Speaker 1: Welcome once again to another episode of The Oath and
Speaker 1: the Office. I am John people sang, and right now
Speaker 1: we are witnessing a series of extraordinary clashes over the
Speaker 1: rule of law, the separation of powers, fundamental democratic norms,
Speaker 1: and from what's being described as an extortion demand over
Speaker 1: infrastructure to full on attacks on press freedom in Jersey
Speaker 1: and New York. A federal judge just blocked an effort
Speaker 1: to shut down the Gateway Tunnel for a president's vanity.
Speaker 1: The DOJ executed a search warrant at the home of
Speaker 1: a Washington Post reporter. What did these events say about
Speaker 1: the health of American constitutional democracy? I have no idea.
Speaker 1: I'm a dopey comedian. That's why I lean on the
Speaker 1: star of our show, best selling author and professor, Corey Bretschneiter. Corey,
Speaker 1: it's good to see you, Welcome back.
Speaker 2: It's always a pleasure, John.
Speaker 3: And as horrible as things get, I look forward to
Speaker 3: this conversation every week.
Speaker 2: It gives me hope.
Speaker 3: And speaking of hope, we're gonna have after our discussion,
Speaker 3: a discussion with pre Berrara.
Speaker 2: His podcast is called Stay Tuned.
Speaker 3: I hope you'll stay tuned for that and uh, you know,
Speaker 3: it's an in depth conversation that we'll have with him
Speaker 3: about questions of integrity in the midst of such destruction.
Speaker 2: And so let's get to the destruction.
Speaker 4: Let's do it.
Speaker 1: You and pre Ferrara one on one is that's like,
Speaker 1: that's like pouring for the angels, Sir. That is just
Speaker 1: a brilliant conversation.
Speaker 3: But I Woanta, I want to before we get to there,
Speaker 3: quote from like somebody famous or you just no.
Speaker 4: I just that's something I made up.
Speaker 1: But let's before you get to your exalted conversation with
Speaker 1: pret Burrara, come down to the mud with me for
Speaker 1: a bit, Professor. Let's beget this because these current headlines
Speaker 1: about the temporary restraining order to stop the shutdown of
Speaker 1: the Gateway Tunnel project, which affects millions between New Jersey
Speaker 1: and New York City in essence blocking a political move
Speaker 1: to coerce state and local consent, I mean, Donald Trump
Speaker 1: essentially came out and said, I will release the funds
Speaker 1: for this critical infrastructure project if you name Penn Station
Speaker 1: and Dulles Airport after me. Now, Corey, we discussed this
Speaker 1: on serious XM already, but traditionally what you do is
Speaker 1: if you want to have buildings named after you, you do
Speaker 1: good things for people, and then later they name buildings
Speaker 1: after you to honor you for the good things you
Speaker 1: did for them. This president's doing it differently. He is
Speaker 1: trying to blackmail people into naming things after him that
Speaker 1: are already named and saying he will hurt them and
Speaker 1: not let the projects be built and waste billions if
Speaker 1: he doesn't get what he wants. I mean, is this
Speaker 1: a form of extortion that crosses legal lines or is
Speaker 1: this just really a pathetic, narcissistic version of political brinksmanship.
Speaker 3: Well, I think you know it is narcissism. And this
Speaker 3: is a person who wants to put his imprint. He
Speaker 3: put it on buildings in New York City, and now
Speaker 3: he wants it on a public monument in New York
Speaker 3: City or train station. He wants it on airports. He
Speaker 3: really wants to brand the name Trump. We would put
Speaker 3: it on the Lincoln Memorial if we let him. He
Speaker 3: wants to put that brand on our entire country and what.
Speaker 2: That stands for.
Speaker 3: It's a symbol, I think, if nothing else, of the
Speaker 3: destruction of democracy into a kind of kleptocracy of regime
Speaker 3: of theft, and you know, thankfully he can't be indicted
Speaker 3: for extortion likely that you know, there's a question anyway
Speaker 3: about whether this is part of his official duty, but
Speaker 3: a good chance courts would say it is, and as
Speaker 3: part of his official duty, it's protected. That's the horror
Speaker 3: of the immunity case. That's part of why we're talking
Speaker 3: all of this. You know, I wish I could say, yeah,
Speaker 3: in Dietem he committed a crime, but there are other
Speaker 3: ways to go at him. And what's happening is that
Speaker 3: this project in New York and New Jersey is pushing
Speaker 3: back saying that this is a breach of contract. You
Speaker 3: can't just agree to a plan in which there's expense sharing,
Speaker 3: have an entire contractual arrangement, and then up end it
Speaker 3: with an extortion demand. So I think there is a
Speaker 3: realistic possibility, very strong possibility, that if Trump tries to
Speaker 3: stop this project, he's not going to get his name
Speaker 3: on the building. That's clearly not happening. But I think
Speaker 3: he also won't be able to stop the funding. And
Speaker 3: so yes, ideally he'd be indicted for something like this
Speaker 3: all sorts of things, one of many things, but realistically
Speaker 3: what's going to happen, I think is that courts will
Speaker 3: slow him down and stop him from succeeding in this
Speaker 3: attempt to brand all of us with his name.
Speaker 1: I mean, from a constitutional governance grown up standpoint Corey,
Speaker 1: how dangerous is it when a federal authority is wielded
Speaker 1: in such a seemingly personal and dare I say petulant way?
Speaker 1: I mean major infrastructure a funded in part with federal
Speaker 1: dollars relied upon by millions. It affects the economy when
Speaker 1: that becomes leverage for a personal conflict, not even about policy.
Speaker 1: I mean, what does that mean for the rule of law?
Speaker 1: Is there any legal precedent against this kind of tactic?
Speaker 2: Wow?
Speaker 3: You know, I would say, just to go back to
Speaker 3: the beginning, like, isn't this extortion that sure looks like
Speaker 3: it to me? And isn't that criminal trying to basically
Speaker 3: use public money in order to get your demands? I mean,
Speaker 3: it's mafioso in its characterization. And the thing that's really
Speaker 3: unprecedented is the Supreme Court's decision that the President of
Speaker 3: the United States has all sorts of immunity. Again, it's
Speaker 3: limited that we've talked to Sheldon White House about waste
Speaker 3: through legislation to coordinate off to define official duty very narrowly.
Speaker 3: But the bottom line is, what's unprecedented is not prosecuting
Speaker 3: somebody for extortion, the idea.
Speaker 2: That we're all under the law.
Speaker 3: So now we've got to find other more creative ways
Speaker 3: of fighting back. And that's the reality of this regime
Speaker 3: that we haven't face all unprecedented. A president of the
Speaker 3: United States, this naked and this aggression. We've seen other
Speaker 3: presidents act out in different ways, but this kind of
Speaker 3: raw extortion. We saw it from a vice president, that
Speaker 3: kind of corruption spureau agnum, But from a president in
Speaker 3: the open doing this, I think that really is different
Speaker 3: from what we've seen before.
Speaker 1: I want to turn it now to another report that
Speaker 1: the DOJ executed a search of a Washington Post reporter's home,
Speaker 1: professor and filed a bar complaint related to coverage. Alarm
Speaker 1: bells have been going off in all the hot First
Speaker 1: Amendment circles on this. Jeff Bezos, of course, has had
Speaker 1: no comment about a reporter's home being searched, and this
Speaker 1: is a reporter who people leak to. How do you
Speaker 1: view this in light of constitutional protections for the press.
Speaker 1: It seems like this is done to intimidate other journalists
Speaker 1: more than to punish one.
Speaker 3: You know, I think our first story, John is important symbolically.
Speaker 3: It's about a president trying to put his name on
Speaker 3: our building and to destroy democracy in a sort of
Speaker 3: symbolic way. But when I think about this story, if
Speaker 3: I had to pick one thing that defines whether or
Speaker 3: not we're in a dictatorship or a democracy, it's whether
Speaker 3: or not the dictator can imprison those and investigate those
Speaker 3: who are doing.
Speaker 2: Things that displeases him. And you know, you like to
Speaker 2: think that.
Speaker 3: In America, of course, we have a First Amendment, not
Speaker 3: just a guarantee of the freedom of press, but a
Speaker 3: guarantee of free speech more generally. And you know, in
Speaker 3: the hot First Amendment circles, which I include the Supreme
Speaker 3: Court in that circle, and all those of us who
Speaker 3: care about the rule of law, not Donald Trump and
Speaker 3: his cronies, that's not even a hard thing to talk about.
