Immunity for Trump?

Your Calvinist

Subscribe

Download

Share

00

00:00

Even if the president was handed a sack of money and said, would you issue this person a pardon because I gave you this sack of money, and he does so, he cannot be prosecuted for doing that.

00:09

He can be impeached and removed if it's midway through his term, but again, that's... But if he's walking out the door. Which is why they are always done as they walk out the door, yeah.

00:17

And every cousin of every president who's in jail is sending a letter after the letter. Remember when we used to play as kids,

00:24

Mr. Joe Biden? I mean, was Joe Biden ever a kid? I don't know. Maybe in the

00:30

Great Depression, but... And we're heading back. Yeah, exactly. His, if he was, if Joe Biden, Joe Biden's inauguration date, or rather,

00:39

Joe Biden was born closer to Abraham Lincoln's inauguration date than his own. Think about that for a second.

01:12

Don't say it, that sounds violent.

01:54

Welcome back to Your Calvinist Podcast. My name is Keith Foskey, and as always, I am your

01:59

Calvinist. And I want to remind you that this episode is brought to you by Sovereign Grace Family Church.

02:04

If you're in the Jacksonville area, we would love for you to come and worship with us at Sovereign Grace, and you can find out more about us at sgfcjacks .org.

02:14

Also, we are a partner with Tiny Bibles. If you're interested in the smallest Bible that you can get on the market and available in both

02:21

King James and New King James, go to tinybibles .com. Also this month, they're running a new campaign to have a tiny

02:30

Gospel of John printed. And if you'd like to get involved with that and be part of the pre -order, you can go and find out more about that as well.

02:40

Finally, I want to remind you also that we are supported by you guys through buymeacoffee .com.

02:47

So if you want to support the show, you can go to buymeacoffee .com slash Your Calvinist and become a member or simply leave a one -time donation, and it helps us out a tremendous amount.

02:57

Well, I'm very thankful to be able to welcome my guest today, a guest who really needs no introduction because he is such a friend of the show, has been here since the beginning, and a man that I have come to love very much, my good friend and not -yet -Calvinist friend,

03:18

Matthew Henson is with me today. Matthew, thank you for joining me on the show. Matthew Henson So glad to be here.

03:23

And just an update to those who've been praying for my Calvinist conversion. As an elder of the church,

03:29

I did preside over communion this Sunday and read from John 6 and quoted John Calvin in so doing.

03:35

So there you go. Maybe you're making progress. I don't know. Darrell Bock I don't know. I've never been so happy at the beginning of a podcast.

03:44

I'm going to have to stop and just, you know, my heart is fluttering. Praise the Lord. Matthew Henson But it's interesting.

03:54

Have you been on since you became an elder? Darrell Bock One time, yeah. What episode was it we were doing?

04:01

Gosh, I don't remember. But it was one time and you got to introduce me for the first time because it had been quite a road to get there.

04:08

But it was a sweet time. I remember how I felt. I just don't remember what the topic was.

04:14

Gotcha. Well, I'm excited today to be talking because I brought you in as a subject matter expert, and we've done this before.

04:21

But today is going to be continuing on. And the reason why

04:26

I say subject matter expert is because I know that you are a person who has studied the

04:32

Supreme Court and particularly the decisions of the Supreme Court. And you have spent a lot of time learning about it, a lot of time investigating how the process works, how our legal system works, particularly at the highest level there at the

04:48

Supreme Court. And what I have learned from you has been a tremendous amount, especially

04:54

I know we did the episode when Roe v. Wade was struck down, and you just had tremendous insights as to how that worked, why it worked.

05:02

And it was so certainly important to me. And you even gifted me Supreme Court documents regarding the

05:11

Second Amendment, which I remember was very grateful when you gave me that as a gift. So not only has our friendship been a beneficial thing because I love you and enjoy being around you, but I also just enjoy the fact that you are such a knowledgeable person in many areas.

05:24

Also on the subject of weather, which we've done a weather episode. You're my personal meteorologist, which

05:30

I've jokingly said that before. And speaking of that, I know it's not the subject of today.

05:36

Is there any updates on Beryl, the hurricane that was heading towards Texas? I believe they said it was going to landfall sometime

05:43

Monday morning, which would be at the time this is being recorded. So I don't know. It's kind of fallen apart a little bit after it went across the

05:51

Yucatan. So when you get a disorganized storm, sometimes you can see, OK, that's the eye of the storm right there.

05:57

But when they get a little disorganized, it's kind of a judgment call on when did it actually make landfall. But if I'm not mistaken, it would have by now as a category one.

06:05

Well, I know yesterday in church, we were praying for some folks that used to be members of our church and had moved to Texas and were right in the middle of where it was supposed to come plowing through.

06:14

So we continue to pray for them. And if you are in Texas, know that you are in our prayers as you face this storm.

06:21

All right, my friend. So recently we know there has been a lot of Supreme Court decisions that have come down that have made, well, have made the news.

06:32

And a lot of people like me, we hear about it. We see it. But we don't know really what's going on and what brought about, like when people say, oh, the

06:41

Chevron decision. I know that as a concerned citizen, I should know more about that.

06:46

But I don't. I know that, like the Donald Trump decision, which regarded immunity for the president.

06:55

I mean, to me, that's a huge deal, but I don't really understand it. And I imagine there are some people in the land of YouTube who are watching this show who don't understand it.

07:05

And I realize some of you might be saying, hey, this is, you're supposed to be doing theology. Understand this.

07:10

We live in this world and we are supposed to engage with this world, with the gospel. And some of these end up affecting how we are engaging with the world around us.

07:23

And it may affect our freedoms and our abilities and things that we can do and can't do. Not that we wouldn't go out and share the gospel if it became illegal, but it certainly would, it would make a difference for how our lives work and how we operate in the conditions that we're in.

07:38

So keeping up with the culture is important. I'm very thankful for men like Al Mohler who provide a daily briefing of news and events from a

07:47

Christian perspective. I've listened to that for years and found it to be very helpful on subjects like this one.

07:53

So without any further introduction, I know one of the ones that we're going to talk about first is the

08:00

Trump decision. I think that's going to be of great interest to people, especially people going into the political election season.

08:08

So I want to ask you, Matthew, what's it all about? What does it mean and why should we care?

08:14

Matthew Feeney Sure. Well, just one little other bit of introductory material. I did purchase as a gift for Keith a copy of one of the

08:22

Second Amendment concerning decisions, that being D .C. versus Heller. And I will move up into the camera frame.

08:28

He got me this shirt here, which if you're listening audio only, you just heard some dead air.

08:34

But it says, ask me about the Supreme Court. And the careful viewer will note how worn the shirt is because I wear it all the time.

08:40

I love it. And it's been through many wash cycles. So yeah, so the Supreme Court, like, why should

08:46

Christians care about this? Well, I mean, on the one hand, you are afforded—we just had

08:52

July 4th, right? And a lot of churches take the whole God and country thing a little too far. But that doesn't mean that we shouldn't—

08:59

Matthew Feeney Yeah, I mean, but that doesn't mean that we shouldn't recognize and appreciate the blessings that God has given us.

09:06

We have so much light right now. What Keith and I are doing is criminalized in so many different countries to talk about theology and,

09:15

God forbid, to discuss the workings of government and potentially express our disagreements over them.

09:21

That's just something that other countries—a lot of other countries, you can't do that. And so Christians should know where the bounds are.

09:28

We should know the workings of our government. When Paul is in the latter chapters of Acts, he's working the

09:36

Roman judicial system to spread the gospel. Eventually, he says, I appeal to Caesar.

09:41

And they said, to Caesar you appeal, and to Caesar you will go. And so that's how he ends up going on his journey to Rome.

09:47

And like— Darrell Bock And you don't strike a Roman citizen. Matthew Feeney Yeah, you don't do that. Yeah, the guy got beat by this centurion, and then the guy freaks out.

09:55

He's like, oh my gosh, I just did this to a Roman citizen. Darrell Bock You done messed up, A .A. Ron. Matthew Feeney You done messed up, A .A. Ron, or whatever the

10:03

Latinized version of that is. Darrell Bock You done messed up, A .A. Ronius. That's our new catchphrase.

10:09

Matthew Feeney There it is. But no, like—and Paul knew his rights as a

10:15

Roman citizen, and it wasn't—it was not something he was grasping onto for his personal gain.

10:20

It was to spread the gospel. So Christians, we need to know where the boundaries are. We need to know how our system works so that we can work it for the sake of the gospel, and so that we can have, you know, as effective of an outreach as we can.

10:35

We need to know that sort of thing. Darrell Bock Amen. Matthew Feeney Yeah. So all right, so what did we get?

10:42

The Supreme Court hears cases basically the same time period as a school year. They start up in October hearing cases, and they hear them all the way into, really,

10:52

April, and then they are—they hear the cases, and they're writing opinions, generally starting in, like,

11:00

February, and then they release a couple per week—a couple per month, rather, here and there throughout February, March, April, and then in May and June, that's when they really kick up, and they release the rest of the opinions, and a lot of it's because these are complicated, 100-, 200 -page documents, and every single sentence and syllable is a binding precedent for future generations.

