 Yes, I just cleared my throat, that's a technical term, clearing your throat. But don't worry about that. You just stay with the Constitution, I'll handle the radio stuff. It's Friday morning, so once again it's time for Tuesdays with Corey. Corey Brettschneider is a constitutional law professor at Brown University, his author of When the State Speaks. He holds a doctorate in political science from Princeton, a law degree from Stanford, a master's in philosophy from Cambridge. But if you ask Corey Brettschneider what he is most proud of, it is that I, David Feldman, once told him about the time I had lunch at Jerry's in the Valley with comedy writers Jay Cogan and Lou Schneider. And if you behave today, Professor, I will regale you with more stories about my lunch at Jerry's in the Valley with comedy writing legends Jay Cogan and Lou Schneider. What did they order? I've already told you that three times, they ordered the Max Alexander. Jay Cogan had it with the coleslaw in the sandwich. Lou has the coleslaw on the side. Okay. All right. Listeners know that once a week Professor Brettschneider wastes his time coming on my show to filter the day's events through the prism of our United States Constitution. This segment is becoming increasingly popular, partly because Professor Brettschneider is what I call a public intellectual. He's just as comfortable writing amicus briefs on the travel ban for the Supreme Court. He's just as comfortable doing that as he is wedging body narcissistic puns in between my serious observations about the fragile state of our rule of law. Welcome Professor Corey Brettschneider. Thank you, David. Pleasure to be here. At least it has been so far. We'll see how it goes this week. Okay. I hope you're going to keep it clean today. Yep. Absolutely. Well, after the whole water park digression, my daughter, by the way, says she doesn't care that we're going no matter what. So thanks for that. It's going to be really pleasant. You know, I miss the kids when they were small, but I don't miss having to do that kind of stuff. Well, it's all great, actually. I mean, are you going to have to like get into a bathing suit and go down a slide? I love it. I love water parks. Just ruined it for me a little bit. But according to Comey's testimony and the salacious material that he had to tell Donald Trump about, Donald Trump may be interested in water slides given the uric acid in water because people urinate in pools. And apparently Donald Trump, according to the word is that the Russians had something involving Donald Trump prostitutes and urine. Let's get to that in a second. But the big story is my divorce. I know the travel ban, but let's eat our vegetables. I want to get to Comey's testimony. You have stayed on top of a travel ban. You are partly responsible for the circuit courts rejecting Trump's executive order travel ban, too. Where are we with the travel ban? Why is it important to stay on top of the travel ban? There is travel ban fatigue in this country. We want something fresh and new all the time. Right. Well, I mean, to me, it's a signature initiative. If you remember when he campaigned, I think one of the ways he drummed up populist support of the worst kind was by promising a total shutdown of Muslims being able to come into this country. And then he tried to deliver with this thing. And what I think is important about it and the reason why I keep talking about it endlessly and don't tire of it is because it's not just about this one executive order. It's about his bigotry. And now we're at the point where the entire panel of the Fourth Circuit has basically agreed that this policy, and I think it's a deeper indictment of his motives generally, are all about animus, anti-Muslim hatred. And so that's not a small part of this presidency. It's what makes it unique and scary and really different from anything that's come before is the amount of outright bigotry in the modern world that this president has shown Muslims, Mexicans, go through the list. Well, we've had bigots as president. Yeah, that's true. I mean, but they were products of their time, I think, in many instances. So it's not surprising that you had bigots in the 19th century. But what's odd about him is that the world has moved beyond that, I think, and he has not. And to elect somebody with those views at this point in history, I think, is really a travesty to a suggestion, maybe, that we're backsliding. But it's it's not normal. I don't think in the modern world. Through the prism of the Constitution, is it against the law for the American people to elect a bigot? Or do you have to wait until he does something that is proven to be prejudiced and bigoted? You know, as a private person, he can believe whatever he wants. He has the First Amendment right to his beliefs. And as a private citizen, he can say what he wants. But what he can't do, and that's just one element of this case, is make laws based on bigotry. That's a core part of our Constitution. He also took an oath to uphold the Constitution. That's the meaning of the office. And so I think to the extent that the bigotry gets in the way of his ability to uphold the office, that we have to really think about whether this is somebody who's qualified to serve. You know, you don't have to commit a crime to be removed, but I think it's not just one thing. This is among others. That a president who repeatedly acts on bigoted motives, this is one example, but there are others. I think that's part of the charge or the argument for why he should be removed. I'm not trying to be glib here. Yeah. I don't have to try. Just comes naturally. The Republican Party is essentially a party of bigots. And a lot of their legislation, especially on the state level, the gerrymandering that goes on. We've seen this in North Carolina. They pass laws to prevent African-Americans from voting. You have a Supreme Court justice who ruled, I think it was like three years ago, the Civil Rights Acts, which placed certain states from the old Confederacy under the jurisdiction of the Justice Department when it comes to voting. They ruled that that no longer should apply because there's no more bigotry when it comes to voting in this country. Unless you ask African-Americans, that seems true, unless you see the lines for black people voting. And I've heard that argument before, that he's not really different than most of the Republican Party. And there are people who say that. Certainly there are Republicans who I don't think are outright bigots and who have opposed his policies. I'd like to see them speak