August 26, 2025 • 41 mins
Harold Krent, a professor at the Chicago-Kent College of Law, discusses President Trump firing Fed Reserve Governor Lisa Cook and threatening to deploy the National Guard to Chicago. Anne Joseph O’Connell, a professor at Stanford Law School, discusses a judge rejecting Trump’s appointment of Alina Habba as the top federal prosecutor in New Jersey as unlawful. June Grasso hosts.
See omnystudio.com/listener for privacy information.
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:02):
You're listening to Bloomberg Law with June Grosso from Bloomberg Radio.
In a significant escalation of his battle with the Fed,
President Trump is moving to fire Lisa Cook, the first
black woman to serve on the Federal Board of Governors.
In a letter posted on truth Social late Monday, Trump
(00:24):
said he had quote sufficient cause to fire Cook, citing
allegations that she submitted fraudulent information on mortgage applications, although
she's not been charged with a crime. He reiterated his
position in the Oval office today, it.
Speaker 2 (00:40):
Seems to have had an infraction, and she can't have
an infraction, especially that infraction, because she's in charge of,
if you think about it, mortgages, and we need people
that are one hundred percent above board, and it doesn't
seem like she wish.
Speaker 1 (00:54):
Cook says she won't step down. Her lawyer, Abby Lowell,
says they'll sue, and that Trump's attack to fire her,
based solely on a referral letter, lacks any factual or
legal basis. Joining me is constitutional law expert Harold Krent,
a professor at the Chicago Kent College of Law.
Speaker 3 (01:13):
Can we assume that the.
Speaker 1 (01:15):
President is giving in on one point that he needs
cause to fire Cook because he said and a letter
posted on truth Social that he had sufficient cause to
fire her.
Speaker 4 (01:27):
And that's the surprise, is that the president has deviated
from his earlier line, which said that he can fire
anybody he wants to for any reason whatsoever. And by
inserting in the letter that he had caused to fire Cook,
that's suggesting the type of admission that he does need
to have cause to fire her. As a governor of
(01:48):
the Federal Reserve. He could always abandon that later in court,
but at least at this point, this is an unusual
claim for him, that he does need to have caused.
Speaker 3 (01:56):
This all goes.
Speaker 1 (01:57):
Back to FHFA Director Bill Poulty alleged that she lied
on loan applications for two properties, claiming she would use
each property as her primary residence. And Trump wrote in
a letter sent to Cook yesterday, at minimum, the conduct
that issue exhibits the sort of gross negligence in financial
(02:21):
transactions that calls into question your experience and trustworthiness as
a financial regulator.
Speaker 3 (02:29):
Is that cause?
Speaker 4 (02:30):
So this discharge of raises three issues in my mind anyway,
and the first is the one you've articulated, what is
caused and there is a dearth of precedent at the
federal level as to what is caused to justify dismissal
of someone who's otherwise protected in the government's employee for instance,
is there a reason to fire someone for something they
(02:52):
do outside their job, something they did in terms of
they got into a fight at a bar? Is that cause?
What happened here is at least akin to that. It's
like something that happened in our private life, not with
respect to her job. You know, that's one issue, but
there are others. You know, can a judge second guess
a presidence determination that the individual is not fit for
(03:14):
the office. That's a question of what kind of difference
the courts will give to the determination of cause. And
then there's the initial question of whether the president had
to give any kind of notice and ability to respond
before the discharge, if sort of being federal governor cooked
this was a question of an employee. The law is
(03:36):
clear that the employer needs to give notice an opportunity
to be heard prior to the discharge, except in an
emergency situation, and this isn't one. So the procedural issue
may well be raised in this case. And then There's
a third issue that I think could be relevant to
which is we don't have a lot of present about
if a court says that there is not caused to
(03:59):
dismiss individual, will the court inequity forced the president to
rehire someone, or will they just say that you were
unlawfully terminated and the government has to pay back pay. Obviously,
in the famous Humphrey's Executive case, which is still limping along,
the court didn't have to decide on the reinstatement issue
(04:19):
because the FTC Commissioner Humphrey had already died and the
estate was carrying on the case. So we don't know
whether there's no's ahead of time, we don't know what
cause means, and we don't know even if there is
no cause, whether the court would require reinstatement or wouldout
be a trenching too directly upon the presidential powers.
Speaker 1 (04:40):
So the fact that he threatened to remove her and
asked her to step down because of this is that Notice,
who knows.
Speaker 4 (04:50):
Did he say I'm worried about the loan applications? What's
your side of the story. I mean, that's what's supposed
to happen for most federal employees. It's not a full hearing,
it's just notice an opportunity to respond. And did he
ever ask you know what about this finding by Pulti,
what do you have to say about it? And will
(05:10):
that be constitutionally required? We don't know what is for employees.
Maybe it's not for officers, but the court will have
to tell us.
Speaker 1 (05:16):
Also, this happened before she became a Fed governor, and
her attorney is saying there's no factual.
Speaker 3 (05:22):
Or legal basis.
Speaker 1 (05:24):
This is all based on a referral letter from the
head of the FHFA, Bill Pulty, who has sent similar
referral letters for Democratic Senator Adam Schiff of California and
New York Attorney General Letitia James, who are on Trump's
enemies list. So there are no findings and it appears
(05:45):
not even an investigation.
Speaker 4 (05:47):
Yeah, I mean, the question then is whether this is
all pretext and whether the court will second guess whether
there is cause and effect. You know, the issue is
just because someone is accused of doing some thing that
may be unethical doesn't mean that they did something that
was unethical, And of course who was to judge that anyway,
So sort of the substance of the case about whether
(06:09):
there's a enough cause to remove the Federal Reserve governor
is you know, up in the air. And my guess
is that if the courts do take that issue up,
the courts would say that you can have cause to
dismiss somebody for conduct unrelated to the conduct of their job,
but you'd have to make some kind of determination whether
(06:32):
or not, given what the government is convinced that she did,
whether that would impair her ability to do her job effectively. So,
you know, this case raises a lot of issues that
have been circling around discharge of federal officers, and we
simply don't know the answers.
Speaker 3 (06:48):
Looking at the.
Speaker 1 (06:49):
Ruling earlier this year where the Supreme Court said it
would shield the Central Bank from the type of at
will removals of board members that they've allowed Trump to
do at least temporary at other independent federal agencies. Do
you think that just stands for the fact that it
has to be for cause, or does it stand for
the Fed is different.
Speaker 4 (07:10):
You could say that President Trump is doing the trial balloon,
and if it goes well and he can get away
with dismissing for a Wiserve governor Cook, then maybe he
can remove Powell because of the overruns in terms of
redecorating and restructuring his buildings, right, I mean that may
be cause as well, So he may be trying this
(07:32):
as a kind of trial boom to see what he
can get away with. On the other hand, it's unclear
what principled way that the Supreme Court could say that
president can't fire the head of the Fed, but they
can fire all other officers in the United States. That
helps the markets, but it doesn't seem to be very
logical either. So we just don't know.
Speaker 1 (07:52):
And has the Supreme Court ever defined what for cause means?
Speaker 4 (07:58):
No, it has never defined it. It is dereliction of
duties is one word that they use. But I think
that it's a small step from dere election of duties
to say, you know, if someone I had a case,
for instance, they had to do with the Ministry of
Law judge who is disciplined for having a fight with
a family member, and the Court's upheld that that's cause.
(08:21):
So it's a small step from dere election of duties
to say, you know, if someone didn't behave well outside
of office, and that casts a cloud upon the integrity
and the ability of the office to do its congressionally
assigned tasks. So again, if the court ever reaches that,
I would think that they would start with the president
on that that you don't want to limit cause just
(08:43):
to what's happened in terms of carrying out the duties
of your office, you'd want to expand it to say
any kind of conduct then that would undermine your ability
in the future to conduct your affairs in an appropriate way.
Speaker 1 (08:54):
Coming up next on the Bloomberg Law Show, I'll continue
this conversation with Professor Harold Krant does sh Cago Kent
College of Law. More on Trump's plans to expand the
use of the military in American cities, and a Trump
appointed federal judge tosses the administration's lawsuit against all the
(09:15):
federal judges in Maryland. I'm June Grosso and you're listening
to Bloomberg. Mister President, do not come to Chicago. President
Trump is threatening to expand his use of the National
Guard to crack down on crime in US cities, and
after deploying the Guard to LA and DC, Chicago seems
(09:37):
to be next on his list.