11:21

And so they're very careful about how they do—well, the good justices are. We'll get into that in a minute. But they try and be very careful about how they do phrasing, what words they choose.

11:31

It's very much—and again, I'm going to keep making parallels. Whenever I preach or, like I was saying, had a chance to preside over communion,

11:38

I go back and listen to that video, especially preaching, because I'm so new at it, you know, six or seven times, and I take notes on my own sermon, and I'm like, oh, whoa, that phrasing could be interpreted this way, and I make points to improve.

11:50

Anyway, the same weight is—not the same weight—a similar category of weight is put on when there's a

11:58

Supreme Court decision, because if you ever go pull one up, most of it is citations of other

12:04

Supreme Court decisions. They're building a case. They're saying, as we held in this case here, in this case here, in this case here, in this case here, so therefore that would mean this, you know.

12:13

Yeah. Real quick, because you mentioned something I didn't—so when the decisions are being released, these decisions have already been made sometimes months in advance.

12:24

Am I understanding that correctly, or is this— Kind of, sort of. So Justice Scalia actually did an interview towards the end of his time—end of his life, and he didn't—he died fairly suddenly, so he wasn't, like, terminal with some illness or anything that he knew of, but towards the end of his life, he did this interview, and they were like, okay, so what happens after oral arguments?

12:41

And he would put pause, and he'd say, all right, well, every issue effectively that the court deals with that you really hear about starts at a district court.

12:49

It starts with party A suing party B in federal court, saying that there's been a violation of constitutional rights or federal law or something like that, and then the district court will do what it does.

13:01

You know, one judge, sometimes a three -judge panel kind of depends on the jurisdiction and the issue that's being addressed, and then they'll issue a ruling.

13:07

Now, they've compelled witnesses, and they've done fact -finding, and they've done all the things we think of when we hear a trial.

13:14

It's a very traditional trial, and a jury is present, you know, and that kind of thing for some of them, depending on the parties and what the issue is.

13:25

Okay, so then if you are on the losing side of the judge's ruling, then you can appeal.

13:31

Now, the thing is, appeals are not, I didn't like the ruling, so I'm going to go to someone else and ask for a different ruling.

13:37

At least they're not supposed to be. You have to allege a specific constitutional violation occurred or there was a federal rules of evidence problem.

13:47

For example, evidence was admitted that shouldn't have been or something. You have to allege that there was a procedural or legal issue.

13:54

You can't just say, I didn't like the ruling, give me another shot. That's not what an appeal is for. And so when you do that, you get after the district court level, you will file for an appeal in the federal circuit that you're in.

14:08

So we're at Florida's in the 11th circuit, for instance, and there's circuits all over the United States.

14:15

And that level of court, they don't hear all the appeals that are asked for, because sometimes people's appeals are dumb and they're just like,

14:23

I didn't like this. And they say, well, go away. We're not taking your case, basically. I don't know why

14:29

I'm laughing. It's like, we didn't like it, you dumb. You dumb. No, there was one, the Supreme. So, OK, very, very minor digression.

14:36

The Supreme Court releases lists of orders, they're called, about once a week. And these are very, most of them are just clerical things.

14:43

Like, we accept we're going to hear these five cases in the next term, but we're not going to hear these hundred cases.

14:48

And usually that is about the ratio of people asking to be heard. There was this one time where it was like, we are denying review on this case.

14:57

And furthermore, the clerk is directed to no longer accept this guy's petitions because basically he won't shut up and he keeps sending the same thing over and over again.

15:05

And I was like, that's the nicest legal way I've ever heard of right -click, mark as spam. Like, that's basically what they were doing.

15:11

So that guy had to pay a fine if he wanted to submitting it. Anyway, so these appellate courts -

15:16

Everything's legal as long as you're willing to pay for it. Basically, right. Yeah, basically. When something has a fine, we're not saying it's illegal.

15:22

We're saying it's legal for a cost. For a cost, that's right, yeah. It's legal for a price. He can submit, but it's going to cost you.

15:29

Right. So an appellate court hears the case. And then an appellate court is usually a three -judge panel. And then they hear -

15:35

Now, again, they're not - At this point, they're not finding facts anymore. They did the guy, shoot the guy.

15:41

They will - Whatever the district court determined, they will take as given. So because the district court had the ability to compel witnesses, get testimony and stuff like that.

15:49

They're asking, what is the specific constitutional or federal law violation that occurred here that you believe you didn't get a fair trial?

15:56

Okay. So they'll hear it. If you don't like the result you got from that, you can do something called an en banc appeal, which is

16:03

E -N, new word, B -A -N -C, which is where you get the entire appellate court to hear it.

16:10

Because normally an appellate court has anywhere from 12 to 20 judges sitting on it. And if you don't like the result you got from the three -judge panel, you can petition for an en banc review.

16:20

At that point, they will do it again. And if you still didn't get the answer you want, you have one last avenue, and that's an appeal to the

16:26

Supreme Court. And so at that point, that's how a case makes it all the way to the Supreme Court, which is why some of this stuff, they're still in appellate court levels hearing cases from rights violations during COVID four years ago.

16:39

I mean, this stuff takes time. Everybody, they file a motion. Then the other side gets 30 days to respond. And the wheels turn slowly, but it's a very deliberative process.

16:49

And I want you to know why I'm not the guy who has this type of mind like you, thinking through these type things.

16:56

Because ever since you said en banc, I've just been thinking about Montblanc, the pin. Or the mountain in France, or wherever it was.

17:04

I'm thinking, actually, I'm quoting the 007. We'll see here, 007.

17:11

This looks like an ordinary Montblanc pin. But when you depress this lever... That's right.

17:16

Yeah, I got to get the quartermaster in there. I'm sorry. That's okay. To my audience, I want you to know,

17:22

I'm just... I'm just a goofball. I love you. I'm a goofball in my own life.

17:28

But I'm very interested. Okay. Sure. So let's say you're one of the cases that actually makes it to the Supreme Court.

17:34

Now, again, the Supreme Court, they will very much jump in if there's something called a circuit split.

17:39

Let's say you have an identical issue in the Second Circuit and the Eighth Circuit, and those two appellate courts came to differing conclusions.

17:47

That's a very high chance the Supreme Court's going to take that case, because they want to have a definitive word on that.

17:52

But they are not compelled to take any case. They do not have to hear any case. The other thing is they can only hear cases and controversies constitutionally.

18:00

So what that means is that... Excuse me. There has to be a plaintiff and a respondent or a defendant.

18:07

You can't go get an advisory opinion from them. The president cannot call up the Supreme Court and say, hey, I want to take this executive action.

18:13

Is it legal? And then have the Supreme Court issue a preemptive statement. He can't do that. So it has to be a case.

18:20

It has to make it through all levels of appeal. The Supreme Court does have the option of sort of plucking a case out of the normal process from the district court, from the appellate court.

18:30

They very, very rarely do that. But they do have that option. Bush v.

18:35

Gore, for instance, which was a very time -sensitive case in the 2000 election. It only had to be decided in a matter of weeks or something.

18:42

There was not enough time. So the Supreme Court used its authority to do that and took that case. That was the hanging chads thing.

18:48

Florida became very famous for that. Florida's famous for a lot of stuff.

18:55

Yeah, that one was. Florida man. Well, again, I could talk for hours about that case because it was much more complicated than people would give it credit for.

19:03

But anyway, so let's say you make it to all that level and the Supreme Court accepts your petition. Well, then you're scheduled an oral argument date.

19:10

They generally hear two cases per day, one at 10 a .m. and then one at noon. And that's in D .C.

19:16

in the chambers of the Supreme Court. And that starts in October. And usually it's like,

19:23

I may have this wrong, it's like Monday, Tuesday, Thursday, Friday, they're hearing cases. And then Wednesday, they have what they call a judicial conference.

19:29

Does anybody in government work a 40 -hour week? Oh, these guys do. No, let me tell you. I'll tell you. So before the case gets there, two oral arguments, the basis on which they accepted the case or not is based on what we call the briefs.

19:46

And so the petitioner files a brief that says, you should hear my case because this and the other. Here's the violation

19:51

I'm alleging and whatever. And then the respondent will also file a brief if the case is accepted.

19:57

The Supreme Court will give them some amount of time to file a brief and say, here's why that person's wrong and why you should rule in our favor or whatever.

20:06

And then you have something called amicus curiae briefs, which is Latin for friend of the court. And so where we get the word amicable, for instance, or amicable, however you pronounce it.

20:15

And amity, as you know, means friendship. Tell me what movie that's from in the comments. There you go.

20:21

Get after it. Do you know? No, I don't. Oh, I'll tell you later. OK, that's fine. If you do that, you get a...

