1 00:00:16,640 --> 00:00:20,120 Speaker 1: And we are back with another edition of the Federalist 2 00:00:20,239 --> 00:00:23,960 Radio Hour. I'm Matt Kittle, senior Elections correspondent at the 3 00:00:24,000 --> 00:00:28,760 Federalist and your experienced SHRPA on today's quest for knowledge. 4 00:00:29,120 --> 00:00:32,079 As always, you can email the show at radio at 5 00:00:32,079 --> 00:00:36,240 the Federalist dot com, follow us on x at FDR LST, 6 00:00:36,719 --> 00:00:39,600 make sure to subscribe wherever you download your podcast, and 7 00:00:39,759 --> 00:00:43,039 of course to the premium version of our website as well. 8 00:00:43,640 --> 00:00:47,240 Mark Genowith, President of the new Civil Liberties Alliance that 9 00:00:47,439 --> 00:00:51,439 joins us today. As we ask the questions, the very 10 00:00:51,640 --> 00:00:56,759 important questions, what are the legal what are the constitutional 11 00:00:56,840 --> 00:01:02,439 limits of executive branch power, particularly the president's power to fire? 12 00:01:02,880 --> 00:01:07,879 That question was once again before the US Supreme Court. 13 00:01:08,680 --> 00:01:10,959 Thank you, sir for joining us. I appreciate your time 14 00:01:11,040 --> 00:01:12,920 and I appreciate you being here with us on the 15 00:01:12,920 --> 00:01:13,959 Federalist Radio Hour. 16 00:01:14,640 --> 00:01:16,680 Speaker 2: Great to be with you, looking forward to our conversation. 17 00:01:17,200 --> 00:01:21,400 Speaker 1: Well, I'll tell you what this is tested over and 18 00:01:21,480 --> 00:01:24,280 over again, it seems over the last year, or at least, 19 00:01:24,319 --> 00:01:26,840 the question is put forward to the US Supreme Court. 20 00:01:27,879 --> 00:01:32,400 Just heard oral argument in Trump the Cook, the case 21 00:01:32,560 --> 00:01:36,799 over whether President Trump can remove Federal Reserve Board Governor 22 00:01:37,280 --> 00:01:42,079 Lisa Cook from office. The New Civil Liberties Alliance filed 23 00:01:42,359 --> 00:01:45,719 in a Meekas brief in that case, urging the justices 24 00:01:45,799 --> 00:01:51,400 to let President Trump remove Cook, and NCLA experts tuned 25 00:01:51,400 --> 00:01:55,120 in and have I think an interesting point of view 26 00:01:55,159 --> 00:01:57,519 on this. I talked to one of your colleagues earlier 27 00:01:57,560 --> 00:02:01,040 this week, but why do you want this poor lady, 28 00:02:01,079 --> 00:02:04,599 this poor governor of the Federal Reserve fired. 29 00:02:07,239 --> 00:02:09,879 Speaker 3: Well, it's not so much that I want her fired, 30 00:02:09,919 --> 00:02:13,199 but that apparently President Trump would like to have her fired, 31 00:02:13,199 --> 00:02:17,960 and that he has the constitutional authority to have that happen. 32 00:02:18,120 --> 00:02:22,680 So what we have tried to tell the Supreme Court, 33 00:02:23,439 --> 00:02:25,159 and I think some of this came out in the 34 00:02:25,240 --> 00:02:27,919 oral argument, some of it didn't this week, but we 35 00:02:28,039 --> 00:02:32,719 tried to say, look, Congress set a particular standard for 36 00:02:32,800 --> 00:02:37,039 removal here, it's a four removal standard, but they didn't 37 00:02:37,120 --> 00:02:40,439 put a lot of specification behind that. They have in 38 00:02:40,560 --> 00:02:44,159 other statutes involving other agencies, but not so much with 39 00:02:44,240 --> 00:02:49,479 the Federal Reserve. President Trump identified a putative four cause 40 00:02:49,560 --> 00:02:55,080 reason for Governor Cook's termination, namely that he believes that 41 00:02:55,120 --> 00:02:58,240 she lied on a mortgage application, and so he fired 42 00:02:58,280 --> 00:03:01,680 her and that really is where the story should end. 43 00:03:02,560 --> 00:03:05,360 But in this case, we had a federal district judge 44 00:03:05,719 --> 00:03:13,439 who heard miss Cook's complaint and enjoined her removal from 45 00:03:13,479 --> 00:03:16,360 the Board of governor. So another off ramp that we 46 00:03:16,400 --> 00:03:18,360 need to keep in mind is that the court could 47 00:03:18,400 --> 00:03:21,719 just decide that district judges don't have the power to 48 00:03:21,919 --> 00:03:25,280 enjoin the president from firing someone, and then they wouldn't 49 00:03:25,280 --> 00:03:29,560 even have to necessarily reach the set of substantive constitutional 50 00:03:29,639 --> 00:03:33,080 questions that were largely talking about today. 51 00:03:33,800 --> 00:03:36,840 Speaker 1: It's interesting you say that, because I have a question, 52 00:03:36,879 --> 00:03:39,280 and I think a lot of folks are asking this question. 53 00:03:39,360 --> 00:03:44,240 Whatever happened to the idea of to serve at the 54 00:03:44,280 --> 00:03:47,000 will of the president. It would seem to me this 55 00:03:47,039 --> 00:03:53,120 would be the case therein. But the Federal Reserve Board 56 00:03:53,400 --> 00:03:56,560 has long been seen in its one hundred and twelve 57 00:03:56,680 --> 00:04:02,960 years as a quasi private entity. Doesn't at the will, however, 58 00:04:03,120 --> 00:04:05,400 still apply in this case. 59 00:04:06,960 --> 00:04:10,680 Speaker 3: So that's the constitutional question that in a sense, the 60 00:04:10,680 --> 00:04:14,360 President didn't trigger because he went along with the statutory 61 00:04:15,759 --> 00:04:19,639 structure here and under the statute he had to specify 62 00:04:19,639 --> 00:04:22,800 a cause, and he did so and fired her for 63 00:04:22,839 --> 00:04:25,600 that cause, and so he has not challenged and for 64 00:04:25,639 --> 00:04:29,439 purposes of this case, the Solicitor General affirmed to the 65 00:04:29,480 --> 00:04:34,120 Supreme Court that the President is not challenging the constitutionality 66 00:04:34,199 --> 00:04:37,600 of that four cause removal standard. But you raise a 67 00:04:37,600 --> 00:04:42,879 good point, because if the Supreme Court were to decide, no, 68 00:04:43,000 --> 00:04:47,040 you didn't do something right here, you didn't actually satisfy 69 00:04:47,079 --> 00:04:50,560 the four cause standard, then that might actually prompt the 70 00:04:50,600 --> 00:04:55,079 President to challenge the constitutionality of the four cause standard. 