Trump’s Bad Week Is Democracy’s Opening

Welcome to another episode of The Oath and the Office. I am John Fugel sang so great to have you with us. Donald Trump's Freedom to fifty concert is collapsing. It looks like not really a patriotic celebration. Friends, It's like the last night at a bankrupt casino that's trying to pay their electric bill with expired Arby's coupons. And I'm here to announce that Professor Corey Bretschneider has pulled out of Donald Trump's Freedom two hundred fifty concerts. He will not be performing on stage, so now it's just going to be Vanilla Ice and the animatronic rat band from Chuck E. Cheese. Folks, please welcome the star of this podcast, the author of The Oath and the Office, my favorite IVY League political science Professor Corey Bretschneider.

Hello, sir, Thanks John. You know it's going to be doing my spoken word verse.

At the I was so excited, but I just I.

Had to pull out. And you know, one reason I'm pulling away from Donald Trump is because he is a sinking ship. And today I'm just so excited for this discussion because so often it's just looking bleak and how are we going to survive this today? It's really all about the you know, checks and balances, working judges, fighting back lawsuits, including one that I'm proud to have worked with, the group that brought it Democracy Forward, winning in court, Congress pushing back and so you know, this this nightmare that we've been living through, and I'd really call it that we're seeing some light at the end of the tunnel. So this really is an episode about hope and about constitutional resistance that works. That's not just principle.

I agree. I hope our listeners are ready for all of the relentless good news that's going to be. We're just going to be a big up on People Show for the next hour because let's talk about our tattered, torn and frade guardrails. Professor Donald Trump had this kind of Friday last week. This was like a Friday that usually you see for cars tuned villains who tie themselves to railroad tracks by accident. A bevy of federal judges looked at multiple schemes at the same time and just responded like exhausted toddler parents and said no. This included his white trash supervillain plans for the Kennedy Center, which we will get to, but I want to begin by talking about how these institutions might really be strong enough to withstand one person, because it's been like a stress test. We saw multiple federal judges step in simultaneously, and I wanted to start with the one point eight billion dollar slush fund to pay off white supremacists who beat cops. This was a taxpayer funded compensation program, a rewards program for January sixth terrorists and people in Donald Trump's orbit for him to just give our money to whomever wants. And obviously the shock was on Friday when Judge Leoni Brinkhema blocked this anti weaponization slush fund. Professor, I mean, I don't even know where to begin with this, Like, historically, are there examples of democratic leader creating financial mechanisms that disproportionately reward political supporters? Has this ever happened in this country before?

Oh, we certainly have had slush funds before and illegal operations. And as you know from talking to me, of one of the things I'm doing lately is hunting around the Nixon Library archives. And Nixon was famous for receiving illegal contributions, often called slush funds, but it was done in private, in the dark, hidden. They were embarrassed by it.

Yes, Mussolini had had the decency to do this under the table. I mean putin creates a shell company. They're just doing it.

Yeah, And I got to say, you know, slush funds usually when we talk about them, they are you know, let's say they're in the tens of thousands or hundreds of thousands, or an extremely large slush fund would be in the millions. But at one point eight billion dollars that's going to be used to reward political supporters and done in the open, and done, you know, as a result of a settlement in this bogus IRS lawsuit. And you know, this is about stopping one person, but it shows you the power of that one person that we're even talking about this, the ability to sort of take what was supposed to be a compensation fund within the Department of Justice and then reorient it and let's just say what it was meant to do to pay political.

Supporters, Yeah, for engaging in insurrection.

I mean, was it a compensation fund like that?

Yeah?

This is for people who gave guilty please or are found guilty by juries this was a political reward system. I mean, the founders were very suspicious of patronage systems, weren't they, Professor like a fund controlled by the executive that can give huge sums of money secretly to people for politically defined reasons.

Yeah, some I would say some of this definitely was anticipated by those who are arguing about the Constitution for and against at the ratification moment. And I often talk not just about Hamilton and Madison, those who were for ratification, but the anti federalists whore opposed to it, and they're certainly relevant here because part of what they warned about is, you know, they anticipated the possibility that we now have of a criminal president, and this is what they said, Look, that person is going to be able to use their powers that are supposedly benign and for good to destroy the country, to engage in more crime. And one of the main things they worried about was the pardon power. And that's certainly relevant here because the January sixth insurrectionists, of course, the you know, well more than a thousand of them that were prosecuted by the Department of Justice during Biden were pardoned basically all of them, and now he's doubling down. This is part of the same story by creating this slush fund to pay them, and so people who are in the midst of the insurrection, in the midst of the attempted coup, like you know, the Proud Boys leaders are signing up and say, you know, hey, hey, give me some money, not just free me as a result of the pardon. And you know, so, I guess what I would say, just to answer your question, the anti federal has definitely anticipated the pardon power. Did they think about a one point eight billion dollar slush fund that I think was even too far fetched for anybody found.

Imagine, let's go back to what's become one of our favorite themes, Professor to cover on this humble little pod, which is that Congress traditionally controls appropriations. Again, they're supposed to do the funding for things like wars or bribes. I mean, a president creates a mechanism to direct billions of dollars with no congressional oversight that the Constitution has led us to expect.