20:26

No, I'm not going to make any promises I can't keep. So you have amicus curiae briefs. So for example, if you have a case on, yeah,

20:34

I don't know, well, the one we talked about, Dobbs, when it came to overturning Roe v. Wade. I mean, Planned Parenthood filed an amicus brief.

20:40

They weren't a party in the suit, but they said, hey, court, you should you should think about us when you make your ruling because this will impact us.

20:47

But I'm reliably told only three percent of their business. I don't know why they're crying so much, right? Yeah, anyway.

20:53

But then you have national right to life. You have the Catholic Church filed an amicus brief, you know, like there's this.

20:59

That's what they do. So the Supreme Court has to. Well, they don't have to, I guess. They are provided with literally thousands of pages of briefs for every single case.

21:11

And that's why they can only accept 60 or 70 cases per year, because there's just so much reading to do now.

21:17

Does every justice read every word of every brief? Doubt it. Honestly, doubt it. They have clerks to help them with that.

21:24

They're using technology like we are. They're doing fine to look for different phrases. They're looking at what cases are cited like they have their own review method.

21:31

They have chat GPT and they're going. Summarize this like I'm five.

21:38

Yeah, TLDR. I'm not reading your brief. Anyway, so then they get the briefs and on they schedule oral argument.

21:44

Now, oral argument, some courts in other countries don't even do this anymore because it's considered old fashioned. And we can just take your written briefs and call it a day.

21:51

But oral argument can make a difference in cases. It really can. There was one Citizens United, which is one of the most hated cases by the left on free speech.

22:00

And at that point, it was Chief Justice Roberts that actually asked the question and said, under the standard you're proposing was something about campaign finance.

22:08

If a group wanted to get together and publish a book in favor of a particular candidate, could the federal government under this law ban it?

22:14

And the guy was like, yeah, we could. And literally you heard a gasp in the courtroom because the justices who'd read the briefs that were not on board with that or were sympathetic to the government's case flipped like that.

22:25

I think oral arguments really made a difference there. So the oral arguments happen. Then they go to judicial conference, which is on a

22:33

Wednesday, and they sit in a room, just the nine of them. And they say, OK, in the matter of Henson versus Foskey, you know, if we ever made it all the way up there.

22:42

Let's hope not. Let's hope not, right? What are you guys thinking in favor of the plaintiff or the respondent?

22:49

And then they literally just do a show of hands. And whoever has them, seriously. They don't even do a secret ballot.

22:56

No, they literally just do show of hands. OK, Roberts, is it going to be a thumbs up? Yeah, basically. It's like the thing from, was it

23:03

Gladiator? So they vote essentially just like that.

23:09

And then they say, and Scalia was funny about this. He said, and then we have to decide who's writing it. And no one, his thing was no one wanted to write the opinion because it's a lot of work.

23:19

But the majority, the senior most justice in the majority can write the opinion or assign it to someone else in the majority.

23:27

Now, the one that overrides that is the chief justice, whichever if the chief justice is in the majority or the dissent, he gets to assign that sides who writes the opinion.

23:37

He can assign it to himself if he wants to. So that's a power that he has. The chief justice can do that.

23:44

Once that happens, they begin writing the opinion and they'll circulate it.

23:49

So let's say it's a 7 -2 decision and you're in the majority and you've been assigned the opinion, you write what you think is the best opinion and you send it out to your seven colleagues who agree and they will respond back and say,

24:00

I agree with everything except this part here on page seven. This is, I won't join your opinion with this in it, but if you rephrase it this way,

24:06

I could join that. And there's some, not a ton, but there's some kind of negotiations, the wrong word, harmonizing, really.

24:13

Yeah, I was going to ask, is there, does that get corrected? You just answered. Yeah, I wouldn't say, Scalia said it wasn't negotiation because, well, he said some people did that, but it was frowned upon because he's like, you know, either they're right or they're wrong.

24:25

Like, what, you know, how do you, what do you mean horse trading? Like, well, does it mean what it says or does it not? You know, well, what if it kind of means what it says?

24:32

You know, he didn't, he didn't like that. And then they will, once that's the case and it's, it's all settled and they've, they've decided and they've written the majority and dissenting opinions, they are compiled and then they're released on what are very unimaginatively called opinion release days in the spring.

24:49

Generally, like I said, generally starting in like March, April, something like that. They'll begin releasing opinions.

24:57

They release them at 10 a .m. on, on the website. And then also the clerk will come out into like a waiting room and actually hand out paper copies to the various reporters.

25:06

And they have interns because they're not allowed cameras or anything in this room. But the CNN and Fox and MSNBC, whoever else will have interns in the room.

25:14

They're given a paper copy and then there's this fun tradition called the running of the interns, where they sprint from the Supreme Court building down to whatever road it is right in front of it to hand the opinion to the anchor.

25:23

And he's shuffling the pages live on there. It's like, oh, Trump wins. You know, that's basically it. So, yeah.

25:29

Just one thing. I just know I wouldn't do that. Just wouldn't run with an opinion. I don't sprint. No, no.

25:34

I'm, I'm, I am in training for my first half K. Half K? It's about, about 1500 feet.

25:40

Okay. Just go with special K instead. That was my nickname in high school. Was it really?

25:45

It was key? Oh, gosh. I'm sorry.

25:51

That's okay. This is for the audience just to, just because that's what I'm known for is a little bit of fun.

25:58

A little bit of fun. All right. So Trump wins. Yeah. So did Trump win?

26:03

I guess that's a, that's the next logical question. Did he win? So, um, that I don't even,

26:09

I was going to say, you know, that scene from Ghostbusters, but I don't even have to preface it with that because you're Keith.

26:14

That poster over there proves it. Yeah. So basically, uh, to the, to the listener, you've heard this decision,

26:21

Trump versus United States comes out. And, uh, you have that scene in the mayor's office and Ghostbusters, dogs and cats living together.

26:29

Mass hysteria. Yeah. Basically what you're talking heads are saying. And unfortunately, a lot of your folks on the right are like total

26:37

Trump victory. He destroyed them. No, no, that's not what happened. That is, that is not the case.

26:43

The president is not a King. The president cannot assassinate his political opponents just because he feels like it and have immunity.

26:49

That's not what happened here. So. Okay. Let's start with the facts of the case.

26:55

So Donald Trump, gosh, I'm going to alienate half the audience here. Donald Trump loses the 2020 election.

27:02

Okay. The rest of you can just come on down. So he loses the 2020 election. Ostensibly.

27:08

Yeah. Ostensibly. He loses the 2020 election. I don't even know what that means. It just sounded like the right word at the time. Ostensibly. Yeah, I didn't say it right.

27:15

Ostensibly. There you go. So he loses the 2020 election. And he, of course, doesn't concede.

27:22

Right. And so between November 3rd, I think was the election day. And when Joe Biden was inaugurated on January 20th, that's about a two and a half month period or something like that.

27:33

And during that time, he is still the president of the United States. And he begins taking various measures to try and they keep saying overthrow an election.

27:41

No, he was pursuing legal remedies in most of these cases, appealing to the Supreme Court, appealing to whatever to to try and and again,

27:50

I don't want to say change the outcome to try and I guess verify what he believed was the true outcome. And so he was for these actions, there were cases where he would call local election officials and say, you know, the one with Brad Raffensperger in Georgia, I need you to find me 11000 votes or whatever, which was clipped wildly out of context because he cited three or four different issues that he saw with the

28:12

Georgia election. And he's like, I need you to look into this because there's fraud there. You can go and find it.

28:18

And in fact, it's not his point was it's not small scale fraud. It's not one mail in ballot. If you could find 11000 votes, you would change the outcome of the election.

28:27

That's what he was saying. And then it was like, I need you to go find me some. I need you to go find me some. Yeah. Find me some guys that are willing to sign a card.

28:34

Yeah. Find me some votes sounds very corrupt or whatever, but that's not what he was getting at. So he did that.

28:40

He gave the famous speech on the Ellipse on January the 6th, where he was saying we're going to fight like hell for our country and stuff like that.

28:49

Just very inflammatory rhetoric that I wouldn't have given that speech, honestly. But he explicitly was calling for peaceful action and all that.

28:58

And so anyway, Jack Smith, a special prosecutor, is prosecuting

29:05

Trump and he's prosecuting him now three years or two, two and a half years before he waited to file charges.

29:13

So there's this narrative that the court system in the Supreme Court's been slow walking this so that Trump can get to the election.

29:20

Well, it was the special counsel that spent two and a half years before he finally filed the charges. So, you know, what?

29:26

Anyway, if he's an imminent threat to democracy, maybe ought to have gotten on that a little bit faster. So he says he files a bunch of charges under various federal laws about obstructing

29:36

Congress and stuff like that. OK, so the Supreme Court rather works through the district court in D .C.,

29:44

then the district the D .C. Court of Appeals. And Trump's main argument is something called presidential immunity.

29:50

What he's saying is that a president is broadly immune from any kind of federal prosecution while he is in office on the basis of a few different arguments.

