When Courts Fail and Universities Fight Back

Well, then let me just slip one more ring of terror into this because all this is happening while we are murdering people in fishing boats off the coast of Venezuela in foreign waters with no evidence, no warrants. And while we're doing that, the US has quietly been massing 10,000 troops near Venezuela. 10,000 troops, warships, bombers. For what? Venezuela being a country that hasn't attacked us, hasn't threatened us, but they do have oil that Donald Trump thinks needs liberating. And so when I hear Donald Trump say, "We're looking at land now cuz we have the sea under control."

To me it sounds like we just killed 29 innocent people in boats. We want to upgrade to land-based slaughter. And this gets me terrified because this is how American war crimes start, Corey. Fake threats, fake intel, fake patriotism, real dead bodies. I keep worrying that these boats are going to be the next WMDs. And they had these two men that survived one of the strikes. And they announced over the weekend when it would get very little coverage that the two men were being repatriated to their innocent countries.

[Music] Welcome to another episode of The Oath and the Office. I am John Fugelsang. It's a very exciting week around here because the Ninth Circuit Court of Appeals, you know, the one that that used to obey the the law and not a guy, they just ruled that a president can send the military into Portland to execute the laws even though Portland is a place where the most dangerous weapon is a vegan drum circle. But apparently the National Guard is needed to execute the laws in Portland because of protesters in chicken suits and inflatable frog costumes. Welcome to 2025. And welcome Professor Corey Brettschneider, the star of this podcast, the professor with the PhD in politics from Princeton, the law degree from Stanford, and he fights crime and enriches minds in the poly-sci department at Brown. You've seen the professor all over the TV. He's the author of The Oath in the Office: A Guide to the Constitution for Future Presidents. Corey, the podcast is doing

well. Congratulations on your incredible numbers. And on yours. I you know, this is such a team effort and together people are really resonating and I think I had the number wrong. We're now over 400. I was talking about getting what I thought was a 300th review, but we got the 400th review and then beyond that. And they are literally all five stars and they talk about the combination of thinking about the most serious issues. And of course, we're rigorous about that, but also the humor and the banter and so what a pleasure, John, to be doing this with you. Well, we're we're we're going to bring people to the very edge of humor and banter.

You know, I do want to talk about the Ninth Circuit, but first, Corey, I always like to joke that that someday Ken Burns is going to make a documentary about the corruption of the Trump administration and that it's going to have to be 400 hours long. And I want to begin the show today by by saying that I was wrong because it will not take that long to sum up the administration. This weekend, of course, America made history. And this AI video that President Comeover Caligula chose to share is all the documentation we need and future historians will need of Trump's life, his morality, his governance, and the depravity of his support. The No Kings protest, largest one-day protest against a sitting president in American history. No violence, few arrests, no chaos. And how did Trump respond to the most peaceful demonstration against him in history? He could have ignored it. He could have said he didn't even know about it. I was golfing in minimized it.

Could have waited till the media forgot the largest protest in history, which usually takes about what, 36 hours to forget stuff in this country. But he had to make it about himself, Professor. Not with humility, not with grace, not with coherence, but this AI-generated video of himself in a crown flying a fighter jet dumping literal sewage on peaceful American citizens. Now, I just made Professor Brettschneider watch this video moments ago cuz he's Ivy League. He doesn't have to He doesn't sully his Ivy League mind with this kind of content. But even Kenny Loggins had to release a statement, Professor. Kenny Loggins because Trump illegally used Danger Zone, the song from Top Gun, for his poop plane video. And Kenny Loggins had to come out and say, "Too many people are trying to tear us apart. We need to find ways to come together."

Professor, I just want to say, "You know your movement has lost the moral high ground when Kenny Loggins has to call for national unity again." Now, you were on the ground at the No Kings protest in New York. I know you were filling interviews as tens of thousands were gathering nationwide. And I want to begin by asking you, Professor, to describe what what you saw that day. What was the mood? What was the size? What was the message? being literal crap on the marchers on all of America. It just sums up what the march was actually about. So in many ways it's perfect.

It's about an autocrat who has no tolerance for the democratic right of dissent, about somebody who wants to be an authoritarian dictator and really does view himself as a king. And I what I wanted to do was to not just go out and march, of course, but to talk to people and to hear what they're saying. And I should say, you know, this connects to to the work that I've been trying to do to say that really what America needs, the way we have recovered in the past, is to reclaim our Constitution. And for the people, not for the court or for even Congress, but the people to demand a restoration of democracy. And the idea that in the past that citizens have fought back during the Sedition Act, the journalists who reclaimed the First Amendment as a right to dissent, Frederick Douglass who talked about the Constitution as one of we the people, not we the white people.

Ida B. Wells and William Monroe Trotter who fought back against Woodrow Wilson's white nationalism. They all did a common thing, which was lead movements with a constitutional voice in favor of democracy. And then they won by using that voice to prevail upon recovery presidents on on our members of Congress to to to put things back after a democratic crisis. And wow, what I found in the streets of New York, it really was democracy in the streets in the best possible way. More than 100,000 marchers were just extremely articulate voices. I asked people, "What does No Kings mean to you?" And they each were able to just articulate that fundamental idea if there's one idea of the Declaration of Independence and our Constitution, it is No Kings. It's the primary idea of democracy. And I heard from Quaker and John, this video I think will resonate with you, talking about the Bible as a voice of peace and resistance to this kind of monarchy.

