Legal Breakdown episode 483: @GlennKirschner2 discusses Trump losing another federal case with SCOTUS implications.
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00:00You're watching The Legal Breakdown.
00:01Glenn, we've got a major court ruling against Donald Trump definitively, which you'll talk
00:06about in a moment, one that is going to eventually find its way up to the U.S. Supreme Court.
00:10Can you explain what just happened?
00:11Yeah, Brian, very quickly.
00:13This case just got teed up to be a major case before the Supreme Court in the very near
00:19future.
00:20And here's why.
00:22You know, there have been a series of firings by Donald Trump that have been flat out unlawful.
00:28And you don't have to take my word for it, because just as in the case we're about to
00:33discuss, Trump's DOJ lawyers are actually going into court and admitting they are unlawful.
00:40But they're saying, we think the Constitution ought to be changed and not give Congress
00:47the authority to pass laws that set fixed terms for executive branch employees and say
00:55that those people cannot be fired on a whim by an incoming president.
01:00They can only be fired for good cause, for neglect of duty, for malfeasance in office,
01:07and they can only be fired after notice and a hearing.
01:12But lately, Brian, Donald Trump has been firing people on a whim, not for good cause and without
01:19giving them the required opportunity for notice and a hearing on the issue of their
01:26proposed determination.
01:28So in this case, it is a case that was brought by a woman who had just been fired by Trump
01:34unceremoniously, no notice, no hearing, no indication that she had fallen down on her
01:43duties.
01:44Now, what was she doing?
01:45Well, she was appointed as one of three members of a board for the Federal Labor Relations
01:52Authority, the FLRA.
01:55She gets a five-year term.
01:57And Brian, mind you, this is under a law that was passed by Congress and signed into law
02:02by the president.
02:03And for nearly 100 years, the Supreme Court has said, yes, this is within the authority,
02:10within the constitutional prerogatives of Congress to put these people in place for
02:16five years and requiring by federal law that they can't be removed except for cause.
02:24And now Trump, one after another, is saying, I don't care.
02:27I'm violating the law because I want to get these cases up to the Supreme Court.
02:32And I want the Supreme Court to revisit the law and say that I have complete and absolute
02:39authority and Congress can't tie my hands by putting these qualifiers on people who
02:45are working in the executive branch.
02:48So this case was just resolved and something called summary judgment was entered.
02:54What does that mean?
02:55It means that the judge, the presiding judge, Judge Sukhnanan in D.C. said, OK, I've heard
03:03enough.
03:04I've seen the briefs.
03:05You've made your arguments.
03:07I don't even need to hold evidentiary hearings because I am ruling that this was an unlawful
03:15termination of this member of the FLRA board.
03:20And indeed, it was easy for the judge to reach that conclusion, Brian, because even the DOJ
03:24lawyers went into court and conceded this was an unlawful termination.
03:30But they say we don't like the law and we want to try to get this up to the Supreme
03:35Court so they can change the law and give Donald Trump nearly dictatorial power.
03:41And just give me one more minute, because I really want to read a little snippet of
03:45Judge Sukhnanan's opinion, because it is forceful, it is direct and it is unflinching.
03:53The judge says the government, meaning the DOJ lawyers in court, the government vigorously
04:00defends Ms. Grundman's hasty termination.
04:03Ms. Grundman is the board member who was unlawfully terminated.
04:08And the lawyers vigorously defend that termination, arguing that the president may remove federal
04:15officers on a whim and in doing so override Congress's considered judgment.
04:22The government, the DOJ's lawyers' arguments, paint with a broad brush and threaten to upend
04:28fundamental protections in our Constitution.
04:32But ours is not an autocracy.
04:35It is a system of checks and balances.
04:38And then she puts an exclamation point on that by saying, we abide by the constitutional
04:44prerogative of Congress to do this, quote, to save the people from autocracy, close quote.
04:52It doesn't get any more pointed than that.
04:56And Brian, this case is now headed like a rocket up to the Supreme Court, I suspect.
05:02And Glenn, in terms of the Supreme Court being able to see this, I mean, you just said this
05:06is law.
