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Trump vs Wall Street Journal & Harvard vs Trump · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 2: President Trump has made something of a habit of suing
0:12
Speaker 2: the media for defamation. This time, Trump is filing a
0:15
Speaker 2: ten billion dollar defamation lawsuit against the Wall Street Journal
0:20
Speaker 2: over July seventeenth story that described a sexually suggestive letter
0:25
Speaker 2: that the newspaper says bore Trump's name and was included
0:29
Speaker 2: in a two thousand and three album compiled for Jeffrey
0:33
Speaker 2: Epstein's fiftieth birthday. The suit accuses the Wall Street Journal
0:37
Speaker 2: and its reporters of having knowingly and recklessly published numerous false, defamatory,
0:44
Speaker 2: and disparaging statements, which it says caused overwhelming financial and
0:49
Speaker 2: reputational harm to the president. A spokesman for the journal said,
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Speaker 2: we have full confidence in the rigor and accuracy of
0:56
Speaker 2: our reporting and will vigorously defend against any lawsuit joining me.
1:01
Speaker 2: Is Defamation attorney Jeff Lewis. Jeff broadly described Trump's lawsuit well.
1:07
Speaker 1: It brought two claims, one for deformation per se, one
1:09
Speaker 1: for deformation per quad, saying the Wall Street Journal never
1:12
Speaker 1: should have published a story alleging that this note was
1:16
Speaker 1: shared this birthday. Greeting and drawing was shared with Epstein.
1:20
Speaker 1: That's the gist of the lawsuit. It's not a serious lawsuit.
1:23
Speaker 1: I have to tell you.
1:24
Speaker 2: Why do you think it's not a serious lawsuit?
1:26
Speaker 1: Well, first of all, where it was filed. You know,
1:28
Speaker 1: serious defamation lawyers will file in a state, will choose
1:31
Speaker 1: a state whether there's no antislap law or we canti
1:34
Speaker 1: slap law to avoid an early embarrassing lass. And here
1:37
Speaker 1: these folks filed in Florida rather than Delaware. Most people
1:41
Speaker 1: who are serious about proceeding with the defamation case, if
1:44
Speaker 1: they have a chance to file in the Delaware will
1:46
Speaker 1: they chose not to file.
1:47
Speaker 2: That.
1:47
Speaker 1: That's one. And the second thing that tells me it's
1:49
Speaker 1: not a serious lawsuit is Florida's got a law that says, hey,
1:52
Speaker 1: before you sue anyone for defamation, you've got to give
1:54
Speaker 1: a five day notice, meaning after the publication, you give
1:57
Speaker 1: five day notice to the newspaper or TV show, Hey
2:00
Speaker 1: we're going to sue you, and give the chance for
2:02
Speaker 1: the newspaper or the TV show to do a retraction.
2:05
Speaker 1: Then comply with that statute, and that's mandatory. Case could
2:08
Speaker 1: be dismissed. Cases have been dismissed based on that statue.
2:10
Speaker 2: You just explain what the anti slap law is.
2:13
Speaker 1: Well, California has a very robust anti slap law. Florida
2:17
Speaker 1: has a pretty robust anti slap law. What it does
2:20
Speaker 1: is it allows litigains to cut the line. Instead of
2:22
Speaker 1: waiting four or five years, instead of spending hundreds of
2:25
Speaker 1: thousand dollars to resolve their case, they get to cut
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Speaker 1: the line and within the first few months of the case,
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Speaker 1: without any discovery, get in front of a judge, put
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Speaker 1: all their evidence on the table and say, hey, this
2:34
Speaker 1: is a frivolous case and should be dismissed at the outset.
2:36
Speaker 1: And if they win, the defendant gets awarded attorney's fees
2:40
Speaker 1: paid by the plaintiffs. Here Wall Street Journal's attorneys fees,
2:43
Speaker 1: which will be in the six figures, will be paid
2:45
Speaker 1: by President Trump.
2:47
Speaker 2: I mean, is this Wall Street Journal article about this
2:51
Speaker 2: sexually suggestive letter even defamatory?
2:55
Speaker 1: You know, a classic defamation lawsuit will consist of a
2:58
Speaker 1: false fact that some but he said something that was false,
3:02
Speaker 1: And here you don't really have a falsity. An experienced
3:05
Speaker 1: litigator would have probably pled a false light claim, which
3:08
Speaker 1: is related to defamation, which pertrees somebody, maybe not with
3:12
Speaker 1: a false fact, but in the negative light saying hey,
3:14
Speaker 1: you're a known associate of a child predator. That's the
3:17
Speaker 1: stronger claim. I'm surprised they didn't pleaded it.
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Speaker 2: Trump would have to prove, I mean, first of all,
3:21
Speaker 2: that the Wall Street Journal was lying. If they can
3:25
Speaker 2: just produce the letter or evidence of the letter, then
3:29
Speaker 2: the suit's over.
