transcript

Speaker 1:
[00:09] Welcome to another episode of The Oath and The Office. I'm John Fugelsang. Welcome to the show. We have quite an episode today. The Trump regime is losing in Hungary, in courtrooms and in the Vatican. For the first time in our lifetimes, we see a pope and a president openly clashing, not over abortion, not over gay marriage, but over the radical controversial leftist idea that killing people in large numbers is bad. For more, let's go to the star of our show, the author of The Oath and The Office and The Presidents and The People, Constitutional Law Professor Corey Brettschneider. Corey, it is so good to see you. Welcome back.

Speaker 2:
[00:44] What a pleasure, John. And some of the best news we'll talk about in the second half of the show, which is that in a regime that looked like it was destroyed, democracy had disappeared, it's come back. And that election has got to give us hope in our own situation where we're facing a threat to democracy. And of course, this battle that's brewing between the pope and the president is something that really seems like a kind of bad novel or something. This is our reality. And we'll see, we'll try to use it to think about what it can teach us about the role of religion, the idea of neutrality in religion and politics. And it's a teaching moment, as they say, a teachable moment.

Speaker 1:
[01:22] Yeah, there's a lot I want to get to on that. And let's get some announcements out of the way. First off, please subscribe, everyone. Please like us and subscribe. And also over on the John Fugelsang podcast, really quick, we had a very special guest, Mr. Martin Sheen, who has joined us on stage for sexy liberal shows in the past. But he read my book, Separation of Church and Hate, and I was trying to get him on my show for a long time. I'm in LA last week, Corey, and I was talking to you the day this happened. And I said to Mr. Sheen, okay, well, listen, we can do it on Zoom. I'm happy to book you in a gorgeous space in the Hollywood studios. They're very lovely. Or I can come to you. And he wanted to come to my place. And so he and his daughter drive over and we sat around the kitchen table and talked for over an hour. And he discusses everything, activism and acting and craft. He talks about everything from working with Arthur Miller to Dorothy Day to activism. And it's a really, really special conversation. And it's the first time I've ever done an interview with anybody around my kitchen table who's also a former American president. So I was pretty excited.

Speaker 2:
[02:27] I had to say, yeah, the transition there is seamless because our show, of course, The Oath and The Office, are so deeply related to President Bartlett. And during the Bush administration, I often imagine that this really was the president. I had an amazing moment in law school that relates to him, which is that my favorite professor and mentor who we'll have on this show, Larry Lessig and I were talking in his class. And I said, I have to leave this conversation because I never missed the West Wing. And I ran home to watch the West Wing as I always did. And the episode begins with Christopher Lloyd saying, Hello, I'm Larry Lessig, here to see President Bartlett. And it was an episode in which your interviewee, President Bartlett, interviewed the fake version of my law professor played by the Back to the Future star.

Speaker 1:
[03:17] Well, it was really awkward for me because I've never heard of the West Wing. I just wanted to talk about him playing the evil president in the dead zone, Greg Stilson. So it was really not the kind of interview he was ready for.

Speaker 2:
[03:29] He wasn't thinking that was his best role.

Speaker 1:
[03:31] Well, I'm glad you're here, professor, because I'm always happy to talk to Abernackels. And even though we do a podcast about the Constitution, boy, oh boy, the founders knew that there were problems when you try to merge church and state. And the Pope is a guy who follows Jesus, who famously had a bit of a problem with emperors demanding loyalty. So, we just had a very strange Easter week. We talked about it last week. Trump celebrated Easter by having a posting about violence and mass slaughter. I always thought Easter was about a guy coming back from the dead, not sending lots of people to it. But Pope Leo steps up to the mic, and we've talked about this. He gives this greatest hits compilation of Jesus' teachings. Blessed are the peacemakers, love your enemies. Put away your sword. For those who live by the sword will die by the sword, right? Basic stuff, Christianity 101. Killing civilians is wrong. Peace requires dialogue, not bombs, right? This is very basic. It's like, wash your hands. Don't eat the silica gel. And the president, as you know, Professor, went after him, called the Pontiff weak on crime, which is great when it's a 34-time convicted felon. And he called him a failure because the Pope was quoting Jesus to oppose this war. He called him a liberal. Nothing screams radical left like, don't bomb children. And Corey, my whole thing is, being mad that a Pope won't endorse your war is like being mad that your doctor won't endorse your cocaine habit. But then Trump posts this AI photo of himself as Jesus at what appears to be a NASCAR resurrection halftime show. And it looks like a monster.

Speaker 2:
[05:05] He claimed it was a doctor. It was a doctor.

Speaker 1:
[05:07] It was a doctor with light coming out of his hands and a white tunic and a red sash healing.

Speaker 2:
[05:11] A doctor that looked a lot like Jesus.

