The Three Whisky Happy Hour: High Crimes & Misdemeanors

We lead this week's show with a few short news announcements, including new menu items from McDonalds to excite John, and the debut of a new podcast competitor: Hadley Arkes and his merry band at the James Wilson Institute have launched "The 'Natural Law Moment' Podcast," surely goaded by our constant mangling of his central arguments. WE hope to have a crossover episode with Hadley at some early opportunity, if we can ever get our difficult schedules sorted out.

This round-robin format episode features a vigorous discussion of whether Obama and the Deep Staters (sounds like a bad bar-band, no?) are vulnerable to criminal charges for their obviously bad faith behavior in creating the Russia Hoax back in 2016, whether Obama is immune from prosecution because of the ruling last year of Trump v. US, and whether these actions properly rise to the level of "treason" as is alleged by DNI Tulsi Gabbard. 

Our second segment reflects on a pair of articles Steve and John wrote for a Civitas Outlook symposium last week on "Statemanship and the American Presidency." John Yoo's entry slobbers over the legacy of Andrew Jackson, while


Steve's entry, "Taming the 21st Century Prince," is a more philosophical exploration of the issue, and, contrary to the careless calumnies and reckless imprecations of John, does not contain a single reference to the Clean Air Act!

And our final segment delves into a recent bold law review article by a young lawyer friend of ours, Deion Kathawa, entitled "'We the People' Are the Last Word on the Meaning of Our Constitution." His argument is bracing: Congress, because it is the political organ closest to the people, should have the power to override Supreme Court decisions. While agreeing with Kathawa's premise about the ultimate constitutional sovereignty of the people on account of the first principles of the Declaration of Independence, we're skeptical about his proposed remedy. What do listeners think? (We hope to have Deion on as a guest at some point soon to defend himself.)

Finally, some new AI generated 3WHH custom poetry, and more revenge bumper music.

Episode Transcript

Speaker 1 (00:00):
Takes a lot of bandwidth for all this beauty. Steve,
I know, Oh are you recording whiskey?

Speaker 2 (00:06):
Come and take my pay the money ry, oh whiskey.

Speaker 3 (00:12):
Why think alone when you can drink it all in
with Ricochet's Three Whiskey Happy Hour. Join your bartenders, Steve Hayward, John,
You and the international woman of Mystery, Lucretia.

Speaker 1 (00:27):
Where they slapped it up and David, ain't you easy
on the souldiers?

Speaker 3 (00:31):
Tap got a giving? Well, the dog days of summer
are upon us, but there's no letup for the swilling
hounds of the three Whiskey Happy Hour. Hi, everybody, it's
Steve here out in California. John is in Texas, and
Lucretia is at her undisclosed location where he catches her
international plots of mystery. Hi guys, how are you not

(00:53):
so bad?

Speaker 1 (00:53):
Not so well, Steve, because I have to tell you
I have no Internet.

Speaker 3 (00:57):
Yeah, I know, you're on your phone and Starling is
down and the creation I both use Starlink most of
the time, and I have a backup, and she's on
her phone so we can't see her today.

Speaker 1 (01:07):
And all I'm gonna say, it's harder to launch international
plots when you have no starlink, it's very darlint.

Speaker 4 (01:18):
Starlink is an international.

Speaker 1 (01:21):
For months, John, and this is the first and only
time I've ever even had the slightest issue with it.
And it's down everywhere, as you pointed, out throughout the world.
So hopefully comes back up soon. Elon, if you're out there,
get busy.

Speaker 3 (01:33):
Yeah, something's up with this. I think this will be
a big story when we find out what's happening. So
what we're doing listeners today is we're going to do
our round robin format where we really do share hosting duties.
Each one of us in turn will pick one story
or issue of the week. But first before we start
into that, formerly a few quick news updates and announcements.

(01:54):
The first one I'm pleased to say is that Hadley
Arkis has started his own podcast along with Gerard Bradley
at the James Wilson Institute about our natural law moment.
And we're going to take complete credit for them doing
this because we have been, you know, using and abusing
Hadley here for weeks and we did we still want
to have him on here, and we just had scheduling problems.
But I'm included the show notes a link to the

(02:16):
new podcast where Hadley takes out his revenge on us
for abusing him, and everyone should bookmark that and drop
in who are interested in the subject. Second item, good
news for you. John McDonald's announced earlier this week that
they are going to test market dirty it is, which

(02:37):
I'm not sure what that is, but it's its flavored
cold brews. And you know, pictures they show look like
pina coladas and Cosmount or something. I don't know, but
I figured that's probably welcome. An important news for you.
We'll go great with mcgribb.

Speaker 4 (02:52):
If you, I don't know if you've seen these things.

Speaker 2 (02:55):
You know, if you go to these I frequent these
Asian drink places where they mix coffee and sweet sometimes
fruits and then weird jello shots and all in one
giant drink. It's like Steven Linda's grad school days and drank.

Speaker 3 (03:12):
No.

Speaker 4 (03:12):
You know, I welcome this. I welcome this on McDonald's part.
Thank you.

Speaker 3 (03:17):
I'll have you and listeners know that I gave up
dak reeves and any drinks with red coloring and umbrellas.
And before Ronald Reagan was sworn in for his first term.

Speaker 1 (03:27):
So anyway, and I'll have you all know I never
drank them. I just drank Scotch and black coffee from
the time I was fourteen years old.

Speaker 4 (03:37):
Really, why does that not surprise me?

Speaker 1 (03:39):
I know because my dad. You know, I'll be honest
with you. I also Steve can attest to this. He
used to smoke many years ago. And I used to
get up with my dad in the morning because in
the summers I worked at his glass manufacturing plant, where
it wasn't his he but he was a plan engineer,
and we would get up really early in the morning,

(04:00):
lovely view of the valley of this huge picture window,
and we would have what my dad referred to as
a whorse breakfast, which was two cups of coffee and
three cigarettes.

Speaker 4 (04:13):
Wait, why why don't why don't they eat better than that?

Speaker 1 (04:16):
Come on, well, I actually still have that minus a cigarette.

Speaker 2 (04:22):
So wow, Well I just see I imagine fourteen year
old Lucretia drinking black coffee and scotch and smoking while
she's cleaning a rifle.

Speaker 4 (04:31):
So that's what I imagined.

Speaker 1 (04:33):
It was California, so rifles were a little harder to
come by then.

Speaker 3 (04:37):
Well, you know, my mentor Stan Evans like to say
that his favorite breakfast was coffee and cigarettes, one a
leafy vegetable and the other a lugume, because breakfast is
the most important meal of the day. Okay, next night.
It's an update for something, Lucretia, you brought up last

(04:58):
week and you made a passing car meant that the
Progressives like AOC in particular. And your favorite person, miss
a sturdy eyelashes herself, Jasmine Crockett. We're raising money hand
over fist. Well, the numbers are out today and the
top money raiser in the House of Representatives is in
fact AOC, with nearly fifteen million dollars raised this year alone.

