Mark Chenoweth On Constitutional Executive Authority: How Far Does It Go?

Summary

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Federalist Radio Hour

Episode: Mark Chenoweth On Constitutional Executive Authority: How Far Does It Go?
Date: January 30, 2026
Host: Matt Kittle
Guest: Mark Chenoweth, President of the New Civil Liberties Alliance

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Overview

This episode dives deep into the constitutional and legal boundaries of presidential executive authority, with a particular focus on the president’s power to remove (fire) federal officials. Host Matt Kittle and guest Mark Chenoweth use the contemporary Supreme Court case concerning former President Trump’s attempt to remove Federal Reserve Board Governor Lisa Cook as a lens to probe the wider questions of executive power, administrative state boundaries, and judicial remedies. The discussion covers the statutes governing removal, the impact on the administrative state, democratic accountability, and the real-world implications for economic and political stability.

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Key Discussion Points and Insights

The Lisa Cook Case and Statutory Removal Standards

• [01:17–04:06] The case in question is Trump v. Cook, concerning whether President Trump can remove Federal Reserve Board Governor Lisa Cook. NCLA filed an amicus brief supporting presidential removal authority.
  • Chenoweth: “It's not so much that I want her fired, but that apparently President Trump would like to have her fired and that he has the constitutional authority to have that happen.” [02:07]
  • The legal focus is on whether the president followed the “for cause” removal standard set by Congress for Federal Reserve Board members. Trump cited Cook allegedly lying on a mortgage application as cause for removal.

The President’s Power to Remove and the Concept of “At Will” Service

• [03:33–06:21] Kittle asks about the broader tradition of serving “at the will” of the president, questioning whether independent agencies (like the Federal Reserve) change that dynamic.
  • Chenoweth: “Most of the principal officers that report to the President do serve at will... Really the only exception in that immediate circle... is the Vice President who is separately elected, of course. And so the President can't fire... the Vice President, but everybody else pretty much serves at the pleasure of the President.” [04:40]

Judicial Authority and Appropriate Remedies

• [06:21–10:23] Discussion shifts to the authority of district courts to enjoin presidential actions nationwide, with Chenoweth highlighting the traditional limits on judicial power:
  • Chenoweth: “District court judges cannot enjoin the president himself... The remedy that folks might have if they are improperly fired is not a remedy to enjoin them from being fired or a reinstating them to office. Rather, the remedy someone would have is pursuing back pay.” [07:54]
  • The question of whether officeholders have a “property right” in their office becomes central—Cook’s claim is that removal without due process deprives her of property unconstitutionally.

The Administrative State and Democratic Accountability

• [10:23–15:05] The nature of independent agencies is unpacked—both what “independent” means and how accountability functions (or doesn’t).
  • Chenoweth: “All of the executive power is with the President. And there’s three textual reasons for that... The vesting clause of Article 2... the take care clause... and the Appointments Clause itself... The removal power isn’t mentioned at all. Therefore there aren’t any restrictions on the removal power.” [11:49]
  • When an official acts “obnoxiously” to a president’s agenda, the discussion raises concerns about the loss of democratic control if the executive cannot remove high officials.

Impeachment vs. Removal and Separation of Powers

• [15:05–17:07] Impeachment is suggested by some as a remedy for problematic officials, but Chenoweth notes this is impractical and not what the Constitution prescribes for these positions:
  • “If you're trying to say the president can only remove someone from impeachment, well, what does he do if either the House or the Senate is in control of the other party? … That doesn't really seem consistent with him exercising his duty to take care that the law is faithfully executed.” [16:27]

Notable Supreme Court Arguments and Economic Implications

• [23:22–28:12] Justice Amy Coney Barrett raised concerns about public confidence and economic consequences if a Fed governor can be dismissed for political reasons.
  • Barrett (relayed by Kittle): “We have amicus briefs from economists who tell us that if Cook is fired, then it can trigger a recession. How should we think about the public interest in a case like this?” [24:19]
  • Chenoweth: “The Solicitor General... pointed out that when President Trump first fired Lisa Cook... the market went up for three straight days after that... I'm not so sure that removing just one governor from a... multi member board is going to have that impact.” [24:53]
  • Political context: The case is compared to Trump’s own prosecution over financial disclosures, with Chenoweth noting potential double standards.

