Latest / The Oath and The Office / Trump’s $2.2 Billion Presidency: The Corruption the Constitution Saw Coming
Transcript
- 0:11Speaker 1: Welcome to The Oath and the Office podcast. I am
- 0:14Speaker 1: John Fuegel Sang. It is a pleasure to have you
- 0:17Speaker 1: with us, and it's a pleasure to welcome the star
- 0:19Speaker 1: of our broadcast, the author of the Oath in the Office,
- 0:22Speaker 1: the Ivy League, professor who you've read in the New
- 0:25Speaker 1: York Times, CNN, Time Magazine, the author of the presidents
- 0:29Speaker 1: and the people as well, people of Earth. Let's make
- 0:31Speaker 1: some noise for Professor Corey Bretschneider.
- 0:33Speaker 2: Hello, sir, hi John, And what a week we have.
- 0:37Speaker 3: The cryptocurrency scheme, the theft really that we have going
- 0:43Speaker 3: on from the President, the question of how we would
- 0:46Speaker 3: ever hold him to account given the grand theft that
- 0:49Speaker 3: we're seeing, the question of transgender rights in the Supreme Court.
- 0:53Speaker 3: It's going to be an amazing show, one that delves
- 0:55Speaker 3: into the crisis of democracy, but also that offers hope, as.
- 0:59Speaker 2: We do every week. You haven't subscribed yet, push that
- 1:02Speaker 2: subscribe button.
- 1:03Speaker 1: Yes, And I want to praise you for as well, Corey,
- 1:06Speaker 1: for the crazy ratings this podcast is getting. It's it's
- 1:09Speaker 1: way too popular, and we need to talk about how
- 1:11Speaker 1: this is going to your head. Professor. I think I
- 1:15Speaker 1: respect your standing as an Ivy League constitutional scholar. The
- 1:19Speaker 1: bling's a bit much, but this is not the place
- 1:21Speaker 1: to discuss the blink.
- 1:22Speaker 3: We'll talk about I'm getting used to the paparazzi, you know,
- 1:25Speaker 3: and I'm dealing with it. Well, I haven't yelled at
- 1:27Speaker 3: too many of them are throwing fits.
- 1:29Speaker 2: I really try to welcome them.
- 1:30Speaker 1: Yeah, good, good, Try to not throw too many phones
- 1:32Speaker 1: at assistance Scory and I want this to go to
- 1:34Speaker 1: your head, but I want to I want to talk
- 1:36Speaker 1: about one of the topics that you just raised, Professor,
- 1:39Speaker 1: because Donald Trump has finally, I think, found the perfect
- 1:41Speaker 1: business model for him, selling the American dream as a
- 1:45Speaker 1: pump and dump scheme. You'll recall, during the campaign of
- 1:49Speaker 1: twenty twenty four, Donald Trump repeatedly promoted his Trump meme
- 1:53Speaker 1: coin on social media, kept encouraging supporters to purchase it. Now,
- 1:57Speaker 1: for those who don't know, a meme coin is the
- 2:00Speaker 1: only product where the disclaimer pretty much says this is
- 2:04Speaker 1: not an investment, and a lot of guys here, oh,
- 2:08Speaker 1: this could be my retirement plan. Because the entire ecosystem
- 2:11Speaker 1: runs on four emotions fear of missing out, greed, denial,
- 2:14Speaker 1: and the belief that you'll be smart enough to sell
- 2:17Speaker 1: before everyone else, so Professor. This week's headlines told us
- 2:21Speaker 1: Trump's twenty twenty five financial disclosure reported at least two
- 2:25Speaker 1: point two billion in business income, with cryptocurrency being one
- 2:29Speaker 1: of his biggest sources of revenue in his life. Now,
- 2:32Speaker 1: the coin Trump's meme coin, like Trump's hair, like Trump's
- 2:37Speaker 1: digestive system, has now collapsed. After peaking above seventy five bucks,
- 2:41Speaker 1: the meme coin was trading around a dollar seventy six
- 2:44Speaker 1: by the end of the reporting period. That's a decline
- 2:47Speaker 1: of about ninety seven percent, and according to analytics from
- 2:50Speaker 1: Nansen Corey, almost one million people who bought the Trump
- 2:54Speaker 1: meme coin their wallets were underwater by the end of June.
- 2:57Speaker 1: About two of every three buyers lost money. Those investors
- 3:02Speaker 1: lost a combined are you sitting down three point eighty
- 3:06Speaker 1: one billion dollars while Donald Trump himself as an individual
- 3:10Speaker 1: walked away with six hundred and thirty six million as
- 3:14Speaker 1: a payout from the same venture where one million fans
- 3:19Speaker 1: lost three billion dollars. Corey, I'm sorry it takes so
- 3:24Speaker 1: long to set this up, but the framers worried so
- 3:27Speaker 1: much about corruption, which constitutional provisions do you think were
- 3:31Speaker 1: designed to prevent presidents from enriching themselves while in office
- 3:35Speaker 1: like this. I know about the emoluments clause, but these
- 3:38Speaker 1: guys were really trying to plan to prevent this from happening.
- 3:41Speaker 3: I'm eager to get to the constitutional history. And yes,
- 3:44Speaker 3: the framers worried about this. They thought they had a
- 3:47Speaker 3: response to the anti federalists who worried that the presidency
- 3:50Speaker 3: would become a source of criminality.
- 3:52Speaker 2: And things like this. The anti federalists.
- 3:55Speaker 3: Predicted, these are the people who oppose ratification would happen
- 3:59Speaker 3: all the time. And Founders put two clauses into the
- 4:02Speaker 3: Constitution to combatant the emoluments clauses.
- 4:05Speaker 2: They thought it was so important.
- 4:07Speaker 3: They put two in actually, one prohibiting domestic emoluments, one
- 4:11Speaker 3: prohibiting international emoluments. And of course this story and all
- 4:16Speaker 3: the elements of it have a domestic element, the people
- 4:18Speaker 3: who are victimized domestically by this scam coin, and also
- 4:23Speaker 3: the international investments that the president is getting in these
- 4:26Speaker 3: crypto companies, which obviously, to my mind, violate the international
- 4:31Speaker 3: emolument's clause.
- 4:33Speaker 2: And again I thought this was such a big deal.
- 4:34Speaker 3: They put it in there twice before I get to
- 4:37Speaker 3: the complications of criminality and could he be prosecuted? The
- 4:41Speaker 3: question I want to address, which it turns out to be,
- 4:44Speaker 3: unfortunately a complicated one.
- 4:46Speaker 2: It shouldn't be, but it is.
- 4:47Speaker 3: I just want to say something about this kind of
- 4:50Speaker 3: crime because I think it's so relevant to our politics
- 4:52Speaker 3: right now. So often people say to us, you know
- 4:56Speaker 3: you're doing this show about protecting democracy, What about inflation?
- 4:59Speaker 2: What about pocketbook issues?
- 5:00Speaker 3: And of course both of those matter, And the key
- 5:03Speaker 3: I think for those running in this congressional election, if
- 5:06Speaker 3: candidates are listening, I know a lot of staff are listening,
- 5:09Speaker 3: and people who are voters and concerned about this are listening.
- 5:13Speaker 2: The key is to see how they fit together.
- 5:15Speaker 3: And john your comment about pump and dump really captures it,
- 5:19Speaker 3: because this kind of corruption is not victimless.
- 5:22Speaker 2: It's yes, Trump in using the office to.
- 5:24Speaker 3: Enrich himself, that's the definition of an emolument, and doing
- 5:27Speaker 3: it at the expense of ordinary people. And so much
- 5:31Speaker 3: of the corruption has a financial cause. So it really
- 5:34Speaker 3: is one idea, worrying about pocketbook issues and worrying about corruption.
- 5:39Speaker 2: All right, onto the big question.
- 5:41Speaker 1: Oh sorry, Johnny, I just want to answer one thing
- 5:43Speaker 1: when you use the phrase corruption. Now, of course we're
- 5:46Speaker 1: not saying that this entire scheme is a crime. Crypto
- 5:50Speaker 1: is legal and it is regulated, give or take. The
- 5:53Speaker 1: corruption comes in the chief executive enriching himself off the office.
- 5:57Speaker 1: That is what that is where this becomes legal. And
- 6:00Speaker 1: as I've pointed out to you many times, Professor, under
- 6:03Speaker 1: the emolument's clause, Donald Trump could have been impeached during
- 6:06Speaker 1: the first minute of his first inaugural address in twenty seventeen.
- 6:10Speaker 1: But go on, get to the big stuff.
- 6:12Speaker 3: Yeah, so let's get into it. I mean, look, here's
- 6:15Speaker 3: the unfortunate thing. As I talked to people who are prosecutors.
- 6:18Speaker 3: For instance, we had Joyce Vance on the show last week.
- 6:21Speaker 3: If you haven't listened to that episode, listened to it.
- 6:23Speaker 3: We were actually right after that on MS NOW together
- 6:27Speaker 3: talking about this issue and what she pointed out. And
- 6:30Speaker 3: remember this is a seasoned prosecutor. She was US attorney
- 6:33Speaker 3: in Alabama based in Birmingham, as you heard her talk about,
- 6:36Speaker 3: and her view is it's complicated that if she was
- 6:38Speaker 3: going to try to bring this case under the existing laws,
- 6:42Speaker 3: that it would be a hard thing to do.