71 00:04:55,079 --> 00:04:57,680 And I don't know the extent to which the Justices 72 00:04:57,720 --> 00:05:02,279 are keeping that dynamic in mind, but this particular case 73 00:05:02,319 --> 00:05:06,439 won't tee that up because he did follow the four 74 00:05:06,519 --> 00:05:09,720 cause standard, or at least claims to. And so the 75 00:05:09,800 --> 00:05:12,519 question they're really looking at is did he follow the 76 00:05:12,560 --> 00:05:14,839 statute or not. They're not so much looking at that 77 00:05:14,959 --> 00:05:20,720 question whether the four cause removal standard is constitutional. But 78 00:05:20,759 --> 00:05:24,480 to your larger point, most of the principal officers that 79 00:05:24,560 --> 00:05:26,639 report to the president do serve at will. If you 80 00:05:26,680 --> 00:05:29,600 think of the Secretary of State, the Secretary of the Treasury, 81 00:05:29,639 --> 00:05:32,959 anybody in the cabinet, those folks all serve at the 82 00:05:33,000 --> 00:05:36,199 pleasure of the president. The President's chief of staff, the 83 00:05:36,240 --> 00:05:39,680 White House Counsel, any of those people in the president's 84 00:05:39,680 --> 00:05:42,839 immediate orbit at the White House, those folks all serve 85 00:05:43,000 --> 00:05:46,560 at will. Really the only exception in that immediate circle 86 00:05:46,600 --> 00:05:49,959 around the president is the vice president, who is separately elected, 87 00:05:50,040 --> 00:05:52,959 of course, and so the president can't fire can't fire 88 00:05:52,959 --> 00:05:55,879 the vice president. But everybody else pretty much serves at 89 00:05:55,920 --> 00:05:59,879 the pleasure of the president. So what is different about 90 00:06:00,560 --> 00:06:05,319 these independent agencies is that Congress has purported to put 91 00:06:05,360 --> 00:06:11,120 tenure removal protections around the governors at the Federal Reserve 92 00:06:11,199 --> 00:06:14,959 Board or the commissioners at so called independent agencies like 93 00:06:15,000 --> 00:06:18,600 the Federal Trade Commission or the Federal Communications Commission or 94 00:06:18,639 --> 00:06:20,959 the Consumer Product Safety Commission, where I used to work. 95 00:06:22,040 --> 00:06:24,920 Speaker 1: Is this in broader sense too? Is this a good 96 00:06:25,040 --> 00:06:28,920 test for the Supreme Court? I think about last summer 97 00:06:29,480 --> 00:06:35,680 when the Court issued a ruling an order, if you will, 98 00:06:35,839 --> 00:06:41,959 and said, addressed the district courts who have been issuing 99 00:06:42,560 --> 00:06:49,800 nationwide restraining orders basically stopping the executive branch, stopping the 100 00:06:49,839 --> 00:06:53,319 president from doing this or that. And there are a 101 00:06:53,360 --> 00:06:56,319 lot of different areas where these judges have entered into 102 00:06:56,360 --> 00:07:01,360 that to try to issue these nationwide orders. And the 103 00:07:01,360 --> 00:07:05,600 Court said, no, no, you in the main do not 104 00:07:05,720 --> 00:07:09,480 have that authority stop doing that. Well, that's exactly what 105 00:07:09,519 --> 00:07:13,120 we have in this case. No matter where this all goes, 106 00:07:13,439 --> 00:07:19,319 could the Supreme Court say, well, you've made these kinds 107 00:07:19,360 --> 00:07:22,199 of arguments, this is where this case stands. But also 108 00:07:22,360 --> 00:07:25,519 we want to remind you folks, and hopefully there is 109 00:07:25,560 --> 00:07:28,680 something that they can do to enforce it. But if 110 00:07:28,680 --> 00:07:32,680 you're at the district court level, you cannot act in 111 00:07:32,759 --> 00:07:36,480 a national capacity in this case or in so many others. 112 00:07:37,600 --> 00:07:39,279 Speaker 3: So I think this case is a little bit different 113 00:07:39,560 --> 00:07:43,000 in that particular regard because it really only involves the 114 00:07:43,040 --> 00:07:46,800 one person who is suing only Governor Cook, so the 115 00:07:46,839 --> 00:07:50,279 decision wouldn't have the sort of nationwide scope that you 116 00:07:50,360 --> 00:07:54,879 have seen from other district court rulings. The way that 117 00:07:54,920 --> 00:07:56,839 it's similar, though, is that I do think that the 118 00:07:56,879 --> 00:08:02,160 district judge here was exceeding his or her traditional authority. 119 00:08:02,199 --> 00:08:07,279 That is there there's a long standing precedent and understanding 120 00:08:07,399 --> 00:08:12,879 that district court judges cannot enjoin the president himself, and 121 00:08:13,319 --> 00:08:15,839 so you know, so that's one restriction, but there's also 122 00:08:15,879 --> 00:08:22,240 a long standing understanding that that these that the remedy 123 00:08:22,319 --> 00:08:26,160 that folks might have if they are improperly fired is 124 00:08:26,199 --> 00:08:29,319 not a remedy to enjoin them from being fired or 125 00:08:29,519 --> 00:08:34,000 or a reinstating them to office. District judges historically have 126 00:08:34,080 --> 00:08:38,039 not thought that they had that power to enjoin or 127 00:08:38,080 --> 00:08:42,320 reinstate someone to office. Rather, the remedy someone would have 128 00:08:42,759 --> 00:08:46,480 is pursuing back pay. So if you were appointed for 129 00:08:46,600 --> 00:08:51,039 a term of years, for example, and you were improperly terminated, well, 130 00:08:51,080 --> 00:08:52,720 then you would have a right to the salary that 131 00:08:52,799 --> 00:08:55,240 you would have earned for that period of time. That's 132 00:08:55,360 --> 00:08:59,879 typically seen as the appropriate remedy. And one of the 133 00:08:59,879 --> 00:09:03,799 reasons for that is because office holders have not been 134 00:09:03,879 --> 00:09:07,360 thought in the main to have a property right in 135 00:09:07,559 --> 00:09:11,399 holding office. So you might have an interest in the salary, 136 00:09:11,399 --> 00:09:14,960 but you don't necessarily have a property interest in holding 137 00:09:15,000 --> 00:09:18,759 the office itself. Now, I think that's sometimes looked at 138 00:09:18,799 --> 00:09:22,679 differently for Article three judges who are lifetime appointees, but 139 00:09:22,759 --> 00:09:28,519 for these folks who are appointed for lesser terms, again, historically, 140 00:09:28,559 --> 00:09:30,919 they haven't been thought to have a property interest in 141 00:09:30,919 --> 00:09:34,039 their office. So that is something that the Supreme Court 142 00:09:34,120 --> 00:09:36,720 is looking at in this case. Does Miss Cook have 143 00:09:37,240 --> 00:09:41,159 a property right interest in her office? And one of 144 00:09:41,159 --> 00:09:43,200 the reasons the Court is looking at that is because 145 00:09:43,240 --> 00:09:46,240 she's claiming she does, and she's claiming that that gives 146 00:09:46,240 --> 00:09:49,840 her a constitutional right to do process. 147 00:09:49,879 --> 00:09:50,559 Speaker 2: So you can't be. 148 00:09:50,559 --> 00:09:54,120 Speaker 3: Deprived under the Fifth Amendment of due process or excuse me, 149 00:09:54,159 --> 00:09:57,639 of property without due process of law. So she's saying 150 00:09:57,759 --> 00:10:01,559 she's been deprived of property i e. Her office, without 151 00:10:01,639 --> 00:10:05,559 due process of law. And so that, notwithstanding what the 152 00:10:05,720 --> 00:10:09,039 statute says governing the Federal Reserve, that she has a 153 00:10:09,080 --> 00:10:14,759 constitutional right to notice and a hearing before being dismissed. 154 00:10:14,799 --> 00:10:18,039 And so that was something that the justices were struggling 155 00:10:18,039 --> 00:10:23,600 with at the oral argument as well. 156 00:10:23,840 --> 00:10:26,279 Speaker 1: But doesn't that tell you all you need to know 157 00:10:26,600 --> 00:10:35,799 about the administrative state? Another administrative state, administrative stator is 158 00:10:35,960 --> 00:10:42,519 claiming that they have property rights in their job, their 159 00:10:42,559 --> 00:10:48,639 government job. And while it's a maybe a quasi private entity, 160 00:10:49,559 --> 00:10:52,480 it very much is in terms of its regulatory power 161 00:10:52,600 --> 00:10:58,639 tied into the executive branch. But what about that again, 162 00:10:58,720 --> 00:11:06,039 you have this claim that this governor of the Reserve 163 00:11:06,080 --> 00:11:09,240 Board has a right to the property of her job. 164 00:11:10,879 --> 00:11:11,080 Speaker 2: Right. 