Deported to Torture? The Supreme Court Greenlights Trump

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Welcome to another edition of The Oath and the Office, the podcast. I'm John Fuglesang. It's so good to be here with you. Right now, we're enjoying a time when the Republican candidates for the midterms are running away from Donald Trump like Trump runs away from light rain on his hair. They're not breaking up with the president. They're just changing their relationship status to it's complicated. So let's bring in the star of our show, the author of The Oath in the Office and The Presidents and the People, a book all y'all should own as well. Rock star from the poli-sci department at Brown University, please welcome the man that Wu-Tang Clan calls the Mac, Professor Corey Bretschneider. It's good to see you, sir.

Good to see you, John. We have quite a show.

We're going to talk about this Supreme Court order clearing the way for third country deportation, sending people to countries.

That they're not from. We'll talk about that in depth.

And of course, there's a lot more to discuss and update on what's going on with Trump's attempt to ban whole news organizations that he doesn't agree with from the White House and a lot more.

Well, let's talk about this because the ruling just came through now. Back on September 18th, years ago, the First Circuit ruled that people facing removal to a country that isn't where they come from, have to get effective notice, right? And they have to have a meaningful opportunity to raise their fears about persecution in this third party country or torture. And the administration thought, well, that's too humane. So they asked the Supreme Court to intervene. And the six justice majority, the dirty six, just lifted that lower court decision and said, go ahead. Yeah, who cares? No, go ahead. If they get persecuted, it's on them. The justices did not explain why. Sotomayor, Kagan, and Katanji Brown Jackson all dissented from the ruling. Professor, I mean, what's the fundamental constitutional question in this third-party deportation case, beyond the fact that these folks appear to be sadists?

Well, you know, I'll sum it up in one word, because third-party deportation sounds like an abstract idea, and the word is torture. We have examples of people who are being sent to countries, being deported to countries that that they're not from. And that's, you know, should raise a lot of questions as it is. But I'll give you one of the main examples. And I should say, too, there are 25,000 cases.

This isn't a small amount.

One of the people involved here was born in Cuba, Cuban national, and was deported to a country that used to be Swaziland and is now known as Eswatini. This is an absolutist, authoritarian country with essentially no human rights.

He didn't know where he was headed.

And all of a sudden, he found himself being led through, as he describes it, these metal doors and was in a prison, isolated, and no access to his cell phone. He had to go on hunger strike as a way of trying to get attention. Finally, there was some recognition of what was going on and realization that he had been sent to this country. But imagine that, being sent from the United States where you've lived and being deported, not back to a country where you're familiar with it, but one that you don't even know its name. This is a country that's name changed not too long ago.

Not a lot of people in the world.

Know about this country. You can't even find that on a lot of maps.

Yeah, exactly. What's the issue?

The issue is that the Constitution of the United States guarantees due process. The argument is that if you have no way to meaningfully check to make sure that you're not being deported to a country that is going to torture you, then there is no due process. There are other examples, a case in which there were deportees to Equatorial Guinea in which there was documented torture. So, you know, these are human rights abusing countries that the Trump administration has made a deal with. And although the lower court said, hey, this is a due process violation, the Supreme Court on a shadow docket cleared the way for these deportations to continue to happen. There'll be more litigation over this. This isn't the end final decision. but it certainly clears the way for a massive human rights abuse by this administration.

Oh, my God. So, I mean, let me ask some very dumb questions about this, Professor, because the First Circuit, I know, they didn't say the government can never deport someone to a third country. They said that the person must get notice and this meaningful opportunity to argue that they face persecution. Now, the administration says, oh, no, no, diplomatic assurances from foreign governments, that's sufficient to protect deportees. I mean, They're literally saying, trust us, they promise not to torture you. The bad guys gave us their word. I mean, why did the First Circuit reject that as a substitute for giving the individual the opportunity to be heard?

Well, that phrase, meaningful opportunity, might sound abstract, but what it means is that you actually have to have a chance to show that you're demanding that the administration show that you're not going to be tortured, that there really was an actual investigation of these country's were the deportations, these third countries that individuals are being deported to. And as you said, the First Circuit didn't say that this can never happen. But what it certainly did say is that there has to be meaningful evidence, not just any kind of evidence, any kind of claim, that the place that you're going to be deported to isn't going to torture you. And when it's an authoritarian regime, as is true of Equatorial Guinea, for instance, Not only is there no guarantee, there's probably a likelihood that you will be tortured or a good chance of it, to say the least. And so, you know, what this means, meaningful opportunity, is that there is some substance to it. The administration's argument, and this is just reiterating and elaborating on what you already said, John, is this just trust me theory.

And it's like, you know what?

