Speaker 1: Welcome to The Oath and the Office podcast. I am
John Fuegel Sang. It is a pleasure to have you
with us, and it's a pleasure to welcome the star
of our broadcast, the author of the Oath in the Office,
the Ivy League, professor who you've read in the New
York Times, CNN, Time Magazine, the author of the presidents
and the people as well, people of Earth. Let's make
some noise for Professor Corey Bretschneider.
Speaker 2: Hello, sir, hi John, And what a week we have.
Speaker 3: The cryptocurrency scheme, the theft really that we have going
on from the President, the question of how we would
ever hold him to account given the grand theft that
we're seeing, the question of transgender rights in the Supreme Court.
It's going to be an amazing show, one that delves
into the crisis of democracy, but also that offers hope, as.
Speaker 2: We do every week. You haven't subscribed yet, push that
subscribe button.
Speaker 1: Yes, And I want to praise you for as well, Corey,
for the crazy ratings this podcast is getting. It's it's
way too popular, and we need to talk about how
this is going to your head. Professor. I think I
respect your standing as an Ivy League constitutional scholar. The
bling's a bit much, but this is not the place
to discuss the blink.
Speaker 3: We'll talk about I'm getting used to the paparazzi, you know,
and I'm dealing with it. Well, I haven't yelled at
too many of them are throwing fits.
Speaker 2: I really try to welcome them.
Speaker 1: Yeah, good, good, Try to not throw too many phones
at assistance Scory and I want this to go to
your head, but I want to I want to talk
about one of the topics that you just raised, Professor,
because Donald Trump has finally, I think, found the perfect
business model for him, selling the American dream as a
pump and dump scheme. You'll recall, during the campaign of
twenty twenty four, Donald Trump repeatedly promoted his Trump meme
coin on social media, kept encouraging supporters to purchase it. Now,
for those who don't know, a meme coin is the
only product where the disclaimer pretty much says this is
not an investment, and a lot of guys here, oh,
this could be my retirement plan. Because the entire ecosystem
runs on four emotions fear of missing out, greed, denial,
and the belief that you'll be smart enough to sell
before everyone else, so Professor. This week's headlines told us
Trump's twenty twenty five financial disclosure reported at least two
point two billion in business income, with cryptocurrency being one
of his biggest sources of revenue in his life. Now,
the coin Trump's meme coin, like Trump's hair, like Trump's
digestive system, has now collapsed. After peaking above seventy five bucks,
the meme coin was trading around a dollar seventy six
by the end of the reporting period. That's a decline
of about ninety seven percent, and according to analytics from
Nansen Corey, almost one million people who bought the Trump
meme coin their wallets were underwater by the end of June.
About two of every three buyers lost money. Those investors
lost a combined are you sitting down three point eighty
one billion dollars while Donald Trump himself as an individual
walked away with six hundred and thirty six million as
a payout from the same venture where one million fans
lost three billion dollars. Corey, I'm sorry it takes so
long to set this up, but the framers worried so
much about corruption, which constitutional provisions do you think were
designed to prevent presidents from enriching themselves while in office
like this. I know about the emoluments clause, but these
guys were really trying to plan to prevent this from happening.
Speaker 3: I'm eager to get to the constitutional history. And yes,
the framers worried about this. They thought they had a
response to the anti federalists who worried that the presidency
would become a source of criminality.
Speaker 2: And things like this. The anti federalists.
Speaker 3: Predicted, these are the people who oppose ratification would happen
all the time. And Founders put two clauses into the
Constitution to combatant the emoluments clauses.
Speaker 2: They thought it was so important.
Speaker 3: They put two in actually, one prohibiting domestic emoluments, one
prohibiting international emoluments. And of course this story and all
the elements of it have a domestic element, the people
who are victimized domestically by this scam coin, and also
the international investments that the president is getting in these
crypto companies, which obviously, to my mind, violate the international
emolument's clause.
Speaker 2: And again I thought this was such a big deal.
Speaker 3: They put it in there twice before I get to
the complications of criminality and could he be prosecuted? The
question I want to address, which it turns out to be,
unfortunately a complicated one.
Speaker 2: It shouldn't be, but it is.
Speaker 3: I just want to say something about this kind of
crime because I think it's so relevant to our politics
right now. So often people say to us, you know
you're doing this show about protecting democracy, What about inflation?
Speaker 2: What about pocketbook issues?
Speaker 3: And of course both of those matter, And the key
I think for those running in this congressional election, if
candidates are listening, I know a lot of staff are listening,
and people who are voters and concerned about this are listening.
Speaker 2: The key is to see how they fit together.
Speaker 3: And john your comment about pump and dump really captures it,
because this kind of corruption is not victimless.
Speaker 2: It's yes, Trump in using the office to.
Speaker 3: Enrich himself, that's the definition of an emolument, and doing
it at the expense of ordinary people. And so much
of the corruption has a financial cause. So it really
is one idea, worrying about pocketbook issues and worrying about corruption.
Speaker 2: All right, onto the big question.
Speaker 1: Oh sorry, Johnny, I just want to answer one thing
when you use the phrase corruption. Now, of course we're
not saying that this entire scheme is a crime. Crypto
is legal and it is regulated, give or take. The
corruption comes in the chief executive enriching himself off the office.
That is what that is where this becomes legal. And
as I've pointed out to you many times, Professor, under
the emolument's clause, Donald Trump could have been impeached during
the first minute of his first inaugural address in twenty seventeen.
But go on, get to the big stuff.
Speaker 3: Yeah, so let's get into it. I mean, look, here's
the unfortunate thing. As I talked to people who are prosecutors.
For instance, we had Joyce Vance on the show last week.
If you haven't listened to that episode, listened to it.
We were actually right after that on MS NOW together
talking about this issue and what she pointed out. And
remember this is a seasoned prosecutor. She was US attorney
in Alabama based in Birmingham, as you heard her talk about,
and her view is it's complicated that if she was
going to try to bring this case under the existing laws,
that it would be a hard thing to do.
