The Rule of Law on Trial (with CNN's Jake Tapper)

It's not my job to stand up for the Democratic position or the Republican position on the government >> agree the sky is blue. Yeah. But the truth is different. The truth is different and but but that's why it's important that we stand up when it's like look Brendan Carr with Brendan Carr did at the FCC he very clearly told local affiliates to stop carrying Jimmy Kimmel show and they followed suit because they need his approval for these lucrative ventures that they want to get it like that is stuff that we're supposed to be calling out and explaining as much as possible and the more that we're seen as not actually standing up for a party or an ideology and more just seen as we're just here to call balls and strikes sometimes that means you're going to be pissed off at us the better.

Welcome once again to the Oath and the Office podcast. I am Jonathan Fugel saying your humble manager here to bring on the star of the show the great constitutional law professor from Brown University author of the Oath and the Office as well as the Presidents and the People you've read them in time you've marveled at his words in the New York Times people of Earth make some noise for Professor Corey Brettschneider. Hello Professor. Hi Jonathan what a pleasure to be with you. We have a amazing show today. We'll be joined on the second half by our guest Jake Tapper of course of CNN anchor on CNN host of the lead with Jake Jake Tapper and it's going to be especially for this podcast of course we're focused on the question of a president's obligation to the oath to the law to preserve protect and defend the Constitution and so we're going to talk to him about an amazing case during the Obama administration when there was a real debate about whether or not terrorists could be tried at all in the United States and talk in particular about how the legacy of that

decision to try alleged terrorists and then convicted terrorists plays into the current well lawlessness that we're seeing now and of course we'll talk about posse comitatus and the restrictions on the use of the military the horrible ice >> stuff sexy stuff professor I'm here for it. Definitely. But I know you wanted to to to to talk about a story that's been engaging us both a horrific story and um Well before I get to that before I get to that because because I know that unscripted banter is very important for shows like this. We read that in the podcast manual. Yeah well I mean Corey and I are getting a lot of podcast coaching so this is this is the unscripted banter part of the podcast and I just want to congratulate you professor on the the insane ranking for this humble show on the Apple podcast under government. I mean well done Corey well done. Well thanks John and I'll throw it back to you. It's really this dynamic that I think people are turning into every week to talk about the reality and the horror of the attempted coup by Trump but also the hope in fighting back and that's really

inspiring people. It's true that we're we're number five our last episode was number five on the Apple podcast list with Malcolm Nance the amazing Malcolm Nance in the discussion about information that you don't want to miss. And then on our YouTube channel it's just blown up. It's in over 24,000 in 48 hours people watching it and then I can see the amount of people watching it in length. I hope you I hope when you go to the Ivy League Professor clubs you lord this over everybody. I hope like when you're walking around the gym like you're just strutting because I'm getting such great feedback and everyone loves what you do and and those commercials you made me do are really a hit too. Those are awesome. I'm really glad check them out they're on the YouTube they are amazing they involved a brilliant line about Stephen Miller's coffin which of course he sleeps in and you know my wife said uh when she was a kid she thought she developed a loophole for bragging, which is that if you said not to brag, then you could brag. But, this isn't bragging because it's really not about It is about the discussion, the importance of the

issues, and it's also about this audience that really cares to chime in. And so, that's really where I need to send the thanks and and the praise, which is people who really are caring about saving this democracy even at its arguably most vulnerable time. Well, uh I got to say, if everybody liked the multiple constitutional challenges of the first Trump administration, so I hope we're all really enjoying the multiple constitutional crises of the second. Uh this week, of course, we saw federal agents raiding a South Shore apartment building uh in Chicago, ICE agents zip-tying children, African-American citizens dragged from their apartments and put in one van, brown-skinned citizens who could possibly be immigrants dragged from their apartments and loaded into another.

And we're recording today uh we're we're recording this um at a week when we've seen a lot of judicial challenges against this White House, but this week began with South Carolina Circuit Judge Diane Goldstein's home burning to the ground after an explosion. Now, it's being investigated as an arson attack, but three people were taken to the hospital. And as you've said many times, Professor, the judicial branch has been one of the few institutions to partially hold and partially hold very steady. We just saw a Judge Emmerglick, a Trump appointed to the bench, just say that Trump's whole assessment of Portland as being war-ravaged was made in poor faith. And even under a legal standard giving the president great deference, the judge actually said, a Trump appointee, there's no basis for ignoring facts on the ground.

The judge ruled that this call-up of National Guard to Portland was based on a lie. And we just saw a judge in Boston say that this administration illegally targeted international students and arresting them for their very legal speech. That judge, William Young, said that non-citizens unequivocally have the same rights to free speech as US citizens, which you've said many times, and we just saw in Nevada a court said that the attorney there was unlawfully in her role. Right after the court in Jersey had a similar ruling against Alina Habba last month because this president is appointing unqualified loyalists as top prosecutors, and one of his flunkies in Virginia right away got an indictment of James Comey. That's not going anywhere. They know it's not going anywhere. It's just to bankrupt the man.

They're weaponizing the law to bankrupt his enemies. And finally, the Supreme Court said that Federal Reserve Governor Lisa Cook could keep her job for a little while, ruling against Trump. But last month it was this judge, Corey, Diane Goldstein. She ruled against this administration. She blocked the state of South Carolina from giving millions of voter data files to the DOJ, and she's gotten death threats ever since. And last week, Harmeet Dhillon of the Justice Department under Trump, condemned her ruling in a tweet. Early Sunday, the week began with Stephen Miller, the Gerbil Goebbels, puts up a threatening post to all far-left Democrat judges, accusing them of shielding left-wing terrorism. And within hours, Professor, Judges Good- Judge Goldstein's home was on fire.

Uh she was walking the beach when the fire started. Her husband was in the house with the kids and I think some grandkids. Um the the husband was rushed to the hospital. He jumped and broke his legs. Uh they still don't know if it was accidental or arson, but it's mere hours, Corey. So, this is the playing field we're in. I mean, we can still discuss over whether, you know, it's close to fascism or meets the definition of fascism, but children are being zip-tied and judges' houses are being burned to the ground. Uh we have so much to say about this. I mean, I'll begin with just a thought, which is that I have talked about the fact that the president's usurpation of the judicial branch and of the Congress, um uh and also the information war in which basically lies are being told as though they're truth that they what they amount to is a kind of self coup, the president trying to destroy these other branches.

And part of that self coup, the weapon that's being used is by talking about judges as enemies. And those who, um, fight back against unlawful action, do their job, judges are supposed to enforce the law after all, of them being accused, and this is part of the information war we talked about last week, that they're being accused of engaged in what Stephen Miller sometimes calls a judicial coup. Now, that language it couldn't but demonize these judges who I I and I can't just say it enough are trying to do their job of enforcing the law. Unlike the Supreme Court which has a lot of discretion for instance to overturn statutes, to overturn precedents, the job of lower court judges is to enforce the law as it exists. And they are in many of them, uh, and heroically pushing back against this administration, enforcing precedent, enforcing statutes. And then when the language about them is that they're somehow engaged in a coup, uh, you know, that it's it's it's creating an atmosphere in which we are attacking the very foundation of our legal system.

