Latest / Phil and Ted's Sexy Boomer Show / A President Gone Rogue: Can the Constitution Save Democracy?

Transcript

A President Gone Rogue: Can the Constitution Save Democracy? · Phil and Ted's Sexy Boomer Show

• 0:00
  Welcome to Phil and Ted's Sexy Boomer Show.
• 0:02
  I'm Ted Bonnitt.
• 0:03
  Phil Proctor.
• 0:04
  Oh, wait a minute.
• 0:04
  Wait a minute.
• 0:05
  Where are you?
• 0:05
  Where am I?
• 0:06
  Where are you?
• 0:06
  Phil, get out of that box.
• 0:08
  Let's get this yellow microphone working.
• 0:10
  Hey, it's 2026.
• 0:12
  Is it?
• 0:13
  It's also the fifth anniversary of the insurrection.
• 0:16
  Oh, yeah.
• 0:16
  I think to celebrate, Trump tried to overthrow the election that he lost and he failed.
• 0:21
  Yep.
• 0:22
  And Paul Krugman wrote, I assumed that the threat was over.
• 0:25
  Never in my worst nightmares did I imagine that he would make a comeback and return to the.
• 0:32
  We should be clear about what's happening.
• 0:34
  American fascism is on the march.
• 0:36
  And anyone who balks at saying that clearly, who makes excuses and pretends that Trump and the people he brought in aren't monsters, is deeply unpatriotic.
• 0:46
  He's absolutely right.
• 0:47
  Yeah.
• 0:48
  And of course, the whole bizarre thing of this attempt to overthrow the government.
• 0:54
  Which one?
• 0:54
  I thought you were talking about Venezuela.
• 0:56
  Oh, yeah.
• 0:56
  Venezuela.
• 0:57
  Not speaking in Spanish, but yes.
• 1:01
  Which government?
• 1:02
  We're talking about overthrowing Greenland.
• 1:05
  Yeah.
• 1:06
  Let's overthrow Greenland.
• 1:07
  Next.
• 1:08
  We won't need refrigerators anymore.
• 1:10
  Today we are going to be talking about a subject that we would have considered 10 years ago to be very dry, but now is extremely interesting and exciting.
• 1:19
  Not Prohibition.
• 1:20
  We're going to talk about the U.S.
• 1:21
  Constitution.
• 1:22
  But my Constitution.
• 1:24
  Yes.
• 1:24
  And I said I wasn't feeling well.
• 1:26
  That's always a topic.
• 1:27
  And our Constitution isn't feeling very well either.
• 1:29
  That's what makes sexy boomers.
• 1:30
  All these bozos.
• 1:32
  Yeah.
• 1:32
  Taking over everything.
• 1:34
  What are the remedies to this?
• 1:36
  We're gonna talk about that today.
• 1:38
  Our guest is Professor Brian KaAmendmentltofMichiganStateUniversity.He'sgonnadiscussthe Trump presidency and the implications of the 25th amendment.
• 1:48
  We all look at the 25th Amendment as somehow a way to get rid of Trump.
• 1:52
  Unfortunately, it's far from easy to do.
• 1:55
  And what is the 25th Amendment?
• 1:56
  Is what we're gonna ask Professor Kalt about that.
• 1:59
  Good.
• 1:59
  I'm glad somebody.
• 2:00
  Professor Kalt is a graduate of Yale Law School for his research on the Constitution of the United States.
• 2:08
  Welcome to the Sexy Boomer Show.
• 2:09
  Glad to be here.
• 2:10
  Hey, we call you Brian.
• 2:12
  Sure.
• 2:13
  Great.
• 2:14
  You wrote a book, which I read last night, Constitutional the Legal Guide for Presidents and Their Enemies, which is a great title.
• 2:22
  And we've been talking since Trump's been on our radar about the 25th Amendment.
• 2:27
  And presidential pardons have been a huge part of the horror show.
• 2:32
  We've had the Honduran president being the drug Dealer being pardoned by Trump in the name of whatever.
• 2:39
  And your book that you wrote, was it 2018?
• 2:43
  So this is before the second presidency of Trump, 2012.
• 2:47
  Oh, you wrote the first 12.
• 2:48
  Oh, even before Trump.
• 2:50
  Then your book is even more prescient.
• 2:52
  You broke your book into six basic constitutional cliffhangers.
• 2:57
  Meaning if these things ever came up, it would cause a problem.
• 3:02
  A cliffhanger because of the Constitution not being fully articulate or specific, I should say, and purposely at times vague.
• 3:11
  And the subject matter is the president, what happens if he's criminally prosecuted?
• 3:15
  What if a president pardons himself?
• 3:18
  What if cabinet members try to oust an allegedly disabled president?
• 3:22
  That's a relevant question.
• 3:24
  Who then turns in turns tries to oust them?
• 3:28
  Then we have a secession issue.
• 3:29
  Everybody thinks that if the president and Vice president dies automatically, the speaker of the House takes over.
• 3:34
  That's not necessarily the case.
• 3:37
  If an ex president, can he be impeached?
• 3:40
  And then most interestingly for today's world, what happens if a two term president like Trump attempts to stay in power?
• 3:47
  So we'd love to unpack some of this.
