Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2: Transgender people have been serving openly in the military for
Speaker 2: nearly a decade, but this week the Supreme Court said
Speaker 2: that President Trump could begin executing his ban on transgender
Speaker 2: military service. The conservatives on the court, over the descents
Speaker 2: of the three liberal justices, have paused a federal judges
Speaker 2: order blocking the ban, allowing the Trump administration to start
Speaker 2: discharging thousands of transgender service members, including experienced, decorated officers
Speaker 2: who've served openly for years. Defense Secretary Pete Hegseth said
Speaker 2: the military is leaving wokeness and weakness behind.
Speaker 3: No more pronouns, no more climate change obsession, no more
Speaker 3: emergency vaccine mandates, no more dudes in dresses. We're done
Speaker 3: with that.
Speaker 2: The lead plaintiff in the case is Emily Shilling, a
Speaker 2: Navy commander in combat pilot with nearly twenty years of
Speaker 2: service who's flown more than sixty combat missions in both
Speaker 2: the Afghanistan and Iraq wars. My guest is constitutional law
Speaker 2: expert David super, a professor at Georgetown Law. This is
Speaker 2: a one paragraph order, so we have no idea what
Speaker 2: their reasoning was. We just know that the three liberal
Speaker 2: justices dissented. What's your take on this decision.
Speaker 4: I think it's disappointing because the plaintiffs made a compelling case.
Speaker 4: This looks like a classic equal protection claim. The executive order,
Speaker 4: as plainiffs say, is dripping with consent or transgender people.
Speaker 4: So this is big a treat not military preparedness, and
Speaker 4: I would have hoped the Court would have treated it accordingly.
Speaker 4: But that doesn't mean that they've resolved on the merits.
Speaker 2: A federal judge in Washington State had blocked the ban.
Speaker 2: Actually two federal judges have blocked it. Judge Benjamin Settle said,
Speaker 2: it's not an especially close question. Will you tell us
Speaker 2: about the claims of the transgender troops in this case?
Speaker 4: There, I think most central claim is that they're being
Speaker 4: denied equal protection of the law. The Supreme Court is
Speaker 4: long held that the Fifth Amendment's requirement of due process
Speaker 4: implicates equal protection of the law, and that the federal
Speaker 4: government may not deny people equal protection, particularly if it
Speaker 4: is discriminating on the basis of a historically sensitive category.
Speaker 4: The soldiers are alleging that they're being discriminated against both
Speaker 4: because of sex and because of their transgender status, and
Speaker 4: that the government has nowhere near enough adequate justification for doing.
Speaker 2: This is a one paragraph order, so we have no
Speaker 2: idea what their reasoning was. We just know that the
Speaker 2: three liberal justices dissented. But in a case like this,
Speaker 2: shouldn't they have allowed the status quo to remain in place.
Speaker 2: Now the Trump administration is going to be able to
Speaker 2: discharge thousands of troops.
Speaker 4: That certainly would be the usual practice and the practice
Speaker 4: the Court has insisted on in many cases involving the
Speaker 4: Biden administration, where they prohibited the change from taking place
Speaker 4: until it was properly litigated. This opinion from the District
Speaker 4: Court in Washington is quite long, quite detailed, quite careful.
Speaker 4: You can agree with it or not. That it is
Speaker 4: certainly not a casual opinion, and one would expect that
Speaker 4: it would stand and preserve the status quo unless there
Speaker 4: was a compelling reason otherwise. It's disappointing that the Supreme
Speaker 4: Court was unable or unwilling to state any compelling reason
Speaker 4: for this change of the status quo.
Speaker 2: At the Supreme Court, what the Trump administration argue was
Speaker 2: that judges are required to show substantial deference to the
Speaker 2: Defense Department's judgment on military issues, even though the lower
Speaker 2: courts didn't find any backup for the Trump administration's claims
Speaker 2: that the presence of transgender people in the armed services
Speaker 2: undermines military effectiveness. Do you think that deference is the
Speaker 2: main reason why the Supreme Court decided to lift the injunction?
Speaker 4: Only suspect it is. The President has been asking for
Speaker 4: deference on many military and foreign affairs matters. The Court
Speaker 4: denied him that deference on his efforts to use the
Speaker 4: Alien Enemies Act. And my guess is the the Court
Speaker 4: trying to balance the scales in that regard.
Speaker 2: And as far as whether irreparable injury will be suffered,
Speaker 2: the order requires the transgender troops to voluntarily separate from
Speaker 2: the military or face quote involuntary separation, which is a
Speaker 2: stain on their records that could deny them veterans' benefits,
Speaker 2: So that scenario seems like irreparable injury.
Speaker 4: In principle, the administration could be ordered to restore their
Speaker 4: prior status if it ultimately loses this litigation. But the
Speaker 4: whole point of irreparable injury is that litigants are forced
Speaker 4: to suffer circumstances that can't be fully corrected, and in
Speaker 4: the best case scenario, having one's military service interrupted, having
Speaker 4: to gamble ones the a benefits away. All of that
Speaker 4: is classic irrepriabend.
