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Transcript

Blanche’s Confirmation Deal: Trump’s Weaponization Fund Could Return · The Oath and The Office

• 0:10
  Speaker 1: Welcome to another episode of The Oath and the Office
• 0:12
  Speaker 1: of the podcast. I'm John Pegel, saying it's so great
• 0:15
  Speaker 1: to have you with us because we've pretty much reached
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  Speaker 1: a point where the Constitution is basically America's most ignored
• 0:22
  Speaker 1: terms of service agreement, and when it comes to fitness
• 0:25
  Speaker 1: for running the Department of Justice, Todd Blanche has raised
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  Speaker 1: the bar on lowering the bar at a time when
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  Speaker 1: constitutional norm sounds more and more like an endangered species.
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  Speaker 1: Let me please welcome the star of our show. Constitutional
• 0:38
  Speaker 1: law professors have become America's trauma counselors and no one
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  Speaker 1: saves more. And Professor Corey Bretschneider, the author of The
• 0:44
  Speaker 1: Oath and the Office. Professor, welcome back. It's great to
• 0:47
  Speaker 1: see you.
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  Speaker 2: Thanks so much, John. I'm looking forward to this episode.
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  Speaker 2: Although I'm distressed by what's happening with the confirmation of
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  Speaker 2: Todd Blanche, which was voted today out of the Judiciary Committee,
• 0:59
  Speaker 2: I also think gets a chance to talk about how
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  Speaker 2: the system's supposed to work and what confirmation is supposed
• 1:04
  Speaker 2: to be, namely our main check against a monarch, and
• 1:07
  Speaker 2: so as much as we're failing in our current moment,
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  Speaker 2: we'll also talk about the hope of how the system's
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  Speaker 2: supposed to work and how to revive it and what
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  Speaker 2: to expect the representatives who defend it and those unfortunately
• 1:18
  Speaker 2: who don't.
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  Speaker 1: I was on MSNL the other night to talk about
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  Speaker 1: Senators Tillis and Cornon and their valiant Mister Smith goes
• 1:25
  Speaker 1: to Washington efforts to get Todd Blanche to agree in
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  Speaker 1: writing to get rid of the slush fund for the
• 1:32
  Speaker 1: January sixth terrorist. It was essentially they were saying, well, listen,
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  Speaker 1: all this corruption we're okay with, could you not do
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  Speaker 1: this one piece of corruption in writing? That's all we're asking.
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  Speaker 1: And Corey he said, I'd said under oath that it's dead.
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  Speaker 1: And they're like, sorry, we don't trust you swearing on
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  Speaker 1: a Bible on camera under oath, mister Blanche, can you please,
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  Speaker 1: we need to know it's dead, Corey. Ten years after
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  Speaker 1: Trump started all this, Republicans are demanding Trump produce a
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  Speaker 1: death certificate for something. The irony floors me. Blanche said,
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  Speaker 1: we won't do it. And so suddenly Professor all the
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  Speaker 1: Epstein cover up, given Dlane Maxwell a cushy club fed prison,
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  Speaker 1: all those pardons for all those January sixth terrorists, I
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  Speaker 1: mean everything, the subpoenas for the New York Times reporters.
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  Speaker 1: None of it matters anymore. They made this big drama
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  Speaker 1: about one little thing, and it successfully seems to have
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  Speaker 1: distracted everybody from talking about the gigantic pyramid of corruption
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  Speaker 1: this man represents.
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  Speaker 3: Absolutely, you know.
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  Speaker 2: And just to go back to the beginning, of course,
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  Speaker 2: you know, there are a number of questions in this nomination.
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  Speaker 3: The failure to.
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  Speaker 2: Release the Epstein files, which we've covered with Katie Fang,
• 2:39
  Speaker 2: who's suing actually to get this release, and then these
• 2:43
  Speaker 2: immediate issues about both the deal that Donald Trump essentially
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  Speaker 2: made with himself he claims with the IRS, and a
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  Speaker 2: settlement that resulted in a b with billions, you know,
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  Speaker 2: over in the billions of dollars, this settlement, which was
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  Speaker 2: really a slush fund to fund the allies of the
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  Speaker 2: President of the United States, including potentially to pay off
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  Speaker 2: the January sixth rioters. Now, a lot of the Republican
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  Speaker 2: Party has been fine with that, but these two senators,
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  Speaker 2: as you suggested, in the Republican Party.
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  Speaker 3: Seemed that at a moment anyway to.
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  Speaker 2: Have a conscience and to say, you know, I'm not
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  Speaker 2: going to vote for somebody that approved all of this.
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  Speaker 2: And yet you know the thing that they still are
• 3:26
  Speaker 2: saying that, But yet they're being naive. It looks like
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  Speaker 2: and thinking, well, as long as Donald Trump and or
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  Speaker 2: Todd blanche in particular puts into writing a promise that
• 3:36
  Speaker 2: I'm not going to do this, then we can trust it.
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  Speaker 2: Now when they're pushed, I've seen comments that suggest they realize, like, yes,
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  Speaker 2: maybe we can't hold him to these promises. But really,
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  Speaker 2: the assumption that there's any trust in an administration that
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  Speaker 2: is trying to do this in the first place, I
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  Speaker 2: think that, yes, it really is, but it does you know, John, Yes,
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  Speaker 2: we'll talk a lot about history. I want to say
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  Speaker 2: one last thing. There is this tradition of getting promises
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  Speaker 2: from nominees that were carried out, and so the most
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  Speaker 2: important I think is Elliott Richardson, the Attorney General, who
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  Speaker 2: is in the midst of the Watergate scandal, not just
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  Speaker 2: nominated but confirmed to the Senate, promises he's not going
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  Speaker 2: to stop the investigation, he's not going to fire Archibald Cox,
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  Speaker 2: the special prosecutor looking into Nixon's crimes, and he stays
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  Speaker 2: true to that promise. He basically says, fire me rather
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  Speaker 2: than see me do this because I'm not going to
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  Speaker 2: break and this is how we put it. I'm not
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  Speaker 2: going to break my word to the Senate. So there
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  Speaker 2: was a past moment where these promises met something. But
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  Speaker 2: yet look a moral age of.
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  Speaker 1: The golden moral age of Watergate, when Republicans were men
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  Speaker 1: of character. Yes, wow, we never knew how good we
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  Speaker 1: had it. I mean, Corey, I want to ask you
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  Speaker 1: about you know something that you just said, because it
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  Speaker 1: seems like with the Weaponization Fund, doesn't the fact that
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  Speaker 1: Blanche was willing to pitch it in the first place
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  Speaker 1: before we're sending it, doesn't that on its own render
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  Speaker 1: this man unfit for office?
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  Speaker 2: Exactly, John, That's such a great way to pull out
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  Speaker 2: the really absurdity of the situation, because you know, if
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  Speaker 2: you're saying, I'm going to basically destroy the Department of
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  Speaker 2: Justice and the Department of Justice.
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  Speaker 3: And this is partly also related to Watergate.
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  Speaker 2: There was an amazing Attorney General named ed Levy who
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  Speaker 2: was appointed by Ford, nominated, I should say, and confirm
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  Speaker 2: by the Senate. That's an important distinction. You don't just
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  Speaker 2: get put there.
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  Speaker 3: By the President.
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  Speaker 2: And what ed Levy did was he instituted a lot
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  Speaker 2: of these norms that we think are supposed to govern
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  Speaker 2: the department, like don't well even meet with the president,
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  Speaker 2: remember the famous tarmac meeting. Even interaction was supposed to
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  Speaker 2: be dangerous because of the worry that we'd return to
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  Speaker 2: a Nixonian moment where the president was essentially telling the
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  Speaker 2: Department of Justice to do his own bidding. So, you know,
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  Speaker 2: there is this history of norms, and what Todd blanche
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  Speaker 2: has done is just destroy all of them. Now, how
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  Speaker 2: has he destroyed them? He's basically acting as the president's
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  Speaker 2: personal lawyer. So to get to your point, which is,
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  Speaker 2: if you're doing that, if you're destroying the Department of Justice,
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  Speaker 2: you have no integrity. How are we going to trust
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  Speaker 2: that you say you're not going to continue the weaponization fund.
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  Speaker 1: That's why I felt very uncomfortable on MS NOW the
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  Speaker 1: other night discussing these two senators as performing any kind
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  Speaker 1: of meaningful oversight or even procedural oversite. It was all
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  Speaker 1: just theater. I mean, this man has gone from personal
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  Speaker 1: defense attorney to publicly funded defense attorney right right, and
• 6:36
  Speaker 1: again if you want proof of that, and again of
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  Speaker 1: the unfitness for office. The administration narrowed language regarding the
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  Speaker 1: tax audit protections they want to give Trump and his
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  Speaker 1: revolting sons, Fredo and shimp I mean, Corey. I don't
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  Speaker 1: know any private citizens, certainly not any convicted felons who
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  Speaker 1: are now immune from IRS audits for possible tax fraud
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  Speaker 1: in the future and in the past. I know of
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  Speaker 1: three people alive that this administration says should not have audits.
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  Speaker 1: You'd think our conservative brothers and sisters would find that
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  Speaker 1: a bit untoward and unfair, wouldn't you. I mean, constitutionally,
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  Speaker 1: are there broader equal protection concerns for when a government
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  Speaker 1: is clearly creating a different legal standard for a few
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  Speaker 1: private citizens.
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  Speaker 2: Well, it really is the destruction of not just equal protection,
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  Speaker 2: but the rule of law, the idea of democracy because Republicans.
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  Speaker 4: Voted for it. Every Republican voted for it.
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  Speaker 2: Sorry, the President of the United States, you know, has
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  Speaker 2: this immunity that the Supreme Court basically pulled out of
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  Speaker 2: thin error, and he's doubling down on that with this
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  Speaker 2: IRS deal, this fake deal again, a deal between himself
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  Speaker 2: and himself, and also trying to extend that to his family.
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  Speaker 2: And so absolutely, this is, you know, just a real attack.
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  Speaker 3: On the rule of law.
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  Speaker 2: I should say something too, you know about all this,
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  Speaker 2: which is I think a part of the story that
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  Speaker 2: I haven't seen talked about, but it was talked about
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  Speaker 2: on this podcast. As you know, a friend of the show,
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  Speaker 2: Sky Perryman, was our guest two weeks ago, the head
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  Speaker 2: of this amazing group, Democracy Forward, and what we spoke
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  Speaker 2: about was the way that she, you know, really was
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  Speaker 2: her organization and these amazing team of lawyers, many of
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  Speaker 2: whom are former DOJ officials themselves and are horrified about
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  Speaker 2: what's happening. And I've worked with some of them, as
• 8:29
  Speaker 2: you know, on the tariff's case. At any rate, they
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  Speaker 2: brought a case to both against the IRS deal that
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  Speaker 2: we're talking about, but also against the weaponization fund.
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  Speaker 3: And just to remind people, the.
