Well Whiskey coma why don't from power Line blog dot com and produced by Ricochet
dot Com. This is the Three Whiskey Happy Hour with your bartenders Steve Hayward,
John You and power Lines International Woman of Mystery Lucretia gotta giving. Let
that whiskey flow where you're being in love down in Loon. Well, Hi,
everybody, it's the three Whiskey Happy Hour, coming to you a day
earlier than usual because, oh my goodness, a lot is going on.
There is the uh continuing Crystal dooct on campus going on. That'll be our
second subject. Our first subject, though, is Thursday morning, and we're
recording here Thursday night for a Friday posting was the extended argument at the Supreme
Court on whether former President Donald Trump has a broad claim of immunity for his
access president. And we'll get into the details of this, but first of
all, Hi, John, Hi Lucretia. How are you guys doing this
week? Great? How are you? Steve? Well? I am good,
although John, I have to say I'm a little chagrined. I don't
tell you about this, Lucretia, did you hear the new I think the
biggest story of the week is none of this stuff. It's that Robert F.
Kennedy Junior has qualified for the Michigan ballot in November, running on the
ballot line of the Natural Law Party. There's such a thing a Natural Law
Party, there is. I have heard of them before. You what's not
just you and the Cretia sitting in a room talking to each other. Well,
that's aways been my job. The Natural Law Party you ought to be
a ticket of, you know, Hadley Arcis and Marianne Glendon or maybe even
Jenie Rogers Brown. I don't know, they've been around for a while.
Actually, this is not a you know, I guess they've one of those
grandfather ballot lines in Michigan. They decided what it's all about? The nutters
really, and so it's kind of appropriate. It's too bad. I'm kind
of grumpy that someone has taking this scrap, but I figure it's a point
to you to talk to us with John, that's my yeah. I mean,
do you guys like run around the backyard trying to find apples and turn
it into your property? Like what goes on back there? Whoa John?
You know perfectly well? What goes on there? Remember on the backyard fence
is a sign that says, if you can read this, you're in range.
So you can think about what for yourself, what we do in the
backyard at the Deno compound, by the way, compound compound. Yes,
so sometime, John, we're gonna have to have a big throat down on
this, because of course what you just stated was lockey in modern natural law,
which has its merits. But Lucretia and I are devotees of classical natural
law, and you know you like Bentham. You've actually said this to us,
right, Oh I am I'll just mention this now in passing. I
am boning up to have the throw down with you on that. I've been
reading this book that's ninety years old. That's it's it's one of the classics.
It's it's the growth of philosophic radicalism. Ellie Hallavy, French author.
It's a really great book. Trivia point, John, did you know that
Bentham had been a student in the eighteenth century of Blackstone? It makes total
sense. Well, yes, he rebelled against him, right exactly. No,
But anyway, this is a terrific book. I have to say,
I've not read it before, but we're okay. We'll put that off for
some other time, and Lucretia will find my reading ninety year old books by
some French author ridiculous, but maybe not. I don't know, Lucretia.
Are you tired? I don't care about Jerry me Bentham or some stupid French
guy. Couldn't care less tonight, I'll be honest with you. I actually
listened a little bit on the way back today because I always change at the
moment Hannity comes on, because I can't stand Hannity. But I got a
phone call and then then I came off and Mark's Mark Levin was on Hannity,
yelling as he always is, of course, you know, yelling about
the about Trump and the trial today and that the Supreme Court should and I
don't want to get ahead by just the whole idea that the Supreme Court should
grow a pair. And I won't even say, I'll wait till we get
to John's analysis of everything that happened today. But they needed to grow a
pair and do the right thing. And I'll tell you what the right thing
is later. But that was interesting. Well, I'm not interested in Bentham.
Did Mark Levin plug that I'm going to be on a show this Sunday.
No, and I only listened for like a minute and a half.
I'm sorry, John, if I'd have known that, and I might actually
watch it or listen to it, I guess since you're going to be on
it, does he yell at you? No, we both yell at the
same target, I think. So my point about the immunity case before we
talk about the oral arguments today, is that we shouldn't forget and the court
is a little bit of a distraction to this. We shouldn't forget. The
real bad actor here is not one justice or the other justice. It's Joe
Biden. The reason we're going through all this is because the Biden administration is
prosecuting a former president. That's, you know, the really that's the really
significant change, not the fact that the court might rule one way or the
other. The court only has to rule an immunity because we're prosecuting a president
for the first time, a former president for the first time. So that's
what I said on So that's what I said on the Liven shows. So
we got to make sure we keep the bigger picture and focus and not try
to It's almost as if the Biden administration is winning. When we start focusing
so much on the court, we forget what triggered the whole thing in the
first place. And just so you know, Levin's point was, but that
the court, the court ought to be recognizing that that that this nonsense about
what's official and unofficial duties and all of this, uh what did he call
it? They're not Solomon, They shouldn't be making those kinds of decisions.
