Constitutional law scholar Michael McConnell on the checks and balances between Congress and the president

This is a rush transcript from "Life, Liberty & Levin," June 23, 2019. This copy may not be in its final form and may be updated.

MARK LEVIN, HOST: Hello America, I'm Mark Levin, this is "Life, Liberty & Levin." We have a great guest, Professor Michael McConnell. How are you today?

MICHAEL MCCONNELL, PROFESSOR AND DIRECTOR, CONSTITUTIONAL LAW CENTER, STANFORD LAW SCHOOL: Great.

LEVIN: One of the foremost constitutional scholars in the country, at least that's my opinion.

MCCONNELL: You're very kind.

LEVIN: You're among others. Well, you -- Professor and Director of the Constitutional Law Center at Stanford Law School, senior fellow at the Hoover Institution. You've argued 15 cases in front of the Supreme Court. That's not shabby.

You are widely regarded as a preeminent constitutional scholar on the free exercise and establishment clauses. You served as a Federal Appellate Judge on the Tenth Circuit from 2002 to 2009. You're published broadly. Your bona fides are really quite significantly which is why I wanted to have you here.

And there's a number of topics that I want to touch on during the course of this hour. We're not going to get to everything I'd like to talk, but we'll get to some of them.

The first one is impeachment. We hear impeachment being discussed left and right in this country, in the media by politicians.

Here's the impeachment clause in the Constitution and here's what it says. "The President, Vice-President and all civil officers of the United States shall be removed from office on impeachment for and conviction of treason, bribery or other high crimes and misdemeanors."

Now here it is said in the popular culture that that pretty much means that it's a political decision that if the House of Representatives has the votes then that's pretty much good enough. Is that how it works?

MCCONNELL: I don't think so, Mark, so the phrase high crimes and misdemeanors was specifically chosen to be a very high bar and the reason for that is that our framers wanted the President to be independent of Congress.

One of the main functions of the President was to be a check, one of the checks and balances against Congress, which they thought, you know perhaps inaccurately was going to be by far the most powerful and most dangerous branch of government.

So they did not want Congress to be able to toss the President out on the basis of any low standard at all and they deliberately chose the phrase "high crimes and misdemeanors" which had a history in the common law because it referred to misdeeds of a public nature of a very serious sort amounting to abuse of power.

And I just wanted to mention, you read the Impeachment Clause to us, but you didn't mention the fact that when the Congress, when the Senators are judging an impeachment, they are actually on oath, which tells us that this is not just a political vote. That they are engaged in a serious legal matter in which they are actually swearing to do justice at the time.

And this was -- and with the Chief Justice of the United States there to preside and make sure that the entire affair is being done as a court of law and not just as a matter of law politics.

LEVIN: So if it is pursued as a matter of law politics, would it be your point then that that's not what the Constitution provides for.

MCCONNELL: That's right.

LEVIN: That in fact, it's an illegitimate use of the impeachment power.

MCCONNELL: That's right. That isn't to say that it can be overturned because the Senate is the sole judge of impeachments. There's no higher court to which it can be appealed, but the Senators are on oath to comply with the Constitution.

LEVIN: And these words, as you point out, they have meaning, the common law. They debated it fairly extensively at the Constitutional Convention and there were things they dismissed, right?

I mean in order to make sure the bar was relatively high, this word maladministration, it was proposed and what did Madison say about that?

MCCONNELL: So George Mason proposed that the President be impeachable for maladministration and Madison objected to that saying that that would effectively make him serve at the pleasure of the Senate, meaning that they could get rid of him whenever they wanted to and that would destroy his independence.

It's pretty clear that Madison at least believed that the President needed to be insulated from impeachment for anything that isn't really truly high crime or misdemeanor.

LEVIN: Now, related to this, at least President day, we have a slew of subpoenas being issued by a slew of committees in the House of Representatives. Once one party lost the House, the opposition party took the house.

And these subpoenas cover among other things the President's taxes, the President's bank records, the President's communications with his accountant, the President's financial records, members of his family, his businesses, his associates and so forth.

These subpoenas -- is this something new?

MCCONNELL: Actually it is. To hear much of the discussion, you would think that these inquiries go back to the beginning, but they don't. There's actually nothing in the Constitution that gives Congress the power to issue subpoenas at all.

