Trump’s Mafia Presidency, with Barbara McQuade

The Oath and The Office

This episode of 'The Oath and The Office' examines how procedural legal barriers, such as standing doctrine, are being used to shield Donald Trump from accountability despite clear violations of constitutional norms. Hosts Corey Bretschneider and

Key takeaways

• Procedural barriers like standing doctrine are being weaponized by the Supreme Court to prevent challenges to presidential overreach without ruling on the law's merits.
• Chief Justice Roberts' dissent in the ballroom case acknowledges the project is likely unlawful, highlighting a deep divide within the court.

Main topics

• Supreme Court standing doctrine and its role in shielding presidential misconduct
• Trump's ballroom project and constitutional violations regarding federal property

Notable quotes

"He's likely wrong on the law. I don't really see the argument on the other side."

Conclusion

Despite clear constitutional violations, procedural technicalities are being used to protect Trump's actions from judicial review. The episode underscores how

Transcript preview

Speaker 1 (0:10) Welcome to another episode of the Oath in the Office podcast. I'm John Fegelsang, joined as always by professor of political science at Brown University, author of The Oath in the Office, and the man kicked out of Wu-Tang Clan for being too hardcore, Professor Corey Bretschneider. It's good to see you, sir. Well, John, what a pleasure to show up here every week to talk about these threats to democracy that won't stop. We're going to have Barbara McQuaid, who's going to give us, you know, this is somebody who prosecuted mob bosses, who's going to talk to us about why the best analogy to understand Donald Trump is not as a traditional presidential leader, but as a mob boss. And of course, we're going to talk about the stories of the moment, including the Supreme Court's continued failure to stop this. Speaker 1 (0:51) threat to democracy, most recently by refusing to stop his clearly illegal attempt to unilaterally build this ballroom. But I also have to say, in reference to the Wu-Tang reference, you know, that alone is reason to show up here every week to hear these. I think so as well. I know. Listen, a lot of people don't know about your hardcore past in the hip hop community. And I know the Ivy League hiring committee doesn't want to hear about it. So I'm here to fill in the gaps in your resume. Professor, you know, people are paying more than four. Four dollars a gallon for gas, ridiculous amounts for groceries. Rent is crushing people. Homeownership is out of reach for millions. Childcare costs a fortune. Medical bills can wipe out a family. America needs a big gold leaf encrusted Russia inspired ballroom because that'll fix everything. And the Supreme Court is. Speaker 1 (1:40) going to let that happen. The justices ruled five to four with a very strange dissent by John Roberts. It was an unsigned order. And the majority said that the historic preservation group that sued didn't have any legal standing. So I have many questions about this, Corey. They couldn't bring themselves to say the ballroom was legal. They just more or less said, you're not allowed to ask. You know, we're not saying Trump is right. We're just saying nobody has standing to tell him he's wrong. Speaker 1 (2:08) Did the Supreme Court actually rule that Trump's ballroom is legal? Definitely not. They ruled on a procedural issue of standing that I'm going to explain. But I want to first emphasize the big picture theme here, which I think comes through in your description. This is an attempt to build a symbol of his own grandiosity. It's a ballroom that Vladimir Putin, himself the head of a kind of mafioso state, would love. And yet he wants to do it unilaterally in this authoritarian way. And there's a... Speaker 1 (2:37) substantive issue of the law of whether or not he has the power to do it. And my understanding, and I think it might be the understanding of a majority of the court, is that he definitely does not because government property, the property of the United States, is under our Constitution controlled by Congress, not by the president. And legislation backs that up. Now, having said that, what you often see from this court, and now I'm going to really answer your question in depth, is that often they... Speaker 1 (3:06) don't decide cases on the merits, on the substance of what the law is, but instead look for procedural ways to give him a victory. Think of the immunity decision. We never got to the question of the guilt or innocence of the president. We were stopped instead by this question of whether or not sitting presidents could be indicted in the first place. And, you know, there are different ways for the court to take a procedural view without saying in the end whether or not somebody's violated the law. And the way that they've done that here is known as the doctrine of standing. So there's a case, for instance, called Lujan, where the Supreme Court... Speaker 1 (3:42) much earlier than this case, talked about the fact that you need an actual case and controversy in which essentially somebody is harmed. You can't have, in their words, third party standing. So it's not like I could just come in and say, you know, the president is doing something unconstitutional. There has to be a harm to the person bringing the case. Right. And so here they're saying there is no standing. I think, you know, that's that's not right. We could talk about the details. I'll say a couple more sentences, actually. Speaker 1 (4:10) The group that brought the suit is a nonprofit that is really devoted to historic preservation. And one of its members was claiming the National Trust's job, essentially, is to protect these monuments. And one other thing to say is, you know, they're confusing us. They're trying to really say to the American people, oh, this is a technical legal thing. Let's just look away. We haven't aided the president. We've just done this