1 00:00:02,759 --> 00:00:07,000 Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio. 2 00:00:08,600 --> 00:00:12,160 Speaker 2: Transgender people have been serving openly in the military for 3 00:00:12,200 --> 00:00:15,720 Speaker 2: nearly a decade, but this week the Supreme Court said 4 00:00:15,760 --> 00:00:20,560 Speaker 2: that President Trump could begin executing his ban on transgender 5 00:00:20,600 --> 00:00:24,919 Speaker 2: military service. The conservatives on the court, over the descents 6 00:00:24,960 --> 00:00:28,640 Speaker 2: of the three liberal justices, have paused a federal judges 7 00:00:28,840 --> 00:00:32,760 Speaker 2: order blocking the ban, allowing the Trump administration to start 8 00:00:32,760 --> 00:00:39,360 Speaker 2: discharging thousands of transgender service members, including experienced, decorated officers 9 00:00:39,600 --> 00:00:44,360 Speaker 2: who've served openly for years. Defense Secretary Pete Hegseth said 10 00:00:44,520 --> 00:00:48,239 Speaker 2: the military is leaving wokeness and weakness behind. 11 00:00:48,920 --> 00:00:54,840 Speaker 3: No more pronouns, no more climate change obsession, no more 12 00:00:56,360 --> 00:01:02,280 Speaker 3: emergency vaccine mandates, no more dudes in dresses. We're done 13 00:01:02,320 --> 00:01:02,520 Speaker 3: with that. 14 00:01:02,960 --> 00:01:05,840 Speaker 2: The lead plaintiff in the case is Emily Shilling, a 15 00:01:05,959 --> 00:01:09,240 Speaker 2: Navy commander in combat pilot with nearly twenty years of 16 00:01:09,319 --> 00:01:13,399 Speaker 2: service who's flown more than sixty combat missions in both 17 00:01:13,440 --> 00:01:17,720 Speaker 2: the Afghanistan and Iraq wars. My guest is constitutional law 18 00:01:17,800 --> 00:01:22,120 Speaker 2: expert David super, a professor at Georgetown Law. This is 19 00:01:22,160 --> 00:01:25,520 Speaker 2: a one paragraph order, so we have no idea what 20 00:01:25,600 --> 00:01:28,920 Speaker 2: their reasoning was. We just know that the three liberal 21 00:01:29,120 --> 00:01:32,319 Speaker 2: justices dissented. What's your take on this decision. 22 00:01:33,000 --> 00:01:39,920 Speaker 4: I think it's disappointing because the plaintiffs made a compelling case. 23 00:01:40,480 --> 00:01:46,520 Speaker 4: This looks like a classic equal protection claim. The executive order, 24 00:01:46,600 --> 00:01:51,360 Speaker 4: as plainiffs say, is dripping with consent or transgender people. 25 00:01:51,640 --> 00:01:55,440 Speaker 4: So this is big a treat not military preparedness, and 26 00:01:55,800 --> 00:01:59,040 Speaker 4: I would have hoped the Court would have treated it accordingly. 27 00:01:59,360 --> 00:02:03,160 Speaker 4: But that doesn't mean that they've resolved on the merits. 28 00:02:03,360 --> 00:02:07,120 Speaker 2: A federal judge in Washington State had blocked the ban. 29 00:02:08,040 --> 00:02:12,519 Speaker 2: Actually two federal judges have blocked it. Judge Benjamin Settle said, 30 00:02:13,040 --> 00:02:16,840 Speaker 2: it's not an especially close question. Will you tell us 31 00:02:16,919 --> 00:02:21,160 Speaker 2: about the claims of the transgender troops in this case? 32 00:02:21,600 --> 00:02:23,960 Speaker 4: There, I think most central claim is that they're being 33 00:02:23,960 --> 00:02:27,680 Speaker 4: denied equal protection of the law. The Supreme Court is 34 00:02:27,720 --> 00:02:32,359 Speaker 4: long held that the Fifth Amendment's requirement of due process 35 00:02:32,440 --> 00:02:36,680 Speaker 4: implicates equal protection of the law, and that the federal 36 00:02:36,720 --> 00:02:40,640 Speaker 4: government may not deny people equal protection, particularly if it 37 00:02:40,720 --> 00:02:45,799 Speaker 4: is discriminating on the basis of a historically sensitive category. 38 00:02:46,200 --> 00:02:50,360 Speaker 4: The soldiers are alleging that they're being discriminated against both 39 00:02:50,440 --> 00:02:54,480 Speaker 4: because of sex and because of their transgender status, and 40 00:02:54,880 --> 00:02:59,240 Speaker 4: that the government has nowhere near enough adequate justification for doing. 41 00:02:59,280 --> 00:03:02,920 Speaker 2: This is a one paragraph order, so we have no 42 00:03:03,040 --> 00:03:06,080 Speaker 2: idea what their reasoning was. We just know that the 43 00:03:06,120 --> 00:03:09,600 Speaker 2: three liberal justices dissented. But in a case like this, 44 00:03:09,800 --> 00:03:13,760 Speaker 2: shouldn't they have allowed the status quo to remain in place. 45 00:03:14,280 --> 00:03:16,440 Speaker 2: Now the Trump administration is going to be able to 46 00:03:16,520 --> 00:03:18,520 Speaker 2: discharge thousands of troops. 47 00:03:19,360 --> 00:03:24,639 Speaker 4: That certainly would be the usual practice and the practice 48 00:03:24,720 --> 00:03:28,640 Speaker 4: the Court has insisted on in many cases involving the 49 00:03:28,639 --> 00:03:33,040 Speaker 4: Biden administration, where they prohibited the change from taking place 50 00:03:33,200 --> 00:03:37,760 Speaker 4: until it was properly litigated. This opinion from the District 51 00:03:37,800 --> 00:03:42,760 Speaker 4: Court in Washington is quite long, quite detailed, quite careful. 52 00:03:43,200 --> 00:03:45,200 Speaker 4: You can agree with it or not. That it is 53 00:03:45,280 --> 00:03:51,960 Speaker 4: certainly not a casual opinion, and one would expect that 54 00:03:52,760 --> 00:03:57,000 Speaker 4: it would stand and preserve the status quo unless there 55 00:03:57,080 --> 00:04:00,960 Speaker 4: was a compelling reason otherwise. It's disappointing that the Supreme 56 00:04:01,000 --> 00:04:04,880 Speaker 4: Court was unable or unwilling to state any compelling reason 57 00:04:04,960 --> 00:04:06,480 Speaker 4: for this change of the status quo. 58 00:04:06,840 --> 00:04:10,160 Speaker 2: At the Supreme Court, what the Trump administration argue was 59 00:04:10,200 --> 00:04:15,320 Speaker 2: that judges are required to show substantial deference to the 60 00:04:15,360 --> 00:04:20,080 Speaker 2: Defense Department's judgment on military issues, even though the lower 61 00:04:20,120 --> 00:04:25,160 Speaker 2: courts didn't find any backup for the Trump administration's claims 62 00:04:25,200 --> 00:04:29,760 Speaker 2: that the presence of transgender people in the armed services 63 00:04:29,880 --> 00:04:34,680 Speaker 2: undermines military effectiveness. Do you think that deference is the 64 00:04:34,720 --> 00:04:39,440 Speaker 2: main reason why the Supreme Court decided to lift the injunction? 65 00:04:40,240 --> 00:04:43,839 Speaker 4: Only suspect it is. The President has been asking for 66 00:04:43,960 --> 00:04:49,360 Speaker 4: deference on many military and foreign affairs matters. The Court 67 00:04:49,600 --> 00:04:54,400 Speaker 4: denied him that deference on his efforts to use the 68 00:04:54,480 --> 00:04:59,839 Speaker 4: Alien Enemies Act. And my guess is the the Court 69 00:05:00,040 --> 00:05:02,839 Speaker 4: trying to balance the scales in that regard. 70 00:05:03,480 --> 00:05:07,040 Speaker 2: And as far as whether irreparable injury will be suffered, 71 00:05:07,480 --> 00:05:11,880 Speaker 2: the order requires the transgender troops to voluntarily separate from 72 00:05:11,920 --> 00:05:16,440 Speaker 2: the military or face quote involuntary separation, which is a 73 00:05:16,480 --> 00:05:20,080 Speaker 2: stain on their records that could deny them veterans' benefits, 74 00:05:20,200 --> 00:05:23,320 Speaker 2: So that scenario seems like irreparable injury. 75 00:05:24,320 --> 00:05:30,480 Speaker 4: In principle, the administration could be ordered to restore their 76 00:05:30,520 --> 00:05:34,640 Speaker 4: prior status if it ultimately loses this litigation. But the 77 00:05:34,680 --> 00:05:40,679 Speaker 4: whole point of irreparable injury is that litigants are forced 78 00:05:40,720 --> 00:05:46,760 Speaker 4: to suffer circumstances that can't be fully corrected, and in 79 00:05:46,800 --> 00:05:52,120 Speaker 4: the best case scenario, having one's military service interrupted, having 80 00:05:52,160 --> 00:05:57,680 Speaker 4: to gamble ones the a benefits away. All of that 81 00:05:58,360 --> 00:05:59,960 Speaker 4: is classic irrepriabend. 