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Trump’s Presidency for Sale? · The Oath and The Office

0:10
Speaker 1: Welcome to another episode of The Oath in the Office podcast,
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Speaker 1: coming to you live from the United States of America,
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Speaker 1: where we lead the world in presidents who hide in
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Speaker 1: the back of food cards. Some John Fugel sang along
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Speaker 1: with the star of the show, the author of the
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Speaker 1: Oath in the Office and the Presidents and the People.
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Speaker 1: If you needed a good reason to go study the
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Speaker 1: Constitution in Ivy League Universities, it's this man, Corey Brettchneider.
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Speaker 1: Good to see you, sir.
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Speaker 2: Thanks so much, John. I'm looking forward to the discussion. It's,
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Speaker 2: you know, depressing stuff that we're talking about, but talking
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Speaker 2: to you somehow makes it uplifting. At the same time,
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Speaker 2: we find the hope in all of it. And you know,
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Speaker 2: one thing that's been on my mind since we've started
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Speaker 2: the podcast is how much of the story is just
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Speaker 2: about Trump and how much of it is about him
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Speaker 2: spreading his corruption more widely. There's an idea in particular
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Speaker 2: that a lot of political scientists are interesting it in,
1:00
Speaker 2: and I'll mention actually the law professor Azi's Hook has
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Speaker 2: been writing about this, trying to look at the ideas
1:06
Speaker 2: of a Nazi era dissident who had an idea called
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Speaker 2: the dual state, and the idea of the dual state
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Speaker 2: was look, Hitler has basically declared himself above the law,
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Speaker 2: but there still is the apparatus of law operating in
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Speaker 2: the background for everyone else. And so one of the
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Speaker 2: questions of our own time is is this something that's
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Speaker 2: just about Trump or is the corruption going to spread?
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Speaker 2: And as much as he remains the center of the story,
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Speaker 2: I think some of the things that we'll talk about
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Speaker 2: today are about the corruption spreading beyond him and beyond
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Speaker 2: even his family.
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Speaker 1: I mean, I think, you know, the stories we're going
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Speaker 1: to cover today really speak to me to this subject
1:44
Speaker 1: we've covered before. What happens when a president keeps treating
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Speaker 1: the powers and information of the presidency as his personal
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Speaker 1: property rather than a public power. And I think the
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Speaker 1: first story is the most constitutionally fascinating, and that is
1:58
Speaker 1: that Trump's media and technology group is launched this truth Api,
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Speaker 1: which is a service that costs about one hundred thousand
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Speaker 1: dollars a month for all you MAGA voters out there,
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Speaker 1: so you can get early access to posts from prominent
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Speaker 1: truth social accounts, including trumps Now, the Intercept, and the
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Speaker 1: Freedom of the Press Foundation.
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Speaker 3: Professor have sued, and they're.
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Speaker 1: Arguing that this whole setup really monetizes access to presidential
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Speaker 1: communications for a privileged view. Reuter says, the plaintiffs are
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Speaker 1: contending the service could give paying subscribers an advantage when
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Speaker 1: Trump's posts move financial markets, which to me sounds like
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Speaker 1: they're admitting this is for rich douchebags manipulating the stock market.
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Speaker 1: But what is your immediate constitutional reaction search to the
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Speaker 1: idea that sitting president's communications can effectively be put behind
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Speaker 1: one hundred thousand dollars a month pay Well.
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Speaker 2: Wow, it is a wild idea that you would charge
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Speaker 2: journalists for access to the president, something that it says
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Speaker 2: if you're monetizing the bully pulpit, and then at the
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Speaker 2: same time use the same technique in order to basically
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Speaker 2: allow people into the orbit of those who look like
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Speaker 2: they've already been engaging in insider trading. We've talked before
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Speaker 2: on this show about the fact that there's an account
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Speaker 2: that hasn't been identified, but it seems to almost perfectly
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Speaker 2: match notifications about the news of whether or not there's
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Speaker 2: a ceasefire in the war in Iran and manipulating and
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Speaker 2: betting to short oil markets. In order to benefit from
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Speaker 2: the seasfire, betting exactly that oil will will again going
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Speaker 2: down in price when a ceasefire has been declared. That
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Speaker 2: looks like it's either Trump or his family or somebody
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Speaker 2: connected to him who has access to this instant information.
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Speaker 2: So as the criticism comes, I guess he realized, Wow,
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Speaker 2: I could monetize this. I don't just have to limit
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Speaker 2: it to my accounts. We could give people early access.
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Speaker 2: And it looks like a scheme to basically allow for
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Speaker 2: you know, paid inside information in order to manipulate the markets.
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Speaker 1: And then also, not Donald Trump, professor, not Donald Trump.
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Speaker 1: I mean, suppose he posts like a twenty five percent
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Speaker 1: tariff on X tomorrow and then a hedge fund paying
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Speaker 1: one hundred grand a month gets that information a few
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Speaker 1: milliseconds or a few seconds before everybody else does. Is
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Speaker 1: there a constitutional issue with converting presidential information into a
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Speaker 1: private financial advantage for a select few citizens.
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Speaker 2: Well, I mean, I think we could talk about it
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Speaker 2: on two levels. One is certainly in terms of when
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Speaker 2: you think about Article two and the oath of office.
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Speaker 2: The point of the podcast, the job is to preserve, protect,
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Speaker 2: and defend the constitution of the United States, not to
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Speaker 2: turn the office into personal profit. And we've talked often
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Speaker 2: about the emolument's clauses. The idea that you can't use
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Speaker 2: the office for profit did twice in the Constitution, a
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Speaker 2: domestic emoluments clause and an international one. George Washington talked
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Speaker 2: about the emolument's clause and pledged to take no emoluments
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Speaker 2: in his first inaugural address to not profit from the office.
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Speaker 2: This is the extreme. I mean, this is wild idea
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Speaker 2: to which this is actually truly monetizing the office, both
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Speaker 2: to journalists but again to these insider traders, and I
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Speaker 2: guess I think too it is trying to create a
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Speaker 2: sort of space of people who are above the law,
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Speaker 2: who really don't pay by the other rules of others,
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Speaker 2: because the idea is, well, you can trade this information
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Speaker 2: if you buy access to it. Whether or not it's
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Speaker 2: illegal or not. It probably isn't because he's giving enough
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Speaker 2: access to the information that it isn't truly trading on
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Speaker 2: private information. So it's not that these people are necessarily
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Speaker 2: going to be prosecuted. Trump himself, of course has immunity,
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Speaker 2: although it's only supposed to be for official acts, and
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Speaker 2: this strikes me as the definition of an unofficial act.
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Speaker 2: Part of what's incentivizing him to do all this is
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Speaker 2: he thinks and believes that he'll never be prosecuted for it.
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Speaker 2: And unfortunately that might be right.
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Speaker 1: I mean, let's point out that in the last ten years,
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Speaker 1: no Congress and no Justice Department, and not the Biden administration,
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Speaker 1: the Trump administrations have ever cared about the Emolument's clause.
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Speaker 1: I mean, no one cares, Cory, right, Like, we could
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Speaker 1: have impeached Trump for this one minute into his first
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Speaker 1: inaugural address. No one's going to go after him. We've
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Speaker 1: just decided Nope, he can do it. But to me,
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Speaker 1: it's like this lawsuit saying that the presidential communications are
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Speaker 1: getting monetized through a private company where the president himself
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Speaker 1: owns a substantial stake. So isn't the constitutional problem stronger
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Speaker 1: because Trump's not just making money from an ordinary private business,
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Speaker 1: which would be a violation of the emolument's clause, but
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Speaker 1: potentially making money from information generated by the Office of
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Speaker 1: the Presidency itself.
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Speaker 2: Taste to this, you know, and then also basically spreading
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Speaker 2: the corruption throughout this group of people who are going
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Speaker 2: to buy in. And so yes, it strikes me as
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Speaker 2: an extreme of something that should be illegal under laws
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Speaker 2: that would operationalize, that would make real the emolument's clause.
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Speaker 2: I mean, let me just say what I mean by that,
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Speaker 2: because that's a confusing statement. So we have these two
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Speaker 2: emolument's clauses, and you might think he can't do that.
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Speaker 2: Let's prosecute him. First of all, who's going to prosecute him.
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Speaker 2: That's part of the problem. That is all about the
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Speaker 2: closing prosecutors. But there's a deeper problem, and we've talked
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Speaker 2: about this before in the podcast, but here it's really
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Speaker 2: becoming salient that those emolument's clauses don't have obvious pieces
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Speaker 2: of law legislation passed by Congress that turn them into
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Speaker 2: criminal laws that could be used to prosecute a president.
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Speaker 2: And that is a failure of the Congress to not
7:35
Speaker 2: pass emoluments legislation. Now, it's not that, you know, I'm
7:39
Speaker 2: always trying to lean into optimism at the same time
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Speaker 2: that I want to tell the truth about what's going
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Speaker 2: on here. And the optimism is that there are bills
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Speaker 2: that have been introduced to Congress to do exactly this.