29:59

One, he is the executive, right? Like he's the executive power shall be vested in a president of the

30:06

United States, says Constitution Article two, section one or clause one section, whatever. The first thing in Article two, it shall be vested in the president.

30:14

That's law enforcement power. So you can't like it's like hanging yourself.

30:21

I mean, you can't that doesn't work. You can't do that is his argument. And furthermore, that it would violate separation of powers issues if you have people trying to, you know, muscle in on the president's role and stuff like that.

30:34

So his argument was basically, I cannot be prosecuted for anything ever while I'm the president, like nothing ever.

30:42

And what about things like impeachment? I mean, he's not saying he can't be at fault.

30:50

Well, so the that's a good that's a great question. The impeachment provision in the Constitution is primarily a political rather than a judicial process.

30:56

So the House impeached him twice on completely ridiculous grounds both times.

31:02

And it was a party line, but he didn't leave. I mean, it wasn't like I mean, you know, when

31:08

Nixon was impeached, he resigned. Is that correct? So impeachment, there's two stages.

31:14

The House impeaches and then the Senate votes to acquit or to remove. So impeachment is all impeachment.

31:23

The House acts as a grand jury in that case. The House is saying there's enough evidence here to send this to a trial in the

31:30

Senate. That's all impeachment is. So Bill Clinton was impeached. Donald Trump was impeached.

31:38

Various other federal officials have been impeached, and a few have been removed by the Senate for bribery, corruption, things like that.

31:44

But a president has never been removed from office. They've been impeached, but they've never been removed from office.

31:50

Was I right about Nixon, though? Didn't he leave? Nixon resigned before impeachment proceedings started, because he saw the writing on the wall of what was coming.

31:58

So he was he knew it was coming. He knew it was coming. Yeah. And we'll get into Nixon in just a minute, because Nixon versus Fitzgerald is a very important precedent that the

32:08

Supreme Court relied on a lot here. So OK, so what does the ruling actually say?

32:13

So President Trump, basically his legal team alleges that the president has broad immunity to basically do whatever he wants while he's in office.

32:19

They shot for the moon. And the Supreme Court didn't give him that. Now, again, in spite of all the sky is falling narrative, the

32:26

Supreme Court did not say the president has absolute immunity in all cases. They they decided to think in categories and be careful about this.

32:36

And they said he has absolute immunity for any actions that he undertakes in what they called his core constitutional duties.

32:45

So the things that the Constitution explicitly, directly black letter gives to the president, you cannot ever criminally charge him for doing any of those things, because to do so would mean if you let me put it this way.

33:00

If Congress passes a law that says Action X is illegal, that's Congress's prerogative under the under Article one with their legislative powers and they can the president has to sign it.

33:10

But let's say they override his veto and they criminalize the act of having, I don't know, something that's silly.

33:17

OK, if it interferes with the president's core constitutional duties, the

33:23

Supreme Court says that's not OK. That's Congress reaching into the executive branch and dictating how the president has to act.

33:30

And that's not OK. It's not allowed. Yeah, that's again core constitutional duties. And because you want the president to be able to act well, you mentioned the separation of powers that you you want them to be able to be a check and balance for each other, but not to have ultimate authority over each other.

33:49

The Supreme Court, I've said this before on the show, whenever it comes up, the Supreme Court is not in the business of saying what is right and wrong.

33:54

The Supreme Court is in the business of saying who gets to decide. And if we get to go to Loper Bright and a little bit, which was the

34:00

Chevron overturn case, we can talk about that. Dobbs, which overturned Roe v. Wade, did not say abortion is good or bad.

34:06

Alito opens the opinion by saying it's a tremendously contentious issue about which everyone has a lot of opinions.

34:13

What we are saying is the federal government in the 14th Amendment never had anything to do with abortion.

34:19

And it explicitly says we return the issue to the states, the people and their elected representatives. So it was not saying whether it's good or bad.

34:25

It's just saying we don't decide that they do. And so that's separation of powers principle.

34:32

You know, and sometimes there's a power separation between the federal government and states called federalism that comes into these cases. So in the

34:38

Trump case, they said he has absolute criminal immunity for his core constitutional powers. Let me give you an example.

34:43

The president has unilateral pardon power. OK, so the president gets to pardon anyone from a federal offense that he wants to.

34:52

This is unbounded, right? So Clinton, Bush, Trump, Obama, they all pardon people on their way out the door.

35:01

And most of the time it's a gang of scumbags. I was going to say, and these are guys who are legitimately guilty.

35:07

Convicted and duly convicted and serving time. And there's no there's no question whether or not they're guilty, really, in anyone's mind.

35:13

But the president under our constitutional system has the ability to grant pardons and reprieves and no one can challenge him on that.

35:20

That's a unilateral power that he has, or a plenary power, I should say. Even if the president was handed a sack of money and said, would you issue this person a pardon because I gave you the sack of money and he does so, he cannot be prosecuted for doing that.

35:36

He can be impeached and removed if it's midway through his term. But again, that's... But if he's walking out the door.

35:41

Which is why they are always done as they walk out the door. Yeah, absolutely. That's why pardons are always offered, usually on the last day of the term.

35:48

And every cousin of every president who's in jail is sending a letter after the letter.

35:54

They have a specific office within the White House to handle just those. Remember when we used to play as kids?

36:00

Yeah. Mr. Joe Biden. I mean, you know, was Joe Biden ever a kid? I don't know.

36:05

Maybe in the Great Depression. But we're heading back. Yeah, exactly. If he was

36:12

Joe Biden, Joe Biden's inauguration date or rather Joe Biden was born closer to Lincoln's inauguration date than his own.

36:22

Think about that for a second. Hold on. I just want to mark the fact that this is at the 34 -minute mark because that's going to be the opening line of today's show.

36:30

There you go. I do that. I put this little snippet in and the fact that that's awesome.

36:36

Yep. So just in summary, they said core constitutional duties.

36:41

The president has absolute immunity. Okay. They said now there's a second category.

36:46

What we would call the outer ranges of the president's official duties. So this is stuff that's kind of like it doesn't it's not explicitly spelled out in the

36:56

Constitution, but it's heavily implied. So the Constitution, for instance, says that the president shall take care that the laws are faithfully executed.

37:03

Okay, so what what exactly does that mean? And the president has traditionally had a large amount of of latitude on how it is that he wants to enforce that.

37:12

So if the president doesn't, you know, doesn't enforce a law in a manner that you like, if he doesn't go after drug smugglers or what or I have to say this, and it's not everyone's favorite thing to hear.

37:25

If he doesn't enforce the laws that govern the security of the southern border in a way that you like.

37:32

Sorry, you can't sue him for that. You could sue perhaps the

37:38

Department of Homeland Security and say that they aren't doing their job and you could try and get a court order to make them start doing whatever.

37:46

And you might get a little traction there. But the idea of a court forcing the president to enforce laws in a particular way, generally speaking, has not been allowed.

37:55

There's a case, Massachusetts versus EPA, where it kind of was. And so I don't anyway, we topic for another time.

38:01

But but the point is, that's what they would call the outer periphery. And they say you have the president has presumptive immunity, presumptive immunity, not absolute.

38:10

OK, so what they're saying is he is your your any court hearing a challenge to an action taken in this outer perimeter of his duties.

38:18

You are to assume to presume him immune unless you're given specific compelling evidence otherwise.

38:26

And what they said was whatever judgment you come to on that. The standard you set cannot interfere with his execution of his duties, and it cannot interfere with the executive being the executive.

38:39

OK, that's the second category. The third category is what they call unofficial acts.

38:45

And they say the president has zippity doodah immunity for these. If the president is not acting in the capacity as the president of the

38:52

United States and he commits a crime, he has absolutely no criminal immunity whatsoever.

38:58

He goes out to eat with some friends and he doesn't pay his tab and it wasn't hosting an ambassador or something like that.

39:05

And he just skips out. Yeah. Get him for shoplifting. You absolutely can do that. That's the thing. President Donald Trump charged with dine and dash.

39:13

Basically, yeah. Like he didn't tip the waitress or whatever. So, yeah. So those are the three categories. And the way

39:19

I I came up with this analogy because I think it's instructive. So, Keith, you have children.

39:26

You have four beautiful children that are in your house right now. Yeah. Do do they like to read?

39:33

Things they want to read. Yeah, sure. I mean, they enjoy reading. Do they ever get into a dispute over who gets to read the book at that time?

39:42

Yeah. I mean, yeah, sure. So let's assume for a minute that there's a book that they all want to read.

39:48

And so normally I imagine books in your house go on the shelf and whoever wants to read them at that time goes and gets a book and they read it and then they put it back.

39:55

And there's not really a whole lot of conversation. Like there's no real disputes going on here. Yeah. Well, if push came to shove, though, and there was constant bickering between everybody about who gets to read the book right now, eventually you would have to lay down some rules as the father and say,

40:09

OK, here is how we're going to do this. All right. This kind of case is so unique. And Roberts actually notes this at the start of the opinion.