165 00:11:11,159 --> 00:11:13,360 Speaker 3: So if folks talk about these independent agencies, and I 166 00:11:13,399 --> 00:11:16,080 think they mean at least two different things when they 167 00:11:16,120 --> 00:11:19,279 talk about that independence. One of them is that these 168 00:11:19,320 --> 00:11:23,000 are freestanding agencies, right, So something like the Consumer Product 169 00:11:23,039 --> 00:11:26,440 Safety Commission is an independent agency because it's not part 170 00:11:26,559 --> 00:11:31,200 of the Department of Commerce or some other department. It's 171 00:11:31,240 --> 00:11:34,559 an independent agency in that sense. But sometimes people are 172 00:11:34,600 --> 00:11:36,679 saying that they are independent in the sense of being 173 00:11:36,759 --> 00:11:41,320 independent from the president. And that's where we run into 174 00:11:41,480 --> 00:11:46,120 some difficulty. And that's where NCLA is concerned about how 175 00:11:46,159 --> 00:11:49,600 these agencies have been set up, because all of the 176 00:11:49,720 --> 00:11:54,320 executive power is with the president. And there's three textual 177 00:11:54,320 --> 00:11:57,720 reasons for that we can talk about briefly in the Constitution. 178 00:11:58,600 --> 00:12:01,840 The first is that the vesting clause of Article two, 179 00:12:02,480 --> 00:12:06,360 that's the clause governing the executive branch, gives all of 180 00:12:06,360 --> 00:12:10,200 the executive power, gives the executive power to a president 181 00:12:10,279 --> 00:12:14,399 of the United States. So that language suggests that the 182 00:12:14,480 --> 00:12:17,279 executive power that the Constitution gives all of it is 183 00:12:17,320 --> 00:12:20,120 given to the president, and so any executive power that 184 00:12:20,159 --> 00:12:25,759 anyone else is exercising is derivative of the president, and 185 00:12:26,960 --> 00:12:30,000 so they're not exercising the powers that come with some 186 00:12:30,039 --> 00:12:33,720 separate office they hold, or some separate executive power they have. 187 00:12:34,080 --> 00:12:38,600 They only have executive power through the president under the Constitution. 188 00:12:40,080 --> 00:12:43,440 The second textual clause of note is the take care clause, 189 00:12:44,200 --> 00:12:46,320 under which the president has a duty to take care 190 00:12:46,360 --> 00:12:49,240 that the laws are faithfully executed. And the thought is 191 00:12:49,320 --> 00:12:51,639 that he can't really take care that the laws are 192 00:12:51,639 --> 00:12:54,519 faithfully executed if he can't remove the people who he 193 00:12:54,600 --> 00:12:57,879 thinks are being faithless or who are not doing what 194 00:12:57,919 --> 00:13:00,000 he thinks needs to be done in order to execute 195 00:13:00,080 --> 00:13:03,200 the law. And that's his duty under the Constitution. So 196 00:13:03,320 --> 00:13:06,320 he needs to be able to control those I like 197 00:13:06,360 --> 00:13:09,279 to call them stubborn subordinates. Needs to be able to 198 00:13:09,279 --> 00:13:13,399 control those folks. The third textual provision that folks point 199 00:13:13,440 --> 00:13:17,000 to is the Appointment's clause itself. And you might say, well, 200 00:13:17,240 --> 00:13:21,600 the Appointment's clause constrains the president in his appointments. So, 201 00:13:21,679 --> 00:13:26,559 for example, in appointing a Federal Reserve Board of Governors member, 202 00:13:26,960 --> 00:13:29,440 the Senate has to approve that the President doesn't just 203 00:13:29,480 --> 00:13:34,639 have unilateral appointment authority. Very true, but the clause and 204 00:13:34,720 --> 00:13:38,480 the Constitution is completely silent about the removal power. And 205 00:13:38,559 --> 00:13:42,679 the idea that many scholars have taken from that is 206 00:13:43,600 --> 00:13:46,720 it's sort of the dog that didn't bark, right. There 207 00:13:46,720 --> 00:13:49,840 are restrictions on the appointment's power. The removal power isn't 208 00:13:49,840 --> 00:13:53,240 mentioned at all. Therefore there aren't any restrictions on the 209 00:13:53,279 --> 00:13:57,039 removal power. So if you put those three textual arguments together, 210 00:13:57,759 --> 00:14:00,720 the president is on pretty strong ground in claiming that 211 00:14:00,759 --> 00:14:05,480 he has the constitutional authority to remove someone, at least 212 00:14:05,480 --> 00:14:09,840 someone who's exercising executive power, as Federal Reserve Board governors 213 00:14:09,879 --> 00:14:10,480 definitely do. 214 00:14:11,080 --> 00:14:15,960 Speaker 1: That's very interesting. Point number two, really I think should 215 00:14:16,039 --> 00:14:19,480 be part of this case, but maybe it isn't in 216 00:14:19,679 --> 00:14:24,200 the narrow tailoring of it. But what happens if you 217 00:14:24,320 --> 00:14:29,360 have someone obnoxious to the agenda of the president? What 218 00:14:29,480 --> 00:14:33,639 if you have someone who is obnoxious to the goals 219 00:14:33,679 --> 00:14:38,120 that the president has set out and is working openly 220 00:14:39,080 --> 00:14:44,759 against the administration. The president has no power, even in 221 00:14:45,279 --> 00:14:48,279 this situation to remove someone like that. And I think, 222 00:14:48,919 --> 00:14:51,720 you know, there is a good body of evidence to 223 00:14:51,799 --> 00:14:56,480 show that Lisa Cook does not share the president's views 224 00:14:56,519 --> 00:15:00,600 on monetary policy as well as a number of different issues. 225 00:15:01,000 --> 00:15:04,879 What does that do to a duly elected, duly elected 226 00:15:04,919 --> 00:15:06,279 president in that case. 227 00:15:07,320 --> 00:15:10,080 Speaker 3: It's a concern, isn't it from a self government standpoint? 228 00:15:10,159 --> 00:15:14,039 Because the president is elected and so to have democratic 229 00:15:14,080 --> 00:15:17,879 accountability we have that over the president. If he makes 230 00:15:17,919 --> 00:15:21,240 appointments that we don't like, then there's at least the opportunity, 231 00:15:22,559 --> 00:15:25,240 maybe not for a lame duck president, but certainly to 232 00:15:25,360 --> 00:15:28,440 penalize his party in Congress during the midterms and so forth. 233 00:15:28,679 --> 00:15:32,120 So there are democratic accountability channels. If you have someone, 234 00:15:32,559 --> 00:15:34,639 whether it's someone at the Federal Reserve or someone at 235 00:15:34,679 --> 00:15:38,639 one of these other independent agencies who's behaving in a 236 00:15:38,720 --> 00:15:41,399 way that's obnoxious to the president, as you put it, 237 00:15:41,759 --> 00:15:44,440 and the president doesn't have control over that person, can't 238 00:15:44,440 --> 00:15:48,159 remove them from office, then where is the self government 239 00:15:48,200 --> 00:15:51,480 in that? Where is the democratic accountability in that? There 240 00:15:51,480 --> 00:15:57,759 really isn't any. And mister Clement, who spoke on behalf 241 00:15:58,080 --> 00:16:00,759 of miss Cook in the oral argument, suggested that, well, 242 00:16:00,759 --> 00:16:04,080 there's always impeachment as a remedy. But I thought this 243 00:16:04,240 --> 00:16:06,720 listener general had a good response to that, which is, well. 244 00:16:06,559 --> 00:16:07,240 Speaker 2: Wait a minute. 