Speaker 1: And we are back with another edition of the Federalist
Radio Hour. I'm Matt Kittle, Senior Elections correspondent at the
Federalist and your experienced Shirpa on today's quest for Knowledge.
As always, you can email the show at radio at
the Federalist dot com. Make sure to subscribe wherever you
download your podcast, and of course to the premium version
of our website as well. Our guest today is former
federal prosecutor John O'Connor, author of Postgate Now The Washington
Post Betrayed Deep Throat, covered up Watergate, and began today's
partisan advocacy of journalism, and host of the Mysteries of
Watergate podcast. He served as an assistant us AT twy
in northern California, representing the United States in both criminal
and civil cases. Today we're talking about the federal judges.
It seems dancing all over the executive branch. Good morning, sir,
Thank you for joining us at the Federalist Radio Hour.
Let us begin there, if you would please, because I
think what we're seeing today feels unprecedented. It feels certainly
like an abusive power. We have seen a lot of
executive orders coming out from President Donald Trumps. That is
definitely his domain. I don't think there's any argument about that.
The argument, though, is from these federal judges who say
he does not have the authority. And whether it be
executive orders on DEI or immigration, you name it. Is
this a rogue judiciary we're seeing today your estimation.
Speaker 2: It's not intentionally rogue. It is society has developed an
activist judiciary. No one has tried to put a stop
to it, and there's not been much intellectual thrust against it.
And so I think an intelligent judge like Judge Boseburg,
probably left leaning, believes in the power of the gavel
and the judicial branch and is unwittingly going further than
he should. I think he's acting in good faith. But
let me tell you what I think the overall problem
is in our thinking. Some of this is just the
way the left thinks about things. That our major concern
should be the poor, the downtrodden, or the people who
are being marginalized, so to speak, and we have to
protect them. And the problem with that is, at some
point the larger body politics suffers. You can only extend
so many rights to so many, again marginalized people like
illegal immigrants, that the whole body politics suffers and we're
doing things that we really shouldn't do that are really
not appropriate. Let me give you an example here with
this Judge Boseburg case with the deportations to El Salvador.
If a person crosses the river the Rio Grande and
the mortar patrol immediately catches him. Nobody would have any
objections to the fact that you take him by the collar,
waight across the river and shove him back over to Mexico.
Nobody would say that's wrong. You don't have to have
a judge, don't have to have a due process hearing,
you know, you know, give him some soup and you know,
put him in a nice place and wait for the
judge to hear his case. You don't need to do that,
and nobody would have any problem with that. You know,
there's not really any right to do process because due
process is about taking something. Due process applies to every
person in the United States person. But the question is
are you depriving somebody of something liberty or property without
due process. In the situation I talked about, there's no
liberty or property that that person has a right to,
and therefore there really isn't much in the way of
due process. Do him. But here's what happens. Now that
same person stays over here for two years, gets away
from the authorities, and now you try to do the
exact same thing, take them and throw them across the river,
so to speak. And now all of a sudden, oh gee,
then we have to give him process. So it's well meaning.
I think it really is well meaning. The perfect is
the enemy of the good. Perfect due process and a
perfect system where everybody gets their trial, everybody gets their
day in court, just is not practical and it's not
really required in my view by the Constitution, you know,
decurate non minimis or whatever. It's non curate lex dominimus
non curate lex is what I'm trying to say. The
law does not concern itself with trifles, and we have
trifling matters here of due process in my opinion. So
now meanwhile, then, just by way of example, the plan
ofs try to gain the system in the case in
the Bozburg case by not filing a habeas corpus action.
They tried to get around filing a habeas corpus action,
which is proper remedy when somebody has been wrongfully detained
or wrongfully deported. The reason they didn't file a habeas
corpus action was they'd have to do that in Harlingen,
Texas down there by the Rio Grande. They did want
to do that. They want to come to Washington, d c.
And have a liberal judge preside. So what they did
is they challenged Donald Trump's proclamation. So what happens is
it's an artificial get around of the of what the
proper procedure should have been. Now Judge Bozburg has the case,
and he makes these rulings and asks that the plane
be sent back, and demands that the plane be sent
back and so forth and so on. He shouldn't be
hearing that case in the first place. It's an artificial
basis to file the suit. And the Supreme Court held that.
