Impeach? Defund? Legislate? What Should the New Congress Do About Trump?

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Welcome to another episode of The Oath and the Office, the Democrats having both chambers of Congress edition. I'm John Fuglesang. I hope you're doing well. Pete Hegseth's doing well. He is so not worried that he suddenly scheduled his first press conference in six months at 8 a.m., one day after a Republican congressman introduced eight articles of impeachment. Just having a press conference about how not worried he is. For more, let's go to the star of the show and the brains of the operation, the author of The Oath and the Office, the one and only Professor Corey Bretschneider. Hello, sir. Good to see you.

Great to see you, John. And I think we've just got to start with some celebrating because we recorded our last episode on Election Day. We didn't yet know the results. We were hopeful. But wow, the news that we now have, you know, for a podcast where we've been talking about the need for Congress to check this president, the need for a blue wave. And of course, we got a blue tsunami yesterday. It's just a moment, I think, to really take a breath and be thankful that American democracy is on the mend. We're not out of the woods yet, but we're starting to have real talks about checking this series of abuse of power. And we'll talk today about the various ways, oversight, impeachment, legislation, ultimately, that we could have to check this, not just abuse of power by this president, but by any future president. So it really is a time to cautiously celebrate this amazing victory and to see democracy. The American people care about the issues that we're talking about. It wasn't just about inflation that was part of it. It was about abuse of power and, of course, corruption. And we'll get into that as well. Well, yeah.

And I mean, obviously, it's an amazing moment because Democrats came together and had incredible unity to have this blue tsunami. And that means that now they can go back to stepping on rakes and fighting each other all the time being Democrats. So, I mean, I think the real important discussion is like, what can Democrats legally do? What can they realistically accomplish? And I guess, Professor, I want to talk about what they should do if the objective is to preserve democracy rather than just win the next election. You know, obviously, Hakeem Jeffrey showed up with a whole wish list of the things they're going to attack in their first 100 hours come January 1st. And, you know, number one seems to be the war with Iran. That is how you address gas prices, which is how you address a lot of this inflation. So What constitutional authority does the Congress have to force an end to a war that a president initiated with no declaration of war?

Well, it is such an important place to start because the Constitution, first of all, couldn't be clearer that in Article 1 it says that the Congress, not the president, has the ability and sole ability and sole power to initiate or, as the Constitution says, to declare war. And Article 2 says it's the president as commander in chief who carries it out. Now, in this instance, the Iran war, it was started entirely by a president who didn't even have the decency to try to fake it. Now, there are exceptions. Defensive war, for instance, if the country is attacked or if there's an imminent possibility of attack. And, you know, that's a complicated issue. But these are all possible exceptions. And there was no exception here. It was just the president essentially declaring war.

You're exactly right. I'm sorry, Professor Verstepping, but let me ask you, when was the last time America legally declared war by the Constitution? Do you know it offhand?

Well, in terms of a formal declaration of war, you'd have to go back to World War II.

85 years ago this year was the last time this country, which has been at war nonstop my whole life. We haven't done it legally since 1941.

Well, I mean, John... Not to severely disagree, but I guess what I would say is that in instances in which there's at least an authorization of war, there's nothing that necessarily says that the words declare war have to be used. Fair enough. And we did have that in prior instances in Iraq. Even there's a controversy over the facts of the Gulf of Tompkins resolution, but there was a resolution at least. No, you're right, you're right. In this case, there was just no even attempt to pretend that Congress was even being consulted. So that's number one. But of course, you're going to ask me, well, where's the enforcement power when it comes to the Congress's ability to declare war? Congress tried to reclaim that power at the end of the Nixon administration over the objections of Nixon himself. He vetoed the War Powers Act. And yet that is supposed to be the governing statute. And as we get into what Trump did wrong on any interpretation of the war powers, he has just obliterated the role of Congress. And so what can Congress do to fight back? One other thing that might be on the table is the refusal to fund this war. Now, if Congress had already acted through a bill, for instance, to fund the war, then that would be something that would be subject to a presidential veto, withdraw of the funds. But as I see it, the fact that there is no allocation in the first place of a war and there was no authorization of the war, Congress has the unilateral ability at least to try to withhold the funds. So here's the point, John, that when we talk about the war powers, the funding might be one issue, but to get to brass tacks, the other thing that is on the table immediately, even before this next Congress takes place, isn't just oversight, but one of the most powerful oversight abilities, and that's the ability to remove not just a president, but cabinet officials. And so we're talking, of course, about the impeachment of Pete Hegseth.

Oh, say it slower. Say it slower, please. Drag it out, please.

The impeachment of Pete.

Oh, so wrong, but it feels so right. Yes. Well, I want to talk about that. But first, I want to ask you a few questions about the Congress that will be holding the purse strings, because you're right. There's a lot they can do. I mean, from prohibiting additional appropriations for this, to restrict the use of previously appropriated funds, to making the funding conditional on authorization. We could go on, but The House passed a war powers resolution directing this president to remove American forces from hostilities with Iran, and it passed 220 to 204 way, way back in history on September 15th, just two months ago. Did that vote actually accomplish anything? What would Congress have to do to make that binding?