Speaker 1:
[05:14] Yeah, dressed just like Jesus. And apparently he's healing one of the Oak Ridge boys. I don't know who that guy was in the bed. It looked like a can of monster energy drink getting baptized is what the whole thing looked like. But Corey, you have written so extensively about protecting democracy against authoritarianism. And it's what we talk about all the time. So what happens when power starts trying to discipline or dictate to or intimidate moral voices like this pope?

Speaker 2:
[05:43] Yeah, I think that one of the founding ideas, of course, expressed in the Free Exercise Clause guaranteeing free exercise of religion, and also barring the state takeover of religion. And the worry was that if you got the state involved in religion, it's going to manipulate it for its own purposes. And so our Constitution doesn't just ban an established church, it bans any law or really arguably even any expression by the government that suggests that there is one true or false religion. And those ideas, I think you start to see why you want them, because you have a president here really trying to commandeer and back down and essentially threaten the Pope by engaging in this harsh rhetoric. The fact that he responded, I have to say, from the beginning by saying, I'm not afraid, what a moment. You know, it really sends the message that, yes, this president of the United States is trying to impose his will on the leader of the Catholic Church. And the elegance of that way of putting it, Pope Leo is, you know, winning over a lot of fans, including those who aren't in here and simply by standing up for the truth. You know, I think in the Trump universe, the Catholic Church, religion generally, is supposed to just be apolitical, not have any comments, nothing to say. And what does that do? It requires an abandonment of any serious principles. Part of religion is about a theology of the existence of God, but it also is about ethics, it's about human relationships. And for a religion to abandon its ethics is asking it to abandon itself.

Speaker 1:
[07:18] Oh, so true.

Speaker 2:
[07:19] And what's happening here is that the Pope is standing up for the principles of the Catholic Church as he understands them, as he's obligated to do, and the president doesn't like it because yes, ethics conflicts with the policies of this president, of this government, and that's inevitable. There's no such thing as a truly neutral ethics. Correct.

Speaker 1:
[07:42] Correct, it was amazing hearing JD. Vance essentially tell the Pope to stay in your lane. You know, never mind the fact that the president's a reality show character, but the Pope, he said, Pope should stick to matters of morality. And it's like, well, slaughtering civilians in large numbers I think is covered under matters of morality. Furthermore, Professor, these folks were never saying church should stay out of government when they were trying to distort the Bible to say that Jesus opposes abortion and to take rights away from people. They piled on for that. And look, historically, popes have made a lot of mistakes. Popes have done a lot of evil things, but not being pro-war enough is not one of the things people usually complain about. Corey, is there even such a thing as neutrality when the core teachings of a religion like opposition to war are directly contradicted by state policy?

Speaker 2:
[08:34] No. How could a religion be neutral? The whole idea of religion and of anti-ethics is that it has a set of values that it's pronouncing. Now, it's one thing to be partisan and for a religion to say, this candidate should be excommunicated or this can't. We could argue about that and churches are supposed to be nonpartisan. There's actually a legal requirement that they not endorse candidates from the pulpit or oppose them. That's in the law that creates non-profit status and it comes from the Johnson era in which a decision was made that we don't want churches either engaging directly in politics or being commandeered by politicians. But that's not what's going on here. What's going on is that the Pope made a pronouncement about an ethical commitment that the president didn't like and that was in conflict with the president's behavior, including his illegally initiated war. That shows that the myth of neutrality can't be right, that religion stands for something. The danger is of also, and I don't want to miss this point, a president claiming that he wants neutrality, that's not really what's going on. He wants control. And so it's only neutrality that he's going to talk about when it's beliefs that are opposed to him, but when he could control it, when he could use it for its own message, he's perfectly okay with it. I mean, it's amazing how much this conflict illustrates what the framers were worried about, a government commandeering religion. I have to say one personal note, I've mentioned before on the show, but I'll mention it again, which is that my wife's grandfather, Alan Graves, was a Christian ethicist, wrote several books about Christian ethics, and was a professor at the Louisville Seminary, and a close associate of Martin Luther King Jr. And when we think about the civil rights movement, you can see the points that I'm trying to make. Imagine, and people did say to King, why are you involved in politics? It's not your place. And of course, if you're truly a believer in ethics and an ethical philosophy, you not only find yourself in conflict with some political positions, you can't help but speak out and condemn what is immoral. And that's the point of it.

Speaker 1:
[10:40] I mean, since Rome co-opted Christianity and had their hostile takeover 1700 years ago, this has been the pattern. When you want to have state violence, you need to bring in some guy with a funny hat and a dress, some clergy, to sanctify state violence. And for 1700 years, you know, look at Paula White-Cain. It's not hard to find some religious figure willing to throw Jesus under the bus in exchange for proximity to power. The whole use of messianic imagery to sanctify political power and violence isn't new. Every authoritarian movement of the 20th century wrapped themselves in God and the flag. Hitler did this too. And this is how authoritarians, and we've talked about this, how they signal to their followers that their authority and their violence isn't just political, it's divine, right? So when a president is framing criticism from a religious leader as political, that's really a way of de-legitimizing any kind of moral criticisms of what he's doing. Have we seen moments, Corey, where religious institutions had no choice but to confront political power? I mean, it does happen. You know, this is like what Hitler said to Bonhoeffer when he used the Bible to oppose what the Nazis were doing.

