Well, whiskey coming fame, my pain, does my brain? Oh whiskey, don't let me go? From Powerline blog dot com and produced by Ricochet dot com. This is the three Whiskey Happy Hour with your bartenders Steve Hayward, John You and Powerlines International Woman of Mystery Lucresha's gotta give me and let that whiskey blow where you're been in lowest down and low Well, Hello everybody,
and welcome to the three Whiskey Happy Hour. Is I Lucresha, the International Woman of Mystery, happy to host this episode with my favorite co host and only co host, uh, Steve Hayward and John You. Good morning, gentlemen, Good morning, how are you? And by the way, I learned some trivia this week. James Garfield's wife, the president who was shot by the disappointed job seeker, remember him? Guess what his wife's name
was, Lucretia? It was It wasn't no way. Remember I told you guys that I had to give a speech on Women's Equality Day on the nineteenth Amendment, which you know the irony of that that Tim I am the one calling for the repeal of the nineteenth Amendment, which, by the way, I saw this mooning of coal about transgender and whether people think that we should allow children under the age of eighteen to get trans sex surgery whatever they call
it, without their parent consent, and women democratic women without children were in the like eighty five percentile on a yes, yeah, in favor of it, of course, in favor of it, yes, And then you know, pretty overall a large majority are against it, of course, but when you parse it out on ideological gender lines and things like that, it's just one more proof that we should affect repeal the nineteenth Amendment. But anyway,
back to Lucretia. I didn't realize when I chose Lucretia, because you know, I chose it for a very noble reason, that Lucretia Mott was a famous, famous suffragette and we're still suffering, suffering, although like like what's her name Stanton, Elizabeth Katie Stanton, they were also abolitionists before they were suffragettes, and the feminists always forget that. Both Elizabeth Katie Stanton and I forget the other leading feminists suffragettic times well, but they're all they were all
militantly pro life nanci abortion. That always gets forgotten whenever the Pantheonic this Heroes is chartered for. Oh, yes, Stanton wrote some very strong statements about the horrors of abortion and so forth. So well, and I just want you guys to know that I managed to write my speech mentioning those women once and then quoting Abraham Lincoln and Martin Luther King and emphasizing the whole idea of human equality and kind of glossing over the whole nineteenth complment. It was.
It was pretty good. Actually. Of course, Lincoln was an early supporter
of women suffrage. You know, yeah, I'm not necessarily against women, Okay, yeah, but it was a little bit like we see today, John, The political in fighting was always about which which caused temperance, abolition, women's rights and before women voting, where women rights, women's rights for things like the right to own property, the right to inherit property, a whole bunch of things women couldn't do, and in some states, believe it
or not, unmarried women could do things that married women couldn't. And so that was a big part of the fight too. And I'm not necessarily against some of those things, but they were always in fighting. And Frederick Douglas was at one time a big suffragette, and then he got a little upset about their the Elizabeth Katie Stantons especially, who were very much not just women in favor of women's rights, but really only in favor of educated white women's
rights. And so there was, you know, there was all this, uh, even though they were all in favor of women's rights. Abolition and temperance, you know, getting rid of alcohol. Another reason why I don't think I should have been named after Lucretia Mott. They fought over which should take priority when right right, well, speaking of temperance or in temperance, I did enjoy last night. I think on Creshy you recommended this once. I tried some fireball cinnamon whiskey. Oh, no, I've never commended.
It's not even whiskey. It's well. I liked it. I have to say I was surprised. I thought it would be horrible, and it's way better than the peanut butter whiskey I had a few weeks ago that John, have you ever tried fireball whiskey? No, I was gonna say. Steve is not at home, right, Steves in Los Angeles. So I wonder when you travel, do you carry with you the little umbrellas to put in
your drink. They just come with do They just come at the bar automatically for you'll usually the ladder right, actually, But cinnamon whiskey is one of those things that were Okay, I wouldn't put an umbrella in it, but like, I don't drink hot chocolate very much anymore, but cinnamon whiskey, the fireball whiskey and hot chocolate is amazing. See, I thought, I think I remember you saying that once. See I found it. I just drank it and meat and it is a nice little spicy tang to it.
So I mean you, you and every sorority girl. Okay, it's just, oh my god, I'm so drunk. All Okay, what are you drinking? John? Last night, by the way, we were having because of schedules again having to record early in the morning, and even I can't quite tolerate whiskey this early ten o'clock in the morning. Maybe I could do it, but it's too early, John, don't think I had anything special. I had High West. Have you guys had High West? No bourbon,
Oh, it's not a very high end bourbon. It's more of a medium to low end bourbon, but you know they had it at Costco. Has got a cool bottle. The bottle looks like the kind that are in the back of the bar during a Clint Eastwood Cowboy shoot up in the bar, you know, very tall, skinny, right, is there a hair in it? Sorry? All right, enough of that what you got for
us today? Lucretia a minute oologize for coughing and sneezing on this podcast because I am getting over COVID and I just want to sure all of our conservative listeners out there there's nothing to be afraid of in this latest round of election. What are we calling it? Any election of Crown virus? And you don't need to mask up. I will remind you that masks are very dangerous, that they're toxic to people, that they cause all sorts of health problems
that before COVID came out. Just so you know, before COVID came out, OSHA rules required any employer that was going to have an employee wear a mask that they had to get medical fitting. They had to go see a doctor and make sure that the respiratory system could handle it, that they were fitted properly, et cetera. OSHA quietly removed all those rules when the CDC wanted to force masks on everybody. But wearing a mask is not a good
idea. There is zero evidence in any respected study that masks actually prevent either the spread or the contagion of COVID. Don't do it. Let's not give in this time. It's all I'm saying, because I'm not wearing a mask. If if they tell me I have to get where I when to get on a plane, I'm going to say, refund me my money in cash right here, and now I'm walking. Yeah, I mean, all I can say is that poor COVID virus never had a chance when it ran up
against you. I'll just that's all. That's right. It's not never case. Go out to the virus. Right, Thank you guys. But what you guys think is going to happen, because I thought I heard that Georgetown was reinstating some kind of mask mandate, and well I heard I heard that school It will be schools that go first, I bet if yeah, some kind of outbreak of this new variant, that our employers will be faster even than businesses or governments. Right, reimpost some kind of mask Manning. What
do you think will happen? Do you think people will comply this time? Or will they'll be uh, you know, rebellion. I will, I will, I will fight it and I will. I'm I'm all eligible for retirement, So if they really want to force it, I'll go ahead, and you know, make them fire me and then make me pay out, make them pay out a huge settlement against me. I am not ever wearing another mask no matter what. I go to the to a particular doctor's office
and they still require masks and I refuse. And the one time I went in there and gave them a lecture about how bad it was, they stopped asking me. Why Why am I not surprised at that alcohol? But the facts on my side, I know, I know the facts. I mean, I mean, I think that's the bother something about this. Uh. And I think I mentioned this to Steve last weekend when we were talking that along with what John has talked talking about this, you know, obvious new
craze to get everybody back into mass and lockdowns. You're seeing a bunch of articles in you know, places like Salon and the Atlantic reminding us that we need even though they might have been wrong about a few things, reminding us that we need to trust our public health experts. Yeah, right, when those guys are saying it, you know you can't, so of course, I mean, and if we ever had any doubt about it, we know absolutely we can't trust them. But there are a lot of people out there
that don't dig one one level deeper to find out this is nonsense. And don't get another damn vaccine, you guys, you don't need it. I don't want you to have a heart attack and die. This this podcast brought to you by the Robert F. Kennedy Junior Campaign for President. Okay, enough about COVID, about COVID, but speaking of health issues, what about
our gerontocracy? What do you I mean? I actually did a little research this morning looking into how many old people there are in the highest levels of our federal government. And it's I mean, did you know that Eleanor Norton was eighty six years old? She's ageless. She's been around my entire life. Yeah, mind you and then some and Maxine Waters is eighty four right right, Okay, So Mitch McConnell fell in March and got a concussion.
