A Brown Professor on the Shooting—and Gun Laws

Welcome to another episode of The Oath and The Office. I am John Fugelsang. It has been a week of unspeakable violence and loss and it is a very solemn occasion and a very sad week. And I am very comforted by the wisdom and warmth and humanity of my co-host Professor Cory Brechneider who is of course a Brown University Professor and Cory, welcome. It is good to see you. I know that this horrible shooting on the Brown campus has probably affected you deeply. Thank you John. It is terrible. The events are unspeakable. We have two students who have been shot and murdered and both remarkable students by all accounts. The campus, the Census fear, I was not on campus at the time of the shooting but I can speak to the fact that people are reeling. It is really quite horrible and yet at the same time I would say that there is massive fear on the campus because as of the time that we are recording this they still have not caught the perpetrator. There is no one in handcuffs. People are extremely fearful but there is also at the same time a kind of resilience. Just speaking to people, some of my students for instance worked for the newspaper, the Harold has been furiously continuing to report on what is happening. Students are banding together. They are making sure that no one is alone when they are going out at night. At this point I think most of the students have left campus but while they were still there there was a sense of solidarity. It is one of the unspeakable. It is not something that I could have even imagined happening on our campus. Frankly when I have seen school shootings before I thought that is something that happens somewhere else and of course that is how everyone feels until it happens at your own. Lace. Do we know anything at this point about what happened? It was during an economics review session. This is obviously during finals week. They have no idea whether this was specifically targeted against specific individuals or what the entire mode of might have been. That is right. There really is no sense. We know that what happened was that inside the room where this economic, it was an introduction to economics class and this was a class in particular that had undergraduate teaching assistants to help with reviews and discussions of the material. This was a review session for the final exam that was taking place in the engineering building. The shooter came in, the undergraduate teaching assistant said that he saw the shooter look him in the eyes before opening fire and were also in addition to the shootings that occurred in the room where some evidently in the hallway outside. This is an older building on campus, the engineering building. It was an economics class but I should say reviews, sessions like this will happen all over the campus because we need the rooms and each department won't have enough often for its own students. That is why it was in the engineering building even though it was an economics class. And the tragedy is unspeakable. I will say one frustration is why do we not have more information and it turns out that that building didn't have a lot of cameras in it because it is an older building on campus. Yeah. Obviously, any violence with guns in this country is going to be politicized as well it should be. This is a White House that has made it a practice of putting out information on social media and then deleting it rapidly. That happened in this case as well. We've seen this before when Pam Bond announced that two DC National Guard members were shot when it wasn't DC National Guard and that had to be deleted. We've seen it with the Charlie Kirk shooting, this White House tends to put out information right away after the Charlie Kirk shooting to tell made premature pronouncements for the first hours. And in this case, the president said that someone was already in custody. That wound up not being correct and then the president came out and began blame shifting. And perhaps to distract him his own mistake was suggesting this was a failure of the university. Not of the gun laws that allow lunatic males in their 20s to easily get products designed to kill lots of people really fast. It's a failure of the university. Cory, I want to ask what does constitutional accountability actually look like to you in situations of mass violence? We have to see it through the personal lens. There's no way for me not to see it that way. But it also immediately, especially with this president raises questions, not just about law, but about what the purpose of government is. And if there's one purpose of government, it's a basic task. It's not it's only one, but it's to keep people safe. And so when you hear the president of the United States saying, well, it's not my problem. It's the university's problem because they failed to, the FBI hasn't found the person already immediately shifting blame like that. It's like, well, he doesn't understand the basic role of the government is to provide safety. And how could somebody be so clueless? But of course, that's consistent with what we've seen. And when the FBI director releases the name of this person in custody, even though there wasn't reason to hold him, it turned out in the end, jumps the gun. That's also all about narcissism, about his own ability, cash, Patel. Exactly. It's not a surprise. He would have, I would have loved to have think that an crisis like this where a university is attacked, senselessly, violence of young adults, two murders, that the president would step forward and rise above it and the FBI director would do the same. But we've seen the opposite of that. And we've seen the cluelessness to not understand the role of the federal government is to protect us. Well, standing up and handling it is what men would do. And the president and director of the FBI are not what we call men. But blaming institutions, right? That's a great way of avoiding the more inconvenient national conversation about gun violence in this country and why other people around the world are looking at us in shock that we keep allowing this to happen. But just to put this to bed from your perspective, professor, what is the responsibility of a university and where does that responsibility end? Look, I don't think anybody at Brown would, I know that no one at Brown would disagree with the fact that we've got to really take a serious look at our security. And that's exactly what's going on as the emails come out. We received probably three emails a day from the university detailing both the investigation but also what's being done. And yes, there is a comprehensive look at the security at Brown. For instance, you shouldn't have to use a key card in order to enter the buildings. We were told that the building was open because it was final exam period. Well, that's something that probably has to be looked at. As generally, the security needs to be looked at. I mean, I will say that I know a lot of the, we have our own police department on campus. These are extremely dedicated people and people who work at Brown love the university as I do. So there's no individual fault here, but at the same time, the university will look at the way that we provide security. But I can't emphasize this enough. That's not to say that the FBI, the national government, that after all, a huge portion of our tax dollars go to funding this agency that is supposed to protect us. It can't abdicate that responsibility because the president has decided that he's frustrated with the investigation and wants to blame a specific institution that doesn't have anything like the manpower and resource power to conduct a national high level search for what is a threat not just to Brown, but to everyone. I mean, this is somebody we don't know what the motive was, but clearly unhinged and dangerous. Well, let me ask the big question that we've never discussed before, Corey, but it's never had this close to home for you as a professor. This country has normalized mass shootings in ways that all other first world democracies simply have not. And I want to get your take on it. I mean, why? How should we respond to claims that nothing can be done? I just