Latest / Bloomberg Law / Weekend Law: Transgender Ban, Unorthodox Plea Deal & Health Suit

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Weekend Law: Transgender Ban, Unorthodox Plea Deal & Health Suit · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grosseo from Bloomberg Radio. Look,
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Speaker 1: I just want to keep serving. I'm at nineteen and
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Speaker 1: a half years, i have sixty combat missions in Iraqi, Afghanistan.
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Speaker 1: I'm a certified test pilot, flown over twenty one airframes
0:18
Speaker 1: at seventeen hundred flight hours in aircraft like the F
0:20
Speaker 1: eighteen that you saw on top Gun two. I just
0:23
Speaker 1: want to keep doing my job.
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Speaker 2: Emily Shilling is a decorated Navy commander in combat pilot.
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Speaker 2: She is also transgender and is challenging President Trump's ban
0:34
Speaker 2: on transgender people serving in the military. A federal judge
0:38
Speaker 2: had blocked the ban, finding there was no evidence that
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Speaker 2: transgender troops posed a threat to military readiness, but this
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Speaker 2: week the conservative justices on the Supreme Court, over the
0:50
Speaker 2: descents of the three liberal justices, pause that order to
0:54
Speaker 2: allow the Trump administration to start discharging thousands of transgender
0:59
Speaker 2: service members, including experienced officers who've served openly for years.
1:05
Speaker 2: Defense Secretary Pete Hegseth said the military is leaving wokeness
1:10
Speaker 2: and weakness behind.
1:12
Speaker 3: No more pronouns, no more climate change obsession, no more
1:20
Speaker 3: emergency vaccine mandates, no more dudes in dresses. We're done
1:26
Speaker 3: with that.
1:26
Speaker 2: My guest is constitutional law expert David super a professor
1:30
Speaker 2: at Georgetown Law. This is a one paragraph order, so
1:35
Speaker 2: we have no idea what their reasoning was. We just
1:38
Speaker 2: know that the three liberal justices dissented. What's your take
1:42
Speaker 2: on this decision.
1:43
Speaker 4: I think it's disappointing because the plainiffs made a compelling case.
1:49
Speaker 4: This looks like a classic equal protection claim. The executive order,
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Speaker 4: as plainiffs say, is dripping with consmpt or transgender people.
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Speaker 4: So this is big a treat not military preparedness, and
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Speaker 4: I would have hoped the Court would have treated it accordingly.
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Speaker 4: But that doesn't mean that they've resolved it on the merits.
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Speaker 2: A federal judge in Washington State had blocked the ban.
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Speaker 2: Actually two federal judges have blocked it. Judge Benjamin Settle said,
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Speaker 2: it's not an especially close question. Will you tell us
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Speaker 2: about the claims of the transgender troops in this case?
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Speaker 4: There? I think most central claim is that they're being
2:31
Speaker 4: denied equal protection of the law. The Supreme Court is
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Speaker 4: long held that the Fifth Amendment's requirement of due process
2:40
Speaker 4: implicates equal protection of the law, and that the federal
2:44
Speaker 4: government may not deny people equal protection, particularly if it
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Speaker 4: is discriminating on the basis of a historically sensitive category.
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Speaker 4: The soldiers are alleging that they're being discriminated against both
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Speaker 4: because of sex and because of their trans gender status,
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Speaker 4: and that the government has nowhere near enough adequate justification
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Speaker 4: for doing this.
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Speaker 2: In a case like this, shouldn't they have allowed the
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Speaker 2: status quo to remain in place now the Trump administration
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Speaker 2: is going to be able to discharge thousands of troops.
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Speaker 4: That certainly would be the usual practice and the practice
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Speaker 4: the Court has insisted on in many cases involving the
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Speaker 4: Biden administration, where they prohibited the change from taking place
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Speaker 4: until it was properly litigated. This opinion from the District
3:35
Speaker 4: Court in Washington is quite long, quite detailed, quite careful.
3:40
Speaker 4: You can agree with it or not. That it is
3:42
Speaker 4: certainly not a casual opinion, and one would expect that
3:49
Speaker 4: it would stand and preserve the status quo unless there
3:53
Speaker 4: was a compelling reason otherwise. It's disappointing that the Supreme
3:57
Speaker 4: Court was unable or unwilling to state any compelling reason
4:01
Speaker 4: for this change of the status quo.
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Speaker 2: At the Supreme Court, what the Trump administration argue was
4:06
Speaker 2: that judges are required to show substantial deference to the
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Speaker 2: Defense Department's judgment on military issues. Do you think that
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Speaker 2: deference is the main reason why the Supreme Court decided
4:20
Speaker 2: to lift the injunction.
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Speaker 4: Only suspect it is the President and has been asking
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Speaker 4: for deference on many military and foreign affairs matters. The
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Speaker 4: Court denied him that deference on his efforts to use
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Speaker 4: the Alien Enemies Act. And my guess is the the
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Speaker 4: Court is trying to balance the scales in that regard.
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Speaker 2: And as far as whether irreparable injury will be suffered,
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Speaker 2: the order requires the transgender troops to voluntarily separate from
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Speaker 2: the military or face quote involuntary separation, which is a
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Speaker 2: stain on their records that could deny them veterans' benefits,
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Speaker 2: So that scenario seems like irreparable injury.
