Legal Breakdown episode 486: @GlennKirschner2 discusses Trump losing at the Circuit Court level
For more from Brian Tyler Cohen:
Straight-news titled YouTube: https://www.youtube.com/@briantylercohennews
YouTube (español): https://www.youtube.com/@briantylercohenespanol
Order my #1 NYT bestselling book: https://www.harpercollins.com/pages/shameless
Newsletter: https://plus.briantylercohen.com
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
Bluesky: https://bsky.app/profile/briantylercohen.bsky.social
Threads: https://www.threads.net/@briantylercohen
For more from Brian Tyler Cohen:
Straight-news titled YouTube: https://www.youtube.com/@briantylercohennews
YouTube (español): https://www.youtube.com/@briantylercohenespanol
Order my #1 NYT bestselling book: https://www.harpercollins.com/pages/shameless
Newsletter: https://plus.briantylercohen.com
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
Bluesky: https://bsky.app/profile/briantylercohen.bsky.social
Threads: https://www.threads.net/@briantylercohen
Category
🗞
NewsTranscript
00:00You're watching The Legal Breakdown.
00:01Glenn, all eyes right now are on this court case that's working its way through the court
00:04system where Trump's efforts to fire a whole broad swath of probationary employees was
00:10stopped in its tracks in a trial court.
00:12That move has just went to the appeals court and Trump just got hit with some bad news
00:16there.
00:17Can you explain what just happened?
00:18Yeah, Brian, the Ninth Circuit Federal Court of Appeals in California just told the Trump
00:23administration, no, we are not going to stop or pause.
00:29A lower trial court ruling that your termination of thousands and thousands of probationary
00:36employees was illegal.
00:39You lied to them and told them it was performance based when it was clearly not.
00:43It was based in Donald Trump's nefarious attempts to gut the federal government and that lower
00:49court judge ordered the Trump administration to rehire these wrongfully terminated employees.
00:56And so, of course, Donald Trump's DOJ lawyers ran up to the appeals court and said, wait,
01:01wait, wait, please put a stop, a stay, a temporary pause on that trial judge's ruling that we
01:07have to rehire these wrongfully terminated employees.
01:12And today, by a 2-1 vote, the Ninth Circuit Federal Court of Appeals said, no, we are
01:17not going to stop or administratively stay or pause that lower court ruling requiring
01:24you to start rehiring these wrongfully terminated temporary employees.
01:30And how significant is it that these three judges in the appeals court opted not to grant
01:34the preliminary injunction that the Trump administration was seeking?
01:38You know, Brian, it's pretty significant in part because I see a pattern emerging in what
01:44the Trump administration is trying to do.
01:47They try to act unlawfully, sometimes unconstitutionally, and then the courts call them on it, tell
01:54them no, tell them you can't do it, tell them you have to stop, and in some instances
01:59you have to reverse it.
02:01And then they run to the appeals court and they say, well, wait, wait, wait, you have
02:04to maintain the status quo.
02:07That's a term of art in the law.
02:09What maintain the status quo means is you have to leave in place whatever last happened
02:16in the case.
02:17So what they're trying to do is engage in this pretty transparently wrongful, lawful,
02:22and sometimes unconstitutional conduct, implement it quickly before anybody can put a stop to
02:28it and then say, up, up, you have to freeze in place.
02:32You have to stay and go with whatever we last did that was wrongful.
02:36And you know what?
02:37This court of appeals sort of just called them on that what I would call a dirty scheme.
02:44Here is just a couple of sentences from the opinion from the Ninth Circuit case.
02:49It says, the court has received the emergency motion to stay, in other words, stop and not
02:56require Trump's administration to begin rehiring these wrongfully terminated employees.
03:03The request for an immediate administrative stay is denied.
03:09Given that the district court, that's Judge Alsop, the trial court judge, found that the
03:14employees were wrongfully terminated and ordered an immediate return to the status
03:19quo.
03:20In other words, rehire them.
03:22An administrative stay of the district court's order would not preserve the status quo.
