This is a rush transcript from "Life, Liberty & Levin," May 12, 2019. This copy may not be in its final form and may be updated.
MARK LEVIN, HOST: Hello, America, welcome to "Life, Liberty & Levin." We have a great constitutional scholar tonight. John Eastman, how are you?
JOHN C. EASTMAN, AMERICAN LAW PROFESSOR, CHAPMAN UNIVERSITY: I'm well, Mark.
LEVIN: Dr. John Eastman. You are the professor of law at Chapman University.
EASTMAN: I am.
LEVIN: I've known you a very long time. You're a brilliant. You've litigated up and down the Federal chain on a whole bunch of constitutional issues here. So I wanted to talk to about several of them.
We had come earlier this week, 375 or 400 -- whatever -- former Federal prosecutors write a letter. It's a contrivance. They've put together a letter, they manufactured a new story saying that if they had been prosecutors still and the President was President, they would have charged him with obstruction.
This is very odd, I think because if Trump wasn't President this wouldn't be an issue at all to begin with, right?
LEVIN: Secondly, people think that's a lot of formal Federal prosecutors. There's about 350 Federal prosecutors in the Southern District of New York alone. You're talking about former Federal prosecutors, there must be thousands and thousands of them.
EASTMAN: Tens of thousands of them.
LEVIN: Tens of thousands of them. So they put this letter together and everybody is very excited about it and I read this letter, there's not a whit of information or substance in this letter that makes a difference.
Robert Mueller puts together this report and here we are focused on Volume 2 because what Volume 1 does, the President's enemy is no good. There's no collusion. There's no collaboration. There's no conspiracy. That should've been the end of it.
Robert Mueller puts together this 400 and some odd page report. Was he required by regulations to put together a 400 and some page report?
EASTMAN: No. In fact what they do require is that he report to the Attorney General on his conclusion on whether there is an indictable offense or not and the evidence supporting an indictable offense or the reasons why he did -- decided not bring or seek an indictments. That's it. That's all the regulations require.
And in fact, the normal Justice Department practice is to not let anything beyond their go out because the Justice Department speaks against individuals by way of its indicting documents not by leaks to the press, not by innuendo and reports that don't lead to indictments because people's reputations are at stake as well.
LEVIN: So we have a very important process in place. It was given thought, it's a regulation that was adopted and honored by Democrats and Republicans in and out of the Justice Department. There is some measure of due process and this is important so innocent people aren't accused of crimes without being charged and having an opportunity to defend themselves.
So this report is really a bunch of crap, isn't it?
EASTMAN: Well, it is. And you know, even the bottom line refusal to draw a conclusion gets the presumption of innocence wrong. He said, "I couldn't find enough evidence to exonerate President Trump from the obstruction of justice allegations." That's not his job as a prosecutor.
The only job is to decide if there's enough evidence to bring about an indictment with a likelihood of conviction beyond a reasonable doubt. We presume innocence unless we can presume otherwise. His report presumes guilt unless Trump can prove otherwise, and it is a fundamental altering of our very basic conceptions of justice.
LEVIN: Now, let's play along. Let's dig into this obstruction of justice. The media is very excited about this by the way. All of their legal scholars who are nothing of the sort, I have an opinion in front of me -- 2005, by the United States Supreme Court. This it he key opinion when it comes to obstruction.
It's Arthur Andersen petitioner versus United States. At the District Court level, Arthur Andersen lost, at the Circuit Court level, the Fifth Circuit, they lost. What did they lose? They recused of obstruction, of destroying documents, spying among others. Andrew Weissmann, the deputy to Mr. Mueller and he led this effort.
Arthur Andersen went broke, 80,000 people lost their jobs and the Supreme Court reversed the law of courts in a nine to zero opinion. What is this? Six or seven or eight pages long? It's almost perfunctory.
And what they say in here is, wait a minute, guys, you can't just accuse someone of obstruction because you don't like what they said or even that they tried to impede. There are elements to this crime and they are not so easy approve. Knowingly dishonest and a corrupt intent.
LEVIN: The President of the United States says to his White House counsel, if in fact this is true, the President denies it. He says to his White House counsel, "Look, I want you to get hold of the Justice Department. I want us to get rid of Mueller because he is conflicted."
