Trump's Picks Are So Bad He Wants To Subvert His Own Congress. Can He?

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:00 Clip: You must never, ever give up or give in. You must keep the faith and keep your eyes on the prize. That is your calling. That is you mission. That is moral obligation. That is mandate. Get out there and do it. Get in the way. Change happens because people care. The people have the power to make this life free and beautiful. To make this live a wonderful adventure.

0:00:38 Clip: I still believe with all my heart, America can be a place where no child is left hungry, no community is left behind, and no one gets told they don't belong. Country is always worth it.

0:00:57 Thomas: Hello and welcome to Opening Arguments. This is episode 1087. I'm Thomas Smith. That's real-life attorney Matt Cameron. It's hitting me hard today, Matt. It's hitting me hard. You know, it comes in waves, but seeing some of these pics for Trump's cabinet and other various things he's ruined. Going to pre -answer. I'm not doing great. How are you not doing?

0:01:19 Matt: M having a constitutional crisis because I forgot to eat, but that's different. My constitution is affected. We're going to be talking a lot about constitutional crises today. Feel you on these appointments. They are demoralizing, but that's the point, right? So I to talk about how maybe we could stop them or not or what's going to happen. Are facing just a whole slew of things we've never seen before. We knew that was going to happened, but I don't think I knew that it was going to happen within one week of the election.

0:01:42 Thomas: Yeah. It's certainly accelerated our mine and Lydia's, for covering the appointments. We're going to have to do that up real quick.

0:01:49 Matt: Good. Got your work out there.

0:01:51 Thomas: Yeah, a lot to do. Gonna figure out how best to cover this. But I mean, the Matt Gaetz thing, all of this was outside of what I thought was possible. Like I was anticipating this and yet seeing it is still like, oh, my God. I mean, a guy who's very likely guilty of some really disgusting crimes becoming in charge of the investigating disgusting crimes of his own. Like it's just I can't even it's so much worse seeing it than I even was ready for.

0:02:20 Matt: The secretary of defense pick, I think is actually worse and more dangerous.

0:02:23 Thomas: You mean the guy from Fox News?

0:02:26 Matt: From Fox News, the guy who wrote a book saying that liberals are around him is among us and that, we you can't trust anything they do. And is a Christian nationalist confirmed and was actually found to be too dangerous to be anywhere near Joe Biden with a gun previously by the National Guard.

0:02:38 Thomas: What? I don't even didn't catch that one.

0:02:41 Matt: His commander called and told him he was not allowed to attend as part of the guard and basically the honor guard on the inauguration because his tattoos and other concerns about his extremism, they determined, basically just told him not to show up. So we're talking about a man who could not be trusted around Joe Biden with a gun running the world's largest military, the guns.

0:03:00 Thomas: Running the guns in charge of all of the guns. Gun man.

0:03:04 Matt: Going to get into another time and I might actually have to read his book. That's how depraved I am. It just came out in June.

0:03:09 Thomas: He has a book.

0:03:10 Matt: Yeah. His book, it looks really scary. It's got a bunch of stuff that basically suggests that it's okay to go war on liberals. Roles uh just thinking that

0:03:15 Thomas: Maybe we do that for lot awful books or something, because I actually want to read that, too. I do, because it's like the secretary of defense is a Fox News personality. Like I, you know, it's not every day that I feel I could take on the secretary of defense intellectually. In fact, I would say up until now it hasn't happened, but now it's like, oh yeah, I, Thomas Smith, nobody could read this idiot's book and be like, hey, you're the secretary. You know, the secretary, the defense, he's wrong about all these things. It's a weird, it's

0:03:19 Matt: Well I don't know if you want to but it could be a read yeah sure yeah yeah sure

0:03:51 Thomas: Not a good feeling. I shouldn't be it, Matt. If there was a secretary of podcasting, maybe, maybe I should be able to, you know, keep up with that government, government appointed position. Any other one, you should feel like, oh, that's, you Know, agree or disagree with them. They have a lot of expertise. I don't know shit about the military. Agree or disagree With whoever I don't, you KNOW, I'M NOT AN EXPERT. This guy, what are we doing? I CAN'T, this, this is so tough. Tulsi Gabbard, whose expertise is in Russian assitry, is to be in charge of what was that one? The CIA or the FBI? No, DNI.

0:04:23 Thomas: That's right. Yeah. It's hitting hard today. This is what he's

0:04:22 Matt: Dni national intelligence yeah yeah well the the cia pick is basically a cuminon guy so iraq cliff so that's another thing to talk about but what I really want to talk About today is how trump is going to shove all these people through because it's illegal, what he's proposing, almost certainly. And if you care about the founders and what they intended for the constitution, this was not it. There's no question that

0:04:46 Thomas: I keep hearing this recess appointments thing. I forget what that's all about. And that is the perfect thing for opening arguments to explain to me and I don't remember how that works or why or what I But anyway, sorry, I'm just today was this a bad day of this was like I haven't had the, you vomit and inducing anxiety of election night. But like, this is close. This is this is really bad. So,

0:04:58 Matt: We'll do it. I got to be honest that reading about Pete Exeth last night, it's the first time I've actually been afraid during this process, like actually in fear. I just have to admit that. Yeah, scary man. But But, you know, we're here to talk about all the different ways that we might be facing a constitutional crisis, and we've got plenty to talk about.

0:05:23 Thomas: I right. Well, we're going to take a break here. Consider supporting the show. patreon.com/law it will eventually go toward our bail um then our defense fund I think uh if you know appreciate it um and also get get all that lot awful movies if you haven't listened to it it was really fun it was a departure for those who are like hey this is a little intense and it is uh that was a fun departure while also being educational and funny and that was a great lot awful movie reminder that's at the second tier of patreon and above and one final final note, blue sky, get out of Twitter slash X. We're done done. With that. Let's Let's get on blue sky. It seems like people are doing it. And I long just wanted there like, all I've wanted is for somebody to pick the alternative. That's all that matters. I don't care about the ins and outs much of like how these websites or apps work. I really don't know. I don' t really care. All I've been frustrated by is like, let's just all land on one alternative because the thing that we want in a product like that is for the people to be there. Like

0:06:21 Thomas: That's why I use Twitter for any length of time that I did is the people I wanted to hear from were on it. That's all that matters. And so it seems like if we all make this push for blue sky, is blue sky the best option? I have no idea. I don't I don't know anything about it.

0:06:21 Matt: That's fine. It's pretty good. It' s pretty good and honestly, as of this week, it seems like where everybody's at. AOC has made the switch and everybody's come with her. So I'm feeling good about it and open args, find us anytime.

0:06:40 Thomas: It let's do it. Open args and serious pod. If you don't mind, search us up on sky, let's do it. All right, let's take a break and then we'll get to the horror of today's episode. Where shall we begin, Matt?

0:06:57 Matt: Let's start with the transition itself before we get into the recess appointments issue. And the theme today really is just different ways that Trump is already either breaking the law or threatening to break the law. And the presidential transition is one in which he's already done it. He's already violated the Presidential Transition Act of 1963, which was amended actually by the Presidential Transition Enhancement Act of 2019, co -sponsored by Elizabeth Warren, who's had a lot to say about this this week. Trump himself signed it, the most recent version of this, and he's not following the thing that he signed. No surprise, I guess. Transition teams, of course, are very important when you're talking about taking over the federal government. The You might remember that Trump pressured his head of office and management of budget to not sign off on the ascertainment. Remember that whole mess with Emily Murphy, I think it was?