I met two children with one of their two friends and and and the mom of one of them who'd come from Colorado. And they said, "Look, you know, we we don't want to live in a country where where we can't speak out." And watching Jimmy Kimmel shut down, if they can shut him down, of course they can shut us down. And that was coming from kids. All of this gave voice to the idea that, you know, the Constitution is not best understood by the pundits or the professors, but with the intuitions of the people and their democratic instincts. And that's what I saw. And of course, the video is on YouTube. You can see these videos and you can feel what I felt. I mean, if there's one theme of the podcast I should say, too, it's that And this is on The Oath in the Office YouTube channel, I should say. If there's one theme of the podcast, it's that we're being so honest about the threat to democracy, the self-coup as I often call it, but also trying to be hopeful. And when you hear that, when you hear these voices, when you see what I saw, you can't but feel hopeful.

You know, I have so many questions about it because I I wasn't here in New York. I was in Myrtle Beach and I was I was working and I really wanted to go to the the the Myrtle Beach No Kings, which I heard was quite fascinating, but I I wasn't able to do it. I was working. And I I wanted to ask what struck you about who showed up. I mean, you mentioned like a Quaker person, young people, but were they mainly the folks that you would pigeonhole as progressive activists? Or did you see a broader coalition of Americans alarmed by the concentration of power in one man? I mean, it was Was it the folks who you normally see who show up for all the protests? Or did you see other folks who had been moved by circumstance to come out this day? It was a As you'll see in the video, a real diverse snapshot of America. That it was young and old, very young in the case of the two kids, one with their mom. And in some cases, older people, including one who talked to me about the difference between really the patriotism

and the presence of American flags at this march as opposed to what she had seen in the 1960s. There was a a woman therapist, a woman of color talking in depth and it was one of my most interesting conversations, although they were all interesting, about what wasn't intuitive to me and I don't think necessarily to you either, but that you know, to have empathy for Donald Trump, that he's a hurt child. And it's an amazing interview. People are reacting in different ways. I've gotten the most comments about her, but but she she struck me as really brilliant.

>> I want to Yeah, I saw that clip, by the way, and I want to point out that the woman who who who preached empathy for for Donald Trump, I just like to say that that clip turned me into a Republican. I have just joined the party and I now renounce her as woke. I can't believe it, but I found my line, Corey. I found my line. >> You you just couldn't tolerate it anymore. The one theme I will say that brought everyone together in addition to to the brilliant slogan No Kings that we heard, Mike Zemor, who's been with us a couple of times on the podcast as a guest and the ACLU, his organization, has been deeply involved along with Indivisible in planning uh the No Kings protest rallies. But the one thing, you know, we started in front of Fox News where a banner was running that says, you know, this is a hate rally amplifying the the lies of members of Congress. And the one theme from all of this diverse group that you really see is the theme of love. And democracy is about solidarity. And it's the opposite really of hate. And in the extreme cases, this therapist urging me to be

empathetic to Trump despite my skepticism of it. And you know, the the idea that it was a hate rally couldn't be further from the truth. And you really see that in the video. I heard you I heard you brought a clip. Let's let's let's let's throw to Corey's clip. This is Professor Corey Brettschneider live on the streets of New York City on No Kings Day. So tell me what your sign says. We've got a picture of it. >> Oh, yeah. It's Your red flag is saying tiny dictator. So I'm dressed as Harley Quinn from the Suicide Squad. Uh-huh. One of her catchphrases is red flags.

>> Uh-huh. Stacey Abrams' catchphrase is also about red flags. >> Nice. Uh so this is my attempt to tie in a a costume to a sign to a protest. Great. And what We're out here, of course, saying no kings and we're saying it to Donald Trump. What does it mean to you, no kings? I mean, this this country is a democracy. He's using the Oval Office as if he is the CEO of America. Uh if you're if you're on his side, you get enriched. If you're not, you can go up yourself.

Um My parents voted for this guy. I'm so disappointed in my parents. Um yeah, I'm I'm out here because I know that 3.5% of the population has to be in the streets in order for a potentially authoritarian regime to know we're not going to roll over. There's 3.5% of this population at least, which I'm pretty sure means either 12 or 14 million people in the streets today translating to that 3.5%.

Amazing. Thank you so much. >> Thank you. And if I could just ask you one last question, if there's one thing that he's done or or that's really sort of solidified why this is an attack on democracy. I would say the the occupation of American cities. Um to to quote another sign, UM THIS IS AN open book history test and we're failing. I love it. Great. Thank you so much. >> Corey, these demonstrations have been described as the largest coordinated protest against authoritarianism since 2020 and the largest protest against one president in one day in American history. From your perspective as a constitutional scholar, what parallels do you see between the No Kings movement and earlier movements in our history when citizens rose up specifically against executive overreach?

Well, I think what defines successful social movements, and there have been unsuccessful ones, is a clear message and one that's universal. And in my mind, the recovery of the This is, of course, with the presidents and the people By the way, now out in paperback is about five leaders who threatened democracy and the citizens who fought to defend it. And the citizens I profile who defended democracy from previous presidents who threatened it, what they all share is a concern to use the language of the Constitution in terms of its universal values. The First Amendment and the right to dissent, the idea of equal protection as a resistance not only to slavery but second-class citizenship for black Americans, the idea of the rule of law and the resistance to Nixon's criminality. And all of that resonates, of course, with the attacks on democracy that we're seeing now. And the just the words No Kings are a callback to the Declaration of Independence. I tell a story in the book about Martin Luther King Jr. who was using a lot of theology, the language of natural law, to argue

against segregation. He was quoting Thomas Aquinas. Great quote, by the way, but an unjust law is not a law. But over time, what he was hearing, in particular I tell the story of a young student named Herford, is you need a different way of sending the same message. Use the Constitution. Use the anti-tyranny principle that's at the heart of both the revolution and the Constitution itself. And King in Letter from a Birmingham Jail, you see him talking about the Constitution. You see it, too, in his amazing last speech where he talks about He's using the refrain, "Somewhere I read about the freedom of speech. Somewhere I read about the freedom to protest." And that refrain, "Somewhere I read," he means reading it in the Constitution. And that's what No Kings does. It taps into our best moments.

