 time once again for Fridays with Corey. I don't know, it just doesn't sound as good as Tuesdays with Corey. I thought about whether we should, is it very important for the name to always do it on Tuesday? Because it's a good joke. I think it's funnier to do it on Friday and complain but it doesn't. It doesn't work. It doesn't work. Professor Corey Brechneider is a constitutional law professor. When the state speaks is his book. I started it last night. A couple of my listeners actually purchased it. The first chapter is about the First Amendment and speech. So I wanted to talk to you about that. I wanted to talk to you about impeachment, congressional immunity. And does a candidate have immunity? Can a candidate for office body slam a reporter, get arrested and not be able to campaign? But first you were in England attending a First Amendment conference. How was that? I was terrific. I was hosted by a professor at University of London, University College named Jeff Howard. And it focused on all the issues that we're talking about free speech on campus, the issue of incitement and how you deal with terrorism and issues of free speech. And it was really a great series of talks and discussion with a nice turnout too. It's in a weird building, really interesting building at the University of London that has the, I think it's the stuffed body of Jeremy Bentham who's like in the first floor. Was Jeremy Bentham kind of like the precursor to communism? No, I think he was sort of, it was an attempt in the 19th century to rationalize politics and to kind of get bias out and to try to base politics on empirical evidence. He's the first... Was it utilitarian? Utilitarian, yeah. That's sort of his contribution. He's kind of a founder of economics and he thought basically you should, you had a simple idea, you should make policy to always make more pleasure and maximize pleasure and minimize pain. And he thought you could kind of do that with an empirical formula about pleasure. Did he predate Marx? Yes, yes. Well, I guess they were, I have to look. They were both 19th century and I think they were contemporaries. They overlapped in their dates. And they have his stuffed body there. Yes, it's pretty odd on the first floor. University College London. I don't get that. I think it's, you know, he taught there and he's, you know, they always want him to be close. Something like that. That is, that is very creepy. Yeah. Great conference. Yeah. What was the most surprising thing that you learned during the conference? There was a lot. There was a terrific talk on free speech in India and how censorship works through a variety of different mechanisms, including Rushdie was banned through basically the law of tariffs and importation. Sam and Rushdie, the Satanic verses. Exactly. There was a fatwa on his head. Yeah. Because he, I guess, insulted the Ayatollah in Iran. Correct. And he was banned, I think under blasphemy laws in India, but they didn't do it by just outlying the reading the book. They did it by outlying the importation of the book. Kind of like the D.H. Lawrence ban in the United States. Uh-huh. I don't know about that. Is that how they did it as well? I think so. Uh-huh. Jeff Howard, who I mentioned, gave a terrific talk about how to rethink free speech and kind of arguing for, you know, England has a much more restrictive law of free speech than we do. And he was pushing in that direction why it is that maybe caring about advocacy of terrorism. I mean, this was before the events recently happened that it might be important to outlaw certain forms of advocacy of terrorism, not just not to have the strict rules protecting it that we have in the United States under the First Amendment. Did you hear anything that spoke to you about the virtues of censorship? Was there anything where you said, hmm, maybe... I should rethink it. Yeah. Well, his talk, I thought, was pretty profound. You know, his point was, and there was another talk like this, that speech has an effect, that the marketplace of ideas just left to work freely in the way we were talking about last time just doesn't always work. And you know, I'm still a defender of our jurisprudence, but recent events show the power of that kind of argument, I think. I was given pause by that argument and others like it. A lot of times I go for the national lampoon, let's shock for the sake of shocking you and you know it's, you know, I don't mean it. Yeah. Well, that's what I was saying. Last time we spoke is you were defending, I thought it was a very good discussion, but you were defending these restrictions. And I just started wondering how they would work given your profession and your willingness to floor the boundaries that they could easily, I mean, it's just something for you to think about that they could easily be turned certainly on comedians and that case about Hustler magazine that we talked about come out a different way under a different regime and that might have a, you know, career consequences for you. Yeah, I got spooked. I don't want to get into specifics, but I had a sleepless night last night because somebody spooked me taking one of my lines out of context, literally out of context. Certainly as a matter of censorship, I think if you put restrictions on viewpoint or on content when it comes to comedy that there's a danger that you restrict, you know, good stuff coming out or comedy that's meant to enlighten rather than to harm. Now, there is another example of that that really does push the boundaries and it's this comedian in France, you know, who is a racist and has this sort of racist salute and it really doesn't, to me, from what I have seen seem defensible or Charlie Hebdo actually in some of those cartoons. I don't think that they're defensible what what the cartoons are doing. And I know that they claim to be attacking religion generally, but they tend to focus on Islam in a way that makes me feel like skeptical about that claim. But I don't think Charlie Hebdo or this comedian that, you know, has been subject to potential hate crimes prosecutions that, you know, they should be imprisoned. Basically, I think that finding something offensive certainly isn't a good way to