Now, what that we see this violence, I hate to say it, but it is part of the usurpation of the rule of law that we're seeing in so many different ways through ICE's illegal raids in my view, we're going to talk about that, through the use of the military illegally, uh, violating the Posse Comitatus Act. And then the general rhetoric is part of the the coup as well. Now, you know, on the one hand I want to just be honest because as maybe people who are we have a lot of new listeners to this podcast who have maybe heard me on Midas Touch or John C. Promoting your your your best-selling book on the selling book on The Daily Show. And you know, and they they might be wondering like, but you're using the language of coup, they're using the language of coup, isn't it all the same? And I see that. It is an information war. It is a an instance in which we're both but you know I I am going to defend these judges that they aren't engaged in a judicial coup.

Many of them as you just said including this judge were appointed by Donald Trump himself. And so they are just taking seriously their oath to preserve protect at the law the Constitution. And then to turn on those who are regarded as disloyal. You know Americans I want to go back to the title of the podcast because we do have a lot of new listeners that are streaming in. You know it it was very common before the founding of the of America the United States of America and the US Constitution as we now know it. After it was ratified during our founding to take it was before that to take oaths to a person to the leader to the the the the king.

Now what is the oath of the American people? >> Don't tell Pete Hegseth that's not how it's supposed to be cuz the generals >> That is what they're >> in that room do it. Pete Hegseth didn't. But let me just say what's obvious to long-term time listeners of this podcast. These judges take an oath to uphold the law the Constitution. The president does too as required the only oath actually written out word for word in article two. And yet you know what this person wants is is is loyalty to him. So the reason he thinks it's a judicial coup is because it's against him. And that's why that you know once we reason it out we can see that Stephen Miller and my arguments are not the same even though we're using the same word. I mean I think he's mimicking the argument that myself and many other uh law professors political scientists and lawyers are making that this is a a self-coup an attempt by the president to destroy the other branches. Oh very much so. Yeah and a very sloppy messy poorly executed one I might add. That's why it's going to be very important for people to take very detailed notes of where everybody stood on every one of these issues

because uh Corey this thing ends with the Lassie in Scarface. And and let me let me get into it by asking you about Chicago on two levels. I want to get to the National Guard issue and Governor Pritzker, who is who this guy is running for president harder than people who are really running hard for president. But first this this ICE raid. The governor has ordered investigation into this violent raid that had children zip tied screaming, crying parents, people injured. African-American citizens dragged from their beds and thrown with handcuffs in a van. Obviously I'm glad someone's trying to raise questions about this agency's legality and we have to have a national dialogue about their accountability before this starts going German. Now ICE says they're defending federal interests and they allege the local police interfered with a federal operation. So let me begin by asking, what are the constitutional limits on an agency like ICE when it comes to carrying out operations that really might violate state laws or or local authority?

I think the first thing to start with which is common sense and I haven't seen a lot of um rationality or or careful analysis in this debate in this sense that look, ICE has the right to exist. Nobody's doubting that that's a legal entity, that they have authority in immigration proceedings. But here's what they can't do. They can't and even though they can engage in some of what they are doing in in deportation for instance. They cannot violate the criminal law. You can't attack children and engage in child abuse. You can't without any cause or justification abuse or torture people.

So Well, you're not supposed to be able to violate due process either professor, but here we are. I mean that's that we're we're used to it now. That's right and there are fundamental rights to due process not just for citizens, but for persons. That doesn't mean that the rights of non-citizens are the same as the rights of citizens, but they certainly have rights of due process. They're rights of persons. They have rights of speech I should say, non-citizens, which is guaranteed by the First Amendment. So, as ICE comes in and and disregards, really at the urging of this administration, engages in what looks more like thuggery than law enforcement, we've got to start to push back. Now, what are the tools to do so?

We There are limits. So, there's something, for instance, called qualified immunity that we've talked about in the past that limits the ability of people who are wronged by ICE to bring a normal lawsuit against them. But, that can be stripped away, and there is legislation in Congress to suggest that. That's kind of That is part, I should say, of the recovery that we need is to There is no common sense argument for why an an official who abuses a citizen should not be subject to a lawsuit that they themselves are liable for. But, another thing that I'm trying to introduce into the national conversation is If they commit a crime crime, for instance, and I'll take an easy case. There are examples of off-duty ICE officers committing crimes.

They're arrested and prosecuted, full stop. But, even though there are There is deference to federal agencies and to law enforcement of some kind, if they're engaged in abuse of children, for instance, um of of of violence that is unjustified and unprovoked, of things that are worse than that, they certainly can be prosecuted. And what I'm not seeing is local prosecutors looking at some of these abuses for evidence of crimes. And my view is, and maybe this might This is controversial, that if they find them, they should bring those suits. Now, there are all sorts of political reasons for not doing don't want to be targeted by Trump. Of course, he'll call them opponents, enemies, as as he did when he was prosecuted by a local DA in Manhattan, successfully, I should say. But, that's the kind of thing we've got to start talking about. Is the criminal law being violated? And we've also got to talk about how to make it possible to sue these agents. I should say, too, qualified immunity is not absolute immunity. It doesn't prevent any of these lawsuits. So, starting to bring them, despite the limits of qualified

immunity, might also be way way to start to think about holding accountability. Long-term though, we've got to get rid of all the protections for law enforcement when they abuse power. Okay, so you there's about 700 things you just said there that I need to unpack and you're much more polite as a Ivy League professor than I'm going to be when I discuss these godless amoral punk ass coward thugs that are ICE. It cuz I get to say that you don't, Professor. No one No one can take my tenure away. So So I mean obviously are are you are you saying that that there's going to be prosecutors too intimidated by what's happened to Fani Willis, by what's happened to Tish James, by what happened to Jack Smith that prosecutors are going to be too intimidated to make their careers off of prosecuting these lawless thugs when we all know that this can't be sustained with only 1/3 of the population supporting it? I mean, these people operate like they're above the law and they do believe they are and this is how Hitler's secret police happened. Now you've written about

constitutional accountability for executive overreach, but there's got to be a lot of legal cases to be made that ICE agents could be criminally liable for these actions. I mean, if if no one's above the law including the president, then that same principle applies to ICE as a federal entity. There's no There's no constitutional basis for any idea that these cowardly thugs have any criminal immunity, right? Right, exactly.

Sorry, I said no, but I should have said yes emphatically. That that the the the the idea of presidential immunity is distinct to the office. The idea is that as the head of the um the sole sole representative of the entire American people, that really I mean, the arguments are absurd, but they really have to do with the president's importance. The president being too busy to be distracted by criminal prosecution. They are very very weak arguments and as we've talked about at length, I think they're ridiculous be subject to prosecution. But even as absurd as the Trump versus the United States ruling is and the idea of presidential immunity, exactly as you say, it does not extend to ICE agents, to to criminal immunity to those working for the government. So, you know, the vice president also doesn't have immunity under >> Oh, I know it. Oh, and I hope the vice president knows it come January 2021.

>> And Pence doesn't have it. And so you know, as we go down the chain you see none of them. All of these people could be prosecuted. But I think these cases have to start with the on the ground abuses and as crimes are taking place by ICE, local prosecutors should bring them and then they should start to go up the chain. I think what order who ordered this? And start by going after them for handcuffing Ross Baraka in Newark. Start right there. I I agree with everything, but we know ICE ICE are also there's this crazy thing, Corey.

