DOJ vs. Trump: The Indictment That Never Came (with Glenn Kirschner)

<v Speaker 1>Welcome to The Oath and the Office.
<v Speaker 2>I'm John Fugel Sang, joined as always by the star
<v Speaker 2>of this show, Ivy League, political science professor, author of
<v Speaker 2>The Oath and the Office and the Presidents and the People,
<v Speaker 2>and a man kicked out of Wu Tang Clan for
<v Speaker 2>being too hardcore. I give you Professor Corey Bretschneider. Corey, Hello,
<v Speaker 2>Hello from LA where I'm taping today.
<v Speaker 3>Yes, I know you're out there, and thanks for that intro.
<v Speaker 4>They get better and more ridiculous every week, so I
<v Speaker 4>look forward to that.
<v Speaker 3>And you know, we have an amazing show today.
<v Speaker 4>Of course, we're going to talk about how to fight
<v Speaker 4>back using impeachment. We're going to talk about the Federal
<v Speaker 4>Reserve case that the Supreme Court's going to hear, and
<v Speaker 4>then we have this amazing guest, and Glenn Kirshner is
<v Speaker 4>going to talk to us about the attack from the DOJ,
<v Speaker 4>the weaponization of the DOJ as an insider, somebody who
<v Speaker 4>worked there for a long time.
<v Speaker 3>So a great show today.
<v Speaker 2>Terrific and there's so much to get to. Hey, by
<v Speaker 2>the way, congratulations, no more fence at all on tiny
<v Speaker 2>boats making its way to America. I mean We've saved
<v Speaker 2>what like like thousands and thousands of lives because there's
<v Speaker 2>no more drugs coming anymore. That's what Venezuela is all about, right,
<v Speaker 2>I understand now they're just talking about oil and that
<v Speaker 2>Trump's going to take the money from the oil and
<v Speaker 2>put it into an account over it. But it was
<v Speaker 2>about the feendom, I mean, the cocaine not I'm not sure.
<v Speaker 2>They kept changing the stories and Greenland you should get
<v Speaker 2>very used, so the story's being changed. So it's been
<v Speaker 2>a crazy week, Professor. The DOJ is launching this insane
<v Speaker 2>prosecution of the FED chair because he won't lower interest rates.
<v Speaker 2>They're still trying to fire Lisa Cook. Trump is threatening
<v Speaker 2>the sent troops to arrest protesters in Minneapolis after Renee
<v Speaker 2>Good was killed by an immigration officer, and they are
<v Speaker 2>still covering that up, not allowing state law enforcement to
<v Speaker 2>investigate anything. Trump now says he will take a Greenland,
<v Speaker 2>whether Denmark likes it or not, and he's sending bizarre
<v Speaker 2>letters to the leaders of Norway indicating he doesn't know
<v Speaker 2>how things work. He's threatening war with Iran, declaring himself
<v Speaker 2>acting president of Venezuela. The DOJ just searched the home
<v Speaker 2>of a Washington Post reporter, and Jeff Bezos has decided
<v Speaker 2>it's not worth commenting on. And a federal judge this
<v Speaker 2>week compared Trump to an authoritarian on free speech, saying
<v Speaker 2>that he seeks to exclude from participation everyone who doesn't
<v Speaker 2>agree with them. This was a Ronald Reagan appointee, and
<v Speaker 2>the White House has accused him of being a left
<v Speaker 2>wing activist. And for the first time, a president did
<v Speaker 2>not acknowledge Martin Luther King's holiday until about eight to
<v Speaker 2>fifteen pm at night. After forty years every president has
<v Speaker 2>done it. They got shamed into doing it before I
<v Speaker 2>turned midnight. And oh yeah, Trump flipped off a union
<v Speaker 2>worker in Michigan who is heckling him. So we have
<v Speaker 2>a lot to bring down Corey, and I want to
<v Speaker 2>begin it with Minnesota. A federal judge just barred, as
<v Speaker 2>you know, federal agents from arresting peaceful protesters or using
<v Speaker 2>non lethal munitions and crowd control tools against them. This
<v Speaker 2>is US District Judge Kate Menendez, and it's barring Homeland
<v Speaker 2>Security and ICE from using pepper spread non lethal munitions
<v Speaker 2>and prohibiting federal agents from stopping vehicles following them. Now
<v Speaker 2>the Democrats are openly discussing impeachment of Homeland Security spokesmodel
<v Speaker 2>Christy Nome over fifty Reportedly up to seventy House Democrats
<v Speaker 2>are supporting these articles. Obviously, this won't happen with the
<v Speaker 2>Republican control of the House right now. But I want
<v Speaker 2>to ask a lot of questions about this, because we
<v Speaker 2>tend to think of impeachment as something reserved for presidents
<v Speaker 2>and judges. But now, I mean up to eighty Democrats
<v Speaker 2>could be supporting this. Constitutionally speaking, professor, what does it
<v Speaker 2>mean to impeach a cabinet official? And why is this
<v Speaker 2>not some kind of like fringe or symbolic act here.
<v Speaker 4>Well, I think it's really restoring to a place something
<v Speaker 4>that has been in disuse that really needs to be used.
<v Speaker 4>And that's the power of impeachment, as you say, not
<v Speaker 4>just as famously, of course, we've talked about impeachments of presidents.
<v Speaker 4>Donald Trump himself has been impeached, which is the formal
<v Speaker 4>procedure of the House of Representatives uses to.
<v Speaker 3>Begin removing someone.
<v Speaker 4>The Senate majority is only needed in the House, and
<v Speaker 4>then two thirds are needed in the Senate for removal
<v Speaker 4>that's never succeeded when it comes to a president. But
<v Speaker 4>Donald Trump has been impeached without being removed twice. But
<v Speaker 4>less understood, as you say, just to elaborate, is that
<v Speaker 4>that same procedure of fifty percent of members of the
<v Speaker 4>House and then two thirds of members of the Senate
<v Speaker 4>can be used not just to remove presidents or federal judges,
<v Speaker 4>but to remove also cabinet officials, top government officials, including
<v Speaker 4>cabinet officials, And that actually, in some ways is more
<v Speaker 4>true to the origin of impeachment.
<v Speaker 3>One of the.
<v Speaker 4>Places really where impeachment comes from is the British system
<v Speaker 4>is England, and in England you couldn't impeach the king.
<v Speaker 4>Of course, the king had a right to rule. In fact,
<v Speaker 4>if you criticize the king, it could be charged with sedition.
<v Speaker 4>But the idea was that even though the king couldn't
<v Speaker 4>make could do no wrong, could make no mistake, couldn't
<v Speaker 4>be subject to indictment or removal, that his advisors could
<v Speaker 4>steer him or her I should say in the case
<v Speaker 4>queen's wrong. And that's where this main idea came of
<v Speaker 4>impeachment of removal from office.
<v Speaker 3>Because the idea was that.
<v Speaker 4>The advisors to the king are charged with certain kinds
<v Speaker 4>of advice in the public interest, and if.
<v Speaker 3>They fail, then remove them.
<v Speaker 4>So anyway, that's a long history lesson to get to
<v Speaker 4>the point that actually that's the original idea that government
<v Speaker 4>isn't just the head of the government, it's also these
<v Speaker 4>other officials. And I think politically too, it's such a
<v Speaker 4>smart thing to do because it puts pressure on somebody
<v Speaker 4>who's really at the center of the abuses that we're seeing,
<v Speaker 4>and it tease up the constitutional issues. I read the
<v Speaker 4>articles of impeachment and there are a number of them,
<v Speaker 4>but one of the most important things that they do
<v Speaker 4>is they systematize all the abuses that we've talked about
<v Speaker 4>as an impeachable violation of constitutional rights.
<v Speaker 3>And the simple point that's made in the articles is.
<v Speaker 4>That like a president is also charged with enforcing the
<v Speaker 4>law and the Constitution, and she's violating rights of free speech,
<v Speaker 4>rights of due process systematically. By the way, I just
<v Speaker 4>watched a local police chief in Minnesota talking about how
<v Speaker 4>his own officers are having their rights, their due process
<v Speaker 4>rights violated by randomly being approached on the street and
<v Speaker 4>being asked for papers. All he said, actually people of color.
<v Speaker 4>You know, these are systematic civil rights violations.
<v Speaker 3>So how do we tee that up? How do we
<v Speaker 3>make that.
<v Speaker 4>The central story not just the horrible killing of Renee Good,
<v Speaker 4>which we covered in depth last week, but the systematic
<v Speaker 4>abuses of Ice. Well, impeachment does that. So, yes, you
<v Speaker 4>know this is one of those places. How do we
<v Speaker 4>fight back? I think the Democratic Party is exactly right,
<v Speaker 4>and yes we won't have the votes for removal, but
<v Speaker 4>it starts the process, it puts it on the agenda,
<v Speaker 4>and it makes one of the central issues. Although some
<v Speaker 4>Democrats don't seem to agree with this, what should be
<v Speaker 4>the central issue I think of this midterm election, which
<v Speaker 4>is the system constitutional abuses by the Trump administration.
<v Speaker 1>Yeah.
<v Speaker 2>I want to see a lot more articles of impeachment
<v Speaker 2>for a lot more members. I mean, they can just
<v Speaker 2>table them until January second of twenty twenty seven. I
<v Speaker 2>want to go through some of the specific grounds there sighting.
<v Speaker 2>But I just got to ask, because my job is
<v Speaker 2>to come here and ask the dumb questions that our
<v Speaker 2>listeners would be too prideful to ask, not me, what
<v Speaker 2>are the constitutional standards for impeaching an executive ranch officer
<v Speaker 2>like a DHS secretary. It's like the president, right, I mean,
<v Speaker 2>it's high crimes and misdemeanors about criminal law or is
<v Speaker 2>it about abuse of power and violation of constitutional norms?
<v Speaker 4>No, Man, John, I'd say, not only is that not
<v Speaker 4>a dumb question, that's about the most important question you
<v Speaker 4>can ask about how our government is supposed to function
<v Speaker 4>and how it's not functioning.
<v Speaker 3>And that's absolutely right.
<v Speaker 4>This phrase high crimes and misdemeanors is the same standard
<v Speaker 4>we're talking about a president, a judge, or one of
<v Speaker 4>these cabinet officials as we're talking about here.
<v Speaker 3>But what does it mean?
<v Speaker 4>It certainly sounds like and this is why it's far
<v Speaker 4>from a dumb question, a great one, Like what you
<v Speaker 4>need to show is that she committed a crime, and
<v Speaker 4>yet the things that I was describing are not crimes.
<v Speaker 4>It's not that she'd go to prison necessarily, it'd be
<v Speaker 4>very hard to prove that she's guilty of a crime.
<v Speaker 1>But so maybe not all of it. In a second, Well,
<v Speaker 1>we'll see.
<v Speaker 4>I mean there are some I should say, the contracting,
<v Speaker 4>for instance, and the notes about self dealing are potentially
<v Speaker 4>crimanal offenses. But the deprivation of civil rights, of constitutional rights.
<v Speaker 4>Although they might be criminal, that's not the way they're outlining.
