- Hey everybody, welcome to the McCregg podcast. I'm Jerry DH Sexton. I'm here at Nick Houseman, Nick Kaidow, but. - I'm doing okay, but it's a not an easy day for democracy, I'll tell you that. - Yes, some people call it a shit day. You know, we got on here after the debate on Thursday. I think we made a lot of news with the people who watched and listened to us and we watched all hell break loose afterwards. We were gonna come on here and talk about that, which we still will because it's a major, major story, a developing story that keeps going on, what has happened with Joe Biden, the Democratic Party. But Nick, this morning the Supreme Court threw us all a curve ball. We're gonna have later on Dr. Adam Winkler, a constitutional law professor from UCLA to talk with us about this ruling, but six to three in the case of Trump V, the United States. The Supreme Court has ruled that the president of the United States of America has immunity from prosecution when performing quote unquote official actions, it still determines, still to be determined whether or not January 6th than an attempted coup was an official action or unofficial action, it sure seems like Chief Justice John Roberts has his thoughts, but I have to imagine this is a probably a good day wherever in the hell Richard Millhouse Nixon is. And for people who might remember, this was once a controversial quote. - Well, when the president does it, that means that it is not illegal by definition, exactly. - Cool, Nick, do you remember when that was like one of the most absurd things ever? And it only added to Richard Nixon's disgrace and everybody laughed about that and pretended like it was, you know, really, really a terrible thing. - Doesn't, that doesn't sound familiar at all, Jerry. - Oh, that doesn't, oh yeah, yeah. But I don't remember that, I know. - Well, no, I mean, as soon as they restarting, we having his image and we actually had people in back in the government who were angry about what happened to him. We knew that this was a collision course towards this. And by the way, I think this is all related to the fact that Gerald Ford pardoned him because if he had, he was going to be prosecuted and he was going to be found guilty, Nixon was back then. And had that happened, we would have had precedent for a lot of these things and what is legal and what is the official actions of the president already kind of outlined. We wouldn't have had to have done what the Supreme Court did today. That said, do we have any confidence that the Supreme Court would actually even pay attention to starry decisive in what the president was in the past? - Well, I mean, they don't really give a shit much in the way. You know, one of the things I've said on the show, Nick, is that the president having immunity from prosecution was a gentleman's agreement for a very long time. There was always the idea that whatever the president did, the president needed to do and the halls of power would all sort of circle around them and protect them and that they weren't going to be prosecuted. The problem with this ruling, putting this in black and white and creating it with precedent is that now this gives the green light not to go ahead and break laws, which presidents do all the time. You and I talk about this, but to actually give them the green light, to do whatever it is that they want without even the concern of prosecution. This is a major, major development, really, really troubling part of what you and I have talked about both with what the stolen Supreme Court has done, but also with the Republican Party and the authoritarian movement is doing. This, to be honest with you, this is something that is a milestone on the road that we have been covering and we've been predicting and warning about, and this is a really, really, really sad troubling day. - I think, I'm interested to hear what Adam says a little bit, but I also feel like what would have been the decision handed down from them that would have been acceptable to democracy because that's an interesting thing because obviously, we understood, and there already had been the notion that the president is protected during his official duties from certain things. Certainly, every president I can think of right now has committed crimes in office in the guise of national security and whatnot, and no one's been prosecuted, no one's even wanted to prosecute. - Well, civil lawsuits has been on the books, that the president is immune from that, but yeah, the crimes the president's commit, it's been a wink, wink, nudge, nudge, see you later for a drink, the club type of thing. - Right, and so as a result, now that they're trying to explicitly make it like this, what they really have done is, I guess the answer to my question earlier would have been, they probably should have been able to deal with what is and what is not an official act of the president, and instead they kicked that can down the road and said you guys gotta figure it out in the circuit courts first, and then can bring it back to us. But imagine what that means, in what I'm hearing is they get to be the final arbiters of what is official and what is unofficial, so basically it's not the president that they're making it to a king, it's the Supreme Court, 'cause now any time this comes up, they are the ones who are gonna finally put their foot on the scale and say, okay, Biden, yeah, that was an unofficial act, you're gonna go to jail for that. Trump, no, that seems pretty fair, like you needed to call Brad Raffensberger and make sure you can get a couple of thousand votes here, and that's pretty much an official act, 'cause you have to hold the constitution in the United States. That's what's so crazy about all this. - You know, when we were covering this, when it first came to being argued for the Supreme Court, and then it got delayed and delayed and delayed, what we talked about, and I think correctly and what we saw today, and this is incredible, it's amazing how much money and time and energy is spent with the nuance of rhetoric and the words that are chosen. We said, how is it that they will set up a situation where someone like a Donald Trump or a Republican or a business-friendly president can enjoy the expansive powers with immunity, but also how can you control it so that your rivals or a quote-unquote radical president wouldn't be able to enjoy those powers. This entire thing, the official duties, unofficial duties, that you nailed it. It is going to be a subjective moving target that can be used however you possibly want it. And what happened here, when I read it, I gasped. Do you know what I mean? I saw it and I was like, oh, there it is. We got there, we figured it out, undoubtedly one meeting and one research thing after another, figured out where it was going to be and what you just said is exactly right. The Supreme Court, six to three, and by the way, fuck John Roberts, and fuck everybody who said that John Roberts was some sort of moderate institutionalist who, oh, he might end up being the new swing vote, right? Like, they figured out how to set this thing up exactly the way that they wanted to do it. And you know