think it's false. I mean, there are things that can be done to prevent this. And one very instructive thing to do is to look at the comparative cases. Now of course, there was also around the same time as the terrible events at Brown, a tragic anti-Semitic attack and killings in Australia. That's right. But when you look at the response of Australia, first of all, in a previous mass shooting, legislation was passed pretty quickly. And when you look at the world. I'm sorry, 1996. I want to point that out. 1996 we're talking about. Go ahead. And when you look at the graphs of what followed in 1996, it was a massive reduction in gun deaths. We haven't seen anything like that in the United States and gun deaths continue to happen. This isn't the only killing this year. It is an unusual. Unfortunately, it is normal. It's never happened at Brown before, but it's happened around the country. And the false sense of security that it can happen to me that I was admitting that I had is just not right. But when you look at Australia, it shows you restrictions on guns, gun control, really does work. Look at New Zealand, similarly. Now that there's a reason why they can act so quickly in those two countries, and that's because they're parliamentary democracies that have just a lot less of the slowness that we have in legislation. But that's not to say that we can't act eventually. There is pressure, I think, in those systems. There's a flexibility that allows for rapid action. We're not going to get gun control legislation without a change in the House and the Senate, but we do have an election coming up, and it's not going to happen immediately this legislation. But it can happen. We can have serious gun control in this country. And that's what I think partly this election has to be about. Again, returning to the issue of basic safety and whether or not the government can provide it. I mean, if we want, if we have the will, if we're pro-life, if we're patriotic, if we care about the lives of other Americans, we can do this. We've seen it before. Government policies have gotten us into messes. Government policies have gotten us out of messes. Other countries have the same mental illness, the same violent video games, the same SSRIs. They do not have access for emotionally unstable 20-something males to products designed to kill lots of people really fast. And we're already hearing the right wing overwhelmingly described as Christian pro-guns proliferation, folk out there who are saying, well, this goes approved that Australia, oh, the gun control doesn't work. See, gun control doesn't work. Now, 1996, they passed this law and they haven't had a mass shooting sense almost 30 years that you can still get guns in Australia. But our country has 12 times of population of Australia. And we have 580 times the number of annual gun murders. What do you say to these nae-bops who say that strict gun laws don't stop violence altogether? Why should we even try? It seems like it's just a rhetorical trap to stop any progress. And I keep thinking these people, you know, how they hated gay people until their nephew came out. I fear Corey that we're in a society where it's going to be one degree of empathy and every one of these Republicans is going to need to have someone they love get shot before they care about reducing these stats. Yeah, I think it's, you know, part of the problem with the specific policy issue is that people rely on anecdotes. And so, of course, a lot of anti-gun control forces on the right are willing to say, oh, look, it happened in Australia, gun control legislation doesn't work. But that's not how empirical analysis of policy is supposed to work. You look on the whole, not at the specific examples. And the truth is, they have seen after the 1990s shooting, 1996 shooting of massive reduction in attacks and gun deaths. Now they're looking at more about more restrictive legislation and the fact that they have some of the most restrictive legislation in the world hasn't done the trick. And so they look at the data, they say these laws work. Let's do more, not less. And the United States, things get so politicized so quickly. Of course, you know, I'd be remiss to not mention that so many on the right were very quick to point out that this somehow was an attack on conservative students because unfortunately one of the students was a member of the young Republicans. And they were delighted the fact that the other student was a Muslim student. And the idea that this is a political attack based on ideology has no founding, in fact. And for anything that we've seen so far. So it's just a sickness of our society and our system that we're willing to politicize this in as quick a way as we can, especially, well, frankly, on the Trump side of things to say that Australia's evidence gun control doesn't work. This is like Charlie Kirk's death and attack on the right. And none of that is based in reality. We've got a, you know, return to a sane politics that's based on data, that's based on safety, that's based on shared values. And the leadership failure that we're seeing at the top is really one of the worst things about it. Of course, the absolute worst that's themselves and the attacks and those in the hospital. But watching a president just degrade himself and degrade all of us with this rhetoric that has been a horrific part of it. Yeah, just the unspeakable atrocity of indifference. And I should point out this Australia shooting, you know, this was truly an anti-Semitic attack. We've sort of gotten endured in the last couple years to anything that criticizes the civilian government of Israel being called anti-Semitism, which I think is very, very dangerous and just strax us from the real true hatred of our Jewish brothers and sisters that's out there. And I got to say, it was a Muslim man who was one of the heroes of this occasion and that is a very, very narrow silver lining. He's already raised a million dollars for his recovery in the hospital. But Corey in the light of all this, Australia came out and they said they're going to pass more gun laws to try to make sure this doesn't happen and they have a constitution where they can do that right away. Over here, we already know. And he moves. Barack Obama tried to have expanded background checks, 90% public support and he could not even get an up or down vote in the Senate. I want to tug on your code before the break about Heller. The landmark 2008 case, Columbia versus Heller, where Justice Antonin Scalia, the patron saint of all of these right wing guys, wrote the majority opinion where he said yesterday you have a right to bear arms for self-defense, but said the right is not limited and is compatible with longstanding gun regulations. Scalia said that the Second Amendment doesn't pose a problem for lawful regulations that have historical support. So why is this so hard? Constitutionally speaking, Scalia himself says meaningful gun regulation is compatible with the Second Amendment as it's actually written. Yeah. I mean, I'm a critic of the Heller decision. I think that the right understanding of the Second Amendment is that it's a dead letter. The Second Amendment talks about a well-regulated militia and everything that follows from it is about well-regulated militias, which are an institution of the 18th century that don't exist anymore. There were a way of allowing for civilians in the absence of the standing army to come together in order to provide defense of the nation. Well, that's not a thing anymore now that we have a standing army. So to my mind, and this was the law until the Heller case that the Second Amendment is not really about individual rights. Now, the Heller case changed that. And then, made Scalia said, well, that preface, as he put it, that prefectory clause is irrelevant to the fact that there's still a right to gun ownership for individuals. Now I disagree with it, but even Scalia, and I'm just now adding and enhancing what you said, John, Scalia pointed out that it's just say well-regulated. And so if you think that clause matters, then the kind of right that there is is one compatible with regulation. So the idea that this is some sort of