Mueller Warned Congress. Trump Celebrated His Death.

Donald Trump responded to his [music] death at age 81, you know, like a drunk guy getting kicked out of a casino. Uh, I'm glad he's dead. It's vulgar. [music] It's like the comment section come to life. Steve Bannon just blurted it out on his show like he's the villain at the end of Scooby-Doo [music] episode. He said, "This is a test run for elections." Things that we thought were bedrock no longer are. And if you're in a dictatorship by the time we're we're talking [music] about a third term, really everything is on the table. >> Trump has effectively taken America's air travelers hostage >> [music] >> for his voter suppression bill. He wants the chaos. He's holding the paychecks hostage to force through this voter restriction bill. Welcome to another episode of The Oath and the Office. I am John Fugelsang. We've got a great one planned for you today. The truth about Robert Mueller behind the petulant tantrum distractions. ICE is at our airports. Is this really about the midterms? And big news out of Mississippi about the future of voting by mail. For more, let's go to the star of our show, the author of The Oath and the Office, the pride of the poli sci

department at Brown University, Professor Corey Boom Boom Brettschneider. Corey, welcome. It's good to see you, sir. Thanks, John. I appreciate the new nickname. Every week I look forward to these introductions as ridiculous and wonderful as they are. We've also got a lot of stories to talk about and most important on that list of I'd say up front is correcting the record on Robert Mueller who's really been maligned and slammed and really the story of the truth of the matter and uncovering it is the is the key to uncovering and rescuing our democracy.

Well, let's jump off on that point then because this is a man who spent his life serving this country and then was insulted in death by a petulant child who treats the Constitution like something he gives a one-star Yelp review to. Robert Mueller was a decorated Marine, a Purple Heart recipient, a lifelong public servant, and Donald Trump responded to his death at age 81, you know, like a drunk guy getting kicked out of a casino, right? Like, "Uh, I'm glad he's dead." You know, it's it's it's vulgar. It's like the comment section come to life. Um, and and Professor, I have this crazy thing I do under Donald Trump's tenure.

I pick three things every day that I'm allowed to get upset about and I wasn't about to let his insolence towards the late Mr. Mueller make me crazy. But I want to do point out that I'm glad we're together this week because we need to stress that the Mueller report was not a hoax. It was 400 plus pages of, "Sir, you might want to sit down." 37 indictments, multiple convictions, seven guilty pleas, and buried in there, 10 counts of obstruction of justice.

That's not fake news, Corey. I mean, that that's like a punch card, right? One more and he gets a free felony. And I want to get your thoughts on this, Professor, because you wrote extensively about Robert Mueller including a great piece in The Guardian, Did Trump Obstruct Justice? Congress must determine that. Far from exonerating him, Corey, this report showed 10 areas where he had broken the law, obstructed justice, and it was up to the Congress to decide if they wanted to do anything about it. So, let me begin from a constitutional perspective.

What did Robert Mueller actually establish? I'll say too, I'm going to jump into that, of course, and into the 10 counts of obstruction of justice and what should have happened and if our system was functioning the way the framers intended. But I do want to say too, you know, that this was just such a decent person who really worked very hard, I think, to to honor his job, his positions, both as director of the FBI and also most importantly as special counsel. But it went tragically wrong partly because I think he was too optimistic about And in retrospect, I might say too that that, you know, I was hopeful and maybe a little naive in thinking that this might this report, and Trump himself thought it too, might bring Trump to an end. So, let me get into it.

I mean, we'll talk about part one, but part two of the report in some ways is the most important. It outlines 10 instances where the president of the United States in various ways violated the law, tried to obstruct justice. And they include, for instance, an amazing story where he told Don McGahn, his counsel, to fire Mueller. And I as I talk about in The Presidents and the People, McGahn reflected on this and knew a lot about the Nixon story that really we have to talk about the Saturday Night Massacre that framed all this and decided he wasn't going to do it. And he was convinced after thinking he was about to resign to just go back to work. And turns out Trump never brought it up again. He just didn't do it. So, that's just one of 10 instances. They include the attempt to interfere with the Mueller investigation in various ways including using Corey Lewandowski to try to do so. They include, of course, the firing of James Comey, a story that keeps going as he tries to exact his revenge for Comey's

