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Trump Tests Legal Limits & Inspectors General Sue · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:17
Speaker 2: Yesterday, on President's Day, there were a series of protests
0:20
Speaker 2: in major cities and state capitals across the country against
0:25
Speaker 2: the purge of the federal bureaucracy by President Donald Trump
0:29
Speaker 2: and billionaire Elon Musk. The rallies followed a series of
0:33
Speaker 2: Trump executive orders and came just days after the layoffs
0:37
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
0:48
Speaker 2: is trying to shutter entire agencies, including the Department of
0:52
Speaker 2: Education and the US Consumer Financial Protection Bureau, with Trump's blessing,
0:58
Speaker 2: but without Congressional approval, Thus the chance of where is
1:02
Speaker 2: Congress and do your job? Trump's actions have drawn dozens
1:06
Speaker 2: of lawsuits challenging the moves as unconstitutional and an unlawful
1:11
Speaker 2: executive power grab. Joining me is constitutional law expert Trevor Morrison,
1:16
Speaker 2: a professor at NYU Law School. Trump is issuing executive
1:21
Speaker 2: order after executive order, covering all kinds of areas, from
1:25
Speaker 2: immigration to federal workers. Why does flurry of executive orders?
1:31
Speaker 3: Well, I think it's not unusual for there to be
1:34
Speaker 3: a flurry of executive orders signed by a new president.
1:39
Speaker 3: President Obama when he was born in signed just in
1:41
Speaker 3: the first few days of his first term a number
1:44
Speaker 3: of executive orders across a wide range subject areas, including
1:48
Speaker 3: guantanam obey and enemy combatants in all manner of other issues,
1:51
Speaker 3: and so that by itself is not surprising, although even
1:56
Speaker 3: by those historical standards, the total volume of executive way
2:00
Speaker 3: that Trump is signed is very large. But it's not
2:03
Speaker 3: so much that there are all these executive orders. It's
2:05
Speaker 3: the content of them, and it's certain themes that are
2:08
Speaker 3: recurring across these executive orders, really almost without regard to
2:14
Speaker 3: the subject matter, and a key one there. This isn't
2:17
Speaker 3: true for all of the executive orders, but it's true
2:19
Speaker 3: for many of them that they involve assertions of presidential
2:23
Speaker 3: power that cannot possibly be reconciled with binding federal statutory law.
2:30
Speaker 3: So laws that Congress has passed in the area. The
2:34
Speaker 3: president's asserting a kind of constitutional authority to take some action,
2:38
Speaker 3: or just a general prerogative to take some kind of action,
2:41
Speaker 3: and frequently isn't even bothering to acknowledge the statute that
2:45
Speaker 3: his action would violate or conflict with let alone attempt
2:49
Speaker 3: to justify why the president could act in the face
2:52
Speaker 3: of those contrary commands. And that's the assertion of power
2:56
Speaker 3: that I think is so breathtaking, frankly, and is being
3:00
Speaker 3: challenged in multiple different lawsuits right now. Of course. But
3:04
Speaker 3: you can sign executive orders and put them out there
3:06
Speaker 3: a lot more quickly than courts can respond and evaluate
3:09
Speaker 3: their legality, so that response will take time, whatever it is.
3:13
Speaker 2: On the first day, he decided to ignore the law
3:17
Speaker 2: banning TikTok. That I mean, so that was so clear,
3:22
Speaker 2: But Congress doesn't object.
3:24
Speaker 3: Well, that's part of the problem here. Yes, you're right.
3:27
Speaker 3: A statute that had just been evaluated by the Supreme
3:30
Speaker 3: Court the week before and upheld by a unanimous court,
3:34
Speaker 3: a statute essentially requiring that TikTok cease operations in the
3:39
Speaker 3: United States unless its parent companies sells its interest in
3:43
Speaker 3: TikTok to an entity that's not subject to being controlled
3:46
Speaker 3: by the Chinese government. That's what the law requires. Everyone
3:50
Speaker 3: agrees that the law took effect right before Trump was inaugurated,
3:55
Speaker 3: and then Trump just by executive order, announced that he's
3:58
Speaker 3: going to suspend the effectiveness of the law for I
4:01
Speaker 3: think seventy five days. The President does not have the
4:04
Speaker 3: authority to do that, and there's not even really an
4:06
Speaker 3: attempt in the Executive Order to give a theory for
4:09
Speaker 3: how anyone could think that the president has the authority
4:11
Speaker 3: to do that. All he says is, I'm the president.
4:14
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
4:21
Speaker 3: operation in the United States. I'd like to pursue those options,
4:25
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
4:31
Speaker 3: even say that this is a matter of directing the
4:34
Speaker 3: Attorney General to exercise some prosecutorial discretion in deciding whether
4:40
Speaker 3: to enforce the law. We do understand that the executive branch,
4:43
Speaker 3: ultimately the President, through the Justice Department, has some inherent
4:48
Speaker 3: discretion when it comes to when and how to enforce
4:51
Speaker 3: the law, but this EO goes way beyond that. He
4:54
Speaker 3: actually directs the Attorney General to issue letters to the
4:57
Speaker 3: various platforms that would platform take talk telling them that
5:02
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
5:09
Speaker 3: are violating the law, And so he has literally just
5:12
Speaker 3: suspended the effectiveness of a statute or rewritten it, as
5:15
Speaker 3: you say, that was on day one. There is no
5:18
Speaker 3: legal theory on which that executive order can be viewed
5:21
Speaker 3: to be legitimate. On the other hand, it hasn't yet
5:24
Speaker 3: been challenged in court, and at this point I'm rather
5:26
Speaker 3: doubtful that it will be challenged in court. So on
5:29
Speaker 3: this one, he's liable to get away with it because,
5:31
Speaker 3: as you say, Congress doesn't seem to have the will
5:34
Speaker 3: to stand out for its own prerogatives in this area
5:37
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
5:43
Speaker 2: we're up to four judges who have blocked it, is
5:47
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.
