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Speaker 2: Hey, everybody, welcome to the Buck Brief. Our friend Josh
Speaker 2: Hammer with us now. He is senior editor at Large
Speaker 2: for Newsweek and host of the Josh Hammer Program. And
Speaker 2: mister Josh, let's start with this, Uh, the situation of
Speaker 2: law fair as it pertains to Trump. Bring us up
Speaker 2: to where you think this stands with the various prosecutions.
Speaker 2: Is any of this stuff gonna win? Because it feels
Speaker 2: like they're hinging all their presidential hopes the Biden folks
Speaker 2: on getting a guilty verdict somewhere against Trump.
Speaker 1: So I think, guess and no, Buck, I mean part
Speaker 1: of it is, I think they're just going to start
Speaker 1: carpet bombing the airwaves with so many TV ads, so
Speaker 1: many newspaper ads and internet ads. Is trying to fear
Speaker 1: monger people into saying, oh, he's a criminal, and you
Speaker 1: know they're gonna try to peddle that message basically before
Speaker 1: he's even been convicted. So to an extent, I think
Speaker 1: an actual conviction before November would just be the cherry
Speaker 1: on top for them. I'm not sure that their whole
Speaker 1: game plan necessarily depends upon that, but they obviously want
Speaker 1: that conviction before November, you know. Unfortunately, like but the
Speaker 1: way the criminal prosecution works, these things take a long time.
Speaker 1: I mean, look what's happening in Georgia just this week,
Speaker 1: where you have this ridiculous situation where Bonnie Willis, the
Speaker 1: DA has nominated her kind of sort of you know,
Speaker 1: illicit lover to be to be the special prosecutor. And now,
Speaker 1: you know, just today it comes out that a judge
Speaker 1: in Georgia is now ordering an investigation to this. So
Speaker 1: quirks like this come up. Mean, not every criminal prosecution
Speaker 1: has something where a prosecutor has tapped her illicit paramore
Speaker 1: to be the special prosecutor. But over the course of
Speaker 1: a prosecution, the point is that that things come up.
Speaker 1: If I were Trump, I would still be concerned primarily
Speaker 1: about Georgia and DC. Those to me have always been
Speaker 1: by far of the two most dangerous. The situation in
Speaker 1: New York with Alvin Bragg is a total nothing burger
Speaker 1: of a case. The Florida thing is interesting, but ultimately
Speaker 1: I think he's going to be okay there on appeal
Speaker 1: at the latest, George is very dangerous. You have a
Speaker 1: very dangerous jury pool there, you have a sweeping Rico statute,
Speaker 1: and you know, we have to see what happens with
Speaker 1: his claim of absolute immunity for presidential acts. When it
Speaker 1: comes to what's happening in DC right now, we're waiting
Speaker 1: to hear from this three judge DC panel as retains
Speaker 1: to the Trump lawyers very aggressive assertion of full presidential immunity.
Speaker 1: I don't think that's gonna fly there, but it would
Speaker 1: go a very, very very long way for Trump if
Speaker 1: that somehow passes muster.
Speaker 2: And there's a lot of attention that's been paid in
Speaker 2: the in the anti Trump media to arguments made by
Speaker 2: some Trump lawyers recently about essentially total immunity. I don't
Speaker 2: know what you extreme immunity, whatever you'd call it that
Speaker 2: a president has. What was the point of making that
Speaker 2: argument and what do you think of it?
Speaker 1: So it has been totally pillory to this argument. But
Speaker 1: I'll be honest with you, I do not think it's
Speaker 1: a crazy argument. I really don't. I mean, it might
Speaker 1: kind of viscerally right people as being illogical, But if
Speaker 1: I'm a constitutional lawyer, and I'm looking at the constitutional
Speaker 1: text about if I'm thinking of a constitutional structure, I
Speaker 1: actually think it makes a lot of sense. So what
Speaker 1: they are claiming what John Sower and the rest of
Speaker 1: Trump's legal team in d C is claiming, and this
Speaker 1: claim is now before a three judge panel in the
Speaker 1: US corpeals with DC Circuit. But they're claiming that the
Speaker 1: former president has absolute immunity unless he has first been impeached.
