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Trump's Illegal Attack on Venezuela: Congress Must Step In + Jack Smith’s Testimony · The Oath and The Office

0:09
Speaker 1: Welcome to The Oath in the Office Podcast, coming to
0:12
Speaker 1: you live from America, where the entire world now knows
0:15
Speaker 1: our president has had at least three dimension tests that
0:18
Speaker 1: he can remember. I'm John fugel Sang, joined as always
0:21
Speaker 1: by the star of The Oath in the Office podcast,
0:24
Speaker 1: professor and author of the book The Oath in the Office,
0:27
Speaker 1: A Guide to the Constitution for Future Presidents, Corey Bretschneider. Corey, Sorry,
0:31
Speaker 1: it's a slow news week. Welcome back.
0:33
Speaker 2: Yeah. Wow. I mean, you know, when we started this show,
0:37
Speaker 2: I was pretty confident that every week we would have
0:40
Speaker 2: some constitutional crisis to talk about. But you know, it
0:42
Speaker 2: could have been the odds were against it, but it
0:45
Speaker 2: could have been that.
0:46
Speaker 1: You know, also constitutional challenges. They're at all crises, right
0:50
Speaker 1: some we're just constitutional challenges that more competent generations could
0:54
Speaker 1: deal with. I mean, I don't even know where to begin.
0:57
Speaker 1: Friday night, after I got off the air on Sirius XM,
1:01
Speaker 1: Donald Trump finally illegally invaded Venezuela while we were asleep,
1:05
Speaker 1: which I thought was rude. Professor, if you're going to
1:07
Speaker 1: start a war, have the decency to do it during
1:09
Speaker 1: normal business hours, like a proper sociopath. Monday this week
1:13
Speaker 1: in New York, Maduro pled not guilty to charges of
1:16
Speaker 1: narco terrorism, conspiracy, and other alleged crimes on his first
1:20
Speaker 1: day in US federal court. Turns out the indictment against
1:24
Speaker 1: him and his wife is a little flimsy, rests very
1:27
Speaker 1: heavily on a meeting his wife had before he was
1:30
Speaker 1: ever president. But Donald Trump is treating it as a win.
1:34
Speaker 1: He began bragging about this on his website, that he
1:37
Speaker 1: bombed Venezuela, kidnapped, the president flowed him out of the country. Corey,
1:41
Speaker 1: I have no doubt this will turn out every bit
1:44
Speaker 1: as smoothly as Libya and Iraq and Afghanistan and Haiti
1:48
Speaker 1: and Honduras. And we have to say this again. Maduro's
1:51
Speaker 1: a bad guy. He's corrupt, he's brutal, he's violent, he's
1:54
Speaker 1: very anti democratic. But I mean, I think the problem
1:57
Speaker 1: is Trump didn't overthrow a dictator. He may have officially
2:00
Speaker 1: become one. The administration insists the raid was not an
2:04
Speaker 1: act of war, but a law enforcement action to apprehend
2:08
Speaker 1: an indicted criminal, which is what they should have said
2:11
Speaker 1: the Afghanistan war was, you know, I mean, I think
2:13
Speaker 1: Molly Ivan said, Korea was a war they called a
2:15
Speaker 1: police action, and war on Terror was a police action
2:19
Speaker 1: they called a war. But under the US Constitution, let's
2:23
Speaker 1: just go to the basics. I know, we haven't legally
2:25
Speaker 1: declared war in this country since nineteen forty one. Who
2:28
Speaker 1: has the power to initiate war? And how narrow are
2:32
Speaker 1: the exceptions? What is Article one actually require and what
2:36
Speaker 1: powers this article to not give a president? I was
2:39
Speaker 1: writing down my questions watching the coverage all weekend for.
2:41
Speaker 2: You, well, I think this is always a good thing
2:43
Speaker 2: to do. We'll come back, of course, to the case
2:46
Speaker 2: at hand, and what I think is an egregious violation
2:50
Speaker 2: of international law and domestic law. And let's start with
2:52
Speaker 2: the basics. As you said, our constitution does something that
2:56
Speaker 2: Britain that the British system of government didn't do. They
2:59
Speaker 2: combined the war powers of carrying out the war, acting
3:03
Speaker 2: as commander in chief and also deciding whether or not
3:06
Speaker 2: to initiate a war in the crown, in the monarch.
3:09
Speaker 2: And the idea of the American framing founding was this
3:13
Speaker 2: is too dangerous that we really want to separate out
3:16
Speaker 2: the executive decisions about how to carry a war out
3:20
Speaker 2: the commander in chief role from the decision of whether
3:24
Speaker 2: or not to go to war, and the Framers really
3:27
Speaker 2: knew that creating that division, And just to point out
3:31
Speaker 2: what they did to answer your question, they Article two
3:34
Speaker 2: creates the president and limits it, and it gives the
3:37
Speaker 2: war the commander in chief power to the president. Article
3:41
Speaker 2: one gives the power to declare or initiate, in other words,
3:44
Speaker 2: initiate war to Congress. And they did that for a reason,
3:48
Speaker 2: which is that they wanted Congress to be careful. They
3:50
Speaker 2: knew that the decision to go to war wasn't just
3:54
Speaker 2: a separate, small foreign policy issue. It really would consume
3:58
Speaker 2: the nation, and so they wanted the rather be slow
4:01
Speaker 2: deliberate in that decision, and that's why they gave it
4:05
Speaker 2: to the Congress, not to the president. Now, you know,
4:08
Speaker 2: it is right to say that we haven't formally declared
4:11
Speaker 2: war in quite some time, but we have had resolutions,
4:15
Speaker 2: and to my mind, there really isn't a difference between
4:17
Speaker 2: declaring war and having resolutions. So we had an attempt
4:21
Speaker 2: to reclaim the War power and the War Powers Act
4:23
Speaker 2: at the end of the Nixon administration, which created rules
4:26
Speaker 2: for certain actions that could be within thirty or sixty
4:31
Speaker 2: days if they were military or even police actions, but
4:33
Speaker 2: required eventually an act by Congress. We had Congress Bush.
4:39
Speaker 2: HW Bush didn't want to, in the Quate invasion go
4:43
Speaker 2: to Congress, but eventually was persuaded to do so, and
4:46
Speaker 2: the Iraq war Congress deliberated and there was a vote. So,
4:51
Speaker 2: you know, the counter example to all this, which is
4:53
Speaker 2: what we'll get into, is Panama, which was a police
4:56
Speaker 2: action the way that hw Bush put it. But I
4:59
Speaker 2: think I think that that really doesn't fit what's going
5:01
Speaker 2: on here. I think this is a blatant violation of
5:04
Speaker 2: that requirement that Congress initiate war. And there's plenty of
5:07
Speaker 2: blame to go around, as we'll get into later. Part
5:10
Speaker 2: of the blame is Congress refusing to take the power
5:13
Speaker 2: for itself. Nobody's gonna give you that power that presidents
5:16
Speaker 2: always want to ignore Congress, and so part of the
5:19
Speaker 2: faultiers is the US Congress.
5:21
Speaker 1: Sure well, I mean, I think the first casualty in
5:23
Speaker 1: American wars the twenty first century has been the English
5:26
Speaker 1: language and the way that the language has been abused
5:29
Speaker 1: to soften up a lot of illegal actions. And we
5:31
Speaker 1: talked about this a lot under the Bush presidency, and
5:33
Speaker 1: by golly, I talked about it a lot under the
5:35
Speaker 1: Obama presidency as well. How imminent threat means if we
5:39
Speaker 1: think this twelve year old boy might grow up to
5:41
Speaker 1: be a terrorist, he's an imminent threat and we can
5:43
Speaker 1: kill him. We've seen lots of such abuses. So let
5:46
Speaker 1: me ask some really dumb questions here. Can a president
5:51
Speaker 1: lawfully invade a sovereign nation without any authorization from Congress
5:57
Speaker 1: simply by calling it a police action? Because this this
6:01
Speaker 1: seems to be more of a rhetorical category than a
6:04
Speaker 1: legal category. Corps, he tell me if I'm.