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Speaker 1: Well, I don't know about the suit being over, but
3:33
Speaker 1: I will say this truth is a defense in any case,
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Speaker 1: and in a case involving a high profile plaintiff like
3:39
Speaker 1: the president, it is a defense to say that the
3:42
Speaker 1: defendant or the newspaper did not act with actual malice,
3:45
Speaker 1: I meaning they had good cause to believe what their
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Speaker 1: writing is true. And so if they have the letter,
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Speaker 1: or a photo of a letter, or of a credible
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Speaker 1: witness account of the letter, those would all help the
3:55
Speaker 1: Wall Street Journal meet the standard of hey, we didn't
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Speaker 1: publish this with an actual maulage.
4:00
Speaker 2: The lawsuit claims that Trump suffered overwhelming financial and reputational harm,
4:05
Speaker 2: but one jury found Trump libel of sexual assault, and
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Speaker 2: another jury found him guilty of felonies of falsifying business
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Speaker 2: records to cover up a hush money payment to a
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Speaker 2: porn star, and despite that, he was still reelected. So
4:20
Speaker 2: would he suffer further reputational harm from this article.
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Speaker 1: No, I have to tell you, if I were defending
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Speaker 1: the Wall Street Journal, I would invoke a little known
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Speaker 1: and little used doctrine known as the lible proof doctrine,
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Speaker 1: saying there's certain people in our community, certain people in
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Speaker 1: our national politics. His reputations are so terrible, of course,
4:39
Speaker 1: have been so damaged that a negative article in the
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Speaker 1: press does little to no damage. And they shouldn't be
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Speaker 1: allowed to come to the courtroom and recover damages because
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Speaker 1: they are so notorious. And I think Trump FETs the bill.
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Speaker 2: The danger of this for Trump is that the Wall
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Speaker 2: Street Journal can seek broad discovery and can depose him
4:59
Speaker 2: and question about it relationship with Epstein.
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Speaker 1: Right, You're absolutely right. The discovery that can be obtained,
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Speaker 1: the sunlight that could be put on this issue is
5:06
Speaker 1: so much broader than what Congress can do right now.
5:09
Speaker 1: Assuming Congress had the willpower to do something in civil discovery,
5:13
Speaker 1: one could take the I don't know the deposition of
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Speaker 1: a prisoner, the former girlfriend of Epstein, and see what
5:19
Speaker 1: she has to say. Either in deposition or at trial,
5:22
Speaker 1: you could send subpoenas out to third parties and so
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Speaker 1: what they might know about this book and these notes.
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Speaker 1: The scope of discovery is very broad.
5:31
Speaker 2: I assume that the Wall Street Journal is going to
5:33
Speaker 2: make a motion to dismiss pretty quickly. Do you think
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Speaker 2: they can get the suit dismissed at an early stage?
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Speaker 1: I do. I expect them to bring an anti slap
5:42
Speaker 1: motion to dismiss, invoking Florida's anti slap law, and I
5:45
Speaker 1: expect them to argue there was no compliance with this
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Speaker 1: five day rule, there's no proof of actual malice, and
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Speaker 1: there's no damages because he's a liable proof defendant, and.
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Speaker 2: Could there be a settlement? What kind of factors would
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Speaker 2: be considered.
6:00
Speaker 1: Equently in defamation litigation, people will look at the odds
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Speaker 1: of recovering any kind of damages the plane offf and
6:06
Speaker 1: the defendants look at the cost of defending the case,
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Speaker 1: and they compare that to what a possible settlement might
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Speaker 1: be reached, and oftentimes, nine times out of ten cases
6:14
Speaker 1: settle because the cost of defending the case and the
6:17
Speaker 1: risks of going forward are just too great. Even if
6:20
Speaker 1: you feel like you're on the right side of the story.
6:23
Speaker 1: I fully expect this case will settle at some point,
6:25
Speaker 1: but the question is will there be few rounds in court,
6:28
Speaker 1: like a big anti slat motion before there's a settlement.
6:31
Speaker 2: I mean, Trump is known for these defamation suits against
6:34
Speaker 2: the media. He brought cases against CNN, the New York Times,
6:38
Speaker 2: and the Washington Post, and judges dismissed those. But recently,
6:43
Speaker 2: in his defamation lawsuit against ABC and another one against CBS,
6:49
Speaker 2: they settled in pretty quickly. Is it just bad business
6:53
Speaker 2: to be suing the president, especially if you need approval
6:56
Speaker 2: for a merger.
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Speaker 1: Let me say this what really bothered people about CBS
7:00
Speaker 1: settlement is the violation of norms. President Trump is great
7:03
Speaker 1: at violating norms. What we see are traditional rules of
7:06
Speaker 1: fair play in terms of court proceedings and that kind
7:09
Speaker 1: of thing. So you don't typically see someone who occupies
7:12
Speaker 1: the White House wielding their power because of coverage they
7:15
Speaker 1: don't like, either unflattering coverage of somebody or in this case,
7:19
Speaker 1: I believe it was, they tried to make Kamala Harris
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Speaker 1: overly positive. They gave her flattering edits and that is
7:25
Speaker 1: not a loss that you typically see. And to see
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Speaker 1: a big entity pay a huge sum of money to
7:31
Speaker 1: settle at a time when their merger or sale was
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Speaker 1: under potential federal review. It left a lot of people unsettled.