out more. But I also think that while you're right about, for instance, Shelby County, I don't agree with that decision, it's very different than they have a theory. They really, all they say in that opinion is that the rationale for who is covered and who is not under the formula of the Voting Rights Act has to be revisited and updated. I don't agree with those arguments, but they're not as extreme out of the park, not just unconstitutional, but also bigoted as the travel ban. I mean, these things that you're talking about might not be as progressive on race as you and I want to be, but that's different than being a bigot of the pre-civil rights era kind. And that's what I think the travel ban is. At least in the campaign, we could talk about the continuity between that proposal and the ones that have happened now. What he did was shocking, should have been shocking, to America. It was outright saying that he wants to discriminate against Muslims. And that's very different, I think, than not as good as they should be policies about race that the Supreme Court used in the Shelby County case. Now, you're right about voter suppression and targeting African-Americans and voter suppression. That's inexcusable as well. But I guess would make the argument that this is at a different level. I mean, what he's done is he's changed the national discourse by making it okay to be bigoted, racist in an explicit way. And I think we're seeing more of that. That's different than the more subtle kinds of what bad policy about race than we see in these other instances. We're gonna get to Comey's testimony in a second. But we've been talking about the First Amendment a lot on this show. And you're actually the only person I wanna talk to about the First Amendment. You're the author of When the State Speaks, available for download on Amazon or for purchase. I find these First Amendment conversations, for me, tiresome because it's the same dance. But with you, obviously, it's different. With the travel ban, one of the things I learned from you is, is it Lakumai? That was the big... That was your case where you answered the questions and played the role of the star student. Thank you. Let's, let's just go over that one more time, how great I was. Listeners to this show know that you called it before the travel ban was rejected by the circuit courts. They would bring up this case in Florida, Lakumai, where they take into account what the politicians, what the government officials say in the lead up to the passage of a law. To me, this was breathtaking. I had no idea a government official could be held accountable for what they say about a law before they pass it. We are now discovering that a president has to watch what he says. He's been pretty quiet while Comey testifies, but he ran into some trouble on Twitter going after the mayor of London. What happened on Twitter? Trump tweeted at the, I believe the mayor of London is Muslim. Correct, yeah. Yeah, and so what did Trump tweet and did he undercut his argument for the travel ban by doing so? He had an earlier during the campaign and some time ago, the mayor of London spoke out against Donald Trump and criticized his Muslim ban and his bigotry in very direct and appropriately harsh terms. And Trump was, as you can expect, not happy about it. So there was some speculation. I did an interview a few days ago on the BBC and they were asking me about this, whether the tweets were a kind of retaliation for this earlier feud. And what he tweeted was criticism of the mayor for basically his point was that he wasn't taking the security threat seriously. But he took a number of statements by the mayor out of context and made it look like where he was telling people not to panic when they saw an increased security presence on the street, for instance, he was using that to try to say that he's not worried about terrorism more generally. Do you want to get that call? Maybe it's the BBC asking while you're wasting your time with David Felden. Oh, I've got to go, David, that's the point. You need a outlet. Hang on for one second. Not that I'm being competitive with you because I... I've got a list of the most important tweets. Mr.... Not at the bottom. I mean, I may not have been published in the New York Times. I never wrote an amicus brief, but this show occasionally cracks the top 20 on iTunes. Wow, that's pretty good. In the category of washed up comedy writers with hair plugs. But still, you know, that's a... I rejected that call, by the way. Thank you. Had it been the BBC, they usually give me a couple of hours. So... Had it been the New York Times or the Washington Post? We wouldn't be talking right now. I wouldn't have been. But I know, Lou Schneider and Jake Hogan. I know. And what they ordered. And what they ordered. And I can tell you, but... We're already digressing. You keep saying you want to focus. I was the one who taught you that if it bends, it's funny. But if it breaks... There's so many things. What does that mean exactly if it bends, it's funny? You know, it's Alan Alda in Crimes and Misdemeanors played this arrogant TV producer who Woody Allen wanted to strangle. And he kept saying over and over again, if it bends, it's funny. If it breaks, it's not funny. Comedy writers have these rules, these mosaic rules that come down from Sid Caesar and Jack Benny. Time minus comedy is tragedy. I don't know. I'm taking notes. Yeah, write this all down. You might learn something. So here's my one gift, Professor. Yes, sir. What I do is I've just thrown dirt in your eye. And then you have to see if I come back. Uh-huh. Where were we? You tried this last time. There you go. Where were we, Professor? You did this with Ralph Nader, by the way. Here, a little Sid Caesar lesson. No, you know what? Here's the problem with Ralph Nader. He's been on Saturday Live a couple of times. He's hosted it a couple of times. You know that there's a Dean Martin roast of Ralph Nader? Did you know that? No, I'd like to see that. He's had a more successful comedy career than I have. We were talking about the mayor of London. Let me, can we get serious here? And you know, I don't want to, yeah, please, Professor. So they have this, I mean, all of this stuff sounds like it's from a, you know, I don't know, from a novel. But the fact is that Trump had this crazy fight with the mayor of London over being, you know, rebuked basically for the travel ban when the mayor called him out on his bigotry. And one suggestion that was made by these people on the BBC and elsewhere is that this is retaliation. So he kind of went