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Trump and Allies Ramp Up Attacks on Judges · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grosseol from Bloomberg Radio.
0:08
Speaker 2: President Donald Trump's blitz of sweeping, aggressive, and often unlawful
0:14
Speaker 2: executive orders has hit only one roadblock so far, the
0:18
Speaker 2: federal courts. As Trump and Elon Musk slash government agencies,
0:23
Speaker 2: freeze funding, and oust federal workers, the Republican Congress has
0:28
Speaker 2: just gone along. In fact, House Speaker Mike Johnson has
0:32
Speaker 2: said the court should just let Trump do what he wants.
0:35
Speaker 1: And I think that the courts should take a step
0:38
Speaker 1: back and allow these processes to play out. What we're
0:41
Speaker 1: doing is good and right for the American people.
0:44
Speaker 2: It's been federal judges who've put the brakes on many
0:47
Speaker 2: of Trump's early moves to freeze federal grants and loans
0:51
Speaker 2: and birthright citizenship, and remove transgender soldiers from the military.
0:57
Speaker 2: Trump has a history of attacking judges who rule against him,
1:01
Speaker 2: and he remains consistent in that way, blaming judges for
1:04
Speaker 2: slowing down his agenda.
1:06
Speaker 3: We want to weed out the corruption, and it seems
1:09
Speaker 3: hard to believe that a judge could say, we don't
1:11
Speaker 3: want you to do that. Well, so maybe we have
1:14
Speaker 3: to look at the judges because it's very serious. I
1:18
Speaker 3: think it's a very serious violation.
1:20
Speaker 2: A potential showdown between the administration and the judiciary was
1:25
Speaker 2: averted for now when Trump agreed to comply with court orders.
1:29
Speaker 3: Yeah, the answer is I always abide by the courts,
1:33
Speaker 3: always abide by him, and will appeal. But appeals take
1:36
Speaker 3: a long time.
1:38
Speaker 2: My guest is former federal judge Paul Grimm, director of
1:41
Speaker 2: the Bald Judicial Institute at Duke Law School. So looking
1:45
Speaker 2: at the big picture right now, you have judges being
1:49
Speaker 2: attacked by Trump allies, and even the House Speaker saying,
1:53
Speaker 2: I think the court should take a step back. Where
1:56
Speaker 2: are we here?
1:58
Speaker 4: I think that we're at a place where everybody who
2:02
Speaker 4: believes that the firewalls that the Constitution imposes on all
2:08
Speaker 4: three branches of government to make sure that no one
2:11
Speaker 4: branch exercises successive authority in a way that's unaccountable under
2:15
Speaker 4: the law, that anybody who believes in this should be concerned.
2:18
Speaker 4: We know that for well over a decade that the
2:23
Speaker 4: public's perception of the courts has been declining. This is
2:27
Speaker 4: due to a lot of reasons. Part of it is
2:28
Speaker 4: that public figures and public officials from both sides of
2:32
Speaker 4: the political spectrum feel increasingly comfortable attacking individual judges for
2:37
Speaker 4: their decisions when the judges were just trying to do
2:40
Speaker 4: what their job was. It's created by the fact that
2:43
Speaker 4: social media is where a lot of people get their information,
2:46
Speaker 4: and a lot of the information on social media that
2:48
Speaker 4: deals with the courts is by people who may be
2:50
Speaker 4: well intentioned but misinformed, or maybe not even well intentioned
2:54
Speaker 4: and are trying to miss one. Judges are traditionally reluctant
2:58
Speaker 4: to engage with the public. They can't talk about their cases,
3:01
Speaker 4: and that reluctance sort of spills over to make them
3:04
Speaker 4: sometimes more cautious than they should be in terms of
3:07
Speaker 4: communicating to the public. Most of the public has no
3:09
Speaker 4: contact with the digital system. They've never been in the courts,
3:11
Speaker 4: They've never had an engagement with a judge. The media
3:14
Speaker 4: portrayal of judges is not particularly favorable in movies and
3:18
Speaker 4: on TV, and the judges don't speak out for themselves,
3:21
Speaker 4: So who does well? The ABA ethics under the can
3:25
Speaker 4: and eight of the Ethics Model Rules, Commentary three says
3:30
Speaker 4: that lawyers should speak up to defend the system. But
3:33
Speaker 4: when the ABA comes out with a statement or the
3:36
Speaker 4: American College of travelers who does that reach. So we're
3:39
Speaker 4: at a point now where we are a highly polarized
3:43
Speaker 4: society and we are highly divided over many things. We
3:48
Speaker 4: also have a Congress which is highly politicized and highly
3:53
Speaker 4: polarized and does not function the way in which anybody
3:56
Speaker 4: who thinks the legislatures should function thinks is functioning well.