Speaker 5 (09:39):
When I have some slob like Pritzker criticizing US before
we even go there. I made the statement that next
should be Chicago, because, as you all know, Chicago's a
killing field right now, and they don't acknowledge it, and
they say we don't need freedom freedom. He's a dictator.
He's a dictator. A lot of people are saying, maybe
we like a dictator. I don't like a dictator.
Speaker 1 (09:59):
I'm not a city and state officials condemned Trump's plans
to deploy the National Guard. Mayor Brandon Johnson says the
crime rate in Chicago has been falling for years, and
Governor J. B. Pritzker says they'll take Trump to court
if he tries to send the Guard to Chicago.
Speaker 6 (10:19):
If we are not even in the top twenty five
most dangerous cities, then why are we now being targeted
by the Trump administration for a military occupation. We are
being targeted because of what and who we represent.
Speaker 1 (10:34):
The first thing we're gonna do is take him to
court because it's illegal.
Speaker 2 (10:37):
It's unconstitutional.
Speaker 6 (10:38):
Frankly, it's un American to send troops into an American
city the way that he wants to fight crime.
Speaker 1 (10:45):
There is literally a law on the books that says
he's not allowed to do that I've been talking to
Professor Harold krent Are the Chicago Kent College of Law.
President Trump is threatening to expand his use of the
National Guard crackdown on crime in US cities, and after
DC and LA, Chicago seems to be the next on
(11:08):
his list. Crime statistics for Chicago this year's show at
thirty percent reduction in homicides, thirty five percent reduction in robberies,
nearly forty percent drop in shootings. Chicago is not on
the twenty five most dangerous cities in the US. MEW
what authority does he have to send National Guard in?
Speaker 4 (11:30):
Whatever authority has, it's certainly even less than he had
in LA and less than he had in DC. In LA,
there was a fiction that there was a type of invasion,
if you will, of undocumented into the city until Los Angeles,
which prevented the regular law enforcement authorities in California from
(11:51):
responding adequately. In addition, that fiction could be spun out
that it was difficult to enforce federal law there because
of the presence of so many individuals without documentation, and
that's what necessitated seating in the National Guard. Those theories
can't apply to Chicago. There is no invasion here, and
there is no problem of enforcing federal law here. With DC,
(12:14):
of course, the President serves in essence as a governor
of the National Guard in DC, and so he can
call out and approve the use of the National Guard
for whatever reason, even though there was a decline in
the prime statistics in DC as well. So Chicago's another
step forward, and I think it's a very dangerous step forward. Clearly,
the Framers didn't trust the idea of a standing army.
(12:37):
They were worried about using the army for regular law enforcement.
And there is no authority to use the National Guard
for those ordinary law enforcement mechanisms as well. And I'm
not even trained for it, So we have a specter.
In other words, if the President can use call out
the National Guard for Chicago, he can call out the
(12:58):
National Guard for any reason he wants, and we all
should be very deeply concerned about that, because that is
edging us one step closer to autocratic rule, because it
means that the president can use the National Guard for
his own bidding, for whatever reason he wants to, and
there are no constraints on his use of armed forces.
Speaker 1 (13:19):
How do you think that Trump might try to use
Title ten of the US Code on Armed Services about
the federal deployment of National Guard if there's a rebellion
or danger of a rebellion against the authority of the
government of the United States, or could he.
Speaker 3 (13:37):
Try to invoke the Insurrection Act.
Speaker 4 (13:40):
I mean, there's no insurrection, and I don't think he's
not even articulated a possible insurrection. He did try to
do something like that for Los Angeles, but he hasn't
tried to do that for Chicago, and I think it
would be incredibly far fetched. And I agree that if
there were federal facilities that were in danger, then he
could utilize those powers to protect federal facilities, but that's
(14:01):
not the case. Or if ordinary law enforcement had totally
fallen apart, he could call in for the Guard in
that context as well. We do have a couple of precedents,
right we have the presidents of calling out the National
Guard to help the desegregation efforts in the nineteen fifties.
We have the president of calling out the National Guard
where there was really no general typical law enforcement because
(14:25):
of the riots that tore the streets up in the
nineteen sixties, particularly after M L. K was assassinated. So
we have some presidents, but they're not ordinary law enforcement
as in Chicago. And so this is simply a dramatic
expansion of the ability of a president to call the
National Guard if he in fact does so. And I
(14:45):
think it's something we should be deeply concerned about.
Speaker 1 (14:48):
So Chicago is a sanctuary city, right, So could he say, well,
Chicago is blocking in some way, They're not helping with
the federal immigration enforcement because they're not assisting us in
finding out where people are.
Speaker 4 (15:05):
Yeah, I mean, it could be that the claim here
is that Chicago authorities are frustrating federal law enforcement ability
to apprehend and deport those without documentation. That's not his
claim here. He hasn't stated that, and obviously there's probably
no prove of it anyway, But he hasn't even made
(15:26):
that as a thin veneer to justify his use of troops.
So that would be closer to the LA model for
use of troops as opposed to what he said so
far about Chicago.
Speaker 1 (15:38):
And we're waiting still on Judge Brier's decision about pass
comatatis in the LA case, but the appellate court there
did allow Trump to keep the troops in La.
Speaker 4 (15:52):
They did, and of course it was on a wasn't
the full decision. It was just based upon a stay
of what the lower court had ordered. So even after
a Judge Briar reaches his decision, there will be an
appeal to the Ninth Circuit. But I think it's important.
I mean, I think the governor Pritcer in Illinois is
ready to file suit as well. And this is the
(16:15):
only way, except for a military challenge, that the governor
can contest the legitimacy of what the president is trying
to accomplish.
Speaker 1 (16:24):
Also, the Chicago's mayor called on Trump to release something
like eight hundred million dollars in anti violence grants that
were canceled in April by the Justice Department.
Speaker 4 (16:36):
No, the point is that, you know, if the president
wants Chicago or Los Angeles to enhance their crime fighting ability,
then why did it cancel the grants? And it should
allow for these communities to hire more police, to get
better weapons or even surveillance mechanisms in order to fight crime.
(16:58):
And so putting this on the National Guard, who are
not trained for that is probably counterintuitive and may result
in worse kind of law enforcement than otherwise would take place.
And never thing to note is that the president is
selected Los Angeles, d C. And Chicago, which are all
clearly Democratic strongholds, and he's making no mention of cities
(17:21):
like Saint Louis, New Orleans, and Memphis, which have crime
in excess of those in DC and Chicago, but happen
to be headed by Republican governors. So that again will
go give a strong flavor of what the president is
trying to do is just sort of show his might
in the face of states and cities which would otherwise
(17:45):
object to his governance style or in fact the substance
of his governing itself.
Speaker 1 (17:51):
And a judge's rule last week that the Trump administration
can't deny funding to Chicago, La, Denver and cities because
of policies that limit cooperation with federal immigration efforts because
they're sanctuary cities or counties.
Speaker 4 (18:08):
And this is a reprise of litigation back in the
first Trump administration when he tried to remove funding from
the so called sanctuary cities. And simply, you can't do
that unless Congress gives the green light, and Congress has
not allowed police grants, for instance, in this case, to
be predicated on the police agreeing to be helpful to
(18:31):
ICE agents in rounding up those without documentation. Congress could
make that. It would be an interesting policy call. Congress
could make it, but it hasn't, and that's what the
courts have held.
Speaker 2 (18:42):
You know.
Speaker 4 (18:42):
And to go back to the National Guard issue, I'm
hoping this is just a headline grabber, kind of in
your face moved by the President. But if he really
sends troops here, then he can send troops for any
reason at all, including what find gim most is around
the midterms. You don't want to give the president idea
(19:05):
that he can frighten people or deter them from voting
by sending National guards to the polling places in various
jurisdictions during the midterms. And so that's what frightens me
the most. And I think it's important then to fight
against the use of the National Guard for sort of
personal political reasons, as he's doing in Chicago.
Speaker 1 (19:27):
And yesterday Trump also signed an executive order establishing specialized
units and the National Guard to address crime in cities,
though it's unclear how the order will work in practice.
Speaker 3 (19:42):
What's your take on that.
Speaker 4 (19:43):
Well, I think that viewed charitably, the executive word is
consistent with the Constitution. It's saying, we want to have
special training if there is a moment, such as with
George Floyd or other of writing, if local law enforcement
cannot exercise their authority to keep peace within the cities,
(20:06):
that we'll talk like a ready force just in case
it's needed by itself. I think the president could probably
do that. The only question is when he can deploy
this especially trained force. Can he do it again during
the midterms. Let's hope not, But just the training by
itself seems to me to be within his ability to
(20:28):
coordinate as commander in chief.