82 00:06:00,560 --> 00:06:04,280 Speaker 2: In Chump's first term, the Supreme Court allowed an earlier 83 00:06:04,440 --> 00:06:08,520 Speaker 2: transgender military band to take effect, but that first ban 84 00:06:09,360 --> 00:06:12,680 Speaker 2: exempted current troops, so it was more like a ban 85 00:06:12,760 --> 00:06:16,480 Speaker 2: on enlistment. This goes further because it's going to allow 86 00:06:16,600 --> 00:06:21,680 Speaker 2: them to discharge people who are currently serving. I mean, 87 00:06:21,720 --> 00:06:25,800 Speaker 2: the lead plaintiff is a decorated Navy pilot with over 88 00:06:25,880 --> 00:06:28,160 Speaker 2: sixty combat missions. 89 00:06:28,320 --> 00:06:31,440 Speaker 4: Yes, this is very different than what we saw before, 90 00:06:31,839 --> 00:06:35,240 Speaker 4: and that's I think the core of what the lower 91 00:06:35,320 --> 00:06:38,760 Speaker 4: court found is that there simply was no evidence to 92 00:06:38,839 --> 00:06:43,520 Speaker 4: support this. If the government had an important reason for 93 00:06:43,640 --> 00:06:48,400 Speaker 4: an action, then deference would owe, and the lower court 94 00:06:48,880 --> 00:06:54,600 Speaker 4: firmly upheld that. But it found that this was not 95 00:06:54,800 --> 00:06:59,400 Speaker 4: a military judgment but a political judgment by the president 96 00:06:59,640 --> 00:07:03,640 Speaker 4: that the Secretary of Defense carried out without gathering any 97 00:07:03,680 --> 00:07:08,640 Speaker 4: evidence that these people are not able to serve their 98 00:07:08,640 --> 00:07:12,560 Speaker 4: country effectively. And what's striking about the plaintiffs in this 99 00:07:12,720 --> 00:07:15,480 Speaker 4: case is that we know a lot about them. They've 100 00:07:15,480 --> 00:07:20,680 Speaker 4: been serving, they've been performing, and if they weren't, they 101 00:07:20,720 --> 00:07:24,120 Speaker 4: could certainly be thrown out on an individual basis. But 102 00:07:24,280 --> 00:07:26,800 Speaker 4: throwing them out on the basis of prejudice when we 103 00:07:26,840 --> 00:07:30,680 Speaker 4: have ample evidence that they're effective soldiers and service people 104 00:07:31,240 --> 00:07:33,200 Speaker 4: is disturbing and it's ignorant. 105 00:07:33,640 --> 00:07:36,360 Speaker 2: I'm surprised that one of the three liberals didn't write 106 00:07:36,360 --> 00:07:36,840 Speaker 2: a descent. 107 00:07:37,360 --> 00:07:39,040 Speaker 5: Are you not? 108 00:07:39,120 --> 00:07:43,480 Speaker 4: Necessarily if the liberals write a descent, then either the 109 00:07:44,120 --> 00:07:49,720 Speaker 4: majority or some justice in the majority write an opinion 110 00:07:49,800 --> 00:07:54,040 Speaker 4: defending what was done, and that would tend to lock 111 00:07:54,160 --> 00:08:00,120 Speaker 4: in positions. This is such a disturbing and difficult to 112 00:08:00,360 --> 00:08:05,600 Speaker 4: justify action that I think the liberals may have decided 113 00:08:05,760 --> 00:08:08,160 Speaker 4: that it's best that no one put pen to paper 114 00:08:08,240 --> 00:08:11,400 Speaker 4: any more than necessary right now, and hope that this 115 00:08:11,480 --> 00:08:15,120 Speaker 4: can be reversed when it's heard on the errants tell me. 116 00:08:15,120 --> 00:08:18,280 Speaker 2: What happens now. So this was about the order from 117 00:08:18,440 --> 00:08:22,640 Speaker 2: the judge in Washington State. A judge in Washington, DC 118 00:08:22,840 --> 00:08:28,480 Speaker 2: has also blocked the policy nationwide, and the Court of 119 00:08:28,520 --> 00:08:32,120 Speaker 2: Appeals for the DC Circuit put that on hold temporarily 120 00:08:32,200 --> 00:08:35,080 Speaker 2: while it heard oral arguments. I mean, how does that 121 00:08:35,160 --> 00:08:38,200 Speaker 2: case work out when you have the Supreme Court lifting 122 00:08:38,240 --> 00:08:41,000 Speaker 2: the injunction of the Washington State Judge. 123 00:08:41,160 --> 00:08:46,480 Speaker 4: That's precisely why the absence of opinions is so significant 124 00:08:46,559 --> 00:08:50,040 Speaker 4: and so telling here. They're going to be oral arguments 125 00:08:50,400 --> 00:08:54,200 Speaker 4: in the Ninth Circuit and the DC Circuit. Panels in 126 00:08:54,280 --> 00:08:58,480 Speaker 4: each of those courts will write opinions about this, and 127 00:08:58,880 --> 00:09:01,480 Speaker 4: it will almost certainly come back to the Supreme Court 128 00:09:01,559 --> 00:09:05,400 Speaker 4: on the merits. So it's really wide open. There are 129 00:09:05,400 --> 00:09:10,480 Speaker 4: many grounds for denying a stay or granting a stay, 130 00:09:11,040 --> 00:09:14,160 Speaker 4: and precisely because the Court didn't write an opinion, we 131 00:09:14,240 --> 00:09:16,640 Speaker 4: don't know which of those it is. It could be 132 00:09:16,679 --> 00:09:23,640 Speaker 4: something as technical as concerns about the standing of plainiffs 133 00:09:23,760 --> 00:09:28,040 Speaker 4: or concerned about whether they made a proper demonstration of 134 00:09:28,120 --> 00:09:33,080 Speaker 4: irreparable injury. So there's nothing about this action that prejudges 135 00:09:33,120 --> 00:09:38,560 Speaker 4: the merits. They have lifted injunctions in other cases saying 136 00:09:39,080 --> 00:09:42,160 Speaker 4: we don't think the plaintiffs are likely to prevail on 137 00:09:42,200 --> 00:09:43,839 Speaker 4: the merits. They didn't say that here. 138 00:09:44,200 --> 00:09:45,840 Speaker 2: So if this could come back to the Court and 139 00:09:45,880 --> 00:09:48,920 Speaker 2: the justices could have a different opinion. 140 00:09:49,000 --> 00:09:50,960 Speaker 4: Well it would come back to the Court in a 141 00:09:51,000 --> 00:09:56,960 Speaker 4: different form, and they could very well be inclined on 142 00:09:57,160 --> 00:09:59,880 Speaker 4: the merit to find for the plaintiffs, even if they 143 00:10:00,080 --> 00:10:03,880 Speaker 4: didn't think an injunction pending litigation was appropriate. 144 00:10:04,480 --> 00:10:08,439 Speaker 2: As you know, the Supreme Court heard a major transgender 145 00:10:08,520 --> 00:10:13,720 Speaker 2: rights case in December over Tennessee's ban on gender affirming 146 00:10:13,760 --> 00:10:17,280 Speaker 2: medical care for transgender miners. It did seem like the 147 00:10:17,520 --> 00:10:21,000 Speaker 2: justices we're going to uphold that ban. I mean, together 148 00:10:21,080 --> 00:10:26,760 Speaker 2: with this, does it show hostility towards transgender rights? 149 00:10:27,000 --> 00:10:31,520 Speaker 4: These are different cases. The Supreme Court in Bosstok a 150 00:10:31,559 --> 00:10:37,520 Speaker 4: few years ago held that the prohibition on discrimination on 151 00:10:37,559 --> 00:10:40,360 Speaker 4: the base of sexts in Title seven of the Civil 152 00:10:40,440 --> 00:10:46,800 Speaker 4: Rights Act is applicable to gay, lesbian, and transgender people. 153 00:10:47,520 --> 00:10:52,400 Speaker 4: So it has done much of the analytical heavy lifting 154 00:10:53,040 --> 00:10:59,240 Speaker 4: required to understand the rights of trans people. The Tennessee case, 155 00:10:59,280 --> 00:11:03,320 Speaker 4: we obviously don't know how it'll be resolved, but that's 156 00:11:03,480 --> 00:11:10,920 Speaker 4: a much narrower set of restrictions and justified in ways 157 00:11:11,040 --> 00:11:14,520 Speaker 4: that are particular to those I hope the Court strikes 158 00:11:14,559 --> 00:11:19,040 Speaker 4: down the Tennessee law, but if it doesn't, I don't 159 00:11:19,080 --> 00:11:23,280 Speaker 4: think that tells you a great deal about how any 160 00:11:23,600 --> 00:11:25,800 Speaker 4: non medical cases would be decided. 