Speaker 2: In Chump's first term, the Supreme Court allowed an earlier
Speaker 2: transgender military band to take effect, but that first ban
Speaker 2: exempted current troops, so it was more like a ban
Speaker 2: on enlistment. This goes further because it's going to allow
Speaker 2: them to discharge people who are currently serving. I mean,
Speaker 2: the lead plaintiff is a decorated Navy pilot with over
Speaker 2: sixty combat missions.
Speaker 4: Yes, this is very different than what we saw before,
Speaker 4: and that's I think the core of what the lower
Speaker 4: court found is that there simply was no evidence to
Speaker 4: support this. If the government had an important reason for
Speaker 4: an action, then deference would owe, and the lower court
Speaker 4: firmly upheld that. But it found that this was not
Speaker 4: a military judgment but a political judgment by the president
Speaker 4: that the Secretary of Defense carried out without gathering any
Speaker 4: evidence that these people are not able to serve their
Speaker 4: country effectively. And what's striking about the plaintiffs in this
Speaker 4: case is that we know a lot about them. They've
Speaker 4: been serving, they've been performing, and if they weren't, they
Speaker 4: could certainly be thrown out on an individual basis. But
Speaker 4: throwing them out on the basis of prejudice when we
Speaker 4: have ample evidence that they're effective soldiers and service people
Speaker 4: is disturbing and it's ignorant.
Speaker 2: I'm surprised that one of the three liberals didn't write
Speaker 2: a descent.
Speaker 5: Are you not?
Speaker 4: Necessarily if the liberals write a descent, then either the
Speaker 4: majority or some justice in the majority write an opinion
Speaker 4: defending what was done, and that would tend to lock
Speaker 4: in positions. This is such a disturbing and difficult to
Speaker 4: justify action that I think the liberals may have decided
Speaker 4: that it's best that no one put pen to paper
Speaker 4: any more than necessary right now, and hope that this
Speaker 4: can be reversed when it's heard on the errants tell me.
Speaker 2: What happens now. So this was about the order from
Speaker 2: the judge in Washington State. A judge in Washington, DC
Speaker 2: has also blocked the policy nationwide, and the Court of
Speaker 2: Appeals for the DC Circuit put that on hold temporarily
Speaker 2: while it heard oral arguments. I mean, how does that
Speaker 2: case work out when you have the Supreme Court lifting
Speaker 2: the injunction of the Washington State Judge.
Speaker 4: That's precisely why the absence of opinions is so significant
Speaker 4: and so telling here. They're going to be oral arguments
Speaker 4: in the Ninth Circuit and the DC Circuit. Panels in
Speaker 4: each of those courts will write opinions about this, and
Speaker 4: it will almost certainly come back to the Supreme Court
Speaker 4: on the merits. So it's really wide open. There are
Speaker 4: many grounds for denying a stay or granting a stay,
Speaker 4: and precisely because the Court didn't write an opinion, we
Speaker 4: don't know which of those it is. It could be
Speaker 4: something as technical as concerns about the standing of plainiffs
Speaker 4: or concerned about whether they made a proper demonstration of
Speaker 4: irreparable injury. So there's nothing about this action that prejudges
Speaker 4: the merits. They have lifted injunctions in other cases saying
Speaker 4: we don't think the plaintiffs are likely to prevail on
Speaker 4: the merits. They didn't say that here.
Speaker 2: So if this could come back to the Court and
Speaker 2: the justices could have a different opinion.
Speaker 4: Well it would come back to the Court in a
Speaker 4: different form, and they could very well be inclined on
Speaker 4: the merit to find for the plaintiffs, even if they
Speaker 4: didn't think an injunction pending litigation was appropriate.
Speaker 2: As you know, the Supreme Court heard a major transgender
Speaker 2: rights case in December over Tennessee's ban on gender affirming
Speaker 2: medical care for transgender miners. It did seem like the
Speaker 2: justices we're going to uphold that ban. I mean, together
Speaker 2: with this, does it show hostility towards transgender rights?
Speaker 4: These are different cases. The Supreme Court in Bosstok a
Speaker 4: few years ago held that the prohibition on discrimination on
Speaker 4: the base of sexts in Title seven of the Civil
Speaker 4: Rights Act is applicable to gay, lesbian, and transgender people.
Speaker 4: So it has done much of the analytical heavy lifting
Speaker 4: required to understand the rights of trans people. The Tennessee case,
Speaker 4: we obviously don't know how it'll be resolved, but that's
Speaker 4: a much narrower set of restrictions and justified in ways
Speaker 4: that are particular to those I hope the Court strikes
Speaker 4: down the Tennessee law, but if it doesn't, I don't
Speaker 4: think that tells you a great deal about how any
Speaker 4: non medical cases would be decided.
