May 8, 2025 • 40 mins
Constitutional law expert David Super, a professor at Georgetown Law, discusses the Supreme Court allowing the Trump administration to start discharging transgender servicemembers. Former federal prosecutor Jimmy Gurule, a professor at Notre Dame Law School, discusses the Los Angeles US Attorney making a plea deal with a former sheriff’s deputy after he was convicted by a jury. Healthcare attorney Harry Nelson, a partner at Leech Tishman Nelson Hardiman, discusses 20 State Attorneys General suing the Department of Health and human Services. June Grasso hosts.
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Episode Transcript
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Speaker 1 (00:02):
This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2 (00:08):
Transgender people have been serving openly in the military for
nearly a decade, but this week the Supreme Court said
that President Trump could begin executing his ban on transgender
military service. The conservatives on the court, over the descents
of the three liberal justices, have paused a federal judges
(00:28):
order blocking the ban, allowing the Trump administration to start
discharging thousands of transgender service members, including experienced, decorated officers
who've served openly for years. Defense Secretary Pete Hegseth said
the military is leaving wokeness and weakness behind.
Speaker 3 (00:48):
No more pronouns, no more climate change obsession, no more
emergency vaccine mandates, no more dudes in dresses. We're done
with that.
Speaker 2 (01:02):
The lead plaintiff in the case is Emily Shilling, a
Navy commander in combat pilot with nearly twenty years of
service who's flown more than sixty combat missions in both
the Afghanistan and Iraq wars. My guest is constitutional law
expert David super, a professor at Georgetown Law. This is
a one paragraph order, so we have no idea what
(01:25):
their reasoning was. We just know that the three liberal
justices dissented. What's your take on this decision.
Speaker 4 (01:33):
I think it's disappointing because the plaintiffs made a compelling case.
This looks like a classic equal protection claim. The executive order,
as plainiffs say, is dripping with consent or transgender people.
So this is big a treat not military preparedness, and
(01:55):
I would have hoped the Court would have treated it accordingly.
But that doesn't mean that they've resolved on the merits.
Speaker 2 (02:03):
A federal judge in Washington State had blocked the ban.
Actually two federal judges have blocked it. Judge Benjamin Settle said,
it's not an especially close question. Will you tell us
about the claims of the transgender troops in this case?
Speaker 4 (02:21):
There, I think most central claim is that they're being
denied equal protection of the law. The Supreme Court is
long held that the Fifth Amendment's requirement of due process
implicates equal protection of the law, and that the federal
government may not deny people equal protection, particularly if it
is discriminating on the basis of a historically sensitive category.
(02:46):
The soldiers are alleging that they're being discriminated against both
because of sex and because of their transgender status, and
that the government has nowhere near enough adequate justification for doing.
Speaker 2 (02:59):
This is a one paragraph order, so we have no
idea what their reasoning was. We just know that the
three liberal justices dissented. But in a case like this,
shouldn't they have allowed the status quo to remain in place.
Now the Trump administration is going to be able to
discharge thousands of troops.
Speaker 4 (03:19):
That certainly would be the usual practice and the practice
the Court has insisted on in many cases involving the
Biden administration, where they prohibited the change from taking place
until it was properly litigated. This opinion from the District
Court in Washington is quite long, quite detailed, quite careful.
(03:43):
You can agree with it or not. That it is
certainly not a casual opinion, and one would expect that
it would stand and preserve the status quo unless there
was a compelling reason otherwise. It's disappointing that the Supreme
Court was unable or unwilling to state any compelling reason
(04:04):
for this change of the status quo.
Speaker 2 (04:06):
At the Supreme Court, what the Trump administration argue was
that judges are required to show substantial deference to the
Defense Department's judgment on military issues, even though the lower
courts didn't find any backup for the Trump administration's claims
that the presence of transgender people in the armed services
(04:29):
undermines military effectiveness. Do you think that deference is the
main reason why the Supreme Court decided to lift the injunction?
Speaker 4 (04:40):
Only suspect it is. The President has been asking for
deference on many military and foreign affairs matters. The Court
denied him that deference on his efforts to use the
Alien Enemies Act. And my guess is the the Court
trying to balance the scales in that regard.
Speaker 2 (05:03):
And as far as whether irreparable injury will be suffered,
the order requires the transgender troops to voluntarily separate from
the military or face quote involuntary separation, which is a
stain on their records that could deny them veterans' benefits,
So that scenario seems like irreparable injury.
Speaker 4 (05:24):
In principle, the administration could be ordered to restore their
prior status if it ultimately loses this litigation. But the
whole point of irreparable injury is that litigants are forced
to suffer circumstances that can't be fully corrected, and in
(05:46):
the best case scenario, having one's military service interrupted, having
to gamble ones the a benefits away. All of that
is classic irrepriabend.
Speaker 2 (06:00):
In Chump's first term, the Supreme Court allowed an earlier
transgender military band to take effect, but that first ban
exempted current troops, so it was more like a ban
on enlistment. This goes further because it's going to allow
them to discharge people who are currently serving. I mean,
(06:21):
the lead plaintiff is a decorated Navy pilot with over
sixty combat missions.
Speaker 4 (06:28):
Yes, this is very different than what we saw before,
and that's I think the core of what the lower
court found is that there simply was no evidence to
support this. If the government had an important reason for
an action, then deference would owe, and the lower court
(06:48):
firmly upheld that. But it found that this was not
a military judgment but a political judgment by the president
that the Secretary of Defense carried out without gathering any
evidence that these people are not able to serve their
country effectively. And what's striking about the plaintiffs in this
(07:12):
case is that we know a lot about them. They've
been serving, they've been performing, and if they weren't, they
could certainly be thrown out on an individual basis. But
throwing them out on the basis of prejudice when we
have ample evidence that they're effective soldiers and service people
is disturbing and it's ignorant.
Speaker 2 (07:33):
I'm surprised that one of the three liberals didn't write
a descent.
Speaker 5 (07:37):
Are you not?
Speaker 4 (07:39):
Necessarily if the liberals write a descent, then either the
majority or some justice in the majority write an opinion
defending what was done, and that would tend to lock
in positions. This is such a disturbing and difficult to
(08:00):
justify action that I think the liberals may have decided
that it's best that no one put pen to paper
any more than necessary right now, and hope that this
can be reversed when it's heard on the errants tell me.
Speaker 2 (08:15):
What happens now. So this was about the order from
the judge in Washington State. A judge in Washington, DC
has also blocked the policy nationwide, and the Court of
Appeals for the DC Circuit put that on hold temporarily
while it heard oral arguments. I mean, how does that
(08:35):
case work out when you have the Supreme Court lifting
the injunction of the Washington State Judge.
Speaker 4 (08:41):
That's precisely why the absence of opinions is so significant
and so telling here. They're going to be oral arguments
in the Ninth Circuit and the DC Circuit. Panels in
each of those courts will write opinions about this, and
it will almost certainly come back to the Supreme Court
(09:01):
on the merits. So it's really wide open. There are
many grounds for denying a stay or granting a stay,
and precisely because the Court didn't write an opinion, we
don't know which of those it is. It could be
something as technical as concerns about the standing of plainiffs
(09:23):
or concerned about whether they made a proper demonstration of
irreparable injury. So there's nothing about this action that prejudges
the merits. They have lifted injunctions in other cases saying
we don't think the plaintiffs are likely to prevail on
the merits. They didn't say that here.
Speaker 2 (09:44):
So if this could come back to the Court and
the justices could have a different opinion.
Speaker 4 (09:49):
Well it would come back to the Court in a
different form, and they could very well be inclined on
the merit to find for the plaintiffs, even if they
didn't think an injunction pending litigation was appropriate.
Speaker 2 (10:04):
As you know, the Supreme Court heard a major transgender
rights case in December over Tennessee's ban on gender affirming
medical care for transgender miners. It did seem like the
justices we're going to uphold that ban. I mean, together
with this, does it show hostility towards transgender rights?