regulate. And even if it goes beyond offense, that it really attacks kind of core values of equality under law, not not in order to enlighten, but in order to punch down, that the right way to handle it isn't is an imprisonment. It's that we have other techniques that we have to be able to use. So yeah, I'm, you know, in this conference, I defended this rule on campus to complete protection for all viewpoints. But also being vigilant, even about certain kinds of really bad humor, you know, sometimes another joke in response might be the right response or sometimes criticism. Or don't laugh. Or don't laugh. Yeah. I know some comedians think even that goes too far. They're worried about PC culture. And I've heard comedians saying they don't want to perform on campus. And I could see the worry that that sort of condemnation of some humor can go too far. But other kind of extremists in France, those two examples that I gave show that, you know, you sometimes even humor is doesn't get a free pass. I think we've got to be critical about it too. And making jokes about a person who isn't famous. I'm not going. I'm not asking for. This was week one. Yeah, I know. But making jokes about somebody who isn't famous is unacceptable. Even if you take to Facebook or Twitter, so if you start attacking somebody on Facebook and Twitter, who isn't famous, they can then come after you for is it slander if it's written about them? Yeah, I mean, we were talking one of our sessions about that case involving Hustler magazine and the cartoon depicting a preacher as a drunkard, even though, you know, he wasn't and the question of whether or not that was grounds for suing under the libel laws or libel is written. So I guess Facebook would could be potential libel case. And there's protection in lying about public figures in a way there isn't about private figures. Are you a public figure if you take to Facebook? Yes, you know, that's like the Andy Warhol question, right? I mean, now we are all famous 15 minutes, maybe 15 minutes a week or something. So I don't know that I haven't seen that in the courts. It would be a fascinating question whether or not like somebody with a thousand friends who post once a week and has 30 likes, whether or not they're a public figure. Now, some people on Facebook have five friends and zero likes. So I think they wouldn't be, but that that other case might be a good one. I've noticed that there are people who are tried in the court of Facebook opinion. There have been some accusations, criminal charges against certain people. They're probably true. And it's to some degree, people are going to the court of Facebook opinion, because they feel this individual won't be prosecuted in the courts. How do you for a shaming? Is that what you're thinking of like cases where somebody is shamed for being a sexual harasser? Yeah, yeah. Huh, that's interesting. I mean, you don't have due process in those cases. It's not criminal punishment. So the war, you know, the rights question isn't as severe as it is there. So doing that does raise due process issues. But on the other hand, the consequences aren't as bad. I don't know. We'd have to talk about a specific case, but I can imagine in an egregious instance where there was a worry about, you know, the danger that somebody posts, the same way you might tell a group of friends that you might tell your Facebook friends about that person. I think that might be defensible. And then you can imagine the other extreme where somebody who's really innocent is, you know, libeled and their reputation is destroyed by a kind of mob mentality. So these, you know, these questions are always in the details, I think. Right. I'm surprised we're not saying more of that. A case, there doesn't seem to be a case yet going to the Supreme Court involving Facebook and Twitter and libel, right? There have been certainly some Facebook cases. I'm just trying to remember what the most recent one was. Yeah, I'd have to look, but that could be something that I could look into for an action. Right. I mean, it just seems, it seems that, and I always have this who cares attitude. I always say where there's smoke, there's fire. If you, if somebody's making an accusation, there's probably some truth to it. You probably did something that you shouldn't have done. Then I always go to better a few men go to prison then. Right. Then a couple of innocent guys walk free. Right. You got that balance wrong. We flipped that around. What's the original saying? It's something like better that 10 guilty men go free than one innocent goes to prison. And that's why we tilt our system of justice, the presumption of innocence. Because I always said with Clarence Thomas, yeah, better a few men have their lives destroyed so that the rest of us learn how to behave. Right. Right. I mean, what's interesting about the question you're raising now is it isn't that question. You know, I'm, I think that's right. You want to design a system of criminal justice in a way that really has a very strong presumption of innocence. And that takes away the very real possibility that people will be prosecuted for things they didn't do. But now when it comes to criticism, there's a little more leeway, you know, and it's not the same as imprisonment. Now that isn't a free pass. John Stuart Mill worried about punishments, social punishments like shaming, because he thought they could have the same kind of punitive impact of social isolation that criminal punishment would. But it's certainly on a scale, I think, less awful than having your liberty deprived. And there might be more leeway for, you know, not exactly that 10 to 1 formula that we think of in criminal justice. There's a special election yesterday in Montana. Right. And a Republican candidate, Greg, I don't know if I'm pronouncing this right, Greg Gianforte, they say he reportedly body slammed a reporter for The Guardian, Ben Jacobs. But if you listen to the audio, it's probably worse than a body slam. It sounded as though he was punching the reporter. Can you arrest a candidate for high office, a sitting congressman? And why is it a bad idea? What did our founding fathers think about arresting Congress people and