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Transgender Military Ban & LA Prosecutors Resign · Bloomberg Law

• 0:02
  Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
• 0:08
  Speaker 2: Transgender people have been serving openly in the military for
• 0:12
  Speaker 2: nearly a decade, but this week the Supreme Court said
• 0:15
  Speaker 2: that President Trump could begin executing his ban on transgender
• 0:20
  Speaker 2: military service. The conservatives on the court, over the descents
• 0:24
  Speaker 2: of the three liberal justices, have paused a federal judges
• 0:28
  Speaker 2: order blocking the ban, allowing the Trump administration to start
• 0:32
  Speaker 2: discharging thousands of transgender service members, including experienced, decorated officers
• 0:39
  Speaker 2: who've served openly for years. Defense Secretary Pete Hegseth said
• 0:44
  Speaker 2: the military is leaving wokeness and weakness behind.
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  Speaker 3: No more pronouns, no more climate change obsession, no more
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  Speaker 3: emergency vaccine mandates, no more dudes in dresses. We're done
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  Speaker 3: with that.
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  Speaker 2: The lead plaintiff in the case is Emily Shilling, a
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  Speaker 2: Navy commander in combat pilot with nearly twenty years of
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  Speaker 2: service who's flown more than sixty combat missions in both
• 1:13
  Speaker 2: the Afghanistan and Iraq wars. My guest is constitutional law
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  Speaker 2: expert David super, a professor at Georgetown Law. This is
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  Speaker 2: a one paragraph order, so we have no idea what
• 1:25
  Speaker 2: their reasoning was. We just know that the three liberal
• 1:29
  Speaker 2: justices dissented. What's your take on this decision.
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  Speaker 4: I think it's disappointing because the plaintiffs made a compelling case.
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  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 consent 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 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
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  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
• 2:32
  Speaker 4: implicates equal protection of the law, and that the federal
• 2:36
  Speaker 4: government may not deny people equal protection, particularly if it
• 2:40
  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
• 2:50
  Speaker 4: because of sex and because of their transgender status, and
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  Speaker 4: that the government has nowhere near enough adequate justification for doing.
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  Speaker 2: This is a one paragraph order, so we have no
• 3:03
  Speaker 2: idea what their reasoning was. We just know that the
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  Speaker 2: three liberal justices dissented. But in a case like this,
• 3:09
  Speaker 2: shouldn't they have allowed the status quo to remain in place.
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  Speaker 2: Now the Trump administration is going to be able to
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  Speaker 2: 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
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  Speaker 4: Court in Washington is quite long, quite detailed, quite careful.
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  Speaker 4: You can agree with it or not. That it is
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  Speaker 4: certainly not a casual opinion, and one would expect that
• 3:52
  Speaker 4: it would stand and preserve the status quo unless there
• 3:57
  Speaker 4: was a compelling reason otherwise. It's disappointing that the Supreme
• 4:01
  Speaker 4: Court was unable or unwilling to state any compelling reason
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  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
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  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, even though the lower
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  Speaker 2: courts didn't find any backup for the Trump administration's claims
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  Speaker 2: that the presence of transgender people in the armed services
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  Speaker 2: undermines military effectiveness. Do you think that deference is the
• 4:34
  Speaker 2: main reason why the Supreme Court decided to lift the injunction?
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  Speaker 4: Only suspect it is. The President has been asking for
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  Speaker 4: deference on many military and foreign affairs matters. The Court
• 4:49
  Speaker 4: denied him that deference on his efforts to use the
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  Speaker 4: Alien Enemies Act. And my guess is the the Court
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  Speaker 4: 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: In principle, the administration could be ordered to restore their
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  Speaker 4: prior status if it ultimately loses this litigation. But the
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  Speaker 4: whole point of irreparable injury is that litigants are forced
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  Speaker 4: to suffer circumstances that can't be fully corrected, and in
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  Speaker 4: the best case scenario, having one's military service interrupted, having
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  Speaker 4: to gamble ones the a benefits away. All of that
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  Speaker 4: is classic irrepriabend.
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  Speaker 2: In Chump'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 serving. I mean,
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  Speaker 2: the lead plaintiff is a decorated Navy pilot with over
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  Speaker 2: sixty combat missions.
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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
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  Speaker 4: support this. If the government had an important reason for
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  Speaker 4: an action, then deference would owe, and the lower court
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  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
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  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
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  Speaker 4: could certainly be thrown out on an individual basis. But
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  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 soldiers 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
• 7:44
  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 errants tell me.
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  Speaker 2: What happens now. So this was about the order from
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  Speaker 2: the judge in Washington State. A judge in Washington, DC
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  Speaker 2: has also blocked the policy nationwide, and the Court of
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  Speaker 2: Appeals for the DC Circuit put that on hold temporarily
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  Speaker 2: while it heard oral arguments. I mean, how does that
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  Speaker 2: case work out when you have the Supreme Court lifting
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  Speaker 2: the injunction of the Washington 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. They're going to be oral arguments
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  Speaker 4: in the Ninth Circuit and the DC Circuit. Panels in
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  Speaker 4: each of those courts will write opinions about this, and
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  Speaker 4: it will almost certainly come back to the Supreme Court
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  Speaker 4: on the merits. So it's really wide open. There are
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  Speaker 4: many grounds for denying a stay or granting a stay,
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  Speaker 4: and precisely because the Court didn't write an opinion, we
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  Speaker 4: don't know which of those it is. It could be
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  Speaker 4: something as technical as concerns about the standing of plainiffs
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  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
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  Speaker 4: the merits. They have lifted injunctions in other cases saying
• 9:39
  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
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  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
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  Speaker 4: the merit to find for the plaintiffs, even if they
• 10:00
  Speaker 4: didn't think an injunction pending litigation was appropriate.
