Trump’s War and the Imperial Presidency

We're certainly not talking as much about Epstein. We're not talking at all about 92,000 jobs last month. >> bottom line is when you come back to the Constitution and the founding, he is the nightmare of the founders. The power of the purse is with Congress. We're not seeing them use that at all. They're just handing over power after power. As we watch this illegal war, maybe it's time to rein it back in. He literally is making it extremely easy for a future war crimes tribunal to put him away for life by saying that. He's boasting about it, Corey. >> We're headed towards dictatorship, partly because of a Supreme Court that's enabled this president.

>> Welcome to another episode of The Oath and the Office starring Professor Corey Brettschneider. I'm John Fugelsang. I hope everyone out there is enjoying their war. We're certainly not talking as much about Epstein. We're not talking at all about 92,000 jobs last month. And it's a pleasure to be with you at a time when Well, it's not really a war, is it? It's an excursion now. It's It Trump said it's an excursion. It's that which is more like a Costco run, you know? In in a couple of days we went from total victory to oops, gas prices. This is why I am so glad Professor Brettschneider is doing this podcast cuz I need someone smarter than me, more moral than me, and a better breakdancer than me to make sense of the world. Professor Corey Brettschneider is the author of The Oath and the Office, a guide to the Constitution for future presidents, as well as The Presidents and the People.

He is, of course, a man who enriches the lives of students in the poli sci department at Brown University. Professor Brettschneider, welcome back. Thank you, John. It's pleasure to speak with you, as always. I'm really looking forward to the discussion today. There's so much to discuss. And we'll talk about the war, of course. We'll talk about that anthropic story. We'll talk about the status of the homeland of homeland security. But I also want to talk about a unifying theme, and that's the idea of the imperial presidency. And I'm going to draw in particular from a discussion that I had with Daniel Ellsberg for my book, where he really warned about so much of what's happening. The the unification of the danger of the president's [snorts] foreign policy power as commander-in-chief and usurpation of what's supposed to be Congress's war power. We talked about that last week and how that intersects with shutting down civil liberties at home. So, I just would urge If you're a new listener and you're coming to us, subscribe. We're so happy to have you

with us. And John, what a pleasure to speak with you Well, thank you. So, we got a lot to get to today. And I have a lot of dumb questions, Professor, because the war goals are changing like Trump cheating on his golf score. First it was destroy Iran's nuclear program, which I was told we obliterated a few months ago. Then it was topple the regime. Then it was destroy their missile factories. Then it was well, they Israel was going to attack them and they would have hit Israel back, so we had to. Then it was destroy their navy. The global economy is feeling this. Gas prices have gone up. Markets are diving.

Everyone's predicting a recession now. Energy prices surging across Europe and Asia. I mean, Donald Trump has done something really impressive, Professor. He's created a 1970s style energy crisis in about 10 days. But one of the most striking things about this conflict so far is how Trump contradicts himself constantly. One day he says it's going to be over soon. The next day he agrees with the Secretary of Jägermeister Heggseth that the battle is just beginning. I have many questions, Corey. But from a from a constitutional perspective, how dangerous is it for one individual with that level of inconsistency to effectively control the war-making power of the United States and Congress doesn't care?

Yeah, I think that's a great way into it. I mean, when he's erratic in normal circumstances, it's bad. But when you're talking about the purpose of the war, the war aims, which seem to differ day to day. And as you said, that insane contradiction between saying the war is almost over and then backing up the Secretary of Defense, who seems to say we're just getting started. Oh, by the way, now Iran has has Tomahawk missiles, which they're using to bomb their own girls' schools on the first day of the attack. I mean, it's just it Beyond the Beyond the cult, it's amazing how many adults are putting up with this.

And you know, that was quite a moment where they were both on Air Force One, Heggseth and the president. And the president said, "Well, it must have been Iran that bombed the school." And you you see the look in Heggseth's face, who knows that that's almost certainly a lie. >> [laughter] >> And tries to he tries to cover by saying, "Well, we didn't we don't We're the only party that doesn't intentionally bomb." Obviously, he he he is not willing to totally cover for the president. >> he's continuing to lie. He's now saying we're investigating. He knows damn well what it is. The fact that he's saying we're And by the way, Pete Heggseth's a big fan of murdering civilians. If you were in a fishing boat off the coast of Venezuela, over a thousand civilians in the region have already died. I mean, Pete Heggseth's claiming to care about the rules of engagement are as false as his claiming to care about the Bible. But I mean, the the framers of the Constitution, as you've taught us, were very suspicious of concentrated executive war powers.

These nonstop shifting statements show exactly what they wanted, Congress, not a single fallible human leader deciding when America goes to war. And yet, they found a way around it, right? They they they found a way around it. Like it seems if Congress is going to gradually surrender their war authority to the presidency over the past several decades, it didn't just start with Trump. I mean, what does that tell us about where the founders fell short in planning for this? Yeah, I think now there's a lot to unpack here. But the first thing I think to unpack is that the erratic differences as I was saying before, like they they might matter a little when it comes to domestic policy.

