Speaker 1: Welcome to episode one of The Oath in the Office,
Speaker 1: a brand new podcast about the Constitution, what it was,
Speaker 1: what it might still be, what it could still become.
Speaker 1: I am John Fugelsang, and I am so pleased to
Speaker 1: welcome the star of our show, the man who wrote
Speaker 1: the book The Oath in the Office, Professor Corey Bretschneider.
Speaker 2: Hello, Corey, Hi, John, Thanks so much for doing this.
Speaker 2: I'm so excited to be talking to you about this
Speaker 2: topic and such an important moment. And maybe I should
Speaker 2: just say that, in the first few seconds in office,
Speaker 2: the president takes an oath to preserve, protect, and defend
Speaker 2: the Constitution. But what we're facing at this moment, and
Speaker 2: the reason why we're talking, is that we are facing
Speaker 2: a president who's doing anything but that, who's really threatening
Speaker 2: to collapse the system. So that's the urgency that's really
Speaker 2: led us together to start this podcast.
Speaker 1: And that's why I was so intrigued to do this
Speaker 1: with you, Professor, because you've done my show on SiriusXM
Speaker 1: for years, and I've learned so much about the Constitution.
Speaker 1: I've actually been able to talk my way into a
Speaker 1: couple of law schools fraudulently based on how much I've
Speaker 1: learned from you, and I have to say, there's a
Speaker 1: lot of podcasts out there about the very, very curious
Speaker 1: predicament we're in. This is not a podcast where we're
Speaker 1: necessarily going to be talking about all the Trump supporters
Speaker 1: losing two billion dollars because they invested in his mean coin,
Speaker 1: although it's kind of hilarious. This is not a show
Speaker 1: about Secretary Jaegermeister telling Russia go ahead and keep Ukraine.
Speaker 1: And we're not really doing a show about apartheid nefo
Speaker 1: Baby's abusing ketamine, although they might come up. This is
Speaker 1: a show about the Constitution. This is a show about
Speaker 1: the oath a president takes. This is a show about
Speaker 1: the very real jeopardy we all find ourselves in. I'm
Speaker 1: guessing that's why you wanted to do this, Professor.
Speaker 2: Absolutely, this is a show prompted by how dire the
Speaker 2: moment is. And part of what I want us to
Speaker 2: do and what we plan to do, is to talk
Speaker 2: about the fact that it's not just some particular law
Speaker 2: or some misbehavior that's going on, but that there is
Speaker 2: a threat to the system as a whole, and that
Speaker 2: comes not just from some of the malicious intent of Trump,
Speaker 2: although I think that's part of it, or his crony
Speaker 2: Elon Mosk, who seems to know nothing about American democracy.
Speaker 2: We'll talk about that too. It comes from how powerful
Speaker 2: this office is. The commander in chief of the military
Speaker 2: control over an executive branch, and he wants total control
Speaker 2: over it. We'll talk about that. Of more than two
Speaker 2: million people, this is a powerful office, and at this moment,
Speaker 2: I don't think it's ever risk that this office is
Speaker 2: so dangerous that it could destroy the entire American system.
Speaker 2: And yet, at the same time, to go to the
Speaker 2: point of the podcast, I don't want people to lose hope.
Speaker 2: I don't think that we should lose hope. I think
Speaker 2: that we've seen these crises before, and as dire as
Speaker 2: this one is, we're going to get through it.
Speaker 1: I completely agree. Every night on Serious XM, my callers
Speaker 1: who weigh in, and a lot of the journalists I
Speaker 1: talk to, we read all of these op eds every day,
Speaker 1: people discussing are are we headed for a constitutional crisis?
Speaker 1: At what point does this Michigas officially become a constitutional crisis?
Speaker 1: Based on what I know, it seems like the constitutional
Speaker 1: crisis is already in progress. We are in it right now,
Speaker 1: whether people know about it, acknowledge it, or care.
Speaker 2: Do you agree? Definitely. I don't think that this is
Speaker 2: a question of whether we're going to enter one or
Speaker 2: it's going to get worse before we're there. We are
Speaker 2: here right now. And again that's the reason I think
Speaker 2: why we're talking to each other, that's the reason for
Speaker 2: a new podcast, because when you have a president who
Speaker 2: is not just creating executive orders that violate the Constitution.
Speaker 2: We'll talk about some of those, birthright citizenship for instance,
Speaker 2: the firing of the NLRB board member, but really doing
Speaker 2: it with an aim of consolidating total power within the
Speaker 2: executive branch. That's what's going on, and trying to use
Speaker 2: his appointments on the Supreme Court, three of them, to
Speaker 2: ratify that consolidation of total power, and to make use
Speaker 2: of what might have been more benign ideas like the
Speaker 2: unitary executive, to really move us towards a dictatorship, an
Speaker 2: elected dictatorship. That's what's happening right now. That's why it's
Speaker 2: not just a constitutional crisis. But I've been using the
Speaker 2: word coup. I think it's that serious. Coups sometimes happen
Speaker 2: through violent activity, through takeover, but they also can happen
Speaker 2: and have happened often in Latin America, through the president
Speaker 2: consolidating legal powers, usurping the courts, usurping the Congress into
Speaker 2: his own in this case, Trump's own power, and the
Speaker 2: threats to violate court orders just get to that as well.
Speaker 1: Is that a tough sell for you, Professor r I've
Speaker 1: talked about it with people who say, well, how can
Speaker 1: it be a coup? They've already got the power, They've
Speaker 1: got the White House, House and Senate. The power is
Speaker 1: already there. And you know, I'm not smart enough to
Speaker 1: explain it doesn't matter that they've already got the power.
Speaker 1: This is a coup not of the office, but of
Speaker 1: the entire structure of our government. This is South Africa
Speaker 1: and apartheid, Nepo baby taking over what the founding fathers want.