- 6:43Speaker 2: She didn't say it was impossible. It might be possible.
- 6:46Speaker 3: There are anti corruption statutes, but the bottom line is
- 6:50Speaker 3: they are.
- 6:50Speaker 2: Way too weak. How should this be a hard question.
- 6:54Speaker 3: It's obviously the president using the office to enrich himself
- 6:58Speaker 3: that violates the me of the emoluments clauses, both of them.
- 7:02Speaker 3: So my view about this is if it's a hard
- 7:06Speaker 3: legal case, instead of just going back and forth, the
- 7:08Speaker 3: obvious thing that we need to be doing talking about
- 7:11Speaker 3: the next election is supporting a bill to make it
- 7:15Speaker 3: clearly criminal to use the office in a cryptos scheme
- 7:18Speaker 3: or any of these others in order to enrich yourself.
- 7:21Speaker 3: And it has to clarify that bill that there's no
- 7:23Speaker 3: presidential immunity because of course this isn't an official duty.
- 7:26Speaker 3: If you're engaged in emoluments, it's almost the definition in
- 7:30Speaker 3: monuments violations, it's almost the definition of private So that's
- 7:33Speaker 3: what I think we really need to focus on. That
- 7:35Speaker 3: there are these two emoluments clauses, but as is so
- 7:38Speaker 3: often the case, we don't have the ordinary There's constitutional
- 7:41Speaker 3: law and then there's ordinary law passed by Congress.
- 7:44Speaker 2: We need ordinary law to make it clear that this
- 7:47Speaker 2: is a crime.
- 7:47Speaker 1: So, in other words, you're going to make me talk
- 7:49Speaker 1: a like a Republican when they talk about hate crimes legislation.
- 7:52Speaker 1: There's already laws on the books, mister. Why do we
- 7:55Speaker 1: need more laws if there's already laws on the books.
- 7:57Speaker 3: But you're the bottom line is you know when yes,
- 8:00Speaker 3: Van says, you know or it's not just her, of course,
- 8:03Speaker 3: it's other prosecutors.
- 8:04Speaker 2: Prosecutors have to look at the laws on the books.
- 8:07Speaker 2: They tend to be weak.
- 8:08Speaker 3: There is no specific emoluments violation that is criminalized. Again,
- 8:13Speaker 3: it's in the Constitution, but the law that would penalize
- 8:16Speaker 3: that as part of criminal law just isn't there. So
- 8:19Speaker 3: they have to look, you know, for other more general
- 8:22Speaker 3: kinds of corruption. And as you say, it's not illegal
- 8:25Speaker 3: to be engaged in cryptocurrency, it's illegal is to use
- 8:27Speaker 3: the office. And you would think common sense would say, well,
- 8:30Speaker 3: of course that's illegal.
- 8:31Speaker 2: Of course we pass those laws. We haven't.
- 8:33Speaker 3: That's what I'm trying to say to our listeners. And
- 8:35Speaker 3: it's so desperate that we do it. The House Judiciary Committee,
- 8:39Speaker 3: Jamie Raskin, i believe, is one of the sponsors. There
- 8:42Speaker 3: is a bill to criminalize emoluments. It hasn't been brought
- 8:45Speaker 3: out onto the floor. And you know, one thing that
- 8:48Speaker 3: we need to do is force We're not going to
- 8:50Speaker 3: get a full vote on the floor, but we could.
- 8:52Speaker 3: There are maneuvers in order to force a vote on
- 8:55Speaker 3: whether or not to bring it to the floor.
- 8:57Speaker 2: And if Republicans want to vote.
- 8:58Speaker 3: Against it, I believe some would vote for it, then
- 9:01Speaker 3: let them do that. Let them vote for corruption, vote
- 9:04Speaker 3: for ability of a president to use his supposed immunity
- 9:09Speaker 3: in order to you know, make people poor while he will.
- 9:13Speaker 1: They will, and they'll call it freedom, and they'll call
- 9:15Speaker 1: it free speech. And they'll have a Supreme Court that
- 9:18Speaker 1: says that bribery is totally legal. You know, you got
- 9:21Speaker 1: me thinking, Professor, the Constitution. They anticipated foreign influence right
- 9:27Speaker 1: on our politicians big time. They did not anticipate cryptocurrency.
- 9:31Speaker 1: Does crypto expose weaknesses in our existing ethics framework? Because like,
- 9:37Speaker 1: this is the only casino where the House doesn't even
- 9:40Speaker 1: pretend you might win. This guy owns the chips, and
- 9:43Speaker 1: he owns the table, and he owns the slot machines.
- 9:45Speaker 1: I mean, you know, and then they'll sell you a
- 9:47Speaker 1: commemorative coin that says this is not a gabler device.
- 9:50Speaker 1: While you're losing your mortgage. I mean, it seems like
- 9:53Speaker 1: the founding Fathers had some holes in the system, and
- 9:56Speaker 1: crypto exploits it.
- 9:58Speaker 2: Well, I don't want to let them off the hook.
- 10:00Speaker 3: I think it's worse than that they didn't anticipate crypto,
- 10:03Speaker 3: because of course, when you're writing any legislation or you're
- 10:05Speaker 3: writing a constitution, you can't predict the technology.
- 10:09Speaker 2: They couldn't predict the Internet. They couldn't.
- 10:10Speaker 3: But yet there are crimes that were on the books
- 10:13Speaker 3: dating back to the eighteenth century that you could violate
- 10:15Speaker 3: on the Internet. If you use it in a murder conspiracy,
- 10:17Speaker 3: you know that there's not a hard problem there.
- 10:20Speaker 2: The problem is that what they didn't do, and it goes.
- 10:22Speaker 3: Beyond not anticipating crypto specifically, is they didn't pass laws
- 10:28Speaker 3: we haven't as a nation that criminalized the conduct of
- 10:32Speaker 3: doing things that would otherwise be illegal when you're abusing
- 10:35Speaker 3: the office, or at least they didn't do it in
- 10:37Speaker 3: the clean, clear way that this Emolument's Bill would do.
- 10:41Speaker 3: So that's why we've got to fill.
- 10:42Speaker 2: In their gap.
- 10:42Speaker 3: It's not that they weren't aware of the issue, and
- 10:45Speaker 3: so I have something to say about why we haven't
- 10:47Speaker 3: passed it, so that they put it into the constitution.
- 10:49Speaker 3: They're responding to the anti federalists who are like you know,
- 10:52Speaker 3: by the way, the anti federalists, the people who opposed
- 10:54Speaker 3: the constitution, people like Patrick Henry. They thought that the
- 10:57Speaker 3: criminality of this kind of a present and basically self
- 11:01Speaker 3: serving using the office for personal illegal gain was so
- 11:05Speaker 3: serious it would destroy democracy. He said, the president would
- 11:08Speaker 3: start with these kind of crimes, a bad president, a
- 11:11Speaker 3: criminal president, not a good one, and then eventually they
- 11:15Speaker 3: would destroy the republic, it would see in a kind
- 11:18Speaker 3: of putinesque way. That's what they predicted, that their criminality
- 11:21Speaker 3: was unchecked, and so why not go for it. This
- 11:24Speaker 3: is what Patrick Henry said, the American throne, that's the
- 11:27Speaker 3: language that he used, and he was saying, this thing
- 11:29Speaker 3: is dangerous, do not ratify. So what was the response
- 11:32Speaker 3: of those who defended the Constitution.
- 11:34Speaker 2: Well, we put it in there twice.
- 11:37Speaker 3: And I think this is what's so unfortunate that the
- 11:39Speaker 3: Framers and so much of our government rests on the
- 11:42Speaker 3: idea of a president basically being a good person, and
- 11:46Speaker 3: so he didn't recognize the threat.
- 11:48Speaker 2: And yes, that's naive.
- 11:49Speaker 3: It's been a huge mistake even after Nixon, Well what
- 11:52Speaker 3: about Nixon? People said, well, it was suey generous. It
- 11:55Speaker 3: was just one time.
- 11:56Speaker 2: Even jd. Vance said the crimes of water Gate weren't
- 12:00Speaker 2: a big deal.
- 12:01Speaker 1: They would oh what a shock. Yeah, boy at the
- 12:03Speaker 1: Nixon library too. But you know this is the thing, right, Like,
- 12:06Speaker 1: aren't we all a danger of becoming numb to conflicts
- 12:10Speaker 1: of interest because they're now so constant. I mean, what
- 12:14Speaker 1: is a little bribery matter if it's bribery twenty four
- 12:17Speaker 1: to seven, What is a little president profiting off the
- 12:19Speaker 1: office matter? When he's doing it every single day? I mean, like,
- 12:22Speaker 1: is there a constitutional danger if the American people just
- 12:26Speaker 1: decide that self dealing is inevitable and we shouldn't expect more.
- 12:32Speaker 2: Yeah.
- 12:32Speaker 3: I mean it's an amazing question, and it's one that
- 12:34Speaker 3: we've been focused on, and you know, my answer is
- 12:37Speaker 3: an unpleasant one, which is that we are becoming used
- 12:40Speaker 3: to it.
- 12:40Speaker 2: We have seen it.
