Trump Melts Down as Congress Pushes Back

Welcome once again to the Oath and the Office. I am John Fugelsang. It is a pleasure to have you and I am happier than a garden full of Knicks fans booing the president to welcome the man who is the star of the show, the author of The Oath and the Office, people of Earth. Please welcome. Brown University political science professor Corey Brechneider. Hello sir. Hi John, what a pleasure to speak with you and on a week two in which there are going to be things again to continue to celebrate because there's pushback against this president, there's assertion of congressional power and although we've had a lot of weeks where things were looking bleak this is another one where I'm feeling at least more optimistic than I was. Well I'll never forget the first time we ever met professor over 10 years ago at SiriusXM because that was the day you said to me you're either crooked or you're stupid let's call it quits and wow the coincidence that Donald Trump said those exact words in the latest man-baby meltdown. I just have to apologize for that John it was you know a rough moment. That's okay. No listen you were going through a lot of the questions. We're very hard and listen you were going through a lot of the time. You had multiple indictments at the time and you got booed by a stadium full of Knicks fans so I understand you weren't at your place. I think you were also just refusing to admit that I had a lot of evidence of election fraud. That is correct. I would not acknowledge your evidence because you hadn't produced any and it's so funny how history repeats itself. Same thing. We've got to talk about Meet the Press obviously because I think the most fascinating thing about the Meet the Press tantrum we've heard so much about it's not that it you know I mean it ended the way you'd expect. He didn't end the interview. He rage quit democracy. Kristen Welker asked Trump for evidence that California's election was rigged and he said it's cheating because the ballots are getting counted after election day and I'm watching this like yeah that's that's how counting works. The score changes while you're counting the score you know like like it was like walking out of a restaurant because the waiter's still adding up the bill like I like this bill until you counted the appetizers now it's cracking and professor everyone's talking about the tantrum. The real story is what the president was tantruming about. He wasn't running from Kristen Welker. He was running from the question about election legitimacy and I need to go deep on this with you. Before we even get to that you knew the interview was going poorly over Kristen Welker's questions for the president about what shall we call it the slush fund, the bribery fund, the reparations for terrorists, the anti-weaponization fund. Republicans and Democrats were furious over this and they blocked the immigration bill Trump liked in protest. Todd Blanche came forward and defended the fund before the committee saying okay well we're not going to do it but we're still going to do parts of it. Cory we've talked about this before constitutionally speaking what alarms you the most about a government compensation fund aimed at people who the president personally believes were treated badly by prosecutors for their crimes. Well I think you know the substance of the matter is that Trump is trying to rewrite history and to reward those who engaged in insurrection without question that's the fundamental problem here that it really is an attempt to create a slush fund that'll be used to just support his not just his supporters but those who are willing to commit insurrection in order to destroy our democracy and it's one thing to lie about what happened it's another thing to give the pardons but now to pay the people is a whole other level but there is a you know more wonky explanation of what's wrong here which is that he doesn't have the authority to do so that there is no congressional authorization to create a slush fund to fund insurrection certainly and so you know the complicity of congress up until now of not saying anything has been part of the problem and so starting to see the pushback on behalf of even members of his own party partly because they're worried about their own survival they see that this president is abandoning them in the midterms out of care only for his own revenge and his own personal desires but it is a recognition that not only that this is wrong but that not only that it's a threat to democracy but that he doesn't have the legal authority to do it yeah and again Todd Blanche announced before the House Appropriations subcommittee that the DOJ would not be moving forward with the weaponization fund oh but they still want to have the IRS rigged so Trump and his ghastly children can never be investigated for any crimes in perpetuity I mean it's madness now they're saying that the fund is being abandoned while they're still defending the concept behind it Cory what does this say about how executive power is being understood inside this administration well you know I think that for Trump and this has just been true from the beginning what executive power is is a kind of kingly power so of course he has the power as he often says to do anything that he wants and that includes the ability to fund your secret slash fund you fund your insurrectionists and you know there couldn't be anything further from the truth of how government is supposed to operate under law and you know that's why I think the Attorney General is the president's personal lawyer and sees his job as doing whatever Trump wants but finally the pushback from Congress I think the pushback from the courts the recognition as we talked about last week that the initial deal that led to the creation of this fund with the IRS that all this is illegal has led the Attorney General to start to back off and to publicly say I don't think so now you know as we're gonna get into acting acting acting Attorney General yes yes that's important let's not promote him and you know I think though when you listen to Trump you see in this interview how much he cares about this fund and how emotionally connected he was to it and so you know that that idea that he's being told no the petulant child that he is can't stand it because he wants to be able to not just pardon not just praise and reward his supporters but pay them and and again pay them for insurrection so this is you know attention between somebody who you know although he's an extreme version of a loyalist the acting Attorney General he knows that there's no lawful basis for it yeah and again they finally believe in reparation scurry not for the descendants of slavery right not for the descendants of the indigenous inhabitants of this land but for terrorists who beat up cops for a lie they get reparations and we pay for it now he started to get angry when she was questioning him about this proposal and we're going to play some clips of him getting really angry but historically do presidents tend to react strongly when challenged about efforts that blur the line between public authority and personal grievance I mean I mean the mere existence of this proposal just normalizes the idea that the government exists to reward your friends and punish your enemies you know there have been slush funds before and as listeners know I'm very consumed with Richard Nixon who I wrote a lot about in my book the presidents and the people and certainly he did have a slush fund he was paying clandestine operators to do his bidding illegally including the most famously of course the break in at the Brookings