Democrats Win Congress in Historic Midterms. Can They Rein In Trump?

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Welcome to the Oath and the Office podcast. I'm John Fegelsen. Great to have you with us. Happy post-election day to all who are celebrating. Please welcome the star of the pod, the author of the Oath and the Office, the pride of the Poli Sci Department at Brown University. People of Earth, I give you Professor Corey Boom Boom Bretschneider. Good to see you, sir.

Thanks, John. And I'm really looking forward to the discussion.

Of course, we'll talk about the Ongoing malfeasance, the attempt to mess with the election, the role of ICE in our cities.

We're also going to have some good news.

Here about local prosecutors fighting back, actually seeking indictments in two of these cases. And we'll also get to talk about the future. You know, what should democracy look like going forward? What kind of laws do we need to ensure that it continues and that it's not over? So, you know, we've had a rough ride here, but we'll also have some optimism in the episode today.

Oh, absolutely. Look, if nothing else, the midterms are done. I mean, congratulations, Professor. Thank you for talking me off a ledge so many times in the last couple of years. I mean, it was fascinating watching the president make his closing argument about how great the oil companies are doing. I'm not really sure I'm sophisticated enough to. I mean, I thought the gas station was where propaganda meets reality. And it doesn't really work as a distraction. You know what would really distract Americans, Corey, from higher gas prices? Lower gas prices. That would totally distract them all. But as you've said many times, Professor, I think Trump's greatest political talent might be it's not solving the problems that make people angry. It's finding someone else for them to be angry at. And, you know, what we're seeing right now in Alaska, the DOJ trying to prevent certification of a Senate result before the votes are cast. In California, federal officials try to have more than 20,000 ballots set aside. based on their mood, I guess. And across all these states, we've watched this administration and this DOJ communicating with all these election officials, oh, innocuous things about voter registration and ballot eligibility. It's almost unfortunate we have a vast history with this operation, and we know exactly the kind of scams they want to prove. But I really want to talk to you about what we're seeing in the state of California. Trump keeps losing in court, but this one seems like it really hurt. On Monday morning, They went to the Supreme Court in their effort to have these 20,000 ballots not be counted in the state of California. The federal government not wanting a state to count their own votes. And the DOJ was claiming with zero evidence that the ballots were tied to individuals who were suspected of being non-citizens. It started out with them claiming, Corey, there was 200,000 people voting illegally. Then that turned to 20,000. And just before 6 p.m., the Supreme Court essentially said, what you talk about Willis and completely rejected Trump's appeal. Corey, they didn't even elaborate. It was an unsigned order with no noted dissents. Where to begin? I mean, what is going on here? What are the constitutional issues with asking state election officials to withhold or segregate or misplace thousands of ballots based on a federal database that that could contain errors. I mean, of the people they found, they charged 28 people with voter fraud, and a huge chunk of them wound up being Republicans. They didn't really smear this very well.

Wow.

You know, I guess I'll start with the mode of desperation, because thankfully, I think what's been working is the argument that this president has ignored inflation, partly because of his own corruption, and because he's been concerned to make more than $ 2. 2 billion, according to the New York Times. And as I think the Republican Party realized that was working, they turned back to their classic tricks, dirty tricks, which is trying to really steal the election from underneath our democracy. So let's just start with this. You know, we've been documenting attempt after attempt. The post office we talked about for weeks on end, how they were trying to basically keep ballots from getting in the hands of Americans.

When that didn't work, they switched their tune.

And this 20,000 suspected instances of voter fraud Let's just begin with the obvious.

It had no evidence behind it.

There was no argument for why this 20,000 people couldn't vote. And, you know, where they got the names didn't link to suspected fraud. And then you have this other reason, I think, for the nine, it was two courts recently, the Ninth Circuit very fast, and then the Supreme Court refusing to grant Trump's desire to force strict examination by the state of California. And that has to do with the idea of federalism. And we've talked about that a lot. Usually the idea is supposed to be conservatives. Justice Rehnquist talked about the 10th Amendment, the new federalism. But what's going on here is that a lot of the opinions of the Supreme Court say very clearly the federal government can't just commandeer the state government and tell it what to do. And that was what was going on here. So I think probably the first thing I think is that there's no evidence for this. And the second certainly is that's not how our system works. Local government is supposed to enforce our election law.

Absolutely.

And requirements, not the federal government, and especially not without any reason.

Absolutely. But fortunately for Donald Trump, Todd Blanch has never read the U.S. Constitution, and that's why he's valuable. I mean, Corey, non-citizens can't vote in federal elections. But more importantly, and I'll say this for the folks in back, non-citizens can't register. to vote in federal elections, which is why they don't do it. Most undocumented people have this thing where they don't want to get caught so they don't vote illegally. But the legal issue here is really whether the government can prevent registered voters, taxpaying citizens, from having their ballots counted based on an allegation from the federal government that their citizenship status is questionable. I mean, what level of evidence and due process should they have to perform before a person loses the right to have their votes counted. They're just trying to preemptively take the vote away.