05:08And I believe this is Humphrey's executor.
05:09Is that the case that this is all based upon?
05:12Is that correct?
05:13It is.
05:14It's the Humphrey's executor case, kind of a curious name for a Supreme Court case.
05:19It's 90 years old.
05:20It was decided in 1935.
05:23And what it all boils down to is Humphrey's was an executive branch official.
05:29He claimed he was wrongfully terminated and he died during the course of the litigation
05:35of that wrongful termination suit.
05:37So his executor stepped in and finished up the case.
05:40And the Supreme Court said, no, the Congress has the power and the authority under our
05:45constitutional separation of powers and checks and balances.
05:50They have the authority to do this.
05:52And Donald Trump doesn't like it one bit.
05:55I mean, he is forever sort of reaching for more and more and more power.
06:01And this judge called him out and said, the reason we have the Humphrey's executor Supreme
06:08Court ruling and other rulings that have followed along those same lines is to, quote, protect
06:15the people from autocracy.
06:17And here we are.
06:19Well, in that in that, you know, look, I get that this Supreme Court is not sympathetic
06:23to settled law, right, like even though they they went on and on about stare decisis and
06:28that was the most important thing in the world and they couldn't possibly touch Roe versus
06:33Wade only only to do exactly that once they actually get a seat on the bench.
06:38The difference is that Roe wasn't wasn't protected by statute.
06:42It was a Supreme Court precedent.
06:44But but this has been a statute for almost 100 years.
06:49And so how does the Supreme Court have the ability, have the right really to go in and
06:53overturn statute without Congress being the ones to change the law?
06:58You know what, Brian, saying that the Supreme Court is not fond of settled law or they don't
07:02feel bound by settled law is probably a pretty dramatic understatement, as you just pointed
07:08out in how they flip flopped on Roe v. Wade versus Dobbs when they revoked women's constitutional
07:15privacy rights to make their own reproductive health decisions.
07:19So you ask the question, well, what might they do here with something that has been
07:23settled for nearly 100 years?
07:26You know, it's anybody's guess.
07:29And I wouldn't, you know, place my one dollar bet on how this case will turn out.
07:33But here's what I will say.
07:35And we're always looking for points of light.
07:37The most recent case where the Supreme Court had to decide whether the Trump administration
07:43had overstepped its authority, had done something that the law and the Constitution doesn't
07:48permit.
07:50It was the U.S. aid case where they had stiffed, Donald Trump's administration had stiffed
07:55a bunch of contractors who had submitted invoices for work already performed or goods already
08:02delivered to the federal government under existing contracts.
08:05That sounds like a, that sounds like a recurring theme in Donald Trump's life.
08:10Yeah. Who would, who would have guessed that Donald Trump would continue stiffing contractors
08:14when he transitioned from being a businessman to being president?
08:18But what did the Supreme Court do?
08:20Well, two justices crossed over and joined the liberal bloc.
08:24It was Chief Justice Roberts and Justice Amy Coney Barrett.
08:28And they ruled against Trump's expansive view of the executive's power.
08:33And they said, no, basically pay your damn bills.
08:36That is a good and, and hopefully that's a good sign.
08:40And hopefully it's some foreshadowing for how the Supreme Court will now begin to assess
08:45Donald Trump's determination to forever expand the power of the chief executive.
08:51So I am very guardedly optimistic that they will stick with nearly hundred year old precedent
09:00and say, no, the Humphreys executor case, the power of Congress to protect the people
09:08against autocracy in this very way will continue to survive and hopefully thrive because we
09:15need it now more than ever.
09:17Glenn, I know that this, this case specifically was narrowly focused on the plaintiff, which
09:22is Susan Grunman at, at the federal labor relations authority.
09:27There are other folks in analogous positions who've been fired, who, who could make the
09:32same claim here.
09:33So does this precedent count only toward this one plaintiff or is there a way to, to more
09:40broadly have it so that this precedent applies to all folks who are in a similar position?
09:45Yeah.
09:46Great question.