- 12:41Speaker 3: There is a sort of sense among some of the
- 12:43Speaker 3: American public, partly because Trump's enablers have spread this that
- 12:48Speaker 3: everybody does stuff like this. This is just what billionaires do,
- 12:51Speaker 3: and it's just other billionaires. Maybe that he's you know,
- 12:54Speaker 3: winning against a negotiation. And what we failed to see
- 12:58Speaker 3: is that this is.
- 12:59Speaker 2: Not a democrat.
- 13:00Speaker 3: When a president is able to use the most powerful office,
- 13:03Speaker 3: not just in the country but in the world.
- 13:05Speaker 2: To enrich himself.
- 13:06Speaker 3: I'm going to just say something just to dramatize it,
- 13:09Speaker 3: but I think it's completely accurate. The president we know
- 13:12Speaker 3: admires Vladimir Putin, Well, what is Putin's government? It's an autocracy,
- 13:17Speaker 3: a dictatorship, but also one that is used to enrich himself.
- 13:22Speaker 3: He has no problem collaborating with the oligarchs in order
- 13:25Speaker 3: to siphon all the resources of Russia into his pockets.
- 13:29Speaker 2: And the President of.
- 13:30Speaker 3: The United States, and I believe his family as well,
- 13:32Speaker 3: see that, and they think that's our business model. We
- 13:36Speaker 3: can also become the richest people in the world. Let's
- 13:38Speaker 3: talk about the amounts of money. Hundreds of millions, billions
- 13:42Speaker 3: of dollars.
- 13:43Speaker 1: Do you want America to fall behind, professor? Do you
- 13:45Speaker 1: want America to fall behind in billionaires who don't care
- 13:48Speaker 1: about the working class? Because China will be ahead of
- 13:51Speaker 1: us if we don't create more billionaires who don't care
- 13:53Speaker 1: about the world. I mean, this is the genius of
- 13:56Speaker 1: the Griff Corey, a normal scammer disappears after to making
- 14:00Speaker 1: your money.
- 14:01Speaker 2: Trump just stays.
- 14:01Speaker 1: There like he's just there, like these these Maga friends
- 14:05Speaker 1: spent all these years telling us that Trump is playing
- 14:07Speaker 1: four D chess. Turns out they were the pawns they're
- 14:12Speaker 1: paying for the chess board. I just got to ask
- 14:14Speaker 1: you one last question on this before I get physically ill.
- 14:17Speaker 1: Does history suggest, Corey, that constitutional guardrails will eventually strengthen
- 14:24Speaker 1: after periods of sustained corruption or have we never seen
- 14:28Speaker 1: a period of corruption like this.
- 14:30Speaker 3: I want to answer that, but first I'm going to
- 14:32Speaker 3: just make a comment on your last comment, which is
- 14:35Speaker 3: that the president isn't a race, and it's not a
- 14:39Speaker 3: race on behalf of the American public. It's in the
- 14:41Speaker 3: race with another autocrat, Vladimir Putin, to see who can
- 14:44Speaker 3: be the richest person in the world. And so far
- 14:46Speaker 3: Putin is way ahead. I don't mean there's any doubt
- 14:49Speaker 3: about that. But Trump is catching up. And you know,
- 14:52Speaker 3: by the way, the money that we're talking about that
- 14:54Speaker 3: was reported in the New York Times. The journalism that
- 14:57Speaker 3: we're using here is reported gains, and there are, of
- 15:01Speaker 3: course all sorts of unreported gains. One This is not
- 15:05Speaker 3: saying we have the evidence yet, but one suspicious thing
- 15:07Speaker 3: is the trading account that keeps shorting oil perfectly as
- 15:12Speaker 3: the president announces, for instance, to cease fire and it's
- 15:16Speaker 3: time to you know, for oil to go down, and
- 15:18Speaker 3: whoever's placing that bet to just make a fortune. And
- 15:21Speaker 3: these are not small amounts of money. And my understanding
- 15:24Speaker 3: is it's continually the same account is that the president
- 15:27Speaker 3: is one of his family. Well, all these schemes that
- 15:30Speaker 3: we don't know about add to the well the closeness
- 15:33Speaker 3: that he's getting to putin on the question of hope,
- 15:38Speaker 3: which I appreciate because we're always trying to do both. Absolutely,
- 15:42Speaker 3: the way that we get the kind of laws that
- 15:44Speaker 3: I'm talking about come from moments of crisis. And that's
- 15:47Speaker 3: what I've written about extensively that in these dark periods, Yes,
- 15:52Speaker 3: there is a threat that we won't recover. Democracy is fragile.
- 15:55Speaker 3: But if we are able to galvanize support by saying
- 15:59Speaker 3: no kings, no, no using the office to enrich yourself
- 16:03Speaker 3: as a reaction, we might get the laws on the
- 16:06Speaker 3: books that we need.
- 16:07Speaker 2: But you know, we didn't do it during Biden.
- 16:09Speaker 3: We need some Moluments clause to have teeth, and that
- 16:13Speaker 3: means that the next president of the United States, whoever
- 16:16Speaker 3: it is, hopefully.
- 16:17Speaker 2: Not Donald Trump or not JD.
- 16:19Speaker 3: Vance, will have the wherewithal the virtue in the sense
- 16:24Speaker 3: of the Framers method that they would abide by the
- 16:27Speaker 3: oath to signs, but they will do it under pressure.
- 16:32Speaker 1: Yeah, yeah, good for you for getting the words Jdvans
- 16:36Speaker 1: and virtue in the same sentence. Story. Someone's drinking game
- 16:40Speaker 1: just got made really special. You know what this is
- 16:43Speaker 1: so depressing. Let's let's let's talk about cash. Buttell no
- 16:46Speaker 1: I like, I got to tell you something. This ongoing
- 16:51Speaker 1: obsession with this individual president of somehow getting many individuals
- 16:58Speaker 1: to go with his lie that he on the state
- 17:00Speaker 1: of Georgia in twenty twenty, it's still going on. The
- 17:03Speaker 1: FBI is sending hundreds of analysts to dig into the
- 17:07Speaker 1: Georgia twenty twenty election probe. It's been a priority investigation
- 17:13Speaker 1: for what happened six years ago because Donald Trump lost
- 17:17Speaker 1: and he needs to change history. Just like they're scraping
- 17:21Speaker 1: the achievements of African Americans off of the Pentagon website,
- 17:25Speaker 1: just like they're getting our historical national parks and landmarks
- 17:29Speaker 1: to remove unpleasant realities about slavery and ethnic cleansing of
- 17:33Speaker 1: Indigenous people. These guys want to erase history. They want
- 17:37Speaker 1: to erase the reality the Trump really lost. So the
- 17:39Speaker 1: FBI is assigning hundreds of analysts to reinvestigate a six
- 17:43Speaker 1: year old law. At this place, they will solve the
- 17:45Speaker 1: assassination of Jimmy Hoffa by labor day. And they're working weekends,
- 17:49Speaker 1: they're working holidays. Somewhere, Corey, like an unsolved bank robbery,
- 17:53Speaker 1: is saying, hey, whatever, you guys got a minute. But like,
- 17:55Speaker 1: if this many people investigated climate change or cancer or
- 17:59Speaker 1: all Alzheimer's, think about all the Nobel prizes Donald Trump
- 18:03Speaker 1: could have. Like, from a constitutional perspective, how unusual is
- 18:08Speaker 1: it that the executive branch is making the FBI reopen
- 18:12Speaker 1: investigations connected to past elections?
- 18:16Speaker 2: Wow? I mean, just to begin with and to state something.
- 18:20Speaker 3: That I believe all of our viewers know, there really
- 18:23Speaker 3: is no evidence at all of the kind of election
- 18:26Speaker 3: fraud that Donald Trump is alleging. And there was case
- 18:29Speaker 3: after case in which they tried to show this kind
- 18:33Speaker 3: of fraud and they were totally unsuccessful. There was no
- 18:35Speaker 3: court in the United states that found that there was
- 18:38Speaker 3: election fraud on a level anywhere close to affect the election.
- 18:43Speaker 3: So now he's saying to the FBI something, and I
- 18:46Speaker 3: just want to recall one detail because it's a perfect
- 18:49Speaker 3: illustration of what's.
- 18:50Speaker 2: Going on now. Of course, he called the Secretary of
- 18:52Speaker 2: State of Georgia demanding that he find the exact number
- 18:57Speaker 2: of votestes to win Georgia. What's the number? Jo? Wow? Amazing.
- 19:05Speaker 2: So now Trump is doing the exact same thing.
- 19:07Speaker 3: The reporting shows that he is ordering the FBI to
- 19:12Speaker 3: go and find fraud that isn't there.
- 19:15Speaker 2: Well, for what purpose? To vindicate his lie and to
- 19:18Speaker 2: you know, not.
- 19:19Speaker 1: Just to vindicate his fragile, unmanly ego, sir.
- 19:23Speaker 3: Yes, and to rewrite history. I mean, I didn't want
- 19:26Speaker 3: to love at that point either.
- 19:27Speaker 2: I mean, it really isn't just about this specific thing.
- 19:30Speaker 2: It's about all of it, about.
- 19:31Speaker 1: Turning streaming screaming toddler. Give the screaming toddler the iPad
- 19:35Speaker 1: so he'll shut up, right, And that's you know.
- 19:39Speaker 3: I'll talk about this more at a future date. But
- 19:41Speaker 3: I was at an amazing event with a lot of
- 19:43Speaker 3: very high level former Department of Justice officials people who
- 19:47Speaker 3: of course were working all the time with the FBI.