But the reason why they matter so enormously in foreign policy is because the president really is the sole person in charge of this war as commander-in-chief. And yet, the purpose of the war is so unclear. And so in his erratic statements, you see the danger of allowing a single person who's prone to arbitrary statements and action in charge. And the framers, to go to your point, thought about this. And we talked about this to some degree last time. But I want to really focus on the erratic statements and what it has to do with the founders' vision and how it it really contradicts it. What they were worried about was a rush to war, one person making a decision. And just to remind listeners, we've talked about this before. In Britain in England, the king had two powers, to initiate war and to carry it out. And the framers divided up. They give the commander-in-chief power to the president. But the question of who initiates or starts the war goes to Congress. Now, what does this have to do with what we're talking about? The whole point is that the the discussion

about going to war is going to be had by a group deliberating on what the point of it is. And seeing how once we get into a war, it's going to completely reallocate the resources that are meant for a domestic society. We never had that debate, even though the framers designed the entire system around it. He just usurped it. We talked at length last time about how the War Powers Act has been a well-intentioned but misguided way of empowering a president. But the bottom line is when you come back to the Constitution and the founding, he is the nightmare of the founders. He is the warning of those who opposed ratifying the Constitution because rather than having a deliberation and a clear plan, he's just out there acting in this wild way. And here's the sick thing about it. As commander-in-chief having destroyed the the declaration of war power, which is supposed to go to Congress, his his erratic nature is translating into policy, into the battle plan. And who's supposed to stop it? Now, this goes to your other point. Pete Heggseth, who

brags about this sort of macho vision of war, who dismisses war criminals and war crimes as something that's in the way of a fighting force, and uses just all this hyperbolic you know, hyper-masculine language to obscure the fact that, you know, even if we go to war, there's supposed to be rules. And one of the main rules is to look out for civilians. And that's obviously not just been discarded. >> no more woke rules of engagement now, Professor. No more woke rules of engagement. Did you hear that when he said it last week?

>> Yeah. What a what a frightening, especially in the context of the story that we're talking about. The you know, let let's just assume that it wasn't targeting the school. I There's no evidence to suggest that. But the fact that you have a Secretary of Defense who's so indifferent to civilian death makes us wonder if they're being careful at all about making sure that that this doesn't happen. I'll say one question, you know, is you know, is this a war crime? That's going to come up a lot. And it isn't a war crime if it wasn't intentional. The rules of war and just war theory talk about the idea that as long as the the indirect effect of weapons aimed at military targets are civilian deaths, that isn't necessarily a war crime. But the more that Heggseth talks about his indifference to civilian life, the more questionable our actions become. And we certainly start to move closer to the worry that if there's not a war crime of intent, there should be an understanding that a kind of

recklessness and a reckless indifference to life, if not technically a war crime, it's certainly something that that this country shouldn't be involved in. I think the very fact that Heggseth this month said, "All on our terms with maximum authorities, no stupid rules of engagement." He literally he's indifferent to law. He literally is making it extremely easy for a future war crimes tribunal to put him away for life by saying that. He's boasting about it, Corey. Is he not? I mean, is that not Is that not an official announcement to all of our allies that they know it's lawless and they don't care?

Well, I'll tell you. I mean, here's the the technical truth of the matter. First of all, there's a real question about who he would be tried by. I mean, it could be I guess a domestic court if it turns out that he's committed a crime. Um it's unlikely that the International Criminal Court, which often handles war crimes, is going to indict American Secretary of Defense. Maybe it's possible. There certainly have been those who have urged it. Well, I don't think it's happening in the next 3 years. >> But here's the I'll tell you the this is a real dilemma in the law that so much of just war theory is centered around the idea that the war crime comes from intentional targeting of civilians. So, for instance, crimes against humanity or genocide require this intentional action. And what he said is something less than intent. It's a kind of indifference or recklessness. So, I mean, here's what I'm struggling with and I you know, you can tell me what you think that I think it's it's horrible, horrific, even evil actually, his indifference to the suffering of human

life. But yet he might with his statements be careful enough that he's avoiding any serious charge of a war crime. Now, if something turns out >> think he knows they'll never I think he knows there'll never be a war crimes tribunal because this country doesn't hold people accountable for those things and never has. Yeah, well, we've had some we've had right at the highest level. We certainly have had trials of the you know, in Vietnam for instance, those who engaged in civilian >> killed a million people in Iraq in this century and no one got fired for for any of it. So, I mean, I think that he's quite comfortable in realizing that and he may be quite comfortable in realizing that the Democrats would never have the fortitude to actually demand any kind of accountability once these people are out of office. I mean, when have we ever seen accountability? The Confederates?

>> Yeah. Iran-Contra? The Iraq War? We love letting them get away with it. Yeah, I have to say one of the most profound experiences of not just my professional life, but my life period was that for my book, The Presidents and the People, I interviewed at length Daniel Ellsberg. And Ellsberg was really reluctant actually at the end of his life to talk a lot about Watergate. And in fact, he told me that I have to read everything he's he's ever said about Watergate. And if I ask him a question that's been said, he's not going to be happy with me. So, I had to go and read all of his work. He actually found a couple of instances where I had missed stuff that he wrote like in the '70s or something, but I did pretty well. Uh anyway, why am I bringing this up? Because you know, when you think about the big problem that we're on, and which I've called the Imperial Presidency, that's how he referred to it as well, it's the problem of first of all, decision-making system in the Defense Department and in the executive branch that we can't see through, that's not transparent, and that inevitably will result in lawlessness abroad and the

prediction was and carried out uh at home, too. And you know, how do you stop that? Well, he had he did have a technique that I think works and it's not exactly war crimes, but it's leaking. And when he leaked the Pentagon Papers and let us know that for decades the Vietnam War, like this thing that we're about to get into, had no clear purpose, wasn't winnable, and that that was all known. His accusation to the American people was to witness this reckless indifference that the entire government was showing. Now, was that going to result in a criminal trial of the Secretary of Defense or of Nixon? Uh no, but at least it was a way of shining a light that the American people could see. And when we had this period of time of forcing Nixon's resignation, of pushback against presidential power, it was so much because of this one act that he leaked this the Pentagon Papers, which he had worked on, the secret history of the Vietnam War. Um and some

listeners will know it well, others you know, younger listeners might not. But but you know, that that's the kind of accountability, truth, and shining a light on all of this. So, when you and I talk about a truth commission, in addition to hopefully trials for those who have committed crimes, that's the kind of accountability that we want to see. So, what what is going on in this process of planning this war that led to the killing of well more, you know, the the numbers are are coming in. It looks like well more than 150 school children.