<v Speaker 4>And that's also very important to point out. It's not
<v Speaker 4>the standard that we use in impeachment to see whether
<v Speaker 4>or not to remove a public official, and a criminal
<v Speaker 4>trial we have to show beyond a reasonable doubt, and
<v Speaker 4>impeachment it's more like preponderance of the evidence that it's
<v Speaker 4>likely that they've done this. But most importantly, to go
<v Speaker 4>to your question, if you look at a criminal law textbook,
<v Speaker 4>there is no section of a criminal law textbook, and
<v Speaker 4>you take for instance, first year criminal law and law school.
<v Speaker 3>Almost all law schools require it.
<v Speaker 4>You're not going to see a section of that book
<v Speaker 4>called high crimes and misdemeanors because that's not a criminal category.
<v Speaker 3>It's more an idea.
<v Speaker 4>Again, going back to England, that's where the phrase comes from,
<v Speaker 4>that the office was demean that's the sense of a
<v Speaker 4>misdemeanor that's being used or lowered, and that, in other words,
<v Speaker 4>that there was an abuse of power, failure to do
<v Speaker 4>the duty of enforcing the constitution and the law that
<v Speaker 4>all public officials taken oath, not just the president, all
<v Speaker 4>public officials taken oath to pursue.
<v Speaker 3>So no it's not a criminal offense.
<v Speaker 4>It doesn't require the same standard of proof, and it's
<v Speaker 4>the different kind of category. And if I were to
<v Speaker 4>pick one way to describe the abuse, it's systematic violations
<v Speaker 4>of civil rights of exactly the time that we're seeing
<v Speaker 4>from Ice.
<v Speaker 2>I was actually accused of diminishing the office when I
<v Speaker 2>was hosting America's Funniest Own videos for a couple of seasons.
<v Speaker 3>So I know that you were the host of America's
<v Speaker 3>Funniest Home I.
<v Speaker 2>Was young and I needed the drug money. So I mean,
<v Speaker 2>the most common grounds Democrats are whispering about. I mean,
<v Speaker 2>obviously that she interfered with lawful congressional oversight of DHS,
<v Speaker 2>especially its attention facilities, like she's used policies like like
<v Speaker 2>the seven day notice before visits to deny or or
<v Speaker 2>delay Congress people from getting into facilities where people are
<v Speaker 2>being held in cages. There's also, you know, obstruction of Congress,
<v Speaker 2>violation of public trust and constitutional rights with these warrantless arrests,
<v Speaker 2>with this insane use of force, with the response and
<v Speaker 2>cover up to the shooting, because there is not just
<v Speaker 2>a cover up of child rape. Now there's a cover
<v Speaker 2>up of the killing of an American citizen done by
<v Speaker 2>this administration, misuse of federal funds. You mentioned the self
<v Speaker 2>dealing and the DHS contract awards, and then just you know,
<v Speaker 2>aggressive enforcement tactics. I mean, my question is, how does
<v Speaker 2>impeachment functions as a tool when an agency like Homeland
<v Speaker 2>Security is really accused of systemic rights violations rather than
<v Speaker 2>just someone did one thing bad.
<v Speaker 4>Well, that was the idea of the founding that and
<v Speaker 4>you know, talking about the generalized violations of civil rights.
<v Speaker 4>But then you rightly point to a more specific part
<v Speaker 4>of the articles of impeachment, which are about blocking members
<v Speaker 4>of Congress from doing their constitutionally mandated role of oversight.
<v Speaker 4>Part of what Congress's job is is not just to
<v Speaker 4>pass laws, but to actually see that those laws are.
<v Speaker 3>Being complied with. And how did they do that?
<v Speaker 4>They do that through oversight, through making sure that the
<v Speaker 4>laws and being violated by cabinet officials, for instance. So
<v Speaker 4>what Noelman is doing is she's blocking the most basic
<v Speaker 4>kind of oversight, being able to, for instance, have members
<v Speaker 4>of Congress access facilities. She's just refusing. So what the
<v Speaker 4>framers did you know? They were flawed people? In many ways,
<v Speaker 4>we have a flawed system, you know, always point out
<v Speaker 4>its flaws, its weaknesses. They underestimated the power of Congress,
<v Speaker 4>but they gave it some major powers to enforce that
<v Speaker 4>oversight function, and impeachment was the main way to protect
<v Speaker 4>its more generalized powers. If you, I mean think about
<v Speaker 4>just how they laid this out. If you had a
<v Speaker 4>cabinet official that was refusing to allow oversight, well then
<v Speaker 4>they can be not just even if you didn't impeach
<v Speaker 4>the president, you could impeach them. And that's why they
<v Speaker 4>designed this I would call a dormant mechanism because it
<v Speaker 4>just hasn't been used.
<v Speaker 2>Because both parties care so much. Both parties care about
<v Speaker 2>these norms.
<v Speaker 4>You're right, well, I think the Republicans have not cared
<v Speaker 4>much about them. And that was another flaw in the
<v Speaker 4>Framers thinking. I think they thought, you know, when you
<v Speaker 4>had a president or you had a cabinet official violating
<v Speaker 4>the norms of the Constitution, that they would really stand
<v Speaker 4>above partisanship. And they thought, you know, they didn't envision
<v Speaker 4>political parties, certainly, not like what we had now. They
<v Speaker 4>worried about the danger of faction, but we didn't have
<v Speaker 4>political parties at the time. The Constitution was written they
<v Speaker 4>developed during Washington's term. But you know, this is the
<v Speaker 4>flaw that they thought, Well, if there's a violation of
<v Speaker 4>the law of the Constitution, people will transform the Congress
<v Speaker 4>will actually transform itself from a political body to something
<v Speaker 4>that's not a criminal one, but it is a kind
<v Speaker 4>of quasi legal one.
<v Speaker 3>And let me just say how that happens.
<v Speaker 4>They take a new oath and impeachment the Senate to
<v Speaker 4>become a new body looking only at the question of
<v Speaker 4>legal not just legal violation, but violation of duty of
<v Speaker 4>the oath of office of abusive power. By the way,
<v Speaker 4>our podcast is called the Oath and the Office. How
<v Speaker 4>do you ensure that the office is respected? It's through impeachment.
<v Speaker 4>That's what they thought. So you know, maybe they were
<v Speaker 4>naiven thinking that that bipartisanship would be there, But you know,
<v Speaker 4>we got to use the mechanisms that they gave us
<v Speaker 4>at minimum, and this is a major one before.
<v Speaker 2>We move on, because we have to talk about the
<v Speaker 2>FDC on fire. But I mean, how do you see this, Corey?
<v Speaker 1>Is this really about?
<v Speaker 2>Like I don't want to be too harsh on Christy
<v Speaker 2>Nome because she brings lots of inspiration to many racist
<v Speaker 2>dog murderers. But I mean, is this really about her
<v Speaker 2>or is this about a democratic Congress reasserting their role
<v Speaker 2>as a check on this increasingly insane executive branch.
<v Speaker 4>Well, you know, I should say more generally, there's a
<v Speaker 4>worry among some members of Congress, and we heard a
<v Speaker 4>little bit about it as we have had members on ourselves,
<v Speaker 4>which is that the midterm should really be about the
<v Speaker 4>econ there should be about inflation, and let's not get
<v Speaker 4>mired in this impeachment stuff.
<v Speaker 3>And I think that's really a mistake.
<v Speaker 4>I agree with our guest Roal Torrez that we have
<v Speaker 4>to think about how to combine thinking about the economy
<v Speaker 4>and thinking about the constitution together we can walk in
<v Speaker 4>chew gum at the same time.
<v Speaker 3>So I think it's just essential that.
<v Speaker 4>That members of Congress see the look, the main story
<v Speaker 4>here is not, as Jim Carvell said, it's.
<v Speaker 3>The economy, stupid.
<v Speaker 4>No, it's the existence and fragility of our democracy. That's
<v Speaker 4>really what's at stake, and so to think that shouldn't
<v Speaker 4>be front and center, it's just a terrible mistake. And
<v Speaker 4>that's why with these you know, about ninety members of
<v Speaker 4>Congress you know, I think we're moving in exactly the
<v Speaker 4>right direction.
<v Speaker 3>To tease up the issues. By the way, you know,
<v Speaker 3>Trump did lose.
<v Speaker 4>An election after those two impeachments. Let's let's not forget that.
<v Speaker 4>And part of the mistake in thinking about impeachment is
<v Speaker 4>that because it failed in the formal sense of removing them,
<v Speaker 4>that it didn't work.
<v Speaker 5>No.
<v Speaker 4>I think it did get Americans talking about the constitutional
<v Speaker 4>threat that was Donald Trump. It did contribute his loss
<v Speaker 4>in that election, and we've got to do that.
<v Speaker 3>We've got to learn from that.
<v Speaker 2>Again, he was impeached twice, both times for cheating in
<v Speaker 2>the same election, once before the election, once after the election.
<v Speaker 1>Let's not forget.
<v Speaker 2>So I also want to remind everyone Minnesota has taught
<v Speaker 2>us what maga Christianity's level is right now, which is Corey.
<v Speaker 2>The killing of Renee Good is a tragedy, but she
<v Speaker 2>was also a terrorist, so it's really good that she
<v Speaker 2>got killed. That's the morality we're getting. I want to
<v Speaker 2>move it over to the FTC because we talked last
<v Speaker 2>week about Donald Trump's power that he believes he has,
<v Speaker 2>that he can fire the Federal Reserve. Because Jerome Powell,
<v Speaker 2>who represents a board. He doesn't change interest rates on
<v Speaker 2>his own, a board has to vote on it. But
<v Speaker 2>Donald Trump doesn't understand this. He wants to fire the
<v Speaker 2>guy who won't cut.
<v Speaker 1>Interest rates for him.
<v Speaker 2>And this week the Supreme Court's going to hear arguments
<v Speaker 2>that could expand his power to let him fire independent officials,
<v Speaker 2>including potentially the Federal Reserve Chair. I mean, at first glance,
<v Speaker 2>this looks like an obscure FTC case. Why is this
<v Speaker 2>anything but obscure?
<v Speaker 4>There are two cases, I should say that are relevant
<v Speaker 4>to what we're talking about. One is the case that
<v Speaker 4>was heard a number of weeks ago about the firing
<v Speaker 4>of the Federal Trade Commissioner, and the question in particular
<v Speaker 4>was whether or not the law that says you can
<v Speaker 4>only be fired for cause in that case is constitutional
<v Speaker 4>and under the theory of the unitary executive, which we've
<v Speaker 4>talked a lot about, the Trump administration is trying to
<v Speaker 4>argue that you can't keep the president from hiring and
<v Speaker 4>firing for political reasons, and that this law passed by
<v Speaker 4>Congress that says that you neque cause is unconstitutional. So
<v Speaker 4>that's level one, and that's what the president's ultimately trying
<v Speaker 4>to achieve. And the reason he thinks, by the way,
<v Speaker 4>that he can fire a Federal Reserve governor, why he
<v Speaker 4>could fire the head of the Federal Reserve, Jerome Powell,
<v Speaker 4>is because he thinks that these laws like in the
<v Speaker 4>Federal Trade Commission or in the Federal Reserve, that limit
<v Speaker 4>the president's power to hire and fire for any reason,
<v Speaker 4>including political reasons, that those are all unconstitutional. Yes, But
<v Speaker 4>then we've got this second case that's going to be
<v Speaker 4>argued Wednesday, January twenty first, so people will be listening
<v Speaker 4>to this after it's been argued. And what's going to
<v Speaker 4>happen on this case, this Wednesday case. We're recording this
<v Speaker 4>before the case happens, is a related question. It's directly
<v Speaker 4>about whether or not the president can fire at will
<v Speaker 4>for politically, for any reason, the member of the Federal Reserve.