In July, he experienced an episode where he just what do they call it verbal paralysis? Is that the actual term for it? I'm not sure. No, it's gotta be a phase. I'm not sure it's a phase something. But yeah, he froze up and yeah, yeah, but you get what I mean when I say yes, So like for thirty seconds and his AIDS came up. Happened again, what the day before, yesterday or this week? But his dog, his doctor has pronounced him okay to continue his
duties, and so has Joe Biden. Yeah, Joe Biden's looking for a lifeline on that front. Right, So so what do you think, John, should we have first limits? Well, you know, the Constitution doesn't have any, but it could be done by the parties themselves. It actually does. It has the other kind of age limits has minimum age minimum minimum age, yeah, not maximum, which is interesting, although there were so
many ways to die back then. IM sure they'd never expected anybody to get to seventies in charge, right, So I as to Senator McConnell himself versus just yeah, we have a very old president, veryal majority leader. We don't. Actually, it's interesting in the House, is the is the institution that doesn't suffer from this, right, Kevin McCarthy and Hikim Jefferies are not in their seventies and eighties, but you know, the Senate Majority Party leader.
So I don't I don't know. I think that this is something the American people should decide in elections. They could have taken Biden's age into account last election. He's almost certain they're going to take his agent to account this
upcoming election. The problems that are Republicans are it looks like right now are going to nominate someone who's you know, just behind, you know, just behind Biden in the race to old age in terms of I was just gonna say, in terms of Senator McConnell himself, I certainly hope he finishes out his term. I think that's what he has said, is he tends to finish out his term. But he didn't say about how much longer he wanted to stay as Majority leader. He did say it was going to fulfill his
terms. Yeah, it's twenty twenty seven, but his term is h as leader, as leader leader two years. Yes, yeah, he said he was going to do that. This when I worked in the Senate, I you know, I was there when strom Thurmand was still around, and I even sat behind Senator Thurmant during some hearings and backed him up once. Can I can I tell this story? This is a sure story. So strom Thurmand, you know, I think was of must have been in his nineties.
So this is one one issue where strom Thurmond and the Senator I was working for, Orn Hatch, were on opposite sides. So it was a committee meeting, committee meeting where they were voting on this issue. And so you know, when you're an aide, you have this binder and on top of the binder you put your draft through the remarks the senator is going to
make. So Senator Hatch to chair the meeting, he opens a binder, reads the speech and it says at the end it says, you know, so I support so and so for confirmation and vote mut and then Senator Hatch leaves. Then a few minutes later, Senator Thurman walked into the hearing room by himself. This had never been seen before. He always had aids with him. I always had said with them, to show them where they go. So Senator Thurman unaccompanied. You know, red alert, red alert,
red alert. You know larv's are going off, but there are no Thurman staffers to be found, and he shuffles over. You know, he'd been chairman of the Judiciary Commitee for a long time. So he sat in the chairman's chair and then turned around looking for his aid. The old hun person there was mead, and he grabbed the binder. We had a small struggle, but that man, he had a grip, even at the age of
money. Yanked the binder out and read Senator Hatch's speech out word for word, but somehow new to insert the word not in front of each verb. So he said, I do not support this nominee. I do not vote to send him out of committee. It was an amazing thing. And then he turned around and he said to me, you're a great American, shut
the binder and walked out the door. So, based on that experience, it seems to me you could actually serve in the Senator pretty old age and prim Senator McConnell coprised day there many years sooth just maybe he doesn't eat the pressure of being a majority leader. Steve. That brings me to the question doesn't really have anything to do with age, I'm told Grassley, who's sharp as a day, gets up and runs every morning at eighty nine. Yeah,
I know. He Well, that's that's an example. I mean, and you know people used to say, I don't know if this is true that Oliver Wendell Holmes had those wits about him at nearly the age of ninety on the Supreme Court. There's a famous story. Well it leave that aside. I understand that. But there's the famous stories. He's eighty eight years old and he's walking down the street with one of the other justices and a pretty lady walks by in a skirt and he says, oh, to be
eighty again. I think that was fun. That's that's something you can imagine strom Thurman saying too. As we know. Look, I mean, I don't think there should be age limits, but I do think, uh, what we're observing right now though, Well, I just go back to the seventies and eighties, and what do we used to say about the Soviet Union. You know, it's all these octogenarians at the at the Polar Bureau, and how staggnant they were. I think this is a sign of just the
stagnation of our political class. And yeah, you mentioned John that you know we have Hockey and Jefferies for the Democrats. But you know, up to that point you had Pelosi in or eighties and Stenny Hoyer and late seventies I think are nearly eighty and I think, oh, well, they're okay. But the point is is that I do I think there's something to generational changes, right and yeah, But I don't want to interrupt, but I want you to think about that in terms of John Fitterman and AOC. Are they
our future? Uh? Well, I prefer to think of I don't know. I like some of these younger looking senators like Holly and Vance and so forth right, they've got an energy in a cotton exactly right, Cruc. But one, I mean, so just some thoughts. One is, is this not your guy's fault. You're part of the aren't you guys at the tail end of the Baby Boom generation? You guys just won't go you well, right, isn't it? Isn't it an example of the Baby Boom generation
just still grasping with the very end of their fingertips onto power. And it's amazing, actually how much power the Baby Boom generation still exerts in our society. So just maybe when the Baby Boom generation really does all go off to the great nursing home in the sky. We're really going to see a huge shakeup in our politics, because yeah, I generally agree with that, except the millennials may be worse, that's all. But that doesn't mean it's going