These they lie and and are not punished for lying. They claim they were attacked by the local authorities after the raid and then footage showed that wasn't true. So, what are the constitutional dangers of federal agencies, again, with these our taxpayers, spreading deliberate lies, I'm not going to call it disinformation, but lies to justify unlawful detainment. I mean, if Congress will not act, what mechanisms exist, state or judicial, to hold ICE accountable? Is it just going to be local DAs? There are lawsuits, there are local DAs.

And then I think the realistic thing, because how do you build towards legislation that's going to undo so many of the needless protections that ICE now enjoys, for instance, qualified immunity. Those cameras that are out there, the citizens who are documenting all of this, the more we can have transparency of what's happening in these raids, the more that you can see the disregard of due process and even more basic human rights, the more we'll see the need for these pieces of legislation and the more actually there will be pressure on local government to act if there are crimes. And if there's child abuse for instance, that that is not legal in the United States. And we've got to see these prosecutions and then we've also got to see structural change and eventually we have to see accountability of the people who are ordering this lawlessness. You know, the framers worried about a standing army because they said the existence of a standing army would would be a danger internally. Would act as a kind of dangerous police force of the kind that we had seen from Britain shutting down the rights of individuals, not respecting even privacy in the home, which was such a big deal. I think about

the constitutional guarantee against forced quartering of soldiers. All of that was meant to protect a zone of of freedom, liberty. I was going to say privacy, but it's more than that. It's freedom from abuse of well, a federal police force, which we're now having, which we certainly didn't have and now is starting to act in in this frightening way shutting down our rights. And of course, it's the same thing that they worried about about the actual standing army that we do have, the military being used domestically. That that this is really one story, the abuse of ICE and the story of the military part of the administration's attempt to shut down our civil liberties by expanding and growing an aggressive and violent, I should say. This is the hard coup, not the soft coup that I've often talked about just in terms of legality. This is actually the use of of force by the government, by ICE, by the military.

That's exactly what the framers worried about and and yet we're seeing it on on a daily basis. >> We just saw this Oregon judge limit Trump's ability to nationalize the National Guard, but now he is apparently going to try to deploy the California Guard himself up there. And we now know he's ordering 400 members of the Texas National Guard for deployments to Illinois, Oregon, and other locations. Governor Pritzker tweeted, "We must now start calling this what it is, Trump's invasion. It started with federal agents, it will soon include deploying federalized members of the Illinois National Guard against our wishes, and it will now involve sending in another state's military troops." Governor Pritzker continued, and here's where it gets interesting. "I call on Governor Abbott to immediately withdraw any support for this decision and refuse to coordinate. There is no reason a president should send military troops into a sovereign state without their knowledge, consent, or cooperation."

Corey, I don't think Governor Abbott's going to come to his rescue because I think history has proven these guys only believe in states' rights when they're trying to defend white supremacy and racism. Where to begin? Let's start with the 1878 Posse Comitatus Act, your favorite, designed to prevent military use in civilian law enforcement. I know it's got a very complicated racial and historical legacy. You know, I do think that at different points when we're going through the daily news and we are seeing these deployments to Oregon, um, possibly, um, to Illinois, possibly elsewhere, that we've got to sort of dive in not just to the law but the history and sort of step take a step back and see what our tools are that we can use in fighting back. And yet, I think we've got to be honest. I wish I could tell you a story that in the 19th century the Posse Comitatus Act was passed to fight, you know, evil abuse of power. But it's a weird history and an unfortunate one, and I think we've got to be honest about it.

The Posse Comitatus Act, first of all, is a law passed by Congress during the Hayes administration. And what it says is that you can't use the military as a local police force, full stop. So, that's the good news. There are a couple of exceptions to that, for instance, the Insurrection Act. And the Trump administration, although I don't think it holds water, is claiming that it that they have the another exception is the right to protect federal buildings, which is an excuse to arrest people who are, they claim, without reason are threatening those federal buildings. That strikes me as BS. So, we've got to like but what is this thing? Why why does it exist? You hear about Posse Comitatus all the time. And the the story is that there was a proud use of the federal government and even the military to enforce federal rights in the election for instance of 1868.

Thousands of black Americans elected Ulysses Grant at the risk of death. They were being murdered by white terrorists throughout the country and so Grant, once he was president, um passed a series of laws called the Enforcement Acts that were used to have the federal government, partly the creation of the Department of Justice, but also in at points in extreme circumstances, the military to protect black Americans in particular in their political rights. Mhm. So, Posse Comitatus comes from a period in which the the reaction, the white supremacist reaction to Grant was in full effect that in 1876 when Hayes is elected, there is a kind of compromise, a horrible compromise, made by Republicans and Democrats, which is to abandon civil rights, to abandon reconstruction. And this law is part of it. It really is a restriction on the use of the military, uh originally intended to to stop civil rights enforcement, but here's the good news, as horrible a history as that is, we can use it to protect civil liberties today as much as it was used at one point to shut them down.

Right on. I mean, that's the thing if Trump's legal team uses this old statute selectively, ignoring it or invoking it depending on whatever serves his power, I mean, that's pretty much well, that's what they do with Christianity. I mean, I mean, we've seen presidents use the military domestically before, Eisenhower enforcing desegregation, right? But how do those examples clarify the intent of Posse Comitatus Act? I mean, you know, the the Oregon ruling has already limited Trump's federalization powers here. Look, I think that in cases of actual defiance of federal court orders for instance, which is what happened in Little Rock, uh in defiance of the most basic civil rights law and that's what was happening in Little Rock as the as the Supreme Court and lower courts were enforcing the equal protection clause again.

That that I think is uh, uh, a legitimate exception to posse comitatus that that the Insurrection Act in my mind does give the president that power. But here's what it doesn't give the president the power to do, and he hasn't Trump hasn't even invoked it because I think he knows it goes too far. To make a pretend story up about the idea that um, uh, a pretend story up about the idea that there's some threat, that there's some violence when there's not. I shout out to our listeners in Oregon. I've been hearing from some friends in Portland in particular who are going out and just showing videos of the ICE facility there. There is no violence. It really is a made-up thing. Okay, we got to take a quick break. This is The Oath and the Office. Welcome back to The Oath and the Office. I'm John Feigel saying, uh, Professor, I know we're getting uh, we're getting all keyed up to have Jake Tapper join us uh, very shortly. But the government shutdown is uh, continuing, uh, and it seems like it's working exactly as they wanted it to. Trump has publicly celebrated the shutdown as a way to drain the swamp, which many sane

people see as part of a broader plan to totally gut the government, to dismantle the administrative state, and to make sure that when the government finally reopens, there won't be much government left to reopen. Um, can can I start with this phrase the deep state? This is one of those code words that guys who, you know, spend way too much time uh, online alone use. What does that refer to in reality versus how it's being weaponized rhetorically by Trump and his allies? And how would a deep state have survived if Donald Trump had already been president for 4 years once before? Uh, it just seems like willful brainwashing they go along with. As much as I believe and talked in the last episode about why this shutdown might be the only lever that we can use against a president who threatens democracy, um, uh, there is a real danger in that. And this isn't uh, without risk. And one of the dangers is that Trump is going to use this moment, and in particular with his ally, long-term employee Russell Vought, to destroy what he calls the deep state.