They shouldn't even make which is actually, if I recall what you said too
a while back, but but they ought to realize that this is lawfair and
not just law fair, you know, sort of uh kind of DA's after
some political opponents at some in some county level or something. But this is
a the president of the United States using the entire legal apparat prosecutorial apparatus of
the federal government against his political opponent. And that is, you know,
that's earthshakingly awful. I don't know how else to say it. I mean,
and I don't I know that that's not the question before the court,
but couldn't it be at the back of their mind here? Oh well,
well, let's turn to it directly and see, John, I think you
are dodging the main point. What you're happy to get to. I know,
because you know you said in text messages to us that you think Trump
will or should I'm not sure if you say will or should lose a broad
immunity claim. What the creature just raised that capable lot in the oral argument
today, which I listened to this morning and found it absolutely riveting, and
Steve really quickly. The one really thing that stuck with me from the oral
arguments I was able to hear is I was reminded again that Sonya Sotomayor is
the dumbest woman on the court. Well, yes, okay, that sod
a whole argument. Yeah, well let's see. So I think, well,
first of all, John, let's do it this way. I haven't
got this organized in the particular order. But one of things that came up,
and especially from Justice Gorsach, who I thought was spectacular today, in
the argument, he said, look, I don't want to focus strictly on
the circumstances of the particular case in front of us, because we are going
to be writing a precedent for the ages. He kept coming back to that
point because of course, the liberal justices and the draven I think Dreven was
the lawyer. I kept thinking of Frank Drevin from the Naked Gun movies.
But he kept coming back to you know, Trump and what you know,
what what precipitated this case? And I mean that's fine, except that you
know the oh, the fact that they kept referring to the Marbury case and
what was argued at the Constitutional Convention. We're getting down some fundamentals here.
But the point is is that they said, look, so that I want
to first of all, start at the abstract level. Uh, And I
think I we I think Lucretian I may have a different view from you.
And the irony here is my view is informed partly by one of your teachers
who apparently didn't learn enough from which is Harvey mans. Oh. Oh,
the insults a fly already they do. But here's the point is that I
think, you know, I've been conflicted about this, but I think I'm
increasingly of the view that Trump deserves to win this case. My read after
listening to the oral arguments is that Trump did really well, shockingly well,
and that the entire debate was on his terms. So you could say,
there's text and history, Well, let's look at the constitutional text, let's
look at the history of the founding. Most of the oral argument was about
good policy, right, what would be the incentives on the president future presidents
if you could prosecute them? What would be the results if presidents could actually
you know, like this was Kagan's hypothetical, what if they could undertake a
coup? Right? And you had to say they're immune from criminal prosecution for
you know, launching a coup. So when you start and I think I
said last time, if the argument was about is about what would be the
best public policy, I think Trump should win that it really would be good
if the Constitution prevented presidents from prosecuting their predecessors or prosecuting their main competitors in
the oncoming election. But you know, my point was good policy is not
really how this court in the past and the recent past. I said,
you should interpret the Constitution. They've tried to say, we only look at
the text in history and we put aside questions of good policy. So I
think the fact that the whole or argument was really about what makes sense in
terms of designing and respecting and effective executive power. Actually, I mean,
like I think that's like that seats to Trump half the battle. So let
me ask you a real quick question, John, And notice what I said
to you in the chat. We'll come back to that. The so I
heard arguments, and I do think it was from so my oar, but
that there's no I'm told that even Clarence Thomas brought this up, that there's
no mention of immunity for the president in the same way that there's a mention
for of immunity for Congress, et cetera, et cetera. But that to
me is totally beside the point. There's impeachment. There's impeachment in the constitution.
Right, Well, I came up a lot. Yeah, okay,
I told you I wasn't able to listen to the whole thing. I just,
of course I hear the highlights that whatever you know news show wants to
to to highlight. But it seems to me that that that argument should be
deposit dispositive and that no, we don't have criminal of course, the president
has immunity from criminal prosecution because if he commits crimes. We know now that
you can actually even impeach a president after he's left office, right, thanks
to our stupid Democrat and Cheney and those people. So why on earth was
it even an issue about official versus unofficial acts being criminal not criminal? Cake
just a point on that, because it's actually more abstract, not astrict.
But I think it's more political why that came up, because if there's I
think this is because I think this is concocted by Chief Justice Roberts and Brett
Kavanaugh. They're the ones who were raising it, uh, you know,
several times. And so suppose you're you're them. You want to keep the
court out of making a decision that anyone would say, oh, the court
decided the election by knocking Trump out. Yeah, but you don't really want
to say Trump gets full immunity either, And why not because they don't want
to be seen as helping Trump that much, Like that would be seen as
such a pro Trump, Like I'm just explained the way they think. I'm
it's very hard for Lucretia to understand. Wants to explain to her the way
moderates think, and like smoke start coming out of her ears. It was
like, you know, like her eyes came out like the way they do,
like when Tom and Jerry and Jerry gets hit by like the anvil,
you know, So this is this is how they think. So how could
you do that? So the way you would want to do it was it
would be you'd want to delay the case so that it couldn't the trial couldn't
start and finish before the election, because if Trump wins, then he can
order this prosecution ended as the head law enforcement officers. So I was listening
to this, I thought this was quite clever. I think we might have
talked about it a little bit last time. I'm not sure. But the
way you could do it is you could say if Trump has immunity or he
doesn't have immunity, We don't. No one thinks the immunity will extend to
private acts. If there's immunity, it would only cover official acts. So
before we decide whether immunity exists, let's see if any of these acts were
public. We're official, So we're going to send it back down to the
lower courts and they have to figure out whether anything in the indictment about January
sixth involves official acts versus private acts. Because if they're all private acts,
then we don't have to make a decision on immunity at all. This will
take so long when it goes back down to the lower court, that they
will achieve their objective of delaying the trial pass the election. So in a
way, Trump will win based on the oral argament, I think Trump's going
to win his tactical objective, which is to have no conviction before November.
