BREAKING: Trump rocked by MONUMENTAL court loss

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Legal Breakdown episode 484: @GlennKirschner2 discusses a major court loss.  For more from Brian Tyler Cohen: Order my #1 NYT bestselling book: https://www.harpercollins.com/pages/shameless YouTube (español): https://www.youtube.com/@briantylercohenespanol Twitch: https://www.twitch.tv/briantylercohen Apple Podcasts: https://apple.co/36UvEHs Spotify: https://open.spotify.com/show/0066rKCBIycIMI4os6Ec5V Twitter: https://twitter.com/briantylercohen Instagram: https://www.instagram.com/briantylercohen Facebook: https://www.facebook.com/briantylercohen TikTok: https://www.tiktok.com/@briantylercohen Newsletter: https://plus.briantylercohen.com Bluesky: https://bsky.app/profile/briantylercohen.bsky.social Threads: https://www.threads.net/@briantylercohen

Transcript

00:00You're watching The Legal Breakdown. Glenn, we have the most consequential ruling against Donald Trump yet in the courts. What just happened?

00:07Yeah, Brian, a huge ruling. A federal judge out in California, Judge William Alsup, just ruled that the mass

00:15firings of

00:17probationary employees, we're talking tens of thousands of employees, was

00:22illegal and he ordered the Trump administration to

00:26rehire or offer to restore them to their federal jobs.

00:32You know, in a very real sense or in substance, Judge Alsup told Donald Trump that he must go from you're fired to

00:40you're rehired. And this is something that is not going to sit well with Donald Trump, with the administration.

00:46Of course, it will be subject to an appeal and we can talk about that in a few minutes.

00:51But Brian, you know that he ruled from the bench. Judge Alsup ruled from the bench.

00:55And so we have to rely on the reporting that came out regarding what he said until we have a transcript.

01:02But I have to tell you, the federal courts are taking off the gloves and they are punching in a way

01:08you don't often see.

01:10Figuratively speaking, punching in a way you don't often see federal court judges punch.

01:16Let me read just a couple of Judge Alsup's

01:19comments, the quotes that he made today from the bench.

01:22He said, quote, it is a sad day when our government would fire some good employee and say it was based on

01:30performance when they know good and well, that's a lie. I mean, those are really

01:37direct, pointed comments from this judge. He went on to say this was a sham in order to try to avoid

01:46statutory

01:47requirements. That was a little more politely. He went about saying, yeah, you did it intentionally.

01:53You tried to hide it. You tried to misrepresent it,

01:56but you violated the law. And then it actually gets worse for Donald Trump's DOJ lawyers who are going into court and

02:05arguing this garbage to federal court judges.

02:08Here's what Judge Alsup had to say about the DOJ attorneys,

02:13Donald Trump's DOJ attorneys who were arguing this case in court.

02:17He said he, quote, felt misled by the US government, in other words by the DOJ

02:23attorneys who were arguing the case. He said, it upsets me. I want you to know that.

02:28You're not helping me get at the truth. You're giving me press releases and sham

02:35documents. And the reason I quote some of that language, Brian, is

02:39because that's the kind of stuff that gets lawyers referred to Bar Council for ethics

02:46investigations and possible sanctions. And why these lawyers are willing to

02:52demean, debase,

02:54beclown themselves in federal court for the likes of Donald Trump is beyond me.

03:00But it looks like they're doing it. And importantly, federal judges are holding them

03:04accountable for it one after another.

03:06Well, look, Glenn, I know that we've all become accustomed to aggressive language, just watching politics.

03:11But can you convey to us how unorthodox it is for a judge to speak like this to a lawyer based on something that the

03:19lawyer presented in court?

03:20Brian, I'm so glad you asked me that question because I think people might

03:24misunderstand or might misperceive that the norm today is this kind of language in court coming from

03:31federal judges. You know, for 30 years, I never left the courtroom.

03:35So I practiced before military judges, civilian judges, trial court judges, appellate court judges,

03:40federal judges, and local judges. Pretty much every kind of judge

03:44imaginable. I never heard language like this. I never

03:49experienced language like this. But in the last 24 hours,

03:53do you realize we had three federal court judges say, the first one,

03:58compared Donald Trump to the Queen of Hearts in Alice in Wonderland, saying about

04:04subjects that displeased her? Off with their heads. That was one judge. A second judge yesterday

04:12said that the Trump administration

04:14was violating laws that are on the books to, quote,

04:19save the people from

04:22autocracy. And then today you had the comments from Judge Alsop that we just reviewed.