5:54
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,
6:02
Speaker 3: and no judge who's looked at the issue has been
6:06
Speaker 3: remotely sympathetic to the Trump administration's position, which is that
6:11
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
6:17
Speaker 3: be citizens of the United States. His order to read
6:20
Speaker 3: that constitutional language as excluding people born in the United
6:25
Speaker 3: States to parents who entered the country unlawfully, or even
6:29
Speaker 3: to parents who are in the country lawfully but on
6:32
Speaker 3: a temporary basis, like on a student visa or a
6:35
Speaker 3: work visa. There is no justification in our constitutional history
6:39
Speaker 3: for that interpretation. It's contrary to Supreme Court precedent. It's
6:44
Speaker 3: contrary to decades of government practice, Department of Justice practice,
6:48
Speaker 3: and legal opinions issued by the Department of Justice. Again,
6:52
Speaker 3: it's not just wrong in terms of its interpretation of
6:55
Speaker 3: the fourteenth Amendment, but it conflicts with statutes that Congress
6:58
Speaker 3: has passed recognize an entitlement to birthright citizenship that would
7:03
Speaker 3: cover everyone born in the United States, with only very,
7:07
Speaker 3: very narrow exceptions like children of diplomats where the diplomats
7:10
Speaker 3: are here serving that foreign country in the United States,
7:14
Speaker 3: or children of the members of an occupying army. These
7:18
Speaker 3: are the narrow historical exceptions that are recognized, and Congress
7:22
Speaker 3: has legislators who otherwise provide to confirm that if you're
7:25
Speaker 3: born in the United States, you're entitled the citizenship without
7:27
Speaker 3: regard to the legal status of your parents. Trump in
7:30
Speaker 3: his executive order doesn't even really acknowledge the existence of
7:34
Speaker 3: those statutes, certainly doesn't attempt to justify why he can
7:37
Speaker 3: ignore them. And his constitutional theory of the fourteenth Amendment
7:41
Speaker 3: is just wrong. And here, unlike the TikTok example, as
7:44
Speaker 3: you mentioned, it's already been challenged in courts, and I
7:47
Speaker 3: and many other observers expect him to continue to lose
7:51
Speaker 3: on this issue in the federal courts up to and
7:53
Speaker 3: probably including at the Supreme Court.
7:55
Speaker 2: As you know, the legislature has the power of the purse.
8:00
Speaker 2: When Trump froze federal funds, they also talked about getting
8:04
Speaker 2: rid of which is something that he has campaigned on,
8:07
Speaker 2: getting rid of the empowerment law. I mean, so this
8:10
Speaker 2: would take it to the point where he's taken away
8:14
Speaker 2: one of the legislature's prime prerogatives.
8:18
Speaker 3: Yes, this is another important area. And you know, I
8:21
Speaker 3: think to members of the public generally, this can just
8:25
Speaker 3: sound like, you know, the Trump administration wanting to ensure
8:29
Speaker 3: that taxpayer dollars are spent wisely and that waste is
8:34
Speaker 3: eliminated within the federal government. And of course those are
8:36
Speaker 3: all good and laudible goals, but in our constitutional system,
8:41
Speaker 3: the president is not allowed to say, well, I'm just
8:44
Speaker 3: going to identify abuse, or identify a part of it,
8:47
Speaker 3: you know, an agency whose operations I don't like, and
8:50
Speaker 3: just free spending for it altogether, as he's done for USAID,
8:53
Speaker 3: or try to sort of dismantle an agency whose existence
8:56
Speaker 3: has been provided for by Congress. On the spending issue
9:01
Speaker 3: in particular, it seems that the Trump administration is trying
9:05
Speaker 3: to assert a kind of general constitutional power of impoundment
9:10
Speaker 3: that the president, as part of his executive power, can
9:13
Speaker 3: just decide not to spend fund that have been appropriated
9:17
Speaker 3: by Congress to be used in a particular area for
9:20
Speaker 3: a particular purpose. And it's been recognized by executive branch
9:25
Speaker 3: officials of both parties over decades that the president does
9:29
Speaker 3: not have that authority. The idea has come up before,
9:32
Speaker 3: and for example, John Roberts, Chief Justice John Roberts, when
9:35
Speaker 3: he was serving in the Reagan White House, wrote a
9:37
Speaker 3: memo confirming the consensus understanding that the president does not
9:41
Speaker 3: have a general impoundment authority. Now whether a president could
9:46
Speaker 3: decline to spend all of the dollars that Congress has
9:50
Speaker 3: earmarked for a particular purpose ultimately comes down to the
9:53
Speaker 3: particular statute where Congress did that ear marketing. Congress can
9:57
Speaker 3: give the executive branch certain discretion, say up to x
10:01
Speaker 3: amounts of dollars may be spent for the following purpose,
10:04
Speaker 3: and that doesn't mean all of that amount must be spent,
10:08
Speaker 3: But it really depends on how Congress has made these appropriations.