Speaker 1 (20:30):
There was a lot of legal news today. Let's turn
out to another development. A federal judge throughout the Trump
administration's lawsuit against Maryland's entire federal bench that means every
federal district judge in Maryland.
Speaker 3 (20:46):
This was a suit over.
Speaker 1 (20:47):
In order by the chief Judge of the Maryland District
Court that stopped the immediate deportation of migrants challenging their
removals for two days. And the just Department had said
the automatic pause impeded the president's authority to enforce immigration laws,
and it sought a court order blocking it and federal
(21:10):
judge Thomas Cullen, a Trump appoint d, in an emphatic
ruling that underscored the extraordinary nature of the suit, called
the suit potentially calamitous, and he also criticized the administration's
attacks on the judiciary, highlighting in a footnote that White
House officials in recent months had described judges as rogue, unhinged,
(21:35):
and crooked, among other epithets.
Speaker 4 (21:37):
So what was I think interesting about the opinion is
that part of it is predicated on the unity of
federal judges as well as the clerk of the court.
That may be a little extreme, you know, in terms
of the future. But what he also added was that
in this context, you would never have an injunction, that
(21:59):
the courts would never enjoying courts from enforcing an order
that's simply unheard of in the courts of equity and
is inconsistent with norms of separation of powers. And so
that in essence, the Department of Justice and the Homeland
Security didn't have standing to bring the case, and that
(22:19):
became much an easier sell because indeed, as we discussed earlier,
the government could have easily challenged the standing order in
a different way by raising it on appeal and the
case that it might lose in terms of the immigration
matter before that court. So I don't know all the
(22:40):
reasoning will be upheld by the Fourth Circuit, but I
think the underlying decision to dismiss this poorly crafted lawsuit
will be upheld by the Fourth Circuit.
Speaker 1 (22:50):
It was hard to see why the Justice Department brought
this suit because it is unprecedented, and I use that
word a lot lately. And the Trump administration has already
filed a notice of appeal. So more to come. Thanks
so much, Hal. That's Professor Harold Krent of the Chicago
Kent College of Law, coming up next on the Bloomberg
(23:12):
Law Show. Who's in charge of the New Jersey US
Attorney's Office? I'm June Grosso and you're listening to Bloomberg.
The Trump administration has tried various maneuvers to keep Alina Habba,
Trump's former personal attorney, at the top of the US
Attorney's office in New Jersey, but a federal judge has
(23:33):
ruled that Habba's appointment was not lawful and disqualified her
from participating in any ongoing cases.
Speaker 2 (23:40):
I am the pick of the president.
Speaker 1 (23:42):
I am the pick of Pam BONDI our attorney General,
and I will serve this country. The continuing maneuvering and
confusion over Habba's role has led to federal criminal cases
in New Jersey basically coming to a standstill because no
one knows who's in charge, and the judge's decision could
mean that any actions taken under Habba since July first
(24:06):
are open to challenges by defendants. It could also reverberate
across the country because the Justice Department has been using
similar complex maneuvers to extend the tenures of other Trump
loyalists as interim US attorneys in California, Arizona, New Mexico,
and New York. Joining me is Anne Joseph O'Connell, a
(24:27):
professor at Stanford Law School. Federal Judge Matthew Brand said
that Alina Habba is not lawfully holding the office of
the United States Attorney and has been in the position
without legal authority since July first. It gets quite complicated,
and so please take us through it.
Speaker 7 (24:46):
It is a lengthy decision with several rulings. Let's march
through the opinion to see how the judge made various rulings.
So the first thing the judge did was to decide
whether Miss Haba was lawfully serving under the specific interim
us Attorney provision twenty eight Usc. Five forty six. And
(25:07):
when he looked at that provision, he determined that the
one hundred and twenty day time limit started when the
first appointment was made under the statute, So that first
appointment was not actually Miss Haba, It was mister Giodano,
and his appointment started, and the one hundred and twenty
(25:27):
days ran from that and ended, according to the judge,
on July first. So although Miss Haba had more days
if you were counting to one hundred twenty from when
she started, the judge held that was not the right
way to consider the clock. So that was the first
decision that starting on July first, miss Haba was not
(25:48):
lawfully serving under section five forty six. Now there was
a ruling kind of connected about whether the government could
turn to the Vacancies Act, because the criminal defendants at
issue argued, well, if Miss Hobbo was not lawfully serving
under five forty six, the government could not turn to
the Federal Vacancy's Reform Act, which provides a way of
(26:09):
getting in temporary acting officials, not just for US attorneys,
but a whole range of positions, and the criminal defendants
argued that actually the Vacancies Act did not apply to
US attorneys because of five forty six, and this was
the one place the judge actually ruled for the government.
The judge said that five forty six was not the
only mechanism for temporary service for US Attorney's spots. He
(26:34):
said that the Federal Vacancy's Reform Act was available now.
That then turns to the next ruling. He said that
Miss Habo was not lawfully serving under the Federal Vacancy's
Reform Act, so the Act applied, but she was not
lawfully serving, and the primary reason for that ruling was that,
as he interpreted Section three three four five of the
(26:55):
Federal Vacancy's Reform Act, you cannot have a first assist
to the vacant Senate confirmed rule be named after the
vacancy in the position, And for the judge, the vacancy
is not the end of interim service under five forty six.
It's the end of when the last Senate confirmed US
(27:16):
attorney left, and so ms Haba was put into a
first assistant slot after the prior confirmed US Attorney left
and the judge held that was not permitted under the
Federal Vacancy's reformat.
Speaker 3 (27:30):
What about her delegating to others?
Speaker 7 (27:32):
There was one more ruling about if she was not
serving under the Federal Vacancy's Reformact, could she perform the
job through what is known as delegation? And that was
the final ruling by the judge in the seventy seven
page opinion, and he held that under another provision of
the Vacancy's Act three three four seven, that Miss Habba
(27:53):
could not perform the role of the US Attorney without
the acting title and through delegation. He said that also
was not permitted.
Speaker 1 (28:02):
Judge Brawn was concerned about allowing stacked interim appointments that
would allow the administration to effectively avoid the confirmation process
and do away with the Senate's advice and consent.
Speaker 7 (28:18):
Yes, so this was about his ruling on twenty eight USC.
Five forty six. This is where you get what are
known as interim US attorneys. There's this one hundred and
twenty day time limit, and then after that the district
Court may choose someone to serve in the role until
a Senate confirmed person comes into the position, and the
government argued that it could make successive one hundred and
(28:42):
nineteen day appointments so that it never hit the one
hundred and twentieth day, where the district Court would then
have a role, and the judge rejected that. The judge said, well,
if you can do that, you could have one hundred
and nineteen days on one appointment, in one hundred nineteen
days on another appointment and keep going. And indeed, the
judge said, you could have a longer term for an
interim US attorney than you could for a Senate confirmed
(29:06):
US attorney, because there's a statutory provision that says that
Senate confirmed US attorneys have a four year term. Of course,
they're at will leaders, so the president can fire them
before that, but they can't serve longer than four years.
And he said, under the government's interpretation of five forty six,
you could actually get in someone for longer than four years.
Speaker 1 (29:24):
Do you think that determination is correct?
Speaker 3 (29:27):
I do.
Speaker 7 (29:28):
The judge relied primarily on the text of five forty
six in making its ruling. Looking at appointment, there's discussion
of definite and indefinite articles. I think the text is
a bit more ambiguous. I would read the text to
say that it is possible that you could have a
successive one hundred and twenty day or one hundred nineteen
(29:50):
day appointments. But the purpose, right, The purpose when Congress
put these time limits back in in two thousand and seven,
was clear right. They wanted restrict on the Attorney general's
powers to name inter remuus attorneys. So for me, a
text plus a purpose argument would say, yes, you can't
just have successive one hundred and nineteen day appointments. But
(30:12):
the judge did talk a little bit about purpose and
legislative history, and I guess I would wait the purpose
and legislative history more than the judge did and acknowledge
that the text is more ambiguous than the ruling does.
Speaker 1 (30:27):
But you would come out at the same point as
the judge.
Speaker 7 (30:30):
Yeah, that you could have one one hundred and twenty
day appointment, and then the district court could name someone,
or you could turn to the federal vacancy's re format
New Jersey.
Speaker 1 (30:42):
You know, criminal cases are at a standstill. Arraignments have
been delayed, hearings, plea agreements, grand jury proceedings, even a
trial who is in charge now the Deputy Attorney General,
Todd Blanche, the number two at the Justice Department, has
been put his name on some of the New Jersey
(31:02):
Office's work in the last couple of days. I mean,
does that solve the problem who's in charge?
