Trump’s Presidency for Sale?

Welcome to another episode of The Oath in the Office podcast, coming to you live from the United States of America, where we lead the world in presidents who hide in the back of food cards. Some John Fugel sang along with the star of the show, the author of the Oath in the Office and the Presidents and the People. If you needed a good reason to go study the Constitution in Ivy League Universities, it's this man, Corey Brettchneider. Good to see you, sir.

Thanks so much, John. I'm looking forward to the discussion. It's, you know, depressing stuff that we're talking about, but talking to you somehow makes it uplifting. At the same time, we find the hope in all of it. And you know, one thing that's been on my mind since we've started the podcast is how much of the story is just about Trump and how much of it is about him spreading his corruption more widely. There's an idea in particular that a lot of political scientists are interesting it in, and I'll mention actually the law professor Azi's Hook has been writing about this, trying to look at the ideas of a Nazi era dissident who had an idea called the dual state, and the idea of the dual state was look, Hitler has basically declared himself above the law, but there still is the apparatus of law operating in the background for everyone else. And so one of the questions of our own time is is this something that's just about Trump or is the corruption going to spread? And as much as he remains the center of the story, I think some of the things that we'll talk about today are about the corruption spreading beyond him and beyond even his family.

I mean, I think, you know, the stories we're going to cover today really speak to me to this subject we've covered before. What happens when a president keeps treating the powers and information of the presidency as his personal property rather than a public power. And I think the first story is the most constitutionally fascinating, and that is that Trump's media and technology group is launched this truth Api, which is a service that costs about one hundred thousand dollars a month for all you MAGA voters out there, so you can get early access to posts from prominent truth social accounts, including trumps Now, the Intercept, and the Freedom of the Press Foundation.

Professor have sued, and they're.

Arguing that this whole setup really monetizes access to presidential communications for a privileged view. Reuter says, the plaintiffs are contending the service could give paying subscribers an advantage when Trump's posts move financial markets, which to me sounds like they're admitting this is for rich douchebags manipulating the stock market. But what is your immediate constitutional reaction search to the idea that sitting president's communications can effectively be put behind one hundred thousand dollars a month pay Well.

Wow, it is a wild idea that you would charge journalists for access to the president, something that it says if you're monetizing the bully pulpit, and then at the same time use the same technique in order to basically allow people into the orbit of those who look like they've already been engaging in insider trading. We've talked before on this show about the fact that there's an account that hasn't been identified, but it seems to almost perfectly match notifications about the news of whether or not there's a ceasefire in the war in Iran and manipulating and betting to short oil markets. In order to benefit from the seasfire, betting exactly that oil will will again going down in price when a ceasefire has been declared. That looks like it's either Trump or his family or somebody connected to him who has access to this instant information. So as the criticism comes, I guess he realized, Wow, I could monetize this. I don't just have to limit it to my accounts. We could give people early access. And it looks like a scheme to basically allow for you know, paid inside information in order to manipulate the markets.

And then also, not Donald Trump, professor, not Donald Trump. I mean, suppose he posts like a twenty five percent tariff on X tomorrow and then a hedge fund paying one hundred grand a month gets that information a few milliseconds or a few seconds before everybody else does. Is there a constitutional issue with converting presidential information into a private financial advantage for a select few citizens.

Well, I mean, I think we could talk about it on two levels. One is certainly in terms of when you think about Article two and the oath of office. The point of the podcast, the job is to preserve, protect, and defend the constitution of the United States, not to turn the office into personal profit. And we've talked often about the emolument's clauses. The idea that you can't use the office for profit did twice in the Constitution, a domestic emoluments clause and an international one. George Washington talked about the emolument's clause and pledged to take no emoluments in his first inaugural address to not profit from the office. This is the extreme. I mean, this is wild idea to which this is actually truly monetizing the office, both to journalists but again to these insider traders, and I guess I think too it is trying to create a sort of space of people who are above the law, who really don't pay by the other rules of others, because the idea is, well, you can trade this information if you buy access to it. Whether or not it's illegal or not. It probably isn't because he's giving enough access to the information that it isn't truly trading on private information. So it's not that these people are necessarily going to be prosecuted. Trump himself, of course has immunity, although it's only supposed to be for official acts, and this strikes me as the definition of an unofficial act. Part of what's incentivizing him to do all this is he thinks and believes that he'll never be prosecuted for it. And unfortunately that might be right.

I mean, let's point out that in the last ten years, no Congress and no Justice Department, and not the Biden administration, the Trump administrations have ever cared about the Emolument's clause. I mean, no one cares, Cory, right, Like, we could have impeached Trump for this one minute into his first inaugural address. No one's going to go after him. We've just decided Nope, he can do it. But to me, it's like this lawsuit saying that the presidential communications are getting monetized through a private company where the president himself owns a substantial stake. So isn't the constitutional problem stronger because Trump's not just making money from an ordinary private business, which would be a violation of the emolument's clause, but potentially making money from information generated by the Office of the Presidency itself.