Due Process, Notice, and Hearing

• [28:49–33:48] Central legal question—does Cook have the right to a notice and hearing before removal? Is a Truth Social post “enough,” or should there be formal process?
  • Chenoweth: “The statute says that the President could fire her for cause. It does not require notice in a hearing... The justices were not impressed with the idea that a Truth Social post was sufficient notice to her. They seemed to prefer something more formal…” [29:27]
  • Discussion of whether pre-office conduct (e.g., alleged misrepresentation before her term) can be grounds for removal. Chenoweth argues it can be, especially if it wasn’t previously disclosed to the Senate or president.

Prognosis and Broader Impact

• [34:52–39:08] Kittle asks for Chenoweth’s prediction:
  • Chenoweth: “I'll be a little bit surprised in the Cook case if they don't let him fire Cook, too. I heard something closer to a desire for a limited outcome for now among the justices... it certainly didn’t sound like they were overly eager to settle the constitutional question in a case where the president seemed to be following the statute...” [38:22]
  • Chenoweth notes a contrast in tone between this and recent similar cases, such as Trump v. Slaughter.

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Notable Quotes and Memorable Moments

• On constitutional executive power:
  “All of the executive power is with the President... any executive power that anyone else is exercising is derivative of the President... they only have executive power through the President under the Constitution.”
  — Mark Chenoweth [12:20]

• On property rights in office:
  “Office holders have not been thought, in the main, to have a property right in holding office… You might have an interest in the salary, but you don't necessarily have a property interest in holding the office itself.”
  — Mark Chenoweth [08:47]

• On political double standards:
  “Why should we have someone on there setting our interest rates who lied in a mortgage application…? That does seem to set up the possibility of a, a rule for, for thee, but not for me kind of situation.”
  — Mark Chenoweth [26:16]

• On judicial remedies and process:
  “District court judges Historically have not thought that they had that power to enjoin or reinstate someone to office… Rather, the remedy someone would have is pursuing back pay.”
  — Mark Chenoweth [07:54]

• On likely outcomes and Supreme Court approach:
  “I heard something closer to a desire for a limited outcome for now among the justices. And I don't know that it was hard to find five votes for any one outcome, but it certainly didn't sound like they were overly eager to settle the constitutional question...”
  — Mark Chenoweth [38:22]

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Key Timestamps

• 00:16 – Introduction and set-up of constitutional executive power question
• 02:07 – Chenoweth explains NCLA’s stance on removal authority
• 04:06 – Breakdown of “for cause” removal, independent agencies, and the president's at-will power
• 07:37 – Judicial limits: courts’ inability to enjoin the president or reinstate fired officials
• 11:10 – How “independent” agencies function under constitutional structures
• 15:05 – Democratic accountability, impeachment, and separation of powers
• 24:39 – Justice Barrett and public interest in firing a Fed governor
• 29:27 – Due process, the adequacy of notice and hearing
• 33:48 – Pre-office conduct and grounds for removal
• 35:34 – Prognosis on the Supreme Court’s likely leanings in Cook and Slaughter cases
• 39:29 – Wrap-up and closing remarks

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Tone and Style

The episode maintains a thoughtful, conversational, and slightly skeptical tone toward the reach of the administrative state and judicial remedies. Both Kittle and Chenoweth emphasize constitutional structure, practical implications, and the need for democratic accountability, while lightly critiquing perceived judicial and bureaucratic overreach.

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For anyone seeking a substantive, engaging discussion of how far presidential removal power goes—and what’s at stake for both government accountability and economic policy—this episode offers a thorough, accessible guide to current legal battles at the highest level.

Transcript

[A]

And we are back with another edition of the Federalist Radio Hour. I'm Matt Kittle, senior elections correspondent at the Federalist and your experience Sherpa on today's quest for knowledge. As always, you can email the show at radiohefderalist.com follow us on XDRLST. Make sure to subscribe wherever you download your podcast and of course, to the premium version of our website as well. Mark Genoweth, president of the New Civil Liberties alliance, joins us today as we ask the questions, the very important questions. What are the legal what are the constitutional limits of executive branch power, particularly the president's power to fire? That question was once again before the U.S. supreme Court. Thank you, sir, for joining us. I appreciate your time and I appreciate you being here with us on the Federalist Radio Hour.

[B]

Great to be with you. Looking forward to our conversation.