They do have the right to ask, to request of the President information regarding the State of the Union, which you know Presidents back to George Washington have complied with, but only after first declining to provide information where they thought that it would be contrary to the public interest to provide it.

So that's in the Constitution, but subpoenas and investigatory powers are not there. Charles Pinckney at the Constitutional Convention proposed that Congress be given the power to punish individuals for a violation of privilege which essentially meant a contempt of Congress. But that was voted down by the Constitutional Convention.

Now it is true that very close to the beginning I think 1827, may have been the first year that this happened. Congress has subpoenaed private individuals to come and provide information when it is necessary for the legislative duties of Congress, fairly narrowly understood. This did not extend to Executive Branch officials until relatively recent times.

I believe the first time that Congress ever attempted to enforce a subpoena against the Executive Branch where the President had invoked executive privilege was under Richard Nixon. First time an Executive Branch official was actually held in contempt of Congress in connection with a subpoena where the President had invoked executive privilege was 1982, Ann Burford Gorsuch, coincidentally, the mother of Supreme Court Justice Neil Gorsuch.

It's only happened a few times. It's never been approved by the Supreme Court. This is really a matter of political dispute between the two branches.

LEVIN: So half a dozen committees literally hundreds of subpoenas now. Allegations that if the President doesn't comply with these subpoenas, he is obstructing Congress and they are even arguing obstructing justice.

The President is taking them to court to litigate this issue. How can it be obstruction if he is litigating the issue on separation of powers grounds, and also on whether or not the House of Representatives has the original authority to demand these kinds of records from a President or for that matter from any citizen given the point you just raised, that is there needs to be some legislative purpose.

MCCONNELL: Well, I think we have to understand that words like obstruction are thrown around -- they are political rhetoric rather than serious legal arguments and the only way the House of Representatives or its committees can actually enforce these subpoenas is by going to court.

This has only been done three times in American history. It's never gotten past a district court decision. It's not entirely clear that the courts even have jurisdiction, but this is what the House will need to do if it wants to enforce these subpoenas.

But those are civil cases asking for a declaratory judgment or an injunction requiring the Executive Branch to provide the particular materials. If such a case is broad and if the courts told that the Executive Branch needs to provide the materials, I'm pretty confident they will be provided.

LEVIN: What kind of precedent does is set for future Congresses and future Presidents?

MCCONNELL: Well it seems to me that the House Democrats are being very short-sighted. Do they think that when they do this against President Trump that future Republican Congresses will not do it against future Democratic Presidents?

It's very hard for me to believe that they think that this is the proper way to do business.

LEVIN: Now in terms of oversight activities which you've mentioned, subpoenas which we've talked about, legislative purpose. What would the legislative purpose be exactly to have the President's tax returns?

MCCONNELL: Well, I think it differs. I think there have been something like 81 subpoenas. Some of them I think are much more closely related to legislative purpose than others. The claim about the President's personal tax returns is that they need to investigate whether the Internal Revenue Service is properly auditing the President.

Not clear to me why that requires looking at his tax returns from before he was even President. That's an unusual case so that one particular subpoena is -- I think it's the only one that's pursuant to a specific statute that has been passed by Congress authorizing a subpoena and that statute does not limit the inquiry to legislative purpose.

It seems on its face to allow the chair of the Ways and Means Committee to demand the tax return of not just the President, but of anyone, Mark.

If they want to see your -- if the Chair of the Ways and Means Committee he wants to see your tax returns, according to the current chair, he can do it. That's what the statute seems to say. This is I think, I bit of a civil liberties disaster.

It's never been done in this way. Of course, they're using it just against Trump, but the statute is not confined to the President. It's any taxpayer, and I think it's exceedingly unlikely that the Court is going to order this when the Congress has no apparent legislative need for it.

LEVIN: The Department of Justice said you don't get the tax returns. We had an opinion from the Office of Legal Counsel last week, they said because the statute doesn't trump the Constitution, you don't have a legislative purpose, you're focused on one individual, one president, to your point they're going back to tax returns before he was President of the United States and they say we have scores and scores of examples of your real purpose, which is to make them public.