on this tirade, taking his quotes out of context and criticizing him. But he also, I think it was telling that, you know, he might, what he might really be upset about is the travel ban issue, because he used the same period of time to do a number of tweets about the travel ban itself. And they just absolutely undermined this case. So going back to this long theme that we're on, he said that he preferred the earlier, less politically correct version to this one. And one of the thoughts is, well, what he really seems to be doing is admitting that it really was about outright bigotry in the first ban. And to the extent that they're continuous, it looks like, you know, that might still be the motivation. So, you know, this term politically correct, they had one of his advisors also on earlier on the same show and the advisor was saying that we have to stop being politically correct and using this phrase. And at least in the context that they're using it, I think what it means is we should be allowed to be more open in our bigotry. And I think, you know, these statements that Trump made about the earlier as opposed to the later ban, he also had a statement, there was a separate tweet about basically he doesn't care what his lawyers say and what he was doing in these series of tweets is really undermining their argument that this has nothing to do with the earlier campaign statements, that this is just a strictly about security. Nobody thinks that it's not politically correct to care about security or to, you know, have even a ban on countries. I think the politically correct point is really about the fact that he thinks that it's Islam as a religion that's to blame for terrorism and that the religion as a whole has to be targeted. And that's not acceptable in our jurisprudence. And the courts, I think, will see, but I think they're gonna use these statements as more evidence that this wasn't about the campaign. It wasn't political statements. It's an ongoing intent to discriminate against Muslims. I have a friend who's going through a lengthy divorce. One of the things he's learned is that somebody like Trump who's gone through several divorces, somebody who goes through a lot of civil litigation has learned might makes right. Do you think that Trump is utterly convinced that there's no difference between civil law and constitutional law? He's taking his cues from Roy Cohn who was a great divorce attorney if you were a man. Do you think he actually doesn't know the difference between civil law and constitutional law and thinks he can just outspend? You know, I think that's a great point. And I think you've hit on something deep about this president, which is that courts, negotiation, all of these things are just pure battles of power. And the idea that he's limited in what he can do or how he could be motivated because there are certain things that are just off base because of our constitution. I think you're absolutely right. I've been writing about this and watching him and listening to his statements about this since the summer and he shows no comprehension of the idea that the document protects minorities or certain people and their ability to speak out against him and against government officials. He just doesn't internalize these things because it's all about his power versus somebody else's. And so to him, you know, the courts are just any other political actor and that's frightening to me because respecting the independence of the judiciary is the basis of the entire system. And this isn't just some reality star anymore. This is the commander in chief of the armed forces. And the whole system rests on the idea that you comply with courts, you respect them, you respect the independence of the constitution, you respect the limits on your office. And when you have somebody who thinks he's in the equivalent of, yeah, civil litigation with this bulldog lawyer, also I guess McCarthy's right-hand man, that's just both accurate and it really speaks to how much trouble we are in with this president. Yeah, Roy Cohn, look him up, kids. Yeah, no, I read his, oh, this is for the kids out there. When I was a kid, I read two biographies. They both influenced me. One was the Sid Caesar biography, which we talked about, or autobiography, where have I been? And talked about that at length. And the other is I read Roy Cohn's autobiography and you know, I recommend that too if you wanna see what a really sociopathic mind about politics is like. And somebody who exactly, as you said, thinks everything is about power. I read Roy Cohn's autoerotic asphyxiation biography. Now those jokes, these are the, I brought that up, I could suddenly, see when I say it, professor, you see what it sounds like? This is why you just stick to the law. When you make jokes like that, it undercuts your reputation. I didn't, you made that joke. I didn't make that joke. I was doing that to show you. I wanted you to hear it coming from somebody else. Boy, this really is not like the BBC. They just ask, sometimes it seems like the BBC because they ask a question like what you asked and make a good point. Like, is it really all about power? But then they don't go in that weird direction. You know, you just make this extreme turn to the, I don't even wanna repeat the word to you. Yeah, well, I think you're being disingenuous about the BBC. I think when the microphone is off, I have a feeling that's all they talk about. His autoerotic, you know about Eaton, but we don't need to talk about the boardings, the prep schools, whatever they call them, in London. Roy Cohn, Joseph McCarthy's right-hand man. He fried the Rosenbergs. He got the Rosenbergs fried. Yeah, well, and he just, you know, clearly was just somebody who cared about power. He was the force behind McCarthy, not because he had some ideological opposition to communism, but because he, and he might've been around some true believers, but because he saw it as a way to increase his and his senator's power. Tell us all these stories in the book. I mean, you know, I read it when I was probably 11, but it just sticks with me because it was all about how to just show how with subtle moves, you can really push somebody around. He tells, I can't believe I remember this, but he tells a story in there about having dinner. We could look at this to see if I get it right, but I think he tells a story about having dinner with Winston Churchill and kind of wanting to persuade him on some point, and the way that he did it is he started eating off the Prime Minister's plate, and that was just not something that he did