The Frederick Douglass reclaiming of the Constitution as Douglass often said, "It's a document that says we the people" on the page in the preamble in the first three words, not we the white people. That's what No Kings is doing. And you know, if you had any doubt that this was just some superficial slogan when you listen to these interviews, they make it so clear from the children to the older people to everyone in between that this is a reclaiming of the American Constitution. That's why I left so hopeful, so energized despite the horribleness of what's happening from the White House. I just want to say, everybody imagine if Joe Biden had posted an AI video of himself wearing a crown in a fighter plane marked King Joe dropping literal feces on, oh, let's just say a March for Life rally. I mean, imagine. Like Mitch McConnell would have risen from the crypt. Laura Ingraham would shave her head. Corey, I I actually think this was the most accidentally honest video Trump has ever released cuz metaphorically,

he's been doing this to peaceful Americans for 9 years. I don't see any parallel in history for a president having this kind of contempt openly expressed in such a vulgar way for the American population. I I mean, I'm trying to Hillary Clinton said baskets of deplorables like meaning a minority of her supporters and she was raked over the coals for that for months. This video was not mentioned on any of the Sunday morning shows. They were not asking Republicans to justify the dumping of feces on Americans.

I I mean, Agnew saying nattering nabobs of negativism, I don't know where we come anything close to this. No. >> To an executive showing this kind of hostility vulgar >> Well, in the open. You know, when you listen to Nixon's tapes, it's full of horrible slurs and >> But that's private. But it was private. >> was in private. Yeah. And this is doing And that is kind of Trump that he takes a lot of what Nixon did in private and just does it publicly. And you know, it really sends a message, too, that's consistent with his hostility to the rule of law, to democracy, and that his opponents, as we've talked about in a previous podcast, are his enemies. That's one thing that he's he's just most consistent in saying that, you know, I hate my enemies.

In fact, when he talked about Charlie Kirk, he talked about the difference between Charlie Kirk's patients and his own. And this video just sums it up. It also, you know, how crude this is. It's not funny. He has no sense of humor. And it, you know, it shows his his narcissism and his concern only for himself. And so when you have him doing that, though, and we have this really I just I can't say it enough, brilliant slogan of No Kings, he's just making our point for us and showing us how dire it is that that we rid the country of him and his movement as soon as we can. Yeah. I mean, the video just proves he hates Americans, he wants a crown, and he needs an oxygen mask to breathe. You know, let's let's turn to the latest ruling from the Ninth Circuit Court of Appeals, Professor.

These two Trump-appointed judges just cleared the way for any president to deploy federalized National Guard units into Portland and potentially any US city even if they're lying, even if there's no reason. There's a lot to unpack here, but let's let's begin. What's your immediate reaction to this decision? Well, you know, I think it it I'm going to hearken back cuz we've gone in depth on what the law is here. And the law is very clear in the Posse Comitatus Act that the president can't use the military as a police force domestically.

Now, how is he going to get around that? He has what to my mind is just an absolutely ridiculous way of doing it. It's to say that what's really going on is that we're protecting federal buildings and that the protests in Portland are a threat really to the functioning of ICE facilities there. But when you look at the facts and you look at the protests, which we talked about last week, these people in animal outfits being absolutely silly and dancing. The idea that it's a real threat, you know, factually is wrong. But as I said before, and we're seeing the court do this, sometimes it just defers to the president's judgment about what's what facts are rather than looking to actual facts. So in the travel ban case, for instance, they famously, you know, looked at He had told us, "This is a I want a total and complete shutdown of Muslim immigration into the United States." And then after a few tries of rewriting it, what they were willing to say is, "Look, the president's saying that's not what this is about anymore. What the president's trying to do is to ensure security. And these

countries that happen to be the same countries that he banned under the Muslim ban, just coincidentally, are the same countries with embassies that are not cooperating with us. And so what we're going to do in the case of these In this case is to This is the Supreme Court now in in the Hawaii case. What we're going to do is just defer to to Trump and defer to the president. If he thinks that there's a security risk, then there is. And that's what this panel of judges, I should say, it's not the full Ninth Circuit. It's three a three-judge panel and two judges said this, that's enough for a majority there, that, you know, we're going to defer to his judgment. And I think that's a total mistake. There was a dissent. Both of those were Trump appointees from the Clinton appointee. And the Ninth Circuit has an opportunity to meet on bunk, to to have the entire court, which is a large number of judges to to overturn that decision. And I'm hoping that's what's going to happen because frankly I find it implausible that what's going on is the protection of buildings from people dressed as

animals dancing around. I mean, yeah. And that's, by the way, that's that's it there. Like the fact that that God bless Judge Susan Graber, the one non-Trump appointee who wrote the dissent. I mean, she actually had to write the words inflatable frog costumes in a federal dissent. Corey, there's no rebellion, there's no invasion, there's no lawbreaking. There is not a single government entity that has been stopped from doing its work. There is Portlanders with too much kombucha making paper mache guillotines, and that somehow equals a need for martial law.

Judge Graber basically said the the ruling was absurd, pointed out the protesters' biggest crime was dressing funny, but the Trump judges said, well, maybe he is exaggerating, which means lying, but the president can exaggerate when he's deploying troops against citizens. I mean, they they they said even if Trump's lying about the situation, it's essentially fine because there could be other facts that might justify it. And at one point they actually said that the previous judge should have had more deference to the president. Professor, I thought the job of the courts was deference to the law, not to a guy who tried to overthrow it.