Well, one of the problems with this battle, and it now is increasingly going to look like a battle between Congress and the president over the power to initiate essentially declare war, is it's as plain as day that it's Congress that has this power. And to me, it's as plain as day that this president and this secretary of defense, I'm going to call him secretary of defense because although he calls himself secretary of war, the statute creating that department doesn't use that phrase. So, you know, that itself is a constitutional issue. How do you enforce it? And courts have always had this idea in the war powers area of what's known as a political question doctrine. And what that essentially means is that they're refusing to enforce the Constitution, or in the case of the War Powers Resolution, meant to clarify the Constitution to enforce the law. And so we've got to think of other constitutional mechanisms to try to hold this Secretary of Defense, this president, to account. And money is one area, and it gets thorny if the money has been allocated already. But if the money has not been allocated, absolutely, Congress can withhold it. And the other thing that we're talking about, this isn't hypothetical anymore, we've talked a lot about the possibility of impeaching cabinet officers, but it is now on the table, of course, Representative Massey putting forward articles of impeachment, these are being taken extremely seriously, and it is a way of chastising this administration away with teeth, because the consequence here, if there would be a majority of the House of Representatives and two-thirds of the Senate, would be that this Secretary of Defense, Pete Hegseth, would actually be removed. This isn't an abstract idea. It's one with real force.

It really is. And it was amazing watching Pete Hegseth's press conference at eight o'clock in the morning. He hastily ran to show how not nervous he is. He blamed the commander in chief and then he praised the commander in chief. And he essentially told Congress the president was responsible for everything. essentially, he threw Trump under the bus and then got under the bus with Trump to ask for a ride home, I think. I don't really understand. It was pretty much his whole defense was, I didn't do it, and if I did, the president told me to. Corey, there's a lot of confusion about what Democrats can and cannot do, but the House can impeach cabinet secretaries and other senior executive officials besides the president, correct?

Absolutely. Cabinet officers, just like the president, are subject to the possibility of impeachment. And the Constitution lays out a standard for how we're supposed to think about that. And it's the same standard that we think about when it comes to the president himself. And that's whether or not Pete Hegseth or any cabinet secretary that's impeached has committed high crimes and misdemeanors. And just as a refresher course here, high crimes and misdemeanors doesn't mean that Hegseth has to have committed assault or murder. It's not a crime crime. It's about abuse of power. abuse of the Constitution. And one of the central mechanisms that the Constitution gives the American people to enforce it against a president who would disregard it is Congress. And in fact, I think the framers and the 19th century framers as well throughout history thought of Congress as the place where the Constitution was. would be enforced. And certainly this power, underused in my view, is one of the main areas where it can be used. I'll say something that's weird about this, just in relation to your point that you raised. Impeachment comes from the British system. Even though there was a British king, there was an ability to impeach the king's officers, high-level officials. And there was a sort of fiction, which was the king can do no wrong, but his officers can do wrong, the people holding these major offices, the equivalent of our cabinet. And the British system allowed Parliament to engage in these impeachments. Now, what's going on with Hegseth is, you know, recognizing a weird dynamic here. I think as much as I'm going to defend the impeachment of Hegseth and think he should absolutely be impeached and removed by the Senate, he's got a point, which is so much of what he's being impeached for, including carrying out this illegal war, was, of course, at the behest of the president. So it is a bit of a fiction, at least with some of these articles of impeachment, to say it's Hegseth, not the president. Of course, it's both. And to my mind, the way to understand what's going on and defend it is we're going to get a lot of information. We know what Hegseth did. We don't know, for instance, the details of whether or not the president ordered that infamous double tap on these drug boats. That's one of the articles of impeachment that's relevant here, and certainly one that has to be front and center, holding him to account for this war crime essentially going after with no evidence what might have been migrants, might have been fishermen for all we know, and attacking them when they were imperiled, a war crime. So a short kind of way of summing up, Hegseth, to my mind, absolutely deserves this impeachment, but in many ways, he's right to say it also implicates the president of the United States. Deeply.

I mean, this guy wanted to be the warrior secretary of defense professor. Instead, He's playing a guy who's just saying, I was only following orders. I think Mark Kelly should call him and say, you're allowed to refuse an illegal order, Pete, but I don't think Pete would appreciate that this year. The timing's insane on this, Professor, isn't it? Republicans have just had this devastating midterm loss. Democrats are about to take control of Congress. I know this electoral result, no doubt, has changed the political calculations regarding Hegseth, and so has the timetable of Thomas Massey, Republican of Kentucky, leaving Congress at the end of next month. I mean— How significant is it, Corey, that it's a Republican congressman leading this charge? They can't claim this is the radical left, can they? This is a bipartisan effort, which tells me Hegseth has begun to lose the protection he once enjoyed from his own party.

Yes, and I watched today that even Ted Cruz, the senator from Texas, is suggesting, at least the remarks I heard him make, suggest that he was pretty open to this idea of impeachment. And if you, like Massey, are somebody who at least claims to care about the Constitution. And you watch this, you know, as I said, this isn't a partisan idea that it's Congress that declares war. It says it plain as day in Article 1. It calls out for the idea of impeachment. I should say, too, impeachment, at least the way it's set up, is meant to be apolitical. In fact, the Senate takes a new oath if we get to that phase where they convert themselves into a trial, kind of trial body, and they're supposed to basically renounce their political identity and play this impartial role Now, we didn't really see that happening as much as we should have, certainly in the first Trump impeachment. We saw it a little more in the second. But here we really might see it. We might see a recognition that this Secretary of Defense is, you know, just as much as Trump might have ordered it, he has gung-ho devoted himself to destroying the Constitution. And I don't want to miss either the article of impeachment that you alluded to, just to pull it out, really an attack on the free speech of a United States Senator, Mark Kelly, who and threatening him with all sorts of disciplinary procedures for his political views within the military as he retained some status in the military. And that, to my mind, is not just an attack on free speech, of course, but an attack on another body. And so Hegseth shouldn't be surprised that he tries to attack a senator, a member of a different branch that's charged with actually oversight over his Department, the Department of Defense. And, you know, what's going to happen? They're going to use the mechanism that they have to fight back, that of impeachment. Yeah.

