“It’s not as if you can replace these people overnight,” says Kash Patel. “What’s Joe Biden going to do? Eliminate the tip of the spear of the United States military?”
In this episode, we discuss the growing challenges to vaccine mandates, from the Special Forces to law enforcement. “We’re talking about hundreds if not thousands of people across the country.”
Below is a rush transcript of this Kash’s Corner episode from Oct 15, 2021. This transcript may not be in its final form and may be updated.
Kash Patel: Hey, everybody. And welcome back to Kash’s Corner.
Jan Jekielek: I think on everybody’s mind these days are vaccine mandates. President Biden has issued, I think, back in September 9th, the vaccine mandates for the workplace, any workplace over a 100 people. People are going to need to be vaccinated or get weekly testing, as I understand it.
Now, just recently, we have Governor Abbott, who’s issued a counter mandate, if you will, the vaccine mandates, there’s no business in Texas that can do that. A lot of questions on people’s minds, what does this mean? Which one is actually going to hold true? How’s this going to work?
Mr. Patel: Well, if I could predict that with any degree of certainty, I should just go play the Lato. But I’ll lay out what I think is the legal groundwork for it, and then where it’s heading in that specific area of states versus federal.
So there’s this Act, OSHA, O-S-H-A regarding health across the country. It’s a federal statute, federal law. So applies across the country that President Biden used to both write his executive order, and the Act itself is the mechanism by which they’re supposed to implement it, if they’re following the Act.
And what the federal law says, is that, and this is a simplification of it, if there is a grave health concern, then under this OSHA Act, the president through OSHA can regulate certain sectors of American industry. Let’s call it from coast to coast. If there’s a grave health danger.
So the question that hasn’t been answered, because COVID, it is two years old, but it hasn’t been determined by any federal court, whether or not COVID, the virus, is a grave health concern under the OSHA Federal Act. And so that’s the question that the federal court, a judge is going to have to answer.
And here’s what I predict on that front. As our viewers know, federal judges sit across the country, and then the country is sort of split up into different circuits, as what we call it, numbered circuits, regions. And so those federal circuits don’t necessarily have the same exact law as the next one.
And as you go up the appellate system, from the district court to the circuit court of appeals, then you have the Supreme Court, who decides the law for the country.
And on an important legislation and important executive orders like this one, I suspect this is going to go up to the Supreme Court pretty quickly, because there will probably be different appellate courts throughout the country that decide differently on whether or not COVID is a grave health concern under OSHA, so that President Biden can enact his executive order, which I think we’ll get to here.
Mr. Jekielek: So there’s a lot of nuance here. I mean, this is really fascinating. Because, for example, I think for the first time, that I’m aware of, The New York Times actually published and talked about in a very prominent article, the basically age distribution of deaths, the age distribution of risk effectively for COVID.
And so on the very low end, very young people are at very, very minimal risk. Unvaccinated young kids, and so forth, extremely low risk. According to these tables. Actually this data has been replicated, has been around for a very long time, whereas people on the high end, 70 plus and so forth, are actually at significantly higher risk.
So you’re talking about something that is a broad application across everybody. I’m not a medical doctor, but from what the data says, the risk is just so tiny to young people and significant to older people.
Mr. Patel: That’s a great distinction, because the Act just says, is X a grave health concern, right? It doesn’t say, is it a grave health concern for this group, and this group, or this age bracket, or this region of the country, it just says grave health concern.
So that’s a great point that I’m sure people are going to have to grapple with, because if you’re, and I’m just making stuff up here for purposes of example, but if you’re under 40 years old and the statistics show that your chances of dying from COVID are very, very low, then it’s going to be hard for the Biden administration to go in a federal court and say, it’s a grave health concern.
Now, the flip side is, maybe they’ll go into federal court and use statistics that say, if you’re over 50 and you get COVID, your chances of dying go up. I don’t know the stats off the top of my head, but those are the types of arguments they’re going to have to make. Now-
Mr. Jekielek: There’s a thousand fold difference, basically, across the spectrum.