<v Speaker 4>But here he's saying he's got a reason that does
<v Speaker 4>fit with the law, that the law says you need
<v Speaker 4>cause or you need dereliction of duty, and that this
<v Speaker 4>Federal Reserve governor, Lisa Cook, has engaged in a kind
<v Speaker 4>of mortgage fraud and that that's the cause.
<v Speaker 2>Now, her response to this is Lisa Cook, by the way,
<v Speaker 2>this is Lisa Cook, who is the first black woman
<v Speaker 2>to ever be confirmed as a member of the Federal
<v Speaker 2>Reserve's Board of Governors by Joe Biden goohead exactly.
<v Speaker 4>And what she's saying is, well, first of all, I
<v Speaker 4>didn't do what you're accusing me of.
<v Speaker 3>But even if I did, this is an interesting part
<v Speaker 3>of the case.
<v Speaker 4>Even if I did, you know, Sorry, that's not about
<v Speaker 4>my job. That's something that took place outside the course.
<v Speaker 3>Of my duties.
<v Speaker 4>In fact, it happened, I think before she was on
<v Speaker 4>the Federal Reserve. But you see the general theme, right,
<v Speaker 4>I mean, the nuances I think are important that he
<v Speaker 4>wants to get rid of any constraint on political firing.
<v Speaker 4>But if he can't get rid of them, he wants
<v Speaker 4>to do an end run by pretending to find things
<v Speaker 4>like mortgage fraud to remove somebody. And she's saying, no,
<v Speaker 4>that's not what you're not saying. I did a bad job.
<v Speaker 4>That's what this law requires. So we've got these two
<v Speaker 4>cases which are really about the same thing, the independence
<v Speaker 4>of the Federal Reserve and the Federal Trade Commission and
<v Speaker 4>the ability of the president or not to fire people
<v Speaker 4>based on political reasons. Sorry, that was a thicket of information.
<v Speaker 1>No, but it's important.
<v Speaker 2>It's important because the FED, we have to remember, it's
<v Speaker 2>an independent agency, unlike other agencies we know. You know,
<v Speaker 2>the FED is fun to through interests that's earned on
<v Speaker 2>securities at its own. Like that's how independent it is.
<v Speaker 2>It's not through Congress appropriating money for him. And as
<v Speaker 2>you said, it's got this seven member board of governors.
<v Speaker 2>And for whatever reason, Donald Trump has decided to go
<v Speaker 2>after the first and only black woman to ever be there.
<v Speaker 2>Joe Biden nominated Lisa Cook for a new fourteen year
<v Speaker 2>term in twenty twenty three. In the midst of all
<v Speaker 2>of this, You guys can go listeners can go and
<v Speaker 2>google the fact that Donald Trump is quite guilty of
<v Speaker 2>the very things he's been accusing Lisa Cook of doing.
<v Speaker 2>But Jerome Powell is really rallying members of Congress to
<v Speaker 2>defend the Fed's independence, which is something that FED shares
<v Speaker 2>in my lifetime, I've always avoided. What does that tell you, professor,
<v Speaker 2>that Powell feels he has no choice?
<v Speaker 4>Yeah, I think that it's such an interesting dynamic. You know,
<v Speaker 4>we've got the legal case and I'm not sure how
<v Speaker 4>either of these cases are going to come out. I
<v Speaker 4>think there's a very good chance actually that they're going
<v Speaker 4>to get rid of these requirements of independence, at least
<v Speaker 4>in the Federal Trade Commission case. I should say too,
<v Speaker 4>that part of the argument for independence is Congress that
<v Speaker 4>you know, it's the same theme that we were talking
<v Speaker 4>about before. Congress has to find ways of asserting its
<v Speaker 4>authority and defending itself and its laws against the president
<v Speaker 4>who would destroy them. And one of the main ways
<v Speaker 4>it does that is the creation of these independent agencies,
<v Speaker 4>which includes both the Federal Trade Commission and as you said,
<v Speaker 4>the Federal Reserve. So, you know, traditionally courts were the answer.
<v Speaker 4>How are we going to fight? Well, fight in court.
<v Speaker 4>You can't do that, you know, that's a simple answer.
<v Speaker 4>And that's what I would have said, you know, when
<v Speaker 4>Trump was running the first time in twenty sixteen, in
<v Speaker 4>these issues first arose about canny fire, the head of
<v Speaker 4>the Federal Reserve.
<v Speaker 3>But what do you do if courts aren't there for you?
<v Speaker 4>Wow, Jerome Powell is answering that he's politically savvy enough
<v Speaker 4>that he's been courting members of Congress, he has allies,
<v Speaker 4>and far from the tradition of complete independence in the
<v Speaker 4>sense of not speaking out against the presidents, certainly just
<v Speaker 4>doing the job. He knows that won't work. So he's
<v Speaker 4>slamming Trump. He's slamming the attack on him. Of course,
<v Speaker 4>one thing that we can ask Glenn Kershner about is
<v Speaker 4>that now the Department of US as being used to
<v Speaker 4>investigate him, and that we've talked about this too, the
<v Speaker 4>supposedly supposed fraud that he's engaged in construction complete bs
<v Speaker 4>of course, so he's fighting back, I think realizing the
<v Speaker 4>courts aren't necessarily going to be the place for vindication,
<v Speaker 4>and in the same way, to tie the themes together
<v Speaker 4>that impeachment is a way of Congress protecting itself. Powell
<v Speaker 4>is in the most direct way, speaking out, using his
<v Speaker 4>own voice, his own status, to slam this attack on Well,
<v Speaker 4>it's not just an attack on the rule of law
<v Speaker 4>or an attack on independent agencies. It is an attack
<v Speaker 4>on democracy.
<v Speaker 2>So before we get to the break, I want to
<v Speaker 2>quickly hit on Greenland because this story's not going away,
<v Speaker 2>and I wish it will with the acknowledgement that Donald
<v Speaker 2>Trump is never going to actually invade Greenland. But let's
<v Speaker 2>talk about this trifling fool because the tariff case might
<v Speaker 2>be decided this week by the Supreme Court, and suddenly
<v Speaker 2>the tariff case intersects with Donald Trump's threat to tariff
<v Speaker 2>people who block his takeover of Greenland, which he will
<v Speaker 2>never commit troops to do. This is getting messier and messier.
<v Speaker 2>People already know. Trump wrote a deeply insane letter to
<v Speaker 2>the head of President of Norway, who he seems to
<v Speaker 2>believe is on the Nobel Committee, who he seems to
<v Speaker 2>believe has something to do with Greenland. And then Trump
<v Speaker 2>admits in a private phone call that his whole tariff
<v Speaker 2>blow up on the European countries might be because he
<v Speaker 2>was just given bad information about European troop deployments to Greenland. So,
<v Speaker 2>I mean, this is getting crazy constitutionally, how dangerous is
<v Speaker 2>this convergence that, right when he's flirting with sending troops
<v Speaker 2>to invade another country that hasn't attacked us to take
<v Speaker 2>away their resources. By the way, you hear much about
<v Speaker 2>the drugs out of Venezuela anymore. It's just the oil.
<v Speaker 2>Greenland is not about anything but just stealing what's under
<v Speaker 2>their ground. I mean, how scary is this? And what
<v Speaker 2>are the limits constitutionally on a president using tariff's not
<v Speaker 2>for trade policy, but again to punish other countries for
<v Speaker 2>diplomatic resistance to his illegal trifles.
<v Speaker 4>Well, as listeners know, and you know I've been involved
<v Speaker 4>in the tariff case, I helped write an amicus and
<v Speaker 4>file an amicus brief arguing that you know, no taxation
<v Speaker 4>without representation means that the tariff power rests with Congress,
<v Speaker 4>not with the president. Now, why is that such a
<v Speaker 4>fundamental principle that Congress decides whether it's not that tariffs
<v Speaker 4>are unconstitutional just has.
<v Speaker 3>To be deliberated on.
<v Speaker 4>It's because the main powers can't just rest with the
<v Speaker 4>dictator acting unilaterally. And if you allowed the tariff power
<v Speaker 4>to combine with the president's ability to engage in diplomacy and.
<v Speaker 3>Threats of war, he's also not.
<v Speaker 4>Supposed to engage in but we know that this president
<v Speaker 4>is doing that. Well, it starts to give up all
<v Speaker 4>of the power of democracy to one person and to
<v Speaker 4>allow a kind of dictatorship and imperial dictatorship where you're
<v Speaker 4>using the power of tariffs, the power of economic sanction
<v Speaker 4>at will. And you know, I think the Framers didn't
<v Speaker 4>want that. They wanted in a democracy, questions of war
<v Speaker 4>certainly to be deliberated upon by Congress, and relatedly, questions
<v Speaker 4>of tariffing or taxation in that sense to be.
<v Speaker 3>Deliberated by Congress.
<v Speaker 4>So what he's doing is this sort of realizing the
<v Speaker 4>worst fears of the Framers that these two powers of
<v Speaker 4>tariff power and the war power could be abused, and
<v Speaker 4>you know that's why we've got to reclaim both. Hopefully
<v Speaker 4>this tariff case will put a limit on his ability
<v Speaker 4>to unilaterally impose these teriffs as well.
<v Speaker 3>Wow, that's cool arguing.
<v Speaker 2>Yeah, I don't want to keep Glenn Kirshner waiting in
<v Speaker 2>the lobby too long. But let me just ask you
<v Speaker 2>one more question. I mean, this whole thing seems to
<v Speaker 2>just it's just pushing us closer to this pre constitution
<v Speaker 2>model of a monarch. I mean, the president just pursues
<v Speaker 2>territory and demands his tribute, and we seem to be
<v Speaker 2>watching that right now. What role, Corey, is the Supreme
<v Speaker 2>Court supposed to play when a president's impulses turn imperial
<v Speaker 2>and unconstitutional?
<v Speaker 4>Well, you know, when you add it all up, that's
<v Speaker 4>exactly the threat here that you know, you have this
<v Speaker 4>caisse about terroriffs. We talked about Lisa Cook we talked
<v Speaker 4>about the Federal Trade Commission, we talked about gnomes abuse.
<v Speaker 4>Each one of them is not a threat to democracy necessarily,
<v Speaker 4>but if you add them up, it's a huge threat.
<v Speaker 3>And the role of the Court.