And the Department of Justice says, that is not a legislative purpose. So that's where this litigation is headed right now.

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LEVIN: Professor Michael McConnell, the Tenth Amendment of the Constitution, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States are reserved to the States respectively or to the people." Is that true today?

MCCONNELL: It's nominally true, but all -- what really matters is how broadly we interpret the granted powers to the Federal government and when those words were written, the assumption was that those powers would be interpreted fairly strictly. Today they are interpreted very generously so the amendment amounts to very little.

LEVIN: An amendment amounts to very little and that's the result of what? Judicial decisions?

MCCONNELL: It's a result of decisions by the representatives of the people in Congress passing expansive laws that are then upheld by the Supreme Court.

But let's not blame the court. These are laws passed by Congress.

LEVIN: Although the court in part is to blame, right? I mean, the court gets to look at the Bill of Rights every bit as Congress gets to look at the Bill of Rights.

So basically to my way of thinking is the very Federal government that does not benefit from the Tenth Amendment is the Federal government whether it's the Legislative Branch, the Executive Branch or the Judicial Branch that interprets it in a way that is very destructive of federalism.

I mean you have bureaucrats deep in the bowels, let's say the Environmental Protection Agency, they have more power than the Governor than the legislature of a particular state in some cases. Is that a post constitutional type of a problem?

MCCONNELL: Well, let me just say, people left and right do not believe in federalism when push comes to shove, so you know certainly, you know the New Deal the progressives paid no attention to federalism.

But frankly conservatives don't care very much about federalism either.

LEVIN: Give us some example.

MCCONNELL: So I mean take immigration and whether the sanctuary cities, a question here you have, you know, left liberals who are rediscovering the virtues of federalism, but the other side of the coin is that conservatives are forgetting them.

Or take --

LEVIN: Let's hold it right here. Yet immigration in the Constitution is largely a federal activity, right? I mean there are federal activities.

MCCONNELL: We could have a whole hour discussion of this. The Constitution only gives Congress power over naturalization. Immigration was actually left to the states for the first hundred years.

LEVIN: Should it be left to the states now?

MCCONNELL: I think not. It seems to me perfectly reasonable to interpret powers over commerce and naturalization to include immigration and I think that it is something that logically should be dealt with at a national level.

But I don't think that that means that the national government is the only unit that has any authority to legislate.

LEVIN: Well do we have a Constitution or don't we have a Constitution? How do you interpret the Constitution? I know we have precedent, we have - - you make the point and say, hey, look it seems like the ends justify the means for various political ends of our spectrum here.

You know, federalism gets you where you want to go, you support federalism. If the national government acts and it gets you where you want to go, I would dispute that somewhat at least, I think at least constitutional originalists are a little bit more clear about what they believe regardless of the outcome and I think the left is which is why they're activists in so many regards.

But what do we have?

MCCONNELL: So you know, let's not exaggerate. We do still have a Constitution. The skeleton of this government, the bare bones of the government are you know, elected Congress, there's elected Presidents, limited powers, division of power between the national government and the state's due process of law, independent courts.

We stick remarkably to the Constitution. It is true that there are a number of provisions of the Constitution where I think and perhaps you think, the courts have strayed and Congress have strayed, but that doesn't mean everywhere.

LEVIN: Where's the new deal in the Constitution?

MCCONNELL: The New Deal is simply you know, President Roosevelt's description of this program. He was elected President by an overwhelming majority.

LEVIN: But we had a number of Supreme Court decisions that really had to turn the Constitution on set. I'm not saying good or bad, whether it's Social Security or -- and a number of other decisions that were made throughout that period of time.

The fact is, it's not in the Constitution, is it? But there's an adjustment that's made over the course of time, correct?

MCCONNELL: Well, the word commerce is in the Constitution and --

LEVIN: But we know what that meant. It didn't mean an explosive bureaucracy, it meant Commerce.

MCCONNELL: This is true, but as we've become a more integrated national economy, I think it is only logical that the ability to regulate that national economy has grown in scope, but we can argue about any individual provision.

I do think that for -- that there was a period of time in our history when the courts paid much less attention to what the Constitution said than they should have and we have a lot of precedents that were set in those periods.