absolute right in the Second Amendment, even if you're a conservative, is just wrong. So there is no constitutional bar on doing something. Taking away all guns, yes, I think that the Supreme Court certainly would not allow that. Which nobody's called for. Nobody's calling for that. Absolutely. And, you know, in the absence of that, any sensible regulation is not just, let me just emphasize this, I have a piece in the Guardian that we can link to on the sub-stack, that it's not just that it's allowable under the Second Amendment. The Second Amendment to the degree that it says anything about gun regulation, it calls for regulation. Because even when it came to these militias, they were worried enough about guns that they wanted them regulated. So if there's anything that survives of that preface, well-regulated, that means we've got an obligation to do something. The piece that I'm talking about in the Guardian that I had talked about the Stoneman Douglas activist that came after that shooting. That's right. Really, to my mind are the true defenders of the Second Amendment. If you want to take that seriously, the idea of well-regulated, then that's what they were calling for, not the abolition of all guns. And I will say something on a sort of hopeful note. This is an unspeakable tragedy. But I want to shine a light on why Brown is a special place. We look for students and admissions who are self-motivated, who are sincere about beliefs, about public policy, about the public good. And what I believe you're going to get is 5,000 students, young adults, who as they grow, as they, after they've handled the aftermath of this tragedy, are going to turn into activists who are going to demand regulation. And I don't think all of them are going to be from the progressive wing of Brown's campus. I think they're going to come from all the wing. Because when you see this firsthand, you're not going to stand for it. And when you know that something could be done, you're going to do something about it. So these are talented, motivated people who I think, like we've seen before from the Parkland shooting from Stoeman Douglas, are really going to step forward and do something. So I take heart in that. I do too. I mean, the majority is with us. The majority wants this to be reduced. The majority knows that we can have an America where you can tap. We can tackle a guy when he has to reload mid-mask her after 10 rounds. It's not that hard to do. And we can achieve it if we have the will and if we're pro-life enough and patriotic enough to care about our fellow Americans. At this point, Corey, I'm already defending Scalia on this show. It's that bad. So I'm going to really need to have some laughs about Susie Wild setting the entire White House on fire and unspeakably candid interview with Vanity Fair. But we'll get to that later on. Quick break. We'll be right back in a moment. This is the oath and the office. Hey, it's Corey. 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And tell them, I send you. I wrote a book about how these right-wingers aren't actually on the side of Jesus, and historically, they never have been. Separation of Church and Hate, a sane person's guide to taking back the Bible from fundamentalist, fascist, and flock-leasing frauds. It's a very irreverent and biblically correct book for believers, atheists, agnostics, and anybody who's ever going to have to deal with a Christian extremist in your family workplace or government. When all the issues that divide us using actual verses from that book, they claim to follow. They've got a First Amendment right to twist the Bibles of their liking. You've got a First Amendment right to call them out for it, and you'll be surprised at how good it feels. Welcome back to the Oath in the Office. I am John Fugelstein-Cory. Let's take a break from violence and talk about the violence being done to the separation of Church and State. This new legal challenge in Tennessee, it seems, is about to revive the question of religious charter schools and how they want so badly to make public funds go to private religions that you can hear the founders screaming from their crypts. Cory, tell us a bit about this case in Tennessee and why it's such a big deal. Well, we had a case some months ago about the question of whether or not there was a free exercise. The Constitution has two religion clauses, one guaranteed the free exercise of religion, the other banning the establishment of an official church, or laws respecting an establishment of religion related to the establishment of religion. The argument that the court is going to consider again and already considered it once, and I'll talk about what happened, but the court is going to consider the question of whether or not there's a violation of that free exercise clause when it comes to denying religious public schools the ability to exist. There are, of course, these charter schools that are involved choice of students, but that are public. And the lawsuit says denying the ability to create a religious public school is a violation of the free exercise clause. Now, why is that? They're saying that it's a kind of discrimination that what a charter school does is it creates a variety of different choices. And if you're saying one of those choices can't be a religious one, then we're not going to allow it. So, what happened the last time the court a few months ago considered this is Justice Barrett recused herself because- I was going to ask about that. Yeah, that's what we ended up in a deadlock because she recused herself. So, I mean- We're to four. Yeah. She's been basically so involved in the issue and turns out was a close friend of one of the litigators and that friendship, I think, led her to- we don't know the reason for her recusal, but that's my sense that she stepped down because of her friendship with this litigator. I don't think she recused herself just because she has strong feelings on the issue. Justices have strong feelings on all sorts of issues. So, that led me at the time when we covered it before or back in the spring to suggest that this isn't the end of it. We're going to see another case that this will be teed up again, the court will take it. And likely this time she won't back down, that she won't recuse herself. And I am very confident that her vote will be to say that yes, there is religious discrimination involved when you deny the existence of a religious charter school. And so, I think we're going to have new law on this subject, five, four decision this time and we'll cover it as it comes up. I mean, you know how I feel about this professor I wrote a book about it. These fundamentalist Christians do not care a damn about the Bible or the things Jesus talked about. They care about conservative Christian power. That is their goal. That's what all of this is about. It's not about using the teachings of Christ to make the kids better people. It's all about Christianity. Their version of Christianity. Having more power. It's everything the founders warned us against. Their narrow right wing version of the gospel and having that be administered in our government. Are we seeing a shift from religious freedom from government to religious entitlement to government funding? It really seems like the deck has been stacked enough to begin to make that undoing of the Constitution happen. I love that way of putting it and of course your last book and I know you're thinking about this for the next one too is about that and it couldn't be a more important issue because I think the framers rightly did worry about and I'm going to go back to the Constitution in its language because it really helps us to navigate here to see what's wrong with this reasoning. I tried to lay out why the justices think this is a free exercise violation. What it does is it really eviscerates if they do this. The most important part of the religion clauses and that's the establishment clause and the framers themselves emphasize this idea that not only would we not have an official religion but that we wouldn't have laws that related to or were like laws that you would have if there was an official religion and what is a religious public