Okay, So no matter what happens, I get all that, and I
get that your politics pure politics, not yeah, the worst kind where you're
pretending to be above it all. You're pretending to be above it all,
and you care more about the reputation of the court again than you do about
the constitution or the country in this case. Because so the one other argument
I bring to the table is that while this is going on, while the
silly trial in New York with Alvin Bragg and Trump, you know, Trump
yond in court today, Trump's dot in front of him. You know all
of that stupid stuff, What are we talking about. We're not talking about
the fact that we have a cognitive, cognitively impaired president who becomes more and
more cognitively impaired every day, or on the brink of World War three,
We've got wars going on all over the world, and the person the president
that you wouldn't allow to check you out. Check you wouldn't allow him to
be a checkout person at circle K is the only thing he's really seems to
be qualified for us to be president of the United States, Right, And
so what the media doesn't want to talk about, which I don't think that
they could avoid if they didn't have the Trump news day after day, is
what's really happening with the Biden administration. And so what are we talking about?
We're talking about this nonsense. I mean, I don't know that it
ultimately doesn't in some ways end up being a positive thing for Trump to a
great degree. We know that the more and the more people hear about uh
this law fair against Trump, the more he gets people on his side.
We hear that all the time, and it's especially true of young black men,
young Hispanic men, other people who feel imposed upon by the man.
Shall we say, but I don't know it's still wrong? Uh yeah,
all right, let's get let's okay. I want to check with the merits
of the case though in the particular issue, because I think John's still dodging
and bobbing. Okay, you have a good answer straightforward on the merits.
Why I think this is I think that on the text and original understanding,
it's hard to find immunity. I think the immunity that we have that we
talked about earlier, the one for civil cases from civil cases, which is
from a case evolving Nixon Nixon versus Fitzgerald. If you read it, it
doesn't do it doesn't ask any of these questions we've just been talking about impeachment.
The speech and debate lause, it's purely what we call functional. It's
just the court saying we think this is a good idea because it would help
the executive function better. There's very little public interests served by allowing these lawsuits,
and there's a lot of harm to the executive branch. Trump's briefs are
basically take that logic and just apply it to criminal cases too. Don't pay
attention to the textan history too much. And that's really the grounds on which
the court argue. But I think that text and history actually leans strongly against
there being presidential immunity. Not the point about the debate speech and debate clause,
which is immunity for congressmen, implying there isn't one for the president.
It's because of the impeachment clause, because the impeachment clause, right, it
says he can be a peach for high crimes and misdemeanor, treason, bribery,
other high crimes and misdemeanors, and then it says and you know you're
subject to indictment and jury after Now Trump's reading of that text is you could
only be tried if you're removed from office because you're convicted of impeachment. I
think that's a misreading because and there you have to look at the history because
in the history the founders, particularly in the Federal's papers, what they were
stressing was that impeachment was not criminal. Impeachment is just removal from office.
In England, impeachment was criminal. You could be executed if you were impeached
and if you were successfully impeached. So Hamilton other people saying, what this
clause means and what impeachment is is just removal from office. It is not
at all criminal. And in fact they were saying, if you're removed from
office, that doesn't have any double jeopardy, that doesn't have any estopable effects,
it doesn't have any effect on the criminal trial. The criminal trial is
different and independent that right says basically that you can criminally prosecute former executive branch
officials. I think it's okay, it's a stretch, just as for a
moment, it's a stretch to say that impeachment is not criminal. I get
exactly what you're saying. That it is a political judgment, absolutely no doubt
about it. But it's impeachment for what's what's the standard? High crimes and
misdemeanors? Right, high crimes and misdemeanors, which is criminal? Though,
how is a high crime or a misdemeanor not necessarily criminal? Well, I
will, you're talking about it, I'm talking about I'm talking about Madison from
Federals fifty five, where he says the purpose of impeachment is an inquest into
the conduct of public men. He makes it pretty clear there. I think
that this is a political matter. It can be criminal, of course,
but I mean some of the look, a lot of the charges against Andrew
Johnson in eighteen sixty eight were not criminal. They were political and rightly so,
even though well, okay, look John, I mean I think I'll
come to the deeper reasons why. But let's work with a couple of parts
along the way here, I thought the two stars of the whole argument today
for two and a half hours were Alito and Gorsuch, especially Alito. Uh.
Alito said, look what happens, Uh, well, we're worried about
and Gorsuch said this too, We're worried about opening the door to people prosecuting
presidents after they left office, as Trump has said. And Alito said,
look, we've had examples in past history of corrupt justice departments, and he
mentioned Hallmer, under Woodrow Wilson and a couple of other examples. He says,
this has really happened, so this is a real problem. He was
clearly implying the current Justice department. He didn't want to say that, but
that was clearly the point that brings bought in mind. But then the other
thing he raised, and a few minutes ago you said, well, the
argument is is you know what's good policy? That's low and economics speaking,
John, that's been them, by the way, but never mind, and
Alito raised the question, well, what about Franklin Roosevelt? Could he have
been prosecuted after he left office for the Japanese Internment for violating people's civil rights?
And the lawyer said, oh, well, you know, he had
legal advice, and then Alito cut him off. This was amazing to me
because wait a minute, that's not true what you just said. Attorney General
Biddle and Herbert Hoover. Most people don't know this. Biddle, the Attorney
General and Herbert Hoover both opposed Japanese internment and told Roosevelt they shouldn't do it.
I'm not sure what the legal arguments were. Almost nobody knows this.
By the way, somebody, either Alito or probably a clerk, really did
their homework on this, and it really caught the Justice Department lawyer by surprise.
And I thought that was a slam dunk for Alito. Steve Yea.
Steve noticed all these points have nothing to do with what did the original mean
to those who are like I said, policies maybe not the right word.
Maybe it's you know, what would be the best constitutional mechanism if we're writing
the constitution Now, I'm totally convinced and Aldo, you're right, it's quite
right to say if past presence can be convicted, I mean prosecuted, you
don't even have to go back as far as FDR. I mean, you
could say Obama right, like Obama? What about Biden? You know Obama?