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Speaker 4: I mean, in principle, the administration could be ordered to
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Speaker 4: restore their prior status if it ultimately loses this litigation.
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Speaker 4: But the whole point of the reparable injury is that
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Speaker 4: litigants are forced to suffer circumstances that can't be fully corrected,
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Speaker 4: and in the best case scenario, having one's military service
5:30
Speaker 4: interrupted having to gamble one's thea benefits away. All of
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Speaker 4: that is classic irreparable injury.
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Speaker 2: In Jump's first term, the Supreme Court allowed an earlier
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Speaker 2: transgender military band to take effect, but that first ban
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Speaker 2: exempted current troops, so it was more like a ban
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Speaker 2: on enlistment. This goes further because it's going to allow
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Speaker 2: them to discharge people who are currently served.
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Speaker 4: Yes, this is very different than what we saw before,
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Speaker 4: and that's I think the core of what the lower
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Speaker 4: court found is that there simply was no evidence to
6:11
Speaker 4: support this. If the government had an important reason for
6:16
Speaker 4: an action, then deference would owde and the lower court
6:21
Speaker 4: firmly upheld that. But it found that this was not
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Speaker 4: a military judgment but a political judgment by the president
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Speaker 4: that the Secretary of Defense carried out without gathering any
6:34
Speaker 4: evidence that these people are not able to serve their
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Speaker 4: country effectively. And what's striking about the plaintiffs in this
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Speaker 4: case is that we know a lot about them. They've
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Speaker 4: been serving, they've been performing, and if they weren't, they
6:51
Speaker 4: could certainly be thrown out on an individual basis, But
6:55
Speaker 4: throwing them out on the basis of prejudice when we
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Speaker 4: have ample evidence that they're effective sol and service people.
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Speaker 4: Is disturbing and it's ignorant.
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Speaker 2: I'm surprised that one of the three liberals didn't write
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Speaker 2: a descent.
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Speaker 5: Are you not?
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Speaker 4: Necessarily if the liberals write a descent, then either the
7:14
Speaker 4: majority or some justice in the majority write an opinion
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Speaker 4: defending what was done, and that would tend to lock
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Speaker 4: in positions. This is such a disturbing and difficult to
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Speaker 4: justify action that I think the liberals may have decided
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Speaker 4: that it's best that no one put pen to paper
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Speaker 4: any more than necessary right now and hope that this
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Speaker 4: can be reversed when it's heard on the merits.
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Speaker 2: So this was about the order from the judge in
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Speaker 2: Washington State. A judge in Washington, DC has also blocked
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Speaker 2: the policy, and the Court of Appeals for the DC
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Speaker 2: Circuit put that on hold temporarily while it heard or arguments.
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Speaker 2: I mean, how does that case work out when you
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Speaker 2: have the Supreme Court lifting the injunction of the Washington
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Speaker 2: State judge.
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Speaker 4: That's precisely why the absence of opinions is so significant
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Speaker 4: and so telling. Here Panels in the Ninth Circuit and
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Speaker 4: the DC Circuit will write opinions about this, and it
8:21
Speaker 4: will almost certainly come back to the Supreme Court on
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Speaker 4: the merits. So it's really wide open. There are many
8:27
Speaker 4: grounds for denying a stay or granting a stay, and
8:33
Speaker 4: precisely because the Court didn't write an opinion, we don't
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Speaker 4: know which of those it is.
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Speaker 6: It could be.
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Speaker 4: Something as technical as concerns about the standing of plaintiffs
8:45
Speaker 4: or concerned about whether they made a proper demonstration of
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Speaker 4: irreparable injury. So there's nothing about this action that prejudges
8:54
Speaker 4: the merits. They have lifted injunctions in other cases saying
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Speaker 4: we don't think the plaintiffs are likely to prevail on
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Speaker 4: the merits. They didn't say that here.
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Speaker 2: So if this could come back to the Court and
9:07
Speaker 2: the justices could have a different opinion.
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Speaker 4: Well it would come back to the Court in a
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Speaker 4: different form, and they could very well be inclined on
9:18
Speaker 4: the merit to find for the plaintiffs, even if they
9:21
Speaker 4: didn't think an injunction pending litigation was appropriate.
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Speaker 2: I also want to ask you about a controversial comment
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Speaker 2: by President Trump on Meet the Press last Sunday. Don't
9:34
Speaker 2: you need to uphold the Constitution of the United States?
9:36
Speaker 2: As press?
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Speaker 4: I don't know. I have to respond by saying, again,
9:41
Speaker 4: I have brilliant lawyers.
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Speaker 7: That work for me, and they are going to obviously
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Speaker 7: follow what the Supreme Court said.
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Speaker 2: I mean, in the past he has talked about his
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Speaker 2: Article two powers under the Constitution.
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Speaker 4: Well, the Constitution has many things in it. It has
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Speaker 4: Article too, which I'm sure he feels in the to
10:00
Speaker 4: uphold than those pesky Article one and Article three and
10:04
Speaker 4: Bill of Rights. Perhaps he's less enthusiastic about those. I
10:07
Speaker 4: think that the people that need to hear his remarks
10:10
Speaker 4: are the Supreme Court, and the Supreme Court has, in
10:14
Speaker 4: a variety of ways, all spring then kicking the can
10:20
Speaker 4: down the road and hoping the administration will come around
10:24
Speaker 4: to acting lawfully. Arguably, the action we were discussing concerning
10:29
Speaker 4: the transgender ban in the military is another example of
10:33
Speaker 4: the court kicking things down the road. But a president
10:36
Speaker 4: who has harshly criticized judges, called some judges that he
10:43
Speaker 4: appointed communists, and has expressed great indifference about whether to
10:49
Speaker 4: comply with Supreme Court decrees and haves not complied with
10:53
Speaker 4: several Supreme Court and lower Court decrees, is not going
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Speaker 4: to voluntarily change too. And the Supreme Court is going
11:02
Speaker 4: to have to decide whether they are going to insist
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Speaker 4: upon compliance with the law.
