Latest / The Oath and The Office / Deported to Torture? The Supreme Court Greenlights Trump

Transcript

Deported to Torture? The Supreme Court Greenlights Trump · The Oath and The Office

• 0:00
  Speaker 1: Today's episode is brought to you by Americans United for
• 0:03
  Speaker 1: Separation of Church and State. Americans United has spent the
• 0:07
  Speaker 1: last 80 years defending your right to live as yourself
• 0:11
  Speaker 1: and believe as you choose, as.
• 0:13
  Speaker 2: Long as you don't harm others.
• 0:15
  Speaker 1: Most recently, this work has taken AU to the state
• 0:18
  Speaker 1: of Texas, where they're defending the rights of freedom of
• 0:21
  Speaker 1: and from religion for more than a dozen families who
• 0:25
  Speaker 1: are fighting against the Ten Commandments being posted in their
• 0:28
  Speaker 1: children's classrooms.
• 0:30
  Speaker 2: Learn more at au.org slash T-E-N-C. That's au.org slash T-E-N-C.
• 0:51
  Speaker 3: Welcome to another edition of The Oath and the Office,
• 0:54
  Speaker 3: the podcast. I'm John Fuglesang. It's so good to be
• 0:57
  Speaker 3: here with you. Right now, we're enjoying a time when
• 0:59
  Speaker 3: the Republican candidates for the midterms are running away from
• 1:02
  Speaker 3: Donald Trump like Trump runs away from light rain on
• 1:07
  Speaker 3: his hair. They're not breaking up with the president. They're
• 1:10
  Speaker 3: just changing their relationship status to it's complicated. So let's
• 1:14
  Speaker 3: bring in the star of our show, the author of
• 1:16
  Speaker 3: The Oath in the Office and The Presidents and the People,
• 1:18
  Speaker 3: a book all y'all should own as well. Rock star
• 1:20
  Speaker 3: from the poli-sci department at Brown University, please welcome the
• 1:24
  Speaker 3: man that Wu-Tang Clan calls the Mac, Professor Corey Bretschneider.
• 1:28
  Speaker 3: It's good to see you, sir.
• 1:29
  Speaker 2: Good to see you, John. We have quite a show.
• 1:32
  Speaker 1: We're going to talk about this Supreme Court order clearing
• 1:36
  Speaker 1: the way for third country deportation, sending people to countries.
• 1:39
  Speaker 2: That they're not from. We'll talk about that in depth.
• 1:42
  Speaker 1: And of course, there's a lot more to discuss and
• 1:44
  Speaker 1: update on what's going on with Trump's attempt to ban
• 1:47
  Speaker 1: whole news organizations that he doesn't agree with from the
• 1:50
  Speaker 1: White House and a lot more.
• 1:53
  Speaker 3: Well, let's talk about this because the ruling just came
• 1:56
  Speaker 3: through now. Back on September 18th, years ago, the First
• 2:00
  Speaker 3: Circuit ruled that people facing removal to a country that
• 2:04
  Speaker 3: isn't where they come from, have to get effective notice, right?
• 2:08
  Speaker 3: And they have to have a meaningful opportunity to raise
• 2:10
  Speaker 3: their fears about persecution in this third party country or torture.
• 2:15
  Speaker 3: And the administration thought, well, that's too humane. So they
• 2:17
  Speaker 3: asked the Supreme Court to intervene. And the six justice majority,
• 2:22
  Speaker 3: the dirty six, just lifted that lower court decision and said,
• 2:27
  Speaker 3: go ahead. Yeah, who cares? No, go ahead. If they
• 2:29
  Speaker 3: get persecuted, it's on them. The justices did not explain why. Sotomayor, Kagan,
• 2:34
  Speaker 3: and Katanji Brown Jackson all dissented from the ruling. Professor,
• 2:38
  Speaker 3: I mean, what's the fundamental constitutional question in this third-party
• 2:42
  Speaker 3: deportation case, beyond the fact that these folks appear to
• 2:45
  Speaker 3: be sadists?
• 2:47
  Speaker 1: Well, you know, I'll sum it up in one word,
• 2:50
  Speaker 1: because third-party deportation sounds like an abstract idea, and the
• 2:54
  Speaker 1: word is torture. We have examples of people who are
• 2:57
  Speaker 1: being sent to countries, being deported to countries that that
• 3:00
  Speaker 1: they're not from. And that's, you know, should raise a
• 3:04
  Speaker 1: lot of questions as it is. But I'll give you
• 3:07
  Speaker 1: one of the main examples. And I should say, too,
• 3:09
  Speaker 1: there are 25,000 cases.
• 3:11
  Speaker 2: This isn't a small amount.
• 3:13
  Speaker 1: One of the people involved here was born in Cuba,
• 3:16
  Speaker 1: Cuban national, and was deported to a country that used
• 3:18
  Speaker 1: to be Swaziland and is now known as Eswatini. This
• 3:22
  Speaker 1: is an absolutist, authoritarian country with essentially no human rights.
• 3:28
  Speaker 2: He didn't know where he was headed.
• 3:29
  Speaker 1: And all of a sudden, he found himself being led through,
• 3:32
  Speaker 1: as he describes it, these metal doors and was in
• 3:36
  Speaker 1: a prison, isolated, and no access to his cell phone.
• 3:40
  Speaker 1: He had to go on hunger strike as a way
• 3:42
  Speaker 1: of trying to get attention. Finally, there was some recognition
• 3:46
  Speaker 1: of what was going on and realization that he had
• 3:48
  Speaker 1: been sent to this country. But imagine that, being sent
• 3:51
  Speaker 1: from the United States where you've lived and being deported,
• 3:55
  Speaker 1: not back to a country where you're familiar with it,
• 3:58
  Speaker 1: but one that you don't even know its name. This
• 4:01
  Speaker 1: is a country that's name changed not too long ago.
• 4:04
  Speaker 2: Not a lot of people in the world.
• 4:06
  Speaker 3: Know about this country. You can't even find that on
• 4:09
  Speaker 3: a lot of maps.
• 4:09
  Speaker 2: Yeah, exactly. What's the issue?
• 4:13
  Speaker 1: The issue is that the Constitution of the United States
• 4:16
  Speaker 1: guarantees due process. The argument is that if you have
• 4:19
  Speaker 1: no way to meaningfully check to make sure that you're
• 4:22
  Speaker 1: not being deported to a country that is going to
• 4:25
  Speaker 1: torture you, then there is no due process. There are
• 4:28
  Speaker 1: other examples, a case in which there were deportees to
• 4:32
  Speaker 1: Equatorial Guinea in which there was documented torture. So, you know,
• 4:36
  Speaker 1: these are human rights abusing countries that the Trump administration
• 4:39
  Speaker 1: has made a deal with. And although the lower court said, hey,
• 4:43
  Speaker 1: this is a due process violation, the Supreme Court on
• 4:46
  Speaker 1: a shadow docket cleared the way for these deportations to
• 4:49
  Speaker 1: continue to happen. There'll be more litigation over this. This
• 4:52
  Speaker 1: isn't the end final decision. but it certainly clears the
• 4:55
  Speaker 1: way for a massive human rights abuse by this administration.
• 4:59
  Speaker 3: Oh, my God. So, I mean, let me ask some
• 5:01
  Speaker 3: very dumb questions about this, Professor, because the First Circuit,
• 5:05
  Speaker 3: I know, they didn't say the government can never deport
• 5:08
  Speaker 3: someone to a third country. They said that the person
• 5:11
  Speaker 3: must get notice and this meaningful opportunity to argue that
• 5:15
  Speaker 3: they face persecution. Now, the administration says, oh, no, no,
• 5:18
  Speaker 3: diplomatic assurances from foreign governments, that's sufficient to protect deportees.
• 5:23
  Speaker 3: I mean, They're literally saying, trust us, they promise not
• 5:26
  Speaker 3: to torture you. The bad guys gave us their word.
• 5:30
  Speaker 3: I mean, why did the First Circuit reject that as
• 5:33
  Speaker 3: a substitute for giving the individual the opportunity to be heard?
• 5:38
  Speaker 1: Well, that phrase, meaningful opportunity, might sound abstract, but what
• 5:41
  Speaker 1: it means is that you actually have to have a
• 5:43
  Speaker 1: chance to show that you're demanding that the administration show
• 5:48
  Speaker 1: that you're not going to be tortured, that there really
• 5:50
  Speaker 1: was an actual investigation of these country's were the deportations,
• 5:54
  Speaker 1: these third countries that individuals are being deported to. And
• 5:57
  Speaker 1: as you said, the First Circuit didn't say that this
• 6:00
  Speaker 1: can never happen. But what it certainly did say is
• 6:03
  Speaker 1: that there has to be meaningful evidence, not just any
• 6:06
  Speaker 1: kind of evidence, any kind of claim, that the place
• 6:10
  Speaker 1: that you're going to be deported to isn't going to
• 6:11
  Speaker 1: torture you. And when it's an authoritarian regime, as is
• 6:15
  Speaker 1: true of Equatorial Guinea, for instance, Not only is there
• 6:18
  Speaker 1: no guarantee, there's probably a likelihood that you will be
• 6:21
  Speaker 1: tortured or a good chance of it, to say the least.