Right? Yeah, I mean like somebody asked about Obama strikes, right,
what about Biden and all the right bribery? I mean you w trees
and bribe, high crimes and miseries. What about influence peddling? So I
totally agree and I but my point only is that they're not talking about what
did the founders think. They're talking about how it makes good sense now,
and I agree with them, But that's not in the text. There's lots
of things that text doesn't do that we would maybe an improvement on what we
have now. Well, of course, you know one of the arguments today,
I forget which justice made it was. Look, the community is clearly
implied and the vesting clause, you know, the executive power, right?
I mean my word here, John is I know you are working on a
book on Hamilton, the great champion of executive power, as are you,
And I'm afraid you're gonna blow it though the one you're talking why why,
well, no, why I'm not. Actually I think I think Hamilton is
the most brilliant expositor of the executive power, if not in our history,
at least in America maybe the you know world. But I'm not going to
make the claim that his views represented the founders because his views on the executive
power, which I agree with, we're kind of rejected at the Constitutional Convention
and such. Well, well, okay, which part of his views were
accepted, which ones weren't. But Hamilton doesn't claim that the presidents have criminal
immunity. He's the one in the other federal's paper about about impeachment. He's
the one who says impeachment is an offense against the body of public. It's
not a crime. It's similar to your description of medicine. But he's the
one who says it's separate and different than a criminal prosecution. And it's they're
they're rejecting the British idea and the British practice and the American constitution. And
so that's why criminal law and criminal prosecution comes after someone leaves off. Well
ah, okay, well, so first of all, uh, I think
it was cake. And one of the three liberal women said, isn't the
whole point of our constitution was to get away from the absolute power of a
you know, the king or a British monarch. Yes, And that's and
that's harm Mansfield's extended argument, right, I agree, yeah, yeah,
so, and that this is the whole problem is uh, Look, John,
the the of course we have to remember that for Hamilton or even the
people who are skeptical about the office of the president, they didn't understand,
they didn't think that, you know, only the most eminent people would have
the office. Here's the problem, I mean, the whole, the whole
problem of having any level of court to try to distinguish between an official act
and a private act. Trump on January sixth and throughout the post election procedure
has an entirely solid argument to say. Oh and by the way, several
justices said, look, we can't define what his motives were. The subtext
there is, how can we tell if he's actually trying to corruptly undermine election
that he lost, or trying to defend the Constitution from a corrupt election.
Excuse me? No court can decide that reasonably and shouldn't be allowed to decide
that. My point is, I think Lucretion wants to jump in here.
I see her agitation as you, because I think if you go ahead and
actually studied this, John, I'm disappointed in you. Judges in cases of
impeach. You know what else is new? John, I wrote a whole
article defending Trump from impeachment. Okay, but this is what in the article
two section of Under the Senate Judges in which is the one I believe you're
referring to, Judges in cases of impeachment shall not extend judgment. Excuse me,
in cases of impeachment shall not extend further than to removal from office and
disqualification to hold and enjoy any office of honor, trust, or profit under
the United States. But the party convicted shall nevertheless be liable and subject to
indictment, trial, judgment, and punishment according to law. It doesn't say
that if you didn't manage to convict to impeaching convictim, you can still try
him for a criminal case. How is that not? Also that's Trump,
that's Trump's reading, and he thinks that, how do you read it?
He thinks the only people who can be prosecuted are those who have been impeached
and removed. And I don't think it means that. I don't think it
means that. I think what it's saying there, and that's why you have
to read it against the explanation of the Federal's papers is that what it's saying
is that the criminal process is just separate and subsequent to whatever happens in impeachment.
That's I mean, that's what Hamilton says in the Federals paper, except
it says you have to be convicted. It says, but the party convicted
shall nevertheless be liable. So you could read it as a rejection of the
idea that there's double jeopardy. So there's some people who think what this clause
means is you can't be tried the second time because you were criminally tried the
first time, and you can't be tried twice for the same crime. I
think that actually this clauses a rejection of that argument, which would be true
if we had adopted the British system, because impeachment was criminal. So if
you were impeached, you couldn't be tried again, even if you were convicted,
because it would be barred by double jeopardy. That's the alternate reading.
But if we go with Marshall's. Marshal's way, he tells us to read
the sorry I already lost it. Now, to read the Constitution, which
is to assume that no words are superfluous, right, That's what Marshall tells
us. It could have said, you shall you know, impeachment shall not
extend further, etcetera, etcetera. But the party shall nevertheless be liable and
subject to indictment. That's what it could have said, and it didn't.
It said, but the party convicted shall nevertheless be liable and subject to indictment.
I mean, I get that there's ambiguity around the notion of criminal you
know, treason, that's what we're told, treason, bribery, these sorts
of things, they can be crimes, they can be crimes against the body
politic. One could argue that genuine criminal activity in the president's office, in
the executive office, is a crime against the body politic. Right. I
mean, that's why we investigate people for corruption and that sort of thing all
the time, because it's important that we have honest people in office. But
I think it's too much of a stretch to say that somehow the Constitution is
just giving a sort of wholesale blanket check to the a presidential an executive who
wants to use the criminal law against his either former or future political rival.
I think that I don't see anything in the Constitution, the impeachment clause,
etc. That would ever allow that kind of a interpretation, and I think
the Supreme Court should have that, you know what's to say. So so
there, all right, can I sorry, go ahead, John, if
you want to reply to that. Well, look, I think that I
think the important thing is that this has never come up before. Yeah,
because we've never prosecuted president before. Now you guys should like this point.