Speaker 4 (10:27):
These are different cases. The Supreme Court in Bosstok a
few years ago held that the prohibition on discrimination on
the base of sexts in Title seven of the Civil
Rights Act is applicable to gay, lesbian, and transgender people.
(10:47):
So it has done much of the analytical heavy lifting
required to understand the rights of trans people. The Tennessee case,
we obviously don't know how it'll be resolved, but that's
a much narrower set of restrictions and justified in ways
(11:11):
that are particular to those I hope the Court strikes
down the Tennessee law, but if it doesn't, I don't
think that tells you a great deal about how any
non medical cases would be decided.
Speaker 2 (11:26):
I also want to ask you about a controversial comment
by President Trump on Meet the Press on Sunday, don't
you need to uphold the Constitution of the United States's press.
I don't know.
Speaker 4 (11:40):
I have to respond by saying again, I have brilliant
lawyers that work for me, and they are going to
obviously follow what the Supreme Court said.
Speaker 2 (11:50):
I mean, in the past he has talked about his
Article two powers under the Constitution.
Speaker 4 (11:56):
Well, the Constitution has many things in it. It has
articles which I'm sure he feels the need to uphold.
Then those pesky Article one and Article three and Bill
of Rights. Perhaps he's less enthusiastic about those. I think
that the people that need to hear his remarks on
Sunday are the Supreme Court, and the Supreme Court has,
(12:17):
in a variety of ways all spring been kicking the
can down the road and hoping the administration will come
around to acting lawfully. Arguably, the action we were discussing
concerning the transgender ban in the military is another example
of the court kicking things down the road. But a
(12:39):
president who has harshly criticized judges, called some judges that
he appointed communists, and has expressed great indifference about whether
to comply with Supreme Court decrees, and it's not complied
with several Supreme Court at lower court decrees is not
(13:01):
going to voluntarily change his too, and the Supreme Court
is going to have to decide whether they are going
to insist upon compliance with the law.
Speaker 2 (13:11):
They'll certainly have opportunities to do that considering all the
emergency petitions from the Trump administration. Thanks so much, David.
That's Professor David super of Georgetown Law. Coming up next.
Los Angeles federal prosecutors resign after the US Attorney gives
a plea deal to a convicted felon. This is Bloomberg to.
Speaker 4 (13:34):
The defendant, Please rise and face the jury. What is
your verdict? We find it?
Speaker 5 (13:42):
Defendent guilty is charged.
Speaker 2 (13:45):
The next step after a jury finds a defendant guilty
is sentencing by the judge. But in a completely unorthodox move,
the new US Attorney in Los Angeles is stepping in
trying to stop the set of a convicted felon and
moving to strike the jury's verdict. After a three day trial,
(14:06):
a jury convicted former La County Sheriff's deputy Trevor Kirk
of a felony for using excessive force when he assaulted
a black woman outside a supermarket two years ago, throwing
her to the ground, holding her down, and pepper spraying
her while responding to a reported robbery. He's facing a
ten year prison sentence for that conviction, but now, in
(14:30):
an extraordinary move, US Attorney Bill Esseli is giving Kirk
a plea deal and asking the trial judge to throw
out the jury's verdict. Joining me is former federal prosecutor
Jimmy Garoule, a professor at Notre Dame Law School. So, Jimmy,
this former sheriff's deputy, is supposed to be sentenced this month,
(14:51):
facing ten years for the felony conviction, and then suddenly
the new US attorney comes in and gives him a
deal to please guilty to a misdemeanor, with the government
recommending a year's probation and asking the judge to strike
the jury's finding that he injured his victim, which made
it a felony.
Speaker 1 (15:10):
Well, it's an extraordinary action and it doesn't appear to
be justified based on the facts or the law. And
when I say that, what I mean is that if
the claim was that he had not received a fair trial,
well that's the purpose of a direct appeal. The defendant
would appeal the conviction and highlight the heirs or alleged
airs that were conducted during the jury trial. But there
(15:32):
doesn't appear to be any allegation by the state or
the defendant that his trial was not fair, did not
comport with due process of law. Alternatively, if the claim is, oh,
we have newly discovered evidence that proves his innocence, well
there's a whole set of post conviction procedures that deal
with that process to petition the court through a petition
for post conviction relief to vacate the conviction. And there's
(15:53):
no claims or allegations made to that effect that, oh,
you know, he's actually innocent and we just learned after
the conviction of this new evidence that proves his innocence.
And so then the question is, well, what is a justification.
What's changed? What's a justification for this extraordinary action basically
to override the verdict of the jury. And it appears
that it's simply that there's been a change of administration.
(16:17):
There's a new US attorney, and he was prosecuted under
the previous Biden administration. At least the initial indictment was
brought at that time, and the charges were filed and
the new sheriff in town wants to undo what the
jury did, which suggests me that the motivation or justification
is purely political.
Speaker 2 (16:36):
The judge in the case denied emotion from the defense
for a quitt last month and said that Kirk acted
aggressively towards the woman from the outset, and then the
footage of the incident was sufficient evidence for a jury
to find that he'd had used objectively unreasonable force.
Speaker 1 (16:54):
Yeah, so as a matter of fact, you know that
the court is finding that there was sufficient evidence presented
a trial to justify the case, and as a result,
the defendant received the full panoply of due process protections.
I mean, he was represented by counsel. Prosecution had to
prove his guilt beyond a reasonable doubt, the jury had
to find him guilty unanimously. And so there again does
(17:15):
not appear to be any factual basis justification or legal
justification for overturning the conviction. And what it suggests to
me is that this is another example of the Trump
administration kind of ignoring or evading the rule of law
in the case of undocumented immigrants. In the claim is well,
(17:35):
they're not entitled to do process. In this particular case,
with respect to Deputy Trevor Kirk, he received full due process,
but the administration, the Trump administration, didn't like the result.
And because they didn't like the result, then they're seeking
to somehow vacate the jury conviction, which I think undermines
the rule of law and undermines the public's confidence in
(17:57):
the criminal justice system and the validity of convictions.
Speaker 2 (18:01):
Besides that, for federal prosecutors who handle the case, including
the chief of the Public Corruption and Civil Rights Section,
refuse to sign the plea agreement and withdrew from the case.
And then three of them resigned.
Speaker 1 (18:15):
Yeah, they stepped down, I mean, which is an expression
of their disagreement with this result and their perception understanding
that this was just an unfair, unjustified action by their
supervisor and again is not justified by any legal principle
and any legal president, any legal authority. And you know,
there's kind of a parallel here, I mean with respective
(18:38):
plea bargains. For example, if a defendant enters into a
plea bargain, he may withdraw the plea bargain after the fact,
but only based upon a finding of by the court
that withdrawing the Guilly plea would be in the interests
of justice. And so what's the standard here if the
judges ultimately to decide whether or not a valid jury
(18:59):
verdict should be overridden for political considerations. I mean, that
doesn't strike as advancing the interests of justice. In fact,
it's just the opposite. It's ignoring justice. Justice was done
in this case. And the absence again of any claims
of wrongdoing, unfair trial, and effective assistance accounts any of
those types of legal arguments. This was a valid conviction
(19:21):
and it shouldn't be ignored and disregarded by the Department
of Justice, apparently the only reason being that they just
didn't like the end result.
Speaker 2 (19:31):
Yeah. Well, there was sort of a social media campaign
of support for Kirk, and a spokesperson for the LA
Sheriff's Professional Association wrote a letter to Trump urging him
to intervene before the case went to trial.
Speaker 1 (19:46):
That's the political reason. That was a political influence that
apparently caused the US attorneys to seek to override the
jury's conviction. And that's not a legitimate basis. I mean,
conviction should be based on the facts and the evidence,
not on issues political influence political affiliation with one party
or another. That's not democracy in the United States. That's
(20:08):
not the way democracy works in this country. This type
of outcome is going to serve to undermine the public's
confidence in the rule of law and the criminal justice system.
And they're going to say, well, how come this guy
got such favorable treatment and resolved? What about the other guy?
