Speaker 1: Takes a lot of bandwidth for all this beauty. Steve,
Speaker 1: I know, Oh are you recording whiskey?
Speaker 2: Come and take my pay the money ry, oh whiskey.
Speaker 3: Why think alone when you can drink it all in
Speaker 3: with Ricochet's Three Whiskey Happy Hour. Join your bartenders, Steve Hayward, John,
Speaker 3: You and the international woman of Mystery, Lucretia.
Speaker 1: Where they slapped it up and David, ain't you easy
Speaker 1: on the souldiers?
Speaker 3: Tap got a giving? Well, the dog days of summer
Speaker 3: are upon us, but there's no letup for the swilling
Speaker 3: hounds of the three Whiskey Happy Hour. Hi, everybody, it's
Speaker 3: Steve here out in California. John is in Texas, and
Speaker 3: Lucretia is at her undisclosed location where he catches her
Speaker 3: international plots of mystery. Hi guys, how are you not
Speaker 3: so bad?
Speaker 1: Not so well, Steve, because I have to tell you
Speaker 1: I have no Internet.
Speaker 3: Yeah, I know, you're on your phone and Starling is
Speaker 3: down and the creation I both use Starlink most of
Speaker 3: the time, and I have a backup, and she's on
Speaker 3: her phone so we can't see her today.
Speaker 1: And all I'm gonna say, it's harder to launch international
Speaker 1: plots when you have no starlink, it's very darlint.
Speaker 4: Starlink is an international.
Speaker 1: For months, John, and this is the first and only
Speaker 1: time I've ever even had the slightest issue with it.
Speaker 1: And it's down everywhere, as you pointed, out throughout the world.
Speaker 1: So hopefully comes back up soon. Elon, if you're out there,
Speaker 1: get busy.
Speaker 3: Yeah, something's up with this. I think this will be
Speaker 3: a big story when we find out what's happening. So
Speaker 3: what we're doing listeners today is we're going to do
Speaker 3: our round robin format where we really do share hosting duties.
Speaker 3: Each one of us in turn will pick one story
Speaker 3: or issue of the week. But first before we start
Speaker 3: into that, formerly a few quick news updates and announcements.
Speaker 3: The first one I'm pleased to say is that Hadley
Speaker 3: Arkis has started his own podcast along with Gerard Bradley
Speaker 3: at the James Wilson Institute about our natural law moment.
Speaker 3: And we're going to take complete credit for them doing
Speaker 3: this because we have been, you know, using and abusing
Speaker 3: Hadley here for weeks and we did we still want
Speaker 3: to have him on here, and we just had scheduling problems.
Speaker 3: But I'm included the show notes a link to the
Speaker 3: new podcast where Hadley takes out his revenge on us
Speaker 3: for abusing him, and everyone should bookmark that and drop
Speaker 3: in who are interested in the subject. Second item, good
Speaker 3: news for you. John McDonald's announced earlier this week that
Speaker 3: they are going to test market dirty it is, which
Speaker 3: I'm not sure what that is, but it's its flavored
Speaker 3: cold brews. And you know, pictures they show look like
Speaker 3: pina coladas and Cosmount or something. I don't know, but
Speaker 3: I figured that's probably welcome. An important news for you.
Speaker 3: We'll go great with mcgribb.
Speaker 4: If you, I don't know if you've seen these things.
Speaker 2: You know, if you go to these I frequent these
Speaker 2: Asian drink places where they mix coffee and sweet sometimes
Speaker 2: fruits and then weird jello shots and all in one
Speaker 2: giant drink. It's like Steven Linda's grad school days and drank.
Speaker 3: No.
Speaker 4: You know, I welcome this. I welcome this on McDonald's part.
Speaker 4: Thank you.
Speaker 3: I'll have you and listeners know that I gave up
Speaker 3: dak reeves and any drinks with red coloring and umbrellas.
Speaker 3: And before Ronald Reagan was sworn in for his first term.
Speaker 1: So anyway, and I'll have you all know I never
Speaker 1: drank them. I just drank Scotch and black coffee from
Speaker 1: the time I was fourteen years old.
Speaker 4: Really, why does that not surprise me?
Speaker 1: I know because my dad. You know, I'll be honest
Speaker 1: with you. I also Steve can attest to this. He
Speaker 1: used to smoke many years ago. And I used to
Speaker 1: get up with my dad in the morning because in
Speaker 1: the summers I worked at his glass manufacturing plant, where
Speaker 1: it wasn't his he but he was a plan engineer,
Speaker 1: and we would get up really early in the morning,
Speaker 1: lovely view of the valley of this huge picture window,
Speaker 1: and we would have what my dad referred to as
Speaker 1: a whorse breakfast, which was two cups of coffee and
Speaker 1: three cigarettes.
Speaker 4: Wait, why why don't why don't they eat better than that?
Speaker 1: Come on, well, I actually still have that minus a cigarette.
Speaker 2: So wow, Well I just see I imagine fourteen year
Speaker 2: old Lucretia drinking black coffee and scotch and smoking while
Speaker 2: she's cleaning a rifle.
Speaker 4: So that's what I imagined.
Speaker 1: It was California, so rifles were a little harder to
Speaker 1: come by then.
Speaker 3: Well, you know, my mentor Stan Evans like to say
Speaker 3: that his favorite breakfast was coffee and cigarettes, one a
Speaker 3: leafy vegetable and the other a lugume, because breakfast is
Speaker 3: the most important meal of the day. Okay, next night.
Speaker 3: It's an update for something, Lucretia, you brought up last
Speaker 3: week and you made a passing car meant that the
Speaker 3: Progressives like AOC in particular. And your favorite person, miss
Speaker 3: a sturdy eyelashes herself, Jasmine Crockett. We're raising money hand
Speaker 3: over fist. Well, the numbers are out today and the
Speaker 3: top money raiser in the House of Representatives is in
Speaker 3: fact AOC, with nearly fifteen million dollars raised this year alone.
Speaker 3: That is twice as much as the Speaker of the House,
Speaker 3: Mike Johnson, and it's more than twice as much as
Speaker 3: any other Democrat, including I think it's four times as
Speaker 3: much as hockeying Jeffries, who would be Speaker of the
Speaker 3: House if Democrats won a majority. And if the person
Speaker 3: I think most astonished by that or worried about it,
Speaker 3: I should say, or most anxious about it, has to
Speaker 3: be Chuck Schumer, because AOC can pretty much take all
Speaker 3: of that money and put it into a Senate race
Speaker 3: if she wants to. There are a couple wrinkles between
Speaker 3: House committees and Senate committees, but they're easily overcome, I think.
Speaker 3: And so she's got a big war chest for whatever
Speaker 3: she wants to do, and I suspect she will do
Speaker 3: it right anyway. And overall the Progressives are if you
Speaker 3: sort of total up all the people along the Progressive Caucus,
Speaker 3: it's like two thirds of all the money the Democrats
Speaker 3: have raised so far in a selection cycle. So not
Speaker 3: good news for people to want to move the Democratic
Speaker 3: Party back toward the center, whatever that would be.
Speaker 1: Steve Can I ask you a question about that. Sure,
Speaker 1: Where did you read it.
Speaker 3: Morning?
Speaker 1: Well, yeah, that's where I read it too, And what
Speaker 1: was interesting to me was the usual pandering to the
Speaker 1: left that we have come to expect from the once
Speaker 1: vaunted Wall Street Journal that well, no, wait, My point
Speaker 1: is that they had to put in there that all
Speaker 1: of her money came from this new grassroots effort to
Speaker 1: get small donors. So they make it sound like all
Speaker 1: of the poor people in the United States all sent
Speaker 1: her a dollar because they think she's going to be
Speaker 1: the person who saves them from their poverty and of course,
Speaker 1: the point of the matter is she's getting huge, huge
Speaker 1: contributions from stupid leftists with more money than brains, and
Speaker 1: that's what I really want.
Speaker 3: We'll say about that, that's not I mean, that's not well,
Speaker 3: part of that's right. She actually can't. Her own committee
Speaker 3: is bound by the contribution limits. Now whether now a
Speaker 3: separate independent pack can take, you know, unlimited amounts from
Speaker 3: George Soros or something like that.
Speaker 1: But we know that Act Blue was really good at all.