Speaker 1: And what that means, and they did tease this outterall
Speaker 1: argument is, you know, what if you commit a literal
Speaker 1: criminal app what if you hire an assassin to murder someone?
Speaker 1: And I get that it rubs a lot of people
Speaker 1: the wrong way to say that, oh, you cannot be
Speaker 1: prosecuted for that. But think about constitutional textbook. Article two,
Speaker 1: Section one, Clause one of US Constitution vest quote the
Speaker 1: executive power in the President of the United States. The
Speaker 1: executive power is not vested in the vice president, is
Speaker 1: not invested in a cabinet official, it is not vested
Speaker 1: in a dog catcher. Is literally vested in one person.
Speaker 1: And what that means is that that person has the plenary,
Speaker 1: sole and complete authority to dictate the federal law enforcement apparatus.
Speaker 1: Now people will say, well, what happens then if the
Speaker 1: president does something crazy, Well, the Constitution's framers thought of that.
Speaker 1: They have a remedy for it built in. It's called impeachments.
Speaker 1: So it's literally right there. And sure enough, when it
Speaker 1: comes to January sixth, which is basically what the trying
Speaker 1: to prosecute him for in Jacksmith's DC trial, when it
Speaker 1: comes to January sixth, Buck, they tried that. They literally
Speaker 1: tried to impeach him for January six It kind of
Speaker 1: went into Biden's term. He was ultimately let off, I
Speaker 1: think correctly so, but from a legal perspective, from my perspective,
Speaker 1: I think that that remedy then therefore has been exhausted.
Speaker 2: Josh, I'm going to have you tell everybody at home
Speaker 2: about the Chevron deference doctrine and why the Supreme Court
Speaker 2: is looking at this and how this matters. You're ready
Speaker 2: for this, because this is we're we're about to well,
Speaker 2: we're gonna let Josh nerd out. We're going to enjoy
Speaker 2: his nerding out here. And that's going to come up
Speaker 2: in just a second, because it matters a lot. It
Speaker 2: matters if you think the administrative state and the weaponization
Speaker 2: of the government is something to be concerned about. Then
Speaker 2: you should absolutely care about the outcome of the Supreme
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Speaker 2: about credit costs and terms. All right, Chevron deference hammer
Speaker 2: the lawyer hammer it.
Speaker 1: All right. So definitely not the sexiest topic in the world, buck,
Speaker 1: but it's a very important topic, especially for people who
Speaker 1: are opposed to a tyrannical administrative state, as I think
Speaker 1: that all conservatives properly should be. So Chevron Deference goes
Speaker 1: back to a nineteen eighty four Supreme Court case, as
Speaker 1: the name implies, called Chevron, and what they basically said is,
Speaker 1: you know, the modern administrative state is a fairly modern phenomenon, right,
Speaker 1: it's really kind of post Woodrow Wilson. So Woodrow Wilson
Speaker 1: was president in nineteen teen, so Chevron comes out about
Speaker 1: seventy years later, in nineteen eighty four. What they basically
Speaker 1: said is that when you have been administrative agency that
Speaker 1: issues a regulation, if the regulation is deemed reasonable. That's
Speaker 1: the word. If the regulation is reasonable, it doesn't have
Speaker 1: to be correct. It doesn't have to be an authentic
Speaker 1: application of a congressionally passed law of a statute. Only
Speaker 1: if the agency's interpretation of the actual congressional law. If
Speaker 1: it's quote reasonable, then the judges can't do anything. Then
Speaker 1: Article three, the federal judiciary has no claim whatsoever. The
Speaker 1: effective or the effect of this buck is that the
Speaker 1: administry of State's power is massively engorged. Congress in turn,
Speaker 1: becomes very lazy because they start just delegating lots of
Speaker 1: rulemaking and law making to the Ministry of State because
Speaker 1: they have this massive leeway and discretion to just interpret
Speaker 1: the laws in any way that might be subjectively deemed reasonable.