(05:21):
That is twice as much as the Speaker of the House,
Mike Johnson, and it's more than twice as much as
any other Democrat, including I think it's four times as
much as hockeying Jeffries, who would be Speaker of the
House if Democrats won a majority. And if the person
I think most astonished by that or worried about it,
I should say, or most anxious about it, has to
be Chuck Schumer, because AOC can pretty much take all

(05:46):
of that money and put it into a Senate race
if she wants to. There are a couple wrinkles between
House committees and Senate committees, but they're easily overcome, I think.
And so she's got a big war chest for whatever
she wants to do, and I suspect she will do
it right anyway. And overall the Progressives are if you
sort of total up all the people along the Progressive Caucus,

(06:07):
it's like two thirds of all the money the Democrats
have raised so far in a selection cycle. So not
good news for people to want to move the Democratic
Party back toward the center, whatever that would be.

Speaker 1 (06:17):
Steve Can I ask you a question about that. Sure,
Where did you read it.

Speaker 3 (06:22):
Morning?

Speaker 1 (06:23):
Well, yeah, that's where I read it too, And what
was interesting to me was the usual pandering to the
left that we have come to expect from the once
vaunted Wall Street Journal that well, no, wait, My point
is that they had to put in there that all
of her money came from this new grassroots effort to

(06:44):
get small donors. So they make it sound like all
of the poor people in the United States all sent
her a dollar because they think she's going to be
the person who saves them from their poverty and of course,
the point of the matter is she's getting huge, huge
contributions from stupid leftists with more money than brains, and

(07:04):
that's what I really want.

Speaker 3 (07:06):
We'll say about that, that's not I mean, that's not well,
part of that's right. She actually can't. Her own committee
is bound by the contribution limits. Now whether now a
separate independent pack can take, you know, unlimited amounts from
George Soros or something like that.

Speaker 1 (07:20):
But we know that Act Blue was really good at all.

Speaker 3 (07:24):
Yes, yeah, no, you're right there. I'm quite sure that
Act Blue and others are bundling lots of small contributions
for her and Rocanna and Jasmine Crockett and so forth. However,
it's significant, I think politically that she is getting these
individual donations and not from packs the party leaders. They
always get the money from the corporate packs and the
labor unions. And the fact that that AOC is getting

(07:47):
contributions from individuals, even if bundled by Act Blue, tells
you where the center of gravity the Democratic Party is
and where the energy is. And that should be very
worrying to everybody. That's all anyway, Two more quick things
also out today. Joe Biden has sold his Memoirs for
ten million dollars, which a is less than Clinton, and

(08:08):
the Obama's got by quite a bit, and no one's
going to read that book. Point two, we all want
the film version of Hunter Biden's memoirs, except we already
saw the film version a few days ago, if you
caught any of that tube.

Speaker 1 (08:21):
So which publishing company was stupid enough to spend ten
million dollars in a campaign contribution to somebody who can't
run for president?

Speaker 3 (08:28):
Yeah, well it's the Hashet Book Group, which is now
owns a whole lot of the big imprints. So I
don't know if it's going to be Hashet itself or
one of their I forget who they own, but they
own a lot of the prominent names, and so you
know it doesn't matter. I mean, it'll be one of them,
and that book will be on the remainder table at
Costco probably the afternoon it comes out. So there's all that.

(08:49):
And then finally before we take a break, before we
get into our main topics today, John, we have a
question for you from several listeners and readers, So be
sure to turn your microphone back gone and don't fall
asleep on us. There's this crazy story, crazy to us
lay people out of what New Jersey where a bunch
of federal judges are saying, no, we are not going

(09:10):
to accept Alena Habba, you know, Trump's former personal lawyer
as the acting US attorney for our district. And the
question people are saying is can judges do that? Is
it this a separation of powers problem? Is there some
statute that I have missed or that we've all missed
that gives the judges some say and who can represent
the government in their courtrooms? What's going on.

Speaker 4 (09:32):
Here as usual? Steve?

Speaker 2 (09:36):
You think because it's not in the Clean Air Act,
something that is going on. Come on, come on, man,
there's another statue.

Speaker 4 (09:45):
There's lots of other statues.

Speaker 2 (09:47):
So this one's called the Vacancy's Act, And actually she's
just being treated normally as anybody else would be in
the under Vacancy Is Act, and she's just not getting
the benefit of a special provision that only applies to prosecutors.

Speaker 4 (10:02):
So just explain it real quickly.

Speaker 2 (10:04):
Anytime there's a vacancy in a position for which the
President nominates and the Senate confirms, the president can put
someone in their acting for I think one hundred and
twenty days, and so she's just reached the end of
her period. Usually at the end of that period, then
the career person who's in that office becomes the acting

(10:25):
And you know what, this was changed so that President
Clinton could not keep repeatedly making someone acting head of
the Civil Rights Division of the Justice Apartment, someone who
the Senate kept rejecting over and over again. So there's
this twist for prosecutors, for US attorneys. This is I've
always thought this violates a separation of powers, but it's

(10:45):
been with us since the founding. The courts are allowed
to appoint someone to be the US attorney in a
district if there's a failure like this, And so all
that's happened here is that district judges there have said, no,
we're not going to use that special power.

Speaker 4 (11:00):
Go point at somebody else.

Speaker 2 (11:02):
But it is a sign that the judges there have
don't have much respect for Billina Habba, because if they
did respect her, they would have they could have made
a permanent It's actually one of the few areas in
the executive branch where the judges can actually appoint the
permanent official. It's as if the president and the Senate
had advised and consented. It's this weird wrinkle in the

(11:23):
appointments process. It doesn't apply to any other official in
the executive branch as far as I know.

Speaker 1 (11:30):
And so there you have the rhino explanation at the
very end, which says it's because they have something against
her and not because they're all rabid anti Trumpers that
they decide.

Speaker 2 (11:42):
I mean, she's manifestly unqualified for the job. I mean,
did you see what she did before she represented Trump?
I mean, come on, I don't think she'd ever appeared
in court ever.

Speaker 4 (11:55):
I kind of giggled.

Speaker 2 (11:58):
I mean, I'm laughing because I mean, it's appropriate that
she would be put in New Jersey.

Speaker 4 (12:02):
New Jersey deserves things like this.

Speaker 3 (12:05):
Right. Well, I'll just mention in passing that my late
father in law was US attorney and Reno, Nevada under
President Eisenhower, I think at the age of thirty four.

Speaker 4 (12:15):
Wow Eisenhower. Oh yeah, yes, by Eisenhower.

Speaker 3 (12:21):
You know there are only ten people lived in Reno
in the fifty access. That's really true.

Speaker 2 (12:25):
He was in the middle of the ten people lived there,
and eight of them were under investigation.

Speaker 3 (12:29):
Just oh no, no, that was he was you know,
authorizing and supervising wiretaps of some of the mob people
in Reno and stuff. And no, he was involved a
lot of the mob busting that went on in Nevada
in the fifties. So anyway, so I don't know, if
you know, I don't know what his courtroom experience had
been at that point. But still thirty four is pretty
I think he's like one of the youngest ever appointed

(12:49):
to be US attorney at the time.

Speaker 2 (12:52):
So we will point out that because New Jersey is
filled with criminals and robbers, right being from Philadelphia, we
watched them from across the river. Her it's actually been
a great launching pad for US attorneys. You know who's
amongst Alena Haveba's distinguished predecessors were Samuel.

Speaker 4 (13:09):
Alito and Michael.