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  Speaker 2: Way this worked was the IRS deal was not, in
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  Speaker 2: the end a payment to Trump directly, but was an
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  Speaker 2: agreement that the IRS had engaged in this weaponization and
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  Speaker 2: so he would be given this multi billion dollar fund
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  Speaker 2: he and the DOJ to fund his friends and the
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  Speaker 2: January six rioters and those who were supposedly the victims
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  Speaker 2: of shutdowns of political speech. Anyway, Perryman stopped it essentially
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  Speaker 2: in the courts for the time being. Now here's the point.
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  Speaker 2: Now he says it's dead, right Todd blanche Ye, if
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  Speaker 2: it really is dead? And she we brought this out
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  Speaker 2: in the podcast in a way. I'm not seeing any
• 9:20
  Speaker 2: media covering this. So I know a lot of journalists
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  Speaker 2: are listening to this show, and I hope that they're
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  Speaker 2: they're going to use this moment to report on this.
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  Speaker 2: That lawsuit hasn't been dropped. So how can all this
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  Speaker 2: bs about where there was a letter and we're not
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  Speaker 2: going to do the weaponization fund? And I promise, and
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  Speaker 2: I promise, you know he's got his fingers crossed behind
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  Speaker 2: his back, And how do I know that because he
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  Speaker 2: hasn't dropped the cads just give up? Why litigate in
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  Speaker 2: court on behalf of a weaponization fund that's dead. And
• 9:50
  Speaker 2: so that was a really powerful argument. And that's the
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  Speaker 2: real litmus test, not what he says, not what letter
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  Speaker 2: he promises, and.
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  Speaker 3: All this back and forth. The reason for their suspicion
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  Speaker 3: should be.
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  Speaker 2: At its height no matter what he says, because he
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  Speaker 2: hasn't dropped the case.
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  Speaker 4: What does it say that these senators would vote to
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  Speaker 4: advance this nomination for a man they acknowledged they don't
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  Speaker 4: believe when he's sworn under oath. I mean, they don't
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  Speaker 4: accept his word under oath on camera. That's not enough
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  Speaker 4: for him to believe it. And they vote for him anyway.
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  Speaker 1: And again, this is all just days after the DOJ
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  Speaker 1: subpoena is targeting the New York Times reporters.
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  Speaker 4: Can I ask you about this?
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  Speaker 1: I know that on a constitutional level there has to
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  Speaker 1: be a line between legitimate leak investigations and protecting a
• 10:36
  Speaker 1: free press. But the DOJ withdrew these subpoenas after a
• 10:40
  Speaker 1: federal judge said, no, you didn't follow procedure, So unlike
• 10:45
  Speaker 1: these Republican senators and the Congress, at least one judge
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  Speaker 1: is practicing some judicial oversight out there. But how insane
• 10:52
  Speaker 1: and illegal was this? They're subpoena New York Times reporters
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  Speaker 1: and he still shows up at the correspondence dinner.
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  Speaker 2: Well, you know, if we're going to make a list
• 11:01
  Speaker 2: of what's wrong with the blanche nomination and the reason
• 11:04
  Speaker 2: why every Republican senator, every Democratic senator should be voting, no,
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  Speaker 2: that's not what's happening.
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  Speaker 3: This is high on the list.
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  Speaker 2: We talked about the DOJ slush fund, the creation of
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  Speaker 2: the slush fund, the fake IRS case that came from it,
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  Speaker 2: with a federal judges called a fraud on the court.
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  Speaker 2: And now we're onto this other topic, which is that,
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  Speaker 2: under Blanche's direction of the Department of Justice, another nominee,
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  Speaker 2: who we're going to talk about, Jay Clayton, who is
• 11:30
  Speaker 2: now the Director of National Intelligence, a totally frightening thought.
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  Speaker 3: Subpoena these journalists.
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  Speaker 2: Now they trying to back out of this, claiming, oh,
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  Speaker 2: they were never really subpoenaed because they were targets of
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  Speaker 2: the investigation.
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  Speaker 3: They weren't criminal targets.
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  Speaker 2: There's a distinction in prosecution between the target of the
• 11:48
  Speaker 2: investigation and somebody who's essentially a witness, and somehow they
• 11:52
  Speaker 2: were just well, what was the crime. We haven't even
• 11:54
  Speaker 2: heard that. And what was obviously happening here was, although
• 11:57
  Speaker 2: they knew they weren't going to get a conviction, harassment
• 12:00
  Speaker 2: to create that chilling effect that we're often talking about,
• 12:03
  Speaker 2: not to prosecute anybody in the way John Adams did
• 12:06
  Speaker 2: and get a conviction and put people in prison, but
• 12:08
  Speaker 2: to make them think twice before they do. Another story
• 12:11
  Speaker 2: about a bribe plane. That's what the story was about.
• 12:14
  Speaker 2: The cutter gave Donald Trump this bribe plane, and the
• 12:17
  Speaker 2: New York Times was investigating on why it needed to
• 12:20
  Speaker 2: be retrofitted because it wasn't prepared to have the defenses
• 12:24
  Speaker 2: to cover to carry a president of the United States.
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  Speaker 3: So, you know, here we are again.
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  Speaker 2: The main point is there's this story after story, and
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  Speaker 2: that's all under his leadership. If he found out, you know,
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  Speaker 2: maybe wanted to blame it on Jay Clayton, that he
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  Speaker 2: was the one to do it, he could have stopped it,
• 12:40
  Speaker 2: or he could have called it out, and he didn't
• 12:41
  Speaker 2: do anything of the sort. To talk about how far
• 12:44
  Speaker 2: we are from Watergate, think of how far that is
• 12:46
  Speaker 2: from a devoted Republican. Elliott Richardson was a devoted Republican
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  Speaker 2: who had served multiple cabinet positions, nominated to be Attorney General,
• 12:56
  Speaker 2: he was a party stalwart.
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  Speaker 3: And yet you know heid by.
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  Speaker 2: His word, which is I'm not going to stop the
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  Speaker 2: investigation of Richard Nixon. Look how far we are we
• 13:05
  Speaker 2: have somebody who's just presided over destruction of the Department
• 13:08
  Speaker 2: of Justice and presided essentially over an attack on democracy,
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  Speaker 2: and then we're supposed to trust them.
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  Speaker 3: I don't think so.
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  Speaker 2: Republican senators who have turned their backs on democracy.
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  Speaker 1: Okay, as bad as you make it sound, I want
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  Speaker 1: to remind people it's worse because the DOJ wasn't just
• 13:25
  Speaker 1: seeking reporters phone records, but they wanted records involving their
• 13:29
  Speaker 1: family members. Right, try to imagine what would have happened
• 13:33
  Speaker 1: if Barack Obama wanted the phone records of Sean Hannity's
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  Speaker 1: trophy wife. I mean, like, try to imagine if a
• 13:40
  Speaker 1: democratic president had tried to get the call records of
• 13:43
  Speaker 1: a right wing journalist family members. I mean, doesn't this
• 13:47
  Speaker 1: raise constitutional and civil liberties concerns?
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  Speaker 2: You know it does, and you know, sometimes you have
• 13:53
  Speaker 2: to go I'm always talking about hope on this show,
• 13:55
  Speaker 2: and one thing that I really do think is hopeful
• 13:58
  Speaker 2: is that we forget some times where the norms, where
• 14:02
  Speaker 2: the rules of the Department of Justice came from. And
• 14:05
  Speaker 2: Nixon was so terrible, not just in the crimes of Watergate,
• 14:08
  Speaker 2: but in his attack on political opponents, his abuse of
• 14:11
  Speaker 2: the irs, his attempt to manipulate actually antitrust suits, including
• 14:16
  Speaker 2: one involving a company called Itt, and over and over
• 14:20
  Speaker 2: these abuses were coming to light. And when Ford took
• 14:25
  Speaker 2: after Nixon resigned, Ford takes his place. This new Attorney General,
• 14:30
  Speaker 2: ed Levy again had been the president of University of Chicago.
• 14:33
  Speaker 2: He picked somebody who wasn't his friend, who was at
• 14:35
  Speaker 2: the height of the legal profession. And you know the
• 14:40
  Speaker 2: institution of these norms, which say you're not even supposed
• 14:43
  Speaker 2: to talk to the president, much less allow the president
• 14:46
  Speaker 2: to commandeer the department, and the department is supposed to
• 14:50
  Speaker 2: defend the people, not the personal interests of the United States.
• 14:54
  Speaker 2: Those were in place so much so that if any
• 14:56
  Speaker 2: president violated them, even in the slightest and I do
• 15:00
  Speaker 2: think this was true of Democratic and Republican presidents, that
• 15:04
  Speaker 2: what would happen is the press would go crazy. It
• 15:07
  Speaker 2: would be a scandal, even a discussion, And that's what
• 15:11
  Speaker 2: we were Now.
• 15:12
  Speaker 3: Todd Blanche really has destroyed that. I mean completely.
• 15:16
  Speaker 2: It's been on the run in the first Trump administration.
• 15:19
  Speaker 2: Certainly we saw a tax on it with Bill Barr
• 15:21
  Speaker 2: and others, and we could talk about that, but this
• 15:23
  Speaker 2: is somebody who really is acting. You said this, I
• 15:26
  Speaker 2: don't want people to miss it, not just as the
• 15:28
  Speaker 2: president's lawyer, but as his criminal defense lawyer, and he had,
• 15:31
  Speaker 2: of course been Donald Trump's criminal defense lawyer in the
• 15:34
  Speaker 2: Stormy Daniels case in Manhattan. That's how he's acting. It
• 15:37
  Speaker 2: has blown apart these norms. One last thing on this point,
• 15:40
  Speaker 2: The norms themselves turn out to not be a good
• 15:44
  Speaker 2: way of guaranteeing democracy because if you just get somebody
• 15:48
  Speaker 2: wants to violate them, norms are not really a legal
• 15:52
  Speaker 2: check on this event. Right, That's why we're seeing what
• 15:54
  Speaker 2: we're seeing.
• 15:55
  Speaker 1: I mean, right now, somewhere in hell, Nixon is looking
• 15:57
  Speaker 1: up at these guys saying too much.
• 15:59
  Speaker 4: Guys, too much, pull it back, pull it back.
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  Speaker 1: But in the midst of all of this, you know,
• 16:04
  Speaker 1: Senate Democrats are asking whether the White House played any
• 16:08
  Speaker 1: role in directing these subpoenas Corey. And now we're getting
• 16:12
  Speaker 1: into real Nixon territory, because how problematic would it be.
• 16:15
  Speaker 1: I know this sounds really impossible, but go with me
• 16:18
  Speaker 1: on this hypothetical. But what if Donald Trump personally influenced
• 16:23
  Speaker 1: criminal investigation decisions regarding I know it's hard to believe,
• 16:27
  Speaker 1: but what if Donald Trump ordered the code read Corey,
• 16:30
  Speaker 1: I mean, right.
• 16:32
  Speaker 2: You know, so much of the problem here is getting
• 16:36
  Speaker 2: the information, and we have journalists. We had Jody Kanter,
• 16:39
  Speaker 2: one of the best, I think probably the best journalists
• 16:41
  Speaker 2: out there covering the courts, who's gotten us secret memos
• 16:44
  Speaker 2: from John Roberts showing us what's.
