker 3: espouses terrorist activity, or persuades others to endorse or espouse

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Speaker 3: terrorist activity or support a terrorist organization. And then in

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Speaker 3: that case, if you have any sort of material or

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Speaker 3: chance or quotes or anything else where this person is

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Speaker 3: saying anything positive about AMAS and telling people, you know,

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Speaker 3: we need to support them in what they're doing or whatever.

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Speaker 3: That clause seems to be an easier one, and then

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Speaker 3: you'd have again the same debates in the immigration court

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Speaker 3: whether he actually did this or not. But nevertheless, that

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Speaker 3: seems like it would be more on target than this

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Speaker 3: issue of having the Secretary of State say that these

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Speaker 3: people on campuses are hurting US foreign policy. That seems

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Speaker 3: to be more difficult to fit than just charging them

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Speaker 3: as people who endorse or a spouse terrorist activity.

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Speaker 2: His wife's a US citizen, so that's how he got

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Speaker 2: the green card. She's expecting a child. Green card holders

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Speaker 2: can be deported the same way that illegal immigrants can,

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Speaker 2: or there's a higher standard.

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Speaker 3: So the problem is this in the grounds of deportability,

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Speaker 3: all of these grounds that we're talking about applied to

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Speaker 3: all quote unquote aliens. I know we all dislike this word,

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Speaker 3: but an alien, by definition in the code is someone

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Speaker 3: who is not a US citizen. So literally, any person

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Speaker 3: who's not a US citizen, meaning even a lawful permanent resident,

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Speaker 3: is potentially subject to this ground of deportation. And some

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Speaker 3: grounds of deportation for lawful permanent residents have what are

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Speaker 3: called waivers in them. What happens is you can try

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Speaker 3: to deport someone and you can even win. The charge

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Speaker 3: can be sustained, but then the person can ask for

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Speaker 3: a waiver, which means essentially saying, I'm sorry, can you

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Speaker 3: forgive me for this? I won't do it again, and

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Speaker 3: then the immigration judge would have the ability to grant

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Speaker 3: a waiver. Here there would be no waiver for this.

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Speaker 3: So the defense of this person is either going to

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Speaker 3: have to be that they don't fit within the charge

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Speaker 3: themselves so that the charge cannot be sustained, or perhaps

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Speaker 3: that person is from Syria that deporting them to Syria

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Speaker 3: at this moment might lead them to being tortured or

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Speaker 3: something of a this nature. But other than those two defenses,

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Speaker 3: there's not going to be, unfortunately, a defense for this

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Speaker 3: individual in the immigration court related to their spouse or

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Speaker 3: their child.

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Speaker 2: In that situation, do we know what the charge against

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Speaker 2: him is because apparently the Department of Homeland Security hasn't

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Speaker 2: disclosed the legal basis for his detention.

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Speaker 3: Correct, that's not a nefarious thing that Department of Homeland

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Speaker 3: Security has not disclosed the legal basis for his detention,

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Speaker 3: because the way it works is the document that you

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Speaker 3: are given as a foreign national to be placing you

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Speaker 3: into deportation proceedings. The notice to appear is under the

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Speaker 3: immigration law, a confidential document that's governed by the Privacy Act,

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Speaker 3: which means that the government can't release that document. It's

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Speaker 3: not like an indictment. The only people who can release

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Speaker 3: that document are must Mood Khalil himself or his attorney

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Speaker 3: in this situation. So that's not nefarious in that sense

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Speaker 3: that they're not saying why he is being detained, what

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Speaker 3: he's being charged with, But the language of Secretary Rubio

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Speaker 3: leads people to think that he's being charged under this

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Speaker 3: doctrine that we will deport you if the Secretary of

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Speaker 3: State has a reasonable ground to believe that your presence

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Speaker 3: in the United States or your activities in the United

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Speaker 3: States will potentially have serious adverse foreign policy consequences for

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Speaker 3: the United States. So the idea would be that Secretary

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Speaker 3: of Rubio would have made this determination about this individual.

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Speaker 3: That determination is then the predicate for the placement of

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Speaker 3: the individual in detention, and now that's going to have

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Speaker 3: to be fought out in court in a very rare,

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Speaker 3: if almost nonexistent. Previous precedents about how this actually gets

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Speaker 3: bought out. I mean, if the Secretary of State is

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Speaker 3: saying that you are creating adverse foreign policy consequences for

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Speaker 3: the United States, that's typically the the thing that gets

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Speaker 3: extreme defference in the court. Such that how is it

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Speaker 3: that you know either an immigration judge or even a

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Speaker 3: federal judge is gonna basically say if they're going to

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Speaker 3: overturn such a determination. It seems quite complicated, But again,

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Speaker 3: that would be one way. The other way would be

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Speaker 3: to charge the person under the terrorist activity ground, which

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Speaker 3: is very broad and which one of them just says

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Speaker 3: endorses or aspous as terrorist activity, or persuades others to

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Speaker 3: endorse or as fouse terrorist activity. That one would seem

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Speaker 3: like the better fit. I don't know if that one

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Speaker 3: was charged, if both were charged, you can charge more

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Speaker 3: than one ground of deportation, but that's gonna be what's

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Speaker 3: going to have to be played out. And it would

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Speaker 3: be actually quite helpful if mister Khalil or his attorney

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Speaker 3: would release the notice to appear so that the public

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Speaker 3: can know what the charge was, so that people can

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Speaker 3: actually understand and have a common basis for having a

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Speaker 3: discussion on whether what the government is doing makes sense

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Speaker 3: or not?

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Speaker 2: Coming up next, why did the Department of Homeland Security

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Speaker 2: ship Khalil one thousand miles away? This is Bloomberg. Federal

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Speaker 2: Immigration Enforcement agents arrested and detained Matmuk Khalil, a legal

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Speaker 2: US resident and Palestinian activists who played a prominent role

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Speaker 2: in protests at Columbia last year. The White House Press

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Speaker 2: Secretary said today the administration had moved to deport Khalil

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Speaker 2: under a section of the Immigration and Nationality Act that

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Speaker 2: gives the Secretary of State the power to deport a

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Speaker 2: non citizen if the government has reasonable ground to believe

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Speaker 2: the person's presence could have serious adverse foreign policy consequences

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Speaker 2: for the United States. I've been talking to Leon Fresco

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Speaker 2: of Holland and Knight soly on before the break. You

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Speaker 2: were talking about how unusual, perhaps unprecedented, it is to

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Speaker 2: use this section of the Immigration and Nationality Act to

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Speaker 2: deport someone and how many constitutional questions it raises. One

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Speaker 2: defense I've heard mentioned is that Khalil, you know, he

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Speaker 2: participated in protests in support of the Palestinian people in Gaza,

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Speaker 2: not necessarily in support of Hamas right.