Well, I got to say, this impeachment to me is like porn. And the best part about porn, I read it for the articles. And this thing, eight beautiful articles, a really unfortunate performance review for Hegseth. But here they are. I'll go through them really quick. The initiation of the Iran war without any authorization from Congress, continuing that war after Congress said, knock it off. violating war powers, weakening civilian protection safeguards, the murders of people in the Caribbean boat strikes, the retaliation against Senator Kelly and the other Democrats when they made a video saying troops don't have to follow illegal orders, the Venezuela operation involving Maduro and how we sent our troops to essentially steal their resources, and the Yemen military campaign, which, boy, howdy, Corey, if Americans could begin to learn about that, I'd consider it a civics class. I mean, are we looking at a the Constitution's limits on presidential war-making as optional? Because I'm thrilled that they're talking about Yemen and Venezuela, because neither of those had congressional approval either.

I think that we were headed in a direction, you know, I don't want to say that it's new, of course, and I think this is different in that there's not even a pretense of pretending to consult Congress, but we have had a horrible trend of presidents essentially ignoring the congressional mandate to initiate war. And if the Republicans would have won this election and Trump would have declared it a victory for himself, we might have had a really dangerous move in the direction of even more disregard of Congress. But what we're seeing here is despite the difficulty, you know, we started off with this hard instance, which is Congress has already said no. If it says no again, how can it actually enforce the no? Well, impeachment is a real way of doing it. So, you know, you're going to hear me with a lot of optimism on this podcast now that There's a serious Democratic majority, a serious ability to check this president, and this is one hopeful step forward for sure.

Yeah, I mean, the articles themselves are very thorough, as I mentioned, including the strike on the elementary school in Iran that killed at least 156 civilians, including at least 120 little girls. They're really trying to cover the accountability question here, aren't they?

Look, you know, the unfortunate history, I just watched the Netflix documentary about the history a Vietnam turning point, which I highly recommend. But what you really see is the series of war crimes, most famously My Lai, but there are others as well. And what's the check on a president who would allow, at minimum, ignore, even order, depending on what the research shows when it comes to Nixon and Johnson and some of these instances, what essentially are war crimes? What's the check? There's no court ability of a parent in Iran to bring a case that's going to work against an American president. The check isn't the courts, it's Congress. So when it comes to the human rights abuse as well, one of the articles says a complete violation of Venezuela's sovereignty, even if you think that Maduro wasn't a good leader, the idea that we just went in with no authorization by Congress and did that, all these violations of international law are really only enforceable in one way, and that's if Congress steps up. And that seemed like an abstract possibility a couple of weeks ago, and now it's actually happening. And, you know, here's another point, John, one more point. We're talking about it. We're talking about each of these violations of international and domestic law, and that's a result of the impeachment articles.

Well, I mean, Hexeth is dismissing the impeachment as a political farce, and his whole thing is every operation was lawful. The president told me to do it, and every operation was lawful. This is funny for many reasons, but does that defense actually address the substance, Professor, of these eight charges?

First of all, I'm not sure that that's true in each of them. For instance, that famous attack on the drug boats, you know, that seemed like it was his call. And we'll find out more about this when he ordered the boats that were already in peril to be attacked a second time, killing people. But, you know, he might be right that the president ordered these things. And I've been reading the articles of impeachment carefully. And they are very careful to both implicate the president, but also independently the Secretary of Defense. And what they say is that even if there was an illegal order, he carried it out. And carrying out illegal orders is itself impeachable. I love that way of doing it. It doesn't let Trump off the hook. But I'm just filing orders, as you alluded to before, isn't a defense of A dereliction of your podcast is called The Oath in the Office. Yeah, yeah. All officers take an oath to uphold the law, the Constitution, and he's disregarded it.

But isn't that a hilarious bit of hypocrisy? Maybe Mark Kelly was making that video just for Pete and we didn't realize it because Hegseth keeps saying, no, service members must reject unlawful orders. His entire defense professor seems to be he was just following orders. I mean, I know he's a homophobe, but these guys tend to like it both ways, if you know what I mean.

What a great point, John, about the video that Senator Mark Kelly made.

Maybe they were trying to help Hegseth the whole time.

I mean, it is sort of a delicious moment in American history. politics because what the video that he was sanctioned for, just to remind people, what the video said was, do not follow illegal orders. So if you're ordered to commit a war crime, don't do it. That's not controversial. And yet what Hegseth tried to claim was that somehow this was encouraging disloyalty and sort of illegal refusal to follow lawful orders. He conflated those two things. And yet here he is being impeached for what? For following illegal orders. The very thing that Kelly was trying to tell him about.

I love that point. But I mean, you know, there'll be some folks listening to this, Corey, who will say, OK, but you know what? You can impeach him in the House. You're never going to get 67 votes to convict this guy. As awful as Pete Hegseth is, you'll never get 67 votes to So does impeachment even serve a useful purpose? I mean, Corey, even if that's true, doesn't it serve a purpose to establish an official record of misconduct, to expose evidence, to create some political accountability for, I don't know, future attorneys general down the road?