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Speaker 2: They haven't been acted on yet, and they won't be
7:53
Speaker 2: acted on until we have a Democratic Congress. But I
7:56
Speaker 2: do believe that if Democrats take the House, these bills
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Speaker 2: will move to the floor and we'll get a vote
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Speaker 2: on them. And you know, let Republicans vote against the
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Speaker 2: bill that says you can't profit from the office, against
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Speaker 2: the emolument's clause. I'm not sure that once we're at
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Speaker 2: that point they'll be willing to do that.
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Speaker 1: They will the other They know Fox News won't cover it.
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Speaker 1: They know Fox News won't cover it, so the pokes
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Speaker 1: at home will never know.
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Speaker 2: Corey maybe, But if Democrats control the House, my point
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Speaker 2: is that they won't need the Republican votes or many
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Speaker 2: of them. You know, they'll be able to get them
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Speaker 2: through at least through the House. The Senate. You know, well,
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Speaker 2: we're waiting to see two. There is a chance that
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Speaker 2: Democrats will take the Senate, and if they do, you know,
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Speaker 2: we'll have the votes to at least pass it. Now,
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Speaker 2: you know, that becomes interesting politics too when Trump veto's it.
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Speaker 2: Now we have an override vote. It's very hard to
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Speaker 2: override a veto, but it is of course possible, and
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Speaker 2: once that override vote happens, maybe there will be the
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Speaker 2: votes to override, and maybe they'll be weak enough.
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Speaker 1: That's the only way. I mean, like, I'm stuck on
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Speaker 1: this cory. If a president can monetize access to their
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Speaker 1: official White House communications, what stops this presidency from just
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Speaker 1: becoming a subscription service for oligarchs?
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Speaker 2: Right?
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Speaker 1: I mean, could a court actually order the president to
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Speaker 1: change the way he communicates?
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Speaker 3: Could that happen?
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Speaker 2: Oh? I think you could make it. You know, just
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Speaker 2: because something is communication doesn't mean that it's necessarily protected.
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Speaker 2: Free speech for protected by a president. So if I
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Speaker 2: order a I'm not going to do this. Let's take
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Speaker 2: a hypothetical person orders a murder over the phone that speech,
9:25
Speaker 2: but it's obviously illegal. Well, you could criminalize certain forms
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Speaker 2: of corruption, including selling the office for profit, and that's
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Speaker 2: what this legislation would do. The other thing I don't
9:36
Speaker 2: want to lose sight of. And you know, this is
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Speaker 2: the optimism again. If Democrats take the House, I'll just
9:42
Speaker 2: remind listeners the way impeachment works. And this would be
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Speaker 2: the third. We've only had four impeachments voted up by
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Speaker 2: the House. We've never removed to president. Two of them
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Speaker 2: were Donald Trump, one for the Zelenskik demand for dirt
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Speaker 2: on Joe Biden and his son in exchange for basically
9:59
Speaker 2: r and funding to Ukraine to Zelenski. That was the first,
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Speaker 2: the second January sixth, extremely paradigm. I think of what
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Speaker 2: impeachment is supposed to be about, and this would be
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Speaker 2: the third, and you just need a majority of Democrats
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Speaker 2: to do it. And I would put a monument's violations
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Speaker 2: exactly these cases and this idea. I love how you
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Speaker 2: said it, John, I don't want people to miss it.
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Speaker 2: A subscription service to the presidents that is almost the
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Speaker 2: definition of a monument's violation. So you know, legislation, it
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Speaker 2: gives us the need when you see the crimes and
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Speaker 2: you think this isn't illegal, how could that be? That
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Speaker 2: calls out for a vote on this kind of legislation.
10:38
Speaker 2: And then also absolutely top of the list impeachment for
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Speaker 2: molument's violations. And just to be clear too, sorry, sorry
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Speaker 2: I'm getting a little long.
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Speaker 3: Please please please know, but.
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Speaker 2: Just because we don't have criminal laws yet that make
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Speaker 2: this illegal doesn't mean it's not a high crime and misdemeanor.
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Speaker 2: You don't need a crime in order to have an
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Speaker 2: impeachable offense. You need basically action that undermine the office,
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Speaker 2: that are an assault on democracy. And this is a
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Speaker 2: paradigm of what that means.
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Speaker 1: Yeah, I mean he's profiting off the office. And let
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Speaker 1: me just I'll get off this. I just have one
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Speaker 1: last question on it. Does the Constitution recognize any kind
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Speaker 1: of real distinction between Donald Trump the corrupt, a moral
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Speaker 1: private businessman and Donald Trump the corrupt, a moral president.
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Speaker 2: You know that we can talk about what should be
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Speaker 2: the case and then what is and increasingly the you know,
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Speaker 2: the way that the unitary executive theory has unfolded is
11:35
Speaker 2: it has you know, I think the people who defend
11:38
Speaker 2: that theory, any constitutional scholar, will say, of course, the
11:41
Speaker 2: president has certain obligations. In fact, when you look at
11:44
Speaker 2: Article two that creates the presidency, it's filled with duties
11:48
Speaker 2: you have to pledge to preserve, protect, and defend the constitution.
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Speaker 2: You have the Article two requires a president to take
11:55
Speaker 2: care that the laws be faithfully executed. And in my mind,
11:59
Speaker 2: there would be legislation, criminal laws that say if you
12:02
Speaker 2: violate those duties, or if you attack democracy, you could
12:06
Speaker 2: be subject to not just impeachment, but to prosecution. But
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Speaker 2: this Supreme Court has just done so much to enable
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Speaker 2: a president who you know, they claim they're thinking about
12:16
Speaker 2: Ronald Reagan, but when they're dealing with the president who's
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Speaker 2: using this powerful office to commit crimes and make money,
12:23
Speaker 2: they've just undone so much of what we would need
12:26
Speaker 2: to do. And front and center, of course, is that
12:29
Speaker 2: horrible immunity case that a president can't be prosecuted at
12:33
Speaker 2: least for official duties.
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Speaker 1: They want a King, Corey. They just they want a
12:36
Speaker 1: king who's not held back by your woke laws. And
12:39
Speaker 1: can we weigh deeper until the corrupted professor? Because the
12:42
Speaker 1: swamp is getting nastier in many ways. It seems to
12:46
Speaker 1: be like the new corruption is just not going after
12:49
Speaker 1: existing corruption, and the government's willingness to investigate corruption itself
12:56
Speaker 1: is now on the chopping block. So Donald Trump put
12:59
Speaker 1: out an executive order in February of last year that
13:02
Speaker 1: directed the DOJ to stop any new investigations under the
13:07
Speaker 1: Foreign Corrupt Practices Act while the White House was reviewing
13:11
Speaker 1: their enforcement policy. I mean, I know, with all the
13:14
Speaker 1: illegal wars and murdering Americans in the streets, this got overlooked.
13:17
Speaker 1: But the White House more or less said stop looking
13:20
Speaker 1: for corrupt practices from foreign countries. Right now. And they
13:24
Speaker 1: set it on the grounds that the FCPA enforcement would
13:27
Speaker 1: hurt American economic competitiveness and we would interfere with presidential
13:32
Speaker 1: foreign policy authority by investigating crimes committed by corrupt, a
13:37
Speaker 1: moral people the president likes more than ninety nine percent
13:39
Speaker 1: of the population. This story is a little bit complicated,
13:42
Speaker 1: which makes it a bit more hard to outrage the
13:45
Speaker 1: American people. But Corey, holy crap. Can a president just
13:49
Speaker 1: tell the DOJ to stop enforcing a federal criminal statute
13:54
Speaker 1: that Congress enacted? Can a president just say time out
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Speaker 1: on enforcing these laws?
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Speaker 2: You know? Increasingly, you know, my answer is going to
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Speaker 2: be the same. The more that you increase this idea
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Speaker 2: of the unitary executive and say that there aren't independent
14:11
Speaker 2: obligations of civil servants to protect a law apart from
14:15
Speaker 2: whatever president says, yes, the more control the executive branch has.
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Speaker 2: And what's amazing about this story and why I'm glad
14:22
Speaker 2: we're covering it is, you know, as Elizabeth Warren has
14:25
Speaker 2: pointed out, this is meant to create ways of these
14:29
Speaker 2: aren't public databases. They create ways for the FBI and
14:34
Speaker 2: for law enforcement to see who owns what and to
14:38
Speaker 2: look into things like money laundering, and this database that
14:43
Speaker 2: has already been collected is of enormous use to law
14:46
Speaker 2: enforcement as they investigate these crimes, international financial crimes, which
14:50
Speaker 2: are extremely complicated. People are moving money with crypto across borders,
14:55
Speaker 2: and at least this was a way of allowing these
14:58
Speaker 2: things to be tracked. And why is Trump coming in
15:02
Speaker 2: now and I'm doing My understanding is it's not just
15:06
Speaker 2: you know, future data gathering, it's that they're they're ordering
15:09
Speaker 2: the erasure of so much of the material that they
15:12
Speaker 2: already have.
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Speaker 1: You mean, you mean corruption and bribes and money laundering
15:16
Speaker 1: won't be able to be prosecuted when Trump leaves office
15:18
Speaker 1: because they've destroyed the evidence. Is that what you're suggesting, sir.
