Trump’s Self-Coup: The Three Prosecutions that Expose It

Donald Trump personally demanded his attorney general to abuse these people. He he revealed it all because, you know, Professor Racist Grandpa doesn't know a DM from a public post. He he meant to privately message Pam Bondi on his website, Filth Social. And instead, he sent a public post demanding she go after his enemies and wanting to know where the progress was on this. I mean, it's it's more the Department of Send by mistake, Cy. This guy is conducting state business on a failing social media app run out of a Florida strip mall and she's being accused of saving 19 grand on a home loan. Like this man is weaponizing the DOJ through a group chat, isn't he? That's all that's happening here. And there's no guardrails to stop him from doing it.

Welcome to another episode of the oath and the office. I'm John Fugal saying the government is shut down. We've got staffing shortages at the airports. There is chaos throughout the CDC. The house is on recess. The poor are losing health care and the only people still getting paid are the ones causing it. So with that in mind, let's welcome the star of the show, Professor Corey Brett Schneider, the man with the PhD in politics from Princeton and the law degree from Stanford, who classes up the polyai department at Brown University. Of course, the professor is the author of The Oath in the Office, a guide to the Constitution for Future Presidents.

Corey, it's so good to see you. Welcome back. >> Thanks, John. There's so much to talk about. Uh we've been covering of course the president's obligation to uphold the law and the fact that President Trump has been doing anything but shutting it down and with the prosecutions that are going on, the attack on political opponents and we're going to get in depth on them today. Uh the use of the military and the possible justification of the insurrection act. Uh this idea that we've been working on talking about of a self coup is just getting worse.

And so we'll cover it and yet as every week we'll we'll try to find the hope. >> Absolutely. So let's dive into it. I mean we're really looking at a tale of three prosecutions right now. Cory, I mean looking at the prosecution of Leticia James, uh James Comey, and soon John Bolton. Now I got to be honest, professor, I have waited 20 years to see John Bolton punished for lies. Uh it appears he's being punished for telling the truth about Donald Trump. But these these prosecutions all fit into his broader project to weaponize the justice system for deeply personal authoritarian ends. So when you say self cook, let's remind the listeners what do you mean by that? And how do these three individual petty little cases fit into Trump's larger attempt to destroy checks and balances?

uh the idea of a self coup is distinguished from and I should say you know many of our listeners know this idea they've been with us for a long time but we of course are growing so rapidly we have many people uh tuning in for for the first few times and so the idea is that we think of a coup often as a military takeover from the outside but as political scientists have identified many instances of coups happen from the inside uh and they tend to actually happen especially in presidential systems because of the danger and the strength of the presidency of the executive branch. And what it refers to from the inside is the president of the United States, the chief executive destroying literally the other branches, the destroying the power of Congress, maybe leaving it existing and just as just a formality, but stripping of it all power, destroying the judiciary and um its supposed check on abuse of power.

Uh, and what you're seeing in each of these prosecutions is a not just a nonjust prosecution and not just a shutdown of the opposition. And I should say too, if I were to pick one criterion of how we would tell whether we were in an authoritarian regime, it was whether or not we shut down the opposition. And that's exactly what each of these three cases are. But they're more than that. The the a symbol of the shutdown of in J in the case of Attorney General James, the rule of law. What is she being prosecuted for? It was for pursuing the law, looking at uh the fraud cases of of Trump's businesses. What is >> No, no, no, Professor. She's being she's being persecuted because she proved to a jury that Trump's a crook and now he's going after her for it.

>> That's right. I mean, I think, you know, he's engaged always in a in a game of uh I know you say I am, you know, but you're the same and throwing it back any accusation. So, um he's accused of fraud. She's going to accuse him of fraud. Sorry. He's going to she accuses him of fraud. He's going to accuse her of fraud. Uh and I'll keep going. In the case of Comey, you know, after Nixon, there really was a movement to make the FBI independent. There had been so many abuses since the founding of the FBI with Jay Edgar Hoover and others. But after Nixon, there was a concerted effort to instill norms of independence.

Now, if Comey represents any vestage of that independence because of his resistance and trying to help Trump and going along with the investigations into Trump in the first term, uh, this is a payback. It's, you know, we do not want that FBI to be independent. We want a cash cotel, somebody who's going to just cater to our whims. And I'll say the same about the foreign policy apparatus and the intelligence apparatus. If there was any independence, I'm not a fan of Bolton at all. And I agree with you. This is not somebody that I agree with in the least. And yet free speech can't be about that. Democracy can't be about who we like or dislike. And like him or not, he did have independence. He's a major critic of the president. And so this is an attempt to send a message to the foreign policy world that you better not disobey me or I'll come after you.

It is a a strengthening an enlargement of this idea of the self coup. >> I mean, so what exactly do these three prosecutions and again Bolton hasn't happened yet. It might not happen. But I want to remind our listeners, Donald Trump doesn't do this with any intention of actually winning in court. They don't care that there's no merit to these cases. This is done to bankrupt his foes because he has a crypto scam and he can afford to set money on fire for the rest of his life. So, it's no trouble to him.