10:12
Speaker 3: And again, so the litigation in this space is going
10:14
Speaker 3: to end up looking kind of statute by statute at
10:17
Speaker 3: the way the appropriations are structured. But the general theory
10:21
Speaker 3: that the administration seems to be running on is one
10:23
Speaker 3: that would just steamroll all of those statutory niceties and
10:28
Speaker 3: assert a kind of general presidential prerogative. John Roberts didn't
10:32
Speaker 3: think the president had that kind of prerogative. The chief
10:34
Speaker 3: Justice before him, William Ranquist, when he was serving in
10:37
Speaker 3: the Justice Department before he went to the Supreme Court,
10:39
Speaker 3: wrote an opinion saying, the president doesn't have that kind
10:42
Speaker 3: of prerogative, and I expect that position to be the
10:45
Speaker 3: position of the courts in this area ultimately, which is
10:47
Speaker 3: to say, I expect the Trump administration to lose in
10:49
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
10:55
Speaker 2: this conversation with NYU Law School professor Trevor Morrison. What's
10:59
Speaker 2: the risk that the administration might simply ignore court orders
11:04
Speaker 2: or go against them? And when was the last time
11:06
Speaker 2: we've seen this kind of a crisis. I'm June Grosso.
11:10
Speaker 2: When you're listening to Bloomberg, I've been talking to n
11:13
Speaker 2: YU Law School professor Trevor Morrison about President Donald Trump's
11:18
Speaker 2: executive orders that have drawn dozens of lawsuits challenging the
11:22
Speaker 2: moves as unconstitutional and unlawful executive power grabs. Trump is
11:29
Speaker 2: already asking the Supreme Court to intervene to allow him
11:33
Speaker 2: to fire the head of the independent US agency that
11:38
Speaker 2: protects government whistleblowers. This court, you know, you mentioned Roberts,
11:42
Speaker 2: but this court has several conservatives that are to the
11:46
Speaker 2: right of Roberts. And we already saw in July how
11:51
Speaker 2: they expanded the president's immunity from prosecution for acts within
11:56
Speaker 2: his official duties in an opinion that most I mean
11:58
Speaker 2: most people like talk to were shocked by that opinion.
12:01
Speaker 3: Yes, I was among those who was quite dismayed by
12:05
Speaker 3: to Justice Roberts's opinion in the immunity case. You know,
12:08
Speaker 3: one can debate whether the outcome was justifiable. I tend
12:13
Speaker 3: to think not. But much worse than that was the
12:16
Speaker 3: particular way that Roberts sort of reasoned his way to
12:19
Speaker 3: that outcome, and it contained in it a kind of
12:23
Speaker 3: theory of exclusive presidential power that is now being in
12:27
Speaker 3: vote by the Trump administration, not in any kind of
12:30
Speaker 3: criminal immunity context, but in all these other areas where
12:33
Speaker 3: executive power is being asserted. I don't think that there's
12:36
Speaker 3: a majority of the Court that actually is prepared to
12:40
Speaker 3: sort of apply the Trump immunity precedent as broadly as
12:44
Speaker 3: the Trump administration is now trying to do. There may
12:48
Speaker 3: be some votes on the Court, but I don't think
12:49
Speaker 3: there's a majority for it. But in many ways, this
12:52
Speaker 3: set of questions is a little bit of a problem
12:54
Speaker 3: of the Court's own making. If the majority opinion in
12:57
Speaker 3: the immunity case, even if it was going to reach
13:00
Speaker 3: roughly the same outcome, had been written more carefully in
13:03
Speaker 3: a way that was more tied to the courts existing
13:07
Speaker 3: jurisprudence on the constitutional separation of powers. Then there would
13:11
Speaker 3: be less mischief that could be made with the opinion
13:13
Speaker 3: compared to what we're seeing what we're seeing now. But
13:16
Speaker 3: you know, across this set of issue areas, many of
13:19
Speaker 3: these issues are liable to end up not just in
13:22
Speaker 3: the federal courts but before the Supreme Court, and the
13:24
Speaker 3: Trump administration may win some, I think they're certainly going
13:28
Speaker 3: to lose some. One of the big challenges here, though,
13:31
Speaker 3: again is that you know, the President in a matter
13:33
Speaker 3: of a couple of days, can sign executive orders and
13:36
Speaker 3: then direct that action be taken consistent with those orders
13:39
Speaker 3: across the executive branch and kind of change the facts
13:42
Speaker 3: on the ground rather quickly. And then you know, it
13:46
Speaker 3: will take time. Even if courts ultimately conclude that some
13:50
Speaker 3: or even all of those actions are unlawful, it will
13:52
Speaker 3: take a while for the courts to respond and to
13:54
Speaker 3: try and rein in the administration. In the meantime, you know,
13:58
Speaker 3: Trump presses forward, helped by figures like Elon Muskin, his
14:02
Speaker 3: army of doge folks, and so that's a big part
14:06
Speaker 3: of the challenge.
14:06
Speaker 2: Here, and I mentioned this before, but you have Republicans
14:11
Speaker 2: not only not objecting to what he's doing, but generally
14:15
Speaker 2: supporting it. You had the Speaker of the House saying
14:18
Speaker 2: that the courts should take a step back and let
14:20
Speaker 2: things play out. So you're not going to find any
14:24
Speaker 2: kind of resistance there is. The only resistance going to
14:27
Speaker 2: be in lawsuits from outside groups or Democratic ags.