We asked these countries, are you going to torture the people that we're sending to you? And they said, just trust me, we're not going to do it. But when it's an authoritarian regime, when there's no transparency, when people don't even know the name of the country that they're going to, you know, we're so far from any process that's due. It's just basically the administration sending people places that they want. And again, the Supreme Court just cleared the way for this to happen.

I mean, the First Circuit Court's decision, I guess, Professor, was maybe don't put human beings on a plane to an undisclosed third party country without letting them explain to you why they might be tortured there. It's really radical. Tell the person where you're sending them. But this administration is also just saying quite flatly they have final removal orders and therefore the authority to carry them out. I mean, where does that authority end?

Well, what the administration is saying, and, you know, when you and I talked about this earlier in the week on your radio show, I predicted that the Supreme Court was going to do precisely this, because when it comes to matters of immigration... They tend to be just extremely deferential to the president of the United States.

Oh, they enjoy it a bit too, Corey. They enjoy it a bit themselves.

That was true in the travel ban case.

When it came to who gets into the country, they deferred enormously, even in the face of an explicit Muslim ban, one that the president kept telling us was a Muslim ban. They said, well, the administration is saying it's just about security. Even though we've seen no evidence of that, let's trust them. And now this administration is saying, Just trust us.

We made a.

Deal with Eswatini, and I should say that Equatorial Guinea, Eswatini, these countries are being paid to take these deportees, and they are treating them not just as prisoners, but in some cases as prisoners who are going.

To be tortured. What process is due?

Well, first of all, it's a right of persons under the Fifth and Fourteenth Amendment. No person shall be deprived of the due process of law.

Right, not citizens.

And it isn't just a limit to citizens. So certainly these deportees are owed that. And I would think, I mean, I just don't want to miss this point. Forget about torture. OK, that is obviously required. But a minimum as well is that you know where you're headed and that they just sent this Cuban national to Eswatini without any knowledge of where he was going and that he found himself in a prison cell. Behind closed doors, they transported him, by the way, in a military truck once he arrived in the country, still not knowing where he was.

He had to ask again and again, where am I, before he figured that out. And this is not a small number.

I should say most of these deportees are being sent to Mexico, but we're talking about 25,000 people. So it is in the thousands of people who are being sent to these countries. There's an attempt to document them. That's where the number 25... comes from, from a nonprofit that's been tracking all this.

But the whole point is there's no transparency. We don't know what's going on in these countries.

Yes, we have this story out of Eswatini, this story out of Equatorial Guinea, but how many stories do we not have out of these thousands?

Well, also, I mean, there's that, you know, wild factor that let's say country B sends you to country C and now you've unlocked the human rights version of connecting flights, right? I mean, Just because you're sent to country C and the Supreme Court said that's okay doesn't mean that's where you're going to stay either. But if the administration says, well, we have diplomatic assurances that these people will be safe, I mean, does a court have to accept that representation? Or does the individual have to have the opportunity to contest that? That's what I don't get.

It's a great way to dig deep into this, John, because to my mind, common sense tells you, and any legal sense, frankly, that if you have a right to due process, that just trust me is not due process. I think that's almost law 101. Due process means that there has to be a meaningful way that you're assuring people that their rights are being respected, including the basic right that's at issue here, which is the right not to be tortured. And yes, I would think that information about where you're headed and what this country is to assure people that, yes, they really are not going to be tortured would be part of it.

And I should say, you know.

The administration, Trump, cites a lot of statutes in which Congress has handed over massive power to the executive, to the president, when it comes to issues of deportation and immigration. But the Constitution stands above that. The right of due process constrains any law, any action by a president. And it's not a meaningful idea of due process of saying, deferring to this administration, which says, just trust me. And of course, there are three dissents from the liberals on the court saying exactly that.

Yeah.

So, I mean, here's my question, though. How should courts think about the possibility of this? It's chain refoulement, I think it's called, right? Someone being sent to a third country that then sends them, again, somewhere else where they could face persecution and torture. I mean— Are the courts obliged to consider that? And it sounds like you're also saying that the courts are obliged to give an individualized hearing every time the government changes anyone's destination country.

You know, I don't want to say, and I think none of the courts are saying, that there's never a case in which a third-party deportation would make sense.

And so I'll just give you an example.

If somebody's been convicted of a crime and after they've served their time in prison— they're being deported, a lot of countries don't want to take the person back, even if they were born in that country. Okay, so what does the government do? They don't have a right to remain in the United States, and they don't have the ability to go back to their home country.

In that instance, a third country deportation.

Might, and I'll emphasize might, make sense, but it's subject to a guarantee, and this is part of the law, and it's part of basic morality, that we're not going to send these people back to a third country in which they're going to be tortured.