You know, it does a few things. There is, I should say, apart from impeachment, a broad oversight power of Congress that's been recognized since at least the early 20th century that if Congress says that it's considering legislation or legislative purpose, it can look into all sorts of abuses with the idea being, well, we're going to try to correct this through new laws. But impeachment, to my mind, just to go to your question, is a much broader kind of inquiry because you don't have to say we're looking for some kind of legislation. No, we're looking at the abuse of power, the wrongdoing. That's what the mandate of an impeachment inquiry is. So I think this serves the idea of oversight, which tends to scare people in these departments into obeying the law. I think there are a lot of people in the Department of Defense who are recognizing that they might have done things that are illegal and going forward will think twice about it in the future.

Oops, I tripped and darned if I didn't commit war crimes.

I mean, that's not a small feature of what Congress's role is. But To go to your main point, too, I'm not sure if there are the votes there in the Senate because these things build. You know, Watergate, there weren't the votes for impeachment of Nixon at the beginning of Watergate at all. He won in a landslide. But as the evidence mounted, as the pressure mounted, as the votes were clearly there in the House, the Senate started to, people like Barry Goldwater, the Republican senator, started to calculate the votes. And you know what? There weren't the votes until there were. And when there were, Goldwater led a delegation that went to the Nixon White House and said, you better resign because there are the votes there to not just impeach you in the House, but the two thirds to remove you in the Senate.

I mean, this is why I call them henchmen, flunkies and fall guys, professor, because they were hired to be fired. They were hired to take the blame. Kristi Noem was fired because she enacted the policies Donald Trump told her to. Pam Bondi was fired because she did, as Donald Trump told her, Pete Hegseth will be fired or impeached. because he did exactly as he was told. And of course, Donald Trump, well, we can't go after him because presidential immunity. And that's one last thing I want to ask you about before the break, because corruption is high in the minds of people in all the polls we saw. But Sonia Sotomayor was at Mount Vernon this weekend. She said she would really love to see the court overturn the immunity. She talked about how it was crazy. And she specifically identified the immunity decision as one that she hopes will be reversed in her lifetime. How significant was it that she said those things at the home of our first president?

You know, I've been thinking and saying as much as I can that the Republican appointees, the Clarence Thomases, the Sam Alitos, have been so outspoken in defense of their jurisprudence. And we need to see more robust vocalization of these ideas from the liberals on the court. And Sotomayor is certainly doing that. I saw Alito speak before Trump attended the Federalist Society conference. I wouldn't do this anymore. But at the time, you know, it was like, let's debate each other kind of moment in American politics. I think we're past that. Oh, yes.

Those principled conservatives.

Yes. Go on, please. But I'll tell you what was not a bipartisan moment was watching Sam Alito at the dinner speech just give the most partisan rant that I could ever imagine going after Obama for criticizing, daring to criticize the great case Citizens... united. So the Republicans have been doing it, and now it's time for the liberals to do it as well. And I can't think of a more important issue with this new Congress to start to tee up on the agenda, and that's what this does, than the reversal of the immunity case. Now, the Supreme Court could reverse that case itself.

They could.

But we talked to Senator Whitehouse about an idea that I am increasingly favoring, which is legislation by Congress that that would significantly narrow the meaning of where that immunity is. Not necessarily reverse it, but narrow it to almost nothing, the idea of official duty, which is what the immunity provides for. And, you know, that's something that would give the court an out, perhaps, to have legislation backed by Congress so they tend to like to not strike down statutes passed by Congress because it's, after all, millions of people that are involved in the passage of a congressional statute. And instead of reversing it, the legislation could narrow it. Anyway, it's an invitation is what Sotomayor is doing for something like this. And so on this podcast, I don't want to just cover the news and talk about what's happening. I want to promote certain ideas of constraints on executive power. And that's certainly top of my list.

Well, I'm all for that. Yeah, because, I mean, we seem to be in a place where we all know that he's abused presidential power. We don't know if the American constitutional system still has the capacity to to stop a president who abuses congressional power. Let's take a quick break, Professor. And when we come back, I want to tug on your coat a bit about these Democrats before they start fighting each other and walking on rakes for the next two years. I want to talk about what they can do and what the voters actually demand and what they're going to do with this majority. Let's be right back in just a moment on The Oath and The Office.

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Welcome back to The Oath in the Office. I'm John Fugelsang along with Professor Corey Brettschneider. Corey, these voters here, they didn't just elect Democrats. They elected a Congress they expect to challenge Trump and investigate corruption and address the cost of living. Akeem Jeffries seems to have a pretty safe job and will most likely survive any challenges to be the next Speaker of the House. Can he deliver all of that?

Look, I think that people can walk and chew gum at the same time and Congress can fight inflation and fight corruption and try to constrain excessive executive power at the same time. And I think when I understand what the mandate is, it's all of the above, because the things that worked in the election were the recognition that corruption has a cost. If Donald Trump and his cronies are trying to enrich themselves, you know, over two billion dollars, The New York Times estimate of how much Trump is essentially corruptly benefited from the office. They're not looking out for you. They're not looking out for inflation, for the cost of gas or food. And I'd say the same about the Iraq war, which we began with, right? That it's an illegal act that had, of course, a damaging effect, not just on human rights, but on people's everyday spending power. And all of these things are interrelated. And that's why it's the obligation of the Democratic Party to pursue them all, to care about things like health care and restoring, of course, the subsidies of Obamacare. That has to be front and center. But so, too, calling out war crimes and abuses by people like Pete Hegseth. Just a big picture here. And this is, you know, I'm excited not just because it's a Democratic victory, but because it's a historic victory. opportunity. We've had a few moments like this where in the aftermath of executive abuse, a wave of congressional elections resulted in legislation oversight that really did constrain the executive branch. And that started at the end of Nixon's administration. I mentioned the War Powers Act to constrain essentially the illegal activities of the president, war crimes. the bombing too, illegal bombing in Cambodia and Laos, not authorized by the Gulf of Tonkin in any way, that kind of activity was repulsive to the American people and they elected Congress people to push back. And so that War Powers Act was passed over a veto of a president. Trump keeps saying, veto, veto, veto, let him try it and let's have that confrontation. So that comes to legislation, oversight, impeachment, all of the above. That's what's on the agenda.