Yeah, I think that's right.

It was an attempt at voter intimidation and an attempt to really distract California. Looking through those 20,000 ballots would have been very onerous for California. It would have turned them away from other kinds of election security that was necessary. So this was really an attempt of the federal government to bully the states. And I'll say it again, you know, we have a system in our country of dual sovereignty. This is something conservatives used to talk about. We have a role for the federal government. It's given certain powers, but they're limited. And those powers, this is what the 10th Amendment says, that aren't given to the federal government are given are reserved to the states.

To the states.

Now, you know, when you have an authoritarian president trying to basically destroy our right to vote, that turns out to be one of the main things that saves us, that you just can't tell states what to do. And that's why the Ninth Circuit and the Supreme Court were, you know, In really speedy time, they didn't delay on this one. They're like, I don't think so.

Yeah, but I heard some pundits say, well, you know what? So if they do it, they're going to lose in court anyway, so it doesn't matter. And I'm like, well, hang on a second. Even if the government loses the lawsuit, we have to think about the constitutional harm when a voter is denied the opportunity to have their lawful ballot counted, right? That may seem quaint, but that seems to be what this whole game is all about.

Yeah. And I wouldn't say that's just true in this case.

It's just true generally that in a way they don't care if they're going to lose. The Trump administration's playbook is to deny rights or create chaos.

And then after the fact, if they lose, so what?

And, you know, they they intimidate voters. I think that's part of it. They certainly are meant to scare. We're going to talk about that throughout the episode. Non-citizens and even if you're here illegally to being afraid because you might be accused of something like voting illegally. and also to threaten legitimate voters with false accusations. Nobody wants to go through that. The right to vote is something that's a duty.

You should do it.

But, you know, if you're going to be harassed for exercising it and you're one of those 20,000, you might think twice. And that's what all this is about. It's not necessarily about winning in court. It's about intimidating people.

Can I ask you, we understand the state's rights angle here, but if a state is presented with a list of thousands of supposedly ineligible voters in their state, What legal obligation does the state have to independently verify this before taking action? Is the state allowed to just say, thank you, Todd Blanche, watch while I crumple this up because you have no authority over us?

Well, that question came up with Judge Boasberg in Washington, D.C., because there was an attempt to really ask, what is the Department of Justice doing here? Are they trying to coerce states into basically doing their own bidding? And are they trying to essentially suppress the vote? Because if they are, that's not just something that they're not allowed to do.

It's illegal.

And what Boasberg was doing in his version of this case, not just looking at California, but the policy nationwide, was asking federal prosecutors, what are you up to?

Now, they had an answer.

And this, I think, gets to your question, which is their answer was, oh, we're.

Not forcing anybody to do anything. And we can't force the states to do our bidding.

But what we can do is recommend politely that the states look into what we think are fraudulent votes. And, you know, Boasberg will see this is ongoing, seems skeptical to me of that claim.

And of course, it's a lie.

You know, I think what's going on is the federal government is simultaneously in real life trying to coerce the states into denying the right to vote to people who have the right.

To vote based on no evidence. And now here's the weird part.

You know, it used to be that the Department of Justice was given a kind of presumption that they were telling the truth. But what cases like this illustrate is the presumption should be the other way.

We should assume they're lying to us.

We have to.

That's exactly what's going on here. They're lying to us.

To a federal judge saying that they're just politely asking. None of this was coercive. And the facts suggest otherwise. So what can they do? They could politely say, hey, can you look into that? That would be no problem. But what's going on is something else.

Well, absolutely. And you're so right. And let me commend you, Professor, for using the word lie. Thank you for being braver than the entire New York Times. If I have to read prevarication or demonstrable falsehood one more time or whopper, because they don't know how to spell lie over there. But I mean, this ties into Alaska.

Can I just say something about that, John? Because it's an important point. The Department of Justice, you know, used to be, especially in the post-Nixon period, people of integrity. There was a reason why these lawyers were trusted, because they were known to tell the truth and to present evidence. And they have a lot of evidence that's otherwise hard to get. And what we've seen in this past year is just the destruction of this. We've seen lie after lie from fake indictments about 86 and 47 in the Comey case to Letitia James to this nonsense that they're just recommending that they look at voters when we know that's all and yeah I'll say it again a lie absolutely.

Yeah yeah but I mean the real thing here is the timing isn't it professor I mean this ties to Alaska as well what happens when the government introduces these incredibly intense challenges like days before an election, when the officials have no opportunities to investigate each individual case in their own states.

Well, that's a really important point, John, and it raises an issue, a legal issue too, which is that we do have legislation that prohibits interference with the details of who can vote so close to an election for exactly the reason that, well, what's happening now. That, you know, common sense says that if you allow for all sorts of investigations a few days before an election, what that's going to result in is intimidation.

And it's going to result in people being denied their rights.

So I think that's also at play here, that we're so close when they're trying all these final maneuvers.

Remember, they tried the.

