Trump's Illegal Attack on Venezuela: Congress Must Step In + Jack Smith’s Testimony

Welcome to the Oath in the Office podcast coming to you live from America where the entire world now knows our president has had at least three dementia tests that he can remember. I'm John Fugel saying joined as always by the star of the Oath in the Office podcast. Professor and author of the book The Oath in the Office, a guide to the Constitution for future presidents, Corey Brecht Schneider, Corey, sorry it's a slow news week. Welcome back. Yeah. Wow. I mean, you know, when we started this show, I was pretty confident that every week we would have some constitutional crisis to talk about, but you know, could have been the odds were against it, but it could have been that. You know, humble, also constitutional challenges. They're not all crises, right? Some of our just constitutional challenges that more competent generations could deal with. I mean, I don't even know where to begin. Friday night, after I got off the air on serious XM, Donald Trump finally illegally invaded Venezuela, while we were asleep, which I thought was rude professor. If you're going to start a war, have the decency to do it during normal business hours like a proper sociopath. Monday, this week in New York, Maduro, pled not guilty to charges of narco terrorism, conspiracy, and other alleged crimes on his first day in US federal court, turns out the indictment against him and his wife is a little flimsy, rests very heavily on a meeting his wife had before he was ever president, but Donald Trump is treating it as a win. He began bragging about this on his website that he bombed Venezuela, kidnapped the president, float him out of the country. Corey, I have no doubt this will turn out every bit as smoothly as Libya and Iraq and Afghanistan and Haiti and Honduras. And we have to say this again, Maduro is a bad guy. He's corrupt, he's brutal, he's violent, he's very anti-democratic. But I mean, I think the problem is Trump didn't overthrow a dictator. He may have officially become one. The administration insists the raid was not an act of war, but a law enforcement action to apprehend an indicted criminal, which is what they should have said the Afghanistan war was. I mean, I think Molly I've been said, Korea was a war they called a police action, and war on terror was a police action they called a war. But under the US Constitution, let's just go to the basics. I know we haven't legally declared war in this country since 1941. Who has the power to initiate war and how narrow are the exceptions? What is Article 1 actually require? And what powers is Article 2 not give a president? I was writing down my questions watching the coverage all weekend for you. Well, I think this is always a good thing to do. We'll come back, of course, to the case at hand. And what I think is an egregious violation of international law and domestic law. Let's start with the basics. As you said, our Constitution does something that the British system of government didn't do. They combined the war powers of carrying out the war, acting as commander-in-chief, and also deciding whether or not to initiate a war in the crown, in the monarch. And the idea of the American framing founding was, this is too dangerous that we really want to separate out the executive decisions about how to carry a war out, the commander-in-chief role, from the decision of whether or not to go to war. And the framers really knew that creating that division and just to point out what they did to answer your question, they, Article 2, creates the president and limits it, and it gives the war, the commander-in-chief power, to the president. Article 1 gives the power to declare or initiate another word, initiate war to Congress. And they did that for a reason, which is that they wanted Congress to be careful. They knew that the decision to go to war wasn't just a, you know, separate, small foreign policy issue. It really would consume the nation. And so they wanted, they'd rather be slow, deliberate in that decision, and that's why they gave it to the Congress, not to the president. Now, you know, it is right to say that we haven't formally declared war in quite some time, but we have had resolutions. And to my mind, there really isn't a difference between declaring war and having resolutions. So we had an attempt to reclaim the war power and the war powers act at the end of the Nixon administration, which created rules for certain actions that could be within 30 or 60 days if they were military or even police actions, but required eventually an act by Congress. We had Congress Bush, HW Bush, didn't want to, in a quaint invasion, go to Congress, but eventually was persuaded to do so. And the Iraq War Congress deliberated, and there was a vote. So, you know, the counter example to all of this, which is what we'll get into, is Panama, which was a police action, the way that HW Bush put it. But I think that that really doesn't fit what's going on here. I think this is a blatant violation of that requirement that Congress initiate war. And there's plenty of blame to go around as we'll get into later. Part of the blame is Congress refusing to take the power for itself. Nobody's going to give you that power. The president's always want to ignore Congress. And so part of the fault here is the U.S. Congress. Sure. Well, I mean, I think the first casualty in American war, it's the 21st century, has been the English language and the way that the language has been abused to soften up a lot of illegal actions. And we talked about this a lot under the Bush presidency. And by Gali, I talked about it a lot under the Obama presidency as well. How how imminent threat means if we think this 12-year-old boy might grow up to be a terrorist, he's an imminent threat, and we can kill him. We've seen lots of such abuses. So let me ask some really dumb questions here. Can a president lawfully invade a sovereign nation without any authorization from Congress, simply by calling it a police action? Because this seems to be more of a rhetorical category than a legal category. Corey, tell me if I'm wrong. Well, I'm going to eventually agree with you. I think we're in need of agreement about the fact that this isn't a legal war. But there is an argument that I think we've got to put on the table, and we'll consider it, which is that in the Panama case, the argument was that Noriega was unlawful dictator. He'd come to power through coup. And this wasn't a war. It was a police action to remove him and that