Show Notes
Jack Goldsmith is joined by Professor Aditya Bamzai of the University of Virginia Law School. They discuss the president’s constitutional removal power, whether the president satisfied the statutory “for cause” standard in firing Cook, why that issue is hard, whether Cook’s pre-Fed actions are relevant, whether Cook gets notice and a hearing before firing, and whether a reinstatement remedy is available. This is an edited transcript of an episode of “Executive Functions Chat.” You can listen to the full conversation by following or subscribing to the show on Substack, Apple, Spotify, or wherever you get your podcasts. Jack Goldsmith: Good morning. This morning, I’m going to talk to Professor Aditya Bamzai at the University of Virginia Law School about the President’s firing of Lisa Cook, a member of the Federal Reserve Board of Governors. Aditya is an expert on the removal powers of the President, and he’s also an expert on removal in the context of the Federal Reserve, so he’s the perfect person to talk to us about these issues. So I’m just going to briefly go over what happened, but thanks for doing this, Aditya. Aditya Bamzai: Thanks so much, Jack, for having me. Good morning to you. And you did leave out my most important credential, which is: I was once a civil procedure student in the class of Professor Goldsmith back in the spring of 2002. I take full credit for all of your success. OK, so Monday the president fired Lisa Cook, a member of the Federal Reserve Board of Governors. The relevant statute, which is 12 U.S. Code § 242, prescribes the term for the governors and says they shall—I’m quoting—“hold office for a term of 14 years unless sooner removed for cause by the President.” And those words, “for cause by the President,” are going to be very important. One big question here is going to be: What counts as a for-cause removal? Unlike many other removal provisions that are strewn about the U.S. Code and at issue in Supreme Court decisions, this one—I’m going to call it a naked for-cause provision—does not specify any criteria for removal. The standard criteria (and there are many variations) for removal are things like inefficiency, neglect of duty, or malfeasance in office. Those things, by the way, tend to focus on what happens in office that may be relevant. But those criteria are not present in this removal statute, which is going to be very important. This is a simple, undefined for-cause removal provision. So Trump claimed to fire Cook for cause. I’m reading the cause was allegedly false statements that she made on two mortgage agreements from 2021, before she became a member of the board. President Trump said that those alleged false statements deprived him of confidence in her integrity and honesty, and that is the cause for removal. The last thing I’ll say is that even though the president invoked the statute and gave that as his reason—the for-cause provision as his reason for the removal—he also cited Article II of the Constitution. He said he was exercising the powers vested in Article II: both the executive power vested in him and his duty to take care to faithfully execute the law. So that’s the situation. I want to get into the legal issues here, but can you just start off with a brief primer on presidential removal power—what it’s about, where it comes from? Absolutely. The first thing I want to say on that is that there’s a lot that could be said, and we could easily have an hour of conversation over that topic alone. This is certainly a disputed issue in which people have differences of opinion. So in giving this very short summary, I’m no doubt dropping things on the floor and not covering the whole— Sure, of course not. I mean— Yeah. So look, the question of who’s the head of the executive branch comes up at the Constitutional Convention, and there are proposals to have a multi-headed executive, not just a single head. And then, famously, we come out of the convention with a Constitution that h
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