What does that actually mean? It means those civil servants who are protected under the Pendleton Act or under independent agencies, under various protections that Congress has created to ensure that the law is enforced, that he's going to just get rid of them. That he'll use the moment to destroy the civil service that has taken literally decades, a century actually, more than a century to build up. I have to say because, you know, this sounds so abstract, the deep state and and civil servants. There is a guy who I think is dangerous at the moment. His name is Russell Vought. Yeah.

>> And what Russell Vought is devoted to is getting rid of government. And he is a kind of libertarian and adherent of the philosopher and economist Milton Friedman, who really believed that we should have almost no government. That things like providing for basic needs or health care or kids that need food, that all of that really should be left to private commerce. And that the free market would take care of everything. It's in my view not a sophisticated view. >> Just like it does on its own. You're right. Yeah.

And this individual, Russell Vought, is sophisticated. He's got a real knowledge of the law. And although he sounds a lot like Mosques, he's smarter. And he realizes that he might be able to use this moment to get rid of a lot of the civil service. And he's going to do a different thing, which is he's long believed that although the law prevents what's called impoundment, the president refusing to to spend funds and allocate funds as Congress has intended, this dual idea of getting rid of the civil service, spending funds as the president wants, is all an attempt to really claim pure executive power. And the shutdown is a primary moment for somebody like Vought. In fact, Trump retweeted uh something referring to Vought as the kind of Grim Reaper with, you know, this kind of right-wing laughter. And uh AI commercial show.

>> AI commercial. And yet, you know, that's what we're facing right now. That that this could be the moment in which the Russell Voughts and the Donald Trumps uh destroy the government that's charged with that protecting us. >> I consider this entire period we live in to just be porn for Satan, but that's just me. I mean, here's the thing, Professor. This shutdown has halted many government agencies, right? But not ICE. Right? Not ICE. The government's priorities are that the enforcement arms of government have to remain untouched. But programs that actually serve the public have to be frozen and defunded.

Corey, are there any constitutional limits to a president who is intentionally paralyzing our government to undermine civil service protections? Well, here's the problem, and I'm going to bring this up with Jake Tapper because one of the things I want to ask him about is the difference between the Supreme Court that we have now and the one that was operating during the Obama administration. And the answer, if we were in the Obama administration, is there a lot of protections against him. Impoundment is banned by law. The um uh the the the um creation and and protection of much of the civil servants are protected from firing without cause, from political firing. But what Russell Vought has figured out is at the same time, and I think this is, by the way, why he's not a libertarian, as you say, that he wants to a dangerous police force, a national police force, the the least liberal or libertarian thing that you could imagine. Uh he wants to get rid of the parts of government that he doesn't like, and that he believes are filled with uh his opponents. And the question

is, is the Supreme Court going to allow him, under the theory of the unitary executive, which our audience knows well, they very well might oppose approve, I should say, all of Vought's plans, even though it's in contradiction to many of the precedents that we've had in this country for decades and decades. I mean, so so when you look at previous moments, Corey, of of a famous executive overreach, right? I mean, Bush's post-9/11 powers. Uh Nixon and the Saturday Night Massacre. How how does this moment compare? I mean, it's very fair to say that we're in unchartered constitutional territory every day, right? I mean, this is this is not really a recurring American cycle, is it?

Well, you know, I think that part of what I argue, now out in paperback in The Presidents and the People, is that there are cycles. There are cycles in which we have presidents that really try to destroy the rule of law, to attack civil liberties, and then we have moments of coming back. And so as much as, you know, we really are emphasizing how dangerous the shutdown is, I also want to talk about the fact that we have recovered from moments before where presidents have attacked the rule of law or have tried to use the rule of law for their own purposes. The shutdown of dissent during Adams, the desire to build a federal government in Wilson's time, so-called progressivism that was not progressivism for white people.

That also is a moment that we had to recover from. So, the truth is that much of the development of the government and its functions that wound up serving, at least attempting to serve all, were were originally intended to to serve only white people. I think that's true certainly of Wilson's progressivism. So, we've had these horrific moments that we've recovered from before, and yes, we're going to see, I think, the destruction of important parts of the government and the build-up of dangerous parts like ICE and the military, but you know, I am always hopeful that we'll push back. And one of the reasons why I'm looking forward to the discussion with Jake Tapper is that it looks to a moment where things looked really bleak.

Uh the the Bush administration argued that there was a war-free zone in Guantanamo. >> Oh, yeah. Due process prevailed, and so it is a time of hope that we'll talk to him about as much as I'm going to press him on the danger to democracy now. Yeah, for some. I mean, yeah. I know lot lot lot of lot of folks got killed really fast by Bush, too. Oh, yeah. I would not and that is one thing we won't discount. No, Tapper's book is fascinating. I'm excited to talk about it with him because it really does I mean, I I I want to ask him about how it it does relate this war on terror story so much to how they are trying to dehumanize people they would like to kill without due process right now. So, Corey, let me let me close it out with this.

If ICE can raid and lock up Americans with no accountability and Trump can deploy troops wherever he wants against US states without any oversight and the government can shut down indefinitely so the government can dismantle the government, what what does this mean for the future of checks and balances? I I don't think they're going to be able to cancel an election next year and I think everything they do is getting people more and more excited to vote. Um I don't need the Democrats to have a leader. I can wait till after next year for that, but what is the next, you know, 13 months of checks and balances look like to get us to a safe election day?

You know, I I gave an interview for Midas Touch um which I I was happy to do and I think we have a lot of listeners maybe who heard that who are joining us now cuz I talked about what you and I are doing on this podcast. And um you know, I think if I had a message in the book, The Presidents and the People and on this podcast, it's that there are no checks and balances unless we the people demand them. And that's why we're doing this. Because in the midterms, in the next presidential election, we do have the ability to put people in this Congress who are going to hold this administration to account, who are going to make use for instance of the subpoena power hearings to create legislation that actually protects civil servants, that limits the qualified immunity of ICE. All of that is possible if we turn out, if we see this election as what it is, a referendum on democracy. So, are there checks and balances in the sense of the Supreme Court? I'm going to argue, as we talked to Jake Tapper, that no, many of the checks that were there before are gone with this Supreme Court that is essentially

acquiescing all of its power to this administration. But, elections, the midterms, the presidential election, those are moments where we can reclaim it. We've reclaimed it in the past and we'll reclaim it again. Right on. Okay, we got to take a quick break. When we come back, Jake Tapper joins us. This is The Oath and the Office. Welcome back to The Oath and the Office. I'm John Fugelsang. I'm Professor Breitmeier. We have a very special guest today. I think a lot of a a lot of your fans will know Mr. Jake Tapper from his work on on the TV, on on the CNN. But, this new book of his, it's it's it's quite fascinating.

