Before Project 2025: How the Right Built Trump’s Power Grab (with David Sirota)

We've now reached the point where the legal strategy is basically site dead Confederates and dead guys who called the Chinese barbarians. It's not even subtle. It's not even dog whistle. It's a bullhorn screaming. These guys aren't restoring the Constitution, Corey. They're trying to reboot the worst season of America. How many times does history have to say no before racist stop asking the same question? >> David Sirota is an award-winning journalist. He's a best-selling author and he's the founder editor chief of the Lever. >> The corporate class is forced to choose between democracy and fascism. The corporate class will choose fascism if that means protecting its power and money. It's like a law of nature.

Welcome to the Oath and the Office. I am John Feugel saying we've got a lot to cover this week including a very special guest and this week the nation's highest court hears oral arguments about the constitutionality of Donald Trump's executive order declaring that children born in the US to parents who are in the country temporarily or illegally should no longer be considered American citizens and the Trump administration is reviving some very old, very racist arguments to make their case. We've now reached the point where the legal strategy is basically site dead Confederates and dead guys who called the Chinese barbarians. It's not even subtle. It's not even dog whistle. It's a bullhorn screaming, "Yeah, yeah, the 14th Amendment says everyone born here's a citizen, but have you considered the opinions of some racist dead guys who didn't like that idea?" Let's go to the star of our program, professor of constitutional law and political science, one of the country's leading voices on executive power, civil liberties, and the Constitution. And he doesn't like me to say it, but he's a

fine breakdancer, Professor Corey Brettschneider. It's good to see you. Thank you so much, John. And you know, to get through the horrible arguments the Trump administration is making in this case, what better way to do it than with your brilliant Oh, no, no, no. That had me cracking up from the beginning. Let's get into it. You know, I I love that setup. >> That the the Let me That's That's who they're citing. They're like, "Have Have Have we considered what the 1800s most aggressively wrong people thought, Your Honor?" And they're presenting this as originalism, Corey. I love on you, Mr.

Colleague. I That's exactly right. And they're presenting it as originalism at the same time. Let me just say some basic facts about this case and why I'm not going to, you know, pretend otherwise. I think that the arguments for why you we should be able to strip birthright citizenship from the children of undocumented people and really from anyone born in the United States are are utterly ridiculous. The idea of originalism is supposed to be that you read the text and the text gives us an idea as a forefront idea of what people thought the text meant at the time that they enacted. What were they doing at the 14th Amendment, a constitutional amendment that says so clearly that if you're born in the United States, you are a citizen, full stop. And now what the Trump administration is trying to do is to claim that's not what it means, that this is only an amendment that applies to formerly enslaved people and their children, that it isn't a universal idea. When you can read it for yourself,

plain as day, that's what it says. They have arguments, they're not good arguments, but one of their arguments is that the phrase subject to the jurisdiction, that that phrase is what limits the amendment and birthright citizenship only to the children of formerly enslaved people. Of course, the context of the amendment was largely about formerly enslaved people and undoing the horror of slavery, but it was to undo it with a principle. The principle is also enshrined in the Constitution of equal protection. And this was the the very clear way that they tried to take the idea of equal protection and apply it to everyone.

Frederick Douglas has an amazing quote at the time explaining the idea here that this isn't going to be a country where your ethnicity is going to determine whether you're a citizen. What better way to send clarity than a simple rule, which is that if you're born in the United States, you are a citizen. Yeah, the the birthright citizenship exists because of racism, not in spite of it. It was created after the Civil War to overturn Dred Scott, which said black folks could never be citizens. It guaranteed citizenship to formerly enslaved people, but more importantly to our purposes today, it prevented states from racially deciding who counts as an American. So, these guys aren't restoring the Constitution, Corey. They're They're trying to reboot the worst season of America. I mean, how many times does history have to say no before racist stop asking the same question? So, this brings us to the story of Wong Kim Ark.

How does the US versus Wong Kim Ark directly address and settle the question of birthright citizenship? Well, I think the first thing that settles it is what I just said. That is plain as day, the text says what it says. I should say this wasn't even an issue. I thought it was ridiculous when it first came up in the first Trump administration and John Eastman, who later went on to basically organize the insurrection and the attempted coup of January 6th, was trying to make a name for himself and he was going around debating people. I was asked to debate this issue during the first Trump administration with with a a pro-Trump somebody who was arguing the the point that the administration is trying to argue now.

And my response then, and it still is, is that this is not a two-sides issue. Read the amendment for yourself. You can see what it says. Now, you ask about a case from the 19th century, Wong Kim Ark, that couldn't be clearer. It says that the amendment means what it says, that if you're born in the United States, that you are a citizen. And even if you're a Chinese national, as Wong Kim Ark talks about, your child is a citizen of the United States, full stop. And this isn't rocket science. The drafters of this amendment knew what they were doing. If they wanted to craft a narrow amendment that talked about the children of formerly enslaved people, they would have done that. But that's not what they did. They created a broad category, a broad rule that protects everyone who's born in the United States, full stop.

The phrase subject to the jurisdiction does apply in cases for instance of diplomats who are here temporarily and have immunity. They're not subject to the jurisdiction. And so, yes, there there are these narrow exceptions, but the idea that you would blow that up or narrow blow up subject to the jurisdiction and narrow the rest of the amendment so it's only the children of former slaves. No, as you say, there were people of course who who had views that tried to narrow the amendment, who narrowed wanted to narrow equal protection. They were the white supremacists and racists and xenophobes of the 19th century. And so, there were people trying to revive slavery under a different name, of course, in the 19th century. White supremacy, far from being destroyed, was a big part of our politics. But the amendment that passed was a repudiation of that view. Well, and now here they are in 2026 dusting off the same arguments like they're vintage wine instead of expired milk.

And this White House, Corey, I mean, they're acting shocked that that we're noticing. The The whole party line seems to be, "No, we're not being racist. We're just aggressively agreeing with racists from two centuries ago." But this case also involved indigenous North Americans at a time when they were treated as members of sovereign nations, not fully recognized citizens. I think that was 1924. Corey, how how does that historical context undermine its use in today's immigration debate? Well, the you know, one thing about this, I should just pull back a little and back up my claim that there really shouldn't be two sides to this issue.