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Speaker 2: Well, that's part of what's going on. I mean, let's
15:23
Speaker 2: get to brass tax because you know Trump and this
15:27
Speaker 2: is what I was trying to say too, The corruption
15:29
Speaker 2: is spreading, not just Trump and his family, but protecting
15:32
Speaker 2: all those really who seem to be operating with black
15:35
Speaker 2: markets and crypto. And many of his supporters, of course,
15:38
Speaker 2: are from the crypto world, and there is a you know,
15:41
Speaker 2: not one hundred percent overlap, but there is some overlap
15:44
Speaker 2: of black markets and crypto, and the more that you
15:47
Speaker 2: allow who's involved in various companies, who owns what, transparency
15:52
Speaker 2: and these databases at least, you know, in issues of
15:55
Speaker 2: that allow law enforcement to investigate these very complicated financial
15:59
Speaker 2: cores across the borders. When you erase all of that,
16:02
Speaker 2: it's just hard to crack down on it. And you know,
16:04
Speaker 2: the obvious is that this is a president who essentially,
16:08
Speaker 2: you know, sees his constituents as those who support him,
16:11
Speaker 2: not just at the polls. I think that's not really
16:13
Speaker 2: what he cares about, but support him financially and support
16:16
Speaker 2: his businesses. And this is a president whose family and
16:19
Speaker 2: he have been involved so deeply in crypto that it's
16:22
Speaker 2: really not a surprise, including you know, pardoning some crypto criminals.
16:29
Speaker 1: But that's it, right, I mean, there's got to be
16:31
Speaker 1: a constitutional line between prosecutorial discretion and just a president
16:37
Speaker 1: obstructing the law. Can a president just just say I
16:40
Speaker 1: don't like this statute, so we're not going to enforce it.
16:43
Speaker 3: I mean, is that a thing?
16:45
Speaker 2: Well, you know, I'll say what's supposed to be and
16:47
Speaker 2: then I'll say what we're dealing with here, Because it's
16:49
Speaker 2: wider than just this story I mentioned, you know, Article two.
16:54
Speaker 2: Article one creates the Congress and limits it. Article two
16:57
Speaker 2: creates the presidency and limits it an Article three of
16:59
Speaker 2: the Constitution creates the Supreme Court and the possibility of
17:03
Speaker 2: lower courts. So what is Article two say about this?
17:06
Speaker 2: It actually answers your question, John directly. It says that
17:09
Speaker 2: a president is obligated here's the quote, to take care
17:13
Speaker 2: that the laws be faithfully executed. In other words, no,
17:16
Speaker 2: you're not supposed to have discretion. You're supposed to take
17:20
Speaker 2: the laws on the books and enforce them.
17:22
Speaker 3: The oath and the officer, the oath and the office.
17:25
Speaker 3: I spared it up that that's the idea.
17:27
Speaker 2: Yeah, but increasingly, you know, that's not how Todd Blanche
17:30
Speaker 2: these things, and that's not how Donald Trump see things.
17:33
Speaker 2: They they say, well, the president, you know, I should
17:35
Speaker 2: say too. I don't want to overstate it. You know,
17:37
Speaker 2: think about it, right, you know, are you going to
17:39
Speaker 2: enforce every immigration law something that you often heard Article
17:42
Speaker 2: two cited in regard to Biden. Well, obviously there's some
17:46
Speaker 2: discretion when it comes to the enforcement of laws, but
17:49
Speaker 2: that decision is supposed to be made with the public
17:52
Speaker 2: good in mind. With thinking about resources, he's thinking about
17:55
Speaker 2: something totally different, which is protecting his cronies. And what
17:59
Speaker 2: Todd blan Branch, who we've often referred to not just
18:02
Speaker 2: as the president's personal lawyer, but his personal criminal defense lawyer,
18:07
Speaker 2: does again and again and said, well, you know, I
18:09
Speaker 2: might not agree with this, but yes, as the unitary executive,
18:13
Speaker 2: you have control over law enforcement and including over what
18:17
Speaker 2: laws and prosecutions are broad. You know, at the Founding
18:21
Speaker 2: I really want to go back to the founding on this,
18:23
Speaker 2: because they're frightening how much this was an issue. The
18:28
Speaker 2: founders had options on the table. They could have taken
18:31
Speaker 2: the office of Attorney general, made it independently elected. That's
18:34
Speaker 2: what we do with New York le teacher James is
18:36
Speaker 2: independently elected. They made the decision to put the president
18:41
Speaker 2: and the Attorney general in the same branch, with of
18:43
Speaker 2: course the president at the head, and the defenders of
18:47
Speaker 2: that said, well we'll have people of virtue in wow.
18:53
Speaker 2: Anti Federals, those who opposed ratification and opposed this decision
18:57
Speaker 2: at the convention, said you know what, like what if
19:00
Speaker 2: you have a bad person, what if you have a
19:03
Speaker 2: criminal in the They predicted this even Their worry was, Wow,
19:06
Speaker 2: the Attorney General is going to get manipulated into defending crime,
19:10
Speaker 2: and that's what's happening.
19:12
Speaker 3: All right, So let me get into something else.
19:13
Speaker 2: Then.
19:13
Speaker 1: That sounds incredibly boring until you realize it as enormous implications.
19:17
Speaker 2: Please, friends, Although I heard a lot about license plates
19:20
Speaker 2: from our listeners, they did not find it boring. They
19:23
Speaker 2: loved it.
19:23
Speaker 3: It's a great story.
19:24
Speaker 1: I loved the license plate story everybody listened to the
19:26
Speaker 1: last week's show. But at this one I got to
19:28
Speaker 1: ask you to wait into the swamp with me on
19:29
Speaker 1: this story because it gets worse. And I tried to
19:32
Speaker 1: start this one off light. But the Corporate Transparency Act
19:35
Speaker 1: created these beneficial ownership reporting requirements that were supposed to
19:40
Speaker 1: make it harder for criminals to hide behind shell companies. Right,
19:43
Speaker 1: So in March of last year, the Treasury exempted US
19:47
Speaker 1: companies and US persons from those reporting requirements. So the
19:52
Speaker 1: Government Accountability Office then found that the exemption applied to
19:55
Speaker 1: more than ninety nine percent of entities previously covered, reducing
19:59
Speaker 1: the universe from roughly thirty two and a half million
20:02
Speaker 1: to about one hundred thousand. So, I mean, this is
20:04
Speaker 1: very hard to understand that why should constitutional lawyers care
20:10
Speaker 1: about corporate ownership databases?
20:13
Speaker 2: Well, you know, you look at the purpose behind legislation,
20:17
Speaker 2: and it was part of what we were talking about
20:19
Speaker 2: before transparency, that these databases give law enforcement a way
20:24
Speaker 2: of recognizing who owns what and doing the very hard work.
20:28
Speaker 2: And this is extremely hard work. Think of how easy
20:31
Speaker 2: it is now in the electronic world to mask your transactions.
20:36
Speaker 2: And I mentioned crypto, that's also part of it. And
20:38
Speaker 2: so you know, this legislation was meant to try to
20:42
Speaker 2: give law enforcement some leverage in finding out, you know,
20:46
Speaker 2: who owned what and who was doing it. And so
20:48
Speaker 2: now you know there's an attempt to undermine them.
20:51
Speaker 1: So if Congress says these corporations have to disclose who
20:54
Speaker 1: owns them, but the president says, we're not going to
20:58
Speaker 1: require ninety nine percent of them to do that, who
21:01
Speaker 1: wins the separation of powers dispute there?
21:03
Speaker 2: You know, under the current Supreme Court regime, I'd say
21:07
Speaker 2: likely the President's going to win a lot of these battles.
21:10
Speaker 2: But they speak to this wider issue I mentioned to
21:14
Speaker 2: take care clause, the obligation of the president to take
21:17
Speaker 2: care that the laws were faithfully executed. The last time
21:20
Speaker 2: that we really saw a significant debate about this was
21:24
Speaker 2: talking about impeachment was during the Nixon administration. This is
21:28
Speaker 2: not the same issue, but you see how it's related.
21:30
Speaker 2: Nixon refused to spend funds that were allocated by Congress.
21:34
Speaker 2: He just said, well, I have the discretion as president
21:36
Speaker 2: to spend or not spend, and Congress said, what about
21:39
Speaker 2: to take care clause? So when it came to the
21:42
Speaker 2: articles of impeachment, some of them really focused on this
21:46
Speaker 2: idea that these impoundment of funds were violation of the
21:51
Speaker 2: obligation of the president to take care that the laws
21:53
Speaker 2: are faithfully executed. Now, you know, Trump has done similar
21:57
Speaker 2: things with DOJE and trying to basically undue agencies created
22:02
Speaker 2: by Congress, refusing to spend money allocated to those agencies.