it was done with the cooperation of the Panamanian people. And in fact, the new leader of Panama, rightful leader of Panama, was sworn in the same night that they removed Noriega. So there is precedent, and there is a case, 11th Circuit Federal Court of Appeals, did decide that not that this was a legal war, but they gestured towards that idea by saying that pointing out that Noriega had declared war on the United States. And so defensive wars are not aggressive wars, and there isn't a need for the president to have the consent of Congress. Right. And so that's one difference. And ultimately, they rejected the idea that this was legitimate sovereign of Panama. So they rejected the sovereign immunity arguments. Oh, I'm so glad the language worked out in their favor that way. So I think that probably wasn't a legal action too, but there are many differences here for one thing there wasn't that kind of cooperation. I don't think by the way, it was a police action, although I've given you a route to saying how it would be. And like Venezuela, they lied about the reasons. Like Venezuela, they lied about the reasons too. That's very important, I think, but go on. Yeah. I mean, in the Venezuelan case, you heard Trump say that he met with oil executives, and didn't meet with Congress. And that's who he was collaborating with. And so his motivation is pretty transparent. Prumps the only member of the Republican Party telling the truth about this invasion right now, professor. Sorry, glad. That actually is the theme. You know, during the travel ban case, he often said, oh, no, it is a Muslim ban. Or I preferred the first version of it, which was, you know, clearly what I was trying to do, a complete total shutdown of Muslim immigration into the United States. And here he's telling us, it's about the oil. So, you know, he's got his legal rationale. And you get the sense that in the White House, everybody's like, okay, don't say the real reason. And then there he comes out and says the real reason. So, so that, you know, this is either about, I think the other things it could be about, which is more frightening is what sometimes being referred to as the Trump doctrine, the desire to control and dominate Latin America to eventually replace in Cuba, the regime there. Right. Greenland, we were talking about, well, hey, hey, let, let, let, let, we'll, we'll, we'll, we'll, we'll, we'll get to that. Can I, can I bring it back to Panama for a second? Because I have more dumb questions here again, because I, I, I'm just the, the, the, the MOOC copying off your paper on the SAT day, Corey, but I, I still don't see how labeling changes constitutional reality. I mean, If what happened in Panama, which they're using as a precedent, wasn't actually a constitutional action at the time, does something become lawful through repetition? I mean, is this a precedent or is this, I said it on serious activity last night? This feels like precedent laundering. The fact that it's been done before and that it was done by President H.W. Bush doesn't mean that it was lawful then. And I think there's a very good argument to suggest that it wasn't. There are these differences. I am possibly compelled by the idea that because Noriega had declared war on the United States, that this was a different category that was a stupid thing to do. He, I think absent that, it would have been much harder to make the case. But, you know, here, there's no such thing. Medora didn't declare war on the United States. It was an aggressive war. And to, let me come back to basics. Look, Congress has the power, the sole power to initiate war. And this is, you know, going and bombing a foreign country sending teams in to remove the leader, that is an aggressive act of war. And there is no laundering it by claiming it's a police action because that's not the motivation. I don't think it would excuse it if it was, you know, the details of the Panama case aside and the difficulties there. So, even if that, I don't think that was a legal war, but if, even if it was, it doesn't, the precedent doesn't apply here. I want to tell everyone if you get a chance to rent the Academy Award winner for outstanding documentary, 1993, the Panama deception, which explains what this was all about. Jimmy Carter was a little too Christian to these people. And so the Christian nationalists tried to take the Jesus out of that deal. Cory, what, here's another one, because the people saying, oh, you get it's a war. And then the right wing saying, oh, no, it's the shortest war in history. It's already over. And if you believe that, I have a used mission accomplished banner. I want to sell because this White House has no idea how to manage the post-Moduro Venezuela. They say we're going to run it. Does that mean Steven Miller? Because things are going so well here. I mean, I mean, they really thought that military action was done when George Bush just a little photo up on the aircraft carrier, Cory. This military action may not be done. God help us if there's a violent resistance like we saw in Iraq that led to more deaths in the initial invasion. But what legal standard determines if something's a war versus a limited police action? Is it boots on the ground? Is it regime change? Is it occupation? Or is it theft of natural resources, which we have to talk about as well? Well, I put it at the duration. I put it about whether or not it's an active defense, in which case the president might have the power to do it. But an active aggressive war is an unprovoked use of force against the foreign power that doesn't want it. Now again, and we can keep going into the Panama case. There arguably the United States was invited in by the lawful regime. So that's another difference. Here, that's definitely not the case. And you see the president saying and threatening the vice president of Venezuela and saying, you know, as bad as what happened to Maduro, what will happen to her is worse. Exactly. It really gives the lie to the idea that this is some sort of police action because she, you know, what's the indictment? That's it. That's it. But that's my, that's my big question here. I mean, Trump openly stated, we're going to run it and that we are going to extract their oil wealth. At what point does, does, does Trump's candor become a confession? I mean, doesn't, doesn't on a legal level, doesn't him stating in front of cameras with functioning microphones, stating his intent to occupy and take resources? Didn't he just destroy his administration's legal defense? Even if the