May 9, 2025 • 37 mins
Constitutional law expert David Super, a professor at Georgetown Law, discusses the Supreme Court allowing Trump’s transgender military ban. Former federal prosecutor Jimmy Gurule, a professor at Notre Dame Law School, discusses the Los Angeles US Attorney making an unorthodox plea deal. 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 Grosseo from Bloomberg Radio. Look,
I just want to keep serving. I'm at nineteen and
a half years, i have sixty combat missions in Iraqi, Afghanistan.
I'm a certified test pilot, flown over twenty one airframes
at seventeen hundred flight hours in aircraft like the F
eighteen that you saw on top Gun two. I just
(00:23):
want to keep doing my job.
Speaker 2 (00:25):
Emily Shilling is a decorated Navy commander in combat pilot.
She is also transgender and is challenging President Trump's ban
on transgender people serving in the military. A federal judge
had blocked the ban, finding there was no evidence that
transgender troops posed a threat to military readiness, but this
(00:46):
week the conservative justices on the Supreme Court, over the
descents of the three liberal justices, pause that order to
allow the Trump administration to start discharging thousands of transgender
service members, including experienced officers who've served openly for years.
Defense Secretary Pete Hegseth said the military is leaving wokeness
(01:10):
and weakness behind.
Speaker 3 (01:12):
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 (01:26):
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 their reasoning was. We just
know that the three liberal justices dissented. What's your take
on this decision.
Speaker 4 (01:43):
I think it's disappointing because the plainiffs made a compelling case.
This looks like a classic equal protection claim. The executive order,
as plainiffs say, is dripping with consmpt or transgender people.
So this is big a treat not military preparedness, and
(02:04):
I would have hoped the Court would have treated it accordingly.
But that doesn't mean that they've resolved it on the merits.
Speaker 2 (02:12):
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 (02:29):
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.
(02:53):
The soldiers are alleging that they're being discriminated against both
because of sex and because of their trans gender status,
and that the government has nowhere near enough adequate justification
for doing this.
Speaker 2 (03:06):
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 (03:17):
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.
(03:40):
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
(04:01):
for this change of the status quo.
Speaker 2 (04:03):
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. Do you think that
deference is the main reason why the Supreme Court decided
to lift the injunction.
Speaker 4 (04:22):
Only suspect it is the President and 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 is trying to balance the scales in that regard.
Speaker 2 (04:45):
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 (05:05):
I mean, in principle, the administration could be ordered to
restore their prior status if it ultimately loses this litigation.
But the whole point of the reparable injury is that
litigants are forced to suffer circumstances that can't be fully corrected,
(05:26):
and in the best case scenario, having one's military service
interrupted having to gamble one's thea benefits away. All of
that is classic irreparable injury.
Speaker 2 (05:40):
In Jump'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 served.
Speaker 4 (06:00):
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 owde and the lower court
(06:21):
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
(06:43):
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 sol and service people.
Is disturbing and it's ignorant.
Speaker 2 (07:04):
I'm surprised that one of the three liberals didn't write
a descent.
Speaker 5 (07:07):
Are you not?
Speaker 4 (07:09):
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
(07:30):
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 merits.
Speaker 2 (07:43):
So this was about the order from the judge in
Washington State. A judge in Washington, DC has also blocked
the policy, and the Court of Appeals for the DC
Circuit put that on hold temporarily while it heard or arguments.
I mean, how does that case work out when you
have the Supreme Court lifting the injunction of the Washington
(08:06):
State judge.
Speaker 4 (08:07):
That's precisely why the absence of opinions is so significant
and so telling. Here Panels in the Ninth Circuit and
the DC Circuit will write opinions about this, and it
will almost certainly come back to the Supreme Court on
the merits. So it's really wide open. There are many
(08:27):
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.
Speaker 6 (08:38):
It could be.
Speaker 4 (08:38):
Something as technical as concerns about the standing of plaintiffs
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
(09:00):
we don't think the plaintiffs are likely to prevail on
the merits. They didn't say that here.
Speaker 2 (09:05):
So if this could come back to the Court and
the justices could have a different opinion.
Speaker 4 (09:10):
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 (09:25):
I also want to ask you about a controversial comment
by President Trump on Meet the Press last Sunday. Don't
you need to uphold the Constitution of the United States?
As press?
Speaker 4 (09:37):
I don't know. I have to respond by saying, again,
I have brilliant lawyers.
Speaker 7 (09:43):
That work for me, and they are going to obviously
follow what the Supreme Court said.
Speaker 2 (09:49):
I mean, in the past he has talked about his
Article two powers under the Constitution.