Supreme Court says, hey, this isn't the way you challenge this.
You challenge it by habeas corpus, and it should have
been in Harlingen. Judge, you are wrong. Now what happens is, yeah, well.
Speaker 1: We definitely have a manipulation of the process then, and
I think that's where the concern comes in. There was
an interesting piece and I rarely say that an even
keeled piece, and I more rarely say that in MSNBC
recently written by Jessica Levinson columnists there it is about
as even keeled as MSNBC can get. But it notes that,
you know, we have a move that is going on
in Congress to kind of end this judge shopping stuff.
Senator Chuck Grassley others introduced a Senate bill to limit
nationwide injunctions. Admitted, but he has admitted that neither party
has been consistent when it comes to these kinds of things.
In essence, you know, conservatives cheer when judges order, you know,
issue orders this way against executive branch, the executive branch
that they don't prefer. Liberals are now obviously doing the
same thing again, So we have this on both sides.
But as you mentioned, the problem is that it has
become the duty, it seems, of these activist judges now
in Washington, DC, but also elsewhere to come up with policy.
I mean, in fact, aren't they indeed affecting policy? Are
they overstepping their bounds when it comes to the other
branches of government in our coequal form of governance?
Speaker 2: Well, that's right. They are. And that's the problem with
the nationwide injunction. And that's the problem with judge shopping,
because once you bring up an issue that the judge
really likes, oh boy, I've really wanted to weigh in
on this. Now he declares a nationwide a nationwide injunction
or a nationwide class he may need he may not
need to declare a class action, just say his injunction
as nationwide force. And now he's setting policy and so.
And if you're dealing with things like due process, where
there's not a written statute, it's his opinion about what
due processes. It's his opinion. And so now the judge
is really in the guise of being a judge, which
one thinks of as interpreting the law. Interpreting the due
process clause is like saying, okay, write a novel yourself
and say it's part of the due process clause. It
is something that is wholly within the creation of the court.
And that's the problem, and that's the uh, that's the
problem we have to deal with is how to how
to put a stop to this. I think the best
place to begin is with the Supreme Court. If they
can take cases and really lay down law that really
affects the lower courts and gives guideposts as to how
and when, if at any time, a nationwide injunction should
be issued and have some fairly strict guidelines so that
now down below the lower courts get the message. But
right now it's Katie bar the door. A lower court
judge can do anything he wants and he's going to
get his picture in the paper and as being an
anti Trump guy. And recall back in twenty seventeen when
this started, you know, these judges were hailed as being
great heroes because they were resisting Trump. And the whole
thing is a witch's preve it really is.
Speaker 1: Yeah. I couldn't agree with you more on the point,
and I think it's a critical point that the Supreme
Court needs to weigh in and it needs to.
Speaker 2: Do so quickly.
Speaker 1: You know better than anybody how the wheels of justice
turn in this country in so many cases. So I
don't think we'll be looking at an expedient resolve to this,
but the things are subject to change. Back to the
immigration point, you mentioned due process, and it was I
think we all can understand that notion. If someone crosses
the Rio grant they're here illegally, you don't have to
let them in. The laws as first and foremost, there
is a process that you have to follow. If you're
here illegally, you've already broken the law. But of course
you have, you know, the gnashing of teeth and the
moaning from the usual suspects and the accomplished media and
the left after millions upon millions of illegal aliens were
allowed into this country under the previous administration and that
was not ever stopped. But the question at its core
is this, do illegal immigrants, and it comes to breaking
immigration law, do they have due process in the United
States of America under the US Constitution.
Speaker 2: Well, there are two ways to answer this. One is
to say they don't because it is a matter of immigration,
and in essence, if they shouldn't be here, they shouldn't
have due process. Perhaps the better way to phrase it
is their due process rights are very slight and slim
because of what they're doing, and therefore you don't need
a whole panoply of remedies and hearings and so forth.
