WEBVTT 1 00:00:01.800 --> 00:00:04.080 Well Whiskey coming game. 2 00:00:11.480 --> 00:00:15.439 From power Line blog dot com and produced by Ricochet 3 00:00:15.480 --> 00:00:20.399 dot Com. This is the Three Whiskey Happy Hour with 4 00:00:20.519 --> 00:00:26.120 your bartenders Steve Hayward, John Yu and power Lines International 5 00:00:26.160 --> 00:00:28.359 Woman of Mystery Lucretia. 6 00:00:28.839 --> 00:00:33.439 Have you gotta giving let that whiskey love where you're 7 00:00:33.520 --> 00:00:35.359 being in love down and low? 8 00:00:38.240 --> 00:00:38.640 All right? 9 00:00:38.719 --> 00:00:42.359 After last week's Gonzo episode, this week is even stranger 10 00:00:42.560 --> 00:00:44.880 because this week it's going to be the three Keyanti 11 00:00:44.960 --> 00:00:49.320 Happy Hour. The band is back together in person. Lucretia, 12 00:00:49.359 --> 00:00:50.719 tell them where we are and what we're doing a 13 00:00:50.719 --> 00:00:51.119 little bit. 14 00:00:51.479 --> 00:00:56.200 We are in a beautiful castle from the twelfth century, 15 00:00:56.840 --> 00:00:59.799 continuously occupied by the same family. A family there is 16 00:00:59.840 --> 00:01:03.200 a very dear friend of all three of us, castle Decaciano, 17 00:01:04.599 --> 00:01:07.879 overlooking the entire Tuscan Valley, or I guess the southern 18 00:01:07.920 --> 00:01:09.040 part of the Tuscan Valley. 19 00:01:10.879 --> 00:01:13.120 John is staying in the big castle. 20 00:01:14.079 --> 00:01:17.239 Steve and his wife and I have been given the 21 00:01:17.719 --> 00:01:20.840 I believe as the servants quarters, which anybody would be thrilled. 22 00:01:20.599 --> 00:01:21.000 To live in. 23 00:01:21.319 --> 00:01:25.079 I finally agree with them that Aristotle's natural. 24 00:01:24.719 --> 00:01:28.599 Order of the universe has finally finally been achieved. 25 00:01:31.120 --> 00:01:33.640 John's room has been of those sort of Louis the 26 00:01:33.719 --> 00:01:37.640 fourteenth bedrooms with the curtains around the velvet and all 27 00:01:37.680 --> 00:01:37.879 of that. 28 00:01:38.159 --> 00:01:39.480 It's really quite a pressive. 29 00:01:39.480 --> 00:01:42.640 But we've been having the most extraordinarily lovely time our 30 00:01:42.680 --> 00:01:47.879 dear friend, the Baroness and her husband. We are the 31 00:01:47.959 --> 00:01:52.200 guests of that, and we were treated to a Downton 32 00:01:52.319 --> 00:01:58.519 Abbey style formal gala dinner last night, and it was 33 00:01:58.879 --> 00:02:01.840 most extraordinary. I don't know that any of us ever 34 00:02:01.920 --> 00:02:04.200 have or ever will experience anything like that. 35 00:02:04.159 --> 00:02:06.400 Again, so well we are. 36 00:02:06.680 --> 00:02:07.719 Oh John, you were going to know. 37 00:02:07.840 --> 00:02:09.280 I was just going to say, it was just like 38 00:02:09.639 --> 00:02:11.080 weekend at my house. 39 00:02:14.800 --> 00:02:18.919 It was likely I finally achieved the station to which 40 00:02:18.960 --> 00:02:20.639 I so ritually deserved. 41 00:02:21.000 --> 00:02:24.840 Except for the good food, the good wine, and deliveried servants, 42 00:02:25.319 --> 00:02:26.879 it was just like John's. 43 00:02:26.560 --> 00:02:29.919 House except for that. Except for that, it was just 44 00:02:30.280 --> 00:02:30.680 and it was. 45 00:02:30.639 --> 00:02:38.759 Just literally thousands of dollars in flowers and extraordinary wines, 46 00:02:38.800 --> 00:02:43.199 all made here at the castle, which is and I have. 47 00:02:43.120 --> 00:02:47.280 To say, you know, listeners may know that I still 48 00:02:47.360 --> 00:02:52.960 questioned Lucretia and Steve's strange adoration of the British monarchy. 49 00:02:52.479 --> 00:02:54.680 But I can get used to aristocracy. 