Speaker 4 (09:54):
Well, the Constitution has many things in it. It has
Article too, which I'm sure he feels in the to
uphold than 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
are the Supreme Court, and the Supreme Court has, in
(10:14):
a variety of ways, all spring then 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 president
(10:36):
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 haves not complied with
several Supreme Court and lower Court decrees, is not going
(10:57):
to voluntarily change too. And the Supreme Court is going
to have to decide whether they are going to insist
upon compliance with the law.
Speaker 2 (11:06):
They'll certainly have opportunities to do that considering the record
number of emergency applications from the Trump administration to the
Supreme Court. Thanks for joining me, David. That's Professor David
Super of Georgetown Law. I'm June Grosso, and you're listening
to Bloomberg.
Speaker 4 (11:25):
We the jury find the defendant Benjamin David Elliott guilty
of murder, is charging the indictment.
Speaker 8 (11:30):
We the jury, being gullian, powdered and sworn to find
the defendant Adamkoy guilty of murder as he stands charge
in count one of the indictment, sign this fourth day
of November twenty twenty four.
Speaker 4 (11:43):
The jury unanimously finds the murder willful, deliberate, and premeditated.
Speaker 1 (11:48):
The jury unanimously finds the murder was committed by means
of lying.
Speaker 4 (11:51):
In wait.
Speaker 2 (11:52):
No matter how it's phrased, a jury verdict is considered sacrosanct.
A unanimous decision reached by jurors beyond beyond a reasonable
doubt after deliberating on the evidence presented in a criminal trial,
but in a completely unorthodox move, the new US attorney
in Los Angeles is interfering with a jury's verdict of guilt.
(12:15):
After a three day trial, 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. He's facing a ten year prison
sentence for that felony conviction. But now, in an extraordinary,
almost unheard of move, the US Attorney Bill Aseli is
(12:39):
trying to override the jury's verdict by giving Kirk a
plea deal, allowing him to plead to a misdemeanor, and
asking the trial judge to strike the jury's finding. Three
LA prosecutors have resigned in protest. My guest is former
federal prosecutor Jimmy Garoula, a professor at Notre Dame Lassuit Goal. So, Jimmy,
(13:01):
this former sheriff's deputy is supposed to be sentenced this
month on a felony conviction, facing ten years in prison,
and then suddenly the new US attorney comes in and
gives him a deal to plead to a misdemeanor and
ask the judge to strike the jury's finding that Kirk
injured the victim, which is what made it a felony.
Speaker 6 (13:23):
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 doesn't
(13:46):
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 proceeds to deal
with that process, to petition the court through a petition
for post conviction relief to vacate the conviction. And there's
(14:06):
no claims relegations 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. There's a
(14:30):
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 to me that the motivation or justification is
purely political.
Speaker 2 (14:49):
Yeah, and there is no explanation for why they're giving
Kirk this plea deal. And the trial judge in the
case denied emotion by the defense for acquittal last month
and said 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
(15:09):
unreasonable force.
Speaker 6 (15:11):
Yeah. So as a matter of fact, the court is
finding that there was sufficient evidence presented a trial to
justify the conviction. 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 not appear to
(15:32):
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, they're not
entitled to do process in this particular case with respect
(15:54):
to Deputy Trevor Kirk, he received full due process, but
the administrator, 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 the
criminal justice system and the validity of jury convictions.
Speaker 2 (16:16):
Also, the four federal prosecutors who are working on the
case refuse to sign the plea agreement and withdrew from
the case, and then three of them, including the chief
of the Public Corruption and Civil Rights Section, resigned from
the office.
Speaker 6 (16:30):
Yeah, they stepped down, I mean, which was 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 plea bargains.
(16:52):
For example, as a defendant enters into a plea bargain,
he may withdraw the plea bargain after the fact, but
only based upon a finding by the court that withdrawing
the Guilli 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 verdict should
be overridden for political considerations. I mean, that doesn't strike
(17:16):
me as 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
and it shouldn't be ignored and disregarded by the Department
(17:38):
of Justice, apparently the only reason being that they just
didn't like the end result.
Speaker 2 (17:43):
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 6 (17:57):
That's the political reason. That was a political influence that
apparently caused the US attorney to seek to override the
jury's conviction. And that's not a legitimate basis. I mean,
convictions should be based on the facts and the evidence,
not on political issues, political influence, political affiliation with one
party or another. That's not democracy in the United States.