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  Speaker 2: As you know, the Supreme Court heard a major transgender
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  Speaker 2: rights case in December over Tennessee's ban on gender affirming
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  Speaker 2: medical care for transgender miners. It did seem like the
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  Speaker 2: justices we're going to uphold that ban. I mean, together
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  Speaker 2: with this, does it show hostility towards transgender rights?
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  Speaker 4: These are different cases. The Supreme Court in Bosstok a
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  Speaker 4: few years ago held that the prohibition on discrimination on
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  Speaker 4: the base of sexts in Title seven of the Civil
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  Speaker 4: Rights Act is applicable to gay, lesbian, and transgender people.
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  Speaker 4: So it has done much of the analytical heavy lifting
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  Speaker 4: required to understand the rights of trans people. The Tennessee case,
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  Speaker 4: we obviously don't know how it'll be resolved, but that's
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  Speaker 4: a much narrower set of restrictions and justified in ways
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  Speaker 4: that are particular to those I hope the Court strikes
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  Speaker 4: down the Tennessee law, but if it doesn't, I don't
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  Speaker 4: think that tells you a great deal about how any
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  Speaker 4: non medical cases would be decided.
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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 on Sunday, don't
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  Speaker 2: you need to uphold the Constitution of the United States's press.
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  Speaker 2: I don't know.
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  Speaker 4: I have to respond by saying again, I have brilliant
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  Speaker 4: lawyers that work for me, and they are going to
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  Speaker 4: obviously 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: articles which I'm sure he feels the need to uphold.
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  Speaker 4: Then those pesky Article one and Article three and Bill
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  Speaker 4: of Rights. Perhaps he's less enthusiastic about those. I think
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  Speaker 4: that the people that need to hear his remarks on
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  Speaker 4: Sunday are the Supreme Court, and the Supreme Court has,
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  Speaker 4: in a variety of ways all spring been kicking the
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  Speaker 4: can down the road and hoping the administration will come
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  Speaker 4: around to acting lawfully. Arguably, the action we were discussing
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  Speaker 4: concerning the transgender ban in the military is another example
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  Speaker 4: of the court kicking things down the road. But a
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  Speaker 4: president who has harshly criticized judges, called some judges that
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  Speaker 4: he appointed communists, and has expressed great indifference about whether
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  Speaker 4: to comply with Supreme Court decrees, and it's not complied
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  Speaker 4: with several Supreme Court at lower court decrees is not
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  Speaker 4: going to voluntarily change his too, and the Supreme Court
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  Speaker 4: is going to have to decide whether they are going
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  Speaker 4: to insist upon compliance with the law.
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  Speaker 2: They'll certainly have opportunities to do that considering all the
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  Speaker 2: emergency petitions from the Trump administration. Thanks so much, David.
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  Speaker 2: That's Professor David super of Georgetown Law. Coming up next.
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  Speaker 2: Los Angeles federal prosecutors resign after the US Attorney gives
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  Speaker 2: a plea deal to a convicted felon. This is Bloomberg to.
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  Speaker 4: The defendant, Please rise and face the jury. What is
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  Speaker 4: your verdict? We find it?
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  Speaker 5: Defendent guilty is charged.
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  Speaker 2: The next step after a jury finds a defendant guilty
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  Speaker 2: is sentencing by the judge. But in a completely unorthodox move,
• 13:54
  Speaker 2: the new US Attorney in Los Angeles is stepping in
• 13:58
  Speaker 2: trying to stop the set of a convicted felon and
• 14:02
  Speaker 2: moving to strike the jury's verdict. After a three day trial,
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  Speaker 2: a jury convicted former La County Sheriff's deputy Trevor Kirk
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  Speaker 2: of a felony for using excessive force when he assaulted
• 14:15
  Speaker 2: a black woman outside a supermarket two years ago, throwing
• 14:19
  Speaker 2: her to the ground, holding her down, and pepper spraying
• 14:22
  Speaker 2: her while responding to a reported robbery. He's facing a
• 14:26
  Speaker 2: ten year prison sentence for that conviction, but now, in
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  Speaker 2: an extraordinary move, US Attorney Bill Esseli is giving Kirk
• 14:36
  Speaker 2: a plea deal and asking the trial judge to throw
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  Speaker 2: out the jury's verdict. Joining me is former federal prosecutor
• 14:43
  Speaker 2: Jimmy Garoule, a professor at Notre Dame Law School. So, Jimmy,
• 14:47
  Speaker 2: this former sheriff's deputy, is supposed to be sentenced this month,
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  Speaker 2: facing ten years for the felony conviction, and then suddenly
• 14:55
  Speaker 2: the new US attorney comes in and gives him a
• 14:58
  Speaker 2: deal to please guilty to a misdemeanor, with the government
• 15:02
  Speaker 2: recommending a year's probation and asking the judge to strike
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  Speaker 2: the jury's finding that he injured his victim, which made
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  Speaker 2: it a felony.