22:06
Speaker 2: And here I think he's doing a similar thing. Or
22:08
Speaker 2: it's not that he's gotten the legislation repealed. You know,
22:12
Speaker 2: he could do that and he could sign a law
22:13
Speaker 2: that repealed it. He's just trying to not enforce them,
22:17
Speaker 2: and so that that kind of take care clause, you know,
22:20
Speaker 2: claws out of by the wayside. The problem is that
22:23
Speaker 2: the Supreme Court has increased presidential power. So you know,
22:26
Speaker 2: what's the penalty here? There's not a criminal penalty. Would
22:30
Speaker 2: there be learn impeachment? Might? I don't even know that
22:32
Speaker 2: that would be something that would capture the mind of
22:34
Speaker 2: the American people, I would hope. So it's complicated, and
22:37
Speaker 2: that's why he's going to get away with it. I think,
22:40
Speaker 2: all right.
22:40
Speaker 3: Can I ask a couple more dumb questions about this.
22:43
Speaker 1: Congress makes the laws, the president executes the laws. Right,
22:47
Speaker 1: So can the president effectively rewrite the scope of a
22:52
Speaker 1: congressional law through his own regulation? I mean, at what
22:55
Speaker 1: point does a presidential interpretation be a presidential repeal of law?
23:00
Speaker 3: Right?
23:01
Speaker 1: Like what happens when the executive branch thinks that these
23:03
Speaker 1: roles are interchangeable and we can make the laws and
23:06
Speaker 1: execute them.
23:07
Speaker 2: Yeah. I mean, if you look at the founding idea
23:09
Speaker 2: of what take care that the laws be faithfully executed?
23:13
Speaker 2: Men and men? I think to the framers what we
23:16
Speaker 2: all learned in grade school about the three branches of government,
23:19
Speaker 2: which is that Congress passes the laws and the president
23:23
Speaker 2: carries them out or executes them. Now here's the problem.
23:26
Speaker 2: Here's the theory of the unitary executive. It says that
23:30
Speaker 2: the executive power is vested in a president, and that
23:34
Speaker 2: includes powers that go beyond just executing the laws. They
23:38
Speaker 2: include the discretion to enforce laws or not. And who
23:42
Speaker 2: is a court to say that a president's interpretation of
23:45
Speaker 2: what laws he wants to enforce, or here's another way
23:48
Speaker 2: of putting it, how he reads the obligation that Congress
23:52
Speaker 2: gave him and enforce these laws. That they start to
23:56
Speaker 2: emphasize the idea of presidential interpretation. And there is an
24:01
Speaker 2: idea that goes back to Jefferson called departmentalism that says, look,
24:04
Speaker 2: there are reasonable disagreements between what Congress thinks and what
24:08
Speaker 2: a president thinks, and what a president thinks might matter,
24:11
Speaker 2: but that's not what's going on here. What's going on
24:13
Speaker 2: is there's a clear meaning of these laws, and then
24:15
Speaker 2: there's a president who's saying, well, I have the executive
24:18
Speaker 2: power to undermine them. And that's how out of control
24:21
Speaker 2: things have gone. It's one thing to opine on what
24:24
Speaker 2: you think a law is or to give it, but
24:26
Speaker 2: to really refuse to carry them out that is really
24:29
Speaker 2: you know, this was a very elaborate explanation of what
24:32
Speaker 2: you just said, which is if the president's execution of
24:35
Speaker 2: the law's power includes the ability to just ignore them. Well, then,
24:39
Speaker 2: when what sense do we live in a democracy? We
24:41
Speaker 2: are allowing the executive president swallow up congressional power.
24:45
Speaker 1: Okay, let me go a step deeper into this corruption,
24:47
Speaker 1: then we'll get our commercial break, I promise, Wendy. Like
24:50
Speaker 1: the General Accounting Office has said, these opaque corporate structures
24:53
Speaker 1: are there to conceal identities, right, and to facilitate money
24:57
Speaker 1: laundering and other illegal activity. So the only reas and
25:00
Speaker 1: Donald Trump is doing this is to protect corrupt foreign actors,
25:04
Speaker 1: be they Russian or Saudi or god knows what if
25:07
Speaker 1: law enforcement is not allowed to identify the people behind
25:12
Speaker 1: shell companies, Corey, what happened to the government's ability to
25:15
Speaker 1: investigate organized crime? It's literally a waiver for lawbreakers.
25:21
Speaker 2: Well, he is really, you know, not just has the
25:24
Speaker 2: ambition he's doing it. He has the ambition of undermining
25:27
Speaker 2: what he thinks of as the deep state prosecutors bringing
25:31
Speaker 2: normal cases based on the fact that laws were broken.
25:34
Speaker 2: That's not what he wants. He wants control over what
25:37
Speaker 2: this department is used for and his priority we know,
25:40
Speaker 2: aside from the ballroom, which is evidently taking up a
25:43
Speaker 2: lot of his mental space prosecution prosecution of his enemies,
25:48
Speaker 2: and you know, I have to say something. There are
25:51
Speaker 2: rules about this, but I attended a meeting of a
25:54
Speaker 2: lot of former public officials from both Democratic and Republican administrations,
26:00
Speaker 2: and it did include members of the Department of Justice.
26:02
Speaker 2: I'm allowed to say that much. But there was a
26:04
Speaker 2: real interesting discussion and debate there about whether or not
26:09
Speaker 2: the whole DOJ is corrupted. And this is part of
26:12
Speaker 2: what I'm talking about with this dual state idea, or
26:14
Speaker 2: whether or not it was just a sort of small
26:16
Speaker 2: part in which he was exerting inappropriate control, but the
26:20
Speaker 2: rest of it remained fairly normal. And I think what
26:23
Speaker 2: this story shows is, no, it's not an isolated thing.
26:27
Speaker 2: He's infecting and trying to undermine the normal law enforcement
26:31
Speaker 2: function of the Department of Justice of the federal government
26:35
Speaker 2: and the normal laws that they would use in order
26:37
Speaker 2: to go about bringing cases based on well crime is
26:40
Speaker 2: being committed. That's what I think he's trying to at
26:43
Speaker 2: the same time that he reduces that enlarge his use
26:46
Speaker 2: of the Department to do things like go after his
26:49
Speaker 2: enemies and search for election fraud and to use the
26:54
Speaker 2: resources of this department in a way he couldn't in
26:57
Speaker 2: Trump wan to really control it and to under any
27:01
Speaker 2: semblance of the rule of law. If the question is,
27:03
Speaker 2: you know, does Trump coexist with the rule of law,
27:06
Speaker 2: the answer to me this story helps bring it out
27:08
Speaker 2: is clearly no, because he's really infecting the entire department.
27:12
Speaker 3: All Right, we got to take a break.
27:13
Speaker 1: I just don't understand how like the government is making
27:18
Speaker 1: its own institutions deliberately less transparent to protect foreign criminals. Right,
27:24
Speaker 1: there's no opinion there that's exactly what's happening. How can
27:27
Speaker 1: citizens meaningly hold this government accountable? Professor, if the government
27:33
Speaker 1: systematically destroys the data necessary to know what's going on.
27:38
Speaker 2: I'll sound a few notes of hope. One is, as
27:41
Speaker 2: we've often talked about, you know, the more we get
27:43
Speaker 2: these stories that they are hard to explain. You know,
27:45
Speaker 2: that's one thing. This story isn't being covered in the
27:48
Speaker 2: way that it should be. But the more you understand
27:50
Speaker 2: that he's not just going after his opponents, but he's
27:53
Speaker 2: trying to actually undermine law enforcement, the more that we
27:56
Speaker 2: could get that message out, the more it's clear that, well,
27:59
Speaker 2: we need laws that not just create ways of prosecuting criminals,
28:04
Speaker 2: but that also make it a crime to undermine those laws.
28:07
Speaker 2: And I think that, you know, that's one thing that
28:09
Speaker 2: we should start thinking about which ties all these stories together.
28:12
Speaker 2: Certainly with the emoluments legislation that I've talked about that
28:15
Speaker 2: would do it. But I also think to try to
28:18
Speaker 2: use the office in order to get you know, let's
28:21
Speaker 2: assume that some of this is going on to try
28:23
Speaker 2: to help your friends who are potentially going to be
28:27
Speaker 2: or your allies who are going to be prosecuted. We
28:30
Speaker 2: have to start to think about how to prohibit that,
28:32
Speaker 2: how to have judicial intervention to keep it from happening.
28:35
Speaker 2: And one other way to do it, which did come
28:37
Speaker 2: up in this meeting of former DLJ officials, would be
28:41
Speaker 2: to create even better protections for people from being fired,
28:44
Speaker 2: because if they knew they couldn't be fired for doing
28:47
Speaker 2: these things, I think you would have a lot more
28:49
Speaker 2: people bringing cases, standing up refusing to do the president's bidding.
28:54
Speaker 2: But you know, of course, the main thing that we
28:56
Speaker 2: need to do is to get transparency about what's going
28:58
Speaker 2: on behind these stories, who is trying to protect. Impeachment
29:01
Speaker 2: would be yet again, a really important way of doing this.
29:04
Speaker 2: If we have a democratic house, all these stories are
29:07
Speaker 2: on the table for thinking about impeachment.
29:10
Speaker 1: I agree these moderate saying you can't impeach him again.
29:12
Speaker 1: He's not going to get convicted. That's not the point.
