This is Bloomberg Law with June Grosseol from Bloomberg Radio.
President Donald Trump's blitz of sweeping, aggressive, and often unlawful executive orders has hit only one roadblock so far, the federal courts. As Trump and Elon Musk slash government agencies, freeze funding, and oust federal workers, the Republican Congress has just gone along. In fact, House Speaker Mike Johnson has said the court should just let Trump do what he wants.
And I think that the courts should take a step back and allow these processes to play out. What we're doing is good and right for the American people.
It's been federal judges who've put the brakes on many of Trump's early moves to freeze federal grants and loans and birthright citizenship, and remove transgender soldiers from the military. Trump has a history of attacking judges who rule against him, and he remains consistent in that way, blaming judges for slowing down his agenda.
We want to weed out the corruption, and it seems hard to believe that a judge could say, we don't want you to do that. Well, so maybe we have to look at the judges because it's very serious. I think it's a very serious violation.
A potential showdown between the administration and the judiciary was averted for now when Trump agreed to comply with court orders.
Yeah, the answer is I always abide by the courts, always abide by him, and will appeal. But appeals take a long time.
My guest is former federal judge Paul Grimm, director of the Bald Judicial Institute at Duke Law School. So looking at the big picture right now, you have judges being attacked by Trump allies, and even the House Speaker saying, I think the court should take a step back. Where are we here?
I think that we're at a place where everybody who believes that the firewalls that the Constitution imposes on all three branches of government to make sure that no one branch exercises successive authority in a way that's unaccountable under the law, that anybody who believes in this should be concerned. We know that for well over a decade that the public's perception of the courts has been declining. This is
due to a lot of reasons. Part of it is that public figures and public officials from both sides of the political spectrum feel increasingly comfortable attacking individual judges for their decisions when the judges were just trying to do
what their job was. It's created by the fact that social media is where a lot of people get their information, and a lot of the information on social media that deals with the courts is by people who may be well intentioned but misinformed, or maybe not even well intentioned and are trying to miss one. Judges are traditionally reluctant
to engage with the public. They can't talk about their cases, and that reluctance sort of spills over to make them sometimes more cautious than they should be in terms of communicating to the public. Most of the public has no contact with the digital system. They've never been in the courts, They've never had an engagement with a judge. The media portrayal of judges is not particularly favorable in movies and on TV, and the judges don't speak out for themselves,
So who does well? The ABA ethics under the can and eight of the Ethics Model Rules, Commentary three says that lawyers should speak up to defend the system. But when the ABA comes out with a statement or the American College of travelers who does that reach. So we're at a point now where we are a highly polarized
society and we are highly divided over many things. We also have a Congress which is highly politicized and highly polarized and does not function the way in which anybody who thinks the legislatures should function thinks is functioning well. And so when Congress is sort of paralyzed by its own polarization, nature reports a vacuum. Who steps into that vacuum in power? It's going to be the president, whether
it's a democratic president or a publican president. And the current president has a very specific agenda and very clear ideas about how he wants to proceed, and a very muscular view of the powers of the president needs to
be the other branches. And so in that environment, with the number of executive orders and actions that have been initiated in the last month, they have gone into areas that, you know, maybe breaking tradition in terms of what presidents have done, seem to be animated by a very broad view of the authority of the president, and that leads to losses, and the losses lead to cases that have to be started by judges and the judges rule, and then of course if they rule in a way that
people who were in favor of the government action that was being challenged. We see this attack upon the judges in a way that is increasingly problematic. It is personal. It calls them things like corrupt or traders, or that they've committed treason. It promotes or implicitly encourages violent It has caused threat and by the way, these are comments that have been raised by people who are both Democrats
and Republicans. So I think that we are at a very significant point in our country where the scope and the tone seems to have gotten so extreme, and we have to take all reasonable steps that we can take to speak out in defense of our constitutional structure and to condemn unfair attacks on the judiciary as an institution or individual judges.
It seems like one of the worst aggressors is Elon Musk, who, by the way, has more than two hundred million followers on x. I mean, he has called several judges corrupt, call for their impeachment, and he's also reposted photos of
at least three judges who ruled against Trump policies. And I'm wondering in light of the fact that the US Marshal Service says that serious threats to federal judges have doubled since twenty twenty one, whether anything else should be done, whether there should be more security, I think.