- 19:50Speaker 3: And you know, everyone is just flabbergasted because the corruption
- 19:54Speaker 3: that runs throughout this department, throughout the Department of Justice,
- 19:57Speaker 3: throughout the FBI. Now because of the top coming down,
- 20:02Speaker 3: how is it is it even possible to work in
- 20:04Speaker 3: the Department of Justice in the FBI.
- 20:06Speaker 2: This was one of the discussion topics.
- 20:08Speaker 1: As long as you don't care about as long as
- 20:10Speaker 1: you don't care about accomplishing anything. But this is why
- 20:12Speaker 1: he hired this child man to run the FBI. He
- 20:15Speaker 1: doesn't want an adult capable of critical thinking. He wants
- 20:18Speaker 1: this obedient, alcoholic child man.
- 20:20Speaker 2: Party.
- 20:20Speaker 3: Bro Dude, you've really got to emphasize that point, John,
- 20:23Speaker 3: You're bring up something so important, and this did come
- 20:25Speaker 3: from a lot of the DOJ officials, and it is
- 20:28Speaker 3: a message that again has to be you know, it's
- 20:31Speaker 3: partly legal, it's partly about good governance, but it also
- 20:34Speaker 3: is our politics that we have to be able to
- 20:36Speaker 3: frame the problem here. Isn't just you know, using the
- 20:40Speaker 3: FBI to waste resources on something that doesn't exist. It's
- 20:44Speaker 3: wasting them compared to what I mean, the FBI is
- 20:47Speaker 3: supposed to be doing things like going after sex traffickers,
- 20:50Speaker 3: an issue that the Republican and Democratic.
- 20:52Speaker 2: Party cares about.
- 20:53Speaker 3: But how are you going to do that if you
- 20:55Speaker 3: siphon off all the FBI agents. I mean, this is
- 20:58Speaker 3: a massive number of into an investigation for something that
- 21:02Speaker 3: doesn't exist. So, as with the cryptocurrency scheme, this is
- 21:06Speaker 3: not a harmless corrupt action. There is a direct harm
- 21:10Speaker 3: to the people who were suffering from crimes that there
- 21:13Speaker 3: are laws on the books to prevent and that there
- 21:15Speaker 3: is an FBI that's supposed to go after it.
- 21:18Speaker 1: Yeah. I just want to say at this point, the
- 21:19Speaker 1: twenty twenty election has now outlasted most streaming series. This
- 21:24Speaker 1: thing has had more sequels than the Fast and Furious movies. Corey,
- 21:27Speaker 1: I'm so tired of hearing about this. But president's appoint
- 21:31Speaker 1: FBI directors. Where should the constitutional boundaries be between presidential
- 21:37Speaker 1: control and investigative independence. You've talked so much about how
- 21:40Speaker 1: dangerous it is to weaponize government institutions. I mean, how
- 21:44Speaker 1: would constitutional scholars distinguish between oversight and political retaliation? And
- 21:51Speaker 1: then this, which I think is technically called daffy shit.
- 21:55Speaker 3: I mean, look within the Department of Justice, the FBI
- 21:59Speaker 3: is a part of it, right, And not just the FBI,
- 22:02Speaker 3: but the entire Department of Justice has been turned into
- 22:06Speaker 3: Trump's personal tool. And what Todd Blanche, the acting Attorney General,
- 22:09Speaker 3: has said, is under this wacky theory of the unitary executive.
- 22:13Speaker 3: By the way the people created this theory, I would
- 22:15Speaker 3: never in a million years have gone this far. They
- 22:18Speaker 3: thought that the Attorney General, of course, was supposed to
- 22:20Speaker 3: be independent. Even defenders of the unitary executive defended Attorney
- 22:25Speaker 3: General Levy, who made it a point to say, you know,
- 22:28Speaker 3: even talking to the president's bad. Remember the conversation on
- 22:32Speaker 3: the tarmac and whether it Rretta Lynch, the President speak
- 22:37Speaker 3: to the Attorney general?
- 22:38Speaker 1: That terrified horror. How scary that was. Remember how scary
- 22:41Speaker 1: that was. That was like a trans girl wanting to
- 22:44Speaker 1: play soccer.
- 22:44Speaker 2: That was like, I mean, that was as I can suit.
- 22:48Speaker 1: All right, we got to take a break, or when
- 22:50Speaker 1: he's gonna yell at us. But I just want to
- 22:52Speaker 1: thank you, professor. This is just they're still treating twenty
- 22:54Speaker 1: twenty like it's a cold case. And the problem is
- 22:57Speaker 1: that case got solved while it was still very warm.
- 23:00Speaker 1: Let's take a quick break and when we come back
- 23:02Speaker 1: some more fallout from the end of the Supreme Court term,
- 23:05Speaker 1: including some potential good news for our friend Egen Carroll.
- 23:09Speaker 1: This is the Oath in the Office. These are difficult
- 23:14Speaker 1: times and if you believe in justice, progress and democracy,
- 23:17Speaker 1: the news you read and listen to can be pretty depressing.
- 23:20Speaker 1: And that's why there's a new podcast called good News
- 23:22Speaker 1: for Lefties and America Get this every day. It features
- 23:25Speaker 1: positive stories for progressive listeners because no matter how disturbing
- 23:29Speaker 1: or horrific or soul crushing the headlines might be, there's
- 23:32Speaker 1: still always hope that we can build on for a
- 23:35Speaker 1: better tomorrow. We've seen it happen before. Good News for
- 23:38Speaker 1: Lefties in America listen on this platform at good News
- 23:40Speaker 1: for Lefties dot com, or wherever fine podcasts are heard.
- 23:48Speaker 1: Welcome back to the Oath in the Office. I'm John Fiegel,
- 23:50Speaker 1: saying Professor Corey Bretschneier is with us and Professor in
- 23:53Speaker 1: a six' to three. Decision as you, know The Supreme
- 23:56Speaker 1: court rule that states may ban transgender ears and women
- 24:01Speaker 1: from participating in female sports teams at publicly funded. Schools
- 24:06Speaker 1: they're leading restrictions in twenty nine states fully intact this
- 24:09Speaker 1: wasn't a huge. SURPRISE i do want to point out
- 24:11Speaker 1: that WHILE i respect protecting the integrity of girls', sports
- 24:14Speaker 1: Transgender americans are under one percent of the. Population transgender
- 24:20Speaker 1: kids who compete in school sports are a tiny fraction
- 24:24Speaker 1: of under one percent of the Popular you are statistically
- 24:27Speaker 1: more likely to know someone who has been struck by
- 24:30Speaker 1: lightning than know someone who's been directly affected by this.
- 24:34Speaker 1: Issue And corey, like this is still the defining political
- 24:37Speaker 1: battle of our. AGE i, mean housing costs, explode healthcare,
- 24:41Speaker 1: costs childcare cost the cost of, eggs gasoline every. Election it's,
- 24:45Speaker 1: like forget all that we got to Stop becky from
- 24:48Speaker 1: running into four hundred. Meters SO i have so many
- 24:51Speaker 1: questions about. This the liberal justice has agreed The title
- 24:54Speaker 1: nine itself permits sports to be separated by biological. SEX
- 24:58Speaker 1: i think the real disagreement was over equal. Protection can
- 25:01Speaker 1: you explain that distinction for our?
- 25:03Speaker 3: Listeners, well you, KNOW i unpacked this case because it is,
- 25:06Speaker 3: complicated and it is a lot of it is dependent
- 25:09Speaker 3: on the facts of any given. Case and let me
- 25:12Speaker 3: just say first what the case is about and what
- 25:14Speaker 3: the majority, did and Then i'll talk about the complicated
- 25:18Speaker 3: ways that the liberals on The court have dissented and
- 25:21Speaker 3: disagreed for sensible. Reason so what the majority, did and
- 25:25Speaker 3: it's not going to come to a surprise to anyone
- 25:27Speaker 3: THAT i think this was a really wrongly decided, opinion
- 25:31Speaker 3: is they essentially cut off the protection two protections for
- 25:34Speaker 3: transgender kids who want to claim that they were discriminated
- 25:38Speaker 3: against in sports and let's leave, aside you know what
- 25:41Speaker 3: various kinds of discrimination might have.
- 25:43Speaker 2: Happened and what.
- 25:44Speaker 3: They said was that both the Equal Protection, clause which
- 25:47Speaker 3: is in the Fourteenth amendment of The, constitution and the
- 25:50Speaker 3: specific law that was passed to protect gender equality in,
- 25:54Speaker 3: Sports title nine don't apply to transgender. Kids that they
- 25:59Speaker 3: can't use use these laws in order to, say, HEY
- 26:02Speaker 3: i was discriminated. Against and that's before we even get
- 26:05Speaker 3: to the. Facts they're just saying that. Period that's not
- 26:07Speaker 3: what it's.
- 26:07Speaker 2: About.
- 26:08Speaker 3: Now what's bad about, that in my, opinion and weird
- 26:11Speaker 3: is That Justice gorsuch had an opinion that The Supreme
- 26:14Speaker 3: court endorsed the majority of The court that said when
- 26:18Speaker 3: the phrase sex discrimination is, used that you.
- 26:21Speaker 2: Can't discriminate on the basis of.