in a formal dinner with the Prime Minister in England, but he kind of used that as a way of sort of, I'm not going to be intimidated by this situation. You know, that's interesting. I didn't know that he had an autobiography. I read the Nicholas Von Hoffman book about him, and I know that James Wood played Roy Cohn for an HBO movie, and then actually has turned into Roy Cohn, unfortunately. He was the one who groomed Trump. He was, Roy Cohn was a mafia lawyer. I don't think I can be sued from the grave for saying that. David K. Johnson talks about that in the book, that you cannot pour cement in Manhattan without the Gambino family, and Roy Cohn was the buffer between Trump and the Gambino family. That's all in David K. Johnson's book. Power, Trump believes he has a sister who I think was a federal judge. Is he right, or at least partly right, to think that constitutional law is sometimes like civil law that sometimes might does make right? I mean, if you look at Bush v. Gore and that decision, wasn't that basically about power? You know, I was going to say no and try to resist it. That is one decision that really, it's hard to understand it in terms of pure principle. And my concern there is that it was one of the most partisan moments in the court's history. I mean, I have a story about that, and I guess it goes to why I think it, that I guess I can tell now. When I was a grad student, now deceased Justice Scalia came to Princeton and sat down with a small group of us, and I asked him a question about how he could vote the way that he did. He signed on to an opinion in the case that said that part of the reason why they were ruling the way they did is there was a problem with the way that Florida was counting votes, that they weren't basically counting ballots equally. And the opinion says that that's a violation of the Equal Protection Clause of the Constitution. 14th Amendment, 14th Amendment. Right. Now that's fine, except Scalia tends to hate the 14th Amendment Equal Protection Clause, especially as a restriction on various voting procedures. It cuts against his idea that we should defer to the states and let them basically decide for themselves how to do things. And he doesn't think it's consistent with the original meaning of the clause that it was really about, certainly a requirement of a national Equal Protection Standard for voting. So I kept pushing him on this, and he was being very funny. He said, well, you know, all these law people, all you liberal law professor types, you all, I was a graduate student actually at the time, you all have never seen a time when somebody has cited the Equal Protection Clause and not applauded it. And now finally, I'm doing it. You're criticizing me for it. So give me a break, I'm doing what you want. And I said, well, you know, that's kind of nice story, very funny, but it's not consistent with what you seem to believe. And there was another part of the opinion that he more plausibly did believe genuinely, which is the idea that the Florida courts were usurping the role of the legislature. It was a separate kind of argument that he also made. But I was like, why do you make this Equal Protection argument? And he said, well, we needed to get a coalition together, and so I went along with it. And it was a just sort of rare moment of like, yeah, it's not all principle. We of course act based on politics and trying to get consensus. And I just signed on to something that I don't agree with. I got asked to, you know, kind of major journalists called me the next day because I told somebody who told this journalist and they wanted to put it in the paper, in a major paper at the time. I don't know, I didn't do it because I thought that it probably wasn't the best thing to try to offend a Supreme Court justice right before going to law school. You know, I don't know. He's obviously passed away now and I think it's important for the record to say that this happened, which it never witnesses. Two points on that. One is I wanna thank you for remaining mum on that because as they say, evil happens when great people speak up. So that's what I was. Maybe I should have said something at the time. I would have- It was a complication. I don't know. I have gone back and forth. But you know, at this point in time, I think it's important to see that, I don't know that it goes as far as to say that it's a purely partisan. You know, what could have been national news now I'm saying on your podcast. I don't know. It shows you that certainly it was a moment of frankness that sometimes it is about politics. I guess my suspicion is too, why was he trying so hard to really cobble this majority together? And I think that unfortunately that the outcome that a Republican that he was sympathetic to that trying to make that happen was part of it. Didn't they also say that this decision has- It does. What is it? This does not apply to- Exactly as you said. They said this is not a precedent and it won't apply going forward. And you know, that's weird because it's the definition of the law that when you make a case decision that it applies the principle of stare decisis says let the decision stand. You try to decide cases based on previous cases. That's the whole system of law. And yet they said there, this is a one-time thing. And- What does stare decisis mean? It means literally let the decision stand but it stands more generally for the proposition that when a case is being decided you don't decide it on an ad hoc basis. You don't say what do I feel like today? You say what happened in the past? How can we make this ruling consistent with what's happened before? And the odd thing about Bush versus Gore is that they seem to reject that fundamental principle of basically every other Supreme Court case ever. And just to say this is a one-time thing. Now why are they doing it? It's in addition to the story I told and other suggestion that it's an odd political decision. You met Scalia, I never met Scalia but I've had dinner twice with Paul Cervino who looks exactly like Antonin Scalia. You wanna know what he ordered? No. You don't? Okay. I do, okay. I do wanna know. Your sarcasm? I'm not even- That's insane. No, no, no, no, that's okay. I had dinner- That's sarcastic. No, no, no. Robert Smigel and I once had dinner with Paul Cervino who looks exactly like Antonin Scalia but your sarcasm, I'm not- I just thought I had the chance to make national news now you're turning it into what somebody ordered for dinner. No, it's okay. I thought that you'd be more impressed but I guess it's the two worlds aren't