LEVIN: "And he has got a whole bunch of people who are conflicted." Now, how is that obstruction of justice if the President is saying -- not be because he wants to kill an investigation; clearly, everything else he did demonstrates he doesn't want to kill an investigation. "Here's my notes. Here's my staff. Here's my lawyer. No attorney-client privilege. No executive privilege. Talk to whomever you want."
But this guy, he is conflicted. So let's say he did fire that guy. How is that obstruction of justice?
EASTMAN: Well, it's not obstruction under the statute, but one of the things everybody is forgetting as well is the basic separation of powers.
The Special Prosecutor, the Department of Justice itself, the Attorney General have no powers under our Constitution that aren't derived from the President. The notion that the President can't determine the course of an investigation is the most basic violation of separation of state.
We have a unitary executive. The entire Executive Branch is headed by one guy and the only constitutional check on that is through an impeachment power, not through statutes and not through regulations internal to the Department of Justice because the President has the authority to change those whenever he wants.
The notion that the President can be charged therefore for directing the conduct of the Executive Branch, which is -- he is the only guy elected to run that branch really misunderstands the Constitution from a very basic level.
LEVIN: I have never understood, to be honest with you, whether it was Watergate or before, this idea that you could have an Independent Counsel or Special Counsel independent of the Executive Branch investigating the head of the Executive Branch, it has never made sense to me, but apparently, you and I are in the minority.
Let's go on with this though. Did the President cover up anything?
LEVIN: Did the President impede anything?
LEVIN: Did the President obstruct anything?
EASTMAN: He did not try to alter witness testimony like President Clinton did during his scandal. None of that occurred here.
LEVIN: And yet, these prosecutors sounds just like Jerry Nadler and the other Democrats on the House Judiciary Committee who are driven by an obsession to take out this President, but he wanted to and he tried to.
Let me ask you this, you're President of the United States. If you want to fire Robert Mueller, pick up your phone, you call Robert Mueller and you say, "You're fired."
LEVIN: President Trump has done that a thousand times before he became President of the United States. He knows how to tell somebody, "You're fired." So he wasn't obstructing anything, was he?
EASTMAN: No, and even if he -- I mean, directing McGahn to fire him is no different than him picking up the phone himself and even that would not have been obstruction as you pointed out.
The likely result of that would have been somebody else placed to conduct the investigation who was free of any potential or actual conflicts of interest.
And on a high profile investigation like that, even if there's not actual conflicts, you want Caesar's wife to be pure. You want them not even to be the appearance of conflict of interest, and what we've seen is the media, the e-mail exchanges between people on Mueller's team who were bent on getting this particular President, no matter what, that just stinks of an appearance of conflict of interest, if not an actual conflict of interest.
And what we're looking for here is -- it was an investigation, if there was going to be one at all and I don't there should've been, we will get to that in a minute, that is above reproach so that the country can come back around on what's become a real political divide and quite frankly, threatening our ability to govern ourselves.
LEVIN: Are prosecutors judges?
LEVIN: Are they jurors?
LEVIN: Are the advocates?
EASTMAN: Well, they are advocates, yes.
LEVIN: Okay, they are advocates. So when a prosecutor puts out a report, why is it assumed that everything in the report is accurate or everything in the report is the end-all and be-all, is the final word?
EASTMAN: Well, this goes back to the conflict thing and why having somebody do this who was free of conflicts was absolutely essential and what we didn't get in the Mueller report because if people have a partisan political bias that comes out and -- you know, there have been wonderful digests of -- dissecting of the report to show how biased and skewed certain evidence was and how it was portrayed. It's almost like it was set up to create a media frenzy rather than giving an honest neutral assessment of what went on here.
LEVIN: The reason he didn't subpoena the President among many is because of this.
LEVIN: The United States Supreme Court decision.
EASTMAN: Unanimous, by Chief Justice Rehnquist, but this is 2005. The court was highly divided partisan ideologically, and to get a nine zero decision on something as high profile as the Arthur Anderse and the Enron case just demonstrates how clear cut the law is and how the prosecutors abused the law in order to try and bring the prosecution --
LEVIN: So the Attorney General is aware of this case.