indictment, it isn't flimsy. I mean, he just said it. I think that's a great way to put it that, you know, that he's telling us the truth in the midst of this subterfuge, this, this lie that this is a police action that I give that he wants to run Venezuela. Let's just get into that. I mean, what he's really doing is rediscovering this fun thing in his mind, fun thing, really horrible thing of American colonialism. That's it. But here's a crazy little detail, you know, even in the horrific history of American colonialism, for instance, in the Spanish-American war, which led to the America taking several colonies, there was a debate in Congress and there was a declaration of war and an authorization of the use of force. And so even in that misguided moment, America realized, you know, as bad as it was, that this can't be done unilaterally by a president, getting involved in colonial running of other countries, you know, if war takes up domestic resources, that really starts to strain the resources of the United States. And he wants to do it unilaterally. So as bad, let me just make my point, as bad as colonialism was and it was horrific, at least there, they were better, it wasn't a dictatorial move, it was an active decision of Congress. So, Prokhori, would you say then that the Trump doctrine appears to be that the US and Russia and China just carve up whatever weaker nations they want? I mean, that seems to be what the deal that's been cut means. And is there anything in American or international law that permits that sort of new world order? Well, the idea that America is going to have any standing now to criticize the invasion of Ukraine or to criticize China as a threatens Taiwan, all of that starts to be a hard argument to make because it looks like the United States is involved in this manifest destiny or colonial quest to take over other nations and the idea that there's, you know, the disability. I mean, the Nuremberg trials were partly about crimes against humanity and the Holocaust, but they also were about aggressive war. And when Gering was put on trial, that was one of the things that, one of the main things that he was accused of, that set a precedent, which is that nations can't just, you know, invade one another. It's a fundamental idea of international law. And really, what Trump is doing is nothing less than undoing it. I mean, so that we have the domestic argument that we went through. He's usurping the power of Congress and he's certainly undoing international law. Now, is it a doctrine? Is it a thought out thing? He's an impulsive person, not somebody thinks theoretically, but he's certainly doing a huge amount of damage. He's the ball in the, you know, in just the ball in the shop, destroying all the remnants of law. Yeah, I mean, that's the terrifying thing. If other nations now adopt this logic, like if the new paradigm is that Putin is Hitler and Trump is Mussolini, if China cites this as justification for seizing Taiwan, do we have any legal rebuttal left? I'm not that sure this administration would object at this point. It could be, you know, in their minds of willingness to carve up the world among these three powers. But what's really unfortunate is, you know, it's fledgling international law, but at least those principles are there and that when Putin invaded Ukraine, the world could say, you know, that's not allowed under our post-World War II consensus. And if Trump is doing the exact same thing and this blatant way, not apologizing about it, it becomes much harder. We're back to this error of colonialism and, you know, as wild as that is to say, that's exactly what's going on. Before the break, let me ask you one last pestering question on this. And then when we come back, I want to talk about what Congress must can or might do. But just so I understand, professor, is there any plausible constitutional argument that this action fits within the president's unilateral authority? I mean, are we, are we still within any guardrails at this point? I know it's happened, but is there any real argument they could make? Or were there cases just depend on a really sympathetic and obedient judge? Well, I mean, here's the problem, John, that courts really have not been willing to enforce the war powers, they regard it as a political question. There is one kind of amazing moment in the Kuwait war where a federal district court judge temporarily put an injunction on military use of force. I think it lasted a few hours, though. And a colleague of mine at the University of Pittsburgh Law School litigated that. But aside from that, you know, and a couple of cases, there were cases in Vietnam where there was litigation strategy to try to stop legal bombing. But courts are just not willing to do it. So who has to act? It has to be Congress. And as we were saying before, as Congress refuses to act, it's essentially giving carte blanche, giving permission to the president to do that. When it comes to Maduro himself, you know, Norega died in prison. I don't see, there's any world in which Maduro is going to return to Venezuela. So the damage is done. And the legal mechanisms to fix it are really few and far between. That's not to say nothing can be done. I mean, one of the things and maybe we'll get to this later in more depth. And I was talking to my friend John and Washington DC, a long time friend, who's the best man at my wedding. And, you know, he really, I was feeling despondent like what can we do? And his point was so clear and compelling. He was saying, look, what we need to do is compel our members of Congress to act preemptively to stop any more of this, to condemn what happened, but also to stop an action in Cuba, an action in Greenland. And when the Congress uses its war power, we're really talking about a passive failure of them to act, and the president's use for a patient of that power. But if they were to actually speak up, that really is something that they've actually done. Hold that thought because I want to talk you about Congress. And hopefully we won't enrage our listeners too much because I heard, I heard that there's a high enough civilian death toll, the democratic leadership is willing to write a strongly worded memo. They're really going to do it this time. I mean, I mean, strongly worded, Corridor. They are, they're going to go full-annnessy international on this. They're going to be John, like the John Brown of Chuck Schumer gesture. So quick break, we'll be back into, I mean, Chuck Schumer is going to tear the tassels off his loafer. That's