Speaker 1: And as you've pointed out many times, Cory, the founders
Speaker 1: left very specific instructions. They wrote it all down more
Speaker 1: than once.
Speaker 2: That's right. I mean, I think we have to look.
Speaker 2: America has been a model for democracies around the world,
Speaker 2: and where we've seen them fail, oftentimes in Latin American countries.
Speaker 2: What's happened is that from within the executive branch, the presidency,
Speaker 2: the other branches are essentially destroyed. And political scientists called
Speaker 2: these self coups or autocups. And that's I think what's
Speaker 2: happening right now, that he is consolidating power. The power
Speaker 2: of the purse, the power to make laws lies with Congress,
Speaker 2: and yet he is stealing that purse, stealing that power
Speaker 2: to make laws. With the help of Elon Musk, the
Speaker 2: power of the purse turns out to be located in
Speaker 2: an office in the Treasury department. Elon Musk figured out
Speaker 2: where that was and has gone in there and stolen it,
Speaker 2: even though the constitution doesn't give them that power. And
Speaker 2: the courts, the fundamental idea of American democracy is nobody's
Speaker 2: above the law, no person, not even a president, and
Speaker 2: the courts are supposed to be the ones to uphold it.
Speaker 2: So when you have this president and his cronies JD.
Speaker 2: Vance in particular, are threatening to disobey court orders, they're
Speaker 2: essentially announcing the coup. They're telling us in real time.
Speaker 2: American democracy isn't that we elect a president and then
Speaker 2: that person can do whatever he or she wants. We
Speaker 2: have laws on the books, the Clean Air Act, the
Speaker 2: Clean Water Act, and the president is not above the law,
Speaker 2: supposed to follow them, and we've really abandoned that.
Speaker 1: I mean, you'd think Trump would know. He already got
Speaker 1: impeached once for trying to tamper with funding Congress had
Speaker 1: already approved.
Speaker 2: That's what his.
Speaker 1: Impeachment for the Ukrainian phone call was all about. Congress
Speaker 1: had approved the funding. He tried to hold it back.
Speaker 1: I'd like to think he'd learn his lesson, but again,
Speaker 1: you know, if he believed in learning lessons, wouldn't paid
Speaker 1: all those kids to take his test for him at
Speaker 1: Wharton's School of Business. Now I'm looking at the headlines,
Speaker 1: and there's reason to feel optimistic. We see, as was
Speaker 1: so often the case in the first term, the judicial
Speaker 1: branch is there. It's protecting the guardrails. In the past
Speaker 1: couple of weeks, we've seen he can't freeze federal grants.
Speaker 1: He can't slash money for health research. They made him
Speaker 1: put back up the public health information. They took off
Speaker 1: the government websites. They can't just wipe out the US
Speaker 1: Agency for International Development. But it seems like the real
Speaker 1: test is not how well these judges are fighting back.
Speaker 1: The real test is if they decide to just not
Speaker 1: even listen to these courts and to move ahead with
Speaker 1: policies that have already been deemed illegal because who's going
Speaker 1: to stop them? And that seems to be the curious
Speaker 1: area we're occupying.
Speaker 2: Now, that's the frightening moment. And it's right to say
Speaker 2: that lower courts are doing their job. Many of these
Speaker 2: decisions are going to wind up in the hands of
Speaker 2: the Supreme Court, and we're going to talk about that.
Speaker 2: But what happens when the lower courts do their job
Speaker 2: or the Supreme Court does their job and the executive
Speaker 2: just doesn't listen. That really is unprecedented. Andrew Jackson supposedly
Speaker 2: said Justice Marshall has made his decision, now let him
Speaker 2: enforce it. He never said Thats versus Georgia isn't even
Speaker 2: a case about Andrew Jackson. So we're in unprecedented territory.
Speaker 2: The time that supposedly happened did not happen. And when
Speaker 2: you start to think through it, certainly the federal courts
Speaker 2: have the ability to finding criminal contempt federal officials who
Speaker 2: don't listen to them. But here's the problem. The president
Speaker 2: has the pardon power, and many of these federal officials
Speaker 2: who are going to be encouraged to disobey, or are
Speaker 2: being encouraged to disobey or might be might count on
Speaker 2: such a pardon. And of course Trump himself, although these
Speaker 2: cases are not about the question of criminal immunity, he
Speaker 2: has the incentive to bad behavior, to defy the courts
Speaker 2: because he knows he himself will never be found guilty,
Speaker 2: never even be indicted under the immunity case for any
Speaker 2: criminal action, even if it comes to that.
Speaker 1: Yeah, so this is the crazy thing you mentioned Andrew Jackson.
Speaker 1: I was going to ask you about that because I
Speaker 1: was raised believing the legend that Andrew Jackson brazenly defied
Speaker 1: the Supreme Court, and I've been walking around thinking, well,
Speaker 1: Andrew Jackson did it. We managed to survive. No one cares,
Speaker 1: but it doesn't make me feel any easier. And when
Speaker 1: I look at what's happening here, it's kind of everything
Speaker 1: you've said, Professor. I mean, he began his administration telling
Speaker 1: them not to enforce the TikTok ban that he fought
Speaker 1: for a year ago, that's been passed by Congress, upheld
Speaker 1: by the Supreme Court. So right away day one, he's
Speaker 1: disobeying a ban because I hope he's gotten a better
Speaker 1: bribe from China. The executive order to end the constitutional
Speaker 1: right of birthright citizenship ignores Supreme Court precedents, And just
Speaker 1: this week the judge in the federal grants case has
Speaker 1: said that the administration still has not abided by the
Speaker 1: court order to restart the federal grants. So I mean,
Speaker 1: if he's fine court orders now and White House counsel
Speaker 1: is sitting around letting him do it, do we still
Speaker 1: have checks and balances anymore?