And this actually gets into how the courts don't really have equal justice when someone is able to haul people into court and bankrupt them using the courts as his own personal petty tool of vindictiveness. But what are the most obvious signs, professor, to you that these are politically motivated and not grounded in law? Again, they're the cases aren't going anywhere. And they may still be here long after Trump leaves office, but it's done to bankrupt these people and and it's not really grounded in the Constitution, is it?

>> No, it's not grounded in the Constitution. It's not grounded in the rule of law that, you know, the president takes an oath to abide by the law to preserve, protect, and defend the Constitution. But these prosecutions are all about Trump's own ego and going after his opponents. And we can see this most clearly by looking at what the charges are and what's happened in the case and looking at what are supposed to be fact-based inquiries. So in the case of Attorney General James, the independently, by the way, elected attorney general of New York, the framers, by the way, looked to New York and thought, "Oh, maybe we need an independently elected attorney general the way New York does in order to ensure that we don't have political prosecutions." And then they said, "Well, no, we could kind of trust that the attorney general within the executive branch will work out." and you know that turns out to be a mistake. How do we know that? You know, we had career prosecutors looking into the case against her, which has to do with um uh supposedly making false and fraudulent stains uh claims on a mortgage application about >> she had a secondary mortgage application

on a second home. Oh my god. She saved what? 45 bucks a month. >> $45 a month. And when they looked at that, that's exactly what they said. This isn't a serious crime. you know, Trump, of course, and his fraud at the accusations was often millions of dollars that were at stake. Um, and you know, in her case, it was minimal. She has family living there. You know, there is a real argument that this really was uh that she didn't fall out. Certainly not intentionally falsely or not falsely, but anyway, they looked at it. They also look at similarly situated people. You can't engage in selective prosecution. And so one way that a judge is supposed to figure this out is to ask well were other cases where we knew about this kind of crime brought and you know there are multiple members of Trump's own cabinet that ProPublica has uncovered in which they did almost the same exact thing and yet of course they're not going to be prosecuted. So all of that points to the idea that this is a selective prosecution that it is vindictive. And you know the the unfortunate reality of the the American

criminal justice system is there are tons of crimes on the books. If you look at anyone in depth enough, you might be able to find a crime for them because there are so many regulations. And when you look and look and look the way they did with her, um you know, you're going to uncover something. And anyway, that was the conclusion of his own of his own justice department was, you know, not to do this. >> That's that's lawfare, isn't it, Cory? I mean, apparently revenge is now a full-time job at the Department of Justice. They they say that attorney general James misrepresented a secondary residence on a loan form. And every veteran prosecutor, as you know, in the Eastern District of Virginia, refused to pursue charges. One resigned in protest.

And and again, I I think this is going nowhere. And I talked about this on Steph Rule's show the other night on on MSNBC because he revealed it all because you know, Professor Racist Grandpa doesn't know a DM from a public post. He he meant to privately message Pam Bondi on his website, Filth Social, and instead he sent a public post demanding she go after his enemies and wanting to know where the progress was on this. I mean, it's it's more the department of hit send by mistake, Cory. This guy is conducting state business on a failing social media app run out of a Florida strip mall and she's being accused of saving 19 grand on a home loan. Like this man is weaponizing the DOJ through a group chat, isn't he? That's all that's happening here. And there's no guardrails to stop him from doing it.

>> Yeah. I mean, I've talked to about the evidence of or lack thereof against Attorney General James, but then when you look at this TR truth social post where uh it looks like what he was doing was trying to send a private message again to to the attorney general and he wound up showing it to all of us. You know, it's as if Nixon published the Watergate tapes rather than secretly recording them. And what you know, what it says is, "Yeah, I want you to go after my opponents." Now, that that should have meant, you know, that this never got to the stage that it was at. But the problem is, as much as she isn't guilty of a crime in our criminal justice system, it's partly an attempt to try to get her to to spend money, but it's also the fear that things might go wrong. And when you're falsely accused, as much as we want to think we have a great system, uh we might not. It might be that, you know, for instance, the grand jury, you know, the the the cliche is that grand jury will indict anyone, even a ham sandwich. important points throughout American history. Grand juries haven't acted at the behest of government in an abusive way. But here they did. So now it's up to the judge to

say things like what I just said to look at the other possible prosecutions that could have been brought and see that this is a selective prosecution. But we might get past that level. This judge might want to defer if you get a bad judge, which is more than possible. and we might be stuck with, you know, her decision of whether or not to take the gamble that there'll be members of a jury, a petite jury, not a grand jury this time, that will find her not guilty. Um, but she might not want to do that. That's the chilling effect. That's what's so scary about this, too.

>> It's very expensive. And think of the risk. You know, she could spend decades in prison if things go wrong for her at trial. It is a gamble. Now, I don't think she's going to uh accept a plea bargain, but that's how this system works, that you you threaten huge amounts of time in prison in return for avoiding the the a trial altogether. And that's why this is so dangerous to have the the weapons in his hands. >> He's going after the woman who convinced a jury that he was a crook. And if any other president in history publicly DM'd an attorney general demanding they prosecute an enemy while the government was shut down, that person would be impeached by lunch, right, Cy? I mean, but now you've said that a judge should dismiss all three cases and and as you just said, we might have to rely on juries, but you said juries are a legacy the founders gave us, one that's too weak a restraint on presidential power.