0:07:42 Thomas: I, I mentioned it on the episode that Lydia and I did where it was the, um, gsa what's administrator to not sign off I we'd both forgotten about them it's easy to forget because you know there's a lot to remember

0:07:45 Matt: That's right. Yep. Yep, so many Trump things that we're going Yeah. The Presidential Transition Act is trying to ensure, because you're talking about a battleship here, you're taking about a massive operation that has to be turned over. And so the idea is that the campaigns begin to act as if they're going to be transitioning way early in their campaigns. And by September 1st, -off they with GSA, so they'll be ready to take office space and start coordinating with different agencies. By October 1st they're supposed to have signed ethics agreements, and you can see where this is going. And November 1st They're basically supposed to have everything wrapped up so that they can start interfacing with all these agencies and going to these meetings and being briefed and coming in. And you might remember the Obama team, diligently, because they're a bunch of nerds, had binders everywhere. They had bindings for every single agency. They They had this beautiful staff for Trump to walk in and take. And there were agencies that didn't have a transition team people come in for weeks, in some cases, after the inauguration.

0:08:45 Matt: There was just, you know, Trump is not great at transitioning. You might remember he fired Chris Christie and threw out his entire transition plan. But I will say he had actually appointed a transition team by June 1st of 2016. He didn't appoint his transition team this time until August 16th. And we still don't know a lot about it because they haven't signed these agreements. So there's a lot that's still not public.

0:08:45 Thomas: That's right I remember that geez yeah huh

0:09:06 Matt: And the real concern, of course, is that he's going to use the transition team as a way to get Project 2025 rolling now. That is something we need to look out for. A crisis in progress here because the White House agreement that they're supposed to have signed as of the 1st of October, which I will note it is now the 14th of November, them into the different agencies and allow them to start receiving presidential communications and being briefed and being part of the government. And the previous one in September would have given them access to the IT of the government. So right now they're presumably operating unsecured. They're not operating at the levels of federal security. And the campaign's already been hacked at least once, maybe

0:09:02 Thomas: Yeah oh yeah

0:09:42 Matt: Twice. So not great, they're doing all of this. I mean, there's all kinds of reasons to be concerned about the way that they're handling this. And it really just seems like they're doing it so they don't have to sign any kind of conflict of interest statements, so they don't have to disclose everybody who's on the team,

0:09:55 Thomas: I didn't think of that part yeah

0:09:56 Matt: This ethics thing is only for the transition, but it's very important that they maintain ethical standards during the transition because you're talking about all these private individuals that are being involved, all these potential conflicts, all these different ways people could be influenced and getting their friends into power. I mean, there's obviously tremendous amounts of opportunity here. Yeah, so just very important we have a smooth transition. The Biden administration seems to be doing everything they can to make that happen. But the question becomes, what happens if they just refuse to sign off?

0:10:12 Thomas: Grift and yeah corruption I was just going to say, yeah, let's skip to this part where it's like, does it matter, Matt? We did so much of this in 2016, 17, all the way through. What happens?

0:10:32 Matt: Question.

0:10:33 Thomas: Now, the fact that this act or whatever in 2019, I would hope that like we thought of this, you know, in terms of some actual mechanisms to enforce anything. Because we've learned there's something doesn't have a real mechanism of enforcement. It just might as well not exist when Trump violates it.

0:10:49 Matt: That's right well the mechanism here and this is where he's going to start to play chicken with the entire federal government is that they don't have access to high level security clearance information they DON'T have access to government IT they DON't have access to agency stuff that they should be working with to transition and if they haven't signed it by the time that he's inaugurated presumably they still don't get that I don't know I really don't know the

0:11:10 Thomas: So they just can't do like government stuff? Yeah, it does seem like you need that.

0:11:13 Matt: Government yeah and as it is Because they're pretty late already. And not having signed off and working through these memorandums of understanding, as they're called, with the government now is already going to set them back. And the 9-11 Commission actually found that the delayed transition, the Bush administration, was a serious issue for national security at the time in 2000. So yeah, you can imagine. Imagine.

0:11:34 Thomas: Back when we had like semi -competent Republicans, even then they were messing it up, huh?

0:11:39 Matt: Who were pretending to do regular government stuff. That's right. So

0:11:42 Thomas: When your interest is in ruining the government so that it can't help people of color in any meaningful way, then you're not super interested in doing it well, I guess, is the lesson. Ethics agreements or whatever they are happens if they you know were to sign these things and violate those

0:11:59 Matt: For sure. I'm looking at the Biden Harris MOU from 2020 when they signed on to a number of ethics requirements, which included things like, obviously, avoiding all conflicts of interest if possible, not doing any kind of insider trading, not advising foreign investors. Governments, you know, all the things we'd like to know the Trump team is not doing right now, receiving gifts, right? That seems like something that you should be able to sign off on. It said that general counsel is going to be overseeing these ethics requirements and that they will promptly address alleged violations. That's all it says. So, you'll deal with our lawyers, the

0:12:26 Thomas: I think there's it might trigger an investigation I'm seeing. But who signs this is actually like Trump himself or just this team thought

0:12:33 Matt: Transition team, and every member of the team has to sign off on it. Has said that they're just too busy.

0:12:38 Thomas: I saw Trump had to sign one. But OK.

0:12:39 Matt: He does. He absolutely does. Yeah. Yeah.

0:12:41 Thomas: Here's the point I want to make. Like, I've already seen I mean, Elizabeth Warren was that op ed or whatever, wherever said essentially, hey, he's already breaking the law. I should know. I helped write it from 2019, as you already referenced. And right we're already getting my of my biggest annoyances from the trump 1.0 era that I just have to talk about the the something crowd oh then do something the the super helpful then do something and the thing I would have hoped that in 2019 and actually actually, I would say for certain that if anyone was going to do the best humanly possible job to make something that would actually have teeth as much as possible, it would be Elizabeth Warren in 2019 after already seeing what Trump was the first time, especially. And I was wondering what that was. And now that you say it, it actually is kind of significant. If they don't agree to these things, then they can't even, you know, log into the computer they need to to do their job. That's actually that actually is good. That actually is like a real deterrent, because if you're not going to agree to these requirements in order to do this job, well, you're not going to be able to do the job, at least somewhat. What. And

0:13:47 Matt: That that goes both ways. I mean, it also means you're not getting security briefings right up until the day of inauguration. So you're coming in cold on everything. I means, that's very bad for everybody. If you care about that sort of thing, maybe in that position you don't.

0:13:58 Thomas: I suppose there's pluses and minuses, but if we're looking at people are trying to use the government for corruption purposes and going after their political enemies, then not being able to log in their computer might be a good thing. But I do see, I mean, in terms of like, I which is never something I think that much about, but I guess in this day and age where the whole world, Unfortunately, this is all happening out in the open in real life. So the world knows how stupid we are. And I imagine if they want to try to get away with anything, this would be a great time. And we've already seen that in the first Trump admin. But I just want to finish up the point by saying the most unhelpful, idiotic thing in the world to me was the do something. So it's saying, so Warren, I guess what she's supposed to be able to citizens arrest Trump, maybe that's what she, that's the do something, you know, hey, they can't do anything. Thing if we didn't go out and vote to give them the political power to do it. It's this feeling that people have that really frustrates me because it leads to this lack of support on the left. It perpetuates itself where a bunch of people who don't know anything about how government works or anything works say, well, surely there's something they can do. They're just not doing it because they don't want to or they're incompetent or corrupt. And therefore, we're not going to support them, which further erodes their ability to do something to begin with if they don't have the power political to do it." And it's also just logically contradictory. Like if should be some quote unquote thing that Senator Elizabeth Warren could do to, I don't know, like Trump in a way that's not within the system, then by that same token, if she were to do something that is sort of outside the purview of the system in that way, then the other people could do it too. Like if that was an option, then the annoying answer to all this is we have a system still somewhat now and there are rules to it. And what we needed to do is vote to give people to the do that. So yeah, for now, Elizabeth Warren, sorry, maybe I'm getting a little defensive of my personal hero, Elizabeth Warren. People went after her a little bit. She's going to do what she can do right now, which is what she did, which was write

0:15:56 Thomas: An op -ed. Because you know what? That's the amount of voting we did for the for Democrats. The power that we gave them, which is none.