Now, how do we assure that that's not going to happen?

What the administration says, what the Solicitor General seems to be saying, the person who argues for the administration before the Supreme Court is, well, we paid these third countries money and we asked them, are you going to torture the people that we sent to you?

And they said, no, that's not meaningful due process.

That's not any kind of investigation that you really are having your liberty treated with respect.

And to say the least. And so that's what I'd say.

Yes, in some cases, you could have due process that results in a third country deportation, but that's not anything that's going on here. And the Supreme Court, not surprisingly, but disappointingly and wrongly, allowed it.

I mean, that's the creepy part, right? Oh, this government got a permission slip from another government. There's something perverse, is there not, Professor, about making the person who might be tortured prove the government wrong before the government tells them where they're being sent? I mean, the Supreme Court has allowed this to proceed. So what precedent has now been set for future administrations?

You know, as bad as the way you put it is, I think it's actually even worse. Because even if you could prove that you're going to be tortured to the place that you're going to be sent, you know, that you had the documentation, say, for instance, of this Equatorial New Guinea's human rights violations, Where's your opportunity? Because the government isn't even telling you where you're being sent. They're not giving you that moment in which you could object, where you could present evidence.

Where's that happening? There was no moment.

Where these deportees appeared before a judge and got to say, hey, they're going to send me to this third country. So, you know, it's even worse than it sounds. I should say all this really began in some ways, and we began reporting on it and analyzing it with the deportation of Abrego Garcia, who was... deported without due process to this gulag in El Salvador, even though he's from Venezuela, under the Enemy Aliens Act. And, you know, Judge Boasberg said, no, don't send him there. And the administration did it anyway and sent others to this gulag prison. So the administration's been willing to just disregard court orders before. What's different now is these aren't necessarily members of nationals of quote-unquote enemy nations.

The administration is just claiming that they can have.

This very thin idea of due process. They're not saying, as they did in that case, no due process, but they're saying all that's required is that we essentially get this promise from these third countries. And to my mind, that's basically the same thing. They've just, far from retreating, they've just expanded the degree to which they're willing to violate people's, not just due process rights, I want to emphasize this, human rights, rights not.

To be tortures. I mean, they're throwing you in a cage and then handing you a plane ticket with the destination blacked out. That's what our government's doing.

All right.

We have to take a break. But did you get a chance, anyone out there, to see the new Donald Trump campaign ad? I hope you did because you paid for it. Let's talk about state media when we come back on The Oath in the Office.

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Welcome back to The Oath in the Office. I'm John Fugel saying along with Professor Corey Bretschneider. Now, you may have heard the administration is airing live TV ads featuring black and white Donald Trump and a lot of, you know, greatest hits rhetoric about the globalists and the deep state and going after warmongers, which I guess means it's an attack ad on himself. Now, the curious thing is when you get to the end of this commercial, most of which is footage from a 2024 campaign ad, it says at the bottom paid for by the U.S. government. which means it's paid for by you. Because why waste campaign money when you can get the taxpayer to pick up the tab? Now, the administration is trying to get around this by saying these are public service announcements. But as you know, public service announcements traditionally tell you things like don't text while driving, get vaccinated, check your smoke detector. If this is a public service, Professor, the service appears to be informing the American people that Donald Trump would like the American people to know how much Donald Trump approves of Donald Trump. What do you make of this, Corey? What is the legal line between government communication and political campaigning? I mean, this is astonishingly tacky.

Well, it's certainly tacky.

And what the president is doing is, you know, his common technique, having watched him closely, you know, for as many years as he's been in national politics, I can tell you that what he is an expert at, and I wish this wasn't the case, is going right up to the line and just either barely crossing it or not crossing it so that it's hard to make a case against them.

Well, it's almost like he knew Roy Cohn.

It is so Roy Cohn. And so before we get to this one, I'll just give you an example. When he was campaigning in 2016, he was at a rally and he started saying, you know what we used to do to protesters?

We used to rough them up. We used to Beat them.

And as one of the protesters in the crowd is actually being beaten up, he says, but don't hurt him. And he actually wins the case when he's sued for essentially inciting this violence. He says, well, this is my First Amendment free speech right. And when I said don't hurt him, I made it clear that I was speaking metaphorically. And a court bought that. A federal court bought that. That's what so disturbed me. So to return to the present case, here's what's going on. What the law says is this.

That it's not a PSA. It is a campaign ad.

If you have a call to action and you have sometimes the language is used in various statutes, electioneering, that you're saying, vote for candidate A or vote against the Democrats. And without that call to action, what he's going to argue is, well, I didn't say those magic words. And so this is just informing the public about what's going on.