Was it indifference? Was it that they knew but pretended not to know? I don't think it was voluntary, but let's find out. And the shining of the light I think will cause the outrage of the American people that we've seen before and pushback against presidential power. Okay. Um according to US intelligence, Russia gave Iran intel on US military positions in the Middle East. Actual intelligence on American ships and aircraft and installations.

And shortly thereafter, this is again from American intelligence, >> [snorts] >> Iran destroyed a $1.1 billion US radar system in Qatar and a 500 million THAAD radar in Jordan. That's that's 1.6 billion of American military hardware that you, dear listeners, paid for, gone. Because Vladimir Putin has decided he can play I can kill Americans and Trump won't criticize me because he knows he can. And how does the White House respond? By calling questions about it stupid and by lifting some Russian oil sanctions.

So, Russia is literally Vladimir Putin is literally helping Iran to attack America and Donald Trump is giving them preferential treatment. Corey, if an erratic and corrupt and and historically dishonest president is willing to act unilaterally and Congress is politically divided or cowardly, does the constitutional system have any effective way to prevent an unnecessary or reckless war? Well, one theme that we've been carving out is that as the American people see that this president, well, I mean, there's no other way to put it, but is a liar. Remember, this is the person who promised to keep us out of foreign wars and at the same time was caring about issues of affordability and inflation.

And the more that we and our allies burn oil fields in Iran and and oil prices spike, which by the way, Vladimir Putin loves. He has lots of oil and he's thrilled to see oil prices spike. The more we see the lie that this is really about anything but the president's whims, his personal enrichment. And there is no plan to either stop foreign wars or, you know, here's the thing and the framers predicted this. When you go to war, you mess with your domestic priorities. So, if the domestic priority was ever inflation, you know, that's increasingly out the window with this supply side spike to oil scarcity and oil prices increasing.

So, yes, that's what we see, the problem of this Imperial Presidency, unconstrained by Congress, no purpose. He's simultaneously destroying the international system. There is no rule of law, by the way, in the international system. The other war crime we could talk about, too, is the attack itself. It's a crime of aggression. Apart from the specific war crimes that might be happening within the within the war itself, there is also the the lack of justice and the illegality of the war itself. And all of that is has to Trump. He's He's It's like a trifecta, you know, he let's see if I can get all three. Domestic priorities like inflation, the lawlessness of the international system, and then the chaos of not war crimes, of civilian death. I mean, it's just a a disaster from this president.

And it is all caving down. And the one thing that I hope is you you asked how can we stop this? Well, what we're doing, trying to make this all transparent, the American people as a whole seeing the lie, that's the way to hold him to account. Because if we elect a Congress that does something because of this outrage, feels our outrage, that is a way to stop him. Courts and all of that might happen after if he he, you know, is still on this planet after he is no longer president, maybe we will see some sort of accountability. The court has made that hard, but I think the real accountability has to come from the American people. In terms of the specific mechanisms, it's very unlikely right now that this would happen, but there are two things that could happen.

One [snorts] is the Congress can use the War Powers Act. They're going to need 2/3 to stop this war. They We talked about why this was, but they could vote. It goes to the president, he'll veto it. They need an override of the vote to stop the war. But legally, that would be the end of the war. And at least even if he didn't stop then, it would be so clear that he's violating the domestic war. There wouldn't be some amorphous conversation. And then the other thing, this is really to go to your point, is the spending power of Congress is quite powerful. They could tomorrow revoke that power for the war. That's not going to happen right now, but as outrage builds in the scenario that I'm carving, maybe that true tool could be used to withdraw support. Democrats would be hounded for for, you know, being anti-patriotic, but the more unpopular the war becomes, it might become palatable to use that very real mechanism of cutting the funding off. The power of the purse doesn't rest with the president, it rests with Congress. Right.

>> [snorts] >> Well, let me ask you about that because we've talked about that many times. And obviously, this is the part in the show where I always say that America has not legally declared war since December of 1941. We have not legally declared war in almost 85 years. So, knowing that they don't care about the Constitution, could Congress realistically, if they wanted to, a different Congress, a Congress that cared about the could could Congress limit funding for specific military operations in order to force a president to come back and seek authorization?

Could that happen? Not only could they, but that's exactly what I'd like to see, to reclaim the you know, the way to really reclaim the war powers to reclaim the funding power. Now, if we start to talk about a different Congress, this would never happen with this one. Uh one colleague suggested to me the idea that, you know, now we allocate uh multiple months in advance for our defense budget. What if we set the default to every month there had to be an approval? Then rather than trying to pull back funding, there would be a debate every month about whether to continue this ridiculous war, illegal war, obviously. And I think then that would put a different kind of pressure on Congress that sort of scenario. Uh and money could be allocated again, yes, for specific purposes and not others.

