Welcome once again to another episode of The Oath and the Office. I am John people sang, and right now we are witnessing a series of extraordinary clashes over the rule of law, the separation of powers, fundamental democratic norms, and from what's being described as an extortion demand over infrastructure to full on attacks on press freedom in Jersey and New York. A federal judge just blocked an effort to shut down the Gateway Tunnel for a president's vanity.
The DOJ executed a search warrant at the home of a Washington Post reporter. What did these events say about the health of American constitutional democracy? I have no idea. I'm a dopey comedian. That's why I lean on the star of our show, best selling author and professor, Corey Bretschneiter. Corey, it's good to see you, Welcome back.
It's always a pleasure, John.
And as horrible as things get, I look forward to this conversation every week.
It gives me hope.
And speaking of hope, we're gonna have after our discussion, a discussion with pre Berrara.
His podcast is called Stay Tuned.
I hope you'll stay tuned for that and uh, you know, it's an in depth conversation that we'll have with him about questions of integrity in the midst of such destruction.
And so let's get to the destruction.
Let's do it.
You and pre Ferrara one on one is that's like, that's like pouring for the angels, Sir. That is just a brilliant conversation.
But I Woanta, I want to before we get to there, quote from like somebody famous or you just no.
I just that's something I made up.
But let's before you get to your exalted conversation with pret Burrara, come down to the mud with me for
a bit, Professor. Let's beget this because these current headlines about the temporary restraining order to stop the shutdown of the Gateway Tunnel project, which affects millions between New Jersey and New York City in essence blocking a political move to coerce state and local consent, I mean, Donald Trump essentially came out and said, I will release the funds for this critical infrastructure project if you name Penn Station
and Dulles Airport after me. Now, Corey, we discussed this on serious XM already, but traditionally what you do is if you want to have buildings named after you, you do good things for people, and then later they name buildings after you to honor you for the good things you did for them. This president's doing it differently. He is trying to blackmail people into naming things after him that are already named and saying he will hurt them and not let the projects be built and waste billions if
he doesn't get what he wants. I mean, is this a form of extortion that crosses legal lines or is this just really a pathetic, narcissistic version of political brinksmanship.
Well, I think you know it is narcissism. And this is a person who wants to put his imprint. He put it on buildings in New York City, and now he wants it on a public monument in New York City or train station. He wants it on airports. He really wants to brand the name Trump. We would put it on the Lincoln Memorial if we let him. He wants to put that brand on our entire country and what.
That stands for.
It's a symbol, I think, if nothing else, of the destruction of democracy into a kind of kleptocracy of regime of theft, and you know, thankfully he can't be indicted for extortion likely that you know, there's a question anyway about whether this is part of his official duty, but a good chance courts would say it is, and as part of his official duty, it's protected. That's the horror of the immunity case. That's part of why we're talking
all of this. You know, I wish I could say, yeah, in Dietem he committed a crime, but there are other ways to go at him. And what's happening is that this project in New York and New Jersey is pushing back saying that this is a breach of contract. You can't just agree to a plan in which there's expense sharing, have an entire contractual arrangement, and then up end it
with an extortion demand. So I think there is a realistic possibility, very strong possibility, that if Trump tries to stop this project, he's not going to get his name on the building. That's clearly not happening. But I think
he also won't be able to stop the funding. And so yes, ideally he'd be indicted for something like this all sorts of things, one of many things, but realistically what's going to happen, I think is that courts will slow him down and stop him from succeeding in this attempt to brand all of us with his name.
I mean, from a constitutional governance grown up standpoint Corey, how dangerous is it when a federal authority is wielded in such a seemingly personal and dare I say petulant way? I mean major infrastructure a funded in part with federal dollars relied upon by millions. It affects the economy when that becomes leverage for a personal conflict, not even about policy. I mean, what does that mean for the rule of law? Is there any legal precedent against this kind of tactic?
Wow?
You know, I would say, just to go back to the beginning, like, isn't this extortion that sure looks like it to me? And isn't that criminal trying to basically use public money in order to get your demands? I mean, it's mafioso in its characterization. And the thing that's really unprecedented is the Supreme Court's decision that the President of
the United States has all sorts of immunity. Again, it's limited that we've talked to Sheldon White House about waste through legislation to coordinate off to define official duty very narrowly. But the bottom line is, what's unprecedented is not prosecuting somebody for extortion, the idea.
That we're all under the law.
So now we've got to find other more creative ways of fighting back. And that's the reality of this regime that we haven't face all unprecedented. A president of the United States, this naked and this aggression. We've seen other presidents act out in different ways, but this kind of raw extortion. We saw it from a vice president, that kind of corruption spureau agnum, But from a president in the open doing this, I think that really is different from what we've seen before.
I want to turn it now to another report that the DOJ executed a search of a Washington Post reporter's home, professor and filed a bar complaint related to coverage. Alarm bells have been going off in all the hot First Amendment circles on this. Jeff Bezos, of course, has had no comment about a reporter's home being searched, and this is a reporter who people leak to. How do you view this in light of constitutional protections for the press.
It seems like this is done to intimidate other journalists more than to punish one.
You know, I think our first story, John is important symbolically. It's about a president trying to put his name on our building and to destroy democracy in a sort of symbolic way. But when I think about this story, if I had to pick one thing that defines whether or not we're in a dictatorship or a democracy, it's whether or not the dictator can imprison those and investigate those who are doing.
Things that displeases him. And you know, you like to think that.
In America, of course, we have a First Amendment, not just a guarantee of the freedom of press, but a guarantee of free speech more generally. And you know, in the hot First Amendment circles, which I include the Supreme Court in that circle, and all those of us who care about the rule of law, not Donald Trump and his cronies, that's not even a hard thing to talk about.