29:14
Speaker 1: The point is when you are impeaching him and he
29:17
Speaker 1: is defending himself, he is on the defense, and it
29:20
Speaker 1: makes it harder for them to commit more crimes.
29:22
Speaker 2: And we have to get these you know, you and
29:24
Speaker 2: I can do our show, and there are shows like it.
29:26
Speaker 2: It's not getting the kind of coverage that you would
29:29
Speaker 2: like to see in the mainstream media now. The second
29:31
Speaker 2: it becomes the subject of impeachment, and these stories that
29:34
Speaker 2: we've been talking about are on the front burner, including
29:37
Speaker 2: the use of truth social in order to sell access
29:40
Speaker 2: to information, the legislation about you know, the undermining of
29:44
Speaker 2: legislation that's used for normal criminal law enforcement. The more
29:48
Speaker 2: that we see all of that through impeachment, the more
29:51
Speaker 2: people will care about it, and the more of course
29:53
Speaker 2: mainstream media, not just shows like ours, will pick it up.
29:57
Speaker 1: And I'm sure Barry Weise can't wait to cover this
29:59
Speaker 1: heavily on the New Six Minutes, especially after she hires
30:01
Speaker 1: Scott Bayo to be the anchor. Okay, we got to
30:04
Speaker 1: take a break back in just a moment. Let's talk
30:06
Speaker 1: about some shock gloves too. This is the Oath in
30:09
Speaker 1: the Office. Welcome back to the Oath in the Office podcast.
30:18
Speaker 1: I'm John Fugel sang along with Professor Corey Bretschneider. Corey,
30:22
Speaker 1: Let's move to perhaps the most constitutionally consequential item in
30:26
Speaker 1: today's show. This White House has now asked the Supreme
30:29
Speaker 1: Court to intervene after a second lower court ruling blocked
30:33
Speaker 1: their illegal plan for the US Postal Service to impose
30:36
Speaker 1: new nationwide conditions on mail voting ahead of the midterm elections.
30:41
Speaker 1: Because you got to make it a little harder to
30:43
Speaker 1: exercise her right here, make it a little harder to
30:45
Speaker 1: exercise or right there. They're not fans of democracy, So
30:49
Speaker 1: how much authority does a president actually have over the
30:51
Speaker 1: mechanics of federal elections?
30:53
Speaker 3: Because damn, this man is trying.
30:55
Speaker 2: Wow, this is a frightening story. I mean, you have
30:58
Speaker 2: two lenses here, and you know, I can tell you
31:02
Speaker 2: what I think is right, but I also think that
31:04
Speaker 2: I'm not sure what the Supreme Court is going to
31:06
Speaker 2: say is right. Is the same thing I'm going to say.
31:09
Speaker 2: You know, one lens, which is a lens I wish
31:12
Speaker 2: I could say, is the obvious right answer that, of
31:14
Speaker 2: course the Supreme Court will enforced. It's not, unfortunately, is
31:19
Speaker 2: that elections are controlled by the states and by local government.
31:23
Speaker 2: They thank you, federal authority to you know, simply deny
31:28
Speaker 2: the ability of people to vote in an election because
31:31
Speaker 2: Trump has decided that they're not eligible. And in particular,
31:34
Speaker 2: what he's done is he's got a slate of voters
31:38
Speaker 2: he thinks are ineligible. And my understanding is that many
31:41
Speaker 2: of them are citizens. It's just that they're naturalized citizens.
31:46
Speaker 2: So you would think, like, okay, he can't do that,
31:48
Speaker 2: and you know, and Trump won before he took office,
31:53
Speaker 2: and even in his first term, I would have said,
31:55
Speaker 2: you know, this isn't going to go anywhere. It's just
31:57
Speaker 2: his fantasy. But he's got a way of doing it,
32:00
Speaker 2: which is he's not really trying to go to the
32:02
Speaker 2: officials at the polls, for instance, which he couldn't do
32:05
Speaker 2: and say don't admit these people to vote. That would
32:08
Speaker 2: never work for the reasons that I'm saying.
32:10
Speaker 1: Instead, No, that's why they want to send ice there
32:12
Speaker 1: to intimidate people so they won't try to vote.
32:14
Speaker 2: But to do that, you know, that's another way that
32:16
Speaker 2: he might try. But here's his run around. This is
32:18
Speaker 2: what's scary. He's realized that mail in ballots, of course
32:22
Speaker 2: come through the post office, and he's claiming that as president,
32:26
Speaker 2: he has the discretion to order the post office, which
32:29
Speaker 2: is part of the executive branch. And actually, there's a
32:32
Speaker 2: famous case about control of the post office called Myers
32:35
Speaker 2: versus Nebraska, one of the early cases of the unitary executive.
32:40
Speaker 2: People love because it talks about the idea that, yes,
32:43
Speaker 2: even though a law tried to prohibit Woodrow Wilson actually
32:46
Speaker 2: from a political firing, that Article two's executive power means
32:50
Speaker 2: he can fire the high level official in the post office. Well,
32:54
Speaker 2: that same logic is at play here. I mean, that's
32:57
Speaker 2: the case that dates back to Woodrow Wilson. But they're
32:59
Speaker 2: using it. All the president is doing is making an
33:02
Speaker 2: administrative request order to his subordinates to look out for fraud,
33:08
Speaker 2: and he's allowed to do that. You know that it's
33:11
Speaker 2: not interfering with state election processes. It's just looking at
33:14
Speaker 2: the mail and trying to prevent mail fraud. That's the
33:18
Speaker 2: kind of argument that they're playing with and developing. And
33:21
Speaker 2: if you think about it, right, if that lens is
33:23
Speaker 2: very different than the idea of the state's control elections.
33:27
Speaker 2: It's the lens right, the federal government, president's control over
33:30
Speaker 2: his own agencies. And that's where it gets really scary.
33:33
Speaker 1: Right, But so are we saying that a president can
33:36
Speaker 1: use control over a federal agency like the Post Office
33:40
Speaker 1: to essentially change election rules on his own. I mean,
33:45
Speaker 1: if Congress hasn't authorized a president to impose a particular
33:49
Speaker 1: election requirement, where does that president get the power?
33:52
Speaker 2: Cory, Well, you know, thankfully, there's a danger here. But
33:57
Speaker 2: what the lower court said here, the Court of Appeals,
33:59
Speaker 2: was no, he can't do this, and there's actually an
34:02
Speaker 2: injunction in place that prohibits him from implementing his plan
34:06
Speaker 2: to get the Post Office to refuse to deliver these ballots.
34:10
Speaker 2: And they're citing not just the Constitution but also federal
34:13
Speaker 2: law that says essentially that that's the argument. So that's
34:17
Speaker 2: what I'm hoping will prevail. But of course, what the
34:20
Speaker 2: Solicitor General is doing here is trying to go to
34:22
Speaker 2: the top court in the land in the United States,
34:25
Speaker 2: the Supreme Court of the United States, and he's petitioning
34:28
Speaker 2: them to override the Court of Appeals and to use
34:33
Speaker 2: this more unitary theory. It's just an administrative relationship between
34:36
Speaker 2: the president and the Post Office. And if I told you, well,
34:40
Speaker 2: they would never do that. The Supreme Court's not going
34:42
Speaker 2: to expand the theory of the unitary executive to undermine
34:45
Speaker 2: statute and the Constitution. Well, you know, good luck to us,
34:48
Speaker 2: because that's exactly what they've done again and again. This
34:52
Speaker 2: is the same court that, by the way, there used
34:54
Speaker 2: to be at least a tention in constitutional law, the
34:57
Speaker 2: Meyer's case about control over the Post Office, which I mentioned,
35:01
Speaker 2: and the counterbalance was the Federal Trade Commission case Humphrey's
35:04
Speaker 2: Executor that said Congress can create all sorts of laws
35:07
Speaker 2: that limit the president's ability to hire and fire kind
35:11
Speaker 2: of independent agencies. Well, the Supreme Court this past term
35:15
Speaker 2: just overturned Humphrey's executor. They know the Meyer's idea of control, control, control, control,
35:22
Speaker 2: So that's why on this one, I wish I could
35:24
Speaker 2: say I'm not worried. No, I'm plenty worried about this one.
35:28
Speaker 3: Yeah, me too.
35:29
Speaker 1: I mean, how can this not be stopped by so
35:33
Speaker 1: many lawsuits scry. If a president changes the voting procedures,
35:37
Speaker 1: like just months before an election, I would imagine that
35:41
Speaker 1: courts would want to apply a heightened level of scrutiny
35:44
Speaker 1: because there's such a danger of confusing voters or disrupting
35:47
Speaker 1: the whole election administration. I mean, everyone knows he's doing
35:50
Speaker 1: this to cheat. Everyone knows there's no problem with elections
35:53
Speaker 1: when Barack Obama and Joe Biden are in office. But
35:56
Speaker 1: when he's in office, shit's got to get rearranged, right,
35:59
Speaker 1: I mean, I would imagine that this would just get
36:02
Speaker 1: shut down by lawsuits immediately.
36:05
Speaker 2: Well, you know, that's what we're in the middle of.
