I'm Rich Lowry, editor of national view and host for podcast, called funnily enough, the editors, every week on the editors I discuss with my colleagues the latest news and national controversies. We cut through the cat get beyond the lies and spin and provide in in fact you're not gonna get anywhere else while having it time doing it. In this era of folly, myth and hysteria. You owe it yourself to check out the editors find it on Google play stature tuna in Itunes. We hope to see you soon. What I'm too, the Mccarthy Report Podcast, where I rich Larry, discuss with Annie Mccarthy, on the Mola probe in other legal and national security issues this week

and in a cave trumps pressure Whittaker and the present its emergency declaration on the border here, listening to a national review, podcast villages podcasting sure you d come. We are delighted to have you better, be easier for you and better for us to be made as part of your feet. A Google play stature tune in or Itunes, and please give Annie Mccarthy in this pod cast all the false some praise. They deserve honour, a view on Itunes and now without further do I welcome to this package through the miracle Skype none other than animal protein rich. How are you, good Andy Harry you, I'm doing great buckling, infer big snowstorm out there. We early dismissal today from school. So I guess we're Ike helping its, alas blast of winter, but am I think, I just hate the winter too much. I think we're were

or get near the sun. Is the sun is the stronger you can feel it and somewhere in Florida, baseball's being thrown in anger. So I now I Meda. I made a point last week when we started saying that you know things are looking up with pictures and catches reported, but an the really looking up Romani Machado lawyer, you guys, I just who'd- want to play ten years and sandy yes. Three hundred million dollars makes it makes, and it it worth it, but yeah, that's fuller, sugar, they're ready and also what happened. I thought this is horrible crisis, where a suffering and free agency and no one's getting paid anymore, and then he gets his three hundred million which will be the biggest one until Harper gets is exactly so what's jumping on Anti became his sixty minutes. Interview aired Sunday, he's done some subsequent, interviews and his book is out So

things it would have been explosive if we had already read about them and the New York Times and the most lurid news of discussion of the twenty fifth amendment, possibly invoking the twentieth. the moment and wearing a wire and of office, and these are both things. That's rod, Rubinstein, allegedly sad and that there is some people point out I'm a k backed off a little bed on the view he said, he's resort a casual discussions. You no part in part this chaotic period where their grappling with you know where they stood after the firing James, call me and some people kind of doubt, Mikhail Truthfulness- Clia fired from the FBI for lying, but what do you make of it? Well, I think two things rich first it even though the seams, maybe I'd coming from me. I do want to defend Mackay

from one aspect of the story line. The hearing, which is that he is plotting the twenty fifth amendment with Ride Rosen's time? And I think that if you look at what actually happened, This was clearly rose and stones idea and just a back up. We talked about this little last week as well, but the twenty fifth amendment adopted after the J F K assassination to fix a flaw in the constitution which provided for succession in the event of the death of the president or the impatient of the president, but not did not provide for a situation which the president would be physically and mentally incapacitated to the extent that he was unable for medical reasons to do

the job- it was my cable, but it's because of MC came that we know about this at all TAT is not a lawyer, he did not propose the twenty fifth amendment. Rod rose, Stein proposed it to him, and He apparently went to paper on it in the sense of writing a memo. I believe LISA Page, either co wrote the memo with Mackay LISA page at that time was the year the council to the deputy FBI director, who was making up until he became acting director. When call me fired on May knights of twenty seventeen, but There are either one or two memos from one or both of the cave and page which talk about rose and stones proposals in this frenetic week. After call me was fired,

and I think it's because of those memos that rose and Stein does not feel that can completely deny that. He said these things and that's. Why we ve gotten a story line about how serious it was in that it was just a joke in just a couple of guys organ didn't really mean anything, but in the common Harry I've heard the last few days a lot of chatter of Mikhail and Roll, Einstein plotting a coup. together to invoke the twenty fifth amendment and what I took from the caves testimony was that he basically thought that rose and stones idea was really out there. In particular the idea of invoking the twenty fifth amendment, in conjunction with the idea of have