SAVE Act, they did try to amend the law, they tried that post office move, and now they've got their final desperation of their list that they're trying to impose.

And you know, Thankfully, there was pushback.

Look, we mock Donald Trump's lack of physical exercise, but these guys haven't been lazy. They were trying to cheat with the Texas gerrymander a year and a half ago, Corey. We talked about it a year and a half ago. They were planning to cheat in this election. And look how well those gerrymanders have worked out for the Republicans. But let me bring it to Alaska, Professor, because this is just daffy now. This is the case of the two Dan Sullivans. If you Google, friends, the actual ballot in Alaska, you will see that one Dan Sullivan is listed as the Republican incumbent and another is just another Dan Sullivan. It's not confusing, kids. But the DOJ filed this extraordinary lawsuit seeking to stop certification of the Senate election in the state of Alaska if the Republican loses, because there's a guy with the same name that might have confused voters. Now, Corey, 80 years ago, In 1946, Joe Kennedy Sr. did this for his son, John, running for Congress, allegedly. The legend has it that he was running against an incumbent in Boston named Joseph Russo, and they found a janitor named Joseph Russo to make him run. He had no political experience. We've seen this happen so many times. This is the political party that tried to get Kanye West on the ballot in only swing states, right? This is a political party that said, oh, these Jewish seniors in Palm Beach are with an illegal butterfly ballot, accidentally voting for Pat Buchanan. Sorry, you're too dumb to read a ballot. And now, now this is sacred? So what was constitutionally screwy to you about the federal government's approach to this in Alaska?

Well, you know, I will begin with the Kennedy story, which, you know, is really relevant here. This has been going on for a long time, and there have been attempts to play tricks to do things like confuse voters in order to win an election. Now, I got to say, just from the get go, you know, I think you're right.

There is a way of.

Distinguishing on the ballot between the Republican, the Senator Dan Sullivan and this challenger Dan Sullivan. But it's a dirty trick. And I think we've got to call it for what it is. You know, you know, this is the kind of thing that goes on on both sides.

All the time.

We should criticize it. Here's where it gets, I think, just off the rails. is there's talk within Alaska of prosecuting those who have been involved in this, even though it's the kind of thing that goes on.

I'm not sure what law would find it.

100% legal, right, Professor? 100% legal, I believe?

It looks legal to me, and I don't know what the crime would be. And the other thing is if you were going to challenge it, the time to challenge it was when that Dan Sullivan was going to get on the ballot, not after the fact. And then I've got to just reemphasize, and I know we've talked about this before, but we're getting even more deep into it because if anything, this story is getting more relevant. But the idea that the Department of Justice going along with this series of lies as if they care about election integrity is only going to take action if the Democrat wins?

I mean, how dumb do they think that we are?

Because they want you to know that if Barack Obama or Joe Biden are president, those elections are completely valid. But if Donald Trump is the president, you can't trust those elections at all. And that's the case Donald Trump is making. And we are paying for him to do it. I mean, Corey, could the federal government legitimately challenge a state election if they had actual evidence of real voter fraud or unlawful manipulation? I mean, we have to point out that there's no one in American history. more famous for election fraud than Donald Trump. There's no one. Think about every American who's ever, who's more famous for cheating in elections than the guy who's on tape trying to blackmail or trying to pressure the Georgia Secretary of State, the guy who had cops beaten for a lie because Mike Pence wouldn't break the law and have alternate electors. There's no more famous person for fraud. So where would the line be between legitimate federal oversight? We have this evidence. And what we're seeing now, which is just a pathetic criminal attempt to take control of a state election.

I mean, I think what's so bizarre about it is, of course, there's remedies. If you're questioning whether or not there was election fraud, you could throw votes out.

You could do recounts.

But what they're doing, again, is seeming to say the election's fine unless we lose.

And that's the part.

That just seems bizarre. And what would the remedy be? I guess it's that you have to throw it to the Republican. I mean, that just seems bizarre.

And that's why, you know, one thing about this administration in the second Trump term is that they have just stopped hiding their attempt at corruption, at fraud.

It's in the open.

And that's true, too, when it comes to cheating on the election. He knows that he lost the election to Joe Biden, yet he kept pretending that he won. And he's been doing that here, too, just looking for any lie to basically challenge legitimacy of the vote.

There are really no safeguards in this country to prevent criminal investigations from just being mere instruments of partisan political pressure, are there? We don't really have a way to stop this thing.

There's one huge one, which I don't want to lose sight of, and it's becoming more and more important, and that's we the people. We the people are not just on the jury that's going to decide guilt or innocence, but on the grand juries that decide whether or not an indictment is going to be issued. So the way that things work in prosecution is the indictment isn't.

Just issued by a prosecutor.

It has to be returned by the grand jury who are deciding whether whether or not the indictment goes forward. And when a grand jury says no, that's the end of it. And so, you know, in the Letitia James case, there was a grand jury that said, I don't think so. And I think that's what we would see here, too, that, you know, that somehow criminal, some made up criminal story, I think grand juries there hopefully would push back. I mean, you're not guaranteed it. That hasn't saved us in all of these cases. So, you know, sometimes grand juries go along with it. I will say, too, you know, the you know, famous phrase that a grand jury would indict a jelly donut.