how enraged he is. We'll be right back on the oath in the office. The John Feeble Sank Podcast is now available six times a week. With me, John Feeble Sanked, I've been murdered on CSI, picketed by Westbro Baptist Church, and host tell me everything on Sirius XM Progress 127. You will hear author, spoleticians, actors, filmmakers, rappers, rock stars, journalist activists, unhinged collars, and way too many comedians. They all have a place of the John Feeble Sank Podcast, and so do you. The John Feeble Sank Podcast, Farrant Biasd, find it on Apple Podcasts, Spotify, Stitcher, or wherever you listen to Biasd. Welcome back to the oath in the office. I'm John Feeble Sank joined by Professor Corey Brechtdider. So Corey, let's talk about what happens next with this Venezuelan invasion, war, occupation. I mean, the reality is, if you want to believe it's about drugs, you have to ignore that Trump just parted in the former Honduran president, can get up importing hundreds of tons of cocaine. If you want to believe this is about democracy, and the good people of Venezuela, you have to believe Trump gives a damn about democratic legitimacy. If you want to believe this is about the Christian folks under siege in a 95% Christian country, you have to overlook the fact that Trump just broke six commandments, and pretty much everything Jesus ever said. And to believe this was legal, you'd have to believe we still have a functioning Congress. Corey Trump did not ask Congress. He didn't tell Congress. He did not get an authorization. He just did a war. And then announced that we're going to run Venezuela for a while and let very large American corporations exploit its oil. So this is this is Donald Trump becoming what we said this was going to be our hemisphere is Putin. Kidnapping leaders, ignoring international law, ignoring borders when we feel like it. And using the military as our assassins, as our getaway car, and as our personal distraction device. So a lot of arguing that obviously he's walked past the line of illegality. Congress has to do something you mentioned before only Congress can formally declare war. We haven't done that in 84 years. So what are the immediate constitutional tools that are available to Congress right now if they cared if this president exceeded his constitutional authority as many experts believe he did. Congress isn't just allowed to respond. Aren't they obligated to what can they do? I think that's exactly the right way to put it and we were foreshadowing this before. But you look in the absence of courts doing anything to enforce the war power and to stop this illegal action. They're not going to do that. In fact, they might very well continue with the prosecution allow for the prosecution of Maduro. And you might might like Noriega will spend the rest of his life in prison. So that's not the place to look. Sometimes it is and we often talk about areas where the court might act. The tariffs case will be decided this Friday. I think so we might have, we'll see, but we might have a limit on the president's power. It's not going to happen here. So there really is only one option that although Congress has the power to declare war the exclusive power and the president can't use Serpa, the only way it's going to be protected is if they use it. And if they actually speak up and condemn this action as illegal, that would be one thing to do. And then looking to the future, Pearl Hibit, explicitly, future invasions of Cuba or of Greenland, as wild as that sounds. It looks like all these things might be on the table or Columbia. That would have teeth. I think then it becomes a lot harder to argue that there's any complexity here that if Congress proactively uses that war power, it can stop. Of course there are other things that they can stop a president. There are other things that they can do very practical things, like refuse down on any of these questions. That was my question. Can they, can they, I mean, obviously condemnation resolutions are really sexy and get a lot done, but can they actually pretend they control the purse rings? I mean, and can they have explicit prohibitions on future actions? I mean, I know, I don't even see these guys retroactively condemning this invasion for the symbolic power. I mean, could this Congress, if enough libertarians came on board, pass a simple majority resolution, barring future military action against Venezuela, against Cuba, against Greenland? Could they do that? That's exactly what I think needs to happen. And Thomas Massey, and we no longer have Marjorie Taylor Greene, but that wing of the party, Boba, who talked about America first, who talked about, and might some of them be believers in this idea that we don't want endless wars, all of those things that they campaigned on, that they define MAGA around. Obviously, that's all thrown out the window. So we don't need a lot. We just need enough to get to a majority. It's a majority of both houses are required to to to revoke the war power. You know, one question, and I'm not sure about this, but I'll throw it out there is, yes, courts have been reluctant to act, but this is a unique situation that we're talking about. If Congress were to revoke its war power and the president would over the objection of Congress, you use, you serve that power and engage. That starts to be, you know, really pushing the court with its political question doctrine, which is sort of a hands-off idea that the two branches can work it out. That's not the two branches working it out. That's really the president you're serving entirely, the power of Congress. And then if the president were to ignore it, then Congress would be well within its rights to refuse to allocate funds. And that is a real power. And so I think we should be talking about this. We should be, you know, we're having, we had Ted Lu, we had Senator Sheldon Whitehouse, as we bring on this in this new year, members of Congress, we'll talk to them about this. Would that require 60 votes in the Senate or just, you know, having spines? Just the majority of both houses. There's no super majority requirement in the work hours. Do you think at this point there could be a realistic bipartisan path here or do you think, Corey? Be honest, is fear of Donald Trump overriding constitutional duty? This is going to be the year. We're going to see a lot of our Republican friends make the Marjorie Taylor Green choice and recognize that this guy's not going to help them keep their jobs in the midterm. They haven't all figured it out yet. But