0:16:04 Matt: That's right. A very good point. Again, the Transition Act was written in the assumption that presidents want to make the transition and that they want it to be smooth. But if you don't actually want to run the government and you're just trying to grab everything that's not nailed down and maybe a bunch of stuff that is, I don't know at this point, knows? Trump administration over and over again, well, he can't do that. And we're going to be hearing that a lot more because, We're stress testing the entire constitution and our system of government.

0:16:29 Thomas: And they have, mean, I now they can do anything. I mean, it's the they have the people who are in charge of deciding what the Constitution said. So it's there's basically the only limit is the conscience of checks notes. Coney Barrett? Basically like gonna be the check on Trump. Possibly.

0:16:47 Matt: Like, no, this, no reason not not to pretend that it's not bleak. This is not a difficult time. Speaking of, can he do that? Move on to talking about recess appointments because we need to talk about how Donald Trump is going to get these clowns through, the clowns that we were just talking about at the beginning of the episode because at this point, he's working against his own party. The Republicans do not like Matt Gaetz. He's Gaez is not a popular man in the Republican Party. And I've been hearing that there are a lot of concerns about Hegs as well from the military. The military doesn't want somebody who is that radical and extremist to be running the military, obviously.

0:17:17 Thomas: Wouldn't think so. And that unqualified. And

0:17:20 Matt: Yeah. And again, of course, Gaetz has only served as an attorney, actually practiced for a year or two. And Hegs has no executive experience, as I understand it.

0:17:27 Thomas: I think Matt Gaetz only became an attorney just to learn what the age of consent was in each different state. Let's back up and talk about the normal process. So, like, Trump picks these people and some number of them need Senate confirmation, some number of them don't. And what is that confirmation threshold? Is that a 60 vote thing? Is that a 50 vote thing a

0:17:47 Matt: Is majority. They have to get through the Senate for a majority and it is about a thousand positions that are Senate confirmed and When it comes down to it,

0:17:52 Thomas: Thousand? Wow. Now, does this happen? Inauguration or do they do somehow do it now? When did, when does this actually happen?

0:18:01 Matt: Under the normal process, of course, we expect that the president gets sworn in and then immediately nominates a bunch of people to the Senate who begin to consider and hold hearings and get the most important positions filled as quickly as possible and just requires a majority of the Senate to vote and confirm them. They traditionally have hearings, as I understand it, those aren't necessarily required, but of course the constitution requires the advice and consent of the senate to do these appointments.

0:18:23 Thomas: Raises the question, Matt. Just want control of everything. Why is this already a conversation? This is bizarre. Imagine winning control of Everything, every single branch, and then being like, well I gotta find a way to go around the Senate. Like what? What?

0:18:36 Matt: Well, subverting the Constitution is one thing, but he needs to subvert his own party to get Matt Gaetz in power. I mean, and think about what that means.

0:18:42 Thomas: So, Matt, so they're already detecting just from some of the rumblings and that I guess that is kind of the purpose of even announcing this stuff this early, because it doesn't actually if you hear all the headlines about Trump picking people, nothing's official yet. It's just who he would attempt to get, except for like what, chief of staff or something. There's the ones that don't require Senate confirmation, I'm sure, kind of instant. Anyway, and he's already hearing like, well, they're not going to do this. And so the conversation is, how can he get around his own Congress, his own party?

0:19:10 Matt: And think about what that means. Everybody needs to stop and seriously consider what it means that the President of the United States is going to go so extreme that he's going to out -extreme a fairly extreme Republican Party. That's what he needs to do here. It's pretty bad. And it says a lot about these appointments. And this whole thing, too, is also just kind of a stress test and a loyalty test up front. Now, remember, the first thing I thought of actually was Sean Spicer when I saw this truth that I'm going to read to you. Know, Sean Spacer coming out within minutes of the inauguration and being forced to say, largest inauguration in history. I mean, we all knew that wasn't true, but it was just a little test.

0:19:39 Thomas: And he like yelled at us about it. It was that was so bizarre. Never forget that.

0:19:47 Matt: It was. Just a little test to see, and he passed the test beautifully. And of course, that's the beginning of how you do these things. And Trump upfront needs to cow the Senate. He needs to find people that are going to do the things he wants to do with the Senate, so this is what he tweeted. Any Republican senator seeking the coveted in caps leadership position in the United States Senate must agree to recess appointments in the Senate exclamation point, I don't know where else they would be, without which we will not be able to get people confirmed in a timely manner. Skipping ahead. We need positions filled immediately. Additionally, no judges should be approved during this period of time because the Democrats are looking to ram through their judges as the Republicans fight over leadership. In caps, this is not acceptable, period. Thank you, exclamation point. Thank you for thanking us. That's very polite. Yeah. So this was his kind of warning shot here that he expects because the Senate was in the process of picking their next majority leader. And it basically kicked off a war to see who could lick the boots the best. And

0:20:44 Thomas: Once again, another testament to how crazy this is. Most successful Republican Senate majority leader in the history of time, Mitch McConnell. Not in consideration, obviously. Not they not totally never going to be a part of it. That guy, if you are team Republicanism, he's maybe the greatest Republican in accomplishments ever in our entire history. Like what he was able to accomplish, the weight of what he Was able to do. What he was capable to accomplish for the bad guys was truly, truly to even overstate. And it's like, no, he is definitely on the outs. There is no way he is getting that leadership position, if he even would want it.

0:21:20 Matt: And it came down to Rick Scott, John Cornyn, and John Thune. And Scott, of course, is an extreme Florida MAGA guy. And he immediately, this is, I just noticed this and I went back to look at these tweets. Trump tweets this at 1121 AM on the 10th of November at 1127 AM. Rick Scott, six minutes later, 100% agree. I will do whatever it takes to get your nominations through as quickly as possible. And again, he's just saying, I'll do recess appointments if you want recess appointments. Now, as we'll talk about, recess appointments sounds like a normal parliamentary kind of thing. What we're talking about is insane, and I'll tell you why in a minute. But let me just, John Cornyn, the moderate, again, pretty extreme in his own way, but for this purpose, of the moderates by the MAGA MAGA standards, says that additionally, to make recess appointments. He doesn't say how we get there. And then he quotes the Constitution because they love doing that, not giving the context about recess appointments. And then finally, John Thune, this is the one that's seen as somehow giving us hope, which is how bleak things are right now.

0:22:16 Matt: Must act quickly and decisively to get the president's cabinet and other nominees in place. All options are on the table to make that happen, including recess appointments, we can't let Chuck Schumer and the constitutionally, I guess. That's where we're at.