36:06
Speaker 2: There were successful lawsuits to stop him from doing that.
36:10
Speaker 2: That's why there's a order to keep him from implementing
36:13
Speaker 2: this plan as of now. But you know, the people
36:17
Speaker 2: listeners will know the duck rabbit. Right, there's a picture
36:20
Speaker 2: and if I look closely, it looks like a duck.
36:22
Speaker 2: And then if I look at it, it looks like
36:23
Speaker 2: a rabbit.
36:24
Speaker 3: No, it's a duck.
36:25
Speaker 2: No, it's a rabbit. Well, the duck part of it,
36:28
Speaker 2: the part that I see says, you know, I don't
36:31
Speaker 2: think so it's everything that you just said. He's trying
36:34
Speaker 2: to basically undermine the ability of states to control their
36:36
Speaker 2: own elections. And his purpose isn't fraud or the common good.
36:40
Speaker 2: It's to win at all costs. See's the same guy
36:43
Speaker 2: that specified to the Georgia Secretary of State the number
36:46
Speaker 2: of votes that he needed to win, and that he
36:48
Speaker 2: wanted to find those votes. So you know that's the
36:52
Speaker 2: duck part. Now, the Supreme Court is in a different world.
36:55
Speaker 2: They see the rabbit and what the rabbit says. Possibly
36:58
Speaker 2: they haven't said this yet, but what they're solicitor general
37:01
Speaker 2: is saying this. The Solicitor General is a person defends
37:03
Speaker 2: the United States before the Supreme Court, and what he
37:07
Speaker 2: sees is is just a president talking to his staff.
37:10
Speaker 2: And who are you to come in and tell him
37:12
Speaker 2: what he can tell the Post Office, which is part
37:14
Speaker 2: of his branch, what to say or how to laws
37:18
Speaker 2: about fraud.
37:19
Speaker 1: Right, but I've learned about from you about the Percel principle. Right,
37:24
Speaker 1: isn't that the Supreme Court's concerned about courts changing election
37:27
Speaker 1: rules close to an election? I mean, couldn't the court say,
37:30
Speaker 1: even if we agree with these changes and they're legal
37:33
Speaker 1: in the abstract, it's too late to impose them before
37:35
Speaker 1: an election. I mean, wouldn't that seem realistic?
37:39
Speaker 2: I really hope so, John, They want to have it.
37:41
Speaker 1: Both ways, mister Trump, But we care about our own reputations.
37:45
Speaker 1: That's the John Roberts way.
37:47
Speaker 2: You know, if I think about one of the most
37:50
Speaker 2: what impactful moments in American history in which the Supreme
37:54
Speaker 2: Court made a decision that impacted presidential election, this is
37:58
Speaker 2: the midterms, this president, it's Bush vy Gore, And you
38:03
Speaker 2: know what's the rationale for it? They actually said, you know,
38:07
Speaker 2: in Bush v. Gore in the court said, this is
38:10
Speaker 2: not a precedent. It's a one time thing. Every time
38:13
Speaker 2: a court makes a decision, it's a precedent. That's why
38:15
Speaker 2: it's a court of law, because it's making apining supposedly
38:19
Speaker 2: based on independent principles of law, not based on politics.
38:22
Speaker 2: But yet in that decision they seem to say, well,
38:25
Speaker 2: we're just deciding. And then they had a mismash of
38:28
Speaker 2: explanations that really made no sense. Some were about states
38:31
Speaker 2: rights on the notical too. Some are about equal protection.
38:36
Speaker 2: And I don't know if I've ever talked about this
38:38
Speaker 2: on the podcast, but I had in my life. One
38:40
Speaker 2: of the most bizarre but interesting moments. When I was
38:43
Speaker 2: a graduate student, Justice Scalia came to speak and he
38:46
Speaker 2: said that he wanted to meet with a few students.
38:50
Speaker 2: It was right after Bush v. Gore, and I said
38:53
Speaker 2: to him exactly what I'm saying to you all. I said,
38:55
Speaker 2: you know, this decision Bush v. Gore doesn't make any
38:59
Speaker 2: sense because on the one hand, there's this argument about
39:02
Speaker 2: Article two and the importance of respecting state legislatures and
39:07
Speaker 2: why it is that the state courts in Florida disrespected
39:11
Speaker 2: the state legislature under the electoral college. And on the
39:15
Speaker 2: other hand, there's this argument about national equal protection and
39:19
Speaker 2: why we have to count all votes nationally the same way.
39:22
Speaker 2: And we've never said that second thing. And you, Justicelei,
39:25
Speaker 2: this is what I said to him, have never said
39:27
Speaker 2: anything like that, so you know what's going on. And
39:31
Speaker 2: the first thing he was like, famous, you know, for
39:33
Speaker 2: being pugnacious and making sure we first thing he says
39:37
Speaker 2: is well, liberals like you seem to love the equal
39:39
Speaker 2: protection clause. And finally I used it, so you know,
39:42
Speaker 2: and I said, you know, come on, this isn't your
39:45
Speaker 2: jurispru It's not what you believe in, and he basically
39:48
Speaker 2: was like, you know, sometimes you just need to make
39:50
Speaker 2: a decision basically. Yet it's political, it's pragmatic. You're not
39:54
Speaker 2: really seeing the reasoning. And you know that's the reality
39:57
Speaker 2: kid of how it works. At least you know. That's
40:01
Speaker 2: what scares me that in that huge case, it wasn't
40:05
Speaker 2: decided as a matter of law, it was really politics.
40:08
Speaker 2: Ralph Nader, when I spoke to him, once called it
40:10
Speaker 2: a judicial coup, and I think that was an interesting
40:13
Speaker 2: way to put it. And here we are again.
40:16
Speaker 1: Wow, you were right, Corey. This is a depressing episode.
40:18
Speaker 1: I really, I just I'm trying so hard here. I
40:20
Speaker 1: do want to say at least Scalia died doing what
40:23
Speaker 1: he loved, taking expensive free gifts from rich scumbacks. But
40:27
Speaker 1: it just seems like this is the cycle now, like
40:29
Speaker 1: we have to teach kids civics in a whole new way.
40:31
Speaker 3: This is what this is.
40:32
Speaker 1: It the president does something that's illegal, lower court blocks it,
40:36
Speaker 1: the administration appeals and appeals until the Supreme Court always
40:40
Speaker 1: gets asked to intervene. I mean, isn't the Supreme Court
40:42
Speaker 1: becoming like the de facto administrative veto point in American government.
40:48
Speaker 2: You know, SNL did a skit about trying to rewrite
40:51
Speaker 2: how a bill becomes a law the Schoolhouse rock song.
40:54
Speaker 2: You know, I'm just a bill sitting on Capitol Hill,
40:57
Speaker 2: and it was a video of I mean, is Keenan
41:00
Speaker 2: Thompson pushing He's an executive order and he pushes the
41:04
Speaker 2: bill down the stairs, and the executive order is sort
41:06
Speaker 2: of taking over. That's part of it. But I think
41:09
Speaker 2: what they're missing and what you're adding to it is
41:12
Speaker 2: it's really the Supreme Court is wrangling all of it
41:15
Speaker 2: together in its own image, and it's not the idea
41:19
Speaker 2: that it's using law. You know, I wish, having taught
41:22
Speaker 2: constitutional law for more than two decades, that I could
41:26
Speaker 2: just say, well, you know, let me explain it. I
41:28
Speaker 2: used to say things like that, let me explain it.
41:30
Speaker 2: It's more complicated. It's not more complicated. The Supreme Court
41:33
Speaker 2: might interfere with our election because of this theory that
41:37
Speaker 2: you know, election fraud is the business of the president.
41:40
Speaker 1: Oh that's not the reason why that interfere with our election.
41:42
Speaker 1: Because they were aristocrats, and this is how the systems
41:45
Speaker 1: always protected itself since the founders decided only white males
41:48
Speaker 1: who own land should be allowed to vote. It's a
41:51
Speaker 1: big club and we're not in it, right. I mean,
41:53
Speaker 1: we got to take a break. But let me just
41:54
Speaker 1: ask you, I mean, ten years from now, looking back
41:56
Speaker 1: on this, isn't it just going to look like the
41:59
Speaker 1: entire of this administration was to just commit crimes long
42:03
Speaker 1: enough until the Supreme Court stops them.
42:05
Speaker 3: That's it, right.
42:07
Speaker 2: Donald Trump's you know, whole strategy as a litigant is
42:10
Speaker 2: always delayed, delayed, delay, and he did this incredibly successful
42:14
Speaker 2: in the cases against him in Florida, the Document's case
42:18
Speaker 2: and in the January sixth case that were brought by
42:21
Speaker 2: Jack Smith. He delayed, delayed, delayed. He used this immunity decision,
42:25
Speaker 2: which didn't They never decided that he had immunity, that
42:27
Speaker 2: these were public acts, and in fact they might not have.
42:30
Speaker 2: But he became president, and once he became president, the
42:34
Speaker 2: Department of Justice was under his control. They weren't going
42:36
Speaker 2: to prosecute him, and they also have a policy against
42:39
Speaker 2: prosecuting sitting president. So delay, delayed, delay, you know that
42:43
Speaker 2: that's part of the story. But it's more than that too.