4:00
Speaker 4: And so when Congress is sort of paralyzed by its
4:04
Speaker 4: own polarization, nature reports a vacuum. Who steps into that
4:08
Speaker 4: vacuum in power? It's going to be the president, whether
4:11
Speaker 4: it's a democratic president or a publican president. And the
4:15
Speaker 4: current president has a very specific agenda and very clear
4:19
Speaker 4: ideas about how he wants to proceed, and a very
4:22
Speaker 4: muscular view of the powers of the president needs to
4:26
Speaker 4: be the other branches. And so in that environment, with
4:29
Speaker 4: the number of executive orders and actions that have been
4:33
Speaker 4: initiated in the last month, they have gone into areas that,
4:37
Speaker 4: you know, maybe breaking tradition in terms of what presidents
4:40
Speaker 4: have done, seem to be animated by a very broad
4:43
Speaker 4: view of the authority of the president, and that leads
4:46
Speaker 4: to losses, and the losses lead to cases that have
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Speaker 4: to be started by judges and the judges rule, and
4:51
Speaker 4: then of course if they rule in a way that
4:54
Speaker 4: people who were in favor of the government action that
4:58
Speaker 4: was being challenged. We see this attack upon the judges
5:02
Speaker 4: in a way that is increasingly problematic. It is personal.
5:08
Speaker 4: It calls them things like corrupt or traders, or that
5:12
Speaker 4: they've committed treason. It promotes or implicitly encourages violent It
5:16
Speaker 4: has caused threat and by the way, these are comments
5:19
Speaker 4: that have been raised by people who are both Democrats
5:22
Speaker 4: and Republicans. So I think that we are at a
5:25
Speaker 4: very significant point in our country where the scope and
5:30
Speaker 4: the tone seems to have gotten so extreme, and we
5:34
Speaker 4: have to take all reasonable steps that we can take
5:37
Speaker 4: to speak out in defense of our constitutional structure and
5:41
Speaker 4: to condemn unfair attacks on the judiciary as an institution
5:47
Speaker 4: or individual judges.
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Speaker 2: It seems like one of the worst aggressors is Elon Musk, who,
5:54
Speaker 2: by the way, has more than two hundred million followers
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Speaker 2: on x. I mean, he has called several judges corrupt,
6:01
Speaker 2: call for their impeachment, and he's also reposted photos of
6:05
Speaker 2: at least three judges who ruled against Trump policies. And
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Speaker 2: I'm wondering in light of the fact that the US
6:13
Speaker 2: Marshal Service says that serious threats to federal judges have
6:17
Speaker 2: doubled since twenty twenty one, whether anything else should be done,
6:22
Speaker 2: whether there should be more security, I think.
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Speaker 4: The simple answer is yes. First of all, what's the
6:27
Speaker 4: old expression that the best protection against tate speech is
6:30
Speaker 4: more speech. We need more voices talking about this, all
6:33
Speaker 4: reasonable steps that we can take to speak out in
6:36
Speaker 4: defense of our constitutional structure and why it's important to
6:41
Speaker 4: let it operate the way that it operates, and to
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Speaker 4: call out and to condemn unfair attacks on the judiciary
6:54
Speaker 4: as an institution or on individual judges. I would love
7:01
Speaker 4: to see an open letter signed by retired judges because
7:04
Speaker 4: they could speak more freely. Professors, faith leaders, to the press,
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Speaker 4: business leaders. Can you imagine spending a billion dollars on
7:13
Speaker 4: a new pharmaceutical and then someone steals the information on it,
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Speaker 4: It gets your intellectual property and gets a judgment, and
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Speaker 4: someone says, well, I'm just going to ignore it that judgment.
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Speaker 1: We don't care what that judge said.
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Speaker 4: Signed by all of these people talking about the importance
7:25
Speaker 4: of these core principles separation of powers, rule of law,
7:29
Speaker 4: judicial independence, and the importance of recognizing that the rule
7:34
Speaker 4: of law only functions when the public is willing to
7:37
Speaker 4: accept the decision that they disagree with. And when you
7:40
Speaker 4: have someone that has as big a megaphone and can
7:42
Speaker 4: reach millions and millions of people and post pictures where
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Speaker 4: any reasonable person would say that the result of that
7:50
Speaker 4: is to focus threats of harm or coercion or intimidation
7:55
Speaker 4: or pressure on a government official, any government official trying
7:58
Speaker 4: to do their job. That's something that we should say
8:01
Speaker 4: is going too far. That's beyond fair criticism. That's an
8:05
Speaker 4: attack on an institution. And we need to have every
8:10
Speaker 4: important component of our society that believes that the framework
8:15
Speaker 4: of our government is important to maintain, to speak out
8:19
Speaker 4: to say that that level of personal attacks is wrong
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Speaker 4: and cannot be tolerated.