And my view, which is that the Supreme Court never should be taking it and that we never should have gotten to this point. But once things start to get going and a view which is regarded as wacky in the beginning starts to have political pull and especially the pull of this, well, white supremacist administration, you start to find cases that seemingly, at least on the surface, support their view. So, they do have a case about Native Americans that said birthright citizenship doesn't apply to Native Americans in the 19th century. But as you alluded to, it's totally irrelevant.

The status of Native Americans in the 19th century was unique that Native Americans were seen to be part of a concurrent sovereign nation on American soil. And so, to to use this totally superfluous, different question, which is really, you know, a historical vestige of something that doesn't exist anymore, the idea of separate citizenship for Native Americans, is totally inappropriate to the case at hand. So, they do have a case about Native Americans that they're citing on their side. They have an argument, too, that somehow allegiance to the nation is what defines whether or not your child is going to be a member of the United States. There's nothing in the text that says that. And yet, they're trying to use this case about Native Americans to to, you know, kind of faulty way bring this up. They can't believe it. They have the conservatives claim to adhere to idea of textualism, reading the text strictly.

No strict version of the text would have this. And no serious look at case law would would confuse the case about Native Americans with with this current case. I want to point out that Saturday was the 128th anniversary of the Supreme Court decision affirming birthright citizenship. And Sandra Wong, the great-granddaughter of Wong Kim Ark, marched at the No Kings rally in San Francisco. And Corey, I mean, we've seen the numbers, millions participated in the latest protests.

And I wondered what your thoughts were on what we saw with No Kings this weekend and this kind of popular uprising. This is the first No Kings that's also an anti-war protest. I I mean, how significant do you think are mass protest movements really in shaping constitutional outcomes? Uh they are crucial and I just have to say to the many listeners who I know from correspondence were there, who are marching, this matters. It is the way that we stand up to this attempt to take over our and destruction of our democracy, to this attempted self-coup as I often call it by Donald Trump. And the phrase no kings really gets to the idea that we are facing a threat from within.

A dangerous part of is that the presidency is so powerful. Uh and collapsing the war powers, collapsing the spending power, trying to destroy the textual parts of our constitution including birthright citizenship. That's what this administration is trying to do. And what's worked in the past, as much as we've been talking about the court in this upcoming argument, has not been courts. That hasn't been it what saved us. It's been protest movements. It has been citizens rising up in defense of a democratic constitution facing off against an authoritarian one. And that's what this rally uh these marches um or millions of people around the country stood for. I think you're exactly right.

I mean I I think in the case of the Vietnam War, I mean look at that. Supreme Court didn't make that end, but thousands of citizen protests brought it to an end. I've always thought that Crosby, Stills, Nash and Young did more to end that war than any of the courts and and and and most of the politicians. But I we should point out that, you know, we do have a right as citizens to petition the government for redress of grievances, right? Protest itself doesn't work outside the system. Protest is part of the system of a constitutional democracy.

Absolutely. And yet at the same time that it it is the crucial part. I would say it's up there with voting and you know, the first amendment, the right to dissent. Uh it's not something that we're can take for granted that during the Adams administration which I've also often talked about the second president tried to shut down dissent by punishing those who criticized him, over 126 people including newspaper editors, a sitting congressman. And this president of course wants to do the same thing with ICE's deportation force that he's turned into an anti-protest force. Uh so the only way to really ensure that our democratic rights are protected is to use them. And that's part of what we're doing. And I'll also add, you know, the the next phase I think of no kings is starting to see an agenda, not just of resisting this president. That's part of it, but of recovering our constitution, getting rid of uh the the immunity case, uh saying that a president can be prosecuted if he uh commits a crime, pardon reform. And so that's what I'm excited about and we've got this momentum. It's clearly directed

at Trump's authoritarianism, but it also can be used and channeled into recovery of our democracy. Uh one more thing, John, sorry about war is you know, that is exactly part of this that the war powers are divided up by our constitution. We don't have a kingly war power where the king can initiate war and carry it out. The framers brilliantly divided the war power to Congress to initiate war and yes, the president, the equivalent of of the executive, of the king to carry it out. And yet um this president ignores that and has just launched willy-nilly without any strategic plan a war in Iran. And so it absolutely fits the idea of no kings. Um I'm so excited to talk about this with our guest David Sirota today as well.

But before we hit the break, Corey, if you were designing a no kings agenda, what would you say are the top reforms we need to prevent abuse of executive power? You know, we are going to talk to David Sirota and we're going to talk about his podcast and called Master Plan which finds analogies as I do in my work between past moments and this one. And one past moment, well we'll ask him about Nixon and one past moment was in the aftermath of Nixon where there were a series of reforms to try to reclaim our democracy. The War Powers Act attempted to do that. The Ethics in Government Act which created an independent counsel who couldn't be fired by a president to investigate the president's crimes was created. Those ideas have to be changed. We have to rethink them, but we need to put all that on the agenda. We need a project 2029 to think about reform of the presidency and that's what the no kings rally should push us to. So it's specifically reversing the immunity case, an issue we talked about with

Sheldon Whitehouse and we could do that I believe through ordinary legislation by narrowing the meaning of what an official act that is immune is. That's the kind of pushback that the American people through Congress can have. A counsel who is charged a law that creates the possibility of an a prosecutor who could look into the president's crimes without being fired and and bring a prosecution. That also needs to be part of it. Pardon reform, not allowing presidents to pardon co-conspirators or family members.

I think all of that needs to be incumbent not just on Republican presidents, but on Democratic presidents as well. And one of the heroes I think unlooked overlooked so often is President Carter who signed much of this legislation and subjected himself to oversight. That's what it means to have no person, not even a president above the law. Well, you know, maybe. I mean, but we could also find some dead guys who thought entire groups of people couldn't be citizens and and and cite their points. Um let's take a very quick break cuz I want to talk to you about this very troubling Supreme Court ruling on the torture of children that is known as gay reparative therapy. This is The Oath and the Office. Welcome back to The Oath and the Office podcast. I am John Feigel Singh along with Professor Corey Brettschneider. And Corey, we just saw this um Supreme Court ruling uh on uh what is called reparative therapy for gay kids. Uh they sided with a Christian therapist rejecting a Colorado law that prohibited mental health professionals from trying to

change the sexual orientation or gender identity of LGBTQ minors. This is also known as torture. Uh Justice Ketanji Brown Jackson wrote a hell of a dissent warning this decision could make speech-only therapies effectively unregulatable. Um they used the First Amendment line to say this is okay. How how how how does that work? Does this decision fundamentally redefine the boundary between professional conduct and protected speech? Uh they weren't precise about where this boundary is and there might still be regulations including of to my mind this dangerous form of therapy that tries to basically take children, gay children and convince them that there's something wrong with them. A form which strikes me as more akin to abuse than therapy. Yeah.