And I don't want to skip ahead to the other story, but for instance, ensuring that your money is not being used for human rights violations if you're going to uh allocate it to the Defense Department. But I can't say this enough, the power of the purse is with Congress. We're not seeing them use that at all. They're just handing over power after power. But as we watch this illegal war, maybe it's time to rein it back in. And if Congress wanted to ensure that future presidents couldn't launch destructive, murderous conflicts this easily, couldn't they tie defense appropriations to explicit congressional approval for new conflicts, right? Like they're not going to stand up to this guy, but they they could, if they wanted to, make plans to make sure this doesn't happen again. Yeah, we talked extensively last week about the political question doctrine and the question of, you know, even if the president's acting, you know, illegally. And a lot of people have this question. I'm getting a lot of questions about this. And courts aren't enforcing the uh the law, then, you know, what's to be done? Well, one answer would be to recreate the law so that courts did have a role and to make that explicit. But I think in other

arguably more powerful ideas is the one that you just suggested, which is to tie the allocation fund funding. This is just common sense. To the legality of executive action. And if the war is illegal, that should trigger the idea that there's no funding, you know, unless for instance, there was an override by Congress. So those two things should be traveling together, allocating money for war and making sure that war is legal. And we've got to come up with techniques of of doing that. And if it was one vote, you know, about legality, then maybe we'd have a chance that they'd reclaim the power. I mean, I don't want to hide from what you said either though and and I I want to emphasize it. This Congress is cowardly.

They have abandoned their duty. They haven't even voted on the legality of this war even though that's their duty. I just want our listeners to imagine if Congress had been forced to debate and vote on war with Iran before the bombs started falling. Just try to imagine an America where that was the reality. Yeah, I mean, this isn't some recent problem. You know, I'm I'm focused on Ellsberg today because it it's so much of his interview uh really, you know, sticks with me. But what you know, one thing that he did in his biography, Daniel, this is Daniel Ellsberg again, who leaked the Pentagon Papers about the secret history of the Vietnam War showing that it what that there was no clear purpose, that it likely wasn't winnable, and that people in the executive branch knew it. Well, he went first to Congress and really tried to get attention there. And when he was essentially, you know, had some interest by but it wasn't fully supported even by Congress people that you would think would be on the on his side and were politically aligned. That's why he had to go directly to the American people.

So, is Congress going to do this on their own, reclaim this funding power, tie it as we're suggesting to the the the legality of the war, common sense? Probably not on their own. And even a new Congress might not do that. But if we, the American people, in the way that Ellsberg galvanized the American people at the time, can galvanize ourselves to demand that, maybe there would be a chance. And let's not forget, you know, that war was stopped eventually partly as a result of Ellsberg's uh heroic actions. We have so much to get to. I mean, I want to talk about Kristi Noem. I want to talk about how Pete Hegseth thinks m- robots should be allowed to decide who lives and who dies. But before we wrap this this up, Corey, I just it it you know, one argument the founders made was that Congress represents the people.

And therefore, a decision to go to war should require broad democratic consensus. I'd like to think there are some Democrats that can bring this argument to our Republican friends. I don't know if they will, but when Americans watch a president change the reason for a war day to day, what should our Republican friends understand about why the Constitution intentionally divided war powers in the first place? What do we just need to say to our clueless right-wing co-worker or or loved one? You know, it's such a tragedy that we're talking this way. Of course, you're completely right about this Republican Party. But Republican parties of the past, you know, pushed Democratic presidents to seek war authorization. In fact, there are past examples of Republican congressmen bringing suits against presidents for failing to respect the war powers. During the Clinton era, I believe is one uh example. Uh during the Obama era.

Uh and, you know, unfortunately, that breaks down in a very partisan way. And we've also seen Democrats, not Republicans, opposing Republican presidents, but not Democratic presidents. Um I'll give a shout-out to uh my amazing colleague at the University of Pittsburgh, Jules Lobel, who brought two of these suits. And, you know, he was able in one of them to get uh a group of Democratic congressmen who opposed the Republican president and vice versa. He could get a group of Republican president congressmen to oppose uh a Democratic president. We've got to somehow break through that and see that the danger is the war power itself being usurped by uh by a president, taking away from Congress. And uh the more the American people can break through in this case, yeah, a rough partisanship, uh the closer we'll be to uh the framers in this, you know, they had a lot wrong, but this they had right that it should be Congress that declares war. We'll have to see how many people will need to die needlessly before Donald Trump pulls the troops out, declares victory, and blames it all on Joe Biden. We do have

to take a very quick break. Uh Professor, when we come back, let's talk about murder robots. Turns out Pete Hegseth is a fan. The people who make the murder robots, not so much. This is the Oath in the Office. Welcome back to the Oath in the Office. I'm John Fugelsang. So the Pentagon is now in a legal fight with the AI company Anthropic, Professor, because the company insisted on two safety rules for their Claude AI system working with the Pentagon. Just two safety rules? Just two? Rule number one, don't use our AI for mass illegal surveillance of Americans. And rule number two, don't let robots make autonomous decisions about killing humans without a human giving oversight. That's it. That they they just pretty much said, "Don't build Skynet, please." And apparently, this was too much for Pete Hegseth, who thinks safety guardrails are a woke conspiracy plot by big seatbelt. So what did the government do? They they they labeled Anthropic a supply chain risk.

And then went to war using their AI anyway. Normally, supply chain risk is a designation used for hostile foreign adversaries telling our our contractors, "Don't do business with China or Russia or North Korea." But now it applies to companies whose radical agenda is don't let the murder bots run unsupervised. I mean I mean, this should be huge news. This is like McDonald's refusing to to put put plutonium in a Happy Meal and the government says they're anti-business. [laughter] Anthropic is suing the government. I don't know who to root for. We've spent years, Corey, [laughter] worrying about big tech controlling society, but now we're seeing something different, government pressure on private industry, AI companies, to cooperate with national security priorities whether they're legal or not. Constitutionally, what should worry us more? Corporate power over AI or government power over the corporate power of AI? Yeah, I'd go ba- both a- and on that. That's the rule of improv, right? Both and. And and.