• 16:46
  Speaker 3: Really going on behind the scenes.
• 16:48
  Speaker 2: And there are other great reporters doing work about Donald
• 16:51
  Speaker 2: Trump and his secret orders. Yeah, but the problem is
• 16:54
  Speaker 2: how do you get that information? And so much of
• 16:56
  Speaker 2: what happens between the President and the Department of Justice
• 17:00
  Speaker 2: is concealed, and so the more we learn, I have
• 17:03
  Speaker 2: no doubt that as bad as what we're seeing is
• 17:06
  Speaker 2: that it's not a coincidence that his political enemies James
• 17:09
  Speaker 2: Gomi gets target. No, he tells us that, I mean,
• 17:12
  Speaker 2: listen to him in his public statements, and so of
• 17:14
  Speaker 2: course it could be that these subpoenas for the brideplane
• 17:18
  Speaker 2: were at his direction, because you know, that's just how
• 17:21
  Speaker 2: he operates.
• 17:22
  Speaker 3: Again and again, one thing on this.
• 17:25
  Speaker 2: Is, you know, we do need there's so many pieces
• 17:27
  Speaker 2: of legislation we need to recover from this mass and
• 17:30
  Speaker 2: the hope is that as we see how bad it is,
• 17:32
  Speaker 2: we see the laws that we need to recover. And
• 17:35
  Speaker 2: we talked with Senator Wyden who's been at the forefront
• 17:38
  Speaker 2: of a lot of these battles about the need for
• 17:40
  Speaker 2: legislation that would allow people to get access to this information.
• 17:45
  Speaker 3: The jaw Boning Act is one example.
• 17:47
  Speaker 2: Katie Fang is using the Epstein Files Act in a
• 17:50
  Speaker 2: totally innovative way to get access for journalists. So that's
• 17:54
  Speaker 2: the kind of thing that we need more and more
• 17:56
  Speaker 2: and more laws that are going to.
• 17:57
  Speaker 4: Do this absolutely.
• 17:59
  Speaker 1: And you know, again, Donald Trump really is not going
• 18:02
  Speaker 1: to be able to persecute James Comey as fully as
• 18:05
  Speaker 1: he'd like unless he has really creative ways to cheat
• 18:08
  Speaker 1: in the upcoming midterms. And we've talked extensively about how
• 18:11
  Speaker 1: they've been trying to since early twenty twenty five with
• 18:14
  Speaker 1: Jerry benderin in Texas in a very off year from
• 18:17
  Speaker 1: a census. So they're now asking the Supreme Court to
• 18:22
  Speaker 1: revive portions of their old executive order that affect mail voting.
• 18:27
  Speaker 1: Once again, Donald Trump, a guy who votes by mail,
• 18:29
  Speaker 1: is trying to make it harder for people to vote
• 18:31
  Speaker 1: by mail, because, as we've said, it's going to be
• 18:34
  Speaker 1: deaf by a thousand cuts. They're going to try to
• 18:35
  Speaker 1: make a little bit harder with a voter ID law
• 18:38
  Speaker 1: a little bit harder with getting rid of drop boxes
• 18:40
  Speaker 1: over here, maybe the Save Act and you ladies change
• 18:42
  Speaker 1: your name a little bit harder. I mean, what constitutional
• 18:44
  Speaker 1: questions are at the center of this case, trying to
• 18:47
  Speaker 1: take a means of exercising a right away from citizens.
• 18:52
  Speaker 2: Well, you know, let's start from the beginning that what
• 18:54
  Speaker 2: the Post Office is being tolled by Donald Trump is
• 18:57
  Speaker 2: that there is massive voter fraud. And to say the
• 19:01
  Speaker 2: obvious listeners are not going to be surprised by this
• 19:03
  Speaker 2: in the least, there is no such voter fraud. This
• 19:06
  Speaker 2: is the same kind of thing he's been saying since
• 19:08
  Speaker 2: the twenty twenty election, when he claimed again and again
• 19:11
  Speaker 2: that there was voter fraud and there wasn't And now
• 19:13
  Speaker 2: he's doing it again.
• 19:14
  Speaker 3: Now.
• 19:14
  Speaker 2: The problem is that he's saying it this time not
• 19:17
  Speaker 2: to courts, who are an independent branch of government that
• 19:21
  Speaker 2: are going to push back, but to the Post Office,
• 19:24
  Speaker 2: which is dependent in many ways. It is part of
• 19:27
  Speaker 2: the executive branch. And with the theory of the unitary executive,
• 19:30
  Speaker 2: this Supreme Court has strengthened the position of the president
• 19:34
  Speaker 2: over any civil servant in the executive branch. Even though
• 19:38
  Speaker 2: there are laws that govern the executive branch.
• 19:40
  Speaker 3: That's how it's worked.
• 19:41
  Speaker 2: So the Department of Justice and the Solicitor General. I
• 19:45
  Speaker 2: just went and looked at this argument to see how
• 19:47
  Speaker 2: blatant it is. Is essentially saying, what are you talking
• 19:50
  Speaker 2: about that the president can't stop fraud. That's not up
• 19:54
  Speaker 2: to you the courts to decide. That's between the president
• 19:58
  Speaker 2: and his employees. Through the theory of the unitary executive,
• 20:02
  Speaker 2: the Post Office are his employees. Now, a federal court
• 20:06
  Speaker 2: has pushed back the Court of Appeals.
• 20:08
  Speaker 3: It's gone to and what.
• 20:09
  Speaker 2: That court has said is, no, the president can't say
• 20:12
  Speaker 2: that you have to do things that are illegal. You
• 20:14
  Speaker 2: can't do things that are going to undermine the state
• 20:17
  Speaker 2: constitutional ability of the states in the document to regulate elections.
• 20:22
  Speaker 2: And you can't go back on prior agreements that keep
• 20:25
  Speaker 2: from the politicization of the Post Office. So you have
• 20:28
  Speaker 2: these two battles happening now. So far, the winning argument,
• 20:32
  Speaker 2: thankfully is the rule of law that says, yeah, it
• 20:35
  Speaker 2: doesn't matter what branch are and you can't break the
• 20:37
  Speaker 2: law period. You can't undermine the power of the states
• 20:40
  Speaker 2: just because you're in the Post Office. And that's part
• 20:42
  Speaker 2: of the executive branch. But what's the Supreme Court going
• 20:45
  Speaker 2: to say eventually? I'm not sure because they are the
• 20:49
  Speaker 2: ones that have built up this theory of the unitary executive. Yeah,
• 20:54
  Speaker 2: even in the Court of Appeals there was you know,
• 20:56
  Speaker 2: the three judges agreed basically to put a stop to this,
• 21:00
  Speaker 2: but there was a trumpet point to judge who had
• 21:03
  Speaker 2: a lot of wiggle room in there when it comes
• 21:06
  Speaker 2: to the ability of the president of the United States
• 21:08
  Speaker 2: to control the Post Office.
• 21:10
  Speaker 3: And so this is scary stuff. John definitely, Well.
• 21:12
  Speaker 1: I mean, and again, these like Trump, the Supreme Court,
• 21:15
  Speaker 1: their executive power is something they treat like I treat
• 21:18
  Speaker 1: my airplane carry on bags. I'm trying to see how
• 21:20
  Speaker 1: much more stuff I can keep on stuffing into it
• 21:22
  Speaker 1: every time and cram more and more into it. I mean,
• 21:25
  Speaker 1: I don't know. I went to public school, professor, but
• 21:27
  Speaker 1: I always thought elections were administered by the states. Seems
• 21:31
  Speaker 1: like this is a states rights issue, except that's only
• 21:33
  Speaker 1: deployed when people are trying to justify racism. Where in
• 21:37
  Speaker 1: this instance does presidential authority end and state authority begin?
• 21:42
  Speaker 1: Because it seems like this Supreme Court is going to
• 21:44
  Speaker 1: have to do some really creative dancing to make this fly.
• 21:48
  Speaker 2: I mean, I love this airplane analogy that you know,
• 21:51
  Speaker 2: you're exactly right that what the theory of the unitary
• 21:55
  Speaker 2: executive is becoming is a theory of everything. So what's
• 21:58
  Speaker 2: in the executive branch? What are the powers everything?
• 22:01
  Speaker 3: More and more? What about the power to destroy.
• 22:05
  Speaker 2: The laws that are supposed to govern the civil service?
• 22:08
  Speaker 2: Put that in the unitary executive and destroy it, get rid.
• 22:11
  Speaker 3: Of all of those laws.
• 22:13
  Speaker 2: Put the power of the states is supposed to be
• 22:15
  Speaker 2: independent of the federal government and certainly of the presidency,
• 22:19
  Speaker 2: in the executive branch. Well, let's put that in the
• 22:22
  Speaker 2: theory of executive power. And so it's trying to swallow
• 22:25
  Speaker 2: up everything. And notice how they do it. You know,
• 22:27
  Speaker 2: lawyers are so crafty. And these lawyers, the lawyers of
• 22:32
  Speaker 2: the unitary executive, which go back and you know, part
• 22:35
  Speaker 2: of what I'm talking about in my book is the
• 22:37
  Speaker 2: lawyers of the nineteen eighties, people like Elito and people
• 22:41
  Speaker 2: like Roberts, who were crafting this theory of the unitary executive.
• 22:45
  Speaker 2: It's the same people people that's who's doing it.
• 22:48
  Speaker 3: And they are expanding and expanding it.
• 22:50
  Speaker 2: And that's what's really scaring me about this case because
• 22:52
  Speaker 2: when I read what the Solicitor General is saying in
• 22:55
  Speaker 2: the brief, it essentially is no, this has nothing to
• 22:57
  Speaker 2: do with courts. It's all between the president and his
• 23:01
  Speaker 2: employee who he has command total loyalty from and has
• 23:04
  Speaker 2: to do what he says. And you know, that's how
• 23:07
  Speaker 2: they're trying to skirt the law. That's what it comes
• 23:09
  Speaker 2: down to. So far, not successful, but we'll see what
• 23:11
  Speaker 2: the Supreme Court says.
• 23:13
  Speaker 1: Could a president with an obedient Supreme Court effectively like
• 23:17
  Speaker 1: nationalize a whole election just through executive orders or would
• 23:20
  Speaker 1: he still have to get congressional authorization.
• 23:23
  Speaker 2: I got to say, John, you know the answer should
• 23:25
  Speaker 2: be absolutely should be that you need congressional authorization or
• 23:30
  Speaker 2: even you know that this again, the states have this
• 23:33
  Speaker 2: role in regulating elections too, that there are all these checks,
• 23:37
  Speaker 2: a check from Congress and a check from the states.
• 23:40
  Speaker 2: You know, now, when you start to look at the facts,
• 23:42
  Speaker 2: the way legal cases work, and this is something that's
• 23:45
  Speaker 2: so frustrating is we can state a general principle, but
• 23:48
  Speaker 2: lawyers crafty lawyers, and let's not make any mistake that
• 23:52
  Speaker 2: lawyers who have created and are extending the unitary executive
• 23:55
  Speaker 2: theory are very good at this, and they take this
• 23:58
  Speaker 2: idea that the Post Office this is part of the
• 24:00
  Speaker 2: executive branch, and they start saying, there's nothing going on
• 24:03
  Speaker 2: here that's about violation of laws or even involved courts.