04:27This is not normal. This is like scorched earth, hair on fire coming from these federal judges.

04:34But what it is, you know, we're talking about the points of light amidst the Trump-induced darkness.

04:40These judges are stepping up as

04:42beacons of light and beacons of truth and beacons of accountability, and it looks like they really are

04:48trying to light the way to a return to a healthy democracy. Not to sound mellow dramatic,

04:54but that is just how

04:57dramatically unusual, you know, it is to hear things like this from federal court judges.

05:02Can you walk us through the ruling itself? Because as far as I was concerned,

05:05I mean, I know that there are obviously a lot of issues with this concept of wrongful termination,

05:11but it seemed that the probationary employees were relatively easy targets because they were still not tenured

05:18employees in their positions, and so they were kind of ripe for

05:22dismissal. And so why was the ruling here handed down against the Trump administration?

05:27Yeah, it's a great question because none of this is really intuitive. It involves

05:32employment law, it involves civil service protections that apply differently to probationary

05:39employees, and I don't want to use the word tenured employees,

05:42but employees who have already made it through the probationary period, so they're permanent federal government employees.

05:49But there are really two main

05:51concerns or main issues that, you know, renders these firings

05:56illegal, unlawful, in violation of federal government rules, policies, and procedures. As you say, it would be easy to

06:05terminate probationary employees if you followed the law and you touched the bases and gave the probationary

06:13employees kind of the rights that they enjoy.

06:16But here's the thing, the Trump administration didn't do that. First of all, the Office of Personnel Management,

06:23OPM, has no authority to direct the firings of federal government employees,

06:30but OPM is indeed the one who put out the missive that all of these people will be fired. Now, each of the

06:38agencies, each agency head, could have gone through the process of

06:42deciding which probationary employees to terminate if they kind of touched all the procedural bases,

06:48but that's not the way they did it. OPM didn't have the authority to do it, and

06:53this adds insult to injury, and actually this next thing that we're going to discuss adds

07:00insult to

07:01defamation, because what they did, as Judge Alsup found, is they lied about it. So OPM first

07:09didn't have the authority, and then when they wrongfully terminated all these people, they said, it's because you're poor

07:16performers, which was stone-cold

07:19bullshit. It wasn't performance related. It's because Donald Trump is trying to hollow out,

07:26improperly and unlawfully, it turns out, hollow out the federal workforce.

07:32So there are those two different reasons that led Judge Alsup to conclude, no, no, no,

07:37these are unlawful terminations, and I am ordering you to rehire or offer these

07:43probationary employees their jobs back. Now, you know, we have a lot to talk about regarding moving forward.

07:49What issues does this conjure up? And there are lots of issues that, you know, will still have to be overcome

07:55before these, you know, attorneys get to go back to their old jobs.

07:58And so to that point then, what are next steps here? Because this was at a trial court, and so

08:04do we expect, well, I'm almost certain that we're gonna see all of this get appealed because Trump's team appeals everything.

08:10And so, and so what should we expect now with regard to next steps?

08:13We should expect an appeal to, first of all, the Federal Circuit Court of Appeals, and then ultimately to the Supreme Court,

08:21regardless of which party wins or loses.

08:23So, you know, I do take some comfort, and we've talked about this in recent Legal Breakdown videos, that the last

08:30significant ruling handed down by the Supreme Court went against Donald Trump, with Chief Justice Roberts and Justice Amy Coney Barrett

08:37joining the liberal wing of the court to rule the right way, and that was in the USAID case.

08:43So I'm hopeful that justice is trending,

08:47but we'll have to see what they do with the next case that they accept review of. So there will inevitably be an appeal.