50 00:02:54.800 --> 00:02:55.800 I can get used to it. 51 00:02:55.840 --> 00:02:58.080 I kind of see it's merits here while I'm in 52 00:02:58.120 --> 00:03:00.000 the castle, but we are. 53 00:03:00.319 --> 00:03:03.400 I mean, this is just the weekend idol between academic appearances, 54 00:03:03.560 --> 00:03:05.759 first in the lawn and then early in the week 55 00:03:05.840 --> 00:03:08.719 in Florence. Will turn to maybe a little of that 56 00:03:08.719 --> 00:03:10.639 towards the end. I think, first, though, John, we do 57 00:03:10.719 --> 00:03:14.719 have some listeners and readers who sent some questions in 58 00:03:14.919 --> 00:03:16.639 One of them is wanting to hear some from you 59 00:03:16.759 --> 00:03:19.319 or from all of us about the question of whether 60 00:03:20.280 --> 00:03:23.439 how recess appointments work, whether Trump is right that he 61 00:03:23.479 --> 00:03:25.719 can command the Senate to adjourn, or that the Senate 62 00:03:25.759 --> 00:03:28.719 should adjourn so we can install who he wants quickly 63 00:03:29.039 --> 00:03:33.240 to the resource recess appointment process. And I think, well, 64 00:03:33.280 --> 00:03:35.199 I'll stop there and ask you what you want to hear. 65 00:03:36.439 --> 00:03:36.759 Guys. 66 00:03:37.159 --> 00:03:41.400 I did post an article on National Review a week ago, 67 00:03:41.919 --> 00:03:47.919 roughly just a few days before mister Gates withdrew his nomination, 68 00:03:48.840 --> 00:03:53.159 and I know the pro Trump listeners may automatically be 69 00:03:53.199 --> 00:03:54.199 suspicious because I. 70 00:03:54.240 --> 00:03:55.840 Was critical of Gates. 71 00:03:56.159 --> 00:04:00.960 I would hope, actually that all conservatives would be dubious 72 00:04:00.960 --> 00:04:01.800 about his appointment. 73 00:04:02.120 --> 00:04:04.840 But my main argument was that this doesn't make sense. 74 00:04:04.919 --> 00:04:07.719 If you really want to reform the Justice Department and 75 00:04:07.800 --> 00:04:11.680 the FBI, like many of Lucretia and her supporters want to, 76 00:04:12.360 --> 00:04:15.400 because Gates would have been mired in one to two 77 00:04:15.479 --> 00:04:20.279 years of litigation fighting over whether his appointment was constitutional. 78 00:04:20.759 --> 00:04:25.079 It's actually an interesting question of constitutional first impression, This 79 00:04:25.439 --> 00:04:28.759 provision that Trump's transition team wanted to use has never 80 00:04:28.800 --> 00:04:32.720 been used before as far as we know. Sorry to digress, 81 00:04:32.759 --> 00:04:35.800 but there's actually a lot of There has been a 82 00:04:35.879 --> 00:04:40.360 lot of fighting and litigation about recess appointments, and actually 83 00:04:40.360 --> 00:04:43.720 the case got to the Supreme Court because President Obama 84 00:04:43.920 --> 00:04:47.639 actually had tried to really use this recess point prior 85 00:04:47.680 --> 00:04:50.120 to put as a very questionable people who never would 86 00:04:50.160 --> 00:04:52.079 have been confirmed by the Senate. 87 00:04:52.399 --> 00:04:54.240 But in short, the question, and it is discussed in. 88 00:04:54.240 --> 00:04:56.439 The Federal's papers, is what do you do when you're 89 00:04:56.439 --> 00:04:59.519 the president and you need to appoint people quickly and. 90 00:04:59.480 --> 00:05:00.720 The Senate not in session. 91 00:05:01.120 --> 00:05:03.959 In the eighteenth century, the Senate was expected not to 92 00:05:03.959 --> 00:05:06.240 be in session all the time because it took forever 93 00:05:06.800 --> 00:05:10.639 to get all the way from say Georgia, all the 94 00:05:10.680 --> 00:05:12.160 way up to Washington. 95 00:05:12.120 --> 00:05:13.959 By horse or by sale. 96 00:05:14.160 --> 00:05:17.360 So the Constitution has a provision in it and it says, 97 00:05:18.000 --> 00:05:21.639 it basically acknowledges the power of the president to make 98 00:05:22.319 --> 00:05:27.000 recess appointments, which are just as good as normal appointments, 99 00:05:27.720 --> 00:05:30.199 but they only last to the next session of Congress. 100 00:05:30.800 --> 00:05:34.040 The big constitutional question is what's a recess and when 101 00:05:34.120 --> 00:05:36.920 is a recess? How do you throw someone into recess? 