• 24:07
  Speaker 2: It's just a president essentially saying, hey, we don't want
• 24:10
  Speaker 2: to deliver fraudulent ballots, and so you know, look at
• 24:13
  Speaker 2: the roles and if you have people on the rolls
• 24:16
  Speaker 2: that are not supposed to be voting, you're supposed to
• 24:18
  Speaker 2: stop that.
• 24:19
  Speaker 3: Now.
• 24:19
  Speaker 2: Isn't that within the president's obligation to supposedly, as Article
• 24:24
  Speaker 2: two of the Constitution says, take care that the laws
• 24:27
  Speaker 2: be faithfully executed. I'm making the point of the unitary
• 24:30
  Speaker 2: executive theory. How frightening that might work.
• 24:33
  Speaker 1: Well, I mean, the White House says that they're just
• 24:35
  Speaker 1: they're just managing their own internal federal directives like they're
• 24:38
  Speaker 1: supposed to. But the state's just saying, no, you guys
• 24:41
  Speaker 1: are already changing how we conduct our elections because of
• 24:44
  Speaker 1: your order. So if the Supreme Court Professor allows parts
• 24:47
  Speaker 1: of this to proceed before the midterms, what kind of
• 24:53
  Speaker 1: precedents are we talking about here?
• 24:55
  Speaker 2: Well, the unitary executive theory started as a kind of
• 24:57
  Speaker 2: wacky idea. I should say what it's basis is, and
• 25:00
  Speaker 2: when I tell you, it's going to be upsetting, because
• 25:02
  Speaker 2: supposedly this is an idea based on the text of
• 25:04
  Speaker 2: the Constitution, and it's really only based on a phrase,
• 25:08
  Speaker 2: which is that the executive power is vested in a president.
• 25:12
  Speaker 2: And what they've done is use that to just expand
• 25:16
  Speaker 2: and expand what the president can do. And the president's
• 25:19
  Speaker 2: total control, not just control, but total control over his
• 25:22
  Speaker 2: own employees. That's how they'd put it. Now, what's the
• 25:25
  Speaker 2: response to that. The response to that should be, well,
• 25:28
  Speaker 2: the legislative power is vested in a Congress, and it's
• 25:31
  Speaker 2: made laws, and the Constitution has created structures that give
• 25:36
  Speaker 2: the states and Congress the power to limit what government
• 25:40
  Speaker 2: can do.
• 25:41
  Speaker 3: But what this very.
• 25:43
  Speaker 2: Specific example I'm glad that we've gone so deep shows
• 25:46
  Speaker 2: us is how the whole idea, that the right idea
• 25:49
  Speaker 2: of the Constitution, which we all learned about in grade school,
• 25:52
  Speaker 2: of three coequal branches, how that is under assault by
• 25:56
  Speaker 2: this president successfully who doesn't understand in the three branches
• 26:00
  Speaker 2: of government I'm sure couldn't name them and tried it.
• 26:04
  Speaker 1: In the first term, he thought the three branches were
• 26:06
  Speaker 1: the White House, the Senate, and the House. After he
• 26:09
  Speaker 1: was elected the first time, he thought those were the
• 26:12
  Speaker 1: three branches of American government. And no one ever thought
• 26:14
  Speaker 1: this was remarkable except me.
• 26:16
  Speaker 2: I mean, he's turning it into one branch, and that's
• 26:19
  Speaker 2: the presidency. That's why this podcast, i should say, is
• 26:21
  Speaker 2: called the Oath in the Office, to try to emphasize
• 26:24
  Speaker 2: the idea that that office is created by law and
• 26:27
  Speaker 2: is beholden to law. And that's what's being destroyed by
• 26:31
  Speaker 2: this unitary executive theory. And here's the worst part, just
• 26:33
  Speaker 2: to sum up, the Supreme Court has.
• 26:36
  Speaker 3: Again and again enabled.
• 26:38
  Speaker 2: The destruction of the other branches, the building up of one,
• 26:41
  Speaker 2: the presidency. And we might see it here again, Corey.
• 26:45
  Speaker 1: These guys treat the Constitution like a hotel room Bible.
• 26:50
  Speaker 1: They know it's there, they're never going to open it.
• 26:53
  Speaker 1: All right, we got to take a quick break. But
• 26:54
  Speaker 1: when we come back, much more on the Oath in
• 26:57
  Speaker 1: the Office, including the never ending war against.
• 27:00
  Speaker 4: A free press by these people. Be right back.
• 27:07
  Speaker 5: The new John Fiegel Sang Show every day at dwelve noon.
• 27:11
  Speaker 6: Good afternoon, John, and welcome back to afternoon Radio.
• 27:14
  Speaker 4: I have missed you. Now you're back into the daylight.
• 27:17
  Speaker 3: Good afternoon, John congraduates on the new show, loving congratulations
• 27:21
  Speaker 3: on the changes happening with the show.
• 27:23
  Speaker 4: Excited for you, Excited.
• 27:24
  Speaker 3: For me personally, like, oh my god, I can call
• 27:27
  Speaker 3: it again.
• 27:27
  Speaker 5: The new John Feugel Sang Show every day at dwelve
• 27:31
  Speaker 5: noon on Serious XM Progress Channel one twenty seven or
• 27:34
  Speaker 5: on the Serious XMN.
• 27:41
  Speaker 4: Welcome back to the Oath in the Office.
• 27:42
  Speaker 1: I'm John Fugel Sang alone with Professor Corey Bretschneider. I mean, Corey,
• 27:46
  Speaker 1: you've written so much about constitutional guardrails. Which institutions do
• 27:50
  Speaker 1: you think are under the greatest strain right now? Is
• 27:54
  Speaker 1: is it Congress? Is it the courts? Is it federal agencies?
• 27:59
  Speaker 1: Or is it the free than us?
• 28:01
  Speaker 3: Well us, you know, it's all of the above.
• 28:03
  Speaker 2: But I'm going to just continue our discussion from the
• 28:05
  Speaker 2: first segment and talk about the federal agencies because what
• 28:10
  Speaker 2: these agencies are supposed to be doing is carrying out
• 28:12
  Speaker 2: the law, and we have laws passed by Congress.
• 28:15
  Speaker 3: For instance.
• 28:15
  Speaker 2: You know, if you're working for the Post Office, you're
• 28:17
  Speaker 2: not supposed to be engaged in the subversion of democracy.
• 28:21
  Speaker 2: And what's happened is that that whole idea that these
• 28:24
  Speaker 2: agencies are bound by the law, that they also civil
• 28:27
  Speaker 2: servants also take an oath of office to preserve, protect,
• 28:30
  Speaker 2: and defend the constitution. And yet it's being undermined by
• 28:34
  Speaker 2: this demand for loyalty at all costs by the President
• 28:37
  Speaker 2: of the United States, and he's demanding that from postal officials.
• 28:41
  Speaker 2: We're seeing that in the FCC, I which I know
• 28:43
  Speaker 2: we're going to talk about, and you know, that's how
• 28:46
  Speaker 2: this process of swallowing up the other branches, the administrative agencies,
• 28:51
  Speaker 2: civil servants, jobs, the law, into the executive branch is happening.
• 28:56
  Speaker 1: Well, let's talk about ABC. I mean, the FCC has
• 28:58
  Speaker 1: been at war with the free media. You know, hey,
• 29:00
  Speaker 1: they got Colbert fired and they've tried to get Kimmel fired.
• 29:04
  Speaker 4: Lord knows.
• 29:05
  Speaker 1: We don't give enough credit to Monday Night Football for
• 29:08
  Speaker 1: making Sinclair back down on that last year. But ABC
• 29:11
  Speaker 1: is arguing, Professor, that the FCC's review of their broadcast
• 29:15
  Speaker 1: license is just retaliation for their editorial decisions. I mean,
• 29:20
  Speaker 1: like freedom of speech subject to management approval, right, I mean,
• 29:24
  Speaker 1: how seriously is that allegation on a constitutional level, because
• 29:27
  Speaker 1: it certainly seems to be exactly what the hell is happening.
• 29:30
  Speaker 2: Well, all these stories intersacked, and the story here is
• 29:33
  Speaker 2: the story of the way that although the administration is
• 29:37
  Speaker 2: claiming that CBS and other networks have voluntarily started to,
• 29:42
  Speaker 2: you know, show more sympathy to the president voltarily, the
• 29:46
  Speaker 2: real story is that they've done so under threat of
• 29:48
  Speaker 2: having their licenses revoked. And some of these networks, CBS
• 29:53
  Speaker 2: is you know, the worst defender, have just backed down.
• 29:56
  Speaker 2: And what ABC is saying, thankfully, is I don't think so.
• 30:00
  Speaker 2: You can't use the threat of retaliation to get us
• 30:03
  Speaker 2: to supposedly volunteer to self censor.
• 30:06
  Speaker 3: And this is called job boning.
• 30:07
  Speaker 2: That's essentially what they're accusing the administration of and job boning.
• 30:11
  Speaker 2: To go back to the episode with Senator Wide, and
• 30:13
  Speaker 2: I hope listeners will go back and listen to that.
• 30:15
  Speaker 2: It's really important legislation and important idea. The idea of
• 30:19
  Speaker 2: job owning is that when government secretly forces you to
• 30:24
  Speaker 2: do something, it's not any less of a First Amendment
• 30:27
  Speaker 2: right than if it does it in the open.
• 30:29
  Speaker 3: So there's a case, for instance, about a.
• 30:31
  Speaker 2: Bookstore and Basically, the cops keep coming back and they're like,
• 30:34
  Speaker 2: ban these books, you know, but they don't do it
• 30:37
  Speaker 2: in the open.
• 30:38
  Speaker 3: They do it in sort of secret threats.
• 30:40
  Speaker 2: And the court says, you know, you can't can't go
• 30:42
  Speaker 2: into a bookstore and tell them how to manage their
• 30:45
  Speaker 2: internal dynamic and claim that it's voluntary.
• 30:48
  Speaker 3: And you know, that's what's going on here.
• 30:50
  Speaker 2: And so one of the things that I talked about
• 30:53
  Speaker 2: with Senator Widen, which I'm increasingly interested in, is job
• 30:57
  Speaker 2: bonning is hidden almost by definition. They're doing it in secret,
• 31:00
  Speaker 2: and so we need legislation to start opening things up.
• 31:03
  Speaker 2: And you know what, ABC, in making this complaint to
• 31:07
  Speaker 2: the FCC and hopefully litigation full litigation will come after,
• 31:11
  Speaker 2: is starting to give us an understanding of what's going on.
• 31:14
  Speaker 3: They have the goods, they have the documents.
• 31:16
  Speaker 2: They should be able to get more documents from Brandon Carr.
• 31:19
  Speaker 2: But this is not only you know, bad, it is
• 31:22
  Speaker 2: illegal activity.