LEVIN: The Office of Legal Counsel, the constitutional office -- they are aware of this case. The Deputy Attorney General is aware of this case, the career prosecutors - senior career prosecutors who worked their way up the Civil Service, not Mueller appointees who contributed to Obama and Hillary and what was that? The Hillary Clinton victory party, they look at this, they know the law, they know the Supreme Court decision. They know there's no obstruction case here and yet Mr. Mueller writes this.
Now, here is the thing. As you point out, Mr. Mueller was supposed to write this report for the Attorney General. Nobody would write a report like this to their boss.
LEVIN: So this was written for Congress. He knew the Democrats took the House. He knew that Barr said he would release most of this report this is what has instigated and triggered all this tumult, isn't it, in the media? In these 400 former prosecutors? Prosecutors -- are prosecutors perfect?
LEVIN: What happened in the Ted Stevens case? Senator Stevens of Alaska?
EASTMAN: You had a bunch of prosecutors that bring a false charge against him. They hide exonerating evidence that would have immediately ended the case in a heartbeat, but they play this out during the course of his reelection campaign to the extent that it cost him his reelection.
And then after the fact they are caught with the exonerating evidence and many of them are removed from office, but by then it's too late. The damage had been done and that's what they wanted to accomplish.
LEVIN: So when you interviewed the President's White House counsel for 30 hours, and you have two paragraphs in a report about what he said, somehow that makes me very, very suspicious. What happened to the other 29 hours and 59 minutes?
EASTMAN: Well, it was all exonerating evidence. It was perfectly reasonable stuff and even the two hours that they included in the summary was distorted in order to try to make it appear that something nefarious had gone on when that went down with nothing.
But let's back up one step because this whole Special Prosecutor should have never been appointed in the first place.
LEVIN: I want to get to that. This is very, very important. The entire exercise was fundamentally illegal, wasn't it?
EASTMAN: Well it was. There's a very specific Justice Department guideline. We recognize that on occasion, prosecutors will be so conflicted because the target of the criminal investigation is their boss or their ultimate boss, the President of the United States, and so there is very specific Justice Department policy, when that's the case, when there is credible evidence of a crime having been committed by somebody at the top of the food chain over here, we are going to appoint a prosecutor to give some arms' length from the chain of command.
LEVIN: And what was crime that was alleged that was violated here?
EASTMAN: Well, there wasn't one.
LEVIN: There wasn't one.
EASTMAN: And what we had was an intelligence gathering operation which was not a criminal investigation at all. So on two fronts, it was intelligence gathering where there are no limits because you're trying to defend our national security and therefore, not a crime. And nobody in the administration itself accused with any evidence of a crime.
So those two components which are essential criteria for the appointment of a Special Prosecutor did not exist and they knew it didn't exist.
LEVIN: They knew it didn't exist, they appointed the Special Prosecutor under the regulations anyway.
LEVIN: A report is produced that really violates the regulations, too, because it is intended to go to the Attorney General, it is intended to be confidential. They know he is going to make it public, so they write a different kind of report.
Two regulations really are violated. The appointment of the Special Counsel, the conduct of the Special Counsel with respect to his report.
Folks, don't forget you can join us on LevinTV almost every week night. Go to blazetv.com/mark to sign up, blazetv.com/mark or give us a call 844 LEVIN-TV, 844-LEVIN-TV. We'd love to have you. We'll be right back.
LEVIN: Dr. John Eastman, you're a constitutional expert. This is really a rejection by the Democratic Party and the media and the rest of them, rejection of the 2016 election, isn't it?
EASTMAN: I think so. They still can't believe that they lost that election and they're trying to rationalize that there must've been something nefarious in order to produce it, but let's put it in historical context.
I think we've confronted a situation like this three times in our nation's history -- 1800, first time there was a change of power, one party to another, Jefferson defeated Adams, it took him a while but Adams finally handed the baton over peaceably.
LEVIN: But that was brutal and there were multiple votes in the House of Representatives and finally, Hamilton throws his support to Jefferson who he cannot stand, but he can't stand John Adams even more.
EASTMAN: Right, right. The second time in our history this happened, that was not the result, 1860, and it led to the bloodiest military conflict in our nation's history.
LEVIN: And then by the way, Lincoln. Did Lincoln win a majority of the popular vote?
EASTMAN: No, he didn't.
LEVIN: He got like 38 percent -- 35 percent off the top of my head, but he won a majority Electoral College.