• 15:10
  Speaker 1: Well, it's an extraordinary action and it doesn't appear to
• 15:14
  Speaker 1: be justified based on the facts or the law. And
• 15:16
  Speaker 1: when I say that, what I mean is that if
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  Speaker 1: the claim was that he had not received a fair trial,
• 15:23
  Speaker 1: well that's the purpose of a direct appeal. The defendant
• 15:26
  Speaker 1: would appeal the conviction and highlight the heirs or alleged
• 15:29
  Speaker 1: airs that were conducted during the jury trial. But there
• 15:32
  Speaker 1: doesn't appear to be any allegation by the state or
• 15:35
  Speaker 1: the defendant that his trial was not fair, did not
• 15:38
  Speaker 1: comport with due process of law. Alternatively, if the claim is, oh,
• 15:42
  Speaker 1: we have newly discovered evidence that proves his innocence, well
• 15:45
  Speaker 1: there's a whole set of post conviction procedures that deal
• 15:48
  Speaker 1: with that process to petition the court through a petition
• 15:51
  Speaker 1: for post conviction relief to vacate the conviction. And there's
• 15:53
  Speaker 1: no claims or allegations made to that effect that, oh,
• 15:57
  Speaker 1: you know, he's actually innocent and we just learned after
• 15:59
  Speaker 1: the conviction of this new evidence that proves his innocence.
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  Speaker 1: And so then the question is, well, what is a justification.
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  Speaker 1: What's changed? What's a justification for this extraordinary action basically
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  Speaker 1: to override the verdict of the jury. And it appears
• 16:13
  Speaker 1: that it's simply that there's been a change of administration.
• 16:17
  Speaker 1: There's a new US attorney, and he was prosecuted under
• 16:21
  Speaker 1: the previous Biden administration. At least the initial indictment was
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  Speaker 1: brought at that time, and the charges were filed and
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  Speaker 1: the new sheriff in town wants to undo what the
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  Speaker 1: jury did, which suggests me that the motivation or justification
• 16:35
  Speaker 1: is purely political.
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  Speaker 2: The judge in the case denied emotion from the defense
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  Speaker 2: for a quitt last month and said that Kirk acted
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  Speaker 2: aggressively towards the woman from the outset, and then the
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  Speaker 2: footage of the incident was sufficient evidence for a jury
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  Speaker 2: to find that he'd had used objectively unreasonable force.
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  Speaker 1: Yeah, so as a matter of fact, you know that
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  Speaker 1: the court is finding that there was sufficient evidence presented
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  Speaker 1: a trial to justify the case, and as a result,
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  Speaker 1: the defendant received the full panoply of due process protections.
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  Speaker 1: I mean, he was represented by counsel. Prosecution had to
• 17:08
  Speaker 1: prove his guilt beyond a reasonable doubt, the jury had
• 17:11
  Speaker 1: to find him guilty unanimously. And so there again does
• 17:15
  Speaker 1: not appear to be any factual basis justification or legal
• 17:19
  Speaker 1: justification for overturning the conviction. And what it suggests to
• 17:23
  Speaker 1: me is that this is another example of the Trump
• 17:26
  Speaker 1: administration kind of ignoring or evading the rule of law
• 17:31
  Speaker 1: in the case of undocumented immigrants. In the claim is well,
• 17:35
  Speaker 1: they're not entitled to do process. In this particular case,
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  Speaker 1: with respect to Deputy Trevor Kirk, he received full due process,
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  Speaker 1: but the administration, the Trump administration, didn't like the result.
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  Speaker 1: And because they didn't like the result, then they're seeking
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  Speaker 1: to somehow vacate the jury conviction, which I think undermines
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  Speaker 1: the rule of law and undermines the public's confidence in
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  Speaker 1: the criminal justice system and the validity of convictions.
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  Speaker 2: Besides that, for federal prosecutors who handle the case, including
• 18:06
  Speaker 2: the chief of the Public Corruption and Civil Rights Section,
• 18:10
  Speaker 2: refuse to sign the plea agreement and withdrew from the case.
• 18:13
  Speaker 2: And then three of them resigned.
• 18:15
  Speaker 1: Yeah, they stepped down, I mean, which is an expression
• 18:18
  Speaker 1: of their disagreement with this result and their perception understanding
• 18:23
  Speaker 1: that this was just an unfair, unjustified action by their
• 18:27
  Speaker 1: supervisor and again is not justified by any legal principle
• 18:31
  Speaker 1: and any legal president, any legal authority. And you know,
• 18:35
  Speaker 1: there's kind of a parallel here, I mean with respective
• 18:38
  Speaker 1: plea bargains. For example, if a defendant enters into a
• 18:41
  Speaker 1: plea bargain, he may withdraw the plea bargain after the fact,
• 18:46
  Speaker 1: but only based upon a finding of by the court
• 18:49
  Speaker 1: that withdrawing the Guilly plea would be in the interests
• 18:51
  Speaker 1: of justice. And so what's the standard here if the
• 18:55
  Speaker 1: judges ultimately to decide whether or not a valid jury
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  Speaker 1: verdict should be overridden for political considerations. I mean, that
• 19:03
  Speaker 1: doesn't strike as advancing the interests of justice. In fact,
• 19:07
  Speaker 1: it's just the opposite. It's ignoring justice. Justice was done
• 19:11
  Speaker 1: in this case. And the absence again of any claims
• 19:14
  Speaker 1: of wrongdoing, unfair trial, and effective assistance accounts any of
• 19:18
  Speaker 1: those types of legal arguments. This was a valid conviction
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  Speaker 1: and it shouldn't be ignored and disregarded by the Department
• 19:26
  Speaker 1: of Justice, apparently the only reason being that they just
• 19:29
  Speaker 1: didn't like the end result.