what, at this point, you can't even like be shocked. That's what they're good at. That's what they do, that's how they do it, and they did it again. Yeah, really, really awful, and also brilliant in its own sort of way. - Right, I mean, it's brilliant in a very short term of sense because at some point there will not be, well, here's the thing, there won't be democratic candidates in the White House, we'll be Democrats in the White House. - Well, yeah, I mean, you have to, like what happens if an election gets challenged and ends up at the Supreme Court at this point. Not that we've ever seen that before, not that that happened 24 years ago or anything. - Right, that too, and so, but as a result, because of the ages of these justices, they don't have to worry about that for a little while, or for a nice long while. And it doesn't even matter at this point 'cause they never should have had this advantage, right? Even though when you had a Democrat in the White House and they were nominating, you know, other, their candidates to be on the Supreme Court, that was completely nullified, up bullshit, things that McConnell pulled. So you can imagine that will continue to go on in the future. Whenever a Democrat has a chance to nominate a Supreme Court nominee and to try and change his court, you know, back to a balance, they'll just hold it up and they won't have a vote on it in the continue. So like in theory, it'll be 9-0 of ultra right-wing conservatives on the court at some point. This is what, you know, people seem to want. It really, you know, it's really staggering how many people either don't realize it or simply want authoritarianism. - Well, on that note, there are three points I wanna hit. First things first, I don't know if you noticed Nick, but when this ruling got let out, and this is actually gonna be one of the themes of the show 'cause we have another big topic that we have to talk about as well, you'll notice that there were a lot of people who were shocked, who were pissed off and they were scared. Then there were other people and what did they say immediately? Joe Biden should use these new powers to his advantage. Biden could do this, Biden could do that, Biden could do that. That is embracing illiberal ideas. It's authoritarian creep. We've seen that and it is growing and it's expanding. We certainly saw it over the weekend after the debate and the crisis that happened after that. We'll talk more in just a few minutes about that. The next thing I wanna say, Nick, is it does not have to be this way. One of the things that we're talking about here is we're talking about this trajectory that we are on. And by the way, the Democrats are not serious about this. They haven't said shit since this has happened. AOC has come out and said she's gonna file impeachment papers against the Supreme Court. That's not gonna get out of the house, but that's neither here nor there. Meanwhile, Joe Biden, I don't know where he's at right now. I don't have a clue, he hasn't said anything. I almost think it'd be good if the president of the United States would come out with a statement when he was just giving God emperor powers. Also on top of that, like the Biden campaign, what did they do? The first thing they did is they got on a campaign call and said, "Oh, Joe Biden respects the integrity of the institution "of the Supreme Court. "He's not interested in reforming it. "He's not going to do anything about it." It doesn't have to be like that. And that's why I say this. And I say this with a heavy heart. We laugh on this show, we joke because we're friends, because sometimes this thing is so enormous and heavy that we have to laugh about our ill show cry. I say this with a heavy heart and I'm honest about this. We have reached the point where a healthy country would react to something like this, not by crying about it on social media, not gnashing at our teeth and pulling our hair. We should be in the streets. This is where labor unions should be getting together, affiliation should be getting together. We should be talking about things like general strikes. We should be talking about collective action. That's what happens in countries where there's at least a spark of this. And Nick, what happened when BB Netanyahu went after the courts in Israel? - They every Saturday, they be out in the 10s and 20s and hundreds of thousands of people protesting. - They were out. And this is what happens, and by the way, that's not to say that Israel is necessarily healthy or we didn't even see that stuff get overturned. What you need to do at this point is recognize that the people you have elected so far are part of a system that has been corrupted and has been moving in this direction. They're not going to do anything about the Supreme Court. They're just not. And until popular grassroots action takes place and that's what has worked in the past, that's where we are, Nick. And I don't like saying that. I know that it has inherent dangers. I know that that, maybe it sounds alarmist to people, but I don't know what else to say at this point. Everything we've told people was coming down, coming down the pipeline, has come down the pipeline. And all that's left is to sort of dot the eyes and cross the T's at this point. That's where we're going. - Well, and we know that the Supreme Court just is hear the criticism and they hear the people. - Yeah. - But there's a certain temperament that you're supposed to have when you get to that level of being a judge, which is why they made a really big deal about it with Kavanaugh when he had his confirmation hearing and he was, I don't know, what was it that's just you're using for him and like defiant and like lashing out and all the emotional? - Yeah, very cool and emotional. - Yeah, which Alito has as well where they don't, they're not going to hear it like capital H, they're going to dig in and become worse if they recognize that people want to tell them not, they can't do these things. It's not ethical and it's not a good job. Yeah, and he's responding in kind that way with a very snarky letter the last time about why he wouldn't recuse, which is what is also ridiculous. He had two justices who shouldn't have even been involved in this decision, much less overturning it six to three. Like at least it could have been maybe five four and you felt like, okay, but there's your Roberts vote. So this is really, really concerning. And again, I've often asked this question about whether or not the intersecting lines of capitalism and democracy will always lead us to this point in its state of affairs. And I wonder if it was inevitable, there wasn't much you can do to stop it because the money and this graft and this corruption is just too powerful. - Yeah, and you're exactly right on that. And that is one thing that we need to make sure that we talk about because we always dedicate ourselves to going more in depth with context of what's going on. This isn't just about giving Donald Trump authoritarian powers. This is about the fact that capitalism has gotten to the point where America needs a dose of authoritarianism in order for people to gain more profit and more power