Taste to this, you know, and then also basically spreading the corruption throughout this group of people who are going to buy in. And so yes, it strikes me as an extreme of something that should be illegal under laws that would operationalize, that would make real the emolument's clause. I mean, let me just say what I mean by that, because that's a confusing statement. So we have these two emolument's clauses, and you might think he can't do that. Let's prosecute him. First of all, who's going to prosecute him. That's part of the problem. That is all about the closing prosecutors. But there's a deeper problem, and we've talked about this before in the podcast, but here it's really becoming salient that those emolument's clauses don't have obvious pieces of law legislation passed by Congress that turn them into criminal laws that could be used to prosecute a president. And that is a failure of the Congress to not pass emoluments legislation. Now, it's not that, you know, I'm always trying to lean into optimism at the same time that I want to tell the truth about what's going on here. And the optimism is that there are bills that have been introduced to Congress to do exactly this. They haven't been acted on yet, and they won't be acted on until we have a Democratic Congress. But I do believe that if Democrats take the House, these bills will move to the floor and we'll get a vote on them. And you know, let Republicans vote against the bill that says you can't profit from the office, against the emolument's clause. I'm not sure that once we're at that point they'll be willing to do that.

They will the other They know Fox News won't cover it. They know Fox News won't cover it, so the pokes at home will never know.

Corey maybe, But if Democrats control the House, my point is that they won't need the Republican votes or many of them. You know, they'll be able to get them through at least through the House. The Senate. You know, well, we're waiting to see two. There is a chance that Democrats will take the Senate, and if they do, you know, we'll have the votes to at least pass it. Now, you know, that becomes interesting politics too when Trump veto's it. Now we have an override vote. It's very hard to override a veto, but it is of course possible, and once that override vote happens, maybe there will be the votes to override, and maybe they'll be weak enough.

That's the only way. I mean, like, I'm stuck on this cory. If a president can monetize access to their official White House communications, what stops this presidency from just becoming a subscription service for oligarchs?

Right?

I mean, could a court actually order the president to change the way he communicates?

Could that happen?

Oh? I think you could make it. You know, just because something is communication doesn't mean that it's necessarily protected. Free speech for protected by a president. So if I order a I'm not going to do this. Let's take a hypothetical person orders a murder over the phone that speech, but it's obviously illegal. Well, you could criminalize certain forms of corruption, including selling the office for profit, and that's what this legislation would do. The other thing I don't want to lose sight of. And you know, this is the optimism again. If Democrats take the House, I'll just remind listeners the way impeachment works. And this would be the third. We've only had four impeachments voted up by the House. We've never removed to president. Two of them were Donald Trump, one for the Zelenskik demand for dirt on Joe Biden and his son in exchange for basically r and funding to Ukraine to Zelenski. That was the first, the second January sixth, extremely paradigm. I think of what impeachment is supposed to be about, and this would be the third, and you just need a majority of Democrats to do it. And I would put a monument's violations exactly these cases and this idea. I love how you said it, John, I don't want people to miss it. A subscription service to the presidents that is almost the definition of a monument's violation. So you know, legislation, it gives us the need when you see the crimes and you think this isn't illegal, how could that be? That calls out for a vote on this kind of legislation. And then also absolutely top of the list impeachment for molument's violations. And just to be clear too, sorry, sorry I'm getting a little long.

Please please please know, but.

Just because we don't have criminal laws yet that make this illegal doesn't mean it's not a high crime and misdemeanor. You don't need a crime in order to have an impeachable offense. You need basically action that undermine the office, that are an assault on democracy. And this is a paradigm of what that means.

Yeah, I mean he's profiting off the office. And let me just I'll get off this. I just have one last question on it. Does the Constitution recognize any kind of real distinction between Donald Trump the corrupt, a moral private businessman and Donald Trump the corrupt, a moral president.

You know that we can talk about what should be the case and then what is and increasingly the you know, the way that the unitary executive theory has unfolded is it has you know, I think the people who defend that theory, any constitutional scholar, will say, of course, the president has certain obligations. In fact, when you look at Article two that creates the presidency, it's filled with duties you have to pledge to preserve, protect, and defend the constitution. You have the Article two requires a president to take care that the laws be faithfully executed. And in my mind, there would be legislation, criminal laws that say if you violate those duties, or if you attack democracy, you could be subject to not just impeachment, but to prosecution. But this Supreme Court has just done so much to enable a president who you know, they claim they're thinking about Ronald Reagan, but when they're dealing with the president who's using this powerful office to commit crimes and make money, they've just undone so much of what we would need to do. And front and center, of course, is that horrible immunity case that a president can't be prosecuted at least for official duties.

They want a King, Corey. They just they want a king who's not held back by your woke laws. And can we weigh deeper until the corrupted professor? Because the swamp is getting nastier in many ways. It seems to be like the new corruption is just not going after existing corruption, and the government's willingness to investigate corruption itself is now on the chopping block. So Donald Trump put out an executive order in February of last year that directed the DOJ to stop any new investigations under the Foreign Corrupt Practices Act while the White House was reviewing their enforcement policy. I mean, I know, with all the illegal wars and murdering Americans in the streets, this got overlooked. But the White House more or less said stop looking for corrupt practices from foreign countries. Right now. And they set it on the grounds that the FCPA enforcement would hurt American economic competitiveness and we would interfere with presidential foreign policy authority by investigating crimes committed by corrupt, a moral people the president likes more than ninety nine percent of the population. This story is a little bit complicated, which makes it a bit more hard to outrage the American people. But Corey, holy crap. Can a president just tell the DOJ to stop enforcing a federal criminal statute that Congress enacted? Can a president just say time out on enforcing these laws?