You can deport the people, send them across the river
and say, look, if there's anything you want to challenge,
you know, pay your fee and file your suit. That's
really the way it should be. That is to say,
you know what gives you a right? Do you immediately
have some right once you make it across the river,
And that should be so that you can force us,
force the country to give you really an expensive proceeding.
And that's one of the problems. We have what at
least ten million illegals here but probably more like thirty million.
Do each of them have their rights to their own
a hearing, you know, in person hearing before we deport
any of them? And I say no, I say, we're
really stretching the due process clause beyond its intent. And
I don't think. I know, logic says that, oh, well,
you have to give everybody this hearing, But I don't
think the original intent of the framers of the Constitution
was to do that. The found fathers at the same
time the constitutions issued, I think they're pretty tough on.
Speaker 3: You.
Speaker 2: Any kind of aliens that we deemed hostile or we
deemed not welcome. I mean, this is really now. We
allowed more unfettered immigration in the beginning of our country,
of course, but of course now when people are coming
in they're coming in in a hostile way against the
interests in the United States, and I just think that
their due process says rights are limited. So you know,
I think we have to start thinking better.
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Speaker 1: And this is all branches of government. Of course, we
have existing laws on the books. We've had them for
a long time. They just haven't been followed. So it's
not certainly always and immediately a matter of changes from Congress.
It's a matter of the executive branch enforcing the existing laws.
We didn't have that in this country for the four
years previous to the Trump administration when it came to immigration.
In fact, it was the policy of the Biden administration
to have at the very least generously putting this very
liberal policies on entry. Argue that we had really no
order at all under the Biden administration, and I think
that would be a good argument. But certainly, millions upon
millions of people entered into this country, some of them
on terrorist watch list as we know, many of them
who have committed violent crimes in their countries of origin.
The American people are definitely, according to the polling, on
board of fixing the illegal immigration process. They're on board
with deporting illegal immigrants. Yet the court at courts, at
every turn, at least these judges involved are appealing to
their interpretation of the constitution. What about the existing laws
on the books? Do those not count?
Speaker 2: Let me give you something that I see a sort
of a dynamic. Obama when he's precident, he stretches his
executive authority to say, look, because I'm in charge of
law enforcement, that's an executive function. I'm going to delay action.
So you have this DACAP, which is delayed action whatever
it is, on these young illegal immigrants. I'm going to
delay action, and everybody says, oh, that's so clever, Barack,
that you're using your executive discretion to an essence, allow
these young kids to stay here in the United States
and be free of deportation. You didn't get a law
from Congress, and you didn't even go to a judge
to say this is okay. You used your unfettered executive
discretion to do this. Biden then takes five hundred thousand
people from Haiti and other places and flies them into
the United States. That's solely a matter of executive discretion.
There's no law that says this is okay. There's not
a court that says it's okay. It's the executs of
acting in an unfettered way. So let's assume that the presidents
do have that power to do that. Why can't the
next president use his discretion to take those people and
remove them. Say okay, now i'm president, I'm not going
to delay action anymore, and I'm going to deport some
of these people, at least the ones I don't like
or that are violating the law. Now, what happens when
the government tries to deport somebody under DAKA The courts
hold the rights have been created. In other words, now
you need your due process hearing before you can take
a DOCA person out of the country. You better have
a damn good reason to do this. So the courts
have now hold well, now the person has a right.
Wait a second, does that person have a right? So
an executive can create rights of a certain type through
within the am but this authority, but the next executive
can't undo those. Now there's something wrong with that. What
that is is that's a tremendous bias in favor of
what I would say rogue action by an executive. So
the executive in this case Trump, that's trying to really
enforce the law and make sure we have an orderly
immigration process. He's now hamstrung because of course, are now
sort of expanding the whole notion of due process and
also what rights. Like I said, heer my example, if
you come right over the river, you don't have a
right yet, but now that you've been here for a while,
now you have these vested rights. We're vesting rights in people.
So in essence, at an activist executive can create rights,
but a conservative of executive cannot undo them. And that
doesn't seem to make sense, and we have to be
practical about what due process rights one of these immigrants has.