161 00:11:26,480 --> 00:11:30,440 Speaker 2: I also want to ask you about a controversial comment 162 00:11:30,600 --> 00:11:36,200 Speaker 2: by President Trump on Meet the Press on Sunday, don't 163 00:11:36,200 --> 00:11:38,720 Speaker 2: you need to uphold the Constitution of the United States's press. 164 00:11:38,920 --> 00:11:39,600 Speaker 2: I don't know. 165 00:11:40,360 --> 00:11:44,080 Speaker 4: I have to respond by saying again, I have brilliant 166 00:11:44,160 --> 00:11:47,560 Speaker 4: lawyers that work for me, and they are going to 167 00:11:47,880 --> 00:11:50,120 Speaker 4: obviously follow what the Supreme Court said. 168 00:11:50,880 --> 00:11:53,120 Speaker 2: I mean, in the past he has talked about his 169 00:11:53,280 --> 00:11:55,480 Speaker 2: Article two powers under the Constitution. 170 00:11:56,240 --> 00:11:59,280 Speaker 4: Well, the Constitution has many things in it. It has 171 00:11:59,440 --> 00:12:02,480 Speaker 4: articles which I'm sure he feels the need to uphold. 172 00:12:02,880 --> 00:12:06,160 Speaker 4: Then those pesky Article one and Article three and Bill 173 00:12:06,200 --> 00:12:09,679 Speaker 4: of Rights. Perhaps he's less enthusiastic about those. I think 174 00:12:09,760 --> 00:12:12,120 Speaker 4: that the people that need to hear his remarks on 175 00:12:12,200 --> 00:12:17,120 Speaker 4: Sunday are the Supreme Court, and the Supreme Court has, 176 00:12:17,160 --> 00:12:22,600 Speaker 4: in a variety of ways all spring been kicking the 177 00:12:22,679 --> 00:12:26,320 Speaker 4: can down the road and hoping the administration will come 178 00:12:26,360 --> 00:12:31,120 Speaker 4: around to acting lawfully. Arguably, the action we were discussing 179 00:12:31,400 --> 00:12:35,880 Speaker 4: concerning the transgender ban in the military is another example 180 00:12:35,960 --> 00:12:38,920 Speaker 4: of the court kicking things down the road. But a 181 00:12:39,000 --> 00:12:45,960 Speaker 4: president who has harshly criticized judges, called some judges that 182 00:12:46,040 --> 00:12:52,400 Speaker 4: he appointed communists, and has expressed great indifference about whether 183 00:12:52,920 --> 00:12:56,640 Speaker 4: to comply with Supreme Court decrees, and it's not complied 184 00:12:56,679 --> 00:13:00,720 Speaker 4: with several Supreme Court at lower court decrees is not 185 00:13:01,240 --> 00:13:06,520 Speaker 4: going to voluntarily change his too, and the Supreme Court 186 00:13:06,679 --> 00:13:08,920 Speaker 4: is going to have to decide whether they are going 187 00:13:09,000 --> 00:13:11,080 Speaker 4: to insist upon compliance with the law. 188 00:13:11,440 --> 00:13:14,840 Speaker 2: They'll certainly have opportunities to do that considering all the 189 00:13:14,880 --> 00:13:19,720 Speaker 2: emergency petitions from the Trump administration. Thanks so much, David. 190 00:13:20,160 --> 00:13:24,200 Speaker 2: That's Professor David super of Georgetown Law. Coming up next. 191 00:13:24,559 --> 00:13:29,880 Speaker 2: Los Angeles federal prosecutors resign after the US Attorney gives 192 00:13:29,920 --> 00:13:34,440 Speaker 2: a plea deal to a convicted felon. This is Bloomberg to. 193 00:13:34,600 --> 00:13:39,880 Speaker 4: The defendant, Please rise and face the jury. What is 194 00:13:39,920 --> 00:13:42,720 Speaker 4: your verdict? We find it? 195 00:13:42,800 --> 00:13:44,400 Speaker 5: Defendent guilty is charged. 196 00:13:45,480 --> 00:13:49,040 Speaker 2: The next step after a jury finds a defendant guilty 197 00:13:49,720 --> 00:13:54,520 Speaker 2: is sentencing by the judge. But in a completely unorthodox move, 198 00:13:54,800 --> 00:13:58,280 Speaker 2: the new US Attorney in Los Angeles is stepping in 199 00:13:58,640 --> 00:14:02,440 Speaker 2: trying to stop the set of a convicted felon and 200 00:14:02,559 --> 00:14:06,720 Speaker 2: moving to strike the jury's verdict. After a three day trial, 201 00:14:06,880 --> 00:14:11,480 Speaker 2: a jury convicted former La County Sheriff's deputy Trevor Kirk 202 00:14:11,960 --> 00:14:15,840 Speaker 2: of a felony for using excessive force when he assaulted 203 00:14:15,840 --> 00:14:19,640 Speaker 2: a black woman outside a supermarket two years ago, throwing 204 00:14:19,680 --> 00:14:22,680 Speaker 2: her to the ground, holding her down, and pepper spraying 205 00:14:22,680 --> 00:14:26,840 Speaker 2: her while responding to a reported robbery. He's facing a 206 00:14:26,880 --> 00:14:30,600 Speaker 2: ten year prison sentence for that conviction, but now, in 207 00:14:30,640 --> 00:14:35,840 Speaker 2: an extraordinary move, US Attorney Bill Esseli is giving Kirk 208 00:14:36,000 --> 00:14:39,560 Speaker 2: a plea deal and asking the trial judge to throw 209 00:14:39,640 --> 00:14:43,119 Speaker 2: out the jury's verdict. Joining me is former federal prosecutor 210 00:14:43,200 --> 00:14:47,120 Speaker 2: Jimmy Garoule, a professor at Notre Dame Law School. So, Jimmy, 211 00:14:47,160 --> 00:14:51,640 Speaker 2: this former sheriff's deputy, is supposed to be sentenced this month, 212 00:14:51,920 --> 00:14:55,680 Speaker 2: facing ten years for the felony conviction, and then suddenly 213 00:14:55,720 --> 00:14:58,760 Speaker 2: the new US attorney comes in and gives him a 214 00:14:58,840 --> 00:15:02,760 Speaker 2: deal to please guilty to a misdemeanor, with the government 215 00:15:02,880 --> 00:15:06,840 Speaker 2: recommending a year's probation and asking the judge to strike 216 00:15:06,960 --> 00:15:10,000 Speaker 2: the jury's finding that he injured his victim, which made 217 00:15:10,000 --> 00:15:10,600 Speaker 2: it a felony. 218 00:15:10,680 --> 00:15:14,120 Speaker 1: Well, it's an extraordinary action and it doesn't appear to 219 00:15:14,160 --> 00:15:16,840 Speaker 1: be justified based on the facts or the law. And 220 00:15:16,920 --> 00:15:19,200 Speaker 1: when I say that, what I mean is that if 221 00:15:19,440 --> 00:15:23,040 Speaker 1: the claim was that he had not received a fair trial, 222 00:15:23,320 --> 00:15:26,320 Speaker 1: well that's the purpose of a direct appeal. The defendant 223 00:15:26,320 --> 00:15:29,800 Speaker 1: would appeal the conviction and highlight the heirs or alleged 224 00:15:29,840 --> 00:15:32,480 Speaker 1: airs that were conducted during the jury trial. But there 225 00:15:32,720 --> 00:15:35,600 Speaker 1: doesn't appear to be any allegation by the state or 226 00:15:35,640 --> 00:15:38,080 Speaker 1: the defendant that his trial was not fair, did not 227 00:15:38,200 --> 00:15:41,960 Speaker 1: comport with due process of law. Alternatively, if the claim is, oh, 228 00:15:42,000 --> 00:15:45,040 Speaker 1: we have newly discovered evidence that proves his innocence, well 229 00:15:45,040 --> 00:15:48,000 Speaker 1: there's a whole set of post conviction procedures that deal 230 00:15:48,040 --> 00:15:51,040 Speaker 1: with that process to petition the court through a petition 231 00:15:51,080 --> 00:15:53,920 Speaker 1: for post conviction relief to vacate the conviction. And there's 232 00:15:53,960 --> 00:15:57,280 Speaker 1: no claims or allegations made to that effect that, oh, 233 00:15:57,360 --> 00:15:59,800 Speaker 1: you know, he's actually innocent and we just learned after 234 00:15:59,840 --> 00:16:02,720 Speaker 1: the conviction of this new evidence that proves his innocence. 235 00:16:02,920 --> 00:16:05,880 Speaker 1: And so then the question is, well, what is a justification. 236 00:16:06,200 --> 00:16:10,040 Speaker 1: What's changed? What's a justification for this extraordinary action basically 237 00:16:10,080 --> 00:16:13,280 Speaker 1: to override the verdict of the jury. And it appears 238 00:16:13,400 --> 00:16:16,760 Speaker 1: that it's simply that there's been a change of administration. 