[A]

Well, I'll tell you what, this is tested over and over again, it seems, over the last year, or at least the question is put forward in the U.S. supreme Court. Just heard oral argument in Trump v. The case over whether President Trump can remove Federal Reserve Board Governor Lisa Cook from office. The New Civil Liberties alliance filed an amicus brief in that case urging the justices to let President Trump remove Cook. And NCLA experts tuned in and have, I think, an interesting point of view on this. I talked to one of your colleagues earlier this week, but why do you want this, this poor lady, this poor governor of the, the Federal Reserve fired?

[B]

Well, it's not so much that I want her fired, but that apparently President Trump would like to have her fired and that he has the constitutional authority to have that happen. So what we have tried to tell the, the Supreme Court and, and, and I think some of this came out in the oral argument, some of it didn't this week. But we tried to say, look, Congress set a particular standard for removal here. It's a for cause removal standard. But they didn't put a lot of specification behind that they have in other statutes involving other agencies. But not so much with the Federal Reserve. President Trump identified a putative for cause reason for Governor Cook's termination, namely that he believes that she lied on a mortgage application and so he fired her. And that really is where the story should end. But in this case, we had a federal district Judge who heard Ms. Cook's complaint and enjoined her removal from, you know, from the Board of Governors. So another off ramp that we need to keep in mind is that the court could just decide that district judges don't have the power to enjoin the President from firing someone and then they wouldn't even have to necessarily reach the set of substantive constitutional questions that we're, that we're largely talking about today.

[A]

It's interesting you say that because I have a question and I think a lot of folks are asking this question. Whatever happened to the idea of to serve at the will of the President? It would seem to me this would be the case therein that. But the Federal Reserve Board is, has long been seen in its 112 years as a quasi private entity. Doesn't at the will, however, still apply in this case?

[B]

So that's the constitutional question that, that in, in a sense the President didn't trigger because he went along with the statutory structure here and under the statute he had to specify a cause and he did so and fired her for that cause. And so he has not challenged. And for purposes of this case, the Solicitor General affirmed to the Supreme Court that the President is not challenging the constitutionality of that for cause removal standard. But you raise a good point because if the Supreme Court were to decide, no, you, you didn't do something right here, you, you didn't actually satisfy the four cause standard, then that might actually prompt the President to challenge the constitutionality of the four cause standard. And I don't know the extent to which the Justices are keeping that dynamic in mind. But this particular case won't tee that up because he did, he did follow the, the four cause standard, or at least claims to. And so the question they're really looking at is did he follow the statute or not? They're not so much looking at that question whether the four cause removal standard is, is constitutional. But, but to your larger point, most of the principal officers that report to the President do serve at will. If you think of the Secretary of State, the Secretary of the treasury, anybody in the Cabinet, those folks all serve at the pleasure of the President. The President's Chief of Staff, the White House Counsel, any of those people in the President's immediate orbit at the White House. Those folks all serve at will. Really the only exception in that immediate circle around the President is the Vice President who is separately elected, of course. And so the President can't fire, can't fire the Vice President, but everybody else pretty much serves at the pleasure of the President. So what is, what is different about these independent agencies is that Congress has purported to put tenure removal protections around the governors at the Federal Reserve Board or the commissioners at so called independent agencies like the Federal Trade Commission or the Federal Communications Commission or the Consumer Product Safety Commission where I used to work.

[A]

Is this in broader sense too? Is, is this a good test for the Supreme Court? I think about last summer when the.

[B]

Court.

[A]

Issued a, a ruling, an order, if you will, and said, addressed the district courts who have been issuing nationwide restraining orders, basically stopping the executive branch, stopping the president from, from doing this or that. There are a lot of different areas where these judges have entered into that to try to, you know, issue these nationwide orders. And the. No, no, you, you in the main, do not have that authority. Stop doing that. Well, that's exactly what we have in this case. No matter where this all goes, could the Supreme Court say, well, you've made these kinds of arguments, this is where this case stands. But also we want to remind you folks, and, and hopefully there is something that they can do to enforce it. But if you're at the district court level, you cannot act in a national capacity in this case or in so many others.