It's that because no matter what presidents in the past had done, some might
have done things that were you know, criminal too, right, we talked
about just a minute ago, but subsequent presidents chose not to prosecute him because
of good leadership and statesmanship and prudence. Ah okay, no, no,
So that so my point is now that that's disappearing in our public life.
People are defaulting to the legal system to handle question which in the past had
just been handled by presidents being good leaders you know, like Gerald Ford deciding
to pardon Trump, pardon Nixon, excuse me? When if he had,
if he had prosecuted Trump, excuse me, Nixon, he would have surely
been re elected, right because if he barely lost and it was because of
the pardon. So they've been but they've all but Ford I think made a
great decision for him for the country, which was to get Watergate US and
look to the future. And presidents generally did that. But when presidents stop
exercising good judgment, and someone like Biden turns the power of the state against
not just his predecessor but also his main rival for the next election, then
people have to default to the legal system, which is going to drive people
to extremes. Yeah, because there can only be a binary right or wrong
answer. In fact, I agree with Lucretia. If you know, if
Roberts and kavn are trying to shake this compromise that's going to achieve political goals,
we should reject it because that's not interpreting the constitution. The legal system
doesn't allow you to exercise rich results that result in statesmanship and prudence, and
that's the real fault here. Even though we disagree with you guys about the
you know, whether the president has immunity or now, it really isn't a
question we should our system should need to answer because presidents should never exercise their
power over prosecution this way. Yeah. So, I mean, what did
we think was going to happen when we started criminalizing pulled out differences forty fifty
years ago. So here we are, and that, by the way,
is why Trump should win in one form or another for this case. But
a broad point, John, is you've just thrown a slow, fat pitch
down the middle of the plate by bringing up prudence and statesmanship. And I
never try what I'm going to try to draw this to an end and get
onto the campus crystal knock, as I'm calling it, although I'll probably fail.
Look, it seems to me that to settle this we have to go
beyond the text, back to the first principles that inform the text. And
here I want to just share with you a couple of lines from Harvey Mansfield
to illuminate what I'm talking about. So from his great book Taming the Prince,
which I think is, by the way, I mean what Harvey is
what ninety four. Now. I wonder if he will write an article in
next three or four days talking about the application of what he's after in this
very profound book from thirty five years ago. A couple of brief quotes that
are not too enigmatic, even from Harvey first, rather than supposing that our
understanding of executive power today is at its most sophisticated and developed, I believe,
on the contrary, that it is weak and impoverished compared to earlier insights.
What earlier insights is they talking about? When he's talking about how what
is that the fundamental aspect of political life is that involves a lot of arbitrary
power, a lot of arbitrary exertions. There was a moment today I think
I mentioned that where you know, Kagan or somebody said, weren't we trying
to get rid of the arbitrary power of the king by having republican government?
And Mansfield says yes and no. Yes, we want a republican government that's
self government. But you cannot escape the necessity of executive power to argue,
as Locke put it in that famous chapter in prerogative, sometimes beyond or even
against the law. Here's let's see if I can find the great one.
Yeah, here we are. Another passage from Harvey. Executive power is intended
to secure the difference between free government and tyranny by giving the former some of
the power and techniques of the ladder. Let me restate that he says the
difference between free government and tyranny by giving the former free government some of the
power and techniques of the latter tyranny. Now he's not advocating for tyranny,
but he's saying that sometimes presidents in defense of the law, like Locke said,
we'll have to do things that the critics will say or tyranny, which
of course is what Trump's critics say, what critics of Franklin Roosevelt say when
he, for example, violated the Neutrality Act an impeachable offense strictly speaking,
right, and you can mention lots of others. So in other words,
if you think about it for a moment, you cannot escape the necessity in
politics for a executive to say, wait a minute, I have to It's
like Martin Luther, I must take my stand. I can do no other.
That's what Trump did after the election. Forget what the fact for a
moment. I mean, the facts are important, but the point is is
that he has an entirely cogent case to say, wait a minute, this
was a crooked election and I'm not going to stand for it and on behalf
of the American people. And it seems to me that's an entirely respectable argument,
and why the Supreme Court should say, you know what, he's right,
you should win this case. So when I talk about this to students,
I do it in a much more simpler way. It's always craziest,
but okay, you know, you start with a really simple analogy, like
when you get pulled over by a police officer for speeding, for going twenty
miles over this speed limit, and the officer catches you and pulls you over,
and he says, do you know how fast you were going? And
you say, the same speed you were, officer, I figured it was
legal. It's not going to do well for you, right. Why does
a police officer get to break the speed limit law in order to enforce the
law. But we tell the president that somehow he is bound by every anybody's
interpretation of any law, no matter how twisted and sick it might be,
and that if he doesn't meet that twisted, sick definition of the law,
that he's subject to prosecution. I would sooner prosecute the Well, of course
I probably would want to prosecute the police officer for trying to give me a
speeding ticket, But I'm just kidding about that. But the point of the
matter is, it's really it's a simple idea. It's only the executive has
the ability to in our constitutional system, which is somewhat extra constitutional. I
think that's the point Steve was trying to make, to sometimes go above the
law and even against the law, in order to promote a greater public good.
What's the check on that. What's the check that prevents that executive from
becoming a tyrant. It's the police medical check that John was talking about,
for sure. It's not political prosecutions by your political rival. There's no argument
in any universe where that makes sense. That would be my simple way to
put it. So, by the way, I will say this not exactly
the other side of things, John, But you know, I was horrified
about January sixth, and I thought, because there was two more weeks before
inauguration day, and I thought, well, look, if you're serious that
Trump has done all these horrible things, why wouldn't you apeach him in forty
eight hours. No, I have sense changed my mind a lot about January
six but at the time I thought they should have peached him immediately. They
didn't do that. They went till he was out of office. I mean,
it was sort of unseerious. I mean, if they really believed what
they say about Trump and January sixth, why wouldn't they have peached him immediate
They could have done that. They don't need to have a long trial.