• 19:31
  Speaker 2: Yeah. Well, there was sort of a social media campaign
• 19:34
  Speaker 2: of support for Kirk, and a spokesperson for the LA
• 19:38
  Speaker 2: Sheriff's Professional Association wrote a letter to Trump urging him
• 19:43
  Speaker 2: to intervene before the case went to trial.
• 19:46
  Speaker 1: That's the political reason. That was a political influence that
• 19:49
  Speaker 1: apparently caused the US attorneys to seek to override the
• 19:52
  Speaker 1: jury's conviction. And that's not a legitimate basis. I mean,
• 19:55
  Speaker 1: conviction should be based on the facts and the evidence,
• 19:59
  Speaker 1: not on issues political influence political affiliation with one party
• 20:04
  Speaker 1: or another. That's not democracy in the United States. That's
• 20:08
  Speaker 1: not the way democracy works in this country. This type
• 20:12
  Speaker 1: of outcome is going to serve to undermine the public's
• 20:16
  Speaker 1: confidence in the rule of law and the criminal justice system.
• 20:19
  Speaker 1: And they're going to say, well, how come this guy
• 20:21
  Speaker 1: got such favorable treatment and resolved? What about the other guy?
• 20:25
  Speaker 1: You know, what about somebody who wasn't a political favorite,
• 20:28
  Speaker 1: What about someone who wasn't a law enforcement officer, what
• 20:31
  Speaker 1: about someone who's an ordinary citizen. Would the ordinary citizen
• 20:35
  Speaker 1: receive this type of outcome a guilty verdict being overturned
• 20:39
  Speaker 1: for political reasons highly unlikely?
• 20:41
  Speaker 2: And why should I serve on a jury if you're
• 20:44
  Speaker 2: going to take my verdict in my time exactly?
• 20:47
  Speaker 1: I mean, it has so many negative, corrupting implications. I'm
• 20:51
  Speaker 1: really hopeful that the judge rejects this motion to withdraw
• 20:58
  Speaker 1: the guilty vertict and permit Kirk to plead gilly to
• 21:02
  Speaker 1: a misdemeanor. I mean, he's convicted of a felony and
• 21:04
  Speaker 1: now they want him to plead to a misdemeanor and
• 21:07
  Speaker 1: then they're going to give him probation. It's just shocking.
• 21:10
  Speaker 1: It's shocking. It's shocking action by the Department of Justice.
• 21:14
  Speaker 2: Is the final decision the judges?
• 21:16
  Speaker 1: Well, it's a good question, because I think it's such
• 21:18
  Speaker 1: an extraordinary action. I really strain to come up with
• 21:22
  Speaker 1: the legal authority. What's the legal authority for the judge,
• 21:27
  Speaker 1: the trial judge or presiding judge to vacate a valid
• 21:32
  Speaker 1: jury conviction, And I'm not aware of any I'm not
• 21:35
  Speaker 1: aware of any statute. I'm not aware of any case
• 21:38
  Speaker 1: precedent that would afford the trial judge to that authority.
• 21:42
  Speaker 1: So that's clearly an issue. The problem here is is
• 21:45
  Speaker 1: that who's going to appeal? I mean, if the judge
• 21:47
  Speaker 1: does this and vacates the jury conviction, who's going to
• 21:51
  Speaker 1: appeal it? Because the parties are in agreement. The defense
• 21:54
  Speaker 1: certainly would like this outcome, and the Prosecutor's office, US
• 21:57
  Speaker 1: Attorney's Office is proposing this result, and so there would
• 22:01
  Speaker 1: be no way to review judicially review the trial court's decision,
• 22:06
  Speaker 1: and so I think it would be final.
• 22:08
  Speaker 2: Also, if he's allowed to plead down to a misdemeanor,
• 22:11
  Speaker 2: that means he could continue to work as a law
• 22:13
  Speaker 2: enforcement officer, and he could retain his right to own
• 22:16
  Speaker 2: a fire run.
• 22:17
  Speaker 1: Yeah, I think that's part of it. I think that's
• 22:19
  Speaker 1: part of the justification, at least from the US journeys
• 22:22
  Speaker 1: of it. Oh, we don't want him to have the
• 22:23
  Speaker 1: stigma of a felon and all of the implications that
• 22:27
  Speaker 1: are associated with that, with being a convicted felon, you know,
• 22:31
  Speaker 1: which again would prohibit him from possessing a firearm. So
• 22:35
  Speaker 1: that's a federal crime for a felon to possess a firearm,
• 22:38
  Speaker 1: and so he couldn't work in any capacity that would
• 22:42
  Speaker 1: require him to carry a firearm. But you know, that's
• 22:45
  Speaker 1: what happens to defendants every day. You know, thousands of
• 22:49
  Speaker 1: defendants are convicted of felonies and that's one of the implications.
• 22:52
  Speaker 1: They're prohibited from possessing a firearm. So what's so unique
• 22:56
  Speaker 1: about this guy? Why does he get a pass? Why
• 22:59
  Speaker 1: should he bemitted to avoid that consequence of a felony conviction?
• 23:04
  Speaker 1: I can think of none other than political.