• 3:51
  I would imagine you're getting a lot of calls since Trump's been president, writing.
• 3:55
  The book in 2012, my task was to convince people that it was worth worrying about this stuff, thinking these things through.
• 4:03
  But yeah, like you said, it's been like Trump's been using it as a checklist.
• 4:08
  Yeah.
• 4:09
  Do you think there's an intentional dismantling going on?
• 4:13
  I think that there's been a long term sort of erosion of some of the foundations of our constitutional stability and we're seeing that maybe accelerating a bit.
• 4:26
  But the main thing is that constitutional law is just up in the air.
• 4:31
  There's a lot of ways to interpret the Constitution and we're so polarized now that people don't really think much about what is it that the Constitution is supposed to say.
• 4:41
  They just latch on to whatever interpretation they can find that'll make their side win.
• 4:46
  There's one.
• 4:47
  They can find one in pretty much every case.
• 4:50
  That's what we're going to talk about today.
• 4:51
  So at the end of this show, people have a better understanding of what the 25th Amendment really offers.
• 4:57
  And also the idea of a third term, if this talk we're hearing about is even based in reality.
• 5:03
  And interestingly, it is.
• 5:06
  You were dragged into this because on the eve of the second impeachment trial of Trump in February of 21, the former president's attorneys filed a brief that made multiple References to a 2001 article on impeachment that you had
• 5:19
  written that concluded that impeachment of a former president is unconstitutional.
• 5:25
  You claim that was a misrepresentation of your article, wasn't it?
• 5:28
  But Trump was using it.
• 5:31
  Yeah.
• 5:31
  So because I wrote it so long before the issue came up, it wasn't seen, I guess, as the sort of politically motivated constitutional law argumentation that I just mentioned.
• 5:44
  So both sides cited it.
• 5:46
  The issue was that Trump's lawyers cited some arguments that I had mentioned in there as though I was endorsing them.
• 5:53
  So in the article, I said things like, someone might argue X, Y and Z.
• 5:58
  Here's why those things would be wrong.
• 6:00
  And then in their brief, they said X, Y and Z.
• 6:03
  And then they cited me as if I were endorsing that, which I wasn't.
• 6:07
  Wow.
• 6:07
  So I guess since Trump's been in office, you've been popular at parties.
• 6:10
  Who knew?
• 6:11
  I think I liked it better when my work was purely theoretical and obscure.
• 6:16
  But I know there are some in your book where you say this isn't a problem because we haven't had this happen before.
• 6:22
  Yeah.
• 6:22
  And almost everything that you wrote about has since happened with Trump.
• 6:27
  This is really interesting.
• 6:28
  And there's got a real great twist at the end of this.
• 6:31
  You remember the 2000 election?
• 6:33
  Do you remember when the Gore v.
• 6:36
  Bush.
• 6:36
  Yes.
• 6:37
  Florida situation.
• 6:39
  This is just a lesson about how this stuff is never new.
• 6:42
  Quote from your book.
• 6:44
  You wrote the whole election turned on a few hundred disputed votes in Florida.
• 6:48
  There had been ultra close presidential elections before, and there had been ambiguous results in individual states before.
• 6:55
  It was only a matter of time before both happened at the same time.
• 6:58
  And unfortunately, no steps have been taken to prevent it.
• 7:01
  The problem was that there were no rules for resolving a dispute like this.
• 7:04
  The quintessential American mixture of politics and litigation filled the void.
• 7:08
  The Republicans fought to defend their initial lead.
• 7:10
  The Democrats fought to open things back and recount the votes.
• 7:14
  The Republicans controlled key posts in the state government.
• 7:17
  The Democrats won key victories in Florida State Court.
• 7:20
  The Republicans took their case to Washington, D.C.
• 7:23
  where the Republican appointed Supreme Court justices declared there was no time for recounts, handing the election to the Republicans.
• 7:30
  And so, in 1877, Rutherford B.
• 7:35
  Hayes became our 19th president.
• 7:37
  That's amazing.
• 7:39
  History repeats itself.
• 7:41
  I took a little liberty there with the parallels because there were other states in dispute then, too.
• 7:46
  But yeah, the more things change, the more they stay the same sometimes.
• 7:49
  How did we not learn from that?
• 7:51
  And was this a partisan hack that the Supreme Court pulled on the American public back Then, because look at the direction of the country.
• 7:59
  Had it been a Gore or a Bush, think of the difference.
• 8:01
  Where we would be today.
• 8:03
  Oh, please.
• 8:04
  I do that all the time.
• 8:05
  In your view, Brian, did the Supreme Court leverage their partisan votes to change the outcome of that election, or did Gore lose?
• 8:16
  I've always analogized the 2000 election to football game.
• 8:21
  And when there's a.
• 8:23
  When there's a play, especially back in 2000, before they had all these lasers and replays and stuff, some down ends, and they have to spot the ball somewhere, and it's.
• 8:33
  There's a little guesswork there.
• 8:34
  They've got to get it to within an inch or so.
• 8:37
  They're not going to get it more accurate than that.
• 8:39
  But then when they pull out the chains to see if someone has a first first down, if they're a hair short or a hair past the line, then they say that it's a first down, and we have to
• 8:50
  pretend like the spot was that precise.