Well, I mean, the smartest thing Democrats could do would be to put forward a measure to end this war and then let Trump veto it, right? I mean, let him say, no, I want to continue this. Like, let him go on the record as wanting to keep this thing going. Hakeem Jeffries, of course, has been all about affordability and accountability and American values. Those are the three organizing priorities. And He put out this letter the day after Election Day calling for what the Democrats will do in their first hundred days, their first hundred hours, reversing Medicaid cuts, restoring SNAP funding, extending the ACA tax credits, eliminating Trump's tariffs and stopping the Iran war. Which of these priorities should come first, Professor, to you?

Well, I think different committees do different things. I'll say an interesting this is a subtle point about the way war powers work. But the War Powers Act passed at the end of Nixon's administration doesn't actually require a signature or veto from a president. It allows two houses of Congress, it's referred to often as a two-house veto, to simply say no to war. Now, the president and his lawyers are going to say that's unconstitutional, that you can't have laws that just enable Congress to act on its own. But to my mind, read the Constitution. It doesn't give the president any say over war. It's not that the declaration or lack thereof of war goes to the president for approval. So this is a showdown between two branches, but that's one of the areas where I think they can just do it. Oversight also doesn't require the approval, signature, or veto of a president. You can call for testimony with the thought that proposed legislation can be based in current abuses, and that oversight power is so important when it comes to the president's corruption, also has to be on the agenda. Now, things like reversing the cuts to the subsidies in the Affordable Care Act, now we are in the realm of legislation. And that's one of the places where I just think, you're right, let him veto it. Let the American people see it. Maybe we could get the votes for an override and we can get even more bold. We can start to think about things like legislation to reverse the immunity case. An independent prosecutor that wouldn't work for the president Let him veto those things. It at least puts it on the agenda. This is, I keep saying, a historic moment. And it doesn't mean that it all has to be accomplished today. It can be on the agenda and something that we're working on for the next several years.

They got two years to really show results here. And of course, without getting too deep into the weeds, all of these cuts in the big, beautiful budget bill for health care, cuts in Medicaid, cuts in Obamacare subsidies, a lot of folks, low income and disabled, are going to suddenly be without health care after the year. And this administration has already tried to blame that future financial hardship on this election. And they're going to try to blame people losing their health care from a plan a year ago on the Democrats, taking the Congress just last November. But I want to unpack a few things you said, because there's a really important historical precedent for me in thinking about ending this Iran conflict. And that is that in 2007, Congress passed legislation restricting funding for the Iraq war, and they set a timetable for withdrawal. And President George W. Bush vetoed it. And he said that Congress was unconstitutionally interfering in his commander-in-chief authority. Now, I know that they did have, of course, a congressional vote to give Bush the authority to carry out that conflict. But he lied. How relevant is that precedent to this confrontation? Not at all, because this guy didn't get approval in the first place.

Well, I think it's a good question. Certainly, you're going to get the president of the United States claiming. And, you know, there are, to my mind, not well-founded theories about why the president actually can initiate a war. And one of the most famous people defending that idea is John Yoo, famous for his torture myths and the unitary executive theory. Not all of the people who defend it, but some of the most extreme variants are going to feed the president this lie that he didn't do anything wrong. And of course, Congress is pushing back against that. To my mind, credible scholars will push back against it. And that gives you the answer to your question, which is, Yes, it's very different in an instance in which, you know, yes, maybe it was based on false information, but there still was an authorization of the war in Iraq. And that's not true here at all. And so, you know, when Congress, when it says no, there was no yes in the first place. And under any of the theories of the way war is supposed to work, the president is acting illegally. And that goes back to our original story. You know, that's why the teeth of impeachment. What can we do? We're doing it.

You're right. So let me bring it back to health care, because, I mean, could Democrats use the budget and appropriations process, Corey, to reverse these Medicaid cuts and the snap cuts, even if Trump doesn't like it? I mean, could Democrats conceivably pass like an ACA premium tax credit extension and just force Republicans to? to take a public position on it, even if it couldn't succeed.

I think that's the kind of thing that has to happen, that we've got to get a vote on these subsidies. You know, just to kind of pull back a little bit, the Affordable Care Act is associated with Obama. So, of course, Trump hates it. And, you know, he's said publicly he's going to do everything he can to make sure that it doesn't work so that one day he can get his much better health care bill. He's never told us, of course, what that is, and he has no idea what it is. So this is a Republican failure to keep health care as imperfect as it was, even moving in the direction, even serving the number of people that it was. People are losing their health care in large numbers, and the Democratic Party has to take a stand. And the general point, which is true here, but I think is true of other forms of legislation to ensure basically economic survival and decency, dignity for the vast number of Americans, Democrats have to force these votes. And even if it requires signature and some of these issues that we'll talk about of the president, let him veto it. He's got this sign that says veto. He's excited to veto a lot of bills. Let him do it. It at least shows where the fault lines are.