Speaker 2: I also want to ask you about a controversial comment
Speaker 2: by President Trump on Meet the Press on Sunday, don't
Speaker 2: you need to uphold the Constitution of the United States's press.
Speaker 2: I don't know.
Speaker 4: I have to respond by saying again, I have brilliant
Speaker 4: lawyers that work for me, and they are going to
Speaker 4: obviously follow what the Supreme Court said.
Speaker 2: I mean, in the past he has talked about his
Speaker 2: Article two powers under the Constitution.
Speaker 4: Well, the Constitution has many things in it. It has
Speaker 4: articles which I'm sure he feels the need to uphold.
Speaker 4: Then those pesky Article one and Article three and Bill
Speaker 4: of Rights. Perhaps he's less enthusiastic about those. I think
Speaker 4: that the people that need to hear his remarks on
Speaker 4: Sunday are the Supreme Court, and the Supreme Court has,
Speaker 4: in a variety of ways all spring been kicking the
Speaker 4: can down the road and hoping the administration will come
Speaker 4: around to acting lawfully. Arguably, the action we were discussing
Speaker 4: concerning the transgender ban in the military is another example
Speaker 4: of the court kicking things down the road. But a
Speaker 4: president who has harshly criticized judges, called some judges that
Speaker 4: he appointed communists, and has expressed great indifference about whether
Speaker 4: to comply with Supreme Court decrees, and it's not complied
Speaker 4: with several Supreme Court at lower court decrees is not
Speaker 4: going to voluntarily change his too, and the Supreme Court
Speaker 4: is going to have to decide whether they are going
Speaker 4: to insist upon compliance with the law.
Speaker 2: They'll certainly have opportunities to do that considering all the
Speaker 2: emergency petitions from the Trump administration. Thanks so much, David.
Speaker 2: That's Professor David super of Georgetown Law. Coming up next.
Speaker 2: Los Angeles federal prosecutors resign after the US Attorney gives
Speaker 2: a plea deal to a convicted felon. This is Bloomberg to.
Speaker 4: The defendant, Please rise and face the jury. What is
Speaker 4: your verdict? We find it?
Speaker 5: Defendent guilty is charged.
Speaker 2: The next step after a jury finds a defendant guilty
Speaker 2: is sentencing by the judge. But in a completely unorthodox move,
Speaker 2: the new US Attorney in Los Angeles is stepping in
Speaker 2: trying to stop the set of a convicted felon and
Speaker 2: moving to strike the jury's verdict. After a three day trial,
Speaker 2: a jury convicted former La County Sheriff's deputy Trevor Kirk
Speaker 2: of a felony for using excessive force when he assaulted
Speaker 2: a black woman outside a supermarket two years ago, throwing
Speaker 2: her to the ground, holding her down, and pepper spraying
Speaker 2: her while responding to a reported robbery. He's facing a
Speaker 2: ten year prison sentence for that conviction, but now, in
Speaker 2: an extraordinary move, US Attorney Bill Esseli is giving Kirk
Speaker 2: a plea deal and asking the trial judge to throw
Speaker 2: out the jury's verdict. Joining me is former federal prosecutor
Speaker 2: Jimmy Garoule, a professor at Notre Dame Law School. So, Jimmy,
Speaker 2: this former sheriff's deputy, is supposed to be sentenced this month,
Speaker 2: facing ten years for the felony conviction, and then suddenly
Speaker 2: the new US attorney comes in and gives him a
Speaker 2: deal to please guilty to a misdemeanor, with the government
Speaker 2: recommending a year's probation and asking the judge to strike
Speaker 2: the jury's finding that he injured his victim, which made
Speaker 2: it a felony.
Speaker 1: Well, it's an extraordinary action and it doesn't appear to
Speaker 1: be justified based on the facts or the law. And
Speaker 1: when I say that, what I mean is that if
Speaker 1: the claim was that he had not received a fair trial,
Speaker 1: well that's the purpose of a direct appeal. The defendant
Speaker 1: would appeal the conviction and highlight the heirs or alleged
Speaker 1: airs that were conducted during the jury trial. But there
Speaker 1: doesn't appear to be any allegation by the state or
Speaker 1: the defendant that his trial was not fair, did not
Speaker 1: comport with due process of law. Alternatively, if the claim is, oh,
Speaker 1: we have newly discovered evidence that proves his innocence, well
Speaker 1: there's a whole set of post conviction procedures that deal
Speaker 1: with that process to petition the court through a petition
Speaker 1: for post conviction relief to vacate the conviction. And there's
Speaker 1: no claims or allegations made to that effect that, oh,
Speaker 1: you know, he's actually innocent and we just learned after
Speaker 1: the conviction of this new evidence that proves his innocence.
Speaker 1: And so then the question is, well, what is a justification.
Speaker 1: What's changed? What's a justification for this extraordinary action basically
Speaker 1: to override the verdict of the jury. And it appears
Speaker 1: that it's simply that there's been a change of administration.
