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

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Speaker 2: Yesterday, on President's Day, there were a series of protests

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Speaker 2: in major cities and state capitals across the country against

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Speaker 2: the purge of the federal bureaucracy by President Donald Trump

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Speaker 2: and billionaire Elon Musk. The rallies followed a series of

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Speaker 2: Trump executive orders and came just days after the layoffs

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Speaker 2: of thousands of federal workers inside departments focused on public health, education,

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Speaker 2: veterans affairs, and human services. In some cases, Musk's team

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Speaker 2: is trying to shutter entire agencies, including the Department of

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Speaker 2: Education and the US Consumer Financial Protection Bureau, with Trump's blessing,

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Speaker 2: but without Congressional approval, Thus the chance of where is

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Speaker 2: Congress and do your job? Trump's actions have drawn dozens

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Speaker 2: of lawsuits challenging the moves as unconstitutional and an unlawful

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Speaker 2: executive power grab. Joining me is constitutional law expert Trevor Morrison,

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Speaker 2: a professor at NYU Law School. Trump is issuing executive

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Speaker 2: order after executive order, covering all kinds of areas, from

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Speaker 2: immigration to federal workers. Why does flurry of executive orders?

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Speaker 3: Well, I think it's not unusual for there to be

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Speaker 3: a flurry of executive orders signed by a new president.

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Speaker 3: President Obama when he was born in signed just in

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Speaker 3: the first few days of his first term a number

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Speaker 3: of executive orders across a wide range subject areas, including

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Speaker 3: guantanam obey and enemy combatants in all manner of other issues,

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Speaker 3: and so that by itself is not surprising, although even

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Speaker 3: by those historical standards, the total volume of executive way

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Speaker 3: that Trump is signed is very large. But it's not

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Speaker 3: so much that there are all these executive orders. It's

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Speaker 3: the content of them, and it's certain themes that are

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Speaker 3: recurring across these executive orders, really almost without regard to

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Speaker 3: the subject matter, and a key one there. This isn't

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Speaker 3: true for all of the executive orders, but it's true

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Speaker 3: for many of them that they involve assertions of presidential

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Speaker 3: power that cannot possibly be reconciled with binding federal statutory law.

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Speaker 3: So laws that Congress has passed in the area. The

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Speaker 3: president's asserting a kind of constitutional authority to take some action,

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Speaker 3: or just a general prerogative to take some kind of action,

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Speaker 3: and frequently isn't even bothering to acknowledge the statute that

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Speaker 3: his action would violate or conflict with let alone attempt

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Speaker 3: to justify why the president could act in the face

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Speaker 3: of those contrary commands. And that's the assertion of power

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Speaker 3: that I think is so breathtaking, frankly, and is being

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Speaker 3: challenged in multiple different lawsuits right now. Of course. But

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Speaker 3: you can sign executive orders and put them out there

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Speaker 3: a lot more quickly than courts can respond and evaluate

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Speaker 3: their legality, so that response will take time, whatever it is.

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Speaker 2: On the first day, he decided to ignore the law

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Speaker 2: banning TikTok. That I mean, so that was so clear,

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Speaker 2: But Congress doesn't object.

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Speaker 3: Well, that's part of the problem here. Yes, you're right.

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Speaker 3: A statute that had just been evaluated by the Supreme

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Speaker 3: Court the week before and upheld by a unanimous court,

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Speaker 3: a statute essentially requiring that TikTok cease operations in the

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Speaker 3: United States unless its parent companies sells its interest in

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Speaker 3: TikTok to an entity that's not subject to being controlled

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Speaker 3: by the Chinese government. That's what the law requires. Everyone

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Speaker 3: agrees that the law took effect right before Trump was inaugurated,

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Speaker 3: and then Trump just by executive order, announced that he's

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Speaker 3: going to suspend the effectiveness of the law for I

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Speaker 3: think seventy five days. The President does not have the

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Speaker 3: authority to do that, and there's not even really an

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Speaker 3: attempt in the Executive Order to give a theory for

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Speaker 3: how anyone could think that the president has the authority

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Speaker 3: to do that. All he says is, I'm the president.

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Speaker 3: I'm responsible for national security. There may be other ways

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Speaker 3: to deal with this issue without having to suspend TikTok's

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Speaker 3: operation in the United States. I'd like to pursue those options,

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Speaker 3: including presumably to see if a buyer can be found,

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Speaker 3: and so I'm suspending operation of the law. He doesn't

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Speaker 3: even say that this is a matter of directing the

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Speaker 3: Attorney General to exercise some prosecutorial discretion in deciding whether

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Speaker 3: to enforce the law. We do understand that the executive branch,

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Speaker 3: ultimately the President, through the Justice Department, has some inherent

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Speaker 3: discretion when it comes to when and how to enforce

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Speaker 3: the law, but this EO goes way beyond that. He

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Speaker 3: actually directs the Attorney General to issue letters to the

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Speaker 3: various platforms that would platform take talk telling them that

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Speaker 3: to the extent they continue working with TikTok during this period,

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Speaker 3: they are not violating the law, when of course they

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Speaker 3: are violating the law, And so he has literally just

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Speaker 3: suspended the effectiveness of a statute or rewritten it, as

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Speaker 3: you say, that was on day one. There is no

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Speaker 3: legal theory on which that executive order can be viewed

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Speaker 3: to be legitimate. On the other hand, it hasn't yet

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Speaker 3: been challenged in court, and at this point I'm rather

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Speaker 3: doubtful that it will be challenged in court. So on

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Speaker 3: this one, he's liable to get away with it because,

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Speaker 3: as you say, Congress doesn't seem to have the will

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Speaker 3: to stand out for its own prerogatives in this area

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Speaker 3: and to insist that its laws be followed.

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Speaker 2: One executive order that has been challenged, and I believe

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Speaker 2: we're up to four judges who have blocked it, is

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Speaker 2: his order ending birthright citizenship.

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Speaker 3: Yeah, narrowing birthright citizenship. That's what he's purporting to do.

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Speaker 4: Yeah.