Speaker 2:
[11:55] Yeah, I mean, I mentioned King already, and that is an incredible moment. And, you know, he had to find a vocabulary to learn how to do it. I talked about this in The Presidents and the People, that he begins with really straight natural law philosophy, the idea of Aquinas, that an unjust law is not a law at all, and reaching to the idea of the divine law giving birth to the law of nature, which then has an impact on how we should think about society. One of the stories that I tell is that there's a student, actually, who hears him in a debate making these arguments and says, you know, this is gonna grab some people, but not all people, and you have to find a way to combine your Christianity with a common vocabulary. And so King transforms his ideas from solely Christian theology to combining it with the Constitution. That's really interesting, you know, to think about the Constitution as an independent document and then Christian ethics that supports it. But you have to be careful in how you do it. There is a movement now which we've talked about too, sometimes called post-liberalism, that tries to really read the Constitution as a Christian document. And King is always careful to not do that as solely or exclusively Christian document. The other point in history that should worry us and concern us about religion being co-opted by the state is in some forms of fascism. I mean, Franco's Spain, for instance, famously used images of Catholicism, of Christian imagery in order to co-opt, to undermine democracy. So we have to be really careful when politicians either try to co-opt religion, including Christianity, and also when they claim somehow religious people can't have their own independent voices or religious leaders and demand neutrality. It's always in the service of their own power. And that's what we're learning from this, as I call it, teachable moment.

Speaker 1:
[13:44] And again, I wrote a whole book about this. There's two streams of Christianity that have gone on for 1700 years.

Speaker 2:
[13:49] Yeah, I have to ask you, John, I mean, you're working on a new book. Can you give us a preview of how all that relates? Would you rather not?

Speaker 1:
[13:55] Well, it's exactly about this. It's about Christianity and power. And it's about fake Christians. But that's not a label I throw around casually at ordinary people. Who am I, right? Like I'm in Coyote Ugly. I don't get to judge anyway. But I do use the label for those in power, because you'll see a pattern throughout history that you got a spot, which is these people who used Jesus to get power. And then once they have power, they do the opposite of everything Jesus says. And then you see a Christ-following resistance, like Dr. King, like the Quakers, rise in opposition. That's normally through history, how you can tell when any kind of authoritarian is co-opting religion. You'll see the Dr. Kings who will stand up and quote Jesus, and they usually get called communist for it, which we've seen happen to James Tallarico and Reverend Warnock in recent weeks. It's like these Christians, they hate hearing from Jesus. But when a political leader publicly attacks a religious figure, like Pope Leo, for preaching peace, does that force religious institutions out of neutrality, whether they like it or not?

Speaker 2:
[14:58] Yeah. It's a self-defense. Leo didn't ask for this fight. In fact, he's, I think, been very careful to try to message in a way that's very clear about his own morality. Then here comes Trump attacking him. What are you going to do? You have to defend your own view, especially if it's being mischaracterized as is happening here, or slammed or denigrated. At some point, self-defense of your own beliefs is necessary. Of course, Trump is getting dirty in all of this, claiming, well, the Pope's brother is a Trumper, which has some truth to it. But why are you doing that?

Speaker 1:
[15:30] The one who called Nancy Pelosi the C-word, that's who Donald Trump finds more simpatico.

Speaker 2:
[15:35] Yeah. So that's his religious hero, the Pope's brother, who happens to be a fan rather than the Pope himself. And all of that is an attempt to denigrate. Donald Trump has an office that he's denigrated, and he's certainly denigrating the office that the Pope holds as well.

Speaker 1:
[15:51] Yeah. Well, I guess that's why Trump decided to Photoshop himself into divinity, because this ridiculous AI image that he put out, I mean, you got Leo saying, hey, don't worship power and money and violence. And Trump responds with, oh good, here's a picture of me as God.

Speaker 2:
[16:07] Yeah, false idols are all, that is Trump's main, main, main gig.

Speaker 1:
[16:11] Well, this is what, this is what made a lot of people flip out over this, over the weekend, not, not the Trump's blasphemy, we're used to that verbally. The guy had cops beaten on the Capitol steps for a lie. But this whole sequence of him saying first, the Pope is bad for opposing war, and then also I'm Jesus now. This got a lot of people saying, oh, are we at the point where we have to start talking about the 25th Amendment? And I want to ask you about that today, Professor, because we should be getting very used to people talking about the 25th Amendment quite a bit, something that has been discussed before, never been deployed before. Let me start with the basics on this one, Corey. With the caveat that I don't think this is gonna be used against Donald Trump, I think he could smear feces on a podium and they wouldn't do it. But what exactly is the 25th Amendment to the Constitution designed to do?