And we don't just have, thankfully, the First Amendment. There is legislation protecting journalists from being prosecuted for their work. And yet all of that, all of those laws, it's not just norms. We're going to talk later about the DJ and norms. These aren't norms. There's legislation, there's the constitution. Are just being blown through, and they're trying to essentially investigate, maybe charge journalists for doing their job under the grounds
that they're committing espionage. Just to get into it. This is about an investigation into the kind of pressure on Meiduro, what was happening in Venezuela. This isn't sideline stuff. It's the heartbeat of the questions facing us right now as a democrat. And if you can't have investigations here, then in what way do we have a democracy? It's why the collapse into dictatorship. Are we collapsing? Have we collapsed?
That is a very real question right now, and this example is one of the best for showing that.
I mean, can you just explain what are the legal limits that the DOJ is supposed to observe before they target a journalist or their communications. I mean, is there some kind of constitutional threshold here that has to be met to justify going into this lady's house and taking her laptops and phone.
Well, you know, there is a clear answer about that. When the preperraras of the World when he was US Attorney for the Southern District of New York, when he was working at the Department of Justice.
We've had Glenn Kirshner on the show now twice.
When he was at the Department of Justice, there was a rule that had to be followed internally, which was essentially was, don't prosecute journalists for doing their job. If a journalist kills somebody or commits murder, fine, but not for journalists. And you can guess what's happened to that rule under the Trump administration. Pambondi has not just gotten rid of it, but just.
Blown past it.
And you know, there are laws about espionage, for instance, that traditionally just don't apply to journalists, and there's legislation to protect against that. But when you're Pambondi and you're doing the bidding of a president of trying to shut down democracy by shutting down descent and shutting it down the information flow that the press needs to give us to make decisions as citizens, again that's as important as voting.
The lines are blown past and all of these norms that protected us, all this law that protected us, seem to be a minimum eroding now it's not over. I think that the judiciary here, it's such a line that's been.
Crossed, they'll push back.
But there is a chilling effect and that's part of the danger here, that the press is being shut down by the president, even if he doesn't succeed in a prosecution imprisoning this journalist, there's fear and that's.
It seems like this is directly connected in a way to the Gateway tunnel story with infrastructure.
It's all about intimidation.
Yes, it's all about this government trying to use fear to get its own way.
It's not really about policy.
I mean, there are people who are defending this search of a reporter's home saying that, you know, it's law enforcement acting within their boundaries. But what happens when a DOJ does things that have the effect of chilling reporting, especially on matters of public interest. It seems like, again, this is why they went after Don Lemon and those four journalists and for covering the protest and the Saint Paul church. They know Don Lemon and the black journalists
didn't break the law. They're trying to scare other journalists.
Yeah, and John, I think that's such an important point that a lot of times. And I think when you and I started talking about all this in twenty sixteen, when Trump was running, when even early in his first term, and you know, Preperr is an example of this, you know, fighting back, refusing to resign, getting fired. The norms were so wrong that we thought he's not going to succeed. And now we're in a different world, which is that the question isn't whether or not people are going to prison,
whether or not these prosecutions are successful. It's whether or not he can intimidate us into being quiet. And now you and I are talking every week. I don't anticipate us stopping that. There are lots of others speaking out, but there are a lot of journalists, I think, who are being targeted who must think to themselves, I'm not sure I wouldn't go through with this. Now it's a
different story. But if you add in Jeff Bezos's evisceration of the Washington Post and how hard it is to keep your job in journalism, you know it might succeed in having that chilling effect and that idea of the chilling effect, and just to say what that means, it means, you know, apart from the hard power of putting people in prison, scaring people into thinking they might be investigated or prosecuted. That's equally detrimental to the First Amendment.
We've got.
It's not just a chilling effect, it's a storm, an ice storm of the chilling effect of free speech.
To shut down of free speech, we.
Got to take a quick break.
But when we come back, the least didictable members of the resistance to stare down subpoenas by Congress, Bill and Hillary Clinton in twenty twenty six will be back in a moment.
This is the oath and the Office.
Here's what you've been missing on the Stephanie Miller Happy Hour podcast.
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It's just such a whiner, just again, whining point USA all they do and again it's Putin's just lie. Hold on, I'm calling Putin for advice like keep them lying, just keep lying.
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Subscribe to the Stephanie Miller Happy Hour podcast on Apple Podcasts, Stephanie Miller dot com, or wherever you get your favorite podcasts.
Welcome back to the Oath and the Office. I'm John Peeble saying, along with Professor Reretschneider Corey, I want to talk to you about the Clinton subpoena dynamics we've witnessed this week. This has been a really fascinating story and wow, it's been a long time since I found myself standing up and rooting for both of the Clinton's at the same time. But we've seen these reports that Hillary Clinton is pushing for a public hearing ahead of this deposition
related to the Epstein files. Bill Clinton did quite a hell of a Twitter threat about how he will not be a prop for these people. And there's a broader fight going on here over congressional oversight tools. They seem to have really embarrassed James Comer, and a lot of people are wondering what, why are they doing this? I mean, no presidents testified before Congress since Gerald Ford, like forty
years ago. How would you assess the legal and constitutional contours of this battle with the acknowledgment that this is all a distraction from the fact that Trump and panbody have been protecting child rape illegally breaking the law every day since December nineteenth.