I also believe that in the last 20 or 30 years, we've begun moving back toward a court that is more attentive to the Constitution and I don't just mean the conservative justices, I think even the liberal justices on the Supreme Court are much more attentive to texts and to history and to actual legal justifications for what they do than their predecessors 50 or 60 years ago.

LEVIN: Why do you think that is?

MCCONNELL: I mean, I think that there has been a big debate nationally among lawyers in law schools to some extent, you know, even out in the political campaigns over the nature of the judiciary and I think that debate has been won on the merits by those who say that if we are going to be a constitutional republic that means we need to pay attention to the Constitution and not just to treat it as whatever the Supreme Court wants it to mean.

LEVIN: All right, we'll be right back.

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LEVIN: Professor McConnell, the progressive movement, it's not all that concerned about the Constitution. When you read Woodrow Wilson, when you read John Dewey, when you read -- and all these other fellas that the at the end of the 1800s early into the 1900s and they viewed the courts in particular as their change agent.

And they were dismissive of the Declaration, they were dismissive of the Constitution. In fact, they wrote about it, this whole idea of living and breathing Constitution comes from Wilson. He talks about as you know, you can have separations like this and this federalism stuff it's all quaint it's all interesting, but now we're an industrial power, you know, a superpower and the different body parts have to work together like a living organism.

They don't seem to be all that worked up about the Constitution in terms of complying with it.

MCCONNELL: Look, the progressives were openly contemptuous of the Constitution. Woodrow Wilson was a critic of the Constitution. We do not hear that very much today.

Modern-day progressives are not the same as Woodrow Wilson progressives now. You know, for some ways better for worse, but I think that the respect for the Constitution as a text that needs to be authoritative is alive and well among modern progressives and in some ways Donald Trump has made it ever so much more so because when there's a President that they dislike and distrust, where do they go you know for their protection?

They immediately go scurrying to the Constitution and I don't mean scurrying in an insulting way, they should. We all should scurry to the Constitution for protection when our government is going awry.

So I actually think that on the left that there is more interest in the actual content of the text and history of the Constitution than there has been at any other time in my professional life.

LEVIN: Well how about the attack on the Electoral College? That seems to be rather aggressive and I don't think there's a candidate on the left who hasn't said we ought to get rid of the Electoral College.

That kind of goes to the heart of our Republican system which is if you're going to have a national popular vote, which they specifically rejected a national popular vote, that kind of changed the entire makeup of the government, doesn't it?

MCCONNELL: Well, it's a very important feature, but our Constitution would survive a constitutional amendment to move toward a popular vote.

What I don't -- I don't hear the left saying we should ignore the Electoral College. What I hear is a sort of interesting workaround that they're proposing for a compact among the states constituting a majority Electoral College would promise in advance to cast their electoral votes in accordance with the winner of the of the national vote.

But that is not to ignore the Electoral College, that's to work around it.

LEVIN: I'm not saying they're lawless and that they want to -- I don't even know how you would ignore the Electoral College as a practical matter, but couldn't the argument be made -- let me try this on you -- couldn't the argument be made? Well they pretty much have knocked down most of the obstacles that were problematic.

I mean, as you said earlier there's really no dispute anymore of the New Deal. There's really no dispute on immigration. There is a political dispute, but where the power is, there's really no dispute about most of these things anymore, so it's just a matter of exploiting them.

MCCONNELL: Well, we have disputes over different things at different eras. We have plenty of important constitutional disputes. Today, it is true that when something has been thoroughly hashed out and the American people seem satisfied by the resolution that tends to be regarded as settled.

LEVIN: I think they've done a hell of a good job in many respects at turning the Constitution inside out and it scares me because I hear these arguments now about wealth taxes. I hear these arguments now about all kinds of proposals that I'm sure the framers of the Constitution would have found absolutely appalling and yet I find very little argument in the public debate, in the media about -- wait a minute -- is that constitutional? Or wait a minute -- is there an obstacle to that?

There are political arguments. There are economic arguments, but I'm not finding a lot of constitutional arguments.

MCCONNELL: Well, I think this is true. I mean, on the other hand I think that among our political classes we don't really see very many serious arguments at all. It all seems to be posturing.

I don't mean all, but I think there's much more posturing than there is substance whether it's constitutional argument or otherwise.