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Speaker 3: That one was guaranteed to be challenged in the courts,

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Speaker 3: and as you say, has been challenged in multiple lawsuits already,

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Speaker 3: and no judge who's looked at the issue has been

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Speaker 3: remotely sympathetic to the Trump administration's position, which is that

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Speaker 3: the Fourteenth Amendment in providing that all persons born in

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Speaker 3: the United States and subject to the jurisdiction thereof, shall

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Speaker 3: be citizens of the United States. His order to read

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Speaker 3: that constitutional language as excluding people born in the United

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Speaker 3: States to parents who entered the country unlawfully, or even

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Speaker 3: to parents who are in the country lawfully but on

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Speaker 3: a temporary basis, like on a student visa or a

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Speaker 3: work visa. There is no justification in our constitutional history

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Speaker 3: for that interpretation. It's contrary to Supreme Court precedent. It's

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Speaker 3: contrary to decades of government practice, Department of Justice practice,

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Speaker 3: and legal opinions issued by the Department of Justice. Again,

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Speaker 3: it's not just wrong in terms of its interpretation of

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Speaker 3: the fourteenth Amendment, but it conflicts with statutes that Congress

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Speaker 3: has passed recognize an entitlement to birthright citizenship that would

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Speaker 3: cover everyone born in the United States, with only very,

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Speaker 3: very narrow exceptions like children of diplomats where the diplomats

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Speaker 3: are here serving that foreign country in the United States,

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Speaker 3: or children of the members of an occupying army. These

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Speaker 3: are the narrow historical exceptions that are recognized, and Congress

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Speaker 3: has legislators who otherwise provide to confirm that if you're

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Speaker 3: born in the United States, you're entitled the citizenship without

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Speaker 3: regard to the legal status of your parents. Trump in

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Speaker 3: his executive order doesn't even really acknowledge the existence of

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Speaker 3: those statutes, certainly doesn't attempt to justify why he can

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Speaker 3: ignore them. And his constitutional theory of the fourteenth Amendment

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Speaker 3: is just wrong. And here, unlike the TikTok example, as

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Speaker 3: you mentioned, it's already been challenged in courts, and I

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Speaker 3: and many other observers expect him to continue to lose

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Speaker 3: on this issue in the federal courts up to and

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Speaker 3: probably including at the Supreme Court.

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Speaker 2: As you know, the legislature has the power of the purse.

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Speaker 2: When Trump froze federal funds, they also talked about getting

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Speaker 2: rid of which is something that he has campaigned on,

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Speaker 2: getting rid of the empowerment law. I mean, so this

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Speaker 2: would take it to the point where he's taken away

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Speaker 2: one of the legislature's prime prerogatives.

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Speaker 3: Yes, this is another important area. And you know, I

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Speaker 3: think to members of the public generally, this can just

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Speaker 3: sound like, you know, the Trump administration wanting to ensure

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Speaker 3: that taxpayer dollars are spent wisely and that waste is

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Speaker 3: eliminated within the federal government. And of course those are

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Speaker 3: all good and laudible goals, but in our constitutional system,

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Speaker 3: the president is not allowed to say, well, I'm just

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Speaker 3: going to identify abuse, or identify a part of it,

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Speaker 3: you know, an agency whose operations I don't like, and

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Speaker 3: just free spending for it altogether, as he's done for USAID,

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Speaker 3: or try to sort of dismantle an agency whose existence

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Speaker 3: has been provided for by Congress. On the spending issue

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Speaker 3: in particular, it seems that the Trump administration is trying

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Speaker 3: to assert a kind of general constitutional power of impoundment

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Speaker 3: that the president, as part of his executive power, can

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Speaker 3: just decide not to spend fund that have been appropriated

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Speaker 3: by Congress to be used in a particular area for

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Speaker 3: a particular purpose. And it's been recognized by executive branch

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Speaker 3: officials of both parties over decades that the president does

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Speaker 3: not have that authority. The idea has come up before,

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Speaker 3: and for example, John Roberts, Chief Justice John Roberts, when

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Speaker 3: he was serving in the Reagan White House, wrote a

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Speaker 3: memo confirming the consensus understanding that the president does not

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Speaker 3: have a general impoundment authority. Now whether a president could

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Speaker 3: decline to spend all of the dollars that Congress has

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Speaker 3: earmarked for a particular purpose ultimately comes down to the

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Speaker 3: particular statute where Congress did that ear marketing. Congress can

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Speaker 3: give the executive branch certain discretion, say up to x

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Speaker 3: amounts of dollars may be spent for the following purpose,

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Speaker 3: and that doesn't mean all of that amount must be spent,

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Speaker 3: But it really depends on how Congress has made these appropriations.

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Speaker 3: And again, so the litigation in this space is going

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Speaker 3: to end up looking kind of statute by statute at

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Speaker 3: the way the appropriations are structured. But the general theory

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Speaker 3: that the administration seems to be running on is one

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Speaker 3: that would just steamroll all of those statutory niceties and

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Speaker 3: assert a kind of general presidential prerogative. John Roberts didn't

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Speaker 3: think the president had that kind of prerogative. The chief

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Speaker 3: Justice before him, William Ranquist, when he was serving in

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Speaker 3: the Justice Department before he went to the Supreme Court,

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Speaker 3: wrote an opinion saying, the president doesn't have that kind

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Speaker 3: of prerogative, and I expect that position to be the

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Speaker 3: position of the courts in this area ultimately, which is

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Speaker 3: to say, I expect the Trump administration to lose in

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Speaker 3: its bid to assert a general impoundment authority.

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Speaker 2: Coming up next on the Bloomberg Law Show, I'll continue

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Speaker 2: this conversation with NYU Law School professor Trevor Morrison. What's

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Speaker 2: the risk that the administration might simply ignore court orders

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Speaker 2: or go against them? And when was the last time

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Speaker 2: we've seen this kind of a crisis. I'm June Grosso.

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Speaker 2: When you're listening to Bloomberg, I've been talking to n

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Speaker 2: YU Law School professor Trevor Morrison about President Donald Trump's

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Speaker 2: executive orders that have drawn dozens of lawsuits challenging the

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Speaker 2: moves as unconstitutional and unlawful executive power grabs. Trump is

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Speaker 2: already asking the Supreme Court to intervene to allow him

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Speaker 2: to fire the head of the independent US agency that

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Speaker 2: protects government whistleblowers. This court, you know, you mentioned Roberts,

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Speaker 2: but this court has several conservatives that are to the

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Speaker 2: right of Roberts. And we already saw in July how

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Speaker 2: they expanded the president's immunity from prosecution for acts within

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Speaker 2: his official duties in an opinion that most I mean

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Speaker 2: most people like talk to were shocked by that opinion.