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Speaker 3: This is going to be the fact pattern that's going

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Speaker 3: to need to be fleshed out in the courts, and

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Speaker 3: the courts are going to have to decide. I will

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Speaker 3: say this, There is a case, a very famous case

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Speaker 3: in the nineteen fifties called Hirasiatis versus the United States,

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Speaker 3: which actually has quite a similar fact pattern in that

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Speaker 3: it involved lawful permanent residents with usitis and spouses and

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Speaker 3: US citizen children, and that involved communism and membership in

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Speaker 3: the Communist Party, and the same allegations were being made

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Speaker 3: First Amendment and also, these people are lawful permanent residents

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Speaker 3: and they renounced their membership in the Communists, So what's

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Speaker 3: the problem that they were communists? And that case went

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Speaker 3: all the way to the Supreme Court, and the Supreme

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Speaker 3: Court said, look, if Congress created this ground of deportation

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Speaker 3: of membership in the Communist Party, then that's the ground

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Speaker 3: of deportation. And it doesn't matter the First Amendment. It

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Speaker 3: doesn't matter that you're a lawful permanent resident, it doesn't

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Speaker 3: matter that you have US citizen children. You're subject to

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Speaker 3: that ground of deportation. It was a very close case,

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Speaker 3: but that case remains good law in the United States,

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Speaker 3: and it would be applicable here, meaning that the First

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Speaker 3: Amendment in and of itself isn't going to be a defense. Really,

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Speaker 3: the question is going to be one or the other,

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Speaker 3: which is either if they charged him as a terrorist,

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Speaker 3: did he engage in espousing any terrorist activities? Or if

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Speaker 3: they're charging him as a person whose presence will have

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Speaker 3: potentially serious adverse foreign policy consequences. First of all, is

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Speaker 3: that something an immigration judge is even going to have

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Speaker 3: jurisdiction to review or is that literally going to be

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Speaker 3: deemed as something that's not reviewable? And what will ultimately

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Speaker 3: the federal courts say about that question, because that is

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Speaker 3: going to be quite an interesting question here because obviously

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Speaker 3: it's easier on the terrorist ground to say, well, what

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Speaker 3: did someone say? What did someone do? But this is

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Speaker 3: sort of a second order question, is what the person

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Speaker 3: is doing having potentially serious adverse foreign policy consequences for

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Speaker 3: the United States that has the potential to have such

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Speaker 3: broad applications. These are the kinds of statutes that people

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Speaker 3: know exist, but they don't get used because they're worried

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Speaker 3: about the implications of using these statutes. And so that's

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Speaker 3: going to be the issue moving forward, is where the

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Speaker 3: courts are willing to go with regard to deference on

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Speaker 3: these topics.

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Speaker 2: His lawyers didn't go to immigration court. They went to

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Speaker 2: federal district court.

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Speaker 3: Yes, here's what's interesting about that this individual, the foreign national,

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Speaker 3: was sitting in New York City and they were detained

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Speaker 3: and then they were transferred first to a detention area

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Speaker 3: in the northeast and then transferred to Louisiana. And so

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Speaker 3: this is another of the fascinating issues of the immigration

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Speaker 3: system that the courts really haven't grappled with, and this

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Speaker 3: might be yet another case where they have to grapple

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Speaker 3: with this issue too. Is okay now that you're in Louisiana,

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Speaker 3: What does that mean? You don't have access to the lawyer,

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Speaker 3: and you know, if there is detention space in New York,

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Speaker 3: why are you being sent to Louisiana? What circuit law

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Speaker 3: is being applied to your case? And also were you

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Speaker 3: being sent there? Because here's what's also happened sometimes and

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Speaker 3: I'm not going to say one way or the other,

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Speaker 3: the motives or anything else. I'll just lay this out,

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Speaker 3: which is you can go look on your own at

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Speaker 3: the Immigration court foroya statistics that are put out every month,

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Speaker 3: and they're done by Syracuse University. It's a program called

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Speaker 3: track Trac, and they actually will show a vast disparity

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Speaker 3: in the rulings of judges. And so, let's say you're

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Speaker 3: in the immigration courts in New York or in San Francisco,

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Speaker 3: you have a far far, far greater chance of succeeding

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Speaker 3: in your case than if you're in the immigration courts

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Speaker 3: in Louisiana or in you know, in a detention facility

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Speaker 3: in Georgia or something like that. And so the question is,

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Speaker 3: first of all, is that a tactical thing that the

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Speaker 3: government actually has at its disposal, which is that they

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Speaker 3: could take someone and move them knowing this information. That's

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Speaker 3: number one, And then number two, can they do that

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Speaker 3: and then apply let's say fifth circuit case law now,

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Speaker 3: which is in Louisiana, which is much more stringent in

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Speaker 3: many different immigration cases, as opposed to second circuit case law,

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Speaker 3: which is the case law that would have been applied

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Speaker 3: in New York. And so part of this abeas was

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Speaker 3: to say, bring this person back to New York so

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Speaker 3: that they can actually have this fight in New York

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Speaker 3: where the lawyer is and the case law and the

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Speaker 3: judges and all of that, and that's going to be

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Speaker 3: a very interesting question to see if Judge Furman, which

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Speaker 3: is the judge who has jurisdiction of this in New York,

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Speaker 3: he's issued a one day say of deportation. There wasn't

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Speaker 3: gonna be a deportation anyway, but he issued a one

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Speaker 3: day stay to sort of try to figure out all

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Speaker 3: of this. Well, once he figures out all of this,

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Speaker 3: what he's going to figure out is there is a

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Speaker 3: massive panoply of constitutional issues in this case, almost dozens

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Speaker 3: of them in just this one case, and he's probably

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Speaker 3: gonna say, Wow, what do I do about this? This

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Speaker 3: is quite an interesting broleo that just sets into my course,

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Speaker 3: including whether he even has jurisdiction to do any of

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Speaker 3: this or have to wait until the whole process plays

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Speaker 3: out and then they can get the federal court. So

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Speaker 3: there's a lot of questions here.

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Speaker 2: Kalia's lawyers said ISI's shell game of transferring him to

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Speaker 2: Louisiana is a blatantly improper but familiar tactic designed to

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Speaker 2: frustrate the New York Federal Court's jurisdiction and isolate my

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Speaker 2: mood far from his lawyers, his home, and his local

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Speaker 2: community of support. Which is what you just said. There's

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Speaker 2: a hearing on Wednesday. Can the judge order him to

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Speaker 2: be brought to New York for the hearing?

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Speaker 3: So there's gonna be two arguments that are going to

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Speaker 3: be made.

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Speaker 2: There's always more than one, why.

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Speaker 3: Right, correct? So the Department of Justice is gonna say

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Speaker 3: that none of these decisions can be made by a

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Speaker 3: federal district court judge outside of the context of the

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Speaker 3: removal proceeding, meaning this person has to go through the

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Speaker 3: removal proceedings get a result one way or the other.

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Speaker 3: If they like the results, then good end of stories.

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Speaker 3: If they don't like the results, they can make all

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Speaker 3: of these fifty different claims that they're going to make

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Speaker 3: all to a Court of Appeals in what's called the

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Speaker 3: petition for review of a final order removal query. Would

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Speaker 3: that be in the Fifth Circuit or would that be

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Speaker 3: in the Second Circuit? That's its own complicated question that

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Speaker 3: hasn't been decided by the court. So the lawyers for

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Speaker 3: Mahmoud Khalil are going to say, look, this needs to

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Speaker 3: be decided independently of all of that, because what's happening

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Speaker 3: is this is not part of the normal issues of

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Speaker 3: immigration law, these issues of where someone is being detained,

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Speaker 3: what jurisdiction they're being brought under. All of this, What

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Speaker 3: good is a petition for review if at the end

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Speaker 3: of the day it's in the wrong court in the

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Speaker 3: first place, and all of that. So they're going to

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Speaker 3: try to say this is governed outside of the context

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Speaker 3: of normal removal proceedings, and that's going to be up

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Speaker 3: to Judge Furman to figure out what does he say,

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Speaker 3: should this all be confined within you know, let's say

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Speaker 3: there's fifty constitutional arguments in this case, all of them

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Speaker 3: need to go up to the Fifth Circuit at the

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Speaker 3: end of this and then maybe the Supreme Court, or

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Speaker 3: does he think, Look, the fact that this case might

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Speaker 3: even be in the Fifth Circuit is its own injustice.