going to always meet up and- Jefferson Goodfellas, Jefferson Goodfellas? Anytime, absolutely. Maybe if you behave- He's a great actor, I should say. Well, I'm just gonna say it was at an Italian restaurant. He ordered raw garlic, whipped out, a razor blade and sliced the garlic. Wow. That's commitment. Perfectly clear, like from Goodfellas. He's terrific in that. He plays the crime boss, right? He's the boss, the head of the family. Pauly, I think. Yeah, yeah. And I sat there, a gape as Paul Cervino with his own razor blade cut these razor thin slices of garlic and then handed it back to the waiter so he could prepare his pasta puttanesca just like it was from the Goodfellas. Yeah, just the movie. That movie has probably the greatest scene of any mafia movie of all time, which is the part where Joe Pesci is telling a story and everybody's laughing and then the Hill character says to him, wow, that's really funny, really funny. Yeah, right? Remember that? Yeah, I'm a clown. It just turns it up. I amuse you? Funny how? Yeah. Exactly, like I'm a clown? Oh. I just came up with a new bit. It's sort of like what you just did where we were having this serious discussion about Scalia and then you turned it into, you know. I have a new bit that I'm gonna use on you as we proceed. Okay. I'm gonna make a really bad joke. Yeah. And then say, you can have that in your next amicus brief. You can use that. That's yours. Oh, you know what? I love that because I have to tell you this now. My grandfather, who I was very close with, he passed away a long time ago. But, you know, we were really good friends, like throughout my childhood. You're very lucky. He didn't go to graduate from college. He went to Temple for a couple of years and he had your bit, basically, but a long time ago. And he was not a professional comedy writer. He would say, every time, you know, he would ask me, he'd say, I was writing a kind of textbook at the time. It was the first thing I ever wrote. And he'd say, what is it about? And I'd tell him it's about philosophy of punishment and there's the retributivist and the utilitarian view and kind of go through all this. And his eyes would sort of glaze over. And then, like, you know, later in the day, he'd see me and say, you wanna hear a story? And he tells this joke. You know, I can't remember what the joke was, but some kind of silly, like, this guy walks into a bar with a duck on his head and the duck says, will you please get this guy off my butt? Some kind of classic joke like that, that I had heard a million times. And then I would kind of roll my eyes and he'd say, put that in your book. That's what people wanna read. All right, all right, so let's, all right. Okay, listen, we could go on and on about your fascination with my extensive collection of Fat Jack Leonard's hats. I have the world's largest collection of Fat Jack Leonard's hats. And Professor Bret Schneider keeps asking to come over and see it. I explained to him it's in a vault at some of the places. I don't even know what that is. Fat Jack Leonard used to come on stage with these hats. Did you ever see Fat Jack Leonard? No, is this like a Catskills thing or? You don't know who Fat Jack Leonard is? I don't, I'm sorry. Oh, you don't know who, you like Don Rickles? Yes, yeah. Well, all right, let's get back to the travel ban. The Mayor of London. There is a travel ban in Great Britain. There's talk that Parliament is gonna ban Trump from visiting, right? This is true, they have an actual travel ban for things people say or crimes they may or may not have committed. A travel ban in and of itself is not unconstitutional. The last show we did, we talked about the travel ban that prevented Charlie Chaplin from returning to this country. Yeah, I was gonna bring that up. So could the Solicitor General, I believe it's the Solicitor General who will defend the travel ban? They're gonna say that. I mean, that's their best argument is look, we limited in this case called Mandel, a Marxist professor from coming into the country and speaking at Stanford because of his beliefs. And so it gives the president, our constitution, gives the president lots of discretion in who gets in and who doesn't. And if that's true, then maybe Trump can even ban Muslims from the country. That would be the extreme version of it. But I think that that's an important argument that they'll make, it's one of the things the Supreme Court will think about. But my view is that there is a difference leaving the justness or not of that case aside. There is certainly a difference between saying, look, we're not gonna let somebody in the country because of their views, in particular of their advocating terrorism or in Trump's case, advocating bigotry. That's very different than saying, we're gonna ban somebody because of who they are. And that's what the Muslim ban does. It's a kind of core form of prejudice that bans religious people, the children of religious people from coming into the country. And that's religious discrimination, but it's also akin to ethnic discrimination. It's status-based discrimination as a technical way of putting it. And that's very different than trying to discern who's dangerous or who's not based on ideology or who's reprehensible or not. We're talking about the establishment clause of the First Amendment where there's no official religion. Right. But the point of our brief, the point of what we say, and this is largely what the Fourth Circuit would agree to is that what's going on, regardless of the clause that you use, is you can't denigrate a religion. And so the denigration is what the problem is. And that's just like denigration based on race or ethnicity. What if he had said, we wanna ban Arabs? That also looks like ethnic discrimination. I think it's clearly- But that's not the First Amendment, though. No, it would be a different, I mean, here's a, these are good deep questions. We think there's a common principle that applies to three clauses, the free exercise, establishment, and equal protection clauses. The idea across all three clauses, there's really one fundamental principle common to all of them. And that's that you can't be a bigot. You can't discriminate based on status. Now there are different kinds of status. There's ethnicity. There's, as in your case that you just raised, there's racial discrimination based on race. And there's discrimination based on heritage or religion. And that's the third time. What are the three- It's the same idea in all three cases. What are the three constitutional pillars you're citing? It's the establishment