Speaker 1: There's a new US attorney, and he was prosecuted under
Speaker 1: the previous Biden administration. At least the initial indictment was
Speaker 1: brought at that time, and the charges were filed and
Speaker 1: the new sheriff in town wants to undo what the
Speaker 1: jury did, which suggests me that the motivation or justification
Speaker 1: is purely political.
Speaker 2: The judge in the case denied emotion from the defense
Speaker 2: for a quitt last month and said that Kirk acted
Speaker 2: aggressively towards the woman from the outset, and then the
Speaker 2: footage of the incident was sufficient evidence for a jury
Speaker 2: to find that he'd had used objectively unreasonable force.
Speaker 1: Yeah, so as a matter of fact, you know that
Speaker 1: the court is finding that there was sufficient evidence presented
Speaker 1: a trial to justify the case, and as a result,
Speaker 1: the defendant received the full panoply of due process protections.
Speaker 1: I mean, he was represented by counsel. Prosecution had to
Speaker 1: prove his guilt beyond a reasonable doubt, the jury had
Speaker 1: to find him guilty unanimously. And so there again does
Speaker 1: not appear to be any factual basis justification or legal
Speaker 1: justification for overturning the conviction. And what it suggests to
Speaker 1: me is that this is another example of the Trump
Speaker 1: administration kind of ignoring or evading the rule of law
Speaker 1: in the case of undocumented immigrants. In the claim is well,
Speaker 1: they're not entitled to do process. In this particular case,
Speaker 1: with respect to Deputy Trevor Kirk, he received full due process,
Speaker 1: but the administration, the Trump administration, didn't like the result.
Speaker 1: And because they didn't like the result, then they're seeking
Speaker 1: to somehow vacate the jury conviction, which I think undermines
Speaker 1: the rule of law and undermines the public's confidence in
Speaker 1: the criminal justice system and the validity of convictions.
Speaker 2: Besides that, for federal prosecutors who handle the case, including
Speaker 2: the chief of the Public Corruption and Civil Rights Section,
Speaker 2: refuse to sign the plea agreement and withdrew from the case.
Speaker 2: And then three of them resigned.
Speaker 1: Yeah, they stepped down, I mean, which is an expression
Speaker 1: of their disagreement with this result and their perception understanding
Speaker 1: that this was just an unfair, unjustified action by their
Speaker 1: supervisor and again is not justified by any legal principle
Speaker 1: and any legal president, any legal authority. And you know,
Speaker 1: there's kind of a parallel here, I mean with respective
Speaker 1: plea bargains. For example, if a defendant enters into a
Speaker 1: plea bargain, he may withdraw the plea bargain after the fact,
Speaker 1: but only based upon a finding of by the court
Speaker 1: that withdrawing the Guilly plea would be in the interests
Speaker 1: of justice. And so what's the standard here if the
Speaker 1: judges ultimately to decide whether or not a valid jury
Speaker 1: verdict should be overridden for political considerations. I mean, that
Speaker 1: doesn't strike as advancing the interests of justice. In fact,
Speaker 1: it's just the opposite. It's ignoring justice. Justice was done
Speaker 1: in this case. And the absence again of any claims
Speaker 1: of wrongdoing, unfair trial, and effective assistance accounts any of
Speaker 1: those types of legal arguments. This was a valid conviction
Speaker 1: and it shouldn't be ignored and disregarded by the Department
Speaker 1: of Justice, apparently the only reason being that they just
Speaker 1: didn't like the end result.
Speaker 2: Yeah. Well, there was sort of a social media campaign
Speaker 2: of support for Kirk, and a spokesperson for the LA
Speaker 2: Sheriff's Professional Association wrote a letter to Trump urging him
Speaker 2: to intervene before the case went to trial.
Speaker 1: That's the political reason. That was a political influence that
Speaker 1: apparently caused the US attorneys to seek to override the
Speaker 1: jury's conviction. And that's not a legitimate basis. I mean,
Speaker 1: conviction should be based on the facts and the evidence,
Speaker 1: not on issues political influence political affiliation with one party
Speaker 1: or another. That's not democracy in the United States. That's
Speaker 1: not the way democracy works in this country. This type
Speaker 1: of outcome is going to serve to undermine the public's
Speaker 1: confidence in the rule of law and the criminal justice system.
Speaker 1: And they're going to say, well, how come this guy
Speaker 1: got such favorable treatment and resolved? What about the other guy?
Speaker 1: You know, what about somebody who wasn't a political favorite,
Speaker 1: What about someone who wasn't a law enforcement officer, what
Speaker 1: about someone who's an ordinary citizen. Would the ordinary citizen
Speaker 1: receive this type of outcome a guilty verdict being overturned
Speaker 1: for political reasons highly unlikely?
Speaker 2: And why should I serve on a jury if you're
Speaker 2: going to take my verdict in my time exactly?