When I give the State of the Union.

It's not a campaign ad. I'm just telling us about where America is, what our policies are.

But when you actually look.

At the campaign ad, which is what I'll call it, talking about how he's rooting out the communists and going after his enemies, it is so partisan.

It's just that he pulls back.

Just as he did in that example that I gave, the violence in the campaign rally, at the last second and doesn't say vote Republican or vote against the Democrats.

He doesn't need to.

That's really his deviousness right there, walking right up to the line, probably crossing it, but not so much that it's obvious that he could bring a case. The other point is he knows that no way is this attorney general bringing a case against him, another deep flaw in the system that he's exploiting.

That's it, exactly. Who's going to go after him for this? The FCC? I mean, this is a campaign commercial that's playing witness protection, you know? Like they say that the spots were just reminding Americans to love their country, that that's what this was about. And I guess loving your country means watching Donald Trump stride dramatically down a hallway in black and white, promising to demolish his enemies and rout the media and liberate. I mean, all that's missing is the QR code, right? And how I can buy the commemorative hat from all this. But I know, Corey, that federal appropriations law has long restricted the use of taxpayer money for publicity or propaganda, right? But I guess I have to ask, what does that mean? Like, what does that actually prohibit after seeing an ad like this?

Well, you know, it's not just the basis of one law. I think there's basically all campaign finance law is based on the idea that Certainly that you can't use money that's provided by all of us for one specific partisan purpose. It's one thing to provide public money for candidates or something like that where it's spread across evenly and there's a process for making sure that it's.

Not serving one person.

But when a public official, in this case the president, just takes taxpayer money and uses it for a partisan agenda– That's a violation, again, of a lot of campaign finance laws that not all of them remain on the books. So much of it has been struck down. But what does remain certainly prohibits that. And but now how does he get away with it? He says, oh, it's not a campaign ad. It's just me telling the American people what's going on. And, you know, this is a line that I wouldn't want to say is just crossed by Trump.

You see it in less obvious, less extreme degrees.

Members of Congress will often use the mail system that they have access to. to provide information in a way that sometimes is really just advancing their own partisan agenda. So, you know, he's exploiting something that's out there, but he's just taking it so far because he knows no one's really going to stop him. One real problem this is revealing too is how much of our system relies on norms. So both ethics advisors, ethics czars, as they're sometimes called, from Democratic and Republican administrations, Norm Eisen on the Democratic side, Painter, on the Republican side, have both come out and said, this is a no-brainer.

Like, no way can you do this. And how would it have been stopped in a previous administration?

It never would have gotten past the published line because the ethics advisors would.

Have said, no way can you do that.

Now, what is the White House ethics advisor in a Trump administration saying? I mean, it's just a non-existent, non-serious entity.

The world's easiest job. Yes, sir. Is that the easiest job in the world?

Sorry, John, go ahead.

I'm sorry. I'm interrupting you. It's so rude. But I mean, that's the easiest job I've ever heard in my life, isn't it?

Yeah.

That's Rush Limbaugh's fact checker easy.

Well, you know, I needed you to interrupt there because it is such a setup to a joke. What is the ethics advisor in the Trump administration?

And Yeah, not a serious job.

No, that's a man who gave up and started vaping years ago. But let me throw some numbers at you. According to the reporting– He's.

In some back room just enjoying kicking back.

An easy job. Saying whatever if anybody comes by.

Right?

It's like, oh, I'm Melania's acting coach. But according to the– The same person. Yeah. So one of these ads cost almost half a million dollars. And the spending on the other one was a little above $ 319, 000, which is a lot of public money to discover that the president is very, very proud of himself, Corey. But they're also saying, well, he's not on the ballot, so it can't be a campaign ad. Does it matter legally if he's not on the ballot or can government funded advertising still be illegally partisan, even when the president's not a candidate? I mean, there's literal it's literally footage from a campaign ad that they're using in this.

You know, sometimes I feel like I'm worried that, you know, I'm giving the administration better arguments than they have, because I think that is a ridiculous argument, that he's not on the ballot. Of course, you can violate campaign finance restrictions and allocation restrictions of how taxpayer dollars are used without yourself being a candidate. If you spend public money that's allocated for public purposes, for partisan purposes, even if you're not a candidate, you can still be guilty. So a senator campaigning for, you know, a colleague or something, using public money that was allocated for public works, but using it for campaign ads.

It doesn't matter if you're running or not.

The better argument is what I've been saying, that there is no call to action. But, you know, leave it to them to make the worse rather than the best argument here.