>> Uh and so it there's not a final decision about that. There it's going to go back to the lower courts. They're going to work that out. But what they did do I think is terrible and dangerous which is they confused the idea of free speech with the idea of the kind of therapist that should be licensed by the state to improve people's lives. And that is just a horrific mistake. I read the opinion uh today and it couldn't be more misguided. Of course there's a brilliant dissent uh from Justice Jackson who is really emerging as the real hero of the moment. Uh so let me say exactly what's wrong with it in my view.

Um what the court has said is look, people disagree about uh conversion therapy. There's disagreement in the society and we have a First Amendment right to our opinions. And that translates into what a therapist should be able to do when a licensed therapist when they are in therapy. Uh here's what I think is wrong with that. What a license is is not the same as what a private citizen does. It's the government coming and saying we approve of what you're up to. You're doing something that really is trying to cure people. It's what we do for instance when we approve or don't approve certain drugs. We say that they're safe. And certainly we say they're not abusive. And the idea that we are in the in the category of whether or not we disagree, you could say whatever you want about gay rights. You can oppose gay rights. You can oppose gay marriage as a private citizen. But the idea that government has to endorse you, that's a mistake. A quick point.

I've written a lot about license plates which might seem very fit far afield from this. But the Supreme Court in a case about license plates said when government is putting its literally its stamp on a license plate, it can get rid of hate speech. It doesn't have to have as a matter of free speech a Confederate battle flag as in Texas Confederate Sons of America wanted Confederate battle flag on their specialty license plate. Government can say we're not going to be part of that. And that's what a licensing scheme is supposed to be about. It's supposed to be about saying we approve of what you're doing. It's safe. It's good for people. It's therapy. And that's not in the world of First Amendment. It's not in the world of opinion. It's in the world of what works. And so this court badly confuses licensing with the First Amendment right of free It's brilliant. I mean, Justice Jackson called the implications of this potentially catastrophic. I mean, you know, this this could limit state's ability to regulate medical advice, legal counsel, financial advising if they involve speech. Um I know that states have always regulated licensed

professionals even when their work is primarily speech. But um Professor, if if a if a therapy is widely considered ineffective or harmful by most major medical organizations, shouldn't that matter constitutionally? This is abuse of children. Absolutely. And that's why this isn't a hypothetical that this form of therapy is regarded as dangerous. That's why states don't want to license people who do it as therapists. But they're say they're saying the First Amendment should override overwhelming scientific consensus in regulating professional conduct.

Yeah. I mean, again, they haven't said conversion therapy can't be limited by licensing, but they are saying something that's opening that possibility, which is that there is an analogy between you know, the disagreement between us and some right-wing bizarro podcast that is the opposite of the anti-oath in the office, the pro-authoritarian podcast. You look, we're going to disagree on a lot of things like there are a lot of those, way more of our kind. They you know, we could disagree as a matter of first amendment. We're not claiming that they should be imprisoned or anything for disagreeing with us about issues like this. But when a therapist is trying to get a license, the question is do we have to weigh views equally? And the the answer to my mind for all the reasons that you gave is no. We think about things like whether or not it's dangerous or not. So what the first amendment does is it doesn't always resolve an issue, but it changes the weight. And basically what the court has done is given great weight to therapists that don't want to that want to do this kind of therapy. And it's put it a lot of pressure on governments that want to

regulate it. As opposed to the more common sense way of doing it, which is to say that's licensing isn't about free speech. It's about the straight-up question of whether or not something's harmful or not or I realize John that might be I'm trying to be precise with the case, so maybe I'm getting confused. You should tell me if that didn't make sense. No, no, but I just have one more question. I mean putting aside the fact that this is child abuse, could could this ruling open the door to licensed professionals promoting all kinds of dangerous and discredited treatments as long as they frame it as speech? I mean, this this could be a great time for snake oil of all forms. Well, John, let me give you what I wish was a hypothetical, but you'll instantly recognize as a real example. Let's say that the president of the United States has decided that bleach is a good cure for COVID.

And is demanding, you know, that that that medical doctors prescribe it. You know, okay, and then there you know, imagine too that there are doctors who are like, I like the president and I you know, I know I have medical training, but this president seems to be on to something. I mean, does that mean that we're going to we're going to approve as a cure for COVID bleach? No, of course not. And the fact that there's disagreement about it shouldn't bear on the situation. It's just outside the realm of what we're supposed to do when we're approving drugs or when we're approving therapies. And you know, what the court has said is it's a matter essentially yes, it is largely a matter of opinion. And I think that's just a horrible confusion of therapy and what it means when we talk about free speech. You know, like license plates.

When the government is sending its own messages and that's what it is doing in licensing, it's got to do so with the aim of health, avoiding harm. And it's not acting in the same capacity that that private citizens are acting in when they're disagreeing with one another. That's essentially what Justice Jackson said in her brilliant descent. I am disappointed with the other liberals on on the court. There was a concurrence. Me, too. That really seemed to to just not get it. And you know, Justice Jackson again, hero of this court, speaking so clearly and with such common sense. Before we hit the break, I just want to ask you quickly about the Department of Homeland Security shutdown, Corey.

They're now paying TSA again, so the lines should be getting shorter and the airport should be flowing a bit better than I had last week. And the Republicans tried to blame it on the Democratic Party and then the whole world got to see Democrats and Republicans in the Senate voting together and Republicans in the House and Republicans in the Senate fighting over it. But the president ordered them to be paid by executive order. Constitutionality, who controls federal spending again? Can a president unilaterally direct payments without congressional appropriation? You know, there's so many moments where the the kind of moment seems to call for strong executive power and the frustration that people had in airport.