candidates? Maybe there's an argument to the contrary, but I think that's an easy case that just because you hold an office, it doesn't make you immune from the law. So if you violate it, if I listen to the audio, too, it seemed like a clear assault, basically. Allegedly, I guess I don't know the full facts because I wasn't there about listening to the audio. And if that was, if it turns out that this was just a straightforward assault, the fact that he's running for office doesn't immunize him in any way. And, you know, there's no reason why he couldn't be criminally prosecuted. And the same is true, even if he was a sitting congressman. There are some protections. There's something called the speech and debate clause that protects at a pretty high level what's said in parliamentary debate, for instance, by sitting congresspeople. But they're not in any way immunized. And neither is the president, by the way, from criminal law. My readings of the Constitution, my understanding is that our founding fathers had a fear that congressmen could be arrested to keep them from speaking in the well of the Senate or speaking in the house on a bill. Are there any protections against that? There are two. There's something called the speech and debate clause, which immunizes the speech, basically, of members of Congress from being subject to prosecution. And if they're talking on a public matter, for instance, and it's like the discussion we're having earlier, and they make a mistake, I think that does immunize them in certain instances. There's also this strange, which this congressman maybe had read and misinterpreted to think and applied to him, this clause of the Article 1, Section 6, that says, the senators and representatives, shall in all cases accept trees in the felony and breach of the peace be privileged from arrest during their attendance at the sessions of their respective houses and in going to and from the same. But the courts, my understanding, have just narrowed that clause so that it actually doesn't immunize congressmen from being arrested for, say, assault. And certainly it doesn't immunize, even in the plain language, a candidate for office. So there is this sort of worry, I think, about political arrest and prosecution. But at least in our system now, the rule of law takes precedence. I don't know if there's anything left from that clause, but certainly it doesn't immunize a congressman from being prosecuted for a crime. A political arrest could be a president arresting a senator or a congressman, which you can't do as president, but you do have a Justice Department and an FBI. Can the FBI arrest somebody? I mean, if you, yeah, if you commit a crime, you can be arrested. Now, I mean, what were they trying to get at? I guess that, you know, think of the crime of sedition, of speaking out against the president. Now, under our current First Amendment law, you have a right to criticize the president, but imagine some interpretation of the First Amendment that allowed congressmen to be arrested for criticizing a president. I mean, these are all hypothetical, but I wonder if that would be a way of resurrecting the clause. But, you know, in normal criminal prosecution, where there's not any of these issues that are not at stake, there is no longer and not an immunity from prosecution. This congressperson, a candidate for office, sorry, you know, he's out of luck, I think, as far as the law is concerned. Worst case scenario, I'm the president of the United States. I have a flunky, as my attorney general, I have a flunky as the head of the FBI. The FBI could arrest people. Yeah. I, as president, can't order somebody to be arrested, but I can instruct secretly the FBI to arrest somebody, right? Well, I mean, you know, the whole issue in the current controversy over firing the FBI director is whether or not the president was acting in an improper way to, in that case, impede an investigation. Now, a president should not, under any circumstance, be dictating to law enforcement who to arrest or not for political reasons. That's not their prerogative. It's supposed to be an independent decision. Now, you know, some people have focused on whether or not the president would have been breaking the law in impeding an investigation, in the sense that he could be subject to criminal prosecution. And I think that's a pretty interesting issue. But the question of impeachment is not that. The question is whether he was doing something that really impeded him from the kind of independence that he's obligated to as the president of the United States. So even if his action towards Comey wasn't a criminal violation, it could have been the kind of high crimes and misdemeanors political crime, you might call it, that the founders were focused on. It isn't a legal issue impeachment. It's one that involves a political decision about the fitness for office and how severe a violation took place. It's a political decision, not a criminal decision. It's not even a constitutional decision. It's a decision that the House and the Senate have been authorized by the Constitution to make. And there's a standard, high crimes and misdemeanors, but no, that shouldn't be understood as, you know, a felony or some criminal violation. It's a distinct, distinct thing. There's a terrific article by a colleague of mine named Keith Whittington in the Washington Post that discusses this, and I highly recommend it. And this is an expert on the history of impeachment. And that's his argument that I fully endorse. You know, we shouldn't view the oath as just mandating obedience to the law in a narrow sense. The oath obligates the president to the role and the constitutionally delegated role of president. And he's violating that role if he tells the FBI director to stop investigating him. I turn on MSNBC and it's, we got him. Today we got him. Yeah. He's, he's gone to prison and they're going to give him a chair and that's how it's being presented to us is smoking gun, we got him. And what you're saying, this is not going to be a criminal prosecution. It's going to be a negotiation. It's going to be the Republicans deciding whether or not he's politically viable. That's the only way