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Speaker 3: Yes, I was among those who was quite dismayed by

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Speaker 3: to Justice Roberts's opinion in the immunity case. You know,

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Speaker 3: one can debate whether the outcome was justifiable. I tend

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Speaker 3: to think not. But much worse than that was the

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Speaker 3: particular way that Roberts sort of reasoned his way to

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Speaker 3: that outcome, and it contained in it a kind of

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Speaker 3: theory of exclusive presidential power that is now being in

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Speaker 3: vote by the Trump administration, not in any kind of

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Speaker 3: criminal immunity context, but in all these other areas where

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Speaker 3: executive power is being asserted. I don't think that there's

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Speaker 3: a majority of the Court that actually is prepared to

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Speaker 3: sort of apply the Trump immunity precedent as broadly as

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Speaker 3: the Trump administration is now trying to do. There may

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Speaker 3: be some votes on the Court, but I don't think

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Speaker 3: there's a majority for it. But in many ways, this

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Speaker 3: set of questions is a little bit of a problem

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Speaker 3: of the Court's own making. If the majority opinion in

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Speaker 3: the immunity case, even if it was going to reach

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Speaker 3: roughly the same outcome, had been written more carefully in

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Speaker 3: a way that was more tied to the courts existing

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Speaker 3: jurisprudence on the constitutional separation of powers. Then there would

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Speaker 3: be less mischief that could be made with the opinion

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Speaker 3: compared to what we're seeing what we're seeing now. But

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Speaker 3: you know, across this set of issue areas, many of

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Speaker 3: these issues are liable to end up not just in

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Speaker 3: the federal courts but before the Supreme Court, and the

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Speaker 3: Trump administration may win some, I think they're certainly going

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Speaker 3: to lose some. One of the big challenges here, though,

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Speaker 3: again is that you know, the President in a matter

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Speaker 3: of a couple of days, can sign executive orders and

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Speaker 3: then direct that action be taken consistent with those orders

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Speaker 3: across the executive branch and kind of change the facts

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Speaker 3: on the ground rather quickly. And then you know, it

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Speaker 3: will take time. Even if courts ultimately conclude that some

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Speaker 3: or even all of those actions are unlawful, it will

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Speaker 3: take a while for the courts to respond and to

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Speaker 3: try and rein in the administration. In the meantime, you know,

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Speaker 3: Trump presses forward, helped by figures like Elon Muskin, his

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Speaker 3: army of doge folks, and so that's a big part

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Speaker 3: of the challenge.

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Speaker 2: Here, and I mentioned this before, but you have Republicans

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Speaker 2: not only not objecting to what he's doing, but generally

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Speaker 2: supporting it. You had the Speaker of the House saying

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Speaker 2: that the courts should take a step back and let

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Speaker 2: things play out. So you're not going to find any

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Speaker 2: kind of resistance there is. The only resistance going to

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Speaker 2: be in lawsuits from outside groups or Democratic ags.

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Speaker 3: Well, I think if the Republican leadership in Congress were

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Speaker 3: better students of James Madison, they would understand that they

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Speaker 3: are in danger of abdicating a role that is Congress

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Speaker 3: is to check sort of abuse of executive authority. And

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Speaker 3: so you're right that a checking role that might have

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Speaker 3: been played by a more responsible Congress is not being played.

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Speaker 3: I'm not sure though, that that means that, you know,

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Speaker 3: everyone President Trump's copartisans in Congress will simply abdicate their

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Speaker 3: role or never raise any objection no matter what happens.

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Speaker 3: You know, something that's looming in the background. Here is

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Speaker 3: their reason to worry that the Trump administration might simply

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Speaker 3: ignore court orders on some of these issues if they

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Speaker 3: lose in court and you know, don't want to abide

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Speaker 3: by the court order. My colleague Richard piled Us at

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Speaker 3: NYU and I have published an op ed just a

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Speaker 3: few days ago sort of discussing what would happen in

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Speaker 3: that circumstance. Everyone agrees that that would quickly bring us

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Speaker 3: into a real constitutional crisis. I don't think, at least

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Speaker 3: the Republican leadership in Congress, you know, want the country

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Speaker 3: to be brought to that brank and so I suspect

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Speaker 3: actually that there would be quite a number of voices

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Speaker 3: from across the political spectrum saying that, you know, you

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Speaker 3: can appeal a judgment that you don't like, and maybe

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Speaker 3: the appellate court will reverse what the trial court did,

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Speaker 3: but the court orders ultimately need to be followed. And

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Speaker 3: there were even some Republicans in Congress who were taking

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Speaker 3: that position last week in response to things that were

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Speaker 3: being said by different members of the Trump administration that

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Speaker 3: seemed to be kind of testing the waters for the

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Speaker 3: idea that maybe it would be legitimate to ignore a

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Speaker 3: court order. So on some issues, I think there might

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Speaker 3: be some pushback. And beyond Congress, of course, there's the

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Speaker 3: American people and maybe in particular the business community. So

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Speaker 3: if the Trump administration started ignoring court orders, I think

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Speaker 3: that could quite quickly bring a lot of turmoil in

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Speaker 3: the market and in the economy more generally, because the

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Speaker 3: reliability of an independent judiciary to enforce property and contract rights,

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Speaker 3: for example, it could quickly be thrown into question if

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Speaker 3: the administration started taking a position that they could simply

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Speaker 3: ignore court orders not to their liking. And I don't

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Speaker 3: think ultimately that the Trump administration wants to court that

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Speaker 3: kind of trouble with the public markets.

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Speaker 2: Trump did say last week and the Oval Office that

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Speaker 2: he always obeys court orders. Of course, in his personal

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Speaker 2: life we've seen that he doesn't always obey court orders.

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Speaker 2: But the Press secretary, you know, they make these statements

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Speaker 2: about Article two of the Constitution, and Trump has said

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Speaker 2: this too, and sort of echoes Richard Nixon that he

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Speaker 2: can do whatever he wants under Article two of the Constitution.

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Speaker 2: And there's this idea among his people that he has,

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Speaker 2: you know, exclusive powers over budget, personnel, whatever in the

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Speaker 2: executive branch.