Can the Democrats legislate to roll back tariffs or would Trump just block such legislation?

Well, the tariff case is really interesting because, of course, I worked with our friends at Democracy Forward. We've had Sky Perryman on the show, I worked with her team on a brief arguing that the tariffs that Trump imposed, the vast, large, large number of them, were imposed in this arbitrary fashion without the authorization of Congress. And actually, Trump wrongly tried to pretend that a law passed in the aftermath of Nixon, the International Economic Emergencies Act, IEPA, that it authorized him to enact these tariffs. And the Supreme Court rightly, and this is exactly what we said in the brief, said, I don't think so. That law was about constraining presidential power, not authorizing it. So a lot of the tariffs have been essentially struck down. Legislation could reinforce the court decision, and it could also do more. It could recognize that there's been too much power handed over, including on other bills that probably do hand over some tariff-making ability. and to try to withdraw it. But what that does, I think, and what I'd recommend is not limiting to tariffs, to start to look at all the delegations that Congress has basically handed over its own powers to a president and starting to rethink, hey, we should pull some of this stuff back. And tariffs are definitely one of those areas.

Well, yeah. America sent Trump a message, I think, in these midterms. And Trump took that message and translated it as, make it all worse. Most presidents would respond to a historical electoral defeat by changing direction, right? Bill Clinton brought in a Republican, David Gergen, to help him. And for better or worse, it saved his presidency. Trump has decided that America needs a second helping of what it just rejected. And that would be a chief of staff named Stephen Miller. Yes, Stephen Miller, the man, the myth, the gerbil gerbils, I call him. Corey, replacing Susie Wiles, and I won the office pool. I said Susie Wiles would go before Pete Exeth, that he will blame her. for enacting his policies before he blames Hegseth. But Stephen Miller, the architect of all of this cruelty, what message does that send to you?

Well, you know, it's doubling down on the attack on the Constitution. The role of the chief of staff, I think, in the past administrations, to at least some degree, is to say, don't do that. Now, when it came to Susie Wiles, did she do a great job of that? You know, not quite. No. She said on the revenge, you know, against his political opponents, some of the reporting suggested that she said, well, you could do that for a few weeks. And, you know, so it's not that she was some great chief of staff, but the reporting also suggests that she and others did at least at times try to rein him in. This is actually choosing the person who is the most aggressive when it comes to the fascistic, fascist tendencies of this president, who leans into it, who wanted the cruelty. I mean, to my mind, the descriptions of people who say that Stephen Miller is a sadist is reinforced. I don't know Stephen Miller, but when I watch what he says, when I listen to what he says, when I see the policies that he directs, including the oversight that he had over Homeland Security, It's leaning into the cruelty. And so when you have a wave of the American people saying no to the cruelty, and certainly at minimum, as much as it was about the economic failures, this was a response to the crime and the cruelty of this administration. And then you appoint Stephen Miller, it shows you know, not tone deafness, something just complete misunderstanding of the American people, the American Constitution, and essentially an FU to all of us.

That's exactly what it is.

Yes.

I mean, all these liberals were so angry, Corey, like, doesn't Trump understand the midterm results? I'm like, yeah, he understands them perfectly. And he's decided to punish America for delivering them. He read the room. He knows what people think. And let's think about his track record with chiefs of staff. In the first term, he had four. Reince Priebus, remember that? By the way, every man over 50 should get your Reince Priebus checked at least once a year. Then John Kelly, then Mick Mulvaney, then Mark Meadows, now Susie Wiles, then Stephen Miller. This guy's had six chiefs of staff in six years in the White House. I mean, why would Trump elevate him at exactly the moment voters are rejecting the agenda? I think it's a declaration of his strategy and that he wants more of the same and that it's going to be a lot of hate. And eventually, you know this, I don't see Stephen Miller lasting two years in this job, do you? He'll take the blame and he will be fired for implementing something Trump told him to do, just like the rest of them.

I think, you know, I'm with you that this administration is has seen just chaos. It's seen attacks on vulnerable people. And we had a pushback against this administration, historic as a result of it. And, you know, he sees the failures and he just leans into them. And that's what Stephen Miller is, leaning into the failure.

Do you see this as being a signal that they're going to double down on the deportations and the ICE operations despite all of this backlash?

That's a great question. I guess the way I see it is right now, the president doesn't look, he's never understood how constitutional government works. I'll just remind people, I've spoken about this, but in 2000, when he was really early on in his presidency, he said, I have an Article 2. It says I can do anything I want. And he's referring, of course, to Article 2 of the Constitution, where the oath is that constrains a president by the Constitution. That's the literal thing that it does. And he's never understood this idea. He knows that there are members of Congress that he likes or doesn't like. Does he understand what that body is supposed to do? I don't think so. Still, way into the job in his second term. So now with this impeachment, With the threat that he's going to start losing cabinet officials, with the fear that will come within his administration from seeing that there's going to be real oversight, I think he's going to second guess that. So I would say, yes, it is complete defiance. It is doubling down on this authoritarian dictatorial idea, as we've talked about it, attempted self-coup. But now there's real power to push back against it. Congress was giving up its own power for so long, and now it's pushing back. So that's his intent. And whether he's going to get away with it, I don't think so.