• 31:24
  Speaker 4: But this is how close and USTRA works.
• 31:26
  Speaker 1: Nice constitutional norms be a shame as something happened to it, right,
• 31:29
  Speaker 1: I mean, throughout our history have constitutional checks. I mean
• 31:34
  Speaker 1: they've really depended a lot more on written law than
• 31:37
  Speaker 1: on political norms right.
• 31:39
  Speaker 2: Well, often, you know, that's a great way to put it,
• 31:41
  Speaker 2: because how do you prove the violation of a right
• 31:44
  Speaker 2: when it's being done in secret? And that's so much
• 31:46
  Speaker 2: of this administration that we've talked about. How do you
• 31:49
  Speaker 2: prove that Trump is ordering the Department of Justice and
• 31:52
  Speaker 2: not just Todd Blanche but also Jay Clayton, the head
• 31:55
  Speaker 2: of the Southern District of New York, to subpoena these journalists.
• 31:58
  Speaker 3: It's happening in secret.
• 31:59
  Speaker 2: Now eventually, you know, a lot of what I'm doing
• 32:01
  Speaker 2: these days is looking in the Nixon and four documents
• 32:04
  Speaker 2: and it comes to light, you know, decades later. But
• 32:07
  Speaker 2: what legislation would do that allows us to peer into
• 32:10
  Speaker 2: the dynamics of job owning would do is bring it
• 32:13
  Speaker 2: to light sooner.
• 32:14
  Speaker 3: And you know another thing that will bring it to
• 32:16
  Speaker 3: light is this.
• 32:17
  Speaker 2: Hopefully this case and thankfully, you know, this has been
• 32:20
  Speaker 2: the last since Donald Trump was elected, these these months
• 32:23
  Speaker 2: have been a story and often in failure of courage
• 32:27
  Speaker 2: because people just give in. That's CBS, that's the universities
• 32:31
  Speaker 2: like Vanderbilt that seem to be caming into this administration.
• 32:34
  Speaker 2: That's the law firms like Sullivan and Cromwell that are
• 32:37
  Speaker 2: going along with it. And in the networks again, CBS
• 32:40
  Speaker 2: is almost like the poster child for non courage and
• 32:44
  Speaker 2: ABC here is adding themselves to the law firms, universities,
• 32:48
  Speaker 2: those who are fighting back.
• 32:49
  Speaker 4: And I'm glad, Tolly God Corey.
• 32:51
  Speaker 1: Do you understand this administration is so evil They've got
• 32:54
  Speaker 1: us praising the Catholic bishops and Disney. That's how evil
• 33:00
  Speaker 1: they are. We're embracing those institutions. Now, Look, this whole
• 33:03
  Speaker 1: thing is nuts because it's like, I know enough to
• 33:05
  Speaker 1: know that broadcast licenses aren't supposed to come with like
• 33:09
  Speaker 1: editorial performance reviews, right, I mean, it's the FCC. They're
• 33:12
  Speaker 1: not yelp, but they want this is all about content.
• 33:16
  Speaker 1: And I know they have broad authority over broadcast licenses,
• 33:19
  Speaker 1: but we've seen former FCC officials of both parties say
• 33:23
  Speaker 1: that this is unprecedented. I mean, is there a dividing
• 33:26
  Speaker 1: line where the regulation ends and the viewpoint discrimination begins.
• 33:30
  Speaker 2: Well, the unprecedented, you know, I think that is a
• 33:33
  Speaker 2: theme of this podcast that you hear it a lot,
• 33:35
  Speaker 2: and if you you know, watch public media journalists who
• 33:39
  Speaker 2: are doing a great job of covering this. The one
• 33:42
  Speaker 2: issue that I often have is when they start talking
• 33:44
  Speaker 2: about history and they say it's unprecedent. No, it's not unprecedent.
• 33:47
  Speaker 2: We've seen total shutdowns of free speech in American history before,
• 33:51
  Speaker 2: starting with John Adams, somebody who didn't.
• 33:54
  Speaker 3: Believe in free speech at all.
• 33:55
  Speaker 2: You thought, if you criticized the president of the United States,
• 33:58
  Speaker 2: you should go to prison. And in fact he had
• 34:00
  Speaker 2: written into the Sedition Act was the idea that it
• 34:03
  Speaker 2: was illegal to criticize the president, but it was fine
• 34:06
  Speaker 2: to criticize the vice president. It was Thomas Jefferson, the
• 34:09
  Speaker 2: leader of the opposition party under the way presidential elections work, so.
• 34:13
  Speaker 1: That that was worse getting started on those guys, I know, yeah, you.
• 34:17
  Speaker 2: Know Woodrow Wilson, you know, advocated for the shutdown of
• 34:20
  Speaker 2: leftist speech, including the Bernie Sanders of the time, who
• 34:24
  Speaker 2: found himself on trial for his viewpoints of democratic socialism.
• 34:29
  Speaker 2: Eugene Devi and you know ran for president from prison.
• 34:33
  Speaker 3: So there is a long history.
• 34:34
  Speaker 2: Unfortunately, the McCarthy period we could talk about as well.
• 34:38
  Speaker 2: What's going on here is it's not in the open
• 34:40
  Speaker 2: in the same way it's happening in secret, and yet
• 34:43
  Speaker 2: it's in some ways that makes it more dangerous because
• 34:46
  Speaker 2: it's harder to call it out. And that's why it's
• 34:48
  Speaker 2: so important that we have these individuals who are willing
• 34:51
  Speaker 2: to stand up to it.
• 34:52
  Speaker 1: Well, that will bring us back to Koby because I mean,
• 34:55
  Speaker 1: I guess, as we've discovered before, posting pictures of seashells
• 34:59
  Speaker 1: as a gate crime.
• 35:00
  Speaker 4: Corey, I need you to walk me through this. Now.
• 35:02
  Speaker 1: We know that they've gone after James Comy because he
• 35:05
  Speaker 1: saw some seashells that spelled out eighty six forty seven,
• 35:08
  Speaker 1: took a picture, posted it on Instagram, and they're saying
• 35:12
  Speaker 1: that this was somehow a death threat. We've talked extensively
• 35:15
  Speaker 1: about how this is Donald Trump's m He punishes people
• 35:19
  Speaker 1: who tell the truth about him by taking the court
• 35:22
  Speaker 1: and trying to bankrupt them with legal fees over absolute
• 35:24
  Speaker 1: rubbish cases like this. But Combe's attorneys are alleging that
• 35:29
  Speaker 1: there was warrantless surveillance during an investigation into his eighty
• 35:34
  Speaker 1: six forty seven Instagram post. Can you break that down?
• 35:38
  Speaker 1: I mean, what has been accused and if it's proven,
• 35:40
  Speaker 1: what rights would potentially be implicated here?
• 35:43
  Speaker 2: Well, you know you have a right the United States
• 35:46
  Speaker 2: Constitution against unreasonable search and seizure.
• 35:49
  Speaker 3: And if you want to comply.
• 35:51
  Speaker 2: If government wants to get a warrant to spy on
• 35:53
  Speaker 2: us or to investigate us, it needs to get a warrant,
• 35:57
  Speaker 2: needs to go to court and show that it has
• 35:59
  Speaker 2: a reasonable suspicion that you know, there's some criminal activity here.
• 36:03
  Speaker 2: And so you know, before the indictment, it looks like
• 36:07
  Speaker 2: that's what was going on, that they didn't go to court,
• 36:09
  Speaker 2: they didn't follow the procedure, that they were just basically.
• 36:12
  Speaker 3: Spying on their opponents.
• 36:13
  Speaker 2: This is, you know, is talking about precedented. This is
• 36:16
  Speaker 2: very Nixonian. This was what the plumbers were all about.
• 36:20
  Speaker 2: What Nixon was trying to do with the FBI, getting
• 36:23
  Speaker 2: them to spy on his opponents and you know, including
• 36:28
  Speaker 2: in this case a former FBI director. So no, you
• 36:32
  Speaker 2: can't do that. I mean, I have to say something
• 36:34
  Speaker 2: about the case. As bad as this is, you know,
• 36:37
  Speaker 2: warrantless surveyed because questions. I mean, when I teach, I've
• 36:42
  Speaker 2: written a book about the First Amendment called When the
• 36:44
  Speaker 2: State Speaks, What should it say? All about the idea
• 36:48
  Speaker 2: about the freedom of speech and when government itself can
• 36:50
  Speaker 2: share its own opinions without violating our rights. And you know,
• 36:54
  Speaker 2: I've taught First Amendment and a variety of law schools,
• 36:58
  Speaker 2: including the one which I will say I have enormous
• 37:02
  Speaker 2: love foreign respect at Harvard University who are fighting back,
• 37:05
  Speaker 2: and when I did that class, this example would be
• 37:10
  Speaker 2: the kind of thing I would say in the beginning, like,
• 37:13
  Speaker 2: let me give you something that's like so obvious that
• 37:17
  Speaker 2: you can't do it, and trying to claim that somebody
• 37:20
  Speaker 2: is issuing a threat when they're obviously using one of
• 37:23
  Speaker 2: the most common expressions out there eighty six somebody doesn't mean,
• 37:28
  Speaker 2: you know, well from their job, doesn't mean kill them.
• 37:30
  Speaker 4: It means cancel that what I mean is.
• 37:33
  Speaker 2: And so it's just almost like so much of Trump's
• 37:37
  Speaker 2: administration is like this that it just strains credulity to
• 37:41
  Speaker 2: try to think about the way in which there even
• 37:45
  Speaker 2: is an argument about this. You know, the First Amendment
• 37:48
  Speaker 2: says Congress shall make no law abridging the freedom of speech.
• 37:52
  Speaker 3: But I also will add.
• 37:54
  Speaker 2: To that that you know, you could give an example
• 37:57
  Speaker 2: that would just scream an abridgment of rereadom of speech
• 38:00
  Speaker 2: and saying that you go to prison for eighty six
• 38:02
  Speaker 2: forty seven is as it's almost like saying I hate
• 38:06
  Speaker 2: free speech. That's what Donald Trump's doing, and DOJ is
• 38:09
  Speaker 2: doing and bringing these charges.
• 38:11
  Speaker 1: Well, and again, let's be honest. I mean, tell me
• 38:13
  Speaker 1: if I'm wrong about this professor. But like this case
• 38:15
  Speaker 1: against Comy, it's already dead, right, it's never going anywhere.
• 38:19
  Speaker 1: They know this case is garbage. They are just using
• 38:23
  Speaker 1: the court system to harass this man because that is
• 38:26
  Speaker 1: what Donald Trump has done with the court system, because
• 38:28
  Speaker 1: he inherited a lot of money and you didn't, and
• 38:30
  Speaker 1: this is how he beats people up in the courts.
• 38:32
  Speaker 1: The case itself isn't going anywhere, but their defense attorneys
• 38:36
  Speaker 1: are saying that after this whole thing happened with the photo,
• 38:38
  Speaker 1: the Secret Service, without a warrant and at the direction
• 38:42
  Speaker 1: of an unnamed high level DOJ official, did physical surveillance
• 38:46
  Speaker 1: and they tracked his cell phone as he and his
• 38:49
  Speaker 1: wife did a drive from North Carolina to Virginia. I
• 38:51
  Speaker 1: mean that seems rather black and white when it comes
• 38:54
  Speaker 1: to legality, doesn't it corny?