Trump realized if he just jump on this, he would he would look like a you know, a kind of hero. But we've got to restore our perspective and think about the question you just asked. It's supposed to be Congress that controls spending, Congress that controls taxation. The tariffs case that was made clear. And what I thought the Congress was trying to do was to demand that we see less abuse by ICE if they're going to be funded. And one way to ensure that that power to to use money in order to ensure our constitutional rights are are not violated, one way to undo that major power of Congress, the thing that distinguished us from kingly power, the abuses of of the British monarch, you know, it all goes away if the president just usurps that power. And so I want to see the Democrats lean in more to the fights to use spending in order to protect civil liberties. Yeah, what happens if presidents of of either parties start bypassing Congress on spending decisions during government shutdowns, Corey?

Well, you know, I think that abuse after abuse, erosion of congressional power, erosion after congressional power, in the end what you risk is what I've been warning about, a kind of monarchy, a moment in which there really isn't a democracy. It's just a the president of the United States elected through the Electoral College doing what he or she wants. And this is yet another example of where we might be headed in that direction. When we return, we will be joined by the great David Sirota. I am so excited for this interview, Corey. We'll be right back.

This is the Oath and the Office. Welcome back to the Oath and the Office. I am John Feal Sang and Professor Br Scheider, I'm I'm I'm terribly excited about this next guest. I've had the great pleasure of interviewing this gentleman many times on on my show on Current TV and on SiriusXM as well. What a pleasure, John. And you know, it's nice to have kindred spirits. Sometimes we have people on who we disagree with or public officials that we're trying to engage in discussion, but sometimes we have kindred spirits and I I really think that's true of our guest. David Sirota is an award-winning journalist. He's a best-selling author and he's the founder and editor-in-chief of the lever, the independent news outlet that he launched in 2020. He also served as Bernie Sanders' campaign speechwriter in 2020. And he's also got this amazing podcast that we're going to ask him about, Master Plan.

He was nominated too, if that wasn't enough, for the Academy Award for helping to create the story Don't Look Up. And also won the Writers Guild of America Award in 2022 for best original screenplay. And what a pleasure, David Sirota. Welcome to the Oath and the Office. >> Thank you. Thanks for having me. How are you? I wanted to just jump in, you know, by asking about some of the topics that you talk about in Master Plan cuz as I said, it is a kindred podcast. We of course have an ad swap that listeners have heard on on the podcast. And part of what you're doing, which we're also trying to do on this show, is to get contacts for what's happening in the current threat to democracy. I've been calling it attempted self-coup to destroy the other branches of government, the Congress and the judiciary through the power of the presidency. And yet, you know, we can learn a lot. This didn't come out of nowhere by looking to history. And I wanted to ask you about some of the analogies and maybe starting from the Reagan era you see, I know

an analogy with some of what happened during the Reagan presidency as long ago as it was. So what what analogy do you see with that moment? Well, so I think we have to understand that the Reagan presidency and what happened when it comes to presidential power happened as a response to the response to Watergate. Yeah. So so for context, Watergate happens. We don't have to go into the details of Watergate, but it is understood to be a situation where the imperial presidency has gotten out of control. And not just by the way in the Watergate scandal itself, but Richard Nixon's entire presidency is seen as a usurpation of power by the the presidency. This is a guy who campaigned on promising to end the Vietnam War, who months later was secretly expanding that war into Cambodia. This is a guy who said that he wasn't going to spend money that Congress had already appropriated for things like road projects and the like. That sounds familiar. That's like right out of Donald Trump's playbook or

put it the other way. Donald Trump is tearing from Nixon's playbook when it comes [clears throat] to impoundment and the like. So so Watergate happens, the Congress claws back some of its power. It passes the War Powers Act. It passes the Budget and Impoundment Act to make clear that a president can't just decide not to spend money. It passes the Independent Counsel Law, which says that there can be an independent prosecutor when the president or members of the executive branch are accused credibly of of serious crimes, that the executive branch can't investigate itself. So that all happens in the post-Watergate period. And not surprisingly, conservatives don't like it. They they they do not like that Congress is asserting its power to kind of rebalance and and put back into balance the supposedly coequal branches of of the government. And out of that backlash, conservative backlash to the Watergate backlash, comes Ronald Reagan's presidency and a number of familiar

faces, at that point young lawyers, and all familiar faces, are working inside of the Reagan administration to now try to grab much more power back for the executive branch. I'm talking about people like John Roberts, Samuel Alito, John Bolton, Ted Olson, right? This is what we call them the Master Plan Cinematic Universe. They keep popping up over and over and over again. And they start in the first term by uh essentially arguing that various laws that Congress has passed give the president executive power that the president should use more aggressively.

Power to deny information to Congress so that Congress can do oversight, executive privilege and the like. Power to hire and fire. All sorts of these sort of skirmishes inside the government over what the executive branch has to do or doesn't have to do. Reagan launches a series of military operations without congressional authorization, Lebanon, Grenada, etc. But ultimately they they decide that they still feel constrained by a debate over what the statutes allow them to do.

And so Attorney General Ed Meese, Ronald Reagan's Attorney General, begins something broader. He begins to cook up an argument called what's known as the unitary executive theory now. Which which argues essentially let's stop having arguments over what Congress lets us do and doesn't let us do. Let's make a constitutional argument that says Article 2 of the Constitution which is like basically one line that says the executive authority is vested in a president. Let's use that line to say that Congress none of these laws on their face are allowed. That we don't have to listen to any of these laws when Congress tells us what we can and cannot do with the executive branch. And so I think the the and the long way of This is a long way of answering your question which is the analogy is it's it's Donald Trump is now using that theory in almost everything he does. That it's not I I have to listen to this law or I have to stay within the constraints of that law. It's I don't have to listen to any of these laws exactly cuz none of

these laws allegedly are constitutional on their face. Yeah and of course many of the players that you mentioned who were part of this conception of the unitary executive which we've talked a lot about on this show now are in power themselves. So far from being the players John Roberts and Justice Alito of course are leading the charge. I mean one thing just to dig a little deeper into the Reagan era question. Um you know one question that I have is how pernicious it was you know in the hands of Trump it really has become uh a toolkit that's being used to try to set up a dictatorship to really destroy the other branches and that phrase self-coup that I keep using I think really is accurate if we're describing a Latin American country in which um the the the the constitution was being ripped to shreds like in the birthright citizenship case or the spending powers and taxation powers of Congress were being ignored. That's how we would call it. But at the time you know the the they had this idea of Reagan as a