Well, you know, that's just a fancy way of saying that the idea of deference, exactly what I've been saying that. And I love your way of putting it, John, that it's just that really sums up what the failure is here. The job of courts is to interpret the law and to protect us against those who violate it. And if that happens to be, you know, a powerful person, a governor, or a member of the executive branch, or even the president of the United States, that's their job. That's what the case Marbury versus Madison is all about. And I'll say just a little bit about that case. It's a case that dates all the way back to the founding period, and it's a moment where the Supreme Court basically said, look, the courts are supposed to enforce the law. The Constitution is our fundamental law, and so of course we're supposed to enforce the Constitution. We can go into depth in the facts, and it's an interesting period of history, a transition from Adams to Jefferson. But the most important point is that idea that in Marbury versus Madison the Supreme Court made it very clear. They enforce the law, and

they enforce the Constitution. And here, what are they doing? They're saying we're not going to enforce the law even though it prohibits the president from using the military in the most important kind of limit as his own private police force. We're going to instead defer, or have deference, as the court says, to the president's own judgment. And even as the president lies, that his judgment includes all of the circumstances. And who are we to second-guess him? Well, that's the job of courts is to second-guess presidents who are going to violate the law. And these two judges are are undermining that whole whole separation of powers. And you know, part of the awful thing about the self-coup here is if what was happening is the president was trying to seize power from the Congress and seize power from the courts, and they were consistently fighting back, you know, I that would be better. But that's not what's happening.

So often, despite some victories, and we talked for instance in depth about Judge Breyer in the LA case, but despite those victories, we have a lot of instances of the Supreme Court and now this panel from the Ninth Circuit literally handing over the power. And this battle over Oregon, to him is is just one front in this wider war to use the military to destroy democracy. But also, I mean, these two judges in the majority argue the president can consider the totality of circumstances when determining whether regular forces can execute federal law.

I mean, what does that mean in practical terms? You know, it seems like it's handing the president near unchecked authority. And the fact that they are they that they are going along with this despite the fact that there is no evidence seems that they're really saying 2 + 2 is 5 because the guy who hired them as judges wants them to say 2 + 2 is 5. I mean, as scary as it is about how they're handing a president unchecked authority, what does this reveal about the long-term impact of these Trump-appointed judges on American constitutional law?

Well, I'll I'll slightly push back against the analogy cuz I think he's partly right about 2 + 2 is 5. I think what they're saying is, look, 2 + 2 is 4. Everybody knows that. We're not total idiots. But when it comes to constitutional law, if the president says 2 + 2 is 5, we're going to defer to his judgment because he's the president. And I don't I don't know what's worse. I mean, they're not pretending that this is definitely the case that the buildings are are under danger, but they're using language like totality of the circumstances and deference to really sum up the idea that they're not going to do their job, which is to enforce the law, and as they would put it, second-guess the president, that the president knows best, and we're going to defer. Now, does that sound like democracy? No, it's authoritarianism.

And in that case, Marbury versus Madison is supposed to stand for the opposite idea. Well, then let me just slip one more ring of terror into this because all this is happening while we are murdering people in fishing boats off the coast of Venezuela in foreign waters with no evidence, no warrants. And while we're doing that, the US has quietly been massing 10,000 troops near Venezuela. 10,000 troops, warships, bombers. For what? Venezuela being a country that hasn't attacked us, hasn't threatened us, but they do have oil that Donald Trump thinks needs liberating. And so when I hear Donald Trump say, we're looking at land now cuz we have the sea under control, to me it sounds like we just killed 29 innocent people in boats, we want to upgrade to land-based slaughter. And this gets me terrified because this is how American war crimes start, Corey.

Fake threats, fake intel, fake patriotism, real dead bodies. I keep worrying that these boats are going to be the next WMDs. And they had these two men that survived one of the strikes, and they announced over the weekend, when it would get very little coverage, that the two men were being repatriated to their innocent countries. So if those men ever told their story, I guess we'd know this for what it is, that it's a taxpayer massacre of innocent people. So I mean, like not to get in this rabbit hole, but either either Trump is murdering innocent civilians, or he just freed two dangerous terrorists.

There is no option three. That's right. >> in the middle of all of this, everyone's connecting the dots, looking at Project 2025, and wondering, is this to try to steal Venezuelan oil, or is all the drug dealer killings a dry run to say we have an invasion? And from a constitutional perspective, how does this ruling, that now any president can send any troops from any state to another, I mean, how does it test the boundaries between civilian law enforcement and military power on US soil?

Well, I will say, you know, the court didn't go so far as to say that this is definitely okay. It was a prelim preliminary ruling. They said they were going to defer, at least for now, to the president's judgment. They took his word that he's protecting buildings, that it's not that they said that policing is okay. So there there still are limits here. And again, it was only two judges of this very large court of appeals, the Ninth Circuit. So there still is room to fight back. But that said, I don't want to be too optimistic because, you know, what Trump is doing is in his use of the military here and in the case of the boats, is he's he's really trying to replace our system of law with military authoritarianism. And command of the military is one way to do it. I will say, in the case of the boats, you know, he says these are drug traffickers. Well, why are there one thing that an expert in the subject told me is, you know, why are there so many people on these boats? It's weird.