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Speaker 3: Right. Yeah, I agree with you. That's and part of

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Speaker 3: that argument is being advanced, in part by relying on

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Speaker 3: that immunity decision from last summer that we were just

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Speaker 3: speaking about and reading certain lines in Chief Justice Roberts's

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Speaker 3: majority opinion. Very very expansively right, So on this expansive understanding,

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Speaker 3: you know, if it prevailed, then you know, the courts

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Speaker 3: would be endorsing this broad theory of sweeping executive power

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Speaker 3: that is almost uncheckable by law. I don't think the

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Speaker 3: courts ultimately are going to endorse the broadest version of

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Speaker 3: that theory across all of the subject matter areas that

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Speaker 3: Trump has been acting in anyway. The question then would be,

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Speaker 3: is he going to say that the same kind of

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Speaker 3: theory of broad power gives him a prerogative to go

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Speaker 3: against the courts? You're right. Last week he sort of

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Speaker 3: disclaimed that idea. Then over the weekend on social media

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Speaker 3: he posted something. I think. The line is something like

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Speaker 3: he who saves the country breaks no law. And this

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Speaker 3: is a line that associated I understand with Napoleon. That

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Speaker 3: sounds like, you know, the assertion of a progative to

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Speaker 3: operate above the law. He thinks it's what's necessary to

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Speaker 3: quote unquote save the country. So I think Trump is

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Speaker 3: sort of, you know, at least in his public statements

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Speaker 3: on both sides of the issue at this point. Again,

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Speaker 3: at the end of the day, I don't think there's

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Speaker 3: going to be you know, open defiance of court orders.

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Speaker 3: But I do think that we're in a danger zone

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Speaker 3: along those lines, unlike any we've been in for at

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Speaker 3: least many decades.

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Speaker 2: When was the last time we were in a zone

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Speaker 2: like this? Do you think?

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Speaker 3: Well? During the nixt administration, there was of course a

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Speaker 3: question about whether Nixton would obey the court order directing

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Speaker 3: that he turn over the White House tapes. And he

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Speaker 3: knew that in obeying that order that he was almost

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Speaker 3: guaranteeing the end of his presidency. And I think there

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Speaker 3: are questions about whether he would. He ultimately did so.

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Speaker 3: He ultimately complied with the will of the courts. But

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Speaker 3: that showdown, if you want, was the last time we

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Speaker 3: got this close to the precipice.

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Speaker 2: And so you had Trump talking about Napoleon, you had

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Speaker 2: Elon Musk talking about Genghis Khan. I mean, we don't

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Speaker 2: know how much power is being given to Musk, who's

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Speaker 2: not elected, And now they're saying that he's not even

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Speaker 2: the head of Doze, that he's a special advisor to Trump.

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Speaker 3: Yeah, it's the peculiar arrangement, to put it mildly. On

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Speaker 3: the one hand, you know these reports are to be believed.

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Speaker 3: Bosk and other folks working with him in this doge thing,

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Speaker 3: are being granted access to some of the most sensitive

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Speaker 3: information held within the executive branch, including very sensitive personal

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Speaker 3: information about Americans across the country. Entirely unclear to what

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Speaker 3: use did they might put that information, but it's concerning,

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Speaker 3: to say the least. And on the other hand, the

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Speaker 3: government is sort of disclaiming that Musk has any actual

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Speaker 3: governmental authority whatsoever. I think in filing or hearing yesterday

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Speaker 3: there was a claim that, you know, he's not any

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Speaker 3: kind of officer of the United States, he's just, as

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Speaker 3: you say, a kind of advisor without authority. That is

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Speaker 3: a peculiar arrangement, to put it mildly. If in fact

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Speaker 3: he has no formal authority, he at least has great,

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Speaker 3: great influence and is being granted access to essentially any

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Speaker 3: part of the government that he wants to be given

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Speaker 3: access to. We haven't seen anything like this before. Every

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Speaker 3: White House has, you know, senior advisors whose roles you know,

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Speaker 3: might be described in different ways, and maybe there are

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Speaker 3: people plucked from the business world or from academia or whatever,

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Speaker 3: but that obviously is not what's going on with Musk

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Speaker 3: and his doge minion. One of the challenges here is,

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Speaker 3: like any legal system, our legal system contains laws, principles

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Speaker 3: and rules that in many respects our responses to past problems. Well,

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Speaker 3: we've never had a situation like this before, and so

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Speaker 3: our laws are not well suited to deal with the

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Speaker 3: potential threats of abuse that come from basically just you know,

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Speaker 3: unlocking the doors to any room within the executive branch

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Speaker 3: and letting Elon Musk breeze right in.

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Speaker 2: And there's this continuing turmoil at the Justice Department over

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Speaker 2: the order to drop the corruption case against New York

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Speaker 2: City Mayor Eric Adams, where seven prosecutors resigned rather than

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Speaker 2: do that. What does that say about the Justice Department

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Speaker 2: where no disagreement is allowed even if an order seems

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Speaker 2: to fly in the face of the law.

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Speaker 3: Yeah, it is very concerning. I agree with you. I mean,

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Speaker 3: I think there is a sense that you know, ultimately

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Speaker 3: within the Justice Department, the Attorney generals at the top

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Speaker 3: of the agency and does have the authority to decide

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Speaker 3: what actions will be taken by the department, and if

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Speaker 3: low or level officials don't like that, they have the

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Speaker 3: option to resign. But it's not like every member of

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Speaker 3: the Justice Department has a sort of unilateral ability to

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Speaker 3: sort of state their disagreement and to change department policy

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Speaker 3: on that basis. But one thing that has made the

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Speaker 3: Department of Justice the great institution that it is is

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Speaker 3: that we expect a very high degree of professionalism on

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Speaker 3: the part of the attorneys serving there, and we expect

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Speaker 3: there to be disagreement and debate and even encourage that

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Speaker 3: to try and make sure that the government arrives at

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Speaker 3: the best position in individual cases and also on larger

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Speaker 3: policy questions. That's the opposite of what's being insisted upon here.

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Speaker 3: There's a demand from the Acting Deputy Attorney General Emil Bova,

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Speaker 3: seemingly just for blind adherents, no matter the merits or

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Speaker 3: lack of merits of what the government is trying to do.