Speaker 2: I think that's why I've been using the language of coup,
Speaker 2: because all of this isn't that he's ignorant. When you
Speaker 2: and I first met, I had written a piece called
Speaker 2: Trump versus the Constitution, and it was about how he
Speaker 2: really didn't understand even the most basic thing of the system.
Speaker 2: And my hope then and prediction was that the courts
Speaker 2: were going to stop them, they were going to teach
Speaker 2: him a constitutional lesson. But he really is hell band
Speaker 2: on absolute power. And part of the point of these
Speaker 2: massive turn of executive orders is to overwhelm the system,
Speaker 2: flood the zone, as they've been saying, and what that
Speaker 2: really means is to show his defiance of the Constitution.
Speaker 2: Part of that might mean defiance of courts, but he
Speaker 2: also is hoping and he might succeed in using the
Speaker 2: courts to remake his own power, to get rid of
Speaker 2: those checks and balances that we read about in seventh grade.
Speaker 2: So he really is It's not that he doesn't know, oh,
Speaker 2: that the birthright Citizenship Order is unconstitutional, it's that he
Speaker 2: wants to challenge the courts to stop them, and he
Speaker 2: is defying intentionally these basic textual guarantees protections of the Constitution.
Speaker 2: And I think that's true too, of firing the head
Speaker 2: of the NLRB. In all these cases, he's trying to
Speaker 2: remake the Constitution, and he's hoping that the people that
Speaker 2: he regards as his justices, these three members of the
Speaker 2: court that he's nominated and that we're confirmed, are going
Speaker 2: to back him up in his quest for consolidated power.
Speaker 1: My god, it's just like you know, you're raised in
Speaker 1: Civics class to understand that Congress controls the purse rings.
Speaker 1: And now Trump with Elon Musk and Elon's little in
Speaker 1: cell clown posse of hackers have now decided no, they're
Speaker 1: going to try to pull the money out of the
Speaker 1: Treasury and apparently dump it into a Donald Trump sovereign
Speaker 1: slush fund where he can essentially be a king sitting
Speaker 1: on a pile of gold and give it out as
Speaker 1: he sees fifth and Congress just, I guess, shows up
Speaker 1: to work and no longer controls the purse strings and
Speaker 1: the Constitution, like the New Testament has been thrown out
Speaker 1: by these people. I mean, it seems insane, Corey, But
Speaker 1: you know al Gore tried to have a sovereign wealth fund.
Speaker 1: He called it a lock box because they had taxed
Speaker 1: their rich a little tiny bit and they had a
Speaker 1: budget surplus with a balanced budget, and they wanted to
Speaker 1: use that money to protect poor people and strengthen social security.
Speaker 1: This is something very different. They are trying to take
Speaker 1: the money away from Congress and let King man Baby
Speaker 1: hand it out to whoever kisses his butt the most publicly.
Speaker 2: That's right. I mean, what we learned in Civics class
Speaker 2: is the right understanding of the Constitution that Congress makes
Speaker 2: the law and Congress allocates funds, and this freeze is
Speaker 2: really an attempt to reverse that, to put in the
Speaker 2: hands of the executive branch, the ability to impound funds.
Speaker 2: There's a statute, by the way, after Nixon, the Impoundment Act,
Speaker 2: that stops the president from trying to simply unilaterally decide
Speaker 2: what to spend or not. And let's think about how
Speaker 2: important this is to the system. If it's not Congress,
Speaker 2: but it's the president that can decide what to spend
Speaker 2: or not, in Congress's power is essentially eliminated. And I
Speaker 2: think that's the goal here. And that's true too of
Speaker 2: the other cases that we're going to talk about.
Speaker 1: Okay, do go anywhere. We got to take a quick
Speaker 1: break to make some money to pay for our own
Speaker 1: defense lawyers. We'll be right back. This is the Oath
Speaker 1: in the Office. Welcome back to the Oath in the Office.
Speaker 1: I'm John fugel Sang Professor Corey. Let me ask you
Speaker 1: about the birthright citizenship case. It was one of the
Speaker 1: first things he did coming through. And you know, Professor,
Speaker 1: we've talked about this. I don't believe Donald Trump or
Speaker 1: the Republican Party care about undocuted mented immigration at all.
Speaker 1: I don't believe they care about it anywhere. They care
Speaker 1: about abortion. It's an issue to get votes. If they
Speaker 1: wanted to stop border crossings, I've always said they would
Speaker 1: incarcerate the employers who put up a giant help want
Speaker 1: that sign at our border. The only reason they cross
Speaker 1: our border is for all those jobs white employers dangle
Speaker 1: fro undocumented people, and when the Republican Party refuses to
Speaker 1: go after those employers, it seems like it's, say, just
Speaker 1: a racket to get votes. So when I first heard
Speaker 1: that he was doing this birthright citizenship thing, I thought, well,
Speaker 1: that's wacky and racist and probably won't go anywhere. But
Speaker 1: as the weeks have gone by, Toy, I've begun to worry, Well,
Speaker 1: what if they just did it as a trial balloon.
Speaker 1: What if that was just a focus group to see
Speaker 1: right off the bat, how much can we get away
Speaker 1: with and let's start weakening the guardrails.
Speaker 2: That's exactly what I think is going on here. And
Speaker 2: let's just lay out for listeners exactly why I don't
Speaker 2: think this is a two sides issue. There's not a
Speaker 2: real debate about him. The Constitution says very clearly that
Speaker 2: if you're born in the United States, you are a citizen,
Speaker 2: and it doesn't have anything about undocumented people. And we
Speaker 2: have a case Wan Kim Mark in the nineteenth century
Speaker 2: that really settled this question, made it settle law. This
Speaker 2: was a a Chinese national who in the United States
Speaker 2: had a child, and the question was, is this person
Speaker 2: the parent was not a citizen. Is this child a
Speaker 2: citizen of the United States? And the court said, just
Speaker 2: extremely clearly, Look, the fourteenth Amendment says what it says.