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Speaker 3: That doesn't make it part of the removal process. And

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Speaker 3: so I can come in and make these decisions because

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Speaker 3: they're not even part of the removal process. This is

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Speaker 3: actually a challenge to how the government operates its system,

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Speaker 3: which is different than whether this individual gets deported or not.

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Speaker 3: And so there are so many fascinating issues here.

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Speaker 2: But doesn't a habeas corpus petition allow the district judge

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Speaker 2: to you know, bring the body into court or disintegration.

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Speaker 5: A lot different, correct, But there is actually some very

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Speaker 5: bad case laws in twenty twenty two, I believe, or

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Speaker 5: twenty twenty three from the Supreme Court called Thurid Jossium.

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Speaker 3: Versus the Department of Homeland Security, and I know I'm

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Speaker 3: not doing that name a lot of justice, but where

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Speaker 3: Justice Alito, who wrote the decision for the Court, said

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Speaker 3: that habeas is dead for immigration purposes, that habeas was

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Speaker 3: a thing for the first hundred years of immigration law

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Speaker 3: because the Congress hadn't created this whole structure that they've

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Speaker 3: created now, where there's clearly ways and procedures and pathways

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Speaker 3: and so that those are the ones that have to

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Speaker 3: be used and there's not a separate thing called habeas

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Speaker 3: for this. And so the question for Judge Furman is

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Speaker 3: going to be, irrespective of surigossium, is there some exception

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Speaker 3: that can be used for this type of case where

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Speaker 3: there's all these debates about the forum and the government's

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Speaker 3: use of transferring and what's circuit and everything else, so

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Speaker 3: that he can claim jurisdiction over this. And that's going

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Speaker 3: to be a fascinating question.

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Speaker 2: A lot of fascinating questions are coming up in this case,

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Speaker 2: and tomorrow Judge Furman is holding a hearing, so we

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Speaker 2: should find out more. Thanks so much, Leon, that's Leon

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Speaker 2: Fresco of Honda Knight. President Trump has vowed to make

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Speaker 2: additional arrests of pro Palestinian demonstrators. In a briefing today,

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Speaker 2: the White House Press Secretary said federal authorities have been

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Speaker 2: using intelligence to identify other people involved in campus demonstrations

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Speaker 2: critical of Israel that the administration considered to be anti

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Speaker 2: Semitic and pro Hamas. Coming up next on the Bloomberg

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Speaker 2: Law Show, Trump attacks another law firm and it fights

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Speaker 2: back in court. I'm June Grosso and you're listening to Bloomberg.

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Speaker 2: It's the second direct attack by President Donald Trump on

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Speaker 2: a law firm. Trump signed an executive order last Thursday

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Speaker 2: sanctioning one of the biggest law firms in the country,

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Speaker 2: Perkins Couey, directing agencies to strip the firm's lawyers of

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Speaker 2: security credentials, terminate federal contracts with the firm's clients, and

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Speaker 2: bar its lawyers from entering government buildings. The order also

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Speaker 2: directed the Equal Employment Opportunity Commission to investigate possible racial

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Speaker 2: discrimination of leading law firms and accusing Perkins Cooy of

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Speaker 2: adopting race based hiring quotas in twenty nineteen, Why was

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Speaker 2: Perkins Cooy targeted? The firm's lawyers advised Hillary Clinton and

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Speaker 2: retained Washington firm Fusion GPS for the research that resulted

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Speaker 2: in the so called Steele dossier. It didn't take long

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Speaker 2: for Perkins Cooey to fire back, hiring Williams and Connolly,

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Speaker 2: a firm known for its scorched earth approach, to taking

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Speaker 2: on the Justice Department on behalf of clients, and today

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Speaker 2: suing the Trump administration claiming the executive order is unconstitutional

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Speaker 2: and was intended to bully those who advocate for views

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Speaker 2: opposite to the administrations. My guest is David Lopez, a

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Speaker 2: professor at Rutger Law School and the former General Counsel

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Speaker 2: for the EEOC. David, what strikes you about this order

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Speaker 2: targeting Perkins Cooey?

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Speaker 6: I think the first thing that jumps out at anyone

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Speaker 6: reading this is that it just seems like it's as

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Speaker 6: much about political payback as anything, because I think the

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Speaker 6: opening couple of paragraphs discuss, you know, the twenty sixteen

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Speaker 6: election and refer to and this isn't the executive order

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Speaker 6: failed presidential candidate Hillary Clinton and don't discuss DEI at all? Right,

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Speaker 6: And you know, I can't say that I've read every

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Speaker 6: Trump executive order, and certainly can't say I've read every

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Speaker 6: executive order ever written. But I don't think I've ever

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Speaker 6: seen one that was so directed at any individual organization

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Speaker 6: that is seemingly vilified as like a political enemy. And

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Speaker 6: this one is you know, the fact that it's targeting

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Speaker 6: one firm kind of jumps out at you. And then

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Speaker 6: what's kind of odd, you know, I would almost say,

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Speaker 6: even from a literary standpoint, is that then it moves

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Speaker 6: on to DEI. Right, It doesn't start in terms of

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Speaker 6: talking about de I, but then it sort of taps

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00:27:08,480 --> 00:27:13,120
Speaker 6: into the other executive orders addressing you know, the sort

437
00:27:13,119 --> 00:27:17,480
Speaker 6: of opaque idea of DEI and the dangers of DEI

438
00:27:17,800 --> 00:27:20,640
Speaker 6: to society. And so, you know, it seems like it's

439
00:27:20,640 --> 00:27:23,119
Speaker 6: a little bit of a forced connection here. But I

440
00:27:23,160 --> 00:27:26,080
Speaker 6: think it's being used sort of as an opportunity, I think,

441
00:27:26,119 --> 00:27:28,960
Speaker 6: to open up a new front on what I would

442
00:27:29,040 --> 00:27:33,000
Speaker 6: certainly call a war on THEI. At this point, I

443
00:27:33,000 --> 00:27:35,080
Speaker 6: think it has to be viewed, you know, certainly as

444
00:27:35,160 --> 00:27:38,560
Speaker 6: much through a political lens as through any type of

445
00:27:38,600 --> 00:27:39,360
Speaker 6: legal lens.

446
00:27:39,960 --> 00:27:43,000
Speaker 2: There seems to be so many legal arguments against this.

447
00:27:43,160 --> 00:27:44,800
Speaker 2: Shall we start with First Amendment?

448
00:27:45,280 --> 00:27:48,720
Speaker 6: Yeah, I mean, I think obviously it has major First

449
00:27:48,720 --> 00:27:51,440
Speaker 6: Amendment implications, But I think, you know, the really important

450
00:27:51,440 --> 00:27:56,040
Speaker 6: thing for listeners to understand is that a president can't

451
00:27:56,119 --> 00:28:00,720
Speaker 6: change the law through executive fiat, and so everything that

452
00:28:00,920 --> 00:28:03,639
Speaker 6: the president is doing is can implicate you know, pre

453
00:28:03,720 --> 00:28:07,880
Speaker 6: existing statutes and the Constitution of the United States. Right,

454
00:28:08,119 --> 00:28:10,800
Speaker 6: so there may be a signal in the executive order

455
00:28:10,920 --> 00:28:12,960
Speaker 6: that this is what they want to do, and this

456
00:28:13,000 --> 00:28:15,320
Speaker 6: is what they'll try to do, but you know, to

457
00:28:15,359 --> 00:28:18,040
Speaker 6: the extent that it rens afel of the Constitution and

458
00:28:18,119 --> 00:28:20,440
Speaker 6: rensfell of other statutes is going to be pushed back.