• 23:06
  Speaker 2: It's reminiscent of all the federal prosecutors who are resigned
• 23:10
  Speaker 2: when the Manhattan US Attorney's Office was told to drop
• 23:16
  Speaker 2: the charges against New York City Mayor Eric Adams so
• 23:19
  Speaker 2: that he could help the Trump administration in its immigration arrests.
• 23:24
  Speaker 1: Right. I think it's another instance where the line prosecutors
• 23:29
  Speaker 1: that are doing the heavy lifting in these cases are
• 23:31
  Speaker 1: just outraged by the political influence that the Trump administration
• 23:36
  Speaker 1: is having on the performance of their duties and obligations.
• 23:39
  Speaker 1: You know, they know, and I know, having served as
• 23:42
  Speaker 1: a former federal prosecutor, that these convictions should be based
• 23:46
  Speaker 1: solely on the facts and the evidence, limited by the law,
• 23:49
  Speaker 1: and they shouldn't be influenced by political actors, by political parties,
• 23:53
  Speaker 1: by political administrations. That's not justice. That's not how democracy
• 23:57
  Speaker 1: supposed to work and operate in the United States of America.
• 24:00
  Speaker 1: But it is, and we're seeing it, and not simply
• 24:02
  Speaker 1: one case, you know, the mayor at Eric Adams case,
• 24:05
  Speaker 1: but you know, this is another incident where that's happened,
• 24:08
  Speaker 1: and who knows if they will be more of these
• 24:11
  Speaker 1: types of cases. And here in addition, you know, we're
• 24:14
  Speaker 1: seeing you know, the Trump administration saying we want the
• 24:17
  Speaker 1: Department of Justice, the Attorney General's a target this particular individual. Well,
• 24:20
  Speaker 1: that's not how it works either. You don't go after
• 24:22
  Speaker 1: individuals by name because of who they are. You go
• 24:26
  Speaker 1: after individuals based upon what they did, what the facts are,
• 24:29
  Speaker 1: what the evidence is, not on their political affiliation or
• 24:33
  Speaker 1: their political opinion or actions that they taken that political
• 24:37
  Speaker 1: party views unfavorably. That's not how justice should work in
• 24:41
  Speaker 1: this country.
• 24:42
  Speaker 2: US attorneys are political appointments. But do you think that
• 24:45
  Speaker 2: Trump's picks are even more charged politically? I mean, he
• 24:49
  Speaker 2: just withdrew the controversial nomination of Ed Martin to be
• 24:54
  Speaker 2: the DC US Attorney.
• 24:56
  Speaker 1: Well, I think the problem is is that we know
• 24:58
  Speaker 1: that this particular presence that values loyalty, perhaps above all things, loyalty,
• 25:05
  Speaker 1: and so whatever he wants done, he expects the persons
• 25:09
  Speaker 1: that he has placed in those positions through political appointment
• 25:13
  Speaker 1: presidential appointment, to do what he wants them to do,
• 25:16
  Speaker 1: with no questions asking. I mean, when I was a prosecutor,
• 25:21
  Speaker 1: I never ever was looking over my shoulder thinking, oh,
• 25:25
  Speaker 1: I better not decide this matter this way, or take
• 25:28
  Speaker 1: this particular action because of political concerns or political retaliation,
• 25:33
  Speaker 1: or I'm going to be demoted if I do this
• 25:36
  Speaker 1: or I do that. That never entered my mind. You know,
• 25:40
  Speaker 1: the political implications, whether this would favor a political party,
• 25:44
  Speaker 1: or disfavorite political party. Harma political party was never a
• 25:47
  Speaker 1: consideration ever, and now it appears to be a consideration always.
• 25:52
  Speaker 1: There's this kind of black cloud I think over federal
• 25:55
  Speaker 1: prosecutors as to, oh, is there going to be retaliation
• 25:59
  Speaker 1: if I do this right, take this particular action. And
• 26:01
  Speaker 1: that's very chilling. That's very chilling. It's very disturbing, and
• 26:06
  Speaker 1: it's not what one would expect to happen in a free,
• 26:09
  Speaker 1: open democracy. That's what you'd expect and what we often
• 26:12
  Speaker 1: see in countries that are run by authoritarian governments and
• 26:16
  Speaker 1: authoritarian presidents.
• 26:17
  Speaker 2: Can you think of any case even similar to what
• 26:20
  Speaker 2: the US attorney is doing here or trying to do here.
• 26:23
  Speaker 1: I can't stress enough just how shocking, how unprecedented it is.
• 26:28
  Speaker 1: I mean, I've been at this. I was a prosecutor
• 26:31
  Speaker 1: for nine years before I joined the law faculty here.
• 26:33
  Speaker 1: I've been here for decades now. I cannot recall a
• 26:37
  Speaker 1: federal case where this has happened where the prosecutors said, oh, oops,
• 26:41
  Speaker 1: you know, yeah, we initiated this prosecution, we initiated the
• 26:45
  Speaker 1: criminal charges, we advocated to the jury for conviction, and
• 26:49
  Speaker 1: now we want that jury conviction to be vacated, not
• 26:52
  Speaker 1: for anything that was done wrong at the trial or
• 26:55
  Speaker 1: because of insufficient evidence or newly discovered evidence of proofs
• 26:59
  Speaker 1: is then a now just because now the new sheriff
• 27:02
  Speaker 1: in town doesn't like that result.
• 27:04
  Speaker 2: Well, it'll be really interesting to see how the judge
• 27:06
  Speaker 2: handles this in the sentencing. Thanks for joining me today, Jimmy.