That would have been the remedy, it seems to me, and then problem
solved. I don't know, that seems like the dumbest thing I've ever heard.
Steve's sorry, really, you have a whole catalog of the dumbest things
I've ever said. But my point is is that the remedy, well,
actually I'm saying the same thing you are, and as each other is.
I'm saying that, yeah, the remedy is not political prosecutions by the Justice
Department of the next president and so forth. And then and then of course,
the people are gonna it looks like the people are going to have their
say on this in November. This is to me, the more important point
is that the whole immunity thing, I think the court grants community it actually
saves Biden for political responsibility. For this, I'd much rather. I think
this is more consistent with Mansfield's theory of the executive is the way we design
the Republican executive. The way we tame the prince is we still let the
executive have the traditional executive powers, but we tie the accountability and responsibility from
the executive to the people directly, rather than you know, monarchical theories or
divine right of king theories or whatever. And so to me, the best
thing that would come out of this is not for the court to say you're
immune Donald Trump prosecution over What I would rather it be is that the people
this November see how Biden abused the justice system and abused the vast prosecutor prosecutoral
powers of the government to pursue his predecessor and his main rival, and vote
him out of office for it, because they would say, that's an abuse
of what we want executives to do. And to me, that actually strengthens
the executive because it makes sure, you know, the use of the power
is tethered to the people's approval, rather than also asking the courts to save
us from the bad use of executive power that's being exercised by Biden. I
agree with that, John, but that puts how that puts the cart before
the horse, And I'm going to go back. I know I've used this
example before, but I'm gonna go back to twenty ten, in the June
of excuse me. So, in twenty ten, Obamacare's past. No,
you know, no, no Americans voted for it. Remember, as Biden
told us, no Americans voted for it. So in twenty twelve, excuse
me, twenty ten is where a bunch of Democrats lose their seats in Congress
because the people are so unhappy with it. Okay, so the people are
unhappy. And then the case goes before the Supreme Court and Sibelia's versus whatever
the heck it was. Yeah, and John Roberts says that this you know,
we're not here. We're not here to overturn stupid laws. We're here
to make sure things, you know, to find a way that this law
can be consistent with the Constitution. And it's up to the people in their
elections to vote members of Congress out of office if they think what they did
was bad. Right, that's Robert's thing in Sibelians. Right. But what
happens after that June decision. Every damn headline out there is Supreme Court says
Obamacare constitutional. It took the win right out of the sales of everybody who'd
been arguing that it was an abuse of the federal government's power, et cetera,
et cetera, et cetera, and probably was a huge factor in Obama
winning in twenty twelve. My argument is that the Court has put itself so
much in the middle of these things that it can't it can't do what Roberts
wants to do, which is decide to step back and worry about the integrity
of the court and let the people decide when they've inserted themselves into every thing,
even so far as to talk about the suit brought by what was at
eleven different states back in twenty twenty, where they argued that their equal protection
rights were being violated in this and that the other aspects of the state powers
because so many other states violated their own laws by changing election practices, et
cetera. And the Supreme Court refused to hear the case, they refused to
grant standing to the case to the states who were suing other states. Seems
to me that's a little bit in the constitution, idiots, But okay,
what happens. Even the Supreme Court said that Trump had no evidence of electoral
fraud that was not what the Supreme Court said. But what happens is the
Supreme Court has made itself a lightning rod for these political questions, and whatever
decision they come out with on this is going to be so easily abused and
misinterpreted and misused and everything else. You want to say that it's impossible to
have that lovely opinion that you just gave that I agree entirely with in theory.
In theory, you're absolutely right, but that would be in a vacuum.
It wouldn't be in the universe we live in. So we're going to
mark you down. Lucretia has undecided about the Supreme Court, and the Supreme
Court and the idea that that that that Roberts with his stupid balancing acts is
going to somehow fix it is just ludicrous. That's what really bothers me.