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Speaker 2: There's been a lot of discussion about whether or not
8:27
Speaker 2: we'll reach the point where the Trump administration decides to
8:31
Speaker 2: defy a court order. But yesterday, after taking some shots
8:36
Speaker 2: at Judge Paul Engelmeyer, who had temporarily blocked Musk's team
8:41
Speaker 2: from accessing some Treasury Department information, Trump said he will
8:46
Speaker 2: obey court orders. Should that give us some comfort that
8:49
Speaker 2: a constitutional crisis can be avoided.
8:53
Speaker 4: Well, it's better than saying that he's not going to fall.
8:56
Speaker 4: I'll say that what I think is important is to
8:59
Speaker 4: try to reach the public because when you have social
9:02
Speaker 4: media hitting people, you know, do we think that we're
9:04
Speaker 4: going to personally dissuade someone with as strong a will
9:08
Speaker 4: as some of the people who've spoken out against the judges.
9:11
Speaker 4: Are we going to persuade them? Perhaps not really, but
9:15
Speaker 4: if we have enough voices joining in saying this is
9:17
Speaker 4: why this kind of talk is dangerous and it should
9:20
Speaker 4: not be engaged in it to help change minds, and
9:23
Speaker 4: I like to look at it as an opportunity where
9:25
Speaker 4: we should be trying to generate light but not heat.
9:29
Speaker 4: And let me give you an example of that. You've
9:31
Speaker 4: got someone that comes out and say, well, we don't
9:33
Speaker 4: think any judge should be in favor of corruption. Okay,
9:37
Speaker 4: well what judge is in favor of corruption? Well, if
9:40
Speaker 4: you said that the decision that was issued by Judge
9:44
Speaker 4: Inglemeyer was a judge that was in favor of corruption,
9:49
Speaker 4: then what I would say is have you read that decision?
9:51
Speaker 4: And I have. Judge Inglemeyer was sitting as a chamber's
9:55
Speaker 4: judge when a temporary respanding order came in and it
9:59
Speaker 4: was the next part say motion for restraining order, which
10:02
Speaker 4: the rules allow, and he was not even a judge
10:05
Speaker 4: assigned to the case. That's judge bargains and he had
10:08
Speaker 4: to act on that, and he issued a five day pause.
10:11
Speaker 4: He said, for five days, i am ordering that the
10:14
Speaker 4: doged adulge people can't have access to this information because
10:19
Speaker 4: the filing show that they may not have had background checks,
10:24
Speaker 4: and they may not have had training in preventing hacking,
10:27
Speaker 4: and millions of people's confidential financial information may be exposed
10:31
Speaker 4: and there may be a danger of hacking. And so
10:33
Speaker 4: for five days, I'm ordering that only Treasury people who
10:36
Speaker 4: have these safe graudu and protections in their training can
10:39
Speaker 4: have access to it. It was issue on the eighth.
10:41
Speaker 4: The government was given until the eleventh, and the plaintiffs
10:44
Speaker 4: nineteen attorneys general were given until the fourteenth. And now
10:48
Speaker 4: it's going to judge bargain. You'll decide on the merit.
10:50
Speaker 4: If you put it that way, say what exactly did
10:52
Speaker 4: the judge do that show that the judge was in
10:54
Speaker 4: favorite of corruption And the answer is no, one in
10:56
Speaker 4: the right mind, if they look at those facts, would
10:59
Speaker 4: say that there is a legitimate basis for criticizing what
11:02
Speaker 4: that judge did. But how do you direct the narrative
11:06
Speaker 4: so that people will take a step back and say, oh,
11:09
Speaker 4: that's what happened. I mean, if you took a poll
11:11
Speaker 4: right now and ask people, you know, if they knew
11:14
Speaker 4: what it was the bothly this judge did, that, you
11:16
Speaker 4: would get any kind of an accurate response. Answers probably know.
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Speaker 4: So how do we have that dialogue? And we can't
11:21
Speaker 4: have that dialogue unless institutions and individuals who still command
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Speaker 4: respect within the community speak out and say we've gone
11:28
Speaker 4: too far, because that's only way we can change opinions.
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Speaker 2: Coming up next, for the first time, a judge says
11:35
Speaker 2: that Trump administration failed to obey an order. Remember you
11:39
Speaker 2: can always get the latest legal news by listening to
11:42
Speaker 2: our Bloomberg Law podcast. You can find them wherever you
11:45
Speaker 2: get your favorite podcasts. I'm June Grosso and you're listening
11:48
Speaker 2: to Bloomberg.
11:52
Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.