One place you haven't mentioned, but I know from your book you care about where I think that there's a very dangerous lack of regard for the Constitution is actually freedom of speech where a dangerously large minorities of young people are now saying that they do not believe in freedom of speech for people with whom they seriously disagree, that they believe that various egalitarian ideology is trump of our freedom of speech and especially on campus.

I think that that is one of the more frightening things that's going on today and it's interesting because this is happening at a time when the courts are as protective of freedom of speech as they have ever been, maybe even more than they ever have been and so there's a huge disjunct between the protection for freedom of speech that's to be found in the courts versus the lack of regard for the value of freedom of speech that's found on college campuses and a lot of other places in America.

LEVIN: Yes, it's actually quite frightening. How is freedom of the press doing in your eyes?

MCCONNELL: I think as a legal matter, freedom of the press is extremely strong. I think the press as an institution is in very bad shape. I think it has economic problems with the advent of the internet, but I also think that the political --

Anytime an institution becomes heavily overwhelmingly of one political side or the other, if it ceases to do its job properly. I'm in academia, I mean certainly universities are this way and they are -- they suffer from this, but the press is as well and when universities or the press is overwhelmingly of one political ideology, they forget that their job is actually truth-telling and begin to think that their job is, I don't know, resistance or whatever the catchphrase is of the day.

What we really need is a press that fearlessly goes after the truth whether it's left or right and not -- it doesn't see itself as having a mission of supporting one particular side of the argument.

LEVIN: We'll be right back.

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LEVIN: Professor McConnell, First Amendment says a lot of things the First Amendment. "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof or abridging the freedom of speech or of the press or the right of the people peaceably to assemble and to petition the government for a redress of grievances."

I want to focus on the establishment of religion which is kind of the sister to free exercise of religion. Separation of church and state, we hear this phrase all the time. Is it in the Constitution? Where does that come from?

MCCONNELL: Well the word separation of church and state are not in the Constitution. I think this is a shorthand version of what the Establishment Clause means. It does have a deep history because there were -- in the 18th Century prominent writers who had openly advocated for a union between church and state.

There's actually a famous essay by one of the bishops in the Church of England by that very title and our framers did not believe in a union between church and state. They wanted them separate.

The main thing to understand about the Church of England and the established church is that this was the government's control over religion and what our founders were most opposed to was having the government to be able to control religion.

This did not mean that the framers believed that the American people should be any less religious than they choose to be. It didn't mean that the culture -- there was anything wrong with having religious elements in the culture, what it meant is that we would not have a system in which the government chose was able to tell us what to believe, was able to control churches, decide what their doctrines were, who their personnel would be and so forth.

So for example, we had a recent case in the U.S. Supreme Court, a unanimous decision in a case called Hosanna-Tabor in which the civil rights laws, the employment discrimination laws were used to tell a religious organization that they couldn't fire a particular person who was in a position of a Minister.

And the Supreme Court held, I think quite correctly that it is an establishment of religion for the government to decide who is going to be a Minister in a church, and of course church here means not just Christian churches, but it means synagogues, it means mosque, this means temples. It means any religious organization. The government simply asked to keep out of the business of telling them what to believe who their leadership are going to be and essentially what they're going to do.

LEVIN: What about school prayer and manger scenes? We see these battles going on, you know my father used to say to me, "We're Jewish." You know I used to go to school and we would pledge allegiance and we would say a Christian prayer and it didn't bother me in the least. Nobody told me that I had to become Christian, I had to change my faith or anything of the sort.

You know for a long part of our history that was the case, so it's unconstitutional or not? And when did this happen?

MCCONNELL: So I think that the school prayer decisions are in fact correct. It is true that there was school prayer and the public schools, you know, going way back, not to the founding by the way because at the founding, we didn't have public schools.

Public schools as we now know them are really a phenomenon of the 1830s and thereafter, and from the beginning, prayers and Bible readings in the public schools were controversial all along.

I mean just as an example, in Philadelphia in the 1830s, the school board decided voluntarily to allow Catholic students to read the Bible from their own translation rather than the King James translation and when that happened, the Protestants of Philadelphia rioted and it was kind of an anti-Catholic riot, a very ugly thing set off by this problem.