Speaker 3: And we don't just have, thankfully, the First Amendment. There
Speaker 3: is legislation protecting journalists from being prosecuted for their work.
Speaker 3: And yet all of that, all of those laws, it's
Speaker 3: not just norms. We're going to talk later about the
Speaker 3: DJ and norms. These aren't norms. There's legislation, there's the constitution.
Speaker 3: Are just being blown through, and they're trying to essentially investigate,
Speaker 3: maybe charge journalists for doing their job under the grounds
Speaker 3: that they're committing espionage. Just to get into it. This
Speaker 3: is about an investigation into the kind of pressure on Meiduro,
Speaker 3: what was happening in Venezuela. This isn't sideline stuff. It's
Speaker 3: the heartbeat of the questions facing us right now as
Speaker 3: a democrat. And if you can't have investigations here, then
Speaker 3: in what way do we have a democracy? It's why
Speaker 3: the collapse into dictatorship. Are we collapsing? Have we collapsed?
Speaker 3: That is a very real question right now, and this
Speaker 3: example is one of the best for showing that.
Speaker 1: I mean, can you just explain what are the legal
Speaker 1: limits that the DOJ is supposed to observe before they
Speaker 1: target a journalist or their communications. I mean, is there
Speaker 1: some kind of constitutional threshold here that has to be
Speaker 1: met to justify going into this lady's house and taking
Speaker 1: her laptops and phone.
Speaker 3: Well, you know, there is a clear answer about that.
Speaker 3: When the preperraras of the World when he was US
Speaker 3: Attorney for the Southern District of New York, when he
Speaker 3: was working at the Department of Justice.
Speaker 2: We've had Glenn Kirshner on the show now twice.
Speaker 3: When he was at the Department of Justice, there was
Speaker 3: a rule that had to be followed internally, which was
Speaker 3: essentially was, don't prosecute journalists for doing their job. If
Speaker 3: a journalist kills somebody or commits murder, fine, but not
Speaker 3: for journalists. And you can guess what's happened to that
Speaker 3: rule under the Trump administration. Pambondi has not just gotten
Speaker 3: rid of it, but just.
Speaker 2: Blown past it.
Speaker 3: And you know, there are laws about espionage, for instance,
Speaker 3: that traditionally just don't apply to journalists, and there's legislation
Speaker 3: to protect against that. But when you're Pambondi and you're
Speaker 3: doing the bidding of a president of trying to shut
Speaker 3: down democracy by shutting down descent and shutting it down
Speaker 3: the information flow that the press needs to give us
Speaker 3: to make decisions as citizens, again that's as important as voting.
Speaker 3: The lines are blown past and all of these norms
Speaker 3: that protected us, all this law that protected us, seem
Speaker 3: to be a minimum eroding now it's not over. I
Speaker 3: think that the judiciary here, it's such a line that's been.
Speaker 2: Crossed, they'll push back.
Speaker 3: But there is a chilling effect and that's part of
Speaker 3: the danger here, that the press is being shut down
Speaker 3: by the president, even if he doesn't succeed in a
Speaker 3: prosecution imprisoning this journalist, there's fear and that's.
Speaker 1: It seems like this is directly connected in a way
Speaker 1: to the Gateway tunnel story with infrastructure.
Speaker 4: It's all about intimidation.
Speaker 1: Yes, it's all about this government trying to use fear
Speaker 1: to get its own way.
Speaker 4: It's not really about policy.
Speaker 1: I mean, there are people who are defending this search
Speaker 1: of a reporter's home saying that, you know, it's law
Speaker 1: enforcement acting within their boundaries. But what happens when a
Speaker 1: DOJ does things that have the effect of chilling reporting,
Speaker 1: especially on matters of public interest. It seems like, again,
Speaker 1: this is why they went after Don Lemon and those
Speaker 1: four journalists and for covering the protest and the Saint
Speaker 1: Paul church. They know Don Lemon and the black journalists
Speaker 1: didn't break the law. They're trying to scare other journalists.
Speaker 3: Yeah, and John, I think that's such an important point
Speaker 3: that a lot of times. And I think when you
Speaker 3: and I started talking about all this in twenty sixteen,
Speaker 3: when Trump was running, when even early in his first term,
Speaker 3: and you know, Preperr is an example of this, you know,
Speaker 3: fighting back, refusing to resign, getting fired. The norms were
Speaker 3: so wrong that we thought he's not going to succeed.
Speaker 3: And now we're in a different world, which is that
Speaker 3: the question isn't whether or not people are going to prison,
Speaker 3: whether or not these prosecutions are successful. It's whether or
Speaker 3: not he can intimidate us into being quiet. And now
Speaker 3: you and I are talking every week. I don't anticipate
Speaker 3: us stopping that. There are lots of others speaking out,
Speaker 3: but there are a lot of journalists, I think, who
Speaker 3: are being targeted who must think to themselves, I'm not
Speaker 3: sure I wouldn't go through with this. Now it's a
Speaker 3: different story. But if you add in Jeff Bezos's evisceration
Speaker 3: of the Washington Post and how hard it is to
Speaker 3: keep your job in journalism, you know it might succeed
Speaker 3: in having that chilling effect and that idea of the
Speaker 3: chilling effect, and just to say what that means, it means,
Speaker 3: you know, apart from the hard power of putting people
Speaker 3: in prison, scaring people into thinking they might be investigated
Speaker 3: or prosecuted. That's equally detrimental to the First Amendment.
Speaker 2: We've got.
Speaker 3: It's not just a chilling effect, it's a storm, an
Speaker 3: ice storm of the chilling effect of free speech.
Speaker 2: To shut down of free speech, we.
Speaker 4: Got to take a quick break.
Speaker 1: But when we come back, the least didictable members of
Speaker 1: the resistance to stare down subpoenas by Congress, Bill and
Speaker 1: Hillary Clinton in twenty twenty six will be back in
Speaker 1: a moment.
Speaker 4: This is the oath and the Office.
Speaker 5: Here's what you've been missing on the Stephanie Miller Happy
Speaker 5: Hour podcast.
Speaker 2: This is the putin. I'm not saying that's ruy.
Speaker 6: Lie, not gonna put.
Speaker 7: It Obama ape video.
Speaker 5: He's like, you know, the sixteen different explanations, right, like
Speaker 5: I was a staffer. Oh no, I told the stafford
Speaker 5: to do it. No, I'm not gonna apologize. I mean,
Speaker 5: you know how I'm gonna take it down now, I'm
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Speaker 5: and everyone knows there's no staffer that posted from your
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Speaker 6: It's just such a whiner, just again, whining point USA
Speaker 6: all they do and again it's Putin's just lie. Hold on,
Speaker 6: I'm calling Putin for advice like keep them lying, just
Speaker 6: keep lying.
Speaker 2: Why do you call in the book?
Speaker 7: I kill you lie lie light booth, go me again.
Speaker 7: I'm blocking you.
Speaker 5: Subscribe to the Stephanie Miller Happy Hour podcast on Apple Podcasts,
Speaker 5: Stephanie Miller dot com, or wherever you get your favorite podcasts.
Speaker 1: Welcome back to the Oath and the Office. I'm John
Speaker 1: Peeble saying, along with Professor Reretschneider Corey, I want to
Speaker 1: talk to you about the Clinton subpoena dynamics we've witnessed
Speaker 1: this week. This has been a really fascinating story and wow,
Speaker 1: it's been a long time since I found myself standing
Speaker 1: up and rooting for both of the Clinton's at the
Speaker 1: same time. But we've seen these reports that Hillary Clinton
Speaker 1: is pushing for a public hearing ahead of this deposition
Speaker 1: related to the Epstein files. Bill Clinton did quite a
Speaker 1: hell of a Twitter threat about how he will not
Speaker 1: be a prop for these people. And there's a broader
Speaker 1: fight going on here over congressional oversight tools. They seem
Speaker 1: to have really embarrassed James Comer, and a lot of
Speaker 1: people are wondering what, why are they doing this? I mean,
Speaker 1: no presidents testified before Congress since Gerald Ford, like forty
Speaker 1: years ago. How would you assess the legal and constitutional
Speaker 1: contours of this battle with the acknowledgment that this is
Speaker 1: all a distraction from the fact that Trump and panbody
Speaker 1: have been protecting child rape illegally breaking the law every
Speaker 1: day since December nineteenth.
