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Trump Moves to Fire Fed Governor & Threatens Chicago · Bloomberg Law

0:02
Speaker 1: You're listening to Bloomberg Law with June Grosso from Bloomberg Radio.
0:10
Speaker 1: In a significant escalation of his battle with the Fed,
0:14
Speaker 1: President Trump is moving to fire Lisa Cook, the first
0:18
Speaker 1: black woman to serve on the Federal Board of Governors.
0:21
Speaker 1: In a letter posted on truth Social late Monday, Trump
0:24
Speaker 1: said he had quote sufficient cause to fire Cook, citing
0:29
Speaker 1: allegations that she submitted fraudulent information on mortgage applications, although
0:34
Speaker 1: she's not been charged with a crime. He reiterated his
0:37
Speaker 1: position in the Oval office today, it.
0:40
Speaker 2: Seems to have had an infraction, and she can't have
0:42
Speaker 2: an infraction, especially that infraction, because she's in charge of,
0:46
Speaker 2: if you think about it, mortgages, and we need people
0:49
Speaker 2: that are one hundred percent above board, and it doesn't
0:52
Speaker 2: seem like she wish.
0:54
Speaker 1: Cook says she won't step down. Her lawyer, Abby Lowell,
0:57
Speaker 1: says they'll sue, and that Trump's attack to fire her,
1:01
Speaker 1: based solely on a referral letter, lacks any factual or
1:05
Speaker 1: legal basis. Joining me is constitutional law expert Harold Krent,
1:10
Speaker 1: a professor at the Chicago Kent College of Law.
1:13
Speaker 3: Can we assume that the.
1:15
Speaker 1: President is giving in on one point that he needs
1:18
Speaker 1: cause to fire Cook because he said and a letter
1:22
Speaker 1: posted on truth Social that he had sufficient cause to
1:26
Speaker 1: fire her.
1:27
Speaker 4: And that's the surprise, is that the president has deviated
1:30
Speaker 4: from his earlier line, which said that he can fire
1:34
Speaker 4: anybody he wants to for any reason whatsoever. And by
1:37
Speaker 4: inserting in the letter that he had caused to fire Cook,
1:41
Speaker 4: that's suggesting the type of admission that he does need
1:45
Speaker 4: to have cause to fire her. As a governor of
1:48
Speaker 4: the Federal Reserve. He could always abandon that later in court,
1:51
Speaker 4: but at least at this point, this is an unusual
1:54
Speaker 4: claim for him, that he does need to have caused.
1:56
Speaker 3: This all goes.
1:57
Speaker 1: Back to FHFA Director Bill Poulty alleged that she lied
2:04
Speaker 1: on loan applications for two properties, claiming she would use
2:09
Speaker 1: each property as her primary residence. And Trump wrote in
2:13
Speaker 1: a letter sent to Cook yesterday, at minimum, the conduct
2:17
Speaker 1: that issue exhibits the sort of gross negligence in financial
2:21
Speaker 1: transactions that calls into question your experience and trustworthiness as
2:27
Speaker 1: a financial regulator.
2:29
Speaker 3: Is that cause?
2:30
Speaker 4: So this discharge of raises three issues in my mind anyway,
2:35
Speaker 4: and the first is the one you've articulated, what is
2:38
Speaker 4: caused and there is a dearth of precedent at the
2:41
Speaker 4: federal level as to what is caused to justify dismissal
2:46
Speaker 4: of someone who's otherwise protected in the government's employee for instance,
2:50
Speaker 4: is there a reason to fire someone for something they
2:52
Speaker 4: do outside their job, something they did in terms of
2:56
Speaker 4: they got into a fight at a bar? Is that cause?
2:58
Speaker 4: What happened here is at least akin to that. It's
3:01
Speaker 4: like something that happened in our private life, not with
3:03
Speaker 4: respect to her job. You know, that's one issue, but
3:06
Speaker 4: there are others. You know, can a judge second guess
3:09
Speaker 4: a presidence determination that the individual is not fit for
3:14
Speaker 4: the office. That's a question of what kind of difference
3:17
Speaker 4: the courts will give to the determination of cause. And
3:20
Speaker 4: then there's the initial question of whether the president had
3:24
Speaker 4: to give any kind of notice and ability to respond
3:28
Speaker 4: before the discharge, if sort of being federal governor cooked
3:31
Speaker 4: this was a question of an employee. The law is
3:36
Speaker 4: clear that the employer needs to give notice an opportunity
3:39
Speaker 4: to be heard prior to the discharge, except in an
3:42
Speaker 4: emergency situation, and this isn't one. So the procedural issue
3:47
Speaker 4: may well be raised in this case. And then There's
3:49
Speaker 4: a third issue that I think could be relevant to
3:52
Speaker 4: which is we don't have a lot of present about
3:55
Speaker 4: if a court says that there is not caused to
3:59
Speaker 4: dismiss individual, will the court inequity forced the president to
4:04
Speaker 4: rehire someone, or will they just say that you were
4:07
Speaker 4: unlawfully terminated and the government has to pay back pay. Obviously,
4:12
Speaker 4: in the famous Humphrey's Executive case, which is still limping along,
4:16
Speaker 4: the court didn't have to decide on the reinstatement issue
4:19
Speaker 4: because the FTC Commissioner Humphrey had already died and the
4:24
Speaker 4: estate was carrying on the case. So we don't know
4:27
Speaker 4: whether there's no's ahead of time, we don't know what
4:29
Speaker 4: cause means, and we don't know even if there is
4:32
Speaker 4: no cause, whether the court would require reinstatement or wouldout
4:36
Speaker 4: be a trenching too directly upon the presidential powers.
4:40
Speaker 1: So the fact that he threatened to remove her and
4:45
Speaker 1: asked her to step down because of this is that Notice,
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Speaker 1: who knows.
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Speaker 4: Did he say I'm worried about the loan applications? What's
4:54
Speaker 4: your side of the story. I mean, that's what's supposed
4:56
Speaker 4: to happen for most federal employees. It's not a full hearing,
5:01
Speaker 4: it's just notice an opportunity to respond. And did he
5:05
Speaker 4: ever ask you know what about this finding by Pulti,
5:08
Speaker 4: what do you have to say about it? And will
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Speaker 4: that be constitutionally required? We don't know what is for employees.