You know? Increasingly, you know, my answer is going to be the same. The more that you increase this idea of the unitary executive and say that there aren't independent obligations of civil servants to protect a law apart from whatever president says, yes, the more control the executive branch has. And what's amazing about this story and why I'm glad we're covering it is, you know, as Elizabeth Warren has pointed out, this is meant to create ways of these aren't public databases. They create ways for the FBI and for law enforcement to see who owns what and to look into things like money laundering, and this database that has already been collected is of enormous use to law enforcement as they investigate these crimes, international financial crimes, which are extremely complicated. People are moving money with crypto across borders, and at least this was a way of allowing these things to be tracked. And why is Trump coming in now and I'm doing My understanding is it's not just you know, future data gathering, it's that they're they're ordering the erasure of so much of the material that they already have.

You mean, you mean corruption and bribes and money laundering won't be able to be prosecuted when Trump leaves office because they've destroyed the evidence. Is that what you're suggesting, sir.

Well, that's part of what's going on. I mean, let's get to brass tax because you know Trump and this is what I was trying to say too, The corruption is spreading, not just Trump and his family, but protecting all those really who seem to be operating with black markets and crypto. And many of his supporters, of course, are from the crypto world, and there is a you know, not one hundred percent overlap, but there is some overlap of black markets and crypto, and the more that you allow who's involved in various companies, who owns what, transparency and these databases at least, you know, in issues of that allow law enforcement to investigate these very complicated financial cores across the borders. When you erase all of that, it's just hard to crack down on it. And you know, the obvious is that this is a president who essentially, you know, sees his constituents as those who support him, not just at the polls. I think that's not really what he cares about, but support him financially and support his businesses. And this is a president whose family and he have been involved so deeply in crypto that it's really not a surprise, including you know, pardoning some crypto criminals.

But that's it, right, I mean, there's got to be a constitutional line between prosecutorial discretion and just a president obstructing the law. Can a president just just say I don't like this statute, so we're not going to enforce it.

I mean, is that a thing?

Well, you know, I'll say what's supposed to be and then I'll say what we're dealing with here, Because it's wider than just this story I mentioned, you know, Article two. Article one creates the Congress and limits it. Article two creates the presidency and limits it an Article three of the Constitution creates the Supreme Court and the possibility of lower courts. So what is Article two say about this? It actually answers your question, John directly. It says that a president is obligated here's the quote, to take care that the laws be faithfully executed. In other words, no, you're not supposed to have discretion. You're supposed to take the laws on the books and enforce them.

The oath and the officer, the oath and the office. I spared it up that that's the idea.

Yeah, but increasingly, you know, that's not how Todd Blanche these things, and that's not how Donald Trump see things. They they say, well, the president, you know, I should say too. I don't want to overstate it. You know, think about it, right, you know, are you going to enforce every immigration law something that you often heard Article two cited in regard to Biden. Well, obviously there's some discretion when it comes to the enforcement of laws, but that decision is supposed to be made with the public good in mind. With thinking about resources, he's thinking about something totally different, which is protecting his cronies. And what Todd blan Branch, who we've often referred to not just as the president's personal lawyer, but his personal criminal defense lawyer, does again and again and said, well, you know, I might not agree with this, but yes, as the unitary executive, you have control over law enforcement and including over what laws and prosecutions are broad. You know, at the Founding I really want to go back to the founding on this, because they're frightening how much this was an issue. The founders had options on the table. They could have taken the office of Attorney general, made it independently elected. That's what we do with New York le teacher James is independently elected. They made the decision to put the president and the Attorney general in the same branch, with of course the president at the head, and the defenders of that said, well we'll have people of virtue in wow. Anti Federals, those who opposed ratification and opposed this decision at the convention, said you know what, like what if you have a bad person, what if you have a criminal in the They predicted this even Their worry was, Wow, the Attorney General is going to get manipulated into defending crime, and that's what's happening.

All right, So let me get into something else.

Then.

That sounds incredibly boring until you realize it as enormous implications.

Please, friends, Although I heard a lot about license plates from our listeners, they did not find it boring. They loved it.

It's a great story.

I loved the license plate story everybody listened to the last week's show. But at this one I got to ask you to wait into the swamp with me on this story because it gets worse. And I tried to start this one off light. But the Corporate Transparency Act created these beneficial ownership reporting requirements that were supposed to make it harder for criminals to hide behind shell companies. Right, So in March of last year, the Treasury exempted US companies and US persons from those reporting requirements. So the Government Accountability Office then found that the exemption applied to more than ninety nine percent of entities previously covered, reducing the universe from roughly thirty two and a half million to about one hundred thousand. So, I mean, this is very hard to understand that why should constitutional lawyers care about corporate ownership databases?

Well, you know, you look at the purpose behind legislation, and it was part of what we were talking about before transparency, that these databases give law enforcement a way of recognizing who owns what and doing the very hard work. And this is extremely hard work. Think of how easy it is now in the electronic world to mask your transactions. And I mentioned crypto, that's also part of it. And so you know, this legislation was meant to try to give law enforcement some leverage in finding out, you know, who owned what and who was doing it. And so now you know there's an attempt to undermine them.

So if Congress says these corporations have to disclose who owns them, but the president says, we're not going to require ninety nine percent of them to do that, who wins the separation of powers dispute there?