• 38:57
  Speaker 2: Yeah, because it goes to you know, it's a it's
• 39:00
  Speaker 2: a free speech violation, and B it's obviously a selected
• 39:03
  Speaker 2: prosecution where they're going after the individual not for a
• 39:07
  Speaker 2: crime that was committed.
• 39:08
  Speaker 3: They couldn't care less about the crime. They're looking for anything.
• 39:11
  Speaker 2: And my guess is that James Gommi is such a
• 39:13
  Speaker 2: straight shooter that there is no crime, so they had
• 39:16
  Speaker 2: to just make something up. But you know, again, here's
• 39:19
  Speaker 2: what's scary about the case. It's so obviously a violation
• 39:22
  Speaker 2: of his rights to the free speech and also his
• 39:25
  Speaker 2: rights against unreasonable search and seizure. We're adding to that now,
• 39:29
  Speaker 2: and yet it isn't dead. And even though it's unlikely
• 39:31
  Speaker 2: I agree that he's going to get a conviction, or
• 39:34
  Speaker 2: that this will get to a jury, or that a
• 39:36
  Speaker 2: jury would actually agree with any of it is it
• 39:39
  Speaker 2: doesn't matter. That's not what they're trying to do. They're
• 39:40
  Speaker 2: just trying to a scare him and be scare the
• 39:44
  Speaker 2: rest of us, because if they could do it to him,
• 39:46
  Speaker 2: they could do it to you at me, John. I mean,
• 39:48
  Speaker 2: that's really the bottom line.
• 39:49
  Speaker 1: It's important they are They are trying to you know,
• 39:52
  Speaker 1: stochastic self censorship is the name of the game. And again,
• 39:56
  Speaker 1: the filing also alleges that investigative updates were being provided
• 40:00
  Speaker 1: directly to Air Force One. Again, Professor liked the New
• 40:04
  Speaker 1: York Times journalists. If it can be proven that the
• 40:07
  Speaker 1: president was directing this campaign of harassment and retribution, then
• 40:11
  Speaker 1: we're into some very black and white Nicksonian territory.
• 40:14
  Speaker 4: Right, That's right.
• 40:15
  Speaker 2: I mean that really was what Nixon was trying to
• 40:17
  Speaker 2: do in all points, was control all aspects of the government, control,
• 40:22
  Speaker 2: you know, the Department of Justice. He actually imagined using
• 40:24
  Speaker 2: special prosecutors to attack his opponents. He certainly demanded the
• 40:28
  Speaker 2: prosecution of Daniel Elsberg for the release of the Pentagon papers,
• 40:32
  Speaker 2: and they knew they couldn't win that case, so they
• 40:34
  Speaker 2: ordered all sorts of dirty tricks around it. And you're
• 40:37
  Speaker 2: seeing the difference again. They were often stopped by people
• 40:42
  Speaker 2: like Elliott Richardson, people who might have been partisan Republicans,
• 40:46
  Speaker 2: but who aren't going to go so far as to
• 40:48
  Speaker 2: enable it. What's different now is that the Todd Blanches
• 40:51
  Speaker 2: of the world. I'll add Jake Clayton to that list too,
• 40:54
  Speaker 2: talking about the New York case, and so many of
• 40:57
  Speaker 2: the US attorneys miss purerou instance with her now thankfully
• 41:02
  Speaker 2: ended prosecution of somebody supposedly for terrorism and destroying the
• 41:06
  Speaker 2: reflecting pool that Donald Trump couldn't manage to make blue.
• 41:11
  Speaker 2: So all of these are things I think that wouldn't
• 41:14
  Speaker 2: have happened in prior administrations. You would have had more
• 41:17
  Speaker 2: secret ways of doing it, or in the Nixon case,
• 41:21
  Speaker 2: he was trying and stopped often. But you know what's
• 41:24
  Speaker 2: so scary is that this Department of Justice is turning
• 41:28
  Speaker 2: into the personal lawyers for the president. I have to
• 41:30
  Speaker 2: say something John about history, because just to shape how
• 41:34
  Speaker 2: important this is. At the founding, one of the chief
• 41:37
  Speaker 2: objections to the whole system was that the attorney general
• 41:41
  Speaker 2: was going to work for the president. And that was
• 41:43
  Speaker 2: the objection to the unitary executive in New York, for instance,
• 41:47
  Speaker 2: which they had as a model Letitia James. The attorney
• 41:50
  Speaker 2: general is independently elected. That gives her a way of
• 41:53
  Speaker 2: saying no to the Andrew Cuomo's of the world. And
• 41:58
  Speaker 2: if we would have had that situation elected independent attorney
• 42:01
  Speaker 2: general at the federal level, that person would just say
• 42:04
  Speaker 2: no to Trump.
• 42:05
  Speaker 3: But that's not the system.
• 42:06
  Speaker 2: System is in which the attorney general is in the cabinet,
• 42:10
  Speaker 2: in the executive branch. And that's what we're seeing basically
• 42:13
  Speaker 2: eroding our democracy.
• 42:15
  Speaker 1: And thank you for mentioning, Judge Janine. I know we're
• 42:17
  Speaker 1: not covering her this week, but as someone who's been
• 42:19
  Speaker 1: on her show and hung out in her office, it's
• 42:21
  Speaker 1: amazing to see America's most famous boxed wine enthusiast be
• 42:26
  Speaker 1: demoted to deep state trader because she made the catastrophic
• 42:30
  Speaker 1: sin of looking at the reflecting pool evidence and not
• 42:33
  Speaker 1: putting innocent Americans in jail's.
• 42:35
  Speaker 3: You have a boxed wine with her? Is that?
• 42:37
  Speaker 4: No?
• 42:38
  Speaker 1: I know I did not know. My eyes still sting
• 42:41
  Speaker 1: from the scent of it. So you mentioned, you mentioned, Yeah,
• 42:44
  Speaker 1: she didn't like me on her show. I'll tell you
• 42:46
  Speaker 1: that story. Sometimes. You mentioned Jay Clayton, and he's tell
• 42:50
  Speaker 1: us the story. I did her show, and you know
• 42:52
  Speaker 1: it's it's not that satisfying.
• 42:54
  Speaker 2: You know.
• 42:54
  Speaker 1: I just said to her, she was just so nasty,
• 42:56
  Speaker 1: and I finally said on the air, you have liberal friends.
• 42:59
  Speaker 1: She said, I admit you're a liberal. I'm like, I'm like,
• 43:01
  Speaker 1: what do you mean. He goes, admit you're a liberal?
• 43:03
  Speaker 1: And I'm like, I'm a liberal according to the dictionary definition.
• 43:07
  Speaker 1: She goes, no, it'd make you're a liberal. I'm like, well,
• 43:09
  Speaker 1: I am the way George Washington intended the word the
• 43:11
  Speaker 1: way Jesus was it make you a liberal? And I said, Judge,
• 43:14
  Speaker 1: I'll admit I'm a liberal if you admit to your
• 43:16
  Speaker 1: audience that you live in New York City and have
• 43:18
  Speaker 1: liberal friends. And I was never invited back on that
• 43:22
  Speaker 1: show after that. So aren't you glad you dragged that out?
• 43:25
  Speaker 1: So let me ask you, though, Jake Clayton your handshake, buddy.
• 43:29
  Speaker 1: He's now been confirmed as Director of National Intelligence. It
• 43:33
  Speaker 1: was Tulsa that it was Pulty, that it was Chanye
• 43:34
  Speaker 1: and Clayton that was Pulty. Next year it's going to
• 43:36
  Speaker 1: be Kid Rocks. Hepatitis gets this job. But obviously there's
• 43:39
  Speaker 1: a lot of constitutional concerns. Jay Clayton seems to have
• 43:42
  Speaker 1: got the job because he was willing to go on
• 43:44
  Speaker 1: CNBC and say, oh, there might have been voter irregularity
• 43:48
  Speaker 1: in California. Three days later he gets the offer. But
• 43:52
  Speaker 1: while this is happening, our intelligence community is undergoing significant
• 43:56
  Speaker 1: workforce reductions, I guess, and that's one way to reduce intelligence, right,
• 44:00
  Speaker 1: But are there constitutional concerns when major national security institutions
• 44:06
  Speaker 1: are being substantially downsized by the executive branch? This is
• 44:12
  Speaker 1: again national security stuff they're downsizing.
• 44:16
  Speaker 2: Yeah, I mean necessarily is a way to bring the
• 44:18
  Speaker 2: point home. So the guy Jake Clayton, yes, I will
• 44:21
  Speaker 2: admit I have shook in his hand.
• 44:23
  Speaker 1: I regret, Okay, that's okay. I broke bread with Jude Janine.
• 44:26
  Speaker 1: We're all sinners, yet no one's.
• 44:27
  Speaker 4: Better than yeah.
• 44:29
  Speaker 3: You know.
• 44:30
  Speaker 2: The fact is that the same person that we've been
• 44:32
  Speaker 2: talking about, who may be under orders of Donald Trump
• 44:36
  Speaker 2: or Todd Blanche but regardless of who ordered it, he
• 44:39
  Speaker 2: did it subpoena these journalists in an attempt to intimidate them,
• 44:43
  Speaker 2: and there was no legal reason to do so. And
• 44:45
  Speaker 2: now they're trying to back off, and it wasn't They
• 44:47
  Speaker 2: weren't targets.
• 44:48
  Speaker 3: Of the investigation. Bottom line is he.
• 44:50
  Speaker 2: Did it, and he brought them to the grand jury
• 44:53
  Speaker 2: in order to scare them. And now that guy is
• 44:56
  Speaker 2: going to be given the position he is not going
• 45:00
  Speaker 2: to be. He is the Director of National Intelligence that
• 45:04
  Speaker 2: gives him control over this enormous surveillance apparatus. We talked
• 45:08
  Speaker 2: before about unreasonable search and seizure. One of the problems
• 45:12
  Speaker 2: with the DNI, with the entire surveillance system, is that
• 45:16
  Speaker 2: there's a massive amount of search that's being done supposedly
• 45:20
  Speaker 2: to stop terrorists. But we now know increasingly that some
• 45:24
  Speaker 2: of these warrantless searches, these are searches without a warrant,
• 45:27
  Speaker 2: are catching up American citizens.
• 45:30
  Speaker 3: And who's the guy that's.
• 45:31
  Speaker 2: Going to be able to kind of use these weekly
• 45:34
  Speaker 2: enforced rules, these exceptions to the Constitution in order to
• 45:38
  Speaker 2: make the decision of who to go. Well, this person
• 45:40
  Speaker 2: could use this international surveillance state to go after the
• 45:44
  Speaker 2: political opponents of Donald Trump. Now that would have sounded
• 45:47
  Speaker 2: totally paranoid. I think three years ago.
• 45:51
  Speaker 3: It's not paranoid at all. There's good reasons. That's exactly
• 45:54
  Speaker 3: what's happening.