Speaker 2: And this wasn't a progressive court, by the way, and
Speaker 2: yet they were too embarrassed to say otherwise. They said,
Speaker 2: if you're born in the United States, you are a citizen.
Speaker 2: Now it does say that those subject to the jurisdiction,
Speaker 2: if the parents are subject to the jurisdiction, that's the requirement.
Speaker 2: But that was really about trying to make sure that
Speaker 2: if you were an ambassador, for instance, that your child
Speaker 2: wouldn't automatically be a citizen, or if there was in
Speaker 2: some case you could imagine an invading army that wouldn't
Speaker 2: the children of that invading army wouldn't be citizens. But
Speaker 2: absent that, it's a pretty absolute It is an absolute protection,
Speaker 2: and it only is the most I should say here too,
Speaker 2: the most fringe figures in all this. John Eastman who
Speaker 2: is under indictment, and Arizona, who designed the insurrection. Really
Speaker 2: with Donald Trump, those are the kind of people trying
Speaker 2: to defend this idea. And I think here are conservatives
Speaker 2: and liberals, anyone who understands what the text says is
Speaker 2: lining up against Trump. Yet, why would he do this?
Speaker 2: To go to your question, given how clear it is,
Speaker 2: and it's to try to really send a shot at
Speaker 2: the Constitution. It is a cannon shot at the Constitution,
Speaker 2: an attempt to make it clear that he seeks absolute
Speaker 2: power and wants to destroy this document. If it was
Speaker 2: just one case, maybe that wouldn't be what's happening. But
Speaker 2: it's happening across the domain that he's challenging any limit
Speaker 2: on his own power.
Speaker 1: So can I ask you one more goofy question about
Speaker 1: the birthright citizenship because as you know, our indigenous brothers
Speaker 1: and sisters have had American American citizenship since nineteen twenty four,
Speaker 1: Happy centennial, y'all. What's crazy to me? If you follow
Speaker 1: Donald Trump's career, you know he despises American Indians going
Speaker 1: back to his days in the casinos and you know,
Speaker 1: making Pocahontas into a slur. But the Justice Department is
Speaker 1: defending this birthright citizenship order by arguing that immigrant kids
Speaker 1: who are covered by birthright citizenship can't be citizens because
Speaker 1: the children of Native Americans aren't really US citizens. This
Speaker 1: is so daffy and stupid. It almost seems like they're
Speaker 1: looking to be looked out of court. But they really
Speaker 1: submitted this from the Pambandi Justice Department that Indians aren't
Speaker 1: really citizens. Why would they do something so blatantly unconstitutional
Speaker 1: and historically inaccurate. Are they just trying to see what
Speaker 1: shit will stick to the wall.
Speaker 2: No, they're trying to pay fast and loose with history
Speaker 2: and confuse people. And I think they're succeeding in that, unfortunately,
Speaker 2: because what the court did say in the Wankim Mark case,
Speaker 2: and this was before Native Americans were citizens at least many,
Speaker 2: and they were saying, look, if you're a member of
Speaker 2: a Native American tribe at the time that is not
Speaker 2: doesn't have American citizenship, well then you're not covered by
Speaker 2: this birthright citizenship. But of course, as you said, in
Speaker 2: the nineteen twenties, things change, Native Americans are given citizenships.
Speaker 2: So they're trying to really use this historical analogy and
Speaker 2: say that there's somehow an analogy between undocumented people now
Speaker 2: coming from other countries and the unique situation that Native
Speaker 2: Americans were in before the nineteen twenties. It is, I
Speaker 2: would just say, very clearly a confusion of the issue.
Speaker 2: The other argument that I've heard floated, and I mean,
Speaker 2: I can't imagine they're going to say this before the
Speaker 2: Supreme Court when it gets there, but they're certainly thinking
Speaker 2: about it, is that the analogy is between undocumented people
Speaker 2: and an invading army, and that rhetoric is just beyond
Speaker 2: racist comprehensible. But that's what we're dealing with, that they
Speaker 2: think that somehow that families coming here to seek a
Speaker 2: better life or analogous to some occupying army, that should
Speaker 2: be called out for the racist and horrible insult that
Speaker 2: it is. And that's what this whole case is. It
Speaker 2: really is an attempt to undo and let's go back
Speaker 2: to the principle, the idea of the fourteenth Amendment, including
Speaker 2: the birthright citizenship clause, including the idea of equal protection,
Speaker 2: is an attempt to get rid of the horrific dread
Speaker 2: Scott case that said that black Americans are not people
Speaker 2: under the Constitution and to replace that evil idea with
Speaker 2: a notion that we are all equal, regardless of who
Speaker 2: our parents are. Frederick Douglass talked about the idea of
Speaker 2: the corruption of blood, the practice of essentially allowing the
Speaker 2: next generation to inherit the punishments and crimes of a
Speaker 2: previous generation, and how antithetical that was to the notion
Speaker 2: of we the people, and this clause by saying that
Speaker 2: we are all Americans if we're born here full stop,
Speaker 2: is a way of guaranteeing that idea of equality, getting
Speaker 2: rid of this notion that our status is dependent on
Speaker 2: our parents' status. And the attack on it really is
Speaker 2: not just an attack on the children of undocumented people. Well,
Speaker 2: it's an attack on the idea of American democracy and
Speaker 2: the notion of equal protection.
Speaker 1: Amen. You know, I was thinking, and Culter tweeted a
Speaker 1: while ago, because so much of this is about the
Speaker 1: fact that Caucasians are going to be a minority in
Speaker 1: this country in the year twenty forty five. We're not
Speaker 1: going away, folks, but we're going to be under fifty percent.
Speaker 1: We're still going to control everything. Don't worry. Once we're
Speaker 1: a minority, will still control the systems of government itself.
Speaker 1: But white people. Some white people are freaking out about this.