5:13
Speaker 4: Maybe it's not for officers, but the court will have
5:15
Speaker 4: to tell us.
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Speaker 1: Also, this happened before she became a Fed governor, and
5:19
Speaker 1: her attorney is saying there's no factual.
5:22
Speaker 3: Or legal basis.
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Speaker 1: This is all based on a referral letter from the
5:27
Speaker 1: head of the FHFA, Bill Pulty, who has sent similar
5:31
Speaker 1: referral letters for Democratic Senator Adam Schiff of California and
5:37
Speaker 1: New York Attorney General Letitia James, who are on Trump's
5:41
Speaker 1: enemies list. So there are no findings and it appears
5:45
Speaker 1: not even an investigation.
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Speaker 4: Yeah, I mean, the question then is whether this is
5:50
Speaker 4: all pretext and whether the court will second guess whether
5:54
Speaker 4: there is cause and effect. You know, the issue is
5:57
Speaker 4: just because someone is accused of doing some thing that
6:00
Speaker 4: may be unethical doesn't mean that they did something that
6:03
Speaker 4: was unethical, And of course who was to judge that anyway,
6:05
Speaker 4: So sort of the substance of the case about whether
6:09
Speaker 4: there's a enough cause to remove the Federal Reserve governor
6:13
Speaker 4: is you know, up in the air. And my guess
6:17
Speaker 4: is that if the courts do take that issue up,
6:21
Speaker 4: the courts would say that you can have cause to
6:24
Speaker 4: dismiss somebody for conduct unrelated to the conduct of their job,
6:28
Speaker 4: but you'd have to make some kind of determination whether
6:32
Speaker 4: or not, given what the government is convinced that she did,
6:36
Speaker 4: whether that would impair her ability to do her job effectively. So,
6:40
Speaker 4: you know, this case raises a lot of issues that
6:43
Speaker 4: have been circling around discharge of federal officers, and we
6:46
Speaker 4: simply don't know the answers.
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Speaker 3: Looking at the.
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Speaker 1: Ruling earlier this year where the Supreme Court said it
6:51
Speaker 1: would shield the Central Bank from the type of at
6:54
Speaker 1: will removals of board members that they've allowed Trump to
6:58
Speaker 1: do at least temporary at other independent federal agencies. Do
7:03
Speaker 1: you think that just stands for the fact that it
7:05
Speaker 1: has to be for cause, or does it stand for
7:09
Speaker 1: the Fed is different.
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Speaker 4: You could say that President Trump is doing the trial balloon,
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Speaker 4: and if it goes well and he can get away
7:17
Speaker 4: with dismissing for a Wiserve governor Cook, then maybe he
7:20
Speaker 4: can remove Powell because of the overruns in terms of
7:25
Speaker 4: redecorating and restructuring his buildings, right, I mean that may
7:29
Speaker 4: be cause as well, So he may be trying this
7:32
Speaker 4: as a kind of trial boom to see what he
7:34
Speaker 4: can get away with. On the other hand, it's unclear
7:37
Speaker 4: what principled way that the Supreme Court could say that
7:41
Speaker 4: president can't fire the head of the Fed, but they
7:44
Speaker 4: can fire all other officers in the United States. That
7:47
Speaker 4: helps the markets, but it doesn't seem to be very
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Speaker 4: logical either. So we just don't know.
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Speaker 1: And has the Supreme Court ever defined what for cause means?
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Speaker 4: No, it has never defined it. It is dereliction of
8:01
Speaker 4: duties is one word that they use. But I think
8:04
Speaker 4: that it's a small step from dere election of duties
8:07
Speaker 4: to say, you know, if someone I had a case,
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Speaker 4: for instance, they had to do with the Ministry of
8:12
Speaker 4: Law judge who is disciplined for having a fight with
8:16
Speaker 4: a family member, and the Court's upheld that that's cause.
8:21
Speaker 4: So it's a small step from dere election of duties
8:24
Speaker 4: to say, you know, if someone didn't behave well outside
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Speaker 4: of office, and that casts a cloud upon the integrity
8:30
Speaker 4: and the ability of the office to do its congressionally
8:33
Speaker 4: assigned tasks. So again, if the court ever reaches that,
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Speaker 4: I would think that they would start with the president
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Speaker 4: on that that you don't want to limit cause just
8:43
Speaker 4: to what's happened in terms of carrying out the duties
8:45
Speaker 4: of your office, you'd want to expand it to say
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Speaker 4: any kind of conduct then that would undermine your ability
8:50
Speaker 4: in the future to conduct your affairs in an appropriate way.
8:54
Speaker 1: Coming up next on the Bloomberg Law Show, I'll continue
8:57
Speaker 1: this conversation with Professor Harold Krant does sh Cago Kent
9:01
Speaker 1: College of Law. More on Trump's plans to expand the
9:05
Speaker 1: use of the military in American cities, and a Trump
9:09
Speaker 1: appointed federal judge tosses the administration's lawsuit against all the
9:15
Speaker 1: federal judges in Maryland. I'm June Grosso and you're listening
9:19
Speaker 1: to Bloomberg. Mister President, do not come to Chicago. President
9:25
Speaker 1: Trump is threatening to expand his use of the National
9:28
Speaker 1: Guard to crack down on crime in US cities, and
9:32
Speaker 1: after deploying the Guard to LA and DC, Chicago seems
9:37
Speaker 1: to be next on his list.
9:39
Speaker 5: When I have some slob like Pritzker criticizing US before
9:42
Speaker 5: we even go there. I made the statement that next
9:44
Speaker 5: should be Chicago, because, as you all know, Chicago's a
9:47
Speaker 5: killing field right now, and they don't acknowledge it, and
9:51
Speaker 5: they say we don't need freedom freedom. He's a dictator.
9:54
Speaker 5: He's a dictator. A lot of people are saying, maybe
9:56
Speaker 5: we like a dictator. I don't like a dictator.