It I I didn't think it would be so relevant. The book is called Race Against Terror and it really is about the question that we're asking throughout this podcast. Uh is there still a rule of law? Can we have a rule of law in the face of security threats, even terrorism? And the answers that we gave during the Obama administration and previously, how do they apply now if at all as we deal with a president who's trying to destroy the rule of law and destroy democracy? So, it's really my pleasure and honor to introduce to The Oath and the Office audience. Welcome to The Oath and the Office, Jake Tapper.

It's great to be here. I love oaths and I love offices. This is great for me. >> as listeners are going to hear, I was particularly excited to hear about this book and to read it and and to see the connections to the current assault on the rule of law. And I'm going to just jump right in. Of course, your book about Spin Ghoul deals with an instance of first alleged and then convicted terrorist who was dealt with through the legal system. And yet, at the time, there was a debate. Um this is during the Obama administration, during the uh, endless war, the war on terror, about whether or not that was even possible. And so, I think that's a an important entry point for, especially our listeners who are so concerned about the assault now on the rule of law, to think about a time in which there really was a debate about whether or not uh, an alleged uh, terrorist even before conviction could be dealt with through the legal system or or um, whether or not the rule of law was incapable of of dealing with it. So, can you just start by setting up the

story and in terms of the context of that debate? So, the story uh, starts on the deck of an Italian cruise ship in the Mediterranean Sea during the Arab Spring. Um, so many refugees have been fleeing Tunisia and Libya that the Italian southern islands, which are closer to Africa than they are to Rome, um, have become just overpopulated. So, the Italians are are putting refugees on these ships and taking them to a mainland where they'll go to a refugee camp. On one of these ships one day, uh, this gentleman walks over to an Italian Green Beret and asks for water. The Green Beret sees him and notices he has a bullet scar, asks him how he got it, and the guy says, "I'm I got it fighting Americans in Afghanistan. I'm I'm in Al-Qaeda. I don't belong with these refugees. I'm in Al-Qaeda."

And long story short, the Italians take him into custody, call the Americans, they say, "We have got this guy. He says he's killed Americans. Um, do you want him? Cuz we, you know, we can't hold him for long. He disrupted things on the ship. We can hold him for a little while, but like basically he's just a refugee to us." The Americans go over, listen to his Spin Ghul confess to his crimes, killing Americans in an ambush in Afghanistan, trying to blow up the US Embassy in Nigeria. And this is where the rule of law stuff comes in because it's it's the Obama era, so there's no Gitmo on the table.

The Italian Italians wouldn't have let it happen anyway. They're so mad at how the Americans are doing the global war on terror. Um, the only option the Americans have is to let him go free basically, which is not an option because the guy has said I want to kill as as many Americans as possible. This is my life's mission. Or bring him to the United States, which would require an incredibly comprehensive, difficult investigation and sleuthing and proving the case against this guy. And that's what the Americans do. And it is, as you note, incredibly controversial in 2011, 2012, 2013 to do this. Um not just among Republicans on Capitol Hill, but Democrats too. People are acting as if bringing any of these terrorists to the American mainland is like bringing Thanos to the American mainland. Like like he like that they're super villains. People are still very legitimately terrorized from 9/11 and they don't want these guys, whether it's Khalid Sheikh Mohammed in Gitmo or Spin Ghul.

But um this is what Obama wants and actually it's the only option these prosecutors and FBI agents have. It's either do it the way Obama wants to do it, which is the only way the Italians will let it happen, too, or let this you know, guy who's already killed Americans and wants to kill more free. So it becomes this incredible investigation. The sleuthing is what I found so fascinating about the case. But then it also becomes this demonstration of American ideals that we can do this.

And now Trump is following knowingly or unknowingly, Trump is now following in the in these Obama footsteps because he is trying to prosecute in Virginia a guy who would be the second foreign terrorist tried in a American criminal court for killing service members abroad, one of the Abby Gate conspiracy murderers. Well, I think it's an interesting irony in the Jafar case that a president who has been disregarding the rule of law in so many other instances is at least allowing, and I think it's an interesting question whether he even knows about this, but allowing the prosecution of um alleged terrorist to go forward through the court system. But I guess my big question and I think that that of many of the listeners is you know, the debate didn't end. It would be a great end of the story if the point of the book was that in American ideals and the rule of law prevailed and we now know that even the most dangerous terrorist can be that our legal system can handle it. It's not incapable. It doesn't collapse when we see

those who have committed evil acts. But yet even though there is this tradition now in the in the Department of Justice of allowing prosecution of alleged terrorist through courts of law, we're at the same time seeing so much an undermining of the rule of law and that's really what I want to ask you about in the denial of the idea that for instance there are free speech rights for non-citizens in the Khaliq case or in the Abrego Garcia case the claim that enemy nations under the legacy of the Enemy Aliens Act from 17 98 that there are no due process rights.

So it is true that in this one area there's a precedent that remains even during Trump. But what do you make of the fact I mean to my mind it's a story of the at the time vindication of the rule of law, but now increasingly that debate is back and that there is this idea that we're not capable of prosecuting forget about terrorist. I mean even non-citizens who are who are you know, have connections to to nations that we that Trump anyway considers enemies. So so what do you make of the fact that the debate debate is back and that despite this one example that the Trump administration is so often going the way of trying to really undermine or disregard the legal system. Does that sound too harsh to you? Do you No. Okay.

I I I I think what's interesting it's it's tough to reconcile the fact that the Jafar is being tried in criminal court with what is the common prevailing thought about Trump's regard to these issues. Um I mean cuz look, let's be frank. If Trump wanted to uh ship Jafar from Pakistan where he was picked up to Guantanamo and just keep him there forever, I don't know that anyone would stop him other than the courts. Congress Congress wouldn't uh intervene. Maybe the courts would, but like at the same time I'm kind of inclined to think that this court this is US Supreme Court ultimately would be inclined to defer to a president's executive powers when it comes to the war on terror uh and such. But he didn't do it.

Um I had uh Sebastian Gorka come on the show to ask him about this cuz I thought it was so interesting. I honestly don't know uh if this is a victory for rule of law and the idea that we should live our ideals etc. or we have just kind of landed in this consensus view of the best way to deal with foreign terrorists. But because in the book, I mean when in the first Trump term when Jeff Sessions hears about Spin Ghul and at this point Spin Ghul's in the US um it's 2017 so he's about to be tried.

Uh he's not happy about it. And there's another case of another foreign terrorist. And Jeff Sessions does not want to bring him to the United States for trial. He doesn't want to do that. But he doesn't stop the case. But now we have Pam Bondi Attorney General Bondi. I don't know if she knows that this was controversial back in 2012, 13, 14 or not. Either way, I take it as a evolution in society that we're not freaking out that this guy is in a jail cell in Alexandria because Right. he's not going to escape, you know? I mean not going to wood. But like you know, this isn't like a threat to us. He'll be tried and I no doubt convicted. Now, on the other hand, um I I I guess the the short answer on that one is I don't know how much credit to give them or just maybe just the evolution of society that we're no longer scared out of our wits every time a terrorist sets foot on American soil in in chains, you know, that and we were 10, 15, 20 years ago.