• 8:53
  I think what happened in that election was an ambiguous result, and the Supreme Court came in and said, we've got to spot it somewhere, and we've got to draw the line somewhere.
• 9:05
  And there's really no good answer that would have satisfied everyone.
• 9:11
  I don't think that their reasoning was as purely political as a lot of people seem to think.
• 9:18
  They really did just need to settle this.
• 9:22
  And it was the same thing in 1876, that election.
• 9:25
  It was ambiguous.
• 9:26
  You could make arguments on either side, but you can only have one president.
• 9:31
  So they had to do something.
• 9:33
  And the Republicans had the majority then.
• 9:35
  The Republicans on the Court had the majority in 2000.
• 9:39
  And so I guess it's not surprising that it came out that way.
• 9:42
  But I don't think that it was a purely political decision by them.
• 9:46
  I recognize a lot of people think that, but I never did.
• 9:48
  You wrote in your book that Al Gore could have challenged the Supreme Court's decision in Congress, but he lacked sufficient support to make such a gambit worthwhile.
• 9:57
  Which was also the same in the 1800s, I believe.
• 10:01
  But you wrote nonetheless, the Supreme Court's recent assertiveness is striking.
• 10:06
  And you wrote this in 2012.
• 10:08
  How quaint.
• 10:09
  I've only gotten more assertive since then.
• 10:11
  Boy, have they.
• 10:13
  In fairness, you write that writing Constitutions is hard, and to write a perfect one, the drafters would have to imagine every contingency that could arise over the next few centuries, and that's why we have amendments.
• 10:28
  But you write that most people think of the Constitution and battles over it in the context of governmental powers and individual rights.
• 10:34
  And in these areas, you wrote that the Constitution is short and vague.
• 10:40
  So we look at the Constitution as the ultimate arbiter of the major issues facing the country.
• 10:46
  And yet the Constitution, as you wrote, is short and vague.
• 10:50
  Was that by design or just by virtue of being 250 years old, no air conditioning?
• 10:56
  A lot of it was by design because they needed to last.
• 10:59
  And so they have to use vague phrases like reasonable search and seizure or due process, which have to have some flexibility.
• 11:09
  I think the problem we have is when the procedures in the Constitution have those ambiguities in them, because procedures don't benefit from being short and vague.
• 11:20
  And flexible.
• 11:21
  Procedures are supposed to give you certainty.
• 11:23
  You're supposed to know in advance how everything's supposed to work.
• 11:26
  And so if they could have done a better job on some of these procedures, maybe we would have been able to avoid these things.
• 11:33
  But again, with elections, sometimes there's just, there's a margin of error there and you don't know what's going to happen.
• 11:41
  Another thing the Constitution does, it's not vague, but it is short, is instead of trying to figure out what the best answer is in advance to problems that won't happen for hundreds of years, instead of saying that, they
• 11:55
  just say who decides?
• 11:57
  So for instance, with impeachment, they say high crimes and misdemeanors.
• 12:03
  That's what makes it an impeachable offense.
• 12:05
  No one really can agree on what high crimes and misdemeanors means, but they make it very clear who decides a majority in the House, 2/3 majority in the Senate to convict.
• 12:16
  And so it becomes, like Gerald Ford said, an impeachable offense is whatever a majority of the House thinks it is.
• 12:22
  And, and a removable offense is whatever 2/3 of the Senate thinks it is.
• 12:26
  But that all presumes that these decision makers in Congress are pursuing the best interests of, of the country, or at least of Congress.
• 12:37
  And what we've seen in the last couple decades is with all this political polarization, it's just one more front in this battle between Democrats and Republicans.
• 12:49
  And so it becomes impossible to get 2/3 of the Senate to agree on any consequential anything where people are taking sides.
• 12:57
  The Constitution never called for a two party system.
• 13:00
  Right.
• 13:00
  That, that's not part of the Constitution, is it?
• 13:03
  It's not.
• 13:04
  They, they very, very resolutely didn't want factions, as James Madison called it in the Federalist Papers.
• 13:12
  But almost immediately we had a two party system and an impeachment adapted to fit that new reality instead of it having to be what 2/3 of these august people in the Senate agreed be something that even people on
• 13:28
  your own side thought was bad enough.
• 13:31
  To get a 2/3 majority you need significant opposition from your own people.
• 13:37
  And that is why impeachment presidents is very rare.
• 13:42
  For the first 200 years we had Andrew Johnson and that was a rare moment where there was actually a two thirds majority of the other party controlling the Senate.
• 13:52
  And even he got acquitted.
• 13:53
  And then Nixon, who resigned because he would have been impeached and removed because the Republican leadership came to him and said, look, you've lost our support, you don't have the votes.
• 14:04
  How did the two party system evolve then?
• 14:06
  Why, if it wasn't stated in the Constitution.
• 14:08
  Yeah, how did it happen?
• 14:11
  Just natural human tendencies, I think.
• 14:14
  The President had people who supported him and people who didn't support.
• 14:18
  They coalesced around these different factions.
• 14:21
  And there was the, the group that wanted a more powerful central government and the group that wanted a weaker one.