Yeah, I think that's the most important place to begin, Like, why were we even talking about this. It's because Trump is trying to cast off any guilt and implication that he might have in the Epstein evils. I think we can call it based on what we know at this point and put it on one of his opponents. Again,
that's the common theme, Hillary Clinton and also increasingly Bill Clinton. Now, they would be well within their rights and I think they would win to simply fight and court the subpoena, because there are rules and principles of law that govern when Congress can force people to testify and when it can, and that is what a subpoena is. It's compelled testimony, and the question is whether or not there's some legislative
purpose here. Now, if Congress was considering, you know, legislation to correct the evil of Epstein, to look into the wrongdoing of these networks and to break them up, then I think, okay, there's a legislative purpose.
But what's the purpose here? If the purpose is.
To deflect from the guilt and attention on the President of the United States and Pam Bondi and covering up again evil, that's not a legitimate purpose.
So they could fight back. So why are they not?
I think because they know they could win in court, and I think again they would, but they seem to be and I'm willing to praise them for this, demanding more and more transparency. Want transparency, will give it to you. And Bill Clinton is indicating that he knows something that's going to educate America about all right. You know, I think he could just tell us. That would be one way to do it. Ready to do it in this dramatic fashion by facing off against House Republicans.
More power to them, let's see it.
I was at the DNC two summers ago, and of course Bill Clinton was the guy who went off script for twenty minutes, just went off the telepropter. He does know how to high jack something, and we forget what an incredibly compelling orator he is. But yeah, I mean, this is the smartest pr I have seen Bill Clinton do in many many years, that that he urgently wants to come out and do it. Now, You're right, he could just get himself booked on any TV show. Hey, Bill,
serious exp progress. I'm here baby, waiting for you.
How about the in the Office pot in the Office podcast? Bill?
Come on, I mean, I live near Harlem. We're all practically neighbors. But oversight via subpoena power is supposed to be whe of Congress's core constitutional authorities. I've learned that from you, and we learned that when the Republicans just loved ignoring their subpoenas because they don't have to. But what happens to the balance of power when subpoenas are ignored or or contested at the executive level.
Well, I think it's a balance.
You know, during the compulsion to testify of people in the Trump administration the aftermath, I thought that, you know, there was a serious legislative purpose to compelling some of this testimony. Of course, Bannon refused to testify in and went to prison for it. But you know, I think the balances we have to remember there are moments in history where Congress has abused its investigative power. So it's not as simple as if you're brought to testify, then yes,
you should have to do it. So I think of the red Scare of the House on American Affairs Committee, for instance, which is all about attacking those on the left, communists but also progressives and people who were to the left of center. And were those subpoenas legitimate, No, absolutely they were not, and so they were an attempt to use the tools of government in order to shut down opinion.
And I think here too, it's more complicated. It's not just that it's an attempt to deflect from the responsibility of the President of Trump and it's not a legitimate purpose. So yeah, I think they would be within their legal right to fight back.
But again, you know, they're savvy politicians. They can defend themselves.
They're not in a position where they're going to look bad in front of this committee. And my bet is on them that they are going to bring out some truths that we haven't seen before, and in the process humiliate their political opponents.
I think you're right, and oh, I'm buying popcorn.
I think for that very reason, we'll see James Comer demure from this when he realizes that humiliating the Clintons won't get him some table scraps from mister Trump.
I want to ask about this, this.
Article you sent me in the New York Times that blows my mind about the DOJ trying to recruit prosecutors. The reports say that they're recruiting prosecutors with a strong view of federal enforcement. What does that mean? Well, in this case, it seems to mean that they align with the political priorities of this current lawbreaking administration. In other words, they're having a hard time hiring prosecutors to do their dirty work for them. This is fascinating from a constitutional perspective.
From an institutional perspective, I mean, what are the risk of recruitment strategies like this. We don't want you to be loyal to the law. We want you to be loyal to the game show host running the government.
Well, I just think what a topic and what a lead in This is the in depth interview that pre Perrara. I'm going to certainly ask him about this and talk to him about it, but as an initial way in, let me just say this. You know, the Department of Justice used to be a highly prestigious position. One of the most impressive things that you could do out of law school or really any point in your law career would be to go and to work in one of
the divisions of the Department of Justice. The Department of Justice, by the way, founded during the Grant administration to protect civil rights, to enforce the Ku Klux Klan Act and shut down the white supremacy that was left in this country in the aftermath of the Civil War.
What a proud history.
And I think for so much of its history, the Department of Justice did amazing work, even during the Nixon administration. Archibald Cox who went after the President for his crimes, exposing him, working with the Grand Jury that uncovered so much of the crimes of Watergate, later handing it all over to Congress and a failure to indict the president. Yes, but still a proud moment. Leon Jaworski who continued that fight the aftermath of Nixon.
All of this, what I'm summarizing.
Is this is a prestigious proud part of our government for so long, and now it is the opposite. It is the tool, the weapon of this president. And guess what, people don't want to go work there. So what does that mean. It means really the hollowing out of this institution and the use of it to go after political opponents. Here's one silver lining that I'm going to ask pretty about.
Maybe their incompetence helps at least in some of these cases, because you know, with better lawyers, maybe they would succeed in going after some of their opponents.
Exactly.
I mean, you're right, and that is why we know that they're kind of doomed to failure. This whole thing of deliberately hiring unqualified flunkies. I mean, Pete, hegseeth cash, but tell cash, but tell like he's hiring these people because they're not going to say no, mister President, that's illegal. He's hiring them because they're obediently unkies who are easily disposable.