clause, that's the First Amendment. Number two is what? The clause that was technically at issue in the Lukumi case. The ban on prohibiting the free exercise of religion also in the First Amendment. So that's two. Yeah, and the third is the ban on government not guaranteeing equal protection of the law. That's part of the 14th amendment. And does equal protection of the law apply to people who are not United States citizens? They're gonna say no. But in my view, if the president is acting, he cannot act based on an animus based motive or prejudice. So imagine if the president tried to at the border ban non-citizens from coming in based solely on the color of their skin. I think that's clearly unconstitutional. Now he's gonna have his lawyer say, well, I can do whatever I want when it comes to immigration. And I think that's just wrong. And there are cases that said that. There's a case about Chinese exclusion that said, well, the president and Congress can exclude people because they're Chinese. I think that is an anachronistic and ancient idea that in our modern world has no place. Let me ask you about Korematsu, the internment of the Japanese. Suppose Chojo, who was the leader of Japan said, you know what, they have this amazing constitution. They let anybody in, let's create a fifth column. Let's just start sending Japanese citizens into America as immigrants. And we are at war with the Japanese. They decide to kind of invade America by sending Japanese soldiers over or the soldiers posing as citizens. Would Roosevelt been right for establishing a travel ban? And a meteor is heading towards us that could destroy the entire Southern Hemisphere. This is just hypothetical. The, I'm gonna leave the meteor aside. Sort of when you're teaching what you gotta do, you gotta take the good part, really encourage that. Really, now I'm gonna digress, but I just watched an episode of the Unbreakable Kimi Schmidt. This should be your homework. Have you heard about this show? Of course. And Kimi goes to Columbia and she learns, she becomes a philosophy major and she starts learning about the trolley problem, which I won't go into, but it's a very classic problem in philosophy. And she starts asking and everybody in the class is asking about the kind of trolley it is. The, you know, it's meant to be this moral dilemma that has nothing to do with the kind of trolley, but they ask every irrelevant question about trolley. So the meteor is a little bit, but you had an earlier good point, which was what do you do if it turns out that there really is a true factual security threat from some in your example, members of the Japanese government that are trying to infiltrate the United States? Would that justify a travel ban or would that justify what Roosevelt did in signing an executive order that eventually led to the internment of Japanese Americans? And the answer to that is I think, no. In fact, imagine in that actual case that there were some Japanese people who came into the country from Japan and posed a security threat. Would that justify what Roosevelt did, which is rounding up or what Roosevelt signed an order allowing to happen, which is rounding up lots and lots of completely innocent people who had nothing to do with the government of Japan, solely based on their ethnicity? And the answer to me is, wow, that is I think one of the worst decisions in American history. You can't blame people in a kind of collective punishment for their ethnicity because some people who have some ancient connection to them because their families are all from the same country are engaging in some kind of bad activity. That's a form of collective punishment. It's a form of ethnic discrimination that has zero place in our constitutional culture. So we're about to go to war. You're right to push back and to say, look, here are the facts or these could be the facts. And I think the answer that the modern court would give is we do not allow some actors who happen to share an ethnic profile with others. We don't allow that to be a blanket reason to go after an entire ethnicity. And what they did in that case, Supreme Court actually sided with Roosevelt. They upheld the order. They did not strike it down in Korematsu and that was a true constitutional tragedy. We know that Putin supposedly, we know this, has tried to manipulate our elections. I wouldn't put it past him sending refuse nicks into this country, Russians posing as, I don't really believe this, by the way, but I'm just, it's a hypothetical. We know that we're not at war with Russia, but there's some kind of tension and they're trying to undermine our system. So says the intelligence community, if you can believe them. But what if Putin starts sending Russian people into the country seeking asylum and we suspect that he's just sending, what are they called, fifth columns? Well, you know, there's nothing, and this is important, I should have clarified this too when you were giving your Japanese example, there's nothing that prevents the government from vetting people. I mean, that's what the Obama administration was doing, was they had a series of procedures that looked at who somebody was, who their background was and whether there was a chance that they posed a danger to the country. And certainly the United States did and continues to exclude people based on an investigation of how dangerous they might be and based on a kind of close vetting. That vetting includes going through their Facebook accounts, what they say. Yeah, they don't have full constitutional rights, but what we're saying, and what I think the Supreme Court should say, is that there's nothing that prohibits the government from exercising vast powers of inquiry and figuring out who comes into the country or not. And it's actually the obligation of the executive branch to keep the country safe. But there's no evidence in this case, and we could look at the other examples that you're giving, that there's any increase in the security to the United States that comes from this ethnic discrimination as opposed to what was going on in the Obama administration. So, you know, what's the point of it? What's the rationale? It looks like it's just bigotry. This is what a number of the, one of the judges on the West Coast said in one of the earlier cases is, what is the point of this policy? What is it going to do that would be better than the previous policy? And the government had a very hard time giving an answer to that. So you're saying that if this travel ban had been issued by Obama, it might hold up in... I don't think he would have