Speaker 3: Yes, yeah, no, you're right there. I'm quite sure that
Speaker 3: Act Blue and others are bundling lots of small contributions
Speaker 3: for her and Rocanna and Jasmine Crockett and so forth. However,
Speaker 3: it's significant, I think politically that she is getting these
Speaker 3: individual donations and not from packs the party leaders. They
Speaker 3: always get the money from the corporate packs and the
Speaker 3: labor unions. And the fact that that AOC is getting
Speaker 3: contributions from individuals, even if bundled by Act Blue, tells
Speaker 3: you where the center of gravity the Democratic Party is
Speaker 3: and where the energy is. And that should be very
Speaker 3: worrying to everybody. That's all anyway, Two more quick things
Speaker 3: also out today. Joe Biden has sold his Memoirs for
Speaker 3: ten million dollars, which a is less than Clinton, and
Speaker 3: the Obama's got by quite a bit, and no one's
Speaker 3: going to read that book. Point two, we all want
Speaker 3: the film version of Hunter Biden's memoirs, except we already
Speaker 3: saw the film version a few days ago, if you
Speaker 3: caught any of that tube.
Speaker 1: So which publishing company was stupid enough to spend ten
Speaker 1: million dollars in a campaign contribution to somebody who can't
Speaker 1: run for president?
Speaker 3: Yeah, well it's the Hashet Book Group, which is now
Speaker 3: owns a whole lot of the big imprints. So I
Speaker 3: don't know if it's going to be Hashet itself or
Speaker 3: one of their I forget who they own, but they
Speaker 3: own a lot of the prominent names, and so you
Speaker 3: know it doesn't matter. I mean, it'll be one of them,
Speaker 3: and that book will be on the remainder table at
Speaker 3: Costco probably the afternoon it comes out. So there's all that.
Speaker 3: And then finally before we take a break, before we
Speaker 3: get into our main topics today, John, we have a
Speaker 3: question for you from several listeners and readers, So be
Speaker 3: sure to turn your microphone back gone and don't fall
Speaker 3: asleep on us. There's this crazy story, crazy to us
Speaker 3: lay people out of what New Jersey where a bunch
Speaker 3: of federal judges are saying, no, we are not going
Speaker 3: to accept Alena Habba, you know, Trump's former personal lawyer
Speaker 3: as the acting US attorney for our district. And the
Speaker 3: question people are saying is can judges do that? Is
Speaker 3: it this a separation of powers problem? Is there some
Speaker 3: statute that I have missed or that we've all missed
Speaker 3: that gives the judges some say and who can represent
Speaker 3: the government in their courtrooms? What's going on.
Speaker 4: Here as usual? Steve?
Speaker 2: You think because it's not in the Clean Air Act,
Speaker 2: something that is going on. Come on, come on, man,
Speaker 2: there's another statue.
Speaker 4: There's lots of other statues.
Speaker 2: So this one's called the Vacancy's Act, And actually she's
Speaker 2: just being treated normally as anybody else would be in
Speaker 2: the under Vacancy Is Act, and she's just not getting
Speaker 2: the benefit of a special provision that only applies to prosecutors.
Speaker 4: So just explain it real quickly.
Speaker 2: Anytime there's a vacancy in a position for which the
Speaker 2: President nominates and the Senate confirms, the president can put
Speaker 2: someone in their acting for I think one hundred and
Speaker 2: twenty days, and so she's just reached the end of
Speaker 2: her period. Usually at the end of that period, then
Speaker 2: the career person who's in that office becomes the acting
Speaker 2: And you know what, this was changed so that President
Speaker 2: Clinton could not keep repeatedly making someone acting head of
Speaker 2: the Civil Rights Division of the Justice Apartment, someone who
Speaker 2: the Senate kept rejecting over and over again. So there's
Speaker 2: this twist for prosecutors, for US attorneys. This is I've
Speaker 2: always thought this violates a separation of powers, but it's
Speaker 2: been with us since the founding. The courts are allowed
Speaker 2: to appoint someone to be the US attorney in a
Speaker 2: district if there's a failure like this, And so all
Speaker 2: that's happened here is that district judges there have said, no,
Speaker 2: we're not going to use that special power.
Speaker 4: Go point at somebody else.
Speaker 2: But it is a sign that the judges there have
Speaker 2: don't have much respect for Billina Habba, because if they
Speaker 2: did respect her, they would have they could have made
Speaker 2: a permanent It's actually one of the few areas in
Speaker 2: the executive branch where the judges can actually appoint the
Speaker 2: permanent official. It's as if the president and the Senate
Speaker 2: had advised and consented. It's this weird wrinkle in the
Speaker 2: appointments process. It doesn't apply to any other official in
Speaker 2: the executive branch as far as I know.
Speaker 1: And so there you have the rhino explanation at the
Speaker 1: very end, which says it's because they have something against
Speaker 1: her and not because they're all rabid anti Trumpers that
Speaker 1: they decide.
Speaker 2: I mean, she's manifestly unqualified for the job. I mean,
Speaker 2: did you see what she did before she represented Trump?
Speaker 2: I mean, come on, I don't think she'd ever appeared
Speaker 2: in court ever.
Speaker 4: I kind of giggled.
Speaker 2: I mean, I'm laughing because I mean, it's appropriate that
Speaker 2: she would be put in New Jersey.
Speaker 4: New Jersey deserves things like this.
Speaker 3: Right. Well, I'll just mention in passing that my late
Speaker 3: father in law was US attorney and Reno, Nevada under
Speaker 3: President Eisenhower, I think at the age of thirty four.
Speaker 4: Wow Eisenhower. Oh yeah, yes, by Eisenhower.
Speaker 3: You know there are only ten people lived in Reno
Speaker 3: in the fifty access. That's really true.
Speaker 2: He was in the middle of the ten people lived there,
Speaker 2: and eight of them were under investigation.
Speaker 3: Just oh no, no, that was he was you know,
Speaker 3: authorizing and supervising wiretaps of some of the mob people
Speaker 3: in Reno and stuff. And no, he was involved a
Speaker 3: lot of the mob busting that went on in Nevada
Speaker 3: in the fifties. So anyway, so I don't know, if
Speaker 3: you know, I don't know what his courtroom experience had
Speaker 3: been at that point. But still thirty four is pretty
Speaker 3: I think he's like one of the youngest ever appointed
Speaker 3: to be US attorney at the time.
Speaker 2: So we will point out that because New Jersey is
Speaker 2: filled with criminals and robbers, right being from Philadelphia, we
Speaker 2: watched them from across the river. Her it's actually been
Speaker 2: a great launching pad for US attorneys. You know who's
Speaker 2: amongst Alena Haveba's distinguished predecessors were Samuel.
Speaker 4: Alito and Michael.
Speaker 2: Like some of the greatest US attorneys you know that
Speaker 2: I've ever run into.
Speaker 4: And then Alena Habas.
Speaker 2: So I could see why the judges were not impressed. Well,
Speaker 2: Chris Christie was Chris yes, Chris yes, Chris Christy too.
Speaker 1: Sorry, there's a lot of hacks out there, and don't
Speaker 1: forget that that are US attorneys. I know some of them,
Speaker 1: and I won't bring up their names here, but remember
Speaker 1: that you're forgetting part of the story, which was Hakeem
Speaker 1: Jeffries sending a letter to those judges telling them that
Speaker 1: she was, you know, pro Trump and this and that,
Speaker 1: and that they needed to uh that she was partisan
Speaker 1: and therefore they needed to vote against her. And that
Speaker 1: was a complet I mean, it turned it all into
Speaker 1: a partisan game. And you know, for that reason, they
Speaker 1: should have said, no, we're not going to listen to
Speaker 1: Hakeem Jeffries and kept her. That's what I think. Well
Speaker 1: they didn't because they're all scum Democrats.
Speaker 3: Some other time, because John was so young, then I
Speaker 3: might go back and revisit the Marston affair from the
Speaker 3: nineteen seventies. He was the US attorney for Philadelphia that
Speaker 3: Jimmy Carter wanted to get rid of.
Speaker 2: You will be shocked, I know that very well because
Speaker 2: I dated his daughter.
Speaker 3: Oh my god, this we will have to hear him,
Speaker 3: but not this week. And now we're going to go
Speaker 3: to a quick break and we'll come back and get
Speaker 3: started on what we had in mind all along. Don't
Speaker 3: go away, all right, Lucretia, I want to toss first
Speaker 3: to you today to find out what's on your mind.
Speaker 3: I think I know what's on your mind. And the
Speaker 3: good news listeners is Lucretia does not even need her
Speaker 3: tinfoil hat today for this story. Lucretia, I think.