kind of hero that he wasn't as pernicious certainly as Trump. Is there a benign form of what was going on there with Meese and others where they really just were trying to create efficiency? Their story of course about Nixon was that well this system worked you know Nixon faced impeachment and we didn't even have to go through the full impeachment and removal and so the system works. I mean were they kind of naive in in failing to realize you know Patrick Henry's warning which is that if you you know grandize presidential power you might wind up with a dictatorship you might wind up with a criminal president or do you think they they really did have something like the Trump playbook in mind? It's a great question. I mean we we use the metaphor that these that some of these people as an example like Dick Cheney who was in Congress during the Reagan administration that there is a leopard ate my face kind of dynamic here. I let the leopard out and now I'm shocked that it's eating my face. Right like like I I do think that what you see

in the Reagan administration and by the way a lot of other presidential administrations that are trying to concentrate power is is at best you could say it's very short-term thinking. We want to get done X Y and Z. If getting done X Y and Z requires us to have more power to get done X Y and Z great we'll get done X Y and Z and let's not think about what that power can be used for later because we're only the president or the executive branch right now and and we're not thinking ahead 5 10 15 years. So I certainly think that when you when you go back and you read these memos from John Roberts or or Sam Alito or Ed Meese I I certainly think they seem to believe that they have a um an ideological point a point about where they think the balance of power should be and it doesn't they don't it doesn't come off as necessarily corrupt. Right

it's not like we want to get more power to enrich ourselves or we want to get more power to to necessarily do quote unquote bad things. Although I do think I do think underneath it there's a there's a kind of corruption that that that it's sort of hard to describe and it's more nebulous. It's not the corruption of my donor gave me money in an in an envelope and I want to concentrate power in the White House to give my donor what they want. It's more like the democratic process small d is messy.

I I I got to go convince a bunch of people who have to go back to their districts every two years to to to deal with like the messiness of like what voters actually want. And a lot of what Reagan was pushing in in in the Heritage Foundation's guidebook mandate for leadership which is of course the original Project 2025. A lot of what they were pushing were like really unpopular policies. Right like cutting taxes for rich people, spending money a ton of money on on the Pentagon while cutting basic social Like these are not popular things that the average member of Congress wants to run back to their district and tell uh their voters that they're doing. And so the point being that if you still if you want to get those things done well it's easier to like well we have the executive branch. I don't want to have to sell this to Congress. So the way around this is to simply concentrate as much power in the White House as possible. And I think that this is why Master Plan season 1 and Master Plan season 2 go

together. Right Master Plan season 1 is about legalizing corruption. Okay that's the 50-year story of how corruption was legalized through deregulating campaign finance system. Master Plan season 2 is about the excessive concentration of power in the White House in in in in the hands of one person. And they go together in this way. If you are an oligarch, if you are a power broker, if you are a billionaire or a corporation democracy is a problem for you. Exactly. Cuz what you're trying to do is a bunch of things that are not popular with the public that preserve your power and wealth. So how do you deal with democracy? I mean the Powell memo which we go over in season 1 is all about basically Powell saying we have a democracy problem. The democracy is producing too many results that the oligarchy doesn't like. And so the way you deal with that is one you turn a one vote a one person one vote system a democracy into a one dollar one vote system so you legalize corruption so the elections are

rigged. And the second step you do is you concentrate as much power in the hands of one person. And then when your guy is that one person you do whatever you want. And you trust the Democrats to never abuse the power the way you will. Joe Biden had a three solid years to abuse presidential immunity and prevent a lot of this and they knew the nice guys won't do it. David there's so much I want to ask you. It's it's I've always thought it's never been conservative versus liberal in this country. The struggle has always been aristocracy versus democracy. And we're taught that it's conservative versus liberal. And it's amazing how they'll change the language to go along with these unpopular plans. They don't call it tax cuts for the obscenely rich they call it tax relief for the job creators.

And I love [clears throat] how you draw a straight line between Meese and the unitary executive theory right to grown-up John Roberts in his sweater vest granting presidential immunity with the assumption that Donald Trump is just the hood ornament on the car that crashes into the peaceful village of democracy as George W. Bush was. Um do you see this as a sign of democratic backsliding? Is this a sign of the system always being stress tested? Or is this just the way it is? Is this just how it is right now in so many ways Nixon and the drug war and the southern strategy were themselves a backlash to civil rights and voting rights. And I've never really seen a democratic backlash in my lifetime. I've just seen the pattern of Democrats getting into the White House after the Republicans burn everything down. That was Carter. That was Clinton. That was Obama. That was Biden. Democrats never get in when things are going well. So I mean is this just the way it is? Is this the way it's always been? It has not

always been this way. I think I think you're right. I I'm Look I'm I'm 50 years old. I don't know how old you are but look we're not 90 years old and we can't remember FDR. Right we didn't live through FDR. Yeah. What's interesting to me is that some of the things that are said about Trump the unitary executive proponents etc. etc. were said about FDR. Uh that FDR was a dictator. FDR was using too much power. FDR was was was ignoring different branches of the government or challenging you know packing the courts etc. etc. So I guess the long view is this has been a pendulum swing and there typically has been one party is sort of on the march aggressively using power and the other party more in a caretaker role, right?

Like the so-called Rockefeller Eisenhower Republicans, not that they didn't do anything. It's that they were more of the sort of status quo party, while the New Deal Coalition was a on the March. And I think that flipped and there's a pivot point. There's a There's an amazing website actually that's that's I can't remember the name of it, but if you Google it, it's all about 1971 and it's literally a list of how everything in America changed after 1971. Interestingly and it's all these graphs by the way, like labor relations, everything. And by interestingly, the Powell memo written in 1971. Okay, so the the point is I think that I'm trying to make here is that I think that there's always been this push and pull.

It has not always been this way. And I my hope is that we are at something of a pivot point here where if there is another Democratic president, that the next Democratic president will not simply be a caretaker president refusing to use power in an aggressive way. Now, I should say I I I do think there's like a productive middle ground between we're not going to do much with executive authority or Donald Trump over here just continue like pushing the line so far over the envelope where he wakes up one day and starts World War III. Like there is a productive like middle ground here.

And and and so for folks who are thinking about this, like I actually take the position when it comes to like Biden, that we saw a little bit of a use of executive authority in a productive way that we hadn't seen during Obama. Like the CFPB, the FTC, the Department of Labor. Like they Those agencies actually did assert some executive branch authority to try to do real things in a way that the Obama administration and the Clinton administration, antitrust enforcement another one, that that they hadn't done.