I mean, are they still terrified of him enough that that peace is going to escape through this? Well, we saw in the Epstein files, there were a lot of defections and there was a compulsion on the Department of Justice to release those files. This seems to me to be an equally fundamental, not more part of the identity of MAGA, at least those who really were believers in it. I mean, that's what you said was no endless war. Trump was asked about how can you justify this after you claim no endless wars? And he had some, it really is America for it first because we want, you know, safety with our neighbors. Mission accomplished. It was a cakewalk. It was a cakewalk. We were greeted as liberators. They love, I mean, these idiots have no idea what the future's going to hold. And it's another example of the reality that Donald Trump is probably not going to be alive to have to deal with the after effects of the things he broke. But let me ask you the million dollar question on this one, Professor. And this is what they're all talking about in all the chat rooms. Is there any serious constitutional argument against introducing articles of impeachment this week? I mean, if a president initiates an unconstitutional war based on lies, it seems like that is an impeachable offense, even if it's never been treated as one historically. But is the real argument only political? Is there any serious constitutional argument against introducing the articles right now? I think the problem is, you know, right now, as things stand. Right now. The president's got his argument and people like me have our argument. And there's a standoff about whether or not this supposed police action, you know, it wasn't, it was constitutional or not. So making the impeachment point is harder now. But that's why to go back to our theme, if we could get members of both the houses to declare the opposite of declaring war, to revoke the war power, then the president defying it obligates the Congress, I would say, to impeach because one of the main things the Congress is supposed to do has just been obliterated. And, you know, I think that's already where we are, but it just becomes so much clearer. So certainly if we're still in this world and Democrats take Congress, doing both. And if the president were to defy Congress, you know, by engaging in any of these foreign wars without authorization, yeah, case for impeachment is so clear. Now, you know, get in line right, there are so many things that we couldn't impeach this president for. So, you know, but I'd put this up there. I mean, we've discussed it before. You know, I'm really on the side of impeachment. I love impeachment, but only for the articles, which is to say, I've talked about it before in the show, back during the Obama impeachment joke I've ever. Oh, Lord, give me some time. Back during the ObamaCare battles, we mock the Republicans for introducing these, you know, kill ObamaCare bills every week when they didn't have the votes. We made fun of them. And all along, what were they doing? They were clearly, they knew all those bills were going to failure, but they were reasserting their messaging to their base, right? All of them. We hate the Black Eyes Healthcare Plan that makes your life easier. We hate it. They kept on getting the messaging out. They fun raised off of it incredibly. And those nonstop ObamaCare doomed to fail repeal votes wound up being a real mission statement that carried them through the midterms. I have believed for a long time. The Democrats were handed 10 counts of obstruction by Robert Mueller. They could have tacked those on to the first impeachment over the Zalensky, cheating to win the election. I'd love to see them try to do it. I know they won't. I know they won't, but what message does it send to the rest of the world, the American people and to historians of the future? If this Congress does nothing, I mean, what message does it send about whether the Constitution still constrains power? Well, we've been, I'll introduce it again, this theme really from the beginning of the self-coo, the way in which, and of course, it's particularly app because we're talking about a Venezuelan dictator that destroyed the other branches of government in Maduro and Venezuela. And what Trump is doing is also destroying the other branches of government, usurping the powers of Congress, of the courts and this defiance of court orders. And so, you know, that's why this becomes so essential that Congress act here to reclaim its war power, because if they don't do that, then they're in the same business that the Supreme Court has been, acquiescing in the immunity case. And Congress has acquiesced in other areas as USAID and the powers of Congress to see its own legislation and force were destroyed by Elon Musk. It's happening again. And, you know, the war power, if I had to pick, you know, think about it, right? It's the power to invade, to attack a foreign nation as being usurped from the Congress. That really, if they fail to reclaim it, it looks like the South coup might succeed. All right. One last question about this, then, Cory. At what point will Congressional inaction, at what point can we call it constitutional failure? I mean, I know it's too early in the game yet, but at what point do we say they've just stopped being checks and balances? Well, I think, you know, I'm not ready to call it yet. I think that as we were talking about one of the strategies here has to be to try to call MAGA out and say, you know, this is one of the rare areas where the principles, if you want to call them that, of MAGA, no foreign wars are really directly in conflict with everything this president is doing. And certainly the Democratic Party also doesn't want to see these wars, illegal wars of aggression. So maybe we could start to see the cobbling together of this coalition that's not going to be stopping the South coup in court, but it is using Congress functioning as it should be, jealously guarding its own power. The possibility of impeachment remains, especially depending on what happens in the midterms. So no, I'm not counting us out. I think it's extremely precarious, dangerous. The president is really, you know, not just destroying norms with destroying constitutional democracy, but the fight still, we're still in the fight. I've been using the phrase, you know, I'd rather see us in a constitutional crisis than not one because at least the crisis implies conflict. And this is a crisis over the war powers. But the fact that there's a crisis that there's