(18:19):
That's 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 in the criminal
justice system, and they're going to say, well, how come
this guy got such favorable treatment and result? What about
the other guy? You know, what about somebody who wasn't
a political favorite, what about someone who wasn't a law
(18:39):
enforcement officer, what about someone who's an ordinary citizen. Would
the ordinary citizen received this type of outcome? A guilty
verdict being overturned for political reasons highly unlikely?
Speaker 2 (18:50):
And why should I waste days weeks or even months
sometimes serving on a jury, when you're going to throw
out my verdict exactly.
Speaker 6 (19:00):
It has so many negative, corrupting implications. I'm really hopeful
that the judge rejects this motion to withdraw the guilty
verdict and permit Kirk to plead guilty to a misdemeanor.
I mean, it's convicted of a felony, and now they
want him to plead to a misdemeanor, and then they're
going to give him probation. It's just shocking, a shocking
(19:22):
action by the Department of Justice.
Speaker 2 (19:24):
The final decision is up to the trial judge, and
he's questioning whether he even has the authority to grant
the government's motion to strike part of the jury's verdict.
He's asking both sides to file briefs on it.
Speaker 6 (19:38):
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, 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 precedent that
would afford the trial judge to that authority. So that's
(19:59):
clearly an issue. The problem here is 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 be no way to review judicially
review the trial court's decision, and so I think it
(20:22):
would be final.
Speaker 2 (20:23):
Also, if he's allowed to pleed 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 firearm.
Speaker 6 (20:32):
Yeah, I think that's part of it. I think that's
part of the justification and at least from the US
attorneys of it. Oh, we don't want him to have
the stigma of a felon and all of the implications
that are associated with being a convicted felon, you know,
which again would prohibit him from possessing a firearm. So
that's a federal crime for a fella to possessed a firearm,
and so he couldn't work in any capacity that would
(20:54):
require him to carry a firearm. But you know, that's
what happens to defendants every day. You know, defendives 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 should
he be permitted to avoid that consequence of a felony conviction.
I can think of none other than political.
Speaker 2 (21:16):
It's reminiscent of all the federal prosecutors who 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 6 (21:35):
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
(21:56):
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.
Speaker 2 (22:10):
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 6 (22:24):
Well, I think the problem is is that we know
that this particular president values loyalty, perhaps above all things, loyalty,
and so whatever he wants done, he expects the persons
that he has placed in those positions to do what
he wants them to do with no questions asking. When
I was a prosecutor, I never ever was looking over
(22:46):
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, the political implications, whether this
would favor a political party or disfavor a political party,
(23:08):
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 always there going
to be retaliation, and 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
(23:28):
expect and what we often see in countries that are
run by authoritarian governments and authoritarian presidents.
Speaker 2 (23:34):
Can you think of any case even similar to what
the US attorney is doing here or trying to do here.
Speaker 6 (23:39):
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
(24:00):
initiated the 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 approved
his innocence now, just because now the new sheriff in
town doesn't like the result.
Speaker 2 (24:19):
And there is also the possibility of a presidential part
in Thanks so much, Jimmy that's Professor Jimmy Garula of
Notre Dame Law School.
Speaker 7 (24:28):
You know we have a public health crisis in this country.
Speaker 2 (24:31):
Eight But the day before talking about our nation's public
health crisis, Health Secretary Robert F. Kennedy Junior had announced
a massive restructuring of the Department of Health and Human Services.
It included cutting more than twenty thousand employees, nearly a
quarter of its workforce, reducing regional offices from ten down
(24:52):
to five, and collapsing twenty eight divisions into fifteen. The
cuts were made as part of a directive the Trump
administration has dubbed make America Healthy Again. But Democratic attorneys
general from nineteen states and DC say the sweeping restructuring
is doing just the opposite, destroying life saving programs and
(25:15):
leaving states to pick up the bill for mounting health costs.
New York Attorney General Letitia James is leading their federal
lawsuit filed on Monday, asking a court to stop the
dismantling and mass firings and to restore the programs that
have been cut.
Speaker 7 (25:32):
These actions are dangerous, cruel, and illegal. They defy Congress's authority,
and they violate federal law, and that is why today
I'm leading a lawsuit joined by Democratic attorneys general across
the country to stop this administration from tearing down a
public health infrastructure.
Speaker 2 (25:52):
Joining me is healthcare attorney Harry Nelson, a partner at
Leech Tishman Nelson Hardiman Harry. In general, how has RFKE
Junior changed the Department?