40:16

He's like, this is the first time a president has ever been criminally charged for actions taken while he was the president.

40:22

Like he notes the gravity of this case. He says, this is weird. And it's very much implied where he's like, guys, can we just rely on our norms?

40:29

Do we have to be prosecuting former presidents right now? Do you is this really what we're doing? OK, fine.

40:35

I guess it's been brought to the court. What are we going to do? Not decide it. So you can the tone of the opinion.

40:40

Roberts really doesn't want to deal with I kind of feel like he's the frustrated parent dealing with kids sharing books.

40:46

OK, so, Keith, back to your situation. Let's say after all these squabbles and disputes, you laid down some rules and you said, all right, everyone can have the book for 10 minutes.

40:55

And then after 10 minutes, you have to give it up to your sibling if they want to read the book then. OK, so sibling one gets the book.

41:03

And they start reading it upside down and they start skipping every other word and they only read the vowels or whatever.

41:11

OK, sibling number two comes to you and says, dad, they're reading the book wrong. Well, you would say that's a core part of reading.

41:18

You may they may be reading it in a way that you don't like or you think is dumb, but I let them read the book for 10 minutes.

41:23

And so they get to read the book. They are absolutely immune from your charge against them because they are they're doing they're doing it in a way you don't like, but they are doing it.

41:33

So let's say instead of reading the book, they put the book on their head. They used it as a hat. They they sat on the book without damaging it.

41:41

They did a bunch of other stuff that could potentially be kind of considered using the book, but it's kind of on the outer edge.

41:48

Well, then you would say, all right, look, I don't think that's a good use of the book. I think that's dumb. You think it's dumb, but it's it's not harming anything.

41:57

It's still technically they still get their 10 minutes. We have to presume that whatever they're doing is probably fine unless you can show me a reason why not.

42:04

Yeah. Then there's a thing they could do called beating their siblings with the book, throwing the book through a window, throwing the book into a lake, setting it on fire.

42:11

There you go. You would say, OK, that is no way covered by my grant of 10 minutes to read the book.

42:17

You'd say there is no immunity for that. I, as the father, judge, jury and executioner, am going to come and say

42:22

I'm taking like you can be I can put you in trouble for that. I can spend time out, whatever you guys do.

42:28

I can discipline you for that action. OK, yeah, that's really what we've got here is that the grant of authority in this in this analogy, you're the

42:35

Constitution. The grant of authority to the president is he can do this, this, this, this and this. OK, so as long as he's doing that, even if he's doing it in a way that you don't like you and if he's pardoning people you don't like, if he's receiving ambassadors from countries you don't like, you can't hold him criminally liable for that.

42:50

And even if it's kind of on the outer edge, you have to presume what he's doing. You have to presume he's immune unless you can show a specific reason why not.

42:58

But if he's setting the book on fire, then there is no immunity for that. Yeah.

43:04

So all of these hysterics that people went into about the president's going to use the military to kill his opponents and whatever else, that would be an unofficial act.

43:12

That would be so far outside of the bounds of what the Constitution allows the president to do and would also trigger immediate impeachment and removal from office by Congress that the

43:23

Supreme Court, in the majority opinion, they set out this three category thing. They sent it back down to the district court and they said, you have to decide his conduct on January 6th, his conduct talking to election officials, stuff like that.

43:35

Were these official acts or were they unofficial acts? And that really matters because they're asking the district court to figure that out.

43:43

All right. So when we talk about the subject of the Donald Trump case, obviously this case has a lot of emotions for people because a lot of people feel like the only reason he's being prosecuted, the only reason why there, you know, anything's going on in New York or any of these other cases that he has been prosecuted is because he's made political enemies and the politicians are using this, using the law as a sword against him.

44:09

And so I did want to ask you, do you think that's fair? Do you think he really has, that the crimes he's committed are worthy of the assault that he's receiving or just personally ask that question?

44:22

Well, on a personal level, I'll lay out my bona fides.

44:29

I have been a conservative ever since I can remember. Mike Pence's whole thing,

44:36

Christian, conservative, Republican, in that order, basically summarizes my viewpoints.

44:42

I have a personal dislike and one might even say detestation of Donald Trump on a lot of different levels.

44:50

And I know that among the audience, that may be extremely controversial and that's fine. I detest what he's done in a lot of ways to the

44:58

Republican Party on every issue, basically except for immigration. The party has moved rapidly to the left on spending, on abortion, on a whole bunch of other things at the behest of Donald Trump.

45:10

He just primaried Bob Good, who was the chair of the House Freedom Caucus, the most conservative Republican, the most conservative lawmaker in Congress, other than one certainly in the

45:20

House, primaried him because Bob Good endorsed Ron DeSantis in the primary. And Trump, his ego just couldn't take it.

45:26

He had to take Bob Good down. And so he did. The House Republicans have moved far to the left under Trump.

45:32

I hate that. And I will be glad when Donald Trump is no longer a force in politics.

45:37

And again, whatever, people are going to get mad in the comments. Go for it. I will not read any of them. That said, that said, these cases are ridiculous.

45:49

They are on their face ridiculous. They are an attempt to just get Trump, basically.

45:55

They are not, by any stretch of the imagination, fair or impartial.

46:02

And you're including – are you just including the Supreme Court thing or the thing that happened in New York? The New York one was the most laughably ridiculous of them all, where you had –

46:11

I don't even want to go into it because it makes me that annoyed, but basically where you had the prosecutor taking what was a misdemeanor, attaching an intent clause to it, basically bolting it onto a federal statute so that he could extend the statute of limitations out from two years to five years so that he could get a – it was a complete cluster of stuff that was just utterly ridiculous.

46:36

That was – that truly – like Trump says witch hunt whenever anyone came out. Like that was a witch hunt. That literally was let's just – let's just Lego and duct tape some things together and throw something at him.

46:47

The case in Georgia, the racketeering charge by Fannie Willis in Fulton County, ridiculous, completely ridiculous.

46:55

That case was a bunch of Trump campaign people getting together to say what legal options are available to us to get the electoral vote from Georgia for Donald Trump.

47:06

Literally it was a legal team doing what legal teams do, and they got them for racketeering. It's stupid. The one by Jack Smith, which is the

47:13

Supreme Court case, Jack Smith, the prosecutor charging Trump with obstruction of an official proceeding and deprivation of rights because he said some things and he called some people and asked for local election officials to do this or that, and that denied people's right to vote, utterly ridiculous, completely without merit.

47:32

The only one else that has some legs to it would be the classified documents mishandling charge. That one is down in Florida, or I guess we're here in Florida, down in South Florida.

47:41

That one may have some legs, I'll just say legally. But again, my detestation of Donald Trump aside, this is absolutely a partisan game.

47:50

And back to the book analogy, the Supreme Court, again, just seems really annoyed that they even have to deal with this because in the past, you just wouldn't do this.

47:59

Like you just wouldn't. By convention, you just wouldn't. And so you as a parent, again, if your kids harmoniously share the books, you don't have to lay down rules.

48:07

But it's like, all right, y 'all can't play nice. So now dad has to come in and say, here's how this goes.

48:13

And here's how this goes. And here's how this goes. That's what this opinion is. It's the Supreme Court saying, we would really rather you just not prosecute former presidents because that's gross and a degradation of our legal system and all these kinds of things.

48:26

But if you're going to do it, fine. Here are the bounds in which you may do it. That was really what this case was. Got you.

48:32

Well, that's super helpful. And I think the book analogy helps, brings it down to at least where I can understand it.

48:42

So thank you. But now I want to move to a different case because you said something on the phone to me when we were talking about we were prepping for the podcast and, hey,

48:52

I actually do plan these things out. He does. Ladies and gentlemen, he does. And we have pre -show discussions.

48:58

And in our pre -show discussion, we talked about the Chevron decision.

49:04

And so moving away from Donald Trump a little bit, the Chevron, something you said in your phone call to me, you said you believe that the

49:13

Chevron decision is the most important Supreme Court decision in the last 100 years.

49:19

And you included in that even more so than the Dobbs decision, which was what struck down Roe v.

49:25

Wade. Am I right about that? Kind of. What I said was Dobbs is the most important decision in the last 100 years, maybe in the court's history, on a moral level.

49:36

OK. On a function of government level, on a freedom of the everyday citizen level, the overturn of Chevron versus NRDC.

49:48

Yeah, NRDC in the form of the case that just came out, Loper Bright Enterprises versus Raimondo, in terms of law, in terms of how does the government function, that's the most important one,

49:58

I think, in the last 100 years. Gotcha. So for a guy like me who can literally say, the only thing

50:03

I know about Chevron is they're too expensive with their gas, and I go to the kangaroo. So what is it that Chevron did or didn't do that made this case?

50:16

Yeah. So back in the 1970s, we had Jimmy Carter as the president in the final days or final years of the 70s.