LEVIN: So if we didn't have an Electoral College, he may not have been President of the United States depending on how that popular vote would have worked.
EASTMAN: And we would still had slavery in all likelihood, yes. And in this election, and what we're seeing here, not just with this investigation, but with the broader investigation and the use of subpoenas and Federal judges that had been nominated and confirmed by President Obama and appointed by President Obama, blocking this President's actions -- perfectly legitimate actions.
One court actually said, "Well, it's constitutional if it had been done by any other President, but not by this President," in the travel ban case. Others are saying the President has no delegated authority to build a wall when the statutes are clear and they're reviving a non-delegation doctrine, but the underlying presumption is, well, when we delegated power to a President, we didn't mean this President.
EASTMAN: Any other President fine, but not this President. So this is really a challenge to the result of the last election, which means it's a challenge to the American people and the very notion that we govern ourselves.
LEVIN: I mentioned this a couple of weeks ago in this is program. This is not also the biggest effort in American history to disenfranchise voters, 63 million of them who voted for this President.
EASTMAN: It is, by far the largest, but it's more than just that. It's a challenge to the very legitimacy of the system. You see a national popular vote effort going on to get rid of the Electoral College, the most crucial structural components of our Constitution and it is designed to make sure that we're not a raw democracy that just acts like a mob, but in fact, channels our democratic instincts into an enlightened popular rule.
LEVIN: Why did the framers of the Constitution say look, we're not going to just vote on stuff all the time, as a matter of fact, we're going to set this government up kind of complicated -- different branches, two bodies within one body -- Congress. We are going to have judges that serve for life, but they have to be confirmed this way and then we can have an executive.
They spent a lot of time trying to figure out how to organize this government. Why didn't they just say you know what, they are states, we'll have votes and you'll vote for the President? Why didn't they do that?
EASTMAN: And if we figured out that some year down the road, we would be Twitter account, we'll just subject everything to a Twitter plebiscite.
Because they understood that you can have tyranny of one or a tyranny of a few. We call tyranny of one a despot. We call tyranny of few an oligarchy. We can also have tyranny of a majority. Raw democracy is tyranny of majority.
LEVIN: A mob.
EASTMAN: A mob.
LEVIN: And our Constitution is based on two things. One, ultimately, the people are sovereign, but the people have no just authority to deprive others of their individual rights.
And so all of these structures are here in order to confine majority so that they'd be governing, but that did not trample the rights of any minority whether a religious minority, a racial minority or just an electoral minority, that every individual human being has rights that the majority must respect if it's going to be a just majority.
And the structural components of our Constitution are designed to confine, to constrain, to direct that majority so it is a just majority rather than a mob majority.
LEVIN: What is the Declaration of Independence, sir?
EASTMAN: Well, it says all men are created equal, all human beings are created equal and that we are endowed by our Creator with inalienable rights. Those preexist government.
LEVIN: So the point is, you can have a vote, but I have unalienable rights.
EASTMAN: That's right.
LEVIN: I don't get to vote on my unalienable rights.
EASTMAN: That's right, I can't -- if I get 51 percent, I can't take the property of your other 49 percent. That's what it means.
LEVIN: And yet --
EASTMAN: We're doing that.
LEVIN: Progressives keep pushing us in this direction.
LEVIN: And so they set up the system to protect the individual, to protect life and liberty and the pursuit of happiness, which in many ways meant so you could live your life as an individual, as you wish to live your life as long as it's moral and you're not committing crimes or damaging someone else's property. This is really unique in human history to set up a government this way.
This is our founding document, the Constitution is the governing document intended to basically implement those principles to try and figure out how to set up a government.
So I often put it this way, my neighbors don't get to vote on my property rights, right?
LEVIN: I heard Joe Biden say the other day, the greatest rate you have is to vote. The greatest right you have is your life.
LEVIN: And liberty, right?
EASTMAN: Life, liberty and property and Madison defined property as property in our rights and this is key, this was understood by everybody at the time. The purpose of government is to secure those rights against any tyranny that we take them away whether again, of one or many or what have you.
We've now got a significant portion of our population that thinks the purpose of government is otherwise -- to redistribute rights, to take from some and give to others. They understood that to be the very definition of injustice or an unjust law to do that, and yet, this is what the bi-politic is leading toward now.