Mr. Patel: I didn’t know that. So that’s going to be very… If I were a federal judge, I would say, how can you say under OSHA that COVID is a grave health risk if the scale is, as you say, a thousand fold different. It might be a grave health concern for this end of the scale, but what about 75% on down to zero? If it’s not, then how do they meet that standard..
Mr. Jekielek: And the working population, because the real threat, again, from the data that I’ve seen, is to the people that are already kind of outside of the workforce, which would be typically mandated in. Or I would imagine, would be outside of the workforce.
Mr. Patel: So I think this mandate, as you alluded to earlier, speaks to companies that have a 100 people or more. So it’s also going to be a deciding distinction, going a step further and saying, “Not every company is going to be mandated under this executive order that President Biden issued.
It’s if you have a 100 employees or more.” Well, how do they come up with that number. And are you talking about a 100 employees or more at a bar, or are you talking about a 100 employees or more at elderly daycare center? These are widely varying, as you said, on the distinctions of people who are susceptible to COVID, and if they get it, what’s the impact on their body and their immune system and are they actually going to die?
And so the younger crowd, very, very unlikely that they will. So not a grave health concern. The older crowd, probably so, especially if they have preexisting conditions or complications. So it’s going to be interesting.
The other issue. I mean, we’ll get to the private companies like Boeing and all that and United Airlines and Southwest in a second. But the whole state versus federal law issue comes into play, which you mentioned with Governor Abbott in Texas. I think Ron DeSantis did something similar in Florida.
Mr. Jekielek: I think Ron DeSantis’s issuing fines from what I understand for any business, which forces mandates.
Mr. Patel: And it’s going to be easy. So I think Texas, as you said, basically issued a law that said, okay, we’re going to counteract an executive order, right? This gets really complicated now, because it’s not a law, Joe Biden’s executive order is not a federal statute. It’s an EO.
And so EOs have much less authority against state law than a federal law would. That’s the whole thing hence we call it separation of powers. And the Supremacy Clause in the Constitution comes into play. Basically, if there’s a state law and a federal law that speaks to the same issue, the federal law trumps the state law, unless the federal law’s unconstitutional.
That’s like the simplest way of putting it. But here you’re not talking about, and I know Jen Psaki went to the podium and cited the Supremacy Clause, but here you’re not talking about a federal law. You’re talking about an executive order enacted through a federal law.
So one, is there constitutional to do it that way? Two, is it a grave risk? And three, the judges are going to have to decide in these districts, like Texas, I’m sure it’s going to court, if it’s not already on its way, does the Supremacy Clause even apply and if so, how? And they’re going to have to define whether or not it’s a grave risk.
And then the third step under OSHA, which we didn’t discuss was, this executive order, if it’s constitutional permissible is an intermediate fix. The president and OSHA have to, per the federal statute under OSHA, which was enacted, issue a permanent solution. That’s what the federal statute says.
So I don’t know what the permanent solution is. So is this just a band aid, because that’s all this federal statute permits. And what’s the federal solution going to be? I think that’s even more problematic.
Mr. Jekielek: Here’s the other piece. So I’ve heard Dr. Jay Bhattacharya, one of the authors of the Great Barrington Declaration on the show. He was talking about how he expects that COVID will basically go through the population and not too long a course of time, so to speak.
We’ve had Alex Berenson recently on Joe Rogan, talking about the same thing. That’s the reality. We also have this reality that the vaccines, basically, only kind of initially stop infection and transmission and very quickly fall off. So infection and transmission are not things that really the vaccines can help with. What they do seem to help with is serious disease. So…
Mr. Patel: Raise whole more questions.
Mr. Jekielek: Right.
Mr. Patel: Again, I’m also not a doctor to my parents chagrin. But is this a vaccine? Like I get the flu shot, but it’s not a flu vaccine because it doesn’t guarantee you’re not going to get the flu. And so I analogize this situation to that, because people get the flu every year. Unfortunately, lots of elderly people die from the flu every year. A lot actually. And it’s been around for what? Over a century?