You know, under the current Supreme Court regime, I'd say likely the President's going to win a lot of these battles. But they speak to this wider issue I mentioned to take care clause, the obligation of the president to take care that the laws were faithfully executed. The last time that we really saw a significant debate about this was talking about impeachment was during the Nixon administration. This is not the same issue, but you see how it's related. Nixon refused to spend funds that were allocated by Congress. He just said, well, I have the discretion as president to spend or not spend, and Congress said, what about to take care clause? So when it came to the articles of impeachment, some of them really focused on this idea that these impoundment of funds were violation of the obligation of the president to take care that the laws are faithfully executed. Now, you know, Trump has done similar things with DOJE and trying to basically undue agencies created by Congress, refusing to spend money allocated to those agencies. And here I think he's doing a similar thing. Or it's not that he's gotten the legislation repealed. You know, he could do that and he could sign a law that repealed it. He's just trying to not enforce them, and so that that kind of take care clause, you know, claws out of by the wayside. The problem is that the Supreme Court has increased presidential power. So you know, what's the penalty here? There's not a criminal penalty. Would there be learn impeachment? Might? I don't even know that that would be something that would capture the mind of the American people, I would hope. So it's complicated, and that's why he's going to get away with it. I think, all right.

Can I ask a couple more dumb questions about this.

Congress makes the laws, the president executes the laws. Right, So can the president effectively rewrite the scope of a congressional law through his own regulation? I mean, at what point does a presidential interpretation be a presidential repeal of law?

Right?

Like what happens when the executive branch thinks that these roles are interchangeable and we can make the laws and execute them.

Yeah. I mean, if you look at the founding idea of what take care that the laws be faithfully executed? Men and men? I think to the framers what we all learned in grade school about the three branches of government, which is that Congress passes the laws and the president carries them out or executes them. Now here's the problem. Here's the theory of the unitary executive. It says that the executive power is vested in a president, and that includes powers that go beyond just executing the laws. They include the discretion to enforce laws or not. And who is a court to say that a president's interpretation of what laws he wants to enforce, or here's another way of putting it, how he reads the obligation that Congress gave him and enforce these laws. That they start to emphasize the idea of presidential interpretation. And there is an idea that goes back to Jefferson called departmentalism that says, look, there are reasonable disagreements between what Congress thinks and what a president thinks, and what a president thinks might matter, but that's not what's going on here. What's going on is there's a clear meaning of these laws, and then there's a president who's saying, well, I have the executive power to undermine them. And that's how out of control things have gone. It's one thing to opine on what you think a law is or to give it, but to really refuse to carry them out that is really you know, this was a very elaborate explanation of what you just said, which is if the president's execution of the law's power includes the ability to just ignore them. Well, then, when what sense do we live in a democracy? We are allowing the executive president swallow up congressional power.

Okay, let me go a step deeper into this corruption, then we'll get our commercial break, I promise, Wendy. Like the General Accounting Office has said, these opaque corporate structures are there to conceal identities, right, and to facilitate money laundering and other illegal activity. So the only reas and Donald Trump is doing this is to protect corrupt foreign actors, be they Russian or Saudi or god knows what if law enforcement is not allowed to identify the people behind shell companies, Corey, what happened to the government's ability to investigate organized crime? It's literally a waiver for lawbreakers.

Well, he is really, you know, not just has the ambition he's doing it. He has the ambition of undermining what he thinks of as the deep state prosecutors bringing normal cases based on the fact that laws were broken. That's not what he wants. He wants control over what this department is used for and his priority we know, aside from the ballroom, which is evidently taking up a lot of his mental space prosecution prosecution of his enemies, and you know, I have to say something. There are rules about this, but I attended a meeting of a lot of former public officials from both Democratic and Republican administrations, and it did include members of the Department of Justice. I'm allowed to say that much. But there was a real interesting discussion and debate there about whether or not the whole DOJ is corrupted. And this is part of what I'm talking about with this dual state idea, or whether or not it was just a sort of small part in which he was exerting inappropriate control, but the rest of it remained fairly normal. And I think what this story shows is, no, it's not an isolated thing. He's infecting and trying to undermine the normal law enforcement function of the Department of Justice of the federal government and the normal laws that they would use in order to go about bringing cases based on well crime is being committed. That's what I think he's trying to at the same time that he reduces that enlarge his use of the Department to do things like go after his enemies and search for election fraud and to use the resources of this department in a way he couldn't in Trump wan to really control it and to under any semblance of the rule of law. If the question is, you know, does Trump coexist with the rule of law, the answer to me this story helps bring it out is clearly no, because he's really infecting the entire department.

All Right, we got to take a break.

I just don't understand how like the government is making its own institutions deliberately less transparent to protect foreign criminals. Right, there's no opinion there that's exactly what's happening. How can citizens meaningly hold this government accountable? Professor, if the government systematically destroys the data necessary to know what's going on.

I'll sound a few notes of hope. One is, as we've often talked about, you know, the more we get these stories that they are hard to explain. You know, that's one thing. This story isn't being covered in the way that it should be. But the more you understand that he's not just going after his opponents, but he's trying to actually undermine law enforcement, the more that we could get that message out, the more it's clear that, well, we need laws that not just create ways of prosecuting criminals, but that also make it a crime to undermine those laws. And I think that, you know, that's one thing that we should start thinking about which ties all these stories together. Certainly with the emoluments legislation that I've talked about that would do it. But I also think to try to use the office in order to get you know, let's assume that some of this is going on to try to help your friends who are potentially going to be or your allies who are going to be prosecuted. We have to start to think about how to prohibit that, how to have judicial intervention to keep it from happening. And one other way to do it, which did come up in this meeting of former DLJ officials, would be to create even better protections for people from being fired, because if they knew they couldn't be fired for doing these things, I think you would have a lot more people bringing cases, standing up refusing to do the president's bidding. But you know, of course, the main thing that we need to do is to get transparency about what's going on behind these stories, who is trying to protect. Impeachment would be yet again, a really important way of doing this. If we have a democratic house, all these stories are on the table for thinking about impeachment.