50:24

And Jimmy Carter's EPA under – so OK, so here's how this works. Congress passes something called the

50:30

Clean Air Act. And the Clean Air Act requires the EPA to regulate sources of pollution,

50:38

OK, among other things, but it regulates sources of pollution. All right. The EPA, empowered by Congress – the

50:45

EPA is an executive agency under the purview of the president, but the EPA, empowered by Congress, then goes and does that. They put forth what they call rules and regulations that say you cannot emit more than this much and this much and this much,

50:55

OK? So Congress has delegated authority to the EPA to make these calls. Under the

51:01

Carter administration, the EPA required – or rather, the law required the

51:07

EPA to do an environmental impact study any time a source of pollution is going to be substantially changed.

51:16

OK, well, what's a source of pollution? So they bickered back and forth about that. Under the Carter administration, if you had, say, a –

51:23

I don't know, a car factory and you have 20 different smokestacks on the car factory because you've got a paint booth over here and a smelting – whatever.

51:31

You've got a bunch of equipment putting off emissions. Under the Carter administration, they considered every smokestack to be a source.

51:37

And so if you wanted to make a change to one of your machines, any machine that would impact how much comes out that stovepipe, you had to do an

51:44

EPA environmental impact study and they had to sign off on it. Well, under the Reagan administration,

51:50

Reagan's EPA administrator changed that, and he said, actually, what we think a source means is the plant as a whole.

51:57

So if you're going to increase emissions on this stovepipe at this end of the building but you're going to decrease them on that end of the building and you're netting zero, you do not need an environmental impact study.

52:05

The EPA doesn't need to be involved in this because you're netting out at zero. So a single plant was considered a source under Reagan's administration.

52:13

Okay. I have to stop you only because this is what Walter Peck was doing at Ghostbusters.

52:19

Yes, he was. He wanted to do an environmental impact study. So those of you who think like me, this is all about Walter Peck.

52:27

It basically is. Who's the actor's name that played him? Do you remember offhand? I hate that I don't know the answer to that.

52:33

My brother would know. I don't know right offhand and it's killing me. He played such a good jerk.

52:41

He was the jerk in Die Hard. He was the jerk in, oh man, and he played the mayor in the new

52:48

Ghostbusters. I don't know if you've seen the new Ghostbusters. No, I haven't. He actually played the mayor. You looking it up?

52:54

I am, yeah. Actually, I have to know now because, wow, the first result is on Hatesync wiki because people hated him that much.

53:03

William Atherton? Yep, William Atherton. Okay. So apparently he was hated so much for that role that people would get into verbal altercations with him on the street.

53:11

I love it. I just love the fact that people are so dumb because that's the type of dumb that just people can't separate the real from the fake or the actor.

53:22

Yep. All right, so that brought us up to speed. This is all about Walter Peck. Yeah, exactly, basically. So Reagan's EPA said if a plant changes one smokestack, provided that they counterbalance somewhere else, they don't need to get an

53:34

EPA impact study. All right, so there's this group called the National Resource Defense Council, which sounds very official.

53:40

Basically, it's a bunch of greenies that are mad about pollution, want us to all live in caves and eat plants and stuff.

53:45

All right, so they're very mad at Chevron because Chevron does things that Chevron does. Chevron maintains oil refineries.

53:51

So Chevron made a change at one of their plants, and under Reagan's EPA rules, they did not need an environmental impact permit study thing because they'd offset the change somewhere else in the plant.

54:03

So National Resource Defense Council sued Chevron and said the EPA needs to step in basically and make them do the full environmental impact study because we disagree with the

54:14

EPA's understanding of the law. Well, it got all the way to the Supreme Court, and what the Supreme Court ruled was in Chevron versus NRDC, they said if Congress creates a law that empowers an agency to do something, the

54:27

FBI, the Department of Commerce, whatever it is, and there's an ambiguity. It doesn't define what a source is in this case.

54:36

Then courts should defer to what the agency thinks, OK? If the agency says we think a source means this, then courts should not examine that decision.

54:49

They should just say whatever the agency says, that's what we're going to go with unless it's clearly ridiculous and dumb.

54:55

Basically, they set a very high legal bar for overturning agency action, OK? What this did was it sounded like a good idea at the time because it meant that you couldn't have courts just second -guessing the executive branch's decisions because they personally didn't like it.

55:09

It was an idea of judicial restraint that the courts are not going to be activists and all that. So it sounded good. The problem is how it's played out.

55:16

So after Chevron was decided, basically any time the federal government wanted to do something and they could have some tortured, twisted reading of a statute that maybe might kind of sort of mean it, and you brought suit against them saying, hey, these new rules are going to put me out of business.

55:32

You can't do that. They would point to some law somewhere and say, yeah, well, it kind of looks like it, so we're going to go with it.

55:37

And courts would just have to go, well, the feds have spoken. I guess that's it. And that was how cases were decided.

55:46

So did you want to say something there? No, no, no, I'm just, did you ever hear about the story?

55:53

I guess I did want to say something, but it was just, it was on my mind. Did you ever hear the story, the Killdozer story?

56:00

Yes, I did. Marvin Hamire in Colorado. I forget the city name, but yeah. I didn't even know his name.

56:06

I just know, you know, he had the muffler shop and his, you know, they cut off all access to it.

56:12

He tried to, he bought a bulldozer to make his own access and they wouldn't allow him to do that. And the city basically ruined his life.

56:19

So he decided he was going to take vengeance. Granby. Granby, Colorado was the city. I just remembered that.

56:24

And he has become the sort of patron saint of certain portions of our, of our society, which feel like they have been mistreated by the government.

56:35

Correct. And Killdozer Day, it was back in June or May, maybe. Seems like that's kind of the subject, you know, like I've connected it to Walter Peck.

56:43

Now I'm connecting it to him. It seems like, you know, these environmental protection agency or whoever it is could come in and make life very difficult.

56:53

Yeah, yeah. So getting back to the case, the

56:58

Chevron and all that, tell us what the decision, how this all worked out.

57:04

Yeah, so there was a company called Loper Bright Enterprises that they own fishing boats. They go fishing and commercial fishing, right?

57:11

And the Commerce Department of the United States regulates commercial fishing. And so Congress has passed laws telling the

57:18

Commerce Department basically y 'all regulate fishing and do a good job, have etiquette.

57:24

And like very, very, very broad language for the Secretary of Commerce and the department under them to basically do what they want.

57:33

This is an issue because it's, there's something in US law called the non -delegation doctrine, which says that Congress, like imagine

57:40

Congress just said, we're passing a law that says that this guy over here named Dave gets to write all future laws and we're just going to go home.

57:48

Like they can't do that. The Supreme Court would say, no, anything Dave does doesn't count. Congress cannot delegate to that level.

57:54

They can delegate some. They can create a Department of Education and then give it a bunch of laws that bound what it can and can't do, but then just kind of let the

58:02

Department of Education do what it does. All right. So in this case, Loper Bright Enterprises sued because they had,

58:11

Congress had basically told the Secretary of Commerce and the Commerce Department, we need you to prevent overfishing.

58:18

Okay. So that, however you want to do that, you got to prevent overfishing. And so what the Commerce Secretary did was they said, she said,

58:26

Gina Raimondo said, all right, well, in order to do that, to make sure this is happening, we need to put inspectors on the boats.

58:34

Now, normally they would inspect the catch when you got home, but the, the assertion was, well, by then the damage is already done if they've overfished.

58:41

So we need to have a federal inspector on the fishing boat who is checking and weighing the fish as they come in to make sure that they're not going over their limit.

58:50

Dude, talk about the least popular dude on a boat. I'm telling you what, literally federally mandated

58:56

Walter Peck taking up one of your cabins. And it wasn't just that he had to be on board.

59:01

You had to feed him. You had to pay his salary. You had to set aside a cabin. And most of these boats have a crew of like five.

59:08

They don't have a lot of spare cabins. Every square foot they've got, if it's not storing fish, it's losing the money.

59:15

I'm telling you what, Bishop Bullwinkle just called and I ain't gonna say what he said, but you know what he said.

59:20

That's not okay. That is not okay. Yeah. So what was really funny is that during the amicus briefs, which we said earlier were like third parties intervening or whatever, someone filed a third amendment challenge to it, which was hilarious because the third amendment has never been the subject of a

59:34

Supreme Court case. Do you know which one that is? Remind me. Sure. It's the one about you're not, you cannot be forced to quarter troops in your home.

59:40

Oh, that's actually pretty genius because he is a representative of the government. He's not a troop, but he's, I mean. Their argument was he is a law enforcement officer of the executive branch.

59:49

We are forced, because some of these guys, they live on their boats. Like that's their mailing address. They live when it's in port, they sleep on the boat.

59:55

So they said, this is his house. He's having to, he's being forced to quarter troops in his home and pay for it. This is a third amendment violation, which was hilarious because that's never made it to the court.