Speaker 2 (13:13):
Like some of the greatest US attorneys you know that
I've ever run into.

Speaker 4 (13:18):
And then Alena Habas.

Speaker 2 (13:19):
So I could see why the judges were not impressed. Well,
Chris Christie was Chris yes, Chris yes, Chris Christy too.

Speaker 1 (13:28):
Sorry, there's a lot of hacks out there, and don't
forget that that are US attorneys. I know some of them,
and I won't bring up their names here, but remember
that you're forgetting part of the story, which was Hakeem
Jeffries sending a letter to those judges telling them that

(13:48):
she was, you know, pro Trump and this and that,
and that they needed to uh that she was partisan
and therefore they needed to vote against her. And that
was a complet I mean, it turned it all into
a partisan game. And you know, for that reason, they
should have said, no, we're not going to listen to

(14:08):
Hakeem Jeffries and kept her. That's what I think. Well
they didn't because they're all scum Democrats.

Speaker 3 (14:16):
Some other time, because John was so young, then I
might go back and revisit the Marston affair from the
nineteen seventies. He was the US attorney for Philadelphia that
Jimmy Carter wanted to get rid of.

Speaker 2 (14:28):
You will be shocked, I know that very well because
I dated his daughter.

Speaker 3 (14:32):
Oh my god, this we will have to hear him,
but not this week. And now we're going to go
to a quick break and we'll come back and get
started on what we had in mind all along. Don't
go away, all right, Lucretia, I want to toss first
to you today to find out what's on your mind.
I think I know what's on your mind. And the

(14:54):
good news listeners is Lucretia does not even need her
tinfoil hat today for this story. Lucretia, I think.

Speaker 1 (15:00):
I'm still gonna need it because there's still a lot
of obfuscating going on. But so the revelations that have
come out from the D and I Telsea Gabbard regarding
what most of us knew really happened anyway, was, you know,
the entire corruption of our intelligence services by Obama and

(15:23):
Hillary Clinton. That they were also upset when Trump actually won.
They were all shocked and dismayed. And Obama, of course,
the narcissistic little that he is, couldn't even bear the
thought that he was not going to have another four
years in office. Through Hillary, that they launched what has

(15:45):
to be the most treasonous set of activities ever committed
by a president. And I know a lot of the
ones that you know reading being a sort of a
presidential scholar, I know a lot of the things that
went on. I can't ever anything worse. So what really happened?
There were allegations that the Russians and helped me, Steve,

(16:09):
if I get this wrong, because I don't have the
ability to pull up all of my sources here to
get the steps in the right order. So if I
do this wrong, help. So the intelligence community put together
an intelligence community of assessment that said that the Russians

(16:29):
had been involved in it, had involved themselves in our election,
and ultimately it was concluded that it didn't make a
difference that Russian the Russians and others always involved themselves
in other countries' elections for their own purposes. But then
some things came up about Hillary Clinton's emails. Remember Hillary

(16:50):
Clinton never was never executed for the crime of treason
for keeping her servers in a bathroom and allowing them
to be hacked by the Russians, which we know they were.
And Steve wanted me to mention that the Russians say it, Steve,
because I forget exactly how it went out.

Speaker 5 (17:11):
Well.

Speaker 3 (17:11):
Well, some of the materially found is that the Russians
believed or thought they actually had the solid evidence to
say that Hillary Clinton has serious health problems. She's prone
to rages of temper, she's on the tranquilizers a lot,
and I mean and everyone now immediately remembers the September eleventh,
twenty sixteen episode when she was had to be propped

(17:33):
up and put in the you know, falling down and
you know see later a few hours said, I was dehydrated,
right and anyway, I thought, well that's interesting. And there's
also why didn't they release it?

Speaker 1 (17:44):
Though, Steve there was a reason. I don't remember why.

Speaker 3 (17:46):
I don't know why. I don't know why. Yeah, it
was what a Senator House Committee report had all this,
But I mean, I think the salient points are, First,
Obama was up to his neck in this point number one.
Point number two, they knew it was true, and they
knew that the thesis of the Russian interference in the
election was untrue. But that makes the point three, which
is they went forward with it anyway in a deliberate

(18:08):
attempt hobble Trump once he took office, which you know,
they it's hard to hobble Trump because he's unhobbleable' is
that a word, but it's certain. Look, when you're under
a Special Council investigation, as John knows, it really slows
things down. It dominates too much attention to White House
staff and so forth. So that seems to me as

(18:28):
bad as anything. Nixon is alleged to have done in
Watergate and did do right and went all the way
to the top. And yeah, so.

Speaker 1 (18:36):
Yeah, and there's a lot more to it. You've got
the who actually released some of those emails from the
DNC and and was it you know, Julian Assan just
said all along it was never ever ever Russia, And
it was probably something that what was the name of
the young man seth Rich seth Rich killed in a

(18:59):
burglary that didn't take the burglar, the robber didn't take
his wallet or anything else. And you know, there's just
it's so ugly when anything is involved with the Obama
or the Clintons. But ultimately so they not only did
they publish things that they were untrue, they published things
that they knew the opposite were true. And then of

(19:22):
course go ahead.

Speaker 3 (19:23):
Well there's that seems to me there are three questions here,
and let you start first and then we're going to
get John in on this too. One is is you know,
what are the criminal vulnerabilities of people in the whole
chain of all this? And then second is President Obama,
as they say in legal historicals, stopped from being prosecuted

(19:45):
because of the immunity ruling that Trump won last year
to the Supreme Court. And finally, you mentioned treason. I
want to talk a little bit about that, because I mean,
is this what foreign country are they working on? Behalf
of I think it was a party interest. So and
then there's the of how treason is defined in the Constitution.
It's the only criminal matter discussed directly with litery, peculiar

(20:07):
and interesting conditions. So anyway, whatever order order you want,
whoever you want to.

Speaker 1 (20:11):
Take that, Okay. So the probably the most explosive part
about Gabbard's revelations was in fact not only that Obama
was involved in him but probably directing it. And so
the inclusion of things in that intelligence community assessment, the
exclusion of things, you know, the role of the Peepee

(20:33):
tape as it's often called, the role of Christopher Steele,
the role of the Clinton campaign, and the role of
crowd strike, all of these readers, we don't have time
to listeners, we don't have time to go through all
of it. But I think what it ultimately comes down
to is what do you do about probably most specifically Obama,

(20:55):
Brennan and Komy. And this is where I have to
reach to John and say, if you falsify intelligence and
then leak that falsified intelligence with the purpose of either
affecting an election or damaging a president, is there any
crime there?

Speaker 2 (21:12):
Yeah, there's a question between whether there's anything new and
what Gabert released. And then you're you're hypothetical which is
different to me than what Gabret actually shows, but s
your hypothetical is well, so first there's a crime in
just releasing a classified right classified document. Leaking that is
a violation of the Espionage Act, and that's criminal. But

(21:32):
it's even Oh no, people get prosecuted for the I mean.

Speaker 1 (21:37):
Comy wasn't prosecuted in for instance, for doing it.

Speaker 4 (21:41):
Yeah, this is John m.