LEVIN: It seems though the same political forces that wish to oust this President, which deny 63 million people their vote and wave around the Constitution are the same political forces that disdain the Constitution. I want to explore that with you when we come back. We'll be right back.
AISHAH HASNIE, FOX NEWS CORRESPONDENT: Live from "America's News Headquarters," I'm Aishah Hasnie. The fallout from the Mueller report expected to continue this week in Washington. The President chiming in on the issue earlier tonight on Twitter, tweeting this, "When the Mueller report came out showing no collusion with Russia, of course, it was supposed to be over. Back to work for the, people but the Dems have gone nuts and it has actually gotten worse. I hope the Republicans win back the House in 2020 or little will get done."
And Attorney General Barr who has been criticized for his handling of the Special Counsel's report took a few quick digs, too at Washington. While speaking during the National Association of Police Association's Top Cops Award, Mr. Barr says, he hopes to visit local police more once quote, "All the beltway silliness is over."
I'm Aishah Hasnie, now back to LIFE, LIBERTY & LEVIN>
LEVIN: You know, Dr. Eastman, I see a basic thread here. Look at the Democrats in the House Judiciary Committee, on the Oversight Committee. I look at the media in this country that thinks the Constitution consists of one phrase that protects them.
There is a disregard, if not a repudiation of our constitutional order. The same people who are attacking this President saying he is violating the Constitution, although, for the life of me, I can't figure out how, that he wants to be a dictator. For the life me, I can't figure out how.
I mean, he is not FDR after all. I look at this and then I say to myself, but look at how they elements of it. Let's take the Electoral College, there would be no country but for the compromise on the Electoral College.
There would be no United States Senate if we just had a popular vote like a Parliament or something of that sort. And the Bill of Rights, there probably would be no Bill of Rights because the Bill of Rights protects the individual rights, but if we can vote, I mean, they don't have the Bill of Rights in the U.K. or most of these parliamentary systems. We have a constitutional system.
How do you think and why do you think the progressive left whether in the media or the Democratic Party are so far, they are able to get away with waving around the Constitution while trying to destroy it?
EASTMAN: Well, part of it turns into the notion of what the Constitution is, and there has been a sustained effort over the health last half- century, actually going back a full century when the Constitution is the supreme law of the land, but one of the judges once said -- or justices once said, but it is only what the justices say it is.
And they like that because it is kind of an elite progressive move in the courts to redefine the Constitution that then becomes the Constitution in their view. And the reason that was important for this progressive movement, this anti-American progressive movement was the Constitution's constraints on government serve to limit the good that they thought they could do with government.
And therefore, you had to get rid of the constraints which means you had to get rid of the Constitution structure, the notion of enumerated powers that the Federal government can only exercise those powers that are delegated to it. All of these structural constraints stood in the way of the best and the brightest experts doing the right thing and the political science was going to solve all problems, create utopias for us if we would just get these constraints on government out of the way.
And so there has been a sustained century-long effort to remove the impediment that the Constitution imposes on government.
LEVIN: To create this centralized government, this massive army of bureaucrats, the fourth branch of government, the administrative state, where no matter the election, it's largely unaffected, although this President has affected it like few others, to his credit and you're right, this is part of the progressive movement.
They attack the constitutional structures, to confining separation of powers, to confine -- and yet, they use it as a cudgel when can't, like they are against this President, but they also attack the Declaration of Independence, don't they?
EASTMAN: They do.
LEVIN: Because that kind of undergirds the ideas that are in the Constitution, right?
EASTMAN: There was a Supreme Court decision out of Kansas just last week. Kansas has a very explicit protection of life in their State Constitution; others, more broadly and the court said, "Well that says life but the life of the unborn, we're not going to cover that. We are going to impute to the Constitution," that they really meant privacy and then that prevailed over life.
So the actual language of the Constitution is discarded in order to advance a progressive agenda, a progressive idea on a particular issue, and that's what we've had courts doing for way too long.
President Trump did something very bold in his campaign. He announced the kind of people that he would be picking for Supreme Court vacancies or the lower courts. And I think that issue, more than any other is what won him the election because people quite frankly are tired of their lives and basic policy decisions being handled and made by unelected judges.