102 00:05:38.439 --> 00:05:42.879 Presidents have often tried to say any time the Senate's 103 00:05:43.000 --> 00:05:50.079 not in session, it's a recess. The president, Well, let 104 00:05:50.079 --> 00:05:53.600 me say, the Supreme Court held in this case almost 105 00:05:53.680 --> 00:05:56.279 exactly ten years ago, not usually, the case called Noel 106 00:05:56.360 --> 00:06:01.800 Canning nine year oh yeah, versus NB, and the courts 107 00:06:01.839 --> 00:06:06.959 there said, anytime the Senate's out of session for ten 108 00:06:07.079 --> 00:06:11.439 days or longer, the President can make these recess appointments, 109 00:06:11.800 --> 00:06:15.120 which without the consent of the Senate. However, I point 110 00:06:15.120 --> 00:06:18.600 out that our friends, our buddies on the Court, led 111 00:06:18.600 --> 00:06:23.040 by Justice Scalia and joined by Alito Thomas and Chief 112 00:06:23.160 --> 00:06:27.199 Justice Roberts, took the and this would have doomed Gates's appointment, 113 00:06:27.560 --> 00:06:32.240 said no, No, a recess only occurs between one year 114 00:06:32.439 --> 00:06:37.040 of the Senate the first session and the second year 115 00:06:38.040 --> 00:06:38.759 of the session. 116 00:06:39.000 --> 00:06:39.839 For those who are. 117 00:06:39.680 --> 00:06:45.000 Into accounting, you say every Congress that we number the Congresses. 118 00:06:44.439 --> 00:06:45.600 By the election of the House. 119 00:06:45.639 --> 00:06:47.279 So there's like say, I worked in the one hundred 120 00:06:47.319 --> 00:06:50.199 and fourth Congress, which was the contract with American New 121 00:06:50.240 --> 00:06:52.920 Ginglich Congress, because that was the one hundred and fourth 122 00:06:52.959 --> 00:06:56.720 election for the House. And then each Congress has a session, 123 00:06:56.759 --> 00:06:59.199 a first session which is the first year, and then 124 00:06:59.240 --> 00:07:01.279 they take a break, and then a second session which 125 00:07:01.279 --> 00:07:03.000 is the second year of that. 126 00:07:03.439 --> 00:07:07.560 So the according to Jessics Scalia, he thought that a 127 00:07:07.600 --> 00:07:08.319 recess was. 128 00:07:08.319 --> 00:07:12.000 Only between the first year and the second year, and 129 00:07:12.000 --> 00:07:15.639 that any kind of break during the Senate's meeting and 130 00:07:15.680 --> 00:07:18.839 they let me tell you guys, as a former Senate stafford, 131 00:07:19.040 --> 00:07:22.319 they take a lot of breaks every holiday, and then 132 00:07:22.360 --> 00:07:24.720 there's they take breaks just to go on campaign. 133 00:07:25.000 --> 00:07:26.439 There's so many breaks. 134 00:07:27.240 --> 00:07:31.519 So jess Scalia's view was no, that none of those 135 00:07:31.519 --> 00:07:34.319 breaks are actually a recess within the meeting of the Constitution. 136 00:07:34.839 --> 00:07:38.920 If Scalia was right, Gates's appointment just wouldn't work. 137 00:07:39.079 --> 00:07:41.120 Couldn't be made it all? Yeah, it could be made 138 00:07:41.120 --> 00:07:41.399 it all. 139 00:07:41.480 --> 00:07:44.120 He'd have to wait until the end of twenty twenty 140 00:07:44.120 --> 00:07:49.160 five to make a recess appointment. So the Liberals, I'm sorry. 141 00:07:48.959 --> 00:07:49.480 Good question. 142 00:07:49.560 --> 00:07:52.879 Why couldn't it have been the recess in between the 143 00:07:54.120 --> 00:07:57.519 outgoing Congress and the incoming Congress. Why would that not 144 00:07:57.600 --> 00:07:58.519 be a recess. 145 00:07:58.160 --> 00:08:01.720 Because I'm not president yet comes in January fourth, Yeah, 146 00:08:01.800 --> 00:08:04.480 so it's very Yeah, you would think, oh, why couldn't 147 00:08:04.480 --> 00:08:06.399 you do a recess before at the very Yeah, right, 148 00:08:06.399 --> 00:08:07.240 that makes perfect sense. 149 00:08:07.360 --> 00:08:09.639 Yeah, there is no recess because there's no to that. 150 00:08:09.639 --> 00:08:11.519 We didn't bring the president in until March. 151 00:08:11.560 --> 00:08:14.959 Yeah, which actually makes even more sense under scale is right, 152 00:08:15.000 --> 00:08:17.240 because I think Congress would have been meeting for months 153 00:08:17.240 --> 00:08:20.319 and then the president kind of come in like here's 154 00:08:20.319 --> 00:08:22.839 the here's the here's the other thing that's trigging. This 155 00:08:22.879 --> 00:08:27.279 is my main point is there's another provision. This is 156 00:08:27.279 --> 00:08:29.199 the one that's never been used. So people have thought 157 00:08:29.199 --> 00:08:33.519 about these recess appointments. Teddy Roosevelt. So Congress, for example, 158 00:08:33.600 --> 00:08:37.080 famously tried to stop Teddy Roosevelt for making any recess appointments. 