[B]

So I think this case is a little bit different in that particular regard because it really only involves the one person who is suing only Governor Cook. So the decision wouldn't have the sort of nationwide scope that you have seen from other district court rulings. The, the way that it's similar, though, is that I do think that the district judge here was exceeding his or her traditional authority. That is there, there's a long standing precedent and understanding that district court judges cannot enjoin the president himself. And so, you know, so that's one restriction. But there's also a long standing understanding that, that these, that the remedy that folks might have if they are improperly fired is not a remedy to enjoin them from being fired or a reinstating them to office. District judges historically have not thought that they had that power to enjoin or reinstate someone to office. Rather, the remedy someone would have is pursuing back pay. So if you were appointed for a term of years, for example, and you were improperly terminated, well, then you would have a right to the salary that you would have earned for that period of time. That's typically seen as the appropriate remedy. And one of the reasons for that is because office holders have not been thought, in the main to have a property right in holding office. So you might have an interest in the salary, but you don't necessarily have a property interest in holding the office itself. Now, I think that's sometimes looked at differently for Article 3 judges who are lifetime appointees, but for these folks who are appointed for lesser terms, again, historically, they haven't been thought to have a property interest in their office. So that is something that the Supreme Court is looking at in this case. Does Ms. Cook have a property right interest in her office? And one of the reasons the court is looking at that is because she's claiming she does. And she's claiming that that gives her a constitutional right to due process. So you can't be deprived under the Fifth Amendment of due process, or excuse me, of property without due process of law. So she's saying she's been deprived of property, I. E. Her office without due process of law. And so that notwithstanding what the statute says governing the Federal Reserve, that she has a constitutional right to notice and a hearing before being dismissed. And so that was something that the, that the justices were struggling with at the oral argument as well.

[A]

But doesn't that tell you all you need to know about the administrative state, Another administrative state, administrative stater is claiming that they have property rights in their, their job, their government job. And while it's a, maybe a quasi private entity, it very much is in terms of its regulatory power tied into the executive branch. But what about that? Again, you have this, this claim that this governor has of the Reserve Board has a right to the property of her job.

[B]

Right. So if folks talk about these independent agencies, and I think they mean at least two different things when they talk about that independence, one of them is that these are freestanding agencies, right? So something like the Consumer Product Safety Commission is an independent agency because it's not part of the Department of Commerce or some other department. It's an independent agency in that sense. But sometimes people are saying that they are independent in the sense of being independent from the President. And, and that's where we run into some difficulty. And that's where NCLA is concerned about how these agencies have been set up, because all of the executive power is with the President. And there's three textual reasons for that we can, we can talk about briefly in the, in the Constitution. The first is that the vesting clause of Article 2, that's the, that's the clause governing the executive branch, gives all of the executive power, gives the executive power to a President of the United States. So that language suggests that, that the executive power that the Constitution gives, all of it is given to the President. And so any executive power that anyone else is, is exercising is derivative of the President. And, and so they're not exercising some, the powers that come with some separate office they hold or some separate executive power they have, they only have executive power through the, through the President under the Constitution. The, the second textual clause of note is the take care clause under which the President has a duty to take care that the laws are faithfully executed. And the thought is that he can't really take care that the laws are faithfully executed if he can't remove the people who he thinks are being faithless or who are not doing what he thinks needs to be done in order to execute the law. And that's his duty under the Constitution. So he needs to be able to, to control those, I like to call them stubborn subordinates. Needs to be able to control those folks. The third textual provision that folks point to is the Appointments Clause itself. And you might say, well, the Appointments Clause constrains the President in his appointments. So for example, in appointing a Federal Reserve Board of Governors member, the Senate has to approve that the President doesn't just have unilateral appointment authority. Very true. But this, the clause and the Constitution is completely silent about the removal power. And the idea that, that many scholars have taken from that is, it's, it's sort of the dog that didn't bark, right? It's the, there are restrictions on the appointments power. The removal power isn't mentioned at all. Therefore there aren't any restrictions on the removal power. So if you put those three textual arguments together, the President is on pretty strong ground in claiming that he has the constitutional authority to remove someone, at least someone who's exercising executive power as Federal Reserve Board governors definitely do.

[A]

That's very interesting. Point number two, really, I think should be part of this case. But maybe it isn't in the narrow tailoring of it. But what happens if you have someone obnoxious to the agenda of the President? What if you have someone who is obnoxious to the goals that the President has set out and is working openly to against the administration? The President has no power even in this situation to remove someone like that. And I think there is a good body of evidence to show that. Lisa Cook does not share the President's views on monetary policy as well as a number of different issues. What does that do to a duly elected, duly elected President?