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Speaker 2: They'll certainly have opportunities to do that considering the record
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Speaker 2: number of emergency applications from the Trump administration to the
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Speaker 2: Supreme Court. Thanks for joining me, David. That's Professor David
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Speaker 2: Super of Georgetown Law. I'm June Grosso, and you're listening
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Speaker 2: to Bloomberg.
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Speaker 4: We the jury find the defendant Benjamin David Elliott guilty
11:28
Speaker 4: of murder, is charging the indictment.
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Speaker 8: We the jury, being gullian, powdered and sworn to find
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Speaker 8: the defendant Adamkoy guilty of murder as he stands charge
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Speaker 8: in count one of the indictment, sign this fourth day
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Speaker 8: of November twenty twenty four.
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Speaker 4: The jury unanimously finds the murder willful, deliberate, and premeditated.
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Speaker 1: The jury unanimously finds the murder was committed by means
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Speaker 1: of lying.
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Speaker 4: In wait.
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Speaker 2: No matter how it's phrased, a jury verdict is considered sacrosanct.
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Speaker 2: A unanimous decision reached by jurors beyond beyond a reasonable
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Speaker 2: doubt after deliberating on the evidence presented in a criminal trial,
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Speaker 2: but in a completely unorthodox move, the new US attorney
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Speaker 2: in Los Angeles is interfering with a jury's verdict of guilt.
12:15
Speaker 2: After a three day trial, a jury convicted former LA
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Speaker 2: County Sheriff's deputy Trevor Kirk of a felony for using
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Speaker 2: excessive force when he assaulted a black woman outside a
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Speaker 2: supermarket two years ago. He's facing a ten year prison
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Speaker 2: sentence for that felony conviction. But now, in an extraordinary,
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Speaker 2: almost unheard of move, the US Attorney Bill Aseli is
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Speaker 2: trying to override the jury's verdict by giving Kirk a
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Speaker 2: plea deal, allowing him to plead to a misdemeanor, and
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Speaker 2: asking the trial judge to strike the jury's finding. Three
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Speaker 2: LA prosecutors have resigned in protest. My guest is former
12:56
Speaker 2: federal prosecutor Jimmy Garoula, a professor at Notre Dame Lassuit Goal. So, Jimmy,
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Speaker 2: this former sheriff's deputy is supposed to be sentenced this
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Speaker 2: month on a felony conviction, facing ten years in prison,
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Speaker 2: and then suddenly the new US attorney comes in and
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Speaker 2: gives him a deal to plead to a misdemeanor and
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Speaker 2: ask the judge to strike the jury's finding that Kirk
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Speaker 2: injured the victim, which is what made it a felony.
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Speaker 6: Well, it's an extraordinary action and it doesn't appear to
13:27
Speaker 6: be justified based on the facts or the law. And
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Speaker 6: when I say that, what I mean is that if
13:32
Speaker 6: the claim was that he had not received a fair trial, well,
13:36
Speaker 6: that's the purpose of a direct appeal. The defendant would
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Speaker 6: appeal the conviction and highlight the heirs or alleged airs
13:43
Speaker 6: that were conducted during the jury trial. But there doesn't
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Speaker 6: appear to be any allegation by the state or the
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Speaker 6: defendant that his trial was not fair, did not comport
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Speaker 6: with due process of law. Alternatively, if the claim is, oh,
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Speaker 6: we have newly discovered evidence that proves his innocence, well
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Speaker 6: there's a whole set of post conviction proceeds to deal
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Speaker 6: with that process, to petition the court through a petition
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Speaker 6: for post conviction relief to vacate the conviction. And there's
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Speaker 6: no claims relegations made to that effect that, oh, you know,
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Speaker 6: he's actually innocent and we just learned after the conviction
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Speaker 6: of this new evidence that proves his innocence. And so
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Speaker 6: then the question is, well, what is a justification. What's changed?
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Speaker 6: What's a justification for this extraordinary action basically to override
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Speaker 6: the verdict of the jury. And it appears that it's
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Speaker 6: simply that there's been a change of administration. There's a
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Speaker 6: new US attorney, and he was prosecuted under the previous
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Speaker 6: Biden administration, at least the initial indictment was brought at
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Speaker 6: that time and the charges were filed, and the new
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Speaker 6: sheriff in town wants to undo what the jury did,
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Speaker 6: which suggests to me that the motivation or justification is
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Speaker 6: purely political.
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Speaker 2: Yeah, and there is no explanation for why they're giving
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Speaker 2: Kirk this plea deal. And the trial judge in the
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Speaker 2: case denied emotion by the defense for acquittal last month
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Speaker 2: and said Kirk acted aggressively towards the woman from the outset,
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Speaker 2: and then the footage of the incident was sufficient evidence
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Speaker 2: for a jury to find that he'd had used objectively
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Speaker 2: unreasonable force.