09:47So let me unpack that a little bit.
09:48First of all, this, this is a trial court decision by one federal district court judge,
09:54Judge Sukhnanan.
09:56So that doesn't serve as precedent.
09:58Now it can be persuasive because the rationale that this judge used could certainly be adopted
10:05and used by other judges who, as you're saying, are literally involved in litigation involving
10:11not just analogous, but almost identical cases.
10:14And here's the thing, Brian, Judge Sukhnanan actually acknowledges that in her written
10:19opinion, she says, look, Congress has this authority to set terms for executive
10:26branch officials to require that they can only be removed for cause, not on a whim and
10:32only after notice and a hearing.
10:34And what have we seen in the last couple of months?
10:37We've seen inspectors general who enjoy those same congressional protections under the law
10:43terminated at will violating federal law.
10:46There's a special counsel who's actually sort of an overseer of many of the inspectors general
10:52who was terminated, who enjoys some of those same legal protections for his position.
10:58So the answer to your question is in part, yes, this will be seen as persuasive authority
11:05because it involves identical facts and identical protections put in place by Congress that
11:11the Supreme Court has consistently ruled are lawful and constitutional exercises of Congress's power.
11:19So I have a feeling this rationale, though, it's not technically precedent because precedent
11:23is only set in the appellate courts.
11:26It will serve as what I like to call atmospheric precedent, and it will be an important consideration
11:32in all of the lawsuits brought by similarly situated, wrongfully terminated executive
11:39branch officials.
11:40Which brings me to my next point, shouldn't other folks who've been wrongfully terminated
11:43see this decision being handed down?
11:46And shouldn't this be an impetus to bring suit against him if they haven't already?
11:50Yes.
11:51But remember, lots and lots and lots, tens of thousands of the people who are being wrongfully
11:56terminated like probationary employees and some prosecutors who worked on J6 cases.
12:03They are not benefiting from these congressional statutes that give protections only to very
12:11specific members of the executive branch, like inspectors general, like members of
12:17certain boards, like the FLRA, the board we're discussing here, and a handful of others.
12:24So it's actually a limited universe of people who have those protections under the law.
12:30But all of them who are wrongfully terminated, I'm with you, should look at this, should
12:35be emboldened and should be encouraged to bring suits of their own if they haven't already.
12:40They have for their wrongful termination.
12:42Is there a world in which all of these folks can come together if they are, if they are
12:46at least protected under, under the same general statute that they can come together for a
12:51class action lawsuit?
12:53Okay.
12:54I am not a civil litigator and I've never put a class together in a civil litigation
12:59case.
13:00So with that caveat, my sort of informed opinion, knowing what I know about class action litigation
13:06is probably not because there are different statutes in place that govern different executive
13:14branch employees.
13:15If it's a, you're an inspector general, you're going to be covered by one federal statute.
13:20If you're a member of the FLRA, another.
13:23So you could probably join in with like mini classes, but I don't, I don't see all wrongfully
13:29terminated executive branch officials being collected up in one class action civil suit.
13:35I will leave that for the experts.
13:37Well, look, class action suit or, or individual suit.
13:40I think the point here remains the same, which is that clearly there is, there is some positive
13:46reinforcement for these folks who are looking to take legal action against Trump.
13:49This case right here with with Susan Grunman is a Testament to exactly that.
13:53And so I hope that folks who have been wrongfully terminated can see what's happening in the
13:57courts right now and can take action so that they aren't wrongfully terminated so that
14:02the government isn't staffed with only people who are going to be loyal to Donald Trump
14:07and that we have some folks who can serve as bulwarks against the worst excesses of
14:11this administration.
14:12So look, we will continue to focus on this.
14:15As we said in the beginning, this is very likely to make its way all the way up to the
14:18Supreme Court.
14:19So we'll stay on top of it.
14:20For those who are watching, if you want to follow along and if you want to support our
14:23work in independent media more broadly, please make sure to subscribe.
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14:34I'm Brian Taylor Cohen.
14:36And I'm Glenn Kirshner.
14:37You're watching The Legal Breakdown.