159 00:08:37.399 --> 00:08:39.360 So between the first year and the second year, they 160 00:08:39.360 --> 00:08:44.600 literally adjourned for one second, and Teddy Roosevelt claimed and 161 00:08:44.639 --> 00:08:46.519 he got away with he said, in that one second, 162 00:08:46.559 --> 00:08:47.360 you were in recess. 163 00:08:47.360 --> 00:08:48.720 So I appoint five hundred people. 164 00:08:50.519 --> 00:08:55.720 So that's called the Teddy Roosevelt's famous metaphysical recess appointments. 165 00:08:55.879 --> 00:08:59.879 Those so anyway, So the thing that's different is that 166 00:09:01.000 --> 00:09:04.000 there's another provision in the Constitution never been used before, 167 00:09:04.600 --> 00:09:08.759 in Article two, Section three, I think, which says, if 168 00:09:08.799 --> 00:09:13.559 the House and the Senate disagree about adjournment, then the 169 00:09:13.600 --> 00:09:17.360 President can choose the time. 170 00:09:17.120 --> 00:09:20.039 Of adjournment and how long it lasts. 171 00:09:20.440 --> 00:09:24.720 Now this if you agree Justice Briar was the author, 172 00:09:24.759 --> 00:09:27.919 of course, of the ten day rule, because the first 173 00:09:27.919 --> 00:09:30.919 thing Scalia goes is, why isn't nine days, Why isn't 174 00:09:30.960 --> 00:09:33.840 it eleven days? Where's this ten day figure you made up, Briar, 175 00:09:34.240 --> 00:09:38.360 which Briar actually didn't really respond to. So the interesting 176 00:09:38.399 --> 00:09:41.399 thing is that if you're with Justice Briar and you 177 00:09:41.480 --> 00:09:44.159 think you can make these recess appointments like at gates 178 00:09:44.919 --> 00:09:48.840 in between during the time of a session of Congress, 179 00:09:49.879 --> 00:09:54.000 then maybe Trump's argument would work because it says the 180 00:09:54.039 --> 00:09:55.960 House said we want to Congress to go in a 181 00:09:56.000 --> 00:09:58.000 German now, and the Senate doesn't want to go to 182 00:09:58.120 --> 00:10:00.279 German at all, which they generally don't want to do 183 00:10:00.879 --> 00:10:02.679 because they don't want to give away. 184 00:10:02.559 --> 00:10:03.840 Their confirmation power. 185 00:10:04.279 --> 00:10:07.960 Then this provision suggests that President Trump could say, okay, 186 00:10:07.960 --> 00:10:10.399 there's a disagreement between the two houses, and I'm going 187 00:10:10.480 --> 00:10:14.279 to put Congress into a chairman for ten days and 188 00:10:14.320 --> 00:10:16.039 then make all the recess appointments. 189 00:10:17.440 --> 00:10:18.080 Never been done. 190 00:10:18.120 --> 00:10:20.600 So the political play here is getting Mike Johnson to 191 00:10:20.600 --> 00:10:22.720 get the House Republicans to adjourned. I said, I won't 192 00:10:22.720 --> 00:10:24.679 want to do it, and then Trump uses this never 193 00:10:24.720 --> 00:10:25.519 before use power. 194 00:10:25.559 --> 00:10:28.720 No, the political play is Trump shouldn't need to have 195 00:10:28.799 --> 00:10:31.120 Reese's appointments in any way shape or for me as 196 00:10:31.159 --> 00:10:33.399 a fifty three majority in the Senate. 197 00:10:33.440 --> 00:10:34.639 And no, no, no, no no. 198 00:10:34.960 --> 00:10:38.600 They talked for months about how Clinton, with forty three 199 00:10:38.600 --> 00:10:40.200 percent of the popular worlde. 200 00:10:40.000 --> 00:10:40.919 Had a mandate. 201 00:10:41.519 --> 00:10:45.200 What the heck is wrong with these idiotic Republicans? 202 00:10:45.200 --> 00:10:47.399 Do they really not see what happened? You know, you 203 00:10:47.440 --> 00:10:48.879 can think that Gates. 