7:39
Speaker 1: And the difference is the spine of the corporate defendants
7:41
Speaker 1: and their willingness to put up with out of court pressures.
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Speaker 1: I mean, keep in mind, there's calls right now that
7:47
Speaker 1: cancel Wall Street Journal subscriptions. There's gonna be tremendous pressure
7:51
Speaker 1: put on Wall Street Journal by President frump space, and
7:55
Speaker 1: so the question will be Little Street Journal a spawn
7:59
Speaker 1: and stand up to this or wull they succumb to
8:01
Speaker 1: that out of court pressure.
8:02
Speaker 2: Trump has wanted to get rid of the actual malice
8:06
Speaker 2: standard in the New York Times v. Sullivan case, which
8:10
Speaker 2: makes it harder for public figures to win libel and
8:12
Speaker 2: defamation lawsuits against the media. Do you think this lawsuit
8:17
Speaker 2: is part of that?
8:18
Speaker 1: I do know that he and other kids sort of
8:20
Speaker 1: want to get the actual malice standard taken out of
8:25
Speaker 1: defamation lawsuits so that plainteffs no longer have that big hurdle.
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Speaker 1: I don't think this is a particularly good case to
8:31
Speaker 1: do that, because the facts are so bad, meaning they
8:34
Speaker 1: are not great facts in favor of us suggesting the
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Speaker 1: Wall Street Journal acted with actual mouse. Oftentimes, when you're
8:40
Speaker 1: looking to take a test case up to the Supreme Court,
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Speaker 1: you want facts that portray the plaintiff in a positive light.
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Speaker 1: And so maybe I might President Trump's goal, but I
8:50
Speaker 1: can't imagine legal advisors see it either as a serious
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Speaker 1: lawsuit or a serious vehicle return the long running actual
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Speaker 1: malice standard.
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Speaker 2: And what's the danger of getting rid of the actual
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Speaker 2: malice standard.
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Speaker 1: Well, there'll be a chilling effect on people willing to
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Speaker 1: gather news. There'll be a chilling effect on people like
9:07
Speaker 1: me willing to speak to reporters, because if you think
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Speaker 1: you're going to be sued and you don't have the
9:12
Speaker 1: protection of the actual mouse standard, it is easier for
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Speaker 1: a planet to survive quick motions, like quick anti slap
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Speaker 1: motions to dismiss. Especially in states about half the states
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Speaker 1: in the United States don't have antislap laws. You're going
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Speaker 1: to find reporters unwilling to report, and participants witnesses less
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Speaker 1: willing to speak to reporters. If it's an edgy story,
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Speaker 1: if it's a story where there's any question that the
9:35
Speaker 1: target of the story might bring a lawsuit, Is this
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Speaker 1: just a.
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Speaker 2: Run of the male defamation lawsuit or is there anything
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Speaker 2: unique about it?
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Speaker 1: It's super interesting in a case like this to allege
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Speaker 1: both defamation per se and defamation per quad. Deformation per
9:50
Speaker 1: se means I don't have to prove any damage, as
9:54
Speaker 1: you the jury should just pick a number. Because the
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Speaker 1: things that were said were so awful, so qua criminal,
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Speaker 1: or so terrible to my reputation, I don't have the
10:02
Speaker 1: burden of proving damages. But he also pled defamation per quad,
10:07
Speaker 1: which says, as a result of the thing we're said
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Speaker 1: by a Wall Street journal, I president Trump suffered actual damages. Boy,
10:14
Speaker 1: if I'm the lawyers for a Wall Street journal, I
10:16
Speaker 1: could have a field day exploring comment. Imagine going through
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Speaker 1: President Trump's finances, his communications, everything having to do with
10:25
Speaker 1: this story, his reputation before the story, and his reputation
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Speaker 1: after the story. I mean, he opened the door to
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Speaker 1: broad discovery by saying he suffered actual damages.
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Speaker 2: Well, they may not even get to discovery in this case.
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Speaker 2: It could be dismissed. Well before that, Thanks so much, Jeff.