6:06
Speaker 2: Wrong, Well, I'm going to eventually agree with you. I
6:10
Speaker 2: think the agreement about the about the fact that this
6:14
Speaker 2: isn't illegal war. But there is an argument that I
6:17
Speaker 2: think we've got to put on the table and we'll
6:18
Speaker 2: consider it, which is that in the Panama case, the
6:22
Speaker 2: argument was that Noriega was an unlawful dictator. He had
6:27
Speaker 2: come to power through coup, and this wasn't a war,
6:30
Speaker 2: it was a police action to remove him, and that
6:32
Speaker 2: it was done with the cooperation of the Panamanian people,
6:35
Speaker 2: and in fact, the new leader of Panama, a rightful
6:38
Speaker 2: leader of Panama was sworn in the same night that
6:40
Speaker 2: they removed Norjega, So you know, so there is precedent
6:45
Speaker 2: and there is a case. Eleventh Circuit Federal Court of
6:49
Speaker 2: Appeals did decide that not that this was a legal war,
6:53
Speaker 2: but they gestured towards that idea by saying that pointing
6:57
Speaker 2: out that Nordega had declared war on the States, and
7:00
Speaker 2: so defensive wars are not aggressive wars. And there isn't
7:04
Speaker 2: a need for the president to have the consent of Congress, right,
7:08
Speaker 2: So that's one difference. And ultimately they rejected the idea
7:12
Speaker 2: that this was the legitimate sovereign of Panama, so they
7:15
Speaker 2: rejected the sovereign immunity arguments.
7:17
Speaker 1: Oh so glad the language worked out in their favor
7:19
Speaker 1: that way.
7:20
Speaker 2: So I think that probably was an illegal action too.
7:23
Speaker 2: But there are many differences here. For one thing, there
7:26
Speaker 2: wasn't that kind of cooperation. I don't think, by the way,
7:29
Speaker 2: it was a police action, although I've given you a
7:31
Speaker 2: route to saying how it would be like Venezuela.
7:34
Speaker 1: They lied about the reasons. Like Venezuela. They lied about
7:36
Speaker 1: the reasons too. That's very important, I think.
7:38
Speaker 2: But go on, yeah, I mean in the Venezuela case.
7:41
Speaker 2: You heard Trump say that he met with oil executives,
7:45
Speaker 2: you know, and didn't meet with Congress, and that's who
7:48
Speaker 2: he was collaborating with, and so his motivation is pretty transparent.
7:52
Speaker 1: Frum's the only member of the Republican Party telling the
7:54
Speaker 1: truth about this invasion right now, Professor, sorry glhead.
7:57
Speaker 2: That actually is the theme. You know, during their travel
7:59
Speaker 2: bank case, he often said, oh, no, it is a
8:01
Speaker 2: Muslim band, or I preferred the first version of it,
8:04
Speaker 2: which was, you know, clearly what I was trying to do,
8:06
Speaker 2: a complete total shutdown of Muslim immigration into the United States.
8:09
Speaker 2: And here he's telling us it's about the oil. So
8:12
Speaker 2: you know, he's got his legal rationale, and you get
8:15
Speaker 2: the sense that in the White House everybody's like, okay,
8:17
Speaker 2: don't say the real reason, and there he comes out
8:19
Speaker 2: and says the real reason, so that you know, this
8:23
Speaker 2: is either about I think the other things it could
8:25
Speaker 2: be about. Which is more frightening is what sometimes being
8:29
Speaker 2: referred to as the Trump doctrine, the desire to control
8:32
Speaker 2: and dominate Latin America to eventually replace in Cuba the
8:38
Speaker 2: regime there Greenland, we were talking about.
8:41
Speaker 1: Well, hey, hey, let we'll get to that, can I
8:43
Speaker 1: can I bring it back at Panama for a second,
8:45
Speaker 1: so they have more dumb questions here again because I
8:48
Speaker 1: I'm just the mook copying off your paper on the
8:50
Speaker 1: SAT Day, Corey. But I still don't see how labeling
8:54
Speaker 1: changes constitutional reality. I mean, if what happened in Panama,
8:59
Speaker 1: which they were using as a precedent, wasn't actually a
9:02
Speaker 1: constitutional action at the time, right, does something become lawful
9:08
Speaker 1: through repetition? I mean, is this a precedent or is
9:11
Speaker 1: this I said it on Serious Sex seventy last night.
9:14
Speaker 1: This feels like precedent laundering.
9:16
Speaker 2: The fact that it's been done before and that it
9:18
Speaker 2: was done by President H. W. Bush doesn't mean that
9:20
Speaker 2: it was lawful then, and I think there's a very
9:22
Speaker 2: good argument to suggest that it wasn't. There are these differences.
9:25
Speaker 2: I am possibly compelled by the idea that because Noriega
9:29
Speaker 2: had declared war on the United States that this was
9:31
Speaker 2: a different category. That was a stupid thing to do.
9:34
Speaker 2: I think, absent that it would have been much harder
9:36
Speaker 2: to make the case. But you know here there's no
9:40
Speaker 2: such thing. Thedora didn't declare war on the United States.
9:43
Speaker 2: It was an aggressive war. And to let me come
9:45
Speaker 2: back to basics. Look, Congress has the power, the sole power,
9:51
Speaker 2: to initiate war, and this is you know, going and
9:54
Speaker 2: bombing a foreign country, sending teams in to remove the leader.
9:58
Speaker 2: That is an aggressive act of war. And there is
10:01
Speaker 2: no laundering it by claiming it's a police action, because
10:05
Speaker 2: that's not the motivation. I don't think it would excuse
10:08
Speaker 2: it if it was. You know the details of the
10:10
Speaker 2: Panama case aside and the difficulties there. So even if that,
10:14
Speaker 2: I don't think that was a legal war. But even
10:17
Speaker 2: if it was, it doesn't the precedent doesn't apply here.
10:20
Speaker 1: I want to tell everyone if you get a chance
10:22
Speaker 1: to rent the Academy Award winner for Outstanding Documentary in
10:26
Speaker 1: nineteen ninety three, the Panama Deception, which explains what this
10:29
Speaker 1: was all about. Jimmy Carter was a little too Christian
10:32
Speaker 1: to these people, and so the Christian nationalists tried to
10:35
Speaker 1: take the Jesus out of that deal. Corey, what, here's
10:40
Speaker 1: another one, d one because the people saying, oh, it's
10:43
Speaker 1: a war, and then the right wings saying, oh no,
10:45
Speaker 1: it's the shortest war in history. It's already over. And
10:48
Speaker 1: if you believe that I have a used mission accomplished
10:50
Speaker 1: banner I want to sell because this White House has
10:54
Speaker 1: no idea how to manage the post Maduro Venezuela. They
10:58
Speaker 1: say we're going to run it. That I mean Steven Miller,
11:00
Speaker 1: because things are going so well here. I mean, I
11:03
Speaker 1: mean they really thought that military action was done. When
11:06
Speaker 1: George Bush is a little photo op on the aircraft
11:08
Speaker 1: carrier Corey, this military action may not be done. God
11:12
Speaker 1: help us if there's a violent resistance like we saw
11:17
Speaker 1: in Iraq that led to more deaths in the initial invasion.
11:20
Speaker 1: But what legal standard determines if something's a war versus
11:24
Speaker 1: a limited police action. Is it boots on the ground,
11:26
Speaker 1: is it regime change? Is it occupation? Or is it
11:30
Speaker 1: theft of natural resources, which we have to talk about
11:32
Speaker 1: as well well.
11:34
Speaker 2: I put it not at the duration. I put it
11:36
Speaker 2: about whether or not it's an active defense, in which
11:39
Speaker 2: case the president might have the power to do it.
11:40
Speaker 2: But an active aggressive war is an unprovoked use of
11:43
Speaker 2: force against the foreign power that doesn't want it. Now again,
11:46
Speaker 2: and then we could keep going into the Panama case.
11:48
Speaker 2: They're arguably the United States was invited in by the
11:52
Speaker 2: lawful regime. So that's another difference here. That's definitely not
11:55
Speaker 2: the case. And you see the president saying and threatening
11:59
Speaker 2: the vice president of Venezuela and saying, you know, as
12:01
Speaker 2: bad as what happened to Medua, what will happen to
12:04
Speaker 2: her is worst? Exactly, really gives the lie to the
12:07
Speaker 2: idea that this is some sort of police action because
12:09
Speaker 2: she what's the indictment?
12:11
Speaker 1: That's it, that's it. But that's my that's my big
12:13
Speaker 1: question here. I mean, Trump openly stated we're going to
12:16
Speaker 1: run it and that we are going to extract their
12:18
Speaker 1: oil wealth. At what point does does does Trump's candor
12:23
Speaker 1: become a confession? I mean doesn't does it on a
12:25
Speaker 1: legal level? Doesn't him stating in front of cameras with
12:28
Speaker 1: with functioning microphones, stating his intent to occupy and take resources.