Speaker 2:
[17:01] It's designed, well, for a moment like this, where the president is, the word, the crucial word in the 25th Amendment is unable. And an instance in which the president is physically unable to govern, in a coma, for instance, to deal with a situation like that. We've talked about the serious ailments that we now know Woodrow Wilson had at the end of his life. That sort of thing is on the mind. It's crafted in the 1960s by, among other people, the former dean of Fordham Law School, somebody I know well, John Furek, is one of the true founders of it. And he's confirmed to me something that looks to me plain from the text, but you also get a sense of... I can't ask Madison what he thought, but I can ask the founder of the crafter of the 25th Amendment that it was clearly meant to, for mentally unstable cases of dementia, psychological, being psychologically unable to govern. And that's what we're seeing in all of these tweets, the depictions of Jesus, the manic, true social, and I guess true social posts that are being in the middle of the night showing up. These are things that really make us worried that this president is unable, in a psychological sense, to govern. Now here's the problem, with all due respect to the crafters of this amendment, including John Fugel, I think that what they imagined was that in these serious moments, that people would put partisanship aside, and even members of the cabinet would realize, we've got to remove this person, we've got to stop him. And they put that as one safeguard. I think their thought was, they're not going to do it for political reasons because they're co-partisans, but they'll rise above partisanship. So section four requires the vice president, a majority of the cabinet, to push the president out temporarily. And then there are only a few days until Congress has to affirm the decision. And you need two thirds of both the House and the Senate, just to compare it to impeachment, to see why this is not workable. What you need for impeachment is 50% of the House and two thirds of the Senate. So this is actually a more difficult, much more difficult way to move.

Speaker 1:
[19:01] Right, it's a tougher legal threshold for it, but there's a lot of-

Speaker 2:
[19:04] And the cabinet is.

Speaker 1:
[19:06] Well, let me ask about that, because there's a lot of public confusion about this. And I wanna, people often think it's a tool to remove a president for being unfit, but that's not what it's about. It's for being unable, correct? And even Woodrow Wilson, with his wife answering the bedroom door saying, oh, he says this, he says this, while Wilson had a stroke and couldn't talk. I mean, that didn't reach the level.

Speaker 2:
[19:27] Well, I think it would have. I mean, you know, it's passed much later. We didn't have it. But yeah, I think that is the kind of thing that they're thinking about, you know, that he was physically unable to do the job. And so I think in the minds of later on of the drafters of the amendment, that's the kind of thing that they were thinking about. But they also were thinking about psychological illnesses, you know, or dementia, for instance, that made the president psychologically unable. And so I think there too, you know, there's a parallel, and that word unable.

Speaker 1:
[19:55] And again, the cabinet has to initiate it, right?

Speaker 2:
[19:58] I mean, and the vice president. So we're talking about JD Vance.

Speaker 1:
[20:02] And now, you know, now, you know, if we want to really get in, oh, that would be like accusing him of being ambitious and having no core values.

Speaker 2:
[20:08] Yeah, maybe if he would have his moment. But, you know, the idea that who is going to vote for this? You know, Hegseth, the world wrestling cabinet member, the education secretary. You know, I just don't, I don't see it happening. And I think that was what was naive about the moment.

Speaker 1:
[20:26] They're all selfish narcissists like Trump. So they would all do it once it became in their interest. Trump got rid of Pam Bondi and Kristi Noem once getting rid of them was in his interest. There is no loyalty here. There's only obedience. And we've never come close to using this in modern history. I mean, it seems like Americans are overestimating what the Constitution can do on its own without that.

Speaker 2:
[20:49] That's right. I mean, we do have impeachment, which has never worked and it's an easier threshold. So, you know, the idea that this is going to work, but we also, I think, can talk about re-crafting it, seeing that it really is an important thing that we should have, even though we don't have it. That's one useful reason to talk about it.

Speaker 1:
[21:05] I'll mention another thing that's... You mean like a more flexible use for the 25th Amendment?

Speaker 2:
[21:09] Well, I think a lower threshold might be part of it. You know, that I don't know how I would design it, but certainly not a majority necessarily. Just, I wouldn't go to the cabinet. I would probably have a... Well, I'll outline one feature that they did think about that hasn't been used, which is that the amendment creates a new power of Congress, which is to create a board. Now, who would be on this board? It leaves unspecified, but I imagine, for instance, it could be psychologists who would look at the president. And again, the amendment creates a power of Congress to do this. They would look at the president's health, mental health or physical health, and then they can make a recommendation in the event that this legislation was passed and created to Congress, which then would make a decision. I think that is something short of an amendment that we could do in the next Congress, assuming there's a Democratic majority, is create this board of professionals. And the thought is that maybe Congress would listen. The fact that you need two-thirds of both houses, I think that's a problem.