Speaker 7 (31:09):
Well, it's just the problem temporarily. I mean, if mister
Blanche is a fixing his signature, that would be okay
because under the various statutory provisions, the Deputy Attorney General
has the same power as the Attorney General, who has
power to do anything that a US attorney might do,
so that would be okay. I think they need to
(31:30):
sort all of this out. I mean, the judge did
stay his own ruling. There was no request from the
government to stay it. He stayed in himself until it
gets sorted out on appeal. Right, this is going to
get sorted out on appeal one way or the other.
And the government I think has a decent chance of
winning on appeal. But obviously if the government does not
win on appeal, they don't want to create more problems
(31:51):
for themselves in the intervening period.
Speaker 1 (31:53):
And didn't the judge say that HABA can't even supervise
And I take it that what she has been doing
is supervising because she has no experience as a prosecutor.
Speaker 7 (32:04):
Well, it's a little unclear, right, She's not supposed to
be carrying out the role of the US attorney. So
he does allow for a special attorney to the Attorney
General to do some tasks, you know, that would be
helpful in the US Attorney's office. And indeed, we can
get to this whole point about delegation, you know, actions,
(32:26):
whether they could be void but could be ratified later.
So there is some room for her to act. But
it's going to create a lot of headaches until or
unless the Appeals Court reverses.
Speaker 1 (32:40):
The Trump administration has done similar maneuvering with other US
Attorney's offices in Los Angeles, Nevada, New Mexico, and upstate
New York, where they've tried to sidestep or override the
Senate confirmation and the judicial appointment process. Does this ruling
(33:01):
implicate those US attorneys as well?
Speaker 7 (33:04):
Yeah, So anyone who is serving as an acting US
attorney because they were named to the first assistant role
under this judge's ruling, if they were named the first
assistant rule after the departure of the last Senate confirmed
US attorney who almost certainly was a Biden administration pick
in many cases, right, they left before January twentieth at noon.
(33:27):
Those people, under this reasoning, would not be properly serving
under the Vacancies Act.
Speaker 1 (33:32):
We can anticipate that defendants and those jurisdictions are going
to file suits as well, challenging the authority of the
US attorneys.
Speaker 7 (33:41):
Yes, and it's not just limited to US attorneys. The
ruling about the Federal Vacancies Act which this judge made
says that any first assistant who is serving as the
default acting official under the Federal Vacancy's Reform Act has
to have been in place before the departure of the
last Senate confirmed person in a cup position. Well, that
covers US attorneys, but it covers hundreds of more positions.
(34:05):
So all of those first assistants you know, now leading
that organization whatever federal agency in an acting capacity, those
people too, are serving in violation.
Speaker 1 (34:15):
So that would have really broad implications.
Speaker 7 (34:17):
Yeah, So the first thing we were talking about, you know,
these successive one hundred and nineteen day appointments, that's only
about US attorneys, right, that's you know about ninety something positions.
The second ruling about the timing of the first assistant
that applies to hundreds of positions. And I should note
that for both of these rulings, actually the one specific
to US attorneys on five forty six and the timing
(34:40):
of the first assistant, this is the first judicial ruling
on these issues anywhere, right, So we don't have a
ruling about successive US attorney in the interim capacity under
five forty six. There's sort of language in a footnote
in a much older case which that is actually permitted,
(35:01):
but we've never had a ruling from any court saying
that successive interim US attorney positions are prohibited under five
forty six, and the much broader ruling that the first
assistant has to be in place prior to the departure
of the last confirmed person. This judge is also the
first to make that conclusion, and.
Speaker 1 (35:19):
The Trump administration has already said they're appealing the decision.
So the Third Circuit, I guess, will be the first
circuit to rule on this as well.
Speaker 7 (35:28):
That's right. And then there's another ruling that has implications
far beyond US attorneys. So once the judge decided that
Miss Habba was not lawfully serving under the Federal Vacancy's
Reform Act. He had to turn to the fallback argument
of the government, which was that it's okay if she
doesn't have the formal acting title under the Federal Vacancy's
(35:50):
Reform Act, Miss Bondi has named her under section five
fifteen in other provisions regarding the Department of Justice as
a special attorney to the Attorney General, and in that rule,
according to Miss Bondi and the government, miss Haba could
carry out all the functions, all the non exclusive functions
of the US Attorney position through delegation. And the judge
(36:15):
rule that this is not permissible, and this does go
against other court rulings. So the Ninth Circuit and the
Court of Appeals for the Federal Circuit have found that
under a slightly different provision but that also talks about
functions and duties three three, four, eight of the Vacancies Act,
that the government can delegate non exclusive duties down to
(36:38):
someone and there's no problem there. And this is widely
done in the government, in large part because of a
broken appointment system. There are many Senate confirmed roles of
assistance secretary and the like kind of lower levels that
are delegated down and this ruling would prevent.
Speaker 3 (36:56):
That any final thoughts.
Speaker 7 (36:59):
This ruling by Chief Judge Brand did not actually make
any constitutional decision because everything could be resolved on statutory grounds.
There was no need to make constitutional rulings. So that's
one thing. I think the Constitution was in the background
as he was interpreting statutes and he says that, but
(37:19):
there are no constitutional rulings in this decision. The second
thing that struck me was about when the vacancy occurred, right,
because we have all these clocks. Right, we had this
discussion about a clock on the Interim Service under five
forty six, and then we have a clock under the
Federal Vacancy's REFORMA Act, and the Office of Legal Counsel
(37:42):
in an opinion in two thousand and three, held that
these clocks run separately. But what's interesting to me is
that the judge in a footnote, actually footnote one hundred
and fifty three, just to give a flavor of how
complicated the decision is, he says that he dates the
vacancy for the purposes of the Federal Vacancy Reform Act,
as not when the interim service ended. Instead, it's when
(38:06):
the last Senate confirmed person left. And this matters to
the Vacancy's Act clocks. So that means that we're counting right.
Either the three hundred days at the start of an
administration were counting back to January twentieth. So even if
the administration found someone who did qualify under the reasoning
(38:28):
in this opinion, for example, they were Senate confirmed to
another job, right, that's section three three four.
Speaker 5 (38:33):
Five A two.
Speaker 7 (38:34):
Right, you could make Todd Blanche the acting US Attorney
for the District of New Jersey under the Federal Vacancy's
Reform Act, and this judge would not have a problem
with that. But the time clock for mister Blanche to
use the title Acting US Attorney for the District of
New Jersey dates back from when the last Senate confirmed
person left, and it kind of gets rolled over with
(38:56):
the new administration, so from January twentieth, So it's actually
not that much time even if you actually got someone
who met the requirements under the Federal Vacancies Reform Act.
And then the last thing I'll say is there is
this complex reasoning at the end about what is void
and what can be ratified and Chief Judge Brand is
(39:19):
trying to distinguish this case from the Federal Circuit case
and the Ninth Circuit case by saying those cases were
about kind of what could be ratified under section three
three four eight, and he's focusing instead on section three
three four seven, which talks about how the Vacancies Act
(39:40):
is exclusive with regard to functions and duties of covered positions.
And so he says, well, Ms Haba can't do all
of this stuff under three three four seven, but I'm
going to acknowledge that it seems like anything she could
try to do is non exclusive, so it could ratified
(40:01):
under three three four eight by you know, the Attorney
General for example, someone higher up. And so this gets
into a little bit of weirdness where the judge at
the end is saying, well, she can't do it, but
if she does it, someone else could ratify it. And
so I think this issue about three three four seven
(40:21):
and three three four eight. I think that's really going
to be the heart of the government's appeal, along with
this idea of the timing of the first assistant.
Speaker 1 (40:29):
Thanks so much, Ed for taking us through this complex area.
That's Professor and Joseph O'Connell of Stanford Law School. 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 Podcast. You can find them on Apple Podcasts, Spotify,
and at www dot Bloomberg dot com slash podcast Slash Law,
(40:52):
And remember to tune into The Bloomberg Law Show every
weeknight at ten pm Wall Street Time. I'm June Grosso
and you're listening to Bloomberg.
Speaker 3 (41:06):
Hmm
You're listening to Bloomberg Law with June Grosso from Bloomberg Radio.
In a significant escalation of his battle with the Fed,
President Trump is moving to fire Lisa Cook, the first
black woman to serve on the Federal Board of Governors.