and in order like to make the next turn into basically what we've seen in quote unquote second and third world countries and neoliberal globalism. That is now coming to America. We need to have a president who's able to basically crack down and do whatever's necessary for the bottom line and the oligarchy. The next thing about it, I want to say just very quickly, going out in the streets is not about just expressing your anger. It's about forcing the media and the political system to recognize that something is wrong that changes the conversation and it forces a larger reckoning with what's happening. You have to trouble the status quo until the status quo is unstable enough that it will start to change and reckon with itself. If Joe Biden is not interested in traveling the Supreme Court, which again, I don't think he should be the nominee for the Democratic Party right now, we'll get to that in a few. But on top of that, if he's not going to make that an issue, if that's not in his heart, and that's not in his political sort of bullet points of what he wants to carry out, it needs to be brought up and it needs to be prosecuted in public opinion and in the streets. And I don't say that lightly whatsoever. And by the way, Nick, we haven't even talked about the fact that the Supreme Court got rid of Chevron, which means that the administrative state, whatever few tools it had remaining, more or less were yanked out. Like those things were destroyed. The administrative state was completely de-weaponized. And Nick, do you think that that de-weaponized administrative state, do you think if a Republican or a right-wing authoritarian gets empowered? Do you think that those departments aren't going to have power to do what they want to do? - They will not have power to do what they want to do. Is that what you're asking me? - They will have the power to do what they want to do. It just still happens. It's making sure that it is case by case and whatever the agenda is. If it gets in front of the Supreme Court and you want to go after a business or a group or a old regulations, no. If you want to go in and you want to loosen them and you want to prioritize these sort of things that the right-wing agenda wants, that will be more than fine. It is one thing after another and it has passed the point of an overturn. - For sure. I mean, even with the COVID thing, it's also related to CDC would recommend or say we'd have to have masks. And the way they framed the vaccination mandates, which by the way, we're never mandates. They were simply either get vaccinated if you're working in a large company or be tested often. That was the two choices. It was never like you had to get a vaccine, but you can tell that that is a real sticking point, which is why they want to remove the power from a lot of these agencies who, there are probably several instances of corruption throughout the years and it was a problem, but there is also this notion that they are trying to help people, they are trying to stop people from being poisoned and exploited. And that's why they were founded. And so if you just want to tear that down and again, without replacing that with any other kind of protections, then we're just going to start dying left and right. So it's really fascinating how to run a business and it costs a little extra money because we need to protect the environment while you're doing it. It's such a, I guess here's the thing. If you don't believe that the environment is being affected by us, then of course, there's another example of like right corruption we must get rid of and stop this from happening. So it's a really problematic thing when you have guys like this in the Supreme Court of our places and that's what McConnell understood, right? To circumvent any kind of lawmaking that they needed to do. And it's, you know, the Supreme Court, they're the ones who now have more power. It's not an E3, but it branches the government anymore. - Yeah, and Mitch McConnell, by the way, it was just a stooge for the federalist society and the donors that they represented and that they organized for. That was it. It is, it. - Will you say that everyone's quiet? You don't hear about it from Schumer. Have you seen McConnell? Have we seen him in months? - No, he's probably on a charger somewhere. And I wanna say one last thing, and this is something I wanna pepper almost every podcast and every appearance and every interview I do from now on. People say to me, what should I do? You know, I'm talking about mass action and collective action. First things first, you need to sit down and you need to figure out what's important to you, what you're willing to do, how you're willing to show up, and then you need to talk to other people. Your coworkers, your friends, your family members, if you're part of an affiliation, you need to ask your leaders, what are you going to do about this? Do you support this? Are you gonna stand against this? And I'll have more about that in the near future. And now a related, unfortunately subject that is growing more and more important by the moment as the Supreme Court does what they do. What does what they do? You might have watched our live stream on Thursday following the disastrous presidential debate between Joe Biden and Donald Trump. On that, Nick and I both expressed grave, grave concerns about Biden's fitness to continue on the campaign and even arguably as president of the United States of America. The fallout after that has been swift and weird and disturbing. Just to set the table, Nick, before we get in all the relevant information, immediately every Democratic strategist that I've ever known and basically who has access to a telephone and/or laptop was on meeting after meeting all night, deciding what they were going to do. If anything, the consensus became that Joe Biden was the nominee unless Joe Biden stepped out. We also saw a strange and almost unexpected pushback from a lot of prominent Democratic influencers and personalities, including the Pod Save America team, which did not really beat around the bush. They talked about how frustrated they were by the thing, how frightened they were by the thing. Nick, we also then saw a cavalcade of sort of liberal luminaries. Thomas Friedman called for Joe Biden to drop out. Nicholas Kristoff called for Joe Biden to drop out. The New York Times editorial board called for Joe Biden to drop out. Since then, Biden has met with his family and he camped David. All reports are that they decided not only are they remaining in the race, but that they are ready to go and win the thing. They've got strategies, all kinds of things. This has been a really, really ugly incident for a variety of reasons. How are you feeling a few days removed from this thing? And especially as we're seeing the Supreme Court continue their attack on democracy? - Well, in response to the New York Times op-ed that called for Biden to step down, I was kind of wondering, where was this call after Trump, I don't know, Lebanon's direction? I mean, I guess it was right at the end of his presidency. How about when he got out? - How about we call the vote of him to drop out? - How