he's going to be thrown out of office is the Republicans have to decide before the midterms whether or not he's a political liability. That's all this is. It's the court, it's the court of public opinion. I'd say it's partly that that just realistically, yes, there is no impeachment without the Republic, some Republicans, not all of them, by the way, but just a small sliver of them to stand up and say, this is unacceptable. But what I don't think is right, and I want to make sure that my views distinct from it, is the idea that it's just politics in the sense of, you know, we hate this guy, let's get rid of him. I don't think that there is an obligation of the political branches to use a principle. And the principle is it's defined by this phrase, high crimes and misdemeanors, but what it really means is something like what the 25th Amendment says, unable to carry out the Constitution or unwilling or, you know, deliberately indifferent to the requirements of the Constitution. Now the President is not supposed to be in the business of retaliating against political opponents or, in this case, impeding investigations against his own wrongdoing. And if he's done that, and that's an if, but if it turns out, then they're obligated, I think, to use impeachment in order to defend the Constitution. That's how it works. So the fact that it's not a trial in a court of law doesn't mean that it's just up to the political branches to do what they want. They also have constitutional obligations. Nobody should body slam a reporter. Right. There are laws against this. However, you bring in the lawyers, you bring in the police, you play that audio tape. To us, Greg Gianforte, the guy running for Congress in Montana, who did this, not allegedly, you listen to the audio, it's obvious. But if it gets into a courtroom, they're going to say, this reporter provoked me, he threatened me, and he won't go to prison. There are things that should be and there are things that are, and if I'm Donald Trump and Steve Bannon, Jared Kushner, I'm going to say, just fight, fight, fight, fight, fight, they're not going to impeach me. There are things Trump should be doing, but he doesn't have to. And if he just fights, there's no way to get rid of him. Maybe. You know, the Republican Party, and I hope that this comes up again, has a long tradition of caring about the Constitution. It's not too long ago that the Tea Party's main thing was, you know, careful reading or a strict reading of the Constitution. And I have to believe that there are some percentage of members of the House of Representatives elected by the Republican Party who still care about the Constitution. And if that's right, and I'm sure it is, they've got to find the strength and the courage to stand up and say, if, and again, it's an if, the President was deliberately impeding an investigation of himself by firing the FBI director, then that's an impeachable offense. That's their obligation. And it's not about party, it's about this other thing. You know, to go back to the Saturday Night Massacre, which keeps coming up, there were, you know, Republicans that stood up to Nixon. And partly, I think, Elliot Richardson, for instance, cared about the Constitution. But he also cared about the preservation of his party. And maybe that's the other thing that will get them to vote for impeachment eventually, is that the Republican Party cannot survive if it's just the party of Donald Trump. It is supposed to be also, like the Democrats, a party of constitutional principle. The more I listen to you, the more I realize he ain't going anywhere. I wish you were right. Everything you're saying is right. You stand for the Constitution. I don't think the Tea Party ever stood for the Constitution. They were AstroTurf. They were set up by the Koch Brothers just to challenge Obama and the stimulus package. I do another show with a guy called Dan York in New England. And listeners can find the recordings of them on my website, CoryBretzschleider.com. And, you know, I think it's fascinating because a lot of his listeners were Tea Party people. And a lot of them were tempted to vote for Trump. And I think a good portion did. But you'll hear on those tapes, you know, I just try to engage them on the level of the Constitution. If I talk to them as a Brown professor or as a Democrat, we're not going to get anywhere. And in fact, that's how the conversations often begin is with them slamming Dan for having this liberal Brown professor on. But if we just talk about, as you and I often do, too, the Constitution, they sometimes can be won over, you know, because I think there are some percentage of people, including members of the House, who really care about the foundational principles and are not just a Trumpist nationalist. He does not, I should say. I am absolutely convinced. I don't think there's a question about it that he does not care at all or know much about the United States Constitution. But I know there are some members of the House who do. There are some members of the House who do, but not enough to stand up for what's right. I just don't. I know that Nixon was up against a Democratic House. There are circumstances that were different. And, you know, you would have to win over some percentage of Republicans. But his look, yeah, there is the kind of real politic part of this. And his rating, his approval ratings are tanking. And the lower and lower they get, and especially in districts where there are Congresspeople, Republicans who are being threatened in the next midterm by Democrats, I think they've got to sort of think to themselves, both from a principled perspective, the ideal that I'm talking about, and also from a self-preservation perspective, it might be time to jump ship. By the way, he's threatening some of these people with going after them if they oppose them. I don't see how, you know, you could have dignity and not stand up to even the president if he talks to you that way. So we just need a sliver of them. And I, you know, assuming again that the investigation goes the way that it might, which is that he was impeding this investigation. And then, yeah, they're obligated to stand up. The FBI is an independent