[B]

In that case it's a concern, isn't it, from a self government standpoint because the President is elected and so to have democratic accountability, we have that over the President. If he makes appointments that we don't like, then then there's at least the opportunity, maybe not for a lame duck President, but certainly to penalize his party in Congress during the midterms. And so Forth. So there are democratic accountability channels. If you have someone, whether it's someone at the Federal Reserve or someone at one of these other independent agencies who's behaving in a way that's obnoxious to the president, as you put it, and the president doesn't have control over that person, can't remove them from office, then where is the self government in that? Where is the democratic accountability in that? They're really isn't any. And Mr. Clement, who Rep. Spoke on behalf of, of Ms. Cook in the oral argument, suggested that, well, there's always impeachment as a remedy. But I thought the solicitor General had a good response to that, which is, well, wait a minute. The Constitution specifies impeachment for the removal of federal judges, but it doesn't, it doesn't talk about that for these other office holders. And so you would be restricting the President to something that the Constitution appears to reserve for people who are holding lifetime office or who have been elected, like the President or vice president. It's not to say that you couldn't impeach one of these folks. You could if the president didn't want to remove someone, for example, and the House were willing to impeach them and two thirds of the Senate were willing to remove them. That can happen without the President's assent. But by and large, if you're asking, if you're trying to say the president can only remove someone from impeachment, well, what does he do if either the House or the Senate is in control of the other party and wants this obnoxious person in office? Well, now he has no way of removing them. And that doesn't, that doesn't really seem consistent with him exercising his duty to take care that the law is faithfully executed.

[A]

Yeah, no doubt about that. You mentioned an interesting name to me. I want to get to that in just, just a moment.

[C]

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[A]

Mark Chenoweth is president of the New Civil Liberties Alliance. He joins us on this edition of the Federalist Radio Hour. Is it Paul Clement, who was arguing for Lisa Cook before the Supreme Court.

[B]

Yes, it was. And you know, love, love Paul. He, we worked with him. He was the counsel for Loper Bright in the Loper Bright case and we had the relentless case in the pair of cases that overturn Chevron deference. Very good attorney. Well, I'm sure we'll work with him. Well actually we are working with him on something else right now. But in this particular case we were, we were on opposite sides of the issue.

[A]

It is interesting to me because he, he was the former Solicitor General for the President, Joe Biden, correct?

[B]

Oh, not Biden for, for George, excuse.

[A]

Me, for George W. Bush. Yes, I apologize for that. And, but it's interesting to me that Clement was also recently, I think he still is on the legal team representing the judge in Milwaukee County, Hannah Dugan. If you recall, Hannah Dugan was indicted effectively for aiding and abetting or interfering at the very least with federal law enforcement agents in ICE in you know, basically allowing a, an illegal immigrant near her court or in her court to escape ICE custody. And the argument that that legal team had was, well, the judge is immune from, from any, anything that, that involves her court and that includes interfering in the, you know, the federal law enforcement officials duties. Well, again she was indicted and a federal jury in December convicted her of that particular charge, arguing that she did not have the authority to claim those sorts of things. Submit that there certainly was cause to remove her from the bench. There certainly was cause to indict her. But it's interesting that, that you have Paul Clement making these, these claims. That cause has to be, there has to be a process for this involving the case with Lisa Cook.

[B]