really refusal to to bury the investigations against him and and his insistence on doing his job very much in the tradition of Mueller himself. So, why was there no indictment? That's the real story about Mueller. Many of us were hopeful about it, especially when when you read the evidence. The way Mueller put it was very convoluted. He said, "We have not exonerated the president." He didn't go so far as to conclude he was definitely guilty. But the report in its evidence shows guilt. That's what he's doing. So, I think here's the bottom line. First of all, there was a Department of Justice policy at the time, not a law, that prevented indictment of a sitting president and Mueller thought he was bound by that. I think he was wrong. He should have been more aggressive right there and could have indicted the president, but he believed he was bound by this policy. And most importantly, he was following the Watergate playbook which was that he thought he would hand over the report, especially these 10 instances of obstruction, to Congress and that that would trigger and this is my

understanding would trigger an impeachment. And the system would work the way it did during Watergate and maybe even we wouldn't have to go through a full impeachment. We would have had the president resign having been accused of the crime. And Trump himself was clearly worried about that early on in the Mueller investigation. This was the end of his presidency, worried aloud. But in the end, he survived it by just fighting, fighting, fighting. And partly, frankly, I'll say one last thing. When Mueller had his moment to testify to Congress about the report, it was really weak. He was too careful not drawing the conclusions that he should have been and didn't really give the ammunition to Congress that he should have to to push their hand to to impeach him. He was not, of course, impeached for this instance of obstruction of justice.

Although in that Guardian piece and you and I talked about this extensively, I was certainly pushing for that that impeachment on precisely these grounds. Yeah, so was I. I mean, and here's the thing. Donald Trump never actually refuted any of Mueller's evidence. He never said, "I didn't do these specific things." His defense was basically, you know, "Yeah, but can you prove it while I'm actively blocking you from proving it?" Right? Like he just deleted texts and screamed no collusion a lot. The report did not exonerate him. It it failed to recommend a criminal indictment based on a long-standing Department of Justice policy against indicting a sitting president, not based on Trump's actual guilt or innocence. And Corey, once again, that DOJ policy against indicting a sitting president is based on absolutely nothing in the Constitution, right?

Constitution written by gentlemen who did not want a king anymore, did not want someone above the law. And so, that was the reason why Mueller didn't have an indictment. He wasn't allowed to. Yeah, those policies of the Department of Justice, to say the least, irritate me. They they are the bedrock in some ways of the court's eventual horrible decision, one of its worst ever, finding that not just sitting presidents but former presidents in their official duties are presumptively immune. We could talk about the details, but it wasn't in many ways the predecessor. But it was a policy. And go figure it was a policy designed by the Office of Legal Counsel in the Nixon and Clinton administrations in order to guard guard what essentially is the boss of the Office of Legal Counsel, not really an independent, sometimes referred to as kind of the internal Supreme Court within the executive branch, but it's no such thing. It's really has a history of defending the powers and presidents. So, the fact that the Office of Legal Counsel had said this,

you know, I I think Mueller was overly formalistic, overly deferential to that policy and might have tried to break with it given how how misguided it was. And think of the difference, you know, right now all this seems inevitable. We have the immunity case. We have Trump's re-election. But he was vulnerable at the time. He was predicting his own end of his presidency. And if we would have seen a more aggressive Mueller, we might have been in a totally different world. But he he was a liberal Republican. And many liberal Republicans during Nixon turned on Nixon and provided enough pressure to cause him to resign. I do want to say something about what's known as the road map, which is what Mueller had in mind. The road map is what Leon Jaworski, the special prosecutor during Nixon, used to hand over all the information that the grand jury and his investigation had found about Nixon's crimes including eventually through litigation they got US versus Nixon, the so-called smoking gun tape showing, you

know, dead to rights that Nixon definitely had obstructed justice. And they handed that all over to Congress and that's what led to the vote in the House Judiciary Committee, bipartisan vote for articles of impeachment including for this this tape and this the obstruction around it and that caused Nixon to resign. That's what Mueller had in mind. So it's not that he you know was misguided or didn't know history. It's that he was optimistic about the way that our system was going to work and and now it turns out it doesn't work that way. Yeah, optimistic might be the kind way of putting it but I I think they're right. I you know, Robert Mueller did bring in money laundering experts and then chose not to follow the money. Which was always to me the greatest tragedy of all of this but I do want to point out that you know, this was all proven. Russia interfered in the 2016 election. It's not alleged.

They they did it. That is the unanimous conclusion of the entire US intelligence community. The CIA during Trump's own presidency. I mean this is like OJ agreeing with the glove, right? The Kremlin disrupted our election to help Trump become president. Russian intel services viewed Trump campaign members as easily manipulated because by God they wanted to help. And the bipartisan Senate Intelligence Committee report led by Marco Rubio confirmed that Russia interfered to help Trump. It's an amazing achievement of propaganda over facts that no collusion, which isn't a crime and he was never accused of managed to dwarf the reality. I mean the bipartisan Senate Intel Committee report confirmed this. Why didn't that fundamentally reshape the public's understanding?