Speaker 1: I'm still gonna need it because there's still a lot
Speaker 1: of obfuscating going on. But so the revelations that have
Speaker 1: come out from the D and I Telsea Gabbard regarding
Speaker 1: what most of us knew really happened anyway, was, you know,
Speaker 1: the entire corruption of our intelligence services by Obama and
Speaker 1: Hillary Clinton. That they were also upset when Trump actually won.
Speaker 1: They were all shocked and dismayed. And Obama, of course,
Speaker 1: the narcissistic little that he is, couldn't even bear the
Speaker 1: thought that he was not going to have another four
Speaker 1: years in office. Through Hillary, that they launched what has
Speaker 1: to be the most treasonous set of activities ever committed
Speaker 1: by a president. And I know a lot of the
Speaker 1: ones that you know reading being a sort of a
Speaker 1: presidential scholar, I know a lot of the things that
Speaker 1: went on. I can't ever anything worse. So what really happened?
Speaker 1: There were allegations that the Russians and helped me, Steve,
Speaker 1: if I get this wrong, because I don't have the
Speaker 1: ability to pull up all of my sources here to
Speaker 1: get the steps in the right order. So if I
Speaker 1: do this wrong, help. So the intelligence community put together
Speaker 1: an intelligence community of assessment that said that the Russians
Speaker 1: had been involved in it, had involved themselves in our election,
Speaker 1: and ultimately it was concluded that it didn't make a
Speaker 1: difference that Russian the Russians and others always involved themselves
Speaker 1: in other countries' elections for their own purposes. But then
Speaker 1: some things came up about Hillary Clinton's emails. Remember Hillary
Speaker 1: Clinton never was never executed for the crime of treason
Speaker 1: for keeping her servers in a bathroom and allowing them
Speaker 1: to be hacked by the Russians, which we know they were.
Speaker 1: And Steve wanted me to mention that the Russians say it, Steve,
Speaker 1: because I forget exactly how it went out.
Speaker 5: Well.
Speaker 3: Well, some of the materially found is that the Russians
Speaker 3: believed or thought they actually had the solid evidence to
Speaker 3: say that Hillary Clinton has serious health problems. She's prone
Speaker 3: to rages of temper, she's on the tranquilizers a lot,
Speaker 3: and I mean and everyone now immediately remembers the September eleventh,
Speaker 3: twenty sixteen episode when she was had to be propped
Speaker 3: up and put in the you know, falling down and
Speaker 3: you know see later a few hours said, I was dehydrated,
Speaker 3: right and anyway, I thought, well that's interesting. And there's
Speaker 3: also why didn't they release it?
Speaker 1: Though, Steve there was a reason. I don't remember why.
Speaker 3: I don't know why. I don't know why. Yeah, it
Speaker 3: was what a Senator House Committee report had all this,
Speaker 3: But I mean, I think the salient points are, First,
Speaker 3: Obama was up to his neck in this point number one.
Speaker 3: Point number two, they knew it was true, and they
Speaker 3: knew that the thesis of the Russian interference in the
Speaker 3: election was untrue. But that makes the point three, which
Speaker 3: is they went forward with it anyway in a deliberate
Speaker 3: attempt hobble Trump once he took office, which you know,
Speaker 3: they it's hard to hobble Trump because he's unhobbleable' is
Speaker 3: that a word, but it's certain. Look, when you're under
Speaker 3: a Special Council investigation, as John knows, it really slows
Speaker 3: things down. It dominates too much attention to White House
Speaker 3: staff and so forth. So that seems to me as
Speaker 3: bad as anything. Nixon is alleged to have done in
Speaker 3: Watergate and did do right and went all the way
Speaker 3: to the top. And yeah, so.
Speaker 1: Yeah, and there's a lot more to it. You've got
Speaker 1: the who actually released some of those emails from the
Speaker 1: DNC and and was it you know, Julian Assan just
Speaker 1: said all along it was never ever ever Russia, And
Speaker 1: it was probably something that what was the name of
Speaker 1: the young man seth Rich seth Rich killed in a
Speaker 1: burglary that didn't take the burglar, the robber didn't take
Speaker 1: his wallet or anything else. And you know, there's just
Speaker 1: it's so ugly when anything is involved with the Obama
Speaker 1: or the Clintons. But ultimately so they not only did
Speaker 1: they publish things that they were untrue, they published things
Speaker 1: that they knew the opposite were true. And then of
Speaker 1: course go ahead.
Speaker 3: Well there's that seems to me there are three questions here,
Speaker 3: and let you start first and then we're going to
Speaker 3: get John in on this too. One is is you know,
Speaker 3: what are the criminal vulnerabilities of people in the whole
Speaker 3: chain of all this? And then second is President Obama,
Speaker 3: as they say in legal historicals, stopped from being prosecuted
Speaker 3: because of the immunity ruling that Trump won last year
Speaker 3: to the Supreme Court. And finally, you mentioned treason. I
Speaker 3: want to talk a little bit about that, because I mean,
Speaker 3: is this what foreign country are they working on? Behalf
Speaker 3: of I think it was a party interest. So and
Speaker 3: then there's the of how treason is defined in the Constitution.
Speaker 3: It's the only criminal matter discussed directly with litery, peculiar
Speaker 3: and interesting conditions. So anyway, whatever order order you want,
Speaker 3: whoever you want to.
Speaker 1: Take that, Okay. So the probably the most explosive part
Speaker 1: about Gabbard's revelations was in fact not only that Obama
Speaker 1: was involved in him but probably directing it. And so
Speaker 1: the inclusion of things in that intelligence community assessment, the
Speaker 1: exclusion of things, you know, the role of the Peepee
Speaker 1: tape as it's often called, the role of Christopher Steele,
Speaker 1: the role of the Clinton campaign, and the role of
Speaker 1: crowd strike, all of these readers, we don't have time
Speaker 1: to listeners, we don't have time to go through all
Speaker 1: of it. But I think what it ultimately comes down
Speaker 1: to is what do you do about probably most specifically Obama,
Speaker 1: Brennan and Komy. And this is where I have to
Speaker 1: reach to John and say, if you falsify intelligence and
Speaker 1: then leak that falsified intelligence with the purpose of either
Speaker 1: affecting an election or damaging a president, is there any
Speaker 1: crime there?
Speaker 2: Yeah, there's a question between whether there's anything new and
Speaker 2: what Gabert released. And then you're you're hypothetical which is
Speaker 2: different to me than what Gabret actually shows, but s
Speaker 2: your hypothetical is well, so first there's a crime in
Speaker 2: just releasing a classified right classified document. Leaking that is
Speaker 2: a violation of the Espionage Act, and that's criminal. But
Speaker 2: it's even Oh no, people get prosecuted for the I mean.
Speaker 1: Comy wasn't prosecuted in for instance, for doing it.
Speaker 4: Yeah, this is John m.
Speaker 2: Kin Homy was Comy was referred to the for prosecution
Speaker 2: by the Inspector General the Justice Department, but Johnham, John Durham,
Speaker 2: the Special Council chose not to bring charges. But they
Speaker 2: were I mean that might have been because they didn't
Speaker 2: think they could win in court, for example, But I mean,
Speaker 2: like you know, journals have been prosecuted for this espionage
Speaker 2: and actually Obama his administration prosecuted a bunch of people
Speaker 2: for espionage for Act violations. Or you could say, remember Bradley,
Speaker 2: Bradley Manning, whatever his name is now Chelsea Manning was
Speaker 2: prosecuted and right, so people do get prosecuted under it.
Speaker 2: So yeah, if you this, you know, if you release,
Speaker 2: if you leaked a classified it's not even just the document. Right,
Speaker 2: the way the statute talks about it says you can't
Speaker 2: leak defense information. So if they were, if you know,
Speaker 2: these officials were leaking information from the documents on the phone,
Speaker 2: for example, you could still be prosecuted for that. They
Speaker 2: couldn't say, oh, well, I never gave a document to anybody.
Speaker 2: That's not a defense So yeah, you could definitely prosecute
Speaker 2: people for the facts.
Speaker 1: You can't prosecute Obama, can you.