In a letter posted on truth Social late Monday, Trump
(00:24):
said he had quote sufficient cause to fire Cook, citing
allegations that she submitted fraudulent information on mortgage applications, although
she's not been charged with a crime. He reiterated his
position in the Oval office today, it.
Speaker 2 (00:40):
Seems to have had an infraction, and she can't have
an infraction, especially that infraction, because she's in charge of,
if you think about it, mortgages, and we need people
that are one hundred percent above board, and it doesn't
seem like she wish.
Speaker 1 (00:54):
Cook says she won't step down. Her lawyer, Abby Lowell,
says they'll sue, and that Trump's attack to fire her,
based solely on a referral letter, lacks any factual or
legal basis. Joining me is constitutional law expert Harold Krent,
a professor at the Chicago Kent College of Law.
Speaker 3 (01:13):
Can we assume that the.
Speaker 1 (01:15):
President is giving in on one point that he needs
cause to fire Cook because he said and a letter
posted on truth Social that he had sufficient cause to
fire her.
Speaker 4 (01:27):
And that's the surprise, is that the president has deviated
from his earlier line, which said that he can fire
anybody he wants to for any reason whatsoever. And by
inserting in the letter that he had caused to fire Cook,
that's suggesting the type of admission that he does need
to have cause to fire her. As a governor of
(01:48):
the Federal Reserve. He could always abandon that later in court,
but at least at this point, this is an unusual
claim for him, that he does need to have caused.
Speaker 3 (01:56):
This all goes.
Speaker 1 (01:57):
Back to FHFA Director Bill Poulty alleged that she lied
on loan applications for two properties, claiming she would use
each property as her primary residence. And Trump wrote in
a letter sent to Cook yesterday, at minimum, the conduct
that issue exhibits the sort of gross negligence in financial
(02:21):
transactions that calls into question your experience and trustworthiness as
a financial regulator.
Speaker 3 (02:29):
Is that cause?
Speaker 4 (02:30):
So this discharge of raises three issues in my mind anyway,
and the first is the one you've articulated, what is
caused and there is a dearth of precedent at the
federal level as to what is caused to justify dismissal
of someone who's otherwise protected in the government's employee for instance,
is there a reason to fire someone for something they
(02:52):
do outside their job, something they did in terms of
they got into a fight at a bar? Is that cause?
What happened here is at least akin to that. It's
like something that happened in our private life, not with
respect to her job. You know, that's one issue, but
there are others. You know, can a judge second guess
a presidence determination that the individual is not fit for
(03:14):
the office. That's a question of what kind of difference
the courts will give to the determination of cause. And
then there's the initial question of whether the president had
to give any kind of notice and ability to respond
before the discharge, if sort of being federal governor cooked
this was a question of an employee. The law is
(03:36):
clear that the employer needs to give notice an opportunity
to be heard prior to the discharge, except in an
emergency situation, and this isn't one. So the procedural issue
may well be raised in this case. And then There's
a third issue that I think could be relevant to
which is we don't have a lot of present about
if a court says that there is not caused to
(03:59):
dismiss individual, will the court inequity forced the president to
rehire someone, or will they just say that you were
unlawfully terminated and the government has to pay back pay. Obviously,
in the famous Humphrey's Executive case, which is still limping along,
the court didn't have to decide on the reinstatement issue
(04:19):
because the FTC Commissioner Humphrey had already died and the
estate was carrying on the case. So we don't know
whether there's no's ahead of time, we don't know what
cause means, and we don't know even if there is
no cause, whether the court would require reinstatement or wouldout
be a trenching too directly upon the presidential powers.
Speaker 1 (04:40):
So the fact that he threatened to remove her and
asked her to step down because of this is that Notice,
who knows.
Speaker 4 (04:50):
Did he say I'm worried about the loan applications? What's
your side of the story. I mean, that's what's supposed
to happen for most federal employees. It's not a full hearing,
it's just notice an opportunity to respond. And did he
ever ask you know what about this finding by Pulti,
what do you have to say about it? And will
(05:10):
that be constitutionally required? We don't know what is for employees.
Maybe it's not for officers, but the court will have
to tell us.
Speaker 1 (05:16):
Also, this happened before she became a Fed governor, and
her attorney is saying there's no factual.
Speaker 3 (05:22):
Or legal basis.
Speaker 1 (05:24):
This is all based on a referral letter from the
head of the FHFA, Bill Pulty, who has sent similar
referral letters for Democratic Senator Adam Schiff of California and
New York Attorney General Letitia James, who are on Trump's
enemies list. So there are no findings and it appears
(05:45):
not even an investigation.
Speaker 4 (05:47):
Yeah, I mean, the question then is whether this is
all pretext and whether the court will second guess whether
there is cause and effect. You know, the issue is
just because someone is accused of doing some thing that
may be unethical doesn't mean that they did something that
was unethical, And of course who was to judge that anyway,
So sort of the substance of the case about whether
(06:09):
there's a enough cause to remove the Federal Reserve governor
is you know, up in the air. And my guess
is that if the courts do take that issue up,
the courts would say that you can have cause to
dismiss somebody for conduct unrelated to the conduct of their job,
but you'd have to make some kind of determination whether
(06:32):
or not, given what the government is convinced that she did,
whether that would impair her ability to do her job effectively. So,
you know, this case raises a lot of issues that
have been circling around discharge of federal officers, and we
simply don't know the answers.
Speaker 3 (06:48):
Looking at the.
Speaker 1 (06:49):
Ruling earlier this year where the Supreme Court said it
would shield the Central Bank from the type of at
will removals of board members that they've allowed Trump to
do at least temporary at other independent federal agencies. Do
you think that just stands for the fact that it
has to be for cause, or does it stand for
the Fed is different.
Speaker 4 (07:10):
You could say that President Trump is doing the trial balloon,
and if it goes well and he can get away
with dismissing for a Wiserve governor Cook, then maybe he
can remove Powell because of the overruns in terms of
redecorating and restructuring his buildings, right, I mean that may
be cause as well, So he may be trying this
(07:32):
as a kind of trial boom to see what he
can get away with. On the other hand, it's unclear
what principled way that the Supreme Court could say that
president can't fire the head of the Fed, but they
can fire all other officers in the United States. That
helps the markets, but it doesn't seem to be very
logical either. So we just don't know.
Speaker 1 (07:52):
And has the Supreme Court ever defined what for cause means?
Speaker 4 (07:58):
No, it has never defined it. It is dereliction of
duties is one word that they use. But I think
that it's a small step from dere election of duties
to say, you know, if someone I had a case,
for instance, they had to do with the Ministry of
Law judge who is disciplined for having a fight with
a family member, and the Court's upheld that that's cause.
(08:21):
So it's a small step from dere election of duties
to say, you know, if someone didn't behave well outside
of office, and that casts a cloud upon the integrity
and the ability of the office to do its congressionally
assigned tasks. So again, if the court ever reaches that,
I would think that they would start with the president
on that that you don't want to limit cause just
(08:43):
to what's happened in terms of carrying out the duties
of your office, you'd want to expand it to say
any kind of conduct then that would undermine your ability
in the future to conduct your affairs in an appropriate way.
Speaker 1 (08:54):
Coming up next on the Bloomberg Law Show, I'll continue
this conversation with Professor Harold Krant does sh Cago Kent
College of Law. More on Trump's plans to expand the
use of the military in American cities, and a Trump
appointed federal judge tosses the administration's lawsuit against all the
(09:15):
federal judges in Maryland. I'm June Grosso and you're listening
to Bloomberg. Mister President, do not come to Chicago. President
Trump is threatening to expand his use of the National
Guard to crack down on crime in US cities, and
after deploying the Guard to LA and DC, Chicago seems
(09:37):
to be next on his list.
Speaker 5 (09:39):
When I have some slob like Pritzker criticizing US before
we even go there. I made the statement that next
should be Chicago, because, as you all know, Chicago's a
killing field right now, and they don't acknowledge it, and
they say we don't need freedom freedom. He's a dictator.
He's a dictator. A lot of people are saying, maybe
we like a dictator. I don't like a dictator.
Speaker 1 (09:59):
I'm not a city and state officials condemned Trump's plans
to deploy the National Guard. Mayor Brandon Johnson says the
crime rate in Chicago has been falling for years, and
Governor J. B. Pritzker says they'll take Trump to court
if he tries to send the Guard to Chicago.
Speaker 6 (10:19):
If we are not even in the top twenty five
most dangerous cities, then why are we now being targeted
by the Trump administration for a military occupation. We are
being targeted because of what and who we represent.