Well, you know, in some ways when we talk about the birth of the the success of Trumpism rather than its early iterations the lying about what happened and the you know, no collusion and all these cliches that we're so used to Trump repeating. You know, that it was a hoax in particular. I mean it is true. We've been talking about part two of the Mueller report which outlined these 10 instances of obstruction of justice which to my mind when you read them carefully, they clearly say Trump is guilty of a crime, the same crime that brought down Richard Nixon. Now we're going on to part one and it is true. I mean what you know, we can clarify this that he didn't conclude that a crime had been committed by Trump and his campaign including with the Russian government but he certainly did conclude that there was a massive operation to interfere with the election on the side of Trump and when Trump says it's a Russia hoax, he denies that and Mueller's team importantly did indict the Russians. They were never actually tried because you know, they're in in Russia but indicted Russians that were

involved in this operation and used that case to show us in addition to the investigations that you were talking about how extensive this interference with our elections was. Now if we're going to talk about Trump's you know, it's not that he he colluded in the sense that many thought he might have but he certainly I think was negligent or reckless in refusing to do anything about the Russian interference and then to go even further to deny that it even happens. You know that that itself I think is arguably a dereliction of duty that might itself have justified its own impeachment article. You know, the 10 of instances of obstruction. I guess I was focused on that but the more I think about it, you know, the lying and the ignorance and the refusal to defend you know, the president's oath to go to the name of our podcast is to preserve, protect and defend the Constitution of the United States. How are you doing that if you just ignore this level of foreign interference? Well, you and I talked about this a lot on SiriusXM at the time. To me the fact that the

Democrats went ahead and impeach Donald Trump a few months later for blackmailing the president of Ukraine to cheat in the 2020 election. >> Yeah. And they didn't bother to piggyback these 12 these 10 gift wrapped cases of obstruction of justice shows to me the Democrats either didn't take it seriously or were embarrassed and wanted to put it behind them but it was the Democratic Party that could have impeached Trump for this. They impeached him anyway and ultimately that Congress is the ones who let him off. Did Mueller's restraint Corey unintentionally enable all of these future abuses of power that we've seen cuz boy if he'd gone after the money laundering and if Democrats had gone ahead and impeached him for those 10 10 counts, none of this would be happening right now.

You know, I unfortunately my conclusion is that yes, that he had a it was a moment where we could have stopped a lot of this as Trump himself acknowledged and the most you know, apart from the report itself and let's not forget too that Attorney General Barr was you know, on television claiming that it exonerated Trump and he did that. He basically stole all of the power of the part two of the report showing these instances of obstruction of justice by lying claiming the opposite of what it said that somehow there was an exoneration. So that was mistake one and Mueller did try to you know, put out public statements to push back but it wasn't effective. His real moment I think where he could have pushed for impeachment he could have been clear about why these why obstruction is so bad for one thing.

That might sound like a minor crime. I mean think about it. He's really trying to place himself above the law by by firing, by obstructing the actual investigation of what happened including the credible investigation of Russia's interference with the election. That's all what he could have sat when he was testifying before Congress about the report before the impeachment. He could have brought that out clearly. Now I don't know if it was that he was already sick or that he was trying to be careful what the reason was but it was a really disastrous performance when he when he did that. So as much as I'm trying to praise his intent I I can't help but recognize that it was such a major moment. If we would have had somebody like Jack Smith for instance, I think we might have had a different history. It was a lost opportunity and then the Democratic Party as much as you and I and others did push to expand that impeachment inquiry beyond the you know, it was I think an impeachable offense the Ukrainian phone call trying to pressure the president of the Ukraine

into giving him dirt on his opponent Joe Biden and not even giving dirt, lying about his about it. Lying, announcing a fake investigation on American TV. That's what that impeachment was about. It was crackers but again, I guess the the villains of the American public as well then because what you're saying and I agree with you, Mueller's testimony that was considered so dispiriting just kind of show that for the American zeitgeist, it really is the TV age because the performance didn't matter as much as the facts. Oh, I don't really care what he's saying. He looks tired and Donald Trump ran with that and that stupidity was enough to let this felon get away with it. Yeah, and I do think that's part of what was understood by the Watergate Committee and was understood during that moment. You know, people were glued to their television as you heard the president's aide Butterfield say that there were tapes of all this investigation and as we began to learn what was on those tapes, John Dean's testimony about the details of the