• 27:10
  Speaker 2: That's professor Jimmy Garoule of Notre Dame Law School. Up next,
• 27:14
  Speaker 2: attorneys general sued the Department of Health and Human Services.
• 27:18
  Speaker 2: This is Bloomberg.
• 27:22
  Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
• 27:28
  Speaker 2: Twenty Democratic attorneys general are suing the US Department of
• 27:32
  Speaker 2: Health and Human Services for firing health workers and cutting
• 27:36
  Speaker 2: programs in a lawsuit filed on Monday. They're pushing for
• 27:40
  Speaker 2: an injunction to prevent the quote unconstitutional and illegal dismantling
• 27:45
  Speaker 2: of the AHHS, which they claim is already wreaking havoc
• 27:50
  Speaker 2: on the health landscape. The lawsuit comes after a massive
• 27:54
  Speaker 2: restructuring of the agency by Health Secretary Robert F. Kennedy.
• 27:58
  Speaker 2: Junior healthcare attorney Harry Nelson, a partner at Leech Tishman
• 28:03
  Speaker 2: Nelson Hardiman Harry in general. How has RFK Junior changed
• 28:08
  Speaker 2: the department.
• 28:10
  Speaker 5: There's been a pretty significant amount of changes. I think
• 28:12
  Speaker 5: the biggest change has been over ten thousand employees layoffs
• 28:16
  Speaker 5: since April, affecting nearly every major sub agency within the
• 28:22
  Speaker 5: Department of Health and Human Services, including the Center for
• 28:25
  Speaker 5: Disease Control, the FDA, the National Institute of Health, and others.
• 28:30
  Speaker 5: So there's just a lot fewer personnel in place. As
• 28:34
  Speaker 5: you mentioned, there's been a consolidation of twenty eight total
• 28:38
  Speaker 5: sub agencies within Health and Human Services down to fifteen,
• 28:41
  Speaker 5: with various mergers and eliminations, a number of closures of
• 28:45
  Speaker 5: programs of public health programs. The FDA passed on a
• 28:50
  Speaker 5: bird flu vaccine application due to some of the lab shutdowns.
• 28:56
  Speaker 5: The Center for Disease Control halted measles testing despite a
• 29:01
  Speaker 5: nationwide outbreak that we've been seeing. NIH has been suspending
• 29:05
  Speaker 5: research trials. Those have been the major disruptions. There's been
• 29:08
  Speaker 5: a few smaller ones. There was a specific Post nine
• 29:11
  Speaker 5: to eleven program for first responders that has been interrupted
• 29:17
  Speaker 5: because of staff shutdowns, and of course DOGE, the Department
• 29:23
  Speaker 5: of Government Efficiency is like continuing to all of the
• 29:27
  Speaker 5: above activities just streamlining organizationally getting rid of people, and
• 29:32
  Speaker 5: you know, every day is bringing new changes.
• 29:35
  Speaker 2: And tell us about the allegations in the lawsuit.
• 29:38
  Speaker 5: Sure, so, twenty States, led by the New York Attorney
• 29:43
  Speaker 5: General Laritia James, filed suit in Rhode Island, and they've
• 29:47
  Speaker 5: essentially alleged that all of the actions we just described
• 29:50
  Speaker 5: are illegal and they undermined the Department of Health and
• 29:53
  Speaker 5: Human Services ability to fulfill its statutory obligations. So specifically,
• 29:59
  Speaker 5: they all a violation of the Administrative Procedure Act, which
• 30:04
  Speaker 5: are the rules by which government program changes happen so
• 30:08
  Speaker 5: that there's notice and an opportunity to be heard with
• 30:11
  Speaker 5: what rules are made, and where there's any changes, there's
• 30:15
  Speaker 5: an allegation in the case of a violation of the
• 30:17
  Speaker 5: separation of powers, that the executive branch has essentially stepped
• 30:22
  Speaker 5: in and dismantled programs that were authorized specifically by Congress,
• 30:27
  Speaker 5: invading Congress's authority. And there's violations that many of the
• 30:32
  Speaker 5: specific laws related to public health are being violated, you know,
• 30:36
  Speaker 5: like the first Responders example, where there's people out there
• 30:40
  Speaker 5: stakeholders who are beneficiaries of these programs whose rights are
• 30:44
  Speaker 5: being violated. So those are the primary legal theories in
• 30:49
  Speaker 5: this case.
• 30:50
  Speaker 2: Do they take aim at Channity's you know, larger public
• 30:54
  Speaker 2: health agenda and you know, his criticisms of COVID and vaccines.
• 31:00
  Speaker 5: All that, that is really not part of this case.
• 31:03
  Speaker 5: I mean, this case is much more about the downsizing,
• 31:06
  Speaker 5: the radical downsizing of this agency and the way that
• 31:11
  Speaker 5: it proceeded, and not about rfk's specific idiosyncret views. And frankly,
• 31:18
  Speaker 5: it's not clear to what extent his views are driving
• 31:21
  Speaker 5: this because the behavior in many ways parallels what we
• 31:25
  Speaker 5: see that same agency DOGE doing in other parts of
• 31:29
  Speaker 5: the federal government. So in many ways it looks like
• 31:31
  Speaker 5: a broader ideological disruption and downsizing of a federal agency
• 31:39
  Speaker 5: rather than like rfkse particular disbelief in particular kinds of
• 31:43
  Speaker 5: health programs.