<v Speaker 4>Certainly, the Court is not going to limit the president's
<v Speaker 4>war power. Unfortunately, it has this political question doctrine. It's
<v Speaker 4>not going to get involved in military questions like that,
<v Speaker 4>even though it should in my opinion. But I'm hopeful anyway,
<v Speaker 4>we'll see. I might be wrong that the Court is
<v Speaker 4>going to protect the terrorf power because to me, no
<v Speaker 4>taxation without representation.
<v Speaker 3>We all learn that in seventh grade Civics. That's like
<v Speaker 3>the core power.
<v Speaker 4>Of Congress, and so you know in that area, I'm
<v Speaker 4>still hopeful it will assert itself as of January twenty first,
<v Speaker 4>we'll see I might be wrong.
<v Speaker 2>All right, Listen, folks, we got to take a break.
<v Speaker 2>I know it sounds bleak out there, but just remember
<v Speaker 2>the world is repulsed by this stocks just at a
<v Speaker 2>two percent dip, the biggest of a month over the
<v Speaker 2>Greenland fear. This guy's not getting more popular. His tie
<v Speaker 2>rates are not getting more popular. Please, folks, stay calm.
<v Speaker 2>If you get stressed don't forget stop and spell the
<v Speaker 2>train wreck quick break back in just a moment with
<v Speaker 2>the great Glenn Kirshner and the great Corey Bretschneider, and
<v Speaker 2>I'll be the guy telling jokes.
<v Speaker 1>This is the Oath in the Office. Don't go away.
<v Speaker 5>Hey all Clenn Kershner here, friends, I hope you'll join
<v Speaker 5>me on my audio podcast, Justice Matters. We talk about
<v Speaker 5>not only the legal issues of the day, but we
<v Speaker 5>also talk about the need to reform ethics in our government.
<v Speaker 3>Here's one example.
<v Speaker 5>The Oath of Office, you know, the one I do
<v Speaker 5>solemnly swear to support and defend the Constitution against all enemies,
<v Speaker 5>foreign and domestic. Let's add twenty two words to that
<v Speaker 5>oath quote, and I will promptly report any instances of
<v Speaker 5>crime and or corruption by government officials and employees of
<v Speaker 5>which I've become aware. Friends, our democracy is worth fighting for.
<v Speaker 5>Join us in this.
<v Speaker 1>Because justice matters.
<v Speaker 5>Look for Justice Matters wherever you ordinarily find your podcasts.
<v Speaker 2>Welcome back to the Oath in the Office. I'm John Fiegel,
<v Speaker 2>saying Professor Bretschneider. I am so excited that this next
<v Speaker 2>guest has returned to the podcast. In spite of as
<v Speaker 2>many reasons to want to avoid me. Glenn Kirshner is
<v Speaker 2>a hero to anybody in the Internet age who cares
<v Speaker 2>about justice in this country. He has taken the skills
<v Speaker 2>he learned as a military prosecutor and jag to call
<v Speaker 2>out injustice, to call out real time constitutional violations, in
<v Speaker 2>my opinion from a conservative point of view, on our airwaves,
<v Speaker 2>and it's a blessing anytime we can talk to him.
<v Speaker 2>I was really blessed to have Glenn do a talk
<v Speaker 2>back with me at a special we did for my
<v Speaker 2>book in DC a few months ago. And Corey, I'm
<v Speaker 2>always excited anytime I can be around Glenn because I
<v Speaker 2>look dumb next to you, but I look extremely dumb
<v Speaker 2>next to him.
<v Speaker 3>I love it.
<v Speaker 4>And of course we've had a few return guests, but
<v Speaker 4>not many. And at the top of our list certainly
<v Speaker 4>was Glenn Kirshner, who joined us very early on when
<v Speaker 4>we launched the Oath in the Office, and the issues
<v Speaker 4>that we've been talking about, the attack on our democracy,
<v Speaker 4>on free speech, on the very rule of law, far
<v Speaker 4>from going away, have just gotten more worrisome and more increased.
<v Speaker 4>And of course Glenn spent a long period of time
<v Speaker 4>in the Department of Justice and is in many ways
<v Speaker 4>as much as he is a renowned commentator and insider
<v Speaker 4>who knows the intricacies of the Department of Justice. A
<v Speaker 4>very different department of Justice, I take it from the
<v Speaker 4>one that we see now. So Glenn and just launching us,
<v Speaker 4>I mean, I really want to ask you about the
<v Speaker 4>weaponization of the Department of Justice and what we're seeing
<v Speaker 4>from the attacks on Comy and James, in particular, the
<v Speaker 4>resignations of a number of Department of Justice lawyers from
<v Speaker 4>the Civil Rights Division related to the attack on citizens
<v Speaker 4>in Minnesota, And to ask you the general question, I mean,
<v Speaker 4>what do you make of those who are there. I
<v Speaker 4>have a lot of former students who are in the
<v Speaker 4>Department of Justice. I know you have a lot of colleagues.
<v Speaker 4>Where's the line of resignation? I mean, when did you
<v Speaker 4>send that letter in When do you give up? When
<v Speaker 4>do you stop fighting from the inside for what's right?
<v Speaker 5>Yeah, so that's an intensely personal decision. I had lots
<v Speaker 5>of friends and former colleagues contact me really right after
<v Speaker 5>they received the Fork in the Road email from Elon
<v Speaker 5>Musk and his minions, saying you know, why don't you
<v Speaker 5>leave your low productivity government job in favor of a
<v Speaker 5>high productivity private sector job. Nothing could be more insulting
<v Speaker 5>to career public servants who were in that job not
<v Speaker 5>for the money, but for the mission, because we were
<v Speaker 5>representing the interests of the American people. And I had
<v Speaker 5>so many friends call and say, you know, Glenn, can
<v Speaker 5>you talk through this with me. It's an intensely personal decision.
<v Speaker 5>Do you stay and fight, perhaps only to be unlawfully
<v Speaker 5>terminated and then have to spend the next couple of
<v Speaker 5>years fighting your wrongful termination in court? Or do you
<v Speaker 5>opt out? Do you say, I can't be part of
<v Speaker 5>this evil, lawless regime, so I am leaving. Everybody made
<v Speaker 5>the best decision they could, of course, the ones who
<v Speaker 5>tried to stay, like people in the Civil Rights Division,
<v Speaker 5>and I would love to talk about the abdication of
<v Speaker 5>the Civil Rights Division's solemn duty to investigate officer involved
<v Speaker 5>shootings resulting in death, but you know, they made their
<v Speaker 5>own decision. So you know, I understand not being able
<v Speaker 5>to work for the regime. I couldn't. I served under
<v Speaker 5>every president continuously, from Ronald Reagan to Trump in his
<v Speaker 5>first term, and I got out about halfway through Trump's
<v Speaker 5>first term. I don't think I could have served in
<v Speaker 5>Trump's second term at the Department of Justice. So there
<v Speaker 5>are a couple of things. One, the hollowing out of
<v Speaker 5>DOJ is not so much a brain drain but an
<v Speaker 5>ethics drain, and that presents real problems because you have
<v Speaker 5>these flunky lawyers who apparently you have no concern for
<v Speaker 5>their license to practice law because they're going into federal
<v Speaker 5>courts and they're doing Pambondi and Donald Trump's dirty bidding,
<v Speaker 5>and the federal judges are calling them out and saying
<v Speaker 5>you're making misrepresentations. Do you, gentlemen, know that once a
<v Speaker 5>federal judge says that you are automatically going to be
<v Speaker 5>referred to your state bar council for an ethics investigation,
<v Speaker 5>and it could result in sanctions up to and including disbarment.
<v Speaker 5>So in normal times, in normal but well, but remember,
<v Speaker 5>every attorney who is a federal prosecutor holds a state
<v Speaker 5>law license. There's no such thing as a federal law license.
<v Speaker 5>So they will all end up being referred to bar
<v Speaker 5>council in their states. And generally the state bar council
<v Speaker 5>are independent of the federal government and of Donald Trump,
<v Speaker 5>and they have a real interest in policing the ethics
<v Speaker 5>of the attorneys that are admitted to practice in their state.
<v Speaker 5>So that's how Juliani ended up being disbarred in both
<v Speaker 5>jurisdictions where he held law licenses in Kenneth chesbro and
<v Speaker 5>John Eastman and Jeffrey Clark and all of these people.
<v Speaker 5>So you know that is coming for today's batch of
<v Speaker 5>dirty DOJ lawyers. But the other thing is, there are
<v Speaker 5>about one hundred and ten to one hundred and fifteen
<v Speaker 5>thousand employees at the Department of Justice they've managed to
<v Speaker 5>dislodge or folks have self selected about twenty twenty five thousand.
<v Speaker 5>You know, there are still great career public servants who
<v Speaker 5>are hunkered down trying to do the work of the
<v Speaker 5>American people. And I hope that that will make the
<v Speaker 5>rebuilding mission when the rule of law comes back into
<v Speaker 5>the light of day, not easy, but at least possible.
<v Speaker 4>What do you think, Glenn, Just following up on that
<v Speaker 4>point about disparment, which I think is so important as
<v Speaker 4>we start to think about what the incentives and disincentives
<v Speaker 4>of doing evil are, and certainly a lot of the
<v Speaker 4>people including those that we've been focused on the Department
<v Speaker 4>of Justice. I believe our well intentioned want our career prosecutors,
<v Speaker 4>many of them want to do their job. These heroes
<v Speaker 4>who resign the five in regard to Minnesota exemplify that.
<v Speaker 4>We've seen others refusing to do the bidding of this administration.
<v Speaker 4>But you know, Trump has figured out, and Pam Bondi
<v Speaker 4>has figured out, and Pam Bondi yourself is an example
<v Speaker 4>that if you really want people to do your bidding,
<v Speaker 4>look for people who care about loyalty and are loyal
<v Speaker 4>over the rule of law and caring about the rule
<v Speaker 4>of law. So that's what I guess I wanted to ask.
<v Speaker 4>It's a follow up question about the disbarment. I mean,
<v Speaker 4>is it that there's just a lack of awareness by
<v Speaker 4>Pam Bondy or by some of her let's call them cronies,
<v Speaker 4>that they might face that in the end for doing
<v Speaker 4>things like attacking the president's political opponents in court, Like
<v Speaker 4>what's going on? Can you think your way into those
<v Speaker 4>who are less moral than the ones that we want
<v Speaker 4>to focus on, And what's.
<v Speaker 5>I think power and proximity to power is intoxicating. You know,
<v Speaker 5>maybe some of these people had some moral center, but
<v Speaker 5>they've loved their way. Maybe they never had their moral center.
<v Speaker 5>I will say, over my thirty years as a prosecutor,
<v Speaker 5>I prosecuted a lot of folk who were just kind
<v Speaker 5>of bad to the core and ended up living a
<v Speaker 5>life of crime. I think some of these people are
<v Speaker 5>so drunk with the proximity to power and they feel
<v Speaker 5>bulletproof in the moment. Why Because Donald Trump has that
<v Speaker 5>pardon power that the Supreme Court has said is a
<v Speaker 5>core constitutional function that nobody can question. And I think
<v Speaker 5>the Pam Bondis of the world fully expect to be
<v Speaker 5>delivered a pardon on Donald Trump's last day in office,
<v Speaker 5>such that all of the crimes, and I do believe
<v Speaker 5>that they are violating federal law and violating the constitutional rights.