That isn't true.

In important moments in American history, they push back, but it is not the check that I wish we had, which would be people of integrity saying, this is nonsense.

But let me ask you one last hypothetical on this. I mean, let's say that Todd Blanche, because he's so about the law, right? Let's say they could somehow prove that Democratic operatives on Mary Peltola's campaign engaged in improper, illegal candid recruitment, like we have them red-handed. Would that justify throwing out the votes of thousands of American citizens who had nothing to do with it? Where is the constitutional protection for these voters? Todd Blanch doesn't seem interested in that, does he?

No, and I don't think it amounts to fraud, and I don't see what the illegal action even is. And again, if it was illegal, then the time to challenge it was at the time that the ballots were being approved or not. The idea, the guy's name is Dan Sullivan, and he does want to run for this office.

So what's the crime?

It's a crime of, yeah, I think I fairly called it a dirty trick. It's not the most honest form of politics, but there are levels and degrees of of dishonesty, of illegal action, of things that you shouldn't do.

That's what I'd call this.

Getting Cornel West to run for president?

Yeah.

I mean, come on, man. I mean, look at the stuff they've done. They don't care about election integrity. And I don't get angry at Trump and Todd Blanch attempting these little bits of corruption. I get angry at these gatekeepers in the mainstream media who pretending that this is normal and that this has to be taken seriously when there's no bigger practitioners of election fraud in history than the ones claiming preemptive election fraud right now. Haters going to hate. But for me, the bad guys here are the media figures who are just playing dumb about this.

I've got to say something about this, John.

You know, this is a pivotal moment in our country, of course, the midterms. And it's a moment to reflect on what we've been up to. And one of the things that drives me crazy about the way that a lot of reporting has taken place in this administration is that it's like.

Any other administration.

So, you know, there's going to be an indictment of somebody report on it.

Who did the indictment? What are the charges?

And there isn't the kind of analysis that says, what is this a part of? And of course, when you look at their attempt to undermine our elections, that's true in California. That's true here in threatening criminal lawsuits when there's at best dirty tricks.

And it's certainly true.

In the shutdown of opposition and the Comey and James case and the general threat to prosecute opponents, the threats by the FCC. All of it amounts to a president trying to destroy democracy. And if you're reporting on it the same way you reported on another administration, you're not telling the truth. There's a kind of fake neutrality that media has. And that's why you don't say start this podcast with you.

Absolutely. Thank you.

And I thank you for that.

Yes.

Fake neutrality was also I know the name of your punk band back in college. This brings us back to our pal Judge Boasberg, because, you know, he's got this case that And he's asking whether this administration is pressuring election officials in multiple states to remove voters, right, or withhold ballots. So he ordered the White House to disclose which states got orders like this or communications. And they said five states through the Justice Department and Homeland Security disclosures, California, Washington, Nevada, Pennsylvania and New Jersey. And they said we weren't demanding anything. But Judge Boasberg's case, Corey, is really relevant here because it moves beyond one particular dispute, and it's looking at the administration's communications across the country. What is your constitutional concern when federal agencies are communicating with state election officials en masse about removing voters or setting aside ballots?

Yeah, I mentioned it before.

And, you know, the Department of Justice's official position is, yes, we're communicating. We're just giving advice and saying this is what you should look at. We're being helpful. It's like I feel like I've seen this movie before where the bully is like, oh, no, I was just trying.

To help that kid. I wasn't, you know, pushing him onto the ground.

That's what they're saying. We were just giving requests for information, just giving notifications and alerts. These weren't legally binding orders, Judge Boasberg. I mean, that's what they're saying.

Right.

And of course, that's not what's going on. It's a massive bullying campaign. We've seen it in California. We've seen it in these other states. And at some point, there's got to be an investigation of whether or not it's not just one instance of illegal activity, but something more broad. And then, you know, often what happens when government does something illegal is the cover up, of course, is worse than the crime. And I think here, what seems to me, and I'll use the word again, the lying to Judge Boasberg, that strikes me as something that might result in sanctions for these lawyers. You know, Donald Trump is not going to be in prison for any of his official acts.

The Supreme Court has made that clear.

But you know who doesn't have to be?

Lawyers who are lying to judges. And sanctions might be the right way to go. We haven't seen enough of that. This is the same judge, of course, I should mention, who, when the gulag in El Salvador, non-citizens were being flown to this torture prison, said, turn the planes back. And Department of Justice officials refused to obey his order. And they went and lied and said, well, he never really gave the order because it's invalid if you just gave it through his voice rather than through written text, through a memo, through a written opinion.

These guys are so dumb. They're so stupid.

You know, this guy, this judge who is really just trying to do his job has got to be sick of it at this point. And so We haven't really seen the kind of sanctions against the Department of Justice that I think we need to see. The idea that you're going to just trust them or that there are people of integrity there and that are self-governing. I don't think so. This is external, external discipline. And this seems to be a case that might be calling for it.

