WEBVTT - Buck Brief - Josh Hammer

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<v Speaker 1>You're listening to the Buck Sexton Show podcast, make sure

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<v Speaker 2>Hey, everybody, welcome to the Buck Brief. Our friend Josh

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<v Speaker 2>Hammer with us now. He is senior editor at Large

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<v Speaker 2>for Newsweek and host of the Josh Hammer Program. And

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<v Speaker 2>mister Josh, let's start with this, Uh, the situation of

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<v Speaker 2>law fair as it pertains to Trump. Bring us up

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<v Speaker 2>to where you think this stands with the various prosecutions.

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<v Speaker 2>Is any of this stuff gonna win? Because it feels

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<v Speaker 2>like they're hinging all their presidential hopes the Biden folks

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<v Speaker 2>on getting a guilty verdict somewhere against Trump.

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<v Speaker 1>So I think, guess and no, Buck, I mean part

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<v Speaker 1>of it is, I think they're just going to start

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<v Speaker 1>carpet bombing the airwaves with so many TV ads, so

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<v Speaker 1>many newspaper ads and internet ads. Is trying to fear

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<v Speaker 1>monger people into saying, oh, he's a criminal, and you

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<v Speaker 1>know they're gonna try to peddle that message basically before

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<v Speaker 1>he's even been convicted. So to an extent, I think

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<v Speaker 1>an actual conviction before November would just be the cherry

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<v Speaker 1>on top for them. I'm not sure that their whole

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<v Speaker 1>game plan necessarily depends upon that, but they obviously want

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<v Speaker 1>that conviction before November, you know. Unfortunately, like but the

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<v Speaker 1>way the criminal prosecution works, these things take a long time.

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<v Speaker 1>I mean, look what's happening in Georgia just this week,

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<v Speaker 1>where you have this ridiculous situation where Bonnie Willis, the

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<v Speaker 1>DA has nominated her kind of sort of you know,

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<v Speaker 1>illicit lover to be to be the special prosecutor. And now,

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<v Speaker 1>you know, just today it comes out that a judge

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<v Speaker 1>in Georgia is now ordering an investigation to this. So

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<v Speaker 1>quirks like this come up. Mean, not every criminal prosecution

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<v Speaker 1>has something where a prosecutor has tapped her illicit paramore

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<v Speaker 1>to be the special prosecutor. But over the course of

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<v Speaker 1>a prosecution, the point is that that things come up.

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<v Speaker 1>If I were Trump, I would still be concerned primarily

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<v Speaker 1>about Georgia and DC. Those to me have always been

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<v Speaker 1>by far of the two most dangerous. The situation in

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<v Speaker 1>New York with Alvin Bragg is a total nothing burger

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<v Speaker 1>of a case. The Florida thing is interesting, but ultimately

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<v Speaker 1>I think he's going to be okay there on appeal

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<v Speaker 1>at the latest, George is very dangerous. You have a

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<v Speaker 1>very dangerous jury pool there, you have a sweeping Rico statute,

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<v Speaker 1>and you know, we have to see what happens with

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<v Speaker 1>his claim of absolute immunity for presidential acts. When it

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<v Speaker 1>comes to what's happening in DC right now, we're waiting

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<v Speaker 1>to hear from this three judge DC panel as retains

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<v Speaker 1>to the Trump lawyers very aggressive assertion of full presidential immunity.

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<v Speaker 1>I don't think that's gonna fly there, but it would

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<v Speaker 1>go a very, very very long way for Trump if

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<v Speaker 1>that somehow passes muster.

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<v Speaker 2>And there's a lot of attention that's been paid in

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<v Speaker 2>the in the anti Trump media to arguments made by

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<v Speaker 2>some Trump lawyers recently about essentially total immunity. I don't

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<v Speaker 2>know what you extreme immunity, whatever you'd call it that

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<v Speaker 2>a president has. What was the point of making that

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<v Speaker 2>argument and what do you think of it?

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<v Speaker 1>So it has been totally pillory to this argument. But

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<v Speaker 1>I'll be honest with you, I do not think it's

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<v Speaker 1>a crazy argument. I really don't. I mean, it might

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<v Speaker 1>kind of viscerally right people as being illogical, But if

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<v Speaker 1>I'm a constitutional lawyer, and I'm looking at the constitutional

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<v Speaker 1>text about if I'm thinking of a constitutional structure, I

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<v Speaker 1>actually think it makes a lot of sense. So what

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<v Speaker 1>they are claiming what John Sower and the rest of

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<v Speaker 1>Trump's legal team in d C is claiming, and this

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<v Speaker 1>claim is now before a three judge panel in the

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<v Speaker 1>US corpeals with DC Circuit. But they're claiming that the

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<v Speaker 1>former president has absolute immunity unless he has first been impeached.