Speaker 5 (26:02):
There's been a pretty significant amount of changes. I think
the biggest change has been employee layoffs 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. There's just a lot fewer
personnel in place. As you mentioned, there's been a consolidation
(26:23):
of twenty eight total sub agencies within Health and Human
Services down to fifteen, with various mergers and eliminations, a
number of closures of public health programs. The FDA passed
on a bird flu vaccine application due to some of
the lab shutdowns. The Center for Disease Control halted measles
testing despite a nationwide outbreak that we've been seeing. NIH
(26:48):
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 interrupt did because of staff shutdowns, and of course DOGE,
the Department of Government Efficiency is like continuing streamlining organizationally
(27:10):
getting rid of people, and every day is bringing new
changes and tell us about the allegations.
Speaker 2 (27:16):
In the lawsuit.
Speaker 5 (27:17):
Sure, so they 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,
they alleged a violation of the Administrative Procedure Act, which
(27:38):
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
in and dismantled programs that were authorized specifically by Congress,
(28:00):
invading Congress's authority. And there's an allegation 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 being violated. So those are the primary legal
theories in this case.
Speaker 2 (28:21):
Do they take aim at Kennedy's larger public health agenda
and you know, his opposition to vaccines and floor right
in the water, that.
Speaker 5 (28:32):
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's preceded, and
not about rfk's specific idiosyncratic views. And frankly, it's not
clear to what extent his views are driving this because
(28:53):
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 looked like a broader ideological disruption
and downsizing of a federal agency rather than like rfk's
disbelief in particular kinds of health programs.
Speaker 2 (29:12):
So it's following the pattern of other lawsuits that claim
the executive branch can't incapacitate an agency like AGHS without
Congress signing off, and that the administration is violating the
appropriations clause because Congress already authorized funds for the agency's operations.
Speaker 5 (29:34):
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 (29:51):
Last week, the Trump administration released a proposed budget which
has a twenty six percent cut to the HJS 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
(30:13):
power because Congress has decided to cut the budget for HHS.
Speaker 5 (30:18):
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
some of these changes, but right now we're in an
already funded environment where moneies have already been allocated and
(30:40):
we're not talking about it. So the two things do
go kind of handing glove. But it's a slightly different
issue because the money is authorized, Congress has made choices
by virtue of our previous budgets, and so if the
twenty twenty six budget you know is enacted, frankly, it
will be different cuts on the same trajectory, and they'll
have a additional further impacts. But these are two different things.
Speaker 2 (31:03):
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 6 (31:25):
Now?
Speaker 5 (31:26):
This is affecting our medical and public health research 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. We're talking a massive scale
of reduction. Assuming that it's going to be consistent with
(31:49):
what ourfcase indicated, we can expect the cuts to come
from new drugs and more specialized health conditions, because our case,
you know, been promising that there's going to be a
greater focus on chronic conditions, where there is a theory
more thing for the buck in terms of the number
(32:10):
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, like radical changes in
(32:31):
labs being shut down, projects being shuttered, and just a massive,
massive disruption.
Speaker 2 (32:36):
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 can't dismantle an agency completely,
it was already too late by the time the judges'
orders came out. I mean, people had been fired already
(32:57):
and things had already started to integrate somewhat the same
thing happened here. I mean, he's already done the damage.
Speaker 5 (33:04):
It's 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 National
(33:25):
Institute of health, you know, if their positions are going
to have to look for new jobs. But what I'm
hearing is a lot of uncertainty for doctors who were
including research activities, you know, in their priorities. I think
the cut represents something like one third of the total
budget of the National Institute of Health, and again it's
going to be interesting to see where it hits. Single
(33:47):
biggest category, of course the United States is cancer research.
We have 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,
and it can't be good for the advancement of public health.
(34:10):
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 (34:17):
Obviously, they haven't filed a response yet. I mean, what
might their possible defense be.
Speaker 5 (34:22):
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 branch. 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
is working. And I think what we're going to hear
(34:43):
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 by forcing more action into the states
(35:04):
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 weight 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 Supreme Court.
Speaker 2 (35:19):
RFK Junior was a very controversial pick for HHS Secretary,
and during his confirmation hearings, 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 (35:39):
Absolutely, there's definitely been I would say, a quiet rollback
on numerous vaccines. And we're already seeing essentially a vaccine
opportunities foregone, like 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 not
(36:00):
only URK, but the people around him, for whom this
is really you know, a kind of passionate point. R
K has a normous power as the head of the agency,
and what we're seeing is 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
(36:22):
leadership roles, and obviously that doesn't bode well for getting
us ready for the vaccines we're going to need in
the coming years.
Speaker 2 (36:30):
And the age's lawsuit paints a frightening picture.
Speaker 5 (36:33):
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
(36:54):
semblance of what it was.