11:57
Speaker 2: I've been talking to former federal judge Paul Grimm, director
12:01
Speaker 2: of the Bolt Judicial Institute at Duke Law School, about
12:04
Speaker 2: recent attacks by Trump allies on judges because of their rulings,
12:09
Speaker 2: blocking some Trump orders, at least temporarily. So on Monday,
12:13
Speaker 2: for the first time, a judge said that the Trump
12:16
Speaker 2: administration disobeyed an order that was Rhode Island Judge John
12:21
Speaker 2: McConnell Junior that White has had defied his order to
12:24
Speaker 2: release billions of dollars in federal grants. So the White
12:28
Speaker 2: House is appealing that. But what can a judge do
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Speaker 2: if an administration defies an order? I mean, does a
12:35
Speaker 2: judge have any real power?
12:38
Speaker 4: Well, it's interesting. Judges can act in the way in
12:41
Speaker 4: which judges have authority to act at a circumstances. They
12:44
Speaker 4: can find an individual that has disobeyed an order that
12:47
Speaker 4: was subject to their jurisdiction, or an entity like a
12:50
Speaker 4: government agency in contempt. They can impose monetary fines for
12:56
Speaker 4: contempt to try to coerce compliance with the order. If
13:01
Speaker 4: the contempt lasts long enough and raises to certain levels
13:07
Speaker 4: that constitute criminal contempt, then then they have other sanctions
13:11
Speaker 4: that they can issue as well. And the question that
13:14
Speaker 4: becomes are those tools those limited tools, but existing tools
13:18
Speaker 4: that the courts have to deal with people who are
13:20
Speaker 4: found to be in contempt and non compliant with orders.
13:23
Speaker 4: Are they likely to be effective? Well, the answers probably,
13:28
Speaker 4: in this instance, not too effective. If you held the
13:31
Speaker 4: president and contempt of court, the president would certainly appeal
13:35
Speaker 4: that and it would it would play out. It's not
13:38
Speaker 4: going to cause immediate compliance unlikely. So the tools that
13:43
Speaker 4: the judge has, you know, would range from giving another
13:46
Speaker 4: opportunity or trying to identify some way of purging the
13:50
Speaker 4: contempt and hoping that there's compliance and if not, you know,
13:54
Speaker 4: if they felt that they continued to be a contempt,
13:57
Speaker 4: to to walk down there in issue orders in that direction.
14:00
Speaker 4: Whether that would be effective, whether it be complied with
14:02
Speaker 4: is anybody's guess. So there are limited tools within the
14:06
Speaker 4: judicial arsenal that could be used. You can have a
14:08
Speaker 4: monetary find that continues to increase over a period of time,
14:12
Speaker 4: and if that doesn't induce compliance, then there are other
14:16
Speaker 4: levels of contempt that could be issued as well, But
14:19
Speaker 4: there's not a lot of arrows in the quiver at
14:21
Speaker 4: that point for they judge the issue. If you've got
14:24
Speaker 4: a government or a government figure that says I'm not
14:27
Speaker 4: going to comply.
14:29
Speaker 2: Finally, there's been a lot of talk about a constitutional
14:32
Speaker 2: crisis and the White House Press secretary said that judges
14:36
Speaker 2: are causing constitutional crisis by blocking illegally blocking Trump's agenda.
14:42
Speaker 2: So that's where they're coming from. But at what point
14:46
Speaker 2: do we say we have a constitutional crisis.
14:50
Speaker 4: Well, if you read the papers in the last week,
14:52
Speaker 4: people are already saying that we have it. But I
14:54
Speaker 4: worry that we've let the taglines run the narrative. There's
14:58
Speaker 4: a heightened level of rhetoric esteem used in the language
15:03
Speaker 4: of the people who are attacking the judicial actions and
15:05
Speaker 4: in the language of the people who are talking about
15:08
Speaker 4: whether it's the constitutional crisis. You have an alarming set
15:12
Speaker 4: of circumstances in which there have been challenges to executive action,
15:18
Speaker 4: which is very assertive and not fearful of pushing the
15:23
Speaker 4: boundaries of what past parameters of presidential authority have been.