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Speaker 2: That's defamation attorney Jeff Lewis coming up next on The
10:46
Speaker 2: Bloomberg Law Show. Harvard University is challenging the legality of
10:51
Speaker 2: the Trump administration's termination of two point six billion dollars
10:56
Speaker 2: in federal research funding over alleged institutional failing you're listening
11:01
Speaker 2: to Bloomberg. President Trump has repeatedly complained about perceived wokeness
11:07
Speaker 2: at universities and colleges, and in the Trump administration's campaign
11:12
Speaker 2: to pressure elite US colleges to make a wide range
11:16
Speaker 2: of policy changes, it's come down hardest on Harvard University,
11:21
Speaker 2: the country's oldest and richest university. Among the actions the
11:25
Speaker 2: administration has taken is terminating more than two billion dollars
11:29
Speaker 2: in federal research funding to Harvard over alleged institutional failures,
11:35
Speaker 2: including anti semitism on campus. Harvard has responded with a lawsuit,
11:40
Speaker 2: and yesterday at a hearing, Boston federal judge Allison Burrows
11:45
Speaker 2: raised questions about the constitutionality of the government's decision to
11:49
Speaker 2: slash the funding and call some of their arguments in
11:52
Speaker 2: defense of the move mind boggling. My guest is Jody Ferice,
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Speaker 2: a lawyer who specializes in higher education. She's a partner
12:00
Speaker 2: at Church, Church, Hittle and Antrim. Jody. The Trump administration
12:05
Speaker 2: said it was freezing Harvard's funding because it violated Titles
12:10
Speaker 2: seven of the Civil Rights Act by failing to address
12:13
Speaker 2: anti semitism on campus. Tell us more about the Trump
12:17
Speaker 2: administration's position here.
12:18
Speaker 3: So it's interesting when you talk about the argument that
12:23
Speaker 3: the Trump administration has been making, they've they've actually kind
12:27
Speaker 3: of shifted a time or two in their argument. I
12:30
Speaker 3: think Harvard's been pretty steady. Harvard's argument has been throughout,
12:35
Speaker 3: you're violating her rights of free speech. You've done it
12:39
Speaker 3: with no due process whatsoever, and you can't do that.
12:43
Speaker 3: You can't do that. You didn't give us any notice,
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Speaker 3: you didn't follow administrative procedures Act, you didn't give us
12:51
Speaker 3: any opportunity to cure what you said was wrong. You
12:54
Speaker 3: can't do that. So Harvard's been pretty steady. But the
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Speaker 3: Trump administration has tried a couple of different things. Right,
13:00
Speaker 3: They've said, you know, we are revoking all these federal funds,
13:05
Speaker 3: and we're going to prohibit the issuance of any new
13:07
Speaker 3: federal funds because you have violated civil rights law and
13:14
Speaker 3: you've engaged in, or allowed, or even fostered this rampant
13:19
Speaker 3: anti semitism. Then, once this action was filed, they've said, hey,
13:25
Speaker 3: this is a contract matter. This is just a contract matter, Harvard.
13:29
Speaker 3: You should have read the fine print, you know, you
13:31
Speaker 3: should have looked at the fine print that said that
13:33
Speaker 3: we could revoke your funding if we had a shift
13:37
Speaker 3: in our administrative priorities. They've also said you've chosen the
13:41
Speaker 3: wrong court. This should be, you know, in a different forum.
13:45
Speaker 3: And you know, I think that that is a that's
13:48
Speaker 3: a pretty lay in effort. But they've they've kind of
13:50
Speaker 3: shifted a little bit, right, And I think that yesterday,
13:53
Speaker 3: what you heard in the hearing was that was them saying,
13:57
Speaker 3: you know what, we can do this. We can allocate
14:00
Speaker 3: funds where we think matches up with presidential priorities and
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Speaker 3: administrative priorities, and these aren't our priorities right now. That
14:08
Speaker 3: to me is a bunker's argument when you think that
14:12
Speaker 3: they have just revoked funding that would go to things
14:16
Speaker 3: like cancer research and als research, and research that has
14:22
Speaker 3: to do with preventing suicide in veterans and risk factors
14:27
Speaker 3: in childbirth. These are not controversial. If those things aren't
14:32
Speaker 3: within your administrative priorities, then shame on you, really, But
14:35
Speaker 3: that was one of the arguments that the government has
14:38
Speaker 3: made is these research brands they no longer in fall
14:41
Speaker 3: in line with our administrative priorities because they are being
14:44
Speaker 3: given to an institution that engages in anti semitism and
14:50
Speaker 3: we get to choose.
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Speaker 2: Are these grants like a contract that the government says
14:55
Speaker 2: they can just walk away from.
14:57
Speaker 3: They are saying that, and they're not in entirely wrong.
15:01
Speaker 3: So federal grants always come with a contract, and we
15:06
Speaker 3: know that because there are terms that come along with
15:09
Speaker 3: every grant really from any organization or entity or government,
15:13
Speaker 3: whether it's federal or not. And they will say things
15:15
Speaker 3: like you have to engage in human research protection. Right,
15:19
Speaker 3: that's a term of your grant. You have to do that.
15:22
Speaker 3: You can't lie about what your grant funds are going
15:25
Speaker 3: to be used for, you can't fudge your data, you
15:28
Speaker 3: can't you know, make things up, or you can't make
15:33
Speaker 3: up something for purposes of your application to induce us
15:36
Speaker 3: to give it to you. So those kinds of things
15:38
Speaker 3: are always built into to essentially any grant funding that
15:42
Speaker 3: comes pretty much from anywhere, and those are important rights
15:45
Speaker 3: to ensure things like human resource protections. They're saying, that's
15:49
Speaker 3: sort of implicit in every one of these contracts, and
15:54
Speaker 3: they really are. Grants are a contract. They're saying implicit
15:59
Speaker 3: in that is, if we decide unilaterally, with no opportunity
16:04
Speaker 3: for you to be heard on the matter or to
16:07
Speaker 3: respond or even to ku a defect, if we decide
16:11
Speaker 3: unilaterally that you've done something way over here that has
16:14
Speaker 3: nothing to do with this grant, we can still take
16:17
Speaker 3: it away. And that's the part that's incorrect. But people
16:21
Speaker 3: do lose grant funding for things directly related to the
16:24
Speaker 3: grant itself, you know, And that's important because those are
16:28
Speaker 3: those are important terms for the protection and stewardship of
16:31
Speaker 3: the fund.