And if, say in the case of Christy Nome, things ever get too hot or unpleasant for Trump, you just land them like a boil and they take all the blame. The flunkies don't seem to realize, professor, that this Supreme Court immunity doesn't apply to them. But beyond that, it just seems like this is going to wreck this whole partisanship in recruiting prosecutors. This is going to destroy public trust in America's Department of Justice as a neutral law
enforcement body. I mean, at some point, perception is going to be a serious problem for the rule of law in this country when everyone knows you can't take the rule of law seriously.
Yeah, as they destroy they I mean, Trump and his cronies destroy our institutions, including the Department of Justice, and they are pretty close to having destroyed it. It's not going to be so easy that if we defeat them to just put it back. We really are going to have to rebuild these institutions one by one, and that includes the Department of Justice. I love your reference to our slogan from last week, which is that Trump has immunity,
you don't. I had a lot of comments from listeners who love that, and we should make t shirts at some point. But that's part of the reminder, you know, and not just that you might be charged with a crime if you're Pambondi. And it looks like some of what she did is not just unethical but possibly criminal or Pete Hagseth. But you know, for lawyers there's a
question of disbarment. And so that's one thing that I'll continue in the conversation with Preed that you know, you might get away with it now, but eventually we're going to find out and you might lose your license. And if you value being a lawyer or a short term moment in the Department of Justice, it might not be worth it for you. But that's not how these people are calculating it often.
But when you consider how they chase down the honest, hard working prosecutors who went after the terrorists who attacked our government and our election on January sixth, I mean, I don't think it would be punitive for the Democrats.
To have a purge.
Of the purge, a lot of people are going to get invited to have their jobs back when the Nuremberg trials were all praying for finally happened. But I mean, are there any structural safeguards Corey and the DOJ in just basic norms that protect against partisan staffing decisions, or are those safeguards eroded and they can just hire twenty five cash hotels if they want.
You know, there was a lot of discussion, especially after Nixon, about the need for norms, and I think there were norms of independence, and we'll talk about that in the interview with pre Ways, in which they're really the president wasn't even allowed to call somebody to talk to prosecutors on the phone, that that was seen as so outrageous that it was itself a norm violation. Forget about what was said, even to talk to each other. And that shows you it's a symbol of this kind of independence.
The Department of Justice is not supposed to be the president's lawyer. They're supposed to be the people's lawyers defending our laws. And how badly have those norms eroded. My takeaway, and we've talked about this before, but I don't think we could talk about it enough, is that it's not
enough to have norms. When we think about how to recover this Department of Justice, that we have to create another independent prosecutor who can't be fired by a president, who can look into the wrongdoing of a president.
And yes, through legislation, if.
We were to bring this back, we would need a new law to do this. It was in existence the independent prosecutor between Carter and Clinton. Clinton got rid of it because he didn't like being investigated by Ken Starr.
If we bring it back, we should give protection from.
Firing to allow that independence of investigation of even the president.
And we should give and.
This relates to what we were talking about before, the ability to even indict a sitting president, and that means narrowing community case.
Okay, but you say, you know, if we get it back, I mean, what would it take to restore it? The Justice Department's independence has been compromised. I mean what would it take to restore it with a president who's not capable of wanting that? You know, like day one, you'd have to have someone who followed the Epstein Files law that was signed in December.
Yeah, you know, recoveries take time. It's not going to happen now. It's not going to happen before the mid terms. It might happen, you know, in a new Congress that's controlled by not the Republican Party but by Democrats. And just to say how it would happen, you know, the Department of Justice is structured by legislation, and right now there's not a lot of protection of the supposed norm of independence, and the norm is gone.
But you could rewrite the law.
You could rewrite it so that there is independence of the Department of Justice itself, of especially independent prosecutors.
That idea that did exist in.
This country was an idea after Watergate that we should bring back, and we've got to be creative about that.
But that's part of the hope.
You know, on this podcast, we're always talking about the destruction, but there's a way to respond to fix the problem through legislation, and that's what we're talking about.
And that's what I think will happen eventually. It will take time.
It's not going to happen, you know, in the next few months, certainly, will it happen in the next Congress.
Possibly. I think that's what we've got to get on the agenda. Part of what we're.
Doing is talking to people, educating them about what's happening, but we're also trying to set an agenda for recovery. And when we talk to Senator white House, for instance, you know, we were able to talk to him about the specifics of what this might look like, not just ask him questions and we'll continue to do that.
We have to take a quick break, but when we come back, it is happening. It is on Corey Bretschneider and pret Burrara. You don't want to miss this. This is the Oath in the Office.
Hey all, Glenn Kirshner here, So friends, I hope you'll join me on my audio podcast, Justice Matters. Do you care about ethics and government, criminal justice, reform, a conflict free federal judiciary?
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Welcome back to the Oath in the Office. I'm Corey Bretschneider. Today it's my pleasure to be joined by Prete Burra, the host of the podcast Stay Tuned with Preed. It was my pleasure to be on that podcast with Prete and to do a live event with him at the New York Historical Preed, of course, is the former US Attorney for the Southern District of New York. He's a former Justice Department official, and he also teaches at NYU Law School in addition to his law practice.
Pre I want to start with the DOJ.
You've been inside that institution at a very different time in our history. And while I should say first welcome.
And nice to be here, Corey, thanks for having.
Me, real pleasure to have you so as always saying, I mean, you've been inside the Department of Justice, but it was a very different Department of Justice when you were there. And I'm just hoping that we could start by orienting listeners and getting some of your thoughts about the difference between the DJ that you were a part of and what you're seeing right now.