Or yes and. Yes and. The um you know, it's the danger of this enormous power, not just of corporations, but of this amazing technology, AI, uh Claude in the case of Anthropic. And the the worry is that amazing technology combined with a tyrannical government, uh you know, that that's a recipe for fascism and for the shutdown of civil liberties. I look at China as a parallel where social credit uh is evaluated based on whether you in part criticize the government or not, are compliant or not. And AI and and technology is being used to survey um Chinese nationals to see if they are uh loyal or not. Now, you might think, "Well, that's that's dystopian. That's so far from the United States. It's a an authoritarian regime." Well, look at what's going on here. What they wanted was two specific things. One was um to be able to use the AI in this autonomous warfare. And the other was to track American citizens. So, just to to highlight the connection from the last

uh discussion. When I talk about the Imperial Presidency, I should also mention Arthur Schlesinger's book, The Imperial Presidency. Uh what what we're really talking about is the combination of the war power with domestic repression. And wow, that's what you're really seeing them demand from Anthropic. And thankfully, they fought back. Anthropic is a a company with mixed reviews to to to say the least. I'm in a lawsuit against Anthropic which with a number of other authors because they stole our work to train this AI. Uh but yet at least they stood up. And yet you have uh OpenAI seeming to make a deal at the same time. So I'm not optimistic about any of this. And just the fact that Hegseth's Defense Department was trying to do this, um you know, sh- show us the Imperial Presidency isn't some paranoid worry.

It's it's a real thing that's happening right now. I'll say, you know, A- Anthropic is not anti-military at all. They literally said, "We want to help national security. We just don't want to build a domestic mass surveillance machine or a murder algorithm." Which used to be the kind of thing every sane human agreed on, Corey. >> [laughter] >> When when a private company refuses illegal government demands tied to military or intelligence operations, what constitutional protections exist for that company when their own government with its own justice department wants them to break laws?

You know, I think that you we've so often given foreign policy, the Department of Defense, the CIA lots and lots of we leeway. We the people through Congress just allocating funds and not tying them in as specific a way as we need to. And we need not just a revival of the oversight power in how these funds are are used. As I'm again skipping ahead, but as we saw in the case of Homeland Security, finally Congress doing a tiny bit of that. But I think that right the the allocation of the funds again has to definitely be tied. Any DOD funds should be tied through the law to not surveilling American citizens and violating their civil liberties. Isn't that obvious? And yet we haven't done that clearly. And you know, maybe there's litigation that will dig up past laws or are laws on the books that might do some of this, but you know, we've got to really make it explicit that this especially new technology can't be used for this

purpose. And we the people through Congress are not going to pay for destroying our own civil liberties. That's the kind of legislation. You know, Congress used to make laws like this and they've just completely abandoned substantive law making. But this is this is their their primary role to protect the American people. Yeah, and Hegseth just basically threw a public tantrum because the AI scientist who built the thing said robots shouldn't decide who lives and who dies. That's not radical. That's that's the bare minimum to keep Terminator from being a damn documentary. Cory, in in practical terms constitutional terms, is is this Anthropic is this a free speech dispute? Is this is this a national security dispute or is this a corporate regulation issue?

Yeah, there is I don't think it is a free speech issue because, you know, if government contractors can be you know, paid to do various things that they might not agree with and if they want to take the money, they often you know, let's just realistically companies do things all the time they might not agree with. But I think it's it's bigger than that. It's related to all of our civil liberties because what we're really talking about is the ability of a corporation to use its technology in combination with the government to shut down all of our rights. We do you know, the idea that we even have a vestige of a democracy if we're in the world of China where we're being surveilled by AI that's going to tell Pete Hegseth if we're loyal to him or not. And you and I are definitely not loyal to Pete Hegseth. So our our social credit score would be extremely low if they get away with this. And you know, what's the purpose of Congress? I should say too, you know, the framers were obsessed with one question. This whole separation of powers having a president on the one hand Congress and a judiciary articles

one, two, and three. That was all about one thing, protecting liberty. That was supposed to be the point. But they assumed that people in each of those roles would do their jobs and so that if one of the branches like the presidency fell off and started trying to suppress liberty, the other two or at least one would stick up for it. And what we've got is really you know, all three branches especially Congress doing nothing in the face of a a president who as you said this should be front page news all every day trying to shut down our civil liberties using AI. I mean again, we'll get off of this topic, but like the debate isn't even we're not even debating should robots kill people.

The debate is should robots at least check with a human first. And that's the controversial position. All right. Now let's talk about another threat to to humanity and that's billionaires who are flooding our elections right now. The New York Times had an article on the scale of billionaires campaign donations is overwhelming US politics. It turns out the Times analysis found that 300 billionaires and their family members donated more than $3 billion in 2024. That's 19% of all contributions. So roughly of every $5 spent in that entire ugly campaign that we know about, not even getting the dark money. Of every $5 $1 came from these 300 billionaires.

About 10 million each. That doesn't count the money again the billionaires gave through dark money groups they don't have to disclose their donors. So most Americans Cory thinks Citizens United created unlimited political spending, but legally speaking that's not quite true. I've just been learning about this, but can you tell us a bit about the speech now.org case of 2010 and how that that actually made today's Super PACs possible? Yeah, the there is a confusion about how this all happened that we have billionaires and study from the New York Times and as the data comes in, it's just without question that you've seen an explosion in the amount of money that billionaires are spending on elections and it all stems from this year 2010 around that period where two cases basically paved the way. One is very famous and we all know about it, Citizens United, which said specifically