cover-up and the crimes of Watergate which never really were fully elaborated. There was a focus only on the break-in and the cover-up, not the other vast crimes that I detail in the Presidents and the People including the attempt to attack even incapacitate Daniel Ellsberg on the Capitol steps. The attempt to blow up the Brookings Institution to get information showing that the president might be guilty of treason. The you know, we could keep going. The break-in at the psychiatrist's office of Daniel Ellsberg. We didn't even get to all that. We just got to one thing and maybe that's what was in the head of the of the committee during the Trump impeachment showing the obstruction but that was enough and but it was dramatic and it was dramatic in a way that certainly Mueller's testimony was not and certainly the impeachment itself. So so when we look back, you know, it's not just coulda, shoulda. It's that we're trying to understand how the system was supposed to work and you know, eventually when we get to the point after the midterms where we're talking about impeachment again, I think we will be there. We've got to do it in a way

that is effective and yes, television matters. Audience matters. Yeah. Let me move on to a less obvious but no less nefarious example of corruption. This week Donald Trump is deliberately extending the security line chaos in our airports by holding TSA funding hostage to really the passage of the Save Act which we've discussed extensively and it's designed to make it harder for people to vote especially women. Now John Thune and the Democrats brought Trump a deal over the weekend where they would just carve out ICE until they could come to terms on on the funding for ICE and Trump has said he'll sign no legislation including TSA funding until the Save Act is passed. So he's intentionally extending the unfunded operations of TSA.

Trump has effectively taken America's air travelers hostage for his voter suppression bill. There was a deal. Bipartisan. Republicans and Democrats were both saying, "Hey, let's pay TSA workers and stop the meltdown." But Trump wants leverage. He wants the chaos. He's holding the paychecks hostage to force through this voter restriction bill. It's sort of like more mafia techniques. Nice airport you got. Be a shame if the security line got longer and now it's not bad enough. I just flew yesterday. The long lines and people furious in the airport and families stranded. But he's figured out the way to get around this and it's also involved cheating in the upcoming election. Installing ICE agents.

Untrained ICE agents who are paid in our airports to ostensibly do the work for TSA agents who are not being paid. So we're now seeing immigration enforcement guys being deployed into airport security environments during a staged DHS funding crisis. Corey, I don't even understand what I just said. It's very complicated. But from a from a from a constitutional standpoint, what kind of red flags Professor does this raise for you? Well, anything involving ICE is a red flag. As the reports come out about their training, which is either non-existent or exists online. I mean, can you imagine having a national force like this that is supposed to be focused on immigration, but of course it's functioning as a kind of national stormtrooper force for the President of the United States with no training, no regard for civil liberties.

We saw them deployed in cities. There's arguably some successful pushback in Minnesota, but now they're being fanned out instead of into our cities, into our airport, which really fundamentally affects our right to travel. If you think of what our fundamental rights are, I'd put the ability to move around the country itself at will without fear of our civil liberties being violated. Now the intimidation that exists just seeing ICE in the airport given their record really is is I think sending a kind of chilling effect on Americans. And the fact that he's using this kind of fear as leverage to try to get his save so-called save act through just shows you how maniacal this is.

This is somebody who is really trying to govern as a dictator. He's about trying to subtly steal our elections by using this fake save act. And of course we talked in an amazing discussion with Stacey Abrams in such depth about how the save act works, why it looks like a voter ID act and it's anything but. It's an attempt to try to deprive those who have the right to vote from voting by specifying specific forms of ID that many Americans don't have. And then, you know, in the one-two punch, this deep this this, you know, this force that he's he's brought out. One of the things talking about the first term is it was often said, "Well, he doesn't have anything like the Nazi stormtroopers, the so-called SA, who were intimidating individuals in the streets." And now he does. It's called ICE and we've seen them murder two people in Minnesota. And now that same force that has scared many Americans frankly, as many as much as we have some standing up to them, many are scared. And here they are in our airports interfering with our

fundamental liberties including the right to travel. Yeah, and and again uh ICE and TSA have very different jobs and very different missions. So this is happening again because the Republican Party refuses to make ICE follow the law. Three big things, Corey. Democrats want there to be warrants. You can't break into someone's house or business or car and drag them out by the hair without a warrant. Also, they should show their faces. You're law enforcement, you should be working above the law. Show your damn face. And three, you should wear body cameras. So we know that you're not committing human rights abuses. I mean, this is this party my whole life that screams about law and order and they don't want law enforcement to follow the law or have any order or be identifiable. It is a lot like Germany in the '30s with a secret police. But again, a lot of people are saying, including me, this is about conditioning the public to accept a more expansive federal law enforcement presence in everyday spaces