rose and Stein go in, and tape record. The president, the idea would be Rosen's dying, said that he almost never in fact forgot searched when he went in to meetings at the White House, so he felt he could easily. a recording device on his person and capture the president speaking So the idea was you would do this, this sort of bugging or eavesdropping and make an Rosen's time was hoping that he would capture the presidency something either incriminating or crazy, and then they might be able to play that recording for the vice president for members of the cabinet and get enough of a critical mass of them. That they could involve

the twenty fifth amendment and that was really Mackay, that with I'm sorry it was really rose and stones idea, and I just think you know that there is enough to condemn Mackay over. There is plenty to condemn Mackay, and I don't think he ought to be pilloried for plodding a twenty fifth amendment coup with Rosen's time, because his reaction to this to be that it was a kind of a cook who idea and when he took it to his General Council of the FBI, Jim Baker. He also thought it was a crazy idea. They didn't go forward with it. So I really think,

is more Rosen Stein than any one else. So so, if you're right Ravenstein, I just don't understand how this works. You supposedly, I believe this isn't a capes book of red. So much less couple days I get confused, but I believe the caves has resigned favoured the firing of James Commie, certainly role, the memo justifying the firing of James call me and how do you? turn around. Whatever was eighteen hours four hours. Forty eight hours later and say, dear God, President stays adjust fire the FBI director this? This could be a sign of his incapacity, which is obviously contradiction include incapacity you don't actually You can't fire people or that you know, there's some dark conspiracy on the part of the leave with the Russians on too cut down this investigation when you, you ve, been part of this inside job, and I

talking about the twenty third amendment or wiring yourself, yet the person, who may be there may be a good argument for incapacity in this equation is actually rose and Stein, I think more than anyone else rich, but I think we have to explore both the context and what else went on in the days between the time he wrote the memo and that, on the day that he proposed twenty fifth amendment to the cave, first well. The thing you have to understand about rose and Stein is: he is the classic swamp creature. He is a republic in who was a United States attorney in a blue blue state, which means that the democratic senators of the state had to sign off on his being the United States attorney he's a guy, I think who came into the Justice Department in there. Scholars programme. He came in the Bush years. He rose

in not tax division and then became the. U S attorney in Maryland and finally was tapped for this job. Tromp says at the suggestion of obsessions trumped didn't know him. Evidently before he appointed him, that's not an excuse for not doing your homework, but at what I would point out to our listeners is that in a time when it was extraordinarily difficult too, trumps nominees through the process at the beginning of the administration rod sailed through on a vote of ninety four to six. So this is a I who has cultivated reputation, his entire, you know rise up. The greasy pole of having very good relations,

solid relations with Democrats and with members of of both parties. Just one of these by partisan types is beloved of of everyone and basically a lightweight, and what happens is he gets done? did by Trump, to write this memorandum justifying the firing of call me, and he decides to make it a moment of basically bipartisan come via. He writes the Sir memo, which says essentially the only thing that unites all of us in wash ten Democrats and Republicans liberals and conservatives is everyone agrees. That call we miss handled the Hillary Clinton investigation speaking publicly on it, you, Sir, the authority of the attorney general to decide that there would be no charges and in the memo

since time, make sure to cite Jamie Guerrilla inside other prominent democrats. So its clear one he's finished. This thing which is dated? May ninth of twenty seventeen? He expects to be broadly praised as the bipartisan voice of reason. Ah, who finally got rid of Jim call me the guy who cost Hillary Clinton the election and because I think that frankly, rose and sign isn't the sharpest tool in the shed he doesn't ring. Lies that by this point in time, in the mind of the Democrats, call me has gone from being a villain to being somebody who's very useful to them, because he is the force behind the rush it investigation. He is the guy who, against the same,