9:59
Speaker 1: I'm not a city and state officials condemned Trump's plans
10:04
Speaker 1: to deploy the National Guard. Mayor Brandon Johnson says the
10:08
Speaker 1: crime rate in Chicago has been falling for years, and
10:12
Speaker 1: Governor J. B. Pritzker says they'll take Trump to court
10:16
Speaker 1: if he tries to send the Guard to Chicago.
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Speaker 6: If we are not even in the top twenty five
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Speaker 6: most dangerous cities, then why are we now being targeted
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Speaker 6: by the Trump administration for a military occupation. We are
10:30
Speaker 6: being targeted because of what and who we represent.
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Speaker 1: The first thing we're gonna do is take him to
10:36
Speaker 1: court because it's illegal.
10:37
Speaker 2: It's unconstitutional.
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Speaker 6: Frankly, it's un American to send troops into an American
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Speaker 6: city the way that he wants to fight crime.
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Speaker 1: There is literally a law on the books that says
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Speaker 1: he's not allowed to do that I've been talking to
10:50
Speaker 1: Professor Harold krent Are the Chicago Kent College of Law.
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Speaker 1: President Trump is threatening to expand his use of the
10:58
Speaker 1: National Guard crackdown on crime in US cities, and after
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Speaker 1: DC and LA, Chicago seems to be the next on
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Speaker 1: his list. Crime statistics for Chicago this year's show at
11:12
Speaker 1: thirty percent reduction in homicides, thirty five percent reduction in robberies,
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Speaker 1: nearly forty percent drop in shootings. Chicago is not on
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Speaker 1: the twenty five most dangerous cities in the US. MEW
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Speaker 1: what authority does he have to send National Guard in?
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Speaker 4: Whatever authority has, it's certainly even less than he had
11:33
Speaker 4: in LA and less than he had in DC. In LA,
11:37
Speaker 4: there was a fiction that there was a type of invasion,
11:42
Speaker 4: if you will, of undocumented into the city until Los Angeles,
11:46
Speaker 4: which prevented the regular law enforcement authorities in California from
11:51
Speaker 4: responding adequately. In addition, that fiction could be spun out
11:57
Speaker 4: that it was difficult to enforce federal law there because
12:00
Speaker 4: of the presence of so many individuals without documentation, and
12:03
Speaker 4: that's what necessitated seating in the National Guard. Those theories
12:08
Speaker 4: can't apply to Chicago. There is no invasion here, and
12:10
Speaker 4: there is no problem of enforcing federal law here. With DC,
12:14
Speaker 4: of course, the President serves in essence as a governor
12:18
Speaker 4: of the National Guard in DC, and so he can
12:20
Speaker 4: call out and approve the use of the National Guard
12:23
Speaker 4: for whatever reason, even though there was a decline in
12:25
Speaker 4: the prime statistics in DC as well. So Chicago's another
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Speaker 4: step forward, and I think it's a very dangerous step forward. Clearly,
12:34
Speaker 4: the Framers didn't trust the idea of a standing army.
12:37
Speaker 4: They were worried about using the army for regular law enforcement.
12:41
Speaker 4: And there is no authority to use the National Guard
12:45
Speaker 4: for those ordinary law enforcement mechanisms as well. And I'm
12:49
Speaker 4: not even trained for it, So we have a specter.
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Speaker 4: In other words, if the President can use call out
12:55
Speaker 4: the National Guard for Chicago, he can call out the
12:58
Speaker 4: National Guard for any reason he wants, and we all
13:01
Speaker 4: should be very deeply concerned about that, because that is
13:04
Speaker 4: edging us one step closer to autocratic rule, because it
13:08
Speaker 4: means that the president can use the National Guard for
13:11
Speaker 4: his own bidding, for whatever reason he wants to, and
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Speaker 4: there are no constraints on his use of armed forces.
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Speaker 1: How do you think that Trump might try to use
13:22
Speaker 1: Title ten of the US Code on Armed Services about
13:27
Speaker 1: the federal deployment of National Guard if there's a rebellion
13:31
Speaker 1: or danger of a rebellion against the authority of the
13:35
Speaker 1: government of the United States, or could he.
13:37
Speaker 3: Try to invoke the Insurrection Act.
13:40
Speaker 4: I mean, there's no insurrection, and I don't think he's
13:42
Speaker 4: not even articulated a possible insurrection. He did try to
13:46
Speaker 4: do something like that for Los Angeles, but he hasn't
13:49
Speaker 4: tried to do that for Chicago, and I think it
13:51
Speaker 4: would be incredibly far fetched. And I agree that if
13:54
Speaker 4: there were federal facilities that were in danger, then he
13:58
Speaker 4: could utilize those powers to protect federal facilities, but that's
14:01
Speaker 4: not the case. Or if ordinary law enforcement had totally
14:05
Speaker 4: fallen apart, he could call in for the Guard in
14:08
Speaker 4: that context as well. We do have a couple of precedents,
14:12
Speaker 4: right we have the presidents of calling out the National
14:14
Speaker 4: Guard to help the desegregation efforts in the nineteen fifties.
14:18
Speaker 4: We have the president of calling out the National Guard
14:21
Speaker 4: where there was really no general typical law enforcement because
14:25
Speaker 4: of the riots that tore the streets up in the
14:27
Speaker 4: nineteen sixties, particularly after M L. K was assassinated. So
14:31
Speaker 4: we have some presidents, but they're not ordinary law enforcement
14:35
Speaker 4: as in Chicago. And so this is simply a dramatic
14:38
Speaker 4: expansion of the ability of a president to call the
14:42
Speaker 4: National Guard if he in fact does so. And I
14:45
Speaker 4: think it's something we should be deeply concerned about.
14:48
Speaker 1: So Chicago is a sanctuary city, right, So could he say, well,
14:54
Speaker 1: Chicago is blocking in some way, They're not helping with
14:59
Speaker 1: the federal immigration enforcement because they're not assisting us in
15:03
Speaker 1: finding out where people are.