- 26:23Speaker 3: Sex for, instance in the nineteen sixty Four Civil Rights
- 26:26Speaker 3: acts protection against job discrimination employment discrimination when it says
- 26:32Speaker 3: you can't discriminate.
- 26:33Speaker 2: In the employment context on the basis of. Sex remember
- 26:35Speaker 2: this Is Justice gorsage and this Conservative Supreme. Court they, said, look,
- 26:39Speaker 2: yeah that does apply to transgender. People because what is
- 26:43Speaker 2: discrimination against transgender people is, discrimination arbitrary discrimination on the
- 26:47Speaker 2: basis of. Sex your transgender status is a form of
- 26:52Speaker 2: sex based. Discrimination that's their.
- 26:53Speaker 3: Argument so, Okay so now is it possible that the
- 26:57Speaker 3: discrimination against the transgender kid violates the ban on discrimination
- 27:02Speaker 3: based on? Sex both In title nine, now not the
- 27:05Speaker 3: nineteen sixty Four Civil Rights, act this is protection in
- 27:08Speaker 3: sports past later and under the Equal Protection. Clause now
- 27:12Speaker 3: The court, saying, no absolutely, not it. Doesn't sex doesn't
- 27:14Speaker 3: have anything to do with transgender. Status so you, know
- 27:18Speaker 3: why are they saying? That and it's just a flabbergasting you,
- 27:22Speaker 3: know there's not a good. Answer Justice gorsich tries to
- 27:25Speaker 3: square the. CIRCLE i think most of the justices who
- 27:28Speaker 3: voted this, way Including, kavanaugh didn't agree With.
- 27:31Speaker 2: Bostock that's the case about. Employment trying to your mind.
- 27:34Speaker 1: Him there's not a lot of mystery why they're doing
- 27:36Speaker 1: what they're. Doing so what's the.
- 27:38Speaker 3: Response the response is, subtle and it took a couple of.
- 27:40Speaker 3: Forms the, first the, best to my, mind Was Justice,
- 27:43Speaker 3: jackson who, said, yes both the Equal Protection clause protects
- 27:47Speaker 3: transgender people in some contexts just as it protects against sex.
- 27:51Speaker 3: Discrimination and, also you, know this is her, Descent Justice,
- 27:55Speaker 3: JACKSON i Think Soda mayor on this, point this is
- 27:58Speaker 3: what you're referring.
- 27:58Speaker 2: To doesn't, agree but she, Says, look the statute says
- 28:01Speaker 2: on the basis of, sex the same as the employment,
- 28:03Speaker 2: Discrimination so of course it's. Protection they're not saying anything.
- 28:07Speaker 3: About this particular case that involves discrimination against a transgender
- 28:12Speaker 3: person who never hit male puberty and a transgender.
- 28:17Speaker 2: Woman.
- 28:17Speaker 3: Right and yet while they're, saying listen to the modesty
- 28:20Speaker 3: of what they're, saying look into the case because and, SORRY.
- 28:23Speaker 2: I know that they don't want to get.
- 28:24Speaker 1: It they don't want to do. That go, ahead go.
- 28:26Speaker 2: AHEAD i just want to get it out last. Yea,
- 28:28Speaker 2: YEAH i know it's a, Lot.
- 28:28Speaker 1: John, sorry, no, no, no BECAUSE i GOT i gotta talk
- 28:31Speaker 1: to you about.
- 28:31Speaker 3: This go, ahead because it's a complicated, issue as the court.
- 28:34Speaker 2: Says but, look.
- 28:35Speaker 3: Their point is that maybe and we can't know this
- 28:38Speaker 3: without looking into the, situation that it's arbitrary that there is,
- 28:42Speaker 3: no for, instance physical difference between somebody who didn't go
- 28:45Speaker 3: through male puberty and a woman who is not, transgender
- 28:50Speaker 3: and in that instance that this is an arbitrary. Distinction,
- 28:53Speaker 3: SO i, mean here's the point all the liberals are
- 28:56Speaker 3: saying is we need more information and don't cut off
- 28:59Speaker 3: the possibility that this is the kind of discrimination that.
- 29:02Speaker 2: We saw in the job. Context that was a. Lot
- 29:04Speaker 2: please help me clarify, This, John.
- 29:06Speaker 1: Okay, so just As Sonya saidomayor argued that the majority
- 29:10Speaker 1: was ignoring the actual facts of this plaintiff's, situation, right
- 29:14Speaker 1: including that she you, know she transitioned before male puberty
- 29:19Speaker 1: and she allegedly lacked any athletic. Advantage, AGAIN i do
- 29:23Speaker 1: want to point out that trans, WOMEN i think are
- 29:25Speaker 1: the only athletes who take drugs to be physically. WEAKER
- 29:28Speaker 1: i think they're the only athletes who take drugs to
- 29:30Speaker 1: be physically. Weaker but it seems the, court to what you,
- 29:35Speaker 1: said is moving away from individualized constitutional analysis because they
- 29:42Speaker 1: just want to have some broad rules about categories. Here
- 29:45Speaker 1: is that fair to?
- 29:46Speaker 3: SAY i think a way to put it is they
- 29:48Speaker 3: opened the door which justice and the law demand to
- 29:52Speaker 3: the possibility that there is discrimination against transgender people. Period
- 29:57Speaker 3: and in the employment, context they said that pretty, Clearly,
- 30:00Speaker 3: well if there's discrimination, there there might also be in
- 30:03Speaker 3: this other area of women's. Sports you, know the possibility, that,
- 30:07Speaker 3: yes there is arbitrary discrimination going on here against transgender.
- 30:10Speaker 3: People how can we know that without looking at the.
- 30:13Speaker 3: Facts and you, know they're, saying maybe there are facts
- 30:16Speaker 3: in which it's not arbitrary, discrimination but in this case
- 30:19Speaker 3: it might. Be and we're not saying it. Is what
- 30:22Speaker 3: we're saying we need to know.
- 30:23Speaker 2: More, yeah and what they're.
- 30:24Speaker 3: Resisting and this is WHY i think it's common. Sense
- 30:27Speaker 3: is the kind of categorical shutting off of the.
- 30:30Speaker 1: Cab but, again like to, Me i'm, SORRY i don't
- 30:33Speaker 1: really separate this Ideological Supreme court from the comment, Section,
- 30:38Speaker 1: COREY i really. DON'T i know What Brett kavanaugh spent
- 30:42Speaker 1: his time doing Under GEORGE. W. Bush this issue affects
- 30:45Speaker 1: a vanishingly small number of, people right and yet somehow
- 30:49Speaker 1: this issue gets more campaign advertising than, wages, unions prescription,
- 30:54Speaker 1: drugs or affordable housing. Combined right, now that's not an.
- 30:59Speaker 1: Accident that's because culture war issues are politically. Magical you
- 31:03Speaker 1: don't have to build, anything you have to pass any complicated.
- 31:06Speaker 1: Laws you just have to find a. Villain and this
- 31:08Speaker 1: is what politics. Loves you find a group that's small
- 31:11Speaker 1: enough that Most american voters won't actually know one of, them, Right, Jews,
- 31:16Speaker 1: muslims gay, people now it's transgender. Folk step, two you
- 31:20Speaker 1: convince everyone else this, tiny powerless group is the central
- 31:23Speaker 1: existential threat Facing. America and step, three you know your
- 31:27Speaker 1: fundraise off. It you don't have to fix. Healthcare you
- 31:30Speaker 1: just keep people angry about locker. Rooms you don't have
- 31:32Speaker 1: to explain why billionaires keep getting tax breaks and you
- 31:36Speaker 1: can't afford. Rent you just point at the high school track.
- 31:38Speaker 1: Meet make sure everyone's mad at teenagers in another state playing.
- 31:42Speaker 1: Sports this is the greatest magic trick in. Politics and
- 31:45Speaker 1: every election, cycle we know there's always a new existential.
- 31:48Speaker 1: Emergency critical race, theory drag, shows, caravans. Pronouns, right there's
- 31:54Speaker 1: the greatest dangers to the world's richest country is always
- 31:57Speaker 1: some group that can afford a. Lawyer SO i don't
- 32:00Speaker 1: really take any surprise by the fact that these aristocrats
- 32:04Speaker 1: on The Supreme court don't really have their arguments. Straight
- 32:08Speaker 1: they're just going with the tribal, mentality and the tribe
- 32:12Speaker 1: doesn't consider discrimination against Transgender americans to be. Discrimination, well here's.
- 32:17Speaker 3: The i'm certainly not going to disagree with you About Brett,
- 32:20Speaker 3: kavanaugh WHO i don't really think is a. JUDGE i
- 32:22Speaker 3: think he's a political actor who's just sort of out
- 32:24Speaker 3: of his depth and writing opinions that aren't based in the.
- 32:27Speaker 1: Laws way too, Polite but, Okay i'll say.
- 32:31Speaker 3: WHY i think it's a little different with The court
- 32:34Speaker 3: as a whole and with in Particular Justice. Corsage and
- 32:37Speaker 3: here's the thing that makes it not just ordinary. Politics
- 32:40Speaker 3: and you, know of course that's what they're.
- 32:42Speaker 2: Saying and it's a.