Speaker 3: Yeah, I think that's the most important place to begin, Like,
Speaker 3: why were we even talking about this. It's because Trump
Speaker 3: is trying to cast off any guilt and implication that
Speaker 3: he might have in the Epstein evils. I think we
Speaker 3: can call it based on what we know at this
Speaker 3: point and put it on one of his opponents. Again,
Speaker 3: that's the common theme, Hillary Clinton and also increasingly Bill Clinton. Now,
Speaker 3: they would be well within their rights and I think
Speaker 3: they would win to simply fight and court the subpoena,
Speaker 3: because there are rules and principles of law that govern
Speaker 3: when Congress can force people to testify and when it can,
Speaker 3: and that is what a subpoena is. It's compelled testimony,
Speaker 3: and the question is whether or not there's some legislative
Speaker 3: purpose here. Now, if Congress was considering, you know, legislation
Speaker 3: to correct the evil of Epstein, to look into the
Speaker 3: wrongdoing of these networks and to break them up, then
Speaker 3: I think, okay, there's a legislative purpose.
Speaker 2: But what's the purpose here? If the purpose is.
Speaker 3: To deflect from the guilt and attention on the President
Speaker 3: of the United States and Pam Bondi and covering up
Speaker 3: again evil, that's not a legitimate purpose.
Speaker 2: So they could fight back. So why are they not?
Speaker 3: I think because they know they could win in court,
Speaker 3: and I think again they would, but they seem to
Speaker 3: be and I'm willing to praise them for this, demanding
Speaker 3: more and more transparency. Want transparency, will give it to you.
Speaker 3: And Bill Clinton is indicating that he knows something that's
Speaker 3: going to educate America about all right. You know, I
Speaker 3: think he could just tell us. That would be one
Speaker 3: way to do it. Ready to do it in this
Speaker 3: dramatic fashion by facing off against House Republicans.
Speaker 2: More power to them, let's see it.
Speaker 1: I was at the DNC two summers ago, and of
Speaker 1: course Bill Clinton was the guy who went off script
Speaker 1: for twenty minutes, just went off the telepropter. He does
Speaker 1: know how to high jack something, and we forget what
Speaker 1: an incredibly compelling orator he is. But yeah, I mean,
Speaker 1: this is the smartest pr I have seen Bill Clinton
Speaker 1: do in many many years, that that he urgently wants
Speaker 1: to come out and do it. Now, You're right, he
Speaker 1: could just get himself booked on any TV show. Hey, Bill,
Speaker 1: serious exp progress. I'm here baby, waiting for you.
Speaker 2: How about the in the Office pot in the Office podcast? Bill?
Speaker 1: Come on, I mean, I live near Harlem. We're all
Speaker 1: practically neighbors. But oversight via subpoena power is supposed to
Speaker 1: be whe of Congress's core constitutional authorities. I've learned that
Speaker 1: from you, and we learned that when the Republicans just
Speaker 1: loved ignoring their subpoenas because they don't have to. But
Speaker 1: what happens to the balance of power when subpoenas are
Speaker 1: ignored or or contested at the executive level.
Speaker 2: Well, I think it's a balance.
Speaker 3: You know, during the compulsion to testify of people in
Speaker 3: the Trump administration the aftermath, I thought that, you know,
Speaker 3: there was a serious legislative purpose to compelling some of
Speaker 3: this testimony. Of course, Bannon refused to testify in and
Speaker 3: went to prison for it. But you know, I think
Speaker 3: the balances we have to remember there are moments in
Speaker 3: history where Congress has abused its investigative power. So it's
Speaker 3: not as simple as if you're brought to testify, then yes,
Speaker 3: you should have to do it. So I think of
Speaker 3: the red Scare of the House on American Affairs Committee,
Speaker 3: for instance, which is all about attacking those on the left,
Speaker 3: communists but also progressives and people who were to the
Speaker 3: left of center. And were those subpoenas legitimate, No, absolutely
Speaker 3: they were not, and so they were an attempt to
Speaker 3: use the tools of government in order to shut down opinion.
Speaker 3: And I think here too, it's more complicated. It's not
Speaker 3: just that it's an attempt to deflect from the responsibility
Speaker 3: of the President of Trump and it's not a legitimate purpose.
Speaker 3: So yeah, I think they would be within their legal
Speaker 3: right to fight back.
Speaker 2: But again, you know, they're savvy politicians. They can defend themselves.
Speaker 3: They're not in a position where they're going to look
Speaker 3: bad in front of this committee. And my bet is
Speaker 3: on them that they are going to bring out some
Speaker 3: truths that we haven't seen before, and in the process
Speaker 3: humiliate their political opponents.
Speaker 4: I think you're right, and oh, I'm buying popcorn.
Speaker 1: I think for that very reason, we'll see James Comer
Speaker 1: demure from this when he realizes that humiliating the Clintons
Speaker 1: won't get him some table scraps from mister Trump.
Speaker 4: I want to ask about this, this.
Speaker 1: Article you sent me in the New York Times that
Speaker 1: blows my mind about the DOJ trying to recruit prosecutors.
Speaker 1: The reports say that they're recruiting prosecutors with a strong
Speaker 1: view of federal enforcement. What does that mean? Well, in
Speaker 1: this case, it seems to mean that they align with
Speaker 1: the political priorities of this current lawbreaking administration. In other words,
Speaker 1: they're having a hard time hiring prosecutors to do their
Speaker 1: dirty work for them. This is fascinating from a constitutional perspective.
Speaker 1: From an institutional perspective, I mean, what are the risk
Speaker 1: of recruitment strategies like this. We don't want you to
Speaker 1: be loyal to the law. We want you to be
Speaker 1: loyal to the game show host running the government.
Speaker 3: Well, I just think what a topic and what a
Speaker 3: lead in This is the in depth interview that pre Perrara.
Speaker 3: I'm going to certainly ask him about this and talk
Speaker 3: to him about it, but as an initial way in,
Speaker 3: let me just say this. You know, the Department of
Speaker 3: Justice used to be a highly prestigious position. One of
Speaker 3: the most impressive things that you could do out of
Speaker 3: law school or really any point in your law career
Speaker 3: would be to go and to work in one of
Speaker 3: the divisions of the Department of Justice. The Department of Justice,
Speaker 3: by the way, founded during the Grant administration to protect
Speaker 3: civil rights, to enforce the Ku Klux Klan Act and
Speaker 3: shut down the white supremacy that was left in this
Speaker 3: country in the aftermath of the Civil War.
Speaker 2: What a proud history.
Speaker 3: And I think for so much of its history, the
Speaker 3: Department of Justice did amazing work, even during the Nixon administration.
Speaker 3: Archibald Cox who went after the President for his crimes,
Speaker 3: exposing him, working with the Grand Jury that uncovered so
Speaker 3: much of the crimes of Watergate, later handing it all
Speaker 3: over to Congress and a failure to indict the president. Yes,
Speaker 3: but still a proud moment. Leon Jaworski who continued that
Speaker 3: fight the aftermath of Nixon.
Speaker 2: All of this, what I'm summarizing.
Speaker 3: Is this is a prestigious proud part of our government
Speaker 3: for so long, and now it is the opposite. It
Speaker 3: is the tool, the weapon of this president. And guess what,
Speaker 3: people don't want to go work there. So what does
Speaker 3: that mean. It means really the hollowing out of this
Speaker 3: institution and the use of it to go after political opponents.
Speaker 3: Here's one silver lining that I'm going to ask pretty about.
Speaker 3: Maybe their incompetence helps at least in some of these cases,
Speaker 3: because you know, with better lawyers, maybe they would succeed
Speaker 3: in going after some of their opponents.
Speaker 7: Exactly.
Speaker 1: I mean, you're right, and that is why we know
Speaker 1: that they're kind of doomed to failure. This whole thing
Speaker 1: of deliberately hiring unqualified flunkies. I mean, Pete, hegseeth cash,
Speaker 1: but tell cash, but tell like he's hiring these people
Speaker 1: because they're not going to say no, mister President, that's illegal.
Speaker 1: He's hiring them because they're obediently unkies who are easily disposable.
Speaker 1: And if, say in the case of Christy Nome, things
Speaker 1: ever get too hot or unpleasant for Trump, you just
Speaker 1: land them like a boil and they take all the blame.
Speaker 1: The flunkies don't seem to realize, professor, that this Supreme
Speaker 1: Court immunity doesn't apply to them. But beyond that, it
Speaker 1: just seems like this is going to wreck this whole
Speaker 1: partisanship in recruiting prosecutors. This is going to destroy public
Speaker 1: trust in America's Department of Justice as a neutral law
Speaker 1: enforcement body. I mean, at some point, perception is going
Speaker 1: to be a serious problem for the rule of law
Speaker 1: in this country when everyone knows you can't take the
Speaker 1: rule of law seriously.