You know, what about somebody who wasn't a political favorite,
What about someone who wasn't a law enforcement officer, what
(20:31):
about someone who's an ordinary citizen. Would the ordinary citizen
receive this type of outcome a guilty verdict being overturned
for political reasons highly unlikely?
Speaker 2 (20:41):
And why should I serve on a jury if you're
going to take my verdict in my time exactly?
Speaker 1 (20:47):
I mean, it has so many negative, corrupting implications. I'm
really hopeful that the judge rejects this motion to withdraw
the guilty vertict and permit Kirk to plead gilly to
a misdemeanor. I mean, he's convicted of a felony and
now they want him to plead to a misdemeanor and
(21:07):
then they're going to give him probation. It's just shocking.
It's shocking. It's shocking action by the Department of Justice.
Speaker 2 (21:14):
Is the final decision the judges?
Speaker 1 (21:16):
Well, it's a good question, because I think it's such
an extraordinary action. I really strain to come up with
the legal authority. What's the legal authority for the judge,
the trial judge or presiding judge to vacate a valid
jury conviction, And I'm not aware of any I'm not
aware of any statute. I'm not aware of any case
(21:38):
precedent that would afford the trial judge to that authority.
So that's clearly an issue. The problem here is is
that who's going to appeal? I mean, if the judge
does this and vacates the jury conviction, who's going to
appeal it? Because the parties are in agreement. The defense
certainly would like this outcome, and the Prosecutor's office, US
Attorney's Office is proposing this result, and so there would
(22:01):
be no way to review judicially review the trial court's decision,
and so I think it would be final.
Speaker 2 (22:08):
Also, if he's allowed to plead down to a misdemeanor,
that means he could continue to work as a law
enforcement officer, and he could retain his right to own
a fire run.
Speaker 1 (22:17):
Yeah, I think that's part of it. I think that's
part of the justification, at least from the US journeys
of it. Oh, we don't want him to have the
stigma of a felon and all of the implications that
are associated with that, with being a convicted felon, you know,
which again would prohibit him from possessing a firearm. So
that's a federal crime for a felon to possess a firearm,
(22:38):
and so he couldn't work in any capacity that would
require him to carry a firearm. But you know, that's
what happens to defendants every day. You know, thousands of
defendants are convicted of felonies and that's one of the implications.
They're prohibited from possessing a firearm. So what's so unique
about this guy? Why does he get a pass? Why
(22:59):
should he bemitted to avoid that consequence of a felony conviction?
I can think of none other than political.
Speaker 2 (23:06):
It's reminiscent of all the federal prosecutors who are resigned
when the Manhattan US Attorney's Office was told to drop
the charges against New York City Mayor Eric Adams so
that he could help the Trump administration in its immigration arrests.
Speaker 1 (23:24):
Right. I think it's another instance where the line prosecutors
that are doing the heavy lifting in these cases are
just outraged by the political influence that the Trump administration
is having on the performance of their duties and obligations.
You know, they know, and I know, having served as
a former federal prosecutor, that these convictions should be based
(23:46):
solely on the facts and the evidence, limited by the law,
and they shouldn't be influenced by political actors, by political parties,
by political administrations. That's not justice. That's not how democracy
supposed to work and operate in the United States of America.
But it is, and we're seeing it, and not simply
one case, you know, the mayor at Eric Adams case,
but you know, this is another incident where that's happened,
(24:08):
and who knows if they will be more of these
types of cases. And here in addition, you know, we're
seeing you know, the Trump administration saying we want the
Department of Justice, the Attorney General's a target this particular individual. Well,
that's not how it works either. You don't go after
individuals by name because of who they are. You go
after individuals based upon what they did, what the facts are,
(24:29):
what the evidence is, not on their political affiliation or
their political opinion or actions that they taken that political
party views unfavorably. That's not how justice should work in
this country.
Speaker 2 (24:42):
US attorneys are political appointments. But do you think that
Trump's picks are even more charged politically? I mean, he
just withdrew the controversial nomination of Ed Martin to be
the DC US Attorney.
Speaker 1 (24:56):
Well, I think the problem is is that we know
that this particular presence that values loyalty, perhaps above all things, loyalty,
and so whatever he wants done, he expects the persons
that he has placed in those positions through political appointment
presidential appointment, to do what he wants them to do,
(25:16):
with no questions asking. I mean, when I was a prosecutor,
I never ever was looking over my shoulder thinking, oh,
I better not decide this matter this way, or take
this particular action because of political concerns or political retaliation,
or I'm going to be demoted if I do this
or I do that. That never entered my mind. You know,
(25:40):
the political implications, whether this would favor a political party,
or disfavorite political party. Harma political party was never a
consideration ever, and now it appears to be a consideration always.
There's this kind of black cloud I think over federal
prosecutors as to, oh, is there going to be retaliation
if I do this right, take this particular action. And
(26:01):
that's very chilling. That's very chilling. It's very disturbing, and
it's not what one would expect to happen in a free,
open democracy. That's what you'd expect and what we often
see in countries that are run by authoritarian governments and
authoritarian presidents.
Speaker 2 (26:17):
Can you think of any case even similar to what
the US attorney is doing here or trying to do here.
Speaker 1 (26:23):
I can't stress enough just how shocking, how unprecedented it is.
I mean, I've been at this. I was a prosecutor
for nine years before I joined the law faculty here.
I've been here for decades now. I cannot recall a
federal case where this has happened where the prosecutors said, oh, oops,
you know, yeah, we initiated this prosecution, we initiated the
(26:45):
criminal charges, we advocated to the jury for conviction, and
now we want that jury conviction to be vacated, not
for anything that was done wrong at the trial or
because of insufficient evidence or newly discovered evidence of proofs
is then a now just because now the new sheriff
in town doesn't like that result.
Speaker 2 (27:04):
Well, it'll be really interesting to see how the judge
handles this in the sentencing. Thanks for joining me today, Jimmy.
That's professor Jimmy Garoule of Notre Dame Law School. Up next,
attorneys general sued the Department of Health and Human Services.
This is Bloomberg.
Speaker 1 (27:22):
This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2 (27:28):
Twenty Democratic attorneys general are suing the US Department of
Health and Human Services for firing health workers and cutting
programs in a lawsuit filed on Monday. They're pushing for
an injunction to prevent the quote unconstitutional and illegal dismantling
of the AHHS, which they claim is already wreaking havoc
(27:50):
on the health landscape. The lawsuit comes after a massive
restructuring of the agency by Health Secretary Robert F. Kennedy.
Junior healthcare attorney Harry Nelson, a partner at Leech Tishman
Nelson Hardiman Harry in general. How has RFK Junior changed
the department.
Speaker 5 (28:10):
There's been a pretty significant amount of changes. I think
the biggest change has been over ten thousand employees layoffs
since April, affecting nearly every major sub agency within the
Department of Health and Human Services, including the Center for
Disease Control, the FDA, the National Institute of Health, and others.
So there's just a lot fewer personnel in place. As
(28:34):
you mentioned, there's been a consolidation of twenty eight total
sub agencies within Health and Human Services down to fifteen,
with various mergers and eliminations, a number of closures of
programs of public health programs. The FDA passed on a
bird flu vaccine application due to some of the lab shutdowns.
(28:56):
The Center for Disease Control halted measles testing despite a
nationwide outbreak that we've been seeing. NIH has been suspending
research trials. Those have been the major disruptions. There's been
a few smaller ones. There was a specific Post nine
to eleven program for first responders that has been interrupted
(29:17):
because of staff shutdowns, and of course DOGE, the Department
of Government Efficiency is like continuing to all of the
above activities just streamlining organizationally getting rid of people, and
you know, every day is bringing new changes.
Speaker 2 (29:35):
And tell us about the allegations in the lawsuit.