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Speaker 6: Yeah. So as a matter of fact, the court is
15:13
Speaker 6: finding that there was sufficient evidence presented a trial to
15:16
Speaker 6: justify the conviction. And as a result, the defendant received
15:19
Speaker 6: the full panoply of due process protections. I mean, he
15:22
Speaker 6: was represented by counsel prosecution had to prove his guilt
15:26
Speaker 6: beyond a reasonable doubt. The jury had to find him
15:28
Speaker 6: guilty unanimously. And so there again does not appear to
15:32
Speaker 6: be any factual basis justification or legal justification for overturning
15:37
Speaker 6: the conviction. And what it suggests to me is that
15:40
Speaker 6: this is another example of the Trump administration kind of
15:44
Speaker 6: ignoring or evading the rule of law in the case
15:48
Speaker 6: of undocumented immigrants. In the claim is well, they're not
15:51
Speaker 6: entitled to do process in this particular case with respect
15:54
Speaker 6: to Deputy Trevor Kirk, he received full due process, but
15:59
Speaker 6: the administrator, the Trump administration, didn't like the result. And
16:02
Speaker 6: because they didn't like the result, then they're seeking to
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Speaker 6: somehow vacate the jury conviction, which I think undermines the
16:09
Speaker 6: rule of law and undermines the public's confidence in the
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Speaker 6: criminal justice system and the validity of jury convictions.
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Speaker 2: Also, the four federal prosecutors who are working on the
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Speaker 2: case refuse to sign the plea agreement and withdrew from
16:23
Speaker 2: the case, and then three of them, including the chief
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Speaker 2: of the Public Corruption and Civil Rights Section, resigned from
16:29
Speaker 2: the office.
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Speaker 6: Yeah, they stepped down, I mean, which was an expression
16:32
Speaker 6: of their disagreement with this result and their perception understanding
16:37
Speaker 6: that this was just an unfair, unjustified action by their supervisor,
16:41
Speaker 6: and again is not justified by any legal principle and
16:45
Speaker 6: any legal president, any legal authority. And you know, there's
16:49
Speaker 6: kind of a parallel here. I mean with respective plea bargains.
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Speaker 6: For example, as a defendant enters into a plea bargain,
16:55
Speaker 6: he may withdraw the plea bargain after the fact, but
16:59
Speaker 6: only based upon a finding by the court that withdrawing
17:02
Speaker 6: the Guilli plea would be in the interests of justice.
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Speaker 6: And so what's the standard here if the judges ultimately
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Speaker 6: to decide whether or not a valid jury verdict should
17:12
Speaker 6: be overridden for political considerations. I mean, that doesn't strike
17:16
Speaker 6: me as as advancing the interests of justice. In fact,
17:20
Speaker 6: it's just the opposite. It's ignoring justice. Justice was done
17:24
Speaker 6: in this case. And the absence again of any claims
17:27
Speaker 6: of wrongdoing, unfair trial, and effective assistance accounts any of
17:31
Speaker 6: those types of legal arguments. This was a valid conviction
17:34
Speaker 6: and it shouldn't be ignored and disregarded by the Department
17:38
Speaker 6: of Justice, apparently the only reason being that they just
17:42
Speaker 6: didn't like the end result.
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Speaker 2: Yeah, well, there was sort of a social media campaign
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Speaker 2: of support for Kirk, and a spokesperson for the LA
17:50
Speaker 2: Sheriff's Professional Association wrote a letter to Trump urging him
17:54
Speaker 2: to intervene before the case went to trial.
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Speaker 6: That's the political reason. That was a political influence that
18:00
Speaker 6: apparently caused the US attorney to seek to override the
18:03
Speaker 6: jury's conviction. And that's not a legitimate basis. I mean,
18:06
Speaker 6: convictions should be based on the facts and the evidence,
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Speaker 6: not on political issues, political influence, political affiliation with one
18:15
Speaker 6: party or another. That's not democracy in the United States.
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Speaker 6: That's not the way democracy works in this country. This
18:23
Speaker 6: type of outcome is going to serve to undermine the
18:26
Speaker 6: public's confidence in the rule of law in the criminal
18:29
Speaker 6: justice system, and they're going to say, well, how come
18:31
Speaker 6: this guy got such favorable treatment and result? What about
18:34
Speaker 6: the other guy? You know, what about somebody who wasn't
18:36
Speaker 6: a political favorite, what about someone who wasn't a law
18:39
Speaker 6: enforcement officer, what about someone who's an ordinary citizen. Would
18:43
Speaker 6: the ordinary citizen received this type of outcome? A guilty
18:46
Speaker 6: verdict being overturned for political reasons highly unlikely?
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Speaker 2: And why should I waste days weeks or even months
18:54
Speaker 2: sometimes serving on a jury, when you're going to throw
18:57
Speaker 2: out my verdict exactly.
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Speaker 6: It has so many negative, corrupting implications. I'm really hopeful
19:06
Speaker 6: that the judge rejects this motion to withdraw the guilty
19:10
Speaker 6: verdict and permit Kirk to plead guilty to a misdemeanor.
19:14
Speaker 6: I mean, it's convicted of a felony, and now they
19:16
Speaker 6: want him to plead to a misdemeanor, and then they're
19:19
Speaker 6: going to give him probation. It's just shocking, a shocking
19:22
Speaker 6: action by the Department of Justice.