because then we can send ICE to the polling places. Steve Bannon just blurted it out on his show like he's the villain at the end of Scooby-Doo episode. He said, "This is a test run for elections." Corey, is that alarmist thinking or is that really historically grounded especially since Steve Bannon is saying the quiet part out loud? Yeah, I mean, he often does tell you what's going on. He wants the most of Steve Bannon wants the most extreme version of fascism and Trump, you know, is not immune to that. That's often revealing what's really going on even if they're saying, "Oh, this is just an innocuous attempt to help out TSA." I I don't think that's what's going on. I mean, I think it's helpful here to return to the purpose of ICE. You know, ICE's statutory purpose and Homeland Security's purpose is immigration enforcement. But when you see what they're actually doing in Minnesota and other cities, it's shutting down dissent, going after protesters. I watched one video with an ICE agent. You know, of course there are citizens who are trying to hold ICE to account by taking pictures of them. And they're doing that in airports. They

were they were doing that in Minnesota. And you know, one of the ICE agent says in one of these clips to a woman who's filming him, you know, "Congratulations, you're now on the domestic terrorism list. We have a database." You know, that that's just one piece of what's going on here, which is the deployment of what's supposed to be a immigration enforcement agency building it up. And they have vastly expanded its budget despite the current battles. The Democrats did allow this to happen. And what's happening is the shutdown of our civil liberties. That's what's that's what this this stormtrooper force is turning into. So the idea that they would be deployed to polling sites in order to again, you know, you don't need 100% of people to be intimidated. You just need a sliver of them. And as you start to build up things like the requirement of these IDs that that many Americans don't have.

And you build you see too this possible deployment of ICE at polling places, you start to see what's going on, which is the attempt to really shut down our democracy. Absolutely. I mean, when you look at what's happening now in the misflights and the long lines and people upset and screaming, it's it's not incompetence. It seems like it's part of the plan. Chaos is the product. This is the point. It's not happening by accident. Chaos is the strategy. This is the environment where power grabs start to feel normal. So before we hit the break Professor, I mean, if similar tactics are used in a few months nearing polling places, what constitutional protections would or could come into play?

Um you know, I think we're I'm just trying to wrap my head around it. I'll say a couple of things. One is that what what I think is successful in Minnesota is the general idea and I tried to outline this in broad principle, but there's a lawsuit that does this that talks about the 10th Amendment and the idea that in our Constitution we don't just have a federal unitary state. We have the role of states and in particular law enforcement is supposed to be the role of states. And so when ICE starts acting like a federal police force, that's a real problem. I've been urging and I've spoken actually to attorneys There's one actually I'm going to try to get onto the show to talk about this that if ICE commits crimes as certainly looks like they have in Minnesota, that it is the job it is the duty of attorneys general or local prosecutors to bring criminal charges against ICE.

We haven't seen that yet, but they are under the impression that they have absolute immunity. J.D. Vance lied and claimed that. They do not. So we need to see that kind of local law enforcement. Now when we start to get into the the domain of airports, it's a closed environment. They have more control. And so how the litigation is going to work I think is is going to be more complicated. We still do have First Amendment rights that can't just be shut down. We're going to talk later on about a case in which it looks like our First Amendment rights were vindicated. That might be one way.

But the ACLU, our sponsor, and other groups are I'm sure going to be in the process soon of trying to figure out how to defend our civil liberties not just in our cities, but in our airports. When we come back, the Supreme Court and the Mississippi ballot case that could affect how all of us vote by mail or don't get to vote by mail. This is The Oath of the Office. Welcome back to The Oath of the Office. I'm John Feigel saying, "Hey Professor Bretschneider, this is the part of the show where we tell people they should subscribe, right?" I mean, So you don't want to just get all this sexy one time.

Come on now. You want to have this every week in your inbox. Join us every week. We have amazing guests. We of course had Stacey Abrams. We have amazing guests coming up too. So hit that subscribe button if you haven't. And join us every week. So let me ask you about the Supreme Court because we haven't screamed about them all day. This case out of Mississippi could restrict counting mail-in ballots received after election day even if they're postmarked on time. You mail your ballot on time, but let's just say for whatever reason Louis DeJoy's Postal Service is a bit slower in certain zip codes and it's received after the polling day.