Speaker 2 (21:42):
Kin Homy was Comy was referred to the for prosecution
by the Inspector General the Justice Department, but Johnham, John Durham,
the Special Council chose not to bring charges. But they
were I mean that might have been because they didn't
think they could win in court, for example, But I mean,
like you know, journals have been prosecuted for this espionage

(22:03):
and actually Obama his administration prosecuted a bunch of people
for espionage for Act violations. Or you could say, remember Bradley,
Bradley Manning, whatever his name is now Chelsea Manning was
prosecuted and right, so people do get prosecuted under it.
So yeah, if you this, you know, if you release,
if you leaked a classified it's not even just the document. Right,

(22:26):
the way the statute talks about it says you can't
leak defense information. So if they were, if you know,
these officials were leaking information from the documents on the phone,
for example, you could still be prosecuted for that. They
couldn't say, oh, well, I never gave a document to anybody.
That's not a defense So yeah, you could definitely prosecute
people for the facts.

Speaker 1 (22:48):
You can't prosecute Obama, can you.

Speaker 2 (22:51):
So Obama is different because he might get immunity under
the Trump decision. Right, So if you look at what
what I think think Gabbert is claiming, she is claiming
not that Obama manufactured some kind of intelligence or that Obama,
you know, leaked any information. So her claim is that

(23:13):
before Obama had a meeting with his intelligence people. Everyone
knows that, and so before that meeting, the intelligence community
had concluded that Russia had not tried to break into
any voting infrastructure, or had successfully changed any vote or
any outcome of any vote, and then there's this meeting,

(23:36):
and then the Gabbard claims Obama then pasked the intelligence
community to do this assessment to see whether Russia had
tried to help Trump win. And so her argument is
that Trump based I'm sorry that Obama basically did that
with no real grounding in fact, that he must have

(23:57):
done it for the purpose of handicaps happening the Trump
administration when it started out.

Speaker 4 (24:03):
I don't see how that's not covered by the immunity decision.

Speaker 2 (24:07):
I mean, it's an official action, right that Obama can say, Look,
I wanted to see whether Russia actually was involved. That
seems that seems covered to me by the Trump decision.
It's an official act of as president.

Speaker 3 (24:20):
Yeah. Yeah. We may come back to this point in
our next segment, John, when we talk about executive power
more broadly, which is what you want to bring up
for listeners, Lucretia, what do you want to contest her answer.

Speaker 1 (24:34):
I'm thinking about the way the way that the Trump
case looks at the question of what goes on between
president and his advisors as close as advisors and you know,
even the arguments way back from Nixon versus Us versus Nixon, whichever,

(24:56):
it is that those almost always are considered official acts
for the and that they are entitled to. I believe
that falls under the presumption of immunity, not absolute immunity,
but the presumption of immunity. And you know, they made
that distinction because of the effects that worrying about being

(25:24):
criminally liable for those things that you discuss will have
on the Article two powers that you know, the core
powers of the presidency. What they don't say, however, is
that it's not a subject that a court could not
pursue in the same way that if it's what do

(25:45):
they call it, the conclusive and preclusive powers of the
president acting clearly within his Article two stated powers or
congressionally authorized powers, there is absolute immunity. I don't think
it falls under absolute immunity based on reading Trump versus
the United States. Maybe I'm wrong, because you know, I'm
not a lawyer, but what I take away from this

(26:07):
is that what saves a president from being even called
in front of a court to have to explain himself
is the notion that doing so would hamper his exercise
of his core powers. And if it's not that, if

(26:31):
it's not that absolute immunity, then you've got to worry
about what does the court call it? Context, content, context,
and facts. And in this case, I think the court
would have to a court if they brought a criminal prosecution,
they would have to at the very least determine whether
or not this was an official act of the president

(26:52):
that is part of his core powers, or whether it's
what do they call the there's a word, I forget it,
the kind of not quite in the middle of core powers,
and those don't carry the same level of absolute immunity.
Am i am I misunderstanding that?

Speaker 4 (27:08):
No, So I think I.

Speaker 2 (27:09):
Think give the constitutional law about right.

Speaker 4 (27:13):
So the absolute immunity applies to.

Speaker 2 (27:17):
The functions of the president that fall under his uh
you could say soul Article two powers. Then there are
you could say, powers that are I think the phrase
in the depinion might be concurrent, you know, that are
kind of shared with Congress or which Congress deleicated to

(27:38):
the president.

Speaker 4 (27:39):
And that's where then the courses.

Speaker 2 (27:42):
You have a presumption of immunity, but that presumption can
be overridden.

Speaker 4 (27:46):
Now this is the thing.

Speaker 2 (27:47):
So I think just two points one on the facts
and one on the law. You know, on the facts.
You know, I'm not sure that the group said.

Speaker 4 (27:58):
So there's two criminal deferrals going on here.

Speaker 2 (28:01):
And actually I think the one that you know, Gaberd
is I think, really exaggerating what she's got here. She's
definitely got something, but I think she's exaggerating the importance
of it. I find her very unreliable in her judgment
about this. But she's obscuring the more important referral, way,
way more important referral, which is by the CIA. So

(28:23):
the week before gaber did this, John Radcliffe, who's the
director of the CIA and a former prosecutor, he was
a prosecutor in Texas, was an assistant was during Texas.

Speaker 4 (28:34):
He has the CIA.

Speaker 2 (28:35):
Has referred Brennan and Clapper for prosecution by the Justice Department.

Speaker 4 (28:40):
That is way more serious.

Speaker 2 (28:42):
I am not aware of any time that the CIA
has ever referred a former director or a former d
and I for prosecution.

Speaker 4 (28:50):
That's incredible, actually if you think about it.

Speaker 2 (28:53):
And because but Gabert has totally taken the spotlight and
is in fact undermine I think the seriousness of the
CIA referrals because she's pushing this idea that Obama committed
treason or that Clapper and Brennan and Komi committed trees
and based on actually, I think a fairly thin read
of evidence. What I would really want to know is,

(29:15):
what is it that the CIA, which didn't release, you know,
one hundred and twenty pages, right, the CIA just I
think announced in a like a four page memo or
a five page memo that there were serious problems with
the way the Russia hoaks got introduced into our intelligence
agencies and intelligence reports, and they were referring those guys
for prosecution. That's a really big deal, right, That's like, right,

(29:37):
is like the oss E were going to refer you know,
Donovan wild Bill Donovan for prosecution.

Speaker 4 (29:42):
That's really incredible that they did that.

Speaker 2 (29:44):
But people have missed that because you know, they're all
focused on the shiny thing Gabbard's throwing around.

Speaker 4 (29:50):
One more thing about the facts is oh, go ahead.

Speaker 1 (29:52):
Before you go on. I did, before you go on
with your next point. I want to hear it. But
let me just let me let me be political here
for a moment about that, and say, let's assume that
maybe Trump and Trump's best attorneys and so forth, are
overlooking this whole thing, and Tolsey Gabbard puts out pages
and pages and pages of these sorts of things, and

(30:13):
that's what everybody's talking about. But in the meantime, an actual,
factually based prosecution of really in many ways, however you
look at it, whatever you say to Obama about Obama
and this, Brennan and Clapper are just the most despicable
creatures on the planet. And to get them and to
get clean house by prosecuting them and perhaps even getting

(30:36):
a conviction against them would be so so cathartic for
you know, getting rid of the worst excesses of the
deep state. Maybe this is all planned this way. I'm
just throwing that out.