institution less famously but equally important the role of Howard Hunt and breaking into Ellsberg psychiatrist's office in order to get dirt all that was funded by secret funds now here's the difference this is a slush fund of that kind on a much larger basis being used to fund insurrection yeah and being done in public because there's no embarrassment about what's happening that's what makes this so frightening yeah I agree and and now we we move to the meltdown of this because as you know professor every time Donald Trump sees votes being counted after election day he reacts like Dracula seeing a sunrise you know California has counted ballots this way for years Republicans know it and election officials know it and political scientists know it and Donald Trump knows it but he needs his base to think that counting votes is suspicious give a listen to this clip with Kristen Welker and listen to how it goes how they've shifted their narrative now from voter fraud to vote counting fraud here's the first clip listen listen to me listen to me let's talk about tremendous evidence there's nothing but evidence the election was rigged it was a dirty election and it's happening again right now in California right now it's looking look at what's happening California that it's doing well in California it's no they're not they're dropping fast because it's a rigged election let me tell you it's four days and they aren't even close to coming up with you know why they're doing that because they're cheating on the election there's what do you have evidence to support that all I have to do is look all I have to do is listen and I listen to people all I have to do is look hurry that's the perfect summary to his entire approach it is yeah no proof no fact no investigations it's a guy arguing with like a ceiling fan right and that's the tantrum again he threw a fit on television that's not the shocking thing we've seen the meat gobbled and melt down but this is exactly what he did before 2020 he's teaching his supporters that any result he doesn't like is illegitimate right that's what this is well I love that that line all you need to do is look it reminds me of when he asked for the specific number of votes that he needed in Georgia to claim victory you know it's of course the evidence the truth doesn't matter it's all motivated by his goal and it's somebody who's just so immune to the truth you know the technical term is bullshit for not caring at all about what the truth is he's just wanting to get the result and here he is just bullshitting so vigorously in the face of a lack of evidence and she says where's your evidence so I don't need evidence you just have to manufacture the evidence that's what he's saying yeah but uh you know I know where but real confession of what this presidency is about and of course as he's losing it things just go downhill yeah and again this is not about California at all he doesn't care about California he knows how this is going to go they knew that Republicans were going to be leading in some California races on election night but then the mail ballots get counted then the Democrats gain votes it's not because votes are appearing the votes are being counted and this is a distinction that this man professor has spent six years pretending he doesn't understand because he is preparing his supporters to view the counting itself as evidence of cheating this is no longer about illegal immigrants voting because they want to go to a polling place and get caught now the con is not voter fraud it's vote counting fraud that election should stop the moment Republicans are ahead you know like we got to declare the Super Bowl over after the first quarter so here is the meltdown and at the end of this he gets up rather unsteadily disturbing watching him get out of a chair professor and he throws his mic on the ground and steps on it and walks off the set that they have an election and five days later they're nowhere close to picking local officials acknowledge they are slow they're urging no they're crooked they're urging the votes to be counted quick that's how they're crooked just like your crooked your presses crooked and meet the presses crooked to be fair i'm not crooked but really when you play right into their hands and let's continue you're either crooked or you're stupid let's you play right into their hands with this rep you know that these elections are rigged your network knows that they're rigged you know that i won an election in a landslide and i got 94 percent one percent you know why i got that because you have no credibility but you've never presented evidence that it was rigged let's keep talking about i want to talk about taut you have more evidence there's more evidence than ever presented let's talk about your elections in this country we're like a third world country your elections are crooked and you're crooked your election presses crooked and so is abc and cbs and cnn but mr president your one-sided crooked network so let's call it quits because i've had enough thank you darling have a good time mr president and he throws the mic on the ground all the way to wisconsin i've traveled all i know i've traveled all the way to an hour on and off in the rain and i've given you enough time and not you understand there's nothing he hates more than going out in public in the rain kory because that melts the hair um did law school prepare you to talk about stuff like this professor did years of teaching in the ivy league give you the skills to talk about male behavior like this you know a lot of law school teaching and i teach undergrads law as well and use the same techniques as you come up with the most wild hypotheticals you try they're almost like films if you if you do them well and then outrageous situations and the idea of a president who was simultaneously trying to fund insurrectionists and then justifying that insurrection with his old theme that the election was rigged and trying to institute a coup by lying about about evidence and claiming evidence when you know it would just seem too wild it really is jumping the shark that that episode of course where arthur fonzarelli i think he's in hawaii you know jumps over a shark with water skis and wow this is a different level of jumping the shark than we could have ever imagined from happy days it's it's just you know it's another level and yet it keeps happening i think you know to go back to our theme that we've been talking about the payments and the slush fund to try to really institutionalize and that's what was so threatening about it i can't say that enough that it was an attempt to have payment for engaging in insurrection and to have a you know a militia force essentially that civilian militia force is being paid in order to destroy our democracy that i think is what got him going that as she's attacking that and saying what this really is and calling it out and he's getting emotional thinking about his supporters who he had to pardon and who he abandoned for a period of time that then leads him into the justification for why he needed the coup of january 6 which is that he won the election and that that kind of lie then starts spiraling into the discussion of california and the evidence of supposed fraud there so you know it's all intertwined in his mind and when you call it out when you pierce the veil of bullshit with truth that just freaks him out and there you had him melt down in real time and we just heard it it's a great point and i want to point out to our listeners that was the peak of donald trump's week by the way being a petulant man baby who then in the end and you