0:22:38 Thomas: The way it's been done literally for, I don't know, centuries, you know, they're not even going to try it first. That's what's amazing. It's not even like they're running into difficulty, so they're going to trying this nuclear option. They're just right off the bat, which is a disturbing sign of what is happening here. I mean, Trump just wants absolutely unchecked power, obviously.

0:22:41 Matt: And if you care at all about what Alexander Hamilton had to say, as they all claim they do, you can't go originalist on this argument, on the Trump thing. Hamilton was extremely clear that recess appointments are a supplemental process. They're intended to be temporary. And the whole point of it is that he, the president, would be ashamed and afraid to bring forward for the most distinguished or lucrative stations candidates who had no other merit than that of coming from the same state or being in some way or other personally allied to him or possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.

0:23:31 Thomas: Wow. Can we take a step back then? So now enter the recess appointments idea, the term we keep hearing. That Work? I mean it's pretty, somewhat intuitive, I guess. But more importantly, when you talk about the leader needing to support, like how many senators do you need for this scheme to happen? What are the mechanics of how this works? And like how could it be stopped? How many people does Trump need? How many loyalists? Is it truly just the majority lead? Or how does this work?

0:23:59 Matt: So I will try to sketch out the best I can how this looks. Because again, remember, this is not an organic recess. This would be the the first time in American history that this very one weird trick in the Constitution gets used to create an artificial recess specifically for the purpose of doing this, which just to be very clear, that is an end run around the Constitution. That is exactly what Alexander Hamilton was saying we should not be doing. So Ed Whalen in the National Review, Ed Whelen, you might remember from such times as the Kavanaugh appointment when he did the extremely ridiculous reconstruction construction of the neighborhood homes to try to figure out about whether, yeah, yeah.

0:24:38 Thomas: That's journalism, folks.

0:24:39 Matt: Is a Republican toady, but this is a little much for him. He calls it a bonkers plan. And he said, as he's 13th that he's been hearing through the grapevine about this crazy plan that would allow him to do this. Now, again, there has to be some way that you're going to be in recess because he's saying he wants recess appointments and there's no scheduled recess. And to be very clear about this, Congress for a while has been doing these pro forma sessions that just keep it in session. Recesses originally were for the time when you're talking about horses and you have to go back to your home district and maybe you're going to be out for a couple of months and you'd have these long scheduled resources because travel was very arduous. None of that is with us today. We can get back to DC pretty quickly. Pro form of things are supposed to make sure that presidents can't do this. And as we'll talk about it, Obama tried to push it. Didn't work very well. But actually to led the Supreme Court precedent that we'll deal with.

0:25:21 Thomas: Obama did? Oh, right. That's right. Because they just decided to stop letting him have a staff. I remember now.

0:25:31 Matt: Just lay out the plan based on the Constitution. Again, this is somebody looking at the Constitution and deciding to try to find out how they can rules lawyer it, as we'd say in the D &D. So what we have here is a provision in which if neither House of Congress shall without without the consent of the other, adjourn for more than three days, that in case of disagreement about the time of adjournment, which all sounds very parliamentary and pointless, but the president may adjourn them to such time as he shall think proper. So there is a loophole that allows the president to adjourn the which is a little scary when you think about it for a minute.

0:26:03 Thomas: Guess. But like, what does that mean? Because you would think just from what you've said so far, I would think, OK, if a president needs like approval of the Senate for these positions, if you're adjourned, then it sounds like you can't get approval. Approval. Allows something to still happen when the Senate is just talking horses?

0:26:20 Matt: Article 2, Section 3 does allow for recess appointments during times when Congress is not in session. And that does not require anything but the president's appointment. That's all he needs to do. Does not have to go through the Senate at all. Now, these are temporary. They can only go until 2027. In this case, they'd is right.

0:26:37 Thomas: Wow. You get two years of it though. So would think it would be like yeah okay temporarily while we're out talking horses you can have someone in the chair of the thing you're trying to do for you know 10 or like the length of time until we get done from our horse hot talk from saying nope just the entire period of time of that session of congress basically which is the two years get wow

0:27:00 Matt: President shall have power to fill up all vacancies that may happen during the recess of the Senate by granting commissions which shall expire at the end of their next session. There's some real questions in here that I'm going to talk about, but let me just get through what the plan seems to be, as laid out here by Ed Whalen and sort of confirmed by others. This plan would require the of Mike Johnson and John Thune. It would require the House and the Senate to decide that they can't agree. And during session shall, without the consent of the other, adjourn for more than three days. The Senate were to just adjourn without the consent, then you'd have a disagreement and the President can adjourn them, so that's not not great, but you could have the House and Senate just agree to adjourn on January 20th. Long as 10 days pass per the rules, then at that point, he'd be open to a recess appointment and you can just install anybody you want, including Matt Gaetz and Pete Isworth for two years. And after that time, if you tried to get them in again through another recess appointment, they actually couldn't get paid. And so there's that. I don't think that would necessarily matter, but they really want the power. We're going to talk next time, I think, about some of the ways that he has previously played with the Vacancies Act, because I'm afraid that's going to come into play here too. Is a very well -known Trump tactic of moving people around. But all of these people would be acting

0:28:13 Matt: At the point at which they're appointed through the recess. And he's said before, he likes acting. That's how he wants it. Though, the House adopts a concurrent resolution and provides for the the adjournment of the House and the Senate. The Senate either adopts it or rejects it. And either way, you have an adjournement or Trump has to adjourn it. Then you have an appointment and it's that simple. It's not great either that it says in the Constitution that he can adjourn until such time as he shall think proper.

0:28:39 Matt: There's been some concern that that could be an indefinite adjournament. I don't think, again, the extent that the rules matter, it could not be indefinate because the Constitution Constitution in the 20th Amendment specifically provides for January 3rd as the day when the new Congress has to come in unless Congress changes its own rules. So there is a constitutional date that they have to meet again. So even if Trump adjourned Congress for the rest of the year, they'd still have to come back. Now, again, I don't know that he wants to adjourn Congress for this year. That is absolutely a nightmare scenario, of course, a ruling by executive order. We're talking about all kinds of new territory here.

0:29:09 Thomas: It's not like he can there's not a recess version appointments version of passing laws is there okay so it sounds like

0:29:14 Matt: Not yet. That's where where we really get in trouble. Yeah.

0:29:17 Thomas: Why yeah it It sounds like there's no way for that to exist.