When child rapists and sex traffickers like Delaine Maxwell get bumped into cushy club fed prisons for no reason other than having a great personality. We don't need to take Todd Blanche seriously as America's top cop. And I'm not going to say things seem to be changing. But when we come back, they're actually indicting ICE agents in Texas. It has begun. Back in just a moment, this is The Oath and the Office.

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Welcome back to the Oath in the Office podcast. I'm John Fuglesang along with Professor Corey Bretschneider. Corey, I wasn't ready for justice for ICE victims in Texas this week, but a Harris County grand jury has indicted ICE agent Mario Alberto Morales. Well, now we know why they gave him up on a charge of aggravated assault with a deadly weapon after this October 10th incident where his unmarked vehicle struck and hit Miguel Para Hernandez. The prosecutors say. This guy lied, and the video evidence shows that ICE's initial account of the incident was a complete lie. He's going to surrender this week. So, I mean, I can't believe this is happening. I don't really understand why they would give up someone now when they have shielded people who've actually pulled triggers and killed citizens. But what does this tell us about the legal accountability of these federal law enforcement officers? I thought they had a wall to protect them from anything.

Well, we have a theme emerging in this episode of The Oath in the Office.

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Where you get this kind of in-depth analysis. And what ties these stories together is, again, the Tenth Amendment, the role of the states.

I use that phrase, dual sovereignty.

And the real answer to the puzzle is that it's not the Department of Justice that we keep rightly railing against who has been involved in such malfeasance.

Who's bringing this indictment, and they never would.

What's happening is that a local prosecutor recognized that.

Their job is to enforce the law.

And if you're engaged in an assault or an attempted assault and violence against citizens, that's not something that's within the course of your duties.

That's illegal. It's a crime. And so what I've.

Been urging again and again on this podcast when we've talked about ICE is why don't local officials step up? and issue indictments, go to the grand jury and ask for an indictment to be returned. And now we have our answer, which is they've had enough and they are ready to do it. And so in this case in Houston, you have what seems to me to be an egregious instance of what we've seen again and again, by the way, using cars to attack people or to try to attack them at least.

And local prosecutors don't work for the federal government. That's why that idea of the.

You know, this prosecutor is willing to say crimes have been committed. Yeah, it's ICE. Unlike Donald Trump, they don't have access. absolute immunity. They have some qualified immunity.

But this case calls for an indictment.

Yeah, we should be expecting more of this in the weeks to come. Corey, how does the supremacy clause affect the ability of state prosecutors to go after federal agents? I mean, they do have some legal protections, but what are what are the limits?

Well, the kind of immunity that under federal law these ICE officers have is called qualified immunity. And what it means is it's not exactly the same if any ordinary citizen commits a crime. Ordinary citizens don't have crimes. You commit a crime, you can be indicted. But, you know, as long as you're in good faith, for instance, pursuing your official duty and something goes wrong, that's the kind of thing that would be protected. And immunity, I should just say, is something that blocks off the possibility of of an indictment. But when something is egregiously wrong, when it's really a crime and when it's committed with malice, that qualified immunity isn't going to protect these officers. And that's why for a long time I've said, again, the Department of Justice is going to interpret things differently. They're going to say these are ICE officers for political reasons. They're not going to bring that indictment. But a local prosecutor doesn't work for the federal government. And they looked at that law. It's not that this ICE agent doesn't have a defense. You better believe you were going to hear the words qualified immunity. But he thinks the facts are egregious enough that he went forward with it. The same thing happened in Minnesota. This is the second instance of it.

And you know what? Common sense has been demanding this for so long.

So I'm relieved to finally see the law being enforced, not by the federal government, but by the state. So, you know, somebody on the other side and what this Just last point about the supremacy clause and just what that is. The Constitution talks about the idea that the Constitution and federal law is supreme, but that doesn't mean that we only have a federal law, and it certainly doesn't mean, I've seen ICE officers say this, well, I work for the federal government, so I can do what I want. You work for the state government, you lose. No, that's not how it works. If there is a federal law that protects you, and that law is constitutionally valid, yes, the courts will consider that, including in this case.

But the point is, There is no.

Federal law that gives ICE agents the right to commit crimes at the local level.

And let me remind everyone, this is the same federal government that's been telling us for two years that they can deprive someone of liberty without due process, without following constitutionally required procedures, just because the person is subject to immigration enforcement. So, I mean, to say nothing of Fourth Amendment protection against unreasonable searches and seizures, like they just don't view these people as criminals.

People.

I mean, can the government deprive somebody of liberty really without giving them a hearing? They've been trying to make this case for two years now. We've watched them do it. It's going to come down to state authorities defending our constitution along with the judicial branch against these fascists.

Right.