• 31:44
  Speaker 2: It follows other lawsuits that claim that the cuts violate
• 31:49
  Speaker 2: the constitutions separation of powers and that basically they're taking
• 31:53
  Speaker 2: away congresses sign off on these things and money already
• 31:58
  Speaker 2: appropriated by Congress.
• 32:00
  Speaker 5: Yeah, it really is the greatest test of constitutional powers
• 32:04
  Speaker 5: and what the executive can do to essentially shut down
• 32:07
  Speaker 5: all these programs that Congress authorized and established It's a
• 32:11
  Speaker 5: fascinating moment in terms of constitutional principles and how far
• 32:15
  Speaker 5: executive power can go.
• 32:17
  Speaker 2: Last week, the Trump administration released a proposed budget which
• 32:22
  Speaker 2: has a twenty six percent cut to the HS discretionary budget,
• 32:28
  Speaker 2: but ask for five hundred million for Kennedy's Make America
• 32:32
  Speaker 2: Healthy Again initiative. Let's say the proposed budget is approved
• 32:37
  Speaker 2: by Congress. Does this suit and lose some of its
• 32:41
  Speaker 2: power because Congress has decided to cut the budget for HHS.
• 32:46
  Speaker 5: I think this case is much more about the process,
• 32:49
  Speaker 5: you know again, about the administrative process by which things
• 32:52
  Speaker 5: have proceeded, than about the actual funding changes. The funding
• 32:56
  Speaker 5: changes that are proposed are certainly directionally the same as
• 33:02
  Speaker 5: as some of these changes, but right now we're in
• 33:05
  Speaker 5: an already funded environment where moneies have already been allocated
• 33:09
  Speaker 5: and we're not talking about it. So the two things
• 33:11
  Speaker 5: do go kind of handing gloves. But it's a slightly
• 33:14
  Speaker 5: different issue because the money is authorized. Congress has made
• 33:17
  Speaker 5: choices by VIR two of our previous budgets, and so
• 33:21
  Speaker 5: if the twenty twenty six budget you know is inactive, frankly,
• 33:25
  Speaker 5: it will be different cuts on the same trajectory and
• 33:28
  Speaker 5: they'll have additional further impacts. But these are two different things.
• 33:33
  Speaker 2: So there's also similar cases that try to block the
• 33:37
  Speaker 2: termination of billions of dollars in grants awarded by federal
• 33:42
  Speaker 2: health agencies in support of public health research. I keep
• 33:46
  Speaker 2: hearing about cuts and funding to research. Is this like
• 33:51
  Speaker 2: overblown or is it really a serious threat to research?
• 33:56
  Speaker 1: Now?
• 33:56
  Speaker 5: This is affecting our medical and public health reas search
• 34:00
  Speaker 5: institutions across the board nationally. I believe in the twenty
• 34:04
  Speaker 5: twenty six budget, the proposal is eighteen billion dollars less
• 34:10
  Speaker 5: funding for biomedical research being conducted, but I think that
• 34:14
  Speaker 5: might be biomedical research and global health initiatives. But we're
• 34:17
  Speaker 5: talking a massive scale of reduction, assuming that it's going
• 34:22
  Speaker 5: to be consistent with what our f case indicated, we
• 34:26
  Speaker 5: can expect the cuts to come from new drugs and
• 34:30
  Speaker 5: more specialized health conditions, because our case been promising that
• 34:36
  Speaker 5: there's going to be a greater focus on chronic conditions
• 34:39
  Speaker 5: where there is a theory more thang for the buck
• 34:43
  Speaker 5: in terms of the number of people's affected, and a
• 34:46
  Speaker 5: focus on more disease prevention of things like diabetes. So
• 34:51
  Speaker 5: I do think that this is a profound shift for
• 34:54
  Speaker 5: the pharmaceutical industry, for all of the universities and all
• 34:59
  Speaker 5: of the academic researchers at our health systems around the country,
• 35:04
  Speaker 5: like radical changes in labs being shut down, projects being shuttered,
• 35:09
  Speaker 5: and just a massive, massive disruption.
• 35:12
  Speaker 2: Thinking about the USAID, which was the first agency to
• 35:16
  Speaker 2: be dismantled basically by Doge. And in those cases, even
• 35:21
  Speaker 2: though the judges said that, you know, you can't dismantle
• 35:25
  Speaker 2: an agency completely, but it was already too late by
• 35:28
  Speaker 2: the time the judges orders came out. I mean, people
• 35:32
  Speaker 2: had been fired already and things had already started to disintegrate.
• 35:37
  Speaker 2: Some m the same thing happened here. I mean, he's
• 35:39
  Speaker 2: already done the Damage's.
• 35:41
  Speaker 5: A fair question. I mean a lot of the researchers
• 35:43
  Speaker 5: are people who have jobs. For example, many people who
• 35:47
  Speaker 5: are like they might be researching cancer and also treating
• 35:50
  Speaker 5: in a local hospital. So in the case of a
• 35:53
  Speaker 5: lot of our research institutions, you have different categories of
• 35:56
  Speaker 5: researchers in different places who are going to be affected differently. Obviously,
• 36:00
  Speaker 5: people who are literally within the Nationalists to doue of
• 36:03
  Speaker 5: health are going to have to, you know, if their
• 36:05
  Speaker 5: positions are cutters looking for new jobs. But what I'm
• 36:08
  Speaker 5: hearing is a lot of uncertainty for doctors who you know,
• 36:12
  Speaker 5: who were including research activities, you know, in their priorities.