245 00:16:07,320 --> 00:16:12,039 Speaker 3: The Constitution specifies impeachment for the removal of federal judges, 246 00:16:12,080 --> 00:16:15,360 but it doesn't talk about that for these other officeholders. 247 00:16:15,399 --> 00:16:18,799 And so you would be restricting the president to something 248 00:16:18,840 --> 00:16:22,720 that the Constitution appears to reserve for people who are 249 00:16:22,759 --> 00:16:26,279 holding lifetime office or who have been elected like the 250 00:16:26,279 --> 00:16:28,960 president or vice president. It's not to say that you 251 00:16:29,000 --> 00:16:33,159 couldn't impeach one of these folks. You could if the 252 00:16:33,200 --> 00:16:36,440 president didn't want to remove someone, for example, and the 253 00:16:36,480 --> 00:16:38,600 House we're willing to impeach them. In two thirds of 254 00:16:38,600 --> 00:16:41,600 the Senate were willing to remove them, that can happen 255 00:16:41,639 --> 00:16:45,799 without the president's assent. But by and large, if you're asking, 256 00:16:46,240 --> 00:16:48,279 if you're trying to say the president can only remove 257 00:16:48,320 --> 00:16:52,200 someone from impeachment, well, what does he do if either 258 00:16:52,240 --> 00:16:54,240 the House or the Senate is in control of the 259 00:16:54,240 --> 00:16:57,159 other party and wants this obnoxious person in office? Well 260 00:16:57,240 --> 00:16:59,120 that now he has no way of removing them, And 261 00:16:59,120 --> 00:17:02,840 that doesn't it doesn't really seem consistent with him exercising 262 00:17:02,879 --> 00:17:05,640 his duty to take care. 263 00:17:05,480 --> 00:17:07,079 Speaker 2: That the law is faithfully executed. 264 00:17:07,559 --> 00:17:11,319 Speaker 1: Yeah, no doubt about that. You mentioned an interesting name 265 00:17:11,480 --> 00:17:12,720 to me. I want to get to that in just 266 00:17:12,759 --> 00:17:13,160 a moment. 267 00:17:16,079 --> 00:17:19,279 Speaker 4: Do not believe government numbers? The watch doot Own Wall 268 00:17:19,319 --> 00:17:22,599 Street podcast with Chris Markowski. Every day Chris helps unpack 269 00:17:22,640 --> 00:17:25,000 the connection between politics and the economy and how it 270 00:17:25,000 --> 00:17:29,200 affects your wallet. It's not just about the CPI inflation numbers. 271 00:17:29,400 --> 00:17:32,359 Government is now saying health insurance is down by nineteen 272 00:17:32,400 --> 00:17:34,319 percent over the last five years. 273 00:17:34,480 --> 00:17:36,119 Speaker 2: Does anybody believe that. 274 00:17:36,079 --> 00:17:38,160 Speaker 4: Whether it's happening in DC or down on Wall Street, 275 00:17:38,160 --> 00:17:39,359 it's affecting you financially? 276 00:17:39,440 --> 00:17:39,960 Speaker 2: Be informed? 277 00:17:40,000 --> 00:17:42,160 Speaker 4: Check out the watchdod on Wall Street podcast with Chris 278 00:17:42,200 --> 00:17:45,079 Markowski on Apple, Spotify, or wherever you get your podcast. 279 00:17:47,359 --> 00:17:51,240 Speaker 1: Mark Jenowith is president of the New Civil Liberties Alliance. 280 00:17:51,680 --> 00:17:55,240 He joins us on this edition of the Federalist Radio Hour. 281 00:17:55,920 --> 00:17:59,759 Is it Paul Clement who was arguing for Lisa Cook 282 00:18:00,079 --> 00:18:01,079 for the Supreme Court? 283 00:18:01,960 --> 00:18:05,240 Speaker 3: Yes, it was, and uh, you know, love love Paul. 284 00:18:05,559 --> 00:18:09,480 He Uh, we worked with him. He was the council 285 00:18:09,519 --> 00:18:11,759 for Loper Bright in the Loper Bright case and we 286 00:18:11,799 --> 00:18:14,039 had the Relentless case and in the pair of cases 287 00:18:14,039 --> 00:18:18,000 that overturned Chevron deference. Very good attorney. Well, I'm sure 288 00:18:18,319 --> 00:18:20,039 we'll work with him. Well, actually we are working with 289 00:18:20,119 --> 00:18:22,880 him on something else right now. Uh, but in this 290 00:18:22,920 --> 00:18:25,640 particular case we were we were on opposite sides of 291 00:18:25,640 --> 00:18:26,240 the issue. 292 00:18:26,440 --> 00:18:28,960 Speaker 1: It is interesting to me because he he was the 293 00:18:29,000 --> 00:18:31,880 former solicitor general for the President Joe Biden. 294 00:18:31,880 --> 00:18:35,079 Speaker 2: Correct, oh, not Biden for for George. 295 00:18:35,039 --> 00:18:39,039 Speaker 1: Excuse for George W. Bush. Yes, I apologize for that. Uh, 296 00:18:39,119 --> 00:18:44,440 and but it's it's interesting to me that uh Clement 297 00:18:44,680 --> 00:18:47,480 was also recently I think he still is on the 298 00:18:47,559 --> 00:18:53,200 legal team representing the judge in Milwaukee County, Hannah Dugan. 299 00:18:53,880 --> 00:18:54,000 Speaker 2: UH. 300 00:18:54,200 --> 00:19:01,079 Speaker 1: If you recall, Hannah Dugan was indicted effectively for aiding 301 00:19:01,200 --> 00:19:04,480 and abetting or interfering at the very least with the 302 00:19:04,559 --> 00:19:09,759 federal law enforcement agents in Ice in UH, you know, 303 00:19:10,480 --> 00:19:16,359 basically allowing a an a legal immigrant near her court 304 00:19:16,519 --> 00:19:21,799 or in her court to escape ICE custody. And the 305 00:19:22,039 --> 00:19:27,079 argument that that legal team had was, well, the judge 306 00:19:27,119 --> 00:19:31,960 is immune from from any anything that that involves her court, 307 00:19:32,519 --> 00:19:36,519 and that includes interfering in the you know, the federal 308 00:19:37,279 --> 00:19:43,359 law enforcement officials duties. Well, again, she was indicted, and 309 00:19:43,400 --> 00:19:48,960 a federal jury in December convicted her of that particular charge, 310 00:19:49,799 --> 00:19:54,160 arguing that she did not have the authority uh to 311 00:19:54,359 --> 00:20:01,839 claim those sorts of things, submit that there certainly was 312 00:20:01,960 --> 00:20:06,240 cause to remove her from the bench. There certainly was 313 00:20:06,680 --> 00:20:14,000 cause to indict her. But it's interesting that that that 314 00:20:14,119 --> 00:20:19,680 you have Paul Clement making these these claims that cause 315 00:20:20,480 --> 00:20:22,480 has to be there has to be a process for 316 00:20:22,599 --> 00:20:25,359 this involving the case with Lisa Cook. 317 00:20:26,519 --> 00:20:29,200 Speaker 3: Well, I think that's just a function of Paul as 318 00:20:29,240 --> 00:20:33,720 an excellent, highly paid advocate who you know, I'm sure 319 00:20:33,720 --> 00:20:34,880 has been hired in both. 320 00:20:34,720 --> 00:20:37,319 Speaker 2: Cases to to do what he does so well. 321 00:20:37,359 --> 00:20:40,799 Speaker 3: And I don't, you know, unlike a public interest group 322 00:20:40,880 --> 00:20:43,880 like in c l A, we probably can't ask lawyers 323 00:20:43,920 --> 00:20:48,480 in private practice to always be on the same side of, 324 00:20:48,680 --> 00:20:53,240 you know, some some set of set of issues. I 325 00:20:53,279 --> 00:20:57,240 