And so the vaccines that people have been taking that are now mandated under this EO… The scientific studies are showing that people who actually get the vaccine, a lot of them are getting COVID. So it’s not a vaccine under the… As I view what a vaccine would be. You take it to-
Mr. Jekielek: At least the original definition because… By the way, the definition has been changed from what I understand to include these types of mRNA. It was changed because the mRNA vaccines are a new product. They have a new way of functioning, basically.
And so again, this type of functioning of a product has been now added to the definition of vaccines. So technically, according to the new definitions, they are vaccines.
Mr. Patel: I think that’s what frustrates people, right? Most people across America aren’t doctors, aren’t into all the nuances in medical definitions. They’re like, “Oh, vaccine. I get the chickenpox vaccine when I’m a kid, so I don’t ever get chickenpox.” That’s how most Americans think. So they see COVID vaccine and they think this is a vaccine.
Mr. Jekielek: So they think that it basically prevents infection.
Mr. Patel: Yeah. And that’s why many people… And I’ve always said this to people, I recommend you take the vaccine, but I do not support any mandate of the vaccine because there’s so many health situations that people have encountered that would, actually, if they took the vaccine, it would be bad for them.
Actually, I’ve heard of many women who are trying to have babies that their doctors have recommended not taking the vaccine to them because of complications during pregnancy that matter to arise.
So that’s just one area where are you going to force a company who has over a 100 people to take a vaccine, or you going to mandate the vaccine to those who their medical doctor are saying, “If you take that your chances of getting pregnant go down. Or because you have this virus or this disease, previous existing condition, it’s going to complicate your health.” How can you mandate someone to get sicker?
Mr. Jekielek: And then there’s another element too, which is of course, the elephant in the room all the time is the natural immunity element. Which is, essentially, again, based on the data, as my limited understanding, but there’s a heck of a lot of data that basically says the same thing. Which says that natural immunity is very robust, and much more effective, and even preventing infection, and certainly serious disease than the vaccine. So it’s effective to have it.
Mr. Patel: And what do those people do that have had it, and have built up the auto-immunity themselves. They’ve had it, they have better protection, as the science shows, than any vaccine would give them.
But a lot of these mandates are saying you have to go get the vaccine anyway. What’s the point? And then they can’t get into restaurants or wherever they go, unless they show their vaccine card pursuant to this mandate. So I haven’t seen any addressing by this White House of that specific issue to say, “Well, what if you’ve had COVID, and you have the antibodies, then do you need a vaccine?
Mr. Jekielek: And this is one of these things that you would hope and there would be some fairly large scale study going on to establish, what is the prevalence of people with natural immunity within the population. Because that I think obviously incredibly significant beyond the prevalence of vaccination in the population and so forth.
And I just might add one more thing. There are companies like I’m aware, for example, that Intel has decided that in its rules, it counts natural immunity, it counts antibody count instead of vaccinations.
That’s another interesting approach, aside from the question of whether it’s ethical or reasonable to have mandates at all, if you are going to have some kind of mandate. At least this company has decided that natural immunity does count towards that.
Mr. Patel: And that should be their choice. That’s my opinion. But then how does that square with the executive order. And then that’s another thing that this administration hasn’t taken into account when they issued the executive order. And that’s another thing they’re going to have to answer in federal court. And they’re probably not going to have a good answer for it, because they’re saying this large company has issued its own set of rules.
And so I think you’ll see individuals from that company eventually challenge this EO, like other companies that we’re going to talk about in a minute are. But just circling back to something you said right before that, the information about COVID and the vaccine and the signs behind it, there’s such great distrust right now across the country in what to believe, because there’s been so much misinformation put out about it.
But also there’s been information that when the virus first came out, people thought was correct and was later proven to be incorrect. And unfortunately, you have guys like, in my personal opinion, Fauci who have lost… He’s supposed to be the leading voice on how to deal with COVID, and he has become one of the least credible voices, in my opinion, on how to deal with COVID.
Because, first, he comes out and he says, “We’re going to have this under control and there’s going to be a vaccine. It’s going to be alright.” Then he comes out and says, “No Christmas.” And people are just like-
Mr. Jekielek: Or, “We’re not sure.”