protocols that they were complaining about with him going public on. Hillary Clinton goes public in March of twenty seventeen in really stunning house. Testimony saying that there is an investigation of Russia. that as part of it, they are looking into a coordination between the Trump campaign in Russia. in the end, the hacking of the election from MRS Clinton and by the way if they can find any crimes, thinking to indict people with the end of it, which you never even yet and first of all, you never even acknowledge the existence of the oven. Investing action you never mentioned subjects and you don't talk about the possibility of prosecuting people in a counter intelligence investigation. So now call me has gone from being the villain to the hero for the Democrats. At that point, and of course, more importantly, in that moment

in time in May. When call me that when call me is fired by Trump, the Democrats perceived the opportunity to say that Trump is obstruct the Russia Investigation and therefore rod who thought. was going to be a hero for writing. This memorandum instead, is the aid or in a better of the obstruction of the precious Russia investigation. So he expected to be applauded and instead he's catching darts in the meantime, Trump hosts russian diplomats at the White House the day after he, fires call me and runs commies reputation down in for the Russians and makes unbelievably ridiculous comment that firing. Call me he got all this pressure, Russia, relief from him, which you know,

If you dont know all the background here could certainly be taken reasonably by some one to say that he was suggesting that by getting rid of call me That was the same is getting rid of the Russia Investigation and then Trump goes on. Lester halts NBC. Programme, and one halt asked him about the Justice Department recommendation by now call me The trump has been reading in the paper. That basically hiding behind the Justice Department, skirts and he's not being honest and straight about why he fired call me and it way, doesn't have anything to do with with rose and stones memo and Trump comes right out and says. Yeah. Why do really care about what the Justice Department said? I will get a firearm anyway, so now since time is in the position of he's, really

this memo he thought it was gonna, be taken. One way it's been taken, the opposite way. Trump is out there saying crazy things, including to the Russians and then worst of all, four four Rosen Stein Trump is now saying that Rosen's dines memo, which he stuck his neck out to write, is something that, actually matter a bit. the in the long run, because he was going to fire he's going I call me anyway, so now since time is feeling leaguers despondent he's experiencing criticism for the first time in his career. Any feels like tromp has hung out to dry. So in a space of about you know, seventy two hours, or so he went from a situation where he thought he was going to be. A hero to a situation where he was completely reeling, and that was what flipped him I think from

Apparently at the beginning eagerly volunteering to write the call me memo to three days later he's ready to invoke the twenty fifth amendment to get rid of trump something I've been struck by is the well one came in the sixty minutes interview. He discusses and obstruction probe and, and both I guess, maybe it's only pay they who says error to investigations, but there's nothing from me, caped contradicted. So I'm curious way when you think about that. Might there have been a criminal probe in addition to the counter television cartels, moreover, the president to that there's, no there's no additional smoking, gonna piece of evidence that Mikhail sets out that justified, taking this ordinary step of directly targeting the present. It's all basically firing call me and then, and then these statements, where his accounting of them

is, to say the least, not necessarily very thorough you're these references to tromp talking about sure or wanting Ravenstein a mention, Russia an is memo when, as you ve laid out, what trump men in their statements is that he wanted it to be set out They call me had told him he wasn't a target of the pro, which is an entirely different statement than the one that's implied by just saying. Oh, he wanted he wanted Russia in the member yeah. That's right, Richard! I think, to go back to the first part of your question. I think what what may came formally and will will not know this and what we must. We get more disclosure but inferring from what he said that he may have taken to actions. One was to make Trump a subject

The ongoing of the already ongoing Trump Russia Investigation and when you talk about a subject in the context of a counter intelligence investigation, as I've said before the subject of a cat or intelligence agency. Investigation really is always the foreign power, because that's what you're a delving into the intentions of the of the foreign power. But what you are looking at as the FBI by the action, of those who you suspect or clandestine agents of Russia and as a factual matter. I dont think any thing important changed about the Russia Investigation because they always structured it so that they could con Trump into thinking He was not a suspect. They would lock him in the eye and tell him he was not a suspect, but they structured the investor. Asian in a way that he was absolutely a suspect.