Speaker 1 (10:34):
The first thing we're gonna do is take him to
court because it's illegal.
Speaker 2 (10:37):
It's unconstitutional.
Speaker 6 (10:38):
Frankly, it's un American to send troops into an American
city the way that he wants to fight crime.
Speaker 1 (10:45):
There is literally a law on the books that says
he's not allowed to do that I've been talking to
Professor Harold krent Are the Chicago Kent College of Law.
President Trump is threatening to expand his use of the
National Guard crackdown on crime in US cities, and after
DC and LA, Chicago seems to be the next on
(11:08):
his list. Crime statistics for Chicago this year's show at
thirty percent reduction in homicides, thirty five percent reduction in robberies,
nearly forty percent drop in shootings. Chicago is not on
the twenty five most dangerous cities in the US. MEW
what authority does he have to send National Guard in?
Speaker 4 (11:30):
Whatever authority has, it's certainly even less than he had
in LA and less than he had in DC. In LA,
there was a fiction that there was a type of invasion,
if you will, of undocumented into the city until Los Angeles,
which prevented the regular law enforcement authorities in California from
(11:51):
responding adequately. In addition, that fiction could be spun out
that it was difficult to enforce federal law there because
of the presence of so many individuals without documentation, and
that's what necessitated seating in the National Guard. Those theories
can't apply to Chicago. There is no invasion here, and
there is no problem of enforcing federal law here. With DC,
(12:14):
of course, the President serves in essence as a governor
of the National Guard in DC, and so he can
call out and approve the use of the National Guard
for whatever reason, even though there was a decline in
the prime statistics in DC as well. So Chicago's another
step forward, and I think it's a very dangerous step forward. Clearly,
the Framers didn't trust the idea of a standing army.
(12:37):
They were worried about using the army for regular law enforcement.
And there is no authority to use the National Guard
for those ordinary law enforcement mechanisms as well. And I'm
not even trained for it, So we have a specter.
In other words, if the President can use call out
the National Guard for Chicago, he can call out the
(12:58):
National Guard for any reason he wants, and we all
should be very deeply concerned about that, because that is
edging us one step closer to autocratic rule, because it
means that the president can use the National Guard for
his own bidding, for whatever reason he wants to, and
there are no constraints on his use of armed forces.
Speaker 1 (13:19):
How do you think that Trump might try to use
Title ten of the US Code on Armed Services about
the federal deployment of National Guard if there's a rebellion
or danger of a rebellion against the authority of the
government of the United States, or could he.
Speaker 3 (13:37):
Try to invoke the Insurrection Act.
Speaker 4 (13:40):
I mean, there's no insurrection, and I don't think he's
not even articulated a possible insurrection. He did try to
do something like that for Los Angeles, but he hasn't
tried to do that for Chicago, and I think it
would be incredibly far fetched. And I agree that if
there were federal facilities that were in danger, then he
could utilize those powers to protect federal facilities, but that's
(14:01):
not the case. Or if ordinary law enforcement had totally
fallen apart, he could call in for the Guard in
that context as well. We do have a couple of precedents,
right we have the presidents of calling out the National
Guard to help the desegregation efforts in the nineteen fifties.
We have the president of calling out the National Guard
where there was really no general typical law enforcement because
(14:25):
of the riots that tore the streets up in the
nineteen sixties, particularly after M L. K was assassinated. So
we have some presidents, but they're not ordinary law enforcement
as in Chicago. And so this is simply a dramatic
expansion of the ability of a president to call the
National Guard if he in fact does so. And I
(14:45):
think it's something we should be deeply concerned about.
Speaker 1 (14:48):
So Chicago is a sanctuary city, right, So could he say, well,
Chicago is blocking in some way, They're not helping with
the federal immigration enforcement because they're not assisting us in
finding out where people are.
Speaker 4 (15:05):
Yeah, I mean, it could be that the claim here
is that Chicago authorities are frustrating federal law enforcement ability
to apprehend and deport those without documentation. That's not his
claim here. He hasn't stated that, and obviously there's probably
no prove of it anyway, But he hasn't even made
(15:26):
that as a thin veneer to justify his use of troops.
So that would be closer to the LA model for
use of troops as opposed to what he said so
far about Chicago.
Speaker 1 (15:38):
And we're waiting still on Judge Brier's decision about pass
comatatis in the LA case, but the appellate court there
did allow Trump to keep the troops in La.
Speaker 4 (15:52):
They did, and of course it was on a wasn't
the full decision. It was just based upon a stay
of what the lower court had ordered. So even after
a Judge Briar reaches his decision, there will be an
appeal to the Ninth Circuit. But I think it's important.
I mean, I think the governor Pritcer in Illinois is
ready to file suit as well. And this is the
(16:15):
only way, except for a military challenge, that the governor
can contest the legitimacy of what the president is trying
to accomplish.
Speaker 1 (16:24):
Also, the Chicago's mayor called on Trump to release something
like eight hundred million dollars in anti violence grants that
were canceled in April by the Justice Department.
Speaker 4 (16:36):
No, the point is that, you know, if the president
wants Chicago or Los Angeles to enhance their crime fighting ability,
then why did it cancel the grants? And it should
allow for these communities to hire more police, to get
better weapons or even surveillance mechanisms in order to fight crime.
(16:58):
And so putting this on the National Guard, who are
not trained for that is probably counterintuitive and may result
in worse kind of law enforcement than otherwise would take place.
And never thing to note is that the president is
selected Los Angeles, d C. And Chicago, which are all
clearly Democratic strongholds, and he's making no mention of cities
(17:21):
like Saint Louis, New Orleans, and Memphis, which have crime
in excess of those in DC and Chicago, but happen
to be headed by Republican governors. So that again will
go give a strong flavor of what the president is
trying to do is just sort of show his might
in the face of states and cities which would otherwise
(17:45):
object to his governance style or in fact the substance
of his governing itself.
Speaker 1 (17:51):
And a judge's rule last week that the Trump administration
can't deny funding to Chicago, La, Denver and cities because
of policies that limit cooperation with federal immigration efforts because
they're sanctuary cities or counties.
Speaker 4 (18:08):
And this is a reprise of litigation back in the
first Trump administration when he tried to remove funding from
the so called sanctuary cities. And simply, you can't do
that unless Congress gives the green light, and Congress has
not allowed police grants, for instance, in this case, to
be predicated on the police agreeing to be helpful to
(18:31):
ICE agents in rounding up those without documentation. Congress could
make that. It would be an interesting policy call. Congress
could make it, but it hasn't, and that's what the
courts have held.
Speaker 2 (18:42):
You know.
Speaker 4 (18:42):
And to go back to the National Guard issue, I'm
hoping this is just a headline grabber, kind of in
your face moved by the President. But if he really
sends troops here, then he can send troops for any
reason at all, including what find gim most is around
the midterms. You don't want to give the president idea
(19:05):
that he can frighten people or deter them from voting
by sending National guards to the polling places in various
jurisdictions during the midterms. And so that's what frightens me
the most. And I think it's important then to fight
against the use of the National Guard for sort of
personal political reasons, as he's doing in Chicago.
Speaker 1 (19:27):
And yesterday Trump also signed an executive order establishing specialized
units and the National Guard to address crime in cities,
though it's unclear how the order will work in practice.
Speaker 3 (19:42):
What's your take on that.
Speaker 4 (19:43):
Well, I think that viewed charitably, the executive word is
consistent with the Constitution. It's saying, we want to have
special training if there is a moment, such as with
George Floyd or other of writing, if local law enforcement
cannot exercise their authority to keep peace within the cities,
(20:06):
that we'll talk like a ready force just in case
it's needed by itself. I think the president could probably
do that. The only question is when he can deploy
this especially trained force. Can he do it again during
the midterms. Let's hope not, But just the training by
itself seems to me to be within his ability to
(20:28):
coordinate as commander in chief.
Speaker 1 (20:30):
There was a lot of legal news today. Let's turn
out to another development. A federal judge throughout the Trump
administration's lawsuit against Maryland's entire federal bench that means every
federal district judge in Maryland.
Speaker 3 (20:46):
This was a suit over.
Speaker 1 (20:47):
In order by the chief Judge of the Maryland District
Court that stopped the immediate deportation of migrants challenging their
removals for two days. And the just Department had said
the automatic pause impeded the president's authority to enforce immigration laws,
and it sought a court order blocking it and federal
(21:10):
judge Thomas Cullen, a Trump appoint d, in an emphatic
ruling that underscored the extraordinary nature of the suit, called
the suit potentially calamitous, and he also criticized the administration's
attacks on the judiciary, highlighting in a footnote that White
House officials in recent months had described judges as rogue, unhinged,
(21:35):
and crooked, among other epithets.