Speaker 2: She didn't say it was impossible. It might be possible.
Speaker 3: There are anti corruption statutes, but the bottom line is
they are.
Speaker 2: Way too weak. How should this be a hard question.
Speaker 3: It's obviously the president using the office to enrich himself
that violates the me of the emoluments clauses, both of them.
So my view about this is if it's a hard
legal case, instead of just going back and forth, the
obvious thing that we need to be doing talking about
the next election is supporting a bill to make it
clearly criminal to use the office in a cryptos scheme
or any of these others in order to enrich yourself.
And it has to clarify that bill that there's no
presidential immunity because of course this isn't an official duty.
If you're engaged in emoluments, it's almost the definition in
monuments violations, it's almost the definition of private So that's
what I think we really need to focus on. That
there are these two emoluments clauses, but as is so
often the case, we don't have the ordinary There's constitutional
law and then there's ordinary law passed by Congress.
Speaker 2: We need ordinary law to make it clear that this
is a crime.
Speaker 1: So, in other words, you're going to make me talk
a like a Republican when they talk about hate crimes legislation.
There's already laws on the books, mister. Why do we
need more laws if there's already laws on the books.
Speaker 3: But you're the bottom line is you know when yes,
Van says, you know or it's not just her, of course,
it's other prosecutors.
Speaker 2: Prosecutors have to look at the laws on the books.
They tend to be weak.
Speaker 3: There is no specific emoluments violation that is criminalized. Again,
it's in the Constitution, but the law that would penalize
that as part of criminal law just isn't there. So
they have to look, you know, for other more general
kinds of corruption. And as you say, it's not illegal
to be engaged in cryptocurrency, it's illegal is to use
the office. And you would think common sense would say, well,
of course that's illegal.
Speaker 2: Of course we pass those laws. We haven't.
Speaker 3: That's what I'm trying to say to our listeners. And
it's so desperate that we do it. The House Judiciary Committee,
Jamie Raskin, i believe, is one of the sponsors. There
is a bill to criminalize emoluments. It hasn't been brought
out onto the floor. And you know, one thing that
we need to do is force We're not going to
get a full vote on the floor, but we could.
There are maneuvers in order to force a vote on
whether or not to bring it to the floor.
Speaker 2: And if Republicans want to vote.
Speaker 3: Against it, I believe some would vote for it, then
let them do that. Let them vote for corruption, vote
for ability of a president to use his supposed immunity
in order to you know, make people poor while he will.
Speaker 1: They will, and they'll call it freedom, and they'll call
it free speech. And they'll have a Supreme Court that
says that bribery is totally legal. You know, you got
me thinking, Professor, the Constitution. They anticipated foreign influence right
on our politicians big time. They did not anticipate cryptocurrency.
Does crypto expose weaknesses in our existing ethics framework? Because like,
this is the only casino where the House doesn't even
pretend you might win. This guy owns the chips, and
he owns the table, and he owns the slot machines.
I mean, you know, and then they'll sell you a
commemorative coin that says this is not a gabler device.
While you're losing your mortgage. I mean, it seems like
the founding Fathers had some holes in the system, and
crypto exploits it.
Speaker 2: Well, I don't want to let them off the hook.
Speaker 3: I think it's worse than that they didn't anticipate crypto,
because of course, when you're writing any legislation or you're
writing a constitution, you can't predict the technology.
Speaker 2: They couldn't predict the Internet. They couldn't.
Speaker 3: But yet there are crimes that were on the books
dating back to the eighteenth century that you could violate
on the Internet. If you use it in a murder conspiracy,
you know that there's not a hard problem there.
Speaker 2: The problem is that what they didn't do, and it goes.
Speaker 3: Beyond not anticipating crypto specifically, is they didn't pass laws
we haven't as a nation that criminalized the conduct of
doing things that would otherwise be illegal when you're abusing
the office, or at least they didn't do it in
the clean, clear way that this Emolument's Bill would do.
So that's why we've got to fill.
Speaker 2: In their gap.
Speaker 3: It's not that they weren't aware of the issue, and
so I have something to say about why we haven't
passed it, so that they put it into the constitution.
They're responding to the anti federalists who are like you know,
by the way, the anti federalists, the people who opposed
the constitution, people like Patrick Henry. They thought that the
criminality of this kind of a present and basically self
serving using the office for personal illegal gain was so
serious it would destroy democracy. He said, the president would
start with these kind of crimes, a bad president, a
criminal president, not a good one, and then eventually they
would destroy the republic, it would see in a kind
of putinesque way. That's what they predicted, that their criminality
was unchecked, and so why not go for it. This
is what Patrick Henry said, the American throne, that's the
language that he used, and he was saying, this thing
is dangerous, do not ratify. So what was the response
of those who defended the Constitution.
Speaker 2: Well, we put it in there twice.
Speaker 3: And I think this is what's so unfortunate that the
Framers and so much of our government rests on the
idea of a president basically being a good person, and
so he didn't recognize the threat.
Speaker 2: And yes, that's naive.
Speaker 3: It's been a huge mistake even after Nixon, Well what
about Nixon? People said, well, it was suey generous. It
was just one time.
Speaker 2: Even jd. Vance said the crimes of water Gate weren't
a big deal.
Speaker 1: They would oh what a shock. Yeah, boy at the
Nixon library too. But you know this is the thing, right, Like,
aren't we all a danger of becoming numb to conflicts
of interest because they're now so constant. I mean, what
is a little bribery matter if it's bribery twenty four
to seven, What is a little president profiting off the
office matter? When he's doing it every single day? I mean, like,
is there a constitutional danger if the American people just
decide that self dealing is inevitable and we shouldn't expect more.
Speaker 2: Yeah.
Speaker 3: I mean it's an amazing question, and it's one that
we've been focused on, and you know, my answer is
an unpleasant one, which is that we are becoming used
to it.
Speaker 2: We have seen it.