15:05
Speaker 4: Yeah, I mean, it could be that the claim here
15:09
Speaker 4: is that Chicago authorities are frustrating federal law enforcement ability
15:15
Speaker 4: to apprehend and deport those without documentation. That's not his
15:19
Speaker 4: claim here. He hasn't stated that, and obviously there's probably
15:24
Speaker 4: no prove of it anyway, But he hasn't even made
15:26
Speaker 4: that as a thin veneer to justify his use of troops.
15:30
Speaker 4: So that would be closer to the LA model for
15:33
Speaker 4: use of troops as opposed to what he said so
15:36
Speaker 4: far about Chicago.
15:38
Speaker 1: And we're waiting still on Judge Brier's decision about pass
15:43
Speaker 1: comatatis in the LA case, but the appellate court there
15:48
Speaker 1: did allow Trump to keep the troops in La.
15:52
Speaker 4: They did, and of course it was on a wasn't
15:55
Speaker 4: the full decision. It was just based upon a stay
15:58
Speaker 4: of what the lower court had ordered. So even after
16:02
Speaker 4: a Judge Briar reaches his decision, there will be an
16:05
Speaker 4: appeal to the Ninth Circuit. But I think it's important.
16:07
Speaker 4: I mean, I think the governor Pritcer in Illinois is
16:12
Speaker 4: ready to file suit as well. And this is the
16:15
Speaker 4: only way, except for a military challenge, that the governor
16:20
Speaker 4: can contest the legitimacy of what the president is trying
16:23
Speaker 4: to accomplish.
16:24
Speaker 1: Also, the Chicago's mayor called on Trump to release something
16:29
Speaker 1: like eight hundred million dollars in anti violence grants that
16:32
Speaker 1: were canceled in April by the Justice Department.
16:36
Speaker 4: No, the point is that, you know, if the president
16:40
Speaker 4: wants Chicago or Los Angeles to enhance their crime fighting ability,
16:46
Speaker 4: then why did it cancel the grants? And it should
16:49
Speaker 4: allow for these communities to hire more police, to get
16:52
Speaker 4: better weapons or even surveillance mechanisms in order to fight crime.
16:58
Speaker 4: And so putting this on the National Guard, who are
17:00
Speaker 4: not trained for that is probably counterintuitive and may result
17:05
Speaker 4: in worse kind of law enforcement than otherwise would take place.
17:09
Speaker 4: And never thing to note is that the president is
17:12
Speaker 4: selected Los Angeles, d C. And Chicago, which are all
17:16
Speaker 4: clearly Democratic strongholds, and he's making no mention of cities
17:21
Speaker 4: like Saint Louis, New Orleans, and Memphis, which have crime
17:26
Speaker 4: in excess of those in DC and Chicago, but happen
17:30
Speaker 4: to be headed by Republican governors. So that again will
17:33
Speaker 4: go give a strong flavor of what the president is
17:37
Speaker 4: trying to do is just sort of show his might
17:41
Speaker 4: in the face of states and cities which would otherwise
17:45
Speaker 4: object to his governance style or in fact the substance
17:49
Speaker 4: of his governing itself.
17:51
Speaker 1: And a judge's rule last week that the Trump administration
17:55
Speaker 1: can't deny funding to Chicago, La, Denver and cities because
18:01
Speaker 1: of policies that limit cooperation with federal immigration efforts because
18:05
Speaker 1: they're sanctuary cities or counties.
18:08
Speaker 4: And this is a reprise of litigation back in the
18:11
Speaker 4: first Trump administration when he tried to remove funding from
18:15
Speaker 4: the so called sanctuary cities. And simply, you can't do
18:19
Speaker 4: that unless Congress gives the green light, and Congress has
18:24
Speaker 4: not allowed police grants, for instance, in this case, to
18:27
Speaker 4: be predicated on the police agreeing to be helpful to
18:31
Speaker 4: ICE agents in rounding up those without documentation. Congress could
18:36
Speaker 4: make that. It would be an interesting policy call. Congress
18:38
Speaker 4: could make it, but it hasn't, and that's what the
18:40
Speaker 4: courts have held.
18:42
Speaker 2: You know.
18:42
Speaker 4: And to go back to the National Guard issue, I'm
18:45
Speaker 4: hoping this is just a headline grabber, kind of in
18:49
Speaker 4: your face moved by the President. But if he really
18:53
Speaker 4: sends troops here, then he can send troops for any
18:56
Speaker 4: reason at all, including what find gim most is around
19:01
Speaker 4: the midterms. You don't want to give the president idea
19:05
Speaker 4: that he can frighten people or deter them from voting
19:09
Speaker 4: by sending National guards to the polling places in various
19:14
Speaker 4: jurisdictions during the midterms. And so that's what frightens me
19:17
Speaker 4: the most. And I think it's important then to fight
19:20
Speaker 4: against the use of the National Guard for sort of
19:23
Speaker 4: personal political reasons, as he's doing in Chicago.
19:27
Speaker 1: And yesterday Trump also signed an executive order establishing specialized
19:33
Speaker 1: units and the National Guard to address crime in cities,
19:38
Speaker 1: though it's unclear how the order will work in practice.
19:42
Speaker 3: What's your take on that.
19:43
Speaker 4: Well, I think that viewed charitably, the executive word is
19:49
Speaker 4: consistent with the Constitution. It's saying, we want to have
19:52
Speaker 4: special training if there is a moment, such as with
19:57
Speaker 4: George Floyd or other of writing, if local law enforcement
20:02
Speaker 4: cannot exercise their authority to keep peace within the cities,
20:06
Speaker 4: that we'll talk like a ready force just in case
20:09
Speaker 4: it's needed by itself. I think the president could probably
20:13
Speaker 4: do that. The only question is when he can deploy
20:17
Speaker 4: this especially trained force. Can he do it again during
20:21
Speaker 4: the midterms. Let's hope not, But just the training by
20:24
Speaker 4: itself seems to me to be within his ability to
20:28
Speaker 4: coordinate as commander in chief.
20:30
Speaker 1: There was a lot of legal news today. Let's turn
20:33
Speaker 1: out to another development. A federal judge throughout the Trump
20:37
Speaker 1: administration's lawsuit against Maryland's entire federal bench that means every
20:44
Speaker 1: federal district judge in Maryland.