Speaker 5 (29:38):
Sure, so, twenty States, led by the New York Attorney
General Laritia James, filed suit in Rhode Island, and they've
essentially alleged that all of the actions we just described
are illegal and they undermined the Department of Health and
Human Services ability to fulfill its statutory obligations. So specifically,
(29:59):
they all a violation of the Administrative Procedure Act, which
are the rules by which government program changes happen so
that there's notice and an opportunity to be heard with
what rules are made, and where there's any changes, there's
an allegation in the case of a violation of the
separation of powers, that the executive branch has essentially stepped
(30:22):
in and dismantled programs that were authorized specifically by Congress,
invading Congress's authority. And there's violations that many of the
specific laws related to public health are being violated, you know,
like the first Responders example, where there's people out there
stakeholders who are beneficiaries of these programs whose rights are
(30:44):
being violated. So those are the primary legal theories in
this case.
Speaker 2 (30:50):
Do they take aim at Channity's you know, larger public
health agenda and you know, his criticisms of COVID and vaccines.
Speaker 5 (31:00):
All that, that is really not part of this case.
I mean, this case is much more about the downsizing,
the radical downsizing of this agency and the way that
it proceeded, and not about rfk's specific idiosyncret views. And frankly,
it's not clear to what extent his views are driving
(31:21):
this because the behavior in many ways parallels what we
see that same agency DOGE doing in other parts of
the federal government. So in many ways it looks like
a broader ideological disruption and downsizing of a federal agency
rather than like rfkse particular disbelief in particular kinds of
(31:43):
health programs.
Speaker 2 (31:44):
It follows other lawsuits that claim that the cuts violate
the constitutions separation of powers and that basically they're taking
away congresses sign off on these things and money already
appropriated by Congress.
Speaker 5 (32:00):
Yeah, it really is the greatest test of constitutional powers
and what the executive can do to essentially shut down
all these programs that Congress authorized and established It's a
fascinating moment in terms of constitutional principles and how far
executive power can go.
Speaker 2 (32:17):
Last week, the Trump administration released a proposed budget which
has a twenty six percent cut to the HS discretionary budget,
but ask for five hundred million for Kennedy's Make America
Healthy Again initiative. Let's say the proposed budget is approved
by Congress. Does this suit and lose some of its
(32:41):
power because Congress has decided to cut the budget for HHS.
Speaker 5 (32:46):
I think this case is much more about the process,
you know again, about the administrative process by which things
have proceeded, than about the actual funding changes. The funding
changes that are proposed are certainly directionally the same as
as some of these changes, but right now we're in
an already funded environment where moneies have already been allocated
(33:09):
and we're not talking about it. So the two things
do go kind of handing gloves. But it's a slightly
different issue because the money is authorized. Congress has made
choices by VIR two of our previous budgets, and so
if the twenty twenty six budget you know is inactive, frankly,
it will be different cuts on the same trajectory and
they'll have additional further impacts. But these are two different things.
Speaker 2 (33:33):
So there's also similar cases that try to block the
termination of billions of dollars in grants awarded by federal
health agencies in support of public health research. I keep
hearing about cuts and funding to research. Is this like
overblown or is it really a serious threat to research?
Speaker 1 (33:56):
Now?
Speaker 5 (33:56):
This is affecting our medical and public health reas search
institutions across the board nationally. I believe in the twenty
twenty six budget, the proposal is eighteen billion dollars less
funding for biomedical research being conducted, but I think that
might be biomedical research and global health initiatives. But we're
(34:17):
talking a massive scale of reduction, assuming that it's going
to be consistent with what our f case indicated, we
can expect the cuts to come from new drugs and
more specialized health conditions, because our case been promising that
there's going to be a greater focus on chronic conditions
(34:39):
where there is a theory more thang for the buck
in terms of the number of people's affected, and a
focus on more disease prevention of things like diabetes. So
I do think that this is a profound shift for
the pharmaceutical industry, for all of the universities and all
of the academic researchers at our health systems around the country,
(35:04):
like radical changes in labs being shut down, projects being shuttered,
and just a massive, massive disruption.
Speaker 2 (35:12):
Thinking about the USAID, which was the first agency to
be dismantled basically by Doge. And in those cases, even
though the judges said that, you know, you can't dismantle
an agency completely, but it was already too late by
the time the judges orders came out. I mean, people
had been fired already and things had already started to disintegrate.
(35:37):
Some m the same thing happened here. I mean, he's
already done the Damage's.
Speaker 5 (35:41):
A fair question. I mean a lot of the researchers
are people who have jobs. For example, many people who
are like they might be researching cancer and also treating
in a local hospital. So in the case of a
lot of our research institutions, you have different categories of
researchers in different places who are going to be affected differently. Obviously,
people who are literally within the Nationalists to doue of
(36:03):
health are going to have to, you know, if their
positions are cutters looking for new jobs. But what I'm
hearing is a lot of uncertainty for doctors who you know,
who were including research activities, you know, in their priorities.
I think the cut represent like something like one third
of the total budget of the Nationalists to due to health,
and again it's going to be interesting to see where
(36:26):
it hits. Single biggest category, of course the United States
is cancer research. Enormous research dollars going into mental health,
infectious disease, and it's not clear that any of those
areas are going to be priorities. You know, we have
billions of dollars going into HIV AIDS research, various rare diseases, aging,
It's not clear where any of it's going to go,
(36:46):
and it can't be good for the advancement of public health.
And in many ways it does look like the dismantling
of something that has been sort of a real jewel
in the American public health system.
Speaker 2 (36:58):
Obviously, they haven't filed a recent response yet, and I
don't think he's even said anything about the suit. I mean,
what might their possible defense be.
Speaker 5 (37:06):
I mean, it's really a question of how far executive
authority goes The Department of Health and Human Services is
part of the executive brands. So in theory, the administration
has the power. Even though Congress authorizes the funding and
allocates it, the administration gets to decide how the agency
(37:27):
is working. And I think what we're going to hear
from this administration is that this agency was floated, that
it was too big, too inefficient, that there was no accountability,
and that they are essentially taking a painful step that
reduces red tape and kind of forces federal health policy
to be improved. That's the argument they're making. I'm not
(37:48):
endorsing it by forcing more action into the states and
in the communities rather than with the centralized federal mandate.
So those are the argument they're going to make. They're
going to argue about and about budget deficits. But it'll
be interesting to see how the court treat this one,
and it would not surprise me if this ends up
in the Screme Court.
Speaker 2 (38:07):
Speaking about RFK Junior in general, he had those very controversial,
tough hearings for his nomination, and you know, because he's
a vaccine skeptic. To put it mildly, he made promises
about not disturbing vaccines, but has he already started to
undermine vaccines in different ways.
Speaker 5 (38:28):
Absolutely, there's definitely been i would say, a quiet rollback
on numerous vaccines. And we're already seeing, you know, examples
of the importance vaccines with the musile outbreaks that are
happening in Texas in the other parts of the country.
But we're already seeing essentially a vaccine opportunities foregone, like
(38:49):
with the bird flu, based on lack of personnel. And
I do think it's happening sort of in a lot
of quiet steps rather than in one self swoop. I
expect that will continue based on the not only URK,
but the people around him, for whom this is really
you know, a kind of passionate point our K has
a normous power as the head of the agency, and
(39:10):
what we're seeing is in a number of key public
health positions are going to people who are really passionate
ideologue for all of the positions that he's about. And
so we're seeing a number of anti vax people in
leadership roles, and obviously that that doesn't bode well for
getting us ready for the vaccines we're going to need
(39:31):
in the coming years.
Speaker 2 (39:32):
Yeah, I mean the cuts in research funding are particularly concerning.
Speaker 5 (39:36):
It's radical, and it feels like the deliberate sabotage of
our public health infrastructure and an illegal power graph without
any plan of how this impacts anybody. You know, our
health research has been, without question, the strongest in the world,
and it's hard to believe that if we have four
years of continued cutting that it will bear any semblance
(39:58):
of what it was.