Speaker 1:
[22:08] The Republicans would have done it during Joe Biden's term, Corey. I don't see them ever doing it again.

Speaker 2:
[22:12] Well, one pro... I mean, this is an interesting question, John, in constitutional design, because there always is this danger of overreach and of politicization, and that's what they were worried about in the 25th Amendment. It's why it's so hard to remove a president. They're worried about that kind of situation in which it's partisan rather than based on health. But I guess my view is, you know, what we've seen with this Trump presidency is that the danger of a mentally unstable, to say the least, president who is aggressive, controlling the commander-in-chief power, nuclear weapons, is so dangerous that I'd rather risk that it would be overused rather than underused. And if you look at the fact that, as you said and pointed out, it's never been used. And the fact that impeachment actually has never been fully used. We've had majority impeachments in the House, never two-thirds in the Senate. I think we've got to make it easier in some way to remove a president. And so this is one serious possibility.

Speaker 1:
[23:08] Well, and as I learned from you, impeachment is there because they wanted an alternative to assassinating a president. So I think, yeah, I'd like to have more options, please.

Speaker 2:
[23:16] Yeah, more options, please.

Speaker 1:
[23:18] We've got to take a break. When we come back, Viktor Orbán's defeat and what it means for democracy around the world and here too. This is The Oath and The Office. Welcome back to The Oath and The Office, I'm John Fugelsang, along with Professor Corey Brettschneider. Corey, there are a few things more satisfying than watching an autocrat who spent 16 years rigging the game lose the game anyway. But that's what just happened to Viktor Orbán, Europe's longest running audition for elected dictator, now leaving after Hungarian voters finally said, we've seen enough, thank you. The quite conservative Peter Bagyar buried this 16 year regime in a landslide. And as we've discussed in the past, Professor, Orbán was really a case study in 21st century illiberal regimes. He wasn't just a leader, he was the system. Tell me if this sounds familiar. For over a decade, his party pulled a complete takeover. They purged the judiciary, they built an obedient media, rewrote the laws to get rid of guardrails, and they pushed an overtly racist anti-woke crusade, and elections, they were more curated. Does it sound familiar?

Speaker 2:
[24:36] Yes, I feel like I'm living through that.

Speaker 1:
[24:37] Yes, so what stands out the most to you, Professor, about what just happened in Hungary?

Speaker 2:
[24:42] Look, the first thing is to say that there's a lot of hope, that there's so much despair. I think that one of the, we have to be honest about what's happening, but of course, one of the entire points of doing this podcast is to give people hope that as our Constitution is threatened, that we can recover. And so that's what this does. It's an example, arguably, that's worse than what we're living through right now, in that you really did have a dictator. You had legislation, not just executive action, but legislation really viciously discriminating against gay people, against transgender people. And yet, despite what was arguably a collapse of democracy into a dictator, the people rose up and they pushed back. Now this isn't a progressive leader, it's a conservative, but it is a rejection without question of authoritarianism, of Putinism, and hopefully of this vicious anti-civil rights agenda. A lot of it couched in terms of religion, I should say, that a lot of the Christian theocrats in the United States who are advising JD. Vance have been over there advising Orbán. And that is his philosophy. And in fact, of course, JD. Vance himself has been over there campaigning for Orbán. So there are close parallels. And yet, we came back. One other big point, which really should give us hope, is some of the worst gerrymandering that you can imagine happened in Hungary. And as bad as the gerrymandering is here, they still overcame it with a landslide. Orbán's party has really, has outvoted almost two to one in this election, or about two to one, I should say. And yet, the gerrymandering didn't work. And that's true here too. They can try to rig the election. They can try to intimidate voters. But if we come out in force against this authoritarian moment, democracy can prevail. And this is a shining example of it.

Speaker 1:
[26:35] You're right. I mean, the voters were still able to remove them after all of this rigging. And after the whole authoritarian cinematic universe showing up for this guy, I mean, Putin and Trump and Marco Rubio goes over there and JD Vance goes over there. And yet these heavily tilted systems can still be overthrown through democracy. And is this a, do you view this as kind of a weakening of the unitary executive theories power right now? Because I think Orbán was kind of a template, you know? This model we've talked about for a certain kind of a leader, you win elections, you undermine the institutions, you rewrite the rules to rig the system, you call it democracy. And for years, that model worked until it didn't. Because I think there's a fatal flaw, Corey, in every strong man regime. At some point, you run out of people to blame. And Orbán blamed immigrants and liberals and journalists and academics and gay people, always another villain. Until one day, you know, the only thing left between the voters and reality is you, dictator. How important was civil society, protests and organizing and independent media in making this outcome possible?