about we do that? - Yeah, like where was that kind of outrage back then when he called Ukraine to try to shake him down for a political during his opponent? Like that's, that seemed like that would be worthy of saying he should step down as well. So that's, you know, I'm taking out the grain of salt over the shoulder. Now, you know, the next day he fist pumps and he gives us a, I won't back down or when I, what's the song, I get knocked down. - We get knocked down and get back up again. - And, you know, and we got all those memes. And so suddenly I felt a lot better. It made me weird, like, why, where was that? Why didn't he have any inkling of energy like that the night before? So did that, did that make me feel any better? Like, probably not. So I don't know what to make of all this 'cause I started really having those flashes of, you remember when Diane Feinstein for the last like year of her life was propped up in this position when she should have just been with her loved ones and in resting comfortably? You know, I started to feel like, are we getting to that territory? Obviously he's more ambulatory. So it's not like he's like along that far, but like certainly, like, is this Jill Biden doing this? And she's the one who being defiant about all this because I wonder in that article we read about Camp David and that they're doing, "Hang out," it kind of makes me feel like, let me not go on curious if you felt this way. Does it feel like, you know, Biden is sort of still just sitting there kind of looking around and, you know, wide-eyed and not really having an agency in this decision? - I, okay. So first things first. I want to talk about why this has been so awful. First of all, watching the people react to it in the online sphere, our discourse is broken, broken. We all watched that debate. No one tried to say that Joe Biden did well. And by the way, any talks about like what camera angle or lighting or whatever, we watched what we watched. It didn't matter what the camera angle was. We watched the president of the United States of America not only get confused about basic facts and major, major issues that affect all of us. We watched him get completely and irrevocably lost. It wasn't about camera angles. By the way, everyone says he has a cold. Why is that supposed to make us feel better? The president of the United States of America got a cold and as a result, wasn't able to function in his capacity? How's that make anything better? Also, by the way, yeah, he showed up at a rally the next day. He had a teleprompter. I mean, Donald Trump can perform great with a teleprompter. It doesn't make him presidential. And on top of that, the problem here, Nick, is this. We don't know in this country how to have hard conversations. And why? Because capitalism and culture and all of it keeps us from having a hard conversation. Personally, I have seen many people that I have loved and respected go through the later years of their lives and they don't necessarily know when to stop. They don't know necessarily when to quit. And by the way, you know what happens a lot of the time? People are in denial. I'm in denial sometimes. You're in denial sometimes. Our listeners are in denial sometimes. It's hard to face hard facts. I'm not telling you what? You're not denial? No. I'm not in denial. I'm not denial. You're in denial. I can tell you this. I could not keep up with the DM's messages, text messages, and phone calls from Democratic strategists. Do you know who knows about this? The people who are in the party who are trying to navigate it. And do you know what else I know? I know that the major people who would be running for the nomination if it wasn't Joe Biden are running shadow polls. They've all got shadow campaigns going. Do you know who the most aggressive person has been? You would think it's Gavin Newsom and it's not. Let me guess. Well, I don't think it'd be Whitmer. It is Gretchen Whitmer. Gretchen Whitmer has been incredibly aggressive. And by the way, told Joe Biden that he could not win Michigan. Like deliver that message personally while running a bunch of these polls. So I'll tell you something. The Democratic apparatus understands it. Do you think that the POD save America boys got? And they're one of the most influential media operations, more influential than MSNBC for the record in liberal America. Do you think that they got on the air to say that maybe Joe Biden should be the candidate without talking with the big guy? Do you think that happened? No, it did not happen. And Barack Obama put out and said they supported him. He had a bad debate, all that. This wasn't a bad debate. We saw a person who is diminished, who I have concerns about him being president of the United States right now. I have a lot of concerns about his ability to be Donald Trump. And I have a lot of concerns about his ability to be president for the next four years. And people are in denial about that. And I'm sorry about that. That matters. Like, could he get through the next six months and get to the election? OK, like, yeah, probably. But after that, we're in trouble and we're going to go through this all over again, maybe in the middle of the next term if he wins. This all isn't as related to-- I think I texted you this-- he falls off his bike. And that was the last. We really saw him being spry and moving around quickly, right? Like, that's how fast it could turn. And maybe the bike falling off was an incentive of that as well, which as we all know, we have people in our families that have gone through this. You can usually pinpoint something that happens. So this is-- it's funny. I tried to-- I spent the number I said we needed to sleep on it on Thursday night and just kind of like just take a breath for a second because we were both getting pretty worked up about it. I think I had a moment where I was like, you know, OK, it maybe isn't that bad, but it definitely-- it still feels that bad. And now we've gotten the quotes that you had predicted that we're going to be coming out and a little insight into that. The bottom line, and for me, like I mentioned earlier, was what the picture has been painted right now about the Camp David hanging out session is that he's sitting on a couch kind of just looking back and forth while everyone's arguing over his head. That's how it felt, at least. So this is the thing that they need to fix if they can fix it before the election. I agree. I want to make two more points. We're going to have Dr. Winkler on here in just a minute, but I want to make this clear. First things first. I've sat with it. I think the only viable option actually is to move on to Kamala Harris. I think that's the only thing you can do. And for the record, do I understand that Kamala Harris is quite unpopular in certain circles? Absolutely I do. But I think it's insulting to bring her on the ticket and make her vice president, and then somehow or another not engage in the conversation. I think that's very telling when people do that. And for the record, if you are worried about her ability to be president, then what's that say about the fact that you supported her being on the ticket in the