>> Yeah. The drug traffickers would have very well could be >> Why are they blowing up the drugs? Why are they blowing up the drugs and vaporizing the evidence? And it could be vulnerable migrants. You know, the point is, without due process, we don't know who they are. And, you know, with a kind of willy-nilly unauthorized use of force, without the the congressional authorization, the military has no boundary. It's supposed to be Congress that declares war. And we're supposed to have rights of due process before force is used against us. In the Guantanamo case, we talked about this with Jake Tapper, actually. I thought this was very important. It was very common to say, look, once you're outside American territory, there is no due process right. So in Guantanamo, for instance, the Bush administration tried to say that's a law-free zone. And the court pushed back against that. Now, despite all that Trump is doing in so many more ways than just Guantanamo, undermining all of it, using the military domestically, attacking the boats, and certainly the trying to start a war, although it's

supposed to be or potentially starting to trigger a war, it's supposed to be Congress, not the president, that does so. What does it all amount to? It amount amounts to authoritarian power and to a system that's so weak, with the courts, despite my hopes of pushing back, ceding control, Congress ceding control, that dictatorship is is close if it's not here already. Well, we got to take a break or Wendy's going to throw us in jail. But we are now the kind of country where the courts defend the dictator, the troops defend ICE, and the protesters are defending democracy. We'll be right back with The Oath and the Office. Welcome back to The Oath and the Office. I'm John Feal along with Professor Corey Brettschneider.

Corey, let's move from war zones in the streets to something scary, academia. You have written about the so-called compact that the Trump administration has offered universities, this trade of academic freedom sort of for political compliance, right? I mean like like adding on conservative propaganda to your curriculum in exchange for priority access to those federal grants. Brown University rejected the deal. Congrats, Brown.

Columbia, hang your head in shame. You call this a horrible bargain and said that Brown's refusal should inspire other universities. Can you break it apart for us, Corey? What's at stake in this offer? It really sounds sleazy. Sure. I mean, the Trump administration has moved from threatening universities with withdrawal of funds to the stick to the carrot. And the carrot is they approached I I think seven universities with what they call the compact, a proposed contract. You agree to the following provisions and you'll be favored in our grant applications. Now, to begin with, you know, if you're talking about distributing cancer funds, you want the people who are good at cancer research, not the people who agree to your compact. But let's talk about what's in it and you can see how frightening it was for everyone at these universities, for America, but frankly for me, too, being professor at Brown that potentially was you know being offered this deal. What it talked about is that units that that disparage or or really criticize conservative ideas

could be disbanded. And it talked about the need for the university itself to not engage in criticism really of the administration. And so when it comes down to it, it was not not really subtle. It was you know, shut up your faculty who are criticizing us. Don't criticize us yourself and we'll give you millions and millions of dollars in grants. And in such a clear voice, the president of the university and many members of the faculty said no way. And I'm so thankful for that because if we would have agreed to that, I don't think there was any chance we were going to.

But really you know, how do you how do you do what we're doing every week? How do you speak out against the president? How do you Yeah, I I am disparaging the ideas of the president of the United States that say that he can use the military domestically, that he can attack boats with you know, claiming that they're drug smugglers when there might be Yeah, why why do I why why do I suspect that Liberty University won't face a withdrawal of funds for criticizing President Biden? You know what I'm saying? Like it's just a shakedown. But what I love is this, Professor. You you >> actually Oh, sorry, John. Well, no, you just you just get my heart every time cuz you argue this every time. I interrupted.

>> No, you got it. On that point about about about Biden, I do think it's an interesting point but that what they are saying is that in the case of in the case of of Bob Jones University for instance, they're using this as a model. Bob Jones University allowed black students into the school but once there prohibited interracial dating, prohibited membership in the NAACP, even prohibited advocacy of the right of interracial marriage after that right was established by the Supreme Court.

And when Bob Jones refused to change its policies, the IRS revoked its tax deductible status, its 501c. So that's what they're saying, oh, you guys did it to us, we're doing it to you. Of course, here's the difference. They were shutting down civil rights and the the Bob Jones and the that case, the Nixon administration by the way, it was Republican administration was protecting civil rights. In this case, the administration is trying to use financial incentives to shut down the most basic liberties that make a university a university.

Absolutely. And I got to say, I mean, you your piece in the New York Times that moved me so much was because you you wrote that Brown's stance in all this represents a moral defense a moral defense of the concept of the university as a space of free thought. And you know, I'm just like, wow, these these guys are so evil, Corey. J.D. Vance has us all defending the Catholic bishops and Donald Trump has us defending Ivy League higher ed. But it's it's true. I mean, Brown's stance is all about defending a a school as a place of critical thinking and free thought and not coerce belief.

I mean, why is that principle more urgent now than at any time in recent memory? I never thought we'd need to have this conversation. I mean, how could you have a scholar of the Constitution? How could you have a political science department or a philosophy department talking about matters of ethics or justice, talking about the law and not address and disparage the ideas of the Trump administration which are trampling on all those things. And so when you start to think about it, this isn't just like a small thing, you know, that professors on Facebook can't say bad things about Trump or that we're not going to have a certain kind of event. It goes to the heart of what a university is, to the kind of inquiry that we're supposed to go through. The economics, the are tariffs going to be inflationary? Oh, that's disparaging our ideas in the Trump administration that love tariffs. I mean, how can any of these departments function? None of them would make any sense. Climate change, oh, we're facing the scientific consensus, we're facing climate change, we're doing research on that. No, that's disparaging our ideas. It threatened the

entire idea of a university. Would have turned it into something else. Call it something else. Call it a corporation or something but not a university. And that's why this was such a really frightening moment and I should say it's not just Brown now. MIT was first, Brown was second, Dartmouth has followed. And you're seeing similar statements from all these university presidents. I should say too, Chris Eisgruber at Princeton, the president of Princeton, somebody who has long been a mentor of mine, the Harvard University, they weren't even approached because they've been so clear that no way we're making any kind of deal like that. They're going to shake down clown college before this is over. But you know, Corey, I I don't really have any memory of Nixon as a president. To me, when I was a kid, Nixon was an old guy I used to see at the Mets games. He he had his seats right next to the Mets dugout and I used to see him like almost every weekend. I I just stare at Richard Nixon enjoying the games.