0:29:20 Matt: Does need them. And do things like funding mass deportation, he's going to have to get that money somewhere. That's what has been thrown around as the only way that he could induce a recess because there's no planned recess and they're not going to take one. So, that is very concerning for obvious reasons. So let me just take through some of the legal issues here. As I mentioned, Barack Obama got so fed up with the way that the oppositional Congress was keeping him from getting anybody through, that he decided to have his Office of Legal Counsel write up a memo, which made a lot of sense, actually, saying that these pro forma things didn't really count and that they could decide that Congress had actually been adjourned for more than 10 days because there was a long period where they were just doing pro forma sessions every three days or whatever. And so on that theory, he appointed a number of people, including two members of the National Labor Relations Board. Board. And a canning company did not like an NLRB decision and decided to challenge the board members in saying that they were illegally appointed and took that up to the Supreme Court in 2014. members of the court at that point with Breyer writing for the majority found that this was not a proper appointment, that the pro forma sessions were fine, and that Obama did not have the right to appoint these people. Only in one line in that, because it wasn't really relevant to it, did Breyer actually say, the Constitution gives the president, if he has enough allies in Congress, a way to force a recess. It wasn't the point of this one. That's still a very open question about how he does that. But they went through the history of recess appointments. And wrote a concurrence in the Noel Cannon case in he did an originalist analysis, which seems to be more or less correct about how recess appointments are supposed to work. He basically said that's an anachronism, we shouldn't be doing them. But there's a whole question now, a very interesting technical question, which This would be a lot more interesting if we were in different times, I think. But Scalia was saying that the president can only fill the vacancy that arises during the recess. So this is a really weird idea that Josh Blackman has come up with, a conservative legal scholar, saying that potentially you can have a situation where the president, on Inauguration Day, uses the Vacancies Act to move a bunch of people into cabinet positions as acting and then has them all resign immediately. And at that point, a vacancy has quote -unquote happened, because Scalia went on at length in his concurrence about the dictionary definition of happen. And I agree with Scalia

0:31:28 Matt: On this one, that happen means that it happens during the time, not that it happened before or that it's something that was going to happen. So in that way, you could potentially have this chess move that using the vacancies act, which is something we already know he likes to do, and would be an intersession recess. Obviously, he can't do this, but that doesn't matter.

0:31:45 Thomas: Well, you say obviously, yeah.

0:31:46 Matt: Right. This is not the purpose of the recess appointments clause. This was put in the Constitution. We know that for sure from Alexander Hamilton himself. So this is not something he's supposed to do, I should say. Maybe not. He can't. But if he does, again, this is another potential constitutional crisis. If you have the situation in which Mike Johnson and John Thune agree to do this or forced to have joined it himself. We're in a situation in which he's going to make recess appointments through an end round of the Constitution, which is going to be technically legal. Democrats could certainly try to challenge it. I would think they would try to find some way to file suit. It'd be kind of the opposite of Marbury v. Madison. In in Marbury, the person who had been appointed a judge was trying to enforce his commission, and the Supreme Court was reviewing whether or not he should have been appointed. And in this case, the Democrats would be saying this person was not legally appointed, and it would have to be left to the Supreme Supreme Court. And we know, knows what could happen at that point. This question about intercession versus intercession appointments. Is the question about whether a vacancy has happened or whether it's been created. And all of these things are just going to have to be decided. And what I'm hoping is that all of this is just to get us talking about it, but we have to be prepared for it to actually happen.

0:32:51 Thomas: This is, again, this is still something that happens after inauguration, right? Or is there some talk of it being, that's what's confusing me. It almost sounds like he's talking about it right now.

0:33:00 Matt: Does. Because he wants them to cow on it right now. He wants them to agree that this is what they're going to do because he wants surety that he's going to get the people through that he wants, the worst possible people.

0:33:09 Thomas: Well, and furthermore, maybe that's another way to pressure them to get the votes he wants anyway. So if he's threatening to do this horrible thing, maybe some Republicans are like, all right, we can just, well, maybe I'll cast that vote for Matt Gaetz that I wouldn't have otherwise or something just avoid this mess.

0:33:26 Matt: Or someone slightly less horrible waiting in the wings that he could say, okay, well, if you want to do the regular way, if we can get enough votes, we'll do it the regular way and we'll put this awful person in instead. That's certainly a possibility as well. So we have to keep watching this. Right now, I think a lot of it is just kind of stress testing the Senate and seeing what Republicans pens will agree to do.

0:33:42 Thomas: It sounds like from what you're saying, it only takes the majority leader.

0:33:46 Matt: To make that decision.

0:33:46 Thomas: That's it. There's no, I mean, there's something about a vote where they could do the resolution, but then it sounds Like you said, if they don't agree, then the president can do it anyway or something. Thing. So it's, I I'm left wondering from your explanation why any chance you can't do this. It seems like you could easily do it.

0:34:00 Matt: It's up to Jonathan.

0:34:01 Thomas: It's literally up to one guy.

0:34:02 Matt: And is a great system. Yeah,

0:34:05 Thomas: Awesome.

0:34:07 Matt: And he said he is open to it and it is on the table. So that I some analysts were saying that that be an indication that he is actually not going to do it. But he is saying it is not on the tab. We have to believe him. And is a Republican at the the end of the day. And

0:34:17 Thomas: It the kind of thing where if you had 51 senators who don't want to do it, they can somehow stop the, like, does the majority leader still need the votes in some way? I can't totally tell from what you said. Oh,

0:34:30 Matt: Would take a concurrent resolution, as we were talking about, in both chambers to go through that process to recess. And that means that there would have to be motions passed in both chambers to adjourn. And if they can't agree on adjournment, if one House adjourns and the other doesn't, then that's when Trump can step in. And would actually require the entire Senate majority at all have to agree that right now that they're going to give in to Trump that way. So that might be another reason that he's announcing it now to get them whipped up and do what they can to have everybody in line by January 20th.

0:34:56 Thomas: I guess that gives me a tiny amount of hope if they do have to have 51 senators because I don't think that 51 would agree to it But, yeah, I mean, if it's 51 senators and that's it. I still don't love the odds, but we'll have to keep an eye on this because hilariously, well, we'll see. Possibly hilariously Matt Gaetz resigned right away. Already resigned from the House, which, well then maybe we'll get into that. If there's any way, now we're going to have to take our tiny minuscule W's where we can get them this next four years. If there's any way that Matt Gaetz just resigned and then won't be attorney general, that will at least be something we can all laugh at for a little while. And I'm excited about that.

0:35:19 Matt: That's what I want to talk about next, actually. Yeah, Yeah.

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0:37:38 Thomas: Matt, is this what's going on? Because I mean, I saw this idea that, okay, for one, it was super weird that Matt Gaetz resigned already. That seemed weird because, correct me if I'm wrong, I don't think any of the other nominees who are currently in office have done that.

0:37:52 Matt: That's not a thing people do, it's pretty early. Early days to be quitting. Yeah.

0:37:55 Thomas: Very weird. First I saw something about that it might be because of the timing of how how DeSantis could appoint a replacement, you know, which is like, OK, maybe that makes sense. And then I saw something about a pending ethics investigation, a report that would be released time. And I thought, oh, that could be. But I also am a little skeptical because, again, if Republicans control the damn thing anyway, skeptical that there's some like damning report that was about to be put out. ButI don't know. So that's why I'm coming to you opening arguments to tell me what's going on here with this gates matt thing sorry

0:38:26 Matt: Yeah, I think it really is that. I think he's resigning. He's joining actually a long list of people who have resigned so that these reports don't come out. I'm going to explain how this works. Would think that if they've gone to the trouble of writing up a report like this, that it would still have to come out, but that's not necessarily the case. So just to back up, so we all know what we're talking about. Have been allegations surrounding Matt Gaetz for a long time about different kinds of impropriety and involvement potentially with underage girls and with drug parties and sex parties and showing inappropriate images and videos on the house floor to his colleagues, just really terrible stuff. Bad enough that Matt Gaetz wants to destroy the Department of Justice and demolish the FBI, but I mean, we're talking about a guy who is just personally disgusting. There's no other way to see it here.

0:39:06 Matt: So the House Ethics Committee has been investigating him since April 2021. And the FBI was investigating him for some of that time. The FBI actually put in a deferral request to the House Ethics Committee to ask them to stop their work so the FBI could do the investigation themselves. And in May, 2023, the FBI withdrew that deferral requests because the FBI determined not that Matt Gaetz hadn't done anything, but they determined that they were not going to charge him with anything. That was the statement, that there there was no charge coming. So because of that, they were allowed to resume in May, 2023.