Speaker 3: Yeah, as they destroy they I mean, Trump and his
Speaker 3: cronies destroy our institutions, including the Department of Justice, and
Speaker 3: they are pretty close to having destroyed it. It's not
Speaker 3: going to be so easy that if we defeat them
Speaker 3: to just put it back. We really are going to
Speaker 3: have to rebuild these institutions one by one, and that
Speaker 3: includes the Department of Justice. I love your reference to
Speaker 3: our slogan from last week, which is that Trump has immunity,
Speaker 3: you don't. I had a lot of comments from listeners
Speaker 3: who love that, and we should make t shirts at
Speaker 3: some point. But that's part of the reminder, you know,
Speaker 3: and not just that you might be charged with a
Speaker 3: crime if you're Pambondi. And it looks like some of
Speaker 3: what she did is not just unethical but possibly criminal
Speaker 3: or Pete Hagseth. But you know, for lawyers there's a
Speaker 3: question of disbarment. And so that's one thing that I'll
Speaker 3: continue in the conversation with Preed that you know, you
Speaker 3: might get away with it now, but eventually we're going
Speaker 3: to find out and you might lose your license. And
Speaker 3: if you value being a lawyer or a short term
Speaker 3: moment in the Department of Justice, it might not be
Speaker 3: worth it for you. But that's not how these people
Speaker 3: are calculating it often.
Speaker 1: But when you consider how they chase down the honest,
Speaker 1: hard working prosecutors who went after the terrorists who attacked
Speaker 1: our government and our election on January sixth, I mean,
Speaker 1: I don't think it would be punitive for the Democrats.
Speaker 4: To have a purge.
Speaker 1: Of the purge, a lot of people are going to
Speaker 1: get invited to have their jobs back when the Nuremberg
Speaker 1: trials were all praying for finally happened. But I mean,
Speaker 1: are there any structural safeguards Corey and the DOJ in
Speaker 1: just basic norms that protect against partisan staffing decisions, or
Speaker 1: are those safeguards eroded and they can just hire twenty
Speaker 1: five cash hotels if they want.
Speaker 3: You know, there was a lot of discussion, especially after Nixon,
Speaker 3: about the need for norms, and I think there were
Speaker 3: norms of independence, and we'll talk about that in the
Speaker 3: interview with pre Ways, in which they're really the president
Speaker 3: wasn't even allowed to call somebody to talk to prosecutors
Speaker 3: on the phone, that that was seen as so outrageous
Speaker 3: that it was itself a norm violation. Forget about what
Speaker 3: was said, even to talk to each other. And that
Speaker 3: shows you it's a symbol of this kind of independence.
Speaker 3: The Department of Justice is not supposed to be the
Speaker 3: president's lawyer. They're supposed to be the people's lawyers defending
Speaker 3: our laws. And how badly have those norms eroded. My takeaway,
Speaker 3: and we've talked about this before, but I don't think
Speaker 3: we could talk about it enough, is that it's not
Speaker 3: enough to have norms. When we think about how to
Speaker 3: recover this Department of Justice, that we have to create
Speaker 3: another independent prosecutor who can't be fired by a president,
Speaker 3: who can look into the wrongdoing of a president.
Speaker 2: And yes, through legislation, if.
Speaker 3: We were to bring this back, we would need a
Speaker 3: new law to do this. It was in existence the
Speaker 3: independent prosecutor between Carter and Clinton. Clinton got rid of
Speaker 3: it because he didn't like being investigated by Ken Starr.
Speaker 2: If we bring it back, we should give protection from.
Speaker 3: Firing to allow that independence of investigation of even the president.
Speaker 2: And we should give and.
Speaker 3: This relates to what we were talking about before, the
Speaker 3: ability to even indict a sitting president, and that means
Speaker 3: narrowing community case.
Speaker 1: Okay, but you say, you know, if we get it back,
Speaker 1: I mean, what would it take to restore it? The
Speaker 1: Justice Department's independence has been compromised. I mean what would
Speaker 1: it take to restore it with a president who's not
Speaker 1: capable of wanting that? You know, like day one, you'd
Speaker 1: have to have someone who followed the Epstein Files law
Speaker 1: that was signed in December.
Speaker 3: Yeah, you know, recoveries take time. It's not going to
Speaker 3: happen now. It's not going to happen before the mid terms.
Speaker 3: It might happen, you know, in a new Congress that's
Speaker 3: controlled by not the Republican Party but by Democrats. And
Speaker 3: just to say how it would happen, you know, the
Speaker 3: Department of Justice is structured by legislation, and right now
Speaker 3: there's not a lot of protection of the supposed norm
Speaker 3: of independence, and the norm is gone.
Speaker 2: But you could rewrite the law.
Speaker 3: You could rewrite it so that there is independence of
Speaker 3: the Department of Justice itself, of especially independent prosecutors.
Speaker 2: That idea that did exist in.
Speaker 3: This country was an idea after Watergate that we should
Speaker 3: bring back, and we've got to be creative about that.
Speaker 2: But that's part of the hope.
Speaker 3: You know, on this podcast, we're always talking about the destruction,
Speaker 3: but there's a way to respond to fix the problem
Speaker 3: through legislation, and that's what we're talking about.
Speaker 2: And that's what I think will happen eventually. It will
Speaker 2: take time.
Speaker 3: It's not going to happen, you know, in the next
Speaker 3: few months, certainly, will it happen in the next Congress.
Speaker 2: Possibly. I think that's what we've got to get on
Speaker 2: the agenda. Part of what we're.
Speaker 3: Doing is talking to people, educating them about what's happening,
Speaker 3: but we're also trying to set an agenda for recovery.
Speaker 3: And when we talk to Senator white House, for instance,
Speaker 3: you know, we were able to talk to him about
Speaker 3: the specifics of what this might look like, not just
Speaker 3: ask him questions and we'll continue to do that.
Speaker 1: We have to take a quick break, but when we
Speaker 1: come back, it is happening. It is on Corey Bretschneider
Speaker 1: and pret Burrara. You don't want to miss this. This
Speaker 1: is the Oath in the Office.
Speaker 8: Hey all, Glenn Kirshner here, So friends, I hope you'll
Speaker 8: join me on my audio podcast, Justice Matters. Do you
Speaker 8: care about ethics and government, criminal justice, reform, a conflict
Speaker 8: free federal judiciary?
Speaker 7: I thought so.
Speaker 8: On Justice Matters, we take on issues involving the need
Speaker 8: to reform our government and its institutions, and we talk
Speaker 8: about real.
Speaker 7: Achievable reform. I hope you'll join us.
Speaker 8: Look for Justice Matters wherever you usually get your podcasts.
Speaker 3: Welcome back to the Oath in the Office. I'm Corey Bretschneider.
Speaker 3: Today it's my pleasure to be joined by Prete Burra,
Speaker 3: the host of the podcast Stay Tuned with Preed. It
Speaker 3: was my pleasure to be on that podcast with Prete
Speaker 3: and to do a live event with him at the
Speaker 3: New York Historical Preed, of course, is the former US
Speaker 3: Attorney for the Southern District of New York. He's a
Speaker 3: former Justice Department official, and he also teaches at NYU
Speaker 3: Law School in addition to his law practice.
Speaker 2: Pre I want to start with the DOJ.
Speaker 3: You've been inside that institution at a very different time
Speaker 3: in our history. And while I should say first welcome.
Speaker 7: And nice to be here, Corey, thanks for having.
Speaker 3: Me, real pleasure to have you so as always saying,
Speaker 3: I mean, you've been inside the Department of Justice, but
Speaker 3: it was a very different Department of Justice when you
Speaker 3: were there. And I'm just hoping that we could start
Speaker 3: by orienting listeners and getting some of your thoughts about
Speaker 3: the difference between the DJ that you were a part
Speaker 3: of and what you're seeing right now.
Speaker 7: So I was hired into the department as a young
Speaker 7: prosecutor in the Bush administration, and there was no litmus
Speaker 7: test for politics, and you weren't asked if you support
Speaker 7: the particular president, and you weren't asked who won the
Speaker 7: last election, and nobody asked you your party affiliation, your ideology,
Speaker 7: or anything else. And that is how it should be.