• 6:24
  Speaker 1: And so, you know, what this means, meaningful opportunity, is
• 6:27
  Speaker 1: that there is some substance to it. The administration's argument,
• 6:30
  Speaker 1: and this is just reiterating and elaborating on what you
• 6:33
  Speaker 1: already said, John, is this just trust me theory.
• 6:36
  Speaker 2: And it's like, you know what?
• 6:38
  Speaker 1: We asked these countries, are you going to torture the
• 6:40
  Speaker 1: people that we're sending to you? And they said, just
• 6:42
  Speaker 1: trust me, we're not going to do it. But when
• 6:44
  Speaker 1: it's an authoritarian regime, when there's no transparency, when people
• 6:47
  Speaker 1: don't even know the name of the country that they're
• 6:49
  Speaker 1: going to, you know, we're so far from any process
• 6:54
  Speaker 1: that's due. It's just basically the administration sending people places
• 6:58
  Speaker 1: that they want. And again, the Supreme Court just cleared
• 7:02
  Speaker 1: the way for this to happen.
• 7:03
  Speaker 3: I mean, the First Circuit Court's decision, I guess, Professor,
• 7:06
  Speaker 3: was maybe don't put human beings on a plane to
• 7:08
  Speaker 3: an undisclosed third party country without letting them explain to
• 7:11
  Speaker 3: you why they might be tortured there. It's really radical.
• 7:15
  Speaker 3: Tell the person where you're sending them. But this administration
• 7:18
  Speaker 3: is also just saying quite flatly they have final removal
• 7:22
  Speaker 3: orders and therefore the authority to carry them out. I mean,
• 7:26
  Speaker 3: where does that authority end?
• 7:28
  Speaker 1: Well, what the administration is saying, and, you know, when
• 7:31
  Speaker 1: you and I talked about this earlier in the week
• 7:33
  Speaker 1: on your radio show, I predicted that the Supreme Court
• 7:36
  Speaker 1: was going to do precisely this, because when it comes
• 7:39
  Speaker 1: to matters of immigration... They tend to be just extremely
• 7:42
  Speaker 1: deferential to the president of the United States.
• 7:45
  Speaker 3: Oh, they enjoy it a bit too, Corey. They enjoy
• 7:47
  Speaker 3: it a bit themselves.
• 7:49
  Speaker 2: That was true in the travel ban case.
• 7:51
  Speaker 1: When it came to who gets into the country, they
• 7:54
  Speaker 1: deferred enormously, even in the face of an explicit Muslim ban,
• 7:58
  Speaker 1: one that the president kept telling us was a Muslim ban.
• 8:00
  Speaker 1: They said, well, the administration is saying it's just about security.
• 8:03
  Speaker 1: Even though we've seen no evidence of that, let's trust them.
• 8:06
  Speaker 1: And now this administration is saying, Just trust us.
• 8:09
  Speaker 2: We made a.
• 8:09
  Speaker 1: Deal with Eswatini, and I should say that Equatorial Guinea, Eswatini,
• 8:14
  Speaker 1: these countries are being paid to take these deportees, and
• 8:19
  Speaker 1: they are treating them not just as prisoners, but in
• 8:21
  Speaker 1: some cases as prisoners who are going.
• 8:23
  Speaker 2: To be tortured. What process is due?
• 8:26
  Speaker 1: Well, first of all, it's a right of persons under
• 8:28
  Speaker 1: the Fifth and Fourteenth Amendment. No person shall be deprived
• 8:32
  Speaker 1: of the due process of law.
• 8:34
  Speaker 3: Right, not citizens.
• 8:35
  Speaker 1: And it isn't just a limit to citizens. So certainly
• 8:38
  Speaker 1: these deportees are owed that. And I would think, I mean,
• 8:42
  Speaker 1: I just don't want to miss this point. Forget about torture. OK,
• 8:45
  Speaker 1: that is obviously required. But a minimum as well is
• 8:49
  Speaker 1: that you know where you're headed and that they just
• 8:52
  Speaker 1: sent this Cuban national to Eswatini without any knowledge of
• 8:57
  Speaker 1: where he was going and that he found himself in
• 8:59
  Speaker 1: a prison cell. Behind closed doors, they transported him, by
• 9:02
  Speaker 1: the way, in a military truck once he arrived in
• 9:05
  Speaker 1: the country, still not knowing where he was.
• 9:07
  Speaker 2: He had to ask again and again, where am I,
• 9:10
  Speaker 2: before he figured that out. And this is not a
• 9:12
  Speaker 2: small number.
• 9:13
  Speaker 1: I should say most of these deportees are being sent
• 9:17
  Speaker 1: to Mexico, but we're talking about 25,000 people. So it
• 9:20
  Speaker 1: is in the thousands of people who are being sent
• 9:23
  Speaker 1: to these countries. There's an attempt to document them. That's
• 9:26
  Speaker 1: where the number 25... comes from, from a nonprofit that's
• 9:29
  Speaker 1: been tracking all this.
• 9:31
  Speaker 2: But the whole point is there's no transparency. We don't
• 9:33
  Speaker 2: know what's going on in these countries.
• 9:36
  Speaker 1: Yes, we have this story out of Eswatini, this story
• 9:38
  Speaker 1: out of Equatorial Guinea, but how many stories do we
• 9:41
  Speaker 1: not have out of these thousands?
• 9:44
  Speaker 3: Well, also, I mean, there's that, you know, wild factor
• 9:47
  Speaker 3: that let's say country B sends you to country C
• 9:51
  Speaker 3: and now you've unlocked the human rights version of connecting flights, right?
• 9:54
  Speaker 3: I mean, Just because you're sent to country C and
• 9:57
  Speaker 3: the Supreme Court said that's okay doesn't mean that's where
• 10:00
  Speaker 3: you're going to stay either. But if the administration says, well,
• 10:04
  Speaker 3: we have diplomatic assurances that these people will be safe,
• 10:08
  Speaker 3: I mean, does a court have to accept that representation?
• 10:12
  Speaker 3: Or does the individual have to have the opportunity to
• 10:15
  Speaker 3: contest that? That's what I don't get.
• 10:17
  Speaker 1: It's a great way to dig deep into this, John,
• 10:19
  Speaker 1: because to my mind, common sense tells you, and any
• 10:23
  Speaker 1: legal sense, frankly, that if you have a right to
• 10:25
  Speaker 1: due process, that just trust me is not due process.
• 10:30
  Speaker 1: I think that's almost law 101. Due process means that
• 10:34
  Speaker 1: there has to be a meaningful way that you're assuring
• 10:37
  Speaker 1: people that their rights are being respected, including the basic
• 10:40
  Speaker 1: right that's at issue here, which is the right not
• 10:42
  Speaker 1: to be tortured. And yes, I would think that information
• 10:45
  Speaker 1: about where you're headed and what this country is to
• 10:48
  Speaker 1: assure people that, yes, they really are not going to
• 10:50
  Speaker 1: be tortured would be part of it.
• 10:52
  Speaker 2: And I should say, you know.
• 10:54
  Speaker 1: The administration, Trump, cites a lot of statutes in which
• 10:57
  Speaker 1: Congress has handed over massive power to the executive, to
• 11:00
  Speaker 1: the president, when it comes to issues of deportation and immigration.
• 11:05
  Speaker 1: But the Constitution stands above that. The right of due
• 11:07
  Speaker 1: process constrains any law, any action by a president. And
• 11:11
  Speaker 1: it's not a meaningful idea of due process of saying,
• 11:15
  Speaker 1: deferring to this administration, which says, just trust me. And
• 11:18
  Speaker 1: of course, there are three dissents from the liberals on
• 11:21
  Speaker 1: the court saying exactly that.
• 11:24
  Speaker 2: Yeah.
• 11:24
  Speaker 3: So, I mean, here's my question, though. How should courts
• 11:28
  Speaker 3: think about the possibility of this? It's chain refoulement, I
• 11:31
  Speaker 3: think it's called, right? Someone being sent to a third
• 11:33
  Speaker 3: country that then sends them, again, somewhere else where they
• 11:36
  Speaker 3: could face persecution and torture. I mean— Are the courts
• 11:40
  Speaker 3: obliged to consider that? And it sounds like you're also
• 11:43
  Speaker 3: saying that the courts are obliged to give an individualized
• 11:45
  Speaker 3: hearing every time the government changes anyone's destination country.
• 11:50
  Speaker 1: You know, I don't want to say, and I think
• 11:52
  Speaker 1: none of the courts are saying, that there's never a
• 11:54
  Speaker 1: case in which a third-party deportation would make sense.
• 11:57
  Speaker 2: And so I'll just give you an example.
• 12:00
  Speaker 1: If somebody's been convicted of a crime and after they've
• 12:02
  Speaker 1: served their time in prison— they're being deported, a lot
• 12:06
  Speaker 1: of countries don't want to take the person back, even
• 12:09
  Speaker 1: if they were born in that country. Okay, so what
• 12:11
  Speaker 1: does the government do? They don't have a right to
• 12:13
  Speaker 1: remain in the United States, and they don't have the
• 12:16
  Speaker 1: ability to go back to their home country.