0:39:37 Thomas: Where's comey matt when you need him though just get up there all right well we cannot charge this guy but he is disgusting he's a creep we're not gonna charge him we can't but But, like, I want to make very clear that he sucks. That would have been nice.

0:39:39 Matt: Matt Yeah, that's true. There was a time that's right now. I'm just going to read you the inquiry, like what they're actually looking into just to get the full breadth of it here. An inquiry into allegations that representative Matt Gaetz may have engaged in sexual misconduct and or illicit drug use, shared inappropriate images or videos on the house floor, misused state identification records, converted campaign funds to personal use, and or accepted a bribe, improper gratuity, or impermissible gift in violation of House rules, etc. also now looking at sexual misconduct, etc., accepting gifts, dispensing special privileges and favors to individuals with whom he had a personal relationship, and seeking to obstruct government investigations of his conduct. So it's a long list, and they claim that they have spoken now with more than a dozen witnesses, 25 subpoenas, thousands of pages of documents, and they have this report that is more or less ready to release, and whether they were going to release it this week. They were not allowed to release it within 60 days of an election. So that would include either the

0:40:43 Thomas: Stupid

0:40:43 Matt: Primary or the election, general election. They have been stalling on this because they have to. If you're Matt Gaetz, you know this is coming. There's no question that this is becoming. What are you going to do about it? Because he's a young man who wants to have a long political career. He's very close with Donald Trump at this point. He is a big MAGA guy. He has he's got a future. He does not want this report coming out. One way or another, this report should come out, but it doesn't have to, unfortunately. I really wish it did have to. You would think that we'd want to know what members of Congress were doing, whether they were members of Congress or not, at the point at which they released the report. But unfortunately, under the rules, and I do have them here, and maybe we'll just link to them so you can see them for yourself, the House Ethics Committee only has jurisdiction over members of Congress. So at the point at which he is no longer a member of Congress, they do not have jurisdiction to complete their investigation and release

0:40:44 Thomas: Thing. Yeah.

0:41:34 Matt: The report.

0:41:35 Thomas: It lack jurisdiction to report on somebody?

0:41:37 Matt: That's their position because I was looking through a couple of different interpretations of this. And if you control F, resign, are a lot of instances of people resigning ahead of these things. If was about to be expelled. I think he, no, sorry, sorry, he was expelled.

0:41:47 Thomas: Did George Santos do this? I feel really familiar in a recent way, and I can't remember exactly why.

0:41:56 Matt: So that's right. Yeah, it's on everyone.

0:41:56 Thomas: Yeah, Somebody did this recently. Anyway, yeah, it seems insane. Like they got to patch up this little loophole.

0:42:04 Matt: I really think these people are going to be moving on to other political futures. We deserve to know what they're getting up to. Matt Gaetz in particular, if he's going to the attorney general. And this is somebody that Trump picked because he'd had experience being investigated by the DOJ, because he hates the DOJ, because he hates the FBI. That is why he's the pick, not because of his brilliant legal experience of which he has virtually none.

0:42:24 Thomas: Is dark. It is. This is this. It is stark to consider somebody who has been investigated and wants to get rid of it, who's been investigated for subverting his investigations that very well be in charge of those very same investigations. That is banana republic crap right there. That is the loss of anything resembling justice in a system. And it's, I that cannot believe this. This is, is insane.

0:42:26 Matt: Is dark. To the New York Times, these pics are a show of force. So thanks. Thanks a lot. Actually this morning tweeted, and this has already been deleted, but we ought to have a full court press against this weaponized government that has been turned against our people. If that means abolishing every one of the three letter agencies from the FBI to the ATF, I'm ready to get going. That is the future Attorney General Matt Gaetz. And of course, I remind everybody that the Attorney General also is in charge of the immigration courts and in charge of doing things like deciding rules for asylum and for any number of other things that are very, very important to me and my clients every day. And cannot have somebody like this in this position, let alone the lack of experience, let along the ethical and character issues. He just does not believe in the agency or the mission. And Trump has a long history of appointing people like that to break apart their own agencies. But this is one that we really do not need broken apart. All the problems that I have with federal prosecutors, obviously, if we're going to have anything resembling a rule of law, we're going to need a Department of Justice that is not political.

0:43:43 Thomas: So it really is that. I mean, you know, I bring some skepticism to these things because you sounded kind of conspiratorial a little bit. It sounded kind Of like, Now, you a left wing sort of people. Nope. It's that it makes sense.

0:43:53 Matt: It's the only explanation. It's only reason that he would be doing this. And

0:43:56 Thomas: Republicans in the Senate, I don't ask you for much, but you can do the funniest thing that we can still have in this time of not funny, not good things by not allowing him to be the attorney general. Not only would that be good for the country, even probably for a lot of those Republicans, like I think even Republicans think this is terrible for the most part, but also Matt Gaetz will be gone and will have resigned and will not get this position, which I love. So we maybe I like this. We at least have one tiny thing to root for in these very dark trying times.

0:44:29 Matt: Yeah. And he, remember, Matt Gaetz led a revolution against Kevin McCarthy and held things up through, what, 23 hours of voting or whatever, right? And there was a Republican that tried to physically assault him on the floor that had to be held back. I mean, this is not a popular man. And I think part of it too is Trump just picking somebody that he knew that everybody hated. This is a real loyalty test in itself, right, like going to do the thing for the guy I hate. Yeah, I have a quick clip to play from a representative explaining exactly how they're going about these Trump decisions.

0:44:36 Thomas: Oh, yeah, that's right.

0:45:00 Clip: He's got a mission statement. His mission and his goals and objectives, whatever that is, we need to embrace it. All of it. Every single word. If Donald Trump says jump three feet high and scratch your head, we all jump three foot high and scratch our heads. That's it.

0:45:16 Matt: There you go. That's what we're working with.

0:45:17 Thomas: All right. Who is this? And do they matter is what I'm wondering.

0:45:20 Matt: No, that's Representative Troy Nels. Not particularly important. But not a senator. I've been seeing a lot of these kinds of things, though. And he's from Texas, so what do you expect? But Republicans are lining up to, including the people that were going to be lining up for Senate Majority Leader, to say that they're ready to do whatever Trump's agenda is. He won the popular vote. He's our president. And whoever he picks are the right people. So, you see. We'll one more big announcement this week involving the transition that we need to talk about, and that is, of course, the Department of Government Efficiency, DOGE.

0:45:24 Thomas: Not a senator, at least. Funny and cool that

0:45:55 Matt: Yeah, isn't that great? Very good.

0:45:55 Thomas: Acronym god it's the ah I've changed my mind in this whole trump elon musk thing oh so funny that's another great bit classic yep

0:45:59 Matt: Let that sink in. Yeah. This guy. The worst people in the world. So we have, this proposal obviously was floating around before that Elon Musk was being promised this job at the Department of Government Efficiency in which he was going to go in and cut $2 trillion, as we talked about, that's absolutely ridiculous from a $6.75 trillion budget. And that means 80% of pretty much all discretionary funding goes out the window. We're talking massive slashes if he were to actually do that. I think he was just throwing out a number. I don't think he meant that. But the question arose about how is it legal to just sort of create this new thing? He's calling it a department. Now, just off the bat, it can't be a department because only Congress can create a department, so it is more of an advisory commission, and there's a law that governs those, the Federal Advisory Committee Act, and that seems to be what they're going for here, and they're gonna have Vivek Ramaswamy and Elon Musk head this commission. And I have the announcement here from Trump. It is ridiculous, of course, but he says it will become potentially the Manhattan Project of our time. I'm really, just moratorium. Stop calling things Manhattan Projects, please. Republican politicians have dreamed about the objectives of Doge for a long time. To drive this kind of drastic change, it will provide advice and guidance from outside of government and will partner with the White House and OMB to drive large -scale structural reform and create an entrepreneurial approach to government never seen before. That's what I want in my social security system, an entrepreneurial approach.