Yeah, and this is where the story. You know, we said we're going to be hopeful, and now we can get hopeful pretty fast because a group called Democracy Forward. Who are the group that represented me and my cohort in the terriiff's case, and I was proud to work with them. They're a group that really has been formed to fight Trump and his abuses. On behalf of several litigants said, just what you said, you know, what about the separation of powers and can you just can a president just unilaterally take money that was allocated by Congress for one purpose? I guarantee you they didn't allocate it for the purpose of rewarding your political allies and insurrections and just diverted into it, as you said, as we keep rightly calling it a slush fund. They brought claims to saying this was arbitrary and capricious. Government action by the administration has to have some reason for it. It can be arbitrary. That's a requirement of a statute that really creates the administrative state, and you know, these kind of basic claims about how government is supposed to work. They also brought a First Amendment claim saying, you know, basically, it can't just redirect money to reward your allies and get them to pay them basically to attack your opponents, right, which is what this money, what this slush fund was meant to do. So all of those arguments did result in what you know, was looking pretty clearly like a victory in federal court. And that's part of the great story here that eventually, did you know, as you said in the beginning, lead them to back.

Down, Professor, One of the great lessons and themes you have taught me ever since I first became your padawan long ago, was this this notion that democracies don't usually collapse overnight. Democracies weaken through these tiny little acts that normalize favoritism and hierarchies. Does this fit that pattern.

Yeah. I mean, if you look at how dictatorship and oligarchy were, it's you take money and you reward you know, you don't serve the general public, you don't follow the law, you just reward your cronies. And look at what he was doing here. You know, when he said, way back in the first term, proud boys, you know, stand by and stand down. He was sort of commanding this private army. And then when we watched the proud Boys and the oathkeepers and his supporters attack the capital on January sixth, that obviously wasn't an active democracy. It was an active dictatorship. And now you know, if you really want to solidify that bond between the insurrectionists and your private army, essentially you have to reward them because the more that you back off and they look like criminals, you've abandoned them, which essentially had done for a while the worst it is. So the pardon was the first step, but now it's money. You know, this is real salary to engage in insurrection. That was what he was trying to do. And so the courts stepping in here, this wasn't just any moment to step in. It really was the moment in which the financial creation of this paramilitary force, you know, was about to be formed one point eight billion dollars, an incredible amount of money with no oversight, you know, to do what to set up his dictatorship.

It's like, we get the dumb leptocracies, Corey, we get the cacistocracy here. We couldn't get the shrewd fascists. We got the dopes. And now, you know, we talk a lot about all the different ways that individuals have resisted in the guardrails of the courts, but let's talk about the states, Corey, because as you know, before America's racists fell in love with Donald Trump, they loved something called states rights. And it was what the racist when I was growing up loved more than anything else. Oh, those states rights unless some states want to have things like legal weed or gun safety laws. Now we see the states are really getting creative on this slush fund. California, New York, Connecticut, and Jersey all discussing imposing a one hundred percent tax on any of their state residents who receive these slush fund payments. This is wild. This is what I think people want to see. This is what they want to see from Democrats in DC. This kind of ingenuity is this federalism functioning as intended professor. The states are being a counterweight when the federal government appears to be abusing power.

Look what your face with dictatorship. And that's what this fund was really trying to do, is to set up a fund again, to fund not in secret. You know, usually slush funds. For instance, the plumbers during Nixon era were paid through a slush fund, a secret fund to support a you know, secrets very small you know, we're talking like a few handfuls of.

Nixon had the decency that do this under the table, good god, hey, and.

With very little money compared to what we're talking about now. They were embarrassed, they knew it was illegal, and now you know, doing it in public. So how do you oppose it? Well, one thing that we've talked about is citizens fighting back. It's partly about the story about a heroic judge. That also is stories of this group, these citizens, some of whom, by the way, we're former Department of Justice employees and democracy forward. And then it also is creativity within state officials. And so Newsom in California talking about this tax in the New York twelfth congressional district, there's a primary candidate who's jumped in suggesting of tax in New York. And you know, these are not normal times, and these are not normal suggestions a tax on a specific recipient of federal money. And the abstract sounds like, you know, what are you doing? That's targeting individuals, But when you see how illegal the payment is, how it's also part of his scheme to undermine our democracy perfectly, you know, right, And you know, I think it's over ninety of the potential people who are going to get paid under this slush fund. We're in New York, so this isn't a small no way of port to be creative, you know. That's what this is all about. Fight back multiple fronts. You know where we can.

Well, the founder has built so many multiple layers of government partly because they distrust they distrusted concentrated power. I mean, if these states are trying to neutralize a correct federal program, doesn't that say our institutions are healthy. If the states are treating federal programs as potential threats requiring defensive action, that looks like the body protecting itself.

Look, we're all in this giant nightmare.

You know.

I call it a log exam. It's more like the kind of exam loxam you're taking a nightmare because it's all real. And what we're really asking is whether or not the system can survive and whether or not the pose the checks and balances really are checks imbalances. The anti federalists, by the way I keep bringing up I should say, their view was, no, we're not going to survive. The democracy is too weak to survive a criminal president. And don't ratify this constitution because it's going to collapse, and it's going to collapse, they argued, on behalf of a president who's going to use crime and the pardon power to collapse it. Now, you know that's not the end of the story. Madison and Hamilton and others said, no, we've designed this thing with multiple mechanisms to stop excess in power. One thing is Article three the courts, which we've been talking about in this lawsuit. And here's another thing, and Madison and Jefferson I mentioned particularly, we're interested in the tenth Amendment, the idea that there are powers reserved to the local and state governments to resist That later gets co opted by anti civil rights forces, but much earlier, Madison and Jefferson themselves use it because when John Adams tries to shut down free speech, what do they do, They say, well, you know, good luck and enforce that against us. We're going to use the states to fight back. We're not going to comply with demands to shut down political opponents. It was a very different time and a different set of circumstances. But these kind of proposals of using taxation on illegally gotten gains to destroy democracy, I think you know that's using the same techniques, the balance of power. And we're always in this moment in a battle between the anti federalists who say, no, we're not going to survive, and the federalists who said, here, we gave you all these gifts, all these separation of powers, this federalism, use it, fight back and win.