The simple answer is yes. First of all, what's the old expression that the best protection against tate speech is more speech. We need more voices talking about this, all reasonable steps that we can take to speak out in defense of our constitutional structure and why it's important to let it operate the way that it operates, and to call out and to condemn unfair attacks on the judiciary
as an institution or on individual judges. I would love to see an open letter signed by retired judges because they could speak more freely. Professors, faith leaders, to the press, business leaders. Can you imagine spending a billion dollars on a new pharmaceutical and then someone steals the information on it, It gets your intellectual property and gets a judgment, and someone says, well, I'm just going to ignore it that judgment.
We don't care what that judge said.
Signed by all of these people talking about the importance of these core principles separation of powers, rule of law, judicial independence, and the importance of recognizing that the rule of law only functions when the public is willing to
accept the decision that they disagree with. And when you have someone that has as big a megaphone and can reach millions and millions of people and post pictures where any reasonable person would say that the result of that is to focus threats of harm or coercion or intimidation or pressure on a government official, any government official trying to do their job. That's something that we should say is going too far. That's beyond fair criticism. That's an
attack on an institution. And we need to have every important component of our society that believes that the framework of our government is important to maintain, to speak out to say that that level of personal attacks is wrong and cannot be tolerated.
There's been a lot of discussion about whether or not we'll reach the point where the Trump administration decides to defy a court order. But yesterday, after taking some shots at Judge Paul Engelmeyer, who had temporarily blocked Musk's team from accessing some Treasury Department information, Trump said he will obey court orders. Should that give us some comfort that a constitutional crisis can be avoided.
Well, it's better than saying that he's not going to fall. I'll say that what I think is important is to try to reach the public because when you have social media hitting people, you know, do we think that we're going to personally dissuade someone with as strong a will as some of the people who've spoken out against the judges.
Are we going to persuade them? Perhaps not really, but if we have enough voices joining in saying this is why this kind of talk is dangerous and it should not be engaged in it to help change minds, and I like to look at it as an opportunity where we should be trying to generate light but not heat. And let me give you an example of that. You've got someone that comes out and say, well, we don't think any judge should be in favor of corruption. Okay,
well what judge is in favor of corruption? Well, if you said that the decision that was issued by Judge Inglemeyer was a judge that was in favor of corruption, then what I would say is have you read that decision? And I have. Judge Inglemeyer was sitting as a chamber's judge when a temporary respanding order came in and it was the next part say motion for restraining order, which the rules allow, and he was not even a judge
assigned to the case. That's judge bargains and he had to act on that, and he issued a five day pause. He said, for five days, i am ordering that the doged adulge people can't have access to this information because the filing show that they may not have had background checks, and they may not have had training in preventing hacking, and millions of people's confidential financial information may be exposed
and there may be a danger of hacking. And so for five days, I'm ordering that only Treasury people who have these safe graudu and protections in their training can have access to it. It was issue on the eighth. The government was given until the eleventh, and the plaintiffs nineteen attorneys general were given until the fourteenth. And now it's going to judge bargain. You'll decide on the merit.
If you put it that way, say what exactly did the judge do that show that the judge was in favorite of corruption And the answer is no, one in the right mind, if they look at those facts, would say that there is a legitimate basis for criticizing what that judge did. But how do you direct the narrative so that people will take a step back and say, oh, that's what happened. I mean, if you took a poll right now and ask people, you know, if they knew what it was the bothly this judge did, that, you
would get any kind of an accurate response. Answers probably know. So how do we have that dialogue? And we can't have that dialogue unless institutions and individuals who still command respect within the community speak out and say we've gone too far, because that's only way we can change opinions.
Coming up next, for the first time, a judge says that Trump administration failed to obey an order. Remember you can always get the latest legal news by listening to our Bloomberg Law podcast. You can find them wherever you get your favorite podcasts. I'm June Grosso and you're listening to Bloomberg.
This is Bloomberg Law with June Grosso from Bloomberg Radio.
I've been talking to former federal judge Paul Grimm, director of the Bolt Judicial Institute at Duke Law School, about recent attacks by Trump allies on judges because of their rulings, blocking some Trump orders, at least temporarily. So on Monday, for the first time, a judge said that the Trump administration disobeyed an order that was Rhode Island Judge John McConnell Junior that White has had defied his order to release billions of dollars in federal grants. So the White
House is appealing that. But what can a judge do if an administration defies an order? I mean, does a judge have any real power?