first place? That's problematic. The second thing here, and Nick, it is really, really difficult to talk about that, but I have talked about this, but I also think that our audience is prepared for it because we've had frank conversations. What I am seeing from supporters of Joe Biden and the Democratic Party, it almost exactly mirrors what happened with Donald Trump, which is they're denying the evidence that their eyes and their ears have seen. On top of that, they're cooking up all kinds of conspiracy theories to push this stuff away. You had Governor Tim Walts of Minnesota go on Fox News and say we have a lot to learn from MAGA and the way that they don't question Donald Trump. And I'm going to say this right now. You can't go down that road. This is the problem when we get in a moment of crisis and we start doing this stuff. We talked about authoritarian creep in the first segment with Supreme Court. When you start going down that road, you don't question leaders. You question your own senses and your own sensibilities. That's where really, really bad things start to happen. - For sure. I mean, it's not hard to be on against Trump to be in a Democratic party, whatever you want to call it and be able to recognize that Biden is a problematic candidate beyond belief. Now, if Hillary Clinton was a problematic candidate who ultimately didn't beat Trump in 2016, then this is a name saying we're in worse situation. I would imagine right now. And the polls came out, by the way, did the polls tell you anything? 'Cause it was all over the place. - The polls are all over the place. You see one poll that says that over 70% of Americans don't think Biden is fit. You see another poll that shows Trump going up by I think 10 points. You see another poll that shows it like two to three to five, they're all over the place. We can't really tell anything from polls anymore. - Right. And again, and then it's just the same kind of thing where it doesn't really matter because it's the three states and the 50,000 people and most three states. I don't even know if that's a thing anymore at this point, the way this is going. So I do feel like there is a push for people to simply say, we understand that the government is run by a whole bunch of people that can support the president if he needs it. - Oh, a lot of good people in the room? - Yeah, doesn't make me feel good at all. - Oh, where did I hear that? Oh, no, it'll be fine. There are a lot of good people in the room. - Right, or it won't be fine, but it is what it is and it has to be because of the other guy, you know, that's the problem. - That's what the Republicans say. Oh, the Democrats are so dangerous. The left is so dangerous. We have to have Trump. We don't really want Trump, but we got to do this thing. When you start bargaining like this, Nick, we saw a diminished president on Thursday. We saw somebody that I don't feel particularly comfortable handling the duties of president. I don't know if you still feel that way of our listeners feel that way. Like, you can sit here and say, "Oh my God, we've lose the election." I understand, and I understand Donald Trump is an existential threat, but we need to understand also that we have to approach this thing in a mature way. We can't just be terrified of it. We have to look at what powers and responsibilities are on the line here. - My last point, I think I would say about this would be, you know, Donald Trump is, it's gonna be a close election, right? We know that. - That's close, I would think. But anybody else in the Republican ticket running against Biden now would win in the landslide. Ted Cruz would beat Biden, right, in the way it's going now. - Nicky Haley would beat him by double digits right now. - Yeah, that's how sad this whole thing is. If this was like Romney running or whatever, like, you know, the country probably wouldn't feel as, essentially, in a crisis, because Romney at least was some version of a moderate back then. And maybe we could have been like, okay, compared to anything else, we wouldn't have known what Trump was like in the back then. But this is really, that's how bad it is that how bad Trump is, that they have a guy that could, you know, barely beat, you know, someone who is diminished. So that's where we are now. And it's a, it's a, I don't know what to make of it. - It's not great, not great. Well, listen, speaking of not great, not our guest, but this situation that we're having with the Supreme Court, we are very, very pleased now to be joined by Dr. Adam Winkler, a constitutional law professor at UCLA. Dr. Winkler, thank you so much for joining us. - Hey, thanks for having me. - Dr. Winkler, we've been looking forward to talking to you. Obviously, this is a momentous, is the right word, but it feels bad. We would love to hear your thoughts on the Supreme Court's 6-3 decision regarding the immunity case with Donald Trump. - Well, this is obviously a hugely important decision. It's a, the Supreme Court has never decided whether a former president can be criminally prosecuted for things that they've done in office. And obviously, Donald Trump is unprecedented in so many ways. And one of those is that he's the first to be prosecuted for criminal offenses after he has left office. And what the Supreme Court said today was that the president has broad immunity from criminal prosecution for things that he does while president of the United States. The court drew a distinction between what the court called official acts and unofficial acts, official acts being things that are called for in the Constitution for the president to do, like issue pardon, sign legislation, be commander in chief, up make appointments to the federal bureaucracy. And the court said that those things are official acts and the president cannot be prosecuted for them. He can't be prosecuted for unofficial acts, things that he does as an as fast as a private citizen or maybe as a candidate for office. However, the court made it much more difficult than people really imagined they would in proving that some act is an unofficial act and that the president would be subject to liability. - Well, that's interesting question. So they're ultimately the final arbiter of what is an official and unofficial act. Is that safe to say? - Well, the Supreme Court gets the last word on everything. That's the way that works, you know. But I think more importantly, this is will really free up the president or whoever the president of the United States is to do all sorts of things that we previously thought would not be acceptable. So for instance, a president now could, you know, sell a part or sell an appointment to a particular federal office. The kind of thing that remember Rob Blagoevich, who was the governor of Illinois, got in trouble for when Obama became president and he tried to sell the seat. Remember, he was criminally prosecuted. The Supreme Court basically said, you couldn't do that to the president. The president can't be prosecuted for a crime involving his official acts and things like pardoning people, signing legislation, being commander in chief or appointing people to federal bureaucracy. Those were