Speaker 2 (39:59):
Thanks much, Harry. That's healthcare attorney Harry Nelson, and that's
it for this edition of The Bloomberg Law Show. Remember
you can always get the latest legal news on our
Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify,
and at www dot Bloomberg dot com, slash podcast Slash Law,
and remember to tune into The Bloomberg Law Show every
(40:20):
weeknight at ten pm Wall Street Time. I'm June Grosso
and you're listening to Bloomberg
This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2 (00:08):
Transgender people have been serving openly in the military for
nearly a decade, but this week the Supreme Court said
that President Trump could begin executing his ban on transgender
military service. The conservatives on the court, over the descents
of the three liberal justices, have paused a federal judges
(00:28):
order blocking the ban, allowing the Trump administration to start
discharging thousands of transgender service members, including experienced, decorated officers
who've served openly for years. Defense Secretary Pete Hegseth said
the military is leaving wokeness and weakness behind.
Speaker 3 (00:48):
No more pronouns, no more climate change obsession, no more
emergency vaccine mandates, no more dudes in dresses. We're done
with that.
Speaker 2 (01:02):
The lead plaintiff in the case is Emily Shilling, a
Navy commander in combat pilot with nearly twenty years of
service who's flown more than sixty combat missions in both
the Afghanistan and Iraq wars. My guest is constitutional law
expert David super, a professor at Georgetown Law. This is
a one paragraph order, so we have no idea what
(01:25):
their reasoning was. We just know that the three liberal
justices dissented. What's your take on this decision.
Speaker 4 (01:33):
I think it's disappointing because the plaintiffs made a compelling case.
This looks like a classic equal protection claim. The executive order,
as plainiffs say, is dripping with consent or transgender people.
So this is big a treat not military preparedness, and
(01:55):
I would have hoped the Court would have treated it accordingly.
But that doesn't mean that they've resolved on the merits.
Speaker 2 (02:03):
A federal judge in Washington State had blocked the ban.
Actually two federal judges have blocked it. Judge Benjamin Settle said,
it's not an especially close question. Will you tell us
about the claims of the transgender troops in this case?
Speaker 4 (02:21):
There, I think most central claim is that they're being
denied equal protection of the law. The Supreme Court is
long held that the Fifth Amendment's requirement of due process
implicates equal protection of the law, and that the federal
government may not deny people equal protection, particularly if it
is discriminating on the basis of a historically sensitive category.
(02:46):
The soldiers are alleging that they're being discriminated against both
because of sex and because of their transgender status, and
that the government has nowhere near enough adequate justification for doing.
Speaker 2 (02:59):
This is a one paragraph order, so we have no
idea what their reasoning was. We just know that the
three liberal justices dissented. But in a case like this,
shouldn't they have allowed the status quo to remain in place.
Now the Trump administration is going to be able to
discharge thousands of troops.
Speaker 4 (03:19):
That certainly would be the usual practice and the practice
the Court has insisted on in many cases involving the
Biden administration, where they prohibited the change from taking place
until it was properly litigated. This opinion from the District
Court in Washington is quite long, quite detailed, quite careful.
(03:43):
You can agree with it or not. That it is
certainly not a casual opinion, and one would expect that
it would stand and preserve the status quo unless there
was a compelling reason otherwise. It's disappointing that the Supreme
Court was unable or unwilling to state any compelling reason
(04:04):
for this change of the status quo.
Speaker 2 (04:06):
At the Supreme Court, what the Trump administration argue was
that judges are required to show substantial deference to the
Defense Department's judgment on military issues, even though the lower
courts didn't find any backup for the Trump administration's claims
that the presence of transgender people in the armed services
(04:29):
undermines military effectiveness. Do you think that deference is the
main reason why the Supreme Court decided to lift the injunction?
Speaker 4 (04:40):
Only suspect it is. The President has been asking for
deference on many military and foreign affairs matters. The Court
denied him that deference on his efforts to use the
Alien Enemies Act. And my guess is the the Court
trying to balance the scales in that regard.
Speaker 2 (05:03):
And as far as whether irreparable injury will be suffered,
the order requires the transgender troops to voluntarily separate from
the military or face quote involuntary separation, which is a
stain on their records that could deny them veterans' benefits,
So that scenario seems like irreparable injury.
Speaker 4 (05:24):
In principle, the administration could be ordered to restore their
prior status if it ultimately loses this litigation. But the
whole point of irreparable injury is that litigants are forced
to suffer circumstances that can't be fully corrected, and in
(05:46):
the best case scenario, having one's military service interrupted, having
to gamble ones the a benefits away. All of that
is classic irrepriabend.
Speaker 2 (06:00):
In Chump's first term, the Supreme Court allowed an earlier
transgender military band to take effect, but that first ban
exempted current troops, so it was more like a ban
on enlistment. This goes further because it's going to allow
them to discharge people who are currently serving. I mean,
(06:21):
the lead plaintiff is a decorated Navy pilot with over
sixty combat missions.
Speaker 4 (06:28):
Yes, this is very different than what we saw before,
and that's I think the core of what the lower
court found is that there simply was no evidence to
support this. If the government had an important reason for
an action, then deference would owe, and the lower court
(06:48):
firmly upheld that. But it found that this was not
a military judgment but a political judgment by the president
that the Secretary of Defense carried out without gathering any
evidence that these people are not able to serve their
country effectively. And what's striking about the plaintiffs in this
(07:12):
case is that we know a lot about them. They've
been serving, they've been performing, and if they weren't, they
could certainly be thrown out on an individual basis. But
throwing them out on the basis of prejudice when we
have ample evidence that they're effective soldiers and service people
is disturbing and it's ignorant.
Speaker 2 (07:33):
I'm surprised that one of the three liberals didn't write
a descent.
Speaker 5 (07:37):
Are you not?
Speaker 4 (07:39):
Necessarily if the liberals write a descent, then either the
majority or some justice in the majority write an opinion
defending what was done, and that would tend to lock
in positions. This is such a disturbing and difficult to
(08:00):
justify action that I think the liberals may have decided
that it's best that no one put pen to paper
any more than necessary right now, and hope that this
can be reversed when it's heard on the errants tell me.
Speaker 2 (08:15):
What happens now. So this was about the order from
the judge in Washington State. A judge in Washington, DC
has also blocked the policy nationwide, and the Court of
Appeals for the DC Circuit put that on hold temporarily
while it heard oral arguments. I mean, how does that
(08:35):
case work out when you have the Supreme Court lifting
the injunction of the Washington State Judge.
Speaker 4 (08:41):
That's precisely why the absence of opinions is so significant
and so telling here. They're going to be oral arguments
in the Ninth Circuit and the DC Circuit. Panels in
each of those courts will write opinions about this, and
it will almost certainly come back to the Supreme Court
(09:01):
on the merits. So it's really wide open. There are
many grounds for denying a stay or granting a stay,
and precisely because the Court didn't write an opinion, we
don't know which of those it is. It could be
something as technical as concerns about the standing of plainiffs
(09:23):
or concerned about whether they made a proper demonstration of
irreparable injury. So there's nothing about this action that prejudges
the merits. They have lifted injunctions in other cases saying
we don't think the plaintiffs are likely to prevail on
the merits. They didn't say that here.
Speaker 2 (09:44):
So if this could come back to the Court and
the justices could have a different opinion.
Speaker 4 (09:49):
Well it would come back to the Court in a
different form, and they could very well be inclined on
the merit to find for the plaintiffs, even if they
didn't think an injunction pending litigation was appropriate.
Speaker 2 (10:04):
As you know, the Supreme Court heard a major transgender
rights case in December over Tennessee's ban on gender affirming
medical care for transgender miners. It did seem like the
justices we're going to uphold that ban. I mean, together
with this, does it show hostility towards transgender rights?
Speaker 4 (10:27):
These are different cases. The Supreme Court in Bosstok a
few years ago held that the prohibition on discrimination on
the base of sexts in Title seven of the Civil
Rights Act is applicable to gay, lesbian, and transgender people.