and even if his name was not on the file, even if you not being listed as someone they were. Suspecting was a clandestine agent, the context of the cat or intelligence investigate, and even if he was never named in a fine warned as the intended target of the Pfizer surveillance, they structured the investigation so that they couldn't do without collecting the same evidence they would have collected on Trump. If they had formerly said he was a target of the surveillance and he was the target of the investigation. So I think when call me got fired, the cave was failing is Oates and he thought ok we're. Finally, over the hump on Trump We can do two things now. We can now say that he is a suspect or subject of the Counter intelligence investigation and secondly, because his action in firing call me could amount to obstruction of

this will now open a criminal investigation of Trump for obstruction. So my suspicion is that they probably had to investigations that or one criminal one cannot intelligence. Is related to the same set of facts and that's how they were carrying it at that point, but I think again, The was wrong in his legal assessment that, the firing on the FBI director, under the circumstances that it occurred, could possibly be grounds for eight obstruction prosecution, and I think you are quite right that we're not talking about anything else the big smoking gun event other than what we're already talking about, which is the firing of call me that triggered the cave to open the investigate.

To my mind, as we ve been saying, all my cave did, and I think it was because he was pissed off over call me being fired as the as the rest of the bureau was was go overt in or files with something that they would doing anyway, which was conducting under the auspices of a cat or intelligence investigation and investigation of Trump in the hope of finding either a crime that he could be prosecuted for or some form of misconduct over which he could be impeached. So what what's? The standard here I've heard Mikhail described in tv interviews. I do know the term of art, but what? What's the predicate for making someone a target of a counter intelligence investigation? How much do you need

well. What first of all, what you need is a suspicion that the foreign power is up to no good. As far as american interests concerned and then what you need, especially if it's going to be a Pfizer's surveillance rich, is you need evidence? that somebody is wilfully knowingly acting as a clandestine agent of the foreign power and its the loser in terms of whether they can just open investigation verses going to the Pfizer court. If you go to the fire accord and We asked for a surveillance wine. You have to have probable cause that the person that you're dealing with with the person that your citing as a clandestine agent is knowingly acting as a clandestine agent of Russia or of of some foreign power and

in order to get the warrant, if it's an American personally that is an american citizen or of or a lawful permanent residents alien. You also have to show be real. I'm sorry probable cause that the act it is that you are alleging, are knowing clandestine, tilities on behalf of the foreign power or problem All violations of american criminal law, the laws that get suggested in the fire, a statute that we're talking about here would be in the nature of the espionage activities in preparation of terrorism. Using false identities and and the light, so I think, with trumps bits specifically here they would essentially be saying that Trump was a clandestine agent of Russia and that his,

and destined activities were in the nature of espionage and the reason that my I think It's the way he does in these in in these elliptical ways, and he says I e g now I dont know we don't know what we know at the time we had our suspicions, but you know nothing was prove the reason that he he puts things in that kind of squishy way is he doesn't want to say yes to the question Did you really think the president of the United States was a clandestine agent of Russia engaged in espionage, but that's the allegation they were making an honest structuring wouldn't wooden there naturally have needed to shouldn't. They have waited until something was done to obstruct the investing and it wasn't it wasn't, though, the investigation ended. The Dade James call me

a longer headed FBI Plain to fly back from California and yet will rich the obstruction is little but Turkey, because the definition of obstruction is that you have to endeavour corruptly to influence an investigation in it. In that sense, obstruction is very much like conspiracy in that a conspiracy does not have to be successful. In order to be a crime, so you and I can plan to rob the bank and if the cops catch us before, we can pull it off if they can prove that we agreed to do it and we took them action, in furtherance of the agreement. Even if we didn't rob a bank were still guilty of conspiracy, even though we didn't succeed, What we always say about conspiracy in criminal law is that the success of the venture is the best evidence that there was a conspiracy.