Speaker 1: I mean, it has so many negative, corrupting implications. I'm
Speaker 1: really hopeful that the judge rejects this motion to withdraw
Speaker 1: the guilty vertict and permit Kirk to plead gilly to
Speaker 1: a misdemeanor. I mean, he's convicted of a felony and
Speaker 1: now they want him to plead to a misdemeanor and
Speaker 1: then they're going to give him probation. It's just shocking.
Speaker 1: It's shocking. It's shocking action by the Department of Justice.
Speaker 2: Is the final decision the judges?
Speaker 1: Well, it's a good question, because I think it's such
Speaker 1: an extraordinary action. I really strain to come up with
Speaker 1: the legal authority. What's the legal authority for the judge,
Speaker 1: the trial judge or presiding judge to vacate a valid
Speaker 1: jury conviction, And I'm not aware of any I'm not
Speaker 1: aware of any statute. I'm not aware of any case
Speaker 1: precedent that would afford the trial judge to that authority.
Speaker 1: So that's clearly an issue. The problem here is is
Speaker 1: that who's going to appeal? I mean, if the judge
Speaker 1: does this and vacates the jury conviction, who's going to
Speaker 1: appeal it? Because the parties are in agreement. The defense
Speaker 1: certainly would like this outcome, and the Prosecutor's office, US
Speaker 1: Attorney's Office is proposing this result, and so there would
Speaker 1: be no way to review judicially review the trial court's decision,
Speaker 1: and so I think it would be final.
Speaker 2: Also, if he's allowed to plead down to a misdemeanor,
Speaker 2: that means he could continue to work as a law
Speaker 2: enforcement officer, and he could retain his right to own
Speaker 2: a fire run.
Speaker 1: Yeah, I think that's part of it. I think that's
Speaker 1: part of the justification, at least from the US journeys
Speaker 1: of it. Oh, we don't want him to have the
Speaker 1: stigma of a felon and all of the implications that
Speaker 1: are associated with that, with being a convicted felon, you know,
Speaker 1: which again would prohibit him from possessing a firearm. So
Speaker 1: that's a federal crime for a felon to possess a firearm,
Speaker 1: and so he couldn't work in any capacity that would
Speaker 1: require him to carry a firearm. But you know, that's
Speaker 1: what happens to defendants every day. You know, thousands of
Speaker 1: defendants are convicted of felonies and that's one of the implications.
Speaker 1: They're prohibited from possessing a firearm. So what's so unique
Speaker 1: about this guy? Why does he get a pass? Why
Speaker 1: should he bemitted to avoid that consequence of a felony conviction?
Speaker 1: I can think of none other than political.
Speaker 2: It's reminiscent of all the federal prosecutors who are resigned
Speaker 2: when the Manhattan US Attorney's Office was told to drop
Speaker 2: the charges against New York City Mayor Eric Adams so
Speaker 2: that he could help the Trump administration in its immigration arrests.
Speaker 1: Right. I think it's another instance where the line prosecutors
Speaker 1: that are doing the heavy lifting in these cases are
Speaker 1: just outraged by the political influence that the Trump administration
Speaker 1: is having on the performance of their duties and obligations.
Speaker 1: You know, they know, and I know, having served as
Speaker 1: a former federal prosecutor, that these convictions should be based
Speaker 1: solely on the facts and the evidence, limited by the law,
Speaker 1: and they shouldn't be influenced by political actors, by political parties,
Speaker 1: by political administrations. That's not justice. That's not how democracy
Speaker 1: supposed to work and operate in the United States of America.
Speaker 1: But it is, and we're seeing it, and not simply
Speaker 1: one case, you know, the mayor at Eric Adams case,
Speaker 1: but you know, this is another incident where that's happened,
Speaker 1: and who knows if they will be more of these
Speaker 1: types of cases. And here in addition, you know, we're
Speaker 1: seeing you know, the Trump administration saying we want the
Speaker 1: Department of Justice, the Attorney General's a target this particular individual. Well,
Speaker 1: that's not how it works either. You don't go after
Speaker 1: individuals by name because of who they are. You go
Speaker 1: after individuals based upon what they did, what the facts are,
Speaker 1: what the evidence is, not on their political affiliation or
Speaker 1: their political opinion or actions that they taken that political
Speaker 1: party views unfavorably. That's not how justice should work in
Speaker 1: this country.
Speaker 2: US attorneys are political appointments. But do you think that
Speaker 2: Trump's picks are even more charged politically? I mean, he
Speaker 2: just withdrew the controversial nomination of Ed Martin to be
Speaker 2: the DC US Attorney.