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<v Speaker 1>And what that means, and they did tease this outterall

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<v Speaker 1>argument is, you know, what if you commit a literal

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<v Speaker 1>criminal app what if you hire an assassin to murder someone?

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<v Speaker 1>And I get that it rubs a lot of people

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<v Speaker 1>the wrong way to say that, oh, you cannot be

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<v Speaker 1>prosecuted for that. But think about constitutional textbook. Article two,

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<v Speaker 1>Section one, Clause one of US Constitution vest quote the

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<v Speaker 1>executive power in the President of the United States. The

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<v Speaker 1>executive power is not vested in the vice president, is

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<v Speaker 1>not invested in a cabinet official, it is not vested

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<v Speaker 1>in a dog catcher. Is literally vested in one person.

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<v Speaker 1>And what that means is that that person has the plenary,

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<v Speaker 1>sole and complete authority to dictate the federal law enforcement apparatus.

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<v Speaker 1>Now people will say, well, what happens then if the

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<v Speaker 1>president does something crazy, Well, the Constitution's framers thought of that.

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<v Speaker 1>They have a remedy for it built in. It's called impeachments.

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<v Speaker 1>So it's literally right there. And sure enough, when it

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<v Speaker 1>comes to January sixth, which is basically what the trying

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<v Speaker 1>to prosecute him for in Jacksmith's DC trial, when it

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<v Speaker 1>comes to January sixth, Buck, they tried that. They literally

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<v Speaker 1>tried to impeach him for January six It kind of

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<v Speaker 1>went into Biden's term. He was ultimately let off, I

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<v Speaker 1>think correctly so, but from a legal perspective, from my perspective,

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<v Speaker 1>I think that that remedy then therefore has been exhausted.

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<v Speaker 2>Josh, I'm going to have you tell everybody at home

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<v Speaker 2>about the Chevron deference doctrine and why the Supreme Court

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<v Speaker 2>is looking at this and how this matters. You're ready

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<v Speaker 2>for this, because this is we're we're about to well,

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<v Speaker 2>we're gonna let Josh nerd out. We're going to enjoy

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<v Speaker 2>his nerding out here. And that's going to come up

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<v Speaker 2>in just a second, because it matters a lot. It

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<v Speaker 2>matters if you think the administrative state and the weaponization

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<v Speaker 2>of the government is something to be concerned about. Then

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<v Speaker 2>you should absolutely care about the outcome of the Supreme

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<v Speaker 2>Court case on Chevron deference. But you know, there's finally

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<v Speaker 2>about credit costs and terms. All right, Chevron deference hammer

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<v Speaker 2>the lawyer hammer it.

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<v Speaker 1>All right. So definitely not the sexiest topic in the world, buck,

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<v Speaker 1>but it's a very important topic, especially for people who

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<v Speaker 1>are opposed to a tyrannical administrative state, as I think

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<v Speaker 1>that all conservatives properly should be. So Chevron Deference goes

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<v Speaker 1>back to a nineteen eighty four Supreme Court case, as

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<v Speaker 1>the name implies, called Chevron, and what they basically said is,

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<v Speaker 1>you know, the modern administrative state is a fairly modern phenomenon, right,

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<v Speaker 1>it's really kind of post Woodrow Wilson. So Woodrow Wilson

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<v Speaker 1>was president in nineteen teen, so Chevron comes out about

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<v Speaker 1>seventy years later, in nineteen eighty four. What they basically

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<v Speaker 1>said is that when you have been administrative agency that

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<v Speaker 1>issues a regulation, if the regulation is deemed reasonable. That's

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<v Speaker 1>the word. If the regulation is reasonable, it doesn't have

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<v Speaker 1>to be correct. It doesn't have to be an authentic

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<v Speaker 1>application of a congressionally passed law of a statute. Only

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<v Speaker 1>if the agency's interpretation of the actual congressional law. If

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<v Speaker 1>it's quote reasonable, then the judges can't do anything. Then

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<v Speaker 1>Article three, the federal judiciary has no claim whatsoever. The

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<v Speaker 1>effective or the effect of this buck is that the

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<v Speaker 1>administry of State's power is massively engorged. Congress in turn,

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<v Speaker 1>becomes very lazy because they start just delegating lots of

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<v Speaker 1>rulemaking and law making to the Ministry of State because

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<v Speaker 1>they have this massive leeway and discretion to just interpret

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<v Speaker 1>the laws in any way that might be subjectively deemed reasonable.