done it. There would be no reason to have a ban. That's the point. The policies they had in place were more effective than the current one. But based on individual vetting, yeah, vetting of the individual rather than somehow giving, I don't know, basing it on ethnicity, or your religion, which seems like the worst way to do it. Well, Trump claims that the idea of the travel ban came from the Obama administration. Yeah, that's completely false. The Obama administration had designated some of these countries for, my understanding is for privileges when it came to immigration. And at one point they decided they were gonna do away with those privileges for, I think it was for dual citizens from those countries. And the Obama administration said, you know what, this doesn't make sense to have these privileges anymore. But the idea that there was some sort of semi-travel ban from these countries is false. On the last show, not with you, I was talking about, it's not what you say, it's who says it. For example, Bill Maher has gotten into hot water for using the N word. And I maintain it's really not about the use of the N word, it's about Bill Maher, it's because he said it, because people don't trust him anymore due to his comments about Islam. If something happened in this country that necessitated Obama issuing a travel ban, which is not, you know, he deported more undocumented workers than every other president of the past 30 years combined. I mean, ICE really found its power in the Obama administration. We remained silent on it because of what Obama sounded like. So isn't it often, as we've learned from Lukumai, it's not what you do, it's really what you said before you do it? Well, it's partly that, but it's not just worth. It's about the kind of motivation. And I disagree with some of the policies of the previous administration. But what I think is different about this administration is I don't think that Obama was engaging in intentional discrimination based on religion or race or ethnicity. I think to the contrary, he taught, I mean, it's kind of an amazing contrast when he was at University of Chicago Law School, he taught equal protection, he taught constitutional law, and he had a deep commitment to the idea that no matter what a president does, they can't discriminate based on race, religion or ethnicity. And I think he vetted their policies to make sure precisely that they weren't doing that. Now, as we were saying in the beginning of the conversation, not only has President Trump not internalized these norms, he seems completely unaware of them. So that to me is just a striking contrast between this constitutional law professor really devoted his life to the idea of equal protection and somebody who couldn't even tell you what that was or what provision that came from. Right, we're almost out of time and I wanna be respectful of your time. And I wanna have some quick questions about Comey, but I just wanna push back on something with Obama because I do find this interesting when it comes to what people do versus what they say and who can get away with saying things and who can't. I love Obama, I agree with you. He's a constitutional law professor, Harvard Law Review. We trust him with the Constitution. Trump, on the other hand, went to Wharton Business School for two years, hasn't picked up a book. I think that an argument could be made that Obama is guilty of just as many constitutional violations as Trump, extrajudicial killings, the rounding up of primarily undocumented Mexicans, record numbers of undocumented Mexicans, being rounded up by ICE, not being given equal protection, being sent to private prisons, not being given lawyers being forced to go through administrative law as opposed to government law. But it's Obama, so it's okay. You know, I guess I wanna agree with you here rather than try to fight back. You're making, again, a deep point, which is we tended to excuse constitutionally problematic policies when it was somebody who, well, you know, I'll admit that I was a fan of Obama and so I wasn't speaking out on a daily basis against him. You know, I just admired him and in retrospect, that was a mistake. You know, I think that we have to going forward, regardless of party, take constitutional limits seriously, say the kind of things that you were saying. But I don't wanna create a false equivalence. I think he did things that were constitutionally problematic, but not intentionally in the way that Trump did. He didn't have intentional discrimination at the basis of a lot of his policies and as an order of magnitude, saying you're gonna torture the families of suspected terrorists as Trump did with its many constitutional violations in that one sentence, Obama never came anywhere close to that. I think he had a good faith desire to comply with the constitution, even if all of his policies did not. Right, I wanna move on, because we're running out of time and this is, by the way, this is the best episode I've done with you. Thank you. This is fantastic. What I'm taking- Of course, congratulations. I don't know, do I thank you or say congratulations? Sorvino ordered red wine. That's how good it was. I'm gonna give you a little- Okay, thank you. I'm throwing you a bone. So one of the things I've kind of learned today, or realized, is I understand now what Trump is thinking about power. If you get into that tiny head of his, I think he understands what I happened to believe, which is it's not what you say or what you do, it's how you say it, it's how you do it, it's who is saying it and it's who is doing it. I think that's what Roy Cohn taught him. I think that isn't fair, and we have to prevent that from continuing to happen, but that's what Trump believes, right? I think so. From what I've seen and listening to him for this past year at least and before, it doesn't seem to, he does not seem to be motivated by ideals. He doesn't seem to have anything like an ideology or values aside from his own interest. And there are academics trying to figure out what Trump stands for, what Trumpism is, and to give it the best possible spin. That's an impossible task, because this is somebody who is really from the Roy Cohn School of Politics. It's all about power and angling. It's the guy who when he met Winston Churchill ate off his plate. It's not somebody who's having a deep conversation about what the values of a democratic republic should be. Seems to me Roy Cohn learned this, wasn't his father a judge? It's been a long time since I read it. Roy Cohn's father. But that does sound familiar. Yeah, Roy Cohn's