And I think John agrees to me, agrees with me about that, because
I do. I might want to say that John wants to say stick to
the Constitution, stick to the Constitution, and if it's somewhat ambiguous, stick
deeper to the Constitution. I'm agree with that. Well, all right,
for the fans, you can't see Lucretia's rant on the Supreme Court strangely made
me feel so hungry. I had to go out and get a wah wah
soft pretzel while she was talking and eat almost the whole thing, because you
John, you gotta get jagular. You're in Philadelphia tonight, Philadelpia. It's
cold. But the most more thing is I've got this wah wah soft pretzel
sitting right here. Oh look at that, and started going off on the
court. I got really hungry reading already. Well, and let's just say
that, I mean, let's draw to a clothes This is way. People
always say that you shouldn't judge the way a case may go by the oral
arguments, and of course that's true, that's right. I think today the
two most inscrutable people of the six Conservatives were the Chief Justice, who seemed
to be said the least he presided very well the ordinary sense, and then
Barrett was also somewhat reticent. I thought, I thought she had this weird
idea that you could have some kind of other kind of immunity, right,
this idea which she's got to be referring to, like qualified immanity, which
doesn't make a lot of sense, right, Yeah, she's looking for a
compromise too. No, it is, so I don't know how. I'm
not going to make any predictions. Look, the other big story going on
right now, which we've talked about endlessly, but now it's reached an acute
phase, is what I'm calling crystal knocked on campus. There's Columbia USC announced
here the middle of the day Thursday, that they are canceling graduation, which
normally takes place I think in the coliseum. Sixty five thousand people normally come
to it, which is kind of amazing to me. And by the way,
think about this for a moment that a lot of the people graduating this
year from college are people whose high school graduation did not occur four years ago
because of COVID, and now their college graduation, at least at USC and
probably elsewhere, is in jeopardy. By the way, I expected dollars a
year on college. Yeah, are you going to forget all that? I
mean, if you go to USC, you deserve to spend that kind of
money. Okay, sorry, that's my point. Okay, But look,
the point is, I'll bet there's going to be a lot of disruptions of
commencement this year. Uh, and what a bunch of whims USC are by
the way, I mean they're gonna I think it's in the call. I'm
not sure it's coliseum or the sports arena, but you know we have security
for the Super Bowl. And I do remember John, you know, our
chancellor after the Mileo. She took off ue after the Milo Unapolis disaster,
and then when Ben Shapiro was invited to come speak, she spent six hundred
thousand dollars in security and made sure that thing was gonna happen. And it
upset all the lefties on campus. And I was very proud of her for
doing that because she said, we're not gonna let the left take over the
campus and stop Ben Shapiro from speaking. And I don't know if we've talked
about this, because this is seven or eight years ago now, but you
know, Jersey barriers showed up at two o'clock in the morning on the entire
perimeter of the Berkeley campus and a huge show of police force. No one
could get in with a backpack or anything that and Shapiro's talk went off without
a hitch, and that broke the fever. Why can't USC do that.
Oh, I should back up. You know, USC had picked as their
commencement speaker a person who a young lady who had had stellar grades, but
it turned out she was an anti semi and then it canceled her as their
commencement speaker. This is a week or ten days ago now, And of
course they mumbled about, well, we're worried about safety and offending people.
No, they should have been embarrassed because they picked someone who was an anti
Semitic loon and they wouldn't admit that openly. And now you know they they've
had this fuss the last couple of days and have canceled their graduation like cowards.
And I didn't even want to start in Columbia. But I'm not very
optimistic here, do you know. Usually I'm the one who says, you
know, here and there we see something good happening. But I was optimistic,
Steve, you were really Yeah. I was optimistic when I saw my
feel good story of the day. Did you see this, John, that
Harvard students decided to start their occupation of Harvard Yard last night? And it
made me think of it because you put your coat on. I supposedly got
down in Cambridge last night did thirty six degrees. So they're all out in
their tents and at four o'clock in the morning, the sprinklers came on and
all their pets who were flooded and they were freezing to death. And I
just thought that was the best thing I heard all day. I made me
very happy. Sorry, yeah, feel good thing. Yeah, but you
know nothing. I mean, there are a few campuses. I mean,
USC cleared people out, but I don't know that day was actually spending a
night in jail. Texas is apparently clearing people out of their campus. Oh,
and you have faculties showing up to defend the students. You know,
again, Lucretian, I talked about this a couple of weeks ago when we
were out in Phoenix for Amalgirls conference. Is I mean, I don't want
that from a rant here, but you know, when you had those a
handful of white supremacist young guys at Charlottesville in twenty seventeen, you would have
thought that was the greatest threat to civilization ever. From the New York Times
and the liberals, Wow, you have it everywhere from the left, and
the faculty comes out to the large numbers of the fact that we come out
to the fendlyse students, and I don't know why they're not all just fired
summarily. But of course not right. They'll keep up defending George Flood riots
too. And you know what I did, by the way, when somebody,
when in a college meeting, somebody suggested that they all march on a
specific day. Da da da da da, I said, you say another
word and I will have you. I will have you brought up on charges
for using university resources to advocate a political position. And everybody goes. I
said, it's on page do da da da da da da da da,
and you can be fired from your job or lesser consequences if you say one
more word on this university meeting about your political views or advocating a political position
or political activity. No wonder you're so popular. No yeah, I know,
I know. No wonder people hack my email and send out please I
I'm desperate, Please send me ten thousand dollars stuff like that. I've liked
two points. So one is I know the provos at USC Andrew Gooseman,
who's had to make all these decisions because he was a colleague of mine at
the law school for fifteen years or so before he left to be dean at
the USC Law School. And he's an economist. And if anybody you know
who, if anybody suspicious of mocism, it's generally economists. And the bad
thing though, is that he's Canadian. Oh so you know he's trying to
figure out I mean, I haven't talked about this, but you know they,
you know, the Canadians, they don't like conflict. You know,
they want to, you know, find some compromise everybody could live with.
So I could see why he would ansel graduation rather than risk some kind of
confrontation that could become violent. To me, that's not as bad as Columbia
forcing all classes to go to zoom right right, that's really giving in.
I have to I have to insert my Babylon b here, John, just
for you Asian kid who actually went to Columbia to learn, getting real sick
of this crap. Well Canadians, I mean, any any Asian kid who
was relegated to Columbia's an embarrassment to their parents. What's the great old joke
about you know, it had been if Captain Bli had been Canadian, the
whole story would have been strong disagreement on the bounty. All right. I
actually liked what happened at u T Austin by the way, I mean right,
the chancellor and the governor, I think Governor Abould actually yeah, you
know, was made clear that anybody who tried to hold an unauthorized protests and
block people's move was going to be arrested. And they arrested them all right
away. Yeah. I saw video of like the mounted police coming in.
Yeah, and supposedly priests people. What would they do if a whole bunch
of Nazi skinhead kids got out there and argued that they needed to that death
to people of color, death to people of African decid I don't know you
think of the anything like that that the you know, the left finds that
actually everybody finds objectionable. I shouldn't even but but they would never tolerate that.