What have re vested in them? And I say nothing.
They're here illegally. They should not be considered to have
vested rights. Yes, perhaps a hearing somewhere sometime, somehow, but
not necessarily a formal a formal of ceremonial of trial.
Speaker 1: That is breathtaking and infuriating at the same time. The
history that you just laid out, and that's exactly what's
happened in this country over the last decade and a
half or so more so. And it's disparate treatment is
what it is. It's disparate treatment of the executive branch
by the judicial branch. Some you know, some argue argued
overstepping of the executive branch. If that's what the digital
branch is arguing, is okay, as long as we you know,
it's it's nice as you mentioned, or kind or however
we want to view it. But once you have a
president who says, listen, there's been a lot of damage
done because of the previous executive actions. We're going to
reverse those again. He has the power to do that
under the you know, the arguments that the previous administrations
were able to do that. Now he's all of a sudden,
Adolf Hitler, you know, now, all of a sudden, this
is a constitutional crisis. It is absolutely bewildering. But I
think it plays out to what your book is all about,
and I want to get to that in just a moment.
Our guest today is former federal prosecutor John O'Connor, author
of Postgate. Now the Washington Post betrayed Deep Throat, covered
up Watergate, and began today's part as an advocacy journalism.
He's also host of the Mysteries of Watergate show. You
wrote this book because of the abuse of power going
on in many spheres, but particularly in the so called
fourth Estate. And I think about all of this in
the context of the latest cause celeb for the usual
suspects in corporate media, the so called Marilyn Man deported
to El Salvador, according to all of the rhetoric that's
gone on from the corporate press, kilmar Abrego Garcia, who
we have found out now has had quite a criminal record,
should never have been here in the first place. Now,
all of a sudden, we have these federal judges awarding
him all kinds of rights that don't really exist. But
driving all of that are your folks at the Washington
Post and the accomplice media who have told who have
been extremely irresponsible in their telling of this story.
Speaker 2: Now that's right. The liberal press that I would even
call them liberal, the progressive press emphasizes these things, tries
to make Trump look bad, but at the same time,
really they hide the abuse that's occurred under politicians as
they like. And that's a problem. And all the you know,
the seemingly intelligent citizenry are not really told the truth,
and they're making decisions based on imperfect information. Each citizen
out there, even highly intelligent people, don't have time to
research these things themselves and don't really understand what's going on.
So the fourth estate is a big player in what
we're talking about. They will emphasize the wrongdoing here with
the Garcia. Oh this is so terrible how we're treating
this man, but there's no emphasis on the broader picture
and all the you know, the really unlawful activities of
activist presidents. I mean, think about that, all the things
that Biden did regarding just let's stick with immigration. But
nobody shines a light on that when it happens. And
now here Trump's trying to get rid of one guy
who's a terrible guy. And I think anytime you're dealing
with national security and the border, we're getting into that
issue of to what extent does the executive have a
realm of power that should not be reviewed or should
be reviewed with great deference by the courts. That's really
the way our systems should work in those matters. The
court should either not review them or give, as Justice
Roberts so well put it, judicial difference very politely. He
expressed that. But it's been the tradition before modern times
for courts to stay away from things that they considered
political questions or there's a question of executive power versus
a judicial power, to give deference to the executive. That's
no longer there. And a lot of this is because
of a media that considers itself part of the game.
As Matt Taibe says, since Watergate, journalists have wanted to
be behind the velvet rope. They've decided that they're job
is to do what's right, to be activist, and once
that happens, then it's your job to be on a
team and really be a pr organ for the political
view you espouse. And we're not getting good information from
the fourth Estate, is what it amounts to.
Speaker 1: Yeah, we've definitely seen that, and that's absolutely right. That's
the most dangerous part about all of that as well,
is that you have this true collusion that's going on.
I mean, you need no more you need no better
example of that than for previous years when the accomplice
media as I like to call them, covered up for
a president who simply did not have the cognitive abilities
to lead this nation. And they have been on kind
of an acceptance tour of that some of the books
that we've seen from Jake Tapper and others, but many
of them, you know, just doubled down, and they've doubled
down and what they started to do in twenty seventeen
their resistance movement against Donald Trump. But it's more than that.