And you could probably say the same thing about obstruction, which is to say, if you succeeded in obstructing the investigation like, for example, if I paid the witness or if I paid a jerk off and the Jura would not vote to convict than the jury had to hang. That would be good evidence that I obstructed, because my my plan was successful, but you don't have to succeed in order to be guilty. You just have to endeavour- two corruptly influence the proceeded, so they can certainly open an investigation on the basis of some kind of reasonable suspicion that somebody is trying to impede and investing nation? But the problem that you have when you, especially when you're dealing with the president, is the president. Much like a prosecutor in this sense is allowed to take actions that affect the investigation.

and can do so, even if it negatively affect the investigation and still not have acted corruptly? The best example of this when I was a prosecutor would be, if I said in a case where the age, started you know they really had something. If I looked at it, nice said we don't have a case here, let shut down. I would have conclusively been interfering, in the investigation- and they might have intensely disagreed with me, but nobody would suggest that I was guilty of obstruction because I clearly wasn't acting correctly. I was acting within my functions as a prosecutor to evaluate the case now. The president has other responsibility including the ability to higher, while not not so much higher cosy needs. He needs the Senate for that, but the president, but everybody who is a in full

freer officer in the executive branch or a subordinate officer to the president, they the only person in the executive branch with power is the president. Everybody else in the executive branch is a delegate who exercises residents authority, you don't have your own authority and that's why the president can remove people at will sell all. The borders in the executive branch can be fired by the President and if the president fires somebody that's an illegitimate exercise of the president's article, two powers The fact that it may have an effect on an ongoing investigation is beside the point. Now, what the F b I wants to argue and what I think, the Justice Department and others one organ bitterly some of them is that, even if the president

is carrying out a lawful function like firing, firing a subordinate Sir firing the FBI director, even if its lawful, if they can infer that, he may have had an improper motive that might be enough to prosecute for obstruction of justice. I think they're wrong about that, and I think my cave was wrong about that, but I think that's the basis on which he opened the investigations have finally on this general topic, so we now the twenty fifth amendment was not involved in any more serious effort was undertaken. Besides the is this conversation, but we did get special council. So what We conclude about the appointment of mauler, given what, with additionally learned about the mindset of Rosen Stein and MC cave in this period,

Well, I've always thought rich that the appointment of the special council was improper. It was improper, even if you even if we put aside everything we just talked about, they simply didn't, have the products. The rules to appoint a special council. They didn't have a factual basis for a criminal investigation and they didn't have a conflict of interest that was so profound that the Justice Department couldn't handle this investigation, as it had been up until that point in the normal course. So I think that the appointment of a special council was improper. Now. What do we? What do we do about that? Even if I am, let's assume I'm right about that. The last reg nation in the sector. Regulations that covers special councils says that

Nothing in the regulations creates any actionable rights against actions taken by the Justice Department. That is nothing that the regular. No. No departure from the regulations is something Anybody can go into court and complain about or sue over, and what that means is the Justice Department basically takes these regulations as if they were suggestions rather than law and they figure they can do. I think right rod rose and sign figured. He could do whatever the hell we wanted to do, but because there was nothing anybody is a practical matter. It's going to be able to do about it, and if it is true that the Justice Department has vast discretion in terms of how they handle envy allegations whom they assign them too and how they cattle

rise them, whether they categorize them as as criminal investigations or national intelligence investigation, save a lot of discretion. This area so You know the fact is, whether you like it or not more of the special council and he's going to decide this

think anybody can do anything about that, but I do think in terms of how the public ultimately accepts the product that the report that Mahler ultimately comes out with all of this will factor into it, including whether you think the investigation was legitimately launched in the first place. Ok such pause, and very briefly, to the much anticipated at our plus plug here, if signed up for an hour plus get also benefits, including, most importantly, access to all of our content, including print magazine content and web exclusive content that may be running behind our metered pay wall. You also get an almost entirely ad free experience, certainly an ad free experience. When it comes to article pages they get to read our content without being destroyed.