03:28It would do just the opposite.
03:29It would disrupt the status quo and turn it on its head.
03:35That is sort of an oblique way of the court saying, you, Trump administration, don't get
03:41to rush through something that's unlawful and then argue that, oh, you have to freeze
03:47that unlawful status quo.
03:49The appeals court said, no, actually the status quo is people being employed by the federal
03:56government and then you all trying to wrongfully terminate them.
04:01So we see what the Trump administration is trying to do.
04:05And this appeals court opinion, two to one opinion, sort of calls them out on it.
04:10So Glenn, the trial court had obviously ordered that Trump rehire these probationary employees.
04:15As it made its way up to the appeals court, Trump wanted to stay at that ruling, meaning
04:20prevent that ruling from taking effect while the case continued to play itself out in the
04:24appeals court.
04:25Obviously we find out now based on this two to one ruling that the judges in the appeals
04:30court weren't willing to stay or block this decision to allow these probationary employees
04:36to come back to work.
04:37So that's a win, but the broader case here is still being litigated.
04:40So can you speak about that?
04:41When is, when is this, when is the broader context of this entire case going to be litigated?
04:46Yeah, Brian, it's a great question because this is procedurally dense and we don't want
04:52to oversell the importance of any one court ruling.
04:56This is the kind of ruling that applies for the moment.
04:59It's important because it tells the Trump administration, um, no, you cannot keep in
05:04place this wrongful termination.
05:06You have to start rehiring these people.
05:09However, this is kind of a ruling for the moment or for the day because the bigger issue
05:16is still before the ninth circuit court of appeals regarding whether that lower court
05:21order should sort of remain in effect, whether it was right, whether it was lawful.
05:27And so this court, the ninth circuit court of appeals said, we deny your motion today
05:33for a stay Trump administration.
05:35However, we have ordered more briefs to be filed on the underlying issue of, you know,
05:42the lawfulness and whether this should endure longterm, meaning during the life of this
05:47entire litigation, which could take months and months.
05:50And those briefs are due March 18th.
05:53And then there will be more hearings on the underlying issue before the court of appeals.
05:58So these things are confusing.
06:00They're procedurally dense.
06:01This is a win for the day, but it's not a win yet for all time in this case.
06:06Glenn, on the screen right now, I'm going to put a headline from Axios saying that climate
06:10and energy agencies are hiring back probationary employees.
06:14So can I have your reaction to the fact that in response to this ruling by both the trial
06:19court and the appeals court right now, we are seeing steps being taken by this administration
06:24to comply with the court orders?
06:26Yeah.
06:27Headlines like that, Brian, are frankly very heartening because what that indicates is
06:32at least in the context of this case that the Trump administration is losing, has been
06:38losing and has now been ordered by courts to rehire people they wrongfully terminated.
06:44What are they doing?
06:45They're complying, apparently, given that Axios headline with those court orders.
06:51That's important because, you know, there is a parade of horribles going on every day
06:56in the Trump administration.
06:58But one of the things we have been keeping our eye on is will the Trump administration
07:03plunge us into a true constitutional crisis and just start defying, violating, refusing
07:10to obey all court orders?
07:13If so, then our democracy is in deep, deep trouble.
07:17Glenn, obviously we're going to wait for this ruling from the appeals court.
07:20The fact that they refuse to grant this stay that was requested by Trump is a is a step
07:25in the right direction.
07:26I think that's a good sign.
07:27I think we can maybe take something from the tea leaves on that.
07:30But really, ultimately, the final arbiter of this is going to be the Supreme Court.
07:34So how do you expect that the Supreme Court, do you have any indication of how the Supreme
07:37Court might rule based on their previous actions?
07:40And the second part of that question is, when can we expect some decision from the Supreme
07:45Court if they do indeed decide to hear this case?
07:48Yeah.
07:49So I think let me take the last question first.
07:52When?
07:53Probably pretty quickly.
07:54Why?