got to see it because the best part i know we're an audio medium but folks try to try to just watch the ending to watch donald trump try to stand up from a chair and almost grab christin welker to steady himself before waddling off the set like the penguin abandoning the gotham super villains meeting deep under gotham going wah wah wah wah i mean it's it's appalling but you know a day later he's getting booed by thousands of people at msg and it made me realize he's going to spend that too i mean he knows what a scene he threw but he's not running to make americans believe him he's running to keep one third of the country angry he's running to keep that one third of the electorate he can count on infuriated and on his side because he's proven in the past one third of the country can sometimes be all you need and i thought the same thing watching him be booed at the national anthem i'm like why would they let him do that why would they let him into msg for a bunch of new york city nba fans susie wild should be fine and then i realized they knew he was going to get booed i will bet you anything professor now the narrative of trump and the minions it won't be the thousands booed him you know what they're going to do it's all going to be for division he's going to spread the narrative that urban nba fans booed our sacred national anthem that's going to be the message that they booed our anthem he is grasping at dog whistles and once again it seems like well this is crazy but there's method in it right i mean there is more strategy to some of this belligerent behavior than might be apparent you know and he'll try all the above i did see him say actually i was well received at madison square garden he tried to pretend there was no booing and there are some versions of the video where you don't hear him of course we're talking about at the nix championship at madison square garden there are some versions of the video where you can't quite hear the booing as loud as it was and so he tried to spin it as that becomes untenable well then he'll just switch he'll use the narrative that he needs to try to look good i don't want to lose sight to just going back to the interview of when he has his meltdown the way he tries to recreate calm is through his sexism he calls her darling the interviewer riston walker and and you know starts in his typical way to just condescend not just to this interviewer but to all women and uh wow it's really is his greatest hits the the support of the insurrection the lying about the election and then the misogyny all attack the intelligence of a woman reporter it's everything it's yeah he's at the state fair doing free bird this is this is what they come for yeah and i just want to say by the way i had to commute by bike through this midtown circus to get to serious xm studios last night the nix are trying to win the nba championship and trump somehow found a way to make the whole evening about donald trump but one other thing i want to ask you about professor is that the house just passed measures rebuking military involvement in iran which nobody saw coming four republicans joined democrats 215 to 208 to vote to pass this measure encouraging the end of the war in iran and separately approved ukraine assistance despite trump's raging opposition kory it's war powers time finally it seems like there's almost a reclaiming of the power of congress over foreign policy we've discussed it so many times the constitution gives congress alone the power to declare war and over decades presidents of both parties have gotten all of this unilateral military authority for themselves how far has the balance shifted what would james madison say about concentrating war making authority in one guy you know i i love that question i love when we can frame what's happening in terms of the founders of this country who really laid out so clearly in our constitution a division of the war power that had been united in england and the british king had the power both to initiate war or british queen the monarch to initiate war and to carry it out and the genius in part of our constitution you can see it right there in article one which says it's congress the law making body that has the power to initiate or declare war and on the other hand article two the president of the united states the power of commander-in-chief now what's happened to that in recent months is just a total disregard not even a recognition of this just a ignoring of it and in particular initiation of war with iran and this was not a defensive war which is an exception to that idea that congress declares war it was a clearly initiated war and you know there's a lot that has to happen and it's related i think to the pushback that we saw in the weaponization fund but you know the the immediate politics before i get to the founders is that republicans are seeing this guy does not care about them he is really doing whatever it takes to advance himself he cares about revenge he doesn't care certainly about the constitution and there's a ripple effect as they push back on the weaponization fund suddenly there are votes too to say hey we have a constitution in this country and to recognize to go back to your point about madison that you know it was just to show you how far we've strayed in the founding there was a debate in washington's cabinet about whether or not washington george washington the first president could even discuss his foreign policy goals and and even mention you know his views about possible war with foreign nations or even what he thought america's foreign policy should be that's how focused on congress the framers were and now we're in a moment where where the explicit power to initiate war is just taken away from congress well now this week we get pushback in two areas one the votes there's also there's motions both in the senate and also in the house to reclaim the war power and to say no you can't continue you can't initiate war without us congress declares war it's it's in some way symbolic but it is a recognition that it is congress that has this power and it's a kind of threat to him to not continue to engage in war without authorization in iran and then the one other thing that you mentioned is the real power of course is tied to the related power to allocate funds and so saying you better you know you we are funding the ukranians regardless of what you think that's another really important non symbolic assertion of congressional power i mean it's a symbolic vote but symbols can matter in yes it's actually i mean symbolic votes can evolve into meaningful institutional resistance and you know i think it seems like we've reached a point where so many americans just assume foreign policy belongs exclusively to the president because we haven't legally declared war since the year 1941 and this is both presidents we grew up watching bill clinton bomb other countries when he felt like it too i think a lot of americans don't realize how unusual it is for congress to publicly challenge a u.s president on military matters professor how how historically significant was this moment he was furious at these four republicans but i thought they were acting like what's that word they used to say conservatives yeah that's you know i mean this supposedly concerned with a meaning of being a conservative in this country since the reagan administration at least has been that you care about the constitution's text well what clearer example of congressional power than the war power which is right there and clean words given to declare war is given to congress and yet nobody's been talking about it and i want to