I can I stretch out a lot? Could I stretch out this chadenfreud a good news act a little bit longer?

I think, because we've got a great end too.

It got better on Friday. I mean, you'd think it couldn't get better. But then, and this is before Milli Vanilli dropped out to the concert, This before Milli Vanilli decided Donald Trump's concert was inauthentic. Before all that happened, It seems like last Friday, the week ended with the Judicial deciding to schedule a group project on humiliating Donald Trump. Because this is the most interesting story of all for me, Professor of Federal Judge decided to reopen scrutiny into his really weird, bizarre ten billion dollar IRS lawsuits settlement slash self pardon slash billion dollar money vacuum that he just set up. This was the case that he agreed to close this really sussed ten billion. He was suing his own government to have his lawyers pay him from our money, and then oh, I'm going to compromise and just make this two billion dollars for my henchmen. Right, this is fascinating, Corey. Thirty five retired federal judges. I've been waiting to ask you about this. Thirty five retired judges. I guess they're on a group chat. They got together, looked at this thing, and they were like, this is a fraud wrapped at a scam dressed as a lawsuit. And this thing was so cartoonishly crooked. It's like a late eighties Scooby Doo episode. Sue your own government, dismiss your own lawsuit, create your own mega account controlled by your own people. Sounds fictional, But thirty five retired federal judges asked for scrutiny, and a sitting federal judge just reopened that lawsuit that was only a pretense to get this whole scam going. Where to begin from a constitutional perspective? How extraordinary, crazy and batshit professor is that sequence of events?

But I love this. I loved starting with Scooby Doo, maybe before we.

Go to the law I haven't waited on this story. This is my favorite of all the stories.

I was just think, if you're in the Scooby Doo writer's room and somebody comes up with this scheme, you know, the mystery van being solved back you know to who.

But then you know, Trump is like, this is a brilliant idea, and Scooby says, ruddy rum and they throw Scoopy out the mystery van.

And Scooby went at it kind of. Scooby went along with everything, and that's what Trump wants to the Department of Justice to do. Scooby was always like, okay, it was up for anything.

I mean, I'm like, this is crazy. It seems like this judge is opening reopening this lawsuit that he only filed. Let's get it to mess with the system to create this corrupt slush fund. And now a judge is like, was there ever a genuine adversarial dispute? I mean, it's a constitutional question. Can the president effectively sue himself? They are calling bluff on his scam?

Yeah, and the answer is no. You know, just to get into the details, these former federal judges looked at this. They urge reopening the case, which looks like the judge is doing. And let me just say what the basic you know, we've given our Scooby Doo analogy at length. Yeah, let's get it here for those issues are here, because what's being claimed by these judges, and what I think eventually this federal judge will say is that this is what's known as a fraud on the court. And let me just lay that out. It doesn't mean, you know, that Trump cheated on his taxes or something like that, which is what it sounds like. It means that when you go into a court, which are going back to this idea of the separation of powers distinct from the executive branch, this is now Article three the courts, you can't lie and you have to have a genuine conflict. So this was set up as some sort of fake conflict, supposed conflict between the president and the irs, but of course it was anything. But it was really, you know, a scheme where different parts of the federal government were being pulled on by Trump in order to orchestrate a fake settlement of essentially Trump with himself that then could be turned into by the Department of Justice. This slush fund through you know, lots of supposed you know, arguments and conflict. There was no conflict here. There was a president and his minions organizing a way for Trump to take money and give it to his supporters. And this idea that there was some sort of lawsuit here that was settled. That's the fraud on the court.

And then that's what I believes. They finally believe in reparations, but only for terrorists. I'm sorry, professor, go ahead, so you know.

I know we're going to talk about this. But Trump, after all of these attacks and maneuvers, saw the writing on the wall and is now pulling out of this slush fund. But what was happening, I think, was that minimum that this judge was going to put the kibosh on all of this on the grounds that it was a fraud on the court and that you know, you have to have a real conflict. You can't by the way, the lawyers are going to be at issue here, and I'll talk about how this is even going to be ongoing even if Trump withdraws now that he's in the right go into court and lie. They can't play the role of we're having a conflict and really be secretly talking to each other and engaged in a conspiracy that is not allowed. And the sanctions could range from fines to disbarment. And my hope is that even though the Trump administration is going to say, oh, we change our mind, you know, no such fun, that this fraud on the court will be identified, called out, and that this judge will defend the Article three branch with sanctions on those who are involved in them. And you know, this involves everyone, the IRS, the Department of Justice, Trump himself, to the extent that Trump's family is involved in the IRS lawsuit self, which is originally about closing their.

Tax His two sons, Hunter and Hunter are both involved with us.

Yeah, yeah, you know, everybody I think is don't you mean.

But again, Corey, again, if they're robbing us, it's a kleptocracy, incompetent crooks, cacistocracy. Like they couldn't come content with just the bribe scheme. They had to build into this deal that the IRS was never allowed to scrutinize any of Donald Trump or his two hideous sons, Fredo and Shechem's business dealings. They're literally guilty of fraud, and the IRS is never allowed to investigate them for all they got Joe Greedy, They're just too stupid with their greed, Corey. If both sides of a dispute are ultimately controlled by the same person, that means there is no legitimacy to our legal process. And I think the hero here is these thirty five retired judges who I hope I use my retirement years so well. They used very strong language. How rare is it does he dozens of retired federal judges from very different ideological backgrounds feeling compelled to intervene. I mean, you keep using this phrase fraud on the court.