school after all but saying that government can endorse and teach some religions as true and others as not true and that's my worry that there once you open the door to religious charter schools there's no careful distinction between say secular subjects and religious. That's the same right? Teaching religion as true and that's not what a pluralistic a multi-racial multi-religious society is like and you know let me just say one more thing about this you know the whole idea that we're not a nation that embraces one religion it's school system a nation's school system is how we impart what we are the court had so carefully distinguished between the kind of funding for religion that we might allow and it was subtle about this in a case called lemon it said for instance look it's fine to give funding to religious schools for secular subjects for math for reading and in fact my mom I'll mention my mom who listens to the podcast by the way work for a long time as a guidance counselor in a Catholic school now they had they'd distinguish the separation of church and state by having her in a van across the street from the school but they still were providing services to the students these were careful ways of working out the difference between saying we have an official religion and that we can fund secular subjects or services for students and that's all being wiped out by saying yes we can now have religious schools once you do that I don't really know what the limit is on having an official religion. And in fact just as Thomas did just go we'll talk about him later too but to show you how radical direction things can go just as Thomas thinks you can have official state religions and he looks at that he says there would be no problem with the state of New York saying that we're Presbyterian or declaring official religion and that really is a violation of the framers idea. It's madness and it's scary as it is to think about a talking snake being taught in science class what really makes me the most upset about all this is a big chunk of this I've come to believe is about teaching girls the biblical roles of girls and womanhood and I think that's driving a whole lot of this too. I think it religious freedom that's the part you know it's violating the values of pluralistic society and at the same time falsely claiming it's freedom and I have them that's where ahead. The question we always have to ask whenever this debate comes up and I'm sorry to bring it up again but how would religious charter schools funded by taxpayer dollars affect students of different faiths or no faith at all. I'm already hung up on the fact that this whole charter school scam is designed to make poor kids fall through the cracks and turn the public school system into a place for the poor kids to go. I mean this is just bringing back segregation in so many ways but what about the actual kids? What about kids who weren't Christian weren't religious or weren't the conservative Christian which of course does not focus on the teachings of Jesus just focuses on power. I mean what about those kids? Well I think you've got to you know what they would say the defenders of this system is it's about choice and what a charter school does they're not private schools they're public schools so they're free and you don't want your kid to go to that school then they can go somewhere else but you know so much of this comes down to where you live and so say that the one school that's high quality in your area is a religious Catholic school for example if that's the only choice that you have you know well you might wind up making that sacrifice even though those aren't your beliefs and then all of a sudden you've traded for the educational value of your kid you know the values of your family and now all of a sudden you're being taught this totally different set of values and the idea too I will tell you I mean I think I've shared this before but when I was a graduate student I was part of a group that would often have prominent host prominent conservatives and I loved it because I got to sit there in these conversations but I won't forget you know I won't reveal enough to know who this is but in this one of these conversations there was a federal judge who talked about the idea that you know she didn't really get why liberals like me frankly were so upset about religion in schools and Christianity in particular because in her kids school there was a Christmas pageant and all the Jewish kids loved it and it's like well you know I just think it's just not showing the idea that and I'm going to go back to the founding as you mentioned please the urge Washington is letter to the Newport congregation Jewish congregation in Newport the Toro synagogue he talked about the fact it's such an incredible letter yeah you were asking is there going to be an official religion in the United States the congregation wrote to him to ask that question rights is incredible letter back that says not only is there not going to be an official religion but I reject the idea of mere toleration those are the words that he used that I'm not going to think about religion as you know Judaism for instance has just a tolerated religion it's going to be equal with all religions and how are we going to ensure that the idea of equality comes from the ban on establishment so you know that's what this story doesn't get the idea that yeah the Jewish kids were happy to see you know this other religion highlighted on stage not by the way in a pluralistic display but in one that prioritized one religion above others no that that is a violation of the basic idea that we are equals in the society regardless of our religion and that you know take it from no no better authority than George Washington I want to shift gears a bit keep it on the Supreme Court for a story that's quite disturbing and that is about racial discrimination in jury selection for death penalty cases which obviously is a problem that as always exists but right now the Supreme Court in the Pittsburgh case is reviewing this it led to racial bias in the jury selection in a death penalty trial Cory why does this case matter I'm actually surprised in 2025 that we're still seeing cases like this make it up to the court it encourages it it warms my heart to know that the people care yeah I was going to say you know we're so often talking about destruction of the constitution on this podcast you know the first part of our podcast was about horrific events in which the apparatus of government is failing to respond entirely and when it comes to gun control and the religious charter school argument to my mind is is a very worrying development but here's a good thing which is that there's a case called Batson that prohibits discrimination based on race in jury selection and especially in death penalty cases that you can't have a prosecutor who's trying to exclude black jurors for instance in the hope of getting a conviction and there's a prosecutor who in an earlier case did just that in the Supreme Court in a seven to two decision made very clear that Batson is still the law that we're not going to allow exclusion of jurors based on race so they get conviction especially black jurors to ensure an all-white jury at that period of America is over now you know at the same time that I want to highlight that it looks like the court has another one of these cases that they have the votes continue this extremely sensible basic requirement of civil rights just as Thomas is spoken out about this in a way that I just think it's important to highlight because you see how bad things have gotten he says well I understand why the court is applying Batson but Batson's wrong and in a color in a color blind society what we need to do and this is of course his main one of his main views color blindness yeah he's not look at whether or not there's discrimination I mean it's just bad huh well you know color blindness is for people who can't bring themselves to be color conscious Corey as we have learned I mean I have to say too you know it just shows how this language of color blindness really is a way of saying we don't believe in anti-discrimination legislation