Speaker 3: There is a sort of sense among some of the
American public, partly because Trump's enablers have spread this that
everybody does stuff like this. This is just what billionaires do,
and it's just other billionaires. Maybe that he's you know,
winning against a negotiation. And what we failed to see
is that this is.
Speaker 2: Not a democrat.
Speaker 3: When a president is able to use the most powerful office,
not just in the country but in the world.
Speaker 2: To enrich himself.
Speaker 3: I'm going to just say something just to dramatize it,
but I think it's completely accurate. The president we know
admires Vladimir Putin, Well, what is Putin's government? It's an autocracy,
a dictatorship, but also one that is used to enrich himself.
He has no problem collaborating with the oligarchs in order
to siphon all the resources of Russia into his pockets.
Speaker 2: And the President of.
Speaker 3: The United States, and I believe his family as well,
see that, and they think that's our business model. We
can also become the richest people in the world. Let's
talk about the amounts of money. Hundreds of millions, billions
of dollars.
Speaker 1: Do you want America to fall behind, professor? Do you
want America to fall behind in billionaires who don't care
about the working class? Because China will be ahead of
us if we don't create more billionaires who don't care
about the world. I mean, this is the genius of
the Griff Corey, a normal scammer disappears after to making
your money.
Speaker 2: Trump just stays.
Speaker 1: There like he's just there, like these these Maga friends
spent all these years telling us that Trump is playing
four D chess. Turns out they were the pawns they're
paying for the chess board. I just got to ask
you one last question on this before I get physically ill.
Does history suggest, Corey, that constitutional guardrails will eventually strengthen
after periods of sustained corruption or have we never seen
a period of corruption like this.
Speaker 3: I want to answer that, but first I'm going to
just make a comment on your last comment, which is
that the president isn't a race, and it's not a
race on behalf of the American public. It's in the
race with another autocrat, Vladimir Putin, to see who can
be the richest person in the world. And so far
Putin is way ahead. I don't mean there's any doubt
about that. But Trump is catching up. And you know,
by the way, the money that we're talking about that
was reported in the New York Times. The journalism that
we're using here is reported gains, and there are, of
course all sorts of unreported gains. One This is not
saying we have the evidence yet, but one suspicious thing
is the trading account that keeps shorting oil perfectly as
the president announces, for instance, to cease fire and it's
time to you know, for oil to go down, and
whoever's placing that bet to just make a fortune. And
these are not small amounts of money. And my understanding
is it's continually the same account is that the president
is one of his family. Well, all these schemes that
we don't know about add to the well the closeness
that he's getting to putin on the question of hope,
which I appreciate because we're always trying to do both. Absolutely,
the way that we get the kind of laws that
I'm talking about come from moments of crisis. And that's
what I've written about extensively that in these dark periods, Yes,
there is a threat that we won't recover. Democracy is fragile.
But if we are able to galvanize support by saying
no kings, no, no using the office to enrich yourself
as a reaction, we might get the laws on the
books that we need.
Speaker 2: But you know, we didn't do it during Biden.
Speaker 3: We need some Moluments clause to have teeth, and that
means that the next president of the United States, whoever
it is, hopefully.
Speaker 2: Not Donald Trump or not JD.
Speaker 3: Vance, will have the wherewithal the virtue in the sense
of the Framers method that they would abide by the
oath to signs, but they will do it under pressure.
Speaker 1: Yeah, yeah, good for you for getting the words Jdvans
and virtue in the same sentence. Story. Someone's drinking game
just got made really special. You know what this is
so depressing. Let's let's let's talk about cash. Buttell no
I like, I got to tell you something. This ongoing
obsession with this individual president of somehow getting many individuals
to go with his lie that he on the state
of Georgia in twenty twenty, it's still going on. The
FBI is sending hundreds of analysts to dig into the
Georgia twenty twenty election probe. It's been a priority investigation
for what happened six years ago because Donald Trump lost
and he needs to change history. Just like they're scraping
the achievements of African Americans off of the Pentagon website,
just like they're getting our historical national parks and landmarks
to remove unpleasant realities about slavery and ethnic cleansing of
Indigenous people. These guys want to erase history. They want
to erase the reality the Trump really lost. So the
FBI is assigning hundreds of analysts to reinvestigate a six
year old law. At this place, they will solve the
assassination of Jimmy Hoffa by labor day. And they're working weekends,
they're working holidays. Somewhere, Corey, like an unsolved bank robbery,
is saying, hey, whatever, you guys got a minute. But like,
if this many people investigated climate change or cancer or
all Alzheimer's, think about all the Nobel prizes Donald Trump
could have. Like, from a constitutional perspective, how unusual is
it that the executive branch is making the FBI reopen
investigations connected to past elections?
Speaker 2: Wow? I mean, just to begin with and to state something.
Speaker 3: That I believe all of our viewers know, there really
is no evidence at all of the kind of election
fraud that Donald Trump is alleging. And there was case
after case in which they tried to show this kind
of fraud and they were totally unsuccessful. There was no
court in the United states that found that there was
election fraud on a level anywhere close to affect the election.
So now he's saying to the FBI something, and I
just want to recall one detail because it's a perfect
illustration of what's.
Speaker 2: Going on now. Of course, he called the Secretary of
State of Georgia demanding that he find the exact number
of votestes to win Georgia. What's the number? Jo? Wow? Amazing.
So now Trump is doing the exact same thing.
Speaker 3: The reporting shows that he is ordering the FBI to
go and find fraud that isn't there.
Speaker 2: Well, for what purpose? To vindicate his lie and to
you know, not.
Speaker 1: Just to vindicate his fragile, unmanly ego, sir.
Speaker 3: Yes, and to rewrite history. I mean, I didn't want
to love at that point either.
Speaker 2: I mean, it really isn't just about this specific thing.
It's about all of it, about.
Speaker 1: Turning streaming screaming toddler. Give the screaming toddler the iPad
so he'll shut up, right, And that's you know.