459
00:28:21,440 --> 00:28:24,159
Speaker 6: Who has picked up Williamson Connolly, which is known to

460
00:28:24,200 --> 00:28:28,639
Speaker 6: be a really kind of a hardball litigation law firm,

461
00:28:29,080 --> 00:28:31,880
Speaker 6: to represent them in all of this, And I will

462
00:28:31,880 --> 00:28:36,800
Speaker 6: say from my personal experience as General Counsel of the

463
00:28:36,840 --> 00:28:39,840
Speaker 6: EEOC is that every time that we would see a

464
00:28:39,920 --> 00:28:42,520
Speaker 6: law firm, day would fight tooth and nail like this

465
00:28:42,680 --> 00:28:45,880
Speaker 6: is not you know, because I think that basically, you

466
00:28:45,880 --> 00:28:48,560
Speaker 6: know what litigators do is that they try to just

467
00:28:48,680 --> 00:28:52,240
Speaker 6: passionately assess the risks and they don't intimidate, right. And

468
00:28:52,280 --> 00:28:54,880
Speaker 6: I think a lot of businesses in this age, as

469
00:28:54,920 --> 00:28:56,320
Speaker 6: we've seen, are like, well, I don't want to be

470
00:28:56,360 --> 00:28:58,200
Speaker 6: in the crosshairs. I don't want to be on the

471
00:28:58,280 --> 00:29:02,160
Speaker 6: radar screen, and that they're pulling back what are often

472
00:29:02,680 --> 00:29:05,760
Speaker 6: legal and necessary efforts to make sure that merit is

473
00:29:05,760 --> 00:29:07,920
Speaker 6: a true factor in the workplace. But I think when

474
00:29:07,960 --> 00:29:10,800
Speaker 6: you hope the bearer of a law firm, I think

475
00:29:10,840 --> 00:29:13,320
Speaker 6: it just puts you in a different situation, right. And

476
00:29:13,360 --> 00:29:15,680
Speaker 6: I think we've seen with the executive orders time and

477
00:29:15,720 --> 00:29:19,160
Speaker 6: time again is that there's been a lot of pushback,

478
00:29:19,240 --> 00:29:21,160
Speaker 6: and a lot of it's been very successful because I

479
00:29:21,160 --> 00:29:25,960
Speaker 6: think these are as much you know, political or ideologically

480
00:29:26,000 --> 00:29:29,800
Speaker 6: driven documents as they are I think good faith efforts

481
00:29:29,840 --> 00:29:33,640
Speaker 6: to execute the laws, which is what executive orders are

482
00:29:33,680 --> 00:29:36,440
Speaker 6: usually designed to do. I think a lot of them have,

483
00:29:36,880 --> 00:29:41,760
Speaker 6: you know, certainly a propaganda purpose. But I think this

484
00:29:41,800 --> 00:29:45,600
Speaker 6: one in many respects stands out just because it does

485
00:29:46,160 --> 00:29:50,719
Speaker 6: basically declare Perkins Couoi to be like a political enemy,

486
00:29:50,840 --> 00:29:54,240
Speaker 6: and then it goes through a whole host of actions

487
00:29:54,240 --> 00:29:56,760
Speaker 6: that they're going to take against this law firm and

488
00:29:56,800 --> 00:30:00,040
Speaker 6: then suddenly, you know, connects it to the EI. I

489
00:30:00,080 --> 00:30:02,720
Speaker 6: think if this were like an English creative writing course,

490
00:30:03,360 --> 00:30:06,640
Speaker 6: this would probably flunk because I think that I think

491
00:30:06,680 --> 00:30:10,000
Speaker 6: there's a lot of thematic incongruities here. You know, it

492
00:30:10,000 --> 00:30:12,200
Speaker 6: almost reads like one of these like late night tweets

493
00:30:12,320 --> 00:30:14,640
Speaker 6: or late night to social posts that it was like

494
00:30:14,720 --> 00:30:16,800
Speaker 6: kind of written at through in the morning, you know,

495
00:30:16,840 --> 00:30:18,960
Speaker 6: when somebody can sleep. I mean, that's really how it

496
00:30:18,960 --> 00:30:21,360
Speaker 6: reads to me. And so we'll see, I mean, you know,

497
00:30:21,400 --> 00:30:23,280
Speaker 6: we'll see how it plays out. But I think the

498
00:30:23,360 --> 00:30:25,640
Speaker 6: law firms already signaled that, you know, that there's going

499
00:30:25,680 --> 00:30:29,200
Speaker 6: to be a pushback and that any effort you know,

500
00:30:29,240 --> 00:30:33,880
Speaker 6: by the administration to violate First Amendal rights, to violate

501
00:30:34,240 --> 00:30:38,040
Speaker 6: you know, their efforts to zealously represent their clients, their

502
00:30:38,080 --> 00:30:41,240
Speaker 6: efforts to do business is going to be challenged.

503
00:30:41,760 --> 00:30:44,600
Speaker 2: This seems to be part of Trump's just war on

504
00:30:44,800 --> 00:30:48,040
Speaker 2: the legal profession, you know, judges who don't rule for him,

505
00:30:48,320 --> 00:30:52,200
Speaker 2: law firms who represent clients who go against him. And

506
00:30:52,800 --> 00:30:57,200
Speaker 2: is it already having a chilling effect because reportedly some

507
00:30:57,320 --> 00:31:00,520
Speaker 2: law firms turned down representing.

508
00:31:01,240 --> 00:31:04,160
Speaker 6: Yeah and I think, you know, I think that's you know,

509
00:31:04,200 --> 00:31:09,120
Speaker 6: I think that's that's a feature of any of these

510
00:31:09,120 --> 00:31:13,080
Speaker 6: executive orders, which is sort of intimidation and self censorship

511
00:31:13,160 --> 00:31:17,040
Speaker 6: and and uh and self restrain. I don't think that's

512
00:31:17,080 --> 00:31:20,000
Speaker 6: sort of incidental. I think that's part of, you know,

513
00:31:20,040 --> 00:31:22,400
Speaker 6: what's going on here. And it's not just going on

514
00:31:22,560 --> 00:31:26,120
Speaker 6: you know obviously with the legal profession, or with with

515
00:31:26,200 --> 00:31:29,400
Speaker 6: private businesses or with government. You know, it also to

516
00:31:29,440 --> 00:31:33,160
Speaker 6: a large extent, has been directed at the press as well.

517
00:31:33,320 --> 00:31:35,520
Speaker 6: And I think there's hope that you know that the

518
00:31:35,560 --> 00:31:37,680
Speaker 6: press will you know, you see, you see the sort

519
00:31:37,680 --> 00:31:41,200
Speaker 6: of back and forth with the AP on what seems

520
00:31:41,200 --> 00:31:45,360
Speaker 6: to be like a pretty incidental and insignificant point. But

521
00:31:45,760 --> 00:31:47,840
Speaker 6: you know, what you see is like, really, I think

522
00:31:47,880 --> 00:31:52,120
Speaker 6: an effort to try to secure you know, self censorship

523
00:31:52,200 --> 00:31:56,160
Speaker 6: or self restraint and to keep people from basically you know,

524
00:31:56,360 --> 00:31:59,640
Speaker 6: speaking up right at a time when that's probably more

525
00:31:59,680 --> 00:32:01,840
Speaker 6: importan than it has been in a long time.

526
00:32:02,480 --> 00:32:04,720
Speaker 2: A lot of legal experts have said, there are so

527
00:32:04,800 --> 00:32:10,000
Speaker 2: many ways to attack this. It's patently unconstitutional. So tell

528
00:32:10,080 --> 00:32:13,200
Speaker 2: us about an attack on the executive order based on

529
00:32:13,840 --> 00:32:15,160
Speaker 2: due process claims.