42:45
Speaker 2: It's a court that routinely has enabled by the way
42:50
Speaker 2: they weren't doing this as an extreme away under Joe
42:53
Speaker 2: Biden has enabled this president and you know that looks
42:57
Speaker 2: like politics. And I come to the sad conclusion, and
43:00
Speaker 2: of course it is.
43:01
Speaker 1: We got to take a quick break. But when we
43:02
Speaker 1: come back, Corey, can we talk about shock gloves? Because
43:05
Speaker 1: I don't want to spoil what I got you for Christmas.
43:07
Speaker 1: But we really got to have this conversation back in
43:10
Speaker 1: a moment with the Oath and the Office. Welcome back
43:19
Speaker 1: to the Oath in the Office podcast. I'm John Fugel
43:21
Speaker 1: sang along with Professor Corey the mac Bretschneider. Corey, let's
43:25
Speaker 1: talk about something that sounds like it was invented at
43:27
Speaker 1: the deepest darkest s and m dungeon that Stephen Miller
43:30
Speaker 1: Dwells in the Associated Press says that ICE is going
43:34
Speaker 1: to spend as much as twenty million of our taxpayer
43:37
Speaker 1: dollars to buy gloves that are capable of delivering painful
43:41
Speaker 1: electric shocks to other people upon direct contact, because these
43:45
Speaker 1: are Christians who like to hurt people. DHS is saying
43:48
Speaker 1: it's a less lethal compliance tool. Tom Holman has defended them.
43:52
Speaker 1: There's another option that's short of deadly.
43:54
Speaker 2: For us.
43:55
Speaker 1: And when was Tom Holman anything but the most forthright
43:58
Speaker 1: law abiding man, Corey. But what is the constitutional standard
44:02
Speaker 1: that governs the use of electrical shocks against somebody by
44:07
Speaker 1: an immigration officer?
44:10
Speaker 2: You know, I have to say, I'm still stuck on
44:12
Speaker 2: the idea that this is my Christmas gift.
44:13
Speaker 3: But well, let's see, let's see. Yeah, well you answer
44:16
Speaker 3: this question.
44:16
Speaker 1: You've got to heard Ito on now I'm feeling I'm
44:19
Speaker 1: not here to King shame Cory. Whatever you're into is
44:21
Speaker 1: fine with me. But but I mean, immigration officers are
44:24
Speaker 1: allowed to inflict electric shock pain on people?
44:30
Speaker 3: Covers this?
44:31
Speaker 2: No, And you know, let's talk about what immigration officers
44:34
Speaker 2: are supposed to be doing. They're supposed to be Yes,
44:36
Speaker 2: they have the ability to enforce federal immigration law. And
44:40
Speaker 2: in our system, the federal government has control over immigration
44:44
Speaker 2: policy and that gives them certain rights to investigate whether
44:47
Speaker 2: or not somebody is in the country lawfully.
44:49
Speaker 3: But that would this will deport them with no due process.
44:52
Speaker 2: I mean the thing but what this department has done
44:56
Speaker 2: is turned ice into this deportation for us and a
44:59
Speaker 2: kind of militia and so as protests. You know, this
45:03
Speaker 2: is what scares me of course that as protesters start
45:06
Speaker 2: to surround them and to use their First Amendment rights.
45:10
Speaker 2: Just because there are rights of the federal government to
45:12
Speaker 2: enforce immigration laws, that doesn't mean that we lose our
45:15
Speaker 2: right to protest. They are massive abuses. And what we've seen,
45:19
Speaker 2: what they've done already with the killings in Minnesota for instance,
45:24
Speaker 2: what are they going to do with these gloves? You know,
45:26
Speaker 2: in these confrontations. I just see protesters, you know, being
45:30
Speaker 2: illegally attacked, and there's no law in the books that
45:34
Speaker 2: allows that.
45:35
Speaker 1: Let's say, these people are allowed to murder citizens and
45:38
Speaker 1: not face any kind of accountability.
45:41
Speaker 2: It's one thing, you know, too, we've talked about the
45:44
Speaker 2: role of the states versus the federal government. There is
45:47
Speaker 2: no way that any US attorney is going to bring
45:49
Speaker 2: cases against ICE agents. I'm just not seeing it, even
45:53
Speaker 2: when they engage in.
45:54
Speaker 3: Not until twenty twenty nine, they won't.
45:56
Speaker 2: Yeah, that's right, and let's not forget that just because
45:59
Speaker 2: it's not being brought now that the next administration will
46:02
Speaker 2: have the power to do that. I certainly hope that happens.
46:05
Speaker 2: But you know, there is a role for states in
46:08
Speaker 2: bringing these prosecutions, and there isn't an explanation, a good
46:12
Speaker 2: explanation of why state prosecutors and local prosecutors haven't brought
46:17
Speaker 2: these cases they should be. I think there's some worry
46:20
Speaker 2: about the idea that the federal government is supreme. But
46:24
Speaker 2: if you murder somebody and you're an officer, you're subject
46:28
Speaker 2: to the same criminal laws as everybody else. And yes,
46:31
Speaker 2: there is a limited kind of immunity for federal officers,
46:34
Speaker 2: but it's not absolute. And so anyway, as we see
46:38
Speaker 2: this department clearly not abandoning its vigilanti ways, you know,
46:42
Speaker 2: we've got to start pushing local prosecutors, some of them
46:45
Speaker 2: are elected to bring these cases.
46:47
Speaker 3: It's just Jesus Christ. How these people hate Jesus Christ.
46:50
Speaker 3: I got to say.
46:51
Speaker 1: You know, their argument from the government is, well, it's
46:53
Speaker 1: non lethal, so it's preferable to killing people. Right, It's
46:58
Speaker 1: not deadly for us, it's non lethal. My understanding is
47:01
Speaker 1: the question under the Fourth Amendment is reasonableness, Professor, Just
47:06
Speaker 1: the fact that a weapon is classified as less lethal
47:10
Speaker 1: tell us anything about whether its use is still constitutionally
47:14
Speaker 1: reasonable under the Fourth Amendment.
47:17
Speaker 2: I mean to me, look, there are entitlements of ice
47:21
Speaker 2: officers to what's called qualified immunity. So they have made
47:24
Speaker 2: a crime, you know, like assault, it's not as easy
47:29
Speaker 2: to prosecute them, especially if they had the understanding and
47:33
Speaker 2: were intending to really just enforce the law. But the
47:36
Speaker 2: idea that it's just a murder that's illegal can be
47:39
Speaker 2: prosecuted and not assault. You know, imagine we can use
47:42
Speaker 2: a million hypotheticals to think about it. Imagine that an
47:45
Speaker 2: ice officer, you know, gets irritated with a protester and
47:50
Speaker 2: some these shot gloves to attack them. That's assault. You know,
47:54
Speaker 2: who aren't simple and there's no qualified immunity that should
47:57
Speaker 2: protect them. So no, the fact that it's assault rather
48:00
Speaker 2: than deadly force, I don't see that that has any
48:04
Speaker 2: relevance to the question of whether or not a crime
48:06
Speaker 2: was committed by these officers.
48:08
Speaker 1: Yeah, I mean, doesn't matter whether the person is, you know,
48:10
Speaker 1: attacking the officer or resisting arrest, or trying to run
48:13
Speaker 1: away or just refusing to comply with a direction. I mean,
48:16
Speaker 1: if an officer has a device where you can cause
48:19
Speaker 1: pain to a human being at the press of a button,
48:22
Speaker 1: it seems like that technology will change the officer's incentives here.
48:26
Speaker 2: Yeah, I mean, it's it's an interesting point, because look,
48:29
Speaker 2: how do you what you're really asking, which I think
48:31
Speaker 2: is and we're all just starting to think about this.
48:34
Speaker 2: Is it possible to use these gloves at all in
48:37
Speaker 2: a legal way? Okay, so you can restrain somebody in
48:41
Speaker 2: order to detain them in imagine a lawful detaining situation.
48:45
Speaker 2: Is there any universe in which using these gloves is
48:48
Speaker 2: just a sort of detention you know technique. You know,
48:52
Speaker 2: imagine somebody that has I'm trying to think of an equivalent, like,
48:56
Speaker 2: you know, shooting bullets out of their vest every time
48:59
Speaker 2: they do and arrest, and they claim that this is
49:01
Speaker 2: just in the or bebes that are meant to maim
49:05
Speaker 2: somebody rather than cause pain. You know that there are
49:08
Speaker 2: techniques that you can use and then there are techniques
49:10
Speaker 2: that you can't use in detention. And this strikes me
49:13
Speaker 2: as obviously over the top. So it isn't just the
49:16
Speaker 2: intent here that matters. The question really is is there
49:19
Speaker 2: any lawful use of these or is it the whole
49:23
Speaker 2: existence of the gloves just something that strikes us as
49:26
Speaker 2: not in the pursuit of any kind of legitimate duty
49:28
Speaker 2: of these officers.