Speaker 3: I'll talk about this more at a future date. But
I was at an amazing event with a lot of
very high level former Department of Justice officials people who
of course were working all the time with the FBI.
And you know, everyone is just flabbergasted because the corruption
that runs throughout this department, throughout the Department of Justice,
throughout the FBI. Now because of the top coming down,
how is it is it even possible to work in
the Department of Justice in the FBI.
Speaker 2: This was one of the discussion topics.
Speaker 1: As long as you don't care about as long as
you don't care about accomplishing anything. But this is why
he hired this child man to run the FBI. He
doesn't want an adult capable of critical thinking. He wants
this obedient, alcoholic child man.
Speaker 2: Party.
Speaker 3: Bro Dude, you've really got to emphasize that point, John,
You're bring up something so important, and this did come
from a lot of the DOJ officials, and it is
a message that again has to be you know, it's
partly legal, it's partly about good governance, but it also
is our politics that we have to be able to
frame the problem here. Isn't just you know, using the
FBI to waste resources on something that doesn't exist. It's
wasting them compared to what I mean, the FBI is
supposed to be doing things like going after sex traffickers,
an issue that the Republican and Democratic.
Speaker 2: Party cares about.
Speaker 3: But how are you going to do that if you
siphon off all the FBI agents. I mean, this is
a massive number of into an investigation for something that
doesn't exist. So, as with the cryptocurrency scheme, this is
not a harmless corrupt action. There is a direct harm
to the people who were suffering from crimes that there
are laws on the books to prevent and that there
is an FBI that's supposed to go after it.
Speaker 1: Yeah. I just want to say at this point, the
twenty twenty election has now outlasted most streaming series. This
thing has had more sequels than the Fast and Furious movies. Corey,
I'm so tired of hearing about this. But president's appoint
FBI directors. Where should the constitutional boundaries be between presidential
control and investigative independence. You've talked so much about how
dangerous it is to weaponize government institutions. I mean, how
would constitutional scholars distinguish between oversight and political retaliation? And
then this, which I think is technically called daffy shit.
Speaker 3: I mean, look within the Department of Justice, the FBI
is a part of it, right, And not just the FBI,
but the entire Department of Justice has been turned into
Trump's personal tool. And what Todd Blanche, the acting Attorney General,
has said, is under this wacky theory of the unitary executive.
By the way the people created this theory, I would
never in a million years have gone this far. They
thought that the Attorney General, of course, was supposed to
be independent. Even defenders of the unitary executive defended Attorney
General Levy, who made it a point to say, you know,
even talking to the president's bad. Remember the conversation on
the tarmac and whether it Rretta Lynch, the President speak
to the Attorney general?
Speaker 1: That terrified horror. How scary that was. Remember how scary
that was. That was like a trans girl wanting to
play soccer.
Speaker 2: That was like, I mean, that was as I can suit.
Speaker 1: All right, we got to take a break, or when
he's gonna yell at us. But I just want to
thank you, professor. This is just they're still treating twenty
twenty like it's a cold case. And the problem is
that case got solved while it was still very warm.
Let's take a quick break and when we come back
some more fallout from the end of the Supreme Court term,
including some potential good news for our friend Egen Carroll.
This is the Oath in the Office. These are difficult
times and if you believe in justice, progress and democracy,
the news you read and listen to can be pretty depressing.
And that's why there's a new podcast called good News
for Lefties and America Get this every day. It features
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for Lefties dot com, or wherever fine podcasts are heard.
Welcome back to the Oath in the Office. I'm John Fiegel,
saying Professor Corey Bretschneier is with us and Professor in
a six' to three. Decision as you, know The Supreme
court rule that states may ban transgender ears and women
from participating in female sports teams at publicly funded. Schools
they're leading restrictions in twenty nine states fully intact this
wasn't a huge. SURPRISE i do want to point out
that WHILE i respect protecting the integrity of girls', sports
Transgender americans are under one percent of the. Population transgender
kids who compete in school sports are a tiny fraction
of under one percent of the Popular you are statistically
more likely to know someone who has been struck by
lightning than know someone who's been directly affected by this.
Issue And corey, like this is still the defining political
battle of our. AGE i, mean housing costs, explode healthcare,
costs childcare cost the cost of, eggs gasoline every. Election it's,
like forget all that we got to Stop becky from
running into four hundred. Meters SO i have so many
questions about. This the liberal justice has agreed The title
nine itself permits sports to be separated by biological. SEX
i think the real disagreement was over equal. Protection can
you explain that distinction for our?
Speaker 3: Listeners, well you, KNOW i unpacked this case because it is,
complicated and it is a lot of it is dependent
on the facts of any given. Case and let me
just say first what the case is about and what
the majority, did and Then i'll talk about the complicated
ways that the liberals on The court have dissented and
disagreed for sensible. Reason so what the majority, did and
it's not going to come to a surprise to anyone
THAT i think this was a really wrongly decided, opinion
is they essentially cut off the protection two protections for
transgender kids who want to claim that they were discriminated
against in sports and let's leave, aside you know what
various kinds of discrimination might have.
Speaker 2: Happened and what.
Speaker 3: They said was that both the Equal Protection, clause which
is in the Fourteenth amendment of The, constitution and the
specific law that was passed to protect gender equality in,
Sports title nine don't apply to transgender. Kids that they
can't use use these laws in order to, say, HEY
i was discriminated. Against and that's before we even get
to the. Facts they're just saying that. Period that's not
what it's.
Speaker 2: About.
Speaker 3: Now what's bad about, that in my, opinion and weird
is That Justice gorsuch had an opinion that The Supreme
court endorsed the majority of The court that said when
the phrase sex discrimination is, used that you.
Speaker 2: Can't discriminate on the basis of.
Speaker 3: Sex for, instance in the nineteen sixty Four Civil Rights
acts protection against job discrimination employment discrimination when it says
you can't discriminate.