239 00:16:17,280 --> 00:16:21,640 Speaker 1: There's a new US attorney, and he was prosecuted under 240 00:16:21,760 --> 00:16:25,800 Speaker 1: the previous Biden administration. At least the initial indictment was 241 00:16:25,840 --> 00:16:28,840 Speaker 1: brought at that time, and the charges were filed and 242 00:16:29,040 --> 00:16:31,320 Speaker 1: the new sheriff in town wants to undo what the 243 00:16:31,400 --> 00:16:35,480 Speaker 1: jury did, which suggests me that the motivation or justification 244 00:16:35,680 --> 00:16:36,600 Speaker 1: is purely political. 245 00:16:36,800 --> 00:16:40,680 Speaker 2: The judge in the case denied emotion from the defense 246 00:16:40,760 --> 00:16:43,920 Speaker 2: for a quitt last month and said that Kirk acted 247 00:16:43,960 --> 00:16:46,640 Speaker 2: aggressively towards the woman from the outset, and then the 248 00:16:46,680 --> 00:16:50,080 Speaker 2: footage of the incident was sufficient evidence for a jury 249 00:16:50,120 --> 00:16:53,640 Speaker 2: to find that he'd had used objectively unreasonable force. 250 00:16:54,040 --> 00:16:56,000 Speaker 1: Yeah, so as a matter of fact, you know that 251 00:16:56,040 --> 00:16:58,760 Speaker 1: the court is finding that there was sufficient evidence presented 252 00:16:58,800 --> 00:17:01,320 Speaker 1: a trial to justify the case, and as a result, 253 00:17:01,480 --> 00:17:05,480 Speaker 1: the defendant received the full panoply of due process protections. 254 00:17:05,520 --> 00:17:08,879 Speaker 1: I mean, he was represented by counsel. Prosecution had to 255 00:17:08,920 --> 00:17:11,200 Speaker 1: prove his guilt beyond a reasonable doubt, the jury had 256 00:17:11,200 --> 00:17:15,480 Speaker 1: to find him guilty unanimously. And so there again does 257 00:17:15,560 --> 00:17:19,600 Speaker 1: not appear to be any factual basis justification or legal 258 00:17:19,760 --> 00:17:23,040 Speaker 1: justification for overturning the conviction. And what it suggests to 259 00:17:23,119 --> 00:17:26,400 Speaker 1: me is that this is another example of the Trump 260 00:17:26,480 --> 00:17:31,560 Speaker 1: administration kind of ignoring or evading the rule of law 261 00:17:31,880 --> 00:17:35,480 Speaker 1: in the case of undocumented immigrants. In the claim is well, 262 00:17:35,640 --> 00:17:38,840 Speaker 1: they're not entitled to do process. In this particular case, 263 00:17:38,880 --> 00:17:43,480 Speaker 1: with respect to Deputy Trevor Kirk, he received full due process, 264 00:17:43,680 --> 00:17:46,679 Speaker 1: but the administration, the Trump administration, didn't like the result. 265 00:17:46,840 --> 00:17:49,320 Speaker 1: And because they didn't like the result, then they're seeking 266 00:17:49,359 --> 00:17:54,040 Speaker 1: to somehow vacate the jury conviction, which I think undermines 267 00:17:54,080 --> 00:17:57,480 Speaker 1: the rule of law and undermines the public's confidence in 268 00:17:57,480 --> 00:18:01,040 Speaker 1: the criminal justice system and the validity of convictions. 269 00:18:01,720 --> 00:18:06,480 Speaker 2: Besides that, for federal prosecutors who handle the case, including 270 00:18:06,520 --> 00:18:09,280 Speaker 2: the chief of the Public Corruption and Civil Rights Section, 271 00:18:10,119 --> 00:18:13,399 Speaker 2: refuse to sign the plea agreement and withdrew from the case. 272 00:18:13,880 --> 00:18:15,480 Speaker 2: And then three of them resigned. 273 00:18:15,920 --> 00:18:18,240 Speaker 1: Yeah, they stepped down, I mean, which is an expression 274 00:18:18,320 --> 00:18:23,800 Speaker 1: of their disagreement with this result and their perception understanding 275 00:18:23,840 --> 00:18:27,200 Speaker 1: that this was just an unfair, unjustified action by their 276 00:18:27,200 --> 00:18:31,879 Speaker 1: supervisor and again is not justified by any legal principle 277 00:18:31,960 --> 00:18:35,439 Speaker 1: and any legal president, any legal authority. And you know, 278 00:18:35,680 --> 00:18:38,440 Speaker 1: there's kind of a parallel here, I mean with respective 279 00:18:38,480 --> 00:18:41,159 Speaker 1: plea bargains. For example, if a defendant enters into a 280 00:18:41,160 --> 00:18:45,679 Speaker 1: plea bargain, he may withdraw the plea bargain after the fact, 281 00:18:46,200 --> 00:18:48,960 Speaker 1: but only based upon a finding of by the court 282 00:18:49,359 --> 00:18:51,800 Speaker 1: that withdrawing the Guilly plea would be in the interests 283 00:18:51,800 --> 00:18:54,920 Speaker 1: of justice. And so what's the standard here if the 284 00:18:55,040 --> 00:18:59,359 Speaker 1: judges ultimately to decide whether or not a valid jury 285 00:18:59,440 --> 00:19:03,639 Speaker 1: verdict should be overridden for political considerations. I mean, that 286 00:19:03,680 --> 00:19:07,080 Speaker 1: doesn't strike as advancing the interests of justice. In fact, 287 00:19:07,119 --> 00:19:11,320 Speaker 1: it's just the opposite. It's ignoring justice. Justice was done 288 00:19:11,359 --> 00:19:14,359 Speaker 1: in this case. And the absence again of any claims 289 00:19:14,359 --> 00:19:18,440 Speaker 1: of wrongdoing, unfair trial, and effective assistance accounts any of 290 00:19:18,520 --> 00:19:21,439 Speaker 1: those types of legal arguments. This was a valid conviction 291 00:19:21,760 --> 00:19:26,560 Speaker 1: and it shouldn't be ignored and disregarded by the Department 292 00:19:26,560 --> 00:19:29,800 Speaker 1: of Justice, apparently the only reason being that they just 293 00:19:29,840 --> 00:19:31,040 Speaker 1: didn't like the end result. 294 00:19:31,359 --> 00:19:34,160 Speaker 2: Yeah. Well, there was sort of a social media campaign 295 00:19:34,160 --> 00:19:38,160 Speaker 2: of support for Kirk, and a spokesperson for the LA 296 00:19:38,320 --> 00:19:43,040 Speaker 2: Sheriff's Professional Association wrote a letter to Trump urging him 297 00:19:43,040 --> 00:19:45,520 Speaker 2: to intervene before the case went to trial. 298 00:19:46,200 --> 00:19:49,240 Speaker 1: That's the political reason. That was a political influence that 299 00:19:49,280 --> 00:19:52,320 Speaker 1: apparently caused the US attorneys to seek to override the 300 00:19:52,400 --> 00:19:55,160 Speaker 1: jury's conviction. And that's not a legitimate basis. I mean, 301 00:19:55,320 --> 00:19:58,840 Speaker 1: conviction should be based on the facts and the evidence, 302 00:19:59,240 --> 00:20:04,440 Speaker 1: not on issues political influence political affiliation with one party 303 00:20:04,560 --> 00:20:08,880 Speaker 1: or another. That's not democracy in the United States. That's 304 00:20:08,960 --> 00:20:12,920 Speaker 1: not the way democracy works in this country. This type 305 00:20:12,920 --> 00:20:16,200 Speaker 1: of outcome is going to serve to undermine the public's 306 00:20:16,240 --> 00:20:19,439 Speaker 1: confidence in the rule of law and the criminal justice system. 307 00:20:19,480 --> 00:20:21,480 Speaker 1: And they're going to say, well, how come this guy 308 00:20:21,560 --> 00:20:25,080 Speaker 1: got such favorable treatment and resolved? What about the other guy? 309 00:20:25,160 --> 00:20:28,720 Speaker 1: You know, what about somebody who wasn't a political favorite, 310 00:20:28,880 --> 00:20:31,480 Speaker 1: What about someone who wasn't a law enforcement officer, what 311 00:20:31,560 --> 00:20:35,160 Speaker 1: about someone who's an ordinary citizen. Would the ordinary citizen 312 00:20:35,720 --> 00:20:39,080 Speaker 1: receive this type of outcome a guilty verdict being overturned 313 00:20:39,160 --> 00:20:41,480 Speaker 1: for political reasons highly unlikely? 314 00:20:41,960 --> 00:20:43,960 Speaker 2: And why should I serve on a jury if you're 315 00:20:44,000 --> 00:20:47,119 Speaker 2: going to take my verdict in my time exactly? 316 00:20:47,200 --> 00:20:51,880 Speaker 1: I mean, it has so many negative, corrupting implications. I'm 317 00:20:51,960 --> 00:20:57,960 Speaker 1: really hopeful that the judge rejects this motion to withdraw 318 00:20:58,160 --> 00:21:02,040 Speaker 1: the guilty vertict and permit Kirk to plead gilly to 319 00:21:02,080 --> 00:21:04,639 Speaker 1: a misdemeanor. I mean, he's convicted of a felony and 320 00:21:04,680 --> 00:21:07,600 Speaker 1: now they want him to plead to a misdemeanor and 321 00:21:07,680 --> 00:21:10,840 Speaker 1: then they're going to give him probation. It's just shocking. 