come back to your point that symbols matter because they absolutely do in this case think about the absence of congress having done what it just did speaking up against the usurpation of its war power you know what that means is complicity when you say nothing it's essentially just agreeing to the president's ability to initiate war so it's the pulling back on the failure to speak the pulling back on the complicity that we've had up until now in the acquiescence and really the elite and let's call it what it is the illegal war by the president it's not by the way too that you know somehow it's legal because congress didn't say anything what was happening was congress has to initiate the war without that you know especially after the 30 or 60 day period that the war powers act passed to clarify the war making powers gives a president to engage in in action short of war but after that 60 days and even before that if it's a war not just an action military action it's illegal and so congress being quiet isn't agreeing to it it doesn't have that ability it's complicit in the violation of the law and now finally congress is saying hey there's a law here there's a constitution and that is you know we've been calling it symbolic but it's obviously more than that it's the assertion of the fundamental framework of our government well this ukraine vote was quite a bit more substantive this was very against trump's wishes now again friends for those who don't remember the united states once was part of a treaty to get ukraine to give up their nukes and give them to russia because ukraine once had the largest amount of nuclear stockpile of any european nation and of course when the curtain came down we signed the budapest memorandum where the us the uk and russia all signed a deal saying that we will always protect ukraine if they're ever invaded in exchange for them giving up their nukes of course russia did and if there's one thing we know about right wing christian nationalists that the indians taught us they love breaking their own treaties so trump is furious that we're continuing to honor our agreement to fund our ally uh 18 republicans voted to pass this it was a 226 195 vote it gives eight billion in loans to ukraine and nato military programs a billion dollars to other funds for for ukraine does the power of the purse still remain congress's strongest constitutional weapon you know i think they're tied together and i think that's the reason i was very eager to talk about these two stories there's one story that the the reassertion of the war power and the real use of the allocation power of congress because you know the framers designed not just you know individual powers but a system as a whole that was meant to work together and how to make it clear that congress really had control over war it wasn't just meant to be symbolic they have the the requirement of funding any war and this is a kind of implicit recognition that you know look if we can dictate that this money has to be spent and implied in that is the threat that if you ignore us on the war powers if you continue to go to war without our permission we can withdraw the funds and that's by design that really is a james madison technique that's there from the beginning so i think these two stories you know it's not a coincidence that they're happening together and it's really important that we talk about them together because what we're doing is you know these powers are rusty we've been letting them lay vacant and and they don't get used well now they're being used the power to initiate a war or to refuse to initiate it and the power to fund or not fund certain you know foreign policy including wars if congress makes that decision now you know we're so used to just deferring to a president and in the reassertion of congressional power we're starting to get the the law back i didn't want to say one other thing john because this is a less obvious point but you know when you're mentioning the idea that trump is dishonoring the prior agreement to fund ukraine for trump you know he is the state he is the government and the idea that the nation would have prior agreements i actually think that's beyond his comprehension and yet the idea that we are one nation led under the law it requires the idea that no it doesn't matter who's occupying the office at the particular moment what the bindings of agreements transfers through administrations and when you think that you are the law when you are the dictator it's just impossible to understand that and it's another another deep failing of his well and also these guys want to invade cuba kory we know it they're starving the people of cuba like the the media blockout on the human rights catastrophe that's happening in cuba because they think it should be our colony and marco rubio should be visceroi this is all still going on so like this is what i think when i see this vote because tell me if i'm wrong here if congress keeps on reclaiming authority over military decisions this could be one of the most significant constitutional developments of this whole bloody period i mean what would genuine congressional oversight of war powers actually look like i can't see this congress ever being that strong against this man i mean you know just to before we get into the politics of it there is no legal authority of the president of the united states to go in and to seize cuba and in the same way there wasn't a legal authority to go in and seize the president of venezuela now you know if congress voted to do so we could talk about the justice or injustice the pragmatism or lack thereof of doing it but at least that would give it a legal authority there is none here and yet this president you know has that aim whether or not he's going to view these two votes that we're talking about as a possible pushback on his own power i'm not sure i i'm not sure that it will i mean rubio is so despite having been a senator himself so so intent on it they might again disregard it and i i would hope that the congress would start to see its obligation this isn't new by the way i talked about nixon and you know i'll just mention some nixon parallels leaves i can't get enough nixon kissenger and nixon of course were involved in the in the destruction of a democratic government in chili i don't know that political sunday's who study latin america disagree about the extent to which this was a us coup or whether or not it was you know some combination but we know for a fact that nixon and kissinger were involved and by kissinger's own you know acknowledgement in destroying a democratic government so there's a long history of that but the whole point of the war powers act was not just in regard to chili and the coup of pinnish but also of course in vietnam and the illegal actions beyond vietnam and cambodian laos the congress said no more that was at having to the end of nixon's administration over his veto and what did they do they passed the war powers act that was a reass meant to be a reassertion of congressional power now for a variety of reasons that's just been you know pushed to the side but what we need now that a president is engaged in initiating war in iran and wanting to refuse to follow congress and supporting ukraine refusing to honor our agreements is a reassertion of that idea that it's congress not the president that declares war so what i'm hopeful is in the same way that nixon's abuses led to reform that what we're talking about right now well not in this congress but in the next congress lead to a real reassertion of the war powers and even if we won't see it in the next few months i'm