Speaker 2:
[27:44] You know, it is what did it. And you know, when we see the No Kings rally and we see people in the streets, that is part of setting the moment. I mean, let's not underplay the way he responded because he realized that he wasn't going to, through a normal democratic process, remain in power. And so like Trump, he tried to cheat and that gerrymandering was a way of trying to undermine the normal vote of the will of the people. And yet, but this is a truly inspiring thing is despite all of the cheating, it didn't work that the force of resistance was so strong that it wasn't just a normal democratic will. It was a reaction really of almost the entire society rejecting that cheating, rejecting that authoritarianism. And that's what I hope that we see here too. You know, the unitary executive theory, although as much as I disagree with it, it was never designed for dictatorship, but it might lead to dictatorship and it might lead to a president who tries to nationalize elections in order to cheat. But how can we overwhelm that? Maybe even in Texas, you mentioned hopefully future Senator Terulico, through speaking the truth, through galvanizing support, and even in the face of gerrymandering, the Senate election will be the entire state, but even in the Texas Senate elections, even though they've tried to gerrymander, say about five seats, if we can overwhelm them with force, those seats might actually not all go in the direction that they were designed to go in.

Speaker 1:
[29:11] I think one of the takeaways that's kind of a hard pill to swallow for folks on the left is that this was done because they knocked out a right-winger with a conservative. There's this impression to think that Magyar is somehow this liberal reformer. He is not in any way. He'd be considered quite conservative in our country right now. And it took all the liberals and progressives in Hungary to hold their nose and vote for the lesser of two evils. And I know that this is tantamount to a sin voting for the lesser of two evils. I get it, believe me. I voted third party several times, but to me, the greater evil is not voting. That's the greater of all evils. And sometimes the only thing that works in a democracy is voting for the least harmful candidate and then beating them up every day. I mean, for all its flaws, Corey, democracy seems to have one really inconvenient feature for authoritarians. It allows people to change their minds. Do you see this having a ripple effect around the world, including here?

Speaker 2:
[30:09] You know, to just get into the Hungary case a little more, yes, the newly elected leader was an ally of Orbán, who then turned on him. And of course, the worry is that even though we've gotten rid of Orbán, we haven't gotten rid of authoritarianism. And the trick here, I think, is that the constituency that brought him to power has to continue to speak out against authoritarianism. Some of the chanting that I heard in media reports that they were showing was yelling, you know, Russia out, Putin out. And, you know, that's the reason he was elected. And so, that's not the end of the story. And that's true here, too. I mean, as you know, I think that we need to have a movement, we have a movement, the No Kings Movement, in favor of restoration of our constitution. And whoever the next president is, progressive or moderate, Republican or Democrat, that movement has to demand from them an end to the Trumpian authoritarianism that we're seeing. That won't come from Trump, it won't come from JD Vance. We need to replace them. But, you know, that's what we've got to demand. My hope, I don't know how hopeful it is, but, you know, one real question with the, given the last discussion that we had, the weakening of JD Vance, is that Republican primary might be more open than we realize. Oh, very much so. In the hope that there'll be some sensible, moderate candidate of this kind that might emerge. That can only be good for democracy, and not likely, maybe.

Speaker 1:
[31:30] You know what's gonna happen is JD Vance is gonna try to run as the guy who was really against the Iran War all the time, just didn't do anything about it, and Tucker Carlson is running for president as the douchebag conservative who was always against the Iran War. I mean, the ads are already written, and I'm already nauseous just saying that out loud. Let me bring it back here to some interesting news, because you remember a few months ago when Rupert Murdoch in his Wall Street Journal posted that birthday card that Donald Trump made for Jeffrey Epstein's 50th birthday in 2003. Because Murdoch will push the propaganda about Trump being great on his TV channel, and he'll tell the truth about what Trump is to his peers in the Wall Street Journal. So Trump sued him for $10 billion, the man who probably did more to help him become president than any other person next to Putin. So this week, US. District Judge Darren Gales, a Barack Obama appointee, dismissed Trump's 10 billion defamation lawsuit against the Wall Street Journal. It's not often I find myself rooting for Rupert Murdoch in any kind of conflict. But Professor Gales said Trump came nowhere close to proving the journal had actual malice. When publishing this story about the tacky birthday card, this is the one with the nude woman, and Trump wrote that he and Epstein share a wonderful secret. So I want to ask you about that, how Trump came nowhere close to proving actual malice. What does that standard actually require in plain English?