• 45:55
  Speaker 1: That's why Bill Poulti was made acting DNI because he
• 45:59
  Speaker 1: had no experience, but he was a mortgage guy, and
• 46:01
  Speaker 1: so he abused the mechanisms of national intelligence to harass
• 46:06
  Speaker 1: Letitia James, to try to go after people who've told
• 46:08
  Speaker 1: the truth about Trump and see if they have real
• 46:10
  Speaker 1: estate problems he could prosecute and exploit. But I mean, again,
• 46:14
  Speaker 1: this is Donald Trump, right and they're reducing intelligence like
• 46:18
  Speaker 1: they're downsizing spies. China and Russia are updating their linkedins
• 46:23
  Speaker 1: right now. I mean, shouldn't Congress exercise a little more
• 46:27
  Speaker 1: oversight regarding reductions in intelligence capacity when there are concerns
• 46:32
  Speaker 1: that a president I don't know could be compromised by
• 46:35
  Speaker 1: a foreign entity.
• 46:37
  Speaker 3: Yeah, I mean, you know again in the.
• 46:39
  Speaker 4: Answer story, hold, I mean, this is terrifying.
• 46:42
  Speaker 2: You know, I want to just bring together this story.
• 46:45
  Speaker 2: I think polls together so many of the different threads, really,
• 46:48
  Speaker 2: all of them that we've been talking about today, because
• 46:50
  Speaker 2: you have somebody who was thought, I should say originally
• 46:55
  Speaker 2: to be a person that would stand up to Donald Trump.
• 46:58
  Speaker 3: And that's why, you know he was the head of
• 46:59
  Speaker 3: the SEC.
• 47:01
  Speaker 2: The thought was if he is the director of National Intelligence,
• 47:04
  Speaker 2: he can be confirmed because he has integrity. But the
• 47:07
  Speaker 2: second that those subpoenas happen for those journalists, he was
• 47:11
  Speaker 2: making it clear he was sending a message to one
• 47:14
  Speaker 2: person that no, he's not some schoolboy, He's not this
• 47:18
  Speaker 2: choir boy. He is somebody that is going to do
• 47:21
  Speaker 2: the bidding of the president of the United States. And
• 47:22
  Speaker 2: now he's being put into position where, yeah, he will
• 47:25
  Speaker 2: have enormous access to the information of Americans and is
• 47:29
  Speaker 2: he going to use it to spy on American citizens
• 47:31
  Speaker 2: who are opponents of the president. I don't have any
• 47:33
  Speaker 2: confidence that he won't, and in fact, in all likelihoods,
• 47:36
  Speaker 2: given what we saw with these subpoenas, he will.
• 47:39
  Speaker 1: Have you seen the Odyssey, Corey, I'm looking for way
• 47:42
  Speaker 1: to get out of this beat. I'm looking for something positive.
• 47:44
  Speaker 3: Did you like him? Well, we always want to talk
• 47:47
  Speaker 3: about heroes.
• 47:48
  Speaker 2: And you know, there's a debate about The Odyssey that
• 47:50
  Speaker 2: I'm following among you know, whether or not did they
• 47:53
  Speaker 2: basically turn this into an anti war film when really.
• 47:57
  Speaker 3: The Odyssey is not. It's about glory.
• 48:00
  Speaker 2: You know, there are all these academic arguments it's a
• 48:01
  Speaker 2: film that really is about heroism, about.
• 48:05
  Speaker 3: Wanting to go home. You know, I don't know.
• 48:08
  Speaker 2: I don't know how to tie it to the moment,
• 48:10
  Speaker 2: to be honest, John, But I feel like it's something
• 48:13
  Speaker 2: people should see.
• 48:14
  Speaker 1: Should everyone should see. It's a film about cinema, and
• 48:16
  Speaker 1: it's the greatest reason to go to the cinema. I
• 48:19
  Speaker 1: saw it in Imax in LA two weeks ago, and
• 48:21
  Speaker 1: I can't wait to see it Imax again several years
• 48:24
  Speaker 1: from now when I can get a ticket.
• 48:26
  Speaker 4: It's just amazing.
• 48:28
  Speaker 2: In New York where I am, I said, there was
• 48:30
  Speaker 2: a showing that there was one seat available. I think
• 48:33
  Speaker 2: it was five thirty am, so I was thinking about
• 48:35
  Speaker 2: going again. That's awesome how much I liked it, and
• 48:39
  Speaker 2: I probably will going. We'll see if I could get
• 48:41
  Speaker 2: my wife to come with me, or I'll go by
• 48:43
  Speaker 2: myself if I need to.
• 48:45
  Speaker 1: See an imax. I mean the whole seat shaking. It
• 48:47
  Speaker 1: just it really really works. I had a lot of
• 48:49
  Speaker 1: problems with Oppenheimer, and you know, a lot of problem
• 48:52
  Speaker 1: and great filmmaking, but a lot of storytelling problems, and
• 48:55
  Speaker 1: this was just so satisfying and a great time in
• 48:58
  Speaker 1: the movies.
• 48:58
  Speaker 2: We don't talk enough about the idea that we're covering
• 49:01
  Speaker 2: these stories week after week. They are depressing. It is
• 49:04
  Speaker 2: an obligation to know about them, and I think, by
• 49:07
  Speaker 2: the way, people should be educating their kids to know
• 49:10
  Speaker 2: about the horror of what's happening. But it's all in
• 49:13
  Speaker 2: the hope that we'll recover and there also are ways
• 49:16
  Speaker 2: in the midst of it to reclaim our humanity, and
• 49:18
  Speaker 2: that's one thing that works of art do, including this one.
• 49:21
  Speaker 2: And so you know, we'll keep going to the movies
• 49:24
  Speaker 2: even as we discuss the attempted destruction of the minds.
• 49:28
  Speaker 1: Yeap, that's what it's looking like. All right, we got
• 49:30
  Speaker 1: to take another break back in just a moment. This
• 49:33
  Speaker 1: is the Oath in the Office.
• 49:38
  Speaker 6: Hey all, Clean Kershner here, So friends, I hope you'll
• 49:41
  Speaker 6: join me on my audio podcast, Justice Matters.
• 49:44
  Speaker 4: You care about.
• 49:45
  Speaker 6: Ethics and government, criminal justice, reform, a conflict free federal judiciary.
• 49:53
  Speaker 4: I thought so.
• 49:54
  Speaker 6: On Justice Matters, we take on issues involving the need
• 49:57
  Speaker 6: to reform our government and it's institutions, and we talk
• 50:01
  Speaker 6: about real, achievable reform. I hope you'll join us. Look
• 50:06
  Speaker 6: for Justice Matters wherever you usually get your podcasts.
• 50:15
  Speaker 1: Welcome back to the Oath in the Office podcast. I'm
• 50:18
  Speaker 1: John Fugel Sang and I got to say Professor Corey
• 50:20
  Speaker 1: Bretschneider is a man who spent years studying constitutional crises.
• 50:24
  Speaker 1: He never expected them to become serialized TV. Corey, I mean,
• 50:29
  Speaker 1: when we look across all these issues that we've covered,
• 50:31
  Speaker 1: the DOJ investigations, the election administration, the media, regulation and harassment,
• 50:37
  Speaker 1: restructuring of intelligence, are there any common constitutional threads besides
• 50:43
  Speaker 1: oh my god, our hair's on fire.
• 50:45
  Speaker 2: You know, I think you've got one thing. I was
• 50:48
  Speaker 2: on CNN today talking about Blanche and one thing that
• 50:52
  Speaker 2: you know, this John from doing your various shows as
• 50:55
  Speaker 2: a guest, there's often a tendency to just sort of
• 50:57
  Speaker 2: break down the story in the moment, to do a
• 51:00
  Speaker 2: lot of prediction, to do a sort of referee, you know,
• 51:04
  Speaker 2: or who's ahead scorekeeping. And I think the real key,
• 51:08
  Speaker 2: the whole reason why I wanted to start the Oath
• 51:10
  Speaker 2: in the Office podcast with you, is to tie the
• 51:12
  Speaker 2: stories together, because there really is one story, and that's
• 51:16
  Speaker 2: that the president pledges to protect the law under the Constitution.
• 51:20
  Speaker 2: He has to say that the first few seconds in office,
• 51:23
  Speaker 2: and every moment each of these stories is not just
• 51:26
  Speaker 2: about something that we disagree with or a partisan dispute,
• 51:31
  Speaker 2: but really is an attack on democracy. And sometimes, you know,
• 51:34
  Speaker 2: one thing that really hurts, frankly, is when I hear
• 51:37
  Speaker 2: people say if I'm attacking Donald Trump, that I'm being partisan.
• 51:40
  Speaker 2: I am a professor of constitutional law who cares about democracy.
• 51:45
  Speaker 2: That's the reason I'm doing this stuff, because what Trump
• 51:48
  Speaker 2: is about each moment each of these stories is not
• 51:52
  Speaker 2: a normal partisan disagreement.
• 51:55
  Speaker 3: It is an.
• 51:55
  Speaker 2: Attack on the whole creation of the American Republic and
• 51:59
  Speaker 2: really an attempt to turn it either into a monarchy.
• 52:02
  Speaker 2: That's probably his fantasy or more likely an authoritarian dictatorship
• 52:06
  Speaker 2: and through things like the unitary executive. Unfortunately, he's succeeding,
• 52:11
  Speaker 2: you know, over and over. He hasn't won yet.
• 52:13
  Speaker 3: But that's what ties all these stories together.
• 52:16
  Speaker 1: It just seems like increasingly our major political disputes always
• 52:20
  Speaker 1: just seem to end up in front of the Supreme Court,
• 52:22
  Speaker 1: Like the Supreme Court is now America's customer service department
• 52:25
  Speaker 1: for everything. I mean, is that healthy for a constitutional democracy?
• 52:30
  Speaker 4: Ooka?
• 52:30
  Speaker 2: I think the Supreme Court should have a role in
• 52:32
  Speaker 2: protecting the rights of democracy. It should have protected rights
• 52:35
  Speaker 2: of free speech. In the Eugene Debs case, it didn't.
• 52:39
  Speaker 2: Sometimes it has. It protected the New York Times in
• 52:41
  Speaker 2: the Pentagon Papers case in which Daniel Ellsberg leaked the
• 52:44
  Speaker 2: secret history of the war. It has moments throughout American history,
• 52:49
  Speaker 2: most famously during the civil rights movement. Of course, Brown
• 52:52
  Speaker 2: versus Board of Education ruling that Topeka, Kansas is for
• 52:56
  Speaker 2: segregation of students was on constitutional. Those are moments where
• 53:00
  Speaker 2: the Court is active and yet doing the right thing.
• 53:04
  Speaker 3: But what we're seeing increasingly is the.
• 53:06
  Speaker 2: Control of this court by government lawyers, and again from
• 53:10
  Speaker 2: the Reagan administration.
• 53:12
  Speaker 3: Lawyers Alito and Roberts.