14:34
Speaker 3: Well, I think if the Republican leadership in Congress were
14:37
Speaker 3: better students of James Madison, they would understand that they
14:42
Speaker 3: are in danger of abdicating a role that is Congress
14:45
Speaker 3: is to check sort of abuse of executive authority. And
14:49
Speaker 3: so you're right that a checking role that might have
14:52
Speaker 3: been played by a more responsible Congress is not being played.
14:56
Speaker 3: I'm not sure though, that that means that, you know,
14:59
Speaker 3: everyone President Trump's copartisans in Congress will simply abdicate their
15:05
Speaker 3: role or never raise any objection no matter what happens.
15:08
Speaker 3: You know, something that's looming in the background. Here is
15:11
Speaker 3: their reason to worry that the Trump administration might simply
15:15
Speaker 3: ignore court orders on some of these issues if they
15:18
Speaker 3: lose in court and you know, don't want to abide
15:20
Speaker 3: by the court order. My colleague Richard piled Us at
15:24
Speaker 3: NYU and I have published an op ed just a
15:26
Speaker 3: few days ago sort of discussing what would happen in
15:29
Speaker 3: that circumstance. Everyone agrees that that would quickly bring us
15:33
Speaker 3: into a real constitutional crisis. I don't think, at least
15:36
Speaker 3: the Republican leadership in Congress, you know, want the country
15:40
Speaker 3: to be brought to that brank and so I suspect
15:42
Speaker 3: actually that there would be quite a number of voices
15:44
Speaker 3: from across the political spectrum saying that, you know, you
15:48
Speaker 3: can appeal a judgment that you don't like, and maybe
15:50
Speaker 3: the appellate court will reverse what the trial court did,
15:53
Speaker 3: but the court orders ultimately need to be followed. And
15:56
Speaker 3: there were even some Republicans in Congress who were taking
16:00
Speaker 3: that position last week in response to things that were
16:04
Speaker 3: being said by different members of the Trump administration that
16:06
Speaker 3: seemed to be kind of testing the waters for the
16:08
Speaker 3: idea that maybe it would be legitimate to ignore a
16:11
Speaker 3: court order. So on some issues, I think there might
16:14
Speaker 3: be some pushback. And beyond Congress, of course, there's the
16:17
Speaker 3: American people and maybe in particular the business community. So
16:21
Speaker 3: if the Trump administration started ignoring court orders, I think
16:25
Speaker 3: that could quite quickly bring a lot of turmoil in
16:28
Speaker 3: the market and in the economy more generally, because the
16:32
Speaker 3: reliability of an independent judiciary to enforce property and contract rights,
16:37
Speaker 3: for example, it could quickly be thrown into question if
16:40
Speaker 3: the administration started taking a position that they could simply
16:43
Speaker 3: ignore court orders not to their liking. And I don't
16:46
Speaker 3: think ultimately that the Trump administration wants to court that
16:49
Speaker 3: kind of trouble with the public markets.
16:52
Speaker 2: Trump did say last week and the Oval Office that
16:54
Speaker 2: he always obeys court orders. Of course, in his personal
16:57
Speaker 2: life we've seen that he doesn't always obey court orders.
17:00
Speaker 2: But the Press secretary, you know, they make these statements
17:05
Speaker 2: about Article two of the Constitution, and Trump has said
17:08
Speaker 2: this too, and sort of echoes Richard Nixon that he
17:10
Speaker 2: can do whatever he wants under Article two of the Constitution.
17:14
Speaker 2: And there's this idea among his people that he has,
17:19
Speaker 2: you know, exclusive powers over budget, personnel, whatever in the
17:24
Speaker 2: executive branch.
17:26
Speaker 3: Right. Yeah, I agree with you. That's and part of
17:28
Speaker 3: that argument is being advanced, in part by relying on
17:33
Speaker 3: that immunity decision from last summer that we were just
17:35
Speaker 3: speaking about and reading certain lines in Chief Justice Roberts's
17:40
Speaker 3: majority opinion. Very very expansively right, So on this expansive understanding,
17:45
Speaker 3: you know, if it prevailed, then you know, the courts
17:48
Speaker 3: would be endorsing this broad theory of sweeping executive power
17:52
Speaker 3: that is almost uncheckable by law. I don't think the
17:55
Speaker 3: courts ultimately are going to endorse the broadest version of
17:59
Speaker 3: that theory across all of the subject matter areas that
18:01
Speaker 3: Trump has been acting in anyway. The question then would be,
18:05
Speaker 3: is he going to say that the same kind of
18:07
Speaker 3: theory of broad power gives him a prerogative to go
18:10
Speaker 3: against the courts? You're right. Last week he sort of
18:12
Speaker 3: disclaimed that idea. Then over the weekend on social media
18:16
Speaker 3: he posted something. I think. The line is something like
18:19
Speaker 3: he who saves the country breaks no law. And this
18:22
Speaker 3: is a line that associated I understand with Napoleon. That
18:26
Speaker 3: sounds like, you know, the assertion of a progative to
18:29
Speaker 3: operate above the law. He thinks it's what's necessary to
18:32
Speaker 3: quote unquote save the country. So I think Trump is
18:35
Speaker 3: sort of, you know, at least in his public statements
18:37
Speaker 3: on both sides of the issue at this point. Again,
18:40
Speaker 3: at the end of the day, I don't think there's
18:42
Speaker 3: going to be you know, open defiance of court orders.