that a corporation had a free speech right to spend unlimited funds from its own treasury on third-party ads and on campaigning. It couldn't go directly to the candidate, but it could be used in this third-party way. And then a lower court asked the question in a case called Free Speech Now versus the the FEC whether or not that logic that was in Citizens United extended to the ability of a billionaire to give money to a Super PAC, which is a kind of corporation corporate entity in order to then spend unlimited money. So we're no longer talking about like and at the time people were skeptical Citizens United was really going to make a difference because shareholders are going to push back on public corporations for instance that try to intervene in elections. That was the thought. And so maybe this isn't a big deal, but this smaller case, not a Supreme Court case totally paved the way for what we're seeing now by protecting these Super PACs. And

billionaires, you know, it turns out when you have a billion dollars spending a million or two on a on a campaign that you care about it isn't a big deal or even more than that. And you know, that's flooded our elections. I'll go back to the founders, the anti-federalists who warned about this Constitution and its dangers worried about a system this big giving rise to an oligarchy of extremely wealthy people who would control things in a way that doesn't have anything to do with the interests of the people. And wow, that's the world that we're in. And it is the result not just of Citizens United, that's part of it, but this other case Free Speech Now. I'll say one other thing, which is there is some hope in it.

Free Speech Now because it's not a Supreme Court case could potentially be reversed. And as we start to see and publicize the danger of this system, we can see how even if we retain the idea that corporations can give money, that this idea of Super PACs being a free speech issue has been a disaster. Free speech is based as our the great Brown professor Alexander Meiklejohn put it, it's based in an idea of self-government, but if it undermines self-government, that that can't be the way to think about it. And and that's what we're seeing this fake idea of free speech giving rise to Super PACs that's under undermining our democracy. And you know, it as we talk about systemic fixes to all of this, we talked about Congress's role, we've also got to talk about the danger that the court has played in enabling this oligarchy.

Well, this is what confuses me because I mean from a constitutional perspective why did American courts decide that unlimited spending from outside groups doesn't count as corruption? I mean it just seems like an aristocrat class that believes that money is speech and all well born rich, you get more speech. You know, I don't think it's a total accident that people like Clarence Thomas you know, are receiving money from billionaires and then finding that billionaires basically have more rights than the rest of us when it comes to democracy. You know, it's it's one thing to to be a billionaire, but to to exist in a system in which being a billionaire is able to collapse the system by just flooding elections and by undermining the few protections that we had. I mean and let's not forget we've had moments where John McCain and Russ Feingold who I've interviewed actually for for your show John for SiriusXM. You know, they actually crafted ways of curbing all of this influence and it's the courts partly the Supreme Court, but it also

this lower court decision that's crashed through it. And you know, part of the solution here is court reform, but it also is gearing up with new legislation. And if we need be, I mean I've long been an advocate since 2010 and in fact was proud to sponsor a a group of conference that resulted in state legislatures in Rhode Island and the state legislature being the first state legislature to call for an amendment to ensure that the that's well, the way we put it then Citizens United was reversed. And now I think we've got to focus in particular that Super PACs are not protected by the Constitution and they can be abolished by law. We need an amendment to do that.

Yeah, I mean you know, a handful of billionaires have disproportionate influence over our elections. Thousands of people are dying in Africa because of USAID cuts because of the influence of one billionaire which has led to literally no exaggeration thousands of human deaths. I mean this is a system where individual voters have equal votes but wildly unequal political influence. And and our current constitutional doctrine doesn't seem to recognize this as a democratic problem, does it? Yeah, I and again, it's not even the Supreme Court. It's this lower court opinion. It could be reversed. Possibly legislation could cure it. An amendment certainly could cure it. And if you want to focus in on the problem, we talk a lot about billionaires, but I think your question actually highlights a really important point, which is there's one guy that we can look to and we could say to ourselves like, "Huh, should this ketamine-using erratic, you know, wild person who came into our government and destroyed entities that had existed for decades that ensured, you know, that people

weren't starving abroad, including USAID? Should he have the influence that he has? Do we really, you know, I you wouldn't trust this person to babysit your kids, much less to run our government. And yet, why does he have that kind of influence? It's because not just because of his billions, but because of a system that allows those billions to have such a huge influence that he could get a role like that as a result of the enormous amount of money that he spent to get Donald Trump elected." I mean, this brings us back to my favorite subject to discuss. We need public financing of elections. That's it. I mean, we have to have it.

Yeah, that's right. And there are localities, New York for instance has an extremely generous system of public funding. And starting to figure out how to make it possible to to just open up the terrain, so it's not just billionaires using politics as a play thing, but it's citizens, listeners to this podcast who I'm sure are civically outraged at what's happening, to make it easier for them to jump into the arena. That's what I want to see. You know, part of what we're talking about every week is the destruction of our of the law of democracy that is happening right now. We're always honest about it, but you know, we've also got to show hope of the future. And public financing, there are ways of doing these things. Mhm. You know, I I I want to say to the listeners, I know how sexy public financing and murdering AI bots are, but I think we need to get to the moment everyone's come for and that is talking about Kristi Noem. When we return, Kristi Noem's departure and congressional oversight. I can't wait to discuss this particular subject. We'll be right back on The Oath and the

Office. Welcome back to The Oath and the Office. I'm John Feal saying with Corey Brettschneider. Kristi Noem is out, pushed out after a lot of congressional scrutiny over spending controversies and of course, the murder of American citizens on the streets. The deeply unqualified and amoral and dim Mark Wayne Mullen has been tapped as her successor where he will do exactly everything Kristi Noem did. It is interesting that there's a lot of issues with money here and oversight. Daily Beast reported that ICE ordered 2,500 pickup trucks and SUVs with ICE's logo painted brightly on the side and words like defend the homeland. And this infuriated the agents because they've been saying, "These vehicles are a little too conspicuous. We're in unmarked cars now and they can still follow us." Think about the millions we spent by having Kristi Noem's 28-year-old deputy order 2,500 SUVs with our money that are now going to sit in a garage somewhere. Corey, I don't even know where to begin, but but Congress pressing a cabinet

secretary to resign after spending concerns, well, how quaint is that with all these dead bodies, right? I mean, it's almost like a throwback to an earlier era of government oversight. Is that a fair characterization? I love it. It is quaint and you know, we're always looking for hope on this show and I actually find it here because, you know, this is how it's supposed to work. You have an abusive Secretary of Homeland Security who spent money, the example you gave and then I'll give some others. She spent money on this ridiculous ad campaign that was clearly an ad campaign for her own branding.