19:24
Speaker 2: The final decision is up to the trial judge, and
19:27
Speaker 2: he's questioning whether he even has the authority to grant
19:31
Speaker 2: the government's motion to strike part of the jury's verdict.
19:35
Speaker 2: He's asking both sides to file briefs on it.
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Speaker 6: It's such an extraordinary action. I really strain to come
19:41
Speaker 6: up with the legal authority. What's the legal authority for
19:45
Speaker 6: the judge, the trial judge, to vacate a valid jury conviction,
19:50
Speaker 6: And I'm not aware of any I'm not aware of
19:52
Speaker 6: any statute. I'm not aware of any case precedent that
19:55
Speaker 6: would afford the trial judge to that authority. So that's
19:59
Speaker 6: clearly an issue. The problem here is who's going to appeal.
20:02
Speaker 6: I mean, if the judge does this and vacates the
20:05
Speaker 6: jury conviction, who's going to appeal it? Because the parties
20:08
Speaker 6: are in agreement. The defense certainly would like this outcome,
20:11
Speaker 6: and the prosecutor's office US Attorney's Office is proposing this result,
20:15
Speaker 6: and so there would be no way to review judicially
20:19
Speaker 6: review the trial court's decision, and so I think it
20:22
Speaker 6: would be final.
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Speaker 2: Also, if he's allowed to pleed down to a misdemeanor,
20:26
Speaker 2: that means he could continue to work as a law
20:28
Speaker 2: enforcement officer and he could retain his right to own
20:31
Speaker 2: a firearm.
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Speaker 6: Yeah, I think that's part of it. I think that's
20:34
Speaker 6: part of the justification and at least from the US
20:36
Speaker 6: attorneys of it. Oh, we don't want him to have
20:38
Speaker 6: the stigma of a felon and all of the implications
20:42
Speaker 6: that are associated with being a convicted felon, you know,
20:44
Speaker 6: which again would prohibit him from possessing a firearm. So
20:48
Speaker 6: that's a federal crime for a fella to possessed a firearm,
20:51
Speaker 6: and so he couldn't work in any capacity that would
20:54
Speaker 6: require him to carry a firearm. But you know, that's
20:57
Speaker 6: what happens to defendants every day. You know, defendives are
21:01
Speaker 6: convicted of felonies and that's one of the implications they're
21:04
Speaker 6: prohibited from possessing a firearm. So what's so unique about
21:07
Speaker 6: this guy? Why does he get a pass? Why should
21:10
Speaker 6: he be permitted to avoid that consequence of a felony conviction.
21:14
Speaker 6: I can think of none other than political.
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Speaker 2: It's reminiscent of all the federal prosecutors who resigned when
21:21
Speaker 2: the Manhattan US Attorney's office was told to drop the
21:26
Speaker 2: charges against New York City Mayor Eric Adams so that
21:30
Speaker 2: he could help the Trump administration in its immigration arrests.
21:35
Speaker 6: Right. I think it's another instance where the line prosecutors
21:39
Speaker 6: that are doing the heavy lifting in these cases are
21:42
Speaker 6: just outraged by the political influence that the Trump administration
21:46
Speaker 6: is having on the performance of their duties and obligations.
21:49
Speaker 6: You know, they know, and I know, having served as
21:52
Speaker 6: a former federal prosecutor, that these convictions should be based
21:56
Speaker 6: solely on the facts and the evidence, limited by the law,
21:59
Speaker 6: and they shouldn't be influenced by political actors, by political parties,
22:03
Speaker 6: by political administrations. That's not justice, that's not how democracy
22:07
Speaker 6: supposed to work and operate. In the United States of America.
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Speaker 2: US attorneys are political appointments. But do you think that
22:13
Speaker 2: Trump's picks are even more charged politically? I mean, he
22:17
Speaker 2: just withdrew the controversial nomination of Ed Martin to be
22:22
Speaker 2: the DC US Attorney.
22:24
Speaker 6: Well, I think the problem is is that we know
22:26
Speaker 6: that this particular president values loyalty, perhaps above all things, loyalty,
22:33
Speaker 6: and so whatever he wants done, he expects the persons
22:37
Speaker 6: that he has placed in those positions to do what
22:39
Speaker 6: he wants them to do with no questions asking. When
22:42
Speaker 6: I was a prosecutor, I never ever was looking over
22:46
Speaker 6: my shoulder thinking, oh, I better not decide this matter
22:50
Speaker 6: this way, or take this particular action because of political
22:53
Speaker 6: concerns or political retaliation, or I'm going to be demoted
22:58
Speaker 6: if I do this or I do that. That never
23:01
Speaker 6: entered my mind. You know, the political implications, whether this
23:04
Speaker 6: would favor a political party or disfavor a political party,
23:08
Speaker 6: was never a consideration ever, and now it appears to
23:10
Speaker 6: be a consideration. Always there's this kind of black cloud
23:14
Speaker 6: I think over federal prosecutors as to always there going
23:17
Speaker 6: to be retaliation, and that's very chilling. That's very chilling.
23:21
Speaker 6: It's very disturbing, and it's not what one would expect
23:25
Speaker 6: to happen in a free, open democracy. That's what you'd
23:28
Speaker 6: expect and what we often see in countries that are
23:31
Speaker 6: run by authoritarian governments and authoritarian presidents.