<v Speaker 5>For example, of the people of Minnesota. At the moment,
<v Speaker 5>I think they believe they're going to get away with it,
<v Speaker 5>so they're willing to do things that they otherwise might
<v Speaker 5>not have been willing to to do because they know
<v Speaker 5>they're going to get that pardon. They may already have
<v Speaker 5>the pre printed pardon in their bottom desk drawer ready
<v Speaker 5>to go.
<v Speaker 2>So let me ask you about that. Glenn because this
<v Speaker 2>is not the DOJ. To me, it seems like it's
<v Speaker 2>the Department of Presidential Protection and Retribution. Pam Bondy. From
<v Speaker 2>your vantage point, You've worked under a lot of presidents.
<v Speaker 2>You've also worked under a lot of attorneys general. What
<v Speaker 2>makes her tenure different from other biased partisan attorneys general
<v Speaker 2>you served under? And even with a full federal Trump pardon,
<v Speaker 2>Pam Bondi can still be disbarred right or even prosecuted
<v Speaker 2>in the state of Minnesota.
<v Speaker 5>Yes, So, first of all, any violation of state law
<v Speaker 5>is pardon proof. It is beyond the reach of a
<v Speaker 5>presidential pardon. And as you say, pardons have absolutely no
<v Speaker 5>applicability to bar council investigations and disbarment of attorneys. So
<v Speaker 5>you know she's gonna get got on some front, I
<v Speaker 5>believe for what she's doing. I don't know what makes
<v Speaker 5>Pam Bondy as lawless as she is proving to be.
<v Speaker 5>But you know, she really started early on when on
<v Speaker 5>day one, after being sworn in, she said, now let
<v Speaker 5>me unroll and announce my enemy's list. These people did
<v Speaker 5>Donald Trump wrong, and these are the people we're going
<v Speaker 5>to open investigations into. I didn't see that coming. I
<v Speaker 5>thought she would at least pretend to be a legitimate
<v Speaker 5>Attorney general for some period of time and maybe do
<v Speaker 5>this kind of in closed closed door rooms. But she
<v Speaker 5>was all in from jump. So but I can't explain why.
<v Speaker 2>If I may, it was long before day one she
<v Speaker 2>personally solicit a twenty five thousand dollars contribution from Trump
<v Speaker 2>when she was Florida Attorney General thirteen years ago, while
<v Speaker 2>her office was weighing whether they were joined the lawsuit
<v Speaker 2>against the scam Trump University. So she signaled, you know
<v Speaker 2>early on. I mean, when Trump appointed her, he was
<v Speaker 2>letting the world know this ag takes bribes, and.
<v Speaker 5>Unfortunately John, none of the Republican members of Congress really
<v Speaker 5>cared to perform their duty in confirmation hearings to make
<v Speaker 5>sure that we were only getting good quality, honorable, ethical
<v Speaker 5>people in Donald Trump's cabinet. So, you know, we have
<v Speaker 5>an entire political party that, for whatever reason, is willing
<v Speaker 5>to give away our republic and they are proving that
<v Speaker 5>day after day as Donald Trump begins to ratchet up
<v Speaker 5>the dangerousness, the abuse of office, the abuse of military power,
<v Speaker 5>and yet we've got a Republican party lying dormant in Congress.
<v Speaker 5>I continue to hope that changes, maybe hoping against hope,
<v Speaker 5>but you know, that's one of the ways Donald Trump
<v Speaker 5>could be stopped.
<v Speaker 4>What do you think, Glenn pivoting to the prosecutions of
<v Speaker 4>James and Comy and generally the president's desire for revenge
<v Speaker 4>and retribution. You know, one argument is, regardless of what happens,
<v Speaker 4>there's already damage done, killing effect that comes from seeing
<v Speaker 4>these indictments in the first place, regardless of whether they
<v Speaker 4>get through. But in a normal justice department, we never
<v Speaker 4>would have been at this point. We would have had
<v Speaker 4>the Attorney General say to the president, that's not how
<v Speaker 4>this works. There's an the Department of Justices technically within
<v Speaker 4>the executive branch, but it's independent and you can't use it.
<v Speaker 4>It's meant to it's not the president's personal retribution for us.
<v Speaker 4>It's meant to be independent, devoted to the rule of law.
<v Speaker 4>We're past that because of the back and forth that
<v Speaker 4>you just had with Bondi. She did go along with this,
<v Speaker 4>He did get at least at one point, indictments in
<v Speaker 4>these two cases.
<v Speaker 3>Now there's been pushed back.
<v Speaker 4>And we have the judiciary itself and it's independence, but
<v Speaker 4>I'm wondering. I mean, in these cases, do you think
<v Speaker 4>that we might actually see the successful prosecution even of
<v Speaker 4>some of these opponents, or are you do you still
<v Speaker 4>have faith that the independence of the judiciary or other checks,
<v Speaker 4>including those that are remaining within the Department of Justice might.
<v Speaker 5>Hold so for a very long time, you know, Donald
<v Speaker 5>Trump has been threatening to prosecute people. Who is the
<v Speaker 5>og of Donald Trump's prosecutorial wrath, Hillary Clinton. Lock her up,
<v Speaker 5>Lock her up. And you know, for a decade we
<v Speaker 5>heard that, and he was always threatening his opponents right
<v Speaker 5>with prosecution and with jail. That went on for ten
<v Speaker 5>years before he finally found a conciliary at the Department
<v Speaker 5>of Justice and Bambondi who would do his criminal bidding.
<v Speaker 2>Because I'm sorry, Lend, but under Jeff Sessions, they declared
<v Speaker 2>there was no case against Hillary Clinton, and right wing
<v Speaker 2>media never reported this to the Trump fan base.
<v Speaker 1>I'm so sorry, go on.
<v Speaker 5>You know that's okay. So a couple of years ago now,
<v Speaker 5>John I started saying, I'm looking forward to the first
<v Speaker 5>vindictive prosecution Donald Trump actually has his Department of Justice
<v Speaker 5>bring because I have such faith in the judiciary that
<v Speaker 5>they will not stand for it my words were, and
<v Speaker 5>this was a couple of years ago. I said it
<v Speaker 5>early and often the judiciary will cram those vindictive prosecutions
<v Speaker 5>figuratively speaking, down the throat of Donald Trump's dirty doj
<v Speaker 5>and that is like a blind mouse bumps into a
<v Speaker 5>piece of cheese every now and then. That was a
<v Speaker 5>prediction I got right. And I do not believe for
<v Speaker 5>a minute that they will successfully resurrect these vindictive prosecutions
<v Speaker 5>against James Comy or La James. And what has that done.
<v Speaker 5>It's exposed Donald Trump as the paper tiger he is.
<v Speaker 5>He can threaten prosecutions all day long, but he can't
<v Speaker 5>follow through. He will not successfully prosecute Jerome Powell. He's
<v Speaker 5>got his imbecile hack US Attorney Janine Piro, who can
<v Speaker 5>indict a hamm sandwich no matter how many condiments he
<v Speaker 5>throws on it. And the only one that I put
<v Speaker 5>in a different category is John Bolton, because the people
<v Speaker 5>who indicted John Bolton are career prosecutors at the US
<v Speaker 5>Attorney's off for the District of Maryland. It appears they
<v Speaker 5>have the goods on him, at least based on the indictment.
<v Speaker 5>If they can prove what they put in the indictment.
<v Speaker 5>It looks like Bolton probably violated the law John in
<v Speaker 5>much the same way that General David Portraeus violated the
<v Speaker 5>law and he was prosecuted and held accountable for it.
<v Speaker 5>And I don't feel bad for General Petraeus. He served
<v Speaker 5>the country honorably. But if you're going to write a book,
<v Speaker 5>don't compromise classified information. And it looks like John Bolton
<v Speaker 5>did something quite similar. So he may be successfully prosecuted. Interestingly,
<v Speaker 5>it will still be a vindictive prosecution. I say that
<v Speaker 5>because the Biden Department of Justice also investigated him ultimately
<v Speaker 5>decided not to bring charges, maybe not because he didn't
<v Speaker 5>technically violate the law, but because we don't prosecute every
<v Speaker 5>case where somebody violated the law. If we did, we
<v Speaker 5>would run out of resources in twenty four hours. So
<v Speaker 5>it was still vindictively brought. But that doesn't mean there
<v Speaker 5>wasn't a factual basis to bring the prosecution.
<v Speaker 3>So of these.
<v Speaker 5>Vindictive prosecutions are not going to succeed, and that will
<v Speaker 5>weaken Donald Trump, not strengthen him.
<v Speaker 4>It is an interesting case in the Bolton case, which
<v Speaker 4>we've talked about as well, where you have independent prosecutors
<v Speaker 4>who are prosecuting what looked to be you know, problematic
<v Speaker 4>facts of crime. But you also have a motivation of
<v Speaker 4>a president pushing for these prosecutions simply because of political reasons.
<v Speaker 4>One you know question there, I guess, is whether or
<v Speaker 4>not there's a taint that comes from the fact that
<v Speaker 4>you know, there are all sorts of crimes that aren't prosecuted,
<v Speaker 4>the fact that these are being pushed so hard because
<v Speaker 4>of the president's vindictiveness. I mean, so I invite you
<v Speaker 4>to respond to that, But also I'm also wondering about
<v Speaker 4>another just where the I mean, I agree with you,
<v Speaker 4>I don't think that we're going to see James and
<v Speaker 4>COMI the most purely political prosecutions go to prison. But
<v Speaker 4>I do think there's a puzzle about where it will stop.
<v Speaker 3>And I think, you know, years ago you.
<v Speaker 4>And I would have said, well, it'll stop with the
<v Speaker 4>attorney general.
<v Speaker 3>That's not happening.
<v Speaker 4>Maybe it'll stop with career prosecutors. Not clear, because so
<v Speaker 4>many of them have been some of them, I should say,
<v Speaker 4>have been corrupted. So is it the judiciary there that's
<v Speaker 4>doing the work. So that is a double question then yeah.
<v Speaker 5>Yeah, yeah, So first of all, the judiciary is the
<v Speaker 5>point of light amidst the Trump induced darkness. And we
<v Speaker 5>could talk more about that, including many of the Trump
<v Speaker 5>appointed judges who have ruled hard against Donald Trump. But
<v Speaker 5>you know, to go back to the vindictive prosecution piece.
<v Speaker 5>You know, I'm sure the viewers know that the courts
<v Speaker 5>didn't even get to the motion to the smiths based
<v Speaker 5>on vindictive prosecution. They didn't even get to that far
<v Speaker 5>in the litigation. Why because Lindsay Halligan, who was no
<v Speaker 5>more US Attorney for the Eastern District of Virginia than
<v Speaker 5>was Bugs Bunny into the grand jury, having no lawful
<v Speaker 5>authority to set foot in the grand jury, twisted arms.