Speaker 7: And when I was US attorney for almost eight years,
Speaker 7: appointed by Barack Obama, I was a political appointee. But
Speaker 7: all the assistant US attorneys we hired, the prosecutors and
Speaker 7: the civil lawyers we hired. We hired without any attention
Speaker 7: to or inquiry about their political affiliation, their party affiliation,
Speaker 7: or their ideology. What mattered was do they have good judgment,
Speaker 7: do they have good character? Do they practice their craft well?
Speaker 7: And no doubt under Republican presidents the Democratic presidents, you know,
Speaker 7: many people are independent, but you know, hired into the
Speaker 7: ranks of the Justice Department were many people of opposing
Speaker 7: and different points of view, but that did not matter.
Speaker 7: Didn't matter. That seems to matter today. So that's point one,
Speaker 7: and that's a terrible thing. Point two is, you know,
Speaker 7: we had a pretty full Justice Department, most US attorney's
Speaker 7: offices as well as the main office in Washington, you know,
Speaker 7: the what we call Main Justice, you know, other than
Speaker 7: on those occasions when there was a budget freeze or
Speaker 7: you know, hiring freeze or a government shutdown, operated at
Speaker 7: full capacity because you needed that to vindicate the rights
Speaker 7: of victims, to maintain public safety, and to do the
Speaker 7: job of justice. We now have, as I was talking
Speaker 7: about on my own podcast just a couple of hours ago,
Speaker 7: a fleeing of massive numbers of line prosecutors, some of
Speaker 7: them being fired, some of them being relieved of their
Speaker 7: duties from US attorney's offices all around the country and
Speaker 7: from the Washington office in the district of Minnesota itself,
Speaker 7: which is the scene of a lot of you know,
Speaker 7: terrible things and government overreach. They've gone from an office
Speaker 7: of fifty I think, to twenty, which, if I'm doing
Speaker 7: the math correctly, the sixty percent decrease. We used to
Speaker 7: fight for every single full time employee allocation in budget
Speaker 7: with our lives because it was so important everyone had
Speaker 7: a full docket. But more troubling than the lack of
Speaker 7: staff and the diminution of the ranks of prosecutors is why, right,
Speaker 7: you have people who were hired, you know, some of
Speaker 7: them many many years ago, served multiple administrations. We're screened
Speaker 7: not only for talent and craft and legal competency, but
Speaker 7: also for character and integrity and ethics. Who are leaving
Speaker 7: because they think they're being asked to do things that
Speaker 7: are contrary to their oath and contrary to their conscience,
Speaker 7: and that's why they're leaving, and that's that's a terrible
Speaker 7: and heartbreaking thing. And the American so I can go,
Speaker 7: I could go on and on an onion.
Speaker 2: I mean, what do you think of the on that theme.
Speaker 3: And you know, one of the stories that we've been
Speaker 3: talking about is the coverage about how hard it is
Speaker 3: to even do recruitment in the Department of Justice now
Speaker 3: that it used to be.
Speaker 7: It used to be the In fact, you never saw.
Speaker 7: I think people are tweeting about openings of the Justice
Speaker 7: Department there. I don't know if they're a billboard, but
Speaker 7: there used to be a billboard.
Speaker 2: Like one eight hundred lawyer.
Speaker 7: It was the most coveted I still like printages prestigious,
Speaker 7: most coveted jobs. I mean, people would leave highly lucrative
Speaker 7: private practice for the opportunity to serve at a government's wage
Speaker 7: in the Department of Justice, at various US Attorney's offices.
Speaker 7: You know, I recruited back people who took people who
Speaker 7: were in the office, and then I needed, you know,
Speaker 7: a leadership position filled and people will I mean, who
Speaker 7: does this in life? People took ninety five percent pay cuts,
Speaker 7: people making two three four million dollars a year came
Speaker 7: back for one hundred and fifty thousand, right so they
Speaker 7: could serve the who leaves millions of dollars on the
Speaker 7: table for a job, you know, in the government. Some
Speaker 7: people do it, not not many people do.
Speaker 3: I mean, do you think that you know, part of
Speaker 3: the story, of course, that we're talking about and that
Speaker 3: you're discussing is the increasing lack of competence in the DOJ,
Speaker 3: because if you're not able to recruit high quality people, you're.
Speaker 2: Going to wind up with worse lawyering. I'm wondering how
Speaker 2: that plays out.
Speaker 3: I mean, is one possibility that there's a I'm always
Speaker 3: looking for the hopeful story that in some ways, although
Speaker 3: there's a kind of destruction of the Department of Justice
Speaker 3: in its main functioning, that when it comes to some
Speaker 3: of the ambitions of Donald Trump to destroy democracy, I mean,
Speaker 3: does that in some ways protect us having more incompetent
Speaker 3: lawyers in the Department of Justice?
Speaker 2: Is that too optimistic? That can still do damage and
Speaker 2: be incompetent.
Speaker 7: Well, they can do both. They can do both in Garden.
Speaker 7: It still is the case, Corey that the garden variety
Speaker 7: cases that offices deal with are not about Donald Trump,
Speaker 7: not about Michael Flynn, They're not about Hunter Biden, They're
Speaker 7: not about Jeffrey Epstein, right, They're about you know, unnamed
Speaker 7: and and unfamous victims and perpetrators who are brought to
Speaker 7: justice every day in the various offices. So their lack
Speaker 7: of resources is a problem. Their lack of competence is
Speaker 7: a problem, because the wheels of justice already, I think
Speaker 7: per many people grind slow, and they only grind more slowly. Now,
Speaker 7: with respect to those those certain politicized, weaponized cases, you
Speaker 7: were exactly you were exactly right. They may be an ethical,
Speaker 7: they may be you know, weaponizing, but they're also incompetent.
Speaker 7: And you saw that in New Jersey, and you saw
Speaker 7: that in Virginia, and you see that in a lot
Speaker 7: of places. So I guess that's sort of a silver lining.
Speaker 7: You have people who don't even know how to present
Speaker 7: to a grand jury indicting a former FBI director. That's
Speaker 7: probably to everyone is benefit.
Speaker 3: I want to ask you more about the weaponization the
Speaker 3: political prosecutions, but I have a follow up on the
Speaker 3: interesting theme that you're carving out, which is I want
Speaker 3: you to react to. There's a theory that law professors
Speaker 3: are increasingly embracing of a kind of dual regime, that
Speaker 3: there's a kind of lawlessness. The theory which goes back
Speaker 3: to a theory of fascism and various ideas of dictatorship.
Speaker 3: That there's a theory that says, when it comes to
Speaker 3: the dictator, there's lawlessness, but you still might have a
Speaker 3: normal functioning rule of law state in relation to normal people.
Speaker 2: But in a way I hear you saying maybe the.
Speaker 3: Opposite, which is that you know, actually exactly where we
Speaker 3: want the rule of law to function, prosecutions of the
Speaker 3: bad guys, of those who have committed serious violent crimes,
Speaker 3: that maybe there we're lacking the kind of competence that
Speaker 3: we need even for the rule of law.
Speaker 2: So I don't does it go too far to say that, really, I.
Speaker 7: Think you look at some it's look, prosecutors do two
Speaker 7: things roughly right. And this is actually car doubt in
Speaker 7: law and order the first half hour and second etat right,
Speaker 7: and unlike law and order makes out where it's only
Speaker 7: the law enforcement agents who carry guns do the investigation.
Speaker 7: Prosecutors do the prosecuting and the trial work. I believe
Speaker 7: in the federal system they do. The prosecutors do both.
Speaker 7: And so if you have limited resources, what are the
Speaker 7: things that you urgently have to deal with? You have
Speaker 7: to deal with already indicted cases of defendants who are
Speaker 7: already in the dock, right, So you've indicted a case,
Speaker 7: there's a suppression hearing in a week. The judge has
Speaker 7: ordered everyone to show up and to have here. You
Speaker 7: have to do that hearing, right, you have to have
Speaker 7: And so if both prosecutors on the case resigned the
Speaker 7: week before, you got to find a new prosecutor get
Speaker 7: up to speed, right a way. You have to do
Speaker 7: that because as a court proceeding and humans have to
Speaker 7: show up and do the work. The things that are
Speaker 7: not on the same timetable are investigations. So let's say
Speaker 7: you have three prosecutors working with three FBI agents to
Speaker 7: root out corruption in the state capital of a state.