And the Supreme Court didn't address this issue until the 1960s, but I think it's quite a reasonable interpretation of the Establishment Clause to say that the government should not take upon itself the duty of teaching our children what prayers to say and how to say them.

And from a religious point of view, I think this is quite important because from -- if the government is going to do this, it's not going to do a very good job. I mean, what is it that the government does a good job of and the prayer that was written in Engel against Vitale, the case in the Supreme Court was written by a committee.

And when I teach this case, I like to tell my students that the prayer -- I read them the prayer and it's like "To whom it may concern," it's completely bland and contentless prayer.

And you know for our government to be taking a serious thing like a prayer and making it into this bland thing, it doesn't do anybody any good.

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LEVIN: So Professor McConnell, what of this religious issue -- separation of church and state and the points about -- what about federalism? What about the opportunity for local school districts and states to make their own decision because there is rub there, right?

MCCONNELL: Well, mark this has been a very big issue. At the beginning, there is no doubt that the First Amendment including freedom of religion applied as a matter of federal constitutional law only to the United States government.

In fact, they voted down Madison's proposal to extend religious freedom protections against state governments as well even though he said that that was the most important amendment of all the proposals for the Bill of Rights. They voted it down though on federalism grounds similar to those that you've just been talking about.

In the years before the Civil War, it turned out that states were using their authority to violate virtually every one of those important principles in the service of slavery, so the abolitionists who wanted to make speeches against slavery were denied freedom of speech.

Newspapers that advocated for abolition could not be circulated. Ministers who wanted to deliver sermons contrary to slavery were prevented from taking the pulpit.

Every single important Bill of Right was violated in order to prop up this essentially totalitarian system of slavery, so when the Civil War comes and we have a 14th Amendment, the 14th Amendment does nationalize issues of fundamental human rights that had been left to the states by the initial --

LEVIN: And it was ratified by the states.

MCCONNELL: And it was ratified and there are lots of disputes about how this is done. I personally I think that the most persuasive interpretation is that it was the Privileges or Immunities Clause of the 14th Amendment that does that.

The Privilege and Immunities Clause says that states -- no State shall make or enforce any law which infringes -- which denies to any person the privileges and immunities of citizens of the United States.

Now there's lots of historical dispute, but there were plenty of people at the time including the senator who introduced the amendment on the floor of the Senate who said well what are these privileges and immunities and proceeded to read from the Bill of Rights.

So I think they're solid historical support as well as sort of -- that the logic makes so much sense after the Civil War that they were not going to allow the states to be able to do things that had propped up slavery in this way and I think that that's what the 14th amendment legitimately means.

LEVIN: We'll be right back.

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LEVIN: What was the Everson decision?

MCCONNELL: So Everson was one of the first Supreme Court decisions to hold that, in this case, the Establishment Clause applies against the states and Everson was about the question in the particular township, there were only two schools. There was a public school and there was a Catholic school.

The legislature and the school board voted to treat all the kids exactly the same way. They all got free transportation to school and a number of people, including a lot of anti-Catholic people, argued that this violated the separation of church and state because Catholic schools could not receive aid of any sort even on a neutral basis.

Now, they lost -- the opponents lost five-four in a very strangely worded opinion, later this principle was adopted with a vengeance holding that -- I mean, for example, in a case that I was involved in, in the Supreme Court, one of my defeats in the Supreme Court, the Court held five to four, underprivileged kids economically and educationally deprived kids could not even receive special tutoring in remedial Math and English from public school teachers on the premises of their catholic schools.

Apparently, out of the worry that somehow these public school teachers would be influenced by, I don't know, the crucifixes on the wall or what was it that would influence them to inculcate religion as part of remedial Math.

I'm happy to say that case was formally overruled about 20 years later and now the Supreme Court takes a position that as long as the government is providing equal benefits to everyone, publics, private school, religious school, you know whatever it happens to be, Jewish school, Catholic school, if everybody is being treated neutrally, it does not violate the Establishment Clause. That seems to me to be a correct principle.

LEVIN: It's been fascinating, Professor. I really appreciate it. Law students at Stanford are lucky. Lucky to have you there.

MCCONNELL: Thank you.

LEVIN: Don't forget, folks to join us next time on "Life, Liberty & Levin."

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