0:47:28 Thomas: Been tried so many times it never works, just never works it's not real conclude

0:47:31 Matt: And going to talk about the last time it was really tried, they want to conclude this on July 4th, 2026, a perfect gift to America on the 250th anniversary of the Declaration of Independence.

0:47:41 Thomas: It like the report or something they're doing

0:47:42 Matt: They're going to wrap it up allegedly within two years, two and a half years. So that's the announcement. And of course, everybody's wondering, how do you just create this thing? So I went looking because I want to know myself. And there is some precedent here. It actually was done under Reagan. And There's a lot of stuff that Trump has just been recycling, including Make America Great Again, this Reagan thing, obviously. It turns out Drain the Swamp, also something that Ronald Reagan liked to say that we've forgotten now. You know, but Ronald Reagan put together a very similar panel and it was led by, of all people, the CEO of W.R. Grace, which you might remember from a civil action. That was the company that was putting all the chemicals in the water in Woburn and here in Massachusetts. Were the people being sued. So, yeah, we need to look for, you know, maybe we're spending too much on, I don't know, environmental regulation. Could be.

0:48:17 Thomas: We need to run this government like a business that pollutes people's drinking water yeah yeah yeah spending too much on not polluting people's drinking water as a government that's that's our problem right there yeah

0:48:37 Matt: You know it's good when you're starting off with this guy. This was in 1982, so it's before the stuff came out. But this commission was a little unusual because it was not paid. It was actually under the sort of the Department of Commerce, but it was privately funded. It, because this is kind of the obsession with getting government to be... And the difference here, of course, is Trump is asking for $50 million to fund, I don't know why, this commission. I don't why they need $50 billion, but Congress, he thinks that they need to pay for it.

0:48:54 Thomas: Who's I mean he may be able to get congress to just create the stupid doge department anyway

0:49:07 Matt: That's true. Yeah, maybe they could. That's not what it's looking like right now from what we're being told, but that would be the way to actually do it. But of course as we talked about last time, there already is a government accountability office that already does all of this, and it returns right now about $133 for every dollar it costs to run it just by finding cost cutting of its own. What we're talking about is like stapling two guys onto the Office of Management and Budget to have this outside commission that's supposed to bring their big business sense in to tell us what to do. And the Grace Commission, which was formerly known as the President's Private Sector Survey on Cost Control in the Federal Government, or the the, I don't know how to pronounce it. They didn't come up with cool acronyms back then.

0:49:48 Matt: Privately funded under executive order, and it released 47 total reports and it found that the single biggest source of government waste was federal pensions.

0:49:46 Thomas: Hadn't been invented so,

0:49:58 Matt: So, you know, stop those. But, you Know, this is a source for some of those famous stats about how the Pentagon was paying $91 for screws or whatever. Whatever. That kind of stuff, yeah.

0:49:57 Thomas: Yeah oh the toilet seats and then yeah whatever yeah Yeah.

0:50:07 Matt: But 161 corporate executives, 2,000 private sector volunteers, nobody got paid. They made a whole lot of recommendations for how to cut a lot of things, and pretty much none of them were implemented, which is something that Trump wants to avoid this time. Yeah, even under Reagan, they weren't going to make it harder for people with federal pensions. That's third rail right there. It's not a department that's going to have any power. Presumably, it will have some kind of basic investigatory authority under the FACA. Was wondering about how much transparency it's going to have if we can FOIA this thing because it's an outside sort of commission.

0:50:19 Thomas: Even under Reagan, like well, Elon promised that it's all going to be transparent. It's going to be done on the internet. Yeah.

0:50:43 Matt: I even asking? Yeah, of course.

0:50:45 Thomas: So it should be fine.

0:50:46 Matt: The answer is that the core committee stuff would be, but all of the other sort of things, because in the Grace Commission, they had all these side committees and bodies that were set up, and those weren't commissions. So there's a possibility that there's a way they could do this in a non -transparent way. And we don't know exactly even how they get to the decisions or what information they're looking at. Musk has claimed that this is just going to cause a temporary hardship. But the analysis I've seen is that it's going to trigger a recession if he does what he's talking about. So it really would be great if those were not implemented. And my question, I guess, was how does Trump actually enforce what Musk wants to do? And Trump is saying that he wants to use something called impoundment to do that. And impoundement is just the president not paying for stuff. That's what it comes down to.

0:51:28 Matt: It's illegal, like a lot of the things we're talking about today. And Nixon last did it in 73 to try to stop an environmental program.

0:51:35 Thomas: Did we talk about this during Trump when it came to Ukraine or something?

0:51:40 Matt: Yes, that is the last time it came up in the news was Ukraine green funding. General Accountability Office found specifically that the Office of Management & Budget withheld funds for a policy reason, which isn't permitted, the we conclude that OMB violated the act. So no consequences for that, they just violated. And of course, Trump was impeached over this withholding, but Trump has decided that the Impoundment Control Act, which was passed in 74 because Nixon kept doing this, or you just withhold funds, unconstitutional. Is And that has not been decided. Unfortunately, the Supreme Court has reviewed the Impoundment Control Act in 1979 with Train v. City of New York, but that was a statutory interpretation question. There was nothing to do with constitutional questions in that case or the separations of powers that would be implied here when the president just refuses to spend money.

0:52:20 Thomas: Think that the constitution would care about separation of powers. I mean, I know the Supreme Court does. They care about being far and away the most powerful part of government. They're unanswerable. You would think that something like the president unilaterally overriding the will of Congress and just not paying something that they said to pay. Not unconstitutional, what would be unconstitional?

0:52:41 Matt: Find out because that's going to end up in front of the Supreme Court, obviously, if he starts doing it, and he thinks that they're going to give him a chance, and he might be right.

0:52:49 Thomas: That's something even the Supreme Court might not do. We'll see.

0:52:52 Matt: We'll see. We'll that's how he's thinking of actually implementing these changes. That's what he's saying he's going to do, and going to see a lot more of this where Trump just tells us straight out how he is going to violate the law. Forgotten, actually. It's been so long since we actually heard these things, but this this used to be pretty common.