all official acts. - Do you have a good juicy hypothetical now that this has all come out? People are on Twitter talking about it. Do you have a good, I don't know what Biden could do today now that they've unleashed the presidency? - Well, I mean, I guess there's any number of things that Biden could do that, you know, one of the things that Justice Sotomayor says in the dissenting opinion is, look, if the court is serious that the president cannot be criminally liable for anything involving official acts, well, then he could use the commander in chief power to order, you know, Navy SEAL Team Six to go murder his political rival. And, you know, I think that's, it's obviously a far-fetched example. I don't think that's really going to happen, but nonetheless, she makes a good point. But if it did happen, are you telling me that the president really couldn't be prosecuted criminally for doing that? And what the Supreme Court says is, yes, the president is immune from such criminal prosecution. - Dr. Winkler, you know, a lot of people, unfortunately, have been turned into court watchers over the past few years have been necessity. You, obviously, being a professor at UCLA and a constitutional scholar, you have dedicated your life to studying these things. And one of the things I like to do when we talk about this is I like to ask people who have been in it for so long, you've dedicated your life to this. Did you ever think that you would see a day like today? Did you ever think that you would see the Supreme Court rule that a president was immune from prosecution for quote-unquote official acts? What's it like for you as an individual to experience what's happened today? - You know, it's very surprising, but the surprise is moderated a little bit by the fact that we've had so many, you know, absolutely unprecedented opinions by the Supreme Court since the appointment of the three Trump justices. I mean, we've had court, the court's obviously overturned Roe versus Wade. I never really believed that would happen, but it did. The court has overturned the Chevron case and overturned a big case on union free speech rights a couple of years ago. There's a lot of like really foundational 40 year presidents that the court has overturned. And so when the court reaches a decision that seems unimaginable in some ways, it's almost like we should be imagining it. That's what the, this Supreme Court is. That's what it does. And that's, you know, the real problem is now I have to rewrite my syllabus in my constitutional law class. - Oh no. You know, and it seems like they took a lot of time to get to this, to release this opinion. And they would have certainly had enough time to weigh in on whether or not the actions around January six, which has even been died for, are official acts. And yet it is, as I understand it, they didn't even weigh in on that part. They kind of kicked this Ken down the road. Do you have any feeling of why they wouldn't have at least cleared that up, seeing as we're in the middle of a campaign season? - I think the reason why they didn't clear it up is because they don't really know what to say about it. I don't think they understand what the distinction is and how the distinction will really work in practice. And I think the ultimate effect is delay. That this now requires the lower court, the trial court in the January seven and January six case to now address all of the allegations and whether they're official conduct or unofficial conduct. And then after Trump, you know, loses some of those arguments and the court says some stuff is official conduct. Well, we might very well see that that'll lead to an appeal to the court of appeals, the D.C. court of appeals. And then maybe even to the Supreme court again, where we'll once again be asked for them to provide some definition between official and unofficial acts. So I think this votes are a real hold on the Trump trials for the time being. And probably not just the January six. You know, the classified documents, he's gonna say some of this was official conduct when I took a hold of these documents. And, you know, even if it's not a particularly strong argument, perhaps that's going to have to be appealed and that's going to have to be litigated. And it could be quite some time before we see any kind of trial go forward, even if Donald Trump loses the presidential election. - Well, we've heard some of these judges ask questions during this process on this case. So I think you can kind of get a sense of maybe where their head is at already. What do you think? Are they going to say that what he did around January six, calling Georgia, say, you know, Rafis Burger and all the other things that he did, are they going to term this as official acts of the presidency? - I think they're going to say a lot of the stuff that he has been charged with is official acts or at the borderline of official acts. There might, there will be some stuff, his dealings with the Rudy Giuliani, for instance, and some of the other players who were clearly not part of any kind of official government body. It was just his private attorneys and his private counselors with John Eastman, for instance. I think there's some stuff that's going to survive, for sure, but it's going to be a long time before we get there. - So Dr. Winkler, one of the foundations of liberal democracy is the idea that the law is the arbitrary force. It is what goes between us. We're supposed to all be equal in the eyes of the law. I find it very rich that John Roberts in his hearings in front of the Senate said, nobody is above the law, including the president. Thanks for that. How do you feel looking at the fact, and we were talking about this earlier, the quote unquote official acts, unofficial acts, is just some of the most squeezy language that you could ever see. It's completely subjective. It gives the Supreme Court a lot of leeway to do this or that on either side. It reminds me a lot of one of the unprecedented decisions going back to the 2000 election, and we've talked about this on the podcast where they ruled on the election and they said, "Oh, this is only in this case. "There's no precedent here. "Don't worry about it, right?" Like, what does it say that the law is becoming so subjective and so squishy and so sort of malleable, depending upon political ideology and origin? - Well, I think maybe we're coming to terms of the fact that it's always been pretty manageable and malleable and very plastic, and it can be molded. And it makes it that much more important to think about who's doing the molding and what are the commitments of the people who are doing the molding. And the truth of this is the justices and the majority of today's Supreme Court were chosen, in part because of how they would mold the law in a way that was very friendly to the president of the United States. We saw that today, that they would be hostile to Roe versus Roe. We saw that a couple of years ago, that they would be generally hostile to gun regulation, and although a major gun regulation survived this term in the Supreme Court, kind of surprising, nonetheless the court has made it much more