Speaker 2:
[32:53] Well, there's thankfully a case, a Supreme Court case that extends the First Amendment to worry about cases like this, where powerful people are going to try to use lawsuits in order to basically sue people into silence and to have a chilling effect of scaring them from even speaking out in the first place. And I mentioned Martin Luther King Jr. before. This is a related case. It's about a civil rights organization connected to King had a newspaper ad that condemned a Southern police chief. And there were some mistakes in the ad, unintentional, but they were there. And under the normal law of libel, saying a falsehood about somebody could get you sued. But what the Supreme Court sensibly said is, when public figures are involved, and when it's an issue of public concern, and that certainly was an issue of public concern, we have to be more careful and more protective of the right of people, even to make unintentional mistakes. So the way that they create the law is, you can still be sued if you're really intentionally lying about somebody, intentionally trying to be malicious against them. So now to go to this moment, The Wall Street Journal publishes this information about Trump and Epstein. And thankfully, what the court says is there's no case here, because even if we could look into whether there were some mistakes here, and that's what Trump is claiming, but even if there are mistakes, it's not malicious. They believe that this is true information. It is. So the law is functioning as it should. One last caveat. It's a great outcome. This is a lower court. The Supreme Court has flirted with the idea that maybe Trump is right after all in thinking, as he said from the beginning, that the libel laws ought to be changed. In fact, that's what he said from the beginning, and has considered that maybe this case and the ideas that I talked about of requiring actual malice, allowing for a vast amount of free speech to be free from lawsuits, maybe it's all wrong. And the Supreme Court is flirting with that right now.

Speaker 1:
[34:50] I kind of love that he attacked the Pope for using Jesus' words against him, and then attacked Rupert Murdoch for using his own words against him. And I get it, this is a $10 billion law. I mean, that was that wasn't a legal strategy. It was all political messaging. But does this ruling reinforce the First Amendment protections for the press, even when the reporting is controversial or embarrassing?

Speaker 2:
[35:13] It's an important moment. It draws on this case from decades ago that's still with us for now, thankfully. And it shows how important it is that we have a First Amendment. We've had periods in our history. One thing that New York Times vs. the Sullivan clearly is is a rebuke against John Adams and the Sedition Act when the opposition party was shut down. And here, you know, the court, this lower court anyway, is saying, no, the president can't use his threat of lawsuits in order to silence people. And thank God for that, because that's what we need in a moment in which we have an authoritarian president, our voice is to criticize him, free from both fear of imprisonment, which he's trying to shut down in his attempted prosecutions with political opponents like Letitia James and James Comey. But also in, we shouldn't have to fear that we're gonna lose our income, lose our money, become bankrupt because we engage in free speech. And that's why this is so important right now. That First Amendment turns out to be a crucial part of democracy.

Speaker 1:
[36:10] Can I just ask a dumb layperson question? What does it mean that the judge dismissed the case now before it even went to trial? There's no realistic path for an appeal, right?

Speaker 2:
[36:20] It means that, you know, and judges will do this when the point of a trial is to find out facts and to see how those facts might influence a decision. So what the judge is really saying is, as a matter of law, there's nothing that's even possible here that he's going to win on. And here's the point, and this is why I went through that case, even if he can show Trump that the Wall Street Journal published falsehoods about him, let's just assume that. It doesn't matter because what you have to be able to show is actual malice, that they were intentionally trying to harm his reputation and publish falsehoods. And that's, there's no possibilities, she was saying, of that happening here.

Speaker 1:
[37:00] Okay, we got to take another break. When we come back, believe it or not, they found another way, this administration, to persecute transgender children because they're fighting so hard to keep those gas prices low. Back in just a moment on The Oath and The Office. Welcome back to The Oath and The Office. I'm Fugelsang, joined by Professor Brettschneider. Corey, the Trump administration pulled out of civil rights settlements that were backing transgender students. The Department of Education, which is still there, it's terminating settlements with different school districts, essentially requiring school officials to either comply with federal anti-discrimination laws or conflicting state laws. And this is all in line with Trump's executive order that the government only recognizes sex assigned at birth as a person's official gender, because these people believe in one thing, and it's punching down on minorities weaker than them. Now, the Education Department says there's no precedent for terminating civil rights settlements like this. How extraordinary is this move legally?

Speaker 2:
[38:09] Look, the executive order itself is arguably a contradiction with the requirement of the 1964 Civil Rights Act, its commitment to equality in terms of sex when it comes to employment, but also other protections, including Title IX. And I think it is deeply unprecedented, deeply problematic, John, because, look, the executive order, I think, is unjust, and we could talk about ways in which it's deeply misguided. But usually, executive orders are meant to look forward. But what this policy does is it interprets the executive order to rewrite the past and to go and undo past settlements against those who violated civil rights. And that's what's so unusual about it. And one of the problems with retroactive decision making is people have relied on those decisions. They've come to accept them. And going forward, OK, we can argue about that. But there's a particular kind of injustice, besides the abandonment of civil rights, that's part of the executive order that's so problematic here.