- 32:43Speaker 3: Case you, know WHEN i was teaching a class about
- 32:46Speaker 3: how to interpret ordinary laws passed By, congress a class
- 32:49Speaker 3: Called legislation And, REGULATION i would teach in depth this
- 32:53Speaker 3: Case bostock about the nineteen sixty four civil rights ban
- 32:57Speaker 3: on sex and a lot of the, students some of
- 33:01Speaker 3: whom were going to work for organizations like lad who
- 33:04Speaker 3: are going to really devote themselves to gay and transgender,
- 33:07Speaker 3: rights really found it hard but also encouraging to read
- 33:12Speaker 3: this decision Because it was one of the moments in
- 33:14Speaker 3: which The Supreme, court led again by a Conservative Justice,
- 33:17Speaker 3: gorsich used the method that they claimed to. Use the
- 33:20Speaker 3: method is look at the words on the page of
- 33:24Speaker 3: the law and enforce. It and the word says don't
- 33:27Speaker 3: discriminate against sex And gorstag says so, plainly transgender discrimination
- 33:32Speaker 3: is sex.
- 33:32Speaker 2: Discrimination and so it was a moment of the.
- 33:35Speaker 3: Law so they've already said that the problem is now
- 33:38Speaker 3: they're just taking it back.
- 33:39Speaker 2: Now.
- 33:40Speaker 3: WHY i definitely believe that the reason is the political
- 33:43Speaker 3: fallout and. Pressure Justice gorsich got a lot of grief for.
- 33:47Speaker 3: It The court as a whole got a lot of.
- 33:49Speaker 3: Grief the culture war has only gotten more, intense and
- 33:52Speaker 3: now all of a sudden they've given up the. Battle
- 33:53Speaker 3: kavanaugh doesn't surprise, me but The court as a, Whole
- 33:56Speaker 3: gorsuch in, particular what.
- 33:58Speaker 2: Are you, doing? Man are you just giving up on the.
- 34:00Speaker 2: Law you're not judging if you're caving into the cultural?
- 34:03Speaker 1: War, YEAH i think culture war is the fuel this
- 34:06Speaker 1: movement runs, On. Professor but you, know you keep on
- 34:08Speaker 1: hoping For, gorsich you keep, on you keep on, Hoping
- 34:11Speaker 1: and congratulations to all of. Them you guys successfully defeated
- 34:15Speaker 1: someone you've never met from competing in junior varsity cross.
- 34:18Speaker 2: Country.
- 34:19Speaker 1: Wow history will record this was the decisive battle for
- 34:22Speaker 1: The american middle. Class All, right we have to talk
- 34:25Speaker 1: about The Egene carroll. Verdict, corey we didn't get to
- 34:27Speaker 1: talk about. It but the, biggest one of the biggest
- 34:29Speaker 1: stories for me was the fact that The Supreme court
- 34:32Speaker 1: didn't think there was a story here and they will
- 34:35Speaker 1: not consider the five million dollar verdict Against Donald. TRUMP
- 34:38Speaker 1: i thought this was. Huge this leaves intact the federal
- 34:42Speaker 1: Appeals court ruling that upheld the jury finding in twenty twenty,
- 34:46Speaker 1: three which conclude That trump is an adjudicated, rapist that
- 34:50Speaker 1: he did sexually assault this woman and then defame. HER
- 34:54Speaker 1: i thought this was a bigger deal than you. Did
- 34:56Speaker 1: the fact that they denied review without, DISSENT i, mean legal,
- 35:00Speaker 1: speaking doesn't this say that this court has no problem
- 35:05Speaker 1: With Donald trump's adjudication as a sexual. Offender, Well i'll say.
- 35:10Speaker 3: The good, news which is that you, know they they
- 35:13Speaker 3: didn't look at the argument That trump was, making which
- 35:17Speaker 3: was essentially that because in the lower court that The
- 35:21Speaker 3: Access hollywood tape was, introduced that that was you, know
- 35:24Speaker 3: so prejudicial to the case that that's Why trump.
- 35:28Speaker 2: Lost and you know that was.
- 35:30Speaker 3: Rejected And trump's argument was The Supreme court get in,
- 35:34Speaker 3: here and you, know part of the, IDEA i Think
- 35:36Speaker 3: trump's idea and his lawyers as, well it's the presidence
- 35:38Speaker 3: and they really owe him a. Favor he put a
- 35:41Speaker 3: lot of those people, there and so they didn't do,
- 35:43Speaker 3: that And i'm with. YOU i think that's a good.
- 35:45Speaker 3: Thing it shows that, they you, know there's some, integrity
- 35:48Speaker 3: and it shows That trump's case was so weak that
- 35:50Speaker 3: no way were they going to do, it even though
- 35:52Speaker 3: you know that there might have been pressure from the
- 35:54Speaker 3: executive on them to do. It BUT i don't want
- 35:56Speaker 3: to go too, far AND i want to try to
- 35:58Speaker 3: always be precise on.
- 35:59Speaker 1: This it's very, important very, important and the fact that
- 36:02Speaker 1: if the court refuses to hear a, case it doesn't
- 36:05Speaker 1: mean that it agrees with the lower court.
- 36:07Speaker 2: Exactly it really.
- 36:08Speaker 3: Doesn't the court has a and you, know this is
- 36:10Speaker 3: maybe something that we should look, at but the court
- 36:13Speaker 3: has total discretion in the cases that it, takes unlike
- 36:17Speaker 3: the other courts of, appeals and it engages in a
- 36:19Speaker 3: process you apply for writ of circherai or, sert and
- 36:23Speaker 3: the court.
- 36:24Speaker 2: Can really just, decide you, know we want to take
- 36:26Speaker 2: it or.
- 36:26Speaker 3: Not and part of what they're saying sometimes in the
- 36:30Speaker 3: refusal to take a, case the denial of cert is,
- 36:33Speaker 3: well you, know it might have been, wrong but it
- 36:35Speaker 3: wasn't so wrong that we're going to spend our time on.
- 36:37Speaker 3: It or they might have been saying there was no
- 36:40Speaker 3: real deep issue of, law and we have so many
- 36:42Speaker 3: more important cases that we want to focus, on so
- 36:44Speaker 3: we can't read too much into.
- 36:45Speaker 1: It, Okay, well AND i do want to point out
- 36:48Speaker 1: That trump still faces review of the much larger eighty
- 36:50Speaker 1: three million Dollar Egene carol. Judgment but you, know one
- 36:54Speaker 1: quick thing on this. One trump's lawyers argue that the
- 36:58Speaker 1: Access hollywood tape and the testimony from all those other
- 37:01Speaker 1: women where they said That trump did what he brags
- 37:04Speaker 1: on tape that he likes to, do that that improperly
- 37:09Speaker 1: influenced the. Jury why did the appellate courts conclude that
- 37:13Speaker 1: evidence was? Admissible?
- 37:14Speaker 2: Professor you, know the loss of evidence are very, complicated
- 37:19Speaker 2: and you, know if the Court Supreme court would have taken,
- 37:21Speaker 2: this we would have spent a lot of time looking.
- 37:23Speaker 3: At whether or not for, instance it was. Prejudicial that's
- 37:25Speaker 3: the argument that you. Can't, basically there are rules of
- 37:28Speaker 3: evidence that keep you from being biased in one case
- 37:32Speaker 3: by considering something that you.
- 37:33Speaker 2: Did bad in another.
- 37:34Speaker 3: Case and you, know that's sort of a common sense,
- 37:37Speaker 3: rule and we'd have to look, at you, know those
- 37:39Speaker 3: arguments on both sides about whether it was prejudicial or.
- 37:42Speaker 2: NOT i haven't done that. WORK i don't want to
- 37:44Speaker 2: claim to know the.
- 37:45Speaker 3: DETAILS i don't need to because The Supreme court hasn't
- 37:48Speaker 3: taken it and it.
- 37:49Speaker 2: Stands and you, know here's the.
- 37:51Speaker 3: Point even if it was prejudicial and it might have
- 37:54Speaker 3: been a, mistake that's not enough to show that it
- 37:56Speaker 3: was such a big mistake that it impacted the. Outcome
- 37:59Speaker 3: AND i think that one reason why we might guess
- 38:02Speaker 3: that The Supreme court hasn't taken this case that they
- 38:04Speaker 3: just don't think it was that.
- 38:06Speaker 2: Important.
- 38:07Speaker 3: THERE i do want to say something about one of
- 38:09Speaker 3: the big picture, issues just to. Notice notice there's no
- 38:12Speaker 3: real immunity claim right That, Trump i'm sure you, know
- 38:15Speaker 3: claims immunity for, everything thinks he's beyond the. Law but
- 38:19Speaker 3: the immunity case carves Out trump versus The United states
- 38:23Speaker 3: immunity from prosecution or from liability for official.
- 38:28Speaker 2: Acts, now this is obviously not an official act because
- 38:32Speaker 2: it happened, before way before he was exactly The United,
- 38:35Speaker 2: states and so it upholds he is a sitting.
- 38:38Speaker 3: President but this upholds the decision In clinton Versus jones
- 38:41Speaker 3: that found That Bill clinton could be found liable for
- 38:44Speaker 3: his sexual harassment Of Paula jones even though he was
- 38:47Speaker 3: a sitting. President so you know that shows anyway that
- 38:50Speaker 3: this immunity, case although it's really, bad don't get me
- 38:53Speaker 3: wrong that it's not.