<v Speaker 5>I infer because she walked out with indictments that no
<v Speaker 5>subsequent prosecutor has been able to get. And what happened, well,
<v Speaker 5>the judge ruled that she was not US attorney, she
<v Speaker 5>was not lawfully authorized to obtain indictments, and dismissed the
<v Speaker 5>indictments before they ever got to the vindictive prosecution motion
<v Speaker 5>to dismiss. You know, Lindsay Halligan may have been one
<v Speaker 5>heck of a beauty pageant contestant, but somebody should have
<v Speaker 5>told her. You know, there's no swimsuit competition in the
<v Speaker 5>grand jury. Lindsay, well, you don't know how she got
<v Speaker 5>the job.
<v Speaker 2>Glenn, let's not judge, but can I can I ask
<v Speaker 2>about your career because I'm fascinated by the many years
<v Speaker 2>you spent as a federal prosecutor and earlier as a
<v Speaker 2>judge appic at general and what drew you to public service.
<v Speaker 2>I'm curious how did your experience in the military justice
<v Speaker 2>system shape your understanding of accountability, chain of command, the
<v Speaker 2>idea that no one, even powerful people, are above the
<v Speaker 2>law in the military justice system. Glenn, how seriously is
<v Speaker 2>independence from political pressure taken?
<v Speaker 5>Interesting? Great question, and thank you for asking that. You know,
<v Speaker 5>I was always drawn to a public service, and it
<v Speaker 5>started in the military back in the eighties when I
<v Speaker 5>joined the Army as an army jag. My pop had
<v Speaker 5>served in the army, and I always knew I had
<v Speaker 5>an interest in both military service because kind of serving
<v Speaker 5>a cause bigger than myself and trying to help others.
<v Speaker 5>And you know, I was a little bit naive and
<v Speaker 5>wide eyed and red, white and blue, and we're the
<v Speaker 5>good guys for all reasons. Unfortunately, our government were now
<v Speaker 5>the bad guys at least the leadership of the executive
<v Speaker 5>branch these days. But you know, in the military, we
<v Speaker 5>didn't call it political pressure. We called it command influence.
<v Speaker 5>What does that mean. It means if the commanding general
<v Speaker 5>of the military unit or post or installation where I
<v Speaker 5>was a prosecutor, had I was going to use an
<v Speaker 5>indelicate term, had a bone to pick with a particular
<v Speaker 5>soldier because he or she committed some crime. It made
<v Speaker 5>the military look bad, it made the division look bad.
<v Speaker 5>The commander couldn't be in a position to say I
<v Speaker 5>want that person, I want that soldier prosecuted. That was
<v Speaker 5>akin to a president saying I want somebody prosecuted. That's
<v Speaker 5>not the way systems of justice, whether military or civilian,
<v Speaker 5>are supposed to work. So we had lots of safeguards
<v Speaker 5>in place to guard against what we called command influence,
<v Speaker 5>because we wanted to make sure if we were going
<v Speaker 5>to court martial the soldier, and I court martialed many
<v Speaker 5>a soldier, that we were doing it fairly. We were
<v Speaker 5>doing it without fear or favor. We were only doing
<v Speaker 5>it based on the law and the facts. And then
<v Speaker 5>it would be tried to either a jury, which we
<v Speaker 5>called a panel or a judge, and it was a
<v Speaker 5>People may not know this, and they may find it
<v Speaker 5>hard to believe it. In my experience, is an extraordinarily
<v Speaker 5>fair system of justice that really honors the rights of
<v Speaker 5>the defendant. We don't call them the defendant, we call
<v Speaker 5>them the accused. The military and I was so well
<v Speaker 5>framed as an army prosecutor and army jag that I
<v Speaker 5>think that experience and that foundation served me really well
<v Speaker 5>when I decided to leave military service and shift over
<v Speaker 5>to the Department of Justice.
<v Speaker 4>I wanted to ask you, also drawing on your career
<v Speaker 4>in this part of it in the Department of Justice,
<v Speaker 4>about Robert Muller, and you know, one of the huge differences,
<v Speaker 4>and of course he worked very closely with Robert Muller
<v Speaker 4>and know him extremely well, work for him, as I
<v Speaker 4>understand for a number of years. One of the huge
<v Speaker 4>differences between Trump one point zero and two point zero
<v Speaker 4>is it's very hard to imagine the kind of rigorous
<v Speaker 4>investigation into wrongdoing in the interference in the twenty sixteen election.
<v Speaker 4>But also, of course, as part two of the Muller
<v Speaker 4>Report talks about the obstruction of justice, at least ten
<v Speaker 4>instances of possible obstruction of justice by Trump, even the
<v Speaker 4>fathoming within Pam Bondi's department, that kind of investigation happening.
<v Speaker 3>It's it's kind of hard to imagine.
<v Speaker 4>You see the difference, I think between the hollowing out
<v Speaker 4>of the Department of Justice now and the more robust
<v Speaker 4>Department of Justice then. But I still want to ask
<v Speaker 4>you a main question that I think is still on
<v Speaker 4>a lot of our listeners' minds, which is, you know
<v Speaker 4>what happened with Robert Mueller. So many people, you know,
<v Speaker 4>there were t shirts and just hope that there would
<v Speaker 4>be an indictment, that there would be justice served for
<v Speaker 4>the wrongdoing by Trump. You know, ten instances of criminal
<v Speaker 4>obstruction that looked like enough for prosecution, and so many
<v Speaker 4>of us were hoping for that.
<v Speaker 3>So what wasn't in his mind?
<v Speaker 4>Of course, you know, he testified before Congress, but that
<v Speaker 4>didn't I think go as well as he might have hoped.
<v Speaker 4>I mean, what was in his mind? Why it wasn't
<v Speaker 4>there an indictment? Was there a worry about the Department
<v Speaker 4>of Justice and immunity. I thought that really impeachment was
<v Speaker 4>the right way to handle this issue. And you know,
<v Speaker 4>I'm asking you not just as a commentator now, but
<v Speaker 4>as somebody of course who knows the person at the
<v Speaker 4>center of that moment.
<v Speaker 5>So more intimately, well, yeah, so I stand on Bob
<v Speaker 5>Muller's shoulders. He was my chief of homicide in many respects.
<v Speaker 5>I think it's fair to say I was kind of
<v Speaker 5>his right hand guy for many reasons. In the office,
<v Speaker 5>he not only taught me how to handle homicide cases,
<v Speaker 5>but he taught me how to run the homicide section
<v Speaker 5>because he was chief. But a couple of years after
<v Speaker 5>he left, I became Chief of Homicide, so responsible for
<v Speaker 5>supervising and overseeing all murder cases in Washington, d C.
<v Speaker 5>So I think there are a couple of things involved
<v Speaker 5>in how the Mueller investigation and the Muller report played
<v Speaker 5>out and ended up playing out poorly in my opinion.
<v Speaker 5>But first I want to start with I think Bob
<v Speaker 5>Muller was such an old school guy. I mean, he
<v Speaker 5>was a war hero, dragging injured soldiers out of enemy fire.
<v Speaker 5>I mean he was the best, and I've said this before,
<v Speaker 5>the single best supervisor I ever had the honor of
<v Speaker 5>serving under. I think he may have still been living
<v Speaker 5>in nineteen seventy four, where he believed, and he never
<v Speaker 5>talked about this with me, but he believed that he
<v Speaker 5>if he delivered Volumes one end two to Congress, the
<v Speaker 5>Republicans in Congress would do precisely what the Republicans in
<v Speaker 5>Congress did in nineteen seventy four. They would have looked
<v Speaker 5>at it when the tapes were released in the Watergate era,
<v Speaker 5>they would have marched on the Oval Office. They would
<v Speaker 5>have said, mister President, you're done. Your own party will
<v Speaker 5>impeach you and remove you. And I think he was
<v Speaker 5>living in that time when he believed there was still
<v Speaker 5>honor in Congress and in the Republican Party, and he
<v Speaker 5>was a Republican, right, that was a miscalculation. I don't
<v Speaker 5>think any of us knew that the Republican Party would
<v Speaker 5>walk away from not only their own constituents but American
<v Speaker 5>democracy the way they have. I don't think we could
<v Speaker 5>have even envisioned that back then. I think that's part
<v Speaker 5>of what Bob Muller was thinking. But here's the second thing.
<v Speaker 5>Because DOJ had an Office of Legal Counsel memo with
<v Speaker 5>which I disagree, that says you can't prosecute a sitting
<v Speaker 5>criminal president. I can't think of anything better than prosecuting
<v Speaker 5>a sitting for a president, rather than let a criminal
<v Speaker 5>president run rough shot over the American people for four years.
<v Speaker 5>But that's just me so because he could not be
<v Speaker 5>prosecuted as of the time Bob Muller delivered his report
<v Speaker 5>to Congress. The next logical step is he gets prosecuted
<v Speaker 5>the minuity leaves office.
<v Speaker 3>Yes, and that couldn't have had exactly.
<v Speaker 5>Job to do, and he didn't do it. I would
<v Speaker 5>have walked. I would have walked into the federal judges
<v Speaker 5>chambers on day one, and I would have sought, you know,
<v Speaker 5>arrest warrants. Or I would have already had indictments in
<v Speaker 5>hand for Donald Trump for the crimes he had committed,
<v Speaker 5>and I would have doubled down for the January six
<v Speaker 5>crimes we saw him commit with our own damn eyes,
<v Speaker 5>and he would have been held accountable criminally on both
<v Speaker 5>of those fronts. That's what should have happened if we
<v Speaker 5>wanted to deter tomorrow's dictator. But we didn't. So look
<v Speaker 5>at what we've got, Corey.
<v Speaker 2>This is why I'm going to run for president, just
<v Speaker 2>to make Glenn Kirshner my attorney general. I'm sorry, I
<v Speaker 2>just can I defend Robert Muller for one second.
<v Speaker 5>Here.
<v Speaker 1>It's not popular, I.
<v Speaker 2>Know, and I'll always say, you know, Muller's team hired
<v Speaker 2>a money laundering guy, and then they didn't follow that lead.
<v Speaker 2>And if they had gone deep on Donald Trump's history
<v Speaker 2>and money laundering, I think a lot would be different
<v Speaker 2>right now. But I do want to say, in Muller's defense,
<v Speaker 2>he handed Congressional Democrats ten gift wrapped counts of obstruction
<v Speaker 2>of justice that no one's ever bothered on Republican side
<v Speaker 2>to try to refute because they're irrefutable. There's ten instances
<v Speaker 2>that Muller gave Congress of Trump breaking the law, obstructing justice.
<v Speaker 2>And when the Democrats decided to impeach him over cheating
<v Speaker 2>by blackmailing Zelenski, what was it?
<v Speaker 1>Two charges?
<v Speaker 2>They could have made a twelve, But it was the Democrats,
<v Speaker 2>once they had the majority, who chose to leave Robert
<v Speaker 2>Muller's gift and never use it. So as much as
<v Speaker 2>it's in vogue to say he didn't do what he
<v Speaker 2>was sent to do, the Democrats didn't do what he
<v Speaker 2>gave them the fuel to do.