I agree these moderate saying you can't impeach him again. He's not going to get convicted. That's not the point. The point is when you are impeaching him and he is defending himself, he is on the defense, and it makes it harder for them to commit more crimes.

And we have to get these you know, you and I can do our show, and there are shows like it. It's not getting the kind of coverage that you would like to see in the mainstream media now. The second it becomes the subject of impeachment, and these stories that we've been talking about are on the front burner, including the use of truth social in order to sell access to information, the legislation about you know, the undermining of legislation that's used for normal criminal law enforcement. The more that we see all of that through impeachment, the more people will care about it, and the more of course mainstream media, not just shows like ours, will pick it up.

And I'm sure Barry Weise can't wait to cover this heavily on the New Six Minutes, especially after she hires Scott Bayo to be the anchor. Okay, we got to take a break back in just a moment. Let's talk about some shock gloves too. This is the Oath in the Office. Welcome back to the Oath in the Office podcast. I'm John Fugel sang along with Professor Corey Bretschneider. Corey, Let's move to perhaps the most constitutionally consequential item in today's show. This White House has now asked the Supreme Court to intervene after a second lower court ruling blocked their illegal plan for the US Postal Service to impose new nationwide conditions on mail voting ahead of the midterm elections. Because you got to make it a little harder to exercise her right here, make it a little harder to exercise or right there. They're not fans of democracy, So how much authority does a president actually have over the mechanics of federal elections?

Because damn, this man is trying.

Wow, this is a frightening story. I mean, you have two lenses here, and you know, I can tell you what I think is right, but I also think that I'm not sure what the Supreme Court is going to say is right. Is the same thing I'm going to say. You know, one lens, which is a lens I wish I could say, is the obvious right answer that, of course the Supreme Court will enforced. It's not, unfortunately, is that elections are controlled by the states and by local government. They thank you, federal authority to you know, simply deny the ability of people to vote in an election because Trump has decided that they're not eligible. And in particular, what he's done is he's got a slate of voters he thinks are ineligible. And my understanding is that many of them are citizens. It's just that they're naturalized citizens. So you would think, like, okay, he can't do that, and you know, and Trump won before he took office, and even in his first term, I would have said, you know, this isn't going to go anywhere. It's just his fantasy. But he's got a way of doing it, which is he's not really trying to go to the officials at the polls, for instance, which he couldn't do and say don't admit these people to vote. That would never work for the reasons that I'm saying.

Instead, No, that's why they want to send ice there to intimidate people so they won't try to vote.

But to do that, you know, that's another way that he might try. But here's his run around. This is what's scary. He's realized that mail in ballots, of course come through the post office, and he's claiming that as president, he has the discretion to order the post office, which is part of the executive branch. And actually, there's a famous case about control of the post office called Myers versus Nebraska, one of the early cases of the unitary executive. People love because it talks about the idea that, yes, even though a law tried to prohibit Woodrow Wilson actually from a political firing, that Article two's executive power means he can fire the high level official in the post office. Well, that same logic is at play here. I mean, that's the case that dates back to Woodrow Wilson. But they're using it. All the president is doing is making an administrative request order to his subordinates to look out for fraud, and he's allowed to do that. You know that it's not interfering with state election processes. It's just looking at the mail and trying to prevent mail fraud. That's the kind of argument that they're playing with and developing. And if you think about it, right, if that lens is very different than the idea of the state's control elections. It's the lens right, the federal government, president's control over his own agencies. And that's where it gets really scary.

Right, But so are we saying that a president can use control over a federal agency like the Post Office to essentially change election rules on his own. I mean, if Congress hasn't authorized a president to impose a particular election requirement, where does that president get the power?

Cory, Well, you know, thankfully, there's a danger here. But what the lower court said here, the Court of Appeals, was no, he can't do this, and there's actually an injunction in place that prohibits him from implementing his plan to get the Post Office to refuse to deliver these ballots. And they're citing not just the Constitution but also federal law that says essentially that that's the argument. So that's what I'm hoping will prevail. But of course, what the Solicitor General is doing here is trying to go to the top court in the land in the United States, the Supreme Court of the United States, and he's petitioning them to override the Court of Appeals and to use this more unitary theory. It's just an administrative relationship between the president and the Post Office. And if I told you, well, they would never do that. The Supreme Court's not going to expand the theory of the unitary executive to undermine statute and the Constitution. Well, you know, good luck to us, because that's exactly what they've done again and again. This is the same court that, by the way, there used to be at least a tention in constitutional law, the Meyer's case about control over the Post Office, which I mentioned, and the counterbalance was the Federal Trade Commission case Humphrey's Executor that said Congress can create all sorts of laws that limit the president's ability to hire and fire kind of independent agencies. Well, the Supreme Court this past term just overturned Humphrey's executor. They know the Meyer's idea of control, control, control, control, So that's why on this one, I wish I could say I'm not worried. No, I'm plenty worried about this one.

Yeah, me too.