Oh, the best thing about the Democrats taking control of the legislative branch is that we have a legislative branch again. They can do stuff now. And this to me is a sign that Trump is just this is going to end like the last thing in a scar face. We know what he's going to try to more and more govern through a smaller circle of ideological loyalists. If he was smart, he'd bring in some lefty who would help him coach him to pass single payer and make him, you know, And he's not smart enough to do that. So there's another weird dimension here I want to ask you about when we come back, because while Trump is doubling down by elevating Nosferatu, his vice president, America's least charismatic eyeliner model, he's moving in a somewhat different direction, publicly questioning the very war that may have helped cost Republicans control of Congress. I don't think it's going to work when we come back. More on that on The Oath and The Office. Welcome back to The Oath in the Office. I'm John Fuglesang. Corey, the comedy keeps on coming. J.D. Vance, who is kind of like every side effect of Ambien happening all at once. He's blaming the Iran war for the Republican electoral disaster. He's partially right. I mean, but it's not so much a policy agreement as a weaselly attempt to distance himself from a failed presidency while beginning a 2028 campaign. And again, all these homophobes love to have it both ways. I mean, he's like, the reason we lost is the war. He said it. That's an extraordinary statement coming from a sitting vice president. And he suggested that Republicans should debate whether the war was worth losing control of the Senate for six years. What does that tell you about the seriousness of the disagreement inside this administration?

Well, you know, this is just a craven politician and he'll say whatever he needs to say. You know, the next thing he's going to do is remind us that he compared Trump to Hitler. And yet, you know, he seems to conveniently forget that he's part of it. So, you know, he's trying to tell us that there was some real internal battle within the administration and how much he stood up. for the basic idea that there's no constitutional power to do this.

Oh, he sure did. Eight months later, he stood right up for it, didn't he? Eight months later.

I'm skeptical to say the least, but what I'm not skeptical of is that he'll claim whatever he needs to in order to try to save his career. But I think at this point, it's just so obvious who this is. Somebody who just doesn't have any beliefs. and who went into politics really to serve himself. And, you know, it makes him a good target, I think, for, we've been watching Abdul calling him Habibi. I just saw they launched Habibi PAC, you know, to just, to really, you know, see the weak link in this administration, which is somebody who has no beliefs, who will just you know, move to whatever position serves him and who only really seems to care about himself. And that kind of person is somebody who's not attractive to the American people. And so he is serving a purpose, a purpose of a good target for jokes.

I mean, he doesn't get to say he has a credible claim of being the voice of the voters who rejected the war. He just showed up. You three Star Wars movies and halfway through Return of the Jedi, they're like, hey, Darth Vader seems like a villain. You know, it's like they just have to play dumb all the time. Here's my question that I'd really like answered, Corey. You think Vance would actually vote to end this war? You know, we're talking a lot about how this new Congress is going to put stuff up for a vote, including the progressives getting moderate Democrats to take a stance on things. But if Democrats introduced a resolution or legislation requiring this administration to end this war, You think J.D. Vance would support that for a second?

Well, it's really an interesting point because I'll just lay this out for people because the vice president has a special role in the Senate, which is as president of the Senate. And, you know, going back in history, Jefferson, for instance, often actually did preside. The president of the Senate is the vice president. And the vice president in modern times doesn't actually attend usually except in tied votes, for instance. But if he really wanted to take a stand, we could go back to the time in which we didn't have allies as vice president. If you look at John Adams, his chief opponent, based on the way elections were done, was his chief rival, Thomas Jefferson. And you had the vice president acting as a critic. Could you imagine if J.D. Vance started to take that level of aggressiveness on constitutional issues?

No.

I sure can't.

Because what he's doing is he's criticizing the war. The war is the bad thing. So he's creating this dynamic. where he thinks one third of white folks will be dumb enough to think that he is going to let him criticize Trump without ever directly criticizing Trump.

Right.

He's not going to criticize the choice to go to war. He's just going to criticize the war. And Trump is already coming out and saying, I like Marco Rubio. I mean, I think we know J.D. Vance only becomes president if Donald Trump resigns, passes away or is removed. I don't think he'd even get the nomination from the MAGA Republican Party at this point.

I think that's right. And I think, you know, this isn't hypothetical because I think that the thing we've talked the most about that we focused on is the idea of Congress constraining a president and the specific proposal for the impeachment of the Secretary of Defense. If J.D. Vance really wanted to speak out against an illegal war, he could support the impeachment. Of course, he's not going to do that. And so the lines are being drawn in a very firm way that if you are You know, I should say, too, this exposes a deep divide in MAGA itself because there's part of MAGA that is just a cult for Donald Trump. And then there's another part that really was for the end of endless wars, as Trump put it. And how could you actually believe in that principle and still before this war? Well, there are some.

It's almost like libertarians are full of crap is what you're suggesting, sir.

Some MAGA Republicans who have pushed back and, you know, in that Massey camp, they see what they cared about. And is J.D. Vance one of those people? I don't think so. J.D.

Vance wants to be the Republican standard bearer, but he can't bring himself to even talk about what a different foreign policy would look like. I mean, is he I don't think he's trying to articulate a different version of how America should conduct itself overseas. It seems like he's just trying to inherit the Trump movement. without inheriting the political consequences of Man Baby's decisions.

Yeah, and I mean, let's also just, as much as I did see him try to walk back the aggressive, to say the least, the abusive, the illegal, as we talked about on the podcast last week, rounding up of non-citizens by eyes and the illegal crimes that they've been committed. He made some comments recently about how, well, I'm open to the possibility that things have gone too far. First of all, that's pretty weak sauce. Second of all, He was throughout the administration saying this, you know, America for the Americans, all this nativist kind of BS, the Christian nationalist. nods that we see from him. So the idea that he's in any way opposed to this president or has a route to going back to the moment where he called him essentially a Nazi and compared him to Hitler.