530
00:32:15,400 --> 00:32:19,800
Speaker 6: The government can't basically take someone's you know, property interests

531
00:32:19,880 --> 00:32:24,760
Speaker 6: or livelihood unless they provide some sort of due process protections, right,

532
00:32:25,360 --> 00:32:30,120
Speaker 6: and you know that that's usually some adversarial adjudication. You know,

533
00:32:30,160 --> 00:32:33,280
Speaker 6: that allows basically the sharing of evidence, and it allows

534
00:32:33,320 --> 00:32:36,920
Speaker 6: the cross examination of witnesses. You know, due process could

535
00:32:36,920 --> 00:32:39,760
Speaker 6: mean different many different things depending upon the context. But

536
00:32:39,840 --> 00:32:41,960
Speaker 6: what it means is that you just can't let go

537
00:32:42,040 --> 00:32:44,600
Speaker 6: in and say I'm taking over this business and I'm

538
00:32:44,600 --> 00:32:46,880
Speaker 6: going to put you out of business because there's a

539
00:32:46,920 --> 00:32:51,320
Speaker 6: property interest involved. And when the government does that, you know,

540
00:32:51,440 --> 00:32:54,840
Speaker 6: the constitution requires and the course have said this, you know,

541
00:32:54,960 --> 00:33:00,400
Speaker 6: consistently requires some protections for the party that's being acted.

542
00:33:00,600 --> 00:33:02,720
Speaker 6: You know, that's part of what's going on here, right,

543
00:33:02,840 --> 00:33:06,240
Speaker 6: because you know, clearly, I think anybody who reads this

544
00:33:07,160 --> 00:33:09,080
Speaker 6: is going to see it as, oh, this is basically

545
00:33:09,080 --> 00:33:12,440
Speaker 6: an effort to ruin Perkins and Coolie, right, and to

546
00:33:12,480 --> 00:33:14,080
Speaker 6: make sure that people don't go to them and that

547
00:33:14,120 --> 00:33:16,160
Speaker 6: they don't do good business, that they're not able to

548
00:33:16,520 --> 00:33:20,080
Speaker 6: thrive as a law firm in a competitive market. And

549
00:33:20,160 --> 00:33:22,040
Speaker 6: so I think that's the due process concern.

550
00:33:22,280 --> 00:33:22,480
Speaker 2: Right.

551
00:33:22,800 --> 00:33:26,760
Speaker 6: Lawyers can be pretty zealous about their obligation to represent

552
00:33:26,840 --> 00:33:30,640
Speaker 6: zealously their clients, and you know, and obviously you know,

553
00:33:30,720 --> 00:33:33,600
Speaker 6: this is sort of a blowback against the representation of

554
00:33:33,600 --> 00:33:38,160
Speaker 6: the Hillary Clinton campaign. And you know, again it really

555
00:33:38,640 --> 00:33:40,800
Speaker 6: smells of like political payback. I don't think there's any

556
00:33:40,840 --> 00:33:41,600
Speaker 6: other way to read this.

557
00:33:41,960 --> 00:33:44,880
Speaker 2: It was said at the signing that the executive order

558
00:33:45,360 --> 00:33:50,239
Speaker 2: calls for a holistic review of unlawful DEI in some

559
00:33:50,320 --> 00:33:53,680
Speaker 2: of the nation's largest law firms, how would they even

560
00:33:53,760 --> 00:33:54,520
Speaker 2: investigate that?

561
00:33:55,440 --> 00:33:57,440
Speaker 6: There are a couple of things going on here, right,

562
00:33:57,520 --> 00:34:01,280
Speaker 6: And so the President issued other de orders and these

563
00:34:01,400 --> 00:34:05,400
Speaker 6: orders have been enjoined, right, And so there's a discord

564
00:34:05,400 --> 00:34:07,920
Speaker 6: in Maryland that enjoyed one of the orders, you know,

565
00:34:08,360 --> 00:34:12,759
Speaker 6: partly on First Amendment grounds, instead that the orders were

566
00:34:12,840 --> 00:34:18,160
Speaker 6: drafted in an unconstitutionally vague manner, which you know doesn't

567
00:34:18,200 --> 00:34:21,560
Speaker 6: provide you know, sufficient guidance in terms of conduct. And

568
00:34:21,600 --> 00:34:23,080
Speaker 6: I think it was that hearing, or maybe it was

569
00:34:23,120 --> 00:34:26,880
Speaker 6: another one where you know, even the DOJ lawyers and

570
00:34:26,920 --> 00:34:28,680
Speaker 6: I don't want to fall into the traffic, say the

571
00:34:28,680 --> 00:34:32,120
Speaker 6: president's lawyers, but even the DJ lawyers really couldn't define

572
00:34:32,160 --> 00:34:34,759
Speaker 6: what dee I'm meant, right, So I think that there's

573
00:34:34,800 --> 00:34:37,960
Speaker 6: certainly a real effort to keep that opaque. You know,

574
00:34:38,040 --> 00:34:41,000
Speaker 6: that kind of runs through this executive order as well.

575
00:34:42,160 --> 00:34:46,040
Speaker 6: And I think that we've talked before about how, you know,

576
00:34:46,360 --> 00:34:49,960
Speaker 6: it's been unlawful since you know, nineteen sixty four, did

577
00:34:50,000 --> 00:34:54,320
Speaker 6: discriminate against a person based on race or based on gender,

578
00:34:54,400 --> 00:34:56,360
Speaker 6: and that applies to all races and all genders. So

579
00:34:56,920 --> 00:34:59,600
Speaker 6: to the extent that any white person believed that they

580
00:34:59,640 --> 00:35:01,759
Speaker 6: were sub to discrimination, and they've always had the right

581
00:35:02,080 --> 00:35:05,600
Speaker 6: and they have exercised that right to file discrimination claims

582
00:35:05,640 --> 00:35:08,239
Speaker 6: and to prosecute those discrimination claims, and they're entitled to,

583
00:35:08,880 --> 00:35:12,160
Speaker 6: you know, certainly the same due process as any other

584
00:35:12,640 --> 00:35:15,680
Speaker 6: any other litigant or any other complainant. And so, you know,

585
00:35:15,840 --> 00:35:18,719
Speaker 6: so the President didn't change anything there. That's that's just

586
00:35:18,840 --> 00:35:21,160
Speaker 6: sort of been the law of the land for a

587
00:35:21,200 --> 00:35:24,520
Speaker 6: long time. I think the broad concern in terms of

588
00:35:24,560 --> 00:35:26,960
Speaker 6: this sort of assault on DEI or this sort of

589
00:35:27,200 --> 00:35:32,520
Speaker 6: stigmatization of DEI, has really two components. One is that DEI,

590
00:35:33,160 --> 00:35:38,600
Speaker 6: according to you know, many people who are practitioners, and

591
00:35:38,600 --> 00:35:41,480
Speaker 6: that includes many many, you know, people in the legal profession,

592
00:35:42,000 --> 00:35:46,120
Speaker 6: is really just designed to ensure merit, to ensure that

593
00:35:46,239 --> 00:35:50,520
Speaker 6: you have a broad African pool to ensure that as

594
00:35:50,520 --> 00:35:52,560
Speaker 6: a company, you go back and look at your selection

595
00:35:52,680 --> 00:35:56,040
Speaker 6: procedures and make sure that they don't exclude, you know,

596
00:35:56,120 --> 00:36:00,520
Speaker 6: people from any background and that they're related, that they're

597
00:36:00,560 --> 00:36:03,400
Speaker 6: related to the actual job. That you go back and

598
00:36:03,440 --> 00:36:06,360
Speaker 6: you make sure that if there are any gender disparities

599
00:36:06,360 --> 00:36:10,600
Speaker 6: in pay, that those gender disparities are justified for business reasons. Right.