assuming that the democrats will retake the house at least i'm hoping that the moment has to be seized and and as you said too the democratic party is not focused on the reassertion of the congressional war power but it is long overdue that we do exactly that okay we got to take a break or wendy's gonna throw me in podcast jail uh professor please sit tight we'll be back in just a second we have a lot to cover including uh oh his name was blanche let's talk about uh about twisted tide when we return 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 101 the acclaimed podcast from new hampshire public radio civics 101 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 hannah mccarthy and nick capote civics 101 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 101 wherever you get your podcasts and tell them the oath in the office sent you hey it's kory if you're like me you may need to take a break from the 24 hour news cycle to recharge and renew your mind which is why i recommend listening to how to with mike peska the long-standing advice show and ambi nominated best personal growth podcast back for a new season and with a new host how to with mike peska finds answers to your most pressing questions i'm a fan of mike and you might recognize him from being a recent guest on the oath in the office or from his award-winning reporting or from his role as host of the longest running daily news podcast the gist each episode of how to follows the curiosity of a listener invited guest to tackle a real problem with help from world-class experts who actually know what they're talking about think of it as eavesdropping on someone else's therapy session without the copay or awkward silence you've got questions they find the answers follow how to with mike peska on apple podcast spotify or wherever you get your podcasts and tell them i sent you welcome back to the oath and the office i'm john fugelsang along with professor kory brechneider kory two controversial personnel decisions are now generating just a bit of scrutiny the nomination of donald trump's personal attorney todd blanche who defended him in his fraud cases in new york because he's a criminal defense attorney and he lost the case this is todd blanche who was dispatched to go to gelane maxwell's cell and when he walked out this child rapist had a cushy deal to go to a very nice club fed prison that child rapist normally don't get to go to so this is where we're at todd blanche is dirtier than donald trump's hamper but there's also the appointment of william pulty as acting director of national intelligence while he's still running the federal housing finance agency this is creepy let's start with the fact that the senate has to approve this the framers really placed enormous importance on senate confirmation and it feels like that's pretty relevant right now right hamilton said appointments are one of the most important checks on presidential power was he right absolutely you know i think we've been talking about the framers and their design and how although we've been wondering where these supposed checks and balances are they're at least starting to emerge a little bit and i think one of the most powerful is the requirement that principal officers including certainly the attorney general of the united states face senate confirmation and what that means certainly in contemporary times is a hearing questions and in some instances and this is you know what i want to get to a requirement agreements that are made that will have consequences later on so one of the most important confirmation hearings in the united states history was the confirmation of elliot richardson and when elliot richardson was confirmed as attorney general before the senate voted to confirm them they asked him a very specific question will you pledge here to promise not to fire the person investigating richard nixon archibald cox promise not to fire him and when richardson said yes even though he was a party loyalist he saw himself not as a todd blanche but it's somebody who really cared about the party cared about the future of the party cared about nixon when he was told fire cox fired the nixon said fire the person looking into my wrongdoing the president protocol said wasn't supposed to do it himself he needed the attorney general to do it and the law arguably and richardson said no i can't why because i promised him my confirmation hearing and although richardson by the way is often seen as a kind of hero and it was a moment of virtue it really was the senators who pressed him to say you know to pledge publicly that he wouldn't do it it was just too embarrassing and so that starts to show you these hearings matter both in hopefully they'll just reject the nominee because no way is he qualified and in the same way that harry at myers of bushes personal lawyer wasn't confirmed to be a supreme court justice this guy should be confirmed to be attorney general by a mile but at minimum if even any principled republican is going to claim to vote for them they shouldn't they've got to really get these pledges on the table to what number one not engage in the kind of prosecution of enemies that's been going on yeah exactly right i have to bring it back to the doj position again because we always hear the department of justice must be independent right i mean god forbid you know bill clinton talks to someone on a tarmac but constitutionally speaking what does it actually mean that the justice department must be independent like i think there's republican senators who will still be conservative enough not obedient enough that they'll be appalled i remember i brought it up to you last night on serious xm the outrage of republicans over the harry at myers nomination 22 years ago there's going to be republicans appalled by the fact that this guy's trying to put his own criminal defense lawyer from his own shady crimes as our nation's top cop when this guy's already proven to be quite amenable to above others child rapists who get preferential treatment do you think that congress is this senate is still craven enough this man can pass that's what i'm hoping is going to start to play out that the recognition that first of all remember you know as as hard as it's been for this administration to recruit good people and it might be hard to recruit a decent attorney general having his personal lawyer serve as attorney general is really an insult to the entire system of government the idea what is an independent department of justice supposed to be first of all i'm going to go back to the origin of the department of justice in the 19th century during the grant administration okay what was it created for to enforce civil rights to enforce the rights of the the most vulnerable and what is it being used for what is the opposite of that to prosecute political opponents and that's how trump views the department of justice the same as a kind of roi cohen his personal lawyer for a long time who he you know he's always saying get me my my new roi cohen that's what he wants somebody who's just totally couldn't care less about the law totally corrupt vicious cone of course right cone was the lawyer for macarthur going after that's right the red scare the alleged communist and the government that's what arguably donald donald trump's sith master and trump was his evil sith padawan go on so what is independence it's the opposite of that it's saying no it's saying what we often did see actually in the first trump administration that the job of the attorney general is the chief law enforcement officer not to serve the personal interests of the president and so as that idea