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Speaker 3: And then if you look at the substance of the matter,

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Speaker 3: although Bouve and his memo to the Acting United States

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Speaker 3: Attorney here in Manhattan sort of claimed to the contrary,

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Speaker 3: it certainly looks like a quid quote. It looks like

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Speaker 3: what he's directing is that the charges against Adams be

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Speaker 3: dismissed in return for Adams's vigorous cooperation with the Trump

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Speaker 3: administration and enforcing federal immigration laws here. And then the

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Speaker 3: fact that the memo says, oh, actually we're dismissing these

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Speaker 3: charges without prejudice, so they could be brought again at

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Speaker 3: a later time. Well, that, as others have observed, is

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Speaker 3: like a sort of damageleaves just hanging above Adams. And

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Speaker 3: if he doesn't comply, what do we think might happen here? Again,

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Speaker 3: Bouvet disclaims there's any quid pro quo like this going on,

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Speaker 3: but it certainly looks like one. And I think that

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Speaker 3: was a big part of what was so concerning to

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Speaker 3: the acting US Attorney, as she explained in her letter

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Speaker 3: of resignation. That plus the fact that on the merits,

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Speaker 3: according to her, the evidence that the government has of

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Speaker 3: Mayor Adams' skills, not only of the statues he's been

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Speaker 3: charged with violating, but apparently other charges that might be

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Speaker 3: brought as well, is a really really strong case. And

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Speaker 3: she said these circumstances, if it doesn't serve justice, it's

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Speaker 3: not right in any way for these charges to be dismissed.

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Speaker 3: It looks like special favors being dispensed as a way

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Speaker 3: of coercing a local government official into cooperating with a

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Speaker 3: policy agenda of the new presidential administration, and that is

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Speaker 3: just an abuse of the criminal justice system and really

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Speaker 3: a flouting of the rule of law that everyone should

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Speaker 3: be very concerned about.

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Speaker 2: Thanks so much for joining me on the show. I

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Speaker 2: really appreciate your analysis. That's Professor Trevor Morrison of NYU

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Speaker 2: Law School coming up next. Fired inspectors general sue this

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Speaker 2: is Bloomberg. In an unprecedented move, four days after Donald

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Speaker 2: Trump returned to office last month, the White House notified

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Speaker 2: as many as seventeen inspectors general in similarly terse emails

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Speaker 2: that they were being terminated because of quote changing priorities.

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Speaker 2: Last Wednesday, eight of those ousted inspectors general filed a

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Speaker 2: lawsuit against the Trump administration, saying the terminations were unlawful

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Speaker 2: and unjustified. My guest is Diana Shaw, a partner at

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00:25:12,160 --> 00:25:15,960
Speaker 2: Wilie Rhyan. She was the acting Inspector General at the

436
00:25:16,000 --> 00:25:20,000
Speaker 2: State Department from twenty twenty to twenty twenty four. Diana,

437
00:25:20,080 --> 00:25:23,080
Speaker 2: a lot of people are not familiar with what an

438
00:25:23,160 --> 00:25:26,600
Speaker 2: inspector general does, so tell us sure so.

439
00:25:26,680 --> 00:25:32,000
Speaker 4: An inspector general is the statutorily created position within the

440
00:25:32,040 --> 00:25:36,399
Speaker 4: federal government. It sits within a federal agency, and it

441
00:25:36,520 --> 00:25:42,160
Speaker 4: is the independent watchdog for that agency, passed with conducting

442
00:25:42,200 --> 00:25:47,560
Speaker 4: oversight audits investigations to ensure the efficiency and effectiveness of

443
00:25:47,600 --> 00:25:48,280
Speaker 4: that agency.

444
00:25:48,440 --> 00:25:50,480
Speaker 2: Who appoints inspector generals.

445
00:25:50,880 --> 00:25:53,040
Speaker 4: It can happen in two ways. That half of the

446
00:25:53,080 --> 00:25:56,679
Speaker 4: inspectors general and the federal government are presidentially appointed and

447
00:25:56,720 --> 00:26:01,639
Speaker 4: Senate confirmed, and the other half are appointed by their agency.

448
00:26:02,160 --> 00:26:05,520
Speaker 4: This is for designated federal agencies or entities, and so

449
00:26:05,680 --> 00:26:07,679
Speaker 4: it's either by a board or a commission that they

450
00:26:07,680 --> 00:26:08,520
Speaker 4: would be appointed.

451
00:26:08,760 --> 00:26:11,840
Speaker 2: And they don't report to the president, do they They don't.

452
00:26:11,920 --> 00:26:14,640
Speaker 4: They serve at the pleasure of the president, but they

453
00:26:14,640 --> 00:26:19,040
Speaker 4: don't report to the president. They have a dual reporting relationship,

454
00:26:19,119 --> 00:26:22,840
Speaker 4: so they are operating under the general supervision of usually

455
00:26:22,920 --> 00:26:26,119
Speaker 4: the department head of whatever their parent agency is, but

456
00:26:26,160 --> 00:26:28,919
Speaker 4: they also have a reporting obligation to Congress as well.

457
00:26:29,359 --> 00:26:33,680
Speaker 4: At the same time, no individual can direct their work,

458
00:26:33,800 --> 00:26:36,359
Speaker 4: so nobody can tell them what work to do, what

459
00:26:36,520 --> 00:26:39,520
Speaker 4: work not to do, and they really can't be fired

460
00:26:39,720 --> 00:26:43,840
Speaker 4: or disciplined, although they can be let go by the president,

461
00:26:43,960 --> 00:26:46,120
Speaker 4: but with some limitations under the law.

462
00:26:46,720 --> 00:26:52,280
Speaker 2: President Trump fired as many as seventeen inspectors General four

463
00:26:52,359 --> 00:26:56,320
Speaker 2: days after returning to the White House, and the email

464
00:26:56,400 --> 00:27:01,400
Speaker 2: said they were being terminated because of changing priory. How

465
00:27:01,480 --> 00:27:02,359
Speaker 2: unusual is that?