Speaker 1:
[39:15] Can a new administration just undo prior civil rights agreements? I mean, there's legal limits to that kind of power, right? He had to stack the courts before he could take rights away in the case of Roe v. Wade.

Speaker 2:
[39:27] I hope there'll be a lawsuit about this. We'll see. It's just an executive action at this point, trying to undo these settlements. There'll be litigation, I imagine. But I should say, too, regardless of whether that succeeds, the idea of the rule of law is that we don't change things after the fact. And that's what's going on here, this retroactivity of rewriting the past. Is, you know, fundamentally unfair, and it is certainly against the spirit of the law. And it's consistent with what this administration is all about. I have to say, too, it shows you one of the things we talk so much about is the danger of executive power. And here we have the executive really abusing its power, you know, circumventing the courts. It's not doing this through courts, just undoing what past presidents did. You know, that is an abuse of that power, but it also shows how massive it is.

Speaker 1:
[40:16] But, I mean, what are the constitutional implications if schools are effectively forced to choose between getting our federal funding and complying with their own states' anti-discrimination laws? I mean, this is bullying schools into bullying the most bullied of all children.

Speaker 2:
[40:34] Yeah, and I should say, too, I mean, to abstract out this administration's attack on transgender rights goes beyond what so many conservatives believe. I mean, there's an amazing case called Bo-Stock, which is about a different issue, but a related one. Does the 1964 Civil Rights Act ban on discrimination in employment apply to gay and transgender people? And, you know, conservatives like Alito said discrimination based on sex doesn't include transgender people, but yet the majority, led by Justice Gorsuch, said, you know what, sex discrimination and transgender discrimination are the same thing.

Speaker 1:
[41:10] Right.

Speaker 2:
[41:10] And here you see, you know, the opposite of that kind of...

Speaker 1:
[41:12] Here's Title IX now, right? Title IX is going to be the basis of the lawsuits then. I mean, you know, the prohibition on sex discrimination, that's going to be what the appeals are about, no?

Speaker 2:
[41:22] Yeah, I guess the administration's view is the opposite of what I just said, that, you know, that somehow protecting transgender people is sex discrimination. I don't even understand it, you know, but they are always reversing. They're making up down and down up. Think of what they do in civil rights. They took a law that was meant to be about racial subordination of black Americans, about history and the corrective to it, and made it a white rights bill. And, you know, look at the policies of the Department of Justice. So that's their game, you know, that they flip on its head what civil rights protections are supposed to be. So what would sensibly be interpreted as protections for transgender people become weapons against them. What was meant to be tools against discrimination for black Americans become weapons against them. And we really are seeing the reversal of civil rights by this administration. And here, again, not through litigation, not through courts, through executive action.

Speaker 1:
[42:17] Real men don't use power to beat up on people weaker than them. Real men use power to lift up people in groups that are weaker than them. And that's how we know these aren't real men. But let me close this out by asking Corey, what does this mean in practical terms for these transgender kids who are already, already in such a tough spot in a culture that despises them for being who they are, where the rates of mental illness and depression and suicide are so high, not because they're transgender, but because of how society treats them? I mean, will protections be weakened immediately, or is this going to play out slowly in the courts?

Speaker 2:
[42:54] I mean, I think it's grim in the near future, because if you think about it, you know, some of the most vulnerable transgender people are students, and they're in schools where there is an obligation of the school to protect them. And that's what these past settlements were about, schools that were failing to do so being reprimanded by the Department of Justice, and getting them to agree to respect transgender kids and to protect their safety is often what we're talking about. And here the administration, in coming in and on doing these agreements that are aimed at student safety, really are putting children at risk. And that's why, as is true of so many of the things that we're talking about on this show, it is the evisceration of many of the gains in civil rights and transgender kids that we had before. And schools are where a lot of this happens. They're contained environments. We trust, as parents, that the schools are going to be protecting our kids. And I worry that the immediate effect here is really putting people in danger.

Speaker 1:
[43:52] Well, Corey, I am grateful to you, as always, for talking me off a ledge on all these matters. And I want to ask, Professor, what is the best way for our listeners to follow you and keep up with your brilliance the rest of the week?

Speaker 2:
[44:02] Well, I'm so grateful to our amazing listeners. We have just consistently, we were top three last week in Apple Podcasts. Very nice. And we posted that, and the reviews keep coming in, the five-star reviews and the comments on Apple or Spotify or wherever you get your podcast. There's also a YouTube channel, The Oath and The Office YouTube channel, and a substack, The Oath and The Office substack. So find us one of those places.

Speaker 1:
[44:28] Right on. Professor, thank you so much. I want to thank everyone who puts the show together, Wendy and Beowulf. And of course, I want to thank all of our deeply attractive listeners. Please subscribe, please share, please tell your friends. And thank you guys so much for taking this journey with us. I'm John Fugelsang along with Professor Brettschneider, and we will see you next time on The Oath and The Office.