Speaker 4 (21:37):
So what was I think interesting about the opinion is
that part of it is predicated on the unity of
federal judges as well as the clerk of the court.
That may be a little extreme, you know, in terms
of the future. But what he also added was that
in this context, you would never have an injunction, that
(21:59):
the courts would never enjoying courts from enforcing an order
that's simply unheard of in the courts of equity and
is inconsistent with norms of separation of powers. And so
that in essence, the Department of Justice and the Homeland
Security didn't have standing to bring the case, and that
(22:19):
became much an easier sell because indeed, as we discussed earlier,
the government could have easily challenged the standing order in
a different way by raising it on appeal and the
case that it might lose in terms of the immigration
matter before that court. So I don't know all the
(22:40):
reasoning will be upheld by the Fourth Circuit, but I
think the underlying decision to dismiss this poorly crafted lawsuit
will be upheld by the Fourth Circuit.
Speaker 1 (22:50):
It was hard to see why the Justice Department brought
this suit because it is unprecedented, and I use that
word a lot lately. And the Trump administration has already
filed a notice of appeal. So more to come. Thanks
so much, Hal. That's Professor Harold Krent of the Chicago
Kent College of Law, coming up next on the Bloomberg
(23:12):
Law Show. Who's in charge of the New Jersey US
Attorney's Office? I'm June Grosso and you're listening to Bloomberg.
The Trump administration has tried various maneuvers to keep Alina Habba,
Trump's former personal attorney, at the top of the US
Attorney's office in New Jersey, but a federal judge has
(23:33):
ruled that Habba's appointment was not lawful and disqualified her
from participating in any ongoing cases.
Speaker 2 (23:40):
I am the pick of the president.
Speaker 1 (23:42):
I am the pick of Pam BONDI our attorney General,
and I will serve this country. The continuing maneuvering and
confusion over Habba's role has led to federal criminal cases
in New Jersey basically coming to a standstill because no
one knows who's in charge, and the judge's decision could
mean that any actions taken under Habba since July first
(24:06):
are open to challenges by defendants. It could also reverberate
across the country because the Justice Department has been using
similar complex maneuvers to extend the tenures of other Trump
loyalists as interim US attorneys in California, Arizona, New Mexico,
and New York. Joining me is Anne Joseph O'Connell, a
(24:27):
professor at Stanford Law School. Federal Judge Matthew Brand said
that Alina Habba is not lawfully holding the office of
the United States Attorney and has been in the position
without legal authority since July first. It gets quite complicated,
and so please take us through it.
Speaker 7 (24:46):
It is a lengthy decision with several rulings. Let's march
through the opinion to see how the judge made various rulings.
So the first thing the judge did was to decide
whether Miss Haba was lawfully serving under the specific interim
us Attorney provision twenty eight Usc. Five forty six. And
(25:07):
when he looked at that provision, he determined that the
one hundred and twenty day time limit started when the
first appointment was made under the statute, So that first
appointment was not actually Miss Haba, It was mister Giodano,
and his appointment started, and the one hundred and twenty
(25:27):
days ran from that and ended, according to the judge,
on July first. So although Miss Haba had more days
if you were counting to one hundred twenty from when
she started, the judge held that was not the right
way to consider the clock. So that was the first
decision that starting on July first, miss Haba was not
(25:48):
lawfully serving under section five forty six. Now there was
a ruling kind of connected about whether the government could
turn to the Vacancies Act, because the criminal defendants at
issue argued, well, if Miss Hobbo was not lawfully serving
under five forty six, the government could not turn to
the Federal Vacancy's Reform Act, which provides a way of
(26:09):
getting in temporary acting officials, not just for US attorneys,
but a whole range of positions, and the criminal defendants
argued that actually the Vacancies Act did not apply to
US attorneys because of five forty six, and this was
the one place the judge actually ruled for the government.
The judge said that five forty six was not the
only mechanism for temporary service for US Attorney's spots. He
(26:34):
said that the Federal Vacancy's Reform Act was available now.
That then turns to the next ruling. He said that
Miss Habo was not lawfully serving under the Federal Vacancy's
Reform Act, so the Act applied, but she was not
lawfully serving, and the primary reason for that ruling was that,
as he interpreted Section three three four five of the
(26:55):
Federal Vacancy's Reform Act, you cannot have a first assist
to the vacant Senate confirmed rule be named after the
vacancy in the position, And for the judge, the vacancy
is not the end of interim service under five forty six.
It's the end of when the last Senate confirmed US
(27:16):
attorney left, and so ms Haba was put into a
first assistant slot after the prior confirmed US Attorney left
and the judge held that was not permitted under the
Federal Vacancy's reformat.
Speaker 3 (27:30):
What about her delegating to others?
Speaker 7 (27:32):
There was one more ruling about if she was not
serving under the Federal Vacancy's Reformact, could she perform the
job through what is known as delegation? And that was
the final ruling by the judge in the seventy seven
page opinion, and he held that under another provision of
the Vacancy's Act three three four seven, that Miss Habba
(27:53):
could not perform the role of the US Attorney without
the acting title and through delegation. He said that also
was not permitted.
Speaker 1 (28:02):
Judge Brawn was concerned about allowing stacked interim appointments that
would allow the administration to effectively avoid the confirmation process
and do away with the Senate's advice and consent.
Speaker 7 (28:18):
Yes, so this was about his ruling on twenty eight USC.
Five forty six. This is where you get what are
known as interim US attorneys. There's this one hundred and
twenty day time limit, and then after that the district
Court may choose someone to serve in the role until
a Senate confirmed person comes into the position, and the
government argued that it could make successive one hundred and
(28:42):
nineteen day appointments so that it never hit the one
hundred and twentieth day, where the district Court would then
have a role, and the judge rejected that. The judge said, well,
if you can do that, you could have one hundred
and nineteen days on one appointment, in one hundred nineteen
days on another appointment and keep going. And indeed, the
judge said, you could have a longer term for an
interim US attorney than you could for a Senate confirmed
(29:06):
US attorney, because there's a statutory provision that says that
Senate confirmed US attorneys have a four year term. Of course,
they're at will leaders, so the president can fire them
before that, but they can't serve longer than four years.
And he said, under the government's interpretation of five forty six,
you could actually get in someone for longer than four years.
Speaker 1 (29:24):
Do you think that determination is correct?
Speaker 3 (29:27):
I do.
Speaker 7 (29:28):
The judge relied primarily on the text of five forty
six in making its ruling. Looking at appointment, there's discussion
of definite and indefinite articles. I think the text is
a bit more ambiguous. I would read the text to
say that it is possible that you could have a
successive one hundred and twenty day or one hundred nineteen
(29:50):
day appointments. But the purpose, right, The purpose when Congress
put these time limits back in in two thousand and seven,
was clear right. They wanted restrict on the Attorney general's
powers to name inter remuus attorneys. So for me, a
text plus a purpose argument would say, yes, you can't
just have successive one hundred and nineteen day appointments. But
(30:12):
the judge did talk a little bit about purpose and
legislative history, and I guess I would wait the purpose
and legislative history more than the judge did and acknowledge
that the text is more ambiguous than the ruling does.
Speaker 1 (30:27):
But you would come out at the same point as
the judge.
Speaker 7 (30:30):
Yeah, that you could have one one hundred and twenty
day appointment, and then the district court could name someone,
or you could turn to the federal vacancy's re format
New Jersey.
Speaker 1 (30:42):
You know, criminal cases are at a standstill. Arraignments have
been delayed, hearings, plea agreements, grand jury proceedings, even a
trial who is in charge now the Deputy Attorney General,
Todd Blanche, the number two at the Justice Department, has
been put his name on some of the New Jersey
(31:02):
Office's work in the last couple of days. I mean,
does that solve the problem who's in charge?
Speaker 7 (31:09):
Well, it's just the problem temporarily. I mean, if mister
Blanche is a fixing his signature, that would be okay
because under the various statutory provisions, the Deputy Attorney General
has the same power as the Attorney General, who has
power to do anything that a US attorney might do,
so that would be okay. I think they need to
(31:30):
sort all of this out. I mean, the judge did
stay his own ruling. There was no request from the
government to stay it. He stayed in himself until it
gets sorted out on appeal. Right, this is going to
get sorted out on appeal one way or the other.
And the government I think has a decent chance of
winning on appeal. But obviously if the government does not
win on appeal, they don't want to create more problems
(31:51):
for themselves in the intervening period.