466
00:27:03,400 --> 00:27:07,919
Speaker 4: So this has never happened before. This is unprecedented. I

467
00:27:07,920 --> 00:27:11,679
Speaker 4: believe the only other historical reference point we have is

468
00:27:11,880 --> 00:27:16,280
Speaker 4: during the Reagan administration. This was the first administration after

469
00:27:16,400 --> 00:27:19,960
Speaker 4: the founding of the Inspector General Act, and President Raygan

470
00:27:20,040 --> 00:27:24,040
Speaker 4: did fire the Inspectors general at that time, although he did,

471
00:27:24,280 --> 00:27:26,600
Speaker 4: I think, on the basis of some very strong advice,

472
00:27:26,760 --> 00:27:29,240
Speaker 4: end up hiring many of them back. But this is

473
00:27:29,280 --> 00:27:31,280
Speaker 4: really unprecedented, and.

474
00:27:31,280 --> 00:27:34,760
Speaker 2: Two of the plaintiffs had been nominated to Inspector General

475
00:27:34,840 --> 00:27:38,040
Speaker 2: roles by Trump in his first term. Is there any

476
00:27:38,040 --> 00:27:40,120
Speaker 2: speculation about why they were fired?

477
00:27:41,200 --> 00:27:45,960
Speaker 4: Well, as noted, several of the IG's were Trump appointees,

478
00:27:46,600 --> 00:27:48,919
Speaker 4: Some had been in position for a long time, some

479
00:27:48,960 --> 00:27:51,320
Speaker 4: were brand news, some were known as you know, sort

480
00:27:51,320 --> 00:27:55,800
Speaker 4: of aggressive, some not so. Really, it was perplexing for

481
00:27:55,880 --> 00:27:58,880
Speaker 4: those looking across that list to try to understand whether

482
00:27:58,920 --> 00:28:01,760
Speaker 4: there was some kind of a cohesive theme there. I

483
00:28:01,800 --> 00:28:05,320
Speaker 4: think what I saw analyzing that list is it does

484
00:28:05,400 --> 00:28:08,480
Speaker 4: look like, with the exception of two, he really did

485
00:28:08,560 --> 00:28:12,520
Speaker 4: sort of sweep the cabinet level agencies. The two exceptions

486
00:28:12,520 --> 00:28:16,080
Speaker 4: were Department of Justice and Department of Homeland Security, and

487
00:28:16,119 --> 00:28:18,680
Speaker 4: then there were smattering of others as well.

488
00:28:19,400 --> 00:28:23,400
Speaker 2: As you mentioned, presidents can fire inspectors general, but there

489
00:28:23,440 --> 00:28:25,680
Speaker 2: are certain rules tell us about them.

490
00:28:26,080 --> 00:28:30,880
Speaker 4: So there were prior to the first administration relatively few

491
00:28:31,359 --> 00:28:34,320
Speaker 4: parameters set on what the president could and couldn't do.

492
00:28:34,440 --> 00:28:39,720
Speaker 4: But following the terminations of igs under the first Trump administration,

493
00:28:39,960 --> 00:28:43,000
Speaker 4: the law was actually amended. The IGC was amended after

494
00:28:43,040 --> 00:28:46,520
Speaker 4: the first administration to put some additional guardrails in place,

495
00:28:47,160 --> 00:28:50,760
Speaker 4: and so under these new amendments, the president is required

496
00:28:50,800 --> 00:28:54,480
Speaker 4: to provide thirty day notice to Congress of his intention

497
00:28:54,680 --> 00:28:57,800
Speaker 4: to remove an IG, and that notice has to include

498
00:28:58,280 --> 00:29:01,960
Speaker 4: case specific, substantive, case specific reasons for the firing of

499
00:29:02,000 --> 00:29:05,680
Speaker 4: each of those IGS. And if the president wants to

500
00:29:06,000 --> 00:29:09,800
Speaker 4: immediately put an IG on administrative leave while that thirty

501
00:29:09,880 --> 00:29:13,840
Speaker 4: day clock is running, he's supposed to articulate that that

502
00:29:13,880 --> 00:29:18,120
Speaker 4: IG is actually a workplace threat. In this case, none

503
00:29:18,200 --> 00:29:22,840
Speaker 4: of those provisions were complied with, and so it's really

504
00:29:22,880 --> 00:29:26,600
Speaker 4: a question whether those amendments have any teeth or not.

505
00:29:26,760 --> 00:29:29,080
Speaker 4: That's really what's at stake here, and this is the

506
00:29:29,120 --> 00:29:31,200
Speaker 4: first time those amendments are being tested.

507
00:29:31,840 --> 00:29:37,760
Speaker 2: So in his first administration, Trump replaced multiple inspectors general.

508
00:29:38,000 --> 00:29:41,760
Speaker 2: What happened with those firings in twenty twenty.

509
00:29:41,880 --> 00:29:45,800
Speaker 4: So those removals, actually I lived through one of them.

510
00:29:45,840 --> 00:29:48,800
Speaker 4: That's how I became an acting inspector general. He removed

511
00:29:48,880 --> 00:29:51,680
Speaker 4: my inspector General, Steve Lennock at the Department of State.

512
00:29:52,240 --> 00:29:55,320
Speaker 4: In that case, he put them immediately on administrative leave.

513
00:29:55,760 --> 00:29:59,400
Speaker 4: If they were inspectors general, they were on administrative leave

514
00:29:59,400 --> 00:30:03,280
Speaker 4: for thirty days and then terminated after that point. In

515
00:30:03,400 --> 00:30:06,480
Speaker 4: the instance of the Department of Defense, individual he was

516
00:30:06,480 --> 00:30:09,320
Speaker 4: the acting inspector General, and so in that case, the

517
00:30:09,360 --> 00:30:12,800
Speaker 4: President simply appointed another person in that person's stead, and

518
00:30:12,880 --> 00:30:16,440
Speaker 4: so he no longer served in that capacity. Similarly, that's

519
00:30:16,480 --> 00:30:17,840
Speaker 4: what happened at HHS.

520
00:30:18,200 --> 00:30:21,320
Speaker 2: So eight of the inspectors general who were fired recently

521
00:30:21,800 --> 00:30:26,600
Speaker 2: have filed a lawsuit saying the terminations were unlawful and unjustified.

522
00:30:26,640 --> 00:30:28,600
Speaker 2: Tell us more about their lawsuits.