It's over.

You know, this guy's ruined his career and good riddance to people who care only about their own election and not at all in the most remote way about principle. And that is J.D. Vance.

Absolutely.

I look forward to the time when we think of him as a lesser Dan Quayle.

Oh, I already do think of him as less. He's a lesser Mike Pence. I mean, yeah, he makes Dan Quayle look like Obi-Wan.

I mean, Mike Pence, we got to remember, right? The hero of January 6th.

Let me tell you something. Mike Pence gets to be the hero forever because he did one thing right in his entire life. The most corrosive homophobe of all of our governors, the guy who just played piety while going against the teachings of the Christ he didn't follow and nodding for everything Trump did. And then on the very last day, he does one thing right, and he gets to be a hero forever.

A redemptive moment. Can you imagine J.D. Vance, though, to get serious and go back to January 6th, what J.D. Vance would have done in that moment? I mean, I don't know if you have any doubt, but I think it's pretty clear that he would have said he has the ability to not certify those votes, that the Constitution gives him that power, and... And it might've worked. That's what's from all of our podcasts, which have focused so often on January 6th, how close it came.

You know what he'd say. He'd say those cops just let those law-abiding tourists in and Joe Biden's FBI did all the violence, even though Joe Biden wasn't president yet. That's exactly what he would say.

One more scenario. I think we've been hammering at the idea that we're not gonna see this guy get the nomination. It'll never be president unless Trump resigns or dies. But imagine the scenario where there is a close election. He has gotten his own party's nomination. There is a close election. He would be the person in the next special session of Congress to certify his own election to decide whether or not the votes were valid or not. And one point about this, there is something called the Electoral Count Reform Act, which says, no, the vice president can't just deny the certification of electoral votes. He doesn't have that power. But J.D. Vance knows enough constitutional law that he could say, well, that's unconstitutional. The Constitution, the 12th Amendment gives me that right. How crazy is that? Let's make sure we never get to that point.

Corey, they just named Jim Jordan to lead the Republicans in the House. I don't think they're big on learning stuff. You know, learning stuff is woke and learning stuff is something that Jim Jordan has never wrestled with, if you know what I'm saying. So let me end this with the biggest question, Professor. We have this president who keeps testing the limits of executive power, the Supreme Court, that says, go ahead, we're going to give you all the immunity for any crimes you commit. And this Congress that voters have now explicitly demanded start providing some checks and balances. I'm fond of saying America's, you know, eventually we get around to doing the right thing. You know, we're like a drunk guy trying to parallel park. We'll break all kinds of stuff, but eventually we'll get there. Is this democracy resilient enough to correct itself? I mean, what do Democrats have to do in the next two years to demonstrate that this Constitution is still going to mean what we like to think it means?

Well, we have had a lot of moments since Trump took office where I think and I've heard from listeners when we've had those shows where I really was afraid for the future of American democracy when the president of the United States is so powerful, willing to use that power to declare his own war. to shut down political opponents, to use the office for not just a small petty theft, but a massive crime spree. He and his family, things were looking really dark. But yet this response, it wasn't just a small victory, that it was a massive victory of the American people, partly with a desire to stop these abuses. I am more encouraged than I have been in a very long time. And it's a moment, too, to do what we didn't do during the Biden administration, which is to not just have oversight of Trump, but to think about how to repair this democracy. What kind of laws can do it? And that's what we'll devote ourselves to as we go forward with this podcast.

Right on. Corey, I want to thank you so much for letting us all feel like we get to cheat off your paper in a constitutional law class. And I want to thank Wendy and Bea Wolf and all the great pros who put this monster together. What's the best way for our listeners to follow you, Corey, and keep up with all your work the other six days of the week?

Well, I will say on the American People's Paper, where they were filling out ballots, A plus, of course. And let me also say, wherever you're listening, hit that subscribe button, follow us on Apple or Spotify or wherever you get your podcast. And if you're watching us on YouTube, hit that subscribe button. Tell your friends. We're growing massively because of the amazing listeners that we have. You can also find us now on Substack, where you can read our newsletter and actually just watch the podcast if you prefer to watch it there. We're posting it every week. John, what a pleasure. What a great turn for this podcast, which has largely been about the disregarding of the presidential oath and is now going to be about a Congress that's going to respect its oath and hopefully hold this president to account.

So can we finally change the name to the Oath and the Office and make it a Trump joke?

The most requested comment by far.

Take the meeting on this idea, Corey.

Just take the meeting.

Thank you so much, Professor. I want to thank you so much. It's going to be a very interesting two years. There's going to be a lot of constitutional challenges. And I'm so grateful that we get to join every week with all of these deeply attractive listeners. Folks, please write to us. We read your letters on the air. We'd love to hear from you. I'm on Sirius XM, Channel 127, five days a week in the afternoon. Corey joins me live in the Times Square studios every Monday. And my new book is now on sale every It is available at the non-evil website of your choice. It is called Fake Christians, a biblically correct guide to breaking the grip of holy hypocrites, gospel grifters, and theocratic thugs. Available Easter time, Blaspheming Your Way by Simon & Schuster. And I just want to thank you, Professor.

It's always a pleasure.

We'll see you all next time on The Oath and The Office.