- 38:54Speaker 2: An absolute immunity For Donald.
- 38:56Speaker 1: Trump All, right we got to take a quick. Break
- 38:58Speaker 1: but when we come, back the greatest political beef of modern,
- 39:02Speaker 1: times The Supreme court Versus Nina, todenberg it gets. Ugly
- 39:07Speaker 1: this IS npr doing some crips and blood stuff. Here
- 39:10Speaker 1: we'll be back in just a. Moment this is the
- 39:11Speaker 1: oath in The.
- 39:12Speaker 4: Office hey, All Clenn kirschner. Here, FRIENDS i hope you'll
- 39:18Speaker 4: join me on my audio, Podcast Justice. Matters we talk
- 39:22Speaker 4: about not only the legal issues of the, day but
- 39:25Speaker 4: we also talk about the need to reform ethics in our.
- 39:29Speaker 1: Government here's one.
- 39:30Speaker 4: Example the oath of, office you, know the ONE i
- 39:34Speaker 4: do solemnly swear to support and defend The constitution against all,
- 39:37Speaker 4: enemies foreign and. Domestic let's add twenty two words to
- 39:42Speaker 4: that oath, quote AND i will promptly report any instances
- 39:47Speaker 4: of crime and or corruption by government officials and employees
- 39:52Speaker 4: of Which i've become. Aware, friends our democracy is worth fighting.
- 39:58Speaker 4: For join us in this, fight because justice. Matters look
- 40:06Speaker 4: for justice matters wherever you ordinarily find your.
- 40:09Speaker 1: Podcasts welcome back to the oath in the, Office. COREY
- 40:17Speaker 1: i want to wrap up with this very strange, story
- 40:20Speaker 1: but it's, ACTUALLY i think a good. STORY Npr Legal affairs,
- 40:23Speaker 1: correspondent veteran, journalist iconic, broadcaster Someone i've grown up, Loving Nina.
- 40:29Speaker 1: Totenberg she misheard an announcement about retirements at The Supreme
- 40:34Speaker 1: court and believing said announcements to be discussing the retirement
- 40:38Speaker 1: Of Justice Samuel, alito and she posted about, it and
- 40:42Speaker 1: it left other newsrooms scrambling to verify the information because
- 40:45Speaker 1: It's Nina totenberg FROM npr who's going to disagree with?
- 40:47Speaker 1: Her And Nina totenberg called it a rookie mistake on
- 40:51Speaker 1: all things, considered she read out an apology letter she
- 40:54Speaker 1: Sent Dear Justice, alito there were no words to adequately
- 40:57Speaker 1: apologize for today's error in reporting your. Retirement it was
- 41:00Speaker 1: highly my. FAULT i, mean she publicly. Apologized she described
- 41:03Speaker 1: it as the worst error of her. Career doesn't this
- 41:07Speaker 1: actually demonstrate something really healthy about responsible journalism right now
- 41:14Speaker 1: In trump's second?
- 41:15Speaker 3: TERM i like That, spinehon because you, know if you
- 41:18Speaker 3: think of so much of, propaganda if a factual mistake,
- 41:23Speaker 3: happens call Out Tucker carlson as an. Example you don't
- 41:26Speaker 3: see him fact checking and correcting. Himself maybe he's.
- 41:29Speaker 2: Positions but he doesn't engage in fact checking, Never and
- 41:32Speaker 2: that's not.
- 41:33Speaker 1: True apologies are weakness taking.
- 41:35Speaker 2: Responsibilities it's very.
- 41:36Speaker 3: Trump, Yeah, unfortunately it's Trump ism has infected a lot
- 41:40Speaker 3: of so called.
- 41:40Speaker 2: Journalism this is real JOURNALISM.
- 41:42Speaker 3: Mpr this amazing reporter with a long legacy made a
- 41:46Speaker 3: mistake and she owned up to. It and as much
- 41:50Speaker 3: as people want to claim that this is you, KNOW
- 41:52Speaker 3: mpr is fake, news or use it as an, opportunity
- 41:54Speaker 3: it shows the. Opposite it shows that in, journalism if
- 41:57Speaker 3: you make a mistake and you own up to, it then.
- 41:59Speaker 2: That is what makes you a journalist.
- 42:01Speaker 3: Exactly you, KNOW i have to say, TOO i have more,
- 42:03Speaker 3: respect not less for her. Exactly you, know the mistake
- 42:07Speaker 3: was an honest. Mistake she overheard something incorrectly that she
- 42:10Speaker 3: thought was talking about the retirement from the source Of alito's.
- 42:14Speaker 3: Retirement it was. Wrong she actually misheard the person is
- 42:18Speaker 3: what she. Said and then she's made up for. It
- 42:21Speaker 3: so you, KNOW i have an experience with being in
- 42:24Speaker 3: the room with. HER i didn't actually speak to, her
- 42:26Speaker 3: AND i have never been interviewed with. Her but during
- 42:28Speaker 3: the travel, BAND i had a press pass For, politico
- 42:31Speaker 3: and SO i joined the press in their gallery AND
- 42:35Speaker 3: i just have this memory of sitting there and she
- 42:38Speaker 3: came in and this is the courtroom has a left
- 42:42Speaker 3: side to, it which is where all the press set
- 42:44Speaker 3: AND i was sitting in that part of the courtroom
- 42:47Speaker 3: designated for the press print and you, KNOW tv and,
- 42:52Speaker 3: radio and when she came, in there's you, know there
- 42:55Speaker 3: was everybody there that you've seen on, television but the
- 42:58Speaker 3: whole room had reaction, like you, know, okay this is
- 43:02Speaker 3: the dean of. Journalism and she really showed, THAT i
- 43:05Speaker 3: think by owning up to a. Mistake and it's a great,
- 43:09Speaker 3: example far from UNDERCUTTING, mpr And i've been ON mpr many.
- 43:13Speaker 3: Times full disclosure and makes me have even more respect for.
- 43:17Speaker 1: Them, YEAH i think so. TOO i, mean a free
- 43:20Speaker 1: press that openly corrects itself seems to me an essential constitutional. Institution.
- 43:26Speaker 1: Right we always, hear, oh you can't trust the, media
- 43:28Speaker 1: can't trust the. MEDIA i, mean this kind of public
- 43:30Speaker 1: accountability seems to strengthen the. Credibility courts issue, corrections newspapers issue,
- 43:38Speaker 1: corrections scientific, journals medical journals publish retractions like aren't transparent
- 43:44Speaker 1: corrections of? Mistakes isn't that actual evidence the institutions are still?
- 43:50Speaker 3: Functioning you, KNOW i think there's no question about. It
- 43:54Speaker 3: and you, KNOW i also don't want to hide from
- 43:55Speaker 3: the eyes incentive that there is to break this, story
- 43:58Speaker 3: because If alito did retire right, now the question all
- 44:02Speaker 3: of a sudden opens up about the balance of The Supreme,
- 44:04Speaker 3: court and in particular the question THAT i want to get,
- 44:07Speaker 3: to which, is you, know what should the reaction be
- 44:10Speaker 3: of The Democratic, party especially if The Democratic party takes The.
- 44:13Speaker 3: Senate and to my, mind this is an, opportunity right
- 44:17Speaker 3: if it happens that there's a retirement or a death
- 44:21Speaker 3: while there's A Democratic senate and we have A republican.
- 44:24Speaker 3: President there is no, question AND i don't, think having had,
- 44:29Speaker 3: informal off the record conversations with people On Capitol, hill
- 44:32Speaker 3: that there's any disagreement about.
- 44:34Speaker 2: This no way are The Democratic.
- 44:36Speaker 3: Party is A Democratic senate going to confirm any justice
- 44:41Speaker 3: nominated By Donald. Trump there is no requirement of, nine
- 44:45Speaker 3: and the stolen seat Of Merrick garland.
- 44:48Speaker 2: Has to be.
- 44:49Speaker 3: Reclaimed not to mention the ideological rather than legal role
- 44:54Speaker 3: that The court is, played that it would be a
- 44:56Speaker 3: rebuke to that on both, justifications that number will go
- 44:59Speaker 3: to eight and will stay at eight. Naps so there
- 45:01Speaker 3: was a temptation to break this story and the. Excitement
- 45:04Speaker 3: she knew all this, coming and she made a mistake
- 45:07Speaker 3: and she. Apologized BUT i also don't want to hide
- 45:09Speaker 3: from the deeper, story which is An alito.
- 45:11Speaker 2: Retirement, wow that would be a major moment for this. Time.
- 45:14Speaker 1: Yeah by the, WAY i talked To mitch McConnell for
- 45:16Speaker 1: about twenty minutes earlier today and in his hospital, ROOM i. Did,
- 45:20Speaker 1: yeah we had a good talk and he was very
- 45:22Speaker 1: specific about.
- 45:22Speaker 2: How where has he been he's been.
- 45:25Speaker 1: Recovering he continues to continue the recovery, continues and it continues,
- 45:29Speaker 1: continuing and they can't tell us what he's recovering. From
- 45:33Speaker 1: they can't tell us what he's proving. From but he
- 45:37Speaker 1: wanted to point out to me how terrible he feels
- 45:39Speaker 1: about the fact that he chose to change the number
- 45:42Speaker 1: of The Supreme court makeup for one full year to
- 45:44Speaker 1: eight and he feels just awful about, it and he
- 45:47Speaker 1: encourages us to impeach Both gorsicch And Amy Coney barrett
- 45:51Speaker 1: to make things. Right that's just what he said to. Me,
- 45:53Speaker 1: though one last question about, This. Corey it seems like
- 45:56Speaker 1: social media and the modern political system really it really,
- 46:02Speaker 1: incentivizes it really punishes admitting mistakes right more than they reward.