Speaker 2: So Obama is different because he might get immunity under
Speaker 2: the Trump decision. Right, So if you look at what
Speaker 2: what I think think Gabbert is claiming, she is claiming
Speaker 2: not that Obama manufactured some kind of intelligence or that Obama,
Speaker 2: you know, leaked any information. So her claim is that
Speaker 2: before Obama had a meeting with his intelligence people. Everyone
Speaker 2: knows that, and so before that meeting, the intelligence community
Speaker 2: had concluded that Russia had not tried to break into
Speaker 2: any voting infrastructure, or had successfully changed any vote or
Speaker 2: any outcome of any vote, and then there's this meeting,
Speaker 2: and then the Gabbard claims Obama then pasked the intelligence
Speaker 2: community to do this assessment to see whether Russia had
Speaker 2: tried to help Trump win. And so her argument is
Speaker 2: that Trump based I'm sorry that Obama basically did that
Speaker 2: with no real grounding in fact, that he must have
Speaker 2: done it for the purpose of handicaps happening the Trump
Speaker 2: administration when it started out.
Speaker 4: I don't see how that's not covered by the immunity decision.
Speaker 2: I mean, it's an official action, right that Obama can say, Look,
Speaker 2: I wanted to see whether Russia actually was involved. That
Speaker 2: seems that seems covered to me by the Trump decision.
Speaker 2: It's an official act of as president.
Speaker 3: Yeah. Yeah. We may come back to this point in
Speaker 3: our next segment, John, when we talk about executive power
Speaker 3: more broadly, which is what you want to bring up
Speaker 3: for listeners, Lucretia, what do you want to contest her answer.
Speaker 1: I'm thinking about the way the way that the Trump
Speaker 1: case looks at the question of what goes on between
Speaker 1: president and his advisors as close as advisors and you know,
Speaker 1: even the arguments way back from Nixon versus Us versus Nixon, whichever,
Speaker 1: it is that those almost always are considered official acts
Speaker 1: for the and that they are entitled to. I believe
Speaker 1: that falls under the presumption of immunity, not absolute immunity,
Speaker 1: but the presumption of immunity. And you know, they made
Speaker 1: that distinction because of the effects that worrying about being
Speaker 1: criminally liable for those things that you discuss will have
Speaker 1: on the Article two powers that you know, the core
Speaker 1: powers of the presidency. What they don't say, however, is
Speaker 1: that it's not a subject that a court could not
Speaker 1: pursue in the same way that if it's what do
Speaker 1: they call it, the conclusive and preclusive powers of the
Speaker 1: president acting clearly within his Article two stated powers or
Speaker 1: congressionally authorized powers, there is absolute immunity. I don't think
Speaker 1: it falls under absolute immunity based on reading Trump versus
Speaker 1: the United States. Maybe I'm wrong, because you know, I'm
Speaker 1: not a lawyer, but what I take away from this
Speaker 1: is that what saves a president from being even called
Speaker 1: in front of a court to have to explain himself
Speaker 1: is the notion that doing so would hamper his exercise
Speaker 1: of his core powers. And if it's not that, if
Speaker 1: it's not that absolute immunity, then you've got to worry
Speaker 1: about what does the court call it? Context, content, context,
Speaker 1: and facts. And in this case, I think the court
Speaker 1: would have to a court if they brought a criminal prosecution,
Speaker 1: they would have to at the very least determine whether
Speaker 1: or not this was an official act of the president
Speaker 1: that is part of his core powers, or whether it's
Speaker 1: what do they call the there's a word, I forget it,
Speaker 1: the kind of not quite in the middle of core powers,
Speaker 1: and those don't carry the same level of absolute immunity.
Speaker 1: Am i am I misunderstanding that?
Speaker 4: No, So I think I.
Speaker 2: Think give the constitutional law about right.
Speaker 4: So the absolute immunity applies to.
Speaker 2: The functions of the president that fall under his uh
Speaker 2: you could say soul Article two powers. Then there are
Speaker 2: you could say, powers that are I think the phrase
Speaker 2: in the depinion might be concurrent, you know, that are
Speaker 2: kind of shared with Congress or which Congress deleicated to
Speaker 2: the president.
Speaker 4: And that's where then the courses.
Speaker 2: You have a presumption of immunity, but that presumption can
Speaker 2: be overridden.
Speaker 4: Now this is the thing.
Speaker 2: So I think just two points one on the facts
Speaker 2: and one on the law. You know, on the facts.
Speaker 2: You know, I'm not sure that the group said.
Speaker 4: So there's two criminal deferrals going on here.
Speaker 2: And actually I think the one that you know, Gaberd
Speaker 2: is I think, really exaggerating what she's got here. She's
Speaker 2: definitely got something, but I think she's exaggerating the importance
Speaker 2: of it. I find her very unreliable in her judgment
Speaker 2: about this. But she's obscuring the more important referral, way,
Speaker 2: way more important referral, which is by the CIA. So
Speaker 2: the week before gaber did this, John Radcliffe, who's the
Speaker 2: director of the CIA and a former prosecutor, he was
Speaker 2: a prosecutor in Texas, was an assistant was during Texas.
Speaker 4: He has the CIA.
Speaker 2: Has referred Brennan and Clapper for prosecution by the Justice Department.
Speaker 4: That is way more serious.
Speaker 2: I am not aware of any time that the CIA
Speaker 2: has ever referred a former director or a former d
Speaker 2: and I for prosecution.
Speaker 4: That's incredible, actually if you think about it.
Speaker 2: And because but Gabert has totally taken the spotlight and
Speaker 2: is in fact undermine I think the seriousness of the
Speaker 2: CIA referrals because she's pushing this idea that Obama committed
Speaker 2: treason or that Clapper and Brennan and Komi committed trees
Speaker 2: and based on actually, I think a fairly thin read
Speaker 2: of evidence. What I would really want to know is,
Speaker 2: what is it that the CIA, which didn't release, you know,
Speaker 2: one hundred and twenty pages, right, the CIA just I
Speaker 2: think announced in a like a four page memo or
Speaker 2: a five page memo that there were serious problems with
Speaker 2: the way the Russia hoaks got introduced into our intelligence
Speaker 2: agencies and intelligence reports, and they were referring those guys
Speaker 2: for prosecution. That's a really big deal, right, That's like, right,
Speaker 2: is like the oss E were going to refer you know,
Speaker 2: Donovan wild Bill Donovan for prosecution.
Speaker 4: That's really incredible that they did that.
Speaker 2: But people have missed that because you know, they're all
Speaker 2: focused on the shiny thing Gabbard's throwing around.
Speaker 4: One more thing about the facts is oh, go ahead.
Speaker 1: Before you go on. I did, before you go on
Speaker 1: with your next point. I want to hear it. But
Speaker 1: let me just let me let me be political here
Speaker 1: for a moment about that, and say, let's assume that
Speaker 1: maybe Trump and Trump's best attorneys and so forth, are
Speaker 1: overlooking this whole thing, and Tolsey Gabbard puts out pages
Speaker 1: and pages and pages of these sorts of things, and
Speaker 1: that's what everybody's talking about. But in the meantime, an actual,
Speaker 1: factually based prosecution of really in many ways, however you
Speaker 1: look at it, whatever you say to Obama about Obama
Speaker 1: and this, Brennan and Clapper are just the most despicable
Speaker 1: creatures on the planet. And to get them and to
Speaker 1: get clean house by prosecuting them and perhaps even getting
Speaker 1: a conviction against them would be so so cathartic for
Speaker 1: you know, getting rid of the worst excesses of the
Speaker 1: deep state. Maybe this is all planned this way. I'm
Speaker 1: just throwing that out.
Speaker 4: There, John. I. I mean, I think what's going on?
Speaker 1: You see the argument?
Speaker 2: No, But what I think if I were going to
Speaker 2: try to interpret what was going on, I think, you know,
Speaker 2: Ratcliffe is a very serious guy, and he's apparently doing.
Speaker 4: A really good job at the CIA.
Speaker 2: You know, he's cleaning house, but he's doing it in
Speaker 2: a responsible way. You never read about him, right this
Speaker 2: is the best thing for a SI director. You don't
Speaker 2: read or hear about them very often right there. But
Speaker 2: they're hopefully they're up to no good with regard to
Speaker 2: our enemies. And you know, so to refer you know,
Speaker 2: the former director of the CIA for Criminal Prosecution and
Speaker 2: the heads of the CIA now is a former prosecutor.
Speaker 2: That means, you know, like someone who knows what the
Speaker 2: just farmant does and what really qualifies her prosecution took
Speaker 2: a hard look at this and sent it over.
Speaker 4: That's a really big deal.