49:30
Speaker 1: Corey, I'm looking at all these stories today that we've
49:33
Speaker 1: covered about presidential self enrichment and corporate transparency and election
49:38
Speaker 1: administration and now violence against immigration. I mean, it seems
49:42
Speaker 1: like it's all about who watches the people who exercise
49:45
Speaker 1: government power. Is that the thread that links these stories together.
49:50
Speaker 2: Yeah? Yes, And you know, I would kind of divide
49:53
Speaker 2: in our conversation into two other themes. One is that
49:55
Speaker 2: the for profit presidency, that this president has really taken
49:59
Speaker 2: this office to be for the public good, and we
50:02
Speaker 2: see that in the oath itself the name of the podcast,
50:05
Speaker 2: to preserve, protect, and defend the Constitution. We see that
50:08
Speaker 2: in the obligation to take care that the laws are
50:10
Speaker 2: faithfully executed. And what has he done. He's tried to
50:13
Speaker 2: make money by you know, enriching himself and including you know,
50:18
Speaker 2: giving a chance to buy in to the insider trading
50:21
Speaker 2: that evidently has gone on in regard to oil futures,
50:25
Speaker 2: and you know other parts of this presidency and the
50:27
Speaker 2: crypto corruption that we've seen. So you know, that's part
50:32
Speaker 2: of the theme. And then the other thing that I've
50:33
Speaker 2: tried to sketch too is that, you know, throughout all
50:36
Speaker 2: these stories, I think that we've carved out the way
50:39
Speaker 2: in which the corruption is spreading. You know, it's not
50:42
Speaker 2: just like this one guy in the corner, you know,
50:44
Speaker 2: like Spirou Agnew took bribes. Okay, did that infect the
50:47
Speaker 2: whole federal government? No, it was some small time con
50:51
Speaker 2: guy that was like off in a corner taking bags
50:53
Speaker 2: of money.
50:54
Speaker 1: That's even care. That's the difference. People cared when Agnew
50:57
Speaker 1: did it.
50:58
Speaker 2: Yeah, and he was removed office, and you know there
51:01
Speaker 2: was a criminal content, Yeah, and you know, resulting of
51:05
Speaker 2: course and Ford taking over. But here what's happening is
51:08
Speaker 2: so much it's not only that there's no accountability, it's
51:11
Speaker 2: that it's so much bigger that you know, he's selling
51:14
Speaker 2: the office to basically public subscribers who want inside trading information,
51:21
Speaker 2: and then he's also killing off And this was so
51:23
Speaker 2: much of what we also talked about the ability of
51:27
Speaker 2: everyone else in the government to do their jobs, to
51:29
Speaker 2: take their oades seriously. And that's what I think makes
51:33
Speaker 2: this not just an isolated corruption, but something that really
51:36
Speaker 2: has not an isolated, you know, presidential set of crimes,
51:40
Speaker 2: but really destroying the whole integrity of the country.
51:43
Speaker 1: So, just to wrap up what I got here, is
51:45
Speaker 1: a president is allowed to monetize access to information generated
51:49
Speaker 1: by the presidency. A president's allowed to refuse to enforce
51:53
Speaker 1: a federal law if he doesn't like the law. A
51:56
Speaker 1: president can essentially rewrite a federal law through his executive
51:59
Speaker 1: brand orders. A president can impose nationwide election rules without
52:04
Speaker 1: Congress if he feels like it. And an immigration officer
52:08
Speaker 1: can shock you because he doesn't like you. Today, Am
52:12
Speaker 1: I getting all this right? This is where we're at now,
52:14
Speaker 1: right in the dystopian America?
52:16
Speaker 2: Well, you know you've taught me many times the first
52:19
Speaker 2: rule of improvs yes, and so I'm going to say yes,
52:21
Speaker 2: and that is all happening. That's what we've been talking about.
52:25
Speaker 2: You know, this isn't the way it's supposed to be.
52:27
Speaker 2: If you read the Constitution itself, it says the opposite.
52:30
Speaker 2: It doesn't say that a president uses the office for
52:33
Speaker 2: his own personal profit. It says you can't do that.
52:36
Speaker 2: And the idea of civil servants taking odes, I mean,
52:39
Speaker 2: they're not supposed to just be beholden to a president
52:42
Speaker 2: that wants to use them for his own personal gain.
52:45
Speaker 2: So we've just lost our way as a country in
52:48
Speaker 2: such a fundamental way that the Charter has just become
52:53
Speaker 2: the opposite of what we're doing. Yeah, we have lost
52:56
Speaker 2: our way.
52:56
Speaker 1: I think you're right, But I mean, are we witnessing
52:58
Speaker 1: the failure of the constitutional guardrails here or are we
53:02
Speaker 1: actually witnessing No, it sucks, but the system is still functioning.
53:06
Speaker 1: The courts, the Congress, journalists, citizens are still pushing back.
53:09
Speaker 1: We're doing this podcast. I mean, right, like, it seems
53:12
Speaker 1: like the system is still functioning in spite of the
53:15
Speaker 1: naked corruption.
53:17
Speaker 2: I think that we are fighting back. He hasn't succeeded
53:19
Speaker 2: in collapsing the system, but we are also seeing the
53:22
Speaker 2: weaknesses of our system. I don't want to blame it
53:25
Speaker 2: all on him and say that, you know, all we
53:27
Speaker 2: need to do is fight back. We need to really
53:29
Speaker 2: recreate the guardrails of the system. The Constitution itself really
53:33
Speaker 2: is an outline of the guardrails, but it has to
53:36
Speaker 2: be filled in with laws that make what he's doing illegal.
53:39
Speaker 2: We haven't done that that make it illegal for people
53:42
Speaker 2: to participate with a president who wants to involve them
53:45
Speaker 2: in his own crimes through this kind of insider trading.
53:49
Speaker 2: And so I really think that part of the lesson
53:51
Speaker 2: of all of this isn't just that we need to
53:54
Speaker 2: fight back, but that we need to recreate the guardrails
53:58
Speaker 2: that protect us from this ever happening again.
54:00
Speaker 1: Amen, Professor, I'm so grateful for this conversation today. I
54:04
Speaker 1: know we went really deep, but I got to say,
54:06
Speaker 1: I'm going to miss Caroline Levitt lying about the price
54:09
Speaker 1: of eggs, lying about tariffs, lying about Epstein, lying about
54:12
Speaker 1: a breakout, Garcia, lying about DEI, lying about the reflecting pool,
54:16
Speaker 1: lying about signal gates. So it's really comforting to actually
54:18
Speaker 1: be here and break it all down, Corey. What's the
54:21
Speaker 1: best way for our listeners to follow you and keep
54:23
Speaker 1: up with your brilliance the other six days of the week.
54:26
Speaker 2: Well, I should remind listeners wherever you're listening to us.
54:29
Speaker 2: You could listen to us on any audio podcast platform
54:32
Speaker 2: or watch us on YouTube. Push that subscribe button and
54:36
Speaker 2: tell your friends. There is also an oath in the
54:39
Speaker 2: office substack where we go deeper with links to these
54:43
Speaker 2: stories and with additional insights that we weren't able to
54:46
Speaker 2: get to on the show. So check that out. And
54:49
Speaker 2: what a pleasure it is to do this with you, John.
54:51
Speaker 2: It is depressing what's happening every week, but I don't
54:54
Speaker 2: feel depressed because I'm really emboldened by the great listeners
54:58
Speaker 2: that I've heard from who love even things like license
55:02
Speaker 2: plate discussions about constitutional law, and really enjoy these discussions
55:07
Speaker 2: with you every week. It's given me hope that we
55:09
Speaker 2: will get through this.
55:10
Speaker 1: I want to thank you. I want to thank Wendy
55:12
Speaker 1: and Beowulf and everyone who puts the show together. You
55:14
Speaker 1: can hear me every afternoon noon to three Eastern time
55:17
Speaker 1: on sirius XM's Progress channel. If you don't have Progress,
55:20
Speaker 1: you can hear it as the John People Saying Podcast
55:22
Speaker 1: wherever you get your fine podcasts. My book is called
55:25
Speaker 1: Separation of Church and Hate, and Corey, thank you so much.
55:28
Speaker 1: It's really always a pleasure, and as depressing it as
55:30
Speaker 1: it is, I feel much more well armed to face
55:33
Speaker 1: reality and not hide and vape and watch Kardashians.
55:36
Speaker 3: So thank you, sir.
55:38
Speaker 2: And I just add one thing John, which as I
55:40
Speaker 2: know you're going to be on vacation and hope you
55:44
Speaker 2: enjoy that while I know you're working on it's a
55:46
Speaker 2: worker vacation. Yeah, and just tell listeners too to check
55:50
Speaker 2: out my discussion next week with Representative Chariot Huffman about
55:54
Speaker 2: his new book. He's thinking, as you've gotten deeply about
55:58
Speaker 2: religion and religious freedom in this well.
56:00
Speaker 1: I'll miss you, Corey, but yes I will be in
56:02
Speaker 1: Sweden because over there I appear tam. Thank you all
56:06
Speaker 1: so much for listening, and we will see you next
56:08
Speaker 1: time on the Oath and the Office