Speaker 1: Well, I think the problem is is that we know
Speaker 1: that this particular presence that values loyalty, perhaps above all things, loyalty,
Speaker 1: and so whatever he wants done, he expects the persons
Speaker 1: that he has placed in those positions through political appointment
Speaker 1: presidential appointment, to do what he wants them to do,
Speaker 1: with no questions asking. I mean, when I was a prosecutor,
Speaker 1: I never ever was looking over my shoulder thinking, oh,
Speaker 1: I better not decide this matter this way, or take
Speaker 1: this particular action because of political concerns or political retaliation,
Speaker 1: or I'm going to be demoted if I do this
Speaker 1: or I do that. That never entered my mind. You know,
Speaker 1: the political implications, whether this would favor a political party,
Speaker 1: or disfavorite political party. Harma political party was never a
Speaker 1: consideration ever, and now it appears to be a consideration always.
Speaker 1: There's this kind of black cloud I think over federal
Speaker 1: prosecutors as to, oh, is there going to be retaliation
Speaker 1: if I do this right, take this particular action. And
Speaker 1: that's very chilling. That's very chilling. It's very disturbing, and
Speaker 1: it's not what one would expect to happen in a free,
Speaker 1: open democracy. That's what you'd expect and what we often
Speaker 1: see in countries that are run by authoritarian governments and
Speaker 1: authoritarian presidents.
Speaker 2: Can you think of any case even similar to what
Speaker 2: the US attorney is doing here or trying to do here.
Speaker 1: I can't stress enough just how shocking, how unprecedented it is.
Speaker 1: I mean, I've been at this. I was a prosecutor
Speaker 1: for nine years before I joined the law faculty here.
Speaker 1: I've been here for decades now. I cannot recall a
Speaker 1: federal case where this has happened where the prosecutors said, oh, oops,
Speaker 1: you know, yeah, we initiated this prosecution, we initiated the
Speaker 1: criminal charges, we advocated to the jury for conviction, and
Speaker 1: now we want that jury conviction to be vacated, not
Speaker 1: for anything that was done wrong at the trial or
Speaker 1: because of insufficient evidence or newly discovered evidence of proofs
Speaker 1: is then a now just because now the new sheriff
Speaker 1: in town doesn't like that result.
Speaker 2: Well, it'll be really interesting to see how the judge
Speaker 2: handles this in the sentencing. Thanks for joining me today, Jimmy.
Speaker 2: That's professor Jimmy Garoule of Notre Dame Law School. Up next,
Speaker 2: attorneys general sued the Department of Health and Human Services.
Speaker 2: This is Bloomberg.
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2: Twenty Democratic attorneys general are suing the US Department of
Speaker 2: Health and Human Services for firing health workers and cutting
Speaker 2: programs in a lawsuit filed on Monday. They're pushing for
Speaker 2: an injunction to prevent the quote unconstitutional and illegal dismantling
Speaker 2: of the AHHS, which they claim is already wreaking havoc
Speaker 2: on the health landscape. The lawsuit comes after a massive
Speaker 2: restructuring of the agency by Health Secretary Robert F. Kennedy.
Speaker 2: Junior healthcare attorney Harry Nelson, a partner at Leech Tishman
Speaker 2: Nelson Hardiman Harry in general. How has RFK Junior changed
Speaker 2: the department.
Speaker 5: There's been a pretty significant amount of changes. I think
Speaker 5: the biggest change has been over ten thousand employees layoffs
Speaker 5: since April, affecting nearly every major sub agency within the
Speaker 5: Department of Health and Human Services, including the Center for
Speaker 5: Disease Control, the FDA, the National Institute of Health, and others.
Speaker 5: So there's just a lot fewer personnel in place. As
Speaker 5: you mentioned, there's been a consolidation of twenty eight total
Speaker 5: sub agencies within Health and Human Services down to fifteen,
Speaker 5: with various mergers and eliminations, a number of closures of
Speaker 5: programs of public health programs. The FDA passed on a
Speaker 5: bird flu vaccine application due to some of the lab shutdowns.
Speaker 5: The Center for Disease Control halted measles testing despite a
Speaker 5: nationwide outbreak that we've been seeing. NIH has been suspending
Speaker 5: research trials. Those have been the major disruptions. There's been
Speaker 5: a few smaller ones. There was a specific Post nine
Speaker 5: to eleven program for first responders that has been interrupted
Speaker 5: because of staff shutdowns, and of course DOGE, the Department
Speaker 5: of Government Efficiency is like continuing to all of the
Speaker 5: above activities just streamlining organizationally getting rid of people, and
Speaker 5: you know, every day is bringing new changes.
Speaker 2: And tell us about the allegations in the lawsuit.
