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

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