And I think that like that was like a little taste of it and I think part of the problem was like Biden never sold it. He never like Right. never became like central to the Biden administration. >> isn't it And I don't know if this you know, thinking of this as a pushback, but it might be a little bit in that of course that that's right that the kind of use of the presidency and the legal powers of the presidency can be used to do great things. The New Deal for instance, the Great Society. But at the same time I worry is and I wonder if you share this, that there's a problem in the presidency itself, maybe inherent in the office, which is that when people get in, they confuse that need to do good things with the danger of really usurping democracy with with moving in the direction of the authoritarian power. And I would put some Democrats in that position, in particular Bill Clinton. You mentioned the independent counsel law, which we've often talked about. In fact, we were talking about it earlier in the episode and just to remind listeners this is a law that allowed for investigation of the president of the

United States and his or her crimes and also protected that person from being fired in the way that Archibald Cox had been fired at the behest of Nixon. And so it it it creates an office with real power of criminal investigation. And Ken Starr's office actually was the last independent counsel wrote a memo saying the opposite of what the immunity case says that yes, I we have the power to indict a sitting president. Now, when Clinton was faced with the Starr investigation and yes, I think it was an abuse of power. It went too far. We could talk about that. But Clinton went from supporting the law to saying we've got to get rid of this. And you know, I had a piece about my work about my book The Presidents and the People on Politico, an interview where I said it's better that we have 10 Ken Starrs as bad as he was than one Donald Trump. And so I wonder if Democrats missed that message.

And then Biden I've been critical in particular of the pardon of Hunter Biden and families. I mean that strikes me too as a kind of abuse of power. So I mean how do we balance that? I totally agree with you need for you know action that makes people's lives better and that that ends poverty for instance, that creates a robust economy for all. Many of the issues I know that are close to your heart, but with the also need to recognize the dangers that that we've all been talking about that a president unconstrained by the law can become a dictator, can become a king. And so what do you think of that? I mean what would you want to see future presidents do to ensure that their own power is constrained and that future Donald Trumps don't get to emerge as easily at least as they have now. It's a great It's a great question. I mean the way I think about it is that there are well, let's start with with this. The Constitution

no matter what you think of it, no matter what side of the political spectrum you're on, I think we should all be able to to agree that it's fundamental premise is that power should not be concentrated in the hands of one person. Like that's the basic foundational premise. Like you you need to spread power out a little bit. There need to be some checks and balances. Um and I and I also think that the Constitution one of the the genius parts of it and not all of it is genius, is that on on specific things it is designed to to to make the executive sell the policy to the Congress aka to the public because the premise is is that the policies should have the consent of the governed. Es- especially when it comes to like the really important stuff. How the government spends money, power of the purse, tariffs making of war. Right? Like that That's why there those are like Those are name-checked in the

Constitution. That that we don't want Civilization does not work well when the king gets to decide I'm going to war and I don't even have to sell it to Congress and the people. And we're living through that right now. Like like the the war in Iran, not only does there's no declaration of war, it hasn't been really sold to the public at all. Like that's bad. Yeah. >> So that's all the way of saying when I think about the power of of the executive branch, the way I think Democrats should think about it is the things that I really need to sell to the public that need the consent of the government. Like Excuse me, the the the pop- the population. The really big things.

Taxing, spending, war tariffs, all the things that are name-checked in the Constitution. By the way, warrants. We're right now talking during a debate over whether to give to extend warrantless surveillance powers to Donald Trump. By the way, That's why we got long lines in the airport. You're right. Democrats have renewed that warrantless wiretapping power. Right? Like So so I like list out those things that are like name-checked in the Constitution as the things that you like the founders are trying to say to us, "Hey, hey, don't mess with that. Like do not mess with those powers. Like really follow the process." Now, I think like below that there's a lot of administrative things that the Democrats could do that we know are wildly popular that they have not used their executive authority when they've been in that office to do. Let me give you like two two examples. They Because they to me

they seem so incredibly obvious and so egregious. The most egregious tax loophole in the entire tax code, the thing that every politician, by the way, most Republicans and all Democrats say that they are offended by, that's gross, disgusting, the carried interest tax loophole. Okay, the one that allows Warren Buffett famously to pay a lower effective tax rate than his secretary. It's called the Buffett loophole because he he even says this is obscene. The president through the IRS, the executive branch, could simply reinterpret the way we look at that carried interest. This is money from private equity that private equity executives classify as capital gains instead of income. The IRS could easily say, "We're not looking at it that way anymore.

Sorry, we're not like that's we're not interpreting it that way anymore." And that loophole could be closed. Now, I get the argument that it would be better to pass it in statute so that another president couldn't reopen. I get all that. But like there is an example of where it's like yes, there would be like a legal fight, etc. etc. But like it wouldn't be dictatorial to say you can't classify private equity billions of dollars of income as an artificially low tax rate. One other quick one, the SEC has the power to say to publicly traded companies you have to disclose all of your dark money funding spending to your shareholders. Right? I mean well within the SEC's right to do that. Democratic presidents have never done. So I just hold out like two examples where I'm like, "Look, you don't have to be Donald Trump waking up one day and starting World War III. Like you can close tax loophole. You can like make money more transparent in politics." Like there is a middle ground here. Yeah. Without being a dictator. And it can be popular.

That's the thing. If you if you're a Democrat who wants to do it, it could be incredibly popular because we've seen Democrats playing moderate and how little that actually inspires people in the long run. And this is why I love the Master Plan podcast, David, because I I love how you trace a direct line from Watergate to Citizens United and this is what we're all dealing with here. The haves have bought off their politicians and the have-nots have not. Um these small groups of aristocrats that designed this country where only they would be allowed to vote and every bit of rights we've ever wrestled from them has been fought for and won. This is the struggle that I want to hear Democrats bring to working people. And every time Senator Sanders appeared on Fox News, it it was always electric to me. I'd I'd say for Senator Warren as well. I mean like, "Oh my god, you're actually getting these words into the brains of these people because we all know it doesn't matter what century you're in, the Confederates, hard-working white Confederates will always get suckered

into fighting the battles for the plantation owners. Is the concern here that the Democrats are infected by the same disease and that it is big money keeping Democrats from having sweeping reform and just limiting them to big talk about making the rich pay their fair share and maybe we'll raise the tax code another 3% like Bill Clinton did. Yeah, I mean, listen, I my view on why the Democratic agenda seems so narrow is because it what you have to do is you imagine it as as a Venn diagram. Okay, on one circle are all the things that the public wants.