I mean, it goes back to Lincoln. You know, in his very first Inaugural Address, he was confronted with Dred Scott, you remember, he said, "You can't do anything about the slavery question. The Supreme Court has already ruled." And he said, "If we were to let that ruling on a particular case settle this contested policy issue forevermore, we will have ceased to that extent to be governing ourselves."
LEVIN: Is this not another reason why they hate Trump? Because he is trying to put people on all the courts -- all of the courts -- who have fidelity to the original intention of the framers of the Constitution?
EASTMAN: Well, it is. And I want to emphasize this, he is not trying to put people on the courts who are the counterbalance of the leftist ideologues that have been put on the courts. He is trying to put people on the courts that will follow the law wherever it leads, and that's what you want, that's what you must have in judges for the judiciary to have any sustained respect from the people.
LEVIN: So we're not talking about putting conservatives on the court from a political point of view, originalists we call them, people who will look at the Constitution like what was intended when it was adopted, try to discern that and they can come up with different results.
I mean, a Scalia and a Thomas would from time to time come up with different results, but it's the process, it's the integrity of the process, the thinking process you're supposed to use, right?
EASTMAN: Well, and it's also the thing that gives the court legitimacy. If what we're not interpreting is a higher law that's binding, then why would we have given the decision to nine unelected judges rather than just having a plebiscite, right?
The entire legitimacy of the judicial enterprise turns on the fact that we have a higher law that they are supposed to enforce.
LEVIN: It's an important footnote to this plebiscite stuff and this popular vote stuff. The left only supports the popular vote when they win.
EASTMAN: That's right.
LEVIN: When they lose they turn to the courts and the bureaucracy. Ladies and gentlemen, don't forget, LevinTV, you can see LevinTV almost every weeknight, join us at blazetv.com to sign up -- slash Mark, blazetv.com/mark or give us a call at 844 LEVIN-TV, 844-LEVIN-TV. We'll be right back.
LEVIN: You know, Professor, I see the Democrats would like to throw the Attorney General in prison for following the law, that is, he says, "I can't give you all of this report. First of all, I don't have to give you any of it, but I can't give it all to you because there's another Federal statute you knuckleheads passed that's called in our Code 6E, secret grand jury information and I couldn't give it to you if I wanted to give it to."
And they say, "Well, you give it to us." Otherwise -- and you have people talking about sending the Sergeant-at-Arms to get him. I would recommend in the House that you consider that because I think the Justice Department is better armed than the House of Representatives.
But that said, let's take a look at the Constitution a second. These committees with all the subpoenas they are throwing around for the President's personal bank records, his personal financial records, for his private income taxes -- this sort of thing. I mean, it is enormously outrageous. It is harassment and it's an attack at a personal level. What's wrong with that?
EASTMAN: Well, a couple of things. One, they are trying to undermine the result of the last election, that's first and foremost. Second, what they're doing amounts to something that our own Declaration of Independence had accused the King of doing which is issuing general warrants.
When you suspect that a crime has occurred, we go to the judge and we ask for a warrant to inspect certain things that we think will help us prove the crime.
What the King of England was doing to the colonist was issuing general warrants that meant that the King's tariff officers could go not where they suspected a crime, but where they had an individual that they wanted to investigate to see if any crime had been committed.
And one of the reasons we have a Fourth Amendment is to prevent the notion of general warrant that we target an individual we don't like and then turn his world upside down until we can try and find some evidence of a crime.
What we see happening here with the investigation, with the subpoenas, let's go through the financial records for 10 years, if that doesn't produce anything, let's go back 20 years. If that produce anything, let's go back. We know this guy must have done some crime otherwise he couldn't have gotten elected, so let's just scour the Earth until we find it.
That's like a general warrant and there's good reason why we have a constitutional prohibition against those things.
LEVIN: And he is, in addition to being President, a citizen.
EASTMAN: That's right.
LEVIN: So the Bill of Rights applies to Citizen Trump, too.
EASTMAN: Well, it does as does the Tax Code that says your private tax return is confidential. Now the Congress has, in the statutes, the authority for the Ways and Means Committee in the House and a similar committee in the Senate to request tax returns generally on a broad basis to make sure that there's not any monkey business going on in how the IRS selects people for audit.
If any individual tax return information is disclosed to those committees in that process, it absolutely has to be kept confidential.