• 14:27
  There was the industrial, not quite industrial yet, but the northeastern business interests versus the more agricultural base in the South.
• 14:37
  So these sort of battle lines got drawn.
• 14:40
  But for those first couple of hundred years there was still a lot of overlap because you had Southern Democrats, for instance, who were more conservative than the New England Republicans.
• 14:53
  And so there was overlap and you had the center and people governed from the center.
• 14:57
  So to get 2/3 in the Senate you would need a consensus among the center that went out far enough.
• 15:05
  Compromise.
• 15:05
  Now that we're so polarized, you can't get to 2/3 unless there is no center.
• 15:10
  And you can't get 2/3 unless somehow you can convince enough people on both poles that something is not just that it's bad, but nowadays convince them that it even happened.
• 15:21
  We're more like a two reality system now than a two party system.
• 15:24
  What is reality?
• 15:25
  What is reality?
• 15:26
  But it also comes down to the Constitution is relying on the pretense that we're going to have leaders that have character, good character, and that somebody with poor character can really rig the system.
• 15:42
  And in your first chapter of your book, you call prosecuting a president and you bring up something that's become very topical now, the unitary executive, which Russell Vogt, one of the.
• 15:53
  He's really the guy running the government.
• 15:55
  He's a religious zealot, he's a very dangerous guy.
• 16:00
  And he has used the unitary executive theory to be able to create a dictatorship in the White House.
• 16:06
  At least that's what it Seems that he wants to do imperial presidency.
• 16:10
  And you talk about it in your book as well, with Nixon.
• 16:13
  Prosecutors are very reluctant to prosecute a president for obvious reasons.
• 16:19
  Nixon and Clinton came the closest to being prosecuted in the office.
• 16:23
  But prosecutors have incentive not to do it because any person like Trump formidable enough to become president and avoid impeachment would have a good chance of finding at least one sympathetic juror.
• 16:36
  So that sort of nullifies the prosecution process.
• 16:40
  Now we see the unitary executive, that the executive power shall be vested in the President of the United States.
• 16:46
  What's your take on how the Trump administration is using or misusing the unitary executive theory?
• 16:54
  So the unitary executive theory is basically that all power in the executive branch needs to flow through the President, that everything is answerable to the president.
• 17:04
  And other sort of looser theories of executive control would say, president can't do everything himself.
• 17:11
  He has to have all of these underlings, and they are supposed to exercise independent judgment.
• 17:16
  And, yeah, he could fire them, but then he has to find someone else who can replace them, who the Senate would confirm.
• 17:24
  We saw this with Nixon and the special prosecutor.
• 17:27
  He didn't like how the special prosecutor was going after him, so he fired the special prosecutor.
• 17:33
  And it was a scandal.
• 17:35
  Saturday Night Massacre.
• 17:36
  Saturday night.
• 17:37
  And so the new prosecutor came in, Jaworski, and there was really nothing Nixon could do.
• 17:43
  He couldn't pay that political price again.
• 17:45
  And we don't have that sort of independence.
• 17:50
  And the political ramifications of Trump firing someone, going after him, we can see he's gone after the people who went after him with impunity and his complete control over the Justice Department.
• 18:06
  And look, constitutionally, the President is in charge of the executive branch, and power does flow through the President.
• 18:14
  And this tradition of an independent Department of Justice, which is really important, is only a few decades old.
• 18:21
  So it was tenuous.
• 18:23
  But, yeah, if he asserts that power that he has, and he has the checks and balances that are supposed to modulate this to keep him in check, fading away, because Congress is controlled by a party that is completely
• 18:41
  beholden to him, not looking at their role as a check on the President, but just, again, another front in this political battle between people who like Trump and people who don't like Trump.
• 18:52
  The people who like Trump have the majority.
• 18:55
  So there's not that check.
• 18:57
  He is in check right now.
• 18:59
  They'll write him a check for a billion dollars and give it to him.
• 19:02
  It keeps his balance good.
• 19:04
  So the checks and balances are working, aren't they?
• 19:06
  As Trump proves most Felons are not sentenced to prison.
• 19:10
  First time felons are usually delayed or flexible sentence could be imposed on a presidency.
• 19:15
  So the presidency isn't disrupted even if he was sent to prison.
• 19:19
  You wrote in your book, moreover, a brazen president theoretically could run the country from his jail cell.
• 19:25
  He's under White House arrest, isn't he?
• 19:27
  The other thing about the Constitution is there is immunity built in to Article 1 of the Constitution specifies that senators and representatives in all cases except treason, felony and breach of peace are privileged from arrest during their attendance
• 19:43
  at the session of their respective houses.
• 19:45
  But in Article 2, which covers the presidency, the Constitution is silent about immunity.
• 19:53
  Yeah.
• 19:53
  And the recent Supreme Court decision in Trump versus United States was.
• 19:59
  I think it surprised a lot of people, but it was the one thing that's happened since I wrote that book that if I could write it all over again, I would have to really rethink how I argued things.
• 20:12
  Because what I said at the time, which at the time was true, was people have been talking about presidential immunity almost from the founding of the Republic in the 1790s.
• 20:23
  And they were debating these same questions.
• 20:25
  Can you prosecute the president while he's in office?
• 20:28
  Some people said yes, some people said no.