In the other circle are the things that the donors want. And in the tiny little middle are the things that that that the public wants and the donors can tolerate. And this is why so much of the debate, frankly to my mind, is about non-economic issues. Right? Like the donor class is perfectly happy to concede all sorts of things on social issues and culture. Not to say that those aren't important. They are important. But like the donor class, where the rubber hits the road, is like, "Oh, wait. I'm got I got to pitch in, you know, one penny more than I'm pitching in? Like no way I'm willing to burn the whole system down if I have to do that." Right? "Oh, I have to relinquish a little bit of my power?

The public gets a little bit more of a say on things? I'm going to burn the whole system down. I'd rather give I'd rather have Donald Trump and complete chaos." I mean, listen, I there there there it was there was a I'm paraphrasing here, but there was a quote in Politico during the 2024 election where I think it was one of the corporate leaders in New York City said like, "You know, if it's a choice between like democracy and Donald Trump, most corporate leaders would choose like Donald Trump." Of course they will. This is like, you know, like the history human history. We know that like if if the corporate class is is forced to choose between like democracy and fascism, the corporate class will choose fascism if that means protecting its power and money. Yes. They always have. We'd be fascists otherwise. Right, it's a it's an axiom. It's like a it's like a law of nature.

And and so I think like the question now to me is can the Democrats say no to the money that controls their party? And I think it's actually a bigger question. It's it's it is it is a moral question, but I think we have to understand how complicated it is inside of a system of legalized bribery and corruption because I think the moral answer is yes, they should.

The the answer is that people are craving that politics. I think the the challenge is how do you fund campaigns to empower with that if you bite the so-called hand that feeds you. Now, obviously, I am not a a proponent of like donor class politics. I'm the opposite. And and and but I think it is like a fundamental question here. If you want to sever donor class politics from the Democratic Party, how how can you do it? Well, one answer is at the very high profile level. Okay? US Senate races, mayor of New York race, presidential races. Like top line races where you can get attention regard you know, if you have a certain threshold of money. Yeah. I think I think you can have candidates who break free of money. We we did. The problem is you go one level down, okay, to somebody running for Congress, somebody running for legislature.

It is much harder to gain attention to voters without money. So, money has those levels of politics locked down, which is a long way of saying I I I I do think people want an answer. The the the actual part of the big answer here is public financing of elections. I think you have forgotten in the New York mayoral race. And I'm I I I feel like a broken record saying this. Why does Zohran Mamdani how is he able to win that race? Okay?

My answer is yeah, he had a great message, super photogenic candidate, savvy, you know, good politics. Like, you know, he was his his agenda is right in the middle of what people wanted. But Zohran Mamdani would not have been a candidate, much less a winning candidate, had New York City not had a public financing system of elections that provided him enough money to be competitive in the first And and I just think like it sounds boring, but it is a boring thing. Well, it also I mean, the themes that we've been talking about connect, too. And that of course, the fact that the donor class has the kind of power that it has as a result of a court that is beholden to a conservative supposedly originalist philosophy that combines not only with the unitary executive, but with this deeply misguided view of free speech. We talked in the episode about the court's decision today so oddly and wrongly taking the First Amendment and intruding into an area of licensing and

and licensing therapies that are potentially going to be dangerous on the grounds that it's a matter of free speech. A complete confusion. Of course, the other huge area that they've done that in Citizens United and in the case that came after it and protecting super super PACs is using the First Amendment to protect what you're rightly identifying as the donor class. So, to me to my mind, that has to be part of the solution whether it's through public financing or through a direct assault on Citizens United and in particular on the lower court decision that enables super PACs. That kind of constitutional reform is part of the progressive story of of looking out for people's daily lives and their economic well-being. I mean, one thing just to kind of bring us towards a close and David, I want to you know, get your thoughts on this. I mean, I think the the view that we've been crafting is one where we are worried about the self-coup, worried about the abuse of power. What better example than a a war and Congress is

supposed to have the power to initiate war and yet this president has initiated with no discussion. And the Democratic Party and the next president has to think about how to rein in that abuse of power through constitutional reforms and I think that connects to to the First Amendment. And yet robustly and to not be a weak president. I mentioned Carter earlier in this episode as an example of somebody who did constrain his own power with the Ethics in Government Act, but we can't get away from the fact that he's almost the poster child for a weak-seeming president, whether that's fair or not.

That's certainly the legacy. So, I mean, is this a way of summing it up, David? Is this a fair characterization of where we've we've sort of arrived at? Um you know, the the presidency is already so powerful that you can use it in so many lawful ways that you can be robust in the best sense and yet not run into the dangers of dictatorship. I mean, FDR is an interesting and dangerous example in that I think there were moments in particular he tried to fire famously the head of the Federal Trade Commission in order to basically do his bidding to destroy independent agencies in the way that is also a precursor of the you know, the attempt to reverse the case that stopped him, Humphrey's Executor. So, I mean, is that is that are you on board?

Is that a good characterization of this that that there's already so much power within the presidency that we can walk and chew gum at the same time, see a robust president that also constrains himself some combination? I mean, I know you're a film guy and you're always looking for, you know, Harry Met Sally meets the the player or something. I mean, so is this an example where, you know, we can have a Carter meets FDR without without usurping the the the the what? The the danger of authoritarianism without entering into that territory? Yes. So, my my my take is that first and foremost, what we are suffering from is a Congress that is completely unassertive at all. It is not a it is not a serious entity in any way.

And and I think that is like we're we're sort of talking around this problem. Right? That Congress has conceded so much power over so many in so many ways that it's created a vacuum that the president has filled. And the presidency has filled. When it comes to let's use the example you brought up, hiring and firing at independent agencies. I I think there's a problem when the Supreme Court, which is it's it's about to it could be saying this soon, Yeah. that the president can fire FTC officials, CFPB officials, Consumer Product Safety Commission officials. Officials at all the independent agencies that protect people.