23:34
Speaker 2: Can you think of any case even similar to what
23:37
Speaker 2: the US attorney is doing here or trying to do here.
23:39
Speaker 6: I can't stress enough just how shocking, how unprecedented it is.
23:44
Speaker 6: I mean, I've been at this. I was a prosecutor
23:47
Speaker 6: for nine years before I joined the law faculty here.
23:49
Speaker 6: I've been here for decades now. I cannot recall a
23:53
Speaker 6: federal case where this has happened where the prosecutors said,
23:56
Speaker 6: oh oops, you know, yeah, we initiated this prosecution, We
24:00
Speaker 6: initiated the criminal charges, we advocated to the jury for conviction,
24:04
Speaker 6: and now we want that jury conviction to be vacated,
24:07
Speaker 6: not for anything that was done wrong at the trial
24:10
Speaker 6: or because of insufficient evidence or newly discovered evidence approved
24:15
Speaker 6: his innocence now, just because now the new sheriff in
24:18
Speaker 6: town doesn't like the result.
24:19
Speaker 2: And there is also the possibility of a presidential part
24:23
Speaker 2: in Thanks so much, Jimmy that's Professor Jimmy Garula of
24:26
Speaker 2: Notre Dame Law School.
24:28
Speaker 7: You know we have a public health crisis in this country.
24:31
Speaker 2: Eight But the day before talking about our nation's public
24:35
Speaker 2: health crisis, Health Secretary Robert F. Kennedy Junior had announced
24:39
Speaker 2: a massive restructuring of the Department of Health and Human Services.
24:44
Speaker 2: It included cutting more than twenty thousand employees, nearly a
24:48
Speaker 2: quarter of its workforce, reducing regional offices from ten down
24:52
Speaker 2: to five, and collapsing twenty eight divisions into fifteen. The
24:57
Speaker 2: cuts were made as part of a directive the Trump
25:00
Speaker 2: administration has dubbed make America Healthy Again. But Democratic attorneys
25:06
Speaker 2: general from nineteen states and DC say the sweeping restructuring
25:10
Speaker 2: is doing just the opposite, destroying life saving programs and
25:15
Speaker 2: leaving states to pick up the bill for mounting health costs.
25:19
Speaker 2: New York Attorney General Letitia James is leading their federal
25:22
Speaker 2: lawsuit filed on Monday, asking a court to stop the
25:26
Speaker 2: dismantling and mass firings and to restore the programs that
25:31
Speaker 2: have been cut.
25:32
Speaker 7: These actions are dangerous, cruel, and illegal. They defy Congress's authority,
25:39
Speaker 7: and they violate federal law, and that is why today
25:42
Speaker 7: I'm leading a lawsuit joined by Democratic attorneys general across
25:46
Speaker 7: the country to stop this administration from tearing down a
25:50
Speaker 7: public health infrastructure.
25:52
Speaker 2: Joining me is healthcare attorney Harry Nelson, a partner at
25:55
Speaker 2: Leech Tishman Nelson Hardiman Harry. In general, how has RFKE
26:00
Speaker 2: Junior changed the Department?
26:02
Speaker 5: There's been a pretty significant amount of changes. I think
26:05
Speaker 5: the biggest change has been employee layoffs affecting nearly every
26:10
Speaker 5: major sub agency within the Department of Health and Human Services,
26:13
Speaker 5: including the Center for Disease Control, the FDA, the National
26:17
Speaker 5: Institute of Health, and others. There's just a lot fewer
26:20
Speaker 5: personnel in place. As you mentioned, there's been a consolidation
26:23
Speaker 5: of twenty eight total sub agencies within Health and Human
26:27
Speaker 5: Services down to fifteen, with various mergers and eliminations, a
26:31
Speaker 5: number of closures of public health programs. The FDA passed
26:35
Speaker 5: on a bird flu vaccine application due to some of
26:39
Speaker 5: the lab shutdowns. The Center for Disease Control halted measles
26:43
Speaker 5: testing despite a nationwide outbreak that we've been seeing. NIH
26:48
Speaker 5: has been suspending research trials. Those have been the major disruptions.
26:51
Speaker 5: There's been a few smaller ones. There was a specific
26:54
Speaker 5: post nine to eleven program for first responders that has
26:59
Speaker 5: been interrupt did because of staff shutdowns, and of course DOGE,
27:04
Speaker 5: the Department of Government Efficiency is like continuing streamlining organizationally
27:10
Speaker 5: getting rid of people, and every day is bringing new
27:13
Speaker 5: changes and tell us about the allegations.
27:16
Speaker 2: In the lawsuit.
27:17
Speaker 5: Sure, so they filed suit in Rhode Island, and they've
27:22
Speaker 5: essentially alleged that all of the actions we just described
27:25
Speaker 5: are illegal and they undermined the Department of Health and
27:28
Speaker 5: Human Services ability to fulfill its statutory obligations. So specifically,
27:33
Speaker 5: they alleged a violation of the Administrative Procedure Act, which
27:38
Speaker 5: are the rules by which government program changes happen, so
27:42
Speaker 5: that there's notice and an opportunity to be heard with
27:45
Speaker 5: what rules are made and where there's any changes. There's
27:49
Speaker 5: an allegation in the case of a violation of the
27:51
Speaker 5: separation of Powers, that the executive branch has essentially stepped
27:56
Speaker 5: in and dismantled programs that were authorized specifically by Congress,
28:00
Speaker 5: invading Congress's authority. And there's an allegation that many of
28:05
Speaker 5: the specific laws related to public health are being violated,
28:09
Speaker 5: you know, like the first responders example, where there's people
28:13
Speaker 5: out there, stakeholders who are beneficiaries of these programs whose
28:16
Speaker 5: rights are being violated. So those are the primary legal
28:20
Speaker 5: theories in this case.