haven't followed that particular case very you know, very closely, 326 00:20:57,839 --> 00:20:59,039 but but I. 327 00:20:59,000 --> 00:20:59,799 Speaker 2: Do think that. 328 00:21:01,839 --> 00:21:03,880 Speaker 3: Though I think he did a fine job at the 329 00:21:03,920 --> 00:21:09,119 oral argument, I think some of the post argument commentary 330 00:21:09,119 --> 00:21:11,279 has suggested that the Court might be leaning his way 331 00:21:11,279 --> 00:21:14,079 in the Cook. In the Cook case, I hope that 332 00:21:14,160 --> 00:21:17,200 proves not to be true, both because I think that 333 00:21:17,279 --> 00:21:23,240 it might prompt the President to challenge the constitutionality of 334 00:21:23,279 --> 00:21:25,759 the fore cause standard, and because I think if the 335 00:21:25,799 --> 00:21:29,480 Court were to say, look, the fore cost standard requires 336 00:21:30,319 --> 00:21:34,720 or limits you to firing someone for reasons of say inefficiency, 337 00:21:35,240 --> 00:21:38,920 neglect of duty, or malfeasance in office, which is a standard, 338 00:21:39,000 --> 00:21:43,880 by the way, that other agencies have, but that's not 339 00:21:44,000 --> 00:21:46,759 the standard that applies to Federal Reserve Board of Governors. 340 00:21:46,960 --> 00:21:48,480 If they were to say if they were to import 341 00:21:48,480 --> 00:21:51,440 that here and imply that, I would be concerned, both 342 00:21:51,519 --> 00:21:53,960 because I think that would essentially be the Supreme Court 343 00:21:54,079 --> 00:21:57,279 legislating from the bench and creating a standard that wasn't 344 00:21:57,279 --> 00:22:00,880 created by Congress, and because I think that would tie 345 00:22:00,880 --> 00:22:06,079 the President's hands too much in terms of his ability 346 00:22:06,119 --> 00:22:09,599 to remove someone like Lisa Cook. I mean, we're talking 347 00:22:09,640 --> 00:22:13,319 about the independence of the Fed being important, and I 348 00:22:13,359 --> 00:22:16,079 know a lot of folks think about the interest rates 349 00:22:16,119 --> 00:22:20,000 setting function that they have the sort of the open 350 00:22:20,000 --> 00:22:23,319 market function that the Federal Reserve has, And that's true, 351 00:22:23,799 --> 00:22:27,319 and maybe arguably we want to enter into some sort 352 00:22:27,359 --> 00:22:31,160 of Ulysses contract that sort of prevents Congress and the 353 00:22:31,160 --> 00:22:34,559 President from playing with interest rates in a way that 354 00:22:34,680 --> 00:22:38,240 might lead to inflation. But even if we were to 355 00:22:38,759 --> 00:22:42,759 agree on that point, and obviously not everyone does, it's 356 00:22:42,799 --> 00:22:44,920 still the case that the Federal Reserve has a bunch 357 00:22:45,000 --> 00:22:50,640 of regulatory responsibilities like regulating credit card companies, regulating banks, 358 00:22:50,960 --> 00:22:55,000 and it writes ordinary regulations just like other agencies do, 359 00:22:55,799 --> 00:22:58,119 and at least in that part of what it does, 360 00:22:58,200 --> 00:23:01,119 the President certainly needs to be in a position to 361 00:23:01,559 --> 00:23:06,799 oversee that regulation and discipline folks, including up to removal 362 00:23:06,839 --> 00:23:10,920 of folks who aren't in line with the priorities and 363 00:23:11,519 --> 00:23:13,920 policies of his administration. 364 00:23:14,279 --> 00:23:15,599 Speaker 2: And again, if he doesn't. 365 00:23:15,319 --> 00:23:19,079 Speaker 3: Have that ability, then we then we've gotten rid of 366 00:23:19,079 --> 00:23:21,880 self government, and I don't think that's where we want 367 00:23:21,920 --> 00:23:22,119 to be. 368 00:23:22,720 --> 00:23:25,640 Speaker 1: I think that's a great point. If you want to 369 00:23:25,839 --> 00:23:31,519 divorce those two things, the federal regulation from the monetary policy, 370 00:23:31,599 --> 00:23:33,839 and what the Board is set up to do and 371 00:23:33,880 --> 00:23:35,960 what the Reserve is set up to do is to 372 00:23:36,000 --> 00:23:40,680 do a lot of things, then Congress has the responsibility 373 00:23:41,079 --> 00:23:44,119 of taking those two things and separating them and putting 374 00:23:44,200 --> 00:23:47,839 someone under the executive branch. And then I know there 375 00:23:47,839 --> 00:23:50,599 are other questions involving that, but you raise a good point. 376 00:23:51,039 --> 00:23:54,880 Justice Amy Cony. Barrett cited issues as you mentioned, with 377 00:23:55,079 --> 00:23:59,240 public confidence. Should the president be cleared to fire a 378 00:23:59,319 --> 00:24:03,440 sitting governor without fully explaining or justifying the reasons. I 379 00:24:03,480 --> 00:24:06,200 think he has explained and I think he has justified 380 00:24:06,200 --> 00:24:08,319 the reasons, which you'll get into in just a moment, 381 00:24:08,359 --> 00:24:13,839 But this is what Barrett said. We have Amikas Brieves 382 00:24:13,880 --> 00:24:17,680 from economist who tell us that if Cook is fired 383 00:24:18,160 --> 00:24:21,480 then it can trigger a recession. How should we think 384 00:24:21,519 --> 00:24:24,759 about the public interest in a case like this, I'll 385 00:24:24,799 --> 00:24:29,680 ask you that same question, but I'll also already point 386 00:24:29,680 --> 00:24:32,880 to a follow up question, and that is, is that 387 00:24:33,359 --> 00:24:37,000 the business of the court to consider? 388 00:24:39,279 --> 00:24:41,480 Speaker 3: Well, I think this listener general's response to that question, 389 00:24:41,599 --> 00:24:45,440 if I remember correctly, was to point out that when 390 00:24:46,160 --> 00:24:49,799 President Trump first fired Lisa Cook back in August, I 391 00:24:49,839 --> 00:24:52,160 believe it was that the market went up for three 392 00:24:52,200 --> 00:24:58,160 straight days after that. So, just from a yeah, empirical standpoint, 393 00:24:58,200 --> 00:25:01,759 this listener General was suggesting, maybe markets aren't so concerned 394 00:25:01,759 --> 00:25:05,000 about the President being able to remove one of the 395 00:25:05,039 --> 00:25:07,880 fifteen members of the Federal Reserve Board. 396 00:25:07,960 --> 00:25:11,000 Speaker 2: After all, it's not the case that. 397 00:25:11,000 --> 00:25:14,920 Speaker 3: Removing one Federal Reserve Board governor is going to tip 398 00:25:14,960 --> 00:25:19,000 the scales on what we're doing with interest rate setting. 399 00:25:19,359 --> 00:25:21,799 You know, if he were, for example, threatening to fire 400 00:25:22,440 --> 00:25:25,519 ten of them and replace them all with his acolytes 401 00:25:25,599 --> 00:25:28,880 or something like that, maybe the concern that she stated 402 00:25:29,000 --> 00:25:33,160 would would be more on point. But I'm not so 403 00:25:33,440 --> 00:25:38,240 sure that removing just one governor from a multi from 404 00:25:38,279 --> 00:25:41,319 a very large, multi member board is going to have 405 00:25:41,960 --> 00:25:44,599 that impact as to whether the Court should take such 406 00:25:44,920 --> 00:25:51,160 prudential concerns into account. You could argue that they shouldn't, 407 00:25:51,240 --> 00:25:53,559 but the reality is that they will and that they do. 408 00:25:54,279 --> 00:25:57,000 And so I think as an advocate one has to 409 00:25:57,039 --> 00:26:02,559 be prepared to counter those prudential concerns. And for me, 410 00:26:03,039 --> 00:26:06,799 the solicitor Solicitor General John Sower did a pretty good 411 00:26:06,880 --> 00:26:09,640 job of that. He pointed out that plenty of people 412 00:26:09,680 --> 00:26:12,960 would be concerned if she stayed or continues to stay, 413 00:26:13,079 --> 00:26:15,640 on the Board of Governors. Why should we have someone 414 00:26:15,720 --> 00:26:20,119 on there setting our interest rates who lied in a 415 00:26:20,160 --> 00:26:23,880 mortgage application in order to secure a more favorable interest 416 00:26:23,960 --> 00:26:28,880 rate for herself. That does seem to set up the possibility. 