15:31
Speaker 4: You have individuals and organizations that feel that they've been
15:35
Speaker 4: agreed by that who bring losses. You've got judges that
15:38
Speaker 4: have to respond to it. And we don't get into
15:41
Speaker 4: the details of the particular lawsuit or what the nature
15:45
Speaker 4: of the challenge to the lawsuit was, or understanding the
15:49
Speaker 4: circumstances of the judges ruling. Instead, we get immediately to
15:53
Speaker 4: this the judges are causing it. No, the executive is
15:57
Speaker 4: causing it. I would rather have this be a moment
16:00
Speaker 4: where we are trying to talk about what's the structure
16:03
Speaker 4: of this government that has served us well as well
16:06
Speaker 4: as it can for the last two hundred plus years,
16:09
Speaker 4: and that's based upon these foundational principles of separation of powers,
16:13
Speaker 4: and why separation of powers is important, why it ties
16:16
Speaker 4: into the rule of law while judicial independence is there,
16:20
Speaker 4: and that if these protections are not there, then no
16:25
Speaker 4: one's rights and liberties are safe, No business can prosper,
16:30
Speaker 4: no religion is free to be exercised the way that
16:33
Speaker 4: their believers think it should be. And so all of
16:36
Speaker 4: these things that we value as being sort of the
16:39
Speaker 4: defining nature of our rights and liberties in this country
16:42
Speaker 4: are at peril on that. And that's not a discussion
16:44
Speaker 4: that I hear. Instead, I hear slogan like a constitutional crisis. Well,
16:50
Speaker 4: I guess what I would say is, at one point,
16:53
Speaker 4: if you've got a president that that takes actions that
16:56
Speaker 4: under the law would be perceived as being beyond the
17:00
Speaker 4: order of that president to act, and if the judiciary
17:04
Speaker 4: says it's violation, and if the president disregards it, and
17:08
Speaker 4: if Congress doesn't take action, and the public itself does
17:11
Speaker 4: not feel alarmed by that, they're not bonded by that.
17:14
Speaker 4: But I guess you wake up one morning and what
17:16
Speaker 4: what we thought we were in the country is not
17:18
Speaker 4: what we are now because the people don't care. How
17:21
Speaker 4: do you get the people to care? You got to
17:22
Speaker 4: have a dialogue to talk about what's important about these
17:25
Speaker 4: government structures. Then at least make the effort to try
17:28
Speaker 4: to understand the positions of both sides in anterrational way.
17:33
Speaker 4: Set out the frozen cons so that people who are
17:36
Speaker 4: open minded at least have the opportunity to understand what's
17:40
Speaker 4: the stake and decide what they think is important. And
17:44
Speaker 4: that's what we don't see and fanning the fire by
17:47
Speaker 4: saying constitutional crisis and one side of the equations say well,
17:51
Speaker 4: you're causing it, and the other ones saying that you're
17:52
Speaker 4: pausing it. That's not advancing anything. That's just flaming the fire.
17:57
Speaker 2: A lot of talking going on and not much listening.
17:59
Speaker 2: Thanks so much for joining me on the show. That's
18:02
Speaker 2: Paul Grimm, director of the Bash Judicial Institute at Duke
18:05
Speaker 2: Law School.
18:06
Speaker 3: Because of President Donald Trump, this is a new era
18:11
Speaker 3: at the Southern border.
18:13
Speaker 2: That's Defense Secretary Pete Hegseth during a trip to the
18:16
Speaker 2: southern border last week. And it's not only a new
18:20
Speaker 2: era at the southern border, but also a new era
18:23
Speaker 2: in the military. With heg Seth executing Trump's executive orders,
18:28
Speaker 2: the lawfloorders.
18:29
Speaker 1: Of the President of the United States will be executed
18:32
Speaker 1: inside this Defense Department swiftly and without excuse.
18:36
Speaker 2: Under new rules released by heg Seth, transgender people who
18:40
Speaker 2: want to join the military will be blocked from enlistment,
18:43
Speaker 2: and transgender troops already serving will be blocked from receiving
18:48
Speaker 2: some gender related medical care from military physicians. Joining me
18:52
Speaker 2: is Josh Castenberg, a professor at the University of New
18:55
Speaker 2: Mexico Law School. He served as a lawyer and a
18:58
Speaker 2: judge in the US Air Force. Josh is the next
19:02
Speaker 2: move kicking out transgender people who are currently in the military, Well,
19:07
Speaker 2: not now.
19:08
Speaker 1: I mean that's the possibility in the future, but not now.
19:11
Speaker 1: And one thing to consider about that is that there's
19:16
Speaker 1: no right to serve in the military. There's a right
19:19
Speaker 1: to not be discriminated against on the basis of race,
19:23
Speaker 1: national origin, creed, religion, and the like. But for years,
19:28
Speaker 1: when the government argued to keep gay, openly gay and
19:32
Speaker 1: lesbian men and women out of the military, they would
19:35
Speaker 1: make the argument, there's no right to serve in the military,
19:37
Speaker 1: which is ironic because we still have a draft on
19:40
Speaker 1: the books, and so there's sort of an imbalanced The
19:43
Speaker 1: reason I bring that up is that the administration is
19:47
Speaker 1: willing to bring back on active duty service members who
19:51
Speaker 1: refuse to take the COVID vaccine, thereby violating the commander
19:56
Speaker 1: in chief, you know, President Biden, and vac orders have
20:00
Speaker 1: always been lawful since the days of George Washington in
20:04
Speaker 1: the smallpox vaccine. So they're going to let people who
20:08
Speaker 1: have the marker of disloyalty come back in, but not
20:11
Speaker 1: transgendered persons who may very well be the most loyal
20:14
Speaker 1: of American citizens are being barred from coming in. And
20:17
Speaker 1: that's the disconnect.