28:21
Speaker 2: Do they take aim at Kennedy's larger public health agenda
28:25
Speaker 2: and you know, his opposition to vaccines and floor right
28:30
Speaker 2: in the water, that.
28:32
Speaker 5: Is really not part of this case. I mean, this
28:34
Speaker 5: case is much more about the downsizing, the radical downsizing
28:39
Speaker 5: of this agency and the way that it's preceded, and
28:43
Speaker 5: not about rfk's specific idiosyncratic views. And frankly, it's not
28:49
Speaker 5: clear to what extent his views are driving this because
28:53
Speaker 5: the behavior in many ways parallels what we see that
28:56
Speaker 5: same agency DOGE doing in other parts of the federal government.
29:00
Speaker 5: So in many ways looked like a broader ideological disruption
29:05
Speaker 5: and downsizing of a federal agency rather than like rfk's
29:09
Speaker 5: disbelief in particular kinds of health programs.
29:12
Speaker 2: So it's following the pattern of other lawsuits that claim
29:16
Speaker 2: the executive branch can't incapacitate an agency like AGHS without
29:22
Speaker 2: Congress signing off, and that the administration is violating the
29:26
Speaker 2: appropriations clause because Congress already authorized funds for the agency's operations.
29:34
Speaker 5: Yeah, it really is the greatest test of constitutional powers
29:37
Speaker 5: and what the executive can do to essentially shut down
29:41
Speaker 5: all these programs that Congress authorized and established. It's a
29:45
Speaker 5: fascinating moment in terms of constitutional principles and how far
29:49
Speaker 5: executive power can go.
29:51
Speaker 2: Last week, the Trump administration released a proposed budget which
29:56
Speaker 2: has a twenty six percent cut to the HJS discretionary budget,
30:01
Speaker 2: but ask for five hundred million for Kennedy's Make America
30:05
Speaker 2: Healthy Again initiative. Let's say the proposed budget is approved
30:09
Speaker 2: by Congress, does this suit and lose some of its
30:13
Speaker 2: power because Congress has decided to cut the budget for HHS.
30:18
Speaker 5: I think this case is much more about the process,
30:21
Speaker 5: you know, again, about the administrative process by which things
30:24
Speaker 5: have proceeded, than about the actual funding changes. The funding
30:28
Speaker 5: changes that are proposed are certainly directionally the same as
30:34
Speaker 5: some of these changes, but right now we're in an
30:36
Speaker 5: already funded environment where moneies have already been allocated and
30:40
Speaker 5: we're not talking about it. So the two things do
30:42
Speaker 5: go kind of handing glove. But it's a slightly different
30:45
Speaker 5: issue because the money is authorized, Congress has made choices
30:48
Speaker 5: by virtue of our previous budgets, and so if the
30:52
Speaker 5: twenty twenty six budget you know is enacted, frankly, it
30:55
Speaker 5: will be different cuts on the same trajectory, and they'll
30:59
Speaker 5: have a additional further impacts. But these are two different things.
31:03
Speaker 2: So there's also similar cases that try to block the
31:07
Speaker 2: termination of billions of dollars in grants awarded by federal
31:12
Speaker 2: health agencies in support of public health research. I keep
31:16
Speaker 2: hearing about cuts and funding to research. Is this like
31:20
Speaker 2: overblown or is it really a serious threat to research?
31:25
Speaker 6: Now?
31:26
Speaker 5: This is affecting our medical and public health research institutions
31:30
Speaker 5: across the board nationally. I believe in the twenty twenty
31:33
Speaker 5: six budget, the proposal is eighteen billion dollars less funding
31:39
Speaker 5: for biomedical research being conducted. We're talking a massive scale
31:45
Speaker 5: of reduction. Assuming that it's going to be consistent with
31:49
Speaker 5: what ourfcase indicated, we can expect the cuts to come
31:53
Speaker 5: from new drugs and more specialized health conditions, because our case,
31:59
Speaker 5: you know, been promising that there's going to be a
32:02
Speaker 5: greater focus on chronic conditions, where there is a theory
32:07
Speaker 5: more thing for the buck in terms of the number
32:10
Speaker 5: of people's affected, and a focus on more disease prevention
32:14
Speaker 5: of things like diabetes. So I do think that this
32:18
Speaker 5: is a profound shift for the pharmaceutical industry, for all
32:22
Speaker 5: of the universities and all of the academic researchers at
32:26
Speaker 5: our health systems around the country, like radical changes in
32:31
Speaker 5: labs being shut down, projects being shuttered, and just a massive,
32:35
Speaker 5: massive disruption.
32:36
Speaker 2: Thinking about the USAID, which was the first agency to
32:40
Speaker 2: be dismantled basically by Doge. And in those cases, even
32:45
Speaker 2: though the judges said that you can't dismantle an agency completely,
32:50
Speaker 2: it was already too late by the time the judges'
32:54
Speaker 2: orders came out. I mean, people had been fired already
32:57
Speaker 2: and things had already started to integrate somewhat the same
33:01
Speaker 2: thing happened here. I mean, he's already done the damage.