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<v Speaker 1>And most importantly from my perspective, from kind of a

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<v Speaker 1>structural separation of powers perspective, the federal judiciary is dramatically weakened.

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<v Speaker 1>So go back to like, you know, go back to

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<v Speaker 1>constitutional law one on one buck. Go back to mar

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<v Speaker 1>Bray versus Mattice in the case from eighteen oh three

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<v Speaker 1>from Chief Justice John Marshall. John Marshall says that it

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<v Speaker 1>is the province of the judiciary to say what the

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<v Speaker 1>law is, period, full stop, end of story. Chevron deference

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<v Speaker 1>by getting judges out of the picture, by saying that

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<v Speaker 1>if the law is reasonable, then judges cannot opine what does.

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<v Speaker 1>Let the administrators say what they will. That is a

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<v Speaker 1>total middle finger. I think to Marl Barry's mass and

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<v Speaker 1>it is an inversion of the separation of powers. And

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<v Speaker 1>I think it should be overruled.

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<v Speaker 2>You think it will be.

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<v Speaker 1>I think the votes probably are there for it. It's

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<v Speaker 1>hard to say. So. You know, we have a six

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<v Speaker 1>to three nominal court when it comes to Republican nominees

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<v Speaker 1>versus Democrat nominees. Obviously, John Roberts is not even remotely reliable,

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<v Speaker 1>although he did the right thing in the affirmative action case.

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<v Speaker 1>He's been slightly more reliable in some higher profile cases

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<v Speaker 1>the past two terms than I thought he would be.

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<v Speaker 1>So if I were a betting man, I would say

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<v Speaker 1>the votes are probably there. But you know, there was

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<v Speaker 1>a case a few terms ago. I mean not to

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<v Speaker 1>like doubly nerd out here, but there's another form of

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<v Speaker 1>administrative law deference called our deference. The administrative lawyers don't

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<v Speaker 1>hate it as much as Chevron defference. The court a

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<v Speaker 1>few terms ago actually couldn't even overturn our deference. But

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<v Speaker 1>that was before the additions of amy Cony Barrett to

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<v Speaker 1>the court and so forth. So the composition. Now, if

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<v Speaker 1>I were a betting man, I think they probably have

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<v Speaker 1>the votes for this. This is a fairly unifying issue

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<v Speaker 1>when it comes to all the various subcomponents of the

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<v Speaker 1>broader conservative legal movements, the moderates, the Conservatives, the libertarians.

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<v Speaker 1>They basically all agree the Chevron deference is bad. So

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<v Speaker 1>I think it probably will be overruled. But I wouldn't

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<v Speaker 1>want to bet the ranch on it either.

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<v Speaker 2>All right, we're gonna come back Hammer and also dive

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<v Speaker 2>into any predictions you care to make about how things

0:09:52.257 --> 0:09:54.697
<v Speaker 2>are gonna go in twenty twenty four. We're gonna make

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<v Speaker 2>Hammer the prognosticator. But you know there's something out there

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<v Speaker 2>I'm wanting your twenty twenty four big swing predictions here.

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<v Speaker 2>Biden is the nominee, not the nominee. Trump wins, Trump blueses, YadA, YadA.

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<v Speaker 2>You tell me.

0:11:08.337 --> 0:11:10.577
<v Speaker 1>Look, I think that binds nominee. I'm pretty sure that

0:11:10.577 --> 0:11:12.857
<v Speaker 1>you and I agree on this. We have some friends

0:11:13.017 --> 0:11:15.457
<v Speaker 1>that are very much opposed to this, who say, oh,

0:11:15.497 --> 0:11:18.097
<v Speaker 1>they're gonna swap out Biden at the convention they're gonna

0:11:18.177 --> 0:11:20.217
<v Speaker 1>I mean, let's think through the logistics as the first

0:11:20.217 --> 0:11:22.977
<v Speaker 1>of all, the actual filing dates in the primary states

0:11:23.017 --> 0:11:26.657
<v Speaker 1>at this point have almost unanimously passed. So you basically

0:11:26.657 --> 0:11:29.297
<v Speaker 1>can swap Biden out in one of two ways. One is,