Well, I think that's just a function of Paul is a excellent, highly paid advocate who, you know, I'm sure has been hired in both cases to do what he does so well. And I don't, you know, unlike a public interest group like ncla, we probably can't ask lawyers in private practice to always be on the same side of, you know, some set of issues. I haven't followed that particular case very, you know, very closely. But, but I do think that though I think he did a fine job at the oral argument. I think some of the, some of the post, post argument commentary has suggested that the court might be leaning his way in the Cook in the Cook case. I hope that proves not to be true both because I think that it might prompt the President to challenge the constitutionality of the four cause standard and because I think if the court were to say, look, the four cost standard requires or limits you to firing someone for reasons of say, inefficiency, neglect of duty or malfeasance in office, which is a standard, by the way, that other agencies have. But that's not the standard that applies to Federal Reserve Board of Governors. If they were to say, if they were to import that here and apply that, I would be concerned both because I think that would essentially be the Supreme Court legislating from the bench and creating a standard that wasn't created by, by Congress and because I think that would tie the President's hands too much in terms of, of his ability to remove someone like Lisa Cook. I mean, we're talking about the independence of the Fed being important. And I know, you know, a lot of folks think about the interest rate setting function that, that they have, the sort of the open market function that the Federal Reserve has. And that's true. And maybe arguably we want to enter into some sort of Ulysses contract that that sort of prevents Congress and the President from, from playing with interest rates in a way that might lead to inflation. But even if we were to agree on that point, and obviously not everyone does, it's still the case that the Federal Reserve has a bunch of regulatory responsibilities like regulating credit card companies, regulating banks, and it writes ordinary regulations just like other agencies do. And at least in that part of what it does, the President certainly needs to be in a position to oversee that regulation and discipline folks, including up to removal of folks who aren't in line with the priorities and policies of his administration. And again, if he doesn't have that ability, then we have, then we've gotten rid of self government and I don't think that's where we want to be.

[A]

I think that's a great point. If you want to divorce those two things, the federal regulation from the monetary policy and what the board is set up to do and what the Reserve is set up to do is to do a lot of things. Then Congress has the responsibility of taking those two things and separating them and putting someone under the executive branch. And then. I know there are other questions involving that, but you raise a good point. Justice Amy Coney Barrett cited issues, as you mentioned, with public confidence. Should the President be cleared to fire a sitting Fed governor without fully explaining or justifying the reasons? I think he has explained and I think he has justified the reasons, which we'll get into in just a moment. But this is what Barrett said. We have amicus briefs from economists who tell us that if Cook is fired, then it can trigger a recession. How should we think about the public interest in a case like this? I'll ask you that same question, but I'll also already point to a follow up question and that is, is that the business of the court to consider?

[B]

Well, I think the Solicitor General's response to that question, if I, if I remember correctly, was to point out that when President Trump first fired Lisa Cook back in August, I believe it was that the market went up for three straight days after that. So just from a, you know, from a, yeah. Empirical standpoint, the Solicitor General was suggesting maybe the markets aren't so concerned about the President being able to, to remove one of the 15 members of the Federal Reserve Board. After all, it's not the case that removing one Federal Reserve Board governor is going to tip the scales on what we're doing with, with interest rate setting. You know, if he were for example, threatening to fire 10 of them and replace them all with his acolytes or something like that, maybe the concern that she stated would, would be more on point. But I, you know, I'm not so sure that removing just one governor from a multi, from a very large multi member board is going to have that impact. As to whether the court should take such prudential concerns into account, you could argue that, that they shouldn't, but the reality is that they will and that they do. And, and so I think as an advocate, one has to be prepared to, to counter those prudential concerns. And for me, the Solicitor Solicitor General, John Sauer, did a pretty good job of that. He pointed out that plenty of people would be concerned if she stayed or continues to stay on the Board of Governors. Why should we have someone on there setting our interest rates who lied in a mortgage application in order to secure a more favorable interest rate for herself? That, that does seem to set up the possibility of a, a rule for, for the, but not for me kind of situation. That frankly is exactly the kind of attitude that got President Trump elected by the masses to begin with. So you can understand why he might take a particular viewpoint toward that. And as a colleague of mine pointed out today, the case that Leticia James brought against President Trump up in New York. Yes, that was similar to this. They said, well, you, you had, miss you, you had information that was inaccurate in your application. His response was, well, I, the bank was never misled. The bank did its own due diligence. The bank had a full understanding of this. In, in his case, the bank even testified to that effect, that they were not misled. And, and so, you know, nonetheless, now that case is on appeal, but nonetheless, he had a 500 million dollar judgment or something like that against him in the, at least in the trial court. And I know that the, the court of appeals had a sort of a strange mixed response to that, but, but, but largely favorable to him. And you know, he may look at the situation with Lisa Cook and think, well, gosh, that looks a lot like what was considered inappropriate by, you know, by this other, in this other instance where I was involved. If, if, you know, if I'm going to get slapped down for that, why shouldn't she get slapped down for that? Now, I don't know that that's what his thought process was. He hasn't said that. I haven't, you know, I don't pretend to be able to read the President's mind.