You know, it's hard to think of an instance where you see not just some petition but a very direct appeal to a judge that then it looks like works. And this language of fraud on the court is extreme, and you wouldn't say that, and it's not like in a normal lawsuit, even one that involves Trump and the Department of Justice, that's what you'd say, which is essentially that the whole thing is made up, that it's all a lie. So you know, it was an extreme circumstance. It was done again, they didn't even try to hide it. The fact that they did this all in public, you know, anybody who they were Essentially, you know, we can see with our own eyes what's happening. It's obvious, yes, and these judges had the willingness to say what was happening, to call it out, and you know that's why I think it was stopped. And you know, I don't know without them. We had the other lawsuit that I talked about, you know that that was progressing nicely, but this was really powerful. I will say these were in ordinary judges. Some of them have been, you know, in the forefront of speaking out against Trump and were Republican appointees too. Yeah, we were judges.

Yeah, But I mean, you know again, I mean, if Alien Cannon can do her corruption in public, these judges can call it out in public. And exactly one of the fascinating parts of this story here for me, and I know we have to have a break soon, but the Republican opposition to the slush fund appears to have increased after the judges intervened. We've talked a lot about the cowardice that's going on here with men and women who know what's being done is wrong, but they're too terrified of being primary and getting a one way ticket to Thomas Massey Island. It seems like it's easier for elected officials to oppose a corrupt president once courts establish legal legitimacy for that opposition. Right, this is about the spell breaks.

You know.

The theory is that political strongmen are all always invincible until institutions resist them publicly, and then the supporters suddenly discovered these magical limits they didn't know they had inside them before.

Right, it's a good way to describe it. You know, I want to praise Congress, and it looks like Republican members of Congress were willing to say I've had enough. And one of the reasons why Trump backed down was that he realized that he was getting into a confrontation not just with these two judges, with Article three courts, but with Congress as well. And so, you know, look, what's happening is the separation of powers is now working as it was supposed to. Think about it, think of all the levels that we've talked about, the States resisting with their threat of the taxation, the two court cases and the irs, and in the slush fund case itself being directly challenged courts were starting to say, I don't think so fraud on the court, that this is all a scam, that you're not really involved in a conflict. And then as that built, now you know, a little late to the game, but it still matters, Congress came in and said, look at all the evidence, Look what's happening. You know, law is a teacher, and it began to teach Congress what was happening. And I just believe it got not that they're heroic, these Republican members of Congress, but that they just got too embarrassed to go along with them. And after all, it is the Congress that allocates the money, so they were implicated. If they were silent, they would be complicitic.

And they all know how this movie ends, Corey. Let's be honest, they know this movie End's like the last Scena Scarface, right. I mean, I just want to thank you, professor, because I know we've covered a lot of ground here, but like America is so at risk of becoming numb to these stories that would have been front page constitutional crises back in the nineties, And I thank you Corey for not normalizing conduct that earlier generations would have called out as being crazy. We have to take a break or Wendy is going to beat us both up. But when we come back, let's talk a bit more about the bad news this president has received, namely, he doesn't get to name John F. Kennedy's things after himself. This is the Oath in the Office.

We'll be right back.

Welcome back to the Oath in the Office. I'm John Fiegel sang along with Professor Corey Bretschneider and Professor I found something else that you and I both have in common with Donald Trump. I know there's so little that we have in common with him, and we don't want to be haters. We always look for any signs of common ground to see, oh we we could be brothers. We see eye to why on this and I found a great area of common understanding with you and me and Trump. You and I didn't want to go to his firstborn son's wedding either, so that's something we share with the President.

Corey.

We can't stand being around that guy.

Well, you know Freda. I always protested that he was smart and that he was underappreciated, and that he was passed over, passed over. He complained to Mike Laws, Why did that that care?

Jesus you taking care of me?

That that's pretty good.

I shipped your ex off to be ambassador of Greece.

I wantn't more than that. I'm smart, smart, all.

Right, So first I apologize. I apologize to the ghost of the great John Cazal forever comparing you to this cocaine scarecrow of Donald Trump Junior Corey. The Kennedy Center humiliation. It's maybe the most Trump story imaginable. Imagine being so pathologically desperate for validation that you slap your name onto a national arts institution that was named by a griefing nation after a murdered president. Imagine your parents withholding that much love from your infant self. So late last week, Judge Christopher Cooper ruled against Trump's proposal to add his name to the Kennedy Center. He's got to do this because he knows no one's going to name anything after him once he's dead, so he's got to force it while he's alive. But the judge was, like, no Congress named it after President Kennedy. Trump, you don't get to rename American landmarks after yourself, like you're changing the WI fi password at mar A Lago. I kid, Trump doesn't know how to do that, but I mean Trump had an absolute meltdown afterwards. Corey. Why do institutions like a John Kennedy Center for Performing Arts matter in a democracy?

Well, I think they matter as a symbol, you know, And they matter too because of the way the symbol was created. It was an act of Congress meant to honor an assassinated president with a dignified center devoted to the arts, and of course John F. Kennedy lover of the arts. This was a way of in trining his legacy. And I think too the fact that it was done through the law that it was congressionally created, allocated, and the terms of how the Kennedy Center is supposed to operate, the obligation of the government to run it, all of that really are a tribute. You know. One thing that we do on this podcast, of course, is that you know, as listeners just heard, as we report the facts, we talk about why things are done, but we also talk about hope and we laugh and you know, this is laughable, the idea that this guy was trying to destroy this kind of perfect symbol of American democracy by just sticking his name on it Mount Rushmore too hard. But you know now, but we can, we can laugh about it.