Mr. Patel: “We’re not sure.” Your lead medical expert in the U.S. government is supposed to be able to communicate information credibly. And I think what is hurting America’s reaction to COVID is that they don’t don’t have any actual guidance from their government.
So they have a lot of distrust on mandates, on vaccines, on work atmosphere, and on how to challenge their legal rights. They just don’t know. And I think that’s why you’re going to see, not just a small amount of flurry of court cases across the country that have already started, I think.
Mr. Jekielek: So the question is why not institute, let’s assume, modicum of transparency and just say, “Look, here’s what we know. Here’s what we don’t know. Here’s what we’re working on. Here’s what the best information on the science.” I don’t know, have a website that shows these things.
Mr. Patel: That’s a great idea.
Mr. Jekielek: Because people do want clear cut… I do think it’s true that people want to know the answer, “How can I protect myself a 100%?” But that doesn’t exist. Everything is factors of risk. You’re going to take the vaccine. Nobody knows what the side effects are going to be five years down the line, tens, no one knows because these are new products.
This is one of the arguments I’ve heard from ethicists, or example. How can you mandate something where there’s this unknown risk on something nobody can know? It’s not something that can be known by anybody at this point. Shouldn’t someone be able to make that decision for themselves? “Am I going take that risk?” Why would you hide that reality from someone in the messaging, and so forth.
Anyway, all these questions, but it strikes me that, I think, a lot of trust might be regained if there was this transparency, even though it’s true, it’s messy, because there are a lot of unknowns.
Mr. Patel: I think that’s a simple solution that unfortunately government doesn’t know how to grapple or deal with right now. I think there’s too much politics in the way to establish a website or database that allows Americans to just go and say, “Hey, here’s all the actual empirical information. Here’s the age groups that have had COVID, here’s the survivability, here’s the age groups that have had COVID and died, here’s the death rate, here’s the people in those groups that were vaccinated versus Unvaccinated.”
If you just put that information in one place, I agree with you, then the American public could start educating themselves on, at least, what is and isn’t a good option for their own personal health. And it just doesn’t exist. And unfortunately, I don’t think it’s going to exist because COVID has become a political lightning rod.
And it’s not going anywhere anytime soon because we get new variants, and then those variants come and go. And then the efficacy of the vaccine against the variants, and then states rights come into play. And that’s what we’re talking about here.
Mr. Jekielek: It would be expected that a respiratory virus that functions like this will become endemic, i.e. will just be circulating in the population, much like the flu is and so forth.
Just something that struck me, I’ll just say this for the record, that what I would like to see on every state database website is something where you have age stratification and comorbidities. Because those are the two things, again, from my limited perspective, that those are the two things which seem to have the biggest impact on risk. If you had a table like that, you could pretty quickly see where you fall in the risk categories.
Mr. Patel: That’s a great idea. Unfortunately, I don’t think they’re going to take you up on it.
Mr. Jekielek: I think I’ve seen something like that on a local site or something. Anyway, there it is.
Mr. Patel: We’ll see.
Mr. Jekielek: DOD, let’s let’s talk about that. So there are a lot of military service people who are very, very concerned about being mandated. They don’t want to be coerced, maybe they have questions like we’ve described. What’s the reality in DOD?
Mr. Patel: So having served both as a civilian operationally, and then as chief of staff leading the Department of Defense, I know lots of these individuals. I have lots of friends that are still in service, and I’ve talked to them privately about it.
They’re like, “I’m not taking the vaccine.” And this is going to come down to a situation where Joe Biden has issued a mandate for the military to either be vaccinated or what? They’re going to relieve you of command and kick you out of the military? That’s going to court if that happens.
But I think my prediction is Joe Biden’s going to blink. Because here’s the one thing that most of the military doesn’t do, they don’t care about the politics. But what they do want the ability to do is to choose what’s best health-wise for them and their family. These folks have family. So if they get a vaccine, how does it impact their family and things like that?
Look, I’ve talked to a lot of my buddies in the special forces community that I served with. And a lot of them don’t want to take and have not taken the vaccine.