I feel like I know Nixon better than ever because I do this show with you. And for some reason, his name keeps coming up when we talk about this administration. I just want to ask, are there any parallels between this moment and past attempts like the Nixon years or or even Joe McCarthy to politicize higher ed? There is a lot of comparison. Ezra Klein and others have been having a lot of discussions about the parallels between the McCarthy period, the Red Scare and our current moment. And I think it's helpful to do that but I you know, I'm focused on the presidency and why so much of what's happening is so dangerous because it is coming from this incredibly powerful office. And that wasn't the truth that wasn't true in the McCarthy era and I think that makes it very different. Yes, it was a powerful senator, McCarthy himself and he had allies in the House Un-American Affairs Committee led a lot of the Red Scare and the attack on Hollywood for instance. But Congress and these individuals in Congress are nothing compared to the power of the president and that's always

been true. So you know, you didn't have Eisenhower saying any of these things. In fact, you you know, Eisenhower was a target of Congress in many ways. And you had two powerful branches going against one another. Here you don't have that dynamic. It's it's so so it is to me not parallel. It's completely different. You have the president engaging in not just a Red Scare but an attack on dissent. And you have Congress acquiescing and the courts unfortunately mostly acquiescing. That makes it very different and I think the difference is you know, it's it's it's misleading to think that that the Red Scare of the McCarthy period is the parallel. That's why I'm always concerned to keep the institutional parallels the same. And so the shutdown of free speech in the Adams administration, the Dred Scott case with the acquiescence and and support of President Buchanan, those instances where presidents threatened democracy, those are the ones that I think it's most apt to draw on.

Yeah, so here's here's the big question then. Let's bring it back to the Supreme Court because you've also been closely following this Louisiana case going before the court that could effectively gut Section 2 of the Voting Rights Act which has been a dream of mediocre white people for over 60 years in this country. Corey, what is at the core of this case? Well, you know, the Voting Rights Act, let's just start from the beginning, is I think the most monumental achievement in the history of American democracy at the behest of the marches led by the Civil Rights Movement, the Selma March most famously and the violence that the marchers had to endure.

There was pressure put by a by a social movement in favor of constitutional reclaiming on a president. And just to be specific, what they were seeking to reclaim was the promise of the 15th Amendment that guaranteed the right to vote regardless of race. And that original 19th century version was for men and Frederick Douglas and others sought to expand that that eventually did happen in the 20th century. But the the amendment had become so eroded by things like literacy tests, by limits on the voting power of black Americans by diluting votes for instance.

And what the Voting Rights Act did is in a series of sections, it corrected those. And one of the sections was Section 5 that looked at places that had lots of discrimination and created a procedure called pre-preclearance where if you wanted to change your your votes, you had to apply to the Justice Department. It was using all the branches of government, the courts, and the Department of Justice. Again, these are all the all of the methods they had to try to make it harder for certain people to exercise this right. And so, what happened in 2013, as all recall, and I'll never forget when the Supreme Court gutted the Voting Rights Act in Shelby County versus Holder, cuz they did it the same week the film Sharknado 2 got greenlit. And I always believe these two things are correct. The court essentially said, "Well, all of these former Confederate segregation states that had these pre-clearance rules to keep them from denying the vote to certain people, well, it's not fair to do that to these racist states because in John Roberts'

view, there's a black president. That means there's no more racism anymore." So, instead of the smart thing, which would have been apply the pre-clearance rules to all 50 states, not just the ones that have been a problem, make it fair, instead, the states that had been trying to go back to the good old days went back to the good old days, and it suddenly became voter ID law city nonstop for the last 12 years. Am I getting all this right? That was great. And you know, the just to pull out even more what you're saying, in that case, and of course, this is all setting up for the current moment, they essentially gutted Section 5 and this pre-clearance idea, and that they used two ideas. One is what they call the equal sovereignty principle, that was like, "You know, you're not being nice to the states that are being singled out here. You're you're saying that they have a history of racism, and that's unkind." That was one idea, which to my mind, it's like, "Yeah, actually, there is a history of racism, and it's not accountability?

Accountability to the voters? Accountability? Yeah. Yeah. How's your town halls going, Republicans? Yeah. Sorry. And the second idea that runs through it, that's related, is this idea of color blindness, that somehow that there's a harm in bringing up race, even if you're trying to fight racism. And that second idea is what's going to go to the heart of the possibility that they might. And this is worrying, but it really might happen. Not just what they did to in 2013 to Section 5, but that they might gut the core of the Voting Rights Act, Section 2, which for a long time they they've indicated, "Oh, no, we would never do that. That's the 1965 That's Martin Luther King. That's Lyndon Johnson.

That's the core Democratic protection of our society." By the way, you know, when Malcolm X gives the famous ballot or the bullet speech, he is advocating for the passage of this legislation. So, even people who were seen as the most radical critics at the time are brought in by the passage of this law that really establishes in for the first firm time in American history since the 15th Amendment and since the Enforcement Acts, true democratic right to vote. And now here they are having whittled away at it. They might go after the core of Section 2, which really protects against discrimination in the right to vote. And without Section 2, if they really struck it down, could we have things like literacy tests? Could we see them re-emerging?