comes out and democrats will hammer at it i just have to think that republicans are going to see no way can the guy who's the opposite of that the president's personal lawyer be this person and as you said last night and as i mentioned before today harry and meyers is sort of the perfect example by the way harry and meyers i thought it would have been a much better supreme court joseph's or attorney general than sam allito well or then right wasn't wasn't no but wasn't harry and meyers the one when he had to pull back on her we got elito like like yeah that's an interesting point remember when they had to pull back on you know oh god who was the one who smoked weed and we got kennedy out of that one back in the 80s my man was at ginsburg ginsburg thank you so much law professor cori what questions should senators ask todd blanche regarding prosecutorial independence what would you most want to hear them ask this guy on camera yeah i think you know we've got to move beyond the abstractions to the personal and to say you know do you believe that it is the job of the attorney general if asked to prosecute the president's personal enemies to say no and then i think they've got to ask him about the specific cases of leticia james and james comey and how can the government be involved in what are clearly political prosecutions and this has to be a moment you know whenever you have the focus of the american public to really embarrass the department of justice and the attorney general for allowing this to happen and for acting as not just the president i should say personal lawyer doesn't quite capture it because the personal lawyer is still bound by the law that's the obligation of any lawyer this guy is acting as a thug and the department of justice is acting as a criminal that's why he's hired and that's what they've got to bring out so so do you not agree that this is the obligation of the department of justice to stand up to a president that would use you as his personal tool of revenge you know the attorney general serves the constitution not the president personally we keep having to teach people this kory i want to move off of this but why is that distinction so critical here because when you have you know the the truth is at the same time that we have this idea that we've been talking about all episode of dividing the powers between the congress the judiciary and the president that the modern presidency is just so powerful more than two million people and when you have a president intent on crime intent on dictatorship it turns out that these other branches can be can be crushed and one of the places where the vulnerability is most clear is in the office of the attorney general i am gonna go back and do a little more history the reason why the term unitary executive got its name you know there's a lot of law with it but there is a factual basis for it which is the framers disagreed about whether or not we should have an independently elected attorney general leticia james so i just mentioned is in new york and was at the founding the attorney general of new york was independently elected and the framers rejected that they said you know we can trust a president a president will be a person of virtue and so we'll put the attorney general not as an independently elected person but within the president's cabinet what a mistake that turned out to be man how much should we have been saved if they didn't do that well so this this whole appointment of bill pulty as acting director of national intelligence is a whole different issue because again he's replacing talsy gabard who resigned just recently this guy is still the director of the federal housing finance agency he is a rabidly obedient trump henchman and he will hold both jobs at once so because this guy is only the acting d and i he's not going to have to go before the senator confirmation but i think a lot of senators including republicans are furious about this how weird and disturbing is it when one guy simultaneously holds multiple powerful positions kory well it's a symbol of how dysfunctional our government has become because what is it about there are very few people who are going to pass the trump loyalty test and this is one of them and having you know done an okay job of loyalty not of doing the actual job in one position why not put them in another now what's scary here is the d and i is created as a cabinet position precisely out of the traditional worry that foreign policy you know is not independent of congress at a minimum there has to be oversight and so requiring as was required by legislation the 1980s a confirmation of the person who is really going to be in charge of the entire intelligence apparatus is a way for congress to reassert its control now here's the problem you mentioned and i just want to lay out what this means the idea that he's not going to be subject to confirmation because he's not being appointed as the true d and i is being appointed as a interim on an interim basis and that what that does is it avoids confirmation and that is a real loophole in in what we're talking about yeah i mean this is how they are bypassing constitutional scrutiny this is how they're getting around it i mean the senate confirmation feels increasingly less meaningful as these presidents mainly trump and others have done it rely on the acting officials what questions would you want congress asking this guy polty if he had to appear before confirmation hearing because again this guy has no experience in security agencies at all he's here because as director of federal housing finance agency he uses his access to mortgage documents to harass people donald trump doesn't like this is the guy that donald trump used to harass leticia james to harass lisa cook to harass adam schiff so now he's taking this henchman who only uses government jobs to go after people at the behest of the executive and he's going to give this guy access to all the apparatus of national security to go after his enemies right i mean that's exactly the reason why you know the senate confirmation was required for for the d and i and now trump is avoiding that by using this i said interim or acting appointing him on an acting basis but there still is a possibility of hearings you know the president's principal officers can be compelled to testify before congress and oversight hearings and so even though we won't get the questions that i'm about to suggest as a matter of confirmation we might get them as a matter of oversight and yeah i think the same questions that i was suggesting blanche has to be asked you know did you think it was appropriate to use your position in order to enable the president's political prosecutions and handing over information that was really used to go after the president's political opponents that's got to be exhibit number one but i think too the incompetence of in the same way that the lack of independence of todd blanche the incompetence of this individual has to be brought out you know what gives you the ability to manage the entire foreign policy apparatus of the united states you know when it comes to intelligence at least what qualifications what job have you done and so i think it's partly you know about his past violations of ethics and law but it also is going to be about his incompetence and totally the inappropriateness of the appointment i think too they might use these kind of hearings too to point out the fact that you know why are you acting in a role that's supposed to be subject to confirmation why is this being abused because you could obviously not withstand a confirmation hearing so they can