[A]

I think there's some of that there.

[B]

You know, it's not crazy to think that, that he might be particularly sensitive to this, this kind of, this kind of violation.

[A]

Yeah, no doubt about it. There's a lot of that for thee, not for me going around, including with Letitia James, serious allegations against her. Whether that'll be revisited or not remains to be seen. But Lisa Cook is charged with some very serious things and it's not, let's put it in perspective too. She's charged with fraud, a financial fraud she is not working in. Well, think of any number of positions where that isn't a primary concern.

[B]

Yeah, the National Park Service, it might not be such a concern.

[A]

Exactly, exactly. Unless you're dealing with an auditor or, you know, an accountant or something like that. But yeah, someone in the National Park Service does not have the same kind of causal issues on that front. This clearly is a matter of cause, although the argument is she hasn't had her time in court or a hearing to, to explain herself. And I guess that's the question, and that's the question the Supreme Court is, is dealing with. Is that a necessary requirement? And what do you think about that?

[B]

Right. Does she get a notice and a hearing is, is another way of asking that question. And, and she, the statute doesn't say that. The statute says that the President could fire her for cause. It does not require notice in a hearing. Now, there's an argument over whether the traditional restriction of for cause sort of brings with it. They talk in the oral argument about the old soil of that sort of, of that sort of, of provision bringing, you know, coming along with it, the idea of notice and comment, but certainly the text of the statute not notice of comment, notice and hearing. The statute doesn't, doesn't by its text require notice and hearing. And so unless the Constitution requires notice and hearing because she has a property interest in the office and due process requires her to, to have a due process which would usually be thought to include a hearing before being deprived of the office, I don't know that she has a lot of ground to stand on now. That said, the justices were not impressed with the idea that a Truth Social post was sufficient notice to her. They seemed to prefer something more formal than that. Whether the, you know, whether they're just behind the times and, and a social media post is, is sufficient notice. You know, I, I think is a close question. I think it would be better to send us some sort of a formal letter to someone. And then the question is, did, did she have an adequate opportunity to respond to those charges within the five, I think it was five days between the Truth Social post and his, his ordering that, that she be fired? And you know, in what way would she respond to that? Would she, would she post something on social media herself? You know, at no point was she apparently called to the White House for a face to face meeting. And you know, I, I joke with someone on my Unwritten Law podcast that you, you could, you could see a situation, kind of a celebrity apprentice table where, where President Trump brought someone in and gave them some period of time to defend themselves from the, from the charges and then said, okay, well you're fired. That's not good enough for me. Chief Justice Roberts, in the oral argument, ask the question, well, sort of, what's the point of requiring that? Because it's not, as she's not contesting the fact of what she did, she's contesting whether she did it with fraudulent intent. She's saying it was a, you know, it was sort of a paperwork error. It was something that, like an oversight, not something that she did deliberately. But she's not, she's not contesting that, for example, the document is forged or that's not her signature or she never bought that property or, or she didn't check that box that, that indicated that it was a primary residence. So there's not really a lot of facts to be sorted through. And then, you know, she might have some legal arguments about how relevant those facts should be to the question of her removal. But who's the decision maker there? And isn't it ultimately the president if you have a four cause removal standard? Some folks are trying to say, well, this was pre office Conduct and anything that's pre office conduct is not a reason that you can be removed. Justice Alito had some fun with that at the oral argument. He's, he, he sort of trotted out a bunch of hypotheticals of different things that might be pre office conduct that you, you really want to take the position that someone can't be fired for, you know, this parade of horribles. And I think you get to the point pretty quickly where you realize, eh, we can't say that you could never be removed for pre office conduct. I think what some folks have said and I think this is somewhat compelling is look, if this is something that was disclosed to the Senate and the President knew it when he appointed you and the Senate knew it when they confirmed you, then maybe a subsequent president can't relitigate those facts and fire you for that pre office conduct. But the idea that there's no pre office conduct for which you can be removed from office, I think that's a bridge too far and I don't think the Supreme Court's going to say that.

[A]

Yeah, I believe cause too can include incompetence. And I think if you are caught making such grievous mistakes on your mortgage forms, as someone who wants to be a governor on the board of Reserve and I think one could ask some questions, are you capable of doing the job and this shows you're not and there is cause right there. All of that said, I think Trump probably should have just sent his truth social post via fax to her and then that would have accounted for a formal document. Final question for I really appreciate your perspective, your expertise.