12:33
Speaker 1: Didn't he just destroy his administration's legal defense, even if
12:37
Speaker 1: the indictment isn't flimsy. I mean, he just said it.
12:42
Speaker 2: I think that's a great way to put it, that
12:44
Speaker 2: you know that he's telling us the truth in the
12:46
Speaker 2: midst of this subterfuge, this this lie that this is
12:49
Speaker 2: a police action, the idea that he wants to run Venezuela.
12:52
Speaker 2: Let's just get into that. I mean, what he's really
12:54
Speaker 2: doing is rediscovering this fun thing in his mind, fun thing,
12:57
Speaker 2: really horrible thing of American colonialism. That's it. But here's
13:02
Speaker 2: a crazy little detail. You know, even in the horrific
13:05
Speaker 2: history of American colonialism, for instance, in the Spanish American War,
13:09
Speaker 2: which led to the America taking several colonies, there was
13:14
Speaker 2: a debate in Congress, and there was a declaration of
13:17
Speaker 2: war and an authorization of the use of force. And
13:20
Speaker 2: so even in that misguided moment, America realized, you know,
13:24
Speaker 2: as bad as it was, that this can't be done
13:26
Speaker 2: unilaterally by a president getting involved in colonial running of
13:31
Speaker 2: other countries. You know, if war takes up domestic resources,
13:35
Speaker 2: that really starts to strain the resources of the United States,
13:40
Speaker 2: and he wants to do it unilatterally, So as bad,
13:42
Speaker 2: let me just make my point. As bad as colonialism was,
13:45
Speaker 2: and it was horrific, at least there they were better.
13:48
Speaker 2: It wasn't a dictatorial move, it was an active decision
13:52
Speaker 2: of Congress.
13:54
Speaker 1: So for Corey, would would you say then that the
13:56
Speaker 1: Trump doctrine appears to be that the US and Russia
14:00
Speaker 1: and China just carve up whatever weaker nations they want.
14:04
Speaker 1: I mean, that seems to be what the deal that's
14:06
Speaker 1: been cut means. And is there anything in American or
14:10
Speaker 1: international law that permits that sort of new world order?
14:15
Speaker 2: Well, the idea that America is going to have any
14:16
Speaker 2: standing now to criticize the invasion of Ukraine, or to
14:21
Speaker 2: criticize China as it threatens Taiwan, all of that starts
14:25
Speaker 2: to be a hard argument to make because it looks
14:28
Speaker 2: like the United States is involved in this manifest destiny
14:31
Speaker 2: or colonial quest to take over other nations, and the
14:34
Speaker 2: idea that there's you know, the disability. I mean, the
14:39
Speaker 2: Nuremberg trials were partly about crimes against humanity and the Holocaust,
14:44
Speaker 2: but they also were about aggressive war. And when Growing
14:48
Speaker 2: was put on trial, that was one of the things
14:50
Speaker 2: that one of the main things that he was accused of.
14:53
Speaker 2: That set a precedent, which is that nations can't just
14:56
Speaker 2: invade one another. It's a fundamental idea of international law.
15:00
Speaker 2: And really what Trump is doing is nothing less than
15:02
Speaker 2: undoing it. I mean, so do we have the domestic
15:04
Speaker 2: argument that we went through. He's usurping the power of Congress,
15:07
Speaker 2: and he's certainly undoing. It's in a national law, and
15:09
Speaker 2: now is it a doctrine? Is it a thought out thing? He's,
15:12
Speaker 2: you know, an impulsive person, not somebody who thinks theoretically.
15:16
Speaker 2: But he's certainly doing a huge amount of damage. He's
15:19
Speaker 2: the ball in the you know, and just the ball
15:22
Speaker 2: in the shop, destroying you know, all the remnants of law.
15:25
Speaker 1: Yeah, I mean, that's the terrifying thing. If other nations
15:28
Speaker 1: now adopt this logic, Like if the new paradigm is
15:31
Speaker 1: that Putin is Hitler and Trump is Mussolini. If China
15:36
Speaker 1: cites this as justification for seizing Taiwan, do we have
15:40
Speaker 1: any legal rebuttal left. I'm not that sure this administration
15:44
Speaker 1: would object at this point.
15:47
Speaker 2: It could be, you know, in their minds, a willingness
15:50
Speaker 2: to carve up the world among these three powers. But
15:54
Speaker 2: what's really unfortunate is, you know, it's fledgling international law.
15:59
Speaker 2: But at least those prints are there, and that when
16:02
Speaker 2: Putin invaded Ukraine, the world could say, you know, that's
16:05
Speaker 2: not allowed under our post World War two consensus. And
16:09
Speaker 2: if Trump is doing the exact same thing in this
16:12
Speaker 2: blatant way, not apologizing about it, it becomes much harder.
16:15
Speaker 2: We're back to this era of colonialism, and you know,
16:19
Speaker 2: as wild as that is to say that that's exactly
16:21
Speaker 2: what's going on.
16:22
Speaker 1: Before the break, let me ask you a one last
16:25
Speaker 1: pestering question on this, and then when we come back,
16:27
Speaker 1: I want to talk about what Congress must, can, or
16:30
Speaker 1: might do. But just so I understand, professor, is there
16:33
Speaker 1: any plausible constitutional argument that this action fits within the
16:38
Speaker 1: president's unilateral authority? I mean, are we still within any
16:42
Speaker 1: guardrails at this point? I know it's happened, but is
16:45
Speaker 1: there any real argument they could make or would their
16:49
Speaker 1: case just depend on a really sympathetic and obedient judge.
16:52
Speaker 2: Well, I mean, here's the problem, John, that that courts
16:54
Speaker 2: really have not been willing to enforce the war powers.
16:57
Speaker 2: They regard it as a political question. Is there's one
17:00
Speaker 2: kind of amazing moment in the Kuwait War where a
17:04
Speaker 2: federal district court judge temporarily put an injunction on military
17:09
Speaker 2: use of force. I think it lasted a few hours though,
17:12
Speaker 2: and a colleague of mine at the University of Pittsburgh
17:15
Speaker 2: Law School litigated that. But aside from that, you know,
17:18
Speaker 2: in a couple of Kate there were cases in Vietnam,
17:20
Speaker 2: where there was a litigation strategy to try to stop
17:23
Speaker 2: illegal bombing. But courts are just not willing to do it.
17:26
Speaker 2: So who has to act. It has to be Congress.
17:28
Speaker 2: And as we were saying before, as Congress refuses to act,
17:33
Speaker 2: it's essentially giving carte blanche, giving permission to the president
17:36
Speaker 2: to do that. When it comes to Maduro himself, you know,
17:40
Speaker 2: Noriega died in prison. I don't see there's any world
17:43
Speaker 2: in which Meduro is going to return to Venezuela. So
17:46
Speaker 2: the damage is done and the legal mechanisms to fix
17:49
Speaker 2: it are really few and far between. That's not to
17:52
Speaker 2: say nothing can be done. I mean one of the things.
17:54
Speaker 2: And maybe we'll get to this later in more depth.
17:56
Speaker 2: And I was talking to my friend John and Washington
18:00
Speaker 2: d C. A longtime friend who's the best man at
18:03
Speaker 2: my wedding, and you know, he really I was feeling
18:05
Speaker 2: despondently what can we do? And his point was so
18:08
Speaker 2: clear and compelling. He was saying, look, what we need
18:11
Speaker 2: to do is compel our members of Congress to act
18:14
Speaker 2: preemptively to stop any more of this, to condemn what happened,
18:18
Speaker 2: but also to stop an action in Cuba. An action
18:21
Speaker 2: in Greenland and when the when the Congress uses its
18:24
Speaker 2: war power, we're really talking about a passive failure of
18:27
Speaker 2: them to act and the president's ustirpation of that power.
18:31
Speaker 2: But if they were to actually speak up, that really
18:33
Speaker 2: is something the best.
18:34
Speaker 1: All right, well done, Hold that thought, because I want
18:37
Speaker 1: to talk to you about Congress, and hopefully we won't
18:39
Speaker 1: enrage our listeners too much because I heard, I heard.