417 00:26:28,160 --> 00:26:30,839 Speaker 2: Of a rule for thee but not for me. 418 00:26:31,079 --> 00:26:34,400 Speaker 3: Kind of situation that, frankly, is exactly the kind of 419 00:26:34,400 --> 00:26:37,440 attitude that got President Trump elected by the masses to 420 00:26:37,480 --> 00:26:40,839 begin with. So you can understand why he might take 421 00:26:40,880 --> 00:26:45,440 a particular viewpoint toward that. And as a colleague of 422 00:26:45,480 --> 00:26:50,880 mind pointed out today, the case that Letitia James brought 423 00:26:50,880 --> 00:26:52,920 against President Trump up in New York. 424 00:26:52,920 --> 00:26:56,200 Speaker 2: Yes, it was similar to this. 425 00:26:56,240 --> 00:26:59,559 Speaker 3: They said, well, you had missed you had information that 426 00:26:59,640 --> 00:27:03,119 was in accurate in your application. His response was, well, 427 00:27:03,640 --> 00:27:06,519 I the bank was never misled. The bank did its 428 00:27:06,519 --> 00:27:09,000 own due diligence. The bank had a full understanding of this, 429 00:27:09,400 --> 00:27:11,559 and in his case, the bank even testified to that 430 00:27:11,599 --> 00:27:17,440 effect that they were not misled. And and so, you know, 431 00:27:17,599 --> 00:27:20,599 none nonetheless, now that case is on appeal, But nonetheless, 432 00:27:20,599 --> 00:27:23,119 he had a five hundred million dollar judgment or something 433 00:27:23,160 --> 00:27:25,039 like that against him in the at least in the 434 00:27:25,039 --> 00:27:27,799 trial court. And I know that the Court of Appeals 435 00:27:27,799 --> 00:27:31,160 had a sort of a strange mixed response to that, 436 00:27:31,279 --> 00:27:36,079 but but but largely favorable to him. 437 00:27:36,680 --> 00:27:37,640 Speaker 2: And you know, he. 438 00:27:37,559 --> 00:27:40,279 Speaker 3: May look at the situation with Lisa Cook and think, well, gosh, 439 00:27:40,279 --> 00:27:46,400 that looks a lot like what was considered inappropriate by 440 00:27:46,960 --> 00:27:49,319 you know, by this other in this other instance where 441 00:27:49,319 --> 00:27:51,640 where I was involved. If if you know, if I'm 442 00:27:51,640 --> 00:27:53,920 going to get slapped down for that, why shouldn't she 443 00:27:53,960 --> 00:27:55,960 get slapped down for that? And I don't know that 444 00:27:55,960 --> 00:27:58,799 that's what his thought process was. He hasn't said that. 445 00:27:58,880 --> 00:28:00,480 I haven't, you know, I don't. And to be able 446 00:28:00,480 --> 00:28:01,920 to read the president's mind. 447 00:28:01,960 --> 00:28:03,119 Speaker 1: I think there's some of that there. 448 00:28:04,400 --> 00:28:06,839 Speaker 3: Yeah, it's you know, it's not crazy to think that 449 00:28:06,839 --> 00:28:10,400 that he might be particularly sensitive to this kind of 450 00:28:11,400 --> 00:28:12,279 this kind of violation. 451 00:28:12,839 --> 00:28:14,559 Speaker 1: Yeah, no doubt about it. There's a lot of that 452 00:28:15,799 --> 00:28:20,200 for thee not for me going around, including with Letitia James, 453 00:28:20,200 --> 00:28:24,400 serious allegations against her. Whether that'll be revisited or not, 454 00:28:24,799 --> 00:28:28,160 it remains to be seen. But Lisa Cook is charged 455 00:28:28,200 --> 00:28:32,920 with some very serious things and it's not let's put 456 00:28:32,920 --> 00:28:38,920 it in perspective too, she's charged with fraud, a financial fraud. 457 00:28:39,920 --> 00:28:44,680 She is not working in well to think of any 458 00:28:44,759 --> 00:28:49,119 number of positions where that isn't a primary concern. 459 00:28:49,480 --> 00:28:50,920 Speaker 2: National Park Service. 460 00:28:52,079 --> 00:28:55,519 Speaker 1: Exactly exactly unless you're dealing with an auditor or you know, 461 00:28:55,759 --> 00:28:59,000 an accountant or something like that. But yeah, someone in 462 00:28:59,000 --> 00:29:01,960 the National Park Service does not have the same kind 463 00:29:02,000 --> 00:29:06,960 of causal issues on that front. This clearly is a 464 00:29:07,000 --> 00:29:11,359 matter of cause. Although the argument is she hasn't had 465 00:29:11,519 --> 00:29:16,400 her time in court or a hearing to explain herself. 466 00:29:16,519 --> 00:29:19,160 And I guess that's the question, and that's the question 467 00:29:19,359 --> 00:29:25,240 the Supreme Court is dealing with. Is that a necessary requirement? 468 00:29:25,720 --> 00:29:26,880 And what do you think about that? 469 00:29:27,559 --> 00:29:27,799 Speaker 2: Right? 470 00:29:28,039 --> 00:29:30,720 Speaker 3: Does she get a notice and a hearing is another 471 00:29:30,759 --> 00:29:35,079 way of asking that question in and the statute doesn't 472 00:29:35,160 --> 00:29:37,720 say that. The statute says that the President can fire 473 00:29:37,759 --> 00:29:40,839 her fore cause it does not require notice and a hearing. 474 00:29:41,160 --> 00:29:41,720 Speaker 2: Now there's an. 475 00:29:41,720 --> 00:29:47,319 Speaker 3: Argument over whether the traditional restriction of four cause sort 476 00:29:47,319 --> 00:29:49,759 of brings with it. They talk in the oral argument 477 00:29:49,799 --> 00:29:53,759 about the old soil of that sort of that sort 478 00:29:53,759 --> 00:29:58,839 of of provision bringing, you know, coming along with it 479 00:29:58,920 --> 00:30:01,559 the idea of notice in comment. But certainly the text 480 00:30:01,599 --> 00:30:04,279 of the statute not notice in common notice in hearing. 481 00:30:04,559 --> 00:30:08,880 The statute doesn't doesn't buy its text require notice in hearing. 482 00:30:09,720 --> 00:30:13,440 And so unless the constitution requires notice in hearing because 483 00:30:13,480 --> 00:30:15,960 she has a property interest in the office, and due 484 00:30:15,960 --> 00:30:20,680 process requires her to have a due process which would 485 00:30:20,759 --> 00:30:23,480 usually be thought to include a hearing before being deprived 486 00:30:23,480 --> 00:30:26,799 of the office, I don't know that she has a 487 00:30:26,839 --> 00:30:29,079 lot of ground to stand on now. That said that, 488 00:30:29,240 --> 00:30:32,119 justices were not impressed with the idea that a truth 489 00:30:32,240 --> 00:30:36,519 social post was sufficient notice to her. They seemed to 490 00:30:37,160 --> 00:30:41,960 prefer something more formal than that. Whether the whether they're 491 00:30:42,000 --> 00:30:46,200 just behind the times and a social media post is 492 00:30:46,319 --> 00:30:50,200 sufficient notice, you know, I think is a close question. 