• 20:31
  Some people reasoned by analogy to the Article 1 immunity for Congress that you mentioned.
• 20:36
  Other people made unitary executive arguments.
• 20:39
  But the one thing everyone agreed on was once he's gone, then you can prosecute him for things that he's done while in office.
• 20:48
  And the Supreme Court in this Trump versus United States decision.
• 20:53
  So not so fast.
• 20:54
  That might have been what everyone thought, but everyone was wrong.
• 20:56
  There's this much broader immunity from criminal prosecution that he enjoys for the rest of his life that he did while in office.
• 21:05
  You wrote that the founders, in 1787, the Constitutional Convention discussed presidential privileges and immunities, but there was no consensus and nothing in the final draft of the Constitution about it.
• 21:17
  And that left two possibilities.
• 21:18
  Either presidents have no immunity because the Constitution does not explicitly give them any, or presidents have immunity.
• 21:24
  That literally goes without saying.
• 21:26
  So it's a completely open issue.
• 21:27
  I believe the president has immunity because he drinks bleach.
• 21:31
  You're listening to Phil and Ted's Sexy Boomer Show.
• 21:34
  And our guest today is Professor Brian Kalt of Michigan State University, who is an expert on the Constitution of the United States.
• 21:42
  Yalie, like me, is that right?
• 21:44
  Brian, you went to for law school.
• 21:47
  Anyway, I'm a proud University of Michigan alum as an undergrad.
• 21:53
  Good.
• 21:54
  You were in New Haven.
• 21:55
  And you, I assume, ate at Pepe's and that's all that really matters.
• 21:59
  Yes.
• 21:59
  Or Maury.
• 22:00
  I never set foot in Sally's, only Pepe's.
• 22:03
  Sally's had canned clams, not fresh, in case you don't know what you're talking about.
• 22:08
  What we're talking about, it's the best pizza in the world is in New Haven on Worcester Street.
• 22:13
  And there's always been an argument between Sally's and Pepys, and there are different schools.
• 22:17
  Okay?
• 22:18
  So we're talking about the Constitution's ability to reel in a rogue president.
• 22:24
  And another one that Trump likes to use is pardoning.
• 22:29
  And in your book, you also wrote, and your book, it's very interesting, Constitutional Cliffhangers, A Legal Guide for presidents and their enemies.
• 22:38
  You asked the question, can a president commit a crime and then pardon himself for it, avoiding prosecution and punishment?
• 22:44
  America can probably only find out the hard way after a politically charged prosecution, a constitutional brouhaha, and a controversial Supreme Court decision.
• 22:54
  You wrote that in 2012 and boy, has that all been tested.
• 22:58
  But shortly before President Nixon resigned, you wrote that his lawyer advised him that he could pardon himself.
• 23:05
  The Nixon considered doing that.
• 23:08
  Pardons.
• 23:08
  Pardons come from the English royal counterpart.
• 23:12
  English monarchs had the power to pardon this going back to the 10th century or even earlier.
• 23:19
  The royal pardon was absolute and self pardons were never issued in England because the king could do no wrong, so he never needed to pardon himself.
• 23:28
  Parliament occasionally deposed kings, but self pardons were obviously irrelevant then too.
• 23:34
  And you wrote only a desperate president would pardon himself.
• 23:38
  But the law is unclear enough that given his desperation, it may be worth a try.
• 23:44
  So what can be done to prevent this constitutional cliffhanger?
• 23:49
  That's the question I get asked a lot whenever Trump mentions it.
• 23:53
  He firmly believes that he has the power to pardon himself.
• 23:56
  So people say, can the president pardon himself?
• 23:58
  And my answer is he can try.
• 24:00
  It's not clear.
• 24:02
  If the Supreme Court agrees that a self pardon is valid, then it's valid and he could do it.
• 24:11
  Now, there are some limits around that.
• 24:14
  If a president abuses the pardon power or any other power, there is the possibility of impeachment and removal.
• 24:22
  We've seen that's a tall order.
• 24:24
  And the polarized times that we live in, there is also the possibility that there could be state charges.
• 24:33
  The presidential pardon can only reach federal charges.
• 24:37
  We saw that in the Colorado example this last couple of weeks where he pardoned an election official who had created fraud in Colorado.
• 24:46
  And he can only do that ceremoniously.
• 24:48
  And then of course, the interference case in Georgia.
• 24:52
  But Georgia dropped that case against Trump.
• 24:54
  That was disappointing.
• 24:57
  And this sort of meshes with the question of whether a sitting president can be prosecuted.
• 25:02
  If he hadn't won the election, that case might have gone forward.
• 25:06
  But by winning the election, he made that go away.
• 25:09
  He could run out the clock, arguably immune.
• 25:13
  Well, at least temporarily.
• 25:15
  But then the statute of limitations is only so long.
• 25:19
  There's also one other possibility, even if self pardons are valid.
• 25:25
  Is that so?
• 25:26
  By analogy, let's say I write the president a check for a million dollars in exchange for pardon.
• 25:32
  That's bribery.
• 25:34
  Bribery is a crime.
• 25:36
  He could pardon himself.
• 25:38
  He could pardon whoever he wants in exchange for a bribe.