600
00:36:11,000 --> 00:36:12,520
Speaker 6: In other words, that you go back and you make

601
00:36:12,560 --> 00:36:17,600
Speaker 6: sure that your procedures, that your processes from recruitment to selection,

602
00:36:17,800 --> 00:36:22,360
Speaker 6: to promotion to retention, that they are all meritorious features.

603
00:36:22,520 --> 00:36:22,719
Speaker 2: Right.

604
00:36:22,920 --> 00:36:25,480
Speaker 6: And so what's going on here is just sort of

605
00:36:25,480 --> 00:36:30,920
Speaker 6: the most in many ways most remarkable gaslight imaginable because

606
00:36:31,440 --> 00:36:34,800
Speaker 6: one of the DEI executive orders talked about the restoration

607
00:36:34,880 --> 00:36:37,560
Speaker 6: of merit, and it was focused on the federal government,

608
00:36:37,600 --> 00:36:41,320
Speaker 6: which in many ways is the most merit based proceduralized

609
00:36:41,719 --> 00:36:44,960
Speaker 6: part of the economy. Right that the whole idea of

610
00:36:44,960 --> 00:36:48,440
Speaker 6: the civil service is about ensuring merit, and it was

611
00:36:48,480 --> 00:36:53,000
Speaker 6: designed basically as a reaction to hiring people just based

612
00:36:53,040 --> 00:36:55,160
Speaker 6: on political favoritism.

613
00:36:55,320 --> 00:36:55,520
Speaker 2: Right.

614
00:36:56,360 --> 00:36:58,680
Speaker 6: But what happens side by side with this in plain

615
00:36:58,840 --> 00:37:02,640
Speaker 6: sight is that you know, there's been a real focus on, Hey,

616
00:37:02,640 --> 00:37:05,000
Speaker 6: we need to hire people throughout the government who are

617
00:37:05,080 --> 00:37:08,640
Speaker 6: loyal to the president. And you know, loyalty is not

618
00:37:08,719 --> 00:37:11,640
Speaker 6: a merit factor, right, loyalty. I mean, this is exactly

619
00:37:11,680 --> 00:37:15,120
Speaker 6: what the civil service protections were designed to prevent. This

620
00:37:15,160 --> 00:37:19,080
Speaker 6: is exactly what DEI in its best form, is designed

621
00:37:19,080 --> 00:37:21,560
Speaker 6: to prevent. Like the good old you know, old boys

622
00:37:21,600 --> 00:37:23,799
Speaker 6: network and let's just tap people, let's just have our

623
00:37:23,800 --> 00:37:25,680
Speaker 6: friends and just be really clevy and keep out the

624
00:37:25,680 --> 00:37:26,080
Speaker 6: women and.

625
00:37:26,080 --> 00:37:26,960
Speaker 3: Da da dah.

626
00:37:27,080 --> 00:37:29,160
Speaker 6: And so you know, this is all going on at

627
00:37:29,160 --> 00:37:30,920
Speaker 6: the same time, and like you really don't need to

628
00:37:30,960 --> 00:37:35,279
Speaker 6: go beyond looking at the personnel choices that have been

629
00:37:35,320 --> 00:37:39,920
Speaker 6: made at cabinet and subcabinet level positions, which certainly seemed

630
00:37:39,920 --> 00:37:44,439
Speaker 6: to run a foul of traditional criteria from either replacing

631
00:37:44,880 --> 00:37:48,520
Speaker 6: a well decorated African American who is head of the

632
00:37:48,560 --> 00:37:54,160
Speaker 6: Joint Chief of Staff with someone of much more questionable qualifications.

633
00:37:54,200 --> 00:37:57,120
Speaker 6: The only qualifications merit, right, You see this throughout the government,

634
00:37:57,480 --> 00:37:59,160
Speaker 6: And so I think that's one thing that's going on.

635
00:37:59,239 --> 00:38:01,960
Speaker 6: But I think you know, certainly, as a law professor

636
00:38:02,000 --> 00:38:04,920
Speaker 6: that works with younger people and works with younger people

637
00:38:05,400 --> 00:38:08,520
Speaker 6: who look like the United States of America. That is,

638
00:38:08,640 --> 00:38:10,920
Speaker 6: you know, they come from all different backgrounds. You know.

639
00:38:11,000 --> 00:38:13,719
Speaker 6: I think that this sort of weaponization of DEI as

640
00:38:13,760 --> 00:38:16,560
Speaker 6: a slur has also had the impact of not the

641
00:38:16,640 --> 00:38:21,040
Speaker 6: intent of having people question their own qualifications. And so,

642
00:38:21,520 --> 00:38:23,280
Speaker 6: you know, for those of us who work with people

643
00:38:23,280 --> 00:38:26,120
Speaker 6: who are entering the job market, you know, a lot

644
00:38:26,120 --> 00:38:28,200
Speaker 6: of what we do is now pastoral in terms of no,

645
00:38:28,239 --> 00:38:31,399
Speaker 6: you've worked hard, you deserve this. But I think that's

646
00:38:31,440 --> 00:38:33,719
Speaker 6: the fallout when you have a plane accident and the

647
00:38:33,760 --> 00:38:36,080
Speaker 6: president comes out an hour later and say that this

648
00:38:36,239 --> 00:38:38,680
Speaker 6: was a result of DEI and then when asked, well,

649
00:38:38,840 --> 00:38:41,080
Speaker 6: what is your basis for saying that, and he says

650
00:38:41,120 --> 00:38:45,600
Speaker 6: common sense. So this has really really broad impact, right,

651
00:38:45,719 --> 00:38:48,719
Speaker 6: And I think folks need to understand that this is

652
00:38:49,560 --> 00:38:55,239
Speaker 6: really an effort to make sure that employers have you know,

653
00:38:55,600 --> 00:38:59,080
Speaker 6: almost like absolute and better discretion to make personal decisions

654
00:38:59,080 --> 00:39:01,799
Speaker 6: in every way. You know, that means in this context,

655
00:39:02,239 --> 00:39:06,440
Speaker 6: let's not be bothered by these like pesky anti discrimination laws,

656
00:39:06,520 --> 00:39:09,560
Speaker 6: and let's you know, sort of like explicitly say that

657
00:39:10,040 --> 00:39:12,800
Speaker 6: you know that loyalty is going to be a factor

658
00:39:13,080 --> 00:39:17,320
Speaker 6: in our selections. But it also extends the organized labor

659
00:39:17,800 --> 00:39:21,200
Speaker 6: right so you've seen concurrently, you know, the President said,

660
00:39:21,280 --> 00:39:24,600
Speaker 6: I'm not going to recognize the collective bargaining agreement with

661
00:39:25,120 --> 00:39:28,400
Speaker 6: the tsamployees. Everyone knows that's a hard job, right, But

662
00:39:28,760 --> 00:39:31,000
Speaker 6: you know, this is something that almost like hearkens back

663
00:39:31,040 --> 00:39:34,040
Speaker 6: on President Reagan and going to war with Tacco.

664
00:39:34,160 --> 00:39:34,319
Speaker 2: Right.