493 00:30:50,519 --> 00:30:51,839 Speaker 2: I think it would be better. 494 00:30:51,599 --> 00:30:54,880 Speaker 3: To send us some sort of a formal letter to someone. 495 00:30:55,880 --> 00:30:59,519 And then the question is did she have an adequate 496 00:30:59,519 --> 00:31:04,319 opportunity unity to respond to those charges within the five 497 00:31:04,359 --> 00:31:06,680 I think it was five days between the truth social 498 00:31:06,720 --> 00:31:13,240 post and his his ordering that that she be fired. Uh, 499 00:31:13,279 --> 00:31:16,359 And in what way would she respond to that? Would 500 00:31:16,400 --> 00:31:19,880 she would she posts something on social media herself. At 501 00:31:19,920 --> 00:31:22,000 no point was she apparently called to the White House 502 00:31:22,079 --> 00:31:25,079 for a face to face meeting. And you know, I 503 00:31:25,559 --> 00:31:32,079 joke with someone on my Unwritten Law podcast that you 504 00:31:32,079 --> 00:31:33,960 you could you could see a situation kind of a 505 00:31:33,960 --> 00:31:37,839 celebrity apprentice table where where President Trump brought someone in 506 00:31:37,880 --> 00:31:40,680 and gave them, uh, some period of time to defend 507 00:31:40,680 --> 00:31:43,079 themselves from the from the charges, and then said, Okay, 508 00:31:43,720 --> 00:31:47,240 well you're fired. That's not good enough for me. Chief 509 00:31:47,319 --> 00:31:51,160 Justice Roberts in the oral argument, asked the question, well, 510 00:31:51,200 --> 00:31:54,960 sort of, what's the point of requiring that because it's 511 00:31:55,000 --> 00:31:58,880 not as she's not contesting the fact of what she did. 512 00:31:58,960 --> 00:32:02,920 She's contesting whether she did it with fraudulent intent. She's 513 00:32:02,920 --> 00:32:04,720 saying it was a you know, it was sort of 514 00:32:04,759 --> 00:32:08,599 a paperwork air. It was something that an oversight, not 515 00:32:08,720 --> 00:32:13,200 something that she did deliberately. But she's not contesting that 516 00:32:13,279 --> 00:32:16,319 for example, the document is forged or that's not her signature, 517 00:32:16,400 --> 00:32:19,119 or she never bought that property or or she didn't 518 00:32:19,160 --> 00:32:23,039 check that box that that indicated that it was a 519 00:32:23,079 --> 00:32:27,920 primary residence. So there's not really a lot of facts 520 00:32:28,000 --> 00:32:31,920 to be sorted through. And then you know, she might 521 00:32:31,960 --> 00:32:35,319 have some legal arguments about how relevant those facts should 522 00:32:35,319 --> 00:32:37,960 be to the question of her removal. But who's the 523 00:32:38,000 --> 00:32:41,359 decision maker there, and isn't it ultimately the president if 524 00:32:41,359 --> 00:32:45,799 you have a four cause removal standard. Some folks are 525 00:32:45,799 --> 00:32:49,480 trying to say, well, this was pre office conduct, and 526 00:32:50,160 --> 00:32:53,720 anything that's preoffice conduct is not a reason that you 527 00:32:53,759 --> 00:32:56,920 can be removed. Justice Alito had some fun without it 528 00:32:57,000 --> 00:32:59,680 the oral argument. He sort of trotted out a bunch 529 00:32:59,680 --> 00:33:03,720 of high patheticals of different things that might be preoffice 530 00:33:03,759 --> 00:33:06,200 conduct that you really want to take the position that 531 00:33:06,240 --> 00:33:09,960 someone can't be fired for, you know, this parade of horribles, 532 00:33:10,960 --> 00:33:13,279 and I think you get to the point pretty quickly 533 00:33:13,279 --> 00:33:16,200 where you realize, eh, we can't say that you could 534 00:33:16,240 --> 00:33:21,599 never be removed for preoffice conduct. I think what some 535 00:33:21,640 --> 00:33:24,000 folks have said, and I think this is somewhat compelling, 536 00:33:24,519 --> 00:33:26,960 is look, if this is something that was disclosed to 537 00:33:27,079 --> 00:33:30,119 the Senate, and the President knew it when he appointed you, 538 00:33:30,160 --> 00:33:32,599 and the Senate knew it when they confirmed you, then 539 00:33:32,640 --> 00:33:37,079 maybe an subsequent president can't reltigate those facts and fire 540 00:33:37,160 --> 00:33:40,559 you for that pre office conduct. But the idea that 541 00:33:40,599 --> 00:33:43,279 there's no preoffice conduct for which you can be removed 542 00:33:43,319 --> 00:33:45,599 from office, I think that's a bridge too far, and 543 00:33:45,960 --> 00:33:47,839 I don't think the Supreme Court's going to say that. 544 00:33:48,319 --> 00:33:52,839 Speaker 1: Yeah, I believe cause too can include incompetence. And I 545 00:33:52,880 --> 00:33:57,400 think if you are caught making such grievous mistakes on 546 00:33:57,440 --> 00:34:01,759 your mortgage forms as someone who wants to be a 547 00:34:01,799 --> 00:34:09,119 governor on the board of Reserve, and I think one 548 00:34:09,159 --> 00:34:12,199 could ask some questions are you capable of doing the job? 549 00:34:12,320 --> 00:34:15,119 And this shows you're not? And there is cause right there. 550 00:34:15,519 --> 00:34:17,679 All of that said, I think Trump probably should have 551 00:34:17,760 --> 00:34:21,760 just sent his truth social post via facts to her 552 00:34:21,800 --> 00:34:25,079 and then that would have accounted for a formal document. 553 00:34:25,159 --> 00:34:29,079 Final question for I really appreciate your perspective, your expertise. 554 00:34:29,159 --> 00:34:30,960 Speaker 3: Can you can I just jump into say, yeah, yeah, 555 00:34:31,239 --> 00:34:34,599 say one thing, which is you're exactly right about that 556 00:34:35,079 --> 00:34:37,800 point and on negligence, and that is in fact, what 557 00:34:37,880 --> 00:34:40,440 the argument of this Solicitor general was. He wasn't saying 558 00:34:40,480 --> 00:34:43,039 she committed fraud. He said, look this, even if this 559 00:34:43,159 --> 00:34:46,480 is gross negligence. That's enough for the president. 560 00:34:46,079 --> 00:34:49,800 Speaker 2: To fire her. And that's what we are assuming occurred here, 561 00:34:49,840 --> 00:34:52,079 and that's why he wants to remove her. 562 00:34:52,840 --> 00:34:57,440 Speaker 1: Every headline I read from you know, the usual suspects 563 00:34:57,480 --> 00:35:00,400 in corporate media is something to the effort fact that 564 00:35:00,599 --> 00:35:06,840 justice is reluctant to side with Chump Trump. Justices won't 565 00:35:06,840 --> 00:35:10,639 be ciding with Trump. Looks like Lisa Cook, her goose 566 00:35:10,719 --> 00:35:15,559 isn't cooked. Whatever whatever it is they believe. At least, 567 00:35:15,599 --> 00:35:20,079 the stories push the idea that there's no way that 568 00:35:20,159 --> 00:35:24,840 this court is going to even this narrow Tarler tailoring 569 00:35:24,960 --> 00:35:30,400 is going to allow the president to fire this this 570 00:35:30,480 --> 00:35:32,880 governor of the Federal Reserve. What do you think ultimately 571 00:35:32,920 --> 00:35:33,639 will happen here? 572 00:35:34,440 --> 00:35:36,280 Speaker 3: Well, it's certainly true that the tenor of the oral 573 00:35:36,360 --> 00:35:38,559 argument was very different