I mean, how can this not be stopped by so many lawsuits scry. If a president changes the voting procedures, like just months before an election, I would imagine that courts would want to apply a heightened level of scrutiny because there's such a danger of confusing voters or disrupting the whole election administration. I mean, everyone knows he's doing this to cheat. Everyone knows there's no problem with elections when Barack Obama and Joe Biden are in office. But when he's in office, shit's got to get rearranged, right, I mean, I would imagine that this would just get shut down by lawsuits immediately.

Well, you know, that's what we're in the middle of. There were successful lawsuits to stop him from doing that. That's why there's a order to keep him from implementing this plan as of now. But you know, the people listeners will know the duck rabbit. Right, there's a picture and if I look closely, it looks like a duck. And then if I look at it, it looks like a rabbit.

No, it's a duck.

No, it's a rabbit. Well, the duck part of it, the part that I see says, you know, I don't think so it's everything that you just said. He's trying to basically undermine the ability of states to control their own elections. And his purpose isn't fraud or the common good. It's to win at all costs. See's the same guy that specified to the Georgia Secretary of State the number of votes that he needed to win, and that he wanted to find those votes. So you know that's the duck part. Now, the Supreme Court is in a different world. They see the rabbit and what the rabbit says. Possibly they haven't said this yet, but what they're solicitor general is saying this. The Solicitor General is a person defends the United States before the Supreme Court, and what he sees is is just a president talking to his staff. And who are you to come in and tell him what he can tell the Post Office, which is part of his branch, what to say or how to laws about fraud.

Right, but I've learned about from you about the Percel principle. Right, isn't that the Supreme Court's concerned about courts changing election rules close to an election? I mean, couldn't the court say, even if we agree with these changes and they're legal in the abstract, it's too late to impose them before an election. I mean, wouldn't that seem realistic?

I really hope so, John, They want to have it.

Both ways, mister Trump, But we care about our own reputations. That's the John Roberts way.

You know, if I think about one of the most what impactful moments in American history in which the Supreme Court made a decision that impacted presidential election, this is the midterms, this president, it's Bush vy Gore, And you know what's the rationale for it? They actually said, you know, in Bush v. Gore in the court said, this is not a precedent. It's a one time thing. Every time a court makes a decision, it's a precedent. That's why it's a court of law, because it's making apining supposedly based on independent principles of law, not based on politics. But yet in that decision they seem to say, well, we're just deciding. And then they had a mismash of explanations that really made no sense. Some were about states rights on the notical too. Some are about equal protection. And I don't know if I've ever talked about this on the podcast, but I had in my life. One of the most bizarre but interesting moments. When I was a graduate student, Justice Scalia came to speak and he said that he wanted to meet with a few students. It was right after Bush v. Gore, and I said to him exactly what I'm saying to you all. I said, you know, this decision Bush v. Gore doesn't make any sense because on the one hand, there's this argument about Article two and the importance of respecting state legislatures and why it is that the state courts in Florida disrespected the state legislature under the electoral college. And on the other hand, there's this argument about national equal protection and why we have to count all votes nationally the same way. And we've never said that second thing. And you, Justicelei, this is what I said to him, have never said anything like that, so you know what's going on. And the first thing he was like, famous, you know, for being pugnacious and making sure we first thing he says is well, liberals like you seem to love the equal protection clause. And finally I used it, so you know, and I said, you know, come on, this isn't your jurispru It's not what you believe in, and he basically was like, you know, sometimes you just need to make a decision basically. Yet it's political, it's pragmatic. You're not really seeing the reasoning. And you know that's the reality kid of how it works. At least you know. That's what scares me that in that huge case, it wasn't decided as a matter of law, it was really politics. Ralph Nader, when I spoke to him, once called it a judicial coup, and I think that was an interesting way to put it. And here we are again.

Wow, you were right, Corey. This is a depressing episode. I really, I just I'm trying so hard here. I do want to say at least Scalia died doing what he loved, taking expensive free gifts from rich scumbacks. But it just seems like this is the cycle now, like we have to teach kids civics in a whole new way.

This is what this is.

It the president does something that's illegal, lower court blocks it, the administration appeals and appeals until the Supreme Court always gets asked to intervene. I mean, isn't the Supreme Court becoming like the de facto administrative veto point in American government.

You know, SNL did a skit about trying to rewrite how a bill becomes a law the Schoolhouse rock song. You know, I'm just a bill sitting on Capitol Hill, and it was a video of I mean, is Keenan Thompson pushing He's an executive order and he pushes the bill down the stairs, and the executive order is sort of taking over. That's part of it. But I think what they're missing and what you're adding to it is it's really the Supreme Court is wrangling all of it together in its own image, and it's not the idea that it's using law. You know, I wish, having taught constitutional law for more than two decades, that I could just say, well, you know, let me explain it. I used to say things like that, let me explain it. It's more complicated. It's not more complicated. The Supreme Court might interfere with our election because of this theory that you know, election fraud is the business of the president.

Oh that's not the reason why that interfere with our election. Because they were aristocrats, and this is how the systems always protected itself since the founders decided only white males who own land should be allowed to vote. It's a big club and we're not in it, right. I mean, we got to take a break. But let me just ask you, I mean, ten years from now, looking back on this, isn't it just going to look like the entire of this administration was to just commit crimes long enough until the Supreme Court stops them.

That's it, right.