Speaker 2: In the employment context on the basis of. Sex remember
this Is Justice gorsage and this Conservative Supreme. Court they, said, look,
yeah that does apply to transgender. People because what is
discrimination against transgender people is, discrimination arbitrary discrimination on the
basis of. Sex your transgender status is a form of
sex based. Discrimination that's their.
Speaker 3: Argument so, Okay so now is it possible that the
discrimination against the transgender kid violates the ban on discrimination
based on? Sex both In title nine, now not the
nineteen sixty Four Civil Rights, act this is protection in
sports past later and under the Equal Protection. Clause now
The court, saying, no absolutely, not it. Doesn't sex doesn't
have anything to do with transgender. Status so you, know
why are they saying? That and it's just a flabbergasting you,
know there's not a good. Answer Justice gorsich tries to
square the. CIRCLE i think most of the justices who
voted this, way Including, kavanaugh didn't agree With.
Speaker 2: Bostock that's the case about. Employment trying to your mind.
Speaker 1: Him there's not a lot of mystery why they're doing
what they're. Doing so what's the.
Speaker 3: Response the response is, subtle and it took a couple of.
Forms the, first the, best to my, mind Was Justice,
jackson who, said, yes both the Equal Protection clause protects
transgender people in some contexts just as it protects against sex.
Discrimination and, also you, know this is her, Descent Justice,
JACKSON i Think Soda mayor on this, point this is
what you're referring.
Speaker 2: To doesn't, agree but she, Says, look the statute says
on the basis of, sex the same as the employment,
Discrimination so of course it's. Protection they're not saying anything.
Speaker 3: About this particular case that involves discrimination against a transgender
person who never hit male puberty and a transgender.
Speaker 2: Woman.
Speaker 3: Right and yet while they're, saying listen to the modesty
of what they're, saying look into the case because and, SORRY.
Speaker 2: I know that they don't want to get.
Speaker 1: It they don't want to do. That go, ahead go.
Speaker 2: AHEAD i just want to get it out last. Yea,
YEAH i know it's a, Lot.
Speaker 1: John, sorry, no, no, no BECAUSE i GOT i gotta talk
to you about.
Speaker 3: This go, ahead because it's a complicated, issue as the court.
Speaker 2: Says but, look.
Speaker 3: Their point is that maybe and we can't know this
without looking into the, situation that it's arbitrary that there is,
no for, instance physical difference between somebody who didn't go
through male puberty and a woman who is not, transgender
and in that instance that this is an arbitrary. Distinction,
SO i, mean here's the point all the liberals are
saying is we need more information and don't cut off
the possibility that this is the kind of discrimination that.
Speaker 2: We saw in the job. Context that was a. Lot
please help me clarify, This, John.
Speaker 1: Okay, so just As Sonya saidomayor argued that the majority
was ignoring the actual facts of this plaintiff's, situation, right
including that she you, know she transitioned before male puberty
and she allegedly lacked any athletic. Advantage, AGAIN i do
want to point out that trans, WOMEN i think are
the only athletes who take drugs to be physically. WEAKER
i think they're the only athletes who take drugs to
be physically. Weaker but it seems the, court to what you,
said is moving away from individualized constitutional analysis because they
just want to have some broad rules about categories. Here
is that fair to?
Speaker 3: SAY i think a way to put it is they
opened the door which justice and the law demand to
the possibility that there is discrimination against transgender people. Period
and in the employment, context they said that pretty, Clearly,
well if there's discrimination, there there might also be in
this other area of women's. Sports you, know the possibility, that,
yes there is arbitrary discrimination going on here against transgender.
People how can we know that without looking at the.
Facts and you, know they're, saying maybe there are facts
in which it's not arbitrary, discrimination but in this case
it might. Be and we're not saying it. Is what
we're saying we need to know.
Speaker 2: More, yeah and what they're.
Speaker 3: Resisting and this is WHY i think it's common. Sense
is the kind of categorical shutting off of the.
Speaker 1: Cab but, again like to, Me i'm, SORRY i don't
really separate this Ideological Supreme court from the comment, Section,
COREY i really. DON'T i know What Brett kavanaugh spent
his time doing Under GEORGE. W. Bush this issue affects
a vanishingly small number of, people right and yet somehow
this issue gets more campaign advertising than, wages, unions prescription,
drugs or affordable housing. Combined right, now that's not an.
Accident that's because culture war issues are politically. Magical you
don't have to build, anything you have to pass any complicated.
Laws you just have to find a. Villain and this
is what politics. Loves you find a group that's small
enough that Most american voters won't actually know one of, them, Right, Jews,
muslims gay, people now it's transgender. Folk step, two you
convince everyone else this, tiny powerless group is the central
existential threat Facing. America and step, three you know your
fundraise off. It you don't have to fix. Healthcare you
just keep people angry about locker. Rooms you don't have
to explain why billionaires keep getting tax breaks and you
can't afford. Rent you just point at the high school track.
Meet make sure everyone's mad at teenagers in another state playing.
Sports this is the greatest magic trick in. Politics and
every election, cycle we know there's always a new existential.
Emergency critical race, theory drag, shows, caravans. Pronouns, right there's
the greatest dangers to the world's richest country is always
some group that can afford a. Lawyer SO i don't
really take any surprise by the fact that these aristocrats
on The Supreme court don't really have their arguments. Straight
they're just going with the tribal, mentality and the tribe
doesn't consider discrimination against Transgender americans to be. Discrimination, well here's.
Speaker 3: The i'm certainly not going to disagree with you About Brett,
kavanaugh WHO i don't really think is a. JUDGE i
think he's a political actor who's just sort of out
of his depth and writing opinions that aren't based in the.
Speaker 1: Laws way too, Polite but, Okay i'll say.
Speaker 3: WHY i think it's a little different with The court
as a whole and with in Particular Justice. Corsage and
here's the thing that makes it not just ordinary. Politics
and you, know of course that's what they're.
Speaker 2: Saying and it's a.