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Speaker 2: The judge pushed back on the administration's claims that the
16:36
Speaker 2: funding cuts were justified by Harvard's failure to tackle anti semitism,
16:41
Speaker 2: asking about the relationship between cancer research and combating anti semitism.
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Speaker 3: You know, it was pretty obvious from some of the
16:48
Speaker 3: judges comments that she didn't see how cutting off grant
16:53
Speaker 3: funding for cancer research and als research and research on
16:58
Speaker 3: biological threats and food insecurity and risk factors and childbirth,
17:02
Speaker 3: how any of that stood to make anti semitism go
17:06
Speaker 3: away or had any correlation to it in the first place.
17:10
Speaker 3: Because the government has made no argument that these grants
17:14
Speaker 3: or this research is in any way fostering anti semitism,
17:18
Speaker 3: more that anti Symitism has been rampant among those doing
17:22
Speaker 3: this research. They haven't made that correlation, and she pointed
17:26
Speaker 3: that out yesterday during the hearings to try and prompt
17:29
Speaker 3: them to make that link. They did not attempt to
17:33
Speaker 3: do that. They simply said, whenever we give Harvard research funds,
17:38
Speaker 3: those are funds that aren't going somewhere else. Their argument
17:41
Speaker 3: seemed to be, we have a finite amount of funds,
17:44
Speaker 3: we give them to this anti Semitic institution, then it's
17:48
Speaker 3: hurting other institutions that are better suited to have them
17:52
Speaker 3: because they do more to protect Jewish faculty and students.
17:56
Speaker 3: I don't think the judge bought that argument.
17:59
Speaker 2: So you mentioned that one of Harvard's main claims is
18:02
Speaker 2: that the administration violated the Administrative Procedures Act, and that's
18:07
Speaker 2: a pretty common claim in these suits against the administration.
18:11
Speaker 2: So explain a little bit more what they should have
18:15
Speaker 2: done here.
18:16
Speaker 3: So, under the Administrative Procedures Act, you can make changes,
18:20
Speaker 3: an agency can make changes, or they can issue sanctions
18:25
Speaker 3: for things, but there's a process that they have to
18:28
Speaker 3: go through to do that, and there's a there's a
18:31
Speaker 3: notice the recipient you would be entitled to, and then
18:35
Speaker 3: there's a process by which they get to answer. So
18:39
Speaker 3: it's kind of akin to what you would see in
18:42
Speaker 3: a civil action. But if an agency wants to make
18:45
Speaker 3: some big change like this, you know, we're going to
18:48
Speaker 3: cancel all your grant funding that we've already agreed to
18:52
Speaker 3: give you, you would be required to have an agency proceeding, right,
18:55
Speaker 3: some kind of an agency process where you're going to
18:59
Speaker 3: level the charges against the organization, and then you know
19:03
Speaker 3: they can they can issue a sanction, and you know
19:06
Speaker 3: a sanction might be revoking grant funding. But in order
19:11
Speaker 3: to do that, they need to go through the process
19:14
Speaker 3: of adjudicating that and that they did not do. And
19:19
Speaker 3: so under the Administrative Procedures Act, when they do that,
19:22
Speaker 3: the agency is required to give an opportunity for Harvard
19:26
Speaker 3: in this instance or the responding organization to review what
19:33
Speaker 3: the facts are, what's the argument against us, what's the
19:36
Speaker 3: extent of the sanction or the penalty that we are
19:40
Speaker 3: going to be subjected to, and then you give them
19:43
Speaker 3: notice in an opportunity to respond to that. So in
19:46
Speaker 3: that way, it's you know, it's kind of just like
19:48
Speaker 3: a civil action where you must give someone an opportunity
19:52
Speaker 3: to address, to answer what's been charged against them. The
19:58
Speaker 3: Trump administration seems to be saying, yeah, not here, right,
20:02
Speaker 3: we understand there is an Administrative Procedures Act, but not here.
20:05
Speaker 3: We are able to do this unilaterally. And I think
20:09
Speaker 3: that's why in this instance the case was brought. You know,
20:13
Speaker 3: it's kind of a bold move, but it was brought
20:15
Speaker 3: for some rejudgment, which is both parties saying to the
20:19
Speaker 3: court there's not really any issue of material fact here.
20:24
Speaker 3: There's no material fact something that we disagree on. This
20:28
Speaker 3: can be determined as a matter of law. And Harvard's saying,
20:32
Speaker 3: as a matter of law, you got to give us.