Speaker 4 (30:51):
There, John. I. I mean, I think what's going on?

Speaker 1 (30:54):
You see the argument?

Speaker 2 (30:56):
No, But what I think if I were going to
try to interpret what was going on, I think, you know,
Ratcliffe is a very serious guy, and he's apparently doing.

Speaker 4 (31:03):
A really good job at the CIA.

Speaker 2 (31:05):
You know, he's cleaning house, but he's doing it in
a responsible way. You never read about him, right this
is the best thing for a SI director. You don't
read or hear about them very often right there. But
they're hopefully they're up to no good with regard to
our enemies. And you know, so to refer you know,
the former director of the CIA for Criminal Prosecution and
the heads of the CIA now is a former prosecutor.

(31:27):
That means, you know, like someone who knows what the
just farmant does and what really qualifies her prosecution took
a hard look at this and sent it over.

Speaker 4 (31:35):
That's a really big deal.

Speaker 2 (31:37):
I think Gabbard, who's the d and I who you know,
a few weeks ago people thought Trump was going to
fire her, saw this and decided she needed to insert
herself in some way into this because she's on the
outs with Trump, and so what does she do she?
I think because of that, it encourages her to say
things which I think are just over the top, you know,

(31:58):
like that Obama committed treason. I don't think he committed,
even on the facts that she alleges it. I don't
think he could. You could convict them of trees and
or they committed treason.

Speaker 4 (32:07):
I think he, you know, had this bias.

Speaker 2 (32:10):
All remember back in December of twenty sixteen, people like,
how did Trump win?

Speaker 4 (32:13):
It seems impossible? Blah blah blah blah, so he said to.

Speaker 2 (32:17):
His intelligence people, see if the Russians were involved, I
don't think that's treason.

Speaker 1 (32:22):
That's not exactly how it all happened. Well that's the problem,
all right.

Speaker 3 (32:26):
Let's do this as an exit. Question was first of
all simple my question. I thought charge of treason had
to involve actually doing something on behalf of a foreign government.

Speaker 2 (32:35):
And you have to let the war against the United
States or gave given aid and comfort to our enemies.

Speaker 4 (32:41):
How could Obama under these facts be guilty of that?

Speaker 2 (32:44):
And you have got two witnesses who both witnessed the
same overt act of treason.

Speaker 3 (32:49):
That was my second question. I mean, that's such a
I mean, what were the maybe know the answer to
this that you can do it briefly? What was the
reasoning for being so specific about that's so interesting? Right?

Speaker 4 (33:00):
This is so interesting.

Speaker 2 (33:01):
Yeah, because the Crown in England was prosecuting a lot
of people for treason, and so this is really interesting.
This is the only crime that is defined in the Constitution,
right and the reason why and this is from an
opinion by Chief Justice Marshall.

Speaker 4 (33:17):
This is great in the bur trial.

Speaker 2 (33:19):
So the first interpretation of this clause, the first treason
prosecution is brought against Aaron Burr for his effort to
raise a rebellion in Louisiana. The burg Conspiracy gives rise
to this major opinion by Chief Justice Marshall, and he says,
one reason that the Founders wrote this provision into the
Constitution was to take away from Congress and the President

(33:42):
the ability to find treason because the British had abused it.

Speaker 4 (33:46):
Think about what the British.

Speaker 2 (33:46):
Would have done if the revolution had failed. They would
have prosecuted and hung every single member of the Founding
of the Founding leaders for treason, right, So they want
and they wanted to make it hard to prove, and
they wanted to make sure that the political politicians couldn't
change it.

Speaker 4 (34:02):
So they stuck it in the.

Speaker 2 (34:04):
And so actually, remember Burr undeniably goes down to Louisiana
and he tries to raise a rebellion and he's still
equitted of treason because they couldn't find two witnesses who
saw him do anything over it.

Speaker 3 (34:16):
Hmm, interesting, I love it.

Speaker 4 (34:20):
I love it.

Speaker 3 (34:20):
Yeah, story, well, I am I'm not sure about the
trees and angle. I am with Lucretian saying I'd love
to see some really serious accountability for Brennan and Clapper
and all those other things. Mean too.

Speaker 2 (34:30):
I mean, you know, there you could you could argue
that this is a good case for a special council,
although there already was one with John Durham. But I
think this is there's something here that should be gone
to the bottom of it. I just don't think it's
wise to say Obama committed trees.

Speaker 3 (34:44):
Yeah, okay, could be all right, Let's go to break
and then we will come back John with some thoughts
from you on executive power and continue the same subject.
So don't go away, everybody, We'll be right back. Okay,
we're back, and John, I'm gonna throw the microphone you
what's on your mind this week? What do you want
to what do you want us to wrestle with you about?

Speaker 2 (35:05):
I mean, we got to talk about the symposium that
Steve and I did this week and Civitas, which I
thought was really interesting. Oh come on, I mean you
went on at great length. You only mentioned the Clean
Air Act three times in your.

Speaker 4 (35:18):
Piece, which is a real record for you. Come on,
I mean this.

Speaker 3 (35:22):
Is there was much longer than mine.

Speaker 2 (35:26):
Yeah, but it didn't mention the Clean Air Act. Every
time you mentioned it, you lose one hundred birds on
your limit.

Speaker 4 (35:32):
I mean, come on.

Speaker 2 (35:33):
So here's the It was a fun It was a
fun exercise that you know. Civitas asked us to do
a uh do a symposium on was something like virtue
and the American presidency I think was the initial topic,
and so, uh, you know.

Speaker 4 (35:49):
Steve wrote his usual.

Speaker 2 (35:51):
You know, I thought, well, first there's Steve Hayward, and
then there's Gary Schmid and Joe Bassett, also Straussians, and
then you've all evn who I think, I don't know
if he's strictly a Straussian, but he's Straussian adjacent, I
would say. And so I thought, yeah, no, I mean
I think he got all these political theorists, oh sorry,
political philosophers, and so I expected, I expected all of

(36:15):
you to say, uh, you know, the Republican virtue must
be in the person who's the president. And that's what
the founders would have thought, which I think is actually true.
The founders expected that the first president would be the
most virtuous amongst them, among them, which was who was
George Washington. So I thought I would have fun and
I wrote a I tried to find a contrary example.

(36:36):
So I thought of who was a very successful president,
who's not a very virtuous person. The fact was, you
might have had anti virtues of those days, and that
was Andrew Jackson. I think about Andrew Jackson before he
became a president, had shot people in duels, had killed
Indians in the variety of Indian wars, had saved the country,

(36:58):
you know, the Battle of New Orleans in the War
of eighteen twelve. But then took his army and decided
to invade Florida against the orders of president, against the
orders of the president at the time. And then when
he was criticized, I think he wrote President Monroe something
along the lines of do you want me.

Speaker 4 (37:15):
To give it back?

Speaker 2 (37:16):
So he just took Florida because he thought it ought
to be part of the United States, disobeying the chain
of command, and was, you know, if you read the
accounts of him, temperamental, right, vertuperative, you know, combative, ill tempered,
But I thought was a great president. One example of this,

(37:36):
and the difference between I think the virtue of George
Washington compared to the rough and tumble of Andrew Jackson
was their responses to rebellion so in Washington's time, you
have the Whiskey Rebellion. Washington leads troops. He's the first
and only president to ever lead troops in the field
as commander in chief. He gets on a big white

(37:57):
horse and leads the column of troops up.