So I was hired into the department as a young prosecutor in the Bush administration, and there was no litmus test for politics, and you weren't asked if you support the particular president, and you weren't asked who won the last election, and nobody asked you your party affiliation, your ideology, or anything else. And that is how it should be. And when I was US attorney for almost eight years,
appointed by Barack Obama, I was a political appointee. But all the assistant US attorneys we hired, the prosecutors and the civil lawyers we hired. We hired without any attention to or inquiry about their political affiliation, their party affiliation, or their ideology. What mattered was do they have good judgment, do they have good character? Do they practice their craft well?
And no doubt under Republican presidents the Democratic presidents, you know, many people are independent, but you know, hired into the ranks of the Justice Department were many people of opposing and different points of view, but that did not matter. Didn't matter. That seems to matter today. So that's point one,
and that's a terrible thing. Point two is, you know, we had a pretty full Justice Department, most US attorney's offices as well as the main office in Washington, you know, the what we call Main Justice, you know, other than on those occasions when there was a budget freeze or you know, hiring freeze or a government shutdown, operated at full capacity because you needed that to vindicate the rights of victims, to maintain public safety, and to do the
job of justice. We now have, as I was talking about on my own podcast just a couple of hours ago, a fleeing of massive numbers of line prosecutors, some of them being fired, some of them being relieved of their duties from US attorney's offices all around the country and from the Washington office in the district of Minnesota itself, which is the scene of a lot of you know, terrible things and government overreach. They've gone from an office of fifty I think, to twenty, which, if I'm doing
the math correctly, the sixty percent decrease. We used to fight for every single full time employee allocation in budget with our lives because it was so important everyone had a full docket. But more troubling than the lack of staff and the diminution of the ranks of prosecutors is why, right, you have people who were hired, you know, some of them many many years ago, served multiple administrations. We're screened not only for talent and craft and legal competency, but
also for character and integrity and ethics. Who are leaving because they think they're being asked to do things that are contrary to their oath and contrary to their conscience, and that's why they're leaving, and that's that's a terrible and heartbreaking thing. And the American so I can go, I could go on and on an onion.
I mean, what do you think of the on that theme.
And you know, one of the stories that we've been talking about is the coverage about how hard it is to even do recruitment in the Department of Justice now that it used to be.
It used to be the In fact, you never saw. I think people are tweeting about openings of the Justice Department there. I don't know if they're a billboard, but there used to be a billboard.
Like one eight hundred lawyer.
It was the most coveted I still like printages prestigious, most coveted jobs. I mean, people would leave highly lucrative private practice for the opportunity to serve at a government's wage in the Department of Justice, at various US Attorney's offices. You know, I recruited back people who took people who were in the office, and then I needed, you know, a leadership position filled and people will I mean, who
does this in life? People took ninety five percent pay cuts, people making two three four million dollars a year came back for one hundred and fifty thousand, right so they could serve the who leaves millions of dollars on the table for a job, you know, in the government. Some people do it, not not many people do.
I mean, do you think that you know, part of the story, of course, that we're talking about and that you're discussing is the increasing lack of competence in the DOJ, because if you're not able to recruit high quality people, you're.
Going to wind up with worse lawyering. I'm wondering how that plays out.
I mean, is one possibility that there's a I'm always looking for the hopeful story that in some ways, although there's a kind of destruction of the Department of Justice in its main functioning, that when it comes to some of the ambitions of Donald Trump to destroy democracy, I mean, does that in some ways protect us having more incompetent lawyers in the Department of Justice?
Is that too optimistic? That can still do damage and be incompetent.
Well, they can do both. They can do both in Garden. It still is the case, Corey that the garden variety cases that offices deal with are not about Donald Trump, not about Michael Flynn, They're not about Hunter Biden, They're not about Jeffrey Epstein, right, They're about you know, unnamed and and unfamous victims and perpetrators who are brought to justice every day in the various offices. So their lack
of resources is a problem. Their lack of competence is a problem, because the wheels of justice already, I think per many people grind slow, and they only grind more slowly. Now, with respect to those those certain politicized, weaponized cases, you were exactly you were exactly right. They may be an ethical, they may be you know, weaponizing, but they're also incompetent. And you saw that in New Jersey, and you saw that in Virginia, and you see that in a lot
of places. So I guess that's sort of a silver lining. You have people who don't even know how to present to a grand jury indicting a former FBI director. That's probably to everyone is benefit.
I want to ask you more about the weaponization the political prosecutions, but I have a follow up on the interesting theme that you're carving out, which is I want you to react to. There's a theory that law professors are increasingly embracing of a kind of dual regime, that there's a kind of lawlessness. The theory which goes back to a theory of fascism and various ideas of dictatorship.
That there's a theory that says, when it comes to the dictator, there's lawlessness, but you still might have a normal functioning rule of law state in relation to normal people.
But in a way I hear you saying maybe the.
Opposite, which is that you know, actually exactly where we want the rule of law to function, prosecutions of the bad guys, of those who have committed serious violent crimes, that maybe there we're lacking the kind of competence that we need even for the rule of law.
So I don't does it go too far to say that, really, I.
Think you look at some it's look, prosecutors do two things roughly right. And this is actually car doubt in law and order the first half hour and second etat right, and unlike law and order makes out where it's only the law enforcement agents who carry guns do the investigation. Prosecutors do the prosecuting and the trial work. I believe in the federal system they do. The prosecutors do both. And so if you have limited resources, what are the
things that you urgently have to deal with? You have to deal with already indicted cases of defendants who are already in the dock, right, So you've indicted a case, there's a suppression hearing in a week. The judge has ordered everyone to show up and to have here. You have to do that hearing, right, you have to have And so if both prosecutors on the case resigned the week before, you got to find a new prosecutor get
up to speed, right a way. You have to do that because as a court proceeding and humans have to show up and do the work. The things that are not on the same timetable are investigations. So let's say you have three prosecutors working with three FBI agents to root out corruption in the state capital of a state.