exactly and you not take race into account exactly stop discrimination that's how you do but doesn't racial discrimination and jury selection undermine the legitimacy of the entire justice system yeah I mean how could you claim that you have an impartial system if you are trying to stack it with people based on race in a way to ensure conviction it's almost the definition of what the apartheid society of the 18th and 20th century was the fact that so many false convictions happen because of just this excluding black jurors making sure it's an all white jury with black defendants and that's what Thomas evidently wants to bring us back to I mean his color blindness I could sort of understand the argument although I vehemently disagree with it in areas like affirmative action but when you get to to the core idea of discrimination that you're not supposed to take race into account you show how misguided he is and you know I don't know what motivates this person there are all sorts of speculation but you know worry about being condescended to but this is the core of anti-discrimination that he's now challenging I mean the 1964 civil rights act bans discrimination based on race bans segregation I imagine that on those things as radical as he sounds as he thinks that legislation is misguided too but let's be honest here I mean you know me death penalty is my biggest issue and to me it's inherently shows that that a death penalty system that historically for decade after decade shows racial bias how can the system ever be considered just right like it's already on june I already think it's it our system is invalid because we kill people we murder our prisoners we're the only advanced country in the first world that still murders our prisoners what does it say about American democracy professor that these cases keep popping up I mean by the way this is not the first time the same prosecutor has been accused of removing black jurors so at what point does a pattern become constitutional evidence there's one of the most important lines I think in the history of the death penalty and I'm gonna say something about the history in which one of the justice says I I will no longer tinker with the machinery of death Harry blackman Harry blackman says great I remember and to my mind it's such a profound moment because the court's history is that in firmin versus Georgia in the 1970s they do say that the eighth amendment bans the death penalty that the idea of cruel and unusual punishment can't be made compatible with the death penalty and they do that for several different reasons one is they say racial discrimination that's the main opinion is no endemic into the system it can't be overcome and that's what we're talking about now we're seeing that here and you know banning the jury that's all white is one thing but it shows you that this is just one part of a deeply discriminatory system another issue that's raised is innocence that you can't undo the conviction and killing of an innocent person although there are many instances in which this has happened so the irrevocability is a problem but the main opinion by justice is Marshall and Brennan that I tend to turn to it's a concurring opinion but it was the one that I wish would have stayed on says that you know there's something about the dignity of human beings that's being able and a government doesn't have the ability that's it's not within the government's power to take life and to violate that basic human dignity now the follow up to this in a case called Greg versus Georgia the courts of the opposite of this black man quote they did allow for the tinkering with the machinery of death and as the the state started to come up with methods of for instance bifurcating juries having the guilt phase different from the second phase of figuring out whether or not death would be a punishment or not right or it loosened up and allowed it and so we're back to tinkering with the machinery of death and I couldn't agree more that is a total mistake and I should put in here just for my pre-g moment that um these people who are fighting for this identify as Christian and I'm sorry but the hypocrisy has to be mentioned Jesus if you believe this book they wave around overwhelmingly opposes murdering prisoners or sinners even the ones who deserve it if you believe this book he overturns retributive justice as a concept in the sermon on the mount he stops an execution says only sinless people are allowed to execute i mean time and time again he opposes the idea of murdering bad people who are prisoners and i just wish that at some point the media and the court system could begin using the hypocrisy argument because again these folks they keep saying they want conservative Christian values they don't want the values of Christ and that is why what they're trying to do to our government in every level is so insidious because they're not really trying to push christianity on us they're trying to push their version of it and that's what's destructive and like all our conversations john one of them the great things that i think we're doing is we're having a conversation on a constitutional level on a legal level on a policy level and then we're bringing in questions of faith and and belief and i think two one of the allies in this fight might be the new pope who has been saying what you've been saying and and we'll start to highlight this issue in a way that might i hope so get american back on the agenda it's not immediately in the future that the congress is going to ban the death penalty but i know that i mean i don't long run i don't see it coming any time in my lifetime but again this is something that that jesus is on ambike was about and to the vaticans credit i will call them out all day cory you know on hypocrisy and and gender injustice in the home of phobia and the sex hang ups and the the looting and the pillage i could go on but when it comes to this they're they're right on so we have a lot more to cover on the oath in the office please do stick around when we come back i want to talk about Lindsey haligan who uh boy i wish trump could just quit her and of course suzy wiles has set the white house on fire and it looks like she didn't mean to or maybe she did and the white house chief of staff is already putting space between herself and this parade of mediocrity don't go away this is the oath in the office there is a lot i mean a lot going on in the news around our government and our laws and there's one question we hear all the time is this constitutional if you don't remember all the civics classes you may have taken in school you can get the answer to that question and many others by listening to civics one on one the acclaimed podcast from new ham sure public radio civics one on one is an entertaining way to learn about how our government works or at least how it's supposed to work and you'll hear a lot of surprising stories along the way hosted by hana mccarthy and nick kippote che civics one on one will help you understand a bit more about what's going on and maybe even make you a smarter citizen you can listen to civics one on one wherever you get your podcasts and tell them the oath in the office sent you hey all glen kershna 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 government here's one 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 22 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 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 podcasts welcome back to the oath in the office i'm john fjell saying it's so good to have you with us professor kory brecchnighter wow can we talk about lazy halegan just a little bit because trump is now pushing this bid to get the senate to confirm her as u.s attorney for the eastern district of regina in november a federal judge said her appointment as the top prosecutor was totally invalid and that is why the litusha james case was dismissed by the james komi case was dismissed as we've talked to you many times i think the greatest grace given to america is that when it comes to our fascists they tend to be more dumb than evil and all these preventable problems but i want to ask you about lazy halegan because