Speaker 4 (38:01):
To western Pennsylvania on.

Speaker 2 (38:03):
The expectation that they would all disperse if they just
saw him, and they did. And then he dropped the
prosecutions of anyone involved and released everyone from prison who'd
been arrested. Andrew Jackson went faced with a nullification crisis
from South Carolina, was about to raise an army of
ten thousand volunteers, which he also was going to go

(38:26):
into South Carolina with the troops, and he was heard
to have said that he was going to personally hang
the governor of South Carolina from the tallest tree he
could find in Charleston. Very different attitude, George Washington, but
right he put that. You know, the nullification crisis never
came down to it. The South Carolina gave way in

(38:48):
the end. And I think I think Jackson transformed the
presidency from this kind of you know, you know, classic
Republican virtue to break the tribune of the people the
you know, the the pub essitary president who claimed that
he was the representative of the people and was going
to fight the Supreme Court and fight Congress and sometimes

(39:08):
would fight dirty in order to protect the people. You know,
if there's any president who I'm sure Trump models himself after,
it would be Andrew Jackson. That was such a much
better story than whatever Steve wrote about. I already forget
what Steve Essay said. Steve, you you defender, Steve, what
you tell them what you're Steve, you tell them plagiarized?

Speaker 3 (39:28):
No, no, I quoted people, But I know that drive.

Speaker 1 (39:33):
The title what like a poor cover banding teaming.

Speaker 3 (39:39):
Yeah, oh no, that was the That was not my headline.
That was the headline that Richard picked for the site.
I forget what I I forget what my original headline was.

Speaker 1 (39:49):
No.

Speaker 3 (39:50):
I wrote for the more abstract treatment of the ambiguity
of executive power as Harvey Mansfield understood it in Taming
the Prince, which I still think is the best book
on the long arch of political philosophy as it bears
on the exercise of executive power. That book explains why
and how you should understand the actions of Jackson. I
did talk about how statesmanship used to be. Statesmen and

(40:11):
statesmanship were words you used to hear historians, journalists, and
political scientists use until about fifty years ago, when suddenly
academics turned on the phrase because it's an egalitarian, it's sexist,
you know, states men really stupid things like that, And
so now you never see the word used anymore, and

(40:32):
it's thought to be you know, subjective, unscientific, all the rest.
So I pushed back on all that, and although I
will say, if we had a more robust understanding of
the latitude of executive power, we wouldn't need to clean
Air Act. Which, by the way, if listeners you don't
realize it does not appear in the article at all.
John just sees it in between the lines because he's
learning esoteric reading.

Speaker 2 (40:57):
John, Right, you know we have to he's teaching me
what to be afraid of.

Speaker 3 (41:02):
Yeah, yeah, there you go. Right. Anyway, it's you know,
I'm trying to revive the term and the category it
connects to prudence, which I know you don't understand John either.
You think that was just cost benefit analysis or something ridiculous. Yes,
but no, that's completely wrong. But I will say this
about one point about Jackson, and this was the point

(41:23):
of view all Evind's essay in the same package. And
I guess Gary, Gary and Joe's article two is ultimately
we judge the constitutional executive, that is, the American President,
by how faithfully they understand and defend the Constitution. And
so when you say, you know Jackson contested with the court,
or how did you put it stronger than that? But

(41:46):
the point is is that he didn't defy the courts.
But what he said was, well, the most famous one
is a veto message for the National Bank, and he said,
I don't care if the Supreme Court says the National
Bank is constitutional. I don't think it is. And my
constant titutional power is I get the veto legislation from
Congress extending the National Bank, and I'm going to do
that because guess what, Presidents get to interpret the Constitution too.

(42:09):
With this became known as right, the theory of a
coordinate review, which Lincoln grabbed hold of. Right. I mean, Lincoln,
a very different type of person than Jackson in a
lot of ways, had a lot of regard for Jackson
on exactly this point. Forget his colorful personal life, just
as most of us overlook a certain aspect of Trump's

(42:29):
carryings on over the decades, and noticed that he was
a defender of the Constitution in ways that I think
are quite important and useful and lasting.

Speaker 2 (42:39):
There seeing my article is so much more interesting than yours,
just a history lesson Mine was philosophy, Right.

Speaker 3 (42:50):
Lucretia, you want to thump either one of us or
you just want to be weekend? Okay, All right, well,
then let's just go another quick break. I mean we'll
have I'll have links to these articles in the show notes,
and let's just take a quick break and then we'll
come back, and I think we we'll see a theme
actually with all three of these topics today when we
come back right after these messages. All right, now, it's

(43:17):
my turn to bring up something that caught my eye
this week, and it's a Law Review article and some
of their time, john we got to talk to you
about what's wrong with Law Review article style, and both
Lucretian and I think it's nuts the way the footnotes
go on forever and all the rest of that. But
never mind, interesting law review article from a young guy
that Lucretian I know, and I think Johnny might have
met named a Dion Kathawa. He's a graduate of University

(43:41):
of Notre Dame Law School, where he studied with Amy
Cony Barrett when she was on the faculty there. He's
clerked at the Michigan Supreme Court and for some federal
judges and has this article out called we the People
are the last word on the meaning of our Constitution
and he makes a pretty bold argument that I'm not
sure I'm entirely down with. And the way I'll summarize

(44:02):
it as this. Essentially, what it says is Congress ought
to have the power to override Supreme Court decisions they
think is wrong, because Congress is the best vehicle in
our political system to express the closest to the people.
And his whole point is is that, I mean, the
way I put it in class to students is the

(44:23):
Constitution does not begin we the lawyers or we the judges.
It's we the people. And Lucretia likes to draw our
attention to that passage in was it Federals fifty one
or fifty five? It says ad a dependence on the
people is the primary safeguard of Republican government. Is that
how you go ahead?

Speaker 1 (44:42):
No context on that quote is a little bit important.
Then the context is it's the whole discussion of the
checks and balances on the separation of powers that are
actually themselves. When it comes to the powers that are
given into the three branches of government in the Constitution,

(45:03):
the anti federalists are quite upset about the fact that
they're not clearly defined according to the branch's powers, according
to the nature of the powers that they that branch
is supposed to represent. So why are legislative powers, for instance,
given to the president. You don't have a real separation
of powers. So that's what Madison is taking up, and
he says, going through all of this, and you know,

(45:27):
talking about how it is that each of these Czechs
can actually help to prevent tyranny, tyranny and government. And
the biggest concern, of course in Federalists forty seven through
fifty one is legislative supremacy or legislative tyranny. And so
most of the checks and balances that the Constitution brings

(45:47):
to bear are brought against the legislative branch. You know,
things like a by camera legislature and the presidential veto,
and you could go on. When Madison makes that ourment.
He says, a dependence on the people is, no doubt
the primary control on government. But experience has taught mankind

(46:10):
the necessity of auxiliary precautions. So a dependence on the people,
not a dependence on the people's representatives. That's where I
think our good friend Dionne is wrong. All of his
justifications and rationale leading up to it are absolutely okay.
My argument, just so you know, Steve I said, I I, I,

(46:31):
you know, articulate it as briefly as I can. My
argument is, and John's going to go nuts over this,
that the Supreme Court should in fact protect our rights.
It is, according to Lisa, federalist papers up to Congress
to define our rights. But you know, Marshall's argument about

(46:52):
the judiciary is, you know, that's our job basically is
to say what the constitution means. But he also says,
don't ever think that because we're deciding in favor of
the constitutions because we're superior. It's because the Constitution is superior. Anyway,
back to the point is, over.