Speaker 3: Case you, know WHEN i was teaching a class about
how to interpret ordinary laws passed By, congress a class
Called legislation And, REGULATION i would teach in depth this
Case bostock about the nineteen sixty four civil rights ban
on sex and a lot of the, students some of
whom were going to work for organizations like lad who
are going to really devote themselves to gay and transgender,
rights really found it hard but also encouraging to read
this decision Because it was one of the moments in
which The Supreme, court led again by a Conservative Justice,
gorsich used the method that they claimed to. Use the
method is look at the words on the page of
the law and enforce. It and the word says don't
discriminate against sex And gorstag says so, plainly transgender discrimination
is sex.
Speaker 2: Discrimination and so it was a moment of the.
Speaker 3: Law so they've already said that the problem is now
they're just taking it back.
Speaker 2: Now.
Speaker 3: WHY i definitely believe that the reason is the political
fallout and. Pressure Justice gorsich got a lot of grief for.
It The court as a whole got a lot of.
Grief the culture war has only gotten more, intense and
now all of a sudden they've given up the. Battle
kavanaugh doesn't surprise, me but The court as a, Whole
gorsuch in, particular what.
Speaker 2: Are you, doing? Man are you just giving up on the.
Law you're not judging if you're caving into the cultural?
Speaker 1: War, YEAH i think culture war is the fuel this
movement runs, On. Professor but you, know you keep on
hoping For, gorsich you keep, on you keep on, Hoping
and congratulations to all of. Them you guys successfully defeated
someone you've never met from competing in junior varsity cross.
Speaker 2: Country.
Speaker 1: Wow history will record this was the decisive battle for
The american middle. Class All, right we have to talk
about The Egene carroll. Verdict, corey we didn't get to
talk about. It but the, biggest one of the biggest
stories for me was the fact that The Supreme court
didn't think there was a story here and they will
not consider the five million dollar verdict Against Donald. TRUMP
i thought this was. Huge this leaves intact the federal
Appeals court ruling that upheld the jury finding in twenty twenty,
three which conclude That trump is an adjudicated, rapist that
he did sexually assault this woman and then defame. HER
i thought this was a bigger deal than you. Did
the fact that they denied review without, DISSENT i, mean legal,
speaking doesn't this say that this court has no problem
With Donald trump's adjudication as a sexual. Offender, Well i'll say.
Speaker 3: The good, news which is that you, know they they
didn't look at the argument That trump was, making which
was essentially that because in the lower court that The
Access hollywood tape was, introduced that that was you, know
so prejudicial to the case that that's Why trump.
Speaker 2: Lost and you know that was.
Speaker 3: Rejected And trump's argument was The Supreme court get in,
here and you, know part of the, IDEA i Think
trump's idea and his lawyers as, well it's the presidence
and they really owe him a. Favor he put a
lot of those people, there and so they didn't do,
that And i'm with. YOU i think that's a good.
Thing it shows that, they you, know there's some, integrity
and it shows That trump's case was so weak that
no way were they going to do, it even though
you know that there might have been pressure from the
executive on them to do. It BUT i don't want
to go too, far AND i want to try to
always be precise on.
Speaker 1: This it's very, important very, important and the fact that
if the court refuses to hear a, case it doesn't
mean that it agrees with the lower court.
Speaker 2: Exactly it really.
Speaker 3: Doesn't the court has a and you, know this is
maybe something that we should look, at but the court
has total discretion in the cases that it, takes unlike
the other courts of, appeals and it engages in a
process you apply for writ of circherai or, sert and
the court.
Speaker 2: Can really just, decide you, know we want to take
it or.
Speaker 3: Not and part of what they're saying sometimes in the
refusal to take a, case the denial of cert is,
well you, know it might have been, wrong but it
wasn't so wrong that we're going to spend our time on.
It or they might have been saying there was no
real deep issue of, law and we have so many
more important cases that we want to focus, on so
we can't read too much into.
Speaker 1: It, Okay, well AND i do want to point out
That trump still faces review of the much larger eighty
three million Dollar Egene carol. Judgment but you, know one
quick thing on this. One trump's lawyers argue that the
Access hollywood tape and the testimony from all those other
women where they said That trump did what he brags
on tape that he likes to, do that that improperly
influenced the. Jury why did the appellate courts conclude that
evidence was? Admissible?
Speaker 2: Professor you, know the loss of evidence are very, complicated
and you, know if the Court Supreme court would have taken,
this we would have spent a lot of time looking.
Speaker 3: At whether or not for, instance it was. Prejudicial that's
the argument that you. Can't, basically there are rules of
evidence that keep you from being biased in one case
by considering something that you.
Speaker 2: Did bad in another.
Speaker 3: Case and you, know that's sort of a common sense,
rule and we'd have to look, at you, know those
arguments on both sides about whether it was prejudicial or.
Speaker 2: NOT i haven't done that. WORK i don't want to
claim to know the.
Speaker 3: DETAILS i don't need to because The Supreme court hasn't
taken it and it.
Speaker 2: Stands and you, know here's the.
Speaker 3: Point even if it was prejudicial and it might have
been a, mistake that's not enough to show that it
was such a big mistake that it impacted the. Outcome
AND i think that one reason why we might guess
that The Supreme court hasn't taken this case that they
just don't think it was that.
Speaker 2: Important.
Speaker 3: THERE i do want to say something about one of
the big picture, issues just to. Notice notice there's no
real immunity claim right That, Trump i'm sure you, know
claims immunity for, everything thinks he's beyond the. Law but
the immunity case carves Out trump versus The United states
immunity from prosecution or from liability for official.
Speaker 2: Acts, now this is obviously not an official act because
it happened, before way before he was exactly The United,
states and so it upholds he is a sitting.
Speaker 3: President but this upholds the decision In clinton Versus jones
that found That Bill clinton could be found liable for
his sexual harassment Of Paula jones even though he was
a sitting. President so you know that shows anyway that
this immunity, case although it's really, bad don't get me
wrong that it's not.