You know, and I would have thought that it would be Alvin Bragg in New York City and Manhattan or the Philadelphia prosecutor, progressive prosecutor who brought these cases in the first place. I didn't predict it was going to be Texas. That is where it's happening in Houston. But I hope it's contagious. And that the thing that we've been saying since really since we started the podcast, which is you commit a crime at the local level, you know, local prosecutors should go after you. And it doesn't matter if you're an ICE agent. We've now got two instances of it. And I'm looking to see this spread throughout the country. There hasn't been a deterrent effect. ICE believes that that supremacy clause, which doesn't say this, they believe what it says is I might work for the federal government. I can do whatever I want. And that couldn't be further from the truth. And that's the real education. That's the civic education all of us, including I, themselves, are getting in these cases. It's not the end of the story. The Department of Justice has been full of malfeasance. We've seen that in the election cases that we talked about in depth. And you might see, you know, and I should say I've been talking to a lot of experts in the area of federal jurisdiction, federal courts. There's a whole area of study and classes and scholarship about this question of when the federal courts have jurisdiction, when the state courts have jurisdiction, when a federal prosecutor has jurisdiction, when a state prosecutor has jurisdiction. And it's not that my argument and my way of thinking about this isn't going to be contested. And I could imagine, unfortunately, the Department of Justice in its Texas offices starting to intervene here and try to basically take this case away. Because I don't think, I think they want not just immunity, they want impunity for all the ICE officers.

So this is a battle that's beginning. It's looking good.

Maybe they don't want the political strife. Maybe the president doesn't want them getting involved in this. It highlights the criminality that we've seen so often from ICE. But it's potentially going to be the case that the.

On the wrong side. Yeah.

I mean, absolutely. That's why I think the states are becoming the most important firewall we have against, against this kind of overreach. But are there any safeguards constitutionally professor to prevent the DOJ from becoming this instrument of political retaliation? Does the constitution itself protect prosecutorial independence enough, or are we just relying on, you know, norms and politeness?

Well, unfortunately, the answer until these cases on the specific issue, which I keep asking people, why are local prosecutors not indicting these ICE agents? And that was the case, you know, over and over as we saw crimes reported on the news.

The answer, unfortunately, was.

Well, you need a prosecutor who's brave enough to bring these cases. And you have a federal government which, under the theory of the unitary executive, sees the entire Department of Justice under the control of the president. And the president doesn't want the rule of law. He wants dictatorial power. So you weren't going to get it there. The only place you were going to get it is at the local level. And it was a puzzle why it wasn't happening before. Now that it has, I think you're seeing, yeah, if you get the heroes who are willing to enforce the law, the law is there. And I think federal judges are going to be willing here. This will be in federal court, are going to be willing to stand up for the rule of law.

I mean, you know, Keith Ellison is a man I've met many times, and he's a ferocious legal mind. Why couldn't he prosecute the federal officers for the killings of Rene Good and Alex Preddy? I mean, on the surface, it's just because there's a cover-up. They are systemically withholding evidence, right? I mean, that's the biggest reason. They're excluding state investigators from actually investigating these homicides. Like, like Is that an example of where a state's hands are tied by what appears to be federal corruption and a cover up of literal killings of citizens?

Well, I have no doubt that ICE, exactly as you say, is going to try to block off any investigation to deny evidence, to keep witnesses from talking. But that's the beauty of the law, that when you have a criminal indictment, as you have here, and you have this local prosecutor, I said likely it's going to wind up. in federal court, but regardless of where it is, there's subpoena power. And it's not the case that the federal government is somehow immune because you work for the government.

That you don't have to answer subpoenas.

You have to hand over discovery documents, information about what happened. You have to sit for depositions and you have to tell the truth because otherwise you can be charged with perjury. And that's the process finally that's unfolding. If you don't have That criminal indictment, the subpoena power, the investigative power is a lot less.

So that's why I'm very happy that things are moving forward here.

I mean, we have to remember the federal government like locked out the entire Minnesota Bureau of Criminal Apprehension and they wouldn't release even the most basic of case details. They wouldn't give the names of the agents who murdered these citizens to local prosecutors. This is why Ellison has this federal lawsuit against the DOJ and Homeland Security. He's just trying to get the evidence out. I mean, we're witnessing this and it's like the federal government is covering up the killings of state residents and the people who yelled states rights my whole life, professor. They're pretty quiet now when it comes to this question.

Yeah. And, you know, I got to say, it's why I'm so hopeful in these two cases, at least. And as I said, I think it'll spread because once you say, hey, why is Houston doing it? We're not doing it. We're supposedly an even more progressive state or city. And, you know, I think there isn't a good answer. So we might see more of it. And when you have not just an investigation, but a legal process that includes a judge who's going to enforce demands for information to be handed over to prosecutors, that's a totally different kind of investigation than just requesting information. And, you know, as much as this administration has resisted judges at different points, like Judge Bosbury, it comes at a big cost. And they realize, government officials, that they might be sanctioned for it. And so I'm predicting here, you know, I'm optimistic that we're going to get more information.

I think, too, let's remember, yes, these are.