On the other hand, one of the heroes in my book is a guy named George Toskas, who was on the National Security Desk of the Justice Department. He was the gauntlet. He was the tough inquisitor. He was the one that the assistant US attorneys had to get through before the Spin Bool extradition would be approved, before the Spin Bool indictment would be submitted to a grand jury, etc. He was the toughest guy like it was like once you got Toskas, the Attorney General and the President, that was that was just cake. Like that was that was not a problem. You get it through Toskas cuz he'd been there since '93. He'd experienced all sorts of disappointments with confessions being thrown out and the like and he was he was a hard ass. And I should note has never talked to me, has never communicated with me, did not help me on my book at all. Like I'm not I'm not pleased with his respect for journalism, but I do know enough about him to know he played this important role in our national national security apparatus and I'm a journalist, but I'm also an American and I also don't want to see people go killed by terrorists and I'm

glad he was there. But he's not there anymore because he signed the warrant for the Mar-a-Lago search. So when the Justice Department when Pam Bondi came in, Toskas was sidelined. And he'll be his last day at the Justice Department is coming any day. And this is a pattern. We saw this a few days ago with the guy prosecuting Jafar at the Eastern District of Virginia Virginia. He is he has been fired because some mega persons alleged something about him in the Comey indictment, blah blah blah.

And he's he's gone. So I don't even remotely understand what's going on and in terms of the oath, the oath to protect the American people, I I don't know. Oh, they did. I I'd like to jump in with a question, Professor, if I could. Um Sure. Jake, it's fascinating going through the book and seeing how how current it all feels and how there really was a sense among some in government at the time that somehow giving Ghoul a trial would legitimize him, that that justice itself could be seen as a sign of weakness. And now that we're in this period of extrajudicial killings of foreign civilians on boats with no evidence of guilt, I couldn't believe how relevant this all began to feel. This book captures a very specific moral dilemma.

Whether the state should pursue justice through law or through vengeance, through indefinite detention. And it seems like the central tension was whether to try Spin Ghoul in the US courtroom or to treat him as this phrase that we got used to, an enemy combatant. Right. Because when you you're not following the Geneva Convention, you don't have to say prisoner of war. And and I wanted to ask, would you know, one could argue that once we accepted enemy combatant status for some people, do you think it became easier to apply that kind of extrajudicial thinking elsewhere? I mean, is that one of the legacies of the war on terror?

I think if you're talking about the the labeling of Trenda Araqua as narco-terrorists, Mhm. my general view on that is anytime a president gets a shiny new executive toy, the next president takes it someplace it wasn't intended, which is why these toys are always problematic. And I remember asking I think it was Dennis McDonough, but I I think I remember asking on air about his, yeah, how much Obama used drones. And I said something along the lines of, well, okay, so you're confident that Obama will only use them well, but what about President Sarah Palin? Right.

>> Um so, I mean, I think that what we're seeing with the extrajudicial use of killing alleged narco-terrorists with no uh, criminal conviction, no due process, etc. is a legacy of that. It's >> Yeah. Obama increases drone warfare by a hundredfold over Bush, nobody says boo. Obama does this in Yemen, then Trump does I mean, it's just like every time >> is it but the the use of language as well, the the >> Yes. Look, yeah. by going to the yeah, by enemy combatants He says he calls them a terrorist. Or terrorist, He's using he's invoking the language against terrorists that that have that has been used so loosely with our legislative branch just completely AWOL with a few exceptions, uh, you know, like uh, uh, Tim Kaine and Tom Massie and people who have been pushing with Rand Paul, people in pushing like for we actually are the ones that can control war on uh, declare war, not presidents, and it's up to us.

Why have we completely just like handed this over to the president? But beyond that, that's what I think it's just uh, we're all, you know, every president since 2002 has just been using or 2001 has just been using this authority however they want. Like nobody when they passed it in 2001, nobody's thinking, "Oh, this is going to be used to go after alleged narco-terrorists in uh, in the Atlantic Ocean, but here we are." And like, you know, it's just it's just it just that's that's how it happens. That's one of the justify torture. That's well, right, but and that's um, look, I mean, I think Obama closed the black sites, but he didn't close Gitmo. And at the end of the day, um, presidents when they're given a power, they don't give it back. I think too in in in the case of Obama that as much as the the rule of law was used in this case that you were focused on, there is of course and you you alluded to this, a drone strike case in which a family member brings uh, legal action saying that due process wasn't granted

in the case of drone strikes and Obama doesn't agree to litigate that in court, they resist. And so there are these moments and drone strikes are a big one where the military power at least is still an exception. The worry is that now those exceptions have just become the rule and your your example of the rule of law is really the exception. It's one and I had a question about that just going back to your the the question about the the attorneys in this administration. I mean as and and and you've already raised this issue, but as we see one of the real threats to the rule of law of course is that civil servants including members of the Department of Justice are being fired who are just not loyal. So we're not we're not seeing people who are there because of their skill. Now these cases are hard to prosecute.

>> And impossible. They get thrown out of court all the time. So in in the case of Jafar, you know, this ongoing case, as you see the Department of Justice stripped of really quality lawyers and of course many of the best lawyers go used to go into the Department of Justice. I'm not sure that's going to be true going forward. Is even this exception this I'd call it a kind of vestige or remnant of the rule of law in in in and a kind of victory of the rule of law over uh the raw power. Um I is it even going to be possible without lawyers and prosecutors who can bring these cases successfully?

My worry is that if this case for instance goes south that the there might be a realization that the dominant move of um denying due process Right. might become universal rather than, you know, not fully not fully there. I think we're pretty close by the way. It's so dominant. You look at the the moves of ICE, the use of the military, and then the use of this Enemy Aliens Act. I mean when you add it all up, there is a kind of general disregard of this administration for the rule of law. Now we have a vestige, a remnant of the Obama administration that is the rule of law, but But it's unsuccessful because of the denial of expertise, is there going to be anything at all left? Well, I I I I do want to give a shout out to the judicial branch because I mean, there are a lot of judges out there, not just Obama and Biden judges, but Bush judges and Reagan judges and even Trump judges. That's right.

>> that are there saying, "No, you can't do this. No, you can't do that. No, you can't, you know." So, that is happening. There is that degree of resistance to abrogating these values and standards that we hold dear. I am worried um to the degree that, you know, I don't share a lot of opinions as a newsman, but but but I to the point that I have said on TV and I wrote an essay for the Atlantic like I am these are these decisions are making us less safe without question. This expertise Uh and again, I don't these not are these are not friends of mine. There's no cocktail parties. There's no like whatever conspiracy theories people have about DC journalists like I don't know any of these people. I just know their reputations and I know their track record and I know you want, you know, you as Nicholson said even though he's the bad guy, you want them on that wall.