• 12:19
  Speaker 2: In that instance, a third country deportation.
• 12:21
  Speaker 1: Might, and I'll emphasize might, make sense, but it's subject
• 12:25
  Speaker 1: to a guarantee, and this is part of the law,
• 12:28
  Speaker 1: and it's part of basic morality, that we're not going
• 12:31
  Speaker 1: to send these people back to a third country in
• 12:34
  Speaker 1: which they're going to be tortured.
• 12:35
  Speaker 2: Now, how do we assure that that's not going to happen?
• 12:38
  Speaker 1: What the administration says, what the Solicitor General seems to
• 12:41
  Speaker 1: be saying, the person who argues for the administration before
• 12:45
  Speaker 1: the Supreme Court is, well, we paid these third countries
• 12:48
  Speaker 1: money and we asked them, are you going to torture
• 12:51
  Speaker 1: the people that we sent to you?
• 12:52
  Speaker 2: And they said, no, that's not meaningful due process.
• 12:55
  Speaker 1: That's not any kind of investigation that you really are
• 12:59
  Speaker 1: having your liberty treated with respect.
• 13:02
  Speaker 2: And to say the least. And so that's what I'd say.
• 13:05
  Speaker 1: Yes, in some cases, you could have due process that
• 13:07
  Speaker 1: results in a third country deportation, but that's not anything
• 13:11
  Speaker 1: that's going on here. And the Supreme Court, not surprisingly,
• 13:14
  Speaker 1: but disappointingly and wrongly, allowed it.
• 13:18
  Speaker 3: I mean, that's the creepy part, right? Oh, this government
• 13:20
  Speaker 3: got a permission slip from another government. There's something perverse,
• 13:24
  Speaker 3: is there not, Professor, about making the person who might
• 13:27
  Speaker 3: be tortured prove the government wrong before the government tells
• 13:32
  Speaker 3: them where they're being sent? I mean, the Supreme Court
• 13:35
  Speaker 3: has allowed this to proceed. So what precedent has now
• 13:39
  Speaker 3: been set for future administrations?
• 13:41
  Speaker 1: You know, as bad as the way you put it is,
• 13:43
  Speaker 1: I think it's actually even worse. Because even if you
• 13:46
  Speaker 1: could prove that you're going to be tortured to the
• 13:48
  Speaker 1: place that you're going to be sent, you know, that
• 13:50
  Speaker 1: you had the documentation, say, for instance, of this Equatorial
• 13:53
  Speaker 1: New Guinea's human rights violations, Where's your opportunity? Because the
• 13:57
  Speaker 1: government isn't even telling you where you're being sent. They're
• 14:00
  Speaker 1: not giving you that moment in which you could object,
• 14:03
  Speaker 1: where you could present evidence.
• 14:04
  Speaker 2: Where's that happening? There was no moment.
• 14:07
  Speaker 1: Where these deportees appeared before a judge and got to say, hey,
• 14:10
  Speaker 1: they're going to send me to this third country. So,
• 14:13
  Speaker 1: you know, it's even worse than it sounds. I should
• 14:15
  Speaker 1: say all this really began in some ways, and we
• 14:18
  Speaker 1: began reporting on it and analyzing it with the deportation
• 14:22
  Speaker 1: of Abrego Garcia, who was... deported without due process to
• 14:27
  Speaker 1: this gulag in El Salvador, even though he's from Venezuela,
• 14:30
  Speaker 1: under the Enemy Aliens Act. And, you know, Judge Boasberg said, no,
• 14:36
  Speaker 1: don't send him there. And the administration did it anyway
• 14:38
  Speaker 1: and sent others to this gulag prison. So the administration's
• 14:42
  Speaker 1: been willing to just disregard court orders before. What's different
• 14:45
  Speaker 1: now is these aren't necessarily members of nationals of quote-unquote
• 14:50
  Speaker 1: enemy nations.
• 14:51
  Speaker 2: The administration is just claiming that they can have.
• 14:54
  Speaker 1: This very thin idea of due process. They're not saying,
• 14:56
  Speaker 1: as they did in that case, no due process, but
• 14:59
  Speaker 1: they're saying all that's required is that we essentially get
• 15:01
  Speaker 1: this promise from these third countries. And to my mind,
• 15:05
  Speaker 1: that's basically the same thing. They've just, far from retreating,
• 15:09
  Speaker 1: they've just expanded the degree to which they're willing to
• 15:12
  Speaker 1: violate people's, not just due process rights, I want to
• 15:14
  Speaker 1: emphasize this, human rights, rights not.
• 15:17
  Speaker 3: To be tortures. I mean, they're throwing you in a
• 15:19
  Speaker 3: cage and then handing you a plane ticket with the
• 15:22
  Speaker 3: destination blacked out. That's what our government's doing.
• 15:25
  Speaker 1: All right.
• 15:26
  Speaker 3: We have to take a break. But did you get
• 15:28
  Speaker 3: a chance, anyone out there, to see the new Donald
• 15:30
  Speaker 3: Trump campaign ad? I hope you did because you paid
• 15:35
  Speaker 3: for it. Let's talk about state media when we come
• 15:38
  Speaker 3: back on The Oath in the Office.
• 15:42
  Speaker 1: As students return to Texas public schools this fall, classrooms
• 15:46
  Speaker 1: across the state will feature a new poster, the Ten Commandments.
• 15:51
  Speaker 2: How did we get here?
• 15:52
  Speaker 1: Texas passed a law requiring public schools to display the
• 15:55
  Speaker 1: Ten Commandments in every classroom, specifying a Protestant Christian version
• 16:00
  Speaker 1: that must be displayed. Americans United, our sponsor, and their
• 16:05
  Speaker 1: allies are challenging this law in court because it violates
• 16:09
  Speaker 1: religious freedom and the constitutional rights of students and families.
• 16:14
  Speaker 1: The appeals court downplayed the importance of these displays, saying
• 16:18
  Speaker 1: they just, quote, put a poster on a classroom wall,
• 16:21
  Speaker 1: end quote. But forcing government mandated religious displays into our
• 16:26
  Speaker 1: public school classrooms and taking away families' freedom to choose
• 16:31
  Speaker 1: their own religion and belief systems is a very big deal.
• 16:35
  Speaker 1: And AU is here to protect everyone's First Amendment freedom,
• 16:40
  Speaker 1: everyone's right to the freedom of and from religion. Learn
• 16:45
  Speaker 1: more and get involved at au.org slash T-E-N-C. AU believes
• 16:52
  Speaker 1: that freedom without favor and equality without exception should be
• 16:58
  Speaker 1: the understanding of the First Amendment.
• 17:06
  Speaker 3: Welcome back to The Oath in the Office. I'm John
• 17:08
  Speaker 3: Fugel saying along with Professor Corey Bretschneider. Now, you may
• 17:11
  Speaker 3: have heard the administration is airing live TV ads featuring
• 17:15
  Speaker 3: black and white Donald Trump and a lot of, you know,
• 17:18
  Speaker 3: greatest hits rhetoric about the globalists and the deep state
• 17:21
  Speaker 3: and going after warmongers, which I guess means it's an
• 17:24
  Speaker 3: attack ad on himself. Now, the curious thing is when
• 17:28
  Speaker 3: you get to the end of this commercial, most of
• 17:30
  Speaker 3: which is footage from a 2024 campaign ad, it says
• 17:33
  Speaker 3: at the bottom paid for by the U.S. government. which
• 17:36
  Speaker 3: means it's paid for by you. Because why waste campaign
• 17:41
  Speaker 3: money when you can get the taxpayer to pick up
• 17:43
  Speaker 3: the tab? Now, the administration is trying to get around
• 17:45
  Speaker 3: this by saying these are public service announcements. But as
• 17:49
  Speaker 3: you know, public service announcements traditionally tell you things like
• 17:53
  Speaker 3: don't text while driving, get vaccinated, check your smoke detector.
• 17:57
  Speaker 3: If this is a public service, Professor, the service appears
• 17:59
  Speaker 3: to be informing the American people that Donald Trump would
• 18:03
  Speaker 3: like the American people to know how much Donald Trump
• 18:05
  Speaker 3: approves of Donald Trump. What do you make of this, Corey?
• 18:08
  Speaker 3: What is the legal line between government communication and political campaigning?
• 18:14
  Speaker 3: I mean, this is astonishingly tacky.
• 18:18
  Speaker 2: Well, it's certainly tacky.
• 18:19
  Speaker 1: And what the president is doing is, you know, his
• 18:21
  Speaker 1: common technique, having watched him closely, you know, for as
• 18:25
  Speaker 1: many years as he's been in national politics, I can
• 18:28
  Speaker 1: tell you that what he is an expert at, and
• 18:30
  Speaker 1: I wish this wasn't the case, is going right up
• 18:32
  Speaker 1: to the line and just either barely crossing it or
• 18:36
  Speaker 1: not crossing it so that it's hard to make a
• 18:37
  Speaker 1: case against them.
• 18:38
  Speaker 3: Well, it's almost like he knew Roy Cohn.