Oh, my God. I mean, it's also the Hatch Act, which I know is not a magic Hogwarts spell that says government propaganda is illegal. But I mean, I guess the governing philosophy is if someone calls us illegal, we'll call it a PSA. And if someone says taxpayers shouldn't fund it, we'll call it a PSA. I mean, once the government can just take a politician's campaign ad and put it on TV and then send the bill to the taxpayer, I guess it's it's ended the tradition of the politician pays for the politician's own ad. We're doing it now. We're funding government propaganda.

Yeah, exactly.

And, you know, we've covered so often the issues of free speech and we'll continue to cover them talking about the White House press corps and his shutdown of media organizations that he doesn't like. But this is a different side of that same coin, that if you really are trying to set up, in place of a free press, a propaganda network in which you use government money to just spread your own messages... You know, this seems like a textbook example.

So, yeah, I mean, there's no independent agencies. They all serve this guy. It's the most corrupt administration by far. It's more corrupt than Trump's last administration. And I mean, the FCC is not going to do anything. The attorney general is not going to do anything. What remedies still exist, professor, if a federal agency or a chief executive just violates the law? Can I? Can a taxpayer sue? Can Congress intervene here? I mean, the Government Accountability Office, are they an enforcement mechanism? I mean, is there anything? Or do we just have to sit here and watch these swine roll around in dough?

Yeah, I would imagine, actually, that that taxpayer lawsuit, that's an interesting question. You know, often in court, in the Supreme Court in particular, the question of who has standing is going to be a big issue.

And so I'm going to have to think more about this, but.

I'll just explain what the obstacle is here. Who is harmed most directly by what's happening? You know, who is the individual that's being harmed by the fact that he's crossing the line using public money for partisan purposes? I mean, I guess you could say that, you know, a Democratic, I would think possibly, I'm thinking it through with you as we speak, but maybe a Democratic candidate who's saying, you know, I'm running for Congress here and this president is campaigning against me.

That's a pretty direct harm. That's not an abstract harm.

In establishment clause cases, when government is promoting religion in a way that it shouldn't, a topic that you and I have often talked about, the court is sometimes allowed taxpayer standing. So you could try that here, but I think it's less likely. So I think here a suit possibly by Democratic members of Congress, you know, groups like Democracy Forward that are bringing these suits often are bringing them on behalf of members of Congress. So maybe we'll look to them to see what happens here. But it is a puzzle. I don't want to hide from it.

I mean, so let me just get this straight before we hit the break. So the taxpayer gets the privilege of funding the ad and then watching the ad and then potentially funding the legal fight over whether the government was allowed to buy the ad, right? This is like the ultimate bundled service. Thank you, Trump. Brilliant.

All right.

And let me say one more thing about this, John, because, you know, I have said this, but I can't say it enough. When we talk about Trump's corruption, so often you hear these stories and we think to ourselves, How can this be?

How can our laws allow for this?

And I mentioned the idea of these ethics czars in the past would have shut this down. And we see now that those norms just don't work. And so it's obvious, regardless of who brings a suit and whether or not this suit I'm suggesting that a Democratic member of Congress might bring goes through, that we need legislation to bar this from happening and to make it clear. And I think we don't have enough of that yet. And part of it has to come with a specific answer to the question of who can stop it, who has standing. And you can do that through legislation. You could grant standing. And I would think that would be an important thing to do here to make it very clear that those harmed by his ad, namely candidates on the other side of the aisle, can bring suits in these circumstances.

Of course, Professor, meanwhile, in reality... Let's say it's 2029 and Attorney General Jack Smith has just been sworn in. This ain't going to make the top 50 things he goes after, is it? This is going to be forgotten.

A long list, John.

This will be forgotten like last year's Emmy winners. All right, let's take a quick break. When we come back, you are already terrified about the SAVE Act, but have you taken time to be terrified about the SAVE voter database? We'll tell you all about it when we return on The Oath in the Office.

Hi, it's Corey.

I'm here with John because we want to urge you to listen to a.

Great new podcast.

I was happy to be a guest recently, and this is one that I think listeners to this show, to The Oath in the Office, will love.

It's got a great name.

It's called Band Camp, as in book bands, and it's about book bands. Each season, what the podcast does is they take a book that's been banned and they read it. The hosts talk about it. It's a mix of funny information. And ultimately, it's really about free speech and why we have a right to read what we want and hear what we want and how dangerous it is to allow books to be banned.

Yeah, it's a really cool show. Jennifer and Dan are really funny. And The cool part about it is that they've never read the books, so they're reading the books out loud, chapter by chapter, and reacting live. So they know the books have been banned. They don't know why yet, and everyone gets to discover it together. And they've done Kill a Mockingbird, Huckleberry Finn, Slaughterhouse-Five, Catcher in the Rye, 1984, Wrinkle in Time, Handmaid's Tale, and hopefully someday one of our books, Corey, because that is an aspiration.