Donald Trump's you know, whole strategy as a litigant is always delayed, delayed, delay, and he did this incredibly successful in the cases against him in Florida, the Document's case and in the January sixth case that were brought by Jack Smith. He delayed, delayed, delayed. He used this immunity decision, which didn't They never decided that he had immunity, that these were public acts, and in fact they might not have. But he became president, and once he became president, the Department of Justice was under his control. They weren't going to prosecute him, and they also have a policy against prosecuting sitting president. So delay, delayed, delay, you know that that's part of the story. But it's more than that too. It's a court that routinely has enabled by the way they weren't doing this as an extreme away under Joe Biden has enabled this president and you know that looks like politics. And I come to the sad conclusion, and of course it is.

We got to take a quick break. But when we come back, Corey, can we talk about shock gloves? Because I don't want to spoil what I got you for Christmas. But we really got to have this conversation back in a moment with the Oath and the Office. Welcome back to the Oath in the Office podcast. I'm John Fugel sang along with Professor Corey the mac Bretschneider. Corey, let's talk about something that sounds like it was invented at the deepest darkest s and m dungeon that Stephen Miller Dwells in the Associated Press says that ICE is going to spend as much as twenty million of our taxpayer dollars to buy gloves that are capable of delivering painful electric shocks to other people upon direct contact, because these are Christians who like to hurt people. DHS is saying it's a less lethal compliance tool. Tom Holman has defended them. There's another option that's short of deadly.

For us.

And when was Tom Holman anything but the most forthright law abiding man, Corey. But what is the constitutional standard that governs the use of electrical shocks against somebody by an immigration officer?

You know, I have to say, I'm still stuck on the idea that this is my Christmas gift.

But well, let's see, let's see. Yeah, well you answer this question.

You've got to heard Ito on now I'm feeling I'm not here to King shame Cory. Whatever you're into is fine with me. But but I mean, immigration officers are allowed to inflict electric shock pain on people?

Covers this?

No, And you know, let's talk about what immigration officers are supposed to be doing. They're supposed to be Yes, they have the ability to enforce federal immigration law. And in our system, the federal government has control over immigration policy and that gives them certain rights to investigate whether or not somebody is in the country lawfully.

But that would this will deport them with no due process.

I mean the thing but what this department has done is turned ice into this deportation for us and a kind of militia and so as protests. You know, this is what scares me of course that as protesters start to surround them and to use their First Amendment rights. Just because there are rights of the federal government to enforce immigration laws, that doesn't mean that we lose our right to protest. They are massive abuses. And what we've seen, what they've done already with the killings in Minnesota for instance, what are they going to do with these gloves? You know, in these confrontations. I just see protesters, you know, being illegally attacked, and there's no law in the books that allows that.

Let's say, these people are allowed to murder citizens and not face any kind of accountability.

It's one thing, you know, too, we've talked about the role of the states versus the federal government. There is no way that any US attorney is going to bring cases against ICE agents. I'm just not seeing it, even when they engage in.

Not until twenty twenty nine, they won't.

Yeah, that's right, and let's not forget that just because it's not being brought now that the next administration will have the power to do that. I certainly hope that happens. But you know, there is a role for states in bringing these prosecutions, and there isn't an explanation, a good explanation of why state prosecutors and local prosecutors haven't brought these cases they should be. I think there's some worry about the idea that the federal government is supreme. But if you murder somebody and you're an officer, you're subject to the same criminal laws as everybody else. And yes, there is a limited kind of immunity for federal officers, but it's not absolute. And so anyway, as we see this department clearly not abandoning its vigilanti ways, you know, we've got to start pushing local prosecutors, some of them are elected to bring these cases.

It's just Jesus Christ. How these people hate Jesus Christ. I got to say.

You know, their argument from the government is, well, it's non lethal, so it's preferable to killing people. Right, It's not deadly for us, it's non lethal. My understanding is the question under the Fourth Amendment is reasonableness, Professor, Just the fact that a weapon is classified as less lethal tell us anything about whether its use is still constitutionally reasonable under the Fourth Amendment.

I mean to me, look, there are entitlements of ice officers to what's called qualified immunity. So they have made a crime, you know, like assault, it's not as easy to prosecute them, especially if they had the understanding and were intending to really just enforce the law. But the idea that it's just a murder that's illegal can be prosecuted and not assault. You know, imagine we can use a million hypotheticals to think about it. Imagine that an ice officer, you know, gets irritated with a protester and some these shot gloves to attack them. That's assault. You know, who aren't simple and there's no qualified immunity that should protect them. So no, the fact that it's assault rather than deadly force, I don't see that that has any relevance to the question of whether or not a crime was committed by these officers.

Yeah, I mean, doesn't matter whether the person is, you know, attacking the officer or resisting arrest, or trying to run away or just refusing to comply with a direction. I mean, if an officer has a device where you can cause pain to a human being at the press of a button, it seems like that technology will change the officer's incentives here.

Yeah, I mean, it's it's an interesting point, because look, how do you what you're really asking, which I think is and we're all just starting to think about this. Is it possible to use these gloves at all in a legal way? Okay, so you can restrain somebody in order to detain them in imagine a lawful detaining situation. Is there any universe in which using these gloves is just a sort of detention you know technique. You know, imagine somebody that has I'm trying to think of an equivalent, like, you know, shooting bullets out of their vest every time they do and arrest, and they claim that this is just in the or bebes that are meant to maim somebody rather than cause pain. You know that there are techniques that you can use and then there are techniques that you can't use in detention. And this strikes me as obviously over the top. So it isn't just the intent here that matters. The question really is is there any lawful use of these or is it the whole existence of the gloves just something that strikes us as not in the pursuit of any kind of legitimate duty of these officers.