use it as a kind of they can find a way the congress to create a kind of proxy confirmation hearing even even if this acting position is what's being used can i ask you about what's going on at 60 minutes kori because this has been quite fascinating scott pelly just was recorded in a meeting with the program's new e p and pointed out that this guy had very slender qualifications for the job and he said that barry weiss is here to murder 60 minutes which i think a lot of people would agree with and they're very proud to say hey uh broadcast is an ice cube it's melting this is after anderson cooper steps down from the show you know and the first amendment protects freedom of the press so they fired him anyway they fired him for coming out and saying all this and you've talked all the time about how yeah the press has got total protection but we're in the age of corporate media and we're now in the age of stochastic self-censorship the constitution doesn't guarantee courageous journalism why is that distinction important you know the founders expected conflict between government officials and journalists right that was always part of the plan yeah you know the government has found a way to both pressure through the fcc and threatening cbs's license to have a kind of classical government censorship without being subject to the obvious first amendment lawsuits that would come from the government shutting down speech in a more direct way so scott pelly can't bring a first amendment claim against cbs you know maybe he could try to figure out how to bring a claim against the fcc head who has just repeatedly threatened the license of cbs and i do think that is a kind of first amendment violation but he certainly can't bring it against cbs itself you and i had a robust discussion with mike peska independent journalist and podcaster in a previous episode i'd urge people to go back and listen to it it was a great discussion slash debate where we were really pushing the idea that this is not normal journalism and peska was a little more sympathetic to barry weiss we should have him back because i just don't see how you could be now we know this from pelly we didn't know it before but now we know it we suspected it now we know it directly she was doing things like saying in the story that he did about the murder in minnesota correct me if i'm wrong john scott pelly has said that she wanted the editors to show the protesters as looking more menacing and violent and that it was very important to her that cbs's narrative was trump's narrative that this woman was trying to run a guy over in her car when she was actually turning the wheels away from him to get away from so that's right like she was trying to get away and i think the car was aimed away she wanted to claim the opposite so in other words she was just manipulating the basic facts of the story in order to barry weiss and urging edits that would really just make ice look good and hide from the fact that there was essentially a murder committed here and you know what better evidence do you need for the fact and let's just say it plainly that barry weiss is a magus supporter not some independent journalist and that she is crushing the you know most important this isn't just any news show of course 60 minutes the most important journalistic television show probably in history and is being destroyed and thankfully we're at least learning the truth of what's going on there because of scott pelley telling us after his firing yeah i mean it's it's just crazy we are not seeing anticipatory obedience this is just obedience and it's gonna be interesting seeing how it plays out we have to take a break back in just a moment for the final act and we still have a lot to cover john bolton versus trump professor who am i supposed to root against here this is the oath in the office don't go away welcome back to the oath in the office i'm jad fugl said kory man we are just packed with stories this week let's talk about john bolton the sentence i have never wanted to say former national security advisor under donald trump a man who waited his entire life to bomb aran and now he doesn't get to be part of the party john bolton has reached an agreement with the doj to plead guilty for a terrible crime a terrible crime that donald trump's doj is very upset about for those who don't know if you want to know the crime that donald trump has taken him down john bolton for committing he pled guilty to retaining classified documents in a private diary in one count he's going to face up to 60 months in jail in a fine of 2.25 million one of several prominent trump foes indicted already along with james call me in new york's ag leticia james kory one of the most difficult constitutional questions is distinguishing legitimate prosecution from politically motivated bullshit how should citizens evaluate that distinction especially in this case you know i do think just to start off that there is a first of all good point about the fact that the president of the united states was under indictment for under the espionage act for keeping secret files in mar a lago in the his bathroom in other places and yet it's like this guy's being the apocrypt is like he's attacking people for committing adultery at this point you know but i have to having said that you know and i'm going to go on to raise some complicated issues in the bolton case it is different than the others you know if you're a prosecutor involved in the prosecution of james call me for saying that you want to 86 the president of the united states and claiming this is some sort of threat we're going after leticia james for some you know innocuous form that she filled out in a mortgage application there really is a question about whether or not you should be disbarred i just think that anybody involved putting their name on documents involved in any way those are political prosecutions full stop they are part of the destruction of democracy that this president is attempting the bolton case is different it began first of all during the biden administration it is more complicated there's a lot of experts who have looked at this who think that he is guilty of a serious crime but now here's the button where it gets complicated what do you do when there is a crime committed but the motivation for pursuing it you know at the behest of a president whose intent on revenge you know how do you understand that and i guess my thought is that it's tainted that the president's motivation of political revenge taints what might otherwise be a legitimate prosecution now that's a more complicated sentence than in the leticia james case or in the james call me case but i do think that's what's going on here that is both a legitimate prosecution no i don't think that the prosecutors involved here are you know so over their skis that they should be disbarred but i also think that the president's revenge campaign and his statements about bolton tainted and make it illegitimate and you know he's probably guilty that's how he's gotten out of it it also does show by the way that without full convictions and going to trial that the chilling effect is very real of what's going on here and the fact that this person with enormous resources pleads guilty you know it shows you you don't need a full conviction in order to have a chilling effect of this president yeah and again a prosecution can be legally valid it can also still raise concerns about selective enforcement and it can be insanely corruptly hypocritical while still being legally valid that's what we're living through here right yeah it's a nice way to put it you know it's not