police organization, but they're part of the executive branch. Right. They're not part of the judicial branch. Right. The FBI director does answer to the chief executive. Well, he answers to the attorney general, who is part of the executive branch. But as you saw in the instance earlier on, when the decision, remember, in the travel ban case was made by the acting attorney general to not defend it. That was what she wanted to do. What Sally Aitz was saying at that time is that, you know, she doesn't work for the president in the sense that he can direct her to legally do what she's going to do. She has an independent obligation to uphold the Constitution. And she wasn't going to defend something that was clearly unconstitutional. Now, in this case, it's a similar sort of issue. The attorney general and the FBI director have an obligation to not use law enforcement for political purposes. They don't do the bidding of the president. He can't direct them to do something that's illegal, for instance. So are there are there specific laws? Are these norms or these specific laws? I think they're norms. They're largely not the impeachment norm. People are arguing about this. There's a question about whether he obstructed justice, which is a legal question and a question of prosecution. And that's one question. But I guess what I would say is, even though that is an issue here, apart from that, there is a question of what I would call constitutional norms. And you don't you don't direct the FBI to do your political bidding. And that's impeachable, if you do, it's impeachable. But again, I'm going to be Steve Bannon. And I'm telling Donald Trump, all you have to do is stand your ground. The mistake that Nixon made was he released the tapes, he let them listen to the tapes, stand your ground and nothing will happen. Well, I mean, that, you know, now we're now we're going to have a big disagreement, because if he would have done that, that would have been a true constitutional crisis. In fact, when we talked earlier about obeying judicial orders, the Supreme Court of the United States ordered Nixon to hand over those tapes. And the fact that he even paused for a moment, he did turn them over. But at there was a question during the proceedings, whether he would. And that was part of the first order, part of the Articles of Impeachment, the article, the argument against him that I'm sorry, I should say it was part of the argument against him for impeachment, that he was threatening to undermine the judiciary by threatening to disobey judicial orders. If Trump really refused to obey the court's outright, that is up there with the most impeachable things he's done. It's certainly on my view cause for impeachment. And why did we decide that the Supreme Court has primacy over the executive branch? Isn't that a separation of powers issue? That was decided in a case called Marbury versus Madison, which is about judicial oversight. And the ultimate being the ultimate enforcers of the Constitution. Nixon famously said when the president does it, it's not illegal. He was wrong. President can do all sorts of unconstitutional things and it's the role of the court to stop him if he does or her. And that's a core, maybe that core idea of our constitutional system. So in Marbury versus Madison, they say that the final decision rests with the Supreme Court in any conflict between the three branches of government, the Supreme Court will always win out. I think that's probably putting it too strong. And there is an idea that Jefferson had of what's called departmentalism, that the president has also a role in thinking about the Constitution and an obligation to enforce it. But I think that Marbury, although it's a very interesting case in that it is really about the court refusing to accept more power than it was granted by Congress. They strike down an act of Congress expanding their power, which is a sort of weird use. But at the same time, what's famous about the case is it's clearly a statement about the court's ultimate role as the interpreter of the Constitution. And later cases, I think, make clear that when the executive does something that directly conflicts with the Constitution, and it's in the area, like, for instance, judicial proceedings in the example of the tape, that the court has to be listened to and has to be deferred to. So no president can defy, and I don't think any president ever has defied, and we could look into that, a direct judicial order. That's an impeachable offense. And if he did that either in the travel ban case or does that in the future, then that is, in my mind, clear grounds for impeachment. Right. There's the famous quote from Andrew Jackson. Right. Yeah, he never disobeyed a judicial order. He's talking about this case involving the Trail of Tears that didn't involve the federal government. He's commenting on it. But he's not saying that I'm going to disobey a judicial order. And to my knowledge, he never disobeyed a judicial order. So when Bannon and all these other people sort of try to use that as an example as a precedent for what Trump might have done in the travel ban case or might do going forward, I think they're just wrong on the history. The court doesn't have its own police. They cannot, as Jackson said, enforce their rulings. Right. Which is why they have, I guess, supremacy, because they're the moral arbiters. But it's also why it's so delicate. You know, that's why I'm kind of, this is the kind of thing that only a constitutional lawyer maybe gets really emotional about. But if you think about it, what is it that makes the system work? The courts do not control the military. They do not control the budget in the way the Congress does. They're not the commander in chief the way the president does. It's the norms of obeying judicial orders. That's what keeps the constitutional system operating. And if you have some, I don't know, I'll try to use a more measured term, some president who doesn't know the norms, who doesn't understand the constitutional system, and he does something which is unprecedented, which is outright defying judicial orders. That actually is such a big deal, it threatens the collapse of the