Well, it's interesting. Judges can act in the way in which judges have authority to act at a circumstances. They can find an individual that has disobeyed an order that was subject to their jurisdiction, or an entity like a government agency in contempt. They can impose monetary fines for contempt to try to coerce compliance with the order. If the contempt lasts long enough and raises to certain levels that constitute criminal contempt, then then they have other sanctions
that they can issue as well. And the question that becomes are those tools those limited tools, but existing tools that the courts have to deal with people who are found to be in contempt and non compliant with orders. Are they likely to be effective? Well, the answers probably, in this instance, not too effective. If you held the president and contempt of court, the president would certainly appeal that and it would it would play out. It's not
going to cause immediate compliance unlikely. So the tools that the judge has, you know, would range from giving another opportunity or trying to identify some way of purging the contempt and hoping that there's compliance and if not, you know, if they felt that they continued to be a contempt, to to walk down there in issue orders in that direction. Whether that would be effective, whether it be complied with is anybody's guess. So there are limited tools within the
judicial arsenal that could be used. You can have a monetary find that continues to increase over a period of time, and if that doesn't induce compliance, then there are other levels of contempt that could be issued as well, But there's not a lot of arrows in the quiver at that point for they judge the issue. If you've got a government or a government figure that says I'm not going to comply.
Finally, there's been a lot of talk about a constitutional crisis and the White House Press secretary said that judges are causing constitutional crisis by blocking illegally blocking Trump's agenda. So that's where they're coming from. But at what point do we say we have a constitutional crisis.
Well, if you read the papers in the last week, people are already saying that we have it. But I worry that we've let the taglines run the narrative. There's a heightened level of rhetoric esteem used in the language of the people who are attacking the judicial actions and in the language of the people who are talking about
whether it's the constitutional crisis. You have an alarming set of circumstances in which there have been challenges to executive action, which is very assertive and not fearful of pushing the boundaries of what past parameters of presidential authority have been. You have individuals and organizations that feel that they've been agreed by that who bring losses. You've got judges that
have to respond to it. And we don't get into the details of the particular lawsuit or what the nature of the challenge to the lawsuit was, or understanding the circumstances of the judges ruling. Instead, we get immediately to this the judges are causing it. No, the executive is
causing it. I would rather have this be a moment where we are trying to talk about what's the structure of this government that has served us well as well as it can for the last two hundred plus years, and that's based upon these foundational principles of separation of powers, and why separation of powers is important, why it ties into the rule of law while judicial independence is there, and that if these protections are not there, then no
one's rights and liberties are safe, No business can prosper, no religion is free to be exercised the way that their believers think it should be. And so all of these things that we value as being sort of the defining nature of our rights and liberties in this country are at peril on that. And that's not a discussion
that I hear. Instead, I hear slogan like a constitutional crisis. Well, I guess what I would say is, at one point, if you've got a president that that takes actions that under the law would be perceived as being beyond the order of that president to act, and if the judiciary says it's violation, and if the president disregards it, and if Congress doesn't take action, and the public itself does not feel alarmed by that, they're not bonded by that.
But I guess you wake up one morning and what what we thought we were in the country is not what we are now because the people don't care. How do you get the people to care? You got to have a dialogue to talk about what's important about these government structures. Then at least make the effort to try to understand the positions of both sides in anterrational way. Set out the frozen cons so that people who are open minded at least have the opportunity to understand what's
the stake and decide what they think is important. And that's what we don't see and fanning the fire by saying constitutional crisis and one side of the equations say well, you're causing it, and the other ones saying that you're pausing it. That's not advancing anything. That's just flaming the fire.
A lot of talking going on and not much listening. Thanks so much for joining me on the show. That's Paul Grimm, director of the Bash Judicial Institute at Duke Law School.
Because of President Donald Trump, this is a new era at the Southern border.
That's Defense Secretary Pete Hegseth during a trip to the southern border last week. And it's not only a new era at the southern border, but also a new era in the military. With heg Seth executing Trump's executive orders, the lawfloorders.
Of the President of the United States will be executed inside this Defense Department swiftly and without excuse.
Under new rules released by heg Seth, transgender people who want to join the military will be blocked from enlistment, and transgender troops already serving will be blocked from receiving some gender related medical care from military physicians. Joining me is Josh Castenberg, a professor at the University of New Mexico Law School. He served as a lawyer and a judge in the US Air Force. Josh is the next move kicking out transgender people who are currently in the military, Well, not now.