Speaker 5: Sure, so, twenty States, led by the New York Attorney
Speaker 5: General Laritia James, filed suit in Rhode Island, and they've
Speaker 5: essentially alleged that all of the actions we just described
Speaker 5: are illegal and they undermined the Department of Health and
Speaker 5: Human Services ability to fulfill its statutory obligations. So specifically,
Speaker 5: they all a violation of the Administrative Procedure Act, which
Speaker 5: are the rules by which government program changes happen so
Speaker 5: that there's notice and an opportunity to be heard with
Speaker 5: what rules are made, and where there's any changes, there's
Speaker 5: an allegation in the case of a violation of the
Speaker 5: separation of powers, that the executive branch has essentially stepped
Speaker 5: in and dismantled programs that were authorized specifically by Congress,
Speaker 5: invading Congress's authority. And there's violations that many of the
Speaker 5: specific laws related to public health are being violated, you know,
Speaker 5: like the first Responders example, where there's people out there
Speaker 5: stakeholders who are beneficiaries of these programs whose rights are
Speaker 5: being violated. So those are the primary legal theories in
Speaker 5: this case.
Speaker 2: Do they take aim at Channity's you know, larger public
Speaker 2: health agenda and you know, his criticisms of COVID and vaccines.
Speaker 5: All that, that is really not part of this case.
Speaker 5: I mean, this case is much more about the downsizing,
Speaker 5: the radical downsizing of this agency and the way that
Speaker 5: it proceeded, and not about rfk's specific idiosyncret views. And frankly,
Speaker 5: it's not clear to what extent his views are driving
Speaker 5: this because the behavior in many ways parallels what we
Speaker 5: see that same agency DOGE doing in other parts of
Speaker 5: the federal government. So in many ways it looks like
Speaker 5: a broader ideological disruption and downsizing of a federal agency
Speaker 5: rather than like rfkse particular disbelief in particular kinds of
Speaker 5: health programs.
Speaker 2: It follows other lawsuits that claim that the cuts violate
Speaker 2: the constitutions separation of powers and that basically they're taking
Speaker 2: away congresses sign off on these things and money already
Speaker 2: appropriated by Congress.
Speaker 5: Yeah, it really is the greatest test of constitutional powers
Speaker 5: and what the executive can do to essentially shut down
Speaker 5: all these programs that Congress authorized and established It's a
Speaker 5: fascinating moment in terms of constitutional principles and how far
Speaker 5: executive power can go.
Speaker 2: Last week, the Trump administration released a proposed budget which
Speaker 2: has a twenty six percent cut to the HS discretionary budget,
Speaker 2: but ask for five hundred million for Kennedy's Make America
Speaker 2: Healthy Again initiative. Let's say the proposed budget is approved
Speaker 2: by Congress. Does this suit and lose some of its
Speaker 2: power because Congress has decided to cut the budget for HHS.
Speaker 5: I think this case is much more about the process,
Speaker 5: you know again, about the administrative process by which things
Speaker 5: have proceeded, than about the actual funding changes. The funding
Speaker 5: changes that are proposed are certainly directionally the same as
Speaker 5: as some of these changes, but right now we're in
Speaker 5: an already funded environment where moneies have already been allocated
Speaker 5: and we're not talking about it. So the two things
Speaker 5: do go kind of handing gloves. But it's a slightly
Speaker 5: different issue because the money is authorized. Congress has made
Speaker 5: choices by VIR two of our previous budgets, and so
Speaker 5: if the twenty twenty six budget you know is inactive, frankly,
Speaker 5: it will be different cuts on the same trajectory and
Speaker 5: they'll have additional further impacts. But these are two different things.
Speaker 2: So there's also similar cases that try to block the
Speaker 2: termination of billions of dollars in grants awarded by federal
Speaker 2: health agencies in support of public health research. I keep
Speaker 2: hearing about cuts and funding to research. Is this like
Speaker 2: overblown or is it really a serious threat to research?
Speaker 1: Now?
Speaker 5: This is affecting our medical and public health reas search
Speaker 5: institutions across the board nationally. I believe in the twenty
Speaker 5: twenty six budget, the proposal is eighteen billion dollars less
Speaker 5: funding for biomedical research being conducted, but I think that
Speaker 5: might be biomedical research and global health initiatives. But we're
Speaker 5: talking a massive scale of reduction, assuming that it's going
Speaker 5: to be consistent with what our f case indicated, we
Speaker 5: can expect the cuts to come from new drugs and
Speaker 5: more specialized health conditions, because our case been promising that
Speaker 5: there's going to be a greater focus on chronic conditions
Speaker 5: where there is a theory more thang for the buck
Speaker 5: in terms of the number of people's affected, and a
Speaker 5: focus on more disease prevention of things like diabetes. So
Speaker 5: I do think that this is a profound shift for
Speaker 5: the pharmaceutical industry, for all of the universities and all
Speaker 5: of the academic researchers at our health systems around the country,
Speaker 5: like radical changes in labs being shut down, projects being shuttered,
Speaker 5: and just a massive, massive disruption.
Speaker 2: Thinking about the USAID, which was the first agency to
Speaker 2: be dismantled basically by Doge. And in those cases, even
Speaker 2: though the judges said that, you know, you can't dismantle
Speaker 2: an agency completely, but it was already too late by
Speaker 2: the time the judges orders came out. I mean, people
Speaker 2: had been fired already and things had already started to disintegrate.