Speaker 1: They don't like the way they've treated minorities and they
Speaker 1: don't want to be treated the same way themselves. And
Speaker 1: Culter had to tweet a while back saying that she
Speaker 1: thought that we should have a law that all four
Speaker 1: of your grandparents should have been born in America in
Speaker 1: order to have the right to vote. And I thought,
Speaker 1: my god, with that policy, all of Trump's children wouldn't
Speaker 1: be allowed to vote, and Trump wouldn't either. Maybe I
Speaker 1: like that, But do you think you're going to see
Speaker 1: any conservatives rising up to say this is wrong? Will
Speaker 1: any conservatives decide that the Constitution that they studied in
Speaker 1: law school means more to them than keeping their job
Speaker 1: and avoiding mean tweets?
Speaker 2: I think it depends on the case. So I've been hardened,
Speaker 2: actually to see that this birthright citizenship nonsense is so
Speaker 2: extreme that conservatives are saying, we can read, we have
Speaker 2: a written constitution, you can't do this. Even John Yu,
Speaker 2: who is not exactly a defender of civil liberties, the
Speaker 2: person during the Bush administration, of course, extended the torture
Speaker 2: program of the Bush administration, says, no, I can read
Speaker 2: and you can't do this. Now. There are going to
Speaker 2: be other cases, ones that will get to that. I
Speaker 2: think conservatives will go along. But here it is not
Speaker 2: that this is a two sides and we disagree. It
Speaker 2: is a blatant attempt to try to destroy the Constitution.
Speaker 2: I do want to say there was, there are There's
Speaker 2: an important written descent in the Wan kim Ark case,
Speaker 2: the case about the Chinese national that has a child
Speaker 2: and and the court defends the birthright citizenship of.
Speaker 1: Eighteen ninety eight right eighteen ninety eight.
Speaker 2: And in this case there's a descent that really speaks
Speaker 2: to the moment. And what the descent is really about
Speaker 2: is the idea that really Chinese people are not like Americans,
Speaker 2: they are separate race. It is the most racist creed
Speaker 2: that you could imagine. Somebody said to me, well, why
Speaker 2: kim Mark had a descent? So I went and read
Speaker 2: it really closely, and I don't think I've ever seen
Speaker 2: such a vile insult, such a pile of racism that
Speaker 2: even at the time was regarded by the majority as
Speaker 2: too much to stand by. So that's really what we're
Speaker 2: dealing with here, and we've got to call that out.
Speaker 2: This isn't a two sides reasonable disagreement. It is an
Speaker 2: attack on not just any part of the Constitution. The
Speaker 2: thing we fought a war about the idea of equal protection.
Speaker 1: I mean we also thought a war against having a king.
Speaker 1: But with this immunity ruling, which I know you never
Speaker 1: get tired of talking about, man, I mean King George Muster,
Speaker 1: I hope he realized he was working way too hard
Speaker 1: because now with this immunity, we have a king. We
Speaker 1: have a king who's talking about not leaving office. Cory.
Speaker 1: And again we've discussed this on Sirius XM. He could
Speaker 1: strangle AOC with his bare hands and say it was
Speaker 1: part of the job, and there would be people in
Speaker 1: Congress who would defend him.
Speaker 2: Second Circuit Judge Judge Chen asked his lawyer, basically, are
Speaker 2: you saying in defending presidential immunity this was a case
Speaker 2: about when he was a former president that he could
Speaker 2: essentially shoot someone on the street and get away with it.
Speaker 2: And the lawyer basically had to admit, Yeah, that is
Speaker 2: what I'm saying. And that's the worry here that you know, especially,
Speaker 2: I don't think there's any disagreement that Trump has immunity
Speaker 2: as president, and the disincentive that that creates to follow
Speaker 2: the law, the incentive it creates to law break, to
Speaker 2: go along with his what his corruption, his desire for
Speaker 2: absolute power is frightening. I have to bring up Patrick Henry,
Speaker 2: you know, I bring him up all the time, but
Speaker 2: we haven't brought him up for this audience because it
Speaker 2: speaks to the moment and how the immunity decision fits
Speaker 2: into all of this. He says that the founding, this
Speaker 2: is the person who's famous for saying, give me liberty,
Speaker 2: give me death. But he also less famously made a
Speaker 2: really dire warning at the founding. He said, do not
Speaker 2: ratify this constitution. That what we've got here is a
Speaker 2: presidency that is so powerful it assumes George Washington a
Speaker 2: person of virtue in office. And then he asked, what
Speaker 2: if you get a bad person? What if you get
Speaker 2: a criminal president, what's going to stop him? Impeachment's not
Speaker 2: going to work. He predicted essentially that there wasn't going
Speaker 2: to be the mechanism of prosecution, that there would be immunity,
Speaker 2: and he said such a person would be above the
Speaker 2: loss so much so, and now this is the frightening
Speaker 2: part that they wouldn't hesitate to make one bold push
Speaker 2: for the American throne. And that's what I worry that
Speaker 2: we're facing right now. That's why we're doing this podcast.
Speaker 2: And when you combine it with there are more than
Speaker 2: forty cases going on now in the federal courts that
Speaker 2: are being challenged of obviously unconstitutional executive orders, and some
Speaker 2: of them, when you combine them with this immunity decision
Speaker 2: and the birthright citizenship, are all about consolidating power in
Speaker 2: a way that really would make Patrick Henry's warning come true.
Speaker 2: That's why it's such a dangerous moment.
Speaker 1: You're listening to the Oath in the Office with Professor
Speaker 1: Corey Breschneider and John feel saying we'll be right back
Speaker 1: after this. We are back. This is the Oath in
Speaker 1: the Office. From everything you've said, Nixon, if he'd known,
Speaker 1: didn't have to resign, and Ford never had to parton
Speaker 1: Nixon because Nixon's crimes weren't crimes. It's amazing, Corey, in
Speaker 1: fifty years we've gone from I am not a crook
Speaker 1: to a crook is not a crook?