LEVIN: Let me emphasize this, that was intended to protect taxpayers from the IRS.
LEVIN: In other words, so the IRS isn't targeting certain groups based on their religion, certain groups based on their race or certain -- so Congress would have oversight. It wasn't intended to violate separation of powers, to use it as a tool against an American citizen and so forth, and if Congress, in the end, has the power to do this to the President, I suppose they have the power to do this to the Chief Justice.
EASTMAN: Well, they do, but also, they should be very careful because the same statute that gives them the power to ask the IRS for individual tax returns, to look at whether the IRS is abusing its power also allows the President to ask for individual tax returns. So he could ask for Chairman Nadler's tax returns.
LEVIN: Yes, but Nadler would say, "That's impeachable," whereas he is trying to look at -- and Nancy Pelosi, the Speaker of the House has a lot of power over what kind of legislation comes to the floor, appropriation -- nothing happens without her say so even before it gets to the President, correct?
EASTMAN: That's right.
LEVIN: So what about her tax return?
EASTMAN: Well, her tax returns, the business interests of her family, all those things would be fair game under this rule. Let's look at Dianne Feinstein's returns and particularly her husband's business relationships with China and her votes on particular things.
Let's look at the Clinton Foundation tax returns and specific actions, Secretary Hillary Clinton took when she was Secretary of State that can be directly tied to financial contributions to her Clinton Family Foundation.
LEVIN: Is this what Congress is supposed to be doing?
EASTMAN: No, it's not. When the IRS is abusing things, Congress is supposed to be looking into the IRS.
LEVIN: Did the Democrats that want to look into this IRS abuse of the Tea Party groups?
EASTMAN: No, they did not, and I was one of those. You may recall, I actually testified in Congress over that issue and the abuse of the IRS, of the ideological abuse, slow walking conservative organizations from getting the normal preclearance for nonprofit status that everybody else gets.
LEVIN: And that's the purpose of the statute.
EASTMAN: That's right.
LEVIN: So Congress can look into abuse by the IRS, not so Congress can abuse the IRS in order to abuse a President or an individual citizen, correct?
EASTMAN: Right. Now, that's right.
LEVIN: The oversight responsibility of Congress is supposed to do relate to what?
EASTMAN: Well, to make sure that the Department of Justice and the Executive Branch agencies are doing their job and staying within the line that the Constitution sets out for their authority.
LEVIN: And perhaps pass legislation.
EASTMAN: And perhaps legislation, that's right.
LEVIN: But they're not sort of a shadow criminal investigative operation, are they?
EASTMAN: No, they are not.
LEVIN: What about the states?
EASTMAN: By the way, and they can't be. They're not structurally set up to be that way. It becomes a circus, a show trial as we've seen in several of these hearings, yes.
LEVIN: As it is right now. What about the states like California and others who think they're very clever and they are trying to pass statutes to say, "You don't qualify to run for a primary in the general election in our state unless you reveal your tax returns." Is that constitutional?
EASTMAN: No, it's blatantly unconstitutional -- it's totally unconstitutional. The Supreme Court decided this issue a long time ago, back in the early 1800s on a Member of Congress when a state tried to impose an additional restriction on its members and they said their Constitution sets out the requirements for Federal office and the states can't add to those requirements.
Well, saying somebody has to disclose their tax return is adding a requirement to running for Federal office in the states have no power to do that.
LEVIN: So these states want to violate the Federal Constitution.
LEVIN: While waving it around.
LEVIN: We'll be right back.
LEVIN: Professor Eastman, I want to tackle what unfortunately is one of the most boring issues in America, but the left keep bringing it up -- the Emoluments Clause. I have to tell, you and I have been around the Constitution for many, many decades and I've never heard it really brought up in the way it's being brought up today as they scour the Constitution looking for things to destroy.
The Emoluments Clause basically says, "Look, you're a President or a senior official in the administration in the government, you're not allowed to have foreign titles or foreign appointment," okay, great, and "You're not allowed to receive emoluments," payments and so forth from foreign governments.
And so they say, well, here we have a President, and he own a lot of things, a lot of real estates. But this hotel in Washington D.C., in particular, a beautiful hotel, I recommend it to anybody who would like to go here -- the Trump Hotel.