• 36:16
  Speaker 5: I think the cut represent like something like one third
• 36:20
  Speaker 5: of the total budget of the Nationalists to due to health,
• 36:23
  Speaker 5: and again it's going to be interesting to see where
• 36:26
  Speaker 5: it hits. Single biggest category, of course the United States
• 36:28
  Speaker 5: is cancer research. Enormous research dollars going into mental health,
• 36:33
  Speaker 5: infectious disease, and it's not clear that any of those
• 36:36
  Speaker 5: areas are going to be priorities. You know, we have
• 36:38
  Speaker 5: billions of dollars going into HIV AIDS research, various rare diseases, aging,
• 36:43
  Speaker 5: It's not clear where any of it's going to go,
• 36:46
  Speaker 5: and it can't be good for the advancement of public health.
• 36:50
  Speaker 5: And in many ways it does look like the dismantling
• 36:53
  Speaker 5: of something that has been sort of a real jewel
• 36:56
  Speaker 5: in the American public health system.
• 36:58
  Speaker 2: Obviously, they haven't filed a recent response yet, and I
• 37:00
  Speaker 2: don't think he's even said anything about the suit. I mean,
• 37:03
  Speaker 2: what might their possible defense be.
• 37:06
  Speaker 5: I mean, it's really a question of how far executive
• 37:08
  Speaker 5: authority goes The Department of Health and Human Services is
• 37:13
  Speaker 5: part of the executive brands. So in theory, the administration
• 37:18
  Speaker 5: has the power. Even though Congress authorizes the funding and
• 37:23
  Speaker 5: allocates it, the administration gets to decide how the agency
• 37:27
  Speaker 5: is working. And I think what we're going to hear
• 37:28
  Speaker 5: from this administration is that this agency was floated, that
• 37:32
  Speaker 5: it was too big, too inefficient, that there was no accountability,
• 37:36
  Speaker 5: and that they are essentially taking a painful step that
• 37:42
  Speaker 5: reduces red tape and kind of forces federal health policy
• 37:45
  Speaker 5: to be improved. That's the argument they're making. I'm not
• 37:48
  Speaker 5: endorsing it by forcing more action into the states and
• 37:52
  Speaker 5: in the communities rather than with the centralized federal mandate.
• 37:57
  Speaker 5: So those are the argument they're going to make. They're
• 37:58
  Speaker 5: going to argue about and about budget deficits. But it'll
• 38:02
  Speaker 5: be interesting to see how the court treat this one,
• 38:04
  Speaker 5: and it would not surprise me if this ends up
• 38:06
  Speaker 5: in the Screme Court.
• 38:07
  Speaker 2: Speaking about RFK Junior in general, he had those very controversial,
• 38:12
  Speaker 2: tough hearings for his nomination, and you know, because he's
• 38:17
  Speaker 2: a vaccine skeptic. To put it mildly, he made promises
• 38:21
  Speaker 2: about not disturbing vaccines, but has he already started to
• 38:25
  Speaker 2: undermine vaccines in different ways.
• 38:28
  Speaker 5: Absolutely, there's definitely been i would say, a quiet rollback
• 38:33
  Speaker 5: on numerous vaccines. And we're already seeing, you know, examples
• 38:38
  Speaker 5: of the importance vaccines with the musile outbreaks that are
• 38:41
  Speaker 5: happening in Texas in the other parts of the country.
• 38:44
  Speaker 5: But we're already seeing essentially a vaccine opportunities foregone, like
• 38:49
  Speaker 5: with the bird flu, based on lack of personnel. And
• 38:52
  Speaker 5: I do think it's happening sort of in a lot
• 38:54
  Speaker 5: of quiet steps rather than in one self swoop. I
• 38:58
  Speaker 5: expect that will continue based on the not only URK,
• 39:01
  Speaker 5: but the people around him, for whom this is really
• 39:04
  Speaker 5: you know, a kind of passionate point our K has
• 39:07
  Speaker 5: a normous power as the head of the agency, and
• 39:10
  Speaker 5: what we're seeing is in a number of key public
• 39:13
  Speaker 5: health positions are going to people who are really passionate
• 39:17
  Speaker 5: ideologue for all of the positions that he's about. And
• 39:20
  Speaker 5: so we're seeing a number of anti vax people in
• 39:24
  Speaker 5: leadership roles, and obviously that that doesn't bode well for
• 39:27
  Speaker 5: getting us ready for the vaccines we're going to need
• 39:31
  Speaker 5: in the coming years.
• 39:32
  Speaker 2: Yeah, I mean the cuts in research funding are particularly concerning.
• 39:36
  Speaker 5: It's radical, and it feels like the deliberate sabotage of
• 39:40
  Speaker 5: our public health infrastructure and an illegal power graph without
• 39:44
  Speaker 5: any plan of how this impacts anybody. You know, our
• 39:48
  Speaker 5: health research has been, without question, the strongest in the world,
• 39:53
  Speaker 5: and it's hard to believe that if we have four
• 39:55
  Speaker 5: years of continued cutting that it will bear any semblance
• 39:58
  Speaker 5: of what it was.
• 39:59
  Speaker 2: Thanks much, Harry. That's healthcare attorney Harry Nelson, and that's
• 40:03
  Speaker 2: it for this edition of The Bloomberg Law Show. Remember
• 40:06
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• 40:08
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• 40:12
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• 40:18
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• 40:20
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• 40:24
  Speaker 2: and you're listening to Bloomberg