You know that deadline is just a statue of limitations, right, And so that might be the most important thing going on in the office, not the garden variety case that has a suppression hearing the following week, but chasing down witnesses before they destroy evidence, before they get rid of their ill gotten gains. But that's what's not going to get done because that's not what where you need humans necessarily, because it's not a suppression hearing that's been scheduled on
the docket. You know what I'm saying so so lots and lots of and people don't see it right away, but there's an opportunity cost when you pick one thing versus another thing. Yeah, and that's what you worry about.
Yeah, And of course the worry is that the incompetence of the DOJ isn't just short term, that even if we survive this Trump presidency, there might be long term damage, and the damage might go beyond the immediate political prosecutions to more general harm to the system of justice. I did want to pivot to ask you about the political prosecutions, of course, and I'm interested you mention in James Comy and Letitia James.
I mean, I'm interested in your thoughts.
They seem to me at least to be raw instances of political prosecutions by prosecutors who are choosing loyalty over So.
Yeah, it was my first question. Am I missing anything?
I mean, the more complicated case and maybe more interesting one to get into is the Bolton case. And you know, there is an argument that there it's more of at least a hybrid. Clearly there is an element of retaliation, but the argument is that there really were national security issues that he might have acted in a criminal way, and so I wonder I mean that to help us
puzzle through that. I mean, what do you do when there is some element of law breaking, but there also is this political motivation?
How do you analyze that case?
I mean, I'm interested, of course in your thoughts on Komy and James as well.
So sometimes it's hard to figure this out, particularly for your late person. It's also hard to figure out if you're not involved in the case and you have prosecuted experience, so you have certain ndisha whether something as kosher or not right. One indicator is whether or not And this is not a question that had to be asked before.
Did the President of the United States post on social media flatly his interest in sending it a prison, perhaps to the death penalty, which he's done with certain people, and pronounced you guilty. That's a marker that any prosecution that follows is bs and is weaponized. Second thing you can look at are the charging documents themselves. You read
it like if you read the Bolton indictment. And I've read a lot of indictments, and my name is affixed to hundreds of indictments that have been filed in court, it has a certain theft. There are certain things in there that you think, huh, I wonder how he's going to defend against this not pre judging is presumed innocent, and there may be defenses, and there may be. It's one side of the story, but it's quite a story of his sharing information with members of his family for
purposes of writing a book that are clearly classified. You know, I don't know how that's going to work out. But you read it and you don't think it's trash. Then you read the coffee indictment and you think that's trash. Then the third indicator for outsiders, I think, and then maybe others is you know, who else was involved in the decision making outside of the people who were beholden to the guy who posted the truth social send these people to prison. And in the case of Bolton, again
it's not just positive at all. There was a search executed and that search was authorized by a court, So there was the intercession of a court. That just gives you, you know, one data point that somebody found outside of the executive branch found there to be some support, probable cause support which is substantial that a crime was committed, right On the other hand, in the James James case in particular, the first indictment was dismissed. Then we understand
from reporting they went to a grand jury. No true, Bill rejected the indictment. They went to a grand jury again, which by the way, is like unheard of and contrary to policy. So you have a dismissal by a judge. So you have the truth social getter. She happens to be a political adversary perceived by the president to biblical adversary of the president. You have a dismissal of the indictment. Then you have one grand jury said no way. You
have a second grand jury that said no way. You don't have to be Clarence Darrow or his or his prosecutorial analog to think something's rotten in Denmark.
Yeah, I mean, but what's your bottom line on the Bolton case working through that?
And I wasn't because.
The bottom line, but I'm just saying, look.
Yeah, because well, I guess my thought is, and we could abstract from the details, but I guess my thought is, even if the way you still.
Sorry, yeah, it is still the body of law that exists about Melissia's and selective prosecution. Yeah, and where people have won on those motions, have not one on the basis of innocence, right, They've won on the basis of selectivity and maliciousness.
Right.
So it is not necessary. It's a tough uphill road in any case where you bring such a suit or such a challenge, but it is not bound up with your innocence. Right if you happen to be innocent, right to have the ability to show that there's no harmful evidence against you, that bolsters your argument that it was malicious and selective, because why are you going after somebody who's innocent? But it is not necessary, no.
Right, Yeah, interesting, And I mean I see the point, which is that in the Bolton case, even if it's true that there are all sorts of indicators that there really is guiltyre the fact that Trump has targeted him, that might turn out to be the thing that makes the difference here in whether or not this is or is not a selective prosecution, even if he is guilty.
Yeah.
I wanted to pivot pre to a question that's on a lot of people's minds, and it's the question of what those in the dog should do. The career lawyers I'm thinking about when it comes to the question of resign or stay. Of course, in Minnesota, we've seen a number of resignations connected to the ICE's role there to questions of going after even one of the victim's partners.
So I mean, how do you see that?
What kind of advice would you give to a member of the Department of Justice. Now, I mean, I'd invite you too, to reflect on your own famous controversy where, of course you decided not to resign during the first Trump administration as a matter of principle, and we're ultimately fired in Trump one point zero by Trump.
And if that's a lesson in any way in any of this.