Speaker 4 (47:12):
The years, I have no dispute with anything.

Speaker 2 (47:14):
I know.

Speaker 1 (47:15):
This is what I think you're going to disagree with John.
Just so you know, quick, and I'll be quick. I'm sorry.
I believe that over the years, the American people and
even the two branches of Congress have become much too
deferential to the Supreme Court to be the final arbiter,

(47:36):
to the point where the people themselves have given up
what Madison kind of said was their sacred responsibility, which
was ultimately the Supreme Court is the same kind of
failed human being, the non angel that Madison speaks of,
and is easily as as capable of misinterpreting the Constitution

(48:00):
either of the other two branches are. And it's up
to the people exercising their sovereign power to keep our
government from becoming a tyranny. Now, we can't expect that
to happen every single time government does something wrong. And
it's nice to have, as Madison put those auxiliary precautions.
But I think that this is the point, John, I

(48:20):
think you'll disagree with. Is the Supreme Court doing that
all of these years, making decisions about whether or not
our COVID policies were too we're taking away religious freedom
rights or this. You know, Just as we could go
on and on with examples, the American people have stopped
believing it's their job, and they defer much too easily

(48:43):
to the Supreme Court to determine what their rights are.

Speaker 2 (48:46):
That's my disagree with that. We've definitely period judicial supremacy.
And I'm a departmentalist and I think that's you know,
the coordinate branch construction is what Steve called it. Well,
let me give jackson view and the link of view
I think is correct. But that's a view of the
people too. They don't trust themselves interpret the Constitution and
they'd rather have the Supreme Court do it, and they

(49:06):
don't challenge it enough. That's not the Court's fault, that's
the American people's fault.

Speaker 3 (49:10):
Okay, So let me develop this argument. Yeah, you jump
the gun a little bit on. I want to get
a little bit more of the architecture's argument fully out,
and I may move some of this around because that
was a well okay. His argument is built on the
sovereignty of the people and the consent of the government,
and he says that, you know, Congress is the closest
to the people. He does, by the way, he does

(49:34):
give a footnote giving a shout out to our natural
law discussion on the political question. Substack so that was nice.
So we show up in this article.

Speaker 2 (49:41):
Also also bizarre that anyone would cite anything on our
substack in a Larview article.

Speaker 3 (49:48):
Oh come on, you guys, Well I should have directed
your attention to that, since I think you guys just
skimmed this. There is one part I think, okay, well
you okay, one part. One part of the article I
think is odds He says, Hey, the Canadians do something
like this, and I'm never a fan of Canadian constitutionalism.
I'll just put that out there for skied. Okay, okay.

(50:11):
But then you know he does in good sort of
Tomistic fashion, because Dion's a devout Catholic. He does take
up objections the way Aquinas would. And one of them,
the most important one, I think, is uh well twofold
one is is that the reason we have these countermajoritarian
features like judicial review is precisely to be a bulwark

(50:31):
against transient majorities, you know, the passions of the of
the mob. That's always been the downfall of pure democracies. Right.
And his counter argument back is one that I thought
is pretty bold. I'll just quote him here. He says
that the political branches are more subject to popular pressure. Is, however,
a point in favor of my basic argument. Boy, well

(50:55):
he's you know, good for him, he's not backing down
on all this. But I don't know, I just make
you don't.

Speaker 2 (51:00):
Really like, why bother have a written constitution? If he's right,
why not just have a British constitution?

Speaker 3 (51:08):
Yeah? Right, that can be amended by the House of Commons.

Speaker 2 (51:11):
Right, Yeah, And you just have to be clear what
you're doing is legislation or constitution making. But right, the
whole point of writing it down is to prevent majorities
or the or even put aside trans majority. Sometimes you
just don't want the people to be able to do
something unless you're really really sure a super majority that
people want to what's wrong with that?

Speaker 1 (51:31):
Yeah, well, it's not so much we would have to
stop that. It's not that I disagree, But that's not
the whole story, John, It's not so much a supermajority,
even a super majority, can act unconstitutionally in the sense
that the only genuine constitutional appropriate Listen, I can explain

(51:53):
the only legitimate activity of a majority or a supermajority
is when they act in the public interest, and when
they do so in a way that does not deprive
any size minority of their fundamental rights. That's what makes
legitimate government, and majority rule is an imperfect way of

(52:16):
the sovereign people governing themselves. The entire Constitution, as you
put it, I'll put it a little differently. It's there
to make sure that the majority doesn't run away with
the rights of other citizens or the permanent and aggregate
interests of the community.

Speaker 2 (52:33):
Well, so you're saying there are some things that you
cannot do through the constitutional amendment process. So, for example,
suppose that in the constitutional amending process, the core the
people were to eliminate, say, juri trial, they just said,
we're not going to have dury trial rights. Very few

(52:53):
countries have them anymore. We're going to just have We're
just going to do it the way everybody else in
the world does it with a judge jury trial. Right,
Are you saying that the people are unconstant would be
violating the Constitution by changing the Constitution through two thirds
what three quarters?

Speaker 4 (53:09):
I don't I don't think.

Speaker 1 (53:10):
I'm not saying that about jury trials. But what I
will say is that the people would be violating fundamental
natural law by repealing the Thirteenth amendment. We've had this
discussion before.

Speaker 2 (53:25):
What about So you would say there are certain things
that are in the constitution which cannot be changed, I say.

Speaker 4 (53:35):
The amendment process. Yeah, just said it would be unconstitutional.

Speaker 1 (53:39):
I think of your favorite person, John's Thomas Jefferson in
his What Is It Is farewell is inaugural address where
he says the majority rule to be rightful, must be
reasonable and that the minority have how executive I forget
exactly how this the minority rights are respected. That's the
definition of legitimate government. Now, of course, everything, every single

(54:04):
law that's passed by some kind of majoritarian process is
going to disadvantage a minority. It's always going to do that.
You know that. That's the nature of laws is that
they discriminate, they create classes. What our constitution requires, and
what I think legitimate government requires or natural law requires,

(54:27):
is that those that those actions. Sorry, I just got
a notification that the border patrols of my neighborhood looking
for some until lock my door. Sorry, that's so sorry, Steve.
That just completely threw me.

Speaker 4 (54:47):
Time law enforcement has visited Lucretia.

Speaker 3 (54:50):
Actually so so while Lucretia is finding out if ice
is surrounding her house because it's a sanctuary, because she's
been secretly I think, a sanctuary for migrants.

Speaker 2 (55:01):
Right again, they're just taking up their old positions, as
they say, the.