than the tenor of the oral 574 00:35:38,599 --> 00:35:41,559 argument in last month's trumpvi's Slaughter case about whether he 575 00:35:41,639 --> 00:35:45,559 can fire Rebecca Slaughter from the Federal Trade Commission. I 576 00:35:45,559 --> 00:35:48,719 think most of the commentary was the other way. After 577 00:35:48,760 --> 00:35:51,119 that oral argument, it really sounded like the court was 578 00:35:51,199 --> 00:35:57,440 going to let the president fire her. And interestingly, the 579 00:35:57,679 --> 00:36:01,679 standard there isn't isn't just cause it is a sort 580 00:36:01,679 --> 00:36:07,079 of an inefficiency, neglect of duty, and malfeasance kind of 581 00:36:07,880 --> 00:36:12,480 kind of standard there. But they seemed comfortable with letting 582 00:36:12,519 --> 00:36:15,239 him fire Slaughter. As I say, the tenor was very 583 00:36:15,280 --> 00:36:18,400 different with Cook. The Federal Reserve is different apparently in 584 00:36:18,440 --> 00:36:21,239 the eyes of many of the justices, perhaps all of 585 00:36:21,280 --> 00:36:24,800 the justices, and so you didn't get the same sense 586 00:36:24,840 --> 00:36:28,559 that they were ready to go along with the president 587 00:36:28,599 --> 00:36:33,159 firing her without without saying anything else. But I also 588 00:36:33,320 --> 00:36:36,480 heard a real desire to do something more limited in 589 00:36:36,559 --> 00:36:40,880 this case that might involve not reaching the substantive constitutional 590 00:36:40,960 --> 00:36:43,760 question either because they take that off ramp and say, look, 591 00:36:44,039 --> 00:36:46,480 the district judge here issued to stay. 592 00:36:46,599 --> 00:36:47,679 Speaker 2: That's not allowed. 593 00:36:47,800 --> 00:36:50,039 Speaker 3: You can't you know, you can't join the president. You 594 00:36:50,039 --> 00:36:54,960 can't stop this kind of of firing. You know, in progress, 595 00:36:55,480 --> 00:36:59,320 the remedy is only ex post. They might say something 596 00:36:59,360 --> 00:37:02,960 like that, or they might say something like, look, there 597 00:37:03,079 --> 00:37:05,639 wasn't enough You know, we're not saying the president can't 598 00:37:05,679 --> 00:37:09,119 fire her. We're just saying there wasn't enough notice and 599 00:37:09,199 --> 00:37:11,360 hearing here. This is what we think the notice needs 600 00:37:11,440 --> 00:37:12,840 to look like. This is what we think the hearing 601 00:37:12,880 --> 00:37:15,039 needs to look like. If the president wants to go 602 00:37:15,119 --> 00:37:18,320 back to square one and provide notice and provide a hearing, 603 00:37:18,360 --> 00:37:21,440 and then we will have a different question in front 604 00:37:21,440 --> 00:37:23,840 of us. I don't know that they'll do that, because 605 00:37:23,840 --> 00:37:25,920 I think it would be a little bit pointless. At 606 00:37:26,000 --> 00:37:28,599 least the Chief Justice seemed to indicate that. But that 607 00:37:28,639 --> 00:37:31,519 would be another way that would maybe buy them some 608 00:37:31,679 --> 00:37:35,079 time or let them not reach the substance of it, 609 00:37:35,880 --> 00:37:38,880 or they might just say, look, we're going to let 610 00:37:38,880 --> 00:37:43,239 this particular firing happen. But we're doing that because we 611 00:37:43,320 --> 00:37:47,960 think that the four cause was followed here. And what 612 00:37:48,000 --> 00:37:51,159 we're saying is that this is justiciable. The question of 613 00:37:51,239 --> 00:37:54,480 whether four cause was followed or not isn't something that 614 00:37:54,519 --> 00:37:57,480 we're just going to say is beyond the kin of 615 00:37:57,519 --> 00:38:00,920 the judiciary. We actually think people can bring these cases 616 00:38:01,639 --> 00:38:04,840 if you know, if if the four cause provision hasn't 617 00:38:04,840 --> 00:38:10,119 been honored, and and sort of throwing down a gauntlet, 618 00:38:10,119 --> 00:38:14,000 if you will, for future cases, sort of telling the administration, look, 619 00:38:14,000 --> 00:38:15,719 we're not just going to let you come up with 620 00:38:15,760 --> 00:38:20,800 pretextual reasons for for firing someone for cause, but we 621 00:38:20,840 --> 00:38:23,719 are going to let you do this one. And so 622 00:38:23,800 --> 00:38:26,320 that might be another way that it would that it 623 00:38:26,360 --> 00:38:31,039 would come out. You know, I I'll be very surprised 624 00:38:31,159 --> 00:38:34,159 if if the Slaughter case comes out not allowing the 625 00:38:34,199 --> 00:38:37,440 firing there. But I'll be a little bit surprised in 626 00:38:37,480 --> 00:38:40,480 the cookcase if they don't let him fire Cook too. 627 00:38:40,559 --> 00:38:44,800 I just I heard something closer to a desire for 628 00:38:44,880 --> 00:38:48,400 a limited outcome for now among the justices. 629 00:38:48,840 --> 00:38:49,960 Speaker 2: And I don't know that. 630 00:38:50,400 --> 00:38:52,440 Speaker 3: It was hard to hard to find five votes for 631 00:38:52,480 --> 00:38:55,800 any one outcome, but it certainly didn't sound like they 632 00:38:55,840 --> 00:39:00,400 were overly eager to to settle the constitutional quite in 633 00:39:00,440 --> 00:39:03,440 a case where the president seemed to be following the 634 00:39:03,440 --> 00:39:07,559 statute or certainly claimed to be following his statutory authority. 635 00:39:08,719 --> 00:39:11,079 Speaker 1: Very interesting. I say this every year. I've said this 636 00:39:11,159 --> 00:39:15,480 the last several years. This is an unprecedented year for 637 00:39:15,519 --> 00:39:19,679 the Supreme Court. It seems like every year is unprecedented, 638 00:39:20,239 --> 00:39:23,480 very fascinating stuff. We'll be keeping an eye on this, 639 00:39:24,000 --> 00:39:27,159 I know you folks at the New Civil Liberties Alliance 640 00:39:27,239 --> 00:39:28,760 will be. For sure. 641 00:39:29,400 --> 00:39:30,480 Speaker 2: We love these cases. 642 00:39:30,719 --> 00:39:33,360 Speaker 3: I like to say that we've we've been making Administrative 643 00:39:33,440 --> 00:39:37,639 Law Fund since twenty seventeen, and folks are welcome to 644 00:39:38,000 --> 00:39:40,519 go to our website at NCLA Legal dot Org and 645 00:39:40,639 --> 00:39:43,559 learn more about our brief in this case and the 646 00:39:43,559 --> 00:39:46,400 other cases that we've been working on, sometimes for the administration, 647 00:39:46,519 --> 00:39:47,760 sometimes against the administration. 648 00:39:48,079 --> 00:39:49,960 Speaker 1: Now you have a T shirt or a bumper sticker 649 00:39:50,000 --> 00:39:50,679 that says. 650 00:39:50,440 --> 00:39:52,519 Speaker 2: That not yet, but we need one, don't we? 651 00:39:52,880 --> 00:39:55,199 Speaker 1: I think so that would be great. Thanks to my 652 00:39:55,280 --> 00:39:59,480 guest today, Mark Jenowith, president of the New Civil Liberties Alliance, 653 00:40:00,079 --> 00:40:02,880 listening to another edition of the Federalist Radio Hour. I'm 654 00:40:02,880 --> 00:40:06,559 Matt Kittle's senior elections correspondent at the Federalist. We'll be 655 00:40:06,599 --> 00:40:10,679 back soon with more. Until then, stay lovers of freedom 656 00:40:10,719 --> 00:40:12,119 and anxious for the frame