(10:47):
So it has done much of the analytical heavy lifting
required to understand the rights of trans people. The Tennessee case,
we obviously don't know how it'll be resolved, but that's
a much narrower set of restrictions and justified in ways
(11:11):
that are particular to those I hope the Court strikes
down the Tennessee law, but if it doesn't, I don't
think that tells you a great deal about how any
non medical cases would be decided.
Speaker 2 (11:26):
I also want to ask you about a controversial comment
by President Trump on Meet the Press on Sunday, don't
you need to uphold the Constitution of the United States's press.
I don't know.
Speaker 4 (11:40):
I have to respond by saying again, I have brilliant
lawyers that work for me, and they are going to
obviously follow what the Supreme Court said.
Speaker 2 (11:50):
I mean, in the past he has talked about his
Article two powers under the Constitution.
Speaker 4 (11:56):
Well, the Constitution has many things in it. It has
articles which I'm sure he feels the need to uphold.
Then those pesky Article one and Article three and Bill
of Rights. Perhaps he's less enthusiastic about those. I think
that the people that need to hear his remarks on
Sunday are the Supreme Court, and the Supreme Court has,
(12:17):
in a variety of ways all spring been kicking the
can down the road and hoping the administration will come
around to acting lawfully. Arguably, the action we were discussing
concerning the transgender ban in the military is another example
of the court kicking things down the road. But a
(12:39):
president who has harshly criticized judges, called some judges that
he appointed communists, and has expressed great indifference about whether
to comply with Supreme Court decrees, and it's not complied
with several Supreme Court at lower court decrees is not
(13:01):
going to voluntarily change his too, and the Supreme Court
is going to have to decide whether they are going
to insist upon compliance with the law.
Speaker 2 (13:11):
They'll certainly have opportunities to do that considering all the
emergency petitions from the Trump administration. Thanks so much, David.
That's Professor David super of Georgetown Law. Coming up next.
Los Angeles federal prosecutors resign after the US Attorney gives
a plea deal to a convicted felon. This is Bloomberg to.
Speaker 4 (13:34):
The defendant, Please rise and face the jury. What is
your verdict? We find it?
Speaker 5 (13:42):
Defendent guilty is charged.
Speaker 2 (13:45):
The next step after a jury finds a defendant guilty
is sentencing by the judge. But in a completely unorthodox move,
the new US Attorney in Los Angeles is stepping in
trying to stop the set of a convicted felon and
moving to strike the jury's verdict. After a three day trial,
(14:06):
a jury convicted former La County Sheriff's deputy Trevor Kirk
of a felony for using excessive force when he assaulted
a black woman outside a supermarket two years ago, throwing
her to the ground, holding her down, and pepper spraying
her while responding to a reported robbery. He's facing a
ten year prison sentence for that conviction, but now, in
(14:30):
an extraordinary move, US Attorney Bill Esseli is giving Kirk
a plea deal and asking the trial judge to throw
out the jury's verdict. Joining me is former federal prosecutor
Jimmy Garoule, a professor at Notre Dame Law School. So, Jimmy,
this former sheriff's deputy, is supposed to be sentenced this month,
(14:51):
facing ten years for the felony conviction, and then suddenly
the new US attorney comes in and gives him a
deal to please guilty to a misdemeanor, with the government
recommending a year's probation and asking the judge to strike
the jury's finding that he injured his victim, which made
it a felony.
Speaker 1 (15:10):
Well, it's an extraordinary action and it doesn't appear to
be justified based on the facts or the law. And
when I say that, what I mean is that if
the claim was that he had not received a fair trial,
well that's the purpose of a direct appeal. The defendant
would appeal the conviction and highlight the heirs or alleged
airs that were conducted during the jury trial. But there
(15:32):
doesn't appear to be any allegation by the state or
the defendant that his trial was not fair, did not
comport with due process of law. Alternatively, if the claim is, oh,
we have newly discovered evidence that proves his innocence, well
there's a whole set of post conviction procedures that deal
with that process to petition the court through a petition
for post conviction relief to vacate the conviction. And there's
(15:53):
no claims or allegations made to that effect that, oh,
you know, he's actually innocent and we just learned after
the conviction of this new evidence that proves his innocence.
And so then the question is, well, what is a justification.
What's changed? What's a justification for this extraordinary action basically
to override the verdict of the jury. And it appears
that it's simply that there's been a change of administration.
(16:17):
There's a new US attorney, and he was prosecuted under
the previous Biden administration. At least the initial indictment was
brought at that time, and the charges were filed and
the new sheriff in town wants to undo what the
jury did, which suggests me that the motivation or justification
is purely political.
Speaker 2 (16:36):
The judge in the case denied emotion from the defense
for a quitt last month and said that Kirk acted
aggressively towards the woman from the outset, and then the
footage of the incident was sufficient evidence for a jury
to find that he'd had used objectively unreasonable force.
Speaker 1 (16:54):
Yeah, so as a matter of fact, you know that
the court is finding that there was sufficient evidence presented
a trial to justify the case, and as a result,
the defendant received the full panoply of due process protections.
I mean, he was represented by counsel. Prosecution had to
prove his guilt beyond a reasonable doubt, the jury had
to find him guilty unanimously. And so there again does
(17:15):
not appear to be any factual basis justification or legal
justification for overturning the conviction. And what it suggests to
me is that this is another example of the Trump
administration kind of ignoring or evading the rule of law
in the case of undocumented immigrants. In the claim is well,
(17:35):
they're not entitled to do process. In this particular case,
with respect to Deputy Trevor Kirk, he received full due process,
but the administration, the Trump administration, didn't like the result.
And because they didn't like the result, then they're seeking
to somehow vacate the jury conviction, which I think undermines
the rule of law and undermines the public's confidence in
(17:57):
the criminal justice system and the validity of convictions.
Speaker 2 (18:01):
Besides that, for federal prosecutors who handle the case, including
the chief of the Public Corruption and Civil Rights Section,
refuse to sign the plea agreement and withdrew from the case.
And then three of them resigned.
Speaker 1 (18:15):
Yeah, they stepped down, I mean, which is an expression
of their disagreement with this result and their perception understanding
that this was just an unfair, unjustified action by their
supervisor and again is not justified by any legal principle
and any legal president, any legal authority. And you know,
there's kind of a parallel here, I mean with respective
(18:38):
plea bargains. For example, if a defendant enters into a
plea bargain, he may withdraw the plea bargain after the fact,
but only based upon a finding of by the court
that withdrawing the Guilly plea would be in the interests
of justice. And so what's the standard here if the
judges ultimately to decide whether or not a valid jury
(18:59):
verdict should be overridden for political considerations. I mean, that
doesn't strike as advancing the interests of justice. In fact,
it's just the opposite. It's ignoring justice. Justice was done
in this case. And the absence again of any claims
of wrongdoing, unfair trial, and effective assistance accounts any of
those types of legal arguments. This was a valid conviction
(19:21):
and it shouldn't be ignored and disregarded by the Department
of Justice, apparently the only reason being that they just
didn't like the end result.
Speaker 2 (19:31):
Yeah. Well, there was sort of a social media campaign
of support for Kirk, and a spokesperson for the LA
Sheriff's Professional Association wrote a letter to Trump urging him
to intervene before the case went to trial.
Speaker 1 (19:46):
That's the political reason. That was a political influence that
apparently caused the US attorneys to seek to override the
jury's conviction. And that's not a legitimate basis. I mean,
conviction should be based on the facts and the evidence,
not on issues political influence political affiliation with one party
or another. That's not democracy in the United States. That's
(20:08):
not the way democracy works in this country. This type
of outcome is going to serve to undermine the public's
confidence in the rule of law and the criminal justice system.
And they're going to say, well, how come this guy
got such favorable treatment and resolved? What about the other guy?
You know, what about somebody who wasn't a political favorite,
What about someone who wasn't a law enforcement officer, what
(20:31):
about someone who's an ordinary citizen. Would the ordinary citizen
receive this type of outcome a guilty verdict being overturned
for political reasons highly unlikely?