20:46
Speaker 3: This was a suit over.
20:47
Speaker 1: In order by the chief Judge of the Maryland District
20:51
Speaker 1: Court that stopped the immediate deportation of migrants challenging their
20:57
Speaker 1: removals for two days. And the just Department had said
21:01
Speaker 1: the automatic pause impeded the president's authority to enforce immigration laws,
21:07
Speaker 1: and it sought a court order blocking it and federal
21:10
Speaker 1: judge Thomas Cullen, a Trump appoint d, in an emphatic
21:14
Speaker 1: ruling that underscored the extraordinary nature of the suit, called
21:19
Speaker 1: the suit potentially calamitous, and he also criticized the administration's
21:24
Speaker 1: attacks on the judiciary, highlighting in a footnote that White
21:29
Speaker 1: House officials in recent months had described judges as rogue, unhinged,
21:35
Speaker 1: and crooked, among other epithets.
21:37
Speaker 4: So what was I think interesting about the opinion is
21:41
Speaker 4: that part of it is predicated on the unity of
21:45
Speaker 4: federal judges as well as the clerk of the court.
21:48
Speaker 4: That may be a little extreme, you know, in terms
21:51
Speaker 4: of the future. But what he also added was that
21:55
Speaker 4: in this context, you would never have an injunction, that
21:59
Speaker 4: the courts would never enjoying courts from enforcing an order
22:03
Speaker 4: that's simply unheard of in the courts of equity and
22:07
Speaker 4: is inconsistent with norms of separation of powers. And so
22:12
Speaker 4: that in essence, the Department of Justice and the Homeland
22:15
Speaker 4: Security didn't have standing to bring the case, and that
22:19
Speaker 4: became much an easier sell because indeed, as we discussed earlier,
22:25
Speaker 4: the government could have easily challenged the standing order in
22:29
Speaker 4: a different way by raising it on appeal and the
22:32
Speaker 4: case that it might lose in terms of the immigration
22:37
Speaker 4: matter before that court. So I don't know all the
22:40
Speaker 4: reasoning will be upheld by the Fourth Circuit, but I
22:44
Speaker 4: think the underlying decision to dismiss this poorly crafted lawsuit
22:48
Speaker 4: will be upheld by the Fourth Circuit.
22:50
Speaker 1: It was hard to see why the Justice Department brought
22:55
Speaker 1: this suit because it is unprecedented, and I use that
22:58
Speaker 1: word a lot lately. And the Trump administration has already
23:02
Speaker 1: filed a notice of appeal. So more to come. Thanks
23:05
Speaker 1: so much, Hal. That's Professor Harold Krent of the Chicago
23:09
Speaker 1: Kent College of Law, coming up next on the Bloomberg
23:12
Speaker 1: Law Show. Who's in charge of the New Jersey US
23:15
Speaker 1: Attorney's Office? I'm June Grosso and you're listening to Bloomberg.
23:20
Speaker 1: The Trump administration has tried various maneuvers to keep Alina Habba,
23:25
Speaker 1: Trump's former personal attorney, at the top of the US
23:29
Speaker 1: Attorney's office in New Jersey, but a federal judge has
23:33
Speaker 1: ruled that Habba's appointment was not lawful and disqualified her
23:37
Speaker 1: from participating in any ongoing cases.
23:40
Speaker 2: I am the pick of the president.
23:42
Speaker 1: I am the pick of Pam BONDI our attorney General,
23:44
Speaker 1: and I will serve this country. The continuing maneuvering and
23:49
Speaker 1: confusion over Habba's role has led to federal criminal cases
23:53
Speaker 1: in New Jersey basically coming to a standstill because no
23:57
Speaker 1: one knows who's in charge, and the judge's decision could
24:01
Speaker 1: mean that any actions taken under Habba since July first
24:06
Speaker 1: are open to challenges by defendants. It could also reverberate
24:10
Speaker 1: across the country because the Justice Department has been using
24:14
Speaker 1: similar complex maneuvers to extend the tenures of other Trump
24:18
Speaker 1: loyalists as interim US attorneys in California, Arizona, New Mexico,
24:24
Speaker 1: and New York. Joining me is Anne Joseph O'Connell, a
24:27
Speaker 1: professor at Stanford Law School. Federal Judge Matthew Brand said
24:32
Speaker 1: that Alina Habba is not lawfully holding the office of
24:36
Speaker 1: the United States Attorney and has been in the position
24:39
Speaker 1: without legal authority since July first. It gets quite complicated,
24:44
Speaker 1: and so please take us through it.
24:46
Speaker 7: It is a lengthy decision with several rulings. Let's march
24:50
Speaker 7: through the opinion to see how the judge made various rulings.
24:54
Speaker 7: So the first thing the judge did was to decide
24:57
Speaker 7: whether Miss Haba was lawfully serving under the specific interim
25:02
Speaker 7: us Attorney provision twenty eight Usc. Five forty six. And
25:07
Speaker 7: when he looked at that provision, he determined that the
25:10
Speaker 7: one hundred and twenty day time limit started when the
25:14
Speaker 7: first appointment was made under the statute, So that first
25:18
Speaker 7: appointment was not actually Miss Haba, It was mister Giodano,
25:24
Speaker 7: and his appointment started, and the one hundred and twenty
25:27
Speaker 7: days ran from that and ended, according to the judge,
25:30
Speaker 7: on July first. So although Miss Haba had more days
25:36
Speaker 7: if you were counting to one hundred twenty from when
25:38
Speaker 7: she started, the judge held that was not the right
25:41
Speaker 7: way to consider the clock. So that was the first
25:44
Speaker 7: decision that starting on July first, miss Haba was not
25:48
Speaker 7: lawfully serving under section five forty six. Now there was
25:52
Speaker 7: a ruling kind of connected about whether the government could
25:56
Speaker 7: turn to the Vacancies Act, because the criminal defendants at
25:59
Speaker 7: issue argued, well, if Miss Hobbo was not lawfully serving
26:03
Speaker 7: under five forty six, the government could not turn to
26:06
Speaker 7: the Federal Vacancy's Reform Act, which provides a way of
26:09
Speaker 7: getting in temporary acting officials, not just for US attorneys,
26:13
Speaker 7: but a whole range of positions, and the criminal defendants
26:15
Speaker 7: argued that actually the Vacancies Act did not apply to
26:18
Speaker 7: US attorneys because of five forty six, and this was
26:22
Speaker 7: the one place the judge actually ruled for the government.