Speaker 2: I think Gabbard, who's the d and I who you know,
Speaker 2: a few weeks ago people thought Trump was going to
Speaker 2: fire her, saw this and decided she needed to insert
Speaker 2: herself in some way into this because she's on the
Speaker 2: outs with Trump, and so what does she do she?
Speaker 2: I think because of that, it encourages her to say
Speaker 2: things which I think are just over the top, you know,
Speaker 2: like that Obama committed treason. I don't think he committed,
Speaker 2: even on the facts that she alleges it. I don't
Speaker 2: think he could. You could convict them of trees and
Speaker 2: or they committed treason.
Speaker 4: I think he, you know, had this bias.
Speaker 2: All remember back in December of twenty sixteen, people like,
Speaker 2: how did Trump win?
Speaker 4: It seems impossible? Blah blah blah blah, so he said to.
Speaker 2: His intelligence people, see if the Russians were involved, I
Speaker 2: don't think that's treason.
Speaker 1: That's not exactly how it all happened. Well that's the problem,
Speaker 1: all right.
Speaker 3: Let's do this as an exit. Question was first of
Speaker 3: all simple my question. I thought charge of treason had
Speaker 3: to involve actually doing something on behalf of a foreign government.
Speaker 2: And you have to let the war against the United
Speaker 2: States or gave given aid and comfort to our enemies.
Speaker 4: How could Obama under these facts be guilty of that?
Speaker 2: And you have got two witnesses who both witnessed the
Speaker 2: same overt act of treason.
Speaker 3: That was my second question. I mean, that's such a
Speaker 3: I mean, what were the maybe know the answer to
Speaker 3: this that you can do it briefly? What was the
Speaker 3: reasoning for being so specific about that's so interesting? Right?
Speaker 4: This is so interesting.
Speaker 2: Yeah, because the Crown in England was prosecuting a lot
Speaker 2: of people for treason, and so this is really interesting.
Speaker 2: This is the only crime that is defined in the Constitution,
Speaker 2: right and the reason why and this is from an
Speaker 2: opinion by Chief Justice Marshall.
Speaker 4: This is great in the bur trial.
Speaker 2: So the first interpretation of this clause, the first treason
Speaker 2: prosecution is brought against Aaron Burr for his effort to
Speaker 2: raise a rebellion in Louisiana. The burg Conspiracy gives rise
Speaker 2: to this major opinion by Chief Justice Marshall, and he says,
Speaker 2: one reason that the Founders wrote this provision into the
Speaker 2: Constitution was to take away from Congress and the President
Speaker 2: the ability to find treason because the British had abused it.
Speaker 4: Think about what the British.
Speaker 2: Would have done if the revolution had failed. They would
Speaker 2: have prosecuted and hung every single member of the Founding
Speaker 2: of the Founding leaders for treason, right, So they want
Speaker 2: and they wanted to make it hard to prove, and
Speaker 2: they wanted to make sure that the political politicians couldn't
Speaker 2: change it.
Speaker 4: So they stuck it in the.
Speaker 2: And so actually, remember Burr undeniably goes down to Louisiana
Speaker 2: and he tries to raise a rebellion and he's still
Speaker 2: equitted of treason because they couldn't find two witnesses who
Speaker 2: saw him do anything over it.
Speaker 3: Hmm, interesting, I love it.
Speaker 4: I love it.
Speaker 3: Yeah, story, well, I am I'm not sure about the
Speaker 3: trees and angle. I am with Lucretian saying I'd love
Speaker 3: to see some really serious accountability for Brennan and Clapper
Speaker 3: and all those other things. Mean too.
Speaker 2: I mean, you know, there you could you could argue
Speaker 2: that this is a good case for a special council,
Speaker 2: although there already was one with John Durham. But I
Speaker 2: think this is there's something here that should be gone
Speaker 2: to the bottom of it. I just don't think it's
Speaker 2: wise to say Obama committed trees.
Speaker 3: Yeah, okay, could be all right, Let's go to break
Speaker 3: and then we will come back John with some thoughts
Speaker 3: from you on executive power and continue the same subject.
Speaker 3: So don't go away, everybody, We'll be right back. Okay,
Speaker 3: we're back, and John, I'm gonna throw the microphone you
Speaker 3: what's on your mind this week? What do you want
Speaker 3: to what do you want us to wrestle with you about?
Speaker 2: I mean, we got to talk about the symposium that
Speaker 2: Steve and I did this week and Civitas, which I
Speaker 2: thought was really interesting. Oh come on, I mean you
Speaker 2: went on at great length. You only mentioned the Clean
Speaker 2: Air Act three times in your.
Speaker 4: Piece, which is a real record for you. Come on,
Speaker 4: I mean this.
Speaker 3: Is there was much longer than mine.
Speaker 2: Yeah, but it didn't mention the Clean Air Act. Every
Speaker 2: time you mentioned it, you lose one hundred birds on
Speaker 2: your limit.
Speaker 4: I mean, come on.
Speaker 2: So here's the It was a fun It was a
Speaker 2: fun exercise that you know. Civitas asked us to do
Speaker 2: a uh do a symposium on was something like virtue
Speaker 2: and the American presidency I think was the initial topic,
Speaker 2: and so, uh, you know.
Speaker 4: Steve wrote his usual.
Speaker 2: You know, I thought, well, first there's Steve Hayward, and
Speaker 2: then there's Gary Schmid and Joe Bassett, also Straussians, and
Speaker 2: then you've all evn who I think, I don't know
Speaker 2: if he's strictly a Straussian, but he's Straussian adjacent, I
Speaker 2: would say. And so I thought, yeah, no, I mean
Speaker 2: I think he got all these political theorists, oh sorry,
Speaker 2: political philosophers, and so I expected, I expected all of
Speaker 2: you to say, uh, you know, the Republican virtue must
Speaker 2: be in the person who's the president. And that's what
Speaker 2: the founders would have thought, which I think is actually true.
Speaker 2: The founders expected that the first president would be the
Speaker 2: most virtuous amongst them, among them, which was who was
Speaker 2: George Washington. So I thought I would have fun and
Speaker 2: I wrote a I tried to find a contrary example.
Speaker 2: So I thought of who was a very successful president,
Speaker 2: who's not a very virtuous person. The fact was, you
Speaker 2: might have had anti virtues of those days, and that
Speaker 2: was Andrew Jackson. I think about Andrew Jackson before he
Speaker 2: became a president, had shot people in duels, had killed
Speaker 2: Indians in the variety of Indian wars, had saved the country,
Speaker 2: you know, the Battle of New Orleans in the War
Speaker 2: of eighteen twelve. But then took his army and decided
Speaker 2: to invade Florida against the orders of president, against the
Speaker 2: orders of the president at the time. And then when
Speaker 2: he was criticized, I think he wrote President Monroe something
Speaker 2: along the lines of do you want me.
Speaker 4: To give it back?
Speaker 2: So he just took Florida because he thought it ought
Speaker 2: to be part of the United States, disobeying the chain
Speaker 2: of command, and was, you know, if you read the
Speaker 2: accounts of him, temperamental, right, vertuperative, you know, combative, ill tempered,
Speaker 2: But I thought was a great president. One example of this,
Speaker 2: and the difference between I think the virtue of George
Speaker 2: Washington compared to the rough and tumble of Andrew Jackson
Speaker 2: was their responses to rebellion so in Washington's time, you
Speaker 2: have the Whiskey Rebellion. Washington leads troops. He's the first
Speaker 2: and only president to ever lead troops in the field
Speaker 2: as commander in chief. He gets on a big white
Speaker 2: horse and leads the column of troops up.
Speaker 4: To western Pennsylvania on.
Speaker 2: The expectation that they would all disperse if they just
Speaker 2: saw him, and they did. And then he dropped the
Speaker 2: prosecutions of anyone involved and released everyone from prison who'd
Speaker 2: been arrested. Andrew Jackson went faced with a nullification crisis
Speaker 2: from South Carolina, was about to raise an army of
Speaker 2: ten thousand volunteers, which he also was going to go
Speaker 2: into South Carolina with the troops, and he was heard
Speaker 2: to have said that he was going to personally hang
Speaker 2: the governor of South Carolina from the tallest tree he
Speaker 2: could find in Charleston. Very different attitude, George Washington, but
Speaker 2: right he put that. You know, the nullification crisis never
Speaker 2: came down to it. The South Carolina gave way in
Speaker 2: the end. And I think I think Jackson transformed the
Speaker 2: presidency from this kind of you know, you know, classic
Speaker 2: Republican virtue to break the tribune of the people the
Speaker 2: you know, the the pub essitary president who claimed that
Speaker 2: he was the representative of the people and was going
Speaker 2: to fight the Supreme Court and fight Congress and sometimes
Speaker 2: would fight dirty in order to protect the people. You know,
Speaker 2: if there's any president who I'm sure Trump models himself after,
Speaker 2: it would be Andrew Jackson. That was such a much
Speaker 2: better story than whatever Steve wrote about. I already forget
Speaker 2: what Steve Essay said. Steve, you you defender, Steve, what
Speaker 2: you tell them what you're Steve, you tell them plagiarized?