• 53:14
  Speaker 2: Instead of going to Justice Alito, Justice Roberts are going
• 53:16
  Speaker 2: the lawyers Alito and Roberts trying to engineer a system
• 53:20
  Speaker 2: that swallows up the other branches of government into the
• 53:23
  Speaker 2: executive branch. And nowhere you know that the force that
• 53:27
  Speaker 2: we saw that with right before this president won election,
• 53:31
  Speaker 2: actually the day after my book came out, threatening that
• 53:34
  Speaker 2: the Supreme Court often mikes crises worse rather than better,
• 53:38
  Speaker 2: was in that immunity case, which was essentially a green
• 53:40
  Speaker 2: light for all of it. We saw it too in
• 53:43
  Speaker 2: the destruction of independent agencies. So you know, there is
• 53:47
  Speaker 2: a role for a Supreme Court. I'm not an abolished
• 53:50
  Speaker 2: the Supreme Court person, but I certainly don't want to
• 53:52
  Speaker 2: see it commandeered by government lawyers with an agenda to
• 53:56
  Speaker 2: try to help, by the way, not.
• 53:58
  Speaker 3: Just any truth event.
• 54:00
  Speaker 2: It seem fine in stopping Biden, you know, in all
• 54:02
  Speaker 2: sorts of ways, but to help this president basically succeed
• 54:05
  Speaker 2: in all his worst ambitions.
• 54:07
  Speaker 1: Yes, I mean, I'm sure Congress will do something about it,
• 54:10
  Speaker 1: but I mean, Corey, congressional oversight is just what is it?
• 54:13
  Speaker 3: This?
• 54:14
  Speaker 1: It's just strongly worded disappointment at this point, are there
• 54:18
  Speaker 1: any historical periods that could offer us useful comparisons to
• 54:22
  Speaker 1: what we're going through today in terms of executive authority.
• 54:26
  Speaker 3: I'm going to give you a really hopeful one.
• 54:28
  Speaker 2: And one of the main things I hear from listeners
• 54:30
  Speaker 2: is please give us some hope. So now here's a
• 54:33
  Speaker 2: pretty hopeful one. There's a poll that was released and
• 54:36
  Speaker 2: I spoke to the New Republic about this, and you
• 54:39
  Speaker 2: can see my comments there in that story. But I'll
• 54:42
  Speaker 2: tell you what I say, which is what the poll
• 54:44
  Speaker 2: is showing, is that Donald Trump's approval ratings are plummeting,
• 54:48
  Speaker 2: and they're plummeting on a very specific dimension, which is
• 54:52
  Speaker 2: his threat to democracy and especially his corruption. That's what
• 54:56
  Speaker 2: a lot of the polling was asking about. You see
• 54:59
  Speaker 2: these numbers slipping and slipping. And I was asked by
• 55:03
  Speaker 2: the writer of this New Republic article to comment on
• 55:07
  Speaker 2: whether or not we had ever seen in a historical
• 55:09
  Speaker 2: slippage like this, And the most immediate example was Richard Nixon.
• 55:13
  Speaker 3: We did see it.
• 55:14
  Speaker 2: He was re elected in nineteen seventy two, even as
• 55:17
  Speaker 2: Watergate picked up.
• 55:18
  Speaker 3: So it seems to care.
• 55:19
  Speaker 2: But as the details of the corruption and when you
• 55:22
  Speaker 2: heard him on the tapes, and when you heard him
• 55:25
  Speaker 2: ordering the crimes, when you heard the way covering up
• 55:28
  Speaker 2: the crimes, that's when the numbers started to go. Now,
• 55:31
  Speaker 2: they went lower than they are now. For Trump, they
• 55:33
  Speaker 2: went into the mid twenties. We're now in the low thirties.
• 55:36
  Speaker 2: But it shows, you know, the impeachment didn't come by accident.
• 55:40
  Speaker 2: Congress gets courage all of a sudden when the approval
• 55:43
  Speaker 2: ratings go way down. So especially if Democrats take this Congress,
• 55:48
  Speaker 2: I think it will go way down.
• 55:49
  Speaker 3: I'll put one fine point on that, though.
• 55:51
  Speaker 2: There is a difference between Nixon as much as I
• 55:54
  Speaker 2: want to use that as an example of hope, because
• 55:56
  Speaker 2: those low poll numbers were directly responsible. I think for
• 56:00
  Speaker 2: the fact that I should say impeachment began in the
• 56:02
  Speaker 2: House Judiciary Committee, and when Nixon saw that the votes
• 56:06
  Speaker 2: were there to remove him, he resigned before there was
• 56:08
  Speaker 2: a full impeachment in the House. And that would be
• 56:11
  Speaker 2: an amazing moment here what.
• 56:13
  Speaker 1: May never happened if Nixon and at Fox News, he
• 56:15
  Speaker 1: would not have even opened the door for Bury Goldwater.
• 56:19
  Speaker 3: Maybe I don't know.
• 56:20
  Speaker 2: I mean, because when the numbers are that low, you know,
• 56:23
  Speaker 2: Fox isn't going to save Trump.
• 56:24
  Speaker 3: I don't think.
• 56:25
  Speaker 2: I mean, if his numbers go into twenty five percent territory,
• 56:28
  Speaker 2: we'll see.
• 56:29
  Speaker 3: I think that.
• 56:30
  Speaker 2: You know, Fox's whole point is to keep the numbers up, right,
• 56:32
  Speaker 2: that's the idea.
• 56:34
  Speaker 1: But no, no, there's Rupert. They're no different than Trump. They
• 56:37
  Speaker 1: want to keep their numbers up. Rupert is tearing Trump
• 56:40
  Speaker 1: to shreds in the Wall Street Journal every day and
• 56:43
  Speaker 1: still selling him as our savior on Fox News. Rupert
• 56:47
  Speaker 1: cares about his profits more than right or wrong when
• 56:50
  Speaker 1: it comes to Trump and everything else.
• 56:52
  Speaker 2: Well, I mean, it'll be an interesting example. I don't
• 56:54
  Speaker 2: expect I should say. And I think this is the
• 56:56
  Speaker 2: point you're making too. That Trump is gonna, you know,
• 56:59
  Speaker 2: receive a bunch of Republicans who tell him to resign, No,
• 57:02
  Speaker 2: please step down.
• 57:03
  Speaker 3: That's not going to happen.
• 57:04
  Speaker 2: But the question is whether or not the votes will
• 57:06
  Speaker 2: be there as the numbers dip, And I think they
• 57:08
  Speaker 2: might be even if Fox is giving him lip serves.
• 57:11
  Speaker 2: And as you say, you know, in the same way
• 57:13
  Speaker 2: that Ruber Murdoch's newspapers might turn on Trump even when
• 57:16
  Speaker 2: Fox News doesn't. Eventually, Fox itself might turn on Trump,
• 57:19
  Speaker 2: they might decide that, you know, it's good for ratings.
• 57:22
  Speaker 2: That's going to be good for ratings to see another
• 57:24
  Speaker 2: beachment and removal of a president, because that's very exciting.
• 57:28
  Speaker 3: Anyway.
• 57:29
  Speaker 2: Anyway, the numbers are plummeting. That is a hopeful thing.
• 57:32
  Speaker 2: It's hopeful for the midterms especially. I should say one
• 57:35
  Speaker 2: other thing about the midterms too, also on the note
• 57:37
  Speaker 2: of hope, which is that you know, Victor orbon did
• 57:41
  Speaker 2: everything he could to jerry mander, to essentially cheat in
• 57:44
  Speaker 2: order to stay in power, and the numbers of people
• 57:46
  Speaker 2: who came out in Hungary to vote against him were
• 57:49
  Speaker 2: so enormous that it did make a difference. And that's
• 57:52
  Speaker 2: what I'm hoping again that we'll see here, and these
• 57:54
  Speaker 2: low poll numbers I think help help make that possible.
• 57:58
  Speaker 2: One thing I was going to say too, is, you know,
• 58:00
  Speaker 2: although there is this parallel the corruption here, there was
• 58:04
  Speaker 2: corruption during Nixon.
• 58:05
  Speaker 3: The corruption here is off the charts.
• 58:08
  Speaker 2: You know, millions of dollars into this fund to fund
• 58:12
  Speaker 2: your slush fund, you know, the cryptocurrency scams, the bride plane,
• 58:18
  Speaker 2: I mean, a thing after things. So I just think
• 58:21
  Speaker 2: that that momentum that we're seeing that's bringing down those
• 58:24
  Speaker 2: numbers that that.
• 58:25
  Speaker 3: Can only be a good thing.
• 58:26
  Speaker 2: And I'm optimistic about what's to come once Democrats, as
• 58:29
  Speaker 2: I believe they will at least take the House.
• 58:32
  Speaker 4: Yeah, I think you're right.
• 58:33
  Speaker 1: We will never see a few Republican senators stop Donald Trump,
• 58:37
  Speaker 1: but maybe one or two of his own arteries.
• 58:41
  Speaker 4: Professor Corey Breutschneider.
• 58:42
  Speaker 1: What is the best way for our listeners to follow
• 58:44
  Speaker 1: you and keep up with your work throughout the week?
• 58:46
  Speaker 2: Well, you can find us wherever you get your podcasts.
• 58:49
  Speaker 3: I keep seeing these great reviews.
• 58:50
  Speaker 2: Pop up on Spotify, on Apple. There is also an
• 58:54
  Speaker 2: Oath in the Office substack. There is a Oath in
• 58:58
  Speaker 2: the Office YouTube which is takeing off. Check out all
• 59:01
  Speaker 2: of these options. Listen to us wherever you get your podcasts.
• 59:04
  Speaker 2: You could also buy my book The Presidents and the
• 59:06
  Speaker 2: People Five leaders who threatened democracy and the citizens who
• 59:09
  Speaker 2: fought to defend it, which is both all about the
• 59:12
  Speaker 2: Nixon abuses in part Adam's abuses. I'll mention the other
• 59:16
  Speaker 2: presidents Buchanan, Andrew Johnson, and Woodrow Wilson. But it's also
• 59:20
  Speaker 2: about those who fought back, and that's where the hope
• 59:23
  Speaker 2: comes from. And so what I'm doing every week is
• 59:26
  Speaker 2: trying to draw inspiration from those amazing citizens who've saved
• 59:29
  Speaker 2: us in the past, and hopefully we'll do it again.
• 59:32
  Speaker 4: That's it.
• 59:33
  Speaker 1: The previous constitutional crises did strengthen our institutions, so just
• 59:37
  Speaker 1: think how great things will be when this freak show
• 59:40
  Speaker 1: is over. Thank you all so much. I want to
• 59:42
  Speaker 1: think Wendy and Baywilp when everyone who puts the show together.
• 59:44
  Speaker 1: I host a show on Sirius XM Progress one twenty
• 59:48
  Speaker 1: seven every day. We are now daytimes, five days a
• 59:50
  Speaker 1: week noon two three eastern nine am to twelve noon Pacific.
• 59:54
  Speaker 1: Thank you all so much for joining us, and thanks
• 59:57
  Speaker 1: once again for being here on the Oath and the
• 59:59
  Speaker 1: Office