Corey, I'm looking at all these stories today that we've covered about presidential self enrichment and corporate transparency and election administration and now violence against immigration. I mean, it seems like it's all about who watches the people who exercise government power. Is that the thread that links these stories together.

Yeah? Yes, And you know, I would kind of divide in our conversation into two other themes. One is that the for profit presidency, that this president has really taken this office to be for the public good, and we see that in the oath itself the name of the podcast, to preserve, protect, and defend the Constitution. We see that in the obligation to take care that the laws are faithfully executed. And what has he done. He's tried to make money by you know, enriching himself and including you know, giving a chance to buy in to the insider trading that evidently has gone on in regard to oil futures, and you know other parts of this presidency and the crypto corruption that we've seen. So you know, that's part of the theme. And then the other thing that I've tried to sketch too is that, you know, throughout all these stories, I think that we've carved out the way in which the corruption is spreading. You know, it's not just like this one guy in the corner, you know, like Spirou Agnew took bribes. Okay, did that infect the whole federal government? No, it was some small time con guy that was like off in a corner taking bags of money.

That's even care. That's the difference. People cared when Agnew did it.

Yeah, and he was removed office, and you know there was a criminal content, Yeah, and you know, resulting of course and Ford taking over. But here what's happening is so much it's not only that there's no accountability, it's that it's so much bigger that you know, he's selling the office to basically public subscribers who want inside trading information, and then he's also killing off And this was so much of what we also talked about the ability of everyone else in the government to do their jobs, to take their oades seriously. And that's what I think makes this not just an isolated corruption, but something that really has not an isolated, you know, presidential set of crimes, but really destroying the whole integrity of the country.

So, just to wrap up what I got here, is a president is allowed to monetize access to information generated by the presidency. A president's allowed to refuse to enforce a federal law if he doesn't like the law. A president can essentially rewrite a federal law through his executive brand orders. A president can impose nationwide election rules without Congress if he feels like it. And an immigration officer can shock you because he doesn't like you. Today, Am I getting all this right? This is where we're at now, right in the dystopian America?

Well, you know you've taught me many times the first rule of improvs yes, and so I'm going to say yes, and that is all happening. That's what we've been talking about. You know, this isn't the way it's supposed to be. If you read the Constitution itself, it says the opposite. It doesn't say that a president uses the office for his own personal profit. It says you can't do that. And the idea of civil servants taking odes, I mean, they're not supposed to just be beholden to a president that wants to use them for his own personal gain. So we've just lost our way as a country in such a fundamental way that the Charter has just become the opposite of what we're doing. Yeah, we have lost our way.

I think you're right, But I mean, are we witnessing the failure of the constitutional guardrails here or are we actually witnessing No, it sucks, but the system is still functioning. The courts, the Congress, journalists, citizens are still pushing back. We're doing this podcast. I mean, right, like, it seems like the system is still functioning in spite of the naked corruption.

I think that we are fighting back. He hasn't succeeded in collapsing the system, but we are also seeing the weaknesses of our system. I don't want to blame it all on him and say that, you know, all we need to do is fight back. We need to really recreate the guardrails of the system. The Constitution itself really is an outline of the guardrails, but it has to be filled in with laws that make what he's doing illegal. We haven't done that that make it illegal for people to participate with a president who wants to involve them in his own crimes through this kind of insider trading. And so I really think that part of the lesson of all of this isn't just that we need to fight back, but that we need to recreate the guardrails that protect us from this ever happening again.

Amen, Professor, I'm so grateful for this conversation today. I know we went really deep, but I got to say, I'm going to miss Caroline Levitt lying about the price of eggs, lying about tariffs, lying about Epstein, lying about a breakout, Garcia, lying about DEI, lying about the reflecting pool, lying about signal gates. So it's really comforting to actually be here and break it all down, Corey. What's the best way for our listeners to follow you and keep up with your brilliance the other six days of the week.

Well, I should remind listeners wherever you're listening to us. You could listen to us on any audio podcast platform or watch us on YouTube. Push that subscribe button and tell your friends. There is also an oath in the office substack where we go deeper with links to these stories and with additional insights that we weren't able to get to on the show. So check that out. And what a pleasure it is to do this with you, John. It is depressing what's happening every week, but I don't feel depressed because I'm really emboldened by the great listeners that I've heard from who love even things like license plate discussions about constitutional law, and really enjoy these discussions with you every week. It's given me hope that we will get through this.

I want to thank you. I want to thank Wendy and Beowulf and everyone who puts the show together. You can hear me every afternoon noon to three Eastern time on sirius XM's Progress channel. If you don't have Progress, you can hear it as the John People Saying Podcast wherever you get your fine podcasts. My book is called Separation of Church and Hate, and Corey, thank you so much. It's really always a pleasure, and as depressing it as it is, I feel much more well armed to face reality and not hide and vape and watch Kardashians.

So thank you, sir.

And I just add one thing John, which as I know you're going to be on vacation and hope you enjoy that while I know you're working on it's a worker vacation. Yeah, and just tell listeners too to check out my discussion next week with Representative Chariot Huffman about his new book. He's thinking, as you've gotten deeply about religion and religious freedom in this well.

I'll miss you, Corey, but yes I will be in Sweden because over there I appear tam. Thank you all so much for listening, and we will see you next time on the Oath and the Office