33:04
Speaker 5: It's a fair question. I mean a lot of the
33:06
Speaker 5: researchers are people who have jobs. For example, many people
33:10
Speaker 5: who are like they might be researching cancer and also
33:12
Speaker 5: treating in a local hospital. So in the case of
33:16
Speaker 5: a lot of our research institutions, you have different categories
33:19
Speaker 5: of researchers in different places who are going to be
33:21
Speaker 5: affected differently. Obviously, people who are literally within the National
33:25
Speaker 5: Institute of health, you know, if their positions are going
33:28
Speaker 5: to have to look for new jobs. But what I'm
33:30
Speaker 5: hearing is a lot of uncertainty for doctors who were
33:34
Speaker 5: including research activities, you know, in their priorities. I think
33:38
Speaker 5: the cut represents something like one third of the total
33:42
Speaker 5: budget of the National Institute of Health, and again it's
33:44
Speaker 5: going to be interesting to see where it hits. Single
33:47
Speaker 5: biggest category, of course the United States is cancer research.
33:50
Speaker 5: We have enormous research dollars going into mental health, infectious disease,
33:55
Speaker 5: and it's not clear that any of those areas are
33:56
Speaker 5: going to be priorities. You know, we have billions of
33:59
Speaker 5: dollars going into HIV AIDS research, various rare diseases, aging,
34:04
Speaker 5: It's not clear where any of it's going to go,
34:06
Speaker 5: and it can't be good for the advancement of public health.
34:10
Speaker 5: And in many ways it does look like the dismantling
34:12
Speaker 5: of something that has been sort of a real jewel
34:15
Speaker 5: in the American public health system.
34:17
Speaker 2: Obviously, they haven't filed a response yet. I mean, what
34:20
Speaker 2: might their possible defense be.
34:22
Speaker 5: I mean, it's really a question of how far executive
34:24
Speaker 5: authority goes. The Department of Health and Human Services is
34:28
Speaker 5: part of the executive branch. So in theory, the administration
34:33
Speaker 5: has the power. Even though Congress authorizes the funding and
34:37
Speaker 5: allocates it, the administration gets to decide how the agency
34:42
Speaker 5: is working. And I think what we're going to hear
34:43
Speaker 5: from this administration is that this agency was floated, that
34:47
Speaker 5: it was too big, too inefficient, that there was no accountability,
34:51
Speaker 5: and that they are essentially taking a painful step that
34:56
Speaker 5: reduces red tape and kind of forces federal health policy
35:00
Speaker 5: to be improved by forcing more action into the states
35:04
Speaker 5: and in the communities rather than with the centralized federal mandate.
35:08
Speaker 5: So those are the argument they're going to make. They're
35:10
Speaker 5: going to argue about weight and about budget deficits. But
35:13
Speaker 5: it'll be interesting to see how the court treat this one,
35:16
Speaker 5: and it would not surprise me if this ends up
35:18
Speaker 5: in the Supreme Court.
35:19
Speaker 2: RFK Junior was a very controversial pick for HHS Secretary,
35:24
Speaker 2: and during his confirmation hearings, you know, because he's a
35:28
Speaker 2: vaccine skeptic. To put it mildly, he made promises about
35:31
Speaker 2: not disturbing vaccines, but has he already started to undermine
35:36
Speaker 2: vaccines in different ways.
35:39
Speaker 5: Absolutely, there's definitely been I would say, a quiet rollback
35:43
Speaker 5: on numerous vaccines. And we're already seeing essentially a vaccine
35:49
Speaker 5: opportunities foregone, like with the bird flu, based on lack
35:52
Speaker 5: of personnel. And I do think it's happening sort of
35:55
Speaker 5: in a lot of quiet steps rather than in one
35:57
Speaker 5: self swoop. I expect that will continue based on not
36:00
Speaker 5: only URK, but the people around him, for whom this
36:03
Speaker 5: is really you know, a kind of passionate point. R
36:06
Speaker 5: K has a normous power as the head of the agency,
36:10
Speaker 5: and what we're seeing is a number of key public
36:12
Speaker 5: health positions are going to people who are really passionate
36:16
Speaker 5: ideologue for all of the positions that he's about. And
36:19
Speaker 5: so we're seeing a number of anti vax people in
36:22
Speaker 5: leadership roles, and obviously that doesn't bode well for getting
36:26
Speaker 5: us ready for the vaccines we're going to need in
36:29
Speaker 5: the coming years.
36:30
Speaker 2: And the age's lawsuit paints a frightening picture.
36:33
Speaker 5: It's radical, and it feels like the deliberate sabotage of
36:37
Speaker 5: our public health infrastructure and an illegal power graph without
36:40
Speaker 5: any plan of how this impacts anybody. You know, our
36:44
Speaker 5: health research has been without question the strongest in the
36:48
Speaker 5: world and it's hard to believe that if we have
36:51
Speaker 5: four years of continued cutting that it will bear any
36:54
Speaker 5: semblance of what it was.
36:55
Speaker 2: Well see if the judge issues an injunction. Thanks so much, Harry.
36:58
Speaker 2: That's healthcare Attorney Nelson, and that's it for this edition
37:02
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