When these foreign heads of state and other diplomats stay at that hotel and pay for the hotel rooms and pay for their meals, that is an unconstitutional benefit to the President of the United States, is that right?
EASTMAN: There is so far a single court that has said that's right and it's laughable. I mean, look, if that were the case, then President Obama accepting the Noble Peace Prize would have been an unconstitutional emolument.
Any President that owns stock in any foreign corporation that had ties to a foreign government when that stock prices goes up because of some action of the foreign government, that would be an unconstitutional emolument, that's never the way we've looked at it through 200 years of our history.
LEVIN: And yet, we have a judge, I believe he is in Maryland, and maybe it is D.C. who has ruled that Maryland and Washington, D.C. has standing to bring the suit. And I am thinking, "How the hell do they have standing?" Because they get tax proceeds from the hotel.
So in other words, they get a benefit from the hotel so they could sue under the Emoluments Clause that they shouldn't get a benefit from the hotel?
EASTMAN: Yes, yes.
LEVIN: Is this not the problem when you have a judiciary that has become in many respects, despite what the Chief Justice said so thoroughly activist and partisan.
EASTMAN: Well, you know, I want to segue back to the travel ban cases because something very similar happened here. The judges that blocked President Trump's Executive Order on the travel ban, which was not a ban, it was a temporary suspension didn't even cite the statute that clearly gave him the authority to do what he had done and that had been used by every President from Jimmy Carter forward and it was only this President that somehow run afoul of it.
These judges have become part of a resistance movement to undo the results of the 2016 election and it really is a travesty. I think that's a greater threat to our constitutional system and the rule of law than any of these particular incidents, the embracing of the judiciary of this resistance movement.
LEVIN: Didn't we also have a judge who said that when Obama put in place certain environmental regulations through Executive Order that this President can't reverse them through Executive Order? Haven't they also said -- some of these judges -- that DACA was put in place basically that was written out of the White House, a piece of legislation that was adopted through Executive Order that this President can't reverse that?
So a President can't reverse the executive decisions of the President who preceded him?
EASTMAN: Decisions that were themselves unconstitutional. My favorite is the DACA and DAPA case, the immigration deferred action. President Obama, after 22 different times saying he had no legal authority to do it went ahead and did it anyway, or rather his Secretary of Homeland Security did it with a memo, not even an Executive Order.
It was held to be unconstitutional because it didn't go through regular requirements for adding a new regulation. The same Janet Napolitano who did that illegal act then sued Trump for reversing it without going through the notice and comment process that she hadn't gone through. I mean, it was laughable and yet you get a judge that says, Napolitano's suit wins, Trump has to stop the revocation of this illegal action. It is really unbelievable.
LEVIN: When we come back, impeachment. We'll be right back.
LEVIN: Professor, the framers spent a lot of time on this issue of impeachment. They looked at Parliament, they looked at English common law. They looked at definitions. They rejected some like maladministration was considered to a lower bar. Treason, bribery, high crimes, misdemeanors, I keep hearing it said, "Well, it's a political act. It's a political act." It's whatever the House of Representatives said. Is that the way it's supposed to work?
EASTMAN: No, I mean, in practice, whatever the House of Representatives want is going to play out and they're going to get the vote.
LEVIN: And how are they supposed to conduct them?
EASTMAN: Well, you know, treason, bribery and other high crimes and misdemeanors had a very specific understanding. High crimes and misdemeanors were not the ordinary crime, high crimes and misdemeanors was a term of art of fundamental abuse of the office that would undermine the legitimacy of government itself. Those were the kind of things that we're talking about.
They did not want a King who was above the law, who could do whatever he wanted.
LEVIN: Has that happened here?
EASTMAN: Well, no, I mean, I've been stunned at how scrupulous Trump and his team have been in staying within the legal line that they had.
They could have it otherwise. His immediate predecessor, you know, blew through the lines on executive power and constitutional authority on numerous occasions and they could have said, we are going to take what Obama did as precedent and we're going to do the same thing in the other direction, but they haven't done that.
LEVIN: And here's the problem, the President doesn't serve at the pleasure of the House of Representatives.
EASTMAN: That's right. This is not a Parliamentary system.
LEVIN: And if they get their way? That's what is going to happen. And it is going to be done to the next Democrat president. John Eastman, it's been a great honor.
EASTMAN: Thank you.
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