18:43
Speaker 1: If there's a high enough civilian death toll, the Democratic
18:46
Speaker 1: leadership is willing to write a strongly worded memo. They're
18:49
Speaker 1: really going to do it this, I mean, I mean
18:51
Speaker 1: strongly worded, Corey. They will. They are, They're going to
18:54
Speaker 1: go full end this the international on this. They're going
18:56
Speaker 1: to be John like the John Brown of Chuck Schumer gesture.
19:00
Speaker 1: So quick break, we'll be back into I mean, Chuck
19:02
Speaker 1: Schumer's gonna tear the tassels off his lopers, that's how
19:05
Speaker 1: enraged he is. We'll be right back on the oath
19:07
Speaker 1: in the office. The John Peeple Saying podcast is now
19:12
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19:15
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19:45
Speaker 1: Welcome back to the Oath in the Office. I'm John Fugelsang,
19:47
Speaker 1: joined by Professor Corey Bretschneider. So, Corey, let's talk about
19:52
Speaker 1: what happens next with this Venezuelan invasion war occupation. I mean,
19:58
Speaker 1: the reality is, if you want to believe it's about drugs,
20:03
Speaker 1: you have to ignore that Trump just parton the former
20:05
Speaker 1: Hunter and President Condective importing hundreds of tons of cocaine.
20:09
Speaker 1: If you want to believe this is about democracy and
20:11
Speaker 1: the good people of Venezuela, you have to believe Trump
20:14
Speaker 1: gives a damn about democratic legitimacy. If you want to
20:17
Speaker 1: believe this is about the Christian folks under siege in
20:20
Speaker 1: a ninety five percent Christian country, you have to overlook
20:23
Speaker 1: the fact that Trump just broke six commandments and pretty
20:26
Speaker 1: much everything Jesus ever said. And to believe this was legal,
20:29
Speaker 1: you'd have to believe we still have a function in Congress. Corey.
20:33
Speaker 1: Trump did not ask Congress, he didn't tell Congress, he
20:36
Speaker 1: did not get an authorization. He just did a war
20:39
Speaker 1: and then announced that we're going to run Venezuela for
20:42
Speaker 1: a while and let very large American corporations exploit its oil.
20:47
Speaker 1: So this is Donald Trump becoming what we said this
20:50
Speaker 1: was going to be our hemispheres, putin kidnapping leaders, ignoring
20:54
Speaker 1: international law, ignoring borders when we feel like it, and
20:58
Speaker 1: using the military as are our assassins, as our getaway car,
21:02
Speaker 1: and as our personal distraction device. So a lot of
21:06
Speaker 1: arguing that obviously he's walked past the line of illegality.
21:09
Speaker 1: Congress has to do something you mentioned before. Only Congress
21:12
Speaker 1: can formally declare war. We haven't done that in eighty
21:15
Speaker 1: four years. So what are the immediate constitutional tools that
21:20
Speaker 1: are available to Congress right now? If they cared if
21:23
Speaker 1: this president exceeded his constitutional authority, as many experts believe
21:26
Speaker 1: he did. Congress isn't just allowed to respond, aren't they
21:30
Speaker 1: obligated to what can they do.
21:33
Speaker 2: I think that's exactly the right way to put it.
21:35
Speaker 2: And we were foreshadowing this before. But look, in the
21:38
Speaker 2: absence of courts doing anything to enforce the war power
21:42
Speaker 2: and to stop this illegal action, they're not going to
21:46
Speaker 2: do that. In fact, they might very well continue with
21:50
Speaker 2: the prosecution, allow for the prosecution of Mandora, and you might,
21:53
Speaker 2: like NORRIEO, spend the rest of his life in prison.
21:56
Speaker 2: So that's not the place to look. Sometimes it is,
21:58
Speaker 2: and we often talk about, is where the court might act.
22:01
Speaker 2: The tariff's case will be decided this Friday. I think
22:05
Speaker 2: so we might. We'll see, but we might have a
22:10
Speaker 2: limit on the president's power. It's not going to happen here.
22:12
Speaker 2: So there really is only one option that although Congress
22:16
Speaker 2: has the power to declare war the exclusive power and
22:19
Speaker 2: the president can't usurpent, the only way it's going to
22:21
Speaker 2: be protected is if they use it, and if they
22:24
Speaker 2: actually speak up and condemn this action as illegal, that
22:28
Speaker 2: would be one thing to do. And then looking to
22:29
Speaker 2: the future, prohibit explicitly future invasions of Cuba or of Greenland.
22:37
Speaker 2: As wild as that sounds, it looks like all these
22:40
Speaker 2: things might be on the table or Columbia. Uh, that
22:43
Speaker 2: would that that would have teeth. I think then it
22:45
Speaker 2: becomes a lot harder to argue that there's any complexity
22:49
Speaker 2: here that if Congress grow actively uses that war power,
22:54
Speaker 2: it can it can stop. Of course, there are other
22:56
Speaker 2: things that they can stop a president. There are other
22:58
Speaker 2: things that they can do, very practical things like refused
23:01
Speaker 2: now on any of these.
23:03
Speaker 1: That was my question. Can they I mean, obviously condemnation
23:07
Speaker 1: resolutions are really sexy and get a lot done, but
23:09
Speaker 1: can they actually pretend they control the purse rings?
23:13
Speaker 2: I mean?
23:13
Speaker 1: And can they have explicit prohibitions on future actions? I mean,
23:16
Speaker 1: I know, I don't even see these guys retroactively condemning
23:21
Speaker 1: this invasion. For the symbolic power. I mean, could this Congress,
23:26
Speaker 1: if enough Libertarians came on board, pass a simple majority
23:29
Speaker 1: resolution barring future military action against Venezuela, against Cuba, against Greenland?
23:36
Speaker 2: Could they do? That's exactly what I think needs to happen.
23:40
Speaker 2: And Thomas Massey and we no longer have Marjorie Taylor
23:44
Speaker 2: Green but that wing of the party bober who talked
23:46
Speaker 2: about America first, who talked about and might some of
23:50
Speaker 2: them be believers in this idea that we don't want
23:52
Speaker 2: endless wars. All of those things that they campaigned on
23:56
Speaker 2: that they define MAGA around, Obviously that's all thrown out
23:59
Speaker 2: the window. So we don't need a lot. We just
24:01
Speaker 2: need enough to get to a majority. It's a majority
24:03
Speaker 2: of both houses or required to revoke the war power.
24:09
Speaker 2: You know. One question, and I'm not sure about this,
24:12
Speaker 2: but i'll throw it out there is, Yes, courts have
24:14
Speaker 2: been reluctant to act, but this is a unique situation
24:16
Speaker 2: that we're talking about. If Congress were to revoke its
24:19
Speaker 2: war power and the President would, over the objection of Congress,
24:23
Speaker 2: use usurp that power and engage, that starts to be,
24:27
Speaker 2: you know, really a pushing the court with its political
24:30
Speaker 2: question doctrine, which is sort of a hands off idea
24:33
Speaker 2: that the two branches can work it out. That's not
24:35
Speaker 2: the two branches working it out. That's really the president
24:38
Speaker 2: usurping entirely the power of Congress. And then if the
24:41
Speaker 2: president were to ignore it, then the Congress would be
24:44
Speaker 2: well within its rights to refuse to allocate funds. And
24:48
Speaker 2: that is that is a real power. And so I
24:50
Speaker 2: think we should be talking about this. We should be
24:53
Speaker 2: you know, we're having we had Ted lu we had
24:57
Speaker 2: Senator Sheldon Whitehouse. As we bring on in this new year,
25:01
Speaker 2: members of Congress, we'll talk to them about this.
25:04
Speaker 1: Would that require sixty votes in the Senate or just
25:07
Speaker 1: you know, having spines.
25:08
Speaker 2: Just the majority of both houses. There's no supermajority requirement
25:13
Speaker 2: in the War powers.
25:14
Speaker 1: Do you think at this point there could be a
25:16
Speaker 1: realistic bipartisan pathier or do you think Corey and be honest,
25:21
Speaker 1: is fear of Donald Trump overriding constitutional duty? This is
25:26
Speaker 1: going to be the year we're going to see a
25:27
Speaker 1: lot of our Republican friends make the Marjorie Taylor Green
25:29
Speaker 1: choice and recognize that this guy's not going to help
25:31
Speaker 1: them keep their jobs in the midterm. They haven't all
25:33
Speaker 1: figured it out yet, but I mean, are they still
25:36
Speaker 1: terrified of him enough that piece is going to skape
25:39
Speaker 1: through this?