Speaker 2: That's America. I should say. I'm going to say why
Speaker 2: in many ways. What we're facing now is Nixon's revenge.
Speaker 2: But at the time he was ordered to US versus
Speaker 2: Nixon eight to zero. He was ordered to hand over
Speaker 2: the tapes that had been subpoenaed, and he did it.
Speaker 2: Ford's pardon of Nixon essentially admits that, yes, former presidents
Speaker 2: can be prosecuted. Nixon's Department of Justice did, really, I think,
Speaker 2: in many ways make prominent the idea of immunity for
Speaker 2: a sitting president, but they didn't have the gall to
Speaker 2: argue that a former president couldn't be prosecuted. But then again,
Speaker 2: Nixon did say in the interview with Frost, and this
Speaker 2: is where I think it all comes from, that when
Speaker 2: a president does it, it's not illegal. That was a
Speaker 2: thought out idea. He thought that America was in a
Speaker 2: civil war and that the president has emergency powers, and
Speaker 2: that meant the ability to commit crimes. And the crimes
Speaker 2: of Nixon were so hidden by the pardon. They're so vast.
Speaker 2: They include, for instance, his ordering on a thievery basis.
Speaker 2: He's told by he believes that there are tapes in
Speaker 2: the Brookings Institution documents. I should say that reveal that
Speaker 2: he had a secret dealing with the Vietcong in which
Speaker 2: he encouraged them to postpone the war until they could
Speaker 2: get a better deal from him. Essentially treason, and he
Speaker 2: knew he thought these documents were hidden in the Brookings Institution.
Speaker 2: And when Henry Kissinger says, well, if they have those,
Speaker 2: we should get them through court, he says, no, Henry,
Speaker 2: and everyone can listen to this on the tape. I
Speaker 2: want that done on a thievery basis. So he was
Speaker 2: a criminal president, but not even he went as far
Speaker 2: as Trump. And what we're facing now is somebody who
Speaker 2: believes that Nixon didn't go far enough that if you
Speaker 2: would have just pushed back, if you would have stuck
Speaker 2: to that idea that when the president does it, it's
Speaker 2: not illegal, he could have gone even further. And that's
Speaker 2: why we are in the well, let's call it what
Speaker 2: it is, the self coup auto coup.
Speaker 1: That woom, You've got us feeling nostalgic for Nixon.
Speaker 2: Cory.
Speaker 1: That's what we've come to. Donald Trump is like a
Speaker 1: less honest, less legal, less healthy, less attractive, less moral Nixon.
Speaker 1: Let me ask you about the National Labor Relations Board case,
Speaker 1: because this one is not getting as much hype because
Speaker 1: they flooded the zone. This is the gish gallop. This
Speaker 1: is what the gas lighting is. There's you know, I
Speaker 1: call it what the fuck fatigue, professor. It's this non
Speaker 1: stop fire hose of what the fuck's designed to burn
Speaker 1: out our outrage systems and just be overwhelmed. So the
Speaker 1: National Labor Relations Board, I thought their board members had
Speaker 1: legal protection against being randomly fired. Is this another example
Speaker 1: of them saying, screw the law, let them sue us,
Speaker 1: and let's see how my ringers on the court find.
Speaker 2: I'm so glad we're talking about this because this is
Speaker 2: one of those wonky cases that if you don't understand it,
Speaker 2: you're going to miss what's happening, and so it's worth
Speaker 2: going deep on it. This is a case in which
Speaker 2: member of the NLRB was fired, even though there's a
Speaker 2: requirement that that can't be done unless you could show
Speaker 2: that there was malfeasans or that there was good cause
Speaker 2: for the firing. It's a protection, in other words, against
Speaker 2: solely political firing. And yet Trump did it anyway, Now,
Speaker 2: why would he do that in this case. It's certainly
Speaker 2: that he's challenging the law, but it's that he thinks
Speaker 2: that he might have the votes on the Supreme Court
Speaker 2: to really bring back political firing, not just in this case,
Speaker 2: but the real question is whether or not the move
Speaker 2: towards Schedule F, the reclassification of federal employees to get
Speaker 2: rid of the civil service protection they have against political firing,
Speaker 2: a protection that goes back to the Pendleton Act of
Speaker 2: the nineteenth century, the success and getting rid of the
Speaker 2: spoils system. What he wants is complete control. He wants
Speaker 2: loyalty these civil servants, the head of the NLRB. They're
Speaker 2: independent and protected from political firing because in our system
Speaker 2: there are laws and they are charged with carrying those
Speaker 2: laws out. And Trump is trying to undermine that by
Speaker 2: gaining total control, demanding total loyalty, and that means the
Speaker 2: ability to hire and fire at will. Now here's the kicker.
Speaker 2: It's not just here that he wants to do it.
Speaker 2: It's that he might succeed because there's a long standing
Speaker 2: theory known as the unitary executive and extended in full,
Speaker 2: it would mean complete control of the executive branch over
Speaker 2: hiring and firing. I don't know if Elon musk knew
Speaker 2: he was talking about it today From the Oval office.
Speaker 2: But when he said, look, you win an election, democracy
Speaker 2: means you can do whatever he wants. That is an
Speaker 2: idea that the Supreme Court might affirm. And just to
Speaker 2: be clear, that isn't American democracy. American democracy involves laws
Speaker 2: that no one is above and that civil servants are
Speaker 2: obligated to carry out. And Trump wants to reverse that
Speaker 2: with a very undemocratic idea, one of dictatorship in which
Speaker 2: he can decide what everyone should do, and that includes
Speaker 2: choosing loyalty over the law.