to change in a good direction. But it's just it seems I agree. So I don't know. Sometimes I feel like we are, you know, being governed by an ideology that's aged like a wind beyond it's, you know, time to be put away, and we're gonna, we're gonna, we're gonna see some kind of radical break, but who knows which direction it will go in? Leaving Biden aside for just a moment, because I think that's
a different thing altogether. You're right, it's the voters responsibility. But have we now put in place an electoral system, or allowed an electoral system that just makes it nearly impossible, not entirely, but nearly impossible to get rid of an old incumbent like Dian fines An. I mean, I know you guys didn't vote for Dion Finstein in the last election, but how did she go in the first place? Well, remember that's a good point. She
didn't have opposition in the Democratic Party. I forget that was Kevin de Leone from Los Angeles. Yeah. Remember California's schoolball system now where the top two people go to the So she ran against another Democrat, sort of Harris by the way, she ran against what's the one of the Hispanic congresswomen from Orange County and one. But did she also run against the mayor of Los Via Ragosa Rio Ragosa might have been he might run for governor. I can't remember,
right, it's uh. You know, there's a kind of like when it comes to California politics, who really gives a damn? Well, there's a bit of that, although there's a broader story here which I don't propose we take up of the Bay Area, so planning LA as the center of gravity politically in the state for Democrats, which means that the center it used to be LA in a rivalry with San Francisco, and you had the Willie Brown machine versus the Burman Waxman machine in LA and LA does not have that
cloud anymore. Anyway, that's another story. So the only upside is you already see what the change you'll be like because at least at the state level, you can't get away. I think with having this kind of gerontocracy, as Lucretia puts in, you have, you know, very I think a good crop of governors at the state level, who are you like Ron de Santis, right or Governor Abbott in Texas? You have people who are figarrison, so you can kind of see what's coming well, y'a. Also on
the left you have Gretchen Whitmer's and Gavin Newsom's so well. And let me go back to Dianne Feinstein for just a moment. Is it not really just shocking to think that she's not capable of making important life decisions, so she turns power of attorney over to her daughter. But she's somehow capable of making decisions for an entire country of three hundred and thirty three million people. I mean, at what point does the Democrat I get what's behind all of that?
Is it going to be an idiot like Katie Porter Porter or Adam Schiff or Barbara Lee. I mean, there's the fight behind the scenes. So Diane Feinstein has propped up like Bernie's Weekend at Bernie's because they can decide. I mean, but How did the most powerful, well governed at one point country in the history of the world end up in this sad situation? And I feel sorry for Diane Feinstein. Yeah, you know, she looks like
Cordaver. She looks like she's disinterred. Oh no, it's bad. Yeah, as if they're also a political incentive, which is doesn't really apply to California much, but that applied to smaller states, doesn't it that because of the importance of seniority in Congress. If you're a state and you have a long serving member of the House of the Senate, you lose a lot of power if you vote those guys out. Yeah, that's why Strop Thurman was
from South Carolina. Rights who was Ernest Hollings was like the junior Senator from South Carolina for like thirty years. I don't think it's just the committee assignments, although that's part of it. But I will tell you here in Arizona, Mark Kelly replacing John McCain has been an utter disaster for the military installations here in Arizona, because, I mean, John McCain got everything now And I don't want to go into this in any detail, but I'll just tell
you every mission, every unit. It's it's just being poached by other states that have more powerful senators on you know, the Arm Service Committee, etceter et cetera. So I can see that too. Mark Kelly's just immoral and that's the big problem and absolutely useless. But you know he was married to Gabby Gifford's and Gabby Giffords still inspires anyway. Sorry, I'm off on a tangent. I do want one more thing on this, on this subject, John, what do you think about the three Johns? Oh so? Well?
Actually, who's the third? So I know John, John Moon, John Barrasso. Who's the third John John Cornin? So there's a there's a good example. I think the Republicans actually have a very strong bench of people falling right behind. She just made a terrible face. It was spit up our coffee. But it's just like I think about the alternatives to Trump. We have an really strong bench of alternatives to Trump. But I think we do in the Senate too. I had the occasion over the summer to be
at an event where Thune spoke. I was really I came away extremely impressed. I thought John Thune was really yeah, smart, spoke well has the charismatic nature and politics, which I don't think McConnell really has or even once tries. You know, I have a lot of respect for Senator McConnell, but he's not the you know, he's not the popular guy at the used car salesman convention. And I thought Thune, I mean, I thought Dune had a lot of uh, you know, oppressive qualities. I don't know
Brasso, and I remember being around Washington when Gordon started. You remember he had been on the Texas Supreme Court. He was a very impressive guy. I thought he was a very I think I could you think he's also very very capable guy. Here's a little a trivia tidbit. Senator Cornyn's first general counsel was no one, none other than Jim Hoe. Oh now Judge Hoe, right, yeah, now, Judge the Fifth Circuit, who is very well thought of. It worked for me at the Justice Department. That's how
I came to meet came to meet Senator Cornin. So. I don't know brass So, but those other two I'd be quite happy. And I think the party would be Repolan partly be in good shape to have them as majority leader. Steve I might want. My one and only exposure to tune in a small gathering was several years ago, and I came away distinctly unimpressed. But it's possibly he has gotten better, and I don't know. I think I don't know. I also think maybe it doesn't matter. But now they're
whispering about who's going to replace Mitchy. I've never done before. I kind of like that. I think a senate, a senate, a party leader ought to come from a bigger state, which is why I think Cornin from Texas makes a lot of sense. But oh god, you guys, First of all, do you think, well, the only of the one of those three that I could possibly support would be Barazzo because he's the most sound. He's not from a big state. I don't know if that really matters.