18:46
Speaker 3: But I do think that we're in a danger zone
18:48
Speaker 3: along those lines, unlike any we've been in for at
18:51
Speaker 3: least many decades.
18:52
Speaker 2: When was the last time we were in a zone
18:55
Speaker 2: like this? Do you think?
18:56
Speaker 3: Well? During the nixt administration, there was of course a
18:59
Speaker 3: question about whether Nixton would obey the court order directing
19:04
Speaker 3: that he turn over the White House tapes. And he
19:07
Speaker 3: knew that in obeying that order that he was almost
19:10
Speaker 3: guaranteeing the end of his presidency. And I think there
19:13
Speaker 3: are questions about whether he would. He ultimately did so.
19:15
Speaker 3: He ultimately complied with the will of the courts. But
19:18
Speaker 3: that showdown, if you want, was the last time we
19:21
Speaker 3: got this close to the precipice.
19:22
Speaker 2: And so you had Trump talking about Napoleon, you had
19:26
Speaker 2: Elon Musk talking about Genghis Khan. I mean, we don't
19:29
Speaker 2: know how much power is being given to Musk, who's
19:31
Speaker 2: not elected, And now they're saying that he's not even
19:34
Speaker 2: the head of Doze, that he's a special advisor to Trump.
19:37
Speaker 3: Yeah, it's the peculiar arrangement, to put it mildly. On
19:40
Speaker 3: the one hand, you know these reports are to be believed.
19:43
Speaker 3: Bosk and other folks working with him in this doge thing,
19:47
Speaker 3: are being granted access to some of the most sensitive
19:51
Speaker 3: information held within the executive branch, including very sensitive personal
19:55
Speaker 3: information about Americans across the country. Entirely unclear to what
19:59
Speaker 3: use did they might put that information, but it's concerning,
20:02
Speaker 3: to say the least. And on the other hand, the
20:04
Speaker 3: government is sort of disclaiming that Musk has any actual
20:08
Speaker 3: governmental authority whatsoever. I think in filing or hearing yesterday
20:12
Speaker 3: there was a claim that, you know, he's not any
20:14
Speaker 3: kind of officer of the United States, he's just, as
20:17
Speaker 3: you say, a kind of advisor without authority. That is
20:20
Speaker 3: a peculiar arrangement, to put it mildly. If in fact
20:23
Speaker 3: he has no formal authority, he at least has great,
20:26
Speaker 3: great influence and is being granted access to essentially any
20:30
Speaker 3: part of the government that he wants to be given
20:32
Speaker 3: access to. We haven't seen anything like this before. Every
20:35
Speaker 3: White House has, you know, senior advisors whose roles you know,
20:39
Speaker 3: might be described in different ways, and maybe there are
20:41
Speaker 3: people plucked from the business world or from academia or whatever,
20:45
Speaker 3: but that obviously is not what's going on with Musk
20:48
Speaker 3: and his doge minion. One of the challenges here is,
20:52
Speaker 3: like any legal system, our legal system contains laws, principles
20:56
Speaker 3: and rules that in many respects our responses to past problems. Well,
21:02
Speaker 3: we've never had a situation like this before, and so
21:04
Speaker 3: our laws are not well suited to deal with the
21:07
Speaker 3: potential threats of abuse that come from basically just you know,
21:11
Speaker 3: unlocking the doors to any room within the executive branch
21:15
Speaker 3: and letting Elon Musk breeze right in.
21:17
Speaker 2: And there's this continuing turmoil at the Justice Department over
21:22
Speaker 2: the order to drop the corruption case against New York
21:26
Speaker 2: City Mayor Eric Adams, where seven prosecutors resigned rather than
21:31
Speaker 2: do that. What does that say about the Justice Department
21:35
Speaker 2: where no disagreement is allowed even if an order seems
21:39
Speaker 2: to fly in the face of the law.
21:43
Speaker 3: Yeah, it is very concerning. I agree with you. I mean,
21:46
Speaker 3: I think there is a sense that you know, ultimately
21:49
Speaker 3: within the Justice Department, the Attorney generals at the top
21:52
Speaker 3: of the agency and does have the authority to decide
21:56
Speaker 3: what actions will be taken by the department, and if
21:59
Speaker 3: low or level officials don't like that, they have the
22:02
Speaker 3: option to resign. But it's not like every member of
22:05
Speaker 3: the Justice Department has a sort of unilateral ability to
22:08
Speaker 3: sort of state their disagreement and to change department policy
22:12
Speaker 3: on that basis. But one thing that has made the
22:14
Speaker 3: Department of Justice the great institution that it is is
22:17
Speaker 3: that we expect a very high degree of professionalism on
22:20
Speaker 3: the part of the attorneys serving there, and we expect
22:22
Speaker 3: there to be disagreement and debate and even encourage that
22:26
Speaker 3: to try and make sure that the government arrives at
22:29
Speaker 3: the best position in individual cases and also on larger
22:32
Speaker 3: policy questions. That's the opposite of what's being insisted upon here.
22:36
Speaker 3: There's a demand from the Acting Deputy Attorney General Emil Bova,
22:42
Speaker 3: seemingly just for blind adherents, no matter the merits or
22:46
Speaker 3: lack of merits of what the government is trying to do.