If only we can get to that banned list, that'll be a sign that we've made it.

Really is a great show, and I hope you'll check it out.

My hope is that they'll at least ban this ad, and that'll be as close as we can get to being on Bandcamp, the podcast. Welcome back to The Oath in the Office. Hey, Corey, this would be a good time to remind everybody to subscribe already and write those glowing reviews for the podcast.

Absolutely.

No matter where you're listening or watching us, if you're on YouTube or Apple or Spotify or anywhere you get your audio, podcast, push that button that says subscribe, send it to a friend and write us a review.

Absolutely. So let's talk about one last bit of malfeasance here, Professor. The Supreme Court on September 25th temporarily allowed states to resume using the Trump administration's expanded SAVE database. That's what they do to verify voter eligibility while the litigation is still ongoing. Now, this system incorporates all these additional federal records and people are saying, well, yeah, but this means that inaccurate information or outdated information is going to be included. And, you know, it's outdated and that's going to lead to eligible citizens being improperly flagged or removed, maybe because they moved and didn't change it with the voter registration. Three justices descended from the Supreme Court's emergency order. What exactly is the government trying to accomplish with the expanded SAVE database? They just want to throw more people off the rolls, right? That's all this is?

That's right.

It is a continued effort, and it's continuous with what they tried with the post office, trying to convince states that they had to check their list against a list that.

The post office would have and that the post office.

Would essentially refuse to make sure that ballots got to people. And it's continuous, too, with a version of what they were trying in the legislation they were trying to passed, the SAVE Act, which hasn't thankfully passed. And, you know, this is an attempt by the Department of Homeland Security to take a fake issue, which is voter fraud, that people are showing up, you know, non-citizens showing up and voting and blow it up to some list that they claim that they have of people who shouldn't be allowed to vote. And it's a non-issue that they are essentially using to try to cheat.

But I do want to say something that will give people hope.

When people heard us talk about that post office case, they heard the Well, fear in my voice and the fact that I was very worried that the Supreme Court was going to allow the post office essentially to shave off enough votes that it might have made a difference in the election, given the massive number of people that vote by mail.

This isn't of the same order of magnitude.

You know, what the Department of Homeland Security has on their list, they can't force states, for instance, to abide by anything to do with this list. We're within the 60-day period where there are all sorts of protections when it comes to purges of the voter rolls. So, yes, they're trying to enable basically those states that want to engage in suppressing the vote to do so. But it's a last ditch attempt and one that I really don't think is going to make a big difference. There have been some who have criticized people like me for being alarmist, for instance, about the post office case and saying, you know, you're worrying too much. And, you know, I absolutely reject that. I think that democracy is on the line. They were trying to cheat. But here I will say we don't need to be alarmist. This is a continued, but last ditch. And I would actually say desperate attempt to essentially cheat in this election.

And it's not going to work.

OK, well, I don't have to be alarmed, but I am allowed to be enraged, right? Because let's get a few things out of the way. There is no problem with voter impersonation in this country. Now, these voter I.D. laws, here's why the Democrats are walking around in clown shoes all the time. They don't know how to talk about this, professor. They say voter I.D. And that we know is to make it harder for some people to exercise their rights, not just black folks, low income people, seniors, certainly college students, especially the ones who go to school in cities. They're not likely to have driver's licenses. So it's going to be easier to make it harder for them to vote. This is they just shave off votes of women who've changed their name to say that they do all over the place. And there is no problem with voter impersonation. No election in this country has ever been swayed. by voter impersonation. So yes, obviously there's a legitimate interest in ensuring that only eligible citizens vote. To this day, Donald Trump maintains that 3 million undocumented immigrants voted for Hillary Clinton in 2016. And that's the only reason why she won the popular vote. and adults in his orbit act like this is fine. Here's the funny thing about undocumented immigrants, Corey. You know what they do? They love to go vote illegally, even though they can't register. They like to show up at the polling places to vote illegally because undocumented immigrants, here's their big goal. They want to get caught. So they show up to vote illegally. Now, when I phrase it this way, you see how this is all ridiculous and they're using undocumented immigrants as a way To strip rights away from Americans or at least make it harder for some folks to vote. So shouldn't the government have to prove? Shouldn't the burden be on the government to prove that a voter is ineligible before removing that voter rather than just requiring the voter prove they're eligible? I mean, they're just throwing people off the list and then the voters got to prove it. What is that? The government should have to prove they have a right to throw them off the list first, right?