Two individual examples of ICE agents causing problems. But here are some of the questions that I want answered that we might get from the investigation. To what extent was this ordered from higher up, from the head Of homeland security from the president of the United States.

The cover up, the cover up of it, the protection, the cover.

Up, the aggressiveness that resulted in basically lawless criminal action by ICE agents. Has that encouraged? Is that part of the training? So, in other words, we're not just going to learn about these cases. We're going to learn about what's been going on behind the curtain of ICE generally.

Especially when you've got government officials lying about the victims. I mean, let's not forget, like we had up to the highest levels of the executive branch saying that these dead Americans were terrorists and that they, I mean, it's just out there. There has to be some legal recourse for these grieving families. Like, I know it's election day, so we're all emotional. But, Corey, these folks can't be forgotten.

I think that's right.

You know, and what was so frustrating about covering these stories, John, for so long since Trump has taken office is the feeling of.

Justice not being done.

We're watching with our own eyes on video, attacking civilians for doing nothing more than protesting, or in some cases, not even protesting.

Just going home. What were we able to do? We knew it was wrong.

We knew it was unjust, but the mechanism wasn't there because the federal prosecutors weren't doing anything. Unfortunately, state prosecutors... until now, weren't doing anything. And now the tide has turned. And so that feeling that the law is going to be vindicated, even against this occupation force known as ICE, the stormtroopers of Donald Trump, we're finally seeing the beginning of the restoration of the rule of law.

Let's take a quick break. And when we come back, let's address and save the entire future of democracy. This is The Oath in the Office. Don't go away. Welcome back to The Oath in the Office. I'm John Fugelsang. Professor Bretschneider, I got to ask, you're a man who spent your academic career studying and teaching constitutional government. Has this political environment, have the last 10 years just changed the way you have to teach constitutional law?

Absolutely.

I'll tell you one thing is it was a pretty boring subject.

I didn't have a podcast.

Somebody like you wasn't necessarily interested in talking to me about who the president could hire and fire.

It was kind of a snooze fest.

But what you see now is that it's not a snooze fest, that what constitutional law is really about is the question of whether or not we're going to have a democracy at all. And because constitutional law has so badly been rewritten by Reagan era justices, lawyers, I should say, turned into justices, people like John Roberts and Sam Alito, into a dictatorship where presidents have.

All the power.

To my mind, the question of the future and the laws that we need this next Congress to pass are all about constraining a president and reviving our democracy.

So that's what I've been thinking about and working.

On and working on a new book about trying to dismantle the unitary executive that we've created to the monarchy that we've created and to try to push back and constrain a president. And, you know, the law created this situation that we're in. It handed over all these powers. through legislation, through court cases, and it can also be undone by the law.

Can you announce the book? Are you allowed to announce the new book and get the title and all that fun stuff? Because I just announced mine this week. Can we hear yours?

Oh, John, you're so far ahead of me.

And, you know, I'm getting like slightly competitive where I've got to catch up, but I don't even, I can't even say I have a strong enough title that I'm.

Willing to announce. You're a real writer. You're a guy who take, you have to take sabbaticals, for God's sakes, you got to figure it out. But, you know, this is what keeps me up at night. Are we approaching a point, Professor, where The main question isn't whether a president can legally do something anymore. The question is whether the constitutional system has the strength to stop him from doing it. Feels like that's where we're at.

I love that way of putting it. And, you know, I have I can get detailed.

I mean, I'll just mention a few proposals that I think we need. And when we're having congressmen on like Ted Lieu or senators on like Sheldon Whitehouse, I've been asking them. these questions or the great Oregon Senator Ron Wyden. They're thinking about this. What are the laws that we need in order to reclaim our democracy?

Here's one, the pardon power.

It is absurd that you can use the pardon power in order to pardon your co-conspirators, your family. And we need legislation to rein that in. The Department of Justice that we've been talking about throughout this whole episode, we cannot trust the person working for the president, the attorney general, to be the person investigating the president. We saw that in Trump's first term with Mueller. It was totally ineffective. And there is an alternative system, one that we had in place between the Carter era and Bill Clinton. Bill Clinton unfortunately killed it. It's called the independent prosecutor, and it allows for a prosecutor who can go after the president and his cronies without being fired by that president, appointed by the judiciary. We also need a new immunity law to undo this idea that somehow presidents are above the law. So those are a few thoughts of how to restructure our government, how to reclaim our democracy. And I want to see inflation matters. Corruption absolutely matters. But so, too, does the structure of our government. So those are the kinds of things that I'm going to be asking as we continue to have congresspeople on this program.

Corey, what happens if this administration in their lame duck period now just decides that the courts and the Congress and state governments are that these are obstacles to an agenda. And the American people elected us in a landslide. It was almost one percentage point, but you know what they're going to say. We have a mandate, so we're going to view the courts and state governments as obstacles to the will of the people rather than legitimate constitutional checks. I mean, we're close to that, right?