Corey, what did the founders intend juries to do in cases like this? How have we drifted from their vision? >> Well, look, you know, they were very concerned about abuse by a king. That was one of the most important ideas to them, and they did a number of things to try to limit that abuse. And one of them is the jury system itself, that it would be a jury of one's peers that would decide on guilt or or lack thereof. And she doesn't have to be found innocent, by the way. It's just that the prosecutor doesn't prove the crime beyond a reasonable doubt. Um, but you know, the reason why I think it's an inadequate check is because the very threat, the chilling effect that we're talking about is enough to scare people.

And even if it doesn't scare James herself, it might scare um others who are in danger of this kind of prosecution into silence. And authoritarianism doesn't have to result in people actually being in prison. It just has to be a credible threat of being put in prison. And you know, I believe James uh Bolton um and Comey will all stand up to these charges because they're all frivolous and I think they have the resources by the way, including James who's uh fundraising and has other attorneys general helping her to fund raise that they will successfully fight back. But there are others in the government who, you know, if if faced with with that kind of threat, will will be quiet. And many Americans at this point are being quiet. As much as I'm looking forward to the no kings rally and and to other acts of protest and we'll talk about Portland, many people are scared. And um you know when you see these prosecutions, it's no longer just the threat of or an attempt. It is a coup in progress. And it is working.

Unfortunately, as much as I I need us to push back, we all want us to push back. >> Professor, in 50 years, this party has gone from I am not a crook to a crook is not a crook. And I mean, that's that's where we're at right now. And um and he does still have 34 felony convictions that have not been cancelled and never will be. I I I had an experience this week, Corey. I'm on my book tour and I just did my first gig in Chicago. I've played many shows for the troops, but I've never done a show in an active violent war zone before. And uh wow, the war tour in streets, let me tell you. I mean, getting my deep dish pizza was a little bit challenging.

>> How did you survive, John? I don't understand how you made it back. just stuck in cover. >> The folks that came to my show, we had a great soldout house and the folks that came were all telling me about how they were in the protest today. They're going to the protest tomorrow, but my Uber driver back to my hotel afterwards told me a different story. He told me about how he drives to the neighborhood where Latino folks live and because they work in restaurants, he tends to drive them all home late at night and he gets most of his after midnight Uber fairs from Latino residents of Chicago going home when their restaurant jobs fold. And he said his job has been empty after midnight. That people aren't leaving their houses for fear. And we've seen Trump now deploy armed federal agents into these cities under the lie of restoring order. And now he's threatening to use the Insurrection Act, which I've learned quite a bit about from you, professor. It dates back to the early republic. Um, and I know the purpose of the Insurrection Act is to restore the normal operation of courts, state government, and local government.

Uh, and the operation of federal law when state and local institutions refuse or are unable to do so. We are nowhere close to that. And yet, they're using it anyway. What dangers, professor, should we be wary of when a guy like Donald Trump who can't stop lying claimed? I mean, he can't stop lying. Biden sent 274 FBI agents on January 6, 2021 when Biden wasn't president. Guy can't stop lying. So, what dangers do we face when this guy sends troops into American cities under false claims of unrest?

>> Well, we talked in depth and I urge listeners to go back and listen to it about the history of the Posi Commatatus Act. It's really not proud history as a way of shutting down federal civil rights enforcement, but as we said then, it's one of the best resources that we have in fighting back against this attempt to use American troops in in our own cities to shut down descent. The problem is, and now this is catching the story up to date because he is threatening to do this. I talked about the possibility that he might do it, but now this is real. um is that there's an exception to posi commatatus called the insurrection act and it's been used um uh uh at various points in in um the the Rodney King moment that was used by uh George Bush it was used much earlier most famously by President Eisenhower to enforce a court order in Little Rock Arkansas. Um, so the idea, as you said, is to enforce liberty, enforce rights, and to enforce, if need be, the law if there's a a temporary breakdown in in in in law enforcement. But that's not

what's happening in Portland as we see with these amazing protests of people dressed as uh amazing animals and these wild costumes. Uh, it's not what we're seeing in Chicago. And uh instead what's happening is a lie that he's using the fact that we live in two different information universes and the Fox News universe and and universe that he controls on truth social is spreading the lie that you know without without any irony that there is a breakdown of law and order in Oregon and Portland and in Chicago and he absolutely needs to use the military. Now here's the problem.

>> We have had um push back. Judge Brier for instance in LA said no way. There is no insurrection. That's the common sense legal thing to say. But there are many judges who are operating with the background theory for instance of the unitary executive theory who just push executive power, executive power, executive power. And what we saw for instance in the travel ban case was the idea that when the president makes a decision about uh lawlessness for instance um that and security in the travel ban case specifically about security and the fact that this wasn't a Muslim ban the president's opinion it was a breakdown in cooperation with foreign em embassies analogously I can imagine some judges say some will say well we're not going to second guess the president the president knows the answer to this now that is not good law that is not law at all. It's the abandonment of it to the executive branch. But this idea that the president knows best is so prevalent among much of the judiciary at this point. And I hate to say there very well might be five votes for interpreting the insurrection act along

those lines. During the last administration, I pushed very hard um unsuccessfully uh and without really any uptake, there was some discussion about it for an amendment to the insurrection act to make it so clear that it couldn't be used to shut down legitimate protests. Now, the first amendment should make that clear, but the way that I think I worry that some of the judiciary will will read it is discretion, discretion, discretion. The president knows best. And that isn't law. That's authoritarianism. And that's why part of the story of this self coup is about the judiciary over and over handing over power to the president to destroy democracy. I hate to say it, but that's what I'm seeing.