523
00:30:29,160 --> 00:30:33,240
Speaker 4: Sure, So they're essentially looking to uphold the new amendments

524
00:30:33,240 --> 00:30:36,880
Speaker 4: of the ig Act and stating that the process by

525
00:30:36,880 --> 00:30:40,120
Speaker 4: which the President exercised his authority to remove them was

526
00:30:40,160 --> 00:30:44,320
Speaker 4: inconsistent with the law, and that the law requires thirty

527
00:30:44,360 --> 00:30:47,440
Speaker 4: day notice to Congress, and it requires him to articulate

528
00:30:48,080 --> 00:30:51,640
Speaker 4: case specific substance of rationale for the removal of each

529
00:30:51,680 --> 00:30:54,960
Speaker 4: and every one of them. And so they are claiming

530
00:30:55,040 --> 00:30:57,880
Speaker 4: that he has exceeded his authority in the manner in

531
00:30:57,920 --> 00:31:01,440
Speaker 4: which he's removed them, and they're seeking basically injunctive relief

532
00:31:01,680 --> 00:31:06,080
Speaker 4: to allow them to basically return to their positions as

533
00:31:06,120 --> 00:31:09,680
Speaker 4: the court adjudicates the merits of their claim, and ultimately

534
00:31:09,760 --> 00:31:12,400
Speaker 4: I think they would be looking to return to their jobs,

535
00:31:12,440 --> 00:31:15,880
Speaker 4: and I guess have the president follow the course of action,

536
00:31:16,040 --> 00:31:17,920
Speaker 4: I mean, it sort of begs the question what is

537
00:31:17,960 --> 00:31:20,800
Speaker 4: the ultimate outcome here? I mean, even if they get

538
00:31:20,840 --> 00:31:24,120
Speaker 4: everything they want, the President could then still just provide

539
00:31:24,120 --> 00:31:27,040
Speaker 4: the thirty day notice. But I think, you know, there's

540
00:31:27,320 --> 00:31:30,760
Speaker 4: arguably two benefits even if the outcome in the end

541
00:31:30,880 --> 00:31:34,640
Speaker 4: is nevertheless the same. And that's one. It really you know,

542
00:31:34,800 --> 00:31:37,320
Speaker 4: tests whether the amendments to the law have teeth, and

543
00:31:37,400 --> 00:31:40,800
Speaker 4: if they're victorious and show that in fact these amendments

544
00:31:40,880 --> 00:31:43,400
Speaker 4: do matter and they are the law, there's you know,

545
00:31:43,600 --> 00:31:47,720
Speaker 4: arguably value in that. But also I would expect that

546
00:31:47,760 --> 00:31:50,520
Speaker 4: if the President has to actually articulate a basis for

547
00:31:50,600 --> 00:31:54,520
Speaker 4: each of their firings, that gives them something to argue against, right,

548
00:31:54,520 --> 00:31:58,720
Speaker 4: that gives them potentially some spodder to use to challenge

549
00:31:58,760 --> 00:31:59,520
Speaker 4: their firings.

550
00:31:59,520 --> 00:32:03,120
Speaker 2: Even first there, so a DC federal judge refused to

551
00:32:03,240 --> 00:32:09,160
Speaker 2: grant the emergency request for their immediate reinstatement, so they

552
00:32:09,200 --> 00:32:12,880
Speaker 2: lost the first round there. But let's say the President

553
00:32:13,000 --> 00:32:16,760
Speaker 2: provides the notice and the explanation. Is it then up

554
00:32:16,760 --> 00:32:19,920
Speaker 2: to Congress to say, no, we don't think that's true,

555
00:32:20,200 --> 00:32:23,240
Speaker 2: or is it just sort of a notice provision that

556
00:32:23,360 --> 00:32:25,000
Speaker 2: has no teeth to it.

557
00:32:25,680 --> 00:32:28,560
Speaker 4: Well, it's a good question, I think based on the

558
00:32:29,240 --> 00:32:32,120
Speaker 4: legislative history and the hearings around this, I think the

559
00:32:32,280 --> 00:32:35,440
Speaker 4: hope was that this thirty day period would give Congress

560
00:32:35,440 --> 00:32:38,959
Speaker 4: the opportunity to sort of parse through the rationale and

561
00:32:39,000 --> 00:32:41,160
Speaker 4: if it didn't pass the smell test, it would give

562
00:32:41,200 --> 00:32:46,320
Speaker 4: them time to exercise influence and pressure. But ultimately, there's

563
00:32:46,320 --> 00:32:48,440
Speaker 4: nothing that I see in the law that actually gives

564
00:32:48,440 --> 00:32:53,000
Speaker 4: them the authority to veto the president's authority to remove

565
00:32:53,080 --> 00:32:55,440
Speaker 4: an IG. So I think it's sort of a soft

566
00:32:55,520 --> 00:32:59,080
Speaker 4: power play, but would give them the opportunity to at

567
00:32:59,160 --> 00:33:02,520
Speaker 4: least voice their concern and potentially mount kind of an

568
00:33:02,560 --> 00:33:06,800
Speaker 4: influence campaign to potentially try to cause a course correction

569
00:33:07,600 --> 00:33:10,560
Speaker 4: if they felt very strongly that it wasn't a justified firing.

570
00:33:11,240 --> 00:33:14,920
Speaker 2: The former Inspector General of the Department of Veterans Affairs

571
00:33:14,960 --> 00:33:18,520
Speaker 2: Toll CBS. My only guess could be there trying to

572
00:33:18,680 --> 00:33:23,719
Speaker 2: impact the independence that IGS have because it makes no sense.

573
00:33:24,400 --> 00:33:26,760
Speaker 2: Can you make sense of it from you know, which

574
00:33:26,920 --> 00:33:29,280
Speaker 2: departments were actually targeted?