Um I mean, constitutionally what's at stake here? This seems really crazy and Alito Sam Alito seems really excited about this, Corey. And anytime Sam Alito gets really excited, the Constitution gets nervous. I listened to the oral argument in this Mississippi case, which is Mississippi has a sensible law. Let's remember too, Mississippi is a Republican state. And despite that, they have a sensible law about voting rights and voting access that says, "Look, if you as long as you get your ballot in the mail by election day, if it arrives after election day, we're not going to disenfranchise you. We're still going to count it." Now that's very sensible. Now of course the Trump and his allies have figured out that what counting ballots after election day does is help Democrats. And so as they are in the save act and in we talked about the possibility of voter intimidation at the polls, they designed the lawsuit to try to stop that. Now

what's incredible to me is that it's not only gotten to the Supreme Court, but when I listened to the oral argument, the justices seemed taken with the arguments arguing that it's somehow invalid to count these ballots after election day. I'll give you their argument. Their argument is that there is a 19th century law that mandates one election day and that somehow it's too impractical, I guess is their argument, to to for the ballots to be counted after and I'll just give you some of the examples John and you can respond to them. I don't think you need a lot of read to respond to these arguments at all. They're so silly. One is that well, what if I give it to my brother and I say that I or relative and I say that that I I cast my ballot. Isn't that enough you know, enough to cheat and so they're basically giving voice to the idea that the false idea that hasn't been proven at all that this technique is being used to somehow obscure the rules of elections. Now the the solicitor general for Mississippi had a

pretty good response to that which is there's a postmark on your on your mail-in ballot and so you you've given it to and this has been done also by the way, you know, for for about a century that you've been able to vote by election day and it still counts after. So all these arguments, you know, I I just it's either so naive to think that that what's going on here is, you know, not about politics or more likely certainly for some of these justices, it's obviously that they're taking the side of the president in in a crucial matter in which they should not be. You know why election day is the first Tuesday of November? Do you know do you know why it's on that day Corey historically?

Because 200 years ago the expectation in an agrarian economy was going to be that you were working on on you know, getting ready for the harvest for winter all through the fall and then by the end of October, okay, you'd have to be able to go to church on Sunday once you were done planting your seeds and getting ready and then after you go to church on Sunday, they would give you one full day to travel by horse to a polling place and that would be Tuesday. That is why our election day in this century with electric heaters and alarm clocks, our election day like daylight savings time, we're still being controlled by a farm economy of 200 years ago and our leaders know this and people who don't want greater participation in democracy don't want election day to be a holiday.

They don't want mail-in voting. They don't want it to be easier to exercise your right. That's why we're seeing women are going to have to have save act passes but bring a birth certificate showing their their their name before they got married. It's all anti-democracy. So I mean if the court rules that ballots arriving after election day can't be counted even though they're real voters and they really voted and they mailed it on time, but it came late for whatever reason. I mean what what effect is that going to have on voter participation? Is this just going to create like a patchwork system where the right to vote essentially depends on your geography at at how fast the post office is in your part of the country?

Yeah, that is actually what will happen. You know, Donald Trump has uttered the phrase that he wants to nationalize our elections and there he is succeeding in trying to do that. Nationalizing meaning nationalize and suppress the vote at the national level and not deferring to local governments different ways of doing it including Mississippi which sensibly says yes, your ballot can arrive after election day and they're doing it in different ways. We can list them. One is the save act which we talked about with Stacy Abrams extensively last week. I recommend going and listening to that conversation if you haven't heard it.

And we talked about the possibility of deployment of ICE at polls and now here's a third that's being done through litigation and with the aid of the Supreme Court. Unfortunately, it looks like possibly in shutting down democracy. I should say we don't know for sure how they're going to rule but they were certainly sympathetic and they're using this obscure 19th century law to offer a brand new interpretation as they have so often in Trump's favor. Think of the immunity case. Think of the getting rid of the ability of district courts in the federal system to have universal injunctions just coincidentally at the birthright citizenship case was the moment favoring Trump's attempt to shut down the Constitution and now here they're going to do it again possibly in saying that we have to all of a sudden overturn years and years of allowing ballots to be counted after election day to all of a sudden enforce this unique reading that is the original meaning of this 19th century statute and you know,

it's demoralizing frankly teaching constitutional law and trying to get students to see how the law works, read it and then you watch this and it just like come on. I mean the idea is there's no politics here. It's never been conservative versus liberal. I say this all the time professor. It's always been aristocracy versus democracy. These right-wingers run a good game of saying, oh, we oppose government. They love government. Government's how they give their owners tax cuts and deregulate their pollution. They hate democracy. They hate one person one vote. They hate the thought of the rabble actually having a say in how these funds were administered. I mean we we talk a lot about how states have flexibility in administering elections but could we see this decision impact not just federal elections but local and and and state races nationwide?