07:56All of these temporary restraining orders and preliminary injunctions are very disruptive.
08:01They're disruptive to the lives of the employees who are being wrongfully terminated.
08:06They're losing their paychecks.
08:07They're losing their health care.
08:09They may be losing their apartments or their homes, their houses.
08:13So these things need to be litigated quickly.
08:15And then the flip side of it is if these are lawful exercises of executive branch powers
08:23and authority, then it would be viewed as an inappropriate interference with the function
08:28of the executive branch.
08:30Of course, given the almost universal rulings in case after case from coast to coast that
08:35Donald Trump's administration is involved in illegal, wrongful, and often unconstitutional
08:41conduct, it seems like, you know, the people who are being victimized have the better of
08:46the argument when it comes to the exigency, the need to get these things resolved quickly.
08:51So I have a feeling on the timing front, we'll probably see this thing bubble up to the Supreme
08:56Court pretty quickly.
08:58Real quick question on that.
08:59Do we have to wait for the Supreme Court's decision days all the way in May, or is this
09:03the kind of thing that they would rule on immediately, given the nature of either having
09:07to get these employees back to work or not?
09:09Yeah, this is not a smart-alecky answer, Brian.
09:12Only the Supreme Court knows for sure.
09:15They can grab hold of these cases while they're still in a preliminary litigation posture
09:21with these temporary restraining orders and preliminary injunctions before there's ever
09:25been a full-blown evidentiary hearing on the merits.
09:29And the Supreme Court could say, you know what, we think the issue at stake is so grave
09:33and so far-reaching, executive branch power versus, you know, the rights of wrongfully
09:39terminated federal government employees, that we're going to grab hold of it now.
09:44Or they can do what they have done in the past and said, listen, we believe that these
09:49orders that have been put in place by trial courts and affirmed by federal circuit courts
09:55of appeal were properly handled.
09:57We are not going to grab hold of this one until this case has run its course, been fully
10:02litigated, resolved in the trial court, resolved in the appeals court, and that could take
10:07months.
10:08So, again, I'm going to go back to what sounds like a smart-aleck answer, but it's really
10:12not.
10:13Only the Supreme Court knows for sure.
10:15Okay.
10:16Now, the second part of that question, do you have any indication as to how the Supreme
10:20Court might rule based on past decisions?
10:22So the most recent decision is the one I'm holding fast to, Brian, as I suspect our viewers
10:28are, because the Supreme Court rejected the Trump administration's position.
10:34That had to do with whether the Trump administration had to pay on contracts that were entered
10:41into by the administration with USAID, U.S. aid, for services that have already been performed
10:48or goods that had already been delivered, and these government contractors were standing
10:53there with their invoices saying, I did my part.
10:56I complied with my contractual obligation.
11:00How about you pay me, federal government?
11:02Donald Trump didn't want to, and the Supreme Court said, guess what?
11:06The lower court said you have to, and we're not going to disturb it, certainly not at
11:11this early phase of the litigation.
11:13Let's hold on to that one, Brian.
11:15Let's hope that justice is trending as an indication that that was the last, the most
11:20recent Supreme Court ruling, and it went against the Trump administration, because we have
11:25to acknowledge that so many Supreme Court opinions prior to that one, they found a way
11:30to throw a bone to Donald Trump and give him whatever it was he was asking for, regardless
11:37of the pesky language of the Constitution.
11:39Well, I will grab on to whatever optimism we can find these days.
11:43So with that said, we will, of course, stay on top of this court case as it continues
11:47to make its way through the court system.
11:49Right now, we have a decision from the trial court, a decision from the appeals court,
11:54but this will still be litigated further in the appeals court, and then, of course, we
11:57have to wait for it to bubble its way up to the Supreme Court.
12:00So for those who are watching right now, if you want to follow along, please make sure
12:03to subscribe.
12:04The links to both of our channels are right here on the screen.
12:06I'm Brian Taylor Cohen.
12:07And I'm Glenn Kirshner.
12:08You're watching The Legal Breakdown.