Speaker 1: And most importantly from my perspective, from kind of a
Speaker 1: structural separation of powers perspective, the federal judiciary is dramatically weakened.
Speaker 1: So go back to like, you know, go back to
Speaker 1: constitutional law one on one buck. Go back to mar
Speaker 1: Bray versus Mattice in the case from eighteen oh three
Speaker 1: from Chief Justice John Marshall. John Marshall says that it
Speaker 1: is the province of the judiciary to say what the
Speaker 1: law is, period, full stop, end of story. Chevron deference
Speaker 1: by getting judges out of the picture, by saying that
Speaker 1: if the law is reasonable, then judges cannot opine what does.
Speaker 1: Let the administrators say what they will. That is a
Speaker 1: total middle finger. I think to Marl Barry's mass and
Speaker 1: it is an inversion of the separation of powers. And
Speaker 1: I think it should be overruled.
Speaker 2: You think it will be.
Speaker 1: I think the votes probably are there for it. It's
Speaker 1: hard to say. So. You know, we have a six
Speaker 1: to three nominal court when it comes to Republican nominees
Speaker 1: versus Democrat nominees. Obviously, John Roberts is not even remotely reliable,
Speaker 1: although he did the right thing in the affirmative action case.
Speaker 1: He's been slightly more reliable in some higher profile cases
Speaker 1: the past two terms than I thought he would be.
Speaker 1: So if I were a betting man, I would say
Speaker 1: the votes are probably there. But you know, there was
Speaker 1: a case a few terms ago. I mean not to
Speaker 1: like doubly nerd out here, but there's another form of
Speaker 1: administrative law deference called our deference. The administrative lawyers don't
Speaker 1: hate it as much as Chevron defference. The court a
Speaker 1: few terms ago actually couldn't even overturn our deference. But
Speaker 1: that was before the additions of amy Cony Barrett to
Speaker 1: the court and so forth. So the composition. Now, if
Speaker 1: I were a betting man, I think they probably have
Speaker 1: the votes for this. This is a fairly unifying issue
Speaker 1: when it comes to all the various subcomponents of the
Speaker 1: broader conservative legal movements, the moderates, the Conservatives, the libertarians.
Speaker 1: They basically all agree the Chevron deference is bad. So
Speaker 1: I think it probably will be overruled. But I wouldn't
Speaker 1: want to bet the ranch on it either.
Speaker 2: All right, we're gonna come back Hammer and also dive
Speaker 2: into any predictions you care to make about how things
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Speaker 2: your family, and your livelihood. Josh, anything that comes to mind.
Speaker 2: I'm wanting your twenty twenty four big swing predictions here.
Speaker 2: Biden is the nominee, not the nominee. Trump wins, Trump blueses, YadA, YadA.
Speaker 2: You tell me.
Speaker 1: Look, I think that binds nominee. I'm pretty sure that
Speaker 1: you and I agree on this. We have some friends
Speaker 1: that are very much opposed to this, who say, oh,
Speaker 1: they're gonna swap out Biden at the convention they're gonna
Speaker 1: I mean, let's think through the logistics as the first
Speaker 1: of all, the actual filing dates in the primary states
Speaker 1: at this point have almost unanimously passed. So you basically
Speaker 1: can swap Biden out in one of two ways. One is,
Speaker 1: you can somehow orchestrate a grassroots, bloody floor fight on
Speaker 1: the floor of the Democratic National Convention. I have no
Speaker 1: idea how you possibly could whip the actual votes for
Speaker 1: that to happen. Other than that, you can probably try
Speaker 1: to pull a Jeffrey Epstein. I mean, you know, make
Speaker 1: Joe Biden fall down a flight of stairs in a
Speaker 1: way that could end quite poorly for him in August
Speaker 1: septemb Brock. I mean, look, I don't put that past
Speaker 1: the Democrats. Bock. I mean, you know, still I still
Speaker 1: have a lot of questions, of course, as to where
Speaker 1: all the bodies are buried in Clinton World and things
Speaker 1: like that. But if I were a betting man, I
Speaker 1: don't see it happening. I think Joe Biden is nominate
Speaker 1: at this point. I mean, who are they going to
Speaker 1: replace him with? I mean, the obvious answer will be
Speaker 1: the Vice president, Kamala Harris, but she's obviously totally unpopped.