Kentucky's not a big state either, Steve, so yeah. But I think that the problem with the other two, this is going to come out wrong unless I give a little explanation, is that they're very anti Trump and becoming more so. And it's I don't want you to think that I'm you know, so pro Trump that uh, you know him above all else that
it's much more complicated than that. But the problem I see, excuse me, I'm sorry, is that if they take the side of Mitch mcd which is basically what their positions are with respect to Trump and January six and some of those other things, what they don't see and cannot fight against is what's really happening behind all of that, with the Letitia James and everybody just bringing
down Trump. But bringing down Trump is not just about Trump. It's about silencing that silent majority, silencing the people who are done with the elite corruption in Washington, all of those things. That's what's behind it. And if you're not willing, that's why I despise Mitch McConnell so much. I hope he gets better and goes and retires and lives with his grandchildren or something.
But we Republicans always have to pretend to stand on principle when they don't even know what the damn principle is. And that's what bothers me about the other two Johns. I don't you don't need to be a Trump supporter, but you can't come out like Mitch McConnell did and talk about January six as if if it's in an insurrection. It was never an insurrection, which leads me to my next topic. John, tell us a little about that nice article
I read they wrote and why it's important right now thing? Okay, Yeah, Bob Paulson argument which is gaining traction. Actually, you see reports and some media. Let's I just don't know whether if it's true or not that some secretaries of states, you know, primarily in blue states, are thinking
about declaring Trumpet insurrectionist and removing him from the ballot. So, for those who have not read it, this argument, Paulson and Bout are originalists, scholars, conservatives generally right in conservatives, Yes, meaningless term these days. Thanky, Okay, So lucretia won't allow them to be Senate majority leader,
it seems. So. This goes to the fourteenth Amendment, Section three, and which says some which has something called the disqualification clause, and it basically says anyone who's been a senator, a representative, or president or vice president president, or held any office civil or military under the United States or under any state too, and then goes on list other officials who took an oath to support the constitution who have shall have engaged in insurrection or rebellion against against
the same, or given aid or comfort to the enemies thereof right is disqualified from office. So the key phrases shall have engaged in insurrection or rebellion, I think. So what Bard and Paulson say is so they make two claims. One is this provision is still operational. It's not limited to the Civil War, to which we all agree. Yeah, I think everyone would agree
with that right. And then the second part of the article, which I think is the more tendentious part, is that essentially anyone can decide that Trump did commit insurrection and take action on it, and then it's up to Congresses, because then Congress is the last sentence of the clauses. But Congress may buy a vote of two thirds of each house remove such disability. So the argument is, you make a determination someone was an insurrectionist, and then Congress
has to step in and remove this disqualification. So my article argue that I don't think the second part of their claim is right, that Trump is presumptively an insurrectionist, that anybody can decide that, and that actually you have to act to remove his disqualification. And so I go through various problems if it
were otherwise. So, for example, that means any any official, any individual can decide that someone's an insurrections without any due process, without any you know, finding of any kind of facts, by any you know, authoritative tribunal, and decide that Trump's and insurrections. That means like a county clerk who's running the polls and their county could just go through the bouts and scratch out the name Donald Trump because they think, right, Trump's and insurrections.
It could I think, pose a threat to the federal government by the states, and it could pose a threat by states against each other. Right Suppose if California and New York's secretary states decide Trump is you know, presumptively an insurrectionist, remove his name. Can Texas and Florida start to decide other people are insurrectionists and start removing their names, right, So, it seemed to me this, uh, you know, this is again, this is unprecedented.
This is a position an issue that you know, really hasn't come up since the Civil War, I has only come up during the Civil War. It seemed to me that I don't know, I just inferred from you know, mccaulla versus Maryland principals like that. Then it really has to be a branch of the federal government that has to decide someone's insurrectionist, and I think ultimately would be the courts, because say the president says I'm going to execute
the laws. Suppose President Biden found Trump to be an insurrectionist and grabbed him and detained him, removed his name from the ballot. Of course Trump would have the right to habeas corpus and it would get litigated to the Supreme Court. Or if your Trump's prosecuted for insurrection, of course that's going to be reviewed by the Supreme Court. I'm the only one I wasn't sure about his
whether Congress. I'm just finishing this. I couldn't figure ot whether Congress could unilaterally decide someone's an insurrectionist, whether there be any judicial review of that. But I think it's got to be a branch of the federal government that does it. There was a whole argument in your article that I thought was good, John, which is really what it comes down to. We've talked about this before, but I want to bring it up. It's a simpler point.
Congress did, in fact exercise it's actual constitutional powers to look into the question of whether or not Trump committed actions that would amount to insurrection. They were not able to find enough evidence of that to convince the Senate to convict him. That should have been I mean, you make that argument, and these other arguments are a little bit I think peripheral to that basic argument, which is the constitutional authority to do so. Actually lied with Congress and they
determined that he did not commit insurrection. Steve shaking his head. Well, no, no, I'm shaking my head at I'm just thinking about the multiple ironies and bad faith here. So first of all, it's one thing for law professors to do a spe seculative article. That's what law professors do. But this is catching on. I mean, I've heard Gavin Newsom say that the Secretary of State in California should look into this theory and possibly bar Trump
from the ballot in California. There are as John, as you mentioned, we have I'll translate this way. I think we have three thousand counties in the country and roughly round numbers. Surely in one of those counties there's going to be a registrar of voters. It's going to be a deep blue county, Marine County, Cambridge, mass something like that. Who's going to say,
you know what, I think he's an insurrectionist. I'm going to block him from the ballot, and that person will get the cheers of the Harvard faculty and so forth, and yeah, then it may go to court. I'll leave this aside for now, because because I want to get to the main point about how this might play out. I could see some federal hourts, maybe in the Supreme Court saying, you know, basic Luther v. Boord and political question doctrine, this is a matter for the States. We
don't want any part of this case. I doubt that, but it's not implausible. But to engage in my favorite a hypo theoretical as Jean Pierre what's her name is now saying, so we were told here that oh, no, Vice President pens he has no authority to turn back the results of an
election bit based on the ambiguous warning of the twelfth Amendment. But now we're going to let some secretary of State or county clerk determine that Trump, who has not been charged with insurrection by the Special Council, is an insurrectionist and ban f in the ballot. All right, let's go one more step with this. At that point, if it actually stuck, he would have a write in campaign for Trump, and you could see people refusing to count his
name on that. So you talk about challenging. You see where I'm going with all this. At the end of the day, we have a chaotic election in which Trump can say legitimately that all of his votes are not being
counted. You have people like my favorite is Lisa Murkowski, who remember, was reelected to the Senate as a write in a few years ago when she lost the Republican primary, and there was a big controversy about what about write in votes that have misspelled her name because Murkowski's not that easy to spell, and they use the very permissive standard. If it's clear they mean Murkowski, will count us a vote even if they have her name spelled completely wrong.