22:49
Speaker 3: And then if you look at the substance of the matter,
22:51
Speaker 3: although Bouve and his memo to the Acting United States
22:54
Speaker 3: Attorney here in Manhattan sort of claimed to the contrary,
22:58
Speaker 3: it certainly looks like a quid quote. It looks like
23:01
Speaker 3: what he's directing is that the charges against Adams be
23:06
Speaker 3: dismissed in return for Adams's vigorous cooperation with the Trump
23:10
Speaker 3: administration and enforcing federal immigration laws here. And then the
23:14
Speaker 3: fact that the memo says, oh, actually we're dismissing these
23:18
Speaker 3: charges without prejudice, so they could be brought again at
23:21
Speaker 3: a later time. Well, that, as others have observed, is
23:24
Speaker 3: like a sort of damageleaves just hanging above Adams. And
23:27
Speaker 3: if he doesn't comply, what do we think might happen here? Again,
23:31
Speaker 3: Bouvet disclaims there's any quid pro quo like this going on,
23:34
Speaker 3: but it certainly looks like one. And I think that
23:37
Speaker 3: was a big part of what was so concerning to
23:39
Speaker 3: the acting US Attorney, as she explained in her letter
23:43
Speaker 3: of resignation. That plus the fact that on the merits,
23:46
Speaker 3: according to her, the evidence that the government has of
23:50
Speaker 3: Mayor Adams' skills, not only of the statues he's been
23:54
Speaker 3: charged with violating, but apparently other charges that might be
23:56
Speaker 3: brought as well, is a really really strong case. And
23:59
Speaker 3: she said these circumstances, if it doesn't serve justice, it's
24:03
Speaker 3: not right in any way for these charges to be dismissed.
24:07
Speaker 3: It looks like special favors being dispensed as a way
24:11
Speaker 3: of coercing a local government official into cooperating with a
24:16
Speaker 3: policy agenda of the new presidential administration, and that is
24:20
Speaker 3: just an abuse of the criminal justice system and really
24:24
Speaker 3: a flouting of the rule of law that everyone should
24:27
Speaker 3: be very concerned about.
24:28
Speaker 2: Thanks so much for joining me on the show. I
24:30
Speaker 2: really appreciate your analysis. That's Professor Trevor Morrison of NYU
24:34
Speaker 2: Law School coming up next. Fired inspectors general sue this
24:39
Speaker 2: is Bloomberg. In an unprecedented move, four days after Donald
24:44
Speaker 2: Trump returned to office last month, the White House notified
24:48
Speaker 2: as many as seventeen inspectors general in similarly terse emails
24:53
Speaker 2: that they were being terminated because of quote changing priorities.
24:58
Speaker 2: Last Wednesday, eight of those ousted inspectors general filed a
25:02
Speaker 2: lawsuit against the Trump administration, saying the terminations were unlawful
25:07
Speaker 2: and unjustified. My guest is Diana Shaw, a partner at
25:12
Speaker 2: Wilie Rhyan. She was the acting Inspector General at the
25:16
Speaker 2: State Department from twenty twenty to twenty twenty four. Diana,
25:20
Speaker 2: a lot of people are not familiar with what an
25:23
Speaker 2: inspector general does, so tell us sure so.
25:26
Speaker 4: An inspector general is the statutorily created position within the
25:32
Speaker 4: federal government. It sits within a federal agency, and it
25:36
Speaker 4: is the independent watchdog for that agency, passed with conducting
25:42
Speaker 4: oversight audits investigations to ensure the efficiency and effectiveness of
25:47
Speaker 4: that agency.
25:48
Speaker 2: Who appoints inspector generals.
25:50
Speaker 4: It can happen in two ways. That half of the
25:53
Speaker 4: inspectors general and the federal government are presidentially appointed and
25:56
Speaker 4: Senate confirmed, and the other half are appointed by their agency.
26:02
Speaker 4: This is for designated federal agencies or entities, and so
26:05
Speaker 4: it's either by a board or a commission that they
26:07
Speaker 4: would be appointed.
26:08
Speaker 2: And they don't report to the president, do they They don't.
26:11
Speaker 4: They serve at the pleasure of the president, but they
26:14
Speaker 4: don't report to the president. They have a dual reporting relationship,
26:19
Speaker 4: so they are operating under the general supervision of usually
26:22
Speaker 4: the department head of whatever their parent agency is, but
26:26
Speaker 4: they also have a reporting obligation to Congress as well.
26:29
Speaker 4: At the same time, no individual can direct their work,
26:33
Speaker 4: so nobody can tell them what work to do, what
26:36
Speaker 4: work not to do, and they really can't be fired
26:39
Speaker 4: or disciplined, although they can be let go by the president,
26:43
Speaker 4: but with some limitations under the law.
26:46
Speaker 2: President Trump fired as many as seventeen inspectors General four
26:52
Speaker 2: days after returning to the White House, and the email
26:56
Speaker 2: said they were being terminated because of changing priory. How
27:01
Speaker 2: unusual is that?
27:03
Speaker 4: So this has never happened before. This is unprecedented. I
27:07
Speaker 4: believe the only other historical reference point we have is
27:11
Speaker 4: during the Reagan administration. This was the first administration after
27:16
Speaker 4: the founding of the Inspector General Act, and President Raygan
27:20
Speaker 4: did fire the Inspectors general at that time, although he did,
27:24
Speaker 4: I think, on the basis of some very strong advice,
27:26
Speaker 4: end up hiring many of them back. But this is
27:29
Speaker 4: really unprecedented, and.