There would be no free speech for somebody to say affirmative action, uh
just means didn't earn it and we need to get rid of all minorities on
campus. There's there's an opinion, it's a stupid opinion, But doesn't free
speech cover it? And why couldn't you get out there and put up tents
and protest that too, and they'd never allow it, right, I mean
it's or even what about faculty members, right, some faculty members I think
someone was at Columbia said, oh, the October seventh attaxan gozz were great
and we're supporting that. Can imagine if fact member it got up and said
there should be no more gay marriage, you would be fired. There should
be no more gender neutral restrooms? Yeah, you would be out on You
would be fired. Well, I mean to me, the deeper question here
is is any administration at any call or any group of trustees going to say,
you know, the deeper problem here is we have allowed the incubation of
these poisonous ideologies of anti colonialism and all that, and admitted too many foreign
students and taking too much money from Cutter, who, by the way,
I think is financing these tents you see everywhere. This is my suspicion and
that I'm very I'm very doubtful is going to happen. But it's what needs
to happen and what ought to happen. And when you know, George Packer,
my article of the week that I sent to you guys, was George
Packer in The Atlantic saying, golly, maybe the university is responsible for this
climate of hate against Jews, and golly, maybe something should be done about
it. Is I pointed out, actually, John pon Honz the commentary said,
you could have read that article anytime in the last forty years in any
conservative magazine. And now some of these establishment types are figuring this out.
But I think it's too much, and their cowards too. Wait, it's
a little deeper. It's that, as you guys pointing out, if it
was a conservative protest, these guys would know exactly what they would want to
do. They're paralyzed because they just can't believe it was turned on them.
Yeah. Yeah, that's the real problem. It's it's not that they don't
really. That's an argument I've been making, honestly, not an argument because
Steve, I think agrees with me. A point I've been making even before
we thankfully added you as a co host of the Three Whiskey Happy Hour,
John, and that is that the left, the radical, despicable, subhuman
left, gets away with so much because the more rational, the get along,
the go along to get along lefties who yeah, you know that's a
little rat. Wait, I support them. Yeah, they actually don't always
know or acknowledge or or or actually, you know, they listen to NPR.
Actually, by the way, John, Sorry, okay, I'll come
back to that, they listen to NPR. They don't have a sense of
how really awful the project of the left is. I cannot tell you how
many times I talk to somebody and they have no clue, for instance,
that there were actually, you know, third grade teachers encouraging young a little
girl who comes dressed like a tomboy to transition to a boy, not tell
her parents and start taking hormone blockers. You know, they think I'm crazy
when I say something like that. And so that's the way the left manages
it. And what you said, John is just a deeper, more profound
way of expressing that. Now back to NPR. I was listening. I
was listening to an old podcast of ours when I was on the on the
Trumpmill the other day, and we somehow the whole subject. Steve said something
that sounds like something you get off NPR. And you said, wait a
minute, I love NPR and I want to get that little that little clip,
and how steep play it if we were actually going to discuss NPR,
but we never ended up doing so, so well, they're not going away.
We'll get other chance, I know. But anyway, it's so great.
And then of course I come back with the you just love their schweaty
balls. Yeah, it's sad NightLive. I just don't like hearing Lacurtia say
it. I don't like to say it, to be honest. It's kind
of file. But but hey, you know what, maybe I'll start a
new career being U crackhead Barney too. Are you guys watching crackhead Barney.
No, I don't even know what you're talking about. Oh my gosh,
I'm not even going to go any further. You guys just have to get
off this podcast. Go just she had it, I can't. She's the
person. It is the person who went up to Alec Baldwin when he was
standing at a counter paying and on his phone, and she just starts screaming
in his face, Free Palestine, Free Palestine. But she oh, okay,
he walks around wearing nothing but a diaper and body paint. Oh I
totally missed this. I saw some Morgan last night. He interviewed her you
got to look that up because I didn't see some clip on YouTube or somewhere
some woman yelling at Alec Baldwin the last few days. Why did you shoot
that woman or something about that whole you know, the movie said she didn't
ask him any of that. There is somebody else. This is somebody else.
This is a separate thing. So well, all right, we should
draw to an end here. I mean, all these subjects will be ripe
for next week and months to come. So do you have some good Babylon
bees for us? Un I was gonna shock you guys and put up a
picture of craighead Barney. But okay, So in keeping with our last subject
sad Harvard College students so caught up harassing Jews he forgot to turn his in
his term paper on inclusion. That's good, that's good. Oh the bees
having a field day. Yeah yeah, I mean, actually, uh,
our friend Richard Samuelson sent me a bee yesterday which was something like, uh,
Hilliard Hilliard College goes one hundred and fifty years without any violent protest,
And it was actually, yes, sorry, it was Hillsdale College one hundred
and eighty years without an anti semitic protest. Yeah right, and I said
that's a parody. This is that's actually true. So one more, and
that Israel must end it's illegal occupation, cry people staging illegal that you probably
heard the news about all the people that the twits and Arizona indicted. Arizona
indicts Trump allies for questioning election results while Republican John I'm glad you laughed at
that. Trump will receive a fair and impartial trial, says judge, as
construction crew builds gallows outside. Yeah, and then I'll just kind of end
it with this one. Columbia protesters clarify they only want death to America after
America is done paying their student loans. Oh man, there we go on
forever. But we shouldn't, so John, you want to begin launching us
out as usual. Yes, always drink your whiskey, meat, let's grow
go Brandon and Steve, God save the Queen man paws. You got that
thing right now? Yeah, that was pretty good. Pause. Okay,
mm hmmm. Ricochet join the conversation