• 18:41
  Speaker 1: It is so Roy Cohn. And so before we get
• 18:44
  Speaker 1: to this one, I'll just give you an example. When
• 18:46
  Speaker 1: he was campaigning in 2016, he was at a rally
• 18:49
  Speaker 1: and he started saying, you know what we used to
• 18:51
  Speaker 1: do to protesters?
• 18:52
  Speaker 2: We used to rough them up. We used to Beat them.
• 18:55
  Speaker 1: And as one of the protesters in the crowd is
• 18:58
  Speaker 1: actually being beaten up, he says, but don't hurt him.
• 19:01
  Speaker 1: And he actually wins the case when he's sued for
• 19:03
  Speaker 1: essentially inciting this violence. He says, well, this is my
• 19:06
  Speaker 1: First Amendment free speech right. And when I said don't
• 19:09
  Speaker 1: hurt him, I made it clear that I was speaking metaphorically.
• 19:13
  Speaker 1: And a court bought that. A federal court bought that.
• 19:16
  Speaker 1: That's what so disturbed me. So to return to the
• 19:18
  Speaker 1: present case, here's what's going on. What the law says
• 19:21
  Speaker 1: is this.
• 19:23
  Speaker 2: That it's not a PSA. It is a campaign ad.
• 19:25
  Speaker 1: If you have a call to action and you have
• 19:27
  Speaker 1: sometimes the language is used in various statutes, electioneering, that
• 19:31
  Speaker 1: you're saying, vote for candidate A or vote against the Democrats.
• 19:34
  Speaker 1: And without that call to action, what he's going to
• 19:37
  Speaker 1: argue is, well, I didn't say those magic words. And
• 19:41
  Speaker 1: so this is just informing the public about what's going on.
• 19:45
  Speaker 2: When I give the State of the Union.
• 19:46
  Speaker 1: It's not a campaign ad. I'm just telling us about
• 19:51
  Speaker 1: where America is, what our policies are.
• 19:53
  Speaker 2: But when you actually look.
• 19:54
  Speaker 1: At the campaign ad, which is what I'll call it,
• 19:58
  Speaker 1: talking about how he's rooting out the communists and going
• 20:02
  Speaker 1: after his enemies, it is so partisan.
• 20:04
  Speaker 2: It's just that he pulls back.
• 20:06
  Speaker 1: Just as he did in that example that I gave,
• 20:08
  Speaker 1: the violence in the campaign rally, at the last second
• 20:11
  Speaker 1: and doesn't say vote Republican or vote against the Democrats.
• 20:15
  Speaker 2: He doesn't need to.
• 20:16
  Speaker 1: That's really his deviousness right there, walking right up to
• 20:21
  Speaker 1: the line, probably crossing it, but not so much that
• 20:24
  Speaker 1: it's obvious that he could bring a case. The other
• 20:27
  Speaker 1: point is he knows that no way is this attorney
• 20:29
  Speaker 1: general bringing a case against him, another deep flaw in
• 20:32
  Speaker 1: the system that he's exploiting.
• 20:34
  Speaker 3: That's it, exactly. Who's going to go after him for this?
• 20:36
  Speaker 3: The FCC? I mean, this is a campaign commercial that's
• 20:40
  Speaker 3: playing witness protection, you know? Like they say that the
• 20:43
  Speaker 3: spots were just reminding Americans to love their country, that
• 20:46
  Speaker 3: that's what this was about. And I guess loving your
• 20:48
  Speaker 3: country means watching Donald Trump stride dramatically down a hallway
• 20:53
  Speaker 3: in black and white, promising to demolish his enemies and
• 20:56
  Speaker 3: rout the media and liberate. I mean, all that's missing
• 21:00
  Speaker 3: is the QR code, right? And how I can buy
• 21:01
  Speaker 3: the commemorative hat from all this. But I know, Corey,
• 21:04
  Speaker 3: that federal appropriations law has long restricted the use of
• 21:08
  Speaker 3: taxpayer money for publicity or propaganda, right? But I guess
• 21:13
  Speaker 3: I have to ask, what does that mean? Like, what
• 21:15
  Speaker 3: does that actually prohibit after seeing an ad like this?
• 21:18
  Speaker 1: Well, you know, it's not just the basis of one law.
• 21:21
  Speaker 1: I think there's basically all campaign finance law is based
• 21:25
  Speaker 1: on the idea that Certainly that you can't use money
• 21:27
  Speaker 1: that's provided by all of us for one specific partisan purpose.
• 21:32
  Speaker 1: It's one thing to provide public money for candidates or
• 21:35
  Speaker 1: something like that where it's spread across evenly and there's
• 21:37
  Speaker 1: a process for making sure that it's.
• 21:39
  Speaker 2: Not serving one person.
• 21:41
  Speaker 1: But when a public official, in this case the president,
• 21:44
  Speaker 1: just takes taxpayer money and uses it for a partisan
• 21:47
  Speaker 1: agenda– That's a violation, again, of a lot of campaign
• 21:52
  Speaker 1: finance laws that not all of them remain on the books.
• 21:55
  Speaker 1: So much of it has been struck down. But what
• 21:57
  Speaker 1: does remain certainly prohibits that. And but now how does
• 22:00
  Speaker 1: he get away with it? He says, oh, it's not
• 22:01
  Speaker 1: a campaign ad. It's just me telling the American people
• 22:05
  Speaker 1: what's going on. And, you know, this is a line
• 22:07
  Speaker 1: that I wouldn't want to say is just crossed by Trump.
• 22:09
  Speaker 2: You see it in less obvious, less extreme degrees.
• 22:13
  Speaker 1: Members of Congress will often use the mail system that
• 22:15
  Speaker 1: they have access to. to provide information in a way
• 22:18
  Speaker 1: that sometimes is really just advancing their own partisan agenda. So,
• 22:23
  Speaker 1: you know, he's exploiting something that's out there, but he's
• 22:25
  Speaker 1: just taking it so far because he knows no one's
• 22:28
  Speaker 1: really going to stop him. One real problem this is
• 22:32
  Speaker 1: revealing too is how much of our system relies on norms.
• 22:36
  Speaker 1: So both ethics advisors, ethics czars, as they're sometimes called,
• 22:40
  Speaker 1: from Democratic and Republican administrations, Norm Eisen on the Democratic side, Painter,
• 22:47
  Speaker 1: on the Republican side, have both come out and said,
• 22:50
  Speaker 1: this is a no-brainer.
• 22:51
  Speaker 2: Like, no way can you do this. And how would
• 22:54
  Speaker 2: it have been stopped in a previous administration?
• 22:56
  Speaker 1: It never would have gotten past the published line because
• 22:59
  Speaker 1: the ethics advisors would.
• 23:01
  Speaker 2: Have said, no way can you do that.
• 23:03
  Speaker 1: Now, what is the White House ethics advisor in a
• 23:06
  Speaker 1: Trump administration saying? I mean, it's just a non-existent, non-serious entity.
• 23:11
  Speaker 3: The world's easiest job. Yes, sir. Is that the easiest
• 23:14
  Speaker 3: job in the world?
• 23:16
  Speaker 2: Sorry, John, go ahead.
• 23:17
  Speaker 3: I'm sorry. I'm interrupting you. It's so rude. But I mean,
• 23:19
  Speaker 3: that's the easiest job I've ever heard in my life,
• 23:21
  Speaker 3: isn't it?
• 23:22
  Speaker 1: Yeah.
• 23:23
  Speaker 3: That's Rush Limbaugh's fact checker easy.
• 23:25
  Speaker 1: Well, you know, I needed you to interrupt there because
• 23:28
  Speaker 1: it is such a setup to a joke. What is
• 23:31
  Speaker 1: the ethics advisor in the Trump administration?
• 23:34
  Speaker 2: And Yeah, not a serious job.
• 23:37
  Speaker 3: No, that's a man who gave up and started vaping
• 23:39
  Speaker 3: years ago. But let me throw some numbers at you.
• 23:42
  Speaker 3: According to the reporting– He's.
• 23:43
  Speaker 2: In some back room just enjoying kicking back.
• 23:47
  Speaker 1: An easy job. Saying whatever if anybody comes by.
• 23:51
  Speaker 2: Right?
• 23:52
  Speaker 3: It's like, oh, I'm Melania's acting coach. But according to
• 23:56
  Speaker 3: the– The same person. Yeah. So one of these ads
• 23:59
  Speaker 3: cost almost half a million dollars. And the spending on
• 24:02
  Speaker 3: the other one was a little above $ 319, 000, which is
• 24:06
  Speaker 3: a lot of public money to discover that the president
• 24:09
  Speaker 3: is very, very proud of himself, Corey. But they're also saying, well,
• 24:13
  Speaker 3: he's not on the ballot, so it can't be a
• 24:15
  Speaker 3: campaign ad. Does it matter legally if he's not on
• 24:18
  Speaker 3: the ballot or can government funded advertising still be illegally partisan,
• 24:24
  Speaker 3: even when the president's not a candidate? I mean, there's
• 24:26
  Speaker 3: literal it's literally footage from a campaign ad that they're
• 24:30
  Speaker 3: using in this.