I just think, John, you know, the way just to reiterate some of what you said, the whole premise here is that there are a lot of people committing this specific form of voter fraud that when the Heritage Foundation looked into it, they could find like, you know, in the low hundreds of people who had voted illegally in the way they're claiming. And these insane inflated numbers that it's somehow in the thousands or even the millionths It's completely false. So you know from the get-go that whatever solution, quote-unquote solution, to this non-problem that they're trying to come up with is itself illegitimate. And that's exactly what's going on here. They're trying to solve a non-problem with a solution that really is about suppressing the vote. You said another thing that I don't want people to miss, and we have so many great former episodes. And one that I, if you missed it and you're listening to this, that I would just urge you to go listen to, is a discussion with Stacey Abrams, the great protector of voting rights.

Former leader in the Georgia Statehouse.

And she just made the point so clearly that everyone requires some form of voter ID. What this move towards voter ID that was in the SAVE Act, again, which didn't pass, what it tried to do was to choose IDs that Democratic voters didn't have deliberately. And that's what's going on here. And again, this isn't enough to make a difference. And it isn't going to be imposed, a list that's going to be imposed on any state.

Or any voter.

It might be one that I worry that Republican red state election officials might try to glom onto and to use it for a purge of their voter rolls. And, you know, I think litigation groups are ready for that because there's a lot of suspicion of this late in the game of any purge of voter rolls.

So, you know, it's serious.

We should be outraged, absolutely, as you said, but I feel like this one isn't at the same order of magnitude of the post office, you know, threats to democracy come in degrees. And that post office threat, the threat of the SAVE Act, they were truly could make a difference in this midterm election. And this thing is serious, but not of the same order of magnitude.

Well, this is going to be the last election Donald Trump's ever going to care about, right? Which is why he was trying to strong arm John Thune into passing the SAVE Act. But the rest of the Republicans in the Senate are going to have elections beyond this next one. And that is why they shut that down. They can disobey him when it comes to their own damn jobs, can't they? Corey, while I still have you, last week we were beholding with awe and wonder Fox News telling the White House, you leave CNN alone. And the weirdest unity rally of corporate media seems to have worked. As you know, a federal judge ordered the White House to temporarily restore access for CNN, MSNOW and those filthy leftists at Politico. after Trump tried to bar them. Now, this is hilarious for many reasons. He doesn't have a press secretary, and Susie Wiles was away, so it looks like Baby got to run around the house. The judge concluded the outlets were unlikely to succeed on their due process claim. So you know, now that it's passed, how does it look? The administration was saying, well, they can just report from outside the White House. That's not necessarily a sufficient answer under the First Amendment, right? I mean, when they said it's a privilege, not a right. Well, yeah, but you already gave them the credentials. This is about you taking them away. Isn't that the factor here?

Absolutely.

You know, it is true to say, you know, not everybody has a right to enter the White House and they have security concerns. We talked last week about a case involving the Nation magazine in which the court did lay that out. A court, I should say, a court of appeals laid out the idea that, you know, if government had a legitimate security concern for barring an individual reporter, then they might be allowed to do it. But what they also made clear and what's clear now, thankfully, and I was predicting this would happen and it has happened, is that the courts have said you can't target a viewpoint. You can't say I don't like your outlet's opinion or the opinion of its viewers or readers.

And say you can't come in here. And remember what they did here.

The previous cases, like involving Jim Acosta, for instance, or involving this Nation magazine reporter, We're about.

Individuals being barred. These are whole outlets. It's saying CNN can't come in.

And clearly what's going on, and we know this because the president said it, he robbed the administration lawyers of the ability to say, oh, this is just about security.

I don't think so.

He told us it's because he doesn't like them using that famous phrase, fake news, which means I don't like what you're reporting about me. So I think that's, you know, it's right. This is, you know, something that might continue. I'll tell you why I don't think it's going to continue, because the president realized that the way that news works in the coverage of the White House is that there's a pool and all of these different organizations share filming, for instance, of the president recording what he's saying. And when one day, all of a sudden he's, you know, there was supposed to be reporting, there was an event about this helipad that he's built.

There was no sound. That's because the pool wasn't functional.

So it might well be that on the one hand, he's learning the constitutional lesson that you can't just shut down the press that you don't like, or at least his staff is learning that lesson. And Susie Wiles is probably telling him that. But there also is the embarrassment factor of like, you know, this guy loves to speak and to be heard. And all of a sudden he was speaking without being heard.

Well, and by now he's probably, you know, forgotten that ever happened, but I want to get off this. But one last thing you mentioned how he accused it of being fake news. And that was the reason besides the fact that they never cited any lie CNN ever aired without a retraction, they just said fake news.

And okay.