Would we see any kind of fighting of intentional attempts to dilute black Americans' vote by by by breaking up their breaking up coalitions? You know, all everything becomes on the table. There are no real limits to going back to the long and unfortunately, you know, creative in the worst sense way of trying to disparage and destroy the right to vote. >> No, this is like a horror movie sequel to the movie Selma. And you're right, whenever someone says, you know, color blindness, it generally means as a person who's never been a victim of racism, I don't see racism. So, I mean, before we go to the break, let me just ask you. You've said this ruling could make it virtually impossible to challenge deliberately racially discriminating voting maps.

I mean, what could this mean in practice for minority voters if these mediocre Caucasians get what they want? You know, if a state is drawing its maps in a way to try to destroy the power of of black votes, and it wants to institute, say, one party wants to institute a a white supremacist representation, the way you stop them now is you look at Section 2. You definitely cannot do that under Section 2. Now, if Section 2 is somehow, and this is this is a wild idea, but I just want to make it clear what they are thinking about doing. The court asked for the lawyers to address this. They are taking it up. They could wind up saying that Section 2 of the Voting Rights Act of 1965, later amended in the 1980s, that it's a violation of the demand of equal protection, that color blindness is the rule in the 14th Amendment, it has to be the rule in the 15th Amendment. And somehow, think of the irony, right? It's like you can't You

have to fight racism without taking race into account. There is no way to fight racism without taking race into account. That's how you do it. >> mean it. They don't mean it. Racism to them means, "Oh, a black person made a white person feel bad about what that white person's grandfather did." Yeah. And I have to just say and and sum this up, that and this is a theme that, you know, they started out saying, "We don't like DEI, or we don't like affirmative action, or we don't like preferences." And now they have really pivoted, and this is what this discussion between the two of us is about, to saying, "We don't like civil rights. We don't like the core protections of voting rights in the most important monumental piece of legislation in American history, the 1965 Voting Rights Act." The singular achievement of American democracy, if you had to pick one, would be that. And they're like, "You know what? This is racist itself, and we don't want it."

And what, you know, they don't care. You're right. They don't care about fighting >> Democrats and media Democrats and media have let them reframe the entire debate. When the reality is that this is a political party that is never offended by racism or discrimination or police brutality, but is always offended by policies against racism, discrimination, and police brutality. They're never offended by discrimination. They're outraged by anti-discrimination policies in the law books or the workplace. We got to hit a break. Back in a moment with a couple of final thoughts on a couple of a couple of listener mails as well. This is The Oath and the Office.

Welcome back to The Oath and the Office. I'm John Feigel Sowing, and Professor Brecht Eider, I want to I want to get to a couple of letters, but I mean, between the No Kings protest and the National Guard ruling and these attacks on academic freedom, voting rights at risk, and are we going to war with Venezuela? A lot of Americans are going to be feeling like democracy itself is under siege. It's great the media's covering the Epstein files. It'd be nice to focus on the rest of this. From your vantage point, what's giving you hope? Are we seeing a new civic energy? Something that could restore faith in constitutional democracy? Or is this just Are we just witnessing the collapse of an old consensus? Man, you know, there there have been weeks where I'm like, "Where's the hope?" And I know that's like the the point of our podcast is, and it's what I believe, but it's harder to find. This week, I'm finding it easy.

Being out there on the streets, I I viscerally felt the hope. I felt the idea that we're not going to be cowardly. We're not going to back down to this administration. And you saw it from all parts of America, all ages. And you know, the diversity was part of what was so thrilling being there. And you can see how energized I am on the video on the Oath and the Office YouTube channel. And then I'll say one other thing, which is very, very personal. I mean, really, John, I mean, the idea, how how am I going to keep doing this podcast if Brown made this compact deal? You know, at some point, it it gets a lot a lot of pressure, and I've always felt the the the and and privilege, I should say, of academic freedom. You know, tenure, which I thankfully enjoy at Brown, comes with a huge privilege, which is to speak out, to say the truth about politics, which I see as my job, the truth about constitutional law. And to watch that affirmation from our president, from our administration,

was really, you know, gave me gave me not only hope, but as I I've been saying, you know, courage is contagious. And watching those other universities follow suit. And then, as I did say to the New York Times, and well, we could link to the article on the Substack. I'll I'll write about it this week, The Oath and the Office Substack. Courage is contagious, but more than that, it also, and let's not hide from this, it becomes embarrassing, craven, to to just look out for yourself and take a deal like this. And to the extent that there are any universities out there, and I worry there's one at least, that might do it, you know, think about it. You are giving up academic freedom. You are selling out your faculty. You're not a university if you agree to this. And you know, so I I think it's, you know, we've got our momentum. We've got our hope, but we also have the ability now to embarrass those who who cave. We have a couple of letters from from from your your army of hope, Corey. Who's who's written to us?

Do you want me to read them, or do you want to share them? Sure. Yeah, you read them if you could. Well, um I'm going to read some. We got a letter from Valerie in New York, who who very much likes your fact-based, measured quest for hope podcast. She says, "Every way I game this out, Trump and/or Project 2025 dynasty, possibly integrated with the philosophy of Curtis Yarvin, wins." And she mentioned in our last podcast, we talked about how with the exception of Trump, everyone else who's violated our Constitution and laws can be prosecuted.

Her Her question is, "By whom? Given what is happening, I have zero, zip, zilch, no confidence that we will have a free and fair election in which Democrats can regain power. I may not be the only one who would like a bit of information on how we as American citizens, especially those of us in blue states, can protect ourselves if when we are fully under authoritarian, if not fascistic, plenary powers rule. That's from Valerie and Valerie is clearly very intelligent and she's clearly figured out this is going to end badly and she's I I guess reached that conclusion. I'm I'm not there yet. I see there's another 13 months of these guys screwing things up, conservatives beginning to get more mad every day. 40 billion to bail out Argentina, Epstein files not going away, prices going up, Trump can't stop lying and the protests will still be there.