Speaker 2 (36:55):
Well see if the judge issues an injunction. Thanks so much, Harry.
That's healthcare Attorney 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
(37:16):
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
This is Bloomberg Law with June Grosseo from Bloomberg Radio. Look,
I just want to keep serving. I'm at nineteen and
a half years, i have sixty combat missions in Iraqi, Afghanistan.
I'm a certified test pilot, flown over twenty one airframes
at seventeen hundred flight hours in aircraft like the F
eighteen that you saw on top Gun two. I just
(00:23):
want to keep doing my job.
Speaker 2 (00:25):
Emily Shilling is a decorated Navy commander in combat pilot.
She is also transgender and is challenging President Trump's ban
on transgender people serving in the military. A federal judge
had blocked the ban, finding there was no evidence that
transgender troops posed a threat to military readiness, but this
(00:46):
week the conservative justices on the Supreme Court, over the
descents of the three liberal justices, pause that order to
allow the Trump administration to start discharging thousands of transgender
service members, including experienced officers who've served openly for years.
Defense Secretary Pete Hegseth said the military is leaving wokeness
(01:10):
and weakness behind.
Speaker 3 (01:12):
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 (01:26):
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 their reasoning was. We just
know that the three liberal justices dissented. What's your take
on this decision.
Speaker 4 (01:43):
I think it's disappointing because the plainiffs made a compelling case.
This looks like a classic equal protection claim. The executive order,
as plainiffs say, is dripping with consmpt or transgender people.
So this is big a treat not military preparedness, and
(02:04):
I would have hoped the Court would have treated it accordingly.
But that doesn't mean that they've resolved it on the merits.
Speaker 2 (02:12):
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 (02:29):
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.
(02:53):
The soldiers are alleging that they're being discriminated against both
because of sex and because of their trans gender status,
and that the government has nowhere near enough adequate justification
for doing this.
Speaker 2 (03:06):
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 (03:17):
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.
(03:40):
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
(04:01):
for this change of the status quo.
Speaker 2 (04:03):
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. Do you think that
deference is the main reason why the Supreme Court decided
to lift the injunction.
Speaker 4 (04:22):
Only suspect it is the President and 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 is trying to balance the scales in that regard.
Speaker 2 (04:45):
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 (05:05):
I mean, in principle, the administration could be ordered to
restore their prior status if it ultimately loses this litigation.
But the whole point of the reparable injury is that
litigants are forced to suffer circumstances that can't be fully corrected,
(05:26):
and in the best case scenario, having one's military service
interrupted having to gamble one's thea benefits away. All of
that is classic irreparable injury.
Speaker 2 (05:40):
In Jump'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 served.
Speaker 4 (06:00):
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 owde and the lower court
(06:21):
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
(06:43):
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 sol and service people.
Is disturbing and it's ignorant.
Speaker 2 (07:04):
I'm surprised that one of the three liberals didn't write
a descent.
Speaker 5 (07:07):
Are you not?
Speaker 4 (07:09):
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
(07:30):
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 merits.
Speaker 2 (07:43):
So this was about the order from the judge in
Washington State. A judge in Washington, DC has also blocked
the policy, and the Court of Appeals for the DC
Circuit put that on hold temporarily while it heard or arguments.
I mean, how does that case work out when you
have the Supreme Court lifting the injunction of the Washington
(08:06):
State judge.
Speaker 4 (08:07):
That's precisely why the absence of opinions is so significant
and so telling. Here Panels in the Ninth Circuit and
the DC Circuit will write opinions about this, and it
will almost certainly come back to the Supreme Court on
the merits. So it's really wide open. There are many
(08:27):
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.
Speaker 6 (08:38):
It could be.
Speaker 4 (08:38):
Something as technical as concerns about the standing of plaintiffs
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
(09:00):
we don't think the plaintiffs are likely to prevail on
the merits. They didn't say that here.
Speaker 2 (09:05):
So if this could come back to the Court and
the justices could have a different opinion.
Speaker 4 (09:10):
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 (09:25):
I also want to ask you about a controversial comment
by President Trump on Meet the Press last Sunday. Don't
you need to uphold the Constitution of the United States?
As press?
Speaker 4 (09:37):
I don't know. I have to respond by saying, again,
I have brilliant lawyers.
Speaker 7 (09:43):
That work for me, and they are going to obviously
follow what the Supreme Court said.
Speaker 2 (09:49):
I mean, in the past he has talked about his
Article two powers under the Constitution.