[B]

Can I just jump in to say. Yeah. Say one thing which is you're exactly right about, about that point and on negligence and that is in fact what the argument of the Solicitor General was. He wasn't saying she committed fraud. He said, look this, even if this is gross negligence, that's enough for the President to fire her. And that's what we are assuming occurred here. And, and that's why he wants to remove her.

[A]

Every headline I read from, you know, the usual suspects in corporate media is something to the effect that justice is reluctant to side with ch Trump. Justice won't be siding with Trump. Looks like Lisa Cook, her goose isn't cooked. Whatever it is, they believe at least the stories push the idea that there's no way that this court is going to even this narrow tailoring is going to allow the President to fire this governor of the Federal Reserve. What do you think ultimately will happen here?

[B]

Well, it's certainly true that the tenor of the oral argument was very different than the tenor of the oral argument in last month's Trump v. Slaughter case about whether he can fire Rebecca Slaughter from the Federal Trade Commission. I think most of the commentary was the other way. After that oral argument, it really sounded like the court was going to let the President fire her. And interestingly, the standard there isn't just for cause. It is a sort of an inefficiency, neglect of duty and, and malfeasance kind of, kind of standard there. But they, they seemed comfortable with, with letting him fire Slaughter. As I say, the tenor was very different with Cook. The Federal Reserve is different, apparently, in the eyes of many of the justices, perhaps all of the justices. And so there you didn't get the same sense that they were ready to go along with the President firing her without, without saying anything else. But I also heard a real desire to do something more limited in this case that might involve not reaching the substantive constitutional question either, because they take that off ramp and say, look, the district judge here issued a stay. That's not allowed. You can't, you know, you can't join the President. You can't stop this kind of, of firing, you know, in, in progress. The remedy is, is, is only ex post. They might say something like that, or they might say something like, look, there wasn't enough, you know, we're not saying the President can't fire her. We're just saying there wasn't enough notice and hearing here. This is what we think the notice needs to look like. This is what we think the hearing needs to look like. If the President wants to go back to square one and provide notice and provide a hearing, and, you know, then we will have a different question in front of us. I don't know that they'll do that because I think it would be a little bit pointless, or at least the Chief justice seemed to indicate that. But that would be another way that would maybe buy them some time or, or let them not reach the, the substance of it. Or they might just say, look, we're going to let this particular firing happen. But we're doing that because we think that the four cause was followed here. And what we're saying is that this is justiciable. The question of whether for cause was followed or not isn't something that we're just going to say is beyond the ken of the judiciary. We actually think people can bring these cases if, you know, if, if the four cause provision hasn't been honored and sort of throwing down a gauntlet, if you will, for future cases, sort of telling the administration, look, we're not just going to let you come up with pretextual reasons for firing someone for cause, but we are going to let you do this one. And so that might be another way that it would come out. I'll be very surprised if the Slaughter case comes out, not allowing the firing there. But I'll be a little bit surprised in the Cook case if they don't let him fire Cook, too. I heard something closer to a desire for a limited outcome for now among the justices. And I don't know that it was hard to hard to find five votes for any one outcome, but it certainly didn't sound like they were overly eager to to settle the constitutional question in a case where the president seemed to be following the statute or certainly claimed to be following his statutory authority.

[A]

Very interesting. I say this every year. I've said this for the last several years. This is an unprecedented year for the Suprem Court. It seems like every year is unprecedented. Very fascinating stuff. We'll be keeping an eye on this. I know you folks at the New Civil Liberties alliance will be for sure.

[B]

We love these cases. I like to say that we've been, we've been making administrative law funds since 2017. And folks are welcome to go to our [e-mail] and learn more about our brief in this case and the other cases that we've been working on, sometimes for the administration, sometimes against the administration.

[A]

Now you have a T shirt or a bumper sticker that says that?

[B]

Not yet, but we need one, don't we?

[A]

Okay. I think so. That would be great. Thanks to my guest today, Mark Genoweth, president of the New Civil Liberties Alliance. You've been listening to another edition of the Federalist Radio Hour. I'm Matt Kittle, senior elections correspondent at the Federalist. We'll be back soon with more. Until then, stay lovers of freedom and anxious for the fray.