26:25
Speaker 7: The judge said that five forty six was not the
26:28
Speaker 7: only mechanism for temporary service for US Attorney's spots. He
26:34
Speaker 7: said that the Federal Vacancy's Reform Act was available now.
26:37
Speaker 7: That then turns to the next ruling. He said that
26:40
Speaker 7: Miss Habo was not lawfully serving under the Federal Vacancy's
26:44
Speaker 7: Reform Act, so the Act applied, but she was not
26:47
Speaker 7: lawfully serving, and the primary reason for that ruling was that,
26:52
Speaker 7: as he interpreted Section three three four five of the
26:55
Speaker 7: Federal Vacancy's Reform Act, you cannot have a first assist
27:00
Speaker 7: to the vacant Senate confirmed rule be named after the
27:05
Speaker 7: vacancy in the position, And for the judge, the vacancy
27:08
Speaker 7: is not the end of interim service under five forty six.
27:13
Speaker 7: It's the end of when the last Senate confirmed US
27:16
Speaker 7: attorney left, and so ms Haba was put into a
27:20
Speaker 7: first assistant slot after the prior confirmed US Attorney left
27:25
Speaker 7: and the judge held that was not permitted under the
27:28
Speaker 7: Federal Vacancy's reformat.
27:30
Speaker 3: What about her delegating to others?
27:32
Speaker 7: There was one more ruling about if she was not
27:35
Speaker 7: serving under the Federal Vacancy's Reformact, could she perform the
27:39
Speaker 7: job through what is known as delegation? And that was
27:42
Speaker 7: the final ruling by the judge in the seventy seven
27:45
Speaker 7: page opinion, and he held that under another provision of
27:49
Speaker 7: the Vacancy's Act three three four seven, that Miss Habba
27:53
Speaker 7: could not perform the role of the US Attorney without
27:57
Speaker 7: the acting title and through delegation. He said that also
28:00
Speaker 7: was not permitted.
28:02
Speaker 1: Judge Brawn was concerned about allowing stacked interim appointments that
28:08
Speaker 1: would allow the administration to effectively avoid the confirmation process
28:14
Speaker 1: and do away with the Senate's advice and consent.
28:18
Speaker 7: Yes, so this was about his ruling on twenty eight USC.
28:22
Speaker 7: Five forty six. This is where you get what are
28:24
Speaker 7: known as interim US attorneys. There's this one hundred and
28:27
Speaker 7: twenty day time limit, and then after that the district
28:30
Speaker 7: Court may choose someone to serve in the role until
28:33
Speaker 7: a Senate confirmed person comes into the position, and the
28:37
Speaker 7: government argued that it could make successive one hundred and
28:42
Speaker 7: nineteen day appointments so that it never hit the one
28:45
Speaker 7: hundred and twentieth day, where the district Court would then
28:48
Speaker 7: have a role, and the judge rejected that. The judge said, well,
28:51
Speaker 7: if you can do that, you could have one hundred
28:53
Speaker 7: and nineteen days on one appointment, in one hundred nineteen
28:55
Speaker 7: days on another appointment and keep going. And indeed, the
28:58
Speaker 7: judge said, you could have a longer term for an
29:02
Speaker 7: interim US attorney than you could for a Senate confirmed
29:06
Speaker 7: US attorney, because there's a statutory provision that says that
29:09
Speaker 7: Senate confirmed US attorneys have a four year term. Of course,
29:13
Speaker 7: they're at will leaders, so the president can fire them
29:15
Speaker 7: before that, but they can't serve longer than four years.
29:18
Speaker 7: And he said, under the government's interpretation of five forty six,
29:21
Speaker 7: you could actually get in someone for longer than four years.
29:24
Speaker 1: Do you think that determination is correct?
29:27
Speaker 3: I do.
29:28
Speaker 7: The judge relied primarily on the text of five forty
29:32
Speaker 7: six in making its ruling. Looking at appointment, there's discussion
29:36
Speaker 7: of definite and indefinite articles. I think the text is
29:40
Speaker 7: a bit more ambiguous. I would read the text to
29:43
Speaker 7: say that it is possible that you could have a
29:47
Speaker 7: successive one hundred and twenty day or one hundred nineteen
29:50
Speaker 7: day appointments. But the purpose, right, The purpose when Congress
29:54
Speaker 7: put these time limits back in in two thousand and seven,
29:57
Speaker 7: was clear right. They wanted restrict on the Attorney general's
30:02
Speaker 7: powers to name inter remuus attorneys. So for me, a
30:05
Speaker 7: text plus a purpose argument would say, yes, you can't
30:09
Speaker 7: just have successive one hundred and nineteen day appointments. But
30:12
Speaker 7: the judge did talk a little bit about purpose and
30:15
Speaker 7: legislative history, and I guess I would wait the purpose
30:19
Speaker 7: and legislative history more than the judge did and acknowledge
30:24
Speaker 7: that the text is more ambiguous than the ruling does.
30:27
Speaker 1: But you would come out at the same point as
30:29
Speaker 1: the judge.
30:30
Speaker 7: Yeah, that you could have one one hundred and twenty
30:33
Speaker 7: day appointment, and then the district court could name someone,
30:37
Speaker 7: or you could turn to the federal vacancy's re format
30:41
Speaker 7: New Jersey.
30:42
Speaker 1: You know, criminal cases are at a standstill. Arraignments have
30:46
Speaker 1: been delayed, hearings, plea agreements, grand jury proceedings, even a
30:51
Speaker 1: trial who is in charge now the Deputy Attorney General,
30:56
Speaker 1: Todd Blanche, the number two at the Justice Department, has
30:59
Speaker 1: been put his name on some of the New Jersey
31:02
Speaker 1: Office's work in the last couple of days. I mean,
31:05
Speaker 1: does that solve the problem who's in charge?