a battle still going on, that's a good thing, not a bad thing. The other alternative at this point is to give up. And we'll talk for a long time about whether this was a distraction from Epstein files from a terrible economy, from Supreme Court slapping him down about the National Guard and from Jack Smith's devastating testimony released by the Republicans in the House Judiciary Committee on New Year's Eve. I want to talk about that because that would have been our lead story for this episode. If this hadn't happened, we'll be right back on the Earth in the office. These are difficult times. And if you believe in justice, progress, and democracy, the news you read and listen to can be pretty depressing. And that's why there's a new podcast called Good News for Lefties and America. Every day, it features positive news stories for progressive listeners. Because no matter how disturbing the headlines might be, there's always hope we can build on for a better tomorrow. Good news for lefties and America. Listen on this platform at GoodNewsForLefties.com or wherever podcasts are heard. Welcome back to the Oath and the Office podcast. Corey, I've been so busy asking you about all of this constitutional malfeasance. I haven't had a chance to congratulate you on having the number two podcast on Apple and the government category. Well done, Professor. Well done. Thanks, and I'll throw that back to you, John. Of course, this has been an amazing project. The two of us, you use that phrase, you know, I'm just a MOOC and I'm going to ask the dumb question, but that's not what you're doing. You're making sure that the two of us are able to translate some of the most complicated issues in law for the American people, for the listeners. And I can't think of anything more important. I'm so glad to be doing this with you. And that's why we reached number two, a new record. I love it that the listeners are into this. I'm into it, as you know, we were three. It was our record before in the government category. Now we're two. So the other thing is, too, we often, you know, shoot up when we have our amazing guests, like I mentioned Senator Whitehouse or Dallio Lithwick, if you haven't heard that, you could go back. But our record episode was just the two of us. So that means that listeners are liking this dynamic and what a thrill it is to do it. Well, thank you. And I'll remind you again that the self deprecation I do is just part of me being a charming sociopath. It's blown at bridge. Let's talk about Jack Smith. Everyone's debating whether, you know, the Republicans screwed up by releasing this on New Year's Eve. They say they were trying to bury it. So no one would see it. For me, New Year's Eve is when most of us are hanging out in the house all day. It'll be go out at night. I got to watch the whole thing. I mean, if they wanted to bury it, they would have released it at midnight on Christmas Eve. But Jack Smith testified very clinically before the Judiciary Committee, what he said was quite powerful. And he testified that he fully expected he would secure convictions at the trial. So let's start with that one. As a constitutional law professor, yourself, how significant is that statement that he knew he would secure convictions at trial? Well, he, he, the parts that I watch, I was so impressed with him, you know, this is a serious prosecutor who was doing his job and was pursuing the rule of law, was enforcing the law against the head of in the January 6 case, so that really the person that was organizing this attempted, you know, violent coup on the Capitol for the really first time in American history that it had gotten that far, there had been attempts to steal elections before, but not like that, or in the documents case. And what you see in watching him is how careful he is in the face of really just an attempt to score political points by the House Judiciary Committee and its lawyers. And here he is just giving you the facts. And, you know, I had hope after watching that because, you know, the facts matter. And when you listen to somebody who says credible as Jack Smith, give these responses, know the cases so well, this definitely backfired on the House Republicans. It didn't make it look like a political prosecution. And then when they try to, you know, make their arguments like about free speech, he just decimated them. There is no free speech right to let me ask about that. Yeah. Cause again, every witness he had was a Republican. And he made it very clear that Donald Trump's conduct went beyond his destructive lies. So can you explain the constitutional difference between protected speech and criminal fraud? Why is I get why lying is protected under the First Amendment? Why is fraud not protected by the First Amendment? And how does that principle apply to false electors? I mean, one of the, and kind of delving into the issue of free speech, one of the huge mistakes that you see so often and was used by the staffer of the House Republican Judiciary Committee as they were going after Jack Smith is to think that somehow just because somebody says something that it's protected. And what Jack Smith did so well, and I'll just on my own show why that can't be right. If you go up to somebody and say, Hey, I'm going to come kill you tomorrow. You're using your speech, but that's obviously not protected. It's a true threat. And it's criminalized. And that's true of all sorts of speech too, like fraud. And here's another thing that you can't do. You can't engage in a conspiracy, which yes involves speech, to destroy an election and to violently steal electoral votes. And you know, that the work is today that we're recording this actually. It is January 6th. This is the anniversary. And it's worth saying what this scheme involved that Trump was invited for. They, they refused to, the plan was that they would get Mike Pence to refuse to certify electoral votes. They wouldn't reach the threshold that was necessary to win the election. That would throw it to the House of Representatives. And the House would vote state by state. And Trump thought he had the votes each day. That's just an experience. That conspiracy is not protected for a speech. A coup is not, and of course, the irony to go back to our other story that we invaded a country because of a dictator who usurped democracy and refused to respect an election. That's exactly what Trump did on January 6th. And yet he invaded a foreign country. I imagine if somebody wanted to invade us that Trump would have to admit, you know, you