Speaker 7: You know that deadline is just a statue of limitations, right,
Speaker 7: And so that might be the most important thing going
Speaker 7: on in the office, not the garden variety case that
Speaker 7: has a suppression hearing the following week, but chasing down
Speaker 7: witnesses before they destroy evidence, before they get rid of
Speaker 7: their ill gotten gains. But that's what's not going to
Speaker 7: get done because that's not what where you need humans necessarily,
Speaker 7: because it's not a suppression hearing that's been scheduled on
Speaker 7: the docket. You know what I'm saying so so lots
Speaker 7: and lots of and people don't see it right away,
Speaker 7: but there's an opportunity cost when you pick one thing
Speaker 7: versus another thing. Yeah, and that's what you worry about.
Speaker 3: Yeah, And of course the worry is that the incompetence
Speaker 3: of the DOJ isn't just short term, that even if
Speaker 3: we survive this Trump presidency, there might be long term damage,
Speaker 3: and the damage might go beyond the immediate political prosecutions
Speaker 3: to more general harm to the system of justice. I
Speaker 3: did want to pivot to ask you about the political prosecutions,
Speaker 3: of course, and I'm interested you mention in James Comy
Speaker 3: and Letitia James.
Speaker 2: I mean, I'm interested in your thoughts.
Speaker 3: They seem to me at least to be raw instances
Speaker 3: of political prosecutions by prosecutors who are choosing loyalty over So.
Speaker 2: Yeah, it was my first question. Am I missing anything?
Speaker 3: I mean, the more complicated case and maybe more interesting
Speaker 3: one to get into is the Bolton case. And you know,
Speaker 3: there is an argument that there it's more of at
Speaker 3: least a hybrid. Clearly there is an element of retaliation,
Speaker 3: but the argument is that there really were national security
Speaker 3: issues that he might have acted in a criminal way,
Speaker 3: and so I wonder I mean that to help us
Speaker 3: puzzle through that. I mean, what do you do when
Speaker 3: there is some element of law breaking, but there also
Speaker 3: is this political motivation?
Speaker 2: How do you analyze that case?
Speaker 3: I mean, I'm interested, of course in your thoughts on
Speaker 3: Komy and James as well.
Speaker 7: So sometimes it's hard to figure this out, particularly for
Speaker 7: your late person. It's also hard to figure out if
Speaker 7: you're not involved in the case and you have prosecuted experience,
Speaker 7: so you have certain ndisha whether something as kosher or
Speaker 7: not right. One indicator is whether or not And this
Speaker 7: is not a question that had to be asked before.
Speaker 7: Did the President of the United States post on social
Speaker 7: media flatly his interest in sending it a prison, perhaps
Speaker 7: to the death penalty, which he's done with certain people,
Speaker 7: and pronounced you guilty. That's a marker that any prosecution
Speaker 7: that follows is bs and is weaponized. Second thing you
Speaker 7: can look at are the charging documents themselves. You read
Speaker 7: it like if you read the Bolton indictment. And I've
Speaker 7: read a lot of indictments, and my name is affixed
Speaker 7: to hundreds of indictments that have been filed in court,
Speaker 7: it has a certain theft. There are certain things in
Speaker 7: there that you think, huh, I wonder how he's going
Speaker 7: to defend against this not pre judging is presumed innocent,
Speaker 7: and there may be defenses, and there may be. It's
Speaker 7: one side of the story, but it's quite a story
Speaker 7: of his sharing information with members of his family for
Speaker 7: purposes of writing a book that are clearly classified. You know,
Speaker 7: I don't know how that's going to work out. But
Speaker 7: you read it and you don't think it's trash. Then
Speaker 7: you read the coffee indictment and you think that's trash.
Speaker 7: Then the third indicator for outsiders, I think, and then
Speaker 7: maybe others is you know, who else was involved in
Speaker 7: the decision making outside of the people who were beholden
Speaker 7: to the guy who posted the truth social send these
Speaker 7: people to prison. And in the case of Bolton, again
Speaker 7: it's not just positive at all. There was a search
Speaker 7: executed and that search was authorized by a court, So
Speaker 7: there was the intercession of a court. That just gives you,
Speaker 7: you know, one data point that somebody found outside of
Speaker 7: the executive branch found there to be some support, probable
Speaker 7: cause support which is substantial that a crime was committed,
Speaker 7: right On the other hand, in the James James case
Speaker 7: in particular, the first indictment was dismissed. Then we understand
Speaker 7: from reporting they went to a grand jury. No true,
Speaker 7: Bill rejected the indictment. They went to a grand jury again,
Speaker 7: which by the way, is like unheard of and contrary
Speaker 7: to policy. So you have a dismissal by a judge.
Speaker 7: So you have the truth social getter. She happens to
Speaker 7: be a political adversary perceived by the president to biblical
Speaker 7: adversary of the president. You have a dismissal of the indictment.
Speaker 7: Then you have one grand jury said no way. You
Speaker 7: have a second grand jury that said no way. You
Speaker 7: don't have to be Clarence Darrow or his or his
Speaker 7: prosecutorial analog to think something's rotten in Denmark.
Speaker 3: Yeah, I mean, but what's your bottom line on the
Speaker 3: Bolton case working through that?
Speaker 2: And I wasn't because.
Speaker 7: The bottom line, but I'm just saying, look.
Speaker 3: Yeah, because well, I guess my thought is, and we
Speaker 3: could abstract from the details, but I guess my thought is,
Speaker 3: even if the way you still.
Speaker 7: Sorry, yeah, it is still the body of law that
Speaker 7: exists about Melissia's and selective prosecution. Yeah, and where people
Speaker 7: have won on those motions, have not one on the
Speaker 7: basis of innocence, right, They've won on the basis of
Speaker 7: selectivity and maliciousness.
Speaker 2: Right.
Speaker 7: So it is not necessary. It's a tough uphill road
Speaker 7: in any case where you bring such a suit or
Speaker 7: such a challenge, but it is not bound up with
Speaker 7: your innocence. Right if you happen to be innocent, right
Speaker 7: to have the ability to show that there's no harmful
Speaker 7: evidence against you, that bolsters your argument that it was
Speaker 7: malicious and selective, because why are you going after somebody
Speaker 7: who's innocent? But it is not necessary, no.
Speaker 3: Right, Yeah, interesting, And I mean I see the point,
Speaker 3: which is that in the Bolton case, even if it's
Speaker 3: true that there are all sorts of indicators that there
Speaker 3: really is guiltyre the fact that Trump has targeted him,
Speaker 3: that might turn out to be the thing that makes
Speaker 3: the difference here in whether or not this is or
Speaker 3: is not a selective prosecution, even if he is guilty.
Speaker 7: Yeah.
Speaker 3: I wanted to pivot pre to a question that's on
Speaker 3: a lot of people's minds, and it's the question of
Speaker 3: what those in the dog should do. The career lawyers
Speaker 3: I'm thinking about when it comes to the question of
Speaker 3: resign or stay. Of course, in Minnesota, we've seen a
Speaker 3: number of resignations connected to the ICE's role there to
Speaker 3: questions of going after even one of the victim's partners.
Speaker 2: So I mean, how do you see that?
Speaker 3: What kind of advice would you give to a member
Speaker 3: of the Department of Justice. Now, I mean, I'd invite
Speaker 3: you too, to reflect on your own famous controversy where,
Speaker 3: of course you decided not to resign during the first
Speaker 3: Trump administration as a matter of principle, and we're ultimately
Speaker 3: fired in Trump one point zero by Trump.
Speaker 2: And if that's a lesson in any way in any
Speaker 2: of this.
Speaker 7: It's very difficult, you know, and my view on this
Speaker 7: has evolved, and it depends on the particular circumstances you
Speaker 7: find yourself. And so if you're the problem is if
Speaker 7: you are involved in a particular, specific, concrete matter, and
Speaker 7: you've been given a directive to do something, let's say,
Speaker 7: pursue indictment or you know, dismiss a case you thought
Speaker 7: was a righteous case. You're not the turney in the
Speaker 7: United States. You know, there's a chain of command. You
Speaker 7: can either do the thing that you think is wrong, unethical, immoral, unlawful, unconstitutional, that,
Speaker 7: by the way, this is not a small thing, may
Speaker 7: put your bar license in jeopardy at some point in
Speaker 7: the future. You kind of don't have the option of
Speaker 7: doing the thing that you think is correct. You kind
Speaker 7: of have no choice but to step down. If you
Speaker 7: are the head of the office and you insist on
Speaker 7: taking a particular action, which you can do right, then
Speaker 7: you can force your firing, which I'm partial to, I'm
Speaker 7: partial to making people fire you on their grounds which
Speaker 7: can be seen to be you know, false or fraudulent
Speaker 7: or improper, rather than giving them a bye. But you
Speaker 7: really kind of have no choice. Then there's a more complicated,
Speaker 7: i think region in which you're kind of, you know,
Speaker 7: in a position of authority somewhere in the Justice Department.