technical legal thing. But in the end, you know, if our rights as American citizens, Speaker 1 (4:40) if the power of our democracy has been violated, there's got to be a way to get that across. And what they're doing increasingly using this doctrine of limited standing is taking our ability to appear in court, to vindicate our rights and to vindicate the powers under our democracy, in this case, the power of Congress. I mean, so the court did not say it's legal, and yet the construction is allowed to continue. So... Trump didn't win because the court decided it was legal. He won because the court decided the lawsuit wasn't allowed to go behind the velvet rope, right? That's how they did it. That's the Weasley way. Is that why Chief Justice Roberts said the project is, and I quote, likely unlawful? Look, if you read his dissent, it's partly about why there is, you know, possibility of standing here for the National Trust. And, you know, this is somebody who cares about American history. Speaker 1 (5:32) who sees, I think, the aesthetic harm that's being done here to our national monuments, and who also sees the common sense idea that if the law is being violated, and that's really playing the part in a lot of procedural decisions, if the law is being violated, well, there should be a way of vindicating that violation. There should be a way of appearing in court. You know, the hope here, of course, is that the suit's going to be refiled and that although there wasn't standing in this case, that members of Congress, for instance, I think should be able to bring the suit certainly and have standing because their interests and powers as an institution have been violated. And sometimes we do see members of Congress getting standing in that way. So, you know, this isn't over by any means, but the court is, you know, again. Speaker 1 (6:20) figuring out ways to take his side without ruling on the law. I mean, the D.C. Circuit had already concluded that Congress exercises control over federal property and that the administration didn't have the authority to do all this. And this is how they do it, right? Like Trump's like, can I tear apart the White House and build a $400 million ballroom? And Congress says no, and the lower courts say no, and Robert says it's illegal. But five justices say, we're not saying yes, but keep building. Speaker 1 (6:49) Yeah, I mean, it's it's so often the case that and we see this in the shadow docket decisions that even when Trump is wrong, he's right. And that rightly makes us suspicious of this Supreme Court, because what it seems like, you know, if this was just taken in isolation, it might not be the case, but that they're using denial, for instance, of standing as a way of vindicating the president and allowing him to move forward. So even though I mean, just, you know, to capture your main point that you started with. Speaker 1 (7:17) He's likely wrong on the law. I don't really see the argument on the other side. To my mind, the Constitution, like in birthright citizenship, sometimes it's clear that the property of the United States is in the control of Congress. And yet what he's trying to do is a fundamental alteration, a destruction of that property and reconstruction of it. Look, it's one thing if he wants to. decorate the Oval Office with gold leaf or fake gold leaf or whatever. I guess he claims it's a high-end gold leaf. I don't want to get the facts wrong. That's fine. But when you're altering the building, destroying it essentially and rebuilding it, that looks like a clear violation of Congress. And so... Speaker 1 (7:58) you know, trying to basically push the suit away as long as they can on the grounds that there's a lack of standing. I should say, too, there is standing for an organization that is devoted to the preservation of this national monuments, of the national aesthetic. And this individual, to my mind, certainly could have had standing. And as Roberts clarifies in his dissent. This wouldn't be the first time that there have been similar instances of standing being granted. And so the court is picking and choosing here. Yeah, because I mean, fortunately, to pick a winner that they like. And that's Donald Trump. But again, they're throwing so many lies at the wall in the court. I mean, you know, they were saying for so long, you should give us deference because it's a national security argument. Right. We have to have the chief executive first waltz. Speaker 1 (8:43) Our lives depend on these chandeliers, folks, and the marble floors. You think of the children, right? I mean, they don't even acknowledge that. They tried the private funding argument, that this changes the requirement for congressional authorization. They didn't even acknowledge that, the dishonest arguments that the White House was putting forward. But I'm curious. Just on that point, John, it's so important. The second you hear national security in regard to an assertion of presidential authority, and think of Nixon's claims that a lot of what he was doing was based on national security, even though it had nothing to do with it, that's when you start to call BS. And the facts really just don't support the president in this case. There was a bunker underneath the White House. Speaker 1 (9:27) this destruction and creation of the ballroom wasn't a national security issue to help the bunker. It was obviously, as he says in his public statements, to further his own idea of what beauty, misguided idea of what beauty is. And that would be one thing if he had the power to do it. But that's the power of Congress. If he wanted to build this ballroom, there was a way to do it. It was to get authorization from the body that actually under the Constitution could give it to him. God, I'm so tired of talking about this. Speaker 1 (9:55) ballroom. I'm so tired of this Marie Antoinette reality we're living in. But I got to ask you a couple of dumb legal questions before I get off it. I mean, does allowing construction to continue while there's still