• 24:31
  Speaker 1: You know, sometimes I feel like I'm worried that, you know,
• 24:34
  Speaker 1: I'm giving the administration better arguments than they have, because
• 24:37
  Speaker 1: I think that is a ridiculous argument, that he's not
• 24:39
  Speaker 1: on the ballot. Of course, you can violate campaign finance
• 24:42
  Speaker 1: restrictions and allocation restrictions of how taxpayer dollars are used
• 24:47
  Speaker 1: without yourself being a candidate. If you spend public money
• 24:50
  Speaker 1: that's allocated for public purposes, for partisan purposes, even if
• 24:55
  Speaker 1: you're not a candidate, you can still be guilty. So
• 24:58
  Speaker 1: a senator campaigning for, you know, a colleague or something,
• 25:01
  Speaker 1: using public money that was allocated for public works, but
• 25:05
  Speaker 1: using it for campaign ads.
• 25:06
  Speaker 2: It doesn't matter if you're running or not.
• 25:08
  Speaker 1: The better argument is what I've been saying, that there
• 25:10
  Speaker 1: is no call to action. But, you know, leave it
• 25:13
  Speaker 1: to them to make the worse rather than the best
• 25:15
  Speaker 1: argument here.
• 25:16
  Speaker 3: Oh, my God. I mean, it's also the Hatch Act,
• 25:18
  Speaker 3: which I know is not a magic Hogwarts spell that
• 25:21
  Speaker 3: says government propaganda is illegal. But I mean, I guess
• 25:24
  Speaker 3: the governing philosophy is if someone calls us illegal, we'll
• 25:26
  Speaker 3: call it a PSA. And if someone says taxpayers shouldn't
• 25:30
  Speaker 3: fund it, we'll call it a PSA. I mean, once
• 25:32
  Speaker 3: the government can just take a politician's campaign ad and
• 25:36
  Speaker 3: put it on TV and then send the bill to
• 25:38
  Speaker 3: the taxpayer, I guess it's it's ended the tradition of
• 25:42
  Speaker 3: the politician pays for the politician's own ad. We're doing
• 25:45
  Speaker 3: it now. We're funding government propaganda.
• 25:48
  Speaker 2: Yeah, exactly.
• 25:49
  Speaker 1: And, you know, we've covered so often the issues of
• 25:51
  Speaker 1: free speech and we'll continue to cover them talking about
• 25:54
  Speaker 1: the White House press corps and his shutdown of media
• 25:58
  Speaker 1: organizations that he doesn't like. But this is a different
• 26:00
  Speaker 1: side of that same coin, that if you really are
• 26:03
  Speaker 1: trying to set up, in place of a free press,
• 26:06
  Speaker 1: a propaganda network in which you use government money to
• 26:09
  Speaker 1: just spread your own messages... You know, this seems like
• 26:11
  Speaker 1: a textbook example.
• 26:13
  Speaker 3: So, yeah, I mean, there's no independent agencies. They all
• 26:17
  Speaker 3: serve this guy. It's the most corrupt administration by far.
• 26:21
  Speaker 3: It's more corrupt than Trump's last administration. And I mean,
• 26:24
  Speaker 3: the FCC is not going to do anything. The attorney
• 26:27
  Speaker 3: general is not going to do anything. What remedies still exist, professor,
• 26:33
  Speaker 3: if a federal agency or a chief executive just violates
• 26:36
  Speaker 3: the law? Can I? Can a taxpayer sue? Can Congress
• 26:40
  Speaker 3: intervene here? I mean, the Government Accountability Office, are they
• 26:44
  Speaker 3: an enforcement mechanism? I mean, is there anything? Or do
• 26:46
  Speaker 3: we just have to sit here and watch these swine
• 26:49
  Speaker 3: roll around in dough?
• 26:52
  Speaker 1: Yeah, I would imagine, actually, that that taxpayer lawsuit, that's
• 26:55
  Speaker 1: an interesting question. You know, often in court, in the
• 26:59
  Speaker 1: Supreme Court in particular, the question of who has standing
• 27:02
  Speaker 1: is going to be a big issue.
• 27:03
  Speaker 2: And so I'm going to have to think more about this, but.
• 27:05
  Speaker 1: I'll just explain what the obstacle is here. Who is
• 27:09
  Speaker 1: harmed most directly by what's happening? You know, who is
• 27:12
  Speaker 1: the individual that's being harmed by the fact that he's
• 27:15
  Speaker 1: crossing the line using public money for partisan purposes? I mean,
• 27:19
  Speaker 1: I guess you could say that, you know, a Democratic,
• 27:21
  Speaker 1: I would think possibly, I'm thinking it through with you
• 27:24
  Speaker 1: as we speak, but maybe a Democratic candidate who's saying,
• 27:27
  Speaker 1: you know, I'm running for Congress here and this president
• 27:30
  Speaker 1: is campaigning against me.
• 27:32
  Speaker 2: That's a pretty direct harm. That's not an abstract harm.
• 27:35
  Speaker 1: In establishment clause cases, when government is promoting religion in
• 27:39
  Speaker 1: a way that it shouldn't, a topic that you and
• 27:41
  Speaker 1: I have often talked about, the court is sometimes allowed
• 27:44
  Speaker 1: taxpayer standing. So you could try that here, but I
• 27:47
  Speaker 1: think it's less likely. So I think here a suit
• 27:50
  Speaker 1: possibly by Democratic members of Congress, you know, groups like
• 27:53
  Speaker 1: Democracy Forward that are bringing these suits often are bringing
• 27:57
  Speaker 1: them on behalf of members of Congress. So maybe we'll
• 27:59
  Speaker 1: look to them to see what happens here. But it
• 28:02
  Speaker 1: is a puzzle. I don't want to hide from it.
• 28:03
  Speaker 3: I mean, so let me just get this straight before
• 28:05
  Speaker 3: we hit the break. So the taxpayer gets the privilege
• 28:07
  Speaker 3: of funding the ad and then watching the ad and
• 28:12
  Speaker 3: then potentially funding the legal fight over whether the government
• 28:15
  Speaker 3: was allowed to buy the ad, right? This is like
• 28:18
  Speaker 3: the ultimate bundled service. Thank you, Trump. Brilliant.
• 28:20
  Speaker 2: All right.
• 28:21
  Speaker 1: And let me say one more thing about this, John, because,
• 28:23
  Speaker 1: you know, I have said this, but I can't say
• 28:26
  Speaker 1: it enough. When we talk about Trump's corruption, so often
• 28:30
  Speaker 1: you hear these stories and we think to ourselves, How
• 28:34
  Speaker 1: can this be?
• 28:35
  Speaker 2: How can our laws allow for this?
• 28:37
  Speaker 1: And I mentioned the idea of these ethics czars in
• 28:39
  Speaker 1: the past would have shut this down. And we see
• 28:41
  Speaker 1: now that those norms just don't work. And so it's obvious,
• 28:46
  Speaker 1: regardless of who brings a suit and whether or not
• 28:48
  Speaker 1: this suit I'm suggesting that a Democratic member of Congress
• 28:52
  Speaker 1: might bring goes through, that we need legislation to bar
• 28:57
  Speaker 1: this from happening and to make it clear. And I
• 29:00
  Speaker 1: think we don't have enough of that yet. And part
• 29:03
  Speaker 1: of it has to come with a specific answer to
• 29:06
  Speaker 1: the question of who can stop it, who has standing.
• 29:08
  Speaker 1: And you can do that through legislation. You could grant standing.
• 29:11
  Speaker 1: And I would think that would be an important thing
• 29:13
  Speaker 1: to do here to make it very clear that those
• 29:16
  Speaker 1: harmed by his ad, namely candidates on the other side
• 29:20
  Speaker 1: of the aisle, can bring suits in these circumstances.
• 29:23
  Speaker 3: Of course, Professor, meanwhile, in reality... Let's say it's 2029
• 29:27
  Speaker 3: and Attorney General Jack Smith has just been sworn in.
• 29:31
  Speaker 3: This ain't going to make the top 50 things he
• 29:33
  Speaker 3: goes after, is it? This is going to be forgotten.
• 29:35
  Speaker 2: A long list, John.
• 29:35
  Speaker 3: This will be forgotten like last year's Emmy winners. All right,
• 29:39
  Speaker 3: let's take a quick break. When we come back, you
• 29:42
  Speaker 3: are already terrified about the SAVE Act, but have you
• 29:45
  Speaker 3: taken time to be terrified about the SAVE voter database?
• 29:49
  Speaker 3: We'll tell you all about it when we return on
• 29:51
  Speaker 3: The Oath in the Office.
• 29:58
  Speaker 2: Hi, it's Corey.
• 29:59
  Speaker 1: I'm here with John because we want to urge you
• 30:02
  Speaker 1: to listen to a.
• 30:02
  Speaker 2: Great new podcast.
• 30:04
  Speaker 1: I was happy to be a guest recently, and this
• 30:07
  Speaker 1: is one that I think listeners to this show, to
• 30:09
  Speaker 1: The Oath in the Office, will love.
• 30:11
  Speaker 2: It's got a great name.
• 30:12
  Speaker 1: It's called Band Camp, as in book bands, and it's
• 30:15
  Speaker 1: about book bands. Each season, what the podcast does is
• 30:19
  Speaker 1: they take a book that's been banned and they read it.