>> Exactly. >> And you know, pretending that this was somehow a public service. It was solely about herself, starring herself. And she was asked whether Trump approved these various things and and claimed he did and it's unclear if he did, but he was clearly embarrassed about it. She also spent money on these planes in the in the hearings they showed these lavish bedrooms, I guess, are on these planes and she was asked like, "These are deportation flights? Like this is for the deportees? These No, of course not. They were for her and for her cronies."

And you know, as Senator Kennedy and other Republicans dug into her, I thought to myself, "This is exactly how oversight is supposed to work, that you have money allocated by Congress, used and abused by a Homeland Security chief and you know, Congress isn't happy about it. And then what's the result? She's she's forced out. She's fired. And that's how it's supposed to work. And now this is just a little piece and I like how you put it of a quaint memory of how this used to work, but it shows it could work again if again, on to go with our theme, Congress would do its job." I mean, wow. I I'll have to thank the savior of democracy, Tom Tillis, who only had the bravery cuz he's on his way out the door.

But I mean, when oversight works as it appears to have worked in this case, I guess that tells us a bit about the resilience of American institutions. It's just she wasn't really fired, she was transferred elsewhere in the agency. We are still paying her salary. She is a powerful witness and they don't want her talking, so it seems like they've just moved her deeper within the administration where she be she can be kept far away from microphones. But I mean, you know, oversight has become extremely partisan and that generally in the last several years has undermined Congress's ability to act as a genuine watchdog cuz everyone's just, you know, fighting for their own dodgeball team.

What what tools does Congress actually have, Professor, when an administration refuses to cooperate with investigations? You know, the classic theory of political science is that you have oversight committees looking at each of these agencies. Let's also not forget how vast the federal government is. It's more than 2 million employees of the federal government and divided into various agencies and one of the primary roles of Congress since it's funding after all, to go back to our previous discussion of all these agencies, is it supposed to look into wrongdoing. And the classic theory of how American politics is supposed to work and people used to say does work. I don't think that's clearly not happening right now.

Is that just transparency, shining the light, looking at all these things. It's not that it's happened in every instance. I talked about Daniel Ellsberg trying to get Congress to do its job about the Vietnam War. That that didn't work. He had to go to directly to the American people. But in many many other instances it does work and this was a small glimmer of where it does work. Now, who have they replaced Noem with? This you know, individual that's famous. I watched him threaten the head of the Teamsters to a fight in a congressional hearing and Bernie Sanders had to actually literally, you know, stop it right there.

>> broke up a fight between the head of the unions [laughter] and this hump from Oklahoma. Yeah. And you know, so that it's not that I don't want to be too optimistic or naive. We've replaced one disaster with another. You know, will he be as much of a disaster? I'm not I'm not sure. At least he got to see what it is if you really go out there in in your own narcissism using money that's supposed to be allocated for the public good for your own narcissism. Of course, what she'll be remembered for in her obituary and her political obituary is going to this gulag in El Salvador and taking, you know, smiling and taking pictures as people were experiencing human rights abuses clearly.

>> Sending innocent people to be tortured and and posing. I mean, I think the only thing Mark Wayne Mullen has on her is that he will not be shooting commercials of him riding a horse that cost the taxpayers hundreds of millions of dollars. But I mean, you know, again, he's he's got two first names, zero Homeland Security experience. The the qualifications to run Homeland Security for those who don't know, involve being on Fox News a lot, willing to lick boots on Fox News a lot, believing that conflict resolution means meet me outside and being totally jacked bro. And and that's it. I mean, this guy's like a NASCAR driver who got banned for punching the car in anger. He he's the guy who who, you know, thought that the Ayatollah of Iran, Khamenei, was the same Ayatollah, Khomeini, who took American hostages in 1979 and died in 1989. That's the guy running Homeland Security now. So, I mean, I don't expect anything to be different. I think the job is still going to be, you know, do whatever Trump wants and ultimately be Trump's fall

guy. And we could talk for a whole episode about how the these these let's say lackluster cabinet members Trump has, the the Cash Patels, the Pete Hegseths. He didn't want to have smart people. He wanted to have obedient people that would never tell him, "Mr. President, that's illegal." So, I don't think any of these cabinet realize that they're fall guys, but the Department of Homeland Security has enormous power over immigration, surveillance, emergency authority. Corey, how how how important is the leadership of that department to shaping our civil liberties?

Well, it turns out enormously. You know, when I talk about the idea of a self-coup of the president destroying civil liberties and destroying the other branches, ignoring oversight, that can't just happen if the members of the cabinet are still devoted to the rule of law. And I do think some of what we saw unexpectedly in the Trump's first term was people who Trump assumed were loyalists who really, you know, at some point were like, "Look, I'm not going to just do this president's bidding and break the law and ruin my life and reputation forever." And they did push back. And there's a long history of that. The most famous example is Elliot Richardson refusing to fire Archibald Cox who was looking into Nixon's wrongdoing. Now, what what what's the thing that makes the difference? It's partly who you're who you're getting, but it also, and this goes back to Congress, is that principal officers of the United States, including all cabinet officials, have to be confirmed by the Senate. That's right. in the case of Richardson, he had been he had promised the Senate in his confirmation hearing that he would not

fire Cox, the investigator looking into Nixon's crimes. And that promise in the end was why he refused to do it. And so, if you don't have Congress looking for people, turning people down who who have no integrity and and demanding integrity from them at the hearings themselves, uh there's very little check. And so, you know, the theme here is is clear. You know, we're we're headed towards dictatorship uh partly because of a Supreme Court that's enabled this president through the immunity case, but also from a Congress who's not you what's not using its various levers.