Speaker 3: No, no, I quoted people, But I know that drive.
Speaker 1: The title what like a poor cover banding teaming.
Speaker 3: Yeah, oh no, that was the That was not my headline.
Speaker 3: That was the headline that Richard picked for the site.
Speaker 3: I forget what I I forget what my original headline was.
Speaker 1: No.
Speaker 3: I wrote for the more abstract treatment of the ambiguity
Speaker 3: of executive power as Harvey Mansfield understood it in Taming
Speaker 3: the Prince, which I still think is the best book
Speaker 3: on the long arch of political philosophy as it bears
Speaker 3: on the exercise of executive power. That book explains why
Speaker 3: and how you should understand the actions of Jackson. I
Speaker 3: did talk about how statesmanship used to be. Statesmen and
Speaker 3: statesmanship were words you used to hear historians, journalists, and
Speaker 3: political scientists use until about fifty years ago, when suddenly
Speaker 3: academics turned on the phrase because it's an egalitarian, it's sexist,
Speaker 3: you know, states men really stupid things like that, And
Speaker 3: so now you never see the word used anymore, and
Speaker 3: it's thought to be you know, subjective, unscientific, all the rest.
Speaker 3: So I pushed back on all that, and although I
Speaker 3: will say, if we had a more robust understanding of
Speaker 3: the latitude of executive power, we wouldn't need to clean
Speaker 3: Air Act. Which, by the way, if listeners you don't
Speaker 3: realize it does not appear in the article at all.
Speaker 3: John just sees it in between the lines because he's
Speaker 3: learning esoteric reading.
Speaker 2: John, Right, you know we have to he's teaching me
Speaker 2: what to be afraid of.
Speaker 3: Yeah, yeah, there you go. Right. Anyway, it's you know,
Speaker 3: I'm trying to revive the term and the category it
Speaker 3: connects to prudence, which I know you don't understand John either.
Speaker 3: You think that was just cost benefit analysis or something ridiculous. Yes,
Speaker 3: but no, that's completely wrong. But I will say this
Speaker 3: about one point about Jackson, and this was the point
Speaker 3: of view all Evind's essay in the same package. And
Speaker 3: I guess Gary, Gary and Joe's article two is ultimately
Speaker 3: we judge the constitutional executive, that is, the American President,
Speaker 3: by how faithfully they understand and defend the Constitution. And
Speaker 3: so when you say, you know Jackson contested with the court,
Speaker 3: or how did you put it stronger than that? But
Speaker 3: the point is is that he didn't defy the courts.
Speaker 3: But what he said was, well, the most famous one
Speaker 3: is a veto message for the National Bank, and he said,
Speaker 3: I don't care if the Supreme Court says the National
Speaker 3: Bank is constitutional. I don't think it is. And my
Speaker 3: constant titutional power is I get the veto legislation from
Speaker 3: Congress extending the National Bank, and I'm going to do
Speaker 3: that because guess what, Presidents get to interpret the Constitution too.
Speaker 3: With this became known as right, the theory of a
Speaker 3: coordinate review, which Lincoln grabbed hold of. Right. I mean, Lincoln,
Speaker 3: a very different type of person than Jackson in a
Speaker 3: lot of ways, had a lot of regard for Jackson
Speaker 3: on exactly this point. Forget his colorful personal life, just
Speaker 3: as most of us overlook a certain aspect of Trump's
Speaker 3: carryings on over the decades, and noticed that he was
Speaker 3: a defender of the Constitution in ways that I think
Speaker 3: are quite important and useful and lasting.
Speaker 2: There seeing my article is so much more interesting than yours,
Speaker 2: just a history lesson Mine was philosophy, Right.
Speaker 3: Lucretia, you want to thump either one of us or
Speaker 3: you just want to be weekend? Okay, All right, well,
Speaker 3: then let's just go another quick break. I mean we'll
Speaker 3: have I'll have links to these articles in the show notes,
Speaker 3: and let's just take a quick break and then we'll
Speaker 3: come back, and I think we we'll see a theme
Speaker 3: actually with all three of these topics today when we
Speaker 3: come back right after these messages. All right, now, it's
Speaker 3: my turn to bring up something that caught my eye
Speaker 3: this week, and it's a Law Review article and some
Speaker 3: of their time, john we got to talk to you
Speaker 3: about what's wrong with Law Review article style, and both
Speaker 3: Lucretian and I think it's nuts the way the footnotes
Speaker 3: go on forever and all the rest of that. But
Speaker 3: never mind, interesting law review article from a young guy
Speaker 3: that Lucretian I know, and I think Johnny might have
Speaker 3: met named a Dion Kathawa. He's a graduate of University
Speaker 3: of Notre Dame Law School, where he studied with Amy
Speaker 3: Cony Barrett when she was on the faculty there. He's
Speaker 3: clerked at the Michigan Supreme Court and for some federal
Speaker 3: judges and has this article out called we the People
Speaker 3: are the last word on the meaning of our Constitution
Speaker 3: and he makes a pretty bold argument that I'm not
Speaker 3: sure I'm entirely down with. And the way I'll summarize
Speaker 3: it as this. Essentially, what it says is Congress ought
Speaker 3: to have the power to override Supreme Court decisions they
Speaker 3: think is wrong, because Congress is the best vehicle in
Speaker 3: our political system to express the closest to the people.
Speaker 3: And his whole point is is that, I mean, the
Speaker 3: way I put it in class to students is the
Speaker 3: Constitution does not begin we the lawyers or we the judges.
Speaker 3: It's we the people. And Lucretia likes to draw our
Speaker 3: attention to that passage in was it Federals fifty one
Speaker 3: or fifty five? It says ad a dependence on the
Speaker 3: people is the primary safeguard of Republican government. Is that
Speaker 3: how you go ahead?
Speaker 1: No context on that quote is a little bit important.
Speaker 1: Then the context is it's the whole discussion of the
Speaker 1: checks and balances on the separation of powers that are
Speaker 1: actually themselves. When it comes to the powers that are
Speaker 1: given into the three branches of government in the Constitution,
Speaker 1: the anti federalists are quite upset about the fact that
Speaker 1: they're not clearly defined according to the branch's powers, according
Speaker 1: to the nature of the powers that they that branch
Speaker 1: is supposed to represent. So why are legislative powers, for instance,
Speaker 1: given to the president. You don't have a real separation
Speaker 1: of powers. So that's what Madison is taking up, and
Speaker 1: he says, going through all of this, and you know,
Speaker 1: talking about how it is that each of these Czechs
Speaker 1: can actually help to prevent tyranny, tyranny and government. And
Speaker 1: the biggest concern, of course in Federalists forty seven through
Speaker 1: fifty one is legislative supremacy or legislative tyranny. And so
Speaker 1: most of the checks and balances that the Constitution brings
Speaker 1: to bear are brought against the legislative branch. You know,
Speaker 1: things like a by camera legislature and the presidential veto,
Speaker 1: and you could go on. When Madison makes that ourment.
Speaker 1: He says, a dependence on the people is, no doubt
Speaker 1: the primary control on government. But experience has taught mankind
Speaker 1: the necessity of auxiliary precautions. So a dependence on the people,
Speaker 1: not a dependence on the people's representatives. That's where I
Speaker 1: think our good friend Dionne is wrong. All of his
Speaker 1: justifications and rationale leading up to it are absolutely okay.
Speaker 1: My argument, just so you know, Steve I said, I I, I,
Speaker 1: you know, articulate it as briefly as I can. My
Speaker 1: argument is, and John's going to go nuts over this,
Speaker 1: that the Supreme Court should in fact protect our rights.