- 46:07Speaker 1: It like like the social media has just made it
- 46:11Speaker 1: worse than weakness to admit a. Mistake it's made it,
- 46:14Speaker 1: like oh your moral that makes it. Woke like we
- 46:16Speaker 1: live in a time now where the entire zeitgeist is
- 46:20Speaker 1: against taking responsibility like an adult Like Nna. Totenberg just
- 46:24Speaker 1: did you?
- 46:25Speaker 3: Know it's such a great, Point, John and you, know
- 46:28Speaker 3: on the one, hand independent media is, great but on
- 46:31Speaker 3: the other, hand you, know there's a desire for clicks
- 46:33Speaker 3: and to increase the amount of time that people are
- 46:35Speaker 3: watching you and the more you can be an expert
- 46:38Speaker 3: and be. Flawless you see it in That eco. Universe
- 46:41Speaker 3: you certainly see it in The Fox news, universe where
- 46:43Speaker 3: the only thing that seems to limit it our, lawsuits
- 46:46Speaker 3: like the amazing dominion.
- 46:47Speaker 2: Lawsuit but you, ALSO.
- 46:49Speaker 3: I don't want to hide from the fact that do
- 46:51Speaker 3: have real journalists doing you, know fact based, journalism, investigation
- 46:55Speaker 3: the kind of thing that we're relying on all the
- 46:57Speaker 3: time in this, show and we're fact checking our own,
- 46:59Speaker 3: show where owning up to it if we make, mistakes
- 47:02Speaker 3: and that is not.
- 47:03Speaker 2: Weakness that is what DEFINES i think the.
- 47:05Speaker 3: Journalism and that's not just you, know, information it's information
- 47:09Speaker 3: necessary for citizens and a democracy to make good.
- 47:12Speaker 1: Decisions, Absolutely, So, corey let me wrap it all up with.
- 47:15Speaker 1: THIS i, mean we've covered a lot of. Ground James
- 47:18Speaker 1: madison famously wrote if men were, angels no government would be,
- 47:22Speaker 1: necessary And i'm thinking about that quite a bit these.
- 47:24Speaker 1: Days are we just in an era where we're just
- 47:27Speaker 1: discovering which constitutional safeguards were legal and which depended mostly
- 47:33Speaker 1: on political. Norms it's like what we're really learning the.
- 47:37Speaker 1: Difference we really.
- 47:38Speaker 3: Are And i've got to say something About James, madison
- 47:41Speaker 3: WHO i admire much more Than. Hamilton by the Way
- 47:43Speaker 3: hamilton gets his own music, law that's really a.
- 47:46Speaker 2: Shame he was for strong executive.
- 47:48Speaker 3: Power he really fought for a lot of the most
- 47:50Speaker 3: strenuous conception of a presidency.
- 47:53Speaker 1: Things, yeah But madison guys the coolest part Of wisconsin
- 47:56Speaker 1: named after. Him it.
- 47:56Speaker 2: Balances, ACTUALLY i think he might need a musical as.
- 48:00Speaker 3: Well you, know we could go into that on another.
- 48:02Speaker 3: Show BUT i will say that. Quote you, know it's
- 48:05Speaker 3: just painful for me to hear it because it takes
- 48:07Speaker 3: me back to the founding, period which of Course i'm
- 48:09Speaker 3: often writing about and. Studying and What madison believed was
- 48:13Speaker 3: that they had come up with this system that perfectly
- 48:16Speaker 3: balanced trust in a virtuous president with the recognition that,
- 48:21Speaker 3: yes men are not, angels and if there is a
- 48:24Speaker 3: bad person in, power we have the guardrails to protect.
- 48:27Speaker 2: Us but what are the? Guardrails it was supposed to Be.
- 48:29Speaker 3: Congress we've seen This Republican congress do anything but act as,
- 48:33Speaker 3: guardrail and The Supreme court and it's done nothing to
- 48:36Speaker 3: act as a. Guardrail the one guardrail that's left to
- 48:40Speaker 3: stop men who are not. Angels And Donald trump is
- 48:43Speaker 3: about the opposite of an.
- 48:44Speaker 2: Angel he is a devil as you can, get is.
- 48:48Speaker 3: Us and that's really you, KNOW i think The framers
- 48:50Speaker 3: didn't anticipate that in the election of eighteen, hundred in
- 48:54Speaker 3: getting rid of the want to be authoritarian President John
- 48:58Speaker 3: adams that you, Know, madison and in real, time you,
- 49:02Speaker 3: know after having said, that saw what happens when a
- 49:05Speaker 3: president isn't an. Angel and that's what we've got to
- 49:07Speaker 3: do in these next coming. Elections that's our only, choice
- 49:10Speaker 3: because the guardrails that he thought would.
- 49:12Speaker 2: Stop the, devil the non.
- 49:13Speaker 3: Angels you, KNOW i think he knew men were and,
- 49:16Speaker 3: angels but he didn't think there were.
- 49:17Speaker 2: Devils and you've got a devil in The White, house
- 49:20Speaker 2: that's for. Sure.
- 49:21Speaker 1: COREY i am so grateful to. You we covered a
- 49:23Speaker 1: lot of ground today AND i want to thank as
- 49:25Speaker 1: always our deeply attractive listening audience and, Uh wendy And
- 49:29Speaker 1: beowulf and everyone who keeps the podcast. Going, guys please
- 49:32Speaker 1: subscribe and also send us your. Emails we'd love to
- 49:34Speaker 1: hear from. You And professor what's the best way for
- 49:37Speaker 1: our listeners to keep up with you and your work
- 49:39Speaker 1: the other six days of the.
- 49:40Speaker 3: Week, well you can be the thousandth subscriber on the
- 49:44Speaker 3: new The oath in the office, substack where links to
- 49:47Speaker 3: all the stories that we talk, about we write up the.
- 49:49Speaker 3: Discussion you can listen to us wherever you get your.
- 49:53Speaker 3: Podcasts of, course On, apple we were in the top position,
- 49:57Speaker 3: recently number. One that's the first time that we've hit.
- 50:00Speaker 3: That i'll be specific On Apple Trending. Podcasts they rank
- 50:04Speaker 3: podcasts by downloads after an episode is. Released but also
- 50:08Speaker 3: if you're listening to us On spotify or any of
- 50:10Speaker 3: the other, places subscribe there and leave us a review
- 50:12Speaker 3: there as.
- 50:13Speaker 2: Well and these reviews are spreading the. Word tell a.
- 50:16Speaker 3: Friend that is another way that we. Grow And i've
- 50:18Speaker 3: just got to, Say, john we started with.
- 50:20Speaker 2: Nothing we are an independent.
- 50:21Speaker 3: Podcast we're not owned by a major, company we're not
- 50:24Speaker 3: owned by.
- 50:25Speaker 2: Anyone it is.
- 50:26Speaker 3: Truly, independent and yet we've grown phenomenally without a big corporate.
- 50:31Speaker 3: Backer and so support independent. Media support this. Podcast tell your, friends.
- 50:36Speaker 1: Thank you so. Much AND i also want to let
- 50:37Speaker 1: everyone KNOW i host the evening programming on SIRIUS Xm.
- 50:40Speaker 1: Progress but that is coming to an. End as Of,
- 50:43Speaker 1: Monday july, thirteenth we will be live in the daytimes
- 50:48Speaker 1: On SERIOUS Xm Progress. No channel one twenty, seven nine
- 50:52Speaker 1: am till twelve noon on The west, coast noon to
- 50:55Speaker 1: three pm on The East. Coast we'll be Following Stephanie
- 50:58Speaker 1: Miller live and our first new show again in our
- 51:01Speaker 1: brand new. Format it's going to be Called The John
- 51:03Speaker 1: Feugelsang show On SIRIUS Xm. Progress will feature a couple
- 51:07Speaker 1: of very special, Guests Professor Corey bretschneider and FORMER Us
- 51:11Speaker 1: President Martin. Sheen they're both together on our first episode
- 51:14Speaker 1: as we kick off our brand New SERIOUS xm show On. Monday,
- 51:17Speaker 1: corey thank you so much for everything you do and
- 51:19Speaker 1: for everything you've taught. Me and again thanks To wendy
- 51:23Speaker 1: And beowulf and to everyone who listens to The oath
- 51:25Speaker 1: in The office. Podcast I'm john Fiegel sang ANYTHING i left, Out, professor.
- 51:29Speaker 2: It was great and good luck with the new.
- 51:31Speaker 3: Show what an honor to be on with that on
- 51:34Speaker 3: the same show with that former.
- 51:35Speaker 2: President as we want To you're a new SERIES xm. Show,
- 51:38Speaker 2: sure thank.
- 51:38Speaker 1: You my parole officer had to do a lot of
- 51:41Speaker 1: work to make this. Happen thank you as, Always, corey
- 51:43Speaker 1: and we will see you all y'all next time on
- 51:46Speaker 1: the oath in the office