665
00:39:34,600 --> 00:39:37,839
Speaker 6: It's really intended to send a signal, along with other

666
00:39:37,920 --> 00:39:41,560
Speaker 6: actions such as the dismissal of Gwnn Wilcox, that organized

667
00:39:41,640 --> 00:39:45,000
Speaker 6: labor is not going to be an impediment to the

668
00:39:45,040 --> 00:39:47,400
Speaker 6: ability of employers to basically do as they will in

669
00:39:47,440 --> 00:39:48,200
Speaker 6: the labor market.

670
00:39:48,560 --> 00:39:51,960
Speaker 2: Is his campaign against DEI working in a certain extent,

671
00:39:52,360 --> 00:39:55,759
Speaker 2: understand that you know, some law firms and companies are

672
00:39:55,840 --> 00:39:59,319
Speaker 2: erasing any language like that in their website, So that

673
00:39:59,400 --> 00:40:04,440
Speaker 2: must mean that they're also erasing their efforts in that area.

674
00:40:04,760 --> 00:40:07,000
Speaker 6: Yeah, I mean, I think there's a conversation in the

675
00:40:07,000 --> 00:40:09,400
Speaker 6: field of whether people are going to continue to their

676
00:40:09,520 --> 00:40:12,680
Speaker 6: work under a different name. But I think certainly, you know,

677
00:40:12,719 --> 00:40:16,160
Speaker 6: if you look at companies such as you know, Meta

678
00:40:16,560 --> 00:40:19,080
Speaker 6: or Amazon, you know, it seems to be like a

679
00:40:19,120 --> 00:40:21,839
Speaker 6: wholesale retreat in this area. So I mean, I think

680
00:40:21,840 --> 00:40:25,120
Speaker 6: to the extent that you see that it's something that

681
00:40:25,400 --> 00:40:28,240
Speaker 6: you know, has been working with I think some really

682
00:40:28,520 --> 00:40:31,319
Speaker 6: you know, big name employers. Target is another one. You know,

683
00:40:31,360 --> 00:40:33,080
Speaker 6: I think to a certain extent, it has been working.

684
00:40:33,120 --> 00:40:36,120
Speaker 6: But I think it's important to say, as someone who's

685
00:40:36,160 --> 00:40:39,560
Speaker 6: now an academic, Yeah, certainly there's a lot of good

686
00:40:39,600 --> 00:40:44,800
Speaker 6: faith differences about issues of affirmative action, right, and about

687
00:40:45,120 --> 00:40:48,480
Speaker 6: you know, issues of the importance of voice and diversity

688
00:40:48,960 --> 00:40:53,640
Speaker 6: in the workplace or in an academic institution. And you know,

689
00:40:53,680 --> 00:40:55,799
Speaker 6: the courts have been duk in and out with a

690
00:40:55,800 --> 00:40:58,560
Speaker 6: lot of five four decisions for a long time. But

691
00:40:58,600 --> 00:41:01,640
Speaker 6: I think it's really super important to remember that there's

692
00:41:01,680 --> 00:41:07,920
Speaker 6: also a long history of using anxiety about preferences, particularly

693
00:41:08,040 --> 00:41:13,520
Speaker 6: racial preferences, as sort of a wellspring for political activity.

694
00:41:13,680 --> 00:41:16,800
Speaker 6: So like, even if you go back to the nineteenth century,

695
00:41:16,800 --> 00:41:20,680
Speaker 6: one of the most famous cases Gutting Reconstruction. The justice

696
00:41:20,719 --> 00:41:23,319
Speaker 6: who wrote it, you know, the civil rights cases is

697
00:41:23,360 --> 00:41:26,280
Speaker 6: basically like, you know, there comes a time when African

698
00:41:26,280 --> 00:41:28,480
Speaker 6: Americans need to walk on their own, they need to

699
00:41:28,520 --> 00:41:30,480
Speaker 6: seize be in the special favorite of the state. Right,

700
00:41:30,520 --> 00:41:33,040
Speaker 6: this is like just fifteen years after the end of slavery.

701
00:41:33,560 --> 00:41:36,640
Speaker 6: And then politically we've seen this for a long time.

702
00:41:36,680 --> 00:41:40,759
Speaker 6: I mean, this is part of the famous Nixon Southern strategy, right.

703
00:41:41,560 --> 00:41:43,319
Speaker 6: This is like, you know, I don't know if you

704
00:41:43,360 --> 00:41:47,040
Speaker 6: remember the Jesse Helms ad, you know, where he shows

705
00:41:47,040 --> 00:41:49,440
Speaker 6: some white hands. He's running against Harvey Gantt, the former

706
00:41:49,640 --> 00:41:53,040
Speaker 6: African American mayor of Charlotte, very close selection, and he

707
00:41:53,120 --> 00:41:56,480
Speaker 6: has these white hands. The voiceover is you wanted the job,

708
00:41:56,560 --> 00:41:58,120
Speaker 6: you needed these the job, but you didn't get the

709
00:41:58,160 --> 00:42:00,480
Speaker 6: job because of a racial quota. And then at the

710
00:42:00,480 --> 00:42:03,920
Speaker 6: same time you had a lot of politicization of the

711
00:42:04,000 --> 00:42:07,600
Speaker 6: effort to codify desperate impact. And you know, George Bush

712
00:42:07,640 --> 00:42:09,560
Speaker 6: famously is like, I'm not going to sign a quota act,

713
00:42:09,600 --> 00:42:11,960
Speaker 6: and then you have you know, in the Republican platform,

714
00:42:12,040 --> 00:42:15,520
Speaker 6: like you know, quotas are the most pernicious form of discrimination,

715
00:42:16,160 --> 00:42:18,920
Speaker 6: and so you know, certainly in the race area, this

716
00:42:18,960 --> 00:42:21,279
Speaker 6: is an old playbook. This is not new. You know,

717
00:42:21,360 --> 00:42:23,040
Speaker 6: I think this is more than sort of a good

718
00:42:23,080 --> 00:42:29,279
Speaker 6: faith belief in you know, formal equality. You know, this

719
00:42:29,440 --> 00:42:33,560
Speaker 6: is also basically a dog whistle not so settled dog

720
00:42:33,600 --> 00:42:37,000
Speaker 6: whistle to the base, because you know, this is sort

721
00:42:37,040 --> 00:42:40,919
Speaker 6: of building on a long history of using anxieties over

722
00:42:41,160 --> 00:42:44,720
Speaker 6: racial preferences for African Americans as a way to sort

723
00:42:44,719 --> 00:42:48,080
Speaker 6: of whip up political support. And I just think that's

724
00:42:48,080 --> 00:42:51,840
Speaker 6: sad because I think that operates against the backdrop where

725
00:42:52,440 --> 00:42:55,560
Speaker 6: you know, we have more inequality in the economy than

726
00:42:55,600 --> 00:42:58,040
Speaker 6: we've ever seen, and it operates against you know, the

727
00:42:58,080 --> 00:43:01,799
Speaker 6: backdrop of Elon you know, sort of whipping through the

728
00:43:01,800 --> 00:43:05,480
Speaker 6: federal government and you know, just cutting things like he's

729
00:43:05,520 --> 00:43:08,480
Speaker 6: the ultimately like bad boss, like coming five things that

730
00:43:08,520 --> 00:43:10,920
Speaker 6: you've done. I want to write a column called Glen

731
00:43:10,920 --> 00:43:14,080
Speaker 6: Gary Glenn Musk because he's like worse than Alec Baldwin.