Speaker 1: It is, according to Lisa, federalist papers up to Congress
Speaker 1: to define our rights. But you know, Marshall's argument about
Speaker 1: the judiciary is, you know, that's our job basically is
Speaker 1: to say what the constitution means. But he also says,
Speaker 1: don't ever think that because we're deciding in favor of
Speaker 1: the constitutions because we're superior. It's because the Constitution is superior. Anyway,
Speaker 1: back to the point is, over.
Speaker 4: The years, I have no dispute with anything.
Speaker 2: I know.
Speaker 1: This is what I think you're going to disagree with John.
Speaker 1: Just so you know, quick, and I'll be quick. I'm sorry.
Speaker 1: I believe that over the years, the American people and
Speaker 1: even the two branches of Congress have become much too
Speaker 1: deferential to the Supreme Court to be the final arbiter,
Speaker 1: to the point where the people themselves have given up
Speaker 1: what Madison kind of said was their sacred responsibility, which
Speaker 1: was ultimately the Supreme Court is the same kind of
Speaker 1: failed human being, the non angel that Madison speaks of,
Speaker 1: and is easily as as capable of misinterpreting the Constitution
Speaker 1: either of the other two branches are. And it's up
Speaker 1: to the people exercising their sovereign power to keep our
Speaker 1: government from becoming a tyranny. Now, we can't expect that
Speaker 1: to happen every single time government does something wrong. And
Speaker 1: it's nice to have, as Madison put those auxiliary precautions.
Speaker 1: But I think that this is the point, John, I
Speaker 1: think you'll disagree with. Is the Supreme Court doing that
Speaker 1: all of these years, making decisions about whether or not
Speaker 1: our COVID policies were too we're taking away religious freedom
Speaker 1: rights or this. You know, Just as we could go
Speaker 1: on and on with examples, the American people have stopped
Speaker 1: believing it's their job, and they defer much too easily
Speaker 1: to the Supreme Court to determine what their rights are.
Speaker 2: That's my disagree with that. We've definitely period judicial supremacy.
Speaker 2: And I'm a departmentalist and I think that's you know,
Speaker 2: the coordinate branch construction is what Steve called it. Well,
Speaker 2: let me give jackson view and the link of view
Speaker 2: I think is correct. But that's a view of the
Speaker 2: people too. They don't trust themselves interpret the Constitution and
Speaker 2: they'd rather have the Supreme Court do it, and they
Speaker 2: don't challenge it enough. That's not the Court's fault, that's
Speaker 2: the American people's fault.
Speaker 3: Okay, So let me develop this argument. Yeah, you jump
Speaker 3: the gun a little bit on. I want to get
Speaker 3: a little bit more of the architecture's argument fully out,
Speaker 3: and I may move some of this around because that
Speaker 3: was a well okay. His argument is built on the
Speaker 3: sovereignty of the people and the consent of the government,
Speaker 3: and he says that, you know, Congress is the closest
Speaker 3: to the people. He does, by the way, he does
Speaker 3: give a footnote giving a shout out to our natural
Speaker 3: law discussion on the political question. Substack so that was nice.
Speaker 3: So we show up in this article.
Speaker 2: Also also bizarre that anyone would cite anything on our
Speaker 2: substack in a Larview article.
Speaker 3: Oh come on, you guys, Well I should have directed
Speaker 3: your attention to that, since I think you guys just
Speaker 3: skimmed this. There is one part I think, okay, well
Speaker 3: you okay, one part. One part of the article I
Speaker 3: think is odds He says, Hey, the Canadians do something
Speaker 3: like this, and I'm never a fan of Canadian constitutionalism.
Speaker 3: I'll just put that out there for skied. Okay, okay.
Speaker 3: But then you know he does in good sort of
Speaker 3: Tomistic fashion, because Dion's a devout Catholic. He does take
Speaker 3: up objections the way Aquinas would. And one of them,
Speaker 3: the most important one, I think, is uh well twofold
Speaker 3: one is is that the reason we have these countermajoritarian
Speaker 3: features like judicial review is precisely to be a bulwark
Speaker 3: against transient majorities, you know, the passions of the of
Speaker 3: the mob. That's always been the downfall of pure democracies. Right.
Speaker 3: And his counter argument back is one that I thought
Speaker 3: is pretty bold. I'll just quote him here. He says
Speaker 3: that the political branches are more subject to popular pressure. Is, however,
Speaker 3: a point in favor of my basic argument. Boy, well
Speaker 3: he's you know, good for him, he's not backing down
Speaker 3: on all this. But I don't know, I just make
Speaker 3: you don't.
Speaker 2: Really like, why bother have a written constitution? If he's right,
Speaker 2: why not just have a British constitution?
Speaker 3: Yeah? Right, that can be amended by the House of Commons.
Speaker 2: Right, Yeah, And you just have to be clear what
Speaker 2: you're doing is legislation or constitution making. But right, the
Speaker 2: whole point of writing it down is to prevent majorities
Speaker 2: or the or even put aside trans majority. Sometimes you
Speaker 2: just don't want the people to be able to do
Speaker 2: something unless you're really really sure a super majority that
Speaker 2: people want to what's wrong with that?
Speaker 1: Yeah, well, it's not so much we would have to
Speaker 1: stop that. It's not that I disagree, But that's not
Speaker 1: the whole story, John, It's not so much a supermajority,
Speaker 1: even a super majority, can act unconstitutionally in the sense
Speaker 1: that the only genuine constitutional appropriate Listen, I can explain
Speaker 1: the only legitimate activity of a majority or a supermajority
Speaker 1: is when they act in the public interest, and when
Speaker 1: they do so in a way that does not deprive
Speaker 1: any size minority of their fundamental rights. That's what makes
Speaker 1: legitimate government, and majority rule is an imperfect way of
Speaker 1: the sovereign people governing themselves. The entire Constitution, as you
Speaker 1: put it, I'll put it a little differently. It's there
Speaker 1: to make sure that the majority doesn't run away with
Speaker 1: the rights of other citizens or the permanent and aggregate
Speaker 1: interests of the community.
Speaker 2: Well, so you're saying there are some things that you
Speaker 2: cannot do through the constitutional amendment process. So, for example,
Speaker 2: suppose that in the constitutional amending process, the core the
Speaker 2: people were to eliminate, say, juri trial, they just said,
Speaker 2: we're not going to have dury trial rights. Very few
Speaker 2: countries have them anymore. We're going to just have We're
Speaker 2: just going to do it the way everybody else in
Speaker 2: the world does it with a judge jury trial. Right,
Speaker 2: Are you saying that the people are unconstant would be
Speaker 2: violating the Constitution by changing the Constitution through two thirds
Speaker 2: what three quarters?
Speaker 4: I don't I don't think.
Speaker 1: I'm not saying that about jury trials. But what I
Speaker 1: will say is that the people would be violating fundamental
Speaker 1: natural law by repealing the Thirteenth amendment. We've had this
Speaker 1: discussion before.
Speaker 2: What about So you would say there are certain things
Speaker 2: that are in the constitution which cannot be changed, I say.
Speaker 4: The amendment process. Yeah, just said it would be unconstitutional.
Speaker 1: I think of your favorite person, John's Thomas Jefferson in
Speaker 1: his What Is It Is farewell is inaugural address where
Speaker 1: he says the majority rule to be rightful, must be
Speaker 1: reasonable and that the minority have how executive I forget
Speaker 1: exactly how this the minority rights are respected. That's the
Speaker 1: definition of legitimate government. Now, of course, everything, every single
Speaker 1: law that's passed by some kind of majoritarian process is
Speaker 1: going to disadvantage a minority. It's always going to do that.
Speaker 1: You know that. That's the nature of laws is that
Speaker 1: they discriminate, they create classes. What our constitution requires, and
Speaker 1: what I think legitimate government requires or natural law requires,
Speaker 1: is that those that those actions. Sorry, I just got
Speaker 1: a notification that the border patrols of my neighborhood looking
Speaker 1: for some until lock my door. Sorry, that's so sorry, Steve.
Speaker 1: That just completely threw me.
Speaker 4: Time law enforcement has visited Lucretia.
Speaker 3: Actually so so while Lucretia is finding out if ice
Speaker 3: is surrounding her house because it's a sanctuary, because she's
Speaker 3: been secretly I think, a sanctuary for migrants.
Speaker 2: Right again, they're just taking up their old positions, as
Speaker 2: they say, the.