• 25:42
  The pardon would be valid, most likely, but the bribe itself would be a crime.
• 25:50
  And so if he pardoned himself as part of some larger criminal enterprise, and I'm talking about any president here, I'm not saying anything about Trump in particular, but if a president pardoned himself as part of a larger criminal
• 26:03
  enterprise, then that would itself be a crime.
• 26:07
  And you can only pardon yourself for things you've already done.
• 26:11
  So every time that he did this, it would be a new crime and eventually he would leave office.
• 26:17
  So there is that possible limit on a self pardon.
• 26:21
  But I think the best limit on the self pardon is that the courts could, and I would argue should.
• 26:26
  I first wrote about this in the 1990s that they should rule in such a case that presidents can't pardon themselves because the.
• 26:36
  It doesn't make any sense.
• 26:37
  A pardon is inherently something you give to someone else, like a.
• 26:42
  It's from the same Latin root as the word donation.
• 26:45
  You can't donate something to yourself or condone.
• 26:48
  Trump does it all the time.
• 26:49
  He speaks to him about himself in third person.
• 26:53
  And I don't know if the Supreme Court would be okay with that if they weren't.
• 26:57
  That's the argument they would use.
• 26:59
  There's also a notion that you can't be the judge in your own case, you can't be the prosecutor in your own case, you can't be the juror in your own trial.
• 27:07
  So by the same token, maybe if you want a pardon, you have to get it from someone else.
• 27:13
  Again, there are arguments on both sides.
• 27:14
  That's why I had a chapter in the book about it, because there are no clear answers and no good way to settle this until and unless an actual case comes up, which be better if it didn't.
• 27:25
  But this is really interesting to learn how ambiguous the Constitution is.
• 27:30
  Sadly not.
• 27:31
  And explains a lot of the lack of enforcement that We've witnessed, to our chagrin, two areas we want to cover before we run out of time here.
• 27:40
  The 25th Amendment, which is the removal of a president and the potential of a third term.
• 27:46
  So let's talk about the removing of a disabled president.
• 27:49
  I don't know if it's prophetic or not, but I just see Trump's being found face down in a bucket at kfc.
• 27:56
  What happens in that situation?
• 27:58
  I don't think we even need to be that dramatic.
• 28:00
  He's clearly showing a decompensation in his acuity.
• 28:06
  And what does that mean?
• 28:07
  That's too much for me.
• 28:09
  He's just going wacko.
• 28:10
  He's just.
• 28:11
  I think he has onset dementia.
• 28:13
  That's just my opinion.
• 28:15
  So let's say this president becomes a danger to himself.
• 28:18
  Like we all talk about people with dementia and others.
• 28:22
  And especially others.
• 28:23
  Yeah.
• 28:24
  In his case, particularly others.
• 28:26
  As you point out in your book, the problem with succession.
• 28:30
  And it isn't as clear as everybody thinks it is.
• 28:32
  As we all learned in school, it's not necessarily the president, the VP and the speaker of the House.
• 28:37
  Speaker of the House could be the Secretary of State.
• 28:39
  There's an issue with the military.
• 28:42
  If the commander in chief is replaced and there is a dispute, you can't have two commanders in chief because the military doesn't know what to do.
• 28:52
  It puts the military in an intolerable situation of choosing sides of who's really the president.
• 28:59
  And as you wrote, the military could be divided and choose both sides.
• 29:04
  So there's really no good answer here.
• 29:06
  Just more incentive to prevent these cliffhangers.
• 29:09
  Exactly.
• 29:10
  The Constitution, the succession provisions, they have one job, and that is to make it 100%, crystal clear at any given moment who is the president or acting president.
• 29:22
  And any question about who's in charge is potentially disastrous.
• 29:29
  Yeah, there's that problem.
• 29:30
  And I.
• 29:31
  I wrote a more recent book, 2019, on the 25th Amendment, Section 4, called Unable.
• 29:39
  And that was not just about Trump.
• 29:42
  I mean, you know, Biden raises a lot of questions.
• 29:46
  Reagan did this is this.
• 29:48
  None of this is anything new.
• 29:50
  The problem with the 25th Amendment is it's supposed to be for two separate and opposite things.
• 29:58
  One is, if it's 100%, crystal clear to everyone that the president is incapacitated, section 4 makes procedure where we can have people declare that right.
• 30:12
  The President, Section three, he says, oh, I have a colonoscopy.
• 30:16
  I'm going to be sedated.
• 30:17
  I'm handing over power temporarily.
• 30:19
  We've done that multiple times before.
• 30:21
  But Section four is for when the President can't.
• 30:24
  If he is unconscious, it gives us a mechanism to immediately transfer power temporarily to the Vice President.
• 30:32
  And then when the President gets better, there's a process for him to.
• 30:35
  To take power back.
• 30:38
  And the opposite though, is if the President is not unconscious, the President doesn't think that he's disabled and other people do, then we have a process for transferring power even in that situation.
• 30:52
  But in that situation, the process is set up in a way that protects the President and makes it very difficult to take power away from, from him on any sustained basis.
• 31:03
  You might be able to do it temporarily, but it stacks the process, stacks the deck intentionally in favor of the President taking that power back.