But the president cannot fire somebody at the Federal Reserve who hands out bailouts to bankers. I'm not picking on the specific Federal Reserve Bank official. I'm just saying like I think we have to look at the through line here. And the through line that the court seems to be saying is the president gets hiring and firing power over everyone who can help actual people and gets no hiring and firing power over the the the federal officials who help bankers or people in power. And I think that's a real problem. Um I think the fight over independent agencies is part of the natural push and pull between Congress. Like should an independent commissioner a commissioner in independent agency get a five-year term that overlaps into a presidency or not? I think there's an interesting like I could see kind of both sides. Like we just had an election, the president promised to do something, he needs to be able to put in place his people or her people to do the things that they

promised the public. Like I do think there is a a democracy crisis issue there when we keep we feel like we keep voting for presidents and then we're not getting what we want and the president can say well it's because I can't I literally can't do the things I promised to do. So I at a at one level I do see like the the small d democracy argument from some conservatives underneath there because I do think the democracy crisis when we really talk about it it is buying elections, it is concentrating power in the hands of one person, but it's also people feel like they're voting for change and they keep getting more of the same and that is fundamentally ruining their their their their belief in democracy. So I get that argument. I also think though to go back to the to the bigger point that a lot of these processes okay that make it harder to do things instantly are designed to make sure that the public has given its consent in a real

way. By the way, beyond just one election, right? Like when I think of the New Deal, right? That the New Deal, it wasn't like it happened in four years and then FDR was like thrown out of office, right? It like the fact that it happened over that many elections Right. >> created a staying power and legitimacy for the institutions that were built and a consent of the government. Like if something has to take multiple elections to be put in place a whole agenda, it really does mean it really does kind of guarantee that the public was bought in.

Right. >> Yeah. Like like and I actually think that like that is what we should really want. Uh that is what we should be aspiring to and I think when Democrats regain executive power the thought process should be let me see what I can deliver on in my promises that I made using executive power you know without going out of control over over the lines like Donald Trump, but also let me see not only what I can use executive power for, but how to enshrine that in more um permanent ways in statute in winning enough next election to to put in more of these things in place, right? Like it's got to be a longer term project.

Yeah. I love this way of concluding. The weakness of Congress is a huge part of the story of why we've seated so much power to the executive and why we've associated the idea of progress with a president acting in well, frankly, dangerous ways. And when you think of the long-term gains for the system, the 1964 Civil Rights Act, the 1965 Voting Rights Act, the the Great Society, the New Deal. These are major >> had all that. Exactly. These are or you know, Obamacare or the ACA for sure.

Exactly right. And they had three years after they passed it for it to become embedded in the culture and become safer. Yeah. And I mean that is also how the system was designed to work that it you know, yes the the the the supposedly textual basis for the unitary executive is that the executive power is vested in one president. Well, the legislative power is vested in a Congress and that's supposed to be the place where the people exert their will in order to create as you say, not just temporary executive orders, but lasting legislation. And so I think whoever this next president is going to have to you know, these are really complicated issues. I appreciate this conversation.

We've talked about the need for a president to act in a strong way, to have energy the way that Hamilton talked about. And yet there's a danger that that seeds into dictatorship into into usurping the democratic process. And so the the real trick for this next president, this is not an easy thing to accomplish, is is not to be weak in the way Carter is at least perceived, to seek legislation and to have the robustness of lasting change. And I think that >> message I'm that's what I as we have candidates on the show and senators, congressmen, that's what I think we're going to be pushing them on. And can I add Yeah, please. You know, I I one also note of hope.

Uh and I am not the most hopeful person. No. We're always trying to end on hope, so this Yeah. But I I do think that there is a strong argument that because Trump has had to use executive authority almost exclusively on so many things that it actually illustrates a a core weakness in the sense that things that are created by executive fiat can be rescinded by executive fiat. That the fact that he has had to to rely on executive edicts as opposed to trying to enshrine things in law. I mean we still got a long way to go here, right?

I mean he's only he's only the first you know, year year and a half in, but the point is is that like I think him not getting as much on the actual books in terms of statutes. Right. I I certainly think the court has done some very serious damage with its precedents that are that are going to survive past Donald Trump, but him not getting a lot of his agenda done in statute is a a there's like a silver lining that like okay, some of the worst things can be dealt with pretty quickly because they're built on a sort of house of cards of executive orders rather than laws.

Yeah, great. Or we can clone FDR or find another charismatic aristocrat willing to be a class traitor. There you go. Let's start looking. Great. Great. David Sirota, what a pleasure to have you on the Oath and the Office. We hope to have you back with a wonderful discussion. John, you want to have the last word? >> I'm just so grateful to see Mr. Sirota, someone who has inspired me for so many years and keeps on finding new ways to to push back and educate people and and remind us that we're still a democracy and this story is not written yet. So thank you David for joining us and thanks for this excellent podcast.

Everyone needs to subscribe to the Master Plan. Thanks. Thanks to both of you. Thank you. Thanks, David. See you soon. We want to thank David Sirota and Professor Brettschneider. Thank you so much. And I want to tell everyone now is the time when you should subscribe if you don't already and share this episode and and tell your friends and and write us. We we do answer your emails when we're not, you know, sneaking into the United States to have anchor babies and wait for them to be spies in 20 years. That really is one of the arguments they made in this birthright citizenship case, Corey. But a great episode all around. Thank you, Professor.

I really enjoyed it, John. Thanks so much as always and to be joined by David Sirota, really things fit together. We're getting at some of the core issues here. A president who threatens democracy in the ways that we're pushing back through No Kings, hopefully in litigation. Our sponsor the ACLU has been doing an amazing job. What an honor to be sponsored by them and pushing back against this executive order and their their their litigation team has been superb. We'll continue to cover that. And then also I love that we continue to talk about hope. That that that conversation really got at some of the details.

You know, there is a tendency I think in both parties to think that the president of the United States has all the solutions and if it's my person, then we should allow them to act as a dictator. And that is really what this podcast is about. It's about a more serious way of restoring our democracy, thinking about the power of Congress, thinking about the kinds of pieces of legislation that will both improve people's lives, but also stop authoritarian threats to democracy. And we'll continue to do that each week. John, what an honor to do it with you. We have a YouTube channel if you want to watch us there. We have a you the uh sorry, we have a the Oath and the Office Substack. Check that out. And you can find me on Blue Sky at democracyprof. John, thanks so much.

Thank you, Corey. And I'm on Substack as well. All the socials at John Feal Sing. My book is called Separation of Church and Hate. And we will see you guys next time on the Oath and the Office.