I could see people counting the votes in blue states saying, well, you know, they didn't have Donald J. Trump. They just have don Trump or you know, the don or who knows. I'm sitting here thinking this is gonna makes She's gonna be on the under foot now. It's going to be Democrats will be election deniers, and suddenly Kamala Harris will be calling up John Eastman asked for advice about counting the votes in the Senate on January sixth,
twenty twenty five. It sounds crazy, but I'm trying to illustrate how utterly insane this whole scene is. And all I would say is, really quickly, it's a little bit like my argument against argument against John. The two John's that this this so what we've got now in this the law professor's law, the the experts telling us what the right thing is. It's it's three conservatives. So those two guys I can never bother to remember their names,
plus Michael Ludig along with Laurence Tribe. Oh look, it's a bipartisan consensus among lass law professors, experts, legal experts that Trump should be you know that this can happen. I hate that kind of crap. And that's why I hate conservatives so called who think that somehow just because they take the side of their being bipartisan. It goes back to Steve Sing. He always
likes to say that makes them the stupid party, the evil party. This is bipartisan ship is something really stupid and evil and that's what I find here anyway. Sorry that's my thought, but it was a really good article, John, I'm going to tell you that it was one of the things. Well, I didn't focus it on Trump. I mean, I didn't focus my comments on Trump. But you know, there are a lot of interesting
questions about Trump in this clause. But the thing I just want to also follow up on what you said about Lutig about these two conservatives and other conservatives who are taking this argument making this argument also are supportive of the prosecutions. You know, Conservatives generally, I like them because they support you know,
tradition and custom and the status quo and the car constitutional system. And what strikes me as weird I didn't come to me until you mentioned it, Lucretia about this these conservatives is that they don't really have faith in any of those things. So they're engaging in these really weird, outside the box, never tried before solutions to what they think of the existential problem of Donald Trump. And they're willing to, you know, really twist the constitution and break tradition
in order to get them. You know, He's they're like, you know, you guys like this more than me right there, like you know this
certain was his name, Saint Thomas Moore example. You know they're willing to cut down all the law in the forest of laws to get their double Whereas a conservative I would think should just have faith that our institutions will work properly and that the American people are smarter than most academics think, and they'll take note of all this and then they'll right vote and vote in the primary and general elections about it. Can I offer one more political thought and then an
observation on tribe just because it's fun. You mentioned the last class of section
three says Congress can remove the disability by a two thirds vote. Now, if you assume, as is widely thought, that the Biden, White House and the Democrats want to run against Donald Trump because I think they'll beat him, then what you want to do is Republicans in Congress ought to flow to resolution now saying there's uncertainty about this, Let's remove this disability prospectively so it doesn't cause chaos in the election, and then see how Democrats vote on it.
Right, it will split the Democrats right down the middle from the ones who want to run against Trump and the ones who's based demand that Trump they want, they'd want Democrats to vote against this resolution, right, I think
that'd be great piece of mischief to do. While we're on the subject of tribes, since you mentioned him a little before your time, John, but back when ed Meice in the eighties as attorney general, start of the original intent argument, one of things he noticed was the tribes best selling constitutional law casebook did not include the Constitution in it. That's liberal constitutional law. What's
the Constitution? Well, he of course immediately added it in the next edition, but that was quite an embarrassment to catch him not even including the text of the Constitution. And wouldn't be embarrassed by it probably, I don't know. I had one little less tie in and actually goes to something that Creas is going to ask us later about statutes and the Reconstruction Congress or something. But hands Fund Spokowski, Spakovsky at Heritage and I were talking about this article,
I did, and he actually had this really interesting point. He said, in eighteen seventy two, the Reconstruction Congress passed an amnesty Act, and it says this all political disabilities imposed by by this section of the Fourteenth Amendment are hereby removed from all persons whomsoever accept Senators and representatives of the thirty six and thirty seventh Congresses, officers in the judicial, military, naval services.
The United States has of departments, and foreign ministers of the United States. So if the Ambassy Act of eighteen seventy two is Congress's last word, then Congress said everybody in the country is not subject to this except the people in the Confederacy comment. It's a great point, my comment about that, And again this is there's so many things that tie into this. I see every day in my briefings that we're going to rename another Confederate this or that.