• 30:22
  Speaker 1: The hosts talk about it. It's a mix of funny information.
• 30:26
  Speaker 1: And ultimately, it's really about free speech and why we
• 30:28
  Speaker 1: have a right to read what we want and hear
• 30:31
  Speaker 1: what we want and how dangerous it is to allow
• 30:33
  Speaker 1: books to be banned.
• 30:35
  Speaker 3: Yeah, it's a really cool show. Jennifer and Dan are
• 30:37
  Speaker 3: really funny. And The cool part about it is that
• 30:39
  Speaker 3: they've never read the books, so they're reading the books
• 30:42
  Speaker 3: out loud, chapter by chapter, and reacting live. So they
• 30:47
  Speaker 3: know the books have been banned. They don't know why yet,
• 30:49
  Speaker 3: and everyone gets to discover it together. And they've done
• 30:52
  Speaker 3: Kill a Mockingbird, Huckleberry Finn, Slaughterhouse-Five, Catcher in the Rye, 1984,
• 30:56
  Speaker 3: Wrinkle in Time, Handmaid's Tale, and hopefully someday one of
• 31:00
  Speaker 3: our books, Corey, because that is an aspiration.
• 31:02
  Speaker 1: If only we can get to that banned list, that'll
• 31:05
  Speaker 1: be a sign that we've made it.
• 31:07
  Speaker 2: Really is a great show, and I hope you'll check
• 31:09
  Speaker 2: it out.
• 31:09
  Speaker 3: My hope is that they'll at least ban this ad,
• 31:12
  Speaker 3: and that'll be as close as we can get to
• 31:14
  Speaker 3: being on Bandcamp, the podcast. Welcome back to The Oath
• 31:22
  Speaker 3: in the Office. Hey, Corey, this would be a good
• 31:23
  Speaker 3: time to remind everybody to subscribe already and write those
• 31:26
  Speaker 3: glowing reviews for the podcast.
• 31:29
  Speaker 2: Absolutely.
• 31:29
  Speaker 1: No matter where you're listening or watching us, if you're
• 31:32
  Speaker 1: on YouTube or Apple or Spotify or anywhere you get
• 31:35
  Speaker 1: your audio, podcast, push that button that says subscribe, send
• 31:38
  Speaker 1: it to a friend and write us a review.
• 31:41
  Speaker 3: Absolutely. So let's talk about one last bit of malfeasance here, Professor.
• 31:46
  Speaker 3: The Supreme Court on September 25th temporarily allowed states to
• 31:51
  Speaker 3: resume using the Trump administration's expanded SAVE database. That's what
• 31:56
  Speaker 3: they do to verify voter eligibility while the litigation is
• 32:00
  Speaker 3: still ongoing. Now, this system incorporates all these additional federal
• 32:04
  Speaker 3: records and people are saying, well, yeah, but this means
• 32:07
  Speaker 3: that inaccurate information or outdated information is going to be included. And,
• 32:12
  Speaker 3: you know, it's outdated and that's going to lead to
• 32:14
  Speaker 3: eligible citizens being improperly flagged or removed, maybe because they
• 32:18
  Speaker 3: moved and didn't change it with the voter registration. Three
• 32:22
  Speaker 3: justices descended from the Supreme Court's emergency order. What exactly
• 32:26
  Speaker 3: is the government trying to accomplish with the expanded SAVE database?
• 32:29
  Speaker 3: They just want to throw more people off the rolls, right?
• 32:31
  Speaker 3: That's all this is?
• 32:33
  Speaker 2: That's right.
• 32:33
  Speaker 1: It is a continued effort, and it's continuous with what
• 32:36
  Speaker 1: they tried with the post office, trying to convince states
• 32:40
  Speaker 1: that they had to check their list against a list that.
• 32:42
  Speaker 2: The post office would have and that the post office.
• 32:44
  Speaker 1: Would essentially refuse to make sure that ballots got to people.
• 32:48
  Speaker 1: And it's continuous, too, with a version of what they
• 32:51
  Speaker 1: were trying in the legislation they were trying to passed,
• 32:54
  Speaker 1: the SAVE Act, which hasn't thankfully passed. And, you know,
• 32:57
  Speaker 1: this is an attempt by the Department of Homeland Security
• 33:00
  Speaker 1: to take a fake issue, which is voter fraud, that
• 33:03
  Speaker 1: people are showing up, you know, non-citizens showing up and
• 33:06
  Speaker 1: voting and blow it up to some list that they
• 33:09
  Speaker 1: claim that they have of people who shouldn't be allowed
• 33:12
  Speaker 1: to vote. And it's a non-issue that they are essentially
• 33:15
  Speaker 1: using to try to cheat.
• 33:16
  Speaker 2: But I do want to say something that will give
• 33:18
  Speaker 2: people hope.
• 33:19
  Speaker 1: When people heard us talk about that post office case,
• 33:22
  Speaker 1: they heard the Well, fear in my voice and the
• 33:25
  Speaker 1: fact that I was very worried that the Supreme Court
• 33:27
  Speaker 1: was going to allow the post office essentially to shave
• 33:29
  Speaker 1: off enough votes that it might have made a difference
• 33:32
  Speaker 1: in the election, given the massive number of people that
• 33:35
  Speaker 1: vote by mail.
• 33:36
  Speaker 2: This isn't of the same order of magnitude.
• 33:39
  Speaker 1: You know, what the Department of Homeland Security has on
• 33:41
  Speaker 1: their list, they can't force states, for instance, to abide
• 33:45
  Speaker 1: by anything to do with this list. We're within the
• 33:47
  Speaker 1: 60-day period where there are all sorts of protections when
• 33:51
  Speaker 1: it comes to purges of the voter rolls. So, yes,
• 33:54
  Speaker 1: they're trying to enable basically those states that want to
• 33:57
  Speaker 1: engage in suppressing the vote to do so. But it's
• 34:01
  Speaker 1: a last ditch attempt and one that I really don't
• 34:03
  Speaker 1: think is going to make a big difference. There have
• 34:05
  Speaker 1: been some who have criticized people like me for being alarmist,
• 34:08
  Speaker 1: for instance, about the post office case and saying, you know,
• 34:11
  Speaker 1: you're worrying too much. And, you know, I absolutely reject that.
• 34:14
  Speaker 1: I think that democracy is on the line. They were
• 34:17
  Speaker 1: trying to cheat. But here I will say we don't
• 34:19
  Speaker 1: need to be alarmist. This is a continued, but last ditch.
• 34:23
  Speaker 1: And I would actually say desperate attempt to essentially cheat
• 34:26
  Speaker 1: in this election.
• 34:27
  Speaker 2: And it's not going to work.
• 34:29
  Speaker 3: OK, well, I don't have to be alarmed, but I
• 34:30
  Speaker 3: am allowed to be enraged, right? Because let's get a
• 34:33
  Speaker 3: few things out of the way. There is no problem
• 34:35
  Speaker 3: with voter impersonation in this country. Now, these voter I.D. laws,
• 34:40
  Speaker 3: here's why the Democrats are walking around in clown shoes
• 34:42
  Speaker 3: all the time. They don't know how to talk about this, professor.
• 34:45
  Speaker 3: They say voter I.D. And that we know is to
• 34:49
  Speaker 3: make it harder for some people to exercise their rights,
• 34:52
  Speaker 3: not just black folks, low income people, seniors, certainly college students,
• 34:57
  Speaker 3: especially the ones who go to school in cities. They're
• 35:01
  Speaker 3: not likely to have driver's licenses. So it's going to
• 35:04
  Speaker 3: be easier to make it harder for them to vote.
• 35:06
  Speaker 3: This is they just shave off votes of women who've
• 35:08
  Speaker 3: changed their name to say that they do all over
• 35:10
  Speaker 3: the place. And there is no problem with voter impersonation.
• 35:13
  Speaker 3: No election in this country has ever been swayed. by
• 35:16
  Speaker 3: voter impersonation. So yes, obviously there's a legitimate interest in
• 35:21
  Speaker 3: ensuring that only eligible citizens vote. To this day, Donald
• 35:24
  Speaker 3: Trump maintains that 3 million undocumented immigrants voted for Hillary
• 35:28
  Speaker 3: Clinton in 2016. And that's the only reason why she
• 35:32
  Speaker 3: won the popular vote. and adults in his orbit act
• 35:35
  Speaker 3: like this is fine. Here's the funny thing about undocumented immigrants, Corey.
• 35:39
  Speaker 3: You know what they do? They love to go vote illegally,
• 35:42
  Speaker 3: even though they can't register. They like to show up
• 35:45
  Speaker 3: at the polling places to vote illegally because undocumented immigrants,
• 35:48
  Speaker 3: here's their big goal. They want to get caught. So
• 35:51
  Speaker 3: they show up to vote illegally. Now, when I phrase
• 35:54
  Speaker 3: it this way, you see how this is all ridiculous
• 35:56
  Speaker 3: and they're using undocumented immigrants as a way To strip
• 36:01
  Speaker 3: rights away from Americans or at least make it harder
• 36:03
  Speaker 3: for some folks to vote. So shouldn't the government have
• 36:06
  Speaker 3: to prove? Shouldn't the burden be on the government to
• 36:10
  Speaker 3: prove that a voter is ineligible before removing that voter
• 36:14
  Speaker 3: rather than just requiring the voter prove they're eligible? I mean,
• 36:18
  Speaker 3: they're just throwing people off the list and then the
• 36:20
  Speaker 3: voters got to prove it. What is that? The government
• 36:22
  Speaker 3: should have to prove they have a right to throw
• 36:24
  Speaker 3: them off the list first, right?