322 00:21:10,960 --> 00:21:14,240 Speaker 1: It's shocking. It's shocking action by the Department of Justice. 323 00:21:14,440 --> 00:21:16,200 Speaker 2: Is the final decision the judges? 324 00:21:16,840 --> 00:21:18,840 Speaker 1: Well, it's a good question, because I think it's such 325 00:21:18,840 --> 00:21:23,119 Speaker 1: an extraordinary action. I really strain to come up with 326 00:21:22,560 --> 00:21:27,400 Speaker 1: the legal authority. What's the legal authority for the judge, 327 00:21:27,440 --> 00:21:31,840 Speaker 1: the trial judge or presiding judge to vacate a valid 328 00:21:32,320 --> 00:21:35,240 Speaker 1: jury conviction, And I'm not aware of any I'm not 329 00:21:35,280 --> 00:21:37,960 Speaker 1: aware of any statute. I'm not aware of any case 330 00:21:38,000 --> 00:21:42,520 Speaker 1: precedent that would afford the trial judge to that authority. 331 00:21:42,680 --> 00:21:45,639 Speaker 1: So that's clearly an issue. The problem here is is 332 00:21:45,680 --> 00:21:47,679 Speaker 1: that who's going to appeal? I mean, if the judge 333 00:21:47,720 --> 00:21:51,840 Speaker 1: does this and vacates the jury conviction, who's going to 334 00:21:51,840 --> 00:21:54,680 Speaker 1: appeal it? Because the parties are in agreement. The defense 335 00:21:54,680 --> 00:21:57,920 Speaker 1: certainly would like this outcome, and the Prosecutor's office, US 336 00:21:57,920 --> 00:22:01,200 Speaker 1: Attorney's Office is proposing this result, and so there would 337 00:22:01,240 --> 00:22:05,960 Speaker 1: be no way to review judicially review the trial court's decision, 338 00:22:06,440 --> 00:22:07,760 Speaker 1: and so I think it would be final. 339 00:22:08,240 --> 00:22:11,200 Speaker 2: Also, if he's allowed to plead down to a misdemeanor, 340 00:22:11,640 --> 00:22:13,640 Speaker 2: that means he could continue to work as a law 341 00:22:13,680 --> 00:22:16,600 Speaker 2: enforcement officer, and he could retain his right to own 342 00:22:16,600 --> 00:22:17,280 Speaker 2: a fire run. 343 00:22:17,640 --> 00:22:19,479 Speaker 1: Yeah, I think that's part of it. I think that's 344 00:22:19,560 --> 00:22:21,959 Speaker 1: part of the justification, at least from the US journeys 345 00:22:22,000 --> 00:22:23,679 Speaker 1: of it. Oh, we don't want him to have the 346 00:22:23,720 --> 00:22:27,600 Speaker 1: stigma of a felon and all of the implications that 347 00:22:27,640 --> 00:22:31,119 Speaker 1: are associated with that, with being a convicted felon, you know, 348 00:22:31,160 --> 00:22:35,280 Speaker 1: which again would prohibit him from possessing a firearm. So 349 00:22:35,320 --> 00:22:38,600 Speaker 1: that's a federal crime for a felon to possess a firearm, 350 00:22:38,640 --> 00:22:42,000 Speaker 1: and so he couldn't work in any capacity that would 351 00:22:42,240 --> 00:22:45,440 Speaker 1: require him to carry a firearm. But you know, that's 352 00:22:45,440 --> 00:22:49,080 Speaker 1: what happens to defendants every day. You know, thousands of 353 00:22:49,080 --> 00:22:52,920 Speaker 1: defendants are convicted of felonies and that's one of the implications. 354 00:22:52,960 --> 00:22:56,359 Speaker 1: They're prohibited from possessing a firearm. So what's so unique 355 00:22:56,400 --> 00:22:59,240 Speaker 1: about this guy? Why does he get a pass? Why 356 00:22:59,280 --> 00:23:03,840 Speaker 1: should he bemitted to avoid that consequence of a felony conviction? 357 00:23:04,119 --> 00:23:05,720 Speaker 1: I can think of none other than political. 358 00:23:06,080 --> 00:23:10,359 Speaker 2: It's reminiscent of all the federal prosecutors who are resigned 359 00:23:10,760 --> 00:23:16,040 Speaker 2: when the Manhattan US Attorney's Office was told to drop 360 00:23:16,080 --> 00:23:19,880 Speaker 2: the charges against New York City Mayor Eric Adams so 361 00:23:19,920 --> 00:23:24,480 Speaker 2: that he could help the Trump administration in its immigration arrests. 362 00:23:24,720 --> 00:23:29,080 Speaker 1: Right. I think it's another instance where the line prosecutors 363 00:23:29,119 --> 00:23:31,560 Speaker 1: that are doing the heavy lifting in these cases are 364 00:23:31,600 --> 00:23:36,760 Speaker 1: just outraged by the political influence that the Trump administration 365 00:23:36,880 --> 00:23:39,840 Speaker 1: is having on the performance of their duties and obligations. 366 00:23:39,960 --> 00:23:42,479 Speaker 1: You know, they know, and I know, having served as 367 00:23:42,480 --> 00:23:46,600 Speaker 1: a former federal prosecutor, that these convictions should be based 368 00:23:46,600 --> 00:23:49,359 Speaker 1: solely on the facts and the evidence, limited by the law, 369 00:23:49,680 --> 00:23:53,520 Speaker 1: and they shouldn't be influenced by political actors, by political parties, 370 00:23:53,520 --> 00:23:57,080 Speaker 1: by political administrations. That's not justice. That's not how democracy 371 00:23:57,400 --> 00:24:00,199 Speaker 1: supposed to work and operate in the United States of America. 372 00:24:00,359 --> 00:24:02,840 Speaker 1: But it is, and we're seeing it, and not simply 373 00:24:02,960 --> 00:24:05,600 Speaker 1: one case, you know, the mayor at Eric Adams case, 374 00:24:05,640 --> 00:24:08,399 Speaker 1: but you know, this is another incident where that's happened, 375 00:24:08,760 --> 00:24:11,240 Speaker 1: and who knows if they will be more of these 376 00:24:11,280 --> 00:24:14,440 Speaker 1: types of cases. And here in addition, you know, we're 377 00:24:14,480 --> 00:24:17,199 Speaker 1: seeing you know, the Trump administration saying we want the 378 00:24:17,240 --> 00:24:20,760 Speaker 1: Department of Justice, the Attorney General's a target this particular individual. Well, 379 00:24:20,760 --> 00:24:22,720 Speaker 1: that's not how it works either. You don't go after 380 00:24:22,840 --> 00:24:26,320 Speaker 1: individuals by name because of who they are. You go 381 00:24:26,400 --> 00:24:29,920 Speaker 1: after individuals based upon what they did, what the facts are, 382 00:24:29,960 --> 00:24:33,600 Speaker 1: what the evidence is, not on their political affiliation or 383 00:24:33,640 --> 00:24:37,120 Speaker 1: their political opinion or actions that they taken that political 384 00:24:37,160 --> 00:24:41,639 Speaker 1: party views unfavorably. That's not how justice should work in 385 00:24:41,680 --> 00:24:42,240 Speaker 1: this country. 386 00:24:42,560 --> 00:24:45,719 Speaker 2: US attorneys are political appointments. But do you think that 387 00:24:45,760 --> 00:24:49,439 Speaker 2: Trump's picks are even more charged politically? I mean, he 388 00:24:49,640 --> 00:24:53,879 Speaker 2: just withdrew the controversial nomination of Ed Martin to be 389 00:24:54,280 --> 00:24:56,160 Speaker 2: the DC US Attorney. 390 00:24:56,480 --> 00:24:58,639 Speaker 1: Well, I think the problem is is that we know 391 00:24:58,720 --> 00:25:05,040 Speaker 1: that this particular presence that values loyalty, perhaps above all things, loyalty, 392 00:25:05,320 --> 00:25:09,600 Speaker 1: and so whatever he wants done, he expects the persons 393 00:25:09,640 --> 00:25:13,560 Speaker 1: that he has placed in those positions through political appointment 394 00:25:13,600 --> 00:25:16,120 Speaker 1: presidential appointment, to do what he wants them to do, 395 00:25:16,600 --> 00:25:20,640 Speaker 1: with no questions asking. I mean, when I was a prosecutor, 396 00:25:21,160 --> 00:25:25,000 Speaker 1: I never ever was looking over my shoulder thinking, oh, 397 00:25:25,040 --> 00:25:28,400 Speaker 1: I better not decide this matter this way, or take 398 00:25:28,440 --> 00:25:32,960 Speaker 1: this particular action because of political concerns or political retaliation, 399 00:25:33,920 --> 00:25:36,320 Speaker 1: or I'm going to be demoted if I do this 400 00:25:36,440 --> 00:25:40,199 Speaker 1: or I do that. That never entered my mind. You know, 401 00:25:40,400 --> 00:25:44,600 Speaker 1: the political implications, whether this would favor a political party, 402 00:25:44,680 --> 00:25:47,760 Speaker 1: or disfavorite political party. Harma political party was never a 403 00:25:47,800 --> 00:25:51,919 Speaker 1: consideration ever, and now it appears to be a consideration always. 