And I think you drive that home in your book
with what happened with Woodward and Bernstein. You know, they
became household names in Watergate. They're reporting at the Washington
Post on Watergate. There were there were future there would
be future generations of journalists who wanted to be the
next Woodward and Bernstein. All of that, didn't we create
out of Watergate, in particular, a star culture of the
media that has been really a dangerous component to what
we're talking about here.
Speaker 2: That's right, we have. You know, it encourages Michael Isikovs
of the world to make a big deal about the
Kuran being flushed down the toilet and so forth. There's
a constant effort to be the next Woodward in Bernstein
and do something sensational. Think about this. As I point
out on my book Postgate, the reporting in Watergate was deceptive.
It seemed like it was factual, but it's very deceptive,
much by concealing as to what was reported. It's the
concealing deliberately that drove Richard Nixon from office unfairly. If
you can affect a president, a sitting president that's been
popularly elected by the in forty nine states, and you,
as a journalist, two young guys can get rid of
this president, think of the power you have. And that
Watergate scenario is taught in journalism school. It puffs up
what the role is of a journalist, and rather than
calling balls and strikes and not being judgmental at all,
but just recording facts and letting people decide for themselves.
They've tried to shape public policy and public perceptions. So
now let's take what happened in Watergate. And Watergate, clearly,
the Washington Post covered up the fact that it was
the CIA operation in Watergate, they had infiltrated the White
House and that the target of the eavesdropping was the
bordello down the street where the DNC was giving referrals
to out of area politicians who are visiting and referred
to the bordello. That's an entirely different cast on Watergate,
but that was hidden from the public. And okay, now
let's go fast forward to Trump. Now, they don't like Trump,
and both the Posts and New York Times have admitted
that there really were out after Trump because they're good
and we know that Trump is bad. So what happens
when this Russian collusion comes up? Russian collusion was something
that was a dirty trick started by Hillary Clinton, specifically
Jake Sullivan, to try to take attention away from Bernie
Sanders and started this whole Russian collusion charge. Any reporter
that wanted to could have shown that all the witnesses
that supposedly supported Russian collusion were actually in bed with Putin.
There were Putin's oligarchs. So if Putin was really conspiring
with Donald Trump, would he allow all his people to
expose his collusion with Donald Trump? Of course not. But
Christopher Steele was a puppet of Dara Pasca, for example,
Glenn Simpson was a puppet of Dennis Katziv, who's an oligarch.
You have other people the same thing. You could look
at this and in ten minutes of intelligent investigative reporting
you would know that the Russian collusion thing could not
possibly have been real. That if anything, it was a
campaign between where Hillary got and John Brennan got the
help of Russians to discredit Trump. And it was a terrible,
terrible plot. And actually there was a Russian collusion, but
it was between Hillary's campaign and the Russians, the different
oligarchs and spies. Igor Danchenko was a Russian spy, Christopher
Steele's big witness. All of this was easily shown. But
yet what did the media do. The media hopped on
the russianclusion narrative and tried to spin it for years.
They wanted Trump, they wanted badly to show that Trump
was a Russian puppet and so forth, And as in Watergate,
if they got Trump, it would have been on a
process crime and others. You claim that he's a Russian puppet,
but then you hope he lies and you can get
him on obstruction injustice, as they did with Richard Nixon.
They got him on a little fairly technical obstruction of
justice issue. But none of this is possible. My real
point is, none of this is possible if you have
an unbiased media. We would not be having these convulsions
in our country. If you had an unbiased meeting, we
wouldn't have had Watergate. Will at least Watergate would have
been a much different scandal. I suppose we wouldn't have
had Russian collusion, at least not in its form. We
would have nailed Hillary for a dirty campaign trick and
so forth. But if the truth were known, But the
truth isn't known because the media feels so good about
manufacturing things. So now we get to Biden, and of
course they conceal the truth about Biden. They conceal not
only is dementia, but they concealed the clear proof of
his corruption. I mean, this is a corrupt man that's
in a corrupt, demented man in the Oval office, and
the media is out there cheerleading for him. So it's
really what the media. It allows the politicians to get
away with murder, is what it does if you're on
the right side of the fence. If, on the other hand,
you have the bad fortune of being a conservative. I mean,
think about what happens to George Bush, who was really
George W. Bush Bush too. He was really a hero
in his response to nine to eleven and was just
trashed for it.