You need them on that wall. You need these guys making sure that these cases are airtight. George Tosches tried to prosecute during the first Bush administration, George W. Bush. Um these these four, I think, Hutu murderers who killed two Intel executives in like Rwanda in the '90s and the confessions were thrown out by a judge because they'd been interrogated by Rwandan's from the rival Tutsi tribe and and I think it was a woman she did the judge said, "No, you can't admit." And they're now free men in Australia. And that almost happened again in 2010 with the Galani trial. Galani was the first Gitmo detainee tried in American court. He was tried for his participation in the 1998 uh embassy bombings and the name of the chief witness against him had come from his of Gulani's time with the CIA and the judge threw out not just the what Gulani said, but even the exist the

testimony of this one witness and Gulani was acquitted of 284 out of 285 charges and he ended up going to prison for that one charge which I got to believe the jury knew what they were doing, but it was a terrifying uh sign for I mean that's that was one of the reasons that the Spin Ghul case was also so difficult because people were like, "Oh my god, you're going to bring him here and he's going to be acquitted and then he's going to be blowing up people at Starbucks in Manhattan." And so the all of this is just to say these are not slam-dunk cases because a lot of times you're dealing with uh allies that use torture or the CIA was involved or this or that and it's very complicated cases. These guys in my book did it by the book and I didn't write this book as a love letter to a functioning government and a functioning judicial process, but it is that. I mean it is systems the FBI and the army and the and the US attorney's office everybody working together even when they disagree. Uh it is about a functioning

government. I don't know the political beliefs of any of these people. Honestly, uh I tend to think prosecutors are probably Republican, but I have no idea. I mean if it was a slam-dunk case then Gitmo would have been empty in all those cases. But I I got to ask what did you I'm dying to know what you learned about the military officials or government lawyers who actually really wanted to follow due process here and and how much resistance they actually faced from politicians? Well, I think I think one of the issues in the early years of the Afghanistan and Iraq war is that there was no functioning system uh or for, you know, okay, then no I don't think anybody had thought in terms of uh and then we we need to have a way to bring these people to justice. Right.

Like I don't think to 2011 would have uh been tried. I think he would have just been sent to Gitmo. And let me also say I think he would have been freed by now. Because what would have happened is he would have been sent to Gitmo, he would have been there for several years, and then some JAG would have argued, "You have no evidence against this guy except his confession in Italy. Who cares? Let him go." And then he would have been let go, he would have been sent to Saudi Arabia or Oman or Niger or wherever.

And he probably would have gone and killed a bunch of Americans. That's because that's that was what he wanted to do. So, in a way, I mean, this is all theoretical. I can't prove any of this. But just watching how everything has unfolded since 2001 I believe and I was you know, I I just believe that the way Obama did it when it came to trying him in criminal court actually guaranteed he would be locked away for the rest of his life and would never harm another American. And I don't know, and and trying to legitimately be as agnostic as possible and and believe that Bush and Cheney and Rumsfeld, they all were just trying to protect the country. Like giving them every benefit of every doubt I don't think that their way would have worked because I think Spin Ghoul would have been freed by now. Because there wouldn't have been the evidence that the prosecutors uh acquired.

>> It would have been I've got to ask you Jake about a kind of big picture question that you alluded to and then we're talking about the Supreme Court a lot on this podcast in depths and the what's known as the shadow docket or emergency orders disregarding precedent. So, that was a very different Supreme Court in the background, of course, during the war on terror. And although they had bad moments, they had good ones as well. For instance, they rejected the argument that Guantanamo Bay was a law-free zone that had no due process within it. If you remember those arguments that the Bush administration was was making, it was similar to the use of the Enemy Aliens Act, for instance, and the and the attempt to really strip away legal processes altogether. Now, the court pushed back in important moments in Hamdan and other cases. I mean, what about now? If the administration were to, for instance, if this case were to go wrong, partly because of the failure of expertise, and the administration were to latch onto it and to start to say, "No more.

We're not going to have legal cases for terrorists." And you could imagine that combined with Trump's rhetoric and and aggression, what do you see the Supreme Court doing in the judiciary? Now, lower courts, as as you rightly said, and we've been talking about the heroic actions of many lower court judges, might initially push back, but my worry is that ultimately, if we revisit this question of terrorism in the law-free zone or something like it, some version, that this court might say something very different. I mean, are you more optimistic about this court, given how different it is in makeup?

I don't know. I don't know. I don't know how I feel about it. I I I could see I mean, I tend to think that uh President Trump's legal team uh is not They're not a lot of Ted Olsons in that in that crew, right? Um uh so, I I tend to think that somebody would be able to make a a superior argument of um we can try these guys in criminal courts. More than 600 terrorists have been sentenced. I mean, when it comes to military commissions versus uh criminal courts, criminal courts are just much more efficient. The precedents are there. The courts know what they're doing. and I think two people have been tried in military commissions, and one of them partly the something was thrown out.

There've been like eight or nine plea agreements, but it is sclerotic. It is a slow, painful, awful process. Some of the Some of the bad guys in my book are only now starting to be tried in their military commissions. The reason that that the attorneys had heard about Spin Ghoul is because of terrorists that had been picked up and were at Guantanamo and were, you know, interrogated and such and had talked about Spin Ghoul and others. So, that's that I mean, that's why they'd heard of him.

But, I don't I don't know. I have no I like I look at I I mean, I know how Alito and Thomas would vote, right? But, and I know how the three Democratic-appointed justices would vote. I don't know like I there is part of me that looks at the rulings of Gorsuch and Amy Coney Barrett and Roberts and thinks I don't know what they would do. I I they they might They I mean, there's 20-plus years of experience that shows that trying these guys in criminal court actually is more efficient. And there are so many I mean, the argument that can be made by the people fighting to keep him I mean, this theoretical case where Jafar is about to be sent to Gitmo.

Um the people fighting to keep him in criminal court system would be able to say like, "Your system doesn't work. Uh you have not been able to bring the military commissions have not been successful, and so many people have been let go from Gitmo because there isn't evidence, and then they they're picked up on the battlefield like a 2 years later. I mean, like right you know, Spin Ghoul's locked up forever. Like, he's he's never going to hurt anyone. I don't know how an Amy Coney Barrett would feel about that. Um especially because I don't see the Ted Olsens making a compelling argument. I see them working with like Neil Katyal and and others to stand up for what you stand up for.

Thank you so much for joining us Shay. Before I I let you go, I just I just want to applaud you for such a gripping story about what happens when when fear can override fact and it's a this book is really about how conflating terms like terrorism and crime and war and have enormous policy consequences. And I just like to ask you going forward, how should the press and the public think about the difference between those words terrorism, crime and war. It seems like a pretty hot discussion we should be having right now. People are throwing around the word word terrorist a lot. Um uh people like Stephen Miller are using the word terrorist a lot. And uh I mean I would I would agree that the political violence we saw against uh Charlie Kirk or whatever.

That's I mean that's an act of terror. That's that's rooted in Sure. uh in in in ideological differences and it's unacceptable violence. But I I just I'd be careful of people throwing around the word terror especially when they're talking about people who are not actually trying to kill Americans. Like Yes. >> uh that seems like a very Yeah. I don't listen closely when people throw cuz the word cuz the word has an actual meaning and it's very vital for people who are trying to protect us that we not conflate somebody who is actually inspired by ISIS or al-Qaeda or whatever with somebody who is not violent and motivated by political differences.

I do have one last question that's on this point and and I'm glad that you raised it. I mean, what what as you're watching and as a journalist, somebody who interviewed President Trump just recently on an edition >> Well, ish. It was a text. I sent him three I sent I sent him three texts. Look, the guy won't give me an interview since I asked him tough questions in 2016. So, I'm it's a beggars can't be choosers situation. But he's You know, I sent texts to people all the time cuz I'm on I can't >> Yeah. I can't post on social media without like everything becoming a news story. So, like I send a lot of texts.