575
00:33:30,000 --> 00:33:33,240
Speaker 4: Well, you know, again looking at who was removed, and

576
00:33:33,280 --> 00:33:35,800
Speaker 4: that it seems to have been a wiping of the

577
00:33:35,880 --> 00:33:39,479
Speaker 4: slate queen of the cabinet level agencies. It does appear

578
00:33:39,560 --> 00:33:42,960
Speaker 4: as though the president wants the opportunity to nominate his

579
00:33:43,040 --> 00:33:46,600
Speaker 4: own nominees for those cabinet level positions, although there are

580
00:33:46,760 --> 00:33:51,360
Speaker 4: some others, as I said, not within that group. But honestly,

581
00:33:51,360 --> 00:33:53,920
Speaker 4: I think it's you know, potentially too soon to reach

582
00:33:53,960 --> 00:33:57,000
Speaker 4: a conclusion about what the president's intentions are. I think

583
00:33:57,040 --> 00:34:01,000
Speaker 4: what it really comes down to is who is nominated

584
00:34:01,120 --> 00:34:05,560
Speaker 4: in those positions, right, the individuals that hold those positions

585
00:34:05,600 --> 00:34:08,520
Speaker 4: are supposed to be nominated, not on the basis of

586
00:34:08,560 --> 00:34:11,840
Speaker 4: any kind of political affiliation. Solely on the basis of

587
00:34:11,880 --> 00:34:15,960
Speaker 4: the criteria of their qualifications for their role, their audit

588
00:34:16,000 --> 00:34:20,080
Speaker 4: experience or investigative experience. And so you know, in theory,

589
00:34:20,200 --> 00:34:25,440
Speaker 4: if people with those qualifications are nominated into those positions

590
00:34:25,480 --> 00:34:28,960
Speaker 4: and are filling those positions and performing those duties in

591
00:34:29,000 --> 00:34:33,720
Speaker 4: a nonpartisan a political way, then you know that mission

592
00:34:33,880 --> 00:34:38,080
Speaker 4: can be carried forward appropriately. And until we see that,

593
00:34:38,120 --> 00:34:40,840
Speaker 4: we won't really know what's to come next. But what

594
00:34:40,920 --> 00:34:43,520
Speaker 4: I can say on behalf of my former colleagues is

595
00:34:43,960 --> 00:34:46,760
Speaker 4: I've not ever worked with a better group of people

596
00:34:46,840 --> 00:34:49,200
Speaker 4: who were more committed to the mission. So it really

597
00:34:49,280 --> 00:34:52,160
Speaker 4: is a loss for the community that such incredible people

598
00:34:52,200 --> 00:34:54,520
Speaker 4: are no longer in those roles, and that so much

599
00:34:54,560 --> 00:34:57,040
Speaker 4: talent and commitment has been lost.

600
00:34:57,360 --> 00:35:00,600
Speaker 2: Trump is asking the Supreme Court to intervene because he

601
00:35:00,680 --> 00:35:05,480
Speaker 2: wants to fire the head of the independent agency that

602
00:35:05,600 --> 00:35:11,840
Speaker 2: protects whistleblowers. When the lower court judge Amy Burman Jackson

603
00:35:12,600 --> 00:35:16,799
Speaker 2: issued a restraining order on the firing, she said that

604
00:35:17,120 --> 00:35:20,839
Speaker 2: it plainly went against US law because the administration didn't

605
00:35:20,880 --> 00:35:23,960
Speaker 2: provide any reason, even though federal law says the person

606
00:35:24,000 --> 00:35:27,880
Speaker 2: in that position could only be removed for inefficiency, neglect

607
00:35:27,920 --> 00:35:32,320
Speaker 2: of duty or malfeasance in office. Could a decision here

608
00:35:33,239 --> 00:35:39,880
Speaker 2: have an impact or reverberations for the Inspector General firings?

609
00:35:40,040 --> 00:35:43,840
Speaker 4: I think potentially, I mean from a morale perspective, it

610
00:35:43,960 --> 00:35:47,800
Speaker 4: certainly could you know, bolster the will to keep pushing

611
00:35:47,920 --> 00:35:50,200
Speaker 4: in the courts. I mean, I do think there are

612
00:35:50,200 --> 00:35:54,759
Speaker 4: some important distinguishing factors here. Partly the language that you

613
00:35:54,880 --> 00:35:58,520
Speaker 4: just cited the Special Council can only be removed under

614
00:35:58,560 --> 00:36:02,480
Speaker 4: those specific circum stances, which are much stronger than the

615
00:36:02,600 --> 00:36:07,880
Speaker 4: language in the Inspector General Act for the removal of IG's. Also,

616
00:36:08,080 --> 00:36:10,600
Speaker 4: I think, you know, the way the case law has

617
00:36:10,640 --> 00:36:14,680
Speaker 4: developed around the Special Council and the removal of agency heads.

618
00:36:14,960 --> 00:36:17,359
Speaker 4: The Special Council has argued that it has a much

619
00:36:17,480 --> 00:36:21,759
Speaker 4: narrower role in terms of government, whereas Inspectors General are

620
00:36:21,800 --> 00:36:25,719
Speaker 4: operating within cabinet agencies. And so you know, that could

621
00:36:25,840 --> 00:36:29,799
Speaker 4: end up being an important distinguishing factor. But nevertheless, sort

622
00:36:29,840 --> 00:36:33,520
Speaker 4: of very similar missions and so there's definitely, you know,

623
00:36:33,560 --> 00:36:36,680
Speaker 4: some ground there to draw comparisons. And I would think

624
00:36:37,040 --> 00:36:40,960
Speaker 4: if Hampton Dellager is successful that that would be something

625
00:36:41,000 --> 00:36:44,200
Speaker 4: that they would be looking to to add some heft

626
00:36:44,280 --> 00:36:47,800
Speaker 4: to their motions and their efforts to challenge their own firings.

627
00:36:47,960 --> 00:36:50,720
Speaker 2: Thanks so much for joining me today. That's Diana Shaw

628
00:36:50,880 --> 00:36:53,520
Speaker 2: of Wilie Rhine and that's it for this edition of

629
00:36:53,520 --> 00:36:56,200
Speaker 2: The Bloomberg Law Show. Remember you can always get the

630
00:36:56,280 --> 00:36:59,480
Speaker 2: latest legal news on our Bloomberg Law Podcast. You can

631
00:36:59,480 --> 00:37:03,719
Speaker 2: find them on Apple Podcasts, Spotify, and at www dot

632
00:37:03,760 --> 00:37:07,960
Speaker 2: bloomberg dot com, slash podcast Slash Law, and remember to

633
00:37:08,000 --> 00:37:11,040
Speaker 2: tune into The Bloomberg Law Show every weeknight at ten

634
00:37:11,080 --> 00:37:14,840
Speaker 2: pm Wall Street Time. I'm June Grosso and you're listening

635
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Speaker 2: to Bloomberg