difficult for gun laws to survive as a general matter. And so we're seeing people who were chosen for their molds, now applying those molds to the law, we shouldn't be that surprised. The rulings are the outcome of the 2016 presidential election and the three appointments that Donald Trump had. And it just highlights the importance of presidential elections. - Nick, I always appreciate when legal scholars get down into the real stuff about how it works. Dr. Winkler, one last thing from me. I'm tired of the weather here, it's too hot. I'm flying out to Los Angeles. I'm taking out some student debt. I'm sitting down in your intro to constitutional law class. I raised my hand on maybe the first or second day I say, Dr. Winkler, this is obviously a terrible situation. All of this is really, really problematic. What would you advise if you had to talk to me as a young scholar, what is it that we can do in this situation to try and reform the court? Where should this thing go? And of course, you were doing this as a complete thought exercise as an expert. - Well, I tell you, Jared, I faced this question year after year. You wouldn't be the first student to ask me that question on the first day. And truth be told, it's a difficult one to answer. And what I tend to think at the end of the day is that this is all an exercise and what you were just saying, the malleability and the fasticity of the law. And if we understand that the law is not some, sort of brooding omnipresence in the sky, that we're gonna just sort of pull down in some sort of divine job, but rather another product of human interaction and human society that we try to do the best we can, and that the law is fundamentally malleable, then what you have to do is recognize how do I turn it and use that law so that it makes the world a better place? We see some people who are using the law, maybe make it not a better place. How do you fight that and how can you use the law and use the Supreme Court to reach the results that you want? Ground versus Board of Education wasn't pre-ordained. It wasn't built into the text of the Constitution. We knew that the courts at the time and the Congress were hostile to racial integration in places like schools. So that's a change that was forced upon the Constitution by people who sought to make the world a better place. And I think that's the kind of long-term outlook that you have to have on it. And maybe in the short-term, you might wanna think about adding some more seeds to the Supreme Court. - Yeah, I completely agree. I think that we've sort of crossed that Rubicon and we're looking at a whole different world. Dr. Winkler, we cannot thank you enough for coming on. Thank you for doing the hard work and talking with us. And yeah, just best of luck, I assume that your next semester is going to be way more interesting than any before. - Well, Jared, I'm hoping you're gonna be in my class. I'm gonna be looking to be in my class. - Hey, I'm still dealing with that student debt, my friend. We'll see. (laughs) - Thanks so much, guys. Sorry about my bad lighting, but I appreciate you guys having me on. - Absolutely. Thanks, Adam. Wow, you know, he's awesome to have on the show. It's always so illuminating, but sometimes it's chilling, right? When you hear exactly how he breaks it down and where we're at, right? And how he can feel hopeless a little bit. - Well, you know what's interesting about it, Nick? I talk to a lot of legal scholars, a lot of constitutional people. And they usually fall within like three categories, right? There's one category where they're honest about it. And one of the things I appreciate, and this is why I asked Dr. Winkler about this, is some of them are like, listen, this thing has never been fair. This thing has always been really screwed up. You gotta work to try and make it better and sometimes it is not real, sometimes it is not a decent thing. You get a lot of die-hards who are like, the law is the law, and that is how it is. And you can't question it, which is bullshit. It's always been bullshit. And then there is what is happening with like the Federalist Society, Nick, which is they understand that the law is a weapon. They will talk about institutions because institutions protect them, but they understand fundamentally that this is a weapon and that's what we've seen. They went ahead, they played the game, and for the record, they won. They did it. They did what they set out to do. The oligarchs who have funded them and created this whole thing, they won the game. And the good news is that the game isn't over yet. It's just, you know, it's really getting into the late innings. - I hear you, exactly. And the fact that we have enough, millions upon millions of people who are full-throated leaders in support of this is the probably why we were so afraid in 2015 when Trump came down the escalator, so I think that we realize how damaging that rhetoric could be and how inciting it could be. But it doesn't, well, we said this before. It wasn't 2015, I forgive me. Using fear and anger to stoke political energy, I suppose we'll call it, from the GOP side was leading to this. No matter however, that many decades in the making, right? Probably since the Civil Rights Movement, I would probably say, right? The silent majority was what kind of started the rumblings of this. And now you have people who don't even understand the basic tenets of what they stand for. They just think that there's a side that they're on and they need to have that side win. And the worst part about it is like, listen, Joe Biden wins. Is it the destruction of our country, even from a GOP standpoint? No, the country moves on. It's what I'm arguing about taxes and about drilling and some of the stuff with the environment, whatever, right? But to hear Trump describe it and be proven wrong every time about how he describes how everything will be decimated and why in ruin, you know, people believe that, right? It's hard to imagine that people truly believe that that's what's going to happen. - Well, I mean, as Trump said over and over in the debate, we're in literal hell right now. That's what it is. The Republican base mostly does not understand what's going on. They're living in a pseudo reality is what it is. A apocalyptic fear is the only way that you'd necessarily get what's happening happening. Meanwhile, you're exactly right. This goes back to the Civil Rights Movement. This goes back again, you know, Brown be bored. That's where the Republican party started to move in that direction. They recognized they were like, Oh, we need to go ahead and tie all these culture war issues into the opposition to desegregation. And that is how this whole thing has picked up speed. And then it moves into the 1970s where all the wealthy oligarchs in the country got together and they're like, we need to pull our money and we need to take over our culture or politics and our judiciary. They did it. And now we're living in the consequences of it because we didn't take it seriously. Nick, speaking in consequences, before we end this episode, we have to turn our eye to a developing situation. It's something we talked about, we