20:19
Speaker 2: In this memo, he said individuals with gender dysphoria who
20:23
Speaker 2: have volunteered to serve our country will be treated with
20:26
Speaker 2: dignity and respect by other members of the armed forces,
20:30
Speaker 2: but he puts severe limits on their medical care.
20:35
Speaker 1: Well, that's exactly right. And so here's another aspect of
20:40
Speaker 1: what may be nothing more than double speak, the military
20:44
Speaker 1: has to be very cautious, including the Secretary of Defense,
20:47
Speaker 1: about not engaging in something known as unlawful command influence,
20:51
Speaker 1: which not only permeates the criminal aspects of military service,
20:56
Speaker 1: meaning though you see uniform cut of military justice and
20:58
Speaker 1: court martial enforcement, but also the administrative mechanisms on giving
21:04
Speaker 1: people clearances or taking them away, and promotions, demotions, other
21:08
Speaker 1: administrative actions and the like. So what he's basically said
21:13
Speaker 1: is you're going to comply with the law that's in
21:16
Speaker 1: place of equal treatment. If he hadn't said that, there
21:19
Speaker 1: would be a slew of court cases for people who
21:22
Speaker 1: were being you who believe they were wrongfully denied promotion,
21:26
Speaker 1: or people who were being administratively discharged.
21:29
Speaker 4: And the like.
21:30
Speaker 1: So I wouldn't look at that as being something like, oh,
21:34
Speaker 1: out of the goodness of their heart or to show reasonableness.
21:37
Speaker 1: They have to do that in the unique way that
21:40
Speaker 1: military law works. However, and this is the big however,
21:44
Speaker 1: you have a president who's thought nothing about crossing the
21:47
Speaker 1: line into unlawful command influence, because even though for example,
21:52
Speaker 1: Bowie Bergdahl in the first administration was a deserter and
21:57
Speaker 1: in all likely it deserved to be court martialed commander
22:00
Speaker 1: in chief expressing an order, essentially an order that Bergdaal
22:06
Speaker 1: should be treated like a trader and given the maximum punishment,
22:10
Speaker 1: ironically coming from a president who dodged the draft when
22:13
Speaker 1: he was called into service. But there it is. So
22:16
Speaker 1: you have to have some sort of barrier against this
22:18
Speaker 1: unlawful command influence. And that's all I read into that memo.
22:22
Speaker 2: So, a twenty eight year old transgender service member is
22:26
Speaker 2: suing a lleging that she was told that she had
22:29
Speaker 2: to either be classified as a man or be separated
22:32
Speaker 2: from the military, and said she was required to leave
22:35
Speaker 2: the sleeping area for female troops and sleep by herself
22:39
Speaker 2: in a classroom. That doesn't seem to be the respect
22:42
Speaker 2: that Defense Secretary Pete Hegseth talked about. Where does this
22:46
Speaker 2: fit in?
22:47
Speaker 1: Well, it fits into the administration's policy. And you know,
22:52
Speaker 1: you have to understand, speaking from someone who has served
22:55
Speaker 1: twenty four years in uniform, the constitutional rights of service
22:59
Speaker 1: members do not have the same force and effect that
23:02
Speaker 1: the constitutional rights of ordinary citizens do. And if the
23:06
Speaker 1: military wants to have separation policies based on gender, they
23:10
Speaker 1: can do it. And it falls into the Commander in
23:13
Speaker 1: chief to do unless and this is the big un
23:16
Speaker 1: less Congress acts by passing a law to prevent it.
23:20
Speaker 1: But you know, I look at this as part of
23:23
Speaker 1: an overall sweep of the military to basically not just
23:30
Speaker 1: curb the freedoms of service members, but to shape the
23:35
Speaker 1: military ethos and culture to a point that's like out
23:40
Speaker 1: of a John Wayne green Bereat type movie, a past
23:43
Speaker 1: that never really was, but a pass that people want
23:47
Speaker 1: to embrace anyway, And it's not particularly healthy for the military.
23:52
Speaker 1: But there's more wiggle room for the Secretary of Defense
23:56
Speaker 1: and the service chiefs and the President and to do
24:01
Speaker 1: these very things than there would be, say if they
24:03
Speaker 1: tried to do it to the medical profession or university
24:06
Speaker 1: public universities across the country.