• 36:26
  Speaker 1: I just think, John, you know, the way just to
• 36:29
  Speaker 1: reiterate some of what you said, the whole premise here
• 36:33
  Speaker 1: is that there are a lot of people committing this
• 36:35
  Speaker 1: specific form of voter fraud that when the Heritage Foundation
• 36:39
  Speaker 1: looked into it, they could find like, you know, in
• 36:41
  Speaker 1: the low hundreds of people who had voted illegally in
• 36:44
  Speaker 1: the way they're claiming. And these insane inflated numbers that
• 36:48
  Speaker 1: it's somehow in the thousands or even the millionths It's
• 36:51
  Speaker 1: completely false. So you know from the get-go that whatever solution,
• 36:55
  Speaker 1: quote-unquote solution, to this non-problem that they're trying to come
• 36:58
  Speaker 1: up with is itself illegitimate. And that's exactly what's going
• 37:03
  Speaker 1: on here. They're trying to solve a non-problem with a
• 37:05
  Speaker 1: solution that really is about suppressing the vote. You said
• 37:08
  Speaker 1: another thing that I don't want people to miss, and
• 37:11
  Speaker 1: we have so many great former episodes. And one that I,
• 37:14
  Speaker 1: if you missed it and you're listening to this, that
• 37:16
  Speaker 1: I would just urge you to go listen to, is
• 37:18
  Speaker 1: a discussion with Stacey Abrams, the great protector of voting rights.
• 37:22
  Speaker 2: Former leader in the Georgia Statehouse.
• 37:26
  Speaker 1: And she just made the point so clearly that everyone
• 37:29
  Speaker 1: requires some form of voter ID. What this move towards
• 37:33
  Speaker 1: voter ID that was in the SAVE Act, again, which
• 37:35
  Speaker 1: didn't pass, what it tried to do was to choose
• 37:38
  Speaker 1: IDs that Democratic voters didn't have deliberately. And that's what's
• 37:43
  Speaker 1: going on here. And again, this isn't enough to make
• 37:46
  Speaker 1: a difference. And it isn't going to be imposed, a
• 37:49
  Speaker 1: list that's going to be imposed on any state.
• 37:51
  Speaker 2: Or any voter.
• 37:53
  Speaker 1: It might be one that I worry that Republican red
• 37:56
  Speaker 1: state election officials might try to glom onto and to
• 37:59
  Speaker 1: use it for a purge of their voter rolls. And,
• 38:01
  Speaker 1: you know, I think litigation groups are ready for that
• 38:03
  Speaker 1: because there's a lot of suspicion of this late in
• 38:06
  Speaker 1: the game of any purge of voter rolls.
• 38:08
  Speaker 2: So, you know, it's serious.
• 38:09
  Speaker 1: We should be outraged, absolutely, as you said, but I
• 38:13
  Speaker 1: feel like this one isn't at the same order of
• 38:15
  Speaker 1: magnitude of the post office, you know, threats to democracy
• 38:18
  Speaker 1: come in degrees. And that post office threat, the threat
• 38:22
  Speaker 1: of the SAVE Act, they were truly could make a
• 38:26
  Speaker 1: difference in this midterm election. And this thing is serious,
• 38:30
  Speaker 1: but not of the same order of magnitude.
• 38:32
  Speaker 3: Well, this is going to be the last election Donald
• 38:34
  Speaker 3: Trump's ever going to care about, right? Which is why
• 38:36
  Speaker 3: he was trying to strong arm John Thune into passing
• 38:38
  Speaker 3: the SAVE Act. But the rest of the Republicans in
• 38:40
  Speaker 3: the Senate are going to have elections beyond this next one.
• 38:43
  Speaker 3: And that is why they shut that down. They can
• 38:46
  Speaker 3: disobey him when it comes to their own damn jobs,
• 38:48
  Speaker 3: can't they? Corey, while I still have you, last week
• 38:51
  Speaker 3: we were beholding with awe and wonder Fox News telling
• 38:56
  Speaker 3: the White House, you leave CNN alone. And the weirdest
• 39:01
  Speaker 3: unity rally of corporate media seems to have worked. As
• 39:04
  Speaker 3: you know, a federal judge ordered the White House to
• 39:06
  Speaker 3: temporarily restore access for CNN, MSNOW and those filthy leftists
• 39:11
  Speaker 3: at Politico. after Trump tried to bar them. Now, this
• 39:14
  Speaker 3: is hilarious for many reasons. He doesn't have a press secretary,
• 39:18
  Speaker 3: and Susie Wiles was away, so it looks like Baby
• 39:21
  Speaker 3: got to run around the house. The judge concluded the
• 39:24
  Speaker 3: outlets were unlikely to succeed on their due process claim.
• 39:28
  Speaker 3: So you know, now that it's passed, how does it look?
• 39:31
  Speaker 3: The administration was saying, well, they can just report from
• 39:33
  Speaker 3: outside the White House. That's not necessarily a sufficient answer
• 39:37
  Speaker 3: under the First Amendment, right? I mean, when they said
• 39:40
  Speaker 3: it's a privilege, not a right. Well, yeah, but you
• 39:43
  Speaker 3: already gave them the credentials. This is about you taking
• 39:47
  Speaker 3: them away. Isn't that the factor here?
• 39:50
  Speaker 2: Absolutely.
• 39:50
  Speaker 1: You know, it is true to say, you know, not
• 39:52
  Speaker 1: everybody has a right to enter the White House and
• 39:54
  Speaker 1: they have security concerns. We talked last week about a
• 39:57
  Speaker 1: case involving the Nation magazine in which the court did
• 40:00
  Speaker 1: lay that out. A court, I should say, a court
• 40:02
  Speaker 1: of appeals laid out the idea that, you know, if
• 40:06
  Speaker 1: government had a legitimate security concern for barring an individual reporter,
• 40:09
  Speaker 1: then they might be allowed to do it. But what
• 40:12
  Speaker 1: they also made clear and what's clear now, thankfully, and
• 40:15
  Speaker 1: I was predicting this would happen and it has happened,
• 40:18
  Speaker 1: is that the courts have said you can't target a viewpoint.
• 40:23
  Speaker 1: You can't say I don't like your outlet's opinion or
• 40:25
  Speaker 1: the opinion of its viewers or readers.
• 40:29
  Speaker 2: And say you can't come in here. And remember what
• 40:31
  Speaker 2: they did here.
• 40:32
  Speaker 1: The previous cases, like involving Jim Acosta, for instance, or
• 40:35
  Speaker 1: involving this Nation magazine reporter, We're about.
• 40:39
  Speaker 2: Individuals being barred. These are whole outlets. It's saying CNN
• 40:43
  Speaker 2: can't come in.
• 40:44
  Speaker 1: And clearly what's going on, and we know this because
• 40:46
  Speaker 1: the president said it, he robbed the administration lawyers of
• 40:50
  Speaker 1: the ability to say, oh, this is just about security.
• 40:52
  Speaker 2: I don't think so.
• 40:53
  Speaker 1: He told us it's because he doesn't like them using
• 40:56
  Speaker 1: that famous phrase, fake news, which means I don't like
• 40:59
  Speaker 1: what you're reporting about me. So I think that's, you know,
• 41:03
  Speaker 1: it's right. This is, you know, something that might continue.
• 41:06
  Speaker 1: I'll tell you why I don't think it's going to continue,
• 41:08
  Speaker 1: because the president realized that the way that news works
• 41:12
  Speaker 1: in the coverage of the White House is that there's
• 41:15
  Speaker 1: a pool and all of these different organizations share filming,
• 41:19
  Speaker 1: for instance, of the president recording what he's saying. And
• 41:23
  Speaker 1: when one day, all of a sudden he's, you know,
• 41:25
  Speaker 1: there was supposed to be reporting, there was an event
• 41:27
  Speaker 1: about this helipad that he's built.
• 41:30
  Speaker 2: There was no sound. That's because the pool wasn't functional.
• 41:33
  Speaker 1: So it might well be that on the one hand,
• 41:36
  Speaker 1: he's learning the constitutional lesson that you can't just shut
• 41:38
  Speaker 1: down the press that you don't like, or at least
• 41:41
  Speaker 1: his staff is learning that lesson. And Susie Wiles is
• 41:44
  Speaker 1: probably telling him that. But there also is the embarrassment
• 41:47
  Speaker 1: factor of like, you know, this guy loves to speak
• 41:49
  Speaker 1: and to be heard. And all of a sudden he
• 41:51
  Speaker 1: was speaking without being heard.