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in DC on Wednesday March? Twenty seventh, if I'm not messing up the date, also, if you're in DC area watch your inbox for an invite, for that will just be hanging out with her analysts members and having some drinks and some beers and get to know all of you that are so. Please do not part of our plus yet check it out on and are dot com. You can see all the different pricing options, their cash. Basically, five. Six dollars a month to be part of our vibrant community here at an hour. So we hope you sign up so Andy. Another story that, as loom large this week, is the news that tromp was upset with the Sdn. Why, and was probably me private just for beneficial to see what could pass

really be done about it for our listeners, including myself, who have paid a lot of attention to this one could there's so much other stuff go on, get gives the basic background. First, Well, it's another very long peace. By the New York Times, which gives them an opportunity to rehash. have you sound jaded, like you said, like trumpet. The Friday press conference are going to lose and gonna lose then aware, another long any nearer. They are trying to run another long peace to be some things in a ride, something that a wrong ATLAS may any Bacardi I can't figure out what the truth is now if we could get to say that that less than a month but but you don't look bridge- I I guess, having followed this for a very long time.

Every now and then the times does a peace where they don't really advanced the ball, much up the field, but they rehash everything that they ve done up until that point, and I guess it becomes like a soap opera, you know if you'd it means that the if you haven't tuned in four while you don't just just watch your paper for the four out of the way We feed and I'll give you the whole script, and I think that's what they basically did again. This

week, they have been reporting comprehensively about trumps relations with the Justice Department for a very long time, and the peace that was added here was that apparently the president. According to the reporting popped off to Matt Whittaker, who was his acting attorney general until Bill BAR was confirmed last week, complaining about why? The? U S attorney, that he had appointed Jeff Berman to the southern district of New York, was not the person that one

is running the investigation that impacts trump there and there are, as we ve talked about. There are basically two investigations that we know of and the southern district of New York, that which is my old office that affect the press, one. Is the Kohen investigation to the extended involves the hush money payments to two women, which have been indicted against Callanan and he's plug guilty to them in the southern just district as campaign, fine hence, violations and the other investigation, their working on where no one's been charged to this point involves the Trump Inauguration

and and whether they were financial and other improprieties. In connection with that, so apparently Trump was grousing about the fact that Berman, who is the Eu S, attorney that he appointed is not running that investigation posies reduced himself from it and the question is whether Trump directed thee. Only general to tell the southern district that it Berman running the investigation, and I think, as I understand story, that Whittaker explain The president that Burma was were queues and even though president ranted and raved he didn't direct, would it could do anything? This is very much of a peace rich with the the same out on me to beat up on the times about this because it this is a legitimate story. The theme that they have

reported on for a very long time about trumps inclination toward the special council and whether he Do you know whether heat fire more? There were lots of stories about whether heat fire sessions. Now the story there are about whether he would replace the people who are running the investigation, the southern district with his own guy, that he appointed These stories are all very interesting, but unless the president actually does something, it's not really anything meaning for material if, if the time comes when he besides to move Rob whose army, who is the guy in the southern district of New Yorkers running the investigation? If the time comes where the president decides to You don't remove people in the sudden.