27:31
Speaker 2: Two of the plaintiffs had been nominated to Inspector General
27:34
Speaker 2: roles by Trump in his first term. Is there any
27:38
Speaker 2: speculation about why they were fired?
27:41
Speaker 4: Well, as noted, several of the IG's were Trump appointees,
27:46
Speaker 4: Some had been in position for a long time, some
27:48
Speaker 4: were brand news, some were known as you know, sort
27:51
Speaker 4: of aggressive, some not so. Really, it was perplexing for
27:55
Speaker 4: those looking across that list to try to understand whether
27:58
Speaker 4: there was some kind of a cohesive theme there. I
28:01
Speaker 4: think what I saw analyzing that list is it does
28:05
Speaker 4: look like, with the exception of two, he really did
28:08
Speaker 4: sort of sweep the cabinet level agencies. The two exceptions
28:12
Speaker 4: were Department of Justice and Department of Homeland Security, and
28:16
Speaker 4: then there were smattering of others as well.
28:19
Speaker 2: As you mentioned, presidents can fire inspectors general, but there
28:23
Speaker 2: are certain rules tell us about them.
28:26
Speaker 4: So there were prior to the first administration relatively few
28:31
Speaker 4: parameters set on what the president could and couldn't do.
28:34
Speaker 4: But following the terminations of igs under the first Trump administration,
28:39
Speaker 4: the law was actually amended. The IGC was amended after
28:43
Speaker 4: the first administration to put some additional guardrails in place,
28:47
Speaker 4: and so under these new amendments, the president is required
28:50
Speaker 4: to provide thirty day notice to Congress of his intention
28:54
Speaker 4: to remove an IG, and that notice has to include
28:58
Speaker 4: case specific, substantive, case specific reasons for the firing of
29:02
Speaker 4: each of those IGS. And if the president wants to
29:06
Speaker 4: immediately put an IG on administrative leave while that thirty
29:09
Speaker 4: day clock is running, he's supposed to articulate that that
29:13
Speaker 4: IG is actually a workplace threat. In this case, none
29:18
Speaker 4: of those provisions were complied with, and so it's really
29:22
Speaker 4: a question whether those amendments have any teeth or not.
29:26
Speaker 4: That's really what's at stake here, and this is the
29:29
Speaker 4: first time those amendments are being tested.
29:31
Speaker 2: So in his first administration, Trump replaced multiple inspectors general.
29:38
Speaker 2: What happened with those firings in twenty twenty.
29:41
Speaker 4: So those removals, actually I lived through one of them.
29:45
Speaker 4: That's how I became an acting inspector general. He removed
29:48
Speaker 4: my inspector General, Steve Lennock at the Department of State.
29:52
Speaker 4: In that case, he put them immediately on administrative leave.
29:55
Speaker 4: If they were inspectors general, they were on administrative leave
29:59
Speaker 4: for thirty days and then terminated after that point. In
30:03
Speaker 4: the instance of the Department of Defense, individual he was
30:06
Speaker 4: the acting inspector General, and so in that case, the
30:09
Speaker 4: President simply appointed another person in that person's stead, and
30:12
Speaker 4: so he no longer served in that capacity. Similarly, that's
30:16
Speaker 4: what happened at HHS.
30:18
Speaker 2: So eight of the inspectors general who were fired recently
30:21
Speaker 2: have filed a lawsuit saying the terminations were unlawful and unjustified.
30:26
Speaker 2: Tell us more about their lawsuits.
30:29
Speaker 4: Sure, So they're essentially looking to uphold the new amendments
30:33
Speaker 4: of the ig Act and stating that the process by
30:36
Speaker 4: which the President exercised his authority to remove them was
30:40
Speaker 4: inconsistent with the law, and that the law requires thirty
30:44
Speaker 4: day notice to Congress, and it requires him to articulate
30:48
Speaker 4: case specific substance of rationale for the removal of each
30:51
Speaker 4: and every one of them. And so they are claiming
30:55
Speaker 4: that he has exceeded his authority in the manner in
30:57
Speaker 4: which he's removed them, and they're seeking basically injunctive relief
31:01
Speaker 4: to allow them to basically return to their positions as
31:06
Speaker 4: the court adjudicates the merits of their claim, and ultimately
31:09
Speaker 4: I think they would be looking to return to their jobs,
31:12
Speaker 4: and I guess have the president follow the course of action,
31:16
Speaker 4: I mean, it sort of begs the question what is
31:17
Speaker 4: the ultimate outcome here? I mean, even if they get
31:20
Speaker 4: everything they want, the President could then still just provide
31:24
Speaker 4: the thirty day notice. But I think, you know, there's
31:27
Speaker 4: arguably two benefits even if the outcome in the end
31:30
Speaker 4: is nevertheless the same. And that's one. It really you know,
31:34
Speaker 4: tests whether the amendments to the law have teeth, and
31:37
Speaker 4: if they're victorious and show that in fact these amendments
31:40
Speaker 4: do matter and they are the law, there's you know,
31:43
Speaker 4: arguably value in that. But also I would expect that
31:47
Speaker 4: if the President has to actually articulate a basis for
31:50
Speaker 4: each of their firings, that gives them something to argue against, right,
31:54
Speaker 4: that gives them potentially some spodder to use to challenge
31:58
Speaker 4: their firings.