know, if he would have succeeded, he would have had to admit that, yes, we could have been invaded and he could have been seized. I'm glad it didn't come to that. Well, if Russia invades in Kineps Trump, I'm sure Trump will encourage maggot to support whatever Putin does. But you're right, we're taping this episode during the day of January 6th. Happy anniversary to all you terrorists who celebrate because it was terrorism. According to the dictionary, it was terrorism that day. Jack Smith plainly stated Trump caused it from a legal standpoint. What does causation mean here? I mean, does this summoning a mob and then getting the man agree based on lies while you're engaging in a criminal conspiracy and then refusing to stop the mob violence? Does it meet that standard? Well, I mean, I what he was in that they had all sorts of things that they could have invited him for. One thing they didn't, by the way, which is relevant to free speech, is incitement. So at the ellipse when Trump gives that speech and says, we're going to go down to the Capitol. One thing that Jack Smith considered, but didn't do was to indict him for that speech. Now, why didn't he do it? Even though to my mind, incitement to imminent lawless action, incitement to violence is not protected speech anymore than threatening to kill somebody the day after tomorrow to use my other example. He could have indicted him. I think he would have not been violating his free speech, but he wanted to stay so far away from the free speech issues that he decided not to do it. Now, why did he indict him on, you know, for essentially leading this attack on the Capitol? Because the way he put it when he was asked, well, why did you like Trump? Why not, you know, other people, but not Trump? He said Trump wasn't incidental to all of this. He was at the top of the conspiracy to steal the action. And so I thought that was another powerful moment here. And, you know, he really was careful to avoid any of the free speech issues here. Jack Smith did testify the Donald Trump's tweet, endangered the life of his own vice president. And I know, wow, it's so easy to forget about this stuff. But how extraordinary is that? Legally, historically. I mean, just to remind people, I didn't have it on my bingo card that Mike Pence was going to be the hero of January 6th, but, you know, he refused to go along. He evidently consulted Dan Quail. And, yeah, it's worth actually getting into the deep nitty gritty here. I don't mind doing that. The 12th Amendment to the Constitution, the Johnny Eastman, who was a legal advisor, the former dean of Chapman Law School, told Trump that the vice president under the 12th Amendment could essentially steal the election that he could refuse to certify the votes because it refers to the ability of the vice president to open the votes in the 12th Amendment. Right. And, you know, this is bullshit of the worst kind. And although there was such pressure on Pence, I mean, it's remarkable to think about it in retrospect, not just pressure from the president, but these scenes at the capital of hang Mike Pence and nooses. And yet he didn't do it. He consulted Quail. He consulted his lawyers and he knew there is no power of the vice president to steal an election under the 12th Amendment. Now, one good thing that came out of January 6th is we had an electoral count reform act that made that very clear that the role of the vice president is just ceremonial. But, you know, he could have gone along with it. And there was so much pressure. So, oddly, Mike Pence wound up being one of the heroes of January 6th. I guess the other hero of January 6th is John Roberts for MAGA. And let me ask you about the presidential immunity scheme because Jack Smith was asked whether the Supreme Court's immunity ruling exonerated Trump and his answer was one word no. I think that was my emotional high point of the entire process, professor. But what does that tell us about the scope and the danger of that ruling? Well, you know, my book, the presidents and the people, five leaders who threatened democracy and the citizens who fought to defend it, which ends talking about January 6th as a attack on democracy that we really are still facing. That came out the day after the immunity case. And it was kind of a frightening, you know, I'd say coincidence or not coincidence, frightening confluence of events because the immunity case to me, if I depict one thing that really enabled this attack on democracy, it's saying that the president of the United States, not not only when they commit crimes, but when they commit the most dangerous kinds of crimes, the crimes against democracy and attempt to stay in power to do what Maduro did to try to at least attempt to usurp an election, they're going to get away with it. And the idea that not just a sitting president, but a former president has immunity was pulled out of whole cloth. There was no real precedent. We had a civil case Fitzgerald that was about Nixon, but it didn't have to do with criminal destruction of our democracy. And so yes, when the idea that he's in any way exonerated by the immunity case, absolutely not, the people who are also not exonerated are the Supreme Court of the United States. I just whisper to really, you know, enabled what we're seeing now, the usurpation of law. Do you think the Robert scored protected the presidency or did they protect Donald Trump? They protected Donald Trump and I think they in some ways destroyed the presidency in the classic idea that, you know, the idea of the Constitution as we have Article 1, which creates Congress, we talked about the War Power, Article 2, creates the presidency and limits it, Article 3. And right, you know, the co-equal branches, that's supposed to be the idea, what the immunity case does is it puts the president in the de facto situation that if they act illegally, even criminally, that they're going to get away with it. Well, what is the incentive there? It's to destroy the other branches. The immunity case is an example, I think, of the way that we've lost our way when it comes to the almost country. I mean, if there's one thing these aristocrats on the Supreme Court have taught me, it's that aristocrats really miss having a king. How do you see this ruling shaping the behavior of future presidents, Professor Brecht Schneider, especially let's say future presidents that were fascists but not incompetent morons like Trump? I mean, imagine a fascist less clumsy than this guy with the immunity ruling. Well, I'll say, you know, in some