24:09
Speaker 2: Land of legal in the Human Rights Campaign filed a
24:12
Speaker 2: lawsuit last week on behalf of three senior naval officers
24:16
Speaker 2: against the Trump administration over its executive or to ban
24:20
Speaker 2: transgender people from the military.
24:22
Speaker 1: Well, what I think about it in terms of a
24:25
Speaker 1: moral issue and my prediction of it as a legal
24:27
Speaker 1: issue are two different things. Okay, I think anybody who
24:31
Speaker 1: wants to serve, who's faithfully served in the military and
24:34
Speaker 1: meets basic military standards. And I don't mean the standards
24:39
Speaker 1: that have come and gone because they're you know, situationally driven,
24:43
Speaker 1: but I mean military standards in terms of literacy, physical fitness,
24:48
Speaker 1: knowledge of what they're doing. I mean, obviously, someone who's
24:51
Speaker 1: engaged in cyber warfare and someone who's an army ranger
24:54
Speaker 1: may have different you know, there may be different standards
24:58
Speaker 1: in that, but I'm talking about basic st I'm also
25:01
Speaker 1: talking about basic standards of following orders, basic standards of
25:05
Speaker 1: you know, sort of the drug free environment and the
25:08
Speaker 1: like that have been tried and true for a long time.
25:12
Speaker 1: Someone who meets those standards ought to be able to
25:15
Speaker 1: serve because they stood up as less than one percent
25:18
Speaker 1: of the population and they put me in I believe
25:21
Speaker 1: in the country that's the moral issue. So I support
25:24
Speaker 1: LAMBDA in that, But my legal prediction is different. I
25:27
Speaker 1: think unfortunately, there's been a long line of case law
25:32
Speaker 1: that goes to the federal courts of appeal and even
25:35
Speaker 1: to the US Supreme Court, which gives the military far
25:39
Speaker 1: more discretion. The senior military establishments leaders who are civilian
25:44
Speaker 1: far more discretion to change policies that are discriminatory in
25:48
Speaker 1: nature and you know, you think about the donas don't
25:52
Speaker 1: tell policy, You think about the prohibition against gays and
25:55
Speaker 1: lesbian serving before the Clinton administration. I mean, you think
25:59
Speaker 1: about decorated service members from the Vietnam War being shown
26:03
Speaker 1: the door and the like and challenging in the courts
26:06
Speaker 1: and the court siding with the military. Well, that's the
26:09
Speaker 1: case laws. You know what we call in the law
26:11
Speaker 1: starry decisives past precedent, And I think Lambda is up
26:16
Speaker 1: against the mountain. I side with them as a moral
26:19
Speaker 1: issue on this. I just think that, and good on
26:22
Speaker 1: them for fighting the fight, but I just don't predict
26:24
Speaker 1: it's going to work in the end in the law
26:26
Speaker 1: for them. It's a matter of elections being important and
26:30
Speaker 1: this particular election setting the stage for the sort.
26:33
Speaker 4: Of thing to happen.
26:35
Speaker 2: And tell us about the arguments that the transgender service
26:39
Speaker 2: members are raising.
26:42
Speaker 1: Well, their argument is essentially that they're not being a
26:45
Speaker 1: courted equal treatment under the military. And you know, if
26:49
Speaker 1: you go back to Supreme Court cases like Chapel versus Wallace,
26:53
Speaker 1: there are all these administrative procedures that they have to
26:56
Speaker 1: go through, and the courts will do this administrative deference
27:02
Speaker 1: to the military itself, and it'll take a long time.
27:05
Speaker 1: It'll be exhausting. And I don't imagine that Lambda is
27:10
Speaker 1: going to succeed in that.
27:12
Speaker 2: I mean, it might get to the Supreme Court, which
27:15
Speaker 2: twenty nineteen allowed Trump's restrictions on transgender people in the
27:20
Speaker 2: military to take effect.
27:23
Speaker 1: Yeah, I don't have faith in the Supreme Court when
27:26
Speaker 1: it comes to the rights of service members. And it's
27:29
Speaker 1: not just not having faith in Alito and Thomas. I
27:32
Speaker 1: don't have faith in the Supreme Court across the board
27:35
Speaker 1: because of something that's been well studied but sort of
27:38
Speaker 1: faded ever since the end of the Draft, called the
27:41
Speaker 1: military difference doctrine. The military difference doctrine is something that
27:46
Speaker 1: the Court itself has never articulated, but some legal scholars
27:50
Speaker 1: have before my time, which is in matters of national security,
27:55
Speaker 1: when the government states that the military needs to be
27:58
Speaker 1: composed X, Y, and Z, the courts give extreme deference
28:02
Speaker 1: to the military, which they would never do to other institutions.
28:06
Speaker 1: And that works for a good and a bad. But
28:08
Speaker 1: that difference doctrine has predated World War Two, so it's
28:12
Speaker 1: not just the Conservatives. Even the war in court to
28:15
Speaker 1: an extent embrace that deference doctrine.