Da da da da da. It's quite moving to look back and to see the you know, that was a real civil war. People died, people killed brothers, and you know, we know the whole horror of that whole thing. But in the midst of that, the monumental effort to try to heal the wounds and you know, heal the animosity. And it made sense to say about those you know, leaders and shakers and the Confederate the rebellion,
that they're not eligible. But then you all, you see immediately on the ground with the eighteen seventy two Act and so forth the effort to try and move ahead, move beyond that, and anusia, this is even better. You have prescience, because I was just about to mention there was then a second act called the eighteen ninety eight Amnesty Act, which then said all disabilities from the fourteenth Amendment are removed for everybody as part of what you say,
national reconciliation. And apparently there was still a guy left from the Civil War named Joseph Joe Wheeler who had been disabled from office, and because of this law, he was able to command a cavalry detachment in the Spanish American
War. Ah. I mean, just we've talked about this before. I don't want to go into it, but just even looking at the surrender ceremonies across the across the United States, as you know, because of the lack of communication, instantaneous communication, the Chamberlain, even even what happens at Appomattox, it's it's so different from the kind of acrimony you see today over things
that are in some ways are not nearly as nearly as monumental. I guess you would say I would like to see it's not going to happen, but I would like to see. That's why I don't like seeing this stupid argument by people like Tribe and those other people, because all it's doing is fanning the flames of animosity worse, when we really should be thinking about how do we have any common ground anymore? Is the only common ground going to be
we hate Trump and that's how we move forward? I mean, that's almost seems like where we are. Okay. By the way, my favorite one of my favorite quotes about the Civil Wars from Churchill who said the Civil War was the last war fought between gentlemen, which I think is good. Yeah, and when he had in mind those surrender ceremonies that he referenced anyway, I can't read them without crying. You know, they're so moving. So
we'll take a quick break. I want to get off that topic, but I do want to ask you guys two questions about some some things that came down and believe it was just yesterday. First of all, Letitia James, Attorney General in New York. You know, don't do it. I won't do it. Is asking for summary judgment against Donald Trump. Were you aware
of that? Did you see that article. So she's asking that that the you know, the whole thing about that he committed fraud by overvaluing his assets to the bank so that he could get loans, and the harm and done on this was so great that she's asking the court to the judge to issue summary judgment against Trump. I'm going to try to remember, so two hundred and fifty million dollars fine. He can never do business in New York for a length of time I want to say X number of years. I forget.
Neither of the Trump boys can do business, nor can they serve on any New York based corporations boards. She's asking for summary judgment. Seems crazy to me, But what do I know? Yeh oh, well, just like it's just summary judgment just as a legal thing, which means you think the cases so obviously don't even really need to have a trial on the facts, which, given the claims here, seems just so ridiculous. So that's
one. And then second, gosh, even if the facts are true, Latica Change sure is giving the Trump's a good Eighth Amendment claim to Channel Channel challenge the whole thing on excessive fines and punishments claus to borrow all people from doing business in a state and two hundred and fifty million dollars in damages for what is allegedly, uh, you know, bookkeeping shenanigans. That seems which And then never anywhere does she allege any actual harm. She says the taxpayers
were harmed. But I'm not sure how she would even make that argument, because I mean, the people who are harmed are the banks, right right, and they're not bringing one place and they should be the banks. Yeah, so that was the thing. When the thing too on, I promise will be over. I just wondered if you saw that Raffinsburger testified Mark Meadows. You know, one of the co conspirators in the Georgia state trial, is alleging that it should be moved. The trial needs to be moved to
federal courts, because this, of course is not a state issue. I don't understand all those arguments. I'm sure you do, John, But in the course of arguing this, he brought in Brad Raffensburger, who actually, what would you say? He affirmed Trump's version of the infamous phone call where Trump was not asking Raffensburger to find eleven thousand plus votes. He was asking it was part of a whole settlement thing, and that you know, the
whole legal thing is is No, this was perfectly appropriate. It was a part of a longer situation that was going on. Whether Trump was right to ask that is not, you know, factually correct about the situation. But Raffensburger has come out and said no, Trump's call was perfectly legitimate, perfectly legally legitimate. Does that do anything to the entire conspiracy theory in your opinion?
Or can they still sort of get Trump on the fact that maybe an election worker said something that they weren't supposed to say to somebody, insulted somebody. I know that that's one of the supposed I don't know anyways, correct my memory, But does this sound like Raefnsburger has completely changed his position because
wasn't he taping the call? And then didn he come out making the claim that Trump was coercing him to find eleven thousand votes and that this was not I mean an innocent call where he was just complaining or saying they had evidence of lots more so they you know, one hundred thousand. I'm not sure that he actually did that. I think that that was the way the Washington Post spun it. I don't think Raevensburger was ever actually on that position.
I don't think he's been terribly vocal about it one way or the other. But now he's under run. But then why did he tape the call in the first place and release it to them unless you wanted to show you were right. If if his account is correct, then he should never have made this public in the first place. You know, I'm sure candidates complain all the time to Secretary of States about this or that, but putting that aside, this removal things also goes to this earlier question. In a way,
the same principles are at stake is with the disqualification issue. The reason that removal provision removal just means moving from state court to federal court thereas and that's in there is because we have concerns if state officials start prosecuting federal officials because they don't like the policies of the federal government. You could see this have
been, of course, a big concern before the Civil War. Remember you of the nullification crisis, where South Carolina was essentially trying to stop the right the implementation of a federal tariff. So you could see in the year since that as a federal government, you'd be very concerned about the states using their legal systems to try to block federal policies and so, but this is a this whole thing is a concession to federalism because it doesn't end the lawsuit.
All of says is the you know, Fanny Willis can still bring her charges, she can still conduct the prosecution, she just has to do it before
a federal judge rather than before a state judge. So I say it's actually this removable provision is a compromise, doesn't try to create immunity, which is what Mark Mute Meadows is probably going to claim for the official So I think the way the Raffisberger thing ties in sorry for getting into legal weeds here is for Trump and Meadows, I think to win in the removal and ultimately win in the case, they want to show that what they were doing in Georgia
was not about being a candidate for office. If he's a candidate for office, then he's theoretically a private citizen, and if he's a private cistan, he has no right to remove the case they'll ultimately have no claim of immunity. But Trump and Meadows are going to claim I think that they were not acting as Trump the candidate. They were acting as Trump the president, who has a legal and constitutional obligation to make sure federal laws carried out in federal
law prohibits fraud in an election. It's almost as if Trump in a sense, what they're going to argue, it's as if Trump were in a second term and he wasn't even on the ballot. He's just trying to make sure that the election was carried out properly. If that's true, then he will be able to remove it, I think, and he might actually have a plausible claim for immunity from prosecution by the States because they were carrying out, you know, legitimate federal function. But that's, you know, that's the
key, that's the key thing on which this whole thing turns. I don't remember exactly all of the details from back then, John, but I do recall that there was a lot of interpretation of what that call meant. And I don't know how often the entire phone call, the entire recording of the phone call, was actually played. It was cherry picked and it was cherry picked by the media to make it look as bad as possible. I don't know if that excuses anything, but I just thought i'd point that out.