404 00:25:52,000 --> 00:25:55,199 Speaker 1: There's this kind of black cloud I think over federal 405 00:25:55,240 --> 00:25:58,560 Speaker 1: prosecutors as to, oh, is there going to be retaliation 406 00:25:59,040 --> 00:26:01,920 Speaker 1: if I do this right, take this particular action. And 407 00:26:01,920 --> 00:26:06,040 Speaker 1: that's very chilling. That's very chilling. It's very disturbing, and 408 00:26:06,080 --> 00:26:09,480 Speaker 1: it's not what one would expect to happen in a free, 409 00:26:09,600 --> 00:26:12,800 Speaker 1: open democracy. That's what you'd expect and what we often 410 00:26:12,880 --> 00:26:16,159 Speaker 1: see in countries that are run by authoritarian governments and 411 00:26:16,280 --> 00:26:17,480 Speaker 1: authoritarian presidents. 412 00:26:17,840 --> 00:26:20,320 Speaker 2: Can you think of any case even similar to what 413 00:26:20,359 --> 00:26:22,920 Speaker 2: the US attorney is doing here or trying to do here. 414 00:26:23,200 --> 00:26:28,399 Speaker 1: I can't stress enough just how shocking, how unprecedented it is. 415 00:26:28,480 --> 00:26:31,240 Speaker 1: I mean, I've been at this. I was a prosecutor 416 00:26:31,240 --> 00:26:33,640 Speaker 1: for nine years before I joined the law faculty here. 417 00:26:33,680 --> 00:26:37,080 Speaker 1: I've been here for decades now. I cannot recall a 418 00:26:37,160 --> 00:26:41,560 Speaker 1: federal case where this has happened where the prosecutors said, oh, oops, 419 00:26:41,600 --> 00:26:45,399 Speaker 1: you know, yeah, we initiated this prosecution, we initiated the 420 00:26:45,440 --> 00:26:49,240 Speaker 1: criminal charges, we advocated to the jury for conviction, and 421 00:26:49,280 --> 00:26:52,000 Speaker 1: now we want that jury conviction to be vacated, not 422 00:26:52,160 --> 00:26:55,080 Speaker 1: for anything that was done wrong at the trial or 423 00:26:55,119 --> 00:26:59,480 Speaker 1: because of insufficient evidence or newly discovered evidence of proofs 424 00:26:59,600 --> 00:27:02,440 Speaker 1: is then a now just because now the new sheriff 425 00:27:02,440 --> 00:27:03,800 Speaker 1: in town doesn't like that result. 426 00:27:04,080 --> 00:27:06,760 Speaker 2: Well, it'll be really interesting to see how the judge 427 00:27:06,760 --> 00:27:10,359 Speaker 2: handles this in the sentencing. Thanks for joining me today, Jimmy. 428 00:27:10,880 --> 00:27:14,719 Speaker 2: That's professor Jimmy Garoule of Notre Dame Law School. Up next, 429 00:27:14,960 --> 00:27:18,640 Speaker 2: attorneys general sued the Department of Health and Human Services. 430 00:27:18,800 --> 00:27:19,639 Speaker 2: This is Bloomberg. 431 00:27:22,680 --> 00:27:26,919 Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio. 432 00:27:28,160 --> 00:27:32,280 Speaker 2: Twenty Democratic attorneys general are suing the US Department of 433 00:27:32,320 --> 00:27:36,440 Speaker 2: Health and Human Services for firing health workers and cutting 434 00:27:36,520 --> 00:27:40,240 Speaker 2: programs in a lawsuit filed on Monday. They're pushing for 435 00:27:40,359 --> 00:27:45,720 Speaker 2: an injunction to prevent the quote unconstitutional and illegal dismantling 436 00:27:45,880 --> 00:27:50,080 Speaker 2: of the AHHS, which they claim is already wreaking havoc 437 00:27:50,200 --> 00:27:54,160 Speaker 2: on the health landscape. The lawsuit comes after a massive 438 00:27:54,280 --> 00:27:58,760 Speaker 2: restructuring of the agency by Health Secretary Robert F. Kennedy. 439 00:27:58,840 --> 00:28:03,600 Speaker 2: Junior healthcare attorney Harry Nelson, a partner at Leech Tishman 440 00:28:03,720 --> 00:28:08,920 Speaker 2: Nelson Hardiman Harry in general. How has RFK Junior changed 441 00:28:08,920 --> 00:28:09,639 Speaker 2: the department. 442 00:28:10,160 --> 00:28:12,560 Speaker 5: There's been a pretty significant amount of changes. I think 443 00:28:12,600 --> 00:28:16,640 Speaker 5: the biggest change has been over ten thousand employees layoffs 444 00:28:16,680 --> 00:28:22,639 Speaker 5: since April, affecting nearly every major sub agency within the 445 00:28:22,640 --> 00:28:25,600 Speaker 5: Department of Health and Human Services, including the Center for 446 00:28:25,720 --> 00:28:29,840 Speaker 5: Disease Control, the FDA, the National Institute of Health, and others. 447 00:28:30,160 --> 00:28:34,800 Speaker 5: So there's just a lot fewer personnel in place. As 448 00:28:34,840 --> 00:28:38,040 Speaker 5: you mentioned, there's been a consolidation of twenty eight total 449 00:28:38,080 --> 00:28:41,200 Speaker 5: sub agencies within Health and Human Services down to fifteen, 450 00:28:41,760 --> 00:28:45,760 Speaker 5: with various mergers and eliminations, a number of closures of 451 00:28:45,880 --> 00:28:50,480 Speaker 5: programs of public health programs. The FDA passed on a 452 00:28:50,520 --> 00:28:55,760 Speaker 5: bird flu vaccine application due to some of the lab shutdowns. 453 00:28:56,040 --> 00:29:01,080 Speaker 5: The Center for Disease Control halted measles testing despite a 454 00:29:01,280 --> 00:29:05,360 Speaker 5: nationwide outbreak that we've been seeing. NIH has been suspending 455 00:29:05,400 --> 00:29:08,440 Speaker 5: research trials. Those have been the major disruptions. There's been 456 00:29:08,440 --> 00:29:11,920 Speaker 5: a few smaller ones. There was a specific Post nine 457 00:29:11,960 --> 00:29:17,600 Speaker 5: to eleven program for first responders that has been interrupted 458 00:29:17,720 --> 00:29:22,960 Speaker 5: because of staff shutdowns, and of course DOGE, the Department 459 00:29:23,000 --> 00:29:27,040 Speaker 5: of Government Efficiency is like continuing to all of the 460 00:29:27,080 --> 00:29:32,560 Speaker 5: above activities just streamlining organizationally getting rid of people, and 461 00:29:32,840 --> 00:29:34,720 Speaker 5: you know, every day is bringing new changes. 462 00:29:35,080 --> 00:29:37,920 Speaker 2: And tell us about the allegations in the lawsuit. 463 00:29:38,520 --> 00:29:43,000 Speaker 5: Sure, so, twenty States, led by the New York Attorney 464 00:29:43,000 --> 00:29:47,280 Speaker 5: General Laritia James, filed suit in Rhode Island, and they've 465 00:29:47,360 --> 00:29:50,040 Speaker 5: essentially alleged that all of the actions we just described 466 00:29:50,160 --> 00:29:53,440 Speaker 5: are illegal and they undermined the Department of Health and 467 00:29:53,480 --> 00:29:59,600 Speaker 5: Human Services ability to fulfill its statutory obligations. So specifically, 468 00:29:59,600 --> 00:30:04,240 Speaker 5: they all a violation of the Administrative Procedure Act, which 469 00:30:04,280 --> 00:30:08,360 Speaker 5: are the rules by which government program changes happen so 470 00:30:08,440 --> 00:30:11,400 Speaker 5: that there's notice and an opportunity to be heard with 471 00:30:11,520 --> 00:30:15,160 Speaker 5: what rules are made, and where there's any changes, there's 472 00:30:15,200 --> 00:30:17,840 Speaker 5: an allegation in the case of a violation of the 473 00:30:17,880 --> 00:30:22,640 Speaker 5: separation of powers, that the executive branch has essentially stepped 474 00:30:22,680 --> 00:30:27,480 Speaker 5: in and dismantled programs that were authorized specifically by Congress, 475 00:30:27,600 --> 00:30:32,480 Speaker 5: invading Congress's authority. And there's violations that many of the 476 00:30:32,520 --> 00:30:36,640 Speaker 5: specific laws related to public health are being violated, you know, 477 00:30:36,760 --> 00:30:40,760 Speaker 5: like the first Responders example, where there's people out there 478 00:30:40,800 --> 00:30:44,959 Speaker 5: stakeholders who are beneficiaries of these programs whose rights are 479 00:30:44,960 --> 00:30:48,959 Speaker 5: being violated. So those are the primary legal theories in 480 00:30:49,000 --> 00:30:49,440 Speaker 5: this case. 481 00:30:50,280 --> 00:30:54,760 Speaker 2: Do they take aim at Channity's you know, larger public 482 00:30:54,880 --> 00:31:00,640 Speaker 2: health agenda and you know, his criticisms of COVID and vaccines. 