25:40
Speaker 2: Well? We saw in the Epstein files there were a
25:42
Speaker 2: lot of defections and there was a compulsion on the
25:45
Speaker 2: Department of Justice to release those files. This seems to
25:48
Speaker 2: me to be an equally fundamental of not more part
25:52
Speaker 2: of the identity of MAGA, at least those who really
25:56
Speaker 2: were believers in it. I mean, that's what you said
25:58
Speaker 2: was no endless wars. Up was asked about, how can
26:01
Speaker 2: you justify this after you claim no endless wars? And
26:04
Speaker 2: he had some It really is America for it first,
26:07
Speaker 2: because we want safety with our neighbors.
26:09
Speaker 1: Mission accomplished. It was a cakewalk. It was a cakewalk.
26:12
Speaker 1: We were greeted as liberators.
26:13
Speaker 2: They love.
26:13
Speaker 1: I mean, these idiots have no idea what the future
26:17
Speaker 1: is going to hold. And it's another example of the
26:19
Speaker 1: reality that Donald Trump is probably not going to be
26:22
Speaker 1: alive to have to deal with the after effects of
26:24
Speaker 1: the things he broke. But let me ask you the
26:27
Speaker 1: million dollar question on this one, professor, and this is
26:31
Speaker 1: what they're all talking about in all the chat rooms.
26:34
Speaker 1: Is there any serious constitutional argument against introducing articles of
26:40
Speaker 1: impeachment this week? I mean, if a president initiates an
26:45
Speaker 1: unconstitutional war based on lies, it seems like that is
26:49
Speaker 1: an impeachable offense, even if it's never been treated as
26:51
Speaker 1: one historically. But is the real argument only political? Is
26:55
Speaker 1: there any serious constitutional argument against introducing the arts right now?
27:01
Speaker 2: I think the problem is, you know, right now, as
27:05
Speaker 2: things stand, right now, President's got his argument, and people
27:09
Speaker 2: like me have our argument and there's a standoff about
27:12
Speaker 2: whether or not this supposed police action we know it
27:15
Speaker 2: wasn't was constitutional or not. So making the impeachment point
27:18
Speaker 2: is harder now. But that's why to go back to
27:20
Speaker 2: our theme, if we could get members of both houses
27:23
Speaker 2: to declare the opposite of declaring war, of to revoke
27:28
Speaker 2: the war power, then the president defying it, it obligates
27:33
Speaker 2: the Congress, I would say, to impeach because one of
27:37
Speaker 2: the main things that Congress is supposed to do has
27:39
Speaker 2: just been obliterated. And you know, I think that's already
27:42
Speaker 2: where we are, but it just becomes so much clearer.
27:45
Speaker 2: So certainly, if we're still in this world and Democrats
27:48
Speaker 2: take Congress doing both, and if the president were to
27:53
Speaker 2: defy Congress, you know, by engaging in any of these
27:56
Speaker 2: foreign wars without authorization, case for impeachment is so clear now,
28:00
Speaker 2: you know, get in line, right. There are so many
28:02
Speaker 2: things that we could impeach its resident for, so you know,
28:06
Speaker 2: but I'd put this up there.
28:08
Speaker 1: I mean, we've discussed it before. You know, I'm really
28:10
Speaker 1: on the side of impeachment. I love impeachment, but only
28:13
Speaker 1: for the articles, which is to say, I've talked about
28:17
Speaker 1: it before. On the show back during the.
28:19
Speaker 2: Obama peachment joke i've ever heard.
28:21
Speaker 1: Oh Lord, give me some time. Back during the Obamacare battles,
28:25
Speaker 1: we mocked the Republicans for introducing these you know, kill
28:28
Speaker 1: Obamacare bills every week when they didn't have the votes.
28:31
Speaker 1: We made fun of them, and all along what were
28:33
Speaker 1: they doing. They were clearly they knew all those bills
28:37
Speaker 1: were going to failure, but they were reasserting their messaging
28:41
Speaker 1: to their base right all the time. We hate the
28:43
Speaker 1: black guy's healthcare plan that makes your life easier, We
28:45
Speaker 1: hate it. They kept on getting the messaging out. They
28:48
Speaker 1: fund raised off of it incredibly, and those non stop
28:53
Speaker 1: Obamacare doomed to fail repeal votes wound up being a
28:57
Speaker 1: real mission statement that carried them through through the midterms.
29:01
Speaker 1: I have believed for a long time the Democrats were
29:04
Speaker 1: handed ten counts of obstruction by Robert Muller. They could
29:07
Speaker 1: have tacked those on to the first impeachment over the
29:09
Speaker 1: Zelenski cheating to win the election. I'd love to see
29:13
Speaker 1: them try to do it. I know they won't. I
29:15
Speaker 1: know they won't, but what message does it send to
29:18
Speaker 1: the rest of the world, the American people and to
29:21
Speaker 1: historians of the future. If this Congress does nothing, I mean,
29:25
Speaker 1: what message does it send about whether the Constitution still
29:29
Speaker 1: constrains power.
29:31
Speaker 2: Well, we've been I'll introduce it again. This theme really
29:34
Speaker 2: from the beginning of the self coup, the way in
29:36
Speaker 2: which and of course it's it's particularly apt because we're
29:41
Speaker 2: talking about a Venezuelan dictator that destroyed the other branches
29:44
Speaker 2: of government in Maduro, in Venezuela, and what Trump is
29:47
Speaker 2: doing is also destroying the other branches of government, usurping
29:51
Speaker 2: the powers of Congress, of the courts, and this defiance
29:54
Speaker 2: of court orders. And so you know, that's why this
29:56
Speaker 2: becomes so essential that Congress act here to reclaim it's
30:00
Speaker 2: war power, because if they don't do that, then they're
30:02
Speaker 2: in the same business that the Supreme Court has been
30:04
Speaker 2: acquiescing in the immunity case, and Congress has acquiesced in
30:09
Speaker 2: other areas as USAID and the powers of Congress to
30:15
Speaker 2: see its own legislation in force were destroyed by Elon Musk.
30:19
Speaker 2: It's happening again. And you know, the war power, if
30:22
Speaker 2: I had to pick one, you know, think about it, right,
30:24
Speaker 2: it's the power to invade, to attack a foreign nation.
30:28
Speaker 2: Is being usurped from the Congress. That really, if they
30:32
Speaker 2: failed to reclaim it, it looks like the self coup
30:35
Speaker 2: might succeed.
30:36
Speaker 1: All right, One last question about this, then, Corey, at
30:39
Speaker 1: what point will congressional inaction? At what point can we
30:44
Speaker 1: call it constitutional failure? I mean, I know it's too
30:46
Speaker 1: early in the game yet, but at what point do
30:49
Speaker 1: we say they've just stopped being checks and balances.
30:53
Speaker 2: Well, I think, you know, I'm not ready to call
30:57
Speaker 2: it yet. I think that as we were talking about,
30:59
Speaker 2: one of this strategies here has to be to try
31:02
Speaker 2: to call MAGA out and say, you know, this is
31:04
Speaker 2: one of the rare areas where the principles, if you
31:07
Speaker 2: want to call them, that of MAGA no foreign wars
31:10
Speaker 2: are really directly in conflict with everything this president is doing.
31:14
Speaker 2: And certainly the Democratic Party also doesn't want to see
31:16
Speaker 2: these wars illegal wars of aggression. So maybe we could
31:20
Speaker 2: start to see the cobbling together of this coalition that's
31:24
Speaker 2: not going to be stopping the self coup in court,
31:27
Speaker 2: but it is using Congress functioning as it should be,
31:30
Speaker 2: jealously guarding its own power. The possibility of impeachment remains,
31:34
Speaker 2: especially depending on what happens in the midterms. So no,
31:37
Speaker 2: I'm not counting us out. I think it's extremely precarious, dangerous.
31:41
Speaker 2: The president is really you know, not just destroying norms
31:45
Speaker 2: with destroying constitutional democracy, but the fight. We're still in
31:49
Speaker 2: the fight. I've been using the phrase, you know, I'd
31:51
Speaker 2: rather see us in a constitutional crisis than not one,
31:54
Speaker 2: because at least the crisis it implies conflict, and this
31:58
Speaker 2: is a crisis over the war powers. But the fact
32:00
Speaker 2: that there's a crisis, that there's a battle still going on,
32:03
Speaker 2: that's a good thing, not a bad thing. The other
32:05
Speaker 2: alternative at this point is to give up.