If the white house says a reporter or a news organization is spreading false information, does that even give the government a legitimate basis to exclude them? I mean, if they were, because asking for Democratic presidents when Fox News is in the room, you know, Fox News of the Obama wasn't born here will be greeted as liberators. There are WMDs. The 2020 election was rigged. Like we have news organizations that have demonstrably proven to tell lies. If it's true, can the White House just ban them from coming in?

Well, I'll say what you can't do. And then we could think of some examples that would be hard cases. I should say, if Obama did try to ban Fox News, we wouldn't have ever heard the end of how he was an abuser of free speech. And so I guess what I would say is when this president says fake news, we know what he's claiming is fake or criticisms, opinions, information about his wrongdoing, even when it's true. So he's using that term in a way that, you know, is really about opinion. And that you cannot do under the First Amendment. You can't be very clear about it. You can't create a public forum where you invite people in of different political viewpoints, different opinions. and then pick and choose who you allow in. So if in your example, Obama was to say, I'm going to ban Fox News because I don't like what they're saying about me.

I don't like their opinions.

I don't like the fact that they think that the tan suit is inappropriate.

No way. That's a First Amendment violation.

Your harder example, which we can think more about, and I'll acknowledge it as harder, is imagine there really is an organization that is like 100% propagandist that isn't actually doing journalism and is saying documented false things.

Again and again, that might be a.

Different question because one of the credentials that you have to present in order to get into this White House briefing room is that you are in fact a journalist.

Right, like My Pillow News by Mike Lindell.

Yeah, and so I think banning Mike Lindell, for instance, is a good example of something that would be allowable because the criteria of whether or not you are actually a journalist trying to report facts or a propagandist might matter here.

If a Democrat ever did ban Mike Lindell and MyPillow News from the White House, I think it would be giving MAGA the most precious gift they can receive, which is white victimhood. Oh, there's nothing they like more than telling us about their victimhood. Professor Brett Schneider, we have covered immigration enforcement and voter databases and government-funded political messaging and this White House press ban. Is there a constitutional principle that can connect all of these disputes?

Absolutely.

Each one of these problems that we've talked about and cases going into it is complicated.

It requires a nuanced set of facts. There are hypotheticals, but there.

Is also a danger, I think, in keeping them isolated because as complicated as they are individually, together they stand for a simple proposition that which is that this is a president that doesn't believe there are any constraints on the White House or the president himself in the absolute power, prerogative power, essentially, that he's claiming to deport people, not to their home countries, but to third countries that they don't even know about. What better illustration is there of a total disregard of the constitutional right of due process and the banning of news organizations that he doesn't like and assault on free speech? And, you know, what's going on here when you add it all up is an attempt at dictatorship, an attempt to take the presidency and turn it into something more akin to, well, what some of these countries that are abusing human rights, some of these third countries that these individuals are being sent to in which you have no ability to speak back. And that's true, too, of the propagandist attempt to take taxpayer money and to use it to do campaign ads. All of these have a common theme, which is the drive towards dictatorship.

Five weeks, sir. Five weeks it is. Professor Bretschneider, thank you again for a terrific episode. Where can our listeners follow you the other six days of the week and keep up with your constitutional brilliance?

Well, the Oath in the Office podcast has become my passion, John. It's a pleasure to do it with you every week. You can find us on Substack, where there's an Oath in the Office Substack. There'll be links to these stories. You could go even deeper. Essays about some of the examples that we're talking about, legal analysis.

YouTube, if you want to watch.

Us, not just listen to us. I'm hearing from a lot of listeners that they also watch us. You can also subscribe anywhere you get your audio podcasts. And John, I've got to say, before turning it back to you, congratulations on the American Book Award, which you received out in California for your brilliant book, Separation of Church and Hate. being recognized. We heard last week Mickey Dolan's talking about it, and I know it's playing a role in American conversations everywhere, and what a well-deserved honor.

So congrats on that.

Thank you, Professor. The follow-up book is coming out this Easter, and I'm turning in the final draft of it right now, and I haven't slept or bathed in months, so it's very nice to hear that. Thank you so very much. I want to tell all the nice folks, you can hear me on SiriusXM, Progress Channel 127, five days a week, or on the John Fuglesang podcast. And hey, let's thank Wendy and Beowulf and all the great people who put the show together every week. Corey, am I forgetting anybody or any announcements? We good?

We're good.

All right.

Tune in next week.

Tune in next week. I'm John Fuglesang with Corey Bretschneider reminding you, please. Teach your kids, don't deport vulnerable people to undisclosed locations where they could be tortured without giving them a chance to object. Please. It starts in the home. We'll see you next time on The Oath in the Office.