Speaker 4 (09:54):
Well, the Constitution has many things in it. It has
Article too, which I'm sure he feels in the to
uphold than 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
are the Supreme Court, and the Supreme Court has, in
(10:14):
a variety of ways, all spring then 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 president
(10:36):
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 haves not complied with
several Supreme Court and lower Court decrees, is not going
(10:57):
to voluntarily change too. And the Supreme Court is going
to have to decide whether they are going to insist
upon compliance with the law.
Speaker 2 (11:06):
They'll certainly have opportunities to do that considering the record
number of emergency applications from the Trump administration to the
Supreme Court. Thanks for joining me, David. That's Professor David
Super of Georgetown Law. I'm June Grosso, and you're listening
to Bloomberg.
Speaker 4 (11:25):
We the jury find the defendant Benjamin David Elliott guilty
of murder, is charging the indictment.
Speaker 8 (11:30):
We the jury, being gullian, powdered and sworn to find
the defendant Adamkoy guilty of murder as he stands charge
in count one of the indictment, sign this fourth day
of November twenty twenty four.
Speaker 4 (11:43):
The jury unanimously finds the murder willful, deliberate, and premeditated.
Speaker 1 (11:48):
The jury unanimously finds the murder was committed by means
of lying.
Speaker 4 (11:51):
In wait.
Speaker 2 (11:52):
No matter how it's phrased, a jury verdict is considered sacrosanct.
A unanimous decision reached by jurors beyond beyond a reasonable
doubt after deliberating on the evidence presented in a criminal trial,
but in a completely unorthodox move, the new US attorney
in Los Angeles is interfering with a jury's verdict of guilt.
(12:15):
After a three day trial, 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. He's facing a ten year prison
sentence for that felony conviction. But now, in an extraordinary,
almost unheard of move, the US Attorney Bill Aseli is
(12:39):
trying to override the jury's verdict by giving Kirk a
plea deal, allowing him to plead to a misdemeanor, and
asking the trial judge to strike the jury's finding. Three
LA prosecutors have resigned in protest. My guest is former
federal prosecutor Jimmy Garoula, a professor at Notre Dame Lassuit Goal. So, Jimmy,
(13:01):
this former sheriff's deputy is supposed to be sentenced this
month on a felony conviction, facing ten years in prison,
and then suddenly the new US attorney comes in and
gives him a deal to plead to a misdemeanor and
ask the judge to strike the jury's finding that Kirk
injured the victim, which is what made it a felony.
Speaker 6 (13:23):
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 doesn't
(13:46):
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 proceeds to deal
with that process, to petition the court through a petition
for post conviction relief to vacate the conviction. And there's
(14:06):
no claims relegations 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. There's a
(14:30):
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 to me that the motivation or justification is
purely political.
Speaker 2 (14:49):
Yeah, and there is no explanation for why they're giving
Kirk this plea deal. And the trial judge in the
case denied emotion by the defense for acquittal last month
and said 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
(15:09):
unreasonable force.
Speaker 6 (15:11):
Yeah. So as a matter of fact, the court is
finding that there was sufficient evidence presented a trial to
justify the conviction. 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 not appear to
(15:32):
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, they're not
entitled to do process in this particular case with respect
(15:54):
to Deputy Trevor Kirk, he received full due process, but
the administrator, 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 the
criminal justice system and the validity of jury convictions.
Speaker 2 (16:16):
Also, the four federal prosecutors who are working on the
case refuse to sign the plea agreement and withdrew from
the case, and then three of them, including the chief
of the Public Corruption and Civil Rights Section, resigned from
the office.
Speaker 6 (16:30):
Yeah, they stepped down, I mean, which was 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 plea bargains.
(16:52):
For example, as a defendant enters into a plea bargain,
he may withdraw the plea bargain after the fact, but
only based upon a finding by the court that withdrawing
the Guilli 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 verdict should
be overridden for political considerations. I mean, that doesn't strike
(17:16):
me as 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
and it shouldn't be ignored and disregarded by the Department
(17:38):
of Justice, apparently the only reason being that they just
didn't like the end result.
Speaker 2 (17:43):
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 6 (17:57):
That's the political reason. That was a political influence that
apparently caused the US attorney to seek to override the
jury's conviction. And that's not a legitimate basis. I mean,
convictions should be based on the facts and the evidence,
not on political issues, political influence, political affiliation with one
party or another. That's not democracy in the United States.
(18:19):
That's 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 in the criminal
justice system, and they're going to say, well, how come
this guy got such favorable treatment and result? What about
the other guy? You know, what about somebody who wasn't
a political favorite, what about someone who wasn't a law
(18:39):
enforcement officer, what about someone who's an ordinary citizen. Would
the ordinary citizen received this type of outcome? A guilty
verdict being overturned for political reasons highly unlikely?