ways, the presidency has become so much more dangerous than some monarchs anyway. And I've been watching as you know, Victoria Netflix, I recommend it to everyone. Watch it. Watch how she behaves. Watch how Queen Victoria is constrained by the constitutional system of parliament, how, you know, when it comes to an assassin on her life, how she differs to the courts. You know, as crazy as this might sound, the American presidency has become more dangerous than the British monarch, which is constrained by tradition and by law. And you know, that's what this immunity decision does among others. It's not the only one. It's also the destruction of Humphrey's executive or we'll see how the tariffs case goes. But over and over, the refusal to intervene in these war powers cases and kind of pulling it all together, what it all amounts to is the creation of an office that is more dangerous than a monarch. Yeah, I'll say I mean. And Kudos to Jack Smith. He said he had his eyes wide open. The Trump will seek retribution against him, which I think reveals a lot about the nature of the threat we're all facing because we all know that Donald Trump will try to hurt this man for telling the truth. We all know that Donald Trump freed the terrorists who committed violence against police officers and that his DOJ is persecuting the law enforcement officers who track down the criminals. I mean, is this how constitutional democracies fall apart normalizing lawlessness rather than a sudden coup, just normalizing the shitty lawlessness? That seems much more feasible way to make democracy disappear. I mean, you know, the January 6 and the attempted coup, which is what that was, violent coup, is a threat to democracy. But right up there too is the desire to shut down the opposition. And we've seen Trump, despite Susie Wiles saying that she was going to live in him just to a few days, dig into this to seek the prosecution of Tish James to seek the prosecution of Komi. Those are all attempts to shut down opponents and to also deter other opponents from challenging him. And when you hear Jack Smith say that yes, he believes he will be targeted. You know, that's nothing less than the attempt to destroy the rule of law because what Jack Smith made so clear is that all he was doing was enforcing the law, doing his job. And you know, there are constitutional heroes along the way. We've talked about many of them and watching that testimony, Jack Smith is certainly one of them. He didn't, he was blocked by the Supreme Court and the immunity decision, which essentially stopped that prosecution. That's right. But you know, he still continues to tell the truth. And so it was an amazing performance. It wasn't an active politics. It was an active integrity and I'm grateful for him. All right. So I mean, if Congress doesn't do anything now on war powers, on accountability, on impeachment, I mean, what, what precedent are they setting for the next crisis? Like, I mean, I think the American people at this point just want to side they know they can root for. Yeah. I mean, if you go back to that Panama example and, you know, as you put it so well, the Panama example was not, I don't think it was lawful, but you know, the fact that it happened, it becomes a precedent. And then on an unlawful precedent, we start to build more illegal actions. Well, if Trump gets away with this, the war power is in this idea that Congress is initiating war, not the president, looks like it's just being eroded. And more and more, I think we see a risk. Now, you know, that, that's incredible to say. I didn't even think I'd be saying anything like this a month ago. But if Congress doesn't have any power to stop a president foreign interventions, there really is a sense in which the South Koo has succeeded. And that's why it's so imperative that we hold our members of Congress not just to say something, not just resolutions, not letters, you know, to the, to the president or petitions, but really invoking the war power to say, no, you can't use this. Yeah. On that, sure, you know, we'll, we'll see if that happens. Professor Brechtreider, what's the best way for our listeners to follow you and to keep up with your brilliance the rest of the week? Didn't it seem like we were all optimistic last Friday with Zoran Mamdani? Zoran Mamdani was sworn in and it was all beautiful. And Jack Smith obliterated Trump in this testimony. And now, boy, we're just, we're, we're, they're just bombing, they're just bombings out. You know, it's a, it's a lot of up and down. One thing I'm hearing from listeners is that, you know, that we're going through a crisis. We're going through it's demoralizing to see, to read the news every day. Some people want to check out. But what I think they get out of this podcast is a kind of solidarity that we're going through it together. We're not lying. We're telling the truth about how frightening things are, how dangerous. But we're also providing hope where we can. And, you know, in the end, the main theme I think of the podcast is even if each of the branches of government, abundance, the Constitution, abundance, the rule of law, it's up to citizens to reclaim it. And that's what we're trying to, you know, be part of here. And so I've still got hope as, as, as, as demoralizing as this week is. And, you know, so what people can do to follow us is to read our substack. We have a newsletter, the Oath in the Office newsletter. They can subscribe on Spotify or Apple or wherever you get your podcast. Leave a review on whatever your favorite podcast app is. You can check out our YouTube channel if you want to watch us and not just listen to us. And, and John, really, what a pleasure it is to do this. It's, the topics are just maddening, but yet I enjoy it. And the laughter is great. And, uh, oh, we need it. The last generous of you to call with that. Will I host the evening programming on Sirius XM Progress channel 127 Five Nights a week? You can also, if you don't have Sirius XM here, the John Feeblesign podcast every morning. Cory Brecht's Niders are regular. Every Monday night, I have a substack. And my book is called Separation of Church and Hate. And I just want to remind everybody, don't panic. The Constitution is still there on paper, even if enforcement is now optional. Cory, thank you so much. I want to thank Bay Wolf and Wendy and everyone who puts the show together. It's always a pleasure. I always feel less terrorized every time I talk to you, Professor. And we will see all y'all next week on the Oath and the Office.