20:35
Speaker 3: You can't take an agency action like this without some
20:38
Speaker 3: kind of an adjudication, some kind of notice, some kind
20:42
Speaker 3: of process, some kind of opportunity to respond. And the
20:45
Speaker 3: Trump administration is saying, in this instance, we don't have
20:49
Speaker 3: to do that. We get to unilaterally revoke these things
20:52
Speaker 3: and decide where our dollars go. It's just good stewardship,
20:55
Speaker 3: according to them.
20:56
Speaker 2: So is there not going to be any fact finding
20:59
Speaker 2: about whether or not Harvard has, you know, work to
21:02
Speaker 2: combat anti Semitism.
21:04
Speaker 3: So that's the interesting thing, you know, the two and
21:07
Speaker 3: a half hours yesterday that was that on at least
21:11
Speaker 3: on the law part of this. The determination when it
21:15
Speaker 3: comes back from Judge Burrows, it's either going to be
21:18
Speaker 3: I'm granting summary judgments and I am saying, as a
21:21
Speaker 3: matter of law, the government did not follow procedures that
21:25
Speaker 3: they needed to follow in order to level this kind
21:28
Speaker 3: of a sanction or take this kind of an agency action,
21:31
Speaker 3: so that action was unlawful. You have to release those funds. Now.
21:35
Speaker 3: If that happens, and there's a pretty good chance it will,
21:38
Speaker 3: the appeal will be Swiss. In fact, I'm sure to
21:42
Speaker 3: the depth of my soul that that appeal has already
21:44
Speaker 3: been drafted because I think the Trump administration feels, and
21:48
Speaker 3: I'm basing this on some of the true social language.
21:51
Speaker 3: I think they probably assume that they're going to lose
21:55
Speaker 3: at the federal court level, and so I think we
21:58
Speaker 3: will immediately see that. However, to your question, there is
22:03
Speaker 3: a time and a place where you might see that.
22:05
Speaker 3: You might say, if the government decided, and they won't,
22:09
Speaker 3: but if they decided to agree, Okay, all right, if
22:12
Speaker 3: you want to do it that way, we will go
22:14
Speaker 3: ahead and prove that these facts are true and these
22:18
Speaker 3: facts make you inappropriate, and you know they could follow that.
22:22
Speaker 3: So there is still a place where the actual fact
22:25
Speaker 3: finding about the substantive issues the anti Semitism itself could
22:30
Speaker 3: come out. The other place that it could become an issue, though,
22:34
Speaker 3: is remember that here we're talking about the termination of
22:38
Speaker 3: grant funds that were already in place. But I think
22:41
Speaker 3: what we're probably going to see is that even if
22:44
Speaker 3: the Trump administration loses on the issue of the funds
22:48
Speaker 3: that have already been agreed to, right, the funds that
22:51
Speaker 3: have already been granted and have been kind of paused,
22:54
Speaker 3: even if they had to do that, I think they
22:57
Speaker 3: will not be done. I don't think this will be
23:00
Speaker 3: but a speed bump to them, because they can still
23:04
Speaker 3: cut off future grant funding. They can still attempt other
23:08
Speaker 3: end runs that they've already signaled they will do things
23:11
Speaker 3: like taking away tax exempt status, things like trying to
23:16
Speaker 3: interfere with accreditation, and so I don't think that regardless
23:21
Speaker 3: of what happens, we will be done with this, and
23:24
Speaker 3: there will be places all along the way where Harvard
23:26
Speaker 3: may be called upon to defend itself in terms of
23:29
Speaker 3: what it's doing to cure anti Semitism, to remedy things
23:34
Speaker 3: that they acknowledge could be better. Things that they acknowledge
23:37
Speaker 3: have maybe gone wrong. But you got to give them
23:39
Speaker 3: a chance to answer for that at some point, and
23:42
Speaker 3: you got to pay attention to what they're trying to
23:45
Speaker 3: do to make it better. You can't just destroy the
23:47
Speaker 3: place for past grievances.
23:50
Speaker 2: Coming up next, what other colleges are watching in this litigation?
23:54
Speaker 2: This is Bloomberg. Harvard University appeared in federal court on
23:59
Speaker 2: Monday in a pivotal case in its battle with the
24:02
Speaker 2: Trump administration, as the nation's oldest university, argued the government
24:07
Speaker 2: illegally cut two point six billion dollars in federal funding.
24:12
Speaker 2: A lawyer for the government said the Trump administration has
24:14
Speaker 2: authority to cancel the grants after concluding the funding did
24:19
Speaker 2: not align with its priorities, namely Trump's executive Order combating
24:24
Speaker 2: Anti Semitism. I've been talking to attorney Jody Ferese, who
24:28
Speaker 2: specializes in higher education and represents colleges and universities. Jody
24:33
Speaker 2: tell us a little bit about Harvard's complaint that the
24:37
Speaker 2: government is violating the First Amendment.