Speaker 2 (18:50):
And why should I waste days weeks or even months
sometimes serving on a jury, when you're going to throw
out my verdict exactly.
Speaker 6 (19:00):
It has so many negative, corrupting implications. I'm really hopeful
that the judge rejects this motion to withdraw the guilty
verdict and permit Kirk to plead guilty to a misdemeanor.
I mean, it's convicted of a felony, and now they
want him to plead to a misdemeanor, and then they're
going to give him probation. It's just shocking, a shocking
(19:22):
action by the Department of Justice.
Speaker 2 (19:24):
The final decision is up to the trial judge, and
he's questioning whether he even has the authority to grant
the government's motion to strike part of the jury's verdict.
He's asking both sides to file briefs on it.
Speaker 6 (19:38):
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, 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 precedent that
would afford the trial judge to that authority. So that's
(19:59):
clearly an issue. The problem here is 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 be no way to review judicially
review the trial court's decision, and so I think it
(20:22):
would be final.
Speaker 2 (20:23):
Also, if he's allowed to pleed 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 firearm.
Speaker 6 (20:32):
Yeah, I think that's part of it. I think that's
part of the justification and at least from the US
attorneys of it. Oh, we don't want him to have
the stigma of a felon and all of the implications
that are associated with being a convicted felon, you know,
which again would prohibit him from possessing a firearm. So
that's a federal crime for a fella to possessed a firearm,
and so he couldn't work in any capacity that would
(20:54):
require him to carry a firearm. But you know, that's
what happens to defendants every day. You know, defendives 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 should
he be permitted to avoid that consequence of a felony conviction.
I can think of none other than political.
Speaker 2 (21:16):
It's reminiscent of all the federal prosecutors who 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 6 (21:35):
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
(21:56):
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.
Speaker 2 (22:10):
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 6 (22:24):
Well, I think the problem is is that we know
that this particular president values loyalty, perhaps above all things, loyalty,
and so whatever he wants done, he expects the persons
that he has placed in those positions to do what
he wants them to do with no questions asking. When
I was a prosecutor, I never ever was looking over
(22:46):
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, the political implications, whether this
would favor a political party or disfavor a political party,
(23:08):
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 always there going
to be retaliation, and 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
(23:28):
expect and what we often see in countries that are
run by authoritarian governments and authoritarian presidents.
Speaker 2 (23:34):
Can you think of any case even similar to what
the US attorney is doing here or trying to do here.
Speaker 6 (23:39):
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
(24:00):
initiated the 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 approved
his innocence now, just because now the new sheriff in
town doesn't like the result.
Speaker 2 (24:19):
And there is also the possibility of a presidential part
in Thanks so much, Jimmy that's Professor Jimmy Garula of
Notre Dame Law School.
Speaker 7 (24:28):
You know we have a public health crisis in this country.
Speaker 2 (24:31):
Eight But the day before talking about our nation's public
health crisis, Health Secretary Robert F. Kennedy Junior had announced
a massive restructuring of the Department of Health and Human Services.
It included cutting more than twenty thousand employees, nearly a
quarter of its workforce, reducing regional offices from ten down
(24:52):
to five, and collapsing twenty eight divisions into fifteen. The
cuts were made as part of a directive the Trump
administration has dubbed make America Healthy Again. But Democratic attorneys
general from nineteen states and DC say the sweeping restructuring
is doing just the opposite, destroying life saving programs and
(25:15):
leaving states to pick up the bill for mounting health costs.
New York Attorney General Letitia James is leading their federal
lawsuit filed on Monday, asking a court to stop the
dismantling and mass firings and to restore the programs that
have been cut.
Speaker 7 (25:32):
These actions are dangerous, cruel, and illegal. They defy Congress's authority,
and they violate federal law, and that is why today
I'm leading a lawsuit joined by Democratic attorneys general across
the country to stop this administration from tearing down a
public health infrastructure.
Speaker 2 (25:52):
Joining me is healthcare attorney Harry Nelson, a partner at
Leech Tishman Nelson Hardiman Harry. In general, how has RFKE
Junior changed the Department?