I have to think about that. I think that the law at issue sets a one that it's what's what's valid about it is in election day for federal offices but I I'm not sure if John. I'm going to get back to you on that. I want to say something about your deeper point which is that um we really have never had a moment in which democracy is just established and then is self-executing. We've had instead the history of the American Republic has been leaders and of course this is what my book The Presidents and the People is about who tried to shut down democracy. John Adams and the Sedition Act, President Buchanan and the Dred Scott case denying all black Americans any rights under the Constitution, Richard Nixon and his criminality and now Trump trying to shut down democracy and voting and the fundamental rights associated with it is a big part of that. This is one of the most brazen attempts I've seen to do it. It's sometimes more subtle and it requires we the people to to be

aware of it. That's what this show is about thinking about it and and also to fight back. Yeah. So let me ask you about another part of this broader pattern of hostility towards the free press. A federal judge just ruled that the Pentagon under Secretary of Yager Meister Pete Hegseth, they violated the First Amendment by restricting press access. We've heard a lot about this including outlets like the New York Times for whatever reason. Oh, you don't want to call it the Gulf of America? Well, then you can't come into the briefing room. Make room for you know, the My Pillow Guys News Network. I wish I was exaggerating.

That's literally what's going on right now. Corey, what is the core constitutional issue in this decision that the Pentagon violated the Bill of Rights by not letting press in? This is a great opinion. I read it this morning and what the judge says is that this is about nothing less than the right of a free press to operate and what happened here was I mean the details are really kind of stunning. It's not just that he's trying to control the press room Pete Hegseth and and Trump but they they really were trying to get the New York Times and other outlets. It's the New York Times that sued and had the resources to do so and often has vindicated press freedom in the past.

What what what they're trying to get the Times to agree to is to not investigate stories that haven't been disclosed by the Pentagon. Think about that. It's in other words try to get them to agree to no longer do reporting, to do news. That's what newspapers do. They uncover stories that people in power that government doesn't want us to see and so trading access to the briefing room in exchange for that, this judge said absolutely not that you can't you know, that that it's true that there don't have to be briefings. We don't have to open up at all a room in the Pentagon to to press reporters but once you do, the idea of the opinion is you can't then pick and choose based on viewpoint or based on opinion. And that's what's going on here and so the judge says it's unreasonable. It's a violation of the First Amendment to to discriminate against the New York Times because their opinions and really what it I think the most powerful part of the opinion is because they're doing the job of the

press. The very thing that's protected in the First Amendment. It's a great opinion and you know, as much as we're we're you know, three-quarters focused on the threat to our democracy, the self-coup that's been unfolding that we've been talking about since Trump took office and we began the podcast, we're always looking for moments of hope where the Constitution is reclaimed and yeah, this is one of them. I mean anything that just shines a light on the thin-skinned unmanliness of Pete Hegseth is okay by my book. I mean I think back to the Bush administration and the Iraq war. I mean the government often uses national security as an excuse when they want to limit press access but I mean where does the court usually draw the line on this and and and do rulings like this actually deter future violations or is this too little too late?

No, I think this is a it's a powerful you know, we talked about Muller's weak testimony for instance in the weakness of the report. This is anything but. It really is clear slamming of the Pentagon. They're already in retreat talking about I think at one point they wanted a chance to rewrite the rules. He he just said no this judge and really slammed this way of doing and it's a clear vindication of the First Amendment. We'll see they could try to appeal but I just think the the facts are so damning in the revealing that this was a blatant attempt to shut down reporting, to shut down the press and that they're going to be too embarrassed to come back.

Sometimes shining a a on authoritarianism uh least backs it off, and and that's my prediction what's going on here. Okay, I have many more questions about all of this and and tying this together. Uh when we come back, I want to ask you a few big picture questions, Professor, and I want to share with you an email from a terrified listener in the UK, uh who is mortified that somehow Donald Trump is going to turn this into a third term. I'm not that scared about it, but let's let's comfort the British when we return. This is The Oath and the Office.

Welcome back to The Oath and the Office. I'm John Fugelsang. Professor Breitmeier, when when when when you step back and look at all of this that we've been discussing, the the courts, the executive power, the presidential secret police at the airports, election rules, the press freedom, uh are these all isolated stories, or is this all of it part in a very coherent shift on how power is being exercised now? Well, you know, I've been saying this from the beginning, and I wish I was exaggerating, but I think it just turns out to be more true, that the real mega story here, the meta story, if you want to call it, of all these pieces, how they fit together, is that this president is really intent on destroying the checks and balances that define the rule of law and our democracy. And we began by talking about Mueller and the way that he was exposing the you know, these 10 crimes really of the president and and trying to communicate in a subtle way that this was a authoritarian threat. And and think about it, you know, the the way that those crimes