Speaker 1: It is interesting to think back on all of that
history and to think about if Donald Trump were in
the position in nineteen seventy three, seventy four when you
have you know, the members of the leadership in Congress
coming to his office and saying, I'm sorry, mister President,
but you've lost to Congress. I can only imagine Donald
Trump saying, get the hell out of my office. I
got work to do. Richard Nixon took a different path. Now,
you know, there are a lot of different things going on,
but many similarities. You have a president now who simply
doesn't care about and understands what the media is doing,
understands what the left is doing through the media. But
my final question, as it gets back to the judiciary again,
nobody has been held accountable. Relatively few people have been
held accountable for the crimes, the real corruption and crimes
that you just laid out in recent years in this country,
and yet the judiciary, an activist judiciary, is using that
branch of government to criminalize the actions of the executive branch.
Where do we go from here?
Speaker 2: And back in Watergate, we still were gullible and trusting
and the media reported things we believe the media today,
we now at least have a more cynical, skeptical public
who is not going to buy everything that's sold them.
But where do we go from here? That is a
real problem because we still have the judiciary criminalizing the
executive branch. And really Prumpt's fight is a fight that
had been engaged in earlier in our country's history, in
which Thomas Jefferson insisted on certain executive branch rights, so
did Andrew Jackson, so did Abraham Lincoln, and they fought
the good fight. I think this fight is occurring again.
To be fair, I'm not sure Trump always fights it judiciously,
but he fights it, and good for him. But there
is this ambit of executive action that we should cheer,
especially when we really have had a foreign invasion. We've
had thirty million people here that shouldn't do and that
is a strain on our welfare system. It's not fair
to the people who really need welfare. We don't have
unlimited resources. We've got tremendous death and the executive should
be able to do something about that. And the judiciary
is hamstringing them by having an overly generous view of
due process and its ability to review executive action. There
should be far more judicial difference, and I hope the
Supreme Court starts lecturing the lower courts on judicial deference.
We just can't do this. We can't have an executive
that is hampered by constant, constant manacles forged to buy
the judiciary. So it's very interesting.
Speaker 1: At one final point, if I could, you know, put
an exclamation point on what you just said. What about
deference to the American people, the majority of Americans who
voted for this president, this administration, and this majority in Congress.
What about that difference?
Speaker 2: Well, that's what Andrew Jackson said. I'm the representative of
the people more than any other elected official. I represent
the people as a whole in this country, and there
should be some difference to me as I'm trying to
do their will. And that's what's happening here. You have
an elected president and we elected him to mainly one
of the main reasons we elected him was to clear
up this immigration problem, which is a serious, serious problem.
And he's doing it the right way by getting the
bad guys the worst guys first, and the judiciary is
just trying to hamstring him. And there should be a
sense of that. And it is too bad that our
media is, as you say, you know, in the tank.
Speaker 1: And I wish we would learn from history. We often
fail to do. So you've laid it all out in
your book. I think you can find the antecedents of
that within your book. Very much appreciate your time today.
I always appreciate the historical perspective in looking at that
through that prism and the times in which we live.
Thanks to my guest today, former federal prosecutor John O'Connor,
author of Postgate, How the Washington Post betrayed Deep throat,
covered up Watergate, and began today's partisan advocacy journalism. He's
also host of the Mysteries of Watergate. You've been listening
to another edition of The Federalist Radio Hour. I'm Matt Kittle,
Senior Elections correspondent at the Federalist. We'll be back soon
with more. Until then, stay lovers of freedom and anxious
for the fray.
Speaker 3: Hear the Fameboys reason, and then they faded away.