But if Mount Rushmore was dedicated after Roosevelt and Lincoln and Jefferson and Washington were tragically murdered, and then he tried to put his face on it, it'd be just as ghost remind everyone. You know who should be really offended here as people who care about English grammar because they literally labeled the building the Donald J. Trump and the John F. Kennedy memorials. There's two us, there's two Thus, the Donald J. Trump and the John Kennedy.

Said grammar was never the strong respect for constitutional democracy.

You have written repeatedly about how authoritarian minded leaders always try to seek influence over not just the political institutions. Why are strong men so interested in universities and museums and arts centers and cultural centers.

You know, I think that government and democracy doesn't just have policies and laws and allocation and bills. It has symbols. And we define ourselves as a democracy through our symbols. The state literally expresses the ideas or speaks in favor of the ideas of democracy with its symbols. So the Kennedy Center was one way that you know, think of the national monuments on the mall, the Martin Luther King Memorial, a testament to the civil rights movement and the battles for democracy. The complexity of the Jefferson Memorial, you know, the acknowledgment of course of his heinous ownership of other human beings, but also the aspirations of Jefferson. You know, that's what we do with our public monuments.

America and debate with itself. That's what it is.

Yeah, and what is this guy? He is a want to be dictator and so the ball of him just trying to stamp his name with no congressional authorities in this awkward ungrammatical I like the way there's not there's not grammatically correct.

There's two those they can't even against English.

What a symbol you know that that he just wants to what he wants to rewrite history. That's the January sixth, that's.

The historical pattern though right with the leader allies. The strong man has to rewrite history. That's January sixth. That's putting his own name on the Kennedy set. I mean people, people imagine if he if he renamed it the Donald J. Trump Vietnam Veterans Memorial. Do you know what I'm saying? Like, maybe the people would have cared. I just think it's not I gotta say.

I just that image popped in my head of him taking his face and it's the Martin Luther King and Donald Trump. Oh yeah, Jefferson and Trump. And that's what I want to dictator does is Donald J.

Trump Black History? Yeah? Yeah, the Donald J. Trump Museum of the American Indian I mean, he'll do it for anything. I mean, And the president doesn't have any inherent authority to rename congressionally created institutions. We have to talk about that. It's not just that normally in a free society, people don't try to do personal branding on national institutions. He's not legally allowed to do this. What would be the constitutional danger, Professor Bretschneider, if presidents could just rename public landmarks and cultural institutions or federal facilities that Donald J. Trump Grand Canyon, Like, what would be the danger of this?

Well, I think that it goes to the heart of democracy that it's Congress that allocates the funds. It costs money to build these memorials. In the way that our system works is we don't just give us slush fund to the president to do whatever he wants with, whether it's to reward his insurrectionists or to build monuments to himself. And so each of these symbols that we've talked about, the Jefferson Memorial, the Kennedy Center, they are created through democratic decisions. And part of the democratic decision is also in what it's going to say. The point of it is, and that's why Congress is so important. And this is, you know, in some ways a small story, but it is a symbol of all of it because this center was created by Congress with very specific requirements that then this want to be dictator just came in and tried to literally ride out by sticking his name on it, by undermining those trustees who were trying to defend it, and you know, looks, thankfully like he's backing down because he's realized that, just as in that other story, that the courts are eventually going to stop him, and he doesn't want the headache. And it really is, unfortunately, the whole story of these two terms, his first term and this one, are the story of a struggle of authoritarianism versus democracy. And one reason why I feel like we're in a good mood today is because democracy this week looks like it's winning. Yeah.

Well, I mean, you're right. I mean, this whole thing with the Kennedy Center, it's not about a building. It's about whether a ruler can override congressional intent. Right. It would take an act of Congress to do this, because it took an Act of Congress to set it up in the first place.

I think it's that simple. You know, there are all these stories that Americans don't know the three branches of government. Some people are saying they're increasingly learning them.

President doesn't know them. Trump didn't know the three branches problem.

Yeah, and then when the president tries to stamp his name. But you know, we're we're heading, in real time a stress test of the Constitution. And you know, the other story that we were talking about was much more serious one.

Well, let's talk about something else.

Yeah, to fund insurrections. But this is symbolically serious and that it's the same question of whether or not we're going to allow him to destroy laws passed by Congress.

Let me bring up something that's symbolically serious and also just terrifying because it represents a predator punishing his adjudicated victim. Reports are that the Justice Department is going to open up an investigation into Ejen Carroll, the woman whom a jury found Donald Trump legally liable for sexual abusing and later defaming. He's lost a cup the trials with Egene on a couple of different cases. A full disclosure. I've known Egene Carol since I was very young. One of my first broadcast jobs was doing an NBC morning show with her in the nineties. She has made sixty eight million dollars in these lawsuits and he is still refusing to pay. And now that he is an adjudicated rapist and we can say that a civil jury found him liable for sexually abusing her, juries have already weighed the evidence, and he is opening up the government to try to say this woman somehow committed perjury and lied under oath because he's determined to get revenge, no matter how evil it makes him look in the history books.

It is amazing. You know that it's an ongoing story that we've been covering his attempt to prosecute his political opponents we saw it with James call me, and now we're seeing it here, and she embarrassed him. She got the facts out, as you know, we've we're very carefully saying, in adjudicated rapist in a civil suit who has found that she was credible and he was not, and he wants his revenge. Now here's the problem. The Attorney General of the United States also has been his personal lawyer working on the deal in this case, so you know, he's at least had the recognition that he better recuse himself. But the fact that the Department of Justice is looking into this, that they're considering it is itself a tragedy, and you know, part of the demise of that once great institution that it's being used as the personal, not even personal lawyer, personal attack dog of the President of the United States, not just against his enemies, but against his victims. That's part of the story here. I've got to ask you, John, since you do know Egene Carol, I mean, and I think listeners would be interested, and you've worked with her, tell us about her. What it was she like as a colleague of somebody.