32:08
Speaker 1: And we'll talk for a long time about whether this
32:10
Speaker 1: was a distraction from Epstein files, from a terrible economy,
32:13
Speaker 1: from Supreme Court slapping him down about the National Guard,
32:17
Speaker 1: and from Jack Smith's devastating testimony released by the Republicans
32:22
Speaker 1: and the House Judiciary Committee on New Year's Eve. I
32:25
Speaker 1: want to talk about that because that would have been
32:28
Speaker 1: our lead story for this episode. If this had and happened,
32:30
Speaker 1: We'll be right back on the Open the Office.
32:35
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32:38
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32:41
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33:01
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33:10
Speaker 1: Welcome back to the Oath and the Office podcast, Corey.
33:14
Speaker 1: I've been so busy asking you about all of this
33:16
Speaker 1: constitutional malfeasans i haven't had a chance to congratulate you
33:19
Speaker 1: on having the number two podcast on Apple and the
33:22
Speaker 1: Government category. Well done, professor, Well do.
33:25
Speaker 2: Thanks and I'll throw that back to you John. Of course,
33:27
Speaker 2: this has been an amazing project the two of us.
33:29
Speaker 2: You use that phrase. You know, I'm just amok and
33:32
Speaker 2: I am going to ask the dumb question. But that's
33:34
Speaker 2: not what you're doing. You're making sure that the two
33:38
Speaker 2: of us are able to translate some of the most
33:40
Speaker 2: complicated issues in law for the American people, for the listeners,
33:44
Speaker 2: and I can't think of anything more important. I'm so
33:47
Speaker 2: glad to be doing this with you, and that's why
33:50
Speaker 2: we reach number two a new record. I love it
33:53
Speaker 2: that the listeners are into this. I'm into it as
33:55
Speaker 2: you know. We were three, was our record before in
33:57
Speaker 2: the government category. Now we're two. So the other thing
34:00
Speaker 2: is too we often, you know, shoot up when we
34:02
Speaker 2: have our amazing guests, like I mentioned Senator white House
34:05
Speaker 2: or Daliolithwick. If you haven't heard that, you could go back.
34:08
Speaker 2: But our record episode was just the two of us,
34:11
Speaker 2: So that means that listeners are liking this dynamic and
34:14
Speaker 2: what a thrill it is to do it.
34:16
Speaker 1: Well, thank you, and I'll remind you again that the
34:18
Speaker 1: self deprecation I do is just part of me being
34:20
Speaker 1: a charming sociopath.
34:22
Speaker 2: It's put on my coat.
34:24
Speaker 1: Let's talk about Jack Smith. Everyone's debating whether you know
34:27
Speaker 1: the Republicans screwed up by releasing this on New Year's Eve.
34:30
Speaker 1: They say they were trying to bury it so no
34:32
Speaker 1: one would see it. For me, New Year's Eve is
34:35
Speaker 1: when most of us are hanging out in the house
34:36
Speaker 1: all day till we go out at night. I got
34:38
Speaker 1: to watch the whole thing. I mean, if they wanted
34:40
Speaker 1: to bury it, they would have released it at midnight
34:42
Speaker 1: on Christmas Eve. But Jack Smith testified very clinically before
34:47
Speaker 1: the Judiciary Committee. What he said was quite powerful, and
34:50
Speaker 1: he testified that he fully expected he would secure convictions
34:55
Speaker 1: at the trial. So let's start with that one. As
34:57
Speaker 1: a constitutional law professor yourself, how significant is that statement
35:02
Speaker 1: that he knew he would secure convictions at trial.
35:04
Speaker 2: Well, the parts that I watched, Io was so impressed
35:08
Speaker 2: with him. You know, this is a serious prosecutor who
35:11
Speaker 2: was doing his job and was pursuing the rule of law,
35:15
Speaker 2: was enforcing the law against the head of in the
35:17
Speaker 2: January sixth case, So that really the person that was
35:21
Speaker 2: organizing this attempted, you know, violent coup on the Capitol
35:25
Speaker 2: for the really first time in American history that had
35:27
Speaker 2: gotten that far. There had been attempts to steal elections before,
35:30
Speaker 2: but not like that or in the document's case. And
35:33
Speaker 2: what you see in watching him is how careful he
35:37
Speaker 2: is in the face of really just an attempt to
35:40
Speaker 2: score political points by the House Judiciary Committee and its lawyers.
35:43
Speaker 2: And here he is just giving you the facts. And
35:46
Speaker 2: you know, I had hope after watching that, because you know,
35:49
Speaker 2: the facts matter, and when you listen to somebody who's
35:51
Speaker 2: as credible as Jack Smith, give these responses know the
35:54
Speaker 2: cases so well, this definitely backfired on the House Republicans.
35:59
Speaker 2: It didn't make it looked like a political prosecution. And
36:02
Speaker 2: then when they try to make their arguments like about
36:04
Speaker 2: free speech, he just decimated them. There is no free
36:07
Speaker 2: speech right to.
36:08
Speaker 1: Let me ask you about that. Yeah, because and again
36:10
Speaker 1: every witness he had was a Republican, and he made
36:14
Speaker 1: it very clear that Donald Trump's conduct went beyond his
36:17
Speaker 1: destructive lies. So can you explain the constitutional difference between
36:22
Speaker 1: protected speech and criminal fraud? Why is I get why
36:26
Speaker 1: lying is protected under the First Amendment? Why is fraud
36:29
Speaker 1: not protected by the First Amendment? And how does that
36:32
Speaker 1: principle apply to false electors?
36:35
Speaker 2: I mean, one of the kind of delving into the
36:38
Speaker 2: issue of free speech, one of the huge mistakes that
36:40
Speaker 2: you see so often and was used by the staffer
36:43
Speaker 2: of the House Republican Judiciary Committee as they were going
36:47
Speaker 2: after Jack Smith, is to think that somehow, just because
36:50
Speaker 2: somebody says something, that it's protected and what Jack Smith
36:54
Speaker 2: did so well, and I'll just on my own show
36:57
Speaker 2: why that can't be right. If you go up to
36:58
Speaker 2: somebody and say, hey, I'm going to come kill you tomorrow,
37:01
Speaker 2: you're using your speech, but that's obviously not protected. It's
37:03
Speaker 2: a true threat and it's criminalized. And that's true of
37:07
Speaker 2: all sorts of speech too, like fraud. And here's another
37:11
Speaker 2: thing that you can't do. You can't engage in a conspiracy,
37:14
Speaker 2: which yes, involves speech to destroy an election and to
37:19
Speaker 2: violently steal electoral votes. And you know that the this
37:25
Speaker 2: is today that we're recording this, actually it is January sixth,
37:28
Speaker 2: this is the anniversary. And it's worth saying what this
37:32
Speaker 2: scheme involved that Trump was invited for they refused. The
37:36
Speaker 2: plan was that they would get Mike Pence to refuse
37:39
Speaker 2: to certify electoral votes. They wouldn't reach the threshold that
37:42
Speaker 2: was necessary to win the election. That would throw it
37:45
Speaker 2: to the House of Representatives and the House would vote
37:48
Speaker 2: state by state, and Trump thought he had the votes
37:51
Speaker 2: each state. And that system gets one conspiracy. That conspiracy
37:55
Speaker 2: is not protected free speech, a coup is. And of course,
37:59
Speaker 2: the need to go back to our other story that
38:02
Speaker 2: we invaded a country because of a dictator who usurped
38:06
Speaker 2: democracy and refused to respect an election. That's exactly what
38:09
Speaker 2: Trump did on January sixth, and yet he invaded a
38:12
Speaker 2: foreign country. I imagine if somebody wanted to invade US,
38:14
Speaker 2: so that Trump would have to admit, you know, you know,
38:17
Speaker 2: if he would have succeeded, he would have had to
38:19
Speaker 2: admit that, yes, we could have been invaded and he
38:21
Speaker 2: could have been seized. I'm glad it didn't come to that.
38:24
Speaker 1: Well, if Russia invades and kidnaps Trump, I'm sure Trump
38:27
Speaker 1: will encourage maggot to support whatever Putin does. But you're right,
38:30
Speaker 1: we're taking this episode during the day of January sixth.
38:34
Speaker 1: Happy anniversary to all you terrorists who celebrate, because it
38:38
Speaker 1: was terrorism. According to the dictionary, it was terrorism that date.