>> But again, to be clear, invoking the insurrection act is not the same as martial law, right? Under martial law, the military replaces civilian government. Under the Insurrection Act, the military acts to reestablish the operation of civilian law, which has not broken down. So, invoking the Insurrection Act would be illegal. And it's hard to think it wouldn't be self-sabotaging by by Trump. But, I mean, what legal limits, if any, remain on his power to invoke this act? And and what do you think would or could happen if he does? Well, I mean, just to reiterate your point about martial law, but to to to lean into it a little more, you are correct. There is no category of American constitutionalism called martial law. And in fact, often the courts and some of their most famous decisions in the Youngstown opinion, for instance, they reject the idea that there's some sort of inherent emergency power in the presidency. And in the in the case about economic emergencies that we'll get to later, that's part of what I'm arguing in my amicus brief that that there are no emergency powers. And in

fact, they're limited whenever they're um in in that case when they're authorized. But here's the problem. That's all the law. That is what the law requires. I'm confident in it. But what are courts going to do? And as much as they would never say there's a thing called um uh there's no no provision of military rule or martial law, they might enable the president so much through enabling acts like the insurrection act to use his his own discretion, Trump's own discretion. So much so that it becomes a kind of de facto military governance even if legally you're absolutely right there is no such thing.

That's why this is so scary because all the things that are supposed to constrain a president the other branches of government the judiciary the congress um the the posic commatatus act and its small exception in the insurrection act the exception expands and expands. That's the danger until it becomes the thing that's governing us. And until, yes, we're we're in something like military rule at the hands of, you know, president. It's not military rule. The president is commander-in-chief. He commands the military, right? Uh and yes, that is so scary. But can I promise people, you know, I did a lot of that in Trump 1.0 when you and I, don't worry, the courts will take care of it. And you know, that's naive at this point. We see them again again.

>> But I mean, the it's their job to take care of it. the courts were, I would say, one of the greatest forces of resistance. I mean, right, that was one of the guardrails that >> we know that the the House and Senate won't hold against this guy. And I know we have to take a break or Wendy's going to throw me in podcast jail, but really quick, you know, I I'm with you. I love the creativity of the protest, especially the folks wearing their inflatable animal costumes and it's just brilliant. It's the creativity of it and and I agree with you that Portland's leading the way. And I do think that that protest, nonviolent resistance is still our best hope. And the more creative the better. I mean, if you want to go biking in the rain naked in Portland, what? Not my thing. But God bless you. Corey, as we go to break, why is it so important to remember that civil resistance and public demonstrations still matter in the face of this authoritarian legal strategy, especially when so many Democrats are MIA and the media is too. Well, it's like the power of satire and we've talked a lot about South Park, for

instance, and Jimmy Kimmel and others who are resistance, but it's particularly important here, too. You know, social movements can be more or less successful depending on the message and the strategy that they employ. And here, as Trump's claim, and this is what we were just talking about about the insurrection act is lawlessness, out of control violence. The more you can mock that idea that you can visually show it not to be the case, the better chance it is that judges will be too embarrassed to say, "Oh, we have to trust the president." The idea that there there is some insurrection going on with inflatable animals doing these funny dances and doing, you know, some something that looked to me like the electric slide or people can correct me, whatever dance they were doing together in unison in in Portland. It's just mocking the idea that there is some kind of out of control violence. And shout out to my many friends in Portland, some of whom are going around shooting videos in front of the ice facility and showing just how how >> non they'd love to have you. They'd love to have you naked on a bike. You got to get over there. You got to get over there. I'm going to pass. How much is

that going to hurt your tenure? Come on. >> Somehow be absent for that one. Although >> true. Naked naked on a bike in one protest. Really? That's going to take tenure away, Cory. Come on now. >> But the, you know, the main idea is it's working. It is showing America that this isn't violent and it's doing it in a way, you know, the the nonviolence of the current moment doesn't have to look like the nonviolence of Martin Luther King Jr's uh nonviolence. It can have a different form of expression. And you know, these these these blown up farm animals to me seem pitch perfect.

>> Okay, we got to take a break. Back in just a moment. This is the oath in the office. Welcome back to the oath in the office. I'm John Fugalstein. During the break, I received a seats and desist letter from Portland demanding I do not visit the naked bike ride protest. So, I'm I'm I'm not here to blind people. I'm happy to comply. Professor Brett Snider, uh let's talk about child torture for a minute. The Supreme Court may soon be hearing a case challenging state bans on the charming form of child torture we call conversion therapy for minors. um arguing that such bans against torturing children that are completely pseudoscientific uh these bans violate the free speech rights of counselors. I guess the rights of the children don't matter too much.