24:40
Speaker 3: Part of Harvard's argument is that the government is violating
24:44
Speaker 3: their First Amendment. And that's because the initial letter, the
24:49
Speaker 3: demand letter that was sent from the government to Harvard,
24:53
Speaker 3: had all kinds of things in it that would tend
24:55
Speaker 3: to stifle certain kinds of speech or would pose a
24:59
Speaker 3: real threat. So let me give you a couple of examples. So,
25:03
Speaker 3: for example, they wanted to see employment, all kinds of
25:07
Speaker 3: records related to how you go about hiring, how you,
25:12
Speaker 3: Harvard do your hiring, and are you engaging in illegal
25:17
Speaker 3: discrimination in the practice of hiring. So we want to
25:20
Speaker 3: see all the files and all the notes and all
25:24
Speaker 3: the grids that were made in the process of hiring.
25:28
Speaker 3: You can't do that. Similarly, with admissions, we want to
25:31
Speaker 3: see all the admissions files. We want to see who
25:33
Speaker 3: got in, we want to see who didn't get in.
25:35
Speaker 3: We want to see how you made those decisions. That
25:38
Speaker 3: was another example. Another one was a really scary one,
25:41
Speaker 3: was we want you to hire an outside firm to
25:47
Speaker 3: with our approval, and then we want them to go
25:50
Speaker 3: in and get into the teaching and the curriculum and
25:54
Speaker 3: the pedagogy, and then we want them to point out,
25:57
Speaker 3: we want you to give us the names of any
26:01
Speaker 3: faculty who have been engaging in anti semitism. We want
26:05
Speaker 3: their names. Those things are all invasions of a private
26:10
Speaker 3: rite of free speech that you have to be as
26:13
Speaker 3: an institution free from interference from government actors. There was
26:19
Speaker 3: no way that Harvard could have accepted the demands of
26:24
Speaker 3: that letter without having completely turned over control of that
26:27
Speaker 3: institution to the Trump administration. They wanted every last conduct
26:32
Speaker 3: report of every international student on that campus of any kind,
26:37
Speaker 3: any kind. Cheated on a test, smoked in a dorm,
26:41
Speaker 3: doesn't matter, every single And so when they say first men,
26:45
Speaker 3: it was a lot of that. You have attempted to
26:48
Speaker 3: chill every form of speech from our our processes, from
26:52
Speaker 3: admission to hiring, to having international students to what we
26:56
Speaker 3: teach in our classrooms. And you're going to do that
26:58
Speaker 3: by coming in and just take control of everything we
27:01
Speaker 3: do on this campus.
27:02
Speaker 2: I don't know if they're still negotiating. Is there room
27:05
Speaker 2: for settlement here?
27:06
Speaker 3: So it's interesting the Trump administration has framed this as
27:10
Speaker 3: though Harvard had all the incentive in the world to
27:14
Speaker 3: want to settle this, And you know, I don't know
27:18
Speaker 3: if I can see it that way. No one was
27:21
Speaker 3: ever privy, not really, because you know, I think that
27:25
Speaker 3: the Trump administration has invested so much time and energy
27:31
Speaker 3: and pressed national attention on this, and I don't think
27:36
Speaker 3: they're going to win. You know, I think that who
27:39
Speaker 3: has a lot of incentive to negotiate is often who
27:42
Speaker 3: stands the biggest chance of losing. In this instance, it's
27:47
Speaker 3: it's an exhausting battle for Harvard. It's costing a fortune,
27:52
Speaker 3: it's taking time and energy away from things that it
27:56
Speaker 3: would be much better uses of time and energy. But
27:59
Speaker 3: in the I don't think Harvard's going to lose, at
28:02
Speaker 3: least not at this level and probably not the next one.
28:05
Speaker 3: But I don't know that they're continuing to negotiate. I
28:08
Speaker 3: don't know that. I just feel like things seem to
28:11
Speaker 3: have broken down because boy, they didn't seem very close
28:13
Speaker 3: to a they didn't seem very close to a resolution yesterday.
28:17
Speaker 3: They were as far apart as two entities could be yesterday.
28:21
Speaker 2: And the government lawyer is Harvard educated too.
28:25
Speaker 3: Yeah, it's ironic.
28:26
Speaker 2: I know you understand that college's universities they're all watching
28:31
Speaker 2: this case. Are they watching it to see whether to
28:35
Speaker 2: stand up for the Trump administration or whether to settle
28:37
Speaker 2: with the Trump administration. I mean, why are they watching this?
28:42
Speaker 3: That is a that is a really interesting question. One
28:44
Speaker 3: of the statements that the government attorney made yesterday was
28:47
Speaker 3: we are not anti Harvard. And I think you know,
28:50
Speaker 3: that attorney was kind of carefully picked because they went
28:53
Speaker 3: to Harvard, and so they made this statement yesterday that
28:56
Speaker 3: we're not anti Harvard. And in an interesting way, I
29:00
Speaker 3: think that's probably true because I don't believe this fight
29:04
Speaker 3: to be about Harvard. I believe this fight to be
29:07
Speaker 3: about higher education the sector as a whole. And I
29:11
Speaker 3: think most people in my industry recognize it as such.