she does fit the trump profile of why he'd want to have someone like her for a lawyer she's hot a moral and obedient to him which seems to be the three things he looks for in a woman but at the heart of this this is a what they call the blue slip tradition right the century old practice where they're going to try to get her in there anyway what is this tell us about how the senate is supposed to act as a check on presidential power because i kind of feel like they're going to be teaching lazy halegan and law school for a long time and maybe that would be her great gift to jurisprudence yeah i did somebody who is not qualified obviously and was not legally appointed and just remind listeners we covered the litusha james and komi indictment and the court's smart move of saying these indictments aren't valid because the prosecutor isn't lawfully appointed they tried to have her as a interim appointment although she didn't meet the criteria so now trump is swallowed the pain and seen that this isn't going to work just sticking her in there that we have a check which requires confirmation by the senate and he's going to try to get her through so that's a constitutional lesson that's important this blue slip tradition we talked about the problems with our system of government and i'll put the senate there too that one of the problems is that it slows things down and so when you see australian new zealon zip through gun legislation gun control legislation it's because they don't have they have a parliamentary system it doesn't have the slow gears of policy that a presidential system like ours does but there are good things about it especially when you have a president who is wanting to attack the rule of law and democracy one is the requirement of the confirmation process but the other is the blue slip process which can be pernicious in the hands of those who want to see you know block appointments that are progressive say in states that are not and it gives senators a lot of power but here it's protecting the basics of the rule of law it's protecting against an appointment of somebody who really is not qualified and both the requirement of senate confirmation and the blue slip process which differs to the senators from the state in question of the appointment of the u.s. attorney requiring essentially their sign off i don't think that the blue slip process is going to work with an appointment like this of somebody who's totally unqualified so i understand how the blue slip is supposed to be how the senate should act as a check on presidential power and as you mentioned lensee haligan has no prior prosecutorial experience she was trump's personal attorney that's very unusual right for u.s. attorney nominee i mean like this seems to be a textbook case about the independence of federal prosecutors criminal cases against trump's political adversaries were dismissed because of her involvement as i mentioned komey and james so what does this reveal about the risks of politicizing the justice department in the first place i mean why does it matter for public faith in the rule of law if you're going to try and corrupt the justice department maybe get competent corrupt people to do it for you well i think that maybe is one of the good things to learn about all this that there aren't a lot of competent and corrupt people the justice department has a long history especially after the nixon administration of prioritizing integrity and you have people who you know it's seen for law students for instance to get into the department of justice honors program to be a u.s. attorney people like pre-barara who right i've had the honor being on his podcast will be on with us soon can't wait you know these are people who are at the highest level of the legal profession and exhibit integrity and yet we have a president who's figured out that if you have people like that in power they're not going to do things like in diet is political opponents so he looks for loyalists overall that's it and now what's the check on that well we're seeing in real time what the check is it's the senate and the confirmation requirement and the limit on using interim appointments which don't require confirmation and it turns out it's also hopefully this blue slip process which requires essentially the sign-off of senators from the state in question on which the u.s. attorney will be appointed so if trump is arguing that blue slips are a scam because they block his ability to govern i mean i think he's pretty much saying it's not really about efficiency it's about getting rid of the guardrails that prevent him and future presidents from installing dopey loyalists in prosecutorial uh... could have said it better john it's a great way to put everything is dumb and stupid if it means blocking his power because this is and you know we've been consistently saying this since we started this podcast this is his attempt to destroy the senate to destroy the courts to destroy the independent civil servants who would check what he wants to do and to install an authoritarian monarchy or dictatorship that's really what he cares about and so every time he sees the system stopping him he says it's stupid because that that's what he's all about is his own power now you know when we first met and i wrote my piece trump versus the constitution i thought it was obvious that he learned that lesson very quickly because you know the constitution if he were to win that the constitution was above any person well in real time we're seeing that that's not obvious that president trump often is defeating the constitution but you know he's not winning in every case and this is one of them which is clearly not winning thankfully busy while is not to jump ahead but but you know admitted that she's been trying to stop him on his retribution campaign is revenge campaign against latisha james and against komi actually i should say she distinguished between them latisha james she said she understood komi she was not happy with in the interview but you know the bottom line is you have a president is using the office not to do what he's supposed to do but to take revenge out on political opponents you can't do that if you have the tradition of integrity in the department of justice you have to subvert it and thankfully the blue slip process confirmation that looks like it's throwing a ranch in his plans well you brought up suzy wild so let's let's finally go there a feel good story about a deeply feel bad experience with all of this violence and loss and and death this week i want to thank suzy wilds for making laugh today we've talked about the white house chief of staff that i've shared with you my puzzlement about her professor what is her role she seems like the adult in the room that trump surrounded himself within the first term now she seems like the only of course in the first term he only had adult film stars in the room but now i've thought suzy wilds is i guess her job is keeping this on the tracks and i don't know if she's doing a great job or a bad job but she gave a series of interviews to vanity fair and wow i hope this lady talks a lot i want to hear her look i mean like we're gonna we're gonna see quotes from vanity fair in future court cases i'm pretty much convinced but to your point professor she openly acknowledges that trump is pursuing criminal prosecutions out of a desire for revenge so let's start with that from a constitutional perspective where is the where is the bright line to you between lawful authority of the executive and unconstitutional abuse of power when prosecutions are motivated by petty personal vengeance look the point of the job and it's outlined in the oath of of office that's why the podcast is called the oath in the office is to preserve protect and defend the constitution to protect the rule of law and the opposite of that is somebody who uses the office for their own personal grievances so let's take the two cases just to come back to them yeah please which he is relentlessly pursuing prosecution one is which Susie wilds did say was a bad thing to do was against James Comey and she essentially said look he's only was doing his job and all the