Speaker 1: We just heard the federal judge over the last weekend
Speaker 1: who temporarily restricted Elon Musk's in cells from the Treasury
Speaker 1: Department's payment and data systems, saying there's a risk of
Speaker 1: irreparable harm. We don't know if they're complying with that,
Speaker 1: but this was Judge Paul Englemeyer. He put out this
Speaker 1: emergency order and saying that Trump's whole new policy of
Speaker 1: letting political appointees or special government employees have access to
Speaker 1: these systems heightens the risk of leaks and the systems
Speaker 1: are more vulnerable to hacking. So the outcry against this
Speaker 1: judge has been astonishing. Congressman Eli Crane has now said,
Speaker 1: I'm drafting articles of impeachment for US District Judge Paul Englemeyer.
Speaker 1: Partisan judges abusing their positions is a threat to democracy.
Speaker 1: The left has done a reparable harm to this country.
Speaker 1: Trump at the team at Doze, you're trying to fix it.
Speaker 1: This is obviously judicial overreach. Judge Englmeyer is attempting to
Speaker 1: stop White House employees from accessing the very systems they oversee.
Speaker 1: I don't know if these nineteen year olds named big
Speaker 1: Balls are official White House employees Corey, but the judge,
Speaker 1: I think most conservatives would agree that it's a time
Speaker 1: for some caution. It's not just we have to point
Speaker 1: out the entire Republican Party is lawless now, anti constitution,
Speaker 1: anti guardrails, anti rule of law. I guess when we've
Speaker 1: seen these guys celebrate cops being beaten on the Capitol
Speaker 1: steps for a lie, and then releasing the men who
Speaker 1: attacked the cops, and then hunting the FBI agents who
Speaker 1: prosecuted these terrorists who attacked the cops, we really shouldn't
Speaker 1: be surprised that they're trying to get judges fired for
Speaker 1: protecting Americans paychecks and Social Security payments.
Speaker 2: Yeah, this is such an important issue that there is
Speaker 2: a process of impeachment and removal of federal judges. You
Speaker 2: have to show a high crime and misdemeanor and requires
Speaker 2: a majority of the House and two thirds to remove
Speaker 2: in the Senate. And that's supposed to be for serious
Speaker 2: malfeasans for undermining the core tenants of democracy, for instance,
Speaker 2: or for crime crimes. But what's going on here, and
Speaker 2: it ties into the last point, is that any judge
Speaker 2: who doesn't go along with the agenda of stealing the
Speaker 2: power of the purse of extending the unitary executive, I
Speaker 2: should say too, in the unitary executive case, there are
Speaker 2: precedents that prohibit that, that protect the Pendulton Act, a
Speaker 2: case called Humphrey's Executor. And what they want these judges
Speaker 2: to do is to overturn those cases. Now, what if
Speaker 2: they don't do it. They're aware certainly that in the
Speaker 2: birthright citizenship case, in these cases that we're talking about
Speaker 2: about spending, that the judges might try to stop them.
Speaker 2: While they need this threat, we'll just get rid of them.
Speaker 2: We'll use what looks like legal process to really upend
Speaker 2: the entire judiciary. And the message is being sent, Yeah,
Speaker 2: we're asking you to upend the law, to re do
Speaker 2: the checks and balances that we learned about in the
Speaker 2: form of a dictatorship. And if you don't go along
Speaker 2: with it, we've got a mechanism to stop you. We're
Speaker 2: going to fire you. And that's what Musk and company
Speaker 2: are pushing. None of this is virtue in the sense
Speaker 2: of following the law or the text. It's all about
Speaker 2: power and they might win.
Speaker 1: Yeah, okay, so this is our first episode, and it's
Speaker 1: okay if what you've heard so far makes you want
Speaker 1: to draw a warm bath, open up your veins, hop
Speaker 1: on a Leonard Cohen song and jump in the tub.
Speaker 1: But there is so much cause for hope. Corey. I'm
Speaker 1: going to point now where I've had it with people
Speaker 1: who are despairing this early in the game. I've said
Speaker 1: almost every night on Sirius XM. This is a fifteen
Speaker 1: round fight of Rocky versus Apollo Creed and we're still
Speaker 1: only in the first minute of round one. I think
Speaker 1: despare is privileged. But going forward, let me ask you,
Speaker 1: I mean, what can people do? We're facing these threats
Speaker 1: to democracy from this reality show racist clown, and you know,
Speaker 1: we only have so much power. People are calling Congress
Speaker 1: and being very mad morning Democrats to do more. They're
Speaker 1: praying the judicial branch saves us all. But I appreciate
Speaker 1: anybody who feels helpless right now. You talk about this,
Speaker 1: professor in your most recent book, The Presidents of the People,
Speaker 1: But what can ordinary citizens do about this?
Speaker 2: Wow? John, what a great place to end, because this
Speaker 2: is I think the main reason to do the podcast,
Speaker 2: to not give into despair and to see the hope.
Speaker 2: And I think the fundamental lesson that we've seen again
Speaker 2: and again of American history is that there is a
Speaker 2: danger of the presidency and that Patrick Henry was right.
Speaker 2: It is powerful, and we have seen presidents who have
Speaker 2: threatened democracy. This isn't the first time we had John
Speaker 2: Adams use the Sedition Act to prosecute over one hundred
Speaker 2: and twenty of his opponents. And the Sedition Act, just
Speaker 2: to be clear of how bad it was, was written
Speaker 2: in a way that made it a crime to criticize
Speaker 2: the president of the United States, but it didn't make
Speaker 2: it a crime to criticize the vice president, a member
Speaker 2: of the opposition party, Thomas Jefferson. And this law was
Speaker 2: used to prosecute again and again, those who criticize the president.
Speaker 2: He had an idea of the constitution that was not democratic.