But you have called conversion therapy an abusive practice masquerading as religion. I I think that's a polite term for what it is. But Corey, why is it so crucial that states have the power to ban this? Well, you know, the first amendment is often used as a weapon to destroy different elements of democracy in the modern universe and in the modern courts universe. The most prominent example uh is using the first amendment to destroy campaign finance laws, to destroy the regulation of our democracy, to ensure that we're not an oligarchy, but that we are one in which the voice of the people matters. and the first amendment through Citizens United and other cases has really uh destroyed in many ways the the checks that we have against oligarchy. And what we have here in this case is another first amendment claim. The argument, just to be clear, is that what conversion therapy laws that prohibit it do is they cut into the therapists free speech rights and that they have rights in the first amendment um that extend into the um therapeutic universe. And to

my mind, you know, that just gets it entirely wrong. This isn't about free speech. It isn't about whether you could go, you know, anyone could go on into the media or or in the street and give a speech about conversion therapy. uh you're free to say it's bad, but what you're not free to do is to use a license and to in a therapy or in in a therapeutic environment to inflict harm and to use a form of therapy that we know not only doesn't work in the sense that people claim but that inflicts harm on minors uh and and to do so and you know the the the the the Republican party of today often argues for instance against all sorts of therapies that they claim harm minors and here this is a therapy they like. So all of a sudden they're using the first amendment. And when I say the first amendment, the free speech clause is being used as a weapon. I mean, it's very selectively there's not really a concept here. It's just let's use it when it when when it suits us. And I don't think any of the defenders of the idea of con of conversion therapy, having a first amendment protection, uh

really believe that uh the first amendment applies when when children are going to be harmed. And you know, that's what's going on here. And so it really is uh digging into the ability of professionals to regulate themselves to have protections for children. >> Thank you. I mean, I can't believe we have to talk about this like in this century these these First Amendment arguments twisted to protect abuse and calling it speech, right? I mean, Corey, what is the what's the legal difference between protecting free expression and protecting harmful damaging to children's pseudocience under the Kaiser religious belief? I guess we have to talk about this delineation uh because grown-ups are making us do it.

>> Well, I'll get into the weeds a little bit. Um, you know, I would say that this is in the realm of professional regulation, and the court isn't going to say this, but but I'll say what I think that once we're in the realm of harming children, the question of whether or not in a specific context, you know, there are all sorts of instances where the First Amendment clearly applies, you know, if you're trying, for instance, to shut down free speech, for instance, in those three prosecutions that we were talking about, that's almost the paradigm of a violation of the First Amendment. But what about in the licensing requirement that you not harm children? That just seems totally inappropriate to me to even be a free speech issue in the first place. But let's say I'm wrong that it is a free speech issue. There still is an idea of a compelling interest narrowly tailored that creates an exception to the First Amendment. In other words, that there's some danger so severe that the First Amendment will be overridden. And at minimum, that's what they should say here. that this conversion therapy is so dangerous to the psychological well-being of minors that it it's been linked to suicide. Uh that that all

those dangers are so severe that the First Amendment shouldn't apply. Uh and um that that's where uh that's where I uh come down that this isn't a First Amendment issue at all. But even if it is a free speech issue, there's an overriding interest, a compelling interest that um should should override it. Now, what the court's going to say is is not what I'm going to say. Unfortunately, I think we've we've in a world in which they're they're expanding free speech in all sorts of ways that really have nothing to do with its conceptual foundation. As Brown professor Alexander Mikkel John, who and I'm not just saying this, he is the most important figure in the 20th century history of free speech. He tied it to democracy. It's about strengthening democracy. And what this does is abuse democracy.

>> I completely agree. And it's bizarre because what happens if the court sides with these challenges, Cory? What if they do? What precedent could that set for future conflicts between public safety and batshit religious extremism? >> Again, therapy has nothing to do with Jesus. I can't say it enough. It is a violation of the sermon on the mount. These people have no religious case for this. I'm sorry. Go ahead, please. You know, I think it sends a green light to uh all sorts of people who want to engage in anti-gay activity in anti-gay mentoring as they would call it really is a kind of abusive practice under the guise of therapy to go forward. You know, what law is about isn't just what's allowed or not allowed or a particular case before the court. It's about a norm. and spreading the norm that anti-gay bigotry in the therapeutic context is fine is I I worry where we're headed that the court is is really engaged in it and it's to be understood

as part of the assault on trans rights on gay rights that we're seeing uh throughout the country really in every level of government. >> Yeah, just punching down, man. Punching down. That's all it is. And again, has nothing to do with the teachings of Jesus. It has to do with conservative Christian control of society. Sorry, I know I wrote a book about this and I never get >> I was going to say John, you know, separation that I can talk about it. >> This is a perfect instance of of where we need to separate church and hate and uh in the guise of love, what is really an assault on minors uh shouldn't be allowed to continue. And it's not a get out of free uh jail, get out of jail free card to claim that this is my religious belief. They're claiming, by the way, free speech, not religious freedom in this case. But as you've been educating America um uh and all of your fans are are watching you on the Daily Show and elsewhere, fans of this podcast, you know, to to do this in the name of Christianity uh is is is not true to um to to to the to the