warned about, and also we need to look at it as a warning for America. Over in France, Romaniel Macron listened to his advisors, much like our president is currently listening to his advisors. He decided to react to the European Union elections by calling for a snap completely out of the blue election in France. The numbers were bad to begin with. Everybody said, hey, guess what? You ain't got the horses here. And we looked around and we had the first round. National rally is leading with 33%. Again, the National rally is Marine LePins, xenophobic, right wing, white supremacist, terror was like far right authoritarian group. Macron's party came in with 22%. Congrats, big guy. The popular left front that we talked about, it came in second with 28%. There is a second round coming up. Macron has started talking about creating a coalition with popular left. We'll see if that necessarily works. But right now, it looks like National rally is poised to take this thing. We're looking at Jordan Bardella, the young apprentice of Marine LePins as the possible new prime minister of France, which would create a hell of a situation. As Le Mans, the newspaper has said that the right is now on the "door step of power." Turns out, when you take gambles like this, they don't pay off. Yeah, I would like maybe a more of a post-mortem to figure out how many other options Macron ended up having in this situation. But I think the sad reality is, I saw a map of France and what parts of the country were voting in huge numbers for Marine LePins and her party. And it was a lot of rural stuff, right? There's a lot of people out, not in the cities, it's a lot like here. And so it was unfortunate, you'd like to think that there might be some more progressivism, just sort of gently out to the country as it goes into the brutal beauty of the South of France and whatnot. But no, it doesn't. That the xenophobia and the hatred of others is as virulent there as it is when you get out to the areas in our country that we have that as well. So it really is problematic for a lot of reasons. And historically, when we're going to have France against that situation, that could lead to some other serious problems, especially when you think about Russia on the door of taking over Ukraine and perhaps more, it wouldn't be that hard to kind of see coalitions forming around that. - It would not. And I just want to throw a little something out for you. I don't know why my mind's here, Nick. But once you think about the fascists and the Nazis that started largely with a rural base that cultivated the idea of a folk spirit, there's something about, I don't know, real Germany or real Italy or real France. And the people in the cities are decadent and degenerate. And we need to take back power. And also, by the way, they're conspiring with hidden forces. Wink, wink, the Jews, the deep state, whoever it is, to bring in people to replace us. And it is a cultural existential war. It's the same thing. It's the same story over and over. It's happening in France, the same way that it's happening in Great Britain, the same way it's happening in the United States of America. This is a systemic problem. And as neoliberal globalism turns to its next page and as things get worse, they're going to use the same rhetoric that you were just talking about to create an environment in which they can take power. And weirdly enough, they're sort of on the same side as Vladimir Putin and other right-wing authoritarian regimes around the world. It's almost like we have a right-wing authoritarian international movement. - Well, how about this? A great deal of the consternation from these people who are voting for these fascists is the fact that Muslims are coming in who are escaping war-torn countries and are coming to Europe to find peace. Well, let's figure out why they're fleeing from their countries and having to leave to come to Europe, for instance. Well, it's because the West is creating all these issues with these countries and kind of forcing them out. And just like we were creating all sorts of havoc across Central America for all those years and instability with governments with the CIA, that it's like you could blame the actual Europe and you're blaming the United States for the issues that they created that caused this sort of hatred of the other that come to this country looking for a better life. So it's a vicious circle. And I suspect you could trace this circle over and over and over again throughout the history of our civilization. - Here's what happens. The people in power make mistakes. They create future consequences that then lead to present consequences and they blame it on other people. I know it might shock you and our listeners, but there was something, God, Nick, what was it? Oh, God, we went around the world and bombed all kinds of places and- - The war on something. - Oh, the war on the war on the war on- - Terror. - Terror. - Terror, that's right. We went around and bombed all of these countries and created mass chaos so that we could take their resources and try and bring them within our sphere of influence and power. And by the way, to go ahead and bring this show full circle, that is something that George W. Bush and his administration should have been prosecuted for. They should have been held accountable for. And instead of being held accountable for that, the buck kept getting passed and passed and passed. And then eventually when it comes time to deal with the consequences, the same people who did it are the ones who are now like having to diagnose it and solve it. And none of them are gonna stand up and say, "Hey, my bad." For the record, Joe Biden's not going to stand up tonight when he speaks about the Supreme Court and say a large part of the problem is that I was part of the Iraq war and I helped push the war on terror. So what are we doing? Even our, quote unquote, best choices are the people who created the problem in the first place. So it just keeps cycling and cycling and cycling and when people run out of trust in those things, which by the way, they shouldn't have trust in those things, you have demagogues and right-wing authoritarians who are there to pick up the pieces. All right, everybody. Again, another thanks to Dr. Adam Winkler. We're so glad that he could take time from his busy schedule, come talk to us about the Supreme Court ruling. We will be back on Friday with the Weekender edition or a reminder, go over to patreon.com/muckeringpodcast and our sports show, keep us editorially independent and trucking along. I have seen Nick and I don't know how everybody else felt about it. The post-debate show, I think was one of the best shows that we've done and it meant the world to me and I thank you for everyone to come out. We had a massive audience, we had a massive response. People supported us, people felt like they needed to hear some tough, honest talk about it. Again, patreon.com/muckeringpodcast. We can't tell you how much we appreciate you. If you need us before then, you can find Nick at Can You Hear Me? Ask Me? You can find me at Jycexton. For the love of God, be safe. (upbeat music) [MUSIC PLAYING]