732
00:43:14,160 --> 00:43:16,040
Speaker 6: It's like, you're gonna do it. I don't care. And

733
00:43:16,160 --> 00:43:17,600
Speaker 6: you know we've all had the boss, you know that

734
00:43:17,640 --> 00:43:21,120
Speaker 6: doesn't know anything about what you do but still undervalues it, right,

735
00:43:21,200 --> 00:43:23,440
Speaker 6: or just basically like I'm the smartest person in the

736
00:43:23,520 --> 00:43:26,200
Speaker 6: room and everyone's like you have no clue what I do. Right,

737
00:43:26,239 --> 00:43:28,160
Speaker 6: You're just like looking at boxes and you're just like

738
00:43:28,360 --> 00:43:32,040
Speaker 6: eliminating boxes. And so you know that's going on, and

739
00:43:32,400 --> 00:43:34,960
Speaker 6: you know right now there's a lot of I think

740
00:43:35,000 --> 00:43:37,960
Speaker 6: good faith belief that Medicaid is in peril, and so

741
00:43:38,480 --> 00:43:41,560
Speaker 6: you know, people are talking about you know, DEI it

742
00:43:41,640 --> 00:43:45,560
Speaker 6: becomes almost like a distraction at this point, because that's

743
00:43:45,560 --> 00:43:48,160
Speaker 6: not what is left. Wage is stagnant, and that's not

744
00:43:48,200 --> 00:43:51,600
Speaker 6: what has created all this inequality in our economy. You know,

745
00:43:51,840 --> 00:43:55,080
Speaker 6: it isn't the right They becomes like a distraction there.

746
00:43:55,480 --> 00:43:57,000
Speaker 6: But I think that you know a lot of the

747
00:43:57,040 --> 00:43:59,440
Speaker 6: anxieties are working people feel, and just to say, hey,

748
00:43:59,480 --> 00:44:01,799
Speaker 6: a lot of it is is that become like these

749
00:44:01,800 --> 00:44:06,160
Speaker 6: cultural flashpoints deliberately are often designed to make you not

750
00:44:06,239 --> 00:44:08,359
Speaker 6: look in the other direction at what's going on over

751
00:44:08,400 --> 00:44:10,720
Speaker 6: here's the good old Wizard of Oz.

752
00:44:11,040 --> 00:44:16,759
Speaker 2: Will this be a very slow process to untangle all

753
00:44:16,800 --> 00:44:20,759
Speaker 2: these things that in his executive order against Perkins KOOI.

754
00:44:21,000 --> 00:44:22,719
Speaker 6: Well, I mean, I think what you've seen is that

755
00:44:22,880 --> 00:44:25,360
Speaker 6: just a lot of the executive orders have been enjoyed,

756
00:44:25,440 --> 00:44:27,279
Speaker 6: So it may not be a slow process at all.

757
00:44:27,640 --> 00:44:30,120
Speaker 6: You can call me again when briefs start flying, and

758
00:44:30,160 --> 00:44:32,840
Speaker 6: I imagine that's going to be very soon. You know,

759
00:44:32,840 --> 00:44:36,560
Speaker 6: there's a real effort to kind of move quickly on

760
00:44:36,680 --> 00:44:38,799
Speaker 6: a lot of things in a lot of areas. But

761
00:44:38,840 --> 00:44:41,040
Speaker 6: that becomes like a double ed sword for the administration

762
00:44:41,520 --> 00:44:45,320
Speaker 6: because what happens is that things are often slowly done

763
00:44:45,960 --> 00:44:49,440
Speaker 6: and easily struck down. But I think what also happens.

764
00:44:49,520 --> 00:44:51,560
Speaker 6: And I'm going to just say this as someone who

765
00:44:52,160 --> 00:44:55,040
Speaker 6: is very proud of my service at the Department of

766
00:44:55,160 --> 00:44:57,440
Speaker 6: Justice and be able to being able to stand up

767
00:44:57,440 --> 00:45:00,560
Speaker 6: and say, you know, I represent the United States America.

768
00:45:00,920 --> 00:45:02,680
Speaker 6: You know, when I was there, it was very frustrated

769
00:45:02,719 --> 00:45:07,719
Speaker 6: sometimes because I'm like DFJ so bureaucratic, encumbersome and cautious, right,

770
00:45:08,000 --> 00:45:09,840
Speaker 6: And when I was at the UC, it's like, oh dog,

771
00:45:10,000 --> 00:45:13,600
Speaker 6: so you know, bureaucratic, compass it. But they do that

772
00:45:13,719 --> 00:45:16,759
Speaker 6: to maintain the institutional credibility of the institution. And it's

773
00:45:16,800 --> 00:45:19,960
Speaker 6: really built into the DNA of the lifers who have

774
00:45:20,040 --> 00:45:24,400
Speaker 6: worked at J that hey, we represent the United States.

775
00:45:24,560 --> 00:45:27,080
Speaker 6: You know, We're not like the private, contigular areas of

776
00:45:27,120 --> 00:45:31,719
Speaker 6: the president. We represent the United States, and as administrations change,

777
00:45:31,719 --> 00:45:35,839
Speaker 6: we always have to maintain the credibility of the institution.

778
00:45:36,520 --> 00:45:39,880
Speaker 6: As lawyers with the courts, right, that is so built

779
00:45:39,920 --> 00:45:42,440
Speaker 6: into the DNA of the Department of Justice. And it

780
00:45:42,440 --> 00:45:44,960
Speaker 6: feels like that's unraveled in one month. It's just sort

781
00:45:45,000 --> 00:45:46,560
Speaker 6: of like we're going to go there and we're going

782
00:45:46,600 --> 00:45:48,960
Speaker 6: to say anything, and you know, and then they keep

783
00:45:48,960 --> 00:45:51,640
Speaker 6: getting kind of slapped down by the courts. You know.

784
00:45:51,719 --> 00:45:55,240
Speaker 6: Then you see people who are leaving in mass because

785
00:45:55,640 --> 00:45:58,319
Speaker 6: they understand what's happening and they don't want to be

786
00:45:58,360 --> 00:46:01,920
Speaker 6: part of it. And often the last form of resistance

787
00:46:01,960 --> 00:46:05,000
Speaker 6: that many people have is to sort of walk out

788
00:46:05,000 --> 00:46:08,160
Speaker 6: with the feet. But it really hurts the credibility of

789
00:46:08,160 --> 00:46:10,759
Speaker 6: the Department of Justice. Hopefully they'll be able to kind

790
00:46:10,760 --> 00:46:13,640
Speaker 6: of one day claw that back, but the send lawyers

791
00:46:13,680 --> 00:46:15,960
Speaker 6: in to represent something like this or like some of

792
00:46:15,960 --> 00:46:18,960
Speaker 6: the other executive orders doesn't really help with the skepture

793
00:46:19,000 --> 00:46:20,400
Speaker 6: of the nation's lawyers.

794
00:46:20,640 --> 00:46:23,040
Speaker 2: We're going to have to leave it there. Thanks so much, David.

795
00:46:23,160 --> 00:46:26,759
Speaker 2: That's Professor David Lopez of Rutgers Law School, and that's

796
00:46:26,800 --> 00:46:29,440
Speaker 2: it for this edition of The Bloomberg Law Show. Remember

797
00:46:29,480 --> 00:46:31,560
Speaker 2: you can always get the latest legal news on our

798
00:46:31,560 --> 00:46:35,719
Speaker 2: Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,

799
00:46:35,920 --> 00:46:40,959
Speaker 2: and at www dot Bloomberg dot com, slash podcast Slash Law,

800
00:46:41,360 --> 00:46:43,960
Speaker 2: and remember to tune into The Bloomberg Law Show every

801
00:46:44,000 --> 00:46:47,880
Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso

802
00:46:48,040 --> 00:46:49,640
Speaker 2: and you're listening to Bloomberg