Speaker 2 (20:41):
And why should I serve on a jury if you're
going to take my verdict in my time exactly?
Speaker 1 (20:47):
I mean, it has so many negative, corrupting implications. I'm
really hopeful that the judge rejects this motion to withdraw
the guilty vertict and permit Kirk to plead gilly to
a misdemeanor. I mean, he's convicted of a felony and
now they want him to plead to a misdemeanor and
(21:07):
then they're going to give him probation. It's just shocking.
It's shocking. It's shocking action by the Department of Justice.
Speaker 2 (21:14):
Is the final decision the judges?
Speaker 1 (21:16):
Well, it's a good question, because I think it's such
an extraordinary action. I really strain to come up with
the legal authority. What's the legal authority for the judge,
the trial judge or presiding judge to vacate a valid
jury conviction, And I'm not aware of any I'm not
aware of any statute. I'm not aware of any case
(21:38):
precedent that would afford the trial judge to that authority.
So that's clearly an issue. The problem here is is
that who's going to appeal? I mean, if the judge
does this and vacates the jury conviction, who's going to
appeal it? Because the parties are in agreement. The defense
certainly would like this outcome, and the Prosecutor's office, US
Attorney's Office is proposing this result, and so there would
(22:01):
be no way to review judicially review the trial court's decision,
and so I think it would be final.
Speaker 2 (22:08):
Also, if he's allowed to plead down to a misdemeanor,
that means he could continue to work as a law
enforcement officer, and he could retain his right to own
a fire run.
Speaker 1 (22:17):
Yeah, I think that's part of it. I think that's
part of the justification, at least from the US journeys
of it. Oh, we don't want him to have the
stigma of a felon and all of the implications that
are associated with that, with being a convicted felon, you know,
which again would prohibit him from possessing a firearm. So
that's a federal crime for a felon to possess a firearm,
(22:38):
and so he couldn't work in any capacity that would
require him to carry a firearm. But you know, that's
what happens to defendants every day. You know, thousands of
defendants are convicted of felonies and that's one of the implications.
They're prohibited from possessing a firearm. So what's so unique
about this guy? Why does he get a pass? Why
(22:59):
should he bemitted to avoid that consequence of a felony conviction?
I can think of none other than political.
Speaker 2 (23:06):
It's reminiscent of all the federal prosecutors who are resigned
when the Manhattan US Attorney's Office was told to drop
the charges against New York City Mayor Eric Adams so
that he could help the Trump administration in its immigration arrests.
Speaker 1 (23:24):
Right. I think it's another instance where the line prosecutors
that are doing the heavy lifting in these cases are
just outraged by the political influence that the Trump administration
is having on the performance of their duties and obligations.
You know, they know, and I know, having served as
a former federal prosecutor, that these convictions should be based
(23:46):
solely on the facts and the evidence, limited by the law,
and they shouldn't be influenced by political actors, by political parties,
by political administrations. That's not justice. That's not how democracy
supposed to work and operate in the United States of America.
But it is, and we're seeing it, and not simply
one case, you know, the mayor at Eric Adams case,
but you know, this is another incident where that's happened,
(24:08):
and who knows if they will be more of these
types of cases. And here in addition, you know, we're
seeing you know, the Trump administration saying we want the
Department of Justice, the Attorney General's a target this particular individual. Well,
that's not how it works either. You don't go after
individuals by name because of who they are. You go
after individuals based upon what they did, what the facts are,
(24:29):
what the evidence is, not on their political affiliation or
their political opinion or actions that they taken that political
party views unfavorably. That's not how justice should work in
this country.
Speaker 2 (24:42):
US attorneys are political appointments. But do you think that
Trump's picks are even more charged politically? I mean, he
just withdrew the controversial nomination of Ed Martin to be
the DC US Attorney.
Speaker 1 (24:56):
Well, I think the problem is is that we know
that this particular presence that values loyalty, perhaps above all things, loyalty,
and so whatever he wants done, he expects the persons
that he has placed in those positions through political appointment
presidential appointment, to do what he wants them to do,
(25:16):
with no questions asking. I mean, when I was a prosecutor,
I never ever was looking over my shoulder thinking, oh,
I better not decide this matter this way, or take
this particular action because of political concerns or political retaliation,
or I'm going to be demoted if I do this
or I do that. That never entered my mind. You know,
(25:40):
the political implications, whether this would favor a political party,
or disfavorite political party. Harma political party was never a
consideration ever, and now it appears to be a consideration always.
There's this kind of black cloud I think over federal
prosecutors as to, oh, is there going to be retaliation
if I do this right, take this particular action. And
(26:01):
that's very chilling. That's very chilling. It's very disturbing, and
it's not what one would expect to happen in a free,
open democracy. That's what you'd expect and what we often
see in countries that are run by authoritarian governments and
authoritarian presidents.
Speaker 2 (26:17):
Can you think of any case even similar to what
the US attorney is doing here or trying to do here.
Speaker 1 (26:23):
I can't stress enough just how shocking, how unprecedented it is.
I mean, I've been at this. I was a prosecutor
for nine years before I joined the law faculty here.
I've been here for decades now. I cannot recall a
federal case where this has happened where the prosecutors said, oh, oops,
you know, yeah, we initiated this prosecution, we initiated the
(26:45):
criminal charges, we advocated to the jury for conviction, and
now we want that jury conviction to be vacated, not
for anything that was done wrong at the trial or
because of insufficient evidence or newly discovered evidence of proofs
is then a now just because now the new sheriff
in town doesn't like that result.
Speaker 2 (27:04):
Well, it'll be really interesting to see how the judge
handles this in the sentencing. Thanks for joining me today, Jimmy.
That's professor Jimmy Garoule of Notre Dame Law School. Up next,
attorneys general sued the Department of Health and Human Services.
This is Bloomberg.
Speaker 1 (27:22):
This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2 (27:28):
Twenty Democratic attorneys general are suing the US Department of
Health and Human Services for firing health workers and cutting
programs in a lawsuit filed on Monday. They're pushing for
an injunction to prevent the quote unconstitutional and illegal dismantling
of the AHHS, which they claim is already wreaking havoc
(27:50):
on the health landscape. The lawsuit comes after a massive
restructuring of the agency by Health Secretary Robert F. Kennedy.
Junior healthcare attorney Harry Nelson, a partner at Leech Tishman
Nelson Hardiman Harry in general. How has RFK Junior changed
the department.
Speaker 5 (28:10):
There's been a pretty significant amount of changes. I think
the biggest change has been over ten thousand employees layoffs
since April, affecting nearly every major sub agency within the
Department of Health and Human Services, including the Center for
Disease Control, the FDA, the National Institute of Health, and others.
So there's just a lot fewer personnel in place. As
(28:34):
you mentioned, there's been a consolidation of twenty eight total
sub agencies within Health and Human Services down to fifteen,
with various mergers and eliminations, a number of closures of
programs of public health programs. The FDA passed on a
bird flu vaccine application due to some of the lab shutdowns.
(28:56):
The Center for Disease Control halted measles testing despite a
nationwide outbreak that we've been seeing. NIH has been suspending
research trials. Those have been the major disruptions. There's been
a few smaller ones. There was a specific Post nine
to eleven program for first responders that has been interrupted
(29:17):
because of staff shutdowns, and of course DOGE, the Department
of Government Efficiency is like continuing to all of the
above activities just streamlining organizationally getting rid of people, and
you know, every day is bringing new changes.
Speaker 2 (29:35):
And tell us about the allegations in the lawsuit.
Speaker 5 (29:38):
Sure, so, twenty States, led by the New York Attorney
General Laritia James, filed suit in Rhode Island, and they've
essentially alleged that all of the actions we just described
are illegal and they undermined the Department of Health and
Human Services ability to fulfill its statutory obligations. So specifically,
(29:59):
they all a violation of the Administrative Procedure Act, which
are the rules by which government program changes happen so
that there's notice and an opportunity to be heard with
what rules are made, and where there's any changes, there's
an allegation in the case of a violation of the
separation of powers, that the executive branch has essentially stepped
(30:22):
in and dismantled programs that were authorized specifically by Congress,
invading Congress's authority. And there's violations that many of the
specific laws related to public health are being violated, you know,
like the first Responders example, where there's people out there
stakeholders who are beneficiaries of these programs whose rights are
(30:44):
being violated. So those are the primary legal theories in
this case.