483 00:31:00,120 --> 00:31:03,320 Speaker 5: All that, that is really not part of this case. 484 00:31:03,520 --> 00:31:06,800 Speaker 5: I mean, this case is much more about the downsizing, 485 00:31:06,880 --> 00:31:11,480 Speaker 5: the radical downsizing of this agency and the way that 486 00:31:11,560 --> 00:31:17,760 Speaker 5: it proceeded, and not about rfk's specific idiosyncret views. And frankly, 487 00:31:18,040 --> 00:31:21,760 Speaker 5: it's not clear to what extent his views are driving 488 00:31:21,800 --> 00:31:24,920 Speaker 5: this because the behavior in many ways parallels what we 489 00:31:25,080 --> 00:31:28,960 Speaker 5: see that same agency DOGE doing in other parts of 490 00:31:29,000 --> 00:31:31,680 Speaker 5: the federal government. So in many ways it looks like 491 00:31:31,720 --> 00:31:38,960 Speaker 5: a broader ideological disruption and downsizing of a federal agency 492 00:31:39,200 --> 00:31:43,320 Speaker 5: rather than like rfkse particular disbelief in particular kinds of 493 00:31:43,400 --> 00:31:44,200 Speaker 5: health programs. 494 00:31:44,280 --> 00:31:48,720 Speaker 2: It follows other lawsuits that claim that the cuts violate 495 00:31:49,240 --> 00:31:53,440 Speaker 2: the constitutions separation of powers and that basically they're taking 496 00:31:53,480 --> 00:31:58,280 Speaker 2: away congresses sign off on these things and money already 497 00:31:58,280 --> 00:31:59,880 Speaker 2: appropriated by Congress. 498 00:32:00,520 --> 00:32:04,040 Speaker 5: Yeah, it really is the greatest test of constitutional powers 499 00:32:04,120 --> 00:32:07,360 Speaker 5: and what the executive can do to essentially shut down 500 00:32:07,680 --> 00:32:11,440 Speaker 5: all these programs that Congress authorized and established It's a 501 00:32:11,520 --> 00:32:15,680 Speaker 5: fascinating moment in terms of constitutional principles and how far 502 00:32:15,880 --> 00:32:17,000 Speaker 5: executive power can go. 503 00:32:17,720 --> 00:32:22,840 Speaker 2: Last week, the Trump administration released a proposed budget which 504 00:32:22,880 --> 00:32:28,360 Speaker 2: has a twenty six percent cut to the HS discretionary budget, 505 00:32:28,440 --> 00:32:32,800 Speaker 2: but ask for five hundred million for Kennedy's Make America 506 00:32:32,960 --> 00:32:37,120 Speaker 2: Healthy Again initiative. Let's say the proposed budget is approved 507 00:32:37,120 --> 00:32:40,960 Speaker 2: by Congress. Does this suit and lose some of its 508 00:32:41,200 --> 00:32:45,800 Speaker 2: power because Congress has decided to cut the budget for HHS. 509 00:32:46,080 --> 00:32:48,920 Speaker 5: I think this case is much more about the process, 510 00:32:49,360 --> 00:32:52,200 Speaker 5: you know again, about the administrative process by which things 511 00:32:52,200 --> 00:32:56,640 Speaker 5: have proceeded, than about the actual funding changes. The funding 512 00:32:56,720 --> 00:33:02,680 Speaker 5: changes that are proposed are certainly directionally the same as 513 00:33:02,960 --> 00:33:05,080 Speaker 5: as some of these changes, but right now we're in 514 00:33:05,240 --> 00:33:09,520 Speaker 5: an already funded environment where moneies have already been allocated 515 00:33:09,760 --> 00:33:11,720 Speaker 5: and we're not talking about it. So the two things 516 00:33:11,760 --> 00:33:14,480 Speaker 5: do go kind of handing gloves. But it's a slightly 517 00:33:14,520 --> 00:33:17,680 Speaker 5: different issue because the money is authorized. Congress has made 518 00:33:17,800 --> 00:33:20,880 Speaker 5: choices by VIR two of our previous budgets, and so 519 00:33:21,040 --> 00:33:25,120 Speaker 5: if the twenty twenty six budget you know is inactive, frankly, 520 00:33:25,120 --> 00:33:28,360 Speaker 5: it will be different cuts on the same trajectory and 521 00:33:28,400 --> 00:33:32,920 Speaker 5: they'll have additional further impacts. But these are two different things. 522 00:33:33,160 --> 00:33:36,960 Speaker 2: So there's also similar cases that try to block the 523 00:33:37,520 --> 00:33:42,720 Speaker 2: termination of billions of dollars in grants awarded by federal 524 00:33:42,720 --> 00:33:46,720 Speaker 2: health agencies in support of public health research. I keep 525 00:33:46,720 --> 00:33:50,800 Speaker 2: hearing about cuts and funding to research. Is this like 526 00:33:51,040 --> 00:33:55,520 Speaker 2: overblown or is it really a serious threat to research? 527 00:33:56,280 --> 00:33:56,360 Speaker 1: Now? 528 00:33:56,640 --> 00:34:00,400 Speaker 5: This is affecting our medical and public health reas search 529 00:34:00,480 --> 00:34:04,800 Speaker 5: institutions across the board nationally. I believe in the twenty 530 00:34:04,800 --> 00:34:10,120 Speaker 5: twenty six budget, the proposal is eighteen billion dollars less 531 00:34:10,400 --> 00:34:14,480 Speaker 5: funding for biomedical research being conducted, but I think that 532 00:34:14,560 --> 00:34:17,799 Speaker 5: might be biomedical research and global health initiatives. But we're 533 00:34:17,800 --> 00:34:22,560 Speaker 5: talking a massive scale of reduction, assuming that it's going 534 00:34:22,640 --> 00:34:26,480 Speaker 5: to be consistent with what our f case indicated, we 535 00:34:26,560 --> 00:34:30,200 Speaker 5: can expect the cuts to come from new drugs and 536 00:34:30,560 --> 00:34:36,359 Speaker 5: more specialized health conditions, because our case been promising that 537 00:34:36,400 --> 00:34:39,920 Speaker 5: there's going to be a greater focus on chronic conditions 538 00:34:39,960 --> 00:34:43,520 Speaker 5: where there is a theory more thang for the buck 539 00:34:43,600 --> 00:34:46,200 Speaker 5: in terms of the number of people's affected, and a 540 00:34:46,239 --> 00:34:51,600 Speaker 5: focus on more disease prevention of things like diabetes. So 541 00:34:51,760 --> 00:34:54,520 Speaker 5: I do think that this is a profound shift for 542 00:34:54,680 --> 00:34:59,200 Speaker 5: the pharmaceutical industry, for all of the universities and all 543 00:34:59,239 --> 00:35:04,600 Speaker 5: of the academic researchers at our health systems around the country, 544 00:35:04,640 --> 00:35:09,000 Speaker 5: like radical changes in labs being shut down, projects being shuttered, 545 00:35:09,600 --> 00:35:11,520 Speaker 5: and just a massive, massive disruption. 546 00:35:12,120 --> 00:35:16,000 Speaker 2: Thinking about the USAID, which was the first agency to 547 00:35:16,040 --> 00:35:21,160 Speaker 2: be dismantled basically by Doge. And in those cases, even 548 00:35:21,239 --> 00:35:25,080 Speaker 2: though the judges said that, you know, you can't dismantle 549 00:35:25,120 --> 00:35:28,920 Speaker 2: an agency completely, but it was already too late by 550 00:35:28,960 --> 00:35:31,960 Speaker 2: the time the judges orders came out. I mean, people 551 00:35:32,000 --> 00:35:37,000 Speaker 2: had been fired already and things had already started to disintegrate. 