Even Turley says that, you know, Don'tthan's coming out and saying, look, there's nothing wrong with the call. If you listen to the whole call, it's a perfectly legitimate thing. It might have been ill advised, but it was not illegal. It was not. This is why no crime involved. Yeah, this is why Fanny Willis needs to make this outrageous charge at the whole campaign is a criminal conspiracy, because if you look at what if you took that away and you had and she had to charge Trump on individual
crimes, it's hard. It's hard to prove them. This is one. This is one of the central claims in her and I guess that was my question at the beginning. If this, if this claim is debunked, what's left. Well, they're still going to say and she's still going to say he's part of He's the leader, right, he's the dawn of this huge conspiracy. I know, But but doesn't there at least have to be a crime, even if it really is a you know, somebody Jay walked and
you can. Yeah. I mean she's going to say, oh, well, you know, the appointment of these alternate electors was uh, then it
gets almost silly forgery plus impersonating a state officer. You know, that's really that's why she has That's why in the end, I think this, I think it's an outrageous claim, but the claim of the election campaign being a huge conspiracy is critical for her because when you look at the little pieces, they start to fall apart, and so she needs to be able to sort of aggregate all these little things in order to build up to some kind of
big conspiracy. I see what. You know, that totally makes sense when you're going after an organized crime group where there is you know, Michael Corleone who's just giving instructions to underlings who then carry them out. So it's hard to ever show the head of the crime family actually did anything. But to say a campaign is like that, you know, that's a you know, I think that's a serious problem under the First Amendment, among other things,
not to mention the political problems. Okay, so that we don't go on with this forever, and Steve will start yelling at me, you know, because he likes to do that. I'm going to segue into another area where the Left is using what I would call illegitimate means to affect their their political preferences, their policy preferences, and that's in the Supreme Court, in this
whole silly nonsense about ethics. So before we get to John on this one, the even Republicans in the Senate are starting to say things like, well, maybe they need on the Supreme Court some kind of ethics rules, buying into the stupid argument that only the Supreme Court isn't required to bide by ethic rules, ethics rules, all the other federal branches of government. Everybody has to blah blah blah. But of course, you know, nobody's going after
Kay again, nobody's going after any of the liberal justices. They're going after Clarence Thomas, primarily, of course, because Clarence Thomas is the most successful powerful voice for conservatism on the Court. And he's, of course even worse than that. He's everything the left despises. He's not a you know, he's not an obsequious black person screaming about critical race theory. He's instead standing up for the rule of law and the principles of the American Founding, et
cetera. So they hate him. They hate him, and he isn't, you know, it wasn't born to a rich family with long ties to the Mayflower. He's you know, definitely from a poor man, poor family in the segregated South. He's everything they despise because he doesn't do what they want him to do. So tell me why you think about that, John, What about this whole fight against Clarence Thomas and what's your role in it?
So you might have seen that, I think about one hundred and twenty is it now, of Justice Thomas's former clerks of which I'm of whom which I'm one, signed this group letter defending his judicial ethics. You have addition, I think three federal Pellet judges on the letter, and you know, just a lot of people who've are very distinguished in the law and politics saying that they don't think Justice Thomas did anything wrong and that his judicial ethics were fine.
He also just released his lawyer has just released a comprehensive report about all of these claims, and by places like Pro Publica and Senator White House and AOC you know, attacking him, saying that he was in full compliance with
the reporting rules for the Judicial Ethics. So gosh, it sees to me, of course that this is going on, as you point out lucretia, because we're really living now under the Thomas Court, I think, much more than it's the Roberts Court, and and in fact, I think it is scarier to the left than Scalia or bork I mean, this is what we've argued about before, is because I think Thomas has a more robust view of
originalism that's tied to natural law. And so I think that you didn't see this, for example, with Justice Scalia, because I think the left weren't as afraid of a sort of neutral value free originalism. But I think they're really worried about the idea of an originalism tied to natural law principles. You know, Steve and I are teaching a class on constitutional interpretation, and you know we were talking about these differences, and we're going to talk about it
more in our next next class sessions. But if you were conservative, essentially what they should. But I think the left is really worried about is someone like Jorkin, someone who thinks it's okay to interpret the Constitution and put in liberal values. Right, this was a defensive rows. Basically, let's take John Rawls and import them into the Constitution. But what happens if you have a conservative majority and they want to use the Constitution to import conservative values.
I think this is this explains the freak out on the part of the left. But they're doing it. Here's my last point about this as interesting is they're not really putting up much of a fight on the court themselves. I find the progressive left on the Supreme Court in the lower courts still still searching for some kind of ideology to replace the warrant court activism they loved so well. And so you don't see, to me anyway really persuasive resistance or criticism
in the descents on the court. So they've gone in this kind of jiu jitsu move to try to make it all about personal ethics rather than on the merits. Even want to get your opinion. I just want to make a quick comment that that probably has as much to do with our affirmative action appointments onto the left wing of the course as it does with failing to find any kind of ideological underbearings that they could bring to bear if you get my point.