0:53:06 Thomas: We get a bunch of great speculation about, oh, but does he mean it? Does he mean that? It mean it's like this is a worthless question just pretend he means it yeah it's

0:53:10 Matt: This time? He's just It's just bluster, yeah. Again, we're talking about a billionaire, the world's richest man, making these recommendations, someone who has made about $19 billion just in SpaceX alone since 2008. with Starlink and Tesla, yeah, gotta

0:53:27 Thomas: Like a it's a joke you would think of it's a joke premise from the daily show or something like hey let's have the world's richest man tell everyone else how to tighten their belts yeah

0:53:37 Matt: Spend their money. Yeah, that's very Very true. But, you know, this is an obvious conflict of interest if you're going to be advising on how the government should spend its money when one of the main things it's spending its money on is you. That's really a problem. I'm sure he's going to find that all of the investments in SpaceX and Starlink, yeah, a bit of waste in there. It's just such an obvious conflict. And, you Grace Know, Commission, for what it's worth, I went back and looked at the Office of Legal Counsel's memo on, because, you Now, this was pretty pretty controversial at the time to have a bunch of outside businessmen who might have business with the government, advising the government on how they should spend its money. And they had OLC overseeing the whole thing. Now, this is Reagan, who knows, but they said that they went beyond the ethics rules, that they were very careful about everything. They made everybody sign conflict of interest. They were not aware of any conflicts. I don't know how that's possible, but that's what they said. And I haven't heard anything about this here, and I'm not sure what they're going to be doing. But I mean, it is bound, again, by the Federal Advisory Committee radioactive does have these basic requirements, there could be ways around them, certainly. We'll have to see how Elon Musk is handled here. It is also a way for him, it turns out, to avoid paying capital gains tax,

0:53:51 Thomas: Those are worth it those are great worthwhile expenses yeah oh oh

0:54:41 Matt: Being

0:54:41 Thomas: I saw something about this and and I am incredibly worried about this. Okay, here's what I've seen, Matt. You tell me if this is real. I saw something that said, it makes a little bit of sense, that said hey, here's what you have to do in order to be in some kind of position. Gotta sell off your stocks so that you don't have a conflict of interest, but in exchange for doing that, we won't charge you capital gains taxes, which actually all makes sense, but then if this is Elon Musk, the amount of money that he, like his whole scheme, what the ultra rich do now is they don't ever have any income. They just borrow against their massive net worth and they somehow end up never paying taxes because if they ever had to like sell stock to actually have income, then they would pay all these taxes on it. If he gets some sort of like of moratorium break, that seems like an enormous amount of of money.

0:55:31 Matt: Yeah. Given Tesla's stock and how much he owns. And it's a deferral. He'd get a certificate of investiture, and within three months, he has to divest it and reinvest the proceeds in a US government security diversified investment fund. So he can use it to play games with his taxes.

0:55:44 Thomas: So he does have to buy something else at the very least.

0:55:48 Matt: Whenever those are sold, then you have to pay the thing that you bought with them. So it makes sense, but it is a way for him to get out of this year's taxes and put it off for quite a while, presumably as long as he's involved in this commission, which could be the rest of, well, allegedly till 2026, but I'm sure they'll find a do.

0:56:02 Thomas: That makes me feel slightly better because I was incredibly worried that it was like just a vacation from taxes.

0:56:07 Matt: Not entirely, not completely.

0:56:08 Thomas: A benefit to him, I think, but that at least makes makes me feel slightly better, but that's crazy. This is, I mean, there's, there there's ways that this grift is going to grift that we have not even begun to consider. I'm pretty sure.

0:56:21 Matt: That's been a lot of the problem, I got to say, Thomas, with this whole thing, is I have trouble thinking like one of these people. I was just thinking about how to bend the law, how to break it, how do I use everything to my advantage? Might want to find an expert in that kind of thing, because it requires a kind of creativity I don't seem to have. I'll have to develop that. Yeah.

0:56:35 Thomas: Yeah. Evil genius. Yeah, you're not, hope you this isn't an insult, Matt. You're not evil genius material. I, I, uh, I haven't even seen you twirl a mustache like this whole time that we've been doing it.

0:56:43 Matt: Yeah, no, I didn't take a single credit of Evil Genius in any of my classes. So I'm no, sorry. Yeah, I these subjects are just completely new territory. Even with the precedent of the Grace Commission, they at least made it look like they were following the law. They made it looked like they had respectable people that were intent on just trying to improve the government. But this is just, we're somewhere else. We're in a new place it the best we can and talking about what we can do. And on Monday, I want to talk more about things that could actually be done, but I'm just trying to describe what's happening this week because there's a lot of it and there's still things we haven't been able to get to today.

0:56:48 Thomas: Can't even get a mwahaha. Like I can't get anything from this guy. There's no 0 % evil genius for Matt. Yeah, this is bad. Absolutely. That's enough doom for today. But no, it really is. I've I said this a number of times, but honestly, this is for me. If anyone out there is like me, they might also enjoy the show. I want to keep track of all this. I wanna be on all this as a show. I want to know what they're doing. I just want to and and uh this episode continues that effort and we will continue for as long as it effing takes with this guy. There you go, more grift in the books, Matt. Yeah.

0:57:50 Matt: A thought too, just because you're talking about the do something people, and I've been seeing a lot this week from the, we can't do anything people. And I just want to talk to them for a minute because we've been talking a lot about a bang in advance, about but it's anticipatory compliance. And that is another form of anticipatory compliance. When you give up and you say, there's no point, there is nothing we can do, know, it's all rigged against us and he's just going to do whatever he's going to do. I know we've been saying some of that today because that is how it feels and that's what's happening. We have an obligation, especially on this show, where we are doing our best to explain how the law is supposed to work to do that. And that is one thing I'm really intent on doing. I wanted to find something here that really really inspired me. I'm just about going to memorize it. Is from Professor Anthony Michael Kreese, who's always good on so many different things at Georgia University College of Law. Been thinking a lot about this. He posted this back on November 11th. Not obey in advance means defending ideas as institutions until you lose that fight. I simply cannot tell this loud enough. The law, our Our Constitution means what we say it means. Let the Supreme Court tell us we're wrong. But until then, cede no ground to corrupted visions of law. Cede no groundbreaking to corrupted vision of law, and I have no intention of doing that. There is no reason to give in or to say that they've won or that they are able to do these things just because they are doing them or to just be like, LOL, there's no rule of law anymore, which is a big theme I've seen this week online.

0:59:07 Matt: And I refuse to join that. And I hope that our listeners can too, because we have to keep talking about this. We have to remember how things are supposed to be, and we have to hold on to basic things like ethical codes, which are going to be taking, I think, some of the biggest hits of anything in the next few years. We haveto remember that ethics exist because once we lose them, we don't get them back.

0:59:25 Thomas: Absolutely and that's exactly what I think elizabeth warren was doing and I don't think you mean it this way but lest anyone think that that's like a contradiction of what I'm saying what I what I am saying is people have the do something inappropriate. They assume someone can do something. They have these magical powers and they're not doing it. The other side of that, like you said, it's a good point is it's not as though no one can do anything. It's just that no one like Democratic senator can just somehow solve the problem for us with a magic wand. It just doesn't exist. It does, we'll point it out. If there is any way we can, it is about finding every real thing, real option that we actually have and pursuing it to the full extent we can. Sometimes that's going to be we don't have an option other than making as much noise as we can that's just that's the reality of the bullshit position we're in but that's what we hope to do here on the show and we'll keep keep up with that and that's a good message.

0:59:40 Matt: That's right. That's fine. That's fair. And the truth is somewhere between do something and we can't do anything. It always is. So let's find those places and talk about them.

1:00:24 Thomas: Right, thanks so much for listening everyone. Support the show patreon.com/law. Thank you so much to the patrons who've signed on. I hope you've enjoyed the benefit there. Follow us on Blue Sky, Open Args, and also Serious Pod, and have a great weekend. We'll see you on Monday.

1:00:38 Clip: This podcast is a production of Opening Arguments Media, LLC, All Rights Reserved. It is produced and edited by Thomas Smith, who also provided the fabulous intro and outro music used with permission.

1:00:56 Matt: Or the the, I don't