as simple as did he do it or not i think again it's it's very different than the other cases there is evidence that he broke the law and you know the crimes are not they have a seriousness to the national security matters but yet when you have a president of the united states who's just on this revenge tour really all of it all of the actions of the department of justice become suspect and especially this one yeah i just want to ask you one last question about this are there lessons americans should be learning from other democracies where legal systems turned into corrupt little tools of political retaliation look you know the definition of a system of law is that you don't just have a president going after their political opponents and if you look at really any dictatorship you know i mentioned pinnishay before or the related argentinian military dictatorship what happened to political opponents they were disappeared they were killed they were imprisoned and what defined those moments was a destruction of the rule of law and an instance in which the authorities or the dictator simply imprisoned their political opponents trump has made it so clear that that's what he cares about nixon himself was sympathetic in fact you know his ally kissinger couldn't understand why there were complaints in the press when there was a military overthrow of an elected leader iende in chili and when you listen to the president you know he admires dictators so that that is what he's trying to do and if you want to know why we have a podcast called the oath in the office and why democracy matters and a president taking an oath to respect the law is to avoid being disappeared and you know any political opponent in trump's world would be subject to the same treatment as komi and james i have to just say a sentence about the komi indictments because going after komi for you know the most innocuous statement 86 you know which means get rid of not kill or threaten in any physical way you know if you can bring a prosecution like that you could prosecute anyone exactly prosecute comedians you can prosecute any kind of satire which brings me to i want to end the show on a positive note cori and donald trump lost another massive court case this week us district judge leo sarokin struck down trumps 100 000 fee that he invented to impose on h1b visas in the case of california versus mark wane mullen trump signed proclamation 10973 it adds this 100 grand payment requirement for h1b petitions this is the creepiest thing i've ever heard of before in other words it's a fast track for immigrants who can afford a bribe and you know the plaintiffs have said we're going to have so much harm from this new payment system it's going to be harder to hire teachers and you know it's going to exacerbate teacher shortages and it's going to impact our ability to staff public colleges and universities it's going to hurt academic research so the judge ruled that this hundred thousand dollar visa fee was an unlawful tax because congress never authorized it is this fundamentally an immigration case or is this a constitutional separation of powers case well i think the president wanted to say and this is a great note to end on because it really does encapsulate the pushback that we've talked about and we ended by talking about the threat of dictatorship and political prosecutions but we began by talking about the optimistic moment in which congress is asserting itself and that's what this case really shows it brings us back to one of my favorite phrases that we've all heard from grade school on which is no taxation without representation the very basis for the american revolution was to say parliament can't engage in so-called virtual representation where it says it knows best what it is in our interest if we're going to be taxed we have to be represented that's right and that's what this case is about because the president's claiming all the matters of immigration i can do whatever i want and this judge says no this is a tax and any tax whether it's a tariff by the way and this comes on the heel of the tariffs case it's the same point there or an international tariff or a tax on visa or uh visas or a domestic tax it's congress that does that's what the american revolution was about and that's what was instituted in our constitution no taxation without representation we need our representative body the congress to enact a tax and this judge said so clearly you're not a dictator so we talked about the danger of dictatorship and this is the pushback against it i've got as a final note mentioned my dear colleague gordon wood who passed away this week you know he really talked about the radicalism of the american revolution which is partly about no taxation without representation but it's also about the idea that in this country we all see ourselves as equals that we're not born into privilege and this president is really trying to undermine that and what gordon would taught in his most famous book the radicalism of the american revolution was this idea that no taxation without representation encapsulated a much bigger idea which is that americans see each other as equals he talked about the idea of a creedal constitution one based in an idea of equality and that you know that's very different than one based on birth and that's what we're all fighting for and so you know tribute to my dear colleague who's 92 years old somebody who really inspired me to talk about the american founding he is universally regarded not just you know often they say you know obituaries a major figure or something in the american founding you know he's being referred to correctly as the most important historian of the american founding and he really was and so i'm pleased to end on that note and like to think that he would have you know love this idea of the pushback of the american people against this wannabe dictator on behalf of the true founders of the united states including one person that of course he admired james madison we've talked a lot about absolutely and ken berns had a lovely obituary for him as well and thank you for mentioning mr wood professor and thank you for another exciting addition i feel much smarter and i i feel less bleak about facing what used to be america kory what's the best way for our listeners to follow you and keep up with your brilliance subscribe you know wherever you get your podcasts if you're listening to us the first time welcome hit that subscribe button leave a review tell a friend you can find us also on the oath in the office substack we're also on youtube if you want to watch us not just listen to us and thanks so much this podcast has really taken off we started with zero we're now really every week in the top four of apple podcasts each episode and it's growing and growing and we're becoming you know one of the top podcasts for information about politics about the law about government and certainly about the threat to this democracy well thank you professor i want to thank our listeners as well and i want to thank you and wendy and bay wolf and everyone who puts the whole show together y'all can follow me on serious xm progress five nights a week as well as my sub stack and my book is called separation of church and hate and kory i just want to say how amazing it was this week to to see donald trump get to ruin an nba finals game before he goes to ruin the world cup which will set the stage for him to ruin the summer olympics we live in amazing times thank you so much professor for keeping us smart and keeping us sane thank you john what a pleasure we'll see you guys next week on the oath and the office