In other words, only Kagan's even capable of that kind of sustained ideological comeback, shall we call it. The other two are incapable. They're just hacks. Go ahead, and one more point about that. And so what's interesting when you read their opinions. Kagan's opinions are really kind of like, well, you guys aren't really being true to value free conservative originalism or textualism. There's no you know, it's just sort of like there's no here's the
alternative, right, There's there's none of that. And that's why that's why I find their opinions disappointing. Yeah, I think the bad faith in the lap on the whole business can be summarized in and two nominees and one senator, And that senator was Joe Biden. So in the Bork confirmation hearings where he led the opposition after saying that Reagan sent up Bork, he'd have to vote for him, and then he changed his tune after the left got after
him. He made an argument against Bork that essentially reduced to you don't believe in natural law? Do you judge Burke? Which was accurate. Then Clarence Thomas came up and Biden did a one eighty and said, you believe in natural law, we can't have that, although he did write this article which you can find in the Washington Post before the hearings began, where Biden maybe we got to find this for class. Biden tried to lay out, well,
we'll take this up. There's good natural law and there's bad natural law. You know, good natural law was you know, find discovering rights under the ninth Amendment maybe for you know, good marriage or so that team later, but whereas you know, you believe in property rights. I think you might remember Biden opened the hearing by waving around Richard Epstein's book Takings, which was then the big sensation, and essentially asking Thomas, are you now or
have you ever been a reader of this book. It was unbelievable. But you can see it's trying to have it both ways, you know. So there you go. The point is is that one of many points is to summarize what you just said, John, is they don't have a foundation anymore for their jurisprudence. They have the results they want their policy making judges and
the you know, our team. So to speak, has been as sailing that for decades now, and it's finally reaching some results and laying out some doctrines, and they don't know what to do because they don't really have any of their wrong and I would make one. So I always, you guys will recall I always give Steve a very hard time for his optimism because when he talks about conservative victories, this is why and it's not. I mean,
he's right in a sense. He'll say, oh, but this happened in nineteen ninety blah blah blah blah blah, and it was a victory for the conservative side. Of my argument back is it's always on the part of the left, three steps forward and if we're lucky, a half a step back for conservatives when they take a stand and you know, try to do something. What's different about Clarence Thomas. We saw it in his concurring opinion
in the Dobs case. We saw it even in his concurring opinion in the Harvard case, is that he is willing to look at some of these things and say, not only are we just going to say stop, You're not going to go forward anymore with this inventing of rights, from the Ninth Amendment
and the emanations and conumbers and all of that. But we're going to actually go back and look at some of these other decisions at the courts have made in the past and not necessarily overturned the outcome, but ground them in the appropriate constitutional principle, the appropriate constitutional principle informed by natural law as our founders
understood it. That I think scares them much more, like you say, than something like the originalism of Scalia, because you know, part of that originalism by Scalia also had great respect for precedent, all of the you know that's a conservative value. Sorry for the use of that word, but to respect precedent because that, of course you knew, gives the integrity and the kind of authority to the court except all those things, et cetera. Thomas
is willing to say no to that nonsense. And the Court's been wrong so many times, not necessarily. How the outcome of a case Brown plus not plus excuse me, a Loving versus Virginia. I don't think he includes that because it's not a due process case some of the others. But let's look at this and say, you know, the court aired, and let's reground
our jurisprudence on something solid. And you know that's scary because that doesn't that's not the argument between say we'll put our opinions into the constitution, our ideology into the constitution. When we're empower and we'll put our ideology into the constitution, we're empower one side versus the other. This is no, let's let's return to what the Constitution really means and stop talking about this from an ideal, logical, hackery point of view. That's my opinion. Sorry I got
off on a tangent. But do you think that's true about Thomas John Well? I think you actually see the results now. So just some examples. You know, he's the only one on the Dobbs Court who was around for Casey, so for thirty years he was, you know, saying Roe versus
Wade ought to be overturned. And then the Bruin case from last year, the Second Amendment case, he was the one who ten fifteen years ago was saying, what even though we've said that there's an industry right to bear arms, we treat it like a second class right and we need to re examine that and we need and then Bruin says we need to look at the kind of firearm regulations that existed at the time in seventeen ninety one or eighteen sixty
eight to measure the ones of today. And then of course affirmative action. He's been in the descent for a long time on a lot of these issues
on originalist ground. In fact, the affirmative action case, you guys are like the best because his first his first opinion about it, I think, was a case where I was in a term I click called a case was called Aderrand, which banned use surveys from government contracts, and he quoted the Declaration of Independence, not for rhetorical purposes, but actually as a source of law on a par with the Constitution. And I think he's the first justice
maybe still the only justice who's ever done that. And so you could see he's got the long game in mind, and he's consistent about identifying these principles from the first, you know, first things, and he sticks to him. And the thing I think that really triggers these attackses he's you know, he's sort of he's been victorious now these last two years on it, when people might have thought in the beginning, well, no one's ever going to
do that, and the Court's never going to take that position. But now after thirty years, they are, Yeah, I mean remember that. You know, Stephen Douglas told Lincoln declaration and it has no legal force, and Lincoln's response was, well, I notice the declaration is at the beginning of the federal statute books. If it has no meaning, then we should tear it out, shouldn't we. So Thomas has taken that point. So it's still in our federal statute books, right, So it's has to have some
legal meaning of some kind if we're going to include in statute books. It seems to this simple minded person, Steve's giving me the evil eye, even though I have way more subjects that I wanted to get to. Fortunately for all of you, I will leave aside Lucretia's favorite subject, how the Pentagon is going to have a new website releasing UFO Information of God, and and
we'll have to leave for next time our discussion of our favorite book. But it's going to be if we're going to discuss our favorite nonfiction books, we're going to start with ec Era. Okay, get prepared for that. In the meantime, Steve has Steve wants to tell us a little bit about his hypo hypo hype theoretical. Oh I already did that with the I know, but tell us why? Oh yeah, well that was the latest utterance of the Jean Jean Pierre, Paul Claude Sard whatever we call her, right,
the person the person you call mamba. You're right, she said the other day in responsible question, I don't get into hype theoreticals. I thought that's a George W. Bush Worthy malapropism. You know, up there was strategicy. So I just enjoyed it. You know, it's uh you expect that from Kamela Harris. You know that's uh so yeah. And so, speaking of Kamela Harris, do you have one for us? I do. It's a very short one, but I do. I do like it. So
this is from a few weeks ago. Kamala Harris was leading a I mean, you can't already tell what's gonna know, they're gonna be problems. She's leading a round table with labor and civil rights leaders to talk about new technology, and so she was addressing artificial intelligence. Quote. I think the first part of this issue that should be articulated is AI is kind of a fancy thing. First of all, it's two letters. It means artificial intelligence.
But ultimately what it is is it's about machine learning. I will spare you her this position then on what machine learning is. But it's well worth reading, or maybe it's not. Yeah, today I will tell us according to her, thank you. Oh, I don't even know what to say to that. So I'm minute. I'm going to bring up just a couple of Babylon bees that are very timely inappropriate for our podcast today. The first one, Mitch McConnell links twice to signal his resignation. You know it's bad,
it's bad. And then the last one, because I go on too long with these, not that they're not good, retired doctor Fauci, otherwise known as mister Science. To you people called out of retirement for one last mask man, Nate, Well, that's not that could be true in a bit, and careful. Most of them do come true, Steve, Yeah, that's rights the problem. Most of them do come true. Uh, John, do you want to send us out? Yeah? Sure, so always
drink your whiskey meat. Let's go, Brandon and Steve, God save the Queen Man. Thanks you guys, seeing it all right. Ricochet joined the conversation