>> coverage because of the way he conducted the interview than the interview itself. >> had I wish he had done it in person. I wish he done it on the phone. I wish he but like Yeah, me too. >> The problem is he won't give me an interview. He won't give CNN an interview. And anyway, so I just >> mean, that's related to my question, which is how do I mean, how are you, I guess, going forward going to deal with a president who it's partly exaggeration, you know, by this admin by not just the president, but also his administration generally using words like terrorism where they don't apply. And then, of course, it's also willfully lying and and misleading. So, how do you, you know, journalism is all about truth, but in a kind of world in which the president has a willful disregard, I think, is a polite way to put it of the truth.

You know, how do you how do you cover it? How do you deal with it? Is it worth interviewing him? Is it just constant fact-checking that we need and still dialogue or or are we just past that? I think it's worth interviewing him. I would I wish that he would subject himself to my questions in person and not, you know, by text. But again, you know, that wasn't like a planned thing, you know. I was I you know, what happens if Hamas doesn't agree to step down? Like that was what I said, you know, and he was and he wrote back. You know, so whatever.

You know, but I do that all the time with all sorts of friends and and sources and politicians. And he just happened to write back. Um I think we just have to call balls and strikes. You when things are not true, they're not true. I I think that there is a there is a temptation among journalists. Uh it's never fun being out there on journalist island not making any friends on the right or the left. And and I think that that uh I think we have to be sure that we're clear-eyed about just covering things fact like for instance the government shutdown like we just call what the facts are and who's doing what like and we just have to just be neutral arbiters like government shutdowns happen and this is what they want and this is what they're saying and here's the truth and here's the facts and like but I'm not taking a position on the shutdown, you know, just like trying to explain what both sides are coming from trying to explain who's telling the truth, what the truth is, reaching out to people uh on the left and the right to find out well when you say this, what do you mean? Mhm. And trying to be as neutral uh

as possible when it comes to things that are that we don't have to stand up for like it's not my job to stand up for the Democratic position or the Republican position on the government shutdown. >> agree the sky is blue. Yeah. But the truth is different. >> But the truth is different and but but that's why it's important that we stand up when it's like look, Brendan Carr what Brendan Carr did at the FCC, he very clearly told local affiliates to stop carrying Jimmy Kimmel show and they followed suit because they need his approval for these uh lucrative ventures that they want to get it like that is stuff that we're supposed to be calling out and explaining as much as possible.

And the more that we're seen as not actually standing up for a party or an ideology and more just seen as we're just here to call balls and strikes, sometimes that means you're going to be pissed off at us the better. I think. That's my That's how I do it anyway. I don't know who knows how much time I have left. >> course there's a difference between truth and the idea of a sort of extreme neutrality where you just, you know, say both two guys are equal. >> No, no, no, no, no. No, but that's I mean look right, exactly. Like facts are facts and you know, we don't have to pretend that they're not. Um but by the same token, uh we need to be neutral arbiters cuz some like not all of the disputes are you know, between like Trump's not wrong about everything and Democrats aren't right about everything and just like that's just not the world we live in and to for for journalists I'm saying, for journalists to take a side because we want to feel like well we're we're with this team or Trump

is mean to journalists, therefore I have to oppose everything he does and says, that's not the job. But you would agree the job though is to question authority. >> Yes, all authority, 100% 100% all authority. Yes, look I mean those weren't super tough questions that I text No, not at all. But but I mean I was I just asked three questions about the the process and one question about the government shutdown. Again, like Yeah. This is I'm not submitting this for an award. It was This was just like >> it's a great anecdote.

>> sitting on my couch watching the Phillies lose and like sending texts to the president. That's you know, and he happened to and he happened to write back. You know, that's all it was. But >> Instead of a bad interview, he gave you a great story. I don't know that it was it was slightly less painful than the Phillies loss, but I will say oh you're LA people out there, sorry. New York right here. New York. Oh, you're New York. Oh, okay. Oh, Matt, I'm so sorry. I'm sorry for your loss. It's why I'm wearing all black, sir. It's why I'm wearing all black. I appreciate it. I appreciate it. Anyway, um yes, but there is we do need to speak truth to power and we we can't but look I mean it was you'd have to go back and look at the interview I did with him in 2016, but it was it was this is how long ago it was. It was during the Trump University case and and the judge uh Judge Curiel was from Indiana, but he was Mexican-American and judge and Trump was trying to argue he couldn't do his job because he was Mexican. And and and was saying He's from Indiana and if you're saying he can't do the job because of his race, isn't that the definition of racism? And it took me like a hundred tries before I

got to there, but I got to there and it got some attention and I never got to interview him again. So I mean But I think that that's important. >> Congratulations. But that's important to like get to a point and call things out and You know Uh >> Yes. I agree. I can't I can't imagine a better discussion for a show as ours is about the oath and the office and the pledge that a president takes to preserve, protect, and defend the Constitution and the law. We of course talked about the question of whether or not there is a rule of law left and the inspiring story of how the rule of law can prevail even against in cases of terrorism and why it also is important to preserve that idea of the rule of law and to be careful about that use of the term terrorism and also we appreciate the discussion of thinking about truth and and the distinction from some kind of extreme form of political neutrality.

Thanks so much Thank you so much. Jake Tapper, thank you for this. >> And John, I really like this John, you said something recently about Christianity and I I'm not of your faith, but I found it very intriguing and very moving. I'd love to have Simon & Schuster send your office a copy of my book if that'd be okay. I think you'd be very interested in it. >> 100%. It's all about scripture and our politics and Christian nationalism but from a very pro Yeah. Scriptural viewpoint. >> Absolutely. 100%. Love to have you on to talk about it.

>> The main character is a Jewish guy. He's he's he's pretty he comes off pretty well in it. >> I think I'd like to read it. >> Yes. >> Thank you, sir. Thanks, guys. Thanks, Jake. Professor, it's always a pleasure to do the show with you and I want to thank everybody for subscribing, for for propelling this show to to the top five on all government podcasts on on Amazon. Corey, I'd call that a meteoric rise except meteors fall and it's a stupid expression, but congratulations. I mean, you I'm just so grateful. So, I want to remind everyone out there, please, we take your mail. Write to us. And Professor, what's the best way for our listeners to follow you and keep up with your brilliance the other six days of the week? Uh you can send me questions at [email protected].

We're gathering them. We answer them every few episodes. Uh and also, I want to just say shout-out to you, John, and to our discussion with Malcolm Nance. We have a lot of new listeners. If you haven't pushed that subscribe button, whether you're listening on one of our audio channels, wherever you get your podcast, on Apple or one of Spotify or one of the others or on YouTube watching us, push that subscribe button and keep joining us as we continue this fight for democracy.

>> I want to thank Wendy and the Oath and the Office and everyone who puts this together, all the people who slave over a hot oven to put this podcast together. Thank you, Wendy. I'm John Feigelston. You can hear me five nights of the week on SiriusXM Progress or the John Feigelston Podcast, free every day. The book is called Separation of Church and Hate. And Professor, thank you so much. It's really, really a pleasure to come here and get to pretend I'm smarter than I really am thanks to your constitutional brilliance. We'll see you next time on the Oath and the Office.