Speaker 2: An absolute immunity For Donald.
Speaker 1: Trump All, right we got to take a quick. Break
but when we come, back the greatest political beef of modern,
times The Supreme court Versus Nina, todenberg it gets. Ugly
this IS npr doing some crips and blood stuff. Here
we'll be back in just a. Moment this is the
oath in The.
Speaker 4: Office hey, All Clenn kirschner. Here, FRIENDS i hope you'll
join me on my audio, Podcast Justice. Matters we talk
about not only the legal issues of the, day but
we also talk about the need to reform ethics in our.
Speaker 1: Government here's one.
Speaker 4: Example the oath of, office you, know the ONE i
do solemnly swear to support and defend The constitution against all,
enemies foreign and. Domestic let's add twenty two words to
that oath, quote AND i will promptly report any instances
of crime and or corruption by government officials and employees
of Which i've become. Aware, friends our democracy is worth fighting.
For join us in this, fight because justice. Matters look
for justice matters wherever you ordinarily find your.
Speaker 1: Podcasts welcome back to the oath in the, Office. COREY
i want to wrap up with this very strange, story
but it's, ACTUALLY i think a good. STORY Npr Legal affairs,
correspondent veteran, journalist iconic, broadcaster Someone i've grown up, Loving Nina.
Totenberg she misheard an announcement about retirements at The Supreme
court and believing said announcements to be discussing the retirement
Of Justice Samuel, alito and she posted about, it and
it left other newsrooms scrambling to verify the information because
It's Nina totenberg FROM npr who's going to disagree with?
Her And Nina totenberg called it a rookie mistake on
all things, considered she read out an apology letter she
Sent Dear Justice, alito there were no words to adequately
apologize for today's error in reporting your. Retirement it was
highly my. FAULT i, mean she publicly. Apologized she described
it as the worst error of her. Career doesn't this
actually demonstrate something really healthy about responsible journalism right now
In trump's second?
Speaker 3: TERM i like That, spinehon because you, know if you
think of so much of, propaganda if a factual mistake,
happens call Out Tucker carlson as an. Example you don't
see him fact checking and correcting. Himself maybe he's.
Speaker 2: Positions but he doesn't engage in fact checking, Never and
that's not.
Speaker 1: True apologies are weakness taking.
Speaker 2: Responsibilities it's very.
Speaker 3: Trump, Yeah, unfortunately it's Trump ism has infected a lot
of so called.
Speaker 2: Journalism this is real JOURNALISM.
Speaker 3: Mpr this amazing reporter with a long legacy made a
mistake and she owned up to. It and as much
as people want to claim that this is you, KNOW
mpr is fake, news or use it as an, opportunity
it shows the. Opposite it shows that in, journalism if
you make a mistake and you own up to, it then.
Speaker 2: That is what makes you a journalist.
Speaker 3: Exactly you, KNOW i have to say, TOO i have more,
respect not less for her. Exactly you, know the mistake
was an honest. Mistake she overheard something incorrectly that she
thought was talking about the retirement from the source Of alito's.
Retirement it was. Wrong she actually misheard the person is
what she. Said and then she's made up for. It
so you, KNOW i have an experience with being in
the room with. HER i didn't actually speak to, her
AND i have never been interviewed with. Her but during
the travel, BAND i had a press pass For, politico
and SO i joined the press in their gallery AND
i just have this memory of sitting there and she
came in and this is the courtroom has a left
side to, it which is where all the press set
AND i was sitting in that part of the courtroom
designated for the press print and you, KNOW tv and,
radio and when she came, in there's you, know there
was everybody there that you've seen on, television but the
whole room had reaction, like you, know, okay this is
the dean of. Journalism and she really showed, THAT i
think by owning up to a. Mistake and it's a great,
example far from UNDERCUTTING, mpr And i've been ON mpr many.
Times full disclosure and makes me have even more respect for.
Speaker 1: Them, YEAH i think so. TOO i, mean a free
press that openly corrects itself seems to me an essential constitutional. Institution.
Right we always, hear, oh you can't trust the, media
can't trust the. MEDIA i, mean this kind of public
accountability seems to strengthen the. Credibility courts issue, corrections newspapers issue,
corrections scientific, journals medical journals publish retractions like aren't transparent
corrections of? Mistakes isn't that actual evidence the institutions are still?
Speaker 3: Functioning you, KNOW i think there's no question about. It
and you, KNOW i also don't want to hide from
the eyes incentive that there is to break this, story
because If alito did retire right, now the question all
of a sudden opens up about the balance of The Supreme,
court and in particular the question THAT i want to get,
to which, is you, know what should the reaction be
of The Democratic, party especially if The Democratic party takes The.
Senate and to my, mind this is an, opportunity right
if it happens that there's a retirement or a death
while there's A Democratic senate and we have A republican.
President there is no, question AND i don't, think having had,
informal off the record conversations with people On Capitol, hill
that there's any disagreement about.
Speaker 2: This no way are The Democratic.
Speaker 3: Party is A Democratic senate going to confirm any justice
nominated By Donald. Trump there is no requirement of, nine
and the stolen seat Of Merrick garland.
Speaker 2: Has to be.
Speaker 3: Reclaimed not to mention the ideological rather than legal role
that The court is, played that it would be a
rebuke to that on both, justifications that number will go
to eight and will stay at eight. Naps so there
was a temptation to break this story and the. Excitement
she knew all this, coming and she made a mistake
and she. Apologized BUT i also don't want to hide
from the deeper, story which is An alito.
Speaker 2: Retirement, wow that would be a major moment for this. Time.
Speaker 1: Yeah by the, WAY i talked To mitch McConnell for
about twenty minutes earlier today and in his hospital, ROOM i. Did,
yeah we had a good talk and he was very
specific about.
Speaker 2: How where has he been he's been.