litigation in the courts create what you lawyer folks call a facts on the ground problem? Well, you know, obviously there is a question of facts on the ground, but you could have an injunction that. You know, if members of Congress, for instance, are able to get standing and win this case, that requires putting it all back. And I think that you can't allow a bad actor like Donald Trump to create an emergency and then say, hey, there's an emergency or to create facts on the ground and then claim that there's no way to repair it because it's a done deal. You know, the reality is, you know, this is a real estate mogul who's fond of. Speaker 1 (10:43) bending the rules and in real estate just to go into his terrain. If you build the building too high and you're violating the zoning restrictions, it might cost you a lot of money. But yeah, you could be asked to take it off. Now, sometimes that doesn't happen. There's a famous case actually on the Upper West Side, and I believe it's the building that's in succession, which really adds to it, in which they built too high and they made that argument. In that case, my understanding is they were allowed to basically continue and violated the zoning requirements. Speaker 1 (11:13) But a court can make a more sensible decision, which is you intentionally violated the law. They know that they're violating the law. They're on notice. They know that there's this argument about Congress's power and, well, fact of Congress's power. So being told to put it back through a judicial ruling is still a possibility. It will cost money. Likely, of course, it's going to be money that the taxpayers pay, unfortunately. But you know what? It's worth it to erase the memory of Donald Trump from our national White House, from our national monuments. I mean, I just I just I don't know. Could this ruling somehow expand, Professor, to presidential power beyond Trump in this particular ballroom? Well, the wider issue, which, you know, I noted, is that it's an example of why it's sometimes even if a president is violating the law. Speaker 1 (12:04) why one of many reasons why stopping him in court is very difficult. So a president, for instance, who commits a crime, there is now a decision, one out of thin air, that says even a former president, can't be prosecuted in regard to his official duties. Now, there are ways of overcoming it. For instance, it's a presumption. It has to be within the outer perimeter of official duties, but it's certainly deeply protective of a president. It protects Donald Trump, for instance, in this case, from being sued, almost certainly, for his decisions here, because those lawsuits would be stopped by a case called Fitzgerald, which gives immunity to presidents from civil cases in regard to his official duties. Speaker 1 (12:44) And he would say, you know, the creation of this ballroom was his official duty. So there are a lot of ways in which presidents, even when they're acting in ways that are illegal, can't be stopped. Immunity is one. And then standing is another. Who has the power to stop them? Not any citizen. That's clear under Lujan, under this case. What really is going to become tragic is I am predicting, and I think we will see members of Congress trying to stop this ballroom, trying to get standing. And if this court refuses that, then we've really got a problem. Because if Congress can't assert its own power and stop a president violating it, we're in real trouble. Okay, well, meanwhile, let me talk about Stanford, because this lawsuit was brought by the Free Speech Group Foundation for Individual Rights and Expression. Speaker 1 (13:32) or FIRE, on behalf of the Stanford Daily, the newspaper that showed that these student journalists were facing a lot of demands they censor themselves and were withdrawing stories over fear of government retaliation. And U.S. District Judge Noel Wise just ruled, 90-page decision, that the Trump administration broke the First and Fifth Amendments by weaponizing immigration laws to deport international students just because they criticized not Judaism. but the civilian government of Israel's actions in Gaza. What exactly did the Trump administration do that Judge Wise found unconstitutional? Speaker 1 (14:08) Well, it's part of a pattern. They didn't just do it in the Stanford case. I think the most famous one that we've talked about in depth, and this is really the same issue as the Khalil case in New York, Columbia. Khalil, of course, was a representative of Palestinian protesters negotiating with Columbia. And at first, the administration was saying things about, you know, that they hinted that there was illegal action or something. But eventually, we saw through their briefs that what they were saying, and I'm bringing this up because it's exactly the same thing that they're Speaker 1 (14:38) arguing in the Stanford case, in which they've been stopped again, is that if you're not a citizen, you don't have First Amendment rights. You don't have free speech rights. And unfortunately, there is a case actually also involving Stanford called Mandel, in which a lecturer was coming in, a Marxist lecturer was coming into the country to give a lecture in Stanford and was successfully kept out. And what the court said there is if you're outside the country, you don't have a First Amendment right. Speaker 1 (15:07) Now, this is going way beyond that because, of course, we're talking about legal residents. These aren't undocumented people. They have a right to be here. And yet what the administration is saying is if we don't like your speech, even though the First Amendment free speech clause protects all opinions, all viewpoints, if we don't like what you're saying, even if you haven't committed a crime, we can throw you out. Speaker 1 (15:29) Oh, yeah. Yeah. And, you know, pro-Israel speech or pro-Palestinian speech. You know, it's not just about that topic. It's anything that they don't like. That's their claim. That's criticizing the president, for instance.