Speaker 3 (55:06):
Military, right right. Well, look, let me bring up an
example that I've got a surprise, dion or I would
challenge deon and by the way, I have told him
that we will try to have him on to make
his case under butt us at some point down the
road when we can schedule a time, which has been
hard lately. You remember this from more than thirty years ago, now,

(55:26):
I think when the Supreme Court struck down statutes banning
flag burning as a violation of the First Amendment, Congress
immediately passed a new law in the way you would
think Diana is suggesting, which is right. Congress is going
to say, no, Court, we're sorry, we think you're wrong here,
and that law was immediately challenged and the court said, no,
we're not impressed. That's against the First Amendment. Also right now,

(55:50):
of course, as I have said before, nobody thought nobody
had the wit to use the Clean Air Actian banned
flag burning against pollution. But nonetheless, but I mean, you know,
isn't that First of all, do you think that? I mean,
I mean, there's two questions here, and nic could go
on a long time. One is, isn't that an exercise
of you know, what Dean is saying, is the Court

(56:11):
saying no, we are Congress saying we think the Supreme
Court's wrong and we're going to override them. By the way,
I think there was a lopsided vote on the flag
burning I think it passed the House and Senate by
big majorities.

Speaker 2 (56:22):
Oh yeah, I actually have to confess I worked on
it when I worked in Congress.

Speaker 3 (56:26):
Oh did you okay? Okay? And then the second one
is what what do we think of that? I mean,
I think, without reopening the whole question of First Amendment jurisprudence,
I think flag burning is expression and not speech, and
is easily within the reach of the police power of government.
But that's been a losing argument even with Justice Scalia.

Speaker 2 (56:45):
Right, especially Justice Scilly, he gave the fifth he provided
the fifth vote to say uphold flag burning right as
protected by the First I know, I think what the
better case, a more meaningful case, because this whole flag.

Speaker 4 (56:59):
Burning thing is very symbolic.

Speaker 2 (57:00):
Obviously, it's a religious freedom restoration actor where right the court,
the Congress has tried to overrule, unsuccessfully, the court's decision
that right religious minorities don't have a right to seek
an exception from generally applicable laws like the drug laws,
for example, in their religious practices. So I look, there's

(57:21):
I think there's a number of problems with this argument.
And this is not a new argument, mind you. I mean,
this is an argument that the progressives came up with
that Teddy Roosevelt, yeah, trust Congress to yeah, yeah, they
wanted Congress or referendum to over you know, I think
they wanted sixty percent or fifty five percent, But some
proposals were just a simple majority should be able to

(57:43):
overrule Supreme Court decisions.

Speaker 4 (57:45):
So this is not a new idea.

Speaker 2 (57:47):
In fact, there's some very radical left wingers who like
this idea, like Bruce Ackerman is someone who also you know,
goes around making these arguments. But look, first, even if
you thought this was true, why do you think Congress
is a more authoritative right vehicle for the expression of
the views of the people.

Speaker 4 (58:06):
Why wouldn't it be the president? Right?

Speaker 2 (58:09):
What I mean, why can't the president overrule Supreme Court
opinions instead of Congress if he were, if this argument
were correct. I mean, there's a lot of articles in
political science about how how Congress is dysfunctional, how it
often reverses Lucretia's worry. It's not that the majority imposes
costs on the minority. Congress often allows a minority of

(58:31):
rent seekers to oppress the majority. Right, So why would
we ever trust Congress to be the more authoritative voice
of the people. And I think that's what departmentalism really is,
is that each of the branches is competing always to
try to be closer to the view of the people
and to protect the Constitution. I don't really see why
Congress is the chosen institution. It may actually make more

(58:54):
errors than the other two branches.

Speaker 1 (58:56):
The founders thought too, yes, founder side. And let me
just say this, Steve. When I try to explain this
to students in the most basic ways to discussing separation
of powers and checks and balances, one of the examples
that I like to use think about when a politician,
when a member of Congress gets in front of the

(59:18):
cameras and spouts off something and the almost inevitably invariably
there will be a phrase the American people demand. The
American people are not in favor the American people want.
You know, they don't speak for the damn American people.
But Madison warns us that they're going to pretend like

(59:39):
they do at every opportunity. And boy, was Madison ever
write about that. That's a I'm with John on this.
I like the fact that there's this continuous struggle, this
continuous you know, attempt at equilibrium between the three branches.
And I don't think that the Supreme Court is the
final authority in the Cooper versus a In style, for sure,

(01:00:02):
But I also don't think that Congresses. And I think
the Founding fathers were most worried about Congress in that
respect because of its closeness to the people.

Speaker 2 (01:00:11):
Right, well, this guy, you know, this this author, if
he's opposed by both me and THEU Cretia just.

Speaker 4 (01:00:20):
Right now, I'm.

Speaker 3 (01:00:22):
Gonna call him Neon Dion, after the other famous person
named Dion. Look good for him for putting out a
provocative argument. We will try and have him on at
some point to rough him up and talk. He's a
great guy. Uh yeah, and and uh yeah, no, he's great.
He's going places he's but and good for him for

(01:00:42):
putting out a bold argument like this. But with that,
we'll take our last quick break and we'll close out
the show with some new materials, so you won't want
to go away, all right, Lucretia, you you managed to
get enough bandwidth to summon up a few Babylon bees
for us. Give us just.

Speaker 1 (01:00:59):
A few, but there some of them are quite appropriate.
Uh Man, really excited for government to release all the
government documentation of all the government's crimes.

Speaker 3 (01:01:11):
Yeah, that's pretty good.

Speaker 1 (01:01:13):
Okay, this one's my favorite. I do exempt myself from this.
Very hypocritical of me, but uber to begin offering writers
choice a woman driver or good driver. Yeah, disheveled Colbert

(01:01:34):
seen holding up cardboard sign. We'll yell about Trump for cash. Yeah, okay,
last two, and this is a there's so many more.
Obama argues he can't be charged with treason since he
wasn't born in America. Yeah, I know, give me one more.

(01:01:55):
Obama awarded Nobel Peace Prize for exemplary work planning Russian
collusion hoax.

Speaker 3 (01:02:03):
They finally found something adeed that he did, right, Yeah, yes, right, okay, okay, John.

Speaker 4 (01:02:11):
Well, I'm still I'm still in my.

Speaker 2 (01:02:14):
Reduced version of my sign off because, as you guys said,
we need to think of another.

Speaker 4 (01:02:19):
One to add for mine.

Speaker 2 (01:02:20):
But yeah, mine is just always drink your whiskey, Meat
and Steve.

Speaker 3 (01:02:25):
I have got new material. I asked chat GBT to
provide us some lyrics if Lewis Carroll was a listener
of this podcast, And here are two stanzas of a
brilliant long poem, and then go as follows the jabberwonks
of policy. Flee when whiskey and wit poor easily. No
safe space, sillies, no shallow cheer, just bracing thought and

(01:02:49):
twelve year gear. So till your glass the logic bound
kin let the conversation splash within where speech is free
and nonsense howers. It's the three whiskey happy Hour.

Speaker 4 (01:03:04):
I think that's pretty good.

Speaker 2 (01:03:06):
I thought that was really much better than usual.

Speaker 5 (01:03:08):
Bye bye, everybody, We'll see you all next week.

Speaker 4 (01:04:02):
Ricochet joined the conversation.

Speaker 3 (01:04:07):
M HM