Speaker 7: No one has asked you to do a particular, concrete
Speaker 7: things that goes against your conscience or your oath or
Speaker 7: the law as you understand it. But there's you know, overall,
Speaker 7: but people around you are doing those things. And in
Speaker 7: that situation, it's the same moral dilemma that has been
Speaker 7: faced by lots of including you know, chiefs of staff
Speaker 7: in the Trump White House, in the first term and
Speaker 7: in the second term, which is, if I leave, someone
Speaker 7: with less ethics and less morality and less integrity is
Speaker 7: going to take my spot. So I should fight for
Speaker 7: what I can fight for here. And I increasingly don't
Speaker 7: buy that. I think it depends on well, it sounds
Speaker 7: all well and good, but you're tainting yourself and yourself
Speaker 7: and complicity is bad, and you're enabling things. No doubt,
Speaker 7: it's true. You have somebody who you know. There are
Speaker 7: people who've been in the Trump orbit, including Jeff Sessions
Speaker 7: and Bill Barr, who were not paragons of virtue in
Speaker 7: my book as attorneys general, but they had lines right,
Speaker 7: They had some lines right, And every time somebody with
Speaker 7: some lines steps away or gets removed, somebody with fewer
Speaker 7: lines or no lines can take their place. Yeah, so
Speaker 7: this is no you're the professor.
Speaker 2: I mean, it seems to me.
Speaker 7: I'm just trying to show my work. I don't know, Yeah,
Speaker 7: trying to be thoughtful about this. It's just a really
Speaker 7: tough thing. And there are arguments in favor of staying,
Speaker 7: the arguments in favor of going. As more time goes by,
Speaker 7: I tend to favor going.
Speaker 3: Yeah, and if it's just a matter of conscience. I mean,
Speaker 3: this is just fitting with your thought process.
Speaker 2: Here.
Speaker 3: More and more we have people around who seem to
Speaker 3: have no conscience. And when I look at Pambondi, it's
Speaker 3: not just unethical behavior, but I imagine some of it
Speaker 3: might be even criminal. I don't know if you think
Speaker 3: that goes too far. And then over time, as the
Speaker 3: people of conscience over two terms have resigned, what we're
Speaker 3: left with our loyalists who seem to have no line.
Speaker 2: So I wonder how relevant any of this advice becomes.
Speaker 3: Then if if it's pure loyalists who don't even have
Speaker 3: the kind of conscience and you know, careful you also
Speaker 3: of course teach or a professor professorial way of seeing
Speaker 3: this dilemma.
Speaker 7: Yeah. Look, the arrival of Donald Trump on the scene
Speaker 7: has put a spotlight on some people who have courage.
Speaker 7: But sadly, I think the record reflects that it shows
Speaker 7: a lot more people about whom you didn't you think
Speaker 7: of what their moral fiber was or the makeup of
Speaker 7: their spine was, who don't have courage and like to
Speaker 7: hold onto power. I mean, for me, you know, it's
Speaker 7: interesting you talked about my controversy. My sin, it sounds
Speaker 7: so quaint now, was determining that as the independent, somewhat
Speaker 7: independent United Attorney and the Southerners good New York, that
Speaker 7: I shouldn't speak to the sitting president of the United
Speaker 7: States who had called and left a message, that I
Speaker 7: shouldn't speak to him without knowing what the nature of
Speaker 7: the call was, given my jurisdiction over various of his
Speaker 7: properties businesses, the appearance of impropriety, especially when that call
Speaker 7: was not made under the auspices of some you know,
Speaker 7: program or policy, and Jeff Sessions wasn't involved. And I
Speaker 7: never said that I wouldn't talk to the president in
Speaker 7: any circumstance. But you know, my integrity told me, and
Speaker 7: my training told me, and the example of the REDA. Lynch,
Speaker 7: the former Attorney General on the tarmac with Bill Clinton,
Speaker 7: all told me don't talk to the president, and twenty
Speaker 7: hours later I was told to step down, as were others.
Speaker 7: But I'm positive there's a link between my refusal to
Speaker 7: talk to the president and my being asked to step down.
Speaker 7: How quaint is.
Speaker 2: That, Yeah, can even imagine that?
Speaker 7: And that was the best job, Yeah, you know, I
Speaker 7: loved the job so much and thought it was such
Speaker 7: an important position to have. I didn't vote for Donald Trump.
Speaker 7: I didn't have respect for him as a politician, but
Speaker 7: I accepted his offer to stay on because I thought
Speaker 7: I would be left alone in the sovereign District of
Speaker 7: New York to do my work and not to pat
Speaker 7: myself in the back. And I lost my Job's fine,
Speaker 7: I'm thriving here. I am with you, right and and
Speaker 7: there's so many people who can't.
Speaker 3: Allow it's not that great that you want to be there,
Speaker 3: no matter what I mean. I think too, it's an
Speaker 3: illustration of the difference between the world. I mean almost
Speaker 3: a historical document of the world in which the way
Speaker 3: the DOJ the way US attorneys thought about the dilemmas
Speaker 3: that they faced, and the independence of the Department of Justice,
Speaker 3: and what those worms meant. Then when you look at
Speaker 3: Pam BONDI now essentially taking commands from the President of
Speaker 3: the United States to go after his enemies, I mean,
Speaker 3: you couldn't even imagine to step.
Speaker 7: Down, have some integrity, have some pride, and just get
Speaker 7: the hell out of Dodge. I don't get it. Look,
Speaker 7: you know you have law firms who caved for no reason,
Speaker 7: for no reason, and we're all very nice and polite
Speaker 7: about it. My law firm had an executive order issued
Speaker 7: against it. We went to court. Yeah, we're one of
Speaker 7: four law firms Wilmer Hale. I'm very proud of that.
Speaker 7: And you know, I don't mean to be overly dramatic,
Speaker 7: and I'm not, but what I leave these environs one day.
Speaker 7: You know, ultimately, I'm proud of the fact that I
Speaker 7: didn't talk to the president. I'm proud of the fact
Speaker 7: that I wanted to affirm that went to court. And
Speaker 7: one like, you know, more people should want to do that.
Speaker 7: More people should want to have that be the thing
Speaker 7: that their associations are are known for and that their
Speaker 7: own personal conduct is known for. And again I don't
Speaker 7: mean to get in my high horse, but I just
Speaker 7: don't get it. For a little bit of power for
Speaker 7: a little bit longer, it's not worth it. Yeah.
Speaker 3: And also when you think about the fact that this
Speaker 3: regime will end one day and the unethical behavior, the crimes.
Speaker 3: You know, as we've been saying on this podcast, Donald
Speaker 3: Trump might have lots of criminal immunity, but you know,
Speaker 3: average officials might not.
Speaker 2: And so here's the case.
Speaker 3: Certainly they don't have ethical immunity, and they don't have
Speaker 3: immunity from Here's.
Speaker 7: What they're going to say. You know, they're going to say, Look,
Speaker 7: I was a tempering influence on the president. I was
Speaker 7: a tempering influence in that administration. If it wasn't me,
Speaker 7: it was going to be somebody wh And here, you know,
Speaker 7: you don't know this, but behind the scenes, here are
Speaker 7: the things that I did. I sidelined this bad guy,
Speaker 7: I fired this other bad guy. I prevented this other
Speaker 7: weaponized prosecution. But meanwhile, you are complicit in lots of
Speaker 7: other bad stuff. And you know, I don't know that
Speaker 7: I trust a person who wants to stick to their
Speaker 7: job so at only to make the judgments about, you know,
Speaker 7: which things were appropriate to let slide and which things
Speaker 7: were good not to let slide. But that's what they're
Speaker 7: all going to say when they come out. They're going
Speaker 7: to launder themselves, and we should not permit them to
Speaker 7: get laundered.
Speaker 3: Yeah, exactly. I mean you've started answering my last question.
Speaker 3: This has been an amazing and in depth and honest
Speaker 3: conversation preed and I like the idea too that in
Speaker 3: some ways the usual professorial model of resign or not,
Speaker 3: and questions of conscience really have shifted as we're facing
Speaker 3: the threat of well, as I see a dictatorship, and
Speaker 3: the question of whether you want to be complicit in
Speaker 3: the destruction of American democracy seem looks different than the
Speaker 3: questions of conscience might have in previous presidencies. I mean,
Speaker 3: we've talked about some you know, worrying things pre and
Speaker 3: we're always looking for hope on the oath in the
Speaker 3: Office podcast. So that's my last question, I mean, where
Speaker 3: can we find it?