Speaker 1: And then if you try to skip over her to
Speaker 1: go with a white man, Gavin Newsome. You know, Democrats
Speaker 1: are risking a lot of black voters fleeing on the margins,
Speaker 1: not in total, but on the margins to Trump as
Speaker 1: well this year. So they're not gonna do that to
Speaker 1: Kambala Harris. So I just don't see it happening. I
Speaker 1: think that Joe Biden is a nominee, and given that,
Speaker 1: you know, no matter what my misgivings have been about
Speaker 1: the potential risks of nominating Trump when it comes to
Speaker 1: these endorsement or when it comes to these prosecutions, no
Speaker 1: matter how illegitimate they are, no matter what those misgivings are,
Speaker 1: Biden is so so weak that Trump obviously has a
Speaker 1: very strong chance of winning. I would probably say he's
Speaker 1: probably a slight favorite to this point of anything.
Speaker 2: Now, Josh, what gives you optimism these days? You know,
Speaker 2: I feel like a lot of people are very concerned
Speaker 2: about the future, and there's a lot of catastrophism out there.
Speaker 2: Where do you think things are moving the right direction?
Speaker 1: It's a great question. I'm struggling to think of it
Speaker 1: because I tend to be somewhat of a doom and
Speaker 1: Gloom guy.
Speaker 2: Yeah, you're like, you're not a Sunshine and Rainbow's political
Speaker 2: analysis Skyle. Just to be fair about that, So I
Speaker 2: get it.
Speaker 1: No, I'm definitely not right. Look, I think when you
Speaker 1: look at some of these so called cultural issues buck
Speaker 1: that are facing this country, the right genuinely seems to
Speaker 1: be winning on some of them. I mean, we are
Speaker 1: currently I think winning, albeit very slowly, the fight against DEI,
Speaker 1: against critical race theory, against ESG in particular, ESG is
Speaker 1: a total winning issue for the right. Right now. We
Speaker 1: are getting black Rock Vanguard to run away from ESG
Speaker 1: and many of these major mutual funds or many these
Speaker 1: many these major pension funds, i should say, across across
Speaker 1: the state. So there are certain issues where if you
Speaker 1: look closely enough, we actually really do seem to be winning.
Speaker 1: On the transgender issue. I also feel constantly optimistic about
Speaker 1: winning on that one. And you know, look the abortion issue.
Speaker 1: The right has been losing in a lot of states
Speaker 1: on that issue, no doubt about that. And I think
Speaker 1: the pro life movement has a lot of soul surging
Speaker 1: to do. I've written about this at great length over
Speaker 1: the past year. But but you know, let's take solace
Speaker 1: in the fact that we're still voting on this, that
Speaker 1: it's still a political question after fifty years where Roe
Speaker 1: versus Wade was the law of the land. So there
Speaker 1: were definitely some science for optimism even in our political world.
Speaker 1: And also to go back to the Supreme Court, Buck,
Speaker 1: you know, the Supreme Court is one institution that is
Speaker 1: controlled by the right now. It is not a far
Speaker 1: right court. It is not a right wing court. It
Speaker 1: is a six ' to three nominal Republican nominated majority
Speaker 1: where John Roberts barely counts. So you know, it is
Speaker 1: not a scary right court as the New York Times
Speaker 1: and Adam Liptak and the bloggers like that would have
Speaker 1: you believe. But it is very clearly controlled by the riot.
Speaker 1: They have come up big in most of the big
Speaker 1: cases over the past two terms. And as long as
Speaker 1: the right continues to hold the court, you know, that
Speaker 1: is a very very valuable bulwark in our separation of powers.
Speaker 2: Josh Hammer, everybody check out the Josh Hammer Show. Josh,
Speaker 2: thanks for being here anytime.
Speaker 1: Buck