29:14
Speaker 3: I think they recognize that Harvard is just a big,
29:19
Speaker 3: unsympathetic example, a big unsympathetic flex of power. But as
29:27
Speaker 3: I talk to clients, we represent clients from coast to
29:31
Speaker 3: coast and north to south, and as you talk to them,
29:35
Speaker 3: they are watching and listening, but not their day to
29:40
Speaker 3: day life is going on because they have fatigue, you know,
29:45
Speaker 3: they have issue fatigue. We just have to keep doing
29:48
Speaker 3: this important work we're doing. We have to keep pursuing
29:51
Speaker 3: our mission. But what they're watching for in the end
29:55
Speaker 3: is not going to be whether we should stand up
29:58
Speaker 3: to the administration. It's how much danger are we in
30:02
Speaker 3: if we end up on their radar? How much do
30:05
Speaker 3: we stand to lose? Is this an existential crisis? And
30:09
Speaker 3: so I don't think that they spend all day every
30:12
Speaker 3: day clutching their pearls and twisting their kleenex over it.
30:17
Speaker 3: I don't think they have time to do that. They
30:19
Speaker 3: have really important work that they're doing. But in the end,
30:21
Speaker 3: they recognize that if this issue comes back, that you
30:26
Speaker 3: can lose federal money with no due process, no explanation,
30:30
Speaker 3: no ability to defend yourself, then they may have to
30:35
Speaker 3: be really careful about the things that they do, very
30:38
Speaker 3: careful about not getting on anyone's radar. So ultimately it
30:42
Speaker 3: will change them things. But most institutions don't have the
30:45
Speaker 3: wherewithal to stand up to the administration the way that
30:48
Speaker 3: Harvard is. It would put them out of business long
30:52
Speaker 3: before the point that Harvard has already reached.
30:55
Speaker 2: There's talk about Columbia possibly reaching a settlement with the government.
31:00
Speaker 2: If a school like Columbia does settle, what kind of
31:04
Speaker 2: a message does that send.
31:06
Speaker 3: I think if Columbia reaches the settlement, that will be
31:10
Speaker 3: a moving target. I don't know a single person who
31:15
Speaker 3: thinks that even if Colombia conceded to the things that
31:22
Speaker 3: have been asked of them, that that would be the
31:25
Speaker 3: end of the issue. I just don't think so, because
31:29
Speaker 3: until there is complete control of an institution, a private institution,
31:34
Speaker 3: this administration isn't going to stop. This is about This
31:37
Speaker 3: is not about the substantive issue. This is not about
31:40
Speaker 3: anti semitism. It is not about reading the fine print
31:45
Speaker 3: in your contracts. It is not about insidious forms of
31:49
Speaker 3: discrimination that the administration is so concerned about. It is
31:54
Speaker 3: not about, you know, good stewardship of federal dollars. This
31:59
Speaker 3: is about proving that we have control and we can
32:03
Speaker 3: get you to bend to our will. Until you do
32:06
Speaker 3: what we have said is an administrative priority. Bullstop. So
32:11
Speaker 3: I think that if Columbia reaches a you know, quote
32:15
Speaker 3: unquote settlement, I think that most people will just wait
32:20
Speaker 3: for the next thing that happens where the administration says, well,
32:23
Speaker 3: you know, Colombia didn't adhere to the subtle what we reached.
32:26
Speaker 3: Look we've you know, we've caught them in something else.
32:30
Speaker 3: And I think that that's been Harvard's view is there's
32:33
Speaker 3: very little path board by which we can agree to
32:37
Speaker 3: even a fraction of the things you're asking here, or
32:40
Speaker 3: we won't be Harvard anymore, will be an arm of
32:43
Speaker 3: the government. That's not what private education is. And I think,
32:47
Speaker 3: you know, I think it bears noting that people should
32:50
Speaker 3: think really carefully about whether this is really what you want,
32:55
Speaker 3: because if we are going to shift to the whim
32:59
Speaker 3: of an administrations priorities, that's going to have to be
33:05
Speaker 3: the way we do it, no matter what the priorities
33:07
Speaker 3: of that administration are it might be in the future. Right, So,
33:11
Speaker 3: are you prepared for the pendulum of time to shift
33:16
Speaker 3: in a much more liberal administration to come in with
33:20
Speaker 3: its set of priorities and its set of goals. Will
33:25
Speaker 3: we still believe this is the right way to conduct ourselves.
33:29
Speaker 3: Will we still believe we have these kind of rights
33:32
Speaker 3: at the executive level when there is a completely different
33:37
Speaker 3: administration in place? And I think if people really thought
33:42
Speaker 3: that all the way through, some of them would recognize
33:47
Speaker 3: that that's a very poor idea.
33:50
Speaker 2: Thanks so much for joining me today, Jody. That's Higher
33:53
Speaker 2: Education Attorney Jody Ferice. And that's it for this edition
33:57
Speaker 2: of the Bloomberg Law Show. Remember you can always get
33:59
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34:03
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