28:17
Speaker 2: I want to turn now to book banning by Haig Seth.
28:21
Speaker 2: He has banned some books and learning materials in the
28:24
Speaker 2: school system that serves the US military families, covering subjects
28:29
Speaker 2: that include psychology, immigration, and Black history. There's a chapter
28:34
Speaker 2: in a psychology course for Advanced Placement high school students
28:37
Speaker 2: about gender and sexuality, a lesson for fifth graders about
28:41
Speaker 2: how immigration affects, the US book Becoming Nicole, about a
28:46
Speaker 2: family coping to accept their transgender daughter, and a bundle
28:51
Speaker 2: of instructional materials created for sixth graders for Black History Month.
28:56
Speaker 1: This is amazing too. You know, the Department of Defense
29:00
Speaker 1: schools exist for two different reasons. Overseas, they exist because
29:06
Speaker 1: you've got military bases. And although I as a kid,
29:10
Speaker 1: I went to a school public school in West Germany
29:13
Speaker 1: when it was then West Germany, the Dodge schools stood
29:16
Speaker 1: up to educate American kids to American standards so that
29:21
Speaker 1: when they graduated they'd be able to come back into
29:23
Speaker 1: the American economy or go to college without having to
29:29
Speaker 1: go through the various hoops that say an Italian or
29:32
Speaker 1: a French, or a British, or Japanese or South Korean
29:36
Speaker 1: education might give them. Ironically, some of those countries were
29:39
Speaker 1: doing a better job than we were, but that's for
29:41
Speaker 1: the overseas students. In the United States, the DoD schools
29:45
Speaker 1: existed in states that fell below minimum federal standards, and
29:49
Speaker 1: those were typically states in the South, and that included Virginia.
29:53
Speaker 1: There was a school at Fort Belvoir, for example. But
29:57
Speaker 1: having said that the Dodge schools, the Dods schools had
30:00
Speaker 1: rarely gotten the attention of the Secretary of Defense. I mean,
30:04
Speaker 1: the Secretary of Defense is supposed to be focused on
30:06
Speaker 1: whether we need another aircraft carrier or not, or what
30:09
Speaker 1: the right you know, alignment of troops is in the
30:12
Speaker 1: Middle East, or how much money to spend on future
30:15
Speaker 1: warfare versus you know, updating the M one A one
30:19
Speaker 1: tank force. We're talking about huge responsibilities that are actually
30:24
Speaker 1: at the center of tomorrow's war if tomorrow's war comes.
30:28
Speaker 1: The Dodge school seldom got the attention of the Secretary
30:31
Speaker 1: of Defense. This is unusual, and it's part of an
30:35
Speaker 1: unfortunate pattern of attacking DEI blindly without even understanding what
30:40
Speaker 1: DEI is. It's related to the Secretary of Defense's immediate
30:45
Speaker 1: blaming of DEI on the military and civilian aircraft collision
30:50
Speaker 1: outside of you know, outside of Washington Reagan Airport, which
30:53
Speaker 1: was absolutely unethical to do because those investigations take months
30:59
Speaker 1: to run down. But it's reminiscent of when the USS
31:02
Speaker 1: Iowa's turret exploded in the late eighties and the naval
31:06
Speaker 1: leadership the civilian leadership said, oh, it must be the
31:08
Speaker 1: gay sailor who committed suicide but accidentally killed forty seven sailors,
31:13
Speaker 1: when in effect, all it was was political opportunism. It
31:16
Speaker 1: was a worn out gun tour, it dating the World
31:19
Speaker 1: War Two, but it's political opportunism at its worst. It's
31:24
Speaker 1: like removing alleged DEI material from the curriculum at West Point,
31:29
Speaker 1: the Air Force Academy, the Naval Academy, or even the
31:32
Speaker 1: military senior colleges like War College and Command and Staff
31:36
Speaker 1: colleges that each service branch has, and these schools, all
31:40
Speaker 1: of them, every single one of them, exists for the
31:44
Speaker 1: betterment of the military community so that we don't have
31:47
Speaker 1: another Vietnam. It exists for cultural competency. And that's why
31:52
Speaker 1: I say we're turning our minds and hearts back to
31:55
Speaker 1: a pre Vietnam War era, which I think ultimately will
31:58
Speaker 1: be ruin US the military.
32:01
Speaker 2: Well, hopefully things will change in the future. Thanks so much,
32:04
Speaker 2: josh That's Professor Joshua Kastenberg at the University of New
32:08
Speaker 2: Mexico Law School. And that's it for this edition of
32:11
Speaker 2: The Bloomberg Law Show. Remember you can always get the
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