Speaker 7: Well, look, it's we find it where I began in
Speaker 7: talking about a few minutes ago, when I said the
Speaker 7: advent of the Donald Trump administration, particular the secondministration, I
Speaker 7: focused on one of the two things. I focused on
Speaker 7: the negative in my answer, and the negative is that
Speaker 7: you find people who have no scruples, who want to
Speaker 7: hold on to power, who want to hold on to
Speaker 7: their prestigious position or get a prestigious position. But then
Speaker 7: you do find people who are courageous and will fight
Speaker 7: against the tide in their own party. You know, Liz
Speaker 7: Cheney is one of those people. I think Marjorie Taylor
Speaker 7: Green is one of those people I think I mentioned already.
Speaker 7: I think the four law firms have fought when so
Speaker 7: many didn't and were told that they were going to
Speaker 7: perhaps cease as going concerned. The law firms have been
Speaker 7: around for decades or hundreds or hundred years. You know,
Speaker 7: they took a lot of risk and they did those things.
Speaker 7: The people of Minneapolis, who by dint of I think
Speaker 7: protesting honorably and peacefully and not giving, you know, the
Speaker 7: other side an excuse of overreaction to then be more
Speaker 7: violent and say, see, these killings you thought were unjustified
Speaker 7: were justified because we now have an unruly mob and
Speaker 7: these people are savages and they've been called worse things
Speaker 7: by President Trump. Whenever bad things happen, you see two
Speaker 7: things go on, right, You see some people who go
Speaker 7: along with it because they think that's the way to be,
Speaker 7: and you see people who defy it. And so I
Speaker 7: always draw inspiration and hope from the people who defy
Speaker 7: when it's most difficult to do so, when it's most
Speaker 7: perilous to do so. And there are lots and lots
Speaker 7: and lots of those people, and we should hold them
Speaker 7: up and hoist them up and try to find ways
Speaker 7: to join them.
Speaker 3: Yeah, I mean, ethics might look different at this moment
Speaker 3: and what the right thing to do is. But one
Speaker 3: of the things that I've gotten from this conversation, it's
Speaker 3: been such a pleasure to have this in depth conversation
Speaker 3: with you, is that you know, it's especially in the
Speaker 3: most dire times that we need to think about questions
Speaker 3: of ethics and that looking for heroes and looking for
Speaker 3: those people of virtue and so preed.
Speaker 2: Thanks for joining us.
Speaker 7: And thanks you. Great conversation, total pleasure again, great to
Speaker 7: see you.
Speaker 2: Thanks for joining us.
Speaker 1: Wow, I want to thank pree Berarra for sitting down
Speaker 1: with Corey.
Speaker 4: That was great.
Speaker 1: Corey, this is a guy who's been on the front
Speaker 1: line since the first year of Trump's first term, and
Speaker 1: it's so amazing to see how he is still fighting
Speaker 1: for the.
Speaker 2: Rule of law.
Speaker 3: Yeah, when you and I first met, it was around
Speaker 3: the time he told the story about how he decided
Speaker 3: to refuse to resign to force Trump to fire him
Speaker 3: in order to get on the table the corruption that
Speaker 3: was at the heart really of Trump's regime, and that story,
Speaker 3: you know, is one of the.
Speaker 2: Ones that we talked about.
Speaker 3: So to get to talk to him in depth about
Speaker 3: what happened and his thoughts about Department of Justice.
Speaker 2: And dependence, and also to end on the hopeful note, to.
Speaker 3: Talk about ethics and the importance of ethics, especially in
Speaker 3: the midst of this attempted dictatorship, and finally to get
Speaker 3: his ideas about hope and that theme of the oath
Speaker 3: in the Office podcast that we always come back to
Speaker 3: that yes, it's a dark moment, but we will recover.
Speaker 3: He was an exceptional guest. We'll have him back, and
Speaker 3: what a pleasure to have him. What a pleasure of course,
Speaker 3: as always John, to speak to you every week.
Speaker 1: Well, and I thank you, Corey. There's no one I'd
Speaker 1: rather spend multiple constitutional crises, because we're way beyond constitutional conflicts.
Speaker 1: We're in multiple juggling constitutional crises with live chainsaws. And
Speaker 1: I mean, I gotta say, like, really, it is the
Speaker 1: judiciary that's the primary bulwark against this overreach. I mean,
Speaker 1: God bless all the good people marching in the streets,
Speaker 1: But it ain't the press right now that's doing it.
Speaker 1: And it sure ain't Congress that's doing it. I mean,
Speaker 1: these other institutions are supposed to play equal or greater roles,
Speaker 1: but it really is the judiciary.
Speaker 4: If you had a.
Speaker 1: Chance to tell everyone in America about what's at stake
Speaker 1: legally and constitutionally in these conflicts for the months ahead,
Speaker 1: what would it be.
Speaker 3: Well, John, I mean, I wish I could say that
Speaker 3: we could look at each of these conflicts, and you know,
Speaker 3: there's a question about search and seizure and ICE ignoring it.
Speaker 3: There's a question about the Tenth Amendment and ICE ignoring it.
Speaker 3: There are the questions about extortion that we talked about
Speaker 3: at the beginning of the podcast, and political prosecutions that
Speaker 3: I talked about with pre But really, I think it's
Speaker 3: a mistake to just see these as isolated things. The
Speaker 3: thing that really is at stake is our democracy and
Speaker 3: the threat that the presidency, which is supposed to be
Speaker 3: bound by the rule of law, might be used to
Speaker 3: destroy democracy itself. It's something that the anti federalists worried about,
Speaker 3: that the founders were aware of, and wow, it really
Speaker 3: might happen. And I don't want to hide from that.
Speaker 3: That's what we're showing every week. But I also don't
Speaker 3: want to hide the hope because we are fighting back,
Speaker 3: and I do think that in the end, the fact
Speaker 3: that we're fighting that there is a constitutional crisis, that
Speaker 3: we haven't given up, that there's a crisis at all,
Speaker 3: not subjugation, that that's where the hope comes from.
Speaker 1: Well, I want to just thank you Corey for just
Speaker 1: helping us navigate this extraordinary moment where legal norms and
Speaker 1: constitutional order and political power are intersecting in ways that
Speaker 1: Civics class it didn't prepare us.
Speaker 4: And thank you for knowing all the bad bunny lyrics too.
Speaker 1: What is the best way for our listeners to follow you,
Speaker 1: professor and keep up with your work the other six
Speaker 1: days of the week.
Speaker 3: Well, we have a great newsletter on substack, so subscribe there.
Speaker 3: You can listen to us on any of the places
Speaker 3: that you get podcasts, and I urge you to continue
Speaker 3: to leave reviews. We've got almost all five star reviews
Speaker 3: on the various platforms. On Spotify, we have more than
Speaker 3: five hundred and twenty on Apple, and of course we
Speaker 3: continue to be in that top five.
Speaker 2: We were four last week.
Speaker 3: We continue to climb on Apple Government Podcasts and continue
Speaker 3: to tell people about it. The reason we're growing is
Speaker 3: we don't have a huge advertising budget. We do some
Speaker 3: sharing of ads, but it's really people telling their friends,
Speaker 3: so keep doing that.
Speaker 2: We like this podcast.
Speaker 3: Tell your friend to listen and become aware of what's
Speaker 3: happening in this democracy and the threat to it.
Speaker 7: Right on.
Speaker 1: I want to thank Wendy and Beowulf and everyone helps
Speaker 1: us put the show together. I want to thank all
Speaker 1: of our listeners are being so brilliant and so deeply attractive,
Speaker 1: and most of all, I want to thank you Corey
Speaker 1: for making me feel a little bit smarter, a little
Speaker 1: bit braver every week. You can hear me every night
Speaker 1: on Serious XM Progress Channel one twenty seven. If you
Speaker 1: don't have Serious XM, we're a free podcast called the
Speaker 1: John Fiegelsang Podcast. I have a substack too, and my
Speaker 1: book is called Separation of Church and Hate, A sane
Speaker 1: person's guide to take it back to the Bible from
Speaker 1: fundamentalist fascists and block pleasing a prauge, Corey, I feel
Speaker 1: better about my crumbling democracy already. Thank you, and we'll
Speaker 1: see you guys next time on the Oath in the Office.