204 00:10:48.720 --> 00:10:52.440 Wasn't perhaps the best choice for attorney general, But at 205 00:10:52.440 --> 00:10:54.279 the same time, anybody who says that to me, I 206 00:10:54.320 --> 00:10:56.360 want to smack them until they can explain to me 207 00:10:56.440 --> 00:11:02.639 how it was that mister establishment perfect resume, former Judge 208 00:11:02.679 --> 00:11:08.759 Garland was anything but a disastrous appoint a disaster's appointment 209 00:11:08.799 --> 00:11:13.600 to the attorney general position. I mean for the country, 210 00:11:14.919 --> 00:11:18.639 the damage is probably never going to be fully undone 211 00:11:18.679 --> 00:11:23.000 from Garland, So why not bring somebody the exact opposite 212 00:11:23.120 --> 00:11:24.799 of a scumbag like Garland did? 213 00:11:25.000 --> 00:11:26.519 That's my point, And I was. 214 00:11:26.480 --> 00:11:27.879 Fine with with Gates. 215 00:11:28.080 --> 00:11:29.639 I was, you were fine. 216 00:11:30.080 --> 00:11:31.360 I wouldn't have chosen him. 217 00:11:31.559 --> 00:11:35.080 But he doesn't even meet the minimum style, which are 218 00:11:35.159 --> 00:11:37.960 what might not be a child molester. 219 00:11:41.799 --> 00:11:43.440 Letting all those illegal aliens. 220 00:11:43.519 --> 00:11:44.759 Let me get back to the other side of the 221 00:11:44.799 --> 00:11:46.960 political question, which does not relate to Gates or Garland 222 00:11:47.039 --> 00:11:51.240 or anybody, which is so what Roosevelt probably appoint five hundred. 223 00:11:51.000 --> 00:11:54.240 People, no exactly the time is is. 224 00:11:54.200 --> 00:11:57.159 A new president now has three thousand appointments to fill. 225 00:11:57.639 --> 00:12:01.240 And ever since the Arab War gate, when we changed 226 00:12:01.240 --> 00:12:03.799 the you know, stepped up the ethics requirements, that process 227 00:12:03.799 --> 00:12:06.840 has gotten longer and longer and longer. The FBI background 228 00:12:06.879 --> 00:12:09.320 checks take forever and so forth. I wonder if this 229 00:12:09.399 --> 00:12:12.000 isn't I mean, maybe they do want to exercise this power, 230 00:12:12.039 --> 00:12:13.960 but I wonder if this is a bit of bargaining. 231 00:12:15.360 --> 00:12:19.320 That's the breakfast bell. I think that's at the front door. 232 00:12:19.480 --> 00:12:23.279 Oh okay, actually that the son you're hearing listeners is 233 00:12:23.279 --> 00:12:27.200 Steve stampeding to breakfast when he heard the bell for food, 234 00:12:29.679 --> 00:12:33.279 priceless antiques destroyed because they were in Steve's. 235 00:12:32.919 --> 00:12:37.840 Speaking before before he finishes up, good morning, the barrenness 236 00:12:37.840 --> 00:12:39.000 of the castle. 237 00:12:39.200 --> 00:12:42.799 Right, but joy so to resume. 238 00:12:43.000 --> 00:12:46.440 Ever since Watergate, it's become more and more difficult to 239 00:12:46.440 --> 00:12:49.840 get people confirmed. It takes months and months, sometimes years, 240 00:12:50.679 --> 00:12:53.879 And I wonder if this is partly typical Trumpian business 241 00:12:53.919 --> 00:12:56.919 bargaining UH to try and speed up the process. People 242 00:12:56.919 --> 00:12:58.519 have been talking for years about how this has been 243 00:12:58.519 --> 00:13:01.000 getting worse and worse for every present of both parties, 244 00:13:01.600 --> 00:13:04.440 and all the proposals for reform get nowhere, and the 245 00:13:04.480 --> 00:13:06.200 only way to change is, like so many other things, 246 00:13:06.279 --> 00:13:08.679 is really shake things up. So I think, you know, a, 247 00:13:08.879 --> 00:13:10.519 it might work, or too, it might get the Senate 248 00:13:10.600 --> 00:13:13.600 to move faster. And supposedly we are Trump people want 249 00:13:13.600 --> 00:13:15.639 to skip a lot of the FBI background checks, which 250 00:13:15.639 --> 00:13:17.360 some Republican senators are resisting. 251 00:13:17.519 --> 00:13:18.240 Of course, I. 252 00:13:18.159 --> 00:13:19.200 Don't think that makes sense. 253 00:13:19.480 --> 00:13:23.879 For the cabinet officers first coming in, they get confirmed fast. 254 00:13:23.919 --> 00:13:27.200 I mean, well, they do see this weird phenomenon where 255 00:13:27.519 --> 00:13:30.639 the Senate is going to actually hold confirmation hearings before 256 00:13:30.679 --> 00:13:35.360 President Trump even takes office, and they'll all get confirmed quickly. 