38:43
Speaker 1: Jack Smith plainly stated Trump caused it. From a legal standpoint,
38:48
Speaker 1: what does causation mean here? I mean the summoning a
38:51
Speaker 1: mob and then getting the mangree based on lies while
38:55
Speaker 1: you're engaging in a criminal conspiracy and then refusing to
38:59
Speaker 1: stop the mob violence. Does it meet that standard?
39:02
Speaker 2: Well, I mean what he was indicted. They had all
39:05
Speaker 2: sorts of things that they could have indicted him for.
39:07
Speaker 2: One thing they didn't, by the way, which is relevant
39:09
Speaker 2: to free speech, is incitement. So at the elims, when
39:12
Speaker 2: Trump gives that speech and says, you know, we're going
39:14
Speaker 2: to go down to the Capitol. One thing that Jack
39:16
Speaker 2: Smith considered but didn't do, was to indict him for
39:19
Speaker 2: that speech. Now, why didn't he do it? Even though
39:22
Speaker 2: to my mind, incitement to imminent lawless action, incitement to
39:26
Speaker 2: violence is not protected speech anymore than threatening to kill
39:30
Speaker 2: somebody the day after tomorrow. He is my other example.
39:33
Speaker 2: He could have indicted him. I think he would have
39:35
Speaker 2: not been violating his free speech, but he wanted to
39:37
Speaker 2: stay so far away from the free speech issues that
39:40
Speaker 2: he decided not to do it. Now, why did he
39:42
Speaker 2: indict him on, you know, for essentially leading this attack
39:46
Speaker 2: on the Capitol. Because the way he put it when
39:49
Speaker 2: he was asked, well, why did you like Trump? Why
39:52
Speaker 2: not you know, other people but not Trump, is he
39:54
Speaker 2: said Trump wasn't incidental to all this. He was at
39:57
Speaker 2: the top of the conspiracy to steal the election. And
40:00
Speaker 2: so I thought that was another powerful moment here. And
40:03
Speaker 2: you know, he really was careful to avoid any of
40:06
Speaker 2: the free speech issues here.
40:08
Speaker 1: Jack Smith did testify that Donald Trump's tweet endangered the
40:12
Speaker 1: life of his own vice president. And I know, wow,
40:15
Speaker 1: it's so easy to forget about this stuff, But how
40:19
Speaker 1: extraordinary is that legally historically.
40:23
Speaker 2: I mean, just to remind people, I didn't have it
40:26
Speaker 2: on my Bengo card that Mike Pence was going to
40:28
Speaker 2: be the hero of January sixth. But you know, he
40:31
Speaker 2: refused to go along. He evidently consulted Dan Quayle, and yeah,
40:36
Speaker 2: it's worth actually getting into the deep nitty gritty here.
40:38
Speaker 2: I don't mind doing that. The twelfth Amendment to the Constitution.
40:43
Speaker 2: The John Eastman, who was a legal advisor, the former
40:46
Speaker 2: dean of Chapman Law School, told Trump that the vice
40:49
Speaker 2: president under the twelfth Amendment could essentially steal the election,
40:53
Speaker 2: that he could refuse to certify the votes because it
40:56
Speaker 2: refers to the ability of the vice president to open
40:59
Speaker 2: the votes in the twelfth Amendment. And you know, this
41:02
Speaker 2: is bullshit of the worst kind. And although there was
41:06
Speaker 2: such pressure on Pence, I mean, it's remarkable to think
41:09
Speaker 2: about it in retrospect, not just pressure from the president,
41:12
Speaker 2: but these scenes at the Capitol of hang Mike Pence
41:16
Speaker 2: and nooses, and yet he didn't do it. He consulted Quail,
41:20
Speaker 2: he consulted his lawyers, and he knew there is no
41:23
Speaker 2: power of the vice president to steal an election under
41:26
Speaker 2: the twelfth Amendment. Now, one good thing that came out
41:29
Speaker 2: of January sixth is we had an Electoral count Reformact
41:31
Speaker 2: that made that very clear that the role of the
41:34
Speaker 2: vice president is just ceremonial. But you know, he could
41:37
Speaker 2: have gone along with it, and there was so much pressure.
41:40
Speaker 2: So oddly, Mike Pence wound up being one of the
41:42
Speaker 2: heroes of January sixth.
41:45
Speaker 1: I guess the other hero of January sixth is John
41:47
Speaker 1: Roberts Vermaga. And let me ask you about the presidential
41:51
Speaker 1: immunity scheme, because Jack Smith was asked whether the Supreme
41:55
Speaker 1: Court's immunity ruling exonerated Trump and his answer was word no.
42:02
Speaker 1: I think that was my emotional high point of the
42:04
Speaker 1: entire process, Professor, But what does that tell us about
42:07
Speaker 1: the scope and the danger.
42:10
Speaker 2: Of that ruling. Well, you know my book The Presidents
42:15
Speaker 2: and the People, Five leaders who threatened Democracy and the
42:17
Speaker 2: citizens who fought to defend it, which ends talking about
42:20
Speaker 2: January sixth as an attack on democracy that we really
42:24
Speaker 2: are still facing. That came out the day after the
42:29
Speaker 2: immunity case, and it was kind of a frightening. I'd
42:34
Speaker 2: say coincidence were not coincidents frightening confluence of events because
42:41
Speaker 2: the immunity case, to me, if I had depict one
42:43
Speaker 2: thing that really enabled this attack on democracy, it's saying
42:47
Speaker 2: that the president of the United States, not only when
42:50
Speaker 2: they commit crimes, but when they commit the most dangerous
42:52
Speaker 2: kinds of crimes, the crimes against democracy, an attempt to
42:56
Speaker 2: stay in power, to do what Maduro did, to try
42:58
Speaker 2: to at least attempt to usurp an election, that they're
43:03
Speaker 2: going to get away with it. And the idea that
43:06
Speaker 2: not just a sitting president but a former president has
43:08
Speaker 2: immunity was pulled out of whole cloth. There was no
43:12
Speaker 2: real president. We had a civil case Fitzgerald that that
43:16
Speaker 2: was about Nixon, but it didn't have to do with
43:18
Speaker 2: criminal destruction of our democracy. And so yes, when when
43:22
Speaker 2: the idea that he's in any way exonerated by the
43:24
Speaker 2: immunity case, Absolutely not. The people who are also not
43:28
Speaker 2: exonerated are the Supreme Court, by Justice Roberts, who really,
43:33
Speaker 2: you know, enabled what we're seeing now, the usurpation of law.
43:37
Speaker 1: Do you think the Roberts Court protected the presidency or
43:40
Speaker 1: did they protect Donald Trump?
43:42
Speaker 2: They protected Donald Trump, and I think they in some
43:45
Speaker 2: ways destroyed the presidency. And the classic idea that you know,
43:49
Speaker 2: the idea of the Constitution is we have Article one,
43:52
Speaker 2: which creates Congress and talked about the war power. Article
43:55
Speaker 2: two creates the presidency and limits it Article three, and
43:59
Speaker 2: you know they're coequal branches. That's supposed to be the idea.
44:02
Speaker 2: What the immunity case does is it puts the president
44:05
Speaker 2: in the de facto situation that if they act illegally,
44:08
Speaker 2: even criminally, that they're going to get away with it. Well,
44:10
Speaker 2: what is the incentive. It's to destroy the other branches.
44:14
Speaker 2: The immunity case is an example I think of the
44:18
Speaker 2: way that we've lost our way when it comes to
44:20
Speaker 2: this in this country.
44:22
Speaker 1: I mean, if there's one thing these aristocrats on the
44:24
Speaker 1: Supreme Court have taught me, it's that aristocrats really miss
44:27
Speaker 1: having a king. How do you see this ruling shaping
44:31
Speaker 1: the behavior of future presidents, Professor Bret Schneider, especially let's
44:34
Speaker 1: say future presidents that were fascists, but not incompetent morons
44:39
Speaker 1: like Trump. I mean, imagine a fascists less clumsy than
44:43
Speaker 1: this guy with the immunity ruling.
44:45
Speaker 2: Well, I'll say, you know, in some ways, the presidency
44:49
Speaker 2: has become so much more dangerous than some monarchs anyway.
44:52
Speaker 2: And I've been watching, as you know, Victoria on Netflix.
44:55
Speaker 2: I recommend it to everyone. Watch it. Watch how she behaves.