Speaker 2: Some m the same thing happened here. I mean, he's
Speaker 2: already done the Damage's.
Speaker 5: A fair question. I mean a lot of the researchers
Speaker 5: are people who have jobs. For example, many people who
Speaker 5: are like they might be researching cancer and also treating
Speaker 5: in a local hospital. So in the case of a
Speaker 5: lot of our research institutions, you have different categories of
Speaker 5: researchers in different places who are going to be affected differently. Obviously,
Speaker 5: people who are literally within the Nationalists to doue of
Speaker 5: health are going to have to, you know, if their
Speaker 5: positions are cutters looking for new jobs. But what I'm
Speaker 5: hearing is a lot of uncertainty for doctors who you know,
Speaker 5: who were including research activities, you know, in their priorities.
Speaker 5: I think the cut represent like something like one third
Speaker 5: of the total budget of the Nationalists to due to health,
Speaker 5: and again it's going to be interesting to see where
Speaker 5: it hits. Single biggest category, of course the United States
Speaker 5: is cancer research. Enormous research dollars going into mental health,
Speaker 5: infectious disease, and it's not clear that any of those
Speaker 5: areas are going to be priorities. You know, we have
Speaker 5: billions of dollars going into HIV AIDS research, various rare diseases, aging,
Speaker 5: It's not clear where any of it's going to go,
Speaker 5: and it can't be good for the advancement of public health.
Speaker 5: And in many ways it does look like the dismantling
Speaker 5: of something that has been sort of a real jewel
Speaker 5: in the American public health system.
Speaker 2: Obviously, they haven't filed a recent response yet, and I
Speaker 2: don't think he's even said anything about the suit. I mean,
Speaker 2: what might their possible defense be.
Speaker 5: I mean, it's really a question of how far executive
Speaker 5: authority goes The Department of Health and Human Services is
Speaker 5: part of the executive brands. So in theory, the administration
Speaker 5: has the power. Even though Congress authorizes the funding and
Speaker 5: allocates it, the administration gets to decide how the agency
Speaker 5: is working. And I think what we're going to hear
Speaker 5: from this administration is that this agency was floated, that
Speaker 5: it was too big, too inefficient, that there was no accountability,
Speaker 5: and that they are essentially taking a painful step that
Speaker 5: reduces red tape and kind of forces federal health policy
Speaker 5: to be improved. That's the argument they're making. I'm not
Speaker 5: endorsing it by forcing more action into the states and
Speaker 5: in the communities rather than with the centralized federal mandate.
Speaker 5: So those are the argument they're going to make. They're
Speaker 5: going to argue about and about budget deficits. But it'll
Speaker 5: be interesting to see how the court treat this one,
Speaker 5: and it would not surprise me if this ends up
Speaker 5: in the Screme Court.
Speaker 2: Speaking about RFK Junior in general, he had those very controversial,
Speaker 2: tough hearings for his nomination, and you know, because he's
Speaker 2: a vaccine skeptic. To put it mildly, he made promises
Speaker 2: about not disturbing vaccines, but has he already started to
Speaker 2: undermine vaccines in different ways.
Speaker 5: Absolutely, there's definitely been i would say, a quiet rollback
Speaker 5: on numerous vaccines. And we're already seeing, you know, examples
Speaker 5: of the importance vaccines with the musile outbreaks that are
Speaker 5: happening in Texas in the other parts of the country.
Speaker 5: But we're already seeing essentially a vaccine opportunities foregone, like
Speaker 5: with the bird flu, based on lack of personnel. And
Speaker 5: I do think it's happening sort of in a lot
Speaker 5: of quiet steps rather than in one self swoop. I
Speaker 5: expect that will continue based on the not only URK,
Speaker 5: but the people around him, for whom this is really
Speaker 5: you know, a kind of passionate point our K has
Speaker 5: a normous power as the head of the agency, and
Speaker 5: what we're seeing is in a number of key public
Speaker 5: health positions are going to people who are really passionate
Speaker 5: ideologue for all of the positions that he's about. And
Speaker 5: so we're seeing a number of anti vax people in
Speaker 5: leadership roles, and obviously that that doesn't bode well for
Speaker 5: getting us ready for the vaccines we're going to need
Speaker 5: in the coming years.
Speaker 2: Yeah, I mean the cuts in research funding are particularly concerning.
Speaker 5: It's radical, and it feels like the deliberate sabotage of
Speaker 5: our public health infrastructure and an illegal power graph without
Speaker 5: any plan of how this impacts anybody. You know, our
Speaker 5: health research has been, without question, the strongest in the world,
Speaker 5: and it's hard to believe that if we have four
Speaker 5: years of continued cutting that it will bear any semblance
Speaker 5: of what it was.
Speaker 2: Thanks much, Harry. That's healthcare attorney Harry Nelson, and that's
Speaker 2: it for this edition of The Bloomberg Law Show. Remember
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