father was a judge, so he knew something that maybe some of us didn't know going into law school. Very quickly, very quickly, and try to keep it clean. I think he went to Columbia. That's the other thing I remember, yeah, let's keep it clean if you can try. Comey, FBI Chief James Comey, testified yesterday before the Senate Intelligence Committee. You know, they had the countdown clock on every network. How big is this? Everything has to be big. Everybody, you know, everything, this is as big as Watergate. This is as big as Contragate. This is as big as David Feldman's first Tonight Show appearance. How big is this? I mean, is it on par with my appearance on Match Game? Yeah, that's the question again. I got a little lost there. We're told that there's so much hype in this country and there's the countdown clock, you know, five hours until James Comey testifies. This is big. Don't bother going to work today. It's a snow day because Comey's testifying. This is the Army McCarthy hearings. This is Watergate. This is Contragate. This is David Feldman on... You're saying what's the big deal that you don't get? I'm asking you, I'm asking you, is it as big a deal? I think it is. Oh my God, the James Comey, it looks like from what he said he was gonna say, is testifying today that the President of the United States cared more about loyalty to him than loyalty, it's exactly what we're talking about. Then loyalty to the Constitution. And the idea that he, you know, when the Flynn investigation seemed to imply that it was important to back off because of being one of member of the team. And Flynn is a good guy, was one of the quotes that was used, rather than doing the job of the, one of the most important law enforcement officials in the country, which is to apply the law impartially, that's frightening. And that is impeachable. Without question, I've heard enough through these various instances of threatening to disobey judicial orders of firing an FBI director in order to impede an investigation that even if there is not legal culpability in the criminal law, our obligation in thinking about whether there's a high crime or misdemeanor is not a legal one. It's a political one. And it really comes down to whether we have a President that is or is not able to enforce the basic requirements of the Constitution. And what we've been saying really builds up to this point. Not only is he not able to, he's unaware of and indifferent to its requirements. And that's why he could basically fire this person, demand loyalty to him over loyalty to the Constitution. It is devastating. And it is, I think, worse than what happened during Nixon because Nixon was a lawyer and had many, many psychological and personal faults. And we could go through the list of what was wrong with Nixon, but this level of hostility to the, not just the Constitution, but the rule of law is unprecedented. And yes, it is time for the Republicans to step up and to begin impeachment proceedings. I'm just trying to filter all this through the Republican brain. I'm just trying to understand how they can defend this, asking the head of the FBI not to investigate. That would be obstruction of justice, right? I mean, that's just... I mean, my point is, you know, it might be. That's a real question is whether or not he violated the criminal law, which bans impeding a criminal investigation. But my point is that the question of impeachment is not that. We are asked when we talk about high crimes and misdemeanors, the reason why the founders delegated the task to the Congress, the House of Representatives to impeach and the Senate to try is because it's not a legal standard. And it's not just partisan politics. It's not, let's do this to anyone we can. But it is a question for the American people and their representatives in Congress to ask whether or not this president is hostile to the basic principles of the rule of law. And so even if it's not criminal, it is, I think, enough for impeachment. The president had been thinking of blocking Comey from testifying. There was no way a president can prevent a private citizen, which Comey is, from testifying, right? I mean, I'd have to hear the argument, but I don't see how, you know, there is this idea of executive privilege and Nixon tried to use it to keep the water gate, the tapes from the Oval Office that concerned Watergate from a subpoena. And the court in US versus Nixon, basically, to me, said the president is not above the law. Now, there are some presidential immunities and some privileges. So for instance, you can't just subpoena the president's counsel and ask him or her to testify about what the president said in a confidential conversation. There's work product that's privileged. And a lot of the business of the Oval Office is, I think, potentially privileged. But what is not possible to do is to use executive privilege to, as you said, prevent a now private citizen from testifying. I mean, there is a case called Fitzgerald. Yeah, I was going to ask you about that, yeah. Whether you can sue the president for money damages for official acts. And what they say there is that you can't. But that's not what this is about. This is about a president trying to stop a former employee from testifying. And I don't see any precedent or argument for why he could do that. And you know what? I think if he could have, he would have done it. I think he must have told them there's no way. Well, this was the best. You were amazing. And you were so good, here's your treat. I was wondering, I thought you were going to give us the wine. No, I'm going to give you something even more. That big lunch that I had at Jerry's in the Valley with Lou Schneider and Jake Hogan, the comedy writers. Here you go, you deserve this. For dessert, Lou Schneider had cheesecake with blueberries on top. He finished half of it, patted his stomach and said, you know what, it's the middle of the day I should stop. Jake Hogan ordered the sugar-free banana nut muffin and finished it, although he said it's greasy. And what they do to make up for the lack of sugar is they put a lot of fat in this. And so it's empty and not satisfying, but I'm going to finish it and go take a nap. Okay, well, I've got this on tape if I had there, so. That's what. And I do like cheesecake. Professor Corey Brechneider is a constitutional law professor at Brown and Fordham. He's the author of When the State Speaks. You've read him in the New York Times, Politico. Is God bless you, sir. This is the highlight of my week. My pleasure. I always have a great time. Thank you. Thank you.