straight to a running, an investigation and substitute his own people, which, by the way, billboards said in his testimony that that would be a red line for him. He would not permit a situation. He wouldn't abide a situation where the White House tried to remove a prosecutor on a case because it might affect the president. So I think you don't until tromp, actually pull the trigger and does something like that. Every Do you wanna just take a deep breath, I must say, as somebody who was a prosecutor for a very long time having a President act, this radically having him comment on judicial cases and pending investigations, makes it much much harder for prosecutors to do their job. It makes it much worse for the president in terms of investigation

and he is implicated in unlike the mauler investigation, which could end up in impeachment, and that would be a political process. You can understand that the president might want to have a not saying I approve of this, but you can understand why the president might want to take a political approach to Malta's investigation. A political approach to the southern district investigations is not going to help the president. They are criminal investigations, anything he says, and does be evidence against him of criminal intent. I think you know something his lawyers must be imploring him not to do, but I think, at this point, rich two years in Trump is who he is I dont think the way he runs the Justice Department is, or the way the key coordinates relations between the White House in the Justice Department. Our credit to him, I think,

and being a big problem forum in the long run, but I don't think he's gonna change now. So on that aimed speaking, not changing you had this Friday. Press coverts again feels like an angel go, as things are often do in this new cycle. Where I I expected, you know a case to be made. for the emergency decoration instead, you had this rambling highly entertaining I just I can't I watching these things disquisition on everything under the sun and color. Oh by the way you know at the end of doing this year. I don't need to do that. I could go slower, but I want to go faster and I'm told who knows that lose lose you known and the lower accords, and then, when industry court probably gives us, I could run away

the actual and off hand- and probably you know self defeating case for further the declaration, but what he you make of it. And, and what do you see that the legal prospects being here? I think that does this time rich he's gonna go to the nine sir he's gonna lose oh by the way. I'm sure federal practitioners are thinking about thinking about Judge Lucchese. When I was listening to all this because he he's he's such a new, your person, and he so doesn't he so remote from the Justice Department and federal law enforcement federal practices. So he he goes into New York state Jargon So he says: we're gonna go into deny circuit and we're gonna go into that then we're getting onto the appellate division, which is did that's all you know, New York, state stuff, but keys. I think he's actually going to do

the Supreme Court he's probably gonna lose your life and well. I think if you go back to the nineteen seventy six emergency powers act. The way that that was originally written, the president wasn't given unchecked by unilateral power to declare a national emergency. He was granted the power with the proviso that Congress provided for itself a legislative veto, so that, if they didn't like the declaration they could. You could have a joint declaration by both houses Congress and it and if they agree to end the emergency, they could end the emergency. And what had

and was seven years later, in an unrelated case, the Supreme Court throughout the legislative veto as unconstitutional. So I think that the courts- and I don't think you have to be you- know a progressive anti trump judge to to. the conclusion that Congress did not intend for the president to her unilateral uncheckable authority and that if the law now is that the Congress can't keep a legislative veto to itself that the court can jump in to fill that role. That Congress intended somebody to play so I think that the court will not have to accept the court will. reason that it need not accept the press, and unilateral finding that there is an emergency and that the core, we'll make a rolling based on all the information that the that's presented by both parties about

whether there is an emergency or not, and one of the big things the court will consider, of course, is that in wearing the emergency. The president in his remarks said that there was no emergency right. Yes, so so the disapproval, though, that's not an effectively but the veto now because they have to submit it to the president has in any case before that there wasn't any veto attention, but I think in it yeah right, but I think rich right in it before Supreme Court throughout the right legislative veto, all they had to do was was do the joint pollution, and that was it. That was the end of the emergency now because got riddle legislative veto. They have two submitted as a piece of legislation to the president. He can veto at which means they have to override it by a two thirds majority which they they won't get probably, but I think in this instance rich, if you get

de the joint resolution, even though the president one sign it? A court may very well take into account the fact that the way than national emergency hours ACT was originally written. That would have been enough to Do the emergency so about the opposite argument. This is one that Stephen nor made in his interview with Chris was on fire. the Sunday were Stephen says: well, the presence acting pursuant to statutory authority in others, this legislation about clearing emergencies and the, process is being followed, his eyes, a Congress, the saying, oh, my gosh, you ve done something totally out of bounds. what Congress is doing is pursuing remedy under the very same law, so Congress as a perfect right to disapprove of this, and it has a veto, proof majority to stop it,