system. And it's not something that I think we can allow. I'm wondering about the levers of power that the executive branch has to act at the will of 38% of this country who want Trump to drain the swamp, punch reporters. And I'm listening to you and I'm thinking, well, it sounds like the Constitution does give the president all the buttons he needs to push for tyranny. It's there. Oh, yeah. That's what's so scary. He has been pushed back. But if you think of how it's by courts, and it's by advisers telling him he better listen, and if there are people pushing him in the other direction they haven't been listened to. And the reason why all this matters so much in these first few months have really been a victory for constitutional democracy is because the founders, people think they're paranoid about it, but now we know from this example that they're not, that the executive is so powerful that he or she could topple the entire system. They could become like a dictator or king. And in fact, if you look at constitutional regimes around the world, that sometimes happens. That a so-called president becomes a dictator. And that's a real risk here. It has been. I mean, it didn't go that way. The Wall Street Journal has sort of been criticizing people for being overly paranoid about the threat of dictatorship. But the fact is that we haven't gone anywhere close to that direction because people have used the institutions. And the ACLU and others have sued the president and stopped him from doing what he wanted to do. And it's a big, big deal. People might be bored of the details of the travel ban case. We've been talking about it at length. But that is a big deal, not just because of the issue, but because of the separation of powers and the fact that the executive has stopped the president in that area. Talking to you, I realize I'm not helping by saying, I don't see him being impeached. I don't see Republicans having the fire in their belly or the moral compass to throw him out of office. Listening to you, I truly understand that we're at a point of conflation between politics and law. It's where the two things come together. And unless the people stand up for the rule of law, we're going to lose it. That was beautifully put. And you know what you're saying, I guess, echoes a lot of the sort of way that we're used to talking about politics in this country. That, you know, what are the Republicans going to do? It's the horse race. It's prediction. And that's fine. You know, you have to do that. I don't want to be naive. And that's why I did that with you. But we've also got to think about the principles. And in this case, the stakes are so high that I think impeachment absolutely has to be on the table in order to prevent the possible slide in the direction that has not happened, but that there's no reason why if this president got more popular, more successful and more emboldened, why he wouldn't necessarily go in that direction. And the wearing down of the public will is what people like Steve Bannon want. In other words, when I say to you, Trump firing Comey is legal, there's nothing we can do about it, right? I mean, theoretically, you could just keep insisting he's the president. He can do that. This executive branch, I do think, you know, I have to we all not just me have to think more about this and learn more about the facts. But there is a there are statutes that prevent as criminal statutes that prevent the obstruction of justice. You can't go in. I mean, let me give you just an extreme example. That's not an issue here. You can't go in to the police officer that's investigating you and say, if you keep looking into my case, I'm going to come after you and your family and, you know, do crimes to you. Or that was a weird phrase, do crimes to you. I like that right threaten you. I can't, you know, you can't threaten somebody who's looking to arrest you or to investigate you. And if the president did something like that, then it doesn't matter that he's the president. You can't do that. It's just you can't obstruct a criminal investigation. Now, did that happen here? It's not clear. But even if it didn't, what I'm saying is we have this other concern about upholding the Constitution. I'm a senator. I'm a congressman. On the floor of the Senate, I say something horrible about person who isn't a public figure. Can I be sued? It's an interesting question. Like in the speech and debate clause, imagine you're talking about somebody in Congress on the floor of the house that's not a public figure and you libel them. An interesting kind of inquiry would be whether or not you get more protection for that speech than you would under the normal First Amendment rules. And you might. I think that's a good, very interesting issue. Because I would run for Senate just for the right to go after Howard Whitaker. Oh, okay. There's a guy named Howard Whitaker who I would just like to slander and libel for the rest of my life. It would be worth having to be a senator. I should say, as usual, it's a hypothetical question. I don't know Howard. And I don't know that you'd even get the protection, right? Because the speech and debate clauses I think meant to protect speech about public matters. And if you were just getting up on the floor of the Senate and libeling somebody who's a private figure, it is an interesting case. But I'm not sure that you'd get more protection than you would under that. Right. And the president can't sue a senator for saying horrible things about him. You know, I did want to say something about this body slam case that sort of brings us back to our first topic, which is the issue of, you know, something is going on in this country where people are acting in a way and saying things that are so beyond the norm. I mean, the idea that somebody running for office is involved allegedly in an assault. And at least even if it's not an assault in a kind of act of violence with a reporter, these videos of people saying racist things in stores and anti-Islamic things. Part of the Trump era is about the specific constitutional issues that we're talking about. But in the book, I mean, which you brought up in the beginning, one of the things I'm worried