08:53Here's the other thing I would look for, and this is not necessarily good news,

08:57but I think it's something that we should front, and that is, even though OPM

09:02didn't have the ability to order the mass firing of these people, and even though it was wrongful to lie about

09:10these probationary employees and say this was a performance-based

09:15termination, which really does demean and indeed potentially defame those people and make it harder for them to get employment

09:22moving forward, so you may see some defamation suits in the future,

09:27but maybe they can remedy those deficiencies by saying, okay, we're going to take a step back,

09:33we're going to give the authority to each agency head to make the determination of which

09:40probationary employees should be fired and which should retain their jobs,

09:44and then we're going to have them follow the procedures, which frankly, Brian, as you kind of hinted at up front,

09:51they could have done from the beginning, but that really wasn't Trump's MO, going about thoughtfully

09:58reducing the size of the federal government to perhaps, you know, cut out a little bit of

10:04bloat from the federal workforce. No, he did this for the callousness, the cruelty, the

10:11intimidation, in hopes that, one, these people would shut up and go away while they haven't, and two,

10:18undoubtedly, he hopes that this will inspire other good federal employees, public servants doing the work of the American

10:25people day in and day out to say, I don't have the stomach for this, I don't want to work for this administration,

10:31I'm out, and you know, I think he probably has accomplished the, you know, retirement, the resignation,

10:38the departure from federal government of lots of good federal government employees who say, I don't want to be part of the Trump administration.

10:46You know, you mentioned that there may be the prospect of defamation suits moving forward.

10:52Is that in a personal capacity or not? Because if these folks can sue the federal government because they've been

10:59defamed and they have a good basis to bring these lawsuits, and they win, and

11:04they're awarded monetary damages, then isn't it just taxpayers? Like, isn't Donald Trump basically allowed to do whatever he wants,

11:10knowing full well that he really has no

11:13financial exposure himself? It's just us that have to foot the bill for his behavior.

11:19And so why not just defame these people if he knows he doesn't have to pay for it?

11:22The suckers, mostly in blue states, by the way, who fund the federal government, are the ones who are going to be footing the bill.

11:27Yeah, you know, what, you know, your rationale that you just explained there,

11:32I think goes to a lot of what Donald Trump does. You know what? I may be issuing unlawful or

11:39unconstitutional

11:40executive orders. I may be wrongfully terminating lots of people, but you know what? If they sue and they win,

11:47it's just taxpayer money that's gonna, you know, go to make them whole for what I did to them.

11:54However, here's what we have to keep in mind. It will only be taxpayer money if

12:00what was done to these people, the wrongful terminations and the defamation, if they have a good cause for defamation,

12:08only if the government officials who wronged these people were acting within the scope of their official

12:17governmental duties, the official duties of their job.

12:20But if they weren't, if they were acting beyond the scope of their official government duties,

12:26and I think there is a straight-faced claim that they were, guess what?

12:30Then they have to defend themselves personally, and if the plaintiffs, the people wrongfully terminated and

12:37defamed win that suit, they have to pay damages out of their own

12:42pockets. You know, that's the kind of incentive that is built into the system of what we called qualified immunity for federal government

12:51employees and officials. It's an incentive that we build in to try to keep people, you know,

12:57in line, in a very real sense, to try to keep them acting within the scope of their official governmental duties

13:04so they have the protection of qualified immunity.

13:07But I'll tell you, given the rulings of these courts that people are acting lawlessly or

13:13unconstitutionally in these, you know, wrongful terminations, that will set them up potentially for personal liability.

13:19So maybe at the end of the day, any damages that have to be paid out will not come from taxpayer money.

13:25Yeah, well, look,

13:27in fairness, I do have to say that if the final arbiters of whether or not what Trump is doing

13:33is an official act, if that's going to be the Supreme Court, that doesn't inspire a whole lot of confidence given that it was this

13:39very Supreme Court who introduced this idea of

13:43presidential immunity. I mean, that's why Donald Trump wasn't able to be charged with the insurrection crimes related to January 6th.

13:49And so, you know, look,

13:51I'm not putting all of my eggs in the basket of hoping that this Supreme Court, which has already been

13:56wrong on this specific issue, is going to do the right thing.

13:58But it's worth keeping an eye on this right now because this is a major issue that we're

14:03contending with regarding all of these civil servants being being improperly fired.

14:08So we will, of course, stay on top of this. For those who are watching right now,

14:11if you want to follow along and to support independent media and our channels more broadly,

14:15please make sure to subscribe. Glenn is very fast approaching a million subscribers.

14:20So if you're not yet subscribed to his channel, please hit the subscribe button. I'm Brian Teller-Cohen. And I'm Glenn Kirshner.

14:25You're watching The Legal Breakdown.

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