31:59
Speaker 2: Even first there, so a DC federal judge refused to
32:03
Speaker 2: grant the emergency request for their immediate reinstatement, so they
32:09
Speaker 2: lost the first round there. But let's say the President
32:13
Speaker 2: provides the notice and the explanation. Is it then up
32:16
Speaker 2: to Congress to say, no, we don't think that's true,
32:20
Speaker 2: or is it just sort of a notice provision that
32:23
Speaker 2: has no teeth to it.
32:25
Speaker 4: Well, it's a good question, I think based on the
32:29
Speaker 4: legislative history and the hearings around this, I think the
32:32
Speaker 4: hope was that this thirty day period would give Congress
32:35
Speaker 4: the opportunity to sort of parse through the rationale and
32:39
Speaker 4: if it didn't pass the smell test, it would give
32:41
Speaker 4: them time to exercise influence and pressure. But ultimately, there's
32:46
Speaker 4: nothing that I see in the law that actually gives
32:48
Speaker 4: them the authority to veto the president's authority to remove
32:53
Speaker 4: an IG. So I think it's sort of a soft
32:55
Speaker 4: power play, but would give them the opportunity to at
32:59
Speaker 4: least voice their concern and potentially mount kind of an
33:02
Speaker 4: influence campaign to potentially try to cause a course correction
33:07
Speaker 4: if they felt very strongly that it wasn't a justified firing.
33:11
Speaker 2: The former Inspector General of the Department of Veterans Affairs
33:14
Speaker 2: Toll CBS. My only guess could be there trying to
33:18
Speaker 2: impact the independence that IGS have because it makes no sense.
33:24
Speaker 2: Can you make sense of it from you know, which
33:26
Speaker 2: departments were actually targeted?
33:30
Speaker 4: Well, you know, again looking at who was removed, and
33:33
Speaker 4: that it seems to have been a wiping of the
33:35
Speaker 4: slate queen of the cabinet level agencies. It does appear
33:39
Speaker 4: as though the president wants the opportunity to nominate his
33:43
Speaker 4: own nominees for those cabinet level positions, although there are
33:46
Speaker 4: some others, as I said, not within that group. But honestly,
33:51
Speaker 4: I think it's you know, potentially too soon to reach
33:53
Speaker 4: a conclusion about what the president's intentions are. I think
33:57
Speaker 4: what it really comes down to is who is nominated
34:01
Speaker 4: in those positions, right, the individuals that hold those positions
34:05
Speaker 4: are supposed to be nominated, not on the basis of
34:08
Speaker 4: any kind of political affiliation. Solely on the basis of
34:11
Speaker 4: the criteria of their qualifications for their role, their audit
34:16
Speaker 4: experience or investigative experience. And so you know, in theory,
34:20
Speaker 4: if people with those qualifications are nominated into those positions
34:25
Speaker 4: and are filling those positions and performing those duties in
34:29
Speaker 4: a nonpartisan a political way, then you know that mission
34:33
Speaker 4: can be carried forward appropriately. And until we see that,
34:38
Speaker 4: we won't really know what's to come next. But what
34:40
Speaker 4: I can say on behalf of my former colleagues is
34:43
Speaker 4: I've not ever worked with a better group of people
34:46
Speaker 4: who were more committed to the mission. So it really
34:49
Speaker 4: is a loss for the community that such incredible people
34:52
Speaker 4: are no longer in those roles, and that so much
34:54
Speaker 4: talent and commitment has been lost.
34:57
Speaker 2: Trump is asking the Supreme Court to intervene because he
35:00
Speaker 2: wants to fire the head of the independent agency that
35:05
Speaker 2: protects whistleblowers. When the lower court judge Amy Burman Jackson
35:12
Speaker 2: issued a restraining order on the firing, she said that
35:17
Speaker 2: it plainly went against US law because the administration didn't
35:20
Speaker 2: provide any reason, even though federal law says the person
35:24
Speaker 2: in that position could only be removed for inefficiency, neglect
35:27
Speaker 2: of duty or malfeasance in office. Could a decision here
35:33
Speaker 2: have an impact or reverberations for the Inspector General firings?
35:40
Speaker 4: I think potentially, I mean from a morale perspective, it
35:43
Speaker 4: certainly could you know, bolster the will to keep pushing
35:47
Speaker 4: in the courts. I mean, I do think there are
35:50
Speaker 4: some important distinguishing factors here. Partly the language that you
35:54
Speaker 4: just cited the Special Council can only be removed under
35:58
Speaker 4: those specific circum stances, which are much stronger than the
36:02
Speaker 4: language in the Inspector General Act for the removal of IG's. Also,
36:08
Speaker 4: I think, you know, the way the case law has
36:10
Speaker 4: developed around the Special Council and the removal of agency heads.
36:14
Speaker 4: The Special Council has argued that it has a much
36:17
Speaker 4: narrower role in terms of government, whereas Inspectors General are
36:21
Speaker 4: operating within cabinet agencies. And so you know, that could
36:25
Speaker 4: end up being an important distinguishing factor. But nevertheless, sort
36:29
Speaker 4: of very similar missions and so there's definitely, you know,
36:33
Speaker 4: some ground there to draw comparisons. And I would think
36:37
Speaker 4: if Hampton Dellager is successful that that would be something
36:41
Speaker 4: that they would be looking to to add some heft
36:44
Speaker 4: to their motions and their efforts to challenge their own firings.
36:47
Speaker 2: Thanks so much for joining me today. That's Diana Shaw
36:50
Speaker 2: of Wilie Rhine and that's it for this edition of
36:53
Speaker 2: The Bloomberg Law Show. Remember you can always get the
36:56
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36:59
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