teachings of of Christianity or Jesus as you say. >> Well, professor, I want to move on to a a little game here uh that you taught me called what would the founders say? Uh the Supreme Court is, as you know, considering more cases rooted in a term that you've taught us a lot about, the unitary executive theory. Can you can you once again just explain what that is and more importantly how far that stretches the founders's vision of presidential power? >> Uh thanks, John. And I love the idea of a new segment that we'll return to every so often on the Oath in the Office podcast of actually looking at what the framers and the founders thought about the American Constitution as opposed to what the so-called originalist branch says they thought. And one of the places to start to separate things out uh is the unitary executive theory. So the unitary executive is based in the idea that the executive power is vested in one person, a president. And what what defenders of this theory including Justice Scalia and uh Robert Bourke uh

and and many scholars actually conservative scholars have convinced us of is that all they're doing is taking the original 18th century understanding of what a president did and um uh you know telling us that and that's not at all what's happening and I was glad to see Adam Liptac uh preview uh some of those um uh including a great scholar from the uh University of Michigan um and and others Jed Sugarman at Boston University who have really been doing the work of trying to uncover uh what is actually happening in the 18th century.

How did they think about the executive power and this might shock you but it turns out that it didn't mean what the unitary theorists say it meant. It actually meant in many ways the opposite. It meant to execute the law to take laws on the books and without total discretion do what the law is required to as George Washington makes clear that there's a kind of respect for the law being above the president. The second inaugural of Washington of course the idea that he just took the oath and uh if he violates the law subject him to constitutional punishment and criticism.

So it's an idea of limited discretion executing the law and the legislative power is vested in a in the Congress in the law makingaking body and to respect that means not not abandoning it. So right but >> so one last sentence which is which is we have this case now coming up about reversing Humphrey's executive or allowing the president to basically wipe out the protections that Congress has put in for independent agencies and what scholars are really looking at what the founders said is you know they did similar things they believed for a long poor period of American history uh from the founding on that yes congress could protect the law by limiting the president's power to hire and fire are at will. So the idea that the unitary executive theory is based in the founders's ideas is just wrong and and and you know now this scholarship which was obscure I've been following it for a long time is now really important because it gives the lie to the idea that the Supreme Court is truly originalist or acting in in combination

with the founders. And in the same way, I'll say, John, that you have really led the the the battle across America to revive and protect the ideas of Christianity and the ideas of Jesus from Christian nationalism. I want to do a similar thing for the founders to protect the founders ideas of a limited presidency from being destroyed by the so-called unitary executive theory. >> I completely agree. I I I just what would the founders Corey we're in an age when you've got it takes a nine nothing Supreme Court to force the attorney general to follow the law thinking about Kilar Garcia. What would the founders say about the claim that the president can direct the DOJ to defy court orders?

I mean I mean he is the law. That's that's the argument we're getting right now. And it's all coming down to how many obedient flunkies there are. >> That's right. And you know, I can't think of anything further from the founders ideas. There's a case that's the bedrock case of constitutional law. I'm actually updating my case book right now that's going to be used by 1L law students and also by uh students in undergraduate institutions. And as many case books do, I focus in very early on on Marberry versus Madison, which stood for a simple idea that the Constitution is above any branch of government and that the court has a duty to protect it even against a president. That's so crucial. And um that that principle is just being run over by uh this uh you know not founders based theory not historically grounded idea but really an idea of authoritarianism dressed up with a fancy name often of the of the unitary executive.

>> Well then let me ask you about the tariffs because uh comover is now citing the international emergency economic powers act also known as IPA to to justify 100% tariffs on China. He's claiming emergency powers to do this. Now, Corey, I'm terrified of this because I buy a lot of Trump Bibles and those are all made in China. Like, most of my Trump merchandise is made in China. So, I don't know how much it's going to cost me now. But what do the founders believe about presidents creating emergencies to expand their power?

>> Wow, I love this segment. Um I'm uh working on you know there there are parties uh representing challenging the tariffs and I've talked about the team of Neil Katiel and Ilia Somim um and and Judge Michael McConnell who are are a a group of ideologically diverse people who really believe that you can't just unilaterally impose random tariffs and and that you can't use this law the emergencies uh the economic emergencies act passed in the aftermath of Nixon to do so. So, what's my my role? Um, I'm not going to be in court arguing this, but I have an amicus brief that I'm doing with a pro-democracy group. And what we're really doing is two things.

One is talking about the period after Nixon, which is a period of hope for those of us who are looking for it, where uh presidential emergencies were being declared for very long, unlimited periods of time. And this was a period where the Congress said, "No, we're going to limit that ability to have these emergencies." And so the the irony is they're using this limit on on emergencies that certainly didn't include tariffs to expand presidential emergencies in for instance in this uh random arbitrary I would call it China tariff that that that he just seemed to announce out of nowhere. But on on our theme of the what would the founders do?