• 41:53
  Speaker 3: Well, and by now he's probably, you know, forgotten that
• 41:55
  Speaker 3: ever happened, but I want to get off this. But
• 41:57
  Speaker 3: one last thing you mentioned how he accused it of
• 41:59
  Speaker 3: being fake news. And that was the reason besides the
• 42:02
  Speaker 3: fact that they never cited any lie CNN ever aired
• 42:07
  Speaker 3: without a retraction, they just said fake news.
• 42:09
  Speaker 2: And okay.
• 42:11
  Speaker 3: If the white house says a reporter or a news
• 42:13
  Speaker 3: organization is spreading false information, does that even give the
• 42:17
  Speaker 3: government a legitimate basis to exclude them? I mean, if
• 42:21
  Speaker 3: they were, because asking for Democratic presidents when Fox News
• 42:24
  Speaker 3: is in the room, you know, Fox News of the
• 42:26
  Speaker 3: Obama wasn't born here will be greeted as liberators. There
• 42:29
  Speaker 3: are WMDs. The 2020 election was rigged. Like we have
• 42:32
  Speaker 3: news organizations that have demonstrably proven to tell lies. If
• 42:35
  Speaker 3: it's true, can the White House just ban them from
• 42:38
  Speaker 3: coming in?
• 42:39
  Speaker 1: Well, I'll say what you can't do. And then we
• 42:40
  Speaker 1: could think of some examples that would be hard cases.
• 42:43
  Speaker 1: I should say, if Obama did try to ban Fox News,
• 42:46
  Speaker 1: we wouldn't have ever heard the end of how he
• 42:47
  Speaker 1: was an abuser of free speech. And so I guess
• 42:51
  Speaker 1: what I would say is when this president says fake news,
• 42:55
  Speaker 1: we know what he's claiming is fake or criticisms, opinions,
• 42:59
  Speaker 1: information about his wrongdoing, even when it's true. So he's
• 43:02
  Speaker 1: using that term in a way that, you know, is
• 43:05
  Speaker 1: really about opinion. And that you cannot do under the
• 43:08
  Speaker 1: First Amendment. You can't be very clear about it. You
• 43:11
  Speaker 1: can't create a public forum where you invite people in
• 43:14
  Speaker 1: of different political viewpoints, different opinions. and then pick and
• 43:18
  Speaker 1: choose who you allow in. So if in your example,
• 43:22
  Speaker 1: Obama was to say, I'm going to ban Fox News
• 43:24
  Speaker 1: because I don't like what they're saying about me.
• 43:26
  Speaker 2: I don't like their opinions.
• 43:27
  Speaker 1: I don't like the fact that they think that the
• 43:29
  Speaker 1: tan suit is inappropriate.
• 43:31
  Speaker 2: No way. That's a First Amendment violation.
• 43:34
  Speaker 1: Your harder example, which we can think more about, and
• 43:37
  Speaker 1: I'll acknowledge it as harder, is imagine there really is
• 43:40
  Speaker 1: an organization that is like 100% propagandist that isn't actually
• 43:46
  Speaker 1: doing journalism and is saying documented false things.
• 43:49
  Speaker 2: Again and again, that might be a.
• 43:51
  Speaker 1: Different question because one of the credentials that you have
• 43:55
  Speaker 1: to present in order to get into this White House
• 43:57
  Speaker 1: briefing room is that you are in fact a journalist.
• 44:00
  Speaker 3: Right, like My Pillow News by Mike Lindell.
• 44:02
  Speaker 1: Yeah, and so I think banning Mike Lindell, for instance,
• 44:05
  Speaker 1: is a good example of something that would be allowable
• 44:07
  Speaker 1: because the criteria of whether or not you are actually
• 44:10
  Speaker 1: a journalist trying to report facts or a propagandist might
• 44:14
  Speaker 1: matter here.
• 44:15
  Speaker 3: If a Democrat ever did ban Mike Lindell and MyPillow
• 44:19
  Speaker 3: News from the White House, I think it would be
• 44:21
  Speaker 3: giving MAGA the most precious gift they can receive, which
• 44:25
  Speaker 3: is white victimhood. Oh, there's nothing they like more than
• 44:30
  Speaker 3: telling us about their victimhood. Professor Brett Schneider, we have
• 44:33
  Speaker 3: covered immigration enforcement and voter databases and government-funded political messaging
• 44:39
  Speaker 3: and this White House press ban. Is there a constitutional
• 44:44
  Speaker 3: principle that can connect all of these disputes?
• 44:48
  Speaker 2: Absolutely.
• 44:50
  Speaker 1: Each one of these problems that we've talked about and
• 44:53
  Speaker 1: cases going into it is complicated.
• 44:56
  Speaker 2: It requires a nuanced set of facts. There are hypotheticals,
• 45:00
  Speaker 2: but there.
• 45:00
  Speaker 1: Is also a danger, I think, in keeping them isolated
• 45:04
  Speaker 1: because as complicated as they are individually, together they stand
• 45:08
  Speaker 1: for a simple proposition that which is that this is
• 45:11
  Speaker 1: a president that doesn't believe there are any constraints on
• 45:14
  Speaker 1: the White House or the president himself in the absolute power,
• 45:18
  Speaker 1: prerogative power, essentially, that he's claiming to deport people, not
• 45:21
  Speaker 1: to their home countries, but to third countries that they
• 45:23
  Speaker 1: don't even know about. What better illustration is there of
• 45:27
  Speaker 1: a total disregard of the constitutional right of due process
• 45:30
  Speaker 1: and the banning of news organizations that he doesn't like
• 45:34
  Speaker 1: and assault on free speech? And, you know, what's going
• 45:38
  Speaker 1: on here when you add it all up is an
• 45:39
  Speaker 1: attempt at dictatorship, an attempt to take the presidency and
• 45:44
  Speaker 1: turn it into something more akin to, well, what some
• 45:47
  Speaker 1: of these countries that are abusing human rights, some of
• 45:49
  Speaker 1: these third countries that these individuals are being sent to
• 45:52
  Speaker 1: in which you have no ability to speak back. And
• 45:55
  Speaker 1: that's true, too, of the propagandist attempt to take taxpayer
• 45:59
  Speaker 1: money and to use it to do campaign ads. All
• 46:02
  Speaker 1: of these have a common theme, which is the drive
• 46:04
  Speaker 1: towards dictatorship.
• 46:06
  Speaker 3: Five weeks, sir. Five weeks it is. Professor Bretschneider, thank
• 46:09
  Speaker 3: you again for a terrific episode. Where can our listeners
• 46:12
  Speaker 3: follow you the other six days of the week and
• 46:14
  Speaker 3: keep up with your constitutional brilliance?
• 46:17
  Speaker 1: Well, the Oath in the Office podcast has become my passion, John.
• 46:20
  Speaker 1: It's a pleasure to do it with you every week.
• 46:21
  Speaker 1: You can find us on Substack, where there's an Oath
• 46:24
  Speaker 1: in the Office Substack. There'll be links to these stories.
• 46:27
  Speaker 1: You could go even deeper. Essays about some of the
• 46:30
  Speaker 1: examples that we're talking about, legal analysis.
• 46:33
  Speaker 2: YouTube, if you want to watch.
• 46:34
  Speaker 1: Us, not just listen to us. I'm hearing from a
• 46:36
  Speaker 1: lot of listeners that they also watch us. You can
• 46:39
  Speaker 1: also subscribe anywhere you get your audio podcasts. And John,
• 46:43
  Speaker 1: I've got to say, before turning it back to you,
• 46:45
  Speaker 1: congratulations on the American Book Award, which you received out
• 46:49
  Speaker 1: in California for your brilliant book, Separation of Church and Hate.
• 46:55
  Speaker 1: being recognized. We heard last week Mickey Dolan's talking about it,
• 47:00
  Speaker 1: and I know it's playing a role in American conversations everywhere,
• 47:03
  Speaker 1: and what a well-deserved honor.
• 47:05
  Speaker 2: So congrats on that.
• 47:07
  Speaker 3: Thank you, Professor. The follow-up book is coming out this Easter,
• 47:10
  Speaker 3: and I'm turning in the final draft of it right now,
• 47:12
  Speaker 3: and I haven't slept or bathed in months, so it's
• 47:14
  Speaker 3: very nice to hear that. Thank you so very much.
• 47:17
  Speaker 3: I want to tell all the nice folks, you can
• 47:18
  Speaker 3: hear me on SiriusXM, Progress Channel 127, five days a week,
• 47:22
  Speaker 3: or on the John Fuglesang podcast. And hey, let's thank
• 47:25
  Speaker 3: Wendy and Beowulf and all the great people who put
• 47:28
  Speaker 3: the show together every week. Corey, am I forgetting anybody
• 47:30
  Speaker 3: or any announcements? We good?
• 47:32
  Speaker 2: We're good.
• 47:33
  Speaker 3: All right.
• 47:34
  Speaker 2: Tune in next week.
• 47:35
  Speaker 3: Tune in next week. I'm John Fuglesang with Corey Bretschneider
• 47:37
  Speaker 3: reminding you, please. Teach your kids, don't deport vulnerable people
• 47:43
  Speaker 3: to undisclosed locations where they could be tortured without giving
• 47:46
  Speaker 3: them a chance to object. Please. It starts in the home.
• 47:49
  Speaker 3: We'll see you next time on The Oath in the Office.