Why should the court's come in just because Congress fall short of a veto, proof majority with everyone acting under this law yeah? I think Stephen makes a very good point. I dont know that it it persuades me, but it's it's a very colorable argument, and it is that, if one when Congress throughout who I'm sorry when the court throughout the legislative Veto Congress was fully within its powers at that point to repeal the net national emergency act. You know the president's ability to declare national emergencies the pro the Congress could, I said you know look. We intended to give this power only with the understanding that, if we didn't agree there was an emergency, we could pull the plug on it now, you're saying we can't pull the plug on it. If that's the case

we're going to pull the plug on his power to declare it in the first place, and I think that actually would have been a good thing to do. But the point is they didn't, so they left it in the law that the president has this power and the president is exploiting the power, and I guess what it comes down to is: should the court say that, because Congress Congresses, legislative veto was removed, that the court should play that role, I think Stevens Point Is- is a good one. You could say that dead, since Congress could affixed us themselves and they didn't that the court should stay at hand, and the second thing is- and this is a this- is a problem that comes up in litigation in all kinds of policy matters rich. Who is the best. And where the component of government who were to be making the decision here, this is a net General security matter, it involves border security

may involve the moving of Pentagon or defence deportment funds by the commander in chief These are usually things where, in normal times, a court would say, or court should say that the president is the one who is politically and constitutionally responsible for national security and for these matters, judges have no institutional competence in them. Therefore, we're going to two deferred the judgment of the president and leave it to Congress to undo this. If it needs to be undone or will the court jump in and say we're just as smart as he is, we

decided on IRAN, and I think, in in in these times we unfortunately seen courts much more inclined to think that their institutionally competent and jumping in trying to decide these things said she more things honestly and then we have let you so. The his Prescott first way says I didn't need. Do this. So, in your view, this does just raises even starker way one of the issues, the travel ban right, which is that the critics of it were trying to leverage very statements, a trump made and even Rudy Giuliani, had made to show that the feed ban itself was ill bill intention and felt foul of of civil rights laws and eat your skeptical of that. projects, so would you still citys? This is even starker whether the government that they fish Bush and the government's there's emergency and they had parted

facing airs and then there's not really an urgency, so should the court's an hour now analogy analogous later what they did in the travel ban. Just say: ok, the government spoken what what Trump says unravelling press conferences and doesn't matter. I hears the difference. I think rich what happened, what they did in the travel ban cases was Trump made. A couple number of generalised statements about radical.

Is long and border security on the campaign trail, and then you know months later in it in most cases months after these statements were made became president and then his administration of rode up this executive order, which he signed and didn't say anything to undermine in this instance, were taught we're not talking about more showing a bunch of statements that

made about border security, we're talking about statements that he made about the proclamation of the emergency at the time that he was announcing the proclamation of the emergency. So I think he specifically speaking about the action he just took an explaining why he took it in real time. I think that's very different from what we're talking with a travel ban. And then finally, the the initial or the highest profile initial litigants here are states very states soon to block this. What standing with they cover possible injury? Would they have where they could a court would say their right and it's gonna block the president: can the presence trampling on congressional powers and a lawsuit brought by states, while I think rich that you're not simply be

those it's. What we're talking about the physical borders of the state, we're talking about spending of money that goes on in the state, is to me to be a lot less of a stretch to say that the states have standing than it did in the travel ban. Cases where state institutions had come up with these extravagant reasons for finding that they were affected by the actions the president took that that seemed only to effect the legally lions who those who the ban actually regulated. It seems to me that the states will have a much easier time of it. With this Well. That's all the time we have. You been listening to enact, reappeared gases pot, guess it produced by the incomparable, Sir shitty thanks everyone for listening and thank you, Annie, Mccarthy, thanks rich