0:11:29.337 --> 0:11:33.217
<v Speaker 1>you can somehow orchestrate a grassroots, bloody floor fight on

0:11:33.217 --> 0:11:36.177
<v Speaker 1>the floor of the Democratic National Convention. I have no

0:11:36.257 --> 0:11:39.337
<v Speaker 1>idea how you possibly could whip the actual votes for

0:11:39.377 --> 0:11:42.217
<v Speaker 1>that to happen. Other than that, you can probably try

0:11:42.257 --> 0:11:44.897
<v Speaker 1>to pull a Jeffrey Epstein. I mean, you know, make

0:11:44.977 --> 0:11:47.097
<v Speaker 1>Joe Biden fall down a flight of stairs in a

0:11:47.097 --> 0:11:49.577
<v Speaker 1>way that could end quite poorly for him in August

0:11:49.577 --> 0:11:51.817
<v Speaker 1>septemb Brock. I mean, look, I don't put that past

0:11:51.817 --> 0:11:54.097
<v Speaker 1>the Democrats. Bock. I mean, you know, still I still

0:11:54.137 --> 0:11:56.497
<v Speaker 1>have a lot of questions, of course, as to where

0:11:56.537 --> 0:11:58.937
<v Speaker 1>all the bodies are buried in Clinton World and things

0:11:58.977 --> 0:12:00.737
<v Speaker 1>like that. But if I were a betting man, I

0:12:00.737 --> 0:12:02.817
<v Speaker 1>don't see it happening. I think Joe Biden is nominate

0:12:02.857 --> 0:12:04.537
<v Speaker 1>at this point. I mean, who are they going to

0:12:04.617 --> 0:12:07.137
<v Speaker 1>replace him with? I mean, the obvious answer will be

0:12:07.177 --> 0:12:10.017
<v Speaker 1>the Vice president, Kamala Harris, but she's obviously totally unpopped.

0:12:10.337 --> 0:12:12.257
<v Speaker 1>And then if you try to skip over her to

0:12:12.297 --> 0:12:15.617
<v Speaker 1>go with a white man, Gavin Newsome. You know, Democrats

0:12:15.617 --> 0:12:18.617
<v Speaker 1>are risking a lot of black voters fleeing on the margins,

0:12:18.697 --> 0:12:21.497
<v Speaker 1>not in total, but on the margins to Trump as

0:12:21.497 --> 0:12:23.497
<v Speaker 1>well this year. So they're not gonna do that to

0:12:23.537 --> 0:12:25.417
<v Speaker 1>Kambala Harris. So I just don't see it happening. I

0:12:25.417 --> 0:12:28.257
<v Speaker 1>think that Joe Biden is a nominee, and given that,

0:12:28.377 --> 0:12:31.897
<v Speaker 1>you know, no matter what my misgivings have been about

0:12:32.057 --> 0:12:34.657
<v Speaker 1>the potential risks of nominating Trump when it comes to

0:12:34.657 --> 0:12:36.937
<v Speaker 1>these endorsement or when it comes to these prosecutions, no

0:12:36.977 --> 0:12:39.977
<v Speaker 1>matter how illegitimate they are, no matter what those misgivings are,

0:12:40.377 --> 0:12:43.817
<v Speaker 1>Biden is so so weak that Trump obviously has a

0:12:43.977 --> 0:12:46.417
<v Speaker 1>very strong chance of winning. I would probably say he's

0:12:46.457 --> 0:12:48.577
<v Speaker 1>probably a slight favorite to this point of anything.

0:12:49.457 --> 0:12:52.137
<v Speaker 2>Now, Josh, what gives you optimism these days? You know,

0:12:52.137 --> 0:12:54.417
<v Speaker 2>I feel like a lot of people are very concerned

0:12:54.457 --> 0:12:57.857
<v Speaker 2>about the future, and there's a lot of catastrophism out there.

0:12:58.137 --> 0:13:00.017
<v Speaker 2>Where do you think things are moving the right direction?

0:13:02.537 --> 0:13:06.857
<v Speaker 1>It's a great question. I'm struggling to think of it

0:13:06.937 --> 0:13:08.657
<v Speaker 1>because I tend to be somewhat of a doom and

0:13:08.697 --> 0:13:09.257
<v Speaker 1>Gloom guy.

0:13:09.417 --> 0:13:11.857
<v Speaker 2>Yeah, you're like, you're not a Sunshine and Rainbow's political

0:13:11.857 --> 0:13:14.337
<v Speaker 2>analysis Skyle. Just to be fair about that, So I

0:13:14.377 --> 0:13:14.697
<v Speaker 2>get it.