552 00:35:37,360 --> 00:35:39,640 Speaker 2: Some m the same thing happened here. I mean, he's 553 00:35:39,680 --> 00:35:42,320 Speaker 2: already done the Damage's. 554 00:35:41,560 --> 00:35:43,879 Speaker 5: A fair question. I mean a lot of the researchers 555 00:35:43,960 --> 00:35:47,200 Speaker 5: are people who have jobs. For example, many people who 556 00:35:47,200 --> 00:35:49,880 Speaker 5: are like they might be researching cancer and also treating 557 00:35:50,400 --> 00:35:53,120 Speaker 5: in a local hospital. So in the case of a 558 00:35:53,160 --> 00:35:56,480 Speaker 5: lot of our research institutions, you have different categories of 559 00:35:56,480 --> 00:36:00,000 Speaker 5: researchers in different places who are going to be affected differently. Obviously, 560 00:36:00,200 --> 00:36:03,160 Speaker 5: people who are literally within the Nationalists to doue of 561 00:36:03,200 --> 00:36:05,279 Speaker 5: health are going to have to, you know, if their 562 00:36:05,280 --> 00:36:08,000 Speaker 5: positions are cutters looking for new jobs. But what I'm 563 00:36:08,040 --> 00:36:12,640 Speaker 5: hearing is a lot of uncertainty for doctors who you know, 564 00:36:12,680 --> 00:36:16,680 Speaker 5: who were including research activities, you know, in their priorities. 565 00:36:16,719 --> 00:36:19,960 Speaker 5: I think the cut represent like something like one third 566 00:36:20,520 --> 00:36:23,040 Speaker 5: of the total budget of the Nationalists to due to health, 567 00:36:23,200 --> 00:36:26,000 Speaker 5: and again it's going to be interesting to see where 568 00:36:26,000 --> 00:36:28,279 Speaker 5: it hits. Single biggest category, of course the United States 569 00:36:28,320 --> 00:36:33,200 Speaker 5: is cancer research. Enormous research dollars going into mental health, 570 00:36:33,440 --> 00:36:36,000 Speaker 5: infectious disease, and it's not clear that any of those 571 00:36:36,040 --> 00:36:38,480 Speaker 5: areas are going to be priorities. You know, we have 572 00:36:38,840 --> 00:36:43,760 Speaker 5: billions of dollars going into HIV AIDS research, various rare diseases, aging, 573 00:36:43,880 --> 00:36:45,960 Speaker 5: It's not clear where any of it's going to go, 574 00:36:46,080 --> 00:36:50,400 Speaker 5: and it can't be good for the advancement of public health. 575 00:36:50,680 --> 00:36:53,160 Speaker 5: And in many ways it does look like the dismantling 576 00:36:53,800 --> 00:36:56,600 Speaker 5: of something that has been sort of a real jewel 577 00:36:56,760 --> 00:36:58,280 Speaker 5: in the American public health system. 578 00:36:58,600 --> 00:37:00,680 Speaker 2: Obviously, they haven't filed a recent response yet, and I 579 00:37:00,719 --> 00:37:03,759 Speaker 2: don't think he's even said anything about the suit. I mean, 580 00:37:03,800 --> 00:37:06,200 Speaker 2: what might their possible defense be. 581 00:37:06,600 --> 00:37:08,839 Speaker 5: I mean, it's really a question of how far executive 582 00:37:08,920 --> 00:37:13,440 Speaker 5: authority goes The Department of Health and Human Services is 583 00:37:13,680 --> 00:37:18,520 Speaker 5: part of the executive brands. So in theory, the administration 584 00:37:18,920 --> 00:37:23,080 Speaker 5: has the power. Even though Congress authorizes the funding and 585 00:37:23,160 --> 00:37:27,240 Speaker 5: allocates it, the administration gets to decide how the agency 586 00:37:27,280 --> 00:37:28,920 Speaker 5: is working. And I think what we're going to hear 587 00:37:28,960 --> 00:37:32,680 Speaker 5: from this administration is that this agency was floated, that 588 00:37:32,760 --> 00:37:36,200 Speaker 5: it was too big, too inefficient, that there was no accountability, 589 00:37:36,760 --> 00:37:41,560 Speaker 5: and that they are essentially taking a painful step that 590 00:37:42,080 --> 00:37:45,400 Speaker 5: reduces red tape and kind of forces federal health policy 591 00:37:45,800 --> 00:37:48,319 Speaker 5: to be improved. That's the argument they're making. I'm not 592 00:37:48,400 --> 00:37:52,799 Speaker 5: endorsing it by forcing more action into the states and 593 00:37:52,840 --> 00:37:56,840 Speaker 5: in the communities rather than with the centralized federal mandate. 594 00:37:57,040 --> 00:37:58,759 Speaker 5: So those are the argument they're going to make. They're 595 00:37:58,760 --> 00:38:02,399 Speaker 5: going to argue about and about budget deficits. But it'll 596 00:38:02,440 --> 00:38:04,680 Speaker 5: be interesting to see how the court treat this one, 597 00:38:04,719 --> 00:38:06,600 Speaker 5: and it would not surprise me if this ends up 598 00:38:06,640 --> 00:38:07,520 Speaker 5: in the Screme Court. 599 00:38:07,719 --> 00:38:12,600 Speaker 2: Speaking about RFK Junior in general, he had those very controversial, 600 00:38:12,760 --> 00:38:17,280 Speaker 2: tough hearings for his nomination, and you know, because he's 601 00:38:17,320 --> 00:38:21,000 Speaker 2: a vaccine skeptic. To put it mildly, he made promises 602 00:38:21,000 --> 00:38:25,080 Speaker 2: about not disturbing vaccines, but has he already started to 603 00:38:25,360 --> 00:38:28,080 Speaker 2: undermine vaccines in different ways. 604 00:38:28,600 --> 00:38:32,640 Speaker 5: Absolutely, there's definitely been i would say, a quiet rollback 605 00:38:33,320 --> 00:38:38,480 Speaker 5: on numerous vaccines. And we're already seeing, you know, examples 606 00:38:38,600 --> 00:38:41,359 Speaker 5: of the importance vaccines with the musile outbreaks that are 607 00:38:41,360 --> 00:38:44,200 Speaker 5: happening in Texas in the other parts of the country. 608 00:38:44,400 --> 00:38:49,480 Speaker 5: But we're already seeing essentially a vaccine opportunities foregone, like 609 00:38:49,480 --> 00:38:52,080 Speaker 5: with the bird flu, based on lack of personnel. And 610 00:38:52,360 --> 00:38:54,879 Speaker 5: I do think it's happening sort of in a lot 611 00:38:54,920 --> 00:38:58,000 Speaker 5: of quiet steps rather than in one self swoop. I 612 00:38:58,040 --> 00:39:01,520 Speaker 5: expect that will continue based on the not only URK, 613 00:39:01,680 --> 00:39:04,080 Speaker 5: but the people around him, for whom this is really 614 00:39:04,400 --> 00:39:07,640 Speaker 5: you know, a kind of passionate point our K has 615 00:39:07,680 --> 00:39:10,799 Speaker 5: a normous power as the head of the agency, and 616 00:39:10,880 --> 00:39:13,040 Speaker 5: what we're seeing is in a number of key public 617 00:39:13,040 --> 00:39:17,120 Speaker 5: health positions are going to people who are really passionate 618 00:39:17,160 --> 00:39:20,640 Speaker 5: ideologue for all of the positions that he's about. And 619 00:39:20,680 --> 00:39:24,040 Speaker 5: so we're seeing a number of anti vax people in 620 00:39:24,200 --> 00:39:27,640 Speaker 5: leadership roles, and obviously that that doesn't bode well for 621 00:39:27,920 --> 00:39:30,719 Speaker 5: getting us ready for the vaccines we're going to need 622 00:39:31,000 --> 00:39:31,840 Speaker 5: in the coming years. 623 00:39:32,040 --> 00:39:36,160 Speaker 2: Yeah, I mean the cuts in research funding are particularly concerning. 624 00:39:36,520 --> 00:39:40,839 Speaker 5: It's radical, and it feels like the deliberate sabotage of 625 00:39:40,880 --> 00:39:44,480 Speaker 5: our public health infrastructure and an illegal power graph without 626 00:39:44,520 --> 00:39:48,359 Speaker 5: any plan of how this impacts anybody. You know, our 627 00:39:48,400 --> 00:39:52,760 Speaker 5: health research has been, without question, the strongest in the world, 628 00:39:53,000 --> 00:39:55,600 Speaker 5: and it's hard to believe that if we have four 629 00:39:55,680 --> 00:39:58,800 Speaker 5: years of continued cutting that it will bear any semblance 630 00:39:58,840 --> 00:39:59,440 Speaker 5: of what it was. 631 00:39:59,640 --> 00:40:03,439 Speaker 2: Thanks much, Harry. That's healthcare attorney Harry Nelson, and that's 632 00:40:03,480 --> 00:40:06,080 Speaker 2: it for this edition of The Bloomberg Law Show. Remember 633 00:40:06,120 --> 00:40:08,200 Speaker 2: you can always get the latest legal news on our 634 00:40:08,239 --> 00:40:12,400 Speaker 2: Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify, 635 00:40:12,560 --> 00:40:17,600 Speaker 2: and at www dot Bloomberg dot com, slash podcast Slash Law, 636 00:40:18,000 --> 00:40:20,600 Speaker 2: and remember to tune into The Bloomberg Law Show every 637 00:40:20,640 --> 00:40:24,560 Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso 638 00:40:24,680 --> 00:40:26,280 Speaker 2: and you're listening to Bloomberg