31:09
Speaker 7: Well, it's just the problem temporarily. I mean, if mister
31:12
Speaker 7: Blanche is a fixing his signature, that would be okay
31:16
Speaker 7: because under the various statutory provisions, the Deputy Attorney General
31:20
Speaker 7: has the same power as the Attorney General, who has
31:24
Speaker 7: power to do anything that a US attorney might do,
31:28
Speaker 7: so that would be okay. I think they need to
31:30
Speaker 7: sort all of this out. I mean, the judge did
31:33
Speaker 7: stay his own ruling. There was no request from the
31:36
Speaker 7: government to stay it. He stayed in himself until it
31:39
Speaker 7: gets sorted out on appeal. Right, this is going to
31:41
Speaker 7: get sorted out on appeal one way or the other.
31:43
Speaker 7: And the government I think has a decent chance of
31:46
Speaker 7: winning on appeal. But obviously if the government does not
31:48
Speaker 7: win on appeal, they don't want to create more problems
31:51
Speaker 7: for themselves in the intervening period.
31:53
Speaker 1: And didn't the judge say that HABA can't even supervise
31:57
Speaker 1: And I take it that what she has been doing
31:59
Speaker 1: is supervising because she has no experience as a prosecutor.
32:04
Speaker 7: Well, it's a little unclear, right, She's not supposed to
32:07
Speaker 7: be carrying out the role of the US attorney. So
32:11
Speaker 7: he does allow for a special attorney to the Attorney
32:16
Speaker 7: General to do some tasks, you know, that would be
32:20
Speaker 7: helpful in the US Attorney's office. And indeed, we can
32:23
Speaker 7: get to this whole point about delegation, you know, actions,
32:26
Speaker 7: whether they could be void but could be ratified later.
32:30
Speaker 7: So there is some room for her to act. But
32:34
Speaker 7: it's going to create a lot of headaches until or
32:37
Speaker 7: unless the Appeals Court reverses.
32:40
Speaker 1: The Trump administration has done similar maneuvering with other US
32:46
Speaker 1: Attorney's offices in Los Angeles, Nevada, New Mexico, and upstate
32:51
Speaker 1: New York, where they've tried to sidestep or override the
32:56
Speaker 1: Senate confirmation and the judicial appointment process. Does this ruling
33:01
Speaker 1: implicate those US attorneys as well?
33:04
Speaker 7: Yeah, So anyone who is serving as an acting US
33:09
Speaker 7: attorney because they were named to the first assistant role
33:13
Speaker 7: under this judge's ruling, if they were named the first
33:16
Speaker 7: assistant rule after the departure of the last Senate confirmed
33:19
Speaker 7: US attorney who almost certainly was a Biden administration pick
33:23
Speaker 7: in many cases, right, they left before January twentieth at noon.
33:27
Speaker 7: Those people, under this reasoning, would not be properly serving
33:31
Speaker 7: under the Vacancies Act.
33:32
Speaker 1: We can anticipate that defendants and those jurisdictions are going
33:36
Speaker 1: to file suits as well, challenging the authority of the
33:40
Speaker 1: US attorneys.
33:41
Speaker 7: Yes, and it's not just limited to US attorneys. The
33:44
Speaker 7: ruling about the Federal Vacancies Act which this judge made
33:48
Speaker 7: says that any first assistant who is serving as the
33:51
Speaker 7: default acting official under the Federal Vacancy's Reform Act has
33:54
Speaker 7: to have been in place before the departure of the
33:57
Speaker 7: last Senate confirmed person in a cup position. Well, that
34:01
Speaker 7: covers US attorneys, but it covers hundreds of more positions.
34:05
Speaker 7: So all of those first assistants you know, now leading
34:08
Speaker 7: that organization whatever federal agency in an acting capacity, those
34:12
Speaker 7: people too, are serving in violation.
34:15
Speaker 1: So that would have really broad implications.
34:17
Speaker 7: Yeah, So the first thing we were talking about, you know,
34:19
Speaker 7: these successive one hundred and nineteen day appointments, that's only
34:22
Speaker 7: about US attorneys, right, that's you know about ninety something positions.
34:27
Speaker 7: The second ruling about the timing of the first assistant
34:30
Speaker 7: that applies to hundreds of positions. And I should note
34:34
Speaker 7: that for both of these rulings, actually the one specific
34:37
Speaker 7: to US attorneys on five forty six and the timing
34:40
Speaker 7: of the first assistant, this is the first judicial ruling
34:44
Speaker 7: on these issues anywhere, right, So we don't have a
34:49
Speaker 7: ruling about successive US attorney in the interim capacity under
34:54
Speaker 7: five forty six. There's sort of language in a footnote
34:57
Speaker 7: in a much older case which that is actually permitted,
35:01
Speaker 7: but we've never had a ruling from any court saying
35:03
Speaker 7: that successive interim US attorney positions are prohibited under five
35:07
Speaker 7: forty six, and the much broader ruling that the first
35:10
Speaker 7: assistant has to be in place prior to the departure
35:13
Speaker 7: of the last confirmed person. This judge is also the
35:16
Speaker 7: first to make that conclusion, and.
35:19
Speaker 1: The Trump administration has already said they're appealing the decision.
35:23
Speaker 1: So the Third Circuit, I guess, will be the first
35:26
Speaker 1: circuit to rule on this as well.