So what’s Joe Biden going to do? Eliminate the tip of the spear of the United States military? These guys train for 20 years to get to the positions they’re in. What are we going to do when they’re excised from the military because Biden said you didn’t take the vaccine mandate? It’s unrealistic. You can’t replace those guys overnight.
And not just them, that’s just the operational arm of the United States military that does some of our most dangerous operations. What about the subject matter experts at the highest levels of the military, be it in the nuclear program, the submarine program, the satellite programs? A lot of these folks don’t want to be mandated to take the vaccine. I’ve talked to them. What’s he going to do, subject American national security to the interest of his executive order mandate?
I think you’re going to see the administration blink because the military will be in the right. And I think you’re going to see military members stand up and also seek a determination in federal court for their rights.
Because they have the same rights as everybody else does under a different set of rules sometimes because of the Military and Uniform Code of Justice. But they still have due process rights, they still have rights under HIPAA and everything else, regarding their health and what they can and can’t do.
So it’s interesting. I don’t see how President Biden makes the United States military get the COVID vaccine.
Mr. Jekielek: It just also makes me think of the Seattle Police Department. The union is basically saying there’s going to be a devastating loss of personnel, if these mandates go through. They’ve already had a devastating loss with the Autonomous Zone. I think that something north of 300 police officers actually quit after that, from what I understand, which is…
Mr. Patel: And then the question for the courts will be, what is more important in terms of DOD, the national security of the United States or this executive order about vaccine mandates? And transferring that to law enforcement, where also served at the Department of Justice, what’s more important, policing our neighborhoods and having police to do that ability, or making them take a vaccine?
It’s not as if you can replace these people overnight. If one or two leave, it’s still a problem because they still have rights that need to be adjudicated by the courts. But we’re talking about hundreds, if not thousands of people across the country. You can’t replace the military folks, you can’t replace law enforcement folks in that fashion. It’s just impossible.
So I think there’s a very good argument for them to stay in their jobs. And that’s what I think will happen. They’ll likely stay in their jobs, while these court challenges go to court and getting these things called injunctions and whatnot, where there’s a stay or pause of the mandate by the courts of the president’s mandate.
And basically, the courts will say, “We’re going to decide. While it’s being decided, while people are arguing both sides, lawyers and everything, we’re going to hold off on making you get a vaccine.”
Mr. Jekielek: And to your point, I think a judge just prevented United Airlines from basically doing that.
Mr. Patel: So United is one of the large companies. Boeing just issued a mandate, they’ve got 140,000 employees that they’re saying have to be vaccinated. Boeing’s one of the largest companies on planet earth. It’s the biggest company in the defense industrial complex that I’m very familiar with.
And United, also, huge employer, not just in America, but around the world, and they mandated the vaccine. And so a lot of those people… Those are private citizens, they’re not law enforcement, they’re not military. These are private citizens, and there’s a lot of them. And their company’s telling them, you can’t have a job basically, unless you get this vaccine.
And that I think is also a core challenge for a whole different set of reasons than the mandate. That doesn’t even necessarily… I guess the companies are saying, “Because of the mandate, we Boeing, we United are saying, our employees are mandated.” Maybe that’s how they convince themselves that that was okay to do.
I disagree with it. But I think those court cases for their employees are also, as you said, United’s already in court and the federal judge issued a stay saying, “Well, we’re not going to be able to decide this in the near term, because there’s too many arguments, too much information that has to be presented to the judge before he can make an actual decision.”
So he said, “Pause, there’s an injunction. Everybody at United can continue to work as if there was no mandate.” Until he makes his ruling. And then here’s what’s going to happen as soon as he makes his ruling. It doesn’t matter who wins or loses, it’s going to get appealed to the federal circuit court, and that’s going to get appealed to this US Supreme Court. So it’s going up there.
Mr. Jekielek: And so this is what strikes me. This is very interesting. Because, I mean, will this actually provide an opportunity for the public to actually see these arguments? Given the reality of the vaccines, which we discussed earlier, it’s of questionable value. Is this the opportunity for Americans to actually understand the reality of these arguments?