It's very difficult, you know, and my view on this has evolved, and it depends on the particular circumstances you find yourself. And so if you're the problem is if you are involved in a particular, specific, concrete matter, and you've been given a directive to do something, let's say, pursue indictment or you know, dismiss a case you thought was a righteous case. You're not the turney in the
United States. You know, there's a chain of command. You can either do the thing that you think is wrong, unethical, immoral, unlawful, unconstitutional, that, by the way, this is not a small thing, may put your bar license in jeopardy at some point in the future. You kind of don't have the option of doing the thing that you think is correct. You kind
of have no choice but to step down. If you are the head of the office and you insist on taking a particular action, which you can do right, then you can force your firing, which I'm partial to, I'm partial to making people fire you on their grounds which can be seen to be you know, false or fraudulent or improper, rather than giving them a bye. But you
really kind of have no choice. Then there's a more complicated, i think region in which you're kind of, you know, in a position of authority somewhere in the Justice Department. No one has asked you to do a particular, concrete things that goes against your conscience or your oath or the law as you understand it. But there's you know, overall,
but people around you are doing those things. And in that situation, it's the same moral dilemma that has been faced by lots of including you know, chiefs of staff in the Trump White House, in the first term and in the second term, which is, if I leave, someone with less ethics and less morality and less integrity is going to take my spot. So I should fight for what I can fight for here. And I increasingly don't
buy that. I think it depends on well, it sounds all well and good, but you're tainting yourself and yourself and complicity is bad, and you're enabling things. No doubt,
it's true. You have somebody who you know. There are people who've been in the Trump orbit, including Jeff Sessions and Bill Barr, who were not paragons of virtue in my book as attorneys general, but they had lines right, They had some lines right, And every time somebody with some lines steps away or gets removed, somebody with fewer lines or no lines can take their place. Yeah, so this is no you're the professor.
I mean, it seems to me.
I'm just trying to show my work. I don't know, Yeah, trying to be thoughtful about this. It's just a really tough thing. And there are arguments in favor of staying, the arguments in favor of going. As more time goes by, I tend to favor going.
Yeah, and if it's just a matter of conscience. I mean, this is just fitting with your thought process.
Here.
More and more we have people around who seem to have no conscience. And when I look at Pambondi, it's not just unethical behavior, but I imagine some of it might be even criminal. I don't know if you think that goes too far. And then over time, as the people of conscience over two terms have resigned, what we're left with our loyalists who seem to have no line.
So I wonder how relevant any of this advice becomes.
Then if if it's pure loyalists who don't even have the kind of conscience and you know, careful you also of course teach or a professor professorial way of seeing this dilemma.
Yeah. Look, the arrival of Donald Trump on the scene has put a spotlight on some people who have courage. But sadly, I think the record reflects that it shows a lot more people about whom you didn't you think of what their moral fiber was or the makeup of their spine was, who don't have courage and like to hold onto power. I mean, for me, you know, it's
interesting you talked about my controversy. My sin, it sounds so quaint now, was determining that as the independent, somewhat independent United Attorney and the Southerners good New York, that I shouldn't speak to the sitting president of the United States who had called and left a message, that I shouldn't speak to him without knowing what the nature of the call was, given my jurisdiction over various of his properties businesses, the appearance of impropriety, especially when that call
was not made under the auspices of some you know, program or policy, and Jeff Sessions wasn't involved. And I never said that I wouldn't talk to the president in any circumstance. But you know, my integrity told me, and my training told me, and the example of the REDA. Lynch, the former Attorney General on the tarmac with Bill Clinton, all told me don't talk to the president, and twenty hours later I was told to step down, as were others.
But I'm positive there's a link between my refusal to talk to the president and my being asked to step down. How quaint is.
That, Yeah, can even imagine that?
And that was the best job, Yeah, you know, I loved the job so much and thought it was such an important position to have. I didn't vote for Donald Trump. I didn't have respect for him as a politician, but I accepted his offer to stay on because I thought I would be left alone in the sovereign District of New York to do my work and not to pat myself in the back. And I lost my Job's fine, I'm thriving here. I am with you, right and and there's so many people who can't.
Allow it's not that great that you want to be there, no matter what I mean. I think too, it's an illustration of the difference between the world. I mean almost a historical document of the world in which the way the DOJ the way US attorneys thought about the dilemmas that they faced, and the independence of the Department of Justice,
and what those worms meant. Then when you look at Pam BONDI now essentially taking commands from the President of the United States to go after his enemies, I mean, you couldn't even imagine to step.
Down, have some integrity, have some pride, and just get the hell out of Dodge. I don't get it. Look, you know you have law firms who caved for no reason, for no reason, and we're all very nice and polite about it. My law firm had an executive order issued against it. We went to court. Yeah, we're one of four law firms Wilmer Hale. I'm very proud of that. And you know, I don't mean to be overly dramatic, and I'm not, but what I leave these environs one day.
You know, ultimately, I'm proud of the fact that I didn't talk to the president. I'm proud of the fact that I wanted to affirm that went to court. And one like, you know, more people should want to do that. More people should want to have that be the thing that their associations are are known for and that their own personal conduct is known for. And again I don't mean to get in my high horse, but I just don't get it. For a little bit of power for a little bit longer, it's not worth it. Yeah.
And also when you think about the fact that this regime will end one day and the unethical behavior, the crimes. You know, as we've been saying on this podcast, Donald Trump might have lots of criminal immunity, but you know, average officials might not.
And so here's the case.
Certainly they don't have ethical immunity, and they don't have immunity from Here's.
What they're going to say. You know, they're going to say, Look, I was a tempering influence on the president. I was a tempering influence in that administration. If it wasn't me, it was going to be somebody wh And here, you know, you don't know this, but behind the scenes, here are the things that I did. I sidelined this bad guy, I fired this other bad guy. I prevented this other weaponized prosecution. But meanwhile, you are complicit in lots of
other bad stuff. And you know, I don't know that I trust a person who wants to stick to their job so at only to make the judgments about, you know, which things were appropriate to let slide and which things were good not to let slide. But that's what they're all going to say when they come out. They're going to launder themselves, and we should not permit them to get laundered.