about is, you know, in a regime that's so protected by in a nation, it's so protected by the First Amendment. And again, I love the First Amendment and the free speech protection of all viewpoints. It could allow for the what I call a hateful society to evolve as a matter of norms, that it would protect all sorts of views that could become what could lead a society to become against the basic ideas that are also in the constitution of equality of all under law. And I worry that not just one story, but all of these add up to that kind of norm erosion. And, you know, the government has to find other ways of fighting back. We don't have the ability to just outlaw racist views in this country. But if we're not going to outlaw them, I think we need to find other ways of pushing back against those that norm erosion. The really frightening thing about this Gianforte, when he issued his denial, he referred to the Guardian reporter as a liberal journalist. Oh, wow. Can I sue a sitting president? Could I do a class action suit against Donald Trump? If I find that the Republicans just aren't performing their due diligence, could you and I form a class action suit against a sitting president? There were ongoing lawsuits about Trump University, for instance, and that Paula Jones law case makes clear that they don't stop just because somebody gets the presidency. And the president is too busy argument or the president is above the law. None of those arguments have ever been rightly accepted by courts, and they shouldn't be. So if there is a, you know, we'd have to think about what this lawsuit was. If you're asking whether we could just sue the president for being bad at his job, I'm not I'm not sure about that. But certainly these other real cases involving fraud, for instance, the president is not immunized as a result of his office. Paula Jones and Trump University were civil suits that predated their presidencies. Right. I don't think we've ever had an example of a sitting president sued for what he did while in office. Isn't it kind of accepted that you can only sue a president after he leaves office? You can't know. And in fact, there is an ongoing suit that's extremely important that we haven't mentioned. I don't think on this podcast, but that we should spend time talking about involving the emoluments clause. And what the emoluments clause says is that the president can't benefit from foreign governments. And there's a domestic component to that, too. And what this lawsuit is worried about is that because the president has not has not really distanced himself enough from his own assets that things like his hotel in Washington, which are being visited by foreign governmental dignitaries, are benefiting him in a way that violates this emoluments clause. And this is a really serious lawsuit brought by some of the top constitutional lawyers in the country, including Lawrence Tribe and my friend Zephyr Teachout. And you know that suit, we have to keep a close eye on it. It certainly does concern ongoing actions by a sitting president. And you know, I think they've got a really good claim there. Again, we've learned today that you can't be cynical. They want you to be cynical and you have to speak up. Yeah, can I just say something about that, David? That point, I just thought was kind of for me, anyway, was profound because what you were doing is so common by so many of my friends and people who are on television and who are on radio is to just sort of say, you know, well, we can't we can't beat them or we can't do this because the political situation is such that it's not not achievable. And I think that while it's important to be realistic, we also have to talk about what's constitutionally required of us. And then we have to demand that the Republicans and maybe a sliver of them is all we need to their duty. That's what's happening in these town meetings, for instance. And you could see them rethinking, you know, their absolute support for the president of the United States. And there are ways through persuasion, I think, to get us out of that mentality of acquiescence. If Trump were realistic and the Republicans were realistic, Trump wouldn't be president. Right. If we were if we were realistic, we wouldn't be giving tax cuts to the wealthiest one percent. Here's the thing that was not realistic a year ago, that a reality TV show host with no experience in government, who knows absolutely nothing about the basics of our constitutional system, including as I argued before, I think how a bill becomes a law is going to become president of the United States. It's just seems not realistic. And this guy imagined that it was realistic and he pushed the boundaries and changed them for the worse. So we've got to start doing that too, I think. And, you know, using our imagination, talking about things that don't seem immediately possible and imagining the future in a kind of broader way. The Supreme Court doesn't have a town hall, but they do take the temperature. Yeah. Certainly on gay marriage, they take the temperature. Had there been just this outrage to gay marriage where it was unacceptable by a vast majority of Americans, is it Obergefeld? I can't pronounce. They would have ruled differently, right? I like that phrase, take the temperature. I think that they're aware of politics and some decisions are informed by it. But their obligation is to not be partisan, certainly, and to be independent. But, you know, I don't know, the healthcare case is a good example. The fact that Roberts voted to uphold the mandate and to leave at least the basic structure of Obamacare in time. I have to believe that part of that was informed by a realization that had they struck down the entire piece of legislation that there would have been a backlash that would have really threatened the court's legitimacy. So, yeah, the court has to be realistic about the fact that it has to keep its currently pretty high level of support and that it can do things to undermine its own legitimacy. Well, this has been amazing once again. Let's talk about your bike trip. Okay. Was it through Normandy, Burgundy, Chablis? Burgundy. We started in my French is non-existent. But after the