Beld I mean, I've never I've only spent time with her in TV studios and radio and on My Serious XM show. But I mean, you know, she was quite a personality in television in the nineties, and I did a show on NBC called Real Life with her, and you know, everyone in New York media knew who she was. She was very, very well known. She's not the kind of person who had come out and create a false accusation. And technically, if you go through the rather grueling details of her allegations against Donald Trump, he did to her exactly what he's on tape bragging he likes to do to women, which is why this is such a chilling case, because I don't know. I mean, I know there's historical examples in this country of elected leaders who are trying to use government power against personal adversaries. And god knows, the media has been trying to paint eg and Carol as a kouk. You know, from the very beginning. They have to discredit the victim anyway they can, which is what people do in these scenarios. But I mean, I just thought of you right away because it's so dastardly, professor. I mean, what were the first constitutional questions that popped into your head? That an administration is investigating someone who successfully sued the president. It's so much more cartoonishly dumb than what they did.

You know, it is. And I was thinking about the history of this Department of Justice, created during the Grant administration in order to protect civil rights. The first prosecutions really brought by the Department of Justice were the prosecutions against the Klan and other white supremacists who threatened Vibes and killed and attack black voters. The kind of heroic recovery from Trump and the prosecution, such expense and work of the insurrectionists, finding you know, over a thousand of them and prosecuting them. And now what it's been turned into is the personal tool of this president used to go after I mean, we've been talking about going after his political opponents. This is something different.

This is why women don't come forward. This is why women don't come forward, because, yes, because he's using the instruments of government to pursue his own victim after she got justice.

Right, And of course there's no political anything here. It really is just a private vendetta. And as bad as the attack on Komi is, and before this, I would have said, wow, this is in history, one of the worst abuses of the prosecution power of the federal government. Well, now she's really become the chief victim of his Well, want to be dictatorship. The thing about dictators is they don't distinguish between the personal and the political. Their political opponents are personal, and their personal opponents are political. And that's what we're seeing here.

Imagine explaining this story in nineteen ninety two, right, Imagine saying, so, the president was found liable for sexual abuse and defamation, and then his administration launched a criminal probe into the woman he's sexually abused. Imagine saying this thirty Every Republican in Congress would have called it the ends of the Republic. Now they'll just nod solemnly, and they'll ask if she was woke. But I mean, what would James Madison say, Professor seriously about a president using state power against a citizen who had successfully challenged him in court.

You know, I think we go back to that debate between the federalists and the anti federalists, and I think that what the anti federalists, people like Patrick Henry, would have said is this is possible. I think they imagined that a criminal president couldn't be prosecuted because he controlled or she controlled the mechanism of prosecution. That was their main argument. The stuff about the pardon power is part of it, but their main argument is they're in charge, and they're in charge of who's going to be attacked as unlawful, and that can be manipulated by a criminal president. I think the response of people like James Madison and Hamilton was that would never happen. We're going to let people of virtue into this office. Well, we were really in a challenging moment because this is not only not a person of virtue, I should say what they meant by that a person of virtue, somebody respected the law. Yes, is somebody who the law is of his own weapon. And wow, it is the anti federalist nightmare come to life.

Before it's my job to ask the dumb questions here, and this is just so huge, Corey. Let me just let me just take one for the team. If a president does use government machinery against private citizens because of personal grievances. We began this with him using the machinery of the government for his henchmen, but if he uses it against private citizens, he hates what constitutional principles are being threatened right before our eyes.

Yeah, the idea of the rule of law. You know, I think certainly it's selective prosecution. That's what call Me is going to argue. And if this suit has ever brought, if she's ever indicted for this, not just investigated, then that's I think the argument is selective prosecution. But of course it goes well beyond that. The President of the United States is really committing a fraud on the courts, on the American public, and attacking a political opponent in the next administration. You know, one question will be of the crimes, and I think there are many crimes committed by the President's why I refer to him as a criminal president. This might be one of them. Trying to weaponize a public institution for private gain. Now he'll of course claim immunity, immunity, immunity, but this is not a public role. He's doing this, you know, in response to a private vendetta. So it might be an interesting issue in which immunity might not apply.

Did you send a gift for Don Junior's wedding to the Epstein account's daughter Because I totally forgot Corey. I'm so sorry. I know I told you I would send a gift from both of us. I totally forgot send anything.

I try anything. What would we get him?

Something, something that humiliate Eric.

I think he'd liked that.

We have to take a very quick break when we come back. I got to ask you a little bit about what's going on at sixty Minutes here and as well as seems like a lot of lawyers don't want to work for this administration. Back in just a moment to wrap it all up on the Oath and the Office, Welcome back to the Oath in the Office. I'm John Fugel, saying, okay, Professor, a couple of stories to wrap up this crazy week. We've been reading a lot about the hellscape at CBS News. Scott Pelly is getting a lot of accolades for the way he laced into their new executive producer and Barry Weiss, But a lot of it has to do with the firing of this journalist who accused Sixty Minutes of political meddling, Sharon el Fonsi. She had a piece. They killed it. They killed it for political reasons. They didn't give any reason why. She's been with the show since twenty fifteen, She said she would not resign and would only leave if she was actively fired by CBS. One of the recurring themes in your work that I have learned is that democracies don't lose press freedom all at once, they lose it incrementally. And boy, looking at CBS, this is the week after Colbert goes off the year because of this government. How should Americans think about this dispute between Sharon el Fonsi and CBS or the network formerly known as CBS.

Now, this is the most hard hitting news program, you know, maybe in our history, and certainly at this moment. Its role is not just through print journalism, but by showing us abuses like what was going on in that Glulag prison.