I'm I'm not bleak on this Professor. Where do you stand regarding Valerie's concerns? I know they're legitimate but where where are you? Yeah, I think for instance this idea of plenary power which is something that you're hearing the administration say, you know, they're it's a different fancy way of saying which is false that they have absolute power under the Constitution. That's not what the Constitution says. You can read it for yourself as we're saying in the Terrace amicus brief that I'm helping to lead. Congress has the power to tax. No taxation without representation was what the revolution was about and Terrace are a kind of tax.

The military can't be deployed willy-nilly. That's not a plenary power. It's restricted by the Posse Comitatus. You can't shut down dissent. There's a a right to free speech. I know the reality which is that this administration is trying to destroy the law but we have to think long-term and what you and I are doing every week and what we're all doing is not only fighting back but fighting back on behalf of the legitimate use of power and I believe that in the end as much as we have these lawyers out there and other comment and question I got is you know, how do we how do we disbar some of these lawyers for instance where lying in court. My friend Ryan Goodman had a report out showing just tons of misleading and false statements made by judges calling out to them. Well, eventually some of those lawyers are going to be disbarred. So it's hard to see it right now. I see why it looks so hopeless but the hope is really there. I should say too. We also had a listener request which is our discussion about voting rights to talk about section two of the Voting Rights

Act and that was from Daniel in California. So thanks for that request. I think we we didn't just answer that. We went really deep into it and the suggestion in that request was in particular to talk about why this is a threat to democracy. So I think we covered it and I think we have one more, right? We do. Yeah, from David also in New York and thank you Valerie. I have the same fears keeping me up at night Valerie. I just refuse to let them guide my perceptions. I have so much faith in their incompetence and the fact that there are more of us but David in New York asked could Congress pass a law that says the military can police locally. Why don't they do that?

Thanks for that question David and we've been talking about the Posse Comitatus Act and we talked also in a previous broadcast about the that's the limits the use of the military in policing. We also talked about the fact that the Insurrection Act is an exception to Posse Comitatus and as much as Trump is relying on this weak argument about protecting federal buildings. He's also making statements and making it clear that eventually he will use the Insurrection Act. And what's so good about David's question is you know, we don't have legislation that makes it as clear as it should be that you can't use the military for policing and you certainly can't use it to to shut down protests. And we need legislation that's clearly a limit on the president's power. So yes, we need a new law that strikes the balance that talks about, you know, how in an extreme emergency maybe the military needs to be used but defines that emergency, limits it and makes clear that insurrection isn't just what the president thinks

insurrection is but that it that it is real examples in which there's danger and that also I think are clear limits and this would require amendments to the Insurrection Act and Posse Comitatus to make them both clear that you can't use the military for normal policing and you certainly can't use it to shut down protest. So part of the hope is that eventually we will recover. We'll talk about how to stop another authoritarian threat and legislation like this is essential. I will say during the Biden administration I tried to do something like what I'm talking about. I spoke to one person, a group of congress people were working on this and I spoke to one staffer that was leading this effort and there was an attempt but it just didn't go anywhere. There wasn't the sense of how dangerous the coming administration Trump was going to be, how much that authoritarian threat is baked into our system and so this question from David from New York it really pulls out the need for recovery legislation. Thank you for these three

questions Valerie, Daniel and David. Thank you very much. Yeah, for me the whole hope is that we are not at a breaking point but that we are at an awakening. Professor, what is the best way for our listeners to follow you and keep up with your brilliance the other six days of the week? Well, check out the Oath and the Office YouTube channel. You can see John and I talking to each other and you can watch my on the street videos which I think are inspiring. You can let me know. Keep sending listener mail to Corey.Brettschneider@gmail.

And I also urge you to join us on Substack. The Oath and the Office Substack is weekly newsletter reflecting a little bit on guests like Jake Tapper. We have Ted Lieu I should say next week which John and I are thrilled about and join us for that too. Ted's Ted's a great guy and I want to thank everyone. I'm on SiriusXM five nights a week. The John Feal Thing podcast is free every day if you don't have SiriusXM. My book is called Separation of Church and Hate and Professor always such a pleasure. I want to thank Wendy and Baywolf and everyone who helps us put the show together and thank you guys for your letters. We do appreciate them. Please subscribe and give us a good review if you're swinging that way because we got to give Professor Brettschneider something to get excited about. He's He's He's checking He's checking the rankings and I I I promised him we'd get back to the top five by Christmas. Corey, thank you so much. I always learn so much and feel enriched by

by cheating off your paper and Thanks so much John. I will say about the rankings which I am very into that it was the one week we were at six. We we still, you know, this amazing group. You're sharing this. You're telling friends. Our listenership just goes up drastically every week and we did get pushed barely out of the top five but I'm sure that we'll we'll get back to it this I know how that feels. Kamala Harris pushing me out of the top five but I'm not bitter. All right, we'll see you next time. John and congrats. I actually have to say it, you know, your book amazing. The Daily Show appearance, the way that you're killing it on the charts of Amazon, the New York Times. Separation of Church and Hate beyond a hit.

>> it's just because the RNC agreed to buy thousands and thousands of copies of my book to artificially inflate the numbers and Oh no, that's Donald Trump Jr.'s book not mine. I confuse I confuse him and me all the time Professor. Okay, we got to go. Thank you guys so much for joining us on the Oath and the Office.