London trip, I met my wife in Paris and we went down to Burgundy and we rented bikes there and we had an amazing experience just biking around for a few days. Terrific. Did you do digital detox? I thought of you because there was there were things happening and I thought he's going to want to fly home. Well, in our email exchange, you asked me if I could put my mic in the saddle back. And I didn't think about it. Were you able to let go? Yeah. No, we just we're not really on email or any of that stuff. Be honest. What's the longest period you went without email? Four hours. And it feels horrible, you check. Yeah. And it's like somebody's putting sandpaper to your insides, right? Yeah. Yeah. I mean, I thankfully was not like doing it at meals or anything like that. There was a guy we had like this kind of amazing meal in Burgundy. One of these just really beautiful French meals and there was a guy in the middle of this pretty nice restaurant taking phone calls. So that I didn't want to be that guy. He was doing it in Spanish, which was kind of, you know, he's a Spanish guy, but yeah. And the French allowed that? It was really uncomfortable. They were clearly very bothered by it. But the format was a pretty formal restaurant. And I think they were trying to figure out like, does the formality keep us from criticizing him? Does it demand that we criticize him? And there are only maybe 10 people in the restaurant, but they did not say anything. They let him. He also did a thing that I both was bothered by, but thought was pretty funny, which is it was a former Abbey, the restaurant. And he kept playing on his iPhone publicly for the restaurant, Gregorian Chant. So that was really odd. That was rude or funny. Dining in France is a religion. It's sacred. And rightfully so. Sitting down and having a meal together truly is a spiritual experience that the French get, the Italians get. I'm surprised that they put up with that. Yeah, I think this guy was deliberately trying to, I don't know, mock this, that how solemn, solemn it was. And yeah, it started talking. But he was being really nice to them at the same time too. He was sort of, I don't know, it was like this very interesting rebellion. He was introducing himself to everybody. He wasn't a mean guy, but he was mocking the formality of it, definitely. Well, we learned a lot today. The thing I learned, I'm just going to repeat it because this has been very valuable for me and the listeners. The thing we learned today is you can't be cynical in order for a rule of law to sustain. It's the role of the citizenry to hold not just our lawmakers, but our judges. We have to hold their feet to the fire. We have to make them enforce not just the laws, but the norms and what's acceptable. We have to speak out and say, this is acceptable. This isn't acceptable. The proto fascists want us to throw up our hands and say, there's nothing we can do. Yeah, well said. Not really, but I'll take the compliment. And I appreciated that exchange. No, you kind of, I mean, in a way that's sort of trying to resist is the cynicism. And you saw that and I really do appreciate what you just said. One of the first people I interviewed on the show was the late Tom Hayden. And for some reason, they don't teach the Port Euron statement. It would be good for us to talk about at some point. Yeah. And he said to me, you know, you sound really smart when you're cynical, but you're not smart. And they want you to think you sound smart when you're being cynical. They want you to be cynical. And I never forgot that. And that's beautiful. Yeah. From the important person. And, you know, when you watch television, I just really, I mean, I just can't believe the degree to which people are doing this horse race thing. And, you know, over the summer, when, when, before I knew you, but while I was doing a lot of this radio show, what I loved about Dan York and still love about him is that he just doesn't do that. He doesn't just sit there and say, who's up? Who's down? It's such a banal, boring and unscientific way of talking about politics. Politics is about aspiration. And if you turn it into this lame horse race thing, I think you just miss what it what it's supposed to be about. And other people have figured it out. By the way, Donald Trump realizes that it's not about what's realistic. It's about what you make possible. And that's why he's unfortunately doing is gotten to the position that he's gotten to. Right. And cynicism is intellectually lazy. It is. Yeah. It's a very lame way to. You'll come back next week. I didn't push you away. Love it. OK, great. Thank you. I've been pushing so many people in my life I've pushed away. Not me. No, not at all. I had a sleepless night. I there were a couple of jokes that I told just for the sake of shock. And I'm thinking I need to rein it in. And I did get my wake up call about the First Amendment. I've been very glib about censorship. But suddenly it applied to me. And I thought, hmm. Well, as I often said, you know, you are in a perilous business. You could offend people. But it's also the case that people are not going to listen to just, you know, academics talking in the abstract. You need people to connect. And humor is in our culture the number one way that people connect. And, you know, so it's great. This combination of comedy and also extreme seriousness and, you know, depth about issues. So I really, again, appreciate it. And I want to thank our listeners. I would have done this regardless. It's heavy lifting. The structure of the show is such that I put the heavy lifting on near the end. I start off light and fluffy and fun. I was pleasantly surprised by the vast number of listeners who enjoy this are asking me to put it on earlier. There are a lot of great listeners who, yeah. And I've seen it on you on Facebook and Twitter. And thanks for listening. I appreciate it. Yeah. Well, thank you for doing this. And as my mother says every week, you don't deserve them. She's of two people. She said, you don't deserve Obama. And you don't deserve Professor Corey Bretschneider, author of When the State Speaks. Okay. I'm a huge fan of your mom. Thank you. I'll talk to you next week. See you.