01:00:03

And I'm disappointed they didn't decide it on those grounds, but it would have been funny. I would have, yeah, I'm all for that. I would have loved it.

01:00:09

Yeah, I mean, I agree with the legal argument. Anyway, so Loper Bright said, OK, this is ridiculous.

01:00:15

You cannot take the Commercial Fisheries Act or whatever it's called and extrapolate this far from it.

01:00:21

So they sued and all the lower courts said, sorry, man, Chevron deference. We got to, whatever the

01:00:27

Commerce Department says, basically they've interpreted the rule we have to defer. So it gets all the way to the Supreme Court and the Supreme Court is not having it.

01:00:33

OK, so you've got some new justices on there, including Neil Gorsuch, who has literally written a book against the Chevron doctrine.

01:00:38

OK, so now a case comes before him where he gets to tear apart Chevron, and I could just imagine him like, you know, intertwining his fingers.

01:00:46

Mr. Burns. Yeah, exactly. Excellent. Yeah, I've waited a long time for this day. So they hear the case and it comes down 6 -3 along the traditional ideological split, which

01:00:58

I will just say a very small number of cases do that in spite of this idea of a partisan divided court.

01:01:04

Most of the time, the splits are not that way. You have Clarence Thomas and Sotomayor on the same side of some obscure bankruptcy case or whatever.

01:01:12

So it's pretty unusual, actually, that you get the 6 -3 conservative liberal split. But they officially and completely overruled

01:01:19

Chevron. They conclusively said Chevron is overruled. And all that really does is it means that lower federal courts, district and appellate level, can now use their brains.

01:01:30

That's what it means, is that if the feds say we believe this law means this and the private party who's suing says, no, actually, we think it means this, a federal judge is now allowed to do what judges do.

01:01:41

What John Marshall said all the way back in Marbury versus Madison, it is the job of the judiciary to say what the law is.

01:01:49

And so that is the job of a judge is to interpret the laws. Chevron put a thumb on the scale and there was a way in which they could override a federal interpretation of a rule, but it had to satisfy a very high legal standard.

01:02:02

So in spite of all the sky is falling stuff, all Loper Bright versus Raimondo did, all,

01:02:08

I say, is that they allowed lower court judges to be judges. They don't have to defer to the executive branch anymore.

01:02:14

If the executive branch has made a judgment that is far beyond their authority granted by Congress, now lower courts can say, sorry, buddy, you stepped too far.

01:02:23

That's what they can do now. Got you. OK, give me a book analogy. OK, yeah.

01:02:29

So here's why this is. Here's why this is so important and why I said it's the most important one in like 100 years, because how our system was supposed to work and how it does work are very different.

01:02:40

Right now, Congress has an over 90 percent incumbency rate, meaning meaning if you're in Congress, you have over a 90 percent shot at being reelected.

01:02:47

It's even higher in the Senate than it is in the House. What that means is that their incentive structure is they pass gigantic bills without reading them that delegate colossal amounts of authority to executive branch agencies, and then they just kind of wipe their hands and go home.

01:03:04

And they let the executive agencies do all of really the rulemaking and lawmaking power.

01:03:10

They get to decide really how far to push this law and how to interpret it or whatever. And then the executive has enforcement authority.

01:03:16

They can put you in jail or fine you. Which would be federal, federal law. Yeah, exactly.

01:03:22

Federal legal, like you go into a federal prison. Exactly. Or be forced to pay some ridiculous fine, you know, whatever.

01:03:30

So what this does fundamentally is it shifts the ability back to the people to have their day in court, essentially.

01:03:37

It means that you're no longer insulated from the judicial process the founders intended.

01:03:42

It rebalances the separation of powers. So on the one hand, you have people saying in the Trump versus United States case, wow, this rogue judiciary, this extremist

01:03:50

Supreme Court is making the president a king. And then in Loper Bright, they were cutting the legs out of every federal agency in existence to just unilaterally make decisions.

01:04:00

They were saying, no, the courts do get a chance to address this issue. Right. And so then this narrative that this is some sort of partisan court that's just empowering the executive, the overrule of Chevron absolutely cuts the legs out of the executive's ability to just do what they want with the law.

01:04:18

Nice. Well, that and that's good. Yeah, no, it is a great thing.

01:04:24

It's a great thing. It's a ruling that has long been needed. I don't think the court knew in 1984 or six, whatever it was.

01:04:31

I don't think they knew exactly how far Chevron was going to go. And Chevron deference has been, you know, in seizure cases, for instance, you know, taking where they condemn property eminent domain, that kind of thing.

01:04:45

Chevron has been used basically where Congress will pass some law that says, I don't know, housing and urban development shall promote good housing or something like that.

01:04:54

It's not that broad, but it's close to it. And they're like, well, we're going to take your property now. And then you had you basically had no redress in court because you'd go to court and say, hey, this isn't fair, whatever.

01:05:03

And they'd say, well, no, this could conceivably actually we think apartments would go there better than your farm. So, yeah, we have to defer to the feds on this.

01:05:11

And so it greatly. Yeah, well, that's the regime we've been living under. And I'll just say politically, the federal bureaucracy, what's often derisively referred to as the fourth branch of government, the people that survive between administrations in the

01:05:26

EPA, the Commerce Department, the FBI, the deep state, as it's sometimes called, it was a massive kick in the pants to them.

01:05:33

And they're 90 percent voting leftist Democrat. They are very much because that's the that's the party that believes in more federal power.

01:05:43

It's a huge kick in the teeth to them because it means that now it is why the left hated the decision so much, because they knew that even under a

01:05:52

Trump presidency, all the people in the administrative agencies could put the brakes on anything the president wanted to do.

01:05:58

Not any hard way, but if Trump had a very strong policy preference that he wanted to implement as the executive, they could slow walk it.

01:06:05

They could drag their feet. They could lose that email, so to speak, or whatever. Well, now and then under a

01:06:12

Democratic president, of course, they would run full steam ahead to implement whatever it is that he wanted. Now, though, that unaccountable fourth branch of government, so to speak, the federal bureaucracy has been put back under the thumb of the courts in a lot of ways to where citizens can actually have their day in court and have justice.

01:06:29

And it's a beautiful thing. Well, we can praise the Lord for for things like that.

01:06:35

All right. Lightning round. Lightning round. Getting to the end of the show. First of all, I want to say before we get to the end,

01:06:41

I'm so thankful for our friendship. I'm thankful for the things that you've – and people may not know this, but God brought us together through a

01:06:51

James White debate. That's 2018. And ever since then, our friendship and brotherhood has increased.

01:07:00

And I'm so thankful. Yeah, me too, man. So as we finish, there's several other cases.

01:07:07

Unfortunately, time won't allow us to do what we did with Trump or with Chevron. Give us the why these matter, what they were and why they matter.

01:07:15

How many are there? Four. OK. Let's do lightning round four cases.

01:07:21

Give them to us. OK. So the first one is Fisher versus United States. This was a case where someone was convicted of doing bad things on January 6th at the

01:07:31

Capitol riot thing. They were charged under 18 U .S. Code 1512c2.

01:07:38

You don't care. Anyway, the point is that was something that was passed after Enron. So after the Enron scandal, this big accounting scandal, it said – any – section one of this area said if you destroy or – basically, you cover up evidence, you destroy evidence, then you can be sent to jail.

01:07:56

And then section two said if you do that or otherwise interrupt an official proceeding, then you can be put in jail.

01:08:03

Jack Smith and his gang have been using this to go after people on January 6th. They said it's an obstruction of an official proceeding because they were trying to obstruct the votes of Congress, therefore.

01:08:12

Well, the Supreme Court ruled no, actually. This is in the context of destroying documents. So you have a specific thing where it says if you destroy, corrupt, mutilate, alter whatever documents or otherwise obstruct an official proceeding.

01:08:26

So you and I, as we read that, would know that the second part is building off of the first part. So this is in the case of witness tampering, things like that.

01:08:33

The Supreme Court said no, Jack Smith. People going into the Capitol building and being idiots can be charged with trespassing or if they punched a cop, they should go to jail for that, of course.

01:08:40

But just going in there and delaying Congress, you can't charge that under this statute. OK. Got you. That was Fisher versus United States.

01:08:46

Yeah. Second one, Securities and Exchange Commission versus Jarkizy. OK. So this is does the

01:08:52

Seventh Amendment exist, basically. The Seventh Amendment says that the right to trial by jury shall be preserved in all suits, all criminal cases and suits at common law exceeding $20, which inflation is a funny thing.

01:09:06

But that's how it was written into the original Constitution when 20 bucks was a lot. It's funny because everybody knows who is watching this that I didn't know what the

01:09:14

Seventh Amendment was because I just happened to be recording my face at the moment you said it and I went.

01:09:21

So the Seventh Amendment guarantees your right. I know the Seventh Commandment. Hey, that's actually more important. Yes, it is.

01:09:26

The Seventh Amendment guarantees the right to trial by jury. And so the Securities and Exchange Commission, this case relates to Loper, Bright and Chevron.