That's what I'm sorry. Sorry, it was about the Seacock prison, YESNL.

Salvador, Yeah, the Seacock prison, right exactly, and that we see it with our own eyes, the human rights abuses, and this administration with dictatorship is about is not wanting us to see things with their own eyes, to see it through their eyes. And I think this also, you know, we talk on this show a lot about oligarchy and the way that private corporations get co opted, and we've seen that with Jeff Bezos and his editorial page really disappearing from opposition. Democracy dies in darkness has become one of the worst jokes in American history, that paper just abandoning its role and holding the president to account. And you know, Trump is nothing if not tenacious. And he looks and he looks and he looks, and he found this show that will not relent in calling him to account, and so he wants to destroy it. What does he do? He you know, has his his ally, Barry Wise, installed in the head of CBS. Now we've talked a few times about sixty Minutes in particular, and you know, these stories were coming out although she was trying to stop that one or delayed or claim she had editorial suggestions.

I remember she said it was political. Now again, folks, this was about Seacott, that Gulag prison in El Salvador, where they're sending people in rendition flights without any due process, where people are tortured. And Corey, I get it. The First Amendment protects journalists from government censorship. It does not protect them from corporate executives who write their paychecks, who are worried about political repercussions. I totally get it. It's not government censorship. It's something we've talked about this more like a stochastic self censorship. But when a news organization pulls a story involving a politically sensitive subject because they say it would be political, what questions should a population be asking?

Yeah, I think that's right. A fired reporter can't just say my First Amendment rights were violated because I was fired by CBS or the exactly my contract. That's definitely true. But there is a First Amendment story here, which is the use of the FCC to target Colbert and to target CBS, which then in turn is limiting and maybe even firing and getting rid of its most hard hitting journalists. So you know, it's a complicated First Amendment story, absolutely right. It's not as simple as that CBS is somehow violating the First Amendment rights of journalists. But is the government is all violating our rights by going after CBS.

Absolutely, The CBS is a private company. They can run their newsroom however the hell they want. Constitutionally speaking, that is the end of the discussion, right, I mean, they there seem to be very committed is driving all of their viewers away from the CBS Evening News and sixty Minutes. This is only going to hurt the ratings for these shows. And you know, the new EP just said, well, broadcast is like an ice cube melting anyway. So it seems like they're just going to let the entire organization whether and die on the vine. And maybe that's why Ellison hired these people.

I'm not sure it's the end of the First Amendment story. I mean, I think you know whether or not this is going to be successful in court, But you have the head of the FCC, you know, really saying that he doesn't want comedians criticizing Trump.

That's why sarcastic self censorship, That's why they're scaring the networks into doing it on their own.

I don't know. I mean, I'm torn about it. I think I would call it in some ways, it's indirect, it's subtle, but there is a First Amendment violation, certainly in a government agency like the FCC threatening networks to not criticize the president. In some ways, it's almost the paradigm of the First Amendment. The problem is, you know, who brings the case, Where do you find it. It's Brendan Carr who's doing a lot of the dirty work here, and he's the culprit, he's the he's the state censor. But if it's CBS and this is what you've been saying and pointing out who's doing the firing, it gets very thorny and who you sue. But I don't want to lose say to the fact that, yes, the First Amendment is about government censorship and although this is indirect, you know that is ultimately what's going on here.

So yeah, and I don't want to lose sight of the fact that you're right. But there, how do I say this? There's still a there's there's a difference between legal rights and democratic responsibilities to society when it comes to journalism and major news organizations, right, Like, I know there's lots of examples through history where political leaders didn't directly censor journalists but created incentives for media to avoid certain stories. But Corey, what should we be watching for over the next two years in the relationship between political power and major news organizations? I mean, what comes next?

You know this is a thorny story. I mean, part of where the First Amendment challenge would come from is if CBS were to fulfill its obligation as a media organization and stand up for itself, and they, for instance, could sue the federal government could claim violation of their First Amendment rights. But what makes this so thorny, and this is why we're getting into it, is that they've really, you know, become part of the corporate oligarchy that by putting Barry Wise there, they've essentially given up. They've joined Team Trump, and so that destroys the First Amendment claim. It's not like journalists have a First Amendment claim against their weak bosses. And I think the real story here too is, you know, the same story that we saw with the law firms, where they were not all of them, but some of them were so quickly giving up when the President's read them. And you know, can those lawyers have a First Amendment claim against their own law firms for giving up? No, the law firms had to fight back. Those firms that did fight back were winning in court over and over again. And you know, I think CBS could have done that, they could have stood up for themselves. But you know, it's more like bezos where they are just bowing down before the King, and as great as the victories have been and the heroes that we pointed out have been, this week, this is a you know, a depressing story.

Well let me let me close out the show asking you a lawyer's story, because I don't really understand how you lawyers live your lives. I don't hang out in your lawyer bars and you know your lawyer neighborhoods. But something's going on with the legal profession and this White House, Corey. If you go back to the end of twenty twenty four, one in five lawyers who were working for our government at the end of twenty twenty four have left as of March. This is slowing down this particular president's agenda quite a bit. But more than ten thousand lawyers have left the federal government since Donald Trump took over in twenty twenty five. Ten thousand lawyers have left the federal service in less than a year and a half, Corey, Why should we care about that number. We don't think about government lawyers very often in day to day life. What role do these people play in protecting our government?