I mean that's the possibility in the future, but not now. And one thing to consider about that is that there's no right to serve in the military. There's a right to not be discriminated against on the basis of race,
national origin, creed, religion, and the like. But for years, when the government argued to keep gay, openly gay and lesbian men and women out of the military, they would make the argument, there's no right to serve in the military, which is ironic because we still have a draft on the books, and so there's sort of an imbalanced The reason I bring that up is that the administration is willing to bring back on active duty service members who
refuse to take the COVID vaccine, thereby violating the commander in chief, you know, President Biden, and vac orders have always been lawful since the days of George Washington in the smallpox vaccine. So they're going to let people who have the marker of disloyalty come back in, but not transgendered persons who may very well be the most loyal of American citizens are being barred from coming in. And that's the disconnect.
In this memo, he said individuals with gender dysphoria who have volunteered to serve our country will be treated with dignity and respect by other members of the armed forces, but he puts severe limits on their medical care.
Well, that's exactly right. And so here's another aspect of what may be nothing more than double speak, the military has to be very cautious, including the Secretary of Defense, about not engaging in something known as unlawful command influence, which not only permeates the criminal aspects of military service, meaning though you see uniform cut of military justice and court martial enforcement, but also the administrative mechanisms on giving
people clearances or taking them away, and promotions, demotions, other administrative actions and the like. So what he's basically said is you're going to comply with the law that's in place of equal treatment. If he hadn't said that, there would be a slew of court cases for people who were being you who believe they were wrongfully denied promotion, or people who were being administratively discharged.
And the like.
So I wouldn't look at that as being something like, oh, out of the goodness of their heart or to show reasonableness. They have to do that in the unique way that
military law works. However, and this is the big however, you have a president who's thought nothing about crossing the line into unlawful command influence, because even though for example, Bowie Bergdahl in the first administration was a deserter and in all likely it deserved to be court martialed commander in chief expressing an order, essentially an order that Bergdaal should be treated like a trader and given the maximum punishment,
ironically coming from a president who dodged the draft when he was called into service. But there it is. So you have to have some sort of barrier against this unlawful command influence. And that's all I read into that memo.
So, a twenty eight year old transgender service member is suing a lleging that she was told that she had to either be classified as a man or be separated from the military, and said she was required to leave the sleeping area for female troops and sleep by herself in a classroom. That doesn't seem to be the respect that Defense Secretary Pete Hegseth talked about. Where does this fit in?
Well, it fits into the administration's policy. And you know, you have to understand, speaking from someone who has served twenty four years in uniform, the constitutional rights of service members do not have the same force and effect that the constitutional rights of ordinary citizens do. And if the military wants to have separation policies based on gender, they
can do it. And it falls into the Commander in chief to do unless and this is the big un less Congress acts by passing a law to prevent it.
But you know, I look at this as part of an overall sweep of the military to basically not just curb the freedoms of service members, but to shape the military ethos and culture to a point that's like out of a John Wayne green Bereat type movie, a past that never really was, but a pass that people want to embrace anyway, And it's not particularly healthy for the military.
But there's more wiggle room for the Secretary of Defense and the service chiefs and the President and to do these very things than there would be, say if they tried to do it to the medical profession or university public universities across the country.
Land of legal in the Human Rights Campaign filed a lawsuit last week on behalf of three senior naval officers against the Trump administration over its executive or to ban transgender people from the military.
Well, what I think about it in terms of a moral issue and my prediction of it as a legal issue are two different things. Okay, I think anybody who wants to serve, who's faithfully served in the military and meets basic military standards. And I don't mean the standards that have come and gone because they're you know, situationally driven, but I mean military standards in terms of literacy, physical fitness,
knowledge of what they're doing. I mean, obviously, someone who's engaged in cyber warfare and someone who's an army ranger may have different you know, there may be different standards in that, but I'm talking about basic st I'm also talking about basic standards of following orders, basic standards of you know, sort of the drug free environment and the like that have been tried and true for a long time.
Someone who meets those standards ought to be able to serve because they stood up as less than one percent of the population and they put me in I believe in the country that's the moral issue. So I support LAMBDA in that, But my legal prediction is different. I think unfortunately, there's been a long line of case law that goes to the federal courts of appeal and even to the US Supreme Court, which gives the military far
more discretion. The senior military establishments leaders who are civilian far more discretion to change policies that are discriminatory in nature and you know, you think about the donas don't tell policy, You think about the prohibition against gays and lesbian serving before the Clinton administration. I mean, you think about decorated service members from the Vietnam War being shown the door and the like and challenging in the courts and the court siding with the military. Well, that's the
case laws. You know what we call in the law starry decisives past precedent, And I think Lambda is up against the mountain. I side with them as a moral issue on this. I just think that, and good on them for fighting the fight, but I just don't predict it's going to work in the end in the law for them. It's a matter of elections being important and this particular election setting the stage for the sort.