35:28
Speaker 7: That's right. And then there's another ruling that has implications
35:32
Speaker 7: far beyond US attorneys. So once the judge decided that
35:36
Speaker 7: Miss Habba was not lawfully serving under the Federal Vacancy's
35:39
Speaker 7: Reform Act. He had to turn to the fallback argument
35:43
Speaker 7: of the government, which was that it's okay if she
35:46
Speaker 7: doesn't have the formal acting title under the Federal Vacancy's
35:50
Speaker 7: Reform Act, Miss Bondi has named her under section five
35:55
Speaker 7: fifteen in other provisions regarding the Department of Justice as
35:58
Speaker 7: a special attorney to the Attorney General, and in that rule,
36:02
Speaker 7: according to Miss Bondi and the government, miss Haba could
36:06
Speaker 7: carry out all the functions, all the non exclusive functions
36:10
Speaker 7: of the US Attorney position through delegation. And the judge
36:15
Speaker 7: rule that this is not permissible, and this does go
36:18
Speaker 7: against other court rulings. So the Ninth Circuit and the
36:23
Speaker 7: Court of Appeals for the Federal Circuit have found that
36:27
Speaker 7: under a slightly different provision but that also talks about
36:30
Speaker 7: functions and duties three three, four, eight of the Vacancies Act,
36:33
Speaker 7: that the government can delegate non exclusive duties down to
36:38
Speaker 7: someone and there's no problem there. And this is widely
36:43
Speaker 7: done in the government, in large part because of a
36:46
Speaker 7: broken appointment system. There are many Senate confirmed roles of
36:49
Speaker 7: assistance secretary and the like kind of lower levels that
36:52
Speaker 7: are delegated down and this ruling would prevent.
36:56
Speaker 3: That any final thoughts.
36:59
Speaker 7: This ruling by Chief Judge Brand did not actually make
37:04
Speaker 7: any constitutional decision because everything could be resolved on statutory grounds.
37:10
Speaker 7: There was no need to make constitutional rulings. So that's
37:13
Speaker 7: one thing. I think the Constitution was in the background
37:17
Speaker 7: as he was interpreting statutes and he says that, but
37:19
Speaker 7: there are no constitutional rulings in this decision. The second
37:24
Speaker 7: thing that struck me was about when the vacancy occurred, right,
37:30
Speaker 7: because we have all these clocks. Right, we had this
37:33
Speaker 7: discussion about a clock on the Interim Service under five
37:36
Speaker 7: forty six, and then we have a clock under the
37:37
Speaker 7: Federal Vacancy's REFORMA Act, and the Office of Legal Counsel
37:42
Speaker 7: in an opinion in two thousand and three, held that
37:44
Speaker 7: these clocks run separately. But what's interesting to me is
37:48
Speaker 7: that the judge in a footnote, actually footnote one hundred
37:51
Speaker 7: and fifty three, just to give a flavor of how
37:53
Speaker 7: complicated the decision is, he says that he dates the
37:57
Speaker 7: vacancy for the purposes of the Federal Vacancy Reform Act,
38:01
Speaker 7: as not when the interim service ended. Instead, it's when
38:06
Speaker 7: the last Senate confirmed person left. And this matters to
38:09
Speaker 7: the Vacancy's Act clocks. So that means that we're counting right.
38:15
Speaker 7: Either the three hundred days at the start of an
38:16
Speaker 7: administration were counting back to January twentieth. So even if
38:23
Speaker 7: the administration found someone who did qualify under the reasoning
38:28
Speaker 7: in this opinion, for example, they were Senate confirmed to
38:31
Speaker 7: another job, right, that's section three three four.
38:33
Speaker 5: Five A two.
38:34
Speaker 7: Right, you could make Todd Blanche the acting US Attorney
38:39
Speaker 7: for the District of New Jersey under the Federal Vacancy's
38:41
Speaker 7: Reform Act, and this judge would not have a problem
38:43
Speaker 7: with that. But the time clock for mister Blanche to
38:46
Speaker 7: use the title Acting US Attorney for the District of
38:50
Speaker 7: New Jersey dates back from when the last Senate confirmed
38:54
Speaker 7: person left, and it kind of gets rolled over with
38:56
Speaker 7: the new administration, so from January twentieth, So it's actually
39:00
Speaker 7: not that much time even if you actually got someone
39:03
Speaker 7: who met the requirements under the Federal Vacancies Reform Act.
39:06
Speaker 7: And then the last thing I'll say is there is
39:08
Speaker 7: this complex reasoning at the end about what is void
39:14
Speaker 7: and what can be ratified and Chief Judge Brand is
39:19
Speaker 7: trying to distinguish this case from the Federal Circuit case
39:23
Speaker 7: and the Ninth Circuit case by saying those cases were
39:27
Speaker 7: about kind of what could be ratified under section three
39:32
Speaker 7: three four eight, and he's focusing instead on section three
39:37
Speaker 7: three four seven, which talks about how the Vacancies Act
39:40
Speaker 7: is exclusive with regard to functions and duties of covered positions.
39:45
Speaker 7: And so he says, well, Ms Haba can't do all
39:49
Speaker 7: of this stuff under three three four seven, but I'm
39:52
Speaker 7: going to acknowledge that it seems like anything she could
39:56
Speaker 7: try to do is non exclusive, so it could ratified
40:01
Speaker 7: under three three four eight by you know, the Attorney
40:04
Speaker 7: General for example, someone higher up. And so this gets
40:08
Speaker 7: into a little bit of weirdness where the judge at
40:10
Speaker 7: the end is saying, well, she can't do it, but
40:14
Speaker 7: if she does it, someone else could ratify it. And
40:18
Speaker 7: so I think this issue about three three four seven
40:21
Speaker 7: and three three four eight. I think that's really going
40:24
Speaker 7: to be the heart of the government's appeal, along with
40:27
Speaker 7: this idea of the timing of the first assistant.
40:29
Speaker 1: Thanks so much, Ed for taking us through this complex area.
40:33
Speaker 1: That's Professor and Joseph O'Connell of Stanford Law School. And
40:38
Speaker 1: that's it for this edition of The Bloomberg Law Show.
40:40
Speaker 1: Remember you can always get the latest legal news on
40:43
Speaker 1: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,
40:47
Speaker 1: and at www dot Bloomberg dot com slash podcast Slash Law,
40:52
Speaker 1: And remember to tune into The Bloomberg Law Show every
40:55
Speaker 1: weeknight at ten pm Wall Street Time. I'm June Grosso
40:59
Speaker 1: and you're listening to Bloomberg.
41:06
Speaker 3: Hmm