Mr. Patel: Well, I think so, if they want to. The greatness of America’s judicial system is its public, at the state level and at the federal level. So if the government, the Biden administration comes in and files a pleading, as we call it, or a memorandum of law, that memo is public, and anyone can go pull it and read it.
And same with these companies, and same with these individuals representing at DOD, and the lawyers on both sides can bring in their experts and say, “This is what our experts going to say.” And also the hearings themselves that will occur before a judge with witnesses, those are public. So the media will be in there reporting on it.
So it takes time. And it’s a lot of information that’s going to be pumped into different federal courthouses and state courthouses throughout the country, because lots of people are bringing these challenges.
So there’s not going to be one uniform place where you can go and say, “Hey, they just filed this case, this speaks for the whole country.” It doesn’t. But when it ultimately gets to the Supreme Court, then there’s only going to be two sides, the government and the defendant. And there’s going to be one set of pleadings that everybody can read, and there’s going to be one decision. That’s the point of the Supreme Court.
Mr. Jekielek: And then it’ll be reported on by the media-
Mr. Patel: Yeah, well, that’s the problem.
Mr. Jekielek: … in various ways.
Mr. Patel: We laugh about it, but it’s pretty tragic that the credibility of most in the media is so shot right now that they don’t have faith in the ability of a credible report coming from them out of a case that will eventually go to the Supreme court. So I think that’s also for the problematic.
Because most people don’t have the time. They don’t have two, three days to review pleadings, listen to witness testimony, listen to expert testimony, digest it all and figure it all out. They don’t. They’re working, they have families, they have things to do. So they rely on the media for it, and the media’s proven largely unreliable when it comes to big matters for the country. And this is basically a national security matter.
Mr. Jekielek: I referenced this recent article in The New York Times. Sometimes it seems like it takes a long time for information to get through, but sometimes it gets through.
For example, this issue of the COVID origins. In April 2020, when we did our documentary, just talking about the reality that it may well have originated from the Wuhan lab, given the various circumstantial evidence and the way the virus worked. It took another… I can’t remember how long, but something like a year, at least, before there was that broad admission in the media that this is at least a possibility.
Similarly, I think we’ve known for, well, again, at least to get a year, year and a half that this age stratification around COVID has existed. It’s been obviously incredibly significant. And so that’s made it into a prominent place in The New York Times.
Perhaps this is a signal that the broader population will get to learn about these things that we may be able to have like a public discourse around this, that isn’t extreme political polarization around some of the most important issues facing us, life and death issues, potentially.
Mr. Patel: They would be nice. I think the biggest impediment to that is going to be Congress, because they’ve made it so political. They’ve made it so polarizing, and forcing people to, be it this vaccine or another vaccine, mandating it just so you can continue to work and earn a living and provide for your family, only extrapolates that problem even more so.
And you would think, you would hope that there will be Democrats and Republicans that can get together on this issue and say, “Hey, why don’t we at least put out the empirical data that we have at our disposal as a federal government? Why don’t we create a website and let Americans read it?” And put out the ages, put out the people who’ve had it, like we talked about and all that. And as much information as you can data, put it out there, what’s wrong with that? They don’t want to do it.
Because they’ve politicized it so much that they’re literally, some, not all, some, are using it as basically a campaign issue for the midterm elections, which are coming up in a year. Which means they need to keep it a political decision and not a data based decision.
Mr. Jekielek: I guess, we’ll see what’ll happen.
Mr. Patel: Yeah. It’s going to be a minute. We’ll be talking about it for a while.
Mr. Jekielek: Well, Kash I think it’s time for our shout out.
Mr. Patel: Yeah. I think you’re right, Jan. And given this week’s discussion that you and I have had about the COVID vaccine mandate, and so many of the comments from our viewers, which we appreciate it about answering questions, one, we hope, we answered a lot of your questions.
But this week’s shout out really is for all those individuals who don’t want to be mandated to take a COVID vaccine. I think people should take a vaccine, but I respect your right not to be mandated to do so. And I think you guys are going to be right in the long run. So this week’s Kash’s Corner shout out is for y’all.
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