257 00:13:35.399 --> 00:13:37.879 I don't think that explains the Gates problem, which is 258 00:13:37.919 --> 00:13:39.960 I think you have a guy who just was not 259 00:13:40.200 --> 00:13:43.960 qualified and had serious background issues to get confirmed. 260 00:13:44.120 --> 00:13:45.879 That's a different question than. 261 00:13:45.720 --> 00:13:48.600 The all the sub cabinet officers who who you're talking 262 00:13:48.600 --> 00:13:52.159 about where that you could say is you know, the 263 00:13:52.200 --> 00:13:55.039 Senate is slowing it down because they just can't process 264 00:13:55.120 --> 00:13:58.120 that many people at the beginning of an administration. So 265 00:13:58.440 --> 00:14:01.399 that's partially the Senate's fault because they've made so many 266 00:14:01.480 --> 00:14:04.720 jobs of vice and consent jobs, right, although Hamilton says, 267 00:14:04.799 --> 00:14:06.799 you know that's the purpose of the clauses to make 268 00:14:06.799 --> 00:14:09.240 sure the Senate has to say, because each of these 269 00:14:09.360 --> 00:14:13.240 junior officers prior wields far more power than a cabinet 270 00:14:13.279 --> 00:14:15.480 officer did in the eighteenth century. 271 00:14:15.120 --> 00:14:19.440 But what john about those officers that are not Senate 272 00:14:19.519 --> 00:14:23.320 confirmation do not like, for instance, the as I recall 273 00:14:23.399 --> 00:14:26.360 the National Security Advisor, the White House Chief of staff, 274 00:14:27.279 --> 00:14:30.720 some other really important powers. Will there be a tendency 275 00:14:30.799 --> 00:14:33.320 or has there been a tendency over time to increase 276 00:14:33.480 --> 00:14:36.440 those kinds of offices so that you can get around 277 00:14:36.600 --> 00:14:39.720 entirely the Senate confirmation or to give more power to 278 00:14:39.759 --> 00:14:43.000 people in those offices that say, the National Security Advisor 279 00:14:43.480 --> 00:14:46.440 versus the Secretary of Defense who has to be confirmed. 280 00:14:46.720 --> 00:14:50.759 This is the very interesting dynamic and a partner response 281 00:14:50.799 --> 00:14:54.200 to this what you're talking about, what Steve's talking about, 282 00:14:54.200 --> 00:14:59.720 which is that the president considers the people who are 283 00:14:59.720 --> 00:15:02.720 part of of the White House Office, who all the 284 00:15:02.720 --> 00:15:07.159 people Lucretia mentioned, they're not even independent officers, they're just 285 00:15:07.360 --> 00:15:10.120 aids of the president and running the White House. And 286 00:15:10.200 --> 00:15:12.639 so they've always made the argument and the Senate's respected 287 00:15:12.639 --> 00:15:15.120 it so far, which is that they're not subject to 288 00:15:15.120 --> 00:15:18.039 advice and consent because they're essentially part of the presidency 289 00:15:18.639 --> 00:15:22.639 itself as an as a singular office, whereas you know, 290 00:15:22.679 --> 00:15:24.840 the cabinet officers are not in part you know, they 291 00:15:24.879 --> 00:15:29.960 run for They run a congressionally authorized and funded office 292 00:15:29.960 --> 00:15:32.679 that has statutory duties putting in differently like the National 293 00:15:32.759 --> 00:15:36.360 Security Advisor doesn't have any duties set by Congress. So 294 00:15:36.720 --> 00:15:39.799 the interesting thing is the president has this political incentive 295 00:15:40.159 --> 00:15:43.159 to make more and more of the operation part of 296 00:15:43.159 --> 00:15:46.240 the White House Office because as you say, the Senate, 297 00:15:46.440 --> 00:15:48.720 you know, slows things down, but they also Congress is 298 00:15:48.840 --> 00:15:53.879 using the advice can cent power to enforce its own priorities. So, 299 00:15:54.080 --> 00:15:57.080 for example, the head of OMB is an advice and 300 00:15:57.120 --> 00:15:59.600 consent officer. Even though they kind of work, they'll say 301 00:15:59.639 --> 00:16:02.360 they work in the White House. That's where the struggle is, 302 00:16:02.440 --> 00:16:05.159 or these offices that are they're called in the I 303 00:16:05.200 --> 00:16:08.200 hate to be all nerdy about it. They're in what's 304 00:16:08.200 --> 00:16:11.960 called the Executive Office of the President, which is a much. 305 00:16:11.840 --> 00:16:14.399 Broader office, and those people. 306 00:16:14.799 --> 00:16:17.080 That's where the battleground is over whether the Senate is 307 00:16:17.080 --> 00:16:19.399 going to control their appointment or not. That's totally different 308 00:16:19.440 --> 00:16:22.080 than these junior officers. Like I was a junior officer 309 00:16:22.120 --> 00:16:25.559 in the Justice Department. I was appointed by President Bush, 310 00:16:25.799 --> 00:16:27.720 but I didn't go through advice and consent because I 311 00:16:27.799 --> 00:16:29.159 wasn't high enough. 312 00:16:29.399 --> 00:16:31.639 Really, Yes, well. 313 00:16:31.279 --> 00:16:34.000 So I just wanted to say, I hope that our 314 00:16:34.080 --> 00:16:38.559 listeners understand first and foremost that I asked these questions 315 00:16:38.799 --> 00:16:42.480 just to give John an opportunity to pontificate, because I already. 316 00:16:42.200 --> 00:16:42.840 Know the answer. 317 00:16:43.120 --> 00:16:45.600 But I actually do have a question, and I thought 318 00:16:45.600 --> 00:16:50.799 that the National Security Advisor was to some extent congressionally 319 00:16:51.159 --> 00:16:53.960 mandated by the National Security Act of nineteen forty eight. 320 00:16:54.480 --> 00:16:57.200 Oh there's a question, John is Yeah, the National Security 321 00:16:57.200 --> 00:16:59.960 Advisors and naw Security Act. But I think, I think 322 00:17:00.000 --> 00:17:03.080 think it's an executive appointment, but I'm not positive. 323 00:17:03.480 --> 00:17:08.559 Is there no statutory john Is there no statutory authorization 324 00:17:08.640 --> 00:17:11.440 for the National Security Advisor in the National Security. 325 00:17:11.039 --> 00:17:12.079 Act of nineteen forty eight. 326 00:17:12.160 --> 00:17:16.160 So Congress funds the offices still, right, so they will, 327 00:17:16.519 --> 00:17:19.599 but they don't it says they don't provide for it. 328 00:17:19.759 --> 00:17:22.240 Or putting it differently, if the statute didn't exist, the 329 00:17:22.279 --> 00:17:26.279 president could create them anyway, their creation really isn't so 330 00:17:26.680 --> 00:17:29.480 the I mean, Congress funds it, but their office isn't 331 00:17:29.519 --> 00:17:31.759 a creation of the Congress in that way. 332 00:17:32.039 --> 00:17:32.839 So that's the theory. 333 00:17:32.880 --> 00:17:35.799 Like the person the position I know best is a 334 00:17:35.880 --> 00:17:38.319 National Security Advisor and White House Council. Those are just 335 00:17:38.359 --> 00:17:41.440 like jobs that kind of evolved over time. Is like 336 00:17:41.839 --> 00:17:44.880 personal aids to the president, and they were never like 337 00:17:44.960 --> 00:17:48.759 so trying to like you person like who the White 338 00:17:48.759 --> 00:17:51.519 House chief of Staff? Right, Presidents would go to the 339 00:17:51.559 --> 00:17:54.720 mat to stop Senate from confirming them or Congress even 340 00:17:54.799 --> 00:17:57.640 creating the position, because when Congress creates a position, it 341 00:17:57.720 --> 00:18:00.000 kind of as partial control absolute. 342 00:18:00.720 --> 00:18:02.920 Well, now, I think a couple observations. 343 00:18:02.960 --> 00:18:05.559 One is I think as recently as the beginning of 344 00:18:05.599 --> 00:18:08.519 the New Deal, the White House staff was still something 345 00:18:08.599 --> 00:18:12.119 like under fifty people, and now it's hundreds and hundreds. 346 00:18:12.279 --> 00:18:14.519 The National Security Council, I know, has become kind of 347 00:18:14.559 --> 00:18:18.440 a plaything to stick special purposes. So for example, the 348 00:18:18.480 --> 00:18:20.759 numbers were something like, I don't have the memorize, but 349 00:18:21.200 --> 00:18:24.839 the Clinton administration or maybe the Obama administration grew the 350 00:18:24.920 --> 00:18:27.519 National Security Council to something like three hundred people, and 351 00:18:27.519 --> 00:18:29.839 they stuck in that a lot of their pet projects, 352 00:18:29.920 --> 00:18:33.359 like climate change is a national security issue, right, And 353 00:18:33.759 --> 00:18:36.240 then I think the Bush or Trump may have shrunk 354 00:18:36.240 --> 00:18:37.839 it back down so they think it was evan flow. 355 00:18:38.640 --> 00:18:40.640 And then part of you trying to control a bureaucracy 356 00:18:40.640 --> 00:18:42.480 out of the White House, And that's a long subject 357 00:18:42.480 --> 00:18:44.759 that's going to get us off into the weeds. All right, 358 00:18:44.839 --> 00:18:48.599 let's draw a veil over the recess appointment power and 359 00:18:48.839 --> 00:18:52.920 whicher cabin nominees may or may not be problematic or 360 00:18:53.119 --> 00:18:55.440 so forth, And moved to the other big story of 361 00:18:55.480 --> 00:18:58.880 just the last few days. The International Criminal Court has 362 00:18:58.960 --> 00:19:02.680 issued an arrest war for Prime Minister net In Yahoo 363 00:19:02.680 --> 00:19:06.079 of Israel, and there are some countries starting with Canada, 364 00:19:06.440 --> 00:19:09.799 whose Prime Minister Justin Trudeau declared they would arrest net 365 00:19:09.799 --> 00:19:11.920 in Yahoo if he came to Canada. And I think 366 00:19:11.920 --> 00:19:14.559 some other countries are piled on too. And it has 367 00:19:14.559 --> 00:19:18.079 been suggested that Trump ought to respond by threatening to 368 00:19:18.200 --> 00:19:21.160 arrest the chief judge or judges of the International Criminal Court. 369 00:19:21.279 --> 00:19:23.319 Of course, we're not a part of this darn thing, John, 370 00:19:23.839 --> 00:19:25.359 and for a whole bunch of reasons. And I have 371 00:19:26.680 --> 00:19:29.079 I have no end of things to say that are 372 00:19:29.079 --> 00:19:32.079 bad about the International Criminal Court, But I mean. 373 00:19:31.960 --> 00:19:35.279 What should be that are bad about it? Yes, there's 374 00:19:35.960 --> 00:19:37.920 to say that are bad. No, I thought I was 375 00:19:37.960 --> 00:19:39.599 trying to say. I can't run out of things that 376 00:19:39.640 --> 00:19:40.640 are bad to say about it. 377 00:19:40.799 --> 00:19:45.359 That's what I'm trying to say. 378 00:19:45.640 --> 00:19:48.400 The thing, so it should be. I mean, what's the 379 00:19:48.480 --> 00:19:50.000 right response, John, or is there one? 380 00:19:50.519 --> 00:19:50.640 Well? 381 00:19:50.680 --> 00:19:53.960 The right response is that the Trump administration should wait 382 00:19:54.000 --> 00:19:59.079 a campaign to delegitimize, if not destroy, the International Crimic Court. 383 00:19:59.359 --> 00:20:03.279 One just letter level of broad policy. This is the 384 00:20:03.319 --> 00:20:06.440 worst of the international organizations. It claims to be able 385 00:20:06.480 --> 00:20:08.880 to grab anyone anywhere in the world. 386 00:20:08.599 --> 00:20:11.599 To try them for war crimes, even if they come 387 00:20:11.599 --> 00:20:15.160 from a country like ours or like Israel's that has 388 00:20:15.160 --> 00:20:18.559 a well functioning judicial system and legal system and can 389 00:20:18.599 --> 00:20:22.279 be trusted to make sure that. 390 00:20:22.359 --> 00:20:24.519 Justice is done. But I think it's worse. 391 00:20:24.640 --> 00:20:27.200 I think that the ICC is an effort by some 392 00:20:27.400 --> 00:20:32.359 countries to prevent other countries from fighting necessary wars. If 393 00:20:32.400 --> 00:20:37.160 you have some kind of weird body without juries, where 394 00:20:37.160 --> 00:20:40.160 the prosecutors and the judges are part of the same body, 395 00:20:40.559 --> 00:20:45.960 not democratically accountable. Second guessing American military decisions in the field. 396 00:20:46.079 --> 00:20:47.759 This is just going to make it harder for us 397 00:20:47.799 --> 00:20:49.119 to fight the wards we need to. 398 00:20:49.039 --> 00:20:52.920 Do to defend ourselves and our allies and to stop 399 00:20:53.000 --> 00:20:56.440 our rivals at a time of great instability and challenge 400 00:20:56.480 --> 00:21:00.880 from our competitors. So I think the Trump adminstration, which campaign, 401 00:21:01.720 --> 00:21:05.160