Speaker 5 (26:02):
There's been a pretty significant amount of changes. I think
the biggest change has been employee layoffs 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. There's just a lot fewer
personnel in place. As you mentioned, there's been a consolidation
(26:23):
of twenty eight total sub agencies within Health and Human
Services down to fifteen, with various mergers and eliminations, a
number of closures of public health programs. The FDA passed
on a bird flu vaccine application due to some of
the lab shutdowns. The Center for Disease Control halted measles
testing despite a nationwide outbreak that we've been seeing. NIH
(26:48):
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 interrupt did because of staff shutdowns, and of course DOGE,
the Department of Government Efficiency is like continuing streamlining organizationally
(27:10):
getting rid of people, and every day is bringing new
changes and tell us about the allegations.
Speaker 2 (27:16):
In the lawsuit.
Speaker 5 (27:17):
Sure, so they 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,
they alleged a violation of the Administrative Procedure Act, which
(27:38):
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
in and dismantled programs that were authorized specifically by Congress,
(28:00):
invading Congress's authority. And there's an allegation 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 being violated. So those are the primary legal
theories in this case.
Speaker 2 (28:21):
Do they take aim at Kennedy's larger public health agenda
and you know, his opposition to vaccines and floor right
in the water, that.
Speaker 5 (28:32):
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's preceded, and
not about rfk's specific idiosyncratic views. And frankly, it's not
clear to what extent his views are driving this because
(28:53):
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 looked like a broader ideological disruption
and downsizing of a federal agency rather than like rfk's
disbelief in particular kinds of health programs.
Speaker 2 (29:12):
So it's following the pattern of other lawsuits that claim
the executive branch can't incapacitate an agency like AGHS without
Congress signing off, and that the administration is violating the
appropriations clause because Congress already authorized funds for the agency's operations.
Speaker 5 (29:34):
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 (29:51):
Last week, the Trump administration released a proposed budget which
has a twenty six percent cut to the HJS 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
(30:13):
power because Congress has decided to cut the budget for HHS.
Speaker 5 (30:18):
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
some of these changes, but right now we're in an
already funded environment where moneies have already been allocated and
(30:40):
we're not talking about it. So the two things do
go kind of handing glove. But it's a slightly different
issue because the money is authorized, Congress has made choices
by virtue of our previous budgets, and so if the
twenty twenty six budget you know is enacted, frankly, it
will be different cuts on the same trajectory, and they'll
have a additional further impacts. But these are two different things.
Speaker 2 (31:03):
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 6 (31:25):
Now?
Speaker 5 (31:26):
This is affecting our medical and public health research 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. We're talking a massive scale
of reduction. Assuming that it's going to be consistent with
(31:49):
what ourfcase indicated, we can expect the cuts to come
from new drugs and more specialized health conditions, because our case,
you know, been promising that there's going to be a
greater focus on chronic conditions, where there is a theory
more thing for the buck in terms of the number
(32:10):
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, like radical changes in
(32:31):
labs being shut down, projects being shuttered, and just a massive,
massive disruption.
Speaker 2 (32:36):
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 can't dismantle an agency completely,
it was already too late by the time the judges'
orders came out. I mean, people had been fired already
(32:57):
and things had already started to integrate somewhat the same
thing happened here. I mean, he's already done the damage.
Speaker 5 (33:04):
It's 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 National
(33:25):
Institute of health, you know, if their positions are going
to have to look for new jobs. But what I'm
hearing is a lot of uncertainty for doctors who were
including research activities, you know, in their priorities. I think
the cut represents something like one third of the total
budget of the National Institute of Health, and again it's
going to be interesting to see where it hits. Single
(33:47):
biggest category, of course the United States is cancer research.
We have 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,
and it can't be good for the advancement of public health.
(34:10):
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 (34:17):
Obviously, they haven't filed a response yet. I mean, what
might their possible defense be.
Speaker 5 (34:22):
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 branch. 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
is working. And I think what we're going to hear
(34:43):
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 by forcing more action into the states
(35:04):
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 weight 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 Supreme Court.
Speaker 2 (35:19):
RFK Junior was a very controversial pick for HHS Secretary,
and during his confirmation hearings, 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 (35:39):
Absolutely, there's definitely been I would say, a quiet rollback
on numerous vaccines. And we're already seeing essentially a vaccine
opportunities foregone, like 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 not
(36:00):
only URK, but the people around him, for whom this
is really you know, a kind of passionate point. R
K has a normous power as the head of the agency,
and what we're seeing is 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
(36:22):
leadership roles, and obviously that doesn't bode well for getting
us ready for the vaccines we're going to need in
the coming years.
Speaker 2 (36:30):
And the age's lawsuit paints a frightening picture.
Speaker 5 (36:33):
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
(36:54):
semblance of what it was.
Speaker 2 (36:55):
Well see if the judge issues an injunction. Thanks so much, Harry.
That's healthcare Attorney 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
(37:16):
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
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