unfolded, they really showed a disrespect for the idea that there were any constraints on the president. And he's gotten so much worse, but that was really the warning sign. I come back often to Patrick Henry, the anti-federalist warning, and you'll see me on if you want to tune in. I just did an interview about Patrick Henry and the authoritarian threat at from the founding on for a PBS NewsHour. And and just to to sum up what he said, he said, "Look, the way that this system's weakness will be exposed is that when you get a president who's not just a bad president, but a criminal president, they'll begin by testing the system with small crimes." Now, these weren't small crimes, obstruction of justice, but relative to a lot of what's going on now, but for instance, January 6th and the stealing of the election, they were. And Patrick Henry's warning is that president, when he sees there aren't real checks on power, and Henry unfortunately predicted correctly that impeachment is not going to be the real check that framers like Madison and Hamilton think it's going to be, they're going to get more bold and bold and

bold. And I'll just remind you of what Henry says, "Until they make one bold push for the American throne." In other words, try to collapse the system and become a dictator. That is what we've been talking about. The ways that Trump is usurping the system into pure authoritarianism. And is he losing? Well, each week we chart it. There's some wins, some losses on the side of authoritarianism and some against it on the side of democracy. And and that's that's I think what brings all these stories together. And sometimes they're happening in obvious ways, like these crimes, and sometimes more subtle ways, for instance, the Supreme Court undoing the right to vote in this case, Stacey Abrams talking about the details of how the SAVE Act works. And you know, it's not obvious to those who aren't following this closely that this so-called voter ID law is actually a voter suppression law. And so yes, that's the theme here is is the authoritarian threat to our democracy.

So, I want to read a letter we got from a listener in the UK. This is from Vanity, and she writes, "The 22nd Amendment to the US Constitution, ratified in 1951, defines the number of terms a person can be president. It officially limits an individual to being elected president no more than twice." And then Vanity writes, in all caps, "Is there any way in Trump's unholy leadership that Trump can defy this amendment and get a third term?" And then she concludes, "I know I have a simple mind compared to Professor Corey, but I want to know."

Donald Trump sure seems to think he can get around this guardrail as well, Corey. I don't think the 22nd Amendment is keeping you awake at night. I don't know that he's determined to get this third term, but I will say that there's so many instances where I would have been tempted several years ago, or even during the first term, to say, "No way." You know, and this is certainly one of them. I think it's very clear you can't you can't have three terms as president. But are there ways around it? You know, one thing that they've toyed with is the idea that he would run as J.D. Vance's vice president, and then J.D. Vance would resign. Would that work? Possibly.

The president hasn't shown an interest in it. But here's the the sad fact, that things that we thought were bedrock no longer are. And if you're in a dictatorship, if that succeeds, by the time we're we're talking about a third term, assuming he's still in good health, really everything is on the table. And and that is frightening, not necessarily because I think he would do it through the rule of law, although courts have surprised us before on the immunity case coming out of nowhere. Is there some magical argument, like what they've come up with in birthright citizenship, which we'll talk about next week, uh you know, something that I think is just crude and and and wildly out there to to justify this maybe I can't I just can't say no. And then let's not also forget the possibility that really he succeeds in crushing our democracy.

That's why the jury is still out on whether or not we're going to be in a democracy when we get to this next moment. And really the answer isn't dependent on what the text of the Constitution or an amendment says, or even what the court says, it's dependent on us and whether or not we succeed in defending our democracy. Well, your answer was a lot smarter than mine, Corey. I was just going to tell her God's in charge, and Trump's arteries are going to do what God wants Trump's arteries to do. But I'm sure he'll look really healthy 3 years from now.

>> [laughter] >> Professor, I thank you so much for everything. What what is the best way for our listeners to keep up with you and your brilliance the other 6 days of the week? Well, we love these questions. We can't respond to all of them, but we'll respond to some. You could write to me at [email protected]. And I'm reading these emails and taking questions and getting comments. Subscribe, of course, to The Oath and the Office podcast. You also can watch on YouTube and subscribe there. There's an Oath and the Office Substack, and you can find me also on Blue Sky as at at Democracy Prof. I'm John Fugelsang. I host the evening programming Primetime on SiriusXM Progress Channel 127. We're also a free podcast called the John Fugelsang podcast. And I'm on Substack and the socials. And my book is called Separation of Church and Hate. Professor Breitmeier, thank you. Every week I come here with snarky questions to cover up my cowering fear. And every week you talk me off a ledge with your

constitutional Jedi skills. Thank you for what you do. I would have thank Beowulf and Wendy and everyone who helps put the show together. Thank most of all you guys for listening and subscribing. Please keep on tuning in. Share these episodes and tell your friends about The Oath and the Office. Peace.