Speaker 2 (30:50):
Do they take aim at Channity's you know, larger public
health agenda and you know, his criticisms of COVID and vaccines.
Speaker 5 (31:00):
All that, that is really not part of this case.
I mean, this case is much more about the downsizing,
the radical downsizing of this agency and the way that
it proceeded, and not about rfk's specific idiosyncret views. And frankly,
it's not clear to what extent his views are driving
(31:21):
this because the behavior in many ways parallels what we
see that same agency DOGE doing in other parts of
the federal government. So in many ways it looks like
a broader ideological disruption and downsizing of a federal agency
rather than like rfkse particular disbelief in particular kinds of
(31:43):
health programs.
Speaker 2 (31:44):
It follows other lawsuits that claim that the cuts violate
the constitutions separation of powers and that basically they're taking
away congresses sign off on these things and money already
appropriated by Congress.
Speaker 5 (32:00):
Yeah, it really is the greatest test of constitutional powers
and what the executive can do to essentially shut down
all these programs that Congress authorized and established It's a
fascinating moment in terms of constitutional principles and how far
executive power can go.
Speaker 2 (32:17):
Last week, the Trump administration released a proposed budget which
has a twenty six percent cut to the HS discretionary budget,
but ask for five hundred million for Kennedy's Make America
Healthy Again initiative. Let's say the proposed budget is approved
by Congress. Does this suit and lose some of its
(32:41):
power because Congress has decided to cut the budget for HHS.
Speaker 5 (32:46):
I think this case is much more about the process,
you know again, about the administrative process by which things
have proceeded, than about the actual funding changes. The funding
changes that are proposed are certainly directionally the same as
as some of these changes, but right now we're in
an already funded environment where moneies have already been allocated
(33:09):
and we're not talking about it. So the two things
do go kind of handing gloves. But it's a slightly
different issue because the money is authorized. Congress has made
choices by VIR two of our previous budgets, and so
if the twenty twenty six budget you know is inactive, frankly,
it will be different cuts on the same trajectory and
they'll have additional further impacts. But these are two different things.
Speaker 2 (33:33):
So there's also similar cases that try to block the
termination of billions of dollars in grants awarded by federal
health agencies in support of public health research. I keep
hearing about cuts and funding to research. Is this like
overblown or is it really a serious threat to research?
Speaker 1 (33:56):
Now?
Speaker 5 (33:56):
This is affecting our medical and public health reas search
institutions across the board nationally. I believe in the twenty
twenty six budget, the proposal is eighteen billion dollars less
funding for biomedical research being conducted, but I think that
might be biomedical research and global health initiatives. But we're
(34:17):
talking a massive scale of reduction, assuming that it's going
to be consistent with what our f case indicated, we
can expect the cuts to come from new drugs and
more specialized health conditions, because our case been promising that
there's going to be a greater focus on chronic conditions
(34:39):
where there is a theory more thang for the buck
in terms of the number of people's affected, and a
focus on more disease prevention of things like diabetes. So
I do think that this is a profound shift for
the pharmaceutical industry, for all of the universities and all
of the academic researchers at our health systems around the country,
(35:04):
like radical changes in labs being shut down, projects being shuttered,
and just a massive, massive disruption.
Speaker 2 (35:12):
Thinking about the USAID, which was the first agency to
be dismantled basically by Doge. And in those cases, even
though the judges said that, you know, you can't dismantle
an agency completely, but it was already too late by
the time the judges orders came out. I mean, people
had been fired already and things had already started to disintegrate.
(35:37):
Some m the same thing happened here. I mean, he's
already done the Damage's.
Speaker 5 (35:41):
A fair question. I mean a lot of the researchers
are people who have jobs. For example, many people who
are like they might be researching cancer and also treating
in a local hospital. So in the case of a
lot of our research institutions, you have different categories of
researchers in different places who are going to be affected differently. Obviously,
people who are literally within the Nationalists to doue of
(36:03):
health are going to have to, you know, if their
positions are cutters looking for new jobs. But what I'm
hearing is a lot of uncertainty for doctors who you know,
who were including research activities, you know, in their priorities.
I think the cut represent like something like one third
of the total budget of the Nationalists to due to health,
and again it's going to be interesting to see where
(36:26):
it hits. Single biggest category, of course the United States
is cancer research. Enormous research dollars going into mental health,
infectious disease, and it's not clear that any of those
areas are going to be priorities. You know, we have
billions of dollars going into HIV AIDS research, various rare diseases, aging,
It's not clear where any of it's going to go,
(36:46):
and it can't be good for the advancement of public health.
And in many ways it does look like the dismantling
of something that has been sort of a real jewel
in the American public health system.
Speaker 2 (36:58):
Obviously, they haven't filed a recent response yet, and I
don't think he's even said anything about the suit. I mean,
what might their possible defense be.
Speaker 5 (37:06):
I mean, it's really a question of how far executive
authority goes The Department of Health and Human Services is
part of the executive brands. So in theory, the administration
has the power. Even though Congress authorizes the funding and
allocates it, the administration gets to decide how the agency
(37:27):
is working. And I think what we're going to hear
from this administration is that this agency was floated, that
it was too big, too inefficient, that there was no accountability,
and that they are essentially taking a painful step that
reduces red tape and kind of forces federal health policy
to be improved. That's the argument they're making. I'm not
(37:48):
endorsing it by forcing more action into the states and
in the communities rather than with the centralized federal mandate.
So those are the argument they're going to make. They're
going to argue about and about budget deficits. But it'll
be interesting to see how the court treat this one,
and it would not surprise me if this ends up
in the Screme Court.
Speaker 2 (38:07):
Speaking about RFK Junior in general, he had those very controversial,
tough hearings for his nomination, and you know, because he's
a vaccine skeptic. To put it mildly, he made promises
about not disturbing vaccines, but has he already started to
undermine vaccines in different ways.
Speaker 5 (38:28):
Absolutely, there's definitely been i would say, a quiet rollback
on numerous vaccines. And we're already seeing, you know, examples
of the importance vaccines with the musile outbreaks that are
happening in Texas in the other parts of the country.
But we're already seeing essentially a vaccine opportunities foregone, like
(38:49):
with the bird flu, based on lack of personnel. And
I do think it's happening sort of in a lot
of quiet steps rather than in one self swoop. I
expect that will continue based on the not only URK,
but the people around him, for whom this is really
you know, a kind of passionate point our K has
a normous power as the head of the agency, and
(39:10):
what we're seeing is in a number of key public
health positions are going to people who are really passionate
ideologue for all of the positions that he's about. And
so we're seeing a number of anti vax people in
leadership roles, and obviously that that doesn't bode well for
getting us ready for the vaccines we're going to need
(39:31):
in the coming years.
Speaker 2 (39:32):
Yeah, I mean the cuts in research funding are particularly concerning.
Speaker 5 (39:36):
It's radical, and it feels like the deliberate sabotage of
our public health infrastructure and an illegal power graph without
any plan of how this impacts anybody. You know, our
health research has been, without question, the strongest in the world,
and it's hard to believe that if we have four
years of continued cutting that it will bear any semblance
(39:58):
of what it was.
Speaker 2 (39:59):
Thanks much, Harry. That's healthcare attorney Harry Nelson, and that's
it for this edition of The Bloomberg Law Show. Remember
you can always get the latest legal news on our
Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify,
and at www dot Bloomberg dot com, slash podcast Slash Law,
and remember to tune into The Bloomberg Law Show every
(40:20):
weeknight at ten pm Wall Street Time. I'm June Grosso
and you're listening to Bloomberg
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