• 31:11
  And so that's why I don't think the 25th Amendment is a realistic proposition.
• 31:17
  You need a majority of the Cabinet, you need the Vice President, and if the President contests it, you need 2/3 of the house and 2/3 of the Senate.
• 31:26
  All of the them have to agree that the President is wrong, that he's not okay, that he can't execute his powers and duties.
• 31:34
  So it's not a quick flip of the switch.
• 31:37
  It is in that if a majority of the Cabinet and the VP say that he's incapacitated, then the VP gets power.
• 31:46
  But when the President comes back and says, no, I'm okay, unless the Cabinet, the Vice President, 2/3 of the House, 2/3 of the Senate, unless they agree that he's not okay, he does get that power back, and then
• 32:02
  presumably fires everyone in the Cabinet who voted against him.
• 32:06
  So I guess taking a nap doesn't constitute a proper term to impeach.
• 32:12
  Could they invoke the 25th while he's sleeping in?
• 32:14
  I'm wondering when he nods off.
• 32:16
  Yeah, just briefly.
• 32:17
  But seriously, at this point, point is illustrated that it's not easy on paper.
• 32:21
  Because in 1981, when Reagan was shot, the administration was at least demonstrated that it was in chaos, it was unprepared.
• 32:30
  It was a scary moment because we had.
• 32:32
  Carter had just left office with 21% interest rates.
• 32:35
  We were looking at this as a new start.
• 32:37
  Morning in America.
• 32:38
  And then he gets shot down.
• 32:40
  And then things were very chaotic in the White House.
• 32:43
  Who could forget Secretary of State Al Haig, General Al Haig.
• 32:47
  I am in control here at the White House.
• 32:49
  Remember that?
• 32:50
  And so since then, Reagan's White House counsel subsequently prepared a formal disability plan, something that all administrations since have used.
• 33:01
  But as you wrote, nothing is guaranteed.
• 33:04
  What we saw with the Reagan getting shot episode was Even though we have this procedure, he was clearly incapacitated.
• 33:11
  He was under general anesthesia during his surgery, and for days afterwards, he was not able to do the job.
• 33:19
  But they didn't want to show weakness in front of the Russians right in the middle of the Cold War.
• 33:26
  And Reagan was old, and there's this narrative about him being too old.
• 33:29
  So they wanted to project strength.
• 33:31
  And so they should have invoked Section four, or he should have invoked Section three and handed over power temporarily.
• 33:38
  Temporarily.
• 33:38
  But they didn't.
• 33:40
  And there's a long history of covering up presidential illnesses and disability and strokes and deterioration.
• 33:51
  And the 25th Amendment helped, but it didn't solve all of those sort of inherent problems, political problems of presidents not wanting to appear weak.
• 34:03
  And the 25th Amendment, again, is.
• 34:06
  It's designed to protect the President, and it's not a way to make an end run around impeachment.
• 34:13
  You need more support in Congress than you would for an impeachment.
• 34:18
  So it really does have to be one of those situations where everyone agrees, even the President's own people, his most loyal people, agree that he's out of commission.
• 34:29
  We want to get to the third term question, but can you answer one question about the line of succession controversy, that we think that the speaker of the House is third in line, but that's not necessarily written in
• 34:40
  stone.
• 34:41
  Can you give us a quick answer on that one?
• 34:43
  So the Constitution doesn't specify the line of succession.
• 34:47
  It just says Congress can make a statute specifying the line of succession.
• 34:51
  And they have for hundreds of years debated whether people like the speaker who are in Congress are eligible to be in the line of succession.
• 35:00
  Because the Constitution says only officers of the United States.
• 35:04
  Doesn't say of the United States, but officers can be in line of succession.
• 35:09
  And so there have been three different line of succession statutes.
• 35:13
  They've been debating this constitutional question.
• 35:16
  So here's the constitutional cliffhanger.
• 35:19
  Something happens to the President, something happens to the vice President, and both of them, before we go, can get a new vice President.
• 35:25
  The speaker of the House is from the other party, not now, but maybe in the future.
• 35:30
  Speaker of the House comes in and says, I guess I'm the President now.
• 35:33
  And all of these constitutional arguments that have been hanging around all of a sudden come up back up again.
• 35:41
  And the Secretary of State says, no, you're not the acting president.
• 35:44
  That would be unconstitutional.
• 35:46
  I'm the acting president.
• 35:48
  And so you have Hakeem Jeffries.
• 35:50
  If the Democrats take the House back, versus Marco Rubio, both claiming to be President and again, the Constitution, you had one job Constitution.
• 35:59
  It would be better if the speaker was not in the line of succession.
• 36:02
  We should have the President's own people populating line of succession.
• 36:06
  But that's not the statute we have right now.
• 36:09
  So there is that possibility of hopefully not civil war, but certainly a very deep rift and a question over who's in charge.
• 36:18
  Our Constitution is a mess.
• 36:19
  It really is.
• 36:20
  Who knew?
• 36:21
  Okay, so finally, let's talk about this.
• 36:24
  As many people would regard a threat that Trump will run for a third term.
• 36:28
  And he's even said that he likes to tease people with that.
• 36:31
  I don't know how serious he is about anything, but particularly that.
• 36:34
  But again, this is nothing new.