<v Speaker 4>Yeah, we was both a sort of hope in bipartisanship
<v Speaker 4>of a kind actually that the Framers believed in too,
<v Speaker 4>and that, as you said, Glenn, that we saw during
<v Speaker 4>Watergate that if a president committed crimes that people would
<v Speaker 4>rise above party and they would you dig in.
<v Speaker 3>And not only did.
<v Speaker 4>We not see that, but as John says on the
<v Speaker 4>so much of the report really outlining the crimes. And
<v Speaker 4>my memory of part two of the Mueller report is
<v Speaker 4>that but for those DOJ memos that you mentioned talking
<v Speaker 4>about non indictability of a sitting president, there would have
<v Speaker 4>been an indictment. In other words, yes, there was enough
<v Speaker 4>to indict, and yet even the Democrats. That's such a
<v Speaker 4>good point did not dig in. There, I take it, Glenn.
<v Speaker 4>I mean, just as a follow up that you blame
<v Speaker 4>mar Garland, that all of this still did tee up
<v Speaker 4>because Garland did have the hindsight of seeing the failure
<v Speaker 4>of impeachment and there hadn't yet been a case saying
<v Speaker 4>that there was immunity for a former president, and arguably
<v Speaker 4>some of that immunity might have been gotten around too.
<v Speaker 3>So is that right?
<v Speaker 4>I mean, do you think that Garland really is to
<v Speaker 4>blame here for having seen Mueller's You know, well, intentioned
<v Speaker 4>way of doing things not work out or do you
<v Speaker 4>have a different way of seeing it?
<v Speaker 5>Yeah? No, I think he should have pursued the ten
<v Speaker 5>obstruction counts. I think he should have pursued the attack
<v Speaker 5>against American democracy that Donald Trump launched in the harsh
<v Speaker 5>light of day. Go to the Capitol. Fight like Keller,
<v Speaker 5>you won't have a country anymore. Stop the certification, stop
<v Speaker 5>the steal. I love that he used the word steel
<v Speaker 5>because he knew the election wasn't stolen, and that provides
<v Speaker 5>criminal intent. So I mean this. It was a lay
<v Speaker 5>down winner in this old prosecutor's opinion. But then he
<v Speaker 5>waited until the Senate finally had to put together a
<v Speaker 5>select committee to investigate the attack on the Capitol on
<v Speaker 5>January sixth. My friend Tim Heathey, the Chief Investigative Council,
<v Speaker 5>had to put together what was essentially a Rico investigation,
<v Speaker 5>you know as a congressional inquiry, and then presented to
<v Speaker 5>the American people before Merrick Garland said, wait a minute,
<v Speaker 5>I guess we need to look into.
<v Speaker 3>Those crimes too.
<v Speaker 5>That is the exact opposite of how prosecutors typically do business.
<v Speaker 5>We don't want congressional committees touching a damn thing until
<v Speaker 5>we can first investigate those crimes. And yet Merrick Garland,
<v Speaker 5>and again I don't think Merrick Garland is a bad guy.
<v Speaker 5>I think you know, he was well intentioned, you know,
<v Speaker 5>straight to the road to hell, right, And I think
<v Speaker 5>his main focus, misguided though it may have been, was
<v Speaker 5>enhancing rebuilding and enhancing the reputation of the Department of
<v Speaker 5>Justice after what Bill Barr and Donald Trump did to
<v Speaker 5>it the first time around. And I would say, Merrick,
<v Speaker 5>look at where that's gotten us.
<v Speaker 4>Yeah, yeah, I mean in the case of in the
<v Speaker 4>case of Mueller, you know, we have this way of
<v Speaker 4>thinking back into the way he was seeing it. We
<v Speaker 4>had the example of Watergame. But after we saw that failed,
<v Speaker 4>waiting for.
<v Speaker 3>Congress to take the lead, I mean, I guess too.
<v Speaker 4>By the time January sixth report well came out, it
<v Speaker 4>was there was really no choice. There was so much pressure,
<v Speaker 4>the evidence of a crime was so strong, and as
<v Speaker 4>you say, the American people had seen it. But it
<v Speaker 4>looks like the timeline was just too well, it was
<v Speaker 4>we know, too late, I think to it. It is
<v Speaker 4>an important point gleand that I don't want to lose
<v Speaker 4>this that although there was a real debate, and in fact,
<v Speaker 4>I think you and I and John talked about this
<v Speaker 4>when you were first on about whether or not sitting
<v Speaker 4>presidents could be indicted.
<v Speaker 3>It was so out of left.
<v Speaker 4>Field when Trump versus the United States came down that
<v Speaker 4>they read that former president you know, yes when it
<v Speaker 4>comes to their official duties, but still former were immune.
<v Speaker 4>I mean, just one of the worst decisions, not just
<v Speaker 4>of the Roberts Court, but if a mayor and history
<v Speaker 4>and as you say, just to emphasize it, you know,
<v Speaker 4>the Framers had a system that said, okay, you know,
<v Speaker 4>maybe impeachment first, but after removal, of course, indictment and yeah,
<v Speaker 4>but let's I.
<v Speaker 5>Mean, I think one of the things that gets lost
<v Speaker 5>in the presidential immunity ruling from the Supreme Court, which
<v Speaker 5>couldn't have a more appropriate caption Trump versus the United States,
<v Speaker 5>isn't that what we've been living through. But what people
<v Speaker 5>I think tend to forget or overlook is the Supreme Court, yes,
<v Speaker 5>they you know, ruled contrary to the express terms of
<v Speaker 5>the Constitution, like the take care clause to faithfully execute
<v Speaker 5>the laws of the nation, kind of the opposite of
<v Speaker 5>you can violate all the laws of the nation and
<v Speaker 5>victimize the American people and forever exactly. So it's a
<v Speaker 5>laughably unconstitutional decision. As Yale law professor Khiel read Omar said,
<v Speaker 5>they ruled that the constitution is unconstitutional and you can't
<v Speaker 5>can't do that. But here's the thing. When that opinion
<v Speaker 5>came down, it announced that there were three categories of conduct.
<v Speaker 5>And the core constitutional function like directing the military, absolute immunity,
<v Speaker 5>but official governmental acts, official acts of a president presumptive immunity,
<v Speaker 5>but prosecutors can rebut the presumption and you can go
<v Speaker 5>to trial. And then private acts like of the candidate
<v Speaker 5>trying to unlawfully retain the power of the presidency, no
<v Speaker 5>immunity for you. And where were we when Donald Trump
<v Speaker 5>won reelection. We were in the process of litigating that
<v Speaker 5>issue in front of Judge Tanya Chuck In how the
<v Speaker 5>presidential immunity case applied to the four felony charges that
<v Speaker 5>remained in the indictment. She would have ruled, I predict
<v Speaker 5>no immunity for those four correct primes, let's go to trial.
<v Speaker 5>Where were we in the Eleventh Circuit Court of Appeals
<v Speaker 5>with the classified documents case, the government had appealed it
<v Speaker 5>Judge alien Cannon's dismissal would have been overturned. It would
<v Speaker 5>have been remanded to the trial court for a trial
<v Speaker 5>on the classified documents crimes. That's where we were, and
<v Speaker 5>guess what, we're still frozen in time right there. Those
<v Speaker 5>cases are not dead. I'm not saying they're necessarily going
<v Speaker 5>to be successfully re brought, but if we care about
<v Speaker 5>keeping our republic, they have to be.
<v Speaker 3>Yes.
<v Speaker 4>If Trump lives, there is a question about whether or
<v Speaker 4>not he can still be prosecuted. And on my view,
<v Speaker 4>and it sounds like yours too, Glenn, trying to subvert
<v Speaker 4>an election far from an official duty.
<v Speaker 1>Correct.
<v Speaker 4>The definition of acting in your private rather than in
<v Speaker 4>the public interest, and generally the category of a crime
<v Speaker 4>that is also an official duty is a hard concept
<v Speaker 4>to get around, as one of the problems with the decision.
<v Speaker 3>But it's certainly a narrow category.
<v Speaker 4>And I would think that the things Trump is accused
<v Speaker 4>of two, we had Senator Whitehouse and spoke with him
<v Speaker 4>about possible legislation short of an amendment that might so
<v Speaker 4>narrow the meaning of what an official duty is that
<v Speaker 4>these crimes might still be executed. So yeah, I mean,
<v Speaker 4>we're always looking for hope and and that's really a
<v Speaker 4>great one to offer.
<v Speaker 2>Some Glenn, it's such an honor to have you join
<v Speaker 2>us again. I just want to ask you one question
<v Speaker 2>in parting, and thank you for being so generous with
<v Speaker 2>your time and wisdom. We've seen waves of resignations by
<v Speaker 2>prosecutors and DOJ officials, and I know it takes a
<v Speaker 2>lot emotionally and professionally to walk away from a career
<v Speaker 2>you believed in and gave years to. For those who
<v Speaker 2>are still inside the DOJ, what forms of resistance are
<v Speaker 2>even possible now if any.
<v Speaker 5>Yeah, it's a great question, John. And the way to
<v Speaker 5>resist from the inside is to continue to represent the
<v Speaker 5>American people in every case assignment you're given, and you know,
<v Speaker 5>remain loyal to your oath and that is the support
<v Speaker 5>and to defend the Constitution against all enemies foreign and
<v Speaker 5>most importantly these days domestic, and do not do the
<v Speaker 5>bidding of Donald Trump or the you know, dirty Trump administration.
<v Speaker 5>And if you suffer the fate of a wrongful termination,
<v Speaker 5>there is no shame in that. Keep doing the work
<v Speaker 5>of the American people. And you know, if you feel
<v Speaker 5>the need to get out, you save yourself, you get out.
<v Speaker 5>But then you fight from the outside. And the most
<v Speaker 5>important way to fight from the outside, John and I
<v Speaker 5>urge my colleagues who left EOJ to do this every
<v Speaker 5>day is speak out about what you saw on the inside,
<v Speaker 5>because that will help bring this corrupt regime down.
<v Speaker 2>Boom oh, mister Kirshner, you always make me feel better
<v Speaker 2>about this whole Michigaus, thank you so much.
<v Speaker 3>Thank you so much Glenn for joining us, having me.
<v Speaker 5>Guys, you've been a great.
<v Speaker 4>Return guest, and of course what that will get you
<v Speaker 4>is another invitation to be a third, third time come back.
<v Speaker 2>We're really proud to give you our Returning Guest Award,
<v Speaker 2>which Donald Trump will now demand.
<v Speaker 1>You give him to prove he's done the show twice.
<v Speaker 1>So thank you, sir.
<v Speaker 5>Trophy drop off center. Is it right there at the
<v Speaker 5>White House?
<v Speaker 2>Yeah, exactly right, love, what a pleasure. Thank you, Thank
<v Speaker 2>you so much. We'll be right back in just a moment.
<v Speaker 2>This is the oath in the office.