Yeah, exactly. I mean you've started answering my last question. This has been an amazing and in depth and honest conversation preed and I like the idea too that in some ways the usual professorial model of resign or not, and questions of conscience really have shifted as we're facing the threat of well, as I see a dictatorship, and the question of whether you want to be complicit in the destruction of American democracy seem looks different than the
questions of conscience might have in previous presidencies. I mean, we've talked about some you know, worrying things pre and we're always looking for hope on the oath in the Office podcast. So that's my last question, I mean, where can we find it?
Well, look, it's we find it where I began in talking about a few minutes ago, when I said the advent of the Donald Trump administration, particular the secondministration, I focused on one of the two things. I focused on the negative in my answer, and the negative is that you find people who have no scruples, who want to hold on to power, who want to hold on to their prestigious position or get a prestigious position. But then you do find people who are courageous and will fight
against the tide in their own party. You know, Liz Cheney is one of those people. I think Marjorie Taylor Green is one of those people I think I mentioned already. I think the four law firms have fought when so many didn't and were told that they were going to perhaps cease as going concerned. The law firms have been around for decades or hundreds or hundred years. You know, they took a lot of risk and they did those things.
The people of Minneapolis, who by dint of I think protesting honorably and peacefully and not giving, you know, the other side an excuse of overreaction to then be more violent and say, see, these killings you thought were unjustified were justified because we now have an unruly mob and these people are savages and they've been called worse things
by President Trump. Whenever bad things happen, you see two things go on, right, You see some people who go along with it because they think that's the way to be, and you see people who defy it. And so I always draw inspiration and hope from the people who defy when it's most difficult to do so, when it's most perilous to do so. And there are lots and lots and lots of those people, and we should hold them up and hoist them up and try to find ways to join them.
Yeah, I mean, ethics might look different at this moment and what the right thing to do is. But one of the things that I've gotten from this conversation, it's been such a pleasure to have this in depth conversation with you, is that you know, it's especially in the most dire times that we need to think about questions of ethics and that looking for heroes and looking for those people of virtue and so preed.
Thanks for joining us.
And thanks you. Great conversation, total pleasure again, great to see you.
Thanks for joining us.
Wow, I want to thank pree Berarra for sitting down with Corey.
That was great.
Corey, this is a guy who's been on the front line since the first year of Trump's first term, and it's so amazing to see how he is still fighting for the.
Rule of law.
Yeah, when you and I first met, it was around the time he told the story about how he decided to refuse to resign to force Trump to fire him in order to get on the table the corruption that was at the heart really of Trump's regime, and that story, you know, is one of the.
Ones that we talked about.
So to get to talk to him in depth about what happened and his thoughts about Department of Justice.
And dependence, and also to end on the hopeful note, to.
Talk about ethics and the importance of ethics, especially in the midst of this attempted dictatorship, and finally to get his ideas about hope and that theme of the oath in the Office podcast that we always come back to that yes, it's a dark moment, but we will recover. He was an exceptional guest. We'll have him back, and what a pleasure to have him. What a pleasure of course, as always John, to speak to you every week.
Well, and I thank you, Corey. There's no one I'd rather spend multiple constitutional crises, because we're way beyond constitutional conflicts. We're in multiple juggling constitutional crises with live chainsaws. And I mean, I gotta say, like, really, it is the judiciary that's the primary bulwark against this overreach. I mean, God bless all the good people marching in the streets, But it ain't the press right now that's doing it.
And it sure ain't Congress that's doing it. I mean, these other institutions are supposed to play equal or greater roles, but it really is the judiciary.
If you had a.
Chance to tell everyone in America about what's at stake legally and constitutionally in these conflicts for the months ahead, what would it be.
Well, John, I mean, I wish I could say that we could look at each of these conflicts, and you know, there's a question about search and seizure and ICE ignoring it. There's a question about the Tenth Amendment and ICE ignoring it. There are the questions about extortion that we talked about at the beginning of the podcast, and political prosecutions that I talked about with pre But really, I think it's
a mistake to just see these as isolated things. The thing that really is at stake is our democracy and the threat that the presidency, which is supposed to be bound by the rule of law, might be used to destroy democracy itself. It's something that the anti federalists worried about, that the founders were aware of, and wow, it really might happen. And I don't want to hide from that.
That's what we're showing every week. But I also don't want to hide the hope because we are fighting back, and I do think that in the end, the fact that we're fighting that there is a constitutional crisis, that we haven't given up, that there's a crisis at all, not subjugation, that that's where the hope comes from.
Well, I want to just thank you Corey for just helping us navigate this extraordinary moment where legal norms and constitutional order and political power are intersecting in ways that Civics class it didn't prepare us.
And thank you for knowing all the bad bunny lyrics too.
What is the best way for our listeners to follow you, professor and keep up with your work the other six days of the week.
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Right on.
I want to thank Wendy and Beowulf and everyone helps us put the show together. I want to thank all of our listeners are being so brilliant and so deeply attractive, and most of all, I want to thank you Corey for making me feel a little bit smarter, a little bit braver every week. You can hear me every night on Serious XM Progress Channel one twenty seven. If you don't have Serious XM, we're a free podcast called the
John Fiegelsang Podcast. I have a substack too, and my book is called Separation of Church and Hate, A sane person's guide to take it back to the Bible from fundamentalist fascists and block pleasing a prauge, Corey, I feel better about my crumbling democracy already. Thank you, and we'll see you guys next time on the Oath in the Office.