We've talked about spending power. And now now I've really got to focus on the confirmation power. And and you know, they're not doing their job by demanding uh those who who don't have have have loyalty. You know, they they did draw a line at Matt Gaetz, I guess. So, that was just a step too far. But you know, look at who we got. That's the only the only child predator they haven't protected the only child predator they haven't protected, right? Right. Yeah, I mean, and Pam Bondi, I got to say, you know, talk about protecting child predators, she she's made that her hallmark. Future law school case study, Pam Bondi. I mean, and again, I want to remind our listeners, this is all happening while DHS is under scrutiny for the murders of Alex Pretty and Renee Good and the killing of Keith Porter by an off-duty ICE officer and the killing of 23-year-old Ruben Rey Martinez, shot by DHS almost a year ago, which was only acknowledged by DHS like 2 weeks ago.

But Corey, as these families are waiting for accountability from the government whose agents fired the bullets that took the lives of their loved ones, it looks like DC is doing what they do best. They're just changing the name on the office door. It's going to be the same policies, the same chaos, just with a different less telegenic reality TV contestant competing to keep the job. It feels like in this version of America, the flunkies and the henchmen aren't violated. They're not I'm sorry, it just seems in in this America, the flunkies and the henchmen aren't fired for breaking the law. They're fired for breaking the illusion. When you step back, like do these these stories we've been covering, the AI policy, this illegal war, the billionaire election spending, the cabinet oversight, does this point to a common theme about power in American democracy you'd like to touch on, Professor Bretschneider?

Well, I I love this point. You know, I was thinking about Kirstjen Nielsen and all the I talked about what would be in her you know, political obituary. And you know, one thing we've got to put in there, too, is the way that she said after these two murders that these were somehow domestic terrorists Yeah. without any evidence. There couldn't be anything further from the truth. And I think the thing about that was, even for Republicans, even for Trump, it was like, "What are you doing? That's not There's nothing behind that." And what does it do? It's not that that that she somehow, um you know, wasn't doing what the president wanted. It's that she was just, you know, wasn't good at the lying and wasn't good at even the veneer of legitimacy. And she just um you know, was so bad at at at at hiding her fascism, I guess, that that uh you know, it was a step too far. Um but let's not forget, this is all at the behest of this president and at the behest of a Congress that's given up all power. And so, yeah, we're replacing one face with another. And um yeah, things are not going to improve. And let's not forget

either, you know, that yes, this administration is covering up these two murders of American citizens. And we shouldn't stand for that. That's That's what the No Kings rallies are about. Uh so many of you have written to me. I spoke to one of the um uh groups organizing No Kings in North Carolina. Shout out to um uh Ashe County. Uh and you know, we've just got to keep holding that these people to account and shining a light on what they're doing. Amen. Professor Bretschneider, it's always a great pleasure. Thank you so so much for joining us again. Um I want to leave with this. I don't want anyone to be worried because they want us to be full fear. Please, folks, be brave. Take breaks. Take mental health breaks from the news if you need to. Democracy needs you. So So, despair is privilege, okay?

But we should still be concerned. And Corey, what should citizens be paying attention to right now if they're concerned about the long-term health of democratic institutions? I mean, I don't want to just put all my eggs in the basket of the Democrats will save us in midterms. No, we've really got to This is the theme of this podcast and why we're doing it. As citizens, you know, and our public officials shouldn't be trusted to do this. We have to demand it of them. And as we have public officials on the show, this is what we're going to talk to them about. Um ensuring that the powers of Congress are reclaimed, that the light of transparency is shined on abuses. And as much as democracy seems to be in the dustbin day after day, we've got to not lose the idea of it.

You know, I'm really a a believer in ideas. This is where my idealism comes from, my optimism. It It comes from the idea that, you know, at the base, when we the Constitution says we the people, it means it. When the First Amendment talks about the right to free speech, it means it. When we kept the decision whether to go to war from a president, we did that for a reason. It's because we the people are better at making these decisions than a dictator is. And even if we've lost that democracy at this point, the idea remains. And that's what I want to help us reclaim every week.

Professor Bretschneider, thank you for talking me off a ledge every single week. What is the best way for our listeners to follow you and to keep up with your work all week long? Uh the podcast is taking off. We're every week top five um and uh sometimes top three. Uh keep leaving those amazing reviews. Tell your friends about it or even one friend. If you could just share this podcast with somebody that you think would like it, that's what's helping us grow every week. We are growing. We're going to be bringing some new sponsors, very exciting sponsors who are really in line with our mission online. We'll We'll talk about that soon. You'll hear them. Um and uh look for the Substack, the Oath in the Office. Look for the YouTube channel.

And certainly anywhere you get your podcast, Spotify, Apple. And most importantly, wherever you're listening to us or watching us, be sure to subscribe. Corey, thank you so much for all you do. I want to thank Baywolf and Wendy and everyone who helps put this show together. I'm John Fugelsang. You can hear me every night on SiriusXM Progress 127 or every morning on the Fugelsang podcast. My book's called Separation of Church and Hate. And it's just such a pleasure, Corey. I always feel a bit better about the future of this democracy after we speak. We will see all of you next time on the Oath and the Office.