• 36:38
  Few presidents, Ulysses Grant, Theodore Roosevelt tried to win third terms but failed.
• 36:43
  Roosevelt wanted a third term.
• 36:45
  His comfortable margin of victory meant that the two term tradition was officially dead.
• 36:49
  As you wrote in 1944, he easily won a fourth term and died in 1945.
• 36:55
  And then the Republicans retook the House and Senate in the next congressional election.
• 36:59
  And in 1947, on their first day in power, Republican leaders introduced the 22nd Amendment, that is to limit presidents to two terms.
• 37:08
  But it's not necessarily cast in stone, is it?
• 37:12
  There's a problem with the way they drafted it and we all learned in school, it says president can only serve two terms.
• 37:19
  The problem is the way they wrote it.
• 37:21
  They had originally written it to say, once you've had your two terms, you can't be president, you can't act as president, you can't hold the office of President, you can't do anything.
• 37:33
  But then some senator said, it's too complicated, let's just use simpler language.
• 37:39
  And they change it to say, you can't be elected president more than twice.
• 37:44
  And so the argument, which is not new, people have been raising this possibility from the get go is you can't be elected again once you've been elected twice.
• 37:55
  But that doesn't mean you can't become president.
• 37:58
  Getting elected isn't the only way to become, become president.
• 38:00
  You can also get in through the line of succession.
• 38:02
  You could be vice president, you could be speaker of the House.
• 38:06
  Anytime there are term limits, they, they come under these kinds of pressure.
• 38:10
  If there's a loophole, people will exploit it.
• 38:13
  Sometimes they just ignore them entirely and just do whatever they want.
• 38:16
  There's someone to stop them.
• 38:18
  It's another one of these situations where if the President has enough support for a particular interpretation, interpretation of the Constitution, he could try again.
• 38:29
  I don't, personally, I don't think that he's serious about it.
• 38:33
  I think that he's trolling.
• 38:35
  I think he's trying to fend off the lame duck talk.
• 38:38
  But he could try and do something like what Putin did, where he stayed in the background and came back into power, or he could run for vice president.
• 38:48
  Now, the 12th Amendment says you can't be vice president.
• 38:52
  The qualifications for vice president are the same as for president.
• 38:55
  But that just leads us back to the original question.
• 38:58
  Can you be president?
• 38:59
  Maybe you can't be elected, but you could still be president.
• 39:02
  If that's the case, the argument would go, you can still be vice president.
• 39:07
  Personally, I don't interpret the 22nd Amendment that way, but it doesn't matter what I think.
• 39:13
  The point is that there's a plausible argument out there that people made long term before Trump came onto the scene that politically motivated people could latch onto and use to potentially keep the president in office.
• 39:28
  And there's some other wrinkles there that we probably don't have time to get into.
• 39:31
  But I've written about at length.
• 39:33
  One of the nice positive things you write in your book is that it would take a very popular president to override the system and become a third term.
• 39:40
  And that's one thing he's not is popular.
• 39:43
  And again, it's not president.
• 39:44
  You wrote that when George Wallace was elected governor of Alabama in 1962, the state constitution barred him from seeking a second consecutive term.
• 39:53
  After failing to amend the state constitution in time, Wallace had his wife Lurleen get elected in his stead.
• 39:59
  The Wallace has made it clear to the voters that George would continue to run things, and he essentially did until Lurleen died of cancer midterm.
• 40:08
  So, yeah, this is something that is a tool that has been used or abused by political leaders in the past.
• 40:14
  They're political tools.
• 40:15
  It's been really interesting to know what the limitations of the Constitution are, but it really comes down to leadership and character, which is one of our biggest problems right now.
• 40:25
  You wrote presidents have tremendous power over the people.
• 40:28
  They control the country's biggest bully pulpit, and boy, do we have a bully.
• 40:32
  And they control the increasingly pervasive power of the federal government over people's lives.
• 40:38
  They nobody is in a better position to whip the public into a frenzy, to inspire mobs to form and to move them into action all over the country than the president.
• 40:49
  Hey, January, that was.
• 40:51
  You wrote that in 2012.
• 40:52
  And boy, that unfortunately was very prescient, wasn't it?
• 40:55
  Wow.
• 40:57
  I joke that I should have written a book about the legal ramifications of me winning the lottery.
• 41:04
  Thank you so much.
• 41:05
  Our guest is Professor Brian Kalt of Michigan State University, a constitutional expert.
• 41:10
  We really appreciate you talking with us today.
• 41:12
  We'll see what happens.
• 41:14
  Obviously, it's a work in progress.
• 41:16
  The Constitution.
• 41:17
  I'll tell you, I enjoy being on this show just because I learned so much.
• 41:21
  Yeah, it's good.
• 41:22
  Thank you, Brian and Phil, we got a lot of great shows coming up.
• 41:26
  Good to see you.
• 41:27
  I may be remote, but I'll be present it.
• 41:29
  Fair enough.
• 41:30
  Sexy Boomer show.
• 41:31
  You can hear all of our shows at our website, SexyBoomer Show.com.
• 41:36
  Have a great week.
• 41:37
  Have a great year.
• 41:38
  Keep us on the air.
• 41:39
  Love you.