Speaker 1: Recovering he continues to continue the recovery, continues and it continues,
continuing and they can't tell us what he's recovering. From
they can't tell us what he's proving. From but he
wanted to point out to me how terrible he feels
about the fact that he chose to change the number
of The Supreme court makeup for one full year to
eight and he feels just awful about, it and he
encourages us to impeach Both gorsicch And Amy Coney barrett
to make things. Right that's just what he said to. Me,
though one last question about, This. Corey it seems like
social media and the modern political system really it really,
incentivizes it really punishes admitting mistakes right more than they reward.
It like like the social media has just made it
worse than weakness to admit a. Mistake it's made it,
like oh your moral that makes it. Woke like we
live in a time now where the entire zeitgeist is
against taking responsibility like an adult Like Nna. Totenberg just
did you?
Speaker 3: Know it's such a great, Point, John and you, know
on the one, hand independent media is, great but on
the other, hand you, know there's a desire for clicks
and to increase the amount of time that people are
watching you and the more you can be an expert
and be. Flawless you see it in That eco. Universe
you certainly see it in The Fox news, universe where
the only thing that seems to limit it our, lawsuits
like the amazing dominion.
Speaker 2: Lawsuit but you, ALSO.
Speaker 3: I don't want to hide from the fact that do
have real journalists doing you, know fact based, journalism, investigation
the kind of thing that we're relying on all the
time in this, show and we're fact checking our own,
show where owning up to it if we make, mistakes
and that is not.
Speaker 2: Weakness that is what DEFINES i think the.
Speaker 3: Journalism and that's not just you, know, information it's information
necessary for citizens and a democracy to make good.
Speaker 1: Decisions, Absolutely, So, corey let me wrap it all up with.
THIS i, mean we've covered a lot of. Ground James
madison famously wrote if men were, angels no government would be,
necessary And i'm thinking about that quite a bit these.
Days are we just in an era where we're just
discovering which constitutional safeguards were legal and which depended mostly
on political. Norms it's like what we're really learning the.
Difference we really.
Speaker 3: Are And i've got to say something About James, madison
WHO i admire much more Than. Hamilton by the Way
hamilton gets his own music, law that's really a.
Speaker 2: Shame he was for strong executive.
Speaker 3: Power he really fought for a lot of the most
strenuous conception of a presidency.
Speaker 1: Things, yeah But madison guys the coolest part Of wisconsin
named after. Him it.
Speaker 2: Balances, ACTUALLY i think he might need a musical as.
Speaker 3: Well you, know we could go into that on another.
Show BUT i will say that. Quote you, know it's
just painful for me to hear it because it takes
me back to the founding, period which of Course i'm
often writing about and. Studying and What madison believed was
that they had come up with this system that perfectly
balanced trust in a virtuous president with the recognition that,
yes men are not, angels and if there is a
bad person in, power we have the guardrails to protect.
Speaker 2: Us but what are the? Guardrails it was supposed to Be.
Speaker 3: Congress we've seen This Republican congress do anything but act as,
guardrail and The Supreme court and it's done nothing to
act as a. Guardrail the one guardrail that's left to
stop men who are not. Angels And Donald trump is
about the opposite of an.
Speaker 2: Angel he is a devil as you can, get is.
Speaker 3: Us and that's really you, KNOW i think The framers
didn't anticipate that in the election of eighteen, hundred in
getting rid of the want to be authoritarian President John
adams that you, Know, madison and in real, time you,
know after having said, that saw what happens when a
president isn't an. Angel and that's what we've got to
do in these next coming. Elections that's our only, choice
because the guardrails that he thought would.
Speaker 2: Stop the, devil the non.
Speaker 3: Angels you, KNOW i think he knew men were and,
angels but he didn't think there were.
Speaker 2: Devils and you've got a devil in The White, house
that's for. Sure.
Speaker 1: COREY i am so grateful to. You we covered a
lot of ground today AND i want to thank as
always our deeply attractive listening audience and, Uh wendy And
beowulf and everyone who keeps the podcast. Going, guys please
subscribe and also send us your. Emails we'd love to
hear from. You And professor what's the best way for
our listeners to keep up with you and your work
the other six days of the.
Speaker 3: Week, well you can be the thousandth subscriber on the
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Discussion you can listen to us wherever you get your.
Podcasts of, course On, apple we were in the top position,
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there as.
Speaker 2: Well and these reviews are spreading the. Word tell a.
Speaker 3: Friend that is another way that we. Grow And i've
just got to, Say, john we started with.
Speaker 2: Nothing we are an independent.
Speaker 3: Podcast we're not owned by a major, company we're not
owned by.
Speaker 2: Anyone it is.
Speaker 3: Truly, independent and yet we've grown phenomenally without a big corporate.
Backer and so support independent. Media support this. Podcast tell your, friends.
Speaker 1: Thank you so. Much AND i also want to let
everyone KNOW i host the evening programming on SIRIUS Xm.
Progress but that is coming to an. End as Of,
Monday july, thirteenth we will be live in the daytimes
On SERIOUS Xm Progress. No channel one twenty, seven nine
am till twelve noon on The west, coast noon to
three pm on The East. Coast we'll be Following Stephanie
Miller live and our first new show again in our
brand new. Format it's going to be Called The John
Feugelsang show On SIRIUS Xm. Progress will feature a couple
of very special, Guests Professor Corey bretschneider and FORMER Us
President Martin. Sheen they're both together on our first episode
as we kick off our brand New SERIOUS xm show On. Monday,
corey thank you so much for everything you do and
for everything you've taught. Me and again thanks To wendy
And beowulf and to everyone who listens to The oath
in The office. Podcast I'm john Fiegel sang ANYTHING i left, Out, professor.
Speaker 2: It was great and good luck with the new.
Speaker 3: Show what an honor to be on with that on
the same show with that former.
Speaker 2: President as we want To you're a new SERIES xm. Show,
sure thank.
Speaker 1: You my parole officer had to do a lot of
work to make this. Happen thank you as, Always, corey
and we will see you all y'all next time on
the oath in the office