Speaker 1 (31:53):
And didn't the judge say that HABA can't even supervise
And I take it that what she has been doing
is supervising because she has no experience as a prosecutor.
Speaker 7 (32:04):
Well, it's a little unclear, right, She's not supposed to
be carrying out the role of the US attorney. So
he does allow for a special attorney to the Attorney
General to do some tasks, you know, that would be
helpful in the US Attorney's office. And indeed, we can
get to this whole point about delegation, you know, actions,
(32:26):
whether they could be void but could be ratified later.
So there is some room for her to act. But
it's going to create a lot of headaches until or
unless the Appeals Court reverses.
Speaker 1 (32:40):
The Trump administration has done similar maneuvering with other US
Attorney's offices in Los Angeles, Nevada, New Mexico, and upstate
New York, where they've tried to sidestep or override the
Senate confirmation and the judicial appointment process. Does this ruling
(33:01):
implicate those US attorneys as well?
Speaker 7 (33:04):
Yeah, So anyone who is serving as an acting US
attorney because they were named to the first assistant role
under this judge's ruling, if they were named the first
assistant rule after the departure of the last Senate confirmed
US attorney who almost certainly was a Biden administration pick
in many cases, right, they left before January twentieth at noon.
(33:27):
Those people, under this reasoning, would not be properly serving
under the Vacancies Act.
Speaker 1 (33:32):
We can anticipate that defendants and those jurisdictions are going
to file suits as well, challenging the authority of the
US attorneys.
Speaker 7 (33:41):
Yes, and it's not just limited to US attorneys. The
ruling about the Federal Vacancies Act which this judge made
says that any first assistant who is serving as the
default acting official under the Federal Vacancy's Reform Act has
to have been in place before the departure of the
last Senate confirmed person in a cup position. Well, that
covers US attorneys, but it covers hundreds of more positions.
(34:05):
So all of those first assistants you know, now leading
that organization whatever federal agency in an acting capacity, those
people too, are serving in violation.
Speaker 1 (34:15):
So that would have really broad implications.
Speaker 7 (34:17):
Yeah, So the first thing we were talking about, you know,
these successive one hundred and nineteen day appointments, that's only
about US attorneys, right, that's you know about ninety something positions.
The second ruling about the timing of the first assistant
that applies to hundreds of positions. And I should note
that for both of these rulings, actually the one specific
to US attorneys on five forty six and the timing
(34:40):
of the first assistant, this is the first judicial ruling
on these issues anywhere, right, So we don't have a
ruling about successive US attorney in the interim capacity under
five forty six. There's sort of language in a footnote
in a much older case which that is actually permitted,
(35:01):
but we've never had a ruling from any court saying
that successive interim US attorney positions are prohibited under five
forty six, and the much broader ruling that the first
assistant has to be in place prior to the departure
of the last confirmed person. This judge is also the
first to make that conclusion, and.
Speaker 1 (35:19):
The Trump administration has already said they're appealing the decision.
So the Third Circuit, I guess, will be the first
circuit to rule on this as well.
Speaker 7 (35:28):
That's right. And then there's another ruling that has implications
far beyond US attorneys. So once the judge decided that
Miss Habba was not lawfully serving under the Federal Vacancy's
Reform Act. He had to turn to the fallback argument
of the government, which was that it's okay if she
doesn't have the formal acting title under the Federal Vacancy's
(35:50):
Reform Act, Miss Bondi has named her under section five
fifteen in other provisions regarding the Department of Justice as
a special attorney to the Attorney General, and in that rule,
according to Miss Bondi and the government, miss Haba could
carry out all the functions, all the non exclusive functions
of the US Attorney position through delegation. And the judge
(36:15):
rule that this is not permissible, and this does go
against other court rulings. So the Ninth Circuit and the
Court of Appeals for the Federal Circuit have found that
under a slightly different provision but that also talks about
functions and duties three three, four, eight of the Vacancies Act,
that the government can delegate non exclusive duties down to
(36:38):
someone and there's no problem there. And this is widely
done in the government, in large part because of a
broken appointment system. There are many Senate confirmed roles of
assistance secretary and the like kind of lower levels that
are delegated down and this ruling would prevent.
Speaker 3 (36:56):
That any final thoughts.
Speaker 7 (36:59):
This ruling by Chief Judge Brand did not actually make
any constitutional decision because everything could be resolved on statutory grounds.
There was no need to make constitutional rulings. So that's
one thing. I think the Constitution was in the background
as he was interpreting statutes and he says that, but
(37:19):
there are no constitutional rulings in this decision. The second
thing that struck me was about when the vacancy occurred, right,
because we have all these clocks. Right, we had this
discussion about a clock on the Interim Service under five
forty six, and then we have a clock under the
Federal Vacancy's REFORMA Act, and the Office of Legal Counsel
(37:42):
in an opinion in two thousand and three, held that
these clocks run separately. But what's interesting to me is
that the judge in a footnote, actually footnote one hundred
and fifty three, just to give a flavor of how
complicated the decision is, he says that he dates the
vacancy for the purposes of the Federal Vacancy Reform Act,
as not when the interim service ended. Instead, it's when
(38:06):
the last Senate confirmed person left. And this matters to
the Vacancy's Act clocks. So that means that we're counting right.
Either the three hundred days at the start of an
administration were counting back to January twentieth. So even if
the administration found someone who did qualify under the reasoning
(38:28):
in this opinion, for example, they were Senate confirmed to
another job, right, that's section three three four.
Speaker 5 (38:33):
Five A two.
Speaker 7 (38:34):
Right, you could make Todd Blanche the acting US Attorney
for the District of New Jersey under the Federal Vacancy's
Reform Act, and this judge would not have a problem
with that. But the time clock for mister Blanche to
use the title Acting US Attorney for the District of
New Jersey dates back from when the last Senate confirmed
person left, and it kind of gets rolled over with
(38:56):
the new administration, so from January twentieth, So it's actually
not that much time even if you actually got someone
who met the requirements under the Federal Vacancies Reform Act.
And then the last thing I'll say is there is
this complex reasoning at the end about what is void
and what can be ratified and Chief Judge Brand is
(39:19):
trying to distinguish this case from the Federal Circuit case
and the Ninth Circuit case by saying those cases were
about kind of what could be ratified under section three
three four eight, and he's focusing instead on section three
three four seven, which talks about how the Vacancies Act
(39:40):
is exclusive with regard to functions and duties of covered positions.
And so he says, well, Ms Haba can't do all
of this stuff under three three four seven, but I'm
going to acknowledge that it seems like anything she could
try to do is non exclusive, so it could ratified
(40:01):
under three three four eight by you know, the Attorney
General for example, someone higher up. And so this gets
into a little bit of weirdness where the judge at
the end is saying, well, she can't do it, but
if she does it, someone else could ratify it. And
so I think this issue about three three four seven
(40:21):
and three three four eight. I think that's really going
to be the heart of the government's appeal, along with
this idea of the timing of the first assistant.
Speaker 1 (40:29):
Thanks so much, Ed for taking us through this complex area.
That's Professor and Joseph O'Connell of Stanford Law School. 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 Podcast. You can find them on Apple Podcasts, Spotify,
and at www dot Bloomberg dot com slash podcast Slash Law,
(40:52):
And remember to tune into The Bloomberg Law Show every
weeknight at ten pm Wall Street Time. I'm June Grosso
and you're listening to Bloomberg.
Speaker 3 (41:06):
Hmm
Popular Podcasts
On Purpose with Jay Shetty
I’m Jay Shetty host of On Purpose the worlds #1 Mental Health podcast and I’m so grateful you found us. I started this podcast 5 years ago to invite you into conversations and workshops that are designed to help make you happier, healthier and more healed. I believe that when you (yes you) feel seen, heard and understood you’re able to deal with relationship struggles, work challenges and life’s ups and downs with more ease and grace. I interview experts, celebrities, thought leaders and athletes so that we can grow our mindset, build better habits and uncover a side of them we’ve never seen before. New episodes every Monday and Friday. Your support means the world to me and I don’t take it for granted — click the follow button and leave a review to help us spread the love with On Purpose. I can’t wait for you to listen to your first or 500th episode!
Stuff You Should Know
If you've ever wanted to know about champagne, satanism, the Stonewall Uprising, chaos theory, LSD, El Nino, true crime and Rosa Parks, then look no further. Josh and Chuck have you covered.
The Joe Rogan Experience
The official podcast of comedian Joe Rogan.