Well, we've seen it before, so it's not a far-fetched question. Think of January 6th. I mean, what that was about was not just the violence on the Capitol, but it was an attempt to intimidate Mike Pence into refusing to certify an election. And we might see that again. Judge Luttig has been at the forefront of this. I should say Judge Luttig, in many ways, the hero of January 6th, because he was the person by all strong reporting that really did convince Pence, no way.

Can you do this.

And what Luttig has been worried about is in this lame duck session, a refusal by the clerk of the House to seat Congress people. And, you know, this person was appointed by the current Speaker, Speaker Johnson. That's not somebody that I trust, my democracy in the hands of.

I don't know much about this.

Clerk, but, you know, if Ludwig is worried about it, that's a reason to be concerned. But here's my answer to it. I think there are two reasons why it wouldn't happen. One is, and the more we could talk about this, the more it would be a deterrent effect on this malfeasance. It's true that the separation of powers between the courts and the Congress often means that the courts, the Supreme Court in particular, will call something a quote-unquote political question. And what that means is they're not going to intervene in the internal workings of Congress.

Like who gets seated or who doesn't. But the clerk is not a congressman. He isn't Congress. He's a civil servant.

So I think there's a very good argument that the courts would just say, hey, you don't have the power to do this and knock it off if you try. And then the main check is, you know, that's what we're talking about, the massive pressure that should be brought to bear on anybody who considers malfeasance like this, that It's unacceptable in a democracy and that we, the people, will make our voices heard. I think courts will protect us on this, but the ultimate backstop, of.

Course, is we, the people.

Well, Corey, this is midterm election week. We waited a couple of long years for this. And, you know, America really does eventually, generally... at some point, tend to get around to doing the right thing at some point eventually. But I'd like to close out by referencing your more recent book, The Presidents and the People, because that's a book about five presidents who threatened democracy and the citizens who fought to defend it. And your whole theme in the book is that it's ordinary folks who were not just spectators in this constitutional system. So let me end by asking you, For the two years to come, with this guy as a lame duck, and the subpoenas will be coming, and there will be people putting their hands on Bibles and being made to testify in front of congressional committees. But what does American history tell us about the responsibility of citizens when elected leaders threaten democratic institutions?

I do think you're going to see from the House of Representatives investigations from Congress pushing back on this president in a way that hasn't been true in the past two years.

But as you say.

and this is the point of my research, it's not enough. There has to be a direction of where these investigations lead, and there has to be a galvanization of the American people to demand the kind of laws that I was talking about, to reform this system of government, to deny immunity to presidents, to crack down on corruption, to see it prosecuted. We spoke to Joyce Vance, you'll remember, and listeners will remember, about why we don't really have the laws in place that would make Trump's corruption obviously criminal. Well, that needs to be fixed. And so where's that going to come from? It's only going to come from we the people, from people demanding of our representatives that we get this legislation, that we get enforcement of the law. We've had lawlessness. We've had monarchy for two years. Now we're trying to recover our democracy. And it's not going to just happen as a result.

Of an election. It has to be demanded by we the people.

Professor Brett Schneider, what is the best way for our evil army of the day to keep up with you and to follow all your work when they're not listening to the podcast?

Well, I'll say, you know, John, the whole point of the podcast is to try to do exactly what we're talking about, to not just, you know, report neutral on what's happening, to see the threat to democracy and to act in order to recover it. And so, yes, if you're listening to us, please leave us a review. You can find us wherever you get your audio.

Podcasts. We're also on YouTube.

And check out the Oath in the Office sub stack where we're posting about what's happening. And, you know, we're going to continue to bring heroes to the podcast. I thought that episode of You Missed It with Frances Haugen last week was amazing. You know, somebody who really risked her career in order to tell the truth. And so we're going to continue to highlight those heroes, to highlight we the people who are demanding protection of our democracy.

Professor, I want to thank you as well as Wendy and Beowulf and all the brilliant minds who put this show together. I especially want to thank all of our deeply sexually attractive listeners and subscribers. Thank you guys so much.

I love the pandering.

Oh, absolutely. That's what I'm here for. Yes, I'm a charming sociopath. And my name's Fuglesang. I'm on SiriusXM Progress, five days a week, noon to 3 p.m. My book is out. It's called Separation of Church and Hate. My next book is on sale. It's a very brief history of toxic authoritarian Christianity called... Fake Christians. So you'll be hearing an alarming amount about that book in the weeks to come. I'm on Substack, too, because I'm carbon-based life form. And Corey, thank you so much. You know, in the last two years and all the strife and all the fear and all the uncertainty and all the human suffering, I just want to thank you for doing so much to teach so many of us about the power that we have in that Constitution and the power that the government doesn't have. And I thank you very much for all you've done to inspire me and so many others.

Thanks so much, John. And back at you. What a pleasure it is to talk to you every week. And, you know, we've been through a very tough two years, but the humor, the depth of the analysis, the depth of the reporting, all of that is, you know, given us all strength as we try to reclaim this democracy. And I really believe that's where we're headed.

Over the next two years.

Well, I thank you so much. And we will see all y'all next time on The Oath in the Office.