Of thing to happen.
And tell us about the arguments that the transgender service members are raising.
Well, their argument is essentially that they're not being a courted equal treatment under the military. And you know, if you go back to Supreme Court cases like Chapel versus Wallace, there are all these administrative procedures that they have to go through, and the courts will do this administrative deference to the military itself, and it'll take a long time. It'll be exhausting. And I don't imagine that Lambda is going to succeed in that.
I mean, it might get to the Supreme Court, which twenty nineteen allowed Trump's restrictions on transgender people in the military to take effect.
Yeah, I don't have faith in the Supreme Court when it comes to the rights of service members. And it's not just not having faith in Alito and Thomas. I don't have faith in the Supreme Court across the board because of something that's been well studied but sort of faded ever since the end of the Draft, called the
military difference doctrine. The military difference doctrine is something that the Court itself has never articulated, but some legal scholars have before my time, which is in matters of national security, when the government states that the military needs to be composed X, Y, and Z, the courts give extreme deference to the military, which they would never do to other institutions. And that works for a good and a bad. But that difference doctrine has predated World War Two, so it's
not just the Conservatives. Even the war in court to an extent embrace that deference doctrine.
I want to turn now to book banning by Haig Seth. He has banned some books and learning materials in the school system that serves the US military families, covering subjects
that include psychology, immigration, and Black history. There's a chapter in a psychology course for Advanced Placement high school students about gender and sexuality, a lesson for fifth graders about how immigration affects, the US book Becoming Nicole, about a family coping to accept their transgender daughter, and a bundle of instructional materials created for sixth graders for Black History Month.
This is amazing too. You know, the Department of Defense schools exist for two different reasons. Overseas, they exist because
you've got military bases. And although I as a kid, I went to a school public school in West Germany when it was then West Germany, the Dodge schools stood up to educate American kids to American standards so that when they graduated they'd be able to come back into the American economy or go to college without having to go through the various hoops that say an Italian or a French, or a British, or Japanese or South Korean
education might give them. Ironically, some of those countries were doing a better job than we were, but that's for the overseas students. In the United States, the DoD schools existed in states that fell below minimum federal standards, and those were typically states in the South, and that included Virginia. There was a school at Fort Belvoir, for example. But having said that the Dodge schools, the Dods schools had
rarely gotten the attention of the Secretary of Defense. I mean, the Secretary of Defense is supposed to be focused on whether we need another aircraft carrier or not, or what the right you know, alignment of troops is in the Middle East, or how much money to spend on future warfare versus you know, updating the M one A one tank force. We're talking about huge responsibilities that are actually at the center of tomorrow's war if tomorrow's war comes.
The Dodge school seldom got the attention of the Secretary of Defense. This is unusual, and it's part of an unfortunate pattern of attacking DEI blindly without even understanding what DEI is. It's related to the Secretary of Defense's immediate blaming of DEI on the military and civilian aircraft collision outside of you know, outside of Washington Reagan Airport, which was absolutely unethical to do because those investigations take months
to run down. But it's reminiscent of when the USS Iowa's turret exploded in the late eighties and the naval leadership the civilian leadership said, oh, it must be the gay sailor who committed suicide but accidentally killed forty seven sailors, when in effect, all it was was political opportunism. It was a worn out gun tour, it dating the World
War Two, but it's political opportunism at its worst. It's like removing alleged DEI material from the curriculum at West Point, the Air Force Academy, the Naval Academy, or even the military senior colleges like War College and Command and Staff colleges that each service branch has, and these schools, all of them, every single one of them, exists for the betterment of the military community so that we don't have
another Vietnam. It exists for cultural competency. And that's why I say we're turning our minds and hearts back to a pre Vietnam War era, which I think ultimately will be ruin US the military.
Well, hopefully things will change in the future. Thanks so much, josh That's Professor Joshua Kastenberg at the University of New Mexico Law School. And that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify, and at www dot bloomberg dot com slash podcast Slash Law, And remember to tune into The Bloomberg Law Show every weeknight at ten
pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg