Speaker 1: Welcome to another episode of The Oath and the Office
Speaker 1: of the podcast. I'm John Pegel, saying it's so great
Speaker 1: to have you with us because we've pretty much reached
Speaker 1: a point where the Constitution is basically America's most ignored
Speaker 1: terms of service agreement, and when it comes to fitness
Speaker 1: for running the Department of Justice, Todd Blanche has raised
Speaker 1: the bar on lowering the bar at a time when
Speaker 1: constitutional norm sounds more and more like an endangered species.
Speaker 1: Let me please welcome the star of our show. Constitutional
Speaker 1: law professors have become America's trauma counselors and no one
Speaker 1: saves more. And Professor Corey Bretschneider, the author of The
Speaker 1: Oath and the Office. Professor, welcome back. It's great to
Speaker 1: see you.
Speaker 2: Thanks so much, John. I'm looking forward to this episode.
Speaker 2: Although I'm distressed by what's happening with the confirmation of
Speaker 2: Todd Blanche, which was voted today out of the Judiciary Committee,
Speaker 2: I also think gets a chance to talk about how
Speaker 2: the system's supposed to work and what confirmation is supposed
Speaker 2: to be, namely our main check against a monarch, and
Speaker 2: so as much as we're failing in our current moment,
Speaker 2: we'll also talk about the hope of how the system's
Speaker 2: supposed to work and how to revive it and what
Speaker 2: to expect the representatives who defend it and those unfortunately
Speaker 2: who don't.
Speaker 1: I was on MSNL the other night to talk about
Speaker 1: Senators Tillis and Cornon and their valiant Mister Smith goes
Speaker 1: to Washington efforts to get Todd Blanche to agree in
Speaker 1: writing to get rid of the slush fund for the
Speaker 1: January sixth terrorist. It was essentially they were saying, well, listen,
Speaker 1: all this corruption we're okay with, could you not do
Speaker 1: this one piece of corruption in writing? That's all we're asking.
Speaker 1: And Corey he said, I'd said under oath that it's dead.
Speaker 1: And they're like, sorry, we don't trust you swearing on
Speaker 1: a Bible on camera under oath, mister Blanche, can you please,
Speaker 1: we need to know it's dead, Corey. Ten years after
Speaker 1: Trump started all this, Republicans are demanding Trump produce a
Speaker 1: death certificate for something. The irony floors me. Blanche said,
Speaker 1: we won't do it. And so suddenly Professor all the
Speaker 1: Epstein cover up, given Dlane Maxwell a cushy club fed prison,
Speaker 1: all those pardons for all those January sixth terrorists, I
Speaker 1: mean everything, the subpoenas for the New York Times reporters.
Speaker 1: None of it matters anymore. They made this big drama
Speaker 1: about one little thing, and it successfully seems to have
Speaker 1: distracted everybody from talking about the gigantic pyramid of corruption
Speaker 1: this man represents.
Speaker 3: Absolutely, you know.
Speaker 2: And just to go back to the beginning, of course,
Speaker 2: you know, there are a number of questions in this nomination.
Speaker 3: The failure to.
Speaker 2: Release the Epstein files, which we've covered with Katie Fang,
Speaker 2: who's suing actually to get this release, and then these
Speaker 2: immediate issues about both the deal that Donald Trump essentially
Speaker 2: made with himself he claims with the IRS, and a
Speaker 2: settlement that resulted in a b with billions, you know,
Speaker 2: over in the billions of dollars, this settlement, which was
Speaker 2: really a slush fund to fund the allies of the
Speaker 2: President of the United States, including potentially to pay off
Speaker 2: the January sixth rioters. Now, a lot of the Republican
Speaker 2: Party has been fine with that, but these two senators,
Speaker 2: as you suggested, in the Republican Party.
Speaker 3: Seemed that at a moment anyway to.
Speaker 2: Have a conscience and to say, you know, I'm not
Speaker 2: going to vote for somebody that approved all of this.
Speaker 2: And yet you know the thing that they still are
Speaker 2: saying that, But yet they're being naive. It looks like
Speaker 2: and thinking, well, as long as Donald Trump and or
Speaker 2: Todd blanche in particular puts into writing a promise that
Speaker 2: I'm not going to do this, then we can trust it.
Speaker 2: Now when they're pushed, I've seen comments that suggest they realize, like, yes,
Speaker 2: maybe we can't hold him to these promises. But really,
Speaker 2: the assumption that there's any trust in an administration that
Speaker 2: is trying to do this in the first place, I
Speaker 2: think that, yes, it really is, but it does you know, John, Yes,
Speaker 2: we'll talk a lot about history. I want to say
Speaker 2: one last thing. There is this tradition of getting promises
Speaker 2: from nominees that were carried out, and so the most
Speaker 2: important I think is Elliott Richardson, the Attorney General, who
Speaker 2: is in the midst of the Watergate scandal, not just
Speaker 2: nominated but confirmed to the Senate, promises he's not going
Speaker 2: to stop the investigation, he's not going to fire Archibald Cox,
Speaker 2: the special prosecutor looking into Nixon's crimes, and he stays
Speaker 2: true to that promise. He basically says, fire me rather
Speaker 2: than see me do this because I'm not going to
Speaker 2: break and this is how we put it. I'm not
Speaker 2: going to break my word to the Senate. So there
Speaker 2: was a past moment where these promises met something. But
Speaker 2: yet look a moral age of.
Speaker 1: The golden moral age of Watergate, when Republicans were men
Speaker 1: of character. Yes, wow, we never knew how good we
Speaker 1: had it. I mean, Corey, I want to ask you
Speaker 1: about you know something that you just said, because it
Speaker 1: seems like with the Weaponization Fund, doesn't the fact that
Speaker 1: Blanche was willing to pitch it in the first place
Speaker 1: before we're sending it, doesn't that on its own render
Speaker 1: this man unfit for office?
Speaker 2: Exactly, John, That's such a great way to pull out
Speaker 2: the really absurdity of the situation, because you know, if
Speaker 2: you're saying, I'm going to basically destroy the Department of
Speaker 2: Justice and the Department of Justice.
Speaker 3: And this is partly also related to Watergate.
Speaker 2: There was an amazing Attorney General named ed Levy who
Speaker 2: was appointed by Ford, nominated, I should say, and confirm
Speaker 2: by the Senate. That's an important distinction. You don't just
Speaker 2: get put there.
Speaker 3: By the President.
Speaker 2: And what ed Levy did was he instituted a lot
Speaker 2: of these norms that we think are supposed to govern
Speaker 2: the department, like don't well even meet with the president,
Speaker 2: remember the famous tarmac meeting. Even interaction was supposed to
Speaker 2: be dangerous because of the worry that we'd return to
Speaker 2: a Nixonian moment where the president was essentially telling the
Speaker 2: Department of Justice to do his own bidding. So, you know,
Speaker 2: there is this history of norms, and what Todd blanche
Speaker 2: has done is just destroy all of them. Now, how
Speaker 2: has he destroyed them? He's basically acting as the president's
Speaker 2: personal lawyer. So to get to your point, which is,
Speaker 2: if you're doing that, if you're destroying the Department of Justice,
Speaker 2: you have no integrity. How are we going to trust
Speaker 2: that you say you're not going to continue the weaponization fund.
Speaker 1: That's why I felt very uncomfortable on MS NOW the
Speaker 1: other night discussing these two senators as performing any kind
Speaker 1: of meaningful oversight or even procedural oversite. It was all
Speaker 1: just theater. I mean, this man has gone from personal
Speaker 1: defense attorney to publicly funded defense attorney right right, and
Speaker 1: again if you want proof of that, and again of
Speaker 1: the unfitness for office. The administration narrowed language regarding the
Speaker 1: tax audit protections they want to give Trump and his
Speaker 1: revolting sons, Fredo and shimp I mean, Corey. I don't
Speaker 1: know any private citizens, certainly not any convicted felons who
Speaker 1: are now immune from IRS audits for possible tax fraud
Speaker 1: in the future and in the past. I know of
Speaker 1: three people alive that this administration says should not have audits.
Speaker 1: You'd think our conservative brothers and sisters would find that
Speaker 1: a bit untoward and unfair, wouldn't you. I mean, constitutionally,
Speaker 1: are there broader equal protection concerns for when a government
Speaker 1: is clearly creating a different legal standard for a few
Speaker 1: private citizens.
Speaker 2: Well, it really is the destruction of not just equal protection,
Speaker 2: but the rule of law, the idea of democracy because Republicans.
Speaker 4: Voted for it. Every Republican voted for it.
Speaker 2: Sorry, the President of the United States, you know, has
Speaker 2: this immunity that the Supreme Court basically pulled out of
Speaker 2: thin error, and he's doubling down on that with this
Speaker 2: IRS deal, this fake deal again, a deal between himself
Speaker 2: and himself, and also trying to extend that to his family.
Speaker 2: And so absolutely, this is, you know, just a real attack.
Speaker 3: On the rule of law.
Speaker 2: I should say something too, you know about all this,
Speaker 2: which is I think a part of the story that
Speaker 2: I haven't seen talked about, but it was talked about
Speaker 2: on this podcast. As you know, a friend of the show,
Speaker 2: Sky Perryman, was our guest two weeks ago, the head
Speaker 2: of this amazing group, Democracy Forward, and what we spoke
Speaker 2: about was the way that she, you know, really was
Speaker 2: her organization and these amazing team of lawyers, many of
Speaker 2: whom are former DOJ officials themselves and are horrified about
Speaker 2: what's happening. And I've worked with some of them, as
Speaker 2: you know, on the tariff's case. At any rate, they
Speaker 2: brought a case to both against the IRS deal that
Speaker 2: we're talking about, but also against the weaponization fund.
Speaker 3: And just to remind people, the.
Speaker 2: Way this worked was the IRS deal was not, in
Speaker 2: the end a payment to Trump directly, but was an
Speaker 2: agreement that the IRS had engaged in this weaponization and
Speaker 2: so he would be given this multi billion dollar fund
Speaker 2: he and the DOJ to fund his friends and the
Speaker 2: January six rioters and those who were supposedly the victims
Speaker 2: of shutdowns of political speech. Anyway, Perryman stopped it essentially
Speaker 2: in the courts for the time being. Now here's the point.
Speaker 2: Now he says it's dead, right Todd blanche Ye, if
Speaker 2: it really is dead? And she we brought this out
Speaker 2: in the podcast in a way. I'm not seeing any
Speaker 2: media covering this. So I know a lot of journalists
Speaker 2: are listening to this show, and I hope that they're
Speaker 2: they're going to use this moment to report on this.
Speaker 2: That lawsuit hasn't been dropped. So how can all this
Speaker 2: bs about where there was a letter and we're not
Speaker 2: going to do the weaponization fund? And I promise, and
Speaker 2: I promise, you know he's got his fingers crossed behind
Speaker 2: his back, And how do I know that because he
Speaker 2: hasn't dropped the cads just give up? Why litigate in
Speaker 2: court on behalf of a weaponization fund that's dead. And
Speaker 2: so that was a really powerful argument. And that's the
Speaker 2: real litmus test, not what he says, not what letter
Speaker 2: he promises, and.
Speaker 3: All this back and forth. The reason for their suspicion
Speaker 3: should be.
Speaker 2: At its height no matter what he says, because he
Speaker 2: hasn't dropped the case.
Speaker 4: What does it say that these senators would vote to
Speaker 4: advance this nomination for a man they acknowledged they don't
Speaker 4: believe when he's sworn under oath. I mean, they don't
Speaker 4: accept his word under oath on camera. That's not enough
Speaker 4: for him to believe it. And they vote for him anyway.
Speaker 1: And again, this is all just days after the DOJ
Speaker 1: subpoena is targeting the New York Times reporters.
Speaker 4: Can I ask you about this?
Speaker 1: I know that on a constitutional level there has to
Speaker 1: be a line between legitimate leak investigations and protecting a
Speaker 1: free press. But the DOJ withdrew these subpoenas after a
Speaker 1: federal judge said, no, you didn't follow procedure, So unlike
Speaker 1: these Republican senators and the Congress, at least one judge
Speaker 1: is practicing some judicial oversight out there. But how insane
Speaker 1: and illegal was this? They're subpoena New York Times reporters
Speaker 1: and he still shows up at the correspondence dinner.
Speaker 2: Well, you know, if we're going to make a list
Speaker 2: of what's wrong with the blanche nomination and the reason
Speaker 2: why every Republican senator, every Democratic senator should be voting, no,
Speaker 2: that's not what's happening.
Speaker 3: This is high on the list.
Speaker 2: We talked about the DOJ slush fund, the creation of
Speaker 2: the slush fund, the fake IRS case that came from it,
Speaker 2: with a federal judges called a fraud on the court.
Speaker 2: And now we're onto this other topic, which is that,
Speaker 2: under Blanche's direction of the Department of Justice, another nominee,
Speaker 2: who we're going to talk about, Jay Clayton, who is
Speaker 2: now the Director of National Intelligence, a totally frightening thought.
Speaker 3: Subpoena these journalists.
Speaker 2: Now they trying to back out of this, claiming, oh,
Speaker 2: they were never really subpoenaed because they were targets of
Speaker 2: the investigation.
Speaker 3: They weren't criminal targets.
Speaker 2: There's a distinction in prosecution between the target of the
Speaker 2: investigation and somebody who's essentially a witness, and somehow they
Speaker 2: were just well, what was the crime. We haven't even
Speaker 2: heard that. And what was obviously happening here was, although
Speaker 2: they knew they weren't going to get a conviction, harassment
Speaker 2: to create that chilling effect that we're often talking about,
Speaker 2: not to prosecute anybody in the way John Adams did
Speaker 2: and get a conviction and put people in prison, but
Speaker 2: to make them think twice before they do. Another story
Speaker 2: about a bribe plane. That's what the story was about.
Speaker 2: The cutter gave Donald Trump this bribe plane, and the
Speaker 2: New York Times was investigating on why it needed to
Speaker 2: be retrofitted because it wasn't prepared to have the defenses
Speaker 2: to cover to carry a president of the United States.
Speaker 3: So, you know, here we are again.
Speaker 2: The main point is there's this story after story, and
Speaker 2: that's all under his leadership. If he found out, you know,
Speaker 2: maybe wanted to blame it on Jay Clayton, that he
Speaker 2: was the one to do it, he could have stopped it,
Speaker 2: or he could have called it out, and he didn't
Speaker 2: do anything of the sort. To talk about how far
Speaker 2: we are from Watergate, think of how far that is
Speaker 2: from a devoted Republican. Elliott Richardson was a devoted Republican
Speaker 2: who had served multiple cabinet positions, nominated to be Attorney General,
Speaker 2: he was a party stalwart.
Speaker 3: And yet you know heid by.
Speaker 2: His word, which is I'm not going to stop the
Speaker 2: investigation of Richard Nixon. Look how far we are we
Speaker 2: have somebody who's just presided over destruction of the Department
Speaker 2: of Justice and presided essentially over an attack on democracy,
Speaker 2: and then we're supposed to trust them.
Speaker 3: I don't think so.
Speaker 2: Republican senators who have turned their backs on democracy.
Speaker 1: Okay, as bad as you make it sound, I want
Speaker 1: to remind people it's worse because the DOJ wasn't just
Speaker 1: seeking reporters phone records, but they wanted records involving their
Speaker 1: family members. Right, try to imagine what would have happened
Speaker 1: if Barack Obama wanted the phone records of Sean Hannity's
Speaker 1: trophy wife. I mean, like, try to imagine if a
Speaker 1: democratic president had tried to get the call records of
Speaker 1: a right wing journalist family members. I mean, doesn't this
Speaker 1: raise constitutional and civil liberties concerns?
Speaker 2: You know it does, and you know, sometimes you have
Speaker 2: to go I'm always talking about hope on this show,
Speaker 2: and one thing that I really do think is hopeful
Speaker 2: is that we forget some times where the norms, where
Speaker 2: the rules of the Department of Justice came from. And
Speaker 2: Nixon was so terrible, not just in the crimes of Watergate,
Speaker 2: but in his attack on political opponents, his abuse of
Speaker 2: the irs, his attempt to manipulate actually antitrust suits, including
Speaker 2: one involving a company called Itt, and over and over
Speaker 2: these abuses were coming to light. And when Ford took
Speaker 2: after Nixon resigned, Ford takes his place. This new Attorney General,
Speaker 2: ed Levy again had been the president of University of Chicago.
Speaker 2: He picked somebody who wasn't his friend, who was at
Speaker 2: the height of the legal profession. And you know the
Speaker 2: institution of these norms, which say you're not even supposed
Speaker 2: to talk to the president, much less allow the president
Speaker 2: to commandeer the department, and the department is supposed to
Speaker 2: defend the people, not the personal interests of the United States.
Speaker 2: Those were in place so much so that if any
Speaker 2: president violated them, even in the slightest and I do
Speaker 2: think this was true of Democratic and Republican presidents, that
Speaker 2: what would happen is the press would go crazy. It
Speaker 2: would be a scandal, even a discussion, And that's what
Speaker 2: we were Now.
Speaker 3: Todd Blanche really has destroyed that. I mean completely.
Speaker 2: It's been on the run in the first Trump administration.
Speaker 2: Certainly we saw a tax on it with Bill Barr
Speaker 2: and others, and we could talk about that, but this
Speaker 2: is somebody who really is acting. You said this, I
Speaker 2: don't want people to miss it, not just as the
Speaker 2: president's lawyer, but as his criminal defense lawyer, and he had,
Speaker 2: of course been Donald Trump's criminal defense lawyer in the
Speaker 2: Stormy Daniels case in Manhattan. That's how he's acting. It
Speaker 2: has blown apart these norms. One last thing on this point,
Speaker 2: The norms themselves turn out to not be a good
Speaker 2: way of guaranteeing democracy because if you just get somebody
Speaker 2: wants to violate them, norms are not really a legal
Speaker 2: check on this event. Right, That's why we're seeing what
Speaker 2: we're seeing.
Speaker 1: I mean, right now, somewhere in hell, Nixon is looking
Speaker 1: up at these guys saying too much.
Speaker 4: Guys, too much, pull it back, pull it back.
Speaker 1: But in the midst of all of this, you know,
Speaker 1: Senate Democrats are asking whether the White House played any
Speaker 1: role in directing these subpoenas Corey. And now we're getting
Speaker 1: into real Nixon territory, because how problematic would it be.
Speaker 1: I know this sounds really impossible, but go with me
Speaker 1: on this hypothetical. But what if Donald Trump personally influenced
Speaker 1: criminal investigation decisions regarding I know it's hard to believe,
Speaker 1: but what if Donald Trump ordered the code read Corey,
Speaker 1: I mean, right.
Speaker 2: You know, so much of the problem here is getting
Speaker 2: the information, and we have journalists. We had Jody Kanter,
Speaker 2: one of the best, I think probably the best journalists
Speaker 2: out there covering the courts, who's gotten us secret memos
Speaker 2: from John Roberts showing us what's.
Speaker 3: Really going on behind the scenes.
Speaker 2: And there are other great reporters doing work about Donald
Speaker 2: Trump and his secret orders. Yeah, but the problem is
Speaker 2: how do you get that information? And so much of
Speaker 2: what happens between the President and the Department of Justice
Speaker 2: is concealed, and so the more we learn, I have
Speaker 2: no doubt that as bad as what we're seeing is
Speaker 2: that it's not a coincidence that his political enemies James
Speaker 2: Gomi gets target. No, he tells us that, I mean,
Speaker 2: listen to him in his public statements, and so of
Speaker 2: course it could be that these subpoenas for the brideplane
Speaker 2: were at his direction, because you know, that's just how
Speaker 2: he operates.
Speaker 3: Again and again, one thing on this.
Speaker 2: Is, you know, we do need there's so many pieces
Speaker 2: of legislation we need to recover from this mass and
Speaker 2: the hope is that as we see how bad it is,
Speaker 2: we see the laws that we need to recover. And
Speaker 2: we talked with Senator Wyden who's been at the forefront
Speaker 2: of a lot of these battles about the need for
Speaker 2: legislation that would allow people to get access to this information.
Speaker 3: The jaw Boning Act is one example.
Speaker 2: Katie Fang is using the Epstein Files Act in a
Speaker 2: totally innovative way to get access for journalists. So that's
Speaker 2: the kind of thing that we need more and more
Speaker 2: and more laws that are going to.
Speaker 4: Do this absolutely.
Speaker 1: And you know, again, Donald Trump really is not going
Speaker 1: to be able to persecute James Comey as fully as
Speaker 1: he'd like unless he has really creative ways to cheat
Speaker 1: in the upcoming midterms. And we've talked extensively about how
Speaker 1: they've been trying to since early twenty twenty five with
Speaker 1: Jerry benderin in Texas in a very off year from
Speaker 1: a census. So they're now asking the Supreme Court to
Speaker 1: revive portions of their old executive order that affect mail voting.
Speaker 1: Once again, Donald Trump, a guy who votes by mail,
Speaker 1: is trying to make it harder for people to vote
Speaker 1: by mail, because, as we've said, it's going to be
Speaker 1: deaf by a thousand cuts. They're going to try to
Speaker 1: make a little bit harder with a voter ID law
Speaker 1: a little bit harder with getting rid of drop boxes
Speaker 1: over here, maybe the Save Act and you ladies change
Speaker 1: your name a little bit harder. I mean, what constitutional
Speaker 1: questions are at the center of this case, trying to
Speaker 1: take a means of exercising a right away from citizens.
Speaker 2: Well, you know, let's start from the beginning that what
Speaker 2: the Post Office is being tolled by Donald Trump is
Speaker 2: that there is massive voter fraud. And to say the
Speaker 2: obvious listeners are not going to be surprised by this
Speaker 2: in the least, there is no such voter fraud. This
Speaker 2: is the same kind of thing he's been saying since
Speaker 2: the twenty twenty election, when he claimed again and again
Speaker 2: that there was voter fraud and there wasn't And now
Speaker 2: he's doing it again.
Speaker 3: Now.
Speaker 2: The problem is that he's saying it this time not
Speaker 2: to courts, who are an independent branch of government that
Speaker 2: are going to push back, but to the Post Office,
Speaker 2: which is dependent in many ways. It is part of
Speaker 2: the executive branch. And with the theory of the unitary executive,
Speaker 2: this Supreme Court has strengthened the position of the president
Speaker 2: over any civil servant in the executive branch. Even though
Speaker 2: there are laws that govern the executive branch.
Speaker 3: That's how it's worked.
Speaker 2: So the Department of Justice and the Solicitor General. I
Speaker 2: just went and looked at this argument to see how
Speaker 2: blatant it is. Is essentially saying, what are you talking
Speaker 2: about that the president can't stop fraud. That's not up
Speaker 2: to you the courts to decide. That's between the president
Speaker 2: and his employees. Through the theory of the unitary executive,
Speaker 2: the Post Office are his employees. Now, a federal court
Speaker 2: has pushed back the Court of Appeals.
Speaker 3: It's gone to and what.
Speaker 2: That court has said is, no, the president can't say
Speaker 2: that you have to do things that are illegal. You
Speaker 2: can't do things that are going to undermine the state
Speaker 2: constitutional ability of the states in the document to regulate elections.
Speaker 2: And you can't go back on prior agreements that keep
Speaker 2: from the politicization of the Post Office. So you have
Speaker 2: these two battles happening now. So far, the winning argument,
Speaker 2: thankfully is the rule of law that says, yeah, it
Speaker 2: doesn't matter what branch are and you can't break the
Speaker 2: law period. You can't undermine the power of the states
Speaker 2: just because you're in the Post Office. And that's part
Speaker 2: of the executive branch. But what's the Supreme Court going
Speaker 2: to say eventually? I'm not sure because they are the
Speaker 2: ones that have built up this theory of the unitary executive. Yeah,
Speaker 2: even in the Court of Appeals there was you know,
Speaker 2: the three judges agreed basically to put a stop to this,
Speaker 2: but there was a trumpet point to judge who had
Speaker 2: a lot of wiggle room in there when it comes
Speaker 2: to the ability of the president of the United States
Speaker 2: to control the Post Office.
Speaker 3: And so this is scary stuff. John definitely, Well.
Speaker 1: I mean, and again, these like Trump, the Supreme Court,
Speaker 1: their executive power is something they treat like I treat
Speaker 1: my airplane carry on bags. I'm trying to see how
Speaker 1: much more stuff I can keep on stuffing into it
Speaker 1: every time and cram more and more into it. I mean,
Speaker 1: I don't know. I went to public school, professor, but
Speaker 1: I always thought elections were administered by the states. Seems
Speaker 1: like this is a states rights issue, except that's only
Speaker 1: deployed when people are trying to justify racism. Where in
Speaker 1: this instance does presidential authority end and state authority begin?
Speaker 1: Because it seems like this Supreme Court is going to
Speaker 1: have to do some really creative dancing to make this fly.
Speaker 2: I mean, I love this airplane analogy that you know,
Speaker 2: you're exactly right that what the theory of the unitary
Speaker 2: executive is becoming is a theory of everything. So what's
Speaker 2: in the executive branch? What are the powers everything?
Speaker 3: More and more? What about the power to destroy.
Speaker 2: The laws that are supposed to govern the civil service?
Speaker 2: Put that in the unitary executive and destroy it, get rid.
Speaker 3: Of all of those laws.
Speaker 2: Put the power of the states is supposed to be
Speaker 2: independent of the federal government and certainly of the presidency,
Speaker 2: in the executive branch. Well, let's put that in the
Speaker 2: theory of executive power. And so it's trying to swallow
Speaker 2: up everything. And notice how they do it. You know,
Speaker 2: lawyers are so crafty. And these lawyers, the lawyers of
Speaker 2: the unitary executive, which go back and you know, part
Speaker 2: of what I'm talking about in my book is the
Speaker 2: lawyers of the nineteen eighties, people like Elito and people
Speaker 2: like Roberts, who were crafting this theory of the unitary executive.
Speaker 2: It's the same people people that's who's doing it.
Speaker 3: And they are expanding and expanding it.
Speaker 2: And that's what's really scaring me about this case because
Speaker 2: when I read what the Solicitor General is saying in
Speaker 2: the brief, it essentially is no, this has nothing to
Speaker 2: do with courts. It's all between the president and his
Speaker 2: employee who he has command total loyalty from and has
Speaker 2: to do what he says. And you know, that's how
Speaker 2: they're trying to skirt the law. That's what it comes
Speaker 2: down to. So far, not successful, but we'll see what
Speaker 2: the Supreme Court says.
Speaker 1: Could a president with an obedient Supreme Court effectively like
Speaker 1: nationalize a whole election just through executive orders or would
Speaker 1: he still have to get congressional authorization.
Speaker 2: I got to say, John, you know the answer should
Speaker 2: be absolutely should be that you need congressional authorization or
Speaker 2: even you know that this again, the states have this
Speaker 2: role in regulating elections too, that there are all these checks,
Speaker 2: a check from Congress and a check from the states.
Speaker 2: You know, now, when you start to look at the facts,
Speaker 2: the way legal cases work, and this is something that's
Speaker 2: so frustrating is we can state a general principle, but
Speaker 2: lawyers crafty lawyers, and let's not make any mistake that
Speaker 2: lawyers who have created and are extending the unitary executive
Speaker 2: theory are very good at this, and they take this
Speaker 2: idea that the Post Office this is part of the
Speaker 2: executive branch, and they start saying, there's nothing going on
Speaker 2: here that's about violation of laws or even involved courts.
Speaker 2: It's just a president essentially saying, hey, we don't want
Speaker 2: to deliver fraudulent ballots, and so you know, look at
Speaker 2: the roles and if you have people on the rolls
Speaker 2: that are not supposed to be voting, you're supposed to
Speaker 2: stop that.
Speaker 3: Now.
Speaker 2: Isn't that within the president's obligation to supposedly, as Article
Speaker 2: two of the Constitution says, take care that the laws
Speaker 2: be faithfully executed. I'm making the point of the unitary
Speaker 2: executive theory. How frightening that might work.
Speaker 1: Well, I mean, the White House says that they're just
Speaker 1: they're just managing their own internal federal directives like they're
Speaker 1: supposed to. But the state's just saying, no, you guys
Speaker 1: are already changing how we conduct our elections because of
Speaker 1: your order. So if the Supreme Court Professor allows parts
Speaker 1: of this to proceed before the midterms, what kind of
Speaker 1: precedents are we talking about here?
Speaker 2: Well, the unitary executive theory started as a kind of
Speaker 2: wacky idea. I should say what it's basis is, and
Speaker 2: when I tell you, it's going to be upsetting, because
Speaker 2: supposedly this is an idea based on the text of
Speaker 2: the Constitution, and it's really only based on a phrase,
Speaker 2: which is that the executive power is vested in a president.
Speaker 2: And what they've done is use that to just expand
Speaker 2: and expand what the president can do. And the president's
Speaker 2: total control, not just control, but total control over his
Speaker 2: own employees. That's how they'd put it. Now, what's the
Speaker 2: response to that. The response to that should be, well,
Speaker 2: the legislative power is vested in a Congress, and it's
Speaker 2: made laws, and the Constitution has created structures that give
Speaker 2: the states and Congress the power to limit what government
Speaker 2: can do.
Speaker 3: But what this very.
Speaker 2: Specific example I'm glad that we've gone so deep shows
Speaker 2: us is how the whole idea, that the right idea
Speaker 2: of the Constitution, which we all learned about in grade school,
Speaker 2: of three coequal branches, how that is under assault by
Speaker 2: this president successfully who doesn't understand in the three branches
Speaker 2: of government I'm sure couldn't name them and tried it.
Speaker 1: In the first term, he thought the three branches were
Speaker 1: the White House, the Senate, and the House. After he
Speaker 1: was elected the first time, he thought those were the
Speaker 1: three branches of American government. And no one ever thought
Speaker 1: this was remarkable except me.
Speaker 2: I mean, he's turning it into one branch, and that's
Speaker 2: the presidency. That's why this podcast, i should say, is
Speaker 2: called the Oath in the Office, to try to emphasize
Speaker 2: the idea that that office is created by law and
Speaker 2: is beholden to law. And that's what's being destroyed by
Speaker 2: this unitary executive theory. And here's the worst part, just
Speaker 2: to sum up, the Supreme Court has.
Speaker 3: Again and again enabled.
Speaker 2: The destruction of the other branches, the building up of one,
Speaker 2: the presidency. And we might see it here again, Corey.
Speaker 1: These guys treat the Constitution like a hotel room Bible.
Speaker 1: They know it's there, they're never going to open it.
Speaker 1: All right, we got to take a quick break. But
Speaker 1: when we come back, much more on the Oath in
Speaker 1: the Office, including the never ending war against.
Speaker 4: A free press by these people. Be right back.
Speaker 5: The new John Fiegel Sang Show every day at dwelve noon.
Speaker 6: Good afternoon, John, and welcome back to afternoon Radio.
Speaker 4: I have missed you. Now you're back into the daylight.
Speaker 3: Good afternoon, John congraduates on the new show, loving congratulations
Speaker 3: on the changes happening with the show.
Speaker 4: Excited for you, Excited.
Speaker 3: For me personally, like, oh my god, I can call
Speaker 3: it again.
Speaker 5: The new John Feugel Sang Show every day at dwelve
Speaker 5: noon on Serious XM Progress Channel one twenty seven or
Speaker 5: on the Serious XMN.
Speaker 4: Welcome back to the Oath in the Office.
Speaker 1: I'm John Fugel Sang alone with Professor Corey Bretschneider. I mean, Corey,
Speaker 1: you've written so much about constitutional guardrails. Which institutions do
Speaker 1: you think are under the greatest strain right now? Is
Speaker 1: is it Congress? Is it the courts? Is it federal agencies?
Speaker 1: Or is it the free than us?
Speaker 3: Well us, you know, it's all of the above.
Speaker 2: But I'm going to just continue our discussion from the
Speaker 2: first segment and talk about the federal agencies because what
Speaker 2: these agencies are supposed to be doing is carrying out
Speaker 2: the law, and we have laws passed by Congress.
Speaker 3: For instance.
Speaker 2: You know, if you're working for the Post Office, you're
Speaker 2: not supposed to be engaged in the subversion of democracy.
Speaker 2: And what's happened is that that whole idea that these
Speaker 2: agencies are bound by the law, that they also civil
Speaker 2: servants also take an oath of office to preserve, protect,
Speaker 2: and defend the constitution. And yet it's being undermined by
Speaker 2: this demand for loyalty at all costs by the President
Speaker 2: of the United States, and he's demanding that from postal officials.
Speaker 2: We're seeing that in the FCC, I which I know
Speaker 2: we're going to talk about, and you know, that's how
Speaker 2: this process of swallowing up the other branches, the administrative agencies,
Speaker 2: civil servants, jobs, the law, into the executive branch is happening.
Speaker 1: Well, let's talk about ABC. I mean, the FCC has
Speaker 1: been at war with the free media. You know, hey,
Speaker 1: they got Colbert fired and they've tried to get Kimmel fired.
Speaker 4: Lord knows.
Speaker 1: We don't give enough credit to Monday Night Football for
Speaker 1: making Sinclair back down on that last year. But ABC
Speaker 1: is arguing, Professor, that the FCC's review of their broadcast
Speaker 1: license is just retaliation for their editorial decisions. I mean,
Speaker 1: like freedom of speech subject to management approval, right, I mean,
Speaker 1: how seriously is that allegation on a constitutional level, because
Speaker 1: it certainly seems to be exactly what the hell is happening.
Speaker 2: Well, all these stories intersacked, and the story here is
Speaker 2: the story of the way that although the administration is
Speaker 2: claiming that CBS and other networks have voluntarily started to,
Speaker 2: you know, show more sympathy to the president voltarily, the
Speaker 2: real story is that they've done so under threat of
Speaker 2: having their licenses revoked. And some of these networks, CBS
Speaker 2: is you know, the worst defender, have just backed down.
Speaker 2: And what ABC is saying, thankfully, is I don't think so.
Speaker 2: You can't use the threat of retaliation to get us
Speaker 2: to supposedly volunteer to self censor.
Speaker 3: And this is called job boning.
Speaker 2: That's essentially what they're accusing the administration of and job boning.
Speaker 2: To go back to the episode with Senator Wide, and
Speaker 2: I hope listeners will go back and listen to that.
Speaker 2: It's really important legislation and important idea. The idea of
Speaker 2: job owning is that when government secretly forces you to
Speaker 2: do something, it's not any less of a First Amendment
Speaker 2: right than if it does it in the open.
Speaker 3: So there's a case, for instance, about a.
Speaker 2: Bookstore and Basically, the cops keep coming back and they're like,
Speaker 2: ban these books, you know, but they don't do it
Speaker 2: in the open.
Speaker 3: They do it in sort of secret threats.
Speaker 2: And the court says, you know, you can't can't go
Speaker 2: into a bookstore and tell them how to manage their
Speaker 2: internal dynamic and claim that it's voluntary.
Speaker 3: And you know, that's what's going on here.
Speaker 2: And so one of the things that I talked about
Speaker 2: with Senator Widen, which I'm increasingly interested in, is job
Speaker 2: bonning is hidden almost by definition. They're doing it in secret,
Speaker 2: and so we need legislation to start opening things up.
Speaker 2: And you know what, ABC, in making this complaint to
Speaker 2: the FCC and hopefully litigation full litigation will come after,
Speaker 2: is starting to give us an understanding of what's going on.
Speaker 3: They have the goods, they have the documents.
Speaker 2: They should be able to get more documents from Brandon Carr.
Speaker 2: But this is not only you know, bad, it is
Speaker 2: illegal activity.
Speaker 4: But this is how close and USTRA works.
Speaker 1: Nice constitutional norms be a shame as something happened to it, right,
Speaker 1: I mean, throughout our history have constitutional checks. I mean
Speaker 1: they've really depended a lot more on written law than
Speaker 1: on political norms right.
Speaker 2: Well, often, you know, that's a great way to put it,
Speaker 2: because how do you prove the violation of a right
Speaker 2: when it's being done in secret? And that's so much
Speaker 2: of this administration that we've talked about. How do you
Speaker 2: prove that Trump is ordering the Department of Justice and
Speaker 2: not just Todd Blanche but also Jay Clayton, the head
Speaker 2: of the Southern District of New York, to subpoena these journalists.
Speaker 3: It's happening in secret.
Speaker 2: Now eventually, you know, a lot of what I'm doing
Speaker 2: these days is looking in the Nixon and four documents
Speaker 2: and it comes to light, you know, decades later. But
Speaker 2: what legislation would do that allows us to peer into
Speaker 2: the dynamics of job owning would do is bring it
Speaker 2: to light sooner.
Speaker 3: And you know another thing that will bring it to
Speaker 3: light is this.
Speaker 2: Hopefully this case and thankfully, you know, this has been
Speaker 2: the last since Donald Trump was elected, these these months
Speaker 2: have been a story and often in failure of courage
Speaker 2: because people just give in. That's CBS, that's the universities
Speaker 2: like Vanderbilt that seem to be caming into this administration.
Speaker 2: That's the law firms like Sullivan and Cromwell that are
Speaker 2: going along with it. And in the networks again, CBS
Speaker 2: is almost like the poster child for non courage and
Speaker 2: ABC here is adding themselves to the law firms, universities,
Speaker 2: those who are fighting back.
Speaker 4: And I'm glad, Tolly God Corey.
Speaker 1: Do you understand this administration is so evil They've got
Speaker 1: us praising the Catholic bishops and Disney. That's how evil
Speaker 1: they are. We're embracing those institutions. Now, Look, this whole
Speaker 1: thing is nuts because it's like, I know enough to
Speaker 1: know that broadcast licenses aren't supposed to come with like
Speaker 1: editorial performance reviews, right, I mean, it's the FCC. They're
Speaker 1: not yelp, but they want this is all about content.
Speaker 1: And I know they have broad authority over broadcast licenses,
Speaker 1: but we've seen former FCC officials of both parties say
Speaker 1: that this is unprecedented. I mean, is there a dividing
Speaker 1: line where the regulation ends and the viewpoint discrimination begins.
Speaker 2: Well, the unprecedented, you know, I think that is a
Speaker 2: theme of this podcast that you hear it a lot,
Speaker 2: and if you you know, watch public media journalists who
Speaker 2: are doing a great job of covering this. The one
Speaker 2: issue that I often have is when they start talking
Speaker 2: about history and they say it's unprecedent. No, it's not unprecedent.
Speaker 2: We've seen total shutdowns of free speech in American history before,
Speaker 2: starting with John Adams, somebody who didn't.
Speaker 3: Believe in free speech at all.
Speaker 2: You thought, if you criticized the president of the United States,
Speaker 2: you should go to prison. And in fact he had
Speaker 2: written into the Sedition Act was the idea that it
Speaker 2: was illegal to criticize the president, but it was fine
Speaker 2: to criticize the vice president. It was Thomas Jefferson, the
Speaker 2: leader of the opposition party under the way presidential elections work, so.
Speaker 1: That that was worse getting started on those guys, I know, yeah, you.
Speaker 2: Know Woodrow Wilson, you know, advocated for the shutdown of
Speaker 2: leftist speech, including the Bernie Sanders of the time, who
Speaker 2: found himself on trial for his viewpoints of democratic socialism.
Speaker 2: Eugene Devi and you know ran for president from prison.
Speaker 3: So there is a long history.
Speaker 2: Unfortunately, the McCarthy period we could talk about as well.
Speaker 2: What's going on here is it's not in the open
Speaker 2: in the same way it's happening in secret, and yet
Speaker 2: it's in some ways that makes it more dangerous because
Speaker 2: it's harder to call it out. And that's why it's
Speaker 2: so important that we have these individuals who are willing
Speaker 2: to stand up to it.
Speaker 1: Well, that will bring us back to Koby because I mean,
Speaker 1: I guess, as we've discovered before, posting pictures of seashells
Speaker 1: as a gate crime.
Speaker 4: Corey, I need you to walk me through this. Now.
Speaker 1: We know that they've gone after James Comy because he
Speaker 1: saw some seashells that spelled out eighty six forty seven,
Speaker 1: took a picture, posted it on Instagram, and they're saying
Speaker 1: that this was somehow a death threat. We've talked extensively
Speaker 1: about how this is Donald Trump's m He punishes people
Speaker 1: who tell the truth about him by taking the court
Speaker 1: and trying to bankrupt them with legal fees over absolute
Speaker 1: rubbish cases like this. But Combe's attorneys are alleging that
Speaker 1: there was warrantless surveillance during an investigation into his eighty
Speaker 1: six forty seven Instagram post. Can you break that down?
Speaker 1: I mean, what has been accused and if it's proven,
Speaker 1: what rights would potentially be implicated here?
Speaker 2: Well, you know you have a right the United States
Speaker 2: Constitution against unreasonable search and seizure.
Speaker 3: And if you want to comply.
Speaker 2: If government wants to get a warrant to spy on
Speaker 2: us or to investigate us, it needs to get a warrant,
Speaker 2: needs to go to court and show that it has
Speaker 2: a reasonable suspicion that you know, there's some criminal activity here.
Speaker 2: And so you know, before the indictment, it looks like
Speaker 2: that's what was going on, that they didn't go to court,
Speaker 2: they didn't follow the procedure, that they were just basically.
Speaker 3: Spying on their opponents.
Speaker 2: This is, you know, is talking about precedented. This is
Speaker 2: very Nixonian. This was what the plumbers were all about.
Speaker 2: What Nixon was trying to do with the FBI, getting
Speaker 2: them to spy on his opponents and you know, including
Speaker 2: in this case a former FBI director. So no, you
Speaker 2: can't do that. I mean, I have to say something
Speaker 2: about the case. As bad as this is, you know,
Speaker 2: warrantless surveyed because questions. I mean, when I teach, I've
Speaker 2: written a book about the First Amendment called When the
Speaker 2: State Speaks, What should it say? All about the idea
Speaker 2: about the freedom of speech and when government itself can
Speaker 2: share its own opinions without violating our rights. And you know,
Speaker 2: I've taught First Amendment and a variety of law schools,
Speaker 2: including the one which I will say I have enormous
Speaker 2: love foreign respect at Harvard University who are fighting back,
Speaker 2: and when I did that class, this example would be
Speaker 2: the kind of thing I would say in the beginning, like,
Speaker 2: let me give you something that's like so obvious that
Speaker 2: you can't do it, and trying to claim that somebody
Speaker 2: is issuing a threat when they're obviously using one of
Speaker 2: the most common expressions out there eighty six somebody doesn't mean,
Speaker 2: you know, well from their job, doesn't mean kill them.
Speaker 4: It means cancel that what I mean is.
Speaker 2: And so it's just almost like so much of Trump's
Speaker 2: administration is like this that it just strains credulity to
Speaker 2: try to think about the way in which there even
Speaker 2: is an argument about this. You know, the First Amendment
Speaker 2: says Congress shall make no law abridging the freedom of speech.
Speaker 3: But I also will add.
Speaker 2: To that that you know, you could give an example
Speaker 2: that would just scream an abridgment of rereadom of speech
Speaker 2: and saying that you go to prison for eighty six
Speaker 2: forty seven is as it's almost like saying I hate
Speaker 2: free speech. That's what Donald Trump's doing, and DOJ is
Speaker 2: doing and bringing these charges.
Speaker 1: Well, and again, let's be honest. I mean, tell me
Speaker 1: if I'm wrong about this professor. But like this case
Speaker 1: against Comy, it's already dead, right, it's never going anywhere.
Speaker 1: They know this case is garbage. They are just using
Speaker 1: the court system to harass this man because that is
Speaker 1: what Donald Trump has done with the court system, because
Speaker 1: he inherited a lot of money and you didn't, and
Speaker 1: this is how he beats people up in the courts.
Speaker 1: The case itself isn't going anywhere, but their defense attorneys
Speaker 1: are saying that after this whole thing happened with the photo,
Speaker 1: the Secret Service, without a warrant and at the direction
Speaker 1: of an unnamed high level DOJ official, did physical surveillance
Speaker 1: and they tracked his cell phone as he and his
Speaker 1: wife did a drive from North Carolina to Virginia. I
Speaker 1: mean that seems rather black and white when it comes
Speaker 1: to legality, doesn't it corny?
Speaker 2: Yeah, because it goes to you know, it's a it's
Speaker 2: a free speech violation, and B it's obviously a selected
Speaker 2: prosecution where they're going after the individual not for a
Speaker 2: crime that was committed.
Speaker 3: They couldn't care less about the crime. They're looking for anything.
Speaker 2: And my guess is that James Gommi is such a
Speaker 2: straight shooter that there is no crime, so they had
Speaker 2: to just make something up. But you know, again, here's
Speaker 2: what's scary about the case. It's so obviously a violation
Speaker 2: of his rights to the free speech and also his
Speaker 2: rights against unreasonable search and seizure. We're adding to that now,
Speaker 2: and yet it isn't dead. And even though it's unlikely
Speaker 2: I agree that he's going to get a conviction, or
Speaker 2: that this will get to a jury, or that a
Speaker 2: jury would actually agree with any of it is it
Speaker 2: doesn't matter. That's not what they're trying to do. They're
Speaker 2: just trying to a scare him and be scare the
Speaker 2: rest of us, because if they could do it to him,
Speaker 2: they could do it to you at me, John. I mean,
Speaker 2: that's really the bottom line.
Speaker 1: It's important they are They are trying to you know,
Speaker 1: stochastic self censorship is the name of the game. And again,
Speaker 1: the filing also alleges that investigative updates were being provided
Speaker 1: directly to Air Force One. Again, Professor liked the New
Speaker 1: York Times journalists. If it can be proven that the
Speaker 1: president was directing this campaign of harassment and retribution, then
Speaker 1: we're into some very black and white Nicksonian territory.
Speaker 4: Right, That's right.
Speaker 2: I mean that really was what Nixon was trying to
Speaker 2: do in all points, was control all aspects of the government, control,
Speaker 2: you know, the Department of Justice. He actually imagined using
Speaker 2: special prosecutors to attack his opponents. He certainly demanded the
Speaker 2: prosecution of Daniel Elsberg for the release of the Pentagon papers,
Speaker 2: and they knew they couldn't win that case, so they
Speaker 2: ordered all sorts of dirty tricks around it. And you're
Speaker 2: seeing the difference again. They were often stopped by people
Speaker 2: like Elliott Richardson, people who might have been partisan Republicans,
Speaker 2: but who aren't going to go so far as to
Speaker 2: enable it. What's different now is that the Todd Blanches
Speaker 2: of the world. I'll add Jake Clayton to that list too,
Speaker 2: talking about the New York case, and so many of
Speaker 2: the US attorneys miss purerou instance with her now thankfully
Speaker 2: ended prosecution of somebody supposedly for terrorism and destroying the
Speaker 2: reflecting pool that Donald Trump couldn't manage to make blue.
Speaker 2: So all of these are things I think that wouldn't
Speaker 2: have happened in prior administrations. You would have had more
Speaker 2: secret ways of doing it, or in the Nixon case,
Speaker 2: he was trying and stopped often. But you know what's
Speaker 2: so scary is that this Department of Justice is turning
Speaker 2: into the personal lawyers for the president. I have to
Speaker 2: say something John about history, because just to shape how
Speaker 2: important this is. At the founding, one of the chief
Speaker 2: objections to the whole system was that the attorney general
Speaker 2: was going to work for the president. And that was
Speaker 2: the objection to the unitary executive in New York, for instance,
Speaker 2: which they had as a model Letitia James. The attorney
Speaker 2: general is independently elected. That gives her a way of
Speaker 2: saying no to the Andrew Cuomo's of the world. And
Speaker 2: if we would have had that situation elected independent attorney
Speaker 2: general at the federal level, that person would just say
Speaker 2: no to Trump.
Speaker 3: But that's not the system.
Speaker 2: System is in which the attorney general is in the cabinet,
Speaker 2: in the executive branch. And that's what we're seeing basically
Speaker 2: eroding our democracy.
Speaker 1: And thank you for mentioning, Judge Janine. I know we're
Speaker 1: not covering her this week, but as someone who's been
Speaker 1: on her show and hung out in her office, it's
Speaker 1: amazing to see America's most famous boxed wine enthusiast be
Speaker 1: demoted to deep state trader because she made the catastrophic
Speaker 1: sin of looking at the reflecting pool evidence and not
Speaker 1: putting innocent Americans in jail's.
Speaker 3: You have a boxed wine with her? Is that?
Speaker 4: No?
Speaker 1: I know I did not know. My eyes still sting
Speaker 1: from the scent of it. So you mentioned, you mentioned, Yeah,
Speaker 1: she didn't like me on her show. I'll tell you
Speaker 1: that story. Sometimes. You mentioned Jay Clayton, and he's tell
Speaker 1: us the story. I did her show, and you know
Speaker 1: it's it's not that satisfying.
Speaker 2: You know.
Speaker 1: I just said to her, she was just so nasty,
Speaker 1: and I finally said on the air, you have liberal friends.
Speaker 1: She said, I admit you're a liberal. I'm like, I'm like,
Speaker 1: what do you mean. He goes, admit you're a liberal?
Speaker 1: And I'm like, I'm a liberal according to the dictionary definition.
Speaker 1: She goes, no, it'd make you're a liberal. I'm like, well,
Speaker 1: I am the way George Washington intended the word the
Speaker 1: way Jesus was it make you a liberal? And I said, Judge,
Speaker 1: I'll admit I'm a liberal if you admit to your
Speaker 1: audience that you live in New York City and have
Speaker 1: liberal friends. And I was never invited back on that
Speaker 1: show after that. So aren't you glad you dragged that out?
Speaker 1: So let me ask you, though, Jake Clayton your handshake, buddy.
Speaker 1: He's now been confirmed as Director of National Intelligence. It
Speaker 1: was Tulsa that it was Pulty, that it was Chanye
Speaker 1: and Clayton that was Pulty. Next year it's going to
Speaker 1: be Kid Rocks. Hepatitis gets this job. But obviously there's
Speaker 1: a lot of constitutional concerns. Jay Clayton seems to have
Speaker 1: got the job because he was willing to go on
Speaker 1: CNBC and say, oh, there might have been voter irregularity
Speaker 1: in California. Three days later he gets the offer. But
Speaker 1: while this is happening, our intelligence community is undergoing significant
Speaker 1: workforce reductions, I guess, and that's one way to reduce intelligence, right,
Speaker 1: But are there constitutional concerns when major national security institutions
Speaker 1: are being substantially downsized by the executive branch? This is
Speaker 1: again national security stuff they're downsizing.
Speaker 2: Yeah, I mean necessarily is a way to bring the
Speaker 2: point home. So the guy Jake Clayton, yes, I will
Speaker 2: admit I have shook in his hand.
Speaker 1: I regret, Okay, that's okay. I broke bread with Jude Janine.
Speaker 1: We're all sinners, yet no one's.
Speaker 4: Better than yeah.
Speaker 3: You know.
Speaker 2: The fact is that the same person that we've been
Speaker 2: talking about, who may be under orders of Donald Trump
Speaker 2: or Todd Blanche but regardless of who ordered it, he
Speaker 2: did it subpoena these journalists in an attempt to intimidate them,
Speaker 2: and there was no legal reason to do so. And
Speaker 2: now they're trying to back off, and it wasn't They
Speaker 2: weren't targets.
Speaker 3: Of the investigation. Bottom line is he.
Speaker 2: Did it, and he brought them to the grand jury
Speaker 2: in order to scare them. And now that guy is
Speaker 2: going to be given the position he is not going
Speaker 2: to be. He is the Director of National Intelligence that
Speaker 2: gives him control over this enormous surveillance apparatus. We talked
Speaker 2: before about unreasonable search and seizure. One of the problems
Speaker 2: with the DNI, with the entire surveillance system, is that
Speaker 2: there's a massive amount of search that's being done supposedly
Speaker 2: to stop terrorists. But we now know increasingly that some
Speaker 2: of these warrantless searches, these are searches without a warrant,
Speaker 2: are catching up American citizens.
Speaker 3: And who's the guy that's.
Speaker 2: Going to be able to kind of use these weekly
Speaker 2: enforced rules, these exceptions to the Constitution in order to
Speaker 2: make the decision of who to go. Well, this person
Speaker 2: could use this international surveillance state to go after the
Speaker 2: political opponents of Donald Trump. Now that would have sounded
Speaker 2: totally paranoid. I think three years ago.
Speaker 3: It's not paranoid at all. There's good reasons. That's exactly
Speaker 3: what's happening.
Speaker 1: That's why Bill Poulti was made acting DNI because he
Speaker 1: had no experience, but he was a mortgage guy, and
Speaker 1: so he abused the mechanisms of national intelligence to harass
Speaker 1: Letitia James, to try to go after people who've told
Speaker 1: the truth about Trump and see if they have real
Speaker 1: estate problems he could prosecute and exploit. But I mean, again,
Speaker 1: this is Donald Trump, right and they're reducing intelligence like
Speaker 1: they're downsizing spies. China and Russia are updating their linkedins
Speaker 1: right now. I mean, shouldn't Congress exercise a little more
Speaker 1: oversight regarding reductions in intelligence capacity when there are concerns
Speaker 1: that a president I don't know could be compromised by
Speaker 1: a foreign entity.
Speaker 3: Yeah, I mean, you know again in the.
Speaker 4: Answer story, hold, I mean, this is terrifying.
Speaker 2: You know, I want to just bring together this story.
Speaker 2: I think polls together so many of the different threads, really,
Speaker 2: all of them that we've been talking about today, because
Speaker 2: you have somebody who was thought, I should say originally
Speaker 2: to be a person that would stand up to Donald Trump.
Speaker 3: And that's why, you know he was the head of
Speaker 3: the SEC.
Speaker 2: The thought was if he is the director of National Intelligence,
Speaker 2: he can be confirmed because he has integrity. But the
Speaker 2: second that those subpoenas happen for those journalists, he was
Speaker 2: making it clear he was sending a message to one
Speaker 2: person that no, he's not some schoolboy, He's not this
Speaker 2: choir boy. He is somebody that is going to do
Speaker 2: the bidding of the president of the United States. And
Speaker 2: now he's being put into position where, yeah, he will
Speaker 2: have enormous access to the information of Americans and is
Speaker 2: he going to use it to spy on American citizens
Speaker 2: who are opponents of the president. I don't have any
Speaker 2: confidence that he won't, and in fact, in all likelihoods,
Speaker 2: given what we saw with these subpoenas, he will.
Speaker 1: Have you seen the Odyssey, Corey, I'm looking for way
Speaker 1: to get out of this beat. I'm looking for something positive.
Speaker 3: Did you like him? Well, we always want to talk
Speaker 3: about heroes.
Speaker 2: And you know, there's a debate about The Odyssey that
Speaker 2: I'm following among you know, whether or not did they
Speaker 2: basically turn this into an anti war film when really.
Speaker 3: The Odyssey is not. It's about glory.
Speaker 2: You know, there are all these academic arguments it's a
Speaker 2: film that really is about heroism, about.
Speaker 3: Wanting to go home. You know, I don't know.
Speaker 2: I don't know how to tie it to the moment,
Speaker 2: to be honest, John, But I feel like it's something
Speaker 2: people should see.
Speaker 1: Should everyone should see. It's a film about cinema, and
Speaker 1: it's the greatest reason to go to the cinema. I
Speaker 1: saw it in Imax in LA two weeks ago, and
Speaker 1: I can't wait to see it Imax again several years
Speaker 1: from now when I can get a ticket.
Speaker 4: It's just amazing.
Speaker 2: In New York where I am, I said, there was
Speaker 2: a showing that there was one seat available. I think
Speaker 2: it was five thirty am, so I was thinking about
Speaker 2: going again. That's awesome how much I liked it, and
Speaker 2: I probably will going. We'll see if I could get
Speaker 2: my wife to come with me, or I'll go by
Speaker 2: myself if I need to.
Speaker 1: See an imax. I mean the whole seat shaking. It
Speaker 1: just it really really works. I had a lot of
Speaker 1: problems with Oppenheimer, and you know, a lot of problem
Speaker 1: and great filmmaking, but a lot of storytelling problems, and
Speaker 1: this was just so satisfying and a great time in
Speaker 1: the movies.
Speaker 2: We don't talk enough about the idea that we're covering
Speaker 2: these stories week after week. They are depressing. It is
Speaker 2: an obligation to know about them, and I think, by
Speaker 2: the way, people should be educating their kids to know
Speaker 2: about the horror of what's happening. But it's all in
Speaker 2: the hope that we'll recover and there also are ways
Speaker 2: in the midst of it to reclaim our humanity, and
Speaker 2: that's one thing that works of art do, including this one.
Speaker 2: And so you know, we'll keep going to the movies
Speaker 2: even as we discuss the attempted destruction of the minds.
Speaker 1: Yeap, that's what it's looking like. All right, we got
Speaker 1: to take another break back in just a moment. This
Speaker 1: is the Oath in the Office.
Speaker 6: Hey all, Clean Kershner here, So friends, I hope you'll
Speaker 6: join me on my audio podcast, Justice Matters.
Speaker 4: You care about.
Speaker 6: Ethics and government, criminal justice, reform, a conflict free federal judiciary.
Speaker 4: I thought so.
Speaker 6: On Justice Matters, we take on issues involving the need
Speaker 6: to reform our government and it's institutions, and we talk
Speaker 6: about real, achievable reform. I hope you'll join us. Look
Speaker 6: for Justice Matters wherever you usually get your podcasts.
Speaker 1: Welcome back to the Oath in the Office podcast. I'm
Speaker 1: John Fugel Sang and I got to say Professor Corey
Speaker 1: Bretschneider is a man who spent years studying constitutional crises.
Speaker 1: He never expected them to become serialized TV. Corey, I mean,
Speaker 1: when we look across all these issues that we've covered,
Speaker 1: the DOJ investigations, the election administration, the media, regulation and harassment,
Speaker 1: restructuring of intelligence, are there any common constitutional threads besides
Speaker 1: oh my god, our hair's on fire.
Speaker 2: You know, I think you've got one thing. I was
Speaker 2: on CNN today talking about Blanche and one thing that
Speaker 2: you know, this John from doing your various shows as
Speaker 2: a guest, there's often a tendency to just sort of
Speaker 2: break down the story in the moment, to do a
Speaker 2: lot of prediction, to do a sort of referee, you know,
Speaker 2: or who's ahead scorekeeping. And I think the real key,
Speaker 2: the whole reason why I wanted to start the Oath
Speaker 2: in the Office podcast with you, is to tie the
Speaker 2: stories together, because there really is one story, and that's
Speaker 2: that the president pledges to protect the law under the Constitution.
Speaker 2: He has to say that the first few seconds in office,
Speaker 2: and every moment each of these stories is not just
Speaker 2: about something that we disagree with or a partisan dispute,
Speaker 2: but really is an attack on democracy. And sometimes, you know,
Speaker 2: one thing that really hurts, frankly, is when I hear
Speaker 2: people say if I'm attacking Donald Trump, that I'm being partisan.
Speaker 2: I am a professor of constitutional law who cares about democracy.
Speaker 2: That's the reason I'm doing this stuff, because what Trump
Speaker 2: is about each moment each of these stories is not
Speaker 2: a normal partisan disagreement.
Speaker 3: It is an.
Speaker 2: Attack on the whole creation of the American Republic and
Speaker 2: really an attempt to turn it either into a monarchy.
Speaker 2: That's probably his fantasy or more likely an authoritarian dictatorship
Speaker 2: and through things like the unitary executive. Unfortunately, he's succeeding,
Speaker 2: you know, over and over. He hasn't won yet.
Speaker 3: But that's what ties all these stories together.
Speaker 1: It just seems like increasingly our major political disputes always
Speaker 1: just seem to end up in front of the Supreme Court,
Speaker 1: Like the Supreme Court is now America's customer service department
Speaker 1: for everything. I mean, is that healthy for a constitutional democracy?
Speaker 4: Ooka?
Speaker 2: I think the Supreme Court should have a role in
Speaker 2: protecting the rights of democracy. It should have protected rights
Speaker 2: of free speech. In the Eugene Debs case, it didn't.
Speaker 2: Sometimes it has. It protected the New York Times in
Speaker 2: the Pentagon Papers case in which Daniel Ellsberg leaked the
Speaker 2: secret history of the war. It has moments throughout American history,
Speaker 2: most famously during the civil rights movement. Of course, Brown
Speaker 2: versus Board of Education ruling that Topeka, Kansas is for
Speaker 2: segregation of students was on constitutional. Those are moments where
Speaker 2: the Court is active and yet doing the right thing.
Speaker 3: But what we're seeing increasingly is the.
Speaker 2: Control of this court by government lawyers, and again from
Speaker 2: the Reagan administration.
Speaker 3: Lawyers Alito and Roberts.
Speaker 2: Instead of going to Justice Alito, Justice Roberts are going
Speaker 2: the lawyers Alito and Roberts trying to engineer a system
Speaker 2: that swallows up the other branches of government into the
Speaker 2: executive branch. And nowhere you know that the force that
Speaker 2: we saw that with right before this president won election,
Speaker 2: actually the day after my book came out, threatening that
Speaker 2: the Supreme Court often mikes crises worse rather than better,
Speaker 2: was in that immunity case, which was essentially a green
Speaker 2: light for all of it. We saw it too in
Speaker 2: the destruction of independent agencies. So you know, there is
Speaker 2: a role for a Supreme Court. I'm not an abolished
Speaker 2: the Supreme Court person, but I certainly don't want to
Speaker 2: see it commandeered by government lawyers with an agenda to
Speaker 2: try to help, by the way, not.
Speaker 3: Just any truth event.
Speaker 2: It seem fine in stopping Biden, you know, in all
Speaker 2: sorts of ways, but to help this president basically succeed
Speaker 2: in all his worst ambitions.
Speaker 1: Yes, I mean, I'm sure Congress will do something about it,
Speaker 1: but I mean, Corey, congressional oversight is just what is it?
Speaker 3: This?
Speaker 1: It's just strongly worded disappointment at this point, are there
Speaker 1: any historical periods that could offer us useful comparisons to
Speaker 1: what we're going through today in terms of executive authority.
Speaker 3: I'm going to give you a really hopeful one.
Speaker 2: And one of the main things I hear from listeners
Speaker 2: is please give us some hope. So now here's a
Speaker 2: pretty hopeful one. There's a poll that was released and
Speaker 2: I spoke to the New Republic about this, and you
Speaker 2: can see my comments there in that story. But I'll
Speaker 2: tell you what I say, which is what the poll
Speaker 2: is showing, is that Donald Trump's approval ratings are plummeting,
Speaker 2: and they're plummeting on a very specific dimension, which is
Speaker 2: his threat to democracy and especially his corruption. That's what
Speaker 2: a lot of the polling was asking about. You see
Speaker 2: these numbers slipping and slipping. And I was asked by
Speaker 2: the writer of this New Republic article to comment on
Speaker 2: whether or not we had ever seen in a historical
Speaker 2: slippage like this, And the most immediate example was Richard Nixon.
Speaker 3: We did see it.
Speaker 2: He was re elected in nineteen seventy two, even as
Speaker 2: Watergate picked up.
Speaker 3: So it seems to care.
Speaker 2: But as the details of the corruption and when you
Speaker 2: heard him on the tapes, and when you heard him
Speaker 2: ordering the crimes, when you heard the way covering up
Speaker 2: the crimes, that's when the numbers started to go. Now,
Speaker 2: they went lower than they are now. For Trump, they
Speaker 2: went into the mid twenties. We're now in the low thirties.
Speaker 2: But it shows, you know, the impeachment didn't come by accident.
Speaker 2: Congress gets courage all of a sudden when the approval
Speaker 2: ratings go way down. So especially if Democrats take this Congress,
Speaker 2: I think it will go way down.
Speaker 3: I'll put one fine point on that, though.
Speaker 2: There is a difference between Nixon as much as I
Speaker 2: want to use that as an example of hope, because
Speaker 2: those low poll numbers were directly responsible. I think for
Speaker 2: the fact that I should say impeachment began in the
Speaker 2: House Judiciary Committee, and when Nixon saw that the votes
Speaker 2: were there to remove him, he resigned before there was
Speaker 2: a full impeachment in the House. And that would be
Speaker 2: an amazing moment here what.
Speaker 1: May never happened if Nixon and at Fox News, he
Speaker 1: would not have even opened the door for Bury Goldwater.
Speaker 3: Maybe I don't know.
Speaker 2: I mean, because when the numbers are that low, you know,
Speaker 2: Fox isn't going to save Trump.
Speaker 3: I don't think.
Speaker 2: I mean, if his numbers go into twenty five percent territory,
Speaker 2: we'll see.
Speaker 3: I think that.
Speaker 2: You know, Fox's whole point is to keep the numbers up, right,
Speaker 2: that's the idea.
Speaker 1: But no, no, there's Rupert. They're no different than Trump. They
Speaker 1: want to keep their numbers up. Rupert is tearing Trump
Speaker 1: to shreds in the Wall Street Journal every day and
Speaker 1: still selling him as our savior on Fox News. Rupert
Speaker 1: cares about his profits more than right or wrong when
Speaker 1: it comes to Trump and everything else.
Speaker 2: Well, I mean, it'll be an interesting example. I don't
Speaker 2: expect I should say. And I think this is the
Speaker 2: point you're making too. That Trump is gonna, you know,
Speaker 2: receive a bunch of Republicans who tell him to resign, No,
Speaker 2: please step down.
Speaker 3: That's not going to happen.
Speaker 2: But the question is whether or not the votes will
Speaker 2: be there as the numbers dip, And I think they
Speaker 2: might be even if Fox is giving him lip serves.
Speaker 2: And as you say, you know, in the same way
Speaker 2: that Ruber Murdoch's newspapers might turn on Trump even when
Speaker 2: Fox News doesn't. Eventually, Fox itself might turn on Trump,
Speaker 2: they might decide that, you know, it's good for ratings.
Speaker 2: That's going to be good for ratings to see another
Speaker 2: beachment and removal of a president, because that's very exciting.
Speaker 3: Anyway.
Speaker 2: Anyway, the numbers are plummeting. That is a hopeful thing.
Speaker 2: It's hopeful for the midterms especially. I should say one
Speaker 2: other thing about the midterms too, also on the note
Speaker 2: of hope, which is that you know, Victor orbon did
Speaker 2: everything he could to jerry mander, to essentially cheat in
Speaker 2: order to stay in power, and the numbers of people
Speaker 2: who came out in Hungary to vote against him were
Speaker 2: so enormous that it did make a difference. And that's
Speaker 2: what I'm hoping again that we'll see here, and these
Speaker 2: low poll numbers I think help help make that possible.
Speaker 2: One thing I was going to say too, is, you know,
Speaker 2: although there is this parallel the corruption here, there was
Speaker 2: corruption during Nixon.
Speaker 3: The corruption here is off the charts.
Speaker 2: You know, millions of dollars into this fund to fund
Speaker 2: your slush fund, you know, the cryptocurrency scams, the bride plane,
Speaker 2: I mean, a thing after things. So I just think
Speaker 2: that that momentum that we're seeing that's bringing down those
Speaker 2: numbers that that.
Speaker 3: Can only be a good thing.
Speaker 2: And I'm optimistic about what's to come once Democrats, as
Speaker 2: I believe they will at least take the House.
Speaker 4: Yeah, I think you're right.
Speaker 1: We will never see a few Republican senators stop Donald Trump,
Speaker 1: but maybe one or two of his own arteries.
Speaker 4: Professor Corey Breutschneider.
Speaker 1: What is the best way for our listeners to follow
Speaker 1: you and keep up with your work throughout the week?
Speaker 2: Well, you can find us wherever you get your podcasts.
Speaker 3: I keep seeing these great reviews.
Speaker 2: Pop up on Spotify, on Apple. There is also an
Speaker 2: Oath in the Office substack. There is a Oath in
Speaker 2: the Office YouTube which is takeing off. Check out all
Speaker 2: of these options. Listen to us wherever you get your podcasts.
Speaker 2: You could also buy my book The Presidents and the
Speaker 2: People Five leaders who threatened democracy and the citizens who
Speaker 2: fought to defend it, which is both all about the
Speaker 2: Nixon abuses in part Adam's abuses. I'll mention the other
Speaker 2: presidents Buchanan, Andrew Johnson, and Woodrow Wilson. But it's also
Speaker 2: about those who fought back, and that's where the hope
Speaker 2: comes from. And so what I'm doing every week is
Speaker 2: trying to draw inspiration from those amazing citizens who've saved
Speaker 2: us in the past, and hopefully we'll do it again.
Speaker 4: That's it.
Speaker 1: The previous constitutional crises did strengthen our institutions, so just
Speaker 1: think how great things will be when this freak show
Speaker 1: is over. Thank you all so much. I want to
Speaker 1: think Wendy and Baywilp when everyone who puts the show together.
Speaker 1: I host a show on Sirius XM Progress one twenty
Speaker 1: seven every day. We are now daytimes, five days a
Speaker 1: week noon two three eastern nine am to twelve noon Pacific.
Speaker 1: Thank you all so much for joining us, and thanks
Speaker 1: once again for being here on the Oath and the
Speaker 1: Office