Speaker 2: John Adams out of the president as a kind of monarch,
Speaker 2: and their right to free speech, even though it had
Speaker 2: been enacted in the First Amendment, didn't mean the right
Speaker 2: to criticize him. And what about the courts, And just
Speaker 2: to see the parallel, why did the Supreme Court not
Speaker 2: come and say, hey, we have a First Amendment, you
Speaker 2: can't do that John Adams. It's because the courts were
Speaker 2: in bed with John Adams. In fact, Samuel Chase, one
Speaker 2: of the most prominent Supreme Court justices of the time,
Speaker 2: lobbied for this Sedition Act and the shutdown of the
Speaker 2: opposition party, went and sat on the trial of each
Speaker 2: of these sorry let me say that again, went and
Speaker 2: sat on the trial of Thomas Cooper, one of the
Speaker 2: editors who criticized Adams. So the courts weren't going to
Speaker 2: save us. There wasn't going to be impeachment because the
Speaker 2: president's party was in Congress as well. So what happened?
Speaker 2: How did we survive that moment and actually get the
Speaker 2: American democracy that we have where we're able to do
Speaker 2: what you and I are doing criticize the president, at
Speaker 2: least for now without going to prison. These editors heroically
Speaker 2: fought back. They used their own trials to put John
Speaker 2: Adams on trial to say that there is a rule
Speaker 2: of law that stands above everyone, even this president. And
Speaker 2: then they use politics. They used the election of eighteen
Speaker 2: hundred to make it a referendum on democracy. And when
Speaker 2: Adams was tossed out and Jefferson came in and he
Speaker 2: uttered the words, we are all federalists, we are all Republicans,
Speaker 2: he was saying, I'm not going to have a sedition Act.
Speaker 2: It was a recovery of the idea not just a
Speaker 2: free speech, but of the right to dissent. So these stories,
Speaker 2: and we'll talk about more of them, the really heroic
Speaker 2: activity and speeches of Frederick Douglas who pushed back against
Speaker 2: the dred Scock case and Buchanan, people like William Monroe Trotter,
Speaker 2: and others like Sadie Alexander who pushed back in the
Speaker 2: twentieth century against the segregation initiated by Woodrow Wilson. These
Speaker 2: people didn't just fight back, They figured out a way
Speaker 2: to win by turning their descent into a political movement
Speaker 2: that recaptured American democracy. And really, that's my hope of
Speaker 2: what we're doing at this moment, not only to not
Speaker 2: give into despair, not only to call out what's happening,
Speaker 2: not only to fight back, but to use these moments
Speaker 2: to try to galvanize the American people into recovering our democracy.
Speaker 2: I love it.
Speaker 1: This is why you are the anti Alina Habba, and
Speaker 1: I thank you very much for that, professor. I'm thrilled
Speaker 1: to do this show with you. I'm excited to learn,
Speaker 1: and you know, I think information and knowledge is one
Speaker 1: of the antidotes for despair at a time like this.
Speaker 1: I am a firm believer that the only thing that's
Speaker 1: going to beat these fascists is nonviolence, humor and ridicule,
Speaker 1: and a very informed populace of informed voters and consumers.
Speaker 1: And so I'm really really happy to take this journey
Speaker 1: with you. I want to tell everybody this would be
Speaker 1: a really good time for y'all to subscribe and rate
Speaker 1: us and review us on Apple podcasts. If you want
Speaker 1: to give Corey five stars but give me none, you
Speaker 1: can split it and give it four. Maybe you know
Speaker 1: do that, But let's let's get some reviews and Coreo
Speaker 1: as we go by in the weeks to come, I'm
Speaker 1: really looking forward to taking the most outrageously confusing acts
Speaker 1: of malfeasance and legal fuckery these guys try, and breaking
Speaker 1: down the history, breaking down the Constitution. I find it
Speaker 1: really really comforting to know definitively how wrong they are.
Speaker 1: I mean, do you have hope that historians of the
Speaker 1: future are not going to be swayed by Donald Trump's nonsense?
Speaker 1: And you know, I think dumb people of the future
Speaker 1: aren't going to remember Donald Trump. They're not going to
Speaker 1: know and the historians will know everything and won't be
Speaker 1: swayed by ads and won't be swayed by racism for migrants.
Speaker 1: In the long run, I think America will survive this.
Speaker 1: A lot of people will be hurt in the meantime,
Speaker 1: but these guys aren't going to win long term.
Speaker 2: The history books.
Speaker 1: I don't see any way they come off as the
Speaker 1: good guys. One hundred years from now.
Speaker 2: Absolutely, I think that, you know, the judgment of history
Speaker 2: is going to show that Donald Trump was seriously on
Speaker 2: the wrong side, opposing basic ideas of democracy and freedom.
Speaker 2: And that's why I'm so honored to be in this series.
Speaker 2: Of conversations with you, John, to bring it as wide
Speaker 2: an audience as we can, to really make us aware
Speaker 2: of what this threat to democracy is, to not get
Speaker 2: fooled by the different techniques and arguments that they're going
Speaker 2: to use to try to pretend that they're defending freedom
Speaker 2: or defending democracy. We're going to call it out, we're
Speaker 2: going to explain it, and we're going to have fun
Speaker 2: along the way, because I think the joy and the
Speaker 2: humor and all of that is part of what it
Speaker 2: means to oppose. I want to be tyranny and we'll
Speaker 2: do that together. And so thanks for doing this. It's
Speaker 2: such a pleasure to be in conversation. And as John says,
Speaker 2: please subscribe to the Oath in the Office and post
Speaker 2: some reviews.
Speaker 1: Yes, and I want to thank you. I want to
Speaker 1: thank everybody who put this together, and most of all,
Speaker 1: I want to thank my parole officer for telling me
Speaker 1: this would be a very good idea for my eventual clearance. Guys,
Speaker 1: it's a real joy. The show is once again the
Speaker 1: Oath in the Office. Thank you guys for listening to us.
Speaker 1: We'll be back next time. Be sure to subscribe for
Speaker 1: Professor Kurey Bret Schneider. I'm John Thiegele Sang Sang Peace.
Speaker 1: We'll see you next week.
Speaker 2: M