0:13:15.057 --> 0:13:19.817
<v Speaker 1>No, I'm definitely not right. Look, I think when you

0:13:19.897 --> 0:13:23.017
<v Speaker 1>look at some of these so called cultural issues buck

0:13:23.057 --> 0:13:26.297
<v Speaker 1>that are facing this country, the right genuinely seems to

0:13:26.337 --> 0:13:27.737
<v Speaker 1>be winning on some of them. I mean, we are

0:13:27.777 --> 0:13:31.857
<v Speaker 1>currently I think winning, albeit very slowly, the fight against DEI,

0:13:31.937 --> 0:13:35.737
<v Speaker 1>against critical race theory, against ESG in particular, ESG is

0:13:35.777 --> 0:13:37.817
<v Speaker 1>a total winning issue for the right. Right now. We

0:13:37.857 --> 0:13:41.017
<v Speaker 1>are getting black Rock Vanguard to run away from ESG

0:13:41.097 --> 0:13:43.657
<v Speaker 1>and many of these major mutual funds or many these

0:13:43.937 --> 0:13:46.817
<v Speaker 1>many these major pension funds, i should say, across across

0:13:46.817 --> 0:13:48.857
<v Speaker 1>the state. So there are certain issues where if you

0:13:48.897 --> 0:13:51.177
<v Speaker 1>look closely enough, we actually really do seem to be winning.

0:13:51.257 --> 0:13:54.937
<v Speaker 1>On the transgender issue. I also feel constantly optimistic about

0:13:54.937 --> 0:13:58.057
<v Speaker 1>winning on that one. And you know, look the abortion issue.

0:13:58.097 --> 0:14:00.177
<v Speaker 1>The right has been losing in a lot of states

0:14:00.337 --> 0:14:02.777
<v Speaker 1>on that issue, no doubt about that. And I think

0:14:02.777 --> 0:14:04.777
<v Speaker 1>the pro life movement has a lot of soul surging

0:14:04.817 --> 0:14:06.577
<v Speaker 1>to do. I've written about this at great length over

0:14:06.577 --> 0:14:09.697
<v Speaker 1>the past year. But but you know, let's take solace

0:14:09.737 --> 0:14:11.297
<v Speaker 1>in the fact that we're still voting on this, that

0:14:11.297 --> 0:14:14.257
<v Speaker 1>it's still a political question after fifty years where Roe

0:14:14.337 --> 0:14:15.737
<v Speaker 1>versus Wade was the law of the land. So there

0:14:15.737 --> 0:14:18.297
<v Speaker 1>were definitely some science for optimism even in our political world.

0:14:18.297 --> 0:14:20.377
<v Speaker 1>And also to go back to the Supreme Court, Buck,

0:14:20.737 --> 0:14:23.217
<v Speaker 1>you know, the Supreme Court is one institution that is

0:14:23.257 --> 0:14:25.457
<v Speaker 1>controlled by the right now. It is not a far

0:14:25.537 --> 0:14:27.497
<v Speaker 1>right court. It is not a right wing court. It

0:14:27.537 --> 0:14:30.257
<v Speaker 1>is a six ' to three nominal Republican nominated majority

0:14:30.297 --> 0:14:33.137
<v Speaker 1>where John Roberts barely counts. So you know, it is

0:14:33.177 --> 0:14:36.217
<v Speaker 1>not a scary right court as the New York Times

0:14:36.217 --> 0:14:38.577
<v Speaker 1>and Adam Liptak and the bloggers like that would have

0:14:38.697 --> 0:14:42.377
<v Speaker 1>you believe. But it is very clearly controlled by the riot.

0:14:42.457 --> 0:14:44.497
<v Speaker 1>They have come up big in most of the big

0:14:44.537 --> 0:14:46.817
<v Speaker 1>cases over the past two terms. And as long as

0:14:46.817 --> 0:14:48.617
<v Speaker 1>the right continues to hold the court, you know, that

0:14:48.737 --> 0:14:51.977
<v Speaker 1>is a very very valuable bulwark in our separation of powers.

0:14:52.337 --> 0:14:55.017
<v Speaker 2>Josh Hammer, everybody check out the Josh Hammer Show. Josh,

0:14:55.017 --> 0:14:57.377
<v Speaker 2>thanks for being here anytime.

0:14:57.377 --> 0:14:57.577
<v Speaker 1>Buck