00:05On the nature and circumstances of the case before us.
00:08So there are certain circumstances that would cause you to recommend to the administration that it defy a lower court order.
00:16Well, Senator, for example, in some circumstances, in order for a court order to be challenged, an official must be held in contempt.
00:23And so, yes, it is possible that we could get there.
00:27However, I would be remiss were we to go down the path of talking about hypotheticals, because, as I say, I can never imagine a situation in which I would be asked to give that advice.
00:36Chairman, thank you for your generosity with my time.
00:38I appreciate it.
00:39Thank you all.
00:39Senator Kennedy.
00:43Thank you, Mr. Chairman.
00:47Gentlemen, I don't want to spend a lot of time on this, but I also don't want to debate.
00:58How many lawyers can dance on the head of a pen?
01:01I think you understand where a lot of these questions are coming from.
01:08Mr. Geiser, would you ever advise a client to ignore a federal district court opinion?
01:17Thank you very much, Senator Kennedy.
01:21I would advise it.
01:21You don't want to thank me.
01:22You can thank me by answering it.
01:24I would advise a client on how best to comply with all lawful court orders.
01:30Is that a yes or no?
01:31Yes, sir.
01:31You would advise a client not to follow a federal district court opinion?
01:39I would advise a client to follow court orders.
01:43Would you ever advise a client not to follow a federal court of appeals decision?
01:51I had the privilege of clerking on two federal courts of appeals.
01:56Is that a yes or no?
01:57Yes.
01:58I would advise them to follow the orders of courts of appeals.
02:01How about Supreme Court opinion?
02:03Yes, Senator.
02:05I would advise them to follow the Supreme Court's orders, as President Trump has been very clear
02:09that those orders are to be followed.
02:12Mr. Woodward, let me ask you the same question.
02:15Would you ever advise a client not to follow a district court opinion?
02:21No, Senator.
02:22Would you ever advise a client not to abide by an opinion of the federal court of appeals?
02:33No, Senator.
02:34Again, it's difficult to answer in the hypothetical, but...
02:36Would you ever advise a client not to follow an opinion by the United States Supreme Court?
02:43No, Senator.
02:44As the President has been clear, he will follow all orders of the United States Supreme Court.
02:48Tell me what I would need to do under the APA, the Administrative Procedures Act, if I want
02:57to change the current rule.
03:02Well, Senator, as a senator, you would pass a law that would change the...
03:08No, no, no, no, no.
03:10I don't want to play games here, Counsel.
03:13What would one have to do?
03:15What would the head of an agency have to do to overturn a current rule and regulation?
03:24Well, Senator, I apologize.
03:26I know that there are many ways to do that, and I don't want to play games either.
03:29I want to answer the question.
03:30That's fair.
03:31There are many ways in which an agency can overturn a rule.
03:34Well, you have to give notice, right?
03:37As a general matter, yes, Senator.
03:39And you have to invite input, right?
03:42As a general matter, yes, Senator.
03:43Okay.
03:45And sometimes you have to hold a hearing, right?
03:47Sometimes you do, Senator.
03:48Yeah.
03:49Are there any exceptions to that under the Administrative Procedures Act?
03:54Under the Administrative Procedures Act, I'm not aware of any exceptions, but there are exceptions
03:59under the law.
04:01Okay.
04:02Are you familiar with the good cause exception to the Administrative Procedures Act?
04:09Senator, I am vaguely familiar with that exception.
04:11Okay.
04:12Do you know what it says?
04:14No, Senator, I do not.
04:15I understand.
04:18Here's what I'm driving at.
04:21Are you familiar with the Supreme Court's case called Loper-Brite?
04:26Senator, I am vaguely familiar with the Supreme Court's decision in Loper-Brite.
04:29That overturned Chevron doctrine, right?
04:31The Chevron deference doctrine.
04:32Yes, Senator.
04:33If there is a rule promulgated by a prior administration or even by a current administration that is in
04:48clear violation of the United States Supreme Court's pronouncement under Loper-Brite, ruling
04:59unconstitutional the Chevron doctrine, would it be possible?
05:07Strike that.
05:08Would it be prudent for the Justice Department to exercise authority under the good cause
05:20exception to the APA in the public interest and forego the notice and comment?
05:30So, Senator, thank you.
05:32I think I now understand your question.
05:34And that is the – I was alluding to the non-APA process.
05:38I mean, if a rule has been promulgated that is plainly unconstitutional, it absolutely would
05:44be appropriate for the Department of Justice to look at that rule and make a determination.
05:48My point is, you don't have to ignore the APA to do that, do you?
05:55I would say it depends, but I take your point.
05:58I mean, the APA provides an exception.
06:00Yes, Senator.
06:01It's section 553.
06:05It's right there, big as Dallas.
06:08Am I done?
06:09Yeah.
06:10I thought that was maybe a mouse or something.
06:12Senator.
06:13Senator Kuhn.
06:14Thank you, Chairman Grassley, Ranking Member Durbin.