things that trump is upset with him you know have to do with with his role but the thing that really got me that was so strange as she said one thing was she would let him do it for 90 days and then yes pursue revenge but mean exception for leticia james and just to remind you leticia james one i think was a 500 million dollar correct trump organizations and she made and leticia james got all of us to feel sorry for banks the irs and insurance companies because trump was ripping them all up and it's not easy to make people care about those three entities i'm sorry professor go on so there Susie wilds is like well i understand she got five hundred million dollars of his own money leticia james didn't get the five hundred dollars of state of new york was supposed to get it and actually the number was adjusted subsequently lower even though the liability stood so there's just sort of a weird misunderstanding and the way you know she has some basic idea that this is an okay to seek revenge but the ninety day exception and the teacher james exception tell me this isn't somebody who's all there somebody who is got some conscience but it's like she has a quarter of a conscience or yeah or i don't even know if she has a conscience or if she knows the way this movie ends which as i've said many times this movie ends like the last scene of scar face and i think i mean i got the impression that this was a chief of staff really starting to put serious distance between herself and the malfeasance she's propped up i mean as you said she described trying and failing to get trump to stop his score settling as she called it after 90 days the fact that she would say that to me it tells us that this this is not incidental revenge this is ongoing retaliation he's not going to stop what is the constitution cori i'm trying to frame this right what is the constitution assume about presidential character and restraint or just basic human decency and what happens when those assumptions break down i mean it is possible that the founders could never have imagined a oligarch millionaire birthed racist narcissist with decades have untreated syphilis in his brain i mean that the constitution assume anything about presidential restraint and and if those assumptions break down we're just stuck with a dictatorship the founders couldn't have predicted i mean i always when we talk about the founders want to come back to the debate between those who wanted to ratify the constitution and those who were against ratification and you're right to say that the founders in the sense of those who were pro ratification people like hamilton and madison and jay the writers of the federalist papers they thought look you know we're going to have george washington will use him as the model of virtue and george washington made good on that promise when he says in the second inaugural i just took the oath of office it requires me to protect the constitution and if i violated subtract me to criticism and up ratings that really is the idea of a virtuous president but the antifederalist saw it a totally different way they said and it's like eerie because they predicted this exactly what if you have not a person of virtue what if you have a criminal president yeah it's going to happen with the criminal president is they're going to figure out how to subvert all these checks they turn out to be so weak and the system isn't designed for a criminal president so they say patrick henry in particular and i've quoted this before but i i can't i'm so relevant to what we're talking about right now that the president is going to realize that the checks are so minimal that they'll get bolder and bolder in their power until and this is henry's way of putting it patrick henry the revolutionary hero turned critic and opponent of ratification of the constitution still a loyalist to the united states but against ratification what he said is they won't hesitate to make one bold push for the american throne and crowned himself a monarch that's pretty much an exact quote and what do you have here well where's the check coming from the chief of stichoff which is not a constitutional role saying hey you're not supposed to do that that's where the check is supposed to be it's not working you know and even this check within the president's staff is like sometimes oh i understand what you're doing when it comes to leticia james it's not a real check at all why she's doing it the motivation question is an interesting one christopher whipball wrote this pretty important book about chiefs of staff so she might be trying to proper self up in history i think so very much very much ding ding ding or she's just sloppy as she started to talk about all this and so those two things can be true professor those two things can be true at once you can be self-selfish and sloppy sort of a prerequisite for this administration but again for those who haven't read the vanity fair article i encourage you to read it because it's full of great gossipy stuff cori and i just have to talk about the legal angle but i mean she read the Epstein document she acknowledges trumps names there she said she told trump not to pardon the violent january six terrorists and he ignored her she said there's no evidence that clinton was ever on Epstein's private island which is essentially calling her boss a liar she says the trump has an alcoholics personality she said that jade events was a conspiracy theorist for a decade and he only became pro trump because he's ambitious i mean she's telling a lot of truth here elan busk is an avowed ketamine user russell vote is a right wing absolute zealous she defended us a id saying they do very good work i mean this lady did a lot of truth telling your cori i'm kind of astonished but what got me is that she makes it very clear she doesn't see her job as constraining the president but she sees her job as facilitating his desires whatever petty win man baby wants even if she thinks he goes too far it's her job to give man baby what he wants this is a dumb question but let me ask it anyway in our system cori who's supposed to restrain a president incline towards retribution and madness it's not the advisers it's the do j congress in the courts right my mom always told me there no dumb questions and you know in this case this certainly not a dumb question that's a profound one to ask about that and i think it helps to show you know the the way that all this cash is out this debate between anti-federalists and federalists that there is no design in the constitution for a chief of staff to be constraining a president right of the executive branch and that's what you're seeing from her although she's had claims to have some pushback and this does look like a attempt to cover she's a henchman she's another henchman it's enabling him again and again and she you know she's still there by the way she hasn't been fired or not yet it's it's early but yet we'll see so the constitutional checks that we do have though you know sometimes work and just to kind of review the whole discussion that we've had it includes confirmation by the senate of u.s. attorneys and other principal officers of the united states it includes even informally the blue slip process reflects the idea of a separate branch of government having control over these appointments but there are some offices that are subservient to the president like the chief of staff now here's i think what's profound in your question to open it up please remember what trump is trying to do is to subvert all those checks to undo them on the theory of the so-called unitary executive he wants to make everybody like his chief of staff totally subject to his whims and that includes judges and correct congress and you know what the jury still out on whether or not he's going to succeed so let me wrap this one up because i want to get off as usual but i mean she summarized Donald trump's whole mindset as uh he believes there's nothing he can't do okay and i think that's right he has been spoiled since a child he was not raised by parents who knew how to say no from your work in constitutional democracy professor is that belief itself a constitutional crisis