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<v Speaker 2>Welcome back to the Oath in the Office. I'm John Fugelsang,
<v Speaker 2>Professor Dretschneider. It's so good to be with you, and
<v Speaker 2>I want to thank Lenn Kirshner. I also want to
<v Speaker 2>point out that this week was Martin Luther King Junior's holiday,
<v Speaker 2>a day when we ignore most of his great activism
<v Speaker 2>on behalf of anti militarism and for civil rights and
<v Speaker 2>for labor, and focus on one line from one speech.
<v Speaker 2>But I wanted to ask you while I have you
<v Speaker 2>here and again, Donald Trump became the first president to
<v Speaker 2>almost not mention it for forty years, ever since Ronald
<v Speaker 2>Reagan was forced to side it into law because there
<v Speaker 2>was a veto proof majority. He did not want to
<v Speaker 2>do it. But ever since then, every president has marked
<v Speaker 2>Doctor King's holiday. I love his holiday. I can't believe
<v Speaker 2>it exists. I think it's more important than ever now
<v Speaker 2>that the civil rights pioneers are starting to die off
<v Speaker 2>and young people have no real tether to this period
<v Speaker 2>of our history.
<v Speaker 1>But I'm curious. You know, we quote him as a.
<v Speaker 2>Moral figure, as a religious figure, but you have written,
<v Speaker 2>especially in the Presidents of the People, about his evolution
<v Speaker 2>into a sophisticated constitutional thinker. Early on, he framed justice
<v Speaker 2>in very Christian natural law terms, and over time he
<v Speaker 2>really came to see the Constitution itself as a moral
<v Speaker 2>document worth reclaiming.
<v Speaker 1>How did that transformation happen?
<v Speaker 4>Yeah, it was a privilege to spend a lot of
<v Speaker 4>time with King's original materials and to tell the story
<v Speaker 4>of King's constitutional thinking, because we often think of him
<v Speaker 4>as a civil rights leader, a political leader, and of
<v Speaker 4>course as a minister. But I think less understood is
<v Speaker 4>how much he did for the Constitution. And what our
<v Speaker 4>podcast is about is citizens reclaiming the Constitution, and what
<v Speaker 4>I talk about in The Presidents and the People is
<v Speaker 4>the way that after the white nationalism of Woodrow Wilson
<v Speaker 4>and the legacy of segregation throughout the country, including in
<v Speaker 4>the federal government, that he played an instrumental role in
<v Speaker 4>recovering a very different to my mind, actually closer to
<v Speaker 4>the original meaning of the fourteenth them an equal protection clause.
<v Speaker 4>But that was slow in the making. He was originally
<v Speaker 4>really a theologian. I've talked about actually my wife's grandfather,
<v Speaker 4>who he collaborated with on Christian ethics, and that was
<v Speaker 4>his background.
<v Speaker 3>He was writing really about theology.
<v Speaker 4>And he gets a letter after a debate in about
<v Speaker 4>nineteen sixty from a student actually who's in his twenties
<v Speaker 4>named Hereford, and I have the actual correspondence between them
<v Speaker 4>that says, look, in some ways, what you're saying is
<v Speaker 4>too intellectual and it doesn't speak a common language, and
<v Speaker 4>he's urging him to find a common language. And what
<v Speaker 4>King writes, and I have the written correspondence in his
<v Speaker 4>own hand.
<v Speaker 3>Is anti tyranny. And this prompt from the student.
<v Speaker 4>You know, it's not like the student tells him what
<v Speaker 4>to say, but he says what he wants to see,
<v Speaker 4>which is this common vocabulary rooted in the Constitution. He
<v Speaker 4>returns to the idea that in the same way that
<v Speaker 4>the Declaration of Independence was a resistance to British tyranny
<v Speaker 4>from the outside, that what is segregation. But and he
<v Speaker 4>starts using the language of the Constitution so much so
<v Speaker 4>that in his last speech he talks about the idea
<v Speaker 4>Somewhere I read about the right to protest.
<v Speaker 3>Somewhere I read about the freedom of speech.
<v Speaker 4>This amazing speech right before his death as a protest
<v Speaker 4>from sanitation workers that he's aiding a union strike. And
<v Speaker 4>you know that to me really speaks to the idea
<v Speaker 4>of reclaiming the Constitution and that the Constitution isn't just
<v Speaker 4>what the courts say. It's a common vocabulary that all
<v Speaker 4>of us can reclaim for ourselves. And that's really what
<v Speaker 4>I love about doing this podcast. John that yes, the
<v Speaker 4>Supreme Court, as you heard Glenn Kirshners say, says that
<v Speaker 4>a president is immune from crimes. He said what the
<v Speaker 4>Constitution actually says, or in the Federal Trade Commission case,
<v Speaker 4>that they might uphold the right of a president to
<v Speaker 4>hire and fire even for political reasons, fire for political
<v Speaker 4>reasons that doesn't mean that that's.
<v Speaker 3>Really the meaning of the Constitution.
<v Speaker 4>And if we want to find heroes, there is no
<v Speaker 4>better hero of reclaiming the Constitution as an anti tyranny
<v Speaker 4>principle resistance to segregation and white nationalism than Martin Luther
<v Speaker 4>King Junior. So there's so much to celebrate. But that's
<v Speaker 4>in particular what I'm focused on, and I think what's
<v Speaker 4>directly relevant to the moment.
<v Speaker 1>I agree his.
<v Speaker 2>Whole dealings with LBJ, and you document this so beautifully
<v Speaker 2>in The Presidents and the People.
<v Speaker 1>I mean, there really is a shift.
<v Speaker 2>He went from saying segregation is morally sinful to saying
<v Speaker 2>it's unconstitutional.
<v Speaker 1>I mean, I guess.
<v Speaker 2>I guess being arrested and going to jail that many
<v Speaker 2>times would turn you into a bit of a strategist.
<v Speaker 2>And it's amazing to watch his evolution as he learns
<v Speaker 2>about power and law and leverage. It was a side
<v Speaker 2>of him that, God, I wish I could have my
<v Speaker 2>dad read this chapter.
<v Speaker 5>It's great.
<v Speaker 1>What do you think he would?
<v Speaker 4>I'll say too, John that for you know, your book,
<v Speaker 4>which has had now a real cultural impact, that it's
<v Speaker 4>such resonance between the way that he does things because
<v Speaker 4>he does talk about Christianity, of course, and about the Bible.
<v Speaker 4>He never abandons that and natural law, but he's always
<v Speaker 4>doing it hand in hand with the Constitution. If you
<v Speaker 4>think of what we're up to here, you know that
<v Speaker 4>is what we're up to or in his very much
<v Speaker 4>in his footsteps.
<v Speaker 2>So let me ask you my ballion dollar question. What
<v Speaker 2>do you think doctor King would say today about politicians, who,
<v Speaker 2>you know, my favorite subject, to invoke Christianity to undermine
<v Speaker 2>constitutional equality.
<v Speaker 4>Well, I think that he would certainly agree that that's
<v Speaker 4>a fake Christianity, because what he saw Christianity as is
<v Speaker 4>as a message of anti tyranny, a message of equal protection,
<v Speaker 4>and the love in the Constitution as compatible not with tyranny,
<v Speaker 4>but as the opposite. And yet you know what I
<v Speaker 4>love about him, and you know, so much of your
<v Speaker 4>book has spoken to non believers and people who aren't
<v Speaker 4>in the tradition of Christianity. And that's what he was
<v Speaker 4>really trying to do with this constitutional language, to speak
<v Speaker 4>the language of Christianity he was a minister, after all,
<v Speaker 4>but also to broaden it out. And his method of
<v Speaker 4>his language of broadening it out was to talk about
<v Speaker 4>the fourteenth Amendment about equal protection, and in that last speech,
<v Speaker 4>in particular about the First Amendment the right to protest.
<v Speaker 4>And you know, was there a better exemplar of our
<v Speaker 4>constitutional tradition of reclaiming it?
<v Speaker 3>The only rival is Frederick Douglass.
<v Speaker 4>But I put them in the pantheon, certainly, the two
<v Speaker 4>of them.
<v Speaker 1>I do think, Corey.
<v Speaker 2>And one of the things I've learned from doing this
<v Speaker 2>with you, if doctor King were alive today, I think
<v Speaker 2>that he would see the Constitution as we do, both
<v Speaker 2>as fragile and as a tool still capable of saving democracy.
<v Speaker 2>That juggling Act is always there. It is so perilous,
<v Speaker 2>and yet it did is such a strong tool if
<v Speaker 2>we're willing to fight for it. And I want to
<v Speaker 2>thank you so much, Professor. We crammed a lot into
<v Speaker 2>the show today. All that in Glenn Kirshner too. Everyone
<v Speaker 2>please please write to us, Corey, what do you want
<v Speaker 2>to tell the folks and how can our listeners keep
<v Speaker 2>it up with you and your good Deedscory. The other
<v Speaker 2>six days of the week.
<v Speaker 4>We're collecting questions if you want to send them. Corey
<v Speaker 4>Bretschneider at gmail dot com. Of course, subscribe, subscribe subscribe.
<v Speaker 4>If you're listening to us on Apple, leave us a
<v Speaker 4>review or Spotify or wherever you get your podcasts. We're
<v Speaker 4>very close to five hundred. You might be the five
<v Speaker 4>hundredth reviewer if you jump on it for Apple, and
<v Speaker 4>you know, tell a friend, send it to somebody. We
<v Speaker 4>are growing so fast and there's so much interest in it,
<v Speaker 4>and that's due to the listeners really, who are such
<v Speaker 4>a part of this community, this collective community of reclaiming
<v Speaker 4>our constitution, as we just talked about.
<v Speaker 2>I do want to thank our listeners as well, and
<v Speaker 2>might everyone that I host the primetime programming on sirius
<v Speaker 2>XM's Progress channel every night night to midnight on the
<v Speaker 2>East Coast six to nine on the West coast. If
<v Speaker 2>you don't have sirius XM, we're the John Fuebel Setting podcast.
<v Speaker 2>That's a free show every day. That's the highlights of
<v Speaker 2>last night's show. Here Corey there one day a week
<v Speaker 2>as well. My book is called Separation of Church and Hate,
<v Speaker 2>a same person's guide to take it back to the
<v Speaker 2>Bible from fundamentalist fascists at flock fleecing frauds. We just
<v Speaker 2>went back on the New York Times bestseller list last week,
<v Speaker 2>Professor Pretschneider and into Amazon's top ten. So thank you
<v Speaker 2>to everybody out there who's scretched that. Thank you, Professor.
<v Speaker 2>And I can't wait till next week and to see
<v Speaker 2>how much insane malfeasance I stress out about and then
<v Speaker 2>you Corey can talk me off. A ledge for my therapist.
<v Speaker 2>Thanks you for all you're doing for me in my
<v Speaker 2>nervous system. I want to thank Wendy and Bey Wolf
<v Speaker 2>and everyarde who puts the show together. And most of all,
<v Speaker 2>I want to thank you the listeners for joining us
<v Speaker 2>every week on the Oath and the Office