Think of the idea of no taxation without representation. They were talking about tariffs. there was a resistance to the British king's ability to impose taxes and tariffs. Um, uh, parliament fought back in the 17th century, uh, the petition of right and the framers were aware of that. So when they said no taxation without representation, they were talking about the power of Congress to control whether or not we were going to have tariffs or not. That's what the the war was about. the declaration references. The Constitution references Congress's ability to regulate uh tariffs. And what all of that amounts to is that, you know, the Constitution's foundation, by the way, tariffs were the way that money was raised. When they talked about taxes, most of the money was coming from tariffs. So, the idea that all of a sudden the president is just usurping that congressional power is yet another part, a more subtle part, but certainly a big part of this self coup. And uh it's really an honor to to write a a a amicus brief uh with this group as co-authoring with them although

they're representing me and I I'll add some colleagues uh to to get to the idea that no taxation without representation is about restriction on the king's power and then the president's power and a reclaiming of the power of the people through Congress. Right on. Before the break, let me just ask. I mean, how has Congress allowed this kind of emergency power creep to become normalized, professor? >> Well, I mean, it's it's a a combination, a perfect storm of a president willing to grandize power at all costs and then I think equally harmful, and we've seen this throughout American history, a a court, a Supreme Court under this fake originalist, fake founders theory, uh, handing over that power again and again.

and you know they aren't acting uh in terms of the law. You know we you and I have long abandoned the idea that this isn't a political branch. We know what they're doing that they're enabling in this partisan way the worst kind of authoritarianism. But I do think that the last remaining believers in conservatism in originalism, if the court allows these tariffs, if they don't push back in the way that I'm arguing in the amicus brief and that the um those lawyers that I've argued uh are pushing, if if they go for Trump, that that's it. I think you can't be a principled conservative in any plausible way and think that this is consistent with your values. I think we're already there, but as a predictive matter, I think the last remaining conservatives are going to abandon not just Trump, but abandon.

>> They don't care, by the way. They don't care. They're not conservative anymore. They don't care what you think. They don't care what the law says. It's all about winning. I know. Wow. Imagine if we had a second party. Uh, all right. We got to take a break or Wendy's going to throw me in jail. We'll be right back with more of the Oath and the Office. Welcome back to the Oath and the Office podcast. I'm John Fugle saying, "Hey, Professor Brett Schneider, before we even go any further, uh, what's the best way for our listeners to follow you and keep up with your steady flow of brilliance the other six days of the week?" >> Well, certainly subscribe if you're listening on Spotify or Apple Podcast, wherever you get your podcast. We have 399 reviews on Apple Podcast. So, if you want to be 400, I don't know if it'll still be uh if we'll be over that mark when you listen to this, but you might be 400. We're growing every week. people really uh tuned in and engaged with uh Jake Tapper. The uh Malcolm Nance episode uh really blew up uh on YouTube for instance. And so, you know, wherever you're following us, if you could subscribe, uh if you could review us on Apple podcast uh and then we've launched

a new newsletter every week where we're just kind of reflecting and summarizing what we're talking about on Substack. So, f follow the oath in the office there. And uh wow the podcast is is is growing every single week uh whether we have a guest or not and and people are are writing to us. Uh we are collecting um listener uh mail. So corey. Schneidergmail.com. I'm building them up and I think in a in a near episode we'll uh do some of that. And uh thanks for building this great community with me John. It's really been such a pleasure and it couldn't be a more important time to be doing it. Oh, listen. I'm honored, Corey. And I want to just say if you're a congressperson out there listening, I know uh Mike Johnson's only convened the House for 12 out of the last 80 days. So, with 68 days off, full pay, full benefits, while federal workers are being told, "Good luck. Go Door Dash your pension." Uh maybe some Congress people can call us and join the show sometime because I know you have the free time at the moment. Um, >> we do have, by the way, just as since you bring it up, in two weeks, and you

know this, but I'll tell the listeners, one of the best members of Congress, the people fighting the fight against Donald Trump, uh, Congressman Ted Lou is going to be with us, uh, two weeks from today. So, uh, don't miss that and be sure to subscribe so that you don't miss it. >> Absolutely. So, I mean, right now, obviously, we're getting ready for the court to do what they do and see what major cases they take, but I wanted to ask you before we wrap up the week, Corey, how much power does this Supreme Court now hold in in in shaping or or in breaking the constitutional limits on presidential authority? I mean, it seems after the immunity ruling, there's not much more lawlessness they can sanctify.

Well, I just think, you know, the the way that we've always taught constitutional law from Marberry versus Madison on, from cases like Youngstown limiting the president's emergency power uh during the Truman era, uh was as a check on power. And that's the usual story that the framers um Hamilton and Madison believed in that impeachment through the Congress and and judicial review were going to check abuse of power. And one theme that is emerging from all of our conversations including today is that the court is enabling not protecting dem democracy that it's enabling the abuse of power and allowing democracy to be destroyed. Part of how we recover in the long term and we need to talk about what legislation we need to protect against this abuse of power.