i mean like if he really does believe there's nothing he can't do like that's a fact right would that could that be a constitutional crisis a person's belief and and what mechanisms would exist a correct a president who sees no limits on his power and only his i was thinking about that as i read both about read the account of suzy wiles interview because it really reveals it's an inside look about our worst fears about what's going on you see how of course it's revenge it's motivating things that he's bringing people on board who he thinks of as allies even if they're using ketamine in the case of musk and it shows a kind of pathology that the anti-federalists were worried about and turns out rightly which is that it would not be a crisis it was the belief of just some real estate developer but this is the belief of the president of the united states with this massive amount of power and although we have these supposed checks on that power are they going to hold are they anti-federalists going to be right and when you have somebody who's motivated exactly as patria canry worried about with not only narcissism but with monarchical ambitions exactly they might they might not and that's why absolutely it is a crisis to have somebody in power with these horrific beliefs wow it's so much fun to live through a crisis it'll be taught in law schools for hundred years cori it is time now for some viewer mail if you're ready jd from was constant asks in the october 8th podcast you and fjblzang spoke about how with the exception of trump everyone else who has violated our constitution and laws can be prosecuted my question is by whom thanks for all you do well i think that's a great question jd and you know it goes to the heart of the question of how much control the president has over the department of justice i think the reality is that we won't see prosecutions of trump's allies in this term from the federal government if we do see them it'll likely be because in the next administration there's a reckoning that's correct there are issues like statute of limitations but assuming that they haven't haven't gone out this isn't going to be the president forever that's the idea of limits on the president's term you know it'll expire and so i think john and i have talked about the need for truth commission coming clean about all the crimes that have happened but i don't think that's incompatible and shouldn't be incompatible with the possibility of prosecutions so i think likely that's when we'll see them i would have thought that you know in the case for instance of this is changing topics a little bit but please and local laws are violated say by ice in the whether or often abductions of local people of this violence for instance local prosecutors could bring those cases against federal officials they don't have immunity but i haven't seen a willingness of prosecutors to do that so i think the realistic answer is it's the next administration okay we have another letter this person didn't leave their name but they say love the pod regarding the supreme court hearing on conversion therapy if their argument is that conversion therapy in texas is a free speech issue then cannot abortion providers in states with bans on counseling or referrals for abortion also use this argument to allow counseling and referrals it's a great question and the great question looked into this there's a case for instance called russ versus Sullivan about gag rules and the idea of a gag rule often when you really look at it is that they're not bans they're financial incentives or bans on providers that receive federal funds from giving counseling about abortion and what the court is said is there's a difference between an outright ban and the use of financial funds to limit what groups can or can't be told and so under the russ versus Sullivan principle and the idea there's a difference between government acting in its capability of banning things prohibiting them and incentivizing or disincentivizing them and so that's anyway the court's argument for why there might be a difference here white white that might not be a free speech issue exactly right on the court's going to decide what they want to decide anyway I mean look at these stories we've covered this week professor the mass shootings government misinformation deliberate church state entanglement racial bias in the courts for death penalty cases democratic guardrails weakening or being deliberately dismantled in times of fear in times of grief I want to ask you what gives you hope right now especially as a brown university professor who teaches young people well thanks john you know I didn't want to not do the podcast despite the fact that there is so much going on right now at brown and the aftermath has been really horrible frankly in the sense of fear on the campus and the worry among my students but I wanted to do it partly to talk about the fact and to give testimony about how much perseverance there is even in this horrific time people coming together thinking about what they can do wanting to move on and persevere despite the the horror of this moment so it is a pleasure to speak to you every week and although this has been a painful week you know I thought it was important to talk about that so I am seeing a lot of hope I mean these students and I think you know it's not just true of students of brown it's true all over the country the young people have this resilience to them and you know I think too there's a sense and this is what I'm most encouraged by to try to think about once we recover from the immediate after facts of the shock of this how to fix things long term policy can do a lot to stop horror horror is not something that we have to live with correct I think what what we'll be talking about in the weeks to come professor I want to thank you so much for for this episode I know we ran a little long but I'm glad we went as deep and everything as we could I want to thank Wendy and Baywolf and everyone who helps us put this together I want to thank the viewers you deeply attracted people for your support thanks to everybody for your very kind notes and comments to me about the unspeakable loss of Robin Michelle Reiner I loved them both very much and they were both very good to me and Cory I just want to remind everyone we read your mail on the air so please folks send us your notes if you have questions about constitutional law Cory can give you smart answers and I can give you goofy ones and how can our listeners follow you professor the other six days of the week well we have the oath in the office sub-stack and we'll put links up to the articles that we mention every week and that's growing so check that out the oath in the office sub-stack right on you could also find it under my name of course Cory Brecht Schneider I don't know if you listen to us on Apple leave us a review we have more than 450 five star reviews evidently and we're very high up if you listen to us on Spotify do the same or wherever you get your audio podcasts leave us a review and of course subscribe you can also find us on YouTube and you should subscribe there and most importantly the way that we're growing so rapidly I mean frankly we're at 20% a month we grow which is a massive amount of growth is by people telling people so if you enjoy this podcast tell your friends send it to some friends and it's a pleasure to join you here every week if you want to send in questions as we did today we'll continue to take questions you could write to me at Cory. Brecht Schneider at gmail.com and we'll continue to answer them and I just want to thank you to John for this amazing discussion as always and professor especially at such a dire time I do a show on serious exam progress five nights a week we're also a free podcast my book is out now called Separation of Church and Hate it makes a great gift for the sane Christian in your life or the sane anybody in your life dealing with a crazy right-wing Christian and I want to thank you again professor this was a hard week and thank you for the intelligence and grace that you bring to all these discussions we will see you all next week on the oath in the office