Yeah, people might have seen this story and sort of the eyes glazed over, But I think it's so important, and it was you know, we've been talking about hope, and sometimes we show joy on this podcast when people fight back and when we see the checks and balances working people winning against this dictator. This is a subtle story too, but it is a story of fighting back because what law students are deciding. It was always when I was in law school at Stanford Law School, if you were getting a position either after graduating or a few years after graduate, the Department of Justice, wow, that was like a golden position. You were doing something of such a high integrity, high level. And that was true whether it was the Republican administration or you know, George Bush Junior was president. It didn't matter because.

Now it's like a degree from Liberty University. Right now it's.

Yeah, and now you know what's happening. And this is what's It's not just at top law schools, although that's happening too. It also is at conservative law schools. So if you look at the students, for instance, who were interviewed by The New York Times in that story about the exodus from the Department of Justice, it included George Mason's law school. It's named after Justice Scalia and they were saying, you know, I don't want to taint my resume by being part of something that I know is dirty. And when you have conservative law students saying that, you know, despite the prestige of the Department of Justice, it shows you that the next generation is getting it, that they are seeing that this isn't normal, that this is dangerous. And here's the best part that in the long run, right, it's going to taint your resume because this is going to be seen as a sad, pathetic moment in American history. So if you want hope, look at that indicator that conservative law students are like, I don't want any part of this administration. That's a great thing for democracy.

What a time to be in law school and watching all this plague out while you're taking your tests. I mean, we also should stress that career attorneys are necessary to maintaining stability in our government institutions. You talk about how the largest number of these ten thousand quittings came from the Department of Justice. Like when you think about institutional knowledge and what gets lost when ten thousand experienced lawyers walk out the door, I mean, can the government function effectively if veter attorneys are replaced faster than agencies can train new ones. I know there's no evidence that these ten thousand people left because they don't want to defend something illegal, but I mean they certainly are slowing down the machinations of this government.

Well, I think that can only be a good thing, because what this government is trying to do is destroy democracy, and you don't want lawyers that are signing up to do that. And where are they going. They're going to the nonprofits that are fighting back. There is a story, for instance, about a government lawyer that left a job in which his job was to defend the EPA, to defend the Clean Air Act. And what did he do. We went to a nonprofit that was suing to enforce the Clean Air Act. Because the defenders of our laws are no longer in the federal government, they've got to pop up in the other centers of power, in the nonprofits, in the state's state attorney generals is another place where they're recruiting right out of the Department of Justice. So the tragedy is, yes, the federal government's going to have a hard time functioning, but in some ways that's a good thing. Exactly functioning in the way they want to do. It is destroying democracy. We had pre Perarra, as you remember on the podcast, and an amazing discussion with him. And this is somebody who you know, was US attorney in New York and played a huge role in the Department of Justice. And he was like, it's not a hard question anymore. Resign, don't be part of this. And that's what these law students are doing. They see the danger implicit here.

That's what Thomas Masseew did. There are some people on the conservative side sane enough to realize how this thing is going to play out, and it's not going to look good for them, which is exactly what happened last time. Corey. If you were teaching a constitutional law class using just the last week's events, what lesson would you want your students to take away. I mean, it seems like it's all about the importance of maintaining institutions that are willing to tell powerful people no.

Well, you know, every week we're engaged in a constitutional nightmare with all these hypotheticals that come up. Ten years ago, I would have said, you know, it's too far fetched, not just for an episode of Scooby doo but for a logxam, Well, it's happening. But here's the good thing. Sometimes in the middle of a nightmare and you can engage in lucid dreaming, you can control the nightmare, you can rescue yourself, you can start to do things to make things better. And that's what's happening. We're taking this nightmare and we're starting to win. And that's what this week has all been about. So what's the constitutional lesson of this week? That although the anti federalists were right about the dangers and they were underappreciated by those who defended the Constitution, the framers did give us checks and balances that work, and we're using them to great effect.

Professor Bretschneier, it is a pleasure to do this show with you, especially in weeks like this where it looks like the resistance is starting to catch. What is the best way for our listeners to follow you and keep up with your brilliance the other six days of the week. And when are you coming back from Italy? By the way, Jesus, you're turning into a merchant IVerd story. You're gonna fall in love and never come back.

I think that's why The Godfather has been on my mind. It's really in Tara Mina, and you know, not far from where Michael fled to when we left the United States.

And who could forget.

Out Marlon Brando. Yeah, it didn't go well for Apollonia, where Marlon Brando came back as the young Don Corleone to avenge his earlier wrong that was done to him and his family. So I'll be here for another week and then I'll be back, but I'll in the meantime urge you all to subscribe to The Oath in the Office to leave us reviews. They've really been coming in. This podcast is growing. It's such a phenomenal rate. We were number four last week on the Apple Government charts. So also tell your friends and you can find us too on substack The Oath in the Office substack if you want to watch us, we're on YouTube, and you know, thanks so much. I have to just say the listeners, I am collecting your questions your mail if you want to email me at Corey dot bretschnein Er at gmail dot com. We'll continue to take questions and respond to them. Thanks so much to the listeners for making the show such is great success, and of course John, thanks to you for doing it every week.

Absolutely. Thank you Corey, and I want to thank all of our listeners as well, and I want to thank Wendy and Beowulf and everyone who helps put this monster together. My name is John Fugel Sing. I host the evening programming on Sirius XM Progress Channel one twenty seven. If you don't have SiriusXM. We were also a free podcast called the John Fugal Saying Podcast. I am on substack because I am a carbon based and my book is called Separation of Church and Hate. Professor. Thank you for a week filled with so much good news, so much resistance, and so much reminder that the courts, the states and the citizens have not given up. It's really nice to see it catching. I can't believe the incompetency. I can't believe they seem to want to fail this bad but I'm not going to get in their way and I can't wait to see what comes next.

Thank you, John, what a pleasure.

We'll see you guys next week on The Oath and the Office.