44:59
Speaker 2: Watch how Queen Victoria is constrained by the constitutional system
45:03
Speaker 2: of Parliament, how you know, when it comes to an
45:06
Speaker 2: assassin on her life, how she defers to the courts.
45:10
Speaker 2: You know, as crazy as this might sound, the American
45:13
Speaker 2: presidency has become more dangerous than the British monarch, which
45:16
Speaker 2: is constrained by tradition and by law. And you know,
45:19
Speaker 2: that's what this community decision does, among others. It's not
45:22
Speaker 2: the only one. It's also the destruction of Humphrey's executor.
45:25
Speaker 2: We'll see how the terroriff's case goes, but over and over,
45:28
Speaker 2: the refusal to intervene in these war powers cases and
45:31
Speaker 2: kind of pulling it all together, what it all amounts
45:33
Speaker 2: to is the creation of an office that is more
45:36
Speaker 2: dangerous than a monarch.
45:38
Speaker 1: Yeah, I'll say I mean and kudos to Jack Smith.
45:41
Speaker 1: He said he had his eyes wide open that Trump
45:44
Speaker 1: will seek retribution against him, which I think reveals a
45:47
Speaker 1: lot about the nature of the threat we're all facing,
45:50
Speaker 1: because we all know that Donald Trump will try to
45:53
Speaker 1: hurt this man for telling the truth. We all know
45:55
Speaker 1: that Donald Trump freed the terrorists who committed violence against
46:00
Speaker 1: police officers, and that his DOJ is persecuting the law
46:04
Speaker 1: enforcement officers who track down the criminals. I mean, is
46:09
Speaker 1: this how constitutional democracies fall apart? Normalizing I mean lawlessness, like,
46:15
Speaker 1: rather than a sudden coup, just normalizing the shitty lawlessness.
46:18
Speaker 1: That seems much more a feasible way to make your
46:21
Speaker 1: democracy disappear.
46:22
Speaker 2: I mean, you know the January sixth and the attempted coup,
46:26
Speaker 2: which is what that was. Violent coup is a threat
46:29
Speaker 2: to democracy. But right up there too is the desire
46:32
Speaker 2: to shut down the opposition. And we've seen Trump, despite
46:36
Speaker 2: Susie Wiles saying that she was going to limit him
46:38
Speaker 2: just to a few days, dig into this, To seek
46:40
Speaker 2: the prosecution of James, to seek the prosecution of Cami.
46:44
Speaker 2: Those are all attempts to shut down opponents and to
46:47
Speaker 2: also deter other opponents from challenging him. And when you
46:51
Speaker 2: hear Jack Smith say yes, he believes he will be targeted,
46:55
Speaker 2: you know that's nothing less than the attempt to destroy
46:58
Speaker 2: the rule of law. Because what Jack Smith made so
47:00
Speaker 2: clear is that all he was doing, was enforcing the law,
47:03
Speaker 2: doing his job. And you know, there are constitutional heroes
47:07
Speaker 2: along the way. We've talked about many of them, and
47:09
Speaker 2: watching that testimony, Jack Smith is certainly one of them.
47:12
Speaker 2: He didn't he was blocked by the Supreme Court and
47:14
Speaker 2: the immunity decision which essentially stopped that prosecution. But you know,
47:19
Speaker 2: he still continues to tell the truth. And so it
47:21
Speaker 2: was an amazing performance. It wasn't an act of politics.
47:24
Speaker 2: It was an act of integrity, and I'm grateful for him.
47:28
Speaker 2: All right.
47:28
Speaker 1: So, I mean, if Congress doesn't do anything now on
47:32
Speaker 1: war powers, on accountability, on impeachment, I mean, what precedents
47:36
Speaker 1: are they setting for the next crisis? Like I mean,
47:40
Speaker 1: I think the American people at this point just want aside.
47:42
Speaker 1: They know they can root for.
47:44
Speaker 2: Yeah. I mean, if you go back to that Panama example,
47:46
Speaker 2: and you know, as you put it so well, the
47:49
Speaker 2: Panama example was not I don't think it was lawful,
47:53
Speaker 2: but you know the fact that it happened, it becomes
47:56
Speaker 2: a precedent, and then on an unlawful precedent, we start
47:59
Speaker 2: to build more our illegal actions. Well, if Trump gets
48:02
Speaker 2: away with this, the war power is in the idea
48:05
Speaker 2: that Congress is initiating war not the president looks like
48:08
Speaker 2: it's just being eroded. And more and more I think
48:11
Speaker 2: we see a risk now, you know that that's incredible
48:14
Speaker 2: to say. I didn't even think I'd be saying anything
48:17
Speaker 2: like this a month ago. But if Congress doesn't have
48:19
Speaker 2: any power to stop a president in foreign interventions, there
48:23
Speaker 2: really is a sense in which the self coup has succeeded.
48:26
Speaker 2: And that's why it's so imperative that we hold our
48:28
Speaker 2: members of Congress not just to say something, not just resolutions,
48:33
Speaker 2: not letters you know, to the to the president or petitions,
48:37
Speaker 2: but really invoking the war power to say no, you
48:40
Speaker 2: can't use this.
48:42
Speaker 1: Yeah on that, sure you note, We'll see if that happens,
48:45
Speaker 1: Professor Bretschneider. What's the best way for our listeners to
48:48
Speaker 1: follow you and to keep up with your brilliance the
48:50
Speaker 1: rest of the week. Didn't it seem like we were
48:52
Speaker 1: all optimistic last Friday with Zoe Run Mom Donnie Zo
48:55
Speaker 1: Run Mom. Donnie was sworn in and it was all
48:58
Speaker 1: beautiful and Jack Smith obliterated up at this testimony. And now, boy,
49:01
Speaker 1: we're just we're we're they're just bombing they're just bombing out.
49:05
Speaker 2: You know, it's a it's a lot of up and down.
49:07
Speaker 2: One thing I'm hearing from listeners is that, uh, you
49:11
Speaker 2: know that we're going through a crisis. We're going through
49:14
Speaker 2: demoralizing to see to read the news every day. Some
49:17
Speaker 2: people want to check out, But what I think they
49:19
Speaker 2: get out of this podcast is a kind of solidarity
49:22
Speaker 2: that we're going through it together. We're not lying. We're
49:24
Speaker 2: telling the truth about how frightening things are, how dangerous,
49:28
Speaker 2: but we're also providing hope where we can. And you know,
49:31
Speaker 2: in the end, the main theme I think of the
49:33
Speaker 2: podcast is even if each of the branches of government
49:35
Speaker 2: abandons the constitution, abandons the rule of law, it's up
49:38
Speaker 2: to citizens to reclaim it. And that's what we're trying
49:41
Speaker 2: to you know, be part of here. And so I've
49:44
Speaker 2: still got hope as as as as demoralizing as this
49:47
Speaker 2: week is. And you know, so what people can do
49:51
Speaker 2: to follow us is to read our substack. We have
49:53
Speaker 2: a newsletter, the Oath in the Office Newsletter. They can
49:55
Speaker 2: subscribe on Spotify or Apple or wherever you get your podcast,
50:00
Speaker 2: leave a review on whatever your favorite podcast app is.
50:03
Speaker 2: You can check out our YouTube channel if you want
50:05
Speaker 2: to watch us and not just listen to us and John, really,
50:08
Speaker 2: what a pleasure it is to do this. It's the
50:10
Speaker 2: topics are just maddening, but yet I enjoy it and
50:14
Speaker 2: the laughter is great, and oh we need it.
50:18
Speaker 1: The last generous of you to call it that well.
50:20
Speaker 1: I host the evening programming on Serious XM Progress Channel one,
50:23
Speaker 1: twenty seven, five nights a week. You can also if
50:25
Speaker 1: you don't have Serious XM, here the John People Saying
50:28
Speaker 1: podcast every morning. Corey Bretschneider is a regular every Monday night.
50:31
Speaker 1: I have a substack and my book is called Separation
50:34
Speaker 1: of Church and Hate, and I just want to remind
50:37
Speaker 1: everybody don't panic. The Constitution is still there on paper,
50:41
Speaker 1: even if enforcement is now optional. Corey, thank you so much.
50:46
Speaker 1: I want to thank Bey Wolf and Wendy and everyone
50:48
Speaker 1: who puts the show together. It's always a pleasure. I
50:50
Speaker 1: always feel less terrorized every time I talk to you, Professor,
50:54
Speaker 1: And we will see all y'all next week on the
50:57
Speaker 1: Oath and the Office