01:09:34

The Securities and Exchange Commission has been granted basically plenary power to take your stuff. So if they come to you and say you have committed securities fraud, they can fine you and just take your money and you can appeal the decision.

01:09:50

Guess who you can appeal it to? To the Securities and Exchange Commission. Which means nothing. Well, basically, yeah, a larger group will decide that they were right.

01:09:57

That's basically what was happening. And so and the argument they were like, well, it's an administrative penalty.

01:10:03

It's not really a suit at common law or whatever. And the Supreme Court said, no, no, no, honey.

01:10:08

OK, listen, Congress passed this law that gave you the power to do this to prosecute fraud. Fraud is in our legal history one of the most common things that is done at common law.

01:10:20

Contract fraud, for instance. This is a common law thing. The Constitution says you get a jury trial if the amount exceeds this.

01:10:27

Therefore, people who are the SEC, not football, who come after them and want their money, they get their day in court as well and they get a jury trial.

01:10:36

OK, and again, everyone lost their minds over this because they were like, oh, yes, the AP headline was like Supreme Court strips

01:10:43

SEC of crucial fraud enforcement tool. No, they didn't. They said, y 'all go ahead and do it, file for whatever amount of money you want to take for them.

01:10:52

But they get a jury trial. They get their day in court. They get due process. That's what Jarkizy was. Good city of Grants Pass, Oregon versus Johnson.

01:11:01

This was a case where the city of Grants Pass in Oregon passed a local ordinance that said it was against vagrancy and homelessness and stuff like that.

01:11:12

They said you can't you know, loitering law basically is what it was. And the Ninth Circuit, which is often called the Ninth Circus Court of Appeals because they're a bunch of nutters, ruled that actually making homeless people obey vagrancy laws is cruel and unusual punishment under the

01:11:26

Eighth Amendment. You're not allowed to do it. Which like what? So why have the law can't enforce it?

01:11:34

Well, they said it's cruel and unusual punishment. And then the Supreme Court, the majority opinion was like, no, this is a basic vagrancy law that we've had since before the

01:11:43

Eighth Amendment existed. And we've had it for the last 240 years of our nation's history. So no. And then the dissent was this bunch of emotional whining about it's going to be terrible for people sleeping in the cold outside.

01:11:54

Listen, as a Christian, I feel for that. I care about those people.

01:12:00

I don't want people sleeping in the cold overnight. That's bad. But I also don't think it's an Eighth Amendment violation if a local government says, hey, you can't do that.

01:12:09

That's my stance on it. Like I have compassion, but on a legal matter, no, this is not an Eighth Amendment issue.

01:12:14

Yeah. When this isn't enforced, and maybe I'm wrong, so correct me, but we see states that have become,

01:12:23

I mean, just tent cities and there's no way to enforce. I mean, I've seen videos, unfortunately, that have come across my

01:12:30

Twitter feed and stuff of people defecating in the street and urinating. And there's no recourse.

01:12:36

There's nothing that can be done. Well, in a lot of those cities, that's because that's what the people voted for.

01:12:41

But in this case, the people voted for an ordinance that says, yeah, this local government will have the power to do this. The Ninth Circus stopped them because they said, oh, this is cruel and unusual punishment.

01:12:50

Again, I feel for homeless people. I do. And our church would feed and clothe a whole, like absolutely.

01:12:57

But like as a legal matter, this would have put trespassing statutes in jeopardy. It would have done all kinds of stuff to lock it behind the

01:13:04

Eighth Amendment and say that, you know, anyway. So that was city of Grants Pass, Oregon versus Johnson.

01:13:09

Um, one more U .S. versus Brahimi. This was an 8 -1 decision. It was a bit interesting.

01:13:16

There's a federal law that says if you are convicted of a domestic violence offense, so you jury trot, like all the things you're convicted of a domestic violence offense, you are federally barred from possessing a firearm.

01:13:28

OK, so we do take people's rights away, some of them when they're criminals. You can't vote, for instance. We don't take all their rights away.

01:13:35

Just because you've been to prison once doesn't mean that you now no longer have your First Amendment right to freedom of religion, right?

01:13:41

Like if you're an ex -con, we don't take away your right to worship. But we do take away the right to a jury—or not to a jury trial,

01:13:49

I'm sorry, to possess a firearm. So yeah, a felon can't possess a firearm if they're convicted of a domestic violence dispute—or not dispute, but they're actually duly convicted under, you know, an applicable state law.

01:14:02

Now, it was interesting because it was an 8 -1 decision. Clarence Thomas was the only one dissenting. So again, it wasn't the familiar 6 -3 conservative -liberal split or whatever.

01:14:11

How often does that happen? How often is there that—how often is it all nine of them?

01:14:18

Oh, unanimous decisions? Pretty frequently. If you had to pick 8 -1, 7 -2, 6 -3, whatever, the most of them are 9 -0.

01:14:26

Oh, OK. Most of them are. And the other thing that's important to note is that the Supreme Court only deals with the really tricky questions.

01:14:32

Like, if you look at the selection of questions that they have to address, it's the hard ones. It's the toughest questions that no lower court can satisfactorily deal with.

01:14:42

And so the fact that the pool that they have to deal with is very, very, very tough, and you've got people that have been appointed by presidents of different parties throughout four decades.

01:14:52

And the fact that most of the time—or I'll say at least a plurality of the time—they can come away 9 -0 is really remarkable, and it drives a dagger right into the partisan court narrative.

01:15:02

So what was the overall—you may have already said it, but what was the decision that was 8 -1?

01:15:08

What did the 8 decide? The majority held that you can, in fact, bar people convicted of domestic violence from possessing a firearm federally.

01:15:17

Ever again? Yeah. OK. You can, in fact, do that. What they looked at was that this fit into our nation's history and tradition of firearms regulations.

01:15:27

There were laws against the mentally unstable or ill possessing firearms all the way back into pre -constitutional times.

01:15:36

There was a—it was a fairly well -reasoned opinion. Clarence Thomas disagreed because he said, if you're going to take a federal right -of -way, you need a federal trial.

01:15:46

So his argument was, yeah, the state of Louisiana might have adjudicated you guilty in domestic violence against your spouse, but you didn't get your day in court federally.

01:15:56

So in order for the government to take away your right to keep and bear arms, there needs—since that's a federally guaranteed right, and this is a federal law, you need to have a federal trial, was his argument.

01:16:06

And he was the one dissenting voice. He was the one dissenting opinion, yeah. Yeah. Well, you know, part of me is sympathetic to what he's saying, because I am obviously a big proponent of Second Amendment rights, and I do think sometimes that there's attempts to take people's rights away, you know, that are not lawful.

01:16:27

But of course, obviously, domestic violence is an important thing, and erring on the side of caution, I guess, is the ultimate thought here.

01:16:35

Yeah, well, it's—the majority built their case by saying, look, we take away people's voting rights if they're a convicted felon, or at least states have the option to do that.

01:16:44

Yeah. So this is just, like, another—anyway,

01:16:50

I honestly had conflicting opinions on that, like you did. I didn't quite know personally where I fell on that, because I'm very skeptical, especially of federal reach into that area.

01:17:00

Sure. You know, like, what's the next law that's going to be passed? Is it if you're convicted of, I don't know, tax fraud, which actually is the case if you're a convicted felon in tax fraud or something.

01:17:09

Does that mean you can't have a firearm? I don't think that should be the case, but anyway. Yeah. And again, that's my concern, is what—how could they do a runaround to take away someone's rights just because they didn't want that person to own firearms?

01:17:23

Well, people are concerned that this ruling is going to come into play with red flag laws, which are ones where you're, like, if—and they're very mushy.

01:17:32

If a judge basically says that you having guns is posing an imminent threat, we can take your guns without due process, at least temporarily, and I don't like that very much.

01:17:41

No, me either. Thankfully, all of my firearms went down in that boating accident.

01:17:47

Yeah. Mine were in the live well. All right. Well, brother, thank you so much for your interest in all this.

01:17:57

It certainly has helped me. Like I said, you're my go -to guy when I want to know these things, and hopefully everybody who has had an opportunity to hear you today will be encouraged by it.

01:18:06

So thank you for being a part of the show. Well, actually, I think we managed to anger everybody because I said I don't like Donald Trump, and also this was a good opinion, so that puts me in a tiny, tiny minority.

01:18:15

There you go. You've just—you've equally offended. That's right. That's what we try to do here.

01:18:20

That's right. Your Calvinist podcast. Well, again, I want to thank you guys for being a part of the show today. Thank you for continuing to support the show by listening, watching.

01:18:29

But remember, you can always do one more thing, and that's subscribe if you haven't. And be sure to hit that thumbs -up button if you liked it, and if you didn't like this episode, hit the thumbs -down button twice.

01:18:39

Thank you again for listening to your Calvinist podcast. My name is Keith Foskey, and I've been your Calvinist. May God bless you.