Legislation for instance that would narrow or even eliminate the uh immunity of a of a sitting president. um likely we would need an an amendment to overturn the immunity case, but we could through legislation really narrow the kind of official acts that are immune. I think we've got to do that no matter who the president is. And I think we've got to talk about court reform. Changing the structure of this Supreme Court because what we have is a long-term danger to democracy. And so the idea that we're going to leave it untouched uh is really a problem. And so I'm going to start thinking about guests who can talk to us about various ways of reforming the court. Some proposals, for instance, involve uh rotating justices up and down from the court of appeals. Another proposal, of course, is to add justices to dilute the the vote of existing justices. Yeah. But this is not a court that is protecting the law. It's one that's abandoning it. And we're seeing that again, >> you know, at at the same time, like what reforms might be possible to protect democracy? Because as you have told us

many times, our institutions were not designed to handle um a lawless executive who's also a racist reality show clown with no impulse control. >> Yeah. You know, the the ability of court reform, which is, you know, I I for a long time was saying we need to revive, you know, some version of the court packing plan, for instance, adding justices in order to um dilute the votes of these existing justices. And a lot of people don't like that. So they prefer the term court reform which often means more subtly diluting the votes of those justices in order to um uh have a restoration of of law and there are various ways of doing that as I said but there also is ordinary legislation and as far off as this is right now we're not going to get this legislation right now but we need to think about what a democracy would look like again and if we're either approaching dictatorship or even in dictatorship what will the recovery from that look like? What will the laws be? And there are several. And we can look to the 1970s postNixon

period for inspiration. One, a law like the independent prosecutor law or what formerly was called uh the ethics and government act signed by President Carter that allows not the attorney general to investigate close friends or enemies of the president, but creates independent prosecutors outside the Department of Justice who are accountable to Congress and to courts. >> Right? that kind of system is what we desperately need as we watch these political prosecutions of James uh of Comey uh and potentially as you said it hasn't happened yet but we there's a lot of reporting that the prosecution of Bolton will begin soon and the attempt to indict him. So we we need that. We also need at the same time to protect against the sword of the president to to to be able to indict a sitting president and that independent prosecutor law might be the way to undo the immunity case. Uh a war powers act.

>> I think we might have to wait we might have to wait for a Democratic president and force them to break the law and then because if a Democratic president did it, they'd indict you know that >> they would. I think and you know but here's the problem. I mean and we really failed during the Biden presidency to do this. We had a moment where we could have been thinking about structural reforms to protect democracy against a future Trump or JD Vance or somebody like that or a democratic president. Of course, it's possible that would uh as in the 19th century uh try to destroy democracy and I'll mention Andrew Johnson as an example of that. Uh we need to start to think about that and it isn't the near- term and it might seem a bit utopian but if we're going to talk about the dangers of dictatorship, we also have to talk about the hope of democracy. So, that's one thing going forward that we'll continue to talk about possible reforms uh that actually would work. And I'll mention one more, a reconstituted or two more, a reconstituted emergencies act to limit the power of the president to act unilaterally under so-called emergencies. And here's the most important thing that I don't want to

forget that really goes back to our conversation in depth to amend the the insurrection act to make clear that it can't be used to uh simply use the military to engage in policing for or to worse the shutdown of protests. >> Right on, professor. I mean, we've covered a lot of ground today. We've only got a minute left, but when you look at this moment in our history, all this corruption, all this attempted censorship, this creeping dictatorship, what's given you hope that the Constitution will still hold for the next 250 years? >> Look, John, I think that the fantasy that it's really Congress that saves democracy or the court that saves democracy has never been true. that we often teach that in civics's class, but we know from the sedition crisis that the court engaged in the prosecution of political enemies of President John Adams or the Dread Scott case easily the most evil in American history. Way worse, as horrible as what we're seeing now is, it was way worse. Denying black Americans throughout the country, not just enslaved people any rights under the Constitution. Those courts, those

that Congress, those haven't been the checks. It's been the people. It's been people like Frederick Douglas pushing back, people like IdaB. Wells and William Monroe Troder reclaiming the American Constitution and using the vote, using elections to put people in the office of the presidency that are going to reclaim it. We have been here before and my mantra is uh we will recover now as we have before. >> I want to thank everybody for joining us for this week's episode of The Oath in the Office. I want to thank of course Wendy and Beaolf and everyone who puts it together. And please send us your emails, send us your thoughts, send us your social media, your your your your comments and your questions and your veiled threats. We'd love to have them.

And uh you can follow me. >> Maybe not that. >> Maybe not that. You know, we'll we'll get those either way, Corey. You can follow me at John Fugles on all the socials. I do a show on SiriusXM Progress every night. And we're a free podcast called the John Fugles podcast every day. And uh my book is called Separation of Church and Hate. Four weeks in counting on the New York Times bestseller list. Please check it out. And and professor, any final words for our evil army of the night? >> You can find me on um blue sky democracy prof. Of course, my book is and the book the theme we've been discussing the presidents and the people, five leaders who threatened democracy and the citizens who fought to defend it. Um uh you can it's now in paperback I should say and uh maybe in a future episode we'll talk about the the relevance of the book in more depth. Um but look for it wherever you get your books. Well, in an era where some Americans worship gold toilets but despise the Americans who clean them, I am very grateful to you, professor, for your wisdom and uh and for our audience. Thank you everybody and thanks again for joining us on the

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