Speaker 3: Military, right right. Well, look, let me bring up an
Speaker 3: example that I've got a surprise, dion or I would
Speaker 3: challenge deon and by the way, I have told him
Speaker 3: that we will try to have him on to make
Speaker 3: his case under butt us at some point down the
Speaker 3: road when we can schedule a time, which has been
Speaker 3: hard lately. You remember this from more than thirty years ago, now,
Speaker 3: I think when the Supreme Court struck down statutes banning
Speaker 3: flag burning as a violation of the First Amendment, Congress
Speaker 3: immediately passed a new law in the way you would
Speaker 3: think Diana is suggesting, which is right. Congress is going
Speaker 3: to say, no, Court, we're sorry, we think you're wrong here,
Speaker 3: and that law was immediately challenged and the court said, no,
Speaker 3: we're not impressed. That's against the First Amendment. Also right now,
Speaker 3: of course, as I have said before, nobody thought nobody
Speaker 3: had the wit to use the Clean Air Actian banned
Speaker 3: flag burning against pollution. But nonetheless, but I mean, you know,
Speaker 3: isn't that First of all, do you think that? I mean,
Speaker 3: I mean, there's two questions here, and nic could go
Speaker 3: on a long time. One is, isn't that an exercise
Speaker 3: of you know, what Dean is saying, is the Court
Speaker 3: saying no, we are Congress saying we think the Supreme
Speaker 3: Court's wrong and we're going to override them. By the way,
Speaker 3: I think there was a lopsided vote on the flag
Speaker 3: burning I think it passed the House and Senate by
Speaker 3: big majorities.
Speaker 2: Oh yeah, I actually have to confess I worked on
Speaker 2: it when I worked in Congress.
Speaker 3: Oh did you okay? Okay? And then the second one
Speaker 3: is what what do we think of that? I mean,
Speaker 3: I think, without reopening the whole question of First Amendment jurisprudence,
Speaker 3: I think flag burning is expression and not speech, and
Speaker 3: is easily within the reach of the police power of government.
Speaker 3: But that's been a losing argument even with Justice Scalia.
Speaker 2: Right, especially Justice Scilly, he gave the fifth he provided
Speaker 2: the fifth vote to say uphold flag burning right as
Speaker 2: protected by the First I know, I think what the
Speaker 2: better case, a more meaningful case, because this whole flag.
Speaker 4: Burning thing is very symbolic.
Speaker 2: Obviously, it's a religious freedom restoration actor where right the court,
Speaker 2: the Congress has tried to overrule, unsuccessfully, the court's decision
Speaker 2: that right religious minorities don't have a right to seek
Speaker 2: an exception from generally applicable laws like the drug laws,
Speaker 2: for example, in their religious practices. So I look, there's
Speaker 2: I think there's a number of problems with this argument.
Speaker 2: And this is not a new argument, mind you. I mean,
Speaker 2: this is an argument that the progressives came up with
Speaker 2: that Teddy Roosevelt, yeah, trust Congress to yeah, yeah, they
Speaker 2: wanted Congress or referendum to over you know, I think
Speaker 2: they wanted sixty percent or fifty five percent, But some
Speaker 2: proposals were just a simple majority should be able to
Speaker 2: overrule Supreme Court decisions.
Speaker 4: So this is not a new idea.
Speaker 2: In fact, there's some very radical left wingers who like
Speaker 2: this idea, like Bruce Ackerman is someone who also you know,
Speaker 2: goes around making these arguments. But look, first, even if
Speaker 2: you thought this was true, why do you think Congress
Speaker 2: is a more authoritative right vehicle for the expression of
Speaker 2: the views of the people.
Speaker 4: Why wouldn't it be the president? Right?
Speaker 2: What I mean, why can't the president overrule Supreme Court
Speaker 2: opinions instead of Congress if he were, if this argument
Speaker 2: were correct. I mean, there's a lot of articles in
Speaker 2: political science about how how Congress is dysfunctional, how it
Speaker 2: often reverses Lucretia's worry. It's not that the majority imposes
Speaker 2: costs on the minority. Congress often allows a minority of
Speaker 2: rent seekers to oppress the majority. Right, So why would
Speaker 2: we ever trust Congress to be the more authoritative voice
Speaker 2: of the people. And I think that's what departmentalism really is,
Speaker 2: is that each of the branches is competing always to
Speaker 2: try to be closer to the view of the people
Speaker 2: and to protect the Constitution. I don't really see why
Speaker 2: Congress is the chosen institution. It may actually make more
Speaker 2: errors than the other two branches.
Speaker 1: The founders thought too, yes, founder side. And let me
Speaker 1: just say this, Steve. When I try to explain this
Speaker 1: to students in the most basic ways to discussing separation
Speaker 1: of powers and checks and balances, one of the examples
Speaker 1: that I like to use think about when a politician,
Speaker 1: when a member of Congress gets in front of the
Speaker 1: cameras and spouts off something and the almost inevitably invariably
Speaker 1: there will be a phrase the American people demand. The
Speaker 1: American people are not in favor the American people want.
Speaker 1: You know, they don't speak for the damn American people.
Speaker 1: But Madison warns us that they're going to pretend like
Speaker 1: they do at every opportunity. And boy, was Madison ever
Speaker 1: write about that. That's a I'm with John on this.
Speaker 1: I like the fact that there's this continuous struggle, this
Speaker 1: continuous you know, attempt at equilibrium between the three branches.
Speaker 1: And I don't think that the Supreme Court is the
Speaker 1: final authority in the Cooper versus a In style, for sure,
Speaker 1: But I also don't think that Congresses. And I think
Speaker 1: the Founding fathers were most worried about Congress in that
Speaker 1: respect because of its closeness to the people.
Speaker 2: Right, well, this guy, you know, this this author, if
Speaker 2: he's opposed by both me and THEU Cretia just.
Speaker 4: Right now, I'm.
Speaker 3: Gonna call him Neon Dion, after the other famous person
Speaker 3: named Dion. Look good for him for putting out a
Speaker 3: provocative argument. We will try and have him on at
Speaker 3: some point to rough him up and talk. He's a
Speaker 3: great guy. Uh yeah, and and uh yeah, no, he's great.
Speaker 3: He's going places he's but and good for him for
Speaker 3: putting out a bold argument like this. But with that,
Speaker 3: we'll take our last quick break and we'll close out
Speaker 3: the show with some new materials, so you won't want
Speaker 3: to go away, all right, Lucretia, you you managed to
Speaker 3: get enough bandwidth to summon up a few Babylon bees
Speaker 3: for us. Give us just.
Speaker 1: A few, but there some of them are quite appropriate.
Speaker 1: Uh Man, really excited for government to release all the
Speaker 1: government documentation of all the government's crimes.
Speaker 3: Yeah, that's pretty good.
Speaker 1: Okay, this one's my favorite. I do exempt myself from this.
Speaker 1: Very hypocritical of me, but uber to begin offering writers
Speaker 1: choice a woman driver or good driver. Yeah, disheveled Colbert
Speaker 1: seen holding up cardboard sign. We'll yell about Trump for cash. Yeah, okay,
Speaker 1: last two, and this is a there's so many more.
Speaker 1: Obama argues he can't be charged with treason since he
Speaker 1: wasn't born in America. Yeah, I know, give me one more.
Speaker 1: Obama awarded Nobel Peace Prize for exemplary work planning Russian
Speaker 1: collusion hoax.
Speaker 3: They finally found something adeed that he did, right, Yeah, yes, right, okay, okay, John.
Speaker 4: Well, I'm still I'm still in my.
Speaker 2: Reduced version of my sign off because, as you guys said,
Speaker 2: we need to think of another.
Speaker 4: One to add for mine.
Speaker 2: But yeah, mine is just always drink your whiskey, Meat
Speaker 2: and Steve.
Speaker 3: I have got new material. I asked chat GBT to
Speaker 3: provide us some lyrics if Lewis Carroll was a listener
Speaker 3: of this podcast, And here are two stanzas of a
Speaker 3: brilliant long poem, and then go as follows the jabberwonks
Speaker 3: of policy. Flee when whiskey and wit poor easily. No
Speaker 3: safe space, sillies, no shallow cheer, just bracing thought and
Speaker 3: twelve year gear. So till your glass the logic bound
Speaker 3: kin let the conversation splash within where speech is free
Speaker 3: and nonsense